text:
    A01A1299.
    CONWAY et al. v. ROMARION et al.
    (557 SE2d 54)
   Pope, Presiding Judge.

Thomas and Victoria Conway filed suit against Roberto and Linda Romarion asserting that the Romarions concealed extensive pet damage to their home prior to the Conways’ purchase of the house. The trial court granted summary judgment to the Romarions, and the Conways appeal. We reverse.

On appeal, we must view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the Conways as nonmovants. Cotton v. NationsBank, 249 Ga. App. 606, 607 (548 SE2d 40) (2001). Viewed in that light, the evidence shows that from July 1992 to July 1999, when they sold their house, the Romarions owned as many as five to six cats at one time, three to four of which were male. From July 1992 until approximately March or April 1995, the cats had the complete run of the house, and the Romarions concede that the cats occasionally would defecate or urinate outside their litter box. In addition, the male cats sprayed the walls or furniture approximately two to three times per month. They also admit that the odor of cat urine and spray could be detected upstairs from time to time.

In May 1995, the Romarions decided to confine all but one of the female cats in the basement. That arrangement was continued until May 1999 when the Romarions placed their house on the market and all but one of the cats was kept outside. The Romarions concede, however, that when the cats were kept in the basement, they still would occasionally get upstairs. And the cats continued to occasionally urinate, spray and defecate on the basement carpet, furniture or walls.

In 1995, Roberto Romarion detected a stain on the dropped tile ceiling in the basement. Upon investigation, he discovered that the stain was cat urine and that the cats had defecated and urinated in the dropped ceiling. As a result, Roberto Romarion replaced 50 four-foot square tiles that had been damaged by cat droppings. He then put up chicken wire to prevent the cats’ access to the ceiling. Nevertheless, the cats occasionally still found a way to get into the dropped ceiling, and the Romarions had to take additional measures in an attempt to block their access.

During most of the period that the Romarions owned the house, the basement maintained an odor of cat urine. Roberto Romarion stated that he, in fact, avoided the basement ás often as possible due to this odor. The Romarions’ real estate agent detected the odor when she visited the house in 1999 prior to listing the house and advised them to take measures to clean up the smell. The Romarions had the carpet cleaned and removed furniture that had been sprayed by the cats.

The Conways first visited the house in July 1999, and at that time, the Romarions owned five cats. Prior to closing, the Conways visited the house approximately four to five times. During those visits they and their real estate agent observed only one cat in the unfinished basement area and two cats, outside. Roberto Romarion told Thomas Conway that they only had outside cats. The Romarions’ real estate agent also told Victoria Conway that the Romarions’ cats were outside cats, although the agent was aware that the cats had previously been kept in the basement.

Neither the Conways nor their real estate agent ever detected any cat-related odor or damage prior to the closing on the house. Roberto Romarion did tell the Conways that he had installed the chicken wire after he discovered the cats had been getting up into the ceiling, but he never told them that the cats had urinated or defecated there. He also pointed out a cat door, which he explained they had closed off because raccoons had been getting into the basement. The Conways and their real estate agent also noticed that the Romarions kept their house cold, so cold that condensation appeared on the house’s windows.

A few days after the closing on the property and after the air conditioning in the house had been off for a while, the Conways began to notice the odor of cat urine. Victoria Conway stated that the smell in the basement was so bad it burned her eyes and throat. The Conways removed the carpets throughout the house, but the smell persisted. They then discovered evidence of cat urine and feces in the dropped tile ceiling and baseboards in the basement. When they removed a ceiling tile to investigate, feces fell down on their heads, and they saw that the metal rails supporting the tile were rusted. The Con-ways also discovered evidence that the cats had gotten into the house’s HVAC system and urinated. As a result, the Conways removed the dropped ceiling and portions of the HVAC system and had to have repairs made to the HVAC.

In addition, the Conways spent in excess of $5,000 to have an industrial odor control company remove the odors in the upstairs portion of the house and the garage. Using blacklight and with the assistance of the odor control company, the Conways began to discover evidence of cat markings throughout the house. They replaced portions of the removed upstairs carpet, but they made no repairs to the basement other than the HVAC.

Approximately one month after the closing, the Conways wrote the Romarions notifying them that they had discovered numerous defects in the house and that they wished to rescind the parties’ purchase and sale agreement. The Romarions did not agree to rescind, and the Conways filed suit slightly more than two months later. The complaint asserted a claim of fraud and sought $32,000 in damages. The Romarions moved for summary judgment, and the trial court granted the motion finding that the Conways had waived their claim of rescission and failed as a matter of law to exercise due diligence to discover the alleged defects in the house.

1. The Conways assert error in the trial court’s finding that they had waived their right to rescind the parties’ agreement and in denying them the right to amend their complaint to assert a specific claim of rescission. We agree.

A purchaser who claims that he was fraudulently induced to enter into a sales contract has an election of remedies. The first option is to rescind the contract after discovering the fraud and sue in tort to recover the purchase price and any additional damages from the fraud. Alternatively, the purchaser may elect to affirm the contract and sue for damages resulting from the fraud. This, too, is a tort action, but it flows from the underlying contract and is subject to any defenses based upon that contract. Keller v. Henderson, 248 Ga. App. 526, 528 (2) (545 SE2d 705) (2001).

In order to effect a rescission, the purchaser must act promptly and adhere to the intent to rescind or risk waiver of his claim: “An announcement of the intent to rescind the contract must be made in a timely fashion, as soon as the facts supporting the claim for rescission are discovered. Moreover, the aggrieved party must adhere to the intent to rescind and may waive any claim for rescission by failing to do so.” Buckley v. Turner Heritage Homes, 248 Ga. App. 793, 795 (2) (547 SE2d 373) (2001). Rescission, as a forfeiture of rights under an otherwise valid contract, is not favored under the law, and courts are quick to find that the right to rescind has been waived. Holloman v. D. R. Horton, Inc., 241 Ga. App. 141, 146 (3) (524 SE2d 790) (1999). Waiver generally is found where the intent to rescind is not asserted in a timely fashion or where the purchaser has taken some action inconsistent with the intent to rescind, such as making improvements to the property or taking out a mortgage on the property.

Here, the Conways asserted the intent to rescind in a timely fashion, less than one month after closing. And the evidence shows that the repairs the Conways made to the house were only those necessary to make it liveable until the dispute could be resolved. They removed the stained and damaged items — carpet, ceiling tile, baseboards and drywall — and took active steps to remove the odors only from the upstairs portion of the house and the garage. No repairs were made to the basement other than the HVAC, which emitted cat smells into the upstairs. There is no evidence of any cosmetic repairs unrelated to the alleged damage.

Nevertheless, the trial court found that the Conways had waived their right to rescind by suing “on the contract for damages,” citing only the Holloman case. In that case, however, the Hollomans waited one year after closing before presenting the homebuilder with a list of 169 defects in the house and demanding repairs. Three months later, they sent a letter announcing the intent to rescind the contract. Approximately two months later, the Hollomans filed suit asserting claims for breach of contract and Fair Business Practices Act violations against the homebuilder, in addition to claims of fraud, negligence and Georgia Racketeer Influenced & Corrupt Organizations Act violations against the builder and others. Holloman, 241 Ga. App. at 146 (3). Although the complaint contained a prayer for rescission, this Court found that the prayer was not a part of the cause of action. Id. The Holloman opinion concluded that the complaint had affirmed the contract and waived any claim for rescission. Id. at 146-147.

We find the Conways’ actions and complaint are distinguishable from those of the Hollomans. As previously noted, the Conways promptly indicated their intention to rescind. And although their complaint does not assert a separate claim for rescission, neither does it express a clear election to affirm the purchase and sale agreement. There is no claim for breach of contract as there was in the Holloman complaint. Rather, the complaint asserts only a claim of fraud, with additional counts for attorney fees and punitive damages. It also asserts that the Conways had rescinded the purchase and sale agreement, noting that the Romarions had rejected their tender. The only exhibit to the complaint is the Conways’ letter of rescission.

And while the trial court makes note of the absence of a claim or prayer for rescission, we find that the allegations of fraud in the complaint could also support a claim of rescission. We acknowledge that the complaint does assert that the Conways have been damaged by the cost of repair, but that assertion alone should not defeat their claim of rescission as a matter of law. And while the complaint makes no prayer for rescission, the Holloman court itself noted that “the prayer is not an allegation in the complaint which requires an answer (OCGA § 9-11-8 (d)) and is not part of [the] plaintiffs’ cause of action.” (Citations and punctuation omitted.) 241 Ga. App. at 146 (3).

The better practice, of course, would have been to assert a separate claim for rescission in the complaint, but under these circumstances we cannot say that the Conways have expressed a clear intent to affirm the purchase and sale agreement. Accordingly, we find that the trial court erred in disallowing the Conways’ amendment to formally assert a rescission claim. See OCGA § 9-11-15 (c). Nevertheless, to succeed on that claim, the Conways will have to prove that they have taken no action contravening their intent to rescind. See Akins v. Couch, 271 Ga. 276, 278 (2) (518 SE2d 674) (1999) (purchaser’s intent is an issue of fact for the jury).

2. Additionally, we note that the Conways are not bound by the merger clause in the purchase and sale agreement in asserting their claim for rescission. If the Conways were found to have waived their claim for rescission, however, they would be bound by the contract terms. See Sudler v. Campbell, 250 Ga. App. 537, 540 (1) (550 SE2d 711) (2001). But the merger clause does not necessarily bar all claims for fraud. “A merger clause such as the one in the present case prevents a party from claiming reliance upon a representation not contained in the contract.” (Footnote omitted; emphasis supplied.) Fann v. Mills, 248 Ga. App. 460, 464 (2) (546 SE2d 853) (2001). It does not prevent a claim of fraud arising from representations in the contract itself. Id. Accordingly, to the extent that the Conways assert that the disclosure statement, which was incorporated into the parties’ agreement, or some other representation in the contract itself is fraudulent, such a claim would not be barred by the merger clause.

3. The Conways next argue that the trial court erred in finding that they failed to exercise due diligence as a matter of law. Once again, we agree.

The issue of whether a purchaser has acted with the requisite due diligence is generally a question for the jury. Akins, 271 Ga. at 277. In this case, the trial court found that the Conways had failed to exercise due diligence as a matter of law based upon a number of factors. The trial court first found that the damage to the carpet, walls and baseboard was readily observable. The trial judge also found that the Conways were on notice of the problems with the dropped basement ceiling because they had cats of their own, they observed the cat door and they were told that the cats had gotten into the ceiling previously The trial court further noted that access to the dropped ceiling was readily accessible. The trial court relied upon Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74 (441 SE2d 421) (1994), to support these conclusions.

But we find that each of the factors noted by the trial court simply raises a jury issue in light of other evidence, distinguishing this case from Ben Farmer. In that case, the property at issue was “vacant residential property in obvious dilapidated condition” with many major defects, which the purchaser agreed to buy “as is.” 212 Ga. App. at 76. This Court found that these circumstances put the purchaser “on notice to exercise a heightened degree of diligence in inspecting the house.” Id. at 77. After closing, the purchaser discovered fire damage in the attic. The evidence showed that the attic was readily accessible through a hole in the ceiling and that merely shining a flashlight through the access hole would have revealed the fire damage. Id. at 76. Under those circumstances, we found that the purchaser had failed to exercise due diligence. Id. at 77.

Here, in contrast, there was nothing to put the Conways on the heightened degree of diligence required of the purchaser in Ben Farmer. Neither the Conways nor their real estate agent noticed any pet damage or odor prior to the closing, and the Conways suggest that the damage may have been concealed by the Romarions’ furnishings. The evidence also raises an issue as to whether the Romarions took active steps to conceal evidence of pet damage. The Conways testified that after the Romarions moved, they discovered a number of cleaners and chemicals designed to mask pet odors. And during their pre-closing visits, the house was kept so cold that condensation appeared on the windows, which the Conways assert was to aid in masking the odor. In addition, the Conways were told on two separate occasions that the cats were outdoor cats. Victoria Conway stated that while she did observe carpet stains in the circulation patterns, in the absence of an odor, she did not observe anything that led her to believe that more than general maintenance and cleaning would be required.

Decided November 20, 2001

Lefco & Blumenthal, Stanley M. Lefco, for appellants.

Further, while the Conways themselves had five cats, they testified that they had never had a problem with the cats not using their litter box. Victoria Conway testified that while Roberto Romarion pointed out the cat door, he told her that it had been closed to keep raccoons out. Similarly, while Roberto Romarion told the Conways that the cats had gotten into the ceiling to sleep, he admits that he never told them that the cats had urinated or defecated there. And while the dropped ceiling was accessible, in the absence of stains or odor on the tile, we believe a question of fact exists as to whether the Conways were required to inspect the area above the dropped ceiling.

Under these circumstances, therefore, we find that the trial court erred in granting the motion for summary judgment on the issue of due diligence.

4. The Conways further claim that the trial court erred in granting the Romarions’ motion in limine to exclude an affidavit from the purchaser of the Romarions’ prior home. The purchaser averred that she had discovered extensive cat damage and odor in the house only after closing. The affidavit was offered to show the Romarions’ intent to defraud and to demonstrate that the Conways did not fail to exercise due diligence.

While we agree that evidence of a prior fraud may be admissible to demonstrate fraudulent intent in the transaction at issue, the party seeking to introduce such evidence must lay a proper foundation, including proof that the prior transaction was fraudulent: “To render such evidence admissible, it must be shown that the other transactions were fraudulent, and it must appear that they were so connected in point of time and otherwise with the one in issue as to make it apparent that all were proposed or carried out in pursuance of a common fraudulent purpose.” (Citation and punctuation omitted.) Ament v. Bennett’s Fine Jewelry, 249 Ga. App. 683, 684-685 (549 SE2d 501) (2001).

The affidavit on its face fails to meet these foundational requirements, as there is no evidence establishing that the Romarions committed fraud in the prior transaction. The affidavit merely states that the prior purchaser did not discover the pet damage until after closing. Accordingly, we cannot say that the trial court abused its discretion in granting the motion in limine.

Judgment affirmed in part and reversed in part.

Barnes and Phipps, JJ, concur.

Smith, Gilliam, Williams & Miles,. Steven P. Gilliam, Robert A. Weber, for appellees.

       See, e.g., Buckley, 248 Ga. Ápp. at 795 (purchaser noticed problems within two months, but waited ten months to attempt rescission); Keller, 248 Ga. App. at 528 (2) (no effort to rescind); Holloman, 241 Ga. App. at 146-147 (3) (no attempt to rescind until fifteen months after closing and after first demanding remedial work on the property).

       See, e.g., Akins v. Couch, 271 Ga. 276, 278 (2) (518 SE2d 674) (1999) (jury question existed on whether plaintiffs waived rescission where they executed a second security deed after alleged fraud discovered, but retained the right to have it cancelled at any time upon payment of the debt); Aliabadi v. McCar Dev. Corp., 249 Ga. App. 309, 314 (2) (547 SE2d 607) (2001) (purchaser undertook repairs in addition to those necessary to return the house to a liveable condition); Paden v. Murray, 240 Ga. App. 487, 489 (1) (523 SE2d 75) (1999) (purchaser undertook substantial remodeling of the house).

       The Conways filed a first amendment to increase the amount of such damages.


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A01A1362.
    FREI v. THE STATE.
    (557 SE2d 49)
   Blackburn, Chief Judge.

Following a jury trial, James Alexander Frei appeals his conviction for aggravated child molestation, statutory rape, incest, sodomy, and child molestation, contending that the trial court erred by: (1) intimidating witnesses and bullying defense counsel; (2) admitting Frei’s confession into evidence; (3) failing to grant a new trial because the State did not disclose information that the victim made a prior accusation of molestation against her uncle; (4) improperly restricted elicitation of good character evidence from his wife; and (5) improperly commenting on the evidence. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the record shows that Frei engaged in sexual intercourse with his minor stepdaughter approximately 50 times. Distraught and feeling guilty, Frei admitted the crime to police in both written and oral statements. At trial, the victim described these acts of sexual intercourse to the jury, and Frei’s wife, Corrie, testified both that Frei admitted the crime to her and that she had seen a videotape in which Frei had touched her daughter inappropriately. In summary, the victim described the crimes, Frei admitted to the crimes, and witnesses corroborated the crimes. Certainly, this evidence was more than sufficient to support the conviction. See Jackson v. Virginia.

1. Frei contends that the trial court inappropriately intimidated witnesses and bullied his defense counsel, resulting in an unfair trial. The record, however, fails to support this broad enumeration.

The transcript shows that, on the day of Frei’s trial, the victim, Frei’s stepdaughter, did not come to court as planned although she had previously stated that she wished to testify. Looking into the matter, the trial court learned that Frei’s defense counsel and his wife met with the victim the day before trial, encouraged her to engage separate counsel, and told her that she did not have to attend the trial if she did not want to do so. Later, when the victim was on her way to meet with the prosecutor, her mother, who was openly sympathetic to Frei, stopped the victim, asked her to get into her car, drove her to a friend’s house, and left her there without transportation.

On the day of trial, deputies picked the victim up after she had been located and brought her to the courtroom. At that time, the trial court conducted a hearing to determine whether the victim’s mother and defense counsel had inappropriately tampered with the witness, attempting to sway her decision to testify against her stepfather. During this hearing, the trial court admonished all parties involved that it would not tolerate such behavior and that it would be displeased if the evidence showed that tampering had occurred. Ultimately, the hearing showed that, although her mother did not want her to testify and defense counsel insisted that the victim wanted to abstain from taking the stand, the victim clearly wanted to do so if necessary.

Accordingly, despite Frei’s complaints that the trial court’s actions were designed to intimidate Corrie Frei and bully his defense counsel, the record provides a solid foundation for the trial court’s concern over witness tampering, and it did not err in conducting a hearing to determine the circumstances surrounding the victim’s failure to show up in the courtroom as planned. This, in turn, undermines Frei’s complaints that the trial court’s suspicion of tampering pervaded the rest of the trial, frightening witnesses and hampering defense counsel.

Frei received a fair trial. This enumeration lacks merit.

2. Frei contends that the trial court erred by admitting his confession into evidence, arguing that the statement was taken in violation of his Miranda rights. Specifically, Frei argues that (a) he was not informed of his Miranda rights prior to the time that the statement was given and (b) that the investigating officer improperly gave him a hope of benefit. Again, the record fails to support this contention.

(a) Frei contends that the evidence failed to show that he was properly informed of his Miranda rights prior to his confession.

“It is the prosecution’s burden to show the voluntariness of a custodial statement by a preponderance of the evidence. And factual and credibility determinations made by a trial judge after a voluntariness hearing must be accepted by appellate courts unless such determinations are clearly erroneous.” Jenkins v. State.

Pretermitting the question of whether Frei was in custody at the time that he confessed to the crimes, the record shows that the investigating officer testified that, prior to questioning Frei, he informed him of his Miranda rights. Although the officer testified that he could not specifically remember the day in question, which occurred years ago, he stated that he always read Miranda rights prior to questioning a suspect and that he believed that he had done so in this case. Frei’s signed statement, which reiterated his rights and indicated that the investigating officer had sufficiently apprised him of Miranda, corroborates the officer’s testimony. And, although, Frei disputes the officer’s versions of events, the trial court was the appropriate arbiter of credibility in this matter. Jenkins, supra.

The trial court’s determination that the confession was admissible is supported by the evidence, is not clearly erroneous, and is affirmed.

(b) Frei contends that his confession must be treated as involuntary because the investigating officer told him that he would let the district attorney know that he had cooperated and would do whatever he could to help Frei. This enumeration is patently erroneous.

For a confession to be admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or the most remote fear of injury. The promise of a benefit that will render a confession involuntary under OCGA § 24-3-50 must relate to the charge or sentence facing the suspect. Sparks v. State. The phrase “hope of benefit” generally means the reward of a lighter sentence. Cooper v. State Georgia’s appellate courts have held that an officer is not offering a suspect a hope of benefit by telling him that his cooperation will be made known to others, e.g., the trial judge. Gilliam v. State And, we have held that a confession is not tainted because a suspect confesses only after the officer tells him, “I want to help you,” Cooper, supra, or after the officer says that if the suspect cooperates, he will inform the prosecutor and “it might help him.” Lyles v. State. We have also upheld the admission of a confession where the officers told the suspect that they would tell the prosecutor about his cooperation and that this might result in a reduced sentence, but that they were making no promises and had no authority to make any promise of leniency. Gadson v. State.

(Footnote omitted.) Evans v. State.

Here, the investigating officer told Frei that he would let the district attorney know that he had cooperated and would do what he could to help him. Based on the authority just cited, we find no error.

3. Frei contends that he should be given a new trial because the State failed to disclose that the victim had made prior unrelated allegations of abuse against her uncle, contrary to the rules of Brady v. Maryland. This information, however, was not contained in the prosecutor’s files, and there is no evidence showing that the prosecutor was otherwise privy to this information.

There is no evidence in the record that the State was aware of the victim’s prior allegations. Although the record shows that the victim accused her uncle of molestation and communicated such accusations to her Department of Family & Children Services (DFACS) counselor, a psychiatrist retained by DFACS, and her mother, the State was never informed about this occurrence, and the allegations were never made a part of DFACS’ files which would facilitate the State’s discovery. As such, the prior accusations of molestation were not discoverable by the State absent some spontaneous statement by one of the parties involved. Furthermore, “Brady does not impose an affirmative obligation on the prosecution to seek out information for the defense, even if such information is more accessible to the prosecution than the defense.” (Punctuation omitted.) Ferguson v. State. And, in this case, the information was at least equally accessible to both the State and the defense; Frei’s wife knew of the prior allegations and could have conveyed this information to the defense, which she clearly supported.

Accordingly, this enumeration lacks merit.

4. Frei contends that the trial court inappropriately prevented him from eliciting evidence of his good character from his wife, Corrie Frei. During her testimony, defense counsel asked Corrie whether she would believe her husband if he were to testify under oath. In doing so, defense counsel directly attempted to elicit testimony regarding Frei’s credibility. The trial court sustained the State’s subsequent objection, finding that issues of credibility are for the jury’s determination. This ruling was correct. OCGA § 24-9-80 clearly provides: “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.”

5. Finally, Frei contends that the trial court improperly commented on the testimony of the victim regarding the county in which the crimes committed against her occurred. We disagree.

During the cross-examination of the victim, defense counsel asked the witness numerous times whether her stepfather had molested her in either Madison County or Clarke County. Each time, the victim testified that the acts occurred in Madison County, except for one incident where her stepfather had rubbed her breasts. After defense counsel continued to quiz the victim on the same issue, the trial court interjected that the victim had stated several times that the molestation occurred in Madison County, and the victim agreed. Frei now contends that, by making this statement, the trial court inappropriately commented on the issue of venue.

Decided November 20, 2001.

Garland, Samuel & Loeb, Nelson O. Tyrone III, for appellant.

Robert W. Lavender, District Attorney, Marsha D. Cole, Assistant District Attorney, for appellee.

In this case, the trial court’s inteijection was merely an attempt to move the trial along in order to get to the truth of the case. As such, the trial court was merely marshaling the trial, not inteijecting its opinion. This action, therefore, was within the trial court’s discretion. Eubanks v. State.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Jenkins v. State, 251 Ga. App. 76, 77 (553 SE2d 378) (2001).

        Sparks v. State, 232 Ga. App. 179, 184 (4) (501 SE2d 562) (1998).

        Cooper v. State, 256 Ga. 234, 235 (2) (347 SE2d 553) (1986).

        Gilliam v. State, 268 Ga. 690, 692 (3) (492 SE2d 185) (1997).

        Lyles v. State, 221 Ga. App. 560, 561 (1) (472 SE2d 132) (1996).

        Gadson v. State, 197 Ga. App. 315 (1) (398 SE2d 409) (1990).

        Evans v. State, 248 Ga. App. 99, 101-102 (2) (545 SE2d 641) (2001).

        Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

       The victim maintains that these allegations are true, although her uncle denies that he molested the victim.

        Ferguson v. State, 226 Ga. App. 681, 685 (3) (487 SE2d 467) (1997).

        Eubanks v. State, 240 Ga. 544, 547 (2) (242 SE2d 41) (1978).


author: Pope, Presiding Judge.

text:
    A01A1625.
    LEWIS v. LEWIS.
    (557 SE2d 40)
   Pope, Presiding Judge.

Lori Jean Lewis appeals from the trial court’s order granting Stuart Lewis’s petition to modify custody. We affirm.

When the parties were divorced in December 1999, the trial court entered a consent final judgment and decree of divorce. Under the terms of that decree, Lori and Stuart Lewis were granted joint legal custody, care and control of their three children. The decree also provided for shared physical custody of the children. The children resided with their mother during the school year, while the father had the children every other weekend from Thursday at 3:00 p.m. until the following Sunday at 6:30 p.m. In addition, the decree provided that the father kept the children every Thursday evening from 3:00 p.m. until school started the next day. During the summer months, the children resided with their father, while the mother kept them every other weekend from Wednesday at 3:00 p.m. until the following Sunday at 8:00 p.m. Custody during holidays and vacation periods was split evenly between the parents.

To ensure stability for the children during the transition period following the divorce, the mother agreed that she would not change her residence from Carroll County for approximately one and one-half years, until July 1, 2001.

After Stuart Lewis learned that Lori Lewis planned to remarry in June 2001 and move to Cobb County, he filed a petition to modify custody, asking that the children reside with him during the school year and with Lori Lewis on alternate weekends. He proposed that the arrangement be reversed during the summer months. The mother cross-petitioned seeking to change the custody arrangements herself, asking that the father’s weekend custody during the school year be changed to every other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m.

Following an evidentiary hearing, the trial court awarded primary physical custody to Stuart Lewis.

1. Lori Lewis contends that the trial court erred in finding that neither parent had been awarded primary physical custody of the children in the original divorce decree. She asserts that this finding was crucial because under Georgia law a parent granted primary physical custody is entitled to deference in later modification proceedings.

“A parent who has been awarded custody pursuant to a divorce decree has a prima facie right to retain such custody, and a trial court in a modification action should ordinarily favor such parent.” Daniel v. Daniel, 235 Ga. App. 184 (1) (509 SE2d 117) (1998). In this case, however, the parents were awarded joint physical custody. The decree provides: “The parties shall share physical custody of the children as hereinafter described. Both parties shall have liberal periods of physical custody and shall have the right to have them at all reasonable times and places mutually agreed upon by the parties. . . .” There was no determination that either parent should be the primary custodian. Under these circumstances, we find that each parent has a prima facie right to custody and thus neither parent is entitled to be favored over the other.

Nevertheless, Lori Lewis asserts that she should have been considered the primary physical custodian and her rights entitled to deference. She cites the fact that the children resided mostly with her during the school year. But Stuart Lewis also had substantial custody rights during the school year — every other weekend beginning Thursday afternoon, and every Thursday afternoon through Friday morning. When the parties’ relative custody periods are compared, Lori Lewis had custody roughly 60 percent of the time, while Stuart Lewis had custody approximately 40 percent of the time. We do not find that Lori Lewis’s share of custody was so substantial as to entitle to her to special deference.

She also notes that Stuart Lewis was required to pay her $600 per month in child support. While this award may reflect the relative financial interests between the parents, it does not compel the conclusion, in the absence of any other supporting evidence, that Lori Lewis was intended to be the primary custodian.

2. Lori Lewis next asserts that the trial court improperly based its decision to modify custody on her proposed move to Cobb County.

Since a permanent child custody order had previously been entered in this case, the trial court was required to find that there was a change of conditions affecting the welfare of the children. Arp v. Hammonds, 200 Ga. App. 715, 716 (409 SE2d 275) (1991). And where the parents have joint physical custody, a decision to change custody must be based “on evidence of a positive or adverse change in the circumstances of either . . . parent, or any change in the circumstances . . . substantially affecting the welfare and best interests of the child.” (Citation omitted; emphasis supplied.) In the Interest of S. D. J., 215 Ga. App. 779 (452 SE2d 155) (1994).

While Georgia courts have found that a move is not necessarily, in and of itself, a sufficient change in condition to authorize a change in custody, we have addressed this issue only in cases where one parent was designated as the sole or primary physical custodian. See, e.g., Mahan v. McRae, 241 Ga. App. 109, 112-113 (522 SE2d 772) (1999); Ofchus v. Isom, 239 Ga. App. 738, 739 (1) (521 SE2d 871) (1999); Tenney v. Tenney, 235 Ga. App. 128, 129 (1) (508 SE2d 487) (1998). In those cases, we held that the move alone was not sufficient to justify removing custody from the custodial parent, even where it severely impacted the noncustodial parent’s visitation rights.

We have found no cases, however, addressing the issue of a proposed move in the context of joint physical custody. In such a case, it is not merely visitation rights that are at stake, but rather each parent’s own prima facie right to custody.

It is apparent that Lori Lewis’s proposed move would impact the parties’ shared custody arrangement. During the school year, the children spend each Thursday evening and alternate weekends, beginning Thursday evening, with their father. The mother’s proposed 72-mile move affected the practicality of this arrangement. The children would be attending a new school district, and it would be impractical, at the very least, for them to make a 144-mile round trip to stay with their father on a school night. Both parents clearly recognized these difficulties as they each petitioned the court to modify the original arrangement.

We have previously found that difficulty in maintaining a shared custody arrangement can amount to an adverse change in condition affecting the welfare of a child. In the Interest of S. D. J, 215 Ga. App. at 780-781. In that case, the child resided with each parent for a portion of each week, and the parents resided in different school districts. As the child grew and started school and other outside activities, the shared schedule became hectic and burdensome. There was evidence that the child’s sleep and medical care suffered as a result. We found that this evidence was sufficient to support a modification of custody “even in the absence of evidence establishing that the adverse conditions affecting the child had a measurable adverse effect on the child.” (Emphasis in original.) Id. at 780.

Accordingly, we find that the trial court properly considered the impact of the proposed move on the existing custody arrangement in this case, especially where both parents agreed that the custody schedule had to be modified in light of the move. If custody were unaltered, the children’s school and activity schedules would become impractical and onerous, as the children were shuttled between their parents’ homes. Thus, the trial court was entitled to find that continuation of the original custody arrangement would adversely impact the children’s welfare and that the changed circumstances were sufficient to justify a modification of custody.

Moreover, where both parties were fit and loving parents and neither was entitled to deference on the issue of custody, the trial court was required to consider only the best interests of the children in crafting a new custody arrangement. OCGA §§ 19-9-1 (a) (2); 19-9-3 (a) (2). See also In the Interest of S. D. J., 215 Ga. App. at 779 (“potential change of custody is always considered in light of the best interests of the child”).

At the hearing on the petition, the trial court heard testimony from friends, a family counselor and the parents themselves. The evidence showed that the children had strong ties to their school, church and friends in Carroll County. The evidence further showed that the father maintained almost daily contact with the children before and after school in addition to his scheduled custody periods. The father, the family counselor and other witnesses testified that the two older children expressed a strong preference for staying in Carroll County with their father, as well as apprehension about the possibility of moving to Cobb County. The mother did not dispute this testimony, although she felt that the children would adjust to their new surroundings and would develop new ties in their new home where they had extended family nearby. The judge also held an in camera meeting with the couple’s 11-year-old son with counsel for both parents present. That meeting was not transcribed. We note that the trial court was entitled to consider the boy’s preference in the matter, although his preference cannot constitute a material change of circumstances standing alone. OCGA § 19-9-1 (a) (3) (B), (C).

Decided November 20, 2001.

Hartley, Rowe & Fowler, Joseph H. Fowler, for appellant.

T. Michael Flinn, for appellee.

Accordingly, based upon our review of the record, we cannot say that the trial court abused its discretion in awarding primary physical custody to Stuart Lewis. “It is not our function to second-guess the trial court in cases such as this, which turn largely on questions of credibility and judgments as to the welfare of the child. The trial court is in the best position to make determinations on these issues, and we will not overrule its judgment if there is any reasonable evidence to support it.” Green v. Krebs, 245 Ga. App. 756, 759 (1) (538 SE2d 832) (2000).

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.

        Bradley v. Bradley, 270 Ga. 488 (512 SE2d 248) (1999), upon which Lori Lewis relies, is inapposite as it addressed the issue of whether a court can order that a noncustodial parent may take a federal tax exemption for a child.

       We note that in some jurisdictions the trial court applies a “best interest” of the child test to determine whether change of custody is appropriate where the parents have shared physical custody, without requiring a substantial change in conditions. See, e.g., Ex parte Couch, 521 S2d 987, 989 (Ala. 1988); In re Marriage of Williams, 88 Cal. App.4th 808, 812 (105 Cal. Rptr.2d 923) (2001).


text:
    A01A1380.
    LIBERTY NATIONAL LIFE INSURANCE COMPANY v. RADIOTHERAPY OF GEORGIA, P.C. et al.
    (557 SE2d 59)
   Blackburn, Chief Judge.

Seeking injunctive and declaratory relief and damages for misrepresentation, Liberty National Life Insurance Company (“Liberty National”) sued Radiotherapy of Georgia, P.C. (“Radiotherapy”) and Atlanta Oncology Associates, P.C. d/b/a Cancer Center of Gwinnett, Middle Georgia Radiation Oncology, LLC, Hematology & Oncology of N.E. Georgia, P.C., and Cherokee Cancer Center, P.C. (collectively “Atlanta Oncology”). Liberty National’s complaint centered on allegations that these medical providers had improperly billed Liberty National’s policyholders. After the trial court awarded summary judgment to Radiotherapy and Atlanta Oncology, Liberty National then filed this appeal, primarily arguing that the trial court failed to consider whether the billed charges of these medical providers were negligently represented as being reasonable. After review, we find no error and affirm.

Liberty National issues cancer policies which provide insurance benefits for certain expenses incurred for cancer treatment. These policies do not require the coordination of benefits with Medicare or with other insurers. Under the terms of these cancer policies, Liberty National makes direct payments to its insureds unless those benefits have been assigned to a medical provider. Typically, Liberty National pays the insurance benefits based upon the amount billed by the provider, subject to that amount being reasonable and customary. The Liberty National policy at issue provides in pertinent part:

The benefits specified below cover expenses incurred in the hospitalization or treatment of cancer. Such expenses will consist of the actual charges by the hospital, physician, or other providers, subject to the limitations contained herein. No benefits will be paid in excess of the usual and customary charges made by the provider of services or treatments.

After paying its insureds under their cancer policies, Liberty National allegedly discovered that it was having to pay more than the health care providers were permitted to charge their patients under limitations imposed by Medicare. Liberty National then sued the medical providers, complaining that their billing statements for services issued to patients included amounts not subject to Medicare reimbursement. In other words, Liberty National claimed that the billing statements included amounts in excess of Medicare fee schedules for the described services, amounts that the health care providers were foreclosed by federal law from recovering. The crux of Liberty National’s complaint was that Liberty National was being required to pay excess amounts that the providers were contractually prohibited by federal law from collecting. As a result of these billing practices, Liberty National sought injunctive and declaratory relief as well as damages.

Raising several theories of defense, Atlanta Oncology filed motions for judgment on the pleadings, to dismiss for failure to join indispensable parties, and for summary judgment. The trial court granted Atlanta Oncology’s motion for summary judgment. Without explaining its rationale for doing so, the trial court also granted Radiotherapy’s separate motion for summary judgment.

1. Liberty National contends that the trial court erred by refusing to consider that the “billed” charges of Radiotherapy and Atlanta Oncology were in excess of the amounts that they expected to receive in payment, were more than the Medicare-allowed amount, and were “negligently represented as being reasonable.” Liberty National asserts that, for Medicare-eligible patients, the “reasonable” charge for services within the meaning of its cancer policies must be identical to the amount determined by Medicare statutes and regulations. Liberty National claims that any billing in excess of the Medicare fee schedule must be considered “in excess of the reasonable and customary charges made by the provider of services or treatments,” and, therefore, not payable under the terms of the cancer policies. See Liberty Nat. Life Ins. Co. v. Allen.

Before addressing these specific arguments, we find that Liberty National’s claims fail as a matter of law for two reasons. First, Liberty National failed to offer any evidence of reasonable reliance upon the so-called representations made by Radiotherapy and Atlanta Oncology, and second, the voluntary payment doctrine precludes any recovery.

Liberty National’s Count 2 alleged misrepresentation or fraud. Both of these torts, however, require proof of justifiable reliance on the part of the plaintiff. Consulting Constr. Corp. v. Edwards. See Crawford v. Williams. To survive summary judgment, Liberty National had to offer proof that it exercised its duty of due diligence. Williams v. Fallaize Ins. Agency. Thus, assuming for the sake of analysis only that Radiotherapy and Atlanta Oncology provided misinformation to Liberty National, Liberty National had to show that it exercised due diligence in relying upon that information. See id.

But Liberty National’s own fact witnesses and other evidence demonstrate the contrary. The evidence shows that Liberty National knew as early as 1993 that there were often discrepancies between the actual charges of health care providers and the allowable charges under Medicare. In August 1993, Liberty National instituted a new procedure in Alabama for paying claims on cancer policies of policyholders who were Medicare recipients. Allen, supra. Under a new procedure known as the “Medicare Allowable Claims Practice,” the amount of benefits that Liberty National “would pay a Medicare participant covered by the cancer policy would be the maximum amount a medical provider was allowed to charge Medicare recipients for the particular treatment.” Id. at 139. In November 1993, Liberty National rescinded the new practice after encountering customer complaints, reimbursement problems, and in anticipation of the cost of potential litigation. Id. at 140.

Michael W. Bryant, Manager of Accident and Health Claims for Liberty National, admitted knowing that the amount billed by health care providers and the amount Medicare considers reasonable were often at variance. Bryant conceded that it had been Liberty National’s own choice not to reinstitute the pre-Allen procedure of denying insurance benefits that exceeded the amount of the Medicare fee. Linda Davis, also a designated representative of Liberty National, testified that the amount allowed by Medicare for any procedure in a particular area could be ascertained just by placing a telephone call. In addition, the record shows without dispute that information on Medicare fee schedules is published and available from the Federal Register or through the Commerce Clearing House or via the Internet. Since Liberty National knew that Medicare reimbursement and actual fees were two distinct amounts and could have ascertained the actual information for any medical procedure had it troubled itself to do so, Liberty National cannot show that it exercised due diligence. Therefore, Radiotherapy and Atlanta Oncology were entitled to judgment as a matter of law. See Edwards, supra at 298.

Notwithstanding Liberty National’s claim to the contrary, the same result would be reached upon the voluntary payment rule. Under the voluntary payment doctrine,

[p]ayments of claims made through ignorance of the law or where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered unless made under an urgent and immediate necessity therefor or to release person or property from detention or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule prescribed in this Code section.

OCGA § 13-1-13. As a general rule, a payment made through ignorance of law and in the absence of fraud is deemed voluntary and is not recoverable. Decatur Fed. Sav. &c. Assn. v. Gibson. This statute applies both to one who pays money with knowledge of all the facts and to one who pays by mistake without a valid reason for failing to ascertain the truth. Gulf Life Ins. Co. v. Folsom. Under the voluntary payment doctrine, the party seeking recovery must prove that the payment was not voluntarily made because certain material facts were not known at the time of payment or a valid reason existed for failure to determine the truth. Ins. Co. of North America v. Kyla, Inc. Thus, Liberty National’s claim for “negligent representation” must fail as a matter of law, unless the limited exception set forth in Robert & Co. Assoc. v. Rhodes-Haverty Partnership is applicable. In that case, the Supreme Court observed:

Courts have been reluctant to extend liability in negligent misrepresentation cases where no privity appears and where the loss was merely economic and involving neither physical harm nor injury to property. An exception has been carved out in those cases where a known third party’s reliance was the desired result of the representation.

Robert & Co. Assoc., supra at 681. But even in these third-party reliance situations, the third party must establish that the defendant made the representation for the purpose of inducing reliance and action upon that representation. Id. at 682. Absent the requisite showing, no liability can attach “in the absence of privity, willfulness or physical harm or property damage.” Id.

Here, Liberty National failed to offer any evidence that Radiotherapy or Atlanta Oncology incorporated false, inaccurate, or misleading information into their billing statements in an attempt to induce Liberty National to rely and act to its detriment upon that information. No evidence shows that Radiotherapy or Atlanta Oncology desired Liberty National to rely on the billing statements that Liberty National repeatedly characterizes as “misrepresentations.” Nor has Liberty National demonstrated that the information was “false” or that Radiotherapy and Atlanta Oncology purposefully induced Liberty National to rely on such information. Liberty National’s argument is further undercut by its agreement to stipulate that none of these providers retained any funds that were paid on behalf of any insurance claims and that any amount in excess of the Medicare reimbursement went to the patient (the policyholder). Because Liberty National failed to offer proof that it exercised due diligence, it cannot prevail even under this narrow exception. See Robert & Co. Assoc., supra.

Decided November 21, 2001.

Speed & Seta, J. Wallace Speed, Lesli R. Seta, for appellant.

Jones, Day, Reavis & Pogue, Robert M. Martin, Ruth H. Gershon, Gambrell & Stolz, Seaton D. Purdom, Linda A. Klein, Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, for appellees.

2. Liberty National contends that the trial court erred if that court based its ruling on a determination that Liberty National failed to exercise due diligence because due diligence was not required. As determined in Division 1, Liberty National’s failure to offer proof of this essential element of its claim for misrepresentation was fatal. American Legion v. Foote & Davies, Inc.

3. Liberty National asserts that its claim for declaratory relief presents a justiciable controversy and seeks judicial determination that under its policies, the meaning of “reasonable charges” for Medicare-covered patients is the amount determined by Medicare statute and regulation. Insurance, however, is a matter of contract and is controlled by contract law. Nat. Security Fire &c. Co. v. London. Liberty National was the drafter of the policy language at issue, and the policy terms must be construed against Liberty National and in favor of the insureds. Cole v. Life Ins. Co. &c. Since the cancer policies do not contain a definition of “reasonable and customary charges,” that language must be construed against Liberty National as the insurer. See Hurst v. Grange Mut. Cas. Co. In any event, the policyholders are not parties to the underlying action, and no justiciable controversy exists between Liberty National and these parties. See Farm &c. Life Ins. Co. v. Skelton. Since Liberty National has presented no viable claims against Radiotherapy or Atlanta Oncology, no further direction from the trial court is needed. Watts v. Promina Gwinnett Health System.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       All issues in the underlying litigation relate exclusively to Liberty National’s insureds who have Medicare coverage. Liberty National wanted to process the claims of policyholders who became eligible for Medicare differently from the claims of those who did not have Medicare coverage.

        Liberty Nat. Life Ins. Co. v. Allen, 699 S2d 138 (Ala. 1997).

        Consulting Constr. Corp. v. Edwards, 207 Ga. App. 296, 298 (1) (427 SE2d 789) (1993) (action for misrepresentation requires proof of reasonable reliance upon defendant’s false representations).

        Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989).

        Williams v. Fallaize Ins. Agency, 220 Ga. App. 411, 413 (1) (469 SE2d 752) (1996).

        Decatur Fed. Sav. &c. Assn. v. Gibson, 268 Ga. 362, 363 (1) (489 SE2d 820) (1997).

        Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 401 (349 SE2d 368) (1986).

        Ins. Co. of North America v. Kyla, Inc., 193 Ga. App. 555, 556 (388 SE2d 530) (1989).

        Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680, 681 (300 SE2d 503) (1983).

        American Legion v. Foote & Davies, Inc., 193 Ga. App. 225, 227 (2) (387 SE2d 380) (1989) (party must make inquiry and ascertain the truth for himself).

        Nat. Security Fire &c. Co. v. London, 180 Ga. App. 198, 200 (2) (348 SE2d 580) (1986).

        Cole v. Life Ins. Co. &c., 236 Ga. App. 229, 230 (511 SE2d 596) (1999).

        Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 716 (4) (470 SE2d 659) (1996).

       Although liberty National stipulated that none of these medical providers retained any money paid out by Liberty National on the cancer policies, no evidence suggests that Liberty National sought to recover the money from its policyholders.

        Farm &c. Life Ins. Co. v. Skelton, 235 Ga. App. 507, 509 (510 SE2d 76) (1998).

        Watts v. Promina Gwinnett Health System, 242 Ga. App. 377, 382 (5) (530 SE2d 14) (2000).


text:
    A01A1507, A01A1890.
    RUSSELL MORGAN LANDSCAPE MANAGEMENT et al. v. VELEZ-OCHOA; and vice versa.
    (556 SE2d 827)
   Blackburn, Chief Judge.

On July 31, 1996, Gilberto Velez-Ochoa was injured in a work-related collision between a Caterpillar tractor and the truck he was loading. His employer, Russell Morgan Landscape Management, paid Velez-Ochoa workers’ compensation benefits through August 11, 1997, when it suspended payments. Velez-Ochoa filed a claim with the State Board of Workers’ Compensation (“Board”) for improper suspension of his temporary total disability benefits. An administrative law judge (“ALJ”) held an evidentiary hearing to consider the claim on January 8, 1999. The ALJ concluded that Morgan Landscape had established that, as of the benefit suspension date, Velez-Ochoa had undergone a change in condition for the better and was able to return to work without restriction and denied Velez-Ochoa’s claim for temporary total disability benefits after August 11, 1997. The ALJ also found that Morgan Landscape had failed to comply with the technical requirements of the Workers’ Compensation Act and Board Rules for suspension of benefits and ordered it to pay an additional ten days of benefits, $1,100 in attorney fees, and a civil penalty of $1,000.

Velez-Ochoa appealed the ALJ’s ruling to the appellate division of the Board. The appellate division accepted the ALJ’s findings of fact but overturned the ALJ’s conclusions of law with regard to the termination of Velez-Ochoa’s benefits. The appellate division ordered Morgan Landscape to pay Velez-Ochoa temporary total disability benefits through January 8, 1999, the date of the hearing before the ALJ. Morgan Landscape appealed the order of the appellate division to the superior court, which declined to issue an order within 20 days of hearing the matter, causing the order of the appellate division to be confirmed by operation of law. OCGA § 34-9-105 (b).

Pursuant to our grant of their application for discretionary appeal, in Case No. AQ1A1507 Morgan Landscape appeals the trial court’s affirmance of the appellate division’s order. In Case No. A01A1890, Velez-Ochoa appeals the trial court’s denial of his motion to dismiss Morgan Landscape’s appeal. For reasons set forth below, we affirm in both cases.

Case No. A01A1890

Morgan Landscape filed a notice of appeal in this matter with the trial court on October 23, 2000. The notice of appeal stated that the “transcript of evidence and proceedings will be filed for inclusion in the record on this Appeal.” There was, however, no transcript available of the superior court hearing. As of March 5, 2001, the record had not been forwarded to this court by the superior court clerk, which was waiting for the nonexistent transcript, and Velez-Ochoa asked the trial court to dismiss Morgan Landscape’s appeal for inexcusable delay. The trial court denied Velez-Ochoa’s motion to dismiss on March 22, 2001.

“[T]rial courts have very broad discretion when deciding whether to dismiss an appeal for delay.” Crown Diamond Co. v. N. Y. Diamond Corp. Velez-Ochoa refers us to decisions in which the appellant had caused an inexcusable delay by asking the superior court clerk to include a nonexistent transcript in the record to be transmitted to this court. See Johnston v. Ga. Public Svc. Comm.; Lindstrom v. Forsyth County. But these cases involve the trial court’s dismissal of an appeal. The question presented here is whether, despite the trial court’s broad discretion, it was abuse of that discretion to deny the motion to dismiss the appeal. In reaching a decision whether a delay in filing a transcript justifies dismissal of the appeal, the trial court should consider if the delay was unreasonable and inexcusable. OCGA § 5-6-48 (c); In the Interest of D. M. C. A transcript of the workers’ compensation hearing was part of this record and could afford a basis for finding an excusable misunderstanding between the clerk of the superior court and counsel for Morgan Landscape. The record also shows that Morgan Landscape’s counsel was diligent in keeping track of the appeal’s status and was under the misconception that the delay in filing with this court was due to a normal administrative backlog. There is some evidence to support a finding of an excusable delay or a reasonable delay in the filing of this appeal. Accordingly, we find no abuse in the exercise of the trial court’s discretion, and we affirm the denial of Velez-Ochoa’s motion to dismiss.

Case No. A01A1507

The findings of fact of the AL J, as accepted by the appellate division, are not in dispute. The controversy is whether the employer was entitled to suspend benefit payments as of (1) August 11, 1997, the date it filed the notice of suspension of benefits, or (2) January 8, 1999, the date of the evidentiary hearing. Morgan Landscape argues that Sadie G. Mays Mem. Nursing Home v. Freeman is the controlling authority and that Freeman required that the appellate division affirm the ALJ’s suspension of Velez-Ochoa’s benefit payments as of August 11, 1997. We find that Freeman is distinguishable.

In Freeman, the employer’s notice of suspension of benefits (which is required to be made through a “Form WC-2”) indicated that the employer had suspended the employee’s benefits because the employee had returned to work, although the employee had not returned to work. The Board concluded that the employee was entitled to benefits until the employer properly terminated them. We disagreed with the Board and held that the employer was entitled to establish a change of condition by showing that the employee was able to return to work regardless of whether the employee had returned in fact. But, most importantly to the question here, we also wrote:

Nor are the appellants precluded from asserting a change in condition due to the fact that the WC 2 listed the reason for termination as being “return back to work” when appellee had, in fact, not returned to work. The WC 2 contained language sufficient to place the board and appellee on notice of termination of benefits due to change in condition, and, as previously noted, actual return to work by the employee is not a prerequisite for termination of benefits due to a'change in condition.

(Emphasis supplied.) Id. at 560 (3).

In comparison to Freeman, the Form WC-2 Morgan Landscape gave to Velez-Ochoa and the Board (1) listed the reason for suspension of benefits as “non-compliance with medical treatment,” although the ALJ found that there was no such noncompliance; (2) failed to contain the information on the reverse side of the standard Form WC-2 explaining the procedure for challenging a suspension of benefits; (3) had no supporting medical reports attached, which are required under Board Rule 221 (i) (4) to suspend benefits for release to return to work without restriction; and (4) failed to give ten days advance notice of suspension of benefits as required by Board Rule 221 (i) (1). See Atlanta Janitorial Svc. v. Jackson. Morgan Landscape would prefer to characterize its neglect to inform Velez-Ochoa that his benefits were being terminated for release to return to work without condition, and its failure to comply with Board Rules in preparing the Form WC-2, as technical violations caused by clerical error, and that these technical violations should not prohibit the suspension of Velez-Ochoa’s benefits on the notice date so long as a change in condition could be shown. We disagree because Morgan Landscape failed to comply with provisions of the Workers’ Compensation Act and Board Rules designed to afford due process to the injured worker, see Cryder v. Oxendine and, unlike Freeman, the mistake in listing the reason for suspension does not put the employee on fair notice of the employer’s actual grounds for suspension. “We act evenhandedly when we apply the Act as it is written. Just as the claimant must meet the statute’s requirements in order to qualify for benefits, so must the employer adhere to the procedural requirements in order to controvert the claim.” Cartersville Ready Mix Co. v. Hamby.

Decided November 21, 2001.

Swift, Currie, McGhee & Hiers, Mark J. Goodman, Robert S. Huestis, Megan W. Grout, for appellants.

Clements & Sweet, John F. Sweet, for appellee.

The appellate division’s ruling is an even-handed application of the law. Morgan Landscape chose not to take advantage of Board Rules which would have allowed it to effectively suspend Velez-Ochoa’s benefits before an evidentiary hearing by filing a conforming Form WC-2. When the parties appeared before the ALJ, Morgan Landscape presented evidence establishing that a change in condition had occurred due to the employee’s ability to return to work, but did not establish noncompliance with medical treatment, the reason for suspension of benefits listed in the Form WC-2 which was actually filed. The appellate division set the benefit suspension date as of this hearing date, at which time the employee could be fairly said to be on notice of the reasons for the suspension of benefits and to have had an opportunity to present his case. We find no error.

Judgments affirmed.

Pope, P. J., and Mikell, J., concur.

        Crown Diamond Co. v. N. Y. Diamond Corp., 242 Ga. App. 674, 676 (1) (530 SE2d 800) (2000).

        Johnston v. Ga. Public Svc. Comm., 209 Ga. App. 224 (433 SE2d 65) (1993).

        Lindstrom v. Forsyth County, 221 Ga. App. 581 (472 SE2d 106) (1996).

        In the Interest of D. M. C., 232 Ga. App. 466, 468 (2) (b) (501 SE2d 305) (1998).

        Sadie G. Mays Mem. Nursing Home v. Freeman, 163 Ga. App. 557 (295 SE2d 340) (1982).

        Atlanta Janitorial Svc. v. Jackson, 182 Ga. App. 155, 159 (4) (355 SE2d 93) (1987).

        Cryder v. Oxendine, 24 F3d 175, 177-178 (11th Cir. 1994).

        Cartersville Ready Mix Co. v. Hamby, 224 Ga. App. 116, 119 (2) (479 SE2d 767) (1996).


author: Ellington, Judge.

text:
    A01A1743.
    SMITH v. THE STATE.
    (556 SE2d 826)
   Ellington, Judge.

A Lowndes County jury convicted Jerome Smith of armed robbery, OCGA § 16-8-41 (a). Smith appeals, contending the trial court erred in refusing to give his requested jury charges on robbery by intimidation and theft by taking.

A written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense. However, where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.

(Citations and punctuation omitted.) Lightfoot v. State, 227 Ga. App. 605 (490 SE2d 177) (1997). At trial, the State introduced evidence that Smith entered a convenience store on July 22, 2000, went behind the counter and demanded money. The clerk testified that Smith threatened her with a knife and said, “Don’t make me kill you.” The clerk opened the register, and Smith took money from the drawer.

Smith contends, correctly, that if the jury could have found from the evidence that the robbery was committed without the use of an offensive weapon, as charged, he was entitled to his requested charge on robbery by intimidation. Smith v. State, 244 Ga. App. 667-668 (1) (536 SE2d 561) (2000); Espinoza v. State, 243 Ga. App. 665, 667 (2) (534 SE2d 127) (2000). See OCGA §§ 16-1-6 (conviction for lesser included offenses); 16-8-41. And if the jury could have found from the evidence that the robbery was committed with the clerk’s cooperation, he was entitled to his requested charge on theft by taking. Edwards v. State, 264 Ga. 131, 132-133 (442 SE2d 444) (1994); Hensley v. State, 228 Ga. 501, 502-503 (2) (186 SE2d 729) (1972). See OCGA § 16-8-2.

Smith contends the tape retrieved from the store’s video surveillance camera showed that the robber’s hands were empty and remained by his sides. Based on this, Smith contends there was some evidence that the robbery was committed without the use of a knife and possibly with the clerk’s cooperation. A review of the videotape reveals that the surveillance system recorded still shots, not motion, and cycled automatically through four different camera views. Therefore, the videotape did not record the movements of the robber’s hands during the entire incident, raising the possibility that the surveillance system simply failed to capture the moment when Smith threatened the clerk with a knife. Further, although the robber’s hands appeared open and down by his sides in many of the recorded frames, at times the robber can be seen putting his hands in his pockets, raising the possibility that he concealed the knife in his pocket after displaying it to the clerk.

Decided November 21, 2001.

Langdale, Vallotton, Linahan & Wetherington, Willie J. Linahan, for appellant.

J. David Miller, District Attorney, Bradfield M. Shealy, Justo C. Cabral III, Assistant District Attorneys, for appellee.

In short, the surveillance system’s failure to clearly record an image of the robber threatening the clerk with a knife does not conflict with the clerk’s testimony that the robber had a knife. Arnold v. State, 238 Ga. App. 314, 315 (2) (518 SE2d 716) (1999). Therefore, under these circumstances, we conclude that the videotape did not constitute evidence that the robber did not use a knife to commit the robbery. Because the only evidence before the court showed the completed offense of armed robbery, the trial court did not err in refusing to charge the jury on the lesser included offenses of robbery by intimidation and theft by taking. Id. See also Lightfoot v. State, 227 Ga. App. at 606; Millis v. State, 196 Ga. App. 799, 800 (3) (397 SE2d 71) (1990); Williams v. State, 191 Ga. App. 913-914 (383 SE2d 344) (1989). Cf. Smith v. State, 244 Ga. App. at 667-668 (1); Espinoza v. State, 243 Ga. App. at 667 (2) (charge on lesser included offense required when defendant admitted committing theft but denied using an offensive weapon).

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

       OCGA § 16-8-41 (a) provides:
      A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon. The offense of robbery by intimidation shall be a lesser included offense in the offense of armed robbery.

       OCGA § 16-8-2 provides: “A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.”

       Smith also argues the clerk’s behavior during and after the robbery support the inference that the robber did not use a knife against her to obtain the money, specifically that she followed the robber out the door and watched him leave before calling 911, that she did not lock the door after the robber left, that she did not seek help from a customer who was outside pumping gas, that she did not immediately alert her sister (who was present in the store with her two small children) about the robbery or check on her nephews’ condition, and that she only worked for the store for one month. Without any evidence to refute the clerk’s testimony that the robber used a knife, however, the evidence still shows a completed armed robbery and did not require a charge on the lesser included offenses. Arnold v. State, 238 Ga. App. at 315 (2).


text:
    A01A1068.
    BOARD OF NATURAL RESOURCES et al. v. MONROE COUNTY et al.
    (556 SE2d 834)
   Ellington, Judge.

The Georgia Department of Natural Resources, Environmental Protection Division (EPD), and other named parties (collectively “DNR”) appeal the order of the superior court denying their motion to dismiss or, in the alternative, motion for summary judgment. DNR alleges that Monroe County, the Monroe County Board of Commissioners, and the Development Authority of Monroe County (collectively “Monroe County”) lack standing and capacity to bring an action for declaratory judgment in opposition to DNR rule changes. DNR also contends the challenge is not ripe for adjudication. We granted this interlocutory application to consider whether the trial court properly denied the motion. Because we find that Monroe County lacks standing to challenge the DNR rules at issue, we reverse.

Under the Georgia Air Quality Act, OCGA § 12-9-1 et seq., and the Federal Clean Air Act, 42 USC § 7504, Georgia is required to attain ambient air quality standards. Georgia law provides that as a matter of public policy, the State will undertake measures “to preserve, protect and improve air quality and to control emissions to prevent the significant deterioration of air quality and to attain and maintain ambient air quality standards so as to safeguard the public health, safety, and welfare consistent with providing for maximum employment and full industrial development of the state.” OCGA § 12-9-2. The Atlanta metropolitan area, including Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding, and Rockdale Counties, has failed either to attain or to maintain the national ambient air quality standard for ozone and is thus designated as an “Ozone Non-Attainment Area.” EPD designated the 32-county area surrounding metropolitan Atlanta, which includes Monroe County, an “Area of Influence.” EPD’s research indicated that emissions from the Area of Influence contributes to the development of ozone within the Non-Attainment Area. Based on these findings, DNR’s Board of Natural Resources amended EPD rules to further restrict emissions of nitrogen oxide (NOx) and other volatile compounds from the Area of Influence. These rules ban outdoor burning and regulate boilers, gas and electric turbines, and gas depots which dispense certain types of gasoline.

Monroe County sought declaratory, injunctive, and equitable relief against DNR and challenged nine of the amended rules. Monroe County contends DNR failed to comply with the Georgia Administrative Procedure Act, OCGA § 50-13-4 (a), before adopting the amended rules; DNR violated a provision of the Federal Clean Air Act requiring consultation with local officials in the planning, developing, or revision of the State Implementation Plan (SIP); and the new rules will deter economic growth in Monroe County.

DNR filed a motion to dismiss or, in the alternative, a motion for summary judgment, contending Monroe County lacked standing and capacity to sue and there was no actual or justiciable controversy ripe for adjudication, thus making the issuance of a declaratory judgment improper. The trial court denied DNR’s motion, finding that Monroe County, as a county within the area affected by the rules, had standing to sue. This appeal followed.

The trial court, in ruling on the motion, considered a stipulation of facts filed by the parties, a matter outside the pleadings. Consequently, the motion was properly treated as one for summary judgment, and we review the order appealed as a denial of a motion for summary judgment. See Cox Enterprises v. Nix, 273 Ga. 152, 153 (538 SE2d 449) (2000). In reviewing the grant or denial of a motion for summary judgment, this Court gives the opposing party the benefit of all reasonable doubt and construes the evidence, and all inferences and conclusions that arise from the evidence, most favorably to the opposing party. City of Lithia Springs v. Turley, 241 Ga. App. 472, 473 (526 SE2d 364) (1999); Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988).

1. In its first enumeration of error, DNR contends the trial court erred in finding that Monroe County has standing to challenge the administrative rules at issue because its legal rights are not impaired by the threatened application of those rules. Specifically, DNR argues that Monroe County’s asserted rights are speculative, generalized economic interests contingent on hypothetical future events. In other words, its rights are based upon the possibility of lost industrial development or jobs and the possibility of lost revenue or taxes. We agree.

The Georgia Administrative Procedure Act provides that “[t]he validity of any rule . . . may be determined in an action for declaratory judgment when it is alleged that the rule ... or its threatened application interferes with or impairs the legal rights of the petitioner.” OCGA § 50-13-10 (a). Further, “[a]ctions for declaratory judgment . . . shall be in accordance with Chapter 4 of Title 9 [the Declaratory Judgment Act].” OCGA § 50-13-10 (c). Under the Act, the superior courts are empowered to declare the rights of interested parties “[i]n cases of actual controversy,” OCGA § 9-4-2 (a), and to determine and settle any justiciable controversy with respect to the civil litigants’ “rights, status, and other legal relations.” OCGA § 9-4-1. Higdon v. City of Senoia, 273 Ga. 83, 85 (1) (538 SE2d 39) (2000); Baker v. City of Marietta, 271 Ga. 210, 213 (1) (518 SE2d 879) (1999). There can be no justiciable controversy “unless there are interested parties asserting adverse claims upon a state of facts which have accrued.” (Citation omitted.) Pilgrim v. First Nat. Bank &c., 235 Ga. 172, 174 (219 SE2d 135) (1975). To establish a legal interest sufficient to maintain standing under the Declaratory Judgment Act, a party must show that his rights are in direct issue or jeopardy. Burton v. Composite State Bd. of Med. Examiners, 245 Ga. App. 587, 588-589 (538 SE2d 501) (2000). The party must show that the facts are complete and that the interest is not merely academic, hypothetical, or colorable, but actual. Id. at 588. “Declaratory judgment will not be rendered based [upon] a possible or probable future contingency because such a ruling would be an erroneous advisory opinion.” (Punctuation and footnote omitted.) Id.

The record reveals that Monroe County challenged a total of nine DNR rules on the ground that they interfere with or impair its legal rights. However, Monroe County admits that it neither owns nor operates sources subject to seven of the nine challenged rules. Consequently, Monroe County has no protectible legal rights with respect to those seven rules. Burton, 245 Ga. App. at 588. However, Monroe County does claim that it operates sources that are threatened or impaired by the application of two rules, both of which become effective in April 2003: the Gasoline Marketing Rule, 391-3-1-.02 (2) (bbb), and the Open Burning Rule, 391-3-1-.02 (5). Monroe County claims it uses open burning as one possible means of clearing the land when it builds roads. It also claims ownership of a fuel depot. DNR points out, however, that any alleged economic consequences to those county sources from these amended rules are speculative.

At best, Monroe County has shown that these two contested DNR rules may have a future economic effect upon the county. For example, as a seller of gasoline within the meaning of Rule 391-3-1-.02 (bbb), the county will be required to sell only low sulfur gasoline. As a result, the county may have to pay more for gasoline from its vendors and that cost increase may be passed through to its consumers, which include the Board of Education, the Monroe County Mental Retardation Center, and the Older Americans Council. Whether such cost increases come to pass, however, is uncertain. Whether the county absorbs any future costs or passes them on to consumers has yet to be determined. Similarly, if the county clears land to build new roads, it may or may not choose to burn the resulting debris. The open burning rule only prohibits outdoor burning from May to September, during which time the county may decide not to build roads. Whether the burning ban results in the county using more expensive means of debris disposal remains, therefore, speculative.

Monroe County has not demonstrated that the application of the amended rules will actually adversely affect its interests in any immediate or certain way. Although a Monroe County Commissioner submitted an affidavit explaining that the new rules regulating NOx emissions from stationary gas turbines and engines for electricity generation are more restrictive and, therefore, may deter some investment in the county, there was no evidence that the new rules had actually done so. Monroe County has not shown that the new rules will interfere with or impair the county’s use of its land and jeopardize its rights to carry out express and implied statutory duties, entitling it to bring a declaratory judgment action under OCGA § 50-13-10. Consequently, the only interest Monroe County claims is harmed by the rules is a generalized economic interest that is contingent upon future events. Such interests are not legally protectible interests. See Burton, 245 Ga. App. at 588; Patterson v. State of Ga., 242 Ga. App. 131, 132-133 (528 SE2d 884) (2000); West v. Judicial Council of Ga., 184 Ga. App. 894, 895 (363 SE2d 176) (1987). For this reason, Monroe County lacks standing to challenge the rules at issue. Consequently, the trial court erred in denying DNR’s motion for summary judgment.

Decided November 26, 2001

Thurbert E. Baker, Attorney General, Robert S. Bomar, Deputy Attorney General, Isaac Byrd, Senior Assistant Attorney General, Timothy J. Ritzka, Diane L. DeShazo, Assistant Attorneys General, Owen, Gleaton, Egan, Jones & Sweeney, David C. Will, for appellants.

Vaughn, Wright & Stearns, James A. Vaughn, Frederick L. Wright II, for appellees.

2. Our decision in Division 1, supra, renders Monroe County’s remaining enumeration moot.

Judgment reversed.

Johnson, P. J., and Ruffin, J., concur.

       Appellants are the Board of Natural Resources of the Department of Natural Resources; the Department of Natural Resources; EPD; Lonice C. Barrett, in his official capacity as Commissioner of Natural Resources; and Harold F. Reheis, in his official capacity as Director of EPD.

       The national ambient air quality standard for ozone is based on the expected number of days per year with a one hour concentration of 0.12 ppm (parts per million) or greater. For an area to achieve attainment the average number of days above the standard within that area must be equal to or less than one (1), for three consecutive years. This means that if an ozone monitoring site measures four days above standard in a year, that site will be in violation even if no readings above standard are measured during the next two years.
      State Implementation Plan for the Atlanta Ozone Non-Attainment Area, § 1.1

       Rules of the Georgia Department of Natural Resources, Environmental Protection Division for Air Quality Control, Chapter 391-3-1.

       DNR Rules 391-3-1-.02 (2) (bbb), (jjj), (111), (mmm); 391-3-1-.02 (5); 391-3-1-.03 (6) (b) 11; 391-3-1-.03 (8) (c) 15, (e); 391-3-1-.03 (13).

       After Monroe County filed its original complaint, the Board of Natural Resources adopted additional revisions or amendments to the rules. Seven of the rules, rules 391-3-1-.02 (2) (tt), (w), (yy), (ccc), (ddd), (eee), and (hhh), were amended to exclude Monroe County from the compliance area. However, two amended rules, 391-3-1-.03 (8) (c) 15 and 391-3-1-.03 (13) were added. Monroe County subsequently amended its complaint to reflect the rule exclusions and additions.

       Monroe County contends the notice provided by DNR did not clearly identify the rule or rules to be amended as required by OCGA § 50-13-4 (a) (1); DNR failed to give interested persons reasonable opportunity to submit materials in opposition to the rule amendments and failed to fully consider any submitted materials as required by OCGA § 50-13-4 (a) (2); DNR did not reduce the economic impact of the rules on small businesses as required by OCGA § 50-13-4 (a) (3); and, in formulating and adopting the rule amendments, DNR failed to choose a less expensive alternative which could have achieved the same regulatory goals as required by OCGA § 50-13-4 (a) (4).

       EPD is required to submit a SIP to the United States Environmental Protection Agency to demonstrate control strategies adequate to meet federal ozone standards in Ozone Non-Attainment Areas.

       DNR Rules 391-3-1-.02 (ftj), (111), (mmm); 391-3-1-.03 (6) (b) 11; 391-3-1-.03 (8) (c) 15, (e); 391-3-1-.03 (13).


author: Smith, Presiding Judge.

text:
    A01A1147.
    COLUMBUS CLINIC, P.C. v. LISS.
    (556 SE2d 215)
   Smith, Presiding Judge.

In this action brought by the Columbus Clinic, P.C., against Dr. Jonathan Liss, a physician and former employee/shareholder, the clinic appeals from the grant of partial summary judgment to Liss on the issue of the enforceability of a noncompete covenant in an employment agreement. The trial court found that the clinic breached the employment agreement when it terminated Liss and then failed to compensate him as required by the agreement; the trial court therefore concluded that the clinic was estopped from enforcing the noncompete covenant. We find that genuine issues of material fact remain regarding whether the clinic terminated Liss or simply shortened his active employment period after Liss resigned. We therefore reverse the trial court’s grant of partial summary judgment on this issue.

The record shows that Liss and the clinic executed the employment agreement in issue on July 30,1996. Under paragraph 15 of the agreement, the clinic had the right to terminate Liss’s employment either with or without cause. If the clinic terminated Liss without cause, 60 days notice was required. If the clinic were to terminate Liss for cause, no notice was required, and the effective termination date would be the date of delivery of the written notice. Liss had the right to terminate the agreement “at any time upon thirty (30) days written notice to Employer and, except as otherwise provided in this Section 15, Employer shall be obligated only to continue to pay Employee his compensation up to the date of termination.” In addition, the agreement provided:

Following any notice of termination of employment hereunder, whether given by Employer or Employee, Employee shall fully cooperate with Employer in all matters relating to the winding up of Employee’s pending work on behalf of Employer and the orderly transfer of such work to the other professional employees of Employer. On or after the giving of notice of termination hereunder and during any notice period, Employer shall be entitled to such full-time or part-time services of Employee as Employer may reasonably require and Employer shall specifically have the right to terminate the active services of Employee at the time such notice is given and to pay to Employee the compensation due to him under Section 4 of this Agreement for the duration of the notice period.

Paragraph 21 of the agreement provides: “Any and all notices required or permitted to be given under this Agreement will be sufficient if furnished in writing, sent by registered or certified mail to his last known residence in the case of Employee or to its principal office in Columbus, Georgia, in the case of Employer.” The agreement contains no severability clause.

The record shows that on October 5, 1998, Liss left a handwritten letter on the desk of the medical director, which stated:

Pursuant to our conversation of 10-2-98 I offer my resignation to the Columbus Clinic P.C. I will be pleased to meet with you regarding a negotiated separation date but feel midnight 1-1-99 is reasonable. I immediately resign from all clinic committees & officer position so that no conflict of interest is inferred.

At its October 15, 1998 meeting, the clinic’s board of directors accepted Liss’s resignation. Shortly after that, the clinic’s medical director and its administrator met with Liss and informed him that the clinic was taking Liss’s October 5 letter as a letter of resignation, that they were allowing 30 days notice, and that November 5, 1998, would be his last day at the clinic. The medical director testified on his deposition that the clinic paid Liss through the 30-day notice period. Liss then opened his practice elsewhere in Columbus effective November 6, 1998.

Liss testified on his deposition that in a conversation prior to his letter, the clinic’s administrator asked him to give “plenty of notice” of his leaving the clinic, so that the clinic would not be “caught short.” Liss testified that he offered the letter three months in advance of the date he intended to leave for just that reason, but that it was not an “official resignation,” since he believed that such resignation notice was required to be delivered by registered or certified mail. He maintained that the clinic had “fired” him when he was told to leave on November 5, 1998, and that the clinic had done so without the notice period required by the agreement.

Dr. Richard Wood, who was the medical director of the clinic at the time in issue, testified on his deposition that he had several meetings with Liss concerning the departure of Liss from the clinic, at some of which Mr. Alexander, the clinic’s administrator, was also present. He testified that they tried to persuade Liss to stay at the clinic. When it became obvious that they could not work things out, Wood and Alexander determined that Liss’s continued presence at the clinic “was going to be disruptive for many reasons.” At that point, Wood and Alexander decided to “exercise the thirty day clause in our contract” and inform Liss that he must leave the clinic by November 5, 1998. Wood explained that this date was determined because Liss’s October 5 letter was considered a letter of resignation, and “to me that’s, I mean he was terminating his employment with the Columbus Clinic.” According to Wood’s understanding of the employment agreement, the clinic could “then elect to only accept thirty days of resignation, and we did. So October 5th to November 5th.”

It is therefore apparent from the deposition testimony that the parties viewed the October 5 letter very differently. The question of whether the October 5 letter was an “official” letter notifying the clinic that Liss was terminating his employment is crucial. If it was such an “official” termination notice, it “triggered” the clinic’s right to choose to have the active service of Liss for only 30 days and to pay him for only those 30 days. If it was not an “official” termination letter, as argued by Liss, but only his attempt to be “kind and decent” to the clinic and offer as much warning as he could give, so that the clinic could make appropriate plans, the clinic had no right to “fire” Liss with less than 30 days notice unless it was for cause.

This question arises partly because the employment contract itself is ambiguous. The notice provision in the agreement states that all notices “will be sufficient” if they are written and are sent by registered or certified mail. This is clear and unambiguous as to notices sent in that manner. The agreement does not state, however, whether these conditions are necessary as well as sufficient. The record does not reflect whether the trial court applied the rules of contract interpretation to resolve this ambiguity or even if the trial court found there was an ambiguity. Indeed, the court appears to have disregarded the October 5 letter entirely. See generally Deep Six v. Abernathy, 246 Ga. App. 71, 73 (2) (538 SE2d 886) (2000). After applying the rules of contract construction, we find that the ambiguity remains. A jury will have to decide this issue.

Further, we get no help from the letter itself, which also is ambiguous. While it does “offer” Liss’s “resignation,” it also appears to state Liss’s intention not to resign immediately, or within 30 days, but approximately 90 days in the future, on a date certain, unless after negotiation some other date was found suitable. The ambiguous nature of the resignation itself is contrasted with Liss’s statement that he was “immediately” resigning from committees and his officer position to avoid the appearance of a conflict of interest. In addition, the letter was simply laid on the desk of Dr. Wood, the medical director, rather than being mailed by certified or registered mail.

On appeal, we review the trial court’s grant of summary judgment de novo to determine whether the evidence of record, viewed in a light most favorable to the nonmoving party, demonstrates any genuine issue of material fact. Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

(Footnotes omitted.) Preferred Real Estate Equities v. Housing Systems, 248 Ga. App. 745 (548 SE2d 646) (2001). Here, a genuine issue of material fact exists as to whether Liss’s October 5 letter was a notice of termination of employment that “triggered” other aspects of the employment agreement. Liss testified that he did not intend it to be; he intended to send an “official” notice by certified or registered mail 30 days before his separation date. The clinic’s medical director testified that he understood that the October 5 letter was a notice of termination of employment and acted accordingly. “The intention with which an act itself is done is peculiarly a question for the jury.” Johns v. Ridley, 245 Ga. App. 710, 712 (1) (537 SE2d 746) (2000).

Decided November 6, 2001

Reconsideration denied November 27,2001.

Denney, Pease, Allison & Kirk, Ray L. Allison, Marchetti & Lomax, Robert R. Lomax, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, James E. Humes II, for appellee.

A question of credibility cannot be resolved on summary judgment. In a summary judgment case this court cannot consider the credibility of a witness . . . concerning his state of mind or intention; and where his statement in relation thereto conflicts with other strong evidence to the contrary, a jury must decide the credibility question and resolve any remaining conflict.

(Citations and punctuation omitted.) Tri-Cities Hosp. Auth. v. Sheats, 156 Ga. App. 28, 32 (273 SE2d 903) (1980), aff’d, 247 Ga. 713 (279 SE2d 210) (1981).

Because issues remain for jury resolution as to both the contract and the meaning of the October 5 letter, the trial court erred in granting partial summary judgment to Liss.

Judgment reversed.

Barnes and Phipps, JJ, concur.

       Other issues, including whether the clinic waived payment by Liss under a stock subscription agreement and whether Liss is entitled to recover additional expenses under his counterclaim, remain pending below.

       The trial court denied Liss’s motion for partial summary judgment on the issue raised in his counterclaim of whether he was entitled to additional compensation for the additional expenses necessitated by his precipitous departure. Liss has not, however, filed a cross-appeal.