text:
    A91A0767.
    BROOMBERG et al. v. HUDGENS et al.
    (426 SE2d 617)
   Carley, Presiding Judge.

Seeking to recover for injuries sustained as the result of her slip and fall, appellant-plaintiff and her husband filed the instant action against appellee-defendants. Appellees filed separate motions for summary judgment and, relying upon Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), they urged that certain testimony given by appellant in the instant tort action did not comport with the testimony that had been given by her in a previous workers’ compensation proceeding. Appellees’ motions were granted and appellants appealed. We reversed because the “self-contradictory testimony” rule had previously been limited to a consideration of such testimony as had been given within the parameters of a single proceeding and the Supreme Court had not intimated in Prophecy Corp. that that limitation was no longer viable. “ ‘The conflicts alleged here by (appellees) were as to (purportedly) conflicting testimony given on previous occasions (other than in the instant case).’ [Cit.]” Broomberg v. Hudgens, 201 Ga. App. 524, 525 (411 SE2d 521) (1991). On certiorari, however, the Supreme Court reversed, concluding that Prophecy Corp. “does not contain the limitation applied by the Court of Appeals. . . .” Hudgens v. Broomberg, 262 Ga. 271, 272 (3) (416 SE2d 287) (1992). The instant case is now before this court pursuant to the remand of the Supreme Court to take such further action as may be necessary.

1. The prior judgment of this court holding that there is a limitation on the applicability of Prophecy Corp. is vacated and the judgment of the Supreme Court holding that there is no such limitation is hereby made the judgment of this court. Although the Supreme Court did not indicate which prior holdings it considered to have been overruled by Prophecy Corp., we would note for the benefit of the bench and bar that a list of such overruled cases would apparently include: Renew v. Edenfield, 200 Ga. App. 484, 486 (3) (408 SE2d 499) (1991); Slaton Machine Sales v. Owens-Ill., 138 Ga. App. 80, 82 (3) (225 SE2d 473) (1976); and, Branan v. LaGrange Truck Lines, 94 Ga. App. 829, 846 (3) (96 SE2d 364) (1956).

2. We turn to the issue of whether, under Prophecy Corp. as interpreted by the Supreme Court, appellees were entitled to summary judgment based upon appellant’s alleged self-contradictory testimony. The initial determination must be whether appellant’s testimony was self-contradictory.

According to the allegations of the complaint in the instant case, the dangerous condition which caused the slip and fall was a smooth concrete floor which was slippery because it was wet from a recent mopping. Accordingly, this is not a foreign substance case, but a damp and slippery mopped floor case. Alterman Foods v. Ligon, 246 Ga. 620, 623-624 (272 SE2d 327) (1980). Consistent with the complaint, appellant gave testimony in the instant case to the effect that she had fallen because the floor was wet. Appellees urge, however, that this testimony attributing her fall to the wetness of the floor is not consistent with her testimony in the prior workers’ compensation proceeding, wherein she had not mentioned the wetness of the floor and had given a negative response when asked if she had fallen “on anything in particular.”

There is no inconsistency whatsoever between appellant’s prior and instant testimony when it is recognized that this is not a foreign substance case. It is entirely consistent for appellant to have testified in the workers’ compensation case that she did not fall “on anything in particular,” but to testify in the instant case that she nevertheless did slip on an unobstructed floor which was extremely slippery because it had recently been mopped and was wet.

Moreover, appellees were not parties to the workers’ compensation proceeding and the sole issue therein was whether appellant had suffered a work-related injury. Accordingly, the question that was asked of appellant in that proceeding could reasonably have been constructed as a limited inquiry concerning the nature of her injury and whether, when she slipped, she had fallen on and injured any “particular” part of her body. Appellant indicated that she had construed the question as just such an inquiry and that her negative response meant only that, when she had slipped on the wet floor, she had fallen on and injured no “particular” portion of her body more than any other.

Appellees urge the existence of another inconsistency because, in the workers’ compensation proceeding, appellant had also been asked: “Did you notice anything on the floor there?” Her response was: “It’s just real slick. It always is.” Appellees urge that, by failing to specify that the floor was slippery because it was wet, appellant’s prior testimony is not consistent with her instant testimony attributing her fall to the wetness of the floor.

Again, however, it must be recognized that this is not a foreign substance case and that the question did not specifically ask appellant whether she had noticed anything on the floor after she had fallen. Accordingly, the question can readily be construed as an inquiry concerning appellant’s observations before she fell and her response as indicating that she had seen no foreign substance, but had been crossing an unobstructed concrete floor which, in her experience, is always slick to some degree. Thus, there would be no inconsistency with her testimony in the instant case attributing her fall to a floor which had been rendered even more slippery because it was wet. Her prior testimony would merely negate a foreign substance as the cause of her fall, whereas her instant testimony would establish a wet floor as the cause.

Moreover, even if the question is construed as an inquiry concerning appellant’s observations after she fell, her response in the workers’ compensation proceeding would still not be inconsistent with her instant testimony. In the workers’ compensation proceeding, appellant was never asked to specify why it was that she considered the floor to be slippery. It was only in the instant case that appellant was asked to specify the exact cause of her fall and she testified that she fell on a floor which was slippery because it was wet. Her prior testimony would merely indicate the general existence of a slippery floor, whereas her instant testimony would elaborate and identify wetness as the specific source of the slipperiness which caused her to fall.

It is clear that appellant has always maintained that she fell as the result of crossing a slippery floor and has never denied that the floor was wet. Compare McConnell v. Winn-Dixie Atlanta, 194 Ga. App. 700 (391 SE2d 785) (1990); Boyd v. Garden Center, 197 Ga. App. 198 (397 SE2d 626) (1990). The instant case is the first instance in which the liability of appellees, has ever been an issue and there is no inconsistency merely because appellant has never previously identified wetness attributable to appellees as the specific source of the slipperiness of the floor and the proximate cause of her fall. Under the new rule adopted by the Supreme Court in Broomberg v. Hudgens, supra, the context and nature of the proceeding in which the prior testimony was given must be considered in determining whether that prior testimony is inconsistent with that given in the instant proceeding. Considering the non-negligence oriented context and the perfunctory nature of the questions posed to appellant in the prior workers’ compensation proceeding, there was no inconsistency between appellant’s testimony therein and her testimony in the instant case.

3. “The slip and fall cases involving foreign substances are inapplicable in an instance where the plaintiff alleges that he fell because of the slippery wax, oil or other finish that defendant placed on the floor. Because the defendant applied or authorized the application of the floor treatment, he is presumed to have knowledge of its existence. [Cit.]” Alterman Foods v. Ligón, supra at 623-624. Accordingly, appellees’ knowledge of the alleged wetness of the floor is presumed and they would not be entitled to summary judgment unless the evidence shows that no genuine issue of material fact remains as to appellant’s equal knowledge of the wetness and whether, in the exercise of ordinary care, she could have avoided it. See Carlo v. Americana Healthcare Corp., 179 Ga. App. 678, 681 (2) (347 SE2d 282) (1986); Grier v. Jeffco Mgmt. Co., 176 Ga. App. 158 (335 SE2d 408) (1985).

Decided December 2, 1992 —

Reconsideration denied December 17, 1992

J. Carol Sherwood, Jr., for appellants.

Dillard, Landers & Bower, Daniell S. Landers, Bryant H. Bower, Jr., Robert W. Lamb, Young, Clyatt, Turner, Thagard & Hoffman, James B. Thagard, for appellees.

Construing the evidence most favorably for appellant shows the following: She had crossed the concrete floor previously and knew that it was slippery even when dry. She had also previously crossed the concrete floor when it was wet. On those prior occasions when the floor was wet, however, there had been warning signs. On the day of her fall, there was no warning sign and, before she fell, she could not see that the floor was wet. It was only after she had fallen that she realized that the floor was wet. Clearly, on this evidence a genuine issue of material fact remains as to appellees’ liability. Barry v. J. C. Penney Co., 159 Ga. App. 587 (284 SE2d 91) (1981). Compare Adams v. Winn-Dixie Stores, 192 Ga. App. 892 (386 SE2d 686) (1989) and Alterman Foods v. Munford, 178 Ga. App. 214 (342 SE2d 480) (1986) (wherein “wet floor” signs were posted to warn of the presence of a foreign substance not intentionally placed on the floor by the defendants).

Judgments reversed.

Beasley and Cooper, JJ., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A92A0823.
    BROWN v. THE STATE.
    (427 SE2d 9)
   Andrews, Judge.

Tim Brown shot and killed Terri Brown, his estranged wife, and Gary Sentell. He was charged with murder and convicted by a jury of two counts of voluntary manslaughter. At trial, Brown claimed he was legally insane when he shot the two. His sole enumeration of error on appeal is that the trial court erred by allowing the State’s expert psychiatrist to render an opinion as to his sanity which was improperly based on hearsay.

To refute expert psychiatric testimony presented in support of Brown’s insanity defense, the State presented testimony from a psychiatrist who examined Brown and stated that in his opinion Brown was not legally insane at the time of the shootings. The State’s expert formed his opinion based on his own personal observations of the defendant, and on the conclusions reached by a psychologist who, at the request of the State’s expert, personally administered and interpreted a battery of psychological tests given to the defendant to determine the existence of any mental illness, personality disorder, or organic brain disorder. The psychologist did not testify at trial, nor were the test results and conclusions drawn by the psychologist otherwise made a part of the trial record.

Generally, an expert cannot state his opinion based upon facts not within his personal knowledge which are not otherwise admitted in evidence. Stouffer Corp. v. Henkel, 170 Ga. App. 383, 386 (317 SE2d 222) (1984). In response to a hypothetical question, an expert may assume facts not within his personal knowledge, as long as the assumed facts are placed in evidence by the testimony of other witnesses or by other legal means. Daniel v. Parkins, 200 Ga. App. 710, 711 (409 SE2d 233) (1991). “On the other hand, an expert can give an opinion based upon facts which he personally observes. And where an expert personally observes data collected by another, his opinion is not objectionable merely because it is based, in part, upon the other’s findings.” (Citations and punctuation omitted.) Westbrook v. State, 186 Ga. App. 493, 496 (368 SE2d 131) (1988). Here, the State’s expert psychiatrist had no involvement in the administration of the tests by the psychologist. Moreover, the record does not-reflect that the opinion of the State’s expert could be based solely on his personal observations or other facts in evidence. Rather, the record shows that the State’s expert considered the conclusions drawn by the psychologist as an integral part of formulating his opinion. Compare Taylor v. State, 174 Ga. App. 900, 901 (331 SE2d 920) (1985) (expert’s opinion independently based upon tests personally performed by the expert was properly admitted even though the expert testified that his opinion was also based on a test performed by someone else).

“It is the rule in Georgia that the opinion of an expert witness on the sanity of a person must be based on his own observation of facts personally known to him, or he must give his opinion on hypothetical questions based on facts supported by evidence in the case. . . . [The expert] may give an opinion based upon his own examination of a person, upon his observation of that person, or upon any state of facts, supported by some evidence in the case, which he assumes as true.” Moore v. State, 221 Ga. 636, 643 (146 SE2d 895) (1966). “An expert may give an opinion upon the facts testified to by other witnesses, but not upon their opinions. A witness’ opinion must be his own and he cannot act as a mere conduit for the opinions of others.” (Emphasis in original. Citations and punctuation omitted.) Hyles v. Cockrill, 169 Ga. App. 132, 134 (312 SE2d 124) (1983); Sapp v. Kitchens, 124 Ga. App. 764, 765 (186 SE2d 121) (1971) (expert may not testify as to the composite opinion of himself and his associate); compare Life Ins. Co. of Ga. v. Dodgen, 148 Ga. App. 725, 729-730 (252 SE2d 629) (1972) (where opinion of one expert is made part of trial record, it is permissible for another expert witness to consider that opinion in reaching his own conclusions). In the instant case, the opinion of the psychologist drawn from the test results was not a part of the record in the case, and it is clear the State’s expert psychiatrist based his own opinion, at least in part, on the psychologist’s opinion. Hyles, supra at 134. To the extent the State’s expert relied upon the opinion of another expert not before the court, his testimony was inadmissible hearsay without probative value even in the absence of an objection. Mallard v. Colonial Life & Accident Ins. Co., 173 Ga. App. 276 (326 SE2d 6) (1985). Since the opinion evidence based on hearsay concerned a critical issue in the case — Brown’s main defense that he was insane at the time of the shootings — we cannot say the erroneous admission of this testimony was harmless. Moore, supra at 645.

Decided November 23, 1992 —

Reconsideration denied December 17, 1992

Cook & Palmour, Bobby Lee Cook, Kristina C. Connelly, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, for appellee.

Judgment reversed.

Birdsong, P. J., and Beasley, J., concur.

       The testimony at issue was introduced, by agreement of the parties, in a videotaped deposition of the State’s expert. Although no objections were made when the deposition was shown at trial, the defendant made specific hearsay objections to the relevant portions of the deposition at a pre-trial hearing at which the court deleted portions of the deposition testimony, but denied defense motions to delete other portions relating to the expert’s opinion as to sanity. Since the court, in effect, denied a defense motion in limine seeking exclusion of the opinion testimony, no objection was necessary to preserve the issue for review. Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284 (260 SE2d 20) (1979); Gielow v. Strickland, 185 Ga. App. 85, 86 (363 SE2d 278) (1987).


author: Cooper, Judge.

text:
    A92A0860.
    STANDARD GUARANTY INSURANCE COMPANY v. LANDERS.
    (426 SE2d 574)
   Cooper, Judge.

This appeal arises out of an automobile accident which óccurred when appellee’s vehicle was rear-ended at a traffic signal by a car driven by Anthony Boynton and owned by his father Edward Boynton. The Boynton vehicle had no liability insurance coverage, but appellee’s car was insured by appellant Standard Guaranty Insurance Company (“Standard”) under a policy providing uninsured motorist coverage.

The record setting out the procedural history of this case is meager, but it appears that appellee originally filed a lawsuit against Anthony and Edward Boynton in December of 1987. In addition to serving the Boyntons, appellee served Standard as the uninsured motorist carrier. The return of service indicates that service upon Standard was made by serving David Morris, President, Morris Insurance Plan, Inc. Standard answered the complaint in its own name and filed a cross-claim against the Boyntons. In September 1988, appellee dismissed the case without prejudice, and on October 6, 1988, appellee refiled the case against the Boyntons. Although appellee did not denominate the action as a renewal action, the complaint was exactly the same except that the amount of damages was increased. Appellee again served the complaint on Standard by serving David Morris, president of Morris Insurance Plan, Inc. Standard filed an answer and cross-claim against the Boyntons and a “Motion to Quash Void Service” on the ground that it had not been properly served. Specifically, Standard alleged that service was invalid because its registered agent had not been properly served in the refiled lawsuit and because David Morris was not an agent authorized to accept service. The record contains an order dated February 1, 1989, which denies Standard’s motion to quash. Standard subsequently filed a motion to dismiss on the ground that the action was barred by the two-year statute of limitation. Although the record contains an order prepared, presented and filed by Standard’s counsel which purports to grant Standard’s motion, it appears that Standard prepared a pre-trial order and participated in the trial of the case. Boynton also appeared and was represented by separate counsel. Throughout the trial Standard objected that it was not properly before the court, was not waiving any prior orders or defenses, and renewed its motion to dismiss based on insufficiency of service. The jury returned a verdict in favor of appellee for $20,000, and appellant appeals from the judgment entered on the verdict and the denial of its motion for new trial and motion for judgment n.o.v.

1. OCGA § 33-7-11 (d) provides, in pertinent part, that “[i]n cases where the owner or operator of any vehicle causing injury or damages is known, and either or both are named as defendants in any action for such injury or damages, a copy of the action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though the insurance company were actually named as a party defendant.” Under OCGA § 9-11-4 (d) (1) and (7), in actions against a corporation service shall be made by delivering the summons and a copy of the complaint “to the president or other officer of the corporation, secretary, cashier, managing agent, or other agent . . . authorized by appointment or by law to receive service of process.”

The return of service from the original action shows that Standard was served by serving David Morris, president of Morris Insurance Plan, Inc. In support of its motion to dismiss filed in the second case, Standard presented the affidavit of David Morris declaring that he was an insurance broker who placed business with a number of companies, including Standard, but was not an officer, employee or agent of Standard and not authorized to accept service of process on behalf of Standard. It further showed that on the date of service, Howard Wexler was the agent for service for Standard and was located in Fulton County, but neither he nor anyone authorized by him was ever served.

It is clear that Standard was not served in the manner required under the statute. “Service of process on merely an apparent agent is not sufficient. It must be made on an actual agent. The bare assertion or denial of the existence of an agency relationship is a statement of fact when made by one of the purported parties to the relationship; but when made by an outsider, bare assertions or denials are merely conclusions of law. The affidavit denying the existence of agency must be received as evidence of a fact, which cannot be overcome by conclusionary affidavits. Thus contrary to [appellee’s] contentions, the denial by [Morris], the purported ‘agent,’ was evidence of the fact that no agency relationship existed between himself and [Standard]. . . . The alleged agent’s denial of an agency relationship not having been opposed with credible contentions supporting such a relationship, the [failure to grant] the motion to dismiss was ... error.” (Citations and punctuation omitted.) Thaxton v. Ga. Insurer’s Insolvency Pool, 158 Ga. App. 407, 408-409 (280 SE2d 421) (1981). Accord Kirkpatrick v. Mackey, 162 Ga. App. 876 (293 SE2d 461) (1982). Having established that Standard did not receive service as required by the statute in either the original or renewal action, Standard’s motion to dismiss for insufficiency of service should have been granted. Bohannon v. Futrell, 189 Ga. App. 340, 343 (2) (375 SE2d 637) (1988); Kirkpatrick v. Mackey, supra.

Decided October 28, 1992 —

Reconsideration denied December 17, 1992

Eason, Kennedy & Associates, Richard B. Eason, Jr., for appellant.

L. B. Kent, for appellee.

2. In light of our decision in Division 1, it is unnecessary to consider appellant’s remaining enumerations of error relating to matters which occurred during the trial.

Judgment reversed.

Sognier, C. J., and McMurray, P. J., concur.

       Although the civil action number on the order reflects that it was entered in the original case, we assume that this was an oversight inasmuch as no motion to quash appears to have been filed in the original action and since it appears that the order was filed after the dismissal without prejudice of the original action.

       We are at a loss to explain the order dismissing the action as to Standard. However, we note that it appears that the trial judge inadvertently entered the order and was not aware of the order previously entered denying Standard’s motion to quash servicte. As noted in footnote 1, the order denying the motion to quash reflected the incorrect civil action number, thus explaining how the trial judge could have been unaware of the order.


author: Carley, Presiding Judge. Pope, Judge,

text:
    A92A0839.
    DEPARTMENT OF HUMAN RESOURCES v. AMMONS.
    (426 SE2d 901)
   Carley, Presiding Judge.

In 1979, a juvenile court ordered the termination of appellee-defendant’s parental rights as to his daughter. Subsequently, appellant-plaintiff Georgia Department of Human Resources (DHR) provided public assistance benefits to the child. Pursuant to OCGA § 19-11-1 et seq., DHR brought the instant action, seeking to recover the amount of those benefits from appellee. Appellee answered and raised as a defense the previous judicial termination of his parental rights. After conducting a hearing, the trial court denied DHR’s claim and it appeals.

1. The termination of appellee’s parental rights would not terminate the parent-child relationship itself and would not affect any rights and obligations as between a third party and the child, in her capacity as appellee’s daughter. Menard v. Fairchild, 254 Ga. 275, 277 (1) (328 SE2d 721) (1985). It would, however, terminate “all [appellee’s] rights and obligations with respect to the child and all rights and obligations of the child to [appellee] arising from the parental relationship. . . .” OCGA § 15-11-80. Support is an obligation appellee would owe to his child and a right of the child arising from the parental relationship. Accordingly, that obligation on the part of appellee and right in behalf of his child were extinguished by the termination order, as surely as if the child had been adopted. The parent-child relationship remains intact, but the obligation and right of support which is otherwise predicated on that relationship has been terminated.

It is immaterial that it is DHR, rather than appellee’s child, that seeks to enforce appellee’s obligation of support. “The payment of public assistance to or on behalf of a child creates a debt due and owing the state by the parent . . . responsible for the support of the child.” (Emphasis supplied.) OCGA § 19-11-5. As the result of the termination order, appellee is not a parent who is responsible for the support of his child. “Whenever any dependent minor child is receiving public assistance, [DHR] may recover any sum of money due the dependent child. The action shall be brought in the name of the child for the use of [DHR].” (Emphasis supplied.) OCGA § 19-11-7 (a). As the result of the termination order, appellee’s child is owed no support from appellee. It is, therefore, clear that if the child has no claim for support, neither does DHR.

2. DHR urges that the termination order is void and should, therefore, constitute no bar to its claim. See OCGA § 9-11-60 (a). “A judgment is void on its face when ‘there is a non-amendable defect appearing on the face of the record or pleadings which is not cured by verdict or judgment and the pleadings affirmatively show that no legal claim in fact existed.’ [Cit.]” Lawing v. Erwin, 251 Ga. 134, 135 (303 SE2d 444) (1983).

Contrary to DHR’s contentions, this is not a case wherein appellee “contracted” with the child’s mother in an attempt to retain his parental rights while foregoing his parental financial responsibilities. Compare Department of Human Resources v. Prince, 198 Ga. App. 329, 330 (2) (401 SE2d 342) (1991); Collins v. Collins, 172 Ga. App. 748 (324 SE2d 475) (1984); Crumb v. Gordon, 157 Ga. App. 839, 841 (2) (278 SE2d 725) (1981). It is a case wherein appellee’s parental rights were terminated by court order and, pursuant to OCGA § 15-11-80, the legal effect of that court order was to terminate “all [appellee’s] rights and obligations with respect to the child. . . .” (Emphasis supplied.) The termination proceeding was not instituted by appellee, but by the child’s mother. The termination order discloses that, pursuant to OCGA § 15-11-81 (b) (1), it was validly based upon appellee’s written consent to the termination petition that had been filed by the child’s mother. Compare In re K. L. S., 180 Ga. App. 688 (350 SE2d 50) (1986). To hold, as DHR suggests, that the instant termination order is void would be to hold that OCGA § 15-11-81 (b) (1) has no effect and that any and all termination orders based upon the written consent of the parent are void. We cannot declare OCGA § 15-11-81 (b) (1) unconstitutional and we cannot ignore its clear mandate. A termination order based upon the written consent of the parent does not evince a “non-amendable defect,” because such an order is specifically authorized by OCGA § 15-11-81 (b) (1). Compare Department of Human Resources v. Prince, supra; In re K. L. S., supra; Collins v. Collins, supra; Crumb v. Gordon, supra. Such an order is not rendered void simply because its legal effect is to terminate all parental rights and obligations, including the obligation to support.

DHR further urges that the termination order is void for lack of representation of appellee’s child by a guardian in the termination proceedings. OCGA § 15-11-85 (a) mandates that an attorney “shall” be appointed to represent the child in termination proceedings, but it provides only that a guardian “may” be appointed. In any event, the provisions of OCGA § 15-11-85 would be applicable if the instant case were a direct appeal from the termination order itself. See In re L. L. B., 256 Ga. 768 (353 SE2d 507) (1987); In re J. S. C., 182 Ga. App. 721, 722 (1) (356 SE2d 754) (1987). However, the instant case concerns DHR’s collateral attack upon a termination order that was entered in 1979, some seven years before OCGA § 15-11-85 even became effective. Obviously, DHR cites no authority for the proposition that an order entered in 1979 evinces a “non-amendable defect” and is void under OCGA § 9-11-60 (a) because it does not recite adherence to a statutory provision which would not be enacted until some seven years in the future.

DHR urges that even under OCGA § 15-11-55, the statute which was applicable in termination proceedings in 1979, appointment of a guardian was mandated. By its terms, however, OCGA § 15-11-55 does not specifically require the appointment of a guardian in every termination case. Compare Lockhart v. Stancil, 258 Ga. 634 (373 SE2d 355) (1988) (juvenile court jurisdiction over issues of custody and support always dependent upon proper order of transfer from superior court). The termination proceeding at issue in the instant case was bought by the child’s mother, the natural guardian of the child, and appellee, the other natural guardian of the child, gave his written consent to the termination. Under these circumstances, there is considerable doubt whether OCGA § 15-11-55 would have any applicability whatsoever. Cf. Jordan v. Goff, 160 Ga. App. 636 (1) (287 SE2d 640) (1981) (no appointment of guardian necessary in non-termination case where the child is represented by his natural guardian). Compare In re J. S. C., supra at 723 (1) (wherein the child already had an appointed guardian, the termination proceeding was not brought by the child’s mother, the child’s father opposed the termination and, as “[b]etween the two antagonistic parties,” the child had no one who represented her interests). In any event, the lack of representation of appellee’s child by a guardian in the termination proceeding does not appear on the face of the record or pleadings. Moreover, even if the lack of such representation did appear on the face of the record or pleadings, the termination order would not be void and subject to DHR’s collateral attack in the instant proceeding. 43 C.J.S. Infants, § 224.

Judgment affirmed.

Sognier, C. J., Birdsong, P. J., Beasley, Andrews and Johnson, JJ., concur. McMurray, P. J., Pope and Cooper, JJ., dissent.

Pope, Judge,

dissenting.

I dissent. This court previously has held that a parent should not be able to avoid support obligations to a minor child by voluntary agreement with the other parent or custodian of the child, see Department of Human Resources v. Prince, 198 Ga. App. 329, 331 (401 SE2d 342) (1991); Collins v. Collins, 172 Ga. App. 748, 749 (324 SE2d 475) (1984); Crumb v. Gordon, 157 Ga. App. 839, 841 (2) (278 SE2d 725) (1981); or by relinquishing parental rights, see In re K. L. S., 180 Ga. App. 688 (350 SE2d 50) (1986). The mother filed the petition to terminate the parental rights of appellee based on a “contract” signed by him in which he voluntarily relinquished his parental rights. In its order, the juvenile court stated as its sole basis for the termination of appellee’s parental rights that he had consented to the termination. Although the court was authorized to terminate the parental rights of a parent based on written consent of that parent acknowledged before the court, OCGA § 15-11-51 (a) (3) repealed by Ga. L. 1986, p. 1017, éffective July 1, 1986, and recodified at OCGA § 15-11-81 (b) (1), this court has held “that the statutory authority of the juvenile court to entertain petitions to terminate parental rights does not extend to petitions by parents seeking judicial imprimatur of their own, voluntary abandonment of parental responsibility.” In re K. L. S., 180 Ga. App. at 689. Although the termination petition in this case was not brought by the “consenting” parent, as was the situation in In re K. L. S., the only basis shown for the petition brought by the mother was the father’s consent. It is thus plain that the father was not “consenting” to the termination, rather he was providing the basis for the termination by consenting thereto prior to the action by the mother in filing the petition. Consequently, the natural parents of the minor child in this case, because they acted in concert, accomplished by way of termination proceedings what they could not do by contract or divorce decree, to wit, eliminated the father’s obligation to support his minor child. Consequently, I believe the order terminating the appellee’s parental rights was void, see OCGA § 9-11-60 (a), and the lower court should have so found in the present proceedings. Accord Collins v. Collins, supra.

I also believe the juvenile court’s failure to appoint a guardian ad litem to represent the interest of the child during the original termination proceedings requires that the termination order be set aside. At the time the termination petition was filed by the mother in this case the juvenile court was required to appoint a guardian ad litem “where the interests of parent and child conflict,” Dawley v. Butts County Dept. of Family &c. Svcs., 148 Ga. App. 815, 816 (253 SE2d 235) (1979). In my opinion a conflict between the interest of the parent and child is shown as a matter of law where, as here, one parent has petitioned to terminate the parental rights of the other natural parent. “Here, the best interests of the child may or may not have been served by termination of the father’s rights; that was the primary issue. [The child’s mother], by initiating termination proceedings, had de facto taken the position of advocate for ending the father’s parental rights. ... If the advocate for termination is permitted to be the advocate for the child, there is nothing for the court to decide, insofar as the third-party child is concerned, for the former has already decided that the best interests of the child will be served by termination. Between the two antagonistic parties is the child, who as we read OCGA § 15-11-55 must have a separate representative.” In re J. S. C., 182 Ga. App. 721, 723 (356 SE2d 754) (1987).

Furthermore, OCGA § 15-11-85 (a), effective July 1, 1986, provides that an attorney must be appointed to represent the child as his counsel in all termination proceedings and Rule 11.8 of the Uniform Juvenile Court Rules requires the juvenile court to appoint a guardian ad litem to represent the interests of the child in all such proceedings. “ ‘(A) reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that was correct at the time it was rendered and affirm a judgment that was erroneous at the time, where the law has been changed in the meantime and where such application of the new law will impair no vested right under the prior law.’ [Cits.]” In re L. L. B., 256 Ga. 768 (353 SE2d 507) (1987). See also In re J. S. C., 182 Ga. App. at 723. In In re L. L. B., our Supreme Court held that the provisions pertaining to termination proceedings which became effective July 1, 1986, including the provision requiring appointment of an attorney to represent the child, could be applied to termination proceedings which were originally brought and decided under the prior law. In any event, under either the then-existing law or the present statutory scheme the child’s interests should have been represented; consequently, I believe the prior termination order was void and should not bar the recovery of the benefits paid on the child’s behalf.

I am authorized to state that Presiding Judge McMurray and Judge Cooper join in this dissent.

Decided September 8, 1992 —

Reconsideration denied December 17, 1992

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellant.

McDonald, Kinnamon & Thames, E. Crawford McDonald, for appellee.


author: Birdsong, Presiding Judge.

text:
    A92A1029.
    JACKSON et al. v. NATIONWIDE CREDIT, INC.
    (426 SE2d 630)
   Birdsong, Presiding Judge.

Myron Jackson, Vanessa Quinn, and Stuart Ostrow appeal from the grant of summary judgment in favor of Nationwide Credit, Inc. on their counterclaims against Nationwide for breach of contract, intentional infliction of emotional distress, invasion of privacy, tortious interference with contract and business relations, and sexual harassment.

Nationwide is a collection agency and appellants are its former employees who collected delinquent government-backed student loans for the U. S. Department of Education (“DOE”). Nationwide originally filed this case seeking to enjoin appellants from using or revealing its trade secrets and to enjoin continuing employment with Nationwide’s competition which was allegedly in violation of covenants not to compete.

The events giving rise to the litigation began when Nationwide offered its employees $100 as consideration for signing covenants not to compete as a condition of employment. When appellants Quinn and Ostrow refused to sign the agreements, their employment terminated and they were immediately escorted from the building. Appellant Jackson signed the covenant and continued working, but his employment was terminated when he did not report to work for two consecutive days.

After their employment with Nationwide ended, all appellants began working for one of Nationwide’s competitors. Moreover, appellant Jackson was working as a collector of DOE loans. When Nationwide learned of this, it advised the competitor of the problem as Nationwide perceived it, and discussed a potential lawsuit if appellants continued to work for the competitor. When that approach was unavailing, Nationwide sought and obtained a TRO against appellants. The TRO, however, was subsequently dissolved when the covenant not to compete was found too indefinite in time and geographic scope. Thereafter, Nationwide dismissed its trade secret claim, and the only claims remaining were appellants’ counterclaims against Nationwide.

Subsequently, the trial court granted Nationwide’s motion for summary judgment primarily because appellants were employees at will and thus had no entitlement to continued employment and appellants failed to show any questions of fact on their other claims. Held:

1. As appellants were employees at will (OCGA § 34-7-1; Anderberg v. Ga. EMC, 175 Ga. App. 14, 15 (332 SE2d 326)), the trial court did not err by granting Nationwide summary judgment on appellants’ counterclaims, including the counterclaim for wrongful termination. Fulton-DeKalb Hosp. Auth. v. Metzger, 203 Ga. App. 595 (417 SE2d 163) holds that an employee is entitled to those earned benefits promised in his employee handbook, and, therefore, does not stand for the broad proposition of law that appellee asserts. Further, contrary to Fulton-DeKalb Hosp. Auth. v. Metzger, in this case the appellants are contesting the termination of their status as employees. Thus, even if the handbook were considered to be a contract, as it was for no specific term, their employment was terminable at will. Georgia Ports Auth. v. Rogers, 173 Ga. App. 538 (327 SE2d 511). Consequently, appellants’ claims based upon breach of the employee handbook is without merit. Moreover, Jackson’s assertion that he was somehow constructively terminated adds nothing to his claim.

Finally, appellants’ generalized claims that Nationwide somehow otherwise breached provisions of the employee handbook are. also without merit. Assuming without deciding appellants could establish a cause of action because of a failure to promote, or failure to “utilize all human resources to the fullest extent possible,” appellants failed to present evidence supporting their claims. Accordingly, the trial court did not err by granting summary judgment to Nationwide on appellants’ claims concerning the employee handbook. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. The trial court did not err by granting summary judgment on appellants’ claims for intentional infliction of emotional distress. To prevail on such a claim, appellants must establish that Nationwide’s behavior was wilful and wanton or intentionally directed to harm them, that the actions were such as would naturally humiliate, embarrass, frighten, or outrage appellants, and the conduct caused mental suffering or wounded feelings or emotional upset or distress. Coleman v. Housing Auth. of Americus, 191 Ga. App. 166 (381 SE2d 303). As this conduct was directed toward others, not appellants, they cannot establish a necessary element of the claim. Kornegay v. Mundy, 190 Ga. App. 433, 435 (379 SE2d 14). Accordingly, the trial court also did not err by granting Nationwide summary judgment on this claim. Lau’s Corp. v. Haskins, supra.

3. In the same manner, appellants have not established the facts necessary to establish a valid claim under any theory of recovery under an invasion of privacy claim: intrusion upon one’s seclusion, public disclosure of embarrassing information, placing their reputation in a false light, or appropriation of one’s name or likeness. See Sun v. Langston, 170 Ga. App. 60 (316 SE2d 172). Appellants have not identified any embarrassing facts about themselves which were revealed by Nationwide, and we cannot conclude that it is an unreasonable intrusion into appellants’ seclusion, solitude or private affairs for Nationwide to monitor its telephones as it routinely did. All employees were advised that the telephones were for business only and that the telephones would be monitored. Therefore, using a speaker telephone to monitor appellants’ telephone calls while at work, in the context of this case, does not constitute an unreasonable intrusion into their private affairs. Moreover, being escorted from Nationwide’s office by a supervisor fails to rise to the level of conduct required to establish a cause of action for false light and there is simply no question that Nationwide did not appropriate appellants’ names or likenesses. As none of the facts alleged by appellants supports any of these theories of recovery, the trial court did not err by granting Nationwide’s motion on these claims. See Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 704-706 (409 SE2d 835).

4. Appellants assert that the trial court erred by granting Nationwide’s motion for summary judgment on their claim for tortious interference with contract and business relationships because a Nationwide official called their current employer concerning what Nationwide asserted was a breach of their non-competition contract. Although the restrictive covenants in appellants’ contracts with Nationwide were ultimately found unenforceable, the trial court was correct in concluding that in the absence of evidence showing a malicious intent to injure, no action could be maintained against Nationwide on this claim. Singleton v. Itson, 192 Ga. App. 78, 79 (383 SE2d 598). Such calls as were made here do not constitute tortious interference. Colquitt v. Network Rental, 195 Ga. App. 244, 246 (393 SE2d 28). Further, the record plainly shows that appellants suffered no damages as a result of Nationwide’s action, and indeed, their new employer has paid their legal fees in this action. See Perry & Co. v. New South Ins. Brokers, 182 Ga. App. 84, 90 (354 SE2d 852).

5. Although appellants assert that the trial court erred by granting summary judgment to Nationwide on their claims of sexual harassment under Georgia law (see Favors v. Alco Mfg. Co., 186 Ga. App. 480, 482-483 (367 SE2d 328)), the record fully supports the trial court’s decision. No appellant claims to have been the victim of an act of sexual harassment, and only a person who was the subject of the harassment may bring such a claim. Kornegay v. Mundy, supra. Therefore, appellants’ claims must fail because they were not the subject of the harassment. Coleman v. Housing Auth. of Americus, supra at 170.

Decided December 3, 1992 —

Reconsideration denied December 17, 1992

Goodman & Bush, James E. Goodman, F. Clay Bush, Norman L. Smith, for appellants.

Troutman, Sanders, Lockerman & Ashmore, Susan S. Lanigan, Lesley G. Carroll, Douglas D. Salyers, for appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A1045.
    COX ENTERPRISES, INC. et al. v. BAKIN.
    (426 SE2d 651)
   Cooper, Judge.

We granted appellants’ application for interlocutory appeal to determine whether the trial court erred in denying appellants’ motion for summary judgment in appellee’s suit for libel. This case involves 31 articles published in The Atlanta Journal & Constitution (“the newspapers”) over a two-year period after the death of Gregory Dozier at Clayton General Hospital.

Appellee, Dr. Grant Bakin, was the physician on duty in the emergency room when Dozier was brought to the hospital for serious injuries sustained in a fight, the most severe of which was a deep gash in his right arm from which Dozier lost a great deal of blood prior to the arrival of an ambulance. Dozier was treated by hospital personnel in the emergency room, including Dr. Joe Choi and appellee, for several hours and was eventually moved to intensive care under Dr. Choi’s care. Appellee’s notes indicate that while Dozier was in the emergency room “there was absolutely no active bleeding from Mr. Dozier’s visible wound sites.” Shortly thereafter, Dr. R. Kashlan, a surgeon, examined Dozier in consultation with Dr. Choi and discovered, after removing Dozier’s bandages, a fairly deep laceration pouring sanguineous material. Dozier was immediately taken to the operating room for exploration of the wound and died during surgery. After Dozier was pronounced dead, Dr. Kashlan sutured the wound before his body was taken to the morgue. An autopsy revealed that hypovolemia (blood loss) due to a stab wound in the upper right arm was the cause of death.

The complaint alleged that appellants, the writers of the articles, editors and publishers of the newspapers, falsely, maliciously and recklessly reported that appellee failed to provide proper treatment to Dozier and allowed him to bleed to death in the emergency room at the hospital. The newspapers first reported Dozier’s death on February 22, 1989 in an article entitled, “Case of Man Who Bled to Death in Clayton Hospital Probed.” The article stated that the medical examiner subpoenaed the “emergency medical records of a man who bled to death in Clayton General Hospital at least seven hours after he was taken there with stab wounds in his right arm”; that the records were subpoenaed because of inconsistencies in the time of death and in statements made by hospital officials; that Dozier died on the operating table as doctors tried to repair a severed artery; that the autopsy showed that Dozier had two severe cuts in his right arm and a cut on his face; and that the cuts in his arm had been sutured. The article also reported that according to the police, Dozier was stabbed at about 1:15 a.m. and was taken to Clayton General at 2:25 a.m.; that at 7:00 a.m., Dozier was wheeled into the operating room; and that he died at 9:17, although a hospital spokesperson reported Dozier died at 10:20 a.m. An investigator from the medical examiner’s office was quoted as saying that Dozier bled to death as a result of the arm injury but that much could not be said until the medical records were supplied. Dozier’s sister was quoted as follows: “He apparently bled to death. . . . That’s was puzzles me. I couldn’t believe it. In a hospital? They’re supposed to be the ones that stop the bleeding. If it was needed, they would do a blood transfusion, that’s what I would think.” (Indention and punctuation omitted.) The hospital spokesperson reportedly said that Dozier died on the operating table but that he did not die from the stab wounds and was treated minute by minute with appropriate treatment. She did not explain why doctors operated four-and-a-half hours after Dozier arrived, nor would she confirm that he received stitches before surgery. Major Dwayne Hobbs of the Forest Park police was quoted as saying that detectives working on the case told him that doctors stitched Dozier up and later emergency room personnel “ ‘noticed that he was getting worse and found out lie was bleeding again’ ”; that there was blood on a stretcher and Dozier was taken back into surgery where he died; and that appellee treated Dozier in the emergency room and said that Dozier suffered “a ‘severe loss of blood, but that if he dies it would be . . . from complication of alcohol and drugs in his blood system.’ ” The article concluded with a quote from Dozier’s mother, “Sometime I break down. . . . I’m just trying to hold out. I don’t know what happened. That’s what we’re trying to find out.”

On February 23, 1989, a second article was published entitled, “State Agencies Want Details Of Death at Clayton Hospital,” with the subtitle, “Cut Artery Reportedly Not Treated for Hours.” This article reported that the Georgia Department of Human Resources (“DHR”) and the Composite State Board of Medical Examiners (“CSBME”) sought the details of Dozier’s treatment in the emergency room. The article restated that Dozier died on an operating table; that initial autopsy findings concluded that he bled to death because of a severed artery in his right arm; and that Forest Park police said that Dozier’s injuries were stitched before the severed artery was discovered. Then the article stated that Dozier was treated by appellee for cuts in his right arm and hypothermia; that appellee is a New York native and a graduate of the Autonomous University of Guadalajara, Mexico; that appellee was one of nine emergency room physicians who formed the Atlanta Emergency Group, a private partnership with an exclusive contract with the hospital to provide its emergency room services; that appellee was licensed to practice in Georgia in 1983, six months after receiving his “doctor’s credentials”; and that although appellee listed emergency medicine on his license renewal in 1987, prior to 1987 he listed that he was a psychiatrist. According to the article, the hospital’s administrator said that he was conducting his own investigation into the death; that Dozier was suffering from hypothermia and suspected intoxication which may have contributed to the delay in treatment of the artery; and that the spokesperson incorrectly reported the time of death because a doctor had written the wrong time on Dozier’s record. However, he refused to account for the four-and-a-half hour span before the surgery, to state the point at which the doctors determined Dozier needed surgery or to give the name of the surgeon who operated on Dozier. A DHR official is reported to have said her agency would investigate whether state rules and regulations were violated in the emergency room in a broad context, not focusing solely on the Dozier case. The CSBME director reportedly said they would investigate whether the medical treatment fell below standards. The article indicates that if either the hospital or the physician were found to have given inadequate care, both state agencies could file civil charges. None of the remaining 29 articles specifically name appellee or refer to him. The articles only mention the Dozier incident and focus on state and federal investigations into the hospital’s practices which eventually expanded beyond the emergency room, other deaths in the hospital, corrective action taken by the hospital, the threat to the hospital’s federal funding because of alleged deficiencies, criticism of the hospital’s accreditation, the hospital’s efforts to improve its image, sanctions against three unnamed physicians, a private group’s evaluation of 100 state hospitals, a Clayton County Commission public hearing and grand jury probe into the administration of the hospital and “negligent” physicians, criticism of the hospital administrator, the resignation of the administrator and chairman of the hospital authority, the consent agreement between the hospital and the state, the removal of the hospital from the critical list, the expansion of the emergency room and the hiring of a new administrator. Three of the articles involve the firing of the Atlanta Emergency Group and its subsequent suit against the hospital; however, none makes any specific reference to appellee.

1. In their first two enumerations of error appellants contend that the majority of the articles are not of and concerning appellee and that the two articles that do refer to appellee are true and not conclusive as to whether Dozier’s death was caused by deficient treatment and therefore cannot be defamatory. “To sustain an action for libel ‘ “(t)he (allegedly) defamatory words must refer to some ascertained or ascertainable person, and that person must be the plaintiff. If the words used really contain no reflection on any particular individual, no averment or innuendo can make them defamatory. An innuendo can not make the person certain which was uncertain before.” Where the words of the alleged libelous matter are so vague and uncertain that they could not have been intended to refer to any particular person, or the published words are incapable of any other construction other than (that) they are not defamatory of the plaintiff, the petition is subject to (dismissal). (Cits.) “A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it. So the whole item . . . should be read and construed together, and its meaning and signification thus determined. When thus read, if its meaning is so unambiguous as to reasonably bear but one interpretation, it is for the judge to say whether that signification is defamatory or not. If upon the other hand, it is capable of two meanings, one of which would be libelous and actionable and the other not, it is for the jury to say, under all the circumstances surrounding its publication, including extraneous facts admissible in evidence, which of the two meanings would be attributed to it by those to whom it is addressed or by whom it may be read.” ’ [Cit.]” Fiske v. Stockton, 171 Ga. App. 601, 602 (1) (320 SE2d 590) (1984).

Based on a review of the 31 articles cited by appellee, we conclude at the outset that the 29 articles which do not refer to him specifically or by innuendo are not defamatory. Appellee contends that although the articles do not specifically name him, because he was identified as Dozier’s emergency room physician in the first two articles, later references to Dozier’s death by implication refer to him. However, those articles make limited reference to the Dozier incident for historical reference, and certainly contain no reflection on any particular individual with regard to Dozier’s death. See Armscorp of America v. Daugherty, 191 Ga. App. 19, 20 (380 SE2d 729) (1989); Fiske, supra. In our view, the average reader would not draw the conclusion that appellee carelessly let Dozier bleed to death in the emergency room or that his treatment was otherwise deficient. Macon Telegraph Pub. Co. v. Elliott, 165 Ga. App. 719 (1) (302 SE2d 692) (1983).

Moreover, the February 22 and 23, 1989 articles in their entirety also cannot be reasonably construed to be defamatory. First of all, the articles clearly state that Dozier died on the operating table during surgery, not in the emergency room, and the newspapers reported an unexplained four-and-one-half hour delay in the surgical repair of the severed artery. Secondly, what is written specifically about appellee is essentially true. Appellee complains that the Atlanta Emergency Group is a professional corporation and not a private partnership; however, this error is not significant. Appellee also complains of certain omissions which create a false impression of his treatment of Dozier, specifically, the newspapers’ failure to report that Dozier lost a large amount of blood before arriving at the hospital, the fact that appellants chose to focus on particular aspects of his background and the fact that the CSBME determined he did not violate any provisions of the Medical Practice Act in his treatment of Dozier. Appellee points to reporter’s notes which indicate that one of the reporters was aware of the CSBME ruling and contends that the newspapers’ failure to report the ruling is evidence of the newspapers’ recklessness or a deliberate attempt to create a negative impression of his treatment. “ ‘ “(A)n omission of information from a statement admittedly published will not support an action for libel. (Cit.)” (Cit.)’ [Cit.]” Yandle v. Mitchell Motors, 199 Ga. App. 211 (404 SE2d 313) (1991). While the newspapers might have had a moral obligation to do a follow-up story on the CSBME’s findings, there apparently was no legal obligation for them to do so.

In addition, appellee complains that the February 22 article falsely reported that Forest Park police sources claimed doctors stitched Dozier up and later that emergency room personnel noticed that the bleeding was getting worse because Major Hobbs, who was quoted in the article, testified later in a deposition that he did not recall providing such information. The February 23 article also indicated that Forest Park police said that Dozier’s injuries were stitched before the severed artery was discovered. This statement is clearly contradicted by Dr. Kashlan’s report which indicates that the arm wound was not sutured prior to the surgery. However, neither article states that appellee sutured the arm, that the suturing was negligently performed or that the suturing resulted in Dozier’s death. The articles also indicated that other doctors were involved in his treatment. We agree with appellants that the thrust of the articles is that days following Dozier’s death it was unclear what care rendered by Clayton General possibly contributed to his death. Both articles reported that various entities were looking into the circumstances surrounding Dozier’s death and Clayton General’s role, not that appellee’s treatment was deficient. Moreover, notwithstanding appellee’s contentions, “in considering whether a writing is defamatory as a matter of law, we look not at the evidence of what the extrinsic circumstances were at the time indicated in the writing, but at what construction would be placed upon it by the average reader. [Cits.]” Macon Telegraph, supra at 721. In our view, “ ‘[t]he words of the [articles] contain no hurtful innuendo regarding appellant’s character or behavior and a reader’s subjective decision to impute such innuendo to the [articles] is not actionable as a defamation. (Cit.)’ [Cit.] The article[s] ‘ “[lack] the element of personal disgrace necessary for defamation.” (Cit.)’ [Cit.]” Mead v. True Citizen, 203 Ga. App. 361, 362 (417 SE2d 16) (1992). Therefore, because the 31 articles are not defamatory, the trial court erred in denying appellants’ motion for summary judgment.

Decided December 4, 1992 —

Reconsideration denied December 17, 1992

Dow, Lohnes & Albertson, Peter C. Canfield, Jean B. Blumenfeld, for appellants.

Remler, Koski & Near, Robert C. Koski, Bruce Berger, Oliver, Duckworth, Sparger & Winkle, David P. Winkle, for appellee.

2. Based on the foregoing we need not consider appellants’ remaining enumerations of error.

Judgment reversed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A92A1147.
    WELLS et al. v. FAUST.
    (426 SE2d 655)
   Andrews, Judge.

Plaintiffs, the representatives of the decedent, Ron Wells, appeal from the grant of summary judgment to defendant Faust on their wrongful death action.

Viewed in favor of plaintiffs below, opponents of the motion to dismiss and motion for summary judgment, Ron Wells, a student at the University of Georgia, was fatally injured on December 29, 1985, when he fell from the hood of a moving car driven by his fraternity brother Faust. They had been drinking that evening, including playing “quarters,” a competitive drinking game, and had driven to a store around midnight to buy cigarettes. When Wells returned from the store, Faust had moved the car and pretended that he was going to leave Wells. Wells then got on the hood of the car and told Faust to drive on. Although Faust and the two other occupants of the car also asked him to get in the car, Wells refused. Faust, who had consumed four to eight beers, drove about five to seven mph the two or three blocks back to the fraternity house. As he made the left turn into the parking lot, Wells fell from the car, landing face first on the pavement. Wells, a heavy drinker, had consumed 15 or 16 beers over the course of the evening.

Wells was carried into the house and examined by the others for obvious broken bones or other injuries. There were scratches on his hands and one of the others noticed scratches on his jaw, but no obvious broken bones were noted. Because of their concern that he could have struck his head, Bissel called the hospital emergency room and was told to watch Wells for about an hour and give him aspirin. They did this, and Wells indicated he did not want to go to the hospital, but wanted to sleep. Since he felt nauseous from the alcohol consumption, he was allowed to go to bed in one of the downstairs bedrooms adjacent to a bathroom. He went to bed there wearing his shirt and blue jeans.

The next morning, Faust checked on Wells about 8:00 a.m. He discovered that, during the night, Wells had thrown up in the bedroom, removed his clothing and hung it in the bathroom, gone upstairs to his own room and climbed into his loft bed. Faust shook Wells’ foot, hanging over the edge of the loft, and spoke to Wells, who again indicated his desire to sleep. Wells was discovered dead around 11:00 a.m. He was dressed only in his boxer shorts, which appeared to have gravel dust on them, leading the others to conclude that he had gone outside during the night and fallen.

Suit was filed by plaintiffs in Clarke County Superior Court against Faust and the national fraternity on December 17, 1987, shortly before the expiration of the two-year statute of limitation. OCGA § 9-3-33. Neither Faust nor the national fraternity was a resident of Clarke County at that time. When the complaint was filed, information was provided for service by second original on Faust in Richmond County, which was the address obtained from Wells’ father, one of the plaintiffs. In fact, Faust was residing in Columbia County. Service papers were left at the fraternity house in Clarke County for Faust but he was not served until April 11, 1988, in Augusta where he was working. In that action, Faust raised insufficiency of service of process and lack of venue in his answer.

Both defendants filed motions to dismiss for insufficiency of service of process and plaintiffs voluntarily dismissed the Clarke County suit on January 30, 1989. They then filed the Columbia County (renewal) suit on July 10, 1989, against Faust and the local fraternity chapter. Service was obtained on Faust on July 28, 1989, in this renewal suit.

Faust filed his motion to dismiss the renewal suit on March 19, 1990, contending that plaintiffs were guilty of laches in effecting service in the original Clarke County suit and that, since that suit was therefore not “valid,” it was not subject to renewal, relying on Brumit v. Mull, 165 Ga. App. 663 (302 SE2d 408) (1983). On March 21, 1990, he filed his motion for summary judgment, based on the running of the statute of limitation and lack of due diligence in effecting service in the original Clarke County suit. By order of January 16, 1992, the court granted the motion for summary judgment and dismissed the Columbia County renewal action on the basis that the original suit was not a valid suit subject to renewal.

Although not cited by either party, the issue of whether the original suit was “void” has been addressed by Fine v. Higgins Foundry &c. Co., 201 Ga. App. 275 (410 SE2d 821) (1991). In that case, the original suit was filed before the expiration of the statute of limitation, but was voluntarily dismissed after defendant raised the defense of laches and the expiration of the statute of limitation. The renewal suit was then filed pursuant to OCGA § 9-2-61 within six months of the dismissal of the original action. The court dismissed the renewed suit, but was reversed by this court.

“When an action is filed near the expiration of the statute of limitation, however, belated service may amount to laches, authorizing the trial court to dismiss the action. [Hilton v. Maddox, Bishop, Hayton &c., 125 Ga. App. 423, 426-427 (188 SE2d 167) (1972).] Because such a dismissal is in the discretion of the trial court, Watters v. Classon, 193 Ga. App. 493, 494 (1) (388 SE2d 397) (1989), until and unless the trial court enters an order dismissing that action it is merely voidable rather than void.” (Emphasis supplied.) Fine, supra at 276 (la).

Therefore, the trial court’s determination was incorrect. There remain other issues, however, with respect to the validity of the service in the original suit which cannot be answered on the record before us. It is unclear whether the service effected on Faust in Richmond County was valid and whether venue was ever appropriate in Clarke County.

Also, even assuming the service in the original suit was appropriately effected, there remains the question of whether service in the renewal suit is affected by laches. Collier v. Marsh, 203 Ga. App. 322, 323 (2) (416 SE2d 849) (1992); Jones v. Cropps, 197 Ga. App. 313, 314 (2) (398 SE2d 295) (1990).

Judgment reversed and remanded with direction.

Birdsong, P. J., and Beasley, J., concur.

Decided December 4, 1992 —

Reconsideration denied December 17, 1992

Alvin G. Wells, Jr., for appellants.

Eason, Kennedy & Associates, Richard B. Eason, Jr., for appellee.

       Although Fine, supra, is physical precedent only we are constrained to follow its rationale.


author: Carley, Presiding Judge.

text:
    A92A1239.
    DEPARTMENT OF TRANSPORTATION v. FRU-CON CONSTRUCTION CORPORATION.
    (426 SE2d 905)
   Carley, Presiding Judge.

The facts, insofar as they are relevant to the instant appeal, are as follows: Appellant-defendant Department of Transportation (DOT) undertook a highway construction project which included the construction of some 15 bridges. DOT contracted with appellee-plaintiff Fru-Con Construction for the construction of these bridges. The contract specified that appellee would complete the bridges by a specified date and that, if it did not, it would be liable for liquidated damages. Appellee failed to complete the bridges within the time specified in its contract and, for this delay, DOT withheld liquidated damages from the amount of its final payment to appellee. Appellee filed suit against DOT, seeking not only to recoup the liquidated damages which had been withheld from its payment, but also seeking to recover damages for DOT’s alleged breach of contract. The case was tried before a jury and a substantial verdict, including an award of OCGA § 13-6-11 attorney’s fees, was returned in favor of appellee. DOT appeals from the judgment that was entered by the trial court on the jury’s verdict.

1. Grading work was preliminary to appellee’s bridge construction work. However, the graders with whom DOT had contracted for this preliminary work did not complete the grading within the time specified in their contracts. Alleging that it was this delay in the preliminary grading work that had caused the delay in its bridge construction work, appellee sought damages for losses and expenses it incurred as the result of the graders’ untimely performance. DOT enumerates as error the trial court’s denial of a motion for directed verdict as to appellee’s recovery on this claim.

In the absence of a contractual duty, there can be no breach of contract. The graders certainly owed a contractual duty to DOT to have the grading completed within the time specified in their grading contracts. However, DOT did not, in turn, owe a contractual duty to provide appellee with completely graded bridge sites on the dates specified for completion of the grading contracts. Under appellee’s theory, DOT “would be warranting the timeliness of work outside its control. However, it is hardly ‘within the realm of normal expectation’ that [DOT] would ‘voluntarily stand as a guarantor of the performance of its contract by another contractor within a specified time.’ [Cits.] It has also been said that the government will not be held liable unless the contract can be interpreted as implying an unqualified warranty to make the work in question available. [Cit.] . . . [DOT] may have represented [to appellee] that the [grading] work would be done at a specified time, but there was no guarantee. [Cit.]” Rhode Island Turnpike &c. Auth. v. Bethlehem Steel Corp., 379 A2d 344, 353-354 (R.I. 1977).

Moreover, Paragraph 105.07 of appellee’s contract with DOT provides: “When separate contracts are let within the limits of any one project, each contractor shall conduct his work so as not to interfere with or hinder the progress or completion of the work being performed by other contractors. Contractors working on the same project shall assume all liability, financial or otherwise, in connection with his contract and shall protect and save harmless [DOT] from any and all damages or claims that may arise because of inconvenience, delay, or loss experienced by him because of the presence and operations of other contractors working within the limits of the same project.” This is a clear and unambiguous expression of the mutual intent that DOT would not assume vicarious contractual liability for untimely performance by its various contractors and would not be liable to appellee for “damages relating to late delivery of [the bridge sites].” Rhode Island Turnpike &c. Auth. v. Bethlehem Steel Corp., supra at 354. Compare Department of Transp. v. Arapaho Constr., 257 Ga. 269 (357 SE2d 593) (1987) (discussing the applicability of a “no damages” clause in connection with DOT’s breach of its own contractual obligations, and not in connection with delay resulting from breach by another contractor of the contractual duty owed to DOT). Any contention that Paragraph 105.07 is inapplicable in the instant case because it is not broad enough to “pertain to delays resulting from other contracts, specifically those with [the grading contractors] . . . does not withstand scrutiny. Reading the [entirety of the provision], one can see that [Paragraph 105.07 envisions the awarding of more than one contract within a given project, which in this case was the construction of [the entire highway project].” Rhode Island Turnpike &c. Auth. v. Bethlehem Steel Corp., supra at 354. The instant “no-damages” provision “would be valid and would [be applicable] in any instance where [delay] had been [caused] for any of several reasons not the result of a breach of contract on [DOT’s] part, which prevented appellee from performing its duties under the contract. (At least one possible example would be where [delay] was [caused] as a result of [in] action by one of the other parties involved in the . . . construction.)” (Emphasis in original in part and supplied in part.) Department of Transp. v. Arapaho Constr., 180 Ga. App. 341, 343 (1) (349 SE2d 196) (1986), aff'd 257 Ga. 269, supra.

It follows that the trial court erred in failing to grant DOT’s motion for a directed verdict as to appellee’s claim for damages based upon delay allegedly attributable to the untimely performance of the preliminary grading work.

2. The holding in Division 1 would not preclude appellee from seeking to recoup liquidated damages withheld by DOT for appellee’s failure to complete the bridge work within the time specified. Paragraph 105.07 merely precludes appellee from recovering damages from DOT based upon delay attributable to untimely performance by the other contractors engaged in the highway project. It does not purport to authorize DOT to recover liquidated damages from appellee based upon delay which is not attributable to appellee.

DOT nevertheless enumerates as error the denial of its motion for a directed verdict as to appellee’s entitlement to recoup the withheld liquidated damages. According to DOT, appellee cannot contest its liability for liquidated damages because appellee did not make a timely written request for an extension of time as required under Paragraph 108.07 (D) of the contract, which provides as follows: “If the normal progress of the work is delayed for reasons beyond his control, the contractor shall within fifteen days after the start of such a delay, file a written request to the engineer for an extension of time setting forth therein the reasons for the delay which he believes will justify the granting of his request.”

Pursuant to this provision, if appellee wished to excuse any untimely performance of its work based upon the untimely performance of the preliminary grading work, appellee would be required to give DOT written notice within 15 days of the date that the graders were otherwise contractually required to have completed their work. “[U]nder the terms of the contract, if [appellee’s] performance was delayed for reasons beyond its control, the proper contractual remedy was for it to apply, in writing, to the project engineer and [DOT] for an extension of time. . . . Assuming that [appellee] experienced any . . . delay for reasons beyond its control, the proper time for raising the issue was [“within fifteen days after the start of such a delay”] and the proper method for excusing the delay was that method identified in the contract. However, this contractual right to excuse . . . delays in performance was not asserted by [appellee] in a timely and proper fashion.” Dan-D, Inc. v. Burnsed Enterprises, 188 Ga. App. 207 (1) (372 SE2d 303) (1988).

Appellee’s main contention is that, even if it failed to satisfy the requirements of Paragraph 108.07 (D), DOT waived that requirement of timely written request for an extension of time because DOT had actual knowledge that the graders had not timely completed their work. However, DOT’s mere knowledge that the graders had not timely completed their work is certainly not evidence that DOT waived the requirement that appellee, in turn, apply for an extension because it would need extra time to complete its own work. Indeed, in the absence of such a request by appellee, DOT was entitled to presume that appellee did not consider the delay in the grading work to be a ground for extending the time for completion of the bridges. If DOT’s mere knowledge were sufficient, the provision requiring timely written request for an extension of time would be meaningless and superfluous. There is no evidence that DOT, “with such knowledge [of the graders’ untimely performance,] did any affirmative acjt which would lead [appellee] to believe that it was not necessary for it to give [timely] notice of a claim for [extension of time]; and mere silence when there is no duty to speak, cannot constitute a waiver or estoppel.” (Emphasis supplied.) State Hwy. Dept. v. Hewitt Contracting Co., 113 Ga. App. 685, 693 (2) (149 SE2d 499) (1966).

The most that the evidence shows is that, in response to appellee’s untimely written requests for extensions of time, no extensions of time were forthcoming. “Viewing the evidence in the light most favorable to [appellee], it is clear . . . that [appellee] failed to substantially complete its contractual obligations within the time agreed upon by the parties, and that [appellee] produced no evidence of a contractual defense to [DOT’s] claim for liquidated damages. Accordingly, the trial court [erred] in [failing to hold], as a matter of law, that appellee was [not] entitled to [recoupment] of liquidated damages.” Dan-D, Inc. v. Burnsed Enterprises, supra at 207-208 (1).

3. Appellee urges that, even if the trial court erred in failing to grant DOT’s motion for a directed verdict as to the contractual claims for damages and recoupment of liquidated damages based upon delay attributable to the graders, the judgment as to those claims must nevertheless be affirmed because, in addition to recovery under the terms of the contract, appellee sought recovery under an alternative eminent domain theory. Appellee urges that, under the “right for any reason” rule, the judgment in its favor must be affirmed under this alternative theory.

There is authority for the proposition that one who has contracted with the state can sue and recover based upon an eminent domain theory. C. F. I. Constr. Co. v. Bd. of Regents &c. of Ga., 145 Ga. App. 471 (243 SE2d 700) (1978); Fonda Corp. v. Dept. of Human Resources, 147 Ga. App. 226 (248 SE2d 528) (1978). However, these cases were all decided at a time when sovereign immunity was a viable defense to a contract claim against the state, and the holdings therein merely stand for the proposition that, notwithstanding the viable defense of sovereign immunity, one having a contract claim against the state can rely upon the eminent domain constitutional provision to bring a quantum meruit action against the state. Because the express contract was unenforceable, the contracting party could proceed against the state on an implied contract theory. “An implied contract is one not created or evidenced by distinct and explicit language, but inferred by law as a matter of reason and justice.” Young v. Lewis, 70 Ga. App. 627 (1a) (29 SE2d 267) (1944).

The state no longer has a sovereign immunity defense to contract actions brought against it. “[T]he state’s defense of sovereign immunity is . . . waived as to any action ex contractu for the breach of any written contract. . . entered into by the state or its departments and agencies.” Art. I, Sec. II, Par. IX (c) of the Ga. Const, of 1983. Accordingly, the present constitutional provision waiving the defense of sovereign immunity has obviated the holdings in C. F. I. Constr. Co. and Fonda Corp. One can now sue the state on an express contract and this viability of a claim on the express contract precludes recovery on an implied contract theory. “There cannot be an express and implied contract for the same thing existing at the same time between the same parties. It is only when the parties themselves do not expressly agree, that the law interposes and raises a promise; and no agreement can be implied where there is an express one existing.” Ramsey v. Langley, 86 Ga. App. 544, 549 (4) (71 SE2d 863) (1952). Accordingly, appellee must recover on the basis of the express contract with DOT and cannot recover under the implied contract theory which existed prior to the effective date of the 1983 constitution.

Moreover, even if appellee could rely upon implied contract as a viable alternative theory of recovery, the judgment for damages and recoupment of liquidated damages discussed in Divisions 1 and 2 still could not be affirmed under that theory. The jury returned a general verdict and did not specify under what theory the award of damages was being returned, and the verdict may well have been based upon the erroneous legal theory that DOT was liable on those claims under the express contract. England v. Ga.-Fla. Co., 198 Ga. App. 704, 705 (1) (402 SE2d 783) (1991). “Since the jury found a general verdict for [appellee] against [DOT], the verdict cannot stand for the reason that this court cannot determine whether the verdict was entered upon a proper basis. [Cits.]” Georgia Power Co. v. Busbin, 242 Ga. 612, 616-617 (8) (250 SE2d 442) (1978).

4. In addition to the claim for damages for delay discussed in Division 1 and the claim for recoupment of liquidated damages discussed in Division 2, appellee also sought to recover certain “direct costs.” DOT does not enumerate any error with respect to its liability for these costs, but has conceded its liability for at least a part thereof. Because a general verdict was returned, however, it cannot be determined what portion thereof was attributable to the “direct costs.” Accordingly, the judgment must be reversed with direction that the trial court enter judgment in favor of DOT in accordance with its motions for directed verdict discussed in Divisions 1 and 2 and that a new trial be held solely as to DOT’s liability for the “direct costs.” See England v. Ga.-Fla. Co., supra at 705 (1).

5. The partial grant of new trial discussed in Division 4 requires that we address certain rulings which may recur at that limited retrial. Those rulings all relate to appellee’s recovery of OGCA § 13-6-11 attorney’s fees.

“OCGA § 13-6-11 does not create an independent cause of action. That statute merely establishes the circumstances in which a plaintiff may recover the expenses of litigation as an additional element of his damages. [Cit.]” Brown v. Baker, 197 Ga. App. 466, 467 (2) (398 SE2d 797) (1990). “The damages allowed under this Code section are compensatory, not punitive or vindictive. [Cit.]” Bankers Fid. Life Ins. Co. v. Oliver, 106 Ga. App. 305, 308 (3) (126 SE2d 887) (1962). The constitutional waiver of sovereign immunity in contract actions against the state is not limited to a waiver of only certain elements of recoverable compensatory damages. It follows that the trial court correctly denied DOT’s motion for a directed verdict as to its sovereign immunity defense to liability for OCGA § 13-6-11 attorney’s fees. See Eastern Air Lines v. Fulton County, 183 Ga. App. 891, 894 (4) (360 SE2d 425) (1987).

The trial court refused to admit certain evidence which DOT asserted was relevant to its defense to liability for OCGA § 13-6-11 attorney’s fees. The trial court acknowledged the relevancy of the evidence,. but nevertheless excluded it on the ground that it “would be misleading to the jury and prove a significant problem for them to focus on the issues that we have in this case.” The trial court was correct in recognizing the potential relevancy of the excluded evidence to DOT’s defense to the recovery of OCGA § 13-6-11 attorney’s fees. Even assuming that the trial court was further correct in ruling that the evidence was nevertheless excludable because its potential for confusing the jury outweighed its relevancy, that rationale will certainly not exist at the limited retrial, wherein the sole issue will be DOT’s liability for the “direct costs” and its bad faith, stubborn litigiousness or causing unnecessary expense as to appellee’s recovery of those costs. Accordingly, if DOT seeks to introduce the evidence at retrial, the trial court should admit it for the jury’s consideration.

Finally, DOT enumerates as error the trial court’s failure to give appellee’s timely written request to charge on OCGA § 13-6-11 attorney’s fees. It would appear that the language of appellee’s request was an accurate statement of the law and was adjusted to the evidence. The mere fact that the language does not appear in a pattern charge is no ground for refusing a requested charge which is accurate and applicable. However, we cannot determine whether the failure to give this charge was error. DOT has no standing to enumerate error as to the trial court’s failure to give appellee’s request to charge. See Valdez-Hardin v. State, 201 Ga. App. 126 (410 SE2d 354) (1991). Accordingly, if, at the retrial, DOT wishes the jury instructed on principles applicable to the recovery of OCGA § 13-6-11 attorney’s fees, it should submit its own timely written request therefor and, if that request is not given, DOT must object in order to preserve the issue for appellate review.

Decided December 1, 1992 —

Reconsideration denied December 17, 1992 -

Michael J. Bowers, Attorney General, Hendrick, Spanos & Phillips, David R. Hendrick, Martin R. Salzman, for appellant.

Smith, Currie & Hancock, Joseph C. Staak, for appellee.

6. Remaining enumerations of error have been considered and are found to be moot or to be unlikely to recur at the limited retrial.

7. The judgment is reversed as to appellee’s claims for damages and for recoupment of liquidated damages based upon delay, with direction that the trial court enter judgment in favor of DOT as to those claims. The judgment is reversed as to appellee’s claim for “direct costs” and OCGA § 13-6-11 attorney’s fees, with direction that a new trial be held as to that claim.

Judgment reversed with direction.

Pope and Johnson, JJ., concur.


text:
    A92A1300.
    CENTEX-RODGERS CONSTRUCTION COMPANY v. McCANN STEEL COMPANY, INC.
    (426 SE2d 596)
   Cooper, Judge.

In July 1989, appellant entered into a contract with the City of I Roswell (the “City”) for the construction of the Roswell Municipal Center. The contract was a standard American Institute of Architects (“AIA”) contract (the “contract”), which required the contractor to incorporate the terms of the contract into each subcontract and to require each subcontractor to be bound by the contract and assume toward the contractor all obligations which the contractor assumed toward the owner. The contract contained a liquidated delay damages paragraph, which provided that if appellant did not complete the construction within 390 days after the commencement date of August 1, 1989, appellant would be liable to the City for liquidated damages in the amount of $300 per day until the construction was complete.

In October 1989, appellant entered into a subcontract with appellee for the supply, fabrication and erection of structural steel needed in the construction project. The subcontract required that appellee perform all work in accordance with the “subcontract documents,” which included the Subcontract, the General Conditions of the Subcontract, the Contract, and the Conditions of the Contract (General, Supplementary and other Conditions). The subcontract further provided that all of the subcontract documents were made a part of the subcontract; that appellee was bound by the terms of the general contract; that appellee assumed all obligations, liabilities and responsibilities that the appellant assumed toward the owner; that appellant was entitled to the benefit of all rights and remedies against appellee that the City had against appellant; and that in cases of conflict between the contract and the subcontract, the subcontract would control the relationship between the appellant and appellee. Appellant failed to complete the project within the time period specified in the contract, allegedly due to delays caused by appellee. Appellant subsequently filed an action for damages against appellee, asserting that appellee breached the subcontract by failing to timely fabricate, deliver and erect the structural steel. Appellee moved for partial summary judgment, seeking to limit its liability to $300 per day pursuant to the liquidated damages provision in the contract between appellant and the City. The trial court granted appellee’s motion and this appeal followed.

1. In its first enumeration of error, appellant contends that the trial court erred in concluding that appellee, as a subcontractor, could benefit from the liquidated delay damages provision in the contract between appellant and the City. “As a matter of contract law, incorporation by reference is generally effective to accomplish its intended purpose where . . . the provision to which reference is made has a reasonably clear and ascertainable meaning. [Cit.] ” Binswanger &c. Co. v. Beers &c. Co., 141 Ga. App. 715, 717 (2) (234 SE2d 363) (1977). It is undisputed that a liquidated delay damages clause is contained in the general contract between appellant and the City. However, appellant argues that to the extent that the provision was incorporated into the subcontract, it is ineffective because it is in conflict with the subcontract which is the controlling document. The subcontract contains a provision which states: “[N]o right or remedy in the subcontract is intended to be exclusive of any other right or remedy, but every right or remedy shall be cumulative and shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law.” Therefore, appellant argues that since the provisions of the subcontract control, appellant should not be limited to the liquidated damages stated in the general contract. We agree. When a party breaches a material term of a contract, whether it be a term relating to time of performance or any other, and the other party is damaged thereby, compensation for actual damages is a right and remedy available to the damaged party by law unless the contract provides otherwise. See, e.g., Home Ins. Co. v. North River Ins. Co., 192 Ga. App. 551, 558 (6) (385 SE2d 736) (1989); Spalding Constr. Co. v. Simon, 36 Ga. App. 723, 725 (1) (137 SE 901) (1927); OCGA § 13-6-1. Because the liquidated delay damages provision purports to limit appellant’s right to actual damages, a right which would otherwise be available by law, it conflicts with that paragraph of the subcontract which provides that any right or remedy provided for in the subcontract shall not limit any right or remedy otherwise available by law. Accordingly, we conclude that the subcontract controls and the liquidated delay damages provision is ineffective.

Decided November 30, 1992 —

Reconsideration denied December 17, 1992

Law Offices of John C. Bach, John C. Bach, Gregory W. Glass, Robert J. Hulsey, for appellant.

Smith & Fleming, Kent P. Smith, Robert 0. Fleming, Jr., David A. Rutherford, for appellee.

2. Appellant also argues that even if the liquidated damages provision were incorporated into the subcontract, the provision is not valid and enforceable under Georgia law. However, in light of our conclusion that the liquidated delay damages provision was ineffective due to its conflict with a provision of the subcontract, it is unnecessary to address this enumeration of error.

Judgment reversed.

Sognier, C. J., and McMurray, P. J., concur.