author: Barnes, Judge.

text:
    A99A1851.
    SOUTHERN PRESTIGE HOMES, INC. et al. v. MOSCOSO.
    (532 SE2d 122)
   Barnes, Judge.

Southern Prestige Homes, Inc. and its president Dian Wolfe (collectively “Prestige”) appeal from the trial court’s grant of partial summary judgment to Alexis Moscoso. Prestige contends the trial court erred by granting summary judgment to Moscoso on his claim for breach of contract, by denying Prestige’s motion for partial summary judgment on Moscoso’s claims of conversion, punitive damages, and attorney fees, and by denying Wolfe’s motion for summary judgment on Moscoso’s claims against her individually. For the reasons that follow, we reverse the grant of summary judgment to Moscoso.

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, “the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” (Citation and punctuation omitted.) Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). “When reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence.” (Citation and punctuation omitted.) Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997). Contract disputes are particularly well suited for adjudication by summary judgment because construction of contracts is ordinarily a matter of law for the court. Burns v. Reves, 217 Ga. App. 316, 318 (1) (457 SE2d 178) (1995).

2. In our review of the trial court’s grant of summary judgment to Moscoso, we must construe the evidence and all inferences and conclusions therefrom most favorably toward Prestige, the nonmoving party, and give Prestige the benefit of all reasonable doubts. Viewed in that manner, the evidence shows that pursuant to a reservation agreement, dated March 17, 1996, Moscoso placed a $25,000 deposit to reserve a home constructed on a certain lot in a subdivision. (The year on the reservation agreement was pre-printed; apparently the correct year was 1997.)

Under the terms of the agreement, if a purchase and sale agreement was not executed by March 21, 1997, the reservation agreement would terminate and the deposit would be returned. Even though no purchase and sale agreement was executed by the date specified, the parties signed a purchase and sale agreement on April 8, 1997. The purchase and sale agreement was a pre-printed form contract in which Prestige agreed to complete and sell a home to Moscoso for. $589,500, and Moscoso agreed to buy the home from Prestige for that price with a closing date of June 1, 1997. The contract also contained several special stipulations about the completion of the house and allowances for wallpaper, carpets, lighting, landscaping, and ceramic tile, which Moscoso was to select.

The purchase and sale agreement also contained three separate provisions concerning the earnest money, including Exhibit A to the agreement. Paragraph 2. A. states:

$25,000 in Earnest Money paid upon delivery of this Agreement. The Earnest Money shall be paid to and held by Seller until Closing, at which time it will be credited to Purchaser, or until this Agreement is otherwise terminated and the Earnest Money is dispersed in accordance with Paragraph 6 below. Seller shall be entitled to use the Earnest Money for any purpose whatsoever without obligation to segregate same and to retain any interest earned thereon.

Paragraph 6 provides:

In the event Purchaser breaches this Agreement, the Earnest Money shall be retained by Seller as liquidated damages and Seller’s sole remedy and relief, and this Agreement shall thereafter be of no further force or effect. In the event Seller breaches the Agreement, or in the event of a dispute between the parties regarding obligations of either or both of them hereunder and upon the election of Seller to terminate the Agreement, the Earnest Money shall be returned to Purchaser together with interest thereon at the rate of three percent (3%) per annum (prorated over the applicable period) as liquidated damages and Purchaser’s sole remedy and relief, and this Agreement shall thereafter be of no further force or effect. The amounts identified above in this Paragraph 6 as liquidated damages are not intended as a penalty and have been agreed upon by Seller and Purchaser after deliberation and discussion, and the same constitutes good faith estimates of the damages of the party which would be entitled thereto pursuant to this Agreement, the respective parties’ actual damages being difficult if not impossible to ascertain.

Exhibit A to the purchase and sale agreement further specifies how the money would be retained and the obligations of the parties.

Ultimately, however, a dispute developed. Moscoso never made the selections from the allowances, and the closing did not occur on the date specified in the purchase and sale agreement. Consequently, Moscoso filed suit against Prestige and Wolfe, both individually and as president of Prestige, for breaching the reservation agreement by not returning the deposit, for conversion of the deposit, attorney fees, and punitive damages. Later, Moscoso filed an amended complaint restating his original complaint and adding a fraud claim.

Prestige answered denying liability and answered the amended complaint. The answer to the amended complaint also included a counterclaim against Moscoso for breach of contract, fraud, punitive dámages, and attorney fees. These allegations were based on Moscoso’s failure to close, his lack of good faith, and his misrepresentations.

Moscoso moved for summary judgment alleging that Prestige refused to return the earnest money after the reservation agreement expired, that there was no meeting of the minds because Prestige failed to agree to plans to accommodate Moscoso’s son’s disability, and because the purchase and sale agreement’s finance contingency clause was unenforceable. Prestige responded to Moscoso’s motion and moved for partial summary judgment on Moscoso’s claims for conversion, punitive damages, and attorney fees and on Moscoso’s claims against Dian Wolfe individually.

Subsequently the trial court ruled:

The Court is of the opinion that the Home Purchase and Sale Agreement dated April 8,1997, between [the parties] is so vague and ambiguous that there was no meeting of the minds by the parties concerned and that there was, in law, no binding contract for purchase and sale between the parties. This being the case, Plaintiff is entitled to the return of the $25,000 paid by Plaintiff to Southern Prestige Homes, Inc., under the Reservation Agreement between the parties. Alternatively, assuming that the Home Purchase and Sale Agreement is a legally binding contract, the Court finds that the same was rescinded by Defendant, Southern Prestige Homes, Inc., by letter of its counsel to counsel for Plaintiff and that Plaintiff is, therefore, entitled to the return of the $25,000 held by defendant, Southern Prestige Homes, Inc., on the theory of rescission.

3. “A contract is an agreement between two or more parties for the doing or not doing of some specific thing.” OCGA § 13-1-1. Further, “construction of a contract is a question of law for the court. Where any matter of a fact is involved, the jury should find the fact.” OCGA § 13-2-1. When construing contracts, the courts should prefer “[t]he construction which will uphold a contract in whole and in every part. . . .” OCGA § 13-2-2 (4). Moreover, “[competent parties are free to choose, insert, and agree to whatever provisions they desire in a contract . . . unless prohibited by statute or public policy. [Cit.]” Simmons v. Select Ins. Co., 183 Ga. App. 128, 129 (1) (358 SE2d 288) (1987).

With these general principles in mind, we have reviewed the contract, and we do not find the unspecified ambiguity the trial court relied upon to find that the contract was nonbinding. The parties’ obligations in this agreement are certain and definite. See Brack v. Brownlee, 246 Ga. 818, 819 (273 SE2d 390) (1980). The agreement’s terms are not vague or indefinite. Compare Patel v. Gingrey Assoc., 196 Ga. App. 203, 206 (2) (395 SE2d 595) (1990); Farmer v. Argenta, 174 Ga. App. 682, 683 (331 SE2d 60) (1985). To be enforceable, an agreement must be expressed plainly and explicitly enough to show what the parties agreed upon, West v. Downer, 218 Ga. 235, 241 (5) (127 SE2d 359) (1962), and no question exists about the parties’ obligations. See Green v. Zaring, 222 Ga. 195, 198 (1) (149 SE2d 115) (1966).

In this case, the agreement is a complete document that obligates Prestige to build a house for Moscoso for a certain price and obligates Moscoso to pay that price for the home. That is a contract. OCGA § 13-1-1. For the same reasons, we do not find too vague or uncertain the agreement’s provision regarding Moscoso’s obligation to secure financing. Paragraph 3 of the purchase and sale agreement, the loan contingency clause, states:

A. This Agreement is subject to Purchaser being able to obtain, after diligent efforts, a first mortgage loan at the then prevailing rates in an amount of not less than $489,000 (a “Qualifying Loan.”) Purchaser must apply for a Qualifying Loan within five (5) business days after the Agreement Date set forth below, and accept same if offered by any lender. If Purchaser fails to so apply within the agreed five (5) business day period or refuses to accept a Qualifying Loan obtained by Seller or Broker (as defined herein) on Purchaser’s behalf, or does any other act to prevent the timely closing of this transaction, then in any such event, Purchaser shall be in default hereunder and Seller shall have the right to exercise its remedies under Paragraph 6 below.

We find that this provision is sufficiently definite to be enforced. The agreement states the amount of the loan and that it was to be a qualifying loan at the prevailing rate. That is sufficient. Walker v. Anderson, 131 Ga. App. 596, 597-598 (206 SE2d 833) (1974); Barto v. Hicks, 124 Ga. App. 472, 474 (2) (184 SE2d 188) (1971).

The contract also contains a “merger clause” that states that the “Agreement contains the entire understanding of the parties and there are no representations, inducements or other provisions other than those specifically expressed or referred to herein.” Therefore, Moscoso’s reliance on alleged oral agreements between the parties is misplaced. Consulting Constr. Corp. v. Edwards, 207 Ga. App. 296, 298 (1) (427 SE2d 789) (1993) (purchaser who affirmed contract, which contained merger clause and disclaimer provisions and also retained purchased articles, was estopped from asserting that he relied upon seller’s misrepresentations).

Accordingly, we find that the trial court erred by finding that this contract is nonenforceable for vagueness.

4. Further, the unspecified letter relied upon by the trial court as a letter of rescission by Prestige’s counsel appears to be a letter, dated May 20, 1997, to an attorney who previously represented Moscoso. The letter states:

This will confirm our telephone conversation of May 20 regarding the status of the above contract. The parties have agreed to terminate the contract and Southern Prestige may place the house back on the market for sale immediately. I will draft a termination agreement which will provide that Southern Prestige may retain the earnest money paid by your clients of $25,000 provided that the same is deposited at interest. When the house is sold by Southern Prestige a calculation will be performed to determine whether Southern Prestige has lost any money. In addition to any difference in contract sales price the calculation will include any other hard cost such as construction loan interest from June 1 to date of closing, taxes, utilities, etc. Any “lost profit” will be retained by Southern Prestige with a balance to be refunded to Mr. & Mrs. Moscoso.
I understand that you will be out of the city for the balance of the week. I will draft a rescission agreement and fax the same to you for your review next week.
P.S. In view of your most recent telephone message, we need to talk some more about “lost profit” but we are agreed to rescind.

Although the trial court apparently found this letter to be a rescission of the contract, the terms of the entire letter leave little doubt that the trial court misconstrued its effect. Rescission of a contract is a complete abrogation of the contract; it does not leave the parties where the rescission finds them. The parties must be returned as nearly as possible to the status quo ante. Corbitt v. Harris, 182 Ga. App. 81, 82 (354 SE2d 637) (1987). Since the letter refers to rescission, but provides for retention of the deposit to be applied against possible damages, the agreement reached was not a unilateral rescission. Unilateral rescission is permitted “only when both parties can be restored to the condition in which they were before the contract was made.” (Emphasis supplied.) OCGA § 13-4-62.

Under the circumstances, this letter cannot be said, as a matter of law, to be a unilateral rescission. Part of the letter’s terms called for Prestige to hold the earnest money to offset for damages, and the letter plainly indicates that the subject of rescission was under negotiation. Therefore, we find the trial court erred by finding this letter was a rescission of the contract. Moreover, whether the parties intended to mutually depart from the contract so as to create a new agreement is ordinarily a question for the jury. Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 257 (3) (381 SE2d 322) (1989). Therefore, the trial court must also be reversed on this alternative basis for returning the deposit.

5. Because no motion for summary judgment was made on Moscoso’s fraud claim, that claim remains pending against both defendants. Therefore, the trial court did not err by denying Prestige’s motion for summary judgment on Moscoso’s claims for punitive damages and attorney fees since a favorable verdict on a fraud claim can support the award of punitive damages and attorney fees. Kent v. White, 238 Ga. App. 792, 794 (1) (b) (520 SE2d 481) (1999).

Decided March 21, 2000

Reconsideration denied April 11, 2000.

Chestnut & Livingston, Tom Pye, for appellants.

Cornelison & Van Gelderen, Leon A. Van Gelderen, John A. Ziolo, for appellee.

6. For the reasons discussed in Division 5 above, Moscoso’s claims for fraud, punitive damages) and attorney fees remain pending against Wolfe in her individual capacity.

7. Moscoso’s claim for return of his earnest money must rest on either breach of contract or fraud. Because questions of fact remain on the breach of contract claim and no motion for summary judgment was made on the fraud claim, the trial court did not err by denying Prestige’s motion for summary judgment on the conversion claim.

Accordingly, the judgment of the trial court must be reversed and the case remanded to the trial court for further proceedings, including reconsideration of the parties’ motions for summary judgment. Additionally, the trial court is directed to grant summary judgment to Wolfe on Moscoso’s breach of contract claim against her individually.

Judgment reversed with direction.

Blackburn, P. J., and Eldridge, J., concur.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A00A0169.
    JONES v. THE STATE.
    (531 SE2d 755)
   Johnson, Chief Judge.

After a jury trial, Ossawa Emo Jones was convicted of aggravated assault, criminal damage to property, and possession of a firearm during the commission of a crime. He moved for a new trial contending, among other things, that he was denied his right to be tried by a legal and impartial jury because one of the persons who served on the jury in his case, William Patterson, Sr., had not been summoned for jury duty. According to Jones’ brief, a different, younger William Patterson had been summoned, but the elder Patterson reported for duty. Jones claims that the irregularity was discovered after the jury returned its verdict and was dismissed. Without stating its reasons for doing so, the trial court denied Jones’ motion for new trial. On appeal, Jones argues that the trial court erred in denying his motion for new trial when he was tried by an illegally constituted jury.

Decided March 17, 2000

Reconsideration denied April 11, 2000

Jerry M. Daniel, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

As Jones points out in his brief, the guarantee of a fair and impartial jury is a central safeguard to a fair trial in our system of criminal justice. Lamons v. State, 255 Ga. 511, 512 (340 SE2d 183) (1986). There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown. Id. The burden, though, is on the appellant to show by the record an irregularity in the juror’s conduct. McIntyre v. State, 207 Ga. App. 129, 130 (3) (427 SE2d 99) (1993); see Davitt v. State, 232 Ga. App. 427, 428-429 (3) (502 SE2d 300) (1998).

In this case, there is nothing in the record showing that any unauthorized persons served on the jury. Although Jones states in his brief that one of the jurors who served on the jury did not receive a summons, his statement has no support in the record. It is well settled that this court will not consider factual representations made in a brief which are not supported by the record. See Pruitt v. Tyler, 181 Ga. App. 174, 175-176 (1) (351 SE2d 539) (1986). Jones has not met his burden of proving error by the record. See Davitt, supra.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.


text:
    A00A0354.
    MEANS v. MARSHALLS OF MA.
    (532 SE2d 740)
   Barnes, Judge.

This appeal arises from a personal injury suit filed by Allison Daniel Means as a result of injuries she received when she fell in a Marshalls’ dressing room. Means contends on appeal that the trial court erred by granting summary judgment to Marshalls. For reasons that follow, we affirm.

In Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997), our Supreme Court reiterated that:

in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.

Robinson also lightened the evidentiary load placed upon slip-and-fall plaintiffs opposing a motion for summary judgment by requiring a defendant to produce evidence showing negligence on the part of the plaintiff before the plaintiff is required to produce rebuttal evidence on this issue. Id. at 748.

On appeal from the grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998). Viewed in this light, the record shows that on a Sunday afternoon, Means entered a Marshalls’ dressing room with her fiancé’s four-year-old daughter, Megan. An attendant at the entrance to the dressing room monitored the number of clothing items Means took into the dressing room. When Means and Megan entered a dressing room, Means noticed between five and seven pieces of “tags and garment paraphernalia” on the floor of the dressing room. They were not “a huge obstacle,” and Means was not concerned about tripping over them. Megan tried on clothes first and walked out of the dressing room several times to show them to her father. Means accompanied her out of the dressing room one time. She did not tell the attendant about the garment debris in her dressing room. Wdien Megan completed trying on her clothing, Means tried on a pair of shorts and told Megan to sit in the dressing room while she showed her fiancé the shorts. As she exited the dressing room, Means saw Megan begin “to get up” and the dressing room door starting to swing back toward her. WTren she tried to reach for Megan and prevent the door from hitting her, she slipped on the garment debris in the dressing room and fell. Means testified that she did not know whether she crossed over this garment debris in her previous trip out of the dressing room with Megan before her fall.

In this case, Marshalls met its evidentiary burden under Robinson, supra, by pointing to evidence showing Means had actual knowledge of the debris that caused her to slip and fall. Means responds with the argument that, while she may have known that the garment debris was on the floor of the dressing room, she did not subjectively perceive that it might cause her to fall and summary judgment was therefore inappropriate.

1. The cases relied upon by Means to support this argument are distinguishable because in each of these cases, the particular hazard that caused the plaintiff’s injury was either hidden or outside the realm of an ordinary person’s knowledge. In this case, the hazard, garment debris in plain view on a dressing room floor, was one which any person with ordinary, common sense would recognize as something that might cause a person to trip, slip, or fall. The trial court properly granted summary judgment to Marshalls based upon Means’ actual knowledge of the garment debris. See Hall v. J. H. Harvey Co., 242 Ga. App. 315 (529 SE2d 444) (2000); McCoy v. West Bldg. Materials &c., 232 Ga. App. 620, 622 (502 SE2d 559) (1998).

Decided March 28, 2000

Reconsideration denied April 11, 2000

Hendrick & Hunter, Robert J. Hunter, Brian K. Jackson, Drew, Eckl & Farnham, Andrew B. Koplan, for appellant.

Webb, Carlock, Copeland, Semler & Stair, James R. Doyle II, Douglas A. Wilde, for appellee.

2. Means also contends summary judgment should not have been granted because she was distracted by the “emergency situation involving her step-daughter.” We find no merit in this argument because Means had actual knowledge of the garment debris before the alleged distraction occurred. See McCoy, supra, 232 Ga. App. at 622. See also Robinson, supra, 268 Ga. at 744 (1) (a).

3. Our holdings in Divisions 1 and 2 render Means’ remaining enumerations of error moot.

Judgment affirmed.

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

       In Gerdes v. Dziewinski, 182 Ga. App. 764, 766-767 (2) (357 SE2d 110) (1987), the plaintiff did not appreciate the risk of turning her ankle on a small pebble that was obscured by pine straw placed on a sidewalk.
      In Aggeles v. Theater of the Stars, 235 Ga. App. 57, 58 (507 SE2d 856) (1998) (physical precedent only), we held the plaintiff did not have actual knowledge of the hazard posed by a handrail when she had previously ascended the staircase and fell while descending the staircase on the opposite side. Robinson v. Western Intl. Hotels Co., 170 Ga. App. 812 (318 SE2d 235) (1984) also involved a plaintiff who was injured while descending a step he had previously only ascended.
      In Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139, 140 (351 SE2d 477) (1986) (physical precedent only), the plaintiff was injured by a sharp object concealed in the construction debris on which she stepped.
      In Amberly Suite Hotel v. Soto, 214 Ga. App. 72 (446 SE2d 778) (1994), the plaintiff was injured when a waterlogged Sheetrock ceiling collapsed onto him. Before the ceiling’s collapse, the defendant saw only a bulge in the Sheetrock and a hole the size of a dime.
      Finally, in Van Dyke v. EMRO Marketing Co., 211 Ga. App. 744 (440 SE2d 469) (1994), the plaintiff slipped in a mixture of kerosene and water.


text:
    A00A0577.
    YOTHER v. THE STATE.
    (532 SE2d 696)
   Barnes, Judge.

Gregory Alan Yother appeals his conviction of escape, contending that the sentence under which he was confined was unlawful. Therefore, he argues, the trial court erred in denying his motion for directed verdict because the State failed to prove a necessary element of the crime. For the reasons that follow, we affirm the conviction.

Yother pled guilty to misdemeanor stalking and disorderly conduct in August 1996 and was sentenced to two consecutive twelvemonth terms of probation, along with various fines and fees. The trial court revoked his probation on December 10, 1996, for violating the terms and conditions of his probation and, in an order under review here, sentenced him as follows:

Revoke, reinstate under original terms and conditions with special condition to remain in Gilmer Co. Jail under work release until all fines, fees and civil obligations are paid. Civil obligation in amount of $1299.93 will be paid through Ellijay Probation Office. ... If defendant fails to pay all obligations, the defendant will serve a term at the Gaines-ville Diversion Center at the discretion of the probation officer.

On December 26, 1996, Yother signed out of the Gilmer County jail at 5:35 a.m. to go to work. He never returned. Yother was arrested in March 1997 and indicted the next month for escape. A jury convicted him in November 1997, and the trial court denied his motion for new trial in September 1999.

In Chandler v. State, 257 Ga. 775 (364 SE2d 273) (1988), the Supreme Court of Georgia considered whether a probationer participating in an alternative incarceration program who failed to return after being given permission to leave for a time could be prosecuted for escape or merely for probation revocation. The court held that the lesser penalty of revocation applied. Id. at 776.

Subsequently, the legislature amended the escape statute to provide that a person commits the offense of escape when he:

[i]ntentionally fails to return as instructed to lawful custody or lawful confinement or to any residential facility operated by the Georgia Department of Corrections after having been released on the condition that he or she will so return; provided, however, such person shall be allowed a grace period of eight hours from the exact time specified for return if such person can prove he or she did not intentionally fail to return.

Decided March 27, 2000

Reconsideration denied April 11, 2000

Abernathy & Ballinger, Eric A. Ballinger, for appellant.

Roger G. Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellee.

OCGA § 16-10-52 (a) (5).

Yother contends that his confinement was not lawful because the sentence he received when his probation was revoked was void. The sentence was void, he continues, because it purported to place him on probation, but also impermissibly required him to serve a period of confinement as a special condition of probation, which this court specifically found unauthorized in Pitts v. State, 206 Ga. App. 635, 639 (3) (426 SE2d 257) (1992).

However, under the terms of Yother’s probation:

[a]s now crafted, the sentence does not require continuous and uninterrupted incarceration and therefore does not violate the holding of Pitts. In fact the Court in Pitts specifically recognizes that confinement for intermittent periods, such as weekends, or confinement in a facility other than a jail or penitentiary for a continuous period are appropriate conditions of probation. Id.

Johnson v. State, 226 Ga. App. 503, 504 (487 SE2d 90) (1997). See also McKinney v. State, 240 Ga. App. 812, 815 (2) (525 SE2d 395) (1999). Therefore, Yother’s confinement was lawful, and the trial court did not err in denying his motion for a directed verdict.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J, concur.


author: Barnes, Judge

text:
    A00A0645.
    PRUITT v. THE STATE.
    (532 SE2d 741)
   Barnes, Judge

Tony Pruitt appeals from the trial court’s denial of his motion for an out-of-time appeal of his convictions for aggravated child molestation, child molestation, and enticing a child for indecent purposes. For reasons that follow, we affirm.

Pruitt claims he is entitled to an out-of-time appeal because his attorney failed to follow his instructions to pursue an appeal.

“(A)n out-of-time appeal is appropriate where due to the ineffective assistance of counsel, no appeal has been taken.” [Cit.] However, “an attorney renders effective assistance of counsel with regard to the decision whether to appeal when he advises his client of his appellate rights, and does not preempt his client’s decision to appeal. . . . (N)either the [S]ixth [A]mendment nor the [F]ourteenth [A]mendment requires that the record reflect that the defendant made a knowing and intelligent decision not to appeal before he can be precluded from appellate review.” [Cit.] The grant or denial of a motion for an out-of-time appeal is within the discretion of the trial court, and its decision will not be reversed absent abuse of such discretion. [Cit.]

Penrod v. State, 233 Ga. App. 532-533 (504 SE2d 757) (1998).

In the hearing on Pruitt’s motion for an out-of-time appeal, his trial counsel testified that he advised Pruitt about his right to appeal his conviction and sentence and that Pruitt twice instructed him, in person, not to pursue an appeal. In a letter dated October 24, 1996, Pruitt’s trial counsel advised Pruitt that his conviction must be appealed by October 31, 1996, and that his sentence must be appealed by November 9, 1996. This letter also confirmed:

It is my understanding that you do not wish for me to proceed with any appeals on your behalf. If you do want to file an appeal and you cannot afford an attorney, you have the right to petition the court for appointed counsel. If you do want to go in this direction, you must do so immediately.

In his testimony at the hearing, Pruitt admitted that he received this letter on October 29, 1996, and that he did not contact his trial counsel after receiving this letter, even though he claimed that he had twice instructed his counsel to file an appeal. Instead, Pruitt testified that he mailed a letter to his father on October 29, 1996, asking his father to talk with his trial counsel because he wanted to appeal.

Pruitt’s trial counsel testified that he met with Pruitt’s father on October 7, 1996, and that he was again told that Pruitt did not want to pursue an appeal. Pruitt’s father testified that his meeting with his son’s trial counsel took place after he received his son’s October 29, 1996 letter. He further testified that it was his understanding that his son wanted to appeal his conviction.

Over four months later, on March 12,1997, Pruitt sent a letter to the Superior Court Sentence Review Panel of Georgia asking for forms and information about appealing his sentence. He also testified that he wrote to the State Bar of Georgia and the Center for Prisoner’s Legal Assistance about an appeal, but he did not present a copy of these letters in the motion hearing.

Decided March 28, 2000

Reconsideration denied April 11, 2000.

Juwayn N. Haddad, for appellant.

Michael H. Crawford, District Attorney, Earnest J. McCollum, Assistant District Attorney, for appellee.

On July 26, 1999, over two and a half years after his convictions, Pruitt filed a motion to pursue an out-of-time appeal.

This record authorized the trial court to conclude that Pruitt’s failure to exercise his appeal rights in a timely fashion was not due to ineffective assistance of counsel, but instead his own conduct. The trial court did not abuse its discretion in denying Pruitt’s motion for an out-of-time appeal. See Davis v. State, 242 Ga. App. 101 (527 SE2d 602) (2000); Penrod, supra.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

       A photocopy of this letter was submitted in the hearing because the original could not be located. The date of the letter is not located at the top, but in an unusual place, squeezed above Pruitt’s signature and under the last line of the letter.


author: Eldridge, Judge.

text:
    A00A0924.
    CANTERBURY FOREST ASSOCIATION v. COLLINS.
    (532 SE2d 736)
   Eldridge, Judge.

Canterbury Forest Association, a subdivision homeowners’ association in Muscogee County, appeals from the trial court’s entry of summary judgment on its complaint against Randy Collins. The complaint was based upon Collins’ alleged violation of restrictive covenants on his property. The trial court found that such covenants had expired and, therefore, granted Collins’ motion for summary judgment. This Court finds that the trial court erred and reverses the trial court’s order.

The relevant facts, viewed in a light most favorable to the association, as nonmovant, are as follows: On June 15, 1975, Canterbury Forest Association adopted bylaws and various restrictive covenants for the subdivision’s 26 lots. Collins purchased Lot 3 in August 1992; the deed included a provision which conveyed the land “subject to all valid and enforceable restrictive covenants and easements of record.” On March 16, 1995, Collins and 24 of the remaining 25 Canterbury Forest Association members signed an “Amendment to the Property Owners Agreement and Covenants,” wherein they agreed to extend the covenants for an additional 20 years, until June 15, 2015.

In September 1998, Collins constructed a 1,400-square-foot metal building on his property in alleged violation of the covenants. The association demanded that Collins remove the building, and when he refused, it filed suit against him. Following a hearing on Collins’ motion for summary judgment, the trial court determined that the covenants had expired as a matter of law and granted Collins’ motion. The association appeals from this order. Held:

1. In its first enumeration, the association contends that the trial court erred in determining that the covenants had expired 20 years after their adoption, pursuant to OCGA § 44-5-60 (b), and were not automatically renewed under OCGA § 44-5-60 (d) (1). We disagree.

(a) Under OCGA § 44-5-60 (b), “covenants restricting lands to certain uses shall not run for more than 20 years” in counties with zoning laws. Therefore, unless renewed, such covenants expire as a matter of law after 20 years. From 1991 until July 1, 1993, OCGA § 44-5-60 (d) permitted landowners to renew such covenants for an additional 20 years. See Ga. L. 1991, p. 334, § 1. In order to renew the covenants, the statute required that the landowners approve the renewal by a two-thirds vote prior to the expiration dates of the covenants; that an attorney conduct a title search to confirm the record owners; and that several specific documents be prepared and filed in the county records. Id.

The Georgia General Assembly eliminated this renewal provision, however, by amending OCGA § 44-5-60 (d), effective July 1, 1993. Ga. L. 1993, p. 782, § 1. Under the current version of OCGA § 44-5-60 (d),

covenants restricting lands to certain uses affecting planned subdivisions containing no fewer than 15 individual plots shall automatically be renewed beyond the [twenty-year expiration period] unless terminated [by fifty-one percent of the plot owners within two years prior to the expiration of the covenant]. Each such renewal shall be for an additional 20 year period, and there shall be no limit on the number of times such covenants shall be renewed.

(Emphasis supplied.) OCGA § 44-5-60 (d) (1). See also OCGA § 44-5-60 (d) (2).

However, the automatic renewal provision of OCGA § 44-5-60 (d), as amended in 1993, does not apply to the covenants at issue herein, so that the covenants expired in June 1995 after 20 years, pursuant to OCGA § 44-5-60 (b). This finding is based upon the fact that the covenants were adopted in 1975, before the automatic renewal provision was adopted in 1993, and upon the Supreme Court of Georgia’s decision in Appalachee Enterprises v. Walker, 266 Ga. 35, 36 (1) (463 SE2d 896) (1995). In Appalachee, the Court held that the automatic renewal provision of the 1993 amendment to OCGA § 44-5-60 (d) could not be applied retroactively and applied only to covenants adopted after July 1, 1993. Therefore, covenants adopted prior to that date automatically expire after 20 years pursuant to OCGA § 44-5-60 (b).

(b) (i) Further, under the same analysis, since the covenants herein were adopted prior to the 1990/1991 amendments creating renewal procedures, such procedures cannot be retroactively applied to breathe new life into covenants which were slated to expire as a matter of law. Notably, the 1990/1991 amendments had already been replaced by the 1993 automatic renewal provision at the time the association attempted renewal of the covenants in 1995.

(ii) Even if the 1990/1991 renewal procedures could be utilized to save these covenants, the association failed to strictly comply with the specific statutory requirements for such renewal. See Ga. L. 1991, p. 334, § 1. The association admits that it failed to file an attorney’s affidavit and other required paperwork but insists that it substantially complied with the provision. However, the record clearly shows that it did not substantially comply with the statute. Further, substantial compliance is not enough when such covenants serve to restrict a landowner’s lawful use and enjoyment of his land. Since restrictions on private property are generally not favored in Georgia, they:

will not be enlarged or extended by construction, and any doubt will be construed in favor of the grantee. When it is sought to restrict one in the use of his own private property for any lawful purpose, the ground for such interference must be clear and indubitable. The word indubitable in its literal sense means without doubt.

(Citation and punctuation omitted.) England v. Atkinson, 196 Ga. 181, 184 (1) (26 SE 431) (1943).

Accordingly, the trial court did not err in determining that the covenant had expired as a matter of law on June 15, 1995.

2. In its second enumeration, the association contends that the trial court erred in determining that Collins was not bound by the covenants, pursuant to his March 1995 agreement with 24 other property owners. We agree and find that, under the principle of promissory estoppel, Collins and the other 24 landowners were bound to abide by the covenant’s provisions until June 15, 2015.

Decided March 28, 2000

Reconsideration denied April 11, 2000

Miller, Layfield & Lee, Lucius M. Layfield III, Harry O. Lee, Jr., Melissa R. Reynolds, for appellant.

Promissory estoppel is codified in Georgia as OCGA § 13-3-44 (a), which reads as follows: “[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” See Kamat v. Allatoona Fed. Sav. Bank, 231 Ga. App. 259, 263 (3) (498 SE2d 152) (1998); see also Knotts Landing Corp. v. Lathem, 256 Ga. 321, 324 (3) (348 SE2d 651) (1986).

To prevail on a promissory estoppel claim, plaintiffs must show that (1) defendant made certain promises, (2) defendant should have expected that plaintiffs would rely on such promises, (3) the plaintiffs did in fact rely on such promises to their detriment, and (4) injustice can be avoided only by enforcement of the promise. [Cits.]

Kamat v. Allatoona Fed. Sav. Bank, supra at 263 (3).

In this case, the landowners attempted, but failed, to execute a renewal of the existing covenants for 20 additional years. However, the record demonstrates that the landowners continued to conduct themselves in compliance with the covenants and continued to enforce the covenants as to each other for the next three years, unaware that the covenants had expired. The record clearly shows that, because they relied on the agreement to extend the covenants, the landowners took no action to enact new covenants or otherwise protect their property interests. Such forbearance, combined with their continued compliance with and enforcement of the covenants, binds Collins and the other 24 landowners personally to comply with the covenants and prohibits them from violating such covenants until June 15, 2015.

Accordingly, this Court finds that Collins was bound by the covenants at issue at the time of his alleged violation in 1998.

Judgment reversed.

Blackburn, P. J., and Barnes, J., concur.

Bradford C. Dodds, for appellee.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       The promise to comply with the covenants until June 15, 2015, however, applies to the landowners and Collins in their personal capacities and does not run with the land; therefore, it is not binding on subsequent landowners or assignees. See Johnson v. Myers, 226 Ga. 23 (172 SE2d 421) (1970); James Talcott, Inc. v. Roy D. Warren Commercial, 120 Ga. App. 544, 545 (1) (171 SE2d 907) (1969).


author: McMURRAY, Senior Appellate Judge.

text:
    A99A1126.
    SINGLETON v. THE STATE.
    (533 SE2d 457)
    Decided April 11, 2000.
    Rickey Singleton, pro se.

      Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.
   McMURRAY, Senior Appellate Judge.

In Singleton v. State, we affirmed Rickey Singleton’s conviction. The Supreme Court of Georgia thereafter granted certiorari, vacated our judgment, and remanded for reconsideration of our holding in Division 1 in light of Parks v. McClung, Sloan v. Sanders, Wharton v. Anderson, Larry v. Hicks, and Jones v. Wharton, in which the Supreme Court held that waiver of a constitutional right will not be inferred from a silent record. Held:

Upon reconsideration of Division 1 of our prior decisión in light of the above-referenced authorities, we vacate our judgment therein and find that the trial court erred in failing to obtain a knowing and voluntary waiver of appointed counsel from Singleton on the record, effectively denying Singleton his right to trial counsel. Accordingly, we reverse and remand for a new trial, adhering to our holdings in Divisions 2 through 12 of our prior opinion, as we were not directed to reconsider these and the issues there decided may recur upon any retrial of this case.

Judgment reversed.

Johnson, C. J, and Phipps, J., concur.

       240 Ga. App. 240 (522 SE2d 734).

       271 Ga. 795, 798 (507 SE2d 799).

       271 Ga. 299, 300 (519 SE2d 219).

       270 Ga. 22, 23 (1) (504 SE2d 670).

       268 Ga. 487, 488 (491 SE2d 373).

       253 Ga. 82, 83 (316 SE2d 749).

        Singleton v. State, 240 Ga. App. at 240 (1), supra.

       Id. at 240-242 (2)-(12).


text:
    A00A0042.
    BROWN v. THE STATE.
    (533 SE2d 453)
   Barnes, Judge.

Derrick H. Brown was indicted for and convicted of aggravated assault on a person 65 years old or older, robbery by force, kidnapping with bodily injury, and burglary. He makes two arguments on appeal: (1) the trial court erred in failing to grant a motion to suppress evidence that he was identified in a lineup and failing to grant a motion in limine to prevent the victim from identifying him in court; and (2) the trial court erred in allowing a deputy sheriff to testily that an accomplice led to Brown’s arrest. We disagree and affirm.

Construed to support the verdict, the evidence at trial showed that Brown pushed his way into the home of the 83-year-old victim, hit her on the back of her head with a table lamp, twisted her arm behind her back to force her to the floor, dragged her into another room, tied her wrists and ankles together, and kicked her in the back. Brown and an accomplice then rummaged through the house and left with several guns and the victim’s pocketbook.

The victim suspected the accomplice was involved, because he had been in her house previously and had stolen some checks, so she asked the investigating sheriffs to investigate him. The accomplice identified Brown, whom the sheriffs located in Chicago. Brown was extradited to Georgia, and after the victim identified him in a lineup, a grand jury indicted him on the four counts described above. He was convicted on all four counts.

1. Brown argues that the trial court erred in denying his motion to suppress the victim’s testimony that she identified him at a preindictment lineup because he was entitled to counsel during that lineup. He also argues that the victim’s subsequent in-court identification was impermissibly tainted by the improper lineup.

[T]he right to counsel attaches only to corporeal identifications taking place “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal . charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, [406 U. S. 682, 689 (92 SC 1877, 32 LE2d 411) (1972)].

Coleman v. State, 160 Ga. App. 158 (1) (286 SE2d 494) (1981). Brown’s argument assumes that he had been indicted for these offenses before the lineup because he was extradited from Illinois to Georgia. This allegation is not supported by the record, as he was not indicted until months after the lineup, and an indictment is not required before extradition may be requested. OCGA §§ 17-13-1 (4); 17-13-23. As a result, this enumeration of error is without merit.

Decided April 11, 2000

Saia & Richardson, Joseph J. Saia, for appellant.

Derrick Brown, pro se.

William T. McBroom III, District Attorney, James E. Hardin, Assistant District Attorney, for appellee.

2. Brown contends that the trial court erred in allowing a deputy sheriff to testify that the statement of an accomplice led to Brown’s arrest, arguing that this statement violated his right to confrontation.

On cross-examination, Brown’s trial counsel asked an investigating officer, “Detective, you identified Mr. Brown as a suspect based on information you got from an admitted participant in this offense; isn’t that correct?” The officer acknowledged that this statement was correct. On redirect, the prosecutor asked the detective, “Who was that participant?” He answered, “Ricky Jackson.”

This testimony presents no ground for reversal because Brown’s own conduct led to the introduction of the testimony he now challenges. McWhorter v. State, 271 Ga. 461, 463 (4) (519 SE2d 903) (1999); Sweeney v. State, 233 Ga. App. 862, 865 (4) (506 SE2d 150) (1998). Brown initially raised the topic of how an accomplice led the investigation to Brown; the prosecutor was merely asking that accomplice’s name. We find no error.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


author: Phipps, Judge.

text:
    A00A0232.
    ELLIS v. THE STATE.
    (533 SE2d 451)
   Phipps, Judge.

Fritz Ellis was indicted for armed robbery, aggravated assault, hijacking a motor vehicle, entering a motor vehicle with intent to commit theft, and theft by taking a motor vehicle. On March 24, 1999, he pled guilty under North Carolina v. Alford to armed robbery, entering a motor vehicle with intent to commit theft, and theft by taking a motor vehicle. The remaining charges were nolle prossed. On April 22, Ellis filed a timely notice of appeal. He asserts that the trial court committed procedural error by the manner in which it accepted his plea. We find no error and affirm Ellis’s convictions.

Ellis asserts that the trial court erred by not attempting to resolve the conflict between his guilt and innocence and by failing to determine on the record whether he intelligently concluded his interests were served by entering an Alford plea. Ellis also asserts that the plea hearing record does not “strongly evidence [ ] [his] guilt.”

Under Alford, a guilty plea may be accepted from a defendant who claims innocence “when the defendant intelligently concludes it is in his best interest and the judge has inquired into the factual basis for the plea and sought to resolve the conflict between the plea and the claim of innocence. [Cit.]” At Ellis’s plea hearing, the prosecutor read the indictment into the record to provide the court with a factual basis for the plea, and Ellis affirmed that he was pleading guilty to the charges read. Because the reading of “the indictment provided ample information from which the trial court could discern that the facts alleged by the state actually satisfied the elements of the charges to which [Ellis] was pleading guilty,” a sufficient factual basis was presented.

Moreover, the court expressly found there was a factual basis for the plea. By investigating the factual basis for the plea and determining that one existed despite Ellis’s unwillingness to admit guilt, the court did attempt to resolve the possibility of a conflict between Ellis’s plea and his guilt or innocence.

As to voluntariness and intelligence, Alford pleas are judged by the same standard as routine guilty pleas — “whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. [Cits.]” Here, the trial court expressly found that Ellis entered his plea “freely and voluntarily, knowingly and intelligently.” The record supports a determination that Ellis’s guilty plea was a voluntary and intelligent choice among the alternative courses of action open to him.

Ellis pled pursuant to a negotiated plea agreement. Before he pled, the prosecutor read to him the indictment containing the particulars of the negotiated charges. Ellis responded that he understood the charges and that he was being charged as a party to those offenses. The court advised Ellis of his applicable constitutional rights although Ellis had indicated that his attorney had already advised him of his rights and that he was satisfied with his attorney’s representation. Ellis indicated that he understood his rights and that he could have a trial by maintaining his earlier not guilty plea, that he understood the consequences of entering his plea, and that he was entering his plea freely and voluntarily without force from anyone. Before considering a sentence for Ellis, the court advised him that he could withdraw his plea if the court did not accept the negotiated sentence recommendation. Ultimately, Ellis was sentenced in conformity with the negotiated recommendation. The ten-year term of imprisonment represented the mandatory minimum for armed robbery.

Decided April 11, 2000.

Jody D. Peterman, for appellant.

J David Miller, District Attorney, James E. Hardy, Wesley J. Lewis, Assistant District Attorneys, for appellee.

We find no error in the trial court’s finding that Ellis’s plea was freely, voluntarily, knowingly, and intelligently entered. Encompassed within that finding is the conclusion that Ellis found his interests to be served by entering an Alford plea.

For these reasons, we affirm the judgment of the trial court.

Judgment affirmed.

Johnson, C. J., and McMurray, Senior Appellate Judge, concur.

       400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970).

       See Minchey v. State, 155 Ga. App. 632, 633 (1) (271 SE2d 885) (1980).

        Freeman v. State, 211 Ga. App. 716, 717 (1) (440 SE2d 490) (1994); accord Alford, supra, 400 U. S. at 38, n. 10.

        Green v. State, 265 Ga. 263, 265 (2) (454 SE2d 466) (1995).

       See Brower v. State, 230 Ga. App. 125, 126 (1) (495 SE2d 600) (1998).

        Alford, supra, 400 U. S. at 31.

       See Green, supra, 265 Ga. at 263 (where voluntariness of guilty plea is challenged, there must be a record of guilty plea hearing adequate for reviewing court to determine whether (1) defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea).

       See OCGA § 16-8-41 (b).


text:
    A00A0675, A00A0676.
    DEPARTMENT OF HUMAN RESOURCES v. CITIBANK F.S.B. et al.; and vice versa.
    (534 SE2d 422)
   Eldridge, Judge.

This case involves a complex national contract between Citibank F.S.B. and Citicorp Services, Inc. (“Citibank”) as performing parties and Georgia Department of Human Resources (“DHR”) for the electronic benefits transfer (“EBT”) for delivery of government benefits, state and federal, to recipients of Social Security, Temporary Aid to Needy Families, food stamps, Aid to Families with Dependent Children, unemployment benefits, and other financial benefits by automated teller machine-like means and other electronic means. Citibank had similar contracts with the U. S. Department of the Treasury and other southern states. The numerous documents comprising the Contract in its entirety provided for a “renegotiation clause” in which the parties agreed to renegotiate the Contract “if federal and/or state revisions of applicable law or regulations make changes in the contract necessary.” As part of the customer service for the benefit recipients, Citibank had to provide toll-free long distance telephone access, i.e., a 1-800 number.

However, passage of the Telecommunications Act of 1996, 47 USC § 276 (“Act”) after the Contract was entered into changed the fixed costs imposed on Citibank for calls made by recipients of government benefits from pay telephones as local access fees to the toll-free number. The Act caused holders of “toll-free” numbers, i.e., Citibank, to choose between (1) providing access to those toll-free numbers from pay telephones by paying local access fees, or (2) avoiding the local access fees by declining to provide access to pay telephones. The Contract obligated Citibank only to provide a “toll-free” telephone number that benefit recipients could call for customer service; this was not an obligation to pay the cost of or otherwise provide access to a pay telephone used to dial the toll-free number. DHR’s refusal to renegotiate the Contract with Citibank breached the Contract, and Citibank had the right to terminate access from pay phones.

Case No. A00A0675

1. The trial court, on grant of partial summary judgment to Citibank, determined that, under the terms of the Contract, (a) the Act allowed local access fees to be imposed by pay telephone owners for pay telephone calls to the toll-free numbers and that Citibank had to provide for benefit recipient service; (b) the Act and the subsequent regulations constituted the condition requiring renegotiation of the Contract; and (c) DHR’s refusal to renegotiate the fixed price to reflect the additional cost for local access fees constituted a breach of the Contract. We agree with each such legal conclusion reached by the trial court to grant summary judgment to Citibank.

The Contract comprises five critical documents: (1) the “Invitation for Expressions of Interest to Acquire EBT Services for the Southern Alliance of States” (“IEI”) issued on March 9, 1995, by the Treasury; (2) Citibank’s Technical Response dated August 24, 1995; (3) Citibank’s Best and Final Offer (“BAFO”) pricing proposal dated September 26, 1995; (4) a Financial Agency Agreement between the Treasury and Citibank dated January 24, 1996; and (5) a separate contract dated July 1, 1996, between Citibank and DHR. (“Georgia Contract”), which incorporates a set of “EBT Standard Terms and Conditions” that was developed by the participating states as basic terms shared in the respective individual state and Treasury contracts with Citibank.

Each separate Contract was for a fixed price and term. While providing a fixed price contract at the most competitive terms, Citibank required that the Contract be renegotiated as to fixed price upon change in the applicable laws that necessitated such renegotiation, because the EBT environment had risks of change in the law and regulations unforeseen by any party that could harm Citibank in additional basic costs.

Under the customer service obligation in the IEI, Citibank, as financial agent for the Treasury, would provide a toll-free long distance telephone number for benefit recipients to call for current account and benefit access information by a 1-800 number, twenty-four hours a day, seven days per week. Toll-free means no long distance toll charge by the carrier to the benefit recipient for long distance calls. See 26 CFR § 49.4252-2 (a) (1995) (defining toll charges); 47 CFR § 52.101 (f) (1995) (defining toll-free charges). However, Citibank had no contract obligation to pay local access fees for pay telephone access for benefit recipients. Thus, local access fees did not constitute a core expense or service under the Contract.

Now, under the new regulations, local access fees are the compensation paid to pay telephone owners for the cost of moving calls from a pay telephone to other local telephone carriers. Illinois Pub. Telecommunication Assn. v. Fed. Communications Comm., 117 F3d 555, 559, clarified, 123 F3d 693 (D.C. Cir. 1997); see also 47 USC § 276 (b) (1) (A). As such, local access fees are'not part of the toll-free cost.

Finally, on July 1, 1996, the Contract between DHR and Citibank was executed and incorporated by reference an addendum entitled “EBT Standard Terms and Conditions.” In Paragraph III.C.l, the Contract contained the renegotiation provision.

In performance, Citibank provided the toll-free number at its cost through both automated and live customer service functions to respond to benefit recipients. However, IEI does not obligate Citibank to pay local access charges for pay telephones, so that benefit recipients may have access to the toll-free number at no cost to them. Under the former federal communications law and regulations, there had been no local access fee to connect to a toll-free number from pay telephones. Therefore, the Contract did not mention local access fees for pay phones to toll-free numbers, nor did the Contract contemplate such costs, because local access fees from pay telephones to toll-free numbers did not exist when the Contract became final.

In 1997, the Federal Communications Commission (“FCC”), under the Act, promulgated new rules and regulations for the pay telephone industry that created local access fees. The FCC authorized owners of local pay telephones to charge a per-call local access fee for using a pay phone to call a toll-free number. Long after the Contract was being performed, this new regulation was promulgated on October 9, 1997. The Georgia Contract was formulated after the IEI was issued in early 1995, and Citibank’s BAFO was submitted on September 26, 1995. Thus, Citibank had no way to protect itself except through the renegotiation provision which DHR agreed to include in the Contract or to terminate access to pay telephones.

Thus, in 1997, Citibank faced increased costs resulting from both a law and regulation change, requiring the Contract renegotiation under the Contract’s clear and express terms. Therefore, DHR breached the Contract in refusing to renegotiate the cost for local access fees for pay telephone usage. See OCGA § 13-2-2 (4). DHR had a contractual duty to negotiate an increase in Citibank’s compensation to reimburse the amount of the local access fees incurred. Upon DHR’s refusal to negotiate an increase in Citibank’s compensation, Citibank can decline to accept calls placed from pay telephones to the toll-free number without breaching the contract.

The parties reached a definite and final agreement that was legal and enforceable, and which had a provision for renegotiation of cost in the event of a contingency condition occurring, i.e., a change in law or regulations affecting the Contract, which was a condition subsequent. See Roberson v. Eichholz, 218 Ga. App. 511, 513 (1) (462 SE2d 382) (1995); Cole v. Shoffner, 205 Ga. App. 65, 67 (3) (b) (421 SE2d 322) (1992). The existence of a condition subsequent does not make the Contract vague or unenforceable where there existed mutuality of obligation at the time of performance. Where a contract is definite in terms, a condition precedent or a condition subsequent will not void the contract. See OCGA § 13-3-4; Moore v. Buiso, 235 Ga. 730, 731-732 (221 SE2d 414) (1975); Fulton County v. Collum Properties, 193 Ga. App. 774, 775 (1) (388 SE2d 916) (1989); Rothberg v. Charles H. Hardin Constr. Co., 111 Ga. App. 41, 45-46 (140 SE2d 520) (1965). Where a contract has a condition subsequent, the occurrence may excuse performance or otherwise allow the contract to be modified. See generally Winn v. Tabernacle Infirmary, 135 Ga. 380, 383 (69 SE 557) (1910); King Indus. Realty v. Rich, 224 Ga. App. 629, 631-632 (4) (481 SE2d 861) (1997).

The new consideration for the modification in the Contract would be a higher fixed fee by DHR and acceptance of calls from pay telephones by Citibank. The general rule regarding an agreement to agree in the future has no application here, because there was a compíete agreement in all terms at the time of performance, i.e., a meeting of the minds and full performance by both parties in the first two years of the Contract, before the new regulations under the Act necessitated a change in the Contract. See, e.g., Poulos v. Home Fed. Sav. &c. Assn., 192 Ga. App. 501, 503 (2) (385 SE2d 135) (1989); Hartrampf v. C & S Realty &c., 157 Ga. App. 879, 881 (1) (278 SE2d 750) (1981); Nuclear Assurance Corp. v. Dames & Moore, 137 Ga. App. 688, 689 (225 SE2d 97) (1976). The terms of the Contract, while complex, were definite until the condition subsequent occurred; the renegotiation clause merely allowed performance under the fixed price and access by pay phone to be changed, if the condition subsequent occurred. See generally Southeastern Underwriters v. AFLAC, 210 Ga. App. 444, 446 (1) (436 SE2d 556) (1993).

In a public contract, the trial court has the special obligation of choosing among reasonable meanings of construction that serves the public interest. Clear-Vu Cable v. Town of Trion, 244 Ga. 790, 792 (1) (262 SE2d 73) (1979). While this contract is not ambiguous, if it were, the trial court’s construction enforcing Paragraph III.C.l to require renegotiation serves the public interest best, because such construction allows state or other governmental agencies to receive the lowest bid on contracts and also allows the bidder to eliminate the risk premium for contingencies that may never arise. If the condition subsequent arises, then the parties can address such change in fixed costs through subsequent contractual adjustment. Therefore, the trial court properly granted partial summary judgment in finding as a matter of law that DHR breached the Contract.

Case No. A00A0676

2. Citibank contends that the trial court erred in granting DHR’s motion for partial summary judgment with respect to its declaratory judgment action. We agree.

Under the Contract, Citibank had no duty to pay the local access fees and could deny access to its toll-free number to pay telephones, as found in Division 1. Since it had no duty to pay such local access fees, then it incurred an economic injury not provided for in the Contract by continuing to accept on its toll-free number calls from pay telephones for which it had to pay local access fees and which it had no duty to accept, and such condition continues into the future. DHR refused to renegotiate the fixed fees to allow Citibank to accept such calls from pay telephones on its toll-free number without continuing economic injury. However, DHR contended that Citibank had to continue to do so as part of the services that Citibank was obligated to render or be in breach of the Contract if it stopped accepting the pay calls on its toll-free number.

Clearly this was an actual controversy where the parties were uncertain and insecure in their rights as to obligations which were not covered by the Contract, i.e., the duty to provide access to its toll-free number to pay telephones. See OCGA § 9-4-2; Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312, 314 (66 SE2d 726) (1951). The Declaratory Judgment Act is to be liberally construed to effect its purpose. Atlanta Cas. Co. v. Fountain, 262 Ga. 16, 17 (413 SE2d 450) (1992). See also Calvary Independent Baptist Church v. City of Rome, supra at 314. Although DHR has .been held to have breached its contract to renegotiate, such decision does not resolve Citibank’s dilemma, because the Contract still has several years remaining, and Citibank will continue to incur economic loss if it has to accept the pay telephone calls on the toll-free number and incur the local access fees or risk suit for breach of contract if it denies access. This legal and factual situation constitutes a classic reason for declaratory relief because of uncertainty as to future action where rights have not accrued. Atlanta Cas. Co. v. Fountain, supra at 18; Ins. Center v. Hamilton, 218 Ga. 597, 600 (129 SE2d 801) (1963); Enron Capitol &c. Corp. v. Pokalsky, 227 Ga. App. 727, 729 (1) (490 SE2d 136) (1997); Jahncke Svc. v. Dept. of Transp., 134 Ga. App. 106, 107-108 (2) (213 SE2d 150) (1975).

This is not a case in which declaratory judgment is sought to test the other party’s defenses, because the action is to determine future action, i.e., whether Citibank has a contractual duty to pay the local access fees for pay phone access to its toll-free number as part of its obligation to provide customer service to benefit recipients; this action does not deal with accrued rights under the Contract for past conduct. Citibank wants to know if it can deny access to pay telephones, saving the cost of local access fees that cannot now be recouped. If Citibank has no duty to do so, but continues to pay, then it incurs unrecoverable economic losses for past local access fees paid voluntarily, but, if it stops access to pay phones, then it may be sued for breach of contract by DHR. Thus, this is not a case where state administrative procedure is available, has not been exhausted, is completed without appeal, or rights have accrued from prior action. See generally State Health Planning Agency v. Coastal Empire Rehabilitation Hosp., 261 Ga. 832, 833 (412 SE2d 532) (1992); Chambers of Ga. v. Dept. of Natural Resources, 232 Ga. App. 632, 634 (502 SE2d 553) (1998). This is an actual controversy, which means “a justiciable controversy where there are interested parties asserting adverse claims on an accrued set of facts.” (Citation omitted.) Id. Clearly Citibank is “walking in the dark as to what future position to take.” (Citation omitted.) Id.

Construction of a contract is a question of law for the trial court. OCGA § 13-2-1. The cardinal rule of construction is to determine the intent of the parties and apply the contract’s clear intent when such intent does not contravene any rule of law. Id. There exists no jury question, even in the case of ambiguous contracts, unless such ambiguity remains after the trial court has applied all rules of construction. F & F Copiers v. Kroger Co., 194 Ga. App. 737, 738 (1) (391 SE2d 711) (1990).

DHR, the Treasury, and the Southern Alliance of States drafted the Contract and, therefore, bear the consequences of any ambiguity being construed against them. OCGA § 13-2-2 (5); Western Contracting Corp. v. State Hwy. Dept., 125 Ga. App. 376, 381 (1) (187 SE2d 690) (1972). They chose to use the toll-free number for long distance telephone access without any definition, limitation, or qualification within the Contract that would require Citibank to pay local access fees for pay telephone calls to the toll-free number. F & F Copiers v. Kroger Co., supra at 739.

“Toll-free,” regarding long distance telephoning, has a FCC definition which governs, absent an expression to the contrary clearly stated in the Contract, and the trial court must judicially notice such federal law. “Toll-free” simply means providing long distance calling without charge by the long distance carrier; it does not address local access fees by pay telephone to local telephone carriers. See 26 CFR § 49.4252-2 (a); 47 CFR § 52.101 (f); Sims v. Southern Bell Tel. &c. Co., Ill Ga. App. 363, 364 (141 SE2d 788) (1965); see also 44 USC §§ 1507; 1510. Local access fees for pay telephones are access charges imposed by local telephone owners for moving a call from a pay phone to the local telephone exchange for purposes of routing the call to a long distance carrier. See FCC Order No. 97-371 (October 9, 1997), 47 CFR Part 64, Subparagraph M; see also 47 USC § 276 (b) (1) (A). Since “toll-free” has a well-understood technical meaning, then the trial court must apply such meaning. OCGA § 13-2-2 (2).

This Contract must be enforced according to its clear terms. McCaughey v. Murphy, 225 Ga. App. 874, 877 (2) (485 SE2d 511) (1997). The trial court, by way of construction, is prohibited from extending the contractual terms beyond what is fairly within the existing contract terms, i.e., requiring Citibank to incur the local access fees for pay phone calls to the toll-free number. Even though it would have been desirable for DHR to have made local access fees a part of the required customer service for benefit recipients, this was DHR’s mistake, and the trial court cannot redefine toll-free number, customer service, scope of the Contract, or core service to imply an obligation that was never there under the Contract. Ga. Ports Auth. v. Servac Intl., 202 Ga. App. 777-778 (1) (415 SE2d 516) (1992). The trial court cannot imply an obligation on one party to the Contract that is not fairly imposed under the express terms of the Contract. Here, local access fees were not in the contemplation of the parties when the Contract was entered into, because local access fees resulted from subsequent regulations. American Home Assurance Co. v. Smith, 218 Ga. App. 536, 538 (1) (462 SE2d 441) (1995).

Decided April 11, 2000

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, William C. Joy, R. O. Lerer, Senior Assistant Attorneys General, Michelle C. Egan, Assistant Attorney General, for appellant.

Alston & Bird, John E. Stephenson, Jr., Charles E. Young, Jr., James W. Hagan, Jeffrey J. Swart, for appellees.

Citibank is entitled to the construction of the Contract that paying the local access fees from pay telephones to its toll-free number is not part of its obligation to provide a toll-free telephone number benefit recipient service and that it can refuse to accept such calls unless reimbursed by DHR under a renegotiated Contract. Thus, Citibank is entitled to declaratory judgment in its favor to that effect that it may cease receiving pay phone calls to its toll-free number.

Judgment affirmed in Case No. A00A0675. Judgment reversed, vacated, and remanded with directions in Case No. A00A0676.

Blackburn, P. J, concurs. Barnes, J., concurs fully in Case No. A00A0675 and concurs in judgment only in Case No. A00A0676.

       Several southern states, as the Southern Alliance of States (“SAS”), formulated the standard terms for the Contract and were individual parties to the Contract with Citibank with separate state agreements; Georgia was a member of the SAS.


text:
    A00A0949.
    FRANKLIN v. THE STATE.
    (533 SE2d 455)
   Eldridge, Judge.

A jury in Hall County found Rickie J. Franklin guilty of unlawfully appropriating Ray York’s timber. In his sole enumeration of error, Franklin contends that the trial court erred in denying his special demurrer to the felony theft by taking indictment returned against him, since an averment in the indictment was allegedly “legally and practically impossible.” We have examined the indictment in light of Franklin’s contention, and we affirm his conviction.

A person commits the offense of felony theft by taking when he “unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property [worth more than $500] of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” OCGA § 16-8-2.

The indictment returned against Franklin alleged that he “did unlawfully being in lawful possession of timber, the property of Ray A. York, with a value greater than $500, appropriate said property with the intention of depriving said owner of said property.”

The crux of Franklin’s argument is that the averment in the indictment, “unlawfully being in lawful possession,” is a legal and factual impossibility and, therefore, any presentation of facts at trial must vary fatally from the averment in the indictment.

We agree that the indictment was inartfully drawn. But what is under discussion here is a misplaced modifier in an otherwise technically correct indictment drawn in the language of the theft by taking statute.

When trial has been had before the appellate court reviews the merits of the special demurrer, where no prejudice to defendant has occurred though the indictment or accusation or citation is not perfect, reversal is a mere windfall to defendant and contributes nothing to the administration of justice. The true test of the sufficiency of an indictment or accusation or citation is not whether it could have been made more definite and certain or, for that matter, perfect, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused. Upon a proceeding after verdict, no prejudice being shown, it is enough that necessary facts appear in any form, or by fair construction can be found within the terms of the indictment or accusation or citation. Thus, a defendant who was not misled to his prejudice by any imperfection in the indictment or accusation or citation cannot obtain reversal of his conviction on that ground.

(Citations and punctuation omitted; emphasis supplied.) Miller v. State, 182 Ga. App. 700, 701 (356 SE2d 900) (1987).

Other than directing our attention to the poorly drafted language in the indictment, Franklin has not alleged that he was prejudiced thereby. He has not alleged that he was confused or misled by the indictment. He has not alleged that the jury was confused by the indictment, nor does the record show such. He has not alleged that the indictment failed to apprise him of the offense he had to defend against or that the language of the indictment leaves him open to future prosecutions for the same offense. In sum, Franklin seeks reversal simply because of the misplaced modifier. That we will not do in the absence of any prejudice derived therefrom. The indictment contained the statutory elements of the offense. Fairly constructed, it apprised Franklin of the charges against him and serves to preclude a future prosecution for unlawfully appropriating York’s timber between July and December 1996. The trial court did not err in denying Franklin’s special demurrer to the indictment.

Decided April 11, 2000

Charles B. Brown, for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       “Unlawfully” is an adverb which modifies “appropriate.” “Unlawfully” is — sadly — separated from its verb by three adjectival phrases, one describing Franklin (being in lawful possession of timber) and two describing the timber (the property of York, with a value greater than $500).

        Shelton v. State, 216 Ga. App. 634 (455 SE2d 304) (1995); Lewis v. State, 215 Ga. App. 486, 487-488 (451 SE2d 116) (1994). See State v. Eubanks, 239 Ga. 483 (238 SE2d 38) (1977).


text:
    A00A0990.
    PROGRESSIVE PREFERRED INSURANCE COMPANY v. AGUILERA et al.
    (533 SE2d 448)
   Eldridge, Judge.

Progressive Preferred Insurance Company (“Progressive”) appeals from the Hall County Superior Court’s order in a declaratory judgment action initiated by Progressive. Finding no error, we affirm.

The record shows the following undisputed facts: In May 1996, two or more vehicles collided in North Carolina, allegedly injuring some of the occupants of the vehicles, Thomas and Macie Keith and Bernadette Little. The Keiths and Little filed suit in North Carolina against the driver of one of the vehicles, Sotero Aguilera. Sotero Aguilera was employed by El Gallo, a company owned by his brother, David Aguilera. El Gallo was insured by an automobile insurance policy originally issued by Progressive in May 1995 and renewed in May 1996, a few days before the collision.

A few days before the May 1996 renewal, however, David Aguilera contacted a different insurance company about providing automobile insurance coverage for his business but was told that he would need to provide the names and driver’s license numbers of all of the drivers his business employed. David Aguilera did not have that information available at that time, and because his policy was about to expire, he contacted Progressive to renew with them. El Gallo renewed the Progressive policy and continued to pay premiums until the policy was canceled in February 1997, effective March 29, 1997. Even so, Progressive refused to defend or provide coverage to El Gallo for the North Carolina collision on the basis that the insurance policy was void under OCGA § 33-24-7 (b). Progressive claimed that David Aguilera had misrepresented who would be driving the insured vehicles by failing to list the actual drivers, including Sotero Aguilera, on the insurance application.

The only issue for determination in the declaratory judgment action, then, was whether the policy was void because of David Aguilera’s alleged misrepresentation. David Aguilera repeatedly denied that he had misled Progressive’s agent in any way concerning who was driving the vehicles. According to his testimony, when he renewed the policy in May 1996, he specifically asked Progressive’s agent if he would need the other drivers’ personal information in order to renew and was told by the agent that Progressive did not require such information. David Aguilera stated in his affidavit that Progressive’s agent specifically reminded him that the insurance company had paid a previous claim based upon a collision involving an El Gallo employee who was not listed on the insurance policy. Another witness who had accompanied David Aguilera to Progressive at the time of renewal corroborated this testimony and also testified that Progressive’s agent assured David Aguilera that the company would pay if one of his drivers was involved in a collision.

Progressive’s agent testified that, when David Aguilera renewed his policy in May 1996, she assisted him by filling out the renewal application for him to sign. She stated that she copied much of the information from the initial application, which had been completed in 1995. She also admitted that she discussed with David Aguilera the fact that other drivers were driving the company’s vehicles. However, she testified that she told David Aguilera that the other drivers would need to be listed and that he needed to get that information to her. By affidavit, she also claimed to tell David Aguilera that, until such information was added to the policy, he should not let anyone else drive the company’s vehicles. David Aguilera denied that Progressive’s agent ever gave such warning.

After hearing this testimony and considering the other evidence of record, the trial court ruled that Progressive was obligated to defend and provide coverage to Sotero Aguilera in the North Carolina lawsuit. Progressive appeals this ruling. Held:

1. In its first enumeration of error, Progressive claims that the trial court erred in failing to make specific findings of fact in its November 1999 declaratory judgment, pursuant to OCGA § 9-11-52 (a), which reads as follows: “In ruling on interlocutory injunctions and in all nonjury trials in courts of record, the court shall upon request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law.” (Emphasis supplied.) See also Middlebrooks v. Fleet Finance, 217 Ga. App. 263 (2) (456 SE2d 627) (1995) (holding that findings of fact and conclusions of law are not required unless a party requests them prior to the trial court’s ruling). The findings of fact serve three purposes, as follows: (1) they aid the trial judge’s process of adjudication; (2) they assist in the determination of issues involving res judicata and estoppel by judgment; and (3) they aid the appellate court on review. Greene County v. North Shore Resort &c., 238 Ga. App. 236, 240 (2) (517 SE2d 553) (1999).

Progressive claims that it requested that the trial court find the facts specially by including such request in a consolidated pretrial order dated August 9, 1999, nunc pro tunc November 4, 1998. The alleged requests for findings were framed as “issues for determination by the jury.” However, most of the issues did not involve disputed facts, and the remaining issues solely involved witness credibility.

Further, on January 19,1999, Aguilera’s attorney sent a letter to the trial court which stated as follows:

I have discussed with Progressive’s attorney Brett Shur, the fact that neither of us feels that there are any genuine issues of material fact in this case. There is really nothing for a jury to decide in this case, and I am therefore enclosing a Withdrawal of Jury Demand in this case.

(Emphasis supplied.)

A bench trial was conducted on August 18, 1999. The parties did not submit proposed findings of fact to the trial court after the above communications or before judgment. The trial court entered the following order on November 16, 1999:

Based upon the evidence and application of the law thereto, the Court finds in favor of [all defendants]. The Court finds that Progressive Preferred insurance company must defend and provide coverage for its insured, David Aguilera and Sortero [sic] Aguilera.

After the order was issued, Progressive waived the opportunity to request that the trial court amend its order to include findings of fact under OCGA § 9-11-52 (c).

Under these circumstances, this Court finds that Progressive’s alleged pretrial request for written findings of fact was legally insufficient under OCGA § 9-11-52 (a) to mandate that the trial court issue such findings. See Gold Kist v. Wilson, 220 Ga. App. 426, 427-428 (1) (469 SE2d 504) (1996) (noting that a similar pretrial request was insufficient under OCGA § 9-11-52 (a), which requires a “formal” request on the record). As such, there was no error.

2. In its second enumeration, Progressive contends that the trial court erred in entering the declaratory judgment against it because the evidence presented allegedly supported a ruling in its favor. However, the appellate standard of review for nonjury trials of disputed material facts is the clearly erroneous test, also known as the “any evidence” rule. Hirsch v. Joint City County Bd. &c., 218 Ga. App. 881, 882 (1) (463 SE2d 703) (1995). As such, the sole question for determination on appeal is “whether there is any evidence to authorize [the trial court’s] judgment. It is our duty to construe the evidence to uphold the judgment rather than upsetting it.” (Citations and punctuation omitted.) Mills v. Berlex Laboratories, 235 Ga. App. 873, 875 (510 SE2d 621) (1999). This is true regardless of whether evidence also existed that may have supported Progressive’s position. Id. “In the absence of legal error, an appellate court is without jurisdiction to interfere with [a] judgment supported by some evidence.” (Citations and punctuation omitted.) Id.

Decided April 11, 2000.

Shur, McDuffie, Brockman & Leveille, Brett F. Shur, for appellant.

E. Wycliffe Orr, for appellees.

Pretermitting the issue of whether OCGA § 33-24-7 (b) can be applied to retroactively cancel a commercial automobile insurance policy, there was evidence in the record that David Aguilera did not intentionally misrepresent, omit, conceal, or incorrectly state the material facts during his dealings with Progressive. See OCGA § 33-24-7 (b). In the absence of such misrepresentations, Progressive was required to defend El Gallo and its employees under the policy. Id. Therefore, the evidence supported the trial court’s judgment in this case.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       The Keiths and Little are not parties to this appeal.

       Under OCGA § 33-24-7 (b),
      Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless: (1) [flraudulent; (2) Material either to the acceptance of the risk or to the hazard assumed by the insurer; or (3) [t]he insurer in good faith would either not have issued the policy or contract in as large an amount or at the premium rate as applied for or would not have provided coverage with respect to the hazard resulting in the loss if the true facts had been known to the insurer as required either by the application for the policy or contract or otherwise.

       In its brief to this Court on this issue, Progressive repeatedly and exclusively cites to cases which hold that the trial court is required to issue written findings of fact in nonjury trials, regardless of whether a request was made by the parties. However, these cases were decided before the statute was amended in 1987 to require a party to make a prejudgment request for such findings. See Ga. L. 1987, pp. 1057,1058, § 1.

       In the order, Progressive asked for the jury to determine the following factual issues:
      1) Was David Aguilera asked by agents with Progressive Preferred Insurance Company to list all drivers of his vehicles? 2) Was David Aguilera informed, before May 31, 1996, that he would have no coverage if an accident occurred while one of the unlisted drivers was operating one of his vehicles? 3) Did Sotero Aguilera drive one of David Aguilera’s vehicles both before and after May 28, 1996 when the accident that is the subject of this lawsuit occurred? 4) Did David Aguilera ever list Sotero Aguilera as a driver on his policy? 5) Would Plaintiff have charged a higher premium if it had known the true facts?
      The plaintiff also requested a “special interrogatory verdict question form” for the jury to use in resolving these issues and suggested that the above questions were “some of the possible questions” that could be included in the special verdict form.

       OCGA § 9-11-52 (c) gives a party 20 days after the entry of judgment to request that the trial court make or amend its findings and the judgment thereon. Further, a party’s failure to request specific findings of fact within 20 days of the judgment waives appellate consideration of any ground of appeal that requires consideration of such findings. Id.

       See OCGA §§ 33-24-44; 33-24-45; Ga. Farm &c. Ins. Co. v. Phillips, 251 Ga. 244, 246 (304 SE2d 725) (1983); Sentry Indem. Co. v. Sharif, 248 Ga. 395, 397 (282 SE2d 907) (1981); Pearce v. Southern Guaranty Ins. Co., 246 Ga. 33, 38-39 (268 SE2d 623) (1980).


author: Smith, Judge.

text:
    A99A1711.
    COMSOUTH TELESERVICES, INC. v. LIGGETT et al.
    (531 SE2d 190)
   Smith, Judge.

In this action brought by former employee Cathy Liggett and her husband, we granted the application of ComSouth Teleservices, Inc. for interlocutory appeal from an order denying its motion for summary judgment. Liggett filed suit in Bibb County, alleging claims that could be construed as intentional infliction of emotional distress, defamation, and fraud. Liggett’s husband alleged loss of consortium. ComSouth answered, denying liability, and moved to dismiss for improper venue. After a hearing on the motion, the case was ordered transferred to Pulaski County, where ComSouth’s motion for summary judgment was denied. The trial court then certified the case for immediate review. We agree with ComSouth that summary judgment was warranted, and we therefore reverse the trial court’s ruling.

ComSouth contends the trial court erred in denying its motion for summary judgment because it carried its burden of showing that no genuine issue of material fact remained and that judgment in its favor was demanded when the evidence was viewed in the light most favorable to Liggett as the nonmoving party. ComSouth argues that as a defendant in the action, it was necessary to show only that one essential element of each of Liggett’s claims had been negated, and that it had done so. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). We agree.

The record shows that Liggett’s claims arose from her termination from employment at ComSouth. On January 29, 1997, Liggett’s physician recommended that she enter a hospital for certain medical procedures. These procedures were scheduled for Monday, February 3,1997, and she requested time off, which was granted. The day after the procedures, on February 4, 1997, ComSouth notified her that she was terminated immediately. The separation notice gave her “period of last employment” as ending on January 31, 1997, and stated that the reasons for termination were failure to observe company policies regarding courtesy, verbal abuse, and disregard of instructions. When Liggett applied for unemployment compensation, ComSouth contested the claim but did not appear for an appeal hearing.

Liggett alleged in her complaint that ComSouth intentionally represented to the Department of Labor that she was terminated for cause on January 31, 1997, to prevent her from receiving unemployment benefits. She maintained that ComSouth also “falsely, fraudulently, and intentionally misrepresented” her termination date in an effort to prevent her from collecting medical benefits due her, knowing that her medical claim for the procedures performed on Monday, February 3, 1997, would be denied if she had been terminated the preceding Friday. She alleged that these actions by ComSouth caused her “extreme and excruciating mental pain and anguish as well as emotional distress” and that ComSouth’s portrayal of her as a bad employee restricted her ability to obtain other employment.

1. To recover for intentional infliction of emotional distress, Liggett must show four elements: “(1) The conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe.” (Citations and punctuation omitted.) Biven Software v. Newman, 222 Ga. App. 112, 113 (1) (473 SE2d 527) (1996). Our courts have found liability only when the conduct is so outrageous and extreme that it exceeds

all possible bounds of decency, and [is] regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

(Citations and punctuation omitted.) Id. at 114. In addition, “[t]he law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.” (Punctuation omitted.) Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (335 SE2d 445) (1985).

The evidence presented in this case clearly fails to meet this standard. First, Liggett testified that approximately half of her suffering was caused by her termination, with its attendant financial strain on her family. But Liggett was an at-will employee, and Com-South maintains it had good reason to fire her. The termination itself was certainly not outrageous. Second, although Liggett asserts that the rest of her distress was caused by the denial of her medical coverage, she acknowledges in her brief that the health benefits claim has been paid. Robert Gilbert, the president of ComSouth Monitoring Services, a division of ComSouth Teleservices, Inc., testified that the incorrect date on her separation notice was a mistake, and when he learned of it, he corrected it. Liggett offered no evidence that the incorrect date was stated intentionally. Third, although Liggett alleged that she suffered excruciating and intolerable mental distress, her deposition testimony was that this excruciating distress consisted of worry over unpaid bills, which had also happened in the past, and not feeling well, although she sought no psychological treatment. She testified that her relationship with her husband had not changed significantly during the time after she was terminated by ComSouth, with the exception that he was away from home working more, because he had to replace the income she had been bringing home. This evidence was insufficient to support a claim for intentional infliction of emotional distress. Biven, supra at 115 (1). The trial court erred in denying ComSouth’s motion for summary judgment on that claim.

2. To the extent the complaint alleged a claim for defamation, the trial court erred in denying ComSouth’s motion for summary judgment as to such a claim as well. To recover for defamation, a plaintiff must show publication. Fly v. Kroger Co., 209 Ga. App. 75, 77 (1) (432 SE2d 664) (1993). In this case, Liggett has shown no publication except to the Department of Labor, a communication that was absolutely privileged. OCGA § 34-8-122 (a). Liggett admitted she had no knowledge of any publication, and ComSouth presented evidence that it never publicized Liggett’s termination to anyone outside the company.

Decided March 14, 2000

Reconsideration dismissed April 12, 2000.

Jones, Cork & Miller, Thomas W. Joyce, for appellant.

Mills & Chasteen, Ben B. Mills, Jr., for appellees.

3. For the same reasons, to the extent the complaint may state a claim for fraud, the trial court erred in denying ComSouth’s motion for summary judgment on that claim as well. To recover for fraud, Liggett was required to show five elements: a false representation, scienter, intent to induce the plaintiff to act or refrain from acting, justifiable reliance by the plaintiff, and damages. Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989). Even assuming without deciding that the separation notice contains a misrepresentation, no showing was made that ComSouth knew it was false or acted with the intent to defraud Liggett. When ComSouth learned the notice was being used to deny medical coverage to Liggett for the procedure performed February 3, 1997, by implying that she had been terminated on January 31,1997, it corrected this impression. The evidence was therefore insufficient to support a claim for fraud.

Judgment reversed.

Pope, P. J., and Miller, J., concur.

       The separation notice states only that Liggett worked from August 12, 1996 to January 31, 1997, which was factually correct.