text:
    A92A0830.
    MATHIS v. THE STATE.
    (420 SE2d 788)
   McMurray, Presiding Judge.

David Paul Mathis was convicted of the offense of trafficking in cocaine and appeals from his conviction.

The State presented evidence showing that during an investigation of drug activity in Oconee County detectives from the City of Athens observed a suspected drug dealer, later identified as Flenard Smith, talking to an unknown male outside of Room No. 30 at the Butler Motor Inn. The officers followed Smith when he left the motel and apprehended him in Clarke County, where he was found to be in possession of an ounce of cocaine. After Smith was arrested and a search warrant was obtained, the detectives and other officers searched Room 30 at the Butler Motor Inn. No one was in the room at the time the search warrant was executed, although a cooking unit was still warm. Under the bed a large quantity of suspected cocaine was found in a shoe box inside a blue zippered bag, along with defendant’s wallet and numerous other personal items belonging to him. The officers also discovered personal papers of a co-defendant, Darlene Smith, including the positive results of a pregnancy test. Further investigation revealed that defendant had been renting the room for three months, and that only he and the motel manager had a key.

Testimony of Larry Wheeler of the Georgia Bureau of Investigation Crime Laboratory that he performed three tests on the suspected cocaine was objected to by defendant because the nature and results of these tests were not included in the scientific report which had been served pursuant to OCGA § 17-7-221, but was allowed in evidence. At the close of the State’s case, the trial court directed a verdict in favor of Darlene Smith, ruling that the evidence had failed to show any legal right to control of the premises in the room in which the drugs were found so as to prove her possession. Defendant moved for mistrial on the ground that the jury would retaliate against him if Ms. Smith were released on a “technicality.” The motion was overruled and the trial judge instructed the jury that in so doing he was making no implication one way or the other as to the guilt or innocence of the defendant, as that was a separate matter.

Two defense witnesses testified that they had seen the defendant staying at the Red Carpet Inn in Madison, Georgia during the month of March, but they were unable to give the precise dates. Flenard Smith testified that there were four people he did not know in Room 30 of the Butler Motor Inn when he bought the cocaine, but defendant was not present. Defendant testified that although he had rented the room at the Butler Motor Inn, on the day in question he was actually staying at the Red Carpet Inn. Darlene Smith testified that she had stayed in Room 30 of the Butler Motor Inn once or twice a week during the time period in question, and that defendant was the father of her child. The trial court denied defendant’s motion for directed verdict on the ground that the mere presence of contraband on premises owned or occupied by an accused was insufficient to sustain a conviction when there is evidence of access by others, proof of the defendant’s having leased the room where the contraband was seized raised an inference that the cocaine was in his control. The court then refused to instruct the jury on alibi as requested by defendant and the jury returned a verdict of guilty. Held:

1. Defendant contends that the trial court erred in overruling his motion for directed verdict of acquittal on the ground that as a matter of law the State had failed to exclude every reasonable hypothesis except that the contraband was in his actual or constructive possession. In support of this contention, he relies upon cases in which this court reversed possession convictions because there was sufficient affirmative evidence of equal access by others, which he argues are controlling here. We do not find the equal access principle to mandate reversal here as there was no affirmative evidence that anyone other than defendant had equal access to the room where the contraband was found. While the evidence established that numerous other people had access to the room, defendant was the one shown to have leased the premises and the only one to have a key. The fact that there were others present on the morning the cocaine was found is not affirmative evidence that any of these people could have been responsible for the presence of the contraband, as defendant insists. The equal access rule is not properly invoked in regard to persons who are merely visiting, even overnight; “[t]hus ‘equal access’ is not merely ‘access.’ ” Barnes v. State, 175 Ga. App. 621, 626 (1) (334 SE2d 205) (1985) [affirmed in part and reversed in part, on other grounds, in Barnes v. State, 255 Ga. 396 (339 SE2d 229)].

“The equal access defense is based on the rule that ‘merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.’ [Cits.] For the equal access rule to rebut the inference of defendant’s possession of contraband, affirmative evidence must be presented that a person other than the defendant had equal access to the premises where the contraband was found. Cochran v. State, 190 Ga. App. 884 (1) (380 SE2d 319) (1989). In the case now before us, no evidence was presented to show [that anyone else had equal access to defendant’s personal bag under the bed in the room he had rented]. Thus we reject [his] argument that the evidence was insufficient to support his conviction. [Cit.] ‘A directed verdict of acquittal is authorized only where there is no evidence to support a verdict to the contrary. See OCGA § 17-9-1. In the instant case, there was clearly sufficient evidence from which a rational trior of fact could find (defendant) guilty beyond a reasonable doubt. (Cit.)’ [Cits.]” Nelson v. State, 199 Ga. App. 487 (1), 488 (405 SE2d 310) (1991). Accord Carswell v. State, 201 Ga. App. 746 (412 SE2d 572) (1991).

2. Defendant’s challenge to the State’s being allowed over objection to introduce testimony concerning scientific tests and their results which had not been described in the official report is governed by Andrews v. State, 196 Ga. App. 790 (397 SE2d 63) (1990), rather than by Durden v. State, 187 Ga. App. 154 (369 SE2d 764) (1988) as he argues. “The proscription of [OCGA § 17-7-211] was applied in Durden, supra at 158, because ‘the scientific evidence which was denied to the defense, in fact comprised the entire substance of the State’s case.’ Here, the State’s evidence was not quantitative but related solely to whether the substance was or was not cocaine. Identity of the substance was the issue; quantity and quality were not. The report included what the expert testified, that the substance tested positive for cocaine.

“Carson v. State, 192 Ga. App. 52 (1) (383 SE2d 619) (1989) distinguished [Durden and the cases following it] as involving attempts to prove amount of substance and degree of impairment, so that merely reporting presence of substance was insufficient. In this case the State limited its examination of the expert to the identity of the substance, which conclusion was contained in the report. Carson controls. Documents generated by each of the tests performed were not required. ‘The penalty the State suffers for failure to furnish a copy of a report is the exclusion of that report from evidence.’ [Emphasis in original.] [Cit.]” Andrews, supra at 791. Consequently, defendant was not entitled to a mistrial on this ground.

3. When the trial court granted a directed verdict of acquittal to Darlene Smith, defendant moved for mistrial on the ground that letting his co-defendant off on what the jury might well deem to be a technicality made it likely they would retaliate by convicting the remaining defendant. The court explained to the jury that the evidence failed to show that Ms. Smith had any right to control of the premises in which the drugs were found; and that although there was evidence of certain items with her name on them and some clothing which may or may not have been hers were found in the room, that was insufficient evidence to justify a conviction or to prove her possession of the contraband beyond a reasonable doubt as required by law. On appeal, defendant now objects to the court’s explanation for the ruling, contending that the jury could only conclude that the judge meant there was sufficient evidence to establish possession in the defendant since he was not acquitted with his co-defendant. Although the court further told the jurors that the directed verdict was no implication “one way or another as to the guilt or innocence of the other defendant, David Paul Mathis,” defendant complains that this curative instruction “missed the point.”

We are unaware of any authority which prohibits a trial judge from granting a motion for directed verdict of acquittal to a co-defendant, if warranted, nor has any been cited. Assuming such a ruling or the reasons given the jury therefor were in error, defendant has still failed to show how he was prejudiced or harmed as is necessary to authorize reversal. Cf. Ballentine v. State, 194 Ga. App. 560, 562 (4) (390 SE2d 887) (1990); Howell v. State, 164 Ga. App. 321 (2) (296 SE2d 367) (1982); Camp v. State, 164 Ga. App. 253, 254 (1) (296 SE2d 799) (1982). “The court has a broad discretion in passing on motions for mistrial, which will not be controlled except for manifest abuse. [Cit.]” Howell, supra at 322. In any event, even if we considered the trial court’s ruling an abuse of discretion, this court will not consider issues and grounds of objection which were not raised and passed upon in the trial court. Rhodes v. State, 200 Ga. App. 193, 194 (2) (407 SE2d 442) (1991).

4. Defendant assigns error to the trial court’s refusal to give his written request to charge on the law of alibi to the jury. In denying this ground of defendant’s motion for new trial, the court reasoned that the defense of alibi as set forth in OCGA § 16-3-40 involves the impossibility of the accused’s presence at the scene of the crime at the time of its commission. Defendant complains that this is a correct statement of the law and precisely why he asked for the charge. However, the evidence was uncontradicted that the defendant was not at the motel at the time of the drug transaction or when the contraband was discovered and seized, and the State never contended that he was present. The “alibi” witnesses for the defense testified only that they had seen defendant at another motel on some unspecified dates in March. Thus, alibi was not an issue in the case and “[t]he trial court was not required to give a charge on alibi since it was not authorized by the evidence. [Cit.]” Brewton v. State, 174 Ga. App. 109 (1) (329 SE2d 270) (1985). Accord Adams v. State, 246 Ga. 119, 122 (2) (269 SE2d 11) (1980).

Decided June 26, 1992

Reconsideration denied July 13, 1992

Robert E. Surrency, for appellant.

Harry N. Gordon, District Attorney, James B. McClung, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A92A1095.
    KINGSMILL VILLAGE CONDOMINIUM ASSOCIATION, INC. v. HOMEBANC FEDERAL SAVINGS BANK.
    (420 SE2d 771)
   Birdsong, Presiding Judge.

Appellee Homebanc Federal Savings Bank (Homebanc) filed a motion to dismiss plaintiff’s complaint, pursuant to OCGA § 9-11-12 (b) (6), for failure to state a claim upon which relief could be granted. Appellant/plaintiff Kingsmill Village Condominium Association (Kingsmill) appeals the order of the trial court granting the motion and dismissing its complaint. The trial court concluded that plaintiff’s complaint, averring a quantum meruit claim for unjust enrichment under the provisions of OCGA § 9-2-7, was preempted by the provisions of OCGA § 44-3-80 precluding liability upon a foreclosing mortgagee for past-due condominium assessments arising prior to the mortgagee’s taking of title. Held:

1. “When the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim for which relief may be granted, the rules require that it be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible.” (Citations and punctuation omitted.) Morgan v. Ga. Vitrified Brick &c. Co., 196 Ga. App. 779, 780 (1) (397 SE2d 49). And, the motion “ ‘should not be granted unless the complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim.’ ” Southern Gen. Ins. Co. v. Holt, 200 Ga. App. 759, 766 (3) (409 SE2d 852).

2. OCGA § 44-3-80 (f) pertinently provides: “In the event that the holder of a first or secondary purchase money mortgage of record or any other person ácquires title to any condominium unit as a result of foreclosure of a first or secondary purchase money mortgage, such holder or other person . . . shall not be liable for nor shall the condominium unit be subject to a lien for any assessment under this Code section or under any condominium instrument chargeable to the condominium unit on account of any period prior to the acquisition of title; provided, however, that the unpaid share of an assessment or assessments shall be deemed to be common expenses collectable from all of the unit owners, including such holder or other person and his successors, successors-in-title, and assigns.”

Appellant’s complaint averred, inter alia, that certain condominium property is subject to the Georgia Condominium Act and the declaration of condominium for Kingsmill; Homebanc held security deeds or deeds to secure debt on each unit which is part of the averred property; between certain averred dates Homebanc filed a deed under power indicating they had foreclosed their security deed on each of the units; Kingsmill manages and maintains the property pursuant to the declaration and the Georgia Condominium Act; pursuant to this Act, Kingsmill is obligated to manage the averred property, insure it and provide for its maintenance; the management, insurance and maintenance provided by Kingsmill directly benefits all holders of legal interest in the property; Homebanc was aware of the delivery of and accepted the benefits from the management, insurance, and maintenance provided the property by Kingsmill; and during the periods prior to the foreclosure of the security deeds by Homebanc, appellee Homebanc’s borrowers failed to pay required assessments in an amount to be proven at trial; and, Homebanc has failed to pay any amounts for services and benefits received in connection with any of the units prior to its foreclosure of each individual condominium unit.

In its order dismissing the complaint the trial court noted the following operative facts: Homebanc made purchase money loans on a number of condominium units in Kingsmill Village. These units, pursuant to the declaration of condominium and the Georgia Condominium Act, are managed and maintained by Kingsmill. Homebanc received security deeds from the unit owners to whom it had made purchase money loans. These security deeds were foreclosed after various defaults by the unit owners. Prior to the foreclosure, the owners of the condominium failed to pay the condominium assessments on their units. Kingsmill, pursuant to the declaration of condominium, had previously made payments to third parties for insurance, property management and maintenance, which payments were to be recouped through the aforementioned assessments. It must be assumed that these payments benefited Homebanc because of its then existing security interest in the units. Before and after Homebanc foreclosed its security deeds, Kingsmill made demand on defendants as provided in the complaint. The demand related to a time period prior to Homebanc’s taking title to the units.

In its conclusions of law, the trial court after quoting pertinent parts of OCGA § 44-3-80 (f), stated: “While [Kingsmill’s] complaint does not expressly ask for past-due assessments from [Homebanc], [Kingsmill] has, in effect, done just that. Any amounts expended by [Kingsmill] must and do relate to [Kingsmill’s] obligations under the declaration. [Kingsmill’s] claim is, therefore, for amounts spent for insurance, management and maintenance costs under a ‘condominium instrument chargeable’ to the units now owned by [Homebanc]. [Kingsmill] may not sidestep the clear dictates of the aforementioned statute by merely characterizing the payments asked for as something other than condominium assessments. The expenditures, whatever called, are the type of payments covered by the statute.” Accordingly, the trial court concluded that Kingsmill’s complaint was preempted by OCGA § 44-3-80 and granted Homebanc’s motion to dismiss with prejudice.

(a) Hershiser v. Yorkshire Condo. Assn., 201 Ga. App. 185 (410 SE2d 455) is distinguishable from this case. In First Fed. Sav. &c. v. Eaglewood Court Condo. Assn., 186 Ga. App. 605, 606 (367 SE2d 876), we held OCGA § 44-3-80 (f) “unqualifiedly provide[s] that a foreclosing mortgagee shall not be liable for nor shall the condominium unit be subject to a lien ‘for any assessment’ and, such mortgagee “is clearly not liable nor is its property interest subject to a lien for any assessment.” We agree with the trial court that, nomenclature notwithstanding, the substance of Kingsmill’s averred claim is recoupment of past assessments, particularly, “for amounts spent for insurance, management and maintenance costs under a ‘condominium instrument chargeable’ to the units now owned by [Homebanc].” Accordingly, we find appellant’s claim precluded by the provisions of OCGA § 44-3-80 (f), and that the trial court did not err in granting the motion to dismiss. A party cannot do indirectly what the law does not allow to be done directly. Richmond County v. McElmurray, 223 Ga. 440, 443 (1) (156 SE2d 53).

(b) We are mindful of the proviso to OCGA § 44-3-80 (f) which obligates a foreclosing mortgagee, though not liable for any assessment, to pay a pro rata amount of that unpaid share of an assessment or assessments which becomes a part of the common expense. Compare the 5-4 majority and dissenting opinions in First Fed. Savings &c., supra. However, we do not find in the complaint any specific averment that such a claim is asserted, based on quantum meruit or other grounds, for the pro rata amount of an unpaid share of an assessment or assessments deemed to be “common expenses collectible from all of the unit owners, including such holder or other person,” within the meaning of OCGA § 44-3-80 (f). Rather, regarding assessments, the complaint avers that Homebanc’s borrowers “failed to pay required assessments” in an amount to be proven at trial but believed to be in excess of $25,000. (Emphasis supplied.)

Decided June 23, 1992

Reconsideration denied July 13, 1992.

Lipshutz, Greenblatt & King, Randall M. Lipshutz, Timothy L. Sitz, for appellant.

Hishon & Burbage, Robert H. Hishon, R. Bradley Carr, for appellee.

Nevertheless, as appellant has failed specifically either to argue or provide citation of authority in its brief that its complaint averred in whole or part a claim based on the failure of Homebanc to pay its “pro rata amount” of that unpaid share of an assessment or assessments which have become a part of the “common expenses” within the meaning of the proviso to OCGA § 44-3-80 (f), that issue has been abandoned on appeal. Court of Appeals Rule 15 (c) (2).

Appellant in essence argues that the holding of the trial court, and perforce our own opinion as we affirm the lower court’s judgment, has given a windfall to lenders to reap free benefits, such as maintenance and insurance, from homeowners’ associations while the lenders pursue foreclosure with less than prompt dispatch, thereby leading to an unjust result and unwarranted financial gain. Suffice it to say the provisions of OCGA § 44-3-80 (f) are not ambiguous, and that if such assertion is shown to be an intolerable effect of this legislation, it is a matter more appropriately for consideration and legislative correction by the General Assembly.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Carley, Presiding Judge.

text:
    A92A0148.
    TRUST COMPANY BANK v. THORNTON et al.
    (420 SE2d 817)
   Carley, Presiding Judge.

Dr. Andreas Gruentzig (Husband) and Dr. Margaret Anne Thornton Gruentzig (Wife) died simultaneously in a plane crash. Both died intestate and, at the time of their deaths, they held three joint bank accounts. Appellant-plaintiff, in its capacity as administrator of the husband’s estate, brought suit, urging that the wife had no right of survivorship in the joint accounts and that the entire proceeds thereof would, therefore, pass through the husband’s estate to his child by a previous marriage. See OCGA § 53-11-3. Appellee-defendants, in their capacities as co-administrators of the wife’s estate, answered, urging that the wife had a right of survivorship and that one-half of the proceeds of the accounts would, therefore, pass through her estate to her heirs at law. See OCGA § 53-11-4. After discovery, appellees moved for summary judgment. The trial court granted appellees’ motion and appellant appeals, urging that a genuine issue of material fact remains as to whether the wife had a right of survivorship in the accounts.

1. “Sums remaining on deposit at the death of a party to a joint account belong to the surviving party ... as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.” OCGA § 7-1-813 (a). Accordingly, it would be presumed that the wife had a right of survivorship as to the accounts, which presumption could be rebutted only by clear and convincing evidence of an intent to the contrary. Collins v. Collins, 176 Ga. App. 79 (335 SE2d 307) (1985).

Appellant relies upon the husband’s and wife’s ante-nuptial agreement as evidencing this contrary intent. The agreement specifically provided that, in the event of annulment, divorce or separation, the accounts “shall remain the separate property” of the husband. This clearly evinces the intent that, even though the accounts were to be held jointly during the marriage, they were nevertheless to be considered as the separate property of the husband should the marriage end during his lifetime. See Stokes v. Stokes, 246 Ga. 765 (273 SE2d 169) (1980). It does not, however, evince any intent that, if the marriage should not end during the lifetime of the husband, the joint accounts would not, upon his death, pass directly to the wife pursuant to a right of survivorship therein.

Insofar as dissolution of the marriage by death is concerned, the ante-nuptial agreement provided that the husband and wife mutually waived the right to apply for a year’s support and that, in the event of intestacy, the surviving spouse would “take only as much of the estate and property of the deceased spouse as he or she would take under the laws of descent and distribution. . . .” This clearly evinces the intent that, in the event of the husband’s death, his estate would not be diminished by a year’s support for the wife and that she and his daughter would each take one-half of his undiminished estate. It does not, however, evince any intent that the joint accounts were to be included in the husband’s estate and would not pass directly to the wife pursuant to a right of survivorship therein.

Accordingly, there is nothing in the ante-nuptial agreement which expressly negates the wife’s presumed right of survivorship in the accounts or is otherwise inconsistent therewith. Indeed, after execution of the ante-nuptial agreement, the husband consulted with an attorney concerning the drafting of a will and was informed in writing, on more than one occasion, that the joint accounts would pass outside of his estate and directly to the wife pursuant to her right of survivorship therein. However, the husband did not undertake to effect any changes in the accounts.

“. . . OCGA § 7-1-813 (a) allows for rebuttal of the presumption of the intent.for a joint-and-survivor account to become the sole property of the surviving joint tenant. The standard of proof is ‘clear and convincing evidence’ of a contrary intent.” Banks v. Todd, 184 Ga. App. 681, 684 (362 SE2d 410) (1987). In the instant case, there is no evidence, either “clear and convincing” or otherwise, which would authorize a finding that the husband did not intend for the wife to have a right of survivorship as to the accounts. Accordingly, the trial court correctly granted summary judgment in favor of appellees. Nowlin v. Parker, 183 Ga. App. 137 (358 SE2d 258) (1987).

2. For the year in which the deaths occurred, appellant was responsible for filing state and federal income tax returns for the husband and appellees were responsible for filing state and federal income tax returns for the wife. Appellant determined that filing joint rather than individual returns would have beneficial tax consequences for the husband’s estate. Appellees agreed to file joint returns on condition that, as the result, the wife’s estate would incur no tax liability greater than would be incurred if individual returns were filed for the wife. Despite this condition, appellant nevertheless undertook to file joint returns pursuant to a reservation of the right to make a claim against the wife’s estate “for its share of the tax liability.”

In the instant case, appellant sought alternatively to recover one-half of the income tax liability incurred on income deposited into the joint accounts by the husband and the interest earned thereon, which income and interest were reported on the joint income tax returns filed for the year in which the deaths occurred. According to appellant, it is equitable for the wife’s estate to bear one-half of the income tax liability on the husband’s income and the interest earned thereon, if, as we have held in Division 1, her estate is entitled to one-half of the proceeds of the joint accounts. The trial court granted appellees’ motion for summary judgment as to this alternative count and appellant enumerates that ruling as error.

Appellees had the option of filing individual income tax returns for the wife, rather than joint income tax returns with the husband. Appellees agreed to file jointly and to assume liability for the resulting income taxes to the same extent that taxes would otherwise be owed by the wife had individual returns been filed. Since appellees assumed liability for the income taxes which would be owed by the wife individually, the only beneficial tax consequences of filing the joint returns were those realized by the estate of the husband. By filing the joint returns, the husband’s individual income received more favorable tax treatment than would be the case if individual returns had been filed. Under these circumstances, it would not appear to be “equitable” for the estate of the husband to recover under the alternative claim. Having previously secured all of the beneficial income tax consequences for the estate of the husband, appellant now seeks to impose upon the estate of the wife one-half of the tax liability for the husband’s income. Appellant has already reaped the tax benefit of jointly-filed returns, but nevertheless seeks the additional benefit of recovering one-half of the taxes imposed on such of the husband’s income as would not have been reported on the wife’s individual income tax returns.

Decided July 13, 1992.

King & Spalding, Ralph A. Pitts, Daniel S. Sanders, Jr., for appellant.

Alston & Bird, Jay D. Bennett, Robert P. Riordan, G. Conley Ingram, for appellees.

In any event, appellant’s recovery would be barred by the terms of the ante-nuptial agreement, which provided that “[e]ach party shall hold the other party harmless from any and all assessments of any taxes imposed by all local, state and federal governments on his or her individually owned property or income.” Under this provision, the husband could not recover from the wife for taxes which had been imposed on his individual income. Appellees agreed that the estate of the wife would be liable for the taxes which would be imposed on her individual income. Accordingly, to the extent that appellant seeks a recovery against the estate of the wife, it seeks to hold the estate of the wife liable for taxes which had been imposed on the husband’s individual income. This would be violative of the ante-nuptial agreement that the husband would hold the wife harmless from taxes imposed on his individual income. By its terms, the ante-nuptial agreement is binding on the husband’s administrator. It follows that the trial court correctly granted summary judgment in favor of appellees as to appellant’s alternative count.

Judgment affirmed.

Pope and Johnson, JJ., concur.


author: Johnson, Judge.

text:
    A92A0432.
    AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, et al. v. SCHAFER et al.
    (420 SE2d 820)
   Johnson, Judge.

American Casualty Company and Continental Casualty Company d/b/a CNA Insurance Company brought this action against E. C. Schafer, individually, and Schafer Construction Company, Inc. (the “Georgia company”), alleging their failure to pay insurance premiums on two insurance policies, a workers’ compensation policy and a general liability policy.

CNA provided insurance coverage for E. C. Schafer Construction Company, Inc. (the “Louisiana company”), a business entity owned by Schafer in Louisiana. Schafer moved to Georgia in 1987 because Louisiana’s economic climate was unfavorable. The Louisiana company ceased to operate after Schafer’s relocation to Georgia. On July 24, 1987, Schafer incorporated the Georgia company in the State of Georgia.

All of the various corporations owned by Schafer were closely-held family corporations. Schafer, and his wife were the sole shareholders of both the Louisiana and Georgia corporations. He, his wife, and their sons acted as the corporate officers of both corporations.

In July 1988, CNA sent a bill to Schafer requesting payment of premiums on the policies in question from Schafer and the Georgia company. Both Schafer and his Georgia company refused to pay. CNA sued.

Schafer and the Georgia company moved for summary judgment. The Georgia company asserted that it never had a contractual relationship with CNA. Schafer asserted that he was never individually liable to CNA, and that his name was shown as an insured in error. The trial court granted summary judgment to both defendants. CNA appeals. We affirm in part and reverse in part.

1. CNA contends that the trial court erred in finding that there was no genuine issue of material fact concerning Schafer’s personal liability for premiums due on the general liability policy.

Schafer’s name appeared as an insured on the general liability policy; he contends that this was an error. The record indicates that the subject policies were issued on December 31, 1986, for a policy period of one year. On February 24, 1987, early in the policy term, the underwriters for CNA endorsed a change on the general liability insurance policy deleting Schafer as a named insured. We agree with the trial court that there exists no genuine issue of material fact regarding Schafer’s personal liability for premiums for the general liability policy. There was no error in granting summary judgment to Schafer as to the general liability policy, and we affirm.

2. CNA contends that the trial court erred in finding that there was no genuine issue of material fact related to Schafer’s personal liability for payment of premiums for the workers’ compensation policy.

Schafer was named as an insured on the workers’ compensation policy. He was never removed as he was from the general liability policy. The record contains no evidence that any request was ever sent to or received by CNA to remove Schafer as an insured from the workers’ compensation policy. CNA points to testimony in the deposition of Gene Smith, an independent insurance agent who serviced the policy, regarding Schafer being an insured on the workers’ compensation policy. Smith testified that he did not recall receiving any request, written or oral, to remove Schafer as an insured from either of the subject policies. Smith further testified that it was general company policy that when an insured is removed from one policy, that insured was removed from all other policies existing for the same person or entity.

We find that there is a genuine issue of material fact regarding whether Schafer was an insured on the workers’ compensation policy and thus liable for the payment of premiums due thereunder. The trial court erred in granting Schafer summary judgment as to the workers’ compensation policy. Therefore, we reverse as to this policy.

3. CNA contends that a genuine issue of material fact exists regarding whether the Georgia company is the “alter-ego” of the defunct Louisiana company. CNA claims that the Georgia company was formed in an attempt to escape liability incurred by the Louisiana company and therefore the corporate veil should be pierced and the separate corporate identity disregarded.

This court recently re-addressed the principles related to piercing the corporate veil in Heyde v. Xtraman, Inc., 199 Ga. App. 303 (404 SE2d 607) (1991). In Heyde, we noted that piercing the corporate veil is allowed to “remedy injustices which arise where a party has overextended his privilege in the use of a corporate, entity in order to defeat justice, perpetrate fraud, or to evade contractual or tort responsibility. . . . Sole ownership of a corporation by one person or another corporation is not a factor and neither is the fact that the sole owner uses and controls it to promote his ends. There must be evidence of abuse of the corporate form. Plaintiff must show that the defendant disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control.” (Punctuation and citations omitted.) Heyde, supra at 304; see also Derbyshire v. United Bldrs. Supplies, 194 Ga. App. 840 (392 SE2d 37) (1990); Williams Plaza v. Sedgefield Sportswear Div. &c., 164 Ga. App. 720 (297 SE2d 342) (1982).

In the instant case, Schafer and his wife were the sole shareholders, and, along with their sons were the corporate officers in both the Louisiana company and the Georgia company. Clearly, this evidence standing alone does not establish that the Georgia corporation was merely a subterfuge for the Louisiana corporation. CNA therefore attempted to gather further evidence in support of its alter ego theory through discovery. Schafer, however, did not fully comply with the discovery requests,

CNA attempted to obtain the financial records of the defunct Louisiana company from Schafer. When Schafer failed to provide these records, CNA filed a motion to compel the production of the records. In defending this motion, Schafer claimed that he stored the records in the office part of a building in Louisiana when he left that state to move to Georgia. He claimed that he visited the storage site personally after receiving the discovery requests, and discovered that the Louisiana company’s records had been moved by a tenant to the rear section of the building. According to Schafer’s affidavit, the tenant in this section of the building “apparently disposed of the records.” The “lost” records are significant documents which could serve either to overcome the presumption in favor of separate corporate entity or to show that Schafer had properly maintained the two corporations as separate entities.

Decided July 13, 1992.

Saveli & Williams, John C. Parker, Robert E. Mulholland, for appellants.

Thomas M. Stubbs, Jr., for appellees.

Whether the records were in the custody or control of Schafer is a material issue in the instant case. If it is found that Schafer caused or contributed to the loss of the subject records, a presumption would be raised against him that the evidence favored CNA’s alter ego theory. “Spoliation of evidence raises a presumption against the spoliator.” Greer v. Andrew, 138 Ga. 663, 664 (75 SE 1050) (1912); see also Georgia Power Co. v. Hinson, 179 Ga. App. 263, 266 (346 SE2d 73) (1986); Glynn Plymouth, Inc. v. Davis, 120 Ga. App. 475, 482 (170 SE2d 848) (1969).

The substance of the lost financial records is material to the allegation that the Georgia company is an alter ego of the Louisiana company because the records, if available, would shed light upon the relationship between the two companies. There is a genuine issue of material fact regarding whether Schafer is responsible for the unavailability of the records. This precludes the grant of summary judgment to the Georgia company. Accordingly, the trial court erred in granting the Georgia company’s motion for summary judgment, and we reverse.

In view of our holding above, the remaining enumerations have been rendered moot.

Judgment affirmed in part and reversed in part.

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


author: Andrews, Judge.

text:
    A92A0068, A92A0069.
    TOWER FINANCIAL SERVICES, INC. et al. v. SMITH et al.; and vice versa.
    (423 SE2d 257)
   Andrews, Judge.

In this appeal and cross-appeal, Tower Financial Services, Inc., appeals the denial of its motion for summary judgment and grant of plaintiffs’ (the Smiths) motion on two counts of a six-count complaint. The Smiths appeal summary judgment to Tower on four other counts and limitation of recoverable damages on the counts where liability was determined in their favor by summary judgment.

The following facts are undisputed. On August 16, 1985, the Smiths borrowed $8,091.50 from Tower, using as collateral their property at 164 Moreland Avenue. The promissory note was secured by an August 16, 1985 deed to secure debt on that property which was recorded in DeKalb County Deed Book 5335, p. 290. That same day, the Smiths gave Tower a deed to secure debt on their residence located at 432 East Pharr Road, recorded at DeKalb County Deed Book 5282, p. 18 as additional security.

On August 21, 1986, the Smiths borrowed $46,000 from Tower, executing a promissory note and a deed to secure debt on both the Moreland Avenue and East Pharr Road properties, which was recorded in DeKalb County Deed Book 5566, p. 95.

In October 1986, the Smiths defaulted on both loans. A Chapter 13 bankruptcy petition was filed in December 1986. The stay was lifted in order to allow foreclosure. In July 1987, Tower retained attorney Weber, third-party defendant, to foreclose on the secured properties. It was the intention of Weber and Tower to foreclose on the deed to secure the $46,000 debt, recorded at Deed Book 5566, p. 95 and listing both the Moreland Avenue and East Pharr Road properties. Instead, due to a clerical error in Weber’s office, the required foreclosure notice and advertisement referred to the first deed given to secure the $8,091.50 loan listing only the Moreland Avenue property and recorded in Deed Book 5335, p. 290. On August 4, 1987, Weber conducted the foreclosure on the DeKalb County courthouse steps and cried out a bid on behalf of Tower of $65,728.94. There were no other bids. The bid, as calculated by Tower and Weber, represented the payoff amount of $59,486.13 for both of the outstanding loans; ten percent attorney fees of $5,948.61; plus advertising charges, transfer tax, and recording fees totaling $294.

Tower executed a deed under power transferring 164 Moreland Avenue to itself and then sold that property on November 25, 1987 to a private purchaser for $20,000.

On August 6, 1987, Weber notified the Smiths that Tower had foreclosed on the East Pharr Road property and demanded possession of their home. A week later, Tower filed a dispossessory action against them, alleging that it was entitled to possession because it had foreclosed on the East Pharr Road property and the Smiths were tenants at sufferance who had failed to make rental payments. On August 26, 1987, a pro se answer was filed stating that there was no rent involved in the situation and the Smiths were going to sell rental property and refinance their home, the East Pharr Road property. Tower obtained an order that, pending resolution, rent would be paid into the registry of the court. The Smiths paid the November 1987 rent into court, although the clerk incorrectly applied it to another dispossessory pending’ between the same parties. On December 8, a writ of possession was issued to Tower although it was vacated by court order of December 14, 1987, which acknowledged the clerical error in posting. Pursuant to the December 8 writ, Tower’s agents entered the East Pharr Road residence in the Smiths’ absence and removed all the furniture and personal belongings to the curb where they were left.

After vacation of the December 8 writ, Tower moved for summary judgment in the dispossessory proceeding. It was granted on January 28, 1988, on the basis of factual assertions by Tower that it had foreclosed on the East Pharr Road property on August 4, 1987. On May 31, 1988, Tower sold the East Pharr Road property for $62,000 to a private purchaser.

During preparations for this sale, Tower became aware of problems regarding the foreclosure on the East Pharr Road property. Karen Horner, Weber’s associate, then conducted a foreclosure sale on July 5, 1988 under the deed to secure debt dated August 21, 1986, Deed Book 5566, p. 95, which listed both the Moreland Avenue and East Pharr Road properties. There being no other bids, Horner acquired the East Pharr Road property for Tower for a bid of $81,798.56, the payoff of $73,953.56 plus ten percent attorney fees and expenses. On July 7, 1988, Tower recorded its deed under power at DeKalb Deed Book 6178, p. 722. The Smiths’ bankruptcy petition was dismissed in November 1988.

The present suit was filed by the Smiths on April 16, 1990, containing four counts. The first two sought to recover the alleged surplus due from the foreclosure of, respectively, 164 Moreland Avenue and the East Pharr Road properties, based on the difference between the amount owed and paid by bid for the two properties. Counts 3 and 4 sought punitive damages and attorney fees. Weber was joined by Tower as a third-party defendant. In addition, on June 18, 1990, Tower filed a counterclaim, alleging unjust enrichment and seeking “equitable reformation” of the foreclosure proceedings.

On September 10, 1990, the Smiths filed an extraordinary motion for new trial in the dispossessory action on the basis of newly discovered evidence that they were entitled to possession at the time of the dispossession because Tower did not have title to the property through foreclosure, an intrinsic defect which did not appear on the face of the record. The motion was denied by the dispossessory court on January 15, 1991. As far as the record before us indicates, no appeal was taken from either the original issuance of the writ of possession or the denial of the motion for extraordinary new trial.

On September 25, 1990, the pretrial order was entered in the present case. On December 17, 1990, the Smiths filed an amendment to their complaint, adding as Count 5 a claim for wrongful dispossession. They also filed a motion for partial summary judgment as to the liability of Tower and W.eber for surplus from the sales. On February 1, 1991, another amendment was filed adding Count 6, seeking recovery of the fair market value of the East Pharr Road house ($66,500) plus interest. On December 12, 1990, Tower and Weber moved for summary judgment and filed a supplemental brief in support on February 13, 1991, in which it was pointed out that no order amending the pretrial order to allow the addition of Counts 5 and 6 had been entered and objecting to consideration of these claims.

The court granted the Smiths’ motion for partial summary judgment on Count 1, finding they were entitled to the surplus from the sale, finding that the legal description and the recorded deed to secure debt advertised referred only to the first deed to secure debt ($8,091.50) on the Moreland Avenue property “although Tower Financial intended to foreclose on both deeds to secure debt and against both properties.” The court allowed the following costs: foreclosure costs were advertising $208; transfer tax $65.70; recording fee $20.50; and 10 percent attorney fees of the loan amount actually foreclosed on of $801.15, not the $5,948.61 claimed. Total charges against the bid price of $65,728.94 were $9,194.85, leaving a surplus of $51,394.63 to be applied against the indebtedness which was $46,000 plus interest totalling $5,394.63, or a payoff of the two loans of all debt, interest, costs and lawful attorney fees of $60,581.48. Because Tower and Weber took $5,948.61 attorney fees improperly, this left a surplus of $5,147.40 due the Smiths on the Moreland Avenue transaction.

The court further found that, without providential cause or excusable neglect, Tower did not foreclose against the Pharr Road property and obtain title to it but did extinguish all indebtedness on it and owe the Smiths the $5,147.70 surplus. In addition, Tower and Weber then went through a foreclosure on the Pharr Road property in 1988 when Tower had no legal right to do so, having earlier satisfied the entire indebtedness, although in error. The Smiths were not entitled to the bid price of $81,798.86, but, instead, on Count 2, to the fair market value of the Pharr Road property free and clear of the $46,000 note reflected at Deed Book 6178, p. 722. (The 1988 Deed Under Power of Sale.) The court found liability, leaving the fair market valuation for the jury. The court granted Tower and Weber summary judgment on Counts 3 and 4, punitive damages and attorney fees.

Having concluded that the fair market value was the proper measure of damages on Count 2, the court did not further address Count 6.

On Count 5, wrongful dispossession, the court found this claim barred by res judicata, collateral estoppel and estoppel by judgment because Tower ultimately prevailed in the dispossessory proceedings because the Smiths were found in default in those proceedings. Those issues, therefore, could not be relitigated as long as that judgment had not been set aside pursuant to OCGA § 9-11-60 which was unavailable since three years had elapsed from the judgment of possession.

In Case No. A92A0068, Tower and Weber contend the trial court erred in denying their motion for summary judgment because 1) undisputed facts show there was no surplus because Tower simply paid itself in a “paper transaction” for each piece of property; 2) the $46,000 loan was not extinguished by the first foreclosure on the Moreland Avenue deed to secure debt; and 3) the trial court erred in granting partial summary judgment to the Smiths allowing them to recover the fair market value of the East Pharr Road property.

In Case No. A92A0069, the Smiths enumerate as error 1) the ruling that the measure of damages for wrongful foreclosure is the fair market value of the real property, not the surplus from the sale; 2) the failure to award prejudgment interest on both the sum of $5,147.40 awarded as money damages on the grant of partial summary judgment and the market value of the foreclosed realty; 3) the holding that recovery of punitive damages and attorney fees under OCGA § 13-6-11 was precluded as a matter of law; and 4) the ruling that res judicata, collateral estoppel and estoppel by judgment precluded their assertion of a wrongful eviction claim.

1. OCGA § 44-14-190 provides that money arising from the sale of mortgaged property is paid first to the person foreclosing or persons holding superior liens thereto and “when there is any surplus after paying off the mortgage and other liens, the surplus shall be paid to the mortgagor or his agent.”

Tower and Weber contend there was no surplus because Tower simply paid itself for each piece of property and, while a “clerical error” resulted in the $65,728.94 bid which was higher than expected, a surplus would exist only if Tower were enriched by the sale.

The two deeds under power prepared by Tower and recorded after the two foreclosures recite that cash was paid at each sale. Transfer taxes were therefore paid, as required by OCGA § 48-6-1. Tower instructed Weber as to the price to be bid on the first foreclosure sale and his associate, Horner, as to the amount to bid on the second.

If Tower lost money on the two sales, this was not demonstrated by any mathematical calculations contained in the record. The only evidence presented by Tower on this issue was the affidavit of Troughton, its senior vice president, which stated that the two bid amounts were “paper transactions” and “no money changed hands” and Tower did not receive any “surplus or any funds” from the property “through the foreclosure[s].” It further stated that “[t]he money Tower received from the sales of these properties was less than the amount owed to Tower by the Smiths. Tower suffered a net loss on the acquisition and resale of both the Moreland Avenue and Pharr Road tracts.”

In contrast, however, the Smiths showed that the principal amount of the first loan was $8,091.50 with a 23.5 percent interest rate; Tower paid them $6,000 from the proceeds with the balance of $2,091.50 going to Tower for discount points and other fees; that Tower received payments totalling $2,582.44 from the Smiths and $20,000 from the sale of the property after foreclosure. The trial court determined Tower was due foreclosure costs consisting of 10 percent attorney fees and other costs and taxes totalling $1,103.35. Thus, Tower paid out a total of $8,299.85 for a profit of $14,282.59 on the first foreclosure. The second loan principal was $46,000 at an interest rate of 19.90 percent. Tower retained $7,295 as discount points and document preparation fees, paying the Smiths $38,705. The Smiths made payments of $1,989 and Tower then sold the property after foreclosure for $62,000. There was a profit on the second foreclosure of $32,579.

Tower made total profit of $46,861.59 on loans totalling $54,000.

“Powers of sale in deeds of trust, mortgages, and other instruments shall be strictly construed and shall be fairly exercised.” OCGA § 23-2-114. OCGA § 44-14-162 provides that sales of real estate under power in deeds shall be advertised and conducted in the usual manner of sheriff’s sales in the county in which such real estate is located. “If a sheriff’s sale was in other respects lawful, the mere fact that he gave a bidder to whom the property had been knocked off time within which to raise the money to pay for the property would not render it a credit sale. The bidder was liable as soon as his bid was accepted, and the sheriff’s responsibility for the purchase money immediately began. The matter of indulgence was between these two, and in no way affected the rights of other persons interested.” (Emphasis supplied.) Willbanks v. Untriner, 98 Ga. 801 (5), 802 (25 SE 841) (1896).

Moreover, “[w]hereunder a power of sale in a security deed the grantee in case of default was authorized, on compliance with certain conditions, to sell the land described in the deed to the highest bidder, ‘for cash,’ and the sale was duly advertised and auctioned on that basis, the sale was not rendered invalid by a subsequent arrangement between such grantee and the highest bidder, not the result of any previous agreement or understanding, whereby a note of the latter was accepted in lieu of cash, but the grantee would be accountable for the note as cash in settling with the debtor. [Cits.]” (Emphasis supplied.) Adcock v. Berry, 194 Ga. 243 (1) (21 SE2d 605) (1942). Dorsey v. North American Life &c., 217 Ga. 650, 653 (3) (123 SE2d 919) (1962); see Champs-Elysses, Inc. v. Fulton Fed. &c. Assn., 247 Ga. 127, 129 (2) (274 SE2d 482) (1981).

Having placed themselves in this position, Tower and its lawyers are, as described by the trial judge, “the authors of their own misfortune.” Now portraying the incidents as an otherwise undefined “paper transaction” does not detract from the facts as portrayed by the face of the documents involved.

The cases relied upon by Tower and Weber in their argument contesting the grant of summary judgment to the Smiths on Counts 1 and 2 do not involve the situation present here, where the first foreclosure bid has satisfied the debt on a second loan. Palmer v. Mitchell County Fed. &c., 189 Ga. App. 646 (377 SE2d 4) (1988), is inapposite since it involved entitlement to insurance proceeds as to which there was specific language in the mortgage. Vaughn & Co. v. Saul, 143 Ga. App. 74, 77 (237 SE2d 622) (1977), held that where there are separate notes secured by different parcels of realty and a first foreclosure does not satisfy all the indebtedness, foreclosure on one parcel does not preclude foreclosure on the other.

There was no error in the denial of summary judgment to Tower and Weber and the grant of partial summary judgment to the Smiths on these claims.

2. The Smiths first enumerate as error the court’s conclusion that the measure of damages for wrongful foreclosure is the fair market value of the property foreclosed upon instead of the “surplus” which they argue would have to be the full $81,798.86 bid at the foreclosure on the Pharr Road property.

The Smiths rely solely upon Holland v. Sterling, 214 Ga. 583 (105 SE2d 894) (1958). That case dealt with the issue of whether an attorney retained to conduct foreclosure for Central Builders Supply, assignee of the grantee bank in a deed to secure debt executed by Sterling, could file a petition for interpleader. The deed from Sterling to the bank provided that, after the principal, interest and other amounts due were paid, the grantee “shall pay any overplus to the grantor, or to the heirs or assigns of grantor. . . .” In upholding the grant of demurrer and finding that the attorney could not bring an interpleader action, the Supreme Court stated that “the assignee was legally bound under the terms of the contract to pay this overplus to [Sterling], in the absence of proper proceedings by one or more of the alleged claimants to the fund to prevent such payment.” Id. at 585.

In Stone v. Davis, 242 Ga. 17 (247 SE2d 756) (1978), a similar provision was relied upon in an attempt to defeat interpleader. The court there found that after the 1966 enactment of the Civil Practice Act, OCGA § 9-11-22 broadened and liberalized the interpleader remedy and allowed such an action by the holder of surplus funds after foreclosure. Further, the court held that “[t]he language in Holland [supra] to the effect that a party foreclosing on a security deed is bound by a clause in the deed requiring that any surplus funds be paid to the grantor ‘in the absence of proper proceedings by one or more of the alleged claimants to the fund to prevent such payment,’ is disapproved.” The court pointed out that to require such payment as a matter of law could allow for fraud against creditors.

Therefore, that case is not authority for the conclusion argued by the Smiths that the measure of damages for wrongful foreclosure is the bid price.

“There exists a statutory duty upon a mortgagee to exercise fairly and in good faith the power of sale in a deed to secure debt. OCGA § 23-2-114. Although arising from a contractual right, breach of this duty is a tort compensable at law. See, e.g., Curl v. First Federal Savings & Loan Assn., 243 Ga. 842, 843-844 (2) (257 SE2d 264) (1979) (affirmed the award of damages for mental pain and aggravation and punitive damages in an action for wrongful foreclosure); Decatur Investments Co. v. McWilliams, 162 Ga. App. 181, 182 (2) (290 SE2d 526) (1982) (affirmed an award of punitive damages in a wrongful foreclosure action); . . .” Clark v. West, 196 Ga. App. 456, 457 (395 SE2d 884) (1990).

In such a tort, recovery of damages is allowed to the holder of the equity of redemption. Kennedy v. Gwinnett Comm. Bank, 155 Ga. App. 327, 328-329 (1) (270 SE2d 867) (1980); see Curl, supra at 843 (2).

There was no error. At the time of the 1987 dispossession, there had been no foreclosure on the East Pharr Road property. In 1988, when Tower attempted to foreclose, the indebtedness secured by the deed to secure debt had been paid by the proceeds of the Moreland Avenue foreclosure and was, therefore, no longer in default.

“ ‘A security deed is automatically released and satisfied by full payment of the secured indebtedness, and title passes by operation of law back to the grantor or to those claiming under him. The title which thus revests upon payment is in no way affected by liens, encumbrances, or rights which would otherwise attach by virtue of title having been vested in the grantee.’ [Cits.] This statement tracks [OCGA § 44-14-60] which provides that such deeds pass title to the grantee only ‘until the debt or debts which said conveyance was made to secure shall be fully paid.’ ” Commercial Bank v. Stafford, 149 Ga. App. 736, 737 (256 SE2d 69) (1979). “ ‘Payment in full of the debt renders the trust deed functus officio, and ipso facto extinguishes the power of sale.’ ” Thurman v. Lee, 181 Ga. 408, 410 (1) (182 SE 609) (1935).

Because Tower sold the property to a good faith purchaser who had no knowledge that the foreclosure sale was invalid, the Smiths could not redeem their equity. OCGA § 23-1-20; Mathis v. Blanks, 212 Ga. 226 (2) (91 SE2d 509) (1956). “[W]here the debt has been paid and the record does not indicate payment, a purchaser without notice would acquire title.” Burgess v. Simmons, 207 Ga. 291, 297 (2) (61 SE2d 410) (1950).

3. The Smiths further contend that the court should have granted summary judgment as to the market value of the East Pharr Road property based on the valuation of that property submitted by Tower to the bankruptcy court in the Smiths’ case there.

“ ‘As a general rule the price brought at a public sale, after proper and lawful advertisement, is prima facie the market value of the property sold, absent anything to indicate there was chilling of the bidding, fraud, or the like adversely affecting the sale.’ [Cits.]” Wachovia Mtg. Co. v. Moore, 138 Ga. App. 101 (225 SE2d 460) (1976). However, “value on the date of sale is a factual question to be resolved by the trior of facts.” Thompson v. Maslia, 127 Ga. App. 758, 764 (4) (195 SE2d 238) (1972). Curl, supra at 844 (2); see also Wheeler v. Coastal Bank, 182 Ga. App. 112 (1) (354 SE2d 694) (1987).

4. The Smiths argue that prejudgment interest should have been awarded on the market value of the property and the surplus awarded on the Moreland Avenue property.

OCGA § 7-4-15 provides that “[a]ll liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them. ...” A liquidated debt is “an amount certain and fixed, either by the act and agreement of the parties or by operation of law; a sum which cannot be changed by the proof; it is so much or nothing. . . .” Nisbet v. Lawson, 1 Ga. 275, 287 (1846). The market value of the house was not such a liquidated amount. While the surplus calculated by the trial court might be accepted as a liquidated amount since there was no dispute about the amount bid at each foreclosure sale or the amounts owing on both notes, we find no reversible error in the court’s refusal to do so.

Even where damages are not liquidated, prejudgment interest may be awarded by the jury under OCGA § 13-6-13 in tort or breach of contract actions, either separately or “not as such but as part of the damages.” Braner v. Southern Trust &c., 255 Ga. 117, 119 (1) (335 SE2d 547) (1985). Therefore, the Smiths may seek these damages at trial.

5. In their fourth enumeration, the Smiths contend the court erred in granting partial summary judgment to Tower and Weber on Count 3 of their complaint, punitive damages. The Smiths argue that the court’s holding that there was a failure to show that Tower acted either intentionally or with such conscious indifference to consequences as to be constructively wanton was improper because no specific ground on this issue was contained in the motion for summary judgment and they were unable to address it.

Under OCGA § 9-11-56 (c), summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of any material fact and that the moving party is entitled to a judgment as a matter of law. . . .” In ruling on a Rule 56 motion, the court is obliged to take into account the entire setting of the case. Minor v. E. F. Hutton & Co., 200 Ga. App. 645, 646 (2) (409 SE2d 262) (1991). In the present case, doing so allows us to conclude the trial court was correct that, while there was evidence to support a finding that Tower and Weber conducted the foreclosure in a careless and negligent manner, there was inadequate evidence to support a punitive damage award. Id. The court was further correct in concluding that the motion for summary judgment as to all claims against Tower and Weber encompassed the punitive damages count.

“ ‘[N]egligence, even gross negligence, is inadequate to support a punitive damage award.’ Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (3b) (365 SE2d 827) (1988). Under OCGA § 51-12-5.1 (b), which is applicable ... , it remains the rule that ‘ “ ‘(s)omething more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. . . . There is general agreement that, because it lacks this element, mere negligence is not enough. . . .’ ” ’ ” (Citations omitted.) Ivey v. Golden Key Realty, 200 Ga. App. 545 (1) (408 SE2d 811) (1991).

Here, construing the evidence of record most favorably for the Smiths, the acts committed by Tower and Weber were, at most, negligent breaches of the duties owed as grantee under the deeds to secure debt and the trial court correctly granted summary judgment as to their lack of liability for punitive damages. Id.

6. As to the court’s grant of summary judgment to Tower and Weber on the issue of OCGA § 13-6-11 expenses of litigation, there was no error.

Decided July 8, 1992

Reconsideration denied July 21, 1992

Freeman & Hawkins, T. Ryan Mock, Jr., Kevin W. Pendley, Spix, Krupp & Reece, Spencer J. Krupp, for appellants.

The court below denied them on the basis that the rights of the parties in the case were unclear and in fact presented issues of first impression. We agree.

The attorney fees claim made in Count 4 is premised solely upon causing the plaintiffs “unnecessary trouble and expense.” “ ‘When bad faith is not an issue and the only asserted basis for a recovery of attorney fees is . . . the causing of unnecessary trouble and expense, there is not “any evidence” to support an award pursuant to OCGA § 13-6-11 . . . if a bona fide controversy . . . exists between the parties.’ [Cits.] As a bona fide controversy did exist, the trial court did not err in awarding [summary judgment].” Read v. Benedict, 200 Ga. App. 4, 6 (1) (406 SE2d 488) (1991). See Glen Restaurant v. West, 173 Ga. App. 204, 205 (325 SE2d 781) (1984).

7. Finally, the Smiths argue that the court erred in finding their claim for wrongful dispossession in Count 5 barred by res judicata, collateral estoppel, and estoppel by judgment because Tower eventually prevailed by their default in the dispossessory action. The Smiths argue they had no such claim until December 14, 1987 when the eviction occurred, almost four months after their answer was filed in the dispossessory case.

We need not reach the merits of this argument, however, because Count 5 was added to the litigation December 17, 1990, three months after entry of the pretrial order in the case. Tower and Weber objected to this amendment and to consideration of it because of this. No leave of court or consent of the opposite parties was obtained.

“Under OCGA § 9-11-15 (a), ‘once a pretrial order has been entered, a party may not amend without leave of court or consent of the opposite party . . . (and) “such order when entered controls the subsequent course of the action, unless modified at trial to prevent manifest injustice.” ’ Gaul v. Kennedy, 246 Ga. 290, 291 (1) (271 SE2d 196); OCGA § 9-11-16 (b).” Ostroff v. Coyner, 187 Ga. App. 109, 113 (2) (369 SE2d 298) (1988).

A decision right for any reason will not be set aside. Dorminy v. Dorminy, 242 Ga. 326 (249 SE2d 49) (1978).

Judgment affirmed in Case Nos. A92A0068 and A92A0069.

Birdsong, P. J., and Beasley, J., concur.

Robert P. Wilson, Gary C. Harris, for appellees.

       There is no dispute between the parties that the intent of Tower and Weber was to foreclose only under the later deed which secured the $46,000 debt, listing both Moreland Avenue and Pharr Road, not the earlier $8,091 deed listing only Moreland Avenue.


author: Johnson, Judge!

text:
    A92A0581.
    A92A0582.
    CITY OF ATLANTA v. ATLANTIC REALTY COMPANY et al. ATLANTIC REALTY COMPANY et al. v. CITY OF ATLANTA et al.
    (421 SE2d 113)
   Johnson, Judge!

The City of Atlanta entered into a joint venture agreement with Atlantic Realty Company to improve the sidewalks and streets adjacent to the Hurt Building. The Hurt Building is owned by Atlantic.

The city agreed to oversee the project, retain a contractor, and ensure that the contractor procured and maintained public liability and property insurance covering the project. The city retained the R. A. Banks & Company, Inc., as the contractor for the project. In compliance with the joint venture agreement, the contract between the city and Banks required that Banks acquire public liability and property insurance policies naming Atlantic as an insured.

During the project, the interior of the building was damaged as a result of a ruptured steam valve. Atlantic brought suit in superior court against the city and Banks alleging that they failed to properly maintain an excavation pit allowing runoff rainwater to come in contact with an exposed steam pipe. The rainwater allegedly condensed the steam in the pipe creating what is referred to in the industry as a “water hammer.” Ultimately, the water hammer caused a steam valve to rupture releasing steam into the interior of the building and causing substantial damage. Atlantic also contended that the city breached its contractual obligation requiring Banks to maintain insurance throughout the life of the project.

The city filed a cross-claim against Banks claiming indemnification pursuant to their contract. After a jury trial, a verdict was returned in favor of Atlantic and against the city alone. The city made motions for directed verdict, j.n.o.v., and for a new trial. The trial court denied the motions. Atlantic made a motion for j.n.o.v. against Banks and a motion for a new trial on the issue of damages. The trial court denied Atlantic’s motions.

The city appeals from the judgment entered on the verdict and the denial of its motions for j.n.o.v. and a new trial. Atlantic cross-appeals from the court’s denial of its motion for j.n.o.v. against Banks and from the court’s denial of its motion for a new trial regarding damages.

Case No. A92A0581

1. The city contends that the trial court erred in denying the city’s motions for directed verdict, j.n.o.v., and for a new trial because Atlantic failed to provide the city with the ante litem notice required under OCGA § 36-33-5. The city contends that the notice sent by Atlantic did not comply with the statute because it was sent to a city claims investigator, instead of the City Attorney or the Mayor. This enumeration is without merit.

Uncontroverted evidence appears in the record that Robert Gunderson, a claims adjuster for Atlantic, contacted Henry Murff, the Assistant City Attorney in charge of the claims division for the city, regarding the building damage. Murff told Gunderson to send the ante litem notice to him at his office address and Gunderson complied with Murff’s request. Consequently, we find that the city has waived its claim that the subject ante litem notice did not comply with OCGA § 36-33-5 because it was sent to a city claims investigator, rather than the City Attorney or the Mayor.

Even if the city had not waived its contention that the ante litem notice sent by Gunderson did not comply with the statute, we find that the subject notice substantially complied with OCGA § 36-33-5 and was therefore sufficient. OCGA § 36-33-5 (b) provides, “Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of injury, as nearly as practicable, and the negligence which caused the injury. No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.”

It is well-settled that substantial compliance satisfies the requirements of OCGA § 36-33-5. Jones v. City of Austell, 166 Ga. App. 808, 809 (305 SE2d 653) (1983). This Court recently ruled that there is “no requirement in the notice statute that ante litem notice must be presented in the same manner as service of process.” Burton v. DeKalb County, 202 Ga. App. 676, 678 (415 SE2d 647) (1992). The court further noted that “ante litem notice is sufficient if presented to the city attorney or any department or official of the municipal government.” (Emphasis supplied.) Id. We find that the city was provided with sufficient notice of Atlantic’s claim in that the letter sent from Atlantic substantially complied with OCGA § 36-33-5 (b) and was sent to the department of the claims investigator of the municipal government as directed by the Assistant City Attorney.

2. The city contends that the trial court erred in failing to find that the city was immune from liability because it was performing a governmental rather than a ministerial function.

The doctrine of sovereign immunity is available to a municipality against claims based on negligence. The defense is not applicable to claims against a municipality which are contractual in nature. See generally National Distrib. Co. v. Dept. of Transp., 157 Ga. App. 789, 792 (278 SE2d 648) (1981). In the instant case, Atlantic sought to recover from the city and Banks under both negligence and breach of contract theories. Because the jury returned a general verdict, it is unclear upon which theory the verdict was based. Even assuming, arguendo, that the verdict in this case was based upon the negligence theory, we nonetheless find that the defense of sovereign immunity was not available to the city given the facts in this case.

OCGA § 36-33-1 (b) provides that municipalities “shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskillful performance of their ministerial duties, they shall be liable.”

A municipality’s function of maintaining its streets and sidewalks in a safe condition has been held to be ministerial in nature. See City of Macon v. Harrison, 98 Ga. App. 769, 771 (106 SE2d 833) (1958); see also Mayor &c. of Savannah v. Johns, 87 Ga. App. 719, 723 (75 SE2d 342) (1953). The record indicates that the city and Banks were in the process of improving the street and sidewalk area through reconstruction. The minutes of their initial coordination meeting on April 25, 1984, establish an agreement between Atlantic and the city that “the City would let the construction contract and manage same. ...” (Emphasis supplied.) The city’s management of the project included hiring the contractor, Banks, and placing the city’s on-site construction inspector on the property to actively oversee the construction work on a daily basis. Consequently, we find that the city was performing a ministerial function in improving the streets and sidewalks. Therefore, the defense of sovereign immunity was not available to the city.

3. The city contends that Atlantic made an improper third party beneficiary argument to the jury. The city asserts that Atlantic argued to the jury that the city, rather than Banks, was liable for breaching the contract between the city and Banks. Atlantic disputes this claim.

“When an appellant seeks to prove error in the trial proceedings, the burden is on him to produce a transcript of the allegedly erroneous matter.” (Punctuation and citations omitted.) Powell v. State, 198 Ga. App. 509, 512 (402 SE2d 108) (1991). Although a transcript of the trial was included in the record, the parties’ closing arguments were not included in the transcript. Therefore, there is nothing before us to review.

4. The city contends that the trial court erred in failing to find that any liability found against the city should be shared by Atlantic because they were joint venturers.

A joint venturer may sue another joint venturer for breach of contract. King v. Fryer, 107 Ga. App. 715, 716 (131 SE2d 203) (1963). “A member of a joint venture owes the duty to the other members of the venture to cooperate with them and to exercise reasonable care and skill to effectuate the purposes for which all have joined, and the duty not to disrupt or abandon the venture for the purpose of obtaining benefits for himself and not to do any act which obstructs the carrying on of its business to a successful conclusion; and he can become liable to his associates for the damages sustained by them through breach of the contract.” (Emphasis supplied.) Id. Accordingly, the trial court did not err in finding that Atlantic was not jointly liable for the claim arising out of the breach of the joint venture agreement which required that the city ensure that Banks maintain its insurance.

5. In its final enumeration of error, the city contends that the trial court erred in failing to find that Atlantic failed to prove damages as required by law.

The measure of damages for injury to a building is the cost of restoring the building to its original condition. Getz Svcs. v. Perloe, 173 Ga. App. 532, 535 (327 SE2d 761) (1985). Atlantic produced evidence at trial of the cost to repair the damage done to the equipment affixed to the building through various receipts and testimony of witnesses. We find, as the trial court did, that Atlantic’s damages were correctly proven as required by law.

Case No. A92A0582

1. Atlantic contends that the trial court erred in failing to allow it to present a videotape to the jury as a demonstrative aid to show the jurors how damage occurred in the building and to show the uncommon nature of the damaged equipment.

The admissibility of evidence rests largely within the sound discretion of the trial court. American Aluminum Prods. Co. v. Binswanger Glass Co., 194 Ga. App. 703, 709 (391 SE2d 688) (1990). “It is the duty of the party asserting error to show it by the record, and assertions of evidence in briefs cannot satisfy this duty.” (Punctuation and citations omitted.) Denny v. Nutt, 189 Ga. App. 387, 389 (375 SE2d 878) (1988). Since the subject videotape is not included in the record for our review, we cannot determine whether the trial court abused its discretion in disallowing the videotape to be shown to the jury. Therefore, there is no question before this court for consideration.

2. Atlantic contends that the trial court erred in admitting evidence regarding payments Atlantic received from its insurers. Atlantic asserts that this evidence of insurance indemnification resulted in an inadequate award of damages from the jury.

Prior to July 1, 1987, evidence of collateral sources was inadmissible in Georgia. Subsequently, OCGA § 51-12-1 (b) was enacted allowing evidence of collateral sources to be admitted at trial. However, the statute was to be given prospective effect only and therefore did not apply where the cause of action arose prior to July 1, 1987, the effective date of the statute, even where the case was tried after the statute’s effective date. Polito v. Holland, 258 Ga. 54 (365 SE2d 273) (1988). In the instant case, evidence of the insurance indemnification provided to Atlantic was inadmissible because the cause of action arose on August 17, 1985, almost two years prior to the effective date of OCGA § 51-12-1 (b). Accordingly, the trial court erred by admitting evidence of insurance monies provided Atlantic by its private insurance carriers, and in denying Atlantic’s motion for a new trial on that ground. The liability of the city having been affirmed in Case No. A92A0581 above, we reverse and remand to the trial court for a new trial on the issue of damages. See generally Cassidy v. Wilson, 196 Ga. App. 6, 9 (395 SE2d 291) (1990).

3. Atlantic contends that the trial court erred in denying its motion for j.n.o.v. against Banks on the breach of contract claim. ■

In paragraph 16 of a section of the construction contract entitled “Special Conditions,” Atlantic was named as an insured on all property damage insurance policies required by the contract, as noted. As a result of its being named as an insured in the contract, Atlantic contends that it is a third party beneficiary. We agree.

“The beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.” OCGA § 9-2-20 (b). A third party has standing to enforce a contract under OCGA § 9-2-20, if it clearly appears from the contract that it was intended for his benefit; the mere fact that he would benefit from performance of the contract is insufficient. Backus v. Chilivis, 236 Ga. 500, 502 (224 SE2d 370) (1976).

It is clear on the face of the contract that the city and Banks intended Atlantic to be the beneficiary of property insurance coverage by their inclusion of paragraph 16 as a condition of the contract. It appearing that Atlantic is an intended third party beneficiary to that paragraph 16 of the construction contract, Atlantic has the requisite standing to sue Banks, the promisor of that provision, for any breach of that provision, pursuant to OCGA § 9-2-20 (b).

At the trial of this case, Banks’ owner, R. A. Banks admitted that Banks was required, under the terms of the construction contract with the city, to acquire and maintain property damage insurance protecting Atlantic from,any property losses resulting from work done on the project. He further admitted that he allowed the policy to lapse and, as a result of the lapse, Banks did not have the property insurance coverage in effect for Atlantic on August 17, 1985, the date of the subject occurrence.

A motion for judgment notwithstanding the verdict can be sustained where there is no conflict in the evidence regarding any material issue, and the evidence introduced shall demand a particular verdict. Wick v. Barnes, 187 Ga. App. 854, 856 (371 SE2d 443) (1988). As there is no conflict in the evidence regarding Banks’ breach of the .contract with the city, Atlantic, as an intended third party beneficiary, has standing to sue Banks for breach of the subject provision. Therefore, Atlantic is entitled to j.n.o.v. against Banks on the breach of contract claim. Accordingly, the trial court erred in denying Atlantic’s motion for j.n.o.v. as to this issue and we therefore reverse. Banks’ liability having been determined, the new trial on the issue of damages shall include Banks as a named defendant in addition to the city.

Judgment in Case No. A92A0581 is affirmed; judgment in Case No. A92A0582 is affirmed in part and reversed in part.

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

Decided July 13, 1992.

Jo Avery Crowder, Michael V. Coleman, David D. Blum, Marva Jones Brooks, Robin S. Phillips, for City of Atlanta.

McPhail & Marmur, Jon B. McPhail, for Atlantic Realty & Great American Insurance Co.

R. A. Banks & Company, pro se.

       The Supreme Court of Georgia declared OCGA § 51-12-1 (b) unconstitutional in Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991) thereby returning Georgia to the rule that collateral'source evidence is not admissible at trial. However, see Grissom v. Gleason, 262 Ga. 374 (418 SE2d 27) (1992), which disapproves of the equal protection analysis in Denton, supra, and may suggest that the Court, if given another opportunity to specifically address the collateral source issue, would reach the opposite result.


author: Pope, Judge.

text:
    A92A0822.
    JACKSON v. THE STATE.
    (421 SE2d 119)
   Pope, Judge.

Anthony P. Jackson was indicted on four counts of burglary. He pled guilty to Count 1 of breaking into an office building and stealing money from a candy machine. Count 2 charged him with breaking into a community service center and taking money from a soft drink machine. Counts 3 and 4 accused him of breaking into the laundry room of an apartment complex on two occasions and taking money from coin operated washers and dryers. Prior to trial the State notified defendant it planned to submit similar transaction evidence of a misdemeanor theft by taking conviction in 1987. In that case, Jackson pled guilty to taking coins from the same machines at the same apartment complex laundromat which formed the basis for Counts 3 and 4 of his indictment. Jackson filed a motion for severance seeking separate trials on each count, or alternatively to allow Counts 3 and 4 to be tried separately from Counts 1 and 2. The motions were denied. At trial, a motion for directed verdict of acquittal was granted on Counts 3 and 4 but denied as to Count 2. Jackson was found guilty on Count 2. He appeals his conviction on that count, contending there was insufficient evidence to prove his guilt. He also alleges the trial court erred in refusing to grant his motion to sever and by allowing the similar transaction into evidence over his objection.

1. In determining whether the evidence was sufficient for the trial court to deny a motion for directed verdict as to Count 2, it must be examined in the light most favorable to the verdict. Marshall v. State, 199 Ga. App. 678 (1) (a) (405 SE2d 893) (1991). “ ‘The direction of a verdict of acquittal is proper only where “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal.” (Cits.) If there is any evidence of guilt, it is for the jury, rather than the court, to decide whether the evidence is sufficient to sustain a conviction. (Cit.)’ [Cit.]” Hall v. State, 200 Ga. App. 244, 245 (407 SE2d 470) (1991).

The State presented evidence that over the weekend of June 23, 1990, a window was broken in the back of the community service center and a drink machine was broken into. The community center was located two blocks away from the laundry room in the apartment complex, which had been burglarized twice before on May 14 and June 16. The light above the food and drink machines had been broken and there was blood on the glass. When defendant was arrested as a suspect three days later he had a fresh cut on the knuckle of his right hand. A blood enzyme test was conducted which showed that the blood type found on the glass was the same as that of the defendant. The State presented a witness from the State Crime Lab who testified that approximately 1.4 percent of the general population, or 14 people in 1,000, possessed that blood profile.

A witness who worked at a neighborhood convenience store testified that on three occasions, one of them a week to two weeks after the June 23 burglary, defendant had asked him to exchange currency for his coins. The first time defendant had about $40 in quarters. On the other occasions, the store clerk did not accept the change. After the third occasion, the store clerk notified the police of his suspicions that the defendant was involved with the coin burglaries in the neighborhood. The State also introduced in evidence the defendant’s prior conviction for theft by taking coins from the laundry room of the same apartment complex.

This evidence showed a common plan to burglarize places within the neighborhood in which coin operated machines were located. Defendant acted alone and operated similarly in each case. “This evidence was sufficient to allow a jury to conclude that the State had carried its burden of negating all other reasonable hypotheses and to authorize appellant’s conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). [Cit.]” Ross v. State, 199 Ga. App. 767, 768 (1) (406 SE2d 101) (1991). Accord Mays v. State, 198 Ga. App. 402 (3) (401 SE2d 597) (1991).

2. Defendant contends that severance is mandatory if the defendant moves therefor when two or more offenses are joined only because they are of the same or similar character. “However, where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the sound discretion of the trial judge since the facts in each case are likely to be unique. In determining whether severance is necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense, the court should consider whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense. Where the modus operand! of the perpetrator is so strikingly alike that it demonstrates and designates the defendant as the common perpetrator, the offenses may be joined, subject to the right of the defendant to a severance in the interests of justice.” (Citations and punctuation omitted.) Woolfolk v. State, 202 Ga. App. 59, 61 (5) (413 SE2d 242) (1991). Accord Carroll v. State, 199 Ga. App. 8 (403 SE2d 875) (1991).

Decided July 13, 1992.

H. Bradford Morris, Jr., for appellant.

C. Andrew Fuller, District Attorney, Leonard C. Parks, Jr., Assistant District Attorney, for appellee.

Since defendant pled guilty to Count 1 and a directed verdict of acquittal was granted as to Counts 3 and 4, there was no showing of a confusing number of offenses or complexity of the evidence, or of harm or prejudice which might have been avoided by severing the counts for trial, to authorize a finding of abuse of discretion. Cf. Williams v. State, 178 Ga. App. 581 (2) (344 SE2d 247) (1986). The separate instances met the requirements of similar offenses and thus the trial court did not err in allowing them to be tried together. Smith v. State, 199 Ga. App. 410 (1) (405 SE2d 107) (1991).

3. Nor does the admission of the similar transaction evidence demand reversal, as asserted. “ ‘(T)he (rule allowing the admission of similar transaction evidence) is usually applied more liberally with “evidence of prior attempts by the accused to commit the same crime upon the same victim of the offense for which he stands charged. . . .” (Cits.)’ ” Parcell v. State, 198 Ga. App. 439 (1) (401 SE2d 628) (1991). Accord Emory v. State, 260 Ga. 814 (3) (b) (400 SE2d 625) (1991). The evidence here showed that defendant had previously burglarized the coin operated machines in the laundry room of the apartment complex, and was properly admitted in connection with the two counts of burglary of the same laundry room. However, after the trial judge directed a verdict on these two counts, he instructed the jury at length not to consider any evidence concerning the other charges during their deliberations on Count 2. Defendant neither objected that the jury .instructions did not cure the problem nor sought any other remedy from the court; therefore, he is deemed to have acquiesced in the instructions given as adequate to redress any error. “ ‘No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal.’ [Cit.]” Boatright v. State, 192 Ga. App. 112, 116 (5) (385 SE2d 298) (1989). We find no grounds for reversal.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A0435.
    TOM BARROW COMPANY v. ST. PAUL FIRE & MARINE INSURANCE COMPANY et al.
    (421 SE2d 85)
   Birdsong, Presiding Judge.

The question in this appeal concerns the application of “the Little Miller Act” (OCGA § 36-82-100 et seq.) to a materialman that furnished materials to a second tier subcontractor on a public works project. The record shows that the materialman, Tom Barrow Company, sued Ra-Lin & Associates, Inc., a general contractor, and St. Paul Fire & Marine Insurance Company, Ra-Lin’s bonding company, under OCGA § 36-82-104 (b) on the payment bond required by OCGA §§ 13-10-1 and 36-82-101 for the amount owed, interest, and attorney fees, and that the defendants were granted summary judgment. Tom Barrow Company asserts that the effect of the trial court’s grant of summary judgment was to hold the Little Miller Act inapplicable to such materialman.

The record shows Cobb County contracted with Ra-Lin as general contractor for the project; Ra-Lin subcontracted part of the work to North Georgia Equipment Company; North Georgia subcontracted with Worsham Sheetmetal Company, and Tom Barrow Company furnished materials to Worsham which were used in the project. The record also shows that although Ra-Lin paid North Georgia and North Georgia paid Worsham, Worsham went bankrupt without paying Tom Barrow Company.

Although the trial court did not state the reasons for its ruling, appellees’ motion for summary judgment asserted that Tom Barrow Company was not protected by the bond because the Little Miller Act did not apply to a materialman to a second tier subcontractor. Held:

1. OCGA § 13-10-1 (a) (2) (A) provides, in part: “A payment bond with good and sufficient surety or sureties, payable to the state, county, municipal corporation, or public board or body thereof for which the work is to be done, and for the use and protection of all subcontractors and all persons supplying labor, materials, machinery, and equipment in the prosecution of the work provided for in the contract.” (Emphasis supplied.) Even though appellees acknowledge the Little Miller Act’s coverage is not expressly limited as they contend, they argue that because our act is patterned on the Federal Miller Act we should limit the coverage of the Little Miller Act to the general contractor’s immediate subcontractors and their immediate suppliers in the same manner as the federal courts have limited the coverage of the Federal Miller Act.

This argument, however, is contrary to the interpretation given this state’s Little Miller Act. As we stated in our recent decision in Sunderland v. Vertex Assoc., 199 Ga. App. 278, 280-281 (404 SE2d 574), “[i]n Home Indem. Co. v. Battey &c. Co., 109 Ga. App. 322 (136 SE2d 193) (1964), this court considered whether federal cases interpreting the parallel Miller Act, 40 USC §§ 270a and 270b, to exclude claims by second and third tier subcontractors were persuasive under our statute. In that case, Battey provided machinery, materials and equipment to Rome Plumbing, a subcontractor of National Heating & Air Conditioning, which was a subcontractor of Gann Construction Company, the prime contractor. The United States Supreme Court in Clifford F. MacEvoy Co. v. United States, 322 U. S. 102 (64 SC 890, 88 LE 1163) (1944) based upon language identical to that in OCGA § 36-82-104 (b), ‘by applying (this) proviso reached the conclusion that the word “subcontractor” in the Miller Act refers only to one having a direct relationship to the main contractor and that those supplying materials to the subcontractor not having such relationship have no right to sue on the bond. . . . (T)he Georgia statute does, as the Miller Act does not, have a section defining the word “subcontractor” as used in the Georgia statute. (OCGA § 36-82-100 (2)) reads in part as follows: “The term ‘subcontractor’ includes but is not limited to those having privity of contract with the prime contractor.” (Emphasis ours.) The lack of such a definition in the Miller Act resulted in the construction placed thereon by the Supreme Court of the United States. Therefore, the Supreme Court decision construing the Miller Act is not only not persuasive authority but is no authority at all as applicable to the Georgia statute insofar as it holds that a subcontractor is limited to those having privity with the main contractor. The Georgia statute is plain and explicit. (Battey) is such a person who, as according to the statute, has a right to sue upon the payment bond.’ (Indention omitted.) Id. at 325.

“Similarly, Tonn & Blank, Inc. v. D. M. Asphalt, 187 Ga. App. 272 (1) (370 SE2d 30) (1988) dealt with the more restrictive lien statute and its similar definition of subcontractor as ‘means, but is not limited to, subcontractors having privity of contract with the prime contractor,’ and held that ‘(i)n the absence of a clearer definition, we construe the word “subcontractor” to mean one who, pursuant to a contract with the prime contractor or in a direct chain of contracts leading to the prime contractor, performed services or procured another to perform services in furtherance of the goals of the prime contractor.’ ” Id. Therefore, the federal and state cases cited by Ra-Lin and St. Paul relying on interpretation of the Federal Miller Act are not authority.

Moreover, Ra-Lin’s and St. Paul’s argument that Tom Barrow is not covered by the bond is without merit. “[B]ecause the bond is a statutory one, its terms can be no narrower than those of the statute. [Cit.]” Id.

Accordingly, the trial court erred by granting summary judgment to St. Paul and Ra-Lin and, since the parties agree there are no issues of material fact, the trial court also erred by denying Tom Barrow’s motion for summary judgment.

Decided June 26, 1992

Reconsideration denied July 14, 1992

Gibson & Deal, John W. Gibson, James B. Deal, James P. P. Dirr, for appellant.

Smith & Diment, Dana G. Diment, James J. Hopkins, for appellees.

2. Further, since St. Paul and Ra-Lin admitted the principal amount owed Tom Barrow, the trial court erred by denying Tom Barrow’s motion for summary judgment for prejudgment interest under OCGA § 7-4-16. Compare Sunderland v. Vertex Assoc., supra. Moreover, since Tom Barrow Company specifically pleaded a claim for its attorney fees and expenses of litigation under OCGA § 13-6-11 and supported that claim in its motion for summary judgment and since appellees’ position was contrary to well-established law in this state, it is entitled also to recover on that claim.

3. Accordingly, the trial court is directed to enter summary judgment as established by Tom Barrow Company in its motion for summary judgment.

Judgment reversed and the case remanded to the trial court with direction.

Beasley and Andrews, JJ., concur.


text:
    A92A0591.
    FORD v. THE STATE.
    (421 SE2d 294)
   Andrews, Judge.

Ford was convicted for violating the Georgia Controlled Substances Act and appeals.

1. In her first enumeration of error, Ford contends that the trial court erred in ruling that her statements were voluntary and admissible because she was not properly notified of her constitutional rights pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). Pretermitting the issue of whether Ford properly challenged the voluntariness of the statements at trial, we find this enumeration without merit.

The court conducted a hearing regarding the statements and testimony from the investigating officer was that pursuant to receiving a search warrant, he went to Ford’s house. He entered, introduced himself and stated his purpose, and asked if the defendant had any cocaine that was hers in the house. She admitted that she did and produced the drug, whereupon the officer immediately advised her of her rights, whereupon she made more statements. Defendant was arrested several months later.

Decided June 16, 1992

Reconsideration dismissed July 14, 1992.

Richard L. Dickson, J. Michael Mullís, for appellant.

Harry N. Gordon, District Attorney, James B. McClung, Assistant District Attorney, for appellee.

Appellant’s arguments that her statements and actions prior to the giving of the Miranda warnings were inadmissible because the officer’s inquiry exceeded the scope of initial investigation and because she was in custody at the time are meritless. “Threshold inquiries of the type to which appellant apparently objects do not fall within the custodial interrogation protections afforded by the Miranda rule. [Cits.]” Birge v. State, 143 Ga. App. 632, 637 (8) (239 SE2d 395) (1977); see also Riviera v. State, 190 Ga. App. 823 (1) (380 SE2d 353) (1989); Scoggins v. State, 191 Ga. App. 643 (382 SE2d 695) (1989). “A person is not entitled to Miranda warnings as a matter of right, even though that person is a suspect, unless that person had been taken into custody or has been deprived of freedom of action in another significant way. Although the focus of the investigation may be on defendant, [s]he must also be in a custodial situation for Miranda to apply.” (Punctuation and citations omitted.) Brinson v. State, 191 Ga. App. 151, 152 (4) (381 SE2d 292) (1989); compare State v. Nelson, 261 Ga. 246 (1) (404 SE2d 112) (1991). Such a situation was missing here and there was no error in the trial court’s decision.

2. In her second enumeration of error, Ford contends that the evidence was insufficient to satisfy the requirements of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Our review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which she was convicted.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.