author: Pope, Judge.

text:
    A90A1438.
    DOGGETT v. PATRICK.
    (398 SE2d 770)
   Pope, Judge.

Plaintiff James L. Doggett was an employee of Handy Food Center, Inc., a small chain of grocery stores, when he was severely injured in the course of his employment. The record shows plaintiff entered the meat cutting room of the store at which he was employed and when the door slammed shut the suspended ceiling fell, knocking plaintiff into a meat sheer. The blade slashed the left side of his throat almost from front to back, severing nerves, tissue and arteries. His life was apparently saved because a fellow employee pinched the main artery to stop the loss of blood until an ambulance arrived. Plaintiff received workers’ compensation benefits from his employer. He also brought this action against defendant E. M. Patrick under the theory of premises liability. Defendant owns the property on which the grocery store is located, had the building constructed and leased it to the corporation which is plaintiff’s employer. However, defendant is also the president of that corporation, though he owns no stock in it, and was granted summary judgment on the ground he is immune from liability pursuant to the exclusive remedy provision of the Workers’ Compensation Act. Plaintiff appeals.

The issue presented on appeal is whether defendant, who would be immune from suit for acts performed in his representative capacity as an executive officer of the corporation (see Stoker v. Wood, 161 Ga. App. 110 (289 SE2d 265) (1982)), is subject to liability pursuant to the “dual persona doctrine.” Pursuant to that doctrine, “ ‘(a)n employer may become a third person, vulnerable to tort suit by an employee, if — and only if — he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.’ Larson’s Workmen’s Compensation Law, § 72.81, Vol. 2A.” Porter v. Beloit Corp., 194 Ga. App. 591, 593 (391 SE2d 430) (1990). For the dual persona doctrine to apply, the duties imposed upon the second persona must be totally separate from those imposed by the employer-employee relationship. Larson’s Workmen’s Compensation Law, § 72.81 (c). The issue thus becomes whether defendant acted as a separate legal entity in constructing and maintaining the building or merely acted in his representative capacity as the alter ego of the corporation-employer.

Plaintiff’s complaint alleges his injuries were proximately caused by the negligent and defective construction of the building and negligent maintenance of the premises. The premises were not owned in this case by the corporation-employer but by defendant Patrick in his individual capacity. The record shows defendant had the building constructed and that he contracted with the individual tradesmen and contractors for the work necessary to complete the building instead of hiring a general contractor. The building at issue in this case and four other buildings owned by defendant are leased by him to the corporation-employer for use as grocery stores. Defendant receives monthly lease payments for the five buildings pursuant to written leases in addition to his salary and other compensation as president of the corporation. Thus, at least an issue of fact is presented concerning whether the duties imposed upon defendant as a landowner are separate from those imposed upon him as a representative of plaintiff’s employer.

In an earlier case this court held the president of the corporation which was plaintiff’s employer was entitled to immunity from suit pursuant to the workers’ compensation law. In Vaughn v. Jernigan, 144 Ga. App. 745 (242 SE2d 482) (1978), the plaintiff was injured by machinery operated by his employer on property owned by the defendant who was also the president, a director and a stockholder of the employer corporation. The complaint alleged the operation and maintenance of the machinery constituted a defective condition on the premises for which defendant was liable as owner. We held defendant was entitled to immunity from suit because his “knowledge of the allegedly defective condition, as well as his authority to correct it, came to him not through his ownership of the premises but through his active involvement in the management of the employer corporation as its chief executive officer. Whatever breach of duty he may have committed with respect to the operation of the [machinery], he committed solely through nonfeasance and while acting as ‘alter ego’ of the corporation, conclusions with which [plaintiffs] agree in their brief. Accordingly, he cannot properly be labeled a ‘third-party tortfeasor,’ and a recovery against him is precluded by [OCGA § 34-9-11].” Id. at 746. In Vaughn the employer installed the allegedly defective machinery after taking possession of the premises under a lease agreement with defendant. In the case at hand, the alleged negligence relates, inter alia, to the manner in which the building was constructed by defendant before he leased the building to the employer. Evidence in the record creates at least an issue of fact to be determined by a jury regarding whether defendant’s knowledge, if any, of the allegedly defective condition came to him through his ownership of the premises as opposed to his status as president of the company which leased the premises from him.

In granting summary judgment, the trial court relied upon our recent decision in Porter v. Beloit Corp., supra, in which we concluded a statutory employer had no separate legal persona simply because it was also the manufacturer of industrial machinery and therefore was immune from the employee’s product liability claim. The facts of this case, however, create at least an issue of fact concerning whether defendant, in his status as owner and landlord of the building in which plaintiff was injured, was a separate legal persona from defendant in his status as president, and therefore representative of, plaintiff’s employer. Unlike Stoker v. Wood, supra, or Chambers v. Gibson, 145 Ga. App. 27 (243 SE2d 309) (1978), this is not a case where it is conclusively shown that the allegedly negligent act of the executive officer was committed in his representative capacity. Thus, defendant is not entitled to summary judgment. See Miller v. Massullo, 172 Mich. App. 752 (432 NW2d 429) (1988) (in which the Michigan appeals court held the president and principal shareholder of plaintiff’s employer was not entitled to summary judgment because an issue of fact was created regarding whether defendant’s act in leasing to the employer an allegedly defective vehicle was independent of, and not related to, the common employment of both defendant and plaintiff); Robards v. Estate of Kantzler, 98 Mich. App. 414 (296 NW2d 265) (1980) (in which the Michigan appeals court held the president of a corporation who leased property to his employer was not entitled to workers’ compensation immunity but was subject to the same liability as any other premises lessor). But cf. Jackson v. Gibson, 409 NE2d 1236 (Ind. App. 1980) (where the Indiana appeals court held a landowner who . was sued under the theory of premises liability was immune from suit because he was also president and sole shareholder of plaintiff’s employer but did not analyze the capacity in which defendant was acting at the time the alleged negligent acts were committed, as in the cases cited above) and Rodgers v. Hembd, 518 NE2d 1120 (Ind. App. 1988) (in which that same court held an architect who was sued for professional negligence was immune from suit because he was also an officer of plaintiff’s employer, but the court also noted defendant’s design was executed in the course of his employment and was approved by the employer).

Decided October 29, 1990.

John T. Croley, Jr., for appellant.

Watson, Spence, Lowe & Chambless, Mark A. Gonnerman, Dawn G. Benson, for appellee.

Judgment reversed.

Deen, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A90A1206.
    NATIONAL FIDELITY LIFE INSURANCE COMPANY v. LANE.
    (398 SE2d 775)
   Beasley, Judge.

Defendant National Fidelity Life Insurance Company appeals the judgment entered on a $50,000 jury verdict for plaintiff Lane. He had sued for breach of a disability insurance contract and nonpayment of a claim. The insurer contends that the trial court erred by failing to stay the suit and enforce an “arbitration” provision in the contract.

Lane was an airline captain insured under a contract of disability with National Fidelity. The policy provided for a single lump sum payment of $50,000 if Lane became permanently disabled from pursuing his occupation as an airline pilot. Lane would be entitled to the payment if after 12 months of continuous and uninterrupted medical suspension from flight status it was determined that he was permanently prevented from carrying on this occupation as a result of his disability. After disability occurred, the insured was to notify the insurer, which then had a right to investigate the claim and interview the insured’s physicians. The insurer could then accept the decision of the insured’s medical advisor and pay the claim. Or it could choose its own medical advisor, who could examine the medical records and the insured. If the two agreed, the claim would be paid. If they did not, the policy as amended provided that the two “shall choose a third medical advisor to act as a referee.” This so-called “referee” was to also examine the medical records and the insured and, after consulting with the others, break the tie. The three medical advisors were then to give a written opinion to the insured and insurer, and the contract provided that it be final and binding. The insurer’s medical advisor and the third medical advisor were to be experts in the field. Thus it was contemplated that physicians, a maximum of three, would decide whether the claimant was disabled or not, as defined by the policy.

The parties also agreed in the policy that no action at law or in equity would be brought to recover prior to the expiration of 60 days after determination of disability, actually non-disability, in accordance with the policy requirements.

Lane filed the present action prior to such a determination. Insurer responded and moved to stay the proceedings pending arbitration. The trial court denied the stay, concluding that the policy did not clearly make arbitration a condition precedent to the right to bring suit. It further concluded that even if it did, the insurer’s actions in failing and refusing to institute the arbitration procedures after Lane’s numerous requests to do so, together with the insurer’s delays which caused Lane’s claim to remain unresolved for two years after its initial filing, constituted a jury question as to whether or not the insurer had waived or abandoned arbitration. Reconsideration was denied and the case proceeded to trial.

The insurer maintains that the case is governed by the Federal Arbitration Act, 9 USC §§ 1-13, specifically § 2, and thus, the policy’s arbitration provision was valid, irrevocable, enforceable and constituted a condition precedent to Lane’s' right to bring a civil action.

We assume arguendo that the policy does require “arbitration” as a condition precedent to suit by requiring a medical tie-breaker in case the parties’ own medical advisors disagree, that the case involves interstate commerce so that the Federal Arbitration Act applies, and that such application in this case does not conflict with state law. See West Point-Pepperell v. Multi-Line Indus., 231 Ga. 329, 331 (201 SE2d 452) (1973); Gresham v. Ga. Dept. of Human Resources, 257 Ga. 747, 748 (1) (363 SE2d 544) (1988). The Act does not as a matter of law mandate a stay of legal action in the context of this case.

Under the Act, “[a]n arbitration clause of a contract may be repudiated, waived, or abandoned, by either or both parties to a contract. [Cits.] An agreement to arbitrate is waived by any action of a party which is inconsistent with the right of arbitration. [Cits.]” McCormick-Morgan v. Whitehead Elec. Co., 179 Ga. App. 10, 12-13 (345 SE2d 53) (1986). Section 2 itself expressly states a broad exception encompassing the circumstances here. At trial, the court instructed the jury on the principles of waiver, abandonment, or repudiation of an agreement to arbitrate. The jury was authorized to consider whether or not the insurer’s actions regarding Lane’s disability claim were inconsistent with any right to stand on the referee procedure in the insurance contract so as to render it unenforceable.

There was evidence of the following. Lane was removed from flight status on January 26, 1987. He notified the insurer of his claim on July 23. The policy as amended requires notification during the 12-month period, contemplating opportunity for early investigation. About July 30 Lane received a letter from the insurer’s adjuster requesting that Lane complete a form and execute a medical information release, which he did, mailing them back August 1. Lane did not hear again from the adjuster until December, when he received a copy of the July 30 letter and the second request for medical information and release. Lane again completed the forms and returned them. Even though the adjuster claimed that the original executed documents had never been received, the adjuster initiated no follow-up during the approximately five months between letters.

After reviewing Lane’s medical records, the adjuster wrote Lane on January 29, 1988, informing him that the insurer wanted a medical evaluation done at the Mayo Clinic in Rochester, Minnesota. Lane agreed to go but heard nothing further about it. On March 24, the adjuster wrote to inform Lane that the insurer had forwarded his medical information to a physician in Houston, Texas, and that the earliest a medical evaluation could be done was June. Between February and June, Lane spoke with the adjuster 15 times in an effort to process his claim. He went to Texas for the medical evaluation during the week of June 13. The insurer made no arrangements for Lane’s food or transportation. Lane returned from Texas and waited. After approximately 30 days with no word as to the decision of the insurer’s medical advisor, Lane retained legal counsel.

On July 19, Lane’s counsel telephoned the adjuster. The following day, counsel wrote the adjuster asking for copies of records and reports, including the report from the doctor in Texas. The letter also stated that if the doctor’s report indicated that Lane was not disabled as defined in the policy, then the letter would constitute a request that the policy provision regarding appointment of a third medical advisor/referee be immediately implemented so as to avoid delay.

After receiving no response, Lane’s counsel again wrote to the adjuster on September 12, demanding, inter alia, full payment pursuant to the terms of the policy. The adjuster responded by letter of September 21, advising that his recommendation to insurer would be to deny Lane’s claim and giving the reasons he would recommend defending the claim on the basis of non-coverage in the event suit was filed by the insured. The letter did not respond to Lane’s July 19 request to implement the policy’s provision for a medical referee. On November 2, the adjuster wrote Lane’s counsel about a lack of response concerning an “offer of arbitration,” but at trial he testified that the reference to arbitration was erroneous. On November 15, Lane’s counsel wrote the adjuster stating that Lane was more than willing to implement arbitration procedures and naming Lane’s medical advisor. The adjuster did not contact Lane’s counsel again.

Decided October 30, 1990.

Carter & Ansley, H. Sanders Carter, Jr., Anthony J. McGinley, for appellant.

Alan W. Connell, for appellee.

Lane filed suit on December 9, almost two years after his removal from flight status, nearly a year and a half after notifying insurer of his claim, and almost a year after reaching the 12-month period of suspension from flying. Insurer’s medical advisor was not asked to arrange with insured’s medical advisor for a medical referee until January.

Such evidence permitted the jury to conclude that any mandatory three-expert determination under the policy as a condition precedent to suit was waived or abandoned by the action or inaction of the insurer inconsistent with an attempt to resolve Lane’s claim short of lawsuit. The letter of denial and the lack of a timely response to the request for a third medical advisor/referee, which was contractually required even without a request, were inconsistent with the out-of-court procedure contemplated. Consequently the provision, even in light of the Federal Arbitration Act, fails to undermine the judgment entered on the jury’s verdict.

Judgment affirmed.

Been, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    A90A1337.
    THE STATE v. WHITE.
    (398 SE2d 778)
   Banke, Presiding Judge.

The state brings this appeal from the grant of the defendant’s motion to suppress evidence in a prosecution for possession of cocaine with intent to distribute.

While on routine patrol at approximately 10:00 p.m. on June 5, 1989, officers Kelley and O’Brien of the DeKalb County Police Department saw a car containing three men parked in the driveway of the defendant’s home. The man in the back seat of this vehicle, who proved to be the defendant, was talking to a fourth person who was standing outside the car. According to Officer Kelley, when this latter individual looked up and saw the patrol unit, he got a “real surprised look, a scared look on his face” and walked away. On the basis of these observations, combined with his knowledge that the street in question had been the scene of “increased drug traffic,” Officer Kelley got out of his patrol unit, walked up to the vehicle and looked inside. At this time, he observed the defendant make a motion with his hand “like he was attempting to hide something down by his side.” He then instructed the defendant to get out of the vehicle. After the defendant had complied, he shined a flashlight around the area where he had been seated and observed a clear plastic bag protruding from the crevice between the bottom and top of the back seat, containing a number of “small green zip locked plastic bags with a compressed white powder substance which appeared to be crack.” Held:

“ ‘On a motion to suppress evidence, the trial judge sits as the trior of the facts, hears the evidence, and his findings . . . are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support (them).’ State v. Swift, 232 Ga. 535, 536 (207 SE2d 459) (1974).” Ward v. State, 193 Ga. App. 137, 138 (387 SE2d 150) (1989). Reviewing the evidence pursuant to this standard, we hold that the trial court was authorized to grant the motion to suppress. The defendant was, after all, merely sitting in a car in what proved to be his own driveway; and we do not believe the mere fact that the individual to whom he was talking got a startled look on his face and walked away upon seeing the police, combined with the officers’ knowledge that the area was known for drug trafficking, was sufficiently indicative of criminal wrongdoing on anyone’s part to justify an investigatory detention pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). Compare Frankum v. State, 174 Ga. App. 660 (1) (331 SE2d 52) (1985).

The state’s reliance on this court’s decision in Watson v. State, 190 Ga. App. 696 (379 SE2d 817) (1989), as authority for a contrary conclusion is misplaced. Acting on knowledge that the police “had been having a lot of cars with dealer drive-out tags that came back to be stolen,” the officer in that case had merely approached a vehicle bearing such a tag and asked the driver to produce his driver’s license. A police officer may ask a driver to produce his driver’s license with only minimal reason to suspect criminal wrongdoing. Cf. Chumbley v. State, 180 Ga. App. 603 (349 SE2d 823) (1986). Indeed, he may do so in some instances without any suspicion of criminal wrongdoing at all. See Sapp v. State, 188 Ga. App. 700 (374 SE2d 114) (1988). However, since the vehicle at issue in the present case was parked in a private driveway and had not been observed moving, no such pretext for approaching it was available to the officers. Moreover, the suspicion upon which they were acting was directed to the entire population of the neighborhood rather than merely to a limited number of vehicles being operated without valid license tags. Thus, the officers were in effect claiming the authority to detain anyone in the area who exhibited furtive behavior. We hold that the trial judge was authorized under these circumstances to conclude that the investigative inquiry was unlawfully premised “on no more than a mere hunch or inclination.” State v. Smith, 137 Ga. App. 101, 102 (223 SE2d 30) (1975).

Decided October 30, 1990.

Robert E. Wilson, District Attorney, Jeffrey H. Brickman, Assistant District Attorney, for appellant.

Michael M. Sheffield, for appellee.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1506.
    HUDSON v. THE STATE.
    (398 SE2d 779)
   Pope, Judge.

Defendant Ronnie Hudson was charged with speeding, driving with no license and driving with .12 percent or more by weight of alcohol in his blood in violation of OCGA § 40-6-391 (a) (4). He entered guilty pleas to the speeding and no license charges and now appeals his conviction by a jury of the DUI offense. We affirm.

Although a transcript from the trial does not appear in the record on appeal, the following facts were stipulated: Officer Zinker of the Glynn County Police Department stopped defendant after radar indicated defendant to be traveling at 77 mph in an area where the posted speed limit was 50 mph. Defendant did not have his driver’s license but the officer was able to identify defendant as the driver. The officer observed an empty beer bottle in the vehicle and noticed defendant’s eyes were glassy and his speech was “stuttered and confused.” Officer Zinker administered an alcosensor test at the scene, and then arrested defendant and transported him to the Glynn County Police Department. Defendant was advised of his Implied Consent Rights and an Intoximeter test was administered. Officer Zinker testified defendant initially registered .13 grams on the Intoximeter test. Approximately one hour later, a second test was administered and defendant registered .11 grams. Officer Zinker also testified as to his qualifications to administer the test.

The defendant presented expert testimony concerning the test results. Defendant’s expert testified that a device on the Intoximeter used to filter out substances in the breath which would alter the results was not used when the test was administered to defendant. The expert further testified that the print-out sheet showing the test results which was admitted at trial showed a blood alcohol “value” of .13, and that while it Was correct to indicate a “value” of .13, this value should not be considered a blood alcohol “concentration” because the filtering device was not used.

Defendant testified that on the day of his arrest he had been to his sister’s house for a cookout and he had consumed one beer before arriving there and three beers while at the cookout. Defendant’s sister testified that defendant had stood next to the barbeque fire while some of the meal was being cooked and that she uses vinegar in her barbeque sauce. Defendant’s expert testified that without the use of the filtering device the test results could have been affected by the vinegar in the barbeque sauce and that hydrocarbons (from the barbeque fire) on a person’s clothes could produce a “false” reading on the test.

1. In his first two enumerations of error defendant challenges the sufficiency of the evidence and contends that the trial court should have granted his motion for directed verdict because the evidence adduced against him at trial failed to show a blood alcohol “concentration” of .12 or greater (specifically .13). We find no merit to this contention. The essence of defendant’s argument on appeal is that the evidence he introduced at trial concerning the effect of extraneous factors on the test results stood unrebutted and thus the evidence was insufficient to convict him. We disagree. “The state laid a proper foundation for the introduction of the test results. . . . [Cits.] The defendant’s challenge to the reliability of the test results . . . [did not demand that judgment be entered in his favor] but went merely to the weight to be placed on them by the jury.” Sanders v. State, 176 Ga. App. 869, 869-870 (1) (338 SE2d 5) (1985). Consequently, although the evidence concerning the test results was not without conflict, we conclude it was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of the offense charged.

2. Defendant also enumerates as error the denial of his motion for mistrial made after the State argued to the jury that while defendant accurately stated in his argument that no law existed in this state which prohibited drinking and driving, “maybe there ought to be.” Specifically defendant argues he was harmed by the statement because it may have misled the jurors or “lessenfed]” their concern as to the proof necessary to convict defendant of the offense charged. We disagree. In the absence of a transcript of the proceedings below, we must assume the trial court correctly charged the jury that they would be authorized to convict the defendant only upon finding beyond a reasonable doubt that defendant was driving a motor vehicle with a .12 grams or more blood alcohol content. “ ‘[Defendant] has the burden of showing error affirmatively by the record and this burden is not discharged by recitations in the brief. (Cit.)’ [Cit.]” McKinney v. State, 192 Ga. App. 6, 7 (2) (383 SE2d 608) (1989). This enumeration is without merit.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.

Decided October 30, 1990.

Lane, Tucker & Crowe, Robert L. Crowe, for appellant.

Richard H. Taylor, Solicitor, for appellee.


text:
    A90A1856.
    JONES v. McCOY et al.
    (398 SE2d 786)
    Decided October 30, 1990.

      Repasky & Bates, Alexander J. Repasky, Fred R. White, for appellant.

      Harper & Cooper, J. Blair Craig, Christopher M. Farmer, for appellees.
   Banke, Presiding Judge.

The appellant brought this action against the appellees to recover for injuries allegedly sustained in a motor vehicle collision. The trial court entered an order submitting the claims to arbitration pursuant to the local rules of the Fulton County Superior Court, and the arbitration tribunal returned a decision in favor of the appellees. Based on the appellant’s failure to file a demand for jury trial within 30 days after entry of that decision, the trial court entered an order on October 30, 1989, adopting it as the final judgment in the action. Thirty-one days later, on November 30, 1989, the appellant filed a notice of appeal from this judgment. Thereafter, on December 4, 1989, he filed a motion to set aside the judgment pursuant to OCGA § 9-11-60 (d) (2). That motion was denied by the trial court on April 25, 1990. No subsequent filings appear in the record. Held:

1. The appeal must be dismissed due to the appellant’s failure to file his notice of appeal within 30 days after entry of the final judgment in the case. See OCGA § 5-6-38 (a).

2. Although the appellant enumerates as error the denial of his motion to set aside, that order would not have been subject to review in this appeal even had it been entered within the 30-day period prior to the filing of the notice of appeal, inasmuch as such appeals are subject to the application process set forth at OCGA § 5-6-35. See OCGA § 5-6-35 (a) (8). Stone v. Dawkins, 192 Ga. App. 126 (384 SE2d 225) (1989).

Appeal dismissed.

Birdsong and Cooper, JJ., concur.


author: Birdsong, Judge.

text:
    A90A2000.
    MELLS v. THE STATE.
    (398 SE2d 785)
    Decided October 30, 1990.
    Jimmy Lee Mells, pro se.

      Michael C. Eubanks, District Attorney, for appellee.

      Francis X. Norton, Jr., amicus curiae.
   Birdsong, Judge.

As an indigent, pro se appellant Jimmy Lee Mells appeals his judgment of conviction of possession of cocaine with intent to distribute and of misdemeanor possession of marijuana.

After failing to file timely enumerations of error and appellant’s brief, appellant was tendered a five-day warning letter. He claims that without timely access to a copy of his trial transcript he could not comply with the order. In the interim an amicus brief was filed in appellant’s behalf by the Prisoner Legal Counseling Project, a legal services agency and clinical legal education program operated by the University of Georgia School of Law. Amicus curiae essentially asserts the record is silent regarding whether appellant made a knowing, intelligent, and voluntary relinquishment of his right to appellate counsel, without being informed of the dangers thereof. Amicus contends that this case should be remanded so these deficiencies can be corrected in a proper post-trial proceeding. We agree. Jacobs v. State, 184 Ga. App. 869 (363 SE2d 155); see generally Cochran v. State, 253 Ga. 10 (315 SE2d 653); Jones v. Wharton, 253 Ga. 82, 83 (316 SE2d 749); Chapman v. State, 183 Ga. App. 376 (359 SE2d 14); compare Clarke v. Zant, 247 Ga. 194 (275 SE2d 49); Roberts v. Caldwell, 230 Ga. 223, 224 (196 SE2d 444); Moss v. State, 196 Ga. App. 81 (1) (395 SE2d 363); Black v. State, 194 Ga. App. 660 (1) (391 SE2d 432).

Although appellant asserts he filed a proper request with the court below for a trial transcript and all other documents pertinent to his case, the suppression motion hearing has not been transcribed. In the interest of judicial economy, the trial court also should ascertain whether a request for transcription of the suppression motion hearing has been duly filed and, if so, take appropriate action with respect thereto.

This appeal is dismissed without prejudice and remanded for an appropriate post-trial proceeding, consistent with the authority above cited, regarding whether appellant desires to knowingly, intelligently and voluntarily relinquish his right to appellate counsel.

Appeal dismissed and case remanded with direction.

Banke, P. J., and Cooper, J., concur.


author: Deen, Presiding Judge.

text:
    A90A2132, A90A2133.
    VENTURE DESIGN, LTD. v. ORIGINAL APPALACHIAN ARTWORKS, INC. et al.; and vice versa.
    (398 SE2d 781)
   Deen, Presiding Judge.

These appeals arise from a suit to recover for leakage and water damage to her condominium brought by Ramona Churvis against Original Appalachian Artworks, Inc. (hereinafter “OAA”), the Hanover House Condominium Association, Inc. (hereinafter “Hanover”) and the Sonenberg Company, the management company retained by Hanover. Ms. Churvis bought her unit in 1978, and experienced some leakage problems in 1983 which were corrected satisfactorily by Hanover. In 1984 OAA purchased a condominium unit above the Churvis unit. The floor of the balcony of the OAA unit is over the roof of a portion of the Churvis unit. Venture Design, Ltd. (hereinafter “Venture”), contracted for renovation of the OAA unit, which was undertaken in 1985 and 1986. The contract contained an indemnity clause under which Venture agreed to indemnify OAA from all costs, expenses, damages and attorney fees which might arise from any claim for injury to personalty or realty. Hanover also required Venture to provide it an indemnity agreement indemnifying it from any such claims “by reason of any act on the part of OAA” and Venture.

Once the renovations were undertaken by Venture, water again began infiltrating into the Churvis unit, causing extensive damage. After unsuccessfully seeking to have the damage repaired, on July 28, 1988, Ms. Churvis filed the instant suit against Hanover, the Sonenberg Company and OAA. Hanover and the Sonenberg Company denied all allegations of negligence, bringing a cross-claim against OAA for indemnification. Hanover, the Sonenberg Company and OAA also filed third-party complaints against Venture based on indemnification. Venture answered and discovery was pursued, culminating in a consent order entered into by all parties on December 5, 1989, in which a settlement was reached. Under the terms of the settlement, the defendants agreed to pay Ms. Churvis $40,000 to be apportioned equally among them, plus the cost to repair the OAA balcony for an amount not to exceed $10,000. The parties also waived their rights to a jury trial on the claims raised against each other and agreed to submit these issues to a trial judge.

Ms. Churvis alleged that during the summer of 1986, while heavy construction work was being performed on the OAA unit, she heard a loud noise directly above her unit and felt a severe vibration which caused bathroom tiles and a wall vent to fall out and her chandeliers to sway. She testified that she did not actually know what was dropped, but that she saw a large crane when she looked out the window and the next day there was an iron gazebo on the ground that had been removed from the balcony of the OAA unit. Venture’s construction manager admitted that they had used a crane to lower objects onto the OAA balcony, but denied that any heavy objects had been dropped or that Venture’s renovations of the OAA unit had caused any water damage to the Churvis unit. The construction manager further testified that after the gazebo was removed Venture had to repair bolt holes in the balcony with an epoxy sealant, and that these holes could have gone through the waterproofing membrane between the floor of the OAA balcony and the ceiling of the Churvis unit.

Arla Moskowitz, president of the Hanover homeowners’ association, testified about the policies regarding damage to the units and who is responsible for such repairs. When a complaint is made, Hanover must determine whether the source of the damage is in a common area, which it must pay for, or if the problem originated from within a unit, where it is generally the owner’s responsibility. According to the condominium declaration, each owner is responsible for maintenance of his or her unit, including the balcony which is defined as a “limited common area.” Thus Hanover had to repair roof damage, but the owners must maintain their balconies. OAA denied responsibility for the water damage, contending that the source of the problem was not its balcony, but the roof of the Churvis unit, which Hanover had the duty to repair.

Andrew J. Gravino testified as an engineering expert for OAA that upon his inspection of the premises he discovered that water was infiltrating underneath the glass sliding doors in the OAA unit, and that in his opinion any leakage coming from the OAA balcony was due to a breach in the membrane waterproofing above the structural slab which constituted the roof of the Churvis unit. Gravino further stated that although there were areas he could not inspect under some planters which were too heavy to be moved, the rest of the “wearing surface” of the balcony appeared to be in good condition and well maintained. Seymour W. Liebmann, a construction consultant who testified as Venture’s expert, was not allowed entry to the OAA unit, but upon inspection of the Churvis unit on several occasions he discovered water which in his opinion was coming directly from the OAA unit above, specifically from around the glass patio doors. In Liebmann’s opinion the waterproofing membrane beneath the OAA balcony had been violated by an outside force which could have been caused by any number of things, such as drilling through the membrane from above, extracting anchor bolts, improperly sealing the membrane, using epoxy cement, or some type of heavy blow.

The trial court found that the OAA balcony had been damaged by the negligent acts of Venture; that OAA had been negligent in its refusal and failure to cooperate and take remedial action to make repairs to the balcony; that the joint negligence of OAA and Venture caused and produced the damage to the Churvis unit; that Hanover had no duty to repair the OAA balcony; that OAA had the duty and responsibility of upkeep, maintenance and repair of its balcony; that OAA was entitled to complete indemnity from Venture pursuant to the provisions of the contract between them; that Hanover was entitled to reimbursement of all monies paid by it to fund the settlement with Ms. Churvis; and that the Sonenberg Company was not liable to any of the parties to the action. Venture appeals from this judgment and OAA appeals in the event the judgment is not affirmed in its entirety.

1. Venture contends that the trial court erred as a matter of law in finding that it was negligent, as there was no evidence to support such a finding. In a bench trial the court sits as trier of fact and its findings will not be set aside unless clearly erroneous. OCGA § 9-11-52 (a). Thus where there is any evidence to sustain such findings an appellate court will not disturb them, and the trial court could reasonably have found from the evidence in this case that Venture negligently damaged the waterproofing membrane on the OAA balcony so as to cause the damage to the Churvis unit. Kimbrell v. Effingham Bd. of Tax Assessors, 191 Ga. App. 544 (382 SE2d 388) (1989).

2. Venture complains that the findings of fact entered by the trial court are insufficient for a reviewing court to determine what evidence was considered, or if the findings were supported by the evidence, as the judgment merely states the court’s answers to material issues. OAA raises the same issue in its appeal, asserting in addition that the trial court therefore erred in failing to amend the judgment pursuant to its post-trial motion made in accordance with OCGA § 9-11-52 (c).

We find no grounds for reversal. “When the trial court makes findings, express or implied, in a bench trial ‘(t)hese findings of fact and conclusions of law meet the requirements set forth in (OCGA § 9-11-52 (a)) (CPA Rule 52 (a)).’ [Cit.] The trial court’s finding that [OAA ‘was negligent in its refusal and failure to cooperate and to take remedial action and make repairs to its balcony’; that Venture’s negligent act caused the damage to the OAA balcony; and that OAA’s and Venture’s joint negligence ‘caused and produced the damage to the [Churvis] condominium unit’] and the findings of fact inherently contained therein, are not clearly erroneous. Thus, the trial court did not err. OCGA § 9-11-52 (a).” Manderson & Assoc. v. Gore, 193 Ga. App. 723, 735 (9) (389 SE2d 251) (1989).

3. Venture argues for the first time on appeal that the indemnity agreement between it and OAA was contrary to public policy under OCGA § 13-8-2 (b) and therefore invalid. However, “[o]n appeal only issues properly raised before the trial court will be considered. [Cits.]” Department of Transp. v. Hillside Motors, 192 Ga. App. 637, 638 (1) (385 SE2d 746) (1989). Thus this enumeration is without merit.

Decided October 30, 1990.

Cone & Shivers, Donald M. Shivers, for appellant.

Vaughan & Murphy, C. David Vaughan, Stanley F. Birch, Jr., Lela L. Smith, Long, Weinberg, Ansley & Wheeler, Meade Burns, for appellees.

4. Venture’s final two enumerations of error, which assert that the trial court erred in failing to specify the amount of damages due from it for repairs to the OAA balcony and in awarding $40,000 in damages against it because there was no evidence to support such an amount, are likewise not meritorious. Prior to the bench trial all parties, including Venture,, entered into an agreement providing that Hanover, the Sonenberg Company and OAA would repair the OAA balcony with costs of the work to be borne equally and not to exceed $10,000. The parties, including Venture, also expressly agreed to try all issues concerning liability, damages, costs, expenses and attorney fees without a jury and stipulated “that the total amount of liability to be apportioned to, between or among them, exclusive of costs, expenses and attorney fees shall be $40,000 plus the costs incurred and paid relative to the remedial work” on the OAA balcony. “The consent of the parties to a judgment has the effect of removing any issuable defenses previously filed.” OCGA § 9-12-23. Therefore, “because [Venture] both consented to and participated in preparation of the agreement, [it] . . . cannot now successfully appeal and obtain a reversal of the . . . disposition to which [it] agreed. [Cits.]” New v. Wilkins, 178 Ga. App. 337, 341 (2) (343 SE2d 136) (1986).

5. Because the judgment of the trial court is affirmed in its entirety, it is unnecessary to address the issues raised by OAA in its companion appeal; therefore, the appeal in Case No. A90A2133 must be dismissed.

Judgment affirmed in Case No. A90A2132; appeal dismissed in Case No. A90A2133.

Pope and Beasley, JJ., concur.


text:
    A90A2190.
    COPY SYSTEMS OF SAVANNAH, INC. v. PAGE.
    (398 SE2d 784)
   Deen, Presiding Judge.

Appellee Chris W. Page sued appellant Copy Systems of Savannah seeking to recover a bonus he claimed to be due as a former employee under a provision of the company’s incentive Bonus Plan. This provision recited as follows:

“MANAGER’S BONUS POOL:
Qualifying Managers will participate in bonuses based on the consolidated financial statements of Copy Systems. The participation rate for the managers is expressed as a % of profits and is based on greater participation rates for greater profit levels. The profit levels and participation rates are as follows:
PROFIT AMOUNT AVAILABLE BONUS
$100,000 - $150,000 15.0% of before tax profit
151.000 - 250,000 17.5% of before tax profit
251.000 - 350,000 20.0% of before tax profit
351.000 + 22.5% of before tax profit”

Copy Systems’ before-tax profit for the year in question was $125,373.99. Page was entitled to receive 40 percent of the bonus pool under the Plan, and he contended that his share of the before-tax profit was 40 percent of 15 percent of $125,373.99, or $7,522.44. Copy Systems argued that the “Available Bonus” was intended to be calculated by applying the graduated percentages only to that portion of the total profit falling within the specified ranges of the “Profit Amount”; that is, in the present case, 40 percent of 15 percent of the amount of profit between $100,000 and $150,000, or $25,373.99. In the alternative, Copy Systems asserted that the contract presented an ambiguity requiring jury determination. The trial court ruled that the language of the provision was unambiguous that the percentage of each profit range should be applied to the total amount of before-tax profit to calculate the available bonus pool. Copy Systems appeals from the grant of Page’s motion for summary judgment. Held:

“ ‘There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity. Travelers Ins. Co. [v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (1986)].’ Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) [1986]. ‘The existence or non-existence of ambiguity is always a question of law for the court. [Cit.]’ [Cit.]” Stover & Sons v. Harry Norman, Inc., 187 Ga. App. 514, 515-516 (2) (370 SE2d 776) (1988).

We find no error here. Whether or not the interpretation of the provision sought by appellant “might be more sensible from a business point of view,” as it advocates, “this court will not rewrite the agreement the parties made, for courts are not at liberty to revise

Decided October 30, 1990.

McCorkle, Pedigo, Hunter & Johnson, David H. Johnson, for appellant.

Middleton & Anderson, Michael K. Mixson, for appellee.

contracts even when construing them. [Cit.]” Main Station v. Atel I, 190 Ga. App. 205, 208 (378 SE2d 393) (1989). If appellant had intended the clear and unambiguous phrase “before-tax profit” to mean “a portion of before tax profit within a certain range,” it should have so stated. “Where the language of the contract is plain, unambiguous, and capable of only one reasonable interpretation, no other construction is permissible. [Cits.] The trial court accordingly did not err in granting the appellee’s motion for summary judgment . . .” Reuss v. Time Ins. Co., 177 Ga. App. 672, 673 (340 SE2d 625) (1986).

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Carley, Chief Judge.

text:
    A90A0936.
    A90A0937.
    THE SURETY GROUP, INC. v. RAGSDALE. RAGSDALE v. ROCKWOOD INSURANCE COMPANY.
    (398 SE2d 718)
   Carley, Chief Judge.

James Ragsdale brought this tort action against the following: The Surety Group, Inc. (TSG), an insurance broker through which Ragsdale had sought to obtain certain insurance policies; Rockwood Insurance Company (Rockwood), the insurer from which TSG had allegedly obtained workers’ compensation and general liability policies for Ragsdale; and James Byrne, Rockwood’s general agent. In his complaint, Ragsdale alleged a claim for conversion of funds that had been paid by him or by a premium financing company on his behalf as premiums for the policies allegedly issued to him by TSG. After answering and denying the material allegations of Ragsdale’s complaint, TSG and Rockwood moved for summary judgment. The trial court denied TSG’s motion, but certified its order for immediate review. TSG’s application for an interlocutory appeal was granted and, in Case Number A90A0936, it appeals from the denial of its motion for summary judgment. Rockwood’s motion for summary judgment was granted and, in Case Number A90A0937, Ragsdale appeals from that order. The latter appeal will be addressed first.

Case No. A90A0937

1. Ragsdale urges that a genuine issue of material fact remains as to Rockwood’s liability for conversion of those premiums paid to it for a general liability policy that was purportedly issued to him for 1985-1986, but which never took effect. The record shows, however, that Ragsdale’s application for that policy was actually approved by Rock-wood at its home office and that at the request of TSG, which was Ragsdale’s own agent, the policy was then actually delivered to Byrne. Nevertheless, Ragsdale relies upon Newton v. Gulf Life Ins. Co., 55 Ga. App. 330, 331 (2) (190 SE 69) (1937) as authority for the proposition that the policy never took effect: “The mere issuance of an insurance policy in the name of an applicant, in response to his application, does not of itself indicate an unconditional acceptance of the application and an agreement to insure. The company may provide other safeguards and leave to its agents the final acts completing the final and unconditional acceptance.”

Newton v. Gulf Life Ins. Co., is not controlling in this case. Actual delivery to the insured is not essential to the validity of the policy where, as here, it is not made so by the terms of the policy itself. Guest v. Kennesaw Life &c. Ins. Co., 97 Ga. App. 840, 844 (1) (104 SE2d 633) (1958). See also New York Life Ins. Co. v. Babcock, 104 Ga. 67 (30 SE 273) (1898). “The fact that the policy was not delivered ... is of no consequence in [this] case. There was no agreement between the parties that delivery of the policy was essential to its validity. [Cits.]” Broome v. Mut. of Omaha Ins. Co., 119 Ga. App. 443, 446 (1) (167 SE2d 607) (1969). Likewise, “[t]he policy does not contain any stipulation making prepayment of the premium a condition precedent.” Mechanics & Traders Ins. Co. v. Mut. Real Estate &c. Assn., 98 Ga. 262, 267 (2) (25 SE 457) (1896). Compare Brown v. Mut. Benefit &c. Ins. Co., 131 Ga. 38, 39-40 (61 SE 1123) (1908). Thus, “this case varies from . . . Newton v. Gulf Life Ins. Co., [supra,] and similar cases . . . where the application, policy or receipt provided that the policy should not become effective until its delivery and payment of the first premium . . . , unmodified by any other contract provision.” Guest v. Kennesaw Life &c. Ins. Co., supra at 846 (2). Construing the evidence most strongly in favor of Ragsdale, no genuine issue of material fact remains as to Rockwood’s alleged conversion of premiums under the theory that its policy never took effect and the trial court correctly granted summary judgment in favor of Rockwood as to that theory.

2. Ragsdale further urges that Rockwood may be held liable for unreasonable delay in delivering the policy. However, such a delay would give rise to a cause of action in contract. See Matthews v. Nat. Life &c. Ins. Co., 141 Ga. App. 368, 370 (233 SE2d 442) (1977). A contract claim for unreasonable delay was neither pled in this tort action for conversion nor otherwise urged below. Accordingly, this contention is without merit. See Gerald v. Ameron Automotive Centers, 145 Ga. App. 200, 202 (2) (243 SE2d 565) (1978).

3. It is also urged that a genuine issue of material fact remains as to Rockwood’s liability for having engaged in a conspiracy with TSG to conceal the latter’s conversion of Ragsdale’s funds. However, as discussed in Division 4 below, TSG is, as a matter of law, not liable to Ragsdale for conversion. It follows that Rockwood cannot be liable under the theory that it engaged in any conspiracy with TSG.

Case No. A90A0936

4. With regard to TSG’s liability for conversion, Ragsdale urges that a genuine issue of material fact remains as to whether TSG commingled funds in violation of OCGA § 33-23-79 (b).

Even assuming that a commingling of funds in violation of OCGA § 33-23-79 were to give rise to a private cause of action in tort for conversion, the record in this case demonstrates that TSG was nevertheless entitled to summary judgment. Ragsdale has stipulated that all monies that were paid to TSG were actually, albeit perhaps tardily, disbursed by TSG to the proper parties. The monies received by TSG were applied toward either the payment of premiums for the policies, the return of unearned premiums to the premium financing company, or the commission that the insurers owed to TSG. Since we have held in Division 1 that the policies were in effect and that Rags-dale was afforded the coverages that he sought, it follows that Rags-dale himself never had a claim to the funds that had been paid to and were being held by TSG as premiums, regardless of whether or not they have been commingled for a time. Having received the full consideration that the funds held by TSG entitled him to receive, Ragsdale cannot recover for the purported conversion of those funds. See Stipp v. Bailey, 181 Ga. App. 555 (353 SE2d 52) (1987).

Ragsdale also argues that the trial court correctly denied TSG’s motion for summary judgment because genuine issues of material fact remain as to the commissions earned by TSG by virtue of Rockwood’s issuance of a “broad form” endorsement to Ragsdale. However, it is undisputed that Ragsdale never paid any additional premium for that endorsement and that TSG consequently never earned or retained any commission therefor. Moreover, since TSG’s commissions were paid from Ragsdale’s premiums but were paid by Rockwood, any issue regarding TSG’s commissions would be a matter to be resolved between TSG and Rockwood, not between TSG and Ragsdale. It follows that the trial court erred in denying TSG’s motion for summary judgment.

Decided October 10, 1990

Rehearing denied October 31, 1990

Kitchens, Kelley, Gaynes, Huprich & Shmerling, William J. Berg, for Surety.

Louis F. McDonald, for Ragsdale.

Gorby, Reeves, Moraitakis & Whiteman, Nicholas Moraitakis, Eve A. Applebaum, Andrew Nelson, for Rockwood.

5. TSG’s remaining enumeration of error is moot.

Judgment reversed in Case No. A90A0936. Judgment affirmed in Case No. A90A0937.

McMurray, P. J., and Sognier, J., concur.


text:
    A90A1290.
    ROBINSON v. STARR.
    (398 SE2d 714)
   Carley, Chief Judge.

In March of 1986, appellee-plaintiff initiated a legal malpractice action against appellant-defendant. Because OCGA § 9-11-9.1 had yet to be enacted, appellee naturally did not attach to his complaint an expert’s affidavit and appellant accordingly did not raise this lack of an expert’s supporting affidavit as a defense in his answer. In May of 1988, however, appellant did move for summary judgment and offered his own affidavit in support thereof. In his affidavit, appellant stated that he had “exercised that degree of care, skill, prudence, and diligence which lawyers of ordinary skill and capacity commonly possess and exercise in the State of Georgia and in general.” In opposition to appellant’s motion, appellee did not produce the affidavit of an expert who offered a contrary opinion to that expressed by appellant. Citing Rose v. Rollins, 167 Ga. App. 469 (306 SE2d 724) (1983) and other cases, the trial court granted summary judgment in favor of appellant in August of 1988.

Within the applicable statute of limitations, appellee thereafter initiated the instant legal malpractice action against appellant and, in compliance with the now-applicable pleading requirements of OCGA § 9-11-9.1, he did attach to his complaint the requisite affidavit of an expert. Since the allegations of his professional negligence were the same as those which had been asserted against him in the original action, appellant answered and, based upon the previous grant of summary judgment in his favor, raised the defense of res judicata. Appellant subsequently moved for summary judgment on his res judicata defense and, although the trial court denied appellant’s motion, it did certify its order for immediate review. The instant appeal re-suits from this court’s grant of appellant’s application for an interlocutory appeal from the denial of his motion for summary judgment.

1. “[W]here an order granting summary judgment in a prior suit is relied upon in final support of a plea of res judicata in a subsequent suit, the court considering the plea of res judicata should examine the underlying basis of the summary judgment. If that summary judgment actually was an adjudication of the merits (a plea in bar, or otherwise on the merits), the plea of res judicata should be sustained. However, if examination shows that the summary judgment actually was not an adjudication of the merits (a dilatory plea, etc.), the res judicata plea should be denied. [Cit.]” National Heritage Corp. v. Mt. Olive Mem. Gardens, 244 Ga. 240, 243 (260 SE2d 1) (1979). Accordingly, the issue to be decided in the instant case is whether the August 1988 order granting summary judgment in favor of appellant was or was not on the merits.

2. Existing law currently mandates that the plaintiff in a professional negligence action file an expert’s affidavit in two instances. OCGA § 9-11-9.1 imposes an initial pleading requirement on the plaintiff in such a case and mandates the filing of an expert’s affidavit with the complaint. However, as noted above, this pleading requirement was not in effect at the time appellee filed his original complaint and should have had no bearing in that action. OCGA § 9-11-56 imposes a subsequent evidentiary requirement on the plaintiff in such a case and mandates the filing of an expert’s affidavit in opposition to the expert’s affidavit filed in support of the defendant-professional’s motion for summary judgment. This evidentiary requirement was in effect at the time that appellant moved for summary judgment in the original action. See Rose v. Rollins, supra. However, the trial court in the instant case concluded that the August 1988 order had not been based upon the evidentiary merits pursuant to OCGA § 9-11-56, but solely upon an erroneous reliance upon appellee’s failure to have complied with the pleading requirements of OCGA § 9-11-9.1.

A review of the August 1988 order demonstrates that it does recognize that OCGA § 9-11-9.1 had been enacted subsequent to the filing of appellee’s complaint. It does not, however, purport to rely solely upon that statute as the basis for granting appellant’s motion for summary judgment. The order states: “It is not yet clear whether the legislature intended for OCGA § 9-11-9.1 to apply to causes of action which arose before July 1, 1987. However, the law was clear in Georgia prior to the enactment of the statute that, ‘[I]n a legal malpractice case, the presumption is that the legal services were performed in an ordinarily skillful manner. This presumption remains with the attorney until the presumption is rebutted by expert legal testimony; otherwise, the grant of a summary judgment in favor of the attorney is proper.’ Rose v. Rollins, [supra]. . .(Emphasis supplied in part and in original in part.) The August 1988 order then proceeds to apply the rationale of the Rose decision and concludes as follows: “[Appellee] has failed to submit an expert’s affidavit in rebuttal, to pierce [appellant’s] affidavit and support [his] malpractice action. Therefore, regardless of whether OCGA § 9-11-9.1 or the established rule of law as stated in Rose applies, [appellee] has failed to state a claim for which relief may be granted, and summary judgment for [appellant] is proper.” (Emphasis supplied.) This clearly purports to be a recognition that, regardless of the applicability of any pleading requirements imposed by the subsequently enacted provisions of OCGA § 9-11-9.1, appellee’s failure to have complied with the evidentiary requirements of OCGA § 9-11-56 nevertheless mandated the grant of summary judgment in favor of appellant on the merits.

It is true that, after this apparent ruling that appellant was entitled to summary judgment on the merits pursuant to Rose, the August 1988 order also engaged in a “further” extensive discussion as to why this disposition would not be “incongruous” with the Supreme Court decision in Glaser v. Meck, 258 Ga. 468 (369 SE2d 912) (1988). In that case, the Supreme Court reversed the grant of a defendant-professional’s motion to dismiss which had been predicated upon the failure of the plaintiff to comply with the pleading requirements of OCGA § 9-11-9.1. According to the August 1988 order “the Statute of Limitations has not yet run [in the instant case] and . . . [appellee] has adequate time to do what the plaintiff in Glaser could not — file a renewed action complete with an expert’s affidavit. Therefore, the Glaser case is distinguishable from the one presently before the Court and does not mandate a similar ruling.” In point of fact, the decision in Glaser is more readily distinguishable on the simple basis that it did not address the evidentiary burden borne by a plaintiff, who is opposing a defendant-professional’s motion for summary judgment. However, the mere fact that the August 1988 order may have subsequently undertaken this “further” discussion regarding the pleading requirements of OCGA § 9-11-9.1 in no way indicates that an underlying basis of the previous grant of summary judgment in appellant’s favor had not been appellee’s failure to comply with the evidentiary requirements of OCGA § 9-11-56. Instead, this “further” discussion is seemingly a mere recognition that, even if the pleading requirements of OCGA § 9-11-9.1 were otherwise also applicable in the instant case, the decision in Glaser nevertheless would not be a viable basis for allowing appellee to maintain his malpractice action against appellant.

An insufficiency in the allegations of a complaint is not a matter that is “proper for review on a motion for summary judgment where the allegations of the complaint are considered well-pleaded and the single issue before the court is whether on the merits the moving party in the position of a defendant has carried [his] burden of showing that as a matter of law the party in the position of a plaintiff is not entitled to relief because one essential element under any theory of recovery is lacking and incapable of proof. [Cit.]” Pickett v. Paine, 230 Ga. 786, 797 (4b) (199 SE2d 233) (1973). Accordingly, if the sole basis underlying the August 1988 order had been the pleading requirements of OCGA § 9-11-9.1, that order presumably would have merely dismissed appellee’s complaint for failing to have attached thereto an expert’s affidavit. Instead, the August 1988 order reflects that consideration was not confined to the initial pleadings but that, based upon a consideration of the subsequent evidence of record, summary judgment on the merits was granted in favor of appellant pursuant to OCGA § 9-11-56. “When a motion for summary judgment is made and supported . . ., an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided . . ., must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” OCGA § 9-11-56 (e). Since the August 1988 order purports to grant summary judgment in favor of appellant on the merits and not merely to dismiss appellee’s complaint for failure to comply with the pleading requirements of OCGA § 9-11-9.1, it follows that appellant’s res judicata defense in the instant case is viable and that the trial court erred in failing to' grant his motion for summary judgment based upon that viable defense.

Decided October 9, 1990

Rehearing denied October 31, 1990

Freeman & Hawkins, Jack N. Sibley, for appellant.

Ronald J. Doeve, Michael B. Lyndall, for appellee.

Judgment reversed.

McMurray, P. J., and Sognier, J., concur.


text:
    A90A1453, A90A1974.
    FERGUSON v. THE STATE (two cases).
    (398 SE2d 738)
   Deen, Presiding Judge.

Appellant was charged with armed robbery, aggravated battery, and burglary. The first two charges were nol prossed, and Ferguson plead guilty to the burglary charge. On September 14, 1987, he was sentenced to 12 years’ imprisonment and eight years’ probation; he was also ordered to receive psychological analysis, counseling, and any treatment deemed appropriate. On February 8, 1990, he attempted to withdraw his plea by filing a motion to set aside judgment pursuant to former Code Ann. § 3-702, subsequently OCGA § 9-3-21, which was repealed effective July 1, 1986. Ga. L. 1986, p. 294, § 2. This motion was denied February 20, 1990, and Case No. A90A1453 is an appeal from that order.

Decided October 17, 1990

Rehearing denied October 31, 1990.

Kevin Ferguson, pro se.

Robert E. Wilson, District Attorney, Thomas S. Clegg, Barbara B. Conroy, Assistant District Attorneys, for appellee.

On April 18,1990, Ferguson filed a request for an out-of-time appeal of his 1987 conviction, alleging essentially that his guilty plea was not voluntary, knowing, or intelligent; he filed a supplementary request on April 23. The court denied the requests on April 25, 1990. On June 1 Ferguson filed requests to proceed in forma pauperis and for appointment of counsel; the court denied these requests on June 11, 1990. In Case No. A90A1974 he appeals from this order. Held:

1. OCGA § 17-9-61 (b) permits the filing of a Motion in Arrest of Judgment provided the motion is filed within the same term in which judgment is entered. On February 21, 1990, the court below held that, because judgment in Case No. A90A1453 was entered in September 1987 and the motion was not filed until February 1990, the statutory requirements were not met and the motion must be denied as untimely. The trial court went on, however, to discuss the merits of the motion and found that, even had the motion been timely filed, it would have made no difference because the plea was entered knowingly, freely, and voluntarily. This motion having been denied, the court also denied appellant’s motion for appointment of counsel.

The record shows that the appeal to this court was filed more than 30 days after entry of the order denying the motion in arrest of judgment. We have no jurisdiction over an untimely filed appeal and must therefore dismiss Case No. A90A1453. OCGA § 5-6-38.

2. It appears that the entry of the plea in Count 3 was deficient in that it did not set out a clear factual basis. However, since appellant’s request for an out-of-time appeal was denied by order by April 25, 1990, his June 4 requests were moot, and the trial court’s ruling of June 11, 1990, was correct.

Appeal dismissed in Case No. A90A1453; judgment affirmed in Case No. A90A1974.

Pope and Beasley, JJ., concur.


text:
    A90A1771.
    FREEMAN v. MID-SOUTH INSURANCE COMPANY.
    (398 SE2d 727)
   Deen, Presiding Judge.

Phillip W. Freeman brought suit against his group insurance carrier, Mid-South Insurance Company, for failure to pay medical expenses which he incurred as a result of coronary bypass surgery on May 8, 1988. The insurance company moved for summary judgment, contending that Freeman’s medical condition barred him from recovering benefits under the pre-existing clause of the policy. Freeman appeals from the grant of that motion. Held:

The evidence showed that in 1980 Freeman was diagnosed as suffering from arteriosclerotic heart disease and underwent coronary artery bypass surgery. Following the surgery, he was prescribed medication to control his blood pressure. In 1985 he received a different prescription from a Dr. Wilson to lower and maintain his blood pressure. The following year, Dr. Wilson prescribed Diltiazem for angina. Between August of 1986 and May of 1988, Freeman received a prescription from his family doctor for gout and continued to take his prescriptions for his heart condition. In May of 1988 he underwent a second coronary bypass operation and incurred $31,861.99 in medical expenses. Mid-South paid $3,000 of his claim, but denied payment of the balance in reliance upon the policy’s $3,000 benefit cap for expenses incurred because of a pre-existing condition.

Freeman became a participant in his employer’s group medical insurance plan on March 1, 1988. The policy was issued by Mid-South, and no health questions were asked of the participants. The policy, however, contained a pre-existing condition exclusion:

J. Pre-existing limitation.
1. Definition — a pre-existing condition, for purposes of major medical expense or accident and sickness disability insurance is any type of injury or sickness or related condition for which, during the twelve (12) month period immediately preceding the effective date of such person’s coverage under the policy;
a. Medical expenses were incurred, or
b. Medical treatment was advised by a physician (whether or not such treatment was given), or
c. Drugs or medications were prescribed by a physician (whether or not taken or used).

Appellant admits that he took the medications for his heart condition after they were prescribed and continued to take them until his second surgery. He claims, however, that he received no other written prescriptions for his condition. In order to obtain refills of the existing prescriptions, he would simply call his local drugstore to obtain a refill, and never had to a obtain a prescription authorized by a physician. He argues that he is therefore outside the limitation imposed under subsection c. He further claims that subsection a is vague and must be construed against the insurer.

Decided October 15, 1990

Rehearing denied October 31, 1990

Webb, Carlock, Copeland, Semler & Stair, Robert C. Semler, Philip P. Taylor, for appellant.

Troutman, Sanders, Lockerman & Ashmore, H. Carol Saul, Dan R. Gresham, for appellee.

We must disagree with this contention. The definitions section at the beginning of the policy provides under Article 1.15 — OTHER MEDICAL SUPPLIES AND SERVICES:

(i) Drugs and medicines lawfully obtainable only upon the prescription of a physician . . .

Under Article 1.18 — COVERED EXPENSES:

“Covered expenses” means charges for the services and supplies and services listed below . . .
F. Other medical supplies and services as defined in Article 1.15.

Applying the rules of interpretation applicable to contracts as required under Life Ins. Co. of Va. v. Conley, 181 Ga. App. 152 (351 SE2d 498) (1986), we do not find the limiting exclusion vague. Appellant’s claim is barred by this provision if he incurred medical expenses related to, received, medical treatment related to, or was prescribed medication related to his arteriosclerotic heart condition within 12 months of the effective date of the policy. By his own admission, Freeman has been treated by the use of various prescription drugs for this condition and he continues to take them on a daily basis. He therefore falls within the policy exclusion, as medical expenses are encompassed within the meaning of “medical services” as they are defined in the policy, and prescription drugs are a medical expense.

Judgment affirmed.

Pope and Beasley, JJ. concur.


text:
    A90A0954.
    TURNER v. MARTA.
    (398 SE2d 794)
   Beasley, Judge.

The trial court entered judgment for MARTA on a civil arbitration award in a suit for personal injuries Turner sustained while exiting a MARTA bus. Turner contends that the court abused its discretion in granting MARTA’s motion for judgment for failure to timely file, with the court administrator, a demand for trial within 30 days of the filing of the arbitration award, as prescribed by local Rule 1000 governing arbitration.

A chronology of events is necessary because timeliness is the crux of the appeal. Pursuant to the local rule, Turner’s case was ordered for resolution by arbitration. The arbitrators held a hearing and issued an award in favor of MARTA on February 17, 1989. That day the award was filed with the court administrator, as provided for in section 14 of the rule. On March 16 Turner filed, with the clerk of court, a demand for jury trial and/or trial de novo. She filed the demand with the court administrator on March 21. The award was also filed with the court clerk on March 21. Turner’s demand was refiled with the court clerk on March 22. On March 28, MARTA moved for a consent judgment.

Under sections 16 and 17 of Rule 1000, any party may “file a demand for trial within thirty (30) days of the filing of the arbitration award with the Court Administrator or his designee who shall make a notation and entry of the date of filing the award and of the trial demand; . . . filing such demand for trial will entitle all parties to a de novo trial. . . .

“Failure or refusal to file within thirty (30) days a demand for trial by all parties shall constitute a waiver of trial by jury or non-jury and be deemed a consent to the arbitration award; after the expiration of such thirty (30) days without filing of a demand, any party may move for the entry of a consent judgment and dismissal of prejudice based upon the arbitration award.”

Appellant concedes that the demand for trial was one day short of reaching the court administrator within 30 days of the filing of the award with the court administrator. She contends that she was in substantial compliance because the demand was timely filed with the court clerk even though it did not reach the court administrator in time. Tippins v. Winn-Dixie Atlanta, 192 Ga. App. 172 (384 SE2d 199) (1989), is cited for the proposition that filing with the clerk was sufficient.

Rule 1000 expressly provides that the demand for trial be filed with the court administrator or his designee, within 30 days of the filing of the award with the court administrator. Since this was not done, MARTA was entitled to judgment.

Decided October 31, 1990.

Price & Conoscienti, Teddy Ray Price, for appellant.

Melinda K. Wells, for appellee.

Tippins does not support appellant’s premise that “substantial compliance” is sufficient. In Tippins, as here, the demand for jury trial and from the arbitration was received one day after expiration of the 30-day period. This Court found no abuse of the trial court’s discretion in refusing to extend the time to file the jury demand and no reversible error in the entry of judgment on the arbitration award because of the lack of a timely filed demand. Appellant depends on language in Tippins quoted from Moncrief v. Tara Apts., 162 Ga. App. 695 (293 SE2d 352) (1982), which was an untimely appeal from the grant of summary judgment in a case not arbitrated. It refers to an appellant’s burden of “depositing the notice of appeal with the clerk within the appropriate time frame.” While this principle is applicable to Tippins and the present case regarding the burden on the appealing party to be timely, the quoted language may not be lifted out of context to support the contention that filing with the clerk of court was sufficient to comply with Rule 1000. The issue in Tippins was not whether the demand was filed in the right office.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    A90A0961.
    HENNESSY CADILLAC et al. v. PIPPIN et al.
    (398 SE2d 725)
   Beasley, Judge.

Defendants James Ballew and Hennessy Cadillac were permitted direct review of the denial of their motion for leave to file a third-party complaint. The question is whether it was barred by the family immunity doctrine.

On February 19, 1988, 12-year-old Sarah Pippin was a passenger in a car driven by her then 16-year-old brother, Bill Pippin. Sarah was killed when their vehicle collided with one driven by defendant Ballew, an employee of Hennessy Cadillac. Both children lived at their parents’ home.

On May 19, 1989, Sarah’s parents sued Ballew and Hennessy Cadillac for their daughter’s wrongful death, seeking the full value of her life and loss of services. On August 10, defendants sought leave to file a third-party complaint against Bill Pippin on the grounds that if Ballew were held negligent, Bill Pippin was a joint tortfeasor whose negligence contributed to the death, entitling defendants to indemnification and contribution. In denying the motion, the court concluded that defendants cannot do indirectly what the parents cannot do directly, that is, sue their son for the death of their daughter. See Eschen v. Roney, 127 Ga. App. 719 (194 SE2d 589) (1972).

To determine the applicability of family immunity, the court looks to “the status of the relationship at the filing of the suit and thereafter” and not to the time of the tort. Clabough v. Rachwal, 176 Ga. App. 212, 214 (335 SE2d 648) (1985). Timing is crucial because actions between parents and children who have reached majority are not barred. Stepho v. Allstate Ins. Co., 191 Ga. App. 494, 495 (382 SE2d 154) (1989); Hollingsworth v. Hollingsworth, 165 Ga. App. 319 (301 SE2d 56) (1983).

Bill Pippin was a minor at the time of the tort, the filing of the action, the motion for leave to file a third-party complaint, the entry of the order denying same, and the application for interlocutory appeal. He reached majority on November 22, 1989, before this court granted the application for appeal.

Once he became 18 and sui juris, Bill Pippin had no family immunity protection even if he lived at home. Arnold v. Arnold, 189 Ga. App. 101 (375 SE2d 225) (1988); Reese v. Reese, 142 Ga. App. 243, 247 (4) (236 SE2d 20) (1977). If they chose, the parents could have amended their complaint to add Bill Pippin as a party defendant under OCGA § 9-11-21, before the expiration of the statute of limitation. OCGA § 9-11-15; Clover Realty Co v. Todd, 237 Ga. 821 (229 SE2d 649) (1976); Humble Oil &c. Co. v. Fulcher, 128 Ga. App. 606, 609 (3) (197 SE2d 416) (1973). When the requirements of OCGA § 9-11-15 (c) are met, even the running of the statute of limitation does not control. Of course, amendment after judgment is not permitted. Christopher v. McGehee, 124 Ga. App. 310 (183 SE2d 624) (1971), aff’d 228 Ga. 466 (186 SE2d 97) (1971); Summer-Minter & Assoc. v. Giordano, 231 Ga. 601 (203 SE2d 173) (1974).

The test is whether the unemancipated minor has reached majority by the time of the filing of the suit “and thereafter.” Arnold, supra, eliminated family immunity where the minor became sui juris after the suit was filed but before the trial and before the trial court granted summary judgment. In Bennett v. Bennett, 194 Ga. App. 197, 199 (390 SE2d 276) (1990), this court determined that the family immunity doctrine applied to a guardian of a grandchild who was a minor at the time of the guardianship appointment, and the guardian was in loco parentis at the time the trial court ruled on a motion for summary judgment. No question existed as to the minor reaching majority at any pertinent time in that case.

The hard question is, how far does “and thereafter” extend?

A third-party complaint may be brought against one who is or may be liable to the defendant/third-party plaintiff. OCGA § 9-11-14. This section does not authorize defendant to seek affirmative relief solely on his own behalf. Thigpen v. Koch, 126 Ga. App. 182 (190 SE2d 117) (1972). Instead, the complaint must be predicated on secondary or derivative liability, such as indemnity, subrogation or contribution. Smith, Kline & French Labs v. Just, 126 Ga. App. 643 (191 SE2d 632) (1972). The third-party action for contribution may be maintained even though the right to contribution does not accrue until after judgment or disposition through compromise and settlement. Evans v. Lukas, 140 Ga. App. 182 (230 SE2d 136) (1976).

Decided October 11, 1990

Rehearing denied November 1, 1990.

Neely & Player, Michael R. Johnson, Linda B. Foster, for appellants.

Everette L. Doffermyre, Jr., Robert J. Hunter, for appellees.

Because the right to contribution does not accrue until after judgment and the parents of Bill Pippin could have brought action against him after his majority, “and thereafter” must encompass the instant timeframe. The objection noted in Eschen, supra, of doing indirectly what could not be done directly does not exist. Bill Pippin has reached majority prior to judgment and within the statute of limitation. There is no impediment to his being brought in for purposes of contribution as a joint tortfeasor.

Judgment reversed.

Deen, P. J., and Pope, J., concur.


author: Beasley, Judge. Deen, Presiding Judge,

text:
    A90A1368.
    SCHREMBS v. ATLANTA CLASSIC CARS, INC.
    (398 SE2d 712)
   Beasley, Judge.

Atlanta Classic Cars, Inc., sued Tamara Schrembs when a check Schrembs had tendered as payment for a car was returned due to insufficient funds. On June 26, 1989, appellee filed a motion to compel an answer to an interrogatory, asking for her social security number. Defendant had not sought a protective order after receiving the interrogatory but instead objected to it. The motion did not jog a response giving the information even though nearly eight months elapsed before the court, in February, heard argument from both sides and ordered defendant to answer within 30 days. She filed no objection to the order, did not seek to appeal it, and did not ask the court to reconsider it. She just failed to comply.

Because of this silence, a motion for sanctions, explicitly seeking the striking of the answer and counterclaim, was filed and served. Still, there was no compliance with the order and no response to the motion. On March 19 the trial court entered the order imposing those sanctions. Schrembs complains that this was done without a hearing.

The court’s order granting the relief sought, based on noncompliance with the court order, all of which defendant had notice of, is upheld. Defendant had already had opportunity to justify not answering the interrogatory and failed to convince the trial judge. The interminable discovery procedures which bog down final resolution, wear out parties’ patience and pocketbooks, and consume inordinate amounts of severely limited court resources, would be exacerbated without justification if further hearing were required in these circumstances.

If there is a good excuse for not complying with the court order, the burden should be on defendant to move for setting aside the dismissal and to show simultaneously, under oath, the reason for her total non-compliance with the order. The burden should not be on the party seeking legitimate discovery backed up by a court order, or on the court, to provide yet another hearing before dismissal.

The authority for the dismissal existing in OCGA § 9-11-37 (b) (2) (C) is confirmed in Thornton v. Burson, 151 Ga. App. 456 (260 SE2d 388) (1979), and Brunswick Mfg. Co. v. Sizemore, 176 Ga. App. 838 (338 SE2d 288) (1988). The two-step procedure was followed here. If wilfulness is prerequisite, it is amply supplied, considering the circumstances and the nature of the interrogatory. One of the compelling factors is that defendant had had ten months to answer the sole and straightforward interrogatory calling for a simple answer. This period is demonstrative. Smith v. Nat. Bank of Ga., 182 Ga. App. 55, 57 (2) (354 SE2d 678) (1987).

What is more, as said in Thornton, supra at 459, “after the entry of the order . . . granting appellee’s motion to compel, a total failure of appellant to respond to that order within the time limitation set forth would clearly have justified entry of default judgment against [the defendant]. [Cit.]”

Judgment affirmed.

Carley, C. J., Banke, P. J., Birdsong, Sognier, Pope and Cooper, JJ., concur. Deen, P. J., and McMurray, P. J., dissent.

Deen, Presiding Judge,

dissenting.

Considering very similar procedural circumstances, this court has previously held that imposition of the harsh sanction of dismissal of a complaint or answer pursuant to OCGA § 9-11-37 is error, where no opportunity to explain the failure to comply is afforded. Lewis v. Foster, 186 Ga. App. 819 (368 SE2d 575) (1988); Serwitz v. Gen. Elec. Credit Corp., 174 Ga. App. 747 (331 SE2d 95) (1985); Harwood v. Great American Mgmt. &c., 164 Ga. App. 703 (298 SE2d 263) (1982). These cases not having been overruled, they should still be controlling in this situation. The imposition of sanctions was therefore error, and I would respectfully dissent from the majority opinion.

Decided October 3, 1990

Rehearing denied November 1, 1990

C. Alan Mullinax, for appellant.

John A. Swann, for appellee.

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


text:
    A90A1470.
    ROWE et al. v. STEVE ALLEN & ASSOCIATES, INC.
    (398 SE2d 717)
   Banke, Presiding Judge.

The appellants purchased a residential lot from the appellee developer on which they later constructed a home. They filed this action against the appellee and against their builder, seeking to recover for settlement damage to the home which occurred because a portion of the foundation was built over a landfill pit consisting of buried stumps, limbs, trash and construction debris. They voluntarily dismissed the claim against the builder just prior to trial, and a jury thereafter returned a verdict in favor of the appellee. In this appeal from the denial of their motion for new trial, they contend that the trial court erred in denying their request for a jury charge which would have permitted them to recover on the theory of nuisance in addition to the fraudulent concealment theory of recovery set forth in the complaint. See generally OCGA § 41-1-1.

The appellants purchased the lot from the appellee in the summer of 1981. Construction of the home was commenced in the summer of 1983 and was substantially completed by March of 1984. The appellants first began to notice cracking and other signs of settlement in 1986 and learned of the existence of the landfill pit late in 1987, after hiring an engineer to determine the source of the problem. They filed the present action on February 1,1988, alleging that the appellee had fraudulently concealed the existence of the pit from them when they purchased the property and, by creating it, had engaged in “inherently dangerous and illegal activity which violated standards and practices of the building and construction industry.” Their claim against the builder, which, as previously indicated, they voluntarily dismissed just prior to trial, was based on allegations that he had “contributed to the problem created by [the appellee] by further digging and dumping trash in the hole and in failing to recognize the apparent problem. . . .” Held:

Decided October 9, 1990

Rehearing denied November 1, 1990

William R. Hurst, for appellants.

Chestnut & Livingston, Tom Pye, for appellee.

“ ‘Where the original nuisance to land is of a permanent character, so that the damages inflicted thereby are permanent, a recovery not only may, but must, be had for the entire damages, in one action; and such damages accrue from the time the nuisance is created, and from that time the statute of limitations begins to run. In the case of nuisances which are transient rather than permanent in their character, the continuance of the injurious acts is considered a new nuisance, for which a fresh action will lie; and although the original cause of action is barred, damages may be recovered for the continuance of the nuisance.’ [Cit.]” City Council of Augusta v. Lombard, 101 Ga. 724, 727 (28 SE 994) (1897).

The appellee obviously cannot be deemed to have maintained, controlled or continued the alleged nuisance created by the landfill pit subsequent to the appellants’ purchase of the property in 1981. Compare City of Columbus v. Myszka, 246 Ga. 571, 572 (2) (272 SE2d 302) (1980); Cox v. Cambridge Square Towne Houses, 239 Ga. 127 (236 SE2d 73) (1977); Citizens & Southern Trust Co. v. Phillips Petroleum Co., 192 Ga. App. 499 (2) (385 SE2d 426) (1989). Therefore, assuming arguendo that the appellants at one time had a cause of action against him based on nuisance, the four-year limitation period applicable to actions for damage to real estate had long since expired on that cause of action by the time the present suit was filed in 1988. See OCGA § 9-3-30. It follows that the trial court did not err in refusing to charge on nuisance.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1484.
    VINEYARD v. FOWLER et al.
    (398 SE2d 709)
   Banke, Presiding Judge.

The appellant filed this action against the appellees, Georgia Hi-Lift Corporation and Steve Fowler, to recover for injuries he had allegedly sustained when a MARTA bus he was driving was struck by a tractor-trailer owned by Georgia Hi-Lift and being driven by Fowler. Previously, the appellant, the appellees, and MARTA had all been named as co-defendants in separate suits filed by two bus passengers to recover for injuries they had sustained in the accident. The appellant and MARTA, who were represented in those actions by the same counsel, filed cross-claims against the appellees seeking indemnification and contribution for any recovery the passengers might obtain against them. That litigation was subsequently settled, resulting in the voluntary dismissal with prejudice of all the claims asserted therein, including the appellant’s cross-claims against the appellees for indemnification and contribution. Based on those dismissals, the trial court granted summary judgment to the appellees in the present action on the theory that the appellant’s claims were barred by the doctrine of res judicata, as set forth in OCGA § 9-12-40. This appeal followed. Held:

OCGA § 9-12-40 provides as follows: “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.”

It has been held that a voluntary.dismissal with prejudice, involving no judicial action, does not constitute a “judgment of a court” so as to have res judicata effect pursuant to this Code section. See Market Ins. Corp. v. IHM, Inc., 192 Ga. App. 441, 442 (2) (385 SE2d 307) (1989). See also World Mut. &c. Ins. Co. v. Thurmond, 112 Ga. App. 393 (1) (145 SE2d 252) (1965). Moreover, it is well established that, in order for a prior judgment to . have res judicata effect in subsequent litigation between the same parties, the prior action must have involved the same cause of action. See Winters v. Pund, 179 Ga. App. 349, 352 (346 SE2d 124) (1986); Lewis v. Price, 104 Ga. App. 473 (1), 474-5 (122 SE2d 129) (1961).

The cross-claims for indemnification and contribution previously filed against the appellees by the appellant clearly did not involve the same cause of action as is being asserted by the appellant in the present case, for the appellant did not seek in the earlier litigation to recover for his own injuries sustained as a result of the collision. While the appellant certainly could have asserted the present cause of action by cross-claim in either of the suits filed by the bus passengers, his disinclination to do so is quite understandable, for he was being defended by MARTA’s counsel in those actions and to have sought recovery against the appellees for his own injuries in the context of those proceedings would undoubtedly have complicated the task of presenting the claim to a jury, perhaps diminishing his chances for recovery. We do not believe the law required him to pursue his personal injury claim in this manner.

Based on the language of OCGA § 9-11-13 (g), it has been held that “[a] cross claim is not compulsory, but is permissive.” Reeves Transp. Co. v. Gamble, 126 Ga. App. 165, 167 (190 SE2d 98) (1972). We believe that rule continues to be viable, although we recognize that the Supreme Court’s decision in Citizens Exchange Bank of Pearson v. Kirkland, 256 Ga. 71, 72 (344 SE2d 409) (1986), could, perhaps, be interpreted as having altered it. 'J’hat case involved a suit by an executrix against a bank to recover for the loss of a certificate of deposit which had been paid to the decedent’s widow rather than to the estate. The widow had previously sued both the executrix and the bank seeking a judicial declaration that she was entitled to the funds, and a default judgment to that effect had been entered in the action based on the executrix’s failure to answer and on the bank’s representation to the court that it was a “neutral party.” The Supreme Court held that this judgment constituted a bar to the executrix’s subsequent suit against the bank, using language which implied that her claim against the bank should have been raised as a cross-claim in the declaratory judgment action. However, the executrix’s claim against the bank clearly was predicated on a contention that the estate rather than the widow had been legally entitled to the proceeds of the CD, and it was precisely this point which had been resolved adversely to the estate in the declaratory judgment proceeding. Thus, the executrix’s claim against the bank was, in actuality, barred not so much by her failure to file a cross-claim in the prior action as by her failure to file an answer in that action.

“[I]n modern legal practice, the central issue in determining whether the doctrines of res judicata and collateral estoppel apply is whether the party against whom the plea is raised has had full opportunity to litigate the issues. [Cits.]” Winters v. Pund, supra at 352. Cf. OCGA § 9-12-42; Delta Air Lines v. Woods, 137 Ga. App. 693, 695 (224 SE2d 763) (1976); A. R. Hudson Realty v. Hood, 151 Ga. App. 778, 779 (262 SE2d 189) (1979). As the appellant has not previously sought to recover from the appellees for the personal injuries which he allegedly sustained in the accident, and as we do not believe he forfeited his right to do so by failing to assert this cause of action as a cross-claim in either of the personal injury suits filed by the bus passengers, we hold that the trial court erred in granting summary judgment to the appellees on res judicata grounds.

Judgment reversed.

Birdsong and Cooper, JJ., concur.

On Motion for Rehearing.

The appellees argue on motion for rehearing that our decision in the present case is in conflict with the Supreme Court’s decision in Taylor v. Bennett, 260 Ga. 20 (389 SE2d 242) (1990), holding that a suit for an accounting brought by a former ward against her former guardians was “barred by res judicata” where a prior superior court action between the parties involving the same issues had been dismissed with prejudice following a settlement. However, the plaintiff in that case had also filed a prior action for an accounting in probate court, and that action had proceeded to a judgment in favor of the former guardians approving an accounting previously made by them. Thus, the Supreme Court clearly was not holding in Taylor v. Bennett that the voluntary dismissal of the earlier superior court action constituted a “judgment of a court of competent jurisdiction” within the contemplation of OCGA § 9-12-40. Rather, it was the prior judgment entered by the probate court which brought that Code section into play.

Decided September 27, 1990

Rehearing denied November 1, 1990

Billington & Associates, Barry E. Billington, for appellant.

Drew, Eckl & Farnham, Julia B. Anderson, Stevan A. Miller, Frederick A. Johnson, for appellees.

We wish to emphasize that we have not held in the present case, and do not intend to imply, that a claim which has previously been dismissed with prejudice may be reasserted in a subsequent action. Obviously, it cannot — that is, after all, what the term, “with prejudice,” means. “A dismissal with prejudice operates as an adjudication on the merits. It is a final disposition. It bars the right to bring another action on the same claim or cause. [Cit.] However, it is not, in truth, a determination of the issues in the case. It merely functions as, or operates as, an adjudication of those issues without an actual presentation of and decision on them.” Marchman & Sons v. Nelson, 251 Ga. 475, 477 (306 SE2d 290) (1983). (Emphasis from original.)

The appellant in the present case clearly is not attempting to re-litigate the same claims against the appellees which he previously dismissed with prejudice, nor is he seeking to avoid the effect of a prior adjudication simply by asserting a different legal basis for the same type of recovery or by requesting a different remedy for the same alleged wrong. Compare McCracken v. City of College Park, 259 Ga. 490 (384 SE2d 648) (1989). The indemnification claims which the appellant asserted against the appellees in the prior actions brought by the two bus passengers did not concern his own injuries but rather his liability, viz a viz the appellees, for the injuries sustained by the passengers. Our holding that the doctrine of res judicata is inapplicable under these circumstances does not rest merely on the fact that no judgment was entered in those two suits; it rests independently on the fact that neither of them involved the same cause of action being asserted in the present case.

The motion for rehearing is denied.