text:
    74538.
    FIAT AUTO U. S. A., INC. v. HOLLUMS.
    (363 SE2d 312)
   Benham, Judge.

Appellee Hollums purchased a 1980 Fiat Spider 2000 convertible automobile from an Atlanta-area Fiat dealer on March 5, 1981. Due to mechanical problems he had with the car, appellee filed suit against the dealer and appellant Fiat Auto U. S. A., Inc. (“Fiat”) in October 1982, alleging breach of warranty and violation of the Magnuson-Moss Act (15 USCA § 2301 et seq.). A jury returned a verdict in favor of the dealer and against appellant, and awarded appellee $30,000. Appellant filed this appeal from the entry of a judgment reflecting the jury verdict.

1. In its first enumerated error, Fiat complains the trial court erred in denying Fiat’s motion for directed verdict on the issue of liability under an implied warranty of fitness for a particular purpose. The implied warranty of fitness for a particular purpose is contained in the Uniform Commercial Code (UCC) and can be found in OCGA § 11-2-315: “Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is ... an implied warranty that the goods shall be fit for such purpose.” The warranty of fitness for a particular purpose differs from the warranty of merchantability (see OCGA § 11-2-314) in that the latter warrants fitness for the ordinary purposes for which such goods are used while the former “envisages a specific use by the buyer which is peculiar to the nature of his business. . .” UCC § 2-315, Official Comment, Par. 2. In order to find the implied warranty of fitness for a particular purpose, the statute “requires both the seller to have reason to know of the particular purpose for which the goods are required [by the buyer] and the buyer to rely on the seller’s skill or judgment in selecting or furnishing suitable goods. . . .” Bruce v. Calhoun First Nat. Bank, 134 Ga. App. 790 (5) (216 SE2d 622) (1975). The statute also requires that the seller know the buyer is relying upon the seller’s skill or judgment. White & Summers, Uniform Commercial Code, § 9-9, p. 358 (2d ed. 1980).

It is undisputed in the case at bar that appellee never indicated he was purchasing the car for any purpose other than pleasure driving. Insofar as an automobile is concerned, that avowed purpose is not a “particular purpose” as that term is used in the UCC. See UCC, § 2-315, Official Comment, Par. 2; Bruce v. Calhoun First Nat. Bank, supra. Inasmuch as there was no conflict in the evidence concerning this issue and the evidence introduced, with all reasonable deductions therefrom, demanded a verdict for Fiat, the trial court erred in denying appellant’s motion. OCGA § 9-11-50 (a).

2. Appellant also sought and was denied a directed verdict on the issue of consequential damages. While consequential damages are recoverable in an action for breach of warranty (OCGA § 11-2-715 (2)), the parties to a contract may limit or alter the measure of damages recoverable. OCGA § 11-2-719 (a) (1). The Code specifically states that “[consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.” OCGA § 11-2-719 (3).

In the case at bar, it is undisputed that appellee received from appellant a warranty which limited Fiat’s obligation “to replacement or repair of, at the option of [Fiat] . . . such part as shall be actually defective and adjustments necessitated by such replacement or repair.” In bold-face, capital letters, the warranty read: “THERE SHALL BE NO LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES UNDER THE ABOVE WARRANTIES . . .” Thus, appellant excluded consequential damages and limited its obligation to repairing or replacing defective parts and making adjustments necessary to those repairs or replacements. The limitations and exclusions were conspicuously placed on the warranty and were not unconscionable. A-Larms, Inc. v. Alarms Device Mfg. Co., 165 Ga. App. 382 (2) (300 SE2d 311) (1983). In light of the undisputed evidence that appellant had legally excluded consequential damages as a remedy for breach of warranty, the trial court erred in denying appellant’s motion for directed verdict. It follows that it was also error to instruct the jury on the recovery of such damages.

3. Appellant also sought a directed verdict on the issue of appellee’s revocation of his acceptance. There was evidence that appellee had sent a letter to Fiat on January 29, 1982, in which he recounted his troubles with the car and asked appellant to take back the car and refund all monies expended by him, or to supply him with a new Spider 2000. The jury was authorized to conclude that appellee’s letter constituted a revocation of his acceptance of the car. See OCGA § 11-2-608. However, “a buyer who purports to revoke his acceptance of goods may be found to have re-accepted them if, after such revocation, he performs acts which are inconsistent with the seller’s ownership of the goods. [Cit.]” W. M. Hobbs, Ltd. v. Accusystems of Ga., 177 Ga. App. 432 (1) (339 SE2d 646) (1986). Subsequent to his letter of January 29, 1982, appellee removed the car from the dealer’s lot (where he had left it in an attempt to sell it, and had rejected one offer of sale); took it to various auto shops for repairs; had the car painted another color; paid taxes on the vehicle; insured it; attempted to sell it on his own; and drove it over 6,000 miles. Appellee explained his post-revocation conduct as an effort to cut his losses. However, appellee’s various post-revocation acts constituted exercises in ownership by him and acts inconsistent with the seller’s ownership. See OCGA § 11-2-606 (1) (c). “[A]ny action taken by the buyer, which is inconsistent with his claim that he rejected the goods, constitutes an acceptance.” UCC § 2-606, Official Comment, Par. 4. While the jury may have concluded that appellee revoked his acceptance of the auto when he wrote the letter to Fiat in January 1982, his continued use of the auto and the various acts of ownership he performed after the letter constituted, as a matter of law, the’re-acceptance of the goods. See W. M. Hobbs, Ltd. v. Accusystems of Ga., supra. Since a consumer may not recover for rescission of the contract when he has accepted the goods, the trial court should have directed a verdict in favor of appellant.

4. Appellant also unsuccessfully sought a directed verdict on appellee’s claims of breach of express or implied warranties on the ground that appellee had failed to prove his damages. Damages for breach of warranty are recoverable only when the buyer has accepted the goods. OCGA § 11-2-714 (2); Wolfes v. Terrell, 173 Ga. App. 835 (2) (328 SE2d 569) (1985). While appellee presented evidence that he had revoked his acceptance of the automobile, that alone is not sufficient to determine whether a directed verdict on the issue of breach of warranty was in order since a party may set forth inconsistent claims (OCGA § 9-11-8 (e) (2)) and may pursue any number of inconsistent remedies prior to the formulation and entry of judgment. Waller v. Scheer, 175 Ga. App. 1 (3) (332 SE2d 293) (1985).

“The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount. In a proper case, any incidental and consequential damages under Code section 11-2-715 may also be recovered.” OCGA § 11-2-714 (2 and 3). In an effort to prove his damages, appellee presented evidence of the purchase price of the car ($10,981.96) and costs he had incurred ($810 for painting and payments of $128.78, $226, and $115.70 for repairs), as well as various incidental and consequential expenses (taxes, insurance). The purchase price of the car was some evidence of the value the car would have had if it had been as warranted, but there was no evidence of the value of the automobile as accepted by appellee on March 5, 1981, the date of purchase. Without that figure, the jury was incapable of computing the amount of damage suffered by appellee without speculating. The value of the car at acceptance cannot be extrapolated from the costs incurred by appellee for repairs since several repairs were repeated. Without evidence of the actual value of the automobile as accepted by appellee, the jury was not equipped with the means by which it could award damages for any proven breach of warranty. Therefore, the trial court erred when it refused to direct a verdict in favor of appellant on the breach of warranty claims. Any error in the content of the jury charge regarding the computation of damages for breach of warranty is harmless in light of our holding that a directed verdict for appellant was in order.

5. The trial court informed the jury that the expenses of litigation are generally not permitted as damages in a contract case but could be awarded appellee where appellant had acted in bad faith, had been stubbornly litigious or had caused appellee unnecessary trouble and expense. See OCGA § 13-6-11. Appellant maintains it was error to so charge the jury in light of appellee’s failure to present evidence of the actual costs of his attorney and the reasonableness of those costs.

“An attorney cannot recover for professional services without proof of their value. [Cit.] Generally, a party will proffer the opinion testimony of his present counsel as well as that of other attorneys in an effort to show what constitutes a reasonable attorney fee in light of the litigation history of the case. [Cits.]” First Bank of Clayton County v. Dollar, 159 Ga. App. 815 (4) (285 SE2d 203) (1981). An award of attorney fees is unauthorized if appellee failed to prove the actual costs of the attorney and the reasonableness of those costs. Sun v. Langston, 170 Ga. App. 60 (3) (316 SE2d 172) (1984).

In the case at bar, counsel for appellee, after the evidence was closed and he had been denied the opportunity to reopen his case, made a proffer of a portion of the evidentiary basis necessary for an award of attorney fees under OCGA § 13-6-11. Appellee’s counsel stated he had spent 93 hours on the case and billed his time at a rate of $75 per hour. There was no proffer concerning the reasonableness of the attorney fees sought. Most importantly, no evidence concerning attorney fees was ever placed before the jury. In the absence of evidence from which the jury could make an award of attorney fees, it was error to instruct them on the making of such an award. See Hub Motor Co. v. Zurawski, 157 Ga. App. 850 (4) (278 SE2d 689) (1981).

Decided November 17, 1987

Rehearing denied December 1, 1987.

Eric J. Spitler, Edgar A. Neely, Jr., David C. Marshall, for appellant.

E. Wayne Wallhausen, Ray H. Ledford, for appellee.

6. In light of the above holdings, appellee’s request for the imposition of frivolous appeal damages pursuant to OCGA § 5-6-6, is hereby denied.

Judgment reversed.

Banke, P. J., and Carley, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Beasley, Judge,

license: Public Domain

text:
    74613.
    HOLLAND v. THE STATE.
    (363 SE2d 589)
   McMurray, Presiding Judge.

Defendant Holland appeals his conviction of the offense of possession of more than one ounce of marijuana. Held:

Defendant’s first five enumerations of error raise issues as to sufficiency of the evidence. The contraband upon which defendant’s conviction is predicated was found during a search of a mobile home. The mobile home in question was located in a trailer park owned and operated by Avans. On October 1, 1985, Avans rented the mobile home to Stevens and at that time Stevens was the sole occupant of the mobile home. On approximately October 18, 1985, Stevens left the trailer.

Subsequently, Stevens had a conversation with Avans which prompted Avans to go to the trailer twice and engage in brief conversations with Glenda Mae Estes (this individual also known as Glenda Durham was also charged with possession of more than one ounce of marijuana, tried jointly with defendant and convicted). The purpose of both of these visits by Avans was to regain possession of the premises for Stevens. In this connection we note that while Avans testified as to statements he made during these visits which presumed defendant was an occupant of the premises, Avans lacked any knowledge of defendant’s occupancy, dominion, or control over, or even presence upon the premises (prior to the time of the search) independent of the hearsay statements made by Stevens. During the course of these visits Avans learned of the presence of marijuana upon the premises and contacted law enforcement officials.

On October 24, 1985, following a conversation with Stevens and Avans, and under the authority of the consent of Stevens, law enforcement officers conducted a search of the premises. At the time of the search both Glenda Mae Estes (a/k/a Glenda Durham) and defendant were present upon the premises. Marijuana was found in a number of locations including a styrofoam cooler, underneath a pile of clothes, in a drawer, in garbage bags in the kitchen, in medicine bottles and marijuana leaves and residue were found in the oven. However, no contraband was found on defendant’s person. There was no evidence that any of the marijuana was found in plain view or among any personal possessions of defendant. There was no evidence discovered during the search which suggested defendant lived in the trailer or had any contractual right to be there. One of the law enforcement officers who conducted the search acknowledged that the trailer was easily accessible to individuals other than defendant.

Stevens was deceased at the time of trial. Testimony relating statements attributed to Stevens was admitted for the limited purpose of explaining the conduct of certain law enforcement officers. See OCGA § 24-3-2. However, in view of the limited purpose for which it was admitted, this testimony, which might suggest that the defendant resided in the trailer, may not be considered in determining whether defendant’s conviction was authorized by the evidence. “In short, there is absolutely no evidence that [defendant] had any connection with the premises or its contents other than [his] physical presence at the time of the search. Compare, e.g., Bass v. State, 140 Ga. App. 788 (232 SE2d 98) (1976) (premises leased by defendant). ‘ “Presence at the scene of a crime and nothing more will not support a conviction.” [Cit.]’ M. W. W. v. State, 136 Ga. App. 472, 475 (221 SE2d 669) (1975). ‘It is well established that merely having been in the vicinity of contraband does not, without more, establish possession. [Cits.]’ Donaldson v. State, 134 Ga. App. 755, 756 (216 SE2d 645) (1975).” Mitchell v. State, 150 Ga. App. 44, 47 (2) (256 SE2d 652). See also Morris v. State, 161 Ga. App. 141, 143 (5) (288 SE2d 102); Blount v. State, 181 Ga. App. 330, 333 (2) (352 SE2d 220). The State’s evidence fails to establish actual or constructive possession of the contraband by defendant. Thus, the trial court erred in denying defendant’s motion for directed verdict of acquittal.

Judgment reversed.

Sognier, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur because the evidence connecting Holland with possession of marijuana, other than the evidence that he was present and, by a reasonable inference, was spending the night in the trailer when the marijuana was seized, are statements of the deceased trailer renter Barney Stevens. His statements to the landlord and the police, who both testified, that he wanted “Randy” and “Glenda” and their marijuana out of the trailer and to regain possession of the trailer himself, were admitted solely for the purpose of explaining conduct. Whether that was a correct ruling or not, the point is that this evidence was not admitted for its substantive value as to defendant’s guilt.

Decided November 19, 1987

Rehearing denied December 1, 1987

James A. Meaney III, for appellant.

David L. Lomenick, Jr., District Attorney, David J. Dunn, Assistant District Attorney, for appellee.

It is arguable that it was generally admissible, as declarations against Stevens’ own interest, OCGA § 24-3-8, because he was advising his landlord and the law enforcement officers that there was marijuana in his trailer. This would lend that character of trustworthiness to the statements which, together with the other prerequisite of necessity occasioned by Stevens’ death before trial, might overcome a hearsay objection. See Irby v. Brooks, 246 Ga. 794, 796 (I) (273 SE2d 183) (1980); Gentile v. Miller, Stevenson & Steinichen, 182 Ga. App. 690, 692 (1) (356 SE2d 666) (1987). But even if this were the case, the exclusion of this evidence as substantive evidence of possession precluded a finding of guilt beyond a reasonable doubt.


author: Benham, Judge.

text:
    74711.
    SOUTHEASTERN AMBULANCE CORPORATION v. FREEMAN.
    (363 SE2d 571)
   Benham, Judge.

Appellee, a 68-year-old woman, was injured when she fell in an effort to avoid being struck by an ambulance owned by Southeastern Ambulance Corporation (“Southeastern”). Southeastern’s position at trial was that it was not liable for appellee’s injury because at the time of the accident it had turned over the operation of its ambulances to defendant West Georgia Ambulance Service (“West Ga.”), in anticipation of selling its assets to West Ga. Southeastern also defended on the ground that appellee’s own negligence caused her injuries. The jury returned a verdict of $50,000 in appellee’s favor, and Southeastern appeals the judgment entered thereon. We affirm.

1. The trial court did not err in denying appellant’s motions for directed verdict, for judgment n.o.v., and for new trial. Contrary to appellant’s assertion, the evidence did not “clearly show” that appellee’s own negligence proximately caused her injury. A witness to the incident testified that he saw appellant’s vehicle come within inches of appellee as she and the child with her crossed the street in the crosswalk; that when the driver of the vehicle made his left turn he failed to yield to appellee or acknowledge her presence in the street; and that if appellee had not stepped or fallen back, the ambulance would have struck her. Appellee testified that she had the green light as she crossed the street and that when she was about half way across, she looked up and saw the ambulance turning left; “that it was so close she could have touched it”; and that when she tried to jump back to avoid being hit, she fell. She said that either the driver told her he worked for Southeastern Ambulance Corp., or she saw the name on the side of the ambulance. There was also testimony concerning the extent of her injuries. “A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict. OCGA § 9-11-50 (a).” Carver v. Jones, 166 Ga. App. 197 (3) (303 SE2d 529) (1983). The same standard applies to granting a judgment n.o.v. Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554) (1983). The evidence regarding appellant’s liability and negligence was such that the trial court properly allowed the case to go to the jury and properly upheld its verdict.

2. Appellant objected to the admission of a doctor’s deposition testimony regarding appellee’s physical condition near the time of the accident, contending that the doctor had never seen appellee and that no proper foundation had been laid for his testimony. The trial court did not err in allowing the testimony to be admitted. As an expert witness, the doctor was not required to have personally examined appellee. It was proper for him to base his opinion on the hypothetical question appellee posed and on his personal examination of appellee’s x-rays that were in evidence. OCGA § 24-9-67; DuBois v. Ray, 177 Ga. App. 349 (4) (339 SE2d 605) (1985). The credibility of the expert witness’ testimony was for the jury to decide and had no effect on the admissibility of the evidence. Jones v. Ray, 159 Ga. App. 734 (4) (285 SE2d 42) (1981).

3. At the conclusion of a witness’ testimony regarding $4,500 paid by West Ga. to appellant for ambulances under the sale agreement but not reimbursed when the sale did not go through, the trial court stated: “That was rental of the vehicles since there was no sale.” Appellant did not object to the statement. However, in his seventh enumeration of error, appellant contends that the trial court’s statement expressed its opinion as to a fact not proved, and that, as such, it requires that a new trial be granted. OCGA § 9-10-7. “[I]n the absence of an objection or motion for mistrial, an appellant cannot complain on appeal that he was prejudiced by such alleged conduct.” Walker v. Bishop, 169 Ga. App. 236 (9) (312 SE2d 349) (1983).

4. Appellant claims that the trial court erred in admitting West Ga.’s payroll records over appellant’s objection without a limiting instruction to the jury. Our review of the record shows that appellant did not object to the tender into evidence of the exhibit, nor did it ask for a limiting instruction. There is nothing for this court to review, as objections to evidence cannot be raised for the first time on appeal. Sun v. Bush, 179 Ga. App. 80 (7) (345 SE2d 85) (1986). In his ninth enumeration, appellant claims that the trial court erred in excluding from evidence four exhibits that purported to show that at the time of the accident, West Ga. controlled as its own all three of Southeastern’s ambulances. The exhibits were advertising materials for West Ga. and a handwritten memorandum of the transfer agreement between West Ga. and Southeastern. Neither the materials nor the memorandum was signed or dated, and there was no showing that the transfer agreement had been fulfilled by the parties prior to the date in question. “Any evidence is relevant which logically tends to prove or to disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant. [Cit.]” Dept. of Transp. v. Delta Machine &c. Co., 157 Ga. App. 423, 426 (278 SE2d 73) (1981). Since the exhibits did not tend to prove the fact for which appellant wanted them to be admitted, i.e., that the change of ownership had taken place before the accident occurred, the evidence was not relevant and was properly excluded. OCGA § 24-2-1. See Lane v. Morrison, 124 Ga. App. 316 (2) (183 SE2d 533) (1971).

5. Appellant takes issue with the trial court’s instruction to the jury on the sudden emergency doctrine, arguing that there had been no emergency. We disagree. There was evidence that appellee was threatened with the imminent danger of being struck by a moving motor vehicle, which justified the charge that she not be held to the same degree of conduct as she would be if she were acting without the compulsion of emergency. Gordon v. Gordon, 133 Ga. App. 520 (2) (211 SE2d 374) (1974). The trial court also charged the jury that the driver of a motor vehicle that is turning or moving straight ahead is obligated to keep a reasonable lookout ahead for persons on the street in front of him or so near the street in front of him as to be in danger of being struck by his vehicle, and the failure of the driver to do so may constitute negligence on his part. Appellant excepted to the charge, arguing that it was not adjusted to the evidence, since no one was struck by a vehicle and that, therefore, there was no failure by the driver to keep a proper lookout. The charge as given was proper, as it did not require evidence of a striking, but only evidence of the danger of being struck. Appellant also challenges the trial court’s charge on ownership and presumptions of agency. However, at trial appellant merely stated that it excepted to appellee’s request to charge 6-A, but did not offer any grounds for objection. “The mere objection to the giving of a numbered request to charge without stating any grounds therefor is not a compliance with [OCGA § 5-5-24 (a)], for which reason the instruction will not be subjected to a more detailed analysis. [Cit.]” Moore v. Carrington, 155 Ga. App. 12 (3) (270 SE2d 222) (1980).

Decided November 13, 1987

Rehearing denied December 1, 1987

Stanley G. Jackson, for appellant.

Jerry B. Hatcher, for appellee.

6. In his last enumeration of error, appellant argues that appellee’s jury verdict of $50,000 was excessive and that a new trial is warranted. See OCGA § 51-12-12. There was testimony that appellee suffered a fractured back as a result of her fall; that before her injury she was a very active, energetic, and independent person who worked as a caretaker for several young children, and also performed such tasks as cleaning gutters, climbing ladders, painting, caring for her invalid husband, and keeping up five apartments; and that after the injury she was unable to do anything strenuous without having to lie down because of the severity of the back pains; and that her activity level dropped and she had to hire other people to do the things she used to do. There was also testimony as to her medical expenses.

There is no direct proof of prejudice or bias, and the amount of the verdict, when considered in connection with all of the facts, does not “shock the moral sense, [and] appear ‘exhorbitant, flagrantly outrageous, and extravagant’ . . . [or] carry its death warrant upon its face.” Jones v. Spindel, 128 Ga. App. 88, 92 (196 SE2d 22) (1973). Therefore, we cannot say the verdict in this case was excessive.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


author: McMurray, Presiding Judge.

text:
    74938.
    ROBERTS v. LANGDALE.
    (363 SE2d 591)
   McMurray, Presiding Judge.

This legal malpractice action arose from a third-party complaint, filed by James D. Roberts, Jr. (appellant) against William P. Langdale, Jr. (appellee), wherein appellant alleged that appellee failed to exercise the requisite degree of care, skill and diligence in representing him as a guarantor under two promissory notes executed by Versa-Tile, Inc. in favor of First National Bank of Valdosta (bank). Appellant seeks indemnification from appellee as a consequence of his alleged liability as guarantor to the bank in the underlying suit filed by the bank against appellant.

Appellee denied the material allegations of appellant’s complaint and subsequently filed a motion for summary judgment with supporting affidavits. In opposition, appellant relied on the affidavit of an expert witness who deposed at length that appellee “violated one or more provisions of the Georgia Code of Professional Responsibility” in representing appellant. Appellant’s expert witness did not depose that appellee was negligent in representing appellant by failing to exercise the requisite degree of care, skill and diligence under the circumstances of which appellee was confronted. From this and other pertinent evidence adduced by the parties, the trial court granted appellee’s motion for summary judgment. This appeal followed. Held:

1. The controlling issue before this court is raised by appellant in his first enumeration of error, “i.e., does a legal malpractice case in Georgia necessarily have to involve negligence?” In sustaining the trial court’s order, granting summary judgment to appellee, we answer this question affirmatively. “ ‘(I)t is the general rule in the majority of states that in a legal malpractice action, the client has the burden of establishing three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff. (Cits.)’ Rogers v. Norvell, 174 Ga. App. 453, 457 (330 SE2d 392).” Guillebeau v. Jenkins, 182 Ga. App. 225, 229 (1) (355 SE2d 453).

Although the voluminous record in the case sub judice embraces an interesting and entangled tale of the circumstances surrounding appellee’s affiliation as counsel for appellant, in reviewing the evidence on summary judgment in this case, we need only look to the pertinent presumption of law and the expert testimony offered by appellant with regard to appellant’s allegations of malpractice against appellee. See Howard v. Walker, 242 Ga. 406, 407 (249 SE2d 45). In this regard, we observe the following:

“ ‘It is presumed that [appellee] performed legal services for plaintiff in an ordinarily skillful manner. Hughes v. Malone, 146 Ga. App. 341, 346 (247 SE2d 107).’ Mims v. Wardlaw, 176 Ga. App. 891 (3) (338 SE2d 866).” Patterson v. Lanham, 182 Ga. App. 343, 345 (3) (355 SE2d 738). This presumption was reinforced in the case sub judice by the affidavits of three attorneys who deposed as to their qualifications, demonstrated that they were familiar with the pertinent facts surrounding appellee’s representation of appellant and, based thereon, deposed that appellee represented appellant with the requisite degree of “skill, prudence and diligence.” Further, these affiants deposed in exhaustive detail as to the consequences of appellee’s representation of appellant and concluded that appellant’s alleged damages were “in no way” precipitated by any act or omission on the part of appellee in his capacity as attorney for appellant. In contrast, appellant’s expert witness deposed only that appellee had “violated one or more provisions of the Georgia Code of Professional Responsibility.”

Appellant argues that the testimony of his expert witness was sufficient to withstand appellee’s motion for summary judgment. We do not agree.

“This court has held previously that an alleged violation of ethical guidelines for attorneys enacted by the legislature could not be the basis for a civil suit against a legal advocate. Tingle v. Arnold, Cate & Allen, 129 Ga. App. 134 (3) (199 SE2d 260) (1973). Indeed, most courts which have directly addressed the question have rejected the notion of implying a civil cause of action for damages arising from a violation of a rule of professional conduct. See Bob Godfrey Pontiac, Inc. v. Roloff, 291 Or. 318 (3) (630 P2d 840) (1981). The better rule appears in the dissent to [Kinnamon v. Staitman & Synder, 66 Cal. App. 3d 893 (136 Cal. Rptr. 321) (1977)], written by Associate Justice Hanson: ‘(A)n alleged violation (of a rule of the Code of Professional Responsibility), standing alone, cannot serve as a legal basis to support plaintiff’s civil action seeking money damages . . .’ (Emphasis supplied.) Kinnamon, supra at 901.” East River Savings Bank v. Steele, 169 Ga. App. 9, 11, 12 (311 SE2d 189).

Standing alone, appellant’s evidence in the case sub judice merely established that appellee may have violated Georgia’s Code of Professional Responsibility. It does not indicate in any way that appellee’s representation of and advice to appellant was faulty, thereby causing appellant damages. Consequently, since appellant failed “ ‘to counter [appellee’s] evidence with expert legal testimony establishing the parameters of acceptable professional representation, the trial court properly granted [appellee’s motion] for summary judgment. Howard v. Walker, 242 Ga. 406 (249 SE2d 45).’ Mims v. Wardlaw, 176 Ga. App. 891 (3), 892, supra. See Thomas v. Carlisle, 179 Ga. App. 315, 316 (3) (346 SE2d 79).” Patterson v. Lanham, 182 Ga. App. 343, 345 (3), supra. See 37 Mer.L.Rev. 817.

2. In his final enumeration of error, appellant contends the trial court erred in failing to consider the entire record in granting appellee’s motion for summary judgment. We have reviewed the deposition testimony appellant refers to in this regard and we find no expert testimony which refutes the presumption and the evidence relied upon by this court in Division 1 of this opinion. Consequently, this enumeration is without merit.

Judgment affirmed.

Sognier and Beasley, JJ., concur.

Decided November 19, 1987

Rehearing denied December 1, 1987

Larkin M. Fowler, Jr., Samuel D. Lassiter, for appellant.

F. Thomas Young, Jeffrey O. Bramlett, for appellee.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    75504.
    BANK SOUTH v. JONES.
    (364 SE2d 281)
   Deen, Presiding Judge.

Donna Jones, the former wife of appellee Thomas Jones, obtained financing from Bank South in the amount of $48,000 to open a business known as Interiors Etcetera. Thomas and Donna Jones endorsed a promissory note in favor of the bank, and Donna Jones also signed the note on behalf of “Interiors Etcetera, a Proprietorship.” Thomas Jones, however, appears to have had no financial interest in the business. A security agreement was drafted and signed by Donna Jones whereby the bank took a security interest in the accounts receivable, contract rights of the debtor, and all the inventory of the business. Financing statements were prepared and filed, but were never signed by Donna Jones. Shortly before the business was scheduled to open, Thomas Jones notified the bank that the couple was having marital difficulties and that there was a danger that his wife and her friends were removing the collateral from the business premises. The bank immediately filed an action against Donna Jones and obtained a temporary restraining order prohibiting her from interfering in any way with the collateral. The TRO was later converted into an interlocutory injunction. The bank had the collateral inventoried and appraised, but it did nothing with the collateral in its possession. Because it failed to perfect its security interest in the collateral, the bank’s interest was subordinated to that of the trustee in bankruptcy when Donna Jones subsequently declared bankruptcy. The bank then filed suit against Thomas Jones as co-endorser of the promissory note.

At trial, the bank admitted that it made the loan anticipating that it would be secured by the collateral listed in the security agreement and the financing statement, that the collateral was lost as a result of its negligent failure to perfect its security interest, and that appellee did not enter into any agreement to allow the bank to rélease the collateral. At the close of the bank’s evidence, the trial court granted Thomas Jones’ motion for a directed verdict, holding that the bank’s admission that it unjustifiably impaired the collateral when it failed to perfect its security interest shifted to the bank the burden of proving the extent of the impairment and raised the presumption that the value of the impaired collateral equaled the amount of the debt. Bank South appeals. Held:

1. OCGA § 11-3-606 provides: “(1) The holder discharges any party to the instrument to the extent that without such parties’ consent the holder: . . . (b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.”

“The discharge provisions . . . apply only to signers who occupy the position of sureties, such as accommodation parties.” Farmers State Bank of Oakley v. Cooper, 608 P2d 929, 933 (1980). The Official Comment to UCC § 3-606 states that this section has been reworked to make it clear that “1. The words ‘any party to the instrument’ remove any uncertainty arising under the original section. The surety-ship defenses here provided are not limited to parties who are ‘secondarily liable,’ but are available to any party who is in the position of a surety, having a right of recourse either on the instrument or dehors it, including accommodation maker or acceptor known to the holder to be so.” To determine if Jones was an accommodation maker we turn to OCGA § 11-3-415 (1), which states: “(1) An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.” The relevant portion of the Official UCC Comment to this section provides: “(1) Subsection (1) recognizes that an accommodation party is always a surety (which includes guarantor), and it is his only distinguishing feature. He differs from other sureties only in that his liability is on the instrument and he is a surety for another party to it. His obligation is therefore determined by the capacity in which he signs.” As a surety under OCGA § 11-3-606 (1) (b), an accommodation maker therefore has the right to release from his obligation to the extent that he can show unjustifiable impairment of the collateral. In the majority of jurisdictions this defense is not available to a maker to “permit relief to a person, who, having a right of subrogation against the maker, could prove his rights were prejudiced by the payee’s release of the maker or impairment of the maker’s collateral otherwise available to pay the obligation.” In re I. A. Durban, 41 UCC Rep. Serv. 167, 171 (U. S. Bankruptcy Ct., SD Fla., 1985). Sureties, whether they are accommodation makers or endorsers, are only secondarily liable and retain a right of recourse against the primary debtor. “It is common practice for a surety to appear on a note either as a comaker or an indorser.” White & Summers, Uniform Commercial Code, § 13-12 at 516 (1980).

The intention of the parties must be ascertained in determining whether a party is an accommodation maker. Except as to holders in due course, this status may be determined by parol evidence. OCGA § 11-3-415 (3). Two primary factors are usually found to indicate this status: (l) the accommodation party received no benefits from the proceeds of the instrument, and (2) the signature was needed by the maker to acquire the loan. Farmers State Bank of Oakley, supra. Other factors which have been required to be shown in order to determine whether a party can claim this status include “his purpose in signing the instrument, [and] the intent of the parties to the instrument.” Lyons v. Citizens Commercial Bank, 443 S2d 229, 231 (1983). See also Annot., “Who is Accommodation Party Under Uniform Commercial Code § 3-415.” 90 ALR 3d 342 (1979); Annot., “Who is ‘Party’ Discharged on Negotiable Instrument to Extent of Holder’s Unjustifiable Impairment of Collateral Under UCC § 3-606 (1) (b)?” 93 ALR 3d 1283 (1983); White & Summers, Uniform Commercial Code, § 13-3, p. 519 (1980).

On the note in question, the defendant was designated as an “endorser” and signed the instrument below the signature of his wife. Beyond that, and an apparent agreement that he received none of the loan proceeds, there is very little evidence of his accommodation status. In its brief, however, the bank admits that it required Thomas Jones to endorse the note because Donna Jones had little or no business experience, and the bank relied upon her husband’s business background, assets, and employment in making the loan. Although the bank argues later in its brief that Jones was primarily liable on the note, its concessions in the brief and its position at trial during arguments on the burden of proof under OCGA § 11-3-606 (b) indicate that the bank considered him to be an accommodation party.

An issue which greatly concerned the trial court in ruling upon the motion for a directed verdict was which party bore the burden of proof as to the extent of the impairment. The court below found that the bank’s admission of unjustifiable impairment shifted the burden of proof to it as to the extent of the impairment. The bank presented evidence through an expert witness’ testimony that the wholesale value of the collateral was $14,219.50. On cross-examination the appraiser admitted that the bank asked for only the wholesale value, but that the retail value could be as high as $64,000.

An examination of the case law reveals that UCC § 3-606 is an equitable doctrine which was designed to protect the surety’s right of subrogation. The test for unjustifiable impairment of collateral not in the creditor’s possession is whether the creditor exercised reasonable care considering the circumstances of the case. The burden of proof is on the party claiming the defense, and he must prove it by a preponderance of the evidence. Bank of Ripley v. Sadler, 671 SW2d 454 (1984). See Annot., “What Constitutes Unjustifiable Impairment of Collateral, Discharging Parties to Negotiable Instrument, Under UCC 3-606 (1) (b)?” 95 ALR 3d 962 (1979). Failure to execute a security agreement in the collateral constitutes an impairment of collateral. White v. Household Fin., 302 NE2d 828 (1973); North Bank v. Circle Investment Co., 432 NE2d 1004 (1982). See also Hurt v. Citizens Trust Co., 128 Ga. App. 224 (196 SE2d 349) (1973); First Guaranty Bank v. Szekeres, 139 Ga. App. 124 (227 SE2d 908) (1976), which hold that under Georgia law “impairs” means injured, allowed to deteriorate in value, or that the creditor was negligent in failing to foreclose prior to the bankruptcy of the debtor. Georgia also recognizes that the burden of proof is on the guarantor or accommodation party to show impairment of the collateral. Mitchell v. Ringson, 169 Ga. App. 88 (311 SE2d 516) (1983).

In the instant case, the bank admitted that it negligently failed to perfect the security interest, and the court below found that the defendant was relieved of proving this issue. We concur in that ruling for the reasons set forth above. We must now determine, however, the issue which greatly concerned the trial court: which party bears the burden of proving the extent of the impairment? The court below found that the bank’s admission of unjustifiable impairment shifted the burden of proof to it as to the extent of the impairment, and that the bank did not meet its burden of proof. We disagree that the burden of proof was shifted; the defendant had a two-pronged burden of proof: unjustifiable impairment and the extent of the impairment.

OCGA § 11-3-307 provides that “(2) [w]hen signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” (Emphasis supplied.) Official comments to subsection 2 provide that “[o]nce signatures are proved or admitted, a holder makes out his case by mere production of the instrument, and is entitled to recover in the absence of any future evidence. The defendant has the burden of establishing any and all defenses, not only in the first instance but by a preponderance of the total evidence. The provision applies only to a holder.” The defendant therefore bears the burden of proving unjustified impairment and the extent of the impairment. Farmers State Bank of Oakley v. Cooper, supra at 936; Peacock v. Farmers & Merchants Bank, 454 S2d 730, 733 (1984); Lyons v. Citizens Commercial Bank, supra.

The release, however, is only pro tanto and the extent is a factual question which must be proven. Lyons v. Citizens Commercial Bank, supra at 232. The amount of the impairment is the limit of the right of the parties to be discharged and the burden of proof lies with the party seeking discharge to establish both the failure to protect the security and the damage that accrued as a result of that failure. Van Balen v. Peoples Bank &c. Co., 626 SW2d 205 (1982). If impairment is shown, the discharge of the surety is pro tanto only. That is, the release is limited to the extent of the value of the collateral at the time of the impairment. Bank of Ripley v. Sadler, supra at 457; Schauss v. Garner, 590 P2d 1316 (1979). If the collateral is worthless, there is no unjust impairment. Lyons v. Citizens Commercial Bank, supra at 232. We must note, however, that if the monetary amount of the impairment cannot be ascertained, one court has held that the guarantor will be discharged of all liability on the instrument. Langeveld v. L.R.Z.H. Corp., 376 A2d 931 (1977).

Decided November 19, 1987

Rehearing denied December 1, 1987

Mark L. Golder, for appellant.

We find the reasoning in First Bank &c. Co. of Palatine v. Post, 10 Ill. App. 3d 127 (1973), to be outside the majority view as to the discharge of the surety’s liability. It holds that the bank’s failure to perfect a security interest in the collateral operates as a complete defense to the instrument. Under Georgia law, a discharge operates only when the holder “unjustifiably impairs any collateral for the instrument,” i.e., increases the risk to the party. Hunter v. Community Loan &c. Corp., 127 Ga. App. 142 (193 SE2d 55) (1972). Case law from other jurisdictions which has been cited above persuades us that the discharge is only pro tanto and releases the surety only to the extent that he proves the impairment. To the extent that Melton v. J. M. Kenith Co., 182 Ga. App. 184 (355 SE2d 115) (1987), follows the reasoning in First Bank &c. Co. of Palatine v. Post, supra, it is overruled.

2. As this case must be retried, it is not necessary to consider appellant’s remaining enumeration of error, as any alleged error is unlikely to recur at trial.

Judgment reversed.

Birdsong, C. J., Banke, P. J., Pope and Benham, JJ., concur. Beasley, J., concurs specially. McMurray, P. J., and Carley, J., concur in the júdgment only. Sognier, J., disqualified.

Beasley, Judge,

concurring specially.

I concur in the judgment only, for I am not persuaded that the burden of proving the extent of the impairment lies with the guarantor or accommodation party. Once that party proves that the holder unjustifiably impaired the collateral, that is, that there is a flaw in plaintiff’s claim, the party seeking recovery from the guarantor/accommodation party should be required to prove how much is still owed, if any. The creditor is the plaintiff, and proof of the amount of damages to which it is entitled, is, and should remain, its obligation as one of the elements of its case. It should not be up to the defendant, who proves the impairment, to prove how little he owes as a result of plaintiff’s deviation from its obligation to obtain satisfaction from the collateral.

John A. Howard, for appellee.


author: Beasley, Judge.

text:
    74396, 74429.
    CLARK v. GENERAL MOTORS ACCEPTANCE CORPORATION; and vice versa.
    (363 SE2d 813)
   Beasley, Judge.

In August 1981 Mr. and Mrs. Clark entered into an installment contract with Backus Cadillac for the purchase of a new car. The contract, ultimately financed by GMAC, provided for monthly payments of $340.81 for 48 months.

Mrs. Clark had recurring mechanical problems with the car which were never fully corrected. Because of her dissatisfaction, Mrs. Clark ceased making payments in March 1982. On May 5, GMAC sent Mrs. Clark a letter stating that she was in default and had 10 days to cure it or the entire balance of the debt would be due. Mrs. Clark did not respond.

On May 20, an attorney for GMAC sent Mrs. Clark a letter notifying her that she was in default and demanding the entire sum of the debt ($11,252) plus attorney fees. Mrs. Clark did not respond. On May 24, GMAC filed a mortgage foreclosure action. As a result, Mrs. Clark was ordered on June 16 to make payments of $1,022.43 into the court registry. This amount covered three months’ back payments allegedly due. The order specified that Mrs. Clark would retain possession of the car until the matter was concluded. She filed an answer on June 23 and paid the required amount. No further payments were made.

Mrs. Clark, GMAC, and Backus Cadillac met in November to see whether an agreement could be reached regarding the car. By this time, Mrs. Clark was five months behind on payments. She contends that the agreement reached at this meeting was that the vehicle would be repaired to her satisfaction, and only then would she be required to make her account current. GMAC concedes that a promise was made to repair the car but denies any oral modification of the written payment schedule. There is no written evidence of such a modification. The car was left with Backus Cadillac to be repaired, and when Mrs. Clark returned for it, she was told she could not take it, but she did anyway.

In July 1983, the court ordered the payment of past due sums into the registry. Mrs. Clark told the court that since the car was not operating satisfactorily she would relinquish it to the court in lieu of payments until the litigation concluded. However, she did not do so.

Mrs. Clark became physically disabled within the terms of her credit disability insurance. The insurance proceeds were credited to her account, which brought it within approximately $300 of the amount due.

On August 1, Mrs. Clark’s husband committed suicide. On August 19, the court issued a writ of possession, as the car was still in Mrs. Clark’s possession, and the car was repossessed on August 27. GMAC sent a notice of sale to Mrs. Clark on August 31, but it was returned undelivered to GMAC. The car was sold on December 8.

Mrs. Clark filed an “Amendment to Answer, Counterclaim, and Motion to add Parties” in February 1985. GMAC moved for and was granted separate partial summary judgments, from which Mrs. Clark appeals, on the following issues: the notice of intent to seek legal fees was legally sufficient; the notice of post repossession sale was legally sufficient; obtaining a writ of possession less than three weeks after Mr. Clark’s suicide did not give rise to an action for intentional infliction of emotional distress; Mrs. Clark waived and was estopped from asserting by counterclaim the issues of GMAC’s taking unlawful possession of the automobile and fraud; GMAC did not waive payments and default by way of an oral promise; and GMAC acted in compliance with the contract and applicable law.

GMAC cross-appeals, citing as error the denial of its motion for summary judgment “as to any alleged tortious conduct on the part of the plaintiff not ruled upon in other motions for partial summary judgment” and the denial of its motion for summary judgment on fraud, conspiracy, and punitive damages.

Case No. 74396

1. Adequacy of notice of attorney fees under OCGA § 13-6-11 (a) (3).

Mrs. Clark urges that the May 20 letter of notice of default was ambiguous and misleading and so was inadequate. The letter notifies Mrs. Clark that she is in default, and further states that the note “contains a provision for attorney fees and pursuant to Georgia Code Annotated § 20-506, you are notified hereby that the provision relative to the payments of attorney’s fees are set out in said note in addition to the principal and interest shall be enforced, and that you have 10 days from the receipt of this letter to pay the attorney’s fees. If said principal and interest is not so paid, then payment of the attorney’s fees in addition to the principal will be demanded and enforced.” (Emphasis supplied.) GMAC admits that the phrase “10 days ... to pay attorney’s fees” is a typographical error, and should read “10 days ... to pay principal and interest.”

One of the substantive matters to be set forth in a letter of notice regarding attorney fees is that “the party has 10 days from the receipt of such notice to pay the principal and interest without the attorney fees.” General Elec. Credit Corp. v. Brooks, 242 Ga. 109, 119 (249 SE2d 596) (1978). The error in GMAC’s letter makes it unclear exactly what is being sought. First there is a reference to attorney fees, and then to “said” principal and interest. It is simply too far a stretch to conclude as a matter of law from this that “the debtor is informed that he has 10 days from receipt of notice within which to pay principal and interest without incurring any liability for attorney fees.” General Elec. Credit Corp., supra at 118. See also Albany Production Credit Assn. v. Sizemore, 175 Ga. App. 826 (334 SE2d 872) (1985).

GMAC cites Turner Advertising Co. v. Prakas, 164 Ga. App. 788 (298 SE2d 553) (1982) to support the contention that a typographical error does not negate “substantial compliance” with the notice requirement. Turner, however, dealt with an error which resulted in the notice being read to provide that no attorney fees would be sought if payment was delayed for at least 10 days. The error here was not, as in Turner, so obviously “a typographical error which could not reasonably have mislead anyone.” Turner, supra at 790. The notice having misstated to the debtor an essential condition to avoiding attorney fees, summary judgment should not have been granted to GMAC on this issue. Nor is the statement such that a jury would be compelled to conclude that a reasonable man would not deduce the correct message, so appellant Clark was not entitled to summary judgment on the issue either.

2. Adequacy of notice of post-repossession sale under OCGA § 11-9-504 (3).

Mrs. Clark contends that she was never notified in advance of the post-repossession sale of the car. GMAC shows that a letter was sent but was returned unopened. Appellant’s response is that there remains a question of fact as to whether the letter’s contents constituted a reasonable attempt at notification, thus precluding summary judgment on the issue. We need not examine the legal efficacy of the letter’s contents.

To begin with, the Uniform Commercial Code does not prohibit a post-repossession sale without notice. OCGA § 11-9-507 (1). Trust Co. of Columbus v. Kite, 164 Ga. App. 119, 121 (294 SE2d 606). A debtor’s remedies for a sale without notice are recovery of loss caused by an inadequate sale price, Trust Co., supra, and a debtor is protected in a suit on any deficiency by a rebuttable presumption that the value of the collateral is equal to the indebtedness. Emmons v. Burkett, 256 Ga. 855, 857 (353 SE2d 908) (1987).

Mrs. Clark does not allege inadequacy of price. GMAC would not be seeking a deficiency judgment, because the sale of the car resulted in a surplus rather than a deficiency. Even if summary judgment should not have been granted on the issue, no harm resulted. “Appellant must show harm as well as error to prevail.” Pope v. Propst, 179 Ga. App. 211, 217 (345 SE2d 880) (1986).

Mrs. Clark acknowledges this facet of GMAC’s case hut contends that Backus Cadillac’s “fraudulent involvement” in the resale of the car should have an effect on the disposition of this issue. However, appellant fails to advance any fraudulent conduct on the part of Backus Cadillac which affects the adequacy of notice. The trial court’s ruling stands.

3. Intentional infliction of emotional distress.

Mrs. Clark’s action for intentional infliction of emotional distress is based upon the “manner and circumstances” involved as to the trial court’s issuance of the writ of possession on August 19,1983. The impropriety alleged is not in obtaining the court order, but the timing thereof, i.e., the fact that it was issued shortly after Mr. Clark’s suicide. Mrs. Clark urges that it was “part of the plan to strike appellant when she would least be able to respond.”

However, no evidence is offered to prove this “plan.” “[I]n the absence of any evidence suggesting either a malicious purpose on their part or wanton disregard of the [other party’s] rights, their behavior cannot reasonably be characterized as outrageous or egregious.” Arrowsmith v. Williams, 174 Ga. App. 690, 692 (3) (331 SE2d 30) (1985). GMAC was entitled to summary judgment on this issue.

4. Waiver and estoppel.

The trial court granted GMAC summary judgment on the issues raised by Mrs. Clark’s counterclaim as to GMAC unlawfully obtaining possession of the property and related fraud. Mrs. Clark maintains that, because there had been no pretrial order in this case, she was entitled to add these assertions by counterclaim.

“A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.” (Emphasis supplied.) OCGA § 9-11-13 (e). “When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.” (Emphasis supplied.) OCGA § 9-11-13 (f). In such cases, “the trial judge is vested with discretion which will not be controlled absent a legal abuse.” Clairmont Foods v. Huddle House, 142 Ga. App. 171 (235 SE2d 635) (1977).

Here more was involved than whether the additional pleadings would be allowed, for the trial court considered the merits of Mrs. Clark’s allegations in light of what had transpired during the course of the proceedings. The court found that Mrs. Clark was estopped from asserting the issues in question by her conduct respecting the order granting possession to GMAC and that by failing to raise the issues until over a year after the sale of the automobile, she had acquiesced in the procedure and had waived her rights to contest the manner in which possession was acquired. Since the counterclaim had never been formally permitted and based upon the trial court’s undisputed findings, it was not error to grant the partial motion for summary judgment.

5. Waiver of payments and default.

Mrs. Clark claims that GMAC waived further payments on the car and the right to bring a default action by the oral agreement of November 18 that she would not be liable for any further payments until the car was repaired. GMAC denies ever having made such a statement which, if made, would be unenforceable.

The sales contract provides that “[n]o modification of any of the terms or conditions hereof shall be valid in any event, and the buyer expressly waives the right to rely thereon, unless made in writing duly executed by the seller.” Such a provision is enforceable, thereby rendering any subsequent oral modifications void. Hartline-Thomas v. H. W. Ivey & Co., 161 Ga. App. 91, 93 (289 SE2d 296) (1982). Moreover, “parol evidence is not admissible to vary the terms of a binding written agreement, even to establish fraud.” Cosby v. A. M. Smyre Mfg. Co., 158 Ga. App. 587, 591 (6) (281 SE2d 332) (1981).

The making of an oral promise regarding deferment of payments not being a material fact, summary judgment was warranted.

6. Compliance with the contract and applicable law by GMAC.

The court ruled against Mrs. Clark on this issue, which she here addresses in several parts, only one of which we consider of sufficient merit to discuss.

Mrs. Clark claims that GMAC was late in crediting payments into her account, thereby wrongfully computing late charges so as to create a default figure. For example, she asserts that the September 1, 1983 insurance payment went into the court registry rather than directly to GMAC and was not credited to her account until December 6. The terminology used by Mrs. Clark that there was no “default” on her part is not technically accurate for by failing to make timely payments she was in “default” under the terms of her contract. However, we consider substance and not mere nomenclature. Plank v. Bourdon, 173 Ga. App. 391, 393 (326 SE2d 571) (1985). The substance of this contention is that at the time of sale there had been late payments to GMAC which had accumulated in sufficient amount for Mrs. Clark to have redeemed the property. See OCGA § 11-9-506.

Where the secured party effectively deprives the debtor of the right to redeem the collateral, the debtor has the right to recover “any loss caused by a failure to comply with the provisions of this part.” OCGA § 11-9-507 (1). The improper refusal to permit redemption is a conversion of the collateral. Mann v. United Mo. Bank, 689 SW2d 830, 831 (Mo. App. 1985). Therefore, if at or prior to the sale GMAC had sufficient funds from Mrs. Clark to meet the requirements of the Code, a valid claim might have been asserted against GMAC.

OCGA § 11-9-506 provides that a debtor may redeem the collateral “by tendering fulfillment of all obligations secured by the collateral as well as the expenses reasonably incurred by the secured party in retaking, holding, and preparing collateral for disposition, in arranging for the sale, and to the extent provided in the agreement and not prohibited by law, his reasonable attorneys’ fees and legal expenses.” The UCC Official Code Comment to § 9-506 observes that the entire principal owed plus all allowed expenses must be submitted, but the amount need not exceed that sought by the creditor. Draughon v. Gen. Fin. Credit Corp., 362 S2d 880, 885 (Ala. 1978). GMAC’s itemized statement of the amount owed just prior to sale showed a balance due of $126.75. Nevertheless, $1,358.85 of the debt consisted of attorney fees claimed. As was pointed out in the first division of this opinion, whether attorney fees are obtainable and whether they were reasonable has not been determined. Thus, the grant of summary judgment on this issue was premature and error.

Case No. 74429

7. a) GMAC cross-appealed on two issues. The first was the court’s language in ruling on the issue of intentional infliction of emotional distress: “as to any alleged tortious conduct on the part of the plaintiff not ruled upon in other motions for summary judgment, said motion for partial summary judgment is denied.”

GMAC’s apparent objection to the wording is that it is unnecessary because it embraces other tort claims made, when every other allegation was ruled on, leaving no further issues for adjudication. Mrs. Clark, on the other hand, insists that there are issues left to try.

1) She asserts that there remains a genuine issue of material fact as to intentional infliction of emotional distress. This issue was disposed of in Division 3, supra.

2) She also maintains that there is a genuine issue of material fact as to the fraud claim. This claim is disposed of infra.

3) Finally, she asserts that an unlawful trespass took place, presenting an issue for the factfinder. This issue was not raised below and therefore cannot be considered here. City of Buford v. Thomas, 179 Ga. App. 769, 772 (2) (347 SE2d 713) (1986).

Even if the wording of the ruling was erroneous, GMAC fails to show any harm suffered and consequently is not entitled to reversal. Estate of Sam Farkas v. Dougherty County School System, 178 Ga. App. 135 (342 SE2d 501) (1986). Since Mrs. Clark cannot demonstrate an overlooked issue, the language is merely surplus.

b) The trial court denied GMAC’s motion for summary judgment on the issues of fraud, conspiracy, and punitive damages. The latter is based on the fraud claim, which arises from a statement GMAC allegedly made that Mrs. Clark could defer further car payments until the car was repaired to her satisfaction. GMAC denies such a statement. If one essential element under a theory of recovery is lacking, the movants are entitled to summary judgment, regardless of issues of fact as to other essential elements. Friedman v. State Farm &c. Ins. Co., 177 Ga. App. 873, 874 (341 SE2d 275) (1986).

Decided December 1, 1987.

Alton D. Kitchings, Lloyd D. Murray, for appellant.

James M. Thomas, James L. Elliott, Susan B. Paul, for appellee.

Phillips v. Atlantic Bank &c. Co., 168 Ga. App. 590 (309 SE2d 813) (1983), is similar. The bank promised appellant that it would not foreclose on appellant’s property, contrary to the foreclosure provisions of the security deed. The court affirmed summary judgment for the bank, stating that “Appellee’s alleged ‘agreement’ not to foreclose also constitutes nothing more than an unenforceable, broken promise, unsupported by consideration. Consequently, appellant’s claim of fraud based on this alleged promise must fail.” Id. at 591.

Thus, assuming GMAC made the statement as Mrs. Clark claims, she clearly would not be able to maintain an action for fraud. Summary judgment was authorized.

On the main appeal 74396, summary judgment on the notice of intent to seek attorney fees and summary judgment on GMAC’s compliance with the contract and the law relevant thereto are reversed; the remaining partial grants of summary judgment are affirmed. On the cross-appeal 74429 the denial of GMAC’s motion for summary judgment on the claims for fraud, conspiracy and punitive damages is reversed, otherwise affirmed.

Judgments affirmed in part and reversed in part in 74396. Judgments affirmed in part and reversed in part in 74429.

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


author: Banke, Presiding Judge.

text:
    75235.
    DUNCAN v. DEITS.
    (363 SE2d 601)
   Banke, Presiding Judge.

The appellant and appellee were involved in an automobile collision, as a result of which the appellant was paid $28,582.73 in insurance benefits by his own insurance carrier. Thereafter, his insurer, exercising its right of subrogation under the policy, brought this action against the appellee in the appellant’s name, seeking to recover $22,607.23 for losses attributable to property damage sustained by the appellant. The appellee counterclaimed for $2,500. A jury trial resulted in a verdict for the appellant in the amount of only $5,000, and this appeal followed.

The collision occurred while the parties were driving their respective automobiles westbound on a five-lane road consisting of two westbound lanes, two eastbound lanes and a center turn lane. There was a solid, no-passing line located to the right of the broken line marking the boundary between the center turn lane and the inside westbound lane. There was also a red “NO” sign suspended over the center lane approximately 125-150 yards east of the location where the collision occurred; however, positioned over the center lane at the collision site were arrows indicating that a left turn was permissible from the center lane at that point.

After driving approximately 40 yards past the “NO” sign, the appellant, who had until then been traveling west in the innermost westbound lane of traffic, pulled into the center lane, from which he intended to make a left turn. At this time, the traffic in the innermost westbound lane of traffic was backed up to a “stop-and-go” condition. The appellant continued traveling west in the center lane for the next 75-100 yards, at a speed of 30-35 miles per hour, passing several vehicles on his right. He collided with the appellee as the appellee was attempting also to move into the center lane, at a point just underneath the left-turn arrow.

Over the appellant’s objection, the trial court gave the following jury charge, based on OCGA § 40-6-46 (a): “The Department of Transportation and local authorities are authorized to determine those portions of any highway under their respective jurisdictions where overtaking and passing or driving to the left side of the roadway would be especially hazardous and may, by appropriate signs or markings on the roadway, indicate the beginning and end of such zones and, when such signs or markings are in place and clearly visible ... to an ordinarily observant person, every driver of a vehicle shall obey the directions thereof. Such no-passing zones shall be clearly marked by a solid barrier line placed on the right-hand element of a combination stripe along the center or lane line.” The appellant complains on appeal that this charge was not authorized by the evidence. Held-.

From the evidence introduced at trial, the jury was authorized to conclude that the appellant had entered the center turn lane prematurely, prior to the point where the traffic sign authorized him to do so, and that the accident was the proximate result, at least in part, of his having used the center turn lane improperly for the purpose of passing or overtaking traffic in the through lanes. The charge was consequently authorized by the evidence and was not erroneous. See generally Southeast Transport Corp. v. Hogan Livestock Co., 133 Ga. App. 825 (5) (212 SE2d 638) (1975).

Decided December 1, 1987.

Ralph E. Hughes, for appellant.

Lawrence J. Hogan, V. Jane Reed, for appellee.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    75279.
    SIDWELL v. THE STATE.
    (363 SE2d 603)
   Banke, Presiding Judge.

The appellant was indicted for selling lysergic acid diethylamide (LSD) in violation of the Controlled Substances Act. He was found guilty of the lesser included offense of possessing the drug. He appeals from the denial of his motion for new trial.

Deputy Thomas Wheat testified that on July 16, 1985, while working as an undercover agent, he made a purchase of LSD from an unidentified source, using the appellant as an intermediary. The appellant admitted his involvement in the transaction and pled entrapment, testifying that he had agreed to procure the drug only in response to repeated entreaties made to him by a girl named Sandy, who had been with Deputy Wheat at the time the sale took place and who was shown to have been assisting the latter in his undercover work. The appellant maintained that he had finally acceded to Sandy’s requests in order “[t]o get this person to leave me alone and maybe to have a one-night relationship with this girl.” Held:

1. The appellant complains that the state was allowed to introduce evidence of similar transactions without giving him prior notice of its intention to do so, as required by Rule 31.3 of the Uniform Superior Court Rules.

The state did not in fact introduce evidence establishing any actual participation by the appellant in other drug transactions but did introduce evidence tending to show a pre-existing disposition on his part to participate in such transactions. After the appellant had presented his entrapment defense, Deputy Wheat was allowed to testify in rebuttal that, prior to the transaction charged in the indictment, he had approached the appellant on the street, in the company of another informant, to inquire about getting some LSD and that the appellant had responded by telling them “he had sold all he had, but was getting some more that night, and if we would contact him later on that evening that he would be able to provide it.” Deputy Wheat was further allowed to testify that about a month after the transaction charged in the indictment he had approached the appellant again in the company of yet another informant to ask him about procuring LSD and that on this occasion the appellant had stated, “I think I’ve already f--d up and sold to an undercover agent, and I’m going to lay low right now.”

Assuming arguendo that the above testimony constituted “evidence of similar transactions or occurrences” within the contemplation of Rule 31.3 of the Uniform Superior Court Rules, we hold that the state was entitled to introduce such evidence to rebut the appellant’s entrapment testimony, without complying with the notice requirements set forth therein. Subsection (D) of Rule 31.3 specifies that “[i]f upon trial of the case the defense places the defendant’s character in issue, evidence of similar transactions or occurrences, as shall be admissible according to the rules of evidence, shall be admissible, the above [notice] provisions notwithstanding.” Moreover, subsection (E) of Rule 31.3 specifies, in pertinent part, that “[n]othing in this rule is intended to alter the rules of evidence relating to impeachment of witnesses.”

The appellant testified on direct examination that when Sandy first approached him about procuring LSD, he told her he “didn’t know where to get any dope, and . . . didn’t know anything about dope, and . . . didn’t mess with it.” He further testified on cross-examination, without interposing any objection to the state’s questioning in this regard, that he had not had any prior “involvements” with drugs. Indeed, the entire thrust of his entrapment defense was that his participation in the sale for which he was being tried was an isolated occurrence, prompted by the repeated entreaties of Sandy rather than by any prior disposition on his part to sell drugs. Under these circumstances, we conclude that he voluntarily placed his character in issue within the contemplation of subsection (D) of Rule 31.3, supra, with the result that the state was entitled to introduce evidence of similar transactions and occurrences pursuant both to that subsection and to subsection (E), supra, without complying with the notice provisions which would otherwise have governed the use of such evidence.

2. The appellant contends that the trial court committed reversible error by charging the general provisions of OCGA § 16-13-30 (b) (to the effect that it is unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance except as specifically authorized by the Controlled Substances Act), when the indictment charged him only with selling the controlled substance in question.

“A new trial will not usually be granted if the court charges an entire statute or code provision even though a part may be inapplicable to the case at bar. ‘However, it is reversible error to instruct the jury that an offense may be committed in more than one manner where only one manner is alleged in the indictment and no remedial instructions are given to limit the jury’s consideration to that particular manner.’ (Cits.)” Cauthen v. State, 177 Ga. App. 565, 567 (4) (340 SE2d 199) (1986).

Decided December 1, 1987.

Harry J. Fox, Jr., for appellant.

G. Theron Finlayson, District Attorney, Edward D. Lukemire, Assistant District Attorney, for appellee.

After instructing the jurors on the general provisions of OCGA § 16-13-30 (b), supra, the trial court specifically charged them that the only offenses of which the appellant could be found guilty were selling LSD or, as a lesser included offense, possessing LSD. By its verdict, the jury demonstrated that it had not been misled or confused by the court’s prior instructions setting forth other types of conduct prohibited by the Act. Accordingly, no ground for reversal is established by this enumeration of error. See Searcy v. State, 168 Ga. App. 233 (1) (308 SE2d 621) (1983).

3. The appellant contends that the trial court erred in charging the jury that the testimony of one of the three rebuttal witnesses called by the state could be considered only for impeachment purposes, without giving similar limiting instructions with respect to the testimony of the other two rebuttal witnesses. The rebuttal witness whose testimony was the subject of the limiting instructions had contradicted certain testimony previously offered by the appellant regarding the content of certain statements the appellant had made to police following his arrest. The testimony of the other two rebuttal witnesses did not concern statements made by the appellant prior to trial but rather conduct on his part which could be viewed as inconsistent with his entrapment testimony. With respect to the testimony of these latter witnesses, the appellant waived any right to limiting instructions which he might otherwise have had by failing to request such instructions in the trial court. See State v. Byrd, 255 Ga. 665 (341 SE2d 455) (1986).

4. The evidence, considered in its entirety, was sufficient to enable a rational trier of fact to reject the appellant’s entrapment defense and to find him guilty of possession of LSD beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Carley, Judge.

text:
    74607.
    HART v. THE STATE.
    (363 SE2d 599)
   Carley, Judge.

In a single indictment, appellant and four others were charged with rape, kidnapping with bodily injury, false imprisonment, and two counts of aggravated sodomy. Separate trials were held. At appellant’s trial, the jury returned verdicts of guilty on the charges of rape and false imprisonment and verdicts of not guilty on the remaining charges. Appellant appeals from the judgments of conviction and sentences entered on the guilty verdicts.

1. Over appellant’s objection, the trial court admitted evidence of a sexual assault which had been committed by a co-indictee. This sexual assault had occurred on the same night as the crimes for which appellant was being tried but appellant was not directly involved in its commission. The trial court admitted the evidence of the sexual assault by the co-indictee with instructions to the jury to consider it only if a conspiracy between the co-indictee and appellant was found to exist. Appellant enumerates the admission of this evidence as error.

“ ‘A criminal conspiracy has been defined as “a combination or agreement between two or more persons to do an unlawful act, and this may be established by proof of acts and conduct, as well as by direct proof or express agreement.” [Cit.] A criminal conspiracy may be established by evidence that two or more persons, by some concerted action, combined to accomplish a criminal purpose by criminal meanp. [Cit.]”’ Walls v. State, 83 Ga. App. 318, 320 (2) (63 SE2d 437) (1951). The indictment in this case did not allege the existence of a conspiracy between appellant and the other co-indictees. However, “ ‘[ijt has been repeatedly held by this court that a conspiracy may be proved, though not alleged in the indictment or accusation. [Cits.]’ [Cit.]” Bruster v. State, 228 Ga. 651, 652 (2) (187 SE2d 297) (1972). There was sufficient evidence produced at appellant’s trial to authorize the trior of fact to find that a conspiracy existed to commit a sexual assault upon two females and that appellant and his co-indictees were members of that conspiracy. “ ‘When individuals associate themselves together to do an unlawful act, any act done in pursuance of that association, by any one of the associates would, in legal contemplation, be the act of each of them.’ [Cits.]” Kimbrel v. State, 160 Ga. App. 40, 41 (285 SE2d 775) (1981). Thus, the evidence authorized a charge on the law of conspiracy, and the trial court so charged. The trial court also repeatedly instructed the jury to consider the testimony regarding the criminal conduct of the co-indictee as relevant evidence against appellant only if a conspiracy was found to exist. The trial court did not err in admitting the testimony.

2. Appellant enumerates as error the trial court’s denial of two of his motions for mistrial predicated upon the State’s introduction of certain evidence. In both instances, the only objection raised by appellant’s counsel was that the evidence was “irrelevant, immaterial and prejudicial” and warranted a mistrial. “A mistrial will not lie where the evidence is admitted without objection. [Cit.]” McCormick v. State, 152 Ga. App. 14, 15 (2) (262 SE2d 173) (1979). “An objection to evidence on the ground that it is irrelevant, immaterial and prejudicial is ‘entirely too vague and general to present any question for determination by the trial court, and the overruling of this objection did not constitute reversible error. [Cits.]’ [Cit.] ‘[A] mere general objection to evidence that it is immaterial, inadmissible and prejudicial is too general to present any question for decision. [Cit.]’ [Cit.]” Croom v. State, 165 Ga. App. 676, 677 (3) (302 SE2d 598) (1983). On the day following the denial of his motions for mistrial, appellant attempted to enlarge upon the grounds of his objection to the evidence and to renew the motions for mistrial. However, these efforts came too late. Garner v. State, 180 Ga. App. 146, 147 (1) (348 SE2d 690) (1986); Dye v. State, 177 Ga. App. 824 (341 SE2d 314) (1986). This enumeration is without merit.

3. Prior to admitting appellant’s in-custody statement into evidence, the trial court conducted a lengthy Jackson-Denno hearing. Although not without conflict, the evidence produced at that hearing did support the trial court’s finding that appellant’s statement had been freely and voluntarily made. “A trial court’s findings as to factual determinations and credibility relating to the admission of in-custody statements will be upheld on appeal unless clearly erroneous. [Cit.]” Stephens v. State, 170 Ga. App. 342, 343 (317 SE2d 627) (1984). See also Williams v. State, 167 Ga. App. 42, 44 (3) (306 SE2d 46) (1983). The trial court did not err in admitting appellant’s in-custody statement into evidence.

4. Appellant took the stand in his own defense. On cross-examination, he was asked: “You were smoking pot that night, weren’t you?” Appellant’s counsel objected and moved for a mistrial. The trial court sustained the objection, but denied the motion for mistrial. Appellant enumerates the denial of his motion for mistrial as error.

“The [S]tate is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. [Cit.] This is true even if the defendant’s character is incidentally placed in issue.” Satterfield v. State, 256 Ga. 593, 598 (6) (351 SE2d 625) (1987). “The [S]tate is entitled to inform the jury of all the circumstances surrounding the commission of the crime or crimes charged and we find no error in admitting this evidence as part of the res gestae even though it may have incidentally placed the defendant’s character in evidence. [Cit.]” Chambers v. State, 250 Ga. 856, 859 (2) (302 SE2d 86) (1983). See also Wolke v. State, 181 Ga. App. 635, 636 (2) (353 SE2d 827) (1987). Accordingly, if the trial court erred, it was only insofar as it sustained appellant’s objection to the question and not insofar as it denied appellant’s motion for mistrial. Evidence as to whether appellant was under the influence of alcohol or drugs on the night in question was part of the res gestae of the crimes and was admissible as such.

Decided November 23, 1987

Rehearing denied December 2, 1987

Albert F. Burkhalter, Jr., for appellant.

Frank C. Winn, District Attorney, J. David McDade, Assistant District Attorney, from Douglas Circuit, for appellee.

Judgments affirmed.

Banke, P. J., and Benham, J., concur.


text:
    74704.
    CARDER v. K-MART, INC.
    (363 SE2d 593)
   McMurray, Presiding Judge.

Plaintiff Carder brought this action against defendant designated as “K-Mart, Inc.” for damages sustained when plaintiff allegedly slipped in a puddle of water in defendant’s store and fell. Plaintiff alleged that she was unaware of the hazardous condition while defendant knew or should have known and warned plaintiff that such hazardous condition existed.

Defendant, in its answer, denied the material allegations of the complaint and maintained its “correct name is K-Mart Corporation.” Subsequently, defendant moved for summary judgment. The superior court granted defendant’s motion for summary judgment and plaintiff appeals. Held:

The evidence stated most favorably to plaintiff shows that: While the fall occurred on a rainy day, it was not raining at the time plaintiff arrived at defendant’s store. After arriving at the store plaintiff parked and walked across the parking lot that “wasn’t wet then” but “was damp.” Plaintiff entered the store by entering a set of outer doors, traversing a vestibule area and passing through an interior entrance door. There were no wet weather mats or any other caution, warning or wet floor signs in the store. After passing through the interior entrance doors plaintiff walked toward the information desk. The vestibule area and several steps into the store appeared and felt to be dry and non-slippery. Fifteen or twenty feet into the store plaintiff slipped due to a puddle of water. The puddle which was approximately three feet by three feet in size was not seen by plaintiff prior to her fall because of the shiny gloss of the floor. Shortly before plaintiff fell another customer entered the store and saw the area of rainwater, in which plaintiff fell, located just inside the entrance in plain view. This customer had carefully negotiated his way through and around the wet area. At the time of plaintiff’s fall an assistant manager of the store, whose responsibilities included checking the floor periodically, was standing five feet away. The assistant manager testified that he had his back to plaintiff, did not see her fall and did not see the puddle in which plaintiff slipped. Immediately after, plaintiff overheard the assistant manager of the store, who had come to the area of the fall, state to another person that he “was afraid that this was going to happen.”

A few minutes after the fall plaintiff saw store employees rolling a large cart in the direction of the store entrance. On the cart were mops, a wet weather mat and wet floor signs.

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327).

“Knowledge on the part of the proprietor that there is a foreign substance on the floor that could cause patrons to slip and fall may be either actual or constructive. In some cases the proprietor may be held to have constructive knowledge if the plaintiff shows that an employee of the proprietor ‘was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard.’ [Cits.]” Alterman Foods v. Ligon, 246 Ga. 620, 622, supra. Although in the case sub judice defendant’s assistant manager testified that he was not aware of the puddle which caused plaintiff’s fall, the assistant manager’s physical proximity to the area of the fall strongly suggests that he could have seen the puddle and taken action to prevent plaintiff’s injury. Rodriguez v. Piggly Wiggly Southern, 185 Ga. App. 79 (363 SE2d 291).

Further issues of fact remain as to plaintiff’s knowledge of the puddle. “Although plaintiff knew it [had been] raining when she entered defendant’s [store], she averred that she did not know that water had accumulated inside the [store] entrance. Accordingly, this case is governed by Weight Watchers of Greater Atlanta v. Welborn, 165 Ga. App. 290 (299 SE2d 760). In Weight Watchers of Greater Atlanta v. Welborn, supra, as was done in Telligman v. Monumental Properties, Inc., 161 Ga. App. 13 (288 SE2d 846), this court ‘rejected the argument that the equal knowledge of the parties as to weather conditions would bar the plaintiff from recovering, holding that the plaintiff would be barred only if she knew of the specific hazard which caused her fall.’ Since plaintiff averred she did not know of the water puddle, the grant of summary judgment to defendant was improper.” Rodriguez v. Piggly Wiggly Southern, Inc., supra.

Decided November 19, 1987

Rehearing denied December 2, 1987

John E. Talmadge, for appellant.

Steven P. Gilliam, Donald T. Hunt, for appellee.

Judgment reversed.

Sognier, J., concurs. Beasley, J., concurs in the judgment only.