author: Eldridge, Judge.

text:
    A96A1732.
    STRANGE v. HENDERSON.
    (477 SE2d 330)
   Eldridge, Judge.

Appellant, Lewis W. Strange, challenges a judgment of the State Court of Chattooga County,- Georgia, in the amount of $25,000 in favor of appellee, Hugh Henderson. Appellee successfully sued appellant for oral defamation based on appellant’s statements during a radio broadcast in July 1991.

The incident involved a radio talk show known as “Feedback,” which encouraged listeners to call in and discuss current events with a moderator. Appellant participated regularly, to the point that he sometimes referred to his contributions to “Feedback” as the “Lewis Strange Show.” While on the air, appellant discussed issues ranging from abortion rights and religion to county tax problems. He testified that he often said things on the air that he did not believe as “entertainment” for the listeners.

On July 9, 1991, appellant called into the radio show and discussed a recent fire at a building owned by appellee. During his time on the air, appellant named appellee as owner of the building and stated that the building was not insured; that appellee was attempting to get a government grant to rebuild the building at taxpayer expense instead of “being responsible and covering [his] behind and having insurance”; and that property taxes on the building were “way delinquent.”

Appellant admits that he had done nothing to confirm his statements before making them on the air and that his information came from an anonymous phone call prior to the broadcast. He claims that he learned later , that day that he was wrong about the building’s insurance; he called the radio station the next day to say that appellee was “not involved” in the subject of the previous day’s discussion and to apologize to appellee. Appellant never apologized to appellee directly, although they had some contact in the days after the broadcast.

After the case was filed, appellant notified appellee that he intended to introduce the tapes of the broadcast at trial. However, appellant filed a motion in limine immediately prior to the trial to exclude as immaterial many of appellant’s controversial statements that were made during the broadcasts on July 9 and 10, 1991. The court denied the motion, and the jury heard a complete tape of the broadcast, as well as an abbreviated version containing just the statements at issue in the trial. In addition, jurors were given written transcripts of the tapes to assist them in following the broadcast dialogue during the trial.

Defamation via a radio or television broadcast (or a “defamacast,” as it has become generally known) includes elements of both libel under OCGA § 51-5-1, and slander under OCGA § 51-5-4. S & W Seafoods Co. v. Jacor Broadcasting, 194 Ga. App. 233 (390 SE2d 228), cert. denied, 194 Ga. App. 912 (1990); Montgomery v. Pacific & Southern Co., 131 Ga. App. 712, 715 (206 SE2d 631), aff’d 233 Ga. 175 (210 SE2d 714) (1974). Libel is a “false and malicious defamation of another . . . tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” OCGA § 51-5-1. According to OCGA § 51-5-4 (a) (3), slander or oral defamation includes, inter alia, “[mjaking charges against another in reference to his trade, office or profession, calculated to injure him therein. . . .” This type of defamation is actionable per se and damage is inferred. Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 852 (278 SE2d 689) (1981); Sherwood v. Boshears, 157 Ga. App. 542, 543 (278 SE2d 124) (1981); Southland Corp. v. Garren, 138 Ga. App. 246, 250 (225 SE2d 920), rev’d on other grounds, 237 Ga. 484 (228 SE2d 870) (1976); Mell v. Edge, 68 Ga. App. 314 (22 SE2d 738) (1942).

1. In the first enumeration of error, appellant asserts that the trial court erred in failing to charge the jury pursuant to OCGA § 51-5-4 (b), that proof of special damages is essential to support this action. Appellant claims that his statements that appellee was uninsured. and had hot paid property taxes were not references to appellee’s “trade, profession, or business,” since appellee was retired. Therefore, appellant asserts, the statements were not actionable per se under OCGA § 51-5-4 (a) (3), and appellee could not recover without proving special damages. OCGA § 51-5-4 (b).

However, appellee testified that he was “semi-retired” at the time of the incident, and that he continued to own and manage rental property, including the property referred to by appellant during the broadcast. Supporting the evidence that appellee was still employed in real estate at the time of the incident was appellant’s admission that he had purchased property from appellee after the incident. A false accusation that the owner of rentál property failed to insure or pay property taxes on such property could reasonably be construed to refer to one’s “trade, profession, or business.” Therefore, the accusation is actionable per se, and special damages do not have to be proved to sustain a finding of defamation under OCGA § 51-5-4 (a) (3).

2. In the second enumeration of error, appellant asserts that the trial court erred in not granting appellant’s motion in limine, and thereafter allowing into evidence appellant’s immaterial, irrelevant, and prejudicial statements regarding his controversial views on religion and abortion.

Under OCGA § 24-2-4, “[w]here either party introduces part of a document or record, the opposite party may read so much of the balance as is relevant.” In addition, under OCGA § 24-3-38, “[w]hen an admission [] is given in evidence by one party, it shall be the right of the other party to have the whole admission and all the conversation connected therewith admitted into evidence.” These rules provide the context necessary for the jury to determine the speaker’s “true drift, intent and meaning” when the statement was made. See Smalls v. State, 105 Ga. 669, 671 (31 SE 571) (1898); Peacock v. State, 170 Ga. App. 309, 312 (316 SE2d 864) (1984).

In the case sub judice, appellant notified appellee of his intention to introduce as evidence tapes and transcripts of the July 9 and 10, 1991 broadcasts of the “Feedback” radio show. He later filed a motion in limine seeking to exclude appellant’s “ranting and raving” and other “idle banter” from evidence. The trial court denied the motion.

In introducing the tapes as evidence, appellant apparently intended to prove that his motivation for making the statements about appellee was to influence public policy by informing “Feedback” listeners about tax issues. However, when confronted upon cross-examination with several controversial statements he made on the radio within moments of the statements at issue, appellant claimed that he did not always believe what he said on the air and was “just entertaining” the public.

The statements regarding abortion and religion, which the appellant wants to exclude, are relevant to the case because they provide a context from which the jury could have inferred that, rather than serving a legitimate public service, appellant instead was acting maliciously to incite the public with a reckless disregard for the truth. See OCGA § 51-5-5; Melton v. Bow, 145 Ga. App. 272 (243 SE2d 590), aff’d 241 Ga. 629 (247 SE2d 100), cert. denied, 439 U. S. 985 (99 SC 576, 58 LE2d 656) (1978); Montgomery, supra at 716. “ £[W]hen the totality of the circumstances suggests malice, . . . even though the publisher may testify that he acted in good faith (or without malice) “the facts, all the facts, are to be considered in arriving at the truth of his real motive.” (Cits.) It is never expected that the publisher will admit his own malice. . . . The circumstances, all of the circumstances, must be considered, and from those ... a jury may properly conclude the publisher was motivated by malice.’ [Cits.]” Melton, supra at 272-273. To be defamatory, a statement must be both false and malicious, OCGA § 51-5-1; therefore, the jury’s determination regarding appellant’s motivations in making the statements at issue is material to the case sub judice, and the statements were properly admitted into evidence for the jury’s consideration.

Appellant also asserts that the abortion and religion statements prejudiced the jury against appellant. However, no mention of potential prejudice was made in appellant’s motion in limine, nor were objections made when the tapes were played to the jury. “ ‘Failure to object in the trial court leaves nothing for this court to review on appeal. [Cit.]’ ” James v. Tyler, 215 Ga. App. 479, 480 (451 SE2d 506) (1994). Therefore, appellant failed to preserve this issue for consideration by this Court.

3. Finally, appellant asserts that the verdict, judgment, and order overruling appellant’s motion for new trial should be reversed, as the verdict is contrary to law, contrary to the evidence, and against the weight of the evidence.

Specifically, appellant asserts that the statements at issue could not have been defamatory because they were true. Appellant claims that appellee had underinsured his building by one third of its value, i.e., $200,000 of its approximately $300,000 value. In addition, appellant notes that appellee had been delinquent in payment of his property taxes in 1988 and 1989.

However, appellant’s statements on the “Feedback” radio show in 1991 were that “Mr. Henderson there in town owns that building. . . . And the building burnt down, there was no insurance, . . . [and] that property was way delinquent on these property taxes . . .” at the time of the fire. (Emphasis supplied.) Appellant admitted during his testimony that the statements were false. Therefore, this Court rejects appellant’s belated, contradictory, and meritless argument that the statements were, in fact, true after all.

Decided October 2, 1996

Reconsideration denied October 16, 1996.

W. Benjamin Ballenger, for appellant.

Cook & Connelly, Bobby Lee Cook, Todd M. Johnson, for appellee.

Further, appellant asserts for the first time that his broadcast statements were privileged as a matter of law, since they were “[statements made with a good faith intent on the part of the speaker to protect his or her interest in a manner in which it is concerned.” OCGA § 51-5-7 (3). However, appellant did not claim privilege as a defense in his answer, during pre-trial motions, through requested jury charges, at trial, or during his motions for a new trial. Therefore, the defense of privilege was waived and is not reviewable by this Court.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

       An admission is an out-of-court statement which is “positive or substantive proof of the facts asserted” and “inconsistent with the contention of the party.” Seaboard Coast Line R. Co. v. Duncan, 123 Ga. App. 479, 480 (181 SE2d 535) (1971).


source: Caselaw Access Project

license: Public Domain

text:
    A96A2140.
    WADE v. THE STATE.
    (477 SE2d 328)
   Eldridge, Judge.

Appellant was charged by accusation with DUI. The case was called, issue was joined, and a jury was selected on April 9, 1996. During the trial, after the State rested its case, appellant made an oral motion to quash the accusation on the ground that it did not set forth a crime. The trial court denied the motion to quash, and appellant was found guilty of DUI.

The evidence at trial presented by Jefferson City Police Sergeant Dennis Thomas revealed that the appellant was operating a pickup truck on U. S. Highway 11 in Jackson County, Georgia, on February 27, 1995. The officer followed directly behind the appellant for approximately a quarter of a mile and observed that the vehicle crossed the yellow centerline three or four times. Sergeant Thomas initiated the blue lights, and the appellant pulled into a convenience store lot. The appellant exited from his vehicle and was able to produce his driver’s license and proof of insurance. Sergeant Thomas testified that the appellant staggered and stumbled as he walked from the truck. Sergeant Thomas detected an odor of alcoholic beverage coming from the appellant. When Sergeant Thomas asked the appellant if he had consumed alcoholic beverages, the appellant replied by asking the officer to give him a break. Sergeant Thomas testified that he gave the appellant an alcosensor field test, which appellant failed. Sergeant Thomas testified that he believed the appellant to be under the influence of alcohol at the scene of the arrest, and further testified that he believed the appellant to be a less safe driver due to the effect of his consumption of alcoholic beverages. The appellant testified that before driving his vehicle, he had consumed two beers.

Appellant alleges that “the trial court erred when it denied appellant’s motion to quash the defective accusation when appellant can admit the accusation and still be innocent of the offense charged.”

Appellant was charged by accusation with “the offense of misdemeanor, to-wit; D.U.I. [OCGA §] 40-6-391 for the accused did in Jackson County, Georgia, unlawfully and contrary to the laws of said State, the good order, peace and dignity thereof on February 27, 1995 operate a motor vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive.” The language in the accusation contains virtually the same language as the DUI statute prior to 1974. Prior to 1974, the statute made it a criminal offense “for any person who is under the influence of intoxicating liquor to operate or drive any vehicle.” Ga. L. 1953, Nov.-Dee. Sess., pp. 556, 575, § 47; former Code Ann. § 68A-902. In 1974, the law changed to make it unlawful to “drive or be in actual physical control of any moving vehicle while under the influence of alcohol.” Ga. L. 1974, pp. 633, 671-672, § 1. This language is embodied in the current DUI statute, OCGA § 40-6-391, which states: “[a] person shall not drive or be in actual physical control of any moving vehicle while: (1) Under the influence of alcohol to the extent that it is less safe for the person to drive.” The appellant in this case argues that for the present accusation to have been sufficient it should have contained the words “drive or be in actual physical control of a moving vehicle.”

“OCGA § 17-7-71 (c) provides that ‘(e)very accusation which states the offense in the terms and language of the law or so plainly that the nature of the offense charged may be easily understood by the jury shall be deemed sufficiently technical and correct.’ . . . ‘The true test of the sufficiency of an indictment is not whether it could have been made more definite or certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offen(s)e, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. As long as the defendant is informed of the charges against him so that he may present his defense at trial and not be surprised by the evidence against him, as well as protect against another prosecution for the same offense, the indictment is sufficient.’ ” Broski v. State, 196 Ga. App. 116, 117 (395 SE2d 317) (1990). This Court further found in Broski, supra, that the absence of certain language in an accusation can be cured by citation to the statute, as was done in the case sub judice. Since in the case sub judice, the accusation does refer to OCGA § 40-6-391, no defect, technical or otherwise, was present in the accusation.

Decided October 2, 1996

Reconsideration denied October 16, 1996

James M. Mullís, for appellant.

Donald E. Moore, Solicitor, for appellee.

“Even if the absence of the descriptive language [‘to drive or be in actual physical control of any moving vehicle’] renders the accusation not perfect, this court on appeal must apply a ‘harmless error test’ in order to determine if the error has prejudiced defendant and thus requires reversal of his conviction. When trial has been had before the appellate court reviews the merits of the motion to quash, where no prejudice to defendant has occurred though the indictment (or accusation or citation) is not perfect, reversal is a mere windfall to defendant and contributes nothing to the administration of justice. Convictions are no longer reversed because of minor and technical deficiencies which do not prejudice the accused. Upon a proceeding after verdict, no prejudice being shown, it is enough that necessary facts appear in any form, or by fair construction can be found within the terms of the indictment (or accusation or citation). Thus a defendant who was not misled to his prejudice by any imperfection in the indictment (or accusation or citation) cannot obtain reversal of his conviction on that ground.” (Citations, punctuation, and emphasis omitted.) Brooks v. State, 207 Ga. App. 477, 478-479 (428 SE2d 357) (1993). This Court cannot discern any prejudice to the appellant in the case sub judice. Any error by the trial court in failing to try appellant upon a less than perfect accusation is manifestly harmless.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Johnson, Judge.

text:
    A95A2471.
    JOHNSON v. THE STATE.
    (477 SE2d 913)
   Johnson, Judge.

In Johnson v. State, 219 Ga. App. 547 (466 SE2d 63) (1995), we affirmed Johnson’s conviction, affirmed his sentence in part, and vacated his sentence in part. The Supreme Court granted Johnson’s petition for certiorari to consider his challenge to the portion of the sentence we upheld, and subsequently reversed that portion of this Court’s judgment. Johnson v. State, 267 Ga. 77 (475 SE2d 595) (1996). Accordingly, the judgment of this Court in this appeal is vacated insofar as it upheld Johnson’s being sentenced to incarceration in a “boot camp,’’-the judgment of the Supreme Court is made the judgment of this Court in that respect, and the judgment of the trial court in that respect is reversed. The remainder of this Court’s original judgment, which affirmed Johnson’s conviction and reversed his sentence insofar as it required his incarceration in the county jail before reporting to boot camp, was not affected by the appeal to the Supreme Court and so remains in force. Upon remand, Johnson must be resentenced.

Decided October 16, 1996.

Lawrence S. McLarty, Robert J. Motyka, for appellant.

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellee.

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

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


author: McMURRAY, Presiding Judge.

text:
    A96A0911.
    PHILLIPS et al. v. LEISURE AUTOMOTIVE CORPORATION.
    (477 SE2d 380)
   McMURRAY, Presiding Judge.

Leisure Automotive Corporation (“the broker”) entered into a three-year contract with Leisure Guide of America, Inc. (“Leisure Guide”), for exclusive rights to sell Leisure Guide’s customized vans and trucks. The broker promised to provide Leisure Guide with at least 90 purchase orders per month, pay Leisure Guide liquidated damages — based on the number of orders short of this quota, or forfeit a significant portion of its sales territory.

Less then five months after executing the brokerage agreement, Leisure Guide posted a letter to the broker’s principal agents, William Ulm and George Phillips, terminating the deal. In this letter, Leisure Guide’s owner, Timothy Wayne Phillips, directed Ulm and George Phillips to return Leisure Guide’s demonstrator vehicles and “each and every converted van which is in your possession or in the possession of persons to whom you have delivered it for which you have not paid or the ultimate receiver has not paid.” Timothy Wayne Phillips accused Ulm and George Phillips of submitting phony purchase orders to camouflage dearths in the broker’s monthly sales quotas and claimed that Ulm and George Phillips unlawfully converted a $33,583.26 check made payable to Leisure Guide “for conversion of six vans which you took from our lot in the middle of the night without our permission some nights ago.” Timothy Wayne Phillips alleged that some automobile dealers refused to accept vehicles Leisure Guide manufactured in reliance of the broker’s fake purchase orders, asserted that the broker is responsible for any resulting losses and claimed that the broker’s failure to satisfy monthly sales quotas triggered Leisure Guide’s right to recover liquidated damages under the contract.

The broker filed an action against Leisure Guide and Timothy Wayne Phillips, alleging breach of contract, fraud, bad faith, stubborn litigiousness, interference with business relations and violations under Georgia’s Racketeer Influenced & Corrupt Organizations Act. Leisure Guide and Timothy Wayne Phillips denied the material allegations of the complaint and Leisure Guide counterclaimed for fraud, conversion, bad faith, breach of contract and stubborn litigiousness. The trial court later granted partial summary judgment with regard to the broker’s breach of contract claim, finding that Leisure Guide wrongfully terminated the contract before providing the broker with “the option to relinquish ‘sells territories’ instead of paying liquidated damages.” The trial court concluded that “the contract could not be terminated for failure to pay such liquidated damages.” The trial court then declared that Leisure Guide’s “liability [for breaching the contract] shall be determined at a trial on the issue of damages, if any.” This appeal followed. Held-.

1. Fraud, corruption and deceit in the performance of a contract not only render the contract voidable at the election of the injured party, OCGA § 13-5-5, such conduct — if proved — authorizes a broader range of damages than those generally authorized for breach of contract. Mansell v. Benson Chevrolet Co., 165 Ga. App. 568, 569 (2) (302 SE2d 114). See Fried v. Freeman, 122 Ga. App. 153, 155 (176 SE2d 458). While the contract in the case sub judice supports the trial court’s findings that the broker had an “option to relinquish ‘sells territories’ instead of paying liquidated damages,” Leisure Guide did not terminate the contract merely because the broker failed “to pay such liquidated damages.” Timothy Wayne Phillips’s deposition testimony reveals that he terminated the broker’s right to sell Leisure Guide’s products because William Ulm and George Phillips committed unlawful and deceitful acts in performance of the brokerage agreement, to Leisure Guide’s detriment. Under these circumstances,. the trial court erred in concluding that Leisure Guide wrongfully terminated the parties’ agreement. Genuine issues of material fact remain as to the parties’ opposing breach of contract claims as well as the scope of their alleged damages. The trial court therefore erred in granting the broker’s motion for partial summary judgment. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

Decided October 16, 1996.

Heard, Leverett, Phelps, Weaver & Campbell, R. Chris Phelps, Cynthia G. Weaver, for appellants.

J. Hue Henry, for appellee.

2. Our holding in Division 1 renders it unnecessary for this Court to deal with Leisure Guide’s remaining enumerations of error.

Judgment reversed.

Johnson and Ruffin, JJ, concur.

       Timothy Wayne Phillips’ testimony supports the claims he asserted against William Ulm and George Phillips in his March 10,1994, letter terminating the brokerage agreement. George Phillips, on the other hand, testified during his deposition that he did not submit “false or bogus” purchase orders to Leisure Guide. George Phillips explained that he signed some purchase orders with express permission because “[s]ome dealers would say stuff like, ‘If I’ve got to sign an order, I just don’t want to buy the van.’ ”


author: Ruffin, Judge.

text:
    A96A0987.
    JOHNSON v. HODGE.
    (477 SE2d 385)
   Ruffin, Judge.

On February 8, 1991, Latrelle Hodge filed a complaint against John Johnson for money allegedly due under a promissory note executed by Johnson. Under the note, which was dated October 12,1984, Johnson promised to pay Hodge “the sum of $46,250 . . . with interest from 12 Oct. ‘84 at the rate of 12% per cent per annum until paid in full.” Although the note required interest to be paid annually, it did not state when the principal was due. Johnson never made any payments under the note, and prior to filing this suit, Hodge never demanded that Johnson pay the note. At trial, Johnson moved for a directed verdict on the ground that Hodge’s complaint was not filed within the applicable statute of limitation. The trial court denied Johnson’s motion, and the jury awarded Hodge $46,250. Johnson appeals, asserting 16 enumerations of error. For reasons which follow, we reverse.

1. Johnson asserts that the trial court erred in denying his motion for directed verdict because the evidence showed that the statute of limitation expired. We agree.

A directed verdict should be granted “[w]here there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . . .” (Citation and punctuation omitted.) Harrison v. Martin, 213 Ga. App. 337, 341 (1) (444 SE2d 618) (1994).

The disputed issues in this case are governed by the Commercial Paper provisions of the Uniform Commercial Code (“UCC”). OCGA § 11-3-101 et seq. Under the UCC, the note at issue is a demand note. Although the note does not state that it is a demand note, the UCC provides that “[a] promise or order is ‘payable on demand’ if it (i) states that it is payable on demand or at sight, or otherwise indicates that it is payable at the will of the holder; or (ii) does not state any time of payment” (Emphasis supplied.) OCGA § 11-3-108 (a). Such note is due immediately after delivery, without further notice or demand. Murphy v. First Nat. Bank, 182 Ga. App. 788 (1) (357 SE2d 266) (1987), overruled on other grounds, Taquechel v. Chattahoochee Bank, 260 Ga. 755 (1) (400 SE2d 8) (1991).

When this suit was filed in 1991, the UCC provisions concerning the statute of limitation for demand notes were substantially different than at present. Effective July 1, 1996, the UCC’s Commercial Paper provisions were amended. See Ga. L. 1996, p. 1306, § 3. These amendments significantly extended the limitation period for actions on demand notes. OCGA § 11-3-118 (b) now provides in pertinent part that “if demand for payment is made to the maker of a note payable on demand, an action to enforce the obligation of a party to pay the note must be commenced within six years after the demand. If no demand for payment is made to the maker, an action to enforce the note is barred if neither principal nor interest on the note has been paid for a continuous period of ten years.” Because no demands or payments were ever made in this case, the amended statute would have provided for a ten-year statute of limitation.

Hodge, however, cannot rely on the amended statute. “ ‘[I]t has been held by the Supreme Court and this court that a statute is not to be construed retroactively in operation unless the language of the statute imperatively requires it. (Cits.)’ [Cit.]” Loveless v. Grooms, 180 Ga. App. 424, 425 (349 SE2d 281) (1986). OCGA § 11-3-118 contains no such language.

Rather, the limitation period in this case is governed by the former version of the UCC. Under that version a cause of action for payment on a demand note accrued “upon its date or, if no date is stated, on the date of issue.” Former OCGA § 11-3-122 (1) (b). Because the note in this case was dated October 7, 1984, under OCGA § 11-3-122 (1) (b) Hodge’s cause of action on the note accrued on that date. Furthermore, when the instant suit was filed, the limitation period was governed by OCGA § 9-3-24. That statute provides that “[a]ll actions upon promissory notes, drafts, or other simple contracts in writing shall be brought within six years after the same become due and payable.” Accordingly, under the former version of the UCC, Hodge’s complaint, which she filed on February 8, 1991, was not filed within the applicable statute of limitation.

Decided October 16, 1996.

Amelia G. Pray, Adele L. Grubbs, for appellant.

Hodge contends, however, that the statute of limitation did not expire because the parties agreed that Johnson could satisfy the note later than six years after the date of the note. In support of her argument, Hodge cites her testimony that she told Johnson “that no definite time was set up for payment of the interest or the principal, that [she] would work with him and [she] would be glad to do everything [she] could.” Although Hodge cites authority which arguably extended the limitation period under such facts, that authority predates Georgia’s adoption of the UCC.

In the case relied on, Smith v. Early, 60 Ga. App. 506 (3 SE2d 913) (1939), this Court held on reconsideration that “where the money is loaned, payable on demand, there is no rule of law that prevents an express or implied agreement between the parties that their arrangement should continue into the future for a considerable length of time before the plaintiff would be expected to demand his money, even though such contemplated demand may be made beyond the statutory period for bringing such an action.” Id. at 511-512. However, in 1962 Georgia adopted the UCC. Ga. L. 1962, p. 156, § 1. The UCC clearly established when a cause of action on a demand note accrued, thereby eliminating such extensions as were provided for in Smith. Although a plaintiff at the time Smith was decided could delay enforcement of the note, the subsequently adopted UCC placed a duty on Hodge to “seek enforcement of the instrument which [was] on its face ‘immediately’ due and payable within the applicable statute of limitation.” (Citations and punctuation omitted.) Murphy, supra at 788. Because the undisputed evidence showed that Hodge did not meet this duty, the trial court erred in failing to direct a verdict for Johnson. See Woodall v. Hixon, 154 Ga. App. 844 (2) (270 SE2d 65) (1980), rev’d on other grounds, 246 Ga. 758 (272 SE2d 727) (1980).

2. We find it unnecessary to address thé remaining enumerations of error.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, for appellee.


text:
    A96A1173, A96A1174.
    MTW INVESTMENT COMPANY et al. v. ALCOVY PROPERTIES, INC. (two cases). ALCOVY PROPERTIES, INC. v. MTW INVESTMENT COMPANY et al.
    A96A1175.
    (477 SE2d 395)
   McMURRAY, Presiding Judge.

Following the decision of this Court in Alcovy Properties v. MTW Investment Co., 212 Ga. App. 102 (441 SE2d 288), the trial court granted a pending motion which permitted Alcovy Properties, Inc. (hereafter “Alcovy”), to add a counterclaim, pursuant to Yost v. Torok, 256 Ga. 92 (344 SE2d 414), against MTW Investment Company, Lenore Sater Maslia, as executrix of the estate of Victor D. Maslia, Lee N. Terry, and Larry D. Wolfe (hereafter “defendants-in-counterclaim”). The trial of this Yost counterclaim resulted in a verdict and judgment in favor of Alcovy.

Defendants-in-counterclaim then filed a motion for judgment notwithstanding the verdict or, in the alternative, motion for new trial. On November 7, 1995, the trial court entered an order on this motion which granted defendants-in-counterclaim’s motion for new trial on the issue of damages, but, pursuant to OCGA § 51-12-12 (b), conditioned the grant of new trial on Alcovy’s refusal to accept a reduced damage award. (The trial court concluded that the jury had not given consideration to condemnation proceeds of $214,500 received by Alcovy and conditioned the grant of new trial on Alcovy’s refusal to accept an award reduced by this amount.) The trial court’s order gave Alcovy two weeks from its receipt of the order to notify the trial court in writing of its intention to accept or refuse the reduced award. On November 29, 1995, the defendants-in-counterclaim filed their notice of appeal from the order of November 7, 1995, thereby initiating Case No. A96A1173.

On the following day, November 30, 1995, the trial court received a letter from Alcovy accepting the reduced award with the condition that it preserves its right to appeal if defendants-in-counterclaim appeal the judgment. The letter from Alcovy stated that it had received the November 7, 1995 order on November 13, 1995.

Also on November 30, 1995, the trial court entered an order stating findings that Alcovy’s condition was appropriate and reasonable, and holding that Alcovy’s conditional acceptance of the reduced award was sufficient to satisfy the order of November 7, 1995, and that defendants-in-counterclaim’s alternative motions for new trial or j.n.o.v. were denied. A notice of appeal from the order of November 30, 1995 was filed by defendants-in-counterclaim to initiate Case No. A96A1174 and Alcovy cross-appealed in Case No. A96A1175. Held:

Since we lack jurisdiction to consider these appeals they must be dismissed. While there may be opportunity for disagreement as to the proper construction of the order filed on November 7,1995, under any reasonable view of that order the motion for new trial either remained pending or had been granted on November 29, 1995, when the first notice of appeal was filed.

If the November 7, 1995 order is viewed as inchoate because anticipating further action by the trial court, the absence of any such further action left pending the motion for new trial of the defendants-in-counterclaim. In the alternative, if the November 7, 1995 order does not anticipate any further action by the trial court, it must be viewed as inchoate pending a timely response by Alcovy. If this is the case, we are confronted with uncertainty since Alcovy was not required to respond by a date certain, but instead within a period of time following receipt of the trial court’s order of November 7, 1995. Thus, on November 29, 1995, the date of the filing of the notice of appeal from the order of November 7, 1995, there was nothing of record to indicate whether a ruling on the motion for new trial remained pending in anticipation of Alcovy’s response or whether the expiration of the time allocated for. that response had resulted in the grant of a motion for new trial. But in either case the appeal is premature. We note that while consideration of the letter received by the trial court on the day following the filing of the first notice of appeal is not proper, such would not alter this result since the letter shows that the trial court was not notified within the period of time allotted by the November 7, 1995 order. The sum of this is that the appeal in Case No. A96A1173 is premature.

Nonetheless, while Case No. A96A1173 remained pending, the trial court lacked jurisdiction to alter the order being appealed. Anaya v. Brooks Auto Parts, 208 Ga. App. 491, 493 (1) (430 SE2d 825). Thus, the order entered on November 30, 1995, was a nullity and the appeal in Case No. A96A1174 is also premature since in the absence of the order of November 30, 1995, the record in that case shows only that Alcovy did not accept the reduced award in the time allowed so as to avoid the grant of the motion for new trial of the defendants-in-counterclaim. The grant of a motion for new trial leaves the case still pending in the trial court below and is not a final judgment. Guy v. Roberson, 214 Ga. App. 391, 392 (1) (448 SE2d 60).

The dismissal of the main appeals requires consideration of appellate jurisdiction over the cross-appeal. Since neither of the orders from which the cross-appeal is taken support a direct appeal, the cross-appeal in Case No. A96A1175 must also be dismissed. Guy v. Roberson, 214 Ga. App. 391, 392 (2), supra.

Decided October 16, 1996.

Glass, McCullough, Sherrill & Harrold, Geoffrey H. Cederholm, for MTW Investment Co.

Kerry S. Doolittle, for Alcovy Properties.

Appeals dismissed.

Johnson and Ruffin, JJ, concur.


author: POPE, Presiding Judge. Smith, Judge,

text:
    A96A1581.
    FIRST FINANCIAL INSURANCE COMPANY v. AMERICAN SANDBLASTING COMPANY.
    (477 SE2d 390)
   POPE, Presiding Judge.

Defendant First Financial Insurance Company issued a general liability policy to plaintiff American Sandblasting Company. The policy provided coverage for the painting of structures three stories or less in height. Plaintiff was painting a bridge less than three stories tall when paint overspray damaged numerous vehicles on a car dealer’s lot. Within 30 days after plaintiff filed a claim, defendant denied coverage. Plaintiff requested reconsideration and notified defendant that it intended to seek bad faith damages if defendant continued to deny the claim. Defendant reiterated its denial. More than 60 days later, plaintiff filed suit for the overspray damages it paid the car dealer. It also sought bad faith dámages and attorney fees pursuant to OCGA § 33-4-6. Subsequently, the trial court granted partial summary judgment to plaintiff regarding defendant’s liability under the policy, but reserved the issue of bad faith damages and attorney fees for trial. Following a bench trial, plaintiff was awarded these damages.

1. Defendant contends plaintiff’s claim was not covered under the policy due to an exclusion clause, and thus the trial court erred in granting plaintiff partial summary judgment. We disagree.

It is well settled that insurance policies, even when ambiguous, are to be construed by the court, and no jury question is presented unless an ambiguity remains after application of the applicable rules of contract construction. Alley v. Great American Ins. Co., 160 Ga. App. 597, 599 (287 SE2d 613) (1981). “Because insurance policies are contracts of adhesion, drawn by the legal draftsman of the insurer, they are to be construed as reasonably understood by an insured. 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.” (Citation and punctuation omitted.) St. Paul Fire &c. Ins. Co. v. Snitzer, 183 Ga. App. 395, 397 (1) (358 SE2d 925) (1987).

Here, the exclusion clause provides that: “This insurance does not apply to . . . ‘property damage,’ . . . arising out of pile driving, caisson, coffer dam, subway, sewer, tunnel, bridge, dam, subaqueous or dredging construction or operations.” Defendant contends that painting a bridge constitutes “bridge operations,” and thus that the exclusion clause is applicable. Specifically, defendant argues that the term “operations,” which is not defined in the policy, means the “doing or performing of a practical work or of something involving the practical application of principles or processes. . . .” See Webster’s Third New Inti. Dictionary at 1581 (lb) (1981). According to defendant, the process at issue here is painting, and the act of painting constitutes the application of that process, in this case, to a bridge. While such an interpretation is plausible, it is clear that the term “operations,” as used in the clause at issue, is capable of more than one reasonable interpretation. As plaintiff argues, “operation” also is defined as “the quality or state of being functional or operative —” or “the operating of. . . See Webster’s at 1581 (2b), (10). Consequently, “bridge operations” could reasonably refer to the functioning of or operating of a bridge, such as a drawbridge or toll bridge. Under such an interpretation, the exclusion clause would not apply.

“[I]f an insurance contract is capable of being construed two ways, it will be construed against the insurance company and in favor of the insured.” (Citation omitted.) Claussen v. Aetna Cas. &c. Co., 259 Ga. 333, 334-335 (1) (380 SE2d 686) (1989). Applying this rule of construction, as well as those mentioned above, we conclude that the exclusion clause is not applicable. Accordingly, the trial court did not err in granting plaintiff’s partial summary judgment motion.

2. We also reject defendant’s contention that the trial court erred in awarding plaintiff bad faith damages and attorney fees pursuant to OCGA § 33-4-6. The question of bad faith is for the trier of fact, Snitzer, 183 Ga. App. at 397 (2), and a “judgment (for bad faith penalties and attorney fees) should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer.” (Citation and punctuation omitted.) Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703, 707 (1) (302 SE2d 605) (1983). In the instant case, there was evidence to support the judgment. Plaintiff clearly pointed out to defendant in correspondence that the term “operations” was capable of more than one interpretation when given a common dictionary meaning. Plaintiff also advised defendant of the well known rule of construction which dictates that language in an insurance contract capable of more than one construction be construed in favor of the insured. Armed with such knowledge, it cannot be said as a matter of law that defendant had a reasonable defense or probable cause to deny plaintiffs claim. Defendant also failed to follow the recommended procedure for contesting coverage in cases like this. See Hilde v. U. S. Fire Ins. Co., 184 Ga. App. 611 (362 SE2d 69) (1987). Accordingly, the judgment was proper. Snitzer, 183 Ga. App. at 397 (2).

Decided October 16, 1996.

Crim & Bassler, Terence D. Williams, Michael O. Sheridan, for appellant.

Kim G. Meyer, for appellee.

Judgment affirmed.

Andrews, J., concurs. Smith, J., concurs specially.

Smith, Judge,

concurring specially.

I agree that the trial court correctly granted partial summary judgment to plaintiff, but not because the term “bridge operations” in the endorsement is ambiguous.

The damage occasioned by plaintiffs activities did not arise out of construction or operation of a bridge; instead, plaintiff was maintaining an existing bridge, and maintenance is not excluded from coverage. As noted in Division 1, it is the insurer’s duty to define clearly and explicitly limitations on coverage. St. Paul Fire &c. Ins. Co. v. Snitzer, 183 Ga. App. 395 (358 SE2d 925) (1987). Defendant was indeed careful to enumerate and exclude hazardous activities arising from construction and operation of bridges. Had the drafters of the policy wished to exclude painting as well, they could have done so. Because maintenance was not excluded, defendant was obligated by the terms of the policy to provide coverage to plaintiff. Moreover, since the policy clearly did not exclude plaintiff’s activities from coverage, I agree that the trial court did not err in its award of bad faith damages and attorney fees.


text:
    A96A1725.
    RAWLS v. BULLOCH COUNTY SCHOOL DISTRICT.
    (477 SE2d 383)
   Johnson, Judge.

James Rawls sued the Bulloch County School District, alleging it negligently failed to protect him from a foreseeable attack by Timmy Marshall. The trial court granted summary judgment to the school district, finding it entitled to sovereign immunity. Rawls appeals, claiming the trial court erred because an issue of material fact still exists regarding whether the school district was negligent. We affirm.

On the afternoon of Thursday, October 15, 1992, Angie Rawls, the sister of James Rawls, was looking out the school bus window to see if her brother would board the bus to go home from Statesboro High School, where both were enrolled. Timmy Marshall, another Statesboro High student, was sitting between Angie Rawls and the bus window. Marshall asked why Angie was looking at him, and she responded that she was not. Angie Rawls and Marshall argued until James Rawls boarded the bus. There was no other seat left for James Rawls to sit in, so he asked Marshall if he could share Marshall’s seat. Marshall refused, but James sat down with him anyway. Marshall elbowed James and James asked Marshall to stop. Marshall elbowed James again and James responded by punching Marshall. After this scuffle, Marshall left the seat and shouted to the bus driver that he would kill James and Angie.

There was no school on Friday, October 16. On the following Monday, October 19, James and Angie Rawls and Marshall all rode the bus to school. After the bus arrived at the school, James and Angie Rawls got off together and walked toward the school building. They were ten to thirty feet away from the bus when Marshall attacked James Rawls with a hammer. James suffered a fractured skull requiring the implantation of a metal plate, multiple broken teeth, and some paralysis on the left side of his body.

The school district correctly claims it is entitled to sovereign immunity from James Rawls’ suit. “The 1991 amendment [to Ga. Const, of 1983, Art. I, Sec. II, Par. IX] extending sovereign immunity ‘to the state and all of its departments and agencies’ includes countywide school districts. . . .” Coffee County v. Snipes, 216 Ga. App. 293, 294 (454 SE2d 149) (1995); see Davis v. Dublin City Bd. of Ed., 219 Ga. App. 121, 122 (1) (464 SE2d 251) (1995). This sovereign immunity “can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e). See Gilbert v. Richardson, 264 Ga. 744, 747-748 (3) (452 SE2d 476) (1994).

Rawls’ assertion that OCGA § 20-2-1090 provides such a waiver in these facts is without merit. OCGA § 20-2-1090 requires county school boards to purchase insurance for the purpose of “insuring the school children riding [school buses] to and from school against bodily injury . . . resulting from an accident or collision in which such buses are involved.” No bus was involved in a collision or accident in this case, and OCGA § 20-2-1090 says nothing about a waiver of sovereign immunity or the extent of any such waiver. Compare OCGA § 33-24-51 as interpreted in Gilbert, supra at 748-751 (4). The trial court’s grant of summary judgment was therefore proper. Whether the county was negligent, as Rawls claims it was, is not an issue which can be reached.

Decided October 16, 1996

Richard Phillips, for appellant.

Chambers, Mabry, McClelland & Brooks, Lawrence J. Hogan, Charles G. Ragsdale, Beckmann & Pinson, Joseph H. Barrow, William R. Dekle, Turner & Pool, Vanderver R. Pool, for appellee.

Moreover, even if sovereign immunity did not apply, “an intervening criminal act of a third party, without which the injury would not have occurred, will ... be treated as the proximate cause of the injury thus breaking the causal connection between the defendants’ negligence and the injury unless the criminal act was a reasonably foreseeable consequence of the defendants’ conduct. [Cit.]” Wright v. Ashe, 220 Ga. App. 91, 94 (469 SE2d 268) (1996). James and Angie Rawls both testified in deposition that threats such as the one Marshall made were not unusual among the students in their school, and that they did not take Marshall’s threats seriously. Rawls and his sister forgot about the threats over the weekend and testified that neither they nor, so far as they knew, anyone on their behalf, told any law enforcement personnel or school employees other than the bus driver that Marshall had threatened them. Rawls has therefore not shown that Marshall’s attack was reasonably foreseeable.

Judgment affirmed.

McMurray, P. J, and Senior Appellate Judge Harold R. Banke concur.


author: Blackburn, Judge. Beasley, Chief Judge,

text:
    A96A1807.
    TEXTILE COATING, LTD. et al. v. RAMIREZ.
    (477 SE2d 388)
   Blackburn, Judge.

Upon our grant of their application for discretionary appeal, Textile Coating, Ltd. and Liberty Mutual Insurance Company appeal the superior court’s order affirming the award of the appellate division of the State Board of Workers’ Compensation (Board). In the underlying workers’ compensation case, the Board affirmed the Administrative Law Judge’s denial of Ramirez’ change-in-condition claim. On appeal, the superior court reversed the Board’s decision because the ALJ had relied upon Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991), which was overruled by Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995) after the ALJ’s decision was issued and affirmed by the Board. The superior court specifically directed that the case be remanded to the ALJ for consideration in view of Maloney. Upon remand to the Board, however, the Board concluded that sufficient evidence existed to determine whether Ramirez had met his burden in showing a change in condition under the standards set forth in Maloney. Without remand to the ALJ, the Board reinstated temporary total weekly income benefits to Ramirez. Its ruling was affirmed by the superior court, which specifically approved the Board’s action in ruling without remanding the matter to the ALJ and explained that its initial order had been based on its assumption of how the Board would handle the case on remand.

The issue presented is whether the Board was required to remand the case to the ALJ for additional factfinding. Textile Coating and Liberty Mutual claim the Board’s failure to do so deprived them of due process by preventing the employer from introducing additional evidence in light of Maloney. We find no error.

The question facing the ALJ in this case was whether Ramirez had been unable to find employment because of his injury. Aden’s, supra at 219; Maloney, supra at 827. When Ramirez originally presented his case to the ALJ, Aden’s required him to prove he had made a diligent but unsuccessful search for suitable employment and prove the reasons prospective employers had refused to hire him. Maloney eliminated this latter, requirement. Maloney, supra at 827-828. In its place, the Supreme Court gave the Board the power to infer from the employee’s lack of success that employers refused to hire him because of an injury. Id. at 828.

Under the present circumstances, the Board was not required to remand Ramirez’ case to the ALJ for an evidentiary hearing upon its determination that the claimant had met the reduced Maloney standard based upon the existing record. The Board must accept the ALJ’s findings of fact that are supported by credible evidence. OCGA § 34-9-103 (a). The ALJ had found that Ramirez had “sought employment at several possible employers and was rejected.” Reviewing the ALJ’s factual findings in light of Maloney, the Board specified that Ramirez had applied for several positions “in the textile and carpet industries in which he was previously employed.” The Board concluded that Ramirez’ job search had been diligent and inferred, as allowed by Maloney, that the prospective employers rejected him because of his injury.

The Board’s actions were within its statutory powers. OCGA § 34-9-103 (a); Harrell v. City of Albany Police Dept., 219 Ga. App. 810, 811-812 (2) (466 SE2d 682) (1996). Because the only question presented was one of applying known facts to a different legal standard, the Board was entitled to -make that determination. See Har rell, supra at 812 (2), in which we remanded a similar case to the Board for reconsideration in light of Maloney and Buckner v. Bibb Yarns, 219 Ga. App. 850 (467 SE2d 183) (1996), in which this Court approved the Board’s action in applying the lesser legal standard to the ALJ’s factual findings. See also Distribution Concepts Co. v. Hunt, 221 Ga. App. 449, 450 (2) (471 SE2d 539) (1996), noting the Board’s discretion in determining whether to remand a case to the ALJ for additional factual determinations. Unlike Sadeghi v. Suad, Inc., 219 Ga. App. 92, 93 (464 SE2d 234) (1995), the Board in this case possessed all the factual findings it needed to make the ultimate legal determination under Maloney, and remand to the ALJ for an evidentiary hearing was not required. The superior court did not err by approving the Board’s actions.

Judgment affirmed.

McMurray, P. J, Birdsong, P. J., Pope, P. J., Johnson, Smith, Ruffin and Eldridge, JJ, concur. Beasley, C. J., and Andrews, J., dissent.

Beasley, Chief Judge,

dissenting.

The question is whether, on remand from the superior court in this case, the appellate division is finding facts or applying the law to facts found by the ALJ.

In order for claimants to carry their burden of showing a change in condition as a result of compensable injuries, they must show that their inability to secure suitable employment elsewhere was proximately caused by their previous accidental injuries. In Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991), this Court held that in order to meet this burden, it was necessary for claimants to show the reasons they were not hired by prospective employers. This holding was overruled in Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995), wherein the Supreme Court held that in order to receive workers’ compensation benefits based on a change in condition, a claimant must establish that he or she suffered a loss of earning power as a result of a compensable work-related injury; continues to suffer physical limitations attributable to that injury; and has made a diligent, but unsuccessful effort to secure suitable employment following termination.

In this case, the ALJ found that the employee has ongoing symptoms causally related to his on-the-job injury, and that he sought employment at several possible employers and was rejected, but that this proof is not sufficient to meet his burden as the record is silent on the reasons why he was not hired by any of these other employers. The appellate division affirmed. The superior court reversed under Maloney. On remand, the appellate division accepted the ALJ’s findings and went on to state that a preponderance of the evidence shows that the employee has attempted a diligent, unsuccessful search and has met the standard for determining change-in-condition set out in Maloney.

The majority concludes that the appellate division was entitled to make that determination because the only question presented was one of applying known facts to a different legal standard. But the ALJ did not expressly find that the employee made a diligent job search. Thus the appellate division is improperly finding facts de novo.

The ALJ is the true factfinder without de novo factfinding by the appellate division of the Board, and the appellate division must accept the ALJ’s finding when “supported by a preponderance of competent and credible evidence contained within the record” (OCGA § 34-9-103). The appellate division cannot make findings of fact in the first instance when a different test is created by the Supreme Court and the case is remanded. The question is not whether there is enough evidence in the record for the appellate division to find that the claimant met his burden of proof under Maloney, but rather whether the factfinder, the ALJ, would so find. The inferences which may be drawn are to be drawn by the factfinder. When the Supreme Court said in Maloney that the “Board may draw reasonable inferences,” it had to have meant the ALJ, who constitutes a part of “the trial division” of the Board. OCGA § 34-9-103 (a).

This is not a question of whether the appellate division must strictly comply with the superior court’s remand order. It is rather a question of “who decides.” Who has the authority to make findings of fact about what claimant proved or did not prove? It is the ALJ. Whether the ALJ allows a reopening of the evidence is another question. The employer and the insurer say they must have opportunity to present more evidence, as a matter of due process, but the ALJ may decide he has enough to find claimant met his burden. Regardless, the issue of fact is to be decided by the ALJ.

The majority cites Harrell v. City of Albany Police Dept., 219 Ga. App. 810, 812 (2) (466 SE2d 682) (1996); Buckner v. Bibb Yarns, 219 Ga. App. 850 (467 SE2d 183) (1996); and Distribution Concepts Co. v. Hunt, 221 Ga. App. 449, 450 (2) (471 SE2d 539) (1996). In Harrell, we remanded to the appellate division for reconsideration in light of Maloney after holding that the appellate division was authorized to substitute its finding for that of the ALJ on the question of whether the employee made a diligent effort to secure suitable employment. In Buckner, the ALJ found that the employees made diligent but unsuccessful efforts to secure suitable employment elsewhere but that they had not carried their burden of proof under Aden’s Minit Market and Autolite v. Glaze, 211 Ga. App. 780 (440 SE2d 497) (1994). The appellate division distinguished these decisions and opined that Aden’s Minit Market should be limited to its facts and Autolite overruled. After they were overruled in Maloney, we affirmed the appellate division. In Hunt, the question was whether the appellate division had abused its discretion in refusing to remand the case to the ALJ for the consideration of testimony claimed to be newly discovered evidence.

Decided October 16, 1996.

Kinney, Kemp, Pickell, Sponcler & Joiner, Maurice Sponcler, Jr., for appellants.

Craig & Elrod, Gene F. Cantrell, for appellee.

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


author: McMurray, Presiding Judge.

text:
    A96A1882.
    REYNOLDS v. FLINT RIVER TECHNICAL INSTITUTE et al.
    (477 SE2d 393)
   McMurray, Presiding Judge.

Plaintiff Richard Reynolds brought this action alleging fraud and breach of contract on the part of defendants Flint River Technical Institute (“Flint River”), formerly known as Upson Technical Institute), and the Georgia Department of Technical and Adult Education (“the Department”), alleging defendants “deprived him of his contract rights by terminating him ‘disguised as a reduction in force’ from his employment without just cause.” He also alleged that he was improperly granted only “six (6) retention credits based upon three (3) years of continuous service[, . . . whereas] he should have been given ten (10) retention credits. (Based upon twenty-four years of continuous service.)” Plaintiff further alleged the existence of a “coverup of the details and nature of the reduction in force [. . . as purportedly evinced by] the removal of documents from Plaintiff’s personnel file which . . . [allegedly] refute the claims made in the reduction of force plan[, and further evinced by the fact that defendants] deliberately and improperly altered the official record by placing a bogus [i.e., back-dated] letter in the file of the Defendant [Flint River]?’

In their joint answer, defendants denied the material allegations and defended in part on the basis of the written employment agreement with plaintiff. Defendants further contended that “the General Assembly mandated state wide budget cuts during 1991[, as a consequence of which, plaintiff] was properly included in the Reduction in Force pursuant to the policies and procedures promulgated by the Department and O.C.G.A. § 20-4-35.”

After discovery, defendants moved for summary judgment as to both breach of contract claim and fraud. In support of their motion, defendants relied on the following undisputed chronology: Plaintiff was hired in 1967 by the Upson County Area Board of Education as a math and physics teacher at Upson Technical Institute. In 1983, he agreed “to teach the first part of electronics and the related math, the technical math.” Plaintiff became the “team leader of [the related math department, consisting of] three instructors^]” Throughout 1988, the State of Georgia, through the Department, took over ownership, control, and operation of most locally run technical institutes, including Upson Technical Institute in July 1988. A “single system of schools . . . implemented statewide standards instead of local standards. [Plaintiff’s . . .] job remained the same but the school went fairly quickly from an individualized type [of] instruction to a . . . step lecture lab, much like college.” Plaintiff’s employer “became the [State] Board of Technical Adult Education^]” Plaintiff was given an election to remain under the Teachers Retirement System (“TRS”) or choose to participate in the Employees Retirement System of Georgia (“ERS”). Plaintiff chose the ERS, meaning that he “was no longer an active contributing . . .” member of the TRS. On July 15,1988, plaintiff applied for and began receiving retirement benefits from the TRS. Plaintiff considered himself “retired under TRS, but not retired [from working].”

Plaintiff’s 1991 contract with the State Board of Technical and Adult Education, as employer, provided, in part, that plaintiff, as “employee[,] agrees to observe such curriculum and standards and obey such reasonable rules and regulations as may, from time to time, be put in force by appropriate lawful actions of either UPSON TECHNICAL INSTITUTE or the employer.” The employment contract expressly stated that it was “made in anticipation of the employer receiving sufficient funding. In the event the employer receives less than the amount of funds scheduled to be allocated, then this contract shall be subject to termination at the discretion of the State Board.” But the contract also provided: “This contract shall not be terminated by the employer except as provided for by the policies of the Georgia State Board of Technical and Adult Education presently [sic] in force hereinafter adopted.”

Pursuant to a 1991 governmental mandate to reduce costs, the Department implemented a Reduction in Force (RIF) policy. A reduction in force is defined in part as the “lay off or demotion of one or more employees as the result of a shortage of work or funds. . . Among employees, retention credits were assigned based on “the length of continuous unbroken service in the same institution. Continuous service means an individual has been continuously employed by the institution and has not retired and been re-employed by the same institution under a different retirement system.”

The trial court granted partial summary judgment as to the fraud claim while denying summary judgment as to the contract claim. Plaintiff appeals from that partial grant of summary judgment. Held:

“ ‘Fraud by one, accompanied with damage to the party defrauded, in all cases gives a right of action. Wilful misrepresentation of a material fact, made to induce another to act, and upon which he does act to his injury, will give a right of action.’ Code [Ann.] §§ 105-301, 105-302 [now OCGA §§ 51-6-1 and 51-6-2], ‘Falsehood, or in the plainer language of some of the authorities, a lie, without damage, will not entitle the plaintiff to recover; but if there be damage with a lie, there is deceit, and injury to the party injured by the deceit is entitled to redress.’ Bennett v. Terrill, 20 Ga. 86. ‘To entitle a party to redress for an alleged deceit, he must show both fraud and damage.’ Freeman v. McDaniel, 23 Ga. 354.” Foster v. Sikes, 202 Ga. 122, 125 (42 SE2d 441).

For purposes of summary judgment, we accept plaintiff’s version of the material facts, including his years of teaching since 1967 and the alteration and substitution of documents in his personnel file. Nevertheless, in order for plaintiff to be eligible for the ten retention credits he claims, he must have had five or more years of continuous unbroken service in the same institution. But it is undisputed that plaintiff elected to receive retirement benefit's from the TRS in 1988 and begin anew under the state ERS. In out view, the legal consequence of this election is that plaintiff has not been continuously employed by the institution because he has “retired and been reemployed by the same institution under a different retirement system,” within the meaning of the Department’s authorized RIF plan. It follows that in 1991 plaintiff was eligible under the RIF plan only for the six retention credits he was originally accorded, for his three years of continuous service since his 1988 election. Consequently, he has sustained no legal damage that was proximately caused by the absence of timely knowledge of his appeal rights stemming from the allegedly fraudulent alteration of documents in his personnel file. “This is to say that even [though] we assume that the plaintiff has alleged fraud and deceit, insofar as he attempts to allege an affirmative action for deceit, his [evidence], properly construed, merely [indicates] damnum absque injuria. See in this connection Johnson v. Giles, 69 Ga. 652, [654] and citations.” Gaultney v. Windham, 99 Ga. App. 800, 807 (3), 808 (109 SE2d 914). The trial court correctly granted partial summary judgment with respect to plaintiff Richard Reynolds’ claim of fraud in his termination under the RIF policy.

Judgment affirmed.

Ruffin, J, and Senior Appellate Judge Har old R. Banke concur.

Decided October 16, 1996.

Samuel W. Cruse, for appellant.

Michael J. Bowers, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, Dennis R. Dunn, Senior Assistant Attorney General, Rebecca S. Mick, Assistant Attorney General, for appellees.


text:
    A96A2130.
    BOOTH v. FIREMEN’S INSURANCE COMPANY OF NEWARK, NEW JERSEY et al.
    (477 SE2d 376)
   Eldridge, Judge.

Appellant Ronald Lynn Booth appeals from the granting of a motion for summary judgment in his suit against deputy sheriff William Dixon for breach of the conditions of Dixon’s sheriffs bond. Pursuant to OCGA § 45-4-26, appellant names as additional parties to this action the Sheriff of Richmond County and his surety. This case arose from the following set of facts:

. On February 24, 1992, appellant, an African/American man, was driving a black BMW on Wrightsboro Road in Augusta; Paul Ezernack, Jr., a Caucasian/American man who is not named in this action, was driving a red Ford S-10 pickup truck on Wrightsboro Road. The two men were traveling in the same direction, with appellant in the left lane and Ezernack in the right;, both were heading for a point on Wrightsboro Road where “merge” becomes the operative term, and the two lanes become one. Apparently, appellant and Ezernack were each aware of the presence of the other, but neither would give way. At the last minute,. Ezernack sped up and pulled in front of appellant’s vehicle. The effect of Ezernack’s actions upon appellant’s BMW has varied widely with the telling. However, the net result is not in dispute: appellant followed Ezernack home, parked his BMW, pulled out a .223 assault rifle, and entered Ezernack’s property. The two men had words. Thereafter, each man called the Richmond County Sheriffs Department from his home.

Paul Ezernack’s call to the Sheriff’s Department came in first, and Deputy Mark Bowen was dispatched to Ezernack’s home; Ezernack reported appellant for coming onto his property with a rifle. While taking the report from Ezernack, appellant’s call to the Sheriff’s Department came in; Deputy Bowen was then sent to appellant’s home to take his report. Appellant reported Ezernack for cutting him off on Wrightsboro Road; at the time, appellant made no reference to an accident or collision between the vehicles, nor did appellant claim that his vehicle had been run off the road.

Deputy Bowen was unsure about how to proceed with the information he had been given. From appellant’s house, Bowen telephoned defendant/appellee Deputy Sheriff William Dixon to ask for advice. Deputy Dixon was assigned to the violent crimes division of the Sheriff’s Department and was the violent crimes investigator on duty at the time. As part of his duties, Deputy Dixon neither investigated nor brought charges for traffic offenses. Deputy Bowen related the course of events to Dixon. During the conversation, Dixon inquired as to the race of the two subjects; thereafter, Deputy Dixon twice referred to the appellant by a vulgar racial epithet that does not bear repetition herein. In addition, the following conversation ensued: “[Bowen]: I’ll tell you what: Can I give you a number to talk to one of — talk to the other guy (Ezernack) and just see what all he says? And if you’ll call me on the radio and tell me where to go from there, I’ll do it. [Dixon]: Yeah. Give me the guy in the red truck’s name.”

Thereafter, Deputy Dixon did as Bowen had requested and called Ezernack. Dixon advised Ezernack that he needed to come in to the Sheriff’s Department to give a statement, which Ezernack did that evening. After taking Ezernack’s statement, Dixon asked him if he wished to press charges against appellant; Ezernack stated that he did wish to press charges. Deputy Dixon then conferred with Mary Kitchens in the Sheriff’s Department warrant division; after hearing the details of the incident, Ms. Kitchens advised that she would issue a warrant for appellant’s arrest for the offense of misdemeanor criminal trespass. Thereafter, Deputy Dixon answered another, unrelated call and left Ezernack to obtain the criminal warrant against appellant pursuant to Ezernack’s complaint. Ezernack filled out and signed the arrest warrant, and appellant was arrested by Sheriff’s Deputy Robert Harrison on Thursday, February 27, 1992, for the offense of criminal trespass; he posted bond almost immediately.

That same day, Deputy Dixon called appellant at home for an interview with regard to Ezernack’s complaint; that brief telephone call is the only contact between appellant and defendant/appellee Dixon. It was during this call two days after the incident that appellant first informed a law enforcement officer that Ezernack’s truck had actually struck appellant’s BMW.

Appellant then contacted Captain Richard Weaver from the Sheriff’s Department traffic division in order to report the accident which allegedly occurred during the incident with Ezernack. Captain Weaver and Deputy Bowen investigated appellant’s complaint, which investigation included repeated visual inspections of the two vehicles involved; no evidence of a collision between appellant and Ezernack’s vehicles could be found. It was Captain Weaver’s decision that insufficient probable cause existed to support the issuance of a warrant for the arrest of Paul Ezernack pursuant to appellant’s complaint.

Some days later, appellant discovered that the original telephone conversation between deputies Bowen and Dixon on the day of the incident had been recorded. The contents of the taped conversation revealed Deputy Dixon’s use of racial epithets, which prompted appellant to file a complaint with the Richmond County Human Relations Commission. In his complaint, appellant requested an apology from Deputy Dixon and that the criminal trespass charge against him be dropped. Thereafter, the criminal trespass charge against the appellant was nol prossed, and Deputy Dixon apologized to appellant. In addition, the Sheriff’s Department conducted an internal investigation of appellant’s complaint regarding Deputy Dixon. Through the investigation it was determined that Dixon’s use of racial slurs violated Rule 81-1.38(A) of the Sheriff’s Department Personnel Policies and Procedures; Deputy Dixon was suspended for thirty working days, six weeks, without pay.

1. Appellant contends that Deputy Dixon’s reference to appellant in racially offensive language during the course of an official conversation with another deputy was a violation of appellant’s Fourteenth Amendment rights under both the United States and Georgia Constitutions and was, thus, a breach of the conditions of Dixon’s deputy bond.

This Court abhors Deputy Dixon’s use of racial obscenities. “The factor of racial prejudice has been formally and officially squelched in our society after long and arduous struggles. Where it remains informally, it cannot be condoned.” Kornegay v. State, 174 Ga. App. 279, 282 (329 SE2d 601) (1985). However, our distaste for the deputy’s use of racial epithets and our empathy with appellant’s reaction upon discovering the contents of the taped conversation cannot relieve appellant of his burden to establish as a matter of law a permissible theory of recovery against the deputy’s bond. Thompson v. Huckabee Auto Co., 190 Ga. App. 540 (379 SE2d 411) (1989); Grossberg v. Judson Gilmore Assoc., 196 Ga. App. 107 (395 SE2d 592) (1990). “[T]here are certain unappealing aspects to suit on a [deputy’s] bond.” Thompson v. Spikes, 663 FSupp. 627, 642 (S.D. Ga. 1987). A suit on a deputy’s bond is an action in contract for the tortious acts of the deputy in the performance of his official duties. Thompson v. Spikes, supra. Because this cause of action is in contractu, it cannot be joined with a tort action against the deputy individually. Thompson v. Spikes, supra; Gay v. Healan, 88 Ga. App. 533 (77 SE2d 47) (1953). Moreover, acts deemed not to be official cannot form the basis for imposition of liability on the bonding company, and recovery is available only for those acts of the deputy that are performed by virtue of or under color of his office. Thompson v. Spikes, supra; Culpepper v. U. S. F. & G. Co., 199 Ga. 56 (33 SE2d 168) (1945); Johnson v. U. S. F. & G. Co., 93 Ga. App. 336 (91 SE2d 779) (1956).

In the case sub judice, the use of racial epithets, by itself, does not state a cause of action upon which recovery may be grounded since “name-calling” is not recognized as a tort under Georgia law. Bekele v. Ryals, 177 Ga. App. 445, 446 (339 SE2d 655) (1986). The fact that it was done by a deputy sheriff, while extremely disturbing, does not create an independent tort where one did not exist before.

Further, pretermitting the viability of a suit against Deputy Dixon, individually, for emotional distress caused to the appellant, Dixon’s use of racial slurs in his conversation with Deputy Bowen cannot be considered the type of “official act” performed under color of office that would permit recovery on Dixon’s bond; at the time of the telephone conversation, Deputy Dixon had no official business with appellant, nor did Dixon attempt to exercise toward him any official authority. Culpepper v. U. S. F. & G., supra at 58. “[W]e can not change the law on account of sympathy.” Watson v. Thompson, 185 Ga. 402, 406 (195 SE 190) (1938). Thus, this Court is constrained to find that Deputy Dixon’s use of racial epithets during his telephone conversation with Deputy Bowen, while deservedly punished by the Sheriff’s Department, does not give rise to a cause of action that would allow for a recovery on the deputy’s bond. OCGA § 45-4-24; Culpepper v. U. S. F. & G., supra at 58, 59; see Johnson v. U. S. F. & G, supra at 340. The trial court was correct in granting summary judgment on this ground.

2. Appellant next contends that Deputy Dixon breached the conditions of his bond by violating the Equal Protection Clauses of both the United States and Georgia Constitutions when Deputy Dixon failed to take a statement from or provide advice to appellant, a black man, while Dixon aided and advised Ezernack, a white man, in taking out a warrant against appellant.

An essential element in a cause of action against a deputy’s bond is the existence of a duty owed by the deputy toward the complainant. OCGA § 45-4-24; Culpepper v. U S. F. & G., supra. “There was here no breach of the bond unless the act which caused the injury was either a failure to perform an official duty, or the improper or negligent performance of a duty imposed by law.” Culpepper v. U.S.F. & G., supra at 58. Moreover, except where a special relationship exists, the deputy’s duty must run specifically to the complainant; “liability does not attach where the duty owed by the [deputy] runs to the public in general and not to any particular member of the public.” City of Rome v. Jordan, 263 Ga. 26, 27 (426 SE2d 861) (1993); Culpepper v. U. S. F. & G., supra at 59.

In the case sub judice, appellant failed to present any evidence to demonstrate a duty owed by Deputy Dixon to appellant so as to permit a recovery on Dixon’s bond based on a breach of that duty. Deputy Bowen was dispatched to appellant’s residence to handle appellant’s complaints, not Deputy Dixon. Further, Deputy Bowen and Captain Weaver investigated appellant’s belated contention that there was a collision between the two vehicles and took appellant’s statements thereon. There is simply no evidence from which one could conclude that Deputy Dixon ever had a duty to advise appellant or to take a statement from him. Deputy Dixon did not even handle traffic offenses; thus, his lack of participation in the investigation of appellant’s traffic-related complaint was irrelevant.

In addition, there is nothing in the record to support appellant’s contention that Deputy Dixon chose to aid and advise Ezernack in obtaining an arrest warrant for appellant because Ezernack is a white man and appellant is a black man. The record shows that Deputy Dixon did not “select” between the two men; Deputy Bowen asked Dixon to deal with Ezernack’s complaint. Further, the evidence demonstrates that Ezernack, not Dixon, made the decision to press charges against the appellant and pursued that avenue; Deputy Harrison, not Dixon, arrested appellant; Captain Weaver, not Dixon, decided that an arrest warrant should not issue for Paul Ezernack.

Appellant has failed to offer any evidence that Deputy Dixon had a duty under the law that ran specifically to appellant, which is an essential element in a cause of action against a deputy’s bond. In a motion for summary judgment “if there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Thus, the trial court’s granting of appellee’s motion for summary judgment was correct.

Judgment affirmed.

Beasley, C. J, and Blackburn, J., concur.

Decided October 16, 1996.

Craig T. Jones, for appellant.

Burnside, Wall, Daniel, Ellison & Revell, James W. Ellison, for appellees.

       To the initial reporting officer, appellant claimed Ezernack cut in front of him and caused his BMW to skid, with no mention of contact between the vehicles; to deputy Dixon, appellant claimed that Ezernack’s truck hit appellant’s BMW; to a newspaper reporter, appellant claimed that Ezernack’s actions caused appellant’s BMW to strike the truck; to Captain Weaver, appellant claimed that Ezernack managed to pull in front of his BMW, and he was not sure if the two vehicles had collided or not; to the 911 operator, appellant claimed Ezernack tried to run his BMW off the road; before this Court, appellant claims Ezernack did run his BMW off the road.

       According to appellant,- the conversation was recorded accidentally by his three-year-old son who had been playing with the answering machine.


text:
    A96A2296.
    CANNON v. THE STATE.
    (477 SE2d 381)
   Eldridge, Judge.

Appellant appeals his conviction for aggravated assault following a jury trial. Held:

1. In the first enumeration of error, appellant asserts that the evidencé presented at trial was insufficient as a matter of law to find him guilty of aggravated assault. OCGA § 16-5-20 (a) defines the crime of assault as when a person “either: (1) [ajttempts to commit a violent injury to the person of another; or (2) [cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” Further, OCGA § 16-5-21 (a) (2) defines aggravated assault as an “assault ... (2) [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury. . . .”

Under Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979), the sufficiency of the evidence is measured by determining “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

In the case sub judice, evidence was introduced that appellant threw an object at the victim’s car, pointed a loaded sawed-off shotgun at the victim’s head, threatened to kill him, and shot at and hit the car as the victim raced away. Appellant points to evidence that supposedly supports his insufficient evidence argument: testimony by two witnesses,, as well as the appellant, that placed appellant inside a friend’s home at the time of the incident, and the attempted impeachment of one of the State’s witnesses. However, it is solely within the purview of the jury to weigh conflicting evidence and judge the credibility of the witnesses. OCGA § 24-9-80; Robinson v. State, 203 Ga. App. 759, 760 (417 SE2d 404) (1992). Looking at the evidence in the light most favorable to the verdict, we hold that there was sufficient evidence for a rational trier of fact to find appellant guilty of the crimes beyond a reasonable doubt.

2. In the second enumeration of error, appellant claims that the trial court erred in instructing the jury on both OCGA § 16-5-20 (a) (1) and (a) (2), alleging that only the “reasonable apprehension” language was included in the indictment. The indictment charged that appellant “did unlawfully make an assault upon the person of [the victim] with a certain sawed-off shotgun, a deadly weapon, by pointing said shotgun at [the victim], by threatening to kill [the victim] and firing said shotgun at the car operated by [the victim], thereby placing [victim] in reasonable apprehension of immediately receiving a violent injury. . . .”

The plain language of the indictment is sufficient to allege that appellant either attempted to commit a violent injury or placed the victim in reasonable apprehension of such injury. See Jordan v. State, 214 Ga. App. 598, 601 (448 SE2d 917) (1994); Davis v. State, 214 Ga. App. 360 (448 SE2d 26) (1994). Therefore, there was no error in the trial court’s charge to the jury on both subsections of OCGA § 16-5-20 (a).

3. Finally, appellant asserts that the trial court erred when it encouraged a juror to continue deliberations after the juror expressed concerns about whether the fact that she worked at the same place as appellant was a conflict; she also mentioned that she was the only “deadlocked” juror, and felt as though she was holding the other jurors back from reaching a verdict. The appellant charges that such encouragement, after an hour of deliberations, constituted improper coercion of the juror.

The test for determining whether a jury instruction is coercive is whether it will “cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.” McMillan v. State, 253 Ga. 520, 523 (322 SE2d 278) (1984). There is no evidence of coercion in the case sub judice. The trial court addressed the juror’s concerns and suggested that she keep trying to reach a verdict with the other jurors, without inferring that she would be kept indefinitely until a verdict was reached. Compare Sanders v. State, 162 Ga. App. 175 (290 SE2d 516) (1982).

Ironically, since this juror was apparently the only juror to believe appellant was not guilty as charged, there may have been reversible error if the trial court had excused the juror from service without legal justification. See Peek v. Kemp, 784 F2d 1479 (11th Cir. 1986), cert. denied, 479 U. S. 939 (107 SC 421, 93 LE2d 371) (1986); see also Wilson v. State, 220 Ga. App. 487 (469 SE2d 516) (1996). However, there was no error in the trial court’s response toward this juror in the case sub judice.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

Decided October 16, 1996.

Garcia & Powell, Ralph W. Powell, Jr., for appellant.

Harry N. Gordon, District Attorney, for appellee.