author: Birdsong, Presiding Judge.

text:
    A94A1312.
    WILLIAMS v. POWELL.
    (447 SE2d 45)
   Birdsong, Presiding Judge.

Mable L. Williams appeals the grant of summary judgment to Joseph W. Powell II, in her suit against him for usury, including violations of OCGA § 7-4-18.

In June 1990, Williams was facing foreclosure of the first and second mortgages on her home. The principal debt on the first mortgage was $13,782.36. The principal debt on the second mortgage was $3,844.70. In June 1990, she executed a document entitled “Wraparound Mortgage” showing a loan of $22,922.01 by Powell, who is an attorney. A schedule shows the loan was broken down as $13,782.36 for the first mortgage and $9,139.65 additional loan amounts. The additional $9,139.65 lent to Williams included $659.95 to bring current her first mortgage payments, $3,844.70 to pay off her second mortgage, a $125 “transfer fee” by which Powell contends he assumed Williams’ obligation on the first mortgage, and $610 for life insurance. The remaining $3,900 is designated as “loan fees” to entities apparently connected to Powell.

The terms of the June 1990 wraparound mortgage extended not only to the June 1990 loan but to all “renewals” thereof, and obligated Powell only to pay to the first mortgagee the principal and interest on the mortgage “as and when required by the terms of said first security deed” (i.e., $169.26 monthly). The terms expressly provided that “with the sole exception of . . . principal and of the interest due thereon [Powell] does not assume any of the obligations” of Williams under the first mortgage, and that Powell’s obligation to pay principal and interest “as and when required” “shall be solely for the benefit of [Williams] and shall not be enforceable by any third person or party, specifically not the holder of the first security deed.”

The loan which was originally secured by the wraparound mortgage extended only for six months. Williams was required to pay to Powell $347.50 each month from July to November 1990; in December 1990, Williams was required to pay the “final installment of all principal and accrued interest.” This required a balloon payment of the “unpaid balance.” Williams was unable to make such payment, which Powell claimed was $23,078.34 but which, according to Williams, includes at least $500 unaccounted monies.

To finance the balloon payment of $23,078.34 in December 1990, Williams executed a renewal loan which, as shown by a “federal disclosure statement,” obligated Williams to pay an “amount financed” of $24,053.74, at 18.258 percent interest, for a total of $37,382.66. The new principal included the $23,078.34 balloon payment, loan fees, and fees for Powell’s law firm.

Thus, six months after Williams appealed to Powell to refinance and bring current her mortgages totaling $18,287.01, she owed him $37,382.66, and she still remained obligated to the first mortgagee for the balance of her unpaid first mortgage.

The December 1990 renewal note was payable in 35 installments of $373.34, but a letter from Powell required Williams to pay him an additional $33.27 per month for “escrow” fees which Williams says are already charged in the first mortgage payments. Williams says she paid $2,085 on the June 1990 note and $2,842 on the December 1990 note before filing this suit. Held:

1. The trial court erred in finding that as part of the June 1990 loan transaction Powell “loaned a principal sum which included $13,782.36 [the balance owed on the first mortgage], payment for which [Powell] assumed responsibility in the wraparound mortgage between the parties dated June 5, 1990.”

Powell did not, in the June 1990 loan, lend to Williams or pay on her behalf the $13,782.36 balance on the first mortgage. The “wraparound mortgage” expressly provides that Powell did not assume Williams’ obligations under her first mortgage except “constant monthly installments” of principal and interest “as and when required by the terms of said first security deed.” The wraparound mortgage was expressly stated as not being for the benefit of a third party including specifically the first mortgagee. The first mortgagee could not enforce Williams’ debt against Powell, and Williams remained fully liable to the first mortgagee. The terms of the wraparound mortgage are so uncertain that it cannot readily be ascertained what rights, if any, Williams has under this document. See Patel v. Gingrey Assoc., 196 Ga. App. 203, 206 (395 SE2d 595); Hughes v. McMichen, 164 Ga. App. 304, 305 (296 SE2d 233).

What is certain is that Powell did not assume any obligation to Williams or to the first mortgagee to pay off the entire first mortgage on or by December 1990, but he charged Williams interest and principal on that full amount as if he had paid it on or by December 1990. The wraparound mortgage allows Powell to hold title to Mable Williams’ house as if he had paid the entire first mortgage by December 1990, with the result that in December 1990, Williams was forced to obligate herself to pay Powell a balloon payment, ostensibly including that full amount with interest, which he “refinanced” for her for a total debt of principal and interest of $37,382.66 due in three years.

2. Williams offers sophisticated calculations to show Powell charged usurious interest rates for the June 1990 loan, but these merely complicate the matter. The facts are simple. The June 1990 transaction required Williams to pay eighteen percent interest on the entire first mortgage ($13,782.36) for six months as if Powell had paid that entire mortgage for her, but Powell did not pay that amount to Williams or to the mortgagee during those six months. By December 1990, he had merely made monthly payments of $169.26 to the first mortgagee for six months ($1,015.56). As relates to the first mortgage amount, Williams paid interest on $13,782.36 for six months as if she had been lent that amount, but she effectively got only $1,015.56. The rest she still owed to the first mortgagee, and as of December 1990, she also owed it to Powell, plus 18 percent interest.

' Interest is calculated on amounts of which the borrower had use. Bank of Lumpkin v. Farmers State Bank, 161 Ga. 801, 813-814 (132 SE 221). As of December 1990, in addition to her monthly payments to Powell of $347.50 for five months ($1,737.50), Williams owed Powell a balloon payment of $23,078.34. That debt was based on a fiction that Powell had paid off the first mortgage, but he did not do so nor was he obligated to do so. When she was obligated to pay this large balloon payment in December 1990, Williams had no money from Powell except $5,239.65 to catch up back payments, pay off the second mortgage and pay life insurance and an alleged transfer fee, and six payments made by Powell on the first mortgage totaling $1,015.56.

The total mount of money of which Williams had use in those six months was thus $6,255.21. However, the balloon payment of $23,078.34 (due in December 1990) represented $6,255.21 in apparently legitimate debt plus the entirety of the first mortgage and 18 percent interest thereon, plus $3,900 “loan fees.” The $3,900 “loan fees” are considered as interest for the purposes of determining criminal usury. OCGA § 7-4-18; Norris v. Sigler Daisy Corp., 260 Ga. 271 (2) (392 SE2d 242); see Fleet Finance &c. v. Jones, 263 Ga. 228, 233-234 (430 SE2d 352).

Mable Williams thus incurred a debt of $24,815.84 ($1,737.50 for five monthly payments made plus $23,078.34 “balloon payment”) in six months on the June 1990 loan. This debt and payment ($24,815.84) less the $6,255.21 actually lent, amounts to $18,560.63 in interest in six months on the real loan of $6,255.21. This is $3,093.44 interest per month, more than 49.45 percent per month, or 297 percent in six months on $6,255.21 actually lent.

Powell insists that he has faithfully paid $169.26 per month to the first mortgagee and continues to do so, but this does not mitigate the fact that he extracted usurious interest rates from Williams in the June 1990 loan. We are not concerned how other jurisdictions view wraparound mortgages, for we are not convinced this was a “wraparound mortgage.” Powell’s payment of these small amounts ($169.26 per month) via a “wraparound mortgage” seems a device to make Williams look like a squatter if she cannot pay him $406.61 per month, or more than $37,000 in three years, which he will eternally renew with a balloon payment in a usurious device which would repeat itself every three years. Williams says Powell was just a “conduit” for payment of the first mortgage, but we are not sure he was bound by any contract to be even that, since Williams has defaulted on these loans. By paying the $169.26 monthly payments, he is a volunteer making very small payments to justify very great usury.

When from a consideration of the transaction it becomes apparent that there was a corrupt intent to violate the usury laws, the courts will permit no scheme or device, by whatever name, to hide it; any contrivance to evade the usury laws and enable the lender to get more than legal interest will render the transaction usurious, and the courts will look to the actual nature of the transaction and not to the form the parties have given it. Young v. First Nat. Bank of Covington, 22 Ga. App. 58, 65-66 (95 SE 381); see Gunnels v. Atlanta Bar Assn., 191 Ga. 366, 381 (12 SE2d 602). The trial court erred in granting summary judgment to Powell on the issue of usury under OCGA § 7-4-18 as to the June 1990 loan.

Moreover, six months after Williams actually borrowed and had use of $6,255.21, she became indebted to Powell for $37,382.66, and she still remained fully obligated to the first mortgagee for the remaining principal and interest after Powell had made the small monthly payments. If Powell had paid off the first mortgage by December 1990 (when he claimed Williams owed him more than $23,000 balloon payment as if he had paid the first mortgage with the other second mortgage and other “fees”)» the pay-out would have been a much smaller amount since it would include only principal and not unearned interest. By not paying off the first mortgage by December 1990, Powell compelled Williams to continue borrowing larger and larger sums (including interest). We do not include these anomalous and onerous results of the transactions in our calculation of interest for the purposes of this case, however.

3. The December 1990 refinancing note which Williams executed to pay the “balloon payment” due on the June 1990 loan is also usurious. Once there is usury the usury infects any renewal note for the same debt or any part thereof. McNair v. Gold Kist, 166 Ga. App. 782, 784 (305 SE2d 478).

Further, the renewal note is usurious in the same way as the June 1990 note was usurious, being based on the quantum fiction that Powell had paid off the entire first mortgage by December 1990. The December 1990 note obligated Williams to pay total principal and interest of $37,382.66, about $400 per month, until December 1993, when another balloon payment of $24,315.76 became due, which doubtless would be similarly financed. Williams would never get out of debt to Powell. When Powell has “voluntarily” paid off Williams’ mortgage ($13,782.36 at $169.26 per month in less than seven years from July 1990) and owns her house by having had it transferred to his name, Williams will perpetually owe Powell a “renewal note” of around $37,000 every three years on account of the balloon payment which she must keep refinancing. The interest on Powell’s imaginary payoff of the entire first mortgage by December 1990, for which he continues to extract usurious interest, underlies all these notes. All renewals of the debt merely escalate the usury to a point so unconscidnable that it becomes more than usury. The record indicates Powell has made other loans involving real estate.

Judgment reversed.

Senior Appellate Judge Harold R. Banke concurs. Blackburn, J., concurs in judgment only.

On Motion for Reconsideration.

Powell insists that because he pays $169.26 per month on Williams’ first mortgage, he properly charged interest on the entire first mortgage amount ($13,782.36) from June 1990, and properly made her repay him $23,078.34 in December 1990, financed with a note for $37,382.66. His calculations showing that the interest is proper when figured on the original term of the first mortgage are misleading, for in fact he charged her interest as if he paid the mortgage off in June 1990. That he obligated himself to Williams only to pay mortgage payments “as and when” due and did not obligate himself to the mortgagee does not justify the deal; it makes it unconscionable. Williams could have borrowed $4,504.65 to pay the second mortgage and arrearage and paid $169.26 per month herself; instead, based on the fiction that he paid off the mortgage in June 1990, she is in debt to Powell for $37,382.66 and is liable to the first mortgagee. This is a bargain “ ‘no sane man not acting under a delusion would make and . . . no honest man would take advantage of.’ ” R. L. Kimsey Cotton Co. v. Ferguson, 233 Ga. 962, 966 (4) (214 SE2d 360).

To convince us that his continuing payments of $169.26 per month justify the usury which was complete in December 1990, Powell says we found “that after paying off the first mortgage [Williams] would still owe in excess of $24,000.” This is an incorrect representation by Powell. He contends the first mortgage was “included in the amounts financed”; of course this is true, and that is the whole problem, for though he charged her interest on the whole first mortgage amount, he did not pay if off. He says her obligation was “the same as if he had paid off the first mortgage in full in June of 1990, and simply stepped into the shoes of the first mortgagor,” but that is the problem, for he did not pay off the first mortgage in June 1990 and could not step into her shoes.

Powell now says the December 1990 debt “in excess of ’ the $23,078.34 balloon payment was “attributable to the first mortgage.” He thus takes the position that none of the June 1990 loan amount was attributable to the first mortgage. This position lacks substantial justification; he could not reasonably believe a court would accept it (OCGA § 9-15-14 (a) and (b)), as the loan document shows on its face that $13,782.36 of the June 1990 loan was attributed to the first mortgage. Surely he does not contend that document was a sham. Since he had paid only $6,255.21 on her behalf, he must explain to a jury why she had to repay him $23,078.34 in December 1990, which forced her to sign a note to him for $37,382.66. He cannot keep saying with any justification (see OCGA § 9-15-14 (a) and (b)) that for consideration of $6,255.21 paid by him, she signed a note for $37,382.66 in December 1990 requiring her to pay him $406.61 per month and giving him the privilege of paying $169.26 per month in the future on her mortgage while she remains bound to the mortgagee.

Decided June 21, 1994

Reconsideration denied July 28, 1994

Paul E. Kauffmann, Carmen L. Toussignant, Lisa J. Krisher, Phyllis J. Holmen, for appellant.

Denney, Pease, Allison, Kirk & Lomax, Allen C. Levi, for appel-lee.

Motion for reconsideration denied.


source: Caselaw Access Project

license: Public Domain

text:
    A94A1234.
    DEPARTMENT OF TRANSPORTATION v. BENTON et al.
    (447 SE2d 159)
   Birdsong, Presiding Judge.

The Department of Transportation appeals the jury’s condemnation award for 17.686 acres for right-of-way purposes. The land taken was part of a 123.28-acre tract owned by condemnees. Condemnor’s witness Shepherd found just and adequate compensation for the land taken at $40,600 with no consequential damages. Condemnees’ witness Blackwell determined the value of the land taken was $79,526 with consequential damages to the remainder of $272,449. The jury returned a general verdict for $182,800. Held:

1. Condemnor contends the trial court erred in allowing con-demnees’ witness Blackwell to testify as to the value of the property taken based on “hypothetical developed subdivision lots on con-demnees’ undivided, unimproved tract of land.” Condemnor contends that the valuation was misleading, as there was no question that the 123.28-acre tract was an undivided, unimproved tract both before and after the taking. Both parties agree that the best use of this property is residential.

In condemnation proceedings the trial court may exercise its discretion to determine whether evidence shows a reasonable probability that the subject property can possibly be used for a proposed purpose, such as subdivision use, and the court’s discretion in admitting such evidence will not be reversed unless there was a manifest abuse of discretion. Colonial Pipeline Co. v. Williams, 206 Ga. App. 303, 304 (425 SE2d 380). In Colonial Pipeline Co., an expert witness described a method for subdividing land into separate identified lots suitable for immediate residential development. We reversed the award for consequential damages because the testimony valued the land as if it were already subdivided, at the retail price that would be paid by a purchaser of a subdivided lot. Even where a different use is probable, the jury cannot evaluate the property as though the new use were an accomplished fact; the jury can only consider the new use to the extent that it affects the market value on the date of taking.

In all cases, the only question for decision is the value of property taken (or consequential damages) at the time of taking. City of Dalton v. Smith, 210 Ga. App. 858 (2) (437 SE2d 827). The fact that the property is merely adaptable to a different use is not in itself a sufficient showing in law to consider such different use as a basis for compensation; it must be shown that such use of the property is so reasonably probable as to have an effect on the present value of the land. Colonial Pipeline, supra at 304, citing Dept. of Transp. v. Great Southern Enterprises, 137 Ga. App. 710, 713 (2) (225 SE2d 80). Even where a different use is shown to be reasonably probable, the jury cannot evaluate the property as though the new use were an accomplished fact; the jury can consider the new use only to the extent that it affects the market value on the date of taking. Colonial Pipeline Co., supra, citing Pursley, Ga. Eminent Domain, § 6-5. Condemnees’ expert could give his opinion of the value of the land on the date of taking “based upon its enhanced value because of its adaptability as a residential subdivision”; he could not testify as to the value before and after the taking based upon his assumption of the value as if the property had already been subdivided, for where he gives reasons which appear to be wholly speculative or conjectural, his opinion is without foundation and without probative value. Colonial Pipeline Co., supra at 305. See generally Swanson v. Dept. of Transp., 200 Ga. App. 577 (2) (409 SE2d 74).

The testimony valued the land taken as if it were already subdivided, including the “net” after deducting the cost of subdividing, and as if it were fully developed and sold on the retail market. The land’s present enhanced value based on its potential as residential development property was admissible, not its future retail “net” price as if it were already developed and were being sold on the market. The deduction of costs of development may seem to make this evidence less speculative than that evidence in Colonial, supra; nevertheless, the trial court erred in admitting this evidence, not simply because it is “speculative,” but because it values the property at a time after the taking. The award of the jury, being a general award which does not distinguish direct and consequential damages, was obviously affected by it, and must be reversed; and a new trial is required.

Decided July 28, 1994.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, Avant & Evans, Irwin B. Evans, for appellant.

2. Even assuming the expert’s evidence of “development costs” had been admissible, it was error to allow the expert’s written calculations to be sent out with the jury. “ [I]t is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again . . . while oral testimony is received but once.” Tibbs v. Tibbs, 257 Ga. 370, 371 (359 SE2d 674). In McClure v. State, 163 Ga. App. 236, 238 (293 SE2d 496), we held: “[C] harts and diagrams may be used during the course of a trial for the purpose of illustrating testimony or contentions but are excluded as being a continuing witness in the jury room.” See also Thomason v. Genuine Parts Co., 156 Ga. App. 599 (275 SE2d 159); Woodward v. City Council of Augusta, 117 Ga. App. 857 (162 SE2d 304). A written summary of a witness’ testimony is “properly excluded” from evidence in the jury room. Sackett v. L. L. Minor Co., 244 Ga. 375, 377 (5) (260 SE2d 37). “Continuing witness” evidence is unfair on its face; it is illegal and prejudicial per se, as it necessarily emphasizes what is written down at the expense of what is oral and is heard only from the witness stand. Tibbs, supra; Thomason, supra. When the jury returns a verdict toward which it was unfairly weighted by having such written matter sent out by the trial court, we cannot presume this error was harmless. In rare cases, continuing witness’ evidence has been held harmless where the jury has equally countervailing written or pictorial evidence from which to evaluate the accuracy and fairness of the “continuing witness” (see Parks v. State, 199 Ga. App. 736, 739 (406 SE2d 229); Kenney v. State, 196 Ga. App. 776 (397 SE2d 131)) and it is not illegal if it falls within a specific exception created by the Uniform Rules (McAlpine v. Leveille, 258 Ga. 422 (2) (369 SE2d 907)), but those are unique exceptions to the rule. We will more likely reverse the verdict advocated by a “continuing witness,” for to excuse it is to encourage it. Any party who uses it to buttress his case is fairly warned that he will lose his verdict, however fair it might otherwise have seemed.

Judgment reversed.'

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.

Glover & Davis, J. Littleton Glover, Jr., R. Keith Prater, for ap-pellees.


text:
    A94A1291.
    STINNETT v. THE STATE.
    (447 SE2d 165)
    Decided July 28, 1994.

      Michael H. Saul, for appellant.

      Thomas J. Charron, District Attorney, D. Victor Reynolds, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.
   Birdsong, Presiding Judge.

Chad Allen Stinnett appeals his convictions of burglary. His sole enumeration of error contends the trial court erred by denying him first offender treatment for this crime. Stinnett argues that the trial court improperly refused to exercise its discretion to grant him first offender treatment because he committed a misdemeanor after the offense for which he sought first offender treatment. Held:

Although the trial court, in fact, refused to give Stinnett first offender status because he committed a second offense, Stinnett misconstrues the import of the trial court’s remarks. The trial court stated that it was aware that the misdemeanor did not preclude granting first offender status, but “[i]n the court’s analysis he is not entitled to first offender because he, after committing one crime, committed another. Therefore he is not entitled to first offender treatment.”

Under our law, a trial court “may” grant first offender treatment (OCGA § 42-8-60), but granting first offender treatment is discretionary with the trial court (Todd v. State, 172 Ga. App. 231, 232 (323 SE2d 6); Welborn v. State, 166 Ga. App. 214, 215 (303 SE2d 755)), and a trial court is not required to grant first offender status. Head v. State, 203 Ga. App. 730, 731 (417 SE2d 398). Further, although a trial court may not use a mechanical sentencing formula (see Jones v. State, 208 Ga. App. 472 (431 SE2d 136); Cottingham v. State, 206 Ga. App. 197, 199 (424 SE2d 794)), nothing in this record suggests that this trial court had such a policy. On the contrary, it is apparent from the remarks quoted above that this trial court considered appellant’s record and, exercising judicial discretion, determined that he was not entitled to first offender treatment. Accordingly, appellant’s contention is without merit.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


author: Blackburn, Judge.

text:
    A94A1520.
    WATSON v. CLAYTON COUNTY.
    (447 SE2d 162)
   Blackburn, Judge.

On August 30, 1993, the appellant, John L. Watson, Jr., filed the instant action seeking damages and injunctive relief against the ap-pellee, Clayton County, Georgia, and the City of Atlanta, Georgia, alleging that Clayton County allowed the City of Atlanta to barricade and excavate a portion of a private street which abutted his property and that this activity created a continuing nuisance. Watson further alleged that the City of Atlanta and Clayton County obstructed his ingress and egress to the property and interfered with the utility service being provided to the property.

Thereafter, the trial court granted the City of Atlanta’s motion for summary judgment based upon Watson’s failure to provide ante litem notice, and this decision was not appealed. Clayton County also moved for summary judgment, and the first motion was denied by the trial court. This appeal involves the trial court’s grant of Clayton County’s second motion for summary judgment. On appeal, Watson maintains that the trial court erred in granting Clayton County’s motion to dismiss which was contained in the motion for summary judgment, and erred in granting summary judgment in favor of Clayton County. We disagree and affirm.

The record viewed in the light most favorable to Watson, non-movant, shows that in 1959, Watson purchased property on Fulford Drive in the L. J. Eberhart subdivision in the Mountain View area of Clayton County. Between 1978 and 1983, the City of Atlanta purchased property along Fulford Drive for the purpose of expanding the runways at Hartsfield International Airport. Although Clayton County entered into an agreement with the City of Atlanta in 1982 under an urban redevelopment plan whereby Clayton County would condemn properties and convey the properties to the City of Atlanta in the event that the City of Atlanta could not acquire the property, the City of Atlanta purchased the properties along Fulford outright without the assistance of Clayton County.

Beginning in June 1983, the City of Atlanta constructed a barricade across Fulford Drive to the east of Watson’s property but in the same block in which Watson’s property was located. The City of Atlanta excavated dirt from the eastern portion of Fulford Drive at depths of 25 feet and erected a conveyor belt running across and along Fulford Drive, obstructing access to Watson’s property from the east. However, Watson’s property was accessible from the west. As a result of this activity, Watson’s utility lines were temporarily removed and services were allegedly interrupted. It is undisputed that Fulford Drive was paved through private donations, and there is no evidence that Fulford Drive was dedicated, accepted, or maintained by Clayton County.

Decided July 28, 1994.

John L. Watson, Jr., pro se.

Greg K. Hecht, for appellee.

“A private landowner may dedicate land by setting it apart for public use, but it must be accepted by the county before it becomes a county road. Both dedication and acceptance may be express or implied as long as a clear intent is manifested.” (Citations omitted.) Ross v. Hall County Bd. of Commrs., 235 Ga. 309, 310 (219 SE2d 380) (1975). In the case sub judice, there is no evidence that Fulford Drive was dedicated to the county and accepted by the county before the City of Atlanta barricaded and excavated a portion of the road. See id. In addition, there is no evidence that Clayton County exerted any control over Fulford Drive or over the City of Atlanta’s activities on Fulford Drive. See Lewis v. DeKalb County, 251 Ga. 100 (1) (303 SE2d 112) (1983). While Watson maintains the road was contained in the recorded plat of the subdivision, “mere approval of [subdivision] plats containing offers of dedication d[oes] not constitute acceptance.” Id. at 101.

Watson’s reassertion of the allegations contained in the complaint that Clayton County allowed the City of Atlanta to excavate and barricade portions of the road are insufficient to create a material issue of fact precluding summary judgment. In addition, Watson’s assertion that the trial court erred in granting Clayton County’s motion to dismiss is not supported by the record inasmuch as the trial court’s order did not address this issue. It is well settled that this court’s jurisdiction on appeal is limited to the review of errors allegedly made below. See State v. Cobb, 208 Ga. App. 752 (432 SE2d 112) (1993). Consequently, Clayton County cannot be held liable for the City of Atlanta’s undisputed activity on the eastern portion of Fulford Drive, and therefore, summary adjudication in favor of Clayton County was warranted.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.


text:
    A94A1672.
    SPURGEON v. THE STATE.
    (447 SE2d 164)
   Blackburn, Judge.

This is an appeal from the trial court’s denial of Durward Spurgeon’s motion to withdraw his guilty plea to two misdemeanor counts of theft by deception. Spurgeon was also charged with two counts of theft by taking, but the theft by taking charges merged with the deception charges. See OCGA § 16-1-7. In five separate enumerations, Spurgeon challenges the validity of his guilty plea.

“ ‘Once the question of the validity of a guilty (or nolo con-tendere) plea has been raised, the burden is on the State to show that the plea was intelligently and voluntarily entered. The State may accomplish this end by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all the rights he was waiving and the possible consequences of his plea; or (2) fill a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.’ [Cit.]” White v. State, 211 Ga. App. 779 (440 SE2d 527) (1994). However, “[a]fter pronouncement of sentence, a ruling on a motion to withdraw a plea of guilty is within the discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of such discretion.” (Citations and punctuation omitted.) Bice v. State, 212 Ga. App. 184 (441 SE2d 507) (1994).

The transcript of the plea proceeding in the case sub judice shows that Spurgeon initially pleaded nolo contendere to the offenses charged. Prior to the court’s acceptance of the plea, the trial court asked Spurgeon a series of questions concerning the voluntary nature of his plea and his waiver of rights. In response to those questions, Spurgeon indicated that he was not under the influence of any drugs or alcohol, understood the nature of the charges against him and the maximum punishment that could be imposed against him for the offenses, and understood the rights that he waived by entering a guilty plea, including the right to counsel, and Spurgeon chose to further proceed without the benefit of counsel.

Following the trial court’s acceptance of the plea and oral pronouncement of his sentence and fine, Spurgeon asked the court to explain the first offender program and asked if the program would apply to him in this case. The court informed Spurgeon that he would have to plead guilty under this program. Thereafter, the trial judge asked an attorney present in the courtroom to advise Spurgeon on the advantages of pleading guilty under the first offender program in comparison to pleading nolo contendere. After a discussion with this attorney, Spurgeon changed his nolo contendere plea to guilty. The court subsequently accepted the plea and his application for first offender treatment, and the record before us contains a written guilty plea signed by Spurgeon. Based upon this evidence, we believe that the State has met its burden of showing that the plea was freely and voluntarily given, and the trial court did not abuse its discretion in denying Spurgeon’s motion to withdraw the plea.

Decided July 28, 1994.

Durwood D. Spurgeon, pro se.

Ben Smith, Solicitor, Mark A. Basurto, Barry E. Morgan, Assistant Solicitors, for appellee.

We reject Spurgeon’s assertion that the trial court erred by refusing his offer to present a contractual agreement concerning the offenses which originated from the purported sale of a Craftmatic bed. Spurgeon’s testimony during the plea proceeding included statements concerning the contents of the written agreement. Hence, “the evidence that [Spurgeon] sought to introduce was cumulative. The admissibility of evidence is within the sound discretion of the trial judge and in view of the cumulative nature of the excluded evidence, any error in excluding same was harmless.” Stewart v. State, 210 Ga. App. 474, 477-478 (436 SE2d 679) (1993).

Spurgeon’s first, second and fifth enumerations of error are deemed abandoned because they are not supported by argument or citations of authority pursuant to Court of Appeals Rule 15 (c) (2). See McDonald v. State, 210 Ga. App. 689, 691 (4) (436 SE2d 811) (1993). The remaining issues asserted in Spurgeon’s brief were not preserved for appellate review inasmuch as these issues were not raised in Spurgeon’s enumerations of error. It is well settled that “ ‘ “[enumerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration. (Cit.)” (Cit.)’ [Cit.]” Powell v. State, 210 Ga. App. 409, 414 (7) (437 SE2d 598) (1993). Consequently, those issues have not been considered by this court.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.

       Entry of a plea of nolo contendere to an offense constitutes a plea of guilty except that it cannot work any civil disqualification upon the defendant. Peters v. State, 210 Ga. App. 211, 212 (1) (435 SE2d 731) (1993).


author: Pope, Chief Judge.

text:
    A92A1267.
    STRINGER et al. v. SOUTHEASTERN STAGES, INC. et al.
    (447 SE2d 345)
   Pope, Chief Judge.

This court having entered a judgment in the above-styled case at 207 Ga. App. 223 (427 SE2d 494) (1992) reversing the judgment of the trial court, and the judgment of this court having been reversed on certiorari by the Supreme Court at 263 Ga. 641 (437 SE2d 315) (1993), judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Decided June 28, 1994

Reconsideration denied July 29, 1994.

Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., C. Frederick Overby, Peter J. Daughtery, Jones, Boykin & Associates, John W. Jones, Noble L. Boykin, Jr., for appellants.

Lorrenzo C. Merritt, Lokey & Bowden, Malcolm Smith, Mel Mobley, for appellees.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Beasley, P. J., Andrews, Johnson, Blackburn, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur.


author: Birdsong, Presiding Judge. Blackburn, Judge,

text:
    A94A0085.
    KING et al. v. BAKER et al.
    (447 SE2d 129)
   Birdsong, Presiding Judge.

Larry and Sandra Baker filed suit seeking to enjoin Sam T. King and Gloria J. King from keeping a large number of pit bulls and other dogs in dog pens and maintaining a dog breeding business at their home next to the Bakers in Coweta County.

The Kings retained a real estate agent to find a house on two acres so they could build kennels. The mortgage company’s attorney and a realtor allegedly represented to the Kings that there were no restrictions concerning dogs. The Kings’ deed contains no restrictive covenants concerning dogs or kennels. However, the restrictive covenants filed with deed records in the courthouse provide that no animals other than a “reasonable number of generally recognized house pets” shall be kept on the property, no animals shall be allowed to make an unreasonable noise or be a nuisance, “no structure for the . . . housing ... of any animal shall be maintained,” and that the subdivision control committee shall determine in its discretion whether a particular animal is a nuisance or whether a number of animals on a property is reasonable.

The Kings built twelve permanent pen enclosures with concrete pads and six-foot chain link fencing, visible to their next-door neighbors, the Bakers. The evidence showed unequivocally that the Kings erected two temporary pens at the back of their two-acre property when they moved in their house on September 1, 1992, and did not make permanent pens by pouring concrete until October; until then, the dogs were kept in the garage and the Bakers did not know there were a large number of dogs on the property. Neither Mr. nor Mrs. Baker testified they noticed the kennels in late September, as the dissent says. They testified that they saw temporary kennels which Mr. King himself described both as “little bitty pens” and as “big”; the Bakers did not realize until October that the Kings were building extensive concrete dog kennels and runs for a pit bull and sharpei breeding business. Mrs. Baker testified she first complained to Mrs. King about barking dogs because she did not know they were building kennels; as soon as she saw the Kings were building kennels, she complained to them. According to Mr. King, building the kennels and dog runs consisted of pouring concrete and erecting chain link fencing. The Kings testified they poured concrete in October and Mrs. King testified the Bakers complained right before Halloween.

The Bakers are complaining more about the number of dogs being kept in the kennels than the presence of the kennels. The evidence does not establish clearly whether the concrete was poured before Mrs. Baker complained to the Kings, but it does establish unequivocally that, unbeknownst to the Bakers, the Kings kept the dogs in their garage and used two temporary pens until some time in October, and nothing unusual appeared to the Bakers; as soon as the Bakers realized the Kings were building a large number of permanent kennels and runs to keep a large number of dogs for breeding, they complained to the Kings; based on a letter of complaint written by Mrs. Baker to the architectural committee, this was about October 21, 1992. Mr. Baker testified that between the time the Kings moved in and the time the Bakers saw the pens “being constructed,” they did not see all the dogs as they were evidently being kept in the garage; this indicates the pens were “being constructed” before the Bakers understood that kennels were being built for a large number of dogs. Thus, it may or may not be that the concrete was poured and permanent pens erected before the Bakers realized the Kings were building dog kennels for a large number of dogs, but the evidence establishes that the Bakers were not lax in complaining to the Kings as soon as they realized that restrictive covenants were being violated by the presence of a large number of dogs in kennels.

The Bakers unsuccessfully tried to resolve the Kings’ violations of the restrictions via the subdivision control committee. The Bakers alleged that eight dogs (which later increased to fourteen) were unreasonable in number and sought to prohibit the Kings from keeping more than two dogs. The Kings counterclaimed, seeking $25,000 in damages for being discriminated against on account of their race, in violation of 42 USCA § 1982. The Kings admitted at the injunction hearing that they breed pit bulls and sharpeis. Neighbors who do not live next door to the Kings testified they heard no noise and were not offended by the Kings’ maintenance of dog kennels, but there was evidence the dogs and kennels create a substantial detriment to the Bakers next door and that the dogs barked at nearly every sound, even to Mrs. Baker’s shaking out rugs on her porch; and the Bakers could not keep their door open to their screened porch.

The trial court decreed that the Kings could keep no more than two dogs and that all pens, enclosures, concrete pads, and fencing around the pens were to be removed. The court awarded the Bakers $750 attorney fees and dismissed the Kings’ counterclaims. Appellants King enumerate the rulings as error, along with the enforcement of restrictive covenants as racial discrimination and the grant of equitable relief without a jury trial. They filed this appeal in the Supreme Court, which transferred the case here, per Pittman v. Harbin Clinic Prof. Assn., 263 Ga. 66 (428 SE2d 328) and Beauchamp v. Knight, 261 Ga. 608 (409 SE2d 208). Held:

1. This case is in the nature of a declaratory judgment action involving legal issues and framing equitable remedies. See Beauchamp, supra. The trial court did not err in declaring relief to appellees without the requested jury trial. This case was properly disposed of by declaratory judgment in the form of an injunction, and by dismissal of appellants’ counterclaims, for no issue of fact remained for jury resolution. See OCGA §§ 9-11-12 (c); 9-11-56; 9-4-5; 9-4-6. See also Guhl v. Davis, 242 Ga. 356 (249 SE2d 43). The right to a jury trial in a declaratory judgment action arises only if there is an issue of fact which requires submission to a jury and jury trial has not been waived. OCGA §§ 9-4-5; 9-4-6. Moreover, appellants did not insist on the right to a jury trial before the trial court’s order was issued after a full hearing.

2. Appellants contend their counterclaims were improperly dismissed because they were not before the trial court at the injunction hearing; and that dismissal of their counterclaims was racial discrimination directed at ousting them from the neighborhood. However, evidence was offered on the Kings’ counterclaims for racial discrimination, the issue was explored in detail, and no issue of fact remained for a jury. See OCGA § 9-4-5; Guhl, supra. The evidence showed the subdivision is populated by about 10 to 20 percent black persons. When Mrs. Baker sent a letter to the subdivision control committee prior to litigation, in addition to seeking enforcement of the restrictive covenants as to appellants’ maintenance of eight dogs in pens and runs, she noted that the maintenance of an auto repair enterprise on the other side of the Kings’ lot may have induced the Kings to build a fence in their front yard in violation of restrictive covenants and that “maybe [that] problem next to [the Kings] should also be corrected”; and she suggested restrictions be enforced as to other residents who allow their pets to run loose. She complained specifically that the Kings’ maintenance of dogs in pens and runs next door to her house had damaged its value and salability. The evidence established beyond any material issue of fact that the Bakers’ objection is to the Kings’ dogs and dog pens, not to the Kings, and the reason the Bakers sought enforcement of the covenants against the Kings and not against others is that the Kings live next door to them.

The evidence also showed the Bakers visited the Kings and tried amicably to resolve matters by having the Kings abide by the covenants. There is no evidence that the Bakers sought to oust the Kings from the neighborhood or that the Kings were targeted because of their race. The order of the trial court directing the Kings to abide by the covenants accords with the law and does not oust them from their property. The covenants themselves do not discriminate against appellants on the basis of race, color or creed. See OCGA § 44-5-60 (d) (3).

3. The trial court did not err in ordering appellants to abide by the restrictive covenants. A purchaser of land is conclusively charged with notice of restrictive covenants contained in a deed which constitutes one of the muniments of his own title (Reeves v. Comfort, 172 Ga. 331 (157 SE 629)); and where the covenant is recorded, as in this case, the purchaser has legal notice of it even if it is not stated in his own deed, for he takes no greater interest than his predecessor had. O’Neill v. Myers, 148 Ga. App. 749 (2) (252 SE2d 638).

The Kings do not have a superior equity merely because they had spent $3,000 building dog pens after or slightly before the Bakers complained and before the Bakers sought injunctive relief, or because the neighborhood subcommittee did not resolve Mrs. Baker’s complaint. The principle of laches in these cases is based on a complaining party’s failure to voice any objection while observing the offending party expend large sums of money building a permanent structure in violation of restrictive covenants. In Bales v. Duncan, 231 Ga. 813 (204 SE2d 104); Davies v. Curry, 230 Ga. 190 (196 SE2d 382); and Black v. Barnes, 215 Ga. 827 (114 SE2d 38), the complaining parties made no objection until after the offending parties had expended much money and construction building permanent large buildings of an immovable nature, and suffered actual detriment, on the failure of anybody to complain and in reliance on their right to use the buildings. The determining factor in those cases was not that the complainant did not file suit until after the other party expended large sums of money, but that the complainant made no complaint at all while at length observing the other party spend large sums of money building structures of a permanent nature.

The fact that the Kings erected “temporary” structures did not make it immediately apparent to the Bakers that the Kings intended to maintain a large number of dogs on their property. The evidence shows that the Kings first kept the dogs in one building; what the Bakers saw was the puzzling sight of the Kings continuously walking the same dog in and out of the structure; finally, the Bakers realized this was not one dog being walked excessively, but that the Kings were walking several dogs which looked alike. Unlike the parties in the cases just cited, the Bakers did not then sit and do nothing while the Kings built permanent dog pens. They complained to the Kings and to the neighborhood subcommittee as soon as they realized the Kings were building or had built permanent pens to keep a large number of dogs. The evidence establishes that it was not the Bakers’ fault that the Kings built the pens and that the Kings bought the property without checking the restrictive covenants, after being misinformed that they could maintain a large number of dogs on the property. Nor is it controlling that the subcommittee failed to act, for the restrictive covenants expressly give the right to enforcement at law. The statement in Bacon v. Edwards, 234 Ga. 100, 103 (214 SE2d 539), that “[a] mere objection or protest, or a mere threat to take legal proceedings is not sufficient to exclude consequences of laches or acquiescence,” does not mean laches will attach even when a complaint is made.

What Bacon said altogether was, “[i]n determining whether there has been laches, there are many factors to be considered, including the sufficiency of the excuse offered in extenuation of the delay in bringing suit. [Cits.]” Id. Bacon affirmed a jury verdict enforcing restrictive covenants even though the complaining parties did not “voice an objection” (see Bacon at 101) until months after they noticed the other parties digging for construction within five feet of their property, after excavation and after footings and brick foundation and a concrete slab were laid and studs were erected; they did not file suit until nearly ninety percent of the building had been completed, seven or eight months after they first noticed the construction. In Bacon, the Supreme Court found Bales, supra, Davies, supra, and Black, supra, insufficient to require reversal of a jury verdict upholding the restrictive covenants; according to Bacon, those earlier cases do not stand for the idea that the mere delay of the complaining party of one month or eight months in filing suit for injunction will invoke the doctrine of laches.

As Bacon says, laches is normally a question for a jury and, as we have noted in Division 1, supra, the court may decide that question like any other where no genuine issue of fact remains for a jury. Unlike the complaining parties in Bacon, Bales, Davies, and Black, supra, the Bakers complained to the Kings and to the neighborhood subcommittee as soon as they realized the Kings intended to keep a large number of dogs on their property. The Bakers did not file suit immediately because they wanted to resolve the issue by subcommittee, as the covenants provide. To suggest that the Kings acquired equitable rights in their violations merely because théy managed to build the dog pens before the Bakers realized that they intended to keep many dogs in kennels and runs in a breeding business, or because the Bakers tried to avoid litigation by settling the dispute within the neighborhood, is to say that any restrictive covenant can be successfully violated, even in the face of complaints, merely by expending a large sum of money to erect a structure before the complaining party can figure out what is happening or can get to the courthouse to file a lawsuit. This would stand the law of restrictive covenants on its head.

As for the fact that the Kings say they spent in excess of $3,000 building the permanent pens and runs, Mr. Baker testified that the 12 dog kennels and breeding business “most definitely” affected the value of his property, because “I don’t think anybody in their right mind would buy a house in a housing development with dog pens that look like a dog pound.” He also testified that he would suffer irreparable damage if his neighbor is allowed to maintain the dog kennels.

The trial court did not err in the facts of this case by issuing an injunction against the Kings to enforce the restrictive covenants.

4. The evidence supports the award of attorney fees to appellees. The restrictive covenants allow enforcement by proceedings in law and equity or to recover damages. Nothing in OCGA § 13-6-11 limits attorney fee awards to actions at law or excludes equity actions from its application. There is no logical reason that such actual damages should be unavailable to equity actions as a remedy, and there is no reason the plaintiffs should be forced to choose between enforcing the covenants at equity or recovering their actual damages including attorney fees in an action at law which will not afford them complete relief. Generally, equity follows the law (OCGA § 23-1-6), and equity seeks to do complete justice and may give full relief to all parties in relation to the subject matter. This would include attorney fees authorized by OCGA § 13-6-11.

Although the Supreme Court held in Glynn County Fed. Employees Credit Union v. Peagler, 256 Ga. 342 (3) (348 SE2d 628) that attorney fees were not authorized under OCGA § 13-6-11 because plaintiff sought only equitable relief, that holding was not supported by citation or reasoning, and in the more recent case of Clayton v. Deverell, 257 Ga. 653 (4), (5) (a) (362 SE2d 364), the court holds that attorney fees may be awarded under OCGA § 13-6-11 in an equitable action. In numerous other cases the Supreme Court “has specifically held that attorney fees are allowable under this section in equity actions. Jones v. Spindel, 239 Ga. 68 (235 SE2d 486) (1977); Grant v. Hart, 197 Ga. 662 (30 SE2d 271) (1944).” C & S Nat. Bank v. Has- kins, 254 Ga. 131, 137 (4) (327 SE2d 192). When the Supreme Court decided Clayton v. Deuerell, supra, it chose not to follow its prior decision in Glynn County Fed. Employees Credit Union v. Peagler, and we are bound to follow the same course. Moreover, Glynn County Fed. Employees Credit Union does say that attorney fees are recoverable where authorized by statute or by conduct, as in the case here.

5. The trial court erred in ruling that appellants could not keep more than two dogs on their property. The restrictive covenant provides that the subdivision control committee “shall determine in its discretion” whether a number of animals on a particular property is reasonable. Although the restrictive covenants authorize their enforcement at law and equity, the restrictive covenants may not be enlarged upon by judicial construction and the ground for any interference by the courts must be clear and indubitable. England v. Atkinson, 196 Ga. 181, 184 (26 SE2d 431). Although the Bakers suggested that the control committee had decreed that two dogs are the maximum allowed, no competent evidence is cited that the committee made such a decree. A covenant plainly expressed cannot be broadened by parol proof of a covenantor. Miller v. Desverges, 75 Ga. 407. The covenant plainly vests the decision as to what is a reasonable number of dogs in the discretion of a neighborhood committee and in no one else; the court could not enlarge upon this right in favor of appellees (England, supra), and the mere fact that the committee had not acted does not give the trial court authority to act for the committee. The part of the judgment prescribing the number of dogs appellants may keep is vacated, and the case is remanded for appropriate order stating that appellants are directed to comply with the restrictive covenants which vest discretion in the neighborhood committee to determine what is a reasonable number of dogs on the particular property.

6. The trial court’s order directing appellants to remove all pens is affirmed, as this restriction is expressed in the covenants and is not enlarged upon by the trial court.

Judgment affirmed in part and reversed in part.

Pope, C. J., McMurray, P. J., Beasley, P. J., and Johnson, J., concur. Andrews, Blackburn, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur in part and dissent in part.

Blackburn, Judge,

concurring in part and dissenting in part.

I concur with Divisions 1 through 3 and Divisions 5 and 6 of the majority opinion. I agree that the trial court’s findings on the issue of laches should be affirmed and the trial court’s determination of the number of dogs the Kings can reasonably maintain must be reversed. However, I must respectfully dissent from Division 4 of the majority opinion.

Decided July 13, 1994

Reconsideration denied July 29, 1994

Millard C. Farmer, Jr., for appellants.

Harwell, Brown & Harwell, Ronald H. Harwell, Levine & Block, Stephen H. Block, Webb, Carlock, Copeland, Semler & Stair, Johannes S. Kingma, Drew, Eckl & Farnham, Richard T. Gieryn, Jr., for appellees.

The trial court erred in awarding attorney fees in this action for equitable relief. Attorney fees are recoverable only where authorized by statute or contract. Where, as in this case, the complaint set out only an action in equity, a party is not entitled to attorney fees under OCGA § 13-6-11. Glynn County Fed. Employees Credit Union v. Peagler, 256 Ga. 342 (3) (348 SE2d 628) (1986). Moreover, the covenant at issue does not provide for the recovery of attorney fees in enforcing its provisions. While the majority asserts that the Supreme Court’s decisions in Clayton v. Deverell, 257 Ga. 653 (362 SE2d 364) (1987); C & S Nat. Bank v. Haskins, 254 Ga. 131 (327 SE2d 192) (1985); Jones v. Spindel, 239 Ga. 68 (235 SE2d 486) (1977); and Grant v. Hart, 197 Ga. 662 (30 SE2d 271) (1944), authorize a recovery of attorney fees in the present action for equitable relief only, in each of those cases, the plaintiffs/petitioners sought monetary damages in addition to equitable relief and therefore, attorney fees were appropriate in those cases. The award of attorney fees against the Bakers should be reversed however, as only equitable relief was sought in this case.

I am authorized to state that Judge Andrews, Judge Smith and Senior Appellate Judge Harold R. Banke join in this dissent.


author: Smith, Judge. McMurray, Presiding Judge,

text:
    A94A0087.
    STATE ETHICS COMMISSIONER v. MOORE.
    (447 SE2d 687)
   Smith, Judge.

This is a discretionary appeal from an order of the Superior Court of Glynn County reversing a decision of the State Ethics Commission under the Ethics in Government Act, OCGA § 21-5-1 et seq. The Commission found that Moore, a candidate for a commissioner’s post in Glynn County, inadvertently failed to report certain “common source” campaign contributions as required by OCGA § 21-5-30 (d) on the financial disclosure reports made pursuant to OCGA § 21-5-34 (a) (3), and assessed a fine of $250 against Moore. The superior court reversed the Commission on the basis of an error of law, and we affirm. OCGA § 50-13-19 (h) (4). OCGA § 21-5-30 (d) provides: “Where separate contributions of less than $101.00 are knowingly received from a common source, such contributions shall be aggregated for reporting purposes. For purposes of fulfilling such aggregation requirement, members of the same family, firm or partnership or employees of the same person . . . shall be considered to be a common source.” This Code section must be read in pari materia with OCGA § 21-5-34, governing disclosure reports, which provides: “A candidate for county office or the chairperson or treasurer of such candidate’s campaign committee shall file the required campaign contribution disclosure reports with the election superintendent in the respective county of election.” OCGA § 21-5-34 (a) (3). The Commission found that Moore received contributions at a fundraising reception from several persons who were connected by blood, marriage or business contacts with others who attended the event. While Moore knew of these relationships, her campaign treasurer testified that he did not, and therefore did not list them as “common source” contributions. Contrary to the dissent’s assertions, the treasurer testified specifically that he was unaware of the family or business relationships of the contributors as well as the definition of what constituted a “common source” at the time he filed the report, and at least one member of the Commission noted that the treasurer did not intentionally violate the law.

In its order, the superior court correctly noted the specific wording of OCGA § 21-5-34 (a) (3). Other provisions of the Act require that the candidate or officer make the required report. See, e.g., OCGA §§ 21-5-50; 21-5-34 (d), (e). In contrast, subsection (a) (3) permits financial disclosure reports to be filed by the candidate, a campaign chairperson or a campaign treasurer. In this case, the campaign treasurer filed and signed the reports. There was no evidence that Moore prepared or reviewed the reports, and there was no evidence that the campaign treasurer had any knowledge regarding the common source contributions.

“The election law is in derogation of the common law and must be strictly construed.” Schloth v. Smith, 134 Ga. App. 529, 530 (3) (215 SE2d 292) (1975). Moreover, when a statute imposes a fine or penalty, strict construction is required in favor of the person penalized. “The applicable rule of statutory construction is that forfeitures and penalties are not favored and statutes relating to them must be strictly construed, and in a manner as favorable to the person against whom the forfeiture or penalty would be exacted as is consistent with fair principles of interpretation.” (Citations and punctuation omitted.) Georgian Art &c. v. Gwinnett County Bd. of Tax Assessors, 211 Ga. App. 510, 511 (439 SE2d 687) (1993). While asserting the general rule that statutes should be construed in order to give effect to legislative intent, the dissent ignores the case law requiring that those who will be subjected to criminal or quasi-criminal penalties be given fair warning of what constitutes punishable conduct.

Strictly construing the Act as we must, we find no authority under the language of OCGA § 21-5-34 (a) (3) to impose a penalty on Moore for the conduct of her campaign treasurer in filing an inaccurate report. A campaign committee or treasurer may make the financial report under that subsection, and there is no corresponding requirement that the candidate personally verify or review the contents of that report. Since the treasurer was authorized to file and sign the reports, and based his disclosure of common source contributions on his own personal knowledge, only he could be the “violator” for the purpose of imposition of penalties under OCGA § 21-5-6 (b) (14).

Contrary to the dissent’s assertion that a “dodge” was involved, the trial court and three members of the Commission noted that there was no evidence of fraud, intentional concealment, or misrepresentation on the part of Moore. We need not consider here whether an intentional or fraudulent effort to circumvent the provisions of the Act would produce a different result. Nor do we reach the issue of whether or to what extent the conduct charged to Moore was in fact a violation of the provisions of the Act.

The decision of Sta-Power Indus, v. Avant, 134 Ga. App. 952, 956 (216 SE2d 897) (1975), cited by the dissent, is wholly inapposite. That case involves the imposition of the civil sanction of dismissal for failure to obey a court order to respond to discovery under OCGA § 9-11-37. Moreover, it addresses the authority of an attorney to act on behalf of his client and the client’s obligation to provide information to his attorney. We find no authority in Sta-Power for extending the duties inherent in the attorney-client relationship to the relationship of candidate and campaign worker. If imputed knowledge is to be made the basis of a fine or penalty, the intent of the. legislature must be made abundantly clear. Such is not the case here.

The dissent’s complaint that the Commission made no official finding with respect to Moore’s campaign treasurer simply demonstrates the difficulties inherent in imputing, after the fact, quasi-criminal responsibility based on the actions of another who is not charged. Moreover, without such a finding of knowledge on the part of the treasurer, there is no basis upon which the charge against Moore can stand under the agency theory advocated by the dissent.

Disclosure of the sources of a political candidate’s campaign funds is an important part of the legislative purpose of the Ethics in Government Act, and the stated purpose of the Act is to ensure fair elections and protect the integrity of the democratic process by placing candidates under scrutiny during the campaign. OCGA § 21-5-2. However, as the dissent concedes, where the language of the statute is plain and unequivocal, judicial construction is not only unnecessary but forbidden. City of Jesup v. Bennett, 226 Ga. 606, 609 (2) (176 SE2d 81) (1970). We cannot, as the dissent contends, use a general statement of intent from another part of the Act to change the clear language and plain meaning of OCGA § 21-5-34, particularly in a case involving the imposition of a fine or penalty. See Caminetti, supra at n. 3.

The language of the statute is facially reasonable and capable of a logical construction. The legislature may well have determined that the elections for county office provided for under OCGA § 21-5-34 (a) (3) call for a different level of reporting requirements than the municipal and other elections provided for elsewhere in the Act. Fine distinctions are drawn from section to section in the Act regarding which persons are authorized to file the required campaign disclosure reports. We must assume, in the absence of evidence to the contrary, that these distinctions are intended by the General Assembly, and construe them as written. If there is a need for change in the filing requirements under OCGA § 21-5-34 (a) (3), the responsibility for clarification or correction of explicit provisions of the statute must rest with the legislature, not the courts. Snapper Power Equip. Co. v. Crook, 206 Ga. App. 373, 375 (1) (425 SE2d 393) (1992). We therefore must affirm the ruling of the superior court.

Judgment affirmed.

Pope, C. J., Andrews, Johnson and Blackburn, JJ., concur. McMurray, P. J., Birdsong, P. J., Beasley, P. J., and Senior Appellate Judge Harold R. Banke dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as I do not agree with the majority’s view that a candidate for public office or public office holder covered by the Georgia Ethics in Government Act may dodge financial disclosure laws by delegating reporting responsibility to a campaign treasurer who purportedly does not recognize contributions the candidate knows must be reported. It is my view that Georgia’s Ethics in Government Act places ultimate responsibility for accurately reporting information regarding campaign contributions upon candidates applying for public service.

There is no dispute that ample evidence supports the finding of the State Ethics Commission that Karen F. Moore failed to disclose campaign contributions she knew had to be reported under OCGA § 21-5-30 (d). However, the majority affirms reversal of this ruling based on the perception that OCGA § 21-5-34 (a) (3) does not “impose a penalty on Moore for the conduct of her campaign treasurer in filing an inaccurate report.” The majority points out that this Code subsection allows either a candidate for public office or the candidate’s campaign treasurer to submit the required disclosure report and thus reasons that Moore was relieved of any obligation to “personally verify or review the contents of that report” because the report was filed by her campaign treasurer. I cannot go along with this logic as it allows avoidance of the Ethics in Government Act via delegation (to a subordinate) of the duty imposed by OCGA § 21-5-30 (d).

“ ‘ “It is, of course, fundamental that ‘the cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.’ Ford Motor Co. v. Abercrombie, 207 Ga. 464, 467 (62 SE2d 209) [(1950)]. . City of Jesup v. Bennett, 226 Ga. 606, 608 (176 SE2d 81) (1970).’ Wall v. Board of Elections of Chatham County, 242 Ga. 566, 573-574 (250 SE2d 408) (1978). Although ‘the legislative intent prevails over the literal import of words’ (Drake v. Thyer Mfg. Corp., 105 Ga. App. 20, 22 (123 SE2d 457) (1961)), ‘where a . . . statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. (Cits.)’ Rayle Electric Membership Corp. v. Cook, 195 Ga. 734, 735 (25 SE2d 574) (1943). ‘In other words the language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent.’ Caminetti v. United States, 242 U. S. 470, 490 (37 SC 192, 61 LE 442) (1917); Samuelson v. Susen, 576 F2d 546, 552 (3d Cir. 1978).” Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).

The Georgia General Assembly clearly states that the intent of the Ethics in Government Act is to require public disclosure of information which will allow “the public to determine whether significant private interests of public officers have influenced the state’s public officers to the detriment of their public duties and responsibilities. . . .” OCGA § 21-5-2. To this end, the legislature enacted OCGA § 21-5-34 (a) (3) which requires public disclosure of campaign contributions to a candidate for county office. OCGA § 21-5-3 (3). Such contributions exceeding $101 during a calendar year must be listed in a campaign contribution disclosure report. To avert circumvention of this reporting requirement, OCGA § 21-5-30 (d) provides that “[w]here separate contributions of less than $101.00 are knowingly received from a common source, such contributions shall be aggregated for reporting purposes.” However, the majority provides an avenue for averting the reporting requirements of OCGA § 21-5-30 (d) via a strained interpretation of the conjunctive word, “or,” in OCGA § 21-5-34 (a) (3).

According to the majority, the word, “or,” as applied in OCGA § 21-5-30 (d), means that a candidate for public office may avert responsibility under the Ethics in Government Act by simply delegating responsibility to an unknowing, ineffective or unscrupulous subordinate. In fact, the majority’s interpretation of OCGA § 21-5-30 (d) means that a candidate for public office is not even required to advise such a subordinate of facts the candidate knows must be reported. The majority justifies this position by stating that “[f]ine distinctions are drawn from section to section in the [Ethics in Government] Act regarding which persons are authorized to file the required campaign disclosure reports.” It is my view that this “nit picking” logic is unreasonable and that the majority’s reading of OCGA § 21-5-34 (a) (3) renders impotent the purpose of OCGA § 21-5-30 (d), i.e., to provide public access to information which will allow “the public to determine whether significant private interests of public officers have influenced the state’s public officers to the detriment of their public duties and responsibilities. . . .” OCGA § 21-5-2.

Decided July 15, 1994

Reconsideration denied July 29, 1994

Michael J. Bowers, Attorney General, Dennis R. Dunn, Senior Assistant Attorney General, for appellant.

Lissner, Killian, Cunningham & Boyd, Robert P. Killian, for ap-pellee. Kathlyn McCluskey, amicus curiae.

The majority cites Schloth v. Smith, 134 Ga. App. 529, 530 (2) (215 SE2d 292), in support of the view that a strict reading of OCGA § 21-5-34 (a) (3) allows candidates to foist responsibility under the Ethics in Government Act. This reliance is misplaced. In Schloth, this Court dismissed a judicial candidate’s challenge to the results of an election, holding that the nominee failed to comply with the statutory time period specifically prescribed for contesting such elections. Id. at 530. This holding is not dispositive in the case sub judice as nothing in OCGA § 21-5-34 (a) (3) specifies that candidates for public office (such as Moore) are relieved of responsibility for accurately reporting “common source” campaign contributions. This Code subsection simply provides an avenue for a candidate’s delegation of the duty to file a campaign contribution disclosure report to a subordinate. Any view to the contrary, is inconsistent with the general rule that a principal may authorize an agent to act for the principal but may not thereby foist responsibility to act and the consequences of any failure to so act. See Sta-Power Indus, v. Avant, 134 Ga. App. 952, 956 (216 SE2d 897).

I would reverse the superior court’s order reversing the State Ethics Commission’s finding that Moore knowingly failed to comply with the reporting requirements of OCGA § 21-5-30 (d).

I am authorized to state that Presiding Judge Birdsong, Presiding Judge Beasley, and Senior Appellate Judge Harold R. Banke join in this dissent.

       The dissent complains that the Commission made no official finding with respect to the treasurer. This is not surprising because he was charged with no offense, was not a party to the proceedings, and was not required to refute a charge which was never made against him.

       On motion for reconsideration before the superior court, the Commission attempted to present evidence of violation of a different provision of the Act, OCGA § 21-5-34 (e). As noted by the superior court, the relevant facts and the applicable statutory provision were not raised in the original charge nor argued before the Commission, and cannot be addressed upon petition for review under OCGA § 50-13-19 (c). Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572, 573 (1) (396 SE2d 562) (1990).

       In fact, Caminetti v. United States, 242 U. S. 470, 490 (37 SC 192, 61 LE 442) (1917), cited in one of the dissent’s cases, clearly holds that “the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain . . . the sole function of the courts is to enforce it according to its terms.” 242 U. S. at 485. Contrary to the dissent’s position here, the Caminetti court declined to amend the plain language of a criminal statute, despite a differing general statement of intent in the preamble. 242 U. S. at 489-490. It is instructive to note that none of the other decisions cited by the dissent for its proposition involve the imposition of criminal or quasi-criminal penalties.

       The Act has been amended on numerous occasions since its enactment, most recently in 1994. See Ga. L. 1994, pp. 258, 277. Had the legislature intended to change the provisions of OCGA § 21-5-34 (a) (3), it has had ample opportunity to do so. See State v. Peters, 213 Ga. App. 352 (444 SE2d 609) (1994).

       The majority improperly concludes that Moore “inadvertently failed to report certain ‘common source’ campaign contributions . . and that Moore’s campaign treasurer (Robert L. Crouch, Jr.) did not deliberately file false campaign contribution reports. The State Ethics Commission is the sole arbiter of the facts in resolving such issues, not a reviewing court. See Ga. Pub. Svc. Comm. v. Southern Bell, 254 Ga. 244, 247 (327 SE2d 726) (1985). In the case sub judice, the State Ethics Commission made no finding as to whether Moore “inadvertently failed to report certain ‘common source’ campaign contributions . . .” or whether her campaign treasurer knowingly filed false campaign contributions reports. The State Ethics Commission findings of fact simply provide that Moore reviewed the relevant list of campaign contributors; that Moore was aware that this list included reportable “common source” contributions; that “[o]n January 7,1992, Ms. Moore submitted her 1991 year end supplemental disclosure report[; that this] report was prepared by her treasurer, but not reviewed by Ms. Moore prior to filing]; that'this] report did not identify any contributions as being aggregated due to their having a ‘common source’ as defined under O.C.G.A. § 21-5-30 [and that a] subsequent March 23, 1992, amendment to this report also did not identify specifically any ‘common source’ contributions.” It is my view that the majority oversteps this Court’s authority by weighing evidence presented to the State Ethics Commission. However, assuming this Court has such factfinding power, my review of the administrative hearing transcript reveals evidence which authorizes a finding that Moore recklessly disregarded her duty under the Ethics in Government Act by failing to review two campaign contribution reports submitted on her behalf, by failing to make sure that her agent in charge of filing campaign contributions reports was fully apprised of facts she knew were necessary for filing an accurate report and by failing to make sure that her campaign treasurer was versed as to basic requirements of the Ethics in Government Act. This latter omission is demonstrated by Crouch’s testimony that he “wouldn’t know a common source contribution if he saw it. . , .”


text:
    A94A0090.
    UNDERGROUND FESTIVAL, INC. v. McAFEE ENGINEERING COMPANY.
    (447 SE2d 683)
   Smith, Judge.

Underground Festival, Inc. (“UFI”) appeals from a judgment entered on a jury verdict in favor of McAfee Engineering Company in a lien foreclosure action brought by McAfee.

The evidence at trial showed that UFI leased certain space in Underground Atlanta to DBA of Atlanta, Inc., to be used to operate a restaurant and bar known as Bourbon Street Beat. DBA’s officers were William D. Koehler, president, and Richard Fraser, corporate secretary. The lease was signed by Koehler in his capacity as president. At the time the lease was signed, the outer shell of Underground was being completed by Underground Festival Development Corporation. The interior space was to be designed and built by DBA under the terms of its lease with UFI, which provided for a “construction allowance” for DBA’s expenses in improving the leasehold premises as well as certain initial operating expenses. DBA’s construction allowance was $800,000.

Koehler oversaw DBA’s design, construction, and startup of the leased space. He contracted with McAfee Engineering Company, a California corporation, to design and install an HVAC system and grease hoods in the leased space. In drafting the contract, McAfee relied on blueprints of the space prepared by DBA’s architect. Because the architect labeled the blueprints “F & K of Atlanta, Inc.,” McAfee erroneously typed that corporate name into the contract Koehler was to sign. Koehler did not notice the error and signed the contract as president of F & K of Atlanta, Inc., which is a nonexistent entity.

McAfee designed and installed the equipment. When it was not paid, it filed a claim of lien against UFI. DBA subsequently filed for bankruptcy protection, naming McAfee as a creditor. McAfee commenced this action to foreclose its lien, and the case proceeded to trial. The jury returned a verdict in favor of McAfee in the amount of its claim, $126,100.

In seven enumerations, UFI contends the trial court erred in denying its motion for a directed verdict and in entering judgment on the jury’s verdict.

1. UFI contends McAfee was not entitled to file a lien against its property because no contract existed between it and UFI or its tenant, DBA. We do not agree.

OCGA § 44-14-361 (b) provides that a lien such as McAfee claimed “may attach to the real estate for which the labor, services, or materials were furnished if they are furnished at instance of the owner, contractor, or some person acting for the owner or contractor.” This court has interpreted that Code section to require that a contractual relationship exist between a materialman and one contracting with the owner to prevent a stranger from ordering work done upon real estate and charging the owner. See, e.g., D & N Elec. v. Underground Festival, 202 Ga. App. 435, 438-439 (4) (414 SE2d 891) (1992). It is true that the contract Koehler signed with McAfee shows him to be the president of a corporation named “F & K of Atlanta, Inc.” and does not show him to be the president of DBA, which had the necessary contractual relationship with UFI. This does not mean, however, that no contractual relationship between McAfee and DBA existed.

The evidence presented at trial showed that DBA ratified Koeh-ler’s contract with McAfee. “A ratification by the principal shall relate back to the act ratified and shall take effect as if originally authorized. A ratification may be express or implied from the acts or silence of the principal.” OCGA § 10-6-52. Koehler testified at trial that DBA ratified the contract. In addition, circumstantial evidence was presented regarding the corporation’s conduct which implied ratification. DBA submitted McAfee’s invoices to UFI for payment from its construction allowance; Koehler and Fraser wrote a letter to UFI acknowledging that DBA owed $126,100 to McAfee; and DBA listed McAfee as a creditor in that amount in its bankruptcy filing.

Contrary to UFI’s contention and that of the dissent, DBA had complete authority to ratify this contract. UFI and the dissent misconstrue and misapply the rule derived from Broyles v. Kirkwood Ct. Apts., 97 Ga. App. 384 (103 SE2d 97) (1958), which cites Greene v. Golucke, 202 Ga. 494 (2) (43 SE2d 497) (1947). The rule is that “[a]n act can not be subject to ratification unless done in behalf of the person adopting it and attempting to ratify it. [Cit.]” Lemmons v. City of Decatur, 215 Ga. 647, 648 (112 SE2d 597) (1960). Despite the fact that the contract executed by Koehler mistakenly mentioned a different, nonexistent corporation, the evidence shows unmistakably that Koehler intended to act in behalf of DBA.

Moreover, it is undisputed that DBA used the equipment installed. “ ‘Where a corporation knowing all of the facts accepts and uses the proceeds of an unauthorized contract executed in its behalf without authority, the corporation may be bound because of ratification. (Cits.)’ [Cits.]” Holliday Constr. Co. v. Sandy Springs Assoc., 198 Ga. App. 20, 21 (2) (400 SE2d 380) (1990). If this is true where the contract is unauthorized and the corporation seeks to avoid responsibility, it is certainly so when the contract was in fact authorized, the corporation does not deny that it ratified the contract, but another name was mistakenly placed on the contract by the material-man.

The principle applicable here is analogous to that governing misnomer situations, where “the important thing is to determine what corporation the parties intended, for it is the intent of the parties that controls. Error in the use of the corporate name will not be permitted to frustrate the intent which the name was meant to convey, and to find out the identity of the corporation intended, resort may be had to evidence aliunde.” (Citations and punctuation omitted.) Pinson v. Hartsfield Intl. Commerce Center, Ltd., 191 Ga. App. 459, 461 (382 SE2d 136) (1989).

Because Koehler intended to contract in behalf of DBA and DBA could and did ratify the contract with McAfee, that contract provides the necessary basis for enforcing McAfee’s lien. The trial court did not err in denying UFI’s motion for directed verdict or in entering judgment on the jury’s verdict on this ground.

2. UFI’s contention that McAfee failed to fulfill a condition precedent to foreclosure of its lien against UFI because it did not commence an action against DBA prior to its lien foreclosure action is without merit.

The procedure for creating and enforcing liens is set forth in OCGA § 44-14-361.1. Subsection (a) (3) provides that in order to enforce a lien against an owner, a subcontractor must first commence an action against the defaulting contractor to recover the amount of its claim within 12 months. However, subsection (a) (4) relieves the foreclosing subcontractor from this requirement where, as here, the contractor is bankrupt. OCGA § 44-14-361.1 (a) (4) provides that in such case the subcontractor “may enforce the lien directly against the property so improved in an action against the owner thereof, if filed within 12 months from the time the lien becomes due. . . .”

Melton v. Pacific Southern Mtg. Trust, 241 Ga. 589 (247 SE2d 76) (1978), relied on by UFI, does not require a contrary result. The Melton court emphasized the relief provided under the statute when the contractor declares bankruptcy. No action need be filed against the contractor at any time. Melton holds only that the subcontractor is not required to refrain from commencing an action against a bankrupt contractor; it may file a claim in the bankruptcy action within the appropriate time period. If it does so, it has “commenced an action” within the meaning of OCGA § 44-14-361.1 (a) (3). Melton, supra at 591-592.

Here, McAfee both filed a claim in DBA’s bankruptcy action and brought its action against the owner within 12 months. The trial court properly denied UFI’s motion for a directed verdict and entered judgment on the jury’s verdict on this ground.

3. Contrary to UFI’s assertion that the funds in the construction allowance were exhausted by proper disbursements, this issue was contested at trial. UFI had the burden of proving proper payments. D & N Elec., supra, 202 Ga. App. at 437-438 (3). There was evidence on both sides of the issue. Although UFI presented some evidence of payments and the circumstances surrounding them, McAfee also presented evidence showing that funds from the allowance were retained by UFI and applied to items originally permitted under the standard lease language but specifically deleted in a rider to the lease. These items included approximately $24,000 for pre-opening expenses and grand opening expenses, $10,830 for UFFs work hooking up a sprinkler system, and approximately $80,000 in unpaid rent.

Because the evidence conflicted, the trial court properly denied UFI’s motion for a directed verdict on this issue. The jury was not required to accept UFI’s evidence. There was some evidence to support the jury’s verdict, and on this ground we must affirm the judgment entered on that verdict. See Mashburn v. Wright, 204 Ga. App. 718, 719 (420 SE2d 379) (1992).

4. UFI contends the trial court erred in denying its motion for directed verdict because McAfee failed to prove it complied with the Nonresident Contractors Act, OCGA § 48-13-30 et seq.

The Act requires nonresident contractors doing business in this state to register with the Commissioner of Revenue whenever the total price of a contract is greater than $10,000, OCGA § 48-13-31, and to obtain a bond ensuring payment of state and local taxes before commencing performance of a construction contract. OCGA § 48-13-32 (a), (b). Our courts have held that a nonresident contractor may substantially comply with the Act by registering after the completion of a project. Clover Cable &c. v. Heywood, 260 Ga. 341, 343-344 (3) (392 SE2d 855) (1990). McAfee showed late registration with the Commissioner of Revenue. UFI argues that because McAfee did not present proof that it paid all taxes, substantial compliance was not shown. We do not agree.

Noncompliance with the Act is an affirmative defense asserted by UFI. Although it need not be pled because it is not specifically enumerated in OCGA § 9-11-9, UFI has the burden of proving the elements of the defenses it asserts. Carver v. Jones, 166 Ga. App. 197, 198 (1) (303 SE2d 529) (1983). It failed to present evidence that McAfee had not paid all taxes due. Therefore, the trial court properly denied UFI’s motion for a directed verdict on this issue.

5. We have considered UFI’s remaining enumerations of error, and find them to be without merit. The trial court properly denied UFI’s motion for a directed verdict and entered judgment on the jury’s verdict.

Judgment affirmed.

Pope, C. J., Birdsong, P. J., Beasley, P. J., Andrews, Johnson, Blackburn, JJ., and Senior Appellate Judge Har old R. Banke concur, McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

Plaintiff McAfee Engineering Company is not entitled to file a lien against the property of defendant Underground Festival, Inc. since it had no contract with defendant or its tenant, DBA of Atlanta, Inc. “ ‘ “There need be no contract between the materialman and the true owner, but there must be a contract for material with a person who has contracted with the true owner for the erection of the improvements. A contract is necessary to fix the liability of the owner and establish a privity between him and the materialman. A stranger may not order work done upon real estate and thus charge the true owner. . . .” (Cits.)’ Marshall v. Peacock, 205 Ga. 891, 893 (55 SE2d 354) (1949).” D & N Elec. v. Underground Festival, 202 Ga. App. 435, 438-439 (4) (414 SE2d 891).

Prior to the execution of the lease between defendant and DBA of Atlanta, Inc., Koehler, who was president of DBA of Atlanta, Inc., signed a written subcontract agreement with plaintiff. Under this contract, plaintiff agreed to design and install the heating, ventilation, and air conditioning system for a location in Underground Atlanta. However, Koehler purported to sign the subcontract agreement as an agent of “F & K of Atlanta, Inc.,” a non-existent entity. While the majority alters the contract by concluding that parol evidence has probative value to show that Koehler executed the contract while acting as an agent of DBA of Atlanta, Inc., I do not agree that this disregard of the parol evidence rule is appropriate and must respectfully dissent. “Parol evidence cannot ... be admitted ‘to add to, take from, or vary the writing itself.’ Andrews v. Skinner, 158 Ga. App. 229, 230 (279 SE2d 523) (1981).” Buice Grading &c. v. Bales, 187 Ga. App. 263, 265 (370 SE2d 26). See also OCGA § 24-6-1. Even parol evidence admitted without objection is ineffective to vary the terms of a written contract. Cleghorn v. Shields, 165 Ga. 362 (2) (141 SE 55).

The majority’s reliance upon Pinson v. Hartsfield Intl. Commerce Center, Ltd., 191 Ga. App. 459, 461 (382 SE2d 136) is misplaced since the case sub judice does not involve a misnomer of a corporation such as authorizes consideration of evidence outside the writing to identify the intended party at the time of the execution of the contract. In the case sub judice, plaintiff placed the fictitious entity name supplied by Koehler on the contract and apparently intended to contract with that entity. At the time the contract was signed, Koehler knew that this was a fictitious name assigned to a proposed Underground Atlanta project and knew that the fictitious name was not one and the same as DBA of Atlanta, Inc. At the time the contract was signed, Koehler failed to disclose any intent to act on behalf of DBA of Atlanta, Inc. and such hidden intent was disclosed only via parol evidence at trial. Whether, at the time the contract was signed, plaintiff even knew DBA of Atlanta, Inc. existed is not shown. In my view, the majority uses the parol evidence of Koehler’s secret intentions for an improper purpose, to contradict rather than explain the written contract. Jackson v. Brinegar, Inc., 165 Ga. App. 432, 434 (1) 435 (301 SE2d 493). See also United States Fidelity &c. Co. v. Coastal Svc., 103 Ga. App. 133, 136 (4) 137 (118 SE2d 710)

Decided July 15, 1994

Reconsideration denied July 29, 1994

Alston & Bird, John I. Spangler III, Robert L. Crewdson, for appellant.

Shapiro, Fussell, Wedge & Smotherman, David L. Tank, Ronald J. Garber, for appellee.

Based on the preceding view of the evidence in the case sub judice, I would hold that the contract in question could not be ratified by DBA of Atlanta, Inc. since “a contract which does not on its face purport to be made on behalf of a corporation is not subject to ratification for the reason that a principal cannot ratify a contract which is not in the first instance made on its behalf.” Broyles v. Kirkwood Ct. Apts., 97 Ga. App. 384, 386 (103 SE2d 97). Plaintiff argues that the Broyles decision is factually distinguishable. Nonetheless, the legal principle which defendant would draw from Broyles is sound. Stated in other words: “ ‘The doctrine of ratification is not applicable against a person as to an act of one who did not assume to act in his name or under authority from him.’ [Cits.]” Greene v. Golucke, 202 Ga. 494 (2) (43 SE2d 497). See also Lemmons v. City of Decatur, 215 Ga. 647 (112 SE2d 597) and 3 AmJur2d, Agency, § 188. In my view, DBA of Atlanta, Inc. could not ratify the contract since in entering the agreement, Koehler did not purport to act for it. D & N Elec. v. Underground Festival, 202 Ga. App. 435, 438-439 (4), supra; F. S. Assoc., Ltd. v. McMichael’s Constr. Co., 197 Ga. App. 705, 706 (399 SE2d 479).