author: Banke, Presiding Judge. Carley, Judge,

text:
    A91A0337.
    WILLIAMS et al. v. NORRED.
    (408 SE2d 827)
   Banke, Presiding Judge.

The appellants brought suit against the appellee and two other defendants, Karen Van Burén and John Crow, seeking to recover for personal injuries and property damage they had allegedly sustained when an automobile owned by one of them and occupied by the other two collided with a truck owned by the appellee. The case is before us on appeal from the grant of the appellee’s motion for summary judgment.

The appellee had loaned the truck to defendant Crow prior to the accident; and Crow had placed it in the possession of defendant Van Burén, who was employed by him. As Van Burén was driving the vehicle onto an interstate highway access ramp at approximately 6:30 a.m. on October 2, 1987, the right front wheel came off, prompting her to pull to the side of the access ramp and set out on foot for assistance. She testified that the vehicle was protruding into the access lane “a foot or two” and that she left its headlights and parking lights on. She further testified that she did not strike any object or hear any noise before the wheel came off and that she had experienced no previous difficulty in handling the truck. Approximately 10 to 15 minutes after she left the scene, the truck was struck by the appellants’ vehicle. The appellant driver testified that he was looking at the traffic on the expressway while driving down the ramp and was unaware of the presence of the truck until his daughter exclaimed that they were going to hit it, by which time he was too close to it to avoid the collision. He stated that it was his “impression” that the truck was “in the lane.” He further stated that the truck’s lights were not on at the time, and he indicated that the absence of lights or warning devices on the vehicle was a contributing cause of the collision. '

The appellee testified that he serviced the truck himself and that he had performed a safety inspection on the vehicle only the night before the accident occurred. He further testified that he had performed no work on the right front wheel since installing new brakes a year earlier. The appellants submitted an affidavit from an automotive technician to the effect that the wheel would not have come off as it did in the absence of faulty maintenance. Held:

Even assuming arguendo that the wheel came off due to negligent maintenance on the part of the appellee, we hold that such negligence cannot be considered the proximate cause of the collision under the circumstances of this case. “To recover damages in a tort action, a plaintiff must prove that the defendant’s negligence was both the ‘cause in fact’ and the ‘proximate cause’ of the injury. The requirement of proximate cause constitutes a limit on legal liability; it is a ‘policy decision . . . that for a variety of reasons, e.g., intervening act, the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery.’ [Cit.]” Atlanta Obstetrics &c. Group v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990). “Although what amounts to proximate cause is undeniably a jury question, it will be determined by the court as a matter of law in plain and undisputed cases.” McAuley v. Wills, 251 Ga. 3, 7 (303 SE2d 258) (1983).

“The driver of a motor vehicle has no right to assume that the road ahead of him is clear of traffic, and he must maintain a diligent lookout therefor.” Leggett v. Brewton, 104 Ga. App. 580 (3) (122 SE2d 469) (1961). Given the testimony of the driver of the appellants’ vehicle to the effect that he was not watching the road ahead of him but was looking at the traffic on the expressway, combined with the lack of any evidence contradicting the testimony of the defendant driver of the truck to the effect that the vehicle was protruding into the access lane only a foot or two, we conclude that the alleged negligence of the appellee in servicing the truck cannot be considered the proximate cause of the appellants’ injuries; and we consequently hold that the trial court did not err in granting the appellee’s motion for summary judgment.

Judgment affirmed.

Carley, J., concurs specially. Beasley, J., concurs in judgment only.

Decided July 16, 1991.

Thomas F. Choyce, for appellants.

Jenkins & Eells, Frank E. Jenkins III, Sharon C. Barnes, for appellee.

Carley, Judge,

concurring specially.

I agree with the majority that the trial court’s grant of appellee’s motion for summary judgment should be affirmed. However, I do not agree with or join in the reasoning of the majority. The majority focuses on the contributory or comparative negligence of the driver of appellants’ vehicle and upon the fact that the vehicle was “only a foot or two” over into the access lane. I cannot agree that those are issues which should be resolved as a matter of law. However, it is clear to me that, as a matter of law, any negligence of appellee in failing to service the vehicle cannot be the proximate cause of the injury here alleged. Cf. Witt v. Atcheson, 166 Ga. App. 188 (303 SE2d 523) (1983).


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A91A0444.
    ANDERSON v. THE STATE.
    (408 SE2d 829)
   Pope, Judge.

Defendant Scott Allen Anderson appeals from the trial court’s denial of defendant’s Motion in Autrefois Convict and Plea of Former Jeopardy and defendant’s subsequent conviction.

Defendant was arrested on January 17, 1990, after a car chase that involved police officers from both the City of Winterville and the Clarke County Police Departments. The City of Winterville is located within Clarke County. The pursuit began in the City of Winterville by an officer of that police department. The pursuit continued into unincorporated Clarke County, at which point an officer of the Clarke County Police Department joined in the chase. The Clarke County police officer became the only pursuer of the defendant after the City of Winterville police car wrecked during the pursuit.

As a result of this car chase, defendant was issued traffic citations by both police officers. The City of Winterville police officer cited defendant for attempting to elude in violation of OCGA § 40-6-395. The Clarke County police officer cited defendant for state law violations of speeding, driving on the wrong side of the road, reckless driving, attempting to elude and no proof of insurance.

On February 12, 1990, defendant appeared in the Recorder’s Court of the City of Winterville as required by the citation issued by the City of Winterville police officer. In that court, defendant entered a plea of guilty and was fined $500 and ordered to pay $495 in addition as property damage. Defendant did not waive his right to a jury trial before he entered his plea in that court.

On February 21, 1990, defendant was arraigned in the State Court of Clarke County on the charges issued by the Clarke County police officer. On that same day, defendant filed a Motion in Autrefois Convict and Plea of Former Jeopardy. By order entered July 25, 1990, the trial court denied that motion. On October 16, 1990, the trial court conducted a bench trial on the charges against defendant, and defendant was found guilty on all charges.

Defendant alleges that all charges cited by both police departments arose from one continuous course of conduct and, for that reason, subjecting defendant to two prosecutions for that conduct violates defendant’s constitutional and statutory right to be free from double jeopardy. The trial court denied defendant’s motion in autrefois convict and plea of former jeopardy. In the order denying that motion, the trial court found that the Recorder’s Court of the City of Winterville lacked jurisdiction in that case because defendant did not waive his right to a jury trial before that court disposed of the charge against defendant. Recent decisions of this court and the Georgia Supreme Court have held that the subject matter jurisdiction of probate courts and recorder’s courts to hear misdemeanor state law traffic violation cases is not dependent on whether a defendant waives his right to trial by jury. Nicholson v. State, 261 Ga. 197 (403 SE2d 42) (1991); Kolker v. State, 200 Ga. App. 72 (406 SE2d 514) (1991). Therefore, the trial court’s ruling that the Recorder’s Court of Winterville lacked jurisdiction over defendant’s case is erroneous.

Georgia’s statutory bar to successive prosecutions, the procedural aspect of double jeopardy, is codified in OCGA § 16-1-7 (b), which provides that “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except [when the interest of justice dictates that one or more of the charges be tried separately].” First, we must decide if the charges for which defendant was arraigned before the State Court of Clarke County arise from the same conduct as the attempting to elude charge to which defendant plead guilty before the Recorder’s Court of the City of Winterville. Initially, we note that we are without the benefit of a transcript of the proceedings before the trial court when it considered defendant’s plea of former jeopardy or the proceedings in the Recorder’s Court of the City of Winterville. The only facts available to us are those facts contained in the findings of fact section of the trial court’s order denying defendant’s plea of former jeopardy and those obvious from the traffic citations issued to defendant. The facts as found by the trial court establish that a City of Winterville policeman began chasing defendant’s speeding vehicle within the city limits of the City of Winterville and the Clarke County police officer joined in the chase after defendant left the incorporated area and entered unincorporated Clarke County. There was never a break in the pursuit and defendant was only apprehended after a tire on his vehicle deflated. While defendant’s conduct gave rise to several offenses, all of the offenses arose out of one course of conduct, i.e., there was only one transaction. McCrary v. State, 171 Ga. App. 585, 587 (320 SE2d 567) (1984), aff’d 253 Ga. 747 (325 SE2d 151) (1985). See McCannon v. State, 252 Ga. 515, 518, n. 5 (315 SE2d 413) (1984); Harrell v. State, 196 Ga. App. 101, 103 (2) (395 SE2d 598) (1990).

Decided July 16, 1991.

Megan C. De Vorsey, for appellant.

Ken Stula, Solicitor, for appellee.

In determining whether the prosecuting attorney had knowledge of the proceedings in the Recorder’s Court of the City of Winterville, the Georgia Supreme Court in Baker v. State, 257 Ga. 567, 569 (361 SE2d 808) (1987) held that OCGA § 16-1-7 (b) applies “only to such crimes which are actually known to the prosecuting officer actually handling the proceedings.” “Under Baker, the appellant bears the burden of showing that further prosecution is barred by the previous prosecution, including ‘a showing that the proper prosecuting attorney had actual knowledge of all the charges.’ [Cits.]” Zater v. State, 197 Ga. App. 648, 649 (1) (399 SE2d 222) (1990). The record before this court is void of any evidence that the proper prosecuting officer had actual knowledge of all the charges pending against defendant before he plead guilty in the Recorder’s Court of Winterville. Defendant’s argument that the City of Winterville police officer’s knowledge of the Clarke County charges can be imputed to the proper prosecuting attorney has been repeatedly rejected by this court. Zater, supra at 649; Singer v. State, 156 Ga. App. 416 (2) (274 SE2d 612) (1980). Accordingly, the trial court properly denied defendant’s plea of former jeopardy.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Carley, Judge. Banke,

text:
    A91A0560.
    SPRING-U BONDING COMPANY, INC. v. STATE OF GEORGIA.
    (408 SE2d 831)
   Carley, Judge.

The trial court entered an order denying appellant-bonding company’s motion to set aside and vacate a bond forfeiture proceeding. Appellant appeals directly from that order.

No money judgment has yet been entered in the instant case. Accordingly, the first issue for resolution is whether we have jurisdiction. “[E]ven though an order does not specify that it is a grant of final judgment, it nevertheless constitutes a final judgment within the meaning of [OCGA § 5-6-34 (a) (1)] where it leaves no issues remaining to be resolved, constitutes the [trial] court’s final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court. [Cit.]” (Emphasis supplied.) Caswell v. Caswell, 157 Ga. App. 710 (278 SE2d 452) (1981). Assuming that the trial court’s order in the instant case leaves no issues remaining to be resolved, it is nevertheless clear that the instant order cannot and does not constitute the trial court’s final ruling on the merits of the action.

“A surety on a criminal bond or recognizance has the right to insist that his liability should be fixed upon him according to law. [Cit.]” (Emphasis supplied.) Griffin v. State of Ga., 194 Ga. App. 624, 625 (2) (391 SE2d 675) (1990). “In this State criminal bonds or recognizances must be enforced according to the procedure prescribed by statute. . . .” (Emphasis supplied.) Garner v. Chambers, 75 Ga. App. 756 (1) (44 SE2d 507) (1947). Among those statutes which prescribe the applicable procedure in the instant case is OCGA § 17-6-71 (b), which clearly provides: “If at the execution hearing it is determined that judgment should be entered, the judge shall so order.” (Emphasis supplied.) Thus, it is apparent that only the entry of a final judgment would constitute the final ruling on the merits of the instant bond forfeiture action. Clearly, the trial court’s instant order — wherein it purports only to deny appellant’s motion to set aside and vacate the bond forfeiture proceeding — is a preliminary order and not a final judgment. Since it will not be “set aside or vacated,” the proceeding will presumably now continue until such time as a final judgment pursuant to OCGA § 17-6-71 (b) is entered. At that time, but not before, appellant would be entitled to appeal. Accordingly, the instant appeal must be dismissed.

Appeal dismissed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Beasley, Cooper and Andrews, JJ., concur. Banke, P. J., dissents.

Banke,

Presiding Judge, dissenting.

The appellant in this case did not move to set aside or vacate a bond forfeiture “proceeding.” Rather, it moved to set aside a bond forfeiture on the ground that the criminal bond at issue guaranteed the criminal defendant’s appearance in a court other than the one in which the forfeiture had been declared. It is apparent both from the record and from the appellant’s brief in this court that this was the appellant’s entire defense to the appellee’s claim against it. Thus, the denial of the appellant’s motion did not constitute a determination by the court that the proceedings should be allowed to continue; rather, it constituted a determination that the appellee was entitled to judgment against the appellant as the surety on the bond.

Decided July 16, 1991.

Richard L. Moore, for appellant.

Patrick H. Head, Solicitor, for appellee.

While it is true that the no-money judgment has yet been entered against the appellant, the entry of such a judgment at this point would be a purely ministerial exercise, involving no further adjudication of any issues by the trial court. This court has previously held that “even though an order does not specify that it is a grant of final judgment, it nevertheless constitutes a final judgment within the meaning of the statute where it leaves no issues remaining to be resolved, constitutes the court’s final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court. [Cit.]” Caswell v. Caswell, 157 Ga. App. 710 (278 SE2d 452) (1981). See also Herring v. Herring, 143 Ga. App. 286 (1) (238 SE2d 240) (1977).

Believing that the order appealed from falls squarely into this category and that our refusal to address the merits of the appeal at this time will serve no purpose other than to delay the ultimate resolution of the litigation, I respectfully dissent to the dismissal of the appeal.


author: Banke, Presiding Judge.

text:
    A91A0656, A91A0657.
    SMITH et al. v. TICOR TITLE INSURANCE COMPANY OF CALIFORNIA (two cases).
    (408 SE2d 833)
   Banke, Presiding Judge.

On October 22, 1986, the appellants purchased a parcel of improved real property in the City of Roswell, Georgia, known as “4-6 Elizabeth Way,” on which the appellee issued a policy of owners’ title insurance the following day. At the rear of the building located on the property is an alleyway approximately 40 feet wide which is used by the appellants for parking and access to the back of the building. In March of 1990, the City of Roswell notified the appellants that it had maintained the alleyway for approximately 100 years and consequently claimed title to the entire 40-foot strip by prescription or dedication, and that it intended to enforce the right of the public to use the alley for ingress and egress and parking. The appellants advised the appellee insurer of this claim and demanded that it defend their title to the property. The appellee responded by filing a “Complaint for Declaratory Judgment,” alleging that the city’s claim, even if valid, was not covered by the policy. Subsequently, after the appellants had filed an answer and counterclaim, along with motions to add the city as a co-defendant and to add the sellers of the property as third-party defendants, the court, acting sua sponte, issued an order purporting to grant the “plaintiff’s motion for declaratory judgment,” based on a determination that the property interest claimed by the city was excluded from coverage under a policy exception pertaining to easements or claims of easements not of public record. The appellants filed both a notice of appeal, resulting in the docketing of Case No. A91A0656, and a motion for reconsideration. Subsequently, the trial court amended its earlier order to specify that the city’s claim was excluded from coverage under a different policy provision, while stating that the result reached in the original order remained unchanged. The appellants also filed a notice of appeal from this order, and that appeal has been docketed in this court as Case No. A91A0657. Held:

1. The trial court erred in entering a final judgment in the action on its own motion. “[T]he Declaratory Judgment Act [OCGA § 9-4-1 et seq.] is governed by the practice rules contained in the Civil Practice Act. . . .” Town of Thunderbolt v. River Crossing Apts., 189 Ga. App. 607, 609 (2) (377 SE2d 12) (1988). Where a party seeking a declaratory judgment contends that he is entitled to judgment based on the facts or allegations currently of record, he may move for judgment on the pleadings pursuant to OCGA § 9-11-12 (c) or for summary judgment pursuant to OCGA § 9-11-56 (a). Under either procedure, the opposing party would, of course, be entitled to an opportunity to respond. There is no procedure pursuant to which the trial court may simply grant a complaint for declaratory judgment sua sponte, without affording the opposing party notice or an opportunity to be heard. Compare Sands v. Lamar Properties, 159 Ga. App. 718 (285 SE2d 24) (1981) (where a declaratory judgment was entered based on stipulated facts).

2. The appellants also enumerate as error the trial court’s failure to grant their motion to add the City of Roswell as a party defendant, as well as a finding of fact made by the court to the effect that the City of Roswell was in possession of the disputed property. Inasmuch as the trial court has not ruled on the motion to add the city as a defendant, the former contention presents nothing for review; and inasmuch as we are reversing the trial court’s judgment, we find it unnecessary to address the latter contention.

Decided July 16, 1991.

Mark A. Smith III, pro se.

Hey man & Sizemore, William H. Major, William B. Brown, for appellee.

3. The appeal in Case No. A91A0657 is dismissed, both because our ruling in Division 1 of this opinion renders it moot and because the denial of a motion for reconsideration of a final judgment is not, in any event, an appealable ruling. See generally Dougherty County v. Burt, 168 Ga. App. 166, 167 (1) (308 SE2d 395) (1983).

Judgment reversed in Case No. A91A0656. Appeal dismissed in Case No. A91A0657.

Carley and Beasley, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A91A0933, A91A1023.
    SALTER v. CITY OF THOMASTON (two cases).
    (409 SE2d 88)
   McMurray, Presiding Judge.

Appellant was employed by the City of Thomaston. His employment was terminated and he appealed to the City Manager. Following a hearing in which testimony was presented and preserved, the City Manager made findings of fact and conclusions upholding the termination of appellant’s employment. The “decision” of the City Manager, rendered on December 28, 1990, reads: “It is the decision of the City Manager that the termination of the employment of Mr. Salter by Mr. Green is approved, and Mr. Salter’s appeal therefrom is denied.” (Emphasis supplied.)

On January 28, 1991, appellant presented a petition for a writ of certiorari to the superior court. The superior court dismissed the petition, ruling that it was presented out of time.

Appellant sought and we granted a discretionary appeal from the order of dismissal. The discretionary appeal bears Case No. A91A1023. In addition, appellant directly appealed from the order of dismissal. The direct appeal bears Case No. A91A0933. Held:

1. We are without jurisdiction to entertain the direct appeal. See OCGA § 5-6-35 (a) (1). Accordingly, Case No. A91A0933 must be dismissed. See Hogan v. Taylor County Bd. of Education, 157 Ga. App. 680 (278 SE2d 106).

2. The superior court erred in dismissing appellant’s petition for a writ of certiorari. The petition was timely. The last day for filing the petition for a writ of certiorari fell on a Sunday. Thus, appellant had until Monday, January 28, 1991 to file the petition. OCGA § 9-11-6 (a). The superior court erred in ruling otherwise.

Decided July 16, 1991.

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, Eric D. Hearn, for appellant.

Adams, Barfield & Dunaway, David B. Dunaway, for appellee.

Conceding the petition for a writ of certiorari was presented in a timely fashion, the City argues that the trial court did not err in dismissing the petition anyway because the City Manager did not exercise judicial powers in making his decision. We disagree.

In entertaining appellant’s appeal, the City Manager clearly “performed the function of a civil service board. It has been generally held that the rulings of such tribunals are quasi-judicial in nature. [Cits.]” Raughton v. Town of Fort Oglethorpe, 177 Ga. App. 171, 172 (338 SE2d 754). Thus, the city manager’s decision was subject to review by petition for a writ of certiorari. OCGA § 5-4-1 (a); Raughton v. Town of Fort Oglethorpe, supra.

Appeal dismissed in Case No. A91A0933. Judgment reversed in Case No. A91A1023.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A1117.
    BROWN v. THE STATE.
    (408 SE2d 836)
   McMurray, Presiding Judge.

Via indictment, defendant was charged with the offense of aggravated assault by making an assault upon the person of Rawlins Hinton with a gun. Defendant was convicted and, following the denial of his motion for a new trial, he appealed. Held-.

1. The evidence was more than sufficient to enable any rational trier of fact to find defendant guilty of the offense of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Steele v. State, 196 Ga. App. 330 (2) (396 SE2d 4). It was not incumbent upon the prosecution to prove that the victim was aware the defendant was shooting at him. See Sutton v. State, 245 Ga. 192 (1), 193 (264 SE2d 184); OCGA § 16-5-21.

2. The trial court did not err in ruling that defendant’s in-custody statement was made voluntarily. “A trial court’s findings as to factual determinations and credibility relating to the admission of in-custody statements will be upheld on appeal unless clearly erroneous. [Cit.]” Stephens v. State, 170 Ga. App. 342, 343 (317 SE2d 627). The mere fact that defendant did not sign a written statement (a police officer reduced defendant’s statement to writing) is of no consequence. See Stephens v. State, 170 Ga. App. 342, 343, supra; Myrick v. State, 155 Ga. App. 496, 497 (2) (271 SE2d 637) (1980).

Decided July 16, 1991.

John H. Tarpley, for appellant.

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

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A1145.
    WILSON v. POLK MEDICAL CENTER.
    (408 SE2d 834)
   McMurray, Presiding Judge.

Plaintiff Wilson’s complaint alleges that on or about the 15th day of February 1988, she was exiting the emergency room located at the rear of the defendant Polk Medical Center when she fell at an unmarked step-off located at the exit. Further allegations in plaintiff’s complaint state that defendant negligently maintained the premises and was also negligent in failing to post warning signs advising guests of the step-off, and that as a result plaintiff, unaware of said step-off, fell injuring herself. Plaintiff appeals from the grant of summary judgment in favor of defendant. Held:

In her deposition, plaintiff testified that as she was leaving the emergency room “this door knocked me [for] a flip, and that’s when I fell and broke my foot.” Plaintiff also testified that she did not notice anything peculiar about the door and could not tell what it was about the door which caused it to throw her to the ground, but believed simply because she fell that something was wrong with the door.

Plaintiff’s affidavit states that “the [emergency room exit] door snapped back quickly due to a defective spring system in the door catching my foot and causing me to fall to the ground.” The affidavit also contains plaintiff’s statement that immediately after the fall “I observed the spring mechanism on the emergency room exit door and noticed that the door will begin to close as normal and will suddenly and without warning rapidly close due to a defective spring system.”

Insofar as plaintiff’s complaint states a claim for damages arising from a step-off and plaintiff’s evidence shows that her injuries arose from her difficulty with a door, plaintiff has apparently succeeded in piercing her own pleadings for the benefit of defendant. As no claim is stated in plaintiff’s complaint for the injury actually received by plaintiff and the sole claim predicated on a step-off has been negated, defendant may be entitled to summary judgment on this basis alone. Yorgin v. Adler, 193 Ga. App. 24, 25-26 (387 SE2d 14).

Decided July 16, 1991.

Jack F. Witcher, for appellant.

Shaw, Maddox, Graham, Monk & Boling, Jule W. Peek, Jr., for appellee.

Nonetheless, we prefer to reach the merits of the case sub judice and therefore predicate our decision on the same theory as stated by the superior court, that the self-contradictory statements made by plaintiff require that we consider the statements more unfavorable to her in reaching our decision. Tri-Cities Hosp. Auth. v. Sheats, 247 Ga. 713, 714 (279 SE2d 210). In her deposition, plaintiff could state nothing concerning a defect in the door while in her affidavit she professed to have noticed a defective spring in the door. Under Tri-Cities we must conclude that plaintiff’s evidence failed to present any material issue of fact concerning a defect in the emergency room door. Since defendant’s evidence shows that the doors to the emergency room were functioning properly and is not contradicted by plaintiff’s evidence as we view it under Tri-Cities, we find that no genuine issue of material fact remains for a jury. Proof of nothing more than the occurrence of plaintiff’s fall is insufficient to establish defendant’s negligence. Gross v. Frank’s Warehouse Foods, 192 Ga. App. 539 (385 SE2d 688).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A1198.
    LEATH v. THE STATE.
    (408 SE2d 835)
   McMurray, Presiding Judge.

On February 14, 1991, defendant was convicted of possession of cocaine with intent to distribute and sentenced to serve five years in confinement. She moved for bond pending appeal, asserting she was expecting her second child within two months. On March 25, 1991, the trial court ordered the release of defendant upon the making of a $5,000 security bond and contingent upon defendant’s return to jail on June 1, 1991. Defendant appeals, contending the trial court erred in denying her motion for bond pending appeal. Held:

“In determining whether to grant an appeal bond the trial judge is not required to make findings of fact. Instead, he must set forth the basis of his decision predicated on the four questions posed by Birge [v. State, 238 Ga. 88 (230 SE2d 895)]. Moore v. State, 151 Ga. App. 413, 414 (260 SE2d 350).” McCormick v. State, 161 Ga. App. 573 (289 SE2d 23). Insofar as the trial court’s order can be construed as a denial of defendant’s motion for an appeal bond after June 1, 1991, it is insufficient because it fails to set forth the basis of the trial court’s decision in accordance with the standards set forth in Birge v. State, 238 Ga. 88 (230 SE2d 895). Accordingly, we remand this case to the trial court for a further evidentiary hearing, if necessary, and the entry of an order setting forth the basis of the trial court’s decision. See Foster v. State, 165 Ga. App. 137, 138 (299 SE2d 420).

Decided July 16, 1991.

Murray M. Silver, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Nancy A. Grace, Rebecca A. Keel, Assistant District Attorneys, for appellee.

Judgment vacated and case remanded with direction.

Sognier, C. J., and Andrews, J., concur.


author: Carley, Judge.

text:
    A91A0024.
    DRURY et al. v. VPS CASE MANAGEMENT SERVICES, INC.
    (408 SE2d 809)
   Carley, Judge.

The facts, insofar as they are relevant to the resolution of this appeal, are as follows: Appellant-plaintiff was injured in an on-the-job accident. As the result of this accident, he began to receive workers’ compensation benefits, including vocational rehabilitation services provided by appellee-defendant. Alleging appellee’s negligent performance of these services, appellant and his wife filed the instant tort action. After discovery, appellee moved for summary judgment based upon the exclusive remedy provisions of OCGA § 34-9-11. The trial court granted summary judgment in favor of appellee and it is from that order that appellant and his wife bring this appeal.

The legislative intent of OCGA § 34-9-11 is clear. “This provision has been interpreted consistently to mean that, where the workers’ compensation law is applicable, it provides the employee’s exclusive remedy against his employer. [Cits.]” Freeman v. Ryder Truck Lines, 244 Ga. 80, 82 (2) (259 SE2d 36) (1979). Thus, an employee who is eligible for workers’ compensation benefits may not otherwise recover as against his employer or his employer’s alter ego for his compensable on-the-job accident, but is limited to his workers’ compensation remedy. Hinkley v. Bldg. Material Merchants &c., 187 Ga. App. 345 (370 SE2d 201) (1988) (administrator of the self-insured employer’s workers’ compensation program who had contracted to assume the employer’s duty to conduct safety inspections of the work premises is, as to that duty, the employer’s alter ego and cannot be sued under the theory that the injured employee’s compensable on-the-job accident was attributable to an allegedly negligent breach of the assumed duty to inspect); Fred S. James & Co. of Ga. v. King, 160 Ga. App. 697 (288 SE2d 52) (1981) (administrator of the self-insured employer’s workers’ compensation program who had contracted to assume the employer’s duty to conduct safety inspections of the work premises is immune from suit based upon allegations that his assumed duty was negligently breached); Newton v. Liberty Mut. Ins. Co., 148 Ga. App. 694 (1) (252 SE2d 199) (1979) (workers’ compensation insurer immune from suit as to alleged negligent breach of the assumed duty to conduct safety inspections); Chambers v. Gibson, 145 Ga. App. 27 (243 SE2d 309) (1978) (executive of corporate-employer is, as to acts performed in his representative capacity, the alter ego thereof and immune from suit based upon allegations that such acts were negligently performed); Vaughn v. Jernigan, 144 Ga. App. 745 (242 SE2d 482) (1978) (executive of corporate-employer is immune from suit for allegedly negligent performance of acts undertaken in his representative capacity); Cunningham u. Heard, 134 Ga. App. 276 (214 SE2d 190) (1975) (president of employer immune from suit for allegedly negligent performance of his representative acts); Yancey v. Green, 129 Ga. App. 705 (201 SE2d 162) (1973) (individual members of county board of education immune from suit for allegedly negligent performance of acts within their official capacities); Mull v. Aetna Cas. &c. Co., 120 Ga. App. 791 (172 SE2d 147) (1969) (workers’ compensation carrier, having assumed the employer’s duty to conduct safety inspections, is immune from suit for allegedly negligent performance of that assumed duty).

However, entirely unlike the above cited cases, appellant does not seek a recovery based upon allegations that his original compensable on-the-job accident was caused by appellee’s breach of any duty performed in its capacity as an alter ego of the employer. Appellant does allege that, subsequent to his original compensable on-the-job accident, appellee negligently breached a separate duty of care that it owed to appellant in its capacity as the provider of vocational rehabilitation services. Thus, appellant has alleged appellee’s commission of a succeeding and distinct act of professional negligence. OCGA § 34-9-11 does not render one who is negligent in the subsequent provision of services to a previously injured workers’ compensation claimant immune from liability therefor. Appellee’s “liability arises from the [professional-client] relationship with [appellant], and not from an employer-employee relationship. The [professional] attending the injured employee is not a party to the compensation case or settlement. Nothing in the [Workers’] Compensation Act places an attending [professional] in a class with the employer.” Gay v. Greene, 91 Ga. App. 78, 81 (2) (84 SE2d 847) (1954). “The Workers’ Compensation laws were not intended to be a grant of immunity from professional malpractice actions.” Davis v. Stover, 258 Ga. 156, 157 (366 SE2d 670) (1988), aff’g 184 Ga. App. 560 (362 SE2d 97) (1987) (discussing immunity of a fellow servant rather than an employer and holding that immunity does not extend to a company doctor as a professional fellow servant). It follows, therefore, that the trial court erred in granting summary judgment in favor of appellee.

Decided July 2, 1991

Reconsideration denied July 17, 1991

Jeffrey R. Berry, for appellants.

Gorby, Reeves, Moraitakis & Whiteman, Eve A. Appelbaum, Andrew Nelson, for appellee.

Miles L. Gammage, amicus curiae.

The issue of whether appellee actually committed malpractice has yet to be addressed in the trial court, appellee’s motion having been predicated upon its purported statutory immunity from suit for its alleged malpractice. Accordingly, all we hold is that OCGA § 34-9-11 is not a legal bar to the pursuit of a malpractice claim against a professional who has subsequently provided his services to a previously injured workers’ compensation claimant. Whether appellee actually committed malpractice and, if so, whether appellant can otherwise recover damages as a result thereof have yet to be established.

Judgment reversed.

Banke, P. J., concurs. Beasley, J., concurs in the judgment only.


author: Beasley, Judge.

text:
    A91A0150.
    MAY v. MACIOCE et al.
    (409 SE2d 45)
   Beasley, Judge.

This case involves competing claims to a Mercedes automobile. Appellant May had an unperfected, i.e., unrecorded, security interest in the car, but he allowed Eller’s wife, who owned the vehicle, to retain possession. The car was levied upon in order to satisfy a judgment obtained against Eller by appellees Higginson and Balkcum, who purchased the car at the judicial sale and in turn sold it to appellee Macioce. May ascertained the whereabouts of the car and seized it from Macioce, who instituted this action against May for conversion of the car, as well as Higginson and Balkcum for misrepresentation (as to their ownership of the car).

The trial court entered summary judgment in favor of Macioce against May on the issue of liability. Since there was evidence that Macioce had not acquired any title in the car, because the defendant in execution (Eller) was without title, and since May’s unperfected security interest is superior to no interest at all, this Court reversed the grant of summary judgment to Macioce, holding that there was “at least an issue of fact over whether Macioce acquired any title in the vehicle. . . .” May v. Macioce, 191 Ga. App. 491, 493 (382 SE2d 198) (1989).

On remand, Macioce amended his complaint to allege that he has a protected interest because under the UCC an innocent purchaser for value (Higginson and Balkcum, who sold to Macioce) has priority over an unperfected security interest (May’s). His theory was that May’s failure to perfect his security interest, while allowing Eller to remain in possession of the car, resulted in the car’s being levied upon as though it belonged to Eller, ultimately to be transferred to an innocent purchaser for value (Macioce) pursuant to the judicial sale. Although returning a verdict in favor of Higginson and Balkcum, the jury also returned a verdict against May on Macioce’s complaint, awarding Macioce compensatory and punitive damages.

May enumerates as error the trial court’s denial of his motions for directed verdict, j.n.o.v., and new trial. He argues that the evidence demanded a verdict in his favor. May also enumerates as error the trial court’s refusal to allow him to call Higginson’s and Balkcum’s attorney as a defense witness.

1. Under the Uniform Commercial Code, OCGA § 11-9-302 (3), and the Motor Vehicle Certificate of Title Act, OCGA §§ 40-3-20; 40-3-50; 40-3-51, the rights of the holder of an unperfected security interest in an automobile are subordinate to the rights of an innocent third party who acquires the automobile for value. General Fin. Corp. u. Hester, 141 Ga. App. 28 (232 SE2d 375) (1977).

In the present record, there are material issues of fact as to whether Macioce was such an innocent third party. The jury was authorized in finding that he was. It is true that his claim to the car as a purchaser at a judicial sale is ultimately unavailing. A purchaser at a judicial sale does not acquire title unless the defendant in execution has good title, Johnson v. Equitable Securities Co., 114 Ga. 604, 607 (40 SE 787) (1901), which Eller did not. However, this does not negate his superior rights as against the unperfected secured party under the UCC. Cf. Hudson v. Gaines, 199 Ga. App. 70 (403 SE2d 852) (1991) (holding that notwithstanding disclaimers of title in a state-issued certificate of title executed by the seller of an automobile to a purchaser, under the UCC the buyer may still have an express or implied warranty of title by reason of the agreement or conduct of the parties). Macioce’s rights under the UCC, adjudicated in this proceeding, would entitle him to issuance of a certificate of title upon proper documentation. OCGA § 40-3-21. The jury was authorized in returning its verdict in favor of Macioce under this theory of recovery.

Decided June 19, 1991

Reconsideration denied July 17, 1991

Maria S. Georgeton, for appellant.

Bush, Wallace & Craig, Chuck R. Pardue, Daniel J. Craig, for appellees.

2. May argues that since the evidence continues to show that he had an unperfected security interest in the Mercedes and that Macioce acquired no title through the judicial sale, the “law of the case” rule compels reversal of the judgment, and for this reason the trial court erred in not granting his motions for directed verdict and j.n.o.v.

Appellate court holdings as to pleadings and evidence are not binding as the law of the .case, where the evidentiary posture of the case in the trial court changes subsequent to the appellate court decision. Modern Roofing & Metal Works v. Owen, 174 Ga. App. 875, 876 (1) (332 SE2d 14) (1985). Macioce amended his complaint, and this led to a change in the evidentiary posture.

3. In refusing to allow May to call Higginson’s and Balkcum’s attorney as a witness, the trial court ruled, “[u]nder the facts of this case . . . given the stage of the proceedings we’re at, the difficulties involved and the other ramifications involved, I’m going to exercise the discretion I feel I have and not allow the calling of counsel as a witness.”

Appellees point out that appellant was aware of counsel’s role in the sale of the car and failed to give notice of his desire to call him as a witness until the trial had almost concluded. Appellant cites no authority in support of the contention that the court abused its discretion or had none in the matter tardily raised. Accordingly, this enumeration is without merit. See Code of Professional Responsibility, Canon 5, DR 5-102 and EC 5-9; Timberlake v. State, 246 Ga. 488, 500 (7) (271 SE2d 792) (1980); Castell v. Kemp, 254 Ga. 556 (331 SE2d 528) (1985).

The remaining arguments of appellees as to why the judgment should be affirmed are moot.

Judgment affirmed.

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


text:
    A91A0300.
    IVEY et al. v. GOLDEN KEY REALTY, INC. et al.
    (408 SE2d 811)
   Carley, Judge.

The relevant facts in the instant appeal are as follows: Appellant-plaintiffs entered into a contingency contract to sell certain real property. As to this contract, appellee-defendant Century 21 Realty Center, Inc. was the listing broker and appellee-defendant Golden Key Realty, Inc. was the selling broker. When the sale failed to close, appellants brought suit not only against the prospective purchasers, but also against appellees. As against appellees, it was alleged that they had “negligently breached their fiduciary obligation by deliberately ignoring their primary obligation to sell [appellants’] residence . . . .” After discovery, appellees moved for partial summary judgment as to their liability for punitive damages, “special expenses,” and attorney’s fees and expenses of litigation. The trial court granted partial summary judgment in favor of appellees and appellants appeal.

1. When construed most favorably for appellants, the evidence of record demonstrates that appellees did not intentionally and wilfully induce the prospective purchasers to breach their contract to purchase appellants’ real property. The most that the evidence shows is that, acting in the erroneous belief that the contingencies would not be met, appellees misinformed the prospective purchasers that they were “out of the contract” and prematurely returned the prospective purchasers’ $1,000 earnest money to them. This evidence shows, at most, that, in their capacities as appellants’ agents, áppellees were negligent in their interpretation of the prospective purchasers’ contractual liability to appellants and that, as a result, appellees negligently released the earnest money to the prospective purchasers prematurely.

“[A]n agent ... is responsible for negligence to his principal . . . . [Cits.]” Cabral v. White, 181 Ga. App. 816, 818 (2) (354 SE2d 162) (1987). “The evidence . . . was sufficient to create an issue for jury determination concerning whether [appellees were] negligent in representing [appellants] in the sales transaction.” Welch v. Holley, 191 Ga. App. 532, 533 (1) (382 SE2d 128) (1989). However, “[n]egligence, even gross negligence, is inadequate to support a punitive damage award. [Cit.]” Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (3b) (365 SE2d 827) (1988). Under OCGA § 51-12-5.1 (b), which is applicable in the instant case, it remains the rule that “ ‘ “ [something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. . . . There is general agreement that, because it lacks this element, mere negligence is not enough. . . .” (Cit.)’ [Cit.]” Gaither v. Barclaysamerican/Financial of Ga., 194 Ga. App. 188-189 (390 SE2d 97) (1990).

Decided July 2, 1991

Reconsideration denied July 17, 1991

Lawrence O. Guillory, Joel A. Willis, Jr., for appellants.

Herbert L. Wells, Martin, Snow, Grant & Napier, Robert R. Gunn II, Michael M. Smith, Cowart & Varner, Roy N. Cowart, Keith H. Salmon, for appellees.

Since the evidence of record, when construed most favorably for appellants, demonstrates, that the acts attributed to appellees were, at most, negligent breaches of the duties owed as agents, the trial court correctly granted partial summary judgment as to appellees’ non-liability for punitive damages.

2. The trial court did not indicate the basis for its grant of partial summary judgment in favor of appellees as to the issue of the recover-ability of “special expenses.” However, in the trial court and on appeal, appellees have relied exclusively upon the holdings in Quigley v. Jones, 255 Ga. 33 (334 SE2d 664) (1985) and Denny v. Nutt, 189 Ga. App. 387, 388 (1) (375 SE2d 878) (1988).

Quigley and Denny state the applicable measure of damages in a breach of contract action between the seller and the purchaser. However, the instant action is not such an action. It is a tort action brought by a principal against his allegedly negligent agents. See Ellis v. Taylor, 172 Ga. 830 (159 SE 266) (1931). OCGA § 51-12-7 provides that, in tort actions, the “necessary expenses consequent upon an injury are a legitimate item in the estimate of damages.”

Since the grant of partial summary judgment was presumably based upon Quigley and Denny, the issue of whether the “special expenses” sought by appellants would be recoverable in a tort action has never been addressed in the trial court. Accordingly, we do not hold that appellants are entitled to recover “special expenses,” but only reverse the ruling that such a recovery in the instant case is necessarily precluded by Quigley and Denny.

3. The trial court correctly granted partial summary judgment in favor of appellees as to attorney’s fees and expenses of litigation. The uncontroverted evidence of record shows the absence of bad faith on the part of appellees and the existence of a bona fide controversy as to appellees’ liability and the amount of damages, if any, recoverable by appellants.

Judgment affirmed in part and reversed in part.

Banke, P. J., concurs. Beasley, J., concurs in Divisions 1 and 3 and in the judgment.


text:
    A91A0418.
    PAGE v. JANKO et al. HCA HEALTH SERVICES OF GEORGIA, INC. v. PAGE.
    A91A0419.
    (409 SE2d 48)
   Pope, Judge.

Plaintiff Fiona Graham Page filed this medical malpractice action against defendants HCA Health Services of Georgia, Inc., (HCA of Georgia) Medi-Tech, Inc. and Dr. Gary S. Janko. Plaintiff settled her claims against Medi-Tech, Inc. and the case proceeded to trial against HCA of Georgia and Dr. Janko (hereinafter “defendants”). The jury returned a verdict for both defendants and the trial court entered judgment on the verdict of January 30, 1990. Plaintiff appeals from the denial of her motion and amended motion for new trial. We affirm.

1. In her sole enumeration of error plaintiff contends that the trial court erred in refusing to excuse for cause Juror Dana Kull which action, according to plaintiff, forced her to use one of her peremptory strikes against the juror. Specifically, plaintiff argues that Juror Kull should have been excused for cause because of her “potential, indirect pecuniary interest in the outcome of the case” arising out of her employment as an associate attorney with a large (approximately 100 attorney) law firm who had represented Hospital Corporation of America (HCA), the parent corporation of defendant HCA of Georgia, on an unrelated matter. Although such a relationship might warrant disqualification of the juror under certain circumstances, we do not believe that the trial court erred in refusing to grant plaintiff’s challenge for cause in the case at bar.

HCA was not a party to this litigation; nor did the plaintiff seek to have the jury qualified as to HCA. Although Juror Kull initially did not respond to plaintiff’s question on voir dire concerning whether any of the jurors had “worked for . . . [HCA] or any of its affiliates,” when she returned to court the following morning she volunteered that, after leaving court the previous day, she remembered that her employer had represented HCA in connection with certain tax matters. In response to questioning by the parties, Kull responded that she was not personally involved with the representation of HCA and that to her knowledge the firm’s representation of HCA was limited to matters outside her field of expertise. The juror further stated that she “might never have known that our firm represented [HCA] had [she] not attended a corporate tax seminar in which some fairly complicated transaction that HCA was contemplating doing was used as the example.” Kull also stated that the seminar at which HCA was mentioned was held “a couple of months ago.”

Decided June 24, 1991

Reconsideration denied July 17, 1991

Davis, Gregory & Christy, Hardy Gregory, Jr., The Malone Firm, Thomas W. Malone, James M. LaChance, for Page.

Cohen, Pollock, Cooper & Comolli, Lawrence A. Cooper, for Janko.

“A challenge to the poll or a motion to disqualify jurors must be supported by evidence if the presumption of their qualification and impartiality is to be rebutted. [Cit.]” Hiatt v. State, 132 Ga. App. 289, 291 (2) (208 SE2d 163) (1974). Although the parties were allowed to question Kull concerning her employer’s representation of HCA, plaintiff failed to ascertain if the representation was ongoing, or that the juror anticipated her employer representing HCA with regard to any other matter in the future. The plaintiff even failed to demonstrate that Kull’s law firm was representing HCA at the time of trial. Cf. Daniel v. Bi-Lo, Inc., 178 Ga. App. 849 (1) (344 SE2d 707) (1986) (in which the juror, an independent insurance adjuster, stated that at the time of trial he had “open files” for one of the companies insuring a party in the case). All we know from the record before us is that the juror’s employer had, at some point, represented HCA with regard to a certain tax matter, and that the juror stated that her firm’s representation of HCA would not influence her ability to sit as a fair and impartial juror.

“This is not a case wherein the prospective [juror was an employee] of appellant or any other party to the case. [Cits.]” Willingham v. State, 198 Ga. App. 178, 179 (2) (401 SE2d 63) (1990). “ ‘The trial judge has a discretion in determining whether a juror can decide the case in accordance with the evidence presented during the trial and without bias or partiality or outside influences. Unless there is manifest abuse we cannot require a new trial. (Cit.)’ Hill v. Hosp. Auth., 137 Ga. App. 633, 636 I. (1) (b) (224 SE2d 739) (1976). We find no such abuse here.” Poulnott v. Surgical Assoc. of Warner Robins, P. C., 179 Ga. App. 138, 139 (1) (345 SE2d 639) (1986). Consequently, this enumeration is without merit. Accord Decubas v. Norfolk Southern Corp., 197 Ga. App. 768, 789 (399 SE2d 512) (1990); Taylor v. State, 164 Ga. App. 660 (1) (297 SE2d 755) (1982); Southern R. Co. v. Allen, 88 Ga. App. 435 (3) (77 SE2d 277) (1953); Lewis v. Williams, 78 Ga. App. 494 (2) (51 SE2d 532) (1949).

2. Because of our holding in Division 1, supra, we need not address those matters raised as error by defendant HCA of Georgia in its cross-appeal (Case No. A91A0419).

Judgment affirmed.

Birdsong, P. J., and Cooper, J. concur.

Alston & Bird, Judson Graves, Paul J. Quiner, for HCA.

       The record shows that plaintiff used all her peremptory strikes in the selection of the jury.


author: Carley, Judge

text:
    A91A0447.
    KING COTTON, LTD. v. POWERS et al.
    (409 SE2d 67)
   Carley, Judge

This is the second appearance of the instant tort action before this court. In King Cotton, Ltd. v. Powers, 190 Ga. App. 845 (380 SE2d 481) (1989), we reversed the judgment that had been entered on a jury verdict in favor of appellee-plaintiffs. A new trial was held and a jury verdict was again returned in favor of appellees. Appellant-defendant appeals from the judgment that was entered by the trial court on this jury verdict.

1. Any issue that was raised and resolved in the earlier appeal is the law of the case and, notwithstanding appellant’s request for reconsideration, is binding. Redmond v. Blau, 153 Ga. App. 395 (265 SE2d 329) (1980).

2. Prior to the return of the verdict in the first trial, appellees agreed to a collective settlement with all defendants in the case except appellant. This collective settlement was for the lump sum amount of $750,000 and was not otherwise allocated as between the respective claims of the various appellees. After the return of the verdict in the first trial, but prior to the entry of any judgment thereon, an order of the probate court was obtained which purported to allocate specified amounts of the $750,000 to the minor appellees. This order of the probate court was not considered by the trial court in molding the original judgment and was not, therefore, considered in King Cotton, Ltd. v. Powers, supra. However, in molding the instant judgment, the trial court did rely, over appellant’s objection, on the probate court’s allocation order. Appellant enumerates this reliance by the trial court as error.

Appellant was neither a party to the proceedings in the probate court (compare Taylor v. Bennett, 260 Ga. 20 (389 SE2d 242) (1990)), nor does it seek merely to attack collaterally the probate court’s appointment of a guardian for the minor appellees. Compare Bennett v. Bennett, 194 Ga. App. 197 (390 SE2d 276) (1990). Instead, appellant ultimately questions the jurisdiction of the probate court to make a binding determination as to the settlement reached on behalf of the minor appellees. “The judgment of a court having no jurisdiction of the person or the subject matter or which is void for any other cause is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.” OCGA § 9-12-16.

A probate court clearly has jurisdiction to appoint a guardian for a minor. OCGA § 15-9-30 (a) (5). However, a guardian, once appointed, need not obtain the approval of the probate court to settle a contested or doubtful claim for or against the minor. OCGA § 29-2-16; Macris v. Laughlin Insulation Co., 124 Ga. App. 573, 574 (1) (185 SE2d 413) (1971). Compare OCGA § 29-2-18. Accordingly, any settlement of the tort claims of the minor appellees to which their duly appointed guardian agreed would not have to be approved by the probate court. However, the approval of the trial court would be necessary here because the settlement was reached after litigation of the minor appellees’ claims had commenced. “[Ojnce a suit is in progress even a guardian ad litem or next friend . . . may not compromise or settle the child’s claim without the approval of the [trial] court. [Cit.]” Lynn v. Wagstaff Motor Co., 126 Ga. App. 516, 518 (191 SE2d 324) (1972). Since it was not the probate court but the trial court wherein the suit was pending that had jurisdiction to address the settlement of the minor appellees’ claims, it follows that, in molding the instant judgment, the trial court erred in relying upon the probate court’s void order. “ ‘A guardian ad litem or next friend has no authority to compromise or settle a suit except by leave of the [trial] court. . . .’ [Cits.]” Betts v. Hancock, 27 Ga. App. 63, 65 (d) (107 SE 377) (1921). The judgment in the instant case should have been molded so as to conform to the settlement agreement without regard to the probate court’s void order purporting to allocate a portion of the settlement amount.

Whether approving a minor’s settlement of a pending suit in specific or considering the enforceability of any settlement agreement in general, a trial court is obviously limited to those terms upon which the parties themselves have mutually agreed. Absent such mutual agreement, there is no enforceable contract as between the parties. Mangum v. Mills, 108 Ga. App. 535 (133 SE2d 429) (1963); Manget v. Carlton, 34 Ga. App. 556 (3) (130 SE 604) (1925). “It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties.” (Emphasis supplied.) Carr v. L. & N. R. Co., 141 Ga. 219, 222 (80 SE 716) (1914). The only settlement agreement in the instant case upon which there was any purported mutual agreement was that whereby all appellees agreed to settle'as against all defendants other than appellant for the unallocated lump sum of $750,000. Any further agreement as between appellees themselves concerning their allocation of the $750,000 as among themselves may have been tangential to the agreement that had been reached with the settling defendants. However, such an allocation among the appellees, not having been a term which was agreed to by the settling defendants, would not be an element of the settlement agreement itself.

In King Cotton, Ltd. v. Powers, supra at 849 (2), we held: “Upon retrial, either the settlement amount may be disclosed to the jury and the jury instructed to consider that amount in awarding its verdict against [appellant], or the amount of the settlement must be withheld from the jury and the jury instructed to disregard any dismissals from the action and anything they may have heard regarding settlement and return a verdict for the total amount due each plaintiff as a result of the accident. If the latter option is elected, the court would then, of course, set off the amount of the settlement allocated to each plaintiff from the jury’s award. [Cit.]” (Emphasis supplied.) Upon retrial, it was “the latter option” which was followed. Accordingly, in molding the instant judgment, the trial court was required to “set off the amount of the settlement allocated to each [appellee] from the jury’s award.” As discussed above, the settlement agreement did not allocate any specific portions of the $750,000 to the appellees individually, but provided for an unallocated lump sum payment of $750,000 in collective settlement of all of appellees’ respective claims. Therefore, in molding the instant judgment, the trial court would be required to set off the entire unallocated settlement payment- of $750,000 against the total amount of the verdicts returned for all appellees.

This would be necessary because of appellees’ own election to aggregate their individual claims and to enter into a collective unallocated lump sum settlement with the other defendants. Each appellee was entitled to but one full satisfaction of his injury and, in pro tanto satisfaction thereof, appellant was entitled to the full benefit of the $750,000 paid by the other defendants. Ford Motor Co. v. Lee, 237 Ga. 554, 556 (2) (229 SE2d 379) (1976). To insure this result, it would obviously be necessary that appellees’ own treatment of their claims be consistent. Having aggregated their individual claims and entered into a collective unallocated lump sum settlement with the other defendants, appellees would not be entitled thereafter to resegregate their claims and manipulate their allocation of the settlement amount among themselves so as to secure more than one full satisfaction and to deny appellant the full benefit of the $750,000 as a set off. “[I]n a tort action, compensation, and not enrichment, is the basis for the award of damages.” Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36, 58 (2) (60 SE2d 770) (1950). “The plaintiffs in the case must stand upon the contract as made by the parties.” Carr v. L. & N. R. Co., supra at 222. The settlement contract “as made by the parties” and upon which appellees “must stand” was for an unallocated lump sum payment in collective settlement of all of appellees’ respective claims. Consistent with that contract, appellees would be required to aggregate the total amounts of their individual verdicts obtained against appellant, then set off therefrom the entire $750,000 unallocated settlement payment and, if, after doing so, there was any lump sum monetary recovery against appellant, resolve as between themselves the issue of the allocation of that lump sum recovery.

Decided July 3, 1991

Reconsideration denied July 17, 1991

Langley & Lee, C. Richard Langley, for appellant.

Cannon & Meyer Von Bremen, William E. Cannon, Jr., for appellees.

3. Remaining enumerations of error have been considered and are without merit.

4. The judgment is affirmed with direction that the trial court is to remold the judgment consistent with our holding in Division 2 of this opinion.

Judgment affirmed with direction.

Banke, P. J., and Beasley, J., concur.


text:
    A91A0579.
    BRINSON v. FIRST AMERICAN BANK OF GEORGIA et al.
    (409 SE2d 50)
   Beasley, Judge.

Brinson sued the First American Bank of Georgia and Crowe & Mann, the law firm representing the bank, in a collection action and two garnishments thereon. He appeals from the grant of summary judgment to defendants and “dismissal” of his complaint (which we take instead as an award of final judgment to defendants) and from the denial of his motion for partial summary judgment. His complaint alleged that the judgment and garnishments were against the wrong person, constituting trespass and interference with his property, conversion of his money, wrongful levy, and a violation by the law firm of the Fair Debt Collection Practices Act, 15 USCA § 1692. He sought recovery of $274.24 withheld by the law firm for garnishment expenses, unspecified amount for loss of use of garnished funds, $1,500 for attorney fees to have the garnishments lifted and for representation in personal bankruptcy, punitive damages to deter defendants and compensate him for wounded feelings (or alternatively for injury to his peace, happiness, and feelings), statutory damages and attorney fees under 15 USC § 1692k, and emotional damages. The complaint was amended in effect, prior to the hearing on the motions, with respect to the $274.24; he no longer sought its recovery but rather alleged trespass by the law firm for retaining that amount for “over 35 days” after the judgment supporting the garnishments had been set aside.

The Visa account which was the subject of the underlying suit by the bank was opened by Billy E. Brinson in May of 1985. The account application showed Brinson residing at 375 Dartmouth Drive in the City of Atlanta. Brinson testified that although he used to live at that address, he did not live there at the time the events in this case took place. Nonetheless, he paid utility bills for this address, and the employer listed on the credit card application was General Motors, who is appellant’s employer.

In May of 1987, the bank filed suit against Brinson in state court. No answer was filed, a default judgment was taken, and a fi. fa. was entered on the court’s general execution docket.

The following month, Mann, as attorney for the bank, filed a garnishment action naming General Motors as the garnishee. At that point, Brinson telephoned Mann and left a message that he did not have a Visa account with the bank. Brinson filed a traverse to the garnishment. He did not file a motion to set aside the underlying judgment, the validity of which could not be contested in the garnishment proceeding. Between October of 1987 and April of 1988, the garnishee made payments totalling $1,288.99.

In March of 1988, a second garnishment action was filed by Mann on behalf of the bank. Brinson subsequently filed a motion to set aside the state court judgment, which was granted in July of 1988. Both Mann and the state court judge informed the clerk of state court that the judgment lien was to be expunged and the garnishment released. In August of 1988, Mann sent Brinson’s attorney $771.59, and $1,490.37 was sent to counsel by the court clerk. Brinson later filed a bankruptcy petition listing 21 credit cards, which included Visa cards from various banks other than the bank in this case.

Brinson subsequently filed a pro se action against the bank in magistrate court, complaining that he had not been fully reimbursed for the funds collected in the garnishment proceedings and that the bank was liable to him in the amount of $1,056.04 principal and $102.80 interest. In its answer, the bank stated that all of the garnishment funds in the court registry and in the possession of counsel for the bank had been remitted to Brinson and his attorney. No later than October of 1988, Brinson met with Mann and told him that he had not received all of the money in the court registry. Mann made a telephone call to the clerk and ascertained that the clerk had inadvertently failed to release to Brinson $510.99 collected in the second garnishment proceeding. These funds were returned to Brinson by the court clerk in December of 1988.

After a hearing, the magistrate court entered an order stating that Brinson’s complaint was “dismissed with/without prejudice (by reason of) ‘Pf has been paid all money from garnishment.’ ” Mann testified that Brinson told him that in his magistrate court action he was seeking attorney fees and damages for emotional distress, as well as the funds collected through garnishment and interest thereon. Brinson denies making such statement.

In December of 1989, Brinson filed the present complaint in state court.

The bank’s and Mann’s motion for summary judgment argued that Brinson’s action in magistrate court barred the claims asserted in Count I under the doctrine of res judicata, OCGA § 9-12-40, and the Count II claim (Fair Debt Collection Practices Act) is barred by the act’s one-year statute of limitation.

1. Citing Linder v. Rowland, 122 Ga. 425 (2) (50 SE 124) (1905), Brinson argues that his causes of action in state court and magistrate court are different, his magistrate court action being an ex contractu action for money had and received (previously known as an action in assumpsit) and the present action being ex delicto or in tort. This argument is without merit.

As recognized in Crawford v. Baker, 86 Ga. App. 855, 861-862 (72 SE2d 790) (1952), the Supreme Court in Linder “held that a judgment in an action in assumpsit was not a bar to a subsequent ex delicto action between the same parties although some of the facts used in the former action were relied upon as a basis for the latter action.” However, prior to enactment of the CPA, and thus at the time Linder was decided, the joinder of ex delicto and ex contractu causes of action was generally prohibited. Cohen v. Garland, 119 Ga. App. 333 (3) (167 SE2d 599) (1969). Under the CPA’s liberalized rules of pleadings, this is no longer the case. Id.; see OCGA § 9-11-8. Moreover, the court in Crawford found Linder to be distinguishable where the subject matter of an equitable action for injunctive relief and a subsequent tort action for damages was the same. As held in Crawford, “The law does not permit a splitting of the action seeking the enforcement of separate and distinct remedies. In Conwell v. Neal, 118 Ga. 624 (45 SE 910), it was held: ‘ “It is undoubtedly a settled principle that a party seeking to enforce a claim, legal or equitable, must present to the court, either by the pleadings or proofs, or both, all the grounds upon which he expects a judgment in his favor. He is not at liberty to split up his demand and prosecute it by piecemeal, or present only a portion of the grounds upon which special relief is sought, and leave the rest to be presented in a second suit, if the first fail. . . .” ’ ” Crawford, supra at 859; accord Madison, Ltd. v. Price, 146 Ga. App. 837, 839 (1) (247 SE2d 523) (1978). This holding has been repeated in such cases as Standard Steel Works Co. v. Williams, 158 Ga. 434, 451 (1) (124 SE 21) (1924), and Story v. Rivers, 220 Ga. 232 (138 SE2d 304) (1964), postdating Linder.

This case differs from the recently decided case of Lawson v. Watkins, 261 Ga. 147 (401 SE2d 719) (1991). Plaintiff Brinson has split his demand as to the same subject matter, i.e., defendants’ allegedly wrongful garnishment of his money. In Lawson there were unrelated claims, i.e., those arising out of loans and those arising out of the racetrack ownership, so that Watkins was not foreclosed by res judicata from bringing two suits. Brinson is subject to the principle recognized in Lawson, that “a plaintiff must bring every claim for relief he has concerning the same subject matter in one lawsuit.” Id. at 149-150 (2).

2. Under this holding, there is no merit in Brinson’s argument that his magistrate court action is not res judicata as to his claim for damages for emotional distress, since such damages cannot be awarded in a contract action.

The magistrate court has jurisdiction over civil claims in which exclusive jurisdiction is not vested in the superior court. OCGA § 15-10-2 (5). Accordingly, this damage claim could have been asserted in magistrate court; for res judicata purposes it is a matter which under the rules of law could have been put in issue. E.g., Helmuth v. Life Ins. Co. of Ga., 194 Ga. App. 685 (391 SE2d 412) (1990). If it is cognizable in state court, it would have been cognizable in magistrate court. By bringing the action in magistrate court, Brinson relinquished damage claims in excess of the magistrate court’s jurisdictional amount. See Jennings v. Stripling, 127 Ga. 778 (1) (56 SE 1026) (1906); but cf. Smith v. Pope, 100 Ga. App. 369 (2) (111 SE2d 155) (1959).

3. Brinson argues that the judgment in magistrate court is not conclusive because it was not an adjudication on the merits. See Hughes v. Cobb, 195 Ga. 213, 230 (5) (23 SE2d 701) (1942); Liner v. North, 194 Ga. App. 175, 178 (1) (390 SE2d 263) (1990). This argument is without merit. Regardless of the terminology used, the magistrate court judgment states that Brinson’s claim was rejected because all of the funds collected in the garnishment proceedings had been returned to him. This is an adjudication on the merits.

4. Brinson seeks to avoid the bar of res judicata as to his claims against Crowe & Mann by arguing that they are not in privity with the bank.

He cites Gilmer v. Porterfield, 233 Ga. 671, 674 (2) (212 SE2d 842) (1975), “Although a master has privity with his servant and can claim the benefit of an adjudication in favor of the servant, [cit.], a servant is not in privity with the master so as to be able to claim the benefit of an adjudication in favor of the master. [Cits.]”

However, in McNeal v. Paine, Webber, Jackson & Curtis, Inc., 249 Ga. 662 (2) (293 SE2d 331) (1982), the Court held that this rule applies only in cases, such as Gilmer, where there are defenses which are available to the master but not available to the 'servant. Where the master is sued under the doctrine of respondeat superior for actions of the servant within the scope of the servant’s authority, and there are no defenses available to the master which are not available to the servant, the action adjudicating the master’s liability is res judicata and bars a subsequent action against the servant.

Brinson seeks to avoid application of the McNeal rule by arguing that a $257.19 attorney fee was in the possession of Mann at the time the judgment underlying the garnishment proceedings was set aside. He contends that although he had a claim against Mann for this residual sum, he had no such claim against the bank. This argument also fails.

By the time the action in magistrate court had been commenced, all garnishment funds in the possession of either Mann or the bank had been released. Brinson has had no claim against Mann that could not be asserted against the bank, and the bank has had no defense which could not be asserted by Mann. The rule of McNeal therefore applies. See also Medlin v. Carpenter, 174 Ga. App. 50, 51 (2) (329 SE2d 159) (1985). (“A cause of action is barred by the doctrine of res judicata even if some new factual allegations have been made, some new relief has been requested, or a new defendant has been added.”) Cf. Nannis Terpening & Assoc. v. Mark Smith Constr. Co., 171 Ga. App. 111 (1) (318 SE2d 89) (1984).

The bank and Mann have carried their burden of proving their res judicata defense as to all of Count I at least. See generally Boozer v. Higdon, 252 Ga. 276 (1) (313 SE2d 100) (1984).

5. Brinson’s claim under the Pair Debt Collection Practices Act is barred by the Act’s one-year statute of limitation. 15 USC § 1692k (d). This action was filed by Brinson in December of 1989. Both the bank and Mann had refunded to him monies in their possession prior to October of 1988. Neither defendant is liable in tort for the $510.99 inadvertently retained by the court clerk and not returned to appellant until December of 1988. Compare Hogan v. Maxey, 121 Ga. App. 490 (2) (174 SE2d 208) (1970); Atlantic Co. v. Farris, 62 Ga. App. 212, 220 (6) (8 SE2d 665) (1940).

6. This being an action at law, Brinson is correct in his contention that the doctrine of laches is inapplicable. Virgil v. Kapplin, 187 Ga. App. 206 (4) (369 SE2d 808) (1988).

Inasmuch as the bank and Mann were entitled to summary judgment, the denial of partial summary judgment to Brinson as plaintiff was correct.

Judgment affirmed.

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

Decided June 24, 1991

Reconsideration denied July 17, 1991.

Ralph S. Goldberg, for appellant.

Schwall, Ruff & Goodman, Emory A. Schwall, Robert S. Wayne, for appellees.


text:
    A91A0621.
    THE STATE v. BECK.
    (409 SE2d 57)
   Carley, Judge.

In a two-count indictment, appellee was charged with the commission of acts of child molestation against two of his nieces. More than 10 days prior to trial, the State filed what was denominated as its “NOTICE OF SIMILAR TRANSACTIONS.” In this notice, the State indicated its intent to offer evidence that appellee had “molested other family members including [four specified females] which incidents occurred prior to those charged in the present indictment and which occurred in Douglas County.” Upon the call of the case for trial, appellee’s counsel objected to the State’s notice, urging that it was not in compliance with Rule 31.3 (B) of the Uniform Rules for the Superior Courts (Rules). The trial court agreed and held that the State would be barred from introducing evidence of appellee’s commission of acts of molestation against any other family members.

At the ensuing trial, during the direct examination of one of the victims, counsel for the State asked if she had told two of her older sisters “what [appellee] had been doing to [her]?” When the victim responded that she had, she was then asked whether her two older sisters had seemed “surprised when [she] told them?” When the victim responded that they had, she was then asked “[w]hy were they surprised?” To this question, the victim responded: “Well, because they have — well, because [appellee] had touched them, too, and they didn’t think that he would do it to his own nieces.” The victim’s two older sisters were among the four family members who had been listed in the State’s pre-trial notice and, when the victim gave the above-quoted testimony, appellee moved for a mistrial. The trial court granted appellee’s motion.

Prior to appellee’s retrial on the child molestation charges, he filed a plea of double jeopardy. The trial court sustained appellee’s plea and the State appeals.

“Where a defendant moves for and obtains a mistrial, double jeopardy is not normally implicated except where the motion results from prosecutorial misconduct designed to avoid an acquittal. [Cits.]” (Emphasis supplied.) State v. Whitehead, 184 Ga. App. 162, 163 (361 SE2d 41) (1987). “[A]ctions of the prosecutor constituting even intentional prosecutorial misconduct do not raise the bar of double jeopardy, . . . unless the prosecutor’s actions were intended to subvert the protections afforded by the Double Jeopardy Clause. [Cits.]” (Emphasis supplied.) Williams v. State, 258 Ga. 305, 312 (1A) (369 SE2d 232) (1988). In sustaining appellee’s plea of double jeopardy, the trial court found merely that counsel for the State had “intentionally introduced . . . similar crimes evidence in violation of the [trial] Court’s ruling” and, based upon this finding, the trial court concluded that “such intentional conduct ... is sufficient to bar retrial. . . .” However, intentional prosecutorial misconduct, standing alone, is not sufficient to bar retrial. Double jeopardy does not attach unless the prosecutorial misconduct was intended to subvert the protections afforded by the double jeopardy clause. Williams v. State, supra; State v. Whitehead, supra. “The trial court found that the [Sjtate’s attorney intended to introduce the evidence. . . . This does not establish that the [S]tate intended to subvert the protections afforded by the double jeopardy clause. . . . The' trial court’s decision was clearly not based upon the proper standard, there is no evidence of a fatal intention, and the judgment barring further prosecution on the ground of double jeopardy was error.” State v. Whitehead, supra at 163-164.

Decided June 25, 1991

Reconsideration denied July 17, 1991

J. David McDade, District Attorney, Lois W. Gerstenberger, Assistant Distant Attorney, for appellant.

Alden W. Snead, J. M. Raffauf, for appellee.

Judgment reversed.

Banke, P. J., and Beasley, J., concur.


author: Cooper, Judge.

text:
    A91A0274.
    OSBORNE v. HUGHES.
    (409 SE2d 58)
   Cooper, Judge.

Appellant filed her original complaint against appellee on November 10, 1988, to recover for injuries sustained in an automobile accident which occurred on December 11,1986. The sheriff’s return of service reflects that service was accomplished by leaving a copy of the complaint with appellee’s mother at a Decatur, Georgiá, address on December 4, 1988. Appellee filed a timely answer in which improper service and jurisdiction over the person were raised as defenses. On November 1, 1989, appellee filed a motion to dismiss in which she alleged insufficiency of service and jurisdiction over the person. Affidavits were filed in support of the motion in which appellee and her mother stated that on December 4, 1988, appellee resided at another Decatur address, and copies of appellee’s driver’s license and voter registration card were attached, which reflected her residence at the second Decatur address. On January 8, 1990, prior to the trial court’s consideration of appellee’s motion, appellant voluntarily dismissed the action without prejudice. Then, on January 23, 1990, notwithstanding appellant’s dismissal of her action, the trial court entered an order granting appellee’s motion to dismiss on the grounds that appellee was not properly served within the applicable statute of limitation or reasonably beyond the statute of limitation.

Decided June 28, 1991

Reconsideration denied July 19, 1991

Appellant filed the instant action on February 7, 1990. Appellee was personally served on March 21,1990, and filed a timely answer on April 20, 1990, raising the expiration of the statute of limitation and laches as defenses. Appellee again filed a motion to dismiss alleging the same grounds on June 19, 1990, and the trial court granted the motion on August 28, 1990. Appellant appeals from that order.

“The complaint in the instant case was filed more than two years after the collision, but within six months of appellant’s dismissal of the complaint which she had filed in [DeKalb] County. However, in order for the filing of the complaint in the case at bar to qualify under OCGA § 9-2-61 as a valid renewal of a previously dismissed action, the proceedings which appellant dismissed . . . must have constituted a ‘valid action.’ [Cit.] ... ‘In order to bring within the provisions of (OCGA § 9-2-61) an action which has been dismissed, so as to make the same stand upon the same footing as to limitation as the original case, it is essential that the declaration filed in the first instance should have been served upon the defendant. . . .’ [Cits.]” Acree v. Knab, 180 Ga. App. 174 (348 SE2d 716) (1986).

“Service must be perfected personally upon the defendant or otherwise in accordance with OCGA § 9-11-4 (d) (7). Service upon [appellee’s] mother at her residence ... is not service within the meaning of the code section.” Seabolt v. Edghill, 192 Ga. App. 715, 716 (2) (386 SE2d 376) (1989). Thus, there was no service upon appellee within the statute of limitation, and the original cannot be considered a “valid action” in accordance with Aeree, supra, based upon appellant’s failure to serve appellee within the applicable statute of limitation. See Wilkins v. Butler, 187 Ga. App. 84 (369 SE2d 267) (1988). The trial court did not err in granting appellee’s motion to dismiss.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.

Harrison & Harrison, G. Hughel Harrison, Samuel H. Harrison, for appellant.

Cooper & Associates, James C. Williford, for appellee.


text:
    A91A0347.
    COOPER v. THE STATE.
    (408 SE2d 797)
   Cooper, Judge.

Appellant was convicted in a jury trial of child molestation and appeals the denial of his motion for new trial.

1. Appellant contends the trial court erred in allowing Patricia Cooper (“Patricia”), the mother of the victim, to sit behind the victim during the victim’s testimony. Patricia and the victim were appellant’s wife and child, respectively, and the evidence demonstrated that the couple had been having marital problems before the alleged incident occurred. Appellant argues that Patricia manipulated the 11-year-old to accuse him of molestation to prevent him from proceeding with his threat to take their four children away from her and that her presence in the courtroom and in such close proximity to the victim influenced the victim’s testimony. Before the victim testified, the trial court asked if she would be more comfortable with her mother sitting behind her. The court directed Patricia to sit quietly behind the victim and warned her not to attempt to communicate in any way with the victim. The victim sat, with her back to Patricia, facing the jury and the attorneys. Counsel for appellant made a timely objection to Patricia’s presence and placement in the courtroom; however, he did not state the basis for the objection, nor did he raise the issue appellant now asserts on appeal. “Issues raised for the first time on appeal will not be considered by this court. [Cits.]” Vick v. State, 194 Ga. App. 616 (1) (391 SE2d 455) (1990).

2. Appellant next enumerates as error the admission of certain expert testimony on the child abuse syndrome. Appellant specifically argues that the trial court erred in allowing a psychologist, who had examined the victim, to testify as to his conclusion that she suffered from child abuse syndrome. Relying on Allison v. State, 256 Ga. 851 (6) (353 SE2d 805) (1987), appellant contends this testimony was tantamount to stating the victim was abused, the ultimate issue to be decided by the jury. The psychologist’s testimony included a discussion of characteristics of sexually abused children and his observations of the victim after having had 15 sessions with her. Such expert testimony is competent evidence under OCGA § 24-9-67. The psychologist was asked by the State, “Does she fit the child abuse syndrome?” to which the psychologist replied, “Yes, she does.” In Allison, the court held that a clinical psychologist’s testimony that the victim not only fit the syndrome but that she had in fact been abused was an inadmissible inference which the jurors could draw for themselves. Id. In the instant case, the testimony was not a conclusion that the victim was in fact abused; that issue was left to the jury to determine. Thus, the trial court did not err in admitting the testimony. Appellant’s reliance on Allison, supra, is misplaced.

Decided June 10, 1991

Reconsideration denied July 19, 1991.

Michael L. Bankston, for appellant.

J. Brown Moseley, District Attorney, Donald E. Henderson, Assistant District Attorney, for appellee.

3. Finally, appellant raises the general grounds and contends the State failed to establish venue and jurisdiction. Viewing the evidence in a light to support the jury’s verdict, it appears that there were two instances in which the victim had been molested, one of which occurred on Halloween in 1987 in a house in which the family lived in Mitchell County, Georgia. In an interview with a caseworker with the Department of Family & Children Services, the victim diagramed the family home and indicated that the assault took place on a sofa in the living room when Patricia was away from the home. The victim revealed that appellant had touched her in private places and placed his penis in her vagina and anus. She had a great deal of difficulty relating the events, and what she had difficulty saying she wrote down. She also circled the genital areas on both male and female diagrams and the hands on the male diagram to indicate where she had been touched and with what. The victim testified at the trial that appellant removed both her clothes and his clothes, touched her private parts and placed his penis in her vagina. A physician testified that his examination revealed that the victim had been penetrated. Based on the foregoing, we conclude that a rational trier of fact could have found appellant guilty of the offense of child molestation in Mitchell County beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Adsitt v. State, 248 Ga. 237 (2) (282 SE2d 305) (1981).

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0365.
    STONE v. CANAL INSURANCE COMPANY.
    (408 SE2d 801)
   Carley, Judge.

The relevant facts in this appeal are as follows: Appellant-defendant was operating his pickup truck when he collided with another vehicle. At the time of this collision, an empty trailer belonging to someone else was being towed behind appellant’s pickup truck. Appellee-plaintiff brought the instant declaratory judgment action, seeking a declaration that it afforded appellant no liability coverage for the collision. After discovery, appellee moved for summary judgment. The trial court granted summary judgment in favor of appellee and appellant appeals.

Appellee does not rely upon a policy exclusion which, by its specific terms, relates to “trailers.” Compare American Cas. Co. v. Callaway, 75 Ga. App. 799, 801 (1) (44 SE2d 400) (1947). Instead, appellee relies upon a policy exclusion for “bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of any . . . haulaway . . . owned, hired, or held for sale by [appellant] and not being delivered, demonstrated or tested. ...” (Emphasis supplied.) “Haulaway” is defined only as “automobiles used to tow, pull or transport automobiles, cargo or freight.”

It is not exactly clear what the trial court found to be the excluded “haulaway” in the instant case. It is clear, however, that the trailer itself would certainly not constitute an excluded “haulaway,” even assuming that the trailer could be considered to be a “haulaway” at all. The trailer was not “owned, hired, or held for sale” by appellant. The trailer was owned by someone else, for whom appellant was gratuitously towing it at the time of the collision. “ ‘Exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.’ [Cits.]” Alley v. Great American Ins. Co., 160 Ga. App. 597, 600 (287 SE2d 613) (1981).

Appellant’s pickup truck would not necessarily constitute an excluded “haulaway” as a matter of law. “[T]he issue of whether or not a pickup truck falls within the definition is one of fact to be determined by the jury. ‘One cannot say that á pickup, per se, either is or is not a passenger automobile. . . . [M]any a pickup is purchased and used exclusively for the transportation of passengers — the only cargo it ever sees is the owner’s vacation camper. . . . On the other hand, where an identical truck is purchased and used by a commercial enterprise exclusively for the hauling of cargo, it could not reasonably be considered a “private passenger automobile.” ... In between these extremes lies a vast area where the classification of the truck must necessarily depend on the proof. . . .’ [Cits.] It follows that ‘evidence as to the construction of the vehicle, how such vehicle was commonly used, and how it was being used is competent and material.’ [Cit.]” Sanders v. Ga. Farm &c. Ins. Co., 182 Ga. App. 279, 283-284 (2) (355 SE2d 705) (1987). Accordingly, resolution of the instant case is dependent upon whether the evidence, when construed most strongly against appellee, would nevertheless demand a finding that appellant’s pickup truck was an excluded “haulaway.”

Decided June 18, 1991

Reconsideration denied July 22, 1991

0. Wayne EUerbee, for appellant.

Crim & Bassler, Harry W. Bassler, Thomas S. Bechtel, for appellee.

At the time of the actual collision, appellant’s pickup truck was not being used to tow, pull or transport automobiles, cargo or freight. It was merely being used to tow an empty trailer. Although there is evidence that appellant may have previously used the pickup to tow other automobiles, there is no evidence which demands a finding that he had exclusively or even commonly used it for that purpose. “Haulaway” is defined as “automobiles used to tow, pull or transport automobiles, cargo or freight.” (Emphasis supplied.) “Haulaway” is not defined as automobiles capable of such use or as automobiles which the insured may have occasionally put to such use. There being no evidence which would demand a finding that appellant’s use of his pickup was such as to render it an excluded “haulaway” as a matter of law, it necessarily follows that the trial court erred in granting summary judgment in favor of appellee. “[T]he issue of whether or not [appellant’s] pickup truck falls within the definition is one of fact to be determined by the jury.” Sanders v. Ga. Farm &c. Ins. Co., supra at 283 (2).

Judgment reversed.

Banke, P. J., and Beasley, J., concur.


text:
    A91A0465.
    ZUMPANO ENTERPRISES, INC. v. GEORGIA TILE DISTRIBUTORS, INC.
    (408 SE2d 813)
   Banke, Presiding Judge.

The appellant, Zumpano Enterprises, Inc., filed this action against the appellee, Georgia Tile Distributors, Inc., seeking to recover $10,631.17, plus interest, allegedly due on an open account. The complaint was later amended to include an alternate claim for recovery under the theory of unjust enrichment. Following a non-jury trial, judgment was entered in favor of the appellee, and this appeal followed.

Decided July 2, 1991

Reconsideration denied July 22, 1991.

Neil A. Moskowitz, for appellant.

In December of 1987, the appellee telefaxed a purchase order for tile to Windsor Ceramic, a Canadian tile manufacturer which is not a party to this action. In early January of 1988, the appellant was awarded a “master distributorship” by Windsor, giving it exclusive distribution rights in the southeast for Windsor’s product. On January 12, 1988, the appellant’s president and the appellee’s president engaged in a telephone conversation concerning the tile order the appellee had placed with Windsor. The appellant’s president testified that, acting pursuant to instructions from Windsor, he took a duplicate order for the tile from the appellee’s president during this conversation. However, the appellee’s president denied this and further denied any knowledge that the appellant was purporting to act in the capacity of Windsor’s exclusive distributor at that time. The tile was shipped by Windsor on January 14, 1988, and was subsequently received and resold by the appellee. The appellant thereafter invoiced the appellee for the tile, but the appellee has refused to pay that invoice, even though it concedes that it has not been billed for the tile by Windsor. The appellee presented evidence that it anticipated that its indebtedness to Windsor for the tile would be offset by a credit for the purchase price of an unrelated shipment of tile which it intended to return to Windsor. The trial court based its judgment in favor of the appellee on a finding that there was “no privity of contract” between the parties.

On the same date the appellant filed its notice of appeal, it also filed a motion pursuant to OCGA § 9-11-52 (c) seeking to have the judgment amended, both to include findings of fact on the open account claim and to address its claim for recovery based on unjust enrichment. That motion was, however, denied. Held:

We must agree with the appellant that the judgment entered by the trial court is deficient in that it fails to address his unjust enrichment claim at all and contains insufficient findings of fact with respect to the open account claim to permit its ruling on that count of the complaint to be reviewed on appeal. The judgment is accordingly vacated; and the case is remanded for the entry of appropriate findings of fact and conclusions of law on both theories of recovery.

Judgment vacated and case remanded with direction.

Carley and Beasley, JJ., concur.

Joel E. Dodson, for appellee.