text:
    A98A1486.
    RAY v. THE STATE.
    (503 SE2d 391)
   Eldridge, Judge.

Appellant Hal Oliver Ray challenges his convictions for speeding and attempting to elude a police officer. We affirm.

“On appeal[,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “[T]he relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]” (Emphasis in original.) Jackson v. Virginia, supra at 319.

Viewed in this light, the facts of this case are as follows: At approximately 1:10 a.m. on Sunday, March 30, 1997, Georgia State Patrol Trooper Wayne Brantley had just completed his work shift and was driving home to Toombs County in his patrol car. While driving along Georgia Highway 178 near Reidsville, he noticed a vehicle approaching him at a high rate of speed. He checked the speed by radar, which registered the vehicle’s speed at 131 mph. A second radar check confirmed this speed. Trooper Brantley pulled his patrol car onto the shoulder; activated his blue lights, “wig-wag” headlights, and siren; and made a u-turn. By this time, the speeding vehicle had passed the patrol car, and Trooper Brantley called for assistance. There were no other vehicles in the vicinity at this time.

Trooper Brantley pursued the vehicle, which abruptly turned left onto a dirt road leading to the Georgia State Prison reservation, where some of the employees of the Reidsville facility live. At the time of the incident, Ray was employed as a correctional sergeant at the facility.

The high speed chase continued on the dirt roads. After rounding a curve, Trooper Brantley momentarily lost sight of the speeding vehicle. When he realized that the vehicle was no longer in front of him, he turned left at an intersection. He quickly found the vehicle parked behind a trailer home belonging to Keith Campbell, another prison employee and a friend of Ray. Trooper Brantley examined the vehicle and found that the hood of the vehicle was still “extremely hot. It was very apparent the car had just been parked.” Another officer testified that the vehicle’s muffler was “popping” as it cooled off. Trooper Brantley later confirmed that the vehicle belonged to Ray.

Additional troopers arrived at the Campbell home shortly thereafter, and Mr. and Mrs. Campbell were questioned. Both stated that Ray had arrived unexpectedly at the back door of the trailer a few minutes before; he was driving his Mustang and asked to borrow Campbell’s truck. When Mr. Campbell asked why, Ray responded “Just don’t ask. . . . Don’t ask me any questions.” Ray took the truck to his home, which was also on the reservation a short distance from the trailer.

After talking to the officers, Mr. Campbell took Trooper Brantley and other officers to Ray’s home, where the truck was found. Ray was arrested and taken to the Tatnall County Jail. After being advised of his Miranda rights, Ray told the arresting officers that he had run from the police because “he let peer pressure get the best of him or interfere with his judgment. He let the person that was riding with him encourage him to run[.]” His passenger, Timothy Cash, was very intoxicated at the time of this incident.

A few weeks later, the warden of the prison where Ray was employed questioned Ray about the charges as part of an employment investigation into the incident. Ray was required to cooperate with the investigation as a condition of employment. In response to questioning by the warden, Ray admitted that his radar detector had reacted when Trooper Brantley’s radar clocked Ray’s speed at 131 mph; Ray did not dispute that he was driving this speed. The warden testified that Ray admitted that he had seen “blue lights” behind him and knew he was being chased by a State Trooper, that he left his car at Mr. Campbell’s home, and that he took Mr. Campbell’s truck home. Ray explained to the warden that he knew he had used “bad judgment” in driving at this excessive speed and fleeing the police.

Following a jury trial on September 17, 1997, Ray was convicted of attempting to elude a police officer and speeding. The trial court denied his motion for new trial, and he appeals.

1. In his first enumeration of error, Ray contends that the trial court erred in failing to direct a verdict of acquittal when the State failed to prove all of the elements of OCGA § 40-6-395 (a), which provides that: “It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle.” Specifically, Ray asserts that the State presented insufficient evidence that, at the time of the alleged incident, Trooper Brantley was in uniform, displaying his police badge, and driving a marked police car.

However, Ray “was not entitled to a directed verdict of acquittal on the charge, where there is no suggestion at all that the officer was not in uniform in an appropriately marked car, and the evidence reasonably indicates he was.” Cook v. State, 180 Ga. App. 877, 878 (350 SE2d 847) (1986). “The object of [OCGA §] 40-6-395 (a) is to ensure [that] the offense of ‘attempting to elude’ is not found unless the evidence allows a rational jury to conclude beyond a reasonable doubt that the person fleeing could not reasonably mistake the pursuing police car for something else. . . . When the evidence shows that the officer was on patrol and in his patrol car and had his blue light flashing and siren sounding, the jury may rationally conclude the elements of the code section are proved beyond a reasonable doubt.” Cook v. State, supra at 878-879; see also Lester v. State, 253 Ga. 235, 239 (5) (320 SE2d 142) (1984) (evidence that the police officer was in uniform, that his siren and blue lights were activated, and that the police car was appropriately marked was sufficient, even though no evidence was submitted that a police badge was prominently displayed); Finlon v. State, 228 Ga. App. 213, 214 (2) (491 SE2d 458) (1997); Mooney v. State, 221 Ga. App. 420, 423 (471 SE2d 904) (1996) (evidence that the police officer displayed a “variety of objective indicia of his lawful authority” was sufficient to support jury’s verdict); Reynolds v. State, 209 Ga. App. 628, 629-631 (434 SE2d 166) (1993).

In this case, the evidence showed that Trooper Brantley had just signed off duty and, at 1:10 a.m., was driving his patrol car, which was equipped with “wig-wag” headlights, blue lights, siren, and radar equipment. He encountered a vehicle being driven toward him at 131 mph. As the vehicle passed him, Trooper Brantley activated his lights and siren and made a “u-turn.” The vehicle driver abruptly turned left onto a dirt road. Ray later admitted driving the vehicle that night at a high rate of speed, and testified that he had stopped by a friend’s house in the middle of the night, borrowed a truck, and left his car behind.

The issue to be decided by the jury was whether or not Ray wilfully attempted to flee or elude a police officer. Clearly, the type of clothing that the officer was wearing, or the presence of a specific type of badge, would be irrelevant when considering whether an individual driving 131 mph in the dark, early morning hours was aware that he was being pursued by a police officer, particularly when the patrol car’s lights and siren are activated. See generally Reynolds v. State, supra at 630. Accordingly, any error in the State’s failure to present evidence regarding the officer’s attire was harmless. Ray was not entitled to a directed verdict of acquittal on the attempting to elude charge.

2. In his second enumeration of error, Ray asserts that the trial court erred in failing to conduct a Jackson-Denno hearing regarding the voluntariness of his statements to the prison warden during noncustodial questioning about the incident; such questioning was related to Ray’s employment at the prison as a correctional officer. However, Ray failed to raise this issue in his motion for new trial and failed to cite to any authority regarding this enumeration in his appellate brief to this Court, as required by Court of Appeals Rule 27 (c) (3) (i). Accordingly, this issue was waived.

Moreover, notwithstanding such waiver, the evidence is clear that Ray was being questioned by his employer and was not under arrest or in custody at the time of such questioning, so that his constitutional rights could not have been violated. Gaston v. State, 153 Ga. App. 538, 539 (3) (265 SE2d 866) (1980). Therefore, no JacksonDenno hearing was required.

3. In his third enumeration, Ray asserts that the evidence was insufficient to support the verdict. However, after applying the principles set forth in Division 1, supra, this Court finds that the evidence was more than sufficient to find Ray guilty beyond a reasonable doubt of speeding and attempting to elude a police officer. There was no error.

Judgment affirmed.

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

Decided June 29, 1998.

Richard D. Phillips, for appellant.

Wensley Hobby, Solicitor, for appellee.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       The issue of whether Ray was entitled to a determination of the voluntariness of his statements under OCGA § 24-3-50 was not raised in this appeal and, therefore, will not be addressed herein. See generally Griffin v. State, 230 Ga. App. 318 (496 SE2d 480) (1998).


source: Caselaw Access Project

author: Pope, Presiding Judge. Beasley, Judge,

license: Public Domain

text:
    A98A0200.
    G. J. SORACCO, M.D., P.C. v. DOMINECK.
    (502 SE2d 732)
   Pope, Presiding Judge.

Plaintiff Susie H. Domineck brought a medical malpractice action against Dr. G. J. Soracco and his professional corporation, G. J. Soracco, M.D., P.C. Defendants filed a joint answer, raising the defense of insufficiency of service of process. Subsequently, defendants filed a motion to dismiss and a motion for summary judgment, on the grounds that service of process was defective as to both defendants and that the statute of limitation had expired on plaintiffs malpractice claim. Plaintiff then filed a motion for the appointment of a process server. However, it is undisputed that this second service was outside the statute of limitation. The trial court granted defendant Dr. Soracco’s motion for summary judgment, finding that the action against him was time barred because service was not made in a proper and timely manner. However, the trial court denied the professional corporation’s motion for summary judgment, finding that it was “timely and properly served, as process was left with a corporate employee of suitable discretion.” This appeal follows our grant of the corporation’s application for interlocutory review.

The record shows that process was served upon Bessie Coverson, Dr. Soracco’s medical assistant. Coverson testified in her deposition that she had worked for Dr. Soracco for approximately 30 years, although prior to 1979 she worked in Dr. Soracco’s home as a domestic helper as well as his office. Coverson testified that her job was to assist Dr. Soracco with his patients by being in the room when he examined female patients, by reviewing charts for past due accounts, and by placing the charts in order for the next day’s appointments. Coverson testified that she also worked in the front part of the office when the secretary/office manager was absent, but that it was rare (less than one occasion per week) for the secretary to be absent. During those times she would answer the phone and make appointments. She also testified that she had on occasion received UPS deliveries, and that she sometimes goes through the mail in order to place separate magazines out for placement in the waiting room, but that she never opens the mail, which she places on the secretary’s desk.

Coverson further testified that she was alone in the office on the day process was served, and that a person in a brown uniform came into the office and said she had some papers for Dr. Soracco. Cover-son testified she did not pay attention to the uniform and did not notice any patches or identifying characteristics. According to Cover-son, the deputy asked her if Dr. Soracco was in the office, and when Coverson said he was not, asked Coverson if she could sign for some papers for him. Coverson responded affirmatively. Coverson testified that she did not know what she was signing for and that the papers were in an envelope, which she placed on the doctor’s desk. She testified that it was not until the next day that Dr. Soracco informed her what the papers were and told her that they should have been given to him personally. Both Dr. Soracco and Coverson submitted affidavits stating that Coverson had not been designated as an agent for service for the corporation, nor had she been authorized to accept service on behalf of the corporation. Dr. Soracco also averred that Cover-son’s duties were purely of a medical nature, and that she performed, no managerial duties.

OCGA § 9-11-4 (d) provides that a corporation may be served by delivering the summons and complaint to “the president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof. . . .” “In order for an employee to be authorized to accept service on behalf of a corporation, it is necessary that the employee’s position be ‘such as to afford reasonable assurance that he will inform his corporate principal that such process has been served upon him.’ Scott v. Atlanta Dairies Co-Op, 239 Ga. 721, 724 (238 SE2d 340) (1977). . . . However, if the employee is not an officer or has not been expressly designated by the corporation to receive service, it is necessary that he or she occupy some position of managerial or supervisory responsibility within the organization. See Headrick v. Fordham, 154 Ga. App. 415 (1) (268 SE2d 753) (1980). Accord Citizens Bank of Hapeville v. Alexander-Smith Academy, 226 Ga. 871 (178 SE2d 178) (1970); Adair Realty Co. v. Greenbriar-Fulton, 149 Ga. App. 669 (255 SE2d 128) (1979).” Whatley’s Interiors v. Anderson, 176 Ga. App. 406, 407 (2) (336 SE2d 326) (1985).

The trial court erred in denying the corporation’s motion under the undisputed facts of this case. The evidence is uncontradicted that Coverson had no managerial or supervisory responsibilities. To the contrary, the evidence shows that although she had been a long-time employee of the doctor and of the corporation, she had very well-defined and limited duties. This is not a case where she represented to the serving officer that she had authority to accept service; Cover-son testified that she did not know the nature of the documents for which she signed. Cf. Murray v. Sloan Paper Co., 212 Ga. App. 648 (442 SE2d 795) (1994). The officer’s return of service, which merely states that service was “notorious,” does not contradict Coverson’s testimony. Nothing about her title or position would give rise to the reasonable assumption that she was an agent for corporate service. Cf. Floyd v. Piedmont Hosp., 213 Ga. App. 749, 750 (1) (445 SE2d 844) (1994). “[Although it is not necessary for the person who is served to be an officer of the corporation, [cit.], service upon a mere receptionist will not suffice. [Cits.]” Bowers v. Economation, Inc., 208 Ga. App. 661, 663 (431 SE2d 420) (1993). See also Ludi v. Van Metre, 221 Ga. App. 479, 481-482 (471 SE2d 913) (1996). The trial court’s order insofar as it pertains to the defendant corporation is reversed.

Judgment reversed.

Ruffin, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur specially to focus on the deputy’s return of service on the corporation. She filled in the form as follows, checking and marking the section entitled “NOTORIOUS”: “I have this day served the defendant G.J. Soracco M.D., RC. by leaving a copy of the action and summons at his most notorious place of abode in this County. Delivered same into hands of Mrs. Bessie Coverson (Med. Asst.) described as follows[:] age, about _ years; weight, about _ pounds; height, about_feet and_inches, domiciled at the residence of defendant.”

There is a section on the form, immediately under the portion utilized and designated “CORPORATION,” for return of service on an entity such as Dr. Soracco’s professional corporation. That section, which was left blank and unchecked, reads: “Served the defendant _a corporation by leaving a copy of the within action and summons with_in charge of the office and place of doing business of said Corporation in this County.”

There are two points of factual significance. The return of service is patently inaccurate. First, the professional corporation has no “place of abode” in the county. That concept applies to individuals, not corporations. See OCGA § 9-11-4 (d) (7). Second, Coverson was not a resident of the address at which service was attempted, i.e., the location of the corporate office.

Legally, of course, the method of service authorized by OCGA § 9-11-4 (d) (7) cannot be used to accomplish service of process on a corporation. The methods provided in subsection (d) (1) are the proper ones.

This defect is controlling, and there is no necessity to proceed to an analysis of whether Coverson was a proper person to be served on behalf of the corporation.

Even if the further step were necessary for resolution of the issue on appeal, we could not effectively transfer the handwritten information to the section on corporations so as to legitimize the service. The deputy’s failure to choose the section regarding service on a corporation shows that the deputy never understood, nor intended to convey, that she believed Coverson was an agent or in charge of the office or one of the persons designated by the Code for receipt of service. As handwritten by the deputy, she simply identified Coverson as a medical assistant, not a person having any supervisory or managerial responsibilities.

Decided April 2, 1998

Reconsideration denied June 30, 1998

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, James B. Manley, Jr., for appellant.

Slater, King & Gross, Cary S. King, Andrew N. Gross, for appellee.

Defendant submitted uncontradicted affidavits from Dr. Soracco and Coverson that she had no such responsibilities. With that, service would be ineffectual. See Whatley’s Interiors v. Anderson, 176 Ga. App. 406, 407 (2) (336 SE2d 326) (1985). Regardless of what level of deference we accord the trial court’s findings of fact, the record reflects no evidence in favor of a finding Coverson was authorized to accept service of process. See Due West Assoc. v. Renfroe Mining &c. Co., 194 Ga. App. 397 (391 SE2d 13) (1990). A medical assistant who serves periodically as a receptionist, even if the office is otherwise empty at times, is alone insufficient. See Bowers v. Economation, Inc., 208 Ga. App. 661, 663 (431 SE2d 420) (1993).

I concur in the judgment because of the deficient, inaccurate return.


author: Beasley, Judge.

text:
    A98A0295.
    MEADOW RIVER LUMBER COMPANY et al. v. UNIVERSITY OF GEORGIA RESEARCH FOUNDATION, INC.
    (503 SE2d 655)
   Beasley, Judge.

Meadow River Lumber Company and Curlpak, Inc. (appellants) are licensee and sub-licensee respectively to certain exclusive rights to two patents owned by University of Georgia Research Foundation related to an apparatus and method for making curled wood flakes which are used in the potpourri industry. After learning of alleged use of the device more than one year prior to the Foundation’s application for the patents, appellants brought suit alleging the Foundation breached the patent licensing agreement, committed fraud in the inducement, and is liable to indemnify appellants against claims of other sub-licensees who relied on the validity of the patent. The Foundation filed a motion to dismiss under OCGA § 9-11-12 (b) (6) which was converted into a motion for summary judgment under OCGA § 9-11-56 and granted on all counts.

A party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The evidence is construed most strongly against the movant.

In appellants’ favor is evidence that on May 26, 1992, the Foundation licensed to Meadow River the exclusive right to make, use, and sell “wood curls” produced on the patented machine in the United States. An amendment gave Meadow River a worldwide exclusive license to make, have made, use and lease the patented equipment. As authorized by the agreement, Meadow River sub-licensed the rights to Curlpak and two others. Curlpak further sub-licensed its rights.

On March 21, 1995, Meadow River became aware of facts upon which it bases a claim that the patents were never valid in that allegedly they had been exploited commercially more than one year in advance of the patent application. Since that time, Meadow River has demanded that the Foundation take steps to stop any infringing use of the patents. On August 8, 1996, Meadow River and Curlpak filed this suit. Meadow River has not made any royalty payments since February 1994, and the Foundation counterclaimed alleging breach of contract for this and other reasons.

Certain background matters set this case in context.

(a) State court jurisdiction involving patents.

Federal district courts have original jurisdiction of “any civil action arising under any Act of Congress relating to patents,” but that jurisdiction is narrowly defined to include only “those cases in which a well-pleaded complaint establishes either that federal patent law creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims.” The test requires that patent law be essential to each of several alternative theories of recovery under at least one claim for federal jurisdiction to exist. Where no federal jurisdiction exists, state courts may address questions of patent validity.

The United States District Court for the Middle District of Georgia already determined that it did not have jurisdiction over Meadow River’s claims. It held that though the claims “may relate to patents,” they are state law claims and belong in state court. Meadow River did not appeal this decision.

(b) Application of Georgia law.

Patents are based exclusively on federal law, and state courts are advised to look to the decisions of the Circuit Court for the Federal Circuit for guidance on questions involving patent law. But patent licenses are not governed by the patent act. Accordingly, the construction of patent license agreements is solely a matter of state law.

Under Georgia law, two actions are available to one who was fraudulently induced by misrepresentations into entering a contract: affirm the contract and sue for breach or seek to rescind and sue in tort for fraud and deceit. Appellants assert both claims. Although appellants’ brief is written as if Meadow River and Curlpak stood on equal footing, Meadow River is the only party in a direct contractual relationship with the Foundation. Curlpak, a sub-licensee of Meadow River, has no standing to bring any of these claims.

1. In Count 1 of its complaint, Meadow River alleges the Foundation breached the licensing agreement by failure of consideration because “the patents that are the subject matter of the . . . agreement and the sole consideration provided by the Foundation were improperly issued, and are unenforceable and of no value whatsoever.” This contention is based on the contention that the product was in public use or on sale more than one year prior to the date of the application for the patents, which, if it had been disclosed to the Patent Office, would have been fatal to a patent application under federal law, and that therefore the patents are invalid. For the purpose of this appeal we accept as true that the evidence presents a question of fact as to whether prior use or sale of the device should have prevented acceptance of the patent application by the Patent Office under 35 USC § 102 (b) or otherwise rendered the patent invalid.

But Meadow River did not bargain for a warranty of patent validity. “A mere license is not deemed to constitute any interest in the patent. A license is but a promise by one having an interest in a patent to forbear from suing one who would commit what would be, but for the license, an infringement of that interest.” As stated by the Supreme Court, “a manufacturer gains only two benefits if he chooses to enter a licensing agreement. . . . First, . . . the licensee may have avoided the necessity of defending an expensive infringement action during the period when he may be least able to afford one. Second, the existence of an unchallenged patent may deter others from attempting to compete with the licensee.”

In accord with the definition of a patent license, Meadow River’s license agreement makes no representations about the validity of the patents. On appeal, appellants now admit that they “did not bargain for patents warranted to be valid, instead, they bargained for patents that were not known by [the Foundation] to be invalid.” Because validity of the patent is not part of the consideration, there is no claim for failure of consideration as a matter of law.

Further, any claim of breach of warranty regarding the validity of the patent or the nature of the rights obtained is precluded by the terms of the license agreement. As noted by the trial court, the license expressly disclaims any representations or warranties associated with the patents. The license states “[THE FOUNDATION] MAKES NO Representation OR WARRANTY OF ANY KIND WITH RESPECT TO THE LICENSED PATENTS OR LICENSED TECHNOLOGY AND EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY OTHER IMPLIED WARRANTIES WITH RESPECT TO THE CAPABILITIES, SAFETY, UTILITY, OR COMMERCIAL APPLICATION OF LICENSED PATENTS OR LICENSED TECHNOLOGY.” The license agreement also contains a clause which states that the agreement “constitutes the entire agreement between [the Foundation] and LICENSEE with respect to the subject matter hereof and shall not be modified, amended or terminated except as herein provided or except by another agreement in writing executed by the parties hereto.”

Meadow River urges that the second clause is not a “merger clause.” A merger clause typically includes a provision which merges into the agreement any prior representations between the parties. But Meadow River does not complain about alleged prior representations or understandings. The provisions quoted above bar all aspects of Meadow River’s breach of contract claim. Where “the allegedly defrauded party elected to affirm the contract, that party is bound by the contract’s terms and is subject to any defenses which may be based on the contract.”

Meadow River argues its claim survives application of the disclaimer and entire agreement clause. It quotes SCM Corp. v. Thermo Structural Products: “Even though a party electing to affirm a contract is ordinarily bound by a merger clause contained therein [cits.], a merger clause is without application where the fraud allegedly perpetrated concerned intrinsic defects in the article forming the subject matter of the contract and was such as to prevent the defrauded party from exercising its own judgment. [Cits.]”

As stated in the quotation, this rule applies only where there is an intrinsic defect and the seller has prevented the purchaser from exercising his own judgment. That has not happened here. There is no intrinsic defect in what Meadow River received. The nature of a patent and a patent license simply does not include a warranty of validity of the patent.

Meadow River argues in support of its breach of contract claim that although the Foundation did not make any warranty of validity, it licensed patents which it knew to be invalid.

This theory addresses the concept of passive concealment similar to that used in connection with the purchase and sale of real estate. In real estate transactions, there is an exception to the general rule of caveat emptor which “places upon the seller a duty to disclose in situations where he or she has special knowledge not apparent to the buyer and is aware that the buyer is acting under a misapprehension as to facts which would be important to the buyer and would probably affect its decision” if such action constitutes fraud.

Passive concealment does not apply to a breach of contract Action but rather to one for fraud. Meadow River’s fraud claim is addressed in Division 2.

Even if the theory had been urged in connection with the charge of fraud, the result would be the same.

We see no grounds for extending this exception to the general rule of caveat emptor to patent license agreements. The Wilhiteapplied exception is limited “ ‘to controversies between residential homeowners and residential builder/sellers’” and “is concerned with concealed defects that purchasers in the exercise of due diligence could not detect. ‘It is only when the defects in the property are of a nature that the buyer could not discover them through the exercise of due diligence that any burden is placed on the seller to disclose the seriousness of the problems of which he is aware, provided the seller knows that the buyer is acting under a misapprehension as to the facts which would be important to the buyer in making his decision. (Cit.)’ [Cit.]”

No evidence shows that, through the exercise of due diligence, Meadow River could not have discovered all the information about the early possible commercial exploitation of the device that it alleges supports its cause of action.

The court properly granted summary judgment as to Meadow River’s claim for damages and as to Curlpak.

2. Count 2 of Meadow River’s complaint is a claim in tort for fraud. “One who seeks rescission of a contract for fraud must restore or offer to restore the consideration received thereunder, as a condition precedent to bringing the action [cit.]; however, restoration by the purchaser is not an absolute rule, and does not require that the defrauding party be placed in exact status quo, but only that he be placed substantially in his original position and that the party rescinding derives no unconscionable advantage from the rescission. [Cits.] One seeking to rescind a contract for fraud must restore or tender back the benefits received under the contract, or show a sufficient reason for not doing so; he need not tender back what he is entitled to keep, and need not offer to restore where the defrauding party has made restoration impossible [cit.], or when to do so would be unreasonable. [Cits.]” The defrauded party must act promptly.

The Foundation asserts that Meadow River has not rescinded the license agreement because it never offered or tendered to the Foundation the benefits it received under the contract, i.e., the licensed technology and the right to use it, and therefore is not entitled to sue in tort for fraudulent inducement. Meadow River did not request rescission in its complaint, nor did it allege rescission was impossible. “Critical to rescission is the tender of benefits, the prompt restoration or offer to restore whatever the complaining party received by virtue of the contract. OCGA § 13-4-60; [cits.].”

Meadow River concedes it failed to tender or offer to tender the benefits it received but instead argues it was excused in that (1) “[s]ince the patents are of no value, to return what was obtained under the License Agreement is unnecessary,” and (2) rescission is not possible because appellants have sub-licensed the patents. Meadow River’s arguments are inconsistent, unsubstantiated and without merit. The license agreement gives Meadow River an unrestricted right to terminate the agreement at any time. Although Meadow River has sub-licensed the patent rights to Curlpak and others, it provides no evidence that these sub-licenses restrict its right to terminate the license with the Foundation. Its mere assertion is an insufficient response to the motion for summary judgment.

Further, the sub-licenses, including Curlpak’s, contain a provision permitting Meadow River to freely assign the agreement without the consent of the sub-licensee. Appellants have not explained why they could not assign the sub-licenses back to the Foundation. Their argument that the sub-licenses prohibit rescission belies their contention that the patents are without value. If the patents have no value, then what have appellants sub-licensed? Crews v. Cisco Bros. is distinguishable because Meadow River does not contend and has not shown it is unconditionally obligated to the sub-licensees.

In fact, rather than rescinding, Meadow River has affirmed the license. After March 21, 1995, the day Meadow River admits it knew the facts upon which the allegations of fraudulent inducement are based, it began demanding that the Foundation “immediately end the infringement of the patents,” and it continued to sub-license the patent technology. “Where a party who is entitled to rescind a contract on ground of fraud or false representations, and who has full knowledge of the material circumstances of the case, freely and advisedly does anything which amounts to a recognition of the transaction, or acts in a manner inconsistent with a repudiation of the contract, such conduct amounts to acquiescence, and, though originally impeachable, the contract becomes unimpeachable in equity. If a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it. Otherwise he can not avoid or rescind such contract.”

Decided June 30, 1998

Cook & Connelly, Bobby Lee Cook, James E. Spence, Jr., for appellants.

Chilivis, Cochran, Larkins & Bever, Nickolas P. Chilivis, Anthony L. Cochran, John K. Larkins, Jr., for appellee.

Summary judgment on appellants’ claim in tort for fraudulent inducement was properly granted.

3. Count 3, appellants’ claim for indemnification, is dependent on the others, and therefore summary judgment on that claim was also proper.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       OCGA § 9-11-56 (c).

        Burnette Ford v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971); Virgil v. Kapplin, 187 Ga. App. 206, 207 (1) (369 SE2d 808) (1988).

       A patent confers certain rights on the patent holder (or patentee), including the exclusive right to make, use and sell an invention, the right to transfer those rights, and the right to sue infringers. Rosenberg, Patent Law Fundamentals, Vol. 3, § 16.01 [1], p. 16-4; Black’s Law Dictionary, 5th ed.

       28 USC § 1338 (a).

        Christianson v. Colt Indus. Operating Corp., 486 U. S. 800, 809 (108 SC 2166, 100 LE2d 811) (1988).

       Id. at 810; American Tel. &c. Co. v. Integrated Network Corp., 972 F2d 1321, 1324 (Fed. Cir. 1992).

       See Lear, Inc. v. Adkins, 395 U. S. 653, 670 (89 SC 1902, 23 LE2d 610) (1969).

        See American Tel. &c. Co., supra, 972 F2d at 1325.

       Rosenberg, Patent Law Fundamentals, Vol. 3, § 16.01 [1] [b], p. 16-15 (2nd ed. 1998 rev.).

        Lear, Inc., supra, 395 U. S. at 661-662.

        City Dodge v. Gardner, 232 Ga. 766, 768 (208 SE2d 794) (1974). Accord Brown v. Techdata Corp., 238 Ga. 622 (234 SE2d 787) (1977).

       See 35 USC § 102 (b).

       (Citations omitted.) Rosenberg, supra, § 16.01 [1] [b], p. 16-13.

        Lear, Inc., 395 U. S. at 669. This later point is especially true in the case of an exclusive license. See id. at n. 16. An exclusive license precludes the licensor from granting any other license. Rosenberg, supra, § 16.01 [1] [b], p. 16-14.

       See, e.g., Gaines v. Crompton & Knowles Corp., 190 Ga. App. 863, 866 (4) (C) (380 SE2d 498) (1989); see also Health Svc. Centers v. Boddy, 257 Ga. 378, 380 (359 SE2d 659) (1987) (basis of merger is “all prior negotiations, understandings, and agreements on the same subject are merged into the final contract, and are accordingly extinguished”).

        Hightower v. Century 21 Parish Realty, 214 Ga. App. 522, 523-524 (1) (448 SE2d 271) (1994); Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74, 75 (441 SE2d 421) (1994); see also Carpenter v. Curtis, 196 Ga. App. 234, 236-237 (395 SE2d 653) (1990). See also Potomac Leasing Co. v. Thrasher, 181 Ga. App. 883, 886 (354 SE2d 210) (1987), citing Roth v. Bill Heard Chevrolet, 166 Ga. App. 583 (305 SE2d 31) (1983) (merger clause defeats fraud claim if contract affirmed); Joseph Charles Parrish, Inc. v. Hill, 173 Ga. App. 97, 99-100 (5) (325 SE2d 595) (1984) (either merger or disclaimer provision).

       153 Ga. App. 372, 373 (265 SE2d 598) (1980).

       Id.

        Wilhite v. Mays, 140 Ga. App. 816, 818 (3) (232 SE2d 141) (1976), aff’d, 239 Ga. 31 (235 SE2d 532) (1977) (adding emphasis on fraud).

       Id.; Deckert v. Foster, 230 Ga. App. 164 (495 SE2d 656) (1998).

        Armstrong Transfer &c. Co. v. Mann Constr., 217 Ga. App. 538, 539 (1) (458 SE2d 481) (1995).

        Smalls v. Blueprint Dev., 230 Ga. App. 556, 557-558 (1) (497 SE2d 54) (1998).

       See, e.g., Transitron Electronic Corp. v. Hughes Aircraft Co., 649 F2d 871, 874-875 (1st Cir. 1981) (licensee may recover when the patent holder has induced the licensee to enter into the license agreement through fraud). See Lear, Inc., supra, 395 U. S. at 668-671 (licensee not estopped to challenge the validity of the licensed patent in a suit for recovery of royalties).
      Historically a patent licensee was estopped to challenge the validity of the patent so long as he was operating under the license agreement. Automatic Radio Mfg. Co. v. Hazeltine Research, 339 U. S. 827, 836 (70 SC 894, 20 LE2d 651) (1950). “A patent, in the last analysis, simply represents a legal conclusion reached by the Patent Office.” Lear, Inc., supra, 395 U. S. at 670. But in the landmark case of Lear, Inc. v. Adkins, the Supreme Court held that a licensee is not estopped to assert the invalidity of the patent. Id. at 670-671.

        Crews v. Cisco Bros. Ford-Mercury, 201 Ga. App. 589 (1) (411 SE2d 518) (1991).

       OCGA § 13-4-60.

        Carpenter v. Curtis, supra, 196 Ga. App. at 237.

       201 Ga. App. at 590 (1).

        Gibson v. Alford, 161 Ga. 672, 673, hn. 5 (132 SE 442) (1926); Owens a Union City Chrysler-Plymouth, 210 Ga. App. 378, 380 (436 SE2d 94) (1993). See also Orion Capital Partners v. Westinghouse Elec. Corp., 223 Ga. App. 539, 543 (2) (a) (478 SE2d 382) (1996) (plaintiff took actions incompatible with, contract rescission).


author: McMURRAY, Presiding Judge.

text:
    A98A0431.
    CARRIER TRANSICOLD DIVISION v. SOUTHEAST APPRAISAL RESOURCE ASSOCIATES, INC.
    (504 SE2d 25)
   McMURRAY, Presiding Judge.

Carrier Corporation is a Delaware corporation registered to do business in Georgia, and its registered agent for service of process is C. T. Corporation System. Carrier Transicold Division is not a legal entity, but is a division of Carrier Corporation.

Plaintiff Southeast Appraisal Resource Associates, Inc. filed this action on an open account, naming as defendant Carrier Transicold Division. The complaint and summons were served on C. T. Corporation System as the registered agent for service, and the documents were returned to plaintiff’s attorney with the explanation that C. T. Corporation System was not the registered agent for service for a company by the name of Carrier Transicold Division.

Pursuant to plaintiff’s motion, default judgment was entered against Carrier Transicold Division. After Carrier Corporation learned of the default judgment, it entered a limited appearance to petition the state court to set aside the default judgment. The state court denied the motion to set aside judgment, and this Court granted Carrier Corporation’s application seeking permission to file a discretionary appeal. Held:

“It is a fundamental tenet of due process that a defendant have notice of suit in accordance with law.” Castellana v. Conyers Toyota, 200 Ga. App. 161, 162 (1), 163 (407 SE2d 64). One of the alternative methods of providing such notice to a corporate defendant is by service on a registered agent. See OCGA § 9-11-4 (d). The practical result of this statutory provision is the creation of a business, that is, the business of serving as registered agent. An entity in this business might serve as registered agent for any number of corporations. When such an entity is served with a lawsuit, it must determine if the named defendant is among its clients. If the named defendant is recognized as a client, the summons and complaint are forwarded to the client. This process is simple where the client is clearly named as defendant in a lawsuit. But the process can become more complex. “A corporation conducting business in a trade name may sue or be sued in the trade name. [Cits.]” John L. Hutcheson Mem. Tri-County Hosp. v. Oliver, 120 Ga. App. 547 (1) (171 SE2d 649). Thus, the entity in the business of serving as registered agent must be prepared to recognize the trade names of its clients and also to recognize some misstatements of its clients’ names. See Miller v. U. S. Shelter Corp. of Delaware, 179 Ga. App. 469, 471-473 (2), (3) (347 SE2d 251). “‘A suit at law is not a children’s game, but a serious effort on the part of adult human beings to administer justice; and the purpose of process is to bring parties into court. If it names them in such terms that every intelligent person understands who is meant, ... it has fulfilled its purpose; and courts should not put themselves in the position of failing to recognize what is apparent to everyone else. . . . “As a gen(e)ral rule the misnomer of a corporation in a notice, summons, notice by publication, garnishment citation, writ of certiorari, or other step in a judicial proceeding is immaterial if it appears that it could not have been, or was not, misled.” (Cit.)’ United States v. A. H. Fischer Lumber Co., 162 F2d 872, 873 (4th Cir. 1947). Our own Georgia cases implicitly followed this rationale and do not hold that the existence of a mere misnomer authorizes one freely to ignore the fact that he has been served with legal process.” (Emphasis in original.) Id. at 472-473 (3).

Decided June 30, 1998.

Long, Weinberg, Ansley & Wheeler, Mary D. Owens, Carol P. Michel, for appellant.

Thomas P. Stamps, for appellee.

Unlike the Miller case, in which there was no issue as to the identity of the intended defendant, the substantive portions of the complaint, in the case sub judice, actively mislead as to the identity of the intended defendant. Plaintiff has alleged that the defendant Carrier Transicold Division “is a Delaware corporation registered to do business in the State of Georgia.” Of course, this is a representation which excludes the possibility that the named defendant is a trade name of some other corporation. And it is clear from the Miller decision, a case also involving service upon the same registered agent, that C. T. Corporation System was not only authorized, but required to consider the substantive provisions of the complaint in determining the identity of the intended defendant. It follows that the action of C. T. Corporation System in returning the complaint to plaintiff was appropriate since it was not the registered agent of the corporation described in the complaint. Furthermore, there has been no proper service of process upon any defendant in the case sub judice, the state court lacked jurisdiction over any party defendant, and the motion to set aside pursuant to OCGA § 9-11-60 (d) (1) should have been granted.

Judgment reversed.

Blackburn and Eldridge, JJ, concur.


author: Ruffin, Judge.

text:
    A98A0453.
    THOMAS v. CSX TRANSPORTATION, INC.
    (503 SE2d 662)
   Ruffin, Judge.

James Larry Thomas sued his employer, CSX Transportation, Inc. (“CSX”), under the Federal Employers’ Liability Act (“FELA”), 45 USC § 51 et seq., for injuries he suffered in an automobile collision while en route to work. The collision involved the van transporting Thomas and other CSX employees to a job site and an unoccupied pickup truck which rolled into the moving van. The trial court granted CSX summary judgment, and Thomas appealed. For reasons which follow, we reverse.

“Summary judgment is appropriate when the evidence, construed in the nonmovant’s favor, shows no issue of material fact remains and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. (Cit.)’ Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).” Key v. Norfolk Southern R. Co., 228 Ga. App. 305 (491 SE2d 511) (1997).

Viewing the evidence in the light most favorable to Thomas, the nonmovant, we find that CSX hired City Contract Bus Service, Inc. (“Bus Service”) to provide transportation services for CSX employees. On February 1, 1994, Bus Service employee Sydney Johnson was transporting four CSX workers, including Thomas, in a Bus Service van. The van was traveling north on Highway 411, a two-lane road. North of the van on the right-hand side of the highway was a convenience store where the pickup truck involved in the collision was located. The store parking lot had two entrances separated by a grassy median and ditch. Gas pumps were located in the parking lot of the store. The parking lot was situated on a slight upgrade from the road. Johnson had a clear view of the store from 600 to 800 feet south of the store’s location. Evidence was presented that the speed limit was 45 mph and that Johnson was traveling 50 to 55 mph.

Despite the highly visible nature of the store and its parking lot, Johnson testified that he did not see the pickup truck moving backwards away from the store towards the highway until he was 15 to 20 feet south of the store. The collision occurred when Johnson continued traveling in his lane and the unoccupied truck rolled into the right side of the van. Johnson said he could not turn left or right to avoid the collision. While Johnson first testified during his deposition that he never saw a driver in the truck, he later stated that prior to the collision it appeared that there was someone in the truck.

Trooper C. G. Payne of the Georgia State Patrol investigated the collision and testified that he found no evidence Johnson attempted to avoid being struck by the truck. Payne further commented that “I think there could have been some evasive action taken. As to what amount, you know, it would be speculation.” However, upon requestioning, Trooper Payne agreed that given his limited reconstruction of the collision, he could not make a conclusion whether Johnson could have taken evasive action.

Thomas testified that he was sitting in the middle seat of the van on the right side. When he first saw the truck, it was already rolling backwards and the rear of the truck had reached the grassy median next to the highway. According to Thomas, when he noticed the truck coming toward the road, he yelled “look out. . . he’s going to hit us.” Thomas testified that Johnson did not apply his brakes before impact. Thomas stated that he knew of no reason why Johnson could not have stopped the van prior to impact, although he admitted he did not know whether Johnson could have veered left or right. Thomas claimed injuries from the collision.

Stephen Standridge, another CSX employee who was sitting in the front passenger seat of the van, testified that prior to impact Johnson did not slow down and did not steer left or right to avoid the collision.

CSX employee Larry Beasley, who was riding in the back seat of the van, testified that he saw the truck moving backwards when it was near the gas pumps in the middle of the store’s parking lot. Beasley stated that he believed Johnson could have taken evasive action since, “if I seen the pickup, he should have noticed it.” However, Beasley admitted that when he first saw the truck, he did not think there was a problem or potential hazard from the truck’s movement.

After hearing this evidence, the trial court granted CSX summary judgment, finding that Thomas’ injuries were not caused to any extent by Johnson’s alleged negligence.

FELA “makes a common carrier engaged in interstate commerce ‘liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier.’ 45 U.S.C. § 51.” Richardson v. Missouri Pacific R. Co., 677 F2d 663, 665 (8th Cir. 1982). “A railroad company is not an insurer in a FELA case. What the carrier must do is exercise reasonable care in view of the existing circumstances. . . . The carrier is required to take precautions commensurate with danger inherent in the situation and to exercise ordinary care proportionate to the consequences that might be reasonably anticipated from neglect.” (Citations omitted.) Hepner v. Southern R. Co., 182 Ga. App. 346, 347 (356 SE2d 30) (1987). “Under [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” (Citation and punctuation omitted.) CSX Transp. v. Snead, 219 Ga. App. 491, 495 (2) (465 SE2d 690) (1995).

“As a general proposition issues of negligence [and] contributory negligence . . . are not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the ordinary manner. [Cit.] The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable. [Cit.]” Ellington v. Tolar Constr. Co., 237 Ga. 235, 237 (227 SE2d 336) (1976).

In this case, Johnson had the right to assume, since he had the right of way on the highway, that the truck would obey the rules of the road. Kicklighter v. Jones, 202 Ga. App. 654 (415 SE2d 302) (1992). He also had the right to proceed at a reasonable speed. Id. However, Johnson was required to “‘exercise ordinary care in the control, speed and movements of his vehicle to avoid a collision after he sees or by ordinary diligence could have seen that [his van was] threatened by the active negligence of another. (Cit.)’ [Cit.]” Id. at 655. And, he was prohibited from traveling “at a speed greater than [was] reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing.” OCGA § 40-6-180.

We find that questions of fact remain regarding whether Johnson exercised ordinary care in the control, speed, and movements of the van. Kicklighter, supra. The evidence showed that Johnson was speeding, and thus a jury question exists whether Johnson’s speed contributed to the collision. And, the evidence is unclear whether Johnson could have slowed prior to the collision or taken other evasive action. It is also unclear whether Johnson saw no one in the truck so as to alert him to the potential danger of a runaway vehicle. Additionally, a jury question remains whether Johnson, through the exercise of ordinary diligence, should have seen the truck rolling backwards sooner, given the clear visibility and the fact that several of his passengers saw the truck before he did. And, a connected issue for resolution is whether Johnson should have ascertained the danger posed by the truck’s backing even had he seen it from a distance farther than 15 to 20 feet.

We find Edwards v. Trammell, 187 Ga. App. 22 (369 SE2d 288) (1988), upon which the trial court relied in granting CSX summary judgment, inapposite and distinguishable. In Edwards, a bus driver, while operating a school bus eastbound on an Atlanta road, pulled into an intersection to turn left. Before starting her turn, she looked ahead at traffic heading westbound to see if the lanes were clear. As she started making her turn, the plaintiff, who was heading westbound, entered the intersection on a red light and collided with the front of the bus. The plaintiff sued the bus driver, the trial court granted the bus driver summary judgment, and we affirmed. Id. at 24. Unlike the instant case where Johnson was speeding and questions remain regarding whether he was exercising diligence in watching traffic in front of him and whether he had time to react to avoid the collision, it was clear in Edwards that the bus driver exercised ordinary diligence in looking ahead before making her turn, she was not speeding, and she had no time to react to the plaintiff’s negligent conduct.

Accordingly, we cannot hold as a matter of law that Johnson was not negligent, even in the slightest, and his actions played no part in causing Thomas’ injuries. See Snead, supra. This is not a case where the evidence is plain, palpable and indisputable so as to warrant granting summary judgment to CSX. See Ellington, supra. Therefore, the judgment of the trial court is reversed and the case remanded for further proceedings consistent with this opinion.

Decided June 30, 1998.

Bennett & Hamilton, Lindsay H. Bennett, Jr., for appellant.

Casey, Gilson & Williams, Andrew B. Goldberger, for appellee.

Judgment reversed.

Beasley, J, and Senior Appellate Judge Harold R. Banke concur.


author: Smith, Judge.

text:
    A98A0734.
    STARNES v. FULTON COUNTY SCHOOL DISTRICT et al.
    (503 SE2d 665)
   Smith, Judge.

This action arises out of the denial of “line of duty” disability benefits to Annie Starnes, an employee of the Fulton County School System. Following the denial of her petition for disability benefits by the Fulton County School Employees Pension Board (“the board”), Starnes brought this action in superior court against the Fulton County School District, the board, and individual board members for breach of contract, denial of due process, and money had and received.

Contending that she was totally and permanently disabled as a result of depression and anxiety caused by teaching in a Fulton County classroom, Starnes applied for a “line of duty” disability pension. To qualify for this pension under the local law governing the Fulton County School Employees Pension Fund, Starnes was required to show that she was totally and permanently disabled and that her disability resulted “immediately and exclusively from emergency exposure in line of duty . . . without the intervention of natural causes.” Ga. L. 1994, pp. 4733-4734. After Starnes submitted her application and was examined by a doctor at the pension board’s request, the board denied Starnes’s application by letter informing Starnes that she was entitled to appeal the decision. Starnes appealed. Following a hearing, in which testimony and documentary evidence were presented bearing on the issue of Starnes’s disability, the board again denied Starnes’s request.

Starnes then filed this action in superior court a year after the hearing and the denial of her request for a disability pension. The trial court granted summary judgment to defendants, and Starnes appeals. We do not reach the merits of Starnes’s appeal, however, because we conclude that Starnes failed to properly seek review of the adverse decision by the pension board, and the trial court should have dismissed her complaint.

Bringing a new, separate action challenging the pension board’s decision was not authorized. Starnes instead was required to seek review via writ of certiorari to superior court. OCGA § 5-4-1 (a) states in pertinent part: “The writ of certiorari shall lie for the correction of errors committed by any inferior judicatory or any person exercising judicial powers.” In South View Cemetery Assn. v. Hailey, 199 Ga. 478 (34 SE2d 863) (1945), the Supreme Court set out basic criteria for determining whether an inferior judicatory exercised judicial or quasi-judicial powers, requiring review by certiorari, as opposed to legislative, executive, or ministerial powers, which cannot be corrected by certiorari: “The chief distinction between a legislative and judicial function is that the former sets up rights or inhibitions, usually general in character; while the latter interprets, applies, and enforces existing law as related to subsequent acts of persons amenable thereto.” Id. at 480 (3).

The Supreme Court also noted that “the basic distinction between an administrative and a judicial act by officers other than judges is that a quasi-judicial action, contrary to an administrative function, is one in which all parties are as a matter of right entitled to notice and to a hearing, with the opportunity afforded to present evidence under judicial forms of procedure; and that no one deprived of such rights is bound by the action taken. [Cits.]” South View, supra at 481 (4). “[T]he test is whether the parties at interest had a right under the law to demand a trial in accordance with judicial procedure.” Id. at 481 (4) (a). See also Mack II, Inc. v. City of Atlanta, 227 Ga. App. 305, 307 (1) (489 SE2d 357) (1997).

The local law governing disability pensions for Fulton County employees, Ga. L. 1994, p. 4706, provides a method by which individuals may apply for disability pensions. Under that law, “[t]he pension board shall require that the applicant for a pension due to permanent and total disability be examined by competent physicians and surgeons. In passing upon the question of permanent and total disability, the pension board may receive and consider the reports and recommendations of such examining medical officers, and the applicant shall have the right to submit medical and other competent evidence on the question of his or her disability and right to be retired. If the pension board determines that the applicant is not totally and permanently disabled, the act of the board shall be final.” Ga. L. 1994, pp. 4725-4726. The board bylaws provide that “[applications for pension shall be acted upon only at public meetings of the board. Any applicant for a pension board may appear before the pension board at its public meeting to be heard as to whether or not a pension should be granted to said applicant. ... In its hearings the board shall not be limited to evidence under oath and delivered in person, but may permit the introduction of affidavits, depositions and documentary evidence of all sorts. The board itself shall be the judge of the weight [and] credibility and effect to give to such evidence and documents.”

A particular administrative body may at times exercise judicial or quasi-judicial functions and at other times exercise administrative, ministerial, or legislative functions. See generally Tamiami Trail Tours v. Ga. Public Svc. Comm., 213 Ga. 418, 428-429 (99 SE2d 225) (1957); South View, supra at 480 (2). In making a determination whether the action of a lower tribunal was judicial in nature, we must “look to the particular function performed.” Mack II, supra at 310 (1). After examining the function performed by the pension board under the facts of this case and applying the test described in South View, supra, we conclude that the pension board acted in a judicial capacity.

Starnes was afforded the right to a hearing “in accordance with judicial procedure.” South View, supra at 481 (4). Under the local law and pension board bylaws she was permitted to submit, at a public hearing, a wide range of evidence including medical evidence, testimony, affidavits, depositions, and “documentary evidence of all sorts.” The board then was required to examine this evidence to determine whether Starnes’s disability met the criteria set out in the local law concerning receipt of a line of duty disability. And this examination was not merely a ministerial act; it required the board to assess Starnes’s contention that she was totally and permanently disabled immediately and exclusively as a result of emergency exposure as an employee, in light of the testimony and medical evidence presented at the hearing. In sum, the board was required to resolve adverse claims. This decision-making process, in turn, required the board to weigh evidence, assess witness credibility, and apply the fact-intensive law governing line of duty pensions to the particular facts surrounding Starnes’s application. Such a process was “ ‘akin to a judicial act.’ ” Mack II, supra at 310 (l). The hearing before the pension board was consequently judicial in nature, and “appeals from such decisions can only be had by writ of certiorari under Code § 19-101 [OCGA § 5-4-1] where no additional right of appeal is provided by law.” (Emphasis supplied.) Wilson v. Latham, 227 Ga. 530, 533 (181 SE2d 830) (1971). Starnes therefore was required to seek review via writ of certiorari under OCGA § 5-4-1 (a). Because she did not, the trial court should have dismissed her complaint.

It is true that the local law governing disability pensions does not provide that review of the board’s denial of disability pensions may be reviewed by writ of certiorari and states that the pension board’s decision that an applicant is not totally and permanently disabled is final. Ga. L. 1994, p. 4726. Similarly, the bylaws of the Fulton County Pension Board provide that “[ajctions of the board shall be final on all questions of fact, supported by evidence, in connection with applications for pension.” But the failure to include in the law express language permitting review by writ of certiorari does not negate or dispense with the clear mandate of OCGA § 5-4-1 (a), which provides that a writ of certiorari shall lie for the correction of certain errors by inferior tribunals. Moreover, finality of the pension board’s decision under the local law and pension board bylaws is a prerequisite to appeal by certiorari. See Jenga v. Deveaux, 193 Ga. App. 436, 437 (1) (388 SE2d 361) (1989).

Once the decision on Starnes’s application for pension became final, Georgia law provided her with an orderly means of seeking review. As discussed above, she was required to seek review through writ of certiorari, and the law provided her with specific guidelines for so appealing. See, e.g., OCGA § 5-4-3. In particular, she was required to file her petition “within 30 days after the final determination of the case in which the error is alleged to have been committed. Applications made after 30 days are not timely and shall be dismissed by the court.” OCGA § 5-4-6 (a). Rather than appeal through the orderly, specific vehicle of certiorari as required by OCGA §§ 5-4-1, 5-4-3, and 5-4-6, however, Starnes waited an entire year after the pension board reached an adverse decision to file a completely new action. This means of review simply was not authorized under the law.

Because Starnes was not authorized to bring a separate action challenging the denial of line of duty disability benefits, and because she failed to petition the trial court for certiorari within 30 days after the board reached its decision, her action must be dismissed. We therefore remand this case to the trial court with direction that the court vacate its judgment and dismiss Starnes’s action.

Decided June 30, 1998

Weinstock & Scavo, Michael Weinstock, Louis R. Cohan, Catherine M. Banich, for appellant.

Sutherland, Asbill & Brennan, Judith A. O’Brien, Rocco E. Testani, Hawkins & Parnell, Frank C. Bedinger III, John T. Ferguson, for appellees.

Case remanded with direction.

Johnson, P. J., and Senior Appellate Judge Harold R. Banke concur.

       The statute addressing the pension fund provides for two other types of “line of duty” pensions, which do not apply in this case. One is for accidents suffered in the line of duty, and one addresses occupational diseases caused by certain poisons or irritants, “which are recognized as a peculiar hazard” of the employee’s job and “which other persons not engaged in such employment do not contract.” Ga. L. 1994, pp. 4733-4734.

       Compare City of Macon v. Herrington, 198 Ga. 576, 590 (3) (32 SE2d 517) (1944), a case in which the decision of the pension fund’s trustees was “ministerial and administrative.” In that case, however, the facts were not disputed, and the ordinance provided clear, specific guidelines concerning the requirements for receiving a pension. The board was not required to weigh evidence in the process of determining whether a pension was authorized.


text:
    A98A0215.
    KURTZ v. THE STATE.
    (504 SE2d 51)
   Smith, Judge.

After a bench trial, Arthur Kurtz was convicted of one count of simple battery. He appeals, raising three enumerations of error.

1. Construed to support the verdict, the evidence at trial showed that Kurtz and the victim were formerly husband and wife. Pursuant to a divorce decree, they shared joint custody of their three children. On January 8, 1996, at approximately 6:30 p.m., Kurtz arrived at his ex-wife’s house to pick up their son for visitation. Kurtz was allowed inside the house and waited in the foyer for his son to get his belongings. Kurtz had his son’s backpack on his shoulder and his son’s “boom box” in his hand.

While standing in the foyer, Kurtz began to argue with his children about the broken cord on their telephone. The children had their own private phone line, and that was the only telephone line Kurtz used to call his children. Kurtz wanted his children to fix the broken cord because he had been disconnected when he tried to talk with them earlier in the week. Kurtz became more and more upset about the broken telephone cord and began yelling.

Eventuálly, Kurtz’s ex-wife entered the foyer area and joined in the argument about the telephone line. After the yelling continued for a few more minutes, she asked Kurtz to leave her home. She repeated her request several more times. When Kurtz continued to ignore her, she touched Kurtz on the arm, attempting to get his attention. About four or five minutes later, Kurtz swung the boom box at her, hitting her in the chin and causing a red mark and subsequent bruising.

Kurtz testified at trial. He admitted that he was discussing the broken telephone cord with his children but denied yelling at them. He also denied intentionally hitting his ex-wife with the boom box. He claimed the boom box accidentally hit the victim’s chin while he tried to regain his balance after she “lunged” at him and “pushed” him toward the door.

All three children testified, corroborating portions of the victim’s testimony. While the children disagreed about minor details, testimony was presented that Kurtz was very upset about the broken telephone cord and was yelling at them and their mother; that their mother asked Kurtz to leave the house several times; that their mother touched Kurtz on the arm; and that several minutes later Kurtz swung the boom box at her. The child who was present during the entire incident testified that her father did not lose his balance or slip before hitting her mother.

Our review of the transcript satisfies us that any rational trier of fact reasonably could have found from the evidence presented at trial proof of the essential elements of simple battery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Hardy v. State, 159 Ga. App. 854, 860 (285 SE2d 547) (1981).

2. Kurtz contends the trial court erred by impermissibly restricting the cross-examination of his ex-wife.

Kurtz’s counsel attempted to cross-examine Kurtz’s ex-wife about various incidents relating to her marriage to and divorce from Kurtz, including previous child custody disputes, her hospitalization for psychiatric problems, and an attempt she allegedly made to kill her son. Contrary to Kurtz’s assertions, we find the trial court gave Kurtz a great deal of latitude in his attempt to present background information showing the extent of the animosity between Kurtz and his ex-wife and the problems this family experienced after the divorce. Although the transcript shows that the trial court sustained one of the State’s objections to defense counsel’s questions pertaining to the victim’s alleged attempt to kill her son, testimony about this incident was later allowed into evidence during cross-examination of one of the children.

Kurtz has made no showing of any other incidents he wished to bring out but could not, or of how he was harmed by the trial court’s rulings limiting further cross-examination of his ex-wife. Because Kurtz has failed to demonstrate both error and harm, this enumeration is without merit. Nichols v. State, 221 Ga. App. 600, 602-603 (4) (473 SE2d 491) (1996).

3. During defense counsel’s cross-examination of one of the children, the child began to cry and had to be excused from the courtroom. The trial judge then chastised both Kurtz and his ex-wife for involving their children in their legal battles. Immediately after making this comment, the trial court stated that she still felt she could make a decision on the facts of the case. Kurtz alleges as error the trial court’s failure to recuse herself after she displayed prejudice, bias, and partiality.

Decided July 1, 1998.

Rubin, Winter, Rapoport & Hall, Joseph M. Winter, Amanda S. Trigg, for appellant.

Barry E. Morgan, Solicitor, for appellee.

Although we certainly do not agree with Kurtz’s contention that the trial court displayed any partiality or bias, we cannot reach the merits of his contention because Kurtz failed to make a motion to recuse the trial court at trial. He therefore has failed to preserve this issue for appellate review. Glean v. State, 268 Ga. 260, 264-265 (2) (e) (486 SE2d 172) (1997).

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

       We note, however, that several recent cases may have misapplied the law with regard to the grounds for disqualification. See, e.g., Bevil v. State, 220 Ga. App. 1, 2-3 (6) (467 SE2d 586) (1996); Johnson v. State, 208 Ga. App. 453, 454 (2) (430 SE2d 821) (1993); Brannen v. Prince, 204 Ga. App. 866, 868 (3) (421 SE2d 76) (1992); Mapp v. State, 204 Ga. App. 647, 649 (4) (420 SE2d 615) (1992). In a future appeal, when the issue of the denial of a recusal motion is properly before this Court, these cases should be re-examined to determine if they did in fact misapply the law and therefore should be overruled or disapproved. Since the adoption of the Code of Judicial Conduct by the Supreme Court in 1974, Canon 3C of that Code has provided “a broader rule of disqualification” than that provided in OCGA § 15-1-8. Stephens v. Stephens, 249 Ga. 700, 701 (2) (292 SE2d 689) (1982). When considering the issue of disqualification, both OCGA § 15-1-8 and Canon 3C should be considered and applied. See generally Hornsby v. Campbell, 267 Ga. 511, 514 (2) (480 SE2d 189) (1997).


text:
    A98A0562.
    SMITH v. TOYS “R” US, INC. et al.
    (504 SE2d 31)
   Beasley, Judge.

After a slip and fall at a Toys “R” Us store two years earlier, Smith sued the store’s corporate owners in negligence for failing to keep the premises and approaches of the store in a safe condition. She challenges the grant of defendants’ motion for summary judgment. The evidence is viewed in favor of the non-movant.

On August 26, 1994, Smith drove to the store where she had shopped numerous times. Midway through the one and one-half hour trip from her workplace, a hard driving rain developed. Although the rain had abated to a sprinkle when Smith arrived at the store around 11:00 a.m., the wind was still blowing, the parking lot and pavement were wet, and one or two puddles of water may have been present. Smith walked through the main entrance into a vestibule where shopping carts were lined up a few feet inside. Carts are brought in from the parking lot the night before and as needed. According to Smith, the doors were in a fixed open position.

Smith was looking at the ground and saw no moisturé when she entered the store. She looked up as she reached for a shopping cart, slipped in what she described as a one-inch deep puddle of water which splashed as she stepped in it, and fell. She wore flat leather-soled shoes. Smith testified that the puddle could not readily be seen because of existing light conditions in combination with the color of the floor. The door mat, according to her, was out of place.

Management personnel testified that the store is routinely swept and mopped at opening and closing, and store areas such as the front are routinely inspected every hour or two. There is maintenance throughout the day by a maintenance employee, and “all management surveys the entire store all through the day.” Two management personnel are on duty at all times. The store does not have a policy that inspection be done at specific times. Although there is some sort of maintenance schedule, no record was presented. There is evidence of a mid-day sweep of the whole front of the floor any time something must be cleaned up.

The store manager testified he had inspected the vestibule when the store opened that morning, which was at 9:30 a.m. According to these witnesses, the entrance doors were not locked in an open position at the time Smith fell but opened and closed automatically when someone entered, and there was a mat at the entrance. The wind blew directly into the building as the doors opened and closed.

Alterman Foods v. Ligon held that “in order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Robinson v. Kroger Co words the second requirement somewhat differently: “that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Summary judgment in this case was expressly based on plaintiff’s failure to satisfy either prong of the Alterman Foods test.

Under Robinson, a slip-and-fall plaintiff’s burden of coming forward with evidence disproving his or her negligence arises only after it has been established or assumed that the defendant had actual or constructive knowledge of the hazard, and the defendant presents evidence that the plaintiff’s injuries were proximately caused either by plaintiff’s voluntary or casual negligence. At the same time, the Supreme Court reiterated in Robinson “that the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.”

1. There is no evidence that Toys “R” Us, or Smith for that matter, had actual knowledge of the puddle of water on which plaintiff slipped and fell. That leaves open the possibility of constructive knowledge.

“‘There are two different classes of (premises liability) cases which may be based on constructive knowledge. The first is that type where liability of the defendant is based on the fact that an employee of the defendant was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard. (Cits.)’ ” Such evidence is absent here.

“ ‘The second type of case is that based on the duty of the defendant to exercise reasonable care in inspecting and keeping the premises in safe condition. (Cits.) To sustain plaintiff’s cause of action in the latter case it is necessary that he prove “a period of time the dangerous condition has been allowed to exist. Without such (proof) it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard.” (Cit.)’ [Cits.] . . . [T]he defendant, as the movant for summary judgment, has the burden ‘to show that, as to its lack of constructive knowledge under either theory, no genuine issue remained.’ [Cit.] . . . “‘A lack of actionable constructive knowledge is normally established in ( . . . inspecting and keeping ... in safe condition) cases by evidence of compliance with reasonable inspection and/or cleaning procedures. (Cits.) . . .” (Cit.)’ [Cit.] Evidence establishing an adherence to customary inspection and cleaning procedures on the specific day in question is required, while proof of the mere existence of such customary procedures is insufficient. [Cit.]”

Construed in a light most favorable to Smith, the evidence would authorize a jury to find there was an unduly heavy accumulation of water due to open entrance doors on a rainy day with a blowing wind, and that by not inspecting the entrance area from the time the store opened at 9:30 a.m. until the patron fell about 11:00 a.m., the proprietor failed to follow reasonable inspection procedures which would have revealed the water on the floor. Particularly considering the amount of water plaintiff says was present, a jury would be authorized to infer that the water had been allowed to collect on the floor over an unreasonable length of time, as customers entered with wet shoes and rainwater blew in. A jury could thus find that defendant had constructive or imputed knowledge of the hazard. The trial court’s grant of summary judgment to the defendant was based on the erroneous conclusion that, as a matter of law, the inspection procedures described by the defendants’ witnesses were reasonable and thus discharged the proprietor’s duty as prescribed in OCGA § 51-3-1.

Gibson v. Consolidated Credit Corp. and subsequent cases hold that store proprietors are not liable to patrons who slip and fall on floors made wet by rain conditions where there has been no unusual accumulation of water and the proprietor has followed reasonable inspection and cleaning procedures. As do Alterman Foods and Robinson, Gibson and the cases following it recognize that the proprietor is not an insurer of its invitees’ safety and the true ground of its liability is its superior knowledge of the hazard. As stated in Gibson, “ ‘[fit is a matter of common knowledge that some water would normally be present at a place where shoppers continually pass in and out during rainy weather.’ ” “ Tt is not the duty of persons in control of such buildings to keep a large force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas. . . .’ ” The previously described circumstances of this case distinguish the Gibson line of cases in that, for one thing, there is no proof of inspection between 9:30 a.m. and 11:00 a.m., when plaintiff fell.

2. With respect to the second prong of Alterman Foods, “ ‘ “the customer must exercise ordinary care for [her] own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to [her] or in the exercise of ordinary care [she] should have learned of it. . . .” ’ [Cit.]”

Ordinary care requires the invitee to “use all senses to discover and avoid hurtful things. [Cit.] ‘“The established standard is whether, taking everything into account, the act is one which the common sense of mankind pronounces want(s) of such prudence as the ordinarily careful person would use in a like situation.” ’ [Cit.]”

Given the evidence, it is a jury question whether Smith failed to exercise ordinary care for her own safety. Her testimony “that [she] was not looking directly at the floor at the time [she] fell because [she] was [reaching for a shopping cart] does not alone show [she] was not exercising ordinary care. [Cit.] ‘Looking continuously, without intermission, for defects in a floor is not required in all circumstances. What is a reasonable lookout depends on all the circumstances at the time and place.’ [Cit.]” Equal knowledge of both parties as to weather conditions does not bar recovery, as would the invitee’s knowledge of the specific hazard which caused a fall. Although it can be said that both parties had constructive knowledge that the weather conditions would produce a wet floor at the store’s entrance, as the evidence now stands defendant but not plaintiff knew that, as of 11:00 a.m., wetness had not been checked since 9:30 a.m. Plaintiff, on the other hand, could assume that the owner/operator was keeping the premises safe.

In this case, the fulfillment of either party’s respective obligations is not settled as a matter of law. Balancing this and the competing rights of one against the other is the task of a factfinder.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.

Decided July 1, 1998.

Sell & Melton, Mitchel P. House, Jr., Robert D. McCullers, for appellant.

Hawkins & Parnell, Warner S. Fox, Wade H. Coleman, Jr., for appellees.

       246 Ga. 620, 623 (272 SE2d 327) (1980).

       268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).

       Id. at 748.

       Id.

        Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 429 (1) (408 SE2d 443) (1991).

       Compare Rodriguez v. Piggly Wiggly Southern, 185 Ga. App. 79 (363 SE2d 291) (1987).

        Mallory, supra at 429-430.

        Maxwell v. Mayor &c. of Savannah, 226 Ga. App. 705, 707 (1) (487 SE2d 478) (1997).

       110 Ga. App. 170 (138 SE2d 77) (1964).

        Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 45 (1) (332 SE2d 304) (1985); Hagin v. Winn-Dixie Stores, 180 Ga. App. 303 (348 SE2d 766) (1986); Chafin v. Winn-Dixie Atlanta, 201 Ga. App. 209 (411 SE2d 64) (1991); Winn-Dixie Atlanta v. Bianco, 204 Ga. App. 292 (418 SE2d 819) (1992); Palermo v. Winn-Dixie Atlanta, 221 Ga. App. 532 (472 SE2d 85) (1996); Camp v. Winn Dixie Stores, 225 Ga. App. 626 (484 SE2d 349) (1997); see Adams v. Winn-Dixie Stores, 192 Ga. App. 892 (386 SE2d 686) (1989). In the first six cases, the evidence was undisputed that defendant had mopped the floor shortly before plaintiff’s fall. In Adams, “wet floor” signs were up and periodic inspections occurred. See also Cook v. Arrington, 183 Ga. App. 384 (358 SE2d 869) (1987) (rain had stopped for some time, store traffic light, no moisture observed).

        Gibson, supra at 173 (2); Robinson, supra at 736, 740, citing Alterman Foods.

       (Emphasis omitted.) Gibson, supra at 175 (2).

       Id. at 174.

       (Emphasis in original.) Piggly Wiggly Southern v. James, 225 Ga. App. 846, 847 (485 SE2d 223) (1997).

        Robinson, supra at 741.

        Chaves v. Kroger, Inc., 213 Ga. App. 348, 350 (444 SE2d 606) (1994); see Robinson, supra.

        Rodriguez, supra at 80; Powell v. Woodridge Condo. Assn., 206 Ga. App. 176 (424 SE2d 855) (1992); but see Key v. J. C. Penney Co., 165 Ga. App. 176 (299 SE2d 895) (1983).

        Robinson, supra at 740-741.


author: Judge Harold R. Banke.

text:
    A98A0609.
    MEALOR v. THE STATE.
    (504 SE2d 29)
   Judge Harold R. Banke.

Olen Grover Mealor appeals his convictions for driving under the influence of alcohol to the extent that he was a less safe driver and driving within three hours of having a blood alcohol level of .10 in violation of OCGA § 40-6-391 (a) (1) and (5). Although the trial court found Mealor guilty of both counts, he sentenced him only for the violation of OCGA § 40-6-391 (a) (1).

State Trooper T. J. Jackson stopped Mealor at an approved roadblock. Trooper Jackson testified that he noticed a strong odor of an alcoholic beverage and asked Mealor to pull to the side of the road and step out of his vehicle. When asked, Mealor admitted he had “three or four drinks.” Also, when Mealor exited his vehicle, Trooper Jackson noticed Mealor was wearing bedroom shoes and was unsteady on his feet. Jackson further testified that Mealor’s eyes were bloodshot and his speech was mumbled. Mealor subsequently failed several field sobriety tests, which included the one-leg stand evaluation, the horizontal gaze nystagmus evaluation, and the alcosensor field sobriety test. At that point, Trooper Jackson determined that Mealor was under the influence of alcohol to the extent he became a less safe driver and placed him under arrest for DUI. The results of an Intoxilyzer 5000 test indicated that Mealor’s blood alcohol content was .144 and .132 grams. Held:

1. Mealor asserts the trial court erred in failing to require the State to lay a proper foundation before introducing evidence of his alco-sensor results. Pretermitting whether the trial court was in error, see Knapp v. State, 229 Ga. App. 175 (493 SE2d 583) (1997), there was sufficient evidence independent of the alco-sensor results to support a finding that Mealor was under the influence of alcohol to the extent he was a less safe driver. Given the totality of the evidence, it is more likely than not that the admission of the alco-sensor results did not affect the verdict. Thus, their admission was not reversible error. Simms v. State, 223 Ga. App. 330, 333 (477 SE2d 628) (1996).

2. In his second enumeration of error, Mealor contends the trial court erred in admitting in evidence Intoxilyzer 5000 certificates of inspection without first requiring the State to lay the proper foundation. In Brown v. State, 268 Ga. 76, 80-81 (485 SE2d 486) (1997), the Supreme Court held that “breath-testing device certificates are records made within the regular course of the business within the meaning of OCGA § 24-3-14 and may, upon the proper foundation being laid, be introduced into evidence under the business record exception to the hearsay rule.” The foundational requirements of OCGA § 24-3-14 (b) are that a witness who is familiar with the method of keeping records testifies to facts which show that the record sought to be admitted was made in the regular course of business at the time of the event or within a reasonable time thereafter. Suarez v. Suarez, 257 Ga. 102, 103-104 (2) (355 SE2d 649) (1987). The witness laying the foundation need not be the custodian of the record. Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185, 186 (3) (450 SE2d 452) (1994).

Here, Trooper Jackson testified that an inspector authorized by the Division of Forensic Sciences performs a quarterly inspection of the Intoxilyzer 5000 machine. He further testified that each certificate recording the inspection was prepared on the date of the test as sworn to by a notary. In addition, the trooper who actually inspected the machine and filled out the certificate testified as to the inspection process and stated that he would not have signed the certificate if he had not followed the inspection certificate procedures. Accordingly, we find this foundation to be proper under the requirements of OCGA § 24-3-14 (b) for the admissibility of a business record.

3. Mealor contends the trial court erred in admitting the results of the Intoxilyzer 5000 because the State failed to lay a proper foundation. He argues that since the certificates of inspection were inadmissible, the results of the Intoxilyzer 5000 were likewise inadmissible. Because of our holding in Division 2, this enumeration is wdthout merit.

4. Lastly, Mealor asserts the trial court, erred in denying his motion for a directed verdict of acquittal for driving under the influence to the extent he was a less safe driver. A trial court’s denial of a motion for a directed verdict of acquittal will not be disturbed unless, after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Crawford v. State, 245 Ga. 89, 90 (1) (263 SE2d 131) (1980). Because we find the evidence of Mealor’s unsteady gait, the odor of alcoholic beverages emanating from him, and the results of his field tests sufficient to meet this standard, the trial court did not err when it denied Mealor’s motion. See Tanner v. State, 225 Ga. App. 702, 703 (484 SE2d 766) (1997).

Decided July 1, 1998.

Thomas L. Burton, Dennis R. Fortin, for appellant. Gerald N. Blaney, Jr., Solicitor, Kelly B. Willis, Assistant Solicitor, for appellee.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.


author: Andrews, Chief Judge.

text:
    A98A0903.
    BROWN v. THE STATE.
    (504 SE2d 35)
   Andrews, Chief Judge.

Rose Mae Brown a/k/a Brenda Rose Brown appeals from a conviction of robbery by force and contributing to the delinquency of a minor. Brown contends on appeal that the evidence was insufficient to support the verdicts. For the reasons which follow, we affirm in part and reverse in part.

The evidence at trial, taken in the light most favorable to the jury’s verdict, Gazaway v. State, 207 Ga. App. 641, 642 (428 SE2d 659) (1993), was that on February 21, 1995, Brown, her husband Louis Brown, her stepdaughter Michelle Quinones, and Michelle Quinones’ 16-year-old nephew, Chris Quinones, were riding around and doing drugs. While riding around, the topic of money came up, and the idea was proposed to rob Brown’s 80-year-old father-in-law, Jim Brown, who was known to keep large sums of cash on his person. Brown called her father-in-law to see if he was there and hung up the phone after he answered. After appellant told the others he was home, Louis Brown dropped off Chris Quinones near the father-in-law’s house. Chris Quinones posed as a motorist needing to call for assistance. Once inside, Chris Quinones ripped the phone out of the wall, pushed Mr. Brown to the floor, stepped on his throat, and demanded the money, about $14,000, which Mr. Brown handed over to the juvenile. Chris Quinones returned to the car and split the cash with Lotus Brown. The group then drove to a motel in Buford, where they rented a room and purchased and used more drugs.

Upon being arrested for robbery by force, Brown gave a statement to an investigator in which she admitted to knowledge of the group’s planned robbery and her participation by placing the call to see if he was home. Brown stated she never had possession of the money, but when she wanted something, she would just ask Louis Brown for it.

1. The evidence was sufficient to support the verdict of robbery by force. “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the [defendant] 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) [(1979)].” Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995). Brown argues that because she did not act in carrying out the robbery or receive any of the money, she did not commit robbery. This is incorrect. This Court in Vick v. State, 211 Ga. App. 735 (440 SE2d 508) (1994), affirmed a conviction for robbery by force, even though the defendant did not perform the robbery, when evidence was offered showing the defendant shared in the proceeds of the robbery and participated in its planning. “[P]resence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Citation and punctuation omitted.) Id. at 736. Testimony by Brown’s co-conspirator, Michelle Quinones, and corroborated in Brown’s own statement, showed she was not only present during the discussion of the robbery, but also actively participated by calling to confirm that Mr. Brown was home. The evidence also showed she benefited from the proceeds of the robbery through her husband getting her drugs when she wished. The evidence was more than sufficient to prove beyond a reasonable doubt that Brown was guilty as a party to the crime of robbery by force. OCGA § 16-2-20.

2. Appellant also contends the State did not submit sufficient evidence to prove beyond a reasonable doubt that she contributed to the delinquency of a minor, Chris Quinones. Specifically, Brown contends the term “knowingly” as used in OCGA § 16-12-1 (b) (4) required that the State prove she knew Chris Quinones was a minor under 17 years of age.

OCGA § 16-12-1 (b) (4) provides that: “A person commits the offense of contributing to the delinquency, unruliness, or deprivation of a minor when such person: . . . [kjnowingly and willfully hires, solicits, engages, contracts with, conspires with, encourages, abets, or directs any minor to commit any felony which encompasses force or violence as an element of the offense or delinquent act which would constitute a felony which encompasses force or violence as an element of the offense if committed by an adult.” (Emphasis supplied.) Pursuant to OCGA § 16-12-1 (a) (3), any individual under the age of 17 years is a minor. At the time of the robbery, Chris Quinones was 16 years of age.

The issue presented is whether Brown’s knowledge that Chris Quinones was under the age of 17 years was an essential element of the crime of contributing to the delinquency of a minor. Although there are no cases addressing this knowledge issue with respect to OCGA § 16-12-1, the Supreme Court recently addressed the issue of whether knowledge of a minor’s age was a scienter requirement under OCGA § 16-12-100 (b) (1) in Phagan v. State, 268 Ga. 272, 277-278 (486 SE2d 876) (1997). OCGA § 16-12-100 (b) (1) makes it unlawful “for any person knowingly to employ, use, persuade, induce, entice, or coerce any minor to engage in or assist any other person to engage in any sexually explicit conduct for the purpose of producing any visual medium depicting such conduct.” (Emphasis supplied.) Under this statute, “minor” is defined as “any person under the age of 18 years.” OCGA § 16-12-100 (a) (1). Focusing on the fact that the statute employs the term “knowingly,” the Supreme Court held that, “OCGA § 16-12-100 . (b) (1) clearly contains a scienter requirement: the accused must knowingly use or induce a minor to engage in sexually explicit conduct in order that a visual medium depicting the conduct may be produced. Compare OCGA § 16-6-3, in which the defendant’s knowledge of the age of the victim is not an essential element of the crime of statutory rape. Tant v. State, 158 Ga. App. 624 (2) (281 SE2d 357) (1981). ‘Where knowledge is made a part of the offense, so that scienter must be proved by the State, . . . the burden is on the State to prove the guilty knowledge.’ Robinson v. State, 6 Ga. App. 696, 703 (65 SE 792) (1909).” Phagan, 268 Ga. at 278. The Supreme Court concluded in Phagan that the State had the burden of proving that the accused knew the minor in that case was under the age of 18 years. Id.

In setting forth the crime of contributing to the delinquency of a minor, OCGA § 16-12-1 (b) (4) also clearly employs the term “knowingly” as a scienter requirement. Accordingly, we conclude the term “knowingly” as used in the statute required the State to prove as an essential element of the offense that Brown knew Chris Quinones was under the age of 17 years.

Chris Quinones did not appear at the trial, so the jury was not able to judge his appearance and demeanor first-hand. The only evidence produced by the State as to the minor’s physical appearance was testimony that he was about six feet tall. Nevertheless, the State produced evidence showing that Brown knew Chris Quinones; that she was related by remarriage to him, and that Brown, Brown’s husband (Louis Brown), Brown’s stepdaughter (Michelle Quinones), and Chris Quinones (nephew of Michelle) had been riding around in a car together all day and into the evening prior to the robbery. Brown’s stepdaughter testified that all four of them had been together on and off for a couple of days and that on the day of the robbery all four of them had been “doing drugs and partying and drinking and stuff.” The stepdaughter, who was living with Brown and her father at the time of the robbery, further testified that she knew Chris Quinones was about 16 years of age at the time. Additional evidence showed that after the robbery, Brown and the other three, including the minor, traveled together to Atlanta and then to Florida.

Decided July 1, 1998.

Leo E. Benton, Jr., for appellant.

Lydia J. Sartain, District Attorney, Leonard C. Parks, Jr., Scott A. Drake, Assistant District Attorneys, for appellee.

The evidence establishes that Brown was related to the minor and that she spent a substantial amount of time around him in which she had the opportunity to know and observe him. The evidence also shows that Brown’s stepdaughter, who lived with Brown and who had the same opportunity as Brown to know and observe the minor, knew that he was under the age of 17 years. Based on this evidence, the jury could conclude beyond a reasonable doubt that Brown knew the minor was under 17 years of age.

Judgment affirmed.

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