text:
    75563.
    NEWMAN v. COLLINS.
    (367 SE2d 866)
   Beasley, Judge.

Newman sued Collins for injuries he received as a result of a collision between Collins’ vehicle and McCorkle’s.

On January 29, 1986, Ms. McCorkle’s automobile required a battery jump start as she was leaving for work before 7:00 a.m. While proceeding down Howard Road in an easterly direction she braked to avoid another vehicle, her car stalled and she was unable to restart it. After several vehicles passed the disabled car, Newman stopped to inquire if he could help. Upon being informed of probable battery trouble, he drove down the road, turned around and pulled his truck in front of Ms. McCorkle’s easterly-headed car, facing it westwardly in a direct line about 4 feet away. The two vehicles were either partly or totally on the east-bound travel lane. About this time occupants of another vehicle who knew Newman were travelling east and stopped to ask if help were needed. Ms. McCorkle declined, and she and Newman stood between the two vehicles for the purpose of attaching the cables for a battery boost. Collins then arrived, also travelling east. He did not see the vehicles until too late, so that although he applied the brakes he crashed into McCorkle’s car, driving it into Newman’s truck and pinning Newman and McCorkle between their vehicles. Both were injured.

In answer to Newman’s complaint alleging Collins’ negligence, Collins denied the material allegations and contended that the cause of Newman’s damages was his own negligence or that of someone other than Collins. A jury trial resulted in a verdict for defendant Collins, and Newman’s motion for new trial was denied. On appeal, Newman enumerates as error instructions to the jury regarding avoidance of the consequences of defendant’s negligence (if any), assumption of the risk by plaintiff, comparative negligence, and the duty of a person to not drive an unsafe vehicle. The primary ground asserted as to each instruction was that it was not supported by or adjusted to the evidence.

1. (a) The court instructed the jury: “the rule in Georgia is that the plaintiff cannot recover if by ordinary care he could have avoided consequences to himself of the defendant’s negligence, if any, which he was aware of or reasonably could have discovered, as is the rule that to voluntarily encounter known danger amounts to a failure to exercise ordinary care for one’s own safety.”

Beside urging the inapplicability of this charge, Newman asserts it was given undue emphasis because it was repetitive of the court’s previous charge that plaintiff could not recover if he could have avoided the consequences of defendant’s negligence.

The Suggested Pattern Jury Instructions for Civil Cases contains a charge on “avoidance of consequences” which includes the following caution: “However, the plaintiff’s duty to exercise ordinary care to avoid the consequences of the defendant’s negligence does not arise until the defendant’s negligence exists, and the plaintiff knew, or in the exercise of ordinary care should have known of such negligence.” This is a correct statement of the law of Georgia. See Western & A. R. Co. v. Ferguson, 113 Ga. 708 (1) (39 SE 306) (1900); Macon &c. R. Co. v. Holmes, 103 Ga. 655, 658 (1) (30 SE 563) (1898); Petroleum Carrier Corp. v. Jones, 127 Ga. App. 676, 682 (3) (194 SE2d 670) (1972).

Assumption of the risk involves plaintiff “voluntarily and unreasonably proceeding to encounter a known danger.” Deere & Co. v. Brooks, 250 Ga. 517, 519 (2) (299 SE2d 704) (1983). Testing a known peril acts as a transition between the concepts of avoidance and assumption of the risk. “One who recklessly tests an observed and clearly obvious peril is guilty of lack of ordinary care,” Brooks v. Douglas, 154 Ga. App. 54, 58 (2) (267 SE2d 495) (1980) [two judges only], and is guilty of such negligence “which will be deemed the proximate cause of his resulting injury, and, in the absence of wilful or wanton misconduct by the defendant, will preclude his recovery.” Laseter v. Clark, 54 Ga. App. 669, 670 (1) (189 SE 265) (1936). On the other hand, plaintiff’s assumption of the risk will bar his action even though there was wilful and wanton misconduct on defendant’s part. Roberts v. King, 102 Ga. App. 518, 520 (1) (116 SE2d 885) (1960).

Taylor v. Morgan, 54 Ga. App. 426 (188 SE 44) (1936), and other cases, appear to blend or merge the two concepts of avoidance and assumption of the risk when they are separate and distinct. “ ‘Assumption of risk in its simplest and primary sense means that the plaintiff has given his express consent to relieve the defendant of an obligation of conduct toward him and to take his chance of injury from a known risk.’ ” Owens-Ill. v. Bryson, 138 Ga. App. 78, 79 (225 SE2d 475) (1976). Also, plaintiff with knowledge of the risk may be regarded as tacitly or impliedly agreeing to take his own chances. Id. p. 79. “ ‘In working out the distinction the courts have arrived at the conclusion that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it.’ ” Roberts v. King, supra, 521 (1). The doctrine of “avoidable consequences” does not rest upon the idea that defendant is relieved of any duty toward plaintiff, but denies recovery for any damages which could have been avoided by reasonable conduct on plaintiff’s part. Osburn v. Pilgrim, 246 Ga. 688, 695 (273 SE2d 118) (1980). Avoidance of the consequences involves the failure to take action to overcome defendant’s negligence after it is actually discovered by plaintiff or might have been discovered by plaintiff’s exercise of ordinary care. Lanier v. Turner, 73 Ga. App. 749, 753 (38 SE2d 55) (1946). “The rule which requires one to avoid the consequences of another’s negligence does not apply until he sees the danger or has reason to apprehend it.” Central R. &c. Co. v. Attaway, 90 Ga. 656, 661 (16 SE 956) (1892). See Griffin v. Campbell, 112 Ga. App. 420 (2) (145 SE2d 659) (1965); Smith v. 670 New Street, 111 Ga. App. 35, 38 (140 SE2d 495) (1965); Economy Gas & Appliance Co. v. Kinslow, 74 Ga. App. 418, 420 (39 SE2d 899) (1946). Contrary to what appears to be the gist of appellant’s argument, the “should have known” aspect of plaintiffs knowledge does not embrace a duty to anticipate that some unspecified member of the general public will or may be negligent.

Newman never had the opportunity to take any action after any negligent act on the part of Collins. He did not see Collins approaching nor were the circumstances such that an ordinarily prudent person would have seen him in time to act. Applying the standard of a reasonable man, avoidance of the consequences of what was happening was not pertinent nor relevant.

However, assumption of the risk of the circumstances existing when he placed himself into the picture was arguably a factor. The jury was authorized to find that by knowingly choosing to attempt to start the car while remaining on the roadway Newman unreasonably assumed the risk incident thereto, which would be a complete bar to recovery. Or it could have found that such action did not invoke a choice of an obviously perilous course of conduct with full appreciation of the danger involved. If the latter had been the jury’s finding, then there would be no basis for precluding recovery. Of course, recovery could still be denied in such a situation, upon application of the comparative negligence rule.

By reiterating the charge on avoidance of the consequences by plaintiff of any negligence on defendant’s part, the trial court could have only confused the jury as to a non-supported theory of the defense. The instruction was not adjusted to the evidence and was harmful, so a new trial is required.

(b) The next charge at issue is: “if there was anything present at the time and place of the alleged injury to the plaintiff which would have caused an ordinarily prudent person to reasonably apprehend the probability of danger to himself in doing an act which he was about to perform, then under the law he was required to take such steps as an ordinarily prudent person would take to ascertain whether such a danger existed and if he failed to do this and was injured and if by taking proper precautions he could have avoided the consequences to any negligence of the defendant which may have existed, the plaintiff in this case would not be entitled to recover.”

This instruction was a substantial paraphrasing of Western & A. R. Co. v. Ferguson, supra at 713. Newman has not argued that it contained inaccurate expressions of the law and we do not address such. Because there was evidence regarding whether Newman should have reasonably apprehended the probability of danger in attempting to jump-start the automobile while on the travelled portion of the road, the instruction was not subject to Newman’s objection, which is that it was not adjusted to the evidence.

(c) The court instructed the jury that plaintiff could not recover if he voluntarily assumed a position of imminent danger where there was a place of safety accessible to him and by reason of assuming a dangerous position he was injured. Whether a dangerous situation existed which plaintiff knowingly chanced was a vital issue in the case, and the charge was adjusted to the evidence. Thus the charge complained of set forth principles pertinent to the theory of the defense and was not error.

2. The charge on comparative negligence, which tracked Smith v. American Oil Co., 77 Ga. App. 463, 493 (2) (49 SE2d 90) (1948), was sustained by the evidence and not subject to the objection lodged against it.

3. The court instructed the jury essentially in the language of OCGA § 40-8-7: “No person shall drive or move on any highway any motor vehicle unless the equipment upon any and every motor vehicle is in good working order and the vehicle is in such safe mechanical condition as not to endanger the driver or other occupant [or] any person upon the highway.” This instruction was given by the trial court while charging on the duties of the plaintiff and immediately preceding the instruction on comparative negligence.

The evidence revealed that Ms. McCorkle might have violated this law by driving her vehicle with a “bad” battery. There was no evidence that Newman was in any way responsible for her actions or had acted contrary to the law’s proscription. Ms. McCorkle’s use of a possibly defective battery did play a part in the case and was a cause of the collision. Nevertheless, not every cause, however remote, can be considered an effective cause of the final result — the actual or legal cause. Atlantic Coast Line R. Co. v. Daniels, 8 Ga. App. 775, 778 (70 SE 203) (1910). See OCGA §§ 51-12-8 and 9; Blakely v. Johnson, 220 Ga. 572, 574 (140 SE2d 857) (1965); Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 157 (1) (256 SE2d 916) (1979). There are intervening acts between driving the alleged unsafe car and the collision. See Union Carbide v. Holton, 136 Ga. App. 726, 729 (1) (222 SE2d 105) (1975). See also Firestone Tire &c. Co. v. Pinyan, 155 Ga. App. 343, 347 (4) (270 SE2d 883) (1980). Thus, even as to Ms. McCorkle an issue exists as to the applicability of the statute to the question of her negligence. But she is not the plaintiff, Newman is. By its location within the charge and by the resulting emphasis, the instruction places a burden upon Newman not warranted by the evidence. The condition of Ms. McCorkle’s car is a non-issue between Newman and Collins. The instruction should not have been given without some indication that it applied only with regard to negligence other than that of plaintiff.

Decided March 17, 1988

Rehearing denied March 30, 1988.

James W. Ellison, for appellant.

Ronald C. Griffeth, Allen Evans, for appellee.

Judgment reversed.

McMurray, P. J., concurs. Sognier, J., concurs in the judgment only.


source: Caselaw Access Project

author: Carley, Judge. Benham, Judge,

license: Public Domain

text:
    75609.
    ADAMS v. THE STATE.
    (367 SE2d 871)
   Carley, Judge.

Appellant was indicted for kidnapping, child molestation, and aggravated child molestation. The jury returned a guilty verdict only as to the crime of aggravated child molestation. Appellant appeals from the judgment of conviction and sentence that was entered by the trial court on the jury’s guilty verdict.

1. The general grounds are raised in several enumerations of error.

There is no requirement that the testimony of the victim of child molestation be corroborated. See Padgett v. State, 175 Ga. App. 818 (334 SE2d 883) (1985). Nevertheless, the testimony of the victim in this case was corroborated in several material respects. From all of the evidence, the jury was authorized to find that appellant had committed an immoral or indecent act to the person of the child. See generally Chapman v. State, 170 Ga. App. 779 (1) (318 SE2d 213) (1984). The evidence would also clearly authorize a finding that appellant had done so with the intent to arouse his sexual desires. See generally Bentley v. State, 179 Ga. App. 287 (1) (346 SE2d 98) (1986). The evidence likewise authorized a finding that the commission of the act of molestation was accomplished by the use of such force as to have resulted in physical injury to the child. See generally Keeler v. State, 181 Ga. App. 208 (1) (351 SE2d 731) (1986). After a review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence produced at trial, proof of appellant’s guilt of aggravated child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). This is true notwithstanding appellant’s acquittal on the two other crimes which allegedly arose out of the incident. See generally Nelson v. State, 181 Ga. App. 455, 456 (2) (352 SE2d 636) (1987).

2. After voir dire but before the jury was sworn, appellant, relying upon Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), moved for disqualification of the jury because of the prosecutor’s use of peremptory challenges to remove blacks from the jury. “This was timely. [Cit.]” Wright v. State, 186 Ga. App. 104 (1) (366 SE2d 420) (1988). See also State v. Sparks, 257 Ga. 97, 98 (355 SE2d 658) (1987). The trial court conducted a hearing. During that hearing, appellant attempted to make a prima facie case pursuant to Batson. The prosecuting attorney urged that appellant had failed to meet his burden under Batson. However, out of an abundance of caution, the prosecuting attorney did offer his racially neutral motivation for the exercise of his peremptory strikes. That explanation was that only those black prospective jurors who knew appellant or knew of him had been removed. After further extensive colloquy with counsel concerning the Batson motion, the trial court held as follows: “The motion will be denied based on the court’s observation of the jury, the makeup of the jury, [and] the responses on voir dire that were made pursuant to questions asked by both sides.” Appellant enumerates as error the denial of his Batson motion.

We note at the outset that Powell v. State, 182 Ga. App. 123 (2) (355 SE2d 72) (1987) is not authority for this court to order the remand of this case to the trial court for a hearing on the issue of whether appellant met his initial burden of making a prima facie case in support of his Batson motion. In Mincey v. State, 257 Ga. 500 (360 SE2d 578) (1987), a case so factually similar to this case that it fits it like a glove, our Supreme Court has construed the applicability of Powell in cases wherein a Batson motion is made. “ ‘All relevant circumstances’ in the [Mincey] case, which Batson holds must be considered, include the facts that the prosecutor used seven of his 10 strikes to remove blacks from the venire; that the state accepted five black jurors prior to exhausting its strikes; that the state utilized five strikes on blacks, three on whites, and the race of two panel members was not noted on the record; and that there were at least three blacks on the jury. In Powell v. State, [supra], cert. denied, the Court of Appeals held that the fact that three blacks were on the jury of 12, was not determinative, and that ‘(t)he question is whether the state exercised any of its strikes for a racially discriminatory reason, for if it did, the rule of Batson was violated.’ That court held that a number of specified circumstances were sufficient to establish a prima facie case of purposeful discrimination in selection of the petit jury, and the case was remanded to the trial court, as the factfinder, for an evidentiary hearing consistent with Batson. We do not read Powell to mean that the factfinder cannot consider the fact of the number of blacks on the jury, along with all other ‘relevant circumstances.’ Rather, we understand it to mean, when read along with that portion of Batson quoted hereinabove, that that fact alone does not automatically outweigh other relevant circumstances which would raise an inference of unlawful discrimination. Our interpretation is bolstered by the recent holding in United States v. Dennis, 804 F2d 1208, 1211 (11th Cir. 1986), cert. denied, involving similar factual circumstances, that ‘(i)t is . . . obvious that the government did not attempt to exclude all blacks, or as many blacks as it could, from the jury. Moreover, the unchallenged presence of two blacks on the jury undercuts any inference of impermissible discrimination that might be argued to arise from the fact that the prosecutor used three of the four peremptory challenges he exercised to strike blacks. ... We thus conclude that all of the relevant facts and circumstances do not raise an inference of purposeful discrimination on the basis of race, and that appellants were not entitled to any inquiry into the prosecutor’s reasons for exercising his peremptory challenges as he did.’ We thus likewise conclude that the trial court did not err in holding that no prima facie case for unlawful discrimination was made here.” (Emphasis in original.) Mincey v. State, supra at 503-504.

In this case, as in Mincey, there appears to be some confusion as to how many strikes the State may have used to remove blacks. However, in Mincey, there was even a dispute as to how many blacks actually served on the jury. In the case at bar, it is clear that 7 out of the 12 jurors were black. However, it would certainly be a mischaracterization of the trial court’s ruling in this case to imply that the number of black jurors was the only factor which was considered by the trial court in its ruling that appellant had failed to show a prima facie case. As noted previously, it was only after extensive colloquy with counsel concerning the Batson motion in this case, that the trial court held: “The motion will be denied based on the Court’s observation of the Jury, the makeup of the jury, [and] the responses on voir dire that were made pursuant to questions asked by both sides.” Thus, as in Mincey, the trial court in this case has made a finding that, based upon the relevant circumstances — which included but were not limited to the number of blacks who actually served as jurors — there was no prima facie case for unlawful racial discrimination and that finding is adequately supported by the record.

Therefore, unlike Powell, this is not a case wherein the record shows that the defendant did meet his initial burden of proving a prima facie case and wherein the State then urged that the number of blacks who actually served on the jury is, standing alone, a factor sufficient automatically to outweigh all of the other circumstances which had raised the initial inference of unlawful discrimination. Powell remanded for the trial court to conduct an evidentiary hearing as to the prosecutor’s reasons for exercising his peremptory challenges under such circumstances as gave rise to an inference of discrimination, because that was an issue which the trial court in that case had never addressed. Powell did not remand for the trial court to conduct another hearing as to whether the defendant had met his initial burden of showing a prima facie case of discrimination, because that was an issue upon which the trial court in Powell had already ruled.

No decision of the Supreme Court supports the proposition that, the trial court having already conducted a hearing on appellant’s Bat-son motion, this case should be remanded for another hearing. Aldridge v. State, 258 Ga. 75 (4) (365 SE2d 111) (1988) makes it clear “that in the future the defendant in Batson type cases has the burden to complete the record with information revealing the racial composition of the panel from which the jury was selected, the racial breakdown of the strikes of both parties, and the racial composition of the resulting jury.” (Emphasis supplied.) Thus, assuming that the instant case were within the ambit of Aldridge, the absence in the present record of the information specified in Aldridge would be a basis for holding that appellant has not met his burden of showing error on the record on appeal, not a basis for remanding for another hearing as to an issue which has already been addressed. In Williams v. State, 258 Ga. 80, 81 (3), fn. 2 (365 SE2d 408) (1988), the Supreme Court did “commend and endorse the procedure followed by the trial court, following its ruling that the defendant had not made a prima facie case of discrimination. . . .” (Emphasis supplied.) However, commending and endorsing a procedure is not the equivalent of mandating that procedure and, of course, what is ultimately dispositive in this case, as it was in Williams, is the initial issue of whether appellant proved a prima facie case, not the subsequent issue of the State’s proof of the nondiscriminatory exercise of its peremptory challenges.

Batson involves a two-step process and this case involves only the first step, which is whether appellant met his burden of proving a prima facie case of discrimination. There is no contention that appellant was denied the opportunity to prove his prima facie case. Compare Wright v. State, supra at 104 (1). If, having once been provided with the opportunity to make his prima facie case, appellant did not then meet his evidentiary burden or he did not perfect the record as to that issue, the responsibility in that regard is his. There is no reason to remand this case for further hearing and another ruling by the trial court because the trial court has already held a sufficient hearing and has made a ruling as to appellant’s failure to make a prima facie case under Batson which is complete and correct according to the analysis of the Supreme Court in Mincey. “Moreover, even if such a prima facie case had been made, a review of the explanations offered by the prosecutor reveals that a race-neutral explanation was given as to all of the potential jurors.” Mincey v. State, supra at 504 (4). Accordingly, the trial court properly denied appellant’s Batson motion and this enumeration of error is without merit.

3. The trial court did not erroneously abridge the right to a thorough and sifting cross-examination when, during the cross-examination of a State’s witness, it informed appellant’s counsel to “go on to something else.” The trial court’s directive came only after appellant’s counsel had, on numerous previous occasions, asked the same question of the witness and had, on each occasion, received the same answer. See generally Fluker v. State, 174 Ga. App. 890, 891 (2) (332 SE2d 34) (1985). Likewise, that the trial court’s directive may have occurred in the presence of the jury was not a ground for the declaration of a mistrial. See Fluker v. State, supra at 891 (2).

4. The trial court conducted a Jackson-Denno hearing and determined that an in-custody statement given by appellant would be admissible into evidence. This ruling is enumerated as error. We have reviewed the transcript of the hearing and find that the trial court correctly held that the statement was admissible into evidence. The State made a prima facie showing of admissibility. “[A] prima facie showing of the admissibility of [an inculpatory statement is] made by evidence of compliance with OCGA § 24-3-50 in addition to evidence showing that [the] defendant [made his inculpatory statement] after having been given his Miranda rights.” Pruitt v. State, 176 Ga. App. 317, 321 (3) (335 SE2d 724) (1985). Appellant offered nothing which conflicted with the State’s prima facie showing.

5. The trial court’s failure to give numerous of appellant’s written requests to charge is enumerated as error. “The charge is to be considered as a whole, and where the charge covers the subject matter of the request, it is not error although not in the exact language of the request. [Cits.]” Stevens v. State, 247 Ga. 698, 704 (8) (278 SE2d 398) (1981). A review of the actual charge given by the trial court shows that it adequately addressed the legal principles which were contained in appellant’s refused requests and, in so doing, the trial court’s charge employed less argumentative language than that which had been used in appellant’s requests. There was no error.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Sognier, Pope and Beasley, JJ., concur. McMurray, P. J., Banke, P. J., and Ben-ham, J., dissent.

Benham, Judge,

dissenting.

Although I concur with Divisions 1, 3, 4, and 5 of the majority opinion, I cannot concur with the holdings in Division 2, so I must dissent to that division and to the judgment.

The essence of the majority’s position is that appellant failed to establish a prima facie case of racial discrimination in the use of peremptory strikes by the State and that, even if he had, the State made a sufficient explanation of its use of peremptory strikes to remove black jurors from the jury. I must disagree with both holdings.

Aldridge v. State, 258 Ga. 75 (4) (365 SE2d 111) (1988), cited by the majority, established the burden a defendant in future Batson cases must bear. The obvious import of the establishment of that standard is that the defendant’s burden had not been clearly established until the day Aldridge was decided. That being so, this Court cannot properly hold that appellant has failed to meet his burden because he did not make the showing required by Aldridge. It is clear from the record that the trial court and the prosecuting attorney had no clearer idea of the standards to be applied in Batson claims than appellant did. The record makes it clear, notwithstanding the trial court’s recitation of the factors considered, that the holding that appellant did not make a prima facie case was based on nothing more than a count of the jury and the trial court’s memory that there was a federal case holding that the presence of any blacks on the jury defeats a Batson claim. This case, therefore, is one in which the trial court, contrary to the Supreme Court’s requirement in Mincey v. State, 257 Ga. 500 (4) (360 SE2d 578) (1987), that more factors be considered than just the number of blacks on the jury, considered only that factor. Although the presence of blacks on the jury as chosen undercuts any inference of impermissible discrimination arising from the use of peremptory strikes to remove blacks from the jury, that presence does not, by itself, destroy the inference. My review of the record leads me to the conclusion that the trial judge in this case made his determination that no prima facie case had been established on the basis of insufficient information, and that the hearing on the issue was insufficiently full and complete to permit an adequate showing. It is for that reason that I would return this case to the trial court for a new hearing on the issue of appellant’s Batson claim.

Second, I cannot agree that the prosecuting attorney in this case provided race-neutral explanations of his use of peremptory strikes that would permit an appellate review of the issue. The prosecuting attorney made the general statement that the blacks who were struck from the jury were those who knew appellant or his family or knew of appellant or his family. I do not believe such a broad-brush approach is adequate. Compare Hillman v. State, 184 Ga. App. 712 (1) (362 SE2d 417) (1987). See also Powell v. State, 182 Ga. App. 123 (3) (355 SE2d 72) (1987).

My position in this case must not be misunderstood as criticism of the trial court’s handling of the Batson claim. This case was tried in February 1987, and guidance for the trial courts on these issues was sparse. It is clear to me from the transcript that the trial court attempted to comply with the U. S. Supreme Court’s mandate, but had not been provided sufficient guidelines for doing so. In the intervening months, the relative burdens and responsibilities have been clarified significantly. It is with confidence, then, that I would remand this case to the trial court for a complete hearing on appellant’s Bat-son claim.

Decided March 18, 1988

Rehearing denied March 30, 1988

Alfred D. Fears, William P. Bartles, Alfred D. Fears, Jr., for appellant.

E. Byron Smith, District Attorney, Tommy K. Floyd, Assistant District Attorney, for appellee.

For the reasons stated, I must dissent to the holdings in Division 2 of the majority opinion and to the judgment.


text:
    75753.
    FIRST FEDERAL SAVINGS BANK OF GEORGIA v. EAGLEWOOD COURT CONDOMINIUM ASSOCIATION, INC.
    (367 SE2d 876)
   Carley, Judge.

Appellant-defendant First Federal Savings Bank of Georgia (First Federal) made loans to Richard Burnette, who used the funds to buy condominium units in the Eaglewood Court development. First Federal held purchase money security deeds for each of Burnette’s units. Burnette subsequently defaulted on his loans from First Federal and on the condominium association assessments which he was obligated to pay to appellee-plaintiff Eaglewood Court Condominium Association, Inc. (Eaglewood). First Federal foreclosed on the property by exercising its power of sale as contained in the security deeds. After First Federal had assumed ownership of the units, Eaglewood sought payment from First Federal of a pro rata share of the defaulted assessments. See OCGA § 44-3-80 (f). First Federal refused to pay and Eaglewood brought this suit against First Federal. Eaglewood not only sought a recovery of a pro rata share of the defaulted assessments, but also sought a recovery as to such various penalties for late payment and attorney’s fees as were provided for in the Declaration of Condominium (Declaration). See OCGA § 44-3-109 (a) and (b). In all, Eaglewood sought an amount of not less than $4,880.17. The parties filed cross-motions for summary judgment. The trial court ordered First Federal to pay $4,168.91, having found that sum to represent the principal amount of assessments, delinquency charges, interest, attorney’s fees, and expenses of litigation allocable to First Federal. First Federal appeals.

It is clear that Eaglewood is authorized to maintain this civil action against First Federal for the recovery of such sums as are allegedly due to it as unpaid assessments. Not only is there no proscription as to Eaglewood’s maintenance of such a civil action, OCGA § 44-3-76 specifically empowers Eaglewood to maintain “an action to recover sums due. . . .” Accordingly, the only issue to be resolved is whether the trial court correctly held that, under the evidence of record, Eaglewood was authorized to recover $4,168.91 as the sum which was due from First Federal.

OCGA § 44-3-80 specifically provides that First Federal, as the foreclosing first mortgagee, “shall not be liable for nor shall the condominium unit be subject to a lien for any assessment under this Code section or under any condominium instrument chargeable to the condominium unit on account of any period prior to the acquisition of title. . . .” OCGA § 44-3-80 (f). Having unqualifiedly provided that a foreclosing mortgagee shall not be liable for nor shall the condominium unit be subject to a lien “for any assessment,” the statute then provides that “the unpaid share of an assessment or assessments shall be deemed to be common expenses collectable from all of the unit owners, including such holder or other person and [its] successors, successors-in-title, and assigns.” (Emphasis supplied.) OCGA § 44-3-80 (f). Thus, while First Federal is clearly not liable nor is its property interest subject to a lien for any assessment, it is obligated to pay a pro rata amount of that “unpaid share” which becomes a part of the common expenses.

The $4,168.91 judgment that was entered against First Federal does not represent merely a pro rata share of the unpaid assessments. That judgment also included a pro rata share of late charges, interest, attorney’s fees, expenses of litigation and fair rental value of the units in question. However, the only basis for recovery by Eaglewood of the additional expenses above enumerated would be as a result of the lien established pursuant to the provisions of OCGA § 44-3-109 (a). Subsection (b) of OCGA § 44-3-109 provides that “[t]o the extent that the condominium instruments provide, the lien for assessments shall also include” the late charge, interest, litigation expenses, and the fair rental value. However, since OCGA § 44-3-80 (f) specifically provides that no lien shall attach to the foreclosed property under the circumstances involved in this case and that the foreclosing mortgagee shall have no liability for an assessment or assessments per se, it must necessarily follow that, pursuant to OCGA § 44-3-80 (f), the only sum which would be “collectable” from First Federal is its pro rata portion of the “unpaid share of [the] assessment or assessments [which became a part of the] common expenses. . . .” To the extent that the trial court entered judgment against First Federal in an amount in excess of its pro rata portion of the unpaid share of the assessment applicable to the foreclosed units, the trial court erred. Eaglewood would not be entitled to recover from First Federal a pro rata share of the elements enumerated in OCGA § 44-3-109 (b) because those elements arise only from the lien which results from the failure to make a timely payment of assessments. First Federal is liable only for a pro rata share of the original assessments. Accordingly, the judgment of the trial court is reversed with direction that a new order, not inconsistent with this opinion, be entered.

Judgment reversed with direction.

Birdsong, C. J., Sognier, Pope, and Beasley, JJ., concur. Deen, P. J., McMurray, P. J., Banke, P. J., and Benham, J., dissent.

Benham, Judge,

dissenting.

While I agree with the first portion of the majority opinion as to Eaglewood’s right to sue First Federal for the sums due, I must dissent from the analysis applied and the conclusion reached in the latter portion of the decision. It is my opinion that the trial court did not err by including in the judgment the pro rata share of late charges, interest, attorney fees, expenses of litigation, and fair rental value of the foreclosed units. Those sums were properly assessed against the units before foreclosure and pursuant to OCGA § 44-3-109 (a) and (b) and the Declaration. I do not agree that First Federal is only liable for its pro rata share of the base assessments due on the property, and not a portion of the other fees. While it is true that under OCGA § 44-3-80 (f), appellant is not solely liable for the whole amount of the assessments chargeable to the property, it is responsible for a pro rata share of any and all assessments due and owing. The proviso in OCGA § 44-3-80 (f) states that “the unpaid share of an assessment or assessments shall be deemed to be common expenses collectable from all of the unit owners, including such holder or other person and his successors, successors-in-title, and assigns.” Under OCGA § 44-3-109 (a) and (b), the items about which appellant complains are categorized as “sums lawfully assessed by the association against any unit owner or condominium unit, whether for the share of the common expenses pertaining to that condominium unit or otherwise,” i.e., assessments. I interpret the statute as meaning that although First Federal’s status as the foreclosing first mortgagee protects it from a lien and singular liability for those items as assessments, it is still liable for them on a pro rata basis, as common expenses. The judgment clearly indicates that the amount awarded was determined on that basis. I would find no error and would affirm the judgment.

I am authorized to state that Presiding Judge Deen, Presiding Judge McMurray, and Presiding Judge Banke join in this dissent.

Decided March 18, 1988

Rehearing denied March 30, 1988

John P. Joiner, for appellant.

John J. Barrow, for appellee.


author: Sognier, Judge. Deen, Presiding Judge,

text:
    75940.
    EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES v. REYNOLDS.
    (367 SE2d 879)
   Sognier, Judge.

Equitable Life Assurance Society of the United States filed an action against Ray A. Reynolds, a former agent, to recover commissions advanced to him on the sale of certain life insurance policies when the premiums thereon were subsequently refunded. Reynolds answered, denying the indebtedness, and both parties moved for summary judgment. Equitable appeals from the trial court’s grant of summary judgment to Reynolds and the denial of its own motion.

1. Appellant contends the trial court erred by granting summary judgment in favor of appellee because repayment of unearned advanced commissions is clearly required by the contract between the parties, and thus appellee was not entitled to judgment as a matter of law. We agree.

It is uncontroverted that during the course of his employment with appellant, appellee signed a contract which provided, inter alia, that he would “be allowed commissions ... on premiums and considerations for insurance policies and annuity contracts secured under this Agreement in accordance with the Schedules of Commissions (issued by The Equitable with notice to the Agent) in force on the date of application for the policy or contract, as such premiums and considerations become due and are paid.” (Emphasis supplied.) In opposition to appellee’s motion, appellant submitted the affidavit of John Brennan, its assistant vice president, whose testimony laid a proper foundation for the admission into evidence of the attached “Schedules of Commissions and Service Fees For Individual Insurance Policies and Annuities Effective January 1, 1975 for 14th Edition Agent Agreements” as that “Schedules of Commissions” referred to in the contract signed by appellee. That document provided, in pertinent part: “If The Equitable or its subsidiary, for any reason, refunds any premium or consideration, including a termination value in the nature of a pro rata part of a premium, any commissions paid to the Agent thereon shall be an indebtedness of the Agent which The Equitable may offset against any claim for compensation under this Agreement. Any such indebtedness not recovered by offset, for any reason, shall be a debt of the Agent, payable on demand.” The language of the contract signed by appellee is plain and unambiguous in calling for the payment of commissions “in accordance with the Schedules of Commissions.” “[N]o construction is required or even permissible when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation.” R. S. Helms v. GST Dev. Co., 135 Ga. App. 845, 848 (219 SE2d 458) (1975). Thus, we do not agree with appellee’s contention that there is no language in the contract making the schedules a part thereof. See generally Seal v. First Bank & Trust Co., 163 Ga. App. 620, 621 (2) (295 SE2d 367) (1982). The commissions were to be paid in accordance with all the provisions in the document entitled “Schedules of Commissions,” and, therefore, to the extent that appellee received advanced commissions, the contract, by reference to the Schedules of Commissions, required him to refund to appellant that portion of the advanced commissions which was unearned, and created a debt owed by appellee to appellant in a corresponding amount.

“ ‘Where motion for summary judgment is made by a defendant, that defendant shoulders the burden of disproving plaintiff’s case, that is, the defendant must affirmatively disprove same by uncontroverted evidence that demands a finding that no genuine issue as to any material fact remains, and the defendant is entitled to a judgment as a matter of law. [Cits.]’ [Cit.]” Gantz v. Justice Mtg. Co., 182 Ga. App. 676, 677 (1) (356 SE2d 732) (1987). By affidavit, Brennan testified that appellant’s records showed appellee was paid $8,727 in such unearned advances, while appellee, in his affidavit, testified that all sums received by him were for services rendered during his employment. Thus, an issue of fact exists as to whether appellee received any advances representing commissions which later proved to be unearned. As appellee has not shown that he is entitled to judgment as a matter of law, it follows that the trial court erred by granting appellee’s motion for summary judgment. See generally Folsom v. Sears, Roebuck & Co., 174 Ga. App. 46, 47 (329 SE2d 217) (1985).

2. Appellant also contends the trial court erred by denying its motion for summary judgment. However, summary judgment in favor of appellant would be proper only if there were no question that appellee actually received the commission advances which, under the contract, are required to be repaid and have not been offset previously. In light of our conclusion in Division 1 that a question of fact exists as to whether appellee received any such advances, the trial court did not err by denying appellant’s motion for summary judgment. See Kroger Co. v. Michaels, 183 Ga. App. 626, 627 (359 SE2d 698) (1987).

Judgment affirmed in part and reversed in part.

Carley, J., con curs. Deen, P. J., concurs specially.

Decided March 18, 1988

Rehearing denied March 30, 1988.

John L. Skelton, Jr., for appellant.

Walter W. Furlong, for appellee.

Deen, Presiding Judge,

concurring specially.

While otherwise concurring fully with the majority opinion, it is appropriate, if not our duty, to note that the last cited case, Kroger Co. v. Michaels, 183 Ga. App. 626 (359 SE2d 698) (1987), is only a physical precedent, because it was adopted by a two-to-one vote. Although it possibly possesses persuasive power, we cannot publicly proffer, or purport to place or present it, or hold it up in a position of binding precedent.


author: Carley, Judge.

text:
    75139.
    COMMERCIAL UNION INSURANCE COMPANY v. BRADLEY COMPANY.
    (367 SE2d 820)
   Carley, Judge.

Although it is now defunct, Regal Trucking Company, Inc. (Regal) previously operated as a motor common carrier. Regal was afforded insurance coverage under a policy which had been issued by appellant-defendant Commercial Union Insurance Company. Under the terms of that policy, liability coverage with limits of $250,000 was provided to Regal in connection with the loss of or damage to any cargo “while loaded for shipment in or on vehicles and in transit anywhere within the limits of the Continental United States or Canada. . . .”

In addition to providing liability coverage to Regal, the policy also contained an “Endorsement for Motor Common Carrier Policies of Insurance for Cargo Liability Under Section 215, Interstate Commerce Act” (ICC Endorsement). Pursuant to the terms of this ICC Endorsement, appellant agreed that, without regard to any condition, provision, stipulation or limitation otherwise contained in the policy, it would pay up to $5,000 to “any shipper or consignee for all loss of or damage to all property belonging to such shipper or consignee, and coming into the possession of [Regal] in connection with [Regal’s] transportation service [under a certificate of public convenience and necessity issued to Regal by the ICC] for which loss or damage [Regal] may be held legally liable. . . .” (Emphasis supplied.) Thus, by this ICC Endorsement, appellant agreed that it would provide up to $5,000 in coverage for lost or damaged cargo directly to those shippers who had employed Regal to transport their goods, which direct coverage to Regal’s shippers was to be supplemental to the liability coverage which appellant had otherwise agreed to afford to Regal. “The ICC endorsement constitutes a supplemental insurance agreement at law, by which [appellant as] the insurer is obligated to pay the shippers of goods ... for any loss of or damage to property that results from the transportation of the shipped goods by [Regal as] the insured cargo carrier, up to a specified maximum amount.” Ford Motor Co. v. Transport Indem. Co., 41 BR 433, 436 (E.D. Mich. 1984).

In the course of its business, Regal undertook the transportation of shipments of cargo for appellee-plaintiff W. C. Bradley Company. The major portion of one such shipment, which originated in Georgia, was stolen in Alabama, while en route to various points in other states. Appellee, having unsuccessfully sought reimbursement from Regal for the loss of the stolen merchandise, eventually brought suit to recover for that loss. Appellee filed its suit to recover for its lost merchandise against Maranda Motor Freight Company, Inc. (Maranda), based upon Maranda’s alleged capacity as Regal’s successor in interest. Appellee obtained a default judgment against Maranda but the bankrupt Maranda was unable to satisfy that judgment. Appellee then filed this direct action against appellant, based upon appellant’s capacity as Regal’s insurer. Appellant filed a timely answer, wherein it asserted various defenses to being subjected, in its capacity as Regal’s insurer, to appellee’s direct action. After a brief period of discovery, appellant filed a motion for partial summary judgment. In its motion, appellant sought, in effect a ruling that appellee had no right to bring a direct action against it as to the liability coverage of the Regal policy but could, as a matter of law, bring a direct action on the policy only as to the $5,000 in supplemental coverage that was afforded under the ICC Endorsement. The trial court denied appellant’s motion, but certified its order for immediate review.

This court granted appellant’s application for an interlocutory appeal so that we might address the issue of appellee’s entitlement, in its capacity as the shipper of goods lost while in Regal’s possession, to bring this direct action against appellant, in its capacity as Regal’s insurer. As noted previously, there are two coverages under the Regal policy involved in the present case, to wit: coverage to Regal under the liability provisions of the policy; and, coverage to appellee under the provisions of the ICC Endorsement. Although there are exceptions, the general rule is that a party who alleges he has been damaged is not entitled to bring a direct action against the liability insurer of the party who allegedly caused the damage. See generally Seaboard Coast Line R. Co. v. Freight Delivery Svc., 133 Ga. App. 92, 95 (3) (210 SE2d 42) (1974). However, because the ICC Endorsement in the Regal policy provides supplemental coverage from appellant directly to a shipper of goods who had employed Regal, coverage under the ICC Endorsement would not fall within the general rule as to liability coverage. Accordingly, it is undisputed that appellee would be entitled to predicate this direct action against appellant upon the $5,000 in supplemental coverage afforded under that ICC Endorsement. The question to be resolved is whether appellee can predicate this direct action against appellant only upon the ICC Endorsement. Appellant urges that its motion for summary judgment eliminated any possible exception upon which appellee could predicate its entitlement to pursue this direct action against appellant based upon the liability coverage of the Regal policy. Thus, according to appellant, it has shown that appellant’s recovery in the present direct action can only be based upon the coverage which is afforded under the ICC Endorsement. Accordingly, we must decide whether the evidence, when construed as it must be on summary judgment, would show that appellee has no entitlement to seek a direct recovery from appellant based upon the liability coverage of the Regal policy.

1. Although OCGA § 46-7-12 authorizes a shipper, such as appellee, to bring a direct action against the insurer who provides liability coverage to a motor common carrier, that statute does not apply to a cause of action which arises out of interstate commerce. See generally Atlanta-Ashville Motor Express v. Superior Garment Mfg. Co., 82 Ga. App. 812 (3) (62 SE2d 376) (1950); American Fid. & Cas. Co. v. Thompson, 74 Ga. App. 189 (39 SE2d 443) (1946). The undisputed evidence in this case shows that the loss of appellee’s merchandise occurred in interstate commerce. Thus, OCGA § 46-7-12 cannot serve as the basis for a direct action against appellant by appellee based upon the liability coverage of the Regal policy. Seawheels, Inc. v. Bankers &c. Ins. Co., 175 Ga. App. 528 (333 SE2d 650) (1985) is inapposite because it did not involve a suit which was brought on a cause of action arising out of interstate commerce, but a suit which was brought on a cause of action arising out of a vehicular collision which occurred within this State.

2. As a judgment creditor of Regal, appellee would, however, be authorized to bring a direct action against appellant in appellant’s capacity as Regal’s liability insurer. See generally Smith v. Government &c. Ins. Co., 179 Ga. App. 654 (1) (347 SE2d 245) (1986). With regard to this theory of direct recovery, appellant does not contend that appellee, as the holder of a judgment against Maranda, is not a judgment creditor of Regal. Instead, appellant merely asserts that, if appellee is judgment creditor, appellee must stand in the shoes of Regal and that the failure of Regal to comply with its obligations under the policy precludes appellee from bringing this direct action as to the liability coverage. “One who obtains a judgment against the insured and then seeks to enforce it against the insurer occupies a like status [to the insured]; he derives his rights under the policy through the insured, . . . and he is entitled to recover under the policy only if it appears that all conditions precedent have been complied with.” Wolverine Ins. Co. v. Sorrough, 122 Ga. App. 556, 557-558 (1b) (177 SE2d 819) (1970).

The evidence of record does not show whether or not Regal had satisfied all the conditions precedent to appellant’s contractual obligation to pay the default judgment that appellee has secured for the stolen cargo. However, the burden was clearly upon appellant, as the movant for summary judgment, to show that Regal, as its insured, had not satisfied the contractual conditions precedent to indemnification under the liability coverage of the policy. Because appellant did not meet this evidentiary burden as the movant for summary judgment, the burden never shifted to appellee, as the respondent, to produce any evidence showing that the conditions precedent to indemnification had been satisfied by Regal. It follows that a genuine issue of material fact remains as to Regal’s compliance with any applicable provision of the policy.

Appellant also asserts that appellee did not satisfy the conditions precedent to a recovery in the policy because this suit was not filed against it within the twelve-month period of limitation provided in the policy. There is considerable doubt whether this provision would apply to third-party claims based upon the liability coverage of a policy and is not limited in applicability merely to first-party claims on the casualty coverage of the policy. However, even assuming that the twelve-month contractual period of limitation would otherwise be applicable to appellee’s third-party claim on the liability coverage of the Regal policy, it is clear that that provision has been satisfied in this case. Appellant filed this suit within twelve months of securing its default judgment against Maranda. Thus, appellee clearly filed this suit within twelve months of the date that it first had a claim against appellant on the Regal policy, that being the day that it became a judgment creditor of appellant’s purported insured.

Accordingly, appellant has not shown that appellee’s direct recovery will necessarily be limited to the $5,000 in supplemental coverage under the ICC Endorsement, and the trial court correctly denied appellant’s motion for partial summary judgment.

3. Appellee subpoenaed certain of appellant’s documents for production at trial. Appellant moved to quash the subpoena. The trial court’s denial of appellant’s motion to quash is enumerated as error. However, our review of the record on appeal shows no basis for holding that the trial court erred in denying appellant’s motion.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.

Decided March 8, 1988

Rehearing denied March 31, 1988.

John P. Reale, for appellant.

G. Terrell Davis, Brian P. Turcott, for appellee.


author: Benham, Judge.

text:
    75150.
    In re BOOKER.
    (367 SE2d 850)
   Benham, Judge.

By means of an order filed December 9, 1986, the trial court adjudged M. V. Booker, an attorney, to be in wilful contempt of court. On March 18, 1987, the trial court denied Booker’s motion to set aside the judgment, as well as her motion to recuse the trial judge. On April 6, 1987, Booker then filed with this court an application for review of the December order holding her in contempt. The application for review was dismissed because an order finding one in contempt of court is a subject for direct appeal. OCGA § 5-6-34 (a) (2); Ramsey v. Ramsey, 231 Ga. 334 (1) (201 SE2d 429) (1973). On April 10, 1987, the day her application for leave to appeal was dismissed, Booker filed a notice of appeal “from the order of court rendered March 16, 1987, . . . holding her in contempt of court and denying her Motion to Set Aside Judgment and Motion to Recuse.”

The orders of March 16, 1987, referenced in Booker’s notice of appeal, were filed March 18, 1987, and deny Booker’s motion to recuse and motion to set aside the judgment of contempt. The appeal from the denial of a motion to set aside a judgment requires an application for discretionary review. OCGA § 5-6-35 (a) (8). The appeal from an order denying a motion to recuse requires an application for interlocutory review. See Isaacs v. State, 257 Ga. 126 (355 SE2d 644) (1987). Booker followed neither procedure with regard to the orders of which she now seeks review, and accordingly her appeal with regard to those rulings must be dismissed because noncompliance with those procedures leaves this court without jurisdiction to consider an appeal. Echols v. State, 163 Ga. App. 905 (296 SE2d 366) (1982); Hogan v. Taylor County Bd. of Education, 157 Ga. App. 680 (278 SE2d 106) (1981). The order holding Booker in contempt, from which a direct appeal may be taken (OCGA § 5-6-34 (a) (2)), was filed December 9, 1986. Booker’s notice of appeal, filed April 10, 1987, was untimely, and therefore that portion of the appeal must also be dismissed. OCGA § 5-6-38 (a); Quarterman v. Quarterman, 170 Ga. App. 376 (1) (317 SE2d 206) (1984).

Appeal dismissed.

Banke, P. J., and Carley, J., concur.

Decided March 14, 1988

Rehearing denied March 31, 1988

M. V. Booker, pro se.

Dennis C. Sanders, District Attorney, for appellee.


author: Banke, Presiding Judge. Benham, Judge,

text:
    75159.
    MORROW v. STATE OF GEORGIA.
    (367 SE2d 854)
   Banke, Presiding Judge.

Morrow appeals the grant of the state’s motion for summary judgment in this forfeiture proceeding brought pursuant to OCGA § 16-13-49, to condemn his interest in a 1982 Honda automobile.

On January 17, 1986, the appellant was arrested and charged with possession of cocaine with intent to distribute. It was alleged in the forfeiture petition that on two occasions prior to his arrest, the appellant had used the 1982 Honda automobile, which was registered in his name, to transport cocaine from his home in Polk County, Tennessee, to Fannin County, Georgia, where, on both occasions, he had sold the cocaine to an undercover agent employed by the Georgia Bureau of Investigation. At the time of his arrest, the appellant was involved in a third such transaction, but on that occasion he was driving a borrowed vehicle.

The state alleged that on January 23, 1986, the Honda automobile was seized from the appellant’s residence in Tennessee by Tennessee authorities, during their execution of a Tennessee search warrant obtained on the basis of information provided by the GBI. The car was subsequently held by the Tennessee authorities in Ducktown, Tennessee, until an investigator from the Fannin County, Georgia, Sheriff’s Office, acting at the direction of the Fannin County District Attorney but without benefit of judicial process, traveled to Tennessee and obtained possession of it from the Tennessee authorities. The investigator then transported the vehicle to Georgia, where he delivered it into the custody and possession of the Fannin County Sheriff. The state subsequently filed its petition for condemnation and forfeiture of the automobile, alleging that the vehicle had been used to facilitate the transportation of cocaine in violation of the Georgia Controlled Substances Act. In his answer, the appellant asserted that the vehicle has been seized unlawfully, without his permission and without legal process. Held:

OCGA § 16-13-49 (formerly Code Ann. § 79A-828, enacted by Ga. L. 1974, p. 221, § 1) created a special statutory in rem procedure whereby a vehicle used to facilitate the transportation of controlled substances in violation of the Georgia Controlled Substances Act could be seized and condemned by the state. It has been held that in order to effect a valid forfeiture pursuant to this Code section, the detailed statutory scheme must be strictly construed and strictly adhered to. See Lang v. State, 168 Ga. App. 693, 695 (310 SE2d 276) (1983); Hill v. State, 178 Ga. App. 563 (2) (343 SE2d 776) (1986).

The statute specifies that a seizure may be effected by “any law enforcement officer of this state or political subdivision thereof . . . upon process issued by any court having jurisdiction over the property.” OCGA § 16-13-49 (b). (Emphasis supplied.) In the present case, it is undisputed that the Fannin County investigator did not take possession of the vehicle pursuant to judicial process. Rather, he simply took the vehicle from the custody of the Tennessee authorities, who had allegedly seized the vehicle pursuant to a search warrant. Clearly, no process was ever issued by any court purporting to authorize either the Fannin County District Attorney or the Fannin County Sheriff to assume possession of the vehicle.

While we recognize that the statute allows for the seizure of property without benefit of judicial process under certain specified circumstances (see OCGA § 16-13-49 (b) (1) through (4)), we reject the argument advanced by the state during the proceedings below that two such statutory exceptions were applicable in this case — specifically, the exception for seizures “incident to an arrest or a search under a search warrant” (OCGA § 16-13-49 (b) (1)) and the exception for seizures based on “probable cause to believe that the property was used or is intended to be used in violation of [the GCSA].” OCGA § 16-13-49 (b) (4). Reliance on the search warrant exception is misplaced both because the Georgia officials did not seize the vehicle under the authority of the Tennessee warrant and also because there was no evidence to support the allegation that the seizure of the vehicle was authorized by the Tennessee warrant. Reliance on the “probable cause” exception is also misplaced, as that provision clearly does not purport to authorize Georgia law enforcement officers to seize property located outside of the state, nor, in any event, would such authorization be of any legal effect.

The burden was on the state to prove that the seizure was authorized, both pursuant to its status as a condemnor and pursuant to its status as movant on motion for summary judgment. See generally Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973). Since the state has failed to establish as a matter of law the existence of a valid basis for the seizure, it follows that the trial court erred in granting its motion for summary judgment.

Judgment reversed.

Birdsong, C. J., McMurray, P. J., Carley, Sognier, and Beasley, JJ., concur. Deen, P. J., Pope and Benham, JJ., dissent.

Decided March 15, 1988

Rehearing denied March 31, 1988

William L. Reilly, for appellant.

Roger G. Queen, District Attorney, for appellee.

Benham, Judge,

dissenting.

In the present case, Georgia authorities received the property in question from Tennessee authorities who were in custody of the property under color of law. Insofar as the record of this case shows, the Tennessee authorities had lawful possession of the vehicle and were empowered to deliver it into the custody of Georgia authorities. Appellant has made no contrary showing and I am aware of no authority, and the majority has cited no authority, which would forbid such a transaction. The Code section authorizing seizure of vehicles used to transport drugs, OCGA § 16-13-49, does not by its terms forbid the arrangement made in this case.

Even if it be conceded that the search warrant exception to the requirement of process for seizure of vehicles under the Code section is inapplicable, I cannot agree with the majority’s off-handed rejection of the probable cause exception. It is true that the statute does not and legally cannot authorize extraterritorial seizures by Georgia law enforcement officers, but it does not condemn cooperation between states. Here, the record shows that Tennessee authorities, acting under color of law, delivered to a Georgia law enforcement officer a vehicle which had been used in drug trafficking in Georgia, and that the Georgia officer drove the car back to Georgia, into the circuit in which the car had been criminally employed, and effected there a seizure of the car. Though the majority focuses on the absence from the statute of specific authority for every particular situation which might arise, I focus instead on the fact that the statute does not forbid what was done in this case and on the need to interdict the drug traffic in which appellant was clearly involved in Georgia.

If the seizure in Tennessee was illegal, appellant must seek his remedy there. In this case, however, he has not demonstrated illegality in the State’s seizure of his vehicle or error in the trial court’s grant of summary judgment to the State. For that reason, I must dissent from the majority’s judgment of reversal. I would affirm.

I am authorized to state that Presiding Judge Deen and Judge Pope join in this dissent.


text:
    75231.
    FIRST CAPITAL INSTITUTIONAL REAL ESTATE, LTD. — 1 v. PENNINGTON et al.
    (368 SE2d 165)
   Carley, Judge.

After appellees vacated the premises which they had previously leased from appellant, appellant filed suit seeking rentals which had accrued under the terms of the lease, but which had not been paid. The lease contained a provision requiring the payment of double rent in the event that the appellees remained in possession of the premises beyond the original lease period without entering into a new lease. Appellees retained possession beyond the original lease period, but during their extended possession of the property failed to pay the increased rent called for in the lease. On cross-motions for summary judgment, the trial court held the double-rent provision to be a penalty, and entered summary judgment for appellees. Appellant appeals from the trial court’s judgment entered on the motions for summary judgment.

The rationale of our holding in Fulton County v. Atlanta Envelope Co., 90 Ga. App. 623 (83 SE2d 866) (1954) controls the present case. As in Atlanta Envelope Co., the plaintiff here does not seek damages as a result of the breach of the contract. Rather, the plaintiffs in both cases simply alleged that, under the plain and express terms of the contract, the lessee was obligated to pay a specified sum as rental during the applicable period. As this court stated in Atlanta Envelope Co., “[t]he distinction between [Miazza v. Western Union Telegraph Co., 50 Ga. App. 521 (178 SE 764) (1934) and Dart v. Southwestern &c. Assn., 99 Ga. 794 (27 SE 171) (1896)] and the instant case is that while, in the two cases cited and in the instant case, breaches of contract are involved, in the cited cases damages were sought to be recovered for the breach of the contract, while in the instant case the action is for the enforcement of the contract according to its terms.” (Emphasis supplied.) Fulton County v. Atlanta Envelope Co., supra, 630.

In the absence of a violation of public policy or law, parties to contracts are free to contract on whatever terms they choose. “A contract cannot be said to be contrary to public policy unless the General Assembly has declared it to be so, or unléss the consideration of the contract is entered into for the purpose of effecting an illegal or immoral agreement or doing something which is in violation of law. [Cits.]” Hall v. Gardens Svcs., 174 Ga. App. 856, 857 (332 SE2d 3) (1985). In this case, the contract cannot be said to be contrary to public policy.

Any attempt to characterize the double rent provision as a penalty, based upon the fact that the terms of the lease contract provided that if the lessee should hold over and thereby become liable for the increased rental during the period of continued occupancy, the lessees would become tenants at sufferance, is unfounded. In Tedford v. Roswell Village, 173 Ga. App. 780, 781 (328 SE2d 403) (1985), this court approved a jury verdict in favor of a landlord for “increased rental authorized by the lease” against a tenant who was denominated as a tenant at sufferance during the period of “increased rental.”

Quite simply, this is not an action wherein the issue is whether the amount sought constitutes “liquidated damages” or a “penalty,” but rather it is a suit for enforcement of the contract according to its terms. The trial court erred in denying appellant’s motion for summary judgment. Accordingly, we reverse.

Judgment reversed.

Birdsong, C. J., McMurray, P. J., Sognier and Beasley, JJ., concur. Been, P. J., Banke, P. J., Pope and Ben-ham, JJ., concur in part and dissent in part.

Benham, Judge,

concurring in judgment only in part and dissenting in part.

Because I believe the double-rent provision in the lease involved in this case was as a matter of law a penalty and, therefore, unenforceable, I dissent to the majority’s judgment of reversal insofar as it holds the provision to be enforceable. Insofar as the majority’s holding results in a reversal of the grant of summary judgment to appellees on the amount of rent due, I concur in the judgment of reversal only.

The majority’s reliance on Fulton County v. Atlanta Envelope Co., 90 Ga. App. 623 (83 SE2d 866) (1954), requires that certain salient differences between the contract in that case and the lease in this case be ignored. There, the contract provided that the county could use the plaintiff’s property for a specified period of time free of charge, and that if the county used the property for a longer period of time, rent in an amount certain would be due. Significantly, there was no provision that the term of the contract would expire at a certain time or that the county agreed to vacate the plaintiff’s property as of a particular date. The lease involved in the present case, on the other hand, contains a provision terminating the lease on a certain date, and another one obligating the lessee to surrender the premises by that date. The most important difference between the cases is that the county’s act of remaining in possession was not a breach of any clause of the contract. Appellees, on the other hand, obligated themselves in the lease to vacate the premises by the end of the term. The lease then provided consequences of that breach: classification as a tenant at sufferance and double rent.

“A tenancy at sufferance exists where a wrong-doer is in possession without the consent of the landlord, but as a result of his laches or neglect. [Cits.]” Thrift v. Schurr, 52 Ga. App. 314 (2) (183 SE 195) (1935). The denomination of the tenant as a tenant at sufferance is inconsistent with appellant’s position that the suit here is merely for the enforcement of the lease. The majority’s reliance on Tedford v. Roswell Village, 173 Ga. App. 780 (328 SE2d 403) (1985), ignores two factors. One is that the issue of whether the provision for increased rental was an unenforceable penalty was not squarely raised on appeal. The second factor is that the appellant in that case did not raise the issue because it found the increased rental to be less onerous than the other damages sought in that case. While we accurately reported the facts in that case, we were not called upon to decide all the possible issues arising therein, and in keeping with this court’s long-standing policy against deciding issues not before it, we did not.

Absent a public policy or law, parties to contracts are free to contract on whatever terms they choose. Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363 (203 SE2d 587) (1973). Penalties, however, are against such a public policy, notwithstanding the implication to the contrary in the majority opinion. “Agreements to pay fixed sums as damages for breaches of contracts, where the amount plainly has no reasonable relation to any probable actual damage which may follow a breach, will not be enforced for the agreed amount as liquidated damages, but will be construed as mere unenforceable provisions for penalties. [Cits.]” Miazza v. Western Union Telegraph Co., 50 Ga. App. 521 (1) (178 SE 764) (1934). “Where a designated sum is inserted into a contract for the purpose of deterring one or both of the parties from breaching it, it is [a] penalty.” Florence Wagon Works v. Salmon, 8 Ga. App. 197 (2) (68 SE 866) (1910). It is clear that the double rent provision is a penalty for holding over past the term of the lease. As such, it is unenforceable. I would, therefore, affirm the trial court’s holding that the double-rent provision in the lease cannot be enforced.

There is one point, however, on which I can concur in at least the judgment of the majority: the issue of damages.

Appellees’ motion for summary judgment, the grant of which is enumerated as error, went further than merely seeking a declaration that the double refit provision was unenforceable. Appellees also sought a ruling by the trial court that the amount of rent they tendered was sufficient. “A tenant at sufferance is liable for the reasonable rental value of the premises, irrespective of the amount contracted to be paid during a previous term. [Cit.]” Jefferson v. Kennedy, 41 Ga. App. 672 (2) (154 SE 378) (1930). The record of this case does not contain evidence which would permit the trial court to establish the reasonable rental value, so the grant of summary judgment must be reversed to the extent that it purports to establish the amount of the damages for which appellees are liable.

For the reasons stated above, I dissent to the majority’s opinion insofar as it reverses the trial court’s holding that the double-rent provision was a penalty, and I concur in the judgment of reversal insofar as it effects a reversal of the portion of the judgment establishing the amount of rent due to appellant.

I am authorized to state that Presiding Judge Deen, Presiding Judge Banke, and Judge Pope join in this opinion.

Decided March 18, 1988

Rehearing denied March 31, 1988

J. Patrick O’Brien, William M. Coolidge III, for appellant.

Douglas L. Cronkright, for appellees.


author: Deen, Presiding Judge. Pope, Judge,

text:
    75265.
    CONSOLIDATED MANAGEMENT SERVICES, INC. et al. v. HALLIGAN et al.
    (368 SE2d 148)
   Deen, Presiding Judge.

Plaintiffs Ray and Joan Guthrie were the sole owners of plaintiff Consolidated Management Services, Inc. The Guthries retained the defendant accounting firm to provide tax planning and to prepare returns for their individual income taxes for tax years 1977 through 1979 and the corporate return for fiscal year 1979. In April of 1984 the Internal Revenue Service notified the Guthries that an examination report showed underpayment of their individual income taxes for years 1978 and 1979 due to errors in reporting their taxable income. Ultimately, Ray Guthrie was indicted by the federal grand jury for the Middle District of Florida on two counts of fraudulent tax evasion for wilfully understating income from business on the joint individual returns filed by the Guthries for 1978 and 1979. In the meantime, plaintiffs filed this lawsuit alleging professional negligence against defendant accounting firm and its individual partners. Defendant obtained partial summary judgments on the ground some of plaintiffs’ prayers for relief were barred by the applicable statute of limitation. After Ray Guthrie was tried and found guilty on both counts of the indictment, the various defendants moved for summary judgment on all remaining claims on the ground that plaintiffs were precluded from recovering from defendants by reason of Ray Guthrie’s conviction for tax fraud. Summary judgment was granted to defendants, and plaintiffs appeal.

1. Appellants first contend that the trial court erred in granting partial summary judgment on the basis of the statute of limitations for all acts prior to the four years before the filing of the complaint, because they filed their complaint within four years after they first discovered their injury and its causal connection to appellees’ negligence.

Appellants are alleging negligence on the part of appellees, which purports to be a breach of duty in the accountant-client relationship. The evidence showed that appellees were employed to prepare individual tax returns for the years 1977, 1978, and 1979, and a corporate return for 1979. Appellants filed suit against appellees on March 13, 1984. The court below found that appellees were not liable for acts of negligence occurring prior to March 12, 1980, because all such claims were barred by the statute of limitations; and that they were not liable for acts of negligence occurring after June 30, 1980, the date of the dissolution of the accounting partnership.

A breach of duty of professional competence falls within the four-year statute of limitation as set forth in OCGA § 9-3-25. Riddle v. Driebe, 153 Ga. App. 276, 279 (265 SE2d 92) (1980). Allegations of accountant malpractice are clearly analogous to charges of attorney malpractice where issues of negligence or unskillfulness are raised.

Appellants seek to have the statute of limitations tolled in the same manner as provided under OCGA § 9-3-72, “Foreign objects left in body,” which permits a patient to bring an action against a physician within one year after discovery of a foreign object which was negligently left in his body. Appellants also rely on Lumbermen’s Mut. Cas. Co. v. Pattillo Constr. Co., 254 Ga. 461, 465 (330 SE2d 344) (1985), which applies to the “discovery rule” and holds that “a cause of action does not accrue until the injured party becomes aware, or in the exercise of reasonable diligence should have become aware, of his injury or damage.” The court goes on to hold that the discovery rule is applicable to OCGA § 9-3-30 and § 9-3-33, which apply to damage to realty and injuries to the person, respectively. It does not apply to the type of injury contemplated in OCGA § 9-3-25, “breach of certain contracts; breach of implied promise.” In a malpractice action for damages against an attorney, the statute of limitations runs from “the date of the breach of the duty and not from the time when the extent of the resulting injury is ascertained nor from the date of the client’s discovery of the error.” Peppers v. Siefferman, 166 Ga. App. 389 (304 SE2d 511) (1983). See also Jankowski v. Taylor, Bishop & Lee, 154 Ga. App. 752 (269 SE2d 871) (1980), affirmed 246 Ga. 804 (273 SE2d 16) (1980). This same rule applies in accountant malpractice cases.

2. After partial summary judgment was granted, the issue of the liability of appellees Halligan, Meehan, Shuman and the accounting partnership for appellee Meehan’s negligence between March 12, 1980, and June 30, 1980, remained in the case as an issue for trial. Appellees again moved for summary judgment, relying exclusively upon Ray Guthrie’s criminal conviction in federal court for tax fraud in the transactions which form the basis for his complaint. Appellants objected to the introduction of Guthrie’s conviction record into evidence.

“ ‘The rule supported by the great weight of authority is to the effect that a judgment of conviction or acquittal rendered in a criminal prosecution cannot be given in evidence in a purely civil action, to establish the truth of the facts on which it was rendered.’ [Cits.].” Pierce v. Pierce, 241 Ga. 96, 100 (243 SE2d 46) (1978). “The general rule in this state is that the criminal conviction is no bar to a subsequent civil action arising from the same occurrence and is not competent evidence in such civil action. [Cits.]” Keating v. Dept. of Natural Resources, 140 Ga. App. 796, 798 (232 SE2d 84) (1976), aff'd Dept. of Natural Resources v. Keating, 238 Ga. 605 (234 SE2d 519) (1977).

Accordingly, we find that the court below erred in admitting into evidence and considering appellant Ray Guthrie’s conviction.

3. Guthrie filed an affidavit stating that he had employed appellee Meehan to prepare his and his wife’s personal income tax return, that he delivered complete records regarding the return to Meehan, but Meehan failed to properly prepare the return. As a result, he has incurred considerable expense in connection with the subsequent Internal Revenue Service investigation. In response to interrogatories, Guthrie stated that Meehan failed to file IRS Form 1099 to report a corporate payment to Mrs. Guthrie for secretarial services and failed to report this amount on the couple’s joint individual tax return. Appellees do not dispute that Meehan signed the return, or that it failed to include the $6,000, or that Meehan admitted his error to Guthrie’s Florida counsel that he failed to prepare the personal and corporate tax returns in a timely fashion. Appellees made only general denials to these allegations.

Applying the rules of construction pertaining to the grant of summary judgment, we find that a genuine issue of fact remained which required jury resolution. Hansford v. Robinson, 255 Ga. 530 (340 SE2d 614) (1986).

Judgment reversed.

Carley, Sognier, Benham, and Beasley, JJ., concur. Birdsong, C. J., McMurray, P. J., Banke, P. J., and Pope, J., dissent.

Pope, Judge,

dissenting.

I dissent from the holding of the majority that plaintiffs’ claims are not estopped by the criminal conviction of plaintiff Ray Guthrie. The rule set forth in Pierce v. Pierce, 241 Ga. 96, 100 (243 SE2d 46) (1978), “that a judgment of conviction or acquittal rendered in a criminal prosecution cannot be given in evidence in a purely civil action, to establish the truth of the facts on which it was rendered,” clearly applies where, as in Pierce, the defendant in a negligence action seeks to introduce the dismissal or acquittal on criminal charges as evidence of lack of negligence. See, e.g., Smith v. Goodwin, 103 Ga. App. 248 (3) (119 SE2d 35) (1961); Clough v. Greyhound Corp., 91 Ga. App. 246 (1) (85 SE2d 476) (1954), rev’d on other grounds, 211 Ga. 574 (87 SE2d 387) (1955). See also Webb v. McDaniel, 218 Ga. 366 (127 SE2d 900) (1962) (where, in a civil action concerning the defendant’s right to inherit from his deceased wife, it was found to be error to permit the defendant to introduce his acquittal on charges of murder as evidence he did not intentionally kill his wife); Palmer v. Wilkins, 163 Ga. App. 104 (5) (294 SE2d 355) (1982) (where the trial court properly refused to admit evidence that a grand jury had investigated the facts involved in the civil action and had found no ground to indict defendant on criminal charges). The rule has also been applied where the plaintiff in a negligence action seeks to introduce defendant’s conviction on criminal charges as evidence of his civil liability for the criminal acts. See, e.g., Keebler v. Willard, 91 Ga. App. 551 (1) (86 SE2d 379) (1955).

However, the facts of this case are distinguishable from those involved in the cases cited above. Here, the defendants, in their respective motions for summary judgment, presented evidence that the plaintiff Ray Guthrie had been found criminally guilty of the very acts (or, more appropriately, omissions) of which plaintiffs accused defendants in their civil negligence action. Plaintiffs here allege, inter alia, that defendants negligently omitted income from their joint income tax return “without plaintiffs’ knowledge.” On the other hand, defendants have shown that Ray Guthrie was convicted on indictments accusing him of knowingly understating income from his joint income tax return. Thus, the issue of Ray Guthrie’s knowledge of the omission has already been litigated and decided in the criminal case. To permit plaintiffs to recover in this action would permit them to avoid the legal consequences of Ray Guthrie’s conviction. In effect, the bringing of this civil action is an impermissible attempt to collaterally attack the judgment of the federal court.

To admit a criminal conviction as evidence sufficient to support summary judgment in this case would be inconsistent with the longstanding general rule excluding such evidence. However, to exclude the evidence under the particular factual circumstances at hand would permit an unjust result. “The modern tendency seems to be to abandon any such general rule . . . and to approach the problem from the point of view of the particular judgment offered as evidence . . . so that the rule as to the admissibility of a beneficiary’s conviction for the murder of the insured in an action on the policy may conceivably differ from that as to the conviction for a traffic violation in a negligence action.” Annot., 18 ALR2d 1287, 1289 (1951). Cases from other jurisdictions in which a criminal conviction was ruled admissible have, like the case at hand, involved the situation where a criminal seeks to take advantage of his own wrong by bringing a civil action to transfer liability for that wrong to another. Id.

Perhaps the earliest opinion in which the plaintiff’s criminal conviction was found to be conclusive evidence on the issue at trial in the civil case, thereby serving as estoppel in the civil action, was issued by the Supreme Court of Appeals of Virginia in Eagle, Star &c. Ins. Co. v. Heller, 149 Va. 82 (140 SE 314) (1927). In Eagle, Star the award of insurance benefits to the plaintiff who had been convicted of arson was reversed. There, the Virginia court set forth in eloquent fashion why the circumstances of that case would not, in fairness, suffer the application of the general prohibition against admitting a criminal conviction as evidence. “The rule of exclusion is a shield for the protection of those who have had no opportunity to assert their defense. To apply it here would be to convert it into a sword in the hands of one who has had such an opportunity, to be used by him for the effectuation of the same fraud which has been established, condemned and punished in the criminal case. If there be a rule which cannot stand the test of reason, it is a bad rule.” 149 Va. at 106; 140 SE at 321, supra.

More recently, other jurisdictions have also held the plaintiff to be estopped from bringing a civil action where the plaintiff’s own criminal conviction necessarily rests upon a finding of fact which would preclude the plaintiff from recovering in the civil action. For example, in Wolfson v. Baker, 444 FSupp. 1124 (M.D. Fla. 1978), the plaintiff brought an action against a brokerage firm and an individual stockbroker alleging that, as a result of the negligence and recklessness of the stockbroker, the plaintiff had been convicted of violating federal securities laws and had sustained specified damages. The U. S. District Court for the Middle District of Florida found that the plaintiff’s conviction established he knowingly violated the securities law. By operation of collateral estoppel, plaintiff was precluded from relitigating that fact in the subsequent civil action. The court found that “regardless of mutuality principles, collateral estoppel may nevertheless be invoked where it appears that the party against whom the estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding and that application of the doctrine will not result in an injustice to the party against whom it is asserted under the particular circumstances of the case. . . . These same principles apply where, as here, the basis for applying collateral estoppel principles is a prior criminal proceeding against one of the parties.” (Punctuation and cits, omitted.) Id. at 1130. Once it was established by collateral estoppel that plaintiff knew of the registration requirements for the sale of his stock, reasons of public policy and the doctrine of in pari delicto precluded him from recovering from his broker for alleged failure to advise him of the requirements. Summary judgment was granted to the defendants. See also Aetna Life &c. Ins. Co. v. Johnson, 673 P2d 1277 (Mont. 1984) (where an insured convicted of arson was collaterally estopped from recovering from his insurance company); Casey v. Northwestern &c. Ins. Co., 260 Ore. 485 (491 P2d 208) (1971) (where the insured’s conviction of assault with a deadly weapon precluded the insured from recovering from the insurance company for the cost of defending the civil action brought against him by the victim of his crime); Teitelbaum Furs v. Dominion Ins. Co., 58 Cal2d 601 (375 P2d 439; 25 Cal. Rptr. 559) (1962) (where collateral estoppel was applied to preclude plaintiff corporations from recovering from their insurance company for a theft loss where it was shown that the president of those companies had been convicted of conspiracy to commit theft and fraud in regard to the same loss involved in the civil action).

The California court noted in Teitelbaum Furs, supra, that earlier cases which held a criminal conviction could not operate as collateral estoppel in a civil action were either decided upon the outdated doctrine of mutuality of estoppel or involved the defendant’s attempt to introduce evidence of a prior acquittal. The same may be said of earlier cases decided by the Georgia courts. As noted above, the facts of this case are distinguishable from those in Pierce v. Pierce, supra, and other cases in which the defendant was precluded from introducing evidence of acquittal of criminal charges as evidence that he was not liable in negligence. Therefore, we are not bound in this case by the holding in Pierce. To the extent the general language in Pierce prohibits the use of a previous criminal conviction as evidence in a subsequent civil action under any other circumstances than those present in Pierce, it exceeds the scope of the issues contained in that case and may be considered dicta.

In only one instance has this court ruled that a defendant may not introduce evidence of the plaintiff’s criminal conviction as collateral estoppel on an issue to be tried in a civil case. In Keating v. Dept. of Natural Resources, 140 Ga. App. 796 (2) (232 SE2d 84) (1976), aff’d on other grounds, 238 Ga. 605 (234 SE2d 519) (1977), this court held that plaintiff’s conviction could not serve as collateral estoppel of one of the issues he was required to prove in the civil case because there was no identity of parties in the two cases and therefore no mutuality of estoppel. Since Keating was decided, the requirement of mutuality of estoppel has been largely abandoned. “The modern trend in applying the doctrines of res judicata and collateral estoppel is to . . . permit one who is not a party to the judgment to assert the judgment against a party who is bound by it, and thus to preclude relitigation by that party of issues which have been determined adversely to him in the prior action. . . .” Watts v. Lippitt, 171 Ga. App. 578, 579 (320 SE2d 581) (1984). Another ground for the holding in Keating was that the issues in the criminal conviction and the civil action were not identical. In the case at hand, as discussed in greater detail below, the issue decided by the jury in the criminal conviction was identical to the material issue in defendants’ defense. Therefore, the case now before us can be partially distinguished from Keating on its facts. However, to the extent the Keating opinion precluded the admission of plaintiff’s criminal conviction on the ground of failure of mutuality, it is outdated and should be overruled.

One reason why acquittal from a criminal charge has not been allowed as evidence in a subsequent civil action is the difference in burden of proof imposed upon the state in a criminal trial and the plaintiff in a negligence action. For example, in Webb v. McDaniel, supra, the defendant who had been tried and acquitted of the murder of his wife sought to introduce the acquittal as evidence, under a theory of res judicata, in a civil action brought by relatives of the deceased wife who sought to prevent defendant from inheriting from his wife’s estate. As the Supreme Court noted, a finding in the civil action by a mere preponderance of the evidence that the husband had killed his wife with malice aforethought would be wholly consistent with the acquittal in the criminal trial for failure of the state to prove beyond a reasonable doubt the husband had so killed his wife. The acquittal proved nothing at issue in the civil action and thus could not bar the action or any issue involved in it. Implicit in the court’s reasoning is the inverse of that rule. A finding of guilt beyond a reasonable doubt by a jury in a criminal action would be wholly inconsistent with a finding of no liability for the same act in a subsequent civil action. Thus, where it has been fully and fairly tried, a verdict of guilt may serve as estoppel in a civil action. Georgia courts permit one who was not a party to an earlier civil action to use the judgment in the earlier action as collateral estoppel in a subsequent civil case. Watts v. Lippitt, supra. It is inconsistent for this court to permit a finding on a mere preponderance of the evidence in a negligence action to serve as collateral estoppel in a subsequent negligence action and not to permit a finding beyond a reasonable doubt by a jury in a criminal trial to serve as collateral estoppel in a subsequent civil action where that same fact must be proven only by a preponderance of the evidence.

Turning to the facts of the case now before us, it is my opinion that collateral estoppel precludes plaintiffs’ claims. In answers to interrogatories, plaintiffs set forth various acts or omissions by defendants which they claim show negligence. On deposition, plaintiff Ray Guthrie admitted that most of these alleged acts of negligence resulted in no measurable damage to him. The gist of plaintiffs’ complaint is that they were damaged by the defendants’ omission of income on the tax returns “without plaintiffs’ knowledge.” Plaintiff Ray Guthrie was convicted on indictments accusing him of knowingly understating income from business or profession. Thus, it appears that the issue of Ray Guthrie’s knowledge and intent to defraud the government for the very omission of income alleged by plaintiffs has already been litigated and decided against them. Under the factual circumstances of this case, there can be no question but that Ray Guthrie acted as the agent of his wife and his company in filing the returns in question. Therefore, Guthrie’s acts are imputable to all plaintiffs. Moreover, the other defendants are in privity with defendant Guthrie and collateral estoppel may properly be imposed against them. Plaintiffs are thus precluded by estoppel from relitigating the issue of Ray Guthrie’s own criminal liability for omission of income. This criminal liability should preclude recovery against defendants for omission of income pursuant to the doctrine of in pari delicto. A thorough review of the record shows all remaining allegations against defendants either admittedly resulted in no damage to plaintiffs or else such negligible damages that they should be dismissed pursuant to the doctrine of de minimis non curat lex.

By asserting that a criminal conviction involving fraud may operate as collateral estoppel against a plaintiff in a civil action, I do not propose that any conviction of a party to a civil action may be admissible as evidence in that action. The admissibility of such evidence, and particularly its sufficiency to operate as collateral estoppel, must be determined according to the factual circumstances of each case. As in any case involving collateral estoppel, the facts must show: (1) that the issue decided in the prior litigation is identical with the one presented in the current action; (2) that the prior action resulted in a final judgment on the merits; and (3) that the party against whom the plea of collateral estoppel is asserted was a party or in privity with a party to the prior adjudication. Accord Teitelbaum Furs, supra. The facts must also show that the party against whom the plea of estoppel is asserted had a full opportunity to litigate the issue in question. Watts v. Lippitt, supra. Where, as here, the defendant in the criminal action was charged with a crime punishable by imprisonment, we must assume he had every motive to make as vigorous and effective a defense as possible. Only where all these circumstances are present, any issue necessarily decided in a prior criminal proceeding should also be conclusively determined as to the parties in the criminal proceeding, if that issue is involved in a subsequent civil action. Accord Teitelbaum Furs, supra.

Decided March 16, 1988

Rehearings denied March 31, 1988

John M. Tatum, for appellants.

Frank A. Lightmas, Jr., Joseph J. Berrigan, David R. Smith, Robert H. Putnam, Jr., for appellees.

I am authorized to state that Chief Judge Birdsong and Presiding Judge Banke join in this dissent.

       In Keating, the plaintiff had been found guilty of illegal shrimping. He brought a civil action to recover from the Department of Natural Resources the proceeds of the sale of all shrimp aboard his boat at the time of his arrest. While his conviction would have proven the shrimp in his net at the time of arrest were illegally caught, it did not prove that other shrimp already on board his boat were also contraband subject to seizure by the state.

       Plaintiffs also cite to Myers v. Barnard, 180 Ga. App. 192 (348 SE2d 733) (1986), as another example where the defendant was precluded from introducing evidence of the plaintiff’s criminal conviction. In that case, arising out of a traffic accident, defendant sought to introduce evidence that plaintiff had been fined for driving without a taillight in support of his motion for summary judgment. This court ruled that the traffic conviction could not be considered as evidence in ruling on the motion. Myers is distinguishable from the case now before us, first, because it involved merely a traffic citation and not a conviction for a crime punishable by imprisonment, as discussed infra. Secondly, the conviction in Myers was not determinative of the material issue in the case. As noted in the opinion, an inoperative taillight alone is insufficient to warrant a finding that the traffic accident was caused solely by plaintiff’s own negligence.