author: Andrews, Judge.

text:
    A91A2040.
    EMBRYO PROGENY ASSOCIATES et al. v. LOVANA FARMS, INC.
    (416 SE2d 833)
   Andrews, Judge.

Embryo Progeny Associates et al. brought suit against Lovana Farms, Inc., for breach of contract. The trial court granted summary judgment in favor of Lovana Farms holding that the claim was based on a contract for the sale of goods under the sales article of the Uniform Commercial Code (OCGA § 11-2-101 et seq.), and that the suit was barred by the four-year statute of limitation contained in OCGA § 11-2-725.

In 1982, Embryo Progeny’s predecessor in interest and Lovana Farms entered into a lease agreement whereby Embryo Progeny leased a herd of seven registered breeding cattle from Lovana Farms. Using artificial insemination techniques, breeding cattle embryos were transplanted into recipient cattle which would give birth to the offspring. Contemporaneously, the parties entered into a maintenance agreement providing the terms under which Lovana Farms would breed the leased herd and maintain the offspring. Under the maintenance agreement, Embryo Progeny paid a fee to Lovana Farms for each successful transplant, and additional fees for weaning and maintenance of the offspring. Under the terms of the agreements, it is clear that Embryo Progeny obtained title to the embryos and the resulting offspring, and that Lovana Farms retained a security interest to secure payment of the fees.

On January 26, 1985, Lovana Farms and Embryo Progeny executed a mutual release agreement which by its terms superseded the lease and maintenance agreements, and provided for the mutual release of all claims arising out of the prior agreements. The release agreement was a means to terminate the prior agreements, define the existing rights of the parties, and set the terms and conditions for the temporary maintenance and eventual transportation of the offspring embryos and cattle from Lovana Farms to Embryo Progeny. A list of the offspring resulting from the embryo transplants was attached to the release agreement, and Embryo Progeny agreed to pay Lovana Farms for the costs of temporary maintenance and shipping of the cattle.

The record reflects that in December of 1986 Embryo Progeny complained that when the cattle were shipped pursuant to the release agreement, Lovana Farms failed to ship all of the cattle listed. On January 25, 1991, more than four years after the alleged breach, Embryo Progeny filed the action at issue claiming that Lovana Farms breached the release agreement by failing to deliver all the cattle.

1. Embryo Progeny claims the trial court erred by applying the four-year limitation period set out in OCGA § 11-2-725 of the sales article, rather than the six-year limitation period for written contracts under OCGA § 9-3-24. The trial court concluded that the release agreement was a contract for sale of the offspring of the leased cattle, and the action was barred by the four-year limitation period of the sales article.

Although the release agreement, standing alone, was not a sale of the cattle, we nevertheless conclude that the four-year limitation period of the sales article was applicable. In effect, we view the release agreement as part of a sales transaction, the dominate purpose of which was the sale of cattle by Lovana Farms to Embryo Progeny. The breeding process and other maintenance services provided by Lovana Farms under the prior agreements were analogous to a manufacturing process to produce offspring from the leased breeding herd for purchase by Embryo Progeny. Even though services were a substantial part of and essential to the agreements, where “the essence and dominating purpose of the contract” was the production and sale of cattle, it is a contract for the sale of goods. Redfern Meats v. Hertz Corp., 134 Ga. App. 381, 392-393 (215 SE2d 10) (1975); Compare OMAC, Inc. v. Southwestern Machine &c. Works, 189 Ga. App. 42 (374 SE2d 829) (1988) (manufacture and sale of parts from materials supplied by buyer was, in essence, the sale of a service rather than goods).

By reciting that Embryo Progeny “shall retain title,” the release agreement recognized that Embryo Progeny had already obtained title to the offspring at issue under the prior agreements. In superseding the prior agreements, the release agreement did not undertake to restate all of the matters governed by the prior agreements, but only such that were necessary to conclude the sale. After Embryo Progeny obtained title to the offspring pursuant to the breeding and maintenance process conducted by Lovana Farms under the prior agreements, the release agreement concluded the sales transaction by terminating the ongoing breeding process and providing for final delivery of the goods.

Decided March 6, 1992

Reconsideration denied March 19, 1992

Embryo Progeny argues that a sale is defined as “the passing of title from the seller to the buyer for a price . . . and since title to the cattle was not actually transferred under the release agreement, it is neither a sale nor a contract for sale under the sales article of the Uniform Commercial Code. OCGA §§ 11-2-106 (1); 11-2-401. Accordingly, Embryo Progeny contends a breach of the release agreement should be governed by the six-year limitation period applicable to simple written contracts.

Although the cattle were produced and title to them obtained under the prior agreements, the release agreement played an essential part in consummating the sales transaction. “[Transactions in goods” to which the sales article of the Uniform Commercial Code applies, has been given a broader meaning than the sale of goods. See Mail Concepts, Inc. v. Foote & Davies, Inc., 200 Ga. App. 778, 780 (409 SE2d 567) (1991) (citing Redfern Meats, supra, for the proposition that Georgia has extended the reach of the sales article to transactions analogous to sales). As such, we cannot agree that the release agreement was a severable portion of the total sales transaction which should be considered apart from the whole. See Mail Concepts, supra at 780 (sale of goods portion of contract, though set out separately, was not a severable portion of the total sales contract). Since the release agreement formed an indivisible part of the sales transaction, it is governed by the sales provisions of the Uniform Commercial Code. See Flo-Mor, Inc. v. Birmingham, 176 Ga. App. 375, 376 (336 SE2d 264) (1985) (sales contract for ongoing business was an entire transaction from which the sale of goods and services could not be divided); Hudson v. Town & Country True Value, 666 SW2d 51, 52-53 (Tenn. 1984) (though separate contracts executed, sale of business treated as a single transaction for purpose of determining application of Uniform Commercial Code). The trial court correctly concluded that the claim was barred by the limitation period of OCGA § 11-2-725. Smith v. Dixon Ford Tractor Co., 160 Ga. App. 885, 887 (288 SE2d 599) (1982).

2. We need not address appellant’s claim that the summary judgment order was also erroneously based on a misconstruction of the release provisions in the mutual release agreement.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., cocnur.

Andersen, Davidson & Tate, William M. Ray II, for appellants.

Lightmas & Delk, Frank A. Lightmas, Jr., for appellee.

       Sales of cattle and other animals are transactions in goods under the sales article of the Uniform Commercial Code. See Key v. Bagen, 136 Ga. App. 373 (221 SE2d 234) (1975) (sale of horse).

       The seemingly contradictory language of the release agreement providing that Embryo Progeny shall not have title until all shipping charges on the cattle have been paid has only the effect of creating a security interest in favor of Lovana Farms. “Any retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest.” OCGA § 11-2-401 (1).

       Although the terms of the release agreement may not be contradicted by the lease and maintenance agreements, the prior agreements may be consulted to show consistent additional terms which explain the present agreement. OCGA § 11-2-202.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A91A2126.
    LEE FABRICATORS v. COOK.
    (417 SE2d 35)
   Sognier, Chief Judge.

Linda Cook, an employee of Lee Fabricators, injured her lower back in a work-related injury. After treating her back problem for a number of months and referring her to several specialists, Dr. Jubal Watts, her employer-provided physician, referred Cook to Dr. Jack Powell at her request. Dr. Powell concluded that she had become depressed from a combination of factors, including her back injury and her inability to lose weight, and determined further that her weight problem had been exacerbated by her injury. Dr. Powell then referred Cook for psychological and psychiatric treatment and hospitalization (hereinafter “psychiatric care”) and also prescribed a diet program for her. Lee Fabricators denied payment for the psychiatric care, diet program, and certain prescribed medications and filed a notice to controvert payment.

Finding that Cook’s weight gain and depression did stem in part from her work-related injury, the administrative law judge (ALJ) entered an award ordering employer payment for the prior psychiatric care and the diet program but denying payment for future psychiatric care on the basis that such treatment would be duplicative of the counseling provided as part of the diet program. Cook appealed to the State Board of Workers’ Compensation, which affirmed the ALJ’s award except that it also denied payment for the diet program because Cook had failed to cooperate with previous weight loss programs. The Superior Court of Carroll County reversed the denial of payment for future psychiatric care on the ground that OCGA § 34-9-200 (b) did not authorize the Board to order a unilateral change in treatment. We granted Lee Fabricators’ application for discretionary appeal from the superior court’s order.

Appellant contends the superior court erred by reversing the portion of the Board’s award that affirmed the ALJ’s denial of employer liability for future psychiatric care. As appellant notes, the Board award should be upheld if there is any evidence to support a finding in accordance with the contentions of the party that prevailed before the Board. Cobb Gen. Hosp. v. Burrell, 174 Ga. App. 631 (331 SE2d 23) (1985). We agree with the superior court that the statutes concerning the procedure to be followed in changing physicians or treatment control the outcome of this appeal, but we disagree with the conclusion reached by the court.

OCGA § 34-9-201 (c) permits the employee to select a physician from the employer’s panel and authorizes the treating physicians to refer the employee for other medical care, and states further that the employer “shall not be responsible for the charges for medical services furnished or ordered by any physician or other person selected by the employee in disregard of this subsection.” Paragraph (d) of § 34-9-201 provides that “[u]pon the request of an employee or an employer, the board may order a change of physician or treatment as provided under [OCGA ] § 34-9-200.” OCGA § 34-9-200 (b) states that “[ujpon the request of an employee or an employer, the board may in its judgment, after giving notice in writing of the request to all interested parties and allowing any interested party ten days ... to file in writing its objections to the request, order a change of physician or treatment and designate other treatment or another physician[, the expense of which shall be borne by the employer].” Our courts have held that, notwithstanding the seemingly permissive language of OCGA § 34-9-201 (c), OCGA §§ 34-9-200 (b) and 34-9-201 (d) prescribe the exclusive method for changing physicians or treatment, including any change effected by the referral of the employee by the employer-approved physician to another physician pursuant to OCGA § 34-9-201 (c). Holcombe v. Brown Transport Corp., 253 Ga. 719 (324 SE2d 446) (1985); Brown v. Transamerica IMS, 200 Ga. App. 272 (407 SE2d 430) (1991), cert. dismissed. If the parties disregard this procedure, they assume the risk of acting without Board approval and are bound by the consequences of their actions. Brown, supra at 275. Thus, the question on appeal is not, as the superior court stated, whether the Board was authorized to order a change in treatment, but whether the parties complied with the statutory requirements.

In the case at bar, the parties failed to follow this statutory scheme when Dr. Watts referred appellee to specialists and to Dr. Powell, as neither appellant nor appellee invoked the change of physician and treatment procedure. Nonetheless, since appellant acquiesced in those arrangements, the parties are bound by the consequences of their actions and we will not consider their validity. Id. Appellee also failed to comply with the statutory procedure when she sought psychiatric care, which involved changes in both physicians and treatment. Appellant, however, did object to these changes and, like the employer in Holcombe, supra, did deny payment and seek a Board ruling. Compare Brown, supra (employer acquiesced in the change of physicians, paid the fees, and later filed a notice to controvert payment). Accordingly, appellant was entitled to a ruling denying liability for medical expenses for psychiatric care because the change of physicians and treatment was not authorized by the Board. Holcombe, supra at 721.

Decided March 4, 1992

Reconsideration denied March 19, 1992

Gorby, Reeves, Moraitakis & Whiteman, Harold W. Whiteman, Jr., Andrew Nelson, for appellant.

Charles H. Lumpkin, Jr. & Associates, Charles H. Lumpkin, Jr., for appellee.

Since appellant did not appeal the Board’s award of expenses for prior psychiatric care or enumerate as error the superior court’s affirmance of that award, we will not address the validity of that ruling here. Brown, supra. The Board’s denial of liability for future psychiatric care, however, was correct, albeit not on the ground stated by the Board, and thus the Board’s award should have been affirmed by the superior court under the “right for any reason” principle. See Brown, supra at 276 (1). Accordingly, we reverse the ruling of the superior court.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A2195, A91A2196.
    In the Interest of M. J. G. et al., children.
    (416 SE2d 796)
   Andrews, Judge.

These two cases are the separate appeals of the mother and father of M. J. G. and R. D. G. from an order of the juvenile court of Newton County terminating their parental rights in their children under OCGA § 5-11-81. The petition was brought by the Bartow County Department of Family & Children Services (BCDFCS) under OCGA § 15-11-2 (8), after the department had had temporary custody of the children for more than four years. The petition alleged, among other things, that the children were deprived of the parental care and control necessary for their physical, mental, or emotional health or morals, that such deprivation was likely to continue and that both parents had a medically verifiable deficiency in their mental and emotional health such that they were unable to provide adequately for the needs of the children.

Appellants moved from Bartow County to Newton County and in August 1990 filed a motion to change the venue of the case to the Juvenile Court of Newton County, which motion was granted.

After a hearing, the juvenile court found the following. In October 1985, after M. J. G. had suffered a skull and other fractures, a protective services case was opened regarding the child by BCDFCS. Eight months later, in June 1986, M. J. G. was taken to the hospital in a comatose condition and found to be suffering from a number of medical problems including a hematoma on her skull and a rib fracture. Thereafter, BCDFCS filed a deprivation action and obtained legal custody of M. J. G. and she was placed in a foster home.

In December 1986, a second child, R. D. G., was born. A separate deprivation action was filed, BCDFCS obtained custody of the child on December 31, 1986, and the child was placed in foster care immediately. After a brief attempt at placing R. D. G. in a foster home with relatives of the parents failed, the child was placed in the same foster home as M. J. G., where both children have remained. At the hearing, the court found that both children had become emotionally attached to their foster parents.

Case plans focusing on counseling, visitation and payment of child support were developed for appellants on several occasions during the four-year period the children spent in the foster home. Despite the counseling, in 1987, appellant father broke appellant mother’s jaw. In March 1989, the court conducted a judicial review of the case and entered a court ordered case plan designed to reunite the family. That plan included the requirement that appellants submit to psychological evaluations and counseling, that they visit their children every other week and that they pay child support. At the termination hearing, the juvenile court determined that although appellants performed well under the plan at the outset, ultimately they failed to fulfill their court imposed obligations. For instance, despite the father’s various jobs, between May 1989 and January 1991, appellants paid a total of $10 child support. (This was the weekly required amount of child support, although only one-half of the court imposed weekly amount which also included arrearage payment.) They exercised their visitation rights sporadically.

A number of psychological evaluations was performed on appellants and the juvenile court found during the termination hearing that they suffer from a medically verifiable deficiency of mental and emotional health such that they are unable to provide for the physical, mental, emotional or moral condition and needs of the children. The court also found that the counseling which they had received had not significantly changed their psychological health for the better. In addition, the court found that the children were deprived, that the cause of such deprivation was the lack of proper parental care or control, that the deprivation had caused serious physical, mental, emotional or moral harm to the children, and that the deprivation was likely to continue and was unlikely to be remedied and that termination of parental rights was in the best interest of the children.

Case No. A91A2195

1. Case No. A91A2195 is the appeal of appellant father. In his first enumeration of error, he claims that the transfer of the case from Bartow to Newton County was improper since the latter court did not have custody of the children.

Without even addressing the specific venue provisions of OCGA § 15-11-15, we find that appellants are estopped from raising this issue. The case was transferred from Bartow County, where it was originally filed, to Newton County pursuant to appellants’ own motion. It is established that venue rights can be waived and appellants waived any objection to venue in Newton County when they moved that the venue be transferred to that county. See generally Holcomb v. Ellis, 259 Ga. 625 (385 SE2d 670) (1989); see also OCGA § 9-11-46.

2. In both his second and third enumerations of error, appellant father challenges the sufficiency of the evidence. Specifically, in his second enumeration of error, he claims that the trial court erred in finding that BCDFCS made reasonable efforts to reunite the family and claims that reasonable efforts mandated under federal law were not followed. “On review, our duty is to decide whether any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost.” (Citations and quotations omitted.) In the Interest of B. M., 184 Ga. App. 291, 292 (361 SE2d 269) (1987); see also In the Interest of K. P. E., 196 Ga. App. 759 (397 SE2d 39) (1990). Appellant’s arguments in this enumeration are unsupported by the evidence and have no merit.

3. In his third enumeration of error, appellant claims that the trial court erred in finding that there was clear and convincing evidence of parental misconduct or inability as required by OCGA § 15-11-81. Citing In re N. F. R., 179 Ga. App. 346 (346 SE2d 121) (1986), appellant argues, among other things, that his parental conduct was not egregious and that there was insufficient evidence of his individual present unfitness.

We do not agree and find that there was clear and convincing evidence before the court on which termination of appellant father’s parental rights could be based and thus the trial court’s decision with respect to the father is affirmed. See In the Interest of A. L. T., 198 Ga. App. 477 (402 SE2d 97) (1991); In the Interest of A. T., 187 Ga. App. 299 (1) (370 SE2d 48) (1988).

Case No. A91A2196

4. In her first enumeration of error, appellant mother states that she incorporates all of the father’s enumerations. To the extent that the discussion above requires no further specific argument by the mother, this enumeration is without merit for the reasons outlined above. To the extent that the enumerations above required specific argument, these enumerations are deemed abandoned since they are unsupported by argument or citation of authority. See Court of Appeals Rule 15 (c) (2); McQueary v. Atlanta Airlines Terminal Corp., 198 Ga. App. 318, 320 (2) (401 SE2d 333) (1991).

Decided March 2, 1992

Reconsideration denied March 19, 1992

The Johnson Firm, Horace J. Johnson, Joab L. Kunin, for appellants.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Staff Attorney, Vaughan & Tilley, Velma C. Tilley, for appellee.

5. Appellant mother’s second, third and fourth enumerations are supported by one general citation regarding parental rights termination, but are unsupported by any specific argument or citation of authority and are deemed abandoned. Court of Appeals Rule 15 (c) (2); McQueary, supra.

Judgments affirmed.

Sognier, C. J., and McMurray, P. J., concur.


author: Carley, Presiding Judge.

text:
    A90A2030.
    BROWN et al. v. PROGRESSIVE PREFERRED INSURANCE COMPANY.
    (417 SE2d 741)
    Decided March 19, 1992.

      A. Newell Nesmith, for appellants.

      J. William Trunnell, Jr., Warren C. Grice, Jones, Cork & Miller,

      Howard J. Strickland, Jr., Anderson, Walker & Reichert, R. Harold McCard, Jr., Chambless, Higdon & Carson, Mary M. Katz, for appellee.
   Carley, Presiding Judge.

In Brown v. Progressive Preferred Ins. Co., 198 Ga. App. 599 (402 SE2d 303) (1991), we reversed the trial court’s grant of appelleeplaintiff’s motion for summary judgment in this declaratory judgment action. On certiorari, however, the Supreme Court reversed. Progressive Preferred Ins. Co. v. Brown, 261 Ga. 837 (413 SE2d 430) (1992). Accordingly, our original judgment is vacated and the judgment of the Supreme Court is hereby made the judgment of this court. The judgment of the trial court is affirmed.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


author: Johnson, Judge.

text:
    A91A1622.
    A91A1623.
    SHUMAN v. STRICKLAND TRANSPORT-LEASING COMPANY et al. FIELDS v. SHUMAN.
    (416 SE2d 885)
   Johnson, Judge.

This case is before the court on appeal from the. trial court’s denial of motions for a new trial filed by both parties. Shuman brought suit against Strickland Transport-Leasing Company (Strickland) and others to recover actual and special damages for injuries he had allegedly sustained when a tractor trailer rig driven by Shuman was involved in a collision with another tractor trailer rig owned by Strickland and being operated by its employee, King S. Fields. The collision occurred on March 20, 1989, near Pembroke, Georgia, as Shuman was attempting to turn left off U. S. Highway 280 onto County Road 44. Strickland responded denying negligence and asserted a counterclaim alleging that Shuman’s failure to exercise due care prior to initiating the turn was the direct and proximate cause of the collision. Strickland sought actual damages in an amount to be equal to or in excess of the damages sought by Shuman. The case was tried before a jury which returned a verdict on a specially drafted verdict form in favor of the defendant Strickland on the main claim and Shuman on the counterclaim.

Shuman filed a motion for new trial originally based on general grounds, and later amended asserting that several jurors had improperly failed to respond to an inquiry on voir dire. Voir dire was not transcribed and the parties do not agree on whether the question posited to prospective jurors during voir dire was whether any of them “knew” or “knew of” Fields. The trial court allowed the testimony of the jurors regarding that issue at a hearing on the motion for new trial. The motion was denied. Strickland also filed a motion for new trial on general grounds which was denied.

Case No. A91A1622

1. Shuman argues that the trial court erred in failing to enter an order stating that he could not recall the proceedings pursuant to OCGA § 5-6-41 (g). No transcript of the voir dire portion of the proceedings exists. The parties do not agree on whether the question asked of the panel was whether they “knew” King S. Fields, or if they “knew of” him. “ ‘Where, as here, there is no transcript . . . and no agreed statement of the facts [is] furnished [cit.] the appellate court is bound to assume that the trial court’s findings are supported by sufficient competent evidence (cit.) for there is a presumption in favor of the regularity of all proceedings in a court of competent jurisdiction. (Cit.)’ ” Siegel v. Gen. Parts Corp., 165 Ga. App. 339, 340 (301 SE2d 292) (1983), citing Bhatia v. West Cash &c. of Savannah, 157 Ga. App. 145 (276 SE2d 656) (1981). Here, the trial judge permitted an appearance by all of the jurors that Shuman’s counsel felt may have improperly failed to respond affirmatively to a question concerning “knowledge of” King S. Fields, a question which may or may not have been the one asked during voir dire. Pursuant to OCGA § 5-6-41 (g) the trial judge would be required to enter an order if he could not recall what transpired at the hearing. Here, the judge did not affirmatively state that he did not recall the proceedings so the absence of such an order was not error. Where, as here, the error enumerated by Shuman is dependent on a transcript of evidence, and no transcript or agreement of counsel as to the proceedings exists, it cannot be reviewed by this Court. See, e.g., Ross v. Ninety-Two West, Ltd., 201 Ga. App. 887, 891 (412 SE2d 876) (1991); McClaskey v. Jiffy Lube, Inc., 197 Ga. App. 537 (398 SE2d 825) (1990); Burns v. Barnes, 154 Ga. App. 802 (270 SE2d 57) (1980); Mays v. Safeway Fin. Co., 139 Ga. App. 229 (228 SE2d 319) (1976).

2. Shuman’s second enumeration of error, that the denial of his motion,, for new trial violated his right to an impartial jury is without merit. Shuman failed to establish with any degree of certainty the exact question asked during voir dire. Therefore he could not establish that any prospective juror improperly failed to respond. He was permitted an opportunity to bring each of the jurors back into court to testify on that exact issue, however, and all four indicated that they had rendered a fair and impartial verdict in the case.

3. Shuman’s amended enumeration of errors and brief filed on January 22, 1992, was not timely filed and therefore the issues contained therein cannot be considered. Burke v. State, 153 Ga. App. 769, 771 (7) (266 SE2d 549) (1980).

Case No. A91A1623

4. Strickland has filed a cross-appeal enumerating as error three issues concerning the form of the verdict. The verdict form consisted of three sentences: “1. We the jury, find for the plaintiff in the amount of $_1; 2. We the jury, find for the defendants; and 3. We the jury, find for the defendant, Solomon Fields, on the cross action in the amount of $__” At the top of the form was written “(Strike the 2 which you do not select).” The jury returned the verdiet form with sentences 1 and 3 scratched out. Strickland enumerates as error the form of the verdict and the instruction by the trial court to select one of the three options as the verdict of the jury. The issues presented to the jury in the case were not complex. The trial court, in its charge to the jury explained the effect of choosing the various options on the verdict form. The jury asked the court for clarification after it began deliberations, seeking to establish that a choice of option number two, “We the jury, find for the defendants” would mean that there would be no monetary award to anyone. That question being answered by the court in the affirmative, the jury returned its verdict.

Decided March 19, 1992.

Branan & Brogdon, Wallace M. Brogdon, Jr., for appellant.

Newton, Smith, Durden, Kaufold & McIntyre, Wilson R. Smith, Hunter, Maclean, Exley & Dunn, Lee C. Mundell, Kirby C. Gould, for appellees.

“Verdicts shall have a reasonable intendment and shall receive a reasonable construction. They shall not be avoided unless from necessity.” OCGA § 9-12-4. It is clear from the request for clarification that the jury knew how it wanted to find in the case. All presumptions being in favor of the validity of the jury’s verdict, and there being no evidence that the intent of the jury was ambiguous, the verdict should stand.

5. Similarly, the supplemental enumeration of errors and brief filed by Fields on February 3, 1992, was not timely filed and therefore the issues contained therein cannot be considered. Burke, supra.

Judgments affirmed.

Carley, P. J., and Beasley, J., concur.


text:
    A91A1685.
    SUBSEQUENT INJURY TRUST FUND v. KNIGHT RIDDER NEWSPAPERS-MACON TELEGRAPH & NEWS et al.
    (416 SE2d 887)
   Andrews, Judge.

The application to appeal by the Subsequent Injury Trust Fund was granted to consider whether the superior court’s order exceeded the scope of review.

Keene, an employee of Knight Ridder Newspapers, suffered a cerebral concussion when he was mugged on the job on November 17, 1986. Thereafter, he suffered from headaches and mood swings. He was given a five percent permanent partial disability rating as a result. He returned to work for the employer in February 1987 in a less emotionally stressful position. He was severely injured in an automobile accident while working on December 27, 1987. As a result of that accident, Keene suffered severe facial lacerations, a fractured temporal bone, head trauma, loss of vision, fractures of both orbital rims, internal injuries, and leg and pelvis injuries.

After this injury, Keene continued to experience mood swings and headaches. As a result, employer/insurer applied to SITF for reimbursement of certain workers’ compensation benefits paid to Keene.

SITF defended on the basis that there had been no merger (OCGA § 34-9-351 (1) (b)) and denied liability for medical expenses not caused by or related to the pre-existing disability. The ALJ found that there was merger between the 1986 and 1987 head injuries as far as the mood swings and headaches were concerned, concluding that the emotional problems were materially, substantially, and cumulatively greater than would have resulted had the permanent impairment from the 1986 mugging not existed. Reimbursement by SITF was ordered and the ALJ declined to apply OCGA § 34-9-364, which would have required apportionment of medical expenses resulting from the merger of the preexisting and subsequent injuries “where there are clear and unequivocal facts to establish that the subsequent injury to the permanently impaired employee was not caused by or in any way related to the employee’s preexisting disability.”

Upon appeal to the board, SITF argued these same grounds. With regard to the OCGA § 34-9-364 ground, the contention was that as a matter of law, the ALJ should have applied the provisions to exclude reimbursement for those medical conditions incurred that have no relationship to the prior impairment and which were caused solely by the subsequent injury.

The board, upon de novo review, adopted the findings of fact and conclusions of law of the ALJ, and additionally found that SITF “is not liable for reimbursement of those medical expenses which are caused solely by, or related to, the employee’s injuries of November 17, 1986.” SITF moved for reconsideration, on the basis that the decision was subject to differing interpretations because it did not set out the grounds for apportionment of those medical expenses which would have been incurred regardless of the prior impairment, i.e., those occasioned solely by the subsequent injury.

On appeal, the superior court found that since the employer/insurer had not sought reimbursement for expenses solely attributable to the 1986 accident, the board’s conclusion was outside its authority to act. Further, the court held that “although the SITF does not seek this conclusion here, this court, on review, sets aside the decision of the Full Board . . . insofar as it seeks to modify the award of the ALJ and hereby reinstates the ALJ’s award. The ALJ decided not to applyOCGA § 34-9-364, and this was a proper conclusion based on her findings of fact.”

Decided March 19, 1992.

Michael J. Bowers, Attorney General, Jeffrey L. Milsteen, Senior Assistant Attorney General, K. Prabhaker Reddy, Staff Attorney, Harrison, Harrison & Llop, Rita J. Llop, for appellant.

Irwin, Bladen, Baker & Russell, Braxton A. Bladen, Edwin G. Russell, Jr., for appellees.

1. Upon appeal from the decision of the ALJ, the board conducted its de novo proceeding, adopted the findings of fact and conclusions of law of the ALJ with the addition of the disputed proviso, as was its prerogative. Gatrell v. Employers Mut. &c. Ins. Co., 226 Ga. 688, 689 (177 SE2d 77) (1970); Rice v. Ciba Vision Care, 194 Ga. App. 528, 529 (1) (391 SE2d 30) (1990). The superior court, upon appeal, is authorized only to affirm, reverse or, under certain circumstances, remand to the board for further hearing. Willis v. Holloway, 154 Ga. App. 3 (267 SE2d 795) (1980).

Because the court went beyond this mandate, the judgment must be reversed with direction that the superior court confine its ruling to the dictates of OCGA § 34-9-105 (b).

2. The remaining enumeration, dealing with the application of OCGA § 34-9-364, is not ripe for our consideration, pending the superior court’s action.

Judgment reversed with direction.

Sognier, C. J., and McMurray, P. J., concur.


author: Cooper, Judge.

text:
    A91A1730.
    SUMMIT-TOP DEVELOPMENT, INC. et al. v. WILLIAMSON CONSTRUCTION, INC.
    (416 SE2d 889)
   Cooper, Judge.

Appellants, developers of a housing subdivision, retained appellee for grading, clearing and sewer installation on the project in March of 1988. Appellee billed appellant Summit-Top Development, Inc. (“Summit-Top”) monthly for work performed and was paid accordingly until appellee submitted an invoice on September 8, 1988 for $342,303.90 for the blasting and removal of mass rock. Appellant James Ross (“Ross”), a principal in Summit-Top and the corporation’s engineer, expressed doubt that appellee’s actual blasting work justified the amount billed. The parties met in an effort to come to an understanding regarding the invoice; however, their efforts were unsuccessful. On September 24, 1988, another invoice was submitted by appellee in the amount of $52,156.80, which represented the drilling and blasting of rock by appellee’s subcontractor. Appellants again disputed the bill, refused payment, and the parties were unsuccessful in reaching an understanding. Appellee then ceased work on the project and filed a claim of lien against the corporate property for $394,460.70, the sum of the unpaid bills. Thereafter, appellee brought an action to recover the outstanding payments from appellants; however, realizing that the lien included charges for work which appellee had not performed, appellee filed a release of lien removing $47,421.62 from the lien, which was consented to by appellants. The case proceeded to trial before a jury. The trial court denied appellants’ motion for directed verdict argued at the close of the evidence, and the jury returned a verdict for appellee awarding $347,039.08 in actual damages, a special lien, attorney fees and prejudgment interest. This appeal followed.

1. Appellants enumerate as error the trial court’s denial of their motion for directed verdict on the ground that the claim of lien included charges for work appellee had not performed and therefore was not in strict compliance with Georgia lien statutes. Appellants contend that appellee deliberately included erroneous charges in the lien and could not establish at trial how the amount discharged from the lien was determined; therefore, appellants argue that appellee cannot rely on an exception to the lien statutes which allows easily separable nonlienable items to be omitted from a lien and still preserve the lien. Sears Roebuck & Co. v. Superior Rigging &c. Co., 120 Ga. App. 412 (4) (170 SE2d 721) (1969). Appellants apparently are not contesting the sufficiency of the evidence supporting the jury’s award of the amount of the lien as amended but dispute only the initial inclusion and computation of the erroneous charges.

The evidence adduced at trial reveals that equipment and materials necessary to complete the work included in the invoice were-present on the jobsite; that appellee was ready to proceed with the work when it learned that it would not be paid for work already performed; that appellant, Kermit Sayre (“Sayre”), another principal in Summit-Top who served as the project manager, instructed appellee in how to prepare invoices to maximize its draw from the account established to fund construction; and that the September 8, 1988, invoice was prepared according to those instructions. The invoice was accompanied by 34 pages of documentation illustrating the basis for the charges, and it appears that appellee’s president, who prepared the invoices, the original claim of lien and the release of property, culled the documents prior to trial and easily computed the amount representing work not performed which was deducted from the lien, with appellants’ consent. It is worthy of note that appellants demonstrated the ease with which the nonlienable charges could be separated from the lienable charges in their own brief to this court. “ ‘The standard of review of the trial court’s denial of a motion for directed verdict in a civil case is the “any evidence” standard. [Cit.]’ [Cit.]” CSX Transp. v. Barnett, 199 Ga. App. 611 (2) (405 SE2d 506) (1991). In our view, there was sufficient evidence supporting appellee’s exclusion of the nonlienable charges from the original claim of lien. See Taverrite v. Lowe’s of Franklin, 166 Ga. App. 346 (1) (304 SE2d 78) (1983). Moreover, we find that the initial inclusion of the charges in the September 8, 1988, invoice was the result of appellants’ own instructions and that any difficulty experienced by appellants in securing a bond for discharge of the lien was ultimately relieved by appellee’s reduction of the amount of the lien and the corresponding release of the property, which occurred well in advance of the trial of the case.

2. Appellants also contend the trial court erred in not directing a verdict in their favor because appellee abandoned the project fearing non-payment and did not demonstrate substantial compliance with the contract in order to enforce its lien pursuant to OCGA § 44-14-361.1 (a) (1). Appellants argue that the record demonstrates that they did not flatly refuse to pay the invoices but attempted to reach a compromise with appellee; that they had paid all previous invoices; that funds were available for the completion of the project; that studies of the area did not indicate that the area contained as much mass rock as urged by appellee; and therefore that appellants were justified in not paying the full amount requested by appellee.

“One seeking to foreclose a contractor’s lien for labor and materials must show a substantial compliance with the contract. [Cits.] If the completion of the contract was prevented by the defendant, this is equivalent to a completion of the contract as a remedial element. [Cit.] ... An abandonment of the work before compliance with the contract, upon a mere apprehension that he will not be paid at the time for payment, is unauthorized and defeats the contractor’s claim of lien. [Cit.]” MacLeod v. Belvedale, Inc., 115 Ga. App. 444 (1) (154 SE2d 756) (1967). Appellants’ recitation of the evidence adduced at trial omits two incidents which shed more light on the circumstances under which appellee left the job. The record reveals that at the meeting following the submission of the September 8, 1988 invoice, Ross and Kell Williamson, Sr. (“Williamson”), appellee’s president, had a heated exchange in which Ross accused appellee of blasting dirt instead of rock and told Williamson: “Leave. Get all your damn equipment and leave.” Appellee then removed the majority of its equipment and employees off the jobsite. Williamson testified that he understood that Ross was firing appellee. In a subsequent meeting, despite the testimony of a Trust Company Bank official who indicated that the bank loaned Summit-Top $2.3 million for the acquisition and development of the subdivision and that $1.1 million was designated for development, Williamson testified that Ross showed him a draw sheet for an acquisition and development loan and said that Summit-Top had no money to pay appellee. Williamson said that after personally looking at the draw sheet he concluded Summit-Top had no money. The foregoing evidence supports a finding that appellee was prevented from completing the job by appellants’ actions; therefore, appellee’s cessation of work was not an abandonment of the contract. See Marathon Oil Co. v. Hollis, 167 Ga. App. 48 (4) (305 SE2d 864) (1983). Accordingly, the trial court did not err in denying appellants’ motion for directed verdict. CSX Transp., supra.

3. Appellants also contend that the verdict against appellants Ross and Sayre, personally, was contrary to the weight of the evidence. Appellants argue that the evidence failed to establish that the individual defendants abused the corporate form. Appellee contends the evidence demonstrated that Ross was the driving force behind the refusal to pay appellee; that appellants waited until appellee performed the bulk of the work necessary to complete the subdivision and then refused to pay; that Ross then lied to appellee about the amount of money available to pay appellee to avoid payment of a legitimate claim; that Sayre and Ross had created other corporations to develop properties which also owe large sums to various subcontractors; and that such course of conduct shows an abuse of the corporate form and the use of corporations to defeat justice, perpetrate fraud and to constantly evade statutory and contractual responsibility.

“ ‘While upon equitable principles the legal entity of a corporation may be disregarded,’ (cit.), great caution should be exercised by the court in doing so. [Cit.] . . . [I]n order to disregard the corporate entity because a corporation is a mere alter ego or business conduit of a person, it should have been used as a subterfuge so that to observe it would work an injustice. To prevail based upon this theory it is necessary to show that the shareholders disregarded the corporate entity and ‘made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist.’ [Cit.] ‘ “The concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party ‘has over extended his privilege in the use of a corporate entity in order to defeat justice, perpet[r]ate fraud or to evade contractual or tort responsibility.’ ” ’ [Cit.]” (Indention omitted.) Amason v. Whitehead, 186 Ga. App. 320, 321-322 (367 SE2d 107) (1988). The evidence demonstrates that Sayre, and to a limited degree, Ross, were principals in several similar projects which previously failed and left in their wake numerous unpaid contractors and subcontractors whose recourse appears to be enforcement of materialman’s liens against insolvent corporations. Sayre’s testimony demonstrates his awareness of the protection against personal liability afforded by incorporation, that he and Ross are involved in a pattern of practice wherein the corporate entity is a mere instrumentality to evade contractual responsibility and that appellee is now a victim of that course of conduct. It is our conclusion, therefore, that the verdict against Sayre and Ross personally was not against the weight of the evidence.

Decided March 19, 1992.

Moore & Rogers, John H. Moore, Sara J. Murphree, for appellants.

Dupree, Johnson & Poole, Hylton B. Dupree, Jr., for appellee.

In addition, the jury was charged as follows: “Summit-Top is being sued as a corporation, and also James S. Ross and Kermit D. Sayre, individually. I charge you that it is proper to disregard the corporate entity and pierce the corporate veil when it is established that the stockholders disregarded the corporate entity, made the corporation a mere instrumentality for the transaction for the stockholder’s own affairs; that there is such unity of interest in ownership that the separate personalities of the corporation and the owners no longer exist; and to adhere to the doctrine of corporate entity would promote injustice or protect fraud.”

Appellants offered no objection to the giving of this charge which gave rise to the verdict against Sayre and Ross. OCGA § 5-5-24 (a). Appellants also cannot be heard to complain that the verdict form was defective, as no objection was raised below. Americani v. Sidky, 199 Ga. App. 823 (1) (406 SE2d 259) (1991).

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Beasley, Judge.

text:
    A91A1793.
    HAYNES v. McCAMBRY et al.
    (416 SE2d 893)
   Beasley, Judge.

Haynes sued McCambry and Doe to recover damages for injuries allegedly sustained when McCambry’s car collided with the car he was driving. The complaint alleged that McCambry and Doe, an unknown driver of a third car, were jointly and severally negligent and liable for plaintiff’s injuries. Haynes served the complaint on Aetna Casualty & Surety Company, the uninsured motorist carrier which covered the vehicle plaintiff was operating, in compliance with OCGA § 33-7-11 (d). Aetna defended in its own name. Haynes appeals the judgment and denial of his motion for new trial following a jury verdict in favor of both defendants.

As plaintiff was driving on a multi-lane interstate highway through downtown Atlanta in misty weather conditions, he observed what he described as a small, imported car “zigzagging” and traveling at a high rate of speed behind him. Plaintiff moved into the far left lane which was clear of traffic, while the unidentified (Doe) vehicle passed him in the second lane to the right. At about the same time, defendant McCambry, who was driving adjacent to plaintiff in the lane to his right, veered to the left and hit plaintiff’s car in the area of the right fender. McCambry had observed the Doe car behind him exceeding the speed limit and zigzagging in and out of traffic for “at least five minutes.”

After the collision, McCambry stated to plaintiff that the Doe vehicle had “cut in front of him,” requiring him to “veer over into [plaintiff’s] lane to avoid hitting [it].” McCambry testified that he had no time to brake or to signal, and had he not moved into plaintiff’s lane, he would have had “an accident with this phantom vehicle and probably not with [plaintiff].”

Approximately two years after the accident, plaintiff underwent an anterior cervical diskectomy to correct a herniated disk, which injury he contends proximately resulted from the collision.

1. Plaintiff contends that the trial court erred in denying his motion for new trial on the general grounds.

“The appellate court will not disturb the trial court’s refusal to grant a new trial if there is any evidence at all to support the verdict, however slight, and regardless of what may be the character of the witnesses. [Cit.] ‘Our function is to review the sufficiency of the evidence, and not to determine its weight. Though the evidence might have authorized a different verdict... or the verdict is supported by only slight evidence ... or the evidence is conflicting or preponderates against the verdict . . . where no material error of law appears, this court will not disturb the trial judge’s judgment in overruling the motion for new trial.’ [Cit.]” McBowman v. Merry, 104 Ga. App. 454, 455 (1) (122 SE2d 136) (1961).

“To state a cause of action for negligence in Georgia, the following elements are essential: ‘(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.’ [Cit.]” Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982).

We assume for the purposes here, without deciding, that defendants, either jointly or severally, breached a legal duty of care to plaintiff as a matter of law. On the same basis, we also assume that claimant fulfilled the requirements of OCGA § 33-7-11 (b) (2), with respect to the John Doe defendant, as a matter of law. Nevertheless, in the absence of a legal causal relationship between defendants’ conduct and plaintiff’s injuries, a compensable claim is not established.

“ ‘(O)n appeal the evidence is to be construed to sustain rather than to destroy, the verdict, for every presumption and inference is in its favor. (Cit.)’ [Cit.]” DeKalb County Hosp. Auth. v. Theofanidis, 157 Ga. App. 811 (1) (278 SE2d 712) (1981). The evidence viewed in such a light showed that plaintiff suffered no apparent injury after the impact with the McCambrys’ car. He was able to drive Mr. and Mrs. McCambry to the body shop where their car had been towed, and he then returned to work for the remainder of the day. On the following day he presented at Northside Hospital with complaints of light-headedness and dizziness and was examined and released. Approximately one month later, he was seen by a neurologist with complaints of headaches and arm pain. His neurological examination at that time was normal as were the results of a CT scan and electromyelogram. The neurologist testified that plaintiff had no complaints of neck pain and exhibited no indication of a herniated disk or nerve root compression.

In October of 1987, plaintiff began receiving weekly chiropractic adjustments, which continued for approximately six months. He was also examined during that month by a second neurologist who prescribed magnetic resonance imaging testing, with negative results. Approximately one year later he was seen by a neurosurgeon. Tests conducted at this time revealed the presence of a small herniated disk. Corrective surgery was performed on March 16, 1989.

There were numerous conflicts in plaintiff’s testimony-. On deposition and in response to interrogatories, he denied having been involved in any other automobile accidents or experiencing neck or back problems prior to the present collision. His trial testimony revealed that he had sustained back injuries in an automobile accident in 1979. He had been involved in five other motor vehicle collisions from 1985 until the present one, including a rear-end incident 30 days following the collision with McCambry’s car.

Although on deposition he denied having received chiropractic treatment prior to October 1987, he admitted at trial that he was treated by a chiropractor in January 1986 with complaints of numbness and pain in his neck and shoulder, sustained as a result of regular physical exercise. He also admitted failing to disclose to his treating physicians his involvement in the other collisions and injuries sustained therein.

The expert medical evidence disclosed the following. No diagnosis was made of a herniated disk until approximately 18 months after the incident, although numerous examinations and tests were conducted during that time period. Upon giving his medical history, plaintiff specifically denied any pre-existing back and neck injuries. Although the neurosurgeon who performed the diskectomy was of the opinion that it would be reasonable to assume that the disk herniation resulted from the incident, he stated that, “I would have to use the patient’s history to determine the onset of his problem,” and there would be “no way of corroborating that” information. He further stated that the herniated disk could have occurred prior to or after the accident and that chiropractic manipulation can worsen a pre-existing cervical disk injury. It was further shown that plaintiff had been actively engaged in an intensive exercise program from 1985 through 1988 and that exercise could also exacerbate such a condition.

The neurologist who treated plaintiff during the four months following the collision testified there was no indication of a herniated disk or nerve root compression at that time. This physician’s opinion was that the herniated disk diagnosed in 1988 was unlikely to have been related to an injury sustained in March of 1987. See Division 2, infra.

“ ‘On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. . . .’ Prosser and Keaton on Torts (5th ed. 1984), § 41, p. 269.” Anneewakee, Inc. v. Hall, 196 Ga. App. 365, 367 (396 SE2d 9) (1990).

The jury was authorized to conclude that plaintiff failed to establish a legal causal connection between defendants’ conduct and his resulting injuries and that any damage he incurred did not result from the alleged breach of a legal duty owed him by defendants. Bradley Center, supra at 200.

2. Plaintiff contends that the court erred in refusing to allow the testimony of a vocational rehabilitation specialist for the purpose of assessing future employability. The witness’ name had not been included in response to an interrogatory calling for the identification of each expert to be called as a witness at trial, nor did it appear on the pre-trial list of witnesses. The offer of proof shows that the witness would testify that plaintiff no longer had the physical stamina required of a car salesman (his occupation at the time of the collision) and that he would require additional training to acquire work at his former income level. If it was error to exclude the witness, see Jordan v. Santa Fe Engineering, 198 Ga. App. 600 (1) (402 SE2d 304) (1991), the testimony was merely cumulative of that of the other medical experts and of plaintiff himself. It would have added little to plaintiff’s case. Its exclusion affords no basis for reversal. See generally Klemme Cattle Co. v. Westwind Cattle Co., 156 Ga. App. 353 (1) (274 SE2d 738) (1980).

3. Plaintiff contends that the trial court erred in overruling his objection to the form of a hypothetical question posed to a medical expert on deposition, which testimony was read at trial. The physician was asked whether he had “an opinion based upon a reasonable degree of medical certainty ... as to whether or not the herniated disk discovered ... in October of 1988 was absolutely related to the March 1987 accident or whether it could have arisen from some other cause or condition.”

Plaintiff takes issue with the word absolutely as imposing an improper standard of causation. However, the deponent did not respond to the “absolute” language of the question, but instead stated his opinion that “the herniated disk found in 1988 is unlikely to be related to an injury [sustained in] April of 1987” and gave his basis for that opinion. No objection was made during the deposition to the form of the question or to the responsiveness of the answer, although any such alleged error could have been “obviated, removed, or cured if promptly presented. . . .” OCGA § 9-11-32 (d) (3) (B). Failure to so object constitutes a waiver. Id. Cf. Bryant v. Food Giant, Inc., 184 Ga. App. 155 (1) (361 SE2d 38) (1987), where there was an agreement of the parties with respect to reservable objections.

4. Plaintiff challenges the giving of the following charge: “One who is confronted with a sudden emergency which is not created by his own fault and is without sufficient time to determine accurately and with certainty the best thing to be done, is not held to the same accuracy of judgment as would be required of him if he had more time for deliberation. The requirement of such a person is that he act with ordinary diligence under all peculiar facts and circumstances surrounding the situation.”

Although McCambry had observed the Doe vehicle for several minutes before the collision, he testified that when that vehicle moved into his lane, “I had no time to blow my horn. I had no time to put on brakes. I had no time to signal. I came over because I thought I had space in front of Mr. Haynes to get over without causing an accident. If I had not done so, I would have [had] an accident with this phantom vehicle and not with Haynes.” The present collision was one which “occurred] immediately following the realization of the peril or crisis and before there [was] time for mature reflection.” Ford v. Pinckney, 138 Ga. App. 714, 716 (3) (227 SE2d 430) (1976). A charge on sudden emergency was authorized. See Sconyers v. Williams, 198 Ga. App. 673 (3) (402 SE2d 775) (1991); Wallace v. Ramey, 191 Ga. App. 293 (381 SE2d 434) (1989); Ray v. Anderson, 189 Ga. App. 80 (2) (374 SE2d 819) (1988); Howard v. Jones, 187 Ga. App. 756 (2) (371 SE2d 196) (1988).

Decided March 19, 1992.

Goodman & Goodman, Michael D. Goodman, Barry Goodman, for appellant.

Cone & Shivers, Kenneth F. Dunham, Harper, Waldon & Craig, Russell D. Waldon, for appellees.

5. The failure to give plaintiff’s request to charge as to consequential damages is at most harmless error where the jury returned a verdict in favor of the defendants. Fulton Nat. Bank of Atlanta v. Marshall, 245 Ga. 745, 747 (267 SE2d 225) (1980); Big Bend Agri-Services v. Bank of Meigs, 174 Ga. App. 493 (4) (330 SE2d 422) (1985).

Judgment affirmed.

Sognier, C. J., and Carley, P. J., concur.


text:
    A91A1933.
    GOLDEN PEANUT COMPANY v. HUNT et al.
    (416 SE2d 896)
   Johnson, Judge.

This appeal arises from the trial court’s order granting the appellees’ motion for partial summary judgment.

Charles Mason Hunt (Hunt) entered into a contract to sell his 1990 crop year peanuts to the Golden Peanut Company (Golden). Golden supplied the contract form, which states that it is to constitute the complete and exclusive agreement between the parties and that, “No parol evidence shall be relevant to supplement or explain this agreement.” The contract provided for deferred pricing of the peanuts and that if Hunt and Golden could not reach a mutually acceptable price, the matter would be resolved in accordance with paragraph three of the “Terms and Conditions” portion of the contract. Paragraph three provides: “(a) Producer shall obtain from a third party a written, bona fide and verifiable offer to purchase Other Peanuts for a sum certain on the date of delivery; (b) Before accepting the third party offer, Producer shall offer to sell Other Peanuts to Handler on the same terms and conditions as the third party offer; (c) Handler will have 24 hours to accept Producer’s offer, then Producer may sell such peanuts to the third party upon the same terms and conditions as were offered to the Handler.”

Golden and Hunt were unable to reach a mutually acceptable price for the peanuts. Hunt then obtained a written offer to purchase the peanuts at an agreed price from Miller Bros. Farms, Inc. (Miller). Miller was not a federally registered peanut handler. Before accepting Miller’s offer, Hunt offered to sell the peanuts to Golden on the same terms as Miller’s offer. Golden refused this offer and filed an action against Hunt for specific performance, declaratory judgment and injunctive relief. The trial court issued a temporary restraining order compelling delivery of the peanuts to Golden, with which Hunt complied. Miller intervened and with Hunt filed a motion for partial summary judgment asking the court to rule that Miller’s offer to purchase Hunt’s peanuts was bona fide. Golden, with its response to the motion, filed affidavits asserting that in the peanut industry the words “bona fide offer” in a peanut contract mean an offer from a federally registered handler. The trial court granted the motion for partial summary judgment and ruled that Miller’s offer was bona fide. Golden appeals from that ruling.

1. Golden contends that Miller’s offer to purchase Hunt’s peanuts was not bona fide because Miller was not a federally registered peanut handler. Golden’s first and second enumerations of error are premised on the assumption that federal regulations governing the peanut trade prohibit and render illegal an offer to purchase peanuts by an unregistered peanut handler. This Court rejects that premise and finds that Golden’s first and second enumerations of error are therefore without merit.

While federal regulations do penalize peanut handlers for not registering, they neither prohibit unregistered handlers from offering to purchase peanuts, nor render such offers illegal. In fact the regulations anticipate purchases and offers to purchase by unregistered handlers. 7 CFR § 1446.77 treats unregistered handlers just like registered handlers, providing that they are subject to all penalties and remedies that apply against registered handlers and that they shall be penalized for nonregistration. Moreover, 7 CFR § 729.422 actually sets forth procedures to be followed by producers marketing peanuts to unregistered handlers. These regulations envision participation in the peanut trade by handlers who are not properly registered.

Miller may be subject to penalties for not registering as a peanut handler; however, its offer to purchase Hunt’s peanuts clearly was not prohibited or rendered illegal by the federal regulations. Accordingly, the trial court’s ruling that Miller’s offer was bona fide does not contravene the regulations or cause the commission of an illegal act.

2. Also without merit is Golden’s third enumeration of error. Golden contends the trial court erred by failing to consider parol evidence of trade usage, pursuant to OCGA § 11-2-202 (a), in interpreting the contract. The appellant argues that the trial court should have considered its affidavits stating that it is common knowledge in the peanut industry that the words “bona fide offer” in a peanut contract mean an offer from a federally registered handler.

Golden, who provided the contract form, agreed in paragraph one of the “Terms and Conditions” portion of the contract that no parol evidence shall be allowed to supplement or explain the agreement. Golden is bound by its own agreement and may not now violate its terms by attempting to explain or supplement it through the use of parol evidence. “If the intention of the contract is clear and contravenes no rule of law it will be enforced according to its terms.” Budd Land Co. v. K & R Realty Co., 159 Ga. App. 448, 449 (283 SE2d 665) (1981).

Decided March 19, 1992.

Liggin & Winkler, H. James Winkler, for appellant.

Davis, Gregory & Christy, Hardy W. Gregory, Jr., Gary C. Christy, David A. Forehand, Jr., for appellees.

Furthermore, while it is true that OCGA § 11-2-202 does allow for a written contract to be explained or supplemented by usage of trade evidence, it does not allow the use of such parol evidence to alter or vary the terms of the contract. “[T]he express terms of a contract and trade usage shall be construed as consistent with each other only when such construction is reasonable. A construction which negates the express terms of the contract by allowing unilateral abandonment of its specifications is patently unreasonable.” Southern Concrete Svc. v. Mableton Contractors, 407 FSupp. 581, 585 (3) (N.D. Ga. 1975).

The parol evidence offered by Golden does not merely explain or supplement the plain, unambiguous contract entered into by the parties; rather, it contradicts the clear language of their agreement and seeks to place additional terms and conditions on the parties. The clear intention of the parties was that if they could not agree upon a price, Hunt could then entertain bona fide purchase offers from any third party. Golden now tries to modify that unambiguous agreement by use of parol evidence to additionally require the bona fide offer to come from a federally registered peanut handler. Golden may not do this. “Where the language of the contract is plain, unambiguous, and capable of only one reasonable interpretation, no other construction is permissible.” Copy Systems v. Page, 197 Ga. App. 435, 437 (398 SE2d 784) (1990), quoting Reuss v. Time Ins. Co., 177 Ga. App. 672, 673 (340 SE2d 626) (1986). Accordingly, the trial court did not err in granting the appellees’ motion for partial summary judgment.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


text:
    A91A1941.
    In the Interest of A. D. I., a child.
    (417 SE2d 741)
   Andrews, Judge.

The Juvenile Court, upon remand of this matter pursuant to In re A. D. I., (Case No. A90A1883, issued January 24, 1991, unpublished opinion) entered an order barring an employee of the Department of Human Resources from handling cases in that court. Such an order violates our prior decision in this 'matter because it, in effect, directs the care and disposition of the juvenile after commitment to the division.

Decided March 19, 1992.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Staff Attorney, Rebecca P. Dally, for appellant.

Sandra M. Gentry, for appellee.

Judgment reversed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A91A2066.
    THOMAS et al. v. BARNETT BANK OF SOUTHEAST GEORGIA et al.
    (416 SE2d 902)
   Johnson, Judge.

The Thomases’ automobile was repossessed and they sued Barnett Bank of Southeast Georgia (Barnett Bank), Walker Jones Chevrolet Company, and an unknown representative of Barnett Bank. The Thomases filed a motion for a pre-judgment attachment of the assets of the named defendants. The trial court ordered that the motion be denied. The Thomases appeal that order.

“ Tt is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.’ [Cit.]” Landor Condo. Consultants v. Colony Place Condo. Assn., 195 Ga. App. 840 (395 SE2d 25) (1990). The civil action in this case remains pending in the court below, and the only thing sought to be appealed is the order of the trial court denying pre-judgment attachment. That is clearly an interlocutory order. While it is true that OCGA § 5-6-34 (a) (5) provides for a direct appeal from an order granting or refusing applications for attachment against fraudulent debtors, there are no allegations of fraud in the complaint in this case. Further, a review of the Georgia Code provisions governing prejudgment attachment reveals no mention of “fraudulent debtors.” Thus, it is clear that the trial court’s order in this case denying prejudgment attachment is an interlocutory order. The Thomases have failed to comply with any of the statutory procedures for interlocutory application. Accordingly, we dismiss the appeal.

Decided March 19, 1992.

Leon Thomas, pro se.

Rose S. Thomas, pro se.

Gilbert, Harrell, Gilbert, Sumerford & Martin, Wallace E. Harrell, for appellees.

Appeal dismissed.

Garley, P. J., and Beasley, J., concur.


text:
    A91A2110.
    GREAT WESTERN BANK v. DAVIS et al.
    (416 SE2d 899)
   Cooper, Judge.

Appellant foreclosed on an apartment complex pursuant to a deed to secure debt defaulted on by appellees. At the foreclosure sale, the property was sold for 1.9 million dollars. Pursuant to OCGA § 44-14-161, appellant filed an application for confirmation of the foreclosure sale. Prior to trial, appellees stipulated that appellant had complied with the statutory notice and advertisement requirements; therefore, the only issue for the trial court’s determination was whether the foreclosure sale returned the true market value of the property. After hearing evidence, the trial court entered an order denying confirmation of the sale, finding that the property sold did not bring its true market value and that the true market value of the property was between 2.5 and 3 million dollars. This appeal follows.

1. Appellant first enumerates error with the trial court’s finding that the true value of the property was between 2.5 and 3 million dollars. Appellant first argues that such a finding is not required by OCGA § 44-14-161 and second, that there is no evidence in the record supporting the amount. OCGA § 44-14-161 (b) provides that upon application to confirm a foreclosure sale, “[t]he court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.” One of appellees’ appraisers testified at trial that in his opinion the property was valued at 2.9 million dollars, and appraisers for both appellant and appellees testified that the county had recently appraised the property at a value in excess of 3 million dollars. “In confirmation proceedings, the trial court sits as trier of fact, and its findings will not be disturbed if there is any evidence to support them. [Cit.]” Arnold v. Farmers Bank of Union Point, 195 Ga. App. 328, 329 (393 SE2d 486) (1990). There was sufficient evidence to support the trial court’s determination that the sale of the property for 1.9 million dollars did not bring the true market value of the property. Although the court was not required to give an opinion as to the true market value, considering the evidence, we cannot conclude that the trial court’s determination was erroneous.

2. In its second enumeration of error, appellant contends that the trial court erred in not considering the appraisal report of appellant’s expert. During the presentation of appellant’s case, the trial judge admitted into evidence, without objection, the appraisal report of one of appellant’s expert witnesses. When appellees tendered the appraisal report, appellant objected, and the trial judge sustained the objection. The trial judge stated that the appraisal report was offered to supplement and bolster the testimony of the expert; that he was not going to consider any of the appraisal reports which had been offered into evidence; and that he would consider only the testimony and other documents which had been admitted. Appellant’s expert was examined and cross-examined extensively regarding the basis for his opinion as to the value of the property and the methodology employed in reaching that opinion. Appellant argues that the failure to consider the report was harmful because an analysis of the report was the only way for the trial judge to understand the basis for the expert’s opinion. We disagree. The record reflects that appellant’s expert was questioned in detail about his report, and in many instances was asked to explain matters on various pages in his report. Appellant has failed to establish that the report contained any matter which was not introduced through the expert’s testimony. Furthermore, appellant has not shown how it was harmed by the trial court’s failure to consider the report. “ ‘It is an old and sound rule that error to be reversible must be harmful.’ [Cit.]” Ingram v. Peterson, 196 Ga. App. 888, 891 (6) (397 SE2d 141) (1990).

3. Appellant enumerates as error the trial court’s exclusion of a document which consisted of notes prepared by the receiver of the property as he performed an inspection of the property. Appellant insists that the document qualified as a business record because the receiver testified that he prepared it in the ordinary course of business. OCGA § 24-3-14 provides that “[a]ny writing or record . . . made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act. . . .” The receiver testified that the document was prepared from notes he dictated while he performed a complete walk-through of the vacant units in the apartment complex and that the purpose of the document was to remind him of what he observed in each unit. We agree with the trial judge that the document did not qualify as a business record. “At most, [this document was a worksheet] prepared in anticipation of litigation. [It] could properly be used to refresh the recollection of the witness, but [was] not [itself] admissible as evidence. [Cits.]” Goss v. Mathis, 188 Ga. App. 702 (373 SE2d 807) (1988); Reach Out, Inc. v. Capital Assoc., 176 Ga. App. 585 (1) (336 SE2d 847) (1985). “Nevertheless, an appellant must show harm as well as error to prevail on appeal. . . . [Cits.]” Goss v. Mathis, supra at 703. The receiver testified about the contents of his memorandum, including the condition of the property during his inspection, and his opinion as to the value of the property on the date of the inspection as well as on the date of the foreclosure sale. The trial judge stated that although he was not admitting the memorandum, he would consider the testimony of the receiver. Accordingly, we find no reversible error.

Decided March 19, 1992.

Troutman, Sanders, Lockerman & Ashmore, William N. Withrow, Jr., William T. Plybon, Patricia A. Murtaugh, for appellant.

Randy M. Wells, for appellees.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A92A0020.
    SHARP v. THE STATE.
    (416 SE2d 901)
   Johnson, Judge.

Sarita Murphy Sharp (Sharp) appeals from her conviction for theft by receiving stolen property and the denial of her motion for a new trial.

Sharp and her husband worked for a construction company at an apartment complex from approximately May through December 1988. A refrigerator was shipped to the construction company sometime in December 1988 and, thereafter, was stolen from the apartment complex. On March 19, 1989, the police executed a search warrant and found the refrigerator in the house where Sharp lived with her husband. An officer testified that Sharp said she and her husband had bought it from a flea market approximately a year ago. Sharp denied making such a statement. She testified that the refrigerator belonged to her brother and she did not know it was stolen. Sharp’s husband admitted that he and Sharp’s brother stole the refrigerator from the apartment complex and that Sharp did not know it was stolen. Sharp’s brother testified that Sharp and her husband stole the refrigerator.

1. Sharp’s first enumeration of error is that the evidence produced at trial was insufficient to support the guilty verdict and her second enumeration is that the trial court erred in denying her motion for a directed verdict of acquittal. In her brief, Sharp argues enumerations one and two together; we will address them in the same manner.

Decided March 19, 1992.

Michael M. White, for appellant.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Assistant Solicitor, for appellee.

Both of these enumerations of error are predicated on Sharp’s contention that there was no evidence introduced to show that she knew or should have known the refrigerator was stolen. We must review this contention under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). A review of the record in the light most favorable to the prosecution convinces us that a rational trier of fact could readily have found proof of all the essential elements of theft by receiving stolen property beyond a reasonable doubt. Accordingly, enumerations one and two are without merit.

2. Sharp also argues that the trial court erred in allowing the State to reopen its case after it rested and after Sharp moved for a directed verdict of acquittal. “It is always within the sole discretion of the trial court to permit either the State or the defense in criminal cases to reopen the case after the close of the evidence. [Cits.]” Morris v. State, 170 Ga. App. 849, 850 (2) (318 SE2d 517) (1984). See McFarland v. State, 137 Ga. App. 354, 357 (223 SE2d 739) (1976). Here, the trial court did not abuse its discretion and did not err in reopening the evidence.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0022.
    HOLLOMAN v. THE STATE.
    (416 SE2d 839)
   Sognier, Chief Judge.

Daniel Holloman was convicted in probate court of DUI, and he appealed to the superior court pursuant to OCGA § 40-13-28. The superior court affirmed, finding that since there was no transcript of the proceedings in probate court, it must presume the probate court’s judgment was correct. Upon Holloman’s appeal to this court, we remanded to the superior court with direction that the superior court issue an order to obtain any transcript or certified record from the probate court as was necessary to accord appellant the review to which he was entitled. See Holloman v. State, 199 Ga. App. 230 (404 SE2d 651) (1991). The trial court issued such an order and the probate court provided the trial court with a summary of evidence. The superior court reviewed the probate court’s judgment on the record and affirmed, and Holloman brings this appeal.

The probate court’s summary of the evidence reveals that the arresting officer, Georgia State Trooper R. T. Boyle, stopped appellant after radar indicated he was speeding. Boyle testified that appellant’s speech was slurred, he had a strong odor of alcohol, and was unsteady on his feet. An Alcosensor test was positive. Wanda Albright of the Lamar County Sheriff’s Department testified that she was trained to operate the Intoximeter 3000, that she tested appellant’s breath, and that the result showed a blood alcohol percentage of .12. Appellant testified that he had purchased a 12-pack of beer.for the week and had drunk four cans in one day.

1. Appellant enumerates the general grounds. We find the evidence sufficient to support appellant’s conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Corley v. State, 192 Ga. App. 35, 36 (1) (383 SE2d 586) (1989).

2. Relying on North v. Russell, 427 U. S. 328 (96 SC 2709, 49 LE2d 534) (1976), appellant contends the Georgia Supreme Court’s recent construction of OCGA § 40-13-28 as providing no right to de novo review, Walton v. State, 261 Ga. 392 (405 SE2d 29) (1991), as applied to him, renders his trial in probate court a denial of due process of law because the proceedings in probate court were before a non-lawyer judge. We need not decide this issue because the record does not indicate whether the probate judge was a lawyer, and this court will not consider factual allegations in the briefs of parties which are not supported by evidence contained in the record. Hurst v. State, 198 Ga. App. 380, 381 (4) (401 SE2d 348) (1991). We note, however, that because the Kentucky statutory scheme reviewed in North provided that an offender subject to confinement after trial in a lay police court has available on appeal a trial de novo before a lawyer judge, the U. S. Supreme Court was not required to reach the issue presented by appellant in this case. The North court held only that the existing Kentucky scheme did not violate the due process clause of the Fourteenth Amendment to the United States Constitution. Id. at 339.

3. Appellant also argues that Walton should be applied only prospectively because he relied on the former interpretation of OCGA § 40-13-28 and consequently should have been afforded either a de.novo review in superior court or at least another opportunity to decide whether he wished to cónsent to trial in the probate court given that he had no right to de novo review in superior court. We do not agree.

When no vested rights are involved, the general rule is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation. Foster v. Bowen, 253 Ga. 33, 34 (315 SE2d 656) (1984). Thus, contrary to appellant’s assertion, he was not entitled to rely on the former construction of OCGA § 40-13-28 overruled in Walton, supra. “ ‘The overruling of a former judicial decision is retrospective in its operation and the effect is not that the former decision was bad law, but that it was never the law. [Cit.] There is an exception to this general rule of retrospective application. Where constitutional or statutory law has been construed by the appellate courts and contracts have been made and vested rights acquired in accordance with the construction of the law, retrospective application will not be made.’ [Cit.]” State v. King, 164 Ga. App. 834 (298 SE2d 586) (1982). Although OCGA § 40-13-28 certainly affects the assertion of substantive rights, it, like the “no cure” rule involved in Foster, “nonetheless falls within the category of procedural law. The rule is that there are no vested rights in any course of procedure. [Cits.]” Id. Accordingly, Walton must be applied retrospectively, and appellant was not entitled to a de novo review in the superior court. Nor is appellant entitled to another opportunity to decide whether he wishes to be tried in the probate court. Appellant clearly made an election to be tried in probate court, and his reliance on our previous construction of OCGA § 40-13-28 in doing so is irrelevant, since the right to a particular type of appeal is not a vested right. Id.

4. Appellant next contends the superior court erred by affirming the probate court’s judgment because the probate court erred in several respects.

(a) Appellant’s contention that the probate court erred by denying his motion to test, inspect, and examine the Intoximeter 3000 used to test his breath is controlled adversely to him by Blanos v. State, 192 Ga. App. 835-836 (1) (386 SE2d 714) (1989).

(b) Although appellant maintains the probate court erred by denying his plea in bar, the basis for appellant’s plea in bar was a challenge to the constitutionality of the DUI statutory scheme, which has been decided adversely to appellant in Lattarulo v. State, 261 Ga. 124-127 (1)-(3) (401 SE2d 516) (1991).

(c) Appellant asserts the probate court erred by denying his motion to suppress the results of the Intoximeter 3000 test for three reasons. Appellant alleges the State failed to lay the proper foundation for the admission of the test results and failed to show that Trooper Boyle read appellant his implied consent rights, as required by OCGA § 40-6-392 (a) (4). However, absent a transcript it is impossible for this court to determine whether a proper foundation was laid or whether Boyle testified that appellant was read his implied consent rights. The summary of the evidence prepared by the probate judge from her notes is silent as to these matters, and thus the superior court was entitled to presume the probate court’s ruling was proper. See Burns v. State, 196 Ga. App. 732 (2) (397 SE2d 19) (1990).

Decided March 9, 1992

Reconsideration denied March 20, 1992

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, Anne C. Allen, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

Appellant’s contention that he had not committed a traffic violation, rendering Boyle’s stop illegal under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), is belied by the probate court’s summary of evidence, which indicates that Boyle stopped appellant for speeding.

5. The record does not support appellant’s allegation that the superior court was not fair and impartial on remand from this court because it had found appellant guilty once before, and we find this allegation utterly without merit.

Judgment affirmed.

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