text:
    A02A0061.
    SHARP v. GREER, KLOSIK & DAUGHERTY et al.
    (568 SE2d 503)
   Barnes, Judge.

Attorney Donald J. Sharp sued Greer, Klosik & Daugherty, his former law firm, and Richard G. Greer, Frank J. Klosik, and John F. Daugherty individually and as partners of the firm. Sharp alleged the defendants filed abusive litigation against him in the form of a cross-claim and counterclaim in a previous action and intentionally inflicted emotional distress by accusing him of stealing cases and denying him fees. He also sought punitive damages under OCGA § 51-12-5. The defendants answered, denied liability, and moved to dismiss the action on the pleadings and for summary judgment. Sharp also moved for summary judgment. The trial court granted summary judgment to the defendants, and Sharp appeals, enumerating seven errors. For the reasons that follow, we affirm the trial court.

The trial court, in its excellent order, summarized the proceedings clearly and succinctly, a task not easily performed considering that all the litigants are attorneys and the record is replete with numerous factual allegations and claims. We quote from that order as follows:

This action is basically for the Plaintiff’s attorney fees, costs and related expenses incurred in obtaining a judgment for his portion of an attorney fee generated by the successful prosecution of a wrongful death action, and for defending the defensive pleadings, counterclaim and cross-claim by other members of the firm (the Defendants herein). After obtaining a portion of the fee he sought in the related fee action in Fulton County, the Plaintiff either elected not to pursue [an OCGA] § 9-15-14 claim or failed to prosecute [an OCGA] § 9-15-14 claim for the alleged wrongful assertion by Defendants of their claims before the trial judge in the fee dispute. By various theories of law, the Plaintiff now seeks to have this Court essentially retry the fee dispute and the hotly contested factual issues already tried in the Fulton County action, to determine whether the Defendants had some factual basis for the assertion of their claims. The theories supporting damages unrelated to the Plaintiff’s attorney’s fees and costs fail for a number of reasons. Underlying all of the Plaintiff’s claims is a contention that the Defendants failed to distribute to the Plaintiff a portion of the jointly earned fee from the wrongful death case. However, the Defendants obtained the fee proceeds by order of the trial court and held them pursuant to a Court order, an appeal from which was taken immediately by the Plaintiff’s and the Defendants’ respective client, who claimed entitlement to all or a portion of the fee at all times relevant to when the Defendants allegedly wrongfully withheld the Plaintiff’s money. Since the amount of the fee was always in dispute, not only between the parties herein but also between them and their client, any action or inaction by the Defendants could not be the proximate cause of the Plaintiff’s losses claimed herein. The Court notes with interest that the Plaintiff and the client apparently were seeking to have the Defendants pay the Plaintiff more than his one-third share of the wrongful death attorney fee in any proposed compromise of the attorney fee issue until the one-third fee with interest was awarded by the jury in the Fulton County fee dispute case.

The trial court proceeded to address each count in Sharp’s complaint and granted summary judgment or judgment on the pleadings to the defendants on each one. On appeal from the grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the non-moving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802-803 (500 SE2d 591) (1998). We will affirm a judgment that is right for any reason. Kaylor v. Atwell, 251 Ga. App. 270, 272 (2) (553 SE2d 868) (2001).

1. Sharp contends that the trial court failed to review the entire record, and that some of its findings of fact were not supported by the record. However, he fails to specify which facts he contends are unsupported and therefore does not meet his burden of showing error affirmatively by the record. White v. Arthur Enterprises, 219 Ga. App. 124 (2) (464 SE2d 225) (1995).

2. Sharp asserts the trial court erred in granting summary judgment to the defendants based on Sharp’s earlier release of Greer, contending that the release of one tortfeasor does not release others for the same harm unless it so specifies. The defendants contend that the release applies to all of them pursuant to OCGA § 13-4-80, which provides that if a creditor releases a joint debtor, the other debtors are released by operation of law. However, Sharp fails to cite to the record in discussing the terms of the release, which does not appear to be in the record. “It is not the function of this court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” (Citation and punctuation omitted.) Bergmann v. McCullough, 218 Ga. App. 353, 355-356 (3) (461 SE2d 544) (1995). Accordingly, we find this enumeration to be without merit.

3. Sharp asserts that the trial court erred in granting summary judgment to the defendants on his Racketeer Influenced and Corrupt Organizations (RICO) Act claim, in which he alleged a pattern of false swearing, perjury, and subornation of perjury for the purpose of controlling money to which he was entitled. He further asserts that these actions caused him damage because through them the defendants delayed paying him his attorney fees in the underlying case. However, his right to these fees and the defendants’ actions in the previous lawsuit were fully litigated in that suit. The trial court did not err in granting summary judgment to the defendants on Sharp’s RICO claim. See Markowitz v. Wieland, 243 Ga. App. 151, 155 (2) (c) (532 SE2d 705) (2000).

4. Sharp contends the trial court erred in granting summary judgment to the defendants on his claim for intentional infliction of emotional distress. Pretermitting whether Sharp’s claims are time-barred, we agree with the trial court that the claims alleged do not rise to the level of outrageousness and egregiousness required to sustain such an action. Amstadter v. Liberty Healthcare Corp., 233 Ga. App. 240, 243 (2) (503 SE2d 877) (1998).

Decided June 11, 2002

Reconsideration denied July 8, 2002

Lee W. Fitzpatrick, Donald J. Sharp, for appellant.

Greer, Klosik, Daugherty & Swank, Robert J. McCune, for appellees.

5. Sharp alleges he is entitled to partial summary judgment “as to liability for Gastona.” Presumably he means he is entitled to partial summary judgment on his count for abusive litigation regarding certain claims made by the defendant. In arguing this point, Sharp does not cite to the record to support most of his factual allegations regarding the defendants’ admissions and undisputed facts. For that matter, neither do the defendants. Court of Appeals Rule 27 (c) (1) and (2) clearly require specific references to the record, and on appeal this Court will not cull the record on the parties’ behalf. Rolleston v. Cherry, 226 Ga. App. 750, 753 (1) (b) (487 SE2d 354) (1997). Accordingly, we find no error in the trial court’s denial of partial summary judgment to Sharp.

6. The trial court did not err in granting summary judgment to the defendants on Sharp’s punitive damages claim, as without entitlement to compensatory damages punitive damages may not be recovered. Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 270 (2) (416 SE2d 274) (1992). Further, punitive damages are not available pursuant to an abusive litigation claim. Alcóvy Properties v. MTW Investment Co., 212 Ga. App. 102, 104 (4) (441 SE2d 288) (1994).

7. Finally, Sharp asserts that the trial court erred in several ways in granting summary judgment on his abusive litigation claim, brought under OCGA § 51-7-80 et seq. Pursuant to OCGA § 51-7-83 (b), a claimant must proceed under OCGA § 9-15-14 if he seeks only attorney fees and costs. Sharp contends that he complied with the statutory requirements of OCGA § 51-7-83 (b) simply by pleading for punitive damages and damages for intentional infliction of emotional distress and RICO violations, regardless of whether he is successful in obtaining them. However, the pleadings alone will not support the abusive litigation claim if the damages other than attorney fees and costs do not survive summary judgment. The trial court did not err in granting summary judgment to the defendants on Sharp’s abusive litigation claim.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A02A0142.
    SECURITY STATE BANK v. VISITING NURSES ASSOCIATION OF TELFAIR COUNTY, INC.
    (568 SE2d 491)
   Smith, Presiding Judge.

We granted the Security State Bank’s application for interlocutory appeal of the trial court’s denial of its motion for partial summary judgment in an action filed by Visiting Nurses Association of Telfair County, Inc. (VNA). Because we conclude that the bank’s motion should have been granted, we reverse.

The record shows that VNA maintained a checking account at the bank. Wanda Williamson was employed as a clerk by VNA, responsible for billing and making bank deposits. Over a four-year period, Williamson embezzled more than $250,000 from VNA by forging VNA’s endorsement on checks made payable to VNA or its signature on checks, cashing them at the bank, and keeping a portion of the proceeds, although she was not a signatory on VNA’s account. After a Georgia Bureau of Investigation (GBI) investigation, Williamson pled guilty and was sentenced to a prison term and ordered to pay restitution. VNA then brought this suit against the bank, alleging several different theories of recovery, including federal and Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act claims, negligence, breach of contract, and conversion. The bank moved for summary judgment as to the RICO claims on the ground that a total absence of evidence existed that the bank conspired with Williamson. The bank also moved for partial summary judgment on the negligence claims on the ground that VNA was precluded by the time bars in OCGA § 11-4-406 from recovering on checks with forged endorsements, as well as by a bar in the contract itself on the claim for breach of contract. VNA opposed the motion. The trial court denied the entire motion, finding that the bank had “not met its burden in that genuine issues of fact remain to be determined by the jury.”

1. The bank correctly points out that the sole factual issue in this case is whether the bank participated in a criminal scheme with Williamson to cash checks fraudulently. In two enumerations, the bank contends the trial court erred in concluding that a genuine issue of fact remained as to this issue. The parties’ briefs are largely devoted to arguing about whether the affidavits VNA submitted in support of its opposition to the bank’s motion should have been admitted into evidence and whether they are dispositive, or even probative. In those affidavits, two persons state they each heard Williamson say that she conspired with an unnamed bank employee to commit the crimes. The bank argues that these affidavits were untimely, that they were not probative because they were pure hearsay, and that even if admitted they do not serve to rebut the bank’s affirmative evidence that no co-conspirator existed: Williamson herself was deposed in prison, and she testified on her deposition that she did not tell anyone she worked with a teller and that all she had said was that a certain teller was the first person to approve one of the forged checks and “[p]eople tried I think to get her caught up in it and, you know, there’s nobody at Security Bank that should definitely be tied up because I didn’t have a specific person that I went to.” The GBI conducted an investigation, and the lead investigative officer stated in his affidavit that the investigation disclosed no co-conspirator. In addition, three bank officers executed affidavits in which they stated that an internal investigation revealed no co-conspirators and no unexplained accounts or funds in the existing accounts of any bank employee. VNA claims its affidavits are admissible under Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982), as a prior inconsistent statement.

We need not decide any of these questions, because even if the affidavits were admissible, probative, and sufficient to rebut the bank’s affidavits, VNA could not recover on its RICO claims for a different reason.

VNA alleges that a bank employee conspired with Williamson to defraud it. The bank therefore may only be held liable for a RICO violation under a theory of respondeat superior. The U. S. Court of Appeals for the Eleventh Circuit has held that “respondeat superior liability may be applied in the context of 18 USC § 1962 (b) only when an enterprise has derived some benefit from the RICO violation. [Cit.]” Quick v. Peoples Bank &c., 993 F2d 793, 797 (II) (11th Cir. 1993). The Georgia RICO Act follows suit. OCGA § 16-14-2 (b) provides that the Act applies “to an interrelated pattern of criminal activity motivated by or the effect of which is pecuniary gain or economic or physical threat or injury.” “[I]t is clear that RICO applies to a pattern of criminal activity where it is directed towards acquiring or maintaining something of pecuniary value.” Sevcech v. Ingles Markets, 222 Ga. App. 221, 222 (1) (474 SE2d 4) (1996).

The record in this case includes absolutely no evidence that the bank profited from Williamson’s crimes; in fact, it is clear that Williamson is the only one who profited. Even if we assume that a bank employee was a co-conspirator, the bank cashed the checks; it received no value in return. The funds were not deposited. By cashing the checks, the bank actually caused a potential pecuniary loss to itself. VNA therefore cannot prove an essential element necessary for recovery under its RICO claim. When a “plaintiff cannot establish an essential element of his claim, the defendant is entitled to summary judgment.” Sherrill v. Stockel, 252 Ga. App. 276, 279 (557 SE2d 8) (2001). The trial court should have granted the bank’s motion for summary judgment as to this claim.

2. The trial court also erred in not applying the statutory bars of OCGA § 11-4-406 (f) to the facts, limiting VNA’s recovery at most to those checks wrongfully cashed within the statutory time periods preceding notice to the bank.

OCGA § 11-4-406 (f) provides:

Without regard to care or lack of care of either the customer or the bank, a customer who does not within 60 days after the statement or items are made available to the customer . . . discover and report the customer’s unauthorized signature on or any alteration on the face of the item or who does not within one year from that time discover and report any unauthorized indorsement or alteration on the back of the item is precluded from asserting against the bank the unauthorized signature, indorsement, or alteration.

The term “unauthorized endorsement” includes a missing endorsement and a forgery. Trust Co. Bank v. Atlanta IBM Employees Fed. Credit Union, 245 Ga. 262, 264-265 (264 SE2d 202) (1980). See also OCGA § 11-1-201 (43). It is undisputed that the bank sent VNA a monthly statement during the four-year period that Williamson was fraudulently cashing checks. The bank is therefore entitled to invoke the limitation periods in OCGA § 11-4-406.

VNA argues that these limitation periods do not apply because OCGA § 11-3-405, addressing the effectiveness of an improper endorsement, rather than OCGA § 11-4-406, is the applicable statute. Contrary to VNA’s argument, OCGA § 11-3-405 is not applicable here. Article 3 of the Uniform Commercial Code addresses the issue of the negotiability of commercial paper, while Article 4 addresses the relationship between banks and their customers. The trial court should have granted the bank’s motion for partial summary judgment on this ground.

3. Similarly, the bank points out that contractual provisions limited the bank’s liability. Under OCGA § 11-4-103 (a), a bank and its customer may vary the provisions of Article 4 by contract. See also Karrer v. Ga. State Bank &c., 215 Ga. App. 654, 659 (2) (452 SE2d 120) (1994). In this case, the contract provided for a 14-day time limit to assert an altered or unauthorized signature. It also provides that the bank loses this protection if it did not exercise ordinary care unless it received no notification within 60 days. The record shows without dispute that more than 60 days passed before the bank was notified as to a majority of the checks. The trial court should have granted the bank’s motion for partial summary judgment on this ground as well.

Decided May 21, 2002

Reconsideration denied July 8, 2002

Straughan & Straughan, Mark W. Straughan, for appellant.

William E. Moore, Jr., Saleem D. Dennis, for appellee.

Judgment reversed.

Eldridge and Ellington, JJ, concur.

       Because the Georgia RICO Act, OCGA §§ 16-14-1 through 16-14-15, is modeled after the federal statute, 18 USC §§ 1961 through 1968, we look to federal authority as to both. Gentry v. Volkswagen of America, 238 Ga. App. 785, 791 (4), n. 5 (521 SE2d 13) (1999). Although differences exist, Chancey v. State, 256 Ga. 415, 416 (349 SE2d 717) (1986), they are not material here.


author: Phipps, Judge.

text:
    A02A0513.
    THE STATE v. LYONS et al.
    (568 SE2d 533)
   Phipps, Judge.

A multi-count indictment charged each defendant in this case with various sexual offenses allegedly perpetrated against a 13-year-old female in October 2000. The defendants filed general demurrers contesting certain rape charges alleged to have been committed by having carnal knowledge of the female whose “overall cognitive age equivalence” or “overall age equivalence” was allegedly “less than 10 years of age.” The State argued that the alleged conduct constituted rape as defined by OCGA § 16-6-1 (a) (2), which provides that “[a] person commits the offense of rape when he has carnal knowledge of [a] female who is less than ten years of age.” The trial court ruled that “10 years of age” was determined by the number of years a person had been on earth from date of birth to date of crime and sustained the general demurrers, thereby dismissing the contested rape counts. The State appeals. Because, under the applicable rules of statutory construction, the alleged conduct is insufficient to constitute rape as defined by OCGA § 16-6-1 (a) (2), we affirm.

In interpreting a statute,

our goal is to determine its legislative purpose. In this regard, a court must first focus on the statute’s text. In order to discern the meaning of the words of a statute, the reader must look at the context in which the statute was written, remembering at all times that the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes. If the words of a statute, however, are plain and capable of having but one meaning, and do not produce any absurd, impractical, or contradictory results, then this Court is bound to follow the meaning of those words. If, on the other hand, the words of the statute are ambiguous, then this Court must construe the statute, keeping in mind the purpose of the statute and the old law, the evil, and the remedy. OCGA § 1-3-1 (a). Moreover, because this is a criminal statute, it must be strictly construed against the State.

We presume that statutes are enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it. Before subsection (a) (2) was added to OCGA § 16-6-1 in 1999, a person committed (forcible) rape when he had carnal knowledge of a female, forcibly and against her will. Statutory rape was and is defined as engaging in sexual intercourse with any person under the age of consent and required no showing of force or lack of consent. In Drake v. State, our Supreme Court remarked that some “very old cases [had] blended concepts of nonconsent and force” in rapes involving underage victims and had caused confusion. Drake clarified that while a victim’s age may show lack of consent where the victim is legally incapable of consent, it does not supply the element of force. The Court explained, “It is true that sometimes mere lack of consent imputes force, but this is true only where children are not involved.”

Our Supreme Court reaffirmed Drake in State v. Collins and further recognized that if the victim’s age alone supplied the elements of both force and lack of consent, then, as a practical matter, few defendants would be charged with statutory rape. The Court reasoned that

establishing a single rule of law in all forcible rape cases involving underage victims is problematic. If we were to presume that force is shown every time the victim is below the legal age of consent, the same rule would apply to the child entering kindergarten and the sexually active high school student. This single treatment not only ignores the wide variety of factual situations in rape cases, but also runs counter to the trend in the criminal law to create “meaningful grading distinctions among the different forms of the offense.”

Recognizing that the quantum of evidence needed to prove force against a child is minimal, the Court in Collins urged the General Assembly to enact an additional definition of forcible rape that would “reestablish our common-law rule and the common-sense principle that sexual intercourse with a child under ten years of age is a forcible act constituting rape as a matter of law.”

In 1999, the General Assembly enacted OCGA § 16-6-1 (a) (2). The language of that Code section delimiting the victim’s age as “less than ten years of age” is unambiguous. Giving the plain words their ordinary and literal meaning, the legislature unquestionably intended to increase the protection afforded to victims chronologically under the age of ten. It does not follow, however, that the legislature further intended to include victims who are chronologically beyond that age, such as the 13-year-old here. “The unambiguous words of a criminal statute are not to be altered by judicial construction so as to punish one not otherwise within its reach, however deserving of punishment his conduct may seem.” Had the legislature intended to extend the protection of OCGA § 16-6-1 (a) (2) to victims other than those less than ten chronological years of age, it could have said so. It did not.

Even if we determined that the language is ambiguous, the result would be the same. “When a criminal statute fairly and reasonably is subject to two constructions, one which would render an act criminal, the other which would not, the statute must be construed strictly against the State and in favor of the accused.” Thus, even if the State’s broad construction were reasonable, the contrary strict construction of the criminal statute must be accepted because it is at least equally reasonable.

Our construction of OCGA § 16-6-1 (a) (2) adheres to the principle of preserving meaningful grading distinctions among the different forms and factual situations of rape in cases involving victims under the age of consent. And we have construed the statute in connection with other provisions of the criminal code. Indeed, in this case, each defendant was also charged with forcible rape under OCGA § 16-6-1 (a) (1). And although they were not charged with it, the acts attributed to them constituted statutory rape under OCGA § 16-6-3 (a).

Decided June 24, 2002

Reconsideration denied July 8, 2002

Patrick H. Head, District Attorney, Dana J. Norman, Frances D. Hakes, Eleanor A. Komahrens, Assistant District Attorneys, for appellant.

O’Brien & Koontz, Dennis C. O’Brien, Martin & Parker, Roderick H. Martin, Russell J. Parker, Jr., Scott P. Semrau, Lawrence W. Daniel, Steven A. Cook, Jimmy D. Berry, John W. Morse, Cindi L. Yeager, John A. Hildebrand, J. Stephen Schuster, George J. Robinson,

We reject the State’s position that the legislature intended the phrase “less than ten years of age” as used in OCGA § 16-6-1 (a) (2) to refer not only to chronological age but also to “overall cognitive age equivalence” or “overall age equivalence.” Accordingly, the conduct alleged in the contested charges is not within the ambit of that statute.

A general demurrer challenges the sufficiency of the substance of an indictment and should be granted only when a defendant can admit all the charged allegations as made and still be innocent. The demurrer should be denied, however, if the guilt of the defendant follows as a legal conclusion from the alleged facts. Here, the defendants could admit to the factual allegations of the contested charges and still be innocent of them. The trial court did not err in sustaining the defendants’ general demurrers as to violations of OCGA § 16-6-1 (a) (2).

Judgment affirmed.

Andrews, P. J, and Mikell, J., concur.

Jr., Jill E. Stahlman, John R. Greco, Constance McManus, Joanne E. Elsey, James W. Gibert, Derek M. Wright, for appellees.

       (Punctuation and footnotes omitted.) Busch v. State, 271 Ga. 591, 592 (523 SE2d 21) (1999).

        Dudley v. State, 273 Ga. 466, 468 (542 SE2d 99) (2001).

       See Drake v. State, 239 Ga. 232-233 (1) (236 SE2d 748) (1977).

       OCGA § 16-6-3 (a); Drake, supra.

       Supra.

        Drake, supra at 233.

       Id. at 234.

       Id.

       270 Ga. 42, 43 (508 SE2d 390) (1998) (the State must prove the element of force as a factual matter in forcible rape cases rather than presuming force as a matter of law based on the victim’s age).

        Collins, supra at 44; see also Drake, supra at 234.

       (Footnote omitted.) Collins, supra at 45.

       Id. at 44-45.

       Id. at 46.

       Ga. L. 1999, p. 666.

       (Citation and punctuation omitted.) Vines v. State, 269 Ga. 438, 440 (499 SE2d 630) (1998).

       (Citations and punctuation omitted; emphasis in original.) Id. at 439.

       See id.

       Accord Couch v. State, 253 Ga. 764, 765 (2) (325 SE2d 366) (1985) (“[t]he age referred to in [OCGA § 16-3-1] is, of course, biological age. Nothing evidences a legislative intent to refer to ‘mental age’ - if, indeed, such a thing could ever be determined.”); Foster v. State, 216 Ga. App. 26, 28 (2) (453 SE2d 482) (1995) (“[i]t is clear from the plain language of OCGA § 24-3-16 that the legislature intended to limit [an] exception to the hearsay rule to statements made by a child who was under the chronological age of 14 at the time of the alleged act”).

        Dennard v. State, 243 Ga. App. 868, 869-870 (534 SE2d 182) (2000); Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993).

        Dunbar, supra.


author: Barnes, Judge.

text:
    A02A0640.
    MUIR v. THE STATE.
    (568 SE2d 515)
   Barnes, Judge.

Jamie Muir appeals her conviction for driving under the influence of alcohol to the extent she was a less safe driver, contending the trial court erred in restricting her expert’s testimony concerning the administration and reliability of the horizontal gaze nystagmus (HGN) field evaluation test. Because the trial court did not abuse its discretion in finding that the witness was not qualified as an expert in this area, we affirm.

This case was tried for a second time after we reversed the first conviction in Muir v. State, 248 Ga. App. 49 (545 SE2d 176) (2001). On retrial, the state prosecuted Muir both as a less safe driver and as a per se violator for driving with a blood alcohol content of 0.10 grams or more, but the jury acquitted her of the per se violation. During the presentation of the State’s case, the arresting officer testified in detail regarding the fact that ingesting alcohol causes an involuntary nystagmus, or jerking, in the eyes, and regarding his administration of the test to Muir. He further testified that Muir had “a lack of smooth pursuit. She had nystagmus at maximum deviation, and she also had nystagmus prior to 45 degrees,” and proceeded to explain what those terms mean. The officer concluded that Muir’s responses to the test were “significant indicators of impairment.”

Muir then cross-examined the officer regarding the test administration and the conclusions that could be drawn from the results. The officer agreed that some people have a natural nystagmus, and factors other than alcohol, such as lack of sleep or excessive caffeine, can cause it. He also testified that he decided to arrest Muir after he completed the field evaluations, including the HGN.

The defense called Dr. James Woodford to testify. After direct examination by Muir, the defense tendered Dr. Woodford as an expert “[i]n the area of chemistry and the effects of alcohol on the human body; also, the Georgia breath testing machine as it’s currently embodied in this state. And I’m going to ask questions concerning the interpretation of test results, comparative studies between blood and breath of men and women in that area.” After a lengthy voir dire by the State, during which Dr. Woodford stated, “I’m a chemist, and I know about medicinal chemistry, which is the chemistry of bodily functions. But I’m not a physiologist,” the trial court certified Dr. Woodford as an expert in chemistry. Muir then tendered Dr. Woodford as an expert on the Intoxilyzer 5000 and gender bias in breath alcohol testing. After further direct examination and voir dire by the State, the trial court recognized the witness as an expert in the areas of chemistry and studies on the use and accuracy of the Intoxilyzer machine (but not the workings of the machine itself).

During his testimony, Muir’s counsel asked Dr. Woodford a question about a study from Clemson University on “field sobriety evaluations,” including the HGN, and the error rate for experienced officers giving these tests. This question fell outside of the areas of expertise that he had been qualified in, and therefore he was not authorized to comment on the report, which would have been hearsay. See generally Johnson v. Knebel, 267 Ga. 853, 855 (1), 857 (3) (485 SE2d 451) (1997) (expert witnesses may render opinions on any matter within their realm of expertise); Cromer v. Mulkey Enterprises, 254 Ga. App. 388, 393 (2) (562 SE2d 783) (2002) (experts may not give opinions outside domain of science, art, or trade in which they are experts); Woods v. Andersen, 145 Ga. App. 492, 494 (3) (243 SE2d 748) (1978) (opinion of expert regarding scientific works pertaining to his profession amounts to something more than mere hearsay).

At this point in the colloquy, the court indicated that it also felt that expert testimony was not required or allowed regarding the field sobriety tests, because they are only based on common sense. But, as Muir correctly pointed out, the HGN is not based on common sense, but on science. See Hawkins v. State, 223 Ga. App. 34, 38 (1) (476 SE2d 803) (1996).

Muir then offered that Woodford was qualified to testify about the HGN test. Woodford testified that he had been certified in field sobriety evaluations, but did not explain whether the certification included the HGN test. This certification, Muir’s attorney explained, was the “same course that the officer was certified in.” Muir also made an informal proffer that the witness would testify about the “predictability or the reliability of an HGN and being able to predict the presence of alcohol. . . . And moreover, I might be inclined to ask him is there any correlation between the HGN and the predictability of impairment.” The attorney went on to say that there was “no predictability between the presence of the six clues on the HGN and a person’s actual impairment. . . and that there were no studies to show the contrary.

Simply put, the record contains no indication that the witness had any expertise in the area of the accuracy, reliability, or “predictability” of HGN tests to show whether someone is impaired. Being certified to perform the test falls far short of being an expert in these areas. One requires learning a technique and memorizing how to read the results. The other requires education, training, or experience sufficient to develop a “peculiar knowledge concerning some matter of science or skill to which his testimony relates.” Tifton Brick &c. Co. v. Meadow, 92 Ga. App. 328, 330-331 (1) (88 SE2d 569) (1955). Second, the witness admitted that he was not an expert in human physiology — “the branch of biology dealing with the functions and vital processes of living organisms or their parts and organs.” Webster’s New World Dictionary (3rd ed. 1988). Thus, the record contained no evidence that the witness had expertise regarding the extent to which the presence of the six clues on the HGN test revealed a person’s actual impairment. Third, there is only evidence that the witness was familiar with one report on the subject of HGN. Anyone can read one report on a topic; that does not make them an expert. Finally, there was no evidence that the witness had performed his own studies or that he had personal experience judging the reliability of HGN results.

Decided June 17, 2002

Reconsideration denied July 8, 2002

Spruell, Taylor & Associates, Billy L. Spruell, Melinda D. Taylor, for appellant.

Joseph J. Drolet, Solicitor-General, Katherine Diamandis, Erik B. Fortner, Assistant Solicitors-General, for appellee.

The decision to qualify a witness as an expert rests in the trial court’s discretion. Gulley v. State, 244 Ga. App. 629, 630 (1) (536 SE2d 530) (2000). Where the party offering the witness has failed to show that the witness has expertise in a particular subject, the court does not abuse its discretion by limiting testimony on that topic. See Cromer v. Mulkey Enterprises, supra.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: Blackburn, Chief Judge.

text:
    A02A0742.
    DOMAN v. STAPLETON.
    (568 SE2d 509)
   Blackburn, Chief Judge.

Alexander Doman, M.D., appeals from an order affirming an arbitration award and denying his request for declaratory relief. Doman, who submitted a demand for arbitration against his former legal counsel, Theodore Stapleton, lost on all issues presented during arbitration. The arbitrator expressly determined that Doman was not entitled to any damages or other relief. After the superior court affirmed the award, Doman filed this appeal in which he sets forth 16 purported errors. After review, we affirm.

The underlying dispute arose after Doman retained Stapleton on October 9, 1995, to recover a judgment of $832,447.62 that Doman had obtained against Julio Banderas, M.D., his former partner. See Banderas v. Doman. The employment contract between Doman and Stapleton specifically provided:

We have agreed to handle the above matter on the following contingency basis. In consideration for our services, it is agreed that our fee will be ten percent (10%) of any gross amount which may be collected for you with a fee cap of $70,000.00 plus all costs. ... In the event we are discharged by you for any reason prior to recovery being negotiated or a supersedeas bond is filed by the Defendants you agree to pay our firm our usual hourly fee of $160.00 per hour for all services performed thereto.

The engagement letter, however, was silent regarding Stapleton’s compensation in the event that Stapleton withdrew from representing Doman. On or about August 6, 1996, the parties modified their contract in writing by agreeing “to submit any unresolved dispute we may have in the future to binding arbitration under the American Arbitration Association.” The relationship between Doman and Stapleton deteriorated although, according to Stapleton, he “diligently pursued” Doman’s claims against Banderas in voluntary bankruptcy, involuntary bankruptcy, and fraudulent transfer actions.

On May 20, 1998, Doman filed a demand for arbitration against Stapleton in which he sought: (1) relief of his obligations under the employment contract; (2) the recovery of monies paid to other attorneys not affiliated with Stapleton; and (3) other damages to be determined. Stapleton answered and asserted a counterclaim seeking quantum meruit compensation for his employment. Despite Doman’s demand for arbitration, Stapleton allegedly continued to provide legal services on behalf of Doman.

In late September 1998, Doman and Stapleton entered a mutual agreement to withdraw their claims. By letter, drafted by Stapleton’s counsel and bearing the signature of Doman, the parties informed the American Arbitration Association (“AAA”) that Doman was withdrawing his request for arbitration and that Stapleton was withdrawing his counterclaim. The letter stated, “ [a]t this time there is no need for an arbitration.” Arbitration was postponed indefinitely.

No further action occurred until nearly a year later, when Doman attempted to sell certain property on which Stapleton had placed a lien to ensure recovery of his fees. On September 21, 1999, Doman notified AAA by letter that he was “hereby amending] my demand for arbitration.” Doman described the nature of the dispute as “Respondent and claimant disagree as to whether claimant owes Respondent, Stapleton, any monies for his legal services.” Doman sought a “[d]etermination that there is no money still owing to respondent by claimant as alleged by respondent.” He added, “I no longer assert a claim for damages due to legal negligence or malpractice and do not seek recovery of any money from respondent.” But, on November 25, 1999, Doman filed a demand for arbitration and described the nature of the dispute as follows:

Mr. Stapleton refused to abide by our contract to protect my interests by objecting to the debtor’s discharge of his debt to me when he filed bankruptcy and not using his agreed quote “best efforts to maximize (my) recovery.” Stapleton threatened to sue me in a letter dated 5/13/98 (enclosed). Stapleton withdrew from representing me in August 1998. THE CLAIM. $50,000.00 to be paid by Stapleton to me. Such sum included monies that I advanced to Stapleton and my attorney’s fees for legal services Stapleton would have performed if he had continued to represent me and not dropped me as a client.

Before the hearing, after reviewing the parties’ respective position statements, the arbitrator advised the parties that the attorney-client contract did not fit within the exclusion for employment contracts appearing at OCGA § 9-9-2 (c) (9). He observed, “To deny arbitration in this matter would be to reward form over substance. That being the case, I find that this matter is ripe for arbitration.” The arbitrator framed the issues in this way:

[T]he scope of arbitration shall be limited to construction of the contract between the parties, and a determination of the respective rights and liabilities of the parties. Specifically excluded from consideration are claims for damages based upon the alleged tortious conduct of respondent arising out of his filing of the attorney’s lien.

After a two-day hearing, the arbitrator found “ample evidence” that Doman “created a situation which would give Respondent sufficient justification in withdrawing from further representation of Claimant.” According to the arbitrator, the evidence included but was not limited to, “filing for arbitration against his attorney, his stated intent to reduce Respondent’s fees, and in general, the very antagonistic nature which infected the relationship virtually ab initio. In short, the attorney client relationship had become, in essence, adversarial.” The arbitrator determined that the fee issue was controlled by Sosebee v. McCrimmon In Sosebee, this Court held that when a contingent fee agreement exists but the client prevents the contingency from happening, the attorney is entitled to reasonable fees for the services rendered on behalf of his client. Id. at 707. The arbitrator decided:

[s]ince the contingency of the fee contract has not yet occurred, i.e. the recovery of money, there has been a failure of a condition precedent to the contract. The contract is therefore terminated. That being the case, the amount of attorney fees cannot be calculated under the terminated contract. Instead, Respondent’s rights to recover fees, if any, would be through an action for quantum meruit.

The arbitrator declined, however, to calculate the amount of reasonable attorney fees. Instead, the arbitrator found, “[g]iven that there was no counterclaim pending at the time of this Arbitration, notwithstanding the fact that evidence of that nature was presented, the Arbitrator lacks jurisdiction to make any award of this nature.”

After the arbitrator found against Doman on all issues, Staple-ton sought to have the award modified to include the recovery of his fees or, in the alternative, to have the fee issue set down for arbitration. Stapleton asked the arbitrator to reconvene arbitration to determine the amount Doman owed him. The arbitrator denied Staple-ton’s “motion for modification of award, or in the alternative, motion to set down matter for arbitration.”

Doman sought to have the award confirmed, but Stapleton opposed confirmation because the award did not include the recovery of his fees. Stapleton asserted that his claim for attorney fees had properly been before the arbitrator. He argued that he was entitled to rely on Doman’s arbitration demand and the arbitrator’s order regarding the scope of arbitration. Stapleton also pointed out:

[a]t the time Arbitrator Rosen made his award on March 15, 2000, the parties were uncertain regarding the amount of money Dr. Doman would ultimately receive from the estate of Dr. Julio C. Banderas, and therefore, the ultimate benefit Dr. Doman received from Mr. Stapleton’s work. The benefit received by Dr. Doman is now clear. Since the previous award, Dr. Doman’s recovery from the estate of Dr. Julio C. Banderas has become certain.

After the arbitrator issued the award but before its confirmation by the trial court, Stapleton filed a demand with the AAA for arbitration of his legal fees. The arbitrator subsequently denied Stapleton’s request for reconsideration of the award. The AAA agreed to arbitrate the fees issue and set a hearing date for November 28-29, 2000. On November 13, Doman filed a motion for confirmation of the award and a complaint for declaratory judgment, arguing, inter alia, that Stapleton was foreclosed from bringing a claim for which the merits had already been decided. Doman sought a judicial stay of further arbitration and alleged that further arbitration would be outside the scope of the arbitration clause, and that further arbitration would violate the principle of res judicata, estoppel by award, or collateral estoppel. In his brief in support of confirmation of the award, Doman argued that further arbitration would violate public policy as well as his rights to due process and equal protection.

The trial court affirmed the award in its entirety and refused to grant the declaratory relief sought by Doman to stop the pending arbitration of the fee dispute. In doing so, the court found that Stapleton had not been required to bring the attorney fees issue as a counterclaim in the first arbitration. The trial court noted that the parties had agreed to settle their disputes by arbitration and “nothing in the American Arbitration Association’s Commercial Arbitration Rules states that counterclaims are compulsory.” The trial court concluded that “in light of the arbitrator’s finding that he lacked jurisdiction to make any award, this Court finds that no decision on the merits of Stapleton’s claim has been made and he is thus not prohibited from pursuing his claim in the pending arbitration.”

After his efforts to thwart additional arbitration proved unsuccessful, Doman filed this appeal. Enumerating sixteen errors, Doman now contests the trial court’s order that consisted of one paragraph of nine sentences.

1. In five interrelated enumerations, Doman argues that the pending arbitration as to the amount that he allegedly owes Staple-ton for legal services is barred by the principles of res judicata, collateral estoppel, estoppel by award, and estoppel by judgment. We do not agree.

“Three elements are necessary to establish res judicata including: (1) the identity of the parties; (2) identity of the cause of action and (3) adjudication by a court of competent jurisdiction.” CenTrust Mtg. Corp. v. Smith & Jenkins, P.C., quoting McIver v. Jones Here, the matter of fees recoverable under quantum meruit has not been adjudicated by a court of competent jurisdiction. On the contrary, the arbitrator expressly found that he lacked jurisdiction to decide that issue.

Notwithstanding Doman’s arguments, Stapleton’s claim in quantum meruit has yet to be determined. Prior to arbitration, the arbitrator framed the scope of arbitration to include an interpretation of the contract between Doman and Stapleton and “a determination of the respective rights and liabilities of the parties.” This statement would seem to embrace Stapleton’s rights to and Doman’s liability relating to the fee agreement. Stapleton presented detailed evidence to the arbitrator, apparently without objection from Doman, as to the hours and efforts that he expended on behalf of Doman. As such, it would appear that Doman and Stapleton implicitly agreed to arbitrate their dispute over fees. See Akintobi v. Phoenix Fire Restoration Co. As Stapleton indicated by his post-hearing brief, he expected the award to include the “reasonable value of his legal services, including expenses,” which he calculated at $192,000 based on 1,200 hours billed at an hourly rate of $160. He also sought expenses in the amount of $7,338.02. After the award failed to reach the issue of his fees, Stapleton sought to have the award modified. The award plainly shows that the arbitrator refused to squarely address the fee issue after determining that he lacked jurisdiction to do so. Instead, after finding that the contract for legal services had been terminated, the arbitrator found that “the amount of attorney fees cannot be calculated under the terminated contract.” “[A]rbitration is a matter of contract, meaning that arbitrators derive their authority to resolve disputes only from the parties’ agreement.” Barge v. St. Paul Fire &c. Ins. Co. And, despite the fact that the parties had entered into an agreement that all disputes arising from the fee contract would be submitted to binding arbitration, the arbitrator decided, “Respondent’s rights to recover fees, if any, would be through an action for quantum meruit.” Since the parties’ contract explicitly required arbitration of all disputes, the arbitrator’s finding, coupled with the parties’ agreement, means that the fee issue must be resolved by further arbitration.

The Georgia Arbitration Code, moreover, obligates a trial court to confirm an award upon timely application by a party unless one of the four statutory grounds for vacating or modifying the award is established. Haddon v. Shaheen & Co. But even assuming arguendo that the arbitrator here erred in finding that he lacked jurisdiction to resolve the fee issue, no relief from this error could be obtained because none of the statutory grounds for opposing the confirmation of the award were in existence. See OCGA § 9-9-13 (b). Nothing on the face of the award, including the finding that the arbitrator lacked jurisdiction to determine attorney fees under the terminated contract, appears to be the result of corruption, fraud, or misconduct. See Greene v. Hundley. Nor does the award evince any partiality or overstepping on the part of the arbitrator. See Gilbert v. Montlick. Nor does any evidence indicate that the arbitrator’s decision was “completely irrational” or constituted a “manifest disregard of the law.” See Amerispec Franchise v. Cross. In these circumstances, Doman failed to show that arbitration of the unresolved issue of attorney fees in quantum meruit is foreclosed. Compare CenTrust Mtg. Corp., supra at 396 (2) (claim barred due to bank’s failure to raise the issue earlier). .

2. In two enumerations, Doman contends that the trial court erred in finding that Stapleton was not required to bring his counterclaim in the first arbitration. Doman argues that the trial court erred in finding that the AAA’s Commercial Arbitration Rules do not require compulsory counterclaims since those rules do not address compulsory counterclaims. Doman asserts that since the preclusion doctrines apply to arbitration proceedings, Stapleton’s failure to bring the matter when he could have done so foreclosed Stapleton from bringing it later. Doman claims that the dispositive issue is whether Stapleton was required to assert his fee claim as a counterclaim in the prior arbitration proceeding, in other words whether the fee issue constituted a compulsory counterclaim. See Centex-Rodgers Constr. Co. v. City of Roswell. While it is true that preclusion principles generally do apply to arbitration, and a plaintiff who has a cause of action is not permitted to split his single cause into successive litigation, that is not what occurred here. See Bennett v. Cotton (party to arbitration may not hold some claims in abeyance while submitting others to binding arbitration).

The AAA Rules expressly empower an arbitrator to determine his own jurisdiction. R-8 (a) of the Commercial Arbitration Rules provides: “The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.” Here, the arbitrator ruled on his own jurisdiction and found he could not make an award in the nature of quantum meruit. Stapleton unsuccessfully challenged that finding and sought to have the award modified to include his fees. In these circumstances, it was the arbitrator, not Stapleton, who bifurcated or split up the fee issue. Compare Centex-Rodgers Constr. Co., supra at 32 (2) (despite being ordered by the trial court to participate in the arbitration as a party, Centex-Rodgers chose to disregard the court’s order to its peril).

Doman’s reliance upon Banderas v. Doman, supra, is misplaced. In that case, unlike here, a party to arbitration was barred from bringing a claim that he failed to timely assert. In that case, this Court held that Doman was foreclosed from bringing an untimely claim for defamation that should have been raised while arbitration was pending on his claims for breach of contract and tortious interference. Here, however, the fee contract, including whether the agreement was breached, and if so by whom, and the rights and liabilities of the parties pertaining to that contract formed and continue to form the basis for arbitration.

It was Doman who moved for confirmation of an award which contained an explicit finding by the arbitrator that he lacked jurisdiction to make an award predicated on quantum meruit. If Doman wished to contest that jurisdictional finding, then he should have done so. Instead, he sought and obtained confirmation of the award, then tried to thwart Stapleton’s efforts to recover for his legal services.

As a final matter, we note that while the Georgia Arbitration Code authorizes a party to an arbitration agreement to petition the court for consolidation of separate arbitration proceedings, here, separate proceedings were not simultaneously pending. See OCGA § 9-9-6 (e). When Stapleton filed his arbitration demand in June 2000, the trial court could have ordered the consolidation of the two proceedings, since the award from the earlier proceeding had not yet been approved, but the trial court was not required to do so since the language under OCGA § 9-9-6 (e) is permissive. That section of the Code provides in pertinent part, “If the court orders consolidation under subsection (e) of this Code section, the court may exercise its discretion to deny consolidation of separate arbitration proceedings only as to certain issues, leaving other issues to be resolved in separate proceedings.” OCGA § 9-9-6 (h). In these circumstances, we find no error.

Decided June 13, 2002

Reconsideration denied July 8, 2002

Paul S. Weiner, for appellant.

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Terry O. Brantley, for appellee.

3. In light of our disposition in Divisions 1 and 2, the other issues enumerated as error by Doman are now moot.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        Banderas v. Doman, 224 Ga. App. 198 (480 SE2d 252) (1997).

       Stapleton claimed that he “filed seventeen actions including garnishments, attended or took seven depositions, and corresponded regularly with Doman.”

        Sosebee v. McCrimmon, 228 Ga. App. 705 (492 SE2d 584) (1997).

       Stapleton advised that
      Judge Pasky of the United States Bankruptcy Court has awarded Dr. Doman to receive $739,593.79 from the estate of Julio C. Banderas. See Exhibit “E.” The judge has further ordered that the trustee shall “escrow and retain ($300,000.00) in her bankruptcy account from any distribution to Dr. Doman,. . . pending a determination of the amount of attorney’s fees due from Dr. Doman to Theodore N. Stapleton.”

        CenTrust Mtg. Corp. v. Smith & Jenkins, P.C., 220 Ga. App. 394, 396 (2) (469 SE2d 466) (1996).

        McIver v. Jones, 209 Ga. App. 670 (434 SE2d 504) (1993).

        Akintobi v. Phoenix Fire Restoration Co., 236 Ga. App. 760, 761 (513 SE2d 507) (1999).

        Barge v. St. Paul Fire &c. Ins. Co., 245 Ga. App. 112, 113 (1) (535 SE2d 837) (2000).

        Haddon v. Shaheen & Co., 231 Ga. App. 596-597 (1) (499 SE2d 693) (1998).

       Doman conceded this point in Paragraph 15 of his motion for confirmation, where he stated,
      None of the four statutory grounds for vacating or modifying an award under OCGA § 9-9-13 (b) apply herein and Doman, a party to the arbitration, timely makes this application to confirm the award, and to have judgment rendered making the Award of Arbitrator, dated March 15, 2000, Case No. 30 E 104 00222 98, Exhibit F, made the judgment of this Court.

        Greene v. Hundley, 266 Ga. 592, 596 (3) (468 SE2d 350) (1996).

        Gilbert v. Montlick, 232 Ga. App. 91, 93 (2) (499 SE2d 731) (1998).

        Amerispec Franchise v. Cross, 215 Ga. App. 669, 671 (1) (452 SE2d 188) (1994).

        Centex-Rodgers Constr. Co. v. City of Roswell, 215 Ga. App. 30 (449 SE2d 631) (1994).

        Bennett v. Cotton, 244 Ga. App. 784, 787 (1) (536 SE2d 802) (2000).


text:
    A02A0744.
    DREW v. THE STATE.
    (568 SE2d 506)
   Smith, Presiding Judge.

Willie Drew was indicted on charges of terroristic threats and acts, simple battery, criminal trespass, and obstruction of a police officer. The prosecution nolle prossed the charge of criminal trespass. Drew was tried before a jury, which found him guilty of the remaining counts, and his motion for new trial was denied. New counsel was appointed for Drew, and counsel filed a motion for out-of-time appeal, which was granted. In his appeal, Drew raises the general grounds and challenges the trial court’s denial of his motion for a directed verdict of acquittal and the trial court’s ruling that he was not denied effective assistance of counsel. We find no error and affirm.

Construed to support the jury’s verdict, the evidence presented at trial showed that Drew had been living with the victim, his girlfriend, until shortly before the incident in question. On January 8, 1998, Drew went to the victim’s home. When the victim would not let him in, he knocked out a loose back window and crawled through. He and the victim argued, and Drew dragged the victim outside and down a hill and punched her in the face. The victim then returned to her kitchen with Drew because she “didn’t want to get beat up.” She testified that she did not remember if she called the police or a neighbor did, but she did remember that she asked her seven-year-old daughter to call the police and Drew stopped her. The police were called, however, and when an officer responded, Drew answered the door and told the officer there was “no problem.” But the victim stepped up behind Drew and informed the officer that there was, indeed, a problem. The officer observed the victim holding a bloody tissue to her nose. The victim told the officer what had happened. While the officer was speaking with the victim, Drew started to walk up the street. He ignored the officer’s instructions to come back, entered his car, and drove away.

The officer attempted to follow, but when he lost Drew he returned to the victim’s home to continue his investigation and report. He was explaining warrant and court procedures to the victim when the telephone rang. The officer testified that the victim indicated that the caller was Drew, motioned him over, and held the telephone between them so the officer could hear. The officer “clearly heard” Drew “curtly” state: “If you get a warrant on me, b—ch, I will kill you.” The victim then gave the officer the phone, and he spoke with Drew. The victim denied hearing the threat. After this evidence was presented, the State rested. The defense moved for a directed verdict of acquittal on the terroristic threats count, which was denied. The defense then rested without presenting evidence.

1. Arguing two enumerations together, Drew contends that the directed verdict of acquittal on the terroristic threats charge should have been granted because the evidence was insufficient to support his conviction on that charge. We do not agree.

OCGA § 16-11-37 (a) provides:

A person commits the offense of a terroristic threat when he threatens to commit any crime of violence . . . with the purpose of terrorizing another ... or in reckless disregard of the risk of causing such terror. ... No person shall be convicted under this subsection on the uncorroborated testimony of the party to whom the threat is communicated.

Drew argues that the statute’s requirement of corroboration was not satisfied because the victim did not corroborate the police officer’s testimony that Drew made a threat. But corroboration may be provided by circumstantial as well as direct evidence, and it may be slight evidence. “Slight corroboration of the circumstances during which a terroristic threat is uttered is all that is necessary to satisfy OCGA § 16-11-37 (a)’s requirement.” (Citation omitted.) In the Interest of C. S. G., 241 Ga. App. 37, 38 (1) (525 SE2d 106) (1999). And even when the threat is not directly heard by the victim, the statute applies. Shepherd v. State, 230 Ga. App. 426, 427 (496 SE2d 530) (1998). In this case, the victim’s testimony established the circumstances under which the threat was uttered: Drew’s violent behavior toward her that evening. This was sufficient corroboration for the officer’s testimony regarding the threat.

As in rape cases, the quantum of corroboration need not in itself be sufficient to convict, but need only be that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient for corroboration and the question of corroboration is one solely for the jury. If there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value.

(Citations and punctuation omitted.) Stone v. State, 210 Ga. App. 198, 199 (435 SE2d 527) (1993). Here, as in Stone, the corroborating evidence was sufficient even though the threat was not overheard and the denial of the motion for a directed verdict of acquittal was proper. Id.

2. Drew contends the trial court erred in denying his motion for new trial made on the ground that his trial counsel was ineffective. We find no merit in this contention.

Under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U. S. 668, 695-696 (104 SC 2052, 80 LE2d 674) (1984), a defendant claiming ineffective assistance of counsel must establish both that counsel’s performance fell below an objective standard of reasonableness and that a reasonable probability exists that, but for counsel’s deficiency, the result of the trial would have been different. Williams v. State, 258 Ga. 281, 286 (7) (368 SE2d 742) (1988). The defendant’s burden under the first prong of this test is heavy, because the defendant must overcome the strong presumption that trial counsel’s conduct fell within the broad parameters of reasonable professional conduct. Turner v. State, 273 Ga. 340, 342 (2) (541 SE2d 641) (2001). Drew has not carried his burden.

(a) He argues that counsel’s preparation was inadequate because he spent only ten minutes with him immediately before trial. But trial counsel testified at the hearing on the motion for new trial, and his testimony contradicted this assertion by Drew. Trial counsel testified that his first interview with Drew at the jail the day after he was appointed lasted at least thirty minutes, perhaps as long as one hour. Trial counsel also testified that he later met with Drew several other times. Trial counsel also filed various motions, obtained discovery, and investigated the facts. He interviewed the victim prior to trial and knew that her testimony would be helpful to the defense. He conducted effective cross-examination of the victim. The trial court properly found that Drew had not carried his burden on this allegation.

Decided June 12, 2002

Reconsideration denied July 8, 2002.

Daniel L. Henderson, for appellant.

Patrick H. Head, District Attorney, Amy H. McChesney, Andrew J. Saliba, Amelia G. Pray, Assistant District Attorneys, for appellee.

(b) Drew further alleges that he wanted to testify, but his trial counsel refused to allow him to do so. This was also contradicted by trial counsel’s testimony. Trial counsel testified that he discussed the matter with Drew during the trial. He admitted that he advised Drew that “he would be taking a substantial risk to take the stand in that case” and “suggested that he not testify.” But he also testified that was all he could do, that he could only “give my best recommendation.” The record does not establish that counsel prevented him from testifying, and it is well established that “the defendant, and not his attorney, makes the ultimate decision about whether or not to testify in his own behalf.” (Citations and punctuation omitted.) Dewberry v. State, 271 Ga. 624, 626 (2) (523 SE2d 26) (1999). The trial court correctly ruled that the decision not to testify was Drew’s, not that of his trial counsel.

Because Drew has not satisfied the first prong of the Strickland test, we need not address the second prong. Failure to establish either prong is fatal to Drew’s claim of ineffective assistance. Ward v. State, 242 Ga. App. 246, 248 (529 SE2d 378) (2000).

Judgment affirmed.

Eldridge and Ellington, JJ, concur.

       In addition to the motion for new trial filed by trial counsel, Drew filed a pro se motion for new trial and an amendment to his pro se motion.


text:
    A02A0746, A02A0747.
    ADKINS v. KNIGHT; and vice versa.
    (568 SE2d 517)
   Barnes, Judge.

A jury awarded Ann Marie Adkins $50,000 in her personal injury suit against Randy Edward Knight, and she appeals the trial court’s order allowing Knight to set off Adkins’ $35,000 settlement with her uninsured motorist carrier. Knight cross-appeals, arguing that if we reverse in Adkins’ appeal and do not allow the set-off, then he should have been able to introduce evidence of the $35,000 settlement to the jury. For the reasons that follow, we reverse the trial court’s order and judgment setting off the settlement amount against the verdict. As to Knight’s appeal, we affirm the trial court’s grant of Adkins’ motion in limine to keep out evidence of the settlement with her UM carrier.

A truck owned by L & L Trucking Company ran a stop sign and hit Adkins’ vehicle. The truck driver fled the scene, and Adkins subsequently sued L & L Trucking and Knight, contending that Knight was the driver. She also served her insurance company, Georgia Farm Bureau, as a potential UM carrier. Knight responded that he was not the driver, and his defense at trial was that someone else was driving the truck when it hit Adkins’ car.

Adkins wrote the trial court on January 11, 2001, explaining that her insurance company had just disclosed that she had $90,000 UM coverage instead of $15,000, and that she anticipated amending the complaint to add John Doe as a defendant. Adkins thereafter forwarded to the court a proposed consent order, signed by all parties, allowing the amendment, but the order was not signed. Knight contends that Adkins announced at the pretrial conference that she no longer wanted to add a John Doe defendant and had settled with her UM carrier. He then moved for an order adding John Doe as a defendant. Adkins objected to Knight’s request to add the defendant, contending that the trial court declined at the pretrial conference to add the additional defendant, and moved the court to exclude from trial all evidence of the UM settlement.

The trial court granted Adkins’ motion in limine, excluding at trial evidence of her UM coverage or settlement, but further determined that it would set off any jury verdict by the UM settlement. At trial, although Knight contended he was not driving the truck that hit Adkins, the jury found for Adkins against Knight and awarded her “damages in the amount of $50,000.” The trial court then set off the $35,000 UM settlement and entered judgment for Adkins in the amount of $15,000 plus costs.

Case No. A02A0746

Adkins contends on appeal that the trial court erred in setting off her UM settlement against the jury verdict, because the UM carrier and Knight were not joint tortfeasors, the settlement was contractual in nature, and the set-off violated collateral source rules. Knight responds that the set-off was proper because an injured party may only recover once from a single injury.

Joint tortfeasors act negligently either in voluntary, intentional concert or separately and independently, to produce a single indivisible injury for which “a rational basis does not exist for an apportionment of damages.” Gilson v. Mitchell, 131 Ga. App. 321, 330-331 (205 SE2d 421) (1974), aff’d, Mitchell v. Gilson, 233 Ga. 453 (211 SE2d 744) (1975). Adkins’ insurance company did not act in any way to produce Adkins’ injury. Further, Knight’s theory of defense was not that he and the John Doe acted to produce a single injury, but that the John Doe was the tortfeasor and not Knight.

“A tortfeasor can not diminish the amount of his liability by pleading payments made to the plaintiff under the terms of a contract between the plaintiff and a third party who was not a joint tortfeasor.” Thompson v. Milam, 115 Ga. App. 396, 397 (154 SE2d 721) (1967).

While it is true that the acceptance of payment by a joint tortfeasor as full settlement will bar an action against anyone jointly liable, in the present case the plaintiff received the funds from a source which was in no way connected with the defendant. Under these circumstances there was no violation of the rule of torts that the plaintiff is not entitled to a double satisfaction for his injuries. [Cits.]

Id.

While evidence of a settlement with a UM carrier who answers in the name of a John Doe defendant is admissible in a trial against Doe’s joint tortfeasor, Crews v. Doe, 192 Ga. App. 201, 202 (384 SE2d 267) (1989), in the case before us, John Doe was not a named party. Adkins’ UM carrier was a third-party stranger to this lawsuit, not a joint tortfeasor who answered for John Doe. While the UM carrier may have a right under its contract of insurance or the terms of its release to recover from a tortfeasor, the tortfeasor has no reciprocal claim against the injured party’s insurance company. See State Farm &c. Ins. Co. v. Bd. of Regents &c. of Ga., 226 Ga. 310 (174 SE2d 920) (1970) (workers’ compensation carrier not entitled to set off UM payments, because made under contractual obligation rather than as tort damages); Yates v. Dean, 244 Ga. App. 333 (535 SE2d 335) (2000) (UM carrier entitled to set off medical payments it made to plaintiff against John Doe verdict it would also be liable for; policy itself provided for nonduplication of payments).

Knight argues that Adkins unfairly reneged on her agreement to add a John Doe defendant and thus exposed him to increased risk because the jury would be less likely to rule against him if it could rule against another existing defendant. Knight has cited no authority for the proposition that such an agreement cannot be withdrawn and has not argued that the trial court erred in denying his motion to add Doe as a party defendant. Additionally, that order does not appear in the record.

Decided June 18, 2002

Reconsideration denied July 8, 2002

Vansant, Corriere & McClure, Alfred N. Corriere, for appellant.

McCall, Finney & Phillips, Earl McCall, for appellee.

Therefore, as the trial court erred in setting off Adkins’ $35,000 settlement with her UM carrier against the jury’s verdict against Knight, the judgment of the trial court is reversed, and the trial court is directed to issue a new judgment in the full amount of the jury verdict.

Case No. A02A0747

Knight argues in his cross-appeal that, if we conclude that the trial court erred in setting off the settlement against the verdict, then the trial court erred in refusing to allow him to present evidence of the settlement during trial. We disagree. As discussed previously, the UM carrier was not a joint tortfeasor, and therefore the trial court did not err in declining to admit evidence of the settlement during Knight’s trial. DeKalb County v. Orwig, 196 Ga. App. 255, 260 (5) (395 SE2d 824) (1990) (trial court did not err in excluding evidence of co-defendant’s settlement and release, because parties were not joint tortfeasors), rev’d on other grounds, 261 Ga. 137 (402 SE2d 513) (1991).

Judgment reversed with direction in Case No. A02A0746. Judgment affirmed in Case No. A02A0747.

Pope, P. J., and Ruffin, J., concur.


author: Johnson, Presiding Judge.

text:
    A02A0114.
    BROCK et al. v. ALLEN et al.
    (568 SE2d 536)
   Johnson, Presiding Judge.

Walter and Opal Brock filed the underlying suit nearly four years after being informed that the home they purchased had substantial termite damage. The Brocks sued Tony Allen d/b/a Complete Pest Control, who inspected the home and provided a termite inspection report at the closing of their purchase of the home. The Brocks alleged, in essence, that Allen negligently inspected the home and underreported termite infestation and damage. The Brocks appeal from the grant of summary judgment to Allen.

The record shows the following: The real estate agreement between the Brocks and the sellers provides that the seller is to have the home inspected by a pest control operator and that, if visible evidence of active or previous infestation is indicated, the seller agrees, prior to closing, to treat the infestation, correct structural damage, and provide documentation evidencing correction of the damage, and/ or provide documentation indicating there is no damage resulting from any previous infestation. It further provides that the seller is to provide at closing a letter stating that the home has been inspected and is free from visible evidence of active infestation caused by termites or other wood-destroying organisms.

At the closing, Opal Brock (the only Brock present at closing) was given a copy of the termite inspection report. The report indicated that there was previous infestation by subterranean termites and wood-decaying fungus, and some minor damage, that the inspector could not access all areas of the property, that a graph showing damage was attached (though no such graph was actually attached), and that no further inspection was warranted. The report also contained the following clause:

If visible evidence of active or previous infestation is reported it should be assumed that some degree of damage is present and a diagram identifying the structure(s) inspected and showing the location of such evidence must be attached to this form. Evaluation of damage and any corrective action should be performed by a qualified inspector approved by the purchaser and lending agency.

(Emphasis in original.) Opal Brock read the inspection report and signed it, acknowledging its receipt. The parties closed the transaction.

Later that day, Opal Brock reviewed the inspection report more closely and noticed that it indicated that the property had previous termite infestation and damage. A few days later, the Brocks hired another termite inspector, who reportedly found major termite damage and told the Brocks they should hire a building inspector. A third inspector found substantial damage caused by termites and other wood-destroying organisms. A fourth inspector found signs of active powder post beetles not listed on Allen’s report and conditions conducive to infestation. An entomologist inspected the property and concluded that farther inspection was needed, contrary to what Allen indicated on his report. This expert concluded that Allen was negligent in his inspection and failed to meet the standard of care required by pest control professionals.

In their complaint, the Brocks alleged that Allen committed fraud, breach of contract, and professional malpractice in conducting the inspection and preparing the report. Allen moved for- summary judgment, arguing that the Brocks waived their breach of contract claim by proceeding to closing despite having notice of a termite problem, that the evidence did not support a fraud claim, and that the malpractice claim was barred by the two-year statute of limitation applicable to tort claims.

The trial court granted summary judgment to Allen, holding that the two-year statute of limitation on any tort claim asserted by the Brocks had expired, that the fraud claim was unsupportable given the absence of justifiable reliance on Allen’s representations, that any breach of contract claim was waived when the Brocks closed the transaction knowing that the termite letter did not conform with contract requirements, and that OCGA § 9-11-9.1 did not permit a professional malpractice action to be brought against an exterminator.

The Brocks appeal from the grant of summary judgment to Allen, challenging the trial court’s ruling that a professional malpractice claim cannot be brought against an exterminator, and the court’s implied ruling that the Brocks’ malpractice claim was barred by the two-year statute of limitation which governs tort claims. We agree with the Brocks that a malpractice action may be maintained against an exterminator, and that a four-year statute of limitation applies to their malpractice claim insofar as it asserts a contract-based cause of action. Moreover, we hold that the trial court erred in finding that the Brocks waived their breach of contract claim against Allen by proceeding to closing. Accordingly, we reverse the trial court’s grant of summary judgment to Allen insofar as it concerns these issues.

1. The Brocks contend, and Allen concedes, that the trial court erred in holding that OCGA § 9-11-9.1 does not allow professional malpractice actions to be filed against exterminators. In fact, a professional negligence action can be maintained against an exterminator. The trial court’s holding in this regard, therefore, was erroneous.

2. A single act or course of conduct may constitute not only a tort, but also a breach of contract. We agree with the Brocks that the professional malpractice case asserted against Allen sounds in both contract and tort. Thus, while the trial court correctly held that the two-year statute of limitation expired as to any tort-based claims, to the extent the malpractice claim raises breach of contract issues, a four-year statute of limitation applies. Because the Brocks filed the action before the four-year limitation period expired, the contract-based malpractice claim was timely.

3. The trial court’s grant of summary judgment was also based on its finding that the Brocks waived any breach of contract claim they had against Allen because, at the time of closing, Opal Brock knew the termite letter did not conform with the sales contract requirements, but chose to close anyway. The Brocks have not appealed the trial court’s ruling on the waiver issue and make no argument on appeal regarding waiver. But, because the trial court erroneously based its decision in part on the principle of waiver, it is essential that we consider the issue here.

Under Georgia law, a buyer who proceeds to closing knowing that the seller has not fulfilled his obligations regarding a termite inspection waives any rights he may have had against the seller pertaining to the termite letter. At the time of closing, the Brocks knew that the letter did not conform with the contract’s termite clearance requirements. Thus, they waived any termite-related rights they may have had against the sellers under the contract.

However, Allen cites no cases in which a court has applied this waiver-by-closing rule in favor of the pest control company that performed the inspection. We decline to extend the rule applicable to sellers to pest control operators.

This appeal primarily involves two contracts. One is the sales contract between the Brocks and the sellers. Another is the inspection contract between the sellers and Allen. Although the Brocks are not express parties to the inspection contract, they are third-party beneficiaries of and privy to that contract. As such, the Brocks are permitted to sue Allen directly for his failure to perform the contract.

Decided June 26, 2002

Reconsideration denied July 9, 2002

Donna S. Golden, Christopher L. Casey, for appellants.

Carlock, Copeland, Semler & Stair, Charles E. Rogers, Cruser & Mitchell, Joseph R. Cruser, Jennifer M. McBath, Freeman, Mathis & Gary, Philip W. Savrin, Brian K. Schumacher, for appellees.

In this case, there was evidence acquired after the closing indicating that Allen did not adequately inspect the property. Even the most prudent buyer would not necessarily know at the time of closing that the termite inspection was inadequately performed or that the report presented was inaccurate. The waiver of a right must be made voluntarily and with knowledge of the right being waived. And a waiver as to one party does not necessarily amount to a waiver as to all parties. While the trial court did not err in granting summary judgment to the sellers, it did err in doing so in favor of Allen.

Judgment reversed and case remanded.

Blackburn, C. J., and Miller, J., concur.

       The Brocks also sued several other parties involved in the sale, but they do not appeal the trial court’s judgment as to the other defendants.

       See, e.g., Fender v. Adams Exterminators, 218 Ga. App. 62 (1) (460 SE2d 528) (1995).

       See Getz Svcs. v. Perloe, 173 Ga. App. 532, 534 (2) (327 SE2d 761) (1985).

       The Brocks alleged that Allen was a licensed pest control agent, that he was under an obligation and duty to insure that the home was properly inspected, that he was obligated to make a complete and accurate description of the premises regarding wood infestation and decay, that he was negligent in his duty to accurately and completely report the condition of the premises, that his negligence constituted malpractice under the standards of conduct in his profession, and that the Brocks were in privity of contract with Allen.

       See OCGA § 9-3-25; Harrison v. Beckham, 238 Ga. App. 199, 200 (1), n. 2 (518 SE2d 435) (1999).

       See Harrison, supra.

       See generally Dodd v. City of Gainesville, 250 Ga. App. 722, 724 (3) (551 SE2d 62) (2001).

        Westminster Holdings v. Weatherspoon, 237 Ga. App. 819, 821 (1) (517 SE2d 80) (1999) (buyer waived termite damage repair requirement where seller did not provide documentation of repair as required by agreement prior to closing); Leeuwenburg v. Clark, 228 Ga. App. 615 (492 SE2d 263) (1997) (sellers’ duty to repair damage waived where buyer failed to demand before closing documents showing repair as required by contract); Davi v. Shubert, 168 Ga. App. 420, 421 (A) (309 SE2d 415) (1983) (buyers waived rights against sellers when closed sale after receiving letter notifying them of termite problem).

       See Westminster Holdings, supra at 821 (1); Leeuwenburg, supra at 616.

        Hutcherson v. Vanguard Exterminators, 207 Ga. App. 331, 332 (427 SE2d 828) (1993); Perloe v. Getz Exterminators Svcs., 163 Ga. App. 397, 398 (294 SE2d 640) (1982); Buchanan v. Ga. Boy Pest Control Co., 161 Ga. App. 301, 303 (1) (287 SE2d 752) (1982).

       See Perloe, supra, 163 Ga. App. at 398.

       See Providence Constr. Co. v. Bauer, 229 Ga. App. 679, 681 (1) (494 SE2d 527) (1997).

       See generally MultiMedia WMAZ v. Kubach, 212 Ga. App. 707, 718 (443 SE2d 491) (1994) (Beasley, P. J., concurring specially) (waiver of privacy right for one purpose and in favor of one person does not amount to waiver for all purposes or by all persons and classes).


author: Pope, Presiding Judge.

text:
    A02A0193.
    THE STATE v. FREDERICKS.
    (568 SE2d 489)
   Pope, Presiding Judge.

Edward Wayne Fredericks was successful in obtaining a reduction to his criminal sentence more than six years after he pleaded guilty to eight counts of public indecency. The sole question before us is whether the court had the authority to modify the sentence after so much time.

On May 5, 1995, Fredericks pleaded guilty to the eight counts. He was sentenced to serve a total of 20 years. Within the next 30 days, Fredericks and his attorney each filed separate motions for reconsideration of the sentence; however, neither attached a rule nisi to the motion. The motions remained unaddressed for years. Then on July 20, 2000, the court held a hearing on the issue of whether Fredericks had been sentenced twice for the same charge. On January 26, 2001, the court entered a new sentence for that reason, nunc pro tunc, reducing the sentence to a total of 15 years to serve.

On June 7, 2001, the court held another hearing to reconsider the sentence and, in an order dated August 21, 2001, reduced Fredericks total time to serve to seven and one-half years. No reason was given in the order for the reduction. Both the January 26 order and the August 21 order were entered years after the end of the term in which Fredericks was originally sentenced. The State appeals only the August 21 order. At oral argument the State conceded that the court had jurisdiction to modify the sentence in January 2001 on the grounds that part of the original sentence was void.

“ ‘Georgia courts have long held that while a trial judge loses the inherent right to modify a judgment after the term expires, a motion made during the term serves to extend the power to modify. (Cit.)’ Porterfield v. State, 139 Ga. App. 553, 554 (228 SE2d 722) [(1976)].” Doby v. Evans, 258 Ga. 777 (2) (373 SE2d 757) (1988). See also Platt v. State, 200 Ga. App. 784 (409 SE2d 878) (1991).

The State argues that such a motion must have a rule nisi attached as an “absolute prerequisite to extend the sentencing term ... to allow the trial court to properly consider [the motion] beyond that period of time.” The State cites State v. Bradbury, 167 Ga. App. 390, 392 (4) (306 SE2d 346) (1983), in support. Our review of the applicable cases indicates that a motion will suffice to extend the term and that Bradbury merely indicates that an order setting a hearing outside of the term would also function to extend the term.

Several cases addressing motions for new trial hold that an order setting the matter for hearing at a time outside of the term will allow the trial court to retain jurisdiction of the matter past the end of the term. As stated in Herz v. Frank & Adler, 104 Ga. 638, 640 (30 SE 797) (1898): “An order, taken in term, to hear in vacation a motion for a new trial, operates, in our opinion, to keep the regular term of the court open as to that particular case until it is passed upon by the judge.” See also Blakely Hardwood Lumber Co. v. Reynolds Bros. Lumber Co., 173 Ga. 602, 607 (2) (160 SE 775) (1931); Yarborough v. State, 59 Ga. App. 893 (2 SE2d 510) (1939) (physical precedent only).

But, most cases reveal that the key consideration is whether proceedings on the matter are begun during the same term as the judgment, suggesting that an order setting a hearing in the next term is not required. See, e.g., Ammons v. Bolick, 233 Ga. 324, 325 (1) (210 SE2d 796) (1974); Maxwell v. Cofer, 201 Ga. 222, 226 (39 SE2d 314) (1946); Platt v. State, 200 Ga. App. at 784 (1); Howard v. State, 194 Ga. App. 331 (1) (390 SE2d 415) (1990); Burns v. State, 153 Ga. App. 529 (265 SE2d 859) (1980); Porterfield v. State, 139 Ga. App. at 554. Indeed, in Platt, the sole basis given for extending the term of court was the State’s motion for reconsideration of the trial court’s decision to grant a motion for new trial; no order is mentioned. Platt, 200 Ga. App. at 784-785.

Decided May 10, 2002

Reconsideration denied July 9, 2002.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellant.

Fleming, Blanchard, Jackson, Ingram & Floyd, Maureen O. Floyd, for appellee.

Two separate cases issued by this Court state both versions of the rule and lead us to the conclusion that the sole requirement for extending the term, in this setting, is that proceedings have begun on the matter within the original term, and that either a motion or an order setting a matter outside the term shall suffice. See State v. Bradbury, 167 Ga. App. at 390; State v. James, 211 Ga. App. 149, 150 (2) (438 SE2d 399) (1993).

Because Fredericks filed a motion to reconsider sentence within the same term that he was sentenced, the trial court maintained jurisdiction of that issue beyond the term in which Fredericks was sentenced. The State’s constitutional argument is not enumerated as an error and was not raised below, and therefore we will not consider it here. Meders v. State, 260 Ga. 49, 54 (2) (b) (389 SE2d 320) (1990) (constitutional issue not raised below is not preserved for appeal).

Judgment affirmed.

Ruffin and Barnes, JJ., concur.