text:
    A94A0525.
    PARKER v. HOSPITAL AUTHORITY OF THE CITY OF BAINBRIDGE & DECATUR COUNTY.
    (446 SE2d 766)
   Judge Harold R. Banke.

The appellant, Teresa Parker, commenced this medical malpractice action against the Hospital Authority of the City of Bainbridge and Decatur County d/b/a Memorial Hospital and Manor, Dr. James Higginbotham, Dr. John Lonas, and two nurses employed by the hospital, alleging negligent treatment of her son which resulted in his death due to an overdose of Dilantin. During trial in the matter, the court directed a verdict for the hospital authority, Dr. Higginbotham, and one of the nurses. The jury rendered a verdict in favor of the remaining defendants, and this appeal followed.

On November 6, 1990, after suffering a seizure at school, the appellant’s son was transported to the emergency room at Bainbridge Memorial Hospital, where he was first treated by Dr. Higginbotham. At Dr. Higginbotham’s request, Dr. Lonas came to the emergency room and took charge of the child’s treatment.

After Dr. Lonas initiated a regimen of Dilantin, the child went into cardiac arrest. CPR efforts revived him, but he never regained consciousness and died 12 days later. On the child’s death certificate, the medical examiner indicated Dilantin overdose as the cause of death, but that conclusion was based on the medical history, and not the objective autopsy findings.

1. The appellant contends that the trial court erred in refusing to exclude for cause two potential jurors, one of whom was related to a member of the hospital board and one of whom indicated that he may have some difficulty hearing the testimony. We find no abuse of discretion.

“Relationship to an employee of a corporation does not in this State render a juror incompetent, as a matter of law, to serve on the trial of a case in which the corporation is a party.” (Citations and punctuation omitted.) Wilson v. Atlantic Coast Line R. Co., 116 Ga. App. 193 (156 SE2d 463) (1967). See also Pheil v. Southern Bell Tel. &c. Co., 201 Ga. App. 846 (1) (412 SE2d 609) (1991). Similarly, we conclude that one’s relationship to a board member of an entity that is a party to an action does not, as a matter of law, disqualify him to serve as a juror in the case.

With regard to the juror who indicated that he had a hearing deficit, counsel for the appellant merely stated that he had “no objection to the court excusing him if the court desires to do that because of his inability to hear the evidence. . . .” However, when the trial court observed that the juror apparently had understood all the questions during voir dire, counsel raised no objection. That failure to object to the juror’s qualification waived any such objection. Blanken ship v. State, 258 Ga. 43 (2) (365 SE2d 265) (1988).

2. The appellant also contends that the trial court erred in directing a verdict for Dr. Higginbotham and the hospital authority.

It was uncontroverted that although Dr. Higginbotham was the first doctor to see the appellant’s child, Dr. Lonas assumed control of the child’s care and prescribed the Dilantin. After Dr. Lonas took charge of the case, Dr. Higginbotham only monitored the child’s respiratory distress, and the appellant’s own expert witness was unable to connect that treatment for respiratory distress to the child’s death. The appellant having thus failed to establish that Dr. Higginbotham’s limited treatment of the child proximately caused the child’s death, the trial court properly directed a verdict for Dr. Higginbotham.

The only asserted basis for the hospital authority’s liability was that of respondeat superior, with regard to the acts of the nurse who administered the Dilantin and the acts of Dr. Lonas, who had staff privileges at the hospital. “A hospital owes a duty of reasonable care to its patients and is liable for the injuries negligently inflicted upon its patients by the nurses and other employees of the hospital. [Cit.]” Hoffman v. Wells, 260 Ga. 588, 589 (2) (397 SE2d 696) (1990). However, “[i]f a master lends his servants to another then the master is not responsible for any negligence of the servant committed within the scope of his employment by the other.” Id.

In the instant case, the nurse administered the Dilantin and assisted with the care of the appellant’s child at the express direction of Dr. Lonas. Under such circumstances, the nurse constituted a “borrowed servant” of Dr. Lonas, and the hospital authority would not be liable for those acts of the nurse involving professional skill and judgment that were done pursuant to Dr. Lonas’s instructions. Swindell v. St. Joseph’s Hosp., 161 Ga. App. 290 (1) (291 SE2d 1) (1982). Accord Ross v. Chatham County Hosp. Auth., 258 Ga. 234 (1) (367 SE2d 793) (1988).

In order for the hospital authority to be liable for the acts of Dr. Lonas, “it must be shown that the doctor was an employee of the hospital and not an independent contractor.” Ga. Osteopathic Hosp. v. Hollingsworth, 242 Ga. 522 (250 SE2d 433) (1978); Axon v. Humana Hosp., 203 Ga. App. 161, 162 (416 SE2d 800) (1992). In this regard, the appellant contends that Dr. Lonas’s obligation to respond when called to the hospital established a factual issue as to whether the doctor was an employee. However, it was undisputed that the hospital exercised no control over Dr. Lonas’s method and manner of treating the appellant’s child. The fact that Dr. Lonas was on call because of his hospital staff privileges did not controvert the evidence of his independent contractor status, and the trial court also properly directed a verdict for the hospital authority.

3. In its instructions to the jury, the trial court included two charges requested by Dr. Lonas, stating that a doctor is not an insurer of the treatment rendered, and that an unfavorable result does not raise a presumption of lack of proper care, skill, or diligence on the part of the doctor. The appellant contends that those charges were improper and confused the jury, inasmuch as Dr. Lonas admitted that he had deviated from the applicable standard of care by prescribing too much Dilantin.

Decided July 12, 1994

Reconsideration denied July 25, 1994

Gilbert J. Murrah, for appellant.

However, in addition to Dr. Lonas’s admission, counsel for both the appellant and Dr. Lonas reminded the jury of that admission during closing argument. Under these circumstances, there was no reasonable likelihood that the jury was confused by the jury charge, and any error in giving the instruction was harmless. Packer v. Gill, 193 Ga. App. 388 (1) (388 SE2d 338) (1989).

4. The trial court allowed two counsel for Dr. Lonas to split the closing argument, and the appellant contends that such procedure violated OCGA § 9-10-182. That Code section “has been interpreted to limit participation in the closing argument to one counsel per party. [Cits.]” Bridges v. Schier, 195 Ga. App. 583, 585 (7) (394 SE2d 408) (1990). However, other than making a general claim that she lost the case because of the allowed argument, “[t]he plaintiff has not suggested how [she] was harmed by the fact that two attorneys made closing arguments for the defendant, and since plaintiff’s counsel had the concluding argument, we are unable to perceive how this could have been harmful to [her].” Id. at 585-586.

5. Lastly, the appellant contends that the trial court should have granted a new trial because the jury’s verdict was contrary to the overwhelming weight of the evidence, particularly Dr. Lonas’s admission regarding the Dilantin overdose. However, despite that admission, Dr. Lonas disputed any causal connection between the Dilantin overdose and the child’s death, and the autopsy itself provided no forensic basis for concluding that the child’s death resulted from an overdose of Dilantin. Dr. Lonas also testified about other possible causes of the child’s death, such as the seizure activity and respiratory failure related to the aspiration of vomitus. This evidence supported the jury’s finding that Dr. Lonas’s acts did not proximately cause the child’s death, and the trial court thus properly denied the appellant’s motion for new trial. Tahamtan v. Tahamtan, 204 Ga. App. 680 (7) (420 SE2d 363) (1992).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Smith & Perry, Ralph C. Smith, Jr., Alston & Bird, Theodore E. G. Pound, Alexander & Vann, William U. Norwood III, Tillman, McTier, Coleman, Talley, Newbern & Kurrie, Wade H. Coleman, Edward F. Preston, for appellee.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A94A0548.
    CHAMBERS v. THE STATE.
    (446 SE2d 769)
    Decided July 12, 1994
    Reconsideration denied July 25, 1994.

      Robert L. Waller III, Manchel, Johnson & Wiggins, Howard J. Manchel, for appellant.

      Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Assistant Solicitor, for appellee.
   Judge Harold R. Banke.

The appellant, William R. Chambers, Jr., was convicted of driving under the influence of alcohol and failure to maintain lane. His sole contention on appeal is that the trial court erred in admitting evidence of two prior convictions for driving under the influence of alcohol.

This court has previously determined that prior acts of driving under the influence are relevant to prove bent of mind or course of conduct. Kirkland v. State, 206 Ga. App. 27 (3) (424 SE2d 638) (1992). In the instant case, the trial court admitted the evidence of similar transactions for those specific purposes, and we find no error.

The appellant also complains that the trial court failed to balance the probative value of the similar transactions evidence against the prejudice it created. However, immediately before admitting the evidence, the trial court acknowledged that in order for the evidence to be admissible, its probative value must outweigh its prejudicial effect. Accordingly, “[t]he determination that such evidence is more probative than prejudicial is implicit in the trial court’s determination that the similar transactions are substantially relevant for an appropriate purpose.” Evans v. State, 209 Ga. App. 606, 607 (2) (434 SE2d 148) (1993).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A94A1876.
    KAPPERS v. DeKALB COUNTY BOARD OF HEALTH.
    (446 SE2d 794)
   McMurray, Presiding Judge.

The DeKalb County Board of Health (“the Board”) filed a petition pursuant to OCGA § 31-14-2 for the isolation and involuntary outpatient treatment of John Kappers (defendant), alleging defendant has contagious tuberculosis but refuses to comply with a treatment plan promulgated by the Board. After a hearing, the trial court determined that defendant “is conducting himself so as to expose other persons to danger of infection of tuberculosis, after having been directed by the Board to comply with treatment . . .” and that his “actions constitute a danger to himself and to the public health. . . .” The trial court ordered defendant to comply with the Board’s plan of treatment. This treatment included immediate respiratory isolation, which “means that [defendant] should not leave the immediate area of [his] home except as required for medical care directed by [his] physician.” Also, the plan directed defendant to wear a particulate respirator mask while in the presence of others. Respiratory isolation would continue “until [his] sputum cultures are consistently negative for Mycobacterium tuberculosis and a reevaluation determines that [he] no longer [has] infectious tuberculosis.” Defendant appealed the trial court’s order to the Supreme Court of Georgia which transferred the case to the Court of Appeals. Held:

The Board has filed a motion in this court to dismiss the appeal on the ground that the issues raised by the grant of the Board’s petition for involuntary isolation and treatment have been rendered moot. “Under the Appellate Practice Act, the dismissal of an appeal is mandatory for the three specific instances contained in subsection (b) of OCGA § 5-6-48, Young v. Climatrol Southeast Dist. Corp., 237 Ga. 53, 55 (226 SE2d 737) (1976), one of which is ‘(3) Where the questions presented have become moot.’ ‘A moot case is one which seeks to determine an abstract question which does not arise upon existing facts or rights.’ (Emphasis supplied.) Black’s Law Dict. (Revd. 4th ed.). ‘Gober v. Colonial Pipeline Co., 228 Ga. 668, 670 (187 SE2d 275) (1972), held: “This court will upon its own motion dismiss an appeal where it affirmatively appears that... a decision would be of no benefit to the complaining party. Mooney v. Mooney, 200 Ga. 395 (37 SE2d 195) . . . The fact that . . . appellants might possibly derive some future benefit from a favorable adjudication on an abstract question . . . will not require this court to retain and decide the case. Abernathy v. Dorsey, 189 Ga. 72 (5 SE2d 39).” ’ Nat. Council of Jewish Women v. Cobb County, 247 Ga. 198 (275 SE2d 315) (1981) and cits.; Goodyear v. Trust Co. Bank, 247 Ga. 281 (1) (276 SE2d 30) (1981). ... Of course, a case may be moot, but, because the [alleged] error is capable of repetition and yet evades review, the appeal will be considered. . . . [Cits.]” (Emphasis in original.) Chastain v. Baker, 255 Ga. 432, 433 (339 SE2d 241). An appellate court has a right to hear and consider evidence outside of the record as transmitted from the court below that an appeal is moot. The Atlanta &c. R. Co. v. Blanton, 80 Ga. 563, 565 (1) (6 SE 584). Where, “in response to the motion to dismiss, the [appellant] either admits the existence of the fact as claimed by the [appellee], or fails to deny the existence of the same, the [appeal] will be dismissed. But when the existence of the fact is in any way denied, either by affidavit of the party or his counsel, or by statement of counsel in open court, the motion to dismiss will be overruled.” Tuells v. Torras, 113 Ga. 691, 692 (1), 693 (39 SE 455). Stipulations in brief or in open court as to the existence of facts indicating mootness are treated as solemn admissions in judicio. Froelich v. State, 210 Ga. App. 647, 648, fn. 1 (437 SE2d 358).

In the case sub judice, the Board submitted the affidavit of Lawrence L. Sanders, M.D., the Deputy Director of the DeKalb County Board of Health. Dr. Sanders deposed that on May 17, 1994, the Board received the third consecutive negative culture of defendant’s sputum and on May 18, 1994, he informed defendant that the respiratory isolation previously imposed was “no longer required as part of [defendant’s] outpatient treatment plan. . . .’’In the brief in opposition to the Board’s motion, defendant’s counsel concede that the Board “unilaterally lifted [defendant’s] home confinement, but [defendant continues] to pursue his appeal on the grounds that his confinement [is] ‘capable of repetition yet evading review.’ ” Since it is undisputed that defendant is no longer subject to involuntary respiratory isolation, a reversal by this court of the trial court’s grant of coercive relief would be of no practical benefit to defendant such that the issues raised in this appeal are rendered moot. See Baker v. State, 240 Ga. 431 (241 SE2d 187). See also Cagle v. PMC Dev. Co. of Ga., 233 Ga. 583 (212 SE2d 765). Contrary to defendant’s arguments, “we find this action does not fall within that class of cases which would inevitably evade review.” Mulling v. Wilson, 245 Ga. 773, 775 (267 SE2d 212). Compare In re Jane Doe, 262 Ga. 389 (418 SE2d 3). This court “will not retain jurisdiction of a moot case to consider basic legal questions even though the appellant ‘might derive some benefit in future litigation from a favorable adjudication of the question. (Cits.)’ Berrie v. Baucknecht, 224 Ga. 432, 433 (162 SE2d 317).” Atlanta Gas Light Co. v. Ga. Pub. Svc. Comm., 206 Ga. App. 315, 317 (425 SE2d 340). This “appeal is accordingly dismissed as moot.” Brown v. Taylor, 193 Ga. App. 134, 135 (387 SE2d 25).

Appeal dismissed.

Pope, C. J., and Smith, J., concur.

Decided July 25, 1994.

Milton D. Rowan, Rose H. Nathan, Gerald R. Weber, Jr., for appellant.

Jonathan A. Weintraub, Lisa F. Stuckey, Joan F. Roach, for ap-pellee.


author: Judge Harold R. Banke. Blackburn, Judge,

text:
    A94A0228.
    THE STATE v. SLATER.
    (446 SE2d 771)
   Judge Harold R. Banke.

Defendant was indicted for the offenses of trafficking in cocaine, possession of cocaine with intent to distribute, and possession of a firearm during the commission of a crime. The cocaine and firearm were seized from defendant’s vehicle as a result of a search which took place after a traffic stop. Defendant filed a motion to suppress evidence which was granted by the trial court on May 21, 1992. In its order, the trial court held that although defendant committed a traffic violation, the traffic stop of defendant by the police officer was pretextual, and that the consent obtained from defendant was tainted by the unreasonably pretextual stop and was not sufficiently attenuated by a lapse of time or intervening circumstances.

The State appealed the trial court’s granting of the motion to suppress to this court, and we reversed, holding the traffic stop of defendant was not pretextual because “[t]he stop was clearly predicated upon the undisputed fact that Slater was violating the traffic laws of this state.” State v. Slater, 207 Ga. App. 669, 670 (428 SE2d 676) (1993) (“Slater 7”). No motion for reconsideration was filed by defendant in Slater I following our reversal.

Upon return of the remittitur, defendant filed a motion for reconsideration of the motion to suppress in the trial court. After hearing no new evidence on this motion, the trial court issued a second order on September 28, 1993, again granting defendant’s motion to suppress. In this second order the trial court found that defendant had committed no traffic violation, and the police officer’s stop of defendant was pretextual. The State now appeals the trial court’s second order granting defendant’s motion to suppress evidence.

Citing State v. Marcus, 206 Ga. App. 385 (1) (425 SE2d 351) (1992), defendant contends that a trial court has the right to reconsider a motion to suppress evidence where the. “goal is to secure the ends of justice . . . [if] . . . intervening matters, whatever they may be, have cast doubt on previous rulings on the issue of suppression.” Marcus at 386. In this case, defendant argues, the intervening matter was the trial court’s decision to reinterpret the testimony presented at the original hearing and conclude that the police officer was not engaged in a valid traffic stop.

However, defendant’s reliance on Marcus and other cases cited in his brief is misplaced. These cases involve a trial court’s reconsideration of a suppression motion before the trial court’s ruling has been reviewed by this court on appeal. In the present case, the trial court reconsidered defendant’s motion to suppress evidence after the trial court’s original order granting defendant’s motion to suppress evidence had been reviewed by this court and we had determined as a matter of law that the traffic stop was not pretextual. Slater at 670. Notwithstanding our reversal of the trial court’s original granting of defendant’s motion to suppress evidence, the trial court once again issued a suppression order on the very same issue that had been before this court on appeal. Because this issue has been appealed and decided adversely to defendant in Slater I, relitigation of this very same issue is precluded by res judicata. Camp v. State, 181 Ga. App. 714 (1) (353 SE2d 832) (1987). See also Blalock v. State, 201 Ga. App. 461 (411 SE2d 914) (1991). “It is axiomatic that the same issue cannot be relitigated ad infinitum. [Cit.]” Horton v. State, 189 Ga. App. 370 (375 SE2d 668) (1988). See also Stirling v. State, 199 Ga. App. 877 (406 SE2d 282) (1991). Accordingly, the trial court erred in reconsidering defendant’s motion to suppress evidence.

Judgment reversed.

Birdsong, P. J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

In light of our Supreme Court’s recent opinion in Tate v. State, 264 Ga. 53 (440 SE2d 646) (1994), and the findings of the trial court in State v. Slater, 207 Ga. App. 669 (428 SE2d 676) (1993), this court should affirm the trial court’s granting of the defendant’s motion to suppress. However, I am forced to recognize that, procedurally, this issue is not before us.

The facts in Tate are virtually identical to those in the case at bar, and the facts in both cases are summarized by Judge Richard S. Gault of the Cherokee County Superior Court in his original orders granting the motions to suppress. In both cases, the defendants were stopped while driving north on 1-75 in Cherokee County, Georgia. Officers Bishop and Shields, the leading drug officers of their force, were involved in the stops, and at the time of the stops, both officers had drug detection dogs in their patrol vehicles. Both defendants were traveling at night and were stopped allegedly for weaving and tag light violations. A review of the ten “traffic” stops, on 1-75, approximately two miles of which runs through Cherokee County, on the videotape which is contained in the record, reveals that eight of the ten involved out-of-state vehicles and five of the ten drivers were given warnings. For no apparent reason, there were requests to search three of the vehicles at the conclusion of the traffic stops. On two stops, it was apparent that the videotape had been altered to delete material. On those stops which include deletions, the tapes stop in mid-sentence with both the officer and detainee in front of the vehicle, which could, under these circumstances, only have occurred as a result of a subsequent modification of the tape, which was in the officer’s possession. A pattern of stopping out-of-state vehicles is obvious. Also, none of the videos include a recording of the alleged conduct which justified the initial stop, and all filming begins after the vehicles are stopped.

The. evidence clearly supports the trial court’s conclusion that the subject stop was pretextual. All pretextual stops, by definition, have the appearance of being valid. If they did not, they would not be pretextual, they would simply be illegal. At the conclusion of the “traffic stop” and for no apparent reason, Slater was asked for consent to search his vehicle. The trial court found that the “consent” given by Slater was tainted and was not voluntary.

As stated by our Supreme Court in Tate, “[w]hen an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge ‘hears the evidence and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.’ Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.” (Citations and punctuation omitted.) 264 Ga. 54.

In the case at bar, “[t]he trial court addressed the question of whether the deputy stopped [Slater] for a traffic violation or to investigate a potential traffic violation, and stated that whether he did or did not was a question of credibility. The trial court then resolved the issue adverse to the deputy’s testimony. Credibility of witnesses and the weight to be given their testimony is a decision-making power that lies solely with the [judge when he sits as] the trier of fact. The [judge as the] trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony. State v. Betsill, 144 Ga. App. 267 (240 SE2d 781) (1977).” (Footnote omitted.) Tate, 264 Ga. at 56.

Decided July 14, 1994

Reconsideration denied July 26, 1994

Garry T. Moss, District Attorney, Gregory A. Hicks, Assistant District Attorney, for appellant.

David L. Cannon, for appellee.

As in Tate, the trial court here found that there was evidence that the officer’s testimony was not credible as to whether Slater committed a traffic violation. It was within the trial court’s province to make such a determination and this finding must be accepted unless clearly erroneous. Woodruff v. State, 233 Ga. 840, 844 (213 SE2d 689) (1975). Following the reasoning of our Supreme Court in Tate, the facts as found by the trial court in the instant case support the determination that the stop of Slater was pretextual and would not have been made by a reasonable officer in the absence of an invalid purpose. See 264 Ga. at 57.

The trial court correctly concluded that the consent obtained from Slater was tainted by the unreasonable pretextual traffic stop and was not sufficiently attenuated by a lapse of time or intervening circumstances. See Brown v. State, 188 Ga. App. 184, 187 (372 SE2d 514) (1988). Accordingly, the trial court’s orders granting Slater’s motion to suppress should be affirmed.

Recognizing that our decision in State v. Slater, 207 Ga. App. 669, supra was incorrect, it is unfortunate that the defendant failed to follow the correct procedures to appeal that decision. I am also frustrated that there exists no procedure by which this court can correct its own errors in a specific case, absent motions by the parties. As the trial court stated in its order, the ends of justice required that defendant’s motion to suppress be granted.

       The summary of the facts in Tate is completely set out in our opinion in that case at State v. Tate, 208 Ga. App. 117, 118-120 (430 SE2d 9) (1993), rev’d 264 Ga. 53, supra.

       Indeed, on remand, in its second order granting Slater’s motion to suppress, the trial court specifically found “there was no traffic violation by the defendant in this case.”


text:
    A94A0612.
    AUTOMATED DRAWING SYSTEMS, INC. v. INTEGRATED NETWORK SERVICES, INC. et al.
    (447 SE2d 109)
   Judge Harold R. Banke.

The appellees, Integrated Network Services, Inc. (“INS”) and DLM Enterprises, Inc. (“DLM”), brought suit against the appellant, Automated Drawing Systems, Inc. (“ADS”), for breach of an agreement to license a computer software program known as the D4 SOFTWARE program developed by the appellees. Alleging that ADS had violated an exclusive license to copy and sell the D4 SOFTWARE program in conjunction with a software program to be sold as the ADS PACKAGE, by marketing and selling the software programs without paying royalties due under the agreement, the appellees asserted claims for breach of contract and intentional tort based on fraud, theft by deception, and unjust enrichment through copyright infringement.

Following trial in the matter, the jury returned a general verdict in favor of the appellees for $108,000, plus $12,500 punitive damages. This appeal follows the denial of the appellant’s motions to review certain evidence submitted to the jury, and for judgment n.o.v. or new trial.

1. The appellant attacks, on several grounds, the sufficiency of the evidence to support the verdict. None of the grounds asserted has any merit.

The licensing agreement provided that ADS would pay the appel-lees a royalty fee of $1,500 for each copy it sold of the ADS PACKAGE software program utilizing the appellees’ exclusive D4 SOFTWARE source code as a component. The appellant argues that the evidence showed that the appellees had been paid for 53 out of 65 ADS PACKAGE sales made, which entitled them to only $18,000 in additional royalties. There was evidence that actually a total of 125 programs were sold, but the appellant denied liability for any royalties on those other sales because it had to modify the software to make it fully operational.

However, the agreement specified that ADS was to have no rights or access to the source code unless the appellees were unable to assist with maintenance or any problems that occurred; there was no provision permitting ADS to copy, modify or amend the program. Under these circumstances, the jury was authorized to find that ADS intentionally appropriated the appellees’ source code to its own use by copying, modifying or altering it, in whole or in part, and in subsequently duplicating and selling its own software program derived from the appellees’ program. Accordingly, the trial court did not err in refusing to disturb the verdict. See Rodriguez v. Davis, 202 Ga. App. 550 (3) (415 SE2d 41) (1992). This evidence of misappropriation of the software and withholding of royalties also authorized the award for damages in tort consistent with OCGA § 16-9-93 (g) and for punitive damages. OCGA § 51-12-5.1 (b).

The appellant is mistaken in its contention that the evidence failed to establish a violation of the Georgia Computer Systems Protection Act, OCGA § 16-9-90 et seq., on the ground that the Act requires an actual physical invasion of a computer. In listing the types of property protected by the Act, OCGA § 16-9-92 (7) specifically includes computer programs.

2. The appellant also contends that the judgment should be set aside because the only duty arising independent of the contract was one of copyright interest, for which the federal courts have exclusive jurisdiction under 17 USCA § 301. However, federal copyright law does not preempt any rights or remedies under the common law or state statutes that are not equivalent to any of the exclusive rights within the general scope of copyrights. See CMAX/Cleveland v. UCR, 804 FSupp. 337, 358 (M.D. Ga. 1992). In the instant case, common law and the Georgia Computer Systems Protection Act provide remedies for the breach of the licensing agreement and tortious misappropriation of the appellees’ software program, and those remedies are not the equivalent of any exclusive right within the general scope of copyright law.

3. The appellant complains that the trial court violated the parol evidence rule by allowing a witness to testify about matters outside the scope of the written agreement between the parties. However, the appellant has not indicated exactly what that objectionable testimony was, or what harm resulted. “Both error and harm must be shown affirmatively by the record before appellate relief is mandated.” Oglethorpe Power v. Sheriff, 210 Ga. App. 299, 302 (4) (436 SE2d 14) (1993).

4. Lastly, the appellant contends that the trial court erred in denying its motion to review information contained in two computer disks entered in evidence over objection. These disks demonstrated the difference between the appellees’ source code and the changes and modifications made by the appellant, and the jury was permitted to review them on the computer during deliberations. The appellant urges that it was denied the benefit of re-evaluating evidence upon which the jury based its verdict, which was necessary for the preparation of post-trial motions and appeal.

However, it appears from the transcript of the proceedings that the appellant had ample opportunity during the three-day trial to obtain from the disks whatever’ information it deemed pertinent to its defense. A trial court has a wide discretion in regulating the business of the court, Brown v. Southern Aggregates Co., 207 Ga. App. 886 (1) (429 SE2d 294) (1993), and we find no abuse of that discretion in denying the appellant further access to the disks.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided July 12, 1994

Reconsideration denied July 26, 1994

Rich, Bass, Kidd & Witcher, Merck R. Smith, for appellant.

Billy R. Smith, for appellees.


text:
    A94A0715.
    DIXIE TEXTILE WASTE COMPANY v. OGLETHORPE POWER CORPORATION.
    (447 SE2d 328)
   Judge Harold R. Banke.

Oglethorpe Power Corporation filed a petition to condemn an easement on land owned by the appellant, Dixie Textile Waste Company, for the installation of an electric power line. A special master awarded the appellant $3,326.40 as the fair market value of the condemned property. The appellant appealed to the superior court, challenging the special master’s finding as to the property’s value, and the jury awarded the appellant $9,000. This appeal followed.

1. The appellant contends the trial court erred in excluding expert testimony regarding the public fear of electric power lines and electromagnetic fields and their impact on property values. The trial court excluded testimony regarding public fears, as speculative and based on hearsay, but the appellant was able to introduce objective evidence showing variations in sales prices in property located adjacent to electrical power lines.

“ ‘In determining the market value of land, due consideration should be given to “all the elements reasonably affecting value.” [Cit.]’ [Cit.]” Fulton County v. Morton, 196 Ga. App. 334, 335 (2) (396 SE2d 65) (1990). However, “the question of damages cannot be left [up] to speculation, conjecture and guesswork. [Cit.]” Dept. of Transp. v. Bird, 158 Ga. App. 369, 370 (280 SE2d 394) (1981). “Potential danger of an electric power line in close proximity to dwellings does have a material connection to the market value of adjacent land, but this must be ascertained by objective means, not by hearsay evidence.” Weaver v. Ga. Power Co., 134 Ga. App. 696, 697 (2) (215 SE2d 503) (1975), rev’d on other grounds, Merritt v. Dept. of Transp., 147 Ga. App. 316, 319 (3) (248 SE2d 689) (1978), rev’d on other grounds, 243 Ga. 52 (252 SE2d 508) (1979).

In the instant case, the appellant sought to introduce expert testimony regarding the public’s fear of electrical power lines based on what the witnesses heard other people say about property adjacent to electrical power lines. Not only was this testimony properly excluded as hearsay, but the appellant failed to demonstrate how the impact of general, public fear on its remaining property could be calculated with a reasonable degree of certainty. See Merritt v. Dept. of Transp., supra at 320.

2. We find no error in the trial court’s denial of the appellant’s motion for a mistrial based on opposing counsel’s reference to the property’s tax appraisal in his cross-examination of the appellant’s president. Counsel for the appellant objected to the question immediately after it was asked and moved for a mistrial. The court denied the motion and instructed the jury to disregard the amount to which counsel referred. “The trial court has broad discretion in ruling on motions for mistrial. [Cit.]” Dept. of Transp. v. .590 Acres of Land & Bryan, 174 Ga. App. 589, 592 (3) (330 SE2d 738) (1985). Counsel’s reference was arguably improper but, under the circumstances, harmless since the witness indicated in subsequent testimony some reliance on the appraisal in forming his opinion as to the value of the property.

3. The appellant contends that the testimony of the appellee’s rebuttal witness was remote, speculative, without probative value and highly prejudicial, and that the court erred in failing either to grant a mistrial or strike her testimony.

The record shows that the appellant offered evidence regarding the negative effect of adjacent power lines on the sale of lots in a Cherokee County subdivision. The rebuttal witness testified about her contrary findings regarding the sale of homes with adjacent power lines in the same subdivision. Thus, the testimony was admissible as relevant and competent rebuttal evidence, with its weight to be determined by the jury. See generally Merritt v. Dept. of Transp., supra at 319.

We also do not find that the trial court abused its discretion in failing to grant a mistrial upon discovering there was inadvertent contact between this witness and the jury after completion of her testimony.

4. In regard to the admission of evidence regarding a local distribution line already present on a portion of the condemned property, we have previously held that “[t]he condition of land at the time of taking is relevant evidence in a condemnation case as it bears directly on the jury’s function of determining its value.” Hill v. Dixie Pipeline Co., 120 Ga. App. 82, 84 (3) (169 SE2d 656) (1969).

5. The appellant also argues that the court erred in allowing the appellee’s expert to testify that the easement was not large enough to accommodate electrical towers because the evidence had the effect of misleading the jury as to the scope of the condemnation. We disagree. The evidence was relevant to the question of the appellee’s use of the easement after condemnation and the detriment to the appellant as the landowner.

Decided July 12, 1994

Reconsideration denied July 26, 1994

Howell & Whiting, James S. S. Howell, for appellant.

Stewart, Melvin & House, Frank W. Armstrong III, E. Pennington Gilbert, for appellee.

Troutman Sanders, Donald W. Janney, Joan B. Cravey, amici curiae.

Any error occasioned by the admission, over objection, of the expert’s testimony regarding the uses employed by other landowners within power line rights-of-way was harmless.

6. The appellant contends the court erred in excluding the testimony of a lay witness regarding the consequential damages to the remainder. The record shows that the court initially ruled that the witness could not testify regarding the diminution in property values due to power lines, without laying a proper foundation. However, after a lengthy discussion outside the presence of the jury, the witness was allowed to testify, without a foundation, that the presence of the power line damaged the property. Thus, this enumeration is without merit.

7. Finally, the appellant asserts the general grounds. Having reviewed the evidence in its entirety, we conclude there is sufficient evidence to support the verdict.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Beasley, Presiding Judge.

text:
    A93A0322.
    THE STATE v. VANSANT.
    (447 SE2d 348)
   Beasley, Presiding Judge.

On certiorari, the Supreme Court has reversed our holding in Division 1 of State v. Vansant, 208 Ga. App. 772 (431 SE2d 708) (1993), which was that the superior court erred in granting Vansant’s motion to suppress. See Vansant v. State, 264 Ga. 319 (2) (443 SE2d 474) (1994). However, the Supreme Court has affirmed our holding in Division 2 that the trial court erred in entering a judgment of acquittal after granting the motion to suppress. Id. at (3). Accordingly, our decision is vacated with respect to Division 1 and the judgment, the judgment of the Supreme Court is made the judgment of this court, and the trial court’s judgment is affirmed in part and reversed in part.

Judgment affirmed in part and reversed in part.

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

Decided July 26, 1994.

Britt R. Priddy, District Attorney, B. Martin First, Assistant District Attorney, for appellant.

Richard L. Hodge, Vansant, Corriere, McClure & Dasher, K. Alan Dasher, for appellee.


text:
    A93A0472.
    ALFORD v. STATE OF GEORGIA.
    (447 SE2d 347)
    Decided July 26, 1994.

      Guy J. Notte & Associates, Guy J. Notte, for appellant.

      W. Fletcher Sams, District Attorney, Sharon J. Law, Lance K. Hiltbrand, F. Maxwell Wood, for appellee.
   Beasley, Presiding Judge.

On certiorari, the Supreme Court reversed our holding in Alford v. State, 208 Ga. App. 595 (431 SE2d 393) (1993), which was that the superior court erred in denying Alford’s motion to dismiss the State’s complaint in this drug forfeiture proceeding. See State of Ga. v. Alford, 264 Ga. 243, 245 (2b) (444 SE2d 76) (1994). However, the Supreme Court affirmed our holding that the superior court erred in dismissing Alford’s amended answer, and the Court directed that the case be remanded so that Alford may be granted a reasonable time in which to file a second amended answer in compliance with OCGA § 16-13-49 (o) (3). Id. at (3). Accordingly, our decision is vacated to the extent it conflicts with that of the Supreme Court, the judgment of the Supreme Court is made the judgment of this court, and the trial court’s judgment is affirmed in part and reversed in part and remanded with direction.

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

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


author: Pope, Chief Judge.

text:
    A94A1453.
    DUNAWAY v. THE STATE.
    (447 SE2d 153)
   Pope, Chief Judge.

Defendant was convicted by a jury of burglary.

The State presented evidence that William Frank Moore, the owner of an old barn in which antiques were stored, noticed one morning that someone had broken into the barn and moved some furniture near a door. Moore returned that night and hid in a nearby building from which he could view the barn. Although Moore saw nothing all night, at approximately 6:00 the next morning he saw defendant drive up and go around the back of the barn in his pickup truck. Moore waited a few minutes and then went behind the barn, where he saw defendant standing by the tailgate of his truck, facing away from him. Moore said the truck was near the building and defendant appeared to be trying to lower the tailgate. Moore noted, however, that the tailgate was not positioned near the door to the barn.

Moore, who was holding a pistol, told defendant to “Hold it right there, fellow.” Defendant ran to the door of his truck and got in, at which point Moore started shooting at him. Defendant drove off and the shots continued, but defendant was apparently not hit. Defendant’s truck ran into a nearby ditch, however, and the police were able to trace him from his vehicle.

When an investigator from the Columbia County Sheriff’s Department arrived, Moore went into the barn with him. There they found a plumber’s hammer and an electric screwdriver which were not Moore’s and were not there when Moore was at the barn on Saturday. The investigator testified that the tools were expensive, but not unique.

At the investigator’s request, defendant went to the sheriff’s office to be interviewed. Prior to or during the interview, the investigator had the tools found in the barn placed in defendant’s truck. The investigator then took defendant outside to his truck and asked defendant if various items in the truck, including the tools, were his. Defendant answered yes.

Defendant testified at trial that he was driving along the road and pulled in behind the barn to urinate and put water in his radiator. He explained that he was handcuffed and upset when he was asked about the tools in his truck and was simply saying yes, everything in his truck was his. Defendant stated that he had tools similar to those the investigator found in the barn and placed in his truck, but his were marked with his initials and/or social security number; defendant presented these similar tools as evidence at trial.

1. Defendant argues that the trial court erred in denying his written request to charge the jury on when a conviction may be had on circumstantial evidence. See OCGA § 24-4-6. We agree. Whenever the State introduces circumstantial evidence of a defendant’s guilt, OCGA § 24-4-6 must be charged if the defendant requests it. Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994). See also Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991) (charge must be given upon request if State’s case depends on circumstantial evidence).

Decided July 26, 1994.

Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, William C. Davison, Assistant District Attorneys, for appellee.

Moreover, we cannot say this error is harmless because the evidence against defendant was not overwhelming. Compare Johnson v. State, 210 Ga. App. 99 (1) (435 SE2d 458) (1993). Defendant presented an alternative hypothesis to explain his presence at the barn as well as a plausible explanation for his identification of the tools as his own. Accordingly, the judgment below must be reversed.

2. Defendant’s remaining enumerations of error are without merit.

Judgment reversed.

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


author: Blackburn, Judge.

text:
    A94A1654.
    STACEY v. THE STATE.
    (447 SE2d 339)
   Blackburn, Judge.

Raymond Allen Stacey appeals his conviction as a habitual violator defined under OCGA § 40-5-58.

1. In his first enumeration of error, Stacey contends the trial court erred in denying his motion for new trial in that a fatal variance existed between the allegations of the indictment and the evidence adduced at trial. The indictment charged, in pertinent part, that Stacey “after having been declared to be a habitual violator by the Georgia Department of Public Safety, did operate a motor vehicle on Blandburg Road.” At trial, two witnesses identified Stacey as the driver of a vehicle leaving the Amoco station on Highway 27, and two witnesses identified Stacey as the person they found in the driver’s seat of a vehicle which was wrecked in a ditch off of Blandburg Road. Stacey told the witnesses he was alright and that his friends had gone to get help.

Stacey argues the indictment set out his offense in a particular way, i.e., that he operated a motor vehicle on Blandburg Road, and that the State failed to present any evidence that he so operated a vehicle. Stacey’s reliance on Walker v. State, 146 Ga. App. 237 (1) (246 SE2d 206) (1978) is misplaced. In Walker, the defendant was charged with theft by taking for unlawfully taking tools left in a car he was repossessing for a bank. The trial court directed a verdict on the charge of motor vehicle theft because Walker was in lawful possession of the car as the repossessing agent of the bank. Therefore, the manner of the theft of the tools was lawful possession with unlawful appropriation, rather than unlawful taking, and we reversed Walker’s conviction of unlawful taking. Id.

“Our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantive rights of the accused. It is the underlying reasons for the rule which much be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense.” (Citations and punctuation omitted.) Denson v. State, 212 Ga. App. 883, 884 (443 SE2d 300) (1994). The elements of the crime charged in the present case do not include any specific location in which the habitual violator operates a motor vehicle. Therefore, the location alleged in the indictment, with the exception of the county, is immaterial and pure surplusage. See Nesmith v. State, 183 Ga. App. 529, 530-531 (359 SE2d 421) (1987).

2. Next, Stacey contends the trial court erred in failing to exclude his pre-trial identification as impermissively suggestive.

As Officer Joel Richards of the Carrollton Police Department responded to a call regarding the present incident, he saw Stacey walking up the road, and he stopped to question Stacey. Stacey denied any knowledge of the accident but told Officer Richards his name. At the scene, Officer Richards found information in the vehicle identifying Raymond Stacey. Officer Richards obtained a photograph and proceeded to locate and question witnesses. On the same night as the incident, each witness described Stacey, and Officer Richards showed them a picture of Stacey for confirmation. It is undisputed that Officer Richards used only one photograph for the identification. Thereafter, each of these witnesses positively identified Stacey during the trial.

“Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. . . . [T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation.” (Citations and punctuation omitted.) McClendon v. State, 210 Ga. App. 404, 405 (436 SE2d 524) (1993).

In the present case, the two witnesses at the Amoco station viewed Stacey in the cashier’s area of the station as Stacey attempted to pay for the cost of the gasoline which his companion had already paid. One of the cashiers testified that she and the other cashier watched Stacey because he appeared to be drunk. All the witnesses described Stacey to Officer Richards, who produced the photograph merely for confirmation. Under the totality of circumstances, the photograph identification, made on the same night the witnesses saw Stacey originally, was not unreasonable or unduly suggestive and did not improperly taint the witnesses’ in-court identification. See id.

Decided July 26, 1994.

Word & Flinn, Candace E. Rader, for appellant.

Peter J. Skandalakis, District Attorney, Jeffrey W. Hunt, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A94A1774.
    PRAYOR v. THE STATE.
    (447 SE2d 155)
   Pope, Chief Judge.

Defendant Charles Wade Pray or filed this appeal from the denial of his motion for supersedeas bond, OCGA § 17-6-1, following his conviction for aggravated assault.

The record shows that defendant, watching through a window in his house, saw a 15-year-old boy break into his truck. He went outside and chased away the teenager before re-entering his house to call 911. After hanging up the phone, defendant retrieved his .357 magnum, got into his car, and tracked down the teenager at a nearby school. The teenager did not stop at defendant’s command, and defendant fired what he termed a warning shot which struck the teen in the back or side, paralyzing him.

In his sole enumeration of error, defendant contends that the trial court erred by denying his motion for a supersedeas bond. We find no merit to this contention. The trial court should not grant bond unless defendant meets his burden of presenting sufficient evidence to convince the trial court that (1) there is no substantial risk the applicant will flee, (2) he is unlikely to commit a'serious crime, (3) he will not intimidate witnesses or otherwise interfere with the administration of justice, and (4) his appeal is not frivolous or taken for delay. Birge v. State, 238 Ga. 88, 90 (230 SE2d 895) (1976), cert. denied, 436 U. S. 945 (98 SC 2847, 56 LE2d 786) (1978). The trial court complied with the procedure set forth in Birge and did not abuse its discretion in denying the appeal bond based on evidence that defendant showed a violent character which, coupled with his violent tern-per, lack of remorse, and belief that he had committed no wrong in shooting a fleeing teenager who appeared to be stealing his truck, indicated that defendant would be a danger to others. See Bell v. State, 204 Ga. App. 528, 530 (2) (419 SE2d 729) (1992).

Decided July 26, 1994.

Douglas R. X. Padgett, for appellant.

J. Tom Morgan, District Attorney, Richard S. Moultrie, Jr., Gregory J. Lohmeier, Assistant District Attorneys, for appellee.

The trial court also found that defendant failed to prove his appeal was not frivolous or taken for purposes of delay. Defendant based his appeal on Johnson v. Jackson, 140 Ga. App. 252 (230 SE2d 756) (1976), which he misinterprets as authorizing a person to use violent force to stop a fleeing suspect. As the trial court stated, the law in Georgia forbids a person from using more force than is reasonable under the circumstances to make a citizen’s arrest and deadly force in making the arrest is limited to self-defense or to a situation where it is necessary to prevent a forcible felony. See OCGA §§ 17-4-20; 17-4-60. Furthermore, Johnson involved a different factual scenario than the case at hand. The shooting in Johnson occurred while the defendant was investigating the burglary of his home and immediately after he had been violently assaulted. In this case, the defendant’s life was never in danger, he had already called the police, and he re-initiated the chase after retrieving a gun from his home.

Judgment affirmed.

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


text:
    A94A0374.
    COOK et al. v. HOME DEPOT, INC.
    (447 SE2d 35)
   Beasley, Presiding Judge.

Cook was injured in a Home Depot store when a piece of plywood measuring four feet by eight feet by one-half inch landed on his foot. He and his wife sued Home Depot, which was awarded summary judgment.

Construing the evidence most favorably to the Cooks, Shannon Cook entered a Home Depot store to purchase some lumber. He approached a stack of plywood sheets five feet high. Because of that height, he could not properly see the top sheet. He touched it in an effort to determine if the plywood was what he wanted; it fell onto and broke his foot.

Appellants’ complaint alleges negligence in failing to keep the premises safe, failing to store the plywood properly, failing to warn patrons of the dangers of removing lumber without assistance, and failing to have enough employees to assist customers in the lumber department.

1. The principle of equal or superior knowledge is not limited to slip and fall cases, but “applies to ‘static’ defective or dangerous conditions on property. [Cit.]” Ga. Ports Auth. v. Hutchinson, 209 Ga. App. 726, 727 (2) (434 SE2d 791) (1993). “ ‘ “ ‘The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner . . . and not known to the person injured that a recovery is permitted.’ (Emphasis in original.) (Cit.)” (Cit.)’ [Cit.]” Westbrook v. M & M Supermarkets, 203 Ga. App. 345 (1) (416 SE2d 857) (1992). “Although expressed in the context of a slip and fall case, the principle restated in Alterman v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) is also applicable here: The dangerous instrumentality must have been known to the proprietor and unknown to the invitee before the invitee can recover. [Cit.]” Sarantis v. Kroger Co., 201 Ga. App. 552 (411 SE2d 758) (1991).

The Cooks have made no showing that Home Depot was actually aware of the condition of the stacked plywood. Without actual notice of any defect in the storage of the plywood, Home Depot could still be liable if it had constructive notice of a dangerous condition. Flood v. Camp Oil Co., 201 Ga. App. 451, 452 (411 SE2d 348) (1991). But, as in Madaris v. Piggly Wiggly Southern, 205 Ga. App. 405, 406-407 (2) (422 SE2d 273) (1992), “there was no evidence that there was any employee of appellee in the immediate vicinity who could easily have noticed [the dangerous condition].”

“Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist. (Cits.)” (Emphasis supplied.) [Cit.]’ [Cit.]” Thompson v. Regency Mall Assoc., 209 Ga. App. 1, 3 (1) (432 SE2d 230) (1993). There was no proof of the length of time that the dangerous condition existed.

The Cooks contend that Home Depot had constructive notice of the condition because of knowledge of similar incidents. The only similar incidents of which there is any evidence in the record concern lumber being pulled down by customers, causing injury, and articles other than lumber being dropped by customers. These are not sufficiently similar to give Home Depot constructive notice of any defect in the stacking of this plywood such as would cause the incident described by Mr. Cook. There is no evidence that Home Depot had superior knowledge of any defect in the way the plywood was stacked.

The Cooks also argue that on the issue of superior knowledge, Home Depot bears the burden on summary judgment and has not met that burden. The defendant may satisfy its burden by showing that there is an absence of evidence as to one or more essential elements of plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “On appellee’s motion for summary judgment [cit.], even assuming appellee had knowledge of the peril, it was appellant’s burden to come forward with specific evidence that appel-lee’s knowledge of the peril was superior, for that is the true ground of the proprietor’s liability.” Minor v. Super Discount Markets, 211 Ga. App. 123, 124 (438 SE2d 384) (1993). The Cooks have presented no such evidence of unsafe premises.

2. The Cooks also advance theories of recovery that they argue are not based upon premises liability grounds, including the allegation that the plywood was improperly stored. Pretermitting the question of whether that would relieve Cook of his burden to exercise due care for his own safety, Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980), no evidence is presented that appellees stored the plywood improperly. Cook stated that the top sheet of plywood was “hung up” on the frame or shelf, but he also testified that he could not see that the top sheet was “hung up,” and that the top sheet was tilted at an angle. No evidence of how the plywood should have been stored was presented. Additionally, it is not disputed that customers will sometimes rearrange the plywood to get the exact sheets they want. There is no evidence that the plywood display was in the same condition when Cook encountered it as it was when stored. Summary judgment is not avoided by this allegation.

3. The Cooks also allege that Home Depot breached a duty to warn of the dangers of removing lumber without assistance. Again, pretermitting the question of whether that would relieve Cook of his burden to exercise due care for his own safety, Alterman Foods, supra, this allegation is belied by the facts. Cook stated that he did not try to move the plywood but only touched it. Additionally, he stated that he usually had someone help him when moving lumber.

4. The Cooks also allege that Home Depot did not have enough employees in the lumber department to supply proper assistance to customers removing lumber. Cook knew assistance would be given him, if he sought it, but he did not seek it. Again, he maintains he did not attempt to remove the lumber. The facts do not support this allegation and summary judgment is not foreclosed on this basis.

5. The Cooks also ask that this court impose a higher than usual standard of care on Home Depot and other “self-service” stores, arguing that such stores reap the economic benefits of hiring fewer clerks and should be held to more stringent standards than stores that supply more clerks. Economic benefits of such stores’ operations also accrue to the customers who choose to shop in such stores because of their prices. Our standard of ordinary care to keep business premises in a reasonably safe condition, see Madaris, supra at 406 (1), properly encompasses a variety of factual situations, including self-service stores.

Decided May 2, 1994

Reconsideration denied May 27, 1994

Moffett & Henderson, F. Glenn Moffett, Jr., L. Prentice Eager III, for appellants.

Goldner, Sommers, Scrudder & Bass, C. G. Jester, Jr., William W. Horlock, Jr., for appellee.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


author: Andrews, Judge. Beasley, Presiding Judge,

text:
    A94A0039.
    A. B. C. DRUG COMPANY, INC. v. MONROE.
    (447 SE2d 315)
   Andrews, Judge.

A. B. C. Drug Company, d/b/a Pic N’ Save Drugs (ABC) appeals from the judgment entered on the jury’s verdict in favor of Monroe and from the denial of its motion for j.n.o.v. or new trial.

1. Viewing the evidence in favor of the jury’s verdict, as we must do, Ailion v. Wade, 190 Ga. App. 151, 155 (4) (378 SE2d 507) (1989), it was that, on August 8, 1989 about 11:30 a.m., Monroe went to one of ABC’s drugstores to buy powdered detergent and liquid Clorox bleach so she could do five loads of laundry. She first picked up the box of detergent which she was carrying under her left arm and proceeded to the aisle where the bleach was stored. Because of the amount of laundry, she needed a half-gallon of Clorox. As she entered the bleach aisle, she noticed that, four or five feet over from the Clorox section, several bottles of another brand of bleach were turned over and some had the labels removed. There was nothing observable out of order in the Clorox section. She was 5 5 tall and, in order to reach a half-gallon container which she saw on one of the upper shelves, she had to reach over her head.

The manager stated that, on the bleach aisle, the one-gallon containers of Clorox were stacked three or four high in a deep well, separated by dividers. The half-gallon bottles, the smallest container with a handle, were stored on a shelf above the gallon containers and could have been stored over five feet high, although they would not be stacked on the top or next to the top shelf. On the next to the top shelf, the pint bottles of Clorox were shelved, along with powdered Clorox II, a non-bleach product. On the top shelf, half-gallon bottles of liquid Clorox II were shelved.

As Monroe reached up to get the half-gallon of Clorox with her right hand, she observed that the cap was on the bottle and nothing improper was apparent. She took the handle and had tilted the bottle toward her in order to get it off the shelf when it “gushed” into her face. She was momentarily blinded and immediately let go of the bottle. Her screams brought a woman employee from the meat department who took her to a sink and helped her rinse out her eyes.

Monroe asked for an ambulance but was told by a man who had been called by the woman employee that it was store policy not to call an ambulance and they were not allowed to transport people in their own vehicles. Monroe’s sister was called and took her to the emergency room where her eye was irrigated and treated and she was discharged with salve and a patch to cover her right eye. Thereafter, she was seen by an ophthalmologist who eventually performed outpatient surgery to close her right tear duct as a result of the chemical burns.

After Monroe had left with her sister, 30 or 40 minutes after the accident, assistant manager Fulford went to the bleach aisle. The “only thing [he] found was a pint bottle [on the shelf] that did have a loose cap on it” and a small spot of “some liquid” about the size of a half-dollar on the floor. Fulford also said that most spills or fallen bottles were cleaned up within a few minutes and he could not say that this pint bottle was the one involved in the accident.

Douglas, the store manager, explained the stocking procedure for items displayed in the bleach aisle. The stock person would lift each container from its shipping box, price it, drop it back in the box, and when all were priced, lift each one out again and place it on the shelf. If the bottles had handles, the lifting was done by the handle; if not, the bottle would be lifted by its top. During the process of shelving, any defective merchandise would be corrected or not shelved.

Although there was no written policy about inspecting the aisles during the day and no written record of any such inspections, it was ABC’s practice that the aisles be visually inspected periodically during the day. This could consist of actually walking the aisles or looking down each one from the end. Manager Douglas usually went up and down the aisles five or six times a day. He was not in the store on the day of Monroe’s accident until after it happened, but Assistant Manager Fulford had personally walked the bleach aisle at least once around 9:00 a.m. before Monroe’s accident at 11:30 a.m. and had noticed nothing out of the ordinary.

Both Douglas and Fulford acknowledged that a half-gallon bottle of bleach stored above eye level with a loose cap would be a “dangerous condition.” Such an incident, however, had not previously occurred in the store and, as acknowledged by Monroe, you could not tell the cap was loose by looking at it.

The complaint alleged ordinary negligence in that ABC (1) failed to “adequately inspect and maintain its merchandise, specifically in allowing the bleach container to remain on the shelf with a loose top” and (2) allowed “a heavy container with caustic qualities ... to be stocked on an upper shelf” making it more difficult for the customer to control the container and discover the loose top. By amendment, Monroe added her claim that a bottle of Clorox displayed at a dangerous height and with a loose lid or top is not a product which is reasonably suited for the use intended and that ABC failed to honor its implied warranty of merchantability to its customers.

2. “A judgment n.o.v. is properly granted only when there can be only one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is not error to deny the motion. [Cits.]” Stone v. Cook, 190 Ga. App. 11, 12 (1) (378 SE2d 142) (1989).

ABC moved for a directed verdict at the conclusion of plaintiff’s case as well as renewing that motion at the conclusion of all the evidence. As to the implied warranty of merchantability, OCGA § 11-2-314 (2) (e), ABC argued that this theory would not apply because a loose cap was a patent defect or a latent defect which was discoverable by the exercise of caution by the buyer. If Monroe had looked at the bottle and checked the lid before attempting to lift it off the shelf, she would have known of the problem with that particular bottle, and the warranty would not apply.

As to the issue of whether ABC had properly inspected the area, ABC argued there was no evidence any employee was in the aisle at the time of the incident so as to have had actual knowledge, nor had there been a showing of constructive knowledge so that ABC should have known.

(a) “For [plaintiff] to recover under a common law negligence theory, there must have been a defective condition on [defendant’s] premises, which defect was the cause of [plaintiff’s injury] and of which [defendant] had superior knowledge. [Cit.] The law is clear that the basis for an owner’s liability for injury occurring to another while on the owner’s property is the owner’s superior knowledge of the danger or defect which was the proximate cause of the injury. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” (Citations and punctuation omitted.) Garnett v. Mathison, 179 Ga. App. 242 (2) (345 SE2d 919) (1986).

There is no evidence here that ABC had actual knowledge of the loose cap. Therefore, any recovery must be based on constructive knowledge. “ ‘Constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard. (Cit.) Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist. (Cits.)’ (Emphasis supplied.) [Cit.]” Food Giant v. Cooke, 186 Ga. App. 253, 254 (1) (366 SE2d 781) (1988). See Smith v. Wal-Mart Stores, 199 Ga. App. 808 (406 SE2d 234) (1991).

Because the last inspection of which there was evidence in the record occurred over two hours before the spill, we conclude that a jury issue did exist as to whether ABC should have been aware that the half-gallon had been placed on the wrong shelf and denial of the motion for j.n.o.v. on this ground was not error.

We next consider the issue of whether ABC had superior knowledge of the improper display.

Monroe’s claim is that the spill was occasioned because the bottle was on a high shelf, requiring her to tip it in order to get it off the shelf. Monroe was aware that she was tipping a bottle containing a caustic liquid toward her face in order to get it off the shelf. “ ‘There was no duty to warn her of a condition of which she had knowledge at least equal to that of defendants. (Cits.)’ ” Smith, supra at 810.

Further, the store’s practice was not to shelve half-gallons of bleach, as opposed to Clorox II, on the top or next to the top shelves. Monroe has failed to show that ABC had stacked the bleach in an inherently dangerous fashion, Colonial Stores v. Donovan, 115 Ga. App. 330, 331 (2), (3) (154 SE2d 659) (1967), or had knowledge superior to her own that a half-gallon of bleach was placed on a higher shelf. J. H. Harvey Co. v. Johnson, 211 Ga. App. 809 (440 SE2d 548) (1994); Smith, supra.

As to the loose cap, Monroe looked directly at it as she was lifting the bottle off the shelf and noticed nothing wrong with it. Therefore, even if hourly inspections were undertaken by ABC, there was nothing visible which would have alerted store personnel to the loose cap. Compare Wallace v. Sears, Roebuck &c., 196 Ga. App. 221 (396 SE2d 41) (1990) (display of loose skateboards by store resulted in patron being struck by child using one in store aisles and created jury question).

(b) As to the implied warranty theory, “ ‘[t]he law of implied warranty will not avail against patent defects, nor against latent defects which are either disclosed or are discoverable by the exercise of caution on the part of the purchaser.’ ” Smith v. Northeast Ga. Fair Assn., 85 Ga. App. 32, 36 (7) (67 SE2d 836) (1951). See Wilkinson v. Rich’s, 77 Ga. App. 239, 244 (2) (48 SE2d 552) (1948); Jones v. Knightstown Body Co., 52 Ga. App. 667, 672 (6) (184 SE 427) (1936).

Therefore, we conclude that the court, as a matter of law, erred in not granting ABC its motion for j.n.o.v.

Judgment reversed.

Beasley, P. J., concurs specially and Johnson, J., concurs in the judgment only.

Beasley, Presiding Judge,

concurring specially.

Although I concur in reversal of the judgment, I do so on the following analysis.

Plaintiff presented her case on two theories, premises liability and breach of implied warranty of merchantability, as set out in the pretrial order and the charge to the jury. Defendant objected to the latter as being inapplicable.

The evidence fails to show a breach of the duty of the premises owner or occupier to maintain the premises in a safe condition. The majority holds that there was a jury issue as to whether defendant should have been aware that the half-gallon had been placed on the “wrong” shelf. Even if the half-gallon was on a high enough shelf so as to require plaintiff to reach above her head to get it, this would not constitute a “defect” in the premises. As noted by the majority, this is not an inherently dangerous stacking. Even if the proprietor put it on that shelf, as opposed to a customer’s placing it there after removing it from another shelf, it was not in such a place “as to threaten injury to those visiting the store who are in the exercise of ordinary care for their own safety.” Parsons, Inc. v. Youngblood, 105 Ga. App. 583, 585 (125 SE2d 518) (1962).

The problem is that the cap was loose. But it is not a question of equal knowledge of this irregular condition. There is no evidence that defendant knew or should have known of this condition of the product it offered for sale. It does not have a duty to check the shelved containers periodically to assure that the container caps are tight. The loose condition of the cap in plaintiff’s case wold not have been detectable by defendant’s visual inspection along the aisles for defects or dangerous conditions any more than it was detectable by plaintiff’s looking at it. It was loose, not off.

Also, the defendant did not owe a duty to check the tightness of every container cap when shelving it, in the absence of any evidence that looseness was a reasonably foreseeable condition. As the shelf-stocker testified, the merchandise is lifted out of the box, price-marked, dropped back down in the box, and after all the pricing is done, lifted out again and shelved. He testified that this activity would cause leakage or splattering if the cap was loose.

Assuming that the container of liquid Clorox, with a loose cap, sitting on a shelf with other similar merchandise, constitutes a “defect” in the premises so they were not “safe,” there is no evidence of negligence on defendant’s part such as to create liability for plaintiff’s injury. See Cook v. Home Depot, 214 Ga. App. 133 (447 SE2d 35) (1994).

Another theory was put to the jury as well, and the verdict does not indicate which theory was the basis for the finding of liability. OCGA § 11-2-314 imposes an implied warranty of merchantability on goods sold by merchants such as defendant. According to subsection (2) (e), in order to be merchantable, goods must be “adequately contained, packaged, and labeled as the agreement may require.” Here the Clorox was not adequately contained and packaged; it leaked out when the container was tipped. To say that a purchaser has a duty to assure the tightness of the top before removing it from the shelf creates an unreasonable burden on the shopper, absent some warning such as regularity that the top may be loose.

However, since there was no sale in this case, the plaintiff lacks the necessary privity with the seller to be entitled to the warranty. “Georgia law requires a showing of privity between the injured person and the seller of the product before a claim based upon an implied warranty may be brought. [Cit.]” Morgan v. Mar-Bel, Inc., 614 FSupp. 438, 441 (N.D. Ga. 1985). See Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 751 (206 SE2d 857) (1974), affirmed 233 Ga. 578 (212 SE2d 377) (1975); Lamb v. Ga.-Pacific Corp., 194 Ga. App. 848, 850 (4) (392 SE2d 307) (1990). “By statute, the UCC warranties can only be made by a seller of goods and those warranties can only be extended either to the buyer or to those who have a specified relationship with the buyer. See OCGA § 11-2-318. The Stewart opinion recognizes that, for purposes of imposing liability for a breach of the UCC warranties, it is the applicable specific statutory provisions of the UCC and not general legal principles that are controlling as to the privity requirement and any exceptions thereto.” Decatur North Assoc. v. Builders Glass, 180 Ga. App. 862, 864 (1) (350 SE2d 795) (1986).

This case differs from Fender v. Colonial Stores, 138 Ga. App. 31 (1A) (225 SE2d 691) (1976), in that privity of contract was created there by plaintiff’s act of taking physical possession of the merchandise in the self-service store, with the intent to purchase it. The customer was at the check-out counter and lifted the bottles from her cart to present to the checker to ring up when one of them exploded. Here the plaintiff was merely in the act of taking physical possession when the liquid spilled and she dropped the container. Privity had not yet arisen.

I note that plaintiff did not pursue a theory of liability against the manufacturer for offering for sale a defective product, which would be one containing a manufacturing defect, a design defect, or a defect of inadequate instructions or warnings. OCGA § 51-1-11. See Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44 (248 SE2d 15) (1978). The statute does not allow such a claim against the seller, however. See Maleski, Georgia Products Liability, 2d ed. (1993), § 2-3, and cases cited therein. The action might proceed upon an allegation that the manner of capping the caustic product was a defect in that there was no seal either on the container itself or on the cap, so as to prevent tampering or leakage. As to whether this intended purchaser should have standing to bring such an action, see Maleski, supra at § 8-5.

Decided June 16, 1994

Reconsideration denied July 27, 1994

Walker & Sweat, Forrest W. Sweat, Jr., Craig R. White, for appellant.

Chambers, Rice & Rogers, Charles B. Rice, Delman L. Minchew, for appellee.


text:
    A94A0098.
    MERRILLS et al. v. HORACE MANN INSURANCE COMPANY.
    (447 SE2d 112)
   Judge Harold R. Banke.

On January 5, 1992, Beverly Merrills and her family were involved in a single-vehicle accident in Oklahoma, which resulted in the death of one of her children and injuries sustained by her husband and other children. At the time of the accident, the appellee, Horace Mann Insurance Company, insured the vehicle driven by Beverly Merrills and another vehicle the Merrills owned, on separate policies issued in Georgia.

After the Merrills asserted claims under the liability and uninsured motorist coverage provisions of both policies, the appellee insurer commenced this declaratory judgment action seeking a determination of its maximum liability. This appeal follows from the trial court’s grant of summary judgment for the appellee, finding that it was liable only under the policy covering the vehicle involved in the accident, with a limit of $30,000, and that no coverage for the accident was available under the other policy or the uninsured motorist provisions of either policy.

Following the commencement of this declaratory judgment action, the appellants (except Beverly Merrills) filed an action in Oklahoma against Beverly Merrills and the appellee, seeking recovery for personal injuries and benefits due under the insurance policies issued to the Merrills. The Oklahoma trial court denied a motion to dismiss filed by the appellee, and that action remains pending there.

The appellants contend that declaratory relief became inappropriate in this case upon the commencement of the action in Oklahoma against Beverly Merrills and the appellee insurer, in which the same issues were raised as in this declaratory judgment action regarding the coverage provided under the insurance policies issued by the appellee. We agree.

The usual context in which an insurer seeks declaratory judgment involves litigation between an insured and a third party, where the insured expects a defense and coverage to be provided by the insurer who is not a party to that action. See Famble v. State Farm Ins. Co., 204 Ga. App. 332 (3) (419 SE2d 143) (1992). However, in the instant case, the insurer was a party to the pending litigation in Oklahoma, and the coverage afforded by the policies issued to the Merrills was placed directly in issue.

“A declaratory judgment will not be rendered to give an advisory opinion in regard to questions arising in a proceeding pending in a court of competent jurisdiction, in which the same questions may be raised and determined.” (Citations and punctuation omitted.) Tennessee Farmers Mut. Ins. Co. v. Wheeler, 170 Ga. App. 380, 381 (2) (317 SE2d 269) (1984). “Where the questions to be answered are legal ones determinable in another proceeding then in progress between the same parties, in a court having jurisdiction to determine them, the court will ordinarily refuse to entertain a declaratory judgment proceeding. [Cit.]” Darnell v. Tate, 206 Ga. 576, 581 (1) (58 SE2d 160) (1950). Further, a declaratory judgment action is not available for a party merely to test the viability of its defenses in such a pending action. Chattahoochee Bancorp v. Roberts, 203 Ga. App. 405 (416 SE2d 875) (1992).

The appellee argues that the above rule applies only where the pending action precedes the declaratory judgment action. However, there is no logical basis for applying a different rule where the declaratory judgment action precedes the action against the insurer over the insurance coverage. “The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated.” (Citations and punctuation omitted.) Chattahoochee Bancorp v. Roberts, supra at 406. Regardless of when a pending action is commenced against the insurer itself, it forces the insurer to take a position and conduct itself accordingly. At that point, allowing a declaratory judgment action would defeat the purpose of such a procedure.

In the instant case, it was uncontroverted that the appellants’ Oklahoma action filed against the appellee involved the same issues of coverage as raised by the appellee in this declaratory judgment action. Upon filing of that Oklahoma action, the appellee’s present action converted into one seeking “an advisory opinion as to which party would prevail on the merits in such litigation. ...” Royal Lepage Real Estate Svcs, of Atlanta v. Spalding Partners, Ltd., 192 Ga. App. 284, 285 (1) (384 SE2d 424) (1989). The declaratory judgment procedure is inappropriate in such a situation, and the trial court’s grant of summary judgment for the appellee thus must be vacated as nugatory. Cf. Revelle v. Home Sites, Ltd., 208 Ga. App. 645 (431 SE2d 405) (1993).

Decided July 12, 1994

Reconsideration denied July 27, 1994

Womack & Rhyne, John W. Rhyne, Jr., for appellants.

Chambers, Mabry, McClelland & Brooks, Douglas F. Aholt, Beth L. Singletary, for appellee.

Judgment vacated.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A0429.
    COLLINS v. BIRCHFIELD et al.
    (447 SE2d 38)
   Andrews, Judge.

We granted the discretionary application of the State Revenue Commissioner, Collins, arising out of the following facts. In September 1990, Birchfield & Birchfield, Inc. were involved in the illegal manufacture of methamphetamine. Birchfield was arrested and found guilty in federal court of possessing, knowingly manufacturing, and conspiring to knowingly manufacture methamphetamine.

The revenue commissioner subsequently imposed three separate jeopardy assessments pursuant to OCGA § 48-2-51 against Birchfield. and his company. Those assessments were a $2,833,000 marijuana and controlled substances excise tax, imposed on October 10, 1990; a $100,000 marijuana and controlled substances excise tax imposed on September 26, 1990; and a $54,000 sales and use tax, imposed on September 28, 1990. See also OCGA § 48-15-1 (the Excise Tax on Marijuana and Controlled Substances) and OCGA § 48-8-1 (Sales and Use Taxes).

Pursuant to OCGA § 50-13-12, Birchfield appealed the assessments within 30 days. A return receipt contained in the record shows that Birchfield’s hearing demand was received by the revenue department on October 24, 1990.

Following receipt of the appeal, on December 12, 1990, a revenue hearing officer advised Birchfield that a pre-hearing conference would be scheduled in 90 days. The hearing officer’s letter stated that “should you wish to have the hearing of this appeal scheduled immediately, please let me know as soon as possible.” Birchfield did not make such a request. On January 18, 1991, he filed a motion to dismiss the assessments, since no administrative hearing had been held within 30 days of his demand.

On June 14, 1991, the administrative hearing was held. On April 10, 1992, the revenue hearing officer denied the appeal and affirmed the assessments. On May 8, 1992, Birchfield appealed to the superior court pursuant to OCGA § 50-13-19.

On August 6, 1993, the superior court held that the failure to hold the administrative hearing within 30 days of Birchfield’s demand required that the department’s tax assessments be dismissed and that the property seized by the department be returned. We granted the commissioner’s discretionary application with respect to this decision.

Collins argues that the superior court erred in dismissing the assessments, since the agency finding must be upheld unless clearly erroneous. OCGA § 50-13-19 (h) provides that a court may reverse or modify an agency decision if substantial rights of the appellant have been prejudiced because the administrative decision was made upon unlawful procedure.

Substantively, Collins argues that the provisions of OCGA § 50-13-12 (b) are directory and not mandatory. OCGA § 50-13-12 (b) provides that an aggrieved taxpayer shall file his demand for a hearing within 30 days after the act causing the injury, and that “unless postponed by mutual consent, the hearing shall be held within 30 days after receipt by the Department of Revenue of the demand therefor.” Collins cites O’Neal v. Spencer, 203 Ga. 588 (47 SE2d 646) (1948), for the proposition that “ ‘[w]here a statute directs the doing of a thing in a certain time, without any negative words restraining the doing of it afterwards, generally the provision as to time is directory, and not a limitation of authority; and in such case, where no injury appears to have resulted, the fact that the act was performed after the time limited will not render it invalid.’ ” See also Hopping v. Cobb County Fair Assn., 222 Ga. 704, 706 (2) (152 SE2d 356) (1966); McLendon v. Everett, 205 Ga. 713 (2) (55 SE2d 119) (1949); compare Hancock County Bd. of Tax Assessors v. Dickens, 208 Ga. App. 742 (1) (431 SE2d 735) (1993).

Birchfield argues that the trial court’s reversal was proper since the agency decision was based upon unlawful procedure. In support of his position, he cites Henderson v. State, 205 Ga. App. 542 (422 SE2d 666) (1992), aff’d 263 Ga. 508 (436 SE2d 209) (1993); and Alford v. State, 208 Ga. App. 595 (4) (431 SE2d 393) (1993), which interpreted the hearing time limits in the drug forfeiture statute, OCGA § 16-13-49 (o) (5), as mandatory. He argues that the drug forfeiture and jeopardy assessment statutes at issue here are similar and warrant the same treatment. He also cites OCGA § 48-2-45, which provides that if no written protest is filed by the taxpayer with the commissioner within 30 days of the date of the notice of assessment, the tax shall become final, as further support for his position.

It is necessary to first distinguish the tax statute at issue here from the drug forfeiture statute. The assessments here were levied as part of the Georgia Public Revenue Code (OCGA § 48-15-1 et seq.). OCGA § 48-15-9 provides that the administration of the drug excise tax should be governed by the general laws governing the administration of taxes. These provisions are separate from the criminal forfeiture provisions of OCGA § 16-13-49. The distinction between these statutes is illustrated by OCGA § 48-15-10 (a) which provides that information contained in drug tax returns may not be revealed to others, nor may such information be used against the person in any criminal proceeding. The hearing procedures in Henderson and Alford are specifically those required for property forfeitures and require that the hearing must be held within 60 days unless continued for good cause.

Regardless of the drug forfeiture statute, the issue here is whether the revenue department was required to hold the hearing on Birchfield’s request within 30 days. Hardison v. Fayssoux, 168 Ga. App. 398 (309 SE2d 397) (1983) is instructive to our inquiry. In Hardison, the statute at issue was OCGA § 40-5-55, which provides that a person who is notified that his driver’s license is to be suspended may request a hearing and within 30 days after receiving a written request for a hearing, the department shall hold a hearing as provided in Chapter 13 of Title 50, the Georgia Administrative Procedure Act. The hearing in Hardison had been rescheduled and fell outside of the 30-day period. Fayssoux contended that because the word “shall” was used in the section, the timing of the hearing was mandatory and that the failure to hold the hearing within the 30-day period warranted dismissal of the charges.

The Hardison court recognized that in its “ ‘ordinary signification “shall” is a word of command, and the context ought to be very strongly persuasive before that word is softened into mere permission.’ ” Id. at 400; see, e.g., Ring v. Williams, 192 Ga. App. 329 (2) (384 SE2d 914) (1989); OCGA § 1-3-3 (10). Nonetheless, the court noted that in the absence of injury to the defendant and in the absence of a penalty for failure to comply with the statute, “ ‘shall’ denotes simple futurity rather than a command.” Hardison at 400. The Hardison court then cited OCGA § 1-3-1 (c) which provides that “substantial compliance with any statutory requirement, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law.” Accordingly, the court held that the superior court erred in reversing the Department of Public Safety’s decision to suspend appellee’s license. Compare Sanchez v. Walker County Dept. of Family &c. Svcs., 237 Ga. 406 (229 SE2d 66) (1976).

Given the circumstances of this case, we find no error in the failure to hold the hearing within 30 days. There has been no harm shown by the delay and the statute contains no provision regarding the failure to hold the hearing within this time period. Accordingly, we conclude that the statute’s provision is directive and not mandatory. The superior court’s reversal of the agency’s decision on this basis was erroneous. We reverse and remand for determination of the issues which the superior court failed to address below. We will not address Birchfield’s various arguments regarding the constitutionality of the assessment statute.

Judgment reversed and case remanded.

Johnson, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I agree that the taxpayers are not entitled to dismissal of the assessments and return of the seized property, but for a different reason.

The jeopardy assessments and demands for immediate payment of the marijuana and controlled substance excise taxes imposed under OCGA § 48-15-3 and the state and local sales/use taxes were under the authority of OCGA § 48-2-51, as expressly stated in the notices. The notices advised at the bottom of each that if the taxpayers desired to appeal, they should refer to the reverse side of the notices. The reverse sides are not in the record and were not filed in the court below, so we do not know what instructions, if any, were given to the taxpayers by the Department of Revenue.

In any event, taxpayer Birchfield filed a letter, within 30 days of the assessments and demands, “to appeal” the taxes on various grounds. The letter referred to “this appeal” but cited no statute as authority for it. However, in the motion of Birchfield and the corporation to dismiss the tax executions and assessments, they refer to OCGA § 48-2-45 for the procedure they had invoked. That section acknowledged the opportunity for a “written protest” within 30 days; it has since been amended to substitute the word “appeal” for “protest.” Ga. L. 1993, p. 961.

When a taxpayer contests the assessment by a protest or appeal, the authority for which is actually OCGA § 48-2-46, the procedure is governed by that Code section and OCGA § 48-2-47. OCGA § 48-2-46 provides that “In the event the taxpayer desires a conference or hearing, the fact of such desire must be set out in the protest.” The letter of taxpayer Birchfield’s attorney alludes to such only indirectly by stating that “[w]e will show by testimonial evidence, the facts upon which our position is based.” The department apparently took that as sufficient, as it set a hearing. According to the statute, the conference or hearing is to be “at a time [the commissioner] shall specify,” and shall be conducted under reasonable rules. The commissioner’s discretion in this procedure “shall be reasonably exercised on all occasions,” concludes this Code section. By his deputy, he notified the taxpayers’ attorney that the APA would be followed for the purpose of the hearing, thus choosing it instead of a separate set of rules for the conduct of the hearing. OCGA § 50-13-13 sets out the rules for hearing contested cases.

Decided May 19, 1994

Reconsideration denied July 27, 1994.

Michael J. Bowers, Attorney General, Daniel M. Formby, Senior Assistant Attorney General, Harold D. Melton, Assistant Attorney General, for appellant.

OCGA § 48-2-46 is the procedure which the taxpayer invoked and which was followed in this case. Although the motion to dismiss, and the appeal as it has wended its way here, claim a violation of OCGA § 50-13-12, that procedure was never properly invoked. OCGA § 50-13-12 (a) requires the Department to hold a hearing in accordance with the scheme set out therein “upon written demand” for a hearing by the taxpayer. Subsection (b) sets this mechanism into motion, which mechanism was adopted as part of the Administrative Procedure Act especially and exclusively for the Department of Revenue, when the taxpayer files a timely “demand for a hearing.” The taxpayers did not do that in this case, by their own admission. They (to the extent the letter of protest represented both the taxpayers involved here) chose the route provided by OCGA §§ 48-2-45; 48-2-46; and 48-2-47, rather than by OCGA § 50-13-12.

It is noted that subsection (d) of OCGA § 50-13-12 acknowledges that there are other avenues for pursuing taxpayer remedies. Also, it provides for judicial review under OCGA § 50-13-19 after the administrative procedure provided in OCGA § 50-13-12 is exhausted, just as the same judicial review is available to the aggrieved taxpayer after the final assessment is determined under OCGA § 48-2-47. Subsection (a) of OCGA § 50-13-19 embraces “all administrative remedies.”

Appellees did not show that the time of the hearing provided by the department in accordance with OCGA § 48-2-46 violated their rights under it, and since timeliness of the hearing was the sole basis for the court’s ruling below, I agree that it must be reversed.

I do not reach the question of whether the time period for a hearing which is set out in OCGA § 50-13-12 (b) is directory or mandatory.

David S. Lipscomb, for appellees.


text:
    A94A0577.
    McCUMBERS v. WESTSIDE ASSOCIATES, INC.
    (447 SE2d 331)
   Judge Harold R. Banke.

This appeal arises from a breach of contract action brought by the appellee Westside Associates, Inc., a real estate brokerage firm, against Kenneth McCumbers, a real estate developer and building contractor.

In April 1986, the appellant purchased a 31-acre tract with the intention of developing it into a residential subdivision. The appellee served as broker for the sale. The parties executed an addendum to the sales contract in which the appellant agreed to give the appellee the exclusive right to sell all homes built in the proposed development in exchange for an amount equal to the appellee’s commission on the tract sale. It is undisputed that the appellee paid this sum to the appellant.

The appellant eventually divided the property into 41 lots, but never built any houses on the property. Instead, because of extensive delays and significantly higher costs than anticipated with the proposed development, the appellant sold the property to another developer in 1992. The appellee then commenced this action to recover lost commissions resulting from the appellant’s alleged breach of the exclusive listing agreement. The trial court granted partial summary judgment for the appellee as to the issue of liability, and denied the appellant’s motion for summary judgment. This appeal followed.

“The construction of a contract is a question of law for the court.” OCGA § 13-2-1; see also Kennedy v. Brand Banking Co., 152 Ga. App. 47, 53 (4) (262 SE2d 177) (1979). “ ‘The cardinal rule of construction to be applied in the interpretation of contracts is to ascertain the intention of the parties.’ [Cit.]” Id.

In the instant case, the only reasonable construction of the listing agreement is that the appellee would be given the exclusive opportunity to sell all houses built by the appellant on the subject property and thereby earn commissions. However, before such an opportunity could arise, the appellant actually had to build houses on the property. That condition not having occurred in this case, the appellee never'became entitled to any commissions, and the trial court should have granted summary judgment for the appellant. Cf. McKissick v. Roth Communications &c., 203 Ga. App. 747 (1) (417 SE2d 696) (1992).

Moreover, even assuming that a breach of the listing agreement occurred, the appellee would be unable to prove its damages. Although the rule against the recovery of speculative damages relates more to the uncertainty of the cause, rather than the measure or extent of the damages, damages must be capable of estimation to a reasonable certainty. Shepherd v. Aaron Rents, 208 Ga. App. 139 (430 SE2d 67) (1993).

Decided July 12, 1994

Reconsideration denied July 27, 1994.

Bush, Wallace & Craig, A. Stephenson Wallace, for appellant.

William A. Trotter III, for appellee.

In the instant case, the listing agreement itself failed to specify any percentage for a commission. Further, any estimate as to the number of houses that the appellant would have built, the values of those houses, and the number of those houses the appellee would have sold would be sheer speculation. Under these circumstances, the appellee’s claim for $140,000 damages was derived solely from its own speculation, and the appellant was thus entitled to summary judgment on this basis as well. See Excavation +, Inc. v. Candler, 209 Ga. App. 351 (433 SE2d 340) (1993).

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.