author: Birdsong, Presiding Judge.

text:
    A97A0743.
    JOWERS v. THE STATE.
    (484 SE2d 803)
   Birdsong, Presiding Judge.

Appellant Mickey Jowers was indicted for rape, sexual assault against a person in custody, and violation of oath by a public officer. The alleged teenage victim, a female age 16, was taken into police custody and subsequently cited for underage drinking; thereafter, she was transported to the local law enforcement center. A deputy at the center informed the female she could depart the facility if she could get someone to pick her up. When the female was unable to find someone to come and get her, the appellant, a sworn county deputy sheriff, was called to transport her to her home. It is undisputed that the deputy was in an on-duty status that evening; he was duly armed and in uniform. The victim knew she was free to leave the center but not on her own; and she was informed by the deputy at the law enforcement center that he had signed her bond. Appellant arrived and the female entered his police vehicle. Appellant drove her to an isolated area and had sexual intercourse with her. Appellant made a pretrial statement admitting he had engaged in sexual intercourse with her but asserting the act was consensual; the female testified the act occurred against her will and that she was too afraid to protest verbally appellant’s sexual conduct. After the sexual act, she fled from the car and immediately made a fresh complaint regarding appellant.

After concluding that the female was not in custody at the time of the incident, the trial court granted appellant’s motion for a directed verdict of acquittal as to the charge of sexual assault against a person in custody. The jury returned a verdict of not guilty of rape and guilty of violation of oath by a public officer.

Appellant enumerates the following four errors: The State failed to prove the allegations against appellant beyond a reasonable doubt; the trial court erred by failing to direct a verdict of acquittal at the conclusion of the State’s case; the trial court erred by failing to direct a verdict of acquittal at the conclusion of defendant’s case; and the trial court erred by failing to grant a new trial on the grounds of the failure to prove the State’s case beyond a reasonable doubt and based upon the trial court’s failure to grant a directed verdict of acquittal as to the offense of which appellant was convicted. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) is the proper test for an appellate court to use in resolving questions of insufficiency of the evidence during the direct appeal of a judgment of conviction. Moreover, the reasonable doubt test established in Jackson v. Virginia, supra, “is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436).

2. Appellant (who at the time of the incident was a deputy sheriff) was charged in the indictment with violating his oath of office by engaging “in sexual contact with [the alleged victim] while she was in his custody in his capacity as a law enforcement officer.” Appellant contends the evidence was insufficient in two material respects: First, that the State failed to prove the terms of the oath of office administered to appellant and thus the jury had no basis on which to determine if the officer in fact violated his oath by his conduct with the female; second, that the State failed to prove that the female was in fact in custody at the time of the incident.

OCGA § 16-10-1 provides: “Any public officer who willfully and intentionally violates the terms of his oath as prescribed by law shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.” (Emphasis supplied.) This statute is plain, unambiguous, and on its face does not lead to any absurd or impracticable consequences; such a statute is simply construed by the court according to its terms and no further inquiry as to its interpretation is conducted. Diefenderfer v. Pierce, 260 Ga. 426, 427 (396 SE2d 227); see Chives v. State, 214 Ga. App. 786, 787 (449 SE2d 152). As a general rule, statutes must be construed to make all of their parts harmonize with a sensible and intelligent effect; in doing so, it is not to be presumed the legislature intended that any part would be without meaning. Houston v. Lowes &c., 235 Ga. 201, 203 (2) (219 SE2d 115). It is well established that a “criminal law should be plain and unambiguous and not dependent upon the current conflicting views of appellate judges. [Cit.] It has always been the law that criminal statutes must be strictly construed against the state. [Cit.]” Mitchell v. State, 239 Ga. 3 (1) (235 SE2d 509).

The charge in the indictment of violation of oath by a public officer pertinently averred that appellant, a deputy sheriff, took and then wilfully and intentionally violated the oath of office prescribed by law for the office of sheriff as follows: “I do swear that I will faithfully execute all writs, warrants, precepts, and processes directed to me as sheriff of this county, or which are directed to all sheriffs of this state, or to any other sheriff specially, which I can lawfully execute, and true returns make, and in all things well and truly, without malice or partiality, perform the duties of the office of sheriff of Coffee County, during my continuance therein, and take only my lawful fees, So help me God.” The charge also averred that the said oath was violated by appellant when he “did engage in sexual contact with [the alleged victim] while she was in his custody in his capacity as a law enforcement officer.”

The averment of the “terms” of the oath in the charge is identical to the “terms” of the oath of office which the legislature has “prescribed by law” for all sheriffs to take before entering the duties of their office. Compare OCGA § 15-16-4. Pursuant to OCGA § 45-3-7 this same oath of office also is prescribed by law to be taken by a deputy sheriff, such oath being the same as prescribed by law for the sheriff who is a deputy sheriff’s principal within the meaning of this statute.

The only evidence the State offered regarding the “terms” of the oath actually administered to appellant was the testimonial evidence of the county sheriff. The sheriff testified that he had personally administered an oath to appellant. The sheriff did not testify as to the actual “terms” of the oath which he administered; however, he answered in the affirmative when asked whether appellant had taken an oath “as a sheriff or deputy sheriff of this state to perform his duties for [the sheriff] as a deputy sheriff.” He also answered in the affirmative when asked whether on the date of the incident appellant “was under oath, sworn to uphold the laws of this state as a deputy sheriff here in Coffee county.” The sheriff did not testify expressly whether appellant had taken an oath which contained the “terms” as averred in the pertinent charge in the indictment. See generally OCGA § 16-10-1. Although the indictment accompanied the jury into the deliberation room, the trial court correctly charged the jury that the “indictment is not evidence and you are not to consider [it] as such.” See, e.g., Bostick v. Ricketts, 236 Ga. 304, 305 (223 SE2d 686).

The State contends that it has carried its burden of proof as to the offense of violation of oath by a public officer and that it did not have to prove an oath of office was administered as averred in the charge as such language was mere surplusage. We disagree. OCGA § 16-10-1 on its face makes it a felony offense for any public officer to wilfully and intentionally violate “the terms of his oath as prescribed by law.” We cannot hold that the averment of the “terms” of an oath of office in the charge using the exact language of that statute which prescribes by law the specific and clear “terms” of the oath of office required of such officer constitutes the averment of mere surplusage. Such a holding would be absurd; it would render the actual “terms” of an oath superfluous to a charge of the crime of violation of oath by public officer, notwithstanding that OCGA § 16-10-1 on its face unequivocally prohibits a public officer from wilfully and intentionally violating “the terms of his oath as prescribed by law.” Construing the above-cited statutes in pari materia, it is unmistakable that the “terms” of the oath averred to be violated are a necessary fact. This does not mean that the entire oath must be averred on each occasion, but only the terms thereof which were wilfully and intentionally violated by the public officer. In this case, however, the State elected to aver the entire oath of office prescribed by law and not merely the portion thereof which it sought to prove had been violated. It is a precedent of long-standing that “ ‘[i]n criminal law an unnecessarily minute, description of a necessary fact must be proved as charged; but an unnecessary description of an unnecessary fact need not be proved.’ ” Sanchez v. State, 197 Ga. App. 470, 474 (3) (398 SE2d 740). The averment in this charge was an unnecessarily minute description of a necessary fact and had to be proved as charged. This the State failed to do. Poole v. State, 262 Ga. 718 (425 SE2d 655), cited by the State, is both factually and legally distinguishable for this case; it involved the violation of a different oath and the legal issue addressed was the alleged vagueness of OCGA § 16-10-1. Also distinguishable is our questionable holding in Nave v. State, 171 Ga. App. 165 (1) (318 SE2d 753); appellee’s reliance on this case is not well founded.

Decided March 31,1997.

John A. Rumker, for appellant.

Richard E. Currie, District Attorney, for appellee.

Additionally, the evidence of record at best reflects that by taking the oath administered to him appellant was sworn to uphold the laws of this state. This particular “term” is not one expressly “prescribed by law” for the oath which a deputy sheriff must take. See generally OCGA §§ 15-16-4; 45-3-1; 45-3-7. Assuming without deciding that OCGA § 16-10-1 is capable of two constructions — specifically, that only the violation of those “terms” of an oath which are expressly prescribed by statute will give rise to the violation of oath by public officer, and that the violation of those “terms” of an oath which are either expressly or impliedly prescribed by statute will give rise to such violation — the State still cannot prevail. “ ‘[W]hen a criminal statute fairly and reasonably is subject to two constructions, one which would render an act criminal, the other which would not, the statute must be construed strictly against the State and in favor of the accused.’ ” Asberry v. State, 220 Ga. App. 40, 42 (467 SE2d 225). Cf. State v. Tullís, 213 Ga. App. 581 (445 SE2d 282), where this Court rejected the State’s contention that the commission of a misdemeanor while on duty constitutes a violation of a police officer’s oath of office, because he implicitly swore to uphold the laws of the State of Georgia.

In view of our holding we elect not to address appellant’s other contentions in support of his enumerations of error. While we do not condone appellant’s conduct, justice recognizes that “ ‘ “[t]he rights of the best of [mankind] are secure only as the rights of the vilest and most abhorrent are protected.” ’ ” Towler v. State, 188 Ga. App. 43, 46 (2) (372 SE2d 242).

Judgment reversed.

Ruffin and Eldridge, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A97A0791.
    BELT v. THE STATE.
    (485 SE2d 39)
   Birdsong, Presiding Judge.

A Muscogee County jury convicted Randall Belt on charges of aggravated assault, conspiracy to murder, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. The trial court merged the first two convictions for sentencing. On appeal, Belt challenges the sufficiency of the evidence and several of the trial court’s evidentiary rulings. Held:

1. Belt’s two enumerations challenging the sufficiency of the evidence are reviewed under the standard of Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560), with the evidence, and all reasonable inferences from the evidence, construed most strongly in favor of the verdict. The victim testified that he accompanied Belt and another man, Greer, on a late-night trip to Greer’s mother’s house. The conflicting evidence shows Greer apparently owed the victim money for drugs. According to the victim, Greer stopped the car on an isolated road after Belt stated he felt sick. When the victim got out of the car to assist Belt, both Greer and Belt rushed the victim and Greer shot the victim in the face with a pistol. When the victim fell, Belt and Greer began pulling him into the woods by his feet. The victim broke free and hid in the woods, where he heard Greer say, “find him, don’t let him get away” and saw Belt pass by carrying a thick wooden post. The jury heard that Greer pled guilty to the offense. Belt testified and claimed he knew nothing of Greer’s plans to shoot the victim and was forced to assist at gunpoint. However, around the time the attack occurred, a witness saw a man run out of the woods and get into the passenger side of a vehicle matching that driven by Greer. This testimony contradicted Belt’s claim of duress. Under the Jackson v. Virginia standard, a rational trier of fact could find appellant guilty of the offenses charged beyond Belt’s participation and conduct as a party to these crimes. See Grace v. State, 210 Ga. App. 718, 719 (1) (437 SE2d 485); Smith v. State, 205 Ga. App. 810, 812 (1) (424 SE2d 56).

2. In two enumerations of error, Belt challenges the introduction of evidence showing he had a prior criminal record. This evidence was admissible and was necessary to prove the charge that Belt possessed a firearm after having been convicted of a felony. See OCGA § 16-11-131; Chambers v. State, 201 Ga. App. 245, 246 (2) (410 SE2d 771), rev’d on other grounds, 262 Ga. 200 (415 SE2d 643).

(a) As Belt correctly notes, to prevent the improper introduction of a defendant’s criminal record, a trial court should bifurcate the trial of a possession of a firearm by a convicted felon charge from other unrelated charges contained in the same indictment. See Head v. State, 253 Ga. 429, 431 (2) (a) (322 SE2d 228). However, the trial court has no obligation to do so where the defendant does not request bifurcation. Baker v. State, 214 Ga. App. 640 (1)' (448 SE2d 745). Because Belt made no motion to bifurcate, this claim of error is waived.

Although Belt’s counsel asserts in his brief on appeal that his own failure to seek bifurcation constituted ineffective assistance of counsel, we do not address this claim because it was not enumerated as error. See Strickland v. State, 221 Ga. App. 120, 121 (1) (470 SE2d 508). Furthermore, Belt’s trial counsel cannot assert his own ineffectiveness. See Tweedell v. State, 218 Ga. App. 518, 520 (462 SE2d 181).

(b) When the prosecutor gave his opening statement, he read to the jury that portion of the indictment which charged Belt with possessing a firearm after having been convicted of burglary and theft by taking. Although Belt’s counsel objected to the prosecutor’s mention of these prior convictions, counsel later stipulated to evidence showing his client had a felony record. Therefore, we find no harmful error requiring reversal. Williams v. State, 263 Ga. 135, 136 (2) (429 SE2d 512); see also Cook v. State, 221 Ga. App. 831, 834 (4) (472 SE2d 686).

3. Belt’s contention that the trial court improperly limited his cross-examination of a police officer is without merit. The trial court may restrict the scope of cross-examination if an inquiry is not relevant or material to issues being tried. Cook, supra at 843 (4). Here, the trial court ruled irrelevant counsel’s questions regarding the reasons the officer originally charged Belt. These questions inquired into the motives and reasons for certain statements the officer made at a preliminary hearing. Especially considering the abundance of evidence of appellant’s actual guilt, we cannot say the trial court abused its discretion by finding this inquiry irrelevant. See Murray v. State, 219 Ga. App. 405, 407 (465 SE2d 515).

4. We find no error in the trial court’s refusal to allow Greer’s attorney to testify that her client pled guilty, that he had struck a deal with the State, and that at the plea hearing the prosecutor had characterized Greer as “more culpable” than Belt. First, the trial court did agree to allow the attorney to testify that Greer pled guilty. Belt’s counsel decided not to present this testimony, and he cannot now complain. See Cook, supra. Furthermore, whether Greer was “more culpable” had no bearing on Belt’s guilt, and because Greer did not testify at trial, his alleged “deal” with the State was irrelevant because his credibility was not at issue. See Holder v. State, 194 Ga. App. 790, 795 (6) (391 SE2d 808). Compare Watkins v. State, 264 Ga. 657, 659 (1) (449 SE2d 834).

5. The trial court did not err in refusing to give Belt’s requested charge on “bare suspicion,” as it fully charged the jury on the concepts of reasonable doubt, the presumption of innocence, and mere presence. Lowe v. State, 267 Ga. 180, 181 (2) (476 SE2d 583).

6. Finally, Belt contends the trial court improperly prevented him from commenting on the State’s failure to call Greer as a witness. As he correctly notes, the Supreme Court recently held that such argument may be proper. Morgan v. State, 267 Ga. 203, 205-206 (3) (476 SE2d 747), disapproving in part Wilson v. Zant, 249 Ga. 373 (290 SE2d 442). However, the record does not support Belt’s contention that the court prohibited such an argument.

Decided March 31,1997.

David J. Grindle, for appellant.

J. Gray Conger, District Attorney, Mark C. Post, Mark A. Casto, Assistant District Attorneys, for appellee.

The trial court made clear that if Belt’s counsel wanted to comment on the failure of the State to call Greer as a witness, it would allow the State, likewise, to argue Belt’s failure to call Greer as a witness. Belt’s counsel replied that he would “rather the court rule that way.” Belt’s counsel argued in his closing that “if [Greer] were to testify as Mr. Post [the prosecutor] pointed out, if I thought he could have come in and helped anybody I would have brought him. ... I don’t think he would have said anything to help my client because he . . . told him he was going to kill him. But I’m sure that he wouldn’t come in and help the man to send him to prison. . . . Why isn’t he here to testify against [the victim] the drug dealer, why isn’t he here to testify that Randall Belt. ... If there was anything that he could have done to help in this case he would have been here and particularly he would have helped him show a conspiracy.” The State’s objection to this line of argument was overruled. Under these circumstances, Belt cannot show that a ruling of the court prevented him from making the argument he sought to make. This enumeration is,, therefore, without merit.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


author: McMurray, Presiding Judge.

text:
    A97A0809.
    GRISSON v. THE STATE.
    (484 SE2d 802)
   McMurray, Presiding Judge.

Defendant Ricky Darnell Grisson was charged in an indictment with violating the Georgia Driver’s Licensing Act, in that on October 6, 1995, he unlawfully operated a motor vehicle “after receiving notice on August 19, 1992 that... he had been declared a[n] habitual violator of the laws relating to motor vehicles and traffic” (Count 1), and further charged with giving false information, by giving a “false name and date of birth to James Marzahl, a law enforcement officer engaged in the lawful discharge of his official duties, with the intent to mislead the officer as to his identity” (Count 2).

The evidence at defendant’s jury trial, viewed to uphold the jury’s verdict, reveals that Deputy James Marzahl of the Oconee County Sheriff’s Office participated in “a license/insurance card checkpoint on Dowdy Road at Old Epps Bridge Road[, in Oconee County].” Deputy Marzahl “asked the driver of [a gray Buick] for his driver’s license and proof of insurance. The driver stated that he did not have his driver’s license. [Deputy Marzahl] asked him for his name. He stated his name was Charles Grisson. [Deputy Marzahl] also asked him for his date of birth. He gave [Deputy Marzahl] a date of birth of 8/14 of ‘54. [Deputy Marzahl] ran his name and date of birth through the computer to check and see if he was a licensed driver, at which time it came back that it was not licensed. [Deputy Marzahl] then placed him under arrest, at which time the subject stated that his correct name was Ricky Darnell Grisson. . . .” Deputy Marzahl identified defendant as Ricky Darnell Grisson. Other evidence showed that defendant’s true date of birth is “October the 30th, 1958.” Defendant affirmed that the name he first gave Deputy Marzahl, “it’s [his] brother’s name, Charles Grisson.” On August 19, 1992, defendant signed an “OFFICIAL NOTICE OF REVOCATION AND SERVICE BY COURT,” in which he affirmed he had “PERSONALLY RECEIVED SERVICE OF HABITUAL VIOLATOR REVOCATION ORDER[.]” In this notice, defendant was informed “it shall be unlawful for [him] to operate a motor vehicle in the State of Georgia[, because his] license and privilege to operate a motor vehicle in this State [had been] revoked for a minimum of five (5) years from 08-19-92.”

The jury acquitted defendant of Count 1, violation of the Georgia Driver’s Licensing Act (driving after notification that he was an habitual violator), but found him guilty of Count 2, giving false information. This direct appeal followed. Held:

“A person who gives a false name, address, or date of birth to a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity is guilty of a misdemeanor.” OCGA § 16-10-25. In his sole enumeration of error, defendant challenges the sufficiency of the evidence, arguing that he did produce his driver’s license for Deputy Marzahl, and that he told Deputy Marzahl his name was Ricky Darnell Grisson but that Deputy Marzahl did not believe defendant and thought defendant was Charles Grisson.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Howard v. State, 261 Ga. 251, 252 (403 SE2d 204); King v. State, 213 Ga. App. 268, 269 (444 SE2d 381). ‘Conflicts in the testimony of the witnesses, including the (S)tate’s witnesses, is a matter of credibility for the jury to resolve. (Cits.) As long as there is some (competent) evidence, even though contradicted, to support each fact necessary to make out the (S)tate’s case, the jury’s verdict will be upheld. (Cit.)’ Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311).” Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130). “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8.

Decided March 31,1997.

Debra G. McDonald, John W. Donnelly, for appellant.

Harry N. Gordon, District Attorney, Kirk M. Thomas, Assistant District Attorney, for appellee.

In the case sub judice, the testimony of Deputy Marzahl is sufficient to establish the fact that defendant did not produce a valid driver’s license but instead gave a false name and date of birth. The criminal intent to mislead Deputy Marzahl as to defendant’s identity may be inferred from the documentary evidence indicating that defendant personally received notice that his driver’s license and driving privileges had been revoked in Georgia for a minimum of five years as of August 19, 1992. “The jury [in the case sub judice] obviously chose not to believe [defendant]. The testimony of [Deputy Marzahl], a single witness, was sufficient [under the standard of Jackson v. Virginia, 443 U. S. 307, supra,] to establish the [OCGA § 16-10-25] false name count [as alleged in Count 2 of the indictment], OCGA § 24-4-8. See Searcy v. State, 236 Ga. 789, 790[, supra].” Walker v. State, 225 Ga. App. 19 (482 SE2d 515).

Judgment affirmed.

Beasley and Smith, JJ, concur.


text:
    A96A1685.
    McLANE v. ATLANTA MARKET CENTER MANAGEMENT COMPANY et al.
    (486 SE2d 30)
   McMurray, Presiding Judge.

Laura J. McLane — a licensed real estate agent — brought an action against her former employer, ,The Atlanta Market Center Management Company (“the broker”), the owners of an Atlanta office building known as the Inforum Mart (“the Inforum”), Inforum Associates, Inforum, LTD and Equitable Life Assurance Society of the United States (“the property owners”), and the property owners’ asset manager, Equitable Real Estate Investment Management, Inc. (“Equitable”), alleging the broker, the property owners and Equitable duped her out of a $246,618 lease commission after her primary client, Atlanta Committee for the Olympic Games, Inc. (“ACOG”), “announced intentions to acquire 165,000 additional square feet of expansion space at the Inforum.” Specifically, McLane alleges that the broker hired her on a salary plus commission basis to lease space at the Inforum and that the broker breached this agreement by discharging her without severance pay and failing to pay her commission for ACOG’s subsequent lease expansion. McLane also alleges that Equitable tortiously interfered with her employment contract by refusing to allow her (or the broker) to negotiate with ACOG in violation of the broker’s exclusive right to lease the Inforum; that the broker assured her (after terminating McLane’s employment) that it would protect her commission rights; that contrary to this promise (and the broker’s fiduciary responsibility as a real estate professional and employer) the broker entered into a deal with Equitable resolving its commission claim without protecting McLane’s commission rights and that the broker, the property owners and Equitable unfairly converted her share of this settlement agreement. McLane’s damage claims are based on breach of contract, quantum meruit, unjust enrichment and tort. She also seeks punitive damages, attorney fees and expenses of litigation.

After filing separate answers, the broker, the property owners and Equitable filed a joint motion for summary judgment. McLane filed a motion for partial summary judgment. The matters of record underlying these opposing motions, when viewed from the perspective prescribed in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474), reveal the following:

On October 20, 1987, the property owners granted the broker exclusive rights to manage and lease the Inforum and agreed to pay the broker a percentage of all lease revenues. Three years later, the broker stipulated that this exclusive agency agreement will expire on October 11, 1992, and that its right “to receive any compensation or other remuneration . . . shall expire upon the date of [the exclusive agency agreement’s] termination or expiration.”

In January 1989, the broker hired McLane “[t]o help develop [a] marketing program that attracted technology companies into the [Inforum].” Over two years later, the broker offered McLane a position as a leasing agent or “leasing director.” McLane agreed to change jobs based upon an understanding that her “sole responsibility [would be] to lease the building and to bring in tenants. . . .” She also relied on the broker’s promise to pay her a salary plus $1.50 for every square foot she leased, including additional square footage leased by any Inforum tenant which the broker assigned to McLane. The only conditions to McLane’s commission rights were execution of a lease or lease amendment and the tenant’s occupancy of the leased space.

In early 1991, Jim Kranzusch, the broker’s General Manager and Executive Vice President, employed the broker’s entire leasing staff to attract ACOG to the Inforum, including McLane. McLane occasionally “met as a group [with this leasing team] to strategize on how to bring and attract ACOG into the facility [and she] assisted in the actual presentation to ACOG.” When ACOG subsequently executed a lease for 29,081 square feet on the Inforum’s sixth floor (with expansion options on the same floor), the broker paid McLane $3,000 for her contributions to the leasing team and later assigned her the ACOG lease. McLane thereafter devoted most of her time — approximately 75 percent — to ACOG.

In assisting ACOG develop its sixth floor expansion option, McLane “helped [ACOG representatives] from everything to meeting with their architects and identifying needs to helping [ACOG’s Administrative Services Manager, Gladys L. Andrews,] do . . . the conceptual drawing [which helped] determine how much space [ACOG] needed.” McLane’s efforts resulted in five successive lease amendments which provided ACOG with additional space and yielded McLane about $32,000 in commissions. McLane’s efforts were stifled, however, when ACOG asked for more office space.

McLane received a letter from Gladys L. Andrews — dated July 22, 1992 — indicating ACOG’s desire to execute a final sixth floor lease amendment on September 18,1992. Andrews informed McLane that ACOG anticipated occupancy of this space on November 25, 1992; that ACOG’s long-term space needs exceeded the lease’s sixth floor expansion options and that ACOG projected a need for an additional 90,000 square feet of office space. Andrews then asked McLane to “provide [her] with rate options to expand on the fifth floor, the Apparel Mart, and/or surrounding Marts.”

McLane informed the broker’s new General Manager and Executive Vice President, Brian D. Hogg, and Equitable’s Director of Asset Management, William Randolph Forth, about ACOG’s expansion requests and asked for their advice. Forth responded by bypassing the broker and McLane and opening direct negotiations with ACOG via a letter dated August 12,1992. Forth then notified the broker (on August 25, 1992) that its exclusive right to manage and lease the Inforum will terminate when it expires on October 31, 1992, and, on September 30, 1992, Equitable instructed the broker and McLane not to contact ACOG regarding further lease expansion. Equitable’s “Investment Officer” and “Senior Vice President,” Grant Grimes, ultimately notified the broker, in a letter dated October 19, 1992, that a commission would not be paid for ACOG’s sixth lease amendment if the deal was not closed before October 31, 1992.

On October 31, 1992, the broker terminated McLane’s employment and offered her a severance package which required her to give up any commission claim for ACOG’s most recent lease expansion request. McLane refused this offer and pressed the broker to honor its promise to pay her a commission for the pending ACOG expansion deal. The broker’s Vice President of Human Resources, Lawrence B. Gardner, responded by posting the following letter, dated December 10, 1992, to McLane: “As I see it, this is a rather simple issue. We, as much as you, are interested in receiving commissions for any ACOG expansions. As stated in [an earlier] letter to you[,] we will endeavor to add ACOG to the list of “INFORUM Associates Acknowledged List of Lease Prospects by AMCMC at INFORUM.” If we receive any commissions from Equitable from [this list], now or in the future, we will pay you your proportionate share of those commissions. . . . It is certainly our intention to continue to pursue this issue with Equitable and resolve it.”

In a letter dated December 22, 1992, Brian D. Hogg pressed Equitable “Senior Vice President” and “Investment Officer” Grant Grimes to pay the broker’s commission for ACOG’s sixth lease expansion. Grimes responded negatively in a letter dated December 30, 1992, reminding Hogg that “[t]he original management agreement . . . between [the property owners] and [the broker] eliminated any obligation on the part of [the property owners] to pay [the broker] a termination fee if and when the management agreement was terminated.” Two days later, January 1,1993, the property owners and the broker settled this dispute by entering into a deal which does not contemplate McLane’s commission rights. Specifically, the property owners allowed the broker exclusive rights to manage and lease certain “Convention Facilities” in exchange for the broker’s stipulation that it “has been paid in full by [the property owners] all amounts required to be paid . . . under the Prior Agreement. . . .” The broker also agreed to “hold [the property owners] harmless from any claim asserted against [the property owner] by any present or former employees or agent of [the broker] arising out of or resulting from the Prior Agreement. . . .”

On February 18, 1993, ACOG executed its sixth lease amendment for additional space at the Inforum. This amendment provided ACOG with 51,412 additional square feet on the Inforum’s sixth floor and 113,000 square feet on the Inforum’s fifth floor. On the day ACOG executed this lease amendment, the broker’s Executive Vice President and General Manager, Brian D. Hogg, transmitted the following memorandum to another employee of the broker: “Rob, I suggest we hold Laura [McLane’s commission] check [on a lease transaction unrelated to the ACOG lease transaction] until we negotiate a settlement with her on the ACOG transaction.”

The trial court granted the joint motion for summary judgment filed by the broker, the property owners and Equitable and denied McLane’s motion for partial summary judgment. This appeal followed. Held:

1. McLane contends the trial court erred in granting the broker’s motion for summary judgment and denying her motion for summary judgment with regard to the commission she allegedly earned for ACOG’s sixth lease expansion.

“The first requirement of the law relative to contracts is that there must be a meeting of the minds of the parties, and mutuality (Simpson & Harper v. Sanders & Jenkins, 130 Ga. 265 (60 SE 541); Gray v. Lynn, 139 Ga. 294 (77 SE 156)), and in order for the contract to be valid the agreement must ordinarily be expressed plainly and explicitly enough to show what the parties agreed upon. Georgia Southern & F. R. Co. v. Taylor, 142 Ga. 550 (82 SE 1058); Crawford v. Williford, 145 Ga. 550 (89 SE 488); Williams v. Manchester Bldg. Supply Co., 213 Ga. 99 (97 SE2d 129).” West v. Downer, 218 Ga. 235, 241 (5) (127 SE2d 359). In the case sub judice, the terms of McLane’s oral employment contract are undisputed. The broker’s former General Manager and Executive Vice President, Jim Kranzusch, deposed that he hired McLane in February 1991, and that he promised her a fixed salary plus $1.50 for every square foot she leased, including additional space leased by any Inforum tenant the broker assigned to McLane. Kranzusch also deposed that the only conditions to McLane’s commission rights were execution of a lease or lease amendment and the tenant’s occupancy of the leased space. Although it appears undisputed that these conditions were satisfied with regard to ACOG’s sixth lease expansion request, the broker argues that McLane is not entitled to a commission because her oral-at-will employment contract terminated before ACOG executed its sixth lease expansion amendment and before ACOG occupied the leased space. This argument is without merit.

While it is true that “an employee cannot sue to enforce future performance of a terminable-at-will employment agreement[,] an employee may sue on an oral contract for employment terminable at will Tor the amount of compensation due [her], based upon services actually performed by [her] up to the time of [her] discharge, and not for damages or for compensation for services not performed or for any breach of contract.’ Brazzeal v. Commercial Cas. Ins. Co., 51 Ga. App. 471 (180 SE 853) (1935). [Moreover, where] an employee has been discharged under a terminable-at-will employment contract, [she] may bring an action to recover the commissions due [her] in accordance with the employment agreement. Brazzeal, supra.” E. D. Lacey Mills v. Keith, 183 Ga. App. 357, 359 (2) (359 SE2d 148). It is undisputed in the case sub judice, that McLane’s employment contract called for the broker to pay her $1.50 for every square foot ACOG leased and that the only conditions to this right were ACOG’s execution of a lease amendment and occupancy of the leased space. Because it is undisputed that these conditions have been satisfied, because there is no proof that McLane’s commission rights would expire upon termination of her employment, or termination of the broker’s exclusive right to lease the Inforum, and since there is no proof that McLane’s commission rights were conditioned upon the broker’s recovery of a commission, McLane is entitled — as a matter of law — to a commission for ACOG’s sixth lease amendment. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4), supra. The trial court therefore erred in granting the broker’s motion for summary judgment with regard to McLane’s commission claim. The remaining question is whether McLane is entitled to summary judgment for the sum she claims is due, i.e., $246,618.

“Generally, ‘(w)here by a breach of contract a party is injured, [she] is bound to lessen the damages as far as is practicable by the use of ordinary care and diligence.’ OCGA § 13-6-5; Central Nat. Ins. Co. cfee. v. Dixon, 188 Ga. App. 680, 682 (373 SE2d 849) (1988). However, ‘(t)he rule requiring the plaintiff to protect [herself] from loss arising from breach of a contract is not applicable where there is an absolute promise to pay. . . .’ Reid v. Whisenant, 161 Ga. 503, 510 (131 SE 904) (1926); see J. C. Penney Cas. Ins. Co. v. Woodard, 190 Ga. App. 727, 729 (380 SE2d 282) (1989); Haley v. Oak Apartments, Ltd., 173 Ga. App. 44, 46 (325 SE2d 602) (1984). [The case sub judice] is not a case where an employee seeks to recover as damages the remainder of [her] salary after being terminated prior to the expiration of the contractual term of employment. In those cases, mitigation of damages may be applicable. Autotax, Inc. v. Data Input Corp., 136 Ga. App. 141, 142 (220 SE2d 456) (1975); Western Host Atlanta v. Bass, 183 Ga. App. 160 (358 SE2d 312) (1987). Rather, after [termination of her oral-at-will] employment contract, [McLane] sought to collect [a commission] required to be paid to [her] after such termination under the express terms of [her employment] contract. Royal Crown Cos. v. McMahon, 183 Ga. App. 543, 546 (359 SE2d 379) (1987) (plaintiff’s right to severance pay was absolute under contract); Atlanta &c. Clinics, P. A. v. Patton, 176 Ga. App. 2, 3 (335 SE2d 141) (1985).” Victory Sign Indus., Ltd. v. Potter, 208 Ga. App. 570, 571 (430 SE2d 882). McLane has shown, in the case sub judice, that these terms were fixed and absolute, allowing her $1.50 for every square foot ACOG leased. McLane was therefore under no obligation to mitigate damages. Accordingly, since it is undisputed that ACOG executed a lease amendment for 164,412 additional square feet, and that ACOG occupied this area, McLane is entitled to a $246,618 commission for ACOG’s sixth lease amendment. The trial court therefore erred in denying summary judgment as to this aspect of McLane’s breach of contract claim and is hereby directed, upon remand, to enter summary judgment for McLane and against the broker for the sum of $246,618, plus interest.

2. McLane next contends the trial court erred in granting the broker’s motion for summary judgment with regard to her severance pay claim. We do not agree.

“While a contract will not be held unenforceable for indefiniteness because its performance is, as to particular details, left open to subsequent agreement of the parties, see Advance Security v. Superior Surgical &c. Co., 197 Ga. App. 769, 771 (1) (399 SE2d 488) (1990), extrinsic information ‘may not be utilized to supply that which is essential to constitute a valid contract. (Cit.)’ \West v. Downer, 218 Ga. 235, 241 (5), 242, supra].” White & Assoc, v. Decker & Hallman, P. C, 203 Ga. App. 14 (1), 15 (416 SE2d 352). In the case sub judice, McLane offers no proof that the broker promised to pay her any determinable sum as severance, pay. McLane gave deposition testimony that her severance pay claim is based upon what the broker offered other employees and upon what she “thought . . . was a fair amount.” Because price is an essential element of a valid contract, the trial court did not err in granting summary judgment in favor of the broker as to this aspect of McLane’s breach of contract claim. See BellSouth Advertising &c. Corp. v. McCollum, 209 Ga. App. 441, 444 (2) (433 SE2d 437).

3. The trial court did not err in granting summary judgment in favor of the broker, the property owners and Equitable on McLane’s conversion claims because such an action for conversion “lies only for the withholding of ‘certain bills or coins’ and does not lie on account of a mere failure to pay money due under a contract. Faircloth v. A. L. Williams & Assoc., 206 Ga. App. 764 (1) (426 SE2d 601) (1992); Hodgskin v. Markatron, 185 Ga. App. 750, 751 (1) (365 SE2d 494) (1988); Cooke v. Bryant, 103 Ga. 727 (30 SE 435) (1898).” Morris v. Nat. Western Life Ins. Co., 208 Ga. App. 443, 444 (2) (430 SE2d 813).

4. McLane contends the trial court erred in granting summary judgment on her breach of fiduciary duty claims, arguing that a jury should decide whether the broker breached its fiduciary responsibility — as McLane’s employer and real estate broker — by failing to fully compensate her and protect her interests while negotiating its own commission dispute with Equitable. McLane advances the law of civil conspiracy to impute liability to Equitable for this alleged breach of fiduciary duty.

(a) The Broker’s Fiduciary Duties. We find that the broker, as a real estate professional and employer, had a fiduciary obligation to compensate McLane and to protect her during the parties’ agency relationship. “The relationship of principal and agent is fiduciary in character, and imposes upon the parties the duties of exercising toward each other the utmost good faith. Civil Code, § 4030 [now OCGA § 23-2-58].” Williams v. Moore-Gaunt Co., 3 Ga. App. 756, 759 (60 SE 372). Just as the law implies, as a part of the contract by which every agency arises, that the agent agrees to have and exercise, for and toward the principal, loyalty and absolute good faith, Reisman v. Massey, 84 Ga. App. 796, 799 (1) (67 SE2d 585), the law implies that the principal agrees to compensate, indemnify and protect its agent. 1A Encyclopedia of Georgia Law, Agency, §§ 62-73. See Restatement of the Law, Agency 2d, Introductory Note to Ch. 14, §§ 432-528. “A fiduciary who commits a breach of his duty as a fiduciary is guilty of tortious conduct to the person for whom he should act [and] the beneficiary is entitled to tort damages for harm caused by the breach of a duty arising from the relation. . . .” Restatement of the Law, Torts 2d, § 874, comment b. These fiduciary principles, applied in the context of the case sub judice, thus mark the broker’s duty not to usurp a business opportunity — assigned to and allegedly cultivated by McLane — arising by virtue of the parties’ fiduciary relationship.

The broker’s Vice President of Human Resources, Lawrence B. Gardner, assured McLane, in a letter dated December 10, 1992, that the broker would “continue to pursue [its claim for a commission for ACOG’s sixth lease expansion] with Equitable and resolve it.” Gardner also assured McLane that, “[i]f we receive any commissions from Equitable . . ., now or in the future, we will pay you your proportionate share of those commissions.” Less than three weeks later, however, the broker settled its commission dispute with the property owners without regard for McLane’s commission rights. And on the day ACOG executed its sixth lease amendment, the broker’s Executive Vice President and General Manager, Brian D. Hogg, suggested holding “Laura [McLane’s commission] check [on a lease transaction unrelated to the ACOG lease transaction] until we negotiate a settlement with her on the ACOG; transaction.” This proof, and the undisputed fact that the broker has not paid McLane’s commission for ACOG’s sixth lease amendment, is sufficient to authorize a jury’s finding that the broker breached its fiduciary duties to fully compensate McLane and protect her commission rights during negotiations with Equitable.

(b) Imputing Liability to Equitable via Civil Conspiracy. “ A conspiracy is a combination to accomplish an unlawful end, or to accomplish a lawful end by unlawful means.’ Luke v. Dupree, 158 Ga. 596 (124 SE 13).” Foster v. Sikes, 202 Ga. 122, 125 (42 SE2d 441). In the case sub judice, McLane’s conspiracy theory is based upon Equitable’s alleged actions in influencing the broker not to pay McLane’s commission and not to honor its promise to pay McLane’s commission “[if the broker received] any commissions from Equitable. . . .” Although we find no direct proof of such an endeavor, we find circumstances which raise genuine issues of material fact as to Equitable’s liability for conspiring with the broker to deprive McLane of her commission for ACOG’s sixth lease amendment.

Because civil conspiracy is by its very nature a secret endeavor, and thus rarely open to direct proof, concert of action, amounting to conspiracy, is best suited for jury resolution and may be proved by either direct or circumstantial evidence. In other words, it is unnecessary to prove an express compact among the alleged conspirators. A jury may infer a civil conspiracy from the nature of the alleged wrongdoers’ acts, the relation between them, their mutual interests in the matter, and other circumstances. First Fed. Savings Bank v. Hart, 185 Ga. App. 304, 305 (2) (363 SE2d 832). It is undisputed in the case sub judice that the broker, in a letter dated December 22, 1992, pressed Equitable to pay a commission for ACOG’s sixth lease expansion, but soon abandoned this claim (on January 1, 1993) when Equitable arranged for the property owners to give the broker exclusive rights to manage and lease certain “Convention Facilities” in exchange for the broker’s stipulation that it “has been paid in full by [the property owners] all amounts required to be paid . . . under the [property owners’] Prior Agreement [for the broker to manage and lease the Inforum].” It is also undisputed that McLane did not know about the negotiations between the broker and Equitable, or the resulting deal which included the broker’s promise to “hold [the property owners] harmless from any claim asserted against [the property owner] by any present or former employees or agent of [the broker] arising out of or resulting from the Prior Agreement. . . .” We find that this proof, along with proof that Brian D. Hogg — on the same day ACOG executed its sixth lease amendment — proposed “hold[ing] Laura [McLane’s commission] check [on an unrelated lease transaction] until we negotiate a settlement with her on the ACOG transaction,” raises genuine issues of material fact as to Equitable’s liability for conspiring, if so found, with the broker to deprive McLane of a commission for ACOG’s sixth lease amendment.

5. McLane contends the trial court erred in granting summary judgment to Equitable with regard to her claim that Equitable interfered with her employment contract and frustrated her ability to earn a commission for ACOG’s sixth lease amendment.

“Tortious interference with contract requires proof of: (1) an independent wrongful act of interference by a stranger to the contract; (2) malicious intent to cause injury; and (3) resulting damage. See Hylton v. American Assn. &c., 214 Ga. App. 635, 638 (2) (448 SE2d 741) (1994); Singleton v. Itson, 192 Ga. App. 78, 79 (383 SE2d 598) (1989).” Barnwell v. Barnett & Co., 222 Ga. App. 694, 695 (1) (476 SE2d 1). “Malice, as herein used, is a term to be given a liberal meaning; malicious or maliciously means any unauthorized interference, or any interference without legal justification or excuse. Arford v. Blalock, 199 Ga. App. 434, 441 (13) (405 SE2d 698); Forehand v. Perlis Realty Co., 198 Ga. App. 165,166 (400 SE2d 644).” Renden, Inc. v. Liberty Real Estate &c., 213 Ga. App. 333, 334 (2) (444 SE2d 814). Proof in the case sub judice that Equitable took over ACOG lease negotiations after learning about ACOG’s request for over 90,000 additional square feet of office space; that Equitable thereafter prohibited McLane from contacting ACOG regarding further lease expansion (at any office facility) and that Equitable delayed executing ACOG’s sixth lease amendment (beyond ACOG’s projected execution date of September 18, 1992) until after termination of McLane’s employment is sufficient to authorize a jury’s finding that Equitable maliciously interfered with McLane’s efforts to procure a sixth lease amendment pursuant to the terms of her employment contract. See Christopher Investment Properties v. Cox, 219 Ga. App. 440, 442 (1), 443 (465 SE2d 680). Additionally, the evidence cited in Division 4 (d) of this opinion, indicating that Equitable influenced the broker into not honoring its promise to pay McLane’s commission for ACOG’s sixth lease amendment, is sufficient to authorize a jury’s finding that Equitable maliciously interfered with McLane’s right to compensation -under her employment contract. Further, we reject Equitable’s assertion that it was not a stranger to McLane’s employment contract because of its right to negotiate directly with ACOG.

Although Equitable may have had a right to negotiate directly with ACOG, Stone v. Reinhard, 124 Ga. App. 355, 356 (1) (183 SE2d 601), this right did not provide Equitable with power to interfere with McLane’s right to perform or collect commissions under the terms of her employment contract. It is undisputed that Equitable was not a party to McLane’s employment contract and we find no conclusive proof in the record, or law, bestowing Equitable with power to isolate McLane (or the broker) from any Inforum lease negotiations before expiration of the broker’s exclusive right to lease the Inforum. Consequently, since the record contains evidence which would authorize a jury’s finding that Equitable interfered with McLane’s employment contract and frustrated her ability to earn a commission for ACOG’s sixth lease amendment, the trial court erred in granting Equitable’s motion for summary judgment with regard to McLane’s claim that Equitable interfered with her employment contract and frustrated her ability to earn a commission for ACOG’s sixth lease amendment. See Christopher Investment Properties v. Cox, 219 Ga. App. 440, 442 (1), 443, supra.

6. The trial court erred in granting the broker’s and Equitable’s motion for summary judgment with regard to McLane’s OCGA § 13-6-11 claim for attorney fees and expenses of litigation. The trial court also erred in granting the broker’s and Equitable’s motion for summary judgment with regard to McLane’s punitive damages claim. These questions are generally for the factfinder, not the trial court upon summary adjudication. Rossee Oil Co. v. BellSouth Telecommunications, 212 Ga. App. 235, 236 (441 SE2d 464); Christopher Investment Properties v. Cox, 219 Ga. App. 440, 443 (2), 444, supra.

Judgment affirmed in part and reversed in part.

Ruffin, J., concurs. Johnson, J., concurs in the judgment only.

Appendix.

“[APPELLEES’ ATTORNEY:] In all the time that you were employed by AMC, did you ever become aware of any bonus or commission payments made to leasing agents of AMC in which AMC, in turn, did not receive compensation from Equitable or from the Inforum Associates which was the owner of the building? [LAURA J. McLANE:] I’m not familiar with any. Q. Did Brian [Hogg] ever tell you that he thought your right to any bonus or commission on the ACOG lease was independent of AMC’s recovery of its bonus or commission from Equitable? A. Did he ever tell me if it was independent? Q. Yes. Did it depend on AMC being compensated? A. I don’t believe so. Q. So you are saying that he never told you either way, either it was or was not dependent on AMC being compensated by Equitable? A. No. His position was always that the monies were owed to me and he took the stance that the Market Center owed me the monies from our initial conversations. Q. Didn’t he tell you that he was going to do his best to get the money from Equitable and pay you if he got it? A. To the best of my recollection that theory came from the letters, and Brian and I discussed those. I don’t recall Brian presenting that concept. Q. The way you understood Brian, you thought that he was going to work within AMC to get you the money you said you were entitled to regardless of whether AMC was able to get that money from Equitable? A. As a leasing director I was not privy to any agreements between the Market Center and Equitable. So every conversation I had with Brian or the Market Center was that the commissions were owed me. I had no knowledge before seeing this agreement here what their arrangement awas [sic]. Q. By this agreement, you mean the [January 1, 1993,] management agreement [settling the broker’s commission dispute with the property owners]? A. Correct. Q. When Jim Kranzusch explained your compensation structure to you when you became a leasing director, he did not tell you that AMC would pay you a commission or bonus if AMC was not paid a commission or bonus for that same lease by Equitable, did he? A. Could you repeat that? Q. Yes. At the time Jim Kranzusch had his discussion with you about your compensation arrangement as a leasing director, he did not tell you that you would be paid a bonus or a commission on new leases regardless of whether AMC received compensation from Equitable for that new lease, did he? A. He did not mention any stipulations. The only discussion was my payment of commissions. He didn’t state it one way or the other. Q. Do you recall his stating that at some time you became a leasing agent or a leasing director? A. My conversations with Jim were prior to my accepting the task of leasing director. So upon discussing that with him, we shook hands on our agreement which was salary plus commission and then I joined the leasing team. Q. After you accepted being a leasing director, do you recall anyone at AMC saying whether or not a leasing director’s commission or bonus would be tied to a corresponding payment by the building owner to AMC? A. There was never any reference to that whatsoever. Q. One way or the other? A. No. I was never privy to any agreement between the Market Center and Equitable other than there was a management contract between the two parties. Q. But you were never told either that your bonus or commission was or was not tied to AMC’s right to get a bonus or commission from the owner? A. Either way it was not addressed. The subject just was never discussed.”

Decided March 5,1997

Reconsideration denied April 1,1997

James L. Ford, Sr, Terry D. Jackson, for appellant.

Schnader, Harrison, Segal & Lewis, C. Wilson DuBose, Mary A. Hall, Dionna K. Rutkowski, for appellees.

       The appellees cite page 618 of the record in support of the following assertion: “Because these leasing director bonus commissions were derivative of the payments [the broker] received from [the property owner], neither McLane nor any other leasing agent ever received a commission payment unless and until [the broker] received a corresponding payment from [the property owner].” This statement, however, is not supported by page 618 of the record. This area of the record is an excerpt from Laura J. McLane’s deposition indicating McLane’s perception that her right to a commission was neither derivative of nor dependent upon the broker’s commission rights. We include the cited portion of McLane’s deposition testimony, which pertinently begins on page 618 of the appellate record, as an Appendix to this opinion.

       In the factual summary on page 7 of appellees’ brief, appellees assert the following: “McLane had no role in initially bringing ACOG into the Inforum as a tenant, rather, AMC assigned McLane the ACOG account after the ACOG Lease was executed.” This statement, however, is not only misaligned with McLane’s deposition testimony (which we quote), it is refuted on the very page of the appellate record cited by appellees, i.e., page 624. Perhaps appellees’ statement of fact is attributable to a misunderstanding of the applicable summary judgment standard. “The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, [supra]. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843).” Orion Capital Partners, L. P. v. Westinghouse Elec. Corp., 223 Ga. App. 539, 541 (1) (478 SE2d 382).

       This aspect of McLane’s tortious interference claim appears to be the foundation of McLane’s conspiracy theory against Equitable. See U3S Corp. of America v. Parker, 202 Ga. App. 374, 379 (3) (414 SE2d 513).


author: Beasley, Judge.

text:
    A96A1861.
    SIMMONS v. WEBSTER COUNTY.
    (485 SE2d 501)
   Beasley, Judge.

Condemnee Simmons appeals the condemnation award of $675 in this eminent domain case. Despite the amount of the judgment, a direct appeal lies. Walker v. Ga. Power Co., 177 Ga. App. 493, 494 (339 SE2d 728) (1986).

Webster County filed a petition for condemnation of an easement and right-of-way in, to and over Simmons’ land for use as a public road and for the controlling and backing up of water, including the right to back water onto Simmons’ land to the full extent water was there prior to July 1994. The plat exhibited with the petition showed a proposed total easement strip of 140 feet in width, which would constitute an extension of the 60-foot easement and right-of-way the county already had. A lake had existed on the land adjacent to the existing easement and right-of-way from 1957 to July 1994, except for a short period in 1970.

The county elected to proceed by the quicker, “simpler and more effective method of condemnation” provided for in OCGA § 22-2-100 et seq. The county wanted the additional easement to 140 feet and the specified additional rights in order to qualify for FEMA and GEMA money to rebuild the road and the dam on which it sat, which had been washed out by a flood in July 1994. It intended to include public parking spaces on the extended easement, so people could fish in the lake when it was restored. The county also planned to install a new drainage control system within the 140-foot easement so it could keep the lake at the July 1994 level.

Simmons was the only named condemnee. He was served and a special master appointed. OCGA §§ 22-2-103 and 22-2-107. A hearing was held, OCGA §§ 22-2-108 and 22-2-109, and the special master filed an award in the form required by OCGA § 22-2-110. He awarded $700 for the property and interests sought to be condemned and found no consequential damages or benefits. The award was made the judgment of the court the same day it was filed with the court. OCGA § 22-2-111.

Condemnee Simmons appealed to the superior court from that award pursuant to OCGA § 22-2-112 and also filed exceptions to the special master’s findings, rulings, and award. These were timely because they were filed within ten days after the award was filed, even though they were filed after the court’s judgment. Sims v. City ofToccoa, 256 Ga. 368, 370 (349 SE2d 385) (1986). Cf. Earth Mgmt. v. Heard County, 248 Ga. 442, 445 (3) (283 SE2d 455) (1981). The judgment was premature but not void. Styers v. Atlanta Gas Light Co., 263 Ga. 856, 858 (1), n. 1 (439 SE2d 640) (1994). Thereafter Simmons filed an answer to the petition, setting out his defenses before the court.

A jury was selected to try the issue as to the value of the property and interest taken and the damage done. OCGA § 22-2-112. Immediately before trial the court considered argument on condemnee Simmons’ exceptions to the special master’s award and overruled them in toto after refusing to consider evidence as to any of them. The primary contentions Simmons raised at the hearing were that because the county was condemning control over the lake bed it was also taking that land or at least an easement over it and that such a taking was not for a necessary public purpose. The condemnor countered that any damage to Simmons’ property adjacent to the 140-foot easement could be considered by the jury in measuring consequential damages, if any.

The jury trial on the value of the taking was held, and the court disallowed any evidence of the value of the lake bed, having ruled that it was not condemned in this proceeding and that the only property at issue was the 140-foot easement for road, slope, and drainage. Based on the evidence and the jury charge of the court, which limited the issue to the fair market value of the additional 1.8 acres in the 140-foot easement and gave no instruction on consequential damages, the jury returned a verdict for $675. This is the amount the county’s appraiser had given to the new easement.

1. On appeal, the first enumeration is that the trial court erred in ruling on Simmons’ exceptions without hearing any evidence on the non-value issues and by refusing to issue a written order. As to the latter, Simmons cites no authority, and there is no such requirement in the statute governing the special master proceeding or elsewhere in the Code, compare OCGA § 9-11-52, or in case law construing the special master method of condemnation. It is certainly preferred, but not mandated so long as there is record of the ruling.

Regarding the reception of evidence, the law provides that as to the special master condemnation proceedings, “it shall be desirable to have a judicial ascertainment and judicial supervision of all questions and proceedings connected with the matter.” OCGA § 22-2-102.1. As discussed in Sims, supra, the law contemplates that the court will hear and determine non-value issues raised by way of timely exceptions. “A special master is authorized to make ‘critical determinations’ other than value, [cit.], and the only method of correcting any errors a special master may have made is by filing an appeal in the superior court where the action was begun. [Cit.]” Sims, supra at 369. “In order to obtain review of the non-value issues determined by the special master, a party must file exceptions with the superior court. . . .” Styers, supra at 857 (1).

The premature judgment was in fact abrogated by the trial court, because the court did consider Simmons’ exceptions to the special master’s resolution of non-value issues and a jury tried the value issue anew. OCGA § 22-2-111 provides that “[u]pon the entry of the award of the special master and the presentation of the award to the judge of the superior court, the judge shall enter a proper order and judgment. . . Although this implies the entry of an immediate judgment if construed literally, account must be taken of the ten-day allowance for appeal from the special master’s award, to a jury as to value and to the superior court for non-value issues. Generally, then, judgment should not be entered until the time for appeal has expired without entry of an appeal. If an appeal is taken, judgment must be held in abeyance until the appeal is resolved, as it vests the condemnor with the property or other interest condemned upon payment of the award into the court registry. OCGA §§ 22-2-111; 22-2-114; Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358, 365 (227 SE2d 362) (1976), criticized on another matter, Styers, supra at 859-860.

The Supreme Court in Styers noted that the judgment on the non-value issues was entered at one time and the judgment on the value issue was entered later. Styers, supra at 858 (1), n. 2. That is appropriate so that the court proceedings do “not hinder or delay in any way the condemnor’s work or the progress thereof.” OCGA § 22-2-112. This serves the purpose of the special master method of condemnation, which is stated in OCGA §§ 22-2-101 and 22-2-102. But it is error to enter a final judgment of condemnation without passing on timely filed exceptions to the special master’s award. City of Atlanta v. Turner Advertising Co., 234 Ga. 1, 3 (214 SE2d 501) (1975).

The court was not required to conduct an evidentiary hearing on the exceptions, because that would allow new evidence which was not before the special master or a repetition of evidence which should have been preserved by a transcript. Insofar as Simmons excepted to findings of the special master, the court was unable to consider the merits because there was no transcript of the special master hearing presented and no written findings other than as required by OCGA § 22-2-110. Compare Sims, supra. See also Wrege v. Cobb County, 186 Ga. App. 512, 514 (2) (367 SE2d 817) (1988), where the record showed that the condemnees raised all legal issues in the proceeding before the special master, who orally ruled on them; and Leach, supra at 18-21, where the court had a report of the special master stating rulings made on certain motions and objections.

As in Beck v. Cobb County, 180 Ga. App. 808, 810 (350 SE2d 818) (1986), the exceptions were not properly preserved for review as to the non-value issues. In Beck the condemnees did not file exceptions but simply appealed the case “ ‘in its entirety’ ” and in such manner sought to present the non-value issues to the superior court. Id. at 808. In Simmons’ case, he filed exceptions but did not preserve a record of rulings which the court could review. It is to be a de novo hearing before the superior court on the exceptions, but the non-value issues must have been raised and ruled on by the special master and preserved for the review of exceptions. Wrege, supra. The trial court cannot rule on what Styers describes as the “exceptions to the special master’s resolution of non-value items,” supra at 859 (2), unless the “items” or issues are raised before the special master, ruled on, and preserved by a record which the trial court can examine. The exceptions opportunity is “the means by which judicial review of those issues may be had.” Styers, supra at 860 (2).

The special master is not required to make written findings of fact or conclusions of law, such as an auditor must (see OCGA §. 9-7-8), other than as provided in OCGA § 22-2-110 (c). Sweat v. Ga. Power Co., 235 Ga. 281, 284 (2) (219 SE2d 384) (1975). In Sweat, the court had a report of the special master in addition to the award, plus a transcript of the special master’s hearing. Id. at 285.

“[T]he only method of correcting any errors ... a special master may have made in the original hearing and award is ... by an appeal in the superior court, which begins again the process of adjudication.” City of Savannah Beach v. Thompson, 135 Ga. App. 63, 65-66 (2) (217 SE2d 304) (1975). Value is to be decided by a jury in a de novo investigation, OCGA § 22-2-110 (d), and “issues of law erroneously decided by the special master . . . [are to be] readjudicated by the superior court judge.” Id.

Simmons not only filed exceptions and appeal to a jury, he also filed an answer to the petition, setting out the defenses put forth at the pre-trial hearing, among others. But this was too late. Nodvin v. Ga. Power Co., 125 Ga. App. 821, 822-823 (2) (189 SE2d 118) (1972).

Thus, Simmons was obligated to raise the issues again in the context of the appeal to the jury on the issue of value, but could do so only insofar as they affected the value of what was taken. It is “a de novo proceeding, and it is the duty of the trial judge, by pre-trial order or during the course of the trial, to rule on all legal issues.” Zuber Lumber Co., supra at 364. See also Banks v. Ga. Power Co., 220 Ga. App. 84, 87 (7) (469 SE2d 218) (1996). “What [OCGA §§ 22-2-112 and 22-2-114] make very clear is that the court, and not the jury on appeal, will decide the quantity of interest of each condemnee, and . . . will also decide the quality of such interest, for the reason that the appeal to the jury goes to the issue of value only and it is not intended by this act ... to leave any other subject matter for jury determination.” (Emphasis in original.) Johnson v. Fulton County, 103 Ga. App. 873, 884 (121 SE2d 54) (1961) (on motion for rehearing). “The question of what is to be taken, when in doubt, is a mixed question of law and fact, and . . . the trial court has the power and duty to make the findings of fact necessary to determine the question of law in order ‘to speed the cause,’ i.e., to get the issue of value before the jury as soon as possible.” (Emphasis in original.) DeKalb County v. Jackson-Atlantic Co., 123 Ga. App. 695, 698 (182 SE2d 160) (1971); Walker v. Ga. Power Co., supra at 497 (1).

2. Simmons enumerates in two errors the court’s refusal to allow him to introduce evidence, during the course of the jury trial on value, as to the value of his property adjacent to the 140-foot easement and as to consequential damages to this property.

“Taking private property for the benefit of the public is an exercise of high power, and all the conditions and limitations provided by law must be closely followed. Too much caution cannot be observed to prevent oppression and abuse. ... [It is] necessary to have ‘judicial ascertainment and supervision of all questions and proceedings connected with the matter.’ Ga. L. 1957, p. 389, § 3. (Emphasis supplied.) ‘Constitutional due process of law includes notice and hearing as a matter of right where one’s property interests are involved. [Cit.]’ [Cit.]” Sims, supra at 369-370.

The property condemned was an easement and right-of-way over 1.8 acres of Simmons’ property for use as a public road and for the right to control and back water so as to create a lake as had existed in July 1994 before the flood which destroyed the road and dam. Simmons contended at the hearing on his exceptions and throughout the trial that this taking constituted much more than an easement for a road and sloped dam to hold up the road. As shown by the county’s plat, he owned the land on both sides of the road. He testified that he owned 65 acres, including 37 acres on .the one side where a lake had been and the county intended to re-create it. .

The lake had originally been created by Simmons’ predecessor in title, Kennedy, who put in boards to retain the water when the county acquired a perpetual easement in July 1957 for constructing and maintaining an earthen elevation and a public road to run over it. Previously, there had been a dirt road and rickety wooden bridge. When the lake drained in 1970, because of a flood and consequent break in the elevated roadway, which served as a dam for the lake, Kennedy reestablished the lake within a few weeks. The drain mechanism is on that property. Kennedy, and Simmons after him (he bought the property in 1988), controlled the existence and level of the lake.

After the lake was destroyed in 1994, Simmons planted trees on the lake bed. He contended that the property interests condemned in effect also condemned the lake bed because the county acquired the right to control the water flow so as to create a lake. At the least, he asserted, this constituted the taking of an easement over the lake bed, for the county’s purposes of creating a public lake. In the alternative, he argued, the easement and rights described in the petition for condemnation created consequential damages to that lake bed owned by Simmons because it would be covered by water and thus preclude his use of it other than as a member of the public. He sought to introduce evidence of value of that land and for what it could be used. As he points out, the county introduced evidence on the subject of the value of the lake bed, but the court refused to permit Simmons to show otherwise and limited the scope of the issue of value to the 1.8 acres in the 140-foot easement.

The only easement not in dispute was the 60-foot easement acquired in 1956 or 1957. Although there was some testimony that this was widened another 20 feet by later acquisition when the road was paved between 1987 and 1989, no documentary evidence supported this and the county did not pursue a claim of right to that additional 20 feet. Its real estate appraiser gave estimated value for the difference between 60 feet and 140 feet, the width the county needed to meet FEMA and GEMA requirements.

The court ruled, in error, that the county had earlier acquired an easement in the lake bed and thus had “every right to cover [it] back up with water, just like it was.” There was no evidence of such. The county stated that the lake bed was not county property and that it was not seeking to condemn any interest in the lake bed. The county did not even claim in its petition that it had an interest in the lake bed, as evidenced by the description of what it sought to condemn and in the drawing which it submitted. Both sides of the 140-foot easement are shown as belonging to “J. Ed Simmons.” The only evidence was that the lake was created by the lake bed owner, reestablished by him when it diminished, and was permitted to remain until nature swept it away in 1994.

In making this finding in the course of the jury trial, the court at the least deprived the condemnee of any consequential damages to the lake bed occasioned by the right to flood it. Consequential damages are to be taken into consideration. OCGA § 22-2-109 (c). “ ‘The proper measure of consequential damages to the remainder is the diminution, if any, in the market value of the remainder in its circumstance just prior to the time of the taking compared with its market value in its new circumstancé just after the time of the taking.’ [Cit.]” Dept. ofTransp. v. Whitehead, 169 Ga. App. 226, 230 (3) (312 SE2d 344) (1983), aff’d, 253 Ga. 150 (317 SE2d 542) (1984). See also Colonial Pipeline Co. v. Williams, 206 Ga. App. 303, 304 (425 SE2d 380) (1992). In keeping with the court’s erroneous view that the county already had an easement in the lake bed, it did not charge the jury on consequential damages.

The total nature of the taking was in dispute, and the court’s finding that the county already had an easement over the lake bed for the purpose of creating a lake precluded consideration of condemnee’s evidence and argument that by taking control of whether a lake was created or not, and its level at any given time, condemnor was either acquiring the lake bed itself or was condemning an easement on it. This mixed issue of fact and law as to what property and interests were included for condemnation must first be determined by the trial court before a jury can be asked to value what is taken. The ownership of the lake bed was not to be determined by this jury, which according to the Code is only to find the value of condemnee’s taken property.

The judgment must be reversed for a new trial of the value of all of the property interests taken, i.e., the 1.8-acre easement for the road and dam slopes, and the right to control the accumulation of water on the lake bed to the extent of the water level that existed before the flood in July 1994. Before the jury can set the value, the trial court itself must determine what in legal terms is being taken. I DeKalb County v. Jackson-Atlantic Co., supra. Does the right of control, as expressed in the petition and to the extent shown by evidence of intended use, in effect constitute acquisition of the lake bed in fee simple, or of an easement over the lake bed, or of no interest in it at all but only a taking adjacent to the lake bed, subject to consequential damages, if any, in the lake bed? See Harrison v. Ga. Power Co., 255 Ga. 74 (335 SE2d 389) (1985); Brown v. Tomlinson, 246 Ga. 513, 514 (272 SE2d 258) (1980); Stephens County &c. v. Wright Bros. Constr. Co., 215 Ga. App. 352 (451 SE2d 802) (1994); Pindar, Ga. Real Estate Law & Procedure (3rd ed. 1986), p. 358, § 8-1.

Decided March 4,1997

Reconsideration denied April 1,1997

Reagan W. Dean, for appellant.

In cases where there is condemnation of lake or pond property, the interest that is taken depends on the needs of the condemning authority. For example, in Galloway v. Bd. of Commrs. of Banks County, 246 Ga. 472 (271 SE2d 784) (1980), property condemned for watershed, flood control and soil conservation purposes, but ultimately used for recreational purposes, was condemned in fee simple. In State Hwy. Dept. v. Davis, 129 Ga. App. 142 (199 SE2d 275) (1973), the highway department condemned a certain amount of land in fee simple, which included a four-acre body of water, and a drainage easement and a detour easement “to acquire a right of way in Bulloch County for Interstate Highway 16.” Id. In Stephens County &c., supra, the county soil and water conservation district had an easement “to over-flow[,] flood and store water impounded by flood-retarding structures” on the fee owner’s land. Id. at 353.

Insofar as the constellation of property rights in this case being a necessary taking, OCGA § 22-2-102.1 provides that “the condemning body shall be the exclusive judge” “of the necessities of the public needs.” It means what it says. Zuber Lumber Co., supra at 360 (4). The condemnor’s discretion “will not be interfered, with or controlled by the courts unless it is shown that the condemning authority acted in bad faith or beyond the powers conferred upon it by law. [Cit.]” Sweat, supra at 284 (3). Discretion will not be interfered with unless the record shows the condemnor “acted in bad faith or capriciously.” Leach, supra at 23 (7). This issue was waived by Simmons’ inadequate preservation of the proceeding before the special master.

3. Simmons’ motion for emergency stay and direction is denied as moot.

Judgment reversed and remanded.

Birdsong, P. J., and Blackburn, J., concur.

Bowles & Bowles, Jesse G. Bowles, Collier & Gamble, Wilbur T. Gamble III, for appellee.

       Although the court purported to condemn the property for the county in absolute and fee simple title, the judgment did not as a matter of law condemn more than the easement and right-of-way the condemnor sought. Leach v. Ga. Power Co., 228 Ga. 16, 22 (6) (183 SE2d 755) (1971).

       But see the dissent in Sweat and OCGA § 9-11-52 (a).

       Because of the procedural infirmity, i.e., lack of a special master record, we do not reach the issue of whether the superior court’s consideration of exceptions to the special master’s decision is de novo with respect to fact issues or de novo only as to legal issues. “Non-value” issues would encompass both, but the case law sometimes references legal issues as though that were the extent of the superior court’s domain in ruling on exceptions. The question surfaces in Wrege, supra. In both Walker v. Ga. Power Co., supra at 497 (1), and Budd Land Co., Ltd. v. City of Valdosta, 165 Ga. App. 534 (301 SE2d 699) (1983), the superior court ruled on motions for summary judgment, which included new evidence and stipulations of fact produced in superior court. Compare the role of the appellate division of the Workers’ Compensation Board, both before and after the 1994 amendment of OCGA § 34-9-103 (a). See Bankhead Enterprises v. Beavers, 267 Ga. 506 (480 SE2d 840) (1997).


author: Beasley, Judge. Blackburn, Judge,

text:
    A96A2167.
    OXLEY v. KILPATRICK et al.
    (486 SE2d 44)
   Beasley, Judge.

Mrs. Oxley, as parent and next friend of her son Ben, brought this medical malpractice action against Dr. Kilpatrick, Women’s Medical Center, Inc., and Dr. Rossi. The question on appeal is whether, based on undisputed facts of record, the statute of limitation prevents the case from proceeding, as a matter of law.

The complaint alleged that defendants’ negligent failure to “diagnose, appreciate and timely address” Ben’s fetal distress caused him to suffer oxygen deprivation and brain injuries resulting in his cerebral palsy, and that Mrs. Oxley was deterred from discovering their negligence through fraud and misrepresentations. Plaintiff also claims that but for negligence by Dr. Kilpatrick in failing to place Mrs. Oxley on restrictions earlier in her pregnancy, Ben would not have required premature delivery and so would not have suffered fetal distress. All defendants moved for summary judgment on grounds that the statute of limitation had expired and had not been tolled by any fraud or misrepresentations. Plaintiff appeals the trial court’s grant of defendants’ motions.

Summary judgment is authorized only when all the facts and reasonable inferences, viewed most favorably to the non-moving party, preclude a triable issue as to at least one essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Beginning in the early 1980’s Mrs. Oxley became a patient of Dr. Kilpatrick, who practiced obstetrics individually and through Women’s Medical Center. Mrs. Oxley’s 1985 pregnancy ended in a miscarriage and she became pregnant again in 1987. She testified that Dr. Kilpatrick informed her that her second pregnancy was high risk because she had an “incompetent cervix.” When she began to dilate early in her pregnancy, he performed a surgical procedure known as a “cerclage” or closure of the cervix. Dr. Kilpatrick did not put her on any restrictions such as staying off her feet or out of work.

On the evening of September 1, 1987, when Mrs. Oxley was approximately 27 weeks pregnant, she went to the hospital because of a spontaneous rupture of her membranes. Upon her arrival between 8:00 and 9:00 p.m., she was treated by Dr. Rossi, whom she had never seen before. Although Dr. Rossi is not employed by Dr. Kilpatrick or Women’s Medical Center, he was on call for Dr. Kilpatrick. Mrs. Oxley testified that Dr. Rossi told her he was the third associate in practice with Dr. Kilpatrick and Dr. Moore. Mrs. Oxley began to feel her child was in trouble at approximately 5:00 a.m. At that time, she began having contractions which were followed by the baby’s heart rate going down, and she could tell by the tone of the nurses’ voices that something was wrong. Dr. Rossi came at 6:00 a.m., checked the fetal heart monitor, and cut the cerclage because he was concerned it might be hurting the baby. At this time, Dr. Rossi did not express concern about the baby. After the cerclage was cut, everything was fine for about 45 minutes. According to Mrs. Oxley, Dr. Rossi told her the baby was fine and never informed her that the child was in trouble. He also told her the baby needed to develop its lungs before it could be delivered.

At approximately 7:00 a.m. on September 2, Mrs. Oxley was seen by Dr. Kilpatrick. He testified that the fetus was in distress beginning at 7:19 a.m. About one hour later, he delivered Ben by Caesarian section. While in the hospital, Mrs. Oxley was informed by the neonatologist that Ben’s prematurity might cause him to have developmental problems. When Ben was approximately ten months old, Dr. Kilpatrick told her the same thing. Mrs. Oxley’s medical records indicate that Ben suffered from late decelerations, cord compression, and fetal distress prior to delivery, of which conditions neither doctor informed her.

During Ben’s first year, his pediatricians told Mrs. Oxley that development was slow because of his prematurity. When Ben was 18 months old, Mrs. Oxley took him to the Clayton County Early Intervention Center at the suggestion of a friend. A doctor examined him and diagnosed his cerebral palsy. Mrs. Oxley inquired as to cause and was told by a worker at the center that it was oxygen deprivation.

Mrs. Oxley remained under Dr. Kilpatrick’s care until 1991. She informed him of Ben’s diagnosis and questioned him about having another child. According to Mrs. Oxley, he attributed Ben’s malady to her genetic condition, told her that any child she had would be worse than Ben, and advised her against having any more children.

In 1993, Mrs. Oxley became pregnant again. She began seeing Dr. Schwartz in April or May 1993 because she was informed Dr. Kilpatrick was no longer in practice. Two months after her initial visit, Dr. Schwartz reviewed Mrs. Oxley’s labor and delivery records and informed her that Ben’s condition was caused by oxygen deprivation from fetal distress and could have been prevented if he had been delivered earlier. Dr. Schwartz ordered Mrs. Oxley off her feet and out of work. In January 1994, she gave birth to a healthy girl. This action was commenced in May 1996.

The two-year statute of limitation for medical malpractice actions in OCGA § 9-3-71 (a) begins to run on the date on which an injury arising from an act of malpractice occurs and physically manifests itself, rather than when the plaintiff discovers the causal relationship between the injury and the defendant’s breach of duty. Bryant v. Crider, 209 Ga. App. 623, 625 (1) (434 SE2d 161) (1993). However, “[a] minor who has not attained the age of five years shall have two years from the date of such minor’s fifth birthday within which to bring a medical malpractice action if the cause of action arose before such minor attained the age of five years.” OCGA § 9-3-73 (b). In addition, “[i]f the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.” OCGA § 9-3-96.

In granting the defendants’ motion for summary judgment, the trial court reasoned that Mrs. Oxley consulted a number of physicians about Ben’s condition, that all the prerequisites for accrual of this cause of action existed when she was informed that Ben had cerebral palsy, and that no knowing misrepresentations were made by defendants. In ruling that the statute of limitation barred the action, the court distinguished Bynum v. Gregory, 215 Ga. App. 431 (450 SE2d 840) (1994), and concluded that Bryant, supra, is controlling.

In Bryant, the plaintiff brought a medical malpractice action against a physician and hospital in 1991 as a result of the performance of an abortion in 1987. After the abortion, plaintiff began experiencing symptoms and consulted other physicians rather than the defendants for follow-up care. One of the other physicians attached a probable diagnosis to her symptoms in 1989. We rejected plaintiff’s argument that the two-year limitation provided in OCGA § 9-3-71 (a) began to run on the date she received a diagnosis rather than at the time she began to experience symptoms and complain of them to her physicians. Bryant, supra at 624. On the question of whether the statute of limitation had been tolled, we held that “[o]nce a plaintiff seeks the diagnosis or care of another doctor, she is no longer deterred from learning the true facts by any conduct of a defendant. . . . [Cit.]” Id. at 627 (3).

In Bynum, plaintiffs sued the obstetricians who had delivered their daughter. There was evidence that defendants affirmatively misrepresented to the mother that her child’s abnormal condition was caused by meningitis and failed to inform her that the pediatric diagnosis contained in the mother’s medical records was brain injury due to oxygen deprivation. The mother did not inquire of subsequent treating physicians as to the cause of the condition, and brought suit within two years after becoming aware that the child did not have meningitis. We concluded that a question of fact existed as to whether the failure of the defendants to inform the mother of the etiology of the child’s condition, or the alleged intentional misrepresentation that the child had meningitis, was sufficient to toll the statute of limitation. Bynum, supra, 215 Ga. App. at 433 (1). She was entitled to rely upon her doctors’ affirmative representations and had no duty to investigate or confirm the truth or accuracy of their representations. Id. at 434.

In this case, as in Bynum, other physicians treated the child but the mother remained under the care of the physician who delivered him. The trial court erred in taking as undisputed that no knowing misrepresentations were made by Dr. Kilpatrick. On the record, there is a material issue of fact whether he knowingly misrepresented the etiology. For so long as the mother remained under his care, she was entitled to rely on his representations. Bynum, supra. We cannot hold that, as a matter of law, the statute of limitation was not tolled because a physician treating the child diagnosed his condition or because a non-physician told plaintiff the cause of his condition was oxygen deprivation. Given the evidence of misrepresentations by Dr. Kilpatrick, a jury could find that, as a lay person, plaintiff could reasonably have believed her condition caused the oxygen deprivation and resultant cerebral palsy.

Misrepresentations by Dr. Kilpatrick would toll the statute of limitation as to Dr. Rossi also, because the two doctors jointly treated Mrs. Oxley with respect to the birthing process, including preparation for the delivery, and were thus engaged in a joint venture. “The theory of joint venturers arises where two or more parties combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control (provided the arrangement does not establish a partnership), so as to render all joint venturers liable for the negligence of the other. [Cit.]” Kissun v. Humana, 267 Ga. 419, 420 (479 SE2d 751) (1997) “A partner in a joint venture is liable for the wrongful acts of [his] partner committed in the ordinary course of business of the joint venture. . . .” Block v. Woodbury, 211 Ga. App. 184,186-187 (2) (438 SE2d 413) (1993). Compare Reeck v. Huntington Hosp., 626 NYS2d 516, 517 (1995); Graddy v. New York Med. College, 243 NYS2d 940, 943 (1963).

The trial court’s grant of the defendants’ motions for summary judgment is reversed.

On remand, the issue of the tolling of the statute of limitation should be tried first. If the jury finds it was tolled by fraud, then the issue of medical malpractice should be tried.

Judgment reversed.

Birdsong, P. J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I concur with the majority’s reversal of the trial court’s grant of summary judgment to the defendants.

Mrs. Oxley’s water broke spontaneously on the evening of September 1,1987. Her treating physician, Dr. Kilpatrick, had diagnosed her as a “high risk” pregnancy as a result of her “incompetent cervix.” Dr. Kilpatrick had previously surgically closed off her cervix, which procedure precluded vaginal delivery. When she arrived at South Fulton Hospital between 8:00 and 9:00 p.m., Dr. Rossi came into her room and she asked him who he was as she had never seen him before. She told him she wanted to see Dr. Kilpatrick. Dr. Rossi advised her that “he was Kilpatrick and Moore’s associate, the third associate in the practice.” On cross-examination, she was asked by Dr. Rossi’s attorney: “Q. And how did [Dr. Rossi] identify himself? A. He was Dr. Rossi, third associate in Kilpatrick’s practice.” Dr. Kilpatrick also considered that Dr. Rossi was providing medical care for Mrs. Oxley, in his stead, based upon their mutual arrangement of each caring for the other’s patients. Dr. Rossi acknowledged that he was responsible for Mrs. Oxley’s care and considered her to be his patient during the period he treated her.

Dr. Rossi examined Mrs. Oxley and undertook her medical care. The fetal heart monitor was not activated for approximately one hour, and Dr. Rossi examined the fetal heart monitor printouts. Dr. Rossi spoke with Mrs. Oxley several times during the period he treated her, 8:00-9:00 p.m. through 7:00-7:30 a.m., and never told her the fetus was not doing well. In fact, he represented to Mrs. Oxley that the fetus was doing fine. Dr. Kilpatrick testified that the fetus was in distress beginning at 7:19 a.m. Dr. Kilpatrick further testified that a treating physician has a duty to advise the mother if the fetus is in distress or has a cord compression. Cord compression can cause thrombosis, which condition was present.

At approximately 5:00 a.m., September 2, 1987, after the frequency and intensity of her contractions had increased, Mrs. Oxley overheard the nurses saying they needed to get the doctor right away because the heart rate was becoming depressed during contractions. She asked one of the nurses what was going on and was told by the nurse that she would get the doctor. Dr. Rossi came into her room at approximately 6:00 a.m., and read the fetal heart monitor. Dr. Rossi expressed concern about the baby’s condition and the cerclage, and cut the sutures soon after his arrival.

Approximately 45 minutes after the sutures had been cut, Mrs. Oxley noticed that the fetus’ heart rate started dropping again and was staying depressed for several seconds. She asked the nurses and Dr. Rossi if the fetus was in trouble and they said nothing. At no time during his treatment of Mrs. Oxley did Dr. Rossi consider performing a C-section. Mrs. Oxley was concerned and asked for Dr. Kilpatrick. Dr. Kilpatrick was unaware of Mrs. Oxley’s admission or condition when he coincidentally arrived at South Fulton Hospital to make his routine rounds at approximately 7:00 a.m. Dr. Kilpatrick generally relied upon the physician who was covering for him to handle the patient care, rather than have the hospital call and advise him of the patient’s presence or admission. Mrs. Oxley was advised that a C-section was going to be performed and she was taken into the operating room at approximately 8:00 a.m. The C-section was performed at 8:16 a.m., approximately 13 hours after the spontaneous rupture of the membranes.

Decided March 12,1997

Reconsideration denied April 1,1997

Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Gary C. Christy, Steven K. Leibel, for appellant.

Love & Willingham, Daryll Love, Michael J. Hannan III, Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, for appellees.

It was apparent to Dr. Kilpatrick prior to delivery, as reflected in the pre-operative diagnosis, that there was fetal distress. The fetus also suffered from cord compression as reflected in the Operative Record. Late decelerations and fetal distress were also noted in the Progress Notes, and in the Pathologist’s Report.

Summary judgment is appropriate only when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Here, it is beyond dispute for summary judgment purposes that Drs. Kilpatrick and Rossi were jointly treating Mrs. Oxley during the relevant period of time. The record simply allows no other conclusion. Inasmuch as they were jointly treating Mrs. Oxley, they are jointly liable for any negligence which occurred during the relevant period. A jury question exists as to whether or not the alleged misrepresentations toll the statute of limitation for negligence during the relevant period.