author: Smith, Judge.

text:
    A97A1273.
    BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. RIDDLE.
    (493 S.E.2d 208)
   Smith, Judge.

Stanley Riddle, individually and as executor of the estate of his mother, Betty Riddle Jensen, brought suit against the Board of Regents of the University System of Georgia, contending that employees of the Board’s Medical College of Georgia hospital were negligent in undermedicating Jensen’s son, Mark Newsome, and in releasing him from the hospital on a 24-hour pass. Newsome, a chronic paranoid schizophrenic who had exhibited violent propensities, had been admitted to the hospital to correct a low blood count due to medication for the schizophrenia. He was released on December 24,1993, to visit his mother for the Christmas holiday. He accompanied his mother to her home, where he assaulted and murdered her. The Board of Regents brings this appeal from the trial court’s denial of its motion for judgment on the pleadings.

In its motion for judgment on the pleadings, the Board relied upon OCGA § 50-21-24 (7), enumerating assault and battery as an exception to state liability under the Georgia Tort Claims Act, OCGA § 50-21-20. It also asserted that it had no liability in this case because the actions of the hospital personnel in releasing Newsome on the holiday pass were discretionary. We granted the Board’s application for interlocutory appeal to consider whether the trial court erred in denying the Board’s motion for judgment on the pleadings. We conclude that this case is controlled in the Board’s favor by the decisions in Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70 (456 SE2d 642) (1995) and Christensen v. State of Ga., 219 Ga. App. 10, 13 (6) (464 SE2d 14) (1995), and that those decisions make clear that the Board was entitled to judgment as a matter of law. We therefore reverse the trial court’s denial of the Board’s motion.

Both Hutchinson and Christensen presented similar tragic factual circumstances and arguments. In Hutchinson, a juvenile who had been adjudicated delinquent was placed in Hutchinson’s home as an alternative to institutionalization. The juvenile obtained Hutchinson’s loaded gun and shot her. Hutchinson brought suit against DHR, alleging negligence on the part of its employees in placing the juvenile in her home. In Christensen, several women brought suit against various state agencies, alleging they were raped in separate attacks by a convicted rapist who had been paroled. The victims alleged negligence of the various agencies in failing to afford the rapist necessary treatment, in paroling him, and in negligently supervising him after parole.

Although the State has waived its sovereign immunity for negligent acts, the waiver is “only to the extent and in the manner provided” by the Act. OCGA § 50-21-23 (b). The State has not waived its immunity for “losses resulting from” assault or battery. OCGA § 50-21-24 (7). In Hutchinson, the appellee argued that this exception applied only when the person committing the assault or battery was a state agent. This Court rejected that argument, holding that the exception covers all “losses” that result from an assault or battery, regardless of the identity of the actor committing the assault or battery. Id. at 71. We held that “[t]he focus of the exceptions to liability in OCGA § 50-21-24 (7) is not on the government action taken, but upon the act that produces the loss.” Id. at 71-72. In Hutchinson, the act that produced the loss was an assault and battery.

Christensen followed the holding in Hutchinson in rejecting arguments that the assault and battery exception did not apply when a third party, and not a state employee, commits those torts. Christensen, supra at 12-13. We follow it here as well.

Decided October 23, 1997

Thurbert E. Baker, Attorney General, George P. Shingler, Deputy Attorney General, C. Latain Kell, Senior Assistant Attorney General, Patricia Guilday, Assistant Attorney General, for appellant.

Glover & Blount, Percy J. Blount, Nancy S. Gentry, for appellee.

Cathey & Strain, Dennis T. Cathey, James E. Staples, Jr., amici curiae.

We reject Riddle’s attempt to distinguish this case from Hutchinson and Christensen on its facts based upon OCGA § 37-3-4, which provides that £‘[a]ny physician, psychologist, ... or any hospital official, agent, or other person employed by a private hospital or at a facility operated by the state, . . . who acts in good faith in compliance with the admission and discharge provisions of this chapter shall be immune from civil or criminal liability for . . . discharge of a patient from a facility.” Riddle argues that the hospital employees violated OCGA §§ 37-3-21 and 37-3-22 in releasing Newsome and therefore the question of their good faith, and thus their entitlement to immunity under OCGA § 37-3-4, is a jury issue.'

We do not agree. These statutes have no application here because they govern the discharge of voluntary psychiatric patients when their treatment is ended. See OCGA § 37-3-21. Newsome was not “discharged,” and his treatment was not terminated. He was simply released temporarily for a holiday.

Because Riddle’s loss and that of his mother resulted from New-some’s assault and battery upon his mother, the State has not waived its sovereign immunity. This case is controlled by the decisions in Hutchinson and Christensen, and the trial court erred in denying the Board’s motion for judgment on the pleadings.

Judgment reversed.

Beasley, J., concurs. McMurray, P. J., concurs in the judgment only.

       We reject as well the argument of amici curiae that Hutchinson was wrongly decided. Amici characterize other jurisdictions’ tort claims acts as “similar” or even “identical” to the Georgia Tort Claims Act. This is incorrect. The jurisdictions from which amici cite decisions do not have statutes that except liability for all “losses” resulting from assault or battery. This distinction was crucial to the decision in Hutchinson.

      Amici also argue that sovereign immunity is an affirmative defense that must be pled and proved by the State. This is also incorrect under Georgia law. See, e.g., Dept. of Human Resources v. Poss, 263 Ga. 347, 348 (1) (434 SE2d 488) (1993).


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A97A1744.
    JINKS v. THE STATE.
    (493 SE2d 214)
   Beasley, Judge.

Steve Jinks was indicted with co-defendants Jeff Hunt and Mark Rodgers on charges of manufacturing marijuana (OCGA § 16-13-30 (j)) and possessing more than one ounce of marijuana (OCGA § 16-13-30 (j)). The jury acquitted Rodgers, convicted Hunt on all charges, and convicted Jinks only of possession. Hunt’s conviction was affirmed. Hunt v. State, 222 Ga. App. 66 (473 SE2d 157) (1996). Although the evidence supports Jinks’ conviction, the court’s admission of evidence showing a prior charge against him requires a new trial.

1. The standard in Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979), applies to Jinks’ challenge to the sufficiency of the evidence, and in addition evidence is viewed with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict. Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986).

Hunt lived on his family’s Spalding County farm, and Rodgers rented a house there. On the morning of June 8, 1989, airborne law enforcement officers performing a “fly-over” spotted marijuana growing in four separate remote plots on the Hunt farm. Officers on the ground confiscated several hundred plants and found marijuana seedlings growing behind Hunt’s home. In the rental house, which contained some of Rodgers’ personal belongings, they discovered four large bales of marijuana. Duct tape securing two of those bales bore Jinks’ fingerprints.

Later that evening, GBI officers found Rodgers at a motel several counties away. Rodgers was leaning in the passenger window of a car bearing a Spalding County tag and driven by Jinks. The officers searched Jinks’ auto and found $2,300 cash and a signed check in the amount of $5,000 with no payee named. Although Jinks denied knowing Rodgers, Jinks’ former wife testified she had met Rodgers through Jinks. Telephone records from the Jinks’ residence revealed a fourteen-minute call to Rodgers’ number on June 4, two calls from Jinks’ to Rodgers early on the evening of June 8, and two calls from Rodgers’ number to Jinks’ that same night. These calls were made several hours before GBI officers spotted Jinks and Rodgers together at the motel. Although Jinks and his wife had divorced and Jinks no longer lived at that residence, his former wife testified Jinks could have made the calls to Rodgers because she was not home that night, Jinks had a house key, and he used that phone almost daily. She also testified Jinks and Hunt often fished together.

This evidence was sufficient for the jury to convict Jinks of possessing marijuana. First, Rodgers’ acquittal is no factor, as the inconsistent verdicts rule has been abolished. Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986). Second, contrary to Jinks’ argument, the fingerprints on the tape were not the only evidence linking him to the drugs. In addition, evidence showed Jinks had a relationship with Rodgers and Hunt before and after the crime and, shortly after the seizure, lied to GBI agents about his relationship with Rodgers. “The jury may infer criminal intent from conduct before, during, and after the commission of the crime. [Cit.]” Williams v. State, 262 Ga. 677 (1) (424 SE2d 624) (1993). Compare Barnett v. State, 153 Ga. App. 430 (1) (265 SE2d 348) (1980), in which the fingerprints were the sole evidence linking the defendant to the crime.

Furthermore, the jury could reject Jinks’ alternate hypothesis regarding the fingerprints as unreasonable. See Baxter v. State, 211 Ga. App. 650 (1) (440 SE2d 72) (1994). To explain the fingerprints, Jinks presented evidence showing he worked at a store where duct tape was sold, but he did not show the duct tape securing the bales was from that store. The State’s fingerprint expert testified prints do not hold up well on duct tape over time and are easily smudged and erased because the tape is not porous. Compare Jinks’ explanation with that in Barnett, supra, where the defendant explained in detail how he had likely left his prints at the scene.

2. Admission of Jinks’ fingerprint card violated OCGA §§ 24-2-2 and 24-9-20 (b). The GBI examiner had obtained the card from the Georgia Crime Information Center’s files and compared the prints on it to the prints on the duct tape. The card bears Jinks’ name and signature, lists “2-07-85” as the “Date Arrested,” and under the heading “Charge” states “Driving Under Influence” and “Too Fast For Conditions.” Although Jinks objected to the card as improper character evidence, the court admitted it without redacting any of the crime-identifying information.

Evidence of a defendant’s bad character is inadmissible as irrelevant and prejudicial unless the defendant chooses to raise his character as a defense. See generally Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988). Strawder v. State, 207 Ga. App. 365 (2) (427 SE2d 792) (1993), held it was reversible error on almost identical facts. Strawder’s trial court, over objection, allowed into evidence a fingerprint card showing the date of the defendant’s “arrest” and listing, by Code section, the charges against him. The distinction between this case and Strawder, in that Jinks’ prior charges were misdemeanors and not felonies, makes no difference; evidence of a prior arrest is itself prejudicial error. The issue is character, not impeachment, so drawing a line between crimes of moral turpitude or felonies and crimes which are mala prohibita is futile. Despite the fact that DUI is not a crime of moral turpitude, and thus cannot be used to impeach a witness, Hall v. Hall, 261 Ga. 188 (402 SE2d 726) (1991), it does impugn a person’s character. Lancaster v. State, 189 Ga. App. 149 (2) (375 SE2d 281) (1988) (officer’s reference to defendant’s prior “DUI [license] suspension” improperly injected character). See Richardson v. State, 199 Ga. App. 10, 11 (2) (403 SE2d 877) (1991), in which this Court held it was reversible error for an officer to state that he knew defendant from “previous arrest warrants.” See also Chapman v. State, 202 Ga. App. 267, 268 (2) (414 SE2d 240) (1991) (prosecutor’s statement that defendant had suspended driver’s license impermissible); Racquemore v. State, 204 Ga. App. 88 (2) (418 SE2d 448) (1992) (testimony the defendant was on probation and living at halfway house impermissible); Stanley v. State, 250 Ga. 3 (1) (295 SE2d 315) (1982) (officer’s testimony to effect defendant among those on whom police had previous cases impermissible).

Decided October 23, 1997.

Bruce S. Harvey, David S. West, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

As the evidence against Jinks was not overwhelming, it is not highly probable that the jury would have convicted him absent this prejudicial error. Richardson, supra at 12. He is entitled to a new trial free of it.

Admission of a fingerprint card does not in and of itself place the defendant’s character in evidence. Woodliff v. State, 177 Ga. App. 508 (339 SE2d 777) (1986). The proper procedure is to redact from the card any information which might tend to violate OCGA § 24-2-2 or 24-9-20 (b). Williams v. State, 184 Ga. App. 124 (361 SE2d 15) (1987).

3. Jinks’ remaining enumeration, challenging the authenticity of the fingerprint card, is moot.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.


author: ELDRIDGE, Judge.

text:
    A97A2281.
    TENANT v. THE STATE.
    (492 SE2d 909)
   ELDRIDGE, Judge.

Appellant John Ray Tenant was charged in a five-count indictment, 94-RCCR-71, with false imprisonment, aggravated sodomy, and rape against one female victim (“victim A”) on July 10,1993, and with kidnapping and criminal attempt to commit aggravated sodomy against another female victim (“victim B”) on October 22, 1993. The two incidents were severed for trial, and the latter charges were tried first. The jury acquitted appellant of kidnapping but convicted him of criminal attempt to commit aggravated sodomy. This Court affirmed appellant’s conviction. Tenant v. State, 218 Ga. App. 620 (462 SE2d 783) (1995). Tenant was tried on the remaining counts of the indictment, and a Richmond County jury found him guilty on all three counts: rape, aggravated sodomy, and false imprisonment. Tenant now appeals the results of this second jury trial. Held:

In his sole enumeration of error, appellant does not challenge the sufficiency of the state’s similar transaction notice. Instead, appellant contends that “It is beyond dispute from the facts of this record that no notice was given in this case”; appellant alleges error pursuant to Uniform Superior Court Rule 31.3.

While appellant is correct that the record of his second trial under Indictment 94-RCCR-71 is slim, indeed, and contains no notice of the state’s intent to introduce similar transactions, we take judicial notice of the prior proceedings before this Court pursuant to Indictment 94-RCCR-71 and affirm appellant’s conviction.

Prior to the severance of the counts in Indictment 94-RCCR-71 and pursuant to USCR 31.1 and 31.3, the state filed notice of its intent to introduce similar transaction evidence. The sufficiency of this notice was never challenged and is not challenged herein. The state’s intent was to introduce evidence of the offenses against the two victims named in the indictment as “similar transaction evidence,” as well as substantive evidence; in this way the jury could consider evidence of the offenses against one victim in ascertaining appellant’s guilt as to the offenses against the other victim. In addition, the state’s intent was to introduce similar transaction evidence of appellant’s prior 1977 rape and kidnapping convictions.

A USCR 31.3 hearing was held with regard to the similarity and admissibility of the noticed offenses. Following the hearing and based upon an unrelated matter, the presiding judge severed the counts of the indictment involving each of the victims. The presiding judge left the final ruling regarding the admissibility of the similar transaction evidence to the judge who would try the case. The state then proceeded to trial on the counts relating to victim B.

Immediately prior to this first trial, the similar transaction issue was raised before the trial court, and another hearing was held. The trial judge ruled that the state’s similar transaction evidence was admissible. The correctness of this admissibility ruling has never been challenged and is not challenged herein. The offenses against victim A and the 1977 offenses were introduced against appellant during the trial of the crimes against victim B.

Following appellant’s conviction in the first trial, the state proceeded to try the remaining counts involving victim A. In voir dire the prosecutor made reference to the similar transaction victims. The appellant objected, stating that he had “no notice” that the state intended to introduce evidence of similar transactions in the trial of the crimes against victim A. Appellant argued that the only notice provided was with regard to the introduction of similar transactions in the prior trial of offenses against victim B. This is the enumeration of error that is before us now.

(a) The similar transaction notice was filed under Indictment 94-RCCR-71 prior to the severance of the counts. It was sufficient as to all counts contained therein, and it notified appellant of the state’s intent with regard to the introduction of similar transaction evidence under that indictment. After proper notice is filed pursuant to USCR 31.3 and a hearing is held thereon, the state is not required to re-file such notice simply because the counts of the indictment are subsequently severed, when the case is still proceeding pursuant to the same indictment under which the notice was filed in the first place.

Further, appellant was well aware of the state’s intent with regard to the similar transaction evidence, as witnessed by his filing of a motion in limine immediately prior to the second trial with regard to such evidence. “[T]he purpose of Uniform Superior Court Rule 31.3 is to provide a criminal defendant with fair and adequate notice of the State’s intention to utilize evidence of prior similar transactions so that questions as to the admissibility of such evidence can be resolved before trial. Because it is undisputed that prior to the first hearing Tenant had notice of the State’s intention to use the evidence and he was fully aware of how the court intended to address the State’s motion, Tenant was not harmed by the lack of any subsequent notice.” (Citations and punctuation omitted.) Tenant, supra at 621 (2).

(b) Appellant alleges that the prosecutor failed to identify an appropriate purpose for the introduction of the similar transaction evidence which resulted in the trial court’s failure to properly limit the jury’s consideration of such evidence. See, e.g., Rodriguez v. State, 211 Ga. App. 256 (439 SE2d 510) (1993). However, appellant has not provided us with a transcript of the similar transaction hearings held under Indictment 94-RCCR-71. “It is the burden of the complaining party ... to compile a complete record of what happened at the trial level, and when this is not done, there is nothing for the appellate court to review.” (Citations and punctuation omitted.) Wright v. State, 215 Ga. App. 569, 570 (2) (452 SE2d 118) (1994). Moreover, “[t]he presumption is in favor of the regularity and legality of all proceedings in the [court below].” Grinad v. State, 34 Ga. 270, hn. 1 (1866); Newton v. Newton, 222 Ga. 175 (149 SE2d 128) (1966). In this case, the trial court charged the jury that the similar transaction evidence was to be considered for the limited purpose of showing “identity,” “state of mind,” and “knowledge or intent.” As the trial court’s charge named appropriate purposes for the introduction of such evidence under Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), no error has been shown. Id. at 642.

Decided October 23, 1997.

Garrett & Gilliard, Michael C. Garrett, Melissa S. Padgett, for appellant.

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

(c) The objection raised by appellant at trial was with regard to the state’s alleged failure to provide adequate notice. Appellant did not contend at trial, as he does before this Court, that “no pre-trial hearing was held” pursuant to USCR 31.3. In addition, appellant did not contend in the court below that the procedures of Williams, supra, were not followed during the similar transaction hearings. To the extent that the enumeration of error alleged before this Court may be read to encompass these additional contentions, we will not consider them. Gee v. State, 210 Ga. App. 60, 61 (3) (435 SE2d 275) (1993); Cole v. State, 211 Ga. App. 236, 238 (438 SE2d 694) (1993).

Judgment affirmed.

Birdsong, P. J., concurs. Ruffin, J., concurs in judgment only.

       The record and transcript of appellant’s first trial in 1995 are no longer before this Court. However, we take judicial notice of the briefs of the parties in the prior appeal, which remain before us, as well as our factual and legal determinations as to the issues raised in the prior appeal. See Kinney v. State, 223 Ga. App. 418 (477 SE2d 843) (1996).

       At the second trial, both the state and appellant made numerous references to the judges’ comments allegedly made during the previous similar transaction hearings; there is no evidentiary support before this Court for any of the quotes attributed to the judges who previously heard the similar transaction matters.


author: Blackburn, Judge.

text:
    A97A2342.
    BRAY v. THE STATE.
    (492 SE2d 911)
   Blackburn, Judge.

Recardo Bray appeals his conviction of aggravated assault in connection with the shooting of Brent Ooten,. contending that the court erred in denying his motion to exclude certain testimony and in granting the State’s motion to exclude other testimony.

1. Bray contends that the court erred in denying his motion to exclude testimony regarding his statements after the shooting, arguing that the evidence was irrelevant and prejudicial and subjected him to unfair surprise and ambush.

The record shows that, prior to the start of trial, the prosecutor stated that he intended to introduce certain statements made by the defendant after the crime, including a statement that he “popped” the victim. Bray’s attorney objected on the ground that the testimony would be irrelevant and prejudicial. He did not object on the grounds of unfair surprise and ambush and thus cannot raise these grounds for the first time on appeal. See Bailey v. State, 198 Ga. App. 632, 633 (1) (402 SE2d 363) (1991).

With respect to Bray’s other asserted grounds, “[a]n objection to evidence on the ground that it is irrelevant . . . and prejudicial is entirely too vague and general to present any questions for determination by the trial court, and the overruling of this objection does not constitute reversible error.” (Punctuation omitted.) Hall v. State, 219 Ga. App. 871, 873 (2) (a) (467 SE2d 206) (1996). Moreover, Bray did not object at the time the testimony in question was actually introduced at trial. Accordingly, he has waived any right to object to such evidence on appeal. See Phillips v. State, 215 Ga. App. 526, 527 (4) (451 SE2d 517) (1994).

2. Bray contends the trial court erred in granting the State’s motion to exclude testimony regarding prior acts of violence by the victim.

Uniform Superior Court Rule 31.6 allows a defendant to present evidence of specific acts of violence by a victim, provided that the defendant complies with the provisions of USCR 31. The defendant must serve the State with written notice “stat[ing] the act of violence, date, county and the name, address and telephone number of the person for each specific act of violence sought to be introduced.” USCR 31.6 (B). The rule further provides that “[t]he judge shall hold a hearing at such time as may be appropriate and may receive evidence on any issue of fact necessary to determine the request, out of the presence of the jury. The burden of proving that the evidence of specific acts of violence by the victim should be admitted shall be upon the defendant. The defendant may present during the trial evidence of only those specific acts of violence by the victim specifically approved by the judge.” Id.

Prior to trial, Bray served the State with a notice of his intent to present evidence of prior acts of violence pursuant to USCR 31.6 (B). Bray admits that the hearing on this issue was not reported, and there is no transcript of this hearing in the record. Nor has Bray sought to create a record of the hearing as allowed by OCGA § 5-6-41. Moreover, Bray’s attorney admitted on the record that the notice provided to the State named the wrong victim and was thus improper. Under these circumstances, we cannot say that the court erred in excluding Bray’s evidence. See Uren v. State, 174 Ga. App. 804, 805 (1) (331 SE2d 642) (1985) (appeal with enumeration of error dependent upon consideration of evidence heard by trial court will, absent a transcript, result in affirmance).

Decided October 23, 1997.

King, King & Jones, David H. Jones, James S. Lewis, for appellant.

Paul L. Howard, Jr., District Attorney, Gina Marshall, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A97A0893.
    ROBINSON v. STOKES.
    (493 SE2d 5)
   Smith, Judge.

This appeal presents the question of whether a defendant who has voluntarily dismissed without prejudice a compulsory counterclaim may renew that counterclaim as an original action under OCGA § 9-2-61 after the plaintiff has voluntarily dismissed the main claim with prejudice and without objection by the defendant. The trial court ruled that res judicata bars the renewal of such a counterclaim and granted summary judgment to the former plaintiff, Stokes, on that ground. We agree, and we therefore affirm the judgment.

The record shows that Annette Stokes and Ola Mae Robinson were involved in a vehicular collision. Stokes filed suit against Robinson, and Robinson answered and counterclaimed. Immediately before the pretrial conference, Robinson voluntarily dismissed her counterclaim without prejudice. Robinson’s insurer, without the participation of Robinson or her counsel, then settled Stokes’s claim. Stokes executed a release that recited that it was entered into without the consent of Robinson, who would not be precluded from asserting claims against Stokes. After executing the release, Stokes dismissed her action against Robinson with prejudice.

Within six months of the voluntary dismissal of her counterclaim, Robinson filed this action as a renewal action pursuant to OCGA § 9-2-61. Stokes answered and moved to dismiss the action, then later moved for summary judgment. The trial court granted the motion for summary judgment, and this appeal ensued.

1. Robinson contends that res judicata does not bar her action. She argues that she had a statutory right to dismiss her counterclaim voluntarily under OCGA § 9-11-41 and a concomitant right to renew it within six months under OCGA § 9-2-61. Robinson is correct in these assertions. OCGA § 9-11-41 (a) provides for voluntary dismissal “without order or permission of court... at any time before the plaintiff rests his case.” Subsection (c) of that statute makes it applicable as well to counterclaims. OCGA § 9-2-61 (a) provides for the renewal of actions within the applicable limitation period or within six months after voluntary dismissal, whichever is later. This statute applies as well to counterclaims. Cale v. Jones, 176 Ga. App. 865, 866-867 (1) (338 SE2d 68) (1985).

But the fact that these statutes apply to counterclaims and that Robinson had the right to dismiss her counterclaim and renew it does not end our analysis. Other statutes and legal principles bear upon the success of Robinson’s dismissed counterclaim and renewed action. OCGA § 9-11-41 (a) itself provides that it applies “[s]ubject to the provisions of . . . any statute.” And a renewal action, being an action de novo, is subject to valid defenses. We acknowledge, therefore, Robinson’s right to voluntarily dismiss her counterclaim and to renew it. But we also must examine any defenses raised by Stokes.

The bar imposed by the doctrine of res judicata, codified at OCGA § 9-12-40, is such a defense. OCGA § 9-12-40 provides that “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” We concluded in Price v. Winn, 142 Ga. App. 790 (237 SE2d 409) (1977), relied upon by Robinson, that neither res judicata nor collateral estoppel barred renewal of the previously dismissed counterclaim. But in Price the two actions involved completely different claims, and identity of parties and cause of action were absent. Here, Robinson’s claim against Stokes not only “might have been put in issue” in the action brought by Stokes; it was required to have been put in issue. Because it arose out of the same transaction that was the subject matter of Stokes’s action against Robinson, it was a compulsory counterclaim. OCGA § 9-11-13 (a). Robinson was therefore required to raise it in that action.

We do not agree with Robinson’s argument that, simply raising her claim and then dismissing it permits her to avoid the effect of res judicata. Here, as in Metropolitan Life Ins. Co. v. Garner, 156 Ga. App. 446 (275 SE2d 96) (1980), because she dismissed her original counterclaim in the first suit, Robinson gave up the right to further litigate her claim. Her counterclaim was compulsory because it arose out of the same transaction as the original suit. Her dismissal of the counterclaim therefore precluded her from asserting it in the second suit because the judgment of the trial court in the original suit was conclusive as to all matters in issue, or which might have been in issue between these parties. Robinson had every right to dismiss her counterclaim in the original suit. Once she did so, however, the counterclaim ceased to exist as a basis of any further claim she may have had against Stokes. Id. at 447.

It is true that Garner is somewhat distinct factually from this case because the original suit was actually litigated; that action went to judgment. But that distinction is one without a difference, because a voluntary dismissal with prejudice operates as a judgment on the merits for purposes of res judicata. Fowler v. Vineyard, 261 Ga. 454, 456 (2) (405 SE2d 678) (1991).

We reject as well Robinson’s argument that it is unfair to apply the doctrine of res judicata to her when it would not be applied to a plaintiff who dismisses her claim without prejudice. OCGA § 9-11-41 (a) provides that if a counterclaim has been pleaded prior to the motion to dismiss, the action will not be dismissed against the defendant’s objection unless the counterclaim can stand independently. This rationale did not apply in Cale v. Jones, supra, relied upon by Robinson, because the facts there were different. In Cale, the counterclaim was dismissed after summary judgment was granted to the original plaintiff. It therefore survived voluntary dismissal. The original counterclaimant was permitted to renew it under OCGA § 9-2-61.

In this case, the remedy for any apparent unfairness resulting from the dismissal of Stokes’s action was an objection by Robinson, which was not made. Even had Robinson not voluntarily dismissed her counterclaim before Stokes’s dismissal with prejudice, the entire action, including Robinson’s counterclaim, would have been terminated when Robinson did not object to the dismissal. D. P. S. Indus. v. Safeco Ins. Co., 210 Ga. App. 289, 290-291 (1) (435 SE2d 762) (1993). See also Thomas v. Auto Owners Ins. Co., 221 Ga. App. 815, 816 (1) (472 SE2d 707) (1996). It follows that because Robinson had voluntarily dismissed her counterclaim and raised no objection to Stokes’s dismissal of the action, her counterclaim is barred by OCGA § 9-12-40.

The trial court did not err in ruling that Robinson’s claim against Stokes was barred by the doctrine of res judicata.

2. Robinson also asserts that Stokes was estopped by her execution of the release from asserting res judicata as a defense to the renewal action. We do not agree.

The release contained standard language prescribed by OCGA § 33-7-12. Determined under other applicable law, Robinson had no viable claim against Stokes. The release document could not create any new rights for Robinson or bestow any independent rights upon her. It merely informed Stokes that any valid claims Robinson had against her were not released. But Robinson’s claim against Stokes was not valid; it was cut off by operation of the doctrine of res judi-cata upon Stokes’s dismissal of her action. Had Robinson reinstated her counterclaim prior to that dismissal or objected to the dismissal, it is possible that her claim against Stokes could have survived. Because she did not, it is barred.

Decided October 10, 1997

Res judicata. Dougherty State Court. Before Judge Salter.

Brown & Scoccimaro, Ralph O. Scoccimaro, for appellant.

Divine, Dorough & Sizemore, William D. Divine, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

       Although Robinson claims not to have been notified of Stokes’s dismissal, she has not. shown this fact by the record. “Factual assertions in appellate briefs which are not supported by evidence in the record cannot be considered in the appellate process. [Cits.]” Fidelity Enterprises v. Heyman & Sizemore, 206 Ga. App. 602, 603 (1) (426 SE2d 177) (1992).


author: Pope, Presiding Judge.

text:
    A97A1142.
    GEORGIA PUBLIC SERVICE COMMISSION v. CAMPAIGN FOR A PROSPEROUS GEORGIA. GEORGIA POWER COMPANY v. CAMPAIGN FOR A PROSPEROUS GEORGIA.
    A97A1143.
    (492 SE2d 916)
   Pope, Presiding Judge.

In March 1995, the Public Service Commission (“PSC”) had its staff investigate Georgia Power Company’s earnings to determine whether the company was receiving in excess of the 12.25 percent return on equity set forth in a 1991 rate case. In its report, the staff found that Georgia Power was not earning in excess of its allowed return, but concluded that Georgia Power’s rates produced annual revenues in excess of its current and future revenue requirements. Based on the above, the staff recommended that the PSC issue a rule nisi so that Georgia Power’s rates could be adjusted to reflect its current revenue requirements. Georgia Power responded to the staff’s findings and recommendation by filing an “Alternative Rate Plan,” which proposed that Georgia Power be allowed to earn a return on equity within the range of 10 percent to 12.50 percent rather than at a single specific percentage rate. Under its Alternative Rate Plan, Georgia Power also agreed not to file any general rate case unless its projected return on equity fell below the above range. It would, however, be required to file a general rate case on July 1, 1998. The Alternative Rate Plan did not actually recommend or request any rate changes for customers.

Rather than issue a rule nisi for a rate hearing, the PSC decided to conduct a hearing during which it would consider both its staff’s report and recommendation, and Georgia Power’s Alternative Rate Plan. The PSC allowed Campaign For A Prosperous Georgia (“CPG”), and others, to intervene in that proceeding and to participate in limited oral argument, during which CPG urged the PSC to conduct a full hearing on the matter. During the proceedings, the PSC’s staff modified its original recommendation and proposed an “Accounting Order.” That order adopted significant portions of Georgia Power’s proposed Alternative Rate Plan, including adoption of the range for return on equity proposed by Georgia Power. It did not, however, change any of Georgia Power’s customer’s rates. Subsequently, the PSC adopted and issued the Accounting Order.

CPG appealed to the superior court. Concluding that the matter should be treated as a rate case, rather than a mere accounting matter, the superior court determined that the Accounting Order was illegal because the PSC had not conducted a full hearing in accordance with the Administrative Procedure Act, see OCGA § 50-13-1 et seq., during which it should have required compliance with the “test year statute,” see OCGA § 46-2-26.1 (b), used in rate cases. The superior court then remanded the case back to the PSC. The PSC has directly appealed the superior court’s judgment in Case No. A97A1142 and Georgia Power has directly appealed in Case No. A97A1143.

1. Although not raised by the parties, we address the threshold question of whether we have jurisdiction to hear the PSC’s and Georgia Power’s appeals. A review of the superior court’s remand order in this case demonstrates that the superior court was not merely considering an interlocutory issue, and that the order did more than merely remand the case to the PSC for the taking of additional evidence that would facilitate the superior court’s final resolution of the case. Instead, the superior court vacated the PSC’s Accounting Order and returned the case to the PSC after making a final determination that the matter at hand constituted a rate case and required a full hearing. Accordingly, unlike the remand orders issued in cases such as Howell v. Harden, 231 Ga. 594 (203 SE2d 206) (1974), Hardison v. Booth, 160 Ga. App. 69 (286 SE2d 60) (1981) and Earp v. Kranats, 184 Ga. App. 316 (361 SE2d 217) (1987), we conclude that the remand order in this case constitutes a final order or judgment. And in the absence of any specific holding that all remand orders must be considered non-final, we further conclude that we have jurisdiction to hear the PSC’s and Georgia Power’s appeals pursuant to OCGA § 50-13-20.

Case Nos. A97A1142 andA97A1143

2. The PSC and Georgia Power both contend that the superior court erred in determining that the hearing before the PSC constituted a rate case, and as such, that under OCGA § 46-2-25 (b), the PSC was required to hold a full hearing before entering its Accounting Order. We agree. A review of the record shows that the hearing in question did not involve an attempt to establish “just and reasonable rates and charges.” See OCGA § 46-2-23 (a). In fact, the record demonstrates that no rate change ever was requested during the PSC hearing, or implemented pursuant thereto. Therefore, the hearing cannot be considered equivalent to a rate case. In the absence of a rate case, we conclude a full hearing pursuant to OCGA § 46-2-25 (b), the permissive language of which does not mandate a full hearing even in rate cases, was not required. And upon review, we find no support for the proposition that Ga. Power Co. v. Campaign For A Prosperous Georgia, 255 Ga. 253 (336 SE2d 790) (1985), demands a different conclusion, noting that that case specifically involved a rate increase.

Decided October 27, 1997.

Thurbert E. Baker, Attorney General, Brenda H. Cole, Alan Gantzhorn, Thomas K. Bond, Assistant Attorneys General, for appellant (case no. A97A1142).

Troutman Sanders, Kevin C. Greene, Joseph S. Asher, Norman L. Underwood, for appellant (case no. A97A1143).

Jacobs & Slawsky, Norman J. Slawsky, for appellee.

3. In the absence of a proceeding to determine the rates Georgia Power would be allowed to charge its customer, we conclude that the trial court also erred in ruling that the PSC was required to comply with the “test year statute” data requirements found in OCGA § 46-2-26.1 (b) before issuing its Accounting Order. By its very terms, that Code section only applies to cases in which the rates to be charged by an electric utility are determined. See Ga. Power Co. v. Ga. Indus. Group, 214 Ga. App. 196, 198 (2) (447 SE2d 118) (1994).

4. In light of the above, we need not consider the remainder of the PSC’s and Georgia Power’s enumerations of error, and we reverse the superior court’s order that remanded the case for a full hearing, thereby reinstating the PSC’s original Accounting Order.

Judgments reversed.

Johnson and Blackburn, JJ., concur.


author: Ruffin, Judge.

text:
    A97A1263.
    KIMBALL et al. v. PERRIER.
    (492 SE2d 913)
   Ruffin, Judge.

Chiropractor Debra Perrier sued Max Kimball, Marvin McClure, and Barbara McClure (“appellants”) after she was evicted from office space she leased for her practice from Stellar Enterprises, Inc. (“Stellar Enterprises”). After the eviction, Stellar Enterprises sold the office property to appellants doing business as Kimball McClure Leasing Company (“Kimball McClure Leasing”). In her complaint, Perrier alleged that appellants committed fraud by concealing the transfer of the office property, and claimed, therefore, that they owed her a one-third share of the proceeds from the office building sale. A jury awarded Perrier $10,000 in compensatory damages and $50,000 in punitive damages. Appellants now assert that the trial court erred in denying their motions for judgment notwithstanding the verdict and new trial because there was insufficient evidence of damages. We agree, and for reasons which follow, we reverse.

1. “Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. A trial court may grant a motion for [j.n.o.v.] only where there is no conflict in the evidence as to any material issue and the evidence, with all reasonable deductions, demands a particular verdict. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendants’] motions for new trial and [j.n.o.v.] will not be disturbed.” (Citations and punctuation omitted.) Willis v. Brassell, 220 Ga. App. 348 (469 SE2d 733) (1996).

Viewed in a light most favorable to upholding the verdict, the evidence at trial showed that in 1987 Perrier wanted to open a chiropractic office and that Max Kimball offered his help. Kimball proposed that he, Perrier and a building contractor, Marvin McClure, work together to build the office on land he previously purchased with McClure for $30,000. Accordingly, Kimball and McClure conveyed the land to Stellar Enterprises, Inc., a corporation established by Marvin and Barbara McClure in 1983, and the corporation thereafter obtained a $210,000 bank loan to finance the construction of the office building and the purchase of equipment. As part of the loan transaction, Stellar Enterprises granted the bank a security deed for the land in the loan amount.

In exchange for conveying the land to Stellar Enterprises, Kim-ball and Barbara McClure each received one-third of Stellar Enterprises’ stock. Although Kimball originally proposed that Perrier pay $10,000 for the remaining one-third share of Stellar Enterprises, when Perrier explained that she had no money, the parties agreed that she would generate the architectural design and landscape plans for the building and decorate the building in exchange for her one-third share. As agreed by the parties, once constructed, Stellar Enterprises leased the facility to Perrier for the operation of her practice, and the corporation assigned the rent to the bank as payment on the $210,000 note.

From the time her clinic opened in 1987 until July 1990, Perrier’s practice struggled financially, but she was able to make all but one lease payment. However, the ad valorem taxes on the office were not paid in 1988 or 1989, and the city issued a writ of fieri facias for the delinquent taxes against Stellar Enterprises’ property. When Perrier failed to pay the past due taxes in July 1990, Stellar Enterprises notified her she was in breach of the lease and demanded that she immediately vacate the premises. Perrier complied with the demand.

Because Stellar Enterprises had no money to satisfy its debts, including the bank note, the company scheduled a corporate meeting in October 1990 and notified Perrier of the meeting. The purpose of the meeting was to consider an offer by appellants doing business as Kimball McClure Leasing to purchase the office property for $197,000, the balance owing on the bank note. Perrier did not attend the meeting where, according to Barbara McClure, the stockholders of Stellar Enterprises decided to sell the property to Kimball McClure Leasing for $197,000 plus the amount of outstanding taxes.

After the sale, appellants denied Perrier was ever a shareholder in Stellar Enterprises and she did not receive any money from the transaction. Perrier subsequently filed the instant action alleging fraud and claiming a one-third share in the sale proceeds.

Although at trial Perrier was required to prove the five elements of fraud in support of her action, see Fowler v. Overby, 223 Ga. App. 803 (478 SE2d 919) (1996), we need not address evidence supporting the first four elements because appellants have only challenged the evidence of damages. The measure of damages in an action for fraud and deceit is the actual loss sustained. See Southern Cellular Telecom v. Banks, 208 Ga. App. 286, 291 (4) (431 SE2d 115) (1993). Upon review of the evidence under the standard presented in Willis, supra, however, we find there was insufficient evidence of damages to support Perrier’s claim.

We note initially, that in the pretrial order, the measure of damages is stated as “the market value of the subject property at the time of the sale from Stellar Enterprises, Inc. to [appellants] less the debt owed to third parties secured by said property plus the appreciation in market value of said property to date less costs of improvements, if any, incurred by [appellants]. Value to be determined by competent appraisal; said damages shall be proportional to [Perrier’s] ownership interest in Stellar Enterprises, Inc.” Thus, it appears Perrier attempted to recover as actual damages a one-third share of what the sale profit would have been if the office building was sold at fair market value.

It is readily apparent from the transcript, however, that contrary to the measure of damages presented in the pretrial order, there was absolutely no “competent appraisal” evidence presented at trial. Furthermore, the only evidence concerning the market price of the office building at the time of sale is the purchase price paid by Kimball McClure Leasing. Even considering this evidence, it fails to show that Stellar Enterprises profited from the sale because the purchase price paid was equal to the amount owed to the bank under the note and the deed securing the property. Thus, even assuming Perrier had a one-third ownership interest in the office building, she could not prove an actual loss from the sale because there was no profit realized from the transaction.

In her brief on appeal, however, Perrier argues that there was sufficient evidence of damages because she stated at trial that she wanted appellants to repay her the money she spent on lease payments. She contends that because there was evidence showing the amount of those lease payments, the trial court properly denied appellants’ motion.

Assuming without deciding that this claim for damages was properly before the jury, see Hasty v. Russell, 165 Ga. App. 276, 277 (300 SE2d 317) (1983), we find that there was insufficient evidence to support the claim. As stated above, the measure of damages in an action for fraud is the actual loss sustained. See Banks, supra. Even if appellants’ alleged fraud resulted in Perrier leasing the office building, her actual loss was not the amount of the lease payments. In return for those payments, Perrier was entitled to, and did in fact occupy the building. Any actual loss resulting from the lease payments would have been the difference between what Perrier actually paid and the fair rental value of the property during her lease. Cf. Brooks v. Dime Savings &c., 217 Ga. App. 441, 443 (1) (457 SE2d 706) (1995). Although Perrier is correct that there was evidence showing the amount of her lease payments, there was no evidence showing she suffered any actual loss by making lease payments that exceeded the fair rental value. See id.; see also Kunzler Enterprises v. Rowe, 211 Ga. App. 4 (438 SE2d 365) (1993).

“ £[T]he question of damages cannot be left to speculation, conjecture and guesswork.’ [Cit.]” Brooks, supra at 442-443. In this case, Perrier presented no evidence showing she suffered any damages based on the property’s sale below market value or based on excessive lease payments. Absent such evidence, the jury was not authorized to award her actual damages and the trial court erred in denying appellants’ motion for j.n.o.v. See id.

Decided October 27, 1997.

Murphy, Murphy & Garner, Thomas B. Murphy, Gammon & Anderson, Joseph N. Anderson, for appellants.

Adrian F. Lanser III, for appellee.

2. We likewise find that the trial court erred in denying appellants’ motion with regard to punitive damages. “‘[T]o establish a cause of action‘for fraud, a (party) must show that actual damages, not simply nominal damages, flowed from the fraud alleged.’ [Cit.] Moreover, a party is not entitled to punitive damages if the party fails to set out a cause of action in tort. [Cit.]” Stiefel v. Schick, 260 Ga. 638, 639 (2) (398 SE2d 194) (1990). Because Perrier failed to show actual damages flowed from the alleged fraud, she failed to establish a cause of action in fraud. Without establishing this cause of action, Perrier was not entitled to punitive damages. See id.

Judgment reversed.

Birdsong, P. J, and Eldridge, J., concur.

       The title of the entity which acquired the office building is inconsistently referred to throughout the record as both McClure-Kimball Leasing Company and Kimball-McClure Leasing Company. It will be referred to here as Kimball McClure Leasing Company, inasmuch as that is the name of the grantee on the warranty deed.


text:
    A97A1442.
    THE STATE v. D’AURIA.
    (492 SE2d 918)
   Pope, Presiding Judge.

The State appeals the trial court’s grant of defendant Ralph D’Auria’s plea in bar based on double jeopardy. The trial court found that the prosecutor at defendant’s first trial engaged in intentional misconduct, and this finding is supported by the record. But there is simply no evidence that the prosecutor acted with a specific intent to avoid an acquittal which was likely to occur in the absence of his misconduct. Accordingly, defendant’s retrial is not prohibited, and we reverse the grant of defendant’s plea in bar.

Defendant, a doctor, was convicted of sexual battery on a patient. In addition to the victim’s testimony about how defendant had improperly touched her, the State presented testimony from two similar transaction witnesses. Defendant sought to question one of the similar transaction witnesses, Janet Tolison, regarding her prescription drug abuse, and to introduce evidence that she had altered the number of pills and refills on a prescription defendant had given her. The State argued that such impeachment would be improper because Tolison had no criminal convictions for drug abuse or prescription forgery, and it produced a copy of her criminal record. The court accepted the State’s argument and the impeachment evidence was disallowed.

In fact, however, Tolison had been arrested for forging a prescription three nights before the trial started. The State was aware of Tolison’s arrest and the nature of the pending charges. But the State chose not to disclose this information to the defendant, and further chose not to disclose it to the judge, even when the subject arose during the course of the trial. When the trial court learned how the State had misled it, it granted defendant’s motion for a new trial and later granted his double jeopardy plea in bar based on the prosecutor’s misconduct.

The State appealed the grant of defendant’s plea in bar, and we remanded, instructing the lower court that even intentional pros-ecutorial misconduct does not generally preclude retrial, and directing the court to determine whether the prosecutor had intended to subvert the protections afforded by the double jeopardy clause. See State v. D’Auria, 222 Ga. App. 615, 616-617 (475 SE2d 678) (1996). On remand, the trial court again granted defendant’s plea in bar, but this time explicitly determined that the prosecution “intended to unfairly secure a guilty verdict or, in the alternative, cause a retrial,” and thereby “clearly subverted defendant’s double jeopardy protection.”

As a general rule, a post-conviction reversal or grant of a motion for new trial which is not based on insufficiency of the evidence does not preclude retrial. See Burks v. United States, 437 U. S. 1, 14-17 (98 SC 2141, 57 LE2d 1) (1978). There is an exception to this general rule, however: The defendant cannot be retried if the retrial is necessitated by prosecutorial misconduct which was “intended to subvert the protections afforded by the Double Jeopardy Clause.” Williams v. State, 258 Ga. 305, 312 (369 SE2d 232) (1988). See also Oregon v. Kennedy, 456 U. S. 667 (102 SC 2083, 72 LE2d 416) (1982).

Some defendants have argued that the double jeopardy bar should be expanded to become a type of exclusionary rule, to exclude retrial whenever the prosecutor’s intentional misconduct is so egregious and prejudicial that it denies the defendant a fair trial. The Supreme Court of Georgia recently rejected this argument in Dinning v. State, 267 Ga. 879 (485 SE2d 464) (1997), however. In Dinning at p. 881, the Court reaffirmed the standard set forth in Williams and held that if the record did not show the prosecutor’s conduct “was for the purpose of aborting the trial and securing an opportunity to retry the case,” the defendant could be retried.

Thus, under Williams and Dinning, prosecutorial misconduct will support a plea in bar based on double jeopardy only if the prosecutor intended to subvert the defendant’s double jeopardy rights by aborting the trial and securing an opportunity to retry the case. In the context of a granted motion for mistrial, this means the prosecutor intended to goad or provoke the defendant into moving for a mistrial. See Oregon v. Kennedy, 456 U. S. at 679. And in the context of a reversal or grant of a motion for new trial, this means the prosecutor intended “to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct.” United States v. Wallach, 979 F2d 912, 916 (2nd Cir. 1992); accord United States v. Gary, 74 F3d 304, 315 (1st Cir. 1996); United States v. Pavloyianis, 996 F2d 1467, 1473-1474 (2nd Cir. 1993); Connecticut v. Colton, 663 A2d 339, 346-348 (Conn. 1995).

Decided October 27, 1997

Ralph T. Bowden, Jr., Solicitor, Debra M. Sullivan, W. Cliff Howard, Assistant Solicitors, for appellant.

Glass, McCullough, Sherrill & Harrold, Robert E. Wilson, Bryan A. Downs, for appellee.

In this case, the trial court’s determination that the prosecutor intended to subvert defendant’s double jeopardy rights was not based on a finding that the prosecutor intended to avoid an acquittal which seemed likely at the time; and such a finding would not have been supported by the record. Tolison was only one of two similar transaction witnesses, and there was no indication that the prosecutor anticipated an acquittal, either prior to or during the trial. To show the prosecutor’s intent, defendant can only point to the prosecutor’s statement that similar transaction witnesses are important to show state of mind in cases of this nature. This general statement, made at the pre-trial similar transaction hearing before Tolison had been arrested, is not evidence of an intent to avoid a likely acquittal at the time of the misconduct.

As the record cannot support a finding that the prosecutor engaged in misconduct with the intent to prevent an acquittal which was likely to occur in the absence of his misconduct, the trial court erred in granting defendant’s plea in bar.

Judgment reversed.

Johnson and Blackburn, JJ, concur.

       This argument has been accepted by the Pennsylvania Supreme Court, based on the Double Jeopardy Clause of the Pennsylvania Constitution. See Pennsylvania v. Smith, 615 A2d 321 (Pa. 1992).


text:
    A97A1507.
    STANDARD MANAGEMENT COMPANY v. SCOTT.
    (493 SE2d 216)
   Pope, Presiding Judge.

Plaintiff Monica Scott is a resident of the Peachtree North Apartments, which are managed and operated by defendant Standard Management Company. Plaintiff brought suit against defendant for negligent maintenance of her apartment after two separate incidents occurred in which plaintiff allegedly was injured due to a portion of a window in her apartment falling out of its frame. After answering plaintiff’s suit and denying liability, defendant filed a motion for partial summary judgment regarding its liability for the second incident. The trial court denied defendant’s motion, and defendant appeals. Concluding that summary judgment should have been granted to defendant as to the second incident, we reverse.

Construed in plaintiff’s favor as the nonmoving party, the record evidence shows that on May 16, 1994, plaintiff entered her eleven-year-old son’s bedroom in her eighth floor apartment and noticed that the curtains to the bedroom window were blowing in the wind. Upon pulling the curtains back, she discovered that the three-foot by three-foot glass portion of the window that actually opened was sitting askew or “catty-corner” in its metal frame. When plaintiff attempted to close this portion of the window back into the frame, the wind coming through the opening blew it completely out of the frame causing plaintiff to fall to the floor with the glass landing on top of her. Although the glass did not break, plaintiff claims she was injured in her fall.

Immediately following the above, plaintiff informed security personnel about the window. She then waited for an ambulance to arrive and take her to a hospital. Upon returning from the hospital, plaintiff found two maintenance men in her apartment, and she saw them put the portion of the window that had fallen out back into its frame and turn a lever to hold it in place. Plaintiff was aware, however, that maintenance had not fixed the window permanently at that time.

The next day, plaintiff informed defendant’s resident manager about the window and gave the manager two window brackets she had discovered on the floor near the window. After the manager told plaintiff that a work order would be filled out and that maintenance would get to the window, plaintiff expressed her concern that the window be permanently fixed to avoid any risk of the same thing that happened to her happening to her son. Realizing the potential danger, plaintiff also instructed her son that his bedroom was off-limits until further notice and that he was to stay away from the window. From that point until May 20, 1994, plaintiff’s son slept in another room with plaintiff to avoid the risk posed by the window, and plaintiff has admitted that she knew maintenance had not repaired the window permanently at any time prior to that date.

On May 20, 1994, while waiting for her son to return home from school, plaintiff heard a loud noise in her son’s bedroom. When she entered the room, plaintiff saw the curtains blowing, and the same glass portion of the window that had previously fallen out of its frame was lying on the floor. Rather than having maintenance address the problem, however, plaintiff picked the portion of the window up and attempted to place it back into its frame. She did this even though it was apparent that the wind was blowing, as it had been four days earlier, and with personal knowledge that it often was blustery on the eighth floor of the apartment complex. Subsequently, the wind again blew the portion of the window back on top of plaintiff, who fell to the floor, but this time the glass broke and cut plaintiff’s legs.

In its motion for partial summary judgment, defendant argued that it could not be held liable to plaintiff for any injuries she suffered during the May 20, 1994 incident because, at that time, plaintiff had equal or superior knowledge of the hazard and assumed the risk of injury in taking the course of action she chose to take. We agree.

“While a landlord is under a statutory duty to keep the premises in repair (see OCGA §§ 44-7-13; 44-7-14), [a landlord] is not an insurer of [its] tenants’ safety. See generally Phelps v. Consolidated Equities Corp., 133 Ga. App. 189 (2) (210 SE2d 337) (1974). ‘Even though the condition of the premises may be hazardous and the landlord negligent, [the landlord] may not be liable for injury where the (tenant) had equal or superior knowledge of the alleged defect. If a (tenant) knows of a defect, “[the tenant] must use all of [the tenant’s] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [the tenant].” (Cits.)’ Hall v. Thompson, 193 Ga. App. 574 (388 SE2d 381) (1989).” Wells v. C & S Trust Co., 199 Ga. App. 31, 32 (403 SE2d 826) (1991).

In the instant case, it is apparent beyond dispute that based on her previous encounter with the portion of the window, plaintiff had some knowledge of the risk of being injured, as well as the danger involved in trying to secure the portion of the window in its closed position while the wind was blowing. Yet armed with this knowledge, the knowledge that the window clearly had not been permanently repaired, and the knowledge that the wind was in fact blowing, plaintiff chose to attempt to reposition the portion of the window in its frame. In doing so, we conclude that plaintiff not only failed to exercise ordinary care for her own safety, but also that she assumed the risk of injury as a matter of law. See Smith v. Mangram, 222 Ga. App. 585, 586 (474 SE2d 758) (1996); Wells, 199 Ga. App. at 32. This is so even though plaintiff contends that she could not have assumed the risk of any glass breaking because the glass did not break during the first incident. Every person of ordinary intelligence knows that falling glass may break and that broken glass may cut. Thus, the risk of being cut was an inherent risk plaintiff assumed by undertaking to fix the window herself under the circumstances presented in this case.

Decided October 27, 1997

M. Scott Barksdale, for appellant.

Nick Long & Associates, Jonathan L. Leach, Powell, Goldstein, Frazer & Murphy, Richard C. Mitchell, Elmer A. Simpson, Jr., for appellee.

Plaintiff’s reliance on cases such as Richardson v. Palmour Court Apartments, 170 Ga. App. 204 (316 SE2d 770) (1984) and Phillips v. King, 214 Ga. App. 712 (448 SE2d 780) (1994), in support of her contention that the superior knowledge and assumption of the risk doctrines should not be applied in the case at bar, is misplaced. Unlike the facts presented in those cases, here there was no coercion of circumstances or necessity which would justify the course of action plaintiff took. Although plaintiff claims she had to try and fix the window herself because she had no telephone and was afraid that if she left her apartment to alert maintenance her son might come home and be faced with an open eighth story window, the record clearly shows that plaintiff had other options. Specifically, the door to her son’s bedroom had a lock on it that plaintiff could have used while she went to alert someone about the window. Additionally, plaintiff simply could have waited for her son, who was expected home shortly, and then taken him with her to report the problem. This is especially true in light of the fact that it is undisputed that the open window, due to its location, did not pose any immediate risk of intrusion by anyone from outside the apartment, and the fact that there was no immediate risk of inclement weather that might damage plaintiff’s apartment or her belongings by way of the open window. Therefore, there was no urgency or specific need in reporting the problem prior to her son’s arrival.

Accordingly, we hold that the trial court erred in denying defendant’s partial summary judgment motion.

Judgment reversed.

Johnson and Blackburn, JJ, concur.


author: Andrews, Chief Judge.

text:
    A97A2322.
    JAMES v. GRAY.
    (494 SE2d 198)
   Andrews, Chief Judge.

Greta James sued Wilson Gray, M.D., for obstetrical malpractice resulting in the death of her newborn son. She appeals the trial court’s dismissal of her complaint as a sanction for her failure to attend scheduled depositions. We affirm.

The record shows that on November 22, 1993, Gray’s defense counsel served James’s attorney, Carey, with notice that Gray would depose James on December 8, 1993. On December 7, Carey told defense counsel that James likely would not appear for the deposition and was seeking another lawyer. The next day, Carey confirmed his client would not show. He gave no excuse for her failure to do so. On December 8, defense counsel again sent Carey notice that James would be deposed on January 18, 1994. Carey soon filed a motion to withdraw as counsel, which was granted after attorneys Fierman and Warren entered appearances for James on December 23, 1993.

Fierman told Gray’s counsel that the scheduled deposition would take place despite the change in counsel. On the morning of January 18, Fierman called Gray’s attorney to confirm the deposition at Fierman’s office and gave Gray’s attorney directions to the office; however, an hour later Fierman called back and said his client would not appear for the deposition, adding that he was considering whether he would continue to represent her. On January 21, 1994, Fierman and Warren requested leave to withdraw from the case on grounds that James had discharged them as counsel. Ten days later, Gray filed a motion to dismiss James’s complaint pursuant to OCGA § 9-11-37 (d) as a sanction for her failure to attend the noticed depositions. Although James’s current counsel, Kendall, entered his appearance on her behalf in February 1994, James filed no response to the motion for sanctions until April 16, 1997, a few days after Gray’s attorneys scheduled a hearing on the motion.

James did not appear at the hearing to explain her failure to appear. Her attorneys offered the explanation that she missed the second scheduled deposition because she had not agreed to be represented by Fierman, but they gave no excuse for her failure to attend the first noticed deposition. The trial court found James’s refusal to attend the depositions “willful, conscious and intentional” and her response to the sanctions motion inadequate.

OCGA § 9-11-37 (d) empowers the trial court to dismiss the complaint of a plaintiff who has refused to attend a properly-noticed deposition. “The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance. A conscious or intentional failure to act is in fact wilful.” (Citation and punctuation omitted.) Washington v. South Ga. Med. Center, 221 Ga. App. 640, 641 (1) (472 SE2d 328) (1996). Evidence showed Gray’s counsel served notices of deposition upon James’s counsel of record, which constituted actual notice to James of the depositions. Addington v. Anneewakee, Inc., 204 Ga. App. 521, 522 (420 SE2d 60) (1992). She failed to appear despite the notice, failed to give a reason for not appearing, and failed to file a timely response to the motion for sanctions. “From this evidence, the trial court could determine that [James’s] failure to comply with [the deposition notices] was intentional. [Cits.]” Washington, supra; see also Addington, supra. Regardless of any efforts James made to mitigate her conduct after the motion for sanctions was filed, the court was authorized to impose the sanction of dismissal. Addington, supra. This Court will not reverse the trial court’s decision absent an abuse of discretion, which James has not shown. Id.

Decided October 27, 1997

Alvin L. Kendall, for appellant.

Sullivan, Hall, Booth & Smith, Rush S. Smith, Jr., Groover & Childs, Frank H. Childs, Jr., for appellee.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.

       It appears the lengthy time between the motion and the hearing may have resulted from a “stay’ of the case ordered by a Louisiana court, as discussed by Grays attorneys at the motion hearing.


author: Johnson, Judge.

text:
    A97A2306.
    DASHER v. THE STATE.
    (494 SE2d 192)
   Johnson, Judge.

A jury found Danny Leon Dasher guilty on five counts of sale of cocaine. He appeals from the judgment of conviction entered on the jury’s verdict.

1. Five separate sales occurred over an eight-day period. An agent of the Georgia Bureau of Investigation testified as follows: On February 9, 1995, a confidential informant told the agent that Dasher had contacted him concerning crack cocaine. The agent met with the informant and, after searching him and his car and determining that he had no crack cocaine, gave him $700 and a microcas-sette recorder. The agent watched the informant enter Dasher’s residence, where he stayed for a few minutes. When the informant returned, he gave the agent seven chunks of an off-white substance in a plastic bag, later determined to be crack cocaine. A tape recording of the transaction was admitted into evidence and played to the jury.

On February 14, 1995, the informant again notified the agent that Dasher had some cocaine for sale. The agent went to the informant’s house. Dasher, accompanied by Calvin Boatright, arrived later. Dasher and the informant walked inside the house and a moment later called the agent to join them. Dasher had a plastic bag containing cocaine, which they proceeded to weigh on a set of scales. The cocaine weighed close to one ounce. The agent gave the informant $1,200, who gave it to Dasher. The agent told Dasher that he wanted to buy two ounces by the weekend, and Dasher assured him that would not be a problem. Boatright remained outside during that transaction.

The next day, February 15, 1995, the agent and informant went to Dasher’s house. Dasher told them to go to the informant’s house and that, in a minute, he would bring two ounces of crack cocaine. Shortly thereafter, Boatright drove up to the informant’s house with cocaine wrapped in a paper towel, for which the agent paid him $2,400.

On February 16,1995, the agent and informant met with Dasher to complain that they had been shorted on the weight of the cocaine purchased the day before. Dasher produced another “cookie,” or large piece of cocaine, and the agent agreed to pay him $700 for it, but said he did not have the money with him. The agent explained at trial that if he had not confronted Dasher about receiving less than an ounce, Dasher would have realized that they were police. Later that evening they went back to Dasher’s house and gave him the $700. While they were talking, Dasher gave the agent another “cookie” for which he expected to be paid later. On February 17, the agent paid Dasher $1,700 for the additional cocaine received the day before.

Dasher contends the evidence was insufficient to support the conviction on the counts alleging sales on February 9 and 15. “On appeal, we do not weigh the evidence, nor do we assess the quality of the evidence or the credibility of witnesses!;] we look only to determine whether the evidence is sufficient to sustain the verdict, construed in the light most favorable to the jury’s verdict and giving that verdict every presumption and every inference towards upholding its validity.” (Citations and punctuation omitted.) Cantrell v. State, 210 Ga. App. 218, 219 (1) (435 SE2d 737) (1993).

(a) With regard to the sale on February 9, Dasher argues that the agent did not actually witness this transaction, and that the tape recording of the transaction was only circumstantial evidence. Even if we accept Dasher’s characterization of the evidence of this transaction as wholly circumstantial, it was amply sufficient for a rational trier of fact to find, to the exclusion of every reasonable hypothesis, that Dasher had sold the informant the cocaine. OCGA § 16-2-20. “What is a reasonable hypothesis is generally a question for the jury, and we have no yardstick to determine what is a ‘reasonable’ hypothesis save the opinion of the jurors.” (Citations omitted.) Jenkins v. State, 201 Ga. App. 395, 396 (1) (411 SE2d 122) (1991).

(b) Without citing any authority, Dasher argues that the evidence of the sale on February 15, 1995, is insufficient because Boat-right delivered the drugs and there was no evidence presented that Dasher received any of the money from the sale. Dasher negotiated the terms of the sale and told the agent and informant to go to the informant’s house where he would meet them with the drugs. The fact that Boatright actually made the delivery does not exculpate Dasher on this count. “A person is concerned in the commission of a crime only if he . . . [intentionally . . . procures another to commit the crime.” OCGA § 16-2-20 (b) (4). Additionally, there was evidence that Dasher was willing to assume responsibility for the fact that less than the amount agreed upon had been delivered. The jury was given a charge defining parties to a crime. Because there was evidence linking Dasher to the drug sale on February 15, the jury was authorized to find him guilty of being a party to that sale even though he did not physically transact it. See Wimberly v. State, 205 Ga. App. 818, 819 (1) (423 SE2d 728) (1992).

The evidence was sufficient for a rational trier of fact to find Dasher guilty beyond a reasonable doubt as to these two counts of sale of cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Dasher argues that the admission of a statement he made to police was error because he was in custody and had not received his Miranda rights. Two law enforcement officers went to Dasher’s house and told him they wanted to question him in connection with a stolen motorcycle. He agreed to go with the officers, and was taken to an office in a building adjacent to the police department to be interviewed. The office was not in the jail or in a facility in which a person could be secured. While being questioned, the agent involved in the drug sales entered the room, Dasher recognized him and stated: ‘You got me.” Dasher was not placed under arrest and was later driven back home by the officers. He was not arrested until 18 days later.

Prior to trial, the court conducted a Jackson-Denno hearing. In admitting the statement, the trial court concluded that Dasher was not in custody at the time the voluntary comment was made. “In deciding the admissibility of a statement during a Jackson-Denno hearing, the trial court must consider the totality of the circumstances and must determine the admissibility of the statement under the preponderance of the evidence standard. Unless the factual and credibility findings of the trial court are clearly erroneous, the trial court’s decision on admissibility will be upheld on appeal.” (Citations and punctuation omitted.) State v. Walker, 204 Ga. App. 1, 2 (418 SE2d 384) (1992). The officer testified that Dasher agreed to be interviewed and was not under arrest. He was not threatened or given any reason to believe that he was not free to go at any time and was driven home at the conclusion of the interview. Because there was no evidence that Dasher had been deprived of his freedom in any significant way, the trial court’s decision to admit the statement was not clearly erroneous and will not be disturbed. See State v. Brannan, 222 Ga. App. 372, 375 (2) (c) (474 SE2d 267) (1996).

3. The trial judge charged the jury, in part, as follows: “It is for you alone to determine the testimony you will believe and the testimony you will not believe. That is your function as a juror. You ladies and gentlemen will determine the law and the facts. You are the sole fact-finder. The Court, that is, I, will give you the principles of law that you will apply to those facts in arriving at your final verdict in this case.” Dasher asserts that the trial court erroneously charged the jury that its function was to determine the law and the facts.

The Georgia Constitution states: “[T]he jury shall be the judges of the law and the facts.” Ga. Const, of 1983, Art. I, Sec. I, Par. XI (a). A previous edition of the Pattern Jury Instructions included a charge: ‘You will determine both the law and the facts.” This instruction was replaced by a more accurate and complete instruction in January 1996, which the trial court in this case also gave to the jury. The better practice would be to limit the instruction to the new pattern charge.

This Court examines the entire charge of the court and not a single excerpt to determine whether the court erred in giving a charge. The charge of the court is to be construed as a whole, and when one part of it plainly tempers and modifies another, so that the ultimate sense and impression are correct, we will not find error. Salisbury v. State, 223 Ga. 414, 415 (3) (156 SE2d 48) (1967). The trial judge instructed the jury that it was the factfinder and that those facts were to be applied to principles of law that he would give to them. Thus, the court’s charge that ‘You ladies and gentlemen will determine the law and the facts,” was not erroneous and, when considered in the context of the entire charge, does not give rise to reversible error.

4. Without reference to authority, Dasher asserts that “the use of an undercover agent to purchase illegal drugs is not authorized by the Official Code of Georgia, Annotated.” Therefore, he reasons the evidence against him was illegally obtained, and counsel was ineffective for failing to file a motion to suppress. The issue of ineffective assistance of trial counsel on this ground was raised by amendment to Dasher’s motion for new trial and was decided adversely to him.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel at trial will be upheld unless it is clearly erroneous. [Cit.]” Polk v. State, 225 Ga. App. 257, 260 (1) (d) (483 SE2d 687) (1997). The trial court’s determination that Dasher was not denied effective assistance at trial based on counsel’s failure to file a motion to suppress, which certainly would have been denied, was not clearly erroneous and will not be disturbed.

Decided October 9, 1997

Reconsideration dismissed October 28, 1997.

Stephen E. Tillman, for appellant.

Stephen D. Kelley, District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


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    A96A1123.
    LAROCQUE v. THE STATE.
    (493 SE2d 648)
    Decided October 28, 1997.

      Chandler & Britt, Walter M. Britt, Gregory D. Jay, for appellant.

      Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.
   Blackburn, Judge.

In Larocque v. State, 224 Ga. App. 92 (479 SE2d 450) (1996), we reversed Larocque’s conviction on an evidentiary error and remanded the case for a new trial. The Supreme Court granted certiorari and reversed our decision in State v. Larocque, 268 Ga. 352 (489 SE2d 806) (1997). Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed.

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


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    A97A1580.
    SUPERIOR INSURANCE COMPANY v. DAWKINS. JENKINS et al. v. DAWKINS. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY v. DAWKINS.
    A97A1581.
    A97A1582.
    (494 SE2d 208)
   Smith, Judge.

These three related cases involve the much litigated question of the effect of a release given in settlement with fewer than all parties in an automobile personal injury action. Because the record contains evidence of a mutual mistake of law as to the effect of the release on a non-party to the agreement, we affirm the trial court’s denial of summary judgment as to that issue in Case No. A97A1582. We conclude, however, that the trial court erred in denying summary judgment to the parties to the settlement and release, and we therefore reverse the trial court’s denial of summary judgment in Case Nos. A97A1580 and A97A1581.

Jane Dawkins was involved in an automobile accident with Quincy Jenkins. Dawkins’s husband handled negotiations on her behalf with Superior Insurance Company (“Superior”), the insurer for Jenkins and his mother, the car’s owner. Mr. Dawkins informed the insurance adjuster for Superior that Dawkins intended to pursue a claim against State Automobile Mutual Insurance Company (“State Auto”), her underinsured motorist carrier, because Dawkins’s medical expenses exceeded Superior’s available coverage.

According to the Dawkinses, the adjuster assured them that the Superior release would not affect their claim against State Auto. The adjuster sent a letter to the Dawkinses enclosing a release and a copy of a new legislative act, Ga. L. 1994, p. 1156, now OCGA § 33-24-41.1 as amended. The letter stated: “Please review these documents. As we read the law we may settle with you for our policy limits, and this should not prevent you from persuing [sic] an underinsured motorist claim against your own insurance carrier. Please review these documents.”

Mr. Dawkins acknowledged that Superior’s adjuster never held herself out as an attorney and did not give legal advice. He discussed the release with his own insurance agent, who “said he didn’t know. He said, if you’ve got a law, it’s the law. He said, I don’t know everything.” Mr. Dawkins also admitted that he did not read the release “word for word,” that he knew the letter was only the adjuster’s opinion, and that he knew she was not acting on his behalf in any way but represented an adverse party. He testified that Superior’s adjuster did not withhold any information, did not try to deceive him, and tried to help. Finally, Mr. Dawkins acknowledged that under the settlement, he and Mrs. Dawkins would obtain all the insurance coverage available from Superior, and that Superior had no obligation to pay any additional sums on behalf of its insured. The Dawkinses signed the release and accepted the money.

The release provided by Superior and signed by the Dawkinses expressly states, however, that it is a general “Release of All Claims” releasing the Jenkinses “and all other persons, firms, and corporations, of and from any and all claims” arising from the collision, rather than the limited release provided for by OCGA § 33-24-41.1 (a) and (b). Upon learning of this general release, State Auto denied Dawkins’s underinsured motorist claim. Dawkins then brought this action making a tort claim against the Jenkinses, a claim against Superior for erroneous legal advice, and a claim against State Auto for underinsured motorist benefits as well as bad faith reliance on the Superior release.. All three defendants moved for summary judgment. The trial court, without stating its reasons other than that genuine issues of material fact remained for trial, refused to grant summary judgment to the insurers or to the Jenkinses. We granted the defendants’ application for interlocutory appeal.

1. State Auto contends that the general release given to the Jenkinses and Superior bars Dawkins’s underinsured motorist claim against it, relying on the principle that a general release in favor of an underinsured tortfeasor and his liability carrier operates to bar the claimant from recovering against an underinsured motorist policy. Darby v. Mathis, 212 Ga. App. 444, 445-447 (2) (441 SE2d 905) (1994). But this contention does not reach the dispositive issue here: whether Dawkins and Superior intended the provisions of OCGA § 33-24-41.1 to apply to the release.

State Auto also relies on the general principle that “[n]o fiduciary relationship exists between one having a claim against an insured and the agent of a liability carrier who seeks settlement of the claim, and a release obtained by him from a party having a claim for damages is binding, even if the statements and representations made by him relative to liability or nonliability for the damages were incorrect or based upon erroneous reasons, unless he has prevented the claimant from making investigation of his legal rights in the premises. [Cits.]” (Emphasis supplied.) Wheat v. Montgomery, 130 Ga. App. 202, 203 (3) (202 SE2d 664) (1973). But Wheat and similar decisions involve allegations of erroneous or fraudulent representation on the part of the insurer alone and failure to investigate on the part of the claimants; this is unilateral rather than mutual mistake.

We do not find applicable, however, the principle of mutual mistake of fact as set forth in Eubanks v. CSX Transp., 223 Ga. App. 616 (478 SE2d 387) (1996), cited by Dawkins. This Court found evidence there of a mutual mistake of fact regarding whether Eubanks and his employer intended a release to include two separate incidents occurring in 1988 and 1990. The release itself recited that it was a settlement and release of all claims arising out of the 1988 incident, but also contained more general language releasing any and all claims arising before the date of the release, which was signed shortly after the 1990 incident. Eubanks’s employer then attempted to rely on this general language to bar the pending claim for the 1990 incident, although that incident was not explicitly mentioned in the release. Id. at 617. On the basis of the internal conflict in the release, as well as testimony that the claimant and his employer’s adjuster calculated damages and negotiated the agreement intending it to apply only to the 1988 incident, this Court found evidence of a mutual mistake of fact regarding the scope of the release. Id. at 618-619.

In contrast to the mistake of fact in Eubanks, which concerned the contents and scope of the release, the amount of damages, and whether the parties intended to include one incident or two, the claimed mutual mistake here appears to be purely a mistake of law. The parties do not disagree with the contents of the release, the incident to which it refers, the amount of the settlement, or other relevant facts. Instead, the disagreement centers around the parties’ understanding of an act of the General Assembly and its effect on the legal consequences of the release agreement.

OCGA § 23-2-22 provides: “An honest mistake of the law as to the effect of an instrument on the part of both contracting parties, when the mistake operates as a gross injustice to one and gives an unconscionable advantage to the other, may be relieved in equity.” OCGA § 23-2-23 provides for similar relief when a draftsman or other agent makes a mistake of law.

This Code section has been applied by the Supreme Court of Georgia to a dispute between a claimant and multiple insurers with facts virtually identical to those here. In Fulghum v. Kelly, 255 Ga. 652 (340 SE2d 589) (1986), the claimant settled with the insurer for the driver of the car in which her decedent was a passenger. Evidence was presented that the agent for that insurer believed the general release he provided would bar only legal action against his company. The driver and owner of the other car involved in the collision asserted the general release as a defense and moved for partial summary judgment. The trial court denied the motion on the ground that the parties to the release were “honestly mistaken as to the legal effect of the instrument.” Id. at 653. The Supreme Court agreed that OCGA § 23-2-22 applied and affirmed, while noting that “the power in equity to relieve mistakes should be exercised with caution, and the evidence shall be clear, unequivocal and decisive as to the mistake. OCGA § 23-2-21.” Id. at 654. Compare Chitwood v. Southern Gen. Ins. Co., 189 Ga. App. 697, 700-701 (377 SE2d 210) (1988) (unilateral mistake rather than mutually unintended legal consequence of release).

The evidence in this litigation suggests that Superior’s adjuster and claims manager misunderstood the law and its effect on the release signed by Dawkins. In her deposition, the adjuster acknowledged that she believed the new law would supersede the release language and allow a partial settlement. Since the record suggests that State Auto would be fortuitously relieved of its contractual obligation to provide underinsured motorist coverage to its insured and Dawkins would be deprived of that coverage, some evidence has been presented of “gross injustice” and “unconscionable advantage” within the meaning of OCGA § 23-2-22. This evidence of a mutual mistake of law is sufficient to forestall summary judgment, and such a mistake of law, if proved clearly, unequivocally, and decisively, would warrant a reformation of the release under Fulghum with respect to its effect on the obligations of State Auto. Accordingly, the trial court’s denial of summary judgment to State Automobile Insurance Company in Case No. A97A1582 is affirmed.

2. While we find the denial of summary judgment appropriate regarding the effect of the release on State Auto, a nonparty to the agreement, we find that the trial court erred in denying summary judgment to the Jenkinses. If an alleged mutual mistake of law regarding the effect of the release on State Auto is proved, the proper remedy under Fulghum is reformation to reflect the intentions of the parties. Fulghum, supra at 654. The record shows without dispute that the Dawkinses intended to settle with Superior for its policy limits and release its insureds, the Jenkinses, from any further liability. There is no allegation of a mistake of fact or of law as to the effect of the release on the parties named in it, and as to them it remains binding. The trial court erred in denying summary judgment to the Jenkinses in Case No. A97A1581.

3. Because the release is effective as to the Jenkinses, it also releases their insurer, Superior, from any obligation on the underlying personal injury claim. “The general rule is that because there is no privity of contract, a party may not bring a direct action against the liability insurer of the party who allegedly caused the damage unless there is an unsatisfied judgment against the insured or it is specifically permitted either by statute or a provision in the policy. None of those exceptions is present.” (Citation and punctuation omitted.) McKin v. Gilbert, 208 Ga. App. 788, 790 (432 SE2d 233) (1993).

Dawkins’s contention that Superior must remain a party in order to determine the legal effect of the release is without merit. In Fulghum, supra, neither the insurer which prepared the release nor its adjuster was a party to the litigation, and their testimony, as here, was preserved in the record. The Supreme Court did not find their presence necessary to its decision.

Decided October 28, 1997.

Brennan & Wasden, Marvin W. McGahee, James V. Painter, for appellant (case no. A97A1580).

Allgood, Childs, Mehrhof & Millions, Michael W. Millions, for appellants (case no. A97A1581).

Fulcher, Flagler, Reed, Hanks & Harper, Ronald C. Griffeth, Elizabeth McLeod, for appellant (case no. A97A1582).

Jimmy D. Plunkett, for appellee.

Superior is also correct in its assertion that Dawkins’s purported claim for erroneous legal advice has no basis in fact or in the law. Mr. Dawkins testified that Superior’s adjuster did not hold herself out to him as an attorney or give him legal advice, and that he knew she was not acting on his behalf in any way but represented an adverse party. He also acknowledged that Superior’s adjuster did not withhold any information or try to deceive him, and he stated that she tried to help him. Under these undisputed facts, it is apparent that no legal advice was given to the Dawkinses by Superior’s adjuster.

Moreover, if a cause of action for erroneous legal advice indeed exists, it must be based upon some duty owed by Superior to Dawkins. Dawkins and Superior had no employment, contractual, or other relationship on which such a duty could be based; their only connection is the circumstances of the injury and Dawkins’s status as an injured person claiming under Superior’s policy. And “ ‘[i]t is clear that no fiduciary relationship exists between one having a claim against an insured and the agent of a liability carrier who seeks settlement of the claim.’ ” Fincher v. Dempsey, 209 Ga. App. 222, 223 (433 SE2d 78) (1993). The trial court erred in denying summary judgment to Superior Insurance Company in Case No. A97A1580.

Judgment affirmed in Case No. A97A1582. Judgments reversed in Case Nos. A97A1580 andA97A1581.

McMurray, P. J., and Beasley, J., concur.

       This Code section allows claimants involved in a motor vehicle accident to execute a limited release in favor of a tortfeasor’s insurance carrier while preserving a claim against their own underinsured motorist carrier. See generally Chance & Middleton, Legislative Review, Insurance, 11 GSU L. Review 200 (1994).

       OCGA § 23-2-27, relied upon by appellants, simply states that ignorance of the law by a party (not a mutual mistake by both) shall not authorize the intervention of equity. Like the Wheat decision, supra, this Code section has no application to a mutual mistake of law by both parties.

        Fulghum has been disapproved on other grounds, Posey v. Med. Center-West, 257 Ga. 55, 56 (354 SE2d 417) (1987), but the analysis of OCGA § 23-2-22 remains sound. See, e.g., Morris v. Chandler Exterminators, 200 Ga. App. 816, 819 (409 SE2d 677) (1991), rev’d on other grounds but aff’d as to this issue, 262 Ga. 257, 259 (4) (416 SE2d 277) (1992).


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    A97A2392.
    WRIGHT v. STUART.
    (494 SE2d 212)
   Johnson, Judge.

Edmund Wright is the owner of a lot in the Lincoln Place Subdivision. He built a garage on his property within 40 feet of the front lot line and less than 15 feet from the western lot line in violation of the Declaration of Protective Covenants for Lincoln Place. Jack Stuart, the owner of another lot in the subdivision, brought suit to enjoin the continuing violation of the covenants created by the placement of the garage. The parties reached a settlement, requiring Wright to move the garage “to a point that will comply in all respects with the said protective covenants applicable to said property within a period of 60 days from May 28, 1996.” The agreement became an order of the court.

When the garage had not been moved by January 1997, Stuart filed a motion to have Wright found in contempt. After a hearing at which both parties appeared with counsel, the court found Wright in contempt of its previous order and ordered him confined in the Ben Hill County Jail until such time as he purged himself of the contempt by payment of $500 in attorney fees to Stuart. The court further ordered that “upon payment [Wright] shall not be required to be confined in the Ben Hill County jail for a period of sixty days during which time [Wright] shall do what is necessary to comply with the June 11,1996[ ] order of this Court as well as of this order by moving his garage to a location that will not violate said protective covenants.” Wright now appeals from the trial court’s order finding him in contempt.

1. Wright contends he was not in wilful contempt because the court’s first order was vague and uncertain. “Parties to stipulations and agreements entered into in the course of judicial proceedings are estopped from taking positions inconsistent therewith, and no litigant will be heard to complain unless it be made plainly to appear that the consent of the complaining party was obtained by fraud or mistake.” (Citations and punctuation omitted.) Macuch v. Pettey, 170 Ga. App. 467, 468 (1) (317 SE2d 262) (1984). Wright has not alleged that his consent to the agreement, which was made the order of the court, was obtained by fraud or mistake.

Furthermore, there is nothing vague or uncertain about the trial court’s order which directs Wright to move his garage to a point that is in compliance with the protective covenants. Section 3 of the Declaration of Protective Covenants explains the setback requirements in detail.

2. Wright also asserts that the imposition of attorney fees for the alleged contempt constitutes improper punishment in violation of OCGA § 9-15-14. We disagree. Wright was not being penalized over and above the actual expenditures required to remedy his own failure to comply with the terms of the consent order. See R.R.R. Ltd. Partnership v. Recreational Svcs., 267 Ga. 757, 759 (3) (481 SE2d 225) (1997).

Decided October 28, 1997.

Larry B. Mims, for appellant.

Mills & Chasteen, Ben B. Mills, Jr., for appellee.

3. Even in the absence of a motion for imposition of penalties, this Court further finds this appeal to be without any arguable merit and, therefore, assesses against Wright a penalty of $500 for prosecuting a frivolous appeal, to be imposed by the trial court on remitti-tur. See Court of Appeals Rule 15 (b); Arnold v. Gwinnett County Bd. of Tax Assessors, 207 Ga. App. 759, 760 (429 SE2d 146) (1993).

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.