author: McMurray, Presiding Judge.

text:
    A92A1984.
    COHEN v. NORTHSIDE BANK & TRUST COMPANY. LEVENTHAL v. NORTHSIDE BANK & TRUST COMPANY.
    A92A1985.
    (428 SE2d 354)
   McMurray, Presiding Judge.

Plaintiff The Northside Bank & Trust Company filed this suit on a note against defendants Cohen, Marett, and Leventhal. The note dated December 11, 1989, provided for a loan in the principal amount of $163,850 and a finance charge of $21,300.50, an annual percentage rate of 13 percent. The principal was to be repaid on December 11, 1990, and interest was payable monthly beginning January 11, 1990. The three defendants attended the closing of the transaction at plaintiff’s place of business. All three of the defendants signed the note and endorsed a check for the principal amount of the loan. Defendant Marett exchanged the endorsed check for two new checks in the amounts of $145,000 and $18,850. The smaller check was deposited with plaintiff in a pledged savings account in Marett’s name from which the monthly interest payments on the loan were withdrawn. This action resulted after the scheduled repayment of the principal of the loan was not made and defendants failed to respond to plaintiffs demands for payment. Defendants Cohen and Leventhal separately appeal from the grant of summary judgment in favor of plaintiff against all three defendants. Held:

1. Both Cohen and Leventhal maintain that they were accommodation makers of the note, and that as such, they were discharged by virtue of plaintiff’s conduct. Even though Cohen and Leventhal are liable under the note they executed as co-makers (Brice v. Northwest Georgia Bank, 186 Ga. App. 871, 872 (368 SE2d 816)), they may establish by parol evidence that the true capacity in which they executed the note was as accommodation parties and thereby establish their rights as sureties. Spillers v. First South Bank, 185 Ga. App. 580, 582 (365 SE2d 151); Bank South v. Jones, 185 Ga. App. 125, 126 (1) (364 SE2d 281); Bank of Terrell v. Webb, 177 Ga. App. 715 (1) (341 SE2d 258); Deems v. Wilson, 114 Ga. App. 341 (1) (151 SE2d 230). “While knowledge that an accommodation party is an accommodation party does not lessen the liability of the accommodation party, it subjects the holder who does not have the rights of a holder in due course to the danger that his conduct with respect to the accommodated party may discharge the accommodation party in accordance with principles of suretyship law.” Anderson, Uniform Commercial Code § 3-415:25, pp. 356, 357 (3rd ed.).

Cohen and Leventhal present two arguments in support of their contention that they were discharged by plaintiff’s conduct. Both arguments relate to the arrangement for the use of the pledged savings account. First, they argue that they were exposed to increased risk in that Marett was permitted to borrow the funds used to pay monthly interest rather than pay the interest out of his own funds. OCGA § 10-7-22. Secondly, they argue that the arrangement for use of the pledged savings account amounted to a change in the terms for the repayment of the note and thus a novation which discharged them in the absence of their consent to the change. OCGA § 10-7-21. Both of these arguments are couched in terms of suggesting that the arrangement for use of the pledged savings account amounted to a deviation from the terms of the note as agreed to by Cohen and Leventhal. However, the evidence shows no deviation from the terms of the note and we find no conflict between the terms of the note and the arrangement at issue. The state court did not err in concluding that no issue concerning the discharge defenses remained for jury determination.

2. Cohen and Leventhal also contend that genuine issues of material fact exist as to whether the note is usurious. This contention is predicated on the assumption that the $18,850 deposited in a pledged savings account in Marett’s name was a prepayment of interest. Based on this assumption, it is argued that such a prepayment of the principal would cause the interest rate to exceed the five percent per month allowed under OCGA § 7-4-18. See in this connection In re Evans, 130 BR 357 (Bkrtcy. S. D. Ga. 1991) and Norris v. Sigler Daisy Corp., 260 Ga. 271 (392 SE2d 242) for explanations of the math and law involved. In In re Evans, the bankruptcy court found that a nonrebatable prepaid finance charge resulted in a rate of interest greater than five percent for the first month. While Cohen and Leventhal suggest that a factual question is presented in the case sub judice as to whether “the prepaid interest or ‘interest reserve’ would be refundable if the loan in the case at bar were paid in full shortly after its inception,” this view avoids the factual distinctions between In re Evans and the present case. Even if the pledged savings account might arguably constitute a reserve such as described in OCGA § 7-4-18 (a), it does not constitute a prepayment since the funds were held in Marett’s name, and indeed, he drew interest on the funds deposited in the account. Since there was no prepayment of interest, there is no question as to whether such a prepayment would be refundable in the cases sub judice. On this basis, In re Evans may be distinguished on the facts and it may be concluded that the funds in the pledged savings account, or reserve, would remain in Marett’s name upon any prepayment of the loan principal so that, in order to determine compliance with OCGA § 7-4-18, these funds should be amortized over the life of the loan as was done in Norris v. Sigler Daisy Corp., 260 Ga. 271, supra. When these calculations are made, it is apparent that there is no violation of OCGA § 7-4-18.

3. Finally, Cohen contends that genuine issues of material fact remain as to his defense that he had been fraudulently induced to sign the note. No actual misrepresentations on the part of plaintiff are alleged or proven. Cohen’s defense of fraud is predicated on the silence of plaintiff, that is, the failure of plaintiff to disclose the plan to establish the pledged savings account as a reserve from which interest payments would be made and to reveal that the loan proceeds were to be used by Marett for living expenses. “Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” OCGA § 23-2-53. However, in the case sub judice, there were no circumstances as would create a confidential relationship between plaintiff and Cohen so as to impose upon plaintiff a duty to disclose any knowledge it had as to the matters at issue. Curtis v. First Nat. Bank of Commerce, 158 Ga. App. 379, 380-381 (1) (280 SE2d 404); Boatman v. Citizens &c. Nat. Bank, 155 Ga. App. 848, 850 (2) (273 SE2d 190); Limoli v. First Ga. Bank, 147 Ga. App. 755, 757 (250 SE2d 155). The state court did not err in granting plaintiff’s motion for summary judgment.

Decided January 14, 1993

Reconsideration denied February 26, 1993

Small, White & Marani, Gus H. Small, Jr., William J. Reedy, Karen F. White, for Cohen.

Ronald S. Leventhal, pro se.

Glass, McCullough, Sherrill & Harrold, R. Phillip Shinall III, Thomas K. Carroll, Jr., Deborah L. Britt, for appellee.

Judgments affirmed. Cooper and Blackburn, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A92A2090.
    SCOVILL FASTENERS, INC. v. SURE-SNAP CORPORATION et al.
    (428 SE2d 435)
   McMurray, Presiding Judge.

Plaintiff Scovill Fasteners, Inc. filed this contract action against defendants Sure-Snap Corporation and Contitrade Services Corporation, both of whom were served under the provisions of Georgia’s Long Arm Statute, OCGA § 9-10-91. Each of the defendants moved for dismissal of plaintiff’s complaint on the ground of lack of personal jurisdiction over the person due to the absence of actions on their part which amounted to purposefully established minimum contacts with Georgia. Plaintiff appeals from the grant of defendants’ motions. Held:

“Our precedents establish that a defendant who files a motion to dismiss for lack of personal jurisdiction has the burden of proving lack of jurisdiction. Easterling v. Easterling, 231 Ga. 90 (200 SE2d 267) (1973); Smith v. Smith, 223 Ga. 551 (156 SE2d 916) (1967). A motion to dismiss for lack of personal jurisdiction must be granted if there are insufficient facts to support a reasonable inference that defendant can be subjected to the jurisdiction of the court. To demonstrate that the court lacks jurisdiction, defendant may raise matters not contained in the pleadings. However, when the outcome of the motion depends on unstipulated facts, it must be accompanied by supporting affidavits or citations to evidentiary material in the record. See Uniform Superior Court Rule 6.1. See also Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (366 SE2d 223) (1988). Further, to the extent that defendant’s evidence controverts the allegations of the complaint, plaintiff may not rely on mere allegations, but must also submit supporting affidavits or documentary evidence. Id. at 846.

“The trial court considering a motion to dismiss for lack of jurisdiction has discretion to hear oral testimony or to decide the motion on the basis of affidavits and documentary evidence alone pursuant to OCGA § 9-11-43 (b). McPherson v. McPherson, 238 Ga. 271 (232 SE2d 552) (1977). If the motion is decided on the basis of written submissions alone, as was the motion in this case, disputes of fact found in the affidavits are resolved in favor of plaintiff. See generally, C. Wright and A. Miller, 5 Federal Practice and Procedure, § 1351 (West 1969, 1989 Supp.). Further, if a motion is decided on the basis of the written submissions, the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard. Cf. Carole Lyden Smith Enterprises, Inc. v. Mathew, 193 Ga. App. 320 (387 SE2d 577) (1989).” Beasley v. Beasley, 260 Ga. 419, 420 (396 SE2d 222).

The first count of plaintiff’s complaint seeks a recovery from defendant Sure-Snap on an unsecured promissory note. Sure-Snap is a New York Corporation which, until June 30, 1991, maintained an office in Miami. The note in question was executed pursuant to a confirmed Chapter 11 plan approved by the bankruptcy court in Miami, was executed in Miami, and is dated January 2, 1989.

Plaintiff and Sure-Snap are parties to a nonexclusive distributor agreement dated September 13, 1989, under which Sure-Snap accepts appointment as a distributor for the sale of plaintiff’s products for a term of ten years. Under a buy-back provision of this contract plaintiff agrees under certain circumstances to buy back certain attaching machines from Sure-Snap. The buy-back agreement provides for an offset by which the purchase price of the machines tendered back to plaintiff is reduced by amounts owed on the 1989 promissory note. The nonexclusive distributor agreement was negotiated in New York, provides that it is governed by New York law, and contains a New York address for plaintiff.

Count 2 of the complaint seeks a recovery for a sum owed for goods ordered by Sure-Snap pursuant to the nonexclusive distributor agreement. These orders were placed by a Sure-Snap employee in either New York or Miami who telephoned plaintiff’s sales representative and the goods were shipped to Sure-Snap in either New York or Miami.

Defendant Contitrade is an assignee of certain of Sure-Snap’s rights under the nonexclusive distributor agreement with plaintiff, including those arising under the buy-back provision. Plaintiff consented to the assignment agreement which was negotiated and executed in New York. Plaintiff has been notified by Contitrade of its intention to require plaintiff to buy back certain machinery under the buy-back provisions of the nonexclusive distributor agreement. No employee or agent of Contitrade has traveled to Georgia in connection with this transaction and the only contact by Contitrade with plaintiff related to Georgia has been approximately four telephone calls and five letters. In Count 3 of its complaint, plaintiff seeks a declaration of its rights in light of the assignment to Contitrade and the fourth count raised similar issues and sought reformation of the terms of the nonexclusive distributor agreement.

In its order granting defendants’ motions to dismiss, the superior court relied on the following excerpt from Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892 (380 SE2d 303): “Georgia’s Long Arm Statute states that the courts of this State may exercise personal jurisdiction over any nonresident as if he were a resident of the State, if in person or through an agent he: ‘(1) Transacts any business within this State. . . .’ This has been interpreted to mean that ‘purposeful acts’ must have been performed by the defendant to tie it to the State, and ‘(m)ere telephone or mail contact with an out-of-state defendant, or even the defendant’s visits to this state, is insufficient to establish the purposeful activity with Georgia required by the “Long Arm” statute. The United States Supreme Court has held that an individual’s contract with an out-of-state party alone cannot automatically establish sufficient minimum contacts in the other party’s home forum, and that the contract is ‘ “ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction.” It is these factors — prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing — that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.’ ” (Citations omitted.) Id. at 893.

Plaintiff acknowledges that Mayacamas is a correct statement of the applicable principles of law, but contends that the case sub judice may be distinguished on the facts. Since we do not agree, the judgment of the superior court is affirmed.

Plaintiff suggests that Mayacamas is distinguishable because of the lengthy course of dealing between plaintiff and Sure-Snap when compared to the relatively isolated contract for the purchase of an airplane in that case. However, the lengthy course of dealing to which plaintiff refers, whatever transactions between plaintiff and Sure-Snap preceded the promissory note, are not disclosed by any evidence in the record. The promissory note itself reflects the judgment of the bankruptcy court, is not illustrative of any contractual relationship which preceded it, and has no connection with Georgia.

The more recent relationship between plaintiff and Sure-Snap as shown by the nonexclusive distributor agreement fails to demonstrate any significant connection with Georgia. The nonexclusive distributor agreement was negotiated and signed in New York, states a New York address for both parties to the contract, and by its terms is to be construed under the law of that state. The individual orders placed by Sure-Snap with plaintiff while submitted via telephone calls to Georgia were nothing more than the contemplated consequences of the nonexclusive distributor agreement. While plaintiff has argued that certain “Conditions of Sale,” incorporated by reference into the nonexclusive distributor agreement, provided that these individual orders be construed as Georgia contracts, this contention is not supported by the record. As noted in Mayacamas, mere mail and telephone contact and even defendant’s visits to this state are insufficient to establish the purposeful activity required under the Long Arm Statute. The conduct of defendant Sure-Snap has not included the purposefully directed activities as would establish a tie or minimum contacts with Georgia sufficient to provide a basis for Sure-Snap anticipating being haled into court in Georgia.

The superior court’s analysis of the circumstances in the case sub judice is focused in large part upon the physical location of the defendants when they conducted negotiations or executed various contracts. However, as demonstrated in White House v. Winkler, 202 Ga. App. 603, 604 (415 SE2d 185), there is no prerequisite to jurisdiction requiring that a defendant has ever been physically within Georgia while executing a contract or conducting negotiations, and the physical location from which a defendant conducts negotiations or executes documents is not alone determinative of whether a defendant has established minimum contact with the forum. While the evidence of record in the case sub judice establishes that plaintiff’s New York office did not handle the Sure-Snap account, it does demonstrate that plaintiff and Sure-Snap conducted business in New York. Indeed, their business relationship was controlled by the contract negotiated and executed in New York rather than by the incidental contacts with Georgia which arose as contemplated consequences of the New York contract.

Plaintiff’s arguments that Georgia may properly exercise jurisdiction in regard to defendant Contitrade are predicated in large part on Contitrade’s status as assignee of defendant Sure-Snap. Insofar as Contitrade stands in the shoes of Sure-Snap such provides no support to plaintiff’s position. Neither does the assignment contract create any tie with Georgia. Finally, the notice to plaintiff in Georgia that Contitrade chose to exercise its rights under the buy-back provision of the nonexclusive distributor agreement does not alter our view of the status of the parties as such was no more than a contemplated consequence of the nonexclusive distributor agreement. The superior court did not err in granting defendants’ motions to dismiss. Klein v. Allstate Ins. Co., 202 Ga. App. 188 (413 SE2d 777); Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892, supra. The motion of defendant Contitrade for imposition of frivolous appeal penalty pursuant to Court of Appeals Rule 26 (b) is denied.

Judgment affirmed. Cooper and Blackburn, JJ., concur.

Decided February 26, 1993.

Kimzey, Kimzey & York, M. Keith York, for appellant.

Lefkoff, Duncan, Grimes & Miller, Joseph Lefkoff, Kimberly A. Richardson, Palmer & Berman, Jeffrey N. Berman, for appellees.


text:
    A93A0237.
    POPE v. THE STATE.
    (428 SE2d 439)
   McMurray, Presiding Judge.

Defendant Pope appeals his conviction of the offense of aggravated assault. Held:

The sole enumeration of error alleges a violation of defendant’s rights as stated in Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215), in that the trial court refused to order that defendant be permitted to examine the pre-trial statement of a State’s witness. “Brady v. Maryland, 373 U. S. 83, 87, [supra] and Moore v. Illinois, 408 U. S. 786 [(92 SC 2562, 33 LE2d 706)] (1972), ruled that due process was violated where the prosecution suppressed requested evidence which was favorable to the accused and material either to guilt or punishment. Our cases require that to prevail on such a point, an appellant must indicate the materiality and the favorable nature of the evidence sought. Pryor v. State, 238 Ga. 698, 706 (234 SE2d 918) (1977); McGuire v. State, 238 Ga. 247, 248 (232 SE2d 243) (1977); Wisdom v. State, 234 Ga. 650, 652 (217 SE2d 244) (1975); Hicks v. State, 232 Ga. 393, 396 (207 SE2d 30) (1974).” Stevens v. State, 242 Ga. 34, 35 (1), 36 (247 SE2d 838). In the case sub judice, defendant has failed to carry this burden. Indeed, defendant’s trial counsel stated that he did not know whether the statement in issue was exculpatory or not. While appellate counsel now contends that the statement at issue was exculpatory, no particulars are provided such as might satisfy defendant’s burden. “ ‘Georgia law does not provide that statements given prior to trial by key prosecution witnesses be generally made available for discovery by the defendant in a criminal case.’ Walter v. State, 256 Ga. 666, 668 (352 SE2d 570). It is well-recognized that ‘Brady does not require the prosecution to open its files for general inspection by the defense or for pre-trial discovery.’ Hicks v. State, 232 Ga. 393, 396 (207 SE2d 30); Julian v. State, 134 Ga. App. 592 (3) (215 SE2d 496).” Boatright v. State, 192 Ga. App. 112 (2), 113 (385 SE2d 298). Defendant having failéd to show any type of Brady violation or prejudice arising therefrom, the enumeration of error is without merit. Cromer v. State, 253 Ga. 352, 358 (6) (320 SE2d 751); Brown v. State, 201 Ga. App. 98 (1) (410 SE2d 196).

Decided February 26, 1993.

Mundy & Gammage, Miles L. Gammage, for appellant.

William A. Foster III, District Attorney, Donald N. Wilson, Blanchette C. Holland, Assistant District Attorneys, for appellee.

Judgment affirmed. Cooper, J., concurs. Beasley, J., concurs in judgment only.


author: Cooper, Judge.

text:
    A91A1262.
    FINDLEY v. DAVIS et al.
    (429 SE2d 174)
    Decided March 1, 1993.

      Jones, Brown, Brennan & Eastwood, Taylor W. Jones, Rebecca A. Copeland, for appellant.

      Troutman, Sanders, Lockerman & Ashmore, William N. With-row, Jr., A. William Loeffler, for appellees.
   Cooper, Judge.

In accordance with the decision of the Supreme Court of Georgia in Davis v. Findley, 262 Ga. 612 (422 SE2d 859) (1992), that part of our previous judgment at 202 Ga. App. 332 (2) (b) (414 SE2d 317) (1991) reversing the trial court’s grant of summary judgment on appellant’s claim for legal malpractice based on excessive fees allegedly charged by appellees is vacated and the judgment of the trial court is affirmed. Our reversal of the trial court’s grant of summary judgment as to the sufficiency of appellant’s expert’s affidavit, id. at 333-334 (1), is not affected by the Supreme Court’s decision.

Judgment reversed in part and affirmed in part. Pope, C. J., and Birdsong, P. J., concur.


text:
    A91A1285, A91A1286.
    CORIM, INC. v. BELVIN et al.; and vice versa.
    (430 SE2d 187)
   Cooper, Judge.

In Corim, Inc. v. Belvin, 202 Ga. App. 396 (414 SE2d 491) (1991), this Court reversed the judgment of the trial court in Case Nos. A91A1285 and A91A1286. On certiorari, the Supreme Court of Georgia reversed the decision of this Court with respect to Case No. A91A1285, which had the effect of mandating that the trial court order involved in that case be affirmed. However, the Supreme Court’s decision on certiorari did not affect the judgment of this Court in Case No. A91A1286. The opinion in Corim, Inc. v. Belvin, 205 Ga. App. 325 (422 SE2d 676) (1992) incorrectly stated that both judgments were affirmed and that opinion is hereby vacated. Accordingly, the judgment of the Supreme Court is made the judgment of this Court and the judgment of the trial court in Case No. A91A1285 is affirmed and the judgment of the trial court in Case No. A91A1286 is reversed.

Decided March 1, 1993.

Geiger & Pierce, James N. Geiger, for appellant.

Byrd & Anthony, Garland T. Byrd, Walker, Hulbert, Gray & Byrd, David G. Walker, James C. Marshall, for appellees.

Martin, Snow, Grant & Napier, Edward J. Harrell, Long, Aldridge & Norman, W. Stell Huie, Phillip A. Bradley, Barbara A. McIntyre, amici curiae.

Judgment affirmed in Case No. A91A1285; judgment reversed in Case No. A91A1286. Pope, C. J., and Birdsong, P. J., concur.


author: Blackburn, Judge.

text:
    A92A1745.
    JORGENSEN v. THE STATE.
    (428 SE2d 440)
   Blackburn, Judge.

The appellant, David Jorgensen, was found guilty of driving under the influence by the trial court sitting without a jury. On appeal from the conviction and sentence entered by the trial court, the appellant asserts that the trial court erred in denying his motion to suppress.

The evidence adduced at trial shows that on January 18, 1992, a roadblock was set up by Officer Steve Seawell of the City of Atlanta Police Department on Lindbergh at Interstate 85. The roadblock was located approximately 200 feet from the entrance to an apartment complex. At approximately 2:00 a.m., Officer Seawell observed the appellant, who was traveling on Lindbergh, turn into the entrance of the apartment complex in a normal fashion. The appellant was driving a white 1991 BMW automobile with a dealer’s drive-out tag. Based solely upon his intuition, Officer Seawell decided to stop the appellant and pursued him into the complex. The officer further testified that “I did not think he lived there.” No articulable reason was given by the officer for his stop of the appellant other than his intuition. As the appellant exited his car to go into one of the apartments, the officer pulled up behind him. The appellant was not free to leave per officer Seawell’s testimony. Shortly thereafter, a field sobriety test was administered to the appellant and produced a reading of .14 grams. This appeal followed the trial court’s conviction of the appellant based upon evidence seized after the officer’s investigatory stop.

In his sole enumeration of error, the appellant contends that the trial court erred in denying his motion to suppress the evidence seized, because the officer lacked probable cause or an articulable suspicion that a crime had been committed by the appellant at the time of the unlawful stop.

“ ‘Although an officer may conduct a brief investigative stop of a vehicle, [cit.], such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 1883, 20 LE2d 889, 909) (1968); [Cit.] Investigative stops of vehicles are analogous to Terry-stops, Terry, supra, and are invalid if based upon only “unparticularized suspicion or ‘hunch,’ ” 392 U. S. at 27 (88 SC at 1883, 20 LE2d at 909).’ [Cit.] ‘An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. (Cits.)’ [Cit.]” Evans v. State, 183 Ga. App. 436, 438 (2) (359 SE2d 174) (1987). “[T]his suspicion need not meet the standard of probable cause, [but] must be more than mere caprice or a hunch or an inclination. [Cit.]” State v. Smith, 137 Ga. App. 101, 102 (223 SE2d 30) (1975).

It is undisputed that the appellant did not commit a traffic offense or otherwise violate the law at the time that he, according to the testimony of the arresting officer, “slowed down and made a turn into an apartment complex just before the roadblock,” “just as any person who was visiting or residing in that apartment complex would have.” The apartment complex was located approximately 200 feet from the roadblock. The officer testified that when he saw the appellant turn into the entrance of the complex, he did not think that the appellant lived there because he was driving a 1991 BMW M3 with a dealer’s tag, and “most of the people living [in the apartment complex] are Hispanic people,” and “most of them don’t have much money.” The record is devoid of any articulable fact which would support the officer’s intuition that the appellant was avoiding the roadblock. For example, there was no indication in the record of any sharp driving maneuver, sudden turn or reduction in speed or other facts which might tend to show that the appellant’s actions were evasive. The officer indicated in his response to a question posed to him by the trial judge that “it was just his intuition” that the appellant was turning into the apartment complex to avoid the roadblock. As this court has stated in Smith at 101, intuition is insufficient to “give rise to an articulable suspicion.”

Decided March 1, 1993.

Robert W. Chestney, for appellant.

Louise T. Hornsby, Solicitor, for appellee.

The officer’s stop of the appellant after he exited the car was unjiistified in that the officer did not observe the commission of a crime by the appellant before the stop and during his testimony, did not state any facts that would indicate that the appellant was about to violate the law in any manner. We find that the stop by the officer violated the appellant’s Fourth Amendment rights and the evidence acquired as a result of the unlawful stop was improperly admitted by the trial judge. To hold otherwise would expose citizens to intrusions based solely upon the mere subjective beliefs of individual officers. Accordingly, the trial court erred in denying the appellant’s motion to suppress.

Judgment reversed. McMurray, P. J., and Cooper, J., concur.


text:
    A92A1785.
    BROWNING v. THE STATE.
    (428 SE2d 441)
   Blackburn, Judge.

The defendant, Bruce Browning, was convicted by a jury of theft by taking a motor vehicle and sentenced to five years’ imprisonment. The defendant subsequently moved for a new trial, and in support of this motion, filed several affidavits, including affidavits from two of the jurors and an affidavit from the victim. Following a hearing and consideration of the arguments, briefs, record and transcript, the trial court denied the defendant’s motion for new trial, from which he appeals.

At trial, the victim testified that he and his son noticed that his blue and gray, medium-sized, 1970 Ford tractor was missing on the afternoon of June 11, 1990. Based upon the imprints that had been left near the area where the tractor was last seen, it appeared that the tractor had been loaded on a longbed truck. This fact was later confirmed by Agent Wayne Smith of the Georgia Bureau of Investigation. The victim paid $2,900 for the tractor at the time of purchase. The day after the theft, the victim had his son contact the sheriff’s department and inform them of the missing tractor. After an investigation, the tractor was found in Alabama at the home of a man who had purchased the tractor from an auction for $3,625. The defendant had sold the tractor to the auctioneers on June 12, 1990. The tractor was subsequently returned to the victim. The victim had not given anyone permission to take the tractor off of his property.

Officer Jimmy Adams of the Lumber City Police Department, testified that on the day of the theft, he had seen the defendant in a four-wheel drive pick-up truck pulling a blue Ford tractor on a longbed trailer. In addition, Ronald Simmons, a friend of the defendant, admitted at trial that he had hauled the tractor to the Alabama auction for the defendant. The defendant testified that he purchased the tractor from a man named Harold Nobles, who was not present at or subpoenaed to trial. The defendant stated further that when Nobles did not bring the tractor to him as promised after he had paid Nobles for the tractor, he retrieved the tractor from the victim’s property at the instruction of Nobles. However, when the defendant was questioned by the police on June 12, 1990, he denied having possession of the tractor at any time.

1. In his first enumeration of error, the defendant contends that the evidence was insufficient to support the verdict. We disagree.

On appeal of a. criminal conviction, the standard of review is whether, “ ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Cit.]” Adams v. State, 255 Ga. 356, 357 (338 SE2d 860) (1986). At trial, the defendant testified that he retrieved the tractor but contends that he had purchased the tractor from an individual who was not present at or subpoenaed for trial by the defendant. The defendant’s testimony was contradicted by the testimony of Agent Smith who stated that the defendant denied possession of the tractor the day after it was taken by the defendant from the victim’s property. “[T]his court determines the sufficiency of the evidence, but does not weigh the evidence or determine witness credibility. [Cit.]” Daniel v. State, 200 Ga. App. 79, 80 (1) (406 SE2d 806) (1991). The jury weighed the testimony against the defendant, and this court may not substitute its judgment for that of the jury. In reviewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his second enumeration of error, the defendant contends that there was juror misconduct sufficient to warrant a new trial, in that an unnamed juror, during the jury’s deliberation, revealed his personal knowledge of Harold Nobles’ reputation and character in the nature of testimonial evidence. As a result, the defendant argues that the jury was allowed to consider matters which were not lawfully admitted into evidence, denying his right to confront such testimonial evidence. In support of this enumeration, the defendant submitted the affidavits of two of the jurors.

“The affidavits of jurors may be taken to sustain but not to impeach their verdict.” OCGA § 17-9-41. “There are a number of important public policy considerations underlying the rule which prove its sagacity. Among these considerations are: the need to keep inviolate the sanctity of juror deliberations, the desirability of promoting the finality of jury verdicts and the necessity of protecting jurors from post-trial harassment.” Watkins v. State, 237 Ga. 678, 683-684 (229 SE2d 465) (1976). Further, “ ‘it has been repeatedly held that the affidavit of a juror will not be received to show that the jurors in arriving at their verdict acted upon private knowledge or upon matters which were not in evidence.’ [Cit.]” Emmett v. State, 243 Ga. 550, 555 (6) (255 SE2d 23) (1979). Accordingly, the trial court did not err in denying the defendant’s motion for new trial on this basis because the jury’s verdict may not be impeached by the jurors’ affidavits submitted by the defendant.

3. In his third enumeration of error, the defendant contends that the trial court erred in imposing a felony sentence under the provisions of OCGA § 16-8-12 (a) (4) (A) as the tractor in question is not a “motor vehicle” as contemplated by law. We disagree.

Pursuant to OCGA § 40-1-1 (33), motor vehicle has been defined as “every vehicle which is self-propelled.” The evidence revealed that the tractor in question was self-propelled and its value in excess of $500. Consequently, we find that the definition of motor vehicle includes the tractor in question and the trial judge did not err in imposing a felony sentence.

4. Lastly, the defendant contends that the trial court erred in denying his motion for new trial based upon newly discovered evidence of similarly fraudulent transactions involving the individual from whom the appellant allegedly purchased the tractor.

“To obtain a new trial [based upon newly discovered evidence], a movant must satisfy the court ‘(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is attached to the motion or its absence accounted for; and (6) that the new evidence does not operate solely to impeach the credibility of a witness. All six requirements must be satisfied before a new trial will be granted.’ [Cit.]” Young v. State, 194 Ga. App. 335 (1) (390 SE2d 305) (1990). “The grant or denial of a new trial based on newly discovered evidence is a decision within the sound discretion of the trial court. Its ruling will not be disturbed absent an abuse of that discretion. [Cit.]” Wilson v. State, 193 Ga. App. 374, 375 (387 SE2d 642) (1989).

We agree with the trial court that the appellant has not shown that due diligence would not have revealed this evidence sooner or that this evidence is so material that it would have probably produced a different result. Further, considering the fact that the appellant testified that this individual, Nobles, allegedly sold him the tractor in question, this information that he proposes to introduce concerning Nobles’ involvement with similarly fraudulent transactions, is cumulative. Accordingly, we find that the trial court did not abuse its discretion in denying the defendant’s motion for new trial based upon his failure to meet the six-prong test enunciated in Young.

Decided March 1, 1993.

Harrison, Harrison & Llop, Steven M. Harrison, for appellant.

Richard A. Malone, District Attorney, Samuel H. Altman, Assistant District Attorney, for appellee.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


text:
    A92A2029.
    CASON v. WILLIAMS et al.
    (428 SE2d 444)
   Blackburn, Judge.

Kenneth Alan Cason appeals from the order of the trial court denying his motion to dismiss based upon the untimeliness of the service of process and the subsequent jury verdict entered in favor of the plaintiffs, Gail and Robert Williams, in the amount of $7,875.57.

On December 6, 1985, the appellees brought a tort action against the appellant and his ex-wife, Diane. Cason, arising out of an automobile collision on January 11, 1985. Although Diane Cason timely received service of process of the complaint, the process server was unable to locate the appellant within the jurisdiction. The appellees subsequently voluntarily dismissed Diane Cason as a party pursuant to her motion for summary judgment, because she was not the driver of and had no control over the operation of the vehicle at the time of the collision. Based upon their inability to locate the appellant, the appellees were granted an order from the court in December 1986 permitting service on the appellant by publication. The record does not show that service of process was subsequently made upon the appellant pursuant to this order. The consent order of the parties filed May 9, 1991 stipulates that the appellant was not properly served prior to May 8, 1991.

On December 21, 1987, after a trial by a jury, a judgment was entered against the appellant in favor of the appellees in the amount of $5,000. Dissatisfied with the verdict, the appellees filed a motion for a new trial, which was granted by the trial court on March 21, 1988. On October 5, 1988, after a bench trial during which the appellant was not present, the trial judge entered an order against the appellant in the amount of $118,072, based solely upon evidence presented by the appellees.

The appellant subsequently became aware of the outstanding judgment that had been entered against him because a hold had been placed upon his operating license by the appellees through their attorney. The appellant moved to set aside the default judgment, and on May 9, 1991, the appellees consented to set aside the judgment, based upon the trial court’s lack of jurisdiction over the appellant due to the insufficiency of the service of process. In July 1991, the appellant acknowledged service of process and filed an answer, asserting several defenses, including lack of personal jurisdiction as a result of the insufficient service of process. Afterwards, the appellant moved to dismiss thé action based upon the expiration of the statute of limitation before proper service of process was made upon him and he filed an affidavit in support of the motion. The appellees subsequently responded. In denying the motion, the trial court found that the appellant was properly served with a copy of the summons and complaint. The case proceeded to trial and the jury returned a judgment in favor of the appellees. This appeal followed.

In his sole enumeration of error, the appellant asserts that the trial court erred in denying his motion to dismiss because he was not properly served with a copy of the summons and complaint before the expiration of the applicable statute of limitation. We agree.

“ ‘The complaint was filed [within] the expiration of the period provided by the applicable statute of limitation but service of process did not occur within the five days allowed by (OCGA § 9-11-4 (c)) . . . nor within the period of the statute of limitation. Whether defendant’s motion to dismiss the complaint as barred by the statute of limitation should be granted is determined by whether the plaintiff has shown that he acted in a reasonable and diligent manner in attempting to assure that a proper service was made as quickly as possible.’ Plaintiff must carry the burden to show diligent service. [Cits.]” Walker v. Hoover, 191 Ga. App. 859, 860 (383 SE2d 208) (1989). “ ‘ “There, of course, will be situations where despite all the diligence of the plaintiff, service cannot be obtained within 5 days and before the expiration of the statute of limitation. A reasonable rule must be that in such case the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If he were, of course he would be barred, but if he acted in a reasonably diligent manner then he would not be.” [Cits.] . . .’ Ordinarily, ‘(t)he determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitation is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.’ [Cit.]” Hossain v. Tohme, 205 Ga. App. 538, 539-540 (423 SE2d 4) (1992). In the case sub judice, service of process was not perfected upon the appellant until July 9, 1991, over six years after the accident, over four years after the expiration of the applicable two-year statute of limitation for injuries as provided in OCGA § 9-3-33, and nearly six years after the filing of the complaint. The appellees’ efforts to locate the appellant were “ ‘intermittent and wholly ineffective.’ ” Shears v. Harris, 196 Ga. App. 61, 62 (395 SE2d 300) (1990). Although counsel for the appellees makes vague references in his affidavit submitted in opposition to the appellant’s motion to dismiss, that he contacted the appellant’s wife, former employer, and mother, all of whom did not know the appellant’s whereabouts, and hired three separate professional skip tracers, who were further unable to locate the appellant prior to the expiration of the statute of limitation, he “does not give specific dates or details reflecting a diligent attempt to locate [the appellant].” Freemon v. Dubroca, 177 Ga. App. 745, 746 (2) (341 SE2d 276) (1986). The record reflects absolutely no investigative attempt to locate the appellant from January 1987 until July 1991, when the appellant acknowledged service, a period of four-and-one-half years.

This court has noted that length of time is also considered in determining whether service will relate back to the time of filing if the statute of limitation accrues between the date of filing and the date of service, when service is perfected more than five days after the filing of the complaint. See Scoggins v. State Farm &c. Ins. Co., 156 Ga. App. 408, 410 (274 SE2d 775) (1980). In its reversal of the trial court’s denial of an appellant’s motion for summary judgment based upon the appellee’s failure to perfect service before the expiration of the applicable time limitations, this court in Abelt v. Nelson, 204 Ga. App. 501, 504 (419 SE2d 749) (1992), held that service of process perfected ten months after the expiration of the statute of limitation cannot be considered due diligence, and the trial court’s determination of such “constitute [d] an abuse of discretion which cannot be supported as a matter of law.” In Abelt, an employee of the law firm that represented the appellee averred in an affidavit that he sought the assistance of two investigators, the sheriff, and the appellant’s former employer, before he was able to locate the appellant approximately nine months after the expiration of the statute of limitation. Considering the factual similarities in the attempts made to locate appellant and the time period employed in the present case and Abelt, we conclude that Abelt is controlling in this case. Consequently, we find that the trial court abused its discretion in denying the appellant’s motion to dismiss as a matter of law.

Judgment reversed. McMurray, P. J., and Cooper, J., concur.

Decided March 1, 1993.

Carey, Deal, Jarrará & Walker, James C. Weidner, for appellant.

Hughes & Gibson, Ralph E. Hughes, for appellees.


author: Carley, Presiding Judge.

text:
    A92A2200.
    PAINO v. CONNELL et al.
    (428 SE2d 446)
   Carley, Presiding Judge.

Appellant-plaintiff brought suit, alleging a claim for abusive litigation against appellee-defendants. Appellees answered and subsequently moved for summary judgment. The day before the hearing was held on appellees’ motion, appellant amended his complaint to allege an additional four counts. After conducting the scheduled hearing, the trial court granted summary judgment in favor of appellees as to all five counts. Appellant appeals from this order.

1. The trial court did not err in denying appellant’s motion for a continuance of the hearing on appellees’ motion. Clifton v. Gillis, 195 Ga. App. 712, 713 (1) (394 SE2d 582) (1990).

2. “As a condition precedent to any claim for abusive litigation, the person injured . . . shall give written notice ... to any person against whom such injured person intends to assert a claim for abusive litigation and shall thereby give the person against whom an abusive litigation claim is contemplated an opportunity to voluntarily withdraw, abandon, discontinue, or dismiss the civil proceeding. . . .” OCGA § 51-7-84 (a). It is undisputed that appellant had not given the requisite notice to appellees during the pendency of those prior legal proceedings upon which his instant abusive litigation claim was premised. The statutory tort of abusive litigation is in derogation of the common law and its notice provisions are “strictly construed in order to accomplish its overriding purpose to give a prospective defendant the chance to change position and avoid liability, [cit.]. [Cits.]” Talbert v. Allstate Ins. Co., 200 Ga. App. 312, 314 (2) (408 SE2d 125) (1991). Moreover, to the extent that appellant relied upon a prior foreclosure proceeding conducted under power of sale as the predicate for his instant abusive litigation claim against appellees, he failed to state any claim for relief. Ingram v. JIK Realty Co., 199 Ga. App. 335, 338 (2a) (404 SE2d 802) (1991). It follows that the trial court correctly granted summary judgment in favor of appellees as to appellant’s abusive litigation claim.

3. The amendment to appellant’s complaint adding four additional counts was not untimely filed. “A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” OCGA § 9-11-15 (a). At the hearing on appellees’ motion for summary judgment as to appellant’s abusive litigation claim, the trial court inquired about the amendment to the complaint filed on the preceding day and granted summary judgment in favor of appellees as to the four additional counts contained therein on the ground that those “really do not present any additional claims or theories for relief that would not obviously be included and embodied in [appellant’s] contentions of abusive litigation.”

Decided March 1, 1993.

Michael J. Paino, pro se.

Shepherd & Brown, Timothy N. Shepherd, Adams, Barfield, Dunaway & Hankinson, David B. Dunaway, for appellees.

A review of the record indicates that the trial court may have erred in its construction of the allegations of the amendment to appellant’s complaint. Appellant appears to have asserted at least two additional legal or equitable claims or theories of recovery based upon an alleged wrongful foreclosure. See generally Clark v. West, 196 Ga. App. 456 (395 SE2d 884) (1990). In any event, the trial court committed procedural error by granting summary judgment as to appellant’s amended complaint. No motion for summary judgment as to the four additional claims set forth in appellant’s amended complaint had been made 30 days prior to the trial court’s grant of summary judgment. See Peoples Fin. Corp. of Rome v. Jones, 134 Ga. App. 649 (215 SE2d 711) (1975). Accordingly, the trial court’s order must be reversed as to the grant of summary judgment in favor of appellees on the four counts contained in appellant’s amendment to his complaint.

Judgment affirmed in part and reversed in part. Pope, C. J., and Johnson, J., concur.


author: Johnson, Judge.

text:
    A92A2388.
    LOPEZ v. THE STATE.
    (428 SE2d 448)
   Johnson, Judge.

Teodora Lopez pled guilty to theft by shoplifting. The trial court denied her motion to withdraw her guilty plea. She appeals directly from her conviction and from the denial of her motion to withdraw the guilty plea.

1. In her first two enumerations of error, Lopez contends that the trial court erred in determining that her guilty plea was voluntarily and intelligently entered. We disagree. “When the accused pleads guilty the record must disclose the defendant’s voluntary waiver of his constitutional rights. The court will not presume a waiver, if it is not affirmatively shown on the record. The most reliable method of perfecting the record in this regard is to conduct an inquiry into the defendant’s understanding of the nature and consequences of his plea. There is no procedural requirement that the judge personally make all the inquiries provided that they are made in his presence and the failure to make such an inquiry is not fatal where the record reflects that the defendant was represented by counsel who advised him of all of his rights and of the consequences of entering the plea.” (Citations and punctuation omitted.) Lewis v. State, 191 Ga. App. 509 (2) (382 SE2d 207) (1989).

The transcript shows that Lopez was represented by counsel. She indicated that she understood the charge, pled guilty and told the court that no one had forced her to plead guilty. Lopez’s counsel told the court that she believed that her client was entering the plea freely and voluntarily. The court then explained to Lopez that since this was her third shoplifting conviction, any subsequent convictions would be felonies. In addition to this colloquy, Lopez, her counsel, and the court signed a written waiver of rights form indicating that the plea entered was made freely and voluntarily and that the defendant had been advised of the nature and consequences of her plea. Compare Lewis, supra.

Under these circumstances, we find that the court did not err in determining that Lopez entered her guilty plea voluntarily and intelligently.

2. In support of her motion to withdraw guilty plea, Lopez asserted that the court erred in failing to inquire whether she was able to understand English well enough to comprehend her rights. In denying her motion, following an evidentiary hearing, the court found that Lopez’s guilty plea was “freely, knowingly and voluntarily given.” The court’s order did not specifically address the issue of Lopez’s knowledge of the English language and a transcript of the motion hearing was not included in the record.

Lopez fails to point to any evidence in the record, nor can we find any, in support of her contention that she had difficulty in understanding the English language. Our review of the arraignment hearing transcript indicates that Lopez properly responded to the trial court’s questions in English, and entered her plea on the waiver of rights form in English. There is no evidence in the record showing that Lopez did not understand English or had any trouble speaking English. Lopez’s counsel never claimed that Lopez was having difficulty understanding English, nor is there any evidence in the record that Lopez requested or needed the services of a translator. Indeed, the trial court found that Lopez was able to understand the nature and consequences of her plea as evidenced by her signature at the bottom of the waiver of rights form.

Decided March 1, 1993.

James B. McGinnis, for appellant.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Michael S. Fox, Assistant Solicitors, for appellee.

“The burden is on the party alleging error to show it affirmatively by the record, and that when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.” (Citations and punctuation omitted.) Taylor v. State, 197 Ga. App. 678, 680 (2) (399 SE2d 213) (1990). Lopez failed to meet her burden on this issue. We must therefore presume that the court was correct in its finding that her plea was intelligently and voluntarily entered; and we conclude that any language problems she may have experienced did not act as a barrier to the intelligent and voluntary entry of her plea.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.


text:
    A92A2393.
    ROBBINS v. THE STATE.
    (428 SE2d 450)
   Blackburn, Judge.

Pearl Lue Robbins was convicted by a jury of making harassing telephone calls in violation of OCGA § 16-11-39 (4). She appeals from the judgment entered on the jury’s verdict.

1. Appellant first contends the record does not show whether the jury’s verdict was unanimous because the accusation alleged commission of the charged crime in two separate and alternative ways, see Hazelton v. State, 200 Ga. App. 61, 63 (406 SE2d 569) (1991), but the jury returned only a general verdict. There is no indication in the record that appellant raised this issue in any pretrial pleadings. Appellant has provided neither a transcript of the trial nor a substitute transcript or stipulation of facts prepared pursuant to OCGA § 5-6-41 (g), (i). Consequently, we cannot determine whether appellant requested a jury charge on unanimity, see Maddox v. State, 233 Ga. 874, 875-877 (2) (213 SE2d 654) (1975); whether the court gave such an instruction to the jury; whether appellant exercised her right to have the jury polled to ascertain whether each juror’s vote of guilty was based on the same method of commission of the crime, see id.; or whether appellant raised this issue in the trial court in any manner and obtained a ruling. Appellant has the burden of showing error affirmatively by the record, and this burden cannot be discharged by recitations of error in the brief. Arnold v. State, 198 Ga. App. 514, 516 (3) (402 SE2d 312) (1991). Appellant having failed to fulfill her responsibility to provide a transcript, this court can only presume that the trial was conducted in a regular and proper manner. Powell v. State, 198 Ga. App. 509, 512 (2) (402 SE2d 108) (1991).

Decided March 1, 1993.

Paul McGee, for appellant.

James L. Webb, Solicitor, Helen A. Roan, Carol Walker-Russell, Assistant Solicitors, for appellee.

2. Appellant maintains that her trial counsel’s failure to call her as a witness despite her insistence that she testify constituted ineffective assistance of counsel. Appellate counsel did not represent appellant at trial or upon a motion for new trial, and the issue of effectiveness of trial counsel has been raised for the first time on appeal. Under these circumstances, the case is remanded to the trial court for an evidentiary hearing on appellant’s claim of ineffective assistance of counsel. Kendrick v. State, 196 Ga. App. 182 (395 SE2d 644) (1990); see Johnson v. State, 259 Ga. 428, 429 (3) (383 SE2d 115) (1989).

Judgment affirmed and case remanded for further proceedings in accordance with Division 2. McMurray, P. J., and Cooper, J., concur.


text:
    A92A1694, A92A1697.
    DEAVOURS et al. v. HOG MOUNTAIN CREATIONS, INC. et al.; and vice versa.
    (428 SE2d 388)
   Carley, Presiding Judge.

The facts relevant to the resolution of the instant appeals are as follows: Appellee-defendants counterclaimed against appellant-plaintiffs, seeking only an award of attorney’s fees and expenses of litigation pursuant to OCGA § 9-15-14. Appellants voluntarily dismissed their complaint without prejudice and, more than 45 days thereafter, the trial court entered an order awarding attorney’s fees and expenses of litigation to appellees on their OCGA § 9-15-14 counterclaims. In Case No. A92A1694, appellants appeal from the trial court’s order pursuant to this court’s grant of their application for a discretionary appeal and, in Case No. A92A1697, appellees cross-appeal.

Case No. A92A1694

1. Prior to April 3, 1989, “abusive litigation” was a common-law tort, the substantive elements and procedural aspects of which were governed by Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). For “abusive litigation” claims arising after that date, however, Yost and its progeny have no precedential value whatsoever, since it is the statutory provisions of OCGA § 51-7-80 et seq. which now constitute “the exclusive remedy for abusive litigation.” OCGA § 51-7-85.

2. The relevant facts in the instant case arose after April 3, 1989. However, OCGA § 51-7-80 et seq. is no more applicable here than is Yost. Appellees did not purport to state a tort claim for “abusive litigation” pursuant to OCGA § 51-7-80 et seq. In their counterclaims, appellees invoked only the provisions of OCGA § 9-15-14. The remedy that is afforded litigants under OCGA § 9-15-14 differs from that formerly afforded to tort claimants under Yost and such remedy likewise differs from that presently afforded to tort claimants under OCGA § 51-7-80 et seq. See Ferguson v. City of Doraville, 186 Ga. App. 430, 432 (2a) (367 SE2d 551) (1988). Entirely unlike OCGA § 51-7-80 et seq., OCGA § 9-15-14 does not create a tort claim for “abusive litigation,” which would be pleaded pursuant to the Civil Practice Act and submitted to a jury for the resolution of disputed questions of fact. OCGA § 9-15-14 merely makes substantive and procedural provision for a trial court, sitting as the trior of fact, to make an award of attorney’s fees and expenses of litigation as a sanction against certain enumerated abuses. Accordingly, appellees’ recovery in the instant case is in no way governed by the substantive and procedural provisions applicable to a tort claim for “abusive litigation” under OCGA § 51-7-80 et seq.

3. “Pursuant to subsection (e) of OCGA § 9-15-14, a claim for reasonable and necessary attorney[’s] fees and expenses of litigation to punish or deter litigation abuses must be brought ‘within 45 days after the final disposition of the (underlying) action.’ ” Abrahamsen v. McDonald’s Corp., 197 Ga. App. 624, 625 (1) (398 SE2d 861) (1990).

Although appellees filed an initial counterclaim purporting to invoke OCGA § 9-15-14, they never filed a timely motion for OCGA § 9-15-14 attorney’s fees and expenses of litigation. Even assuming that the voluntary dismissal of appellants’ complaint can be considered to be a “final disposition” of the underlying action notwithstanding appellants’ right to refile, appellees’ initial counterclaim cannot be considered to be a “motion” which was filed “within 45 days” thereafter. “[T]he plain language of that part of [OCGA § 9-15-14] relating to procedure, i.e., subsection (e), provides for a ‘motion’ and makes no reference to a ‘counterclaim.’ Subsection (b) also refers to ‘motion,’ implying that the counterclaim vehicle is not contemplated. Subsection (e) also uses the term ‘within,’ not ‘no later than’ in referencing the time frame for the request. The word ‘may’ means that the litigant is authorized to seek such an award after the case is concluded, when the basis for an award has matured. [Cit.]” Hutchison v. Divorce & Custody Law Center &c., 207 Ga. App. 421, 424 (427 SE2d 784) (1993). “Since a motion for OCGA § 9-15-14 attorney’s fees is the prevailing party’s final request in a concluded legal proceeding, a request for attorney’s fees contained in a party’s initial pleading whereby a legal proceeding is commenced obviously does not qualify. [Cit.]” (Emphasis in original.) In the Interest of M. A. K., 202 Ga. App. 342 (1) (414 SE2d 288) (1991).

Jones v. Bienert, 197 Ga. App. 554 (398 SE2d 830) (1990) is not precedent for a contrary holding. The question of whether a counterclaim is a viable procedural vehicle for invoking OCGA § 9-15-14 was not directly addressed in that case. “ ‘Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been decided so as to constitute precedents.’ ” Albany Fed. S. & L. Assn. v. Henderson, 198 Ga. 116, 134 (1) (31 SE2d 20) (1944). Jones v. Bienert, supra at 556, stands only for the correct proposition that, unlike a tort claim for “abusive litigation” pursuant to OCGA § 51-7-80 et seq., no notice of an OCGA § 9-15-14 claim must be given before that claim is actually asserted and such an asserted OCGA § 9-15-14 claim is not, therefore, subject to dismissal for the failure to have given any pre-claim notice. Jones v. Bienert, supra, does not stand for the erroneous proposition that, contrary to the express statutory language, an OCGA § 9-15-14 claim need not be made by motion within 45 days after final termination of the underlying litigation, but can be made by an initial counterclaim filed at the very outset of the litigation. Moreover, it would appear that the Jones counterclaimant did at least invoke a ruling on her OCGA § 9-15-14 claim within 45 days after dismissal of the main action, in that she moved the trial court “to retain jurisdiction over the counterclaim.” Jones v. Bienert, supra at 554. The record in the instant case shows no equivalent motion invoking a ruling on their OCGA § 9-15-14 counterclaims within 45 days after dismissal of appellants’ complaint.

4. The trial court’s order “cannot be construed as a viable sua sponte award of attorney’s fees pursuant to OCGA § 9-15-14 (b). If the [trial] court was inclined to award, on its own motion, attorney’s fees pursuant to OCGA § 9-15-14 (b) . . ., it should have done so within 45 days of the final disposition of [the underlying] proceeding. . . .” In the Interest of M. A. K., supra at 342-343 (1). Compare Hardwick-Morrison Co. v. Mayland, 206 Ga. App. 426 (425 SE2d 416) (1992).

5. Appellees made no timely motion for OCGA § 9-15-14 attorney’s fees and expenses of litigation. The trial court made no timely sua sponte award of OCGA § 9-15-14 attorney’s fees and expenses of litigation. It follows that the instant award was unauthorized and must be reversed.

Decided February 12, 1993

Reconsideration denied March 2, 1993

Glenville Haldi, for appellants.

Thompson, O’Brien, Kemp & Nasuti, J. Patrick O’Brien, Donna N. Kemp, William M. Coolidge III, for appellees.

Case No. A92A1697

6. In their cross-appeal, appellees urge only that the trial court erred in failing to make a larger award of OCGA § 9-15-14 attorney’s fees and expenses of litigation than it actually did. Since we have held in the main appeal that the trial court erred in making any award to appellees under OCGA § 9-15-14, it follows that appellees’ cross-appeal must be dismissed as moot.

Judgment reversed in Case No. A92A1694. Appeal dismissed in Case No. A92A1697. Pope, C. J., and Johnson, J., concur.


text:
    A92A2176.
    COMBINED INSURANCE COMPANY et al. v. PEOPLES.
    (428 SE2d 391)
   Johnson, Judge.

Barbara Peoples, an employee of Combined Insurance Company, was injured in a work-related car accident in 1987. She received workers’ compensation benefits for those injuries. More than three-and-one-half years after the accident, Peoples scheduled an appointment with her treating physician due to severe headaches which she related to her prior injuries. Peoples acted completely on her own in making this appointment on her own, scheduling it without the knowledge, approval, or direction of either Combined or its workers’ compensation insurance carrier, National Union Fire Insurance Company. On the morning of the appointment, Peoples drove from her home in Waycross, Georgia to Jacksonville, Florida. She dropped her boyfriend off at work in Jacksonville at approximately 7:00 a.m., and then proceeded toward the doctor’s office, also located in Jacksonville. While en route from her boyfriend’s place of employment to the doctor’s office, Peoples was severely injured in a one-car accident. She filed a claim seeking workers’ compensation for the injuries she sustained in this second accident. The administrative law judge entered an award in favor of Peoples. The State Board of Workers’ Compensation adopted the ALJ’s award and the superior court affirmed the board’s decision. Combined and National appeal, contending that Peoples was not injured within the scope of her employment.

Decided February 18, 1993

Reconsideration denied March 2, 1993

Swift, Currie, McGhee & Hiers, Joseph A. Munger, Gregory B. McMenamy, Jr., for appellants.

Chambless & Chambless, Vernon L. Chambless, for appellee.

“The purpose of the Workers’ Compensation Act is to protect a worker against unexpected personal injuries arising out of, and in the course of, [her] employment. Workers’ compensation does not cover accidents sustained by an employee outside the scope of [her] employment. The claimant has the burden of demonstrating that [her] claim falls within the Act’s coverage. [She] must prove that the injury for which [she] seeks workers’ compensation benefits arose out of, and in the course of, [her] employment. . . .” (Citations and punctuation omitted.) Universal &c. Ins. Co. v. Ga. Auto. Dealers’ &c. Fund, 182 Ga. App. 595, 596-597 (1) (356 SE2d 686) (1987). The ALJ, the board and the superior court, in seeking to determine whether Peoples’ injuries arose within the scope of her employment, relied upon our decisions in Street v. Douglas County Rd. Dept., 160 Ga. App. 559, 560 (287 SE2d 586) (1981), and Firestone Tire &c. Co. v. Crawford, 177 Ga. App. 242, 243-244 (2) (339 SE2d 292) (1985).

In Street, we held that an employee’s injuries, sustained while en route to work from a session of physical therapy for a prior compensable injury, did not arise in the scope of his employment where the employee’s participation in the therapy was entirely voluntary. In Firestone, we applied the analysis set forth in Street in holding that injuries sustained by an employee while on his way to the doctor’s office were compensable because we found that the employee’s trip to see his doctor was not entirely voluntary. It was required by his employer as a precondition to returning to work.

In the instant case, Peoples’ appointment with the doctor for treatment was entirely voluntary. She was not required by Combined or its carrier to consult the doctor as a precondition to returning to work. It is undisputed that Combined did not schedule the appointment, and it is undisputed that Combined was completely unaware that it had been scheduled. Peoples voluntarily and on her own initiative scheduled the appointment and drove to it. Consequently, the injuries sustained by Peoples, en route to the doctor’s office for entirely voluntary treatment, did not arise out of, and in the course of, her employment. The superior court erred in affirming the Board’s award of workers’ compensation.

Judgment reversed. Pope, C. J., and Carley, P. J., concur.

Nelson & Hill, Janet E. Hill, Deborah L. Dance, amici curiae.


text:
    A92A2264.
    WESLEYAN COLLEGE et al. v. MAINS.
    (428 SE2d 577)
   Johnson, Judge.

Robert Mains injured his knee in the course of his employment with Wesleyan College. The injury was diagnosed as a torn medial meniscus. The injury was subsequently surgically repaired. Mains received temporary total disability benefits, followed by workers’ compensation benefits for a five percent partial permanent disability until benefits to which he was entitled were exhausted. Slightly more than two years later, a second on-the-job incident occurred resulting in an injury to the same knee. Mains submitted a claim for additional compensation, claiming that the initial injury included damage to the anterior cruciate ligament and that the problem had not been properly recognized and compensated for by the initial claim. Wesleyan College and its insurance carrier responded claiming that the statute of limitation had run as to any additional claim for benefits.

At a hearing before an administrative law judge, the initial treating physician acknowledged that Mains had complained that he was experiencing slipping or laxity in his knee, symptoms consistent with a ligament problem. A brace was prescribed to alleviate those symptoms. A second physician to whom Mains was later referred testified that the anterior cruciate ligament injury had probably been sustained in the initial accident in 1984. The ALJ determined that Mains was entitled to an increased disability rating in light of evidence that the initial award failed to recognize the true scope of the injury and was therefore insufficient. The full Board and the Superior Court of Bibb County affirmed the award.

“ ‘A finding of fact made by the full Board when supported by any evidence, is conclusive and binding upon the superior court as well as this court. Neither we nor the superior court have any authority to set aside an award based on supported findings of fact merely because we might disagree with the conclusions reached therein. (Cits.)’ [Cit.]” Conwood Corp. v. Guinn, 201 Ga. App. 43, 44 (410 SE2d 315) (1991). In light of the conclusion that all benefits to which Mains was entitled in connection with his first claim had not been paid at the time of the submission of the second claim, the statute of limitation had not run. See Holt’s Bakery v. Hutchinson, 177 Ga. App. 154 (338 SE2d 742) (1985).

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.

Decided February 8, 1993

Reconsideration denied March 2, 1993

Murphy & Sibley, R. Napier Murphy, for appellants.

Westmoreland, Patterson & Moseley, Stewart R. Brown, for appellee.


text:
    A92A2313.
    HACKEL et al. v. BARTELL et al.
    (428 SE2d 584)
   Johnson, Judge.

Jo Ann Hackel parked her car behind Donna Lee Bartell’s car on a sloped driveway. When the home sales presentation the women were attending was over, they got into their respective cars to leave. Instead of releasing the emergency brake in her car, Hackel pulled the hood release. She got out of her car in order to close the hood. At that point, Bartell also got out of her car, walked over to Hackel’s car, leaned in the open door and released the emergency brake. The car began rolling down the driveway, knocking both Hackel and Bartell to the ground.

Bartell and her husband brought suit against Hackel and Marietta Dodge, Inc., the lessor of the car, alleging negligence against both defendants. They later amended their complaint to include a breach of warranty claim against Marietta Dodge. The defendants filed a motion for summary judgment on the negligence counts, asserting that Bartell failed to exercise ordinary care for her own safety and assumed the risk of any injury she may have sustained. The motion was granted only with respect to the negligence count against Marietta Dodge. The trial court denied summary judgment on the negligence count against Hackel. Although not part of the motion, the trial court also denied summary judgment on the breach of warranty claim against Marietta Dodge. Hackel and Marietta Dodge appeal.

1. The undisputed facts most critical to our determination of Hackel’s appeal are that Bartell voluntarily leaned into the open door of a car which was parked on a slope and released the emergency brake. She admitted in her deposition that she did not check to see whether the car was in gear. Assumption of risk in its simplest and primary sense means that the plaintiff has given her express consent to relieve the defendant of an obligation of conduct toward her and to take her chance of injury from a known risk. The result is that the defendant is simply under no legal duty to protect the plaintiff. Lundy v. Stuhr, 185 Ga. App. 72, 75 (363 SE2d 343) (1987). See also Prosser, Law of Torts, p. 303 (2d ed.).

Decided February 11, 1993

Reconsideration denied March 2, 1993

Goldner, Sommers, Scrudder & Bass, Glenn S. Bass, William W. Horlock, Jr., for appellants.

Whelchel, Dunlap & Gignilliat, Thomas M. Cole, Madeline Wirt, Thomas S. Bishop, for appellees.

We agree with an observation previously made by this court: “The plaintiff went into the situation with [her] eyes open. [She] saw the whole picture; [she] had the opportunity to measure the risks, if any, and was under no compulsion [to assist in releasing the brake]. . . . Every adult is presumed to be endowed with normal faculties, both mental and physical. No person should conduct [herself] in an irresponsible manner when even ordinary prudence would protect [her] from the likelihood of possible injury. At some point the danger and likelihood of injury becomes so obvious that actual knowledge by the plaintiff is unnecessary.” (Citations and punctuation omitted.) Lundy v. Stuhr, supra at 74. See Simmons v. Classic City Beverages, 136 Ga. App. 150 (4) (220 SE2d 734) (1975); Union Carbide Corp. v. Holton, 136 Ga. App. 726, 732 (222 SE2d 105) (1975).

We recognize the long-standing rule that issues of negligence and lack of ordinary care for one’s own safety are rarely appropriate matters for summary adjudication. Nonetheless, in certain instances, such as this, the trial court can conclude as a matter of law that plain, palpable and undisputed evidence establishes that plaintiff assumed the risk of her injury. Dupree v. Goodrum, 201 Ga. App. 114, 115 (410 SE2d 332) (1991). We are satisfied that the intervening negligence of Bartell was the sole proximate cause of her own injury. Where, as here, an intervening act is the proximate cause of the injury, the defendant has a valid defense as a matter of law. See First Pacific Mgmt. v. O’Brien, 184 Ga. App. 277 (361 SE2d 261) (1987). In light of the particular facts of this case, we find that the denial of summary judgment on the negligence claim against Hackel was error.

2. Marietta Dodge had not moved for summary judgment on the breach of warranty claim, as it had recently been added to the complaint and discovery on that claim had not been conducted. The denial of summary judgment with regard to that claim when it was not before the trial court for consideration was error and must be reversed. Marietta Dodge may, of course, seek summary judgment on that claim at any time after this case is returned to the trial court, and the parties may pursue whatever appellate remedies are available to them after a ruling on any such motion.

Judgment reversed. Pope, C. J., and Carley, P. J., concur.