author: Birdsong, Presiding Judge.

text:
    A92A1872.
    LANGFORD v. ROYAL INDEMNITY COMPANY.
    (430 SE2d 98)
   Birdsong, Presiding Judge.

Appellant Shirley Langford appeals the trial court’s order granting summary judgment to her uninsured motorist carrier.

An NGR truck slid or swerved into appellant’s driving lane causing her to take evasive action; she avoided colliding with the truck but ran into the road curbing and sustained personal injury. Appellant brought suit for damages against NGR which asserts, inter alia, a third-party negligence defense. NGR claims that a Buick, whose driver and owner are unknown, stopped in front of its truck causing NGR’s driver to come to an immediate stop, that its truck bumped the Buick and, that in the process of stopping, the truck trailer slid into appellant’s lane. Although appellant did not personally see the Buick, after being served with NGR’s answer, appellant added a “John Doe” defendant and served her uninsured motorist carrier, Royal Indemnity Company (Royal). Royal filed an answer denying liability and a motion for summary judgment; the trial court granted the motion. Held:

1. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843).

2. Royal asserts it is entitled to summary judgment because it is not a party to this action, and that it merely filed pleadings as the uninsured motorist carrier. Appellee’s brief filed with this court is captioned “Brief of Appellee ‘John Doe’ by Royal Indemnity Company as the Uninsured Motorist Carrier.” However, the record reveals that Royal filed an answer captioned in its own name, to-wit: Answer of Royal Insurance Company of America. While in this pleading Royal identifies itself as “the purported uninsured motorist carrier of plaintiff,” it filed its answer as Royal Insurance Company of America, and in its own name “prayfed] that . . . the claim as to Royal Insurance Company of America be dismissed.”

OCGA § 33-7-11 (d) provides “the insurance company shall have the right to file pleadings and take other action allowable by law in the name of ‘John Doe’ or itself.” (Emphasis supplied.) Although appellee Royal attempts to mend the style of its pleading on appeal so as to file in the name of “John Doe,” its status is determined by the nature of its filing election before the trial court. By electing to participate directly in this suit by filing an answer in its own name, rather than in the name of John Doe (or, where appropriate, in the name of the uninsured motorist), Royal, the uninsured motorist carrier, assumed the status of a named party as a matter of law. Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 169 (268 SE2d 676), citing Home Indem. Co. v. Thomas, 122 Ga. App. 641 (178 SE2d 297).

Royal also filed an amended answer in its own name without any reference to its status as uninsured motorist carrier. Compare Moss, supra. Royal also filed in its own name, without qualification as to status, a request for the filing of original discovery, and subsequently filed in its own name, after reciting that it had been served as a purported uninsured motorist carrier, a motion for summary judgment. Appellee, by virtue of this conduct, would be deemed a party to the action even had it elected to answer solely in behalf of “John Doe.” Garrett v. Standard &c. Ins. Co., 201 Ga. App. 251 (410 SE2d 806).

Additionally, Royal elected to litigate the question of coverage under the policy. Royal could not litigate the question of coverage in this suit unless it had in fact become a party defendant. See Maxwell v. State Farm Ins. Co., 196 Ga. App. 545 (1) (396 SE2d 291); but see Hoffman v. Doe, 191 Ga. App. 319 (381 SE2d 546).

Appellee’s contention as to its status in this suit is frivolous.

3. Appellant contends that OCGA § 33-7-11 (b) (2) notwithstanding, she was vested with greater rights under the terms of her insurance contract with Royal, and that therefore genuine issues of material fact exist as to its uninsured motorist claim.

(a) A contract that is in compliance with the requirements of governing statutes may include provisions different from and more liberal than those prescribed by such law (Maxwell, supra at 546); conversely, a contract provision is unenforceable if it fails to comply with existing, governing statutory requirements by attempting to provide fewer rights than legally mandated by such statute, as “one cannot do indirectly that which the law does not allow to be done directly” (Richmond County v. McElmurray, 223 Ga. 440, 443 (1) (156 SE2d 53)). A contract provision normally should not be enforced where it conflicts with the general policy and spirit of the statute which governs it, although there may be no literal conflict; that is, it makes no difference whether the statutory prohibition or command is expressed or implied. 17A AmJur2d, Contracts, § 252.

(b) In construction of the insurance provision, certain principles of contract construction apply: provisions of an insurance policy are to be construed strictly against the insurer who drafted them (Southern Guaranty Ins. Co. v. Goddard, 259 Ga. 257, 259 (379 SE2d 778)); contracts wherever possible should be given a construction that renders them in compliance with governing statutes rather than in contravention thereof (Grantham Transfer Co. v. Hawes, 225 Ga. 436, 443 (169 SE2d 290)); and if an insurance contract is capable of being construed two ways, it will be construed against the insurance company and in favor of the insured (Claussen v. Aetna Cas. &c. Co., 259 Ga. 333 (1) (380 SE2d 686)).

(c) The insurance policy defines an uninsured motor vehicle as including a land motor vehicle which is a hit and run vehicle whose operator or owner cannot be identified and which hits or which causes an accident resulting in bodily injury or property damage without hitting “your covered auto.” The policy also contains the following limiting provision regarding an uninsured motor vehicle: “If there is no physical contact with the hit and run vehicle the facts of the accident must be corroborated by an eyewitness to the accident other than the ‘insured’ making the claim.” In this case, there was no physical contact, direct or indirect, between the phantom vehicle and the claimant’s vehicle; at most, there was physical contact between the truck and the phantom vehicle — the chain of physical contact thereafter being broken when appellant successfully avoided any touching of the truck’s trailer with her vehicle. Accordingly, we need not re-visit the issue of “indirect physical contact.” State Farm Fire &c. Co. v. Guest, 203 Ga. App. 711, 713 (417 SE2d 419).

The limiting provision in the insurance contract at issue is substantially the same as that interpreted by this court in Maxwell, supra. Appellant asserts that Maxwell is controlling. Royal, however, asserts that Maxwell is distinguishable, and that this court must interpret the term “corroborated” as used in the contract provision. Royal argues that it is not sufficient that a sole eyewitness testify to facts which would support a plaintiff’s averments in the complaint when the averments are not supported by any evidence other than what the eyewitness has said. In other words, Royal contends that claims averments must be based on some evidence independent of the testimony of the eyewitness. In so claiming, Royal argues that this result is obtained because the term “corroborated,” as used in both the statute and contract, means “to add weight or credibility to a thing by additional and confirming facts or evidence, and ‘corroborating evidence’ means evidence supplementary to that already given . . . additional evidence of a different character to the same point.” (Emphasis omitted.)

In Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48 (397 SE2d 466), we construed the provisions of OCGA § 33-7-11 (b) in a situation where the claimant did not see the phantom vehicle and there was an eyewitness who was not involved in the incident. We found that “the intent of the legislature [was] to create a reasonable rule which would reduce the possibility of fraudulent claims where the phantom vehicle did not cause actual physical contact, while still allowing an innocent automobile victim ‘coverage for accidents caused by unknown motorists where the unknown motorist vehicle does not physically contact the insured’s vehicle,’ but where the claimant’s assertions of a phantom vehicle could be corroborated by an eyewitness.” Id. at 50. Consistent with this intent, it was concluded that “we do riot believe that the legislature intended to create a rule which would arbitrarily preclude coverage ... of a victim injured so rapidly or so severely she could not testify as to how the occurrence happened, regardless of the number of competent witnesses available to testify as to the actual involvement of a . . . phantom vehicle.” Id. We further found that the claimant did not have to be able to tender her own eyewitness account in order to establish the requisite causal connection between the John Doe driver and the accident. Id. Thus, it is apparent that the claimant need not in each and every case personally witness the phantom driver’s conduct or even be aware of the vehicle’s presence to maintain her uninsured motorist claim under the statute; neither does the statute require that there be two eyewitnesses, such as, the claimant and a third party or two third parties, or even that the eyewitness be a disinterested third-party witness. Id. What is required by statute is that the claimant’s “description” be corroborated by an eyewitness to the occurrence other than the claimant. The statutory term “description” is merely a statement, account, or picture in words that describes; descriptive representation; the act or method of describing. Id. Consistent with our prior definition of the term “description,” we conclude that the intended, and usual and common signification, of the term “corroborate” (OCGA § 13-2-2 (2)), as that term is employed in OCGA § 33-7-11 (b) (2), is simply “to make more certain” (Webster’s Encyclopedic Unabridged Dictionary of the English Language, 1989 ed.) or to strengthen (Black’s Law Dictionary, 5th ed.). Thus, what is provided under OCGA § 33-7-11 (b) (2) is that physical contact is not required to be established when the description, that is, the descriptive representation or statement, contained in claimant’s pleadings of how the incident occurred is corroborated, that is, made more certain or strengthened, by an eyewitness to the occurrence other than the claimant. The claimant does not in each and every case have to have personal knowledge of the phantom vehicle; and, the extent and form of corroboration necessary will vary according to the circumstances of each case — seeking always to comply in a just manner with the intent of the legislature as expressed in Crews, supra.

Although the term “corroborate” can be given a more liberal meaning than that attributed to the word in the statute, it cannot be given a more restrictive meaning in the contract so as to vest appellant with fewer rights or privileges than mandated by the governing statute. Compare Richmond County, supra; Maxwell, supra. Even though the limiting provision of the contract purports to require the corroboration of “facts,” it cannot be interpreted in such a manner as to require more than the corroboration of a description, within the meaning of OCGA § 33-7-11 (b) (2). Notwithstanding the employment of the term “corroboration” in the contract provision in this case (a term likewise employed in the insurance provision construed in Maxwell, supra), Maxwell concluded that the contract provision pertaining to “ ‘the facts of the accident’ are not necessarily dependent upon the personal observations of the claimant.” Id. at 547. Accordingly, in this case, as in Maxwell and unlike the circumstances in Curtis v. Allstate Ins. Co., 203 Ga. App. 25 (416 SE2d 359) and Hoffman v. Doe, 191 Ga. App. 319 (381 SE2d 546), “appellant would not be required to provide a corroborated firsthand account of the insured event to state a claim for coverage. Appellant can state a claim for coverage under the terms of her policy by merely asserting the existence of facts which are not necessarily within her personal knowledge and she would be entitled to benefits if those asserted facts can be corroborated by someone who was an eyewitness to their occurrence,” even if such eyewitness also was involved in the collision and was not a disinterested witness. (Emphasis supplied.) Maxwell, supra at 547. Assuming without deciding that Hoffman, supra, and Curtis, supra, correctly hold that OCGA § 33-7-11 (b) (2) authorizes a limitation of coverage to those instances wherein the claimant is himself a corroborated eyewitness to the asserted fact of John Doe’s involvement (but compare Crews, supra), the policy that was issued in this case to appellant by Royal extends coverage to those instances wherein an eyewitness can corroborate John Doe’s involvement as actually asserted by claimant in its description of facts in its amended complaint (utilizing, of course, no definition of “description” or of “corroborate” more restrictive than as those terms are employed in the governing statute). “Because the policy that was issued by appellee does extend broader coverage [in the case at bar] than would be required under OCGA § 33-7-11 (b) (2) as construed in Hoffman v. Doe . . . we need not address the issue of the continued viability of the narrow construction that was given to the statutory language in that case.” (Second emphasis supplied.) Maxwell, supra at 547-548.

(d) Moreover, we note that in this case appellant/claimant could have based her pleading averment as to the existence of a phantom driver on more than mere conjecture; in addition to eyewitness corroboration, a claimant’s description of a phantom vehicle situation can be supported by other than direct testimony, as “the existence of a phantom vehicle may be established by the circumstances, opinion testimony and from ‘the jury’s common sense. . . .’” Guest, supra at 715 (Pope, J., concurring, citing J. C. Penney Cas. Ins. Co. v. Woodard, 190 Ga. App. 727 (380 SE2d 282)). In this instance, appellant testified that the truck suddenly skidded into her lane of traffic; it can be reasonably inferred in behalf of the party opposing the motion for summary judgment (appellant) that the truck skidded on the road because it applied its brakes in a sudden emergency. Thus, the truck driver’s testimony is supported by some circumstantial evidence, albeit slight. (We agree, however, that the truck driver’s testimony about bumping the phantom vehicle and denting his truck’s bumper is not independent evidence that any physical contact occurred; for example, neither the bumper nor a photograph thereof was entered in the record in such a manner as to comply with the requirements of OCGA § 9-11-56.)

We conclude appellant/claimant could rely upon the eyewitness testimony alone, or in conjunction with the above-discussed circumstantial evidence, in prosecuting his uninsured motorist claim under the terms of his insurance contract with Royal. In doing so, appellant was authorized to plead in the alternative. See Ditch v. Royal Indem. Co., 205 Ga. App. 478 (422 SE2d 868).

(e) However, there remains the question whether appellant effectively pled an uninsured motorist claim by averring a “description . . . of how the occurrence occurred” adequate to satisfy the requirements of OCGA § 33-7-11 (b) (2). We find that she did not. Appellant’s amended complaint averred she suffered damage “as a result of a collision between her auto and the curbing when a vehicle driven by an employee of . . . NGR . . . swerved into her lane of traffic . . . causing [her] to take evasive action to avoid a collision with [NGR’s] truck. . . . [NGR’s] employee may have swerved into [appellant’s] lane to avoid a vehicle driven negligently by an unknown third-party driver as alleged by the driver in the accident report prepared by the police officer at the scene.” Although appellant thereafter prays for relief based either on the negligence of the truck driver, or the negligence of the unknown driver “John Doe,” or a combination of the negligence of both, she failed in her amended complaint to provide a statement or descriptive representation of “how the occurrence occurred”; her alternative averment constituted nothing more than a speculative allegation of how the occurrence may have occurred; and the speculative nature of this averment is not cured by a subsequent general averment that appellant’s negligence was caused by the unspecified negligence of the “John Doe” driver either alone or with the negligence of the truck driver. Accordingly, appellant failed to plead adequately in the alternate an uninsured motorist claim. Cf. Ditch, supra (allegation in complaint constituted factual admission denying that acts of John Doe defendant caused the collision; thus pleadings could not contain a viable description of how the accident occurred involving an uninsured motorist). Accordingly, appellant’s amended complaint fails to state in the alternative an uninsured motorist claim on which relief can be granted; and as the trial court considered matters outside the pleadings, it could have granted summary judgment to appellee as to. this matter (OCGA § 9-11-12 (b)), even if appellant did not move for summary judgment on this ground. Cf. Golston v. Garigan, 245 Ga. 450 (1) (265 SE2d 590) (summary judgment can be granted to a non-moving party). We affirm the judgment, as we will not reverse the correct decision of a trial court regardless of the reason given therefor. National Consultants v. Burt, 186 Ga. App. 27, 33 (2) (366 SE2d 344); accord Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673).

Decided March 10, 1993 —

Reconsideration denied March 24, 1993

Michael R. Casper, for appellant.

Johnson, Benedict & Davis, Noel H. Benedict, M. Windle Davis, Jr., Saveli & Williams, John C. Parker, for appellee.

Judgment affirmed.

Andrews, J., concurs. Beasley, J., concurs in Divisions 1 and 2 and in the judgment.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A92A1921.
    GAULT et al. v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH.
    (430 SE2d 63)
   Blackburn, Judge.

This wrongful death action was filed in Fulton County by the administrators of the estates of Wendy Phillips and Stephen Bell and the guardians of the decedents’ minor children. Named as defendants were James Riffe, driver of the truck that collided with the decedents’ vehicle; Ligón Nationwide, Inc. (“Ligón”), a motor common carrier and employer of Riffe; National Union Fire Insurance Company of Pittsburgh (“National Union”), Ligon’s liability insurance carrier; the state Department of Transportation (“DOT”), which constructed and maintains the highway on which the collision occurred; and Van Etheridge, an employee of DOT. Ligón and Riffe raised the issue of improper venue and filed a motion to dismiss or transfer the action, and DOT and Etheridge filed a similar motion. Plaintiffs then added Dunlop Tire Corporation (“Dunlop”), manufacturer of the truck tires, as a defendant. The trial court ordered the action transferred to Monroe County as to all defendants but Dunlop and National Union. The trial court certified the transfer order for immediate review, and we granted plaintiffs’ application for interlocutory appeal.

The accident out of which this action arises occurred in Monroe County when a tractor trailer driven by appellee Riffe crossed the median of 1-75 and collided with Phillips’ and Bell’s vehicle. In their complaint, appellants allege that Riffe operated the truck in a negligent manner and that Ligón is liable for Riffe’s negligence and for its failure to maintain the truck properly. They allege further that DOT and its agent Etheridge negligently designed and maintained the highway and median. Appellants’ claim against Dunlop is stated in strict liability, and National Union is joined under OCGA § 46-7-12 (e).

Appellants contend that venue over appellees and the other defendants is proper in Fulton County. Riffe is a Kentucky resident. Ligón, a Kentucky corporation, is an interstate motor common carrier registered in Georgia under OCGA § 46-7-16 (a) with a registered agent (OCGA § 46-7-17 (a)) in Fulton County. Etheridge is a resident of Bibb County, and DOT is a department of the State of Georgia. National Union and Dunlop are foreign corporations registered to do business in Georgia, and each has a registered office and registered agent for service in Fulton County.

Venue for suits against individuals ordinarily lies in the county of the defendant’s residence, and venue as to corporations, whether foreign or domestic, is established by statute. 1983 Ga. Const., Art. VI, Sec. II, Par. VI. Thus, we must determine whether any of the appellees are deemed residents of Fulton County by statute so as to be subject to suit in that venue, or, alternatively, whether appellees and the other defendants may be sued in Fulton County as joint tortfeasors pursuant to 1983 Ga. Const., Art. VI, Sec. II, Par. IV.

1. Riffe: As appellee Riffe has conceded on appeal, venue over him as a nonresident motorist is established by the Nonresident Motorist Act, OCGA § 40-12-1 et seq. OCGA § 40-12-3 provides, inter alia, that actions brought under the Act “relating to the use of the highways of this state by nonresident motorists shall be brought in the county in which the accident or injury occurred or the cause of action originated. . . . Where [such an action] is brought against a resident of this state; any nonresident involved in the same accident or collision and who is suable under [the Act] may be joined as a defendant in the county wherein the resident defendant is suable. . . .” Pursuant to this provision, venue over Riffe is proper in Monroe County, where the collision occurred. For venue purposes Dunlop is deemed to reside in Fulton County, the site of its registered office, pursuant to OCGA § 14-2-510 (b) (1). The rupture of the tire manufactured by Dunlop is alleged to have “involved” Dunlop in the collision, and thus Riffe also may be sued in Fulton County as a joint defendant with Dunlop, a “resident defendant” under OCGA § 40-12-3.

2. Ligón: OCGA § 46-7-17 (b) provides that actions against nonresident motor common carriers may be brought in the county in which the cause of action arose. The statute, however, expressly states that the venue prescribed therein “shall be cumulative of any other venue provided by law.” Consequently, our courts have held that venue over a nonresident motor common carrier also may be had in the county of its registered office, Jones v. Chandler, 88 Ga. App. 103 (76 SE2d 237) (1953); see Thomas v. Bobby Stevens &c. Contractors, 165 Ga. App. 710, 712-713 (302 SE2d 585) (1983); under the Nonresident Motorist Act, OCGA § 40-12-3; Parker v. Ryder Truck Lines, 150 Ga. App. 163 (257 SE2d 18) (1979); and under the constitutional joint tortfeasor provision. Jones, supra at 104-105. Thus, venue over Ligón is proper in Monroe County, where the accident occurred, under either OCGA § 46-7-17 (b) (nonresident motor common carrier) or OCGA § 40-12-3 (nonresident motorist). Parker, supra. Venue against Ligón also properly lies in Fulton County as the location of Ligon’s registered office, Jones, supra, and as the residence of Dunlop, a joint defendant under the Nonresident Motorist Act, OCGA § 40-12-3, and a joint tortfeasor. See Division 3, infra.

3. Etheridge: As an individual defendant, Etheridge is subject to suit in Bibb County, the county of his residence. 1983 Ga. Const., Art. VI, Sec. II, Par. VI. In addition, the Supreme Court held in Donaldson v. Dept. of Transp., 262 Ga. 49, 53-54 (4) (414 SE2d 638) (1992) that because an action against a DOT employee for discretionary acts is actually a suit against the state, under OCGA § 32-2-5 (b) venue for such actions lies in the county where the cause of action arose. Accordingly, venue against Etheridge may be had in Fulton County only if he is an alleged joint tortfeasor with a defendant resident in Fulton County. See 1983 Ga. Const., Art. VI, Sec. II, Par. IV.

The test for joint tortfeasors was set forth in Gilson v. Mitchell, 131 Ga. App. 321 (205 SE2d 421) (1974), aff'd 233 Ga. 453 (211 SE2d 744) (1975): “[E]ven though voluntary, intentional concert is lacking, if the separate and independent acts of negligence of several persons combine naturally and directly to produce a single indivisible injury, and a rational basis does not exist for an apportionment of damages, the actors are joint tortfeasors.” Id. at 330-331. When determining whether a joint tortfeasor relationship exists, if there was no concert of actions, we then look to the combined effect of the several acts. If the combined result is a single and indivisible injury, the tortfeasors are joint. Gay v. Piggly Wiggly Southern, 183 Ga. App. 175, 177-178 (2) (358 SE2d 468) (1987).

In the instant case at bar, National Union cannot be considered a joint tortfeasor for venue purposes because the cause of action against it arises in contract. Thomas, supra at 711-712. The claims against the other defendants, however, do arise in tort, including the claim against Dunlop. Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559, 560 (272 SE2d 251) (1980) (held, given that the theoretical basis of a strict liability claim is in tort, a defendant in a strict liability action is considered a joint tortfeasor with other negligence defendants provided the other aspects of the joint tortfeasor definition are met).

The alleged negligent acts of Ligón and Riffe were separate from those of DOT and Etheridge and from those of Dunlop, but the injury, death, was single and indivisible. Gay, supra at 181. Accordingly, the tortfeasors are joint, and venue proper as to one tortfeasor is proper as to all. Id. Since Dunlop is deemed a resident of Fulton County for venue purposes, Etheridge can be joined in Fulton County as a joint tortfeasor with Dunlop.

4. DOT: As discussed in Division 3, supra, under OCGA § 32-2-5 (b) venue against DOT lies in the county where the cause of action arose. Our research has disclosed no case squarely addressing the question whether a state department or agency can be considered a joint tortfeasor with other resident defendants for venue purposes. In Glover v. Donaldson, 243 Ga. 479 (254 SE2d 857) (1979), the Supreme Court considered whether the joint tortfeasor provision of the constitution could be used to obtain venue against MARTA in a county other than that in which venue against MARTA was provided by statute. The court reasoned that the venue statute was not a condition of the state’s consent to suit against MARTA, and that the statute could not be asserted to narrow the scope of constitutional venue provisions. Accordingly, the court held that the venue statute fixed venue for suits in which MARTA was the sole defendant, but the constitutional joint tortfeasor venue provision could be applied when MARTA was sued as a joint tortfeasor. Accord Schwarcz v. Charlton County, 211 Ga. 923, 927-928 (2) (89 SE2d 881) (1955) (county may be joined as joint tortfeasor in action filed in county of corporate co-defendant’s residence).

Decided March 9, 1993 —

Reconsideration denied March 24, 1993.

Smolar, Roseman, Brantley & Seifter, Yehuda Smolar, Barry L. Roseman, James I. Seifter, Thomas A. Rice, Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellants.

Michael J. Bowers, Attorney General, Charles M. Richards, George P. Shingler, Senior Assistant Attorneys General, Susan J. Levy, Staff Attorney, Nall, Miller, Owens, Hocutt & Howard, James S. Owens, Jr., George R. Neuhauser, Kenneth P. McDuffie, for appellee.

We hold that the analysis in Glover is applicable to this case. Like the MARTA venue statute, OCGA § 32-2-5 was not enacted as a component of the legislative scheme waiving sovereign immunity, as the sovereign immunity waiver applicable to this action appeared at former Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution, and OCGA § 32-2-5 was enacted in 1973. Ga. L. 1973, pp. 947, 983. Moreover, this court has held that OCGA § 32-2-5 is cumulative, not exclusive, of other venue provisions. Jahncke Svc. v. Dept. of Transp., 134 Ga. App. 106, 108-110 (3) (213 SE2d 150) (1975) (citing former Ga. Code Ann. § 95A-304). Thus, we hold that DOT may be joined in Fulton County as a joint tortfeasor with Dunlop.

5. The ruling of the trial court is reversed and the case is remanded with direction to transfer the action back to Fulton County.

Judgment reversed and remanded with direction.

McMurray, P. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A92A1962.
    LEWALLEN v. THE STATE.
    (429 SE2d 684)
   Cooper, Judge.

Appellant was convicted in a jury trial of enticing a child for indecent purposes, rape, incest, cruelty to children and two counts of child molestation. He appeals from the denial of his motion for new trial, raising as his sole enumeration of error the trial court’s denial of his motion for a mistrial.

Prior to the trial, appellant was suffering from a hernia which caused portions of his intestines to protrude through his groin area. To prevent the protrusion, which was visible through his pants, appellant would hold his groin area in his hand and attempt to push the bulging area back into place. Appellant moved for a continuance to obtain medical treatment prior to commencement of the trial because of the potential for prejudice which could result from a jury seeing him appearing to fondle himself during the trial on various sex offenses. The court denied his request but ordered that appellant’s movements about the courtroom take place outside the presence of the jury. However, on the second day of the trial, when appellant was brought into the courtroom, clutching his groin, the jury was already seated in the jury box. Appellant moved for a mistrial, which the trial court denied. The trial judge then advised appellant of the curative instructions it intended to give, to which appellant replied, “In light of that and without waiving my motion — I think that the corrected instructions may be appropriate, but I’m not sure they’ll completely correct the errors.” The curative instructions were then given, and the trial resumed.

Decided January 26, 1993 —

Reconsideration denied March 24, 1993.

Ruskell & Harris, G. Channing Ruskell, for appellant.

Garry T. Moss, District Attorney, Cecelia V. Moutoux, Assistant District Attorney, for appellee.

“ Tf a motion for a mistrial is overruled but corrective instructions are given by the court and thereafter counsel fails to request further instructions or [fails to renew] his motion for a mistrial, the overruling of the motion is not regarded as error. (Cits.)’ [Cit.]” Fulbright v. State, 194 Ga. App. 827, 828 (2) (392 SE2d 298) (1990). Appellant’s counsel’s remarks prior to the curative instructions did not preserve this issue for review on appeal; therefore, any error in failing to grant a mistrial was cured by the trial court’s instructions. Quick v. State, 198 Ga. App. 353 (1) (401 SE2d 758) (1991).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A92A2040.
    SHEPHERD et al. v. AARON RENTS, INC.
    (430 SE2d 67)
   Blackburn, Judge.

On October 1, 1987, Aaron Rents, Inc., purchased an office furniture company called Ball Stalker Company from the appellants, James M. Shepherd, Jr., and Ball Stalker Holding Company (the sellers). The purchase price was $2,500,000 cash, plus assumption of approximately $5,500,000 in liabilities, and the sales contract contained purported warranties by the sellers regarding the saleability and value of certain company inventory. That inventory eventually sold for much less than its value represented in the contract, and Aaron Rents subsequently commenced this action against the sellers for a breach of those warranties. A jury returned a verdict for Aaron Rents in the amount of $398,000 damages, $11,144 prejudgment interest, and $150,000 attorney fees due to the sellers’ bad faith in the underlying transaction. This appeal followed the denial of the sellers’ motion for judgment n.o.v. and, alternatively, for new trial.

Ball Stalker Company sold two basic types of office furniture: “case goods,” which consisted of assembled, stand-alone items such as tables, chairs, desks, and credenzas; and custom “systems,” which consisted of furniture created by assembling many components and parts designed for a particular office. These custom systems involved combinations of up to 1,000 parts, 30 to 40 different fabrics, and approximately 100 colors. The components and parts made by one manufacturer were not compatible with those of another manufacturer, and even components of one line of furniture made by a manufacturer could not be interchanged with those of another line by the same manufacturer.

The company inventory that became the subject matter of this lawsuit consisted of miscellaneous components and parts (from various manufacturers) left over from installations of custom systems. This systems inventory, some of it in boxes and some not, was stored in a dusty concrete basement with no air conditioning. Use of these leftover components and parts in creating new systems proved difficult because of the variation in size, color, fabric, finish, and number of different manufacturers of the products, and the lack of any perpetual inventory tracking system.

Charles Harper was the chief operating officer of Ball Stalker Company from September 1985 until Aaron Rents’ acquisition of the company in October 1987, when he was given primary responsibility over the company’s warehouse, delivery, and installation operations. At trial, Harper testified that no more than five percent of the systems inventory had been sold during the two years preceding the acquisition. He did not recall any sales or dispositions of that inventory having occurred from June 1, 1987, to October 1, 1987. After Aaron Rents’ acquisition of the company, Harper intensified the efforts to sell the systems inventory, such as by increasing commission incentives on that inventory, but over the course of the next two years he was able to sell off the inventory for a total of only $200,000. In retrospect, Harper was of the opinion that the systems inventory could not be sold in the ordinary course of the business.

An expert on “systems” furniture also testified that, without a remanufacturing division (which Ball Stalker Company did not have), the prospects for using leftover components and parts were “slim to none.” He stated that in the furniture industry, such leftovers are considered to be “scrap,” and generally are not saleable in the ordinary course of a dealer’s business. He estimated the value of leftover systems components and parts to be five percent of the dealer cost.

The company’s book value assigned to that systems inventory as of May 31, 1987, however, had been $1,117,446.95. There were no other inventory counts and valuations between the time of the May 1987 inventory count and Aaron Rents’ acquisition of the company. In October 1987, the current cost of the systems inventory was assessed at $1,352,000.

1. The sales contract executed on October 1, 1987, provided that “[a]s an inducement to purchaser to enter into this agreement,” the sellers warranted that the systems inventory (a) was “of a quality and quantity usable and saleable in the ordinary course of the company’s business,” and (b) was “carried on the company’s books of account at the lower of cost or market, with the exception that certain items of inventory . . . may have a realizable market value which is less than the values at which such items are carried on the company’s books. Such difference should not exceed approximately $250,000.” On appeal, the sellers contend that this contract provision merely constituted a nonactionable expression of opinion as to value, and was not a warranty.

“ ‘The decisive test, in determining whether language used is a mere expression of opinion or a warranty, is whether it purported to state a fact upon which it may fairly be presumed the seller expected the buyer to rely and upon which a buyer would ordinarily rely. If the language used is of that character, the fact of reliance on the part of the buyer and the presumption of intent on the part of the seller which the law would raise in such a case would operate to create a warranty.’ ” Smith v. Frazer, 144 Ga. 85, 88 (86 SE 225) (1915). “ ‘No particular form of words is necessary to constitute a warranty. ... To make an affirmation at the time of sale a warranty, it must appear to have been so intended, and not to have been a mere expression of opinion. . . . [W]hether the words used amount to a warranty or not, is a question for the jury. . . .’” Bell v. Menzies, 110 Ga. App. 436, 438 (138 SE2d 731) (1964).

In the instant case, the contract prefaces the purported warranty regarding the value of the systems inventory by stating that it was given as an inducement to enter the agreement. The purported warranty assigned a specific value to the inventory, i.e., that carried on the company’s books, and indicated that the valuation was a conservative one. It certainly could be found that the terms of this purported warranty were intended to cause the purchaser’s reliance upon the valuation, and that the assigned valuation was so definite and factual, that it would not be mere opinion. The fact that the sellers reserved a “cushion” of $250,000 regarding the valuation of some of the inventory further suggests that the sellers intended to give a warranty, inasmuch as such a cushion to avoid liability would be unnecessary if merely an opinion were expressed. Under these circumstances, at least a jury question existed as to whether a warranty was made, and the trial court properly denied the sellers’ motion for directed verdict and motion for judgment n.o.v. on this ground.

2. The sellers also contend that the evidence failed to establish that the systems inventory did not consist of items of a quality and quantity usable and saleable in the ordinary course of the business, and that the trial court erred in allowing that issue to be presented to the jury. However, the sellers failed to raise this evidentiary ground in moving for directed verdict and for judgment n.o.v. A motion for directed verdict must state the specific grounds therefor, OCGA § 9-11-50 (a), and “ ‘[a] ground not mentioned in a motion for directed verdict cannot thereafter be raised on appeal. [Cits.]’ [Cits.]” Grabowski v. Radiology Assoc., 181 Ga. App. 298, 299 (2) (352 SE2d 185) (1986).

In any event, there was a plethora of evidence adduced showing that the systems inventory was not usable and saleable in the ordinary course of the business. The former chief operating officer of the company, who later was given primary responsibility for the company’s warehouse, delivery, and installation operation, and who eventually became the company president, testified that the systems inventory was not saleable in the ordinary course of the business. He had overseen the extra efforts to dispose of this inventory for two years after Aaron Rents’ acquisition of the company, and had ultimately sold it for a total of only $200,000, which was much less than the value assigned at the time of the sale of the company. Also, a systems furniture expert testified that such leftover components and parts generally were regarded as “scrap” in the furniture industry, and that there was little prospect of marketing such inventory. This evidence was sufficient to establish a jury question on this issue.

3. On appeal, the sellers emphasize that the sale of the company involved a sale of stock, not a sale of assets, and that the proper measure of damages would be the difference between the price paid for the stock and its actual value. Because the evidence adduced at trial concerned only the value of the systems inventory in question, the sellers contend that Aaron Rents had totally failed to prove its damages, and that the trial court should have directed verdict for that reason.

However, as with the issue of proof of the breach of the saleability warranty, the sellers did not raise this evidentiary ground when they moved for directed verdict and for judgment n.o.v. This issue, in fact, was not raised until the sellers hired a different law firm to prosecute this appeal. Accordingly, this contention may not be considered on appeal. Grabowski v. Radiology Assoc., supra.

The sellers alternatively contend that, even measuring the damages by the difference in value of the systems inventory as represented and its actual value, Aaron Rents’ evidence of its damages was speculative and could not support any verdict. We disagree.

“[T]he ability to ‘estimate damages to a reasonable certainty’ is all that is required . . . and mere difficulty in fixing the exact amount will not be an obstacle to the award. [Cit.]” (Emphasis omitted.) Pottinger v. Cross, 170 Ga. App. 647, 648 (317 SE2d 850) (1984). “ ‘The rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. . . .’ [Cit.]” Kuhlke Constr. Co. v. Mobley, Inc., 159 Ga. App. 777, 780 (3) (285 SE2d 236) (1981).

In this case, the evidence showed that the systems inventory was assigned a book value of $1,117,446.95 as of May 31, 1987. Charles Harper, who was the company’s chief operating officer at the time, did not recall any of the inventory being sold or otherwise disposed of between May 1987 and October 1, 1987, when Aaron Rents acquired the company. At the time of an inventory count and valuation in October 1987, the current cost of the inventory was assessed at $1,352,000. Harper also testified about certain items, totalling $127,848, having been counted twice on the company’s books. After two years of concentrated efforts to market the systems inventory after its acquisition of the company, Aaron Rents eventually was able to sell the inventory for a total of only $200,000. Further, the systems furniture expert indicated that such inventory would have a value of approximately five percent of the dealer cost. This evidence provided the jury with a sufficient basis from which to calculate the damages incurred by Aaron Rents.

4. OCGA § 13-6-11 provides that a plaintiff may recover attorney fees if the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. A jury may award attorney fees as expenses of litigation where the defendant has acted in bad faith in the transaction out of which the cause of action arose. B-X Corp. v. Jeter, 210 Ga. 250 (3) (78 SE2d 790) (1953). Such an award for attorney fees under OCGA § 13-6-11 will be upheld if there is any evidence to support it. Cade v. Roberts, 175 Ga. App. 800 (334 SE2d 379) (1985).

The sellers contend that there is not even a “hint” of evidence to support the jury’s award of attorney fees for Aaron Rents under this Code section. In response, Aaron Rents maintains that the circumstances surrounding the sale of the business provided sufficient support of the award, and we agree.

Specifically, when appellant Shepherd showed the chairman of Aaron Rents around the business premises during the negotiation for the sale of the company, he represented that the systems inventory was necessary to the operation of the business, but he did not disclose any of the problems the company had encountered in trying to dispose of that inventory. At trial, however, Shepherd admitted the extreme difficulty in selling the accumulated systems inventory unless a computer tracking system could somehow be devised. The total evidence regarding the systems inventory thus could support a finding that Shepherd must have known that the systems inventory was unsaleable in the ordinary course of the business, and thus was by no means necessary for the operation of the business. Further, there was testimony that some of the components and parts included in the systems inventory were leftover materials paid for by the company’s customers. As such, some portion of the inventory was not even the property of the company, and thus should not have been the subject of any representation in the first place. From the above evidence, the jury was authorized to find that Shepherd was dishonest, and thus had acted in bad faith, in his dealings with Aaron Rents in negotiating the sale of the company.

Decided March 9, 1993 —

Reconsideration denied March 24, 1993

Rogers & Hardin, C. B. Rogers, John J. Almond, Alston & Bird, G. Conley Ingram, Robert D. McCallum, Jr., James C. Grant, for appellants.

Long, Aldridge & Norman, James J. Thomas II, Paula R. Miller, for appellee.

5. On appeal, this court must construe the evidence most strongly to uphold the jury verdict, and in reviewing the denial of a motion for directed verdict and judgment n.o.v., the verdict will be upheld if there is any evidence to support it. Mattox v. MARTA, 200 Ga. App. 697 (1) (409 SE2d 267) (1991). Further, where the amount of the verdict is within the range of the evidence, it will not be disturbed on appeal. C & S Nat. Bank v. Haskins, 254 Ga. 131 (2) (327 SE2d 192) (1985). In the instant case, as discussed above, there is some evidence to support the jury’s verdict, and the amount of that verdict was within the range of the testimony and other evidence adduced at trial regarding the value of the systems inventory and the attorney fees. Accordingly, the trial court did not err in denying the sellers’ motion for directed verdict, motion for judgment n.o.v., and alternative motion for new trial.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


author: Carley, Presiding Judge.

text:
    A92A2044.
    NILAN’S ALLEY, INC. v. GINSBURG.
    (430 SE2d 368)
   Carley, Presiding Judge.

After terminating his employment as a salesman for appellant-defendant, appellee-plaintiff began work for a competitor. Thereafter, appellee brought suit to recover unpaid commissions which he had allegedly earned during his employment with appellant. Appellant answered and also counterclaimed, alleging appellee’s tortious interference with business relations and his breach of fiduciary duties. After discovery, appellee moved for summary judgment on appellant’s counterclaims. The trial court granted appellee’s motion and appellant appeals.

1. Appellant is the manufacturer’s representative for certain products and, during appellee’s employment, he was appellant’s agent for soliciting offers to purchase those products. Accordingly, the evidence would authorize a finding that appellee owed fiduciary obligations to appellant. See OCGA § 23-2-58; Lane Co. v. Taylor, 174 Ga. App. 356, 362 (5) (330 SE2d 112) (1985). The issue for resolution is whether a genuine issue of material fact remains as to appellee’s breach of his fiduciary duty.

“[A]n employee breaches no fiduciary duty to the employer simply by making plans to enter a competing business while he is still employed. ‘Even before the termination of his agency, he is entitled to make arrangements to compete . . . and upon termination of employment immediately compete.’ [Cit.] . . . ‘[H]e is not, however, entitled to solicit customers for (a) rival business before the end of his employment nor can he properly do other similar acts in direct competition with the employer’s business.’ [Cit.]” E. D. Lacey Mills v. Keith, 183 Ga. App. 357, 362-363 (9) (359 SE2d 148) (1987).

Appellant urges that its customers were solicited by appellee during the time that he was employed as its salesman. The evidence shows that, while employed by appellant, appellee did have conversations with appellant’s customers concerning his future employment. However, these conversations were brief, non-specific and strictly hypothetical. He simply inquired of appellant’s customers whether, in the event he left appellant’s employment in the future, they would consider continuing to place their orders through him. The evidence is undisputed that appellee did not profit at appellant’s expense during his actual employment with appellant. Compare Vinson v. E. W. Buschman Co., 172 Ga. App. 306 (323 SE2d 204) (1984). No agreement was reached with any of appellant’s customers prior to appellee’s termination of his employment. It was only after appellee had already left his employment with, appellant that, upon being informed of appellee’s actual change of employers, one customer decided to switch from appellant and place its orders with appellee’s new employer. No existing contract was breached when appellant lost this customer. This evidence would authorize only a finding that appellee’s conversations were in mere preparation for post-employment competition and that appellee was not thereby in direct competition so as to breach the duties of good faith and loyalty that he then owed to appellant. Nationwide Advertising Svc. v. Thompson Recruitment Advertising, 183 Ga. App. 678, 683-684 (4) (359 SE2d 737) (1987). It follows, therefore, that the trial court correctly granted appellee summary judgment as to appellant’s counterclaim for breach of fiduciary duty. Kem Mfg. Corp. v. Sant, 182 Ga. App. 135, 142 (7a) (355 SE2d 437) (1987); Millwood Mouldings v. Wilson, 176 Ga. App. 845, 846 (2) (338 SE2d 60) (1985).

E. D. Lacey Mills v. Keith, supra at 363 (9), is not authority for a contrary holding. The Keith decision is factually distinguishable. There, the evidence showed that, while ostensibly employed by their former employer, the former employees had conducted numerous meetings, made many telephone calls and were frequently absent in pursuit of their plans to compete. On this evidence, it was held that a jury should determine whether the former employees had “fulfilled their duties to [their former employer] as full-time paid employees during the months they made plans for their new company.” (Emphasis supplied.) E. D. Lacey Mills v. Keith, supra at 363 (9). In the instant case, there is evidence only of appellee’s brief, non-specific and strictly hypothetical conversations regarding the prospect, rather than the certainty, of his future employment with appellant’s competitor.

Likewise, Lane Co. v. Taylor, supra at 361-362 (5), is not authority for a contrary holding in the instant case. Not only is that decision a physical precedent only, it is also factually distinguishable. The holding in Lane Co. was predicated upon the restrictive covenants contained in the former employee’s contract of employment. Here, there are no restrictive covenants which are enforceable as against appellee.

2. “ [A] cause of action for [intentional] interference with business relations does not require proof of a valid and enforceable contract.” Integrated Micro Systems v. NEC Home Electronics (USA), 174 Ga. App. 197, 200 (3) (329 SE2d 554) (1985). In order to recover under this theory, however, appellant would have to show that appellee “ ‘ “(1) acted improperly and without privilege. . . .” (Cits.)’ [Cit.]” Nationwide Advertising Svc. v. Thompson Recruitment Advertising, supra at 679-680 (1).

The only acts which are alleged to be improper and unprivileged are appellee’s conversations with appellant’s customers before termination of his employment as appellant’s salesman. Appellant urges that, by engaging in these conversations, appellee breached his fiduciary duty and thereby committed improper and unprivileged acts. As discussed in Division 1, however, these conversations were not in breach of appellee’s fiduciary duty. Accordingly, the trial court correctly granted appellee summary judgment as to appellant’s counterclaim for intentional interference with contractual relations. See American Bldgs. Co. v. Pascoe Bldg. Systems, 260 Ga. 346, 349 (2) (392 SE2d 860) (1990). Compare E. D. Lacey Mills v. Keith, supra at 363-364 (10); Lane Co. v. Taylor, supra at 360 (3).

Decided March 10, 1993 —

Reconsideration denied March 24, 1993

Gort, Hassett, Cohen & Beitchman, Robert W. Hassett, for appellant.

Donald A. Weissman, Goodman & Bush, F. Clay Bush, Norman L. Smith, for appellee.

Judgment affirmed.

Pope, C. J., and Johnson, J., concur.


author: Cooper, Judge. Blackburn, Judge,

text:
    A92A2105.
    YOUNG et al. v. RIDER.
    (430 SE2d 117)
   Cooper, Judge.

Appellants, a couple and their two minor children, sued appellee in late 1987 for personal injuries and property damage allegedly resulting from appellee’s negligent and illegal application of the termiticide chlordane at their home in 1986. After discovery, appellants were unable to present any evidence of personal injuries caused by exposure to chlordane; and in June 1990, several days before the case was set to go to trial, they voluntarily dismissed their case pursuant to OCGA § 9-11-41 (a). Within the six months allowed under OCGA § 9-2-61 (a), appellants refiled their complaint, making substantially the same claims and allegations. In early 1992, as the time for trial approached, appellants’ expert told them he was not going to be able to causally link appellants’ physical problems to chlordane exposure in the absence of test results showing unacceptable levels of chlordane in and around the house. Because they did not have this, appellants amended their complaint to dismiss the personal injury claims and drop their minor children (who had only the personal injury claims) from the action. About a month later, appellants were able to get test results from a second expert showing unacceptable levels of chlordane at the house which would allow the first expert to make the necessary causal link. Appellants therefore amended their complaint once again to reassert the personal injury claims, including the children’s claims. Appellee moved to dismiss the children and the personal injury claims reasserted in the second amended complaint. The trial court granted this motion, and we granted appellant’s application for interlocutory appeal to review the trial court’s rulings that the minor children appellants are no longer parties to this action and that the personal injury claims of the adult appellants are barred.

1. Appellants first argue that the minor appellants are still parties to the action because there was no court order dropping them as plaintiffs when appellants first amended their complaint. A court order is required to add or drop parties under OCGA § 9-11-21, and even the liberal amendment provisions of OCGA § 9-11-15 are limited by this requirement. See Aircraft Radio Systems v. Von Schlegell, 168 Ga. App. 109 (2) (308 SE2d 211) (1983). Nonetheless, we reject appellants’ first argument because we agree with the trial court’s conclusion that OCGA § 9-11-21 does not govern the situation presented here. The purpose of that statute is to provide procedural relief for plaintiffs who sue too many or too few parties, so that “[m]isjoinder of parties is not ground for dismissal of an action.” OCGA § 9-11-21; see also Lamas Co. v. Baldwin, 120 Ga. App. 149 (1) (169 SE2d 638) (1969). The procedure by which party plaintiffs in a multi-plaintiff action drop out of the action by dismissing all their claims is instead provided by OCGA § 9-11-41 (a), which states that: “an action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case.” (Emphasis supplied.) The written notice need not be called a “notice of dismissal” to be one, as long as it is “sufficiently definite so as to inform the court of [the plaintiff’s] intention to voluntarily dismiss” the party’s action. English v. Atlanta Transit System, 134 Ga. App. 621, 622 (215 SE2d 304) (1975). Moreover, once an action has been dismissed pursuant to OCGA § 9-11-41 (a), it can be recommenced but not reinstated. Matthews v. Riviera Equip., 152 Ga. App. 870 (1) (264 SE2d 318) (1980).

In the first amended pleading in this case, the minor appellants dropped out of the action, thereby dismissing the only claims they had. We conclude that this constituted a voluntary dismissal of their actions which was effective without court order pursuant to OCGA § 9-11-41 (a), rather than a dropping of parties requiring a court order pursuant to OCGA § 9-11-21. Accordingly, the trial court did not err in dismissing the minor appellants’ attempt to reinstate their actions.

2. In their second enumeration of error, appellants contend that the trial court erred in applying OCGA §§ 9-11-41 (a) and 9-2-61 (a) to conclude that the adult appellants’ reassertion of their personal injury claims in their second amended complaint was barred by the statute of limitation. OCGA § 9-2-61 (a) provides that a “case” dismissed pursuant to OCGA § 9-11-41 after the statute of limitation has run may be renewed only once. Appellee asserts that appellants effectively dismissed their already renewed personal injury claims with their first amended complaint, and thus could not again renew them. However, the language of OCGA §§ 9-11-41 (a) and 9-2-61 (a) clearly speaks to the dismissal and renewal of an “action” or a “case,” not a claim within an action where other claims have also been asserted by the same plaintiffs. See also American Legion v. Miller, 183 Ga. 754 (1) (189 SE 837) (1937) (plaintiff’s voluntary dismissal terminates case so far as that plaintiff’s prayers are concerned). Where less than all of a plaintiff’s claims are added or dropped, the additions and deletions are not dismissals and renewals governed by OCGA §§ 9-11-41 (a) and 9-2-61 (a), but simply amendments governed by the liberal amendment rules of OCGA § 9-11-15 (a) and (c). The trial court therefore erred in dismissing the adult appellants’ reasserted personal injury claims on the ground that they had been dismissed and could not be renewed again.

Decided March 12, 1993 —

Reconsideration denied March 24, 1993.

Thomas, Kennedy, Sampson & Patterson, Thomas G. Sampson, Kimberly M. Carlisle, Walker & Associates, Betty B. Walker, for appellants.

Duncan & Mangiafico, George E. Duncan, Jr., Leslie P. Becknell, for appellee.

Judgment affirmed in part and reversed in part.

McMurray, P. J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I concur with the majority opinion, but I wish to emphasize that nothing in this decision bars the appellants’ minor children from commencing new actions regarding their personal injury claims against the appellee. Although the appellants’ personal injury claims would have been barred by the applicable statute of limitation had we not concluded that those claims could be added under OCGA § 9-11-15, the limitation period for the claims of the minor children will not begin to run until their disability is removed by reaching the age of majority. OCGA § 9-3-90. Inasmuch as the personal injury claims of the appellants’ minor children may be recommenced, the interests of judiciál economy would be served by allowing addition of the children to the instant action. However, the requisite consent for such was not obtained pursuant to OCGA § 9-11-21, and the trial court properly disallowed their joinder.


text:
    A92A2111.
    WRIGHT et al. v. TIDMORE et al.
    (430 SE2d 72)
   Blackburn, Judge.

In 1980 appellant Thomas H. Wright, Jr. on behalf of his professional corporations (Thomas H. Wright, Jr., Architect, P.C. and Wright and Mitchell, Architects, P.C.) entered into a contract with appellees Thomas L. Tidmore and Marian A. Tidmore to design and draft plans for the construction of a 24-unit apartment complex in Helen, Georgia. The Tidmores apprised Wright that they wanted the apartments to be built in compliance with any codes or regulations for condominiums so they could be sold as condominium units at any time in the future. The document signed by the parties was the standard agreement form issued by the American Institute of Architects.

Article 8.1 of the contract provided that the drawings and specifications of the buildings were to remain the property of the architect whether or not the project for which they were made was executed; but that the owner “shall be permitted to retain copies, including reproducible copies, of Drawings and Specifications for information and reference in connection with the Owner’s use and occupancy of the Project. The Drawings and Specifications shall not be used by the Owner on other projects, for additions to this Project or for completion of this Project by others provided the Architect is not in default under this Agreement, except by agreement in writing and with appropriate compensation to the Architect.” Article 8.2 further provided that “[submission or distribution to meet official regulatory requirements or for other purposes in connection with the Project is not to be construed as publication in derogation of the Architect’s rights.”

The flat fee due under the contract for the drawings and specifications was paid in full and three of the four buildings in the plans (18 units) were constructed. In 1984 the Tidmores retained the appellants to make some revisions in the floor plans, and this fee was also paid.

In 1990 the Tidmores took legal steps to convert the apartments into condominiums. No structural changes of any kind were made in the buildings, but documents were required by OCGA § 44-3-83 (b) (1) to be filed describing the layout of the units and certified by an architect. Those documents included, inter alia, plans prepared, signed, and sealed by a registered architect regarding every structure, and a certification by the architect that he has viewed the property and that the structures were built in accordance with the plans. Without obtaining the consent of the appellants, the Tidmores hired appellee David Hewell as an architect to prepare the plats and plans in accordance with OCGA § 44-3-83 for recording.

Hewell inspected the property and utilized the Tidmores’ copies of the appellants’ plans for this purpose. In doing so, he changed the word “apartments” to “condominiums,” redated the documents to conform to the date of the certification, identified the buildings by number instead of letter and added a designation for each individual condominium unit, and combined two sets of plans into one. He removed Wright’s seal from the documents, but retained Wright’s name and designated him as the design architect on the documents. In compliance with OCGA § 44-3-83 (b), Hewell placed his own seal on the documents beside his certification that the buildings were constructed in accordance with the appellants’ plans, and that there were no significant changes between the project as built and the design plans. Hewell did not keep the blueprints or use them for any other purpose.

The appellants brought the instant action against the Tidmores individually and as Tidmore Properties, Hewell, and the incorporated condominium association. They contended that the filing of the altered plans with the clerk of the superior court as a part of the condominium declaration was a publication in violation of the contract. They further alleged that the plans were published a second time when they were included in sales brochures and distributed to the general public as prospective condominium purchasers. There was no allegation of any additional construction work, additions to the original project or the building of any structures based on these plans. The appellants sought to recover nominal and compensatory damages, and punitive damages in an amount not less than $5,000,000 plus attorney fees and expenses of litigation for the wilful, malicious and intentional misappropriation and conversion of their intellectual property and proprietary rights by the appellees to their own use and purposes outside the scope, permission and provisions of the agreement. This appeal is from the grant of summary judgment to the appellees based upon these undisputed facts.

The appellants claim that the appellees misappropriated their intellectual property consisting of the plans for the apartment complex built by the Tidmores. As a legal basis for their cause of action, the appellants refer to Cartin v. Boles, 155 Ga. App. 248 (270 SE2d 799) (1980), involving an author’s common-law property right in an unpublished manuscript and redress against anyone who endeavors to profit by its publication through plagiarism, and Wilson v. Barton & Ludwig, Inc., 163 Ga. App. 721 (296 SE2d 74) (1982), involving the wrongful appropriation of an abstract idea. In Monumental Properties v. Frontier Disposal, 159 Ga. App. 35, 37 (282 SE2d 660) (1981), this court found no authority for a “common law copyright” in this state, but noted that “[o]ur courts have long recognized that an author or inventor has a property right in the product of his mental labors. . . .” Regardless of how the appellants’ cause of action may be fashioned, we find that the trial court properly granted summary judgment for all the appellees because there was no misappropriation of the appellants’ plans.

It was uncontroverted that at the inception of the project in 1980, the appellants were aware of the Tidmores’ intention of converting the apartment complex into a condominium at some time in the future. Under the express terms of the contract between the appellants and the Tidmores, the Tidmores were authorized to retain copies of the architectural plans for “information and reference” in connection with their use of the project, and the submission of those plans to meet “official regulatory requirements or for other purposes in connection with the project” did not violate the appellants’ rights with respect to the plans.

In connection with the eventual conversion of the apartment complex into a condominium complex, OCGA § 44-3-83 (b) required submission of the plans of the structures prepared, signed, and sealed by a registered architect, and a certification by the architect that he had viewed the property and that the structures were constructed in accordance with the plans. This subsequent use of the plans by the Tidmores was authorized by the terms of their contract with the appellants, and may not be regarded as a misappropriation. Similarly, inasmuch as OCGA § 44-3-111 (b) requires that any seller of a condominium furnish prospective buyers with various documents, including a copy of the floor plan of the unit and a copy of the condominium declaration, any use of the plans for that purpose also was authorized under the contract, and did not constitute a misappropriation.

With regard to Hewell’s use of the appellants’ architectural plans, it is clear that his adaptation of the plans in order to satisfy the requirements of OCGA § 44-3-83 (b) were minimal, and in no way plagiarized the appellants’ mental labors. Specifically, Hewell redated the plans only so that they conformed to the date of his certification that he had viewed the property and that the structures were built according to the plans. He identified the buildings by number instead of letter, and added a designation for each condominium unit. Because the apartment complex had been built in two phases, he combined two sets of plans into one for convenience. These changes were made solely for the purpose of complying with OCGA § 44-3-83 (b).

Hewell did remove Wright’s seal from the documents, but he retained Wright’s name on all the plans as the design architect, so that Wright would be credited with the design of the project. Hewell’s own seal was used only in conjunction with his certification regarding the conformity of the building construction to the plans.

In summary, Hewell did not claim the plans to be his own, but instead made it clear that Wright was the design architect. Hewell did not sell the plans, and he did not build a project from the appellants’ plans. His adaptation of the plans was consistent with the Tidmores’ use of the plans authorized under the contract between the Tidmores and the appellants, and was necessary for compliance with OCGA § 44-3-83 (b).

Decided March 9, 1993 —

Reconsideration denied March 24, 1993.

Federal, Goetz & Cronkright, Charles M. Goetz, Jr., Julie A. Goodwin, for appellants.

Bauer, Deitch & Raines, Gilbert H. Deitch, George R. Ference, for appellees.

“To prevail at summary judgment, under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-22-56 (c). . . .If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In the instant case, the appellees negated the existence of any factual issue regarding the most essential element of the appellants’ claim, viz., misappropriation. For that reason, the trial court properly granted summary judgment for all the appellees.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A2125.
    WILLIAMS v. THE STATE.
    (430 SE2d 42)
   Birdsong, Presiding Judge.

Margie Carter Williams appeals her convictions for driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1) and carrying a concealed weapon, brass knuckles, in violation of OCGA § 16-11-126.

The transcript shows that after receiving a report that a woman was attempting to flag down cars on a county road, a city police officer visited the scene and found a car in the ditch with Williams slumped over the steering wheel. The officer testified he helped her out of the car and asked her to sit with him on the front seat of his patrol car, but did not place her under arrest. As far as he was concerned, she would have been free to leave if she had attempted to do so. Shortly thereafter, a deputy sheriff responded to the call and assumed responsibility for the investigation. Because it was raining, he asked Williams to sit in the front of his patrol car with him. While in the patrol car, the deputy asked Williams about the accident, and upon smelling a strong odor of alcohol on her breath, asked her if she had consumed any alcohol. When she said she had drunk a six-pack of beer, the deputy placed her under arrest, advised her of her implied consent rights, and also warned her of her Miranda rights. She was then handcuffed, placed in the rear seat of the patrol car, and transported to the sheriff’s office. At the sheriff’s office, she was given a blood-alcohol breath test on an Intoximeter 3000, and she tested .24. While at the sheriff’s office, a set of brass knuckles was found in Williams’ purse.

Williams contends the trial court abused its discretion by not conducting hearings on her motions out of the presence of the jury, erred by admitting in evidence her out-of-court statements, erred by refusing to suppress the brass knuckles and admitting the results of her blood-alcohol test, and also erred by failing to grant a mistrial. Held:

1. Williams’ first enumeration of error contends the trial court erred and abused its discretion by denying her request for a hearing out of the presence of the jury on her motion to suppress and motion in limine. Review of the transcript shows that Williams sought the hearing to consider her motion to suppress and motion in limine concerning the results of her blood-alcohol test.

Williams was not entitled to a pretrial hearing on her motion to suppress the results of the blood-alcohol test. The results of blood-alcohol tests are challenged through motions in limine (State v. Johnston, 249 Ga. 413 (291 SE2d 543)), and trial courts have the right to refuse to rule on the admissibility of such evidence prior to trial. Stanley v. State, 195 Ga. App. 706, 707 (394 SE2d 785); Smith v. State, 195 Ga. App. 669 (394 SE2d 558); Martin v. State, 195 Ga. App. 548, 549 (394 SE2d 551). Additionally, as no written motion to suppress the brass knuckles was filed, Williams is not entitled to rely upon OCGA § 17-5-30 (b) for the proposition that she was entitled to a pretrial hearing. Therefore, this enumeration of error is without merit.

Williams’ argument also raises issues concerning the failure to hold a Jackson-Denno hearing and certain remarks by the trial judge allegedly in violation of OCGA § 17-8-57. These issues, however, were not asserted in an enumeration of error, and are not properly before us. Enumerations of error cannot be enlarged to include other issues not asserted (Hurston v. Ga. Farm Bureau &c. Co., 148 Ga. App. 324, 326 (250 SE2d 886)), and appellate review cannot be enlarged or transformed through switching, shifting, or mending one’s hold. Ailion v. Wade, 190 Ga. App. 151, 155 (378 SE2d 507); Redwing Carri ers v. Knight, 143 Ga. App. 668, 674 (239 SE2d 686). Therefore, these additional issues cannot be considered. Sanders v. Hughes, 183 Ga. App. 601, 604 (359 SE2d 396).

In addition, Williams has not complied with Court of Appeals Rule 15 (a) (1) and (3) requiring statements setting forth the method by which the enumerations of error were preserved and concise statements of the applicable standard of review for each issue presented. Although we have reviewed the likely place in the record for Williams’ objections, it is not our responsibility to cull the record on her behalf. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (389 SE2d 251).

2. Williams’ second enumeration contends the trial court erred by admitting her statements to the deputy because she contends that at the time of these statements she was in custody and had not been warned -of her Miranda rights. She also contends these statements were inadmissible because they were not provided to her prior to trial.

Review of the record shows the trial court found that at the time Williams made these statements she was not in custody. This finding is supported by uncontradicted testimony of the police officer and deputy sheriff that Williams was not taken into custody until after she made these statements. See Hughes v. State, 259 Ga. 227 (378 SE2d 853). Therefore, since the Miranda warning requirements are applicable only to statements made while in police custody and since OCGA § 17-7-210 also is only applicable to custodial statements (Stanley v. State, supra at 708), the trial court did not err by admitting these statements. See Brown v. State 259 Ga. 453, 454 (383 SE2d 882).

3. Williams alleges that the trial court erred by refusing to suppress brass knuckles that were found in her purse because they were the result of an illegal warrantless search. The record shows, however, that Williams’ motion did not satisfy the requirements of OCGA § 17-5-30 because she did not file a written motion to suppress stating facts showing that the search and seizure were unlawful. Therefore, since Williams did not comply with OCGA § 17-5-30, the trial court did not err by refusing to grant her oral motion to suppress. See Boatright v. State, 192 Ga. App. 112, 117-118 (385 SE2d 298). Moreover, the record fully supports the trial court’s conclusion that the brass knuckles were seized properly during an inventory of Williams’ purse at the police station. Martin v. State, 201 Ga. App. 716, 717-718 (411 SE2d 910). Although the sheriff’s department apparently does not have a policy concerning inventories of personal property in these circumstances, that is not determinative. Id. The deputy testified that because Williams’ car was being impounded, his purposes were to inventory and prepare a record of the contents of the purse as well as to check for contraband. Additionally, since the deputy who seized the brass knuckles testified and identified the brass knuckles as the one seized, Williams’ contention that there was no proper chain of custody is without merit. Moreover, a chain of custody is not required when the evidence sought to be introduced is a distinct physical object recognizable by observation. Green v. State, 242 Ga. 261, 267 (249 SE2d 1); Brown v. State, 195 Ga. App. 389 (393 SE2d 514). Accordingly, there was no error.

Decided March 3, 1993 —

Reconsideration denied March 24, 1993

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, Patricia A. Buttaro, for appellant.

W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

4. Williams contends the trial court erred by admitting the results of her blood-alcohol test because the prosecution failed to lay a proper foundation for admission of the test. The transcript shows that after the police officer testified, without objection, that the results of the test showed Williams had a .24 blood-alcohol level, Williams objected to the admission of the written record of the test score because the State had not established a chain of custody and because no foundation had been established that the Intoximeter 3000 was operating properly to exclude other blood and breath gases.

The record does not support Williams’ arguments. The deputy sheriff and the police officer both testified that each advised Williams of her implied consent rights, and the police officer specifically testified that he advised her of her right to an independent blood test and that he had properly pre-tested the Intoximeter 3000. Moreover, Williams’ arguments concerning the operation of the Intoximeter 3000 were rejected by our Supreme Court in Lattarulo v. State, 261 Ga. 124, 126-127 (401 SE2d 516).

5. Williams’ final enumeration contends the trial court erred by denying her motion for a mistrial after the prosecution allegedly placed her character in issue improperly. The factual basis for this enumeration occurred after the jury had returned its verdict convicting Williams of the two offenses. Therefore, Williams could not have been prejudiced, and any error resulting from this procedure was clearly harmless beyond a reasonable doubt. Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869); Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38). Accordingly, this enumeration of error is also without merit.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A2317.
    BRITT et al. v. THE STATE.
    (430 SE2d 28)
   Cooper, Judge.

Appellants were indicted for the offenses of possession of marijuana with intent to distribute and possession of marijuana. We granted appellants’ interlocutory appeal from the denial of their motion to suppress contraband found in a warrantless search of their vehicle.

At the hearing on appellants’ motion to suppress, Special Agent John Cagle of the Georgia Bureau of Investigation testified that he was contacted by a confidential informant on October 16, 1991. Over the past five years, the confidential informant had provided Agent Cagle with information regarding drug activities which had led to five search warrants and seven arrests. The informant told Agent Cagle that two individuals, Britt and a man identified only as “David,” were in possession of approximately five pounds of marijuana and were attempting to sell it. The informant related that the men were staying at a motel in the Atlanta area and he could possibly arrange a sale between the agent and the two men. Agent Cagle told the informant to try to arrange the sale. On October 17, 1991, Agent Cagle spoke to the informant and told him to contact the two individuals and ask them to bring five pounds of marijuana to the Huddle House restaurant on U. S. Highway 29 in Gainesville, Georgia. Later that morning the informant contacted Agent Cagle and told him that the sale had been arranged and that two white males driving a maroon and white Dodge pickup truck which possibly had Texas license plates would be at the Huddle House at 11:30 a.m. Shortly before 11:30, Agent Cagle and several other agents began surveillance in the parking lot of the Huddle House. At approximately 11:35, two white males, subsequently identified as appellants, entered the Huddle House parking lot in a maroon and white pickup truck with Texas license plates and drove into a parking space. The agents approached the pickup truck and the truck sped through the parking lot and stopped before an embankment. Appellants were taken out of the truck and read their rights. A search of the truck revealed a zipper bag containing five bags of marijuana.

Appellants argue that the agents lacked probable cause to search the pickup truck. We disagree. As the informant had previously supplied Agent Cagle with information which led to arrests and the seizure of contraband, the information was reliable. McKinney v. State, 184 Ga. App. 607 (1) (362 SE2d 65) (1987). The fact that the informant did not disclose the source of his information does not alter our finding of reliability. “The sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the ‘totality of the circumstances’ surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983). ‘(A) deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.’ [Cit.] Here, any deficiency in the basis of the informant’s knowledge was adequately compensated by the informant’s previous record of reliability. Moreover, the details of the tip were corroborated by the personal observation of the investigating officers. When coupled with corroboration by the personal observation of a police officer, a reliable informant’s tip is sufficient to establish probable cause for a warrant-less search. [Cit.]” McKinney, supra at 608-609. Agent Cagle observed a truck matching the description given by his reliable informant park at the exact location where the drug transaction was to take place. The occupants of the truck also matched the description given by the informant. In addition, the truck attempted to drive away when approached by the officers. Considering the totality of the circumstances, we conclude that the agents had probable cause for the arrest and subsequent warrantless search of the truck. Accordingly, we find no error in the trial court’s denial of appellant’s motion to suppress.

Decided February 24, 1993 —

Reconsideration denied March 24, 1993

Whitmer & Law, George H. Law III, for appellants.

C. Andrew Fuller, District Attorney, William M. Brownell, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.