text:
    A90A1129.
    COLLINS v. JONES et al.
    (399 SE2d 546)
   Pope, Judge.

Appellees/plaintiffs William T. Jones, Charles McMillian, James M. Zeidler and Fresh & Fancy Produce, Inc. (hereinafter “plaintiffs”) brought this suit on a contract against appellant/defendant Charles C. Collins alleging that Collins had breached the contract by failing to disclose certain debts owed by the corporation. The contract between the parties was a settlement agreement terminating previous litigation between the parties whereby Collins sold back to the corporation and the other parties his stock in the corporation. Paragraph 6 of the settlement agreement read: “Plaintiffs [plaintiffs/appellees in this case] shall indemnify and hold harmless defendant COLLINS from any and all debts of FRESH AND FANCY PRODUCE, INC., including any accrued taxes, and PACA, liens or claims; provided however, that COLLINS warrants that no corporate assets have been pledged for any debt, not known to plaintiffs, nor has he obligated the corporation for any debt other than those incurred in the ordinary course of business.” Plaintiffs alleged that they were forced to pay two notes given by Fresh & Fancy Produce, Inc., and executed by Collins in his capacity as president of the corporation and that these debts had not been disclosed by Collins as was required by the settlement agreement. Further, they alleged that the two notes, one in favor of Collins’ wife in the amount of $25,000 and the other in favor of Collins’ attorney in the amount of $6,000, were not made in the ordinary course of the corporation’s business. The trial court, in a bench trial, found in favor of plaintiffs and Collins brings this appeal.

1. Collins argues the trial court erred in denying him trial by jury. Plaintiffs did not request trial by jury in their complaint nor did Collins make a jury demand in his answer. At the time plaintiffs stipulated the case to the active calendar for trial, they specifically requested a non-jury trial. Counsel for Collins was served with a copy of the stipulation on May 5, 1989. Paragraph eight of the stipulation provided: “Notice of objection to stipulation to A/L [active list] must be made within 10 days.” The record shows Collins’ request for a jury trial was not filed until the day of the previously scheduled bench trial, June 22, 1989. The trial court ruled that the jury request was interposed for delay and was not timely and denied the request.

“While the right to a jury trial is guaranteed, this right is subject to certain limitations. The right of trial by jury may be made dependent upon a timely demand or other conditions, which, though onerous, do not totally prostrate the right or render it wholly unavailable.” (Citations and punctuation omitted.) Tippins v. Winn-Dixie Atlanta, 192 Ga. App. 172, 173 (2) (384 SE2d 199) (1989). Collins’ jury demand, filed on the day of trial, was more than 30 days beyond the time allotted for objections to the stipulation to the active list for non-jury trial. Having failed to make a timely demand, Collins waived his right to trial by jury and the trial court did not err in denying his request.

2. Collins argues the trial court erred in finding the notes were not made in the ordinary course of business of Fresh & Fancy Produce, Inc. William Jones testified he was the secretary/treasurer of Fresh & Fancy Produce, Inc., and that Fresh & Fancy did not deal with either Collins’ wife or personal lawyer in the ordinary course of its business. Collins testified the notes were made to raise capital for the operation of the business and that this was normal. The plaintiffs denied they had any knowledge of the existence of the notes and the trial court found this to be a fact. Resolution of the question of whether the making of the notes was in the regular course of business was for the factfinder, here the trial court. On appeal this court considers only the sufficiency of the evidence, not its weight. Hawkins v. Grady County Bd. of Tax Assessors, 192 Ga. App. 416 (2) (385 SE2d 305) (1989). The record discloses sufficient evidence to support the trial court’s finding that the notes were not made in the ordinary course of business.

3. Collins argues the trial court erred in not allowing him to introduce the transcript of the settlement hearing into evidence and also erred in not allowing him to testify regarding his understanding of what the agreement provided. Neither of these arguments has merit. The settlement agreement signed by Collins contained a provision that stated the writing contained the entire agreement between the parties. Therefore, parol evidence regarding the intent of the parties was not relevant to the issue of whether the notes were made in the ordinary course of business.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.

Decided November 20, 1990

Rehearing denied December 4, 1990

McAllister & Roberts, J. Dunham McAllister, for appellant.

Sexton, Turner & Moody, William R. Moody, Jr., for appellees.


source: Caselaw Access Project

author: Sognier, Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    A90A1167.
    ERVIN v. ARNOLD.
    (399 SE2d 548)
   Sognier, Judge.

Theresa M. Ervin instituted an action against James R. Arnold, d/b/a Arnold Grading, to obtain a deficiency judgment following the repossession and sale of certain heavy equipment pledged as collateral for a loan. Arnold answered, alleging that Ervin had failed to comply with statutory notice requirements and had failed to dispose of the collateral in a commercially reasonable manner and accordingly was not entitled to recover. The case was tried before a jury and, after the close of evidence, the trial court granted Arnold’s motion for a directed verdict. Ervin appeals.

The evidence showed that appellee was a friend of appellant’s daughter. When he sought to start a grading business, appellant borrowed money herself and lent it to appellee. On January 31, 1986, appellee executed a promissory note in the amount of $59,706.37. The parties also entered into an agreement whereby the note was secured by certain heavy equipment purchased by appellee for use in the business. The equipment consisted of a 1975 Ford tractor, a 1942 Dorsey low-boy trailer, and a Caterpillar Crawler front-end loader. In November 1987, appellee ceased doing business as Arnold Grading, stopped making payments on the loan, and abandoned the equipment without informing appellant of its whereabouts. Sometime late in February 1988, appellant located the collateral which, after notifying appellee, she sold at private sale for a total of $25,000. After unsuccessful attempts to recover the deficiency balance, appellant instituted this suit.

1. Appellant first contends the trial court erred by directing a verdict for appellee based on its finding that appellee was not given proper notice of the sale. Appellant argues that the notice sent complies with the applicable statutory requirements. Although evidence established that the tractor and trailer, being “vehicles operated over the public highways and streets of this state and propelled by power other than muscular power,” see OCGA § 10-1-31 (a) (4), are “motor vehicles” within the meaning of the Motor Vehicle Sales Finance Act, OCGA § 10-1-30 et seq., and that the notice sent by appellant was not sent within ten days after repossession and did not specifically inform appellee of his right to redeem the collateral, both of which are required by OCGA § 10-1-36, compliance with OCGA § 10-1-36 was not required in disposing of this equipment because appellant is not engaged in the business of selling motor vehicles to retail buyers in retail installment actions, OCGA § 10-1-31 (a) (10), and thus was not subject to the notice requirements of OCGA § 10-1-36. The repossession at issue here was governed only by the UCC provision, OCGA § 11-9-504 (3).

In Emmons v. Burkett, 256 Ga. 855 (353 SE2d 908) (1987) the Supreme Court abolished the “absolute bar” rule of Gurwitch v. Luxurest Furn. Mfg. Co., 233 Ga. 934 (214 SE2d 373) (1975). Instead, the Supreme Court extended to all deficiency suits under the UCC in which adequacy of the notice or commercial reasonability of the sale is involved the “rebuttable presumption” rule, which was first set forth in Georgia for “adequacy of sale price” cases in Farmers Bank v. Hubbard, 247 Ga. 431 (276 SE2d 622) (1981). The notice sent by appellant complied with the requirements of OCGA § 11-9-504 (3), which governed here, and accordingly we agree with appellant that the trial court erred by granting a directed verdict to appellee based on its finding that the notice was insufficient.

2. Assuming, without deciding, that the sale was commercially unreasonable, appellant was not absolutely barred from pursuing a deficiency. Rather, under Emmons, supra, a presumption was raised that the value of the collateral sold was equal to the debt, requiring appellant to overcome that presumption by presenting evidence that the loader’s value was less than the debt in order to recover any balance. Appellant contends the trial court erred by finding that she did not do so.

We reverse. While it is true that proof of the sale price is not sufficient to overcome the presumption against the creditor, see Zohbe v. First Nat. Bank, 162 Ga. App. 604, 605 (292 SE2d 444) (1982), in the case sub judice, appellant presented evidence consisting of far more than a simple recitation of the sale price. Giddens v. Bo Lovein Ford, 167 Ga. App. 699 (1) (307 SE2d 271) (1983), cited by the dissent, is inapposite here because in Giddens “[ajppellee did not introduce any evidence of the fair and reasonable value of the collateral in order to overcome the presumption,” id. at 700 (1), (emphasis supplied), and accordingly, this court found that a directed verdict should have been granted in the debtor’s favor.

Appellant testified that appellee abandoned the equipment without notifying her of its location, and stopped making payments. Appellee’s last payment was in October 1987, and the abandoned equipment was not located by appellant until February 1988. She testified that the equipment was in poor condition when it was found. The loader was not operable — the battery was dead, the starter switches and reset buttons did not work, the bucket was cracked, belts were loose, cable harnessing was faulty and wiring needed replacing, cover plates and engine covers were missing, the idler roller needed replacement — and it was dirty and shabby. Appellant expended time and her own effort cleaning and repairing the equipment and moving it to a secure location. She then obtained bids from four people, knowledgeable as to the value of such equipment, including a neighbor who has a large farm in South Georgia, the owner of a fencing business, an electronic engineer, and the owner of a large lumber business who had experience with heavy equipment. Their bids ranged from $18,000 to $22,500, and the loader was sold to the highest bidder.

Although bids cannot be equated with considered opinions as to value, they generally do reflect the bidder’s opinion as to the value of the item, by indicating that the bidder believes the item is worth at least that amount, and thus are indicative of at least a general range of value. Appellant testified that she sought bids from people who handled this sort of equipment all the time, and relied on their bids to bring a fair price. She testified she did everything she could to get the most money for the equipment.

Appellant is not a commercial seller or lender, but an individual who herself obtained a bank loan against her personal savings in order to help out appellee, and she made extraordinary efforts to obtain the best price for the equipment after appellee abandoned it and refused to disclose its location. We find appellant’s evidence was sufficient to overcome the presumption that the value of the collateral was equal to the amount of the debt, and the trial court erred by granting a directed verdict in favor of appellee. See generally Ace Parts &c. v. First Nat. Bank, 146 Ga. App, 4, 5-6 (2) (245 SE2d 314) (1978). The issue of the deficiency balance should have gone to the jury.

3. Our holdings in Divisions 1 and 2 render it unnecessary that we address appellant’s remaining enumerations of error.

Judgment reversed and case remanded.

Carley, C. J., Deen, P. J., Banke, P. J., Birdsong, Pope and Beasley, JJ., concur. McMurray, P. J., and Cooper, J., dissent.

McMurray, Presiding Judge,

dissenting.

I must respectfully dissent as I would hold that the trial court was eminently correct in granting appellee Arnold’s motion for directed verdict and should be affirmed. Further, the majority overlooked the issue of whether the evidence was sufficient to overcome the presumption that the value of the tractor and trailer is equal to the debt.

“OCGA § 11-9-504 (3) (Code Ann. § 109A-9-504) requires that the disposition of collateral after default be commercially reasonable. Hubbard v. Farmers Bank, 155 Ga. App. 720 (272 SE2d 510) (1980), affirmed, Farmers Bank[, Union Point, Georgia] v. Hubbard, 247 Ga. 431 (276 SE2d 622) (1981). ‘Where the commercial reasonableness of a sale is challenged by the debtor, the party holding the security interest has the burden of proving that the terms of the sale were commercially reasonable and that the resale price was the fair and reasonable value of the collateral. The secured party must also prove the value of the collateral at the time of repossession and that the value of the goods does not equal the value of the debt. If this proof is not forthcoming, it is presumed that the value of the goods is equal to the amount of the debt. Granite Equip. Leasing Corp. v. Marine Dev. Corp., 139 Ga. App. 778 (230 SE2d 43) (1976).’ Richard v. Fulton Nat. Bank, 158 Ga. App. 595-596 (281 SE2d 338) (1981).” Giddens v. Bo Lovein Ford, 167 Ga. App. 699 (1) (307 SE2d 271).

In the case sub judice, the evidence showed that the collateral brought substantially less than the underlying debt. However, other than the sales price, the only evidence of the front end loader’s value was testimony that the equipment was in poor condition at the time of repossession and Ervin’s testimony that four bids, ranging from $18,000 to $22,500, were made for the loader and that the loader was sold to the highest bidder. The only evidence as to the value of the tractor and trailer was that the equipment was in poor condition at the time of repossession and that the sole bid of $2,500 was accepted for both the tractor and the trailer. It is my view that this is insufficient evidence to authorize a finding of fair and reasonable value in order to overcome the presumption that the collateral equaled the value of the debt.

“ ‘In establishing that the disposition was reasonable, the seller must affirmatively show that the resale price was the fair and reasonable value of the collateral. Failure to prove that the resale price was the reasonable value of the collateral at the time of repossession and that the value of the collateral did not equal the value of the debt results in a presumption that the resale price equaled the debt. Richard v. Fulton Nat. Bank, 158 Ga. App. 595 (281 SE2d 338) (1981); Granite Equip. Leasing Corp. v. Marine Dev. Corp., 139 Ga. App. 778 (1) (230 SE2d 43) (1976). ... In Zohbe v. First Nat. Bank, Cobb County, 162 Ga. App. 604 (1) (292 SE2d 444) (1982), the creditor presented testimony that three bids were taken on the repossessed property and that the highest bid was accepted. This was the only evidence offered by the creditor regarding value. The court in Zohbe reversed the trial court’s directed verdict in favor of the creditor holding: “Proof of the price brought at public sale is not sufficient to overcome the presumption against the creditor that the value of the collateral equals the debt on it. Foreclosure sales are forced sales and notoriously fail to bring the true market price of the article. Cost alone is never proof of market value. (Cit.)” Zohbe, supra at 605.’ Harrison v. Massey-Ferguson Credit Corp., 175 Ga. App. 752, 753-754 (334 SE2d 352) (1985).” (Emphasis supplied.) Walker v. Modnar Corp., 194 Ga. App. 68, 69 (389 SE2d 558).

In the case sub judice, the majority places great weight on evidence regarding the poor condition of the equipment at the time of repossession. However, it is my view that the condition of this equipment at the time of repossession is irrelevant since there was no evidence showing that the condition of the equipment substantially diminished its value. (The undisputed evidence shows that Arnold purchased the equipment “used” about two years before repossession, paying $32,400 for the loader, $5,500 for the trailer and $6,000 for the tractor. There is no evidence showing the condition of the equipment when Arnold purchased it and the evidence is undisputed that Ervin expended only $165.19 to repair the equipment for sale.)

Further, the majority states that the bids for the front-end loader were the same as “opinions as to the value of the loader.” I cannot adopt this position as it is my view that a bid for the purchase of equipment is not the same as an opinion of value. However, assuming that a “bid” is the same as an “opinion” of value, Ervin’s testimony regarding what the bidders were offering for the loader has no probative value.

“ ‘Opinion evidence as to the value of an item, in order to have probative value, must be based upon a foundation that the witness has some knowledge, experience or familiarity with the value of the property in question or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion. (Cits.)’ Sisk v. Carney, 121 Ga. App. 560, 563 (174 SE2d 456).” Bryant v. GMAC, 184 Ga. App. 323, 325 (2) (361 SE2d 529). In the case sub judice, the bidders did not testify and there was no direct evidence that the bidders had knowledge, experience or familiarity with the value of heavy equipment or that they had reasons for assessing the loader as bid. Instead, the majority concludes that the bidders were “knowledgeable as to the value of [the loader]” based on Ervin’s testimony regarding the bidders’ occupations, i.e., a farmer, the owner of a fencing business, an electronic engineer and the owner of a lumber business. While the individual bidder’s business credentials are impressive, there is nothing to indicate that their business experience qualifies them to testify as to the value of heavy equipment. It therefore follows that there was no competent evidence of the fair and reasonable value of the front-end loader, the tractor and the trailer at the time of repossession in order to overcome the presumption that the value of the collateral equaled the amount of the debt.

Decided November 20, 1990

Rehearing denied December 4, 1990

Jan W. McKinney, for appellant.

Richard, Chennggis & Constantinides, Platon P. Constantinides, for appellee.

I am authorized to state that Judge Cooper joins in this dissent.

       Ervin marketed the front-end loader by “word of mouth.” She received a bid from Larry Casey, the owner of “a big farm in Coving ton with the business of fencing . . . farmland.” Mr. Casey learned of the sale after he “overheard [Ervin] talking about the equipment at. . .” the parts store. Ervin also received a bid from the father of her daughter’s classmate. He “is in the real estate building business.” Ervin’s neighbor, “an electronic engineer professionally,” also offered to buy the front-end loader. He has “a farm in South Georgia and . . . deals a lot with [such] equipment through [a] lumber company in Fort Gaines.” Finally, a “friend” of Ervin’s mechanic called in a bid on the loader.


author: McMurray, Presiding Judge.

text:
    A90A1299.
    YARBRAY v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.
    (399 SE2d 718)
   McMurray, Presiding Judge.

Shirley Yarbray (plaintiff) brought an action against Southern Bell Telephone & Telegraph Company (“Southern Bell”), alleging invasion of privacy, intentional infliction of emotional distress and defamation. Southern Bell denied the material allegations of the complaint and moved for summary judgment. The evidence, construed in a light which most favorably supports plaintiff’s claims, reveals the following:

Plaintiff began working for Southern Bell in 1954. She was then 18 or 19 years of age. Over the yeárs, plaintiff developed a good employment record and, by June of 1977, she was a middle-level manager, working in the Human Resources Department at Southern Bell. Plaintiff’s duties included investigating and evaluating employment discrimination claims and administering guidelines for the selection of Southern Bell management personnel.

On March 11, 1988, plaintiff filed a federal age discrimination lawsuit against Southern Bell. On March 16, 1988, plaintiff was named as a potential witness in another age discrimination case filed in the United States District Court, Northern District of Georgia, against Southern Bell, Pilgrim v. Southern Bell Tel. &c. Co., Civil Action No. 1:87-CV-373-WCO. Shortly thereafter, plaintiff was questioned by a Southern Bell attorney, Audrey Polk, regarding plaintiff’s knowledge of the Pilgrim age discrimination suit. Plaintiff informed Southern Bell’s attorney, Ms. Polk, that she was not familiar with the case.

On March 23, 1988, plaintiff’s supervisor (Dave Lane) informed her “that any information [plaintiff] had access to in the course of [her] job was considered proprietary and was not to be used in [plaintiff’s employment discrimination case] or any other litigation.” Plaintiff informed Mr. Lane that she had “not and did not intend to misuse any proprietary information.” (Plaintiff later gave her attorney information regarding a Southern Bell early retirement plan, aimed at reducing “the average age of each of the management pay grades.”)

On March 29, 1988, another Southern Bell attorney, Keith W. Koehler, informed plaintiff “that as a manager of the company [she] would be expected to represent Southern Bell if . . . subpoenaed to court.” Plaintiff responded that she would “tell the truth, and [attorney Koehler] said, I certainly hope that you will. ...” Plaintiff then “asked him to explain what he meant by represent the company, [but plaintiff] did not get an explanation back.” Attorney Koehler simply restated, “that as a manager of Southern Bell you are expected to represent the company.” Mr. Koehler also stated that “he hoped that this would not affect [plaintiff’s] job. . . .”

Plaintiff appeared as a witness at the Pilgrim trial and testified that she is responsible for processing “all of the management promotional/lateral movement packages, payroll changes ... for the company headquarters area”; that she handled almost 1,900 promotion/ lateral movement packages in 1987 and that she does not “recall ever seeing an employee promoted from nonmanagement to management who was over 40, and definitely not over 50.” (Emphasis supplied.) Plaintiff further testified that Southern Bell’s employee qualification procedures are rarely followed; that the procedures only give the appearance of objectivity and that younger employees are more often selected for promotion than equally qualified older employees.

The Pilgrim case was settled after plaintiff’s testimony. Later, Southern Bell’s attorneys (Mr. Koehler and Ms. Polk) went to plaintiff’s supervisor, Dave Lane, and discovered that plaintiff had approved six “over-40” promotions, from non-management to management, during the year prior to the Pilgrim trial.

On June 14, 1988, Mr. Lane summoned plaintiff and another Southern Bell employee to his office. Mr. Lane then “advised [plaintiff] that because [she] had ‘misrepresented the facts’ on the witness stand in the Pilgrim case, and because [she] had given too much information, [plaintiff] would be transferred to the Network Department effective June 16, 1988.” Mr. Lane also informed plaintiff that he thought there was a conflict of interest with plaintiff in her present position and that the new job would enable plaintiff to grow in another area. The transfer was later completed and plaintiff was given the same pay and the same benefits, but she was not exposed to employment related information at Southern Bell.

Plaintiff was not comfortable in her new position and plaintiff’s supervisor, John Daughtridge, was not satisfied with her. Mr. Daughtridge openly criticized plaintiff, including her punctuality, her lack of team participation, her absenteeism, her lack of communication, her lack of accountability and her failure to work well with other employees. Mr. Daughtridge characterized plaintiff as argumentative and insubordinate and he attempted to recruit another employee to “prepare a statement about [plaintiff’s] work performance and overall attitude.” The employee refused because “she thought it was an unfair request.” Mr. Daughtridge avoided contact with plaintiff and routinely failed to “acknowledge [plaintiff’s] presence in the office.” However, on September 13, 1988, Mr. Daughtridge abrasively criticized plaintiff, telling her “in a very loud voice that I do not want you here, I do not want you on my team. . . .” The reprimand was so loud and harsh that another employee shut a door to buffer the oppressive tenor of the meeting.

The trial court granted Southern Bell’s motion for summary judgment on all counts of the complaint. This appeal followed. Held:

1. In her first enumeration, plaintiff challenges the trial court’s order granting Southern Bell’s motion for summary judgment on her invasion of privacy claim.

(a) Plaintiff first contends the evidence of her March 1988 meetings with attorney Polk, supervisor Lane and attorney Koehler supports her invasion of privacy claim. More specifically, plaintiff contends that her “fundamental right [of privacy] was violated when Southern Bell attempted to use its position to coerce or intimidate her from testifying according to her own free will. ...”

Personal privacy rights are distilled from the concept of the “ ‘right to enjoy life — the right to be let alone . . .’ 4 [Harvard Law Review] 193.” Macon-Bibb County Water &c. Auth. v. Reynolds, 165 Ga. App. 348, 349 (2), 350 (299 SE2d 594). However, “ ‘only the more flagrant breaches of decency and propriety [can sustain an action for invasion of privacy].’ [4 Harvard Law Review 218.] To illustrate how restricted the right is and how outrageous and indecent its violation must be to give rise to a cause of action, . . . the alleged violation must be tested on the basis of the innocence and good faith of the actor. . . .” Davis v. Gen. Fin. &c. Corp., 80 Ga. App. 708, 710 (4) (57 SE2d 225). In the case sub judice, nothing indecent or outrageous could possibly be inferred from the alleged March 1988 meetings between plaintiff and attorney Polk and supervisor Lane.

There is no evidence that attorney Polk or supervisor Lane threatened or coerced plaintiff in order to compel her to actually compromise testimony during the Pilgrim trial. On the contrary, the undisputed evidence shows that attorney Polk and supervisor Lane restricted their discussions with plaintiff to areas professionally and ethically germane to the parties’ functions as Southern Bell employees, i.e., attorney Polk questioned plaintiff’s “knowledge” of the Pilgrim case and supervisor Lane directed “that any information [plaintiff] had access to in the course of [her] employment was considered proprietary and was not to be used in [plaintiff’s employment discrimination case] or any other litigation.” However, the same conclusion cannot be drawn from evidence surrounding plaintiff’s March 29, 1988, meeting with attorney Koehler.

Attorney Koehler allegedly informed plaintiff that she first had a duty of loyalty to Southern Bell if called as a witness in the Pilgrim case. He then told plaintiff that “he hoped that this would not affect [her] job. . . .” In context, these comments could easily be construed as a threat in order to coerce favorable testimony for Southern Bell. Even worse, the comments could be interpreted as and taken as an attempt to suborn perjury. This court has already condemned such conduct in the wake of an invasion of privacy claim. Troy v. Interfinancial, 171 Ga. App. 763, 769 (3) (320 SE2d 872). Nonetheless, outrageous conduct alone will not sustain an action for invasion of privacy. The effects of the malignant conduct upon a person of “ordinary sensibilities” under like or similar circumstances must also be considered.

“[T]he protection afforded by the law to the right of privacy must be restricted to ‘ordinary sensibilities’ and not to super-sensitiveness or agoraphobia. 41 Am. Jur. § 12, p. 934-5. There are some shocks, inconveniences and annoyances which members of society in the nature of things must absorb without the right of redress.” Davis v. Gen. Fin. &c. Corp., 80 Ga. App. 708, 710 (4), 711, supra.

Under the circumstances of the case sub judice, we do not view attorney Koehler’s conduct as so shocking and outrageous as to cause mental suffering, shame or humiliation to the ordinary person of “ordinary sensibilities.” Consequently, plaintiff’s right to privacy claim based on interference with her right to testify is without merit.

(b) Plaintiff also contends that her “fundamental right [of privacy] was violated when Southern Bell [retaliated] against her after she did testify.” Plaintiff first points to evidence of her transfer from the personnel department.

“The right of privacy is not absolute, but is qualified by the rights of others.” Gouldman-Taber Pontiac v. Zerbst, 213 Ga. 682, 683 (3), 684 (100 SE2d 881). In the case sub judice, Southern Bell had a legitimate interest in transferring plaintiff from a position which exposed her to conflicting loyalties and interests. The undisputed evidence shows that plaintiff was embroiled in a federal age discrimination dispute with Southern Bell at the time of her transfer; that plaintiff had, before the transfer, participated as an adverse witness to Southern Bell in another age discrimination lawsuit; and, that plaintiff’s duties in the personnel department included the exercise of unbiased judgment in evaluating discrimination claims against Southern Bell. Consequently, even assuming that Southern Bell’s transfer of plaintiff from personnel was retaliatory, we find the circumstances insufficient to sustain plaintiff’s invasion of privacy claim. See Jones v. Flagship Intl., 793 F2d 714, 726 (5th Cir. 1986).

Next, plaintiff enumerates evidence of her difficulties with supervisor John Daughtridge as proof of invasion of privacy based on retaliation. We do not agree.

“ ‘No individual can live in an ivory tower and at the same time participate in society and expect complete non-interference from other members of the public.’ [Cit.]” Gouldman-Taber Pontiac v. Zerbst, 213 Ga. 682, 683 (3), 684, supra. While the evidence in the case sub judice may be sufficient to sustain a finding that supervisor Daughtridge exercised extremely poor judgment in dealing with plaintiff, the personality conflicts between plaintiff and supervisor Daughtridge are not sufficient to sustain a cause of action against Southern Bell for invasion of privacy. Personality conflicts between co-employees are often frustrating and embarrassing and should ultimately “be resolved by the mutual employer[, and such matters] should not be litigated in a court of law.” Kornegay v. Mundy, 190 Ga. App. 433 (1), 435 (379 SE2d 14). This enumeration is without merit.

2. In her second enumeration, plaintiff contends the trial court erred in granting Southern Bell’s motion for summary judgment on her claim of intentional infliction of emotional distress.

“In order to sustain a cause of action for intentional infliction of emotional distress, the plaintiff must show that the defendant’s actions were so terrifying or insulting as naturally to humiliate, embarrass, or frighten the plaintiff.” (Endnote omitted.) Charles R. Adams III & Cynthia Trimboli Adams, Ga. Law of Torts, § 29-2, p. 340. “Further, the severity of the emotional distress allegedly produced ... is also a factor in determining liability for mental distress. Moses [c. Prudential Insurance Company of America, 187 Ga. App. 222, 226 (369 SE2d 541)]. The law will intervene only where the distress inflicted is so severe that no reasonable man could be expected to endure it. Id. It is for the court to determine whether on the strength of the evidence severe emotional distress can be found. Id.” Quinones v. Maier & Berkele, 192 Ga. App. 585, 587 (1, a) (385 SE2d 719).

Decided November 16, 1990

Rehearing denied December 4, 1990

Ford & Haley, James L. Ford, for appellant.

Jones, Day, Reavis & Pogue, John F. Wymer III, Deborah A. Sudbury, for appellee.

In the case sub judice, plaintiff argues that the evidence which supports her claim for invasion of privacy also supports her claim for intentional infliction of emotional distress. We do not agree. There is insufficient evidence to authorize a finding that Southern Bell’s conduct was so terrifying or insulting as to naturally humiliate, embarrass, or frighten plaintiff. This enumeration is without merit.

3. In her final enumeration, plaintiff contends the trial court erred in entering summary judgment for Southern Bell on her defamation (slander) claim.

“ ‘ “A corporation will not be liable for any slander uttered by an officer, even though he be acting honestly for the benefit of the company and within the scope of his duties, unless it can be proved that the corporation expressly ordered and directed that officer to say those very words: for a slander is the voluntary and tortious act of the speaker.” (Cits.) “As a corporation can act only by or through its agents, and as there can be no agency to slander, it follows that a corporation cannot be guilty of slander; it has not the capacity for committing that wrong. If an officer or an agent be guilty of slander, he is personally liable, and no liability results to the corporation.” (Cits.)’ [Cits.]” Church of God v. Shaw, 194 Ga. App. 694 (1) (391 SE2d 666).

In the case sub judice, there is evidence that Southern Bell employees stated that plaintiff had “ ‘misrepresented the facts’ ” at the Pilgrim trial. However, there is no evidence or allegation that Southern Bell expressly authorized its agents or employees to utter these words. Consequently, the trial court did not err in granting summary judgment to Southern Bell on plaintiff’s defamation claim.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.

       “On motion for summary judgment, ‘ “[t]he burden is upon the moving party, and the party opposing the motion is given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442).” Internat. Brotherhood v. Newman, 116 Ga. App. 590, 592 (158 SE2d 298). The movant “has this burden even as to issues upon which the opposing party would have the trial burden. And the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.” 6 Moore’s Federal Practice, (2nd Ed.) 2853, § 56.23.’ Colonial Stores v. Turner, 117 Ga. App. 331, 333 (160 SE2d 672).” Baggs v. Chatham County Hosp. Auth., 187 Ga. App. 834, 835 (1) (371 SE2d 653).


text:
    A90A1425.
    STILTJES v. RIDCO EXTERMINATING COMPANY, INC.
    (399 SE2d 708)
   McMurray, Presiding Judge.

Plaintiff Stiltjes, acting in her capacity as the administratrix of the estate of her deceased husband, filed this action against defendant Ridco Exterminating Company, Inc. (“Ridco”) and another corporation. The complaint seeks damages for the pain and suffering of plaintiff’s decedent due to the alleged negligence of defendants.

In a previous action, plaintiff, in her individual capacity, sought damages from defendant Ridco (and additional defendants who were eliminated from the action before trial), for the wrongful death of her husband. A jury trial resulted in a verdict for defendant Ridco. In Stiltjes v. Ridco Exterminating Co., 192 Ga. App. 778 (386 SE2d 696), we affirmed the judgment in favor of defendant Ridco in the wrongful death action.

In the case sub judice, defendant Ridco moved for summary judgment, relying upon res judicata and collateral estoppel. Plaintiff appeals from the grant of summary judgment in favor of defendant Ridco. Held:

“OCGA § 9-12-40 provides that ‘A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.’ OCGA § 9-12-42 provides that ‘For a former judgment to be a bar to subsequent action, the merits of the case must have been adjudicated.’ These code sections together set out the basic principles of res judicata in Georgia. For res judicata to act as a bar of a subsequent action, the original and subsequent action must bear certain identical characteristics. The two actions must be between identical parties or their privies, and the cause of action in each suit must be identical. Collateral estoppel, like res judicata, requires identity of parties or privity. However, unlike res judicata, collateral estoppel does not require identity of the claim but only precludes readjudication of an issue already adjudicated between the parties or their privies in a prior action. Sumner v. Sumner, 186 Ga. 390 (197 SE 833) (1938).” Norris v. Atlanta & West Point R. Co., 254 Ga. 684 (333 SE2d 835).

The cause of action by the wife for the wrongful death of her husband is a separate and distinct cause of action from that of the deceased’s estate for pain and suffering. Complete Auto Transit v. Floyd, 214 Ga. 232, 235 (2) (104 SE2d 208). Thus, the claim asserted in the case sub judice is not barred by the doctrine of res judicata.

Directing our attention to the doctrine of collateral estoppel, we note that, as with res judicata, identity of parties or their privies is required in order to act as a bar to a second lawsuit. Mills v. Roberts, 172 Ga. App. 77, 78 (322 SE2d 93). This brings us to the question of whether plaintiff, acting in her fiduciary capacity in the case sub judice, is the same party as plaintiff acting in her individual capacity in the wrongful death action. We find that plaintiff Stiltjes in her individual capacity and in her capacity as administratrix are legally different persons. Stanley v. Dominy, 196 Ga. 192 (1) (26 SE2d 355); Anderson Oil Co. v. Benton Oil Co., 246 Ga. 304, 306 (fn. 6) (271 SE2d 207). Since the individual plaintiff in the former action did not represent the administratrix, nor did the administratrix claim any right under the individual, the administratrix was not a privy of the individual. Macuch v. Pettey, 170 Ga. App. 467, 468 (2), 469 (317 SE2d 262); Smith v. Wood, 115 Ga. App. 265, 268 (4), 269 (154 SE2d 646). As there is no identity of parties or privity as to the judgment in the prior action, collateral estoppel is no bar to plaintiff’s claims in the case sub judice. Mills v. Roberts, 172 Ga. App. 77, 78, supra; A. R. Hudson Realty v. Hood, 151 Ga. App. 778, 779 (1) (262 SE2d 189).

Furthermore, we note that several cases upon which defendant Ridco has placed reliance may be distinguished on the facts. These include Smith v. Wood, 115 Ga. App. 265, supra, which provides a lucid statement of several principles relevant to the issues in the case sub judice, but is not directly controlling since it involves successive actions by the same individual plaintiff.

Defendant Ridco also relies on dicta from Janelle v. Seaboard Coast Line R. Co., 524 F2d 1259 (5th Cir. 1975) in which an initial unsuccessful action by the deceased’s estate under the Federal Employers’ Liability Act was followed by an action under Georgia’s wrongful death statute. The federal court opined that the surviving spouse was barred from bringing the wrongful death action since he was in privity with the estate. Nonetheless, the sequence of events in Janette is the opposite of that in the case sub judice. In the case sub judice, the action by the estate follows, rather than precedes, the action by the surviving spouse in an individual capacity. Therefore,' the dicta from Janette is not instructive on the issues presented in the case sub judice. The superior court erred in granting summary judgment in favor of defendant Ridco.

Judgment reversed.

Carley, C. J., and Sognier, J., concur.

Decided November 15, 1990

Rehearing denied December 4, 1990

Lefkoff, Duncan, Grimes & Dermer, John R. Grimes, for appellant.

Gorby, Reeves, Moraitakis & Whiteman, Michael J. Gorby, Stephanie L. Scheier, for appellee.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A2192.
    LOCKE v. ARABI GRAIN & ELEVATOR COMPANY, INC.
    (399 SE2d 705)
   Deen, Presiding Judge.

Appellant Bobby Locke, CEO and principal stockholder of Leeco Farm Center, Inc., d/b/a Worthco Farm Center (Worthco), hired a Mr. Hobby as Worthco’s manager. It was subsequently discovered that, during some 13 months of his tenure as manager (February 1986 through March 1987), Hobby had sold corn stored with Worthco to appellee Arabi Grain & Elevator Company (Arabi) and pocketed the proceeds. There was evidence that Hobby and members of his family had previously done business with Arabi, and that Arabi did not know that Hobby was employed by Worthco.

In January 1989 Locke, the Commodity Credit Corporation (CCC), and Leeco executed an agreement whereby the CCC and Leeco transferred to Locke all rights to the allegedly stolen corn and to all causes of action against any or all who might have acquired the corn. Locke then brought an action in trover and conversion against Arabi. Arabi answered, alleging inter alia that the purchases were made in the ordinary course of business and in good faith and without notice of any claim that plaintiff might have on the goods; and that, since the allegedly stolen goods had been entrusted to Hobby by plaintiff, Hobby had the power to transfer all rights of the entruster to the defendant. Locke moved for summary judgment in April 1990, as did Arabi in May. The trial court entered an order in July 1990 denying plaintiff’s motion and granting that of defendant. Locke now appeals. Held:

The trial court’s order fully and clearly states the ratio decidendi underlying his rulings. We therefore quote with approval relevant portions of the order.

Plaintiff based his case on trover and conversion. Were this a simple trover case the outcome in favor of Plaintiff would have been abundantly clear; however, the “entrusting statutes” of the Uniform Commercial Code (O.C.G.A. § 11-2-403(2) (3) call for a different result. . . .
59 ALR 4th, page 572, addresses “entrusting” as follows: “An entrusting of property, defined by §2-403(3) [of the Uniform Commercial Code] as any acquiescence by the owner of goods in the retention of those goods by another, may result in the owner’s loss of title to the property if the entrustee is a merchant who deals in similar goods. Under § 2-403 (2), a merchant who deals in goods of the same kind as those entrusted is empowered to convey the same title as that held by the entrustor to a buyer in the ordinary course of business. While this provision protects buyers who may be unaware of the risk that the property is owned by another person, it limits the original owner’s remedy to seeking recovery for the value of the goods from the merchant.”
59 ALR 4th, pages 580, 581, brings the matter of “entrusting” close to the facts of the instant case: “The courts in the following cases held that the owners of food products entrusted them within the meaning of § 2-403 when they permitted other parties to take possession of those goods for the purpose of reselling them.
Although focusing on the issue of whether a person to whom possession of goods was given met the definition of ‘merchant’ under § 2-403, the court in Simonds-Shields-Theis Grain Co. v. Far-Mar-Co., Inc., (1983, WD Mo) 575 F Supp 290, 37 UCCRS 1547 (applying Nebraska law), also determined that when a grain elevator owner supplied soybeans to the owner of a receiving elevator through the person whose status as a merchant was in dispute, an entrustment occurred within the meaning of § 2-403(2). The elevator owner shipped soybeans to the receiving elevator using the services of an independent trucker. At the receiving elevator, the trucker represented that the beans belonged to him; consequently he, rather than the grain elevator, received payment. The receiving elevator contended that the elevator owner should bear the loss because it entrusted the beans to the trucker as a merchant, who was empowered by § 2-403 to transfer ownership. Considering this claim, the court noted that the elevator owner was aware that the trucker occasionally bought and sold grain, and that personnel at the receiving elevator had prior dealings with the trucker acting as a seller of grain. The court stated that occasional merchandising, known to the entruster, satisfied the requirements of § 2-403(2), and therefore concluded that the trucker was empowered to transfer the elevator operator’s rights to the receiving elevator in the ordinary course of business.
The court in Robison v. Gerber Products Co. (1985, CA4 SC) 765 F2d 431, 41 UCCRS 88 (applying South Carolina law), stated that the trial court correctly determined that by allowing another farmer to retain possession and control of her portion of a crop, the owner of a peach orchard entrusted the crop within the meaning of § 2-403. After the orchard owner allowed the other farmer possession and control over her peaches, she never received her share of the money from the crop’s sale. The court determined that the other farmer was a merchant who dealt in goods of the kind entrusted, and concluded that since the orchard owner entrusted the peaches to a merchant, the merchant’s resale to a buyer in the ordinary course of business passed title to the crop to the buyer.
. . .
Judge [former Chief Justice] Marshall wrote in Simson v. Moon, 137 Ga. App. 82, 83-84 (1975) [, aff’d. 236 Ga. 786 (1976)]:
“The issue is whether or not there was an ‘entrusting’ of the truck under UCC §2-403 (2) and (3) . . ., so as to allow Hollowell to pass good title to Simson.
The rule in Georgia under its former Sales Act (Code Ann. § 96-111) had been, ‘The seller can convey no greater title than he has himself. There is no “market overt” in Georgia.’ Arnold v. Conner, 100 Ga. App. 503 (1) (111 SE2d 638); 77 CJS 1099, Sales, § 291. While the spirit of this rule has been carried forward in Article 2 of the Uniform Commercial Code (UCC §2-403(1)), a prominent exception to it is found in the ‘entrusting’ provision of that Code section, UCC § 2-403 (2) and (3).”
. . .
Judge Marshall summarized in Simson, supra, at pages 85-86:
“The general thrust of the cases involving ‘entrusting’ of goods to a dealer is aimed at the protection of the purchaser, where the latter acts in ‘good faith’ and the owner takes the risk by placing or leaving his chattel with a merchant of his own choosing who could convert or otherwise misdeal it. See Godfrey v. Gilsdorf, 86 Nev. 714 (476 P2d 3); Palmer v. Booth & Cowley, (N.Y.) 7 UCC Rptg. Serv. 182; Linwood Harvestore v. Cannon, 427 Pa. 434 (235 A2d 377); Couch v. Cockroft, (Tenn.) 490 SW2d 713; Humphrey Cadillac & Oldsmobile Co. v. Sinard, 85 Ill. App. 2d 64 (229 NE2d 365); Sherrock v. Commercial Credit Corp., (Del.) 290 A2d 648); Apeco Co. v. Bishop Mobile Homes, (Tex.) 506 SW2d 711, 3A Bender’s UCC Service, Sales and Bulk Transfers § 10.06[2]. The Georgia courts have similarly protected the good faith purchaser in the ‘entrusting’ situations, both under the UCC . . . Christopher v. McGehee, 124 Ga. App. 310 (183 SE2d 624); Charles S. Martin Dist. Co. v. Banks, 111 Ga. App. 538 (142 SE2d 309)); and under the old sales law (see Peoples Loan &c. Corp. v. McBurnette, 100 Ga. App. 4 (2, 3) (110 SE2d 32), Dealers Discount Corp. v. Trammell, 98 Ga. App. 748 (106 SE2d 850); Wolfe v. Smith, 80 Ga. App. 136 (55 SE2d 675); Capital Auto. Co. v. Ward, 54 Ga. App. 873 (189 SE 713); Pilcher v. Enterprise Mfg. Co., 36 Ga. App. 760 (138 SE 272)). These latter pre-UCC cases reach the same result based in varying degrees on ‘estoppel’ or ‘apparent authority’ or both. The protection afforded the purchaser ‘is merely a special application of the broad equitable principle that where one of two innocent persons must suffer loss by reason of the fraud or deceit of another, the loss should rightly fall upon him by whose act or omission the wrongdoer has been enabled to commit the fraud.’ DePaulo v. Williams Chevrolet-Cadillac, Inc., supra, p. 603. See also, Blount v. Bainbridge, 79 Ga. App. 99, 103 (53 SE2d 122); Morris v. Courts, 59 Ga. App. 666, 672 (1 SE2d 687).’ ”

This court has continued to apply the statutory language in the same manner as in the cases cited in the trial court’s order, above. “The language of [OCGA § 11-2-403 (2), (3)] is quite clear: actual entrustment to the merchant, or dealer, gives the power to transfer ‘all rights of the entrusted to a buyer in the ordinary course of business.” Commercial Credit Equip. Corp. v. Bates, 154 Ga. App. 71, 73 (267 SE2d 469) (1980). We find no error below.

Judgment affirmed.

Pope, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur but not with all that is said. The entruster in this case was the CCC, not plaintiff Locke. CCC was the owner of the corn. OCGA § 11-2-403 (2) and (3) apply only to owners of goods. United Carolina Bank v. Sistrunk, 158 Ga. App. 107, 109 (2) (279 SE2d 272) (1981), citing several earlier cases on this point. See also Sunnyland &c. Credit Union v. Ft. Wayne Mtg. Co., 182 Ga. App. 5, 6 (354 SE2d 645) (1987). It is the act or omission of the CCC in entrusting the corn to Leeco, the corporate merchant, which enabled the wrongdoing person, merchant Leeco’s employee, to commit fraud. That is what allows this statutory departure from the common-law rule that a seller can convey no greater title than he has himself. Commercial Credit Equip. Corp. v. Bates, 159 Ga. App. 910 (285 SE2d 560) (1981).

Decided October 26, 1990

Rehearing denied December 4, 1990

Kirbo & McCalley, William C. McCalley, John V. Forehand, for appellant.

Guy V. Roberts, Jr., for appellee.

Locke merely stepped into CCC’s shoes when he obtained CCC’s cause of action, if any, against purchaser Arabi, so that the defense that it had bought the corn from a merchant was available to Arabi. Leeco came within the statutory definition of merchant, OCGA § 11-2-403 (2), as a matter of law because it dealt in corn, an undisputed fact.


author: Deen, Presiding Judge.

text:
    A90A2342.
    BEDFORD, KIRSCHNER & VENKER, P.C. v. GOODMAN.
    (399 SE2d 723)
   Deen, Presiding Judge.

Appellant moved for recusal of the trial judge on the basis that he is likely to be a material witness in the appellee’s motion for attorney fees and expenses under OCGA § 9-15-14. The judge refused to recuse himself, ruling that the motion was untimely and that the affidavit was insufficient. We granted appellant’s application for interlocutory appeal. Appellant claims the trial court erred in not recusing himself and by failing to assign the recusal motion for hearing by another judge. Held:

Appellant is a law firm that represented Harold J. Gaines in his suit filed in July 1986 against James Goodman, alleging that Goodman breached his fiduciary duty to Gaines by improperly disclosing confidential information acquired while Goodman was acting as attorney for Gaines. Goodman counterclaimed against Gaines for abusive litigation under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). On December 12, 1988, the trial court entered summary judgment in favor of Goodman on the malpractice allegations in the complaint. Although the court found undisputed evidence of an attorney-client relationship between Goodman and Gaines, it concluded that the confidential information had been communicated to a third party; thus Gaines had waived the attorney-client privilege protecting disclosure of the information and was not entitled to recovery. On June 12,1989, Goodman filed a motion under OCGA § 9-15-14 seeking an award of attorney fees and expenses against Gaines and his attorneys, Bedford, Kirschner & Venker, P.C. The trial court dismissed the motion as premature because the abusive litigation counterclaim remained pending. Thereafter, the trial court entered an order allowing appellant to withdraw as counsel for Gaines on the pending counterclaim because of a potential conflict of interest arising out of the abusive litigation and OCGA § 9-15-14 claims. On March 6, 1990, Gaines filed a sworn confession of judgment with respect to the pending counterclaim, in which he reversed his previous positions in the suit, admitted liability in the amount of $100,000, denied that Goodman had ever represented him, and stated that appellant, as his attorney, intentionally asserted groundless claims against Goodman. The trial court accepted the confession of judgment and entered a final judgment in the case on March 6, 1990, from which no appeal was taken.

On April 11, 1990, Goodman again moved under OCGA § 9-15-14 for an award of attorney fees and expenses against appellant and Gaines. In reciting a final disposition of the action, the motion states in part that, “This Court, after discussing the. matter with Plaintiff Harold J. Gaines, accepted said Confession of Judgment and included it in the Court’s Final Order, Judgment and Decree, dated and entered March 6, 1990.” On May 10, 1990, appellant filed a motion for recusal of the trial judge, claiming that the discussion or hearing the judge had with Gaines respecting the confession of judgment may make the judge a material witness in the pending motion for attorney fees and expenses under OCGA § 9-15-14. The affidavit in support of the motion for recusal states that on May 10, 1990, affiant contacted the judge’s secretary, who related that the judge met in chambers with the parties, Goodman and Gaines, and that she knew of no transcript or record of the meeting. The motion and affidavit state that since appellant was not notified of the meeting, and no record exists of what information relevant to the OCGA § 9-15-14 dispute may have been communicated to the judge, this disqualifies the judge under Canon 3 (C) (1) (d) (iv) of the Code of Judicial Conduct, as a likely material witness in the current proceedings.

We disagree. Rule 25.2 of the Uniform Superior Court Rules provides that when a trial judge is presented with a motion for recusal accompanied by an affidavit, the judge’s duty is limited to determining the timeliness of the motion and the sufficiency of the affidavit. Bouldin v. State, 179 Ga. App. 394, 395 (346 SE2d 871) (1986). The test for determining the sufficiency of the affidavit is whether, assuming the truth of the facts alleged, a reasonable person would conclude that the judge is likely to be a material witness in the proceedings. See State v. Fleming, 245 Ga. 700, 702 (267 SE2d 207) (1980). Under this standard we find no error in the trial court’s determination that the affidavit was insufficient to warrant his recusal. The affidavit shows no more than an unrecorded hearing held in the judge’s chambers regarding entry of a confession of judgment on the pending counterclaim, attended by all the parties to the counterclaim. This was not an ex parte communication with the judge from which appellant was improperly excluded, since appellant was not a party to the counterclaim and had already withdrawn as counsel for Gaines. The affidavit’s anticipation that the judge will be a material witness is not based on any facts which would reasonably support such a conclusion. See Hardman v. Hardman, 185 Ga. App. 519, 520 (364 SE2d 645) (1988). It is not necessary for us to reach the issue of timeliness, since the insufficiency of the affidavit disposes of the case.

Decided November 19, 1990

Rehearing denied December 4, 1990

Bedford, Kirschner & Venker, Andrew R. Kirschner, Thomas J. Venker, pro se.

Goodman & Bush, F. Clay Bush, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.

       Until appellant became a party to the OCGA § 9-15-14 motion, filed after final disposition of the underlying action, it had no standing to claim a legal interest in the resolution of the counterclaim. After being made a party to the motion, appellant would be entitled to pursue discovery of matters relevant to the motion.


author: Pope, Judge.

text:
    A90A0962.
    PANASONIC INDUSTRIAL COMPANY v. HALL et al.
    (399 SE2d 733)
   Pope, Judge.

Plaintiff/appellant Panasonic Industrial Company brought suit against defendant/appellee Capital Business Systems, Inc., and defendant/appellee Jack D. Hall, as guarantor, alleging that defendants were indebted to it for typewriters and other merchandise supplied on an open account to Capital Business pursuant to the parties’ dealership agreement. The trial court directed a verdict for defendant Hall, and Panasonic and Capital Business agreed to settle the remaining issues pursuant to a consent agreement. Held:

1. In its first enumeration of error Panasonic contends that the trial court erred in directing a verdict in favor of Hall on the basis of OCGA § 10-7-22, which provides for an automatic discharge of the surety if the creditor commits an act which, inter alia, increases the risk of the surety. In this case the trial court concluded that because Panasonic filed its Financing Statement in the wrong county, which allowed another creditor with a properly filed financing statement to assert a superior lien to the equipment securing the parties’ open account agreement, Hall’s risk was increased and thus he was discharged as a matter of law. We agree with the trial court that the action of Panasonic increased the risk of the surety. The question then becomes whether Hall, pursuant to the terms of the written guaranty of payment, consented in advance to the action of Panasonic with respect to the collateral here. We find that he did and thus reverse the judgment of the trial court granting a directed verdict in his favor.

The guaranty here was absolute and unconditional, and contained a specific waiver by Hall of “all defenses, offsets and counterclaims which [he] . . . may now or hereafter have upon any Obligation hereon. . . .” Moreover, paragraph 5 of the agreement provided, in pertinent part, as follows: “[The guarantor] hereby consents and agrees that Panasonic may at any time or from time to time, in its discretion, before or after any default of [Capital Business] with respect to any Obligations hereunder and without notice to, knowledge of or assent from the [guarantor]: . . . (b) exchange release or surrender any or all collateral security now or hereafter held ... in connection with any or all Obligations of [Capital Business] to Panasonic. . . . Any or all of the foregoing shall be accomplished by Panasonic in such manner and upon such terms as it sees fit, and the [guarantor] shall remain bound upon this Guaranty notwithstanding any such action taken by [Panasonic].”

We agree that by the above language Hall consented to the action of Panasonic with respect to the collateral securing the obligation here. “A party may consent in advance to the conduct of future transactions and will not be heard to ‘claim his own discharge’ upon the occurrence of that conduct. [Cits.]” Thurmond v. Ga. R. Bank &c. Co., 162 Ga. App. 245, 247 (1) (290 SE2d 126) (1982). Under the circumstances “it cannot be said that [Hall] was discharged by the increased risk. [Cit.] It follows that the trial court erred in granting [Hall’s] motion for [directed verdict on this basis.]” Bank of Loganville v. Lisle, 187 Ga. App. 763, 764 (371 SE2d 215) (1988). Accord Rice v. Ga. R. Bank &c. Co., 183 Ga. App. 302, 303 (1) (358 SE2d 882) (1987). See also Rogers v. C & S Nat. Bank, 156 Ga. App. 330 (2) (274 SE2d 722) (1980).

Decided December 4, 1990.

David S. Beale, Novy & James, R. Craig Henderson, for appellant.

Louis F. Ricciuti, for appellees.

2. Panasonic has expressly abandoned its second enumeration of error. Because of our holding in Division 1, supra, it is unnecessary for us to address Panasonic’s final enumeration of error.

Judgment reversed.

Deen, P. J., and Beasley, J., concur.

       For the first time on appeal Panasonic asserts that the trial court should have relied on Article 3 of Chapter 11, the Commercial Paper provisions of Georgia’s Uniform Commercial Code, instead of the provisions relating to suretyship, OCGA § 10-7-20 et seq. However, “Article 3 does not govern guaranties which are not ancillary to notes or other actionable negotiable instruments. Guaranties alone are not negotiable instruments . . . .” Fidelity Nat. Bank v. Reid, 180 Ga. App. 428, 430 (1) (348 SE2d 913) (1986). The guaranty here was ancillary to an open account. Thus Article 3 of Title 11 is inapplicable.


author: Sognier, Judge.

text:
    A90A1096.
    DEPARTMENT OF TRANSPORTATION v. BALES et al.
    (400 SE2d 21)
   Sognier, Judge.

The Department of Transportation condemned .296 acres of land in LaGrange, which was the site of Robert Bales’s convenience store and filling station. A jury found that Bales was entitled to just compensation in the amount of $389,945. The trial court denied the DOT’s motion for a new trial, and it appeals.

1. The DOT contends the trial court erred by overruling its objection to certain testimony by appellee. At trial appellee introduced photographs depicting the store on the condemned property, which showed paint peeling off the gasoline canopy in the photos. Referring to the photographs, appellee’s counsel asked him why did the store get into the condition shown by the photos, and appellee responded, “[i]f you knew you were going to be disbarred tomorrow you wouldn’t go home and read a lot of law books. I knew the state was coming, so I didn’t want to spend any money. I didn’t feel like I could recuperate.”

The DOT moved to strike appellee’s testimony on the stated basis that the effect appellee’s knowledge of the highway project had on his decision whether or not to repair the property was not admissible. The trial court overruled the objection, and appellee went on to testify that although the paint was peeling, the gasoline canopy was made of aluminum shingles with a baked on enamel which was in good condition underneath the paint.

Considering the challenged statement in the context of all the testimony introduced, see generally Haywood v. Wooden Peg, Inc., 174 Ga. App. 806, 808 (2) (331 SE2d 109) (1985), we do not agree with the DOT that the testimony in issue was elicited to persuade the jury to compensate appellee without consideration of the deteriorated current condition of the convenience store. However, even reviewing the challenged remark removed out of its context, it appears appellee was echoing a comment made by Scott Gordy, appellee’s expert witness, who had earlier testified, without objection, that “[w]hen you know a road is coming, a road is going to go through your front door, you don’t spend good money after bad.” It was not harmful error for appellee to repeat what had been admitted earlier without objection. See Eiberger v. Martel Electronic, 125 Ga. App. 253, 255-256 (6) (187 SE2d 327) (1972).

2. The DOT contends the trial court erred by not striking appellee’s testimony that it would cost $450,000 to replace what he lost in the condemnation because appellee’s sum did not include any depreciation. The transcript reveals that appellee, a 63 year old, self-made man, valued the realty by taking the purchase price and appreciating it over the seven years he had owned it, but he did not depreciate the store, its fixtures, or any of the other personalty on the property, testifying on cross-examination that “seven years of my life have gone into that land and why should I be required to take the depreciation on my life?”

The trial court overruled the DOT’s motion to strike because appellee’s expert witness, Gordy, had earlier testified that the replacement value of appellee’s land, store, and equipment would total $575,000 with a depreciation factor of 15 to 20 percent, or $488,750 to $460,000. While the transcript does not support appellee’s assertion on appeal that he testified he relied upon his conversations with Gordy to arrive at his $450,000 amount, we do agree with appellee that this enumeration does not present reversible error. In view of Gordy’s testimony, appellee’s testimony regarding the value of the condemned property was not the only evidence on which the jury could have based its verdict. Compare Western Geophysical Co. v. Rowell, 126 Ga. App. 427, 429 (2) (190 SE2d 921) (1972). Further, the verdict returned by the jury was approximately $60,000 less than the undepreciated amount claimed by appellee (a 13.35 percent reduction) and considerably less than the $575,000 figure stated by Gordy, even after Gordy’s depreciation figures are factored into the amount. Therefore, in the context of the other evidence introduced in the case, we do not find appellee’s testimony to have been unduly prejudicial, see Department of Transp. v. Brand, 149 Ga. App. 547, 549-550 (5) (254 SE2d 873) (1979), Div. 3 of which was overruled in MARTA v. Dendy, 250 Ga. 538, 541-542 (299 SE2d 876) (1983), even though technically the testimony was deficient because appellee did not factor depreciation into the final amount. Id.

3. The trial court charged the jury that “[t]he law permits an owner of property in which land is taken in an eminent domain trial to testify as to his opinion of the market value of such land, and the testimony of an owner as to value is to be [weighed] and considered by you as that of any other witness expressing an opinion as to market value at the time of the taking. You should determine if the reasons given in support of the land [owner’s] opinion as to market value are sound or unsound, and you may reject that opinion or give it whatever weight you think it deserves.”

The DOT contends this charge was defective because the first sentence did not include the requirement that the landowner must first give the reasons for his opinion of the property’s value before he can testify to that value. While we agree with the DOT that a non-expert must state the facts upon which his opinion is based before his opinion is admissible, OCGA §§ 24-9-65; 24-9-66; State Hwy. Dept. v. Raines, 129 Ga. App. 123 (1) (199 SE2d 96) (1973), we disagree with the DOT that the charge as given utterly fails to reflect that requirement. “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Punctuation and citation omitted.) Department of Transp. v. Hillside Motors, 192 Ga. App. 637, 640 (3) (385 SE2d 746) (1989). The second sentence of the charge required the jury to determine “if the reasons given” by the landowner were sound or unsound: implicit in this sentence is the fact that reasons were given by the landowner. The DOT does not deny that appellee testified to the reasons for the value he placed on his condemned property (including the reasons why he refused to depreciate that property). Although we do not approve the charge as given and would have to find it harmful error in a case where questions existed regarding whether the non-expert stated the bases for his opinion, we do not find the giving of this charge reversible error here.

4. The DOT contends the trial court improperly charged the jury on the unique value and the peculiar value of the property because there was no evidence to support a jury finding that the property was unique or had peculiar value to appellee, or, alternately, because there was no evidence of the value of the unique property to enable the jury to return a verdict based on the property’s uniqueness. “ ‘The evidence to authorize a jury instruction need not be substantial or direct; it is enough if there is even slight evidence consisting of inferences drawn from the testimony. (Cits.)’. . . [Cit.]” Department of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 542 (1) (309 SE2d 816) (1983). See also Smiway, Inc. v. Dept. of Transp., 178 Ga. App. 414, 417 (5) (343 SE2d 497) (1986).

The DOT does not challenge the well-established proposition that a property is unique if it is a type of property not generally bought or sold on the open market. Department of Transp. v. 2.734 Acres of Land, supra at 544. Rather, the DOT asserts that there was no evidence to support the trial court’s charge that “[appellee] contends that his property is unique because it is generally of a type not sold on the open market. If you find a property is not generally sold on the open market, you may consider the unique value to the owner.” However, a review of the transcript reveals that the DOT’s own expert witness, George Steven Collins, testified twice on direct, once on cross-examination, and once on re-direct that convenience stores like appellee’s store fall into the types of properties that are not typically involved in market transactions of real estate in a given area and are not generally bought or sold on the open market. We find this evidence sufficient to authorize the jury charge given. See Fulton County v. Winkles, 176 Ga. App. 690, 691 (2) (337 SE2d 453) (1985).

In regard to the peculiar value of the property to appellee, evidence was adduced that at least 40 percent of appellee’s sales came from the fried chicken appellee prepared in his store. Appellee testified that most of the purchasers of his fried chicken were walk-in customers, and that although he was currently selling his fried chicken, among other food items, from another’s store only two blocks away from his condemned property, his sales were down 75 percent from his former location. This evidence was sufficient to authorize the trial court’s giving of the challenged charge. See Glynn County v. Victor, 143 Ga. App. 198, 199-200 (3) (237 SE2d 701) (1977).

The DOT also argues there was no evidence adduced from which the jury could determine the value of appellee’s unique property. We find no merit in the DOT’s argument that the testimony of appellee’s expert witness, Gordy, was anything other than “replacement cost new less depreciation,” one of the three recognized techniques for determining market value. Housing Auth. of Atlanta v. Southern R. Co., 245 Ga. 229, 230 (1) (A) (264 SE2d 174) (1980). That method is one of the non-fair market methods of valuation used to measure unique property. Id. As to the sufficiency of that evidence, “[office a condemnee gets over the hurdle of proving the property to be ‘unique,’ proving damages by an alternative, non-fair market value method is the sole remaining burden, and a question for the jury.” Id. at 231 (1) (A).

5. The DOT asserts that it was entitled to a new trial because the evidence was insufficient to support the verdict, specifically claiming that the expert testimony of appellee’s expert witness, Gordy, had no probative value. “The determination of value and of whether an expert’s opinion as to value should be accepted are questions for the jury.” Department of Transp. v. Adams, 193 Ga. App. 866, 867 (1) (389 SE2d 343) (1989). At trial Gordy testified about his employment handling all legal aspects of a company that owns and develops convenience stores in Georgia, Alabama, and Florida, and detailed the duties of that job including, inter alia, locating property for such stores, negotiating the sale or purchase of properties, and overseeing the construction of stores. Gordy listed the factors important to the operation of a convenience store (e.g., location, traffic count, curb cuts, zoning, etc.) and applied those factors to appellee’s store, based upon his personal observation of the store. Then, based upon his educational background and his work experience, he gave his opinion of the cost involved in putting a store in LaGrange comparable in size and other stated details to appellee’s property and gave his opinion about the depreciation factor to be applied.

Decided December 4, 1990.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Harrison W. Kohler, Deputy Attorney General, Roland F. Matson, Senior Assistant Attorney General, Thurman E. Duncan, Special Assistant Attorney General, for appellant.

Louis J. Kirby, for appellees.

“In a civil case, a trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.” (Punctuation and citations omitted.) Mathis v. Dept. of Transp., 185 Ga. App. 658 (1) (365 SE2d 504) (1988). While the transcript reflects that Gordy’s appraisal methods did not duplicate the standards used by M.A.I. designated real estate appraisers such as the DOT’s expert witness, we do not agree with the DOT that Gordy’s testimony was not sufficient to support the jury’s verdict. Our review of the transcript indicates that the DOT’s objection to Gordy’s testimony is, in actuality, a challenge to the weight of that testimony. On appeal, this court considers the sufficiency of the evidence and not its weight. Hawkins v. Grady County Bd. of Tax Assessors, 192 Ga. App. 416, 417 (2) (385 SE2d 305) (1989). We find no error in the trial court’s denial of the DOT’s motion for a new trial on the sufficiency of the evidence. Mathis, supra.

Judgment affirmed.

McMurray, P. J., concurs. Carley, C. J., concurs in the judgment only.


text:
    A90A1136.
    SANDERS v. THE STATE.
    (399 SE2d 734)
   Pope, Judge.

Defendant Mark Allen Sanders was convicted of rape, two counts of aggravated sodomy, kidnapping and possession of a knife during the commission of a crime, following a second trial based on these charges. His first trial ended in a mistrial. In his motion for new trial, defendant argued that trial counsel (who is different from counsel who made the motion and appealed) was ineffective because he did not raise a plea in bar based on double jeopardy and because he did not impeach certain witnesses at the second trial with their testimony from the first trial. The trial court denied defendant’s motion for new trial, specifically rejecting, inter alia, defendant’s ineffectiveness arguments. Held:

1. Defendant argues trial counsel in his second trial was ineffective because he failed to raise the defense of double jeopardy. In his first trial, the trial court, in a series of rulings, ordered that evidence of defendant’s drug use prior to the night of the alleged crimes could not be presented and ordered the prosecutor to so instruct his witnesses. The prosecutor did so and complied with the orders of the trial court. However, on cross-examination the prosecutor asked defendant the reason he left his employment with Copperfield’s, a restaurant at which he worked for a time with the victim, for the second time. Defendant replied that he was to be admitted to Charter Peachford Hospital to receive treatment for cocaine addiction. The trial court granted the defense motion for mistrial.

Defendant argues that this conduct objectively demonstrates prosecutorial misconduct sufficient to bar a second trial. “The general rule is that when a mistrial is granted at the defendant’s request due to trial error, the Double Jeopardy Clause does not bar the state from retrying the case. Williams v. State, 258 Ga. 305 (369 SE2d 232) (1988); Oregon v. Kennedy, 456 U. S. 667 (102 SC 2083, 72 LE2d 416) (1982); United States v. Dinitz, 424 U. S. 600 (96 SC 1075, 47 LE2d 267) (1976). However, there is a narrow exception to this rule. ‘Only where the (state) conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.’ Oregon v. Kennedy, supra at 676.” Hardy v. State, 258 Ga. 523 (371 SE2d 849) (1988).

At the hearing on the motion for new trial, the prosecutor testified that he had acted as he had because he had understood the trial court’s rulings prohibited him from introducing evidence of the defendant’s prior drug use in presenting the State’s case, but did not prevent him from exploring the subject if the defendant raised it himself. He testified that he was satisfied with the progress of the trial and with the jury and that he had no intention to goad the defense into moving for a mistrial. The judge on the motion for new trial was the same judge who tried both the first and second cases. She found specifically that the prosecutor’s question that resulted in a mistrial of the first case was not asked “to harass or to goad or to intentionally provoke a mistrial,” and that she would not have granted a plea of double jeopardy hqd one been raised. Our review of the record shows that the evidence supports the finding of the trial court. Trial counsel could not have been ineffective because he failed to raise a motion for double jeopardy that had no merit.

Decided December 4, 1990.

Joseph A. Maccione, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

2. Defendant argues that trial counsel was ineffective because he failed to impeach several witnesses with their testimony from the first trial. Contrary to defendant’s argument on appeal that trial counsel did not read the transcript of the first trial before the beginning of the second trial, the record on the motion for new trial shows that trial counsel stated that he did read the transcript. The record also shows that trial counsel was an experienced criminal trial attorney. The trial court found that trial counsel’s cross-examination was adequate and that he provided effective assistance of counsel to Sanders.

Each of the areas of impeachment cited to us by appellate counsel are matters of judgment or trial tactics regarding whether they should be raised. They simply are matters of trial strategy in which appellate counsel and trial counsel differ. Such disagreement does not amount to ineffective assistance of counsel. See Spivey v. State, 193 Ga. App. 127 (3) (386 SE2d 868) (1989). The record before us supports the finding by the trial court that trial counsel rendered effective assistance of counsel.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


author: McMurray, Presiding Judge. Banke, Presiding Judge, Beasley, Judge,

text:
    A90A1343.
    CARTWRIGHT v. THE STATE.
    (399 SE2d 736)
   McMurray, Presiding Judge.

Defendant Cartwright appeals his conviction of two counts of obstructing and encroaching upon a public road in violation of OCGA § 32-6-1 on June 4, 1987, and on June 5, 1987, “by parking vehicles extending onto and upon [the] public highway right-of-way. . . .” Held.

“Statutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation. See Earth Management v. Heard County, 248 Ga. 442, 444 (283 SE2d 455) (1981).” Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186). “Any question as to the proper construction to be given to a statute is for the court to determine [cits.], and application of a statute’s terms to undisputed facts is a question of law. [Cits.]

“Also it is an elementary rule of statutory construction that, absent clear evidence to the contrary, words should be assigned their ordinary, logical, and common meaning. [Cits.]” Curlee v. Mock Enterprises, 173 Ga. App. 594, 599 (4), 600 (327 SE2d 736).

As related to the case sub judice, OCGA § 32-6-1 provides that a person shall not “obstruct” or “encroach” upon any part of any public road. When “obstruct” and “encroach” are assigned their ordinary, logical and common meanings, any use of a vehicle on a public road results in a violation of OCGA § 32-6-1. In order to use the public road, a vehicle must enter or “encroach” upon the roadway. Additionally, any vehicle upon the public road, whether mobile or stationary, is to some degree an obstacle or impediment to passage and thus constitutes an obstruction upon the roadway. See in this regard Webster’s New Inti. Dictionary, 2d ed. Obviously, such an unacceptable result cannot be the intention of the legislature. When OCGA § 32-6-1 is construed in pari materia with statutes governing the operation and parking of motor vehicles, including OCGA § 32-6-2, we find the parking of motor vehicles on public roads to be fully regulated without reference to the statute under which defendant was prosecuted. See Ryan v. Commrs. of Chatham County, 203 Ga. 730, 731 (1) (48 SE2d 86). Thus, after consideration of the unacceptable result arising from the application of OCGA § 32-6-1 to vehicles and of the fact that the operation and parking of vehicles are fully regulated by other statutes, it is apparent that OCGA § 32-6-1 does not regulate vehicles.

Southern Intermodal Logistics v. Coleman, 175 Ga. App. 853, 854 (2) (334 SE2d 888) correctly construes OCGA § 32-6-1 as not regulating the parking of vehicles on the right-of-way of State highways, albeit the use of the word “structure” in Southern Intermodal has apparently obscured the holding in that case and drawn attention from the true issues in the case sub judice. However, see Smith v. Hiawassee Hardware Co., 167 Ga. App. 70, 71 (305 SE2d 805). In Southern Intermodal we referred to the non-vehicular item to which OCGA § 32-6-1 is applicable as a “structure.” The use of this particular term may be lacking in precision but as applied to the facts of that case led to a correct result.

Since OCGA § 32-6-1 does not in any way regulate vehicles used upon State highways, the conviction of defendant was not authorized. That which a citizen may legally do is not a proper ground for punishment as a crime. Sowards v. State, 137 Ga. App. 423, 425 (224 SE2d 85).” Hardeman v. State, 154 Ga. App. 364, 365 (268 SE2d 415). The judgment below must be reversed.

Judgment reversed.

Carley, C. J., Birdsong, Sognier, Pope and Cooper, JJ., concur. Deen, P. J., and Banke, P. J., concur and also concur specially. Beasley, J., dissents.

Banke, Presiding Judge,

concurring specially.

I concur fully in the majority opinion.

The General Assembly has enacted comprehensive legislation setting forth the circumstances under which parking on public roads will and will not be permitted. See generally OCGA § 40-6-200 et seq. Under the rationale advanced by the dissent, a driver could be parked in complete compliance with these statutes, as well as with all applicable departmental regulations and local ordinances governing the parking of motor vehicles at the location in question, see generally OCGA § 32-6-2, yet nevertheless be prosecuted under OCGA § 36-6-1 for obstructing or encroaching upon “any part of [a] public road.” Such a result would, of course, be nonsensical. Accordingly, while it may well be possible to violate OCGA § 36-6-1 through the creation of an obstruction or encroachment which is not structural in nature, I believe Southern Intermodal Logistics v. Coleman, 175 Ga. App. 853 (2) (334 SE2d 888) (1985), was correctly decided to the extent that it held that this Code section does not encompass vehicular parking.

I am authorized to state that Presiding Judge Deen joins in this special concurrence.

Beasley, Judge,

dissenting.

Cartwright was convicted of two counts of obstructing and encroaching upon a public road, OCGA § 32-6-1, “by parking vehicles extending onto and upon [the] public highway right-of-way. . . .” OCGA § 32-1-3 (24) defines “public road” broadly for this title. Subsection (25) defines “right of way.”

1. Appellant urges that the court erred in failing to grant his motion to dismiss the accusation, motion for new trial, and motion in arrest of judgment on the ground that this statute does not prohibit the parking of vehicles on state highways.

The statute provides in part: “It shall be unlawful for any person to obstruct, encroach upon, solicit the sale of any merchandise on, or injure materially any part of any public road.” Appellant contends that Southern Intermodal Logistics v. Coleman, 175 Ga. App. 853 (334 SE2d 888) (1985), construes the statute as not regulating the parking of vehicles on the right-of-way of state highways, and that this is supported by considering the statute in pari materia with OCGA § 32-6-2 (4). The latter, he argues, covers vehicle parking to the exclusion of the application of OCGA § 32-6-1.

OCGA § 32-6-1 does not limit the nature of the object by or with which a person might “obstruct” or “encroach” upon. The focus of the statute is the act of interfering with the public road; it matters not what object creates the potential of interference with traffic, which is the evil intended to be prohibited. Depending on the circumstances, vehicles could constitute the offending objects. Obviously, if they were legally on the road, they would not be unlawful encroachments or obstructions.

Southern Intermodal held that the statute was inapplicable to the facts in that case; a tractor-trailer had been left unattended in the center or passing lane. The court parenthetically described OCGA § 32-6-1 as “prohibiting the erection of maintenance of a structure which obstructs or encroaches upon a public road.” (Emphasis supplied.) The statute does not use the word “structure.”

Appellant’s exclusivity argument does not save his position. OCGA § 32-6-2 (4) cannot be construed to cover the universe of vehicles illegally left on public roads. In the first place, it deals only with those left on the right-of-way. Second, it deals only with those left on the state highway system. Third, it deals only with those left more than 48 hours. It does not cover vehicles left unattended on public roads not in the state highway system or on rights-of-way in the system for less than 48 hours. Yet such could obviously obstruct the public road. See OCGA §§ 40-6-200; 40-6-202; 40-6-203; 40-6-204.

The State’s theory in appellant’s case came within the contemplation of the statute. It was that appellant, systematically and continually and as an extension of his business enterprise, parked vehicles in his custody and control on the public road right-of-way. In other words, he used the area as an extension of his property for the conduct of his business. Whether or not the complained of conduct created an obstruction and/or encroachment of the public road would be for the jury to determine. The trial court did not err in denying appellant’s motions on the ground that the charged conduct was not prohibited under OCGA § 32-6-1.

2. Appellant’s contention that his convictions should be reversed because the State’s evidence was purely circumstantial and insufficient is without merit. The evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Cearley v. State, 193 Ga. App. 652 (388 SE2d 751) (1989), does not govern, as it is a case brought under another statute, OCGA § 16-11-43, and there was not even circumstantial evidence in that case to show that the obstruction was placed in the roadway by the defendant or resulted from activities emanating from property subject to defendant’s control.

Decided December 4, 1990.

Fortson, Bentley & Griffin, Ernest De Pascale, Jr., for appellant.

Ken Stula, Solicitor, for appellee.

       Compare the term “highways” and the exceptions thereto in OCGA § 40-6-3, which relates to the places upon which the Uniform Rules of the Road apply.


text:
    A90A1541.
    HILL-EVERETT v. JONES.
    (399 SE2d 739)
   McMurray, Presiding Judge.

Plaintiff brought this dental malpractice suit against Dr. J. Tyron Jones and Dr. Arva Lumpkin. She alleged Dr. Jones was negligent in failing to diagnose and treat her gum disease; that Dr. Lumpkin was negligent in cutting her cheek during the performance of a dental procedure known as subgingival scaling; and that Dr. Jones was liable for Dr. Lumpkin’s negligence pursuant to the doctrine of respondeat superior.

The complaint was accompanied by the “affidavits” of Dr. Louis Freedman and Dr. R. Terrell Weitman. A jurat was not affixed to either “affidavit.” Dr. Freedman and Dr. Weitman asserted that they were licensed dentists and practiced dentistry in Georgia for over 20 years. They also asserted: “The standard of care required is that a dentist should exercise such degree of care and control over any dental instrument which he or she is using so as not to cut his patient. Based on my examination of this patient and the history of this patient, in this particular case, the handling of the dental instrument was negligent and below the standard of care.”

Plaintiff filed her own affidavit along with the complaint. She testified that Dr. Jones was her dentist for over three years; that on May 2, 1987, she contacted Dr. Jones’ office because she noticed a knot on her gums; that she was advised that Dr. Jones could not see her because he was too busy but that she could be seen by Dr. Lumpkin “at the same office location”; that she did not intend to change dentists “and had no reason to believe that [she] was doing so”; and that she believed that by seeing Dr. Lumpkin, she would be “continuing in Dr. Jones’ dental care.”

Defendants answered the complaint, asserting, inter alia, the complaint should be dismissed because plaintiff failed to comply with OCGA § 9-11-9.1. Thereafter, defendants moved for summary judgment. In support of their motion for summary judgment, defendants submitted the affidavit of Dr. Lumpkin. She testified that she had an office sharing arrangement with Dr. Jones; that she was not a partner or employee of Dr. Jones; that she was merely an independent contractor and made no representation otherwise; that she paid a fee to Dr. Jones for rent, supplies, equipment, personnel services and laboratory work; that she used her own letterhead and prescription pad; that she and Dr. Jones had separate patients and dental practices; and that she and Dr. Jones occasionally “covered” for each other’s patients as a professional courtesy.

The trial court granted Dr. Jones’ summary judgment motion and denied Dr. Lumpkin’s summary judgment motion. Plaintiff appeals. Held:

1. OCGA § 9-11-9.1 requires the plaintiff to file with the complaint an expert affidavit setting forth at least one specific act of negligence or omission which constitutes the claim of alleged negligence amounting to malpractice. Plaintiff failed to submit such an affidavit in the case sub judice. We need look no further than the face of the documents submitted by plaintiff to reach this conclusion because neither document bears a jurat. In the absence of valid jurats, the documents cannot be deemed affidavits. D’Zesati v. Poole, 174 Ga. App. 142 (329 SE2d 280). It follows that the trial court did not err in granting Dr. Jones’ motion for summary judgment. Frazier v. Merritt, 190 Ga. App. 832 (2) (380 SE2d 495); Barr v. Johnson, 189 Ga. App. 136 (375 SE2d 51).

2. Plaintiff argues the trial court erred in granting Dr. Jones’ motion for summary judgment because it was not necessary to submit an expert’s affidavit to allege “simple negligence” against Dr. Lumpkin. See Razete v. Preferred Research, 197 Ga. App. 69 (397 SE2d 489) (1990). Assuming, arguendo, plaintiff did not have to submit an expert’s affidavit with the complaint to set forth a simple negligence claim against Dr. Lumpkin (but see Barr v. Johnson, 189 Ga. App. 136, supra), nevertheless, the trial court did not err in granting Dr. Jones’ summary judgment motion.

Plaintiff’s allegation that Dr. Jones was liable vicariously for the acts of Dr. Lumpkin was effectively pierced by the affidavit of Dr. Lumpkin who testified that she was not an agent of Dr. Jones. Georgia Mut. Ins. Co. v. Mims, 187 Ga. App. 783 (1) (371 SE2d 426). In light of Dr. Lumpkin’s affidavit, it was incumbent upon plaintiff to present evidence showing a genuine issue for trial with regard to the agency allegations. OCGA § 9-11-56 (e). Plaintiff failed to do so.

3. The motion to assess damages for a frivolous appeal is denied.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.

Decided December 4, 1990.

Linda H. Everett, pro se.

Webb, Carlock, Copeland, Semler & Stair, Paul R. Vancil, Douglas W. Smith, for appellee.


author: Beasley, Judge.

text:
    A90A1562.
    McCUBBIN et al. v. BRYANT.
    (399 SE2d 746)
    Decided December 4, 1990.

      Paul C. Parker & Associates, William S. Sarandis, for appellants.

      Murray, Temple & Dinges, William D. Strickland, for appellee.
   Beasley, Judge.

Plaintiffs, the McCubbins, appeal the grant of defendant Bryant’s motion for summary judgment.

Sharon McCubbin was injured when a vehicle she was driving on Interstate 20 near Six Flags struck a stalled vehicle belonging to Erica Bryant. Mrs. McCubbin was proceeding in the center lane when the automobile she was following suddenly swerved and switched lanes. At that point she first observed the Bryant vehicle stopped in front of her. Although she immediately applied the brakes she was unable to stop before colliding with the abandoned automobile.

Prior to that time Mrs. Bryant was proceeding along Interstate 20 when inexplicably her automobile’s engine failed. She was unable to move to the right because of traffic or to the left because of insufficient room. The engine would not restart, so she turned on the hazard warning lights and she and her two-year 7old son ran across the traffic lane to the shoulder and safety. She then proceeded to a gas station where she was calling for help when the collision occurred.

This case is almost identical on its facts to Brown v. Shiver, 183 Ga. App. 207 (358 SE2d 862) (1987). The factual differences do not create a legal distinction. It is controlled by the Brown decision, which upheld summary judgment for the defendant who was forced to abandon his automobile on a bridge. See OCGA §§ 40-6-204 and 32-6-2 (4).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.