author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A92A2338.
    FLEEMAN v. DEPARTMENT OF HUMAN RESOURCES.
    (430 SE2d 135)
   Blackburn, Judge.

In March 1992, the state Department of Human Resources (“DHR”) filed an action against James Fleeman pursuant to OCGA §§ 19-11-5 and 19-11-6, seeking to recover child support benefits paid on behalf of a child DHR alleged was fathered by Fleeman and to establish Fleeman’s obligation for future child support payments. The trial court denied Fleeman’s motion to dismiss on the ground of res judicata, but certified the order for immediate review. We granted Fleeman’s application for interlocutory appeal, and this appeal ensued.

In support of his motion to dismiss, appellant filed a copy of the May 1990, final judgment and decree entered in a prior divorce action between appellant and the child’s mother. In its findings of fact made a part of that judgment, the court found that appellant and the mother had married in September 1989. The court also found that “[t]he parties have no minor children who are the issue of the marriage or the issue of the parties at anytime (sic) prior to or after the marriage.” Appellant contends that this judgment is binding on appellee as to the issue of his paternity of the child in question.

The doctrine of res judicata precludes readjudication of a claim already adjudicated between the parties or their privies in a prior action, and the doctrine of collateral estoppel provides the same bar as to issues previously adjudicated between the parties or their privies. McGuire v. Witcher, 201 Ga. App. 685, 686 (411 SE2d 875) (1991). The prior litigation of a divorce action between appellant and the mother resulted in a final judgment in which the court made a finding of fact that the parties had “no minor children who are the issue of the marriage or the issue of the parties.” Given this express finding by the court, we conclude that any issue of paternity was effectively adjudicated in the divorce action. See Macuch v. Pettey, 170 Ga. App. 467 (317 SE2d 262) (1984). The prior divorce action is distinguishable from the litigation in Pike v. Armburst, 117 Ga. App. 756, 757 (2) (161 SE2d 896) (1968) and English v. English, 119 Ga. App. 570 (168 SE2d 187) (1969) because in those cases paternity was merely alleged in the pleadings but no provision resolving the question of children or child support was included in the final decrees. Here, however, as in Macuch, supra, the issue of children was addressed and resolved in the final decree and judgment. Thus, any party who is bound by the judgment is precluded from relitigating the issue. See id. at 468 (1), 469 (2).

Consequently, the question presented by this appeal is whether, as appellant asserts, appellee is bound by the factfinding in the divorce judgment so that its claim in the instant action is barred by the doctrine of res judicata. “ ‘(W)hile res judicata applies only as between the same parties and upon the same cause of action to matters which were actually in issue or which under the rules of law could have been put in issue, estoppel by judgment [or collateral estoppel] applies as between the same parties [or their privies] upon any cause of action to matters which were directly decided in the former suit.’ [Cits.]” A. R. Hudson Realty v. Hood, 151 Ga. App. 778, 779 (1) (262 SE2d 189) (1979), overruled in part on other grounds, Merrill Lynch, Pierce, Fenner & Smith v. Zimmerman, 248 Ga. 580, 581 (285 SE2d 181) (1981); see Travelers Ins. Co. v. Commercial Union Ins. Co., 176 Ga. App. 305, 309 (335 SE2d 681) (1985). “ ‘Privies are all persons who are represented by the parties and claim under them, all who are in privity with the parties; the term privity denot[es] mutual or successive relationship to the same rights of property.’ [Cit.]” Roberts v. Hill, 81 Ga. App. 185, 186 (3) (58 SE2d 465) (1950).

Appellee has asserted claims against appellant under two provisions of the Child Support Recovery Act (the “Act”) (OCGA § 19-11-1 et seq.), OCGA §§ 19-11-5 and 19-11-6 (a). OCGA § 19-11-6 (a) provides that any recipient of public assistance paid for or on behalf of a child is deemed to have assigned to appellee the right to any child support claim owed for the child. Appellee’s claim under OCGA § 19-11-6 (a) may be asserted by appellee only as the assignee of the mother’s child support rights, and accordingly appellee stands in the shoes of the mother for purposes of the claim under OCGA § 19-11-6 (a). Allen v. Ga. Dept. of Human Resources, 262 Ga. 521, 524, n. 5 (423 SE2d 383) (1992). Appellee, as the mother’s assignee, is thus a privy of the mother as to the child support claim under OCGA § 19-11-6 (a). See Blakewood v. Yellow Cab Co., 61 Ga. App. 149, 150-151 (6 SE2d 126) (1939) (assignee has mutual or successive relationship with assignor and is privy of assignor). Consequently, absent fraud that would cause the divorce judgment to be set aside, Great Atlantic Ins. Co. v. Morgan, 161 Ga. App. 680 (288 SE2d 287) (1982), appellee is collaterally estopped from again adjudicating the paternity issue against appellant in an action under OCGA § 19-11-6 (a). See Travelers Ins. Co., supra (insurer, who stands in shoes of insured for purpose of subrogation claim, is estopped from litigating the issue of alleged tortfeasor’s liability to insured after prior litigation between insured and alleged tortfeasor resulted in judgment against insured); see also Dept. of Human Resources v. Brown, 196 Ga. App. 875, 876 (1) (397 SE2d 73) (1990) (consent decree in prior child support action adjudging that appellee was father of children precluded him from denying paternity in subsequent suit brought by DHR to recover past due child support payments).

OCGA § 19-11-5 establishes that the payment of any such public assistance creates a debt owed to the state by the parents responsible for the child’s support. For purposes of the Act, “parent” is defined as, inter alia, “the father of a child born out of wedlock if his paternity has been established in a judicial proceeding.” OCGA § 19-11-3 (5). In this action, appellee has sought to establish appellant’s paternity under the procedure set forth in OCGA § 19-7-40 et seq. “[T]hat legislative enactment is not intended to be exclusive, but rather is in addition to and cumulative of all existing laws governing matters of paternity and child support. [Cit.] Since the [procedure in OCGA § 19-7-40 et seq.] is not intended to vitiate other methods of adjudicating paternity, and since, in the case at bar, that issue has previously been determined in the course of divorce proceedings, [appellee] is precluded from relitigating the issue if [it] is bound by the prior judgment.” Macuch, supra at 468-469 (2).

Since under OCGA § 19-11-3 (5) a finding of paternity in another “judicial proceeding” is determinative of the issue of paternity in an action under the Act, the legislature necessarily intended that appellee would be a privy of the parties in such a proceeding and thus would be bound by such a judgment for purposes of its claims under the Act. Appellant’s paternity having been adjudicated in a judicial proceeding, see Macuch, supra at 468 (1), pursuant to OCGA § 19-11-3 (5) appellee is bound by the judgment in that prior proceeding and, absent fraud, is collaterally estopped from relitigating the issue of paternity in this action brought under OCGA § 19-11-5. See Macuch, supra at 468-470; see also Dept. of Human Resources v. Brown, supra.

Accordingly, we reverse the trial court’s denial of appellant’s motion to dismiss.

Judgment reversed.

Birdsong, P. J., Cooper, Andrews, Johnson, JJ., and Justice George H. Carley concur. Pope, C. J., McMurray, P. J., and Beasley, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that the language of the divorce decree entered on July 23, 1990, between James Fleeman and Allyson Fleeman stating that “[t]he parties have no minor children who are the issue of the marriage or the issue of the parties at anytime prior to or after the marriage” is too broad and incidental to resolve the issue of the child’s paternity and that, as a consequence, neither the child nor DHR is barred from challenging James Fleeman’s claim that he is not the father of the minor child. Further, it is my view that any attempt to resolve the child’s paternity in the prior divorce action is a nullity as there is no indication that the minor child was made a party to the prior divorce action or that the child’s interests were protected by a guardian ad litem (or any other party) as mandated by OCGA § 19-7-44 (a).

“ ‘ “[Collateral estoppel . . . only precludes readjudication of an issue already adjudicated between the parties or their privies in a prior action. (Cit.)” (Cit.)’ Stiltjes v. Ridco Exterminating Co., 197 Ga. App. 852 (399 SE2d 708) (1990).” McGuire v. Witcher, 201 Ga. App. 685, 686 (411 SE2d 875). In the case sub judice, the final judgment and decree of divorce between James Fleeman and Allyson Fleeman provides that “[t]he parties have no minor children who are the issue of the marriage or the issue of the parties at anytime prior to or after the marriage.” However, the child is not mentioned in the final judgment and decree of divorce and there is no evidence that the child’s paternity was actually tried and determined in the proceedings leading to the parties’ divorce. Nonetheless, the majority cites Macuch v. Pettey, 170 Ga. App. 467, 468 (2), 469 (317 SE2d 262), in support of the view that the prior divorce decree between James Fleeman and Allyson Fleeman constitutes an adjudication of the child’s paternity.

In Macuch v. Pettey, supra, the trial court dismissed a paternity action which had been filed several years after the entry of a final decree of divorce providing for custody and support of the parties’ minor child. On appeal, this court held that the paternity action is barred by the doctrines of res judicata and estoppel by judgment and reasoned that a settlement agreement, which was approved by the trial court and incorporated into the parties’ divorce decree, resolved the issue of paternity by referring to the minor child and providing for the child’s custody and support. Macuch v. Pettey, 170 Ga. App. 467 (1), 468, supra. The case sub judice is distinguishable as the divorce decree between James Fleeman and Allyson Fleeman neither identifies the minor child nor provides for the child’s custody and support. In fact, there is no indication that Allyson Fleeman’s minor child was recognized or that his rights were considered in the proceeding leading to final judgment and decree of divorce entered on July 23, 1990.

Decided March 17, 1993 —

Reconsideration denied March 23, 1993

Charles R. Desiderio, for appellant.

Lindsay A. Tise, Jr., District Attorney, Sherry S. Ellison, Assistant District Attorney, Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellee.

“A judgment in a divorce proceeding determining an incidental fact which may be relevant to paternity of a child is not res judicata of such fact as against the child whose paternity is in question. A judgment of divorce, making no provision for any child, rendered in an action in which it was alleged that there was no issue of the marriage, [does] not bind a person claiming to be the child of the husband in the divorce proceedings, where such person was not a party to the divorce proceedings and the issue of his parentage was not actually tried and determined therein.” 27A CJS 613, 614, Divorce, § 266 (b). See English v. English, 119 Ga. App. 570 (168 SE2d 187) and Pike v. Armburst, 117 Ga. App. 756, 757 (2) (161 SE2d 896). In the case sub judice, there is no evidence that the child was a party to the prior divorce action and there is nothing in the record indicating that the issue of the child’s paternity was actually tried and determined therein. Under these circumstances, neither DHR nor the child is bound by the broad and incidental language of the prior divorce decree. Accordingly, I would affirm the denial of James Fleeman’s motion to dismiss and allow DHR to seek resolution of the child’s paternity under OCGA § 19-11-13 and, if successful, recover past and future child support under OCGA §§ 19-11-5 and 19-11-6 (a).

Further, it is my view that any attempt to resolve the minor child’s paternity in the prior divorce action, without making the child a party to the action and without the appointment of a guardian ad litem as required by OCGA § 19-7-44 (a) or without otherwise protecting the child’s interests, is a nullity. See 70 ALR4th 1033.

I am authorized to state that Chief Judge Pope joins in this dissent.

       In this action, as in Macuch, paternity was adjudicated in a divorce action, not in a proceeding brought under OCGA § 19-7-40 et seq. Accordingly, OCGA § 19-7-44, cited by the dissent, does not apply.

       The majority states that DHR is privy to the prior divorce action by virtue of assignment of the mother’s child support rights under OCGA § 19-11-6 (a) and cites Allen v. Ga. Dept. of Human Resources, 262 Ga. 521, 524, n. 5 (423 SE2d 383), wherein the Supreme Court states that a “father should be able to raise against DHR whatever claims and defenses he might have had against the mother. . . .” Id. This logic may apply where DHR is only seeking to establish future child support under OCGA § 19-11-6 (a), but I do not believe the same logic applies when DHR is exercising its independent right to establish paternity under OCGA § 19-11-13 as in the case sub judice.


source: Caselaw Access Project

author: Johnson, Judge. Carley, Presiding Judge,

license: Public Domain

text:
    A92A2364.
    GROGAN et al. v. BENNETT et al.
    (430 SE2d 94)
   Johnson, Judge.

Peggy Grogan was driving on Georgia Highway 119, a rural two-lane highway. Just before dawn, as she approached the intersection of the highway with county road 362, she saw lights. County road 362 had a stop sign requiring that vehicles yield right-of-way to the traffic on Highway 119. When she saw activity at the intersection, Grogan lifted her foot off the gas pedal. According to her testimony, the next thing she knew, she saw a “wall” in front of her, and slammed on her brakes. Her car went into a skid and collided with an overturned tractor-trailer truck which had spilled its load of soybeans on the roadway.

Grogan brought this action against Stanley Bennett, the driver of the truck, and his employer, Gillis Brothers, Inc. Her husband asserted a claim for loss of consortium. The jury returned a verdict in favor of Grogan in the amount of $50,000, but returned a verdict for the defendants on the loss of consortium claim. In her appeal, Grogan raises six enumerations of error.

1. In her first enumeration of error, Grogan asserts that the trial court erred in charging the jury on contributory or comparative negligence. Grogan testified that she could not see the truck until it was immediately in front of her. Despite the fact that Bennett had not yet placed flares around the truck, Grogan “was under a duty to keep a proper lookout for potential hazards. ‘A driver has no right to assume that the road ahead of him is clear of traffic, and it is [her] duty to maintain a diligent outlook ahead.’ (Cits.)” Brown v. Shiver, 183 Ga. App. 207, 208 (1) (358 SE2d 862) (1987). Further, Grogan testified that she saw headlights as she approached the intersection.

“It is a well established rule that an instruction is not abstract or inapplicable where there is any evidence, however slight, on which to predicate it. To justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it.” (Citations and punctuation omitted.) Jenkins v. Burns, 202 Ga. App. 579 (415 SE2d 30) (1992). We conclude that the trial court did not err in charging the jury on comparative negligence.

2. Grogan next asserts that the trial court erred in charging the jury on avoidance. As discussed in Division 1 of this opinion, the issues of whether Grogan maintained a diligent lookout for dangers on the roadway and exercised due care for her own safety were appropriately submitted to the jury. Stroud v. Woodruff, 183 Ga. App. 628, 629 (2) (359 SE2d 680) (1987). The charge on avoidance was proper.

3. In her third enumeration of error, Grogan argues that the trial court erred in charging the jury that the driver of a motor vehicle has no right to assume that the road ahead of him is clear of traffic. This is a correct statement of the law, was applicable in this case, and was correctly presented to the jury. Williams v. Norred, 200 Ga. App. 528, 529 (408 SE2d 827) (1991); Leggett v. Brewton, 104 Ga. App. 580 (3) (122 SE2d 469) (1961).

4. At Grogan’s request, the trial court charged the jury on OCGA §§ 40-6-202 and 40-6-203 (vehicles on the roadway) to establish negligence per se. She asserts that the trial court erred in also charging the jury on OCGA § 40-6-204, relating to disabled vehicles, in that it applies to vehicles which are left in a roadway due to mechanical failure and not due to the negligence of the driver of the vehicle. Evidence was presented at trial regarding the circumstances of the accident which caused the truck to overturn and obstruct the roadway. The driver of the truck indicated that the condition of his brakes made it impossible for him to effect a safe stop. The charge, therefore, was justified by the evidence and we find no error. See Jenkins v. Burns, supra.

5. Grogan asserts that the trial court erred in not directing a verdict on the issue of liability. We disagree, but even if there was any such error, it was harmless since the jury returned a verdict in Grogan’s favor on the issue of liability. Gurly v. Hinson, 194 Ga. App. 673 (2) (391 SE2d 483) (1990).

6. Finally, Grogan contends that the trial court erred in denying the motion for new trial in that the verdicts for Mrs. Grogan on damages and against Mr. Grogan on his loss of consortium claim are inconsistent verdicts. Generally, a consortium action is derivative and when it is tried along with the primary action, a jury cannot render inconsistent verdicts. Nelson & Budd v. Brunson, 173 Ga. App. 856 (6) (328 SE2d 746) (1985). Reflecting on the derivative nature of the loss of consortium claim, we can see how it could be inconsistent in some cases to find damages on a loss of consortium claim when no damages are awarded to the principal plaintiff. It does not follow, however, that in every instance that an injury and resultant damages to one plaintiff necessarily results in a compensable claim for loss of consortium to the spouse. In Gurly v. Hinson, supra, we held that a jury, after evaluating the witnesses, the testimony and the evidence could find that the husband had suffered no compensable damage for loss of consortium. “Damages for loss of consortium are not capable of exact pecuniary measure and must be left to the enlightened conscience of impartial jurors taking into consideration the nature of the services, society, companionship and all the circumstances of the case.” (Citations and punctuation omitted.) Id. at 675. See Copelin v. Russell, 205 Ga. App. 540 (423 SE2d 6) (1992). Accordingly, the jury verdict must stand.

Judgment affirmed.

Pope, C. J., Birdsong, ■ P. J., Beasley, Cooper and Andrews, JJ., concur. McMurray, P. J., Carley, P. J., and Blackburn, J., concur in part and dissent in part.

Carley, Presiding Judge,

concurring in part and dissenting in part.

1. Because I find some evidence upon which to base the charges of which appellants complain, I must concur in Divisions 1-4 and in the affirmance of the judgment entered on the jury verdict in favor of Peggy Grogan. However, I wish to note that Jenkins v. Burns, 202 Ga. App. 579 (415 SE2d 30) (1992) and Stroud v. Woodruff, 183 Ga. App. 628, 629 (2) (359 SE2d 680) (1987), “[t]he cases most strongly relied on by [appellees,] are not in point. [This is a case] where [appellees’ truck] . . . had blocked the [intersection], and [appellants’ automobile] collided with the [truck]. The questions involved in [this case], of course, are materially different from the ones in [Jenkins and Stroud] where the [intersection] was clear as the [plaintiff] approached the [intersection], and the [vehicles] collided as they both entered the [intersection]. [Nevertheless, I agree that this] is not one of those cases where the questions of negligence and diligence are ones of law and not of fact. [Cits.]” Jones v. McCranie, 92 Ga. App. 505, 508 (1) (88 SE2d 849) (1955). See New Cigar Co. v. Broken Spur, 103 Ga. App. 395 (119 SE2d 133) (1961).

2. However, I cannot concur in the affirmance of the judgment entered on the jury verdict in favor of the defendants on Robert Grogan’s loss of consortium claim. In Division 5, the majority correctly states that it is not in every instance that an injury and resultant damages to one plaintiff necessarily results in a compensable claim for loss of consortium to the spouse. However, my review of the record in this case convinces me that the general rule applies here and that the verdict against Mr. Grogan on his loss of consortium claim is inconsistent with Mrs. Grogan’s recovery and cannot stand. “While there was evidence that [the wife] had been [injured several] years earlier . . . , there [is] evidence that the latest accident directly caused some injuries. . . . When the jury found for the wife, it, in effect, determined that [appellees] had caused her injury. The uncontradicted evidence shows that those injuries caused . . . the husband [some loss of consortium]. In other words, the same jury’s verdict for the wife could not logically preclude those damages sought by the husband which are directly derivative from the wife’s claim.” Clark v. Wright, 137 Ga. App. 720, 721-722 (1) (224 SE2d 825) (1976).

“In the case sub judice, the injured party has suffered significant injuries, has been awarded a substantial verdict for those injuries and the spouse has presented unrefuted evidence as to loss of consortium. Under these circumstances, the award of zero damages to the spouse is an inconsistent verdict entitling [Mr. Grogan] to a new trial on the issue of damages. [Cit.]” Nelson & Budd, Inc. v. Brunson, 173 Ga. App. 856, 859 (6) (328 SE2d 746) (1985). Compare Copelin v. Russell, 205 Ga. App. 540, 541 (423 SE2d 6) (1992) (where the “evidence would authorize a finding that appellant and her husband had a troubled marriage for personal reasons which pre-existed the automobile collision and which were in no way attributable thereto”) (emphasis supplied); Gurly v. Hinson, 194 Ga. App. 673, 675 (9) (391 SE2d 483) (1990) (where the “evidence on the consortium issue was not uncontradicted,” “the jury awarded the appellant wife a small amofint over the documented special damages,” (emphasis supplied) and the “jury could have determined that the appellant wife’s injuries were such that her husband suffered no compensable damage for loss of consortium”).

Decided March 10, 1993 —

Reconsideration denied March 23, 1993

Edenfield, Stone & Cox, Gerald M. Edenfield, Susan W. Cox, for appellants.

Dillard, Landers & Bower, Terry A. Dillard, Bryant H. Bower, Jr., for appellees.

Accordingly, I believe that Mr. Grogan is entitled to a new trial on the issue of damages for his claim for loss of consortium and I respectfully dissent as to Division 5.

I am authorized to state that Presiding Judge McMurray and Judge Blackburn join in this opinion.


author: Blackburn, Judge. Cooper, Judge,

text:
    A92A1680.
    WEAVER v. THE STATE.
    (430 SE2d 60)
   Blackburn, Judge.

The defendant, Gene Weaver, was convicted by a jury of possession of marijuana, obstruction of an officer, and reckless driving. On appeal, the defendant asserts that the trial court erred in denying his motion to suppress.

At the hearing on the pretrial motions, Agent William Butler, Jr., a supervisor with the South Georgia Task Force, testified that at approximately 10:30 on the morning of October 22, 1991, he received a telephone call from an anonymous male informant, who advised that the defendant and an acquaintance had left the Needmore community in a 1970s model maroon Chevrolet Impala and had in their possession several pounds of marijuana. He further advised that the defendant would be going a particular route and would go to the residence of one of them. Agent Butler, who had some familiarity with the defendant, failed to locate the men at any point on the designated route or at the residence of defendant Weaver on his first trip to such location. When Agent Butler later returned to defendant Weaver’s residence he spotted the vehicle described by the anonymous informant. Less than 15 minutes later, Agent Butler observed the subject vehicle leave defendant Weaver’s residence, but he did not see who entered the vehicle. Agent Butler, who had no knowledge of the identity of the occupants at that time, set out to stop defendant’s vehicle.

As the defendant proceeded toward a stop sign, officers Butler and Spurlin approached the defendant’s vehicle nearly head-on in their unmarked car, flashing lights and using the siren. At that time Agent Butler recognized the defendant. Defendant Weaver was the driver of the vehicle and when he saw Agent Butler, he quickly turned the vehicle around in the grass and fled at a high rate of speed. During the chase, Agent Butler saw the passenger door of the Impala open and close. The defendant continued driving at speeds in excess of 65 mph until he lost control of the vehicle, hit a telephone pole, and collided head-on with the agents’ vehicle. Defendant Weaver again attempted to flee the scene by backing up the Impala, but the attempt was unsuccessful because the vehicles had become enmeshed as a result of the collision. He was subsequently arrested by the agent while the passenger fled on foot to the woods surrounding the area. After defendant Weaver’s arrest, Agent Butler recovered a large green plastic bag of marijuana that had been seen on the driver’s side floorboard. Marijuana was also found on defendant Weaver.

Defendant enumerates as error the trial court’s denial of his motion to suppress based on a finding that the police had a reasonable suspicion to stop him, and further erred in concluding that the defendant’s flight provided the officers with sufficient probable cause to search the vehicle.

“ ‘The Supreme Court of the United States has held that when a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person within the meaning of the Fourth Amendment. Terry v. Ohio, 392 U. S. 1, 16 (88 SC 1868, 20 LE2d 889) (1968). To justify a warrantless intrusion of this nature, the state must be able to point to specific and articulable facts, which, together with rational inferences drawn therefrom, reasonably warrant the intrusion. Terry v. Ohio, supra; [cits.].

‘What is demanded of the police officer, as the agent of the state, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing. . . . “Where no circumstances at all appear which might give rise to an articulable suspicion (less than probable cause, but greater than mere caprice) that the law has been violated, the act of following and detaining a vehicle and its occupants must be judged as an impermissible intrusion on the rights of the citizen.” [Cit.]’ ” State v. Holton, 205 Ga. App. 434, 435-436 (1) (422 SE2d 295) (1992).

In Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301), the U. S. Supreme Court upheld an investigatory stop where the tip provided by an anonymous caller was sufficiently detailed and was corroborated by the observations of the police. According to the Court, “What was important was the [anonymous telephone caller’s] ability to predict [White’s] future behavior, because it demonstrated inside information. . . . The general public would have had no way of knowing that [White] would shortly leave the building, get in the described car, and drive the most direct route to [the stated destination]. . . . [Cit.]” (Emphasis omitted.) Alabama v. White, supra at 332.

In the case sub judice the information provided to the agents and their follow-up would not have justified an investigatory stop of the defendant because it was not based upon an articulable suspicion. The telephone call from the anonymous informant, whose reliability could not be established by the officer, did not adequately predict the future behavior of the defendant and his acquaintance and was not sufficiently corroborated by the agents. On the contrary, the defendant was not found en route to his home as predicted by the informant, but was found at his home, a fact which is arguably obvious and known to the general public as to where the defendant would likely be found.

However, we find that the defendant’s traffic violations, including driving at speeds in excess of 65 mph and his subsequent collision with a telephone pole as well as the vehicle driven by the agents, all of which occurred in the presence of the agents, were sufficient to authorize the agents to stop defendant’s vehicle; indeed, they had a duty to do so. “An individual’s flight upon seeing a police officer may be some evidence of guilt” and has been recently held by this court to provide officers with sufficient articulable suspicion to conduct a Terry “stop and frisk.” Harris v. State, 205 Ga. App. 813, 814 (423 SE2d 723) (1992); see also State v. Webb, 193 Ga. App. 2, 3 (1) (386 SE2d 891) (1989). Further, “ ‘[immediately (after the investigatory stop,) the plain view doctrine came into effect’ ” and the officers were authorized to conduct a warrantless search and seizure of objects viewed and immediately seen as being incriminating, such as the marijuana observed on the floorboard on the driver’s side of the defendant’s vehicle. Webb, id. at 5. Therefore, the defendant’s alternative argument is without merit.

We conclude that the defendant’s flight as he was approached by the agents as well as his subsequent collision with the telephone pole and the agents’ vehicle authorized the officers to stop the defendant and investigate the collision. Accordingly, the trial court properly denied the defendant’s motion to suppress.

Decided March 9, 1993 —

Reconsideration denied March 24, 1993

Dodd & Turner, Roger J. Dodd, for appellant.

H. Lamar Cole, District Attorney, A. Scott Gunn, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Cooper, J., concurs specially.

Cooper, Judge,

concurring specially.

I agree with the majority that the officers acted illegally when they initially blocked appellant’s vehicle. I also agree that by the time the officers finally stopped appellant, the stop was legal because the officers had actually witnessed appellant breaking the law, and that the contraband was properly seized pursuant to the plain view doctrine. I write separately only to emphasize that an individual’s flight — particularly when that flight is in response to illegal action on the part of police officers — cannot alone change an illegal stop into a legal one. Harris v. State, 205 Ga. App. 813 (1) (423 SE2d 723) (1992) does not hold otherwise, for in both Harris and Green v. State, 127 Ga. App. 713 (194 SE2d 678) (1972), on which the Harris decision relies, we noted the presence of other circumstances supporting an articulable suspicion or probable cause. Thus, in my opinion, appellant’s flight transformed an illegal stop into a legal one in this case only because appellant broke the law in the course of his flight.


author: Cooper, Judge.

text:
    A92A1684.
    HILL v. RODRIGUEZ et al.
    (429 SE2d 682)
   Cooper, Judge.

Appellant appeals from the judgment entered on a jury verdict.

In early 1984, Santos Rodriguez (hereinafter “Mr. Rodriguez”) entered into a partnership agreement with appellant for the purpose of purchasing real estate for investment purposes. Under the agreement, Mr. Rodriguez was to locate the property, and appellant was to supply the funds needed to purchase and repair the property. Mr. Rodriguez was also to be responsible for procuring the rental or sale of the property. Appellant told Mr. Rodriguez that for tax purposes the property purchased by the partnership should be titled in the name of Mr. Rodriguez’s wife. Appellant also told Mr. Rodriguez that Mrs. Rodriguez should execute a promissory note and deed to secure debt in favor of appellant to limit appellant’s liability and to protect appellant’s heirs. Mr. Rodriguez communicated this to his wife, and Mrs. Rodriguez agreed to have title to any property purchased placed in her name to be held in trust for the partnership.

In April 1984 and August 1984, appellant and Mr. Rodriguez purchased two houses for $10,279 and $11,000, respectively. At each respective closing, Mrs. Rodriguez executed promissory notes for the houses in the amounts of $25,000 and $30,000. Both promissory notes contained a provision stating that the notes were due and payable within six months of the execution of the notes. Mr. and Mrs. Rodriguez contend that based on the reasons given by appellant regarding why the security documents were being executed, they understood that foreclosure proceedings would not be instituted against Mrs. Rodriguez. Over the next several years, Mr. Rodriguez supervised the repairs on the houses, found renters for the houses, collected rent on the houses and secured contracts from several persons to purchase the houses. However, according to Mr. Rodriguez, appellant thwarted each of the sales. In 1988, appellant demanded full payment of both promissory notes and subsequently instituted foreclosure proceedings without any prior discussion with Mr. or Mrs. Rodriguez.

Mr. and Mrs. Rodriguez, appellees herein, sued appellant for breach of contract and fraud, seeking actual and punitive damages. Specifically, appellees alleged that appellant misrepresented his intentions with respect to the promissory notes and deed to secure debt. The case proceeded to a jury trial, and the jury returned a verdict awarding Mrs. Rodriguez the sum of $13,797.80 and awarding Mr. Rodriguez the sum of $35,850.28.

1. In five enumerations of error, appellant contends that the trial court erred in denying his motions for directed verdict and judgment n.o.v. and in entering judgment in favor of Mrs. Rodriguez on her claim of fraud. Appellant argues that since he made no representations directly to Mrs. Rodriguez and had no contractual or fiduciary relationship with her, Mrs. Rodriguez had no claim for fraud against appellant. In Florida Rock & Tank Lines v. Moore, 258 Ga. 106 (365 SE2d 836) (1988), the Supreme Court of Georgia expanded the boundaries of evidence necessary to show justifiable reliance in a fraud action. In that case, the court held that “the requirement of reliance is satisfied where ... A, having as his objective to defraud C, and knowing that C will rely upon B, fraudulently induces B to act in some manner on which C relies, and whereby A’s purpose of defrauding C is accomplished.” Id. at 107. “ ‘ “The jury is the final arbiter of the facts and the verdict must be construed by the trial and appellate courts in the light most favorable to upholding the jury verdict.” [Cit.]’ [Cit.]” Rosequist v. Pratt, 201 Ga. App. 45, 47 (4) (410 SE2d 316) (1991). There is evidence in the record from which the jury could have concluded that appellant, with the intent of defrauding both Mr. and Mrs. Rodriguez, made false representations to Mr. Rodriguez regarding his reasons for wanting the property titled in Mrs. Rodriguez’s name and his reasons for having Mrs. Rodriguez execute promissory notes and deeds to secure debt. Further, the record supports the conclusion that appellant knew Mr. Rodriguez would convey the reasons to Mrs. Rodriguez and that Mrs. Rodriguez would rely on the representations made by appellant to her husband. There being evidence to support the jury’s verdict as to Mrs. Rodriguez’s claim, we find no merit to appellant’s arguments.

Appellant also argues that there was insufficient evidence as to the amount of damages suffered by Mrs. Rodriguez. Mrs. Rodriguez sought actual and punitive damages for damage to her credit rating and her inability to obtain refinancing on her house due to the foreclosure. The jury’s verdict, which awarded her damages of $13,797.80, did not distinguish between actual and punitive damages and provided as follows: “We . . . further request that information be provided to the credit bureau to reestablish [Mrs. Rodriguez’s] credit in good standing. . . .” Mrs. Rodriguez testified that due to the foreclosure action instituted by appellant, she was denied a loan to refinance her house at a lower interest rate and was unable to refinance until such time as the interest rate was higher. She further testified that based on her calculations, she paid an additional $9,000 by not being able to refinance at the lower rate. It is clear from the jury’s verdict that the jury believed Mrs. Rodriguez’s credit rating had been damaged. Moreover, the verdict does not separate the actual damages from the punitive damages, and we find that there was sufficient evidence on which the jury based its award.

2. Appellant alleges in five enumerations of error that the trial court erred in denying his motions for directed verdict and judgment n.o.v. and in entering judgment in favor of Mr. Rodriguez. In the complaint against appellant, Mr. Rodriguez alleged both fraud and breach of fiduciary relationship. “ ‘Fraud may not be presumed, but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence.’ [Cit.]” Bob Maddox Dodge v. McKie, 155 Ga. App. 263 (1) (270 SE2d 690) (1980). Our review of the record reflects ample evidence to support both claims made by Mr. Rodriguez against appellant. Consequently, we cannot disturb the verdict. See Pappas v. Southeast &c. Dev., 202 Ga. App. 627 (3) (415 SE2d 190) (1992).

3. Appellant also argues that the trial court erred in charging the jury on consequential damages. Specifically, the portion of the charge objected to is the following: “Now ... as to Mrs. Rodriguez’s claim, Mrs. Rodriguez seeks damages for injury to her credit rating, and she does this as she alleges or contends that the damage to her credit rating was a consequence to the [appellant’s] alleged breach of contract and fraudulent aspects thereof.” Appellant contends that the charge authorized the jury to find in favor of Mrs. Rodriguez if they found fraud as to Mr. Rodriguez. It is axiomatic that “ ‘ “ ‘jury instructions must be read and considered as a whole in determining whether the charge contained error.’ ” ’ [Cit.]” Dept. of Transp. v. Hillside Motors, 192 Ga. App. 637, 640 (3) (385 SE2d 746) (1989). The trial court instructed the jury that Mr. and Mrs. Rodriguez were alleging separate claims against appellant and that the jury would have to return a separate verdict as to each of the claims. The jury returned separate verdicts and each was supported by the evidence. Accordingly, even if we assume arguendo that the charge was confusing, we find that no harm resulted to appellant.

Decided January 22, 1993 —

Reconsideration denied March 24, 1993

Bischoff & White, James A. White, Jr., for appellant.

Murray Z. Kahn, Gary C. Harris, for appellees.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A92A1702, A92A1703.
    MACON TELEGRAPH PUBLISHING COMPANY v. TATUM; and vice versa.
    (430 SE2d 18)
   Cooper, Judge.

Macon Telegraph Publishing Company (“appellant”), publisher of a daily newspaper in Macon, appeals from a jury verdict against it on two counts of invasion of privacy.

Nancy Tomlinson Tatum (“appellee”) shot and killed a male intruder in her bedroom around 4:00 a.m. on a Saturday morning. At the time the intruder was shot, he was walking toward her bed, with a knife in his hand, his pants unzipped and his penis exposed. The police cleared the case as a justifiable homicide. Appellant’s reporters received the name and address of appellee from the police, and although publication of the name of a victim of a sexual assault is illegal under the Georgia Rape Shield Statute (OCGA § 16-6-23), appellant published two articles about the incident, mentioning appellee’s name as well as the street on which she lived. Neither article stated that a rape or assault with intent to commit rape had occurred, but the headline of the first article announced “Macon Woman Kills Attacker in Bedroom” and the text included the statement that the intruder had his pants unzipped. The second article also described an attempted rape which occurred nearby years earlier.

Several factual issues were hotly contested at trial, including whether appellee’s name and address were already publicly available before appellant’s articles were published, whether appellee was in fact the victim of a sexual assault and whether the newspaper knew appellee was the victim of a sexual assault. Appellant’s reporters testified that the police gave them all the facts regarding the incident — including appellee’s name and address — unconditionally and without reservation, and that there was nothing in those facts or in the reporters’ conversations with the police to suggest that the incident was a sexual assault. Appellant also argued that the official police report classified the incident as a “burglary/justifiable homicide” without mentioning sexual assault, but did not place this report in evidence. On the other hand, the police testified that they made it clear to appellant’s reporters that they were treating the incident as a sexual assault. They further testified that they were reluctant to give out appellee’s name and finally did so only with the understanding that appellee’s name would not be published without her permission and that publication of her name otherwise would violate the Rape Shield Statute. With respect to the police report, one of the officers explained that the assault report in this case was not filled out as completely and diligently as it might have been in other cases since the assailant was dead and there was no one to prosecute. Appellant also presented testimony and argument suggesting that there was a police report containing appellee’s name and address which was publicly available prior to appellant’s publication. This was denied by several of appellee’s witnesses.

In its charge to the jury, the trial court specifically instructed the jurors that they could find appellant had invaded appellee’s privacy only (1) if the facts appellant published had not been made public before, (2) if appellee was the victim of a sexual assault, (3) if appellant knew or reasonably should have known appellee was the victim of a sexual assault and (4) if appellant nonetheless published appellee’s name in wilful or conscious disregard of the foregoing facts. The jury found against appellant on two counts of invasion of privacy (one for each article) and awarded appellee $15,000 in general damages and $35,000 in punitive damages on each, for a total of $100,000. In Case No. A92A1702, appellant challenges the judgment and award against it on numerous grounds. In Case No. A92A1703, appellee enumerates as error several evidentiary rulings which will need to be addressed only if we hold in Case No. A92A1702 that a new trial is warranted.

1. Appellant first argues that its motion for directed verdict should have been granted because imposition of civil liability based

on a newspaper’s publication of a rape victim’s name in violation of a criminal Rape Shield Statute is impermissible under The Florida Star v. B. J. F., 491 U. S. 524 (109 SC 2603, 105 LE2d 443) (1989). In Florida Star, the name of a rape victim was inadvertently released by police when they placed a written report of the incident with other news releases in a room to which the press and public had unrestricted access. A reporter-trainee for the defendant newspaper copied the report verbatim in the paper’s “Police Reports” section, including the victim’s name. The victim brought an action for civil damages against the paper, and the trial court granted a directed verdict for the victim on the issue of negligence, finding the paper negligent per se based on its violation of the Florida Rape Shield Statute. The United States Supreme Court reversed the judgment for the victim, holding that imposition of civil liability for violation of the Rape Shield Statute under the circumstances of that case was improper: “[Wjhere a newspaper publishes truthful information which it has lawfully obtained, punishment may be lawfully imposed, if at all, only when narrowly tailored to a state interest of the highest order.” 491 U. S. at 541. Although recognizing that protecting the privacy and safety of rape victims and encouraging rape victims to report the crimes against them without fear of exposure are “highly significant” state interests which might support imposition of liability under some circumstances, see id. at 537, the Court in Florida Star concluded that imposition of civil liability was not a narrowly tailored way to advance those interests in that case because of the presence of three overriding factors. First, the published information was released to the newspaper by agents of the State in the form of a news release, without restriction. If the media cannot rely on their right to publish contents of a news release put out by the State without restriction, self-censorship will result in a chilling of news dissemination. Id. at 538-539. Second, the negligence per se standard swept too broadly, for, “[u]nlike claims based on the common-law tort of invasion of privacy,” liability followed automatically from publication without case-by-case findings of, among other things, scienter. Id. at 539-540. Third, the Court concluded that, because the Rape Shield Statute applied only to the media, liability for negligence per se based on violation of that statute was underinclusive and thus not narrowly tailored to the purposes it purportedly served. Id. at 540-541. The Court emphasized the narrowness of its holding in Florida Star, explicitly leaving open the possibility that imposing liability for publishing the name of a rape victim might be warranted under other circumstances. Id. at 537, 541; see also Dorman v. Aiken Communications, 398 SE2d 687, 689, nn. 2, 4 (S. C. 1990).

Because none of the three factors emphasized by the Supreme Court in Florida Star is applicable to the facts of the instant case, we do not agree with appellant’s contention that Florida Star bars its liability. First, the police in this case did not issue a news release containing appellee’s name, and the reporters’ testimony that the police gave them appellee’s name without restriction and/or in a written police report was rejected by the jury. The fact that the information was not obtained from a news release issued by the State without reservation, together with the fact that the jury in this case had to find wilful and conscious disregard of appellee’s rights .in order to find liability, serves to diminish if not totally eliminate the Court’s concerns in Florida Star about overdeterrence and self-censorship. Second, liability in this case was based on the common-law tort of invasion of privacy, not on negligence per se for violating the Georgia Rape Shield Statute. Indeed, in discussing the constitutional problems presented by the negligence per se standard applied by the trial court in that case, the Florida Star Court specifically contrasted the negligence per se standard with an invasiori-of-privacy analysis which would provide for the case-by-case factual findings constitutionally required. And third, the same distinction — that the instant case is based on generally applicable invasion-of-privacy law rather than on violation of a statute — also eliminates concerns regarding underinclusiveness. Because the Rape Shield Statute provides only a statement of public policy and not the basis for liability (see Division 2, infra), any individual or entity could be liable for invasion of privacy if they wilfully violated appellee’s rights in this manner, even if they were not guilty of violating the statute. The trial court instructed the jury that it could find appellant liable only if it found, among other things, that the published information was not a matter of public record prior to publication and that appellant published the information in wilful and conscious disregard of appellee’s rights. Under these circumstances, we conclude that imposition of liability for invasion of privacy for publishing the name of a rape victim is not precluded by Florida Star.

2. Appellant next contends that its motion for directed verdict should have been granted because the evidence was insufficient to establish invasion of privacy as a matter of law. More specifically, it argues that publication of information regarding a crime victim can never support an action for invasion of privacy because such information is a matter of legitimate public interest, citing Waters v. Fleetwood, 212 Ga. 161 (91 SE2d 344) (1956). The legally protected right to privacy is limited by rights of speech and of the press, and the two sets of rights must be balanced so that neither is allowed to destroy the other. See Pavesich v. New England Life Ins. Co., 122 Ga. 190, 204-205 (50 SE 68) (1905). As a general matter, a crime is a matter of legitimate public interest, and a publication in connection therewith cannot violate the privacy rights of a crime victim because the vietim’s privacy interest is outweighed by First Amendment interests in free expression regarding matters of legitimate public interest. See Waters, supra at 167. By passing the Georgia Rape Shield Statute, however, the Georgia Legislature has stated as a matter of public policy that, where the crime involved is rape, sexual assault or attempted sexual assault, the legitimate public interest in the identity of the victim does not outweigh the victim’s privacy interest. Although the Rape Shield Statute is a criminal statute, the statement of public policy it embodies applies equally in the context of civil liability, effectively negating the rationale underlying Waters and rendering it inapplicable in situations like that presented here. Accordingly, Waters also does not preclude appellee’s invasion-of-privacy action.

In the same enumeration of error, appellant further argues that it cannot be liable for invasion of privacy because the published information was already publicly available. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (95 SC 1029, 43 LE2d 328) (1975). However, evidence was presented which supports a finding that the published information was not already publicly available, and pursuant to the trial court’s instructions, the jury had to find that the information was not already publicly available in order to render the verdict it did.

3. In its third enumeration of error, appellant argues that the Georgia Rape Shield Statute is unconstitutionally overbroad. This specific constitutional issue was not directly ruled upon by the trial court and thus is not properly presented for appellate review. See Grice v. State, 199 Ga. App. 829 (1) (406 SE2d 262) (1991). If it were, this case would have to be transferred, as exclusive jurisdiction over cases in which the constitutionality of a statute is drawn into question is in the Supreme Court. Pruitt v. State, 203 Ga. App. 125, 127 (3) (416 SE2d 524) (1992); Ga. Const. 1983, Art. VI, Sec. VI, Par. II (1).

4. Appellant asserts that the trial court impermissibly restricted its cross-examination of a police officer with regard to alleged contradictions between his testimony that he told the reporters the incident was a sexual assault and the failure of the police incident report to mention the sex-related nature of the incident. However, before any objection was made, appellant was able to ask numerous questions regarding these alleged contradictions, fully driving home its point. Accordingly, even if we assume that appellant’s line of questioning was proper impeachment despite the fact that the witness did not author the report, see Estes v. State, 165 Ga. App. 453 (2) (301 SE2d 504) (1983), the trial court’s termination of that line of questioning after appellant was able to make its point to the jury is not reversible error. See Sanders v. State, 181 Ga. App. 117, 121-122 (3) (351 SE2d 666) (1986).

5. In its fifth enumeration of error, appellant argues that the trial court erred in instructing the jury on damages pursuant to both OCGA § 51-12-5 (punitive damages) and § 51-12-6 (damages where entire injury is to plaintiff’s peace, happiness or feelings), thereby allowing a double recovery. See Westview Cemetery v. Blanchard, 234 Ga. 540, 546 (216 SE2d 776) (1975). It does not appear that the trial court charged on OCGA § 51-12-6 as asserted. In any case, we need not address the merits of this enumeration since the record reveals that, although appellant objected to the jury charge on punitive damages on the grounds that there was no evidence to justify a punitive damage award, it did not object to the charge on the grounds that punitive damages would constitute a double recovery. Accordingly, appellant did not properly preserve this issue by “stating distinctly the matter to which he objects and the grounds of his objection,” OCGA § 5-5-24 (a), and the error alleged is not the type of “substantial error in the charge which was harmful as a matter of law” warranting review under OCGA § 5-5-24 (c) despite appellant’s failure to preserve the issue. See Sanders v. Hughes, 183 Ga. App. 601, 603 (2) (359 SE2d 396) (1987).

6. Appellant also contends that the trial court erred in disallowing the testimony of its expert on journalistic standards. This enumeration is without merit because minimum standards of journalism were irrelevant to any material issue in the case, and a trial court does not err in excluding irrelevant testimony. OCGA § 24-2-1.

7. Next, appellant asserts that the trial court’s instruction on invasion of privacy was erroneous and contrary to Waters, supra. This argument is essentially identical to that discussed in Division 2. For the reasons set forth there, the instructions given in this case, requiring that the jury find that the published facts were not a matter of public record prior to publication and that appellant published in wilful disregard of appellee’s rights in order to find that appellant invaded appellee’s privacy, properly incorporated the First Amendment concerns expressed in Florida Star and Cox into general invasion-of-privacy law.

8. In its final enumeration of error, appellant challenges the trial court’s refusal to give its requested charge that it could not be liable for harm resulting from the conduct of third parties, relying on Tucker v. News Pub. Co., 197 Ga. App. 85 (2) (397 SE2d 499) (1990). However, the requested charge comes from the portion of Tucker discussing actions for intentional infliction of emotional distress. Because no issue of intentional infliction of emotional distress was submitted to the jury for determination, the requested charge was inapplicable to the facts of the instant case, and the trial court did not err in refusing to give it.

Decided February 15, 1993 —

Reconsideration denied March 24, 1993

Anderson, Walker & Reichert, Walter H. Bush, Jr., Susan S. Cole, for appellant.

Adams & Hemingway, William P. Adams, Albert Pearson III, for appellee.

Hull, Towill, Norman & Barrett, David E. Hudson, Edward J. Tarver, amici curiae.

9. Because we affirm the trial court’s judgment and no new trial is necessary, the evidentiary issues raised by appellee in Case No. A92A1703 need not be addressed.

Judgments affirmed.

McMurray, P. J., and Blackburn, J., concur.

       Appellant continues to maintain that there was and is no “objective evidence” of sexual assault, despite the fact that appellee shot the intruder while he was advancing toward her in her bedroom with a knife in one hand and his exposed penis in the other. However, the jury found as fact that appellee was the victim of an assault with intent to commit rape, and this finding is supported by evidence in the record.


author: Beasley, Judge.

text:
    A92A1715.
    THE STATE v. TATE.
    (430 SE2d 9)
   Beasley, Judge.

The question for decision is whether the stop of Tate’s car by Deputy Sheriff Shields was lawful under the Fourth Amendment to the United States Constitution. Ruling that it was not, the trial court granted Tate’s motion to suppress evidence of cocaine seized by Deputy Shields from within Tate’s car. The basis for the court’s conclusion that the stop was not lawful was its conclusion that, based on the facts as found, a reasonable officer would not have made the traffic stop in the absence of an ulterior motive to interdict drugs. In other words, the court wrote, the stop was “unreasonably pretextual.”

What follows are the facts as found by the trial court. Since they are supported by evidence in the record, we accept them. “[T]he trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. Lego v. Twomey, 404 U. S. 477 (1972); [cits.].” Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975). “ ‘The [trial] court’s findings of fact are viewed under the clearly erroneous standard; . . .’” United States v. Harris, 928 F2d 1113 (11th Cir. 1991).

“FACTS

“At approximately 1:00 a.m. on October 3, 1992, Defendant, O’Dell Tate, was traveling north on Interstate 75 (1-75) in a blue 1979 Oldsmobile Cutlass. As he crossed the line dividing Cobb and Cherokee Counties into Cherokee County he passed the patrol vehicle of Cherokee County Deputy Sheriff Charles Shields. Deputy Shields was in a stationary position off the right side of the interstate observing traffic traveling north.

“Deputy Shields’ attention was drawn to Defendant’s vehicle because it appeared not to have a tag. He pulled onto the interstate and pulled within 100 feet of the Defendant’s vehicle where he was able to observe the vehicle did have a tag but had no tag light. Deputy Shields continued to follow the Defendant and after pulling within 50 feet of his vehicle, observed the vehicle move off into the emergency lane, then drift back across the right lane and the two left tires of Defendant’s vehicle barely went over the line between the right lane and the middle lane. By this time, Deputy Shields’ patrol car was only 20 to 30 feet behind the Defendant’s vehicle. After the Defendant’s vehicle again drifted across into the emergency lane, Deputy Shields activated his blue lights and pulled the Defendant over to investigate his erratic driving.

“After both vehicles came to a stop and as Deputy Shields approached the Defendant’s car on foot, the Defendant remained in his car with the door open and his legs outside the vehicle. At Deputy Shields direction, the Defendant exited his vehicle and walked to the rear of his vehicle and in front of the patrol car. As requested, the Defendant then presented his driver’s license and proof of insurance.

“Deputy Shields then advised the Defendant that he had pulled him over for weaving and for not having a tag light. When the Defendant responded that he was very tired, Deputy Shields inquired about where he was coming from. Defendant responded that he had been to a night club in Atlanta. At this point, Deputy Shields observed a change in the Defendant’s ‘body language.’ The Defendant appeared nervous and began tugging at his clothes, at one time even exposing himself. Defendant explained that he was scared to death because he had just gotten out of prison for possession of a firearm by a felon. Deputy Shields then inquired what other trouble he had been in. The Defendant said ‘Armed Robbery’ and some other things.

“After this conversation, Deputy Shields subjected the Defendant to several field sobriety tests which led Deputy Shields to conclude that the Defendant was not under the influence of alcohol or drugs. The Defendant was then issued a warning ticket for weaving and no tag light.

“Deputy Shields then advised the Defendant that ‘we had a problem with people hauling illegal drugs, large amounts of cash and illegal weapons up and down the interstate,’ and asked the Defendant if he had any of that ‘stuff’ with him. The Defendant said no. Deputy Shields then asked the Defendant for consent to search his vehicle. At first the Defendant agreed, but later withdrew his consent after Deputy Shields produced a written consent form.

“Deputy Shields then radioed his supervisor, Lt. Robbie Bishop, who was also patrolling Interstate 75 a short distance away, and requested Lt. Bishop to bring a narcotics dog to sniff the Defendant’s car. After overhearing this radio communication, the Defendant became nervous and agitated and said something about delivering ‘it.’ He also said that he had not been paid and that the drugs were on the floor board of the car.

“Deputy Shields then looked through the window of Defendant’s car with a flashlight and observed a white paper sack with a clear ziplock bag sticking out of it on the floorboard of the passenger side. Shields also saw a white residue on the inside of the plastic bag. He removed the bag, examined the contents and found what he believed to be cocaine. Defendant was then placed under arrest and given Miranda warnings. Lt. Bishop arrived on the scene shortly thereafter.

“Interstate 75 runs the entire length of Georgia. Only 2.2 miles of the interstate fall within Cherokee County. These 2.2 miles form the southwestern boundary between Cherokee and Cobb counties.

“Lt. Bishop and Deputy Shields are the only officers assigned to the K-9 division of the Cherokee County Sheriff’s Department. The K-9 division was started in 1990 by Lt. Bishop. Its mission is to assist the Department in tracking fugitives and narcotics investigations by using certified tracking and narcotics detection dogs. The primary function however, is narcotics investigation and each officer is assigned a dog that is certified in narcotics detection.

“Lt. Bishop has attended five different accredited schools which certified him as a handler of dogs used in narcotics detection as well as other police work. He trained and certified the dogs now assigned to the officers in the K-9 division. He is the most qualified person in the Cherokee County Sheriff’s Department in recognizing drug couriers and interdicting illegal drugs transported in vehicles by using narcotics detection dogs.

“Deputy Shields was trained by Lt. Bishop. He is the second most qualified officer in the Cherokee County Sheriff’s Department in recognizing drug couriers and interdicting illegal drugs transported in vehicles by using narcotics detection dogs.

“Lt. Bishop is also the supervisor of the Selective Traffic Enforcement Patrol to which Deputy Shields is also assigned. At the direction of their superiors, Lt. Bishop and Deputy Shields focus their attention on traffic enforcement on the 2.2 miles of 1-75 in Cherokee County. They spend 75% of their time patrolling these 2.2 miles between the hours of 7:00 p.m. and 4:00 a.m. and always have drug detection dogs in their vehicles. All other members of the Selective Traffic Enforcement Unit are assigned patrol duties in the remainder of Cherokee County.”

To these facts, the trial court applied the test for determining the validity of investigatory stops: “in determining when an investigatory stop is unreasonably pretextual, the proper inquiry ... is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.” United States v. Smith, 799 F2d 704, 709 (11th Cir. 1986). In Smith, the trial court had found that no traffic violation had occurred, and the appellate court concluded that there was not even probable cause to believe that a traffic violation had occurred or was occurring. Id. at 709.

In this case the court found that defendant was issued a warning ticket for the offenses of weaving (OCGA § 40-6-40 et seq.) and no tag light (OCGA § 40-2-41) and found that there was evidence of each. It also found that the officer stopped the defendant “to investigate his erratic driving.” This was supported by the evidence, for the officer testified that he activated his blue lights to stop defendant because the slowing down and repeated weaving was an indication of possible DUI (OCGA § 40-6-391). The court did not find that the weaving and manner of driving were caused by the presence or actions of the police vehicle. The officer also testified that it was his regular practice to stop cars exhibiting such activity as defendant’s to investigate for DUI, and that when he is sitting observing traffic, he is watching for speeders and erratic drivers who “can cause wrecks.” The court noted that the officer subjected defendant to several field sobriety tests.

“ ‘[The trial court’s] application of the law to [the] facts is subject to de novo review.’ ” United States v. Harris, supra at 1116 (1). Whether the facts support a reasonable suspicion of criminal conduct and whether a reasonable officer would have stopped the vehicle in the absence of an invalid purpose are legal and thus de novo questions. Harris, supra at 1116 (2).

As we read the trial court’s order, it found that the officer’s primary motivation for making the stop was to interdict drugs and it concluded that the stop was therefore unreasonably pretextual. However, as articulated in Smith, supra, and reiterated in, e.g., United States v. Bates, 840 F2d 858, 860 (4) (11th Cir. 1988), the standard for pretextual stops is measured by “ ‘ “an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,” and not on the officer’s actual state of mind at the time the challenged action was taken.’ ” The finding of an improper or even illegitimate motivation does not render the stop an unreasonable one. The validity of the stop depends on what the driver was doing and what that reasonably conveyed to the officer, not on what else the officer thought might be occurring.

Here the facts as found by the trial court were that there were traffic offenses occurring in the officer’s presence, i.e., no tag light and weaving. Even assuming, considering the nature of the tag light violation and the degree of the weaving, that a reasonable officer would not have stopped the car for these as such, the weaving and the slowed driving late at night constituted reasonable suspicion that defendant was driving while intoxicated. An investigatory stop “must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” Smith, supra at 707. Accord Evans v. State, 183 Ga. App. 436, 438 (2) (359 SE2d 174) (1987).

We must conclude that, based on all the facts as found by the trial court, a reasonable officer would have made the stop, for as the federal court said in Bates, supra at 860: “the patrol officers of Georgia are charged with enforcing Georgia’s traffic laws, and this court can presume no less than that a patrol officer would obey this mandate.” As written by Judge Hill in his special concurrence in United States v. Hardy, 855 F2d 753, 762 (11th Cir. 1988): “One who violates traffic laws is not, because he appears to be a drug courier, immunized from arrest.” Or, as articulated in Williams v. State, 187 Ga. App. 409, 411 (1) (370 SE2d 497) (1988): “A rule requiring a law enforcement officer to forego making a traffic stop which he would otherwise be authorized to make merely because he suspects that the vehicle might be engaged in the transport of illicit drugs would have little to commend it. ...”

Contrary to the trial court’s conclusion, the traffic stop did not constitute merely a pretext to legitimate an impermissible stop to obtain evidence of additional criminal activity. Accord Hardy, supra at 756-757 (1).

Traffic stops which resulted in the arresting officers’ uncovering evidence of drug possession or trafficking have been upheld on the ground that the drivers had committed traffic violations within the observation of the law enforcement officers who had stopped them. Guerrero v. State, 198 Ga. App. 397 (1) (401 SE2d 749) (1991); O’Keefe v. State, 189 Ga. App. 519, 521 (1) (376 SE2d 406) (1988); Williams v. State, supra; Lombardo v. State, 187 Ga. App. 440, 441 (2) (370 SE2d 503) (1988); Whisnant v. State, 185 Ga. App. 51, 52 (1) (363 SE2d 341) (1987); Lopez v. State, 184 Ga. App. 31 (1) (360 SE2d 722) (1987); Steward v. State, 182 Ga. App. 659, 660 (1) (356 SE2d 890) (1987); United States v. Harris, supra at 1116 (2); United States v. Hardy, supra at 756 (1); United States v. Bates, supra.

Decided January 4, 1993 —

Reconsideration denied March 24, 1993 —

Garry T. Moss, District Attorney, Gregory A. Hicks, Assistant District Attorney, for appellant.

John R. Hesmer, Jane P. Manning, for appellee.

In contrast, traffic stops have been held to be unlawful where the defendants committed no traffic violations, and the stops, though based on drug courier profiles, were not justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Brown v. State, 188 Ga. App. 184 (372 SE2d 514) (1988); Tarwid v. State, 184 Ga. App. 853 (1) (363 SE2d 63) (1987); United States v. Miller, 821 F2d 546, 549 (2) (11th Cir. 1987); United States v. Smith, supra.

The facts in this case distinguish it from Tarwid where defendants were stopped sometime after midnight because they were driving 45 to 50 mph and traffic was generally moving at 60 to 65 mph; Brown, where defendant’s vehicle made a quick lane change to get out of the way of the law enforcement vehicle which had its blue lights activated; Miller, where defendant allowed his right wheels to cross over the lane marker about four inches and drove in that manner for approximately six-and-one-half seconds; and Smith, where the officer observed the right side of the defendant’s car weave approximately six inches into the emergency lane and then slightly within the lane in which it was traveling, which was attributed to the driver taking his eyes off the road and looking at the flashing lights of the patrol car as he was being stopped. This case is more akin to Guerrero, where defendant was stopped after an officer observed him weaving three times on an interstate highway.

We make no judgment about the validity of the officer’s actions after the warning ticket was issued, as that subsequent part of the encounter was not challenged, ruled on, or raised on appeal.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.

       The state constitutional guarantee against unreasonable searches and seizures, 1983 Ga. Const., Art. I, Sec. I, Par. XIII, was not invoked.

       On motion for reconsideration, appellant attached as an exhibit a copy of a letter from the trial judge to counsel for both parties concerning this court’s original opinion. It is not part of the record nor are the statements made therein a part of the order under review or a modification or amendment to it. Consequently, it cannot be considered.


text:
    A92A1767.
    J & A PIPELINE COMPANY, INC. v. DeKALB COUNTY.
    (430 SE2d 13)
   Cooper, Judge.

Appellant, a provider of labor and materials for a public project, appeals from the trial court’s dismissal of its complaint against DeKalb County (hereinafter “the county”) for failure to state a claim as well as lack of jurisdiction and improper venue.

Because this appeal is from the grant of a motion to dismiss based in part on the complaint’s failure to state a claim, we view the pleadings in a light most favorable to appellant. Wehunt v. ITT Business &c. Corp., 183 Ga. App. 560 (2) (359 SE2d 383) (1987). In September 1990, the county contracted with WDC Contractors, Inc. (“WDC”), a general contractor, to provide improvements to its park system; and WDC in turn contracted with appellant to provide labor and materials for the project. WDC gave the county a payment bond with Contractors Surety & Fidelity Company, Ltd. (“CSFC”) as surety. CSFC, which was not authorized to do business in Georgia, attached to the payment bond the affidavit of its attorney-in-fact, in which he stated under oath that CSFC “is the fee simple owner of real estate equal in value to the amount of the bonds to be filed in connection with the doing of any public work in DeKalb County, Georgia over and above any and all liens, encumbrances, and exemption rights allowed by law, all as more particularly set forth on the ‘Schedule of Real Estate’ attached hereto.” See OCGA § 36-82-102. However, a look at this schedule reveals that the most valuable listed asset was not a fee simple interest in real estate and that the description of several other assets was legally inadequate for any purpose: “Douglas County — 2Vz acres”; “Elder Co. Arizona — 240 acres”; and “Mountain View Sub. — Lots 19, 20 & 21, Blk 26.” Only two of the listed parcels of real estate had adequate descriptions. One of these parcels was in Georgia but provided only $46,000 of equity for security; the other provided $3,050,000 but was in Hollywood Hills, California. Nonetheless, the county accepted the bond without any further inquiry.

When WDC failed to pay appellant all the monies due for labor and materials on the project, appellant filed a formal payment bond claim. The county sent appellant a copy of the bond, affidavit and schedule of real estate, and appellant’s investigation revealed that CSFC was insolvent. Appellant then sued, WDC, CSFC and the county in Gwinnett County, the county of residence of WDC. The county moved to dismiss, and the trial court granted the motion, concluding both that appellant’s complaint failed to state a claim against the county and that jurisdiction and venue with respect to the county were improper in Gwinnett. Appellant went on to obtain judgments on the merits against WDC and CSFC, both of which are judgment-proof, and then brought, this appeal.

1. In three enumerations of error, appellant argues that the trial court erred in concluding that its complaint failed to state a valid claim against the county based on the county’s breach of its statutory duty. “ ‘A motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.’ [Cit.]” Mitchell v. Dickey, 226 Ga. 218, 220 (1) (173 SE2d 695) (1970); accord Hall & Sosebee Trucking Co. v. Smith, 201 Ga. App. 282, 283 (410 SE2d 784) (1991).

A county cannot enter into a contract with a general contractor unless the general contractor provides “[a] payment bond with good and sufficient surety ... for the use and protection of all subcontractors and all persons supplying labor, materials, machinery, and equipment in the prosecution of the work provided for in the contract.” (Emphasis supplied.) OCGA § 13-10-1 (b) (2) (A); see also OCGA § 36-82-101. “If the payment bond . . . required in paragraph (2) of subsection (b) of Code Section 13-10-1 ... is not taken in the manner and form required in this Code section, the corporation or body for which work is done under the contract shall be liable to all subcontractors and to all persons furnishing labor, skill, tools, machinery, or materials to the contractor ... for any loss resulting to them from such failure.” OCGA § 36-82-102. These statutes together impose a duty on the county to require a payment bond, and provide for liability on the part of the county if it breaches this statutory duty. See City of Atlanta v. United Elec. Co., 202 Ga. App. 239, 240 (2) (414 SE2d 251) (1991); Kelly Energy Systems v. Bd. of Commrs., 196 Ga. App. 519 (396 SE2d 498) (1990).

The issue presented here is the intended nature of that duty. The county contends, and the trial court held, that the county fulfilled its duty under OCGA §§ 13-10-1 and 36-82-101 et seq. as a matter of law when it went through the formality of obtaining a payment bond, regardless of whether the surety was “good and sufficient” or even whether the documents supporting the bond and other circumstances surrounding the transaction made it unreasonable to approve and file the bond without further inquiry into whether the surety was “good and sufficient.” We disagree. The county’s position elevates form over substance, ignoring and undermining the purpose of the Act, which is to protect subcontractors and materialmen. See Huddleston Concrete Co. v. Safeco Ins. Co., 186 Ga. App. 531, 533 (1) (368 SE2d 117) (1988). Moreover, the county’s suggested construction ignores the language of the statute, rendering the phrase “good and sufficient” meaningless, “thereby violating the rule that, where possible, ‘effect is to be given to all the words of a statute.’ [Cit.]” Saleem v. Bd. of Trustees &c. of Atlanta, 180 Ga. App. 790, 791 (2) (351 SE2d 93) (1986). Contrary to the county’s contention, OCGA § 1-3-1 (c), which provides in part that “substantial compliance with any statutory requirement, especially on the part of public officers, shall be deemed and held sufficient,” does not negate the possibility that the county had the duty to act reasonably and exercise due diligence; it simply indicates the county would not be liable if it substantially complied with that duty. In similar situations involving public officials accepting bonds under other statutes we have held that mere formalities are not enough. For example, in Atlas Supply Co. v. U. S. Fidelity &c. Co., 126 Ga. App. 483, 484 (1) (191 SE2d 103) (1972), we held that a county clerk discharging a materialman’s lien upon acceptance of a bond has the duty to exercise due care and diligence in determining the surety’s solvency and sufficiency; and in Dunn v. U. S. Fidelity &c. Co., 45 Ga. App. 249 (164 SE 480) (1932), we held that a sheriff releasing seized property after accepting a replevy bond with an insolvent surety is liable for damages caused thereby if he fails to exercise due care and diligence under the circumstances. Similarly, we conclude here that, while a county is not absolutely liable whenever a surety on a payment bond is insolvent, it may be liable under OCGA § 36-82-102 if it fails to inquire adequately into the solvency and sufficiency of the surety where the circumstances surrounding the transaction make such failure to engage in further inquiry unreasonable.

The county also argues that its duty was fulfilled as a matter of law because it obtained from the surety the affidavit required by OCGA § 36-82-102, which states in pertinent part: “If the surety named in the [bond] is other than a surety company authorized by law to do business in this state, such [bond] shall not be approved and filed unless such surety makes and files an affidavit with such [bond], stating under oath that he is the fee simple owner of real estate equal in value to the amount of the [bond] over and above any and all liens, encumbrances, and exemption rights allowed by law.” However, the affidavit requirement set forth in the quoted sentence is clearly intended to be in addition to rather than instead of the requirement that the surety be approved as “good and sufficient.” It would make no sense to allow a lesser standard for acceptance of bonds with sureties not authorized to do business in this state than for those who are so authorized, and there is no language in the statute which would suggest, much less compel, such a result.

The Legislature amended OCGA § 13-10-1 in 1991 — after the bond in this case was accepted — to provide that the required payment bond “shall be approved as to form and as to the solvency of the surety by the officer of the [public entity] who negotiates the contract on behalf of the public entity.” OCGA § 13-10-1 (f). The county acknowledges that it may now have a duty beyond the mere formality of obtaining a document purporting to be a bond and a supporting affidavit where required but asserts that we can only conclude that appellant states a claim in this case by effectively holding that this new requirement applies retroactively. We do not accept this assertion. Rather, we conclude that this 1991 amendment explicitly clarified the previously implicit understanding that a surety is not “good and sufficient” unless it is solvent. Cf. Abacus, Inc. v. Hebron Baptist Church, 201 Ga. App. 376, 377 (411 SE2d 113) (1991).

In this case, facts and circumstances rendering the county’s failure to make further inquiry unreasonable could be proved within the framework of the complaint. See Mitchell v. Dickey, supra. Accordingly, appellant’s complaint should not have been dismissed for failure to state a claim based on breach of the county’s statutory duty.

2. Appellant argues in two enumerations of error that its complaint also stated a valid claim against the county based on an “equitable lien,” citing Pembroke State Bank v. Balboa Ins. Co., 144 Ga. App. 609 (241 SE2d 483) (1978). No mechanic’s lien may be filed against public property, see Whitley v. Bryant, 59 Ga. App. 58 (200 SE 317) (1938), and appellant cannot rely on equity to establish a lien-based claim against the county which is disallowed by law. Cf. Decatur County v. Roberts, 159 Ga. 528, 534 (2) (126 SE 460) (1925) (implied contract will not arise where express contract by local government unauthorized by law); OCGA § 36-1-4 (county not liable to suit for any cause of action unless made so by statute). Pembroke does not hold the contrary. However, Pembroke does hold that a subcontractor may have an “equitable lien” in funds held by the county but belonging to another — such as funds already earned by a general contractor but not yet paid over to it when it becomes insolvent. In such a situation, the subcontractor’s “lien” would allow its claim priority over the claims of the insolvent contractor’s other creditors. See Pembroke, supra. Under this theory, appellant has a claim based on an “equitable lien” only if and to the extent the county is holding a fund of monies earned by WDC but not yet paid to it. The county argues no such fund exists. However, since the existence of such a fund is provable within the framework of appellant’s complaint, see Mitchell v. Dickey, supra, this claim also should not have been disposed of by motion to dismiss.

3. In three enumerations of error, appellant contends that the trial court erred in alternatively dismissing its claim for lack of jurisdiction and improper venue. Appellant first argues that the county was properly sued in Gwinnett County because WDC, the county’s alleged joint obligor, was a resident of Gwinnett County, and suits against joint obligors residing in different counties may be tried in either county. Ga. Const, of 1983, Art. VI, Sec. II, Par. IV; OCGA § 9-10-31. However, WDC and the county cannot be considered “joint obligors,” as the obligation of WDC arose from its breach of a contractual promise to pay appellant while the alleged obligation of appellee arose from the alleged breach of its statutory duty to require a good and sufficient payment bond. Appellant’s reliance on Eatonton Oil &c. Co. v. Greene County, 53 Ga. App. 145 (4) (185 SE 296) (1936) is misplaced because that case, while establishing the possibility that the county may face statutory liability, did not involve jurisdiction or venue and did not describe the county’s potential statutory liability as “joint” with the contractual liability of the general contractor.

Appellant next argues that, even if WDC and the county were not “joint obligors,” the trial court should have exercised its discretion to entertain appellant’s claims against the county because they arose out of the same general transaction as appellant’s claim against WDC. See Natpar Corp. v. E. T. Kassinger, Inc., 258 Ga. 102, 104 (1) (365 SE2d 442) (1988). In Natpar, the trial court had jurisdiction over the nonresident defendant as a joint obligor of the resident defendant and venue was proper as to the plaintiff’s claim against the resident and nonresident defendants based on their joint obligation. However, the plaintiff brought a second claim for injunctive relief against the nonresident defendant only. Although venue as to that second claim would normally have been improper, the Supreme Court in Natpar held that under those circumstances — where the court has jurisdiction over all the parties and is the proper venue for one claim but is not the proper venue for another claim arising from the same transaction — the trial court has the discretion to entertain that second, “pendent” claim if doing so will promote judicial economy, convenience to the litigants and witnesses, and fairness to the parties. Id. at 104. In the instant case, the trial court did not have jurisdiction over appellee as a joint obligor and was not the proper venue with respect to any claim against appellee. Thus, the trial court had no discretion to entertain any additional, pendent claims and properly concluded that it did not have jurisdiction over appellee and that venue was improper.

However, appellant correctly points out that the appropriate course of action for a court presented with a meritorious motion to dismiss for lack of jurisdiction or venue is to treat the motion as one for transfer and to transfer the case pursuant to the Uniform Transfer Rules, 251 Ga. 893-895 (1984). See also Ga. Const, of 1983, Art. VI, Sec. I, Par. VIII; Uniform Superior Court Rule 19.1. We therefore remand this case to the trial court with instructions to transfer it to the Superior Court of DeKalb County for further proceedings consistent with this opinion.

Decided February 8, 1993 —

Reconsideration denied March 24, 1993

James B. Ritchie, for appellant.

Patrick F. Henry, Jr., Albert S. Johnson, for appellee.

McReynolds & Welch, Michael Welch, Bryant, Davis & Cowden, Larry S. Bryant, Cynthia L. Weese, Aiken & Ward, Frederic S. Beloin, Gleaton, Scofield, Egan & Jones, M. Michael Egan, Jr., Charles H. Fails, Steven H. Ballard, Leonard E. Smith, amici curiae.

Judgment reversed and remanded with direction.

McMurray, P. J., and Blackburn, J., concur.

       CSFC provided this same affidavit in support of several different payment bonds for several different public projects in DeKalb County. Accordingly, there are numerous other subcontractors and materialmen in the same position as appellee, with judgments or potential judgments against general contractors and CSFC but no solvent party from whom they can collect. Several of these other subcontractors and materialmen provided us with amicus briefs, which we have read and considered.