text:
    A94A0892, A94A0893.
    CRS SIRRINE, INC. v. DRAVO CORPORATION et al.; and vice versa.
    (445 SE2d 782)
   Andrews, Judge.

Dravo Corporation (Dravo) and its wholly owned subsidiary, Weyher/Livsey Constructors, Inc. (Weyher/Livsey), entered into an agreement with CRS Sirrine, Inc. (Sirrine) to jointly pursue the contract for construction of a large, technically complex power plant for the United States Navy at the Norfolk Naval Shipyard in Portsmouth, Virginia. The agreement combined the parties’ capabilities to design and construct the project. Although Weyher/Livsey had experience in constructing large power plants, it lacked the necessary expertise and experience to design the power plant and perform the engineering work on the project. Although Sirrine had expertise and experience in the design and engineering aspects of the power plant project, it lacked the capability to construct the power plant. Dravo was included in order to assure bonding capacity on the project.

As a summary of the intended project, the Navy prepared conceptual diagrams, drawings and initial performance specifications and a narrative about the power plant and required that potential bidders on the project first submit technical proposals explaining their qualifications and how they would design and construct the project. If the Navy accepted a potential bidder’s technical proposal, then it became eligible to submit a bid on the project. The power plant was a design-build project in which fixed-price competitive bids were submitted on the basis of preliminary design and engineering done by the bidders and the detailed design and engineering work was done after the award of the contract on a fast track basis in conjunction with the construction of the project.

In a letter agreement, the parties agreed that Sirrine would take the lead in preparing and submitting the technical proposal and, if the technical proposal was accepted, Weyher/Livsey would assume primary responsibility for preparing and submitting the bid based on the technical proposal. Sirrine was responsible for supplying the technical information needed to prepare the bid. The agreement further provided that Sirrine, as design engineer, would not guaranty the accuracy of Weyher/Livsey estimates used in preparing the bid. Pursuant to their agreement, a technical proposal was submitted and accepted and a bid of over $100,000,000 was submitted to the Navy in the name of the Weyher/Livsey-Dravo-Sirrine Joint Venture. The joint venture was the low bidder and was awarded the contract. The parties subsequently signed a formal joint venture agreement setting forth their respective responsibilities in pursuing and performing the construction contract and executed a contract with the Navy to build the project.

The power plant cost substantially more to construct than the winning bid and Dravo and Weyher/Livsey incurred losses on the construction aspects of the project in excess of $30,000,000. Dravo and Weyher/Livsey brought suit against Sirrine alleging that breaches by Sirrine caused over $12,500,000 of the loss in added costs to construct the project. The action was tried before a judge. The trial court found that Sirrine breached contractual and fiduciary duties owed to Dravo and Weyher/Livsey under the joint venture agreement and entered judgment against Sirrine in the amount of $5,518,812.

The trial court’s rulings on liability and damages are contained in the court’s 24-page order and judgment setting forth its findings of fact and conclusions of law. In general, the court ruled that Sirrine breached contractual and fiduciary duties imposed upon it to provide sufficient, accurate information to Weyher/Livsey upon which to base the bid; to make reasonable efforts to design the project within budgeted quantities; to track quantities in its design, and to promptly notify Weyher/Livsey or Dravo that budgeted quantities would be exceeded.

The trial court considered evidence relating to the various types of damages that Weyher/Livsey and Dravo claimed were caused by Sirrine breaches.

The plaintiffs claimed that Sirrine breaches of duty caused increased quantities of construction materials needed to build the project over the amounts in the fixed-price bid, which was based on design and technical information provided by Sirrine. The court concluded that quantities of various materials increased dramatically over the bid quantities; that a part of the increase was attributable to bid errors made by Weyher/Livsey estimators, but that the majority of the increase was attributable to Sirrine breaches of its duties under the joint venture agreement.

The court considered evidence of the increased construction material quantities and noted that in compiling evidence of quantity increases over the bid amounts, the plaintiffs avoided claiming damages caused by Weyher/Livsey’s own bid errors by retaining experts to re-estimate and re-bid portions of the project in order to establish the quantity amounts which should have been bid by Weyher/Livsey based on the information available at the time of the original bid. The re-estimated bid amounts were then compared to the quantity amounts in Sirrine’s post-bid detailed released for construction drawings to determine the increase in material quantities. The court further noted that the evidence presented excluded any quantity increases resulting from field changes, purchasing errors, change orders, or other post-bid design changes required by the Navy. The trial court concluded that “[comparing the re-estimates to the released for construction drawings reveals that the Project grew from what reasonably could have been estimated by experienced estimators with engineering experience (as represented by the re-estimate) and what Sirrine designed into the job (as revealed by the released for construction drawings).”

In total, the court found the evidence showed quantity increases costing the plaintiffs $6,417,086 in additional materials and labor, none of which was attributable to bidding errors of Weyher/Livsey. The court further found “that Weyher/Livsey was overconfident in its ability to bid the Project and therefore Sirrine is not completely responsible for the quantity growth over a reasonable, should have been bid estimate. Weyher/Livsey or others are responsible for approximately 40% of these losses.” We conclude this means the trial court found that in addition to Weyher/Livsey bid errors, which were eliminated from the $6,417,086 in damages claimed, post-bid actions by Weyher/Livsey or others were responsible for 40 percent of the claimed quantity growth damages and breaches of duty by Sirrine caused the remaining 60 percent of the claimed quantity growth damage in the amount of $3,850,252.

The trial court found the evidence showed the plaintiffs incurred costs of $671,202 for disruption and loss of labor productivity caused by quantity growth in the electrical and piping area, lack of prompt notice from Sirrine of such growth, and Sirrine’s crowded piping design. The court found that, because of breaches of its contractual and fiduciary duties, Sirrine caused this disruption damage.

The trial court concluded that the end date of the project was delayed 91 days because of Sirrine’s failure to give timely notice of quantity growth, Sirrine’s late issue of released for construction drawings, and increased material quantities Sirrine designed to be installed into the project. Additionally, the court found another 102 day delay was caused by Sirrine design error. The plaintiff’s costs attributable to the delays were $1,944,700 and the court concluded the evidence showed that breaches by Sirrine caused 80 percent of the costs associated with the delays in the amount of $1,555,760.

With respect to additional costs incurred for certain backcharges and Navy punchlist items, the trial court concluded Sirrine breaches caused 50 percent of the $1,442,535 in backcharges claimed (amounting to $721,267) and all of the punchlist items in the amount of $1,111,751.

The plaintiffs also claimed that due to Sirrine breaches they incurred additional costs for re-design ($489,845), software corrections ($430,000), and payments to obtain as-built drawings ($73,500), for a total cost of $993,345. The court concluded that Sirrine was “partially liable for these costs.”

After totaling the amount of damages the court found were caused by Sirrine breaches in each claimed area, the trial court then reduced the total amount to account for unspecified risks assumed by Weyher/Livsey and determined that Sirrine breaches caused damage to Weyher/Livsey and Dravo in the total sum of $5,518,812.

In Case No. A94A0892, Sirrine appeals from the trial court’s judgment. Dravo and Weyher/Livsey cross-appeal in Case No. A94A0893.

1. In its first enumeration of error, Sirrine claims the trial judge erred by imposing time limits on the time it had to present its case and cross-examine witnesses. This action was tried in a bench trial for seven weeks in the Complex Civil Litigation Division of the Fulton County Superior Court. The pre-trial order, over 500 pages in length, listed more than 2,500 documentary exhibits subject to being tendered at trial (over 1,000 by the plaintiffs and almost 1,500 by the defendant) and over 130 witnesses which the parties indicated they would or might call to testify (83 by the plaintiffs and 53 by the defendant). By defense estimates, millions of pages of documents were produced during extensive pre-trial discovery. Suffice it to say, the case was complex and the record voluminous.

In the pre-trial order, which contemplated a jury rather than a bench trial, the parties gave a joint estimate that the case would take five weeks to try. The bench trial commenced on April 19, 1993 and was tried Monday through Thursday of each succeeding week. On May 11 the trial had proceeded for over three weeks and the plaintiffs were still presenting their case. The defendant had conducted extensive cross-examination of witnesses equaling or exceeding the time spent by the plaintiffs on direct examination. After a noon break, the trial judge stated for the record that he had been informed by plaintiffs’ counsel that their case would take another two weeks to conclude and that defense counsel had informed him Sirrine would thereafter' require another four weeks to present its defense.

The trial court ordered that plaintiffs’ case was to be concluded by the end of the trial day on May 17, at which time defendant’s case would commence and be concluded on June 3. The trial court also ruled that a time limit would be imposed on all parties for the cross-examination of witnesses for the remainder of the trial and suggested that cross-examination be limited to a maximum of four hours per witness. The trial judge then inquired as to whether trial counsel agreed to the limitations. No objection was made by plaintiffs’ counsel to any of the time limitations. As to the four-hour limitation on cross-examination, defense counsel responded, “That’s fine with me, your honor.” As to the time limitation for presentation of Sirrine’s defense, defense counsel stated, “We will do, obviously, the very best job we can to present our case within the time allowed. Without knowing right now whether or not that will enable us to put it on exactly in the way that we feel like it’s most effective, I feel like I have to object to that portion of the court’s ruling limiting our time to those days.” The trial judge responded, “That’s fair,” and the trial proceeded.

Since defense counsel agreed to the time limitation for cross-examination suggested by the trial judge, the enumeration of error as to this limitation presents nothing for our review. Hightower v. McIntyre, 170 Ga. App. 269, 270 (316 SE2d 849) (1984).

In Newton Commonwealth Property v. G + H Montage, 261 Ga. 269, 270 (404 SE2d 551) (1991), the Supreme Court held that imposing a time limit on the trial of a complex case was reversible error where it had “the effect of prejudicing the parties and preventing a full and meaningful presentation of the merits of the case.” In Intl. Assn. of Machinists v. Street, 215 Ga. 27, 40 (108 SE2d 796) (1959), reversed on other grounds, 367 U. S. 740 (81 SC 1784, 6 LE2d 1141) (1961), the Supreme Court addressed defense counsel’s claim that the trial judge’s “hasty procedure deprived them of their right to make a proper and adequate defense.” The Court stated that “[i]f the legal rights of the parties are not prejudiced or denied, this court will not interfere with the discretion of the trial court in matters of practice in the hearing and disposition of causes before it unless this discretionary power has been exercised in an illegal, unjust, or arbitrary manner.” Id.

The trial court “has inherent power to control the course of the trial. . .” (Carmichael v. Carmichael, 248 Ga. 216, 218 (282 SE2d 71) (1981)) and the procedural rules governing trials are “construed to secure the just, speedy, and inexpensive determination of every action.” OCGA § 9-11-1. Obviously, parties are not entitled to present their cases ad infinitum but neither may the trial court impose limits on the trial of the case which have the effect of excluding relevant, non-cumulative evidence simply because it delays the conclusion of the trial. However, trial courts do have the discretion to exclude relevant evidence “ ‘if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ ” Hicks v. State, 256 Ga. 715, 720 (352 SE2d 762) (1987).

The trial court did not explain its rationale for imposition of the time limits. However, we need not determine in this case whether the trial court had the discretion to impose such limits and, if so, whether or not that discretion was properly exercised. Even assuming the imposition of the trial time limit was error, Sirrine must demonstrate harm resulting from the error. Although defense counsel objected to the time limit imposed on the presentation of Sirrine’s case, the basis for the objection was not that the time limit would necessarily prejudice the defense or result in the exclusion of relevant evidence. Rather, the objection was conditioned by counsel’s statement that he did not know at the time whether or not the time limit would allow for a full and fair presentation of the defense. By responding, “That’s fair,” the trial court did not overrule the objection and indicate the time limit would be inflexibly applied, but indicated a willingness to consider any subsequent showing that the time limit would prejudice the defense. The record shows Sirrine made no further objection that the trial time limit actually had the effect of prejudicing the defense nor at any time during the trial did Sirrine make an offer of proof of any evidence that the time limit prevented it from introducing. In the absence of any such offer of proof, we find no basis to conclude that the time limit prejudiced Sirrine. Griffin v. Henderson, 117 Ga. 382, 383 (43 SE 712) (1903) (to preserve claimed error for appellate review, it must appear the excluded evidence was material and that it was expressly called to the attention of the trial court at the time of its exclusion); Money v. Daniel, 188 Ga. App. 215, 217 (372 SE2d 305) (1988).

2. A substantial portion of the damages claimed by Dravo and Weyher/Livsey against Sirrine resulted from the fact that the quantities of construction materials needed to build the project greatly exceeded the estimates for construction materials on which the joint venture’s fixed-price bid was based. In its second enumeration of error, Sirrine claims that section 9.3 of the joint venture agreement unambiguously released Sirrine from any responsibility for damages resulting from increases in construction material quantities and that the trial court erred in failing to enforce section 9.3 to shield Sirrine from any such claims.

Article 9 of the joint venture agreement, which dealt with Sirrine engineering errors, provided as follows: “9.1 Notwithstanding Article 8.2, Sirrine shall not be liable to W/L [Weyher/Livsey] or Dravo for any increase in the direct cost to W/L and Dravo to perform their respective scopes of work resulting from Sirrine’s engineering errors and omissions detected by Sirrine and noticed to W/L and Dravo or detected by W/L and Dravo prior to W/L’s or Dravo’s expenditure of any costs in the performance of their work in reliance thereon.

“9.2 Notwithstanding Article 8.2, Sirrine shall not be liable to W/L or Dravo for any increase in the direct cost to W/L and Dravo to perform their respective scopes of work resulting from Sirrine’s engineering errors and omissions detected by Sirrine and noticed to W/L and Dravo subsequent to W/L’s or Dravo’s expenditure of any costs in the performance of their work in reliance thereon up to a cumulative maximum cost to W/L and Dravo of Seven Hundred Fifty Thousand and No/100 Dollars ($750,000.00); over and above which Sirrine shall be liable to W/L and Dravo for any such increase in the direct cost to W/L and Dravo to perform their respective scopes of work resulting from Sirrine engineering errors that become apparent subsequent to W/L’s or Dravo’s expenditure of any costs in the performance of their work in reliance thereon.

“9.3 Notwithstanding any of the forgoing, Sirrine shall have no risk, liability, or accumulation will occur of error and omission charges for construction material quantity variations if the actual quantities are different from those in the bid to the Navy. W/L will provide Sirrine with budget quantities for all functional areas of Project and Sirrine’s detail design will make every reasonable effort to stay within these quantities within the requirements of the Prime Contract. W/L will be notified promptly if Sirrine believes quantities will be exceeded.”

Article 8 of the joint venture agreement dealt with performance of and responsibility for work. In section 8.1 each party agreed to perform its individual scope of work as set forth in Article 6. Section 8.2 provided that, unless provided otherwise in Article 9, each party accepted full responsibility for its scope of work and would indemnify the others for damages resulting from untimely, defective or non-conforming work. Section 8.3 provided that Sirrine’s liability under the joint venture agreement was limited to liabilities arising out of its scope of work specified in Article 6. In Article 6, which defined the scope of each party’s work, Sirrine’s design and engineering responsibilities were set forth. Section 2.1 of the joint venture agreement, which dealt with the pre-bid work of the parties, provided that: “In the event the Joint Venture is awarded the Prime Contract, Sirrine will be compensated for its costs and expenses . . . pursuant to Artiele 11 incurred in making any proposal and the pursuit of the Project up through and including the execution of the Prime Contract, all of which shall be deemed part of Sirrine’s original scope of work specified in Article 6 and therefore shall be deemed a cost in determining Sirrine’s costs of performing its scope of work for purposes of . . . incentive compensation.”

The joint venture agreement further provided that it was the entire agreement of the parties; that all prior written and oral agreements were terminated and merged into the joint venture agreement, and that the agreement shall be interpreted according to the laws of Virginia.

The trial court ruled that section 9.3 was ambiguous and concluded it was not the intent of the parties that the section relieve Sirrine of all responsibility for damages resulting from increases in construction material quantities caused by any errors or omissions in Sirrine’s work.

Under Virginia law, “[ascertainment of the intent of the contracting parties is the cardinal rule in the construction of agreements. To do that the court will put itself in the situation occupied by the parties and look to the language employed, the subject matter and purpose of the parties, and all other pertinent circumstances. Occupying that status, it will apply the language used to the subject matter and object sought to be accomplished and so judge and determine its meaning.” (Citations and punctuation omitted.) Paul v. Paul, 203 SE2d 123, 125 (Va. 1974). See Town of Ashland v. Newman, 175 SE 724, 726-727 (Va. 1934). “[Wjhere an agreement is complete on its face, [and] is plain and unambiguous in its terms, the court is not at liberty to search for its meaning beyond the instrument itself.” (Citation and punctuation omitted.) Ross v. Craw, 343 SE2d 312, 316 (Va. 1986). However, “when ambiguous contractual provisions are at issue, extrinsic evidence is available to discern the intention of the parties.” Dart Drug Corp. v. Nicholakos, 277 SE2d 155, 157 (Va. 1981). “An ambiguity exists when language admits of being understood in more than one way or refers to two or more things at the same time.” Renner Plumbing &c. v. Renner, 303 SE2d 894, 898 (Va. 1983). Whether or not a contract is ambiguous is a question of law for the court. Wilson v. Holyfield, 313 SE2d 396, 398 (Va. 1984).

The first sentence of section 9.3 is ambiguous on its face. In view of the language of section 9.3, other provisions in the joint venture agreement, the circumstances of the agreement, and extrinsic evidence bearing on the intent of the parties, we agree with the trial court’s conclusion that section 9.3 is ambiguous and cannot be interpreted as shielding Sirrine from all responsibility for increases in construction material quantities even if such increases were caused by errors or omissions in Sirrine’s pre-bid or post-bid design and engineering work.

Under Article 8 of the joint venture agreement, the parties agreed to accept responsibility for their own scope of the work. Article 6 and section 2.1 of Article 2 make clear that the scope of Sirrine’s work encompassed design and engineering responsibilities in both the prebid pursuit of the project and the post-bid construction of the project. The purpose of section 9.2 was to provide that, notwithstanding the responsibilities undertaken by Sirrine in section 8.2 for the scope of its work, Sirrine was not liable for the first $750,000 in damages resulting from engineering errors and omissions detected by Sirrine and noticed to Weyher/Livsey and Dravo after they relied upon and incurred damages as a result of the errors. In effect, this section provided for a $750,000 deductible on damage claims against Sirrine for errors in its design and engineering work.

There was also extrinsic evidence found credible by the trial court bearing on the intent of the parties. The trial court noted that a Sirrine official admitted that it was not Sirrine’s intention to shield itself from all liability regardless of the quality of the work it performed. See Algernon Blair, Inc. v. Norfolk Redevelopment &c., 108 SE2d 259, 262 (Va. 1959) (interpretation of parties entitled to great weight in construing an ambiguous “no damage” clause in a construction contract).

Considering the language and purpose of the joint venture agreement and other evidence of the parties’ intention, the trial court concluded that under section 9.3 the parties intended that the risk construction material quantities used to build the project would exceed the amounts estimated in the bid were divided between Sirrine and Weyher/Livsey. As to the pre-bid phase of the project, design and engineering work was done by Sirrine and the estimating and bid preparation was done by Weyher/Livsey based on Sirrine’s work and other technical information provided by Sirrine in support of the bid. The intent of section 9.3 was that Weyher/Livsey, and not Sirrine, should bear responsibility for damages caused by Weyher/Livsey’s own errors in estimating and bid preparation and that Sirrine should remain responsible for damage resulting from its pre-bid design and engineering errors. As to the post-bid construction phase of the project, the trial court noted that the last two sentences of section 9.3 “imposed affirmative obligations upon Sirrine to (i) make every reasonable effort with its detailed design to stay within budgeted quantities for all functional areas of the Project within the requirements of the contract with the Navy and (ii) notify Weyher/Livsey promptly if Sirrine believes quantities will be exceeded.”

Applying Virginia law, we find the trial court’s conclusions as to section 9.3 to be a reasonable and just interpretation of the intention of the parties.

3. In their first enumeration of error on cross-appeal, Weyher/ Livsey and Dravo contend the trial court erred by failing to award them pre-judgment interest because the joint venture agreement provides that each party will indemnify the other for “all loss, costs, expenses, and damages (including but not limited to liquidated, special, indirect, and consequential damages) resulting from such Party’s performance of its scope of work in an untimely, defective, or manner that is non-conforming with the Prime Contract.”

We find no error in the trial court’s failure to award pre-judgment interest in this case. Weyher/Livsey and Dravo cite no Virginia law in support of their contention that the language in the joint venture agreement should be construed as an agreement that pre-judgment interest would apply to the present claims. Based on our determination in Division 2 that Virginia law applies to interpretation of the agreement, absent a contrary showing, we will presume the trial court properly determined there was no agreement between the parties as to pre-judgment interest. See Kinnick v. Textron Fin. Corp., 205 Ga. App. 429, 430 (422 SE2d 303) (1992). Since the damages sought in this case were unliquidated (see Nisbet v. Lawson, 1 Ga. 275, 287 (1846)), any pre-judgment interest awardable was governed by OCGA § 13-6-13. Braner v. Southern Trust Ins. Co., 255 Ga. 117, 119-120 (335 SE2d 547) (1985); Tower Financial Svcs. v. Smith, 204 Ga. App. 910, 917-918 (423 SE2d 257) (1992); Bishop Contracting Co. v. North Ga. Equip. Co., 203 Ga. App. 655, 656-657 (417 SE2d 400) (1992). Thus, the award of pre-judgment interest was in the discretion of the trial judge as the trier of fact in this bench trial. PDA, Inc. v. Haas Corp., 185 Ga. App. 785, 787 (366 SE2d 169) (1988); Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576, 579-580 (373 SE2d 758) (1988). We find no abuse of discretion.

4. All the parties take issue with the trial court’s determination of damages. In their second enumeration of error on cross-appeal, Weyher/Livsey and Dravo claim the trial court improperly reduced the damages for which Sirrine was responsible. In its third enumeration of error, Sirrine claims the judgment for damages, except as to damages for backcharges and punchlist work, must be reversed because there was no basis for the court’s determination that Sirrine, rather than others, caused such damages.

In its order and judgment in the case, the trial court stated that it determined the amount of the claimed damages that were caused by Sirrine’s breach of its contractual and fiduciary duties by “determining what portion of each damage area was caused by actions of Sirrine” and totaling those amounts. The trial court previously concluded in its order that breaches by Sirrine caused: (1) 60 percent of the quantity growth costs in the amount of $3,850,252; (2) all of the disruption costs in the amount of $671,202; (3) 80 percent of the delay costs in the amount of $1,555,760; (4) 50 percent of the backcharges in the amount of $721,267, and (5) all of the punchlist items in the amount of $1,111,751. These amounts total $7,910,232 in damages which the trial court found were caused by Sirrine breaches. In addition to this amount, the trial court found that Sirrine breaches caused part of another $993,345 in claimed damages for re-design, software corrections, and additional drawings.

The trial court stated that after totaling the amount of the damages it determined were caused by Sirrine breaches of duty, it discounted the final number “to account for risks that Weyher/Livsey assumed during or through the bid and construction process” and determined that “Sirrine breaches of its contractual and fiduciary obligations damaged Weyher/Livsey and Dravo in the cumulative amount of $5,518,812.” Regardless of what portion of the last $993,345 in claimed damages the court determined were caused by Sirrine breaches, it is clear that the trial court determined that breaches by Sirrine caused more than $7,910,232 in damages to the plaintiffs. The reduction of the judgment amount by at least 30 percent to $5,518,812 to account for risks assumed by Weyher/Livsey cannot be reconciled with the court’s previous determination that more than $7,910,232 in damages were caused by Sirrine breaches of its contractual and fiduciary duties. Obviously, the plaintiffs did not assume the risk that Sirrine would breach its duties to them under the joint venture agreement. It appears that the reduction for “risks that Weyher/ Livsey assumed during or through the bid and construction process” indicates the trial court also found that a significant portion of the damage at issue was caused by factors in the bid and construction process other than breaches of the joint venture agreement by Sirrine. Nevertheless, it was inconsistent and erroneous for the trial court to account for these other causal factors by reducing damages it had already concluded were caused by Sirrine breaches.

“In a bench trial the court sits as the trier of fact and his findings shall not be set aside unless clearly erroneous. OCGA § 9-11-52 (a). The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.” (Citations and punctuation omitted.) Parking Co. of America v. Sucan, 195 Ga. App. 616, 617 (394 SE2d 411) (1990). However, the court’s judgment in a non-jury trial will be reversed where it is apparent that it rests on erroneous reasoning or on an erroneous legal theory. Scott v. Purser Truck Sales, 198 Ga. App. 611, 612 (402 SE2d 354) (1991); Ayers v. Yancey Bros. Co., 141 Ga. App. 358, 361 (233 SE2d 471) (1977).

Since we are unable to reconcile these inconsistent findings in the court’s order, we cannot determine the amount of damages the trial court concluded was caused by Sirrine breaches of its contractual and fiduciary duties. We will not speculate whether or not the trial court intended to modify its previous conclusions with respect to Sirrine’s liability for some or all of the various types of damages claimed. Until the trial court clarifies its conclusions as to the damage it found was caused by Sirrine breaches, as opposed to damages caused by other factors, we are unable to fully review Sirrine’s claim that there was no rational basis for the trial court to apportion the damages and conclude that Sirrine breaches, rather than other factors, caused the damages awarded in the judgment. Accordingly, we reverse the judgment and remand the case for the trial court to clarify its judgment on the above damage issues and enter a new judgment in accordance with this opinion. The right of any party to appeal from the entry of a new judgment is preserved.

5. The judgment of the trial court is affirmed as to the issues addressed in Divisions 1, 2, and 3, supra. We need not address enumerations of error 3 and 4 in the cross-appeal of Dravo and W eyher/Livsey.

Judgments affirmed in part and reversed in part and case remanded with directions.

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

Decided June 16, 1994

Reconsideration denied June 29, 1994

Gleaton, Scofield, Egan & Jones, M. Michael Egan, Jr., Heiskell, Donelson, Bearmán, Adams, Williams & Caldwell, Thomas 0. Helton, for appellant.

Jones, Day, Reavis & Pogue, Gregory R. Hanthorn, John H. Williamson, for appellees.

       It appears that most jurisdictions considering the issue have found trial courts have the discretion to set reasonable trial time limits in protracted cases to prevent needless delay or waste of time, as long as the limits are not arbitrary, do not exclude probative, non-cumulative evidence simply because its introduction will extend the case, and the limits are sufficiently flexible to accommodate adjustment if it appears the court’s initial assessment would prejudice a party by preventing a fair presentation of the merits of the case. See MCI Communications Corp. v. American Tel. &c. Co., 708 F2d 1081, 1171 (7th Cir. 1983); Johnson v. Ashby, 808 F2d 676, 678 (8th Cir. 1987); Secretary of Labor v. DeSisto, 929 F2d 789, 794-796 (1st Cir. 1991); Flaminio v. Honda Motor Co., 733 F2d 463, 473 (7th Cir. 1984); United States v. Reaves, 636 FSupp. 1575 (E.D. Ky. 1986); Varnum v. Varnum, 586 A2d 1107, 1114-1115 (Vt. 1990).

       Although the trial court does not explicitly state that it applied Virginia law to interpret the contract, we will enforce the parties’ contractual choice of Virginia law to interpret the provisions of the joint venture agreement. Kinnick v. Textron Fin. Corp., 205 Ga. App. 429 (422 SE2d 303) (1992).

       We do not deal with Sirrine errors detected and noticed prior to reliance thereon as contemplated in section 9.1.

         Ultimately, the trial court determined that Sirrine did not provide Weyher/Livsey or Dravo the required notice of errors and omissions under section 9.2 and ruled that the deductible did not apply.

       Without giving specifics, the trial court also based its conclusion on public policy concerning exculpatory clauses. We need not address this additional basis since we have determined that the court’s interpretation of section 9.3 was correct for other reasons.

       In a contract claim where multiple causes contribute to damages, the plaintiff bears the burden of demonstrating a reasonable basis for determining that the damages sought were caused by the defendant’s breach of the contract. See Crawford & Assoc. v. Groves-Keen, Inc., 127 Ga. App. 646, 650 (194 SE2d 499) (1972); Turner v. Connor, 192 Ga. App. 348, 349 (385 SE2d 19) (1989); Ayers v. John B. Daniel Co., 35 Ga. App. 511, 513-514 (133 SE 878) (1926); Pottinger v. Cross, 170 Ga. App. 647, 649-650 (317 SE2d 850) (1984); Tri-State Systems v. Village Outlet Stores, 135 Ga. App. 81, 85 (217 SE2d 399) (1975). Damages may be apportioned according to degree of responsibility when there is a reasonable basis to support the trier of fact’s determination that the portion of the damages awarded against the defendant was caused by the defendant’s breach of contract. Rome Housing Auth. v. Allied Bldg. Materials, 182 Ga. App. 233, 239 (355 SE2d 747) (1987).


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A94A0313.
    MARKET PLACE SHOPPING CENTER v. BASIC BUSINESS ALTERNATIVES, INC.
    (445 SE2d 824)
   Judge Harold R. Banke.

The appellee, Basic Business Alternatives, Inc., d/b/a New Garden Bake Shop and Deli, filed suit against the appellant shopping center seeking damages for breach of a lease covenant, and a declaration that the appellee had no further obligations under the lease. The appellant filed a counterclaim for dispossessory and rents. Following a bench trial, judgment was entered in favor of the appellee on its breach of contract claim and for the appellant for rents due prior to April 1992. This appeal followed.

In September 1991 the appellee negotiated a lease to operate a bakery and deli in the appellant shopping center. The appellant agreed not to rent space to another bakery or deli without the appellee’s permission, adding the handwritten proviso, “with the exclusion of what currently exists.” However, in November 1991, the same month in which the appellee opened for business, the appellant also secured as a tenant another restaurant, Gorin’s Gyro Wrap, whose menu included specialty deli sandwiches. From the time Gorin’s opened in March 1992, the appellee’s sales declined sharply until it closed in June 1992.

1. The appellant contends that the trial court erred in finding Gorin’s Gyro Wrap to be a “deli” within the meaning of the lease covenant, because the term “deli” is ambiguous and such ambiguity should be construed against the appellee who drafted the covenant. We disagree.

In construing contracts, “we must give words their usual and common signification. OCGA § 13-2-2.” Holyoke Mut. Ins. Co. v. Cherokee Ins. Co., 192 Ga. App. 757, 759 (386 SE2d 524) (1989). Dictionaries may supply the plain and ordinary sense of a word, Southern Guaranty Ins. Co. v. Duncan, 131 Ga. App. 761 (206 SE2d 672) (1974), and the trial court consulted one in defining delicatessen as “a store where ready-to-eat food products are sold either to be taken out or eaten on the premises, as in sandwiches.” The evidence showed that Gorin’s Gyro Wrap fit that definition, and the trial court did not err in finding that establishment to be a “deli.”

Decided June 29, 1994.

Frankel, Hardwick, Tanenbaum & Fink, Joel S. Arogeti, Susan L. Shaver, for appellant.

2. The appellant next contends the trial court erred in finding that the appellant’s breach excused the appellee’s duty to pay rent after March 1992. However, “[i]f the nonperformance of a party to a contract is caused by the conduct of the opposite party, such conduct shall excuse the other party from performance.” OCGA § 13-4-23. Although the appellee suffered some temporary business setbacks due to construction delays, the evidence showed that the only real difference in the appellee’s situation after March 1992 was the competition presented by Gorin’s Gyro Wrap. The appellee thus established a connection between the appellant’s breach and the appellee’s business loss and resultant inability to pay rent. Compare Ott v. Vineville Market, Ltd., 203 Ga. App. 80 (416 SE2d 362) (1992).

3. Finally, the appellant contends the trial court applied an incorrect measure of damages for the breach of the lease covenant. “The measure of damages recoverable for a lessor’s breach of covenant not to rent other stipulated premises for a competing business is the difference in value between the plaintiffs’ leasehold with the covenant against competition unbroken and the same leasehold with the covenant broken. The value of said leasehold is not controlled by the stipulated rental therefor, nor the profits which the tenant could have realized from the operation of his business without the adjacent competing business.” Carusos v. Briarcliff, Inc., 76 Ga. App. 346, 351 (2) (45 SE2d 802) (1947).

In the instant case, the appellee presented evidence only of its costs to build out, equip and obtain supplies for use of the leased premises as a bakery and deli, and was awarded over $68,000 for that claim. However, that evidence incorrectly equated the loss of investment with the diminution of the value of the leasehold as the measure of damages. As the appellee failed to prove the diminution of the leasehold’s value, the trial court erred in awarding damages for such. See David Enterprises v. Kingston Atlanta Partners, 211 Ga. App. 108, 110-111 (2) (438 SE2d 90) (1993).

Judgment affirmed in part, reversed in part.

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

Sylvia K. Morrow, for appellee.


author: Smith, Judge.

text:
    A94A0259.
    NATIONAL TREASURY EMPLOYEES UNION v. MACON-BIBB COUNTY HOSPITAL AUTHORITY.
    (445 SE2d 777)
   Smith, Judge.

Appellee Macon-Bibb County Hospital Authority brought an action against the National Treasury Employees Union (NTEU), seeking payment of medicál costs pursuant to a health insurance plan provided to a federal employee under the Federal Employees Health Benefits Act (FEHBA), 5 USC § 8901 et seq. The trial court denied NTEU’s motion for summary judgment on the basis of federal preemption of the hospital’s state law claims. We granted NTEU’s application for discretionary appeal to consider an issue of first impression in Georgia: the scope of preemption of state law by 5 USC § 8902 (m) (1). After reviewing the relevant statutes as well as federal and state decisions, we conclude that the state law claims made by the hospital in this action are preempted by FEHBA.

1. The relevant statutory language provides: “The provisions of any contract under this chapter which relate to the nature or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to health insurance or plans to the extent that such law or regulation is inconsistent with such contractual provisions.” 5 USC § 8902 (m) (1). The federal Court of Appeals for the Eleventh Circuit has held, and the parties here agree, that cases addressing preemption under the Employee Retirement Income Security Act (ERISA), 29 USC § 1144 (a), are highly instructive in interpreting the similar preemption provisions of FEHBA. Blue Cross &c. v. Dept. of Banking &c., 791 F2d 1501, 1504 (11th Cir. 1986).

The recent decision of the United States Supreme Court in Ingersoll-Rand Co. v. McClendon, 498 U. S. 133 (111 SC 478, 112 LE2d 474) (1990), significantly clarifies and expands the scope of preemption under ERISA, and hence for our purposes the scope of FEHBA. McClendon establishes a broad test for the “relates to” language included in both ERISA and FEHBA: where a cause of action makes specific reference to and is premised on the existence of a plan, and the court’s inquiry must be directed to the plan, a judicially created cause of action “relates to” ERISA. 498 U. S. at 140. In support of this analysis, McClendon also discusses the congressional purpose of establishing national uniformity in administering benefits, and it notes the administrative burdens and disruption that would result from state courts’ development of different substantive standards applicable to the same conduct. 498 U. S. at 142.

The Eleventh Circuit, relying on McClendon, recently held that ERISA preempted a fraudulent misrepresentation claim under Georgia law. In Sanson v. Gen. Motors Corp., 966 F2d 618, 621 (11th Cir. 1992), cert. denied, _ U. S__(113 SC 1578, 123 LE2d 146) (1993), the covered employee contended that his employer fraudulently misrepresented the benefits that would be available to him under a special retirement program. The Eleventh Circuit relied on the McClendon test and found that the existence of the plan was “a critical factor” in the cause of action, and that the state law claim was therefore preempted by ERISA. 966 F2d at 620-621.

The hospital’s claim here arose out of a dispute regarding coverage under NTEU’s health insurance plan for an infant born at the hospital. The mother of the infant was transferred from another hospital with a high-risk pregnancy and was admitted for observation eight days before the birth. The infant was born prematurely with medical problems requiring extraordinary care.

The hospital asserts that NTEU fraudulently misrepresented the scope of coverage provided for the infant. The hospital contends, and NTEU denies, that an NTEU employee assured a hospital employee in a telephone conversation after the mother’s admission that the infant would be covered. It is undisputed that NTEU actually provided the infant’s mother with “self-only” coverage, which covered routine newborn care but not care for sick or premature infants. Before the mother’s admission, the hospital had distributed a memo to its personnel, including the person who made the telephone call, noting that “self-only” coverage would not cover a newborn, and should be converted to family or dependent coverage. Under FEHBA, there is an option to convert “self-only” coverage within 60 days to include newborns retroactive to the date of birth. 5 CFR § 890.301 (e) (1). This option was not exercised by the hospital or the insured.

It is apparent from these underlying facts that the dispute between the hospital and NTEU “relate[s] to the nature or extent of coverage or benefits.” In essence, the hospital is seeking to modify under Georgia law the provisions of the plan on the basis of oral representations made to its employee. This is in direct conflict with the language of 5 USC § 8902 (m) (1) providing that “[t]he provisions of any contract under this chapter . . . shall supersede and preempt any State or local law. ...”

As in McClendon, supra, the existence of the plan forms the basis for the state law claim asserted, and no cause of action would exist in the absence of the plan. The facts underlying the hospital’s claim and the defenses asserted by NTEU revolve entirely around the administration of the benefit plan, claims procedures, and coverage for an insured under the plan. Moreover, the hospital is seeking in damages exactly $24,437.58, the cost of the services the hospital contends should have been covered under the plan. “In this case, the misrepresentation relates to [the insurance] benefits available under [NTEU’s] plan. The measure of damages would be the amount of benefits [the hospital] would have received under the . . . plan. Such a determination of damages demonstrates the relationship between the lawsuit and the . . . plan.” 966 F2d at 621.

The hospital contends that, as a health care provider rather than an insured employee, it is not a party to the insurance plan and thus is outside the scope of FEHBA. It contends that as a “third party tort claimant” its contact with FEHBA is “tenuous” or “peripheral.” However, the hospital is not merely a third-party tort claimant and stranger to the plan. It secured from the insured not only an assignment of benefits but a power of attorney authorizing it to act as the insured’s agent in making claims. The hospital relies on this assignment for its authority to seek payment under the plan. See Santiago v. Safeway Ins. Co., 196 Ga. App. 480 (1) (396 SE2d 506) (1990). It is a well-established principle of Georgia law that an assignee of a contract “stands in the shoes” of the assignor, has no more rights under the contract than the assignor, and is subject to all defenses which could have been raised against the assignor. Pridgen v. Auto-Owners Ins. Co., 204 Ga. App. 322, 323 (419 SE2d 99) (1992). Moreover, 5 USC § 8902 (m) (1) itself makes no distinction as to the identity of the parties, so long as the “provisions of any contract under this chapter” are involved.

In asserting that a health care provider’s claim should not be preempted, the hospital relies primarily upon a decision from another federal circuit, Mem. Hosp. System v. Northbrook Life Ins. Co., 904 F2d 236 (5th Cir. 1990). However, Mem. Hosp. was decided before and without benefit of the United States Supreme Court’s ruling in McClendon, supra, which clarifies the broad and inclusive scope of congressional preemption and its stated goal of uniformity in federal employees’ health benefits plans. Exempting health care providers from the scope of FEHBA would undermine this goal by allowing the application of FEHBA, and therefore preemption, to turn entirely upon a health care provider’s decision to obtain an assignment of benefits. The trial court erred in holding that the hospital’s action was not preempted by the provisions of FEHBA.

Decided June 14, 1994

Reconsideration denied June 30, 1994

Marcia E. Fishman, Mark J. Sanger, for appellant.

Sell & Melton, John A. Draughon, for appellee.

2. Because we have determined that the hospital’s action is preempted by 5 USC § 8902 (m) (1), we do not reach NTEU’s, contention that the hospital failed to exhaust its administrative remedies.

Judgment reversed.

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

       Though we are not bound by this decision, Porter v. Food Giant, 198 Ga. App. 736, 738, n. 1 (402 SE2d 766), cert. denied,_U. S__(112 SC 582, 116 LE2d 607) (1991), we are persuaded by its reasoning.

       In light of the decisions in McClendon and Sanson, the holding in Mem. Hosp. has been criticized. See Nat. Alcoholism Programs v. Palm Springs Hosp. Employee Benefit Plan, 825 FSupp. 299 (S.D. Fla. 1993).


author: McMurray, Presiding Judge.

text:
    A94A0044.
    SAWYER et al. v. REHEIS et al.
    (445 SE2d 837)
   McMurray, Presiding Judge.

Harold F. Reheis, Director of the Environmental Protection Division of the Georgia Department of Natural Resources, issued a permit for Early County and the City of Blakely, Georgia, to operate a municipal solid waste landfill. Fred Sawyer, Eric Járrett, Mack Jarrett, and Richard Coates (“the citizens”), filed a petition pursuant to OCGA § 12-2-2 (c) (2) for administrative review of that decision, alleging that the landfill authorized by the Director’s permit was too close to a nearby airport, contrary to criteria established by Rule 391-3-4-.05 (1) (c) (1) of the Rules and Regulations of the State of Georgia (“Rule 5”). Specifically, the citizens point out that Rule 5 provides that “[t]he following criteria must be met for a site proposed as a solid waste handling facility: . . .New [municipal solid waste landfill] units or lateral expansions of existing units shall not be located within 10,000 feet (3,048 meters) of any public-use or private-use airport runway end used by turbojet aircraft or within 5,000 feet (1,524 meters) of any public-use or private-use airport runway end used by only piston-type aircraft.” Further, they also show that Rule 5 (1) (c) (2) requires owners and operators of existing landfill units to “demonstrate that the units are designed and operated so that the [landfill] units do not pose a bird hazard to aircraft” and that, for purposes of Airport Safety within the meaning of Rule 5 (1) (c), the term “ ‘Bird hazard’ means an increase in the likelihood of bird/aircraft collisions that may cause damage to the aircraft or injury to its occupants.” Rule 5 (1) (c) (5) (iii).

At the evidentiary hearing before an administrative law judge (ALJ), the following undisputed material facts were adduced: Coates owns a small airfield approximately 7,800 feet from the site of the proposed landfill, from which he operates a crop-dusting business. Coates is not rated by the Federal Aviation Administration to fly a jet. As manufactured, the plane Coates flies was a piston-driven propeller plane. Coates modified it so that now it is a turbine-driven propeller plane, i.e., a turboprop as opposed to a turbojet.

The opinions of aviation engineers differed as to whether the features of a turboprop engine made it more like a “turbojet” or a “piston-type” aircraft. The ALJ found persuasive the distinctions made by Professor John J. Harper, Professor Emeritus of Aerospace Engineering at the Georgia Institute of Technology. Professor Harper deposed that “for the purpose of bird strike protection, the engine design of a turboprop has far more in common with a turbojet than it does with a piston-type propeller driven aircraft.” In Professor Harper’s opinion, the “engine design on inlet air is the decisive variable which establishes the relative susceptibility of that type of aircraft to catastrophic failure resulting from bird strikes.” He concluded that “the large air intake demands of a turboprop are equivalent to the air intake requirements of turbojet and turbofan engines, [and] for the purpose of bird strike protection, the engine design of a turboprop requires the same degree of protection to guard against the interruption of combustion air as is required by the turbojet and other turbine-powered aircraft.” The ALJ determined that Coates’ turboprop plane subjected the proposed landfill to the more stringent 10,000-foot separation distance required for landfill sites near an airport runway used by turbojet aircraft. Consequently, the ALJ held that Director Reheis improperly issued this permit because the proposed site is too close to Coates’ runway.

The Director, Early County, and the City of Blakely, Georgia, appealed this administrative ruling to the superior court. The superior court reversed, ruling that the ALJ’s “conclusions of law are beyond his statutory authority; are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; and are arbitrary and capricious and characterized by an abuse of his discretion and an unwarranted exercise of his discretion.” The citizens’ application for discretionary appeal was granted and this appeal followed. Held:

1. In related enumerations, the citizens contend the superior court erred in reversing the determination of the ALJ, arguing that the court failed to apply the proper standard of review and substituted its own judgment for that of the ALJ.

Judicial review of an administrative decision “shall be conducted by the court without a jury and shall be confined to the record.” OCGA § 50-13-19 (g). “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” OCGA § 50-13-19 (h). However, the superior “court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . [i]n violation of constitutional or statutory provisions; . . . [i]n excess of the statutory authority of the agency; . . . [c]learly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or . . . [arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” OCGA § 50-13-19 (h). The “clearly erroneous” standard of review to be applied by the superior court “prevents a de novo determination of evidentiary questions leaving only a determination of whether the facts found by the [ALJ] are supported by ‘any evidence.’ ” Hall v. Ault, 240 Ga. 585, 586 (242 SE2d 101). Upon further discretionary appeal to this Court, “our duty is not to review whether the record supports the superior court’s decision but whether the record supports the [final] decision of the local governing body or administrative agency. [Cits.]” Emory Univ. v. Levitas, 260 Ga. 894, 896 (1), 898 (401 SE2d 691).

In the case sub judice, the opinions of aviation and aerospace engineers were in conflict as to whether a turboprop plane such as Mr. Coates’ should be classified as a piston-type plane or as a turbojet under Rule 5. The ALJ found the expert opinion testimony and analysis of Professor Harper to be persuasive. “The presence of conflicting evidence, including dueling experts, is sufficient to satisfy the any evidence standard. Georgia Real Estate Comm. v. Syfan, 192 Ga. App. 3, 4 (1) (383 SE2d 605) (1989).” Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572, 579 (5), 580 (396 SE2d 562). Consequently, the superior court erred in the case sub judice in concluding that the determination of the ALJ was “[c]learly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” OCGA § 50-13-19 (h) (5).

2. The citizens next contend that the superior court erred in holding that the ALJ’s construction and application of Rule 5 (1) (c) was arbitrary and capricious.

“The [superior] court must affirm the [final administrative] decision unless the [administrative factfinder] acted arbitrarily, capriciously, and unreasonably.” Carnes v. Charlock Investments (USA), 258 Ga. 771, 772 (1), n. 1, 773 (373 SE2d 742). “If arbitrary and capricious action is alleged the [superior] court must determine whether a rational basis exists for the decision made. [This] is a question of law. Georgia Public Svc. Comm. [v. Southern Bell, 254 Ga. 244, 246 (327 SE2d 726)]; Carnes [v. Charlock Investments (USA), 258 Ga. 771, 772 (1) n. 1, 773], supra.” Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572, 579 (5), 581, supra. “[I]n construing administrative rules, ‘the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the (rule).’ ” Atlanta Journal &c. v. Babush, 257 Ga. 790, 791 (2), 792 (364 SE2d 560).

The ALJ interpreted Rule 5 (1) (c) to apply to all aircraft, for purposes of determining which minimum distance must be maintained between an existing airport runway and a proposed landfill. However, the superior court concluded that this “decision is erroneously based upon the proposition that the. engine itself is to provide the criteria for determining which separation rule is applicable. Forcing the term ‘engine’ into Rule 5’s classification ‘turbojet aircraft’ exceeds the [ALJ’s] statutory authority.”

Rule 5 broadly distinguishes between “turbojet” aircraft and “piston-type” aircraft. The ALJ applied the technological distinctions recognized by the aeronautical engineering expert, Professor Harper, to the two choices offered by Rule 5 (1) (c) and concluded that, for purposes of distance separation, a turboprop was more akin to a “turbojet” than it was to a “piston-type” aircraft. “That is appropriate. Greyhound Lines v. Ga. Public Svc. Comm., 236 Ga. 76, 77 [(222 SE2d 347)]. The opinions of competent experts may constitute such a rational basis. Turnbull, Inc. v. United States, 389 F2d 1007, 1014 (4 & 5) (Ct. Cl. 1967).” Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572, 579 (5), 580, supra. By way of contrast to the “rational basis” standard of review, the term “ ‘arbitrary,’ as defined in the Standard Dictionary, means, ‘fixed or done capriciously or at pleasure; without adequate determining principle; not founded in the nature of things; non-rational; not done or acting according to reason or judgment; depending on the will alone; absolutely in power; capriciously; tyrannical; despotic.’ ” Central of Ga. R. Co. v. Mote, 131 Ga. 166, 176 (8), 178 (62 SE 164). In the case sub judice, the record demonstrates that the ALJ followed a reasonable thought process in his interpretation of the Rule’s technical terms; that he logically applied the goals of the Rule to the facts adduced on the record and that he was guided by expert opinion on the technical matters presented. Contrary to the superior court’s determination, this process of reasoning was not in excess of the statutory authority of the ALJ and so OCGA § 50-13-19 (h) (2) does not provide any basis for reversing the final administrative decision. Rather, this was an explanation of the rational basis underlying the ALJ’s ultimate determination that the more stringent 10,000-foot minimum separation distance applied to the airport runway used by Coates’ turboprop plane. The record demonstrates that the ALJ had a rational basis for his ultimate determination. Accordingly, the superior court was unauthorized to substitute its own judgment for that of the ALJ under the theory that this administrative determination is arbitrary and capricious within the meaning of OCGA § 50-13-19 (h) (6). Consequently, the superior court erred in failing to affirm the final order of the administrative agency. Carnes v. Charlock Investments (USA), 258 Ga. 771, 772 (1), n. 1, 773, supra.

Decided June 30, 1994.

Troutman Sanders, Norman L. Underwood, Howard L. Sharfstein, Hollister A. Hill, for appellants.

Michael J. Bowers, Attorney General, Robert S. Bomar, Senior Assistant Attorney General, Brenda H. Cole, Assistant Attorney General, William H. Mills, E. Tracy Moulton, Jr., for appellees.

Judgment reversed.

Pope, C. J., and Smith, J., concur.


text:
    A94A0431.
    HASTY v. THE STATE.
    (445 SE2d 836)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of simple battery, aggravated assault and uttering a terroristic threat. A judgment of conviction and sentence was entered on March 5, 1991, as to each charge. On May 12, 1993, defendant filed, pro se, a motion for out-of-time appeal, asserting he was neither advised of his right of appeal nor his right to post-judgment assistance from a court-appointed attorney. In opposition, the affidavit of defendant’s trial attorney was filed. It provides, in pertinent part, as follows: “Following the jury’s verdict and prior to, during and after the sentencing phase of the prosecution, the Defendant was fully advised of his legal right to pursue an appeal of the judgment of the Court in a timely fashion. As his attorney, I unequivocally state that he, the Defendant, was advised of his right. He never requested that I pursue this remedy.” No other evidentiary material appears in the record.

The trial court denied defendant’s motion for out-of-time appeal after “having reviewed all the evidence in the record [and adopting defendant’s trial counsel’s] averments as its findings of fact.” This appeal followed. Held:

Defendant contends the trial court erred in denying his motion for out-of-time appeal, arguing he was neither advised of his right of appeal nor the right to post-judgment assistance from a court-appointed attorney.

“Our courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and have permitted out of time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights. Bell v. Hopper, 237 Ga. 810 (229 SE2d 658) (1976); Cannon v. State, 175 Ga. App. 741 (334 SE2d 342) (1985). An out of time appeal, however, is not authorized if the delay was attributable to the appellant’s conduct, either alone or in concert with counsel. Henry v. Hopper, 235 Ga. 196, 197-198 (219 SE2d 119) (1975); Cannon, supra at 742.” Evans v. State, 198 Ga. App. 537, 538 (402 SE2d 131).

Decided June 30, 1994.

William F. Hasty, pro se.

Britt R. Priddy, District Attorney, Johnnie M. Graham, Assistant District Attorney, for appellee.

In the case sub judice, there is no evidence indicating that failure to file a timely appeal rested with defendant after a knowing and voluntary waiver of his rights of appeal. No hearing was held on defendant’s motion for out-of-time appeal and it cannot be determined from the only available evidence (i.e., the affidavit of defendant’s trial attorney) whether defendant was advised of the right to be represented by an attorney on appeal. Ascertaining the answer to this question is complicated by evidence of the dismissal of defendant’s sentence review petition because the petition was not filed within the 30-day filing period prescribed in OCGA § 17-10-6 (a). Accordingly, the trial court’s order denying defendant’s motion for outTof-time appeal is vacated and the case sub judice is remanded with direction that a hearing be conducted on defendant’s motion for out-of-time appeal. The controlling issues at this hearing will be whether defendant “was denied his right of appeal through counsel’s negligence or ignorance, or [whether defendant] was [fully and fairly] informed of his appeal rights. Bell v. Hopper, 237 Ga. 810 (229 SE2d 658) (1976); Cannon v. State, 175 Ga. App. 741 (334 SE2d 342) (1985). An out of time appeal [will not be] authorized if the delay was attributable to the [defendant’s] conduct, either alone or in concert with counsel. Henry v. Hopper, 235 Ga. 196, 197-198 (219 SE2d 119) (1975); Cannon, supra at 742.” Evans v. State, 198 Ga. App. 537, 538, supra.

Judgment vacated and case remanded with direction.

Pope, C. J., and Smith, J., concur.


author: Birdsong, Presiding Judge.

text:
    A94A0656.
    In the Interest of W. W. W. et al., children.
    (445 SE2d 832)
   Birdsong, Presiding Judge.

We granted a discretionary appeal of the juvenile court’s award of two of the parties’ children to appellee father.

The parties divorced in 1985. Appellant mother retained custody of their three children. In 1988, appellee filed a petition for change of custody and the superior court held “the clear and convincing evidence fails to show child abuse by [the mother] or any material change of conditions caused by her. . . . The clear and convincing evidence [shows] that the . . . father of the children has abused [them] by discriminatory treatment and [rejection of his youngest child which] commenced with denial of paternity [and] has affected the attitude and behavior of his extended family including his mother and his present wife. . . . The abuse will be increasingly damaging to the children. . . . [The father] shall have visitation privileges . . . only on the condition that he treat all of the children on an accepting basis.”

In 1992, the mother sued appellee for modification of child support. While that suit was pending appellee filed this deprived child petition in juvenile court, alleging physical abuse of the elder son. Appellant filed a counter-petition alleging deprivation of all children. The juvenile court found no physical abuse by the mother but found all children were emotionally abused by both parents. On a trial basis it gave custody of the two older children to appellee and ordered the youngest child to have no contact with him until the child completed therapy. After several months with the older children in the father’s custody, the juvenile court re-heard the matter and found: “It was shown by clear and convincing evidence that the . . . children continue in a state of deprivation ... [as they] are without proper parental care or control necessary for their mental or emotional health. . . . There has been minimal improvement in the mental and emotional health of the [two older] children.” The court ordered that those children remain in the father’s custody while the youngest boy remains with appellant. Held:

1. The judgment is void because the juvenile court did not have jurisdiction of the subject matter. The father alleged deprivation by the mother after she sued for change in support. The entire record, including the court’s disposition, shows that this is a custody dispute.

Where custody is the subject of controversy, the juvenile court has concurrent jurisdiction to hear and determine custody issues only when the case is transferred by the superior court. OCGA § 15-11-5 (c); Lockhart v. Stancil, 258 Ga. 634, 635, fn. 1 (373 SE2d 355); Moss v. Moss, 233 Ga. 688, 690 (212 SE2d 853); In re J. R. T., 233 Ga. 204 (210 SE2d 684); Colton v. Martins, 230 Ga. 482 (197 SE2d 729); see In the Interest of C. F., 199 Ga. App. 858 (406 SE2d 279); Neal v. Washington, 158 Ga. App. 39 (279 SE2d 294); see Conroy v. Jones, 238 Ga. 321 (232 SE2d 917); In the Interest of M. M. A., 174 Ga. App. 898 (332 SE2d 39).

Appellee contends that because he filed a deprivation petition, the juvenile court had exclusive jurisdiction regardless whether a parental custody dispute is involved, for this action determines whether the child is deprived “and is not an action brought to decide custody matters.” In the Interest of A. L. L., 211 Ga. App. 767 (440 SE2d 517). However, this statement, quoted from Anderson v. Sanford, 198 Ga. App. 410, 411 (401 SE2d 604), merely held that a deprivation proceeding is not a “custody action” within the meaning of OCGA §19-7-3 (c). In the Interest of A. L. L. does not hold that the juvenile court has exclusive jurisdiction of cases which are not valid deprivation cases but are actually custody disputes. Pleadings are only a means to reach the merits of a case; we construe pleadings to do substantial justice and in determining the nature of a proceeding, its substance, not its name, controls. Franklyn Gesner &c. v. Ketcham, 252 Ga. 537, 539 (314 SE2d 903).

In Lewis v. Winzenreid, 263 Ga. 459 (435 SE2d 602) the mother filed a deprivation petition rather than return the child to the father’s legal custody. The superior court issued a writ of habeas corpus. The Supreme Court affirmed the writ and held the juvenile court had no jurisdiction. The fact that the dispute in Lewis was between resident and non-resident parents does not change the basis of that decision. The Supreme Court held, “custody disputes between parents are not within the exclusive original jurisdiction of the juvenile courts of this state”; the juvenile court has exclusive jurisdiction to entertain petitions concerning children alleged to be deprived, but not where the record shows the petition was not in the nature of a valid deprivation petition; juvenile courts should not entertain deprivation proceedings brought by one parent to obtain custody from the other parent for there is a great likelihood in such cases that allegations of deprivation will be motivated by a desire to avoid the more stringent standard of proof applicable in a custody modification action in superior court, where the noncustodial parent must prove a material change in circumstances substantially affecting the interest and welfare of the child. Id. at 462-463.

The fact that Lewis quoted so liberally and interchangeably from cases with very different facts merely proves the common premise. Lewis concluded the juvenile court “should not entertain” a deprivation petition filed by one parent against another. Id. at 462. Lewis means that when the dispute is between parents, it is prima facie a custody matter. The superior court may determine the proceeding is a “valid deprivation petition” (Lewis, supra), and it can transfer the case to juvenile court as any court would do on finding it does not have jurisdiction.

Appellee filed this deprivation petition only after the custodial parent filed a petition for support modification. He alleged physical abuse against one child only (see In re R. R. M. R., 169 Ga. App. 373 (312 SE2d 832)), a charge for which the juvenile court found no substantiation. Appellee could not, merely by filing a “deprived child” petition, thwart the prior custody order of superior court and remove its exclusive jurisdiction of custody issues. The bare allegation of physical abuse did not make this a valid deprivation case giving juvenile court exclusive jurisdiction. The record, including the 1988 custody order, proves there was never any bona fide controversy as to what kind of case this is, and the fact that the juvenile court was persuaded to entertain it does not add bona fides to it.

2. Appellant did not submit to juvenile court jurisdiction by filing a counter-petition. Subject matter jurisdiction cannot be waived, nor can one voluntarily submit herself to subject matter jurisdiction of an improper court. In the Interest of C. F., supra.

3. Even if the juvenile court had jurisdiction, the award is without evidence and is so contrary to the evidence as to be an abuse of discretion.

Appellant was pregnant with the parties’ third child when she discovered appellee was having an affair. Scientific tests prove he is the father of the child, but he denied paternity apparently because he had told his girl friend he was not having sexual relations with his wife. Court-ordered psychological evaluations show the middle child, a girl, is fairly well adjusted. The youngest child, age eight, has a serious behavior disorder caused by his parents’ conflict; he has a close bond with his siblings and wants to live with them. The elder boy, age 12, was described as sad-looking with a “pronounced facial tic”; he expressed “a strong preference to be reunited with his [younger] brother. . . . This was the strongest emotion [he] expressed.”

Dr. Schenk advised the court that the mother’s efforts to compel appellee to accept his younger son amounted to emotional abuse; he did not like the “status quo.” However, Dr. Cruz testified the family’s problem was that the youngest boy was “rejected because of his father’s inability to face the truth” and “[t]here is no point” in changing custody.

Dr. Hill, the children’s therapist, testified that the youngest child has serious problems because he is rejected by his father and his stepmother; the older boy sees his father as duplicitous, like a person who lies to you on the one hand and is a fairy tale father who gives you a lot of things on the other hand; he was concerned that his father did not let him have a normal relationship with his brother; his father told him his mother had put his sister’s feet and hands on a burner and he was confused because he had seen no scars on her hands or feet; his father showed him pictures of a naked little girl from the waist down supposedly of his younger sister. “That to me is a form of child abuse,” Dr. Hill testified. The father’s denial of paternity is “pathological”; until this relationship between father and children is based on truth there is no relationship; the elder boy cried and said, “Help me. . . . Doctor Schenk told me I would have to go live with my father and I don’t want to. ... I thought if I said I wanted to that [my stepmother] wouldn’t treat me like she treats [my brother]”; he was afraid if he told the truth “they would all hate me like they hate [my brother].” Dr. Hill said the mother’s only fault was that her fear of being accused of child abuse caused her to be lax in discipline and she ended up yelling at the children.

Decided June 30, 1994.

L. Lynn Hanna, MaryTheresa Clark, for appellant.

Michael J. Bowers, Attorney General, Teresa E. Lazzaroni, Assistant District Attorney, Jim W. Blount, Rubin, Winter & Rapoport, Joseph M. Winter, for appellee.

The juvenile court found the appellee “wilfully violated” the superior court’s previous order that he treat the children equally. Confounded by the father’s refusal to cease the abusive conduct, and despite all the evidence that the children’s unity was their mainstay, the juvenile court separated them. Months later the court found the two older children were deprived in appellee’s care, but gave him permanent custody of them, finding that the mother’s anger “impairs her ability to properly provide the emotional stability needed [by] the children.” (Emphasis supplied.) However, according to all the evidence, the deprivation of emotional stability was caused by the father. There is no evidence that it is appellant mother who causes her children to be “without proper parental care or control. . . necessary for [their] physical, mental, or emotional health.” OCGA § 15-11-2 (8). The juvenile court erred in finding that the mother deprived two children so as to justify removing custody of two children from her and modify the superior court’s 1988 order. The order is vacated.

Judgment vacated.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


author: Johnson, Judge.

text:
    A94A1159.
    MADAN v. DAMIANO.
    (445 SE2d 831)
   Johnson, Judge.

Vito Damiano filed a complaint against Gobind Madan alleging breach of a lease agreement for failure to maintain and repair the premises. Madan filed a counterclaim alleging that Damiano entered into a prior settlement agreement between the parties in bad faith, that Damiano breached that agreement in various ways, that Damiano has caused Madan unnecessary trouble and expense, that Damiano has interfered with Madan’s contractual and business relations and that Damiano has defrauded Madan. Upon Damiano’s motion, the trial court ordered Madan to plead his counterclaim for fraud with more particularity. Thereafter, the court granted Damiano’s motion to dismiss the fraud portion of the counterclaim because Madan failed to comply with the order that he plead that claim with more particularity. Approximately six months later, the court granted summary judgment to Damiano on his main claim for breach of the lease agreement in the amount of $1,923, plus an unstated amount of interest and attorney fees. Madan filed this direct appeal.

We do not have jurisdiction over this appeal. The trial court’s grant of summary judgment to Damiano for a sum less than $10,000 does not provide a basis for Madan’s direct appeal. “[A]ppeals in all actions for damages in which the judgment is $10,000.00 or less shall be by application as set forth in OCGA § 5-6-35 (b). Although the grant of a motion for summary judgment is in general directly appeal-able, where the amount of the judgment is $10,000 or less, an application for discretionary appeal is required.” (Citations and punctuation omitted.) Ca-Shar v. McKesson Corp., 204 Ga. App. 865 (420 SE2d 810) (1992).

The trial court’s dismissal of the fraud portion of Madan’s counterclaim also does not support this appeal. A direct appeal is appropriate when the appellee has obtained a judgment for $10,000 or less and has also prevailed on a counterclaim filed by the appellant. Honester v. Tinsley, 183 Ga. App. 146, 147 (1) (358 SE2d 295) (1987). Damiano, however, has not yet prevailed on the entire counterclaim filed by Madan. The trial court dismissed only the fraud portion of the counterclaim, but has made no decision on the remaining counts in the counterclaim. In “a case involving multiple claims, a decision adjudicating fewer than all the claims is not a final judgment. In such circumstances, there must be an express determination [that there is no just reason for delay and express direction for the entry of judgment] under OCGA § 9-11-54 (b) or there must be compliance with the [certificate of immediate review] requirements of OCGA § 5-6-34 (b). Where neither of these code sections is followed, the appeal is premature and must be dismissed.” (Citations and punctuation omitted.) Whiddon v. Stargell, 192 Ga. App. 826, 827 (386 SE2d 884) (1989). The orders appealed from in the instant case do not constitute a final judgment because they adjudicate fewer than all the claims and there has been no compliance with either OCGA § 5-6-34 (b) or § 9-11-54 (b). Huff v. Rogers, 129 Ga. App. 897, 898 (202 SE2d 243) (1973); Conte Enterprises v. Romax Constr. Co., 128 Ga. App. 121 (195 SE2d 798) (1973). Because several of the counts in Madan’s counterclaim are still pending in the trial court, his direct appeal is premature and must be dismissed. Union Indem. Ins. Co. of N. Y. v. Cherokee Ins. Co., 168 Ga. App. 82 (308 SE2d 238) (1983); Givens v. Gray, 124 Ga. App. 152 (183 SE2d 29) (1971).

Decided June 30, 1994.

Robert W. Raleigh, for appellant.

Barbara M. Stalzer, for appellee.

Appeal dismissed.

Beasley, P. J., and Andrews, J., concur.


text:
    A94A1242.
    McKINLEY v. THE STATE.
    (445 SE2d 828)
   Johnson, Judge.

Derek McKinley appeals from his conviction of possession of cocaine with intent to distribute. McKinley contends that the trial court erred in denying his motion to suppress evidence of the cocaine because the police seized it after unlawfully stopping him without reasonable suspicion.

Police investigators Joseph Autrey and Billy Sullivan, who found the cocaine, testified at the motion to suppress hearing that they received an anonymous telephone tip that four black males in a white Chevrolet Lumina van with Hillsborough County, Florida, license plates were attempting to sell cocaine on Butler Street in Camilla, Georgia. The investigators drove to the Butler Street area in separate vehicles. Autrey saw the described van, which was occupied by two men, and radioed Sullivan. Autrey, who was in an unmarked police car, followed the van as it drove into a convenience store parking lot. The driver, Adrian Haywood, parked the van at the front of the store. As both Haywood and McKinley, the passenger, began to get out of the vehicle, Autrey parked his car beside the van and activated the blue lights on the dashboard. Autrey approached Haywood, showed him his badge and asked to see a driver’s license and proof of insurance. Autrey told McKinley to get back in the van and close the door. Haywood produced his license and a rental agreement for the van, which did not list him either as the renter or as an additional driver. Sullivan arrived at the store as Autrey was holding the driver’s license and rental agreement. Sullivan took the rental agreement and told McKinley to get out of the van. While Sullivan spoke with McKinley, Autrey asked Haywood if there were guns or drugs in the van. Haywood said there were no guns or drugs in the van and, upon Autrey’s request, consented to a search of the van. The officers then searched the van and found cocaine in it.

The state claims that the officers’ encounter with McKinley and Haywood was not a seizure, but was merely a police-citizen communication without coercion or detention that did not need to be supported by reasonable suspicion. See State v. Jackson, 201 Ga. App. 810, 813 (2) (412 SE2d 593) (1991). “A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. ... In order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer’s requests or otherwise terminate the encounter.” (Citations and punctuation omitted.) Rogers v. State, 206 Ga. App. 654, 657 (2) (426 SE2d 209) (1992). Here, a reasonable person in the position of McKinley and Haywood would have believed that he was not free to leave. Officer Autrey stopped his car next to the van, activated the car’s blue lights and displayed his police identification to Haywood as he told McKinley to get back in the van and close the door. Autrey retained Haywood’s driver’s license and the van rental agreement. Autrey then went beyond merely conducting a routine traffic stop by questioning Haywood about the presence of drugs and weapons in the van as Officer Sullivan questioned McKinley. See Rogers, supra. Moreover, Autrey himself testified that when he told McKinley to get back in the van, McKinley was not free to leave. Under these circumstances, the officers’ conduct communicated to McKinley and Haywood that they were not free to decline the officers’ requests or terminate the encounter. Because McKinley was not free to leave, he was seized and that seizure must be supported by reasonable suspicion. State v. Jackson, supra.

The facts of the instant case are indistinguishable from those in Moreland v. State, 204 Ga. App. 218 (418 SE2d 788) (1992), and Johnson v. State, 197 Ga. App. 538 (398 SE2d 826) (1990). In Moreland, we held that an anonymous telephone tip that two black men in a dark red Camaro were selling drugs in the Eastgate-Fairmount area of Newnan did not provide reasonable suspicion for a stop of the car. In Johnson, we held that an anonymous tip that two black men in a black truck were selling drugs on Lewis Street would not warrant a man of reasonable caution in the belief that a stop was appropriate. Likewise, the anonymous tip in this case, without more, did not warrant the stop of McKinley and Haywood. Compare State v. Ball, 207 Ga. App. 729 (429 SE2d 258) (1993). “[F]or an anonymous telephone tip to provide a basis for articulable suspicion for police to make an investigatory stop, the tip must provide some basis for predicting the future behavior of the subject of suspicion.” (Citations and punctuation omitted.) Moreland, supra at 219. As in Moreland and Johnson, the anonymous tip in the case at bar was general and completely lacking in detail; it made no prediction about future behavior by which its reliability could be tested. “The tip alone provided virtually nothing from which one might conclude that, the caller is either honest or his information reliable; likewise, the tip gave absolutely no indication of the basis for the caller’s predictions regarding the suspect’s criminal activities. Although the tip in the case sub judice certainly warranted police investigation, further observation and corroboration were required before a forcible stop was authorized.” (Citations and punctuation omitted.) Moreland, supra at 219. The stop of McKinley and Haywood was unauthorized and therefore the consent obtained for the search of the van was tainted and did not validate the search. Brown v. State, 188 Ga. App. 184, 187 (372 SE2d 514) (1988). Because the cocaine found in the van was the result of an illegal search, the trial court erred in denying McKinley’s motion to suppress.

Decided June 30, 1994.

Knight & Marlowe, Terry J. Marlowe, for appellant.

J. Brown Moseley, District Attorney, Ron S. Smith, Assistant District Attorney, for appellee.

Judgment reversed.

Beasley, P. J., and Andrews, J., concur.

       McKinley entered a conditional guilty plea to the charge, reserving the right to appeal from the trial court’s denial of his motion to suppress. Because McKinley filed this appeal prior to the effective date of our decision in Hooten v. State, 212 Ga. App. 770 (1) (442 SE2d 836) (1994), which overruled the practice of allowing appeals from conditional guilty pleas such as this, we shall consider the merits of the appeal.