author: Ruffin, Judge. Blackburn, Judge,

text:
    A94A1744.
    LEWIS v. THE STATE.
    (451 SE2d 116)
   Ruffin, Judge.

Lewis appeals his conviction of driving under the influence of alcohol and driving with an unlawful alcohol concentration.

Lewis was arrested after a police officer responded to a one-vehicle accident call. The officer found Lewis with an injured leg and noticed a strong odor of alcohol about him, that he had bloodshot eyes and his speech was slurred. Lewis was taken to the hospital, where he was arrested for driving under the influence. After his arrest, Lewis consented to a blood-alcohol test.

A lab technician took two blood samples from Lewis. The technician testified he sealed the tubes with color-coded stoppers, one grey the other red, and put Lewis’s name, the date, time and place on each tube. The tubes were then given to the arresting officer, who testified he wrapped them together in plastic and put them in an evidence locker, which he identified as locker L19 on the property record form. A county evidence technician testified she removed the samples the next day from evidence locker L13, put additional identifying information on them, and placed the samples in the evidence room refrigerator. When asked about the discrepancy between locker numbers, the officer testified he believed he mistakenly wrote down the number identifying the locker below locker L13. The evidence technician stated it is possible to confuse the lockers and that she was sure the blood she took out of locker L13 belonged to Lewis. A second evidence technician testified he removed the samples from the refrigerator and took them to the crime lab.

A forensic chemist with the Georgia Bureau of Investigation’s Division of Forensic Sciences tested the blood. He testified he received two tubes of blood “labled with the name Michael Lewis,” one with a grey stopper and the other with a yellow and black stopper. He further stated he only tested blood from the tube with the grey stopper. The print-out from the testing machine, a gas chromatograph, indicated a blood-alcohol concentration of .206. The chemist then compiled a report containing that information which was admitted at trial. The print-out was not introduced into evidence.

1. Lewis contends the trial court erred in denying his motion to quash Count 2 of the accusation, charging Lewis with “driving with unlawful alcohol concentration” in that he “was in actual physical control of a moving vehicle with an alcohol concentration of 0.10 grams or more, within three (3) hours after such actual physical control of a moving vehicle ended.” Lewis asserts the accusation was fatally defective because it lacked a material element of the crime charged.

OCGA § 40-6-391 (a) (4) provides “[a] person shall not drive or be in actual physical control of any moving vehicle while . . . [t]he person’s alcohol concentration is 0.10 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended.” (Emphasis supplied.) Lewis asserts that since the emphasized language was omitted from the accusation, he could have admitted the allegations and not have committed a crime.

OCGA § 17-7-71 (c) provides “[e]very accusation which states the offense in the terms and language of the law or so plainly that the nature of the offense charged may be easily understood by the jury shall be deemed sufficiently technical and correct.”

“ ‘The true test of the sufficiency of an indictment [or accusation] is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet. ... As long as the defendant is informed of the charges against him so that he may present his defense at trial and not be surprised by the evidence against him, as well as protect against another prosecution for the same offense, the indictment is sufficient. Thus, if a defendant is not misled to his prejudice by any imperfection in an indictment an appellate court will not reverse. . . . [Cit.]” Broski v. State, 196 Ga. App. 116, 117 (1) (395 SE2d 317) (1990).

Lewis relies on the rule stated in Pullen v. State, 199 Ga. App. 881 (406 SE2d 283) (1991), that if a “defendant could admit the accusation and still be innocent of the offense charged, the accusation is defective.” While we agree the accusation was not perfect, it apprised Lewis that he was being charged with driving with an unlawful alcohol concentration of 0.10 grams or more within three hours of operating a vehicle. Moreover, “this court on appeal must apply a harmless error test in order to determine if the error has prejudiced defendant and thus requires reversal of his conviction. . . . Thus, a defendant who was not misled to his prejudice by any imperfection in the indictment or accusation or citation cannot obtain reversal of his conviction on that ground. Defendant alleges no prejudice to himself and we can discern none.” (Citations and punctuation omitted.) Broski, supra at 118. See also Hall v. State, 200 Ga. App. 585 (3) (409 SE2d 221) (1991) .

2. Lewis further asserts the blood test results should not have been admitted on several grounds. He contends the blood tests did not satisfy the requirements of OCGA § 40-6-392 (a) (1), because the State did not show the analysis was performed according to methods approved by the Division of Forensic Sciences by an individual possessing a valid permit issued by the division for this purpose. OCGA § 40-6-392 (a) (1) provides in pertinent part, before a blood test can be considered valid, it must “have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation ... by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of the Georgia Bureau of Investigation is authorized to approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, which shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences.” (Emphasis supplied.)

Chapter 92-3 of the Rules of the Georgia Bureau of Investigation sets forth the blood testing qualification requirements referenced above. Rule 92-3-.06 (7) provides that “[a]ll blood tests will be performed by the Division of Forensic Sciences, or by an individual authorized in accordance with Rule 92-3-.02 (1) of these regulations.”

In the instant case, the individual who tested the blood was a forensic chemist with the Division of Forensic Sciences for 20 years. He testified the blood test he performed in this case was in conformance with what he was taught by the Division of Forensic Sciences. Thus we find that the method used to test the blood was approved by the Division of Forensic Sciences. Furthermore, the legislature’s delegation of complete authority to the Division of Forensic Sciences to regulate blood testing and permitting, including the authority to “approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses” authorizes the division to determine the competence of its own personnel to conduct such an analysis. Under such circumstances, we do not believe the legislature intended to require the Division of Forensic Sciences, as the permit issuing authority, to issue a permit to itself. Accordingly, we also find the Division of Forensic Sciences’ forensic chemist was authorized to conduct the test under OCGA § 40-6-392 (a) (1) and find no error in the admission of his testimony regarding the analysis performed on Lewis’s blood samples.

3. Lewis also asserts the blood samples were not adequately preserved by a proper chain of custody. While there was some confusion concerning the color of one of the tube stoppers, the evidence was clear that the only blood actually tested had a grey stopper and was labeled as Lewis’s. “ ‘[T]here is nothing in the record that creates a suspicion that the (samples) tested (were) other than (those) taken from [Lewis].’ [Cit.]” Brinson v. State, 208 Ga. App. 556, 557 (2) (430 SE2d 875) (1993). Furthermore, although there was conflicting testimony regarding the evidence locker number, the State offered an explanation as to why this was so. Williamson v. State, 194 Ga. App. 439, 440 (4) (390 SE2d 658) (1990). It is obvious the officer had a faulty recollection concerning the locker number. See Brinson, supra at 557. “The discrepancies noted would go to the weight of the evidence and not its admissibility. ‘The weight of the evidence and the credibility of the witnesses are questions for the factfinder.’ Here, the jury chose to believe the State’s witnesses as to [the blood samples], and it was authorized to do so.” (Citations omitted.) Jackson v. State, 188 Ga. App. 834, 838 (3) (374 SE2d 777) (1988). “[N]one of the points argued by appellant amounts to evidence of tampering or casts any doubt on the identity of the exhibits so as to amount to a broken chain of custody. There being, at most, bare speculation of tampering or substitution, the trial court correctly admitted the samples into evidence.” (Citations and punctuation omitted.) Brinson, supra at 557.

4. We do not agree with Lewis that the State was required to provide him with a copy of the gas chromatograph print-out of the blood test result. OCGA § 17-7-211 (b) entitled Lewis to copies of “any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant by the prosecution. ...” Lewis was provided with a copy of the Division of Forensic Sciences’ report containing the results of the blood test. “Even though he was not given a copy of the test print-out, this [report] is sufficient to give defendant notice of the test result.” Ratliff v. State, 207 Ga. App. 112, 113 (427 SE2d 85) (1993). Accordingly, we find no error here.

5. We also do not agree with Lewis that the blood test report should have been excluded as hearsay. “The [person] with first hand knowledge of the contents of [the report] testified at trial, and the trial judge was authorized to conclude that [the report] was made in the regular course of business and that it was in the regular course of business to make [the report]. . . . [Cit.]” Millwood v. State, 166 Ga. App. 292, 293 (5) (304 SE2d 103) (1983).

6. Lewis asserts as error the admission of testimony of the blood test results, because the best evidence of the results was not introduced by the State. Since Lewis “made no objection to the admissibility of the test results on the ground set forth in this enumeration, he cannot raise the issue for the first time on appeal. [Cit.]” Hudgins v. State, 176 Ga. App. 719, 721-722 (5) (337 SE2d 378) (1985).

7. Finally, Lewis contends the evidence was insufficient to support the verdict. We are satisfied that the evidence was sufficient to enable any rational trier of fact to find appellant guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Osteen v. State, 176 Ga. App. 722 (2) (337 SE2d 369) (1985).

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Andrews, Johnson and Smith, JJ., concur. Blackburn, J., concurs in part and dissents in part.

Blackburn, Judge,

concurring in part and dissenting in part.

I dissent from the majority’s judgment and its analysis in Divisions 2 and 3; however, I concur with the majority’s analysis in the remaining divisions.

In Division 2, the majority determines that although OCGA § 40-6-392 (a) (1) expressly requires the individual conducting the blood test to possess a permit, such a permit is not required because the rules of the Georgia Bureau of Investigation do not require a permit for blood tests performed by the Division of Forensic Sciences. The majority fails to recognize the superior authority of the Georgia legislature in the promulgation of OCGA § 40-6-392 over the rules adopted by the Georgia Bureau of Investigation.

In Harden v. State, 210 Ga. App. 673, 674 (436 SE2d 756) (1993), we recognized that OCGA § 40-6-392 established “a mandatory requirement applicable in any criminal case arising out of an alleged violation of OCGA § 40-6-391 and in which that violation is an essential element of the asserted criminal liability. The mandatory requirement is that when the State seeks to prove the violation by evidence of a chemical test, the State has the burden of demonstrating compliance with the statutory requirements.” (Citation and punctuation omitted.) Id. We determined the State’s failure to prove the qualifications of the person who withdrew the blood for testing rendered the evidence of the blood test inadmissible. Id. at 675.

OCGA § 40-6-392 (a) (1) requires that the person performing the test possess a valid permit. In the present case, the State did not present evidence that this requirement was met. Therefore, as in Harden, supra, I would find that the evidence of the blood test was inadmissible.

In Division 3, the majority finds that the State adequately proved the proper chain of custody. I cannot agree. The State failed to meet its burden of proving the proper chain of custody. The discrepancies in the descriptions of the samples’ color-coded stoppers and locker numbers by several witnesses cast doubt on the identity of the sample tested. This is not a case where two officers both remember being the person who mailed the correct blood sample to the laboratory, as in the Brinson case cited by the majority. Nor did the State’s explanation of the conflicting testimony (that the officer must have been mistaken as to the locker number containing the sample) demonstrate that the correct sample was tested, especially in light of the technician’s testimony regarding the color of the stoppers on the samples. See Williamson, cited by the majority.

The present circumstances go beyond a credibility and weight issue and the discrepancies are so numerous that the admissibility must be denied. Contrary to the argument of the majority, there was no evidence giving any assurance of the identity of the blood sample. Testimony revealed that the blood sample was put into two tubes in a certain locker. There was no evidence presented that those tubes were ever tested, as the tested tubes came from a different locker number and had different colored stoppers. At a minimum, this establishes that there has been a tampering with the evidence for which the State has offered no explanation. If these facts merely go to the weight of the evidence, the majority would preclude a defendant from ever being able to suppress illegal evidence as long as some possibility is offered by the State, in explanation, of one of the discrepancies. The explanation that the tested tube had a grey stopper (as did one of the original tubes), ignores the fact that the tubes were together and the original pair included a red-stoppered tube while the tested pair contained a yellow and black-stoppered tube. There is no explanation for how that occurred. It is the State which has the burden of proof, not the defendant. Under the present facts, the State has not established a reasonable assurance of the identity of the blood sample. See Patterson v. State, 224 Ga. 197 (2) (160 SE2d 815) (1968).

Decided December 5, 1994.

Robert W. Chestney, for appellant.

Gerald N. Blaney, Solicitor, Jessica R. Towne, Richard E. Thomas, Assistant Solicitors, for appellee.


source: Caselaw Access Project

author: Pope, Chief Judge. Beasley, Presiding Judge, Smith, Judge,

license: Public Domain

text:
    A94A1753.
    GLAZER et al. v. CRESCENT WALLCOVERINGS, INC. et al.
    (451 SE2d 509)
   Pope, Chief Judge.

We granted this interlocutory appeal to address a question of first impression: Where a tenant and landlord agree in a commercial lease not to sue each other for fire damage covered by insurance, can other allegedly negligent parties sued by the tenant (or his insurer) for such damage nonetheless seek contribution from the landlord? The trial court answered this question in the positive and denied the landlord’s motion for summary judgment. We disagree and reverse.

This case arises out of a fire in an office building. Plaintiffs, who are not parties to this appeal, are insurers of tenants who suffered property damage in the fire. Plaintiffs initially sued appellants Glazer and Emerik Properties Corporation (referred to collectively herein as “landlord”), alleging that landlord was negligent in the construction, maintenance and operation of the building. They also sued appellees Crescent Wallcoverings, Inc., GenCorp., Inc., and Square-D Company (referred to collectively herein as the “product defendants”), alleging that the product defendants had each manufactured or supplied products used in the building which were defective and caused or contributed to the rapid spread of the fire. Landlord moved for summary judgment based on a “Waiver of Subrogation” clause in each tenant’s lease which provided that the landlord and tenant waived the right to sue each other for property damage covered by insurance, regardless of whose negligence caused the damage. After landlord sent tenants an abusive litigation letter pursuant to OCGA § 51-7-80 et seq., tenants moved to voluntarily dismiss their claims against landlord. The trial court granted this motion over landlord’s objection, and then dismissed landlord’s motion for summary judgment as moot.

Plaintiffs’ claims against the product defendants remained pending, of course, and in the meantime the product defendants had filed cross-claims for contribution against landlord. Landlord moved for summary judgment on the product defendants’ claims for contribution, too. Landlord argued there could be no contribution because it could not be a joint tortfeasor with the product defendants as a matter of law, while the product defendants argued that their right to contribution should not be compromised by a lease agreement to which they were not a party. The trial court agreed with the product defendants and denied landlord’s motion.

1. As a preliminary matter, we address the dissent’s contention that the “Waiver of Subrogation” clauses landlord relies upon are unenforceable under OCGA § 13-8-2 (b). In pertinent part, this Code section provides that an agreement relative to the construction or maintenance of a building which purports to indemnify the promisee for damages resulting from the promisee’s negligence is unenforceable as a matter of public policy. However, our Supreme Court has recognized that parties to a building-related contract (such as a lease) can agree to look solely to insurance to cover their losses without violating this statute, and that an intent to do so is the “well-recognized meaning” of a “waiver of subrogation” clause. See Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27, 28 (1) (262 SE2d 794) (1980). Such an agreement does not violate the statute because it does not indemnify the promisee, but instead “shifts the risk of loss to the insurance company regardless of which party is at fault. [Cit.]” Id. at 29 (2).

The landlord and tenants in this case demonstrated their clear intent to look solely to insurance by inserting the following clause in their leases: “Waivers of Subrogation. Each of the parties hereto waives any and all rights of recovery against the other ... , for loss or damage to such waiving party or its property . . . arising from any cause insured against under the standard form of fire insurance policy. ...” (Latter emphasis supplied.) The dissent nonetheless suggests that the waiver of subrogation clauses are unenforceable because the leases did not also include a specific requirement that one or both parties obtain insurance. The Supreme Court in Tuxedo Plumbing and the Court of Appeals in subsequent cases inferred an intent to look solely to insurance from the inclusion of mandatory insurance provisions, regardless of whether the indemnification clauses in question mentioned insurance. See Tuxedo Plumbing, 245 Ga. at 28-29; Terrace Shopping Center Joint Venture v. Oxford Group, 192 Ga. App. 346 (384 SE2d 679) (1989); McAbee Constr. Co. v. Ga. Kraft Co., 178 Ga. App. 496 (343 SE2d 513) (1986). This does not mean, however, that there can never be a clear intent to look solely to insurance in the absence of a mandatory insurance provision. As in any situation involving the construction of a contract, magic words are not required, and the goal of the court is to look for the intent of the parties. See McAbee Constr., 178 Ga. App. at 498.

Unlike the cases cited above, the contractual waiver clauses in this case are explicitly labeled as “Waiver of Subrogation” clauses, clearly contemplate the existence of insurance, and by their terms do not apply in the absence of insurance. Thus, a mandatory insurance provision is unnecessary to show the parties’ intent to look solely to the insurer.

Central Warehouse &c. Corp. v. Nostalgia, Inc., 210 Ga. App. 15 (435 SE2d 230) (1993) is distinguishable, as the waiver clause in that case (which was not labeled “waiver of subrogation”) applied to all damages from insurable rather than insured causes. Since the waiver clause in that case did not necessarily contemplate the purchase of insurance and did not by its terms limit its applicability to situations in which there was insurance, the absence of a mandatory insurance provision rendered the waiver unenforceable; but these circumstances are not present here. To the extent that language in Central Warehouse suggests an intent to shift the risk to the insurer can only be expressed by a separate mandatory insurance provision, see 210 Ga. App. at 16-17, that language is disapproved. The “Waiver of Subrogation” provisions in the leases at issue here are not indemnification clauses void under OCGA § 13-8-2 (b), and are therefore enforceable.

2. We now return to the primary issue in this case: Given the enforceability of the “Waiver of Subrogation” provisions agreed to by the tenants and landlord, do they preclude the product defendants from seeking contribution from landlord? The product defendants could have a right to contribution from landlord only if they are compelled to pay a liability for which they and landlord are equally bound. See Klausman v. Klausman, 186 Ga. App. 669, 670 (368 SE2d 185) (1988); OCGA § 23-2-71. In denying landlord’s motion for summary judgment, the trial court relied on Marchman & Sons v. Nelson, 251 Ga. 475 (306 SE2d 290) (1983), in which the Supreme Court held that the parties’ joint liability did not have to be actually established by a judgment for contribution to be possible, and that the plaintiffs voluntary dismissal with prejudice as a result of a settlement with some defendants did not preclude the settling defendants from suing the non-settling defendants for contribution. Unlike plaintiffs in this case, however, the plaintiff in Marchman had a viable cause of action against the non-settling defendants when the suit began; the only bar to adjudication of the non-settling defendants’ joint liability was the plaintiffs’ dismissal of the case with prejudice.

Here, the tenants and landlord agreed not to sue each other before any loss occurred, so no cause of action by plaintiffs against landlord ever arose. Thus, this case is more analogous to cases in which we have held that a party who cannot be sued by a plaintiff due to spousal immunity or the exclusive remedy provision of the Workers’ Compensation Act also cannot be brought in as a third-party defendant on a claim for contribution. See Southern R. Co. v. Brewer, 122 Ga. App. 292 (176 SE2d 665) (1970) (spousal immunity); Central of Ga. R. Co. v. Lester, 118 Ga. App. 794, 803 (2) (165 SE2d 587) (1968) (workers’ compensation). The product defendants attempt to distinguish these cases on the grounds that spousal immunity and the exclusive remedy provision of the Workers’ Compensation Act are both bars to liability which are based on public policy, while the landlord relies instead on a contractual provision. A review of these cases shows, however, that the extension of the immunity to third-party situations was based not on public policy, but instead on a conceptual reality: contribution may only be sought from a joint tortfeasor, so where a party could not have been a joint tortfeasor as a matter of law at any time after the cause of action arose, contribution is not possible. For the same reason, the product defendants’ argument that the tenants and landlord could not waive their “right” to contribution by agreement is without merit; since the product defendants and landlord never were or could have been jointly liable to plaintiffs, the product defendants had no “right” to contribution to be waived.

If plaintiffs had not voluntarily dismissed their action against landlord, landlord’s motion for summary judgment based on the “Waiver of Subrogation” clause should have been granted. See Division 1. And if that motion for summary judgment had been granted, the product defendants clearly would not have been able to pursue contribution from landlord. Cf. Shackelford v. Green, 180 Ga. App. 617 (349 SE2d 781) (1986), aff’d, 257 Ga. 9 (356 SE2d 27) (1987) (recognizing that grant of summary judgment to alleged joint tortfeasor precludes other alleged tortfeasors from seeking contribution). The fact that plaintiffs dismissed their claims before summary judgment for landlord could be granted cannot and does not change this result.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Andrews and Blackburn, JJ., concur. Beasley, P. J., Johnson, Smith, and Ruffin, JJ., dissent.

Beasley, Presiding Judge,

dissenting.

I concur in Division 1 of the majority opinion, as it is clear from the contract that the intention of the parties was only to shift the risk of loss to insurers of the respective parties, which shift was dependent on the party’s purchase of insurance coverage. This does not at all constitute an agreement to indemnify or hold harmless a potential tortfeasor for a possible future tort, which is against the public policy expressed in OCGA § 13-8-2 (b).

However, this agreement between the landlord and tenant does not affect the contribution rights of third parties under OCGA § 51-12-32. They gave no consideration for the relinquishment of such rights against a joint tortfeasor. They have a cause of action which is not barred by the contract of others. The contract does not eliminate the status of the landlord as a tortfeasor but rather only bars an action by the tenant for the tort; the tenant received consideration when it granted the landlord this benefit.

Marchman & Sons v. Nelson, 251 Ga. 475, 477 (306 SE2d 290) (1983), demands this result. As taught in that case, “Our statute recognizes the continuing existence of the right of contribution against a joint tortfeasor who has been released. It recognizes the existence of the right of contribution where there is no judgment at all in the underlying suit, and even where there is no underlying suit filed. Thus, the right of contribution arises out of, but exists separately from, the rights present in the underlying suit.” (Footnote omitted.) The Supreme Court then held that the dismissal with prejudice of the underlying suit “is not a bar to an action for contribution by one joint tortfeasor against another joint tortfeasor.” Id. at 478. It follows that where a tortfeasor is protected from legal liability by an agreement to seek damages only from the tortfeasor’s insurer, so that there can be no judgment or even valid suit against the tortfeasor, the joint tortfeasor is not precluded from contribution. The latter’s statutory right is not cut off by the landlord’s separate contractual protection from assertion by the tenant of its right of action.

The result of the majority’s opinion is that the joint tortfeasor will be liable for the damage, if any, caused by the landlord.

For this reason, I respectfully dissent.

Smith, Judge,

dissenting.

I respectfully dissent. I cannot agree with the majority’s conclusion that this case is distinguished from Marchman & Sons v. Nelson, 251 Ga. 475 (306 SE2d 290) (1983), because here no valid cause of action ever arose for the plaintiffs against the landlord. In my view, although the tenants and the landlord agreed not to sue each other before the loss occurred, the lease provision creating that agreement was unenforceable as a matter of law. Therefore, no valid distinction exists between this case and Marchman & Sons; the plaintiffs had a valid cause of action against the landlord, and the landlord and the “product defendants” were joint tortfeasors amongst whom a right of contribution existed.

My conclusion that the lease provision is unenforceable is based upon OCGA § 13-8-2 (b), which for reasons of public policy prohibits in certain contracts any provision “purporting to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee, his agents or employees, or indemnitee.” The statute’s prohibition has been held applicable to leases. Borg-Warner Ins. Fin. Corp. v. Executive Park Ventures, 198 Ga. App. 70, 71 (400 SE2d 340) (1990).

An exception exists when the intent of the parties is not to indemnify or hold harmless any party from liability for its sole negligence but to shift the risk of loss to an insurer. See Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27 (262 SE2d 794) (1980); McAbee Constr. Co. v. Ga. Kraft Co., 178 Ga. App. 496 (343 SE2d 513) (1986). This exception, taken from a rule long recognized in other jurisdictions, was first set forth in Georgia in Tuxedo Plumbing. It applies “ ‘where parties to a business transaction mutually agree that insurance will be provided as a part of the bargain. . . .’ [Cits.]” Tuxedo Plumbing, supra at 28.

To come under this exception, therefore, the parties’ intention to make insurance coverage part of the bargain must be clearly evinced in the lease. In every case in which Georgia appellate courts have held this exception applicable, the contract specifically required one or both of the parties to purchase insurance coverage. See, e.g., Tuxedo Plumbing, supra; Vasche v. Habersham Marina, 209 Ga. App. 263, 264-265 (1) (433 SE2d 671) (1993); Whipper v. McLendon Movers, 188 Ga. App. 249 (1) (372 SE2d 820) (1988); McAbee Constr. Co., supra; Island Villa Dev. v. Bonner Roofing &c. Co., 175 Ga. App. 713 (334 SE2d 41) (1985). Moreover, in all the foreign authorities relied upon in Tuxedo Plumbing, from which the Georgia rule creating the exception was first taken, the contracts explicitly mandated insurance coverage. Id. at 28-29.

Although I agree with the majority that no “magic words” should be required, the crucial inquiry is whether the parties have made sufficiently clear their intent to shift the risk to an insurance carrier so as to invoke the exception to OCGA § 13-8-2 (b), by requiring insurance coverage. It is not this court’s function to assume such intent; when a mandatory insurance provision is absent from the contract, we may not and should not presume that the parties intended nonetheless that insurance must be provided. Central Warehouse &c. Corp. v. Nostalgia, Inc., 210 Ga. App. 15, 16-17 (1) (435- SE2d 230) (1993). This is not a blind insistence upon “magic words.”

In this case, an insurance requirement could have been inserted in the lease easily. Despite the landlord’s assertion to the contrary, however, such a provision is absent. Consequently, in my view, it is clear that the exception created in Tuxedo Plumbing does not apply. It follows, therefore, that here, as in Central Warehouse, supra, the exculpatory clause in the lease violates the public policy codified in OCGA § 13-8-2 (b); it is void and unenforceable as a matter of law.

Decided December 5, 1994.

Long, Weinberg, Ansley & Wheeler, M. Diane Owens, Margie M. Eget, for appellants.

Drew, Eckl & Farnham, Clayton H. Farnham, M. Reid Aeree, Jr., Todd A. Schweber, Mozley, Finlayson & Loggins, William D. Harrison, Bennett, Callahan & Schloegel, Michael T. Bennett, for appellees.

Because no contractual prohibition against it existed, the plaintiffs did have a valid claim against the landlord, and the landlord and the “product defendants” are joint tortfeasors. Marchman & Sons, supra, teaches that plaintiffs’ claim need not have been reduced to judgment and that the release does not affect the contribution rights among joint tortfeasors. As a result, it appears to me that the trial court’s denial of the landlord’s motion for summary judgment against the “product defendants” was eminently correct. I would affirm the judgment.

I am authorized to state that Judge Johnson and Judge Ruffin join in this dissent.

       Only Crescent Wallcoverings filed an appellee’s brief, and landlord attached to its brief copies of the other two product defendants’ dismissals of their claims against landlord. Parties cannot supplement the record through attachments to a brief, however, so we consider all three of the product defendants to be appellees. Fortunately, their status is not crucial to our analysis or to the outcome of the case.

       The product defendants/appellees do not raise this contention.


author: Andrews, Judge.

text:
    A94A1089.
    FIRST UNION NATIONAL BANK OF GEORGIA v. DAVIES-ELLIOTT, INC.
    (452 SE2d 132)
   Andrews, Judge.

First Union National Bank of Georgia (“the Bank”) appeals from the judgment entered on a jury’s verdict in this case in which a former customer, Davies-Elliott, Inc., was awarded breach of contract and conversion damages and attorney fees and expenses under OCGA § 13-6-11.

Viewed in favor of the jury’s verdict, the evidence was that Elliott operated a number of businesses using corporations, including maintenance of railroad tracks in Georgia and other states. In order to conduct this business in Vidalia for the Georgia Central Railroad, Elliott formed Davies-Elliott, Inc. with Davies, his then girl friend. In November 1990, Elliott went to the Vidalia branch of First Union and saw Ms. Willis in order to set up a commercial account fot Davies-Elliott, Inc. When Willis asked him to provide a corporate resolution concerning the account, Elliott advised that the corporate documents were being finalized by his attorney. Willis proceeded to open the account and then provided Elliott with a corporate resolution form which he took along with the signature card. When he returned to the Bank, the signature card contained as authorized signers on the account both Elliott and Davies. A corporate resolution dated November 13, 1990 was also provided, on the Bank’s form, reflecting that Elliott was president and treasurer and Davies was secretary of the corporation. Checks could be signed by either. Elliott was also the sole stockholder and director of the corporation.

Elliott and Davies also had a personal joint checking account at the Bank, a fact known to Willis.

Since the purchase of the Vidalia bank by First Union in 1987, all processing had been moved to Atlanta. A courier picked up the day’s work every afternoon around 2:00 p.m. and took it to the service center in Atlanta. The commercial account signature card was stamped received in commercial bookkeeping in Atlanta on November 5, 1990.

In January 1991, Davies had signed a general power of attorney allowing Elliott to, among other things, sign her name to checks and other documents, since he conducted some of his business out of town.

Several months later, Elliott and Davies had a personal falling out. On March 5, 1991, Davies left their home and checked into a motel. On the evening of March 11, 1991, Elliott received a phone call from Davies who said she was in Mobile and would not be back. Elliott told her he was taking her name off of both checking accounts. He asked her if she had any checks and she denied it.

Davies-Elliott, Inc. used a system of checks issued in books of 25 and Elliott had 200 to 250 checks remaining in the series. On his corporate bank statement received March 29, 1991, checks numbered 1249 to 1428 were processed. Elliott looked at his remaining books of checks and could not tell that any were missing, even though he was aware that Davies had broken into the house before leaving town and taken her personal belongings. In fact, the last check in the last book, no. 1625, had been removed by Davies.

On Tuesday March 12, Elliott went to the Bank and spoke to a teller about removing Davies’ name and was referred to Willis. Elliott informed Willis that he wanted Davies off his accounts. Elliott closed the joint personal account and opened a new one in his name only. Because he had a number of payroll checks outstanding on the corporate account, he asked Willis what to do. She gave him a “Customer Request For Name Deletion” form which he began to fill out and signed in her presence. She asked who he was going to substitute as a signatory and, since he did not know, he took the card with him. Elliott had also obtained from the Bank a form for corporate minutes. On that form, on March 12, 1991, he recorded his meeting in which he, as sole director of the corporation, voted to remove Davies from office and revoke any authority to bind the corporation.

On March 14, Elliott returned the request form to the Bank. Pursuant to the power of attorney, he had signed Davies’ name to the card and signed his name as witness. He gave the card to Willis, who noticed that he seemed upset. He asked her for assurance that there “was no way that anybody else can cash a check on this account but me, right?” She replied affirmatively. Upon looking at the card and seeing the corporate name and commercial account number, Willis realized that it was not appropriate for a commercial account, but was for use on a personal account. Although aware of this problem, Willis forwarded the card to Atlanta because she felt that commercial bookkeeping might go ahead and initiate the name removal. She did not contact Elliott about this problem or telephone or fax Atlanta.

The request card was stamped received on Tuesday, March 19, 1991, by the commercial bookkeeping section of the service center in Atlanta. Ms. Allen was the processor who handled matters from the Vidalia branch. Although she had no recollection of receiving the request, she stated that, because it was on a personal account form, upon receiving it she would have taken it to her unit leader for action.

Davies wrote check no. 1625 to herself in the amount of $35,500. The check was dated March 13 and deposited in her bank account in Louisiana on March 18, 1991. It was processed by the Federal Reserve System and received by Atlanta Federal Reserve on March 19. It entered the Bank’s commercial bookkeeping division on the evening of March 19, 1991. Processor Allen also filed all checks and other documents for Vidalia accounts. The computer which initially sorted incoming checks would separate checks over $10,000 for processor’s comparison of the check with the signature card. Upon arriving at work at 8:00 a.m., Bank procedure required that these large checks be handled by the processor first. Check no. 1625 would have been kicked out by the computer on March 19 and compared by Allen on March 20 with the original signature card on file for the account. However, since Davies’ name was still on the card because the request form had not been processed, there would have been no action taken. The check cleared the Bank.

On Thursday, March 21, 1991, when commercial bookkeeping was told by Vidalia that checks were bouncing on the Davies-Elliott account, Wyatt, the supervisor of commercial bookkeeping, went back through the checks and discovered the one signed by Davies. Wyatt also located the request form in his department and went to the signature card and marked through Davies’ name. He wrote on the card “Del. 3/12/91 notice rec’d 3/19/91 by C/B.”

On Friday, March 22, Elliott took his ledger and went to the Bank because he had been notified that Davies-Elliott, Inc. checks were being returned for insufficient funds. He tried to see Willis who was busy with another customer and he dealt with Ramsey. Ramsey and he compared his ledger and the computer’s listing of cashed checks and discovered the $35,500 check which he advised her he did not write. Ramsey called commercial bookkeeping in Atlanta and was told Davies had signed the check.

Ramsey got Willis, who talked to Atlanta and advised Elliott that the $35,500 was not going to be put back into the account.

Elliott contacted Truett, the Vidalia branch president, who told Elliott he was aware of the situation and the check would not be repaid.

The jury awarded Davies-Elliott, Inc. $35,500 (face amount of the check), the $300 in overdraft fees assessed against the account, and $52,000 in attorney fees.

1. The first two enumerations deal with attorney fees and will be considered together.

(a) The first is that the court erred in denying the Bank’s motion for partial summary judgment, directed verdict, and for j.n.o.v. as to attorney fees because a bona fide dispute existed between the parties.

The Bank’s contention concerning the denial of its motion for partial summary judgment is moot because of the subsequent entry of verdict and judgment and our conclusion that the evidence supports the verdict. Schirmer v. Amoroso, 209 Ga. App. 682, 683 (2) (434 SE2d 80) (1993); Canal Ins. Co. v. Wilkes Supply Co., 203 Ga. App. 35 (1) (416 SE2d 105) (1992).

In its motion for directed verdict the Bank contended that there was no showing of bad faith or stubborn litigiousness to warrant consideration of attorney fees under OCGA § 13-6-11. This argument was premised on this court’s prior opinion that Davies-Elliott was not entitled to partial summary judgment on the issue of the Bank’s liability, First Union Nat. Bank of Ga. v. Davies-Elliott, Inc., 207 Ga. App. 791 (429 SE2d 161) (1993), and on the argument that failure to pay a claim does not in itself give rise to liability under OCGA § 13-6-11.

In First Union, supra, this court held that the trial court’s ruling based on its analogy of this situation with a stop payment request under OCGA § 11-4-403 was improper primarily because it had been premised upon the affidavit of an expert in banking which could not alone support summary judgment. Id. at 792 (1). Questions of fact remained as to the nature of the Bank’s duty, whether that duty was breached, and as to the Bank’s defense based on constructive fraud.

“A directed verdict is not authorized unless the evidence and all reasonable deductions therefrom demand a certain verdict. OCGA § 9-11-50; [cit.]. And, where a directed verdict was denied and the jury has made a certain ruling, the evidence is to be construed in favor of the jury’s finding and in favor of the non-movant, and a trial court cannot substitute its judgment for the jury’s if there is ‘any evidence’ to support it. [Cits.]” Deloitte, Haskins & Sells v. Green, 198 Ga. App. 849, 852 (1) (403 SE2d 818) (1991); Backus Cadillac-Pontiac v. Ernest, 195 Ga. App. 579, 581 (2) (394 SE2d 367) (1990).

Even assuming, without deciding, that the existence of the prior appeal demonstrated a “bona fide controversy,” under OCGA § 13-6-11, that does not preclude the jury’s consideration of whether the Bank demonstrated “bad faith” in its dealings with Davies-Elliott, Inc. Ostrom v. Kapetanakos, 185 Ga. App. 728, 729 (2) (365 SE2d 849) (1988); Jackson v. Brinegar, Inc., 165 Ga. App. 432, 436 (301 SE2d 493) (1983).

“As a general matter, determination of whether litigation expenses are to be allowed as a portion of damages is a matter for the jury. [Cits.] It is a question of fact whether a defendant has acted in bad faith or has been stubbornly litigious or caused unnecessary litigation and expense where there was no bona fide controversy. [Cit.] Likewise, it is ‘for the jury to determine whether there was a bona fide controversy,’ McDevitt & Street Co. v. K-C Air &c., 203 Ga. App. 640, 645 (5) (418 SE2d 87) (1992), unless the facts preclude such a finding as a matter of law.” Webster v. Brown, 213 Ga. App. 845, 846 (2) (446 SE2d 522) (1994).

“ ‘A judgment n.o.v. is properly granted only when there can be only one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is not error to deny the motion. (Cits.)’ Stone v. Cook, 190 Ga. App. 11, 12 (1) (378 SE2d 142) (1989).” Ga. Ports Auth. v. Southeast Atlantic &c., 202 Ga. App. 318, 324 (3) (414 SE2d 232) (1991).

There was no error in denying the motion for directed verdict and j.n.o.v. on the basis that there was, as a matter of law, a bona fide dispute. Nor was there error denying the motion for new trial on the same grounds. Ga. Ports Auth., supra at 324 (4).

(b) The second enumeration is that the court erred in denying the j.n.o.v. on attorney fees because the amount awarded for attorney fees, $52,000, was not supported by the evidence.

Cheney, one of Davies-Elliott, Inc.’s two trial attorneys, testified concerning attorney fees and expenses. Cheney practiced in a firm with his brother and sister-in-law. Edenfield, the second trial attorney, practiced by himself, did not keep time records, and was handling the case on a contingency basis. Edenfield did not testify or present any evidence on the attorney fees issue.

Cheney testified that the case was also being handled by his firm as a contingency case, although his firm, as a matter of practice, kept time records on all their cases. Cheney testified that, for his firm, a total of 269 hours had been spent pre-trial by lawyers in his firm and that $100 was a reasonable hourly rate for the area. He stated that his brother and sister-in-law worked on aspects of this case, but provided no specifics. Except as to meetings in which he personally participated, any knowledge of his as to work performed by others would be hearsay and would not support an award of attorney fees. Mitcham v. Blalock, 214 Ga. App. 29, 32 (2) (447 SE2d 83) (1994).

“A court may consider a contingent fee agreement and the amount it would have generated as evidence of usual and customary fees in determining both the reasonableness and the amount of an award of attorney fees. [Cit.]” Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 403 (1) (433 SE2d 606) (1993). Here, however, there was no evidence of the percentage contingency which either firm was charging. Compare Walther v. Multicraft Constr. Co., 205 Ga. App. 815, 817 (3) (423 SE2d 725) (1992). The amount of attorney fees awarded, $52,000, is nearly one-and-one-half times the amount of damages awarded and cannot be said to be reasonable. Id. at 817 (4).

Also, here there was a finding in favor of the Bank on the claims for punitive damages and no recovery of attorney fees attributable to these claims could be had. Mitcham, supra at 33 (2). Therefore, the award for attorney fees is vacated and the case remanded for an evidentiary hearing on the amount of reasonable attorney fees. Id.

2. The third enumeration alleges error in the trial court’s denial of the Bank’s motion for directed verdict, new trial, or j.n.o.v. on Davies-Elliott’s breach of contract claim. At trial in its motion for directed verdict and in the motion for j.n.o.v., the Bank alleged that there was no evidence of a contract between Davies-Elliott and therefore, the Bank could not have been found guilty of any breach thereof.

The signature card by which the account was opened was introduced by Davies-Elliott, Inc. and the Bank. It states that “[i]t is agreed that FUNB-GA will recognize the signatures below in the payment of funds or in the transaction of other business for the accounts). I/We agree to the terms and conditions of the FUNB-GA Depositor’s Agreement for this account(s) and authorize FUNB-GA to establish my/our account(s).”

“The deposit agreement, if any, the signature card and the checks drawn against the account are the contract documents between the bank and the customer.” Fed. Deposit Ins. Corp. v. West, 244 Ga. 396, 399 (260 SE2d 89) (1979); 944, Inc. v. Ga. State Bank, 198 Ga. App. 893, 894 (1) (403 SE2d 466) (1991).

Therefore, there was evidence from which the jury could conclude that there was in effect a written contract. Id. Even absent such a contract, however, there was at least evidence sufficient to raise the issue of an implied trust. 944, Inc., supra at 895 (1).

The Bank’s argument that a change in authorized signers on the corporate account could not be made without a contemporaneous corporate resolution based on language in the deposit agreement is also unavailing. The agreement states that “[y]ou are required to provide us with any resolutions which change the authorized signature(s).” It does not state that providing the resolution is a condition precedent to the effectiveness of any change in signatories.

Even assuming, however, that the document could be so read, there is no question that the Bank opened the account without a contemporaneous resolution and, therefore, was required to notify Davies-Elliott, Inc. of its intent to rely on strict compliance with the contract. OCGA § 13-4-4. The issue of whether there had been a joint departure from the contract terms is ordinarily a question for the jury. Cho v. South Atlanta Assoc., 200 Ga. App. 737, 739 (2) (409 SE2d 674) (1991); see Rossville Bank v. Southeast Fed. &c. Bank, 192 Ga. App. 384, 386 (2) (385 SE2d 9) (1989).

Therefore, denial of the motion for directed verdict or j.n.o.v. on the stated ground was not error.

3. The Bank’s fourth enumeration alleges error in the trial court’s failure to give its Requests to Charge Nos. 5, 6, 9, and 11, which dealt with the formalities required for a corporate officer, here Davies, to properly execute documents, and delegate duties, and the formalities of authenticating corporate documents.

All of these requests to charge were premised on the Bank’s contention that the Request for Name Deletion had not been properly executed by Davies or by Elliott under the power of attorney, and, therefore, the Bank was not obligated to do anything regarding the request until a formal corporate resolution had been provided. As discussed in Division 3, supra, the jury could decide if the course of conduct between the parties altered the technical requirements of the agreement.

“The existence of a corporation cannot be attacked by persons who have dealt with it as a corporation. [Cits.]” Walker v. Joanna M. Knox & Assoc., 132 Ga. App. 12, 13 (2) (207 SE2d 570) (1974). It follows that once such a course of conduct by the Bank has been shown, instruction on the technical requirements of complying with the formalities is unnecessary, as not adjusted to the evidence. Stinson v. Allstate Ins. Co., 212 Ga. App. 179, 182 (2a) (441 SE2d 453) (1994). There was no error.

4. Enumerations 5 through 7 deal with claimed errors in the charge as given and are considered together.

(a) The language objected to in enumeration no. 5 was that the Bank “may not disclaim its responsibility for its lack of good faith exercised towards the depositor.” Also, the court charged that “[a] bank may not limit the measure of damages for a lack or failure to exercise ordinary care in handling deposits or payments for a depositor.” The language in the charge is based on OCGA § 11-4-103 (1) which provides that “the provisions of [Article 4] may be varied by agreement except that no agreement can disclaim a bank’s responsibility for its own lack of good faith or failure to exercise ordinary care or can limit the measure of damages for such lack or failure. . . .” (Emphasis supplied.)

The objections voiced below were that this charge was not appropriate because “there has been no attempt by the bank to disclaim its responsibility. There is no issue of lack of good faith. . . . [W]e haven’t attempted to limit any measure of damages.”

Willis’ testimony, however, was that the reason she forwarded the improper form of request to Atlanta to see if commercial banking would take any action was because of indemnification language which was contained on that form. Therefore, there was some evidence to support the charge given.

(b) The charge objected to in the seventh enumeration was that dealing with a mutual departure from the terms of the contract. The Bank argues there was no evidence to support such a charge. As discussed in Division 2, there was such evidence and the charge as given was not in error.

(c) The final objected-to charge deals with constructive fraud, asserted by the Bank in defense of the action.

Although not clear from the enumeration of error and the argument, we discern that the Bank complains only of the following sentence regarding this defense: “[b]efore a party is entitled to relief on the ground of fraud, deceit, or misrepresentation, it must appear that the party asserting fraud used ordinary care to find out the facts and protect against the loss.” The objection made was that it was “in essence saying we [the Bank] had an affirmative duty where he didn’t disclose to ask him. That duty to find out and discover the fraud is applicable only where the fraud is active, not passive, or not by nondisclosure.”

The objected-to sentence followed a page and one-half of the Bank’s Requests for Instruction Nos. 12, 13, 14, and a portion of No. 15, dealing with constructive fraud. As set out in the Bank’s answer to the complaint, the Bank contended that it was induced by this fraud, “whether actual or constructive, to do the alleged acts upon which the Complaint is based. . . . Plaintiff omitted to tell . . . that the name deletion form was executed through a power of attorney, Davies had been removed as secretary of Plaintiff, Davies had threatened to remove monies from [the] account. . . .”

“ ‘[I]n an arms-length business or contractual relationship there is no obligation to disclose information which is equally available to both parties. (Cits.) Under such circumstances, actionable fraud cannot be shown unless the (party alleging fraud) exercised due care to discover the fraud. (Cit.) . . .’ Southern Intermodal Logistics v. Smith & Kelly Co., 190 Ga. App. 584, 585 (1), 586 (379 SE2d 612) [(1989)].” First Union Nat. Bank of Ga. v. Gurley, 208 Ga. App. 647, 649 (1) (431 SE2d 379) (1993).

There was no error in the charge given.

5. Finally, the Bank enumerates the denial of its motion for directed verdict, j.n.o.v. or new trial on the conversion claim in which Davies-Elliott, Inc. sought to recoup the $300 in overdraft charges assessed by the Bank after check no. 1625 was paid and not reimbursed.

The initial motion made by the Bank was directed at its contention that Davies-Elliott, Inc. was alleging that the payment of the $35,500 check was a conversion of those funds. After clarification that the claim being tried was only for conversion of the overdraft charges, the only motion made by the Bank was “I certainly contend there was no conversion with regard to the funds on the overdrafts.”

Denial of the motion as stated was not error, since, if the payment of the check was improper, the overdraft charges were improper. Ga. Ports Auth., supra.

Judgment affirmed in part, reversed in part and case remanded.

Beasley, P. J., and Johnson, J., concur.

Decided November 22, 1994

Reconsideration denied December 6, 1994

Newton, Smith, Durden, Kaufold & Rice, Howard C. Kaufold, Jr., for appellant.

Spivey, Carlton & Edenfield, J. Franklin Edenfield, Glen A. Cheney, for appellee.

       Davies-Elliott also made claims for punitive damages. As to these claims, the jury found in favor of the Bank.

       At trial, Willis testified that, during their initial conversation, she “assumed” that Elliott was discussing only his and Davies’ joint personal account and not the corporate account. For purposes of review, this court takes the evidence with all factual disputes and inferences in favor of the jury’s verdict. Pendley v. Pendley, 251 Ga. 30, 31 (1) (302 SE2d 554) (1983). Further, as a matter of law, if the account had been their personal joint account, the only way to change the terms of a multiple party account was to close it and reopen it under different terms or by a modification agreement signed by both parties. OCGA § 7-1-814; Bank South v. Harrell, 181 Ga. App. 64 (351 SE2d 263) (1986).

       Although other legal arguments are presented in the brief on appeal, they were not included in the motions for directed verdict or j.n.o.v., and will not be considered here for the first time. Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858 (2) (360 SE2d 418) (1987).


author: Blackburn, Judge.

text:
    A94A1669, A94A1676.
    HODGE et al. v. JENNINGS MILL, LTD. et al.; and vice versa.
    (451 SE2d 66)
   Blackburn, Judge.

Plaintiffs, Jennings Mill, Ltd. (“Jennings Mill”), and its general partner and limited partners brought an action against its former counsel, defendant, G. Marcus Hodge and other principals of the law firm Fortson, Bentley & Griffin (“FBG”), to recover damages arising from defendant’s conduct in the handling of the sale of the Jennings Mill Country Club to a third-party purchaser, J. M. Athens, Inc. (“Athens”). The complaint alleges that FBG, in fact, represented both Jennings Mill and Athens in the transaction. The complaint originally sought damages on three alternative legal theories: breach of the contract of representation, breach of fiduciary duty, and fraud and was filed without an OCGA § 9-11-9.1 affidavit. Defendants raised the failure to include an OCGA § 9-11-9.1 affidavit in their answer and Jennings Mill subsequently amended its complaint by adding a fourth count denominated “Professional Malpractice” and filing therewith an OCGA § 9-11-9.1 affidavit. The fourth count was based on the same facts alleged in the initial complaint.

Having raised the failure to comply with OCGA § 9-11-9.1 in its initial responsive pleading, FBG moved to dismiss the complaint and the amended complaint for failure to submit an expert affidavit pursuant to OCGA § 9-11-9.1. Thereafter, the trial court entered an order denying the motion to dismiss with respect to Count 1 (breach of contract) and Count 3 (fraud), and granting the motion as to Count 2 (breach of fiduciary duty), insofar as it sounded in professional malpractice, and granting the motion as to Count 4 (professional malpractice). This interlocutory appeal followed.

FBG contends that the trial court erred in denying its motion to dismiss the amended complaint in its entirety. In particular, it argues that expert testimony is essential to defending against the remaining claims of error asserted by Jennings Mill as they arise in the context of attorney-client relations with Jennings Mill and Athens.

OCGA § 9-11-9.1 (a) provides: “In any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which shall set forth at least one negligent act or omission claimed to exist and the factual basis for each such claim.” (Emphasis supplied.) “This statute applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.” Barr v. Johnson, 189 Ga. App. 136, 137 (375 SE2d 51) (1988).

In Hughes v. Malone, 146 Ga. App. 341 (247 SE2d 107) (1978), this court held that a complaint seeking damages for an attorney’s want of professional skill and diligence in the conduct of his client’s business is a “malpractice claim,” whether the negligent acts were wilful or negligent. Id. at 344-347. “Webster’s Third International Dictionary defines ‘malpractice’ as ‘a dereliction from professional duty whether intentional, criminal, or merely negligent by one rendering professional services that results in injury, loss, or damage to the recipient of those services or to those entitled to rely upon them or that affects the public interest adversely; the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services or to those entitled to rely upon them.’ ” Gillis v. Goodgame, 199 Ga. App. 413, 415 (404 SE2d 815) (1991).

While misconduct by one who is a professional may take many forms, i.e., negligence, intentional acts, criminal acts, or fraudulent acts, the affidavit requirements of OCGA § 9-11-9.1 are limited to those claims “for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.” Barr v. Johnson, supra at 137. “[A]n expert affidavit was required by OCGA § 9-11-9.1 because professional negligence was alleged.” (Emphasis supplied.) Gillis, supra at 415.

Not every claim which calls into question the conduct of one who happens to be a lawyer is a professional malpractice claim requiring expert testimony or an OCGA § 9-11-9.1 affidavit. It is only where the claim is based upon the failure of the professional to meet the requisite standards of the subject profession that the necessity to establish such standards and the violation thereof by expert testimony for the guidance of the jury arises. Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107 (354 SE2d 872) (1987).

The reason expert testimony is required in professional malpractice cases is that “the court and the jury must have a standard measure which they are to use in measuring the acts of the [professional] in determining whether he exercised a reasonable degree of care and skill [in carrying out his professional duties]. . . . The proper standard of measurement is to be established by testimony of [professionals]; for it is a [professional] question.” Pilgrim v. Landham, 63 Ga. App. 451, 455 (11 SE2d 420) (1940). Where the claim does not bring into issue a professional question, there is no need as to that claim, to establish professional standards. “Thou shalt not defraud,” is a proposition that is understood by even the most uneducated layman. Indeed, what professional could deny its propriety? It follows therefore that no expert testimony is required to establish that it is improper for attorneys to defraud their clients. It is improper for any person to defraud another as that is a standard of society, from which no one is excepted.

Decided November 2, 1994

Reconsideration denied December 6, 1994

Bondurant, Mixson & Elmore, Emmett J. Bondurant, Michael B. Terry, for appellants.

O. Hale Almand, Roy W. Griffis, Jr., for appellees.

Accordingly, the trial court properly denied defendant’s motion to dismiss Count 3 as it sounded in fraud and required no OCGA § 9-11-9.1 affidavit; properly granted said motion as to Count 4 which sounded in malpractice and Count 2, an alleged breach of fiduciary duty to the extent it sounded in malpractice; and erred in failing to dismiss Count 1, breach of contract, to the extent it sounded in malpractice.

Jennings Mill’s cross-appeal as to the grant of defendants’ motion to dismiss Count 4, as sounding in malpractice and Count 2 to the extent that it sounded in malpractice is without merit.

Affirmed in part and reversed in part.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A1826.
    EL-AMIN v. NALLEY MOTOR TRUCKS et al.
    (451 SE2d 61)
   Blackburn, Judge.

Appellant, Abdul R. El-Amin, appeals the order of the trial court granting appellees, Nalley Motor Trucks’ (“Nalley”) and PACCAR Financial Corporation’s, motions for summary judgment in a suit for damages arising out of El-Amin’s purchase of a used tractor-trailer truck.

In September 1992, El-Amin bought a used Peterbilt tractor-trailer from Nalley for use in his work as an independent truck driver. In making the purchase, El-Amin signed a number of documents, among them an Installment Sales Contract, a Dealer’s Warranty Disclaimer, and a Non-Leased Vehicles Odometer Disclosure Statement. The latter indicated the truck’s odometer then read 191,740 miles. After driving the truck for nine months without incident, the truck suffered engine failure when a piston broke through the engine block. El-Amin had the vehicle towed to Nalley for repairs, but subsequently learned that the engine was not under warranty and that necessary repairs would cost $6,000.

In three enumerations of error, El-Amin asserts that jury questions reasonably exist as to whether Nalley fraudulently misrepresented actual mileage on the truck it sold him; whether such misrepresentation substantially impaired the value of the truck, enabling El-Amin to revoke acceptance of the same pursuant to OCGA § 11-2-608; and, whether the Dealer’s Disclaimer of Warranty was effective in light of the alleged misrepresentation.

To prevail at summary judgment a movant/defendant must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. Summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

The record before us unequivocally establishes that El-Amin read and signed the Non-Leased Vehicle Odometer Disclosure Statement that Nalley provided him at the time of purchase. It pertinently provided that the “odometer reading is NOT the actual mileage. WARNING ODOMETER DISCREPANCY.” Upon being deposed, El-Amin stated that Nalley told him that it did not know what the correct mileage on the truck was when he questioned the odometer reading. Moreover, the Installment Sales Contract and the Dealer’s Warranty Agreement he signed indicated that the truck was being sold “as is” and “with all faults.” The record does not otherwise reflect any misrepresentation or ambiguity. Accordingly, summary judgment was proper. Castellana v. Conyers Toyota, 200 Ga. App. 161, 165 (407 SE2d 64) (1991) (“The construction of a contract is a matter of law for the court . . . , particularly where . . . the terms are unambiguous. It is thus a matter peculiarly well suited for adjudication by summary judgment.”).

Inasmuch as we have concluded that mileage was not misrepresented, we do not reach El-Amin’s remaining claims of error.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

Decided October 21, 1994

Reconsideration dismissed November 7, 1994 and Reconsideration denied December 6, 1994

Allen W. Johnson, for appellant.

Goldner, Sommers, Scrudder & Bass, Glenn S. Bass, B. David Ladner, Alston & Bird, Alston D. Correll, James W. Hagan, Dara S. Grossinger, for appellees.


text:
    A94A1840.
    COTTON STATES MUTUAL INSURANCE COMPANY v. WOODRUFF.
    (451 SE2d 106)
   Andrews, Judge.

Robert Woodruff obtained auto insurance from Cotton States Mutual Insurance Company (“Cotton States”) in 1991 for his three vehicles. In 1992 he deleted his Toyota pickup truck from the policy. In 1993, however, Woodruff drove the Toyota to Florida where it was involved in an accident with a bicyclist on May 6 at 12:20 a.m. Upon returning home, Woodruff called Cotton States and asked that the Toyota be added back to the insurance policy. Because he did not expect to obtain coverage for the accident earlier in the day, Wood-ruff did not then report the accident to Cotton States. As a matter of practice, Cotton States bound coverage and issued its amended declarations as “effective 12:01 a.m. on May 6, 1993,” the date of issue. Woodruff paid and Cotton States accepted the appropriate premium.

Woodruff subsequently reported the May 6 accident in order to seek Cotton States’ advice in handling the bicyclist’s claim. Cotton States filed a petition seeking an equitable reformation of Woodruff’s insurance policy on grounds of mutual mistake. The trial court denied Cotton States’ motion for summary judgment. Following the Supreme Court’s transfer of the case to this court, we granted the insurer’s application for interlocutory review of the trial court’s order.

1. Cotton States challenges the trial court’s denial of its motion for summary judgment, contending first that the automobile insurance policy as written reflects the parties’ mutual mistake in the effective time of coverage since neither party intended the prior accident at 12:20 a.m. on May 6, 1993, would be covered under the policy.

“Reformation as applied to a contract is a remedy cognizable in equity for the purpose of correcting an instrument so as to make it express the true intention of the parties, where from some cause, such as fraud, accident, or mistake, it does not express such intention. The remedy is not available for the purpose of making a new and different contract for the parties, but is confined to establishment of the actual agreement. Code, §§ 37-202, 37-207, 37-208, 37-215. [OCGA §§ 23-2-21, 23-2-31, 23-2-30, 23-2-25.]” Deck v. Shields, 195 Ga. 697, 701-702 (25 SE2d 514) (1943). “A mistake relievable in equity is some unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence.” OCGA § 23-2-21 (a). Where reformation is sought on the ground of mutual mistake, it must, of course, be proved to be the mistake of both parties. Layfield v. Sanford, 247 Ga. 92, 93 (274 SE2d 450) (1981).

There was no mutual mistake here. The record, viewed on motion for summary judgment in a light most favorable to the non-moving party, shows that Woodruff “didn’t know if [he] could assume coverage or not, being that [the Toyota pickup] wasn’t specifically listed [on the policy].” Despite Cotton States’ claim that it did not intend to provide coverage for the accident that had occurred prior to Wood-ruff’s request for coverage on the Toyota, the insurer’s standard practice of ante-dating its policies for 12:01 a.m. on the date of issue inherently risks such a result especially where, as here, the insurer negligently fails to inquire whether there is any reason not to follow standard practice.

2. Cotton States also argues that even if the mistake were unilateral, Woodruff’s inequitable conduct in failing to disclose his prior accident on May 6 entitles the insurer to reform the contract.

“[E]quity will reform a written instrument for the unilateral mistake of one party accompanied by fraud or inequitable conduct on behalf of the other party.” Layfield, supra. “As a general rule, ‘(i)f a party, by reasonable diligence, could have had knowledge of the truth, equity should not grant relief. . . .’ OCGA § 23-2-29. However, this provision has a statutory exception promulgated in OCGA § 23-2-32 (b). Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 403 (349 SE2d 368). OCGA § 23-2-32 (b) provides ‘(r)elief may be granted even in cases of negligence by the complainant if it appears that the other party has not been prejudiced thereby.’ [Cit.]” Brannen v. Gulf Life Ins. Co., 201 Ga. App. 241, 244 (410 SE2d 763) (1991). Cotton States argues reformation is demanded because it would not have effected coverage at 12:01 a.m. on May 6 if it had known about Woodruff’s 12:20 a.m. accident. The insurer contends Woodruff inequitably withheld this information when he requested coverage for the Toyota pickup under his policy.

When he called his Cotton States agent on May 6, Woodruff thought it “was not only unlikely but not reasonable” to obtain insurance coverage for the accident earlier that day, but he “thought [he’d] go ahead and get [the Toyota pickup] on the policy.” He did not mention the accident when he requested coverage on the Toyota because he “was having doubts” concerning what he should do and “was still shook up about [the accident and the bicyclist’s condition].”

Decided November 22, 1994

Reconsideration denied December 6, 1994

Young, Clyatt, Thagard & Hoffman, F. Thomas Young, Sherry S. Harrell, Russell C. Wallace, for appellant.

Dillard, Bower & East, Terry A. Dillard, Robert W. Lamb, for appellee.

Under these circumstances, the trial court should have granted summary judgment to Cotton States on its petition for reformation. It is possible that Cotton States, upon inquiry, may have known the truth that Woodruff’s Toyota pickup had been involved in an accident earlier on May 6, and thus, the insurer could have effected coverage after the accident. However, it is also clear that Woodruff “rather than being prejudiced by the negligence of [Cotton States] stands, in fact, to obtain a windfall [insurance coverage] not bargained for absent the equitable remedy of reformation.” Brannen, supra at 244. Woodruff knew the Toyota was not covered under his insurance policy when he drove it to Florida. Moreover, he spent three days in Florida without effecting coverage on the vehicle he was driving. Because the evidence demands reformation, summary judgment for Cotton States is appropriate.

Judgment reversed.

Beasley, P. J., and Johnson, J., concur.


text:
    A94A2101.
    PHILLIPS v. PACIFIC & SOUTHERN COMPANY et al.
    (451 SE2d 100)
   Andrews, Judge.

Phillips sued Pacific & Southern Company and its parent company, Gannett Company, Inc. d/b/a WXIA-TV and the president and general manager and the news director of WXIA-TV in a multi-count complaint arising out of his termination as a reporter and news anchor for WXIA-TV. The trial court granted summary judgment in favor of the defendants on all counts of the complaint alleging invasion of privacy, breach of contract, tortious interference with employment and intentional infliction of emotional distress. In his sole enumeration of error, Phillips claims the trial court erred by granting summary judgment for the defendants on his claim for intentional infliction of emotional distress.

The evidence shows that, as a reporter for WXIA-TV, Phillips was assigned to cover the homicide investigation in a highly publicized murder case. While covering the investigation, Phillips and others, who were sources of information for Phillips during his coverage, were approached by a motion picture producer about the possibility of selling the rights to their experiences in connection with the murder case for the purpose of using those experiences in the production of a movie or docudrama based on the murder case. Phillips and two of his sources subsequently signed a document purporting to be an option agreement with a movie production company, which provided that the company had an exclusive 30-day option to purchase their “life stories” including all of their experiences concerning the murder case Phillips was covering. If exercised, the option provided that the three would split payments of $100,000 for production of a two-hour docudrama; $200,000 for a four-hour docudrama, or $300,000 if a six-hour docudrama was produced.

According to Phillips, he immediately informed the defendants of his contact with the motion picture producer and of his agreement with his sources in the murder case that they would jointly participate in the proposed movie project. As to the option agreement, Phillips asserts that he informed the defendants of the agreement. In response to the defendants’ claims that they were not aware of the terms of the option agreement, Phillips stated that the defendants never requested that he advise them of the terms of the agreement and that he was under no affirmative duty to inform them. It is unclear whether the option agreement, as signed, was legally binding and, ultimately, the option was never exercised by the production company. Phillips contends that he later decided not to pursue the movie project based in part on concerns expressed by a news anchor at WXIA-TV that the movie deal was a breach of journalistic ethics and that his credibility as a reporter would be compromised by an agreement giving him and his sources in the murder case a financial interest in the outcome of the case.

After Phillips and his sources signed the option agreement, they were subpoenaed to testify at a pre-trial hearing in the murder case held for the purpose of determining whether any witnesses in the case had entered into movie deals or other agreements giving them a financial interest in the outcome of the case, which might have an influence on their testimony in the case. At the hearing, which was widely covered by the news media, Phillips testified about the earlier agreement with his sources to jointly participate in a movie project concerning the case and about the option agreement. Shortly after the hearing, WXIA-TV terminated Phillips and broadcast a statement that: “WXIA-TV has today terminated the employment of Dean Phillips. Station management was not aware of the terms of an agreement which Dean Phillips had signed in April with Treasure Island Productions relating to a docudrama production of the Sara Tokars murder until last Friday, and immediately upon learning of those terms, station management removed him from the Sara Tokars case and his other station assignments while the matter was being reviewed. After review, the station concluded it was necessary to terminate Mr. Phillips.” Privately, Phillips received a letter from WXIATV informing him that he was terminated because the option agreement he signed with his sources violated the ethics policy of WXIATV and had irreparably damaged his credibility as a reporter and news anchor for WXIA-TV.

Phillips contends that the management of WXIA-TV knew about and initially approved of his involvement in a potential movie project with his sources on the murder case he was assigned to cover. He claims that, after the potential movie project was publicized at the pre-trial hearing in the murder case and public criticism arose over the journalistic ethics of his participation in such an agreement, WXIA-TV management falsely told him that they had no prior knowledge of his actions with respect to the proposed movie project. Phillips also contends that the statement publicly aired by WXIA-TV was a false or misleading statement about the reasons for his termination, broadcast by the defendants in an effort to protect the station from criticism about its prior knowledge and approval of his participation in the proposed movie project. The WXIA-TV news director asserted that Phillips was not given permission to enter into a business relationship with any of his sources or into a motion picture agreement regarding the case he was covering; that he told Phillips it would be inappropriate for him to enter into any such deals while covering the case as a WXIA-TV reporter, and that he first learned of the option document signed by Phillips at the time of Phillips’ testimony at the pre-trial hearing in the murder case. Of course, in reviewing the grant of the defendants’ motion for summary judgment, we must construe the record and all inferences therefrom in favor of Phillips, as respondent to the motion.

The tort of intentional infliction of emotional distress is comprised of four elements, all of which must be established in order for the claimant to recover: “ ‘(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; (4) The emotional distress must be severe.’ ” Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (335 SE2d 445) (1985). First, the record supports, and Phillips does not dispute, the claim of WXIA-TV that, at the time he was terminated, Phillips was an at-will employee who could be terminated with or without cause and without regard to the motives of his employer. Borden v. Johnson, 196 Ga. App. 288, 289 (395 SE2d 628) (1990). Accordingly, “that appellees discharged [Phillips] for whatever reason, without more, gives rise to no claim for the intentional infliction of emotional distress.” Id. at 290-291. Secondly, a distinction must be made between the causes of the emotional distress suffered by Phillips as a result of the events in this case. As he alleges, Phillips has suffered emotional distress resulting from humiliation and embarrassment in the news broadcasting industry because of public criticism that the agreement he made with his sources to participate in a movie project was a breach of journalistic ethics. Phillips suffered this criticism as a result of his own actions in making the agreement with his sources. There is no evidence that public criticism of Phillips in the news broadcasting industry over the perceived breach of journalistic ethics would have ceased or lessened even if WXIA-TV had acknowledged that it knew about and approved of Phillips’ actions. Accordingly, the defendants’ alleged wrongful conduct was not a cause of a substantial portion of the emotional distress suffered by Phillips. Bridges, supra at 230.

Construing the record in favor of Phillips’ contentions, there is evidence that the defendants knew about and approved of his agreement with his sources to split the proceeds of a possible movie project based on the murder case, even though Phillips did not tell the defendants about the specific terms of the agreement, and that the defendants withdrew their approval only after the agreement was publicly revealed by Phillips’ testimony at a hearing in the murder case and subsequently criticized by others as a breach of journalistic ethics. The essence of Phillips’ claim is that the defendants: (1) lied to him by contending that his actions had not been approved and then wrongly terminated him on the basis that those actions destroyed his credibility as a reporter and news anchor for WXIA-TV; and (2) publicly broadcast a false or misleading statement about the reason for his termination to protect WXIA-TV from criticism for his actions. Phillips claims that as a result of the actions taken by the defendants he has been unable to find employment in the television news broadcasting industry and has suffered severe emotional distress.

As to the claim that the defendants broadcast a false statement about the reasons for his termination, there is no evidence that the public statement was false. The statement accurately stated that WXIA-TV had not earlier been aware of the terms of the option agreement and that upon learning of those terms and reviewing the matter, WXIA-TV concluded that it was necessary to terminate Phillips. No other reason was given for the termination. The record supports WXIA-TV’s contention that it was not aware of the terms of the option agreement. At best, the statement, as broadcast, supports Phillips’ contention that it was misleading and failed to publicly acknowledge WXIA-TV’s prior approval of his actions.

There is evidence that the alleged wrongful conduct of the defendants, taken after public criticism arose over Phillips’ actions, added to the emotional distress suffered by Phillips. There is evidence that the defendants lied to Phillips privately about WXIATV’s prior knowledge and approval of his actions and issued an incomplete and misleading public statement about his termination calculated to imply that station management did not at any time prior to Phillips’ public testimony know about or approve of the agreement Phillips made with his sources. The conduct complained of by Phillips amounts to a claim of false accusations by the defendants made in connection with his employment. Generally, “[a] false accusation of dishonesty or lack of integrity in connection with one’s employment conduct is undoubtedly a distressful, even ‘horrifying’ and traumatizing insult, but it is a common vicissitude of ordinary life.” Peoples v. Guthrie, 199 Ga. App. 119, 121 (404 SE2d 442) (1991). We conclude that the defendants’ alleged wrongful conduct in this case did not rise to the requisite level of outrageousness and egregiousness necessary to support a claim for intentional infliction of emotional distress. Peoples, supra. The trial court correctly granted summary judgment in favor of the defendants.

Decided November 21, 1994

Reconsideration denied December 6, 1994

Guy E. Davis, Jr., for appellant.

Powell, Goldstein, Frazer & Murphy, James C. Rawls, Frank Love, Jr., Joseph D. Wargo, for appellees.

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.


text:
    A94A2335.
    GUNTER v. THE STATE.
    (451 SE2d 108)
   Blackburn, Judge.

David Lee Gunter appeals his conviction of child molestation for exposing himself to a minor. Gunter was found not guilty of enticing a child for indecent purposes.

The victim was nine years old at the time of the incident alleged in the indictment. The victim testified that Gunter stopped his small gray hatchback car on the street near where she stood, raised himself up, and put his hand on his exposed genitals.

The evidence of similar transactions involved testimony regarding two incidents in the same neighborhood in which a man in a gray car stopped in the road near little girls and attempted to entice them to come to his car. The similar transactions occurred within a few days of each other and approximately six months prior to the incident alleged in the indictment. In one incident, a man with dark brown hair attempted to give an eleven-year-old girl some money by waving it from his car and asking her if she wanted it. The witness also saw the same car stop near a friend, who ran away from the car screaming. She further identified a picture of the car which Gunter used as the one being driven in her neighborhood from which she obtained the license plate number. The second incident involved a man in a gray four-door car who stopped beside an eleven-year-old girl. The car door was open and the man said, “Come here, little girl, I have something to show you.” Again, the witness identified Gunter’s car as the same car which stopped beside her.

1. In his first enumeration of error, Gunter contends that the trial court erred in allowing the evidence of similar transactions before the jury. Specifically, Gunter argues there was insufficient proof that he committed the similar transactions, and they were not similar to the crime of child molestation.

“ ‘Absolute’ proof is not required that a defendant committed the offense in a similar transaction; and, ‘we have held that the standard of proof of reasonable doubt is not applicable to the proof that the defendant was the perpetrator of the independent crimes, but only to the proof that he or she was the perpetrator of the crimes for which the accused is on trial. (Cits.)’ [Cits.] What is required is that there be evidence that the defendant was the perpetrator of the independent crime [cit.] and sufficient similarity or connection between the independent crime and the offense charged, such that proof of the former tends to prove the latter. [Cit.] Even where the defendant is not identified positively as the perpetrator of the independent crime, circumstantial proof may be used to establish his connection to it. [Cit.]” Martin v. State, 198 Ga. App. 488, 489 (402 SE2d 95) (1991).

In the present case, sufficient circumstantial evidence was presented to connect Gunter to the similar transactions, specifically, the identification of his automobile and the location of these incidents in the same neighborhood. Furthermore, these incidents were similar to those charged in the indictment. See McGarity v. State, 212 Ga. App. 17 (2) (440 SE2d 695) (1994).

2. Gunter asserts the trial court erred by failing to grant his motion for a mistrial. Upon cross-examination of one of the defense witnesses, the witness volunteered twice that Gunter had asked him to testify as a character witness. The prosecutor asked if the witness was at trial to be a character witness. Gunter’s counsel moved for a mistrial stating that Gunter’s character had not been put in evidence.

The prosecutor’s question did not implicate Gunter’s character one way or the other. In any event, the granting of a mistrial is within the sound discretion of the trial court, Tuggle v. State, 211 Ga. App. 854, 855 (440 SE2d 740) (1994), and the trial court did not abuse its discretion in denying Gunter’s motion for a mistrial. See Rollins v. State, 164 Ga. App. 452, 453 (297 SE2d 352) (1982).

Decided November 22, 1994

Reconsideration denied December 6, 1994

Little & Adams, Sam F. Little, for appellant.

Jack O. Partain III, District Attorney, for appellee.

3. In his final enumeration of error, Gunter asserts that the evidence did not support the verdict. However, having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found Gunter guilty beyond a reasonable doubt of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A1441.
    STEWART TITLE GUARANTY COMPANY v. WILLARD.
    (451 SE2d 123)
    Decided December 6, 1994.

      Morris, Manning & Martin, Joseph R. Manning, Laura M. Tate, for appellant.

      Aiken & Ward, Frederic S. Beloin, Bodker, Ramsey & Andrews, Stephen C. Andrews, for appellee.
   McMurray, Presiding Judge.

In Stewart Title Guaranty Co. v. Willard, 211 Ga. App. 357 (439 SE2d 69), we reversed the state court’s grant of summary judgment in favor of defendant Willard and against plaintiff Stewart Title Guaranty Company. The Supreme Court granted certiorari and reversed our decision in Willard v. Stewart Title Guaranty Company, 264 Ga. 555 (448 SE2d 696). Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A94A2187.
    In re SHAFER.
    (451 SE2d 121)
   Blackburn, Judge.

Order of Court.

Appellant, Herbert Shafer, moved this court to disqualify Judge Dorothy T. Beasley from participating in his appeal from the order of the Superior Court of Douglas County, holding him in contempt of court and from participating in any other case wherein he is a party or a lawyer for a party. The motion to recuse was assigned to Judge G. Alan Blackburn, as one not involved in the controversy, by Marion T. Pope, Jr., Chief Judge, Court of Appeals of Georgia.

Movant has filed an affidavit with his motion to recuse and attached thereto, copies of assorted letters covering the period December 6, 1989, through September 17, 1992, which he contends show that Judge Beasley has a “festering” bias towards him.

Movant contends that “[t]here has been an implacable, festering and long-standing enmity between Judge Beasley and [Movant].” Movant contends also, that Judge Beasley’s failure to disclose, on the record, information (the existence of the letters), that he or his lawyer might consider relevant to the question of disqualification, is further evidence of her bias towards him.

The attachments which Movant has submitted in support of his recusal motion consist of three letters to governors of Georgia, giving his thoughts relative to Judge Beasley’s potential appointment to the Georgia Supreme Court, two letters from Judge Beasley to Movant, which thank him for the copies of the governors’ letters which she received, a copy of the Court of Appeals order dismissing as moot Movant’s petition for emergency order, and one letter from Movant to Judge Beasley, advising her that he felt the governor had made an excellent Supreme Court selection.

While the rules of the Georgia Court of Appeals do not specifically provide for a recusal procedure, our Supreme Court has provided guidelines for such in State v. Fleming, 245 Ga. 700 (267 SE2d 207) (1980).

The standard for recusal is stated in Birt v. State, 256 Ga. 483 (350 SE2d 241) (1986). “In order to be disqualifying the alleged bias must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from [his or her] participation in the case. The alleged bias of the judge must be of such a nature and intensity to prevent the defendant from obtaining [an appellate review] uninfluenced by the court’s prejudgment. To warrant disqualification of [an appellate judge] the affidavit supporting the recusal motion must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment. Under Canon 2 of the Georgia Code of Judicial Conduct, a judge must avoid all impropriety and appearance of impropriety. Canon 3.C. (1) provides that “Judges should disqualify themselves in proceedings in which their impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer. It is not necessary that there be shown any actual impropriety on the part of the trial court judge. The fact that his impartiality might reasonably be questioned suffices for his disqualification.” (Citations and punctuation omitted.) Birt v. State, 256 Ga. 483, 485-486, supra.

The material submitted by Movant does not contain a single document or fact which would support any claim of wrongdoing by Judge Beasley or bias on her part towards Movant. While the letters do show a historic enmity on the part of Movant towards Judge Beasley, the record reflects a unilateral condition and contains no indication that Judge Beasley has ever expressed bias or responded to the goading commentary of Movant. Standing alone, the fact that an attorney or party has a bias towards a judge, will not support or authorize the recusal of such judge, absent a biased response by the judge to the bias of said attorney or party. There is nothing in this record which would authorize or require the recusal of Judge Beasley based upon her conduct or bias towards Movant.

The contention of Movant, that Judge Beasley’s failure to place the existence of Movant’s correspondence upon the record, demonstrates her bias towards him, is without merit: There was no requirement that the subject history of Movant’s communications concerning Judge Beasley be placed by her on the record in the contempt appeal. Absent bias on the part of Judge Beasley, or the existence of facts or circumstances of which Movant or his attorney were unaware, from which a reasonable person might infer bias, there was no requirement that such material be placed upon the record. The purpose in placing on the record, any circumstances which might indicate a bias by the judge towards any party or attorney, is to provide notice of such circumstances to said individuals for their edification and possible action. Inasmuch as Movant was the author of the desultory correspondence and the recipient of Judge Beasley’s “thank you” notes, he was fully aware of the history and had no need for notice thereof. Movant’s attorney was also timely aware of the history herein involved as indicated by Movant’s affidavit, executed August 10, 1994, which was submitted with the subject motion.

The remaining issue is whether or not Judge Beasley’s impartiality might reasonably be questioned, absent any wrongdoing on her part, based upon a human response to Movant’s attempt to influence others concerning her qualifications for appointment. Judges are roufinely exposed to bad manners, untruths and insulting behavior, some of it by those who are demented, some by those who are simply boorish by nature, and some of it by those who have a specific purpose or agenda. It is even conceivable that a cunning attorney might attempt to create a record of bias by a judge, based solely upon a negative letter-writing campaign against such judge for the purpose of seeking the recusal of the judge in any matter involving such attorney.

Decided December 6, 1994.

Spruell, Dubuc & Goldberg, Billy L. Spruell, for appellant.

Herbert Shafer, pro se.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Most judges understand that the type of conduct engaged in by one expressing his or her views about the judge for the purpose of influencing others in the decision-making process, is a constitutionally-protected right which they would be the first to defend. There is no basis therefore, to assume that such a campaign would result in a bias by a judge towards a citizen exercising his constitutional rights. Movant’s conduct likewise creates no basis upon which to reasonably question the impartiality of Judge Beasley in the handling of the subject appeal.

“We note also the well-settled rule that it is as much the duty of a judge not to grant the motion to recuse when the motion is legally insufficient as it is to recuse when the motion is meritorious; nor does the simple filing of an affidavit automatically disqualify a judge.” (Citations omitted.) State v. Fleming, 245 Ga. 700, 702, supra.

Movant’s Motion to Recuse Judge Dorothy T. Beasley from the subject case and from any future cases in which Movant is a party or an attorney representing a party, is denied.

It is so ordered.