author:
Sognier, Judge. Beasley, Judge, McMurray, Presiding Judge,
      Benham, Judge,

text:
    75373.
    HARGROVE et al. v. PHILLIPS.
    (368 SE2d 123)
   Sognier, Judge.

Jack Hargrove, Ruth Hargrove Adams, James Hargrove and S. A. Hargrove are the defendants in an ongoing civil action regarding the administration of an estate by Mary Phillips. When the attorney representing all four defendants withdrew, Jack Hargrove and Ruth Hargrove Adams retained C. B. King & Associates (King) to represent them. Although it is uncontroverted that King’s representation of Jack Hargrove and Ruth Hargrove Adams did not include James Hargrove, nevertheless, King filed a general entry of appearance on behalf of “the Defendants,” who were denominated as including not only Jack Hargrove and Ruth Hargrove Adams, but also S. A. Hargrove and James Hargrove. King, as the designated attorney of record for the four, was subsequently served with certain pleadings filed by a third party. Several months later, King sought to withdraw as counsel for James Hargrove due to an alleged conflict of interest but sought to continue representation of the remaining parties. In an order filed March 5,1987, the trial court ordered King to withdraw as counsel for all parties involved because of King’s expressed perception of conflict of interest. Jack Hargrove and Ruth H. Adams moved for reconsideration of the trial court’s order on the basis that King had never come into physical or financial contact with James Hargrove nor had James Hargrove ever retained King to represent him. In an order filed May 29, 1987, the trial court affirmed its disqualification of King and pursuant to OCGA § 15-19-9 imposed the mandatory minimum fine of $500 on King, see M & M/Mars v. Jones, 129 Ga. App. 389, 392-393 (8) (199 SE2d 617) (1973), for King’s appearance in court on behalf of a person by whom King uncontrovertedly had not been employed. Jack Hargrove and Ruth H. Adams filed their notice of appeal on June 25, 1987 from the trial court’s order dated May 29, 1987.

We are unable to address the merits of appellants’ first enumeration since the order holding King in contempt under OCGA § 15-19-9 imposed the sanction solely on King, who is not a party to this appeal. See generally Smith v. Gwinnett County, 182 Ga. App. 875 (357 SE2d 316) (1987). “ ‘A party not aggrieved by the judgment of the trial court is without legal right to except thereto, since he has no just cause of complaint.’ [Cits.]” Cooper Motor Lines v. B. C. Truck Lines, 215 Ga. 195 (1) (109 SE2d 689) (1959). The only enumeration asserted by appellants personal to them contends error in the trial court’s order requiring King to withdraw from the representation of any of the parties involved. However, this order was entered March 5, 1987 and appellants’ notice of appeal was not filed until June 25, 1987. Appellants’ motion for reconsideration was not one of the three statutory motions that extend the time for filing a notice of appeal, OCGA § 5-6-38; Guthrie v. D. L. Claborn Buick/Opel, 180 Ga. App. 128 (348 SE2d 523) (1986), so it follows that this appeal is untimely and must be dismissed.

Appeal dismissed.

Birdsong, C. J., concurs. Banke, P. J., Carley, and Beasley, JJ., concur specially. Deen, P. J., McMurray, P. J., Pope, and Benham, JJ., dissent.

Beasley, Judge,

concurring specially.

I agree but concur specially because the appeal suffers from another threshold infirmity which ought to be noticed so as not allow the implication that the order was directly appealable. The order appealed from, whether it be in law the order of March 5 or that of May 29, is not a final order from which a direct appeal will lie. OCGA § 5-6-34 (a). The procedure provided in subsection (b) was not followed here. Nor has it been shown that the certificate and application avenue for interlocutory appeals inadequately protects the right of parties to review of a decision affecting their choice of counsel. To point in this case, the trial judge’s careful and lengthy consideration of the question, twice, bears witness to that court’s recognition of the magnitude of the ruling.

I am authorized to state that Presiding Judge Banke and Judge Carley join in this special concurrence.

McMurray, Presiding Judge,

dissenting.

On March 5, 1987, the trial court entered an order in which appellants’ counsel was disqualified and appellants were ordered to obtain new counsel if they so desired. The order was issued by the court sua sponte without a hearing. Appellants moved for reconsideration and a hearing was held upon the disqualification issue. Thereafter, on May 29,1987, the trial court issued a lengthy (15 page) order in which it made findings of fact and conclusions of law based, in part, upon the evidence adduced at the hearing. In its order, the trial court again ruled that appellants’ counsel was disqualified and that appellants should obtain new counsel. A ruling upon the motion for reconsideration, however, was not made. The trial court stated that appellants’ present counsel was to be “withdrawn by this order and judgment.” (Emphasis supplied.) The trial court also advised appellants that the burden was upon them to keep the court apprised of their mailing addresses; that the burden was upon them to prepare for trial; and that they could suffer adverse consequences if they failed to heed the trial court’s instructions. Finally, the trial court imposed a fine upon appellants’ counsel pursuant to OCGA § 15-19-9. Appellants appealed from the May 29, 1987, order on June 25, 1987.

In my view, the appeal is not from an order denying a motion for reconsideration. Rather, it is a timely appeal from a substantive order in which the merits of the issue on appeal were decided. Compare Morton v. Morton, 163 Ga. App. 830 (296 SE2d 362), with Gordon v. Weldon, 154 Ga. App. 531 (268 SE2d 796). Accordingly, we can and should consider appellants’ appeal.

It could be argued that an order disqualifying counsel is not final and that, therefore, it is not directly appealable. See OCGA § 5-6-34 (a) (1). See 5 ALR4th 1251-1265 as to appealability and nonappealability in other jurisdictions. In Stoddard v. Bd. of Tax Assessors, 173 Ga. App. 467 (326 SE2d 827), the trial court granted a motion to disqualify counsel and we granted an interlocutory appeal. In that case, however, we did not directly rule upon the appropriate appellate procedure.

I am of the opinion that an order disqualifying counsel is appeal-able directly. A disqualifying order necessarily impinges upon a party’s legitimate right to employ counsel of his choice. And such an order can cause irreparable and immeasurable harm if an appeal must await the entry of final judgment. See generally Hubbard v. State, 254 Ga. 694 (333 SE2d 827). If appellants are denied their choice of counsel “at this stage, a situation is created which cannot be completely rectified. If [appellants] should lose on the merits, [they] would have an almost insurmountable burden to show [their] loss was due to the change of counsel. If [they] should prevail on the merits, the disqualified attorney has no remedy for his loss of reputation and fees.” Skahan v. Powell, 653 P2d 1192, 1195 (Kan. App. 1982). See also Russell v. Mercy Hosp., 472 NE2d 695 (Ohio 1984).

In sum, appellants’ appeal was not untimely filed and it is appealable directly. Accordingly, I respectfully dissent from the judgment of dismissal.

I am authorized to state that Presiding Judge Deen, Judge Pope and Judge Benham join in this dissent.

Benham, Judge,

dissenting.

Being unable to agree with either the majority opinion or the special concurrence, I must not only join Presiding Judge McMurray in his dissent, but must also register my own. While I agree with Presiding Judge McMurray that an order which deprives a litigant of his chosen counsel is of such a material nature as to require a direct rather than a discretionary appeal, I am compelled to file a separate dissent raising certain procedural questions of grave concern to me.

Because of the unusual course of events in this case, I see a need to set out a detailed statement of facts in my dissent. Jack Hargrove, Jr., Ruth Hargrove Adams, Sherrilyn Ann Hargrove, and James R. Hargrove retained the law firm of Bowles & Bowles to represent them in matters pertaining to the estate of Jack Hargrove, Jr. For reasons not contained in the record, the Bowles firm withdrew from representation, and two family members, Jack Hargrove, Jr., and Ruth Hargrove Adams, consulted the firm of C. B. King & Associates for representation. Pursuant to that contact, C. B. King & Associates filed on November 16,1986, the following appearance in the Superior Court of Randolph County:

“ENTRY OF APPEARANCE

“NOW COMES undersigned counsel pursuant to U.S.C.R., Rule 4.2 and 4.6, to notify this Honorable Court of his retention and entry of record in the above-entitled matter, on behalf of the Defendants.”

After receiving several documents pertaining to the case, the King firm on February 27, 1987, notified James Hargrove, Jr. and the court that it was withdrawing from representation of James Hargrove, Jr., because of a possible conflict of interest. On March 4, 1987, Judge Lowrey S. Stone of the Pataula Judicial Circuit, sua sponte, issued an order barring the King firm from representing any of the defendants, Jack Hargrove, Jr., Ruth Hargrove Adams, Sherrilyn Ann Hargrove, and James R. Hargrove.

Immediately after receiving the court order of disqualification, the King firm filed a motion for reconsideration, with affidavits attached, on behalf of Jack Hargrove, Jr. and Ruth Hargrove Adams. The trial court for the first time held a hearing on the motion for reconsideration as to the disqualification issue. At that hearing attorney C. B. King, Jack Hargrove, Jr., Ruth Hargrove Adams and James R. Hargrove testified. Although the testimony was equivocal as to whom the King firm represented at the time it filed the “notice of appearance,” James Hargrove testified that he had no objection to the King firm representing Jack Hargrove, Jr. and Ruth Hargrove Adams, and Jack Hargrove, Jr. and Ruth Hargrove Adams testified that they desired for the King firm to represent them. Evidence adduced from the King firm at the hearing showed that the firm was attempting to maintain the status quo by filing the appearance. The court took the matter under consideration and on May 29,1987 issued another order confirming the disqualification of March 4, 1987 and, in addition, sua sponte held attorney King in contempt for filing the appearance on behalf of all the defendants in November 1986 and imposed a $500 fine pursuant to OCGA § 15-19-9. The King firm filed a notice of appeal from the May 29, 1987 order on behalf of Jack Hargrove, Jr. and Ruth Hargrove Adams.

Decided March 7, 1988

Rehearing dismissed March 24, 1988.

Appellants enumerate as error (1) the trial court’s sua sponte order barring the King firm from representing any of the defendants and (2) the court’s sua sponte order holding C. B. King in contempt and imposing the maximum fine of $500.

In dismissing the appeal, the majority relies on Smith v. Gwinnett County, 182 Ga. App. 875 (357 SE2d 316) (1987), which states in essence that only the real party in interest can bring an action. Judge Beasley bases her special concurrence on the failure to file an interlocutory appeal since the order lacked the finality requirements of OCGA § 5-6-34.1 dissent also to call attention to OCGA § 9-11-17 (a), which sets out the role of the real party in interest: “Every action shall be prosecuted in the name of the real party in interest. . . [No] action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.”

Since the injured party in the contempt finding was the attorney, the direct appeal should have been brought in his name and not the name of the parties to the main lawsuit. Therefore, under the authority of S. D. H. Co. v. Stewart, 135 Ga. App. 505 (218 SE2d 268) (1975), which interprets OCGA § 9-11-17 (a), I would remand the case to the trial court with direction that the attorney be allowed under OCGA § 9-11-21 to join the appeal so that the matters of vital interest to all parties can be considered. Said joinder would be permitted within 20 days of receipt of the remittitur and further appellate rights would be preserved.

I am authorized to state that Presiding Judge Deen, Presiding Judge McMurray, and Judge Pope join in this dissent.

Carl A. Bryant, for appellants.

James E. Friese, David A. Kendrick, for appellee.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    75734.
    HOPKINS v. HOPKINS.
    (367 SE2d 825)
   Beasley, Judge.

The trial court granted summary judgment against plaintiff on his suit seeking contribution from his former wife for payments made on two debts which he contends were joint obligations incurred during their marriage. The first resulted from a car lease they entered in 1983 with Arlington Toyota, which lease was assigned to General Electric Credit Auto Lease, Inc. (G.E.C.A.L.). The second debt was a joint VISA credit account with Sun Bank.

The parties separated in April 1985 and later defaulted on the lease payments and relinquished possession of the car. Plaintiff husband received notice of a deficiency of $3,185.07 on which he paid $2900 from July 1985 to July 1987. In July 1985 the parties executed a separation agreement which was incorporated into the divorce decree in September. The former wife instituted voluntary bankruptcy proceedings in November, scheduling Sun Bank VISA as an unsecured creditor but not listing G.E.C.A.L. or plaintiff. She was discharged as of July 1986.

Plaintiff asserts that he has paid $2,375.01 on the VISA account since September 1986 and is entitled to recover half of that and half of the $2,900 he paid on the car lease. Defendant admitted that as of May 1985 the parties were jointly indebted to G.E.C.A.L. for $3,185 and as of November 1985 to VISA for $2,500.

Defendant contends plaintiff is precluded from recovering by the release contained in their settlement agreement of July 1985 and by her discharge in bankruptcy. Plaintiff contends that the right of contribution under OCGA § 23-2-71 arises not when the joint obligation is incurred, but when one obligor pays more than his fair share of the liability, citing Sherling v. Long, 122 Ga. 797, 798 (50 SE 935) (1905), and Snyder v. Elkan, 187 Ga. 164, 171 (199 SE 891) (1938).

The settlement agreement provides: “Except as herein specifically provided, the parties do mutually remise, release and forever discharge each other from any and all actions, suits, debts, claims, demands and obligations whatsoever, both in law and. equity, which each of them ever had, now has or may hereafter have against the other upon or by reason of any matter, cause or thing up to the day of execution by the parties hereto of this agreement.”

In construing the language of the provision the court reasoned that it released each “from liability for any cause of action which arises by reason of any matter, cause, or thing up to the agreement’s execution date. The parties’ joint liability on both debts constitutes a matter, cause, or thing which existed prior to execution of the agreement. Thus, this action for contribution is a right of action which arose by reason of a matter, cause or thing in existence prior to the date of execution of the agreement.”

Decided March 8, 1988

Rehearing denied March 24, 1988.

Patrick J. Fox, for appellant.

James R. Dollar, Jr., for appellee.

A release or settlement agreement is a contract subject to construction by the court. McKie v. McKie, 213 Ga. 582, 583 (2) (100 SE2d 580) (1957). It is governed by state law applicable to contracts in general. Wong v. Bailey, 752 F2d 619, 621 (11th Cir. 1985); Blum v. Morgan Guar. Trust Co., 709 F2d 1463, 1467 (11th Cir. 1983). The cardinal rule of construction is to determine the intention of the parties, McKie, supra, and Burch v. Ragan, 92 Ga. App. 605, 607 (1) (89 SE2d 541) (1955). But no construction is “required or even permissible when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation.” Cincinnati Ins. Co. v. Davis, 153 Ga. App. 291, 294 (265 SE2d 102) (1980). Accord Heyman v. Fin. Properties Developers, 175 Ga. App. 146, 147 (332 SE2d 893) (1985). Because the language of the release provision was subject to only one reasonable interpretation, the trial court’s construction is sound.

Judgment affirmed.

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


author: Birdsong, Chief Judge.

text:
    75748.
    HUDDLESTON CONCRETE COMPANY v. SAFECO INSURANCE COMPANY OF AMERICA.
    (368 SE2d 117)
   Birdsong, Chief Judge.

This is a suit by a materialman (Huddleston Concrete Co.) against the bond of the contractor (Williams Bridge Co., Inc.) filed after the subcontractor (Coastal Bridge Co.) defaulted with $34,078.61 left owing to Huddleston. The trial court granted summary judgment to the appellee bonding company (Safeco) on the basis that under OCGA § 36-82-104 (b) Huddleston was required to, but did not, give written notice of its claim to the contractor within 90 days from the last delivery. The trial court held that the evidence of both parties clearly shows the contractor “did not . . . assume Coastal Bridge’s contract obligations,” and that Huddleston had no “direct contractual relationship, express or implied,” with the contractor, so as to excuse notice.

In support of its case Huddleston presents the affidavit of its officer, Raven, who states under oath that the contractor first approached Huddleston to supply concrete to the contractor for its work on the 1-675 project, whereupon Huddleston (apparently) quoted a price to the contractor. The contractor then asked Huddleston to supply concrete at the same rate to a subcontractor doing a portion of the contractor’s work. Huddleston made a delivery to the subcontractor, Coastal Bridge, before it made a delivery to the contractor. Deliveries continued apace, with Williams Bridge paying for all the deliveries to it; Huddleston billed the subcontractor separately.

Ultimately Mike Williams, the principal of the contractor, met with Huddleston’s officer Raven in Williams’ home and told Raven that the subcontractor was about to declare bankruptcy. Raven told Williams that Huddleston had not been paid by the subcontractor for $34,078.61 in materials. Raven then told Williams that if the subcontractor was going to declare bankruptcy, Huddleston needed to notify the contractor’s bonding company of the debt. Williams told Raven that he (Williams) had already by letter notified the bonding company of the debt. Thereafter Huddleston’s officer, in a telephone conversation with Williams, learned of a written assignment to the contractor of retainage due the subcontractor, for the payment of six creditors including Huddleston. Raven states that “[b]ased on Williams’ assurances to Affiant that Williams Bridge would pay Coastal’s debt of $34,078.61 to Huddleston out of retainage after the project was complete, Affiant did not pursue a claim to the bonding company.” Thereafter, Huddleston continued to deliver concrete to the contractor and was paid for those deliveries. Naturally, Huddleston did not receive payment out of the retainage for its deliveries to the subcontractor. Hence the parties find themselves in court, with the surety contesting the claim on grounds of no notice, pursuant to OCGA § 36-82-104. Held:

1. One thing must be settled first. The parties and the trial court have repeatedly referred to the statutory requirement as being that one with no “direct contractual relationship” with the contractor must give notice. Some federal cases interpreting the parallel Miller Act, 40 USCA § 270 (b), and a chief Georgia case also refer to this necessity of the supplier to prove a direct contractual relationship with the contractor in order to dispense with notice. Porter-Lite Corp. v. Warren Scott Contracting Co., 126 Ga. App. 436, 438 (2) (191 SE2d 95); see United States v. Hesselden Constr. Co., 404 F2d 774 (10th Cir. 1968). This is not what the statute says. It says: “(b) Every person entitled to the protection of the payment bond . . . shall have the right to bring an action on such payment bond . . . provided, however, that any person having direct contractual relationship with a subcontractor, but no contractual relationship express or implied with the contractor furnishing such payment bond, shall have the right of action upon the payment bond upon giving written notice to the contractor within 90 days from the day [of the last delivery]. . . .” (Emphasis supplied.)

Therefore, it is clear that the statute does not, as the surety repeatedly contends and as the trial court held, require the appellant to prove a direct contractual relationship with the contractor in order to dispense with notice. The distinction is obvious.

The 90-day notice requirement protects the contractor by fixing the date beyond which he will not be liable for subcontractor debts; but this object is “subsidiary” to the main purpose of the whole act, which is to protect the materialmen. Noland Co. v. Allied Contractors, 273 F2d 917, 920-921 (4th Cir. 1959). See also American Cas. Co. v. Southern Materials Co., 261 F2d 197, 200 (4th Cir. 1958). Therefore, any ambiguity in the act should be resolved in support of the main object of the whole law, which is to protect materialmen. Noland Co., supra at 921.

Moreover, the Georgia act giving materialmen the right to sue on the contractor’s bond on public works projects, is a remedial law and therefore is to be liberally construed to secure that object. See United States v. James Stewart Co., 195 FSupp. 715, 716 (1961); United States ex rel. Hargis v. Md. Cas. Co., 64 FSupp. 522, 526 (1946); Carey v. Giles, 9 Ga. 253. To put a finer point on it, this “liberal construction” has also been interpreted to mean that in construing a remedial statute, limitations which would take away the right from one to whom the statute gave it, must be express and not subject to varying interpretations. Pullen v. Otis Elevator Co., 292 FSupp. 715 (1968). This means that the appellant’s right to maintain an action on the bond in this case will not be governed by a greater or different limitation than the statute expressly provides. No more should be en-grafted onto the term “[implied] contractual relationship” than is clearly said.

The purpose of the notice requirement is to protect the contractor, so that he may with impunity pay subcontractors if no notice of claims by materialmen and suppliers has been filed. United States v. James Stewart Co., supra. Therefore, at the very least, whatever it means, the precise language of the statute indicates in policy that if in the circumstances of the case the materialman has such a relationship with the contractor that the contractor is bound to know of the claim, or especially bound to pay it, the 90-day notice is not required. In interpreting the same requirement in the Miller Act, the federal court in United States v. James Stewart Co., supra, considered it significant that a course of dealing among contractor, subcontractor and materialman provided the contractor with “more notice of the claim than it would have had if [the materialman] had merely complied with the notice provisions of the Miller Act,” and that if the material-men did. not give notice, nevertheless, the contractor was not prejudiced. In that case there was no agreement by the contractor to assume the subcontractor’s debt, but it was found that the course of dealings of the parties created an “implied contract” when the contractor, with full knowledge of the claim, urged the materialman to continue deliveries to it after the subcontractor’s default and promised to take care of the account. Id. pp. 718-719. Other federal cases have interpreted situations involving something less than a direct, express contract between materialman and contractor, as being nevertheless an implied contractual relationship within the meaning of the whole act as liberally construed. See United States v. Thacker Constr. Co., 478 FSupp. 299 (1979); United States v. Md. Cas. Co., 64 FSupp. 522, supra.

It seems clear that the phrase “no contractual relationship, express or implied with the contractor” is carefully contrived to avoid any implication that anything so strong as a direct, definite contract or an assent or a meeting of the minds, is required. Some cases have held the term amounts to a requirement that there be an implied-in-fact contract, which after all is a true contract and requires a meeting of the minds. United States v. Md. Cas. Co., supra; 17 CJS 560-562, Contracts, § 4. But logic and the underlying policy of the act dictate the conclusion that if the legislature had intended anything so strong as a true contract to be proved, it would have used those words so handy at their disposal, such as “direct,” “contract,” “agreement,” and a few others. Liberally construed to effect the remedial purposes of the act, the term refers to a status or duty implied-by-law (id. p. 563) and treated as a “contractual relationship” through legal fiction for purposes of giving the materialman the remedy of the right of action on the bond. See generally 6 Encyclopedia of Ga. Law 92, Contracts, § 41. A “contractual relationship” is not necessarily exactly the same thing as a “contract.” Thus, within the meaning of OCGA § 36-82-104, a course of dealing between the contractor and materialman that does not amount to a direct contract or agreement at all, might establish an indirect relationship that implies a contractual status imposed by law. It is difficult to get much more than that out of the phrase “no contractual relationship, express or implied.”

Moreover, if we concede for the moment that the language requires an assent, an actual implied-in-fact contract, still this language is not in the least particular about what kind of contract is required to dispense with notice. The statute says “any person having ... no contractual relationship,” as in “not one,” “not any,” or “without any.” No basis exists to leap to the assumption that by this contrivedly casual language the legislature meant to say notice is excused only if the materialman has a direct agreement with the contractor to pay the subcontractor’s debt. To the contrary, the entire passage assumes, that as far as the debt is concerned, the materialman’s “direct contractual relationship” is with the subcontractor. Obviously, then, the link with the contractor is more tenuous, since that is the whole reason for the existence of a statute giving relief on a contractor’s bond to those who otherwise would have no relief because their direct contract was with someone else.

As to what kind of “[implied] contractual relationship” is required, this being a statute seeking to give the creditor a claim on the contractor’s bond while devising a means to protect the contractor, the policy is served by judging whether the materialman’s “[implied] contractual relationship” with the contractor, whatever it is, is sufficient to give him actual or constructive notice of the subject claim.

In an early case, United States v. Praught, 270 F2d 235 (1st Cir. 1959) (which also thought for some reason the statute said notice was excused of one with “direct contractual relations” with the general contractor, id. p. 237) the federal court held that notice was not excused on the basis of a separate direct contract between contractor and sub-subcontractor involving other aspects of the work project. However, this holding was premised on the fact that such a relationship, though direct, “did not operate to increase the probability of notice to [contractor] of [subcontractor’s] obligation to [the] plaintiff.” Id. at 238. The court held: “These considerations [the object of protecting the contractor] lead us to believe that the intention of Congress was that notice of claim is necessary unless contractual relations, express or implied, between the prime contractor and the claimant existed with respect to the job out of which the claim sought to be enforced against the prime contractor and his surety arose.” (Emphasis supplied.) Id. at 238. But Congress could easily have said this if this was its intention. In the requirement of notice from one “with no contractual relationship with the contractor, express or implied,” particularly when juxtaposed to the requirement of a “direct contractual relationship” with the subcontractor, we find no expression of intent as to what kind of “contractual relationship with the contractor express or implied,” is needed. It is more logical, and less a strain on the language of the statute, to say that the policy of the act is that such contractual relations provide the contractor with a “means of knowing the [particular liability of his subcontractor],” or “operate to increase the probability of notice of [the contractor] to [the sub-subcontractor]” (id. at 238), both of which were lacking in the Praught case.

In United States v. Van de Riet, 316 F2d 912 (4th Cir. 1963), cited by the appellee, the only nexus between the contractor and the materialman was the contractor’s acknowledgment or recognition of the subcontractor’s assignment of proceeds to the materialman. This mere knowledge of an assignment was without significance to create an implied contractual relationship of any kind between contractor and creditor; but moreover, in that case, the contractor did not even know the subcontractor’s debt was unpaid. Id., p. 915. There was nothing at all to give the contractor notice of a claim, and no relationship that might have advised him. The holding in Van de Riet is a holding that there was no contract of any kind which would dispense with notice. That case was therefore poor authority for the decision in United States v. Hesselden Constr. Co., supra, also cited by the appellee surety, where the facts were somewhat different and strongly suggested not only an implied contractual relationship but that the contractor knew of the unpaid debt. Worse, this federal court case showed the misapprehension that the statute required a showing of a direct contractual relationship between contractor and materialman to dispense with notice. Id. p. 777. Therefore, its ultimate conclusion that notice was required because “the trial court was correct in determining that no direct contractual relationship exists,” is suspect. (Emphasis supplied.)

In United States v. Md. Cas. Co., supra, there were circumstances clearly showing a direct agreement of the contractor to pay the subcontractor’s debt, but that there might be such a sufficient relationship in a case is no cause to assume that a direct agreement to assume the subcontractor’s debt is necessary in every case to dispense with notice.

In a recent federal case, the court went so far as to hold that a claimant does not even come under the Miller Act in the first place unless he has a direct contract with the contractor in which the contractor assumes the subcontractor’s debt. United States &c. Metal Mfg. v. Fed. Ins. Co., 656 FSupp. 1194 (1987). If this were so, and if that characterization of the provision were correct, then in providing that claimants with “no [direct] contractual relationship, with the contractor express or implied” must give notice, Congress did a vain thing, since obviously such persons could not claim under the bond in any event.

The federal court decided that case without following the words of the statute, but by springing forth from a “general proposition established by the cases . . . that a direct contractual relationship requires that the contractor actually assume responsibility to pay for the materials provided by the materialman.” Id. p. 1197. But there is no such “general proposition established by the cases”; all of those cases referred to either misread the word “direct” into the statute or simply hold that in the facts in the particular case, the circumstances do not amount to a sufficient contractual relationship, whatever that is.

We therefore are not persuaded to put much stock in cases which misread the statute or whose facts are very different. Where it was said in Porter-Lite Corp., supra at 438 (2), that “[u]nder [OCGA § 36-82-104] it is required that one . . . who has no direct contractual relationship with the contractor who furnishes the payment bond, shall have a right of action on the bond ‘upon giving written notice to said contractor . . .’” we were in error. (Emphasis supplied.) Since one judge (Judge Deen of this division) concurred in Porter-Lite Corp. in judgment only and not in all that was said in the opinion, it is physical precedent only and not binding precedent (Court of Appeals Rule 35 (b)). See OCGA § 15-3-1 (d). The statute does not require a “direct contractual relationship” between contractor and materialman to dispense with notice, and it does not prescribe or indicate what kind of “contractual relation express or implied” will dispense with notice. The statute presumes, as its reason for existence, that the direct relationship is with the subcontractor, and the contractual relationship with the contractor is more remote. A liberal construction, in favor of the remedy given by this remedial statute, requires only that the relation be such as gives the contractor the protection the notice requirement would serve. Therefore, a “contractual relationship, express or implied” is sufficient to obviate notice if it “operate [s] to increase the probability of notice to the [contractor] of the [subcontractor’s] obligation to the [materialman],” or give the contractor a “means of knowing” the particular liability of the subcontractor to the materialman. United States v. Praught, supra, p. 238.

If what appellant’s officer states is true in this case, the appellant’s entire participation in the 1-675 project, including its supplying the subcontractor, was done at the behest of the contractor. At the contractor’s request, appellant supplied the contractor and agreed with the contractor to supply the subcontractor at the same rate. When the subcontractor was about to default, the contractor’s president stated to the materialman’s officer that he had already notified his company’s bonding company of the subcontractor’s debt, thus assuring Huddleston the contractor knew of the claim. After the subcontractor’s default, the contractor informed appellant of the agreement whereby subcontractor had assigned all retainage to six creditors, and had. assured appellant it would be paid out of the retainage. This additional fact ensures that the contractor had full knowledge of the claim. After the subcontractor defaulted, the contractor also assumed the subcontractor’s portion of the project, and appellant continued to supply material to the project.

If all this is true, the circumstances may amount to a course of dealings that raise the status of an implied-by-law “contractual relationship” between contractor and Huddleston. Even if we were to view the language to require an implied-in-fact contract or agreement, it is clear the contractor and Huddleston had one of their own, which in the factual circumstances operated to give the contractor the full knowledge of Huddleston’s claim against the subcontractor, which knowledge is the object of the notice requirement, and to impose upon the legal obligation of the surety to pay, which is the object of the act.

In view of this ruling, it is unnecessary to determine Huddleston’s contention that a direct contractual relationship with the contractor arises from Huddleston’s position as a third-party beneficiary of the assignment of retainage executed by the subcontractor to the contractor.

2. The appellee repeatedly adjures us to notice that the contractor has paid for all deliveries to itself and the only debt at issue here is that of the subcontractor. But the contractor’s own dealings with the materialman are what establish that they had an implied contractual relationship, and in this case, assuming Huddleston’s version of events to be the truth, this relationship was sufficient in the factual circumstances to give the contractor notice of the claim against the subcontractor.

3. The appellee also argues that the assignment of retainage by the subcontractor to the contractor is not sufficient to show an implied (direct) contractual relationship. No doubt this is true, but the “relationship” is not grounded upon that assignment. It is grounded on the entire relationship between Huddleston and the contractor, including the contractor’s having asked Huddleston to supply the project both before and after it supplied the subcontractor and the discussions about the debt between Huddleston and the contractor’s principal, and Williams’ assurance that Huddleston would be paid out of the retainage, even though there apparently was not enough of it to go around.

4. While the course of dealings between the parties may prove an implied contractual relationship that, while falling short of an actual express or implied agreement, is yet sufficient to have clearly put the contractor on notice of this claim, we cannot hold there was such a relationship as a matter of law and beyond any material issue of fact, because questions remain as to whose version of events is correct. Therefore, the trial court did not err in denying summary judgment to the appellant on the issue of the notice requirement.

5. The affidavit of Raven, stating what Mr. Williams told him with regard to his (Williams) being aware of the debt owed by the subcontractor, is not hearsay, but is direct evidence of the fact in issue: his own notice of the claim. The question is not whether Williams was telling the truth when he stated to Raven that he had already notified the bonding company, for this is not the fact in issue. If the jury determines that Raven is telling the truth — that Williams made these statements, then necessarily Williams had notice of the claim. Momon v. State, 249 Ga. 865 (294 SE2d 482). See Harrell v. State, 241 Ga. 181 (243 SE2d 890).

Decided February 24, 1988

Rehearing denied March 24, 1988

John A. Howard, Mary M. Brockington, for appellant.

John V. Burch, J. Greg Tharp, for appellee.

Judgment reversed.

Deen, P. J., and Pope, J., concur.


author: Benham, Judge.

text:
    75303.
    REED v. THE STATE.
    (367 SE2d 809)
   Benham, Judge.

Appellant was convicted of trafficking in cocaine (OCGA § 16-13-31 (a)), and his sole enumeration on appeal is the denial of his motion for a directed verdict of acquittal at the close of all the evidence. He argues that the evidence was insufficient to show that he was knowingly in actual possession of the cocaine found in the car he was driving at the time of his arrest. We disagree and affirm.

The evidence produced at trial showed that on October 29, 1985, a Georgia State trooper who was operating a stationary radar unit on 1-285 clocked appellant driving a 1977 Camaro at 91 miles per hour. Using his blue lights and siren, the trooper pulled appellant’s vehicle over to the side of the road. He noticed appellant, the driver and sole occupant of the car, making “a leaning motion, a forward motion, which indicates that he is either reaching under his seat [or] he is coming out from under his seat with something. . . .” Appellant was asked to step out of the car, whereupon the trooper searched the area around the driver’s seat and found a “fairly big bag” containing individual plastic bags of what was later determined to be approximately 77 grams of a white powder, 53 grams of which was pure cocaine. At the time of his arrest and at trial, appellant denied ownership and knowledge of the cocaine, and also denied ownership of the car. In fact, the car did not belong to appellant, but had been loaned to him. Appellant contends that since the officer could not testify that he saw appellant with the cocaine on his person, and since the automobile was not his, he could not be considered to have been knowingly in actual possession of the contraband. “This argument is without merit, for we have held that a person who knowingly has direct physical control over a thing at a given time is in actual possession of it. [Cit.] . . . Although [appellant] testified [he] knew nothing about the [cocaine], [his] credibility was a question for the jury. [Cit.] . . . [Moreover], we do not believe the legislature intended the phrase ‘actual possession’ ... to mean that a person would be holding it in his hand or have it physically on his person” (Evans v. State, 167 Ga. App. 396 (1) (306 SE2d 691) (1983), overruled on other grounds, Teague v. State, 252 Ga. 534 (314 SE2d 910) (1984)), because to do so would be a physical impossibility under the drug trafficking statute provisions that allow for possession of hundreds and thousands of pounds of contraband. Id. The evidence was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crime charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Evans v. State, supra.

Decided January 13, 1988

Rehearing denied March 25, 1988.

Victoria D. Little, for appellant.

Thomas J. Charron, District Attorney, Stephen C. Steele, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

On Motion for Rehearing.

On motion for rehearing, appellant argues that his case is not unlike a series of cases exemplified by Dawson v. State, 183 Ga. App. 94 (357 SE2d 891) (1987), and that this court erred in not finding that appellant was entitled to a directed verdict of acquittal. Dawson is distinguishable inasmuch as in that case Dawson’s codefendant testified that Dawson did not have any knowledge of the existence of the drugs which this court found he should have been acquitted of possessing. There was no such testimony in Reed’s case. “If a person is driving an automobile or has an automobile in his possession, custody or control, all in that automobile is presumed to be his and in his possession.” Autry v. State, 150 Ga. App. 584 (2) (258 SE2d 268) (1979). Whether or not the evidence was sufficient to rebut the inference arising from the finding of the drugs in the automobile is a question for the jury to decide. Moore v. State, 155 Ga. App. 149, 151 (270 SE2d 339) (1980). Since there was some evidence offered in an attempt to rebut the presumption (appellant’s testimony that the drugs were not his), there was a question of fact for the jury to resolve. Therefore, appellant was not entitled to a grant of his motion for directed verdict of acquittal. The motion for rehearing is denied.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    75161, 75162.
    FORD MOTOR COMPANY et al. v. NOLAND COMPANY; and vice versa.
    (368 SE2d 763)
   McMurray, Presiding Judge.

Plaintiff Noland Company filed this action to foreclose a materialman’s lien on the property of defendant Ford Motor Company. The lien in question arose from a contract between defendant Ford Motor Company and Barge/Arconic, a Joint Venture (“Barge”) for the construction of certain improvements at an automobile assembly plant. Barge entered into a sub-contract for the furnishing of labor and materials with Huffman-Wolfe Company. Huffman-Wolfe Company issued a purchase order to plaintiff who delivered, pursuant thereto, goods and materials which have not been paid for, of an alleged value of $13,181.16.

Plaintiff’s claim became due on June 14, 1984. Huffman-Wolfe Company filed a voluntary bankruptcy petition on August 6, 1984, therefore, under the provisions of OCGA § 44-14-361.1 (a) (4), plaintiff was relieved of the necessity of filing an action or obtaining judgment against the sub-contractor to whom the materials were furnished. On September 13,1984, plaintiff filed its lien in the amount of $11,832.47 against the property of defendant Ford Motor Company.

Plaintiff filed the instant action on June 3, 1985, in the State Court of Fulton County and on August 8, 1985, filed a notice of the pendency of this action with the Clerk of the Superior Court of Fulton County.

Plaintiff Noland Company and defendant Ford Motor Company filed motions for summary judgment. The state court denied defendant’s motion for summary judgment and partially granted the plaintiffs motion for summary judgment, awarding plaintiff $11,832.27, the amount stated in its claim of lien. The state court’s judgment added Barge and St. Paul Fire and Marine Insurance Company, as defendants, because a bond to dissolve the lien had been filed with the Clerk of the Superior Court of Fulton County on January 6, 1986, with these parties as principal and surety thereon.

Defendants appealed (Case No. 75161) and plaintiff cross-appealed (Case No. 75162) from the state court’s order partially granting plaintiff’s motion for summary judgment and denying the motion for summary judgment of defendant Ford Motor Company. In Case No. 75161 defendants contend that the state court erred in partially granting plaintiff’s motion for summary judgment and denying defendant Ford Motor Company’s motion for summary judgment because plaintiff failed to comply with OCGA § 44-14-361.1 (a) in that the statute requires that notice of an action to perfect and foreclose a lien must be filed within a reasonable period of time. In Case No. 75162 plaintiff contends the state court erred in limiting its recovery to the amount set forth in the claim of lien. Held:

OCGA § 44-14-361.1 (a) provides in part that: “To make good the liens specified in paragraphs (1) through (8) of subsection (a) of Code Section 44-14-361, they must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective or enforceable: ... (3) The commencement of an action for the recovery of the amount of his claim within 12 months from the time the same shall become due. In addition, at the time of filing such action, the party claiming the lien shall file a notice with the clerk of the superior court of the county wherein the subject lien was filed . . .” (Emphasis supplied.)

In American Hosp. &c. Corp. v. Starline Mfg. Corp., 171 Ga. App. 790 (320 SE2d 857), we construed OCGA § 44-14-361.1 (a) (3) (at that time OCGA § 44-14-362) as requiring that the notice of a pending action to foreclose a mechanic’s or materialman’s lien must be filed within a reasonable time. Based in part on this decision, the state court concluded that in the case sub judice the notice was filed within a reasonable time.

In reaching its conclusion as to reasonableness, the state court also considered the nature of the property and whether it was offered for sale. Thus, the state court’s decision is based in part on the fact that the property at issue was an automobile assembly plant which the state court viewed as being less likely to be sold.

We reject the state court’s supposition that the determination of reasonableness be predicated on the nature of the property involved. Instead, the determination of a reasonable time for filing the notice required under OCGA § 44-14-361.1 (a) (3) should be based primarily upon the nature of that task. Therefore, the determination of a reasonable time for filing the notice should be predicated on the process of acquiring the information which must be included in the notice, preparation of the notice, and transporting the notice to the clerk of the superior court in which the property is located.

In American Hosp. &c. Corp. v. Starline Mfg. Corp., 171 Ga. App. 790, supra, we approved of a period of 16 days. In the case sub judice, 66 days elapsed from the time of filing of this action until notice thereof was filed. In view of the simple nature of the task involved and the public interest in “[providing] potential purchasers of the property such constructive notice as would enable them to determine whether the claim of lien, which would exist for only 12 months absent the filing of a suit to collect the underlying indebtedness within that period, was or was not still extant,” (Amafra Enterprises v. All-Steel Bldgs., 169 Ga. App. 388, 389 (1) (313 SE2d 110)) we hold as a matter of law that the notice of the instant action was not filed within a reasonable time.

In reaching our holding, we reject plaintiff’s contention that OCGA § 44-14-361.1 (a) (3) is not applicable to actions, such as the case sub judice, to enforce the lien directly against the property in an action against the owner thereof pursuant to OCGA § 44-14-361.1 (a) (4). None of the cases cited by plaintiff supports its position and all of the provisions of OCGA § 44-14-361.1 (a) are explicitly applicable to the liens specified in paragraphs (1) through (8) of subsection (a) of OCGA § 44-14-361.

In conclusion, we hold that the state court erred in denying the motion for summary judgment of defendant Ford Motor Company and in partially granting plaintiff’s motion for summary judgment. The issues raised in the cross-appeal are moot due to our decision on the main appeal.

Judgment reversed in Case No. 75161. Case No. 75162 dismissed.

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

Beasley, Judge,

concurring specially.

I concur in the judgment because when the lienor sued, it did not file the statutory notice “at the time of filing such action,” as expressly and clearly required by OCGA § 44-14-361.1 (a) (3). I would agree with the dissent in American Hosp. &c. Corp. v. Starline Mfg. Corp., 171 Ga. App. 790 (320 SE2d 857) (1984).

The legislature obviously did not mean the notice had to be filed at the same instant as the claim was filed, since the lienor would have to first ascertain the number given to the action by the clerk, as well as the date of filing if it was mailed rather than hand-delivered. All other information would be or could be determined in advance. Thus the only elasticity which might be imported into the legislature’s mandate would be mailing time, such as the legislature has provided for with respect to action to be taken after service. OCGA § 9-11-6 (a) and (e). The legislature recognizes in that section of the Civil Practice Act that legal filings are often accomplished by mail, so it accommodates this common practice by allowing a three-day period to be added to specifically prescribed periods.

This case illustrates the wisdom of the legislature in setting a clear and easily calculable, objective requirement, rather than providing for a subjective “reasonable time” standard which would invite litigation. The court’s import of “a reasonable time” into the statute carries with it the allowance and need for the trial court to exercise its discretion, considering all the circumstances of a particular case. This renders the statutory lien law uncertain, subject to varying applications and, as here, differences in judicial opinion: the trial judge reasoned that two months was not unreasonable under the circumstances, and this court disagrees “as a matter of law.”

Decided March 17, 1988

Rehearing denied March 28, 1988

S. Gregory Joy, George A. Smith, for appellants.

John Tye Ferguson, for appellee.

The purpose of the materialman’s lien law is to assure prompt payment to furnishers of labor and material which improves real property. Gignilliat v. West Lumber Co., 80 Ga. App. 652, 653 (1) (56 SE2d 841) (1949). It is not meant to tie up real property, however. We contribute to the latter when we create a litigable issue of procedural compliance in every instance where the notice of commencement of the action to enforce the lien is not filed “at the time of filing such action,” promptly, without delay, posthaste.

Here the lien was filed in September 1984. It has taken three and-a-half years to achieve finality as to whether a straightforward, common materialman’s lien is enforceable, and but for the bond which was bought to free the real property from the lien, it would have been subject to this encumbrance through this long period. Over a year has passed since the defense of the notice delay was pressed by Ford’s filing of affirmative defenses, and significant amounts of judicial resources have been brought to bear on the question. This surely was not the intention of the legislature, when our constitution sets a requirement “for the speedy, efficient, and inexpensive resolution of disputes . . .” Ga. Const. 1983, Art. VI, Sec. IX, Par. I.


author: Carley, Judge.

text:
    75228.
    BOWMAN et al. v. THE STATE.
    (368 SE2d 143)
   Carley, Judge.

Appellants Madia Bowman and Michael Hirsh were jointly tried before a jury on accusations which charged that they “did, knowingly and without authority, remain upon the premises of Feminist Women’s Health Center [FWHC], . . . after receiving notice from ... a properly identified and authorized representative of said owner of said premises to depart from said premises. . . .” See OCGA § 16-7-21 (b) (3). The jury returned guilty verdicts. Appellants appeal from the judgments of conviction and the sentences which were entered by the trial court on the jury’s verdicts.

1. Appellants enumerate the general grounds. In support of this enumeration, appellants urge only that there was a lack of sufficient evidence that they were “knowingly” on the premises of FWHC so as to authorize a finding that they had violated OCGA § 16-7-21 (b) (3).

Appellants contend that the evidence is undisputed that they acted in the good faith belief that they were on public rather than on private property. Thus, appellants assert that they did not have the requisite guilty “knowledge” that the premises from which they had been asked to depart were actually those of FWHC. “A person commits the offense of criminal trespass when he knowingly and without authority: . . . Remains upon the land or premises of another person . . . after receiving notice from the owner, rightful occupant, or upon proper identification, an authorized representative of the owner or rightful occupant to depart.” OCGA § 16-7-21 (b) (3). To prove that appellants had violated this statute, the State would not be required to prove that appellants had actual “knowledge” that they were on the premises of FWHC. All that the State was required to prove is that appellants had actually been physically present on the premises of FWHC and that, after having received proper notice to depart therefrom, they then “knowingly and without authority” remained thereon. That appellants may have acted in the good faith but erroneous belief that they were defying a request to leave premises in which FWHC had no property rights might, if believed by the trial court, possibly constitute a factor in mitigation of their punishment. However, undisputed evidence merely that appellants, notwithstanding their being asked to depart premises which were claimed by FWHC, nevertheless thought that they were on public property does not demonstrate the absence of an essential element in the State’s case. If it were otherwise, there could never be a successful conviction for violating OCGA § 16-7-21 (b) (3) where the defendant simply claims that he did not actually “know” that the property rights were in the individual who had asked that he depart therefrom, insofar as he had a good faith but erroneous belief that the . property really belonged to the public. Appellants “knew” that FWHC claimed the property and had asked that they depart. Rather than to accede to those requests, appellants elected instead to act upon their own belief that the property was not such that FWHC had the legal authority to ask them to depart therefrom. Having made the election to act upon their own beliefs rather than upon FWHC’s requests, appellants must abide by the consequences. If the State could not prove that the requisite property rights were in FWHC, then appellants could not be found guilty of violating OCGA § 16-7-21 (b) (3) by virtue of their remaining on the property after FWHC had asked them to leave. If, however, the State could prove that the requisite property rights were in FWHC rather than in the public, then appellants would not be entitled to avoid criminal responsibility for violating OCGA § 16-7-21 (b) (3), simply because they had thought otherwise. This is true even if appellants acted in a good faith reliance upon the advice of others. See Davis v. State, 151 Ga. App. 736 (261 SE2d 468) (1979).

It follows that appellants’ actual “knowledge” of the viability of FWHC’s property rights is not an essential element of the State’s proof of their violation of OCGA § 16-7-21 (b) (3). Appellants knew that FWHC had claimed property rights in the premises, but they simply thought that FWHC’s claim was erroneous. No contention has been made in support of appellants’ enumeration of the general grounds that the State’s evidence failed to prove that, notwithstanding appellants’ original belief, FWHC had a sufficient property interest so as to render appellants’ refusal to depart a violation of the criminal trespass statute. Since appellants do not urge that the State’s evidence failed to authorize a finding that, after having been given proper notice to depart the premises of FWHC, they “knowingly and without authority” remained on those premises, the general grounds are without merit.

2. Appellants enumerate as error the giving of the following charge to the jury: “[E]veryorie is presumed to know the law and ignorance thereof is not an excuse for its violation.”

The contention is that, by the giving of this charge, the trial court unconstitutionally shifted to appellants the burden of proof as to the element of their “knowledge” that they were on the premises of FWHC. However, as discussed in Division 1, whether appellants “knew” they were on the premises of FWHC is not an element of the crime they were charged with violating. Accordingly, the charge could in no way have had the erroneous and harmful effect of shifting to appellants the burden of proof as to an essential element of the crime. Compare Williams v. Kemp, 255 Ga. 380 (338 SE2d 669) (1986).

The charge was a correct instruction as to an applicable legal principle. The charge instructed the jury that appellants were presumed to know that the act of choosing to remain, knowingly and without authority, on the premises of another after having received proper notice to depart therefrom was a violation of the law, and that appellants’ lack of knowledge that the law criminalized such an intentional act would not excuse the commission of that intentional act. “Everyone is presumed to know the law and ignorance thereof is not an excuse for its violation. [Cit.]” Martin v. State, 160 Ga. App. 275, 277 (1) (287 SE2d 244) (1981). “[T]he accused was nevertheless bound to know what the law was. It would never do to hold that one who did an act which the law makes criminal could be excused because he honestly misapprehended the true meaning of a statute. The question in such a case is not one of good faith or of diligence in endeavoring to find out what the law was. It is simply: Did the accused knowingly do the forbidden act?” Fraser v. State, 112 Ga. 13, 18 (5) (37 SE 114) (1900). The issue in this case was simply: Did appellants knowingly and without authority remain on the property of FWHC after they had received proper notice to depart therefrom? If they did, their lack of knowledge that such an intentional act was criminal would be no defense to their criminal liability for its commission. The giving of the charge was not error.

3. Appellants enumerate as error the trial court’s failure to give a requested charge on the defense of mistake of fact. See OCGA § 16-3-5.

Appellants assert only that they were mistaken as to whether the property interest claimed by FWHC in a portion of the premises was sufficient to authorize it to make a valid request that appellants depart therefrom so that appellants may be prosecuted for criminal trespass. However, appellants were not acting under any misapprehension of fact when they refused FWHC’s request that they depart from those premises. The evidence shows that appellants were aware of all the facts regarding the purported public and private property interests in the premises in question and that they were, if anything, merely mistaken as to the legal consequences of those facts. With knowledge of the fact that FWHC had requested that they depart the contested premises, appellants refused to comply, choosing instead to rely upon their own independent assessment of whether FWHC was legally authorized to make and to enforce their request as to those premises. Having considered all of the relevant facts and having then made their own election, appellants’ criminal liability would ultimately depend upon whether their legal assessment of the facts was correct or incorrect. If, under the facts, appellants’ legal assessment was correct and FWHC had no legal right in the property and no legal right to ask them to leave, then the criminal law would not have been violated. If, on the other hand, appellants’ legal assessment was incorrect and FWHC had, under those same facts, the legal right to request that appellants depart, then appellants’ decision to ignore FWHC’s request was, even if made in good faith, in possible violation of OCGA § 16-7-21 (b) (3). See generally Fraser v. State, supra;

“The accused[s] did not make any mistake of fact; but, conceding that [they] acted in good faith, [they may have] judge [d] erroneously with respect to the law. This cannot, of course, excuse [them]. [Cit.]” Fraser v. State, supra at 18 (5). Thus, the evidence shows, “at best, an inexcusable mistake of law, not of fact. [Cit.]” Morgan v. State, 161 Ga. App. 67, 68 (3) (288 SE2d 836) (1982). Since the evidence did not raise the defense of mistake of fact, the trial court did not err in refusing to give a requested charge on that defense.

4. The trial court’s failure to give appellants’ following request to charge is enumerated as error: “No person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt, and to a moral and reasonable certainty.”

Appellants’ refused request clearly states a correct principle of applicable criminal law. See OCGA § 16-1-5. However, the charge, as it was actually given by the trial court, nowhere included an instruction that the State was required to carry the burden of proof beyond a reasonable doubt as to “each element” of the offense of criminal trespass. Nevertheless, “[t]he failure to give a charge in the exact language requested, where the charge given substantially covers the same principles, is not grounds for reversal. [Cit.]” Pittman v. State, 172 Ga. App. 22, 25 (5b) (322 SE2d 71) (1984). There is some question whether the charge, as it was actually given by the trial court, “substantially covers” the general legal principle that the State has the burden of proof as to “each element” of the offense charged. However, whether or not the charge as given “substantially covers” this general principle need not be decided under the circumstances which exist in the present case.

The record shows that appellants did not deny the commission of any acts attributed to them. They denied only that they had the criminal intent necessary for those acts to constitute the commission of the crime of criminal trespass. With specific regard to the “essential element” of appellants’ intent, the trial court did charge: “[I]ntent is an essential element of any crime and must be proved by the State beyond a reasonable doubt.” Thus, notwithstanding the trial court’s failure to give a general charge as to the State’s burden of proof as to “each element” of the crime, the trial court did give a specific charge as to the State’s burden of proof with regard to the element of intent, which element was, under the circumstances of this case, the decisive element in determining appellants’ criminal liability. Under these circumstances, the failure of the trial court to give appellants’ requested charge as the State’s general burden of proof as to “each element” of the offense or to give a charge which “substantially covered” that general principle was, at most, harmless error. It should be noted, however, that the better practice would be for the trial court to give a written request to charge the jury in the exact language of OCGA § 16-1-5. The failure to give such a requested charge on the general principle contained in that statutory provision will, if error, not necessarily be harmless in every case.

5. After the trial court’s charge to the jury, appellant objected to the giving of the following instruction: “[Fjreedom of speech and freedom to peaceably assemble must be exercised within a framework of order and the conduct employed in exercising these freedoms must not constitute a trespass upon property owned or occupied by private persons.” The only objection raised by appellants in the trial court was that the instruction was “subject to the interpretation that public property . . . that [is being occupied by] private persons . . . could become the location of [a] criminal trespass.” On appeal, appellants enumerate the giving of the charge, over their objection, as error.

Contrary to appellants’ assertions in the trial court and on appeal, the charge did not, in effect, instruct the jury that private persons who were occupying public property could enforce the criminal trespass laws as to that public property. The instructions merely informed the jury that the right to exercise the freedoms of speech and of assembly must be tempered by regard for private property. See generally Daniel v. State, 231 Ga. 270 (201 SE2d 393) (1973). This abstractly correct principle of law was certainly applicable in the instant case. See Daniel v. State, supra. “Criminal trespass is ... a location crime and its purpose is to keep the defendant off the property of others.” Williamson v. State, 134 Ga. App. 583 (215 SE2d 518) (1975). The jury was therefore, in effect, correctly instructed that appellants’ acts of expression must nevertheless be performed so as not to constitute a criminal trespass upon property which was being occupied by FWHC. The jury was not erroneously instructed that appellants’ acts, if committed on public property which was merely being occupied by FWHC, would necessarily constitute trespass. The charge did not purport to define the crime of “trespass” for the jury. Rather the instruction simply delineated the parameters of appellants’ constitutional rights.

In arguing this enumeration, appellants also rely upon other instructions which were given by the trial court and which deal with the entirely separate issue of whether the premises over which FWHC purported to exercise dominion were nevertheless public property. However, appellants did not object in the trial court to the charges given as to this separate issue and the record shows that appellants have waived their right to enumerate error on appeal as to those instructions. See generally White v. State, 243 Ga. 250 (253 SE2d 694) (1979). The only instructions which appellants are entitled to assert to be erroneous on appeal are those which have previously been discussed.

6. The trial court’s rulings as to the scope of testimony given by two expert witnesses called by appellants are enumerated as error.

With regard to one of the expert witnesses, appellants made no proffer of what his answer would have been had the State’s objection to the question not been sustained. This prevents appellate review of the exclusion of this witness’ testimony. See generally Stancil v. State, 155 Ga. App. 731, 733 (3) (272 SE2d 511) (1980).

With regard to the other expert witness, the trial court struck legal opinions expressed as to the “ownership” of and property rights in a portion of the premises in question. The trial court’s rulings were not erroneous. See generally Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527, 540 (5) (251 SE2d 800) (1978). Compare Ivy Inn v. MARTA, 175 Ga. App. 580, 583 (4) (334 SE2d 319) (1985), aff'd 255 Ga. 557 (340 SE2d 600) (1986).

Decided March 11, 1988

Rehearing denied March 28, 1988

George M. Weaver, for appellants.

James L. Webb, Solicitor, Christina Craddock, Assistant Solicitor, for appellee.

Judgments affirmed.

Benham, J., concurs. Banke, P. J., concurs in Diuisions 1, 2, 3, 5, 6 and in the judgment.


text:
    75339.
    OUTDOOR ADVERTISING ASSOCIATION OF GEORGIA, INC. et al. v. DEPARTMENT OF TRANSPORTATION.
    (367 SE2d 827)
   Benham, Judge.

Amendments to the rules and regulations governing the grant, renewal, and revocation of permits for outdoor advertising, promulgated by the Georgia Department of Transportation (DOT), went into effect December 24, 1986. Appellants, various entities engaged in the outdoor advertising business in Georgia, and their non-profit organization, filed suit seeking injunctive relief and a declaratory judgment that certain amendments were invalid for procedural and substantive reasons. Following a bench trial, the trial court concluded that the amendments were valid and enforceable. This appeal followed.

1. Appellants contend the trial court abdicated its statutory responsibility to find the facts and state its conclusions of law (OCGA § 9-11-52 (a)) by adopting verbatim the proposed findings of fact and conclusions of law submitted at the request of the trial court by appellee.

“The [trial] court may request counsel (usually for the prevailing party) to prepare the findings and conclusions which, of course, the judge is at liberty to amend or change in any respect deemed proper . . . The purpose of findings of fact is threefold: as an aid in the trial judge’s process of adjudication; for purposes of res judicata and estoppel by judgment; and as an aid to the appellate court on review [Cit.]” Spivey v. Mayson, 124 Ga. App. 775, 776 (186 SE2d 154) (1971). It has been noted that when the trial court adopts verbatim the proposed findings and conclusions of the prevailing party the adequacy of the findings is more apt to be questioned, the losing party may forfeit his undeniable right to be assured that his position has been thoroughly considered, and the independence of the trial court’s thought process may be cast in doubt. Askew v. United States, 680 F2d 1206 (8th Cir. 1982). However, we are unable to condemn the practice where, as here, there is no evidence that the trial court did not give serious consideration to and review the proposed findings and conclusions eventually adopted.

2. Appellants next present a series of enumerations in which they contend the trial court erred in concluding that DOT had met the procedural requirements contained in OCGA § 50-13-4 (a) of the Georgia Administrative Procedure Act (APA) (OCGA § 50-13-1 et seq.).

OCGA § 50-13-4 (a) provides that prior to the adoption, amendment or repeal of any rule, the governmental body advocating the change must give at least 30 days’ notice of its intended action, and mail the notice to persons who have made a written request to be placed on the agency’s mailing list and who have tendered the mailing costs to the agency. The governmental body must also afford a reasonable opportunity to all interested persons to submit, orally or in writing, data, views or arguments. An oral hearing must be granted if requested by an appropriate party. All written and oral submissions concerning the proposed rule must be considered fully by the governmental body which, if requested to do so, must issue a concise statement of the principal reasons for and against the rule’s adoption, taking into account its reason for overruling the reasons urged against the adoption of the rule. OCGA § 50-13-4 (a) (2). If the adoption of the rule will have an economic impact on businesses in Georgia, the governmental body must reduce the economic impact of the rule on small, independently owned and operated businesses. OCGA § 50-13-4 (a) (3).

Appellants take issue with the trial court’s conclusion that they do not have standing to question appellee’s compliance with OCGA § 50-13-4 (a) (1) because none of them had submitted a written request to be placed upon the agency’s mailing list and had tendered the appropriate mailing costs to the agency. While appellants’ failure to comply with the written request requirement of OCGA § 50-13-4 (a) (1) prevents them from complaining of their lack of receipt of written notice of intended action from appellee, it does not prevent appellants from questioning whether appellee complied with the statute. Failure to comply with OCGA § 50-13-4 (a) (1) invalidates the amended rule. OCGA § 50-13-4 (d). Anyone adversely affected or potentially adversely affected by a new rule may attack the validity of the rule. OCGA § 50-13-10 (a). It follows that the trial court erred in concluding that appellants did not have standing to challenge appellee’s compliance with the requirements of OCGA § 50-13-4.

3. Appellants contend appellee did not give the 30 days’ notice of its intended action required by OCGA § 50-13-4 (a) (1) before adopting the amended rules and regulations. They also argue that the agency charged with promulgating rules and regulations regarding outdoor advertising failed to “consider fully all written and oral submissions respecting the proposed rule[s].” OCGA § 50-13-4 (a) (2).

The affidavit of appellee’s right-of-way engineer, coupled with the minutes of the meetings of the State Transportation Board, gives the procedural history of the contested amendments. At its August 1986 meeting, the State Transportation Board, a constitutionally-created body (1983 Const., Art. IV, Sec. IV, Par. I) statutorily charged with “the general control and supervision of the [DOT]” (OCGA § 32-2-21), determined that the rules and regulations controlling outdoor advertising were in need of revision and directed its staff to proceed with the adoption of the proposed amendments in accordance with the APA. In early September 1986, appellee published notices of a public hearing regarding revision of the rules concerning outdoor advertising in ten newspapers throughout the state. The hearing, at which public comment was sought, was held on September 19, 1986. The proposed amendments were modified somewhat and presented to the State Transportation Board at its meeting on October 16, 1986. The board determined that the revisions were in the best interest of the public and caused no adverse economic impact, and directed its staff to proceed with the adoption of the new rules according to the APA. On October 22-24, 1986, the notice of intended action was mailed to those on the mailing list (see OCGA § 50-13-4 (a) (1)) as well as to every person present and entity represented at the September 19 public hearing. A public hearing was held on November 25. On December 4, 1986, appellee filed copies of the amendments with the Secretary of State. See OCGA § 50-13-6 (a). The copies were accompanied by the certification of appellee’s commissioner that the attached rules were true and correct copies of the DOT rules “as promulgated and adopted on the 4th day of December, 1986.”

It is appellants’ position that the board adopted the proposed amendments at its October 16 meeting, before the notice of intended action was mailed, thereby violating the requirement of OCGA § 50-13-4 (a) (1) that 30 days’ notice of intended action be given prior to the adoption of amendments. Appellants point out that in their depositions appellee’s commissioner and the right-of-way engineer (whose office is responsible for the administration of the Outdoor Advertising Act) acknowledged that no report was made to the board after the November 25 hearing; that the matter was not brought to the attention of the board after November 25; and that the board took no further action on the issue. Appellants conclude from the lack of board action following the November 25 hearing that the board actually adopted the amendments during its October 16 meeting, the last time the issue was acted upon by the board, and that the board failed to precede its adoption of the amendments by giving the requisite 30 days’ notice of its intended action. Appellants maintain that the deposition testimony also provides evidence that the board did not consider the written and oral submissions made with regard to the proposed rules at the November 25 public hearing, a violation of OCGA § 50-13-4 (a) (2).

Appellants’ position is premised on the notion that the State Transportation Board is the entity authorized by law to make rules and regulations for appellee. See OCGA § 50-13-2 (1). However, it is “the department” that is statutorily authorized to promulgate rules and regulations governing the issuance and revocation of permits for the erection and maintenance of outdoor advertising. OCGA § 32-6-90. Since “the department” is the agency authorized to make rules and regulations, and since the right-of-way engineer executed an affidavit in which he swore “the Department” fully considered the public comment resulting from the November 25 public hearing, appellee concludes that OCGA § 50-13-4 (a) (2) was not violated and that it was not necessary for the board itself to consider the November 25 public comment. Acknowledging that the only document evidencing the adoption of the amendments on December 4 is the commissioner’s certification of such, appellee then argues that since the commissioner is empowered with the board’s authority when it is not in regular or called session (OCGA § 32-2-41 (a)), the commissioner had the authority to adopt the amendments. By this argument, appellee implies the board is the entity within the department empowered to make rules and regulations for the department.

The board is “charged with the general control and supervision of the department. In the exercise of such general control and supervision, the board shall have such duties, powers, and authority as are expressly vested in it by this title, including but not limited to . . . (4) Approval of all long-range plans and programs of the department.” OCGA § 32-2-21. While there is no statutory definition of what is encompassed by the phrase “long-range plans and programs,” we are not as willing as appellee to conclude that it does not cover the adoption, amendment, or repeal of the department’s rules and regulations. It cannot be doubted that the subject matter of the proposed rules, the control of outdoor advertising, is a long-term program of the State of Georgia (see OCGA § 32-6-709) that has been placed in the hands of appellee. See OCGA § 32-6-90. The submission of the proposed rule changes to the board at its August and October meetings and the board’s rendition of resolutions directing its staff to proceed is evidence that the department itself recognized the board as the entity within appellee that passes on the adoption, amendment, or repeal of DOT rules and regulations.

Appellee argues that the commissioner is empowered by OCGA § 32-2-41 (a) to “perform, exercise and possess all duties, powers, and authority of the board” when the board “is not in regular or called session.” However, the statute expressly forbids the commissioner from exercising the board’s power concerning the “[a]pproval of long-range plans and programs of the department.” OCGA § 32-2-41 (a) (4). Since, as we have held, the adoption, amendment, or repeal of départmental rules and regulations concerning outdoor advertising in Georgia is a long-range program, the commissioner was not empowered to adopt the proposed amendments sua sponte.

The above analysis leads us to conclude that if the amendments were adopted by the board, OCGA § 50-13-4 (a) (1) was violated because the board adopted the amendments at its October 16 meeting, prior to the initiation and expiration of the 30-day notice period. If the board adopted the amendments, OCGA § 50-13-4 (a) (2) was also violated because the board did not consider the written and oral comments concerning the proposed amendments submitted at the November 25 public hearing. Appellee suggests that consideration of the comments submitted at the September 19 unofficial public hearing is sufficient. In addition to the fact that different concerns were raised at the September and November hearings and the statute mandates full consideration of all written and oral submissions, is the fact that the September hearing was brought to order by the right-of-way engineer who said “this is not the official hearing to adopt the rules” but “is simply to gain your input and find out how you feel about the department proceeding. . . .” We do not agree with appellee that the board’s consideration at its October meeting of concerns aired at the September hearing can be equated with consideration of the concerns raised in November.

4. Appellants also take issue with the trial court’s findings and conclusions concerning OCGA § 50-13-4 (a) (3). Under that subsection, if the adoption of any rule will have an economic impact on businesses in this state, the rule-making agency is required to reduce the economic impact of the new rule on small, independently owned and operated businesses that are not dominant in their field and employ fewer than 100 employees. The trial court • found that “ [implementation of the amendments . . . will have no adverse economic impact on businesses in the State of Georgia” and concluded that compliance with OCGA § 50-13-4 (a) (3) was not mandated since the board had made the determination that the amendments would not have an adverse economic impact on businesses in Georgia. The trial court also concluded that even if the adoption of the amendments did cause an adverse economic impact on Georgia businesses, “the implementation of the actions set out in OCGA § 50-13-4 (a) (3) would not have been feasible in meeting the stated objectives of the statutes which were the basis of the proposed rule.” Appellants take issue with each finding and conclusion made by the trial court.

The trial court found that no adverse economic impact would result from implementation of the proposed amendments. “ ‘When a non-jury judgment by a trial court is reviewed by an appellate court in Georgia, we will not interfere with the findings of fact by the trial tribunal if there is “any evidence” to support it.’ ” Logan Paving Co. v. Massey-Ferguson &c. Corp., 172 Ga. App. 368, 370 (323 SE2d 259) (1984). The evidence in the record supporting the trial court’s finding is the board’s finding of no adverse impact, and the affidavit of the right-of-way engineer that the economic impact of the amendments on business was considered by the board. The board’s finding is contained in the resolution it passed at its October 16 meeting. The minutes of that meeting reflect no discussion on the issue. Thus, the only support for the trial court’s finding is an unsupported conclusion in a board resolution, and the unsupported conclusory statement in an affidavit that economic impact was considered. The affidavit does not state that no adverse economic impact was found — it only states that economic impact was considered. We are unwilling to hold that summary conclusions implicitly contradicted by the silence of the minutes that reflect what occurred constitute “evidence” to support the trial court’s finding. In light of the remand of this case due to the holding in Division 3, we urge the board and the trial court to amplify any findings concerning economic impact. Should it be found that an adverse economic impact is likely to occur due to adoption of the amendments, we must point out to appellee that the mere fact that most of the affected businesses have less than 100 employees is not a sufficient reason to conclude that compliance with OCGA § 50-13-4 (a) (3) (A-D) is not necessary.

Decided March 9, 1988

Rehearing denied March 28, 1988

David H. Flint, Mark W. Forsling, for appellants.

Michael J. Bowers, Attorney General, Marion O. Gordon, First Assistant Attorney General, Roland F. Matson, Senior Assistant Attorney General, Beverly B. Martin, Assistant Attorney General, for appellee.

5. Inasmuch as we have concluded that appellee violated mandated precepts of the APA in its attempt to adopt amendments to appellee’s rules and regulations, we must reverse the judgment entered by the trial court and hold that the amendments are invalid. OCGA § 50-13-4 (d). Since the amendments are invalid due to procedural defects, we do not reach the merits of appellants’ substantive arguments.

Judgment reversed.

Banke, P. J., concurs. Carley, J., concurs in Divisions 1, 2, 3, and 5, and in judgment.


text:
    75644.
    FADUM et al. v. LIAROS.
    (367 SE2d 843)
   Benham, Judge.

A survey of the chronology of this case is necessary in order to resolve the procedural issues which control it. Appellee filed suit against appellants seeking an accounting of a purported partnership and alleging fraud. Service on the appellants was accomplished on March 4, 1986. On April 4, 1986, one day past the time in which appellants could answer the complaint, the first extension of time in which to answer was filed, giving appellants until May 9 to answer. A second extension was filed on May 13, four days past the expiration of the first extension, giving appellants until May 19 to answer. A third extension was filed on May 27, 1986, purporting to give appellants until May 26 to answer. An answer was also filed on May 27. On July 28, 1986, appellee moved for a default judgment against appellants. The trial court granted that motion on September 22,1986, entering a default judgment against appellants as to liability and reserving the issue of damages for later determination. On October 1, 1986, a Georgia attorney filed an appearance denoting his representation of appellants; until that time, Fadum had signed all the pleading on his own behalf and on behalf of the corporate and partnership defendants. Two days later, on October 3, 1986, appellants filed a motion to open default. On December 1, 1986, appellants filed a demand for a jury trial on the issue of damages, denying appellee’s allegations of damages. The trial court entered an order on the next day denying appellants’ motion to open default. On April 7,1987, the trial court entered an order awarding part of the damages sought by appellee, reserving for future determination the remaining damages issues. That order contained the finality language of OCGA § 9-11-54 (b), and was the order which triggered this appeal.

1. Appellants’ second and third enumerations of error address the intertwined issues of the propriety of the trial court’s entry of default judgment for appellee and its refusal to open the default pursuant to appellants’ motion. The resolution of the first of those issues turns on the timing of the pleadings filed in this case. Appellants take the position that their various filings were timely because appellee agreed to extensions and waived any untimeliness in filing. Our review of the record does not support that position.

“A request for an extension of time governed by the CPA must be made before the expiration of the original period prescribed by the statute (OCGA § 9-11-6 (b)), and ‘by written stipulation of counsel filed in the action. . . Id. A private agreement between counsel extending time to file pleadings is not binding except when in compliance with this code section and it is filed with the court. [Cit.]” Ewing v. Johnston, 175 Ga. App. 760 (10b) (334 SE2d 703) (1985). As may be seen from the recitation above, all of appellants’ requests for extensions were late. Regardless of appellants’ assertions concerning agreements of counsel and pretermitting any question whether the computation of a time period established by stipulation of counsel is governed by OCGA § 1-3-1 (d) (3) so as to extend the period another day if it ends on a holiday, the undeniable showing of the record is that appellants were late filing each extension and the answer. There was no error in entering a default judgment as to liability. Ewing v. Johnston, supra.

2. In support of their motion to open the default, appellants have invoked the equities of the situation, contending that appellee’s counsel did not follow through on agreements to file documents that appellants were obliged to file and that appellee waived the untimeliness of the various filings by agreeing to additional extensions. The waiver argument ignores the fact that the last filings, the third extension and the answer, were late and that appellee did nothing to waive that untimeliness. In fact, the next step taken after the answer was filed was appellee’s request for a default judgment. We agree with the trial court that no waiver was shown by that conduct.

Appellants’ assertions that appellee’s counsel did not timely file documents they entrusted to him for filing are not factually supported by the record. Instead, the record paints a picture of appellants attempting to defend a case in a Georgia court with the assistance of an attorney in another state, preparing documents in that attorney’s office on his stationery and pleading paper, but signing the documents “pro se,” and relying on opposing counsel to pilot them through the shallows of Georgia pleading practice. The. result was a series of late filings, delaying the progress of the case. Although appellants’ Georgia counsel has argued persuasively that appellants’ neglect in this case is excusable, his appearance in this case, after judgment had already been entered against appellants on the issue of liability, came too late. “The discretion of the trial court in opening a default and permitting defendant to plead will not be interfered with by the appellate courts unless manifestly abused, to the injury of the plaintiff. [Cits.] We do not, as [appellants urge], convert this to a right to have default opened unless prejudice to plaintiff is shown. Upon review of the circumstances, we cannot conclude as a matter of law the [trial] court’s denial of the request to open the default was a manifest abuse of discretion. [Cit.]” Barone v. McRae & Holloway, P.C., 179 Ga. App. 812 (2) (348 SE2d 320) (1986).

3. Appellants contend that they are entitled to a jury trial on the issue of damages because they filed a pleading pursuant to OCGA § 9-11-55 (a) putting the damages in issue. That Code section provides as follows on the question of damages: “If the case is still in default after the expiration of the period of 15 days, the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages, in which event the plaintiff shall be required to introduce evidence and establish the amount of damages before the court without a jury, with the right of the defendant to introduce evidence as to damages and the right of either to move for a new trial in respect of such damages; provided, however, in the event a defendant, though in default, has placed damages in issue by filing a pleading raising such issue, either party shall be entitled, upon demand, to a jury trial of the issue as to damages.” We do not accept appellants’ argument that the last quoted proviso applies in every default case, no matter what the character of the damages sought. It is clear to us that the legislature intended that proviso to apply in those cases where the damages would have to be established by evidence. Otherwise, that proviso would conflict with the statement in the same sentence that a plaintiff, in a case not involving unliquidated damages and not ex delicto, is entitled to judgment as if every item and paragraph of the complaint were established by evidence. We hold, therefore, that the right of a defendant in default to force a jury trial on the issue of damages is limited to those instances in which the action is ex delicto or the damages sought are unliquidated.

Decided March 14, 1988

Rehearing denied March 28, 1988

In his complaint, appellee alleged that he had given appellant Fadum $25,000 as his contribution to a partnership to be formed by the two. He also alleged that the parties agreed that the money would be returned if the partnership was not formed, and that Fadum subsequently refused to enter into any partnership agreement, but also refused to return the money as he had agreed to do. The damages awarded to appellee by the trial court included a judgment for $25,000. It may be seen from the complaint, the allegations of which must be taken as true because of appellants’ default, that the sum of $25,000 was pleaded as liquidated damages. That being so, appellee was entitled to the monetary damages awarded by the trial court without being required to establish them to a jury.

Judgment affirmed.

Banke, P. J., and Parley, J., concur.

Jere F. Wood, for appellants.

J. Arthur Lee, Jr., Guy E. Davis, Jr., for appellee.