text:
    A91A1041.
    ADC CONSTRUCTION COMPANY v. HALL.
    (413 SE2d 522)
   Carley, Presiding Judge.

Appellee-plaintiff brought suit to recover on a commercial account and, pursuant to OCGA § 7-4-16, sought pre-judgment interest on the unpaid balance at the rate of I-V2 percent per month. A jury-trial resulted in a verdict in favor of appellee. The judgment that was entered on the jury’s verdict contained no specific provision with regard to the rate at which post-judgment interest would accrue. In satisfaction of the judgment, appellant-defendant offered appellee an amount which, pursuant to OCGA § 7-4-12, reflected a post-judgment interest rate of 12 percent per year. Appellee refused appellant’s tender and filed a “Motion For Issuance of Fi.Fa. Earning Interest At [The] Specified Rate” of I-V2 percent per month. The trial court granted appellee’s motion and appellant appeals. See Nodvin v. West, 197 Ga. App. 92, 93 (1) (397 SE2d 581) (1990).

OCGA § 7-4-12 provides, in relevant part, that “[a]ll judgments in this state shall bear interest upon the principal amount recovered at the rate of 12 percent per year unless the judgment is rendered on a written contract or obligation providing for interest at a specified rate, in which case the judgment shall bear interest at the rate specified in such contract or obligation. . . .” (Emphasis supplied.) Appellee contends and the trial court found that, pursuant to OCGA § 7-4-16, a commercial account constitutes an “obligation” which provides for interest at a statutorily specified rate. However, this is an erroneous construction of OCGA § 7-4-16. “[T]he statute says merely that the commercial creditor may charge interest if the account is 30 days overdue at a rate not in excess of I-V2 % per month. Thus . . . , the creditor has an option to set whatever interest rate he wishes after default up to the limit specified. . . . [OCGA § 7-4-16 is properly construed] as permitting the creditor to charge an otherwise usurious rate of interest. . . .” (Emphasis in original.) Prince v. Lee Roofing Co., 161 Ga. App. 181, 183 (3) (288 SE2d 135) (1982). Compare Chilivis v. Rogers Oil Co., 135 Ga. App. 176, 177 (3) (217 SE2d 179) (1975) (construing the statutory specification of a definite pre-judgment interest rate in OCGA § 48-2-35 as mandating the equivalent post-judgment interest rate). It is the owner of the commercial account, acting unilaterally pursuant to the discretion granted him by OCGA § 7-4-16, and not any provision of OCGA § 7-4-16 itself, which controls both the recovery of pre-judgment interest and the rate thereof. Accordingly, a commercial account is not, by virtue of OCGA § 7-4-16, transformed into such an “obligation” as would come within the exception to the standard post-judgment interest rate of 12 percent per year that is established by OCGA § 7-4-12.

Decided December 2, 1991.

Richard A. Gordon, for appellant.

L. A. Paulk, Ainsworth G. Dudley, Jr., for appellee.

“[W]e [are] bound by the explicit ‘all’ and the mandatory word ‘shall’ in [OCGA § 7-4-12]. . . .” Henley v. Mabry, 125 Ga. App. 293, 295 (187 SE2d 309) (1972). Once the unpaid balance of a commercial account has been reduced to judgment, the account owner assumes the new capacity of a judgment creditor. In that new capacity, he is authorized, pursuant to OCGA § 7-4-12, to recover post-judgment interest at the standard rate of 12 percent per year, regardless of whether, in the exercise of the discretion granted to him in his former capacity as an account owner, he had sought no pre-judgment interest or pre-judgment interest at some rate within the maximum limit authorized by OCGA § 7-4-16. The trial court erred in holding otherwise. OCGA § 7-4-16 does not authorize appellee to recover both prejudgment and post-judgment interest at the same rate. That statute would only permit appellee to recover pre-judgment interest at a rate which is “greater than the post-judgment rate” of 12 percent per year that “all judgments in this state shall bear” pursuant to OCGA § 7-4-12. (Emphasis supplied.) Prince v. Lee Roofing Co., supra at 183 (3).

Judgment reversed.

Beasley, J., and Judge Arnold Shulman, concur.


source: Caselaw Access Project

author: Judge Arnold Shulman.

license: Public Domain

text:
    A91A1099.
    A91A1740.
    A91A1741.
    MICHAEL v. ACREE et al. MICHAEL v. KITCHINGS et al. TOPA INSURANCE COMPANY v. MICHAEL et al.
    (413 SE2d 523)
   Judge Arnold Shulman.

While apparently driving in the wrong direction on Interstate Highway 75 in Clayton County, appellant Melanie Michael collided with two automobiles, one occupied by appellee Pamela Kitchings and the other by appellees Shirley and Chris Aeree. As a result of these collisions, Mrs. Kitchings and her husband and the Aerees and their husbands filed separate personal injury actions against Ms. Michael.

Ms. Michael was insured at the time of the accident under a policy of motor vehicle liability insurance issued by Atlanta Casualty Company providing coverage in the amount of $15,000 per injured person and $30,000 per occurrence. In addition, appellant Topa Insurance Company had issued an “Automobile Excess Liability Policy” to Ms. Michael’s husband, John Clement, proving supplemental coverage in the amount of $85,000 per person and $270,000 per occurrence. Atlanta Casualty retained counsel to represent Ms. Michael in the two personal injury actions and tendered the limits of its coverage to be distributed among the plaintiffs.

While the two personal injury actions were pending, the plaintiffs’ attorneys engaged in settlement negotiations with Bill Davies, an adjuster employed by Topa. On August 24, 1990, plaintiffs’ counsel John D’Orazio informed Michael’s counsel, Jeanne Johnson, that he had reached a settlement with Davies whereby the Aerees were to receive a total of $120,000 and the Kitchings a total of $100,000 in satisfaction of their claims. After telephoning Davies to verify this information, Ms. Johnson sent letters to the plaintiffs’ attorneys confirming the terms of the settlement agreement and indicating her understanding that the plaintiffs would accept the agreed upon sums “in full and final settlement of any and all claims against Melanie Michael and her insurers.” She also wrote to Davies acknowledging her acceptance of the terms of the agreement.

Topa thereafter refused to honor the settlement, prompting the plaintiffs to file motions in each of the present actions seeking to enforce it against Michael. Michael responded by asserting a third-party claim for indemnification against Topa in each of the actions; and in the Kitchings case, she and Topa filed cross motions for summary judgment on that claim. The trial court subsequently granted the plaintiffs’ motions to enforce the settlement agreement and entered judgment against Michael accordingly in each of the two personal injury actions. Case Nos. A91A1099 and A91A1740 are appeals by Michael from those judgments. In the Kitchings case, the court also granted the motion for summary judgment which Michael had filed against Topa, and Case No. A91A1741 is Topa’s appeal from that ruling.

1. Michael contends that under this court’s decision in Klag v. Home Ins. Co., 116 Ga. App. 678 (158 SE2d 444) (1967), her attorney’s acceptance of the settlement agreement which the plaintiffs’ attorneys had reached with Topa did not operate to bind her personally to Topa’s obligations thereunder, but rather effected a novation pursuant to which her tort liability was to be discharged in return for Topa’s payment of the agreed upon sums. We agree. It was held in Klag that a settlement agreement between an automobile liability insurance carrier and a party injured by the alleged negligent operation of the insured automobile did not constitute a contract by the insurer to answer for the debt, default, or miscarriage of another within the contemplation of the Statute of Frauds, see OCGA § 13-5-30 (2), but was an “original undertaking” whereby “the insurer agrees to settle its [own] potential liability as well as the potential liability of the insured. . . .” Id. at 688. The court went on to state that if such a settlement were made with the concurrence of the insured, it would effect a legal novation whereby the promise of the insurer was substituted for the obligation of the insured, and that if made without the assent of the insured, it would effect an equitable novation “ ‘since a creditor who had agreed to the substitution would not be allowed by equity to enforce his claim against the original debtor. . . .’ ” Id. at 689.

Decided December 2, 1991.

Bentley, Karesh & Seacrest, Gary L. Seacrest, Jeanne F. Johnson, for Michael.

Finch, McCranie, Brown & Thrash, Charles E. McCranie, John S. D’Orazio, for Aeree and Kitchings.

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Todd M. Yates, for Topa.

Fain, Major & Wiley, Donald M. Fain, Darryl G. Haynes, for Allstate.

During the proceedings in the Kitchings suit, Michael’s attorney, Ms. Johnson, asserted without contravention in open court that plaintiffs’ counsel were aware that she had been retained by Atlanta Casualty and that she had no authority to offer any amount in settlement of the case in excess of the $30,000 limits of that company’s coverage. She further stated without contravention that Michael “had nothing to do with the . . . agreement [between the plaintiffs and Topa] except through her counsel, who was myself, confirming [it]. ...” Quite clearly, none of the parties contemplated that Michael was contracting to pay the agreed upon sums from her own personal assets, either as a joint obligor with Topa or as a guarantor of its promise to pay. Accordingly, based on the principles set forth in Klag, supra, we hold that the trial court erred in entering judgment against her for Topa’s portion of the settlement. Cf. Cox v. Travelers Ins. Co., 228 Ga. 498 (186 SE2d 748) (1972); Goolsby v. Allstate Ins. Co., 130 Ga. App. 881, 884 (204 SE2d 789) (1974).

2. It necessarily follows from the foregoing that the trial court further erred in awarding summary judgment to Michael on her third-party claim against Topa for indemnification. In so ruling, we do not address the issue of Topa’s liability to the appellee-plaintiffs for breach of the settlement agreement, inasmuch as that issue is not currently before us.

Judgments reversed.

Carley, P. J., and Beasley, J., concur.


text:
    A91A1151.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. LORENZ.
    (413 SE2d 782)
   Judge Arnold Shulman.

The appellee brought this action seeking to recover uninsured motorist benefits allegedly owed her under two policies of motor vehicle accident insurance issued to her by the appellant insurer. Alleging that she had previously been “forced” to file a declaratory judgment action against the appellant to establish her right to “stack” the coverage provided by these two policies and further alleging that, although she had obtained a favorable ruling in the declaratory judgment action, the appellant had continued to refuse to pay the claim, the appellee additionally sought to recover a bad-faith penalty and attorney fees. The case is before us on appeal from an order granting summary judgment to the appellee and, by implication, denying a motion for summary judgment filed by the appellant.

The appellee was injured on September 13, 1986, when her automobile was struck by a vehicle being driven by Ms. Mercedes Soto, who had $15,000 in motor vehicle liability insurance coverage. The appellee thereafter entered into a settlement agreement with Soto’s insurance carrier pursuant to which she was paid $14,500 in return for a complete release of all further claims against Soto arising from the accident. Contending that her damages in fact greatly exceeded the limits of Soto’s liability coverage, the appellee thereafter made a demand for benefits under the uninsured motorist provisions of the two policies issued to her by the appellant, each of which provided such coverage in the amount of $15,000. In the prior declaratory judgment action, the court rejected a contention by the appellant that, under OCGA § 33-7-11 (d), the appellee was required “to proceed to judgment against Ms. Soto to be entitled to ‘stack’ the policies. . . .’’In addition, the court ruled that the release which the appellee had executed in connection with her settlement with Soto’s insurer did not bar her from recovering these benefits.

The appellant continues to assert in the present action that the appellee is required by OCGA § 33-7-11 (d) to obtain a judgment against Soto as a condition precedent to recovering uninsured motorist benefits, while the appellee asserts that this issue was resolved in her favor in the declaratory judgment action and is therefore res judicata. Apparently rejecting the appellee’s contention that the issue was res judicata, the trial judge reached the merits of this defense but nevertheless ruled in the appellee’s favor, stating: “Pursuant to the laws of Georgia an insurer is required to pay a valid claim within sixty (60) days of its being made, and a valid claim may be made months and years before the plaintiff obtains a judgment against an uninsured motorist. Lewis v. Cherokee Ins. Co., 258 Ga. 839 [375 SE2d 850] (1989). Defendant has not contested the merits nor the validity of plaintiff’s claim.”

1. The statutory authority under which a bad-faith penalty and attorney fees may be assessed against a motor vehicle accident insurer based on its refusal to pay a valid claim for uninsured motorist benefits is OCGA § 33-7-11 (j), which provides, in pertinent part, as follows: “If the insurer shall refuse to pay any insured any loss covered by this Code section within 60 days after a demand has been made by the insured and a finding has been made that such refusal was made in bad faith, the insurer shall be liable to the insured in addition to any recovery under this Code section for not more than 25 percent of the recovery and all reasonable attorney’s fees for the prosecution of the case under this Code section. The question of bad faith, the amount of the penalty, if any, and the reasonable attorney’s fees, if any, shall be determined in a separate action filed by the insured against the insurer after a judgment has been rendered against the uninsured motorist in the original tort action. . . .” (Emphasis supplied.)

The issue addressed by the Supreme Court in Lewis v. Cherokee Ins. Co., supra, was whether an insured could make a valid demand for payment of uninsured motorist benefits within the contemplation of OCGA § 33-7-11 (j), so as to start the running of the 60-day period, without first obtaining a judgment against the uninsured motorist. The Supreme Court answered this question in the affirmative, stating: “It is clear that a plaintiff must obtain a judgment against the uninsured motorist before filing suit against an insurer for the bad-faith penalty and attorney fees. However, it does not follow that a judgment against the uninsured motorist is a prerequisite for a demand against an insurer under this section.” Id., 258 Ga. at 840. It is thus clear that the Supreme Court did not intend in Lewis to change the long-established rule that “ ‘[i]t is a condition precedent to an action against an automobile liability insurance carrier to recover under the provisions of [OCGA § 33-7-11] on account of injuries and damages to the plaintiff resulting from the negligence of a known uninsured motorist, that suit shall have been brought and judgment recovered against the uninsured motorist.’ [Cits.]” Peagler & Manley Ins. Agency v. Studebaker, 156 Ga. App. 786 (275 SE2d 385) (1980).

2. The only issues adjudicated in the prior declaratory judgment action were whether the appellee was entitled to “stack” the uninsured motorist benefits provided by her policies and whether the release which she had executed in connection with her settlement with Soto’s insurer precluded her from recovering such benefits. These issues went only to the validity of the appellee’s demand for such benefits, and the court was not called upon in that action to determine whether the appellee could recover a judgment against the appellant for such benefits without first obtaining a judgment against the uninsured motorist. We accordingly reject, as apparently did the trial court in the present case, the appellee’s contention that this issue was res judicata; and we hold that the trial court erred in granting the appellee’s motion for summary judgment.

Decided December 2, 1991.

Cooper & Allen, Gary M. Cooper, James C. Williford, for appellant.

Hill R. Jordan, for appellee.

3. The appellant contends that the trial court further erred in denying its motion for summary judgment. Because it is apparent without dispute that the appellee is now barred by the applicable statute of limitation from maintaining an action against Ms. Soto to recover for the injuries which she allegedly sustained in the accident, see generally OCGA § 9-3-33, we agree that the appellant’s motion for summary judgment should have been granted.

Judgment reversed.

Carley, P. J., and Beasley, J., concur.


text:
    A90A2279.
    NOLAND v. THE STATE.
    (413 SE2d 509)
   Judge Arnold Shulman.

The appellant was convicted of failing to stop at or return to the scene of an accident, driving under the influence of alcohol, and operating a motor vehicle after having been declared an habitual violator. In this appeal from the denial of his motion for new trial, he contends that he was denied effective assistance of counsel due, among other things, to the failure of his counsel to challenge the constitutionality of OCGA § 40-6-270 (b), which, as it existed at the time of the accident at issue in this case, made the failure to stop at or return to the scene of an accident a felony “[i]f such accident is the proximate cause of death or a serious injury as defined in Code Section 33-34-2. . . .” (The statute was amended by Ga. L. 1991, p. 1608, § 2.1, to delete the reference to OCGA § 33-34-2.) Because this contention appeared to us to draw into question the constitutionality of the statute, we transferred the case to the Georgia Supreme Court. However, by order dated April 4, 1991, that Court returned the case to us for the stated reason that “the constitutionality of OCGA § 40-6-270 (b) was not directly presented to or decided by the trial court and is merely ancillary and hypothetical in the context of this appeal. ...”

While working in a supermarket parking lot, a store clerk observed a pick-up truck strike a grocery cart in which an 11-month-old infant was seated, causing the child to be thrown to the pavement. Although the driver of the truck failed to stop, the clerk was able to observe him at close range and to note the license tag number of the vehicle, which proved to be registered to the appellant. Within an hour of the accident, the truck was located, with its engine idling and the appellant seated in the driver’s seat in an apparent state of inebriation. He was arrested and brought to the police station, where the store clerk identified him as the driver of the truck involved in the hit-and-run accident. The appellant stipulated at trial that the child’s “medical expenses in the . . . case totalled] $1,045.00,” and that the child had “thereby incurred ‘serious injury’ according to OCGA § 40-6-270 (b) and OCGA § 33-34-2.”

1. The appellant contends that his trial counsel should have challenged the constitutionality of the version of OCGA § 40-6-270 (b) under which he was convicted on the ground that, by permitting the offense of leaving the scene to be elevated to a felony based solely on the amount of medical expenses subsequently incurred by the victim, it violated due process requirements of definiteness and certainty. While this contention would appear on its face to have at least colorable merit, we are unable to address it, inasmuch as this court is without jurisdiction to adjudicate the constitutionality of a statute. See Ga. Const, of 1983, Art. VI, Sec. VI, Par. II (1).

2. The appellant further contends that his trial counsel rendered ineffective assistance by advising him to stipulate that the child had incurred a “serious injury” within the contemplation of the statute, by failing to present certain evidence in support of his defense that it was his brother rather than he who had been operating the truck at the time of the accident, and by failing to obtain a transcript of his preliminary hearing with which to impeach certain testimony offered by the investigating officer at trial to the effect that the store clerk who witnessed the accident had never told him (the officer) that the driver of the truck was wearing glasses. The appellant did not testify at trial. However, at the hearing on the motion for new trial, he maintained that he was so inebriated at the time of the accident that he could not say whether he was driving or not.

“To establish that there has been actual ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced the defense. In order to prove the defense has been prejudiced, defendant must show there is a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional deficiencies.” Baggett v. State, 257 Ga. 735 (363 SE2d 257) (1988). The appellant’s trial counsel indicated at the hearing on the motion for new trial that his decision to advise the appellant to stipulate to the amount of medical expenses incurred by the victim was a tactical one, designed to prevent the jury from hearing testimony concerning the child’s actual injuries. It has repeatedly been held that such tactical decisions do not equate with ineffective assistance of counsel. See Hosch v. State, 185 Ga. App. 71 (2), 72 (363 SE2d 258) (1987), and cases cited therein. With respect to the appellant’s other contentions, suffice it to say that based on our review of the transcript, we conclude that there is no reasonable probability that any of the alleged deficiencies in question had any effect on the outcome of the trial. Therefore, assuming the constitutionality of OCGA § 40-6-270 (b), we hold that the trial judge did not err in denying the appellant’s motion for new trial. Accord Stamey v. State, 194 Ga. App. 305 (1) (390 SE2d 409) (1990).

Decided November 22, 1991

Reconsideration denied December 3, 1991

Sexton, Moody & Renehan, Lee Sexton, for appellant.

Thomas C. Lawler III, District Attorney, David K. Keeton, Debra K. Turner, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley, P. J., concurs. Beasley, J., concurs in Division 2 and in the judgment.


author: Sognier, Chief Judge.

text:
    A91A0821.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. BREWER.
    (413 SE2d 770)
   Sognier, Chief Judge.

C. J. Brewer filed suit against Georgia Farm Bureau Mutual Insurance Company to recover fire insurance proceeds for the destruction of a house. The parties filed cross motions for summary judgment, and the trial court granted Brewer’s motion and denied GFBM’s motion. GFBM appeals.

On December 15, 1987, appellee sold a 51 acre tract of land and the residence located on the property to Darrell Northrup and Bonnie Northrup and took back a mortgage in the amount of $91,400. As required by the terms of their deed to secure debt, the Northrups obtained $51,000 in fire insurance for the house from appellant, listing appellee as the insured mortgagee. The Northrups defaulted on their mortgage payments in October 1988, and appellee began foreclosure proceedings. The house was destroyed by fire on April 3, 1989. Appellee then proceeded with foreclosure, and at the May 2 sale he was the high bidder, bidding $96,662, which he has acknowledged was sufficient to cover the outstanding indebtedness plus his fees and expenses. In July, appellee filed a claim of loss under the policy issued by appellant. He did not repair the house, but instead sold the property on November 1, 1989 for $65,000. The trial court ruled that appellee was entitled to recover $31,662 of the insurance proceeds to cover his net loss after the resale, and that the remaining $19,338 of the proceeds should be paid to the Northrups.

The question presented on appeal is whether appellee’s post-fire acquisition of the property in foreclosure for the full amount of the debt extinguished his insurable interest so that he was no longer entitled to the insurance proceeds. This is an issue of first impression in Georgia. Appellant urges us to follow the rule adopted in other jurisdictions, which is that once a mortgagee satisfies the debt by bidding in the full amount at foreclosure, the mortgagee, by voluntarily taking the property in exchange for the debt, extinguishes the debt and thereby terminates any insurable interest in the property. Rosenbaum v. Funcannon, 308 F2d 680 (9th Cir. 1962); Northwestern Nat. Ins. Co. v. Mildenberger, 359 SW2d 380 (Mo. Ct. App. 1962); Whitestone Savings &c. Assn. v. Allstate Ins. Co., 270 NE2d 694 (NY Ct. App. 1971); see Nationwide Mut. Fire Ins. Co. v. Wilborn, 279 S2d 460, 463-464 (Ala. 1973). Similarly, in Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F2d 851, 856 (5th Cir. 1979), a case involving Georgia law, the former Fifth Circuit held that “[w]here a fire loss occurs and a loss-payee is thus vested with rights under the insurance policy, subsequent partial or full extinguishment of the debt giving rise to the insurable interest will reduce the loss-payee’s interest in the proceeds to the extent the debt has been satisfied. [Cits.]” These courts have reasoned that since the purpose of the insurance is to provide security for the payment of the debt, once the debt is fully satisfied any right to the insurance is extinguished. See id.; see also Northwestern Nat., supra at 385.

Notwithstanding this authority from other jurisdictions, after thoroughly reviewing the trial court’s order and applicable Georgia law we are persuaded that the trial court fashioned the proper rule by looking to the actual loss rather than the termination of a legal interest, and accordingly we affirm. Appellee, as a mortgagee, clearly had an insurable interest in the property because he would suffer a pecuniary loss if the property were destroyed by fire. American Reliable Ins. Co. v. Woodward, 143 Ga. App. 652, 653 (1) (239 SE2d 543) (1977); see OCGA § 33-24-4 (a), (c). Under Georgia law, the right of a mortgagee to insurance proceeds is determined at the time of the loss. Pacific Ins. Co. of NY v. R. L. Kimsey Cotton Co., 114 Ga. App. 411, 415-416 (3) (151 SE2d 541) (1966); see OCGA § 33-24-4 (b). Therefore, at the time of the fire appellee was entitled to the proceeds to the extent of his loss. Similarly, if the fire had occurred after the foreclosure, under the terms of the mortgage clause in the policy appellee also would have been entitled to the insurance proceeds. See Federal Nat. Mtg. Assn. v. Hanover Ins. Co., 243 Ga. 609 (255 SE2d 685) (1979).

We reject the theory that because appellee subsequently took the property in foreclosure in exchange for the debt, this entitlement was extinguished. The principle that a bid by a mortgagee of the full amount of the indebtedness extinguishes the mortgage exists to preclude the mortgagee from pursuing the mortgagor for a deficiency once the debt has been satisfied. See generally Nationwide Fin. Corp. of Ga. v. Banks, 147 Ga. App. 73, 75-76 (1) (248 SE2d 54) (1978); Turpin v. North American &c. Corp., 119 Ga. App. 212, 217 (1) (166 SE2d 588) (1969). Once the mortgagee receives satisfaction of the debt, it is not entitled to seek an additional recovery from the mortgagor. See Nationwide Fin. Corp. of Ga. v. Banks, supra at 77 (1). We see no reason for applying that rule to preclude recovery from an insurer, which is contractually obligated to compensate the mortgagee for loss of or damage to the insured property. Here, the elimination of the Northrups’ legal liability to appellee by his bidding in the amount of the debt does not change the fact that appellee nonetheless suffered a direct pecuniary loss as a result of the fire because he previously held a mortgage payable in the amount of $91,400, but in foreclosure exchanged it for property worth only $65,000. Accordingly, we hold appellee was entitled to the insurance proceeds to the extent of his actual net loss — i.e., the difference between the amount he bid in foreclosure and the value of the damaged property, as established here by its resale value. See OCGA § 33-24-4 (c).

This result is consistent with the economic loss analysis set forth by a two-judge plurality in Palmer v. Mitchell County Fed. Sav. &c. Assn., 189 Ga. App. 646 (377 SE2d 4) (1988), which arose under a similar factual setting but with a different procedural posture. The mortgagee foreclosed after a fire by bidding in the amount of the remaining indebtedness and then collected the insurance proceeds of $24,031.07. After repairing the property, the lender sold it for a net loss of $1,784 (the difference between the foreclosure bid plus repair costs and the resale proceeds plus the insurance proceeds). The mortgagors then brought suit against the lender, contending they were entitled to the insurance proceeds. In dicta, the two-judge plurality acknowledged the majority rule that extinguishment of the debt in foreclosure terminates a mortgagee’s interest in the insurance proceeds, citing Whitestone, supra, and Calvert, supra, but did not apply that rule to compel return of the insurance proceeds. Instead, the court reasoned that the lender, rather than the insurance company, could not be liable to the mortgagors for its receipt of the insurance proceeds from the insurance company. The plurality opinion further recognized there was no basis for a claim of unjust enrichment because the lender had incurred a net loss on the acquisition and resale of the property even after application of the insurance proceeds, thus recognizing the principle of basing the mortgagee’s recovery on its actual loss rather than the extent of its legal interest.

Appellant’s policy arguments are without merit. We agree with appellee and the trial court that payment to appellee of the insurance proceeds to the extent of his net loss does not result in a double recovery or windfall because appellee, like the mortgagee in Palmer, incurred a net loss after the foreclosure and resale. In addition, as the trial court in this case correctly recognized, there is no risk of fraud because “the mortgagee merely bids the amount of the outstanding debt, which is the common procedure, and the amount of recovery [from the insurer] is based not upon what the mortgagee claims the property is worth but on the resale price or on the cost of repairs if the mortgagee decides to retain the property. The rights of the mortgagors can still be determined on the date of the foreclosure . . . .” Moreover, although insurance carriers undoubtedly have an interest in uniformity of the law across jurisdictional boundaries, that interest must yield to our State’s policy of enforcing contractual obligations and mandating that insurance policies cover actual economic losses.

Finally, we do not read the decision in Mid-State Homes Investment Corp. v. Wiggins, 217 Ga. 372 (3) (122 SE2d 106) (1961) to require a contrary result, for in that case the court merely held that there was no abuse of discretion in a trial court’s decision to enjoin foreclosure proceedings begun after a fire loss where the tendered insurance proceeds were sufficient to satisfy the debt. While it may be a better practice for the mortgagee to collect the insurance proceeds and apply them to the indebtedness rather than foreclosing, we find no basis for holding that the failure to do so extinguishes the insurer’s obligation to honor a contractual obligation where there has been an actual loss or impairment of an insurable interest in a property.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

Decided November 21, 1991

Reconsideration denied December 3, 1991

Drew, Eckl & Farnham, Edward G. Sullivan, Philip W. Savrin, for appellant.

Thomas A. Camp, for appellee.

       To the extent that Palmer could be interpreted to hold that the Whitestone rule applies in Georgia, that ruling constitutes physical precedent only. Court of Appeals Rule 35 (b).


text:
    A91A0833.
    REID v. CITY OF HOGANSVILLE et al.
    (413 SE2d 457)
   Judge Arnold Shulman.

The appellant filed suit against the appellees herein, consisting of the City of Hogansville, the Georgia Department of Transportation, and three of the department’s employees, Edward C. Brown, Archie Burnham and David Studstill, seeking to recover damages for the alleged wrongful death of her eight-year-old son, who was struck and killed by an automobile while attempting to cross Georgia Highway 54 within.the city limits of Hogansville. Also named as defendants in the action were Olden Dansby, the driver of a taxicab in which the decedent had been riding shortly before he was struck, and Joyce Driver, the operator of the vehicle which struck the decedent. However, the claims against these latter defendants have been dismissed with prejudice, apparently as the result of settlement agreements reached with them.

The claim against the Department of Transportation and its employees is based on allegations that they negligently established or recommended the establishment of a speed limit of 45 mph for the location where the accident occurred, without performing a traffic and engineering study at that location. The claim against the City of Hogansville is based on allegations that it failed to enforce its own ordinance requiring that taxicab businesses operating within the city maintain a bond or liability insurance coverage in the amount of $100,000 for the benefit of persons injured due to the negligence of their employees. The case is before us on appeal from the trial court’s grant of summary judgment to these defendants.

1. The appellant contends that the speed limit at the location in question was required by OCGA § 40-6-181 to be set at 30 mph, absent a joint determination by the commissioner of public safety and the commissioner of transportation, predicated on a traffic and engineering investigation, that a higher speed limit was appropriate at that location.

The accident occurred in a residential district located within the city limits of Hogansville. OCGA § 40-6-181 (b) specifies, in pertinent part, that the maximum speed limit on a state highway shall be: “(1) Thirty miles per hour in any urban or residential district. . . .” However, subsection (c) of this Code section provides that a speed limit which would otherwise apply thereunder “may be altered as authorized in Code Sections 40-6-182 and 40-6-183.” OCGA § 40-6-182 specifies, in pertinent part, that “[w]henever the commissioner of public safety or the commissioner of transportation shall determine upon the basis of an engineering and traffic investigation that any maximum speed set forth in this article is greater or less than is reasonable or safe under the conditions found to exist . . . upon any part of the state highway system, they may jointly determine and declare a reasonable and safe maximum speed limit at such place, which shall be effective when appropriate signs giving notice thereof are erected.” OCGA § 40-6-183 provides that the governing authority of an incorporated municipality or county “(b) ... in its respective jurisdiction shall determine by an engineering and traffic investigation the proper maximum speed for all arterial streets and shall declare a reasonable and safe maximum speed limit thereon which may be greater or less than the maximum speed permitted under this chapter for an urban district, but in no case shall the maximum be established at higher than 55 miles per hour.”

It is evident without dispute that the speed limit at the location in question was not set pursuant to OCGA § 40-6-182 — that is, by joint action of the commissioners of transportation and public safety. Appellee Brown submitted an affidavit averring that he had performed engineering and traffic investigations for the subject portion of Highway 54 in 1983 and 1985, and further averring that the speed limit for this location was set at 45 mph by the City Council of Hogansville in 1985. A copy of the ordinance in question is attached to this affidavit, and there appears to be no dispute as to its authenticity. However, in support of its motion for summary judgment, the City of Hogansville submitted an affidavit from another DOT employee, Jerry J. Dubberly, who identified himself as the General Operations Engineer for the Office of Traffic and Safety for the Georgia Department of Transportation and who averred that “ [i]t [was] the Georgia Department of Transportation and not the City of Hogansville, which actually determined and set the speed limit at 45 miles per hour.”

There seems to be no question that the city was authorized by OCGA § 40-6-183 (b), supra, to set a 45 mph speed limit at the location in question, and as previously indicated, it is apparent without dispute that the city passed an ordinance in 1985 doing so. We have been cited to no statutory authority under which the DOT would have been authorized to preempt the city’s action in this regard merely to set its own identical speed limit at this location, nor can we conceive of any reason why the DOT would have been motivated to take such action. Compare Mayor &c. of Woodbury v. State Hwy. Dept., 225 Ga. 723 (1) (171 SE2d 272) (1969) (holding that in view of the existence of former Code Ann. § 68-1610 (a) and (b), conferring upon the State Highway Board the exclusive authority to place and maintain traffic control devices on state highways, former Code Ann. § 68-1628, a predecessor statute to OCGA § 40-6-183, could not be construed as conferring upon local authorities the power to install and maintain such devices on state highways). Accordingly, in the absence of some explanation as to what action purportedly was taken by the DOT to set the speed limit and when it occurred, we consider Mr. Dubberly’s affidavit testimony on this issue to be nothing more than an unsupported legal conclusion. See generally Hinson v. Dept. of Transp., 135 Ga. App. 258, 260 (2) (217 SE2d 606) (1975). As such averments are without probative value, see generally City of Cordele v. Turton’s, Inc., 163 Ga. App. 327, 329 (293 SE2d 560) (1982), we therefore conclude that the evidence of record establishes without dispute that the speed limit at the location in question was set by city ordinance pursuant to OCGA § 40-6-183 (b). Accordingly, we hold that the DOT was properly awarded summary judgment on the appellant’s claim that it set the speed limit in contravention of the procedures set forth in OCGA § 40-6-182.

2. The appellant contends that, acting in their capacity as Department of' Transportation employees, appellees Brown, Burnham and Studstill negligently and unlawfully recommended a speed limit of 45 mph for the location in question without the benefit of an engineering and traffic study. However, it is apparent without dispute from affidavits submitted by Brown and other departmental employees that the recommendation in question was in fact predicated on a traffic and engineering study performed by Brown himself. Moreover, the making of this recommendation was quite obviously a discretionary rather than a ministerial function. “[I]f the [public] employee acted in his official capacity and the challenged act involved the performance of a discretionary duty, the employee is entitled to the defense of official immunity provided the act complained of was not malicious, wilful, or corrupt, or done in reckless disregard for the safety of others.” Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). See generally Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980). There being no allegation or suggestion that these employees acted maliciously or in reckless disregard of the public safety in recommending a 45 mph speed limit for the location in question, the trial court did not err in granting their motion for summary judgment.

3. The appellant contends that the trial court erred both in striking certain affidavit testimony she had obtained from several area residents to the effect that a speed limit of 45 mph was too high for the location in question and in ruling that an expert witness retained by her had failed to express an opinion on this issue during his deposition. Again, however, it was the governing body of the municipality which set the speed limit, and neither it nor any of the other parties named as defendants in this case can be held liable for any error in judgment it may have made in so doing. See generally OCGA § 36-33-1 (b); McCrary Eng. Corp. v. City of Bowdon, 170 Ga. App. 462 (1), 464-465 (317 SE2d 308) (1984). Accordingly, these evidentiary rulings establish no ground for reversal.

Decided October 28, 1991

Reconsideration denied December 3, 1991

Thomas E. Maddox, Jr., William M. Warner, for appellant.

Michael J. Bowers, Attorney General, Eric A. Brewton, Assistant Attorney General, Chambers, Mabry, McClelland & Brooks, Eugene P. Chambers, Jr., V. Jane Reed, for appellees.

4. As previously indicated, the appellant’s claim against the City of Hogansville was predicated on its alleged failure to enforce its own ordinance requiring taxicab businesses licensed by it to maintain a bond or liability insurance coverage in the amount of $100,000 in favor of persons injured due to the negligence of their agents or employees. However, inasmuch as the appellant has dismissed her claims against Mr. Dansby and his taxicab company with prejudice, she is no longer in a position to establish the extent, if any, to which their lack of insurance coverage or other assets prevented her from obtaining full recovery for her injuries. It follows that the trial court did not err in granting the city’s motion for summary judgment on this claim.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


author: Judge Arnold Shulman. Beasley, Judge,

text:
    A91A0904.
    ROLADER v. THE STATE.
    (413 SE2d 752)
   Judge Arnold Shulman.

The appellant was charged with one count of aggravated sodomy, one count of aggravated child molestation, and two counts of simple child molestation, all involving his then four-and-one-half-year-old daughter. A jury found him guilty on all four counts, but the trial court thereafter nolle prossed the aggravated sodomy count, based apparently on a determination that it was predicated on the same conduct as the aggravated child molestation count. The appellant’s primary contention on appeal is that his constitutional right to confront the witnesses against him was violated by the introduction of certain statements made by his daughter during the course of two videotaped interviews conducted prior to trial. The child did not testify at trial, although there appears to be no question that she was available to do so.

According to the indictment, the offenses were committed on or about December 24, 1989. The appellant testified that he got off work at about 3:15 p.m. on that date and spent the remainder of the afternoon moving his belongings from a guest house behind his parents’ residence, where he had been living, to another house located about two miles away, which he had just recently purchased. The appellant’s daughter and three-year-old son lived with their mother, the appellant’s ex-wife; and that evening the mother brought them to the appellant’s parents’ home to spend Christmas Eve night. After dinner, the children expressed a desire to go with the appellant to his new house, and accompanied by George Waters, a family friend who lived with the appellant’s parents, he drove them there! The four spent several hours at the appellant’s new house playing together and watching television, following which they returned to the appellant’s parents’ house, where the appellant’s son and Mr. Waters spent the remainder of the night. The appellant and his daughter, however, went back to his house to spend the night.

The following morning, the appellant returned to his parents’ house with his daughter to celebrate Christmas. Various family friends and relatives were present there during the course of the day, and by all accounts the child’s behavior, including her interaction with her father, seemed entirely normal and carefree. The mother returned for the two children that afternoon, stayed for a brief period of time exchanging gifts, and then took the children to the home of her father’s mother (i.e., the children’s great grandmother), Elizabeth Braswell. The mother testified that the daughter called to her while using the bathroom at the Braswell home and complained that it hurt her to urinate. She testified that she asked the child if she had “been drinking a lot of Coca-colas” during the day and that the child responded, “No, Mama . . . Daddy put his finger down here and it hurts me when I pee.” Mrs. Braswell either overheard this statement or heard the child make a similar statement, and she telephoned the mother’s father and his wife to inform them of it and to insist that the matter be reported to the authorities.

The next day, the mother’s father’s wife, Marie Braswell, called the Atlanta police to report the incident; and later that day she and the mother took the child to Atlanta police headquarters, where they discussed the incident with Detective Battle. He, in turn, sent them to a hospital to have the child examined by a physician. The physician, Dr. Gilcrest, testified that he asked the child “if anybody had been playing with her in her private parts,” and that she responded by saying “something to the effect that . . . some one had been putting their finger down there.” He stated that she subsequently identified her father as the person who had been doing this. He testified that he did not observe any “tearing” or “gapping” of the child’s vaginal area during his examination but did observe that the labia of her vagina were “very red.” He stated that this condition could have been caused by the use of a bubble bath or harsh soaps or by contact with sand and dirt but that it was also consistent with the child’s statement that her father had placed his finger in her vagina. The mother testified at trial that she bathed the child every night and had not observed any vaginal irritation prior to the incident in question.

About a week after the child was examined by Dr. Gilcrest, a female police investigator specializing in child sexual abuse cases conducted a videotaped interview with her at the Atlanta Police Station. Also present during this interview were Detective Battle and a “court advocate” from the “Victim Witness Program.” After being reminded of a talk she and the investigator had just had “about some things that happened at Christmas,” the child recalled having gone to her father’s house with her little brother on Christmas Day, and, pointing to her genital area, she then stated: “Daddy put his finger down back here.” Asked if this was the first time her daddy had ever done this, she nodded her head in the affirmative. However, she then gave the same response upon being asked if her father had ever done this to her before. The child recalled that as her father was driving her to his house on the occasion in question, a policeman and policewoman had followed them. She said that she told the policeman what her father had done and “hurried and tried to get to the door before he (her father) gets me,” and she added that her little brother was with her at the time and tried to help her by holding her hand and making her run fast. Asked why she had run from her father, she replied: “Because he want to get me and put that thing back down here.” Asked what “thing” she was referring to, she answered, “A dick.”

Around the time this interview took place, that is, about a week after Christmas, the appellant was summoned to the police station to discuss the allegations against him, and he denied any wrongdoing. It appears that he was given some sort of “ticket” at this time requiring his appearance in the Municipal Court of Atlanta. At a hearing which took place in that court on February 2, 1990, Detective Battle recommended that the child and both parents be required to participate in counseling.

The child was interviewed in late February by Lisa Wise, a social worker employed by a private, non-profit organization in DeKalb County known as the Georgia Center for Children, Inc. Ms. Wise described herself as a child therapist specializing in child abuse and testified that the mission of the Georgia Center for Children was to assist the police in their investigation of child sexual abuse, to help prepare children for court testimony, and to provide free psychotherapy to sexually abused children and their families. On cross-examination, she stated that she had interviewed hundreds of children who had complained of being sexually abused and that in her opinion all of them had been telling the truth.

Ms. Wise testified that she concentrated during her initial sessions with the child on getting to know her and “[j]ust gathering . . . information in my office so she’d feel comfortable and trust me.” She recalled that during a session which occurred on March 29, 1990, the child spontaneously took a pair of anatomically correct male and female dolls from a table, removed their clothes, and laid the male doll on top of the female doll. She testified that she did not question the child “at a great extent” about this at the time because she wanted her “to go at her own pace.” The following week, however, she conducted a videotaped interview with the child in which she questioned her in detail about the incident. The following are selected excerpts from a transcript of that interview:

“Q. Would you tell me with the dolls what you showed me before in my office about what happened to you about what you told your mom; would you do that today? A. (Nods head affirmatively). Q. Okay. Who hurt you? A. Daddy. . . . Q. Would you show me with the dolls and tell me about what happened? A. (Nods head affirmatively.) . . . Q. What do you call that part of the man’s body? A. Dick.. . . Q. Will you tell me what happened? A. He put this in here, in her mouth. Q. In whose mouth? A. (Indicating.) Q. In your mouth? A. (Nods head affirmatively.) Q. Where were you? A. At (his) house. . . . Q. What room were you in? A. In his room. He put it in there (indicating). Q. And then what happened? Did he put it anywhere else? A. In his butt. Q. In whose butt? A. Mine. Q. What did it feel like? . . . A. Like dick. . . . Q. Okay. Was it hard or was it soft? A. Hard. Q. Did (the appellant) say anything to you? A. (Nods head affirmatively.) Q. What did he say? A. Told me don’t tell. . . Mama. . . . Q. Where was Mommy? A. At work. Q. Where was (your brother)? A. At school — with me. ... Q. In (the appellant’s) bedroom? A. (Nods head affirmatively.) Q. Did (the appellant) ask you to touch any part of his body? A. (Shakes head negatively) . . . Q. Okay. Did he touch you in any other room of the house? A. (Nods head affirmatively.) Q. Which other room? A. My room. . . . Q. Was it daytime or nighttime? A. Nighttime. Q. Nighttime. Was it dark outside or light outside? A. Light outside. Q. It was light outside? A. Then he did it again. Q. When? A. For a day. Q. Where was Mommy? A. At work again. . . . Q. [D]id it hurt? A. Yeah. Q. It did. What did you tell (the appellant)? A. Stop. Q. And what did he say? A. He said no. Q. And then what happened? What did Mommy say when you told Mommy? A. She told me to tell him stop. ... Q. Do you remember how old you were when (the appellant) did that to you? A. Four. Q. And was it before Christmas or after Christmas? A. After. Q. Had you already gotten your presents? A. Yeah. . . . Q. . . . Let me ask you real quick, did (the appellant) ask you to touch him with any part of your body? A. (Shakes head negatively.) Q. Did he show you any dirty magazines or movies? A. (Nods head affirmatively.) Q. He did. Where were they? A. . . . He showed some bad things like he did to me. Q. Where did he show you those? A. At his house. Q. Was it on the TV or was it in a magazine? A. Magazine. . . . Q. Okay. And did Daddy put his private parts in your private parts more than one time? Do you understand? A. (Nods head affirmatively.) Q. How many times? A. (Indicating with five).”

Ms. Wise testified that during a later counseling session which took place in June of that same year, the child asserted that her daddy had not hurt her but that her mother’s boyfriend, Bruce, had hurt her. Ms. Wise further stated that in September of that year, she asked the child “if anyone else had touched her like her daddy,” and the child responded that her mommy’s boyfriend, Charles, had done so. The appellant’s parents testified that the child had told them that a man named Charles had had sex with her mother and had put his penis in her brother’s behind and that she had also seen her mother having sex with a man named Stephen. While the mother acknowledged that she had dated men named Bruce and Charles and that each had “stayed over” in her home on at least one occasion while the children were present there, she asserted that the children had been in bed on these occasions and did not know where the men had slept. She further testified that she had never left the children alone with any of the men she had gone out with, that she had never discussed sex with her daughter, and that to her knowledge the child had never been exposed to sexual activity in movies, television, or magazines. The appellant had continued to visit his children and to participate in family activities with them and with their mother subsequent to the occurrence of the alleged abuse, and it was established without dispute that the daughter had been happy to see him and had displayed affection towards him during each of these visits.

1. Pursuant to OCGA § 24-3-16, “[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” (Emphasis supplied.) As previously indicated, there appears to be no question in the present case that the appellant’s daughter was “available to testify” during the trial, although neither side asked the court to call her as a witness. Cf. Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987). The appellant contends, however, that under the recent decision of the United States Supreme Court in Idaho v. Wright,_U. S__(110 SC 3139, 111 LE2d 638) (1990), the admission of the two videotaped statements into evidence violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution, regardless of whether the requirements of OCGA § 24-3-16 were satisfied.

The Supreme Court made it clear in Idaho v. Wright, supra, that the Confrontation Clause “bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.” The evidence at issue in that case was a statement made by a two-and-one-half-year-old child to a hospital pediatrician to the effect that her father had molested her. In determining whether the father’s Sixth Amendment rights were violated by the admission of this evidence in his subsequent prosecution for “lewd conduct with a minor,” the Court employed the following two-step approach previously adopted by it in Ohio v. Roberts, 448 U. S. 56 (100 SC 2531, 65 LE2d 597) (1980): “ ‘First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case . . . , the prosecution must either produce or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.’ Ibid, (citations omitted). Second, once a witness is shown to be unavailable, ‘his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.’ ” Wright, supra at 111 LE2d 651-652.

The trial judge in Wright had ruled that the child was incapable of communicating with the jury, and this ruling had not been challenged by defense counsel. Accordingly, the Supreme Court assumed without deciding that to the extent the Confrontation Clause required the prosecution to show the unavailability of a child witness prior to introducing out-of-court statements made by her, that requirement had been satisfied. The Court then stated: “The crux of the question presented is therefore whether the State, as the proponent of evidence presumptively barred by the hearsay rule and the Confrontation Clause, has carried its burden of proving that the [child’s] incriminating statements to [the physician] bore sufficient indicia of reliability to withstand scrutiny under the Clause.” Id. at 652-653.

As previously noted, the Georgia statute, OCGA § 24-3-16, specifies that an out-of-court statement made by a child under the age of 14 years describing acts of sexual molestation or physical abuse is admissible in evidence “i/ the child is available to testify in the pro ceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” (Emphasis supplied.) Thus, to the extent that the Confrontation Clause conditions the admissibility of such evidence on the child’s unavailability to testify, it would appear that the requirements of our statute may conflict with the requirements of the Sixth Amendment. However, we need not resolve this issue in the present case, inasmuch as the circumstances surrounding the making of the videotaped statements at issue here fail, in our opinion, to establish their inherent reliability.

Like the statements at issue in Wright, the statements at issue in the present case do not fall within a “firmly rooted hearsay exception.” Consequently, they are “ ‘presumptively unreliable and inadmissible for Confrontation Clause purposes,’ [citation omitted] and ‘must be excluded, . . . absent a showing of particularized guarantees of trustworthiness.’ ” Id. at 654, citing Ohio v. Roberts, supra, 448 U. S. at 66. The Supreme Court held in Wright that the relevant circumstances from which such “particularized guarantees of trustworthiness” must appear “include only those that surround the making of the statement and that render the declarant particularly worthy of belief.” Id. at 655. The Court listed several factors which have been identified by state and federal courts as bearing on the reliability of hearsay statements made by child witnesses, including “spontaneity and consistent repetition,” “use of terminology unexpected of a child of similar age,” and “lack of motive to fabricate.” Id. at 656. It then observed that “the unifying principle” surrounding these factors is that they all “relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.” Id. The Court rejected the state’s contention that “particularized guarantees of trustworthiness” sufficient to satisfy a Confrontation Clause objection could be derived from independent evidence tending to corroborate a child’s out-of-court statement, holding that “[t]o be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.” Id. at 657. (Emphasis supplied.) Concluding that the incriminatory statement made by the defendant’s two-and-one-half-year-old daughter to the hospital pediatrician had not been “made under circumstances of reliability comparable to those required, for example, for the admission of excited utterances or statements made for purposes of medical diagnosis or treatment,” id. at 660, the Court accordingly held that the statement was inadmissible.

We are constrained to conclude that the circumstances surrounding the making of the videotaped statements at issue in present case likewise fail to establish the inherent reliability of those statements. Although the appellant’s daughter certainly used terminology which would not be expected of a child her age and although she had no apparent motive to fabricate, her statements obviously do not meet the tests of “spontaneity and consistent repetition.” In addition, some of the assertions made by her during the two videotaped interviews are inconsistent with the known facts. Furthermore, the interviews were conducted by persons acting in a law enforcement capacity, with the clear intention of gathering evidence for use against the appellant in subsequent criminal proceedings.

By the time the first of the two interviews took place, nine days had transpired since the occurrence of the events under investigation, and during that period the child had been questioned about the incident by several adults, including the officer who conducted the interview. As noted by the Supreme Court in Wright, even where a child’s statements regarding alleged abuse appear on the surface to be spontaneous, “it is possible that ‘(i)f there is evidence of prior interrogation, prompting, or manipulation by adults, spontaneity may be an inaccurate indicator of trustworthiness.’ ” Id. at 659-660, citing Arizona v. Robinson, 735 P2d 801 (1987). By the time the second interview took place, over three months had transpired since the occurrence of the alleged incident; and the interviewer, who was acting with the avowed intention of “assisting] the police in their investigation of child sexual abuse” and “helping] to prepare [the child] for court testimony,” had counseled the child repeatedly during that period. It is not our intention to imply that there was anything improper about this; however, the therapist’s desire to assist the police and the prosecution in establishing a case against the appellant is, we believe, a factor which must be taken into consideration in determining whether “the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility. . . .” Wright, supra at 655. Considering the totality of the circumstances surrounding these two interviews, we are simply unable to discern such “particularized guarantees of trustworthiness” as would obviate the appellant’s Confrontation Clause objection. Accordingly, we are constrained to hold that the trial court erred in admitting this evidence.

2. The appellant contends that the trial court erred in allowing the therapist to offer testimony concerning the “child sexual abuse accommodation syndrome” over his objection that the existence of such a syndrome had not been established to a verifiable scientific certainty. The witness testified that the “child sexual abuse accommodation syndrome” was generally considered to be a valid and useful model in explaining and predicting the behavior of child abuse victims, and there was no evidence suggesting that the theory was not scientifically valid. It appears that testimony concerning this syndrome has been permitted in numerous other child abuse cases in this state. See Allison v. State, 256 Ga. 851 (2) (353 SE2d 805) (1987); Hall v. State, 196 Ga. App. 523 (2) (396 SE2d 271) (1990); Braggs v. State, 189 Ga. App. 275 (2) (375 SE2d 464) (1988); Keri v. State, 179 Ga. App. 664 (1) (347 SE2d 236) (1986). “Once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.” Harper v. State, 249 Ga. 519, 526 (292 SE2d 389) (1982). Accordingly, we find this enumeration of error to be without merit.

Decided November 15, 1991

Reconsideration denied December 3, 1991

England, Weaver & Kytle, J. Melvin England, for appellant.

Robert E. Wilson, District Attorney, John T. Morgan III, Barbara B. Conroy, Assistant District Attorneys, for appellee.

3. The appellant contends that the trial court erred in refusing to admit into evidence a copy of a pamphlet published by the Georgia Center for Children, Inc., listing various symptoms of child sexual abuse. The appellant contends that because the child’s therapist testified that she had observed few, if any, of these symptoms in the child, the pamphlet was relevant and admissible to impeach her testimony. However, it appears from the transcript that appellant’s counsel was permitted to read the material in question in cross-examining this witness and to explore fully the extent to which the child had or had not displayed the symptoms in question. The court did not abuse its discretion under these circumstances in declining to admit the pamphlet itself into evidence. See generally Bland v. State, 174 Ga. App. 584 (3) (330 SE2d 796) (1985).

Judgment reversed.

Carley, P. J., concurs and Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I do not concur in the statement in Division 1 suggesting that the Georgia statute “may conflict with the requirements of the Sixth Amendment.” Moreover, the issue is not before us.


author: Beasley, Judge. Carley, Presiding Judge,

text:
    A91A1034.
    RUDE v. WINN DIXIE STORES et al.
    (413 SE2d 741)
   Beasley, Judge.

Plaintiff Rude appeals the grant of motions for summary judgment in favor of defendants Griffith & Associates and Winn Dixie Stores in a “trip and fall” case.

After consideration of the arguments advanced by the parties and examination of the record, no reversible error of law appears and an opinion would have no precedential value. Court of Appeals Rule 36 (2). See Gray v. Alterman Real Estate Corp., 196 Ga. App. 239 (396 SE2d 42) (1990); Adams v. Winn-Dixie Stores, 192 Ga. App. 892 (386 SE2d 686) (1989); Emory Univ. v. Duncan, 182 Ga. App. 326 (355 SE2d 446) (1987); Alterman Foods v. Munford, 178 Ga. App. 214 (342 SE2d 480) (1986); Hershel McDaniel Funeral Home v. Hines, 124 Ga. App. 47 (183 SE2d 7) (1971). See also Weldon v. Del Taco Corp., 194 Ga. App. 174 (390 SE2d 87) (1990).

Affirmed in accordance with Court of Appeals Rule 36.

Sognier, C. J., Birdsong, P. J., Pope, Cooper and Andrews, JJ., concur. McMurray, P. J., Carley, P. J., and Judge Arnold Shulman dissent.

Carley, Presiding Judge,

dissenting.

In my opinion, a genuine issue of material fact remains as to the creation and maintenance by appellee-defendants of an optical illusion from which appellant-plaintiff’s attention had been distracted. See Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348 (349 SE2d 241) (1986). Accordingly, I must respectfully dissent to the majority’s affirmance of the grant of appellees’ motions for summary judgment.

Construing the evidence most favorably for appellant, the facts are as follows: Appellees maintained in the parking lot of their store a shopping cart storage area. The boundary of this area was delineated by concrete curbs. These curbs were painted the same shade of yellow as the stripes which divided the parking places. Moreover, with one exception, the yellow curbs were parallel to the yellow stripes. According to appellant, when she exited her car and began to walk toward appellees’ store, her attention was distracted by advertisements and window displays at the front of the store. Encountering the raised yellow curbs rather than the level yellow stripes, appellant fell and injured herself.

An obstruction on the ground “combined with other factors which in their totality cause the injury and are chargeable to the defendant may together cause actionable negligence. . . .” (Emphasis in original.) Lumbus v. D. L. Claborn Buick-Opel, 153 Ga. App. 807, 808 (266 SE2d 526) (1980). See also Butts v. Academy of Beauty, 117 Ga. App. 222, 223 (3) (160 SE2d 222) (1968). “In many cases where the plaintiff fell over or ran into an otherwise obvious defect or obstacle, the matter of contributory negligence was held to be a jury question because of allegations explaining that the obstacle was difficult to see because it blended in color with the ground or floor. . . . [Cits.] Also, there are facts which may be pleaded by the plaintiff to excuse her from exercising that degree of care under the circumstances which the law would otherwise hold to be necessary in an ordinarily prudent person[, such as] where the plaintiff’s attention is distracted by a natural and usual cause, . . . [such as a defendant’s specially decorated store window].” (Emphasis supplied.) Redding v. Sinclair Refining Co., 105 Ga. App. 375, 377-378 (2) (124 (SE2d 688) (1962). See also Smith v. Swann, 73 Ga. App. 144, 147-148 (35 SE2d 787) (1945) (cases where the defect would have been plainly visible, if the plaintiff had looked, distinguished from cases involving an optical illusion); Butts v. Academy of Beauty, supra at 223 (3) (presence of optical illusion is usually a jury question); Mason v. Frankel, 49 Ga. App. 145, 146 (2) (174 SE 546) (1934) (plaintiff distracted by signs in defendant’s store window).

Decided November 12, 1991

Reconsideration denied December 3, 1991

Jeffrey D. Bridges, for appellant.

Martin, Snow, Grant & Napier, John C. Edwards, Jay C. Traynham, Chambless, Higdon & Carson, Marc T. Treadwell, Robin N. Bargeron, for appellees.

“[T]he evidence [in the instant case] does not negate the allegations of an optical illusion ... so as to show that the . . . [yellow curbs] were, as a matter of law, such a patent defect as appellant, in the exercise of ordinary care, should have observed. [Cits.] ... On the record before us, a jury should decide whether appellant was injured as the result of falling over a dangerous optical illusion from which she was distracted by [the advertisements and window displays in appellees’ store] or, as appellee[s] [contend], she tripped over a patent defect [from which she was not distracted at all]. [Cit.]” Shackelford v. DeKalb Farmer’s Market, supra at 350-351 (2). See also Butts v. Academy of Beauty, supra at 223 (4) (where continuity of floor pattern over a step, brilliantly illuminated, constituted an optical illusion). In my opinion, the majority erroneously affirms the grant of summary judgment in appellees’ favor. I must, therefore, respectfully dissent.

I am authorized to state that Judge Arnold Shulman joins in this dissent.


author: Cooper, Judge.

text:
    A91A1108.
    FIRST DIXIE PROPERTIES, INC. v. CHRYSLER CORPORATION.
    (413 SE2d 464)
   Cooper, Judge.

This is an appeal from the trial court’s order granting appellee’s motion to set aside default judgment and to enforce settlement.

In August 1986, appellant filed suit against appellee by and through its counsel of record, Larry Thomason. Through the end of 1986, Thomason was engaged in settlement negotiations with appellee’s counsel in Michigan which resulted in an offer by appellee on November 25, 1986 to settle the case for $7,000. In a letter from appellant to Thomason dated December 10, 1986, appellant rejected appellee’s $7,000 offer. Unknown to appellant, on January 14, 1987, appellee mailed a settlement check in the amount of $7,000 made payable to Thomason’s trust account, as attorney for appellant. The letter accompanying the check stated that the check was in settlement of appellant’s lawsuit and, in a postscript, appellee requested that Thomason forward to appellee a copy of the Dismissal with Prejudice so that appellee could close its file. The check was negotiated by Thomason, who did not pay the funds to appellant or notify appellant of the receipt of the check. The parties state that Thomason has since been disbarred and is now serving time in jail. In an affidavit, Jack Gocek, vice-president of appellant, stated that he was in touch with Thomason periodically through the beginning of 1989 and had during that time requested Thomason to ask for a jury calendar date. When Gocek became aware of Thomason’s disbarment in March 1989, he called appellee and was told of the check that had been sent to Thomason. Appellant never received any money or did Gocek ever give his permission to settle the case. Throughout this time, appellee did not file an answer to the original complaint or did appellee obtain a dismissal of the suit. There is no evidence in the record that indicates appellee attempted to obtain a dismissal or follow up in any way on its request to Thomason for a dismissal that was contained in the letter accompanying the check. Gocek continued to talk to appellee’s counsel in Michigan during August and September 1989 and informed him that the case was still pending and that he intended to proceed to a judgment against appellee since they had failed to answer and had failed to obtain a dismissal of the suit. Gocek was informed by appellee’s counsel that as far as they were concerned the matter was settled. Gocek then hired another lawyer and on May 30, 1990, obtained a default judgment against appellee in excess of $40,000. A writ of fieri facias was entered on July 2, 1990, and appellee states that it was granted a temporary restraining order. On August 1, 1990, appellee, through local counsel, filed a Motion to Set Aside Default Judgment and to Enforce Settlement pursuant to OCGA § 9-11-60 (d) (2). After a hearing, the court granted appellee’s motion and ordered the case dismissed with prejudice. We do not have a transcript of the hearing in our record, and the trial court’s order does not state the reasons for its decision.

Appellant’s second enumeration of error, that the trial court erred in disregarding the requirements of OCGA § 9-11-60 (d) (2), is dispositive of this case. OCGA § 9-11-60 (d) (2) states that “[a] motion to set aside may be brought to set aside a judgment based upon . . . [f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant. . . .” (Emphasis supplied.) These grounds to set aside a judgment were added to OCGA § 9-11-60 to replace the complaint in equity to set aside a judgment. See Lee v. Henson, 198 Ga. App. 701, 702 (402 SE2d 548) (1991). The Georgia courts have interpreted the requirements for the complaint in equity, which were identical to those currently stated in OCGA § 9-11-60 (d) (2), as disallowing a motion to set aside to a party who negligently failed to file an answer and make its defense. Such a party was barred by its own negligence from seeking a court to set aside a judgment. Parson-Nicholson, Inc. v. Dalton Carpet &c. Co., 161 Ga. App. 595, 596 (289 SE2d 25) (1982). See Richardson v. Industrial Welding &c. Supplies, 238 Ga. 144 (2) (231 SE2d 760) (1977). In cases similar to the instant case in which the movant asserted a settlement as the reason for failing to file an answer, the courts held that when there was no act upon which the movant could place confidence that the other party would not seek a judgment, or no act that prevented the movant from presenting its defense, then the movant was barred by its own negligence from having the judgment set aside. Collier v. Hirsch, 218 Ga. 854, 855 (131 SE2d 105) (1963). See also Stratton v. Bingham, 238 Ga. 287 (232 SE2d 560) (1977); Erwin v. Marx, 228 Ga. 495 (3) (186 SE2d 735) (1972). Consistent with these cases, this court has recently interpreted OCGA 9-11-60 (d) (2) and has disallowed a motion to set aside to a party whose own negligence contributed to the entry of the judgment. Northeast Atlanta Surety Co. v. State of Ga., 197 Ga. App. 399, 401 (398 SE2d 435) (1990). Appellee directs us to the case of Marsh v. Northland Ins. Co., 242 Ga. 490 (249 SE2d 205) (1978), a lone divergence among the consistent caselaw cited herein. In Marsh, an insured cashed a settlement check sent by the insurance company which contained explicit language that endorsement of the check by the insured would constitute full settlement of the claim. The insured sent a dismissal to the company with instructions to mail in the dismissal with the court costs, and a warning that if the company failed to do so they would be liable for a judgment. The company returned the dismissal and demanded that the insured pay the costs and in the meanwhile neglected to file an answer to the suit. The insured took judgment and a divided court held that the insured committed fraud, and the company was not negligent. The court emphasized that it did not establish “a general principle excusing a defendant from filing his defenses in a pending lawsuit.” Marsh, supra at 492. The court stated that its ruling was limited to those situations “where an insured accepts a draft from his insurance company in full and final settlement, accord and satisfaction of his insurance claims, and in consideration of his promise, express or implied, to pay the costs of court and to dismiss his pending lawsuit against the insurance company.” Id. We will follow the directive stated in Marsh and limit the case to its facts. In the instant case, contrary to Marsh, appellee did not receive a dismissal or seek one from appellant. Unlike Marsh, appellee was clearly told that appellant would seek a judgment in the case. Further, in the instant case, appellant was not aware of a check, did not itself endorse the check, and did not receive any money. Marsh does not control our decision herein.

Decided October 29, 1991

Reconsideration denied December 3, 1991

Didio & Broome, Stefano A. Didio, for appellant.

Freeman & Hawkins, Joe C. Freeman, Jr., Joanne B. Brown, for appellee.

Pretermitting any issue of fraud, or other acts of appellant in the instant case, the requirement of the statute that appellee be free of negligence or fault is not satisfied. During the many years that this suit was pending, appellee never filed an answer to the complaint. Despite appellee’s transmittal of the check and the request for a dismissal, there is no evidence that appellee ever received any communication from appellant or Thomason regarding a dismissal, or is there any evidence that appellee pursued its request in any way. Upon receiving explicit notice from appellant that it never agreed to any settlement and a warning that appellant intended to proceed with the case, appellee still did nothing. It appears that only when appellant attempted to enforce the default judgment did appellee hire local counsel to set aside the judgment. Appellee argues that the apparent authority doctrine dictates that appellant is bound by the acts of its attorney of record, Thomason. Even if Thomason had apparent authority to settle the claim on behalf of appellant, once judgment was obtained the requirements of OCGA § 9-11-60 (d) (2) had to be met. The facts of this case do not allow us to conclude that the acts of appellant were unmixed with the negligence of appellee, and therefore we determine that the trial court erred in granting appellee’s motion to set aside.

Judgment reversed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1206.
    MULLINS v. COLUMBIA COUNTY.
    (413 SE2d 489)
   Cooper, Judge.

Appellant appeals from the trial court’s grant of summary judgment to appellee.

In 1972, Dr. D. Frank Mullins granted an easement to appellee over a portion of his property for the construction of a sanitary sewer line. Appellee contracted with Wheatley Grading Contractors, Inc. (“Wheatley”) to construct the sewer line. Dr. Mullins died in 1973 and appellant was appointed executor of his estate and trustee under his will. In March 1974, prior to completion of the sewer line, Dr. Mullins’ widow wrote a letter to the Chairman of the Board of Commissioners of Columbia County in which she listed specific problems with the work done on the property and requested help to restore the property to its original condition. The sewer line was completed in April 1974, and there is no evidence of any further communication from Dr. Mullins’ widow or appellant until November 1984, when appellant filed suit against the Chairman of the Board of Commissioners of Columbia County and Wheatley. Wheatley’s motion for summary judgment was granted in December 1986, and appellant voluntarily dismissed the complaint against the chairman. The grant of summary judgment to Wheatley was affirmed by this court in Mullins v. Wheatley Grading Contractors, 184 Ga. App. 119 (361 SE2d 10) (1987). Appellant then brought this action against the county in March 1987 alleging a lack of consideration for the easement agreement, breach of the duties as set forth in the easement agreement, failure to maintain the easement area and to perform certain work agreéd to and creation of a nuisance. Appellant further alleged that the county’s actions with respect to the construction of the sewer line resulted in serious erosion of the appellant’s property, causing the pond located on the property to fill with silt and the stream flowing through the property to change its course: Appellant contended that the condition on the property is a continuous one, that access to the property was made difficult and that an eyesore was created. The order of the trial court states that two hearings were held on appellee’s motion for summary judgment, and the trial court issued detailed findings of fact and conclusions of law after considering the evidence presented at the hearings and the record. The hearings were not transcribed nor did appellant submit a transcript from recollection pursuant to OCGA § 5-6-41 (g). Except for the pleadings filed and certain other documents, our record only contains selected and scanty excerpts from certain depositions taken in the case.

The trial court found that the creek and pond located on the Mullinses’ property are part of a very large drainage basin. A prior owner constructed a road across the creek which acted as a dam on the creek except for pipes which were installed to allow the water to flow under the road. Dr. Mullins rebuilt the road and installed two new pipes to allow the creek to flow under the road. The pipes fell into disrepair and became clogged with accumulated mud, thus sealing the dam and forcing the creek to create a new creek bed. The court concluded that the pipes became clogged because the owner of the property after Dr. Mullins’ death failed to maintain the pipes. Thus, the court held that any siltation of the pond from the new creek bed was caused by the owner’s failure to maintain the pipes, not by any action of the county. The court noted that appellant contended that the creek and pond also became filled with silt as a result of the construction of the sewer line on a hill southeast of the pond and that appellant’s witnesses placed the silt and erosion as coming from this hill. The court found that the construction plans and location of the manholes clearly established that the county’s sewer line is not on that hill but is in the creek bottom parallel to the creek bed. Stated the court: “The evidence established that there is a drainage ditch on said hill which runs from a railroad line. That ditch, at some time in the past, washed to bedrock. The evidence established that if the siltation came from the area contended by [appellant], said silt would not have come from property owned, controlled, or operated by Columbia County.” Thus, the court determined that the evidence failed to establish any negligence or breach of contract of the county which caused the alleged damage to appellant’s pond. As to the nuisance claim, the court found that the appellant’s evidence established that the majority of the siltation occurred in the late 1970s and that “the testimony did not articulate any indication of any continuing siltation other than naturally occurring siltation in a drainage basin.” Since appellant did not show any continuing damage to the pond caused by any act or omission of the county, there was no question to submit to a jury. In addition to the decision on the merits, the court also concluded that appellant had not complied with OCGA § 36-11-1 which requires notice of any claim against a county to be presented to the county within 12 months after the claim accrues or becomes payable.

Appellant raises five enumerations of error, contending that the trial court erred in failing to consider the evidence that the county did not maintain the easement, in concluding that appellant’s pond incurred siltation as a result of the owner’s negligence, in concluding that there was no evidence of a continuing nuisance, in finding that the widow was not the owner of the property in 1974 and in barring the action pursuant to the county notice requirement. “ ‘ “(T)he burden is on the party alleging error to show it affirmatively by the record, and . . . when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. . . . ‘(W)here the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.’ (Cits.)” ’ [Cit.]” Coffee v. Silver, 195 Ga. App. 247, 248 (1) (393 SE2d 58) (1990). Review of the first four of appellant’s enumerations requires consideration of all the evidence submitted in the trial court in connection with appellant’s claim and not just selected excerpts from certain depositions. Id. Since we have no indication of the testimony that precedes or follows the deposition excerpts submitted to this court and since no transcript of the hearing was provided, our record is incomplete, and we are “ ‘ “bound to assume that the trial court’s findings are supported by sufficient competent evidence, for there is a presumption in favor of the regularity of all proceedings in a court of competent jurisdiction. . . .” (Cit.)’ [Cit.]” Id. Since the deposition excerpts submitted do not contradict the trial court’s decision, we accept the trial court’s factual findings, and similarly conclude that there is no genuine issue of material fact regarding breach of contract, negligence or nuisance on the part of the county causing the damage alleged by appellant. See OCGA § 9-11-56. Because of this conclusion, we shall not reach appellant’s fifth enumeration, which challenges the trial court’s ruling on OCGA § 36-11-1, because even if we were to determine that appellant’s claim was not barred by any applicable statute of limitation or notice requirement, we would then nevertheless affirm the trial court’s order on the merits of appellant’s action.

Decided November 15, 1991

Reconsideration denied December 3, 1991

Allen W. Johnson, for appellant.

Powell & Chapin, Richard L. Powell, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1208.
    WELDON v. THE STATE.
    (413 SE2d 466)
   Cooper, Judge.

Appellant was convicted by a jury of a violation of the Georgia Controlled Substances Act and appeals from the denial of his motion for new trial.

1. Appellant first enumerates that the trial court erred in denying his motion for directed verdict because the evidence was insufficient to support a verdict of guilt. Viewing the evidence in a light favorable to the verdict, it showed that sheriff’s officers executed a search warrant at appellant’s place of business, a garage, with the intention to look for drugs. One of the officers searched a car parked in a driveway to the garage and found a metal box between the grill and the radiator of the car. After a bit of a struggle to remove the box from the car, the officer determined it was locked. Unable to. locate the key to the box, the officer broke the lock and discovered inside 8.9 ounces of marijuana in a plastic bag and some receipts from Strickland Building Supply. Appellant’s ex-wife testified that she owned the property on which the garage was located but that she had an agreement with appellant that he could lease the garage. She stated that appellant had given her the car in which the marijuana was found in settlement of a child support claim but that she had not driven the car. She admitted that she had given a statement to an officer prior to trial, and the evidence revealed that she told the officer that both she and appellant had keys to the car and that appellant had driven the car a few times. At trial, however, the ex-wife testified that she assumed appellant had a key to the car and had driven the vehicle, although she was not certain. A second officer searched the garage and discovered a plastic bag inside the insulation of the garage door which contained what he believed to be marijuana residue, yet in a quantity too small to be tested. The officer testified that the plastic bags found in the door and in the car were very similar. A copy of a drug conviction against appellant in Kansas was stipulated to by appellant and admitted into evidence without objection. A copy of the Kansas conviction does not appear in the official record before us, but the prosecution served appellant with notice of intent to present similar transaction evidence showing that appellant possessed marijuana with intent to sell in Kansas. Appellant called several witnesses for the defense but did not take the stand himself. One of the defense witnesses testified that he bought the materials identified in the receipts from Strickland Building Supply found in the metal box. The witness stated that appellant reimbursed him for the materials and he gave appellant the receipts from Strickland Building Supply. Other witnesses testified that many people went in and out of the garage and that prior to the search, appellant was living in Alabama. Evidence of appellant’s statement that he denied knowledge of the marijuana was admitted at trial.

“A defendant is entitled to a directed verdict ‘(w)here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. . . .’ [Cit.]” Scavonne v. State, 193 Ga. App. 603, 604 (1) (388 SE2d 735) (1989). After a review of the record and the evidence adduced at trial, we conclude that the evidence authorized the jury to conclude beyond a reasonable doubt that appellant was guilty of possession of marijuana and find no error in the court’s denial of appellant’s motion for a directed verdict. See Scauonne, supra at 604.

Decided October 29, 1991

Reconsideration denied December 3, 1991

Charles G. Wright, Jr., for appellant.

Ralph L. Van Pe.lt, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

2. Appellant also contends that his counsel at trial was ineffective because he did not object to the introduction of the Kansas conviction and because he did not call appellant to testify on his behalf. Trial counsel submitted an affidavit stating that he did not call appellant as a witness because of the weak nature of the State’s evidence. Counsel was concerned that appellant’s testimony would hurt his case and felt that the defense would not benefit from appellant’s testimony. The Kansas conviction was admissible as similar transaction evidence and failure to make a technical objection thereto does not render counsel ineffective. “ ‘ “To prove he has received ineffective assistance of counsel, ‘(t)he defendant must show both that counsel’s performance was deficient and that this deficiency prejudiced the defense.’ (Cits.) ... As to deficient performance, errors in judgment and tactical errors do not constitute denial of effective assistance of counsel. (Cit.)” (Cit.)’ [Cit.]” Powell v. State, 198 Ga. App. 509 (1), 510 (402 SE2d 108) (1991). Appellant’s trial counsel filed pre-trial motions, cross-examined witnesses, made objections at trial, moved for directed verdict, called witnesses for the defense and filed a motion for new trial. Appellant’s counsel’s performance was within the range of “reasonably effective assistance,” see Powell, supra at 510, and appellant’s second enumeration has no merit.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1363.
    SHEPHERD CONSTRUCTION COMPANY, INC. et al. v. JARRETT.
    (413 SE2d 742)
   Judge Arnold Shulman.

The appellee was severely injured when an automobile which she was occupying as a guest passenger collided with a construction vehicle which was parked on Interstate Highway 75, south of Atlanta. The driver of the automobile, Michael David Roberts, was killed in the collision. The construction vehicle belonged to appellant Shepherd Construction Company, Inc., which, in conjunction with appellant Plant Improvement Company, Inc., was performing repaving work at the location in question pursuant to a contract with the Georgia Department of Transportation (DOT). The appellee filed the present action against the administrator of Roberts’ estate, the DOT, several DOT employees, and the appellant contractors, alleging that the collision had resulted from a combination of negligence on the part of Roberts in failing to avoid the construction vehicle and negligence on the part of the DOT and the appellant contractors in failing to take adequate steps to divert traffic from the location where the accident occurred.

The claim against Roberts’ estate was settled prior to trial. The remaining claims were tried before a jury, which found in favor of the DOT and its employees but against the appellant contractors, assessing compensatory damages against them in the amount of $100,000, plus punitive damages in the amount of $100,000. The appellants thereafter entered into an agreement with the appellee whereby they paid the compensatory damage award and waived the right to challenge that portion of the jury’s verdict on appeal. They then filed the present appeal seeking to overturn the award of punitive damages.

The collision occurred at night, at the junction of the highway and a southbound entrance ramp. A crew of men employed by the appellant contractors was at work resurfacing the right southbound lane of the highway at the time, through the operation of a series of vehicles and machines referred to as a “paving train.” The paving train was approximately a half mile to a mile south of the entrance ramp when the accident occurred, moving in a southerly direction. At some point north of the ramp, all southbound traffic on the highway had been diverted into the left southbound lane; and to keep traffic confined to that lane, orange traffic cones had thereafter been placed at regular intervals between the two southbound lanes. A series of such cones had also been placed at the base of the entrance ramp in question, in order to channel traffic entering the highway at that location across the closed right lane into the left lane. At the end of the entrance ramp, approximately 300' feet south of these channelization cones, a water truck involved in the repaving process had been parked in the right lane with its taillights on.

Construing the evidence in support of the jury’s verdict, it appears that the automobile being driven by Roberts came down the ramp, hit one of the channelization cones (which was still lodged underneath it after the collision) and continued straight ahead into the water truck. The automobile was traveling in excess of 80 miles per hour at the time of the collision, and chemical analysis of a blood sample drawn from Roberts’ body revealed that his blood alcohol level was .24 grams. There were no skid marks indicating that he had applied his brakes before hitting the truck.

The contract under which the appellants were working called for lane channelization to be accomplished through the use of lighted barricades or barrels, whereas the traffic cones being used by them for this purpose were not even reflectorized. The appellee contends that this contract violation, combined with other factors such as the absence of a warning sign on the ramp advising of the lane closure, the absence of flashing lights on the back of the water truck, and the fact that the truck had been left parked in a traffic lane rather than on the shoulder or emergency lane of the highway, combined to create such a dangerous situation as to justify the imposition of punitive as well as compensatory damages.

1. “Punitive damages ‘are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.’ [Cit.] In Georgia, when the tortious conduct amounts to ‘wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequencesQ’ punitive damages are allowed pursuant to OCGA § 51-12-5 to deter the wrongdoer from repeating his wrongful acts. [Cits.] Punitive damages cannot be imposed without a finding of some form of culpable conduct. Negligence, even gross negligence, is inadequate to support a punitive damage award. [Cit.]” (Emphasis supplied.) Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (365 SE2d 827) (1988).

The evidence in this case established without dispute that prior to Roberts’ arrival on the scene, traffic utilizing the entrance ramp in question had managed to negotiate the channelization area without incident, notwithstanding the appellants’ use of unlighted, unreflectorized traffic cones as channelization devices and notwithstanding their other alleged acts of negligence. Even construing the evidence in favor of the appellee, we find no reasonable basis under the circumstances for a conclusion that the appellants acted with malicious intent or with “conscious indifference to consequences” in failing to anticipate that a driver might come down the ramp at 80 mph, hit one of the traffic cones, and continue straight ahead for 300 feet, dragging the cone but not applying his brakes. We consequently hold that the trial court erred in denying the apellants’ motions for directed verdict and judgment notwithstanding the verdict with respect to the punitive damage claim.

2. The appellants’ remaining enumeration of error is rendered moot by the foregoing.

Judgment reversed.

Carley, P. J., and Beasley, J., concur.

Decided November 12, 1991

Reconsideration denied December 3, 1991

Goldner, Sommers, Scrudder & Bass, Stephen L. Goldner, for appellants.

Nickerson & Tuszynski, David E. Tuszynski, for appellee.