text:
    A94A0444, A94A0445.
    STEPHENS v. THE STATE (two cases).
    (447 SE2d 26)
   Pope, Chief Judge.

Jointly tried before a jury, defendants Benjamin Franklin Stephens and his son Benjamin Shawn Stephens were each found guilty of five counts of arson arising out of the November 14, 1990 fire that destroyed their home and four automobiles. They filed separate appeals from the judgments of conviction, raising identical enumerations of error. The appeals are hereby consolidated for disposition in this single opinion.

1. Defendants enumerate the general grounds. Construed to uphold the verdict, the evidence adduced below showed that defendant Frank Stephens was a veteran firefighter who had fallen on severe financial hard times. His checking account had been closed by his bank because of recurrent overdrafts, credit cards had been cancelled with large balances owing, and his home was in foreclosure. Electric utility service to the house had once been disconnected for meter tampering and non-payment. Subsequent electric service, with the account changed to Shawn’s name, was again terminated for non-payment in October 1990. A few days before the fire, Shawn had reconnected the power himself without the consent of the electric company. Although water service had been terminated, the telephone service had been reconnected and was working on the day of the fire. Evidence of Shawn’s own financial distress was presented, indicating that he had trouble making car payments, was delinquent on medical bills resulting from an attempted suicide and owed money to suppliers for his unsuccessful painting and contracting business. Frank Stephens’ sole remaining asset was the insurance policy on his home, which provided over $100,000 in coverage.

Defendants admitted being at the scene when the blaze began. Frank Stephens took the blame for starting the fire accidentally in the garage. In a statement given at the scene to the county fire investigator, Frank Stephens claimed that he and his son were attempting to start one of the cars by pouring gasoline through the carburetor when the engine backfired. The gasoline erupted into flames, the defendants panicked, and the flames spread rapidly. The fire investigators described the pattern as “unusual,” with the fire being “very hot” and “very fast.” Expert testimony was presented that the fire had been intentionally set, with gasoline and other petroleum products used from car to car and throughout the structure as accelerants. A paint thinner can was found in an upstairs mattress and the fuel tank caps had been removed from the automobiles, emitting additional gasoline vapors throughout the house. Although firefighters responded within five minutes of Shawn Stephens’ call, the fire had already progressed to the point where half of the residence collapsed and had consumed the four automobiles. The fire investigator was of the opinion that the sprinkler system had been dismantled before the fire. Shawn broke the windows of the garage from the outside which had the effect of ventilating the fire and bringing it throughout the house. Each defendant submitted insurance claims for items allegedly lost or destroyed in the fire. The insurer of the house and lienholders on the automobile titles did not consent to the burning of the house or the cars.

A person commits the offense of arson in the first degree when, by means of fire or explosive, he knowingly damages any dwelling house “when such is insured against loss or damage by fire . . . and such loss or damage is accomplished without the consent of both the insurer and the insured.” OCGA § 16-7-60 (a) (3). Similarly, a person commits the offense of arson in the second degree when, by means of fire or explosive, he knowingly damages a vehicle without the consent of both the owner of the vehicle and the holder of any security interest therein. OCGA § 16-7-61 (a). “ ‘Three things are necessary to sustain a conviction for arson: that the real property . . . was in fact burned, that its cause was a criminal agency, and that the defendant was that criminal agency. [Cit.] The latter may be proved by circumstantial evidence. [Cit.]’ [Cit.]” Powell v. State, 171 Ga. App. 876 (1) (321 SE2d 745) (1984). Despite the father’s claim that the fire began accidentally, from the evidence adduced at trial a rational trier of fact could reasonably have found defendant Frank Stephens guilty of arson beyond a reasonable doubt. See Burns v. State, 166 Ga. App. 766, 768 (3) (305 SE2d 398) (1983). Shawn Stephens denied complicity in any scheme to commit arson. Nevertheless, he acted to ventilate and thus spread the fire. Motive was established by evidence of his own financial and personal problems. This was sufficient to authorize his conviction under OCGA §§ 16-7-60 (a) (3) and 16-7-61 (a) as an aider and abettor. The enumeration of the general grounds is without merit.

2. The trial court did not err in refusing to merge all charges into a single conviction. The evidence showed a series of incendiary acts involving the property of different entities: the intentional setting of the fire; the use of accelerants to spread that fire from one car to another; ventilation to hasten the burning of the structure and further use of accelerants upstairs in a bedroom. The non-consensual burning of the house adversely affected the interest of the insurer, State Farm, while the destruction of the cars affected the interest of the purchase money creditors. Compare Corson v. State, 144 Ga. App. 559, 560 (1c) (241 SE2d 454) (1978).

3. Defendants enumerate as “plain error” the refusal of the trial court to give their written request to charge on “two theories” as part of the court’s instruction on circumstantial evidence. The record reveals the trial court did charge the jury correctly on the law of circumstantial evidence by quoting the language of OCGA § 24-4-6. When the jury charge given substantially covers the principles in the requested charge, it is not error to fail to give the requested charge. In the instant case, the trial court properly charged the jury on the law of circumstantial evidence, the presumption of innocence and the need to prove defendant’s guilt beyond a reasonable doubt. Under these circumstances, it was not error to refuse to give the “two theories” charge. See Burris v. State, 204 Ga. App. 806 (3) (420 SE2d 582) (1992); see also Langston v. State, 208 Ga. App. 175 (430 SE2d 365) (1993).

4. The State introduced evidence of a controlled experiment whereby the fire investigator attempted to replicate Frank Stephens’ version of events showing an accidental fire caused by automobile engine backfire. Defendants enumerate the admission of this evidence, asserting that the experiment was not sufficiently similar.

Although the engine used in the experiment was found at a junkyard in the body of a Ford Maverick, that engine was identified as a Chevrolet in-line six with a Rochester carburetor of the same era as that found in Frank Stephens’ Chevrolet Impala. “The admission of testimony as to experiments rests largely in the discretion of the trial judge, and the exercise of this discretion will not be controlled unless manifestly abused. The weight of such testimony is for the jury, and varies according to the circumstances of similarity which they may find to exist between the experiments and the actual occurrence under investigation. [Cits.]” West v. State, 200 Ga. 566, 571 (2) (37 SE2d 799) (1946). “ ‘[T]he true rule is that there should be substantial and reasonable similarity in the facts proved in the case and the facts upon which the experiment is based. The facts need not be exactly or in every particular similar; if they are sufficiently similar to accomplish the purpose of assisting the jury to intelligently consider the issue of fact presented in regard to the special point in controversy, the evidence is admissible.’ ” Miller v. State, 53 Ga. App. 275, 276 (1) (185 SE 372) (1936). “Any dissimilarity between the conditions of this particular experiment and the actual occurrence, [as related by defendant,] [go] to the weight and not [to] the admissibility of [the experimental reenactment] evidence.” McCulligh v. State, 169 Ga. App. 717, 719 (2) (314 SE2d 724) (1984).

5. The State sought to introduce evidence of statements made by Frank Stephens regarding his worrisome financial condition. These admissions were made to an emergency technician who was treating Frank Stephens for bruises received in an alcohol-related altercation with his son. Over the objections on the grounds of relevancy and that such evidence was more prejudicial than probative, the trial court admitted these statements and this evidentiary ruling is enumerated as error. We agree that defendant’s stated perception of his dire financial condition was relevant to establish the motive to burn his home for the insurance proceeds. “While motive is not an essential element in the proof of the crime of [arson], the State is entitled to present evidence to establish that there was a motive. . . . Evidence which is relevant to an issue in a case is not rendered inadmissible by the fact that it incidentally puts the defendant’s character in issue. [Cit.]” Johnson v. State, 260 Ga. 457, 458 (2) (396 SE2d 888) (1990). The admission of these statements was not an abuse of the broad discretion which the trial court has over evidentiary matters. Parnell v. State, 204 Ga. App. 488 (2) (420 SE2d 42) (1992).

6. Defendants’ sixth enumeration of error has been withdrawn.

7. The trial court charged that voluntary intoxication would not be an excuse for arson. This is a correct statement of the law. OCGA § 16-3-4 (c). The instruction given was not burden-shifting as to the issue of a general criminal intent and an enumeration of error predicated on this ground is without merit. Burns, 166 Ga. App. at 769 (4). See also Krier v. State, 249 Ga. 80, 86 (6) (287 SE2d 531) (1982); compare McEver v. State, 258 Ga. 768 (3) (373 SE2d 624) (1988).

8. Frank Stephens enumerates as error the admission into evidence of State’s Exhibit 228, the consent form he signed authorizing the fire investigators to search his home and vehicle, and authorizing them to take any papers deemed pertinent to their investigation of the cause and origin of the fire. This form recites that the consent to search was voluntarily given after Stephens had been notified of his right to refuse a search without a warrant. On appeal, it is urged that these recitals amount to a custodial statement and the consent form itself should have been excluded because Stephens had not been given any Miranda warnings. We are unable to consider this enumeration. Although the trial court conducted a hearing on the voluntariness of defendant’s consent, no objection to this exhibit was made below on this ground. See Reeves v. State, 169 Ga. App. 665, 666 (2) (314 SE2d 682) (1984). Objections to evidence which are not timely urged at trial cannot be raised for the first time on appeal, for they are deemed to have been waived. White v. State, 203 Ga. App. 889, 890 (1) (418 SE2d 149) (1992).

9. The same attorney represented both defendants during trial. They now urge that this dual representation amounts to ineffective assistance of counsel because of a conflict of interest.

(a) Although reference is made in the enumeration to the Georgia Constitution, no argument or citation to authority is advanced on Georgia constitutional principles. To the extent that state constitutional principles would afford an independent basis for decision, the enumeration is deemed abandoned in accordance with Court of Appeals Rule 15 (c) (2).

(b) “It is [a] fundamental principle that the Sixth Amendment guarantee of effective assistance of counsel includes the right of an accused to be represented by an attorney free of any conflicts of interest. [Cit.] There is a presumptive conflict of interest when one attorney is required to represent multiple defendants over their objection. [Cit.] However, if the defendants do not object to the multiple representation by the attorney until after trial, there is no benefit of a presumption and the defendants must show that an actual conflict of interest existed which impaired their attorney’s performance on their behalf. [Cit.]” (Emphasis supplied.) Keen v. State, 164 Ga. App. 81, 82 (1) (296 SE2d 91) (1982). “[T]o justify separate counsel, the conflict may not be merely theoretical or speculative, but must have some substantial basis in fact. [Cits.]” Davis v. State, 129 Ga. App. 796, 799 (1) (201 SE2d 345) (1973). “A mere possibility of conflict is insufficient to impugn a criminal conviction amply supported by competent evidence. [Cit.]” Montgomery v. State, 156 Ga. App. 448, 454 (275 SE2d 72) (1980). See also Weeks v. State, 190 Ga. App. 373 (1) (378 SE2d 895) (1989).

In the instant case, the defenses were not antagonistic, indeed, the testimony of both co-defendants was wholly exculpatory of the other. Accordingly, counsel was free to advance vigorously all helpful theories raised by the evidence without slighting one client or inhibiting the defense of either. Defendants have “ ‘failed to show in the record any actual conflict of interest or how such potential conflict of interest actually impaired the attorney’s performance or representation. [Their] contentions raise only the [bare] possibility of conflict’ ” which is insufficient to require a new trial. Barnes v. State, 160 Ga. App. 232 (286 SE2d 519) (1981). See also Griggs v. State, 262 Ga. 766, 769 (4b) (425 SE2d 644) (1993). “ ‘Where(, as here,) the issue is not timely raised, only in the most flagrant of cases can it be held error for the court to fail to interject itself in the case and sua sponte to appoint [separate] counsel for one or more defendants where its intervention [is] not . . . sought.’ ” Ward v. State, 195 Ga. App. 166 (1) (393 SE2d 21) (1990). The circumstance whereby the State allegedly offered to drop charges against the son if the father agreed to plead guilty does not establish harm to either defendant in their attorney’s presentation of the defense because the evidence shows both spurned the State’s offer, preferring to assert their innocence.

10. In related enumerations, defendants urge that the house and the burned-out Chevrolet were unlawfully subjected to a warrantless search by fire investigators. However, that search and the subsequent seizure of any papers were conducted pursuant to the written consent of Frank Stephens. After a hearing, the trial court determined that Stephens’ written consent was knowingly and voluntarily granted, and that determination is not otherwise enumerated as error. The “Fourth Amendment search warrant requirement applies to fire scene searches with certain exceptions.” Waters v. State, 174 Ga. App. 916, 917 (1) (331 SE2d 893) (1985). A valid consent to search is one of those permitted exceptions to the fire scene warrant requirement. See, e.g., Kosal v. State, 204 Ga. App. 708, 710 (1a) (420 SE2d 621) (1992).

Decided April 1, 1994

Reconsiderations denied July 28, 1994

Alden W. Snead, J. M. Raffauf, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Accordingly, a motion to suppress evidence seized pursuant to Stephens’ valid written consent on the ground that a fire scene search warrant was nevertheless required would be without merit. It follows that defendants cannot demonstrate that they received ineffective assistance of counsel from their first attorney merely by showing that counsel failed to file such a meritless motion to suppress. Defendants clearly were not prejudiced by the omission alleged here. See Richardson v. State, 189 Ga. App. 113 (375 SE2d 59) (1988). Similarly, defendants cannot show an abuse of the trial court’s discretion by its refusal to entertain as untimely any post-arraignment motion to suppress on this ground, filed by subsequently retained counsel. State v. Grandison, 192 Ga. App. 473 (385 SE2d 139) (1989).

Judgments affirmed.

McMurray, P. J., and Smith, J., concur.


source: Caselaw Access Project

author: Pope, Chief Judge.

license: Public Domain

text:
    A94A0481.
    HATHCOCK v. THE STATE.
    (447 SE2d 104)
   Pope, Chief Judge.

Defendant William Hathcock was convicted by a jury of child molestation. He appeals his conviction and sentence.

The evidence at trial showed that on November 2, 1992, defendant conducted a termite inspection at the home of the victim, a four-year-old child, and her family. While defendant was using the kitchen telephone to call his office, he exposed his penis to the child. The child demonstrated this to the jury using an anatomically correct drawing. After defendant left, she separately told her father and mother she had seen the “bug man’s wiener.” When the mother asked if she was talking about the man’s penis, she said yes. The child told a sex crimes investigator that the “bug man” twice showed her his “wiener” which “came from his zipper.” The State also introduced as similar transaction evidence defendant’s prior convictions for child molestation and public indecency, both of which involved him exposing his penis to young children.

Defendant admitted through the testimony of his expert witness that he exposed himself to the child. Defendant’s expert testified, however, that in his opinion defendant did not do so with the intent to arouse or satisfy sexual desires. The expert stated that defendant’s depression, combined with having been mentally and physically abused as a child, somehow caused him to associate his penis with being punished by an adult figure.

1. Defendant contends that since the only evidence of his intent to arouse or satisfy his or the child’s sexual desires was the mere act of exposure itself, evidence of criminal intent was circumstantial and the trial court erred in failing to give his requested charge on the law of circumstantial evidence as codified at OCGA § 24-4-6. This section provides: “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Defendant argues the failure to give this charge was harmful because his sole defense was that he exposed himself for non-sexual reasons.

In Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) (1991), the Supreme Court set forth a bright-line rule that “where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request.” Moreover, this court has held that it is error to fail to charge the substance of OCGA § 24-4-6 when the circumstances from which a guilty intent can be inferred are consistent with an innocent intention or an intention different from that charged against the accused. Cooper v. State, 2 Ga. App. 730 (3) (59 SE 20) (1907). Defendant offered evidence of an intention other than to arouse or satisfy his or the child’s sexual desires; however, the trial court gave the jury no instructions under which it could consider this evidence. The jury was thus left to determine defendant’s guilt or innocence without any instruction under which it could consider his sole defense of a different intention in exposing himself to the child. We thus find the failure to give the requested charge to be reversible error and remand for a new trial. See Cooper, 2 Ga. App. at 733; Robinson, 261 Ga. at 699-700; see also Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994).

2. We will address the remaining enumerations which are capable of repetition at retrial. Defendant next argues the evidence was insufficient to support his conviction because the mere act of exposure does not establish the requisite intent to arouse or satisfy either his or the child’s sexual desires. “Intent ... is a question of fact to be determined upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. OCGA § 16-2-6.” (Citation and punctuation omitted.) Worley v. State, 193 Ga. App. 58, 60 (3) (386 SE2d 879) (1989).

The evidence established that defendant exposed his penis to a female child under the age of 14. Although defendant argued he had a different intention in exposing himself to the child, it can be inferred from the act of exposure that defendant did so with the intent to arouse or satisfy his sexual desires. See Bentley v. State, 179 Ga. App. 287 (1) (346 SE2d 98) (1986); see also Worley, 193 Ga. App. at 60 (3); Close v. State, 195 Ga. App. 652 (394 SE2d 563) (1990). We thus find the evidence was sufficient to enable rational jurors to find defendant guilty beyond a reasonable doubt of the charged offense. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Defendant also argues the jury erred in arbitrarily disregarding the unrebutted testimony of his expert psychologist that defendant did not intend to arouse or satisfy sexual desires when he exposed himself to the child. “It is well-settled that a jury is always free to reject expert opinion testimony and substitute their own knowledge and experience.” (Citations and punctuation omitted.) Prejean v. State, 209 Ga. App. 411, 412 (2) (433 SE2d 628) (1993). Defendant’s reliance on Nagel v. State, 262 Ga. 888 (427 SE2d 490) (1993), is misplaced. That case simply held that in cases involving the presumption of sanity or insanity, the factfinder may not disregard expert medical evidence and rely solely on the presumption of insanity. Id. at 891. This enumeration is thus without merit.

4. Defendant contends there was a fatal variance between the indictment and the evidence at trial since the indictment charged him with exposing his penis with the intent to arouse and satisfy both his and the child’s sexual desires, but there was no evidence presented that he intended to arouse the child’s sexual desires. “When an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima facie case for jury determination as to guilt or innocence. In view of the conjunctive form of the indictment in this case, it was not incumbent upon the State to prove that defendant [intended to arouse both his and the child’s sexual desires].” (Citations and punctuation omitted.) Gordon v. State, 199 Ga. App. 704, 705 (1) (406 SE2d 110) (1991). There was no fatal variance because the evidence was sufficient to show defendant committed child molestation in one of the ways alleged in the indictment. Little v. State, 202 Ga. App. 7 (413 SE2d 496) (1991), relied on by defendant, is inapposite since in that case the indictment did not charge that the crime was committed in more than one way.

5. Defendant next contends the trial court erred in excluding his expert’s opinion testimony concerning what his intent was at the time of his 1988 conviction for child molestation. The arresting officer testified that defendant exposed his penis to a seven-year-old child in September 1988, and the State tendered a certified copy of defendant’s guilty plea and conviction for that offense. On direct examination, defendant’s counsel asked the expert whether he had an opinion concerning whether defendant intended to arouse sexual desires when he exposed himself in 1988. The trial court sustained the prosecutor’s objection to the question. During a proffer of the expert’s expected answer, he responded that the most he could say was that defendant was probably depressed at that time. “Where an expert’s opinion is based wholly on speculative or conjectural matters, his opinion should be excluded. [Cit.]” Jacobs v. Pilgrim, 186 Ga. App. 260, 262 (1) (367 SE2d 49) (1988). Given the speculative nature of this testimony, the trial court did not err in excluding it. Moreover, any alleged error in excluding this statement would be harmless since the expert did not specifically testify what defendant’s intent was at the time of the 1988 exposure.

6. Defendant contends the trial court erred in sustaining the prosecutor’s objection to defendant’s expert testifying about his previous work for her office in child molestation cases because this precluded defendant from establishing his expert was objective and well qualified. We disagree. Defendant’s expert testified at length concerning his qualifications and further testified that he had worked for both defendants and the State in child molestation cases. As the trial court noted, the specifics of the expert’s work on other child molestation cases for the particular district attorney’s office prosecuting defendant’s case was irrelevant to the expert’s qualifications. OCGA § 24-2-1.

7. Defendant next argues the trial court erred in excluding his sister’s testimony that he was physically abused by his father as a child. He claims this testimony was relevant because it corroborated the facts his expert relied upon in formulating the opinion defendant did not intend to arouse or satisfy sexual desires when he exposed himself. The sister’s testimony in and of itself that defendant was abused as a child was irrelevant to the question of whether he committed the crime of child molestation. “ ‘Evidence which does not in any reasonable degree tend to establish the probability of the issues of fact in controversy is irrelevant and inadmissible.’ [Cit.]” Craig v. State, 205 Ga. App. 691, 692 (1) (423 SE2d 417) (1992). “Evidence must relate to the questions being tried by the jury. . . .” OCGA § 24-2-1.

Decided July 11, 1994

Reconsideration denied July 28, 1994

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Daniel J. Porter, District Attorney, Brenda J. Bernstein, Assis tant District Attorney, for appellee.

Moreover, even assuming such testimony was relevant, defendant’s expert testified that, in his opinion, based on the history of mental and physical abuse defendant related suffering as a child, defendant suffered from post-traumatic stress disorder and exposed his penis for non-sexual reasons. “The admissibility of evidence is within the sound discretion of the trial judge and in view of the cumulative nature of the excluded evidence, any error in excluding same was harmless.” Stewart v. State, 210 Ga. App. 474, 478 (10) (436 SE2d 679) (1993).

8. Defendant contends the trial court erred in admitting evidence of his prior conviction for public indecency as a similar transaction because it was not sufficiently similar to the charged offense. “The exception to the general rule that evidence of independent transactions is inadmissible has been most liberally extended in the area of sexual offenses. In crimes involving sexual offenses, evidence of similar transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. There need only be evidence that the defendant was the perpetrator of both acts and sufficient similarity or connection between the independent transaction and the offenses charged.” (Citations and punctuation omitted.) Hall v. State, 204 Ga. App. 469, 470-471 (419 SE2d 503) (1992).

Defendant pled guilty to and does not dispute that he was the perpetrator of the earlier offense. Both incidents involved defendant exposing his penis to a young female child. There is no requirement that the prior crime or transaction be absolutely identical in every respect. Everhart v. State, 209 Ga. App. 82 (1) (432 SE2d 670) (1993). While defendant was not convicted of child molestation in the earlier offense, the act underlying that offense was strikingly similar to that for which he was on trial. See Touchton v. State, 210 Ga. App. 700, 701 (2) (437 SE2d 370) (1993). We find this evidence was sufficiently similar and the trial court did not err in admitting it.

9. The remaining enumerations need not be addressed since they are unlikely to occur on retrial. For the reason discussed in Division 1, defendant’s conviction is reversed and the case remanded for new trial.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A0707.
    SORRELLS CONSTRUCTION COMPANY, INC. v. CHANDLER ARMENTROUT & ROEBUCK, P.C.
    (447 SE2d 101)
   Pope, Chief Judge.

This appeal involves the res judicata and collateral estoppel effects of a voluntary dismissal with prejudice, specifically in the context of co-defendants who are principal and agent. Relying on the doctrine of res judicata, the trial court held that plaintiffs voluntary dismissal of its claim against the principal barred pursuit of its claim against the agent. We disagree and reverse.

The parties’ dispute arose out of construction work at the Athens Transit System Headquarters. The City of Athens (“the City”) hired defendant Chandler Armentrout & Roebuck, P.C. (“CAR”) to produce plans and specifications for the project, and hired plaintiff Sor-rells Construction Company, Inc., a general contractor, to use those plans and specifications to perform the actual work. When the plans and specifications provided by CAR proved to be faulty, plaintiff sued CAR and the City. Prior to trial, however, plaintiff dismissed the City as defendant with prejudice, in a document explicitly stating that “[t]his voluntary dismissal shall not and does not [a]ffect [pjlaintiff’s complaint against [defendant [CAR].” The trial court denied CAR’s pre-trial motion to dismiss plaintiff’s complaint on res judicata grounds. However, it reached a different conclusion when CAR raised the same issue in a directed verdict motion at the end of plaintiff’s case, ruling that CAR should receive the benefit of plaintiff’s voluntary dismissal of its claim against the City.

The law of res judicata and collateral estoppel is somewhat confusing, primarily due to our failure to clearly and consistently distinguish the two separate doctrines. The former, also known as claim preclusion, requires a plaintiff to bring all his claims against a party (or its privies) arising out of a particular set of circumstances in one action; while the latter, sometimes called issue preclusion, prevents relitigation of an issue already litigated by the parties (or their privies). In other words, “[u]nder the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action. [Cits.]” Parklane Hosiery Co. v. Shore, 439 U. S. 322, 326, n. 5 (99 SC 645, 58 LE2d 552) (1979); see also Block v. Woodbury, 211 Ga. App. 184 (1) (438 SE2d 413) (1993). As no issues were litigated and necessarily decided when plaintiff voluntarily dismissed its action against the City, the possibility of applying issue preclusion is easily eliminated. Thus, if plaintiff’s action is to be barred, it would have to be on the basis of claim preclusion.

Claim preclusion will bar a plaintiff’s action if the plaintiff has brought another action based on the same subject matter, the plaintiff had a full and fair opportunity to litigate the other action, the other action resulted in an adjudication on the merits, and the other action was against the same defendant or its privy. See Fowler v. Vineyard, 261 Ga. 454 (1) (405 SE2d 678) (1991); OCGA § 9-12-40. Plaintiff’s claims against the City and CAR involve the same subject matter, and although plaintiff did not litigate its claims against the City, it had the opportunity to do so. And contrary to plaintiff’s assertion, a voluntary dismissal with prejudice is a final adjudication on the merits for purposes of claim preclusion. See Fowler, 261 Ga. at 456 (2).

However, the City and CAR are neither identical parties nor privies. In supplying plaintiff with allegedly deficient plans and specifications, CAR was acting as the City’s agent. “Although a master has privity with his servant and can claim the benefit of an adjudication in favor of the servant (cit.), a servant is not in privity with the master so as to be able to claim the benefit of an adjudication in favor of the master.” (Emphasis supplied.) Gilmer v. Porterfield, 233 Ga. 671, 674 (2) (212 SE2d 842) (1975). McNeal v. Paine, Webber &c., 249 Ga. 662 (2) (293 SE2d 331) (1982) created an exception to the general rule of Gilmer by distinguishing Gilmer and holding that an employee could be in privity with his employer. However, McNeal is in turn distinguishable from this case because McNeal involved issue preclusion rather than claim preclusion. There, the employer obtained a favorable jury verdict after acknowledging that if the employee was liable, it was liable. Thus, the prior adjudication in favor of the employer necessarily determined that the employee was not liable, and the plaintiff was precluded from relitigating this actually litigated and necessarily decided issue.

This distinction is an important one in terms of the policies underlying issue and claim preclusion. As the purpose of issue preclusion is to avoid relitigation of already litigated and necessarily decided issues, it is not illogical to determine privity on the basis of identical interests in the outcome of litigation and identical availability of defenses and evidence — in short, identical issues to be litigated. The purpose of claim preclusion, on the other hand, is to encourage plaintiffs to bring all their claims against a particular party in one action rather than separate actions. Similarity of issues bears little or no relationship to this purpose, so it makes no sense to use it as a basis for privity in this context. Moreover, the result in the trial court in this case exemplifies the danger of blindly taking rules or exceptions applicable to issue preclusion and applying them to claim preclusion: the promulgation of a rule which would make it impossible to voluntarily dismiss a claim against a principal without losing the claim against the agent, even though settlements and voluntary dismissals are clearly desirable. See Robinson v. Robinson, 261 Ga. 330, 331 (404 SE2d 435) (1991) (expressing “strong public policy” of encouraging settlements); cf. also Posey v. Med. Center-West, 257 Ga. 55, 58 (354 SE2d 417) (1987) (stating plaintiff ought to be able to release one defendant without releasing another, at least until he has full satisfaction of his claim).

Decided July 6, 1994

Reconsideration denied July 28, 1994

D. Michael Sweetnam, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, R. Michael Ethridge, Gregory H. Wheeler, for appellee.

Thus, unless an agent and principal otherwise have the “ ‘mutual or successive relationship to the same rights’ ” necessary to establish privity, see Block v. Woodbury, 211 Ga. App. at 186 (1), the general rule that a servant is not in privity with his master applies for purposes of claim preclusion. CAR’s reliance on Nannis Terpening & Assoc. v. Mark Smith Constr. Co., 171 Ga. App. 111 (318 SE2d 89) (1984) is misplaced because despite the superficial similarity in contextual facts (i.e., it was also a construction contract dispute between a general contractor and the preparer of allegedly faulty plans and specifications), Nannis also involved issue rather than claim preclusion. Moreover, the prior action in Nannis resulted in an award against rather than for the principal, and that award fully satisfied the claim plaintiff sought to pursue against the agent. The pertinent facts in this case are instead quite similar to those in Block v. Wood-bury, in which we held that a plaintiff’s claims against a corporation’s agent were not barred by a voluntary dismissal of those same claims with prejudice against the corporation. See 211 Ga. App. at 185-186.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.

       Plaintiff appeals the trial court’s grant of defendant’s motion for a directed verdict. We therefore view the evidence in a light most favorable to plaintiff. See Francis v. Cook, 248 Ga. 225 (1) (281 SE2d 548) (1981).

       After hiring plaintiff and CAR, the City was succeeded as governing authority by the Unified Government of Athens-Clarke County. For convenience, in this opinion we refer to both the City and its successor entity as “the City.”


text:
    A94A0726.
    GEORGIA POWER COMPANY v. GEORGIA INDUSTRIAL GROUP et al.
    (447 SE2d 118)
   Pope, Chief Judge.

Georgia Power appeals the superior court’s order reversing three orders of the Georgia Public Service Commission (Commission) authorizing Georgia Power to recover through riders or surcharges the costs of certain energy conservation programs and “interruptible service credits” paid to customers to reduce their supply of electricity during peak periods.

The issue in this case is whether such costs may be recovered through riders or whether they must be recovered through base rates utilizing the accounting procedure specified in OCGA § 46-2-26.1 for determining the rates to be charged. This case arose out of the legislature’s passage in 1991 of the Integrated Resource Planning Act (IRP), OCGA § 46-3A-1 et seq. The IRP requires utilities to file long-range energy plans for review and approval by the Commission. OCGA § 46-3A-2. It also requires certification by the Commission before a utility can construct or sell an electric plant, enter into a long-term power purchase, or spend money on “demand-side capacity options” (programs that reduce the demand for electricity). OCGA §§ 46-3A-1 (4); 46-3A-3 (a). The IRP allows a utility to recover, inter alia, its costs for any certified demand-side capacity option and an additional sum as determined by the Commission to encourage the development of such demand-side programs. OCGA § 46-3A-9.

In accordance with the IRP, Georgia Power filed its first integrated resource plan with the Commission in January 1992. Although Georgia Power sought approval of 14 demand-side programs for its residential and commercial and industrial customers at this same time, it subsequently withdrew most of these programs with the intent to resubmit revised programs. In September 1992, Georgia Power filed revised demand-side programs for its residential customers and sought a proposed residential demand-side cost recovery rider to recover the costs of such programs. The rider proposed to pass through to residential customers (except low income customers) the expected program costs through 1993, subject to a true-up against actual program costs in a future proceeding at the end of 1993. Any over or under collection would be used, together with projected costs for 1994, to set the rider for 1994. On October 6, 1992, the Commission suspended the proposed residential rider for a period of five months to allow it ample opportunity to address the issues involved. In December 1992, Georgia Power filed new demand-side programs for its commercial and industrial (C & I) customers and sought two proposed recovery riders to recover the costs of such programs from its customers. One rider applied to large and the other to smaller C & I customers. The Commission held extensive hearings on both the proposed residential and commercial and industrial programs and riders.

Earlier, the Commission had approved two interruptible service riders pursuant to which Georgia Power would pay customers “inter-ruptible service credits” to reduce the electricity they receive during peak demand. In May 1992, the Commission entered an accounting order authorizing Georgia Power to defer payments as to certain of these credits and deferred a final decision as to Georgia Power’s cost recovery of such payments until it considered Georgia Power’s proposed demand-side programs. On January 4, 1993, the Commission issued Certificate of Public Convenience and Necessity No. GPC-1SS, the first of the three Commission orders in question. The Commission held that Georgia Power should be allowed to recover the costs of its “interruptible service credits” through a rate rider since the credits were relatively new and there would be a time period necessary to determine participation levels and customer responses.

On January 11, 1993, the Commission issued Certificate of Public Convenience and Necessity No. GPC-l-DSM, which approved Georgia Power’s residential demand-side programs and, for a three-year trial period, its residential demand-side cost recovery rider. On August 6, 1993, the Commission issued Certificate of Public Convenience and Necessity No. GPC-2-DSM, which approved the demand-side programs Georgia Power proposed for its C & I customers and the two riders to recover the costs of such programs for a three-year trial period.

Appellee Georgia Industrial Group appealed to the Superior Court of Fulton County that portion of all three orders allowing Georgia Power to recover the costs of its demand-side programs and its “interruptible service credits” through a rider mechanism. The. superior court reversed the Commission’s orders, finding that such expenses are recoverable only through the test year rate case procedure prescribed by OCGA §§ 46-2-25 and 46-2-26.1, which was not followed in this case. Georgia Power brought this appeal from the superior court’s order, and we reverse.

1. Georgia Power first argues the superior court erred in finding the Commission’s orders did not comply with OCGA § 46-2-25. Pursuant to that section, before any change to any rate, charge, classification, or service can be made, the utility must file notice of the proposed change with the Commission and the public at least 30 days before the proposed change is to take effect. OCGA § 46-2-25 (a). It further provides that the Commission may suspend the application of the proposed change for up to five months during which time it can hold hearings on the proposal. OCGA § 46-2-25 (b). Our review of the record reveals that Georgia Power gave the requisite notice of the proposed riders and that the Commission followed the procedure prescribed by § 46-2-25 in considering such riders. As noted above, the Commission suspended the proposed residential rider for a period of five months pending review, and held extensive hearings on both the proposed residential and commercial and industrial programs and riders. Accordingly, the superior court erred in finding the Commission’s orders violated OCGA § 46-2-25.

2. The crux of Georgia Power’s argument on appeal, however, is that the superior court’s ruling is erroneous because the future test year accounting method set forth in OCGA § 46-2-26.1 only applies to general rate cases, which these proceedings do not involve, and because the IRP (OCGA § 46-3A-9) requires use of an accounting method different from the test year statute since the test year statute bases rates on estimated costs and the IRP requires recovery of actual costs.

OCGA § 46-2-26.1 (“Accounting methods to be used by electric utilities in ratemaking proceedings”) provides in pertinent part: “(b) In any proceeding to determine the rates to be charged by an electric utility, the electric utility shall file jurisdictionally allocated cost of service data on the basis of a test period, and the commission shall utilize a test period, consisting of actual data for the most recent 12 month period for which data are available, fully adjusted separately to reflect estimated operations during the 12 months following the utility’s proposed effective date of the rates. ...” Thus, pursuant to this future test year method, utility rates are established after an analysis of combined revenue, expenses and investment forecasted for a future 12-month period. We agree with Georgia Power that § 46-2-26.1 sets forth the accounting method to be used in determining the general rates to be charged customers rather than issue-specific rates or riders to be charged a particular group of customers. In support of this conclusion, we note that Georgia Power has cited in the record to a number of occasions in which the Commission has approved rate riders without utilizing the test year method. For the reasons discussed below, we further hold that § 46-3A-9 of the IRP gives the Commission the authority to approve recovery of demand-side costs outside of a general rate case and the test year statute.

Traditionally, electric utilities have been concerned with selling electricity and building new power plants to meet increased demands for electricity. Thus, under traditional ratemaking principles (the test year method), a utility’s revenues are tied directly to how much electricity it sells. With the advent of integrated resource planning, however, the focus has been on ensuring the efficient use of electricity and the resources used to produce it. As noted earlier, demand-side programs are those which encourage customers to reduce their demand for electricity; often they involve incentives paid to customers to buy more energy efficient equipment for their homes and businesses. However, because demand-side investments result in less electricity being sold, they necessarily reduce the utility’s revenues and earnings. For this reason, the legislature enacted OCGA § 46-3A-9, which allows utilities to recover the cost of demand-side programs plus an additional amount as an incentive to develop such programs: “The approved or actual cost, whichever is less, of any certificated demand-side capacity option shall be recovered by the utility in rates, along with an additional sum as determined by the commission to encourage the development of such resources. The commission shall consider lost revenues, if any, changed risks, and an equitable sharing of benefits between the utility and its retail customers.”

We read this provision to say that a utility may recover the actual or approved costs of its demand-side programs by passing along such costs directly to its ratepayers along with an additional sum or incentive (as determined by the Commission) to encourage it to develop such programs. It seems clear to us that the legislature intended to treat demand-side costs outside of general ratemaking procedures by virtue of the fact that it provided for the utility to recover through rates not only its costs of such programs but an additional financial incentive to develop such programs over and above its overall rate of return. We further note that in providing for utilities to recover the cost of constructing new power plants, the legislature specified in OCGA § 46-3A-7 (a) that a utility should be permitted to include in its “rate base” the full amount of approved construction costs absent a showing of “fraud, concealment, failure to disclose a material fact, imprudence, or criminal misconduct.” By contrast, § 46-3A-9 simply says that the utility shall recover its demand-side costs “in rates.” Had the legislature intended for recovery of demand-side costs to be accomplished through traditional ratemaking principles, it would have specified that such costs could be put in the rate base as it did with power plant construction costs.

Finally, utilization of the test year method for calculating recovery of demand-side costs is unnecessary and would likely preclude the legislative mandate that utilities be allowed to recover their actual costs of such programs. ÓCGA § 46-3A-9. First, the purpose of the test year method is to analyze a utility’s revenues, expenses and investment forecasted for an entire year and determine whether it is earning an appropriate return. See OCGA § 46-2-26.1. Since § 46-3A-9 authorizes a utility to recover the exact costs of its demand-side programs plus an incentive, there is no need to utilize the test year analysis to look at its overall earnings.

Decided July 12, 1994

Reconsideration denied July 28, 1994

Troutman Sanders, Douglas L. Miller, Hugh M. Davenport, Robert P. Williams II, Norman L. Underwood, for appellant.

Sutherland, Asbill & Brennan, C. Christopher Hagy, Randall D. Quintrell, Peyton S. Hawes, Jr., Nancy G. Gibson, Marilyn J. Thompson, for appellees.

Second, use of the test year method will not allow a utility to recover its exact costs of such programs plus an additional amount as an incentive because the test year method is not tied to recovery of specific costs but to an overall rate of return. However, under the rider mechanism approved by the Commission, which contains a true-up provision for factoring in any over or under collection of program costs in setting the rider for the next year, the stated purpose of recovering the actual or approved costs of such programs will be met. See OCGA § 46-3A-9.

“ ‘The cardinal or pre-eminent rule governing the construction of statutes is to carry into effect the legislative intent and purpose if that is within constitutional limits.’ [Cit.]” Lewis v. City of Smyrna, 214 Ga. 323, 326 (104 SE2d 571) (1958). Because use of the test year statute for calculating recovery of demand-side costs would frustrate the legislature’s stated intent in encouraging utilities to develop such programs, we conclude the superior court erred in holding recovery of such costs must be accomplished pursuant to OCGA § 46-2-26.1 and that the Commission could not effectuate recovery of such costs through the use of a rider mechanism.

Judgment reversed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur. McMurray, P. J., disqualified.

       Appellees Consumers’ Utility Counsel and Georgia Textile Manufacturer’s Association, intervenors in the proceedings before the Commission, also made appearances in the appeal to superior court.


text:
    A94A0733.
    GENERAL CAR & TRUCK LEASING SYSTEM, INC. v. WOODRUFF et al.
    (447 SE2d 97)
   Pope, Chief Judge.

Appellant General Car & Truck Leasing System, Inc. (“General”) appeals the grant of summary judgment to appellees Randy Woodruff and Eastern Trailer Sales, Inc. (“Eastern”) holding, inter alia, that General was obligated to provide primary liability insurance on a ve-hide it rented to appellees.

Woodruff, on behalf of his employer Eastern, rented a vehide from General. As Woodruff was returning the vehide to General, he was involved in an accident with Harry and Maxine Tsioumas. Wood-ruff was cited for following too closely for which he apparently paid a fine. Eastern, which was insured by Commonwealth General Insurance Company (“Commonwealth”), had a rental account with General and had on file with it a certificate of insurance showing General as the certificate holder or loss payee and additional insured. General also carried liability insurance on its own vehicles.

The administratrix of the Tsioumases’ estate brought suit against Woodruff, Eastern, General, and Commonwealth. Eastern and Wood-ruff cross-claimed against General alleging it provided primary liability coverage for the accident pursuant to the rental agreement between the parties. General cross-claimed against Eastern and Commonwealth alleging they were obligated to provide primary coverage. General also claimed that any coverage it did provide was excluded by virtue of Eastern’s violation of various terms of the agreement and requested indemnity from Eastern. Both sides filed cross-motions for summary judgment. The trial court granted appellees’ motion and denied General’s motion, holding that General provided primary coverage under the agreement, that certain exclusions in the agreement were unenforceable, and that Eastern was not required to indemnify General.

1. General argues the trial court erred in finding it provided primary liability insurance because this court has interpreted OCGA § 40-9-102 as requiring the renter to provide primary coverage for the rental vehicle. OCGA § 40-9-102 provides in pertinent part that “[a]ny person who rents motor vehicles from a U-drive-it owner is required to provide his own insurance. . . .” General contends this court’s decision in Jones v. Wortham, 201 Ga. App. 668 (411 SE2d 716) (1991), interpreted OCGA § 40-9-102 as requiring the renter’s insurance to be primary in all instances such that the parties cannot contract otherwise.

Jones involved a dispute between a self-insured U-drive-it owner and the renter’s insurance carrier concerning who was required to provide primary coverage for the rental vehicle where the rental agreement contained a clause stating that the renter’s insurance was primary. 201 Ga. App. at 669. Noting that OCGA § 40-9-102 requires renters to provide their own insurance, we said “[a]lthough the legislature has not spoken to the specific issue raised herein, we have considered the statutes, and we conclude that in the instant case, the operator’s insurance should be primary and the owner’s insurance should afford excess coverage, if any.” Id. at 670. Because this language does not hold that the renter and owner cannot, under any circumstances, contract between themselves for the owner’s insurance to be primary, we find General’s argument to be without merit.

2. General next argues that the trial court erred in finding its coverage was primary because Woodruff and Eastern agreed in the rental agreement that the renter would provide primary liability insurance on the rental vehicle. Paragraph 4 on page 1 of the rental agreement provides in pertinent part as follows:

“(a) The vehicle is covered by an automobile liability insurance policy, . . . and Renter being as assured under said policy agrees to comply with and be bound by all the terms, conditions, limitations and restrictions thereof. . . . The liability insurance to be furnished by Owner pursuant to this agreement shall not exceed $300,000 for all injuries resulting from any one accident. The liability insurance extended hereunder (a) excludes coverage of Renter or the driver while the vehicle is used, operated or driven in violation of any of the provisions hereunder. . . .

“(b) Renter may by agreement on page 2 of this contract provide primary automobile liability insurance to protect Owner, Renter and their respective agents, servants and employees covering liability arising out of the ownership, use, operation, maintenance, loading or unloading or condition of the rented vehicle. . . .”

Page 1 of the rental agreement includes a box which contains the following language: “Renter and owner agree that renter shall provide all primary automobile liability insurance coverage and renter specifically acknowledges the terms and conditions of Para 4(b), page 1.” Inside the same box, there exist two signature spaces, one marked “owner” and one marked “renter,” neither of which contain signatures. The bottom of page 1 contains the following language underneath which appears Woodruff’s signature: “Contract on page 1 and page 2 is agreed to by owner and renter.”

General argues that Woodruff’s signature on the bottom of page 1 indicates his and Eastern’s agreement with paragraph 4 (b) providing that the renter would provide primary liability insurance. We disagree. Paragraph 4 (b) states that the renter may provide primary coverage by indicating his agreement to do so on page 1. Because Wood-ruff did not sign the signature blocks indicating his agreement to provide primary coverage pursuant to paragraph 4 (b), we cannot say that he and Eastern agreed in the rental agreement to provide primary liability insurance. Given the lack of signatures or initials in the requisite signature blocks, Woodruff’s signature at the bottom of page 1 was not sufficient to indicate his agreement to provide primary coverage under paragraph 4 (b). See Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 711 (1) (300 SE2d 673) (1983).

We also reject General’s contention that the absence of signatures is immaterial because industry custom dictates that when a lessee has a certificate of insurance on file with a rental agency, the lessee’s insurance shall be primary. The fact that Eastern had a certificate of insurance on file with General indicates General’s compliance with the requirement of OCGA § 40-9-102 that a U-drive-it owner determines that a renter has insurance before furnishing a rental vehicle. However, because the rental agreement contains a merger clause stating that “the terms and conditions of the entire contract are set forth on both sides of this instrument,” we cannot consider the certificate of insurance in determining which entity is required to provide primary liability coverage under the rental agreement. As such, the trial court correctly found that General provided primary liability coverage under the agreement.

3. General next argues that the trial court erred in denying its motion for summary judgment because, even assuming it did agree to provide primary liability insurance, any such coverage is excluded because Woodruff and Eastern violated several provisions of the rental agreement. Paragraph 1 (a) of the agreement prohibits the renter from operating the vehicle “[i]n violation of any law, ordinance, rule or regulation of any governmental agency or body. . . .” Paragraph 8 provides that the renter “agrees to report any accident loss or damage to the Vehicle to the Owner immediately, and in writing within 24 hours after such accident loss or damage.” Paragraph 4 (a) excludes coverage provided by General “while the vehicle is used, operated or driven in violation of any of the [agreement’s] provisions.” General argues appellees violated paragraphs 1 (a) and 8 of the agreement because Woodruff was cited for following too closely in violation of OCGA § 40-6-49 (a) for which he paid a fine and because appellees failed to provide written notice of the accident within 24 hours of it.

The trial court found an exclusion of coverage for a mere traffic violation was unenforceable as a matter of public policy. General contends, however, that this court’s recent decision in Auto-Owners Ins. Co. v. Jackson, 211 Ga. App. 613, 615 (440 SE2d 242) (1994), indicates that such an exclusion is enforceable. In Auto-Owners, we held that an exclusion for intentionally caused damage was not void as against public policy since the injured third party had access to other insurance funds. Id. at 614-615. Although it is clear that other insurance will be available to the Tsioumases’ estate if General’s coverage is excluded, Auto-Owners is inapplicable to the instant provision since we find that a blanket exclusion for any violation of the motor vehicle code is void as against public policy regardless of whether other insurance coverage is available. In Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 338, n. 5 (329 SE2d 136) (1985), the Supreme Court stated that exclusions of liability coverage for speeding, running a red light, or failing to stop at a stop sign would appear to be unenforceable as a matter of public policy. As the Supreme Court noted in Cotton States, were we to accept General’s argument, we would be validating exclusions for any minor traffic violation, a result we find unacceptable since we can think of no reason why one would need liability insurance unless there is a possibility of liability such as, for example, running a red light or following too closely. See 254 Ga. at 340. We thus find the trial court did not err in finding paragraph 1 (a) of the agreement to be void as against public policy and in denying General’s motion for summary judgment on this issue.

The trial court also found the notice provision of paragraph 8 unenforceable as a matter of public policy. In Ginn v. State Farm Mut. Auto. Ins. Co., 196 Ga. App. 640, 642 (396 SE2d 582) (1990), we reaffirmed that, as to third parties, lack of notice of the accident is not a viable defense to the insurer. Here, however, it is clear that the injured third party has access to other coverage and the owner is seeking to enforce a notice provision as between it and the renter. Given this, we find the trial court erred in holding the notice provision was unenforceable as a matter of public policy as between the renter and the owner. See Auto-Owners, 211 Ga. App. at 615; Travelers Ins. Co. v. Progressive Preferred Ins. Co., 193 Ga. App. 864 (389 SE2d 370) (1989).

However, we note that it is undisputed that appellees immediately reported the accident to General as required by paragraph 8. Although General provided affidavits of an area manager and executive vice president that, to their knowledge, no written notice was given General within 24 hours, Eastern contends written notice of the accident damage was given on the day of the accident by writing the damage sustained to the vehicle across the face of General’s rental agreement. Based on the above, we find material questions of fact exist concerning whether General received written notice of the accident damage and, if not, whether it was prejudiced by Eastern’s failure to comply with this technical requirement. As such, the trial court did not err in denying General’s motion for summary judgment on this issue.

4. General’s final enumeration is that the trial court erred in denying its motion for summary judgment on the ground that the rental agreement required appellees to indemnify it for all loss, damage and expense resulting from their violation of paragraphs 1 (a) and 8 of the agreement. For the reasons discussed in Division 3 above, we find the trial court did not err in denying General’s motion for summary judgment on the issue of indemnification.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Smith, J., concur.

Decided July 5, 1994

Reconsideration denied July 28, 1994.

Sullivan, Hall, Booth & Smith, Jack G. Slover, Jr., A. Spencer McManes, Jr., for appellant.

Smith & Polstra, Gary W. Smith, Saveli & Williams, Tash J. Van Dora, Charles M. Dalziel, Jr., Steven R. Thornton, for appellees.


text:
    A94A0742.
    FIDELITY ENTERPRISES, INC. v. BELTRAN et al.
    (447 SE2d 150)
   Pope, Chief Judge.

Plaintiff in this legal malpractice action appeals from the trial court’s dismissal of its claim. Plaintiff sued defendant lawyer and his firm, alleging that the lawyer’s below-standard legal services resulted in plaintiff’s loss of a prior law suit. Plaintiff filed an expert affidavit with its complaint as required by OCGA § 9-11-9.1, but defendants challenged the sufficiency of the affidavit in their answer and filed a motion to dismiss. Plaintiff filed a second affidavit in response, and later voluntarily dismissed the case. It then refiled its complaint within six months, with a third affidavit. See OCGA § 9-2-61. Defendants challenged the sufficiency of the affidavit in a motion to dismiss. Plaintiff appeals the grant of this motion to dismiss, and we reverse.

1. Defendants are correct in their assertion that we must examine the sufficiency of the first affidavit submitted. “ ‘Amended paragraphs (e) and (f) of OCGA § 9-11-9.1 provide that the failure to attach an expert affidavit in a professional malpractice case renders the complaint subject to dismissal and is a defect which cannot be amended except where the failure to attach the (affidavit) “was the result of a mistake,” and unless such failure was “the result of a mistake,” such complaint shall not be subject to the renewal provisions of OCGA § 9-2-61 after the applicable period of limitation.’ [Cit.] ‘The renewal statute is available only where the original action was a “valid suit” (cit.); if a complaint is dismissed for a defect that is nonamendable, there is no “valid suit” to be renewed.’ [Cit.]” Lyberger v. Robinson, 207 Ga. App. 845, 846 (429 SE2d 324) (1993).

2. Plaintiff argues that its first affidavit was sufficient to meet the requirements of OCGA § 9-11-9.1, and we agree. “A Section 9-11-9.1 affidavit should be construed most favorably to the plaintiff and all doubts should be resolved in plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible. Bowen v. Adams, 203 Ga. App. 123, 124 (416 SE2d 102) (1992).” Gadd v. Wilson & Co., 262 Ga. 234, 235 (416 SE2d 285) (1992). While it is not sufficient to simply state that defendant did not follow the procedures expected of a member of his profession (Edwards v. Vanstrom, 206 Ga. App. 21 (424 SE2d 326) (1992)), it is sufficient to state what the defendant did not do that he should have done (or vice versa); it is not necessary to use any magic words or to explicitly state that the specified act or omission violated the applicable standard of care. Minster v. Pohl, 206 Ga. App. 617 (4a) (426 SE2d 204) (1992). In short, the affidavit is adequate if, “construing it most favorably for [plaintiff] and resolving all doubts in her favor, it constitutes an affirmation that [plaintiff’s] complaint is not frivolous and that, if true, the allegations therein would authorize a recovery for an injury resulting from [defendant’s professional] malpractice.” Bowen v. Adams, 203 Ga. App. at 124.

Decided July 15, 1994

Reconsideration denied July 28, 1994

Daisy F. Peppers, pro se.

Arnold, Golden & Gregory, Michael S. Wakefield, for appellees.

The sufficiency of plaintiff’s original affidavit in this case is a close call, but such calls must go to the plaintiff under Gadd and Bowen. Construing the affidavit in a light most favorable to plaintiff, it states that as a result of defendant lawyer’s failure to consult with his client or interview witnesses prior to trial in the underlying action, defendant failed to introduce documents which were available and were necessary to prove plaintiff’s case. This is a specification of a negligent omission with a factual basis. Unfortunately, the affidavit also includes so many useless generalities about the responsibilities of attorneys that it is easy to overlook its crux. However, while the affidavit is poorly drafted and hard to follow, it meets the standard set forth above. Cf. Samuelson v. Lord &c., Inc., 205 Ga. App. 568 (1) (423 SE2d 268) (1992) (affiant’s statement that engineer designing roadway “might have recommended that a retaining wall be constructed along the frontage of the . . . property in such a way as to permit continuous pedestrian traffic” but failed to do so was sufficient presentation of negligent omission with factual basis). Accordingly, the trial court erred in dismissing plaintiff’s complaint.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.


author: McMurray, Presiding Judge.

text:
    A94A0837.
    SAFECO INSURANCE COMPANIES OF AMERICA v. HARRIS.
    (447 SE2d 128)
   McMurray, Presiding Judge.

Plaintiff Harris was insured by defendant Safeco Insurance Companies of America when he was injured in a motor vehicle collision on May 2, 1990. Subsequently, plaintiff filed this action seeking additional personal injury protection coverage based on the failure of the application for his insurance policy to conform with the provisions of former OCGA § 33-34-5 (b).at the time of the accident. This statute required an application for a new policy of automobile insurance to contain a statement in boldface type indicating that the optional coverage listed in former OCGA § 33-34-5 (a) had been explained to the applicant and also provided that this statement be signed by the applicant. Defendant Safeco appeals from the grant of summary judgment in favor of plaintiff holding that the statement in its application form was not in compliance with the law. Held:

In the absence of compliance with former OCGA § 33-34-5 (b) there is no effective rejection of the optional coverage and such may be claimed by tendering the appropriate premiums. Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 712 (1) (300 SE2d 673). See also Jones v. State Farm Mut. Auto. Ins. Co., 156 Ga. App. 230, 234 (1) (274 SE2d 623). The definitive case in regard to whether an.insurance application satisfies the requirement for boldface type is Southern Guaranty Ins. Co. of Ga. v. Goddard, 259 Ga. 257 (379 SE2d 778), which defines boldface type as “that print which exhibits a face sufficiently heavy in appearance to cause it to be more conspicuous than the print which surrounds it.” Id. at 258.

In the case sub judice, the sole issue is whether the required statement was printed in boldface type. The application form in this case contains an adequate statement signed by the applicant. The problem is that the statement is printed in red type which is no heavier and actually may be less heavy in appearance than the surrounding type. Defendant seizes on the references to conspicuousness in the original definition and cases which follow it, but there is no avoiding that the red type in the application form in this case if conspicuous is so only because of color and not because heavier in appearance. The only previous case dealing with color variations in the print was Duncan v. American Mut. Fire Ins. Co., 197 Ga. App. 548 (398 SE2d 759), where some of the words in the statement were in red print, albeit also in bold type as defined by the Supreme Court of Georgia.

The legislature required “boldface type,” the Supreme Court defined this term, and the type in the application at issue simply does not comply because it is not heavier in appearance. We must affirm the judgment of the state court.

Decided July 13, 1994

Reconsideration denied July 28, 1994

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., T. Andrew Graham, for appellant.

Dozier, Akin, Lee & Graham, L. Z. Dozier, Jr., for appellee.

Judgment affirmed.

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


text:
    A94A0882.
    ROBERSON v. THE STATE.
    (447 SE2d 640)
   Pope, Chief Judge.

Defendant James Arnold Roberson was convicted by a jury of two counts of child molestation. The victims were two brothers who were three and five years old when the crimes occurred. Roberson appeals following the denial of his motion for new trial.

1. (a) Roberson first argues the trial court erred in denying his motion for new trial because the evidence was insufficient as a matter of law to support his convictions. Viewed in a light most favorable to the verdict, the evidence showed that in June 1989 the victims, Jonathon and Joshua S., and their parents went to stay with their paternal grandparents. Roberson was living with the grandparents at that time. On the evening of June 25, Jonathon started screaming that his rear end hurt while his mother was giving him a bath. She noticed the area around his anus was red and, when she asked him what was wrong, he said “Robby stuck his finger up me.” Jonathon made the same statement to his father when he questioned Jonathon. The parents contacted the authorities and took Jonathan to the emergency room that night. Jonathon also told the attending physician that Robby had put his finger in his rear. The physician, who found irritation with redness around Jonathon’s anus, testified this was consistent with anal penetration and revealed to him the possibility of child abuse. Jonathon testified that his mother had been bathing him in the tub and had left the room to get his clothes when Robby came in and stuck his finger in his rear. Joshua testified that Robby had put his finger in his butt while he was in the bathroom being bathed and his mother was turned around. He did not immediately tell anyone because Robby threatened to hurt him if he did. The mother testified that Robby would sometimes assist her in bathing the children. Roberson denied having molested either of the children. Although not overwhelming, the evidence was sufficient to authorize rational jurors to find Roberson guilty beyond a reasonable doubt of both counts of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(b) Roberson next argues the evidence was insufficient as to Count 1 because the State failed to prove he committed the offense on the date alleged in the indictment. Count 1 of the indictment charged Roberson with committing the offense of child molestation on Jonathon S. on June 25, 1989. “In proving the time of the commission of an offense the State is not, as a general rule, restricted to proof of the date alleged in the indictment, but is permitted to prove its commission on any date within the statute of limitations. The date here was not alleged as material so as to require its proof with specificity.” (Citations and punctuation omitted.) Moore v. State, 207 Ga. App. 892, 894 (1) (429 SE2d 335) (1993). Because the evidence was sufficient to prove the offense as charged within the applicable statute of limitation, this enumeration is without merit.

(c) Roberson also argues the evidence was insufficient to establish venue in Spalding County. Where, as here, the defendant has not contested venue at trial, slight evidence of venue is sufficient. Vincent v. State, 210 Ga. App. 6 (1) (435 SE2d 222) (1993). The State produced evidence that defendant committed the offenses on the children at their grandparents’ home which is in Spalding County. This was sufficient to establish venue in Spalding County beyond a reasonable doubt.

2. Roberson next argues the trial court erred in not allowing him to have an independent examination conducted as to the competency of the two minor children. He contended in his motion that such an examination was necessary to test the reliability of the children’s testimony. On appeal, however, he contends the trial court was required to hold a competency hearing pursuant to the Supreme Court’s decision in Sizemore v. State, 262 Ga. 214 (416 SE2d 500) (1992). In Sizemore, the Supreme Court “construe[d] § 24-9-5 (b) as excepting children solely from a competency challenge based on the allegation they do not understand the nature of an oath” and went on to hold that “children, like adults, are subject to a competency challenge on the ground they do not have the use of reason because of mental retardation.” 262 Ga. 216-217. Unlike Sizemore, Roberson did not request a competency hearing on the ground the children did not have the use of reason. In fact, he did not even claim that the children were incompetent; only that their reliability needed to be tested. The trial court thus did not err in denying Roberson’s motion. See Norton v. State, 263 Ga. 448, 449-450 (3) (435 SE2d 30) (1993).

3. Roberson claims the trial court erred in allowing the State to introduce evidence of his homosexual relationship with the children’s grandfather. Evidence of homosexuality (and indications of such sexual preferences) are admissible to show a defendant’s bent of mind toward the sexual activity with which he was charged. See Cunning ham v. State, 196 Ga. App. 68 (1), (2) (395 SE2d 330) (1990); Jones v. State, 172 Ga. App. 347, 348 (2) (323 SE2d 174) (1984); Gunter v. State, 163 Ga. App. 824 (2) (296 SE2d 622) (1982); Felker v. State, 144 Ga. App. 458, 459 (2) (241 SE2d 576) (1978). This enumeration is without merit.

4. He next argues the trial court erred in allowing Carolyn Harmon, a clinical social worker who treated the children, to give her opinion as to the children’s credibility. During the State’s direct examination of Harmon, the prosecutor asked if she had an opinion as to the children’s ability to understand the nature of an oath and to testify in court. The trial court overruled Roberson’s objection to the question and the witness responded that she believed the children understood the difference between the truth and a lie and the consequences of lying. This case is controlled by our decision in State v. Oliver, 188 Ga. App. 47, 50 (2) (372 SE2d 256) (1988), in which we held that an expert witness testifying that the victim could distinguish between the truth and a lie amounted to improper bolstering of the victim’s credibility. “In no circumstance may a witness’ credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth. An expert witness may not testify as to his opinion of an ultimate issue of fact unless the inference to be drawn from the evidence is beyond the ken of the jurors. Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury. OCGA § 24-9-80. An expert witness may not testify as to his opinion of the victim’s truthfulness.” (Citations and punctuation omitted.) Id. at 50.

While an expert may testify generally about the ability of children of a certain age group to distinguish between the truth and a lie, Harmon’s testimony that she believed the victims were capable of distinguishing truth from fantasy essentially amounted to her testifying as to their credibility. Because the evidence against Roberson was not overwhelming and credibility of the witnesses was a key issue in the case, we cannot hold this error to be harmless. See Guest v. State, 201 Ga. App. 506, 507 (1) (411 SE2d 364) (1991). Accordingly, Roberson’s convictions must be reversed and a new trial held.

5. We will address Roberson’s remaining enumerations since they are capable of recurring on retrial. He next contends the trial court erred in admitting, pursuant to OCGA § 24-3-16 third-party testimony concerning out-of-court statements made by the children without making a finding of “sufficient indicia of reliability” as required by the statute. We disagree. “[W]e have held that it is implicit in the [trial court’s] admission of statements pursuant to OCGA § 24-3-16 that the trial court made the necessary finding [of sufficient indicia of reliability].” Calloway v. State, 202 Ga. App. 816 (415 SE2d 533) (1992); see also Windom v. State, 187 Ga. App. 18, 19 (2) (369 SE2d 311) (1988).

6. In a related enumeration, he claims the trial court erred in allowing Harmon to testify that Joshua told her Robby put his finger in his butt and touched his private in front and that he saw Robby put his finger in Jonathon’s butt. Harmon’s testimony that Joshua told her Robby had molested him was properly admitted under OCGA § 24-3-16. Even assuming Harmon’s testimony that Joshua told her he saw Robby molest Jonathon was not permissible under this section, the admission of this testimony was harmless error since it was cumulative of other testimony presented at trial. See Kelly v. State, 197 Ga. App. 811, 814 (3) (399 SE2d 568) (1990).

7. The next enumeration is that the trial court erred in admitting the testimony of an investigator that the grandfather told him that he and Roberson were involved in a homosexual relationship. Roberson objected to the testimony as hearsay which the trial court overruled because the grandfather had already testified to the relationship. Even assuming the investigator’s testimony was inadmissible hearsay, we find no reversible error since “[e]vidence which is cumulative of other legally admissible evidence of the same fact, renders harmless admission of incompetent evidence. [Cits.]” Lynn v. State, 181 Ga. App. 461, 464 (2) (352 SE2d 602) (1987).

8. Roberson claims the trial court erred in allowing the emergency room physician to answer a hypothetical question which assumed facts not in evidence. On redirect, the prosecutor asked the doctor whether conducting a rectal examination of a child using a sanitary glove and lubrication would likely cause an inflammation of the rectal area. The doctor responded that it should not. Roberson claims this testimony was prejudicial because it implied that unlawful insertion of a dirty finger could cause such inflammation. We find no error here since defense counsel himself asked the doctor a similar question on cross-examination. In any event, the fact that an expert’s opinion may be based in part on facts not in evidence goes to its weight, not its admissibility. Krause v. Vance, 207 Ga. App. 615, 616 (1) (428 SE2d 595) (1993).

9. In his next enumeration, Roberson argues the trial court erred in allowing the State to ask a character witness whether she would still believe Roberson’s character was good if it was proved to her that he had in fact molested the two boys. We have held that it is not error to allow the State to pose such a hypothetical question to a character witness on cross-examination. See Mathis v. State, 175 Ga. App. 127, 128 (4) (333 SE2d 10) (1985); see also Franklin v. State, 230 Ga. 291, 292 (1) (196 SE2d 845) (1973).

10. Roberson argues it was error to refuse to give one of his jury instructions on the competency of the children to testify. We find no error in the refusal to give the charge as it contained an incorrect statement of the law concerning the competency of child witnesses. See OCGA § 24-9-5 (b); Syfrett v. State, 210 Ga. App. 185, 189 (7) (435 SE2d 470) (1993). To the extent the charge dealt with the chil-drens’ credibility, that portion of the charge was adequately covered in the trial court’s charge on witness credibility. See id.

Decided July 12, 1994

Reconsideration denied July 28, 1994

Wallace & Moss, Howard P. Wallace, for appellant.

Johnnie H. Caldwell, Jr., District Attorney, William T. Mc-Broom III, Assistant District Attorney, for appellee.

11. In his last enumeration, Roberson contends the trial court erred in charging the jury from Volume 2 of the Suggested Pattern Jury Instructions for Criminal Cases that direct evidence includes exhibits admitted during trial. He argues the charge was confusing because it instructed the jury that exhibits are direct evidence pointing immediately to the question at issue (his guilt of the crimes charged) when, in actuality, exhibits are real or physical evidence which may or may not be direct evidence. Although Roberson does not target any particular exhibits, he appears to argue that several of the exhibits admitted (which included magazine pictures showing men engaged in homosexual activity) were not direct evidence but circumstantial evidence which did not point immediately to his guilt.

The trial court charged the jury as follows: “As to direct evidence, ladies and gentlemen, that is the testimony given by a witness who has seen, or who has heard the facts to which he has testified. It includes any exhibits that have been admitted during the trial of the case. It is that evidence which points immediately to the question at issue.” This charge is a correct statement of the general law and a charge on direct evidence was warranted. Moore v. State, 202 Ga. App. 476, 481 (3) (414 SE2d 705) (1992). Although this charge could be worded better, we read it to say direct evidence includes exhibits admitted during the trial to the extent they point immediately to the question at issue. We thus find no error in the charge as given. In any event, we do agree that the jury could have been confused by this charge since the trial court also charged on the definition of indirect or circumstantial evidence from the pattern jury instructions. We thus find this enumeration to be without merit. See French v. State, 198 Ga. App. 210, 211 (5) (401 SE2d 67) (1990), rev’d on other grounds, 261 Ga. 424 (405 SE2d 35) (1991).

Judgment reversed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A0888.
    CROOK et al. v. FUNK et al.
    (447 SE2d 60)
   Pope, Chief Judge.

Plaintiff Barbara Crook brought this medical malpractice action against the Medical Center, an acute care hospital, and Drs. Mark Funk and William Macheski and their respective practices seeking damages for the death of her mother, Betty Smith. Plaintiff’s complaint alleged that Smith was admitted to the Medical Center’s intensive care unit (ICU) on December 14, 1990, complaining of numbness and tingling beneath her heart. She was moved from the ICU on December 16. Dr. Funk initially ordered a treadmill test for Smith but later advised her the test would be postponed due to her weakened condition. However, the test was administered the next day around 11:30 a.m. by Dr. Macheski, and Smith began to experience chest pains immediately afterward. She called the nursing staff for assistance but no one came until around 1:00 p.m. when she began gasping for air and a friend summoned a nurse. She died at approximately 1:40 p.m.

Plaintiff alleged defendants were negligent in failing to properly evaluate Smith’s condition, allowing her to undergo a treadmill test in view of her condition, and failing to diagnose and treat her aneurysm (the ultimate cause of her death). Plaintiff filed her complaint several days before the expiration of the statute of limitation and, pursuant to OCGA § 9-11-9.1 (b), timely supplemented her complaint with the affidavit of Dr. Robert Pieroni. Plaintiff also amended her complaint to add other children of the deceased as plaintiffs. Defendants moved to dismiss on the ground Dr. Pieroni’s affidavit failed to comply with OCGA § 9-11-9.1. The trial court granted defendants’ motions and dismissed the complaint, and plaintiffs appeal.

1. Dr. Pieroni’s affidavit stated that a certified copy of Smith’s hospital records was attached and incorporated therein. Defendants argue that an expert’s affidavit cannot incorporate extrinsic material by reference and that, without such incorporation, Dr. Pieroni’s affidavit fails to set forth a sufficient factual basis for plaintiffs’ claims of negligence. Plaintiffs, however, contend the affidavit stated a sufficient factual basis even without incorporation of the medical records.

OCGA § 9-11-9.1 (a) provides that: “In any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” As defendants correctly note, the expert’s affidavit cannot incorporate by reference matters required by OCGA § 9-11-9.1 to be set forth within the body of the affidavit. Cheeley v. Henderson, 261 Ga. 498 (405 SE2d 865) (1991), rev’g 197 Ga. App. 543 (398 SE2d 787) (1990). “[Consideration of essential evidentiary matters not included in the affidavit is improper. [Cit.]” HCA Health Svcs, of Ga. v. Hampshire, 206 Ga. App. 108, 110 (2) (424 SE2d 293) (1992).

Dr. Pieroni’s affidavit stated that Smith was removed from the ICU on December 16, that Dr. Funk ordered a treadmill test which she underwent the next day, and that she experienced chest pains afterward and died at approximately 1:40 p.m. Dr. Pieroni testified that Smith had “severely elevated blood pressure” which Dr. Funk had failed to treat properly, that Dr. Funk should not have ordered Smith to undergo a treadmill test since it was contraindicated in view of her elevated blood pressure and poor physical condition, and that Dr. Funk failed to diagnose and treat Smith’s aneurysm. As to Dr. Macheski, he stated that Dr. Macheski had failed to examine and evaluate Smith properly and should not have performed a treadmill test given her elevated blood pressure. As to the Medical Center, Dr. Pieroni stated that its agents and employees were negligent in allowing the treadmill test to be performed on Smith when it was contraindicated and in not responding timely to Smith’s distress after she underwent the test. In conclusion, he opined that defendants’ treatment and care of Smith fell below the level of care generally required of medical practitioners under similar conditions and like circumstances and that their failure to adhere to the applicable standards of care proximately caused Smith’s death.

“ ‘The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need file his answer.’ ” Bowen v. Adams, 203 Ga. App. 123, 124 (416 SE2d 102) (1992). “ ‘A Section 9-11-9.1 affidavit should be construed most favorably to the plaintiff and all doubts should be resolved in plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible. [Cit.]’ ” Ulbrich v. Batts, 206 Ga. App. 74, 75 (424 SE2d 288) (1992). As set forth above, Dr. Pieroni’s affidavit provided a factual basis for his opinion of negligence by specifying the dates and the procedure performed on Smith, describing aspects of her condition which in his opinion should have precluded defendants from requiring Smith to undergo such a procedure, and stating that defendants did not immediately come to Smith’s aid when she suffered distress following the procedure.

While an unfavorable construction of the affidavit might be possible, construing it most favorably for plaintiffs and resolving all doubts in their favor, we find it met the minimum requirements of OCGA § 9-11-9.1 (a). Although the factual basis set forth in the affidavit was somewhat brief, it was sufficient to support at least one negligent act or omission as to each of the defendants. We reject defendants’ contention that the factual basis and allegations of negligence must be contained in separate sentences since nothing in OCGA § 9-11-9.1 specifically requires this. We further reject defendants’ contention that any purported facts stated in Dr. Pieroni’s affidavit were nothing more than conclusory statements. As noted above, the expert’s affidavit need only set forth factual allegations, which if true, support at least one negligent act or omission; it need not state admissible facts or facts sufficient to withstand a motion for summary judgment. See Bowen, 203 Ga. App. at 124.

Decided June 23, 1994

Reconsiderations denied July 28, 1994

Brinkley & Brinkley, Jack T. Brinkley, Jr., Simmons & Toliver, A. Leroy Toliver, for appellants.

Layfield, Rothschild & Morgan, W. Donald Morgan, Jr., Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., C. Morris Mullin, Tisinger, Tisinger, Vance & Greer, David H. Tis-inger, John A. Harris, for appellees.

2. Defendant Medical Center also argues the affidavit was insufficient with respect to its registered nurse employees because Dr. Pier-oni is not competent to testify that the nurses were negligent. We disagree. Dr. Pieroni opined negligence on the part of the nurses for not timely responding to Smith’s distress after she underwent the treadmill test. He stated that he was familiar by his education, training, and experience with the degree of care and skill ordinarily employed by medical practitioners under similar conditions and circumstances as that presented by Betty Smith. Since nursing is a medical profession, we find Dr. Pieroni’s statement sufficient to encompass the nursing profession. See Tye v. Wilson, 208 Ga. App. 253 (430 SE2d 129) (1993). In any event, Dr. Pieroni’s expertise sufficiently overlapped with that of the nursing profession such that he was competent to state that it was negligence for the nurses not to respond to the calls for assistance of a cardiac patient who was in distress after having undergone a treadmill test. It certainly cannot be said that only a nurse would be competent to give expert testimony in this area. See id., 208 Ga. App. at 254.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.