author: Eldridge, Judge.

text:
    A01A2292.
    SYLVESTER et al. v. DEPARTMENT OF TRANSPORTATION.
    (555 SE2d 740)
   Eldridge, Judge.

Lynn M. Sylvester and Steven K. Sylvester appeal from the grant of summary judgment against them in their Georgia Tort Claims Act action, which arose February 28, 1997, against the Department of Transportation, because they never served the Department of Administrative Services, Risk Management Division, in their original suit filed February 26, 1999; voluntarily dismissed the suit prior to service on the DOAS Risk Management Division; and attempted to renew the action after the statute of limitation had run. The renewal suit was ineffective to come within the six-month grace period, because the first suit was never served on the DOAS Risk Management Division for there to be a conditional waiver of sovereign immunity so thát the first suit was a valid prior pending action prior to the running of the statute of limitation that was renewable. We affirm.

On February 28, 1997, Lynn Sylvester hydroplaned on standing water on a state highway, which was allegedly caused by the DOT’s negligent maintenance. On February 26, 1999, she and her husband Steven Sylvester filed suit against the DOT in the Lumpkin Superior Court in case no. 99-CV-110-DB. This suit was never served upon the DOAS Risk Management Division, but was served on DOT only. On January 10, 2000, plaintiffs voluntarily dismissed this action without prejudice. On June 9, 2000, the plaintiffs filed this action, case no. 00-CV-297-DB, in the Lumpkin Superior Court as a renewal action, which was served on both DOT and the DOAS Risk Management Division for the first time after the statute of limitation had run. DOT moved for summary judgment based on the attachment of the statute of limitation.

The Georgia constitutional amendment of 1974 gave constitutional status to sovereign immunity for the State of Georgia and permitted the General Assembly to statutorily provide the terms and conditions of its waiver but prevents the courts from abrogating or modifying the immunity. See Art. I, Sec. II, Par. IX, Ga. Const, of 1983; Gilbert v. Richardson, 264 Ga. 744, 745-746 (1) (452 SE2d 476) (1994); Pollard v. Bd. of Regents &c. ofGa., 260 Ga. 885, 886-888 (401 SE2d 272) (1991); Clark v. State of Ga., 240 Ga. 188 (240 SE2d 5) (1977).

The General Assembly granted a limited waiver of sovereign immunity with certain conditions precedent to the waiver; “[t]he state waives its sovereign immunity only to the extent and in the manner provided in this article.” OCGA §§ 50-21-23 (b); 50-21-35; Christensen v. State of Ga. 219 Ga. App. 10, 13 (7) (464 SE2d 14) (1995). Sovereign immunity of the State is waived only upon strict compliance with the Act. Kim v. Dept. of Transp., 235 Ga. App. 480, 481-482 (2) (510 SE2d 50) (1998) (failure to give ante litem notice); McGee v. State of Ga., 227 Ga. App. 107, 108-109 (1) (487 SE2d 671) (1997) (same); Howard v. State of Ga., 226 Ga. App. 543, 544-545 (1) (487 SE2d 112) (1997) (failure to give ante litem notice according to the statute). Substantial compliance with the Act is inadequate to waive sovereign immunity. McGee v. State of Ga., supra at 108-109 (1); Howard v. State of Ga., supra at 544-545.

Under the Tort Claims Act,

to perfect service of process the plaintiff must both: (1) cause process to be served upon the chief executive officer of the state government entity involved at his or her usual office address; and (2) cause process to be served upon the director of the Risk Management Division of the Department of Administrative Services at his or her usual office address. The time for the state to file an answer shall not begin to run until process has been served upon all required persons.

OCGA § 50-21-35. Thus, the failure to serve the director of the DOAS Risk Management Division did not comply with the condition precedent to waiver of sovereign immunity, and the State had no duty to respond to the first timely filed suit.

If a condition precedent to waiver of sovereign immunity has not been satisfied, then the trial court lacks subject matter jurisdiction and no valid action is pending to toll the running of the statute of limitation. See OCGA § 50-21-26 (a) (3); Howard v. State of Ga., supra at 543 (failure to give ante litem notice bars action); Howard v. Miller, 222 Ga. App. 868, 871 (1) (476 SE2d 636) (1996) (same).

The Georgia Tort Claims Act has its own statute of limitation, which should be read in conjunction with the regular statute of limitation; “[flor tort claims and causes of action which accrue on or after July 1, 1992, any tort action brought pursuant to this article is forever barred unless it is commenced within two years after the date the loss was or should have been discovered.” OCGA § 50-21-27 (c); see Doe #102 v. Dept. of Corrections, 268 Ga. 582, 583 (2) (492 SE2d 516) (1997). When a suit has been filed within the statute of limitation and dismissed after the statute has attached, a party may dismiss, pay all costs, and recommence the action by a new filing of the suit. OCGA § 9-2-61 (a); Brooks v. Douglas, 154 Ga. App. 54, 55-57 (1) (267 SE2d 495) (1980). However, the pending action must have been a valid action that is subject to renewal. Birmingham Fire Ins. Co. &c. v. Commercial Transp., 224 Ga. 203, 204 (1) (160 SE2d 898) (1968); Douglas v. Kelley, 116 Ga. App. 670 (3) (158 SE2d 441) (1967); Morrison v. Bowen, 106 Ga. App. 464 (2) (127 SE2d 194) (1962). A void action cannot be renewed after thé statute of limitation has run. Grier-Baxter v. Sibley, 247 Ga. App. 560, 562 (2) (545 SE2d 5) (2001) (dental malpractice suit void for failure to timely file affidavit and could not be renewed); Collins v. West American Ins. Co., 186 Ga. App. 851, 852 (2) (368 SE2d 772) (1988) (under prior act federal court lacked subject matter jurisdiction and could not be renewed). Where there was no service in the prior action, lack of service made the prior suit void and not voidable. Clark v. Dennis, 240 Ga. App. 512 (1) (522 SE2d 737) (1999); Hudson v. Mehaffey, 239 Ga. App. 705, 706 (521 SE2d 838) (1999); Garcia v. Virden, 236 Ga. App. 539, 540 (512 SE2d 664) (1999).

Decided October 12, 2001.

Douglas R. Daum, for appellants.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, for appellee.

In this case, plaintiffs failed to strictly comply with the conditions precedent to the waiver of sovereign immunity and failed to have service made on the DOAS Risk Management Division; therefore, there was no valid pending action that could be renewed after the running of the statute of limitation in this action, and the defendant was entitled to summary judgment as a matter of law.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       Ga. L. 1973, pp. 1489-1490, was a constitutional resolution that put before the electors of Georgia the creation of constitutional sovereign immunity in the 1945 Georgia Constitution. The 1976 Georgia Constitution reincorporated sovereign immunity. The 1983 Georgia Constitution provided for the General Assembly to create provisions for waiver of sovereign immunity. See Toombs County v. O’Neal, 254 Ga. 390, 391 (330 SE2d 95) (1985).

       OCGA § 9-2-61 (c) added by amendment Ga. L. 1990, p. 876, § 1.


source: Caselaw Access Project

license: Public Domain

text:
    A01A2318.
    DORSEY v. THE STATE.
    (555 SE2d 498)
   Eldridge, Judge.

In 2000, defendant Byron Joseph Dorsey, Jr. was accused of aggravated assault, battery, aggravated sodomy, and rape. At the Hall County jury trial, the defendant’s former wife and victim, a woman with whom he had continued to live after being divorced, testified that the defendant picked her up from a Gainesville hotel where she spent the night with two male strangers, took her to their residence, beat her, and, while holding a knife on her, forced her to sodomize him orally and to submit to anal and vaginal intercourse with him. A Hall County jury convicted the defendant of one count of aggravated assault and one count of battery only. The defendant was sentenced concurrently to twenty years confinement, to serve six, and the remainder probated. Held:

1. After the events in issue occurred, the victim was admitted to a shelter for battered women. On direct examination of the shelter’s intake clerk and over the defendant’s objection, the trial court allowed the State to introduce the victim’s statement on admission as to what brought her to the shelter — this as consistent with her testimony on direct. Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). The statement was as follows: “[She and the defendant] were drinking 5:00 to 9:00. She jumped out of the truck, went to the hotel with two men, called [the defendant] in a.m. to come get her. [The defendant] beat her up real bad. Then she went home with him. The police were called. At home he pulled her hair and made her have sex with him.” The defendant contends the admission of this testimony was error upon the claim that he had not attacked the victim’s truthfulness on cross. Woodard v. State, 269 Ga. 317, 320 (2) (496 SE2d 896) (1998). In Woodard, the Supreme Court held that “[u]nless a witness’s veracity has affirmatively been placed in issue, the witness’s prior consistent statement is pure hearsay evidence, which cannot be admitted merely to corroborate the witness, or to bolster the witness’s credibility in the eyes of the jury.” (Footnotes omitted.) Id.

Defendant’s claim to the contrary notwithstanding, defendant’s cross-examination of the victim shows that he challenged her testimony on direct as inconsistent with what she told police and defense counsel in earlier interviews and as colored by the degree to which she had been intoxicated while at the Gainesville hotel and the morning after. In doing so, the defendant, in effect, challenged the victim’s trial testimony as recently fabricated. Accordingly, the trial court did not err in admitting the victim’s prior consistent statement. Blackmon v. State, 272 Ga. 858, 859 (2) (536 SE2d 148) (2000); Cuzzort v. State, supra; compare Woodard v. State, supra at 320 (2), fn. 2 (prior consistent statements inadmissible to bolster general credibility). Even were there error, we would reverse only in the event that the hearsay contributed to the guilty verdict. Id. at 324 (4). Given the overwhelming evidence of defendant’s guilt, the admission of the prior consistent statement, even if deemed error, was harmless. See Bridges v. State, 268 Ga. 700, 708 (6) (492 SE2d 877) (1997).

2. Further, the defendant argues that the trial court erred in allowing the jury to rehear that portion of the shelter intake clerk’s testimony recounting the prior consistent statement of the victim, set out infra, without reading back his cross-examination thereon. We are unpersuaded. It has long been settled that “[t]he jury should be permitted to limit what they rehear to what they desire to rehear, absent special circumstances which might work an injustice. Byrd v. State, 237 Ga. 781, 783 (229 SE2d 631) [(1976)]. Accord Wilkerson v. State, 165 Ga. App. 14 (299 SE2d 67) [(1983)].” Akers v. State, 179 Ga. App. 529, 530 (3) (346 SE2d 861) (1986). Accord Watkins v. State, 273 Ga. 307 (540 SE2d 199) (2001); Martin v. State, 240 Ga. App. 901 (525 SE2d 728) (1999). We find no special circumstances as would here require reversal, this particularly because the trial court twice issued cautionary instructions to the jury, directing it to consider the whole of the evidence and to refrain from giving greater emphasis to that evidence it heard twice. Akers v. State, supra at 531; Barnes v. State, 230 Ga. App. 884, 886 (2) (497 SE2d 594) (1998). In light of the foregoing, the trial court did not err in allowing the jury to rehear the testimony it requested.

Decided October 12, 2001.

Turner & Willis, Christopher W. Willis, for appellant.

Lydia J. Sartain, District Attorney, Lindsay H. Messick, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J, and Miller, J, concur.


text:
    A01A2505.
    PERKINS et al. v. DEPARTMENT OF MEDICAL ASSISTANCE.
    (555 SE2d 500)
   Eldridge, Judge.

In 1996, Larry Perkins d/b/a Royal Lion Transportation and Diane Finney d/b/a Executive Nonemergency Transportation were contract providers of nonemergency medical transportation services for indigents with the Georgia Department of Medical Assistance. These plaintiffs sued DMA over the method used by it to calculate amounts owed for such transportation. In 1996, the plaintiffs were audited using a “straight line” audit method, which resulted in the denial of payment of some of their charges. Royal Lion previously brought suit to adjudicate DMA’s use of the straight line audit, which resulted in an award of $26,526.93. Executive neither used the administrative appeal process nor otherwise challenged the results of the 1996 audit then, but seeks to do so now in this action.

DMA answered and moved for either summary judgment or dismissal. The trial court granted summary judgment as to both plaintiffs. Executive failed to exhaust administrative remedies available below, and therefore, the superior court lacked subject matter jurisdiction to consider any suit against DMA. The trial court should have dismissed Executive under OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction as a defense in abatement rather than grant summary judgment on the merits; therefore, the judgment as to Executive is ordered vacated and an order of dismissal without prejudice entered instead. As to Royal Lion, it previously litigated the same issues and won a substantially smaller damage award than it seeks now; res judicata bars the relitigation of such issues; and the grant of summary judgment is affirmed as to Royal Lion.

1. “[A] party aggrieved by a state agency’s decision must raise all issues before that agency and exhaust available administrative remedies before seeking any judicial review of the agency’s decision” by seeking equitable or declaratory relief. Cerulean Cos. v. Tiller, 271 Ga. 65, 66 (1) (516 SE2d 522) (1999); see also OCGA § 50-13-19 (a); Brogdon v. State Bd. of Veterinary Medicine, 244 Ga. 780, 781 (262 SE2d 56) (1979); Irvin v. Jenkins, 233 Ga. 16 (209 SE2d 610) (1974). It must be remembered that the constitutional separation of powers between the executive branch and the judicial branch prevents courts from involvement in review of administrative decisions unless there exists specific legislative empowerment for the judiciary to act regarding executive branch functions; when such delegation of power exists, appeals to the courts must follow such statutory procedures as a condition precedent to obtaining subject matter jurisdiction, because such conferred powers over executive branch functions are statutorily circumscribed. See Bentley v. Chastain, 242 Ga. 348, 349-352 (1) (249 SE2d 38) (1978); Moreton Rolleston, Jr. Living Trust v. Glynn County Bd. of Tax Assessors, 240 Ga. App. 405, 408-409 (2) (a) (523 SE2d 600) (1999); see also Dept. of Transp. v. City of Atlanta, 260 Ga. 699, 702-703 (1) (398 SE2d 567) (1990).

Where there are constitutional or other statutory rights that give the courts original jurisdiction over a matter in which the executive branch has acted, the courts may act independently from appeals. See Bentley v. Chastain, supra at 352; Rolleston v. Glynn County Bd. of Tax Assessors, supra at 408, n. 2. “The mere existence of an unexhausted administrative remedy does not, standing alone, afford a defendant an absolute defense to the institution of a legal action.” Hunnicutt v. Ga. Power Co., 168 Ga. App. 525, 526 (1) (309 SE2d 862) (1983). When the administrative remedy is optional, a litigant is not required to exhaust that remedy before seeking redress in the courts of a legal cause of action. Id. at 526; see also Motor Finance Co. &c. v. Harris, 150 Ga. App. 762, 765 (4) (258 SE2d 628) (1979). However, “ ‘[w]here the question involved is within the jurisdiction of an administrative agency and the question demands the exercise of administrative discretion requiring the special knowledge and experience of the agency, no action for damages will lie prior to a decision by the agency.’ ” Bailey v. Wilkes, 162 Ga. App. 410, 414 (2) (291 SE2d 418) (1982); see also Douthit v. State of Ga., 180 Ga. App. 464, 466 (349 SE2d 493) (1986).

Dismissals for failure to exhaust administrative remedies may only be “based upon statutes which by express terms or necessary implication give to the administrative board exclusive jurisdiction or which make the exhaustion of administrative remedies a condition precedent to judicial action.” (Citations, punctuation and emphasis omitted.) Hunnicutt v. Ga. Power Co., supra at 526 (1) (citing Evans v. Louisville &c. R Co., 191 Ga. 395, 401-402 (1) (12 SE2d 611) (1940)).

Under the Georgia Administrative Procedure Act, appeal from decisions of the Department of Community Health regarding a denial, nonpayment, or determination of the amount of reimbursement paid or payable requires an administrative appeal filed with the Department of Community Health. A timely judicial review of a final agency decision after an administrative appeal can be made to the superior court only if the condition precedent of exhaustion of ah administrative appeal has first been completed. OCGA §§ 49-4-153 (c); 50-13-19. Such procedures provided an adequate, direct, and timely method to deal with the issues raised by Executive in this litigation. In contrast, Royal Lion achieved success in its administrative appeal, demonstrating that the administrative appeal was not futile.

Executive had to appeal the decision reducing its payments after the 1996 audit by requesting a hearing under the APA, which it failed to do. OCGA § 49-4-153 (b) (2). Therefore, the trial court lacked subject matter jurisdiction, because Executive had no right to appeal to the superior court unless and until it had as a condition precedent exhausted its administrative remedies through a timely administrative appeal. See Hunnicutt v. Ga. Power Co., supra at 526. Executive cannot avoid the requirement for exhaustion of administrative remedies by claiming that its action is a mere breach of contract action seeking the recovery of damages, because the administrative procedures covered such disputes; Executive is prohibited from doing by indirection that which it is prohibited from doing directly, i.e., bypassing the exhaustion of administrative appeals. See Dept. of Human Resources v. Lewis, 217 Ga. App. 399, 400 (457 SE2d 824) (1995); see also Mayor &c. of Savannah v. Savannah Cigarette &c. Svcs., 267 Ga. 173, 174 (476 SE2d 581) (1996); Krasaeath v. Parker, 212 Ga. App. 525, 527 (1) (441 SE2d 868) (1994).

Decided October 12, 2001

Ralph S. Goldberg, for appellants.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy

2. Royal Lion litigated successfully to judgment the same damage issues that it seeks to raise in this litigation; therefore, it is barred from the relitigation of such issues in the face of a prior judgment by the doctrine of res judicata. OCGA § 9-12-40. Here the parties were the same; the cause of action identical; and there had been a prior adjudication on the merits by a court of competent jurisdiction. OCGA § 9-12-42; Lawson v. Watkins, 261 Ga. 147, 148 (1) (401 SE2d 719) (1991); Blackwell v. Ga. Real Estate Comm., 205 Ga. App. 233-234 (421 SE2d 716) (1992).

3. Where the trial court does not determine to grant class action status to a suit, the action rests upon the underlying action of the representative plaintiffs as their individual actions. Dillingham v. Doctors Clinic, 138 Ga. App. 41, 42 (3) (225 SE2d 500) (1976). Since there was no party with standing to bring the class action suit, because the representative plaintiffs’ actions were dismissed, then it was proper to dismiss the action. OCGA § 9-11-23; Ford Motor Credit Co. v. London, 175 Ga. App. 33, 35 (332 SE2d 345) (1985); Hill v. Gen. Finance Corp. &c., 144 Ga. App. 434, 436 (1) (241 SE2d 282) (1977).

Judgment affirmed in part and vacated in part.

Andrews, P. J., and Miller, J., concur.

Attorney General, William C. Joy, Senior Assistant Attorney General, Per B. Normark, Assistant Attorney General, for appellee.

       The Department of Medical Assistance is now known as the Georgia Department of Community Health.

       In Civil Action E-67695, Fulton Superior Court, Royal Lion received a judgment that held that it was entitled to payment of $26,526.93, because the straight line audit method was not permitted in the 1996 audit. In the action below, Royal Lion sought to recover for the same services for the same period $1,664,520. OCGA § 9-12-40.

       The APA provides in OCGA § 49-4-153 (b) (2) (A) that a hearing be held on appeal under OCGA §§ 50-13-13 and 50-13-15 with the Department of Community Health.

       Executive argues that exhaustion of administrative remedies is not required when such relief is inadequate or when administrative relief is futile. See Powell v. City of Snellville, 266 Ga. 315, 316 (467 SE2d 540) (1996); Wilson v. Ledbetter, 260 Ga. 180, 181 (390 SE2d 846) (1990); Hilton Constr. Co. v. Rockdale County Bd. of Ed., 245 Ga. 533, 539 (266 SE2d 157) (1980); Conklin v. Zant, 202 Ga. App. 528 (414 SE2d 741) (1992). Only in such rare instances where “the administrative remedy exacts a price which causes it to be no remedy at all” will the courts permit a bypass of the exhaustion requirement to occur. Moss v. Central State Hosp., 255 Ga. 403, 404 (339 SE2d 226) (1986); First Union Nat. Bank &c. v. Independent Ins. Agents &c., 197 Ga. App. 227, 228 (1) (398 SE2d 254) (1990).


author: Miller, Judge.

text:
    A01A1055.
    CARROLL v. THE STATE.
    (554 SE2d 560)
   Miller, Judge.

A jury found Freddie O. Carroll guilty of DUI, weaving over the roadway, and reckless driving. On appeal Carroll argues that the accusations based on these offenses were filed outside the two-year limitation period and that the court erred in failing to instruct the jury on the statute of limitation.

On May 23, 1996, police issued Carroll uniform traffic citations charging him with three traffic offenses. These citations were filed in Atlanta City Court on May 24,1996. On July 10,1998, the State filed accusations for the same offenses.

1. “A uniform traffic citation serves as an accusation in any court having jurisdiction over the offense, except superior court.” The July 1998 accusations were based on the same conduct as the original citations (of which there had been no final disposition) and thus were a continuation of the prosecution of those citations.

The arresting officer testified that on May 23, 1996, he arrested and charged Carroll with DUI. Although the better practice would have been to admit the uniform traffic citations into evidence, this is sufficient evidence for the jury to infer that the crimes were prosecuted within the two-year limitation period.

2. Carroll argues that the court erred in failing to instruct the jury on the statute of limitation. Carroll did not, however, submit a timely written request to charge on the statute of limitation and has therefore waived the right to any such charge.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

Decided August 28, 2001

Reconsideration denied October 15, 2001

Chestney Hawkins Law Firm, Robert W. Chestney, for appellant.

Joseph J. Drolet, Solicitor-General, Jennifer L. Moore, Assistant Solicitor-General, for appellee.

         Under OCGA § 17-3-1 (d), “[p]rosecution for misdemeanors must be commenced within two years after the commission of the crime.”

       (Citations omitted.) Prindle v. State, 240 Ga. App. 461 (1) (523 SE2d 44) (1999).

       See id. at 462; State v. Rustin, 208 Ga. App. 431, 433 (2) (430 SE2d 765) (1993) (filing of formal accusation after issuance of uniform traffic citation would have been a superfluity); cf. Freeman v. State, 194 Ga. App. 905, 908 (8) (392 SE2d 330) (1990).

       The weaving and reckless driving charges were merged with the DUI charge.

       Carroll submitted a request to charge only after the court failed to give instruction on the statute of limitation.

       See Pryor v. State, 231 Ga. App. 136, 138 (6) (497 SE2d 805) (1998); Wallace v. State, 216 Ga. App. 718, 720 (4) (455 SE2d 615) (1995).


author: Andrews, Presiding Judge.

text:
    A01A1222, A01A1471.
    BRANDENBURG et al. v. ALL-FLEET REFINISHING, INC.; and vice versa.
    (555 SE2d 508)
   Andrews, Presiding Judge.

Case No. A01A1222

Terry Brandenburg and Spectrum, Inc. (Brandenburg) appeal from the judgment entered after a bench trial on the issue of damages for misappropriation of trade secrets from All-Fleet Refinishing, Inc. After hearing the evidence, the court awarded All-Fleet $79,205 on its claims for lost profits and unjust enrichment, $158,410 in exemplary damages, and $79,205 in attorney fees. Brandenburg claims on appeal that the evidence was insufficient to support the award. For the following reasons, we conclude the evidence was sufficient to support the damages awards but insufficient to support the award of attorney fees.

The evidence in this case, taken in the light most favorable to the judgment, was as follows. All-Fleet, incorporated in 1993, is in the business of heavy commercial vehicle collision paint graphics. In 1997, Terry Brandenburg started a similar business at Spectrum. At that time, Brandenburg hired four of All-Fleet’s employees. In its complaint, All-Fleet alleged that these employees stole computer software from All-Fleet which formed the basis of its operations. This software allowed Spectrum to gain an unfair advantage over All-Fleet in bidding for jobs and dealing with customers.

Brandenburg did not file an answer, and the court granted All-Fleet a default judgment. Accordingly, liability was established, and the case went to trial only on the issue of damages.

J. D. Walker, president of All-Fleet, testified at trial and introduced evidence that his business had increased considerably from 1993 to 1996, then dropped suddenly in 1997. Walker stated that he went from thirty-eight employees down to six because the business had “dried up.”

He said he kept up with market conditions and noted that the economy as a whole had continued to grow since 1997. He also introduced evidence that the total number of commercial vehicles weighed in the State had increased during those years. Walker stated that he also kept up with his customers’ business conditions through trade publications, and he could not identify any economic factor which would have caused the decline in All-Fleet’s gross profits since February 1997. He said that, in his opinion, All-Fleet began losing customers after February 1997, because Brandenburg had access to the operations and customers of All-Fleet and had the ability, because of the stolen computer software, to underbid All-Fleet on jobs.

All-Fleet’s expert, Richard Guynn, testified that he reviewed numerous documents from All-Fleet, including its sales and financial statements. Guynn said that from 1993-1996, All-Fleet’s sales roughly doubled each year and gross profits “increased dramatically.” In looking at market conditions such as the increase in the number of trucks registered in the State, Guynn estimated that All-Fleet’s sales should have increased at the rate of ten percent a year. Walker testified to a net profit as 30 percent of sales, and Guynn used this figure as a reasonable estimate. Guynn testified that it would be reasonable to assume that the theft of trade secrets caused the decline in All-Fleet’s business, assuming there were no other market conditions identified that could account for it.

Brandenburg’s expert, Susan Gilbert, testified that she disagreed with Guynn’s conclusions about the projected growth of All-Fleet’s business. She gave several other possible reasons for the decline in revenue other than the theft of the software. Gilbert also stated that Guynn’s thirty percent profit on sales was high and that for the automotive repair business, which was the closest comparable category she could find, average returns on sales were around five percent.

After hearing the evidence, the trial court awarded damages for lost profits, exemplary damages, and attorney fees. This appeal followed.

“In a bench trial, as here, the trial court sits as the trier of fact and the court’s findings will not be set aside unless clearly erroneous. Since the clearly erroneous test is the same as the any evidence rule, an appellate court will not disturb the factual findings of the trial court when there is any evidence to sustain such findings.” (Footnotes omitted.) BMH Real Estate Partnership v. Montgomery, 246 Ga. App. 301, 302 (1) (540 SE2d 256) (2000).

1. The evidence, as discussed above, was sufficient to support the award of lost profits. Contrary to Brandenburg’s claims on appeal, the court did not err in hearing the testimony of All-Fleet’s president or its expert witness. The admission or exclusion of evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. American Petroleum Products v. Mom & Pop Stores, 231 Ga. App. 1, 7 (3) (497 SE2d 616) (1998). Moreover, when the judge sits as the trier of fact, it is presumed that he will consider only legally admissible evidence. Schaffer v. City of Marietta, 220 Ga. App. 382, 384 (469 SE2d 479) (1996).

Further, as All-Fleet points out, in computing the lost profits, the court did not use the gross sales loss figure of thirty percent put forward by All-Fleet’s expert, but the much lower five percent figure testified to by Brandenburgs expert. In addition, the court found that Brandenburg’s expert gave no facts to support her opinion that the downturn in All-Fleet’s business was attributable to the general economic slowdown following the Olympics. Accordingly, there was evidence to support the trial court’s findings on this issue, and there was no error.

2. Brandenburg also argues the trial court erred in awarding damages for unjust enrichment. Because the court’s order clearly states that it awarded no separate damages for unjust enrichment and makes no findings of fact on this claim, we need not address this enumeration.

3. Next, Brandenburg claims the trial court erred in not allowing testimony on the spreadsheets developed for Spectrum by All-Fleet’s former employees. At trial, Brandenburg called Chris Acres, one of the former employees of All-Fleet who went to work with Spectrum and who the complaint alleged had taken the estimate software. All-Fleet objected to a portion of his testimony concerning the information he used in preparing spreadsheets for Spectrum. Counsel contended that this went to liability, which had already been determined.

The court correctly sustained the objection. This evidence was irrelevant on the issue of damages. Moreover, Brandenburg himself testified that he had no need for the computer software stolen from All-Fleet and used only Microsoft EXCEL in his business.

4. In his next enumeration, Brandenburg claims the trial court erred in awarding exemplary damages. He contends there was no evidence of wilful and malicious conduct which would support such an award and also argues that these damages were not pled for in the complaint.

As to this latter claim, we note that the court awarded exemplary damages under OCGA § 10-1-763 (b). This section provides that under the Georgia Trade Secrets Act, a court may award exemplary damages if it finds that wilful and malicious misappropriation exists. Unlike OCGA § 51-12-5.1 (d) (1), there is no requirement in this Code section that punitive damages be specifically asked for in the complaint. Accordingly, the case relied on by Brandenburg in support of his argument is not persuasive.

We also conclude that there was evidence to support the trial court’s finding of wilful and malicious misappropriation. The trial court found that Brandenburg’s actions in hiring All-Fleet’s employees, stealing its software, and actively soliciting its customers were wilful and malicious. There was evidence at trial to support this finding, and we will not disturb it on appeal.

5. Lastly, Brandenburg claims the trial court erred in awarding attorney fees. OCGA § 10-1-764 provides that if the court finds wilful and malicious misappropriation, the court may award reasonable attorney fees to the prevailing party. We have already determined that the court could correctly find that the misappropriation was wilful and malicious.

Brandenburg also argues that there was no evidence that the attorney fees awarded were reasonable. We agree.

All-Fleet’s attorney testified at the close of the evidence that his fee agreement with All-Fleet was for. one-third of the recovery amount. He stated that it was his opinion that this was a fair and reasonable fee in this case.

“A court may consider a contingent fee agreement and the amount it would have generated as evidence of usual and customary fees in determining both the reasonableness and the amount of an award of attorney fees.” Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 403 (1) (433 SE2d 606) (1993). But,

[e]vidence of the existence of a contingent fee contract, without more, is not sufficient to support the award of attorney fees. An attorney cannot recover for professional services without proof of the value of those services. A naked assertion that the fees are “reasonable,” without any evidence of hours, rates, or other indication of the value of the professional services actually rendered is inadequate.

(Citations omitted.) Hsu’s Enterprises v. Hospitality Intl., 233 Ga. App. 309, 311 (2) (502 SE2d 776) (1998).

We therefore reverse the award of attorney fees and remand this case to the trial court for further proceedings consistent with this opinion.

6. All-Fleet’s motion for penalty for frivolous appeal is denied.

Case No. A01A1471

In this case, All-Fleet contends the trial court erred in denying its motion to dismiss Brandenburg’s appeal. All-Fleet moved to dismiss claiming that Brandenburg’s failure to timely pay costs resulted in an inexcusable delay in transmitting the record to this Court.

Decided October 15, 2001

Hawkins & Parnell, Paul M. Hawkins, H. Lane Young II, Ernest T. Brown, for appellants.

Smith, Wallis & Scott, Kenneth A. Smith, James W. Wallis, Jr., for appellee.

OCGA § 5-6-48 (c) provides that a transcript must be filed within 30 days after the filing of a notice of appeal unless an extension of time is requested as provided by OCGA § 5-6-39. The superior court may, after notice and hearing, order an appeal dismissed for a party’s failure to file a transcript on time only if the delay was (1) unreasonable, (2) inexcusable, and (3) caused by such a party. OCGA § 5-6-48; Sellers v. Nodvin, 262 Ga. 205 (415 SE2d 908) (1992). Whether or not to dismiss a notice of appeal for delay in paying costs rests in the sound discretion of the trial court when the grounds to dismiss have been met. In reviewing a finding of unreasonable and inexcusable delay in filing a transcript, this court will not disturb the lower court’s finding absent an abuse of discretion.

(Citations and punctuation omitted.) Stone v. Boyne, 245 Ga. App. 868, 869 (539 SE2d 209) (2000). We have determined that a delay in excess of 30 days is prima facie unreasonable and inexcusable, but this presumption is subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable. Id. at 870.

Here, the trial court held a hearing on All-Fleet’s motion and, in a detailed order, found the delay was excusable because it appeared to have been caused by the insurance carrier rather than the party. The court also found that the delay did not directly prejudice the appellee.

After reviewing the record and transcript of the hearing, we conclude there was no abuse of discretion in the trial court’s determination. Accordingly, the judgment in Case No. A01A1471 is affirmed.

Judgment affirmed in part, reversed in part and case remanded in Case No. A01A1222. Judgment affirmed in Case. No. A01A1471.

Eldridge and Miller, JJ., concur.


text:
    A01A1647.
    RICHARDS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    (555 SE2d 506)
   Eldridge, Judge.

We granted appellant-plaintiff Gary Richards’s application for interlocutory review of the state court’s order granting appelleedefendant State Farm Mutual Automobile Insurance Company’s motion to dismiss for lack of standing. Pertinently, this case arises out of an automobile collision between appellant-plaintiff Richards and appellee-defendant Robert Bufkin, the driver of a vehicle insured by State Farm, allegedly causing injuries to Richards’s lower back. Following the collision, Richards filed a personal injury claim with State Farm. He and State Farm thereafter engaged in settlement negotiations. When these broke down, Richards sued State Farm for bad faith refusal to settle and Bufkin for damages. Richards appeals the state court’s order granting State Farm’s motion to dismiss, arguing, among other things, standing to sue as a third-party beneficiary of Bufkin’s State Farm insurance policy under OCGA § 9-2-20 (b). We find no standing to sue. Held:

Generally, a party not in privity of contract may not bring a direct action suit against the liability insurer of the party alleged to have caused damage absent an unsatisfied judgment against the insured, legislative mandate, or as permitted by a provision in the insurance policy in issue. Googe v. Fla. Intl. Indem. Co., 262 Ga. 546, 548 (1) (422 SE2d 552) (1992); Caudill v. Strickland, 230 Ga. App. 644 (1) (498 SE2d 81) (1998); McKin v. Gilbert, 208 Ga. App. 788, 790 (1) (432 SE2d 233) (1993); Bacon v. Liberty Mut. Ins. Co., 198 Ga. App. 436 (401 SE2d 625) (1991). The exceptions to the general rule as “legislatively mandated” include the statutory authority of persons injured by motor common carriers from tort liability to sue the insurers directly. OCGA § 46-7-12 (e); Griffin v. Johnson, 157 Ga. App. 657 (278 SE2d 422) (1981). The statutory language designating children riding county school buses as insureds under required accident policies allows direct action. OCGA § 20-2-1090; Krasner v. Harper, 90 Ga. App. 128, 136-138 (2) (82 SE2d 267) (1954), aff’d, American Guarantee &c. Ins. Co. v. Krasner, 211 Ga. 142 (84 SE2d 46) (1954). Further, members of the general public also are insured from injury resulting upon the operation of such buses, not as liability coverage, but as accident coverage, allowing direct action. OCGA § 20-2-1092; State Farm &c. Ins. Co. v. Jones, 98 Ga. App. 46, 57-58 (2) (104 SE2d 725) (1958). Although not expressly recognized by statute, the Supreme Court has recognized the status of the victims of automobile accidents as third-party beneficiaries in light of compulsory automobile accident insurance; however, such status does not create the right of direct action for damages under the policy but only allows an action for equitable reformation or declaratory relief under the policy. Googe v. Fla. Intl. Indem. Co., supra at 548-549 (1); see also Payne v. Twiggs County School Dist., 269 Ga. 361, 364 (3) (496 SE2d 690) (1998).

The General Assembly’s passage of mandatory automobile liability insurance makes clear that [the] public policy is . . . concerned with providing adequate resources with which to compensate victims of automobile accidents, a new class of beneficiaries to automobile liability insurance contracts [as accident coverage which has since been repealed].

Cotton States Mut. Ins. Co. v. Starnes, 260 Ga. 235, 237 (392 SE2d 3) (1990).

Third-party beneficiary status in Richards results under the policy when he obtains a judgment against the insured. However, while there is a cause of action for failure to settle a case vested in the insured upon rendering an excess verdict over policy limits, Driskell v. Empire Fire &c. Ins. Co., 249 Ga. App. 56, 62-63 (4) (547 SE2d 360) (2001), a potential third-party beneficiary has no greater rights than the insured. Payne v. Twiggs County School Dist., supra; Allstate Ins. Co. v. Hendrix, 222 Ga. App. 865, 866 (476 SE2d 644) (1996). Absent an action for bad faith vested in the insured and an assignment of such action to the plaintiff, the plaintiff has no right to such an action. In this case, the policy provides that the insured cannot sue the insurer under the liability provisions thereof until after judgment or by agreement of the parties. Neither of these events having occurred, the state court did not err in granting State Farm’s motion to dismiss for lack of standing in Richards. “The existence of an actual controversy is fundamental to a decision on the merits by this court.” Bowers v. Bd. of Regents &c. of Ga., 259 Ga. 221-222 (378 SE2d 460) (1989); see also Project Control Svcs. v. Reynolds, 247 Ga. App. 889, 891 (1) (545 SE2d 593) (2001) (“Our review of [an order] grant [ing] a motion to dismiss is de novo. A motion to dismiss may be granted only where a plaintiff would not be entitled to relief under any set of facts that could be proven in support of its claim. [Cit.]”).

Decided October 15, 2001.

Stephen M. Ozcomert, for appellant.

Swift, Currie, McGhee & Hiers, John W. Campbell, Sharon W. Ware & Associates, Paul L. Groth, Michael T. Bennett, for appellees.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       More than $95,000 separated the parties, Richards submitting a demand package to State Farm in the amount of $100,000 and State Farm offering to settle for $4,500.

       OCGA § 9-2-20 (b) provides that “[t]he beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.”

       Although the policy in issue is not of record, on appeal, State Farm avers that such policy contains standard language to this effect.

       The Motor Vehicle Accident Reparations Act, Ga. L. 1974, p. 113 (codified as amended at OCGA §§ 33-34-1 through 33-34-17) was repealed by Ga. L. 1991, p. 1608, § 1.12, effective October 1, 1991. The present Motor Vehicle Accident Reparations Act is codified as OCGA §§ 33-34-1 through 33-34-8.

       In Driskell, among other things, we held that
      [a]n automobile liability insurance company may be liable for damages to its insured for failing to adjust or compromise the claim of [the] person injured by the insured and covered by its liability policy, where the insurer is guilty of negligence or of fraud or bad faith in failing to adjust or compromise the claim to the injury of the insured. Hence, where a person injured by the insured offers to settle for a sum within the policy limits, and the insurer refuses the offer of settlement, the insurer may be liable to the insured to pay the verdict rendered against the insured even though the verdict exceeds the policy limit of liability. The reason for this rule is that the insurer “may not gamble” with the funds of its insured by refusing to settle within the policy limits.
      (Citations omitted.) Driskell v. Empire Fire &c. Ins. Co., supra; compare OCGA § 33-4-7 (duty in insurer to make good faith effort to settle property damage claims with claimant to protect the insured).


text:
    A01A2018.
    A01A2019.
    GARRETT v. FLEET FINANCE, INC. OF GEORGIA. GARRETT v. BAGGARLY.
    (556 SE2d 140)
   Eldridge, Judge.

Gerald Turner Garrett, plaintiff, sought to set aside a second mortgage assigned to Fleet Finance, Inc. of Georgia, which he sought to rescind orally; Frances Garrett, his ex-wife, obtained the loan proceeds from Bruce W. Baggarly, Jr., the closing attorney, and had Myrtle Manas, her mother, deposit the funds secretly in her savings account. Fleet Finance, the assignee of the second mortgage, and Baggarly moved for summary judgments which were granted. Garrett separately appeals each grant of summary judgment. We affirm.

Garrett applied for a home improvement loan with Mortgage Matters, Inc. and Don Akers, mortgage broker, on his residence at 2028 Kenwood Place, Smyrna, Cobb County. Mortgage Matters approved a $12,750 loan, which on February 6, 1990, it subsequently assigned to Fleet Finance; after the origination fee and closing costs, Garrett netted $10,315. On February 1, 1990, Baggarly closed the loan with Garrett. Baggarly had Garrett execute various loan closing documents; Garrett received and executed a real estate loan disclosure statement, notice of the right to cancel, and a waiver of borrower’s rights to rescind. The right to rescind could be exercised within three days but had to be in writing and made by February 5, 1990. The notice of the right to rescind read: “HOW TO CANCEL[:] If you decide to cancel this transaction, you may do so by notifying us in writing, at Mortgage Matters, Inc., 1901 Powers Ferry Road, Suite 230, Marietta, Georgia 30067.” The closing statement disclosed that the funds would not be disbursed for three days until February 4.

Garrett suffered from severe dyslexia so that he had a problem reading and understanding what he read. However, Garrett never told either Baggarly or the mortgage broker that he was dyslexic, could not read, wanted the documents read to him, and needed the documents explained to him. Baggarly never asked Garrett if he could read the documents that Garrett was presented to sign, nor did he ask if Garrett understood the documents. Baggarly told Garrett that he could rescind the loan until February 5 but did not tell him that any rescission must be in writing by that date.

Garrett attempted to make an oral rescission by telephone on February 5. On February 6, 1990, the loan was assigned by Mortgage Matters to Fleet Finance. On February 5, Akers telephoned Garrett, telling him that he was to pick up the check between 3:00 and 3:30 p.m. from Baggarly.

On February 7, long after the rescission period had expired, Akers called for him to pick up the check for the loan proceeds, but Garrett told him that he did not choose to go through with the loan; again on February 8, Garrett received a message on his answering machine about picking up the check, and he called back to say that he did not want the loan.

On February 7, 1990, an escrow account check on Baggarly’s escrow account was made payable to Gerald T. Garrett for $10,315; the negotiated check showed the endorsements of Gerald T. Garrett and Myrtle Manas. A deed to secure debt from Garrett to Mortgage Matters was executed on February 1,1990, and filed of record on February 19,1990. On February 9, Baggarly prepared a modification agreement to the loan to include an amount previously held in escrow and allowed Frances Garrett to sign Garrett’s name, and he notarized the signature as Garrett’s execution even though it was not. Baggarly then gave Frances Garrett the check although there was no oral or written authorization by Garrett for her to receive such check. Frances Garrett then forged Garrett’s name to the check, which she deposited in the savings account of her mother, Manas. Garrett did not know that Frances Garrett had gotten the check until Baggarly called on February 20, 1990, to check to see if he had received the check for $10,315, but Garrett took no action at that time.

Not until October 31,1994, did Garrett sue Fleet Finance, Akers, Baggarly, Frances Garrett, and Manas for fraud and to set aside the deed to secure debt.

Case No. A01A2018

1. Garrett contends that the trial court erred in finding that the statute of limitation had run because the transaction was tainted with fraud which tolled the running of the statute under Beach v. Ocwen Fed. Bank, 523 U. S. 410 (118 SC 1408, 140 LE2d 566) (1998). We do not agree.

(a) Under the Truth in Lending Act, 15 USCS §§ 1601 through 1607 (e) (1994) (as amended), any deed to secure debt or mortgage had to be rescinded in writing within three days. See 15 USCS § 1635 (a); 12 CFR § 226.15 (a) (2), (3) (1997). Further, any claim based upon rescission under the Act is extinguished three years after the closing of the loan, i.e., ceases to exist as a statute of repose instead of being barred by a statute of limitation.

An obligor’s right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first, notwithstanding the fact that the information and forms required under this section or any other disclosures required under this chapter have not been delivered to the obligor.

15 USCS § 1635 (f) (1994); see Beach v. Ocwen Fed. Bank, supra at 412. “[Section] 1635 (f) completely extinguishes the right of rescission at the end of the 3-year period.” Id. at 412.

[The debtor contended that] § 1635 (f) is a statute of limitation governing only the institution of suit and accordingly has no effect when a borrower claims a § 1635 right of rescission as a “defense in recoupment” to a collection action. They are, of course, correct that as a general matter a defendant’s right to plead “recoupment,” a defense arising out of some feature of the transaction upon which the plaintiff’s action is grounded, survives the expiration of the period provided by a statute of limitation that would otherwise bar the recoupment claim as an independent cause of action. So long as the [lender’s] action is timely, a [debtor] defendant may raise a claim in recoupment even if he could no longer bring it independently, absent the clearest congressional language to the contrary. As we have said before, the object of a statute of limitation in keeping stale litigation out of the courts would be distorted if the statute were applied to bar an otherwise legitimate defense to a timely lawsuit, for limitation statutes are aimed at lawsuits, not at the consideration of particular issues in lawsuits. . . . Section 1635 (f), however, takes us beyond any question whether it limits more than the time for bringing a suit, by governing the life of the underlying right as well. The subsection says nothing in terms of bringing an action but instead provides that the right of rescission under the Act shall expire at the end of the time period. . . . It is useful to look ahead to § 1640 with its provisions for recovery of damages. Subsection (e) reads that the 1-year limit on actions for damages does not bar a person from asserting a violation of this subchapter in an action to collect the debt which was brought more than one year from the date of the occurrence of the violation as a matter of defense by recoupment or set-off in such action, except as otherwise provided by State law. 15 USC § 1640 (e). Thus the effect of the 1-year limitation provision on damages actions is expressly deflected from recoupment claims. . . . Thus, recoupment of damages and rescission in the nature of recoupment receive unmistakably different treatments, which under the normal rule of construction are understood to reflect a deliberate intent on the part of Congress. . . . Congress may well have chosen to circumscribe that risk, while permitting recoupment damages regardless of the date á collection action may be brought.

(Citations and punctuation omitted.) Id. at 415-419. Garrett brought this action for damages and to rescind the deed to secure debt, which under the Act is barred. Garrett did not assert a defense of set-off and recoupment to an action to collect the debt but set forth causes of action. Thus, any action must be under Georgia law.

(b) Tortious damage to property is governed by OCGA § 9-3-30 which requires all such actions to be commenced prior to the four-year statute of limitation including fraud. See Mitchell v. Jones, 247 Ga. App. 113, 116-118 (3) (541 SE2d 103) (2000). On October 31, 1994, Garrett filed his complaint more than four years after the alleged fraud occurred in February 1990, which would result in the statute of limitation attaching to bar any action.

(c) Garrett contends that fraud prevented him from discovering that the deed to secure debt had not been orally rescinded. However, Garrett had copies of the notice of the right to rescind, which he could have had read to him within the three days for written rescission if he had exercised ordinary care for his own protection. Further, the repeated telephone calls between February 6 and February 9, 1990, for him to come pick up the note should have put him on reasonable inquiry that there had been no rescission. Finally, when Baggarly called on February 20, 1990, to inquire if Garrett had received the check picked up by his wife, such communication should have given him actual notice that there had been no rescission of the loan.

The conduct that Garrett contends caused him not to bring suit earlier does not come within the tolling provisions. OCGA § 9-3-96; Costrini v. Hansen Architects, 247 Ga. App. 136, 138 (2) (543 SE2d 760) (2000). “If the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.” OCGA § 9-3-96.

[T]he fraud in question is not that which gives a cause of action, but that which conceals a cause of action. To constitute concealment of a cause of action so as to prevent the running of limitations, some trick or artifice must be employed to prevent inquiry or elude investigation, or to mislead and hinder the party who has [a] cause of action from obtaining information, and the acts relied on must be of an affirmative character and fraudulent.

(Citations and punctuation omitted.) Turner v. Butler, 245 Ga. App. 250, 252-253 (2) (537 SE2d 703) (2000) (cert. granted); Costrini v. Hansen Architects, supra at 138.

The record is devoid of any evidence that either Fleet Finance or Baggarly affirmatively concealed or hindered or prevented Garrett from discovering either that the loan had to be rescinded in writing, that Garrett’s attempt at oral rescission had not been successful, or that Frances Garrett and Manas had received the loan proceeds and had forged his name to the check. See Costrini v. Hansen Architects, supra at 138. Thus, the grant of summary judgment was proper. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2. Garrett contends that the trial court erred in failing to find that Baggarly was acting as Fleet Finance’s agent and that it was a creditor under the Truth in Lending Act. We do not agree.

Baggarly acted as a closing attorney for Mortgage Matters, which is a legal relationship as attorney-client. There is no competent evidence that he represented Fleet Finance in an attorney-client relationship, which would have made him its fiduciary agent rather than Mortgage Matters’ attorney or created a conflict of interest. A closing attorney has a fiduciary relationship as agent with his client. See In the Matter of Allen, 268 Ga. 752, 753 (493 SE2d 706) (1997).

The relationship of attorney-client may be expressly created by written contract, or may be inferred from the conduct of the parties. Although generally, the test of employment is the fee, the basic question in regard to the formation of the attorney-client relationship is whether it has been sufficiently established that advice or assistance of the attorney is both sought and received in matters pertinent to his profession.

(Citations and punctuation omitted.) Huddleston v. State, 259 Ga. 45, 46-47 (1) (376 SE2d 683) (1989).

At a loan or real estate closing, the closing attorney acts only as agent for the client or clients who retained him. See Legacy Homes v. Cole, 205 Ga. App. 34, 35 (421 SE2d 127) (1992); Driebe v. Cox, 203 Ga. App. 8, 9 (1) (416 SE2d 314) (1992); Carmichael v. Barham, Bennett, Miller &c., 187 Ga. App. 494, 495-496 (370 SE2d 639) (1988); Guillebeau v. Jenkins, 182 Ga. App. 225, 229-230 (1) (355 SE2d 453) (1987). Where there is a lender and a borrower and the closing attorney was retained by the lender, the closing attorney represents only the lender. See Williams v. Fortson, Bentley & Griffin, 212 Ga. App. 222 (441 SE2d 686) (1994); Richard v. David, 212 Ga. App. 661 (442 SE2d 459) (1994). Even the selection of the attorney and payment of the attorney fees under the terms of the sales contract do not create an attorney-client relationship when the attorney represents the lender, because professional standards regarding conflict of interest prohibit such conflicting multiple representations. See 238 Ga. 777 (EC 5-1), 780-782 (EC 5-14 through EC 5-20), 785-786 (DR 5-105), 825-826 (Standards 35 through 39); Legacy Homes v. Cole, supra at 35; Guillebeau v. Jenkins, supra at 229-231. Thus, the existence of an attorney-client relationship is a matter governed by professional legal standards. Code of Professional Responsibility, 238 Ga. 747-832 (1977); see also Guillebeau v. Jenkins, supra at 229-230.

Garrett, in opposition to the motions for summary judgment, submitted the affidavit of a nonlawyer who by experience qualified as an expert in lending practices. The expert rendered the opinion that the assignee of a mortgage was the true lender and not the broker in whose name the mortgage was taken and that the closing attorney was the agent of the assignee. Therefore, any expert opinion as to the attorney-client relationship as to agency by a nonlawyer is beyond the education, skill, and knowledge of a nonlawyer. The trial court can accept or reject the qualifications of an expert witness or the opinion of an expert outside the area of their expertise. Therefore, the trial court properly did not consider the opinion of a nonlawyer regarding the existence, nonexistence, or conflict of interest of agency arising from the attorney-client relationship.

Further, the Truth in Lending Act defines the “creditor” as a person who both

(1) regularly extends, whether in connection with loans, sales of property or services, or otherwise, consumer credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, and (2) is the person to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of indebtedness

or “[a]ny person who originates 2 or more mortgages referred to in subsection (aa) in any 12-month period or any person who originates 1 or more . . . mortgages through a mortgage broker shall be ... a creditor for purposes of this title.” 15 USCS § 1602 (f). Subsection (aa) reads in part: “[a] mortgage referred to in this subsection means a consumer credit transaction that is secured by the consumer’s principal dwelling, other than a residential mortgage transaction, a reverse mortgage transaction, or a transaction under an open end credit plan.” 15 USCS § 1602 (aa) (1). Both a broker and lender are classified as creditors. McGowan v. Credit Center of North Jackson, 546 F2d 73 (5th Cir. 1977). A home improvement contractor and the lender are statutory creditors under the Act. Sosa v. Fite, 498 F2d 114 (5th Cir. 1974). However, 15 USCS § 1631 (a) mandates that, where multiple creditors are involved in the loan transaction, only one creditor must make the disclosures required. Assignees of mortgages come within a separate section recognizing the legal significance under state law of the assignment of the debt.

Except as otherwise specifically provided in this title, any civil action for a violation of this title or proceeding under [15 USCS § 1607] which may be brought against a creditor may be maintained against any assignee of such creditor only if the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement, except where the assignment is involuntary. For the purpose of this section, a violation apparent on the face of the disclosure statement includes, but is not limited to (1) a disclosure which can be determined to be incomplete or inaccurate from the face of the disclosure statement or other documents assigned, or (2) a disclosure which does not use the terms required to be used by this title.

15 USCS § 1641 (a). However, nothing in the Truth in Lending Act treats the lender or broker and the assignee as one and the same so that the lender’s closing attorney becomes the agent of the assignee; the Act merely treats both as creditors. See generally Ford Motor Credit Co. v. Cenance, 452 U. S. 155 (101 SC 2239, 68 LE2d 744) (1981), on remand, Cenance v. Bohn Ford, Inc., 666 F2d 97 (5th Cir. 1982).

Decided October 15, 2001.

William A. Wehunt, for appellant.

Paul, Hastings, Janofsky & Walker, John G. Parker, Eric J. Taylor, for appellee (case no. A01A2018).

Drew, Eckl & Farnham, James M. Poe, Lisa S. Higgins, Sean W. Conley, for appellee (case no. A01A2019).

Case No. A01A2019

3. Garrett contends that the trial court erred in finding that the statute of limitation had run, because Baggarly’s fraud tolled it. These two enumerations of error are controlled by Divisions 1 and 2.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.


author: Smith, Presiding Judge.

text:
    A01A1009.
    BOWEN BUILDERS GROUP, INC. et al. v. REED.
    (555 SE2d 745)
   Smith, Presiding Judge.

Bowen Builders Group, Inc. and Appco Enterprises, Inc. (collectively “Bowen”), real estate developers, brought suit against Bobby Reed for breach of a real estate purchase and sale contract. Bowen alleged that Reed had breached provisions of the contract providing that all 43 lots sold by Reed would be “buildable lots” and that he would construct a playground on one lot. Reed raised several defenses and denied the breach, but his primary defense was that he was not the real party in interest, not being a party to the contract. After a bench trial, the trial court entered an order awarding judgment to Reed, and Bowen appeals. We find that Reed was a party to the contract, but that this is not dispositive of the issue of personal liability on the contract. Because the evidence at trial was in conflict regarding whether the parties intended that Reed be liable on the contract personally, and the trial court apparently found Reed’s testimony more credible than that of Bowen, we affirm the judgment below.

The real estate sales contract does not mention the names of the parties in the body of the contract, simply referring to the parties as the “undersigned buyer” and the “undersigned seller.” The signature lines consist of lines for the respective signatures over lines for printing or typing the names of the parties. The signatures of the principals in the two appellant corporations appear over the names of the corporations (although, as pointed out by the trial court, the name of Bowen Builders Group, Inc., or BBG, is barely legible). The line under Reed’s signature, however, is blank.

OCGA § 11-3-402 (b) (2) provides, in pertinent part:

[I]f the form of the signature does not show unambiguously that the signature is made in a representative capacity or the represented person is not identified in the instrument, the representative is liable on the instrument to a holder in due course that took the instrument without notice that the representative was not intended to be liable on the instrument. With respect to any other person, the representative is liable on the instrument unless the representative proves that the original parties did not intend the representative to be liable on the instrument.

The instrument clearly was not signed in a representative capacity, nor was Bobby Reed Builders, Inc. named in the instrument, and Bowen is not a holder in due course. Under this Code section, Reed therefore is liable personally unless he proved at trial that all parties intended for him not to be liable.

We turn, then, to the evidence presented at trial. Reed testified that he was a developer and house builder and did septic tank work and grading. He was employed by Reed Builders, which had been in business since 1981. His corporation, Reed Builders, had owned the property in issue and sold it to Bowen. He testified that Reed Builders had sold property before to Scott Appling, the sole shareholder in Appco. The warranty deeds, which were introduced into evidence, show clearly that the property was sold by Reed Builders, as do the memorandum of closing and the settlement statement.

Appling testified that he had been an acquaintance of Reed for seven or eight years and “had known him very well for . . . three or four years.” He testified that when the agreement was executed, “there was no talk of” Reed executing it on behalf of his corporation. When asked what his understanding was of “who was actually selling these lots to Appco and Bowen Builders,” he replied, “I understood it to be Bobby Reed.” He testified that Reed told him he would sell him the lots and he had “no way of .knowing, other than when he signs his name Bobby Reed and he’s selling me a piece of property, that he’s not the owner.” Appling admitted he had worked for Reed, but he testified he had worked for South Hall Builders, rather than Reed Builders. He also testified that although Reed’s corporations did grading for the development, the payments were made to Reed Grading & Septic Tank, rather than Reed Builders.

Decided October 17, 2001.

Mills & Moss, David C. Moss, for appellants.

Shawn D. Stafford, Timothy W. Hoffman, for appellee.

Given this conflicting evidence regarding the understanding of the parties, to determine the parties’ intentions about Reed’s personal liability it was necessary for the trial court, as the trier of fact, to weigh the credibility of the witnesses. The trial court’s order does not reflect its reasoning on this issue. We could remand this case to the trial court to clarify its order, but we find that such a remand is unnecessary. Regardless of whether Reed was or was not a party to the contract, the dispositive issue is the intention of the parties, which is a matter of choosing between witnesses’ conflicting testimony. The trial court’s order implies a finding that the trial court, as the trier of fact, found incredible Bowen’s claim that it was dealing only with Reed personally, given that the sale itself, as evidenced by the closing documents as well as the warranty deeds, was clearly from Reed Builders, as seller.

On appeal, we must construe the evidence most strongly to support the judgment. It is not our function to weigh the evidence or judge the witnesses’ credibility. Sanders v. Cowart, 231 Ga. App. 303, 304 (2) (499 SE2d 103) (1998). It is the function of the trier of fact to resolve any conflicts in the testimony of witnesses. We cannot substitute this court’s judgment for that of the trier of fact. Camp v. EMSA, Ltd., 238 Ga. App. 482, 484 (518 SE2d 482) (1999). The trial court obviously determined that, given the other evidence, Reed’s testimony was more credible and that the parties intended that Reed not be personally liable on the contract even though he did not sign it in a representative capacity. We will not substitute our judgment for that of the trial court. We therefore affirm the judgment.

Judgment affirmed.

Barnes and Phipps, JJ, concur.


author: Barnes, Judge.

text:
    A01A1151.
    RODRIGUEZ v. NUNEZ.
    (555 SE2d 514)
   Barnes, Judge.

The administrator of an estate, Father Isaias Rodriguez, appeals the grant of summary judgment to a minor child who sued in superior court to establish that the decedent of the estate was her father. He argues (1) that the trial court erred in dismissing his notice of appeal on jurisdictional grounds; (2) that he was entitled to appeal the summary judgment directly rather than by application for discretionary appeal; (3) that the trial court did not have jurisdiction to determine paternity under OCGA § 19-7-40; and (4) that the trial court erred in granting summary judgment on the merits.

We hold that the trial court did not have jurisdiction to dismiss the direct appeal, that the summary judgment was directly appealable, and that the plaintiff failed to state a claim for relief pursuant to OCGA § 19-7-40 et seq., the “Determination of Paternity” article of the “Parent and Child Relationship Generally” chapter of the “Domestic Relations” title of the Code. The appellant’s enumeration of error regarding the merits of the summary judgment is therefore moot.

Mario Adolfo Rivas died in a motor vehicle accident on March 9, 1997. He was unmarried and intestate. Father Rodriguez petitioned the Probate Court of Carroll County in March 1998 for letters of administration, indicating that Rivas’ mother and two sisters were his only heirs and had selected him to serve as administrator. The probate court granted the petition a month later. As administrator, Rodriguez filed a wrongful death suit in June 1998 in Fulton County State Court against the other driver in the automobile collision.

Almost a year later, in May 1999, Sandra Elizabeth Echeverría Nunez, as the natural mother and guardian of Hilda Catalina Rivas (Hilda), petitioned the probate court to revoke Rodriguez’s letters of administration, asserting that Hilda is the daughter and only child of the decedent. The probate court entered an order that day directing Rodriguez to show cause why his letters of administration should not be revoked. The only other evidence in the record regarding the probate court action is Rodriguez’s October 19, 1999 motion to dismiss the petition for revocation of his letters, but no order on the motion appears and both parties agree that the revocation petition remains pending in the probate court.

Meanwhile, on October 15, 1999, Nunez filed a “Complaint for Determination of Paternity” in Carroll County Superior Court, in her capacity as Hilda’s next friend and guardian against Rodriguez in his capacity as the administrator of Rivas’ estate. She alleged in the complaint that Rivas’ estate was created in the Carroll County Probate Court, that Rodriguez resides in Georgia, and that he was subject to the jurisdiction of the Carroll County Superior Court by virtue of his capacity as the estate administrator. She further asserted that Hilda was the estate’s sole heir pursuant to OCGA § 53-2-1 (b), that she was entitled to select the estate administrator under OCGA § 53-6-20, and that the superior court had “exclusive jurisdiction over the issue of paternity in Georgia pursuant to OCGA § 19-7-40.” Nunez prayed for a declaration pursuant to OCGA § 19-7-49 (a) that Rivas was Hilda’s father and an order “requiring genetic testing of the decedent and Plaintiff pursuant to OCGA §§ 19-7-43, 19-7-45, and 19-7-46.” Rivas, who was in Georgia on a work visa when he died, is buried in Guatemala City, Guatemala, which is the domicile of Nunez and her daughter Hilda.

Rodriguez answered and moved to dismiss the complaint, asserting among other affirmative defenses that Nunez failed to state a claim or cause of action upon which relief could be granted and that the probate court, not the superior court, had jurisdiction to determine Rivas’ heirs. Nunez responded to the motion, then moved for summary judgment, tendering copies of numerous Guatemalan documents and translations, family pictures, letters, and pleadings from the federal case. Rodriguez opposed the motion, arguing the merits and incorporating by reference all pleadings in the file.

The trial court granted summary judgment to Nunez. In its order, the trial court held that “Hilda Catalina Rivas is the natural daughter of the decedent, Mario Adolfo Rivas [,] based upon the decedent’s signature appearing on Hilda Catalina Rivas’ certified birth certificate pursuant to OCGA § 19-7-46.1, and the defendant[’]s failure to rebut this presumption with any admissible evidence.”

Rodriguez filed a timely notice of direct appeal, but Nunez moved in the trial court to dismiss the appeal because it was a domestic relations matter that should have been brought by application for discretionary appeal. The trial court agreed and dismissed Rodriguez’s appeal. From this order of dismissal Rodriguez then filed an application for discretionary appeal, but because the dismissal of an appeal by the trial court is subject to direct appeal, we granted the application. See OCGA § 5-6-35 (j). Rodriguez then filed his notice of appeal, and the case is thus before us for consideration.

1. This case is properly before us because the dismissal of an appeal by the trial court is subject to direct appeal. Brown v. E.I. du Pont de Nemours & Co., 240 Ga. App. 893, 894 (1) (525 SE2d 731) (1999).

2. Rodriguez contends that the trial court erred in dismissing his appeal. “Those circumstances under which a trial court may properly dismiss an appeal are strictly limited.” Castleberry’s Food Co. v. Smith, 205 Ga. App. 859, 860 (1) (424 SE2d 33) (1992). Those circumstances include causing an unreasonable delay in having the transcript prepared, the record transmitted, or costs paid, OCGA § 5-6-48 (c), when no final judgment has been entered and no certificate of immediate review obtained, Jones v. Singleton, 253 Ga. 41, 42 (1) (316 SE2d 154) (1984), or when the appeal becomes moot. Attwell v. Lane Co., 182 Ga. App. 813, 814 (1) (357 SE2d 142) (1987). In Castle-berry’s Food Co. v. Smith, supra, however, we held a trial court had no authority to dismiss an application for discretionary appeal because it should have been a direct appeal. “We are not willing to construe legislation so broadly as to divest ourselves of the responsibility for delineating the scope of appellate jurisdiction pursuant to OCGA § 5-6-35, and to place that responsibility on overburdened trial courts.” Id. at 860 (1). Therefore, the trial court erred in dismissing Rodriguez’s appeal.

3. We next consider Nunez’s argument that we have no jurisdiction to consider the grant of summary judgment, because Rodriguez filed a direct appeal of the trial court’s grant of summary judgment to Nunez. Nunez argues the appeal should have been by discretionary application, citing cases in which we have held that “[ajppeals arising out of paternity petitions are domestic relations cases which require compliance with the discretionary appeal procedure of OCGA § 5-6-35.” Brown v. Dept. of Human Resources, 204 Ga. App. 27 (418 SE2d 404) (1992); see also Smoak v. Dept. of Human Resources, 221 Ga. App. 257 (471 SE2d 60) (1996). We must read these cases in context, however, and recognize that they involve actions against a father or putative father for child support.

The facts of this case are closer to those in Families First v. Gooden, 211 Ga. App. 272 (439 SE2d 34) (1993), involving a declaratory judgment action to determine which man had the right to consent to a child’s adoption. The appellee moved to dismiss that appeal on the ground that it involved a paternity case subject to the discretionary appeal procedures in OCGA § 5-6-35. We did not agree that the case was “an appeal of a paternity case. While one issue involves paternity, it is ancillary to more significant issues in this appeal.” Id. at 274 (1). Similarly, the paternity issue in the case before us is ancillary to the more significant issues of estate administration and .inheritance, which do not fall under OCGA § 5-6-35 (a) (2). The propriety of the trial court’s grant of summary judgment to Nunez is therefore properly before us on direct appeal.

Moreover, the fact that Nunez asserted this was a claim under OCGA § 19-7-40 et seq. does not make it so. There is no magic in the title given to her complaint; under our rules of pleading, it is substance and not mere nomenclature that controls. Anderson v. Bruce, 248 Ga. App. 733, 736 (2) (548 SE2d 638) (2001); Manning v. Robertson, 223 Ga. App. 139, 142 (2) (476 SE2d 889) (1996).

Further, not all appeals involving a child’s relationship with her parents are subject to the discretionary appeal procedures. For example, a final order in a deprivation proceeding is not a “child custody” order subject to the discretionary appeal process, because the issue is primarily whether the child is deprived, and only secondarily where she will be placed. In the Interest of J P., 267 Ga. 492, 493 (480 SE2d 8) (1997). “Domestic relations” cases are subject to the discretionary appeal process “[w]here the underlying subject matter, i.e., the issues sought to be appealed, clearly arises from or is ancillary to divorce proceedings, or is derived from a marital relationship and divorce.” (Punctuation omitted.) Id. This is not one of those cases.

4. Before reaching the merits of the summary judgment grant, we consider whether the trial court should have granted Rodriguez’s motion to dismiss for failure to state a claim under OCGA § 19-7-40 et seq. “A trial court should grant a motion to dismiss . . . when, assuming the allegations in the complaint are true, the plaintiff would not be entitled to any relief under the facts as stated and the defendant demonstrates that the plaintiff could not introduce evidence that would justify granting the relief sought. Our review is de novo.” (Footnotes omitted.) Moore v. BellSouth Mobility, 243 Ga. App. 674 (534 SE2d 133) (2000).

Nunez brought her complaint against estate administrator Rodriguez pursuant to the paternity statutes, OCGA § 19-7-40 et seq. The Supreme Court of Georgia, while considering whether the paternity statutes violated principles of equal protection, recently clarified that “[o]ur paternity statutes were enacted to deal with the problem of defaulting fathers.” Palmer v. Bertrand, 273 Ga. 475 (541 SE2d 360) (2001).

The paternity statutes recognize the intrinsic differences in the circumstances of fathers and mothers of illegitimate children. Indeed, such statutes have eliminated the gender-based discrimination of the common law, which placed a duty of support on the mother, but not on the father. The very purpose of those statutes is to establish the father’s duty of child support. OCGA § 19-7-49 (a).

(Citation omitted; emphasis supplied.) Id. at 476.

In fact, the paternity article is contained within the title “Domestic Relations” and the chapter “Parent and Child Relationship Generally.” This case clearly does not involve “domestic relations” or family law, because the putative father is not alive, and includes no issues of child support, adoption, custody, or visitation. The probate court has jurisdiction to determine paternity when the issue arises in the context of inheritance; for one thing, OCGA § 53-2-3 specifically governs the rights of inheritance of a child born out of wedlock, within the title “Wills, Trusts, and Administration of Estates” and the chapter “Descent and Distribution.” See, e.g., In re Estate of Slaughter, 246 Ga. App. 314 (540 SE2d 269) (2000).

To consider the matter from another angle, if Nunez sought to establish her ward’s right to inherit from anyone other than a putative father, such as a grandfather or cousin or sibling, the proper forum to decide the issue would clearly be the probate court. No parallel system exists to determine fraternity, for example, in the superior court rather than the probate court, and it is illogical to place this issue within the framework of OCGA § 19-7-40 et seq. simply because the decedent is the putative father rather than, say, the putative brother or any other relative. Nunez could not recover on her complaint for a determination of paternity pursuant to OCGA § 19-7-40 et seq. under any conceivable set of facts, because that statute is not the proper vehicle to resolve the descent and distribution issues involved.

Decided October 17, 2001

Smolar, Roseman, Brantley & Seifter, Yehuda Smolar, G. Grant Brantley, Antoinette D. Johnson, Douglas J. Davis, for appellant.

Alembic, Fine & Callner, Seth A. hitman, G. Michael Banick, Michael K. Watson, for appellee.

While Nunez asserts in her brief that the probate court stayed action on the petition to revoke Rodriguez’s letters of administration and that Rodriguez consented to the stay, no evidence of those facts appears in the record. The record does show, however, that Rodriguez raised the affirmative defense of failure to state a claim in his superior court answer and motion to dismiss.

The probate court has exclusive jurisdiction over this matter. OCGA § 15-9-30 (a) (10); Heath v. Sims, 242 Ga. App. 691, 692 (1) (531 SE2d 115) (2000) (“[P]róbate courts have ‘original, exclusive, and general jurisdiction’ of ‘all. . . matters and things as appertain or relate to estates of deceased persons.’ ”). Therefore, we vacate the judgment of the superior court, remand this case, and direct the trial court to dismiss Nunez’s complaint without prejudice.

5. Rodriguez’s remaining argument on the merits of the summary judgment is rendered moot in light of Division 4.

Judgment vacated and case remanded with direction.

Smith, P. J., and Phipps, J., concur.

       Nunez had filed a wrongful death action in the U. S. District Court for the Northern District of Georgia on February 2, 1999. Rodriguez intervened, and the trial court stayed discovery on August 16, 1999, until further order.


text:
    A01A1204.
    A01A1205.
    WALTER CHAMPION COMPANY v. DODSON. DODSON v. WALTER CHAMPION COMPANY et al.
    (555 SE2d 519)
   Smith, Presiding Judge.

After an intentionally set fire destroyed the inventory and office furnishings of her business, Donna Dodson filed this action against several defendants, including Walter Champion, Jr., who was the owner of the warehouse in which she leased space, and one of the other two tenants of the building, Walter Champion Company (WCC). The case was tried to a jury, and the trial court granted a directed verdict to Champion on all claims and to WCC on all claims except Dodson’s claim for negligent retention of an employee. The jury reached a verdict in Dodson’s favor, awarding her damages of $60,000. Following the denial of WCC’s motion for judgment notwithstanding the verdict and Dodson’s motion for new trial, WCC and Dodson appeal. WCC contends that the trial court erred in denying its motion for directed verdict on the negligent retention claim and that the trial court’s charge on negligent retention was erroneous. Dodson cross-appeals, arguing that the trial court erred in granting a directed verdict to Champion on all claims and that sufficient evidence was presented to permit the jury to consider all of her allegations against WCC.

In WCC’s appeal, we reverse. We agree with WCC that the evidence presented at trial did not support any claim for negligent retention. In Dodson’s appeal, we affirm in part and reverse in part. Although we cannot conclude that the record supports Dodson’s remaining claims of liability against WCC, we conclude that the evidence raised issues of fact concerning Dodson’s claim that Champion breached his duty to maintain the warehouse in a safe condition. We therefore affirm in part and reverse in part.

Dodson owned an industrial supply company and leased office space in a building owned by Champion. Champion owned WCC before selling it to Bob Ford, Jeff Ford, and Jay Clark in 1992. After the sale of the business, WCC also leased warehouse and office space from Champion. WCC subsequently allowed Dodson to store her inventory in a portion of the warehouse located behind her office. Dodson testified that WCC needed the space she was using as an office and, in exchange for her agreement to move her office to another part of the building, WCC allowed her to store her inventory in a portion of the warehouse. It is undisputed that Sherry Derryberry, a bookkeeper previously employed by Champion and retained by WCC, intentionally set fire to the building in an apparent effort to cover up her theft from the company.

Dodson filed this action against Champion and WCC, among others, claiming that by allowing her to store her inventory in the warehouse, Champion and WCC assumed a duty to exercise ordinary care to keep the inventory safe. She alleged that this duty included an obligation to insure the inventory and equipment against loss. Whether WCC negligently retained Derryberry became another issue at trial.

1. In Case No. A01A1204, WCC argues that the trial court erred in denying its motion for directed verdict on the negligent retention claim. We agree.

To show that an employer was negligent in retaining an employee “with violent and criminal propensities,” a plaintiff must show that the employer “knew or should have known of those dangerous propensities alleged to have resulted in [the plaintiff’s] injuries.” Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876, 880 (3) (298 SE2d 600) (1982). See also Bunn-Penn v. Southern Regional Med. Corp., 227 Ga. App. 291, 294 (2) (488 SE2d 747) (1997).

Dodson contends that the owners of WCC knew about prior thefts committed by Derryberry while employed by Champion and that this knowledge.rendered her violent act of setting fire to the building foreseeable. This theory fails on two grounds. First, the record does not show that the owners of WCC had knowledge that Derryberry had committed any thefts against the company. It is true that Champion testified that while in his employ, Derryberry had failed to pay back a loan he had made to her and that she attempted to steal some cash but was caught. Also, it is not disputed that he planned to terminate her when he sold the company to WCC but that the new owners “chose to keep her on.” The record does not show, however, that the new owners knew about the attempted thefts before they purchased the company or that they otherwise had any knowledge before they chose to retain her that Derryberry had taken any money from the company. In fact, one owner testified that “we would trust [Derryberry] with our last dollar.” We also note Dodson’s testimony that she did not know at the time of the fire “that [Derryberry] had been a dishonest employee.”

But even assuming, without deciding, that the new owners somehow may have had knowledge that Derryberry had attempted to steal money from the company before they retained her as an employee, we cannot agree that this knowledge made Derryberry’s destruction of the building foreseeable and that this knowledge was the proximate cause of Dodson’s damages. A plaintiff asserting a claim of negligent retention must show the employer’s knowledge that an employee was likely to commit the particular tortious act that allegedly resulted in the plaintiff’s damages: “An employer’s liability for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee’s propensity to engage in the conduct which caused the plaintiff’s injury. Proof of such leaning must consist of evidence substantially related to the injury-causing conduct” (Punctuation and footnotes omitted; emphasis supplied.) Harper v. City of East Point, 237 Ga. App. 375, 376 (2) (515 SE2d 623) (1999).

Knowledge of prior attempted thefts of petty cash might have placed WCC on notice that Derryberry could be capable of further acts of dishonesty, but we cannot agree that these acts made Derryberry’s act of violence against the company foreseeable. We note that the owners, as well as Dodson, testified that they had never seen Derryberry act violently or destructively. And although Champion testified concerning Derryberry’s attempted thefts, he also testified that he had never seen her act in a way that would alert him that she might commit a violent act such as arson. Under these circumstances, we cannot conclude that the jury had any basis on which to determine that the fire was foreseeable. To hold that WCC was liable for the tortious acts of its employee simply because of knowledge that she attempted to steal petty cash would be the equivalent of a holding that the proximate causation requirement no longer exists in this state in negligent retention actions. See Edwards, supra at 880. The trial court erred in denying WCC’s motion for directed verdict on this claim. In light of this conclusion, WCC’s argument regarding the trial court’s instructions is moot.

2. In Case No. A01A1205, Dodson contends that the trial court erred in directing a verdict to WCC on the remaining claims and to Champion on all claims.

(a) Dodson argues that she presented sufficient evidence that Champion was negligent in failing to provide adequate fire protection for the warehouse. In particular, she maintains that the warehouse did not have a sprinkler system or an adequate fire wall. But Dodson’s claim of negligence based on Champion’s failure to provide a sprinkler system was not viable, as it appears that she knew the warehouse did not contain such a system when she stored her inventory there. Even assuming, without deciding, that this condition constituted a defect, “one who is familiar with the premises cannot rely for recovery upon the negligence of the defendant in failing to correct a patent defect where such party had . . . equal knowledge of its existence.” (Citations and punctuation omitted.) Morris v. Barnet, 191 Ga. App. 382, 383 (381 SE2d 597) (1989).

We reach a different conclusion, however, concerning Dodson’s contention that the building did not contain an adequate fire wall between the offices — where the fire originated — and the warehouse area. Evidence was presented that these areas were separated only by an eight-inch block wall, which Champion referred to as a fire wall. The insurance adjuster who investigated the fire testified that, depending on several factors, a properly constructed fire wall would prevent or minimize fire from spreading from one area to another. Evidence also was presented that the insured, WCC, was concerned that the wall did not contain the fire and that the wall contained several penetrations used for electrical and HVAC purposes.

Champion, as a landlord, was under the duty to maintain the warehouse in a safe condition. Denise v. Cannon, 219 Ga. App. 765, 766 (466 SE2d 885) (1995). “A landlord impliedly warrants that the rented premises are in good repair, and if by reason of a latent defect they are not, he is liable if he actually knew they were not in good repair or if by the exercise of ordinary care he could have discovered that they were not, if the defective condition is the proximate cause of the injury. [Cit.]” Id. Some evidence was presented that an adequate fire wall could have minimized the effects of a fire, and at least an inference was raised by the evidence that the alleged fire wall was inadequate for that purpose. Even though Derryberry started the fire, if an adequate fire wall could have eliminated or diminished Dodson’s damages, Champion “may be liable to the extent determined by the jury.” Id. at 767. A directed verdict is authorized “only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” (Citation, punctuation and emphasis omitted.) Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 831 (2) (386 SE2d 709) (1989). Because the record contains some evidence, although slight, in support of Dodson’s negligence claim against Champion, we conclude that the trial court erroneously granted a directed verdict in Champion’s favor.

(b) Although we conclude that Champion was not entitled to a directed verdict on Dodson’s negligence claim, we agree with WCC that a directed verdict was authorized in its favor on this claim. Dodson argues that she presented evidence concerning the lack of a sprinkler system and the inadequate fire wall in the warehouse and that as “the occupier of the property, [WCC] had a duty to inspect the premises to discover these dangerous conditions.” She correctly points out that when an occupier of land, by either express or implied invitation, induces another to come onto his premises for any lawful purpose, he is liable for damages for injuries caused by a failure to exercise ordinary care in keeping the premises safe. OCGA § 51-3-1. And the question of whether one is an “occupier of land” for the purpose of determining liability under this statute “depends on whether or not [the tenant] had control of the property, whether or not it has title thereto and whether or not it has a superior right to possession of property which is in the possession or control of another.” (Citations and punctuation omitted.) Ga. Bldg. Svcs. v. Perry, 193 Ga. App. 288, 295 (4) (a) (387 SE2d 898) (1989). While the written lease agreement between Champion and WCC was entered into evidence, these factors were not placed in issue at trial so that a jury could determine, for example, whether WCC had title or superior possession of the warehouse. Furthermore, Dodson’s argument ignores the obvious fact that she also was an “occupier,” in a general sense, and WCC never acted as a landlord. She submitted no evidence that WCC, as a cotenant, was obligated to attempt to make structural alterations to the building in an attempt to provide more fire protection to her than it provided for itself. Under these circumstances, we simply cannot conclude that the trial court erred in refusing to submit Dodson’s negligence claim against WCC to the jury.

Decided October 17, 2001.

Drew, Eckl & Farnham, Paul W. Burke, Andrew C. Matteson, for appellant.

Horton, Maddox & Anderson, Michael A. Anderson, for appellees.

Judgment reversed in Case No. A01A1204. Judgment affirmed in part and reversed in part in Case No. A01A1205.

Barnes and Phipps, JJ., concur.

       Dodson and Champion had only an oral lease, the terms of which addressed only rental amounts and the time space would become available.


text:
    A01A1243.
    FINLEY v. THE STATE.
    (555 SE2d 523)
   Smith, Presiding Judge.

A Floyd County grand jury indicted Steven D. Finley, Jennifer D. Throneberry, and Michael F. Verhoye II on two counts each of burglary, robbery, and aggravated assault. A jury acquitted Finley of one count of burglary and convicted him on the remaining counts. His motion for new trial was denied, and his motion for an out-of-time appeal was granted. He appeals, asserting two enumerations of error, and we affirm.

1. Finley first asserts a fatal variance in the indictment on the burglary count for which he was convicted, noting that Count 2 of the indictment alleged burglary of “Room 200, Stay Lodge, located at 2005 Dean Street,” while testimony at trial indicated that burglaries occurred at Rooms 216 and 220 of the Stay Lodge.

Finley relies upon State v. Green, 135 Ga. App. 622 (218 SE2d 456) (1975), “requiring specification in a burglary indictment of the particular business structure burglarized when that business operates from two or more locations in the county. [Cit.]” (Punctuation omitted.) Mobley v. State, 164 Ga. App. 154 (1) (296 SE2d 617) (1982). But this court has strictly limited the holding in Green to those circumstances in which a business owns more than one location within a county. Brown v. State, 250 Ga. App. 147, 149 (2) (550 SE2d 701) (2001) (incorrect street name not fatal variance); Jackson v. State, 217 Ga. App. 485, 490 (5) (458 SE2d 153) (1995) (physical precedent only) (incorrect street number not fatal variance). Nothing in the record suggests that the Stay Lodge owns more than one location in Floyd County or that the rooms were not located in the same “structure.” Moreover,

[t]he variance between the indictment and the proof did not misinform or mislead appellant in any manner that surprised him at trial or impaired his defense. Nor can he be subjected to another prosecution for the same offense. Accordingly, there was no fatal variance between the allegations and the proof. The trial court properly denied appellant’s motion for a directed verdict on this ground.

(Citation and punctuation omitted.) Brown, supra.

2. Finley also contends that there was insufficient corroboration of the testimony of his co-defendant Verhoye, but does so without pointing to any specific evidence he contends was insufficient.

A defendant may not be convicted of a felony on the uncorroborated testimony of an accomplice. However, it is not required that this corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular. Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict. The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it cannot be said, as a matter of law, that the verdict is contrary to the evidence.

(Punctuation and footnotes omitted.) Barnett v. State, 244 Ga. App. 585, 587 (2) (536 SE2d 263) (2000). Here, the testimony of Finley’s accomplice was corroborated by the testimony that proceeds of the robbery were found in Finley’s pocket and the testimony identifying Finley as an occupant of the getaway car after the police chased and stopped it. Finally, the other co-defendant gave a statement to police in which she established Finley’s presence at the scene of the assault and robbery, at the motel, and at the sale of the television. The testimony of one accomplice may be corroborated by the testimony of another accomplice. Arnold v. State, 243 Ga. App. 118, 121 (1) (532 SE2d 458) (2000). This evidence satisfies the slight evidence requirement necessary to corroborate the testimony of Verhoye.

Decided October 17, 2001.

Christopher G. Paul, for appellant.

Tambra P. Colston, District Attorney, Martha P. Jacobs, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       Verhoye was also charged with attempting to elude a police officer and reckless driving, and Finley was charged as a recidivist.

       As noted in Brown, supra at 149, n. 2, this decision, while originally physical precedent only, has been cited repeatedly with approval and without notation of its precedential status.