text:
    A96A1024.
    MILLER v. STEELMASTER MATERIAL HANDLING CORPORATION.
    (478 SE2d 601)
   Beasley, Chief Judge.

Miller appeals the grant of partial summary judgment to Steel-master and the denial of her motion for partial summary judgment. See OCGA §§ 5-6-34 (d), 9-11-56 (h).

Appellant Fyllis Miller was married to Myron Miller. They each held 50 percent of the stock in Steelmaster, of which Myron Miller was president and Fyllis Miller secretary/treasurer. As individuals, they were also joint owners of a warehouse which Steelmaster rented. The couple divorced on far from amicable terms, and property division was tried in Cobb County Superior Court without a jury. Myron Miller received all stock in Steelmaster, and Fyllis Miller was given complete ownership of the warehouse.

This action began on June 17, 1993, when Fyllis Miller sued Steelmaster in Cherokee County for unpaid rent on the warehouse. On June 22, 1993, in Cobb Superior Court, she also filed a contempt action alleging that Myron Miller had not made rent payments on the warehouse, contending he was required to do so by the divorce decree’s statement that he be responsible for all of Steelmaster’s outstanding debts. On June 28, Steelmaster answered the suit filed in Cherokee County, contending there was no written lease agreement and asserting it had already paid all that was owed. It also counterclaimed for $8,500, contending Fyllis Miller improperly took a $17,572.77 corporate money market account during the divorce and used $8,500 to pay her divorce attorneys, returning the majority of the remainder to the corporation.

During this period, Steelmaster vacated the warehouse. On July 12, 1993, Fyllis Miller amended her contempt application in Cobb Superior Court to include a claim that Myron Miller was responsible for damage to the warehouse that occurred when Steelmaster vacated it. In May 1994, Fyllis Miller amended her complaint against Steelmaster, adding a claim for damages caused to the warehouse during Steelmaster’s departure from it. She voluntarily dismissed the warehouse damage claim from her contempt action against Myron Miller the next month.

Steelmaster then filed a motion for summary judgment, or alternatively partial summary judgment, contending the inclusion of the now-dismissed warehouse damage claim in the Cobb County contempt action against Myron Miller barred any claim for warehouse damage from being included in the Cherokee County suit against Steelmaster. The motion also asked for summary judgment on the claim for unpaid rents. Fyllis Miller, too, filed a motion for partial summary judgment. She asserted that Steelmaster’s counterclaim for $8,500 was barred by res judicata and collateral estoppel. The court granted Steelmaster summary judgment as to the claims for unpaid rent and warehouse damage and denied Fyllis Miller’s motion.

1. In her first enumeration, Miller contends the court erred in determining that her claim against Steelmaster for damage to the warehouse was barred by OCGA § 9-2-5 (a) because of the inclusion of the similar claim against Myron Miller in the contempt action. “No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. ... If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.” (Emphasis supplied.) OCGA § 9-2-5 (a). By its plain language, the statute applies only when the two suits are against the same party. See Moore v. Lamar, 182 Ga. App. 708 (356 SE2d 742) (1987); Hardee v. Allied Steel Buildings, 182 Ga. App. 587, 589 (2) (356 SE2d 682) (1987); Tinsley v. Beeler, 134 Ga. App. 514, 516 (1) (215 SE2d 280) (1975).

In her amended application for a contempt citation, Fyllis Miller sought to recover from Myron Miller for damages to the warehouse. Steelmaster was not a party to that suit and any judgment gained against Myron Miller would not be enforceable against Steelmaster. The fact that Fyllis Miller considers Steelmaster and Myron Miller to be “one and the same” does not alter this fact; they remain separate entities. See Anderson Oil Co. v. Benton Oil Co., 246 Ga. 304, 306, n. 6 (271 SE2d 207) (1980). She was not prosecuting “two actions . . . for the same cause of action and against the same party,” and OCGA § 9-2-5 (a) does not bar the inclusion of the warehouse damage claim against Steelmaster. Although OCGA § 9-2-5 (a) does not apply because these are different parties, the defense would not be available in any case because the claim was no longer pending in Cobb County when Steelmaster asserted its pendency defense. See Griffin v. Griffin, 248 Ga. 743 (285 SE2d 710) (1982); Bouldin v. AragonaGarcia Enterprises, 161 Ga. App. 396, 397 (1) (288 SE2d 673) (1982); Swanson v. Holloway, 128 Ga. App. 453 (197 SE2d 150) (1973).

2. The trial court granted Steelmaster summary judgment on Miller’s claim for past rent because she did not submit an admissible copy of a signed lease so as to satisfy the “Best Evidence Rule.” Her affidavit made in response to Steelmaster’s motion stated that a lease agreement was prepared and she and Myron Miller executed it as owners of the warehouse, and that Myron Miller also executed it as president of Steelmaster. She attached an unsigned copy of a lease agreement, which she swore was a copy of the signed original. The only signed copy, she testified, was placed in a safe deposit box she held jointly with Myron Miller, the contents of which he removed when he filed for divorce. She also points out that the divorce decree states, as a finding of fact, “Steelmaster Material Handling Corporation leases this building and land from [Fyllis and Myron Miller] on a monthly basis pursuant to a written lease agreement.” It does not appear that Myron Miller ever objected to this finding.

“In order to admit secondary evidence, it shall appear that the primary evidence for some sufficient cause is not accessible to the diligence of the party. This showing shall be made to the court, who shall hear the party himself on the question of diligence and the inaccessibility of the primary evidence.” OCGA § 24-5-2. “If a paper shall have been lost or destroyed, proof of the fact to the court shall admit secondary evidence. The question of diligence is one for the sound discretion of the court.” OCGA § 24-5-21.

Myron Miller swore he never executed any lease agreement, but this appeal is from a motion for summary judgment and the evidence is viewed most favorably toward nonmovant Fyllis Miller. Garmon v. Warehouse Groceries &c., 207 Ga. App. 89, 91 (1) (427 SE2d 308) (1993). She produced evidence that an original written lease existed and explained its absence. See Mulkey v. State, 155 Ga. App. 304, 306 (270 SE2d 816) (1980). She also submitted secondary evidence of the document’s contents. This is sufficient to establish a factual issue as to existence and content. Credibility is reserved to a factfinder.

Although the court did not specifically rule on her diligence to secure the original of the lease, see OCGA § 24-5-21, no such ruling is necessary. She avers it is in the hands of her former husband, the president of the opposing party, but he avers it never existed. Any efforts to secure the original would be futile.

3. Miller’s final enumeration concerns the trial court’s denial of her motion for summary judgment on Steelmaster’s counterclaim for $8,500, which she admits was part of the money market account she took for living and litigation expenses. She contends the claim is barred by either res judicata or collateral estoppel. OCGA § 9-12-40 codifies the doctrine of res judicata: “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.” See McIver v. Jones, 209 Ga. App. 670, 672 (434 SE2d 504) (1993). “In deciding whether OCGA § 9-12-40 operates to bar a claim, we must consider: ‘(a) whether there is a valid antecedent judgment; (b) whether there is identity of parties; (c) whether there is identity of issues; and (d) whether reasons of public policy militate against a strict application of the above statute in this case.’ [Cit.]” Miller v. Charles, 211 Ga. App. 386, 387 (439 SE2d 88) (1993).

“The doctrine of collateral estoppel, also known as estoppel by judgment, is similar, but not identical. ‘Generally, res judicata bars relitigation of any matter of a cause of action that was, or could have been, put in issue and adjudicated in a prior proceeding between the same parties, while estoppel by judgment prevents relitigation in a subsequent suit (involving a different cause of action) a matter which was actually adjudicated in a former case. (Cits.) Neither defense, however, is available unless the subsequent suit is between the same parties or their privies. (Cits.)’ [Cit.]” Id.

Although Myron Miller and Steelmaster are separate entities, “ ‘ “[p]rivity connotes those who are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right. . . .” (Cit.)’ [Cit.]” McIver, supra at 672 (a). Myron Miller is now the sole shareholder of Steelmaster. Before the divorce decree’s division of property he was a 50 percent shareholder in the corporation which was a major marital asset. He and Fyllis Miller agreed on a method to determine the amount of their respective financial interests in Steelmaster in the event of divorce. His interest in raising and pursuing a claim that Fyllis Miller had improperly removed $8,500 in corporate assets was identical to Steelmaster’s interest, and for purposes of res judicata and collateral estoppel he and Steelmaster are privies.

Steelmaster contends Fyllis Miller has not shown conclusively that the issue of the $8,500 from the money market was actually litigated in the divorce proceeding, as she has not shown her wrongful taking was a matter specifically presented to the court. Whether it was “actually adjudicated” is an issue only under collateral estoppel. Miller, supra. Second, Miller presented a portion of the transcript of the divorce trial showing the testimony of an accountant who made a valuation of the corporation pursuant to the agreement and other methods. This witness testified he accounted for the money market funds by assigning them back to the corporation as income to arrive at a valuation of the corporation. In making the equitable division of property, the divorce court gave all the value of the corporation to Myron Miller.

In Kenney v. Don-Ra, Inc., 178 Ga. App. 492 (343 SE2d 779) (1986), a trial court was required to determine whether a determination of ownership in a corporation was barred by a prior divorce decree. Here, as there, the divorce court was presented with “the question of division of the corporation ownership in view of the parties’ conflicting contentions as to their respective interests, the [court] in the context of the divorce action had only to state how the property should be divided for the future, not expressly what the precise ownership interests of each party to the marriage had been in the property prior to their division. But obviously, the latter had to be determined first.” Id. at 494.

Kenney presented the pretrial statement from the divorce action that showed a claimed interest in the corporation, id. at 492, which clearly established the parties had “conflicting contentions as to their respective interests.” Id. at 494 (1). Although Miller did not do likewise, the witness’s reference to the money market account as “taken” shows the contention Steelmaster now makes “necessarily had to be decided in order for the previous judgment to have been rendered.” (Footnote omitted.) Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 867 (2) (463 SE2d 5) (1995). “The point is, the issue was submitted as an inherent part of the parties’ request for division.” Kenney, supra at 495.

Even if Miller’s showing that the matter was previously adjudicated was not sufficient to establish collateral estoppel, res judicata applies. Steelmaster argues it does not apply because the causes of action were not identical, in that the prior judgment occurred in a divorce action and this is a counterclaim on behalf of the corporation for breach of a corporate officer’s duty under OCGA § 14-2-830 (this Code section is not cited in Steelmaster’s counterclaim). Had Myron Miller (Steelmaster’s privy) wished to assert in the divorce action that Fyllis Miller’s removal of the funds from the corporate money market account was something more than one party holding marital property that was subject to equitable division, he could have done so. It was a matter that “could have been put in issue, and adjudicated in a prior proceeding between the same parties.” (Punctuation omitted.) Miller, supra.

Decided October 24, 1996

Reconsideration denied November 14, 1996

Kidd & Vaughan, Gwenn D. Holland, Jeffrey B. Kent, for appellant.

F. Clay Bush, for appellee.

The fact that this is not the divorce action is not a bar to asserting res judicata. Rather, the fact that this is a different proceeding shows the basic point. Myron Miller and Steelmaster have identical interests as to these funds; that interest cannot be ignored in the first action and asserted in the later one. Nor does Fyllis Miller’s failure to produce pleadings or further evidence from the divorce action bar her motion for summary judgment. “The entire record of the prior proceeding need not be introduced in support of a res judicata defense. [Cit.]” Waggaman v. Franklin Life Ins. Co., 265 Ga. 565, 566 (4) (458 SE2d 826) (1995).

Judgment reversed.

Birdsong, P. J, and Senior Appellate Judge Harold R. Banke concur.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A96A1750.
    McCROSKY v. THE STATE.
    (478 SE2d 586)
   Judge Harold R. Banke.

Virginia McCrosky, an animal rights activist, was convicted of misdemeanor trespass for her actions during a demonstration at Emory University. In her sole enumeration, she challenges the sufficiency of the evidence.

The evidence, viewed in the light most favorable to the verdict, is as follows. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). On April 29, during Animal Rights Week, Officer Garrison of the Emory University Police Department observed McCrosky carrying a large banner into an Emory University Hospital parking deck. After McCrosky admitted she was there to attend an animal rights demonstration already underway and handed him a flyer, Garrison issued her a criminal trespass warning which stated in pertinent part the following: “This is to confirm that you . . . have been instructed by Officer R. D. Garrison, an authorized agent of Emory University, to leave Emory University property immediately. You will be subject to arrest for Criminal Trespass (OCGA § 16-7-21) if you return to Emory University property in the future. In this regard you should be aware that the property of Emory University includes, but is not limited to: Emory University, Emory University Hospital, the Emory Clinic, the Center for Rehabilitation Medicine, and the Yerkes Primate Center.” (Emphasis in original.) McCrosky left the parking deck after Garrison read her the warning, had her sign it, gave her a copy, and told her to leave Emory property.

About an hour later, Garrison observed McCrosky in a group of demonstrators walking up a public road running through the Emory University campus. Garrison observed her break from the crowd and run, bullhorn in hand, toward the Rollins Medical Research Building, a controlled access building owned by Emory University. As McCrosky attempted to chain herself to a lamppost by the building, yelling slogans about halting animal research, from 35 to 50 individuals followed her to the building. All but McCrosky and two others who locked arms with her returned to the road at Garrison’s request. Officer Garrison again told McCrosky to leave and then arrested her when she did not. Officer Garrison testified that McCrosky had received two other written criminal trespass notices from Emory University in 1994 and 1995. Held:

The evidence is sufficient when a rational trier of fact, viewing the evidence to support the verdict, could find all the essential elements of the crime. Jackson v. Virginia, 443 U. S. at 319-320. The pertinent elements of criminal trespass are: (1) knowingly and without authority; (2) entering onto the land of another; (3) after receiving, prior to such entry, notice that such entry is forbidden; (4) by an authorized representative of the owner or rightful occupant. OCGA § 16-7-21 (b) (2).

We reject McCrosky’s argument that the evidence of notice was insufficient to establish the crime because the written notice did not specifically mention the Rollins facility property. The record shows that she received one written and two verbal warnings to leave the Emory campus on the day of the demonstration. Notwithstanding McCrosky’s contention to the contrary, the written notice clearly extended to all Emory property and not just the parking deck. We find the notice was reasonable under the circumstances and sufficiently explicit to apprise McCrosky of the property she was forbidden to enter. Rayburn v. State, 250 Ga. 657 (2) (300 SE2d 499) (1983). McCrosky’s testimony identifying the Rollins Research Center as an animal research facility on Emory property belies her insinuation that she did not know it was part of Emory University.

Judgment affirmed.

Beasley, C. J, and Blackburn, J., concur.

Decided October 17, 1996

Reconsideration dismissed November 14, 1996.

John Matteson, for appellant.

Ralph T Bowden, Jr., Solicitor, Michele T. McCutcheon, W. Cliff Howard, Assistant Solicitors, for appellee.


author: Birdsong, Presiding Judge.

text:
    A96A1999.
    ORION CAPITAL PARTNERS, L. P. et al. v. WESTINGHOUSE ELECTRIC CORPORATION et al.
    (478 SE2d 382)
   Birdsong, Presiding Judge.

Appellants/plaintiffs Orion Capital Partners, L. P. (Orion) and AFI Acquisition Corporation (AFI) appeal from the order of the superior court granting summary judgment to appellees/defendants Westinghouse Electric Corporation (Westinghouse) and Dog Food, Inc. This is a suit for breach of contract, fraud, legal fraud, negligent misrepresentation, unjust enrichment, constructive trust, mutual mistake, and fraudulent conveyance; appellants seek contract rescission and, as appropriate, damages due to the alleged unfair and deceptive business practices by Westinghouse and Allied Foods, Inc. (now known as Dog Foods, Inc. and hereinafter referred to as Old Allied) endemic to their sale of Old Allied to AFI. The complaint was filed on August 29, 1994.

Due to financial difficulties and an unsuccessful restructuring attempt of Old Allied, Westinghouse became the controlling shareholder of Old Allied. (Westinghouse became directly involved in this matter following the merger of Westinghouse’s former subsidiary, Westinghouse Credit Corporation (WCC), as a business unit of Westinghouse. WCC had issued a $20 million loan to Old Allied. WCC purchased Old Allied’s stock after the loan was in default.) AFI, a wholly owned subsidiary of Orion, purchased the pet food canning and manufacturing business and assets of Old Allied from Westinghouse. The purchase price paid by AFI was based on a multiple of Old Allied’s earnings.

It was averred in the complaint that, unknown to Orion and AFI until after the sale, Old Allied was manufacturing and selling its pet food in violation of law. Old Allied was mislabeling its pet food and substituting cheaper ingredients than described on the product label; cat food cans did not contain the type of fish as labeled and dog food cans misrepresented that the product contained lamb and horse meat when it did not. (Appellee concedes that some of the pet food products were mislabeled, as some cans did not contain the ingredients described by the labels.)

A representative of the appellants who prepared the investment memorandum pertaining to Old Allied for the Orion Partners Investment Board testified by way of deposition that prior to the sale he had conversations with several representatives of Westinghouse and Old Allied. He asked questions relevant to his appraisal of Old Allied’s business, and was told inter alia that Old Allied’s inventory was salable in the normal course of business and Old Allied was not in violation of any laws. The managing director of appellant Orion testified by way of deposition that he and certain Orion employees had been shown misleading financial performance information, specifically regarding the “cost of goods sold of the product,” and was told by an Old Allied representative that to the best of his knowledge Old Allied was in compliance with all laws. Further, the profit numbers given to him were misleading, as they represented profits of a business “based upon the assumption that business was being conducted lawfully, and we later learned it was not.” The business was not being conducted lawfully in that certain of the products required by law to be in the pet food were not present.

Appellants contend inter alia that the undisclosed conduct of Old Allied artificially inflated Old Allied’s earnings, as it would be more costly and would reduce Old Allied’s earnings to use the products listed on the pet food labels; further, that inflation of earnings resulted in an inaccurate computation of the purchase price to be paid for Old Allied. Appellees contended before the trial court that, in accordance with the express terms of the asset purchase agreement (agreement), appellants purchased Old Allied’s assets on an “as is, where is” basis; that appellants agreed to waive and release appellees from any claims arising from Old Allied’s manufacturing operations in exchange for a reduced purchase price, and that any representations and warranties made in the agreement did not survive the closing.

The record discloses that appellants obtained a very attractive purchase price for Old Allied; the purchase price was to be calculated at approximately 5.1 times the earnings before interest and taxes, depreciation and amortization (EBIT) while normally investment banks were fixing a sales price for similar companies of approximately 6 to 6V2 times the EBIT. Thus, the purchase price for Old Allied could be calculated at $3.7 million less than that normally demanded for a typical, similar company. It is unrefuted that appellants recognized they had been offered a favorable purchase price and by their conduct assented to an accelerated execution of the sale before the end of the year.

The sale was consummated on December 30, 1993 with the execution of the agreement; in January 1994, appellants discovered the ingredients in pet food cans did not contain the products reflected on the labels. Subsequent review of Old Allied’s business records confirmed that certain products listed on the labels of the cans had never been purchased. These records had been made available to appellants before the sale was consummated. The mislabeled products were relabeled to reflect their true contents. The pet food was then reformulated to bring the products in compliance with the law. On March 7,1994, appellants issued a report to its credit facility provider, Creditanstalt, announcing it could reduce annual cost impact to $350,000 by the end of 1994. On April 18, 1994, at the Orion Partners quarterly investment meeting, it was reported that the annual cost impact could be reduced to $250,000. However, these goals were not obtained. As part of the cost reduction process, in October 1994, appellant Orion reduced the size of the larger dog food cans from 14 ounces to 13.2 ounces. At the same time, appellant Orion also invested in new plant equipment, such as new processing equipment in the FOG plants, a new freezer in the cat food plant, a new palletizer and case stacker, new electrical equipment, removal of underground storage tanks, and new personal computers. Orion spent $2 million in capital expenditures in 1994 and approximately $300,000 in capital expenditures from the beginning of 1995 to May 11, 1995. It was also reported at the quarterly investment meeting that Orion believed it was entitled to a purchase price adjustment of five times the cost incurred in putting the correct ingredients in the pet food cans that should have been there when Old Allied was purchased. Further, as late as May 11, 1995, Orion was planning to reduce their cat food cans from 6 ounces to 5.5 ounces; to prevent the farther decline of sales, Orion was seeking new accounts to service, trying to improve product quality, trying to develop new products, and trying to control costs. Held,-.

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843).

2. Before the trial court, appellees contended they were entitled to summary judgment “because the purchase of . . . Old Allied was done on an ‘as is, where is’ basis and because [appellants] waived and released [appellees] from any claims arising from past irregularities in the operations of the pet food business.”

Appellants enumerate that the trial court erred in granting appellee-sellers’ motion for summary judgment based upon the terms of the asset purchase agreement where appellant-buyers have stated a claim for fraud in the inducement and rescission; the trial court erred in relying upon “as is, where is,” and “waiver” language in the agreement to negate express representations also contained therein; and the trial court erred in granting summary judgment to Westinghouse, based upon the terms of the agreement, when Westinghouse was not a party thereto. Due to the conduct of appellants, as hereinafter discussed, and the express provisions of the asset purchase agreement, we find all of appellants’ enumerations to be without merit.

(a) In view of our holding in subdivision (b) below, we do not here determine whether appellants justifiably relied on appellees’ false representations when the documents which appellants used to establish their claim of false representations were made available to them during discovery, and when they received a recognized favorable purchase price formula (EBIT). Compare Consulting Constr. Corp. v. Edwards, 207 Ga. App. 296, 298 (1) (427 SE2d 789).

(b) Examination of the asset purchase agreement and the summary judgment order reveals the trial court correctly construed the agreement and the effect of any applicable disclaimer, waiver, release, merger and “as is, where is” clauses therein contained. However, the question remains whether these agreement provisions remain binding and enforceable in view of the averment of a fraud in the inducement claim. As a general rule, “the question of reliance on the alleged fraudulent misrepresentation in tort cases cannot be determined by the provisions of the contract sought to be rescinded but must be determined as a question of fact by the jury. It is inconsistent to apply a disclaimer provision, of a contract in a tort action brought to determine whether the entire contract is invalid because of alleged prior fraud which induced the execution of the contract. If the contract is invalid because of the antecedent fraud, then the disclaimer provision therein is ineffectual since, in legal contemplation, there is no contract between the parties.” (Emphasis supplied.) City Dodge v. Gardner, 232 Ga. 766, 770 (208 SE2d 794); see generally Rivers v. BMW &c., 214 Ga. App. 880 (1) (449 SE2d 337); Crews v. Cisco Bros. &c., 201 Ga. App. 589 (411 SE2d 518); but compare McGuire v. Winkler, 167 Ga. App. 104 (306 SE2d 70) (defense of fraud in the inducement). “If the party elects [timely] to rescind the contract as voidable, he is not bound by the provisions of the rescinded contract. [Cit.] If the defrauded party elects to affirm the contract and sue for damages for fraud and deceit he is bound by the contract provisions.” del Mazo v. Sanchez, 186 Ga. App. 120, 125 (366 SE2d 333). “A contract may be rescinded at the instance of the party defrauded; but [as a well-established general rule] in order to rescind, the defrauded party must promptly, upon discovery of the fraud, restore or offer to restore to the other party whatever he has received by virtue of the contract if it is of any value.” OCGA § 13-4-60; Carpenter v. Curtis, 196 Ga. App. 234, 236-237 (395 SE2d 653); Potomac Leasing Co. v. Thrasher, 181 Ga. App. 883, 886 (354 SE2d 210). But a party need not tender back what he is entitled to keep, and need not offer to restore where the defrauding party has made restoration impossible, or when to do so would be unreasonable. See generally Crews, supra at 589-590 (1). In the case at bar, the attendant circumstances reveal no viable basis for excusing appellants from promptly effecting contract rescission within the meaning of OCGA § 13-4-60.

Examination of the record reveals uncontradicted evidence that following discovery of the alleged deceptive practices and misrepresentations, appellants engaged in a series of management decisions, as herein listed above, which can be construed only as an attempt to continue to operate Old Allied and to do so in a profitable manner. These actions are totally incompatible with contract rescission. Further, even accepting appellants’ contentions that they sent a letter of rescission to appellees “by letter dated August 26, 1994,” such a belated attempt (occurring approximately seven months after discovery of product substitution) is too late as a matter of law to constitute an effective rescission or reasonable offer to rescind the agreement. Compare Meyers v. Hoops, 140 NE2d 65 (C.A. Ohio 1955). Under the circumstances before us, appellants’ reliance on City Dodge, supra and progeny is misplaced. Also substantially distinguishable are the holdings of this Court in McNatt v. Colonial Pacific Leasing Corp., 221 Ga. App. 768 (472 SE2d 435) and Bill Spreen Toyota v. Jenquin, 163 Ga. App. 855 (294 SE2d 533) (where disclaimer of warranty was held to have no effect on the statement of the “subject matter of the sale”; id. at 857). Rather, in view of the lack of valid contract rescission or timely offer to rescind, we find most persuasive and controlling this Court’s holding in Tahoe-Vinings v. Vinings Partners, 205 Ga. App. 829 (424 SE2d 30). By their unreasonable delay in electing their rescission remedy and by the terms of the agreement, appellants have released and waived their claims. Tahoe, supra; see also del Mazo, supra; compare Meyers, supra; cf. Brown v. Ragsdale Motor Co., 65 Ga. App. 727, 731 (16 SE2d 176) (affirmance of contract by conduct; no effective rescission election made). Accordingly, the trial court correctly concluded that summary judgment be granted to appellees/defendants; “a grant of summary judgment must be affirmed if it is right for any reason.” Hanna v. McWilliams, 213 Ga. App. 648, 651 (3) (446 SE2d 741).

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.

Decided October 29, 1996

Reconsideration denied November 14, 1996

Alston & Bird, Jay D. Bennett, James C. Grant, Meredith E. Mays, for appellants.

Schreeder, Wheeler & Flint, David H. Flint, Alexander J. Simmons, Jr., for appellees.


author: Blackburn, Judge.

text:
    A96A1254.
    INTERNATIONAL INDEMNITY COMPANY v. SAIA MOTOR FREIGHT LINE, INC.
    (478 SE2d 776)
   Blackburn, Judge.

International Indemnity Company (International) appeals the trial court’s grant of summary judgment and award of $22,708.37 in defense costs to Saia Motor Freight Line, Inc. (Saia). International also appeals the grant of Saia’s motion to compel discovery in connection with its bad faith refusal to defend a claim.

International’s insured, Gary K. Burleson, was involved in a tractor-trailer collision while driving a truck he had leased from Saia. Burleson had named Saia as an additional insured on his policy with International. Saia was also insured by National Union Fire Insurance Company of Pittsburgh, Pennsylvania (National Union). After David Nesbit, the driver of the other truck involved in the collision, filed suit against Burleson, Saia, and National Union, Saia demanded International defend the action. International refused, and Saia filed a third-party complaint against International.

In an unpublished opinion, this Court affirmed the trial court’s grant of partial summary judgment, holding that National Union was an excess carrier and that International was the primary insurer and had a duty to defend Saia in the tort action. The amount of defense costs and disposition of Saia’s bad faith claim were reserved for later determination. Intl. Indem. Corp. v. Saia Motor Freight Line, Case No. A94A2029, decided February 1, 1995, cert. denied May 5, 1995. Accordingly, International was responsible for Saia’s defense and its associated costs. See Ga. Mut. Ins. Co. v. Rollins, Inc., 209 Ga. App. 744, 746-747 (2) (434 SE2d 581) (1993); see also Commercial Union Ins. Co. v. Ins. Co. of North America, 155 Ga. App. 786, 790 (3) (273 SE2d 24) (1980) (primary insurer has primary duty to defend). International now contests the amount of the defense costs awarded by the trial court following our opinion and the court’s orders requiring it to produce certain documents which Saia requested through discovery in the prosecution of its bad faith claim.

1. International first argues that Saia was not entitled to defense costs because it did not demand a defense from International until approximately one year after the tort action had been filed. International also argues that the award of defense costs should not include any amount for the period that Saia conducted its own defense prior to making demand upon International.

This enumeration is without merit and involves the same coverage issue which this Court has already decided against International. With respect to International’s argument that Saia did not demand a defense until June 16, 1993, just before Saia filed its third-party complaint, the uncontroverted evidence shows that Saia made demand on International over a year earlier, in an April 22, 1992 letter. International does not contest that it received this letter, or that it refused to defend the suit. It was only after International’s refusal that Saia undertook to defend the lawsuit on July 22, 1992. The third-party complaint was filed almost a year later, on July 30, 1993.

2. International also argues that the $22,708.37 award of defense costs to Saia was erroneous because it includes the defense costs of defendant National Union. Contending that it has no duty to pay National Union’s defense costs, International argues that the pleadings in this case show that Saia is wrongfully attempting to recover National Union’s defense costs.

The evidence, including the affidavit of Saia’s attorney, supports the award of defense costs. International has the burden of showing what portion of the $22,708.37 award was allegedly improperly attributed to National Union’s defense and of refuting the evidence of record. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). International has failed to cite any evidence, and the trial court did not err in the award of defense costs.

3. International further appeals an adverse ruling on several discovery issues. Following oral argument, the trial court granted Saia’s motion to compel discovery and ordered International to produce its entire claims file. It also ordered International to produce all bills submitted to it by Lane, O’Brien, Caswell & Taylor (Lane), the law firm which defended the truck driver, International’s insured. Finally, the trial court ordered International to direct Allclaims, Inc., the investigator of the tractor-trailer accident for International, to produce all the documents that had been previously sought by Saia.

On the issue of producing its entire claims file, International argues that “a party cannot be compelled to produce an ‘entire file,’ ” and it also claims that the file contains attorney/client privileged information. International’s argument ignores the fact that the trial court’s order specifically excludes from production all correspondence between International and its counsel, and is groundless. With respect to International’s “entire file” argument, the Civil Practice Act grants judges broad discretion in determining discovery issues, and this Court will “ ‘refuse to interfere with a trial court’s exercise of its discretion in absence of abuse. . . .’ [Cit.]” Kemira, Inc. v. Amory, 210 Ga. App. 48, 51-52 (1) (435 SE2d 236) (1993). “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” OCGA § 9-11-26 (b) (1). The only privilege asserted by International was the improperly argued attorney/client privilege, and the trial court’s order disposes of that objection. International does not contest the relevancy of the material requested, and it cites no authority for its argument that a party cannot be made to produce its entire file. International has shown no abuse by the trial court of its exercise of discretion on this issue.

. International enumerates as error the order to produce the fee bills submitted to it for payment by the Lane firm. Saia’s sole reason for requesting these documents was to show that the sums expended for its own defense in the tort action were reasonable for the services rendered. International asserts that it does not contest the reasonableness of the defense costs awarded, and thus to require the production of the bills is error. International’s argument is inconsistent with its position that the sum awarded included costs for National Union, which necessarily raises the issue of the reasonableness of Saia’s attorney fees. While this appeal may render moot the basis for the production of the subject bills, International has shown no error by the trial court in ordering their production.

Finally, the trial court ordered International “to direct Allclaims, Inc. to produce all documents requested by Saia.” Allclaims, as agent for International, investigated the tractor-trailer collision on behalf of International. Saia filed a third-party document request on All-claims. International filed an objection to this third-party request, and Allclaims itself never responded to Saia’s request. Saia filed a motion to compel only against International.

Normally, a motion to compel is filed directly against the party from whom discovery was sought. See OCGA § 9-11-34. (c) (1). However, as the oral argument on the motion to compel is not contained in the record, and Allclaims acted as an agent of International, “[i]n the absence of a transcript, we must assume that the trial court’s findings were supported by the evidence.” (Citation and punctuation omitted.) Dept. of Human Resources v. Cowan, 220 Ga. App. 230, 232 (2) (469 SE2d 384) (1996). Accordingly, we cannot say that the trial court abused its discretion on this issue.

4. Saia requests the imposition of sanctions against International pursuant to OCGA § 5-6-6, citing International’s failure to support its arguments with authority, its misrepresentations to this Court of record evidence, its attempt to relitigate issues already decided in the previous appeal, and the complete lack of evidence submitted in opposition to Saia’s motion for summary judgment. Saia also asserts the instant appeal was filed only for purposes of delay.

This matter is precisely the type of appeal OCGA § 5-6-6 was designed to address. Based on our earlier judgment, International’s often groundless argument, and the record in the present case, there was no valid reason for International to anticipate reversal of the trial court’s judgment. See Cunningham v. Tara State Bank, 212 Ga. App. 470, 471 (442 SE2d 18) (1994); see also Ray v. Standard Fire Ins. Co. &c., 168 Ga. App. 116, 118 (4) (308 SE2d 221) (1983) (sanctions merited when appellant “knew or should have known that, under a careful reading of the facts and the relevant law, [its] appeal was ill-founded”).

Accordingly, Saia’s motion for sanctions pursuant to OCGA § 5-6-6 is granted, and the trial court is hereby directed to impose a ten percent penalty of $2,270.84 against International and to add said amount to Saia’s judgment upon receipt of the remittitur in this action.

Judgment affirmed.

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

* * *

NOT TO BE OFFICIALLY REPORTED

       This opinion is set out in its entirety following the majority.

       In its enumerations of error, International asserted two separate errors in a single enumeration in violation of the rules of this Court. All of International’s enumerations have been considered, even though such consideration was not required under the rules of this Court. “When an appellant asserts more than one error within a single enumeration this court may, in its discretion, review none, one or both of the errors asserted.” Dept. of Transp. v. 2.953 Acres of Land, 219 Ga. App. 45, 46 (463 SE2d 912) (1995).


author: Beasley, Chief Judge.

text:
    A94A2029.
    INTERNATIONAL INDEMNITY CORPORATION v. SAIA MOTOR FREIGHT LINE, INC. et al.
   Beasley, Chief Judge.

The International Indemnity Company (“International”) appeals from the court’s order denying its motion for summary judgment and granting partial summary judgment to Saia and National Union Fire Insurance Company. The sole question resolved in that order was whether International or National Union was to be considered primary insurer and responsible for providing defense for Saia; the amount of defense costs was reserved for later determination and Saia’s claim of bad faith refusal was left for a jury.

This case arose out of an accident involving a driver named Nesbit who collided with a truck driven by Burleson and titled to Saia. Burleson was operating the truck within Georgia under a lease-purchase arrangement with Saia that required him to carry insurance. International contends he was an employee and Saia claims he was an independent contractor. Saia was required under state and federal regulations to carry blanket insurance, which it did through a policy and self-insurance arrangement with National Union. Burleson had acquired his insurance with International through an agent recommended by Saia. Although Saia required insurance and recommended the agent, the only evidence on this point shows that Saia did nothing more and Burleson was apparently free to use any agent or insurer.

Saia and National Union contend that the specific policy covering the vehicle establishes that International is the primary insurer under Georgia’s “insurance follows the car” rule. In a variety of enumerations, International contends that the National Union policy is primary, either through some allegation of fraud or through an argument that Saia’s policy obtained pursuant to regulation is primary under all circumstances, regardless of other insurance.

In its nine-page order, the court thoroughly and correctly addressed the issues presented. Our decision is unpublished because the law here is clear and addressing the enumerations in the manner put forth by International, as this court does in published opinions, would reduce any precedential value of a published opinion.

There is no reading of the International policy that does not provide primary coverage for Saia. The policy uses the term “you” to mean the insured listed on the declarations page. The declarations shows Burleson listed as insured and shows a notation of “additional insured,” later specified as Saia. In fact, the inclusion of Saia as an additional insured was for the additional consideration of $63. Even if Saia had not been named an insured and, as International insists, Burleson was an employee of Saia, International still agreed to extend primary coverage to Saia in these circumstances. The policy defines “insured” to include “[ajnyone liable for the conduct of [Burleson]. . . .” We have consistently held that such clauses provide primary coverage to employers in respondeat superior situations. Aetna &c. Ins. Co. v. Empire Fire &c. Ins. Co., 212 Ga. App. 642, 643-644 (1) (a) (442 SE2d 778) (1994); Ga. Mut. Ins. Co. v. Rollins, Inc., 209 Ga. App. 744, 745 (1) (434 SE2d 581) (1993). Both these cases are applications of the principles of Zurich Ins. Co. v. New Amsterdam Cas. Co., 117 Ga. App. 426 (160 SE2d 603) (1968), upon which the trial court properly relied.

International contends the court misconstrued the policy provision providing primary insurance “for any covered auto you own.” As the court properly noted, Saia is covered under the policy’s definition of “you” by virtue of its designation as an additional insured. The court also properly interpreted the undefined term “you own” to include Burleson’s leasing of the truck. As Saia points out, an interpretation of “you own” that excludes any leasing arrangement would mean that this standard policy would not provide primary coverage when a driver was leasing his vehicle, a common occurrence. The court did not misconstrue the policy and International advances no evidence or authority to defeat its clear operation. International wishes to concentrate attention on who actually “owned” the truck at the time of the accident, but that does not control the issue. International agreed to provide primary coverage on the specific vehicle for the protection of both Burleson and Saia.

International also alleges it was fraudulently induced to provide coverage, but does not point to any evidence of misrepresentation. The application for insurance clearly shows Burleson’s disclosure of his lease arrangement with Saia, and that Saia should be an additional named insured. On the application, Burleson is designated as “applicant” and “driver”; the only item that could be considered a representation that he owned the truck was his response of “1” to the question of “what is the total # of vehicles owned by the Applicant?” Neither the application nor the policy defines “own” or “owner” and it cannot be assumed that the terms exclude a lease purchaser such as Burleson.

International’s contentions about Burleson’s statement on the insurance application that he was not subject to the Motor Carriers Act and no PSC or ICC filings were required presents no issue of misrepresentation. Even if the statements were false, International representative’s averment that International would not have issued a policy had it known it would be exposed to liability under PSC or ICC regulations presents no issue of reliance; the liability of Burleson, Saia, and International does not arise from any such regulation but from normal tort and insurance law. International was fully aware it was extending coverage to Saia, located in Louisiana.

International attempts to use the blanket coverage required by PSC and ICC regulation to avoid its liability under the policy specific to this truck. That regulation does not prevent a policy such as International issued. As noted by the court, the purpose of the regulation is not to protect an insurer of a specific vehicle but to protect the public as a whole. OCGA § 46-7-12 (a); Carolina Cas. Ins. Co. v. Underwriters Ins. Co., 569 F2d 304, 312-313 (5th Cir. 1978). International points to no authority for the proposition that Saia’s insurance procured pursuant to ICC or PSC regulation is necessarily to be used as primary in any and all instances. In fact, that is the argument specifically rejected by the Fifth Circuit in Carolina Cas. Ins. Co. v. Underwriters Ins. Co., supra.

Decided November 14, 1996

James B. Gurley, for appellant.

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

This case is substantially the same as Ga. Mut. Ins. Co. v. Rollins, Inc., supra at 746-747 (2). As in that case, there are two insurers, one specific to the car and one general to the business, with the business taking a self-insured retention. As in that case, as between the two insurers, International’s specific policy is primary and National Union’s excess.

International also seems to contend that the self-insurance retention agreement between Saia (and its parent company) and National Union is outside the policy and not included in Saia’s ICC and PSC filings, and therefore ineffective. Although neither party points to evidence showing whether the PSC filings include any approved self-insurance plan under OCGA § 46-7-12 (d), the PSC filing does not matter. The purpose of the regulation is the protection of the public. Progressive Cas. Ins. Co. v. Bryant, 205 Ga. App. 164 (421 SE2d 329) (1992). That public policy is upheld here; there has never been any question whether driver Nesbit is protected by primary insurance. The only question addressed here is which insurer is first responsible for defense costs; that is controlled by Ga. Mut. Ins. Co. v. Rollins, Inc., supra, and by International’s agreement to extend protection to Saia.

The court’s order is correct and explains the issues. International’s obligations are controlled by its policy.

Judgment affirmed.

Andrews and Johnson, JJ, concur.

* * *


text:
    A96A1755.
    COCOZZELLI v. ANDREWS HOMES, INC.
    (479 SE2d 391)
   Judge Harold R. Banke.

After Frank Cocozzelli became dissatisfied with the house Andrews Homes, Inc. (“Andrews”) was building for him, he sued for breach of contract, fraud, negligence, intentional infliction of emotional distress, and a violation of the Fair Business Practices Act (“FBPA”). The breach of contract claim asserted in the complaint and amended complaint alleged no specific breach other than Andrews’ unilateral refusal to complete construction. The relief sought under this claim was specific performance or, alternatively, damages. In addition, at trial the court and the parties treated Cocozzelli’s allegation that Andrews agreed to construct the garage with only one door but framed the house for two as a breach of contract claim. Mazur v. Food Giant, 183 Ga. App. 453, 454 (2) (359 SE2d 178) (1987) (pleadings may be deemed amended to conform to evidence). Andrews counterclaimed, alleging Cocozzelli breached the contract by ordering construction to cease.

The court, acting as the trier of fact on the suitability of specific performance, found the contract was too indefinite to enforce as to the garage door, in part because there had been no meeting of the minds on the type of door to be used. The court also found that Cocozzelli unilaterally ordered Andrews to halt construction, which he had no right to do under the contract. Based upon these conclusions, the court dismissed Cocozzelli’s contract claims.

The trial court directed a verdict on Cocozzelli’s claims for fraud, emotional distress, and an intentional violation of the FBPA. The jury rendered a defendant’s verdict on the remaining claims and awarded Andrews $28,000 on its counterclaim. Held:

1. The record refutes Cocozzelli’s claim that the trial court committed reversible error by prematurely requiring him to elect the remedies of either specific performance or damages on the contract claims. Andrews moved in limine to require Cocozzelli to elect a remedy, arguing that such a decision was necessary because the jury would find the facts on a claim for damages, while the court would decide the specific performance issue. The court, after listening to the parties’ argument, stated, ‘T think that we are in agreement then that a remedy had been made pursuant to the defendant’s motion and also by law that they have elected to pursue their remedy of specific performance.” The record shows that Cocozzelli simply acquiesced to this finding. Further, he stated later in the trial “[i]t was my understanding that specific performance would be the correct remedy as opposed to damages.” Litigants may not submit to a ruling and then complain of the same on appeal. Wright v. State, 220 Ga. App. 233, 235 (5) (469 SE2d 381) (1996).

2. Cocozzelli argues that the trial court committed reversible error by dismissing his breach of contract action, thereby violating his constitutional rights by preventing the jury from deciding the factual issue of whether Andrews breached the contract. We disagree.

Turning first to the garage door claim, we note that the contract at issue specifically stated that “[ejxcept for written modifications executed by both parties subsequent to the execution of this contract, the terms of the contract are limited to the provisions contained in this contract and the documents [herein] described. . . It is undisputed that the contract did not mention the type of garage door to be installed and no written modifications relating to the garage door were made. Thus, the garage door issue was susceptible to a directed verdict because as a matter of law Andrews could not breach a term in the contract which did not exist. OCGA § 9-11-50 (a). This fact prevents Cocozzelli from establishing the requisite harm essential for reversal. Miller Grading Contractors v. Ga. Fed. Sav. &c., 247 Ga. 730, 734 (3) (279 SE2d 442) (1981).

We also reject Cocozzelli’s contention that reversal is required because the jury did not decide his claim that Andrews breached the contract by refusing to complete the house. Andrews’ counterclaim alleging that Cocozzelli breached the contract by ordering Andrews to cease construction and Cocozzelli’s claim alleging that Andrews breached the contract by refusing to complete the house are mutually exclusive. The jury implicitly rejected Cocozzelli’s claim by awarding Andrews $28,000 on the counterclaim. Thus, even if the trial court erred by deciding the issue, Cocozzelli’s failure to show harm from the alleged error precludes reversal. Id.

3. The trial court did not commit reversible error by excluding four photographs of other homes Andrews built which purportedly exhibited poor quality construction. Cocozzelli sought to use the photographs to prove fraud and attack Andrews’ claim of being a quality home builder. Before trial, the court granted Andrews’ motion in limine seeking to exclude evidence of occurrences at other residences to prove the requisite elements of the case in chief. However, it subsequently permitted Cocozzelli to cross-examine the project manager and Andrews’ expert about the photographs for impeachment purposes. But later in the trial, after an offer of proof, it sustained Andrews’ objection to their admission based upon Cocozzelli’s inability to establish a foundation as to when thé purported defects depicted in the photographs arose and who caused them, inasmuch as the houses had been completed months previously and were occupied. We cannot say the trial court abused its discretion in refusing to admit the photographs into evidence for lack of proper foundation. Morris v. State Farm &c. Ins. Co., 203 Ga. App. 839, 842-843 (9) (418 SE2d 119) (1992); OCGA § 24-9-83.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.

Decided November 14, 1996.

John R. Burdges, for appellant.

Huddleston & Medori, Kathryn M. Zickert, David O. Harris, for appellee.

       We observe that most of the contentions asserted in the argument section of Cocozzelli’s brief are not supported with citations to the record. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (8) (389 SE2d 251) (1989) (it is not this Court’s function to cull the record on behalf of a party); see Court of Appeals Rule 27 (c) (3) (i).

       The court bifurcated the trial on the issue of punitive damages and would have allowed this evidence had the jury found for Cocozzelli on the claims which permitted punitive damages.


author: Blackburn, Judge,

text:
    A96A1945.
    JOHNS v. THE STATE.
    (479 SE2d 388)
   Blackburn, Judge,

We granted this discretionary appeal to review the trial court’s judgment revoking the probation granted to Caecer Lydell Johns under the First Offender Act. OCGA § 42-8-60 et seq. Johns was originally indicted in 1993 under the alias “Kevin Nunnally” for sale of cocaine and possession of cocaine with intent to distribute. He and his attorney negotiated a guilty plea to a single charge of simple possession of cocaine. At the plea hearing on March 18, 1993, Johns’ attorney asked the court to consider first offender treatment, as “Nunnally” apparently had no prior record. The trial court agreed and granted “Nunnally” first offender status for the conviction.

On June 29, 1993, a warrant was issued for “Nunnally’s” arrest because he had not reported to his probation officer or paid any of the fines assessed against him by the trial court. He was arrested on December 1, 1995. At the probation revocation hearing on December 18, 1995, the trial court sentenced him to 15 years, the maximum sentence for a first offense of possession of cocaine. See OCGA § 16-13-30 (e). The court specifically directed that this time be served in addition to the time he had successfully served on probation.

1. Johns claims the State did not meet its burden of showing he entered the 1993 guilty plea knowingly and voluntarily. See Dean v. State, 177 Ga. App. 123, 125 (2) (338 SE2d 711) (1985) (State must show evidence that plea was made intelligently and voluntarily). This argument fails, as the record shows he freely and voluntarily pled guilty with an understanding of both the nature of the charges against him and the consequences of his plea. Scurry v. State, 194 Ga. App. 165, 166-167 (390 SE2d 255) (1990).

At the plea hearing, the assistant district attorney explained to Johns (who swore he was “Kevin Nunnally”) the charges against him and the possible sentences on those charges. She reminded Johns that he had the right to a trial at which he could testify or remain silent, subpoena witnesses in his behalf, and confront the State’s witnesses. She told Johns he would give up those rights by pleading guilty. Johns told the court he had discussed the charges with his attorney, that he was aware of the State’s recommendation and that he was also aware that the trial court did not have to follow that recommendation, and that he was entering the plea freely and voluntarily. After the assistant district attorney summarized the facts of the case, the trial court asked “Nunnally” if he wished to add anything. He declined.

Johns claims the trial court violated Uniform Superior Court Rule 33.8 by failing to remind him of every right he would relinquish by pleading guilty. But as in McClendon v. State, 256 Ga. 480, 481 (2) (350 SE2d 235) (1986), the question is not whether the trial court followed the letter of that rule but whether the record, as a whole, affirmatively shows his plea was knowing and voluntary. See also Purvis v. Connell, 227 Ga. 764, 767 (182 SE2d 892) (1971) (record must show plea was intelligently and voluntarily made). Johns acknowledged he understood he would give up significant rights and be sentenced by the court. He stated he had consulted with his attorney, and this Court may presume his attorney explained Johns’ rights to him. Scurry, supra at 166. As in King v. State, 215 Ga. App. 139, 141 (1) (449 SE2d 870) (1994), the trial court’s explanation that a plea resulted in the defendant’s waiver of certain rights, the defendant’s acknowledgment that he understood the decision he was making, and his attorney’s statement that he had consulted with his client support the trial court’s finding that Johns knowingly and voluntarily entered this guilty plea.

2. After Johns pled guilty, his attorney asked the court to impose first offender sentencing because “Kevin Nunnally” had no prior offenses. Johns actually had two prior felony convictions, one under his own name and one under the alias “Cecil Jackson.” He now contends that the court erred by failing to determine that he was not eligible for first offender treatment, even though he told the court under oath that he was the “Kevin Nunnally” named in the indictment and that his name was spelled correctly in the indictment. He similarly argues his trial counsel was ineffective for not informing him he was ineligible for first offender treatment because of his other felonies. These contentions are spurious. Johns’ attempt to defraud the court by concealing his true identity allowed him to receive special treatment available only to those with clean records. He will not now be heard to complain that the trial court or his attorney should not have let him “get away” with this fraud. See Bevil v. State, 220 Ga. App. 1, 3 (7) (b) (467 SE2d 586) (1996) (party cannot complain of error created by his own conduct).

3. Johns argues the evidence was insufficient to support the revocation of his probation. The record reveals that as a condition of his first offender probation, Johns was ordered to report to his probation officer as directed and to pay a fine. At the revocation hearing, the probation officer told the court Johns had done neither. Johns presented no evidence, but his attorney told the trial court that Johns was afraid to report to the probation officer because “he had given an alias name and was concerned that if he did come into the probation office it would catch up with his alias names and he would get into trouble.” Even without construing the statement of his attorney as an admission that Johns did not report, a preponderance of the evidence supports the trial court’s finding that he failed to do so as required. See OCGA § 42-8-34.1 (a); see also Riggins v. State, 206 Ga. App. 239, 240-241 (1) (424 SE2d 879) (1992).

Decided November 14, 1996.

E. Stephanie Stuckey, for appellant.

Lewis R. Slaton, District Attorney, Kirby Clements, Jr., Assistant District Attorney, for appellee.

Furthermore, pursuant to his first offender agreement, the court had authority to revoke Johns’ probation “upon the Court’s determination that the defendant is or was not eligible for sentencing under the First Offender Act.” As Johns was never eligible for first offender treatment, his fraud on the court gave the trial court yet another reason to revoke his probation.

4. Johns is correct that the court erred under the facts of this case in directing that the 15-year sentence it imposed after revoking his probation be served in addition to time actually served on probation. The State does not dispute Johns’ claim. A defendant whose first offender probation is revoked should generally be given credit for time successfully served on probation. Stephens v. State, 245 Ga. 835, 837 (268 SE2d 330) (1980); Tallant v. State, 187 Ga. App. 138, 139 (369 SE2d 789) (1988). Neither of the cited cases involved a fraud upon the court by one not legally entitled to first offender treatment. If Johns received no credit for the time he successfully served on probation, his sentence in this case would exceed the maximum 15-year sentence for the subject violation. We do not address the appropriateness of the trial court’s sentence under other facts. Nothing precludes the State from bringing any new criminal or contempt charges which the facts and law may authorize. See Stephens, supra. The sentence is vacated and remanded with direction that Johns receive credit for the time he successfully served on probation.

Judgment affirmed in part, vacated in part, and remanded with direction.

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


author: McMURRAY, Presiding Judge.

text:
    A96A2076.
    RAULERSON v. THE STATE.
    (479 SE2d 386)
   McMURRAY, Presiding Judge.

Defendant was charged in two Uniform Traffic Citations with driving with a suspended license and driving with a prohibited bodily alcohol concentration in violation of OCGA § 40-6-391 (a) (4). After the trial court denied defendant’s motion to suppress, a jury found defendant guilty of the crimes charged. Defendant filed this appeal, challenging the admissibility of the results of her State-administered breath test, and contending the trial court erred in denying her motion to suppress. We agree that the trial court erroneously admitted the results of defendant’s breath test without requiring the State to comply with all of the express and explicit admission requirements of OCGA § 40-6-392 (a) (1) (A). And we reverse the denial of defendant’s motion to suppress because the arresting officer stopped defendant without specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.

While on early morning patrol on August 6, 1994, Trooper G. W. Rogers of the Georgia State Patrol passed an oncoming Mercedes Benz automobile traveling at a low rate of speed on Georgia Highway 32. Discerning no legitimate reason the old-model Mercedes Benz was traveling “between 25 and 30 miles an hour . . .” in a 55-mph speed zone, Trooper Rogers “turned [his patrol car] around on a curve . . . and started towards [the] vehicle to observe it a little bit closer. . . .” As the trooper closed in, however, the Mercedes Benz turned off the highway and headed down a dirt road. Trooper Rogers decided not to follow because hq did not know whether the driver “lived at [a] residence [on the dirt road] or not.” The trooper instead drove until his police cruiser was out of the suspect driver’s sight. He then returned to the dirt road and observed the Mercedes Benz turn “back onto 32 [and head] back towards Patterson!, Georgia].” Trooper Rogers again followed the slow moving Mercedes Benz, this time observing “visible exhaust coming from the rear of the vehicle. . . .” Concluding that the suspect driver was “an impaired driver or a burglar[,]” Trooper Rogers stopped the Mercedes Benz and discovered defendant behind the driver’s wheel. She smelled like alcohol and was not in possession of a valid driver’s license. A subsequent breath test on the State’s Intoximeter 3000 machine indicated that defendant had a bodily alcohol content of .15 percent. Held:

1. The trial court erred in admitting the results of defendant’s breath test because the State failed to establish that its Intoximeter 3000 machine had all of its electronic and operating componénts attached and in working order as required by OCGA § 40-6-392 (a) (1) (A). State v. Hunter, 221 Ga. App. 837 (1) (473 SE2d 192); State v. Kampplain, 223 Ga. App. 16 (477 SE2d 143); Cullen v. State, 223 Ga. App. 356 (477 SE2d 620).

2. Defendant contends the trial court erred in denying her motion to suppress because Trooper Rogers stopped her without specific, articulable facts giving rise to á reasonable suspicion that she was engaged in criminal conduct. We agree.

Although we construe the evidence most favorably to upholding the trial court’s findings and judgment, “[t]his court’s responsibility in reviewing the trial court’s decision on a motion to suppress is to ensure that there was a substantial basis for the decision. Brown v. State, 190 Ga. App. 324, 326 (378 SE2d 908).” Chastain v. State, 196 Ga. App. 50 (1) (395 SE2d 570). To this end, we observe that “ ‘an officer may conduct a brief investigative stop of a vehicle [only when] such a stop [is] justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. . . . This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination.’ (Citations and punctuation omitted.) Jorgensen v. State, 207 Ga. App. 545, 546 (428 SE2d 440) (1993).” State v. Jones, 214 Ga. App. 593 (448 SE2d 496).

In the case sub judice, Trooper Rogers testified that he stopped defendant because, at 1:20 in the morning, defendant was driving “between 25 and 30 miles an hour . . .” in a 55-mph speed zone, defendant turned onto a dirt road when he first began following her, and defendant returned to the highway — driving at a relatively slow rate of speed — after the trooper drove his patrol car out of defendant’s sight. These reasons alone, however, do not support Trooper Rogers’ conclusion that defendant was “an impaired driver or a burglar. . . .” See State v. Goodman, 220 Ga. App. 169, 170 (2) (469 SE2d 327). Trooper Rogers did not observe defendant weave in the highway, react slowly to oncoming traffic, endanger life or property, operate her car improperly, or otherwise demonstrate that she was intoxicated. The trooper’s testimony shows only that defendant was driving an automobile, early in the morning, at a lawful rate of speed. Nonetheless, the State argues that Trooper Rogers was justified in stopping defendant because defendant’s slow speed impeded the flow of traffic in violation of OCGA § 40-6-184 (a) (1) and because “visible exhaust” from defendant’s old Mercedes Benz diesel automobile violated OCGA § 40-8-181 (a). These arguments are without merit.

First, defendant could not have been impeding the flow of traffic in violation of OCGA § 40-6-184 (a) (1) because — by Trooper Rogers’ own admission — there was no traffic on the road for defendant to impede. Second, Trooper Rogers could not have justifiably stopped defendant for violating OCGA § 40-8-181 (a) because there is no proof that the trooper was equipped with a light transmission gauge prescribed by OCGA § 40-8-182 (a) for enforcement of this part of Georgia’s Vehicular Emission Control Act. Indeed, Trooper Rogers admitted upon cross-examination at the motion to suppress hearing that “it was excessive for [him] to write a visible exhaust [violation].” Further, just as in State v. Jones, 214 Ga. App. 593, 594, supra, Trooper Rogers’ conclusion that defendant turned onto the dirt road to escape police detection of wrongdoing is an insufficient basis for an investigative stop. Accordingly, the trial court erred in denying defendant’s motion to suppress. See State v. Goodman, 220 Ga. App. 169, 170 (2), supra.

Decided November 14, 1996.

Solomon & Edgar, M. Theodore Solomon II, for appellant.

Franklin D. Rozier, Jr., for appellee.

3. We do not reach defendant’s final enumeration of error in light of our holding in Division 2 of this opinion.

Judgment reversed.

Johnson and Ruffin, JJ, concur.


text:
    A96A2207.
    D’ANGELO v. THE STATE.
    (479 SE2d 384)
   Blackburn, Judge.

A Screven County jury convicted Campanello D’Angelo of possession of cocaine. OCGA § 16-13-30 (b). In this appeal, he claims the trial court erred by denying his motion to suppress and by rejecting his motion for mistrial, which was based on remarks the prosecutor made in her opening statement. As his arguments are without merit, the judgment is affirmed.

1. D’Angelo moved to suppress the cocaine officers found in his possession, and the court held an evidentiary hearing on that motion. However, nothing in the record indicates the trial court ruled on the motion, and this evidence was admitted without objection. Therefore, on appeal we presume the trial court denied the motion and address D’Angelo’s argument that officers had insufficient reason to stop him or to search him. “On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgment made.” (Punctuation omitted.) Beck v. State, 216 Ga. App. 532, 534 (1) (455 SE2d 110) (1995).

Thus construed, the evidence showed that Sylvania Police Officer McKinney received a late-night call from an informant he considered very reliable. This informant, whose information had led to three arrests and seizures of contraband in the previous six months, told Officer McKinney that he had just seen D’Angelo in possession of cocaine. According to the informant, McKinney would find D’Angelo at a specified residence but that he would be leaving that residence to go to a nearby mill to catch a ride home. McKinney was already familiar with D’Angelo, and he went with another officer, Lairscy, to the residence. From a hiding place, McKinney saw D’Angelo enter the house. A few minutes later D’Angelo left on foot, calling to someone in the house that he “had to get to [the mill] and catch his ride.” According to the officer, the mill was a few blocks away.

McKinney radioed Lairscy, who pulled her patrol car beside D’Angelo, called his name, and asked him to stop. He would not, nor would he comply with her request to put his hands where she could see them, and he kept walking towards the rear of her car. As Officer McKinney approached on foot and reached to restrain D’Angelo, the defendant threw a paper bag he was carrying into the ditch. A bottle came out of the bag. The officer picked it up and found what was later shown to be cocaine.

At a minimum, the information upon which these officers acted was sufficient to create a reasonable, articulable basis for stopping D’Angelo. Officer McKinney’s testimony showed the confidential informant had given reliable information on several occasions, and the officer saw and heard for himself that the informant could accurately predict D’Angelo’s activities that evening. See Stanley v. State, 213 Ga. App. 95, 96 (443 SE2d 633) (1994) (tip which is sufficiently detailed to predict suspect’s future behavior may create reasonable suspicion to support an investigatory stop where officer can corroborate informant’s predictions). As in McFadden v. State, 218 Ga. App. 327, 328 (1) (461 SE2d 542) (1995), this information gave officers the right to momentarily detain and question D’Angelo based on a “fair probability” that he was carrying cocaine. D’Angelo’s refusal to comply with Officer Lairscy’s requests could be construed as an attempt to leave the scene, adding another basis for the officers’ suspicions. See State v. Smalls, 203 Ga. App. 283, 286 (2) (416 SE2d 531) (1992) (suspect’s attempt slowly to leave the scene was assessable as flight). Furthermore, because D’Angelo threw away the bag containing the cocaine when Officer McKinney approached him, the trial court was authorized to find that the cocaine was not seized as the result of a search but was instead abandoned before D’Angelo submitted to the officer’s request to stop. See Anderson v. State, 209 Ga. App. 676, 677 (434 SE2d 122) (1993); accord Smith v. State, 217 Ga. App. 680 (2) (458 SE2d 704) (1995). Additionally, on facts similar to those at hand, this Court has found not only grounds for momentary detention, but also probable cause to search. Pittman v. State, 208 Ga. App. 211, 219 (7) (430 SE2d 141) (1993). Therefore, the trial court did not err in refusing to suppress the cocaine.

Decided November 14, 1996.

Joseph A. Bazemore, for appellant.

R. J. Martin III, District Attorney, Martha-Ann C. Kirkland, Assistant District Attorney, for appellee.

2. Neither did the trial court err by failing to grant a mistrial when the prosecutor, in her opening statement, referred to the “drug problem” in America and said D’Angelo was part of that problem. Without any objection, the trial court instructed the State to discuss only the evidence to be presented and not to argue. The court denied D’Angelo’s subsequent motion for mistrial and told the jury to disregard the comments. Even if the prosecutor’s statement constituted error, D’Angelo failed to preserve the issue because he did not thereafter renew his motion for mistrial or request further curative instructions. See Tidwell v. State, 219 Ga. App. 233, 237 (4) (464 SE2d 834) (1995). Therefore, this enumeration is without merit. Furthermore, we do not believe these are the type of incurable, inflammatory remarks that require a mistrial. See Cain v. State, 212 Ga. App. 531, 535 (442 SE2d 279) (1994); see also McKibbons v. State, 216 Ga. App. 389, 392-393 (4) (455 SE2d 293) (1995) 0not error for prosecutor in closing argument to remark that drugs are “ravaging our community”).

Judgment affirmed.

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

       But see Boston v. State, 185 Ga. App. 740, 741-742 (2) (365 SE2d 885) (1988) (because the defendant had not obtained a ruling on his motion to suppress, this Court had nothing to review).


author: Birdsong, Presiding Judge. Beasley, Chief Judge,

text:
    A96A1377.
    GRIFFITHS v. SCHAFER et al.
    (478 SE2d 625)
   Birdsong, Presiding Judge.

Kerry Schafer, a veterinary technician, sued Arthur Griffiths, the owner of an Akita dog who attacked Schafer while she was attempting to place a collar around him. The trial court denied the dog owner’s motion for summary judgment, and he appeals. Held:

In Lundy v. Stuhr, 185 Ga. App. 72, 73 (363 SE2d 343), this Court held that a kennel attendant assumed a known risk that a dog “might bite” and thus assumed the risk of a dog bite when opening the animal’s cage to retrieve his water bowl. In that case, a sign was placed outside the cage door with stickers stating the dog “doesn’t like girls,” was an “escape artist” and “will bite.” Lundy, a male, was assigned to attend that dog and had done so for several days before he was severely bitten. He testified he had been taught how to act in a “fluid” way so as not to provoke tendentious dogs. While reaching for the dog’s water bowl, Lundy saw the dog coming toward him but apparently took no protective action and continued to reach for the water bowl. When the dog arrived near Lundy, Lundy stood up and put his left arm up, and the dog attacked, inflicting numerous severe bite wounds.

The question we addressed in that case was whether Lundy assumed the risk of a dog bite, “thus eliminating] any issue of liability in the Stuhrs for exposing Lundy to a ‘vicious’ dog.” Id. at 73. We held: “It is in the common knowledge of the members of society that even domestic animals, when startled, are prone to defend themselves by biting. It is an unwise person who approaches an unknown dog and makes gestures toward that dog without first ascertaining the propensities of the dog. That such is common knowledge is manifested in this record by Lundy’s concession that he is aware that all dogs, large or small, may bite. It was for this reason that he received special training how to handle dogs and how especially to handle large dogs because of their ability to inflict serious injury.” Id. at 73-74. We affirmed the summary judgment to the dog owner in Lundy, on the basis of the general doctrine of assumption of risk by workers in certain professions: to wit, that ordinarily there is no duty to give warning to the members of a profession against generally known risks in that profession, and there need be no warning to one in a particular trade or profession against a danger generally known to that trade or profession. We concluded that Lundy was well aware this dog could attempt to escape from his cage, and “[w]hile Lundy sought to limit the implication that the dog would bite females, the sign prominently displayed on the exterior of the cage simply stated the dog ‘Will bite.’ ” Id. at 74. This logically “would require Lundy to exercise special caution” with this dog, but when Lundy saw the dog moving toward him, he did not speak soothingly or withdraw but ignored the moving dog until it was at the door, and then Lundy suddenly stood up and raised his left arm. We held that Lundy went into the situation with his eyes wide open; that he saw the whole picture and had the opportunity to measure the risk; and that he was under no compulsion to enter the cage and thereafter ignore the movement of the dog. In Lundy, “the veterinarian voluntarily entered into a contract for care of the Stuhrs’ dog, with full knowledge of the risk, and informed his employee via the posting of signs on the dog’s run. Knowledge of the danger was apparent and the veterinarian and his assistant acquiesced in it by undertaking care of the dog” (Emphasis supplied.) Id. at 75.

The plaintiff in this case makes strong attempts to distinguish the facts in this case from those in Lundy. She admits she had worked for eight years as a dog handler in six different veterinary clinics, had specifically dealt with Akita dogs in the past, and knew they were aggressive and unpredictable. She had personally seen this dog’s aggressive behavior, and she knew Akitas could be violent or aggressive, as she had “seen it in the breed” before this incident. She knew this dog had a tendency to “get a little out of hand” and that he “became agitated and started growling and showing his teeth and [jumped off the table]” while the staff attempted to give him shots in the past. During that earlier incident, the dog went to a corner “and wouldn’t let any of [the attendants] get near him,” and if anyone approached the dog, he growled and acted as if he were going to bite. Despite her knowledge of these facts, however, she contends there are issues of fact whether there was a notation on the dog’s chart that he “may bite,” even though the veterinarian himself testified there was such a notation highlighted in pink. She also contends there is a big difference between a notation that a dog “may bite” and that he “will bite,” as was the case in Lundy.

We fail to discern a dispositive distinction between a, notation that a dog “may” bite or that he “will” bite, such that in the latter case a veterinary attendant handling such dog may assume the risk of being bitten while in the former case she may not assume the risk. The risk of being bitten, if it exists at all, must be assumed by the handler to be potentially the same in both instances. With specific knowledge of the aggressive propensities of this particular breed of dog, and of this particular dog, Schafer voluntarily attempted to place a collar on him. Assumption of the risk in certain professions refers to the risk that the situation is potentially dangerous; it is not necessary to the assumption of the risk that she acted negligently, as Lundy perhaps did in his sudden movement in the Lundy case. Assumption of the risk is a matter of knowledge of the danger and intelligent acquiescence in it. Id. at 75. We find it significant that, as in Lundy, the veterinarian voluntarily entered into a contract for the care of Griffiths’ dog with full knowledge of the Akita breed’s violent and aggressive potential. So did the attendant. As we said in Lundy, every adult is presumed to be endowed with normal faculties, both mental and physical. Id. at 74. No evidence has been presented to us that Schafer was compelled or forced to do this work or to put a collar on this particular dog, beyond her ability and prerogative as an adult to refuse.

It is significant to this decision that the care of dogs necessarily involves, as said Judge Deen in his dissent in Lundy, both good dogs and bad dogs. Schafer assumed the risk of dealing with this “bad dog” beyond any genuine issue of material fact.

We specifically note that we do not in this case establish that there is an immutable, absolute assumption of risk by veterinary employees in handling animals. The provisions of OCGA § 4-8-30 that “the owner of a dangerous dog or potentially dangerous dog shall be solely liable for any injury to or death of a person caused by such dog” does not impose absolute liability on the owner of a dog who has bitten before. OCGA § 4-8-30 means that if any person is liable for such bite, it is the owner, and not a government official. Each case depends on its facts. In general, veterinary employees know that practically any dog will bite in certain circumstances and that particularly violent and aggressive breeds are more likely to bite and even to inflict severe wounds. Such employees are either trained to handle such cases, or being adults, may leave them alone. But there may come a case where, for example, veterinary employees have never dealt with a particular dog and are actively misled by an owner about its tendencies, or there may be a case involving a “demon dog” (see Lundy, dissent) whose propensities for violence extend far beyond any risk such employees may ever be deemed to assume in their employment. This is not such a case. Accordingly, we find the trial court erred in denying summary judgment to the defendant dog owner in this case.

Judgment reversed.

Pope, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ, concur. Beasley, C. J., and McMurray, P. J, dissent.

Beasley, Chief Judge,

dissenting.

The trial court’s denial of summary judgment should be affirmed in this case in which a caretaker was severely injured by the dog which was being boarded at a veterinary clinic.

The majority concludes that the undisputed facts show that the injured plaintiff assumed the risk of injury from a dog bite and thus cannot prevail in her suit alleging that the dog owner failed to warn plaintiff of the dog’s violent nature and potential danger to persons with whom the dog came into contact.

“ ‘The defense of assumption of the risk presupposes (1) that the plaintiff had some actual knowledge of the danger; (2) that he understood and appreciated the risk therefrom[;] and (3) that he voluntarily exposed himself to such risk.’ [Cit.]” Abee v. Stone Mountain Mem. Assn., 169 Ga. App. 167, 169 (1) (312 SE2d 142) (1983), aff’d, 252 Ga. 465 (314 SE2d 444) (1984).

“The denial of a motion for summary judgment must be affirmed unless the entire record, construed against the movant, [defendant in this case, plaintiff in the quoted case,] reveals no disputed issues of material fact and demonstrates that the movant is entitled to judgment as a matter of law.” Bartja v. Nat. Union Fire Ins. Co. &c., 218 Ga. App. 815, 816 (463 SE2d 358) (1995).

“A person who owns ... a vicious or dangerous animal of any kind and who, by careless management. . ., causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured.” OCGA § 51-2-7.

Kerry Schafer, plaintiff, alleged in her complaint that dog owner Griffiths knew, or should have known, that his dog was violent and potentially dangerous to persons with whom the dog came into contact and that he failed to warn her of the danger. There is evidence that Griffiths knew the dog was dangerous and that he had observed the dog actually bite a dog groomer on the arm six months earlier at a pet center.

There is no evidence that, after the first bite, Griffiths took the steps required for a “potentially dangerous dog” in the Dangerous Dog Control Law. OCGA § 4-8-20 et seq. See OCGA § 4-8-21 (a) (6). The intent of the General Assembly in passing the Act is to provide “that the owner of a dangerous dog or potentially dangerous dog shall be solely liable for any injury to or death of a person caused by such dog.” OCGA § 4-8-30.

There is a dispute of fact about whether there was any notation on the dog’s chart where Schafer worked that the dog “may bite,” but there was no notation that he was dangerous. Plaintiff testified the notation was put on the chart after the incident, by the veterinarian. The veterinarian testified that it was probably put on by one of the receptionists, when Griffiths first brought the dog to be boarded. If it was not there at the time of this incident, whether prompted by the dog owner or originated by an employee of the clinic, then plaintiff was not warned by it.

Thus, whether failure to warn would be “careless management” by the dog owner under the circumstances is a jury question. The failure to warn would also affect the defense of assumption of the risk by plaintiff, because such a defense presupposes actual knowledge of the danger. Abee v. Stone Mountain Mem. Assn., supra.

There is another issue of fact about notice, or knowledge of the danger. In an earlier incident at the clinic, when the staff tried to give the dog vaccine shots, he became agitated and started growling and showing his teeth and jumped off the table, went into a corner, and growled and acted as though he would bite if anyone approached. So they left him alone in the corner until he calmed down, and then the veterinarian put him back in the cage. Plaintiff knew he would show signs of aggression if someone tried to remove his food bowl if there was any food left in it when he stopped after initially eating. But she had taken him out of the cage before this incident at issue, without problem. Relevant to this instant occasion, his collar had been taken off so he could be given a bath and his collar could be cleaned. Plaintiff went in order to help an employee who was not feeling well, a pregnant woman who held an inferior position as a “kennel assistant” (plaintiff was a “vet tech”). The woman had been asked to affix the collar by the veterinarian so the dog would be ready to go home when his owner came after boarding him.

When Schafer went to the back to put the collar on the dog, she opened the big stainless steel dog run where the dog was by himself. The dog jumped out down to the floor and wagged his tail, looking friendly. She told him to stay still, and she stood to the right of his hindquarters. She put her hand on his back and said “stay” and reached the collar around him over his back. In the process he turned around and bit the right side of her face. This all happened within seconds. When she tried to leave, he came after her; she fell, and he bit her at least twice more and was dragging her back into the kennel when help came in the form of Dr. Morgan, the veterinarian, with a broom or mop handle.

Did all of what plaintiff knew, before she attempted the chore, as a matter of law give her actual knowledge, understood and appreciated, that the dog might bite her if she tried to put his collar on? There is no question that the previous incidents of aggression were different. The dog was being subjected to shots in the one instance and to having his food taken away in the other instances. Here he was having his collar, which was usually left on, put back, and he came to plaintiff and acted friendly in the process, up until he suddenly turned his head and bit her. It is a jury question whether she acted reasonably or whether, on the other hand, she assumed the risk of being bitten so that she is precluded from recovery by her own actions as an injured party.

The majority depends entirely on the whole court case of Lundy v. Stuhr, 185 Ga. App. 72 (363 SE2d 343) (1987), in which three judges dissented including this writer. The majority opinion in this instance is authored by the author of the Lundy opinion. There are differences of fact which make this case stronger for the plaintiff, and as the majority states, “Each case depends on its facts.” The law does not impose the defense of assumption of risk in all circumstances on every member of the profession who provides care to domestic animals. Here, accepting plaintiffs evidence, there were no signs or other written warnings about a propensity to bite or knowledge that the dog had the unpredictable disposition, as in Lundy. Also, Lundy did not heed the dog’s approach or calm it but instead moved suddenly and raised his arm. These actions were held to constitute assumption of the risk of injury as a matter of law. Plaintiff Schafer’s knowledge and actions are not comparable.

Plaintiff was merely readying the dog for home in a nonthreatening and calm way, without any hint that he was about to become aggressive. She was not repeating any threatening actions which on earlier occasions had riled him. In fact, he exhibited the opposite on this occasion. The majority is saying, in effect, that she should have refused to put the collar on or should have taken some other unspecified steps before she attempted to put the collar on or should have refused altogether, absent which she assumed the risk of injury as a matter of law.

Decided November 15, 1996

Downey & Cleveland, Y. Kevin Williams, Richard A. Griggs, for appellant.

Douglas J. Davis, James D. Nichols, Jr., Robert H. Speer, Jr., for appellees.

I am authorized to state that Presiding Judge McMurray joins in this dissent.