author: Eldridge, Judge.

text:
    A98A2465.
    HOLZENDORF v. THE STATE.
    (509 SE2d 737)
   Eldridge, Judge.

A jury found Anthony T. Holzendorf guilty of selling cocaine, and he was sentenced to a term of life in prison. Holzendorf appeals from the conviction entered on the verdict, contending there is insufficient evidence to support the verdict. We disagree.

When viewed in a light most favorable to support the verdict, the evidence shows the following: John Cornish, who was a member of the U. S. Navy, was working as an undercover agent for the Naval Investigative Service, a federal law enforcement agency. On February 7, 1994, Cornish went to a residence located at 349 North Orange Edwards Avenue in Kingsland to attempt to buy drugs from a female from whom he previously had purchased drugs. Cornish knocked on the door, and the people inside the house asked who it was. Cornish responded “Juice,” which was a name he previously had used when he purchased drugs from the female.

The female who previously sold Cornish drugs was inside the house with Holzendorf and several other people. Holzendorf asked Cornish what he wanted, and Cornish replied he wanted a “forty.” Holzendorf turned away and then came back with two rocks of crack cocaine wrapped in a napkin. Holzendorf gave Cornish the cocaine, and Cornish gave Holzendorf $40.

Cornish testified that the sale took place in a well-lighted room and that Holzendorf did not have a cap or hat on his head or anything covering his face. Cornish was sure that the individual who sold him the cocaine was Holzendorf.

Derek Lovelady testified that he was familiar with Holzendorf; that he had met Holzendorf in the early part of 1993; and that between that date and February 7, 1994, he had seen Holzendorf between 50 and 100 times. Lovelady further testified that he had seen Holzendorf at 349 North Orange Edwards Avenue on February 7, 1994, as well as on approximately five other occasions, and that Holzendorf had advised him that Holzendorf was residing at that address.

The following evidence was introduced at trial to show Holzendorf had been involved in a similar transaction: Robert Ford, a special agent with the Georgia Bureau of Investigation, testified that, on September 5,1991, he and his partner were working in Camden County on an undercover drug operation. During the course of this undercover operation, Agent Ford met Holzendorf at the Venezuela Club in Kingsland and purchased $20 worth of crack cocaine from Holzendorf.

When reviewing a conviction, this Court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). While Holzendorf denied being at 349 North Orange Edwards Avenue on . February 7, 1994, and denied selling cocaine to Cornish, “it is the function of the jury, and not this Court, to resolve conflicts in the evidence. This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Citation and punctuation omitted.) Kapua v. State, 228 Ga. App. 193, 195 (491 SE2d 387) (1997). Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find Holzendorf guilty beyond a reasonable doubt of sale of cocaine. Jackson v. Virginia, supra.

Decided November 24, 1998.

Clyde M. Urquhart, for appellant.

Stephen D. Kelley, District Attorney, George C. Turner, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A98A2468, A98A2469.
    AMERICAN MEDICAL TRANSPORT GROUP, INC. et al. v. GLO-AN, INC.; and vice versa.
    (509 SE2d 738)
   Eldridge, Judge.

American Medical Transport Group, Inc. (“AMTG”), defendant-appellant, leased from Glo-An, Inc. two suites of offices in Roswell, Georgia. Elizabeth R. Payne was AMTG’s president. Lease 203 and Lease 204 designated “MedWings,” AMTG’s servicemark, as tenant. The two leases were for different units but were identical as to terms, i.e., rental, utility charges, common area maintenance charges, and other terms and conditions of the leases. The terms of both leases ran from April 1, 1995, through March 31, 1997; both specified what constituted default; and both specified Glo-An’s remedies in case of default.

In January 1996, AMTG was delinquent in its rental payments by several months. Ten months of the twenty-four-month rental period had elapsed. Glo-An informed AMTG that eviction proceedings would be commenced. On February 6, 1996, AMTG vacated both suites. Glo-An did not commence eviction proceedings, but placed a “For Lease” sign on the premises in mid-January 1996.

The leases provided specific remedies to Glo-An in the event of default by AMTG. The leases provided that default occurred if: “(a) [tjenant shall fail to pay any installment of the rent . . . when due, and such failure shall continue for a period of five (5) days from the date such installment was due; . . . [or] (f) [t]enant shall desert or vacate any substantial portion of the premises.” The leases provided as remedies in case of default: “A. Terminate this lease in which event Tenant shall immediately surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any other remedy which it may have for possession or arrears in rent, enter upon and take possession of the Premises or any part thereof, by force if necessary, without being liable for prosecution or any claim of damages thereof; and Tenant agrees to pay to Landlord on demand the amount of all loss or damage which Landlord may suffer by reason of such termination, whether through inability to relet the Premises on satisfactory terms or otherwise.” The leases provided that AMTG would pay the rent “without deduction or set off, for the entire term hereof for said premises.”

On March 7, 1996, Glo-An filed its complaint against AMTG, declaring the leases terminated. Glo-An sought attorney fees alternatively under OCGA §§ 13-6-11 and 13-1-11, but elected to proceed under OCGA § 13-6-11. On April 8, 1996, Suite 203 was relet to a new tenant. Suite 204 remained un-rented as of March 31, 1997.

The complaint sought rent and late charges of $9,660.27 for both units for January, February, and March 1996. The complaint gave notice of the intent to collect attorney fees for past due rent and utility bills of $9,562.09. It also sought 12 months rent for Lease 204 from April 1, 1996, through March 31, 1997, totaling $15,633.

On April 18, 1997, Glo-An filed its motion for summary judgment. AMTG responded. Defendants also filed its motion for summary judgment, seeking to hold Payne, its president, solely liable for past due rents and utilities. On October 8, 1997, the trial court denied defendants’ motion, granted Glo-An’s motion for summary judgment against AMTG, and dismissed Payne without prejudice. Defendants appeal.

Case No. A98A2468

1. AMTG’s first enumeration of error is that the trial court erred in granting summary judgment to Glo-An against AMTG for $25,871.10. We do not agree.

AMTG does not deny liability in some amount; it challenges only the award for rent accruing after the premises were abandoned.

“Absent a limiting statute or controlling public policy, parties may contract with one another on whatever terms they wish and the written contract defines the full extent of their rights and duties.. . . We are unaware of any statutory or public policy limiting a lessee’s right to enter into a lease in which both parties agree that the lessee shall be liable for rent for the entire term, less that amount received if the premises are re-let.” (Citations and punctuation omitted.) Hardin v. Macon Mall, 169 Ga. App. 793, 794 (1) (315 SE2d 4) (1984). See Bentley-Kessinger, Inc. v. Jones, 186 Ga. App. 466, 467-468 (367 SE2d 317) (1988); see also Mullis v. Shaheen, 217 Ga. App. 277, 278 (1) (456 SE2d 764) (1995).

The leases clearly provided that the rent was payable “without deduction or set off, for the entire term hereof for the premises,” and “[t]enant agrees to pay to [l]andlord on demand the amount of all loss and damage which [ljandlord may suffer by reason of such termination, whether through inability to relet the [plremises on satisfactory terms or otherwise.” Such “explicit and detailed provision in the lease[s] which clearly and unequivocally expressed the parties’ intention to hold the lessee responsible for after-accrued rent even should an eviction take place.” Bentley-Kessinger, Inc. v. Jones, supra at 468; see also Rucker v. Wynn, 212 Ga. App. 69, 71-72 (4) (441 SE2d 417) (1994); Peterson v. P. C. Towers, L.P., 206 Ga. App. 591, 592 (2) (426 SE2d 243) (1992). Therefore, the trial court did not err as a matter of law in granting summary judgment in the award of $25,871.10, when there existed no disputed issue of material facts as to the award of such liquidated damages.

2. AMTG’s second enumeration of error is that the trial court erred in granting summary judgment for Glo-An against AMTG for interest in the amount of $2,167.67. We do not agree.

Under OCGA § 7-4-2 (a), AMTG is liable for pre-judgment interest on the full amount of the principal awarded for past due rents and late charges at seven percent per annum as of April 14, 1997, totaling $2,095.54, with additional post-judgment interest accruing at the rate of $4.85 per day. Since AMTG neither counterclaimed for nor pled a set-off as an affirmative defense, then such was waived. Thus, there was no error in the trial court’s failure to provide for a set-off for lease deposits prior to calculating the interest. See also Division 4, infra.

3. AMTG’s third enumeration of error is that the trial court erred in granting summary judgment in favor of Glo-An against AMTG for attorney fees in the amount of $3,207.25. We agree.

In the Glo-An brief in Case No. A98A2469, Glo-An states, “[a]s evidenced by the amount it seeks to recover, Glo-An elected to seek attorneys’ fees and litigation expenses pursuant to OCGA § 13-6-11 rather than § 13-1-11.”

Under OCGA § 13-6-11, the amount of the award of attorney fees as damages is a jury question that cannot be decided on summary judgment, because the questions of reasonableness and necessity of the expenses of litigation and attorney fees are matters for expert opinion. Opinion testimony, whether accepted in whole or in part, is a matter of weight and credibility for the jury. Allen v. Harris, 113 Ga. 107, 108-109 (4) (38 SE 322) (1901); Altamaha Convalescent Center v. Godwin, 137 Ga. App. 394, 397-399 (3) (224 SE2d 76) (1976).

“[Questions concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense, under OCGA § 13-6-11, are generally questions for the jury to decide. [Cits.]” Backus Cadillac-Pontiac v. Ernest, 195 Ga. App. 579, 581 (394 SE2d 367) (1990); see also Jim Anderson & Co. v. Partraining Corp., 216 Ga. App. 344, 346 (3) (454 SE2d 210) (1995); Rossee Oil Co. v. BellSouth Telecommunications, 212 Ga. App. 235, 236 (441 SE2d 464) (1994).

“We are in agreement . . . with the trial court insofar as it required evidence of the actual costs of the attorney and the reasonableness of those costs. . . . The intent of the law, as shown by the words, ‘the jury may allow them,’ is to leave the matter of expenses to the jury trying the case. The plaintiff, by merely paying a given amount to his attorney, could not bind the defendants for this amount unless there were some evidence that the amount so paid was reasonable, and unless it was found so to be by the jury trying the case.” (Citations and punctuation omitted.) Brannon Enterprises v. Deaton, 159 Ga. App. 685, 686-687 (285 SE2d 58) (1981); see also J. M. Clayton Co. v. Martin, 177 Ga. App. 228, 232 (6) (339 SE2d 280) (1985).

Even at the close of all the evidence which would support the jury’s award or denial of expenses of litigation or at a post-judgment motion, it is not error for the trial court to deny the direction of a verdict or motion for judgment notwithstanding the verdict on such issue. Powell v. Watson, 190 Ga. App. 375 (378 SE2d 867) (1989); Assaf v. Coker, 157 Ga. App. 432, 434 (5) (278 SE2d 82) (1981). Only in the rare case where there was absolutely no evidence to support the award of expenses of litigation would the trial court be authorized to grant summary adjudication on such issues. See LaRoche Indus, v. AIG Risk Mgmt., 959 F2d 189 (11th Cir. 1992). Summary judgment as to the issue of liability for expenses of litigation damages and the amount of damages in recovery for the reasonable expenses of litigation are for jury determination. Thus, the trial court erred as a matter of law in granting summary judgment on such issues.

4. AMTG’s fourth enumeration of error is that the trial court erred in failing to give AMTG credit for the deposits under the leases of $1,620 and $1,302.75. We do not agree.

Under OCGA § 9-11-13 (a), AMTG failed to file a compulsory counterclaim for the set-off of the rent deposits as a type of counterclaim. See Swim Dixie Pool Corp. v. Kraemer, 157 Ga. App. 748, 749 (1) (278 SE2d 448) (1981); Gwinnett Commercial Bank v. Flake, 151 Ga. App. 578, 580 (1) (260 SE2d 523) (1979). Failure to timely file a compulsory counterclaim results in the claim being barred. Aycock v. Calk, 228 Ga. App. 172, 174-175 (491 SE2d 383) (1997); P & J Truck Lines v. Canal Ins. Co., 148 Ga. App. 3, 4-5 (251 SE2d 72) (1978). See also Division 2, supra.

Decided November 24, 1998.

Robert L. Kirby, for appellants.

Wagner, Johnston & Rosenthal, Kristofer R. Schleicher, Jenny E. Jensen, for appellee.

Therefore, the trial court did not err in failing to subtract the rent deposits from the award as a set-off.

5. AMTG’s fifth enumeration of error is that the trial court erred in dismissing Elizabeth R. Payne as a defendant, without prejudice, because Glo-An elected to proceed against her principal, AMTG. We agree.

In its brief, Glo-An states that it “agrees that it has thereby made an election to collect from the principal — AMTG — rather than from Payne — the agent.” “The contract liability of a principal and his agent is not joint, and after election to proceed against one, the other cannot be held. [Cit.]” Kingsberry Homes v. Findley, 242 Ga. 362, 365 (2) (249 SE2d 51) (1978). Therefore, the trial court erred in not dismissing Payne with prejudice.

Case No. A98A2469

All of Glo-An’s enumerations of error go to issues involving the grant of summary judgment as to expenses of litigation under OCGA § 13-6-11. In Division 3 in Case No. A98A2468, we held that OCGA § 13-6-11 mandates that, generally, a jury determines (1) whether the award of expenses of litigation is appropriate under the facts and circumstances of a particular case, and (2) the specific amount of damages that are recoverable. Thus, the grant of summary judgment as to such damage issues was not appropriate under the facts and circumstances of this case and is reversed in part. Therefore, the enumerations of error raised by Glo-An are not reached in this cross-appeal.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Blackburn, J, concur.


author: Smith, Judge. Beasley, Judge, McMurray, Presiding Judge,

text:
    A97A0645.
    HEAD v. CSX TRANSPORTATION, INC.
    (508 SE2d 760)
   Smith, Judge.

In Head v. CSX Transp., 227 Ga. App. 818 (490 SE2d 497) (1997), John Head appealed the trial court’s reinstatement of the jury’s $8,000 verdict against CSX in his personal injury Federal Employers’ Liability Act (FELA) claim. Id. at 818-819. This reinstatement occurred after the original trial judge granted Head’s motion for new trial on damages only. Id. We concluded that the successor trial judge was authorized to make this ruling because comparative negligence was an issue and therefore a new trial was precluded under the rationale of Beringause v. Fogleman Truck Lines, 209 Ga. App. 470, 472-473 (3) (433 SE2d 398) (1993). See also Palo v. Meisenheimer, 199 Ga. App. 24, 25 (3) (403 SE2d 881) (1991). The Supreme Court granted Head’s petition for writ of certiorari and has remanded the case to this Court for reconsideration in light of Robinson v. Star Gas, 269 Ga. 102 (498 SE2d 524) (1998) and Bridges Farms v. Blue, 267 Ga. 505 (480 SE2d 598) (1997). In Robinson, the Supreme Court disapproved cases such as Beringause and Palo insofar as they stand for the proposition that “inadequate comparative negligence damage awards are categorically precluded from review under OCGA § 51-12-12.” Robinson, supra at 104. The Supreme Court in Robinson also held, relying on Bridges, supra, that the grant of a new trial under OCGA § 51-12-12 (b) in a case involving comparative negligence issues necessitates a new trial on liability as well as damages. Robinson, supra at 105. We conclude that Robinson and Bridges do not require reversal in this case.

It is clear, in light of Robinson, that the successor trial court erred in reasoning that the existence of comparative negligence issues precluded the grant of a new trial. But a trial court’s ruling may be affirmed if it is right for any reason. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991). And we conclude that the trial court nevertheless correctly reinstated the jury’s verdict in this case. “In FELA cases, the jury’s determination of the amount of damages to be awarded is inviolate, absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial. Because questions as to the proper measure of damages in FELA cases are governed by general principles of law established by the federal courts, the revision of OCGA § 51-12-12 in 1987 did not modify the principles applicable to FELA cases. And . . . this standard is the same regardless of whether it is being applied by a trial court on motion for new trial or by the appellate court on appeal.” (Citations, punctuation and footnote omitted.) Central of Ga. R. Co. v. Carter, 212 Ga. App. 528, 530 (3) (442 SE2d 269) (1994).

We can no longer hold that comparative negligence principles preclude the grant of a new trial. But the jury was authorized to consider the effect of Head’s contributory negligence when awarding damages. See Hickox v. Seaboard System R., 183 Ga. App. 330-331 (358 SE2d 889) (1987) (where employee contributorily negligent, damages to be diminished by jury in proportion to negligence attributable to employee). Evidence was presented that Head was attempting to “chock” a moving railroad car, despite safety precautions in his rule manual prohibiting such behavior, when an air hose broke loose and injured him. In light of this evidence, in addition to medical evidence concerning the extent of Head’s physical injuries, the jury’s award fell within the range of evidence presented and was not so “inadequate as to shock the judicial conscience and raise [the] irresistible inference that passion, prejudice or another improper cause invaded the trial.” (Citations and punctuation omitted.) Carter, supra at 530 (3). The original trial judge therefore abused her discretion in granting Head’s motion for new trial, and the successor judge correctly reinstated the jury’s verdict.

Judgment affirmed.

Andrews, C. J., and Senior Appellate Judge Harold R. Banke concur. Beasley, J., concurs specially. McMurray, P. J., Ruffin and Eldridge, JJ, dissent.

Beasley, Judge,

concurring specially.

I agree that the lower court reinstatement of the jury verdict and the judgment entered thereon should be affirmed, but upon a somewhat different analysis than presented in the majority opinion.

The dissent is correct that the excessiveness or inadequacy of an amount awarded in a verdict is initially a question of fact when raised in a motion for new trial to the trial judge. “An excessive or inadequate verdict constitutes a mistake of fact rather than of law. It addresses itself to the discretion of the trial judge who saw the witnesses and heard the testimony.” “[W]here no prejudice or bias or corrupt means in reaching the verdict appear, we [as a court for correction of errors of law] are not authorized to set it aside as being excessive [or inadequate].” Our power is likewise limited when reviewing the trial court’s decision on the issue for abuse of discretion.

That is true whether the case is a FELA case and thus subject to the standard articulated in Central of Ga. R. Co. v. Carter or a nonFELA case and thus subject to OCGA § 51-12-12. In this regard the trial court acts somewhat as a thirteenth juror and then applies the court’s conscience to the facts as it finds them to be. Thereby it “approves” the verdict, in the word of the Supreme Court of Georgia, according to the presiding judge’s conscience, which means “the sense of right or wrong within the individual.” But in acting as a factfinder, the Supreme Court has cautioned that “Georgia’s courts ‘should not interfere with the jury’s verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case.’ ” Although the Supreme Court was referring to OCGA § 51-12-12 (a), which does not apply in this FELA case, the universality of the principle suggests that the same deference be given in FELA cases.

The law gives the judge who presides at a trial the authority to “exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.” It is that judge who represents the conscience of the court and thus is empowered to grant a new trial “even though the evidence is sufficient to support the verdict.” As the Supreme Court so eloquently stated: “Ours [as an appellate court] is the function merely to see that the law is followed. Theirs is the solemn responsibility to see to it that justice is administered according to the evidence as well as the law.” The Court of Appeals, like the Supreme Court, is a court for the correction of errors of law only.

The judge who presided over Head’s case did grant him a new trial upon his motion, but the problem is that she granted it for damages only, thus establishing liability as the law of the case and cutting off the right of the defendant to have a second opportunity to persuade a jury there was none or that Head’s negligence accounted for a higher proportion of the damages. In granting a limited new trial, the judge denied Head’s alternative motion for an entire new trial. The Supreme Court has ruled that “when a Georgia court grants a new trial under OCGA § 51-12-12 (b) in a case involving comparative negligence, that trial must necessarily encompass issues of liability and damages.” The same principle applies to FELA cases, in which the issues of liability and damages likewise are “inextricably joined.”

Thus the trial judge’s role as the court’s conscience was exceeded as a matter of law, and the judge later assigned to the case was compelled to vacate her order as a matter of law. The second judge sat in an appellate capacity because he had not tried the case and thus was not to disturb the grant of a new trial by the judge who exercised the court’s conscience, taking into account her assessment of the evidence. Instead, he was limited to determining whether she had abused her discretion or otherwise exceeded her authority to grant a new trial, as we are limited by OCGA § 5-5-50. She had done so, not because the evidence did not warrant a finding of unjust inadequacy but rathér because she impermissibly limited the scope of the trial.

Were we, or the second judge on the superior court for that matter, to address whether the trial judge abused her discretion on the issue of inadequacy of verdict, we would be confined to determining whether it was not inadequate as a matter of law. In Central of Ga. R. Co. v. Carter, it may appear that this Court was acting as would the trial court when it stated that “whether [the standard of excessiveness or inadequacy] is being applied by a trial court on motion for new trial or by the appellate court on appeal” it is the same, and that in examining the evidence it found that “[t]he verdict in this case is not shocking and is consistent with the preponderance of evidence in the case.” In truth, that factfinding mission belongs to the trial court alone, and all this Court could do was assure that the evidence displayed upon the written record did not compel a conclusion of excessiveness as a matter of law. The standard of review differs from the standard to be applied by the trial court.

We need not remand the case to the trial court for the successor judge to reconsider the motion for new trial on the theory that the first ruling was invalid. Since the ground asserted was that the verdict was shockingly inadequate (“ ‘inconsistent with the preponderance of the evidence’ ”), which is a matter of fact, the successor judge would have to make such finding upon conflicting evidence. That the judge cannot do from the cold record. Of course, a successor judge may rule on a motion for new trial, “‘but the scope within which the discretion may be exercised, in the consideration of the evidence, by a judge who did not preside at the trial is not as extensive as in the case of the judge who heard and observed the witnesses and who, in a sense, is to be considered as the thirteenth member of the jury.’ ” In this case particularly, where comparative negligence and the related proportionality aspect of damages played a part, the limited discretion of a successor judge, remote from trial, to reject the jury’s verdict and grant a new trial on the ground asserted would be nil.

In connection with this point I disagree with the statement made in the first opinion-in this case, that “the issues raised by the parties’ post-trial motions did not involve assessment of the credibility and demeanor of witnesses.” In any event, this appellate court exceeds its role when it exercises a judicial conscience and weighs the evidence, as has been done in the majority opinion. If anyone should do that, it is a successor trial court judge. But as demonstrated above, that would lead inevitably to a denial of the motion.

McMurray, Presiding Judge,

dissenting.

Once more I find myself unable to embrace the majority position in this appeal from the trial court’s reinstatement of a jury verdict. The underlying theme in my prior dissent (Head v. CSX Transp., 227 Ga. App. 818, 821 (490 SE2d 497)) now becomes the central issue upon which I rely. Simply put, I must urge that an appropriate deference to the decision of the trial court in granting plaintiff’s motion for new trial cannot be reasonably avoided.

In order to determine whether the trial court was authorized to conclude that the jury verdict was inadequate under the federally mandated standard requires a weighing of the evidence. The majority quotes and relies upon a statement from Central of Ga. R. Co. v. Carter, 212 Ga. App. 528, 530 (3) (442 SE2d 269), that the standard applicable to the review of the adequacy of jury verdicts in Federal Employers’ Liability Act (“FELA”) cases is “the same regardless of whether it is being applied by a trial court on motion for new trial or by the appellate court on appeal.” Id. at 530.1 submit that, except in instances where there is direct proof of improper cause, the goal reflected in this statement is unrealistic since there are no objective criteria governing the task and the appellate courts lack the perspective of a trial judge who has observed the demeanor and conduct of the witnesses. The process of reviewing the adequacy of the verdict in a FELA case is more aptly described as being a matter which “is, by law, governed by judicial subjectivity in a realm absent objective criteria.” Southern R. Co. v. Minor, 196 Ga. App. 183, 186 (4) (395 SE2d 845).

Thus, I continue to maintain that the task of reviewing the adequacy of verdicts in FELA cases must rest in the first instance with the trial courts and that our review of decisions on this issue attribute to the trial courts an appropriate discretion in this matter. In my earlier dissent, I argued that these issues should be viewed as being governed by OCGA § 5-5-50. However, whether or not that suggestion was correct, practical necessity suggests a similar scheme, and this has been our law even prior to enactment of the statute. Sparks v. Noyes, 64 Ga. 437 (1879).

Furthermore, the FELA standard of review has been held to be consistent with the former Georgia standard as stated in OCGA § 51-12-12 prior to the 1987 revision of that statute. And with respect to OCGA § 51-12-12, it has been recently noted that an excessive or inadequate verdict constitutes a mistake of fact, not law, which addresses itself to the discretion of the trial judge who saw the witnesses and heard the testimony, and that this Court’s jurisdiction is confined to the question of whether the trial court abused discretion in ruling on the motion challenging the adequacy of the verdict. Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 165 (2) (473 SE2d 256).

In the case sub judice, the amended grant of new trial reflected application of the correct federal standard of review by stating that the trial court found the jury verdict to be “ ‘inconsistent with the preponderance of the evidence, that it would be a denial of justice to permit it to stand, and that the verdict is shockingly inadequate so as to raise an irresistible inference that an improper cause or mistake invaded the trial.’ ” Head v. CSX Transp., 227 Ga. App. 818, 819, n. 1, supra. There being no abuse of discretion on the face of the record and since the evidence did not demand the verdict returned by the jury, the trial court’s order granting the motion for new trial should not have been disturbed.

Decided November 4, 1998

Reconsideration denied November 25, 1998

Taylor, Harp & Callier, John A. Harp, Jefferson C. Callier, for appellant.

Casey, Gilson & Williams, Robert E. Casey, Jr., James E. Gilson, Matthew P. Stone, Sandra Gray, for appellee.

The order of the subsequent trial court judge reinstating the jury’s verdict was predicated on an erroneous theory of law and should be reversed. See Robinson v. Star Gas, 269 Ga. 102, 105 (498 SE2d 524).

I am authorized to state that Judge Ruffin and Judge Eldridge join in this dissent.

       The procedural posture of this case in the trial court is somewhat unusual, as two different judges ruled on motions filed by the parties. The trial judge who heard the evidence and granted Head’s motion for new trial was removed from office. See In the Matter of: Inquiry Concerning a Judge, 265 Ga. 843 (462 SE2d 728) (1995). A successor trial judge then granted the motion for reconsideration filed by CSX, which is the subject of this appeal.

       As noted in the previous appearance of this case, after the original trial judge granted Head’s motion for new trial, CSX moved for reconsideration on the basis of the standard for granting a new trial in FELA cases. 227 Ga. App. at 819, n. 1. That judge then entered another order stating that the jury’s verdict “ ‘is inconsistent with the preponderance of the evidence, that it would be a denial of justice to permit it to stand, and that the verdict is shockingly inadequate so as to raise an irresistible inference that an improper cause or mistake invaded the trial.’ ” Id.

       “Chocking” involves the placement of wood under a railroad car wheel to keep the car from moving.

         St. Paul Fire &c. Ins. Co. v. Dillingham, 112 Ga. App. 422, 425 (145 SE2d 624) (1965).

       (Citations and punctuation omitted.) Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508, 513 (10) (359 SE2d 351) (1987).

        Wilson v. Dunaway, 112 Ga. App. 241, 246-247 (8) (144 SE2d 542) (1965). See also Seaboard Air Line R. Co. v. Vaughn, 19 Ga. App. 397, 398 (3) (91 SE 516) (1916).

       212 Ga. App. 528, 530 (3) (442 SE2d 269) (1994).

        Mills v. State, 188 Ga. 616, 625 (4 SE2d 453) (1939).

       Webster’s Third New International Dictionary.

       (Citation omitted.) Robinson v. Star Gas, 269 Ga. 102, 104 (498 SE2d 524) (1998).

       OCGA § 5-5-21.

       (Citation omitted.) Mills, supra, 188 Ga. at 623.

       Id.

        Sturdy v. State, 192 Ga. App. 71, 72 (383 SE2d 632) (1989); Barkwell v. Helms, 140 Ga. App. 273, 274 (231 SE2d 5) (1976).

       “The contributory negligence of the plaintifB'employee ‘shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. . . .’ 45 USCA § 53.” Hickox v. Seaboard System R., 183 Ga. App. 330 (358 SE2d 889) (1987).

       (Citations omitted.) Robinson, supra, 269 Ga. at 105; Bridges Farms v. Blue, 267 Ga. 505 (480 SE2d 598) (1997).

       (Punctuation omitted.) Robinson, supra, 269 Ga. at 105.

       See, e.g., Dillingham, supra, 112 Ga. App. at 425, where the trial judge denied a motion for new trial brought on the ground of excessiveness and this Court affirmed because, recognizing its limited power as a court for correction of errors of law only, it concluded that “it cannot be said that the verdict is excessive as a matter of law.” Accord Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 165 (2) (473 SE2d 256) (1996).

       212 Ga. App. at 530 (3).

        Head v. CSX Transp., 227 Ga. App. 818, 819, n. 1 (490 SE2d 497) (1997).

       (Citations omitted.) Throgmorton v. Trammell, 90 Ga. App. 433, 435 (2) (a) (83 SE2d 256) (1954).

        Head v. CSX Transp., supra, 227 Ga. App. at 820 (1).


author: Ruffin, Judge.

text:
    A98A1409.
    WILLINGHAM v. THE STATE.
    (509 SE2d 744)
   Ruffin, Judge.

A jury found Curtis Willingham guilty of child molestation and statutory rape and not guilty of aggravated child molestation. Willingham appeals, asserting that the trial court erred in allowing his character to be impermissibly placed into issue at trial and in not charging the jury on the defenses of accident and mistake of fact. Willingham also enumerates as error several instances of ineffective assistance of trial counsel. We affirm Willingham’s conviction, but remand the ineffective assistance claim to the trial court for an evidentiary hearing.

1. Willingham first contends that the trial court should have instructed the jury to disregard evidence that placed his character in issue, specifically: (1) his daughter’s (the victim’s) statement that “[h]e told me and my mom that he had a dream he was sleeping with my cousin and he told me one day that he would love to have sex with her but for me not to be telling my mom”; (2) the investigating officer’s testimony that Willingham told him, “I did have a dream of touching my niece”; and (3) his own statement elicited on cross-examination that, “I told my wife I had dreamed about my niece.” However, because he did not object to these allegedly improper references to his character at trial, Willingham waived his right to review of this issue on appeal. “[I]t is well-settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection. In this state it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which might have been raised.” (Citation and punctuation omitted.) Kapua v. State, 228 Ga. App. 193, 196 (2) (491 SE2d 387) (1997); see also Basu v. State, 228 Ga. App. 591, 592-593 (1) (492 SE2d 329) (1997) (failure to raise issue at trial constitutes waiver). Accordingly, this contention is without merit.

In this same enumeration of error, Willingham also objects to the trial judge’s statements during the sentencing phase which referred to Willingham’s “dream” about his niece. This argument is patently different from that propounded in his enumeration of error that character evidence was wrongfully admitted at trial. “On appeal an enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration.” (Citations omitted.) Wright v. State, 228 Ga. App. 223 (491 SE2d 466) (1997).

2. In two enumerations, Willingham alleges as error the trial court’s failure to instruct the jury, sua sponte, on the defenses of accident and mistake of fact. Upon reviewing these contentions together, we conclude that this argument lacks merit.

At trial, Willingham repeatedly denied committing the crimes of which he had been charged. However, he also stated that, even if he had committed them, it was because he might have confused his daughter with his wife while their daughter was sleeping in the bed with them. He testified that “during the course of the night, I woke up and I had my hand between [my daughter’s] legs and I told [her], I said, 1 swear I didn’t know it was you.’ I didn’t know anything.” He could not state definitively whether he tried to initiate intercourse with his daughter, thinking it was his wife. He also denied ever having put his mouth on her vagina by accident. And finally, he testified that the incriminating statement lie gave to the investigating officer, including his admission that “I pulled down her panties and I tried to put my dick between her legs” was a lie and that he only admitted to molesting and raping his daughter because the officer told him 'You’re not leaving [this interview] until you give me what I want.”

Willingham acknowledges that he did not request jury charges on the defenses of accident or mistake. “Generally, where no written request for a jury charge has been filed, the failure to give that charge is not error. However, failure to charge the sole defense, even without a request, constitutes reversible error.” (Citation and punctuation omitted.) Clay v. State, 232 Ga. App. 656, 658 (2) (503 SE2d 560) (1998). In the present case, the evidence clearly shows that Willingham’s primary defense was not accident or mistake of fact, but to deny committing any of the acts which constituted the charges against him, including child molestation, aggravated child molestation, and statutory rape. Under these circumstances, “[Willingham] cannot deny committing an act, while at the same time argue he committed the act by mistake.” Williams v. State, 221 Ga. App. 296, 297 (1) (471 SE2d 258) (1996).

Decided November 25, 1998.

James P. Brown, Jr., Lloyd J. Matthews, for appellant.

Tommy K. Floyd, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

Since neither accident nor mistake of fact was his sole defense, and the court properly charged on all essential elements of the crimes with which he was charged, he was not entitled to these charges as a matter of law. See Williams, supra (mistake of fact); Henderson v. State, 141 Ga. App. 430 (4) (233 SE2d 505) (1977) (accident).

3. In several enumerations of error, Willingham asserts for the first time on appeal that he was denied effective assistance of trial counsel. “An ineffectiveness claim may be raised for the first time in a direct appeal if the direct appeal marks the first appearance of new counsel. The record does not show that [Willingham’s] new appellate counsel had an opportunity to raise the issue in the trial court pursuant to a motion for new trial; it shows that new counsel made his first appearance in the appeal. Accordingly, the case must be remanded to the trial court solely for consideration of the ineffective assistance of counsel issue. If the trial court finds that [Willingham] did not receive effective assistance of counsel, a new trial is required. If the trial court finds that [Willingham] did have effective assistance, he shall have 30 days in which to initiate an appeal of the trial court’s ruling on the issue.” (Citations omitted.) Davitt v. State, 232 Ga. App. 427, 429 (4) (502 SE2d 300) (1998).

Judgment affirmed on condition and case remanded with direction.

Pope, P. J., and Beasley, J., concur.


author: Judge Harold R. Banke.

text:
    A98A2362.
    ZACH, INC. v. FULTON COUNTY et al.
    (509 SE2d 746)
   Judge Harold R. Banke.

This is the third appearance of this property tax challenge before this Court. Zach, Inc. and 16 other non-profit fraternal organizations located within the boundaries of Georgia Institute of Technology sued Fulton County, the City of Atlanta, and the Tax Commissioner of Fulton County (collectively “Fulton County”) seeking property tax exemptions and tax refunds under OCGA § 48-5-41 (a) (6). That statute provides an exemption from all ad valorem property taxes for: “[a]ll buildings erected for and used as a college, incorporated academy, or other seminary of learning.” OCGA § 48-5-41 (a) (6).

In the first case, we found that Zach was not entitled to summary judgment because it did not fall within the ambit of OCGA § 48-5-41 (a) (6). Zach, Inc. v. Fulton County, 217 Ga. App. 315 (457 SE2d 574) (1995). We determined that where non-profit property is neither owned by the college nor is an “arm and extension” of the college, then no ad valorem property tax exemption arises. Id. at 316; see Johnson v. Southern Greek Housing Auth. Corp., 251 Ga. 544 (307 SE2d 491) (1983).

In the second case, we affirmed summary judgment in favor of Fulton County. Zach, Inc. v. Fulton County, 226 Ga. App. 842 (487 SE2d 602) (1997). We explicitly found that the record proved that Zach was not an “arm or extension” of Georgia Tech but was an entity created by a national fraternity and run by a board comprised of individuals from outside the college community.

After return of the remittitur, the trial court considered and rejected the equal protection challenge Zach raised in its renewed motion for summary judgment. In the instant appeal, Zach controverts the rejection of its equal protection argument and contests the grant of Fulton County’s motion for summary judgment and the denial of its motion for the same. Held:

1. Zach contends that OCGA § 48-5-41 (a) (6) is unconstitutional as applied because some Georgia Tech fraternities and sororities which use their properties in an identical manner receive tax exemptions. This results, according to Zach, in disparate treatment violative of equal protection under both state and federal constitutions.

An equal protection analysis considers: first, whether the claimant is similarly situated to members of the class who are treated differently from it and second, whether such different treatment has a rational basis. Stuart-James Co. v. Tanner, 259 Ga. 289, 290 (380 SE2d 257) (1989). Zach bore the burden of showing the statute was unconstitutional as applied. Id.

Here, Zach failed to satisfy either prong. It is undisputed that the other Greek letter organizations receiving tax exemptions are not similarly situated because they, unlike Zach, are located on real property belonging to Georgia Tech. Since Georgia Tech is a “college,” its property fits squarely within the express language of OCGA § 48-5-41 (a) (6). Zach, on the other hand, is not a “college” but a private corporation operating the ZBT fraternity on land Zach owns in fee simple.

Further, under rational basis analysis, the classification must bear a rational relationship to a legitimate end of government not prohibited by the Constitution. Craven v. Lowndes County Hosp. Auth., 263 Ga. 657, 658 (1) (437 SE2d 308) (1993). As a general rule, public property is exempt from ad valorem taxation. OCGA § 48-5-41 (a) (1) (A). In exercising its constitutional prerogative to control taxation, the legislature was entitled to exclude state property from local taxation. Ga. Const, of 1983, Art. VII, Sec. I, Par. I; see Rogers v. DeKalb County &c. Tax Assessors, 247 Ga. 726, 729 (2) (279 SE2d 223) (1981) (federal equal protection clause affords wide discretion to states to exercise inherent revenue powers).

Notwithstanding Zach’s argument to the contrary, Johnson did not hold that property used as college-sanctioned fraternities or sororities is exempt from ad valorem taxation. On the contrary, it was the “actual use of the property by the institution” that controlled the outcome of Johnson. (Emphasis supplied.) Johnson, 251 Ga. at 546. In Johnson, the property user, the Southern Greek Housing Corporation (“SGHC”), was not a national fraternal organization but an entity created for the limited purpose of serving Georgia Southern College. In fact, SGHC’s charter, as well as the recorded restrictive covenants pertaining to the land being used, provided that SGHC was “an arm and extension of the College, and [could not] exist outside of its purpose of supplementing the educational processes of Georgia Southern College.” Id. at 545. The Supreme Court found that despite the fact that the property was not titled in the name of Georgia Southern College, the buildings had been “erected for and used as a college” within the meaning of OCGA § 48-5-41 (a) (6). See Alford v. Emory Univ., 216 Ga. 391, 398 (116 SE2d 596) (1960).

Zach’s “identical use” argument overlooks the crucial fact that under the holding of Johnson, supra, the use must be by Georgia Tech or an arm and extension thereof. Because Zach is bound by our previous holdings that its building was not “erected for and used as a college” within the meaning of Johnson, supra, and that Zach is not an “arm or extension” of Georgia Tech, it is foreclosed from claiming otherwise. Zach, Inc., 217 Ga. App. at 316.

Decided November 25, 1998

Bodker, Ramsey & Andrews, Stephen C. Andrews, David J. Maslia, for appellant.

Clifford E. Hardwick IV, Bernard R. Thomas, Sr., Vernitia A. Shdnnon, for appellees.

2. Zach was not entitled to summary judgment. Since taxation is the rule and exemption the exception, taxation statutes must be strictly construed. Leggett v. Macon Baptist Assn., 232 Ga. 27, 28 (205 SE2d 197) (1974). An exemption cannot be conferred unless it is clearly and distinctly shown that it was intended by the legislature. Gold Kist v. Jones, 231 Ga. 881, 885 (204 SE2d 584) (1974); see, e.g., Mu Beta Chapter Chi Omega House Corp. v. Davison, 192 Ga. 124, 128-129 (14 SE2d 744) (1941) (college sorority not an “institution of purely public charity” entitled to exemption). Here, Zach failed to make the requisite showing.

Judgment affirmed.

Johnson, P. J, and Smith, J., concur.

       Finding that the equal protection issue involved “merely the application of OCGA § 48-5-41 (a) (6)” and not a constitutional construction or a constitutional challenge to the law itself, the Supreme Court transferred this case. Atlanta Independent School System v. City of Atlanta, 266 Ga. 657 (1) (469 SE2d 22) (1996).


text:
    A98A2460.
    KIM v. DEPARTMENT OF TRANSPORTATION.
    (510 SE2d 50)
   Judge Harold R. Banke.

Jeong Kim appeals the dismissal of his complaint against the Georgia Department of Transportation (“DOT”) under the Georgia Tort Claims Act (“GTCA”) for failure to comply with the ante-litem notice provisions of the GTCA. Kim contends it was error to dismiss his complaint for that reason because he substantially complied with the ante-litem notice provisions and because he contends the GTCA and its ante-litem notice provisions violate the United States and Georgia Constitutions.

After Kim was injured in an automobile accident, he filed suit against DOT alleging improper design of the highway. DOT filed a special appearance answer to the complaint that, among other defenses, asserted failure to give ante-litem notice as required by the GTCA and lack of jurisdiction. The last page of the pleading contained the notice: “PLEASE ADDRESS ALL COMMUNICATIONS TO: [The name and address of the Assistant Attorney General responsible for the litigation].”

DOT moved to dismiss the complaint because Kim had not complied with the ante-litem notice provisions of OCGA § 50-21-26. The motion relied upon OCGA § 50-21-26 (a) which provides that “[n]o person, firm, or corporation having a tort claim against the state under this article shall bring any action against the state upon such claim without first giving notice of the claim.” The notice must “be given in writing and shall be mailed by certified mail, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services. In addition, a copy shall be delivered personally to or mailed by first-class mail to the state government entity, the act or omissions of which are asserted as the basis of the claim.” OCGA § 50-21-26 (a) (2). The Code section further provides that “[n]o action against the state under this article shall be commenced and the courts shall have no jurisdiction thereof unless and until a written notice of claim has been timely presented to the state as provided in this subsection.” OCGA § 50-21-26 (a) (3).

Kim’s response to DOT’s motion asserted that he gave sufficient written notice because his complaint was served upon the commissioner of the DOT within 12 months of the date the loss was discovered and because he sent an ante-litem notice to the assistant attorney general responsible for the case as required by the notation on DOT’s special appearance answer. Kim does not allege, however, that he gave notice, either by certified mail, return receipt requested, or personally delivered to the Risk Management Division of the Department of Administrative Services before he filed suit.

The trial court granted DOT’s motion to dismiss Kim’s complaint without ruling on Kim’s constitutional challenges. Although Kim filed his appeal with the Supreme Court of Georgia, the case was transferred to this Court because Kim’s constitutional challenges were not distinctly ruled upon by the trial court. Held:

1. As Kim’s constitutional challenges to OCGA § 50-21-26 were not distinctly ruled upon by the trial court, those issues are not preserved for appellate review. Atlanta Independent School System v. Lane, 266 Ga. 657, 658 (1) (469 SE2d 22) (1996); Raskin v. Wallace, 215 Ga. App. 603, 604 (1) (451 SE2d 485) (1994).

2. Kim’s argument that he substantially complied with the antelitem notice provision in OCGA § 50-21-26 (a) is unpersuasive. Strict compliance with OCGA § 50-21-26 (a) is required. McGee v. State of Ga., 227 Ga. App. 107, 108-109 (1) (487 SE2d 671) (1997); Howard v. State of Ga., 226 Ga. App. 543-545 (1) (487 SE2d 112) (1997). By its own terms, the State Tort Claims Act must be strictly construed (id. at 543 (1)), and OCGA § 50-21-26 (a) specifically sets forth the manner in which and to whom the required notice must be given. Earn did not give notice to the Risk Management Division of the State Department of Administrative Services as required by OCGA § 50-21-26 (a) before suit was filed. A notice typed on a pleading stating where communications should be directed is not effective to amend the law of this state. Therefore, the notice Kim contends he made was not that specified in OCGA § 50-21-26 (a), and his claim was dismissed properly under OCGA § 9-11-12 (b) (1) because the trial court did not have subject matter jurisdiction over the action. OCGA § 50-21-26 (a) (3); Howard, 226 Ga. App. at 544-545 (1).

Decided November 25, 1998.

Holland & Knight, Keith J. Reisman, for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Debra A. Golybieski, Assistant Attorney General, for appellee.

Don C. Keenan, amicus curiae.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.


author: Beasley, Judge.

text:
    A98A1541.
    CITIZENS BANK OF AMERICUS v. FEDERAL FINANCIAL SERVICES, INC.
    (509 SE2d 339)
   Beasley, Judge.

On stipulated facts, Federal Financial Services, Inc., sought a judgment declaring that it has a purchase money security interest with priority over the earlier perfected security interest of Citizens Bank of Americas in the same logging skidder. The court entered judgment in Federal Financial’s favor. The bank appeals.

Where conflicting security interests are perfected by the filing of financing statements, the general rule under OCGA § 11-9-312 (5) is that they rank according to priority in time of filing. But under OCGA § 11-9-312 (4), a purchase money security interest in collateral other than inventory has priority over a previously perfected security interest in the same collateral, if the purchase money security interest is perfected “at the time the debtor receives possession of the collateral or within 15 days thereafter.” The issue is, which comes first, Citizens or Federal? The answer lies in the determination of the triggering event, quoted above, which establishes the time period during which the purchase money security interest holder must file a financing statement.

The stipulated facts are as follows. Charles H. Logging, Inc., began negotiations to purchase a logging skidder from Pioneer Machinery, Inc., sometime prior to December 5, 1996. On December 5, the logging company borrowed $22,520 from Citizens Bank of Americus and signed a promissory note in favor of the bank and a UCC financing statement listing the skidder as collateral. The bank filed the financing statement the next day. The logging company used the loan proceeds to satisfy debts. It did not possess or own the skidder.

About two weeks later, on December 18, Pioneer delivered the skidder to the company for demonstration purposes only. Toward the end of December, the company decided to purchase the skidder from Pioneer. On December 30, the company indicated its intention by executing a contract of sale and invoice which were subject to the company’s obtaining adequate physical damage insurance showing Pioneer and Federal Financial Services, the intended purchase money lender, as loss payees. The contract was also expressly subject to signature by Pioneer, the seller.

A little more than a month thereafter, on February 6, 1997, the company acquired ownership of the skidder after obtaining the required insurance. The same day, it executed a note to Federal Financial, signed a UCC financing statement listing the skidder as collateral, and Federal Financial remitted the loan proceeds to Pioneer in payment of the purchase price. Federal Financial filed the financing statement on February 10.

It is uncontested that Citizens Bank’s perfected security interest in the skidder does not qualify as a purchase money security interest because the funds it lent were not in fact used by the logging company to purchase the skidder. Whether Federal Financial’s purchase money security interest achieved priority over the bank’s previously perfected security interest depends on the date of the event statutorily described as “the time the debtor receive[d] possession of the collateral.”

The eventual purchaser received possession of the collateral on December 18 for a specific purpose and thereby became its bailee. The skidder was still owned by the seller and, insofar as the bailee’s creditor bank was concerned, the skidder was property which was to become acquired.

The bailee became a purchaser on February 6, thereby acquiring ownership of the property, and its status as bailee ceased. It paid for the skidder by way of its loan that day from the purchase money lender, which paid the seller directly. At that time the purchaser became debtor to the purchase money lender. The purchaser already had possession of the collateral on that day, so it is then that the two factors (indebtedness for purchase price and possession) first coincided. The lender had 15 days from that date to file the financing statement, which it did.

In any given situation with respect to the particular priority with which this case is concerned, in analyzing when the time-triggering event occurred, several variables must be considered. Identification must be made of the parties and their roles, the legal relationship of the parties insofar as the transaction or transactions are concerned, and the whereabouts of the collateral. The seller may be the lender as well. The purchaser may thus be a debtor to the same party. The purchaser may gain possession before, at, or after the sale and before, at, or after it becomes obligated for the purchase money loan. The lender of the purchase money may lend the purchase money before, at, or after its debtor acquires possession of the property. The interplay of these variables is demonstrated in a number of cases brought to our attention by the parties.

According to the commentators, these cases apply two divergent standards for determining when a debtor receives possession of collateral within the meaning of UCC § 9-312 (4). One line of cases applies what is referred to as the “obligation” standard, and the other utilizes what is known as the “physical control” standard.

In Brodie Hotel Supply v. United States, the lead case applying the “obligation” standard, the buyer of a restaurant took possession of it and began operations before concluding negotiations with the seller for purchase of the restaurant equipment. Meanwhile, the purchaser borrowed money from a bank and executed a chattel mortgage secured by the restaurant equipment. The bank perfected its security interest by filing a financing statement in a timely fashion. Shortly thereafter, the purchaser bought the equipment from the seller and gave him another chattel mortgage on the equipment to secure the unpaid purchase price. The seller delivered the bill of sale and the purchaser executed the chattel mortgage the same day. The seller filed the financing statement within the next fifteen days, as required by the local version of the UCC, but over five months after the purchaser acquired physical possession of the restaurant equipment.

The Ninth Circuit concluded that the seller properly perfected his purchase money security interest. The court arrived at this conclusion by interpreting the term “debtor,” as used in UCC § 9-312 (4), as “ ‘the person who owes payment or other performance of the obligation secured/ ” which is the meaning given the term in the definitions section of Article 9, UCC § 9-105 (d). The filing of the financing statement by the seller was therefore timely, because the purchaser did not owe performance of an obligation secured by the restaurant equipment until he received the bill of sale and executed the chattel mortgage in favor of the seller.

In Brodie, the bank’s assignee argued that the term “debtor” is used in the § 9-312 (4) sense merely to identify the individual in possession of the property. This argument was based on the fact that UCC § 9-402 (1) likewise uses the term “debtor” while expressly providing that a financing statement may be filed before a security agreement is made or a security interest otherwise attaches. The court was not persuaded.

Subsequent cases in various jurisdictions have followed the Bro-die line of reasoning and held that a purchase money security interest has priority over a previously perfected security interest, where the buyer obtains physical possession of the property before becoming obligated to make the purchase, and the purchase money lender’s perfection of its security interest is timely when measured from the point when the purchaser incurs the purchase money obligation which the property secures.

In North Platte State Bank v. Production Credit Assn, of North Platte, the lead case applying the “physical control” standard, a rancher purchased cattle but did not pay for them until approximately two months after they had been delivered to him. The bank which provided the funds used to make the purchase filed its financing statement six days after the rancher executed a note and security agreement in its favor, but over two months after he had obtained physical possession of the cattle. Under those circumstances, the Nebraska Supreme Court held that the prior security interest took precedence over the bank’s.

The court began its analysis by asking whether the bank even had a purchase money security interest in the cattle. Under UCC § 9-107, “[a] security interest is a ‘purchase money security interest’ to the extent that it is[:] (a) taken or retained by the seller of the collateral to secure all or part of its price; or (b) taken by a person who by making advances or incurring an obligation gives value to enable the debtor to acquire rights in or the use of collateral if such value is in fact so used.” The court in North Platte held that the bank did not have a purchase money security interest. First, it was not the seller of the cattle. Second, the funds it provided had not enabled the rancher to acquire rights in or use of the cattle, in that under UCC § 2-401 (2) title to the cows passed to the purchaser when they were delivered to him.

The court proceeded to state that a further and even more fundamental reason why the bank could not succeed in establishing priority was that the purchaser of the cattle obtained possession when he acquired physical control of them. It thereby rejected the argument that the rancher did not have “possession” of the cattle in the § 9-312 (4) sense until the loan was made by the bank and the security agreement signed. The court reasoned that the rancher had been the “debtor” of the prior creditor all along.

Other courts have followed the reasoning in North Platte where the buyer of property incurs an obligation secured by the property when physical possession is acquired.

In the most recent case cited by the parties, Color Leasing 3 v. Fed. Deposit Ins. Corp., the federal bankruptcy court in Rhode Island has correctly recognized that although the reasoning employed in the two lines of cases is at variance, the cases are only “superficially divergent” insofar as concerns the ultimate disposition of each.

The Brodie line of cases, similar to the present one, involved sales on approval. This resulted in holdings that the § 9-312 (4) grace period did not begin to run until the purchase money obligation was assumed. North Platte and cases following it involved situations in which the buyer or lessee owed performance of an obligation secured by the property at the time physical possession was acquired. This resulted in holdings that the time period allowed by the statute began to run at that time. In none of the cases was it held that the running of the grace period was triggered before the debtor owed performance of the secured obligation.

Decided November 9, 1998

Reconsideration denied November 30, 1998.

Ellis, Easterlin, Peagler, Gatewood & Skipper, Benjamin F. Easterlin TV, for appellant.

Jones, Cork & Miller, Sharon H. Reeves, for appellee.

Here, it is undisputed that Federal Financial is the only creditor holding a purchase money security interest, and that it perfected this interest by filing its financing statement within 15 days after the logging company acquired ownership of the skidder and executed the note evidencing its obligation to pay the purchase price. Under these circumstances, it has priority.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       See OCGA § 11-9-302 et seq.; Continental Oil Co. &c. v. Sutton, 126 Ga. App. 78, 79, n. 1 (189 SE2d 925) (1972).

       See UCC § 9-107 (b), discussed infra.

       See In the Matter of Prior Bros., Inc., 632 P2d 522, 527-528 (Wash. App. 1981).

       See Cornman, When Is a Debtor “In Possession” Under U.C.C. § 9-312 (4)?, 19 Ariz. St. L. J. 261 (1987).

       431 F2d 1316 (9th Cir. 1970).

       Id. at 1319.

       Id. at 1318.

       See In the Matter of Ultra Precision Indus., 503 F2d 414 (9th Cir. 1974); In the Matter of Miller, 44 BR 716 (N.D. Ohio 1984); In the Matter of Hooks, 40 BR 715 (M.D. Ga. 1984); In the Matter of Prior Bros., Inc., supra.

       200 NW2d 1 (Neb. 1972). Also see In re Henning, 69 BR 348 (N.D. Ill. 1987).

       200 NW2d at 4.

       Id. at 5-6.

       Id. at 6.

       See In the Matter of Automated Bookbinding Svcs., 471 F2d 546 (4th Cir. 1972); James Talcott, Inc. v. Assoc. Capital Co., 491 F2d 879 (6th Cir. 1974); In re Ivie & Assoc., 84 BR 882 (N.D. Ga. 1988).
      Contrary to arguments advanced by Citizens Bank, we did not adopt the “physical control” standard in Corim, Inc. v. Belvin, 202 Ga. App. 396, 398 (2) (414 SE2d 491) (1991). There, the question of whether the § 9-312 (4) grace period begins to run from the time the date the buyer obtains possession of the property or when the purchase money loan is made was not an issue.

       975 FSupp. 177, 185 (D. R.I. 1997).

       Id. at 186.

       A noted UCC commentator cites the “physical possession” cases with approval, while agreeing that the “obligation standard” should be applied to sale-on-approval cases. 9 Anderson, Uniform Commercial Code, § 9-312-84, pp. 516-517.


author: Pope, Presiding Judge.

text:
    A98A1414.
    SCRIVER v. LISTER et al.
    (510 SE2d 59)
   Pope, Presiding Judge.

Appellant Richard Scriver appeals from a default judgment entered against him in the total amount of $813,620. This is the second appearance of this matter before this Court. The case was first appealed after the trial court granted Scriver’s motion for judgment notwithstanding the verdict and his alternative motion for a new trial following a jury verdict in the plaintiffs’ favor. In Lister v. Scriver, 216 Ga. App. 741, 746-747 (456 SE2d 83) (1995), we reversed the trial court’s grant of the motion for j.n.o.v., but affirmed the grant of the motion for new trial.

The re-trial was specially set for May 19, 1997. On February 10, 1997, the counsel who had represented Scriver throughout the proceeding moved to withdraw. In connection with that motion, counsel notified Scriver of the scheduled trial date and further that he could suffer adverse consequences if he did not hire other counsel and prepare for trial. The trial court granted the motion for leave to withdraw on February 11, 1997, and on February 20, 1997, counsel for Thomas J. Lister, one of the plaintiffs, was also granted leave to withdraw. None of the parties moved for a continuance following these withdrawals, and the special setting remained on the calendar. No other counsel entered an appearance for Scriver prior to the trial date.

On the scheduled day, only one of the parties, plaintiff 690019 Ontario, Ltd. (“Ontario”) appeared. Because Scriver was not present and no counsel appeared on his behalf, the trial court granted Ontario’s motion to dismiss Scriver’s answer and counterclaim. The matter proceeded to a non-jury trial after Ontario waived its jury demand and Norman Burkoski, Ontario’s secretary-treasurer, was the only witness. At the conclusion of the evidence, the trial court awarded Ontario $278,620 in actual damages, $35,000 in attorney fees and $500,000 in punitive damages.

Judgment was entered on June 9, 1997, and within three days Scriver filed a motion for new trial or, in the alternative, to set aside the judgment. The trial court denied Scriver’s motions, and he appeals.

1. Scriver contends that the trial court erred in denying his motions because the court’s decision to proceed to trial without two of the three parties caused an intrinsic defect in the proceedings. See OCGA § 9-11-60 (c) and (d) (3). He further contends that this nonappearance was the result of fraud, accident, mistake or the acts of the adverse party. See OCGA § 9-11-60 (d) (2).

In support of his post-trial motions, Scriver submitted his affidavit stating that prior to trial he had received “express information” that Ontario and the other plaintiff did not intend to go forward with the case. Based on this information, Scriver stated he did not hire counsel until April 1997 when he engaged attorney Scott Kaplan to appear at the scheduled trial date and move for a dismissal for want of prosecution. But Scriver’s affidavit does not identify the source of this information or even assert that the information came from the plaintiffs themselves.

Attorney Kaplan also submitted an affidavit confirming that Scriver had retained him and explaining that he was unable to appear because his father had a medical emergency on the morning of the trial requiring him to make “serious and far-reaching medical decisions.” Yet nothing in the record indicates that Kaplan or Scriver attempted to notify the trial court of Kaplan’s situation either on the day of trial or in the intervening 20 days between the scheduled trial date and the entry of judgment. Therefore, despite his prior counsel’s admonitions and in reliance on information from an unspecified source, Scriver waited until the month before trial to hire new counsel. And rather than instructing his new counsel to prepare for trial, Scriver simply directed him to appear and move for a dismissal or a continuance if the plaintiffs chose to appear. And apparently neither Scriver nor his counsel attempted to ascertain the outcome of the scheduled trial prior to the entry of the judgment 20 days later.

Scriver’s negligence in failing to prepare for trial and his, and his counsel’s, lack of diligence in following the progress of the proceedings do not equate with an intrinsic defect necessitating a new trial. Moreover, “[a] judgment cannot be set aside in equity unless its rendition is unmixed with the negligence or fault of the complainant, as this judgment obviously was not. Consequently, with regard to default judgments, a motion to set aside cannot be granted when it fails to show not only a meritorious defense but a legal excuse for his non-appearance.” (Citations and punctuation omitted.) Brunswick Gas &c. Co. v. Parrish, 179 Ga. App. 495, 496 (2) (347 SE2d 240) (1986). Scriver has shown no legal excuse for his non-appearance at trial. Under these circumstances, we find that the trial court did not abuse its discretion in denying Scriver’s motions. See LaSonde v. A & E Real Estate Sales &c., 231 Ga. App. 754 (1) (500 SE2d 636) (1998); Ay cock v. Hughes, 189 Ga. App. 838 (1) (377 SE2d 689) (1989); Archer v. Monroe, 165 Ga. App. 724, 725 (1) (302 SE2d 583) (1983); cf. Kraft, Inc. v. Abad, 262 Ga. 336 (417 SE2d 317) (1992).

2. Scriver also contends that the evidence failed to support the trial court’s award of damages. “In a claim alleging that a business was damaged because the defendant breached his fiduciary duty to the business, the [trier of fact] must be given a reasonable basis upon which to calculate the amount of damage due to the breach. [Cit.]” Holland v. Holland Heating &c., 208 Ga. App. 794, 796 (2) (432 SE2d 238) (1993). “[I]f a plaintiff can show with reasonable certainty the total amount of damages and the degree to which those damages are attributable to defendant, that is sufficient to support an award.” CRS Sirrine, Inc. v. Dravo Corp., 219 Ga. App. 301, 303 (1) (464 SE2d 897) (1995).

Burkoski, Ontario’s secretary-treasurer, testified at bench trial that the corporation made an initial investment of $100,000 in the enterprise proposed by Scriver based upon his assurances that Scriver and Ontario would be 50-50 partners, with Scriver also investing $100,000, and that Scriver personally would operate the business. Scriver never put up his share of the capitalization and, instead, hired someone else to run the business. Also, unbeknownst to Ontario, Scriver sold this individual 25,000 shares in the company. The company later paid Scriver an additional $15,000 to purchase a franchise, but Scriver used the proceeds to purchase the franchise for one of his own businesses. The evidence further showed that Scriver borrowed $80,000 on behalf of its enterprise with Ontario, but retained $67,000 of that money for his own personal use. Burkoski also testified that Scriver acquired $25,000 from the commércial complex in which the enterprise was located, which he converted to his own use. To finance its share of the capitalization Ontario took out loans on other property, as did Burkoski, upon which interest has been paid. Burkoski summarized that including the original investment, the monies paid for the franchise, travel expenses, Ontario’s share of the corporate opportunities usurped by Scriver, and interest paid in the intervening years on loans, Ontario had suffered actual damages in the amount of $278,620. This evidence is sufficient to support the trial court’s award of actual damages. See generally CRS Sirrine, Inc. v. Dravo Corp., 219 Ga. App. at 303; Gaines v. Crompton & Knowles Corp., 190 Ga. App. 863, 864-865 (1) (380 SE2d 498) (1989).

Decided November 30, 1998

Arnall, Golden & Gregory, James R. Evans, Alison R. Solomon, Scott H. Kaplan, for appellant.

Teddy R. Price, for appellees.

3. Additionally, the trial court found that evidence of Scriver’s fraud and bad faith warranted an award of attorney fees under OCGA § 13-6-11. Burkoski testified and Ontario’s counsel stated in his place that through almost ten years of protracted litigation and the earlier appeal process, Ontario had incurred $35,000 in attorney fees. We find that the award of attorney fees is supported by the evidence. See Floyd v. First Union Nat. Bank &c., 203 Ga. App. 788, 792 (3) (417 SE2d 725) (1992); Shaw v. Lawrence P. Vickers & Assoc., 162 Ga. App. 97, 98-99 (290 SE2d 186) (1982).

4. Scriver also contests the trial court award of $500,000 in punitive damages. The trial court found that the cause of action in this case arose from Scriver’s actions in 1985 and 1986; therefore, this case is not subject to the current $250,000 cap on punitive damage awards. OCGA § 51-12-5.1 (g) and (h). Based upon the evidence, the trial court concluded that Scriver’s actions showed wilful misconduct, fraud, wantonness and the entire want of care which would raise the presumption of conscious indifference to the consequences of his conduct, and awarded punitive damages in an amount less than twice the actual damages in the case. Accordingly, we find no error in the award of punitive damages. See generally Hill v. Johnson, 210 Ga. App. 824, 825 (437 SE2d 801) (1993); Hulsey Pool Co. v. Troutman, 167 Ga. App. 192, 194 (2) (306 SE2d 83) (1983).

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

       A full description of the underlying facts of this case appears in that decision.


author: Smith, Judge.

text:
    A98A1714.
    FARKAS v. FARKAS.
    (510 SE2d 58)
   Smith, Judge.

Sam Farkas, Sr. (“Sam”) brought this trover action against his cousin, Edwin Farkas, Jr. (“Edwin”), to recover possession of a grandfather clock. The case was tried before a jury, which returned a verdict in favor of Sam. Judgment was entered on the jury’s verdict, and Edwin appeals, enumerating as error only the trial court’s denial of his motion for a directed verdict. Finding no error, we affirm the judgment below.

The record shows that Sam testified he had long admired the clock, which belonged to the litigants’ aunt, Gertrude Farkas Meyer, and that shortly before she died she told him it was his. After she died, in 1973, he had the clock moved to an office he shared with Edwin, where it remained for approximately ten years. At that time, Sam returned from a vacation to find the clock had been removed by Edwin. When confronted about the clock, Edwin admitted he had taken it but did not claim ownership of the clock. He stated he knew Sam had no room in his home for the clock; he was having it refurbished and Sam could have it back any time he wished. A family member who was also the cousins’ employee at the time testified that he heard this conversation and confirmed that Edwin promised to return it upon request by Sam. Sam acceded to this arrangement. He testified that although Edwin never before had claimed ownership of the clock, when Sam requested the return of the clock in 1997, Edwin refused to return it and claimed the clock was his. This action ensued.

At the close of Sam’s case-in-chief, Edwin moved for a directed verdict. The motion was made upon the ground that is now urged on appeal: that to recover in a trover action the plaintiff must prove title to the property, which Sam had failed to do. The gist of this argument is that Sam claimed the clock was an inter vivos gift from his aunt, and in order to show a valid inter vivos gift, it is necessary to show three elements: the donor’s intent to make the gift, the donee’s acceptance of the gift, and delivery, either actual or constructive. OCGA § 44-5-80. Edwin argues that no delivery was shown by Sam because the clock remained in his aunt’s possession until after her death, and Sam therefore did not have good title to the clock and could not maintain a trover action for its recovery. We do not agree with this argument, for several reasons.

First, Edwin is only partially correct regarding the right to maintain an action for trover. It is true, as noted by Edwin, that “[t]he burden is upon the person alleging title by reason of gift to prove all the essential elements of the gift (intention of the donor, acceptance, and delivery) by clear and convincing evidence. [Cits.]” McGrew v. Cooper, 110 Ga. App. 347, 350 (3) (138 SE2d 453) (1964). But to maintain a trover action, one need not always prove title. To recover in such an action, ordinarily the plaintiff must show either title or right of possession, since title is generally presumed to follow possession. Kornegay v. Thompson, 157 Ga. App. 558, 560 (4) (278 SE2d 140) (1981). In this case, Sam showed possession; the clock had been in his possession for ten years when Edwin removed it. And although the presumption of title following possession is rebuttable, id., it was not rebutted in this case. Edwin did not testify and did not claim ownership of the clock.

Decided November 30, 1998.

Martin & Hall, Michael C. Hall, for appellant.

Farkas & Ledford, Leonard Farkas, for appellee.

Second, a bailment was proved in this case, since the unrebutted evidence showed that Edwin was merely keeping the clock for Sam until he desired its return. And “[t]he rule is well settled that a bailee can not dispute or deny the title of his bailor. By the acceptance of the bailment the bailee impliedly admits the title of his bailor, and he is estopped thereafter from disputing it.” Atlanta & Birmingham R. Co. v. Spires, 1 Ga. App. 22 (1) (57 SE 973) (1907). See also Wilkins v. Hester, 119 Ga. App. 389, 390 (3) (167 SE2d 167) (1969). Because Edwin was estopped from disputing Sam’s title, the trial court did not err in denying his motion for a directed verdict.

Judgment affirmed.

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

       Although denominated a motion for summary judgment by Edwin’s counsel, it is clear that the motion was one for a directed verdict.

       Although there are exceptions to this rule, id., they are not applicable here.


author: Johnson, Presiding Judge.

text:
    A98A0785.
    BOLAND v. GEORGIA EYE INSTITUTE, INC. et al.
    (509 SE2d 342)
   Johnson, Presiding Judge.

Ryan Boland, M. D., sued Georgia Eye Institute, Inc. (“GEI”) and Memorial Medical Center, Inc. (“MMC”) for alleged breach of an employment agreement. Boland filed this appeal from the grant of summary judgment to GEI and MMC on Counts 1 and 3 of his complaint and from the denial of his motion for summary judgment on Count 1.

The record shows that in December 1992 Boland signed a contract agreeing to cease the private practice of opthalmology and be employed by GEI, a subsidiary of MMC. The agreement had an initial term of ten years and provided for an annual base salary of $325,000. The agreement provided for automatic termination upon a “Determination of Illegality.” The phrase “Determination of Illegality” was defined in the contract as “receipt by MMC and Physician of: (A) an opinion of counsel to MMC (and the vote of more than a majority of the members of the Board of Directors of the Institute concurring with such opinion) that this Agreement violates (i) a federal or state law, and/or (ii) a regulation or rule of the Internal Revenue Service . . . or a similar authority having jurisdiction over the practice of medicine or payments in consideration thereof.”

The contract also provided that: “Upon a Determination of Illegality, the Physician shall commence and attempt to complete in good faith negotiations to satisfy the Termination requirements; provided, however, in no event will the physician he paid less than his Base Salary for the remainder of the initial term of this Agreement from either MMC or the Institute and this provision shall survive any Determination of Illegality .” (Emphasis supplied.)

Soon after the agreement was executed, MMC and GEI (collectively “MMC/GEI”), became concerned, based on IRS regulations, with whether certain provisions in the employment agreement might cause them to lose their tax-exempt status. MMC/GEI attempted to renegotiate the contract with Boland so it would comply with IRS regulations. Boland did not agree with some of the terms in the proposed contract and failed to sign the agreement by the deadline set by MMC/GEI.

In July 1995, MMC/GEI sent Boland a letter stating that the agreement was terminated “effective immediately” because Boland had not signed the new IRS-approved agreement. The letter indicated that the IRS required all GEI physicians to execute the new agreement in order for GEI to obtain tax exemption, and that failure of GEI to obtain tax-exempt status would pose a risk to the tax-exempt status of MMC. The letter further provided that GEI’s counsel and the majority of GEI’s Board of Directors agreed that retaining the current agreement would result in a violation of IRS rules and regulations. GEI then gave Boland notice it was terminating the agreement and that he would continue as an employee at will at his current salary. The MMC/GEI letter added that it expected a new agreement to be reached within 120 days. Attached to the letter was a letter from counsel for MMC/GEI stating that the employment agreement did not meet various requirements imposed by the IRS and threatened the tax-exempt status of MMC/GEI.

The parties did not reach a new agreement and Boland left GEI. He then sued MMC/GEI seeking a declaratory judgment that he was entitled to his base salary for the remaining seven years of the initial term of the agreement. He amended the suit to allege MMC/GEI wrongfully terminated the agreement. Boland appeals from the trial court’s grant of MMC/GEI’s motion and the denial of his motion for summary judgment on Count 1 (payment of base salary for remaining years) and the grant of MMC/GEI’s motion for summary judgment on Count 3 (wrongful termination of the contract).

1. Boland contends the trial court erred in granting MMC/GEI’s motion for summary judgment and denying his motion for summary judgment on his claim of entitlement to his base salary for the years remaining on the initial term of the agreement. We find that neither party is entitled to summary judgment on this issue.

“The cardinal rule of contract construction is to ascertain the intention of the parties. OCGA § 13-2-3. Contract construction is a three-step process. . . . First, if no ambiguity appears, the trial court enforces the contract according to its terms irrespective of all technical or arbitrary rules of construction. That is, where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. Secondly, if ambiguity does appear, the existence or non-existence of an ambiguity is itself a question of law for the court. Finally, a jury question arises only when there appears to be an ambiguity in the contract which cannot be negated by the court’s application of the statutory rules of construction. . . . [A] contract should be construed by examining the agreement in its entirety, and not merely by examining isolated clauses and provisions thereof.” (Citations and punctuation omitted.) Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) (430 SE2d 858) (1993). We find that the contract in this case contains an ambiguity which cannot be resolved by the court’s application of the statutory rules of construction. The trial court, therefore, erred in not allowing the issue to be decided by a jury.

To support his position that the contract requires continued payment of his salary, Boland points to the fact that MMC/GEI terminated the agreement based upon the “Determination of Illegality” clause, which provides that he will receive no less than his “Base Salary” for the remainder of the initial term of the contract when the agreement is terminated on that basis. Examination of that provision in isolation might support a conclusion that Boland is to be paid the base salary regardless of whether he continues to provide any services. Boland stresses that he gave up a successful practice and expected financial security in exchange for MMC/GEI’s right to terminate the contract early. He claims that the formation of MMC/GEI altered the medical market in the community, depleting the pool of patients available to an opthalmologist in private practice.

MMC/GEI, on the other hand, argues that the parties did not intend Boland to be paid without working, that the intent was for him to continue working while they worked out a new contract which would not be illegal. MMC/GEI points to the fact that the illegality clause refers to “Base Salary,” and that elsewhere the contract provides that “Base Salary” is meant “to compensate Physician for his services.” MMC/GEI also argues that interpreting the contract as urged by Boland would be tremendously unfair and would result in a gross disparity of consideration.

Inasmuch as the ambiguity in the contract cannot be resolved by the trial court as a matter of law, the court erred in granting summary judgment to MMC/GEI. The grant of summary judgment to MMC/GEI is reversed and the denial of summary judgment to Boland is affirmed.

2. We agree with Boland’s contention that summary judgment for MMC/GEI was improperly granted on the question of whether MMC/GEI breached an implied duty of good faith in terminating the agreement. In Georgia, every contract includes the implied duty of good faith. Fowler v. Smith, 230 Ga. App. 817, 820 (2) (a) (498 SE2d 130) (1998). “On motion for summary judgment the evidence is viewed in a light most favorable to the respondent, and the respondent is given the benefit of every doubt. The movant has the burden to prove the non-existence of any genuine issue of material fact, and in so determining, the court will treat the respondent’s paper with considerable indulgence.” (Citations and punctuation omitted.) Haire v. City of Macon, 200 Ga. App. 744, 746 (409 SE2d 670) (1991). Although there was evidence of good faith, there was also some evidence indicating the contrary. Boland presented evidence showing he attempted to negotiate a new contract and accepted changes proposed by the IRS but was terminated anyway. He also pointed to evidence that MMC/GEI’s failure to reach accord on a new agreement may have been in retaliation for his questioning management practices and the propriety of certain provisions in the proposed agreement. Whether MMC/GEI exercised good faith in terminating the agreement is a question for the jury. See generally Brown v. Freedman, 222 Ga. App. 213, 216 (2) (474 SE2d 73) (1996); Jones v. Quigley, 169 Ga. App. 862, 865 (2) (315 SE2d 59) (1984). The trial court erred in granting summary judgment to MMC/GEI on this issue.

Judgment affirmed in part and reversed in part; case remanded.

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

Decided November 13, 1998

Reconsideration denied December 1, 1998.

Chilivis, Cochran, Larkins & Bever, Anthony L. Cochran, John K. Larkins, Jr., for appellant.

Hunter, Maclean, Exley & Dunn, William E. Dillard III, John M. Tatum, for appellees.


text:
    A98A1069.
    BREVARD, INC. v. BROADWATER MANAGEMENT, INC.
    (508 SE2d 747)
   Smith, Judge.

Brevard, Inc. appeals from the trial court’s grant of a directed verdict to Broadwater Management, Inc., d/b/a Ramada Hotel and Conference Center-Dunwoody in an action brought by Brevard alleging fraud and breach of a contract to provide hotel rooms for Brevard’s clients. We conclude that because the evidence was in conflict as to a material issue and the evidence did not demand a verdict in favor of Broadwater, a directed verdict was not warranted as to one of Brevard’s claims. We therefore reverse the judgment below as to that claim and remand the case for trial.

The evidence showed that Brevard, Inc., a consultant to the U. S. Drug Enforcement Administration (“DEA”) and the U. S. Immigration and Naturalization Service (“INS”), entered into several “facilities agreements” with Broadwater Management, Inc. to provide rooms and services at a Dunwoody hotel during the 1996 Olympic Games for agents of the two government agencies. Broadwater, a consolidator that obtains hotel accommodations, had an agreement with the owner of the hotel to arrange accommodations. Brevard also executed “booking” agreements with Broadwater, under which it agreed to pay for the rooms. Brevard was paid, in turn, by its customer agencies.

Brevard alleged in its complaint that in entering into the contracts, it relied on certain representations made by Broadwater that the hotel would be renovated and would become affiliated with the Sheraton chain prior to the occupancy date. When the renovations were not completed and the hotel was not Sheraton-affiliated at the time of occupancy by the agencies, Brevard withheld a portion of the negotiated fee and brought suit against Broadwater, alleging breach of contract, fraud, and violation of the Fair Business Practices Act. Broadwater answered and counterclaimed for funds owed by Brevard under the “booking” agreements. The trial court granted Broadwater’s motion for summary judgment on its counterclaim and on Brevard’s claim under the Fair Business Practices Act. The trial court concluded, however, that material issues of fact remained as to Brevard’s claims of breach of contract and fraud and that these claims must be tried.

At the trial of these claims, before a different trial judge and a jury, Broadwater moved for a directed verdict after the close of Brevard’s case-in-chief. This motion was granted as to both counts of Brevard’s complaint. The jury then heard evidence as to Broadwater’s claim for prejudgment interest and its claim for attorney fees under OCGA § 13-6-11. It returned a verdict for Broadwater for $10,000 prejudgment interest and in favor of Brevard on the claim for attorney fees.

1. Brevard contends the trial court erred in granting Broad-water’s motion for directed verdict.

(a) At trial, Broadwater addressed its motion to both remaining counts of Brevard’s complaint. Broadwater argued at trial that Brevard could not recover on the fraud count because the representations made applied to future events. See Bradley v. British Fitting Group, 221 Ga. App. 621, 624 (4) (472 SE2d 146) (1996). But on appeal, Brevard addresses only the grant of a directed verdict with respect to the breach of contract claim. Brevard’s enumeration does not encompass the fraud claim, nor does its argument address this claim. We therefore deem waived any argument that a directed verdict was erroneously granted as to the claim of fraud. See Court of Appeals Rule 27 (c) (2); Billy Cain Ford v. Kaminski, 230 Ga. App. 598, 602 (4) (496 SE2d 521) (1998).

(b) We agree with Brevard, however, that a directed verdict was improper as to its claim for breach of contract. In our review of a trial court’s grant of a motion for directed verdict, we review the evidence and resolve doubts and ambiguities in favor of the party opposing the motion. A directed verdict is proper only when no conflict exists in the evidence as to material issues, and the evidence introduced, together with all reasonable deductions therefrom, demands a certain verdict. Plane v. Uniforce MIS Svcs., 232 Ga. App. 757, 758 (503 SE2d 621) (1998).

Broadwater’s motion for a directed verdict as to this claim was made upon the ground that Brevard entered into the facilities agreements as agent for its clients, the DEA and the INS. OCGA § 10-6-82 provides, with certain exceptions set forth in the statute, that “[generally, an agent shall have no right of action on contracts made for his principal.” It follows, therefore, that if Brevard executed the contract as a disclosed agent for its customers, it had no right to sue on the contract. The question thus becomes one of the capacity in which Brevard executed the contracts in issue, and the contracts themselves are internally inconsistent with respect to that issue. The very first paragraph of each facilities agreement identifies the parties as “Broadwater Management Inc., a Nevada corporation (‘Consolidator’) and Brevard, Incorporated as Agents on behalf of [either the DEA or the U.S. INS, Investigation Division] (‘Guest’) (Consolidator and Guest are collectively referred to as the ‘Parties’ and sometimes individually a ‘Party’).” The words “on behalf of” indicate that Brevard did not enter into the contracts as a principal, but instead as a disclosed agent for its clients. But on the last page of each contract, signature lines are provided for “Consolidator: Broadwater Management, Inc., a Nevada Corporation, By: _ Name: Mehdi Khimji, Title: President,” and “Guest: Brevard, Incorporated, By: _Name: Nancy Hallberg, Title: President.”

This apparent internal contradiction creates an ambiguity in the contract with regard to whether Brevard executed the contracts in its own name or as agent for its clients. Contrary to the arguments of both parties, this ambiguity is not resolved by the placement of the word “guest” in relation to either Brevard or its client in the first paragraph of the contracts; we can conclude nothing about the intention of the parties from the placement of this word. Under these contracts, the “guest” could be Brevard, the federal agency on behalf of whom Brevard was acting, or Brevard as agent for the federal agency. Because the evidence did not demand a verdict in favor of Broadwater, the trial court erred in removing this issue from the jury’s consideration.

2. Brevard maintains that the positions taken by Broadwater as to the counterclaim (on which summary judgment was previously granted in favor of Broadwater) and the main claim were “substantively inconsistent.” Brevard argues that in pressing its counterclaim, Broadwater necessarily took the position that Brevard was a party to the contracts, while in defending against the main claim Broadwater asserted that Brevard did not have the right to sue on the contracts because it was not the real party in interest but executed the contracts merely as an agent for its clients. Brevard asserts that the position taken by Broadwater in its counterclaim worked a “judicial estoppel” barring Broadwater from, asserting that Brevard was not the principal party to the agreements.

In making this argument, however, Brevard ignores the fact that the “facilities agreements, which formed the subject of Brevard’s action against Broadwater,” and the “booking agreements” in issue in the counterclaim, were separate contracts; Brevard’s status was not identical in the two types of agreement. In fact, the record shows that the signature lines in the “booking agreements” reflect this difference. In contrast to the “facilities agreements,” the “booking agreements” were signed by Hallberg as president of Brevard, without reference to its clients or any mention of agency. This contention has no merit.

Judgment reversed and remanded.

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

On Motion for Reconsideration.

On motion for reconsideration, Broadwater suggests we have overlooked controlling precedent, citing Rodriguez v. Miranda, 234 Ga. App. 779 (507 SE2d 789) (1998). Broadwater argues that Rodriguez stands for the proposition that an agent’s acknowledgment of an agency relationship within the body of a document negates any signature in a non-representative capacity. This is incorrect. Rodriguez did not set forth a new rule. It simply applied the venerable rule that in construing contracts, the intention of the parties must govern. In that particular case, although the signature line did not reflect the representative capacity of the signer, the body of the document showed clearly that it was made in a representative capacity. Id. at 784 (3). By citing as a comparison Cohen v. Capco Sportswear, 225 Ga. App. 211 (483 SE2d 634) (1997), we acknowledged in Rodriguez that the opposite could also be true. Id. at 784, fn. 14. In Cohen, although a conflict existed between a statement in the body of the document and the signature line, the substance of the document showed clearly that it was signed in an individual capacity. In this case, as stated in the opinion, the ambiguity cannot be resolved, and summary judgment was therefore improper.

Broadwater also asserts that we overlooked a material fact in the record: a solemn admission in judicio that Brevard was acting as agent for the federal agencies that were its clients. But Brevard’s statement was not a solemn admission in judicio, as argued by Broadwater. Its statement relates to a legal conclusion and reflects Brevard’s understanding with regard to it. “The rule as to admissions in judicio applies only to admissions of fact and does not apply to opinions or conclusions. [Cits.]” Aycock v. Calk, 228 Ga. App. 172, 174 (491 SE2d 383) (1997). Moreover, this very statement sets up the ambiguity in issue, because it conflicts with Brevard’s signature in an individual, non-representative capacity.

Decided November 3, 1998

Reconsideration denied December 1, 1998

Freeman Law Firm, Joe C. Freeman, Jr., Douglas P. McManamy, Christine M. Stadler, for appellant.

Minkin & Synder, Michael J. King, G. Brian Raley, for appellee.

       Brevard originally also sought an injunction, which was granted, preventing Broad-water from exercising its innkeeper’s rights and locking out the agents. This is no longer in issue.

       None of the exceptions set forth in the statute appears to be applicable to Brevard.


text:
    A97A2236.
    SEAY v. CLEVELAND et al.
    (510 SE2d 87)
    Decided December 1, 1998.

      Smith, Howard & Ajax, Harvey S. Gray, Michael D. St. Arnand, for appellant.

      Baker & Whitaker, Elliott R. Baker, William E. Whitaker, William G. Hasty, Jr., Jonathan A. Pope, for appellees.

       For Birdsong, P. J., who is deceased.

   Eldridge, Judge.

In Seay v. Cleveland, 270 Ga. 64 (508 SE2d 159) (1998) the Supreme Court reversed the judgment of this Court’s opinion in Seay v. Cleveland, 228 Ga. App. 836 (493 SE2d 30) (1997). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment reversed.

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