author: Pope, Judge. Beasley, Judge,

text:
    A90A0584.
    WEEMS v. THE STATE.
    (395 SE2d 863)
   Pope, Judge.

Defendant Anthony Lamar Weems was indicted for murder, felony murder and possession of a firearm by a convicted felon (OCGA § 16-11-131) and was convicted of voluntary manslaughter. He appeals, challenging the sufficiency of the evidence, effectiveness of counsel and the introduction of certain photographs of the victim and crime scene which he alleges were duplicative. Held:

1. Defendant asserts the general grounds. We have examined the evidence pursuant to the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) and find that the evidence was not only sufficient, it was overwhelming. Consequently, this enumeration of error is without merit.

2. Defendant also contends that the trial court erred in admitting, over objection at trial, certain photographs of the victim and the crime scene which he contends were duplicative and prejudicial. Pretermitting the question of whether the photographs here were in fact repetitious and cumulative, “we find that it was not error to admit the photos in this case because they are not particularly gruesome and are relevant as illustrating the cause of death and the crime scene.” Strickland v. State, 250 Ga. 624, 626 (300 SE2d 156) (1983). “[P]hotographs which are material and relevant to any issue are admissible even though they may be duplicative and inflame the jury. Goss v. State, 255 Ga. 678 (1) (341 SE2d 448) (1986) and cits.” Burgan v. State, 258 Ga. 512, 514 (3) (371 SE2d 854) (1988).

3. Although not raised in the trial court, defendant also asserts that his trial counsel was ineffective. The record shows appellate counsel did not represent defendant at trial or on the motion for new trial and that trial counsel was granted permission to withdraw from this case on March 15, 1990, two days before the notice of appeal was filed. “As the Supreme Court has recently held, ‘(i)n Smith [v. State, 255 Ga. 654 (341 SE2d 5) (1986)], we established the practice of remanding to the trial court the claim of ineffective assistance, when such claim was raised only on appeal. The advantage of this procedure is that the claim can be promptly resolved by the judge who presided over the trial as opposed to having it resolved by a habeas court somewhere down the road.’ Lloyd v. State, 258 Ga. 645 (fn. 1) (373 SE2d 10) (1988). See also Lloyd v. State, 257 Ga. 108 (355 SE2d 423) (1987).” Hutton v. State, 192 Ga. App. 239, 241 (5) (384 SE2d 446) (1989). It is not true, however, that every case which asserts for the first time on appeal an issue as to the effectiveness of counsel must be remanded to the trial court. Rather, our Supreme Court, through a series of cases, has fashioned a procedure whereby the appellate court, in deciding whether it should remand the case, should look to whether the issue of ineffectiveness was raised “at the earliest practicable moment.” Thompson v. State, 257 Ga. 386, 388 (2) (359 SE2d 664) (1987). “In Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986), trial counsel filed the motion for new trial, and a new attorney represented defendant on appeal. Appellate counsel filed an amended motion for new trial but did not raise the issue of ineffectiveness of trial counsel until the direct appeal. We remanded the case to the trial court for a hearing on the effectiveness of trial counsel. In Thompson v. State, [supra], appellate counsel filed an amended motion for new trial but did not raise the issue of ineffectiveness until the direct appeal. The case was remanded under the Smith rationale, but this court held that henceforth the claim of ineffectiveness would be deemed waived if appellate counsel filed an amended motion for new trial without raising the issue of ineffectiveness.

“In Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988), we held that henceforth the claim of ineffectiveness would be deemed waived if appellate counsel filed an amended motion for new trial and raised the issue of ineffectiveness but failed to request an evidentiary hearing. In the present case, appellate counsel did not represent [defendant] at trial or at the motion for new trial. Therefore, the requirement of Thompson that the issue of ineffectiveness must be raised at the time of the amended motion for new trial by a new attorney who files a motion for new trial does not preclude the issue here. However, we must consider the requirement of Dawson that an evidentiary hearing must be requested at the time the issue is raised. In Dawson we decided that the new attorney who files an amended motion for new trial raising the issue of ineffectiveness of trial counsel must also request an evidentiary hearing in the trial court at that time. Here, [defendant’s] new attorney did not file an amended motion for new trial. Rather, he filed an appeal from the denial of the motion for new trial filed by trial counsel. In this appeal [defendant] raises the issue of ineffectiveness of trial counsel for the first time. He has not yet filed any request for an evidentiary hearing. . . .

“We hold that the requirement of Dawson v. State, supra, that an evidentiary hearing must be requested at the time of an amended motion for new trial does not apply to a case where the appellate counsel did not participate in the motion for new trial, and the issue of ineffectiveness of counsel is raised for the first time on appeal. Although [defendant] should have by now filed a request for an evidentiary hearing, he is not barred from proceeding with this claim on this account. Since the claim was only raised on appeal, there was no opportunity for a hearing before the trial court; it is not unreasonable that the case be remanded for a hearing [and appropriate findings concerning the issue of ineffective assistance of counsel] at this point.” Johnson v. State, 259 Ga. 428, 430 (383 SE2d 115) (1989). Accord Meders v. State, 260 Ga. 49 (10) (389 SE2d 320) (1990); Hutton v. State, supra at (5). But see Bell v. State, 259 Ga. 272 (379 SE2d 519) (1989); Simpson v. State, 250 Ga. 365 (2) (297 SE2d 288) (1982); White v. State, 192 Ga. App. 703 (386 SE2d 56) (1989); Huff v. State, 191 Ga. App. 476 (2) (382 SE2d 183) (1989).

Judgment affirmed and case remanded with direction.

Carley, C. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier and Cooper, JJ., concur. Deen, P. J., and Beasley, J., concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

I concur in Divisions 1 and 2. I agree with Division 3 to the extent that the complaint was not raised below, but the case should not be remanded because the issue is foreclosed in this proceeding. White v. State, 192 Ga. App. 703 (386 SE2d 56) (1989); Huff v. State, 191 Ga. App. 476 (382 SE2d 183) (1989).

A motion for new trial had been filed by trial counsel, but the record does not show who represented defendant at a hearing on it, if one was held. The motion was denied on February 15. Although trial counsel’s written motion to withdraw was filed and granted on March 15, appellate counsel must have been appointed on or before March 3. There is an order filed that date to release to him a copy of the transcript “for the purpose of handling an appeal.”

There still remained at least fourteen days from counsel’s appointment before a notice of appeal was due. Appellate counsel filed the notice on that last day, without raising by extraordinary motion for new trial the claim of ineffective assistance of counsel. This could have been done. OCGA § 5-5-41 (b). There was opportunity to do so and thus to present the issue to the trial court.

If there was not sufficient time to investigate to determine whether such an issue was viable, an extension for the filing of the notice of appeal for an additional thirty days could have been sought. OCGA § 5-6-39 (a) (1). If the extraordinary motion was not ruled on within this extended time, requiring the appeal to proceed on grounds, if any, other than ineffective assistance due to the strictures of OCGA § 5-6-38 (a), a separate appeal would later lie by application from an adverse ruling on the extraordinary motion. OCGA § 5-6-35 (a) (7).

But at least the issue would have been properly raised in the trial court at the first instance, as is required for review. For “it is well settled that this court will not consider issues and grounds for objection which were not raised and passed upon in the trial court. [Cits.]” Jefferson v. State, 157 Ga. App. 324, 326 (2) (277 SE2d 317) (1981); Shy v. State, 190 Ga. App. 370, 371 (2) (378 SE2d 920) (1989). This applies to constitutional rights, which is the basis of the claim “error” here. See, e.g., Ortiz v. State, 189 Ga. App. 428 (375 SE2d 891) (1988), involving the voluntariness of a consent to search. It is peculiar to have an issue never raised in the trial court heard and decided there on remand without even so much as a motion to lay the issue before that court.

It is true that this proper procedure yields a potential of two appeals, depending on the timing of an adverse ruling on the extraordinary motion, but the majority’s holding automatically results in two appeals in every instance of an adverse ruling on the ineffective assistance issue. There would be at least some cases where the trial court ruled on the extraordinary motion within the time, or extended time, for the filing of the notice of appeal. In these cases, all issues would be reviewable by the appellate court at one time by a consolidation of the two appeals in the event the denial of the extraordinary motion warranted full discretionary review.

This achieves finality at the earliest practicable moment, as intended. It also precludes the necessity of full review of the ineffectiveness claim when it is meritless. Of utmost importance is that if the trial court agreed that counsel was ineffective, preparation for the new trial and the new trial itself would occur much sooner.

The process provided by Georgia law has the efficacy of obtaining a directly sought, rather than circuitously mandated, ruling on the issue by the trial court. It also avoids the inevitable remand, which by its nature is burdened with delays and the unnecessary attention of the appellate court. The process was available to defendant, and he does not claim or show that appellate counsel could not utilize it. The majority’s ruling allows the case, and any with the issue similarly postured, to be shuttled back and forth between two overburdened courts and thus institutionalizing a procedure relatively unknown to Georgia law, one which brings with it cumbersome delay and piecemeal case management.

Johnson v. State, 259 Ga. 428 (383 SE2d 115) (1989), and Meders v. State, 260 Ga. 49 (389 SE2d 320) (1990), relied on by the majority, do not require otherwise. In the first place, remand is only a “practice” adopted in limited circumstances by the Supreme Court to avoid later habeas corpus petitions on the same issue. Lloyd v. State, 258 Ga. 645, fn. 1 (373 SE2d 1) (1988). In the second place, the Court was proceeding on the State’s request for remand, which is absent here. Thirdly, the Court did not mention the availability of the extraordinary motion procedure in concluding that “there was no opportunity” for airing of the issue at the trial court. Also, Meders was a death penalty case and so was governed in addition by the comprehensive Unified Appeal Procedure rules.

Decided June 25, 1990

Rehearing denied July 16, 1990 — Cert, applied for.

Michael A. Zoffmann, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, David Wright, Rebecca A. Keel, Assistant District Attorneys, for appellee.

The underlying philosophy espoused by the Supreme Court is to require the issue to be raised “at the earliest practicable moment” or be waived. See Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988), quoting from Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986). The issue in this direct appeal from the conviction should be deemed as presenting nothing for review. As stated in Huff, supra at 477, “a challenge to the effectiveness of trial counsel will not be considered on appeal where it has not been raised in the trial court in such a manner as to enable the court to rule on it.” And as held in Huff, the conviction should be affirmed, not remanded.

I am authorized to state that Presiding Judge Deen joins in this opinion.

       The sole complaint about counsel’s assistance is that he introduced the notion that defendant displayed a knife during the fight, destroying the theory of self-defense in this case where defendant killed a person with a gun borrowed from a bystander.


source: Caselaw Access Project

author: Carley, Chief Judge.

license: Public Domain

text:
    A90A0668.
    SIGNET BANK/VIRGINIA v. TILLIS.
    (396 SE2d 54)
   Carley, Chief Judge.

Appellant-plaintiff, a Virginia-based bank; extended an offer to issue appellee-defendant a credit card by mailing a pre-approved application form to appellee’s address in Georgia. When an acceptance of its offer bearing appellee’s purported signature was mailed to and received by it in Virginia, appellant issued the credit card in appellee’s name and mailed it to his Georgia address. The credit card was thereafter used in Georgia and some payments were mailed to appellant in Virginia. When payments ceased, however, appellant brought suit against appellee in Virginia and obtained a default judgment against him. Appellant then initiated this action against appellee in Georgia, seeking to domesticate the Virginia default judgment. Appellee answered and raised, among his other defenses, the Virginia court’s lack of personal jurisdiction over him. Appellant subsequently moved for summary judgment, supporting its motion by pleading and proving the Virginia judgment and the Virginia Long Arm Statute under which personal jurisdiction over appellee in Virginia was ostensibly predicated. In opposition to appellant’s motion, appellee submitted his affidavit wherein he swore that the signature purporting to signify the acceptance of appellant’s offer to issue him a credit card was not his and that he had neither received nor used the credit card that appellant had issued in his name.

On this evidence, the trial court not only denied appellant’s motion for summary judgment, but, on its own motion, also granted summary judgment in favor of appellee. The trial court based its ruling on the following: “In the original Virginia action on the contract against the Georgia resident defendant, the Virginia court lacked personal jurisdiction over the defendant under the rules enunciated in Kendrick v. Parker, 258 Ga. 210 [(367 SE2d 544)] (1988). The Virginia judgment which plaintiff is seeking to domesticate in the instant case appears to be an unreasonable abuse of the Virginia Long Arm Statute. Therefore, the Virginia judgment is void and cannot be domesticated.” It is from this order that appellant brings the instant appeal.

Appellant urges that the trial court erred in granting, on its own motion, summary judgment in favor of appellee based upon the affidavit that appellee had filed in opposition to appellant’s motion for summary judgment. See Thompson v. Hurt, 159 Ga. App. 656, 657 (3) (284 SE2d 671) (1981). However, the trial court apparently concluded that appellee was entitled to summary judgment, not on the basis of any facts that had been set forth in appellee’s affidavit, but on the basis that, as a matter of law, the Virginia court nevertheless lacked personal jurisdiction over appellee even under the factual circumstances upon which appellant was relying to establish the existence of such jurisdiction. If the Virginia court lacked personal jurisdiction over appellee even though he had accepted appellant’s offer to extend him credit, then certainly no genuine issue of material fact remained and the trial court correctly granted summary judgment notwithstanding appellee’s failure to have moved for summary judgment in his favor. “[S]ummary judgment can be granted to a non-moving party provided that the grant is proper in all other respects. [Cit.]” (Emphasis supplied.) Golston v. Garigan, 245 Ga. 450, 451 (1) (265 SE2d 590) (1980).

“ ‘The judgment of a court of one State, when sued on, pleaded, or introduced in evidence in another State, is entitled to receive the same full faith, credit, and respect that is accorded to it in the State where rendered. If it is valid and conclusive there, it is so in all other States. [Cits.]’ [Cit.] However, neither the Full Faith and Credit Clause of the United States Constitution ‘nor any act of Congress passed in pursuance thereof, forbids or prevents an inquiry into the jurisdiction of the court by which the judgment offered in evidence in another State was rendered.’ [Cit.]” Masters v. ESR Corp., 150 Ga. App. 658, 659 (1) (258 SE2d 224) (1979). “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’ [Cit.]. . . . ‘Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, . . . the defendant [must have] “purposefully directed” his activities at residents of the forum, [cit.], and the litigation [must result] from alleged injuries that ‘arise out of or relate to’ those activities. [Cit.]’ [Cit.]” First United Bank of Miss. v. First Nat. Bank of Atlanta, 255 Ga. 505, 506-507 (340 SE2d 597) (1986). “[T]he constitutional touchstone [is] whether the defendant purposefully established ‘minimum contacts’ in the forum State . . . ‘[that is, whether] the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’ [Cit.]” Burger King Corp. v. Rudzewicz, 471 U. S. 462, 474 (105 SC 2174, 85 LE2d 528) (1985). “[A]n individual’s contract with an out-of-state party alone [cannot] automatically establish sufficient minimum contacts in the other party’s home forum. . . .” (Emphasis in original.) Burger King Corp. v. Rudzewicz, supra at 478. See also Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892, 893 (1) (380 SE2d 303) (1989). “[P]rior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing . . . must be evaluated in determining whether the defendant has purposefully established minimum contacts within the forum.” Burger King Corp. v. Rudzewicz, supra at 479.

Under the circumstances relied upon by appellant, there were no prior negotiations between itself and appellee. Appellee never went to Virginia to solicit an extension of credit from appellant. To the contrary, appellant mailed its solicitation of appellee’s acceptance of its offer to him in Georgia. Appellee and appellant never met in either Georgia or Virginia to discuss terms. Appellee simply responded to appellant’s unsolicited offer by returning the application to Virginia through the mail. Thereafter, appellee and appellant never met in connection with the extension of credit. Indeed, it was contemplated that they should never meet so long as appellee performed by sending payments from Georgia and appellant performed by extending credit from Virginia. It is undisputed that the credit card was never used in Virginia. Thus, it is appellant’s own election to extend consumer credit to a non-Virginia resident that constitutes the sole contact that appellee has ever allegedly had with Virginia. Such contact based upon the mere unilateral and fortuitous consequence of appellant’s place of residence is insufficient to support a finding that appellee has purposefully established such meaningful contacts and connections with Virginia that he should reasonably be expected to appear there to defend an action based upon his alleged failure to perform his part of the contract in Georgia. See Burger King Corp. v. Rudzewicz, supra at 478. See also A. A. A., Inc. v. Lindberg, 172 Ga. App. 753 (324 SE2d 480) (1984). Compare Gust v. Flint, 257 Ga. 129 (356 SE2d 513) (1987). “Where the nonresident defendant, like the purchaser from a ‘mail order house,’ is truly the passive party, courts have ordinarily refused to recognize jurisdiction^] [Cits.]” Money-Line, Inc. v. Cunningham, 437 NYS2d 816, 819 [4] (N.Y. App. Div. 1981).

Decided July 3, 1990

Rehearing denied July 16, 1990 — Cert, applied for.

David G. Crockett, D. Ruth Primm, for appellant.

Finn, Cunningham & Hurtt, R. Scott Cunningham, for appellee.

Since, even under the circumstances alleged by appellant, such contact as appellee had with Virginia was a fortuitous consequence of appellant’s place of residence and neither purposeful, meaningful, nor substantial, there were no “ ‘minimum contacts’. . ., a prerequisite to the establishment of extraterritorial jurisdiction” by the forum State. Berry v. Jeff Hunt Machinery Co., 148 Ga. App. 35, 36 (3) (250 SE2d 813) (1978). In the absence of personal jurisdiction over the appellee, the Virginia default judgment against him was void. Capital Bank of Miami v. Levy, 151 Ga. App. 819, 820 (2) (261 SE2d 722) (1979). The trial court correctly refused to domesticate the void judgment and properly granted summary judgment in favor of appellee. Davis Mud & Chemical v. Pilgrim, 165 Ga. App. 738, 739 (2) (302 SE2d 423) (1983).

Judgment affirmed.

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


author: Beasley, Judge. Deen, Presiding Judge,

text:
    A90A0692.
    GOSS & GOSS DEVELOPMENT COMPANY v. FIRST UNION NATIONAL BANK OF GEORGIA.
    (396 SE2d 19)
   Beasley, Judge.

The bank lent Goss & Goss Development company $50,000 to develop a residential subdivision. The note was renewed twice, and after the partnership used all the funds it asked for additional financing. The bank denied further extension of credit, the loan went into default, and the bank began foreclosure proceedings. The day before the scheduled first foreclosure advertisement, Goss & Goss paid the accrued interest arrearage and a renewal note was signed. The foreclosure was stopped, but one advertisement was published.

When the last note came due and it was neither renewed nor paid, the bank sued in Bibb County against Mary Ann Goss and Tommy Goss for the loan amount due; partner Johnny Goss was not sued because he had filed a bankruptcy petition. This suit was voluntarily dismissed without prejudice in May 1989.

Mary Ann Goss and Johnny Goss sued the bank in Fulton County in March 1988, for failing to lend more than $50,000 as agreed and also for wrongfully initiating foreclosure proceedings which misrepresented plaintiffs’ credit and was a breach of good faith and the bank’s fiduciary duty. The bank moved to dismiss. The court found that Goss & Goss’s case should have been brought as a counterclaim to the bank’s action in Bibb County and that, since Johnny Goss was not a party to that action, he would have a new cause of action against the bank. In reviewing this cause of action, the court held that the complaint failed to state a claim upon which relief could be granted to Johnny Goss. Goss & Goss, Mary Ann Goss, and Johnny Goss appeal.

1. The term “transaction or occurrence” as used in OCGA § 9-11-13 (a) has been given a broad and realistic interpretation by the court. P & J Truck Lines v. Canal Ins,, 148 Ga. App. 3 (251 SE2d 72) (1978). The test as to whether a claim is a compulsory counterclaim is “ ‘whether there is any logical relationship between the claim advanced by the plaintiff and the claim asserted by the defendant.’ [Cit.]” Myers v. United Svcs. Auto. Assn., 130 Ga. App. 357, 360 (203 SE2d 304) (1978); P & J Truck Lines v. Canal Ins., supra. Failure to litigate compulsory counterclaims subjects the offending party to dismissal when the claim is brought in a second action. P & J Truck Lines v. Canal Ins., supra.

All claims alleged in Fulton County relate to the extension of credit, the subject matter of the Bibb County suit. The claims of Goss & Goss and Mary Ann Goss were properly dismissed in Fulton County.

2. The complaint contains various causes of action, all of which relate to the bank’s actions concerning the defaulted loan. The allegations do not set up a separate cause of action for Johnny Goss apart from the causes of the partnership, although he alleges some individual damages resulting from the alleged wrongs against the partnership. For the suit to survive as to him, there must be a relationship between him and the tortfeasor or contract-breacher independent of that derived as a partner. See Harrell v. Gomez, 174 Ga. App. 8, 9 (2) (329 SE2d 302) (1985); Borders v. Wright, 141 Ga. App. 878, 879 (1) (234 SE2d 708) (1977); Walker v. Sheehan, 80 Ga. App. 606, 612 (6) (56 SE2d 628) (1949). No such relationship is alleged. The trial court properly dismissed Johnny Goss’ claims.

Decided June 25, 1990

Rehearing denied July 16, 1990 — Cert, applied for.

Theron M. Moore, Bradley W. Bledsoe, for appellant.

McKenney, Jordan & Carey, G, McGregor Jordan, Jr., for appellee.

3. Uniform Superior Court Rule 6.3 provides that all motions shall be decided without oral hearing except that hearings on motions for summary judgment shall be held if a timely written request is filed. As oral argument was not requested, there was no error.

Judgment affirmed.

Carley, C. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope and Cooper, JJ., concur. Deen, P. J., concurs in part and dissents in part.

Deen, Presiding Judge,

concurring in part and dissenting in part.

I respectfully concur as to Divisions 1 and 3, but dissent as to Division 2.

While a partner does not have a personal right of action for wrongs done to the partnership, 59A AmJur2d, Partnership, § 701, see also OCGA § 9-11-17 (Parties Plaintiff and Defendant), a partner does have a cause of action for personal wrongs done to him. In his pleadings Johnny Goss alleges certain personal wrongs were done to him. Accordingly, the trial court erred in dismissing Johnny Goss’ claims.


author: McMurray, Presiding Judge.

text:
    A90A0762.
    BULLOCH COUNTY HOSPITAL AUTHORITY v. PARKER.
    (396 SE2d 37)
   McMurray, Presiding Judge.

Plaintiff Parker was a patient recovering from surgery at a hospital operated by defendant Bulloch County Hospital Authority when she fell while taking a shower and was injured. The complaint alleges that plaintiff was assisted into the shower after advising defendant’s employee that she was dizzy, and that said employee left plaintiff alone in the shower, at which time plaintiff fell. When deposed, plaintiff testified that she had not become dizzy until after she was in the shower and had not told defendant’s employee that she did not feel like getting a shower. After she was left alone in the shower, plaintiff became dizzy, “got a blindness,” and fell. Plaintiff testified that she did not slip, that the dizziness was the sole reason for her fall.

Decided July 2, 1990

Rehearing denied July 16, 1990.

Newton, Smith, Durden & Kaufold, Wilson R. Smith, for appellant.

Grady K. Reddick, Evelyn S. Hubbard, for appellee.

Defendant’s motion for summary judgment was partially granted to the extent that plaintiff’s claim was predicated on a theory of malpractice. Insofar as plaintiff’s action asserted a claim for personal injuries sustained by an invitee upon the owner’s premises, the defendant’s motion for summary judgment was denied. We granted defendant’s application for interlocutory review of the partial denial of its motion for summary judgment. Held:

Plaintiff’s complaint states a claim for malpractice, but cannot be reasonably viewed as raising any claim based on the condition of the premises. Defendant having prevailed on the sole claim raised by plaintiff’s complaint is entitled to summary judgment. Yorgin v. Adler, 193 Ga. App. 24 (387 SE2d 14).

Even if plaintiff had raised a claim based on the condition of the premises, defendant would still be entitled to summary judgment as the uncontroverted testimony of the plaintiff shows that her dizziness was the sole cause of her fall. This evidence negates any supposition that a defect of the premises contributed to plaintiff’s injury. “Before any negligence, even if proven, can be actionable, that negligence must be the proximate cause of the injuries sued upon. St. Paul Fire &c. Ins. Co. v. Davidson, 148 Ga. App. 82, 83, 84 (251 SE2d 32) (1978).” Whitt v. Walker County, 176 Ga. App. 643, 645, 646 (337 SE2d 425).

Nor is this a simple negligence case. Expert testimony would be required to establish whether permitting the plaintiff to shower without continuous assistance was negligence. Chafin v. Wesley Homes, 186 Ga. App. 403 (1) (367 SE2d 236). Compare Self v. Executive Committee &c. of Ga., 245 Ga. 548 (266 SE2d 168) and Piedmont Hosp. v. Milton, 189 Ga. App. 563, 564 (377 SE2d 198).

Judgment reversed.

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


author: Pope, Judge. Deen, Presiding Judge,

text:
    A90A0456.
    BARNETTE v. PEACE et al.
    (395 SE2d 916)
   Pope, Judge.

In this fraud case, the jury returned a verdict in favor of appellees Tommy and Judy Peace against the estate of Oland J. Barnette in the amount of $50,000. On appeal, appellant Barnette argues three enumerations of error, each relating to the measure of damages.

In 1982, while they were engaged to be married, the Peaces agreed to buy a house from Barnette at a cost of $38,500. Barnette and Tommy Peace walked the property, with Barnette showing Peace the boundary lines. The house was an unfinished shell and Barnette provided owner-financing. During the next six years, the Peaces paid their mortgage and expended time and money finishing the house. In January 1988, the Peaces attempted to refinance the mortgage debt with a bank. However, they were turned down when a survey revealed that the porch of the house encroached upon the Department of Transportation right-of-way by 2.38 feet. This was not as the line was represented to Tommy Peace by Barnette. Peace testified that the line as represented to him was some forty feet beyond the porch. Don Mahaffey, a real estate appraiser, testified at trial that without the encroachment the property was worth $63,000. With the encroachment, he testified that the property was worth between zero and $63,000. He stated that the difficulty in setting a value was because a buyer would not be able to get financing with the encroachment and 99 percent of buyers needed financing in order to buy. In support of their alternative theory of damages, the Peaces also adduced testimony that the house could be moved back so that the encroachment would be erased at a cost of $27,550. In addition, the trial court permitted the Peaces to testify that they had spent $18,231.57 to finish the house.

In enumeration 3, Barnette argues that the court should not have allowed evidence of the value of the improvements because there was no evidence that the Peaces were deprived of those improvements. In enumeration 2, Barnette argues that any evidence of improvements was irrelevant and immaterial to the issue of damage in a fraud case because such damage is the difference between the property as represented and its actual value or the reasonable cost to correct the defect. In enumeration 1, Barnette argues that the verdict is contrary to the evidence. Held:

We affirm. Although on appeal the Peaces argue that Barnette waived any objection to the evidence of the improvements, our review of the record shows that the issue was raised and the trial judge ruled that he would allow the evidence to be admitted. Therefore, we will address the merits. As argued by Barnette, generally [t]he measure of damages in an action for fraud and deceit is the actual loss sustained, and if the contract is one of purchase and sale the actual damages are the difference between the value of the thing sold at the time of delivery and what its value would have been if the representations made had been true.” Orkin Exterminating Co. v. Bryan, 163 Ga. App. 804, 805 (294 SE2d 683) (1982). An alternative method of showing the difference in value is to prove the reasonable cost of correcting the defect. Windsor Forest, Inc. v. Rocker, 115 Ga. App. 317 (2) (154 SE2d 627) (1967).

However, in the case of James v. Elliott, 44 Ga. 237 (1871), the Supreme Court recognized an exception to the general rule: “[W]hen, by the fraud of a vendor, the vendee has been led into expenses, he may recover compensation in damages for the actual injury he has sustained.” Id. at 241. In James, the buyer of the property had been deceived into thinking that a strip of land containing clay suitable for brickmaking was included in the lot sold. The buyer expended money to set up a brickmaking operation before he discovered the deception. The court held that the buyer was entitled to recover those expenses.

In the present case, the situation is similar. As did the plaintiff in James, supra, the Peaces expended money to make the property suitable for their purposes, in this case use as a home, before they discovered the defect (the encroachment). The plaintiff in James could have used the brickmaking improvements, but only at the additional trouble of purchasing the clay he thought he had already obtained. So, too, in the present case, the Peaces could continue to use the improvements they made, but only at the cost of not being able to realize the value of those improvements by being able to sell their property or to use the value of the equity in the home. The jury was presented with two alternative methods of computing damage. The first was the value-deprivation method set out above. The second was the cost of moving the house to remove the defect, the encroachment. Obviously, the jury selected the first method. After hearing evidence that the landline was forty feet closer than was represented and the evidence that the Peaces were deprived of the value of the house because of the encroachment, the jury was authorized to find that the alternative method of computing damages by correcting the defect (here, the moving of the house) would not fully compensate the Peaces.

Barnette argues and the dissent agrees that the rule in James is inapplicable here because the Peaces have not been deprived of the improvements. We disagree. As established by the testimony of the two bank officers who appeared at trial and the testimony of the real estate appraiser, the condition of the property with thé encroachment virtually precludes any potential buyer from purchasing the property. The Peaces have lost the ability to alienate the property. One can also infer from the evidence that the Peaces would also be denied the use of the equity by virtue of an inability to acquire a home equity loan. The Peaces have thus been deprived of the “fruits” of their labor and expenditures, the value of those improvements as realized by a sale or through a home equity loan. “On appeal, the evidence must be construed to uphold the verdict which has the approval of the trial judge and if there is any evidence to support a verdict it must be affirmed. [Cit.]” C & S Nat. Bank v. Haskins, 254 Ga. 131, 136 (327 SE2d 192) (1985). Thus, the jury was authorized to conclude, as it apparently did, that the cost of moving the house, alone, would not compensate the Peaces for their loss.

It follows from the rule set out in James, supra, and from the discussion above, that the trial court did not err in allowing evidence of the costs of the improvements. It also follows that we hold that the verdict was not contrary to the evidence.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Birdsong, Beasley and Cooper, JJ., concur. Carley, C. J., Deen, P. J., and Sognier, J., dissent.

Deen, Presiding Judge,

dissenting.

In James v. Elliott, 44 Ga. 237, 242 (1871), the Supreme Court held that “where fraud upon the part of a vendor induces the vendee to lay out labor, time and expense, of the fruits of which he is deprived, his injury is to be estimated by the amount of damage he has actually suffered.” The majority opinion correctly recognizes this as an exception to the general measures of damage, i.e., showing the difference between the value of the thing sold at the time of delivery and what its value would have been had the seller’s representation about it been true, or showing the reasonable cost of correcting the defect, but misapplies that exception to the instant case.

One of the elements of this exceptional rule is that the vendee must be deprived of the “fruits” of the “labor, time and expense.” In James v. Elliott, the vendee expended money to set up a brickmaking operation before discovering the deception about the inclusion of clay-bearing land in the lot he had purchased. Without the clay-bearing land, the brickmaking operation was of no benefit to the vendee; he was deprived of the “fruits” of his labor and expenses.

In the instant case, however, the appellees expended $18,231.57 to finish the shell into a home, in which they still reside. They have in no way been deprived of the benefit of those expenditures. Under these circumstances, recovery for the $18,231.57 was unauthorized and must be stricken from the judgment; otherwise, we must reverse. I must dissent from the majority opinion’s affirmance of the judgment which includes an award for those expenses for home improvements.

I am authorized to state that Chief Judge Carley and Judge Sognier join in this dissent.

Decided July 16, 1990.

Archer & Howell, Shepherd L. Howell, Charles Crawford, for appellant.

David C. Keever, for appellees.


author: Beasley, Judge.

text:
    A90A0610.
    NORO-NORTH PLAZA HOLDINGS, N.V. v. RARE COINS OF GEORGIA, INC.
    (395 SE2d 918)
   Beasley, Judge.

Noro-North Plaza Holdings, N. V., lessor, (Noro-North) was granted an application to appeal the denial of its motion to set aside default judgment in Rare Coin’s suit for damages to premises, inventory, and business as a result of flooding. Noro-North’s motion was premised on failure of service and resulting lack of personal jurisdiction and on alleged mistake or fraud of Rare Coins relating to failure of service.

Noro-North owned only the shopping center in which Rare Coins was located. Nine other properties in the Atlanta area were owned by its sister corporations, one for each shopping center. The Noro Group of Funds included Noro Realty Advisers, Inc., a Georgia corporation which advised Noro-North and the other companies concerning real estate investments, and Noro Realty Services, Inc., a Georgia corporation which managed the shopping center for Noro-North at the time of the water damage.

Noro-North was a corporation organized under the laws of the Netherlands Antilles and maintaining its principal place of business there. All of its stock was owned by a holding company, Noro Sunbelt, N. V., another Netherlands Antilles corporation. Noro Sunbelt was not registered in the United States and all of its stock was foreign owned. Noro-North obtained a certificate of Authority to transact business from the Georgia Secretary of State in 1979, pursuant to OCGA § 14-2-310. The registered agent for service was a law firm.

The original lease between Noro-North and Rare Coins was signed in 1982. It was signed by The Oxford Group, Inc., as agent for Noro-North. The duties of The Oxford Group were apparently taken over by Noro Realty Advisers, Inc., and then Noro Realty Services, Inc.

On April 17, 1985, Noro-North filed its Application for Withdrawal with the Secretary of State pursuant to OCGA § 14-2-323. The application erroneously stated that Noro-North was incorporated in Georgia, although the certificate of incorporation attached to it correctly listed the Netherlands Antilles. Noro-North listed 100 Galleria Parkway, Suite 1230, Atlanta, the office of Noro Realty Advisers, as the address required by the statute for mailing.

The flooding occurred on July 14, 1985, and was alleged to be due to the failure of Noro-North to properly maintain the drainage system of the shopping center. Noro Realty, as agent for Noro-North, signed the renewal lease with Rare Coins in August 1985. In November 1985, Noro Realty Advisers moved from the address listed with the Secretary of State, but neither it nor Noro-North advised the Secretary of State of this change.

Prior to filing suit, Rare Coins’ counsel had been negotiating with a law firm which represented Noro Realty Services. When specifically asked if it represented Noro-North, the firm responded only that it “represented the interests of the owners of the shopping centers regarding commercial lease issues and disputes.”

Negotiations proved futile and Rare Coins filed suit against Noro-North and John Doe defendants on February 9, 1987. These John Does were described as including “parent corporations, subsidiaries, or affiliates” of Noro-North. The complaint listed the Netherlands Antilles principal office of Noro-North as its last known address. It was also alleged that Noro-North continued to transact business in Georgia.

Upon receipt of the complaint and process, the Secretary of State acknowledged service and mailed them to the Galleria address, from which they were returned as undeliverable. Rare Coins’ counsel was notified of this and proceeded to take a default judgment. A garnishment action on the judgment prompted the motion to set aside.

The motion contained three grounds: (1) insufficiency of service and resulting lack of personal jurisdiction; (2) invalidity of judgment because of mistake or fraud of Rare Coins, free from negligence or fraud of Noro-North; (3) invalidity of judgment due to lack of personal service, a non-amendable defect apparent on the face of the record.

The court held that Noro-North had continued to transact business in Georgia after filing its withdrawal and that service was properly effected by sending the process to the address provided in the withdrawal, relying on OCGA § 14-2-323 (a) (5).

1. The enumerations of error contain a number of arguments which were not made below. We do not, therefore, consider Enumerations 4, 5, and 6 (a). Ewald v. Security Pacific Credit Corp., 190 Ga. App. 615, 616 (1) (379 SE2d 569) (1989).

2. This case was originally filed in the Supreme Court, which has jurisdiction of constitutional challenge to statutes. That court transferred the case here, stating that there was no basis for its jurisdiction. Enumeration 6 (b) involves a constitutional challenge and will not be addressed. Smith v. Milliken & Co., 189 Ga. App. 897, 898 (2) (377 SE2d 916) (1989); Carter v. State, 93 Ga. App. 12, 14 (1) (90 SE2d 672) (1955); see Matuszczak v. Kelly, 233 Ga. 914, 915 (1) (213 SE2d 875) (1975); Boze v. Atlanta Veterans Transport, 218 Ga. 274 (127 SE2d 466) (1962).

3. The remaining four enumerations, with the exception of Enumeration 7, will be treated together, as they deal with the court’s finding that Noro-North was doing business in Georgia after it filed its withdrawal and that the service effected on the Secretary of State was sufficient to give the court jurisdiction over Noro-North.

(a) Since these matters were presented to the court by way of Motion to Set Aside after a default judgment had been entered, the trial court sits as trier of fact and this court may not interfere with these findings if there is any evidence to support them. Wolfe v. Rhodes, 166 Ga. App. 845, 847 (305 SE2d 606) (1983); Adair Realty Co. v. Parrish, 192 Ga. App. 681 (385 SE2d 770) (1989). It found that Noro-North was required to have a registered agent upon whom service could have been effected.

Noro-North contends that all it did was “own” real property which is insufficient to require it to obtain a certificate of authority under OCGA § 14-2-310. This argument, however, overlooks the fact that Noro-North was actively leasing units to occupants during the time it had a certificate and after it filed its petition to withdraw. Also, through agents operating pursuant to contracts with and powers of attorney provided by Noro-North, Noro-North managed these properties. Such activity through agents is sufficient to constitute transacting business under that statute and the evidence presented was sufficient. See National Acceptance Co. v. Spiller & Spiller, 111 Ga. App. 314, 315-316 (141 SE2d 550) (1965); cf. Buckhead Doctors’ Bldg. v. Oxford Fin. Cos., 115 Ga. App. 52 (153 SE2d 650) (1967).

(b) Having revoked the authority of its registered agent as reflected by its Application for Withdrawal, Noro-North was subject to service pursuant to OCGA § 14-2-319 (b), which provides for service on the Secretary of State. When Rare Coins filed its complaint, it provided the Netherlands Antilles address of Noro-North’s principal office, for service of process in compliance with OCGA § 14-2-319 (b). The statute also requires that the Secretary of State will then mail such process to the principal office of the corporation. The Secretary of State, based on the address given in the Application for Withdrawal, mailed complaint and process to the Galleria address.

OCGA § 14-2-323 (a) (4) & (5) provide that the withdrawing corporation, having Ceased transacting business in Georgia and having revoked the authority of its registered agent for service of process, “consents that service of process in any action or proceeding based upon any cause of action that accrued in this state during the time the corporation was authorized to transact business in this state may be made on such corporation by service thereof on the Secretary of State. ...” The withdrawing corporation is required to list a post office address where the Secretary of State “may mail a copy of any process against the corporation that may be served on him.” (Emphasis supplied.)

OCGA § 14-2-323 cannot be read in isolation from OCGA § 14-2-319, as argued by Noro-North. Morgan v. Woodard, 253 Ga. 751, 752 (325 SE2d 369) (1985); Lucas v. Smith, 201 Ga. 834, 837 (41 SE2d 527) (1947); Ryan v. Commrs. of Chatham County, 203 Ga. 730, 731 (48 SE2d 86) (1948). OCGA § 14-2-323 (a) (4) is the consent to service upon the Secretary of State by the withdrawing corporation for actions accruing during the time the corporation was authorized to transact business. Under OCGA § 14-2-319, continuing to transact business without the required certificate likewise subjects the corporation to service through the Secretary of State. OCGA § 14-2-323 (a) (5) provided an additional address to which process served pursuant to OCGA § 14-2-319 could be forwarded by the Secretary of State. See Bricks v. Walker Showcase, 255 Ga. 122, 123 (3) (336 SE2d 37) (1985).

Even if the complaint and process had been sent to an incorrect address, which is not true here, a mistake made by the person served to properly pass them on is not a basis for a motion to set aside judgment. Villaruz v. Van Diviere Oil Co., 251 Ga. 145, 146 (2) (304 SE2d 58) (1983).

(c) Enumeration 7 alleges that the judgment was entered as a result of fraud or mistake of Rare Coins, unmixed with mistake or fraud of Noro-North. This is premised on the fact that counsel for Rare Coins knew that the complaint and process had not been sent to the Netherlands Antilles and did not correct the Secretary of State’s error. First, as noted above, we conclude there was no error by the Secretary of State. Even if there had been, however, it was not the legal obligation of Rare Coins to correct it. As far as Noro-North’s allegation that counsel breached a duty to the court, that is a matter for another forum. The new corporation code requires that a plaintiff, in addition to serving the Secretary of State, also mail a copy directly to the defendant. There was not such obligation prior to the new statute. Further, since Noro-North and Noro Realty failed to notify the Secretary of State of the abandonment of the Galleria address and to provide a new one, it cannot be said that there was no mistake on NoroNorth’s part.

Decided July 16, 1990.

Hendrick, Spanos & Phillips, Bavid R. Hendrick, Scott K. Tippett, for appellant.

Robert Windholz, Robert J. Hippie, for appellee.

(d) The remaining arguments made are without merit.

Judgment affirmed.

Been, P. J., and Pope, J., concur.

       The Georgia Business Corporation Code was repealed by Ga. L. 1988, p. 1070, § 1 and a new Business Corporation Code, based on the 1984 Revised Model Business Corporation Act, was enacted. The citations herein are to the repealed code unless otherwise noted.


text:
    A90A0955.
    THOMASON v. THE STATE.
    (396 SE2d 79)
   McMurray, Presiding Judge.

Defendant Thomason appeals his conviction of the offenses of homicide by vehicle in the second degree, driving under the influence, speeding, and leaving the scene of an accident. Held:

1. During a Jackson v. Benno (Jackson v. Benno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908 (1964)) hearing, a State trooper referred to documents which he testified were the original notes he had taken during the questioning of defendant. The trooper testified that the defendant’s statement, which was identified (and later admitted into evidence) as an exhibit at the hearing, was prepared from the notes and that there was nothing in the notes that was not included in the exhibit.

When defense counsel sought to examine the notes from which the trooper was refreshing his memory, the State’s objection to this request was sustained. Nonetheless, the State was required to furnish the trial court a photocopy of the notes for in camera inspection. The trial court’s in camera inspection of the notes revealed that their substance was included almost verbatim in the defendant’s statement included in evidence at the hearing.

Defendant was clearly entitled to examine the notes at issue under Johnson v. State, 259 Ga. 403 (383 SE2d 118). However, all that was contained in the notes was available to defendant in defendant’s pretrial statement which was introduced into evidence. The error was harmless and does not require reversal. Id. at 405.

2. Based on his conviction under Count 5 of the indictment, defendant has been sentenced for a felony violation of OCGA § 40-6-270 (Duty of driver to stop at or return to scene of accident), leaving the scene of an accident. Defendant contends that the sentence imposed on Count 5 of the indictment is void since that count of the indictment is fatally defective. On the face of the indictment, Count 5 is listed as “LEAVING THE SCENE OF AN ACCIDENT (40-6-274) [sic].” The body of the indictment states: “COUNT V, LEAVING THE SCENE OF AN ACCIDENT And the Grand Jurors aforesaid, in the name and behalf of the Citizens of Georgia further charge and accuse TIMOTHY JAMES THOMASON of the County and State aforesaid, with the offense of LEAVING THE SCENE OF AN ACCIDENT, for that the said accused on the 5th day of May, in the year 1989, in the County aforesaid, did unlawfully being the drive (sic) of a motor vehicle involved in an accident resulting in the death of Christopher Barry Nunnally, fail to immediately stop such vehicle at the scene of said accident and as close thereto as possible, return to and remain at the scene of the accident until he had fulfilled the requirements of O.C.G.A. §40-9-30 [Reports of accidents required].”

“ ‘The true test of the sufficiency of an indictment (or accusation or citation) is not whether it could have been made more definite and certain (or, for that matter, perfect,) but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.’ (Cits, and punctuation omitted.) King v. State, [176 Ga. App. 137, 139-140 (2) (335 SE2d 439)]. Thus, if the accused can admit all the [indictment or accusation or citation] charges and still be innocent of having committed any offense, the [indictment or accusation or citation] is defective. Brooks V. State, 141 Ga. App. 725 (1) (234 SE2d 541) (1977).” Manley v. State, 187 Ga. App. 773, 774 (2), 775 (371 SE2d 438).

Count 5 having commingled the elements of two separate offenses is garbled and fails to state the essential elements of any offense. An essential element, of the offense of leaving the scene of an accident as set forth in OCGA § 40-6-270, is failing to return to the scene of an accident and remain until fulfilling the requirements of OCGA § 40-6-271 (Duty to give information and render aid). There is no reference in Count 5 to OCGA § 40-6-271 or to the requirements stated therein. OCGA § 40-9-30, which is referenced.in Count 5, is not substantially similar to the requirements stated in OCGA § 40-6-271. Nor does Count 5 charge a violation of OCGA § 40-6-274 (Duty to report accident resulting in injury, death or property damage). Defendant could admit all the allegations of the indictment and be innocent of any offense. Compare Burden v. State, 187 Ga. App. 778, 779 (2) (371 SE2d 410). The omission of an essential element of the crime renders Count 5 of the indictment void. Ponder v. State, 121 Ga. App. 788, 790 (175 SE2d 55). The trial court erred in sentencing defendant on Count 5.

Judgment affirmed in part and reversed in part.

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

Decided July 16, 1990.

James T. Irvin, for appellant.

Michael H. Crawford, District Attorney, George N. Guest, Assistant District Attorney, for appellee.


text:
    A90A1010.
    EMANUEL v. THE STATE.
    (396 SE2d 83)
   McMurray, Presiding Judge.

Tried by the court sitting without a jury, defendant was convicted of statutory rape, child molestation, enticing a child for indecent purposes and sexual exploitation of children. Following sentencing, defendant moved for a new trial. The motion was overruled and defendant appeals. Held:

1. Defendant contends the evidence was insufficient to support a conviction for statutory rape because the State failed to prove penetration. We disagree. The State introduced in evidence a photograph of defendant and a six-year-old child in which defendant placed his penis within the anterior of the child’s vagina. This evidence was sufficient to establish penetration, defendant’s protestations to the contrary notwithstanding. See generally Lee v. State, 197 Ga. 123 (1) (28 SE2d 465), wherein the Supreme Court recognized the established rule in this State that “the penetration of the female sexual organ by the sexual organ of the male, which is necessary to constitute rape, need be only slight; it is not necessary that the vagina shall be entered or the hymen ruptured, but an entering of the anterior of the organ, known as the vulva or labia, is sufficient.”

2. Defendant contends the evidence was insufficient to demonstrate that he enticed a child to a place for indecent purposes in view of his testimony that he simply brought the child to an antique shop to look at some furniture. This contention is without merit. The Georgia Bureau of Investigation agent testified that in an interview defendant stated that he and the antique dealer decided to bring the child to the antique shop for a pornographic photo session. This testimony was admissible as substantive evidence and was sufficient to show that defendant enticed a child to a place for indecent purposes. OCGA § 16-6-5 (a); Dennis v. State, 158 Ga. App. 142 (2) (279 SE2d 275). See also Gibbons v. State, 248 Ga. 858 (286 SE2d 717).

Judgment affirmed.

Car ley, C. J., and Sognier, J., concur.

Decided July 16, 1990.

Larsen & Flanders, H. Gibbs Flanders, Jr., for appellant.

Ralph M. Walke, District Attorney, Peter Fred Larsen, Assistant District Attorney, for appellee.


text:
    A90A1126.
    ROBERTS v. THE STATE.
    (396 SE2d 81)
   McMurray, Presiding Judge.

Defendant Roberts appeals his conviction of a violation of the Georgia Controlled Substances Act, selling cocaine. The sole enumeration of error contends that the trial court erred in permitting a State crime laboratory forensic drug chemist to testify as to scientific tests conducted on the alleged cocaine. Held:

Prior to trial, defendant made a proper and timely written demand pursuant to OCGA § 17-7-211 for any and all written scientific reports in the possession of the prosecution which were to be introduced into evidence against defendant. The State furnished defendant with a one-page document which stated that the substance at issue had tested positive for cocaine. At trial, defendant sought to exclude the testimony of the crime laboratory expert on the theory that she was testifying from scientific reports other than those furnished to defendant.

It is well-established that the State is not required, under OCGA § 17-7-211, to furnish defendant with its expert’s notes, work product, recordation of data, internal documents, or graphs. Durden v. State, 187 Ga. App. 154, 156-157 (369 SE2d 764) (affirmed 258 Ga. 720 (375 SE2d 610)); Williams v. State, 251 Ga. 749, 753 (3) (312 SE2d 40). Thus, it becomes necessary to distinguish between those documents beyond the purview of the statute and those scientific reports which must be provided to defendant if they are to be admitted into evidence. In determining what constitutes a “written scientific report” it has been stated that the common element is that “each includes the examiner’s findings based on scientific analysis or his or her opinion.” State v. Madigan, 249 Ga. 571, 574 (fn. 2) (292 SE2d 406). See also Williams v. State, 251 Ga. 749, 754, supra, and Durden v. State, 187 Ga. App. 154, 157, supra.

The crime laboratory expert testified that she performed a series of three tests on the substance, that each of the tests indicated that the substance was cocaine, but that she would not form an opinion as to the identity of the substance based on only one test. While defendant contends that the data or results from each individual test should have been provided to him, it is clear that the individual test results did not include any expression of the expert’s conclusions or opinion so as to amount to a “written scientific report.” Consequently, we find no violation of OCGA § 17-7-211. State v. Madigan, 249 Ga. 571, 574 (fn. 2), supra. Nor is this a case such as Durden v. State, 187 Ga. App. 154, 157, supra, in which the State omitted from its written report the “quantifying substance of its forensic case against the defendant. . . .”

Decided July 16, 1990.

James A. Nolan, for appellant.

Joseph H. Briley, District Attorney, James L. Cline, Assistant District Attorney, for appellee.

Judgment affirmed.

Car ley, C. J., and Sognier, J., concur.


text:
    A90A1198.
    SWEET v. THE STATE.
    (396 SE2d 82)
   McMurray, Presiding Judge.

Defendant was indicted for enticing a child for indecent purposes, child molestation and aggravated child molestation. The case was tried before a jury and defendant was found guilty on all three counts. This appeal followed. Held:

1. First, defendant contends the offense of aggravated child molestation factually merged with the offense of child molestation, resulting in error in the imposition of a separate sentence for each crime.

“ ‘(O)ffenses merge as a matter of fact pursuant to OCGA § 16-1-6 (1) if one of them is established by proof of the same or less than all the facts required to prove the other.’ Young v. State, 177 Ga. App. 756, 757 (2) (341 SE2d 286) (1986).” LeGallienne v. State, 180 Ga. App. 108, 111 (4) (348 SE2d 471). In the case sub judice, the indictment charged defendant with separate and different sexual acts. The act which constituted the offense of aggravated child molestation was proved without any reference to the acts which constituted the offense of child molestation. Garrett v. State, 188 Ga. App. 176, 177 (3) (372 SE2d 506). Consequently, the trial court did not err in entering separate sentences for the offenses of aggravated child molestation and child molestation.

2. Next, defendant contends “[t]he trial court’s charge regarding flight unfairly shifted the burden of proof to [him] on said issue and penalized [him] for exercising his Fifth Amendment right to remain silent.” In this regard, the trial court charged the jury as follows:

Decided July 16, 1990.

Debra B. Randall, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.

“Flight, if any, and similar acts, if proven, from which an inference of guilt may be drawn may be considered by the jury. But flight is subject to explanation. The weight to be given to it or whether the jury will draw any inference of consciousness of guilt or not is for the jury. It is for the jury to determine whether flight of this defendant, if such has been proven, was due to a sense of guilt or to other reasons. If from other reasons no inference hurtful to the defendant must be drawn by the jury.”

This instruction was neither burden shifting nor violative of defendant’s right to remain silent. Terrell v. State, 258 Ga. 722, 723 (2) (373 SE2d 751).

3. In his final enumeration, defendant asserts the general grounds.

At trial, the ten-year-old victim testified and gave a detailed account of how defendant committed acts which constituted the crimes charged. This evidence was sufficient to authorize the jury’s finding of guilty of the offenses charged against defendant, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Gilbert v. State, 191 Ga. App. 574 (1) (382 SE2d 630).

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    A90A1499.
    WERTS v. THE STATE.
    (395 SE2d 922)
   Deen, Presiding Judge.

Harold Werts was convicted of two counts of violation of the Georgia Controlled Substances Act (sale of cocaine to undercover drug agents). He asserts twenty enumerations of error on appeal.

1. The trial court did not err in overruling appellant’s Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), challenge to the jury. There were forty-two veniremen, of whom five were black. One woman was excused because she was related to the defendant within the sixth degree, and appellant made no objection when she was excused. He cannot raise for the first time on appeal an objection to her excusal. Morris v. Bonner, 183 Ga. App. 499, 500 (359 SE2d 244) (1987). Appellee used four of its peremptory strikes to strike two black men and two white men. Appellant challenged the use of the strikes against the two black males. The State explained that it struck one of the men, whose mother worked in the police department, because he was well known to the police as having been in and out of trouble. The other man was struck because he had entered a guilty plea to a bad check charge. As the State’s reasons for striking the prospective jurors were racially neutral, the trial court did not err in denying the Batson challenge. Barnett v. State, 191 Ga. App. 552, 553 (382 SE2d 620) (1989); Barton v. State, 184 Ga. App. 258 (361 SE2d 250) (1987).

2. The trial court did not err in instructing appellant’s counsel not to make further interruptions after he made two objections that the court considered to be unfounded during appellee’s opening statement. The instruction was given to enable the court to maintain proper control over the proceedings and to ensure courtroom decorum. Any error in such an instruction was harmless because it is highly probable that it did not contribute to the judgment. Cook v. State, 256 Ga. 808, 811 (353 SE2d 333) (1987).

3. Appellant’s plea in misnomer was without merit. He contends that the attaching of an alias to his name in the indictment (“Harold Werts aka Worth”), when he had never been known under the alias, placed his character in issue. In his argument he fails to state just how his character was placed in issue. The court heard testimony that the indictment was drafted with the alias listed because one of the officers who apprehended him thought he said that his name was “Harold Worth,” and he carried no identification on his person. When two names sound alike when commonly pronounced, they are to be regarded as the same and are sufficient to withstand a plea of misnomer. Webb v. State, 149 Ga. 211 (99 SE 630) (1919). It is the identity of the person, not the correctness of his name, that is the true issue. Wilson v. State, 67 Ga. App. 404 (20 SE2d 433) (1942).

4. Appellant’s Fifth and Sixth Amendment rights under the United States Constitution were not violated by requiring him to testify about the sound of his name.

5. As the funding of drug programs was not an issue in the case, and testimony about such funding would not tend to either prove or disprove any material issue in the case, the court below did not abuse its discretion in restricting cross-examination of a witness who was questioned about such funding. Lancette v. State, 151 Ga. App. 740, 741 (261 SE2d 405) (1979).

6. After jury selection, appellant made an oral motion to suppress and exclude videotapes and photographs made from the tapes. He did not file a Brady motion prior to trial, but was permitted to view the entire State’s file and did not choose to examine the videotapes prior to trial. We find no violation of any of appellant’s rights and find that the court properly denied the motion.

7. Appellant’s motion to quash the indictment was properly overruled. Such a motion must be made in writing before arraignment or it is waived. Hardwick v. State, 158 Ga. App. 154, 155 (279 SE2d 253) (1981); Sadler v. State, 124 Ga. App. 266, 267 (183 SE2d 501) (1971).

8. After each witness testified, the court asked both parties if the witness could be excused. The State responded affirmatively, and the defense either gave an affirmative reply or failed to respond. Failure to object to the excusal of a witness waives any objection to the witness’ being excused by the court, and this issue may not be raised for the first time on appeal. Daniels v. State, 183 Ga. App. 222, 223 (358 SE2d 637) (1987).

9. Werts asserts that the chain of custody of the videotape and photographs was not proven by the testimony of the evidence custodian because she was not shown to have taken part in making the videotape.

The custodian testified that the tape was turned over to her by an officer who participated in making it and that it remained in her custody until she brought it to trial. The tape was introduced into evidence after the chain of custody was established through the testimony of the operator of the videotape equipment, who testified that he turned the tape over to another officer who participated in the making of it. This officer turned it over to the evidence custodian. The participating officers viewed the tape prior to trial and testified that it had not been altered in any way and accurately represented the drug buy that they made from the defendant. The chain of custody was proven by the State. Burke v. State, 248 Ga. 124, 125 (281 SE2d 607) (1981).

10. As there was no need to qualify a witness as a law enforcement officer because he testified only as to his own personal observations, the lower court did not err in overruling the objection to the witness’ testimony. Ward v. State, 233 Ga. 251, 252 (210 SE2d 772) (1974).

11. It was also not error for the trial court to require appellant to raise objections to evidence tendered by the State at the time it was offered into evidence. Had appellant not objected to these exhibits, he would have waived his right to raise the issue on appeal. Reaves v. State, 242 Ga. 542, 551 (250 SE2d 376) (1978); Bridgers v. State, 183 Ga. App. 98, 99 (357 SE2d 894) (1987). By affording appellant the opportunity to object, the court was actually assisting him in perfecting the record.

12. The trial court properly charged the jury that the identity of appellant was an essential element in the case that the State had to prove beyond a reasonable doubt, but that a misspelling of the defendant’s name in the indictment was not material, and not a defense to the alleged offense. It further charged that, under the doctrine of idem sonans, if his name and the name alleged in the indictment sounded similar, it was sufficient. See Jackson v. State, 134 Ga. 473, 474 (68 SE 71) (1910). As videotapes and still photographs made from the tapes showed that Werts committed the offenses alleged, the court’s charge on identity was proper.

Decided July 16, 1990.

Edith M. Edwards, for appellant.

H. Lamar Cole, District Attorney, Catherine H. Helms, Assis tant District Attorney, for appellee.

13. It was not error for the trial court to charge the jury as to who is authorized to prescribe, dispense, or sell a controlled substance. Any exception or exemption to drug and narcotics statutes must be proven by the defendant. Gee v. State, 225 Ga. 669, 675 (171 SE2d 291) (1969). As appellant presented no evidence to show that he was exempt from the drug and narcotics statutes, the court properly made the complained-of charge.

14. After the court’s charge to the jury, the defendant spontaneously reserved all rights to object to the charge. On appeal, he claims that the court erred in failing to inquire if there were any objections. In criminal cases, the trial court is not required to inquire of the defendant to see if he has objections to the charge in order to preserve his right to raise the issue on appeal. It is only if the court makes the inquiry that the defendant must respond by stating the charges to which he objects and/or reserve his rights. Mahomet v. State, 151 Ga. App. 462, 464 (260 SE2d 363) (1979).

15. Appellant’s 17th enumeration of error is not supported by either argument or citation to authority. It is deemed abandoned. Askew v. State, 185 Ga. App. 282, 284 (363 SE2d 844) (1987).

16. Appellant was sentenced immediately following the jury verdict, and appellant contends that the court committed harmful error in failing to permit him to have access to or knowledge of whether or not the sentencing decision would be based upon a presentence investigation. When counsel was asked if she had any evidence that she wished to present prior to sentencing, she replied, “No sir,” and agreed with the State to submit it to the court based on the evidence presented at trial. This enumeration is without merit,

17. All four eyewitnesses testified, the videotapes confirmed, and the defendant admitted on the stand that he sold cocaine to the undercover police officers on the dates alleged in the indictment. Based on this evidence, a rational trier of fact could find him guilty beyond a reasonable doubt. Brown v. State, 190 Ga. App. 818 (380 SE2d 349) (1989); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope and Beasley, JJ., concur.


author:
Sognier, Judge.
      Banke, Presiding Judge,
      Beasley, Judge, Carley, Chief judge,

text:
    A90A0096.
    CLARK v. WEST et al.
    (395 SE2d 884)
   Sognier, Judge.

Luvenia Clark brought an action for wrongful foreclosure against Thomas and Mildred West, seeking to set aside the foreclosure sale as well as to recover damages for her mental pain and suffering and attorney fees. The trial court granted Clark’s motion for partial summary judgment and pursuant thereto set aside the foreclosure sale and cancelled the deed under power. Approximately a month later, the trial court dismissed the remainder of Clark’s action when she failed to appear for a peremptory calendar. Thereafter, Clark refiled the suit on those matters prayed for in the original suit which had not been granted in the partial summary judgment. The Wests’ motion to dismiss was granted by the trial court, and Clark appeals.

Appellant contends the trial court erred by granting appellees’ motion to dismiss. Although the actual grounds upon which the trial court granted appellees’ motion are unclear, several possible reasons are stated in the trial court’s order: (a) appellant was not entitled to relief because she had pursued her complaint in equity to satisfaction; (b) the relief appellant was seeking was in the nature of punitive damages, which are not available because the underlying action sounded only in contract; and (c) her claim for attorney fees and expenses of litigation should have been included in the original motion for summary judgment.

We note initially that the dismissal of the first action for failure to appear at a peremptory calendar was without prejudice, USCR 20 (A), and thus the refiling of appellant’s suit within six months of the dismissal was proper. OCGA § 9-2-61 (a).

(a) The trial court apparently agreed with appellees’ argument below, based on this court’s statement in Langley v. Stone, 112 Ga. App. 237, 239 (2) (144 SE2d 627) (1965), that if a foreclosure is wrongful, the “injured party [may] rescind the sale and tender the amount owed on the property or affirm the sale and sue for a breach of the duty to conduct the sale fairly.” The gist of appellees’ argument is that an injured party must elect between an equitable action for cancellation of the foreclosure sale and a suit for damages, and pursuit of one to satisfaction results in the exclusion of the other. We agree that this principle applies if the injured party is seeking to redress only the loss of the value of the property. That is, the injured party may not both set aside or cancel the foreclosure and also recover damages for the value of the property. However, this court has approved actions in which both cancellation and damages were sought. See Andrews v. Holloway, 140 Ga. App. 622 (231 SE2d 548) (1976); Gilbert v. Cherry, 136 Ga. App. 417 (221 SE2d 472) (1975). In those cases, cancellation was sought to recover the property, and in addition, damages were sought for other breaches of duty and other losses. The latter procedure applies in the case at bar, because appellant sought both cancellation of the foreclosure sale to recover the property and also damages for her mental anguish, which resulted from the intentional nature of appellees’ acts, alleging that appellees clearly knew the note was not in default and they had no right to foreclose. It strains credulity to insist that the recovery of appellant’s wrongfully foreclosed residence has made her whole, and we find no bar in law or in logic to a recovery of damages for her humiliation and emotional distress should evidence at trial establish the truth of the allegation in her pleadings that the foreclosure was instituted intentionally and without basis. Accordingly, we do not agree that because the foreclosure sale had been cancelled, appellant could not pursue her separate claim for damages.

(b) Nor do we agree that appellant’s claim for damages for mental anguish is in the nature of punitive damages, as the trial court found. The lower court reasoned that the damages sought by appellant were those recoverable under OCGA § 51-12-5, which are “additional” damages, in that they are awarded in addition to other damages and are in the nature of “punitive” damages; but even if appellant sought those damages allowed pursuant to OCGA § 51-12-6 (where the entire injury is to the peace, happiness or feelings of the injured party), the damages alleged were “vindictive” and therefore “punitive.” The trial court found that “punitive” damages would not lie here because no actual damages were recovered and because punitive damages may not be awarded in cases arising on contracts.

We do not agree with the trial court that a wrongful foreclosure action sounds only in contract. 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); see also 20 EGL, Mortgages and Bonds for Title, § 69, p. 584. Thus, even if punitive damages were sought, they were awardable here.

We find, however, that as pleaded by appellant, the damages sought are those allowed in OCGA § 51-12-6. “As a general precept, damages for mental distress are not recoverable in the absence of physical injury where the claim is premised upon ordinary negligence. [Cit.] However, when the claim is for intentional misconduct, damages for mental distress may be recovered without proof of physical injury. [Cit.]” Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149, 150 (311 SE2d 818) (1984).

East River Savings Bank v. Steele, 169 Ga. App. 9 (311 SE2d 189) (1983), relied on by the dissent, does not control the facts sub judice. In Steele, the plaintiff’s claim was that a negligent wrongful foreclosure was sufficiently humiliating to establish a cause of action for intentional infliction of emotional distress, whereas here appellant’s cause of action is for an intentional wrongful foreclosure, and in addition to cancellation of the foreclosure, she has prayed for the recovery of damages which flow from the intentional nature of the tort. We cannot approve the dismissal of appellant’s remaining claims simply by labeling them a cause of action for “intentional infliction of emotional distress,” where the complaint alleges an established tort — wrongful foreclosure — and seeks damages pursuant to OCGA § 51-12-6 for mental distress as a result of its intentional commission. Established law in this State allows the award of damages for such a claim. See Hamilton, supra at 150. Accordingly, the trial court erred by dismissing appellant’s claim for damages.

(c) The trial court also erred by dismissing appellant’s claim for attorney fees. We find no basis for the trial court’s conclusion that “these issues should have been presented to and taken up before the Court on the Motion for Partial Summary Judgment.” OCGA § 9-11-56 (a) specifically authorizes a motion for summary judgment upon a “claim,” rather than upon an action as a whole, and OCGA § 9-11-56 (d) provides specifically for partial summary judgment. There is no requirement that all claims pleaded be included in a motion for partial summary judgment.

' Moreover, we do not agree that attorney fees sought pursuant to OCGA § 13-6-11 are not available to appellant here. She has alleged bad faith and stubborn litigiousness. If she can prove these allegations and present proper proof of the value of the attorney fees she has expended, see First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 817-818 (4) (285 SE2d 203) (1981), we find no bar to an award pursuant to OCGA § 13-6-11. Bowers v. Fulton County, 227 Ga. 814, 815 (183 SE2d 347) (1971), cited by the trial court, holds that, in general, attorney fees are not required as an element of just compensation in condemnation cases and is not applicable to this case.

Judgment reversed.

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

Banke, Presiding Judge,

concurring specially.

I agree with the majority that East River Savings Bank v. Steele, 169 Ga. App. 9 (311 SE2d 189) (1983), is distinguishable from the present case, but not on the ground that it involved a negligent rather than an intentional wrongful foreclosure. The plaintiff in that case alleged that the defendant had wrongfully attempted to foreclose on certain partnership property in which he (the plaintiff) owned an interest “and that such attempts amounted to intentional infliction of emotional distress upon [him] personally.” Id. at 9. The reason this court ruled against the plaintiff in the East River case was not because the alleged misconduct of the defendant was merely negligent but because it was considered to be “analogous to the filing of legal pleadings.” The court cited Ga. Power Co. v. Johnson, 155 Ga. App. 862, 863 (274 SE2d 17) (1980), for the proposition that the filing of legal pleadings cannot be considered sufficiently “humiliating, insulting, or terrifying” to support an action for intentional infliction of emotional distress. East River Savings Bank, supra at 10,

The defendant in Georgia Power Co. v. Johnson, supra, had instituted condemnation proceedings against certain property owned by the plaintiff and in so doing was alleged to have inflicted mental distress upon the plaintiff by listing as co-owners of the property various individuals who no longer owned any interest in it. That conduct was obviously not remotely comparable to the conduct at issue in the present case, i.e., the institution of wrongful foreclosure proceedings against a personal residence. While the East River, case, supra, did involve an alleged wrongful foreclosure attempt, it is distinguishable because the property involved there was not the plaintiff’s personal residence but rather partnership property in which the plaintiff owned an interest. I believe the prospect of losing one’s home, as opposed to business property in which one merely owns an interest, could, under certain circumstances, be considered sufficiently terrifying or humiliating to support an action for intentional infliction of emotional distress. Consequently, I believe that if the appellant in the present case can prove that the appellees instituted the foreclosure proceedings against her with knowledge that she was not in default on her indebtedness, and if she can further prove that she suffered emotional distress as a reasonable and natural consequence of that conduct, she would be entitled to recover damages in tort for intentional infliction of emotional distress. A motion to dismiss for failure to state a claim “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.” Property Pickup v. Morgan, 249 Ga. 239, 240 (290 SE2d 52) (1982). Accordingly, I agree that the trial court erred in dismissing the appellant’s complaint.

Beasley, Judge,

concurring specially.

This case would not be such a problem if the complaint had been more clearly drafted. What plaintiff started out with in the first suit was in essence two counts. One set forth an equitable action for wrongful foreclosure, to set aside foreclosure sale, to cancel the warranty deed under power, and to restrain execution of a writ of possession. The other was for the tort of intentional infliction of emotional distress, which arose out of the wrongful foreclosure. Plaintiff alleged that the foreclosure was not only wrongful but that it was worse, in that defendants “exhibited a willful and wanton disregard for the rights of the plaintiff.” The primary injury claimed in this regard was that she suffered “severe mental strain,” and she sought damages “for the intentional infliction of mental pain and suffering.” OCGA § 51-12-6 damages flow from this.

Plaintiff was afforded the relief sought on her first count by way of summary judgment, but while the case was still pending on the second count, it was dismissed under USCR 20 (A). As the law permits, OCGA § 9-2-61 (a), plaintiff filed again what was in effect the second count. She did not refile the whole lawsuit but asserted only the intentional infliction cause of action; she explained in the new complaint that relief had been afforded for the wrongful foreclosure, which in effect had been the first count.

In order to recognize her pleading as setting forth a cause of action, it is necessary to focus on paragraph 7 and prayer (a). It is also necessary to translate her reference to “intentional infliction of mental pain and suffering” to mean “intentional infliction of emotional distress,” as it is the latter which is a tort in Georgia. See Greer v. Medders, 176 Ga. App. 408, 409 (336 SE2d 328) (1985), and the cases cited therein. Reading these two sections of her complaint together, we must abide by the precept that pleadings are to be construed liberally. OCGA § 9-11-8 (e) (1) and (f); Cotton v. Federal Land Bank, 246 Ga. 188, 191 (269 SE2d 422) (1980). She does cite a viable claim. That is, if defendants intentionally inflicted emotional distress on her by foreclosing on the home with full knowledge that she was not in default in payments or fire insurance, she would be able to recover whatever damages she could prove within the legal confines of the tort.

East River Savings Bank v. Steele, 169 Ga. App. 9, 10 (311 SE2d 189) (1983), viewed “allegations concerning wrongful foreclosure of partnership assets as a basis for intentional infliction of emotional distress ... [as being] analogous to the filing of legal proceedings.” It then applied Ga. Power Co. v. Johnson, 155 Ga. App. 862, 863 (274 SE2d 17) (1980), for its holding that preparation and filing of legal pleadings (naming certain persons as possible property co-owners in a condemnation action when plaintiff was the sole owner) could not reasonably constitute the tort. This brought it to the holding that “[t]he alleged wrongful foreclosure was not, as a matter of law, an event so humiliating, insulting, or terrifying as to have come within the ambit of a cause of action for intentional infliction of emotional distress.”

I agree with the special concurrence that the facts make this case distinguishable. What is more, it is the whole process, beginning with defendants’ declaring her in default and accelerating the loan on the home which apparently her permanently disabled son occupied, that plaintiff alleges constituted emotional distress. It was not merely the preparation and filing of legal pleadings against wrong parties so as to draw in question the extent of the wronged person’s title to property being condemned, as in Ga. Power Co., or attempts to foreclose on business property owned by a partnership including the wronged person, as in East River Savings Bank.

The court granted summary judgment to defendants, but the evidence in the record did not pierce at least one element of plaintiff’s claim so as to preclude her from going to trial. The law imposes a duty on persons not to intentionally inflict emotional distress on others. Breach of that duty occurs when a person’s actions are “so terrifying or insulting as naturally to humiliate, embarrass or frighten the plaintiff.” Ga. Power Co., supra at 863. “Damages [for mental suffering] may be recovered in those cases where the plaintiff has suffered at the hands of the defendant a wanton, voluntary, or intentional wrong the natural result of which is the causation of mental suffering and wounded feelings.” Dunn v. Western Union Telegraph Co., 2 Ga. App. 845, 846 (3) (59 SE 189) (1907).

Defendants’ motion for summary judgment was based on a notice of cancellation of a standard fire policy on the property on or about December 10, 1986. They allege that the maintenance of fire insurance violated the “mortgage agreement” and allowed foreclosure. The statement is unsworn but the security deed requiring insurance is in the record. They state in their brief in support of summary judgment that plaintiff “was in default for a short period of time until he sought other insurance,” but the record in the first case shows that the new policy commenced October 1, 1984, at the end of the old policy. It is that insurance, not the 1986 insurance coming over two years after foreclosure, which is the basis for the action.

Default was declared and foreclosure instituted even before the old policy concluded and before the new insurance went into effect. Defendants acknowledge in a later brief that plaintiff maintained she did not allow fire insurance to lapse, that they were denied a writ of possession, and that the foreclosure was set aside and the recorded warranty deed under power of sale was cancelled.

These are the salient material facts. Defendants did not establish that they were entitled to summary judgment under OCGA § 9-11-56. For this reason, I concur in the reversal of the judgment.

Decided June 28, 1990

Rehearing denied July 17, 1990.

James D. Burns, for appellant.

J. L. Jordan, Ray Gary, for appellees.

Carley, Chief judge,

dissenting.

In my opinion, appellee-defendants’ motion to dismiss was correctly granted, although not for any of the reasons that the trial court gave for doing so. Therefore, I would affirm under the principle of “right for any reason” and must respectfully dissent to the majority’s reversal of what I perceive to be a correct ruling by the trial court.

I agree with the majority that, in certain circumstances, a party may seek not only cancellation of a foreclosure sale, but also appropriate damages based upon the wrongful conduct of the defendant. However, in this case, appellant seeks to recover on the basis that appellees’ wrongful foreclosure was an intentional infliction of emotional distress upon her. “The law of this state recognizes the tort of intentional infliction of emotional distress. [Cits.] In order to sustain a cause of action, a plaintiff must show that ‘defendant’s actions were so terrifying or insulting as naturally to humiliate, embarrass or frighten the plaintiff.’ [Cit.] . . . [P]reparation and filing of legal pleadings [can] not reasonably be characterized as ‘humiliating, insulting, or terrifying’. . . . [Appellant’s] allegations concerning wrongful foreclosure of [her property] as a basis for intentional infliction of emotional distress upon [her] personally are analogous to the filing of legal pleadings. . . . The alleged wrongful foreclosure was not, as a matter of law, an event so humiliating, insulting, or terrifying so as to have come within the ambit of a cause of action for intentional infliction of emotional distress.” East River Savings Bank v. Steele, 169 Ga. App. 9, 10 (311 SE2d 189) (1983). It necessarily follows that, as a matter of law, appellant has no viable claim against appellees for the intentional infliction of emotional distress based upon the wrongful foreclosure and that, contrary to the majority, the trial court correctly granted appellees’ motion to dismiss. Therefore, I respectfully dissent.

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