text:
    A93A0928, A93A0929.
    AMERICAN HONDA MOTOR COMPANY, INC. v. WILLIAMS & ASSOCIATES, INC. et al.; and vice versa.
    (431 SE2d 437)
   Birdsong, Presiding Judge.

Case No. A93A0928 is an appeal by appellant/defendant American Honda Motor Company, Inc. (Honda) of the order of the superior court granting motion for partial summary judgment on Counts 4, 5, 6, 7 and 8 and certain portions of Count 3 of the amended counterclaim of Honda to appellees/plaintiffs, Williams & Associates, Inc. et al. (Williams). Honda also appeals Section 1 of the order of the superior court which denied Honda’s motion for partial summary judgment on the issue of responsibility for soil testing. Case No. A93A0929 is a cross-appeal by appellee Williams of Section 1 of the order of the superior court which denied summary judgment to it on the issue of responsibility for soil testing.

Williams entered into a construction contract with Honda to perform certain construction of a Honda distribution and training center (project), including site preparation; Williams subcontracted the site preparation work to At-Less Construction Company. This contract did not include the laying of the concrete slab for the warehouse, which apparently was done by Suitt Construction Company pursuant to the terms of a separate contract. Honda contracted with Heery & Heery Architects and Engineers, Inc. (Heery) to provide design and construction management services for the project. Honda also contracted with Soil & Material Engineers, Inc. (S & ME) to provide geotechnical consulting and to perform certain soil tests on the project during design and construction thereof; S & ME agreed to perform tests necessary to determine whether soil on site was “suitable” or “satisfactory” in accordance with contract definitions. In April 1984, At-Less filed suit against Williams, Heery, and Honda apparently after the fill dirt that had been asserted as being satisfactory under the contract could not be dried for timely use on the project. Williams filed cross-claims against Honda and Heery relating to problems encountered by Williams and At-Less as to surcharge soil materials. (Surcharge soil is placed temporarily on fill dirt to aid soil compacting.) When this litigation was initiated the project was not complete and Williams continued to work thereon for approximately another year. The project design required excavation of large quantities of soil from one area and extensive structural fill of other areas on which buildings were to be erected. The contract specified that only satisfactory fill was to be used and it established classification standards for determining whether soil was deemed satisfactory. The contract required certain tests to be performed on any soil which was proposed to be used as structural fill; during the course of discovery it was learned that such tests had not been performed as required. There is no dispute that S & ME was the entity which was to perform the tests on the fill material; however, Honda contends that a substantial dispute exists as to whose responsibility it was to initiate the testing procedure and who had ultimate responsibility to see that the tests had been carried out. Honda claims Williams had this and other responsibilities; Williams contends it was the responsibility of Heery and/or S & ME to determine what soil was to be tested and when, and that it had no contractual obligation to initiate such testing. This dispute led to the filing of cross-motions by the parties for partial summary judgment on the issue of responsibility for soil testing. The trial court denied both motions. Held:

Case No. A93A0928

1. Appellant Honda’s first, third, fourth, fifth, and sixth enumerations violate OCGA § 5-6-40, which pertinently provides that each enumeration of error “shall set out separately each error relied upon.” When such a violation occurs, this court may elect to review any or none of the errors which were asserted in a single enumeration. See, e.g., Parsons v. Chatham County Bd. of Commrs., 204 Ga. App. 130, 132 (3b) (418 SE2d 459); Morris v. State Farm Mut. Auto. Ins. Co., 203 Ga. App. 839, 841 (b) (418 SE2d 119); Robinson v. State, 200 Ga. App. 515, 518 (2) (408 SE2d 820); West v. Nodvin, 196 Ga. App. 825, 830 (4c) (397 SE2d 567); see Ga. Const. of 1983, Art. VI, Sec. I, Par. IV. In the exercise of our judicial discretion, we elect to review as to each of the above enumerations only the error, repetitively asserted in each, that the court erred in holding Williams had no independent duty to disclose the information known to it, with respect to the soil conditions, other than those described by Civil Practice Act § 9-11-26 (b) (4).

2. The following facts are pertinent to the issue of Williams’ duty to disclose information as to unsatisfactory soil conditions on the project. Honda in essence contends that Williams had a duty to disclose information as to the unsatisfactory classification of the soil, according to contract standards, used as structural fill underneath the eastern side of the warehouse building. That work appears to have been performed in July and August of 1983, under the daily observation and apparent inspection of Honda’s testing service, S & ME and Heery. S & ME and Heery approved that work as having been performed in accordance with contract specifications and Williams and At-Less received payment for that work.

In the summer of 1984, after litigation had commenced, a geotechnical expert from Georgia Tech was hired by the litigation counsel for Williams to analyze the surcharge soils with which a problem had been encountered. The condition of the surcharge soils apparently was then at issue in the pending litigation, it being contested whether such soils were “satisfactory” or “unsatisfactory” for use under the contract. If the surcharge soils were “satisfactory” then with proper drying they would be available for use as structural fill in the project without necessitating Williams and At-Less to transport satisfactory fill dirt from other locations.

On July 5, 1984, the geotechnical expert reported to Williams’ counsel and other Williams’ representatives that four samples had been taken from the surcharge soil material and tested. He concluded that each of these samples should have been classified as “unsatisfactory” under the contract, and that there was a relationship between surcharge soil which was unsatisfactory and the drying problems that had been encountered. However, the expert also stated that, as he had not witnessed the taking of the samples, he could not be sure they were representative of the surcharge soil and more samples would have to be taken and tested, although he harbored a question whether the surcharge was suitable.

On July 7, 1984, additional samples were taken in the presence of a Williams employee, including four samples of soils taken from an area where soil material previously had been cut or excavated and may have been used as surcharge, and one sample from an excavated ditch in an area where fill material was thought to have been removed and near where the warehouse was being constructed. Tests were conducted on these additional samples and another meeting was held on July 26, 1984, with the attorneys, the same employee and Mr. Williams. No written report of the test was obtained but the expert had obtained test result information by telephone. At this meeting the expert noted that in the S & ME report of March 13, 1983, it had been stated that an Atterberg Limits test had been performed on the site soil material — this is the type of test necessary to determine whether the soil was satisfactory under the contract specifications. The expert further explained that a building could be built on unsatisfactory soil, as defined in the contract specification, if properly designed for that soil. The president of Williams was unaware of the specific locations of the individual samples taken by the expert or the specific logic for the selection of these particular samples, and this was not discussed at the meeting. At this meeting the expert advised that a soil scientist should be employed to identify the types of soil and the vertical and horizontal extent of those soils in their original in situ state before excavation in order, inter alia, to determine the extent of the unsatisfactory soil material on site. Of the 21 soil samples taken and tested, 19 of them tested unsatisfactory according to the expert’s analysis. However, Honda’s agents had previously reported the surcharge soil as satisfactory, and Mr. Williams expressly stated: “As of July 26, 1984,1 and everyone else at Williams to my knowledge had absolutely no awareness of the fact that the surcharge soil had not been tested and classified by [S & ME]” and he did not understand why the expert’s description of the test results indicated the surcharge to be unsatisfactory. Williams received a written report of the expert’s findings in late December 1984, after the foundation of the warehouse had been completed; this report was delayed due to the expert’s diagnosis of having cancer in August 1984. The report explained that six of the samples in question were “thought to be” representative of fill placed under the eastern part of the warehouse, and that one of these tested “satisfactory” and the others “unsatisfactory.” By the time of this report, Williams had substantially completed all of its work on the job at the Honda site, and without question all of the concrete slab placement had been completed by Suitt Construction Company in all of the building areas. Ultimately the expert’s physical condition improved temporarily and he was identified as a contemplated trial witness and deposed by the other parties. Thereafter, the expert suffered a relapse and died.

In August 1984, a soil scientist was hired as a litigation consultant, as recommended, to conduct further investigation and testing. At the time the expert’s written report was received in December 1984, Williams had received neither an oral nor written report from the soil scientist, and he had received no records in discovery showing which Atterberg Limits tests might have been performed or upon what soil it had been performed and when. The report of the soil scientist was received by Williams in June 1985.

The record in regard to disclosure of the above information reveals that, as found by the trial judge, the preliminary information and opinions developed by the geotechnical expért/litigation consultant were not disclosed to Honda in the summer of 1984; rather, the expert’s identity, test results, and final report and opinions were disclosed to Honda and the other parties in November and December 1985 in the course of the litigation in accordance with the provisions of OCGA § 9-11-26 (b) (4). The record also supports the trial court’s finding that S & ME did not conduct tests (as required by its contract with Honda) on the surcharge soil material or on any other soil materials used in the site work as controlled fill.

The counterclaims at issue in Honda’s motion for partial summary judgment were based on Williams’ refusal to disclose its litigation consultant/expert and that expert’s opinion prior to the expert being named a trial witness. The trial court concluded that Williams “fully complied with the requirements of Rule 26 (b) (4)” by disclosing the expert’s name to Honda at the time Williams determined that the expert’s opinions would be used during trial; it further concluded that “the contract provisions relied upon by [Honda] do not provide a contractual obligation that [Williams] disclose facts and opinions developed by a litigation expert.” “The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” OCGA § 23-2-53. There exists no confidential relationship between Honda and Williams, and even when the evidence is viewed most favorably for Honda, we find, as a matter of law, no particular circumstances operating to mandate such a communication between the parties. The parties contracted on virtually equal terms and at arms-length, and in fact Honda elected to employ S & ME to perform soil testing, thereby electing not to rely on Williams for soil testing and classification. These facts, when construed most favorably for Honda, nevertheless reveal the intent of the parties, OCGA § 13-2-3, that Honda would not and could not either expect or rely upon any form of communication regarding soil classification from Williams.

The trial court could construe the contract as a matter of law and ascertain whether it required such communication (cf. Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308)), and we agree with her legal conclusions pertaining thereto. The provisions of the contract relied upon by Honda do not expressly require Williams to disclose any information regarding the results of the particular soil tests which it independently obtained after litigation had been commenced, or to disclose the name of any expert which it employed to advise it in regard to these matters; nor does the contract when viewed as a whole reveal such to be the parties’ intention. Tower Financial Svcs. v. Jarrett, 199 Ga. App. 248 (404 SE2d 622); Clay v. Dept. of Transp., 198 Ga. App. 155 (400 SE2d 684); Graham v. Hogan, 185 Ga. App. 842 (366 SE2d 219) and Capriulo v. Bankers Life Co., 178 Ga. App. 635 (344 SE2d 430), cited by Honda, are factually distinguishable and not controlling.

Appellant also argues there exists an implied duty in every construction contract to perform the work skillfully, carefully, and in a workmanlike manner (see, e.g., Shaw v. Petersen, 180 Ga. App. 823 (350 SE2d 831); Mayor &c. v. Clark-Dietz &c., 550 FSupp. 610, 624 (9) (ND Miss.)). While we do not take issue with this legal proposition, it is not controlling and dispositive of the question whether Williams had a duty of disclosure under the unique facts of this case. Honda, particularly through its election to rely on the independent services of an architect and a soil testing firm, was in an equal or better position than Williams to test the soil being used as fill dirt and to determine whether it met contractual standards. “While concealment of material facts may amount to fraud when the concealment is of intrinsic qualities the other party could not discover in the exercise of ordinary care [cit.], in an arms-length business or contractual relationship [as existed between Honda and Williams] there is no obligation to disclose information which [as in this case] is equally available to both parties.” Southern Intermodal &c. v. Smith &c. Co., 190 Ga. App. 584, 586 (1) (379 SE2d 612); compare Pinkerton &c. Co. v. Roadway Exp., 650 FSupp. 1138, 1147 (12) (N.D. Ga.). It is not contested that Williams violated CPA Rule 26 (b) (4) as to the ultimate disclosure of this information; accordingly, we find that the trial court did not err.

Additionally, Mr. Williams states by way of affidavit that “to this day, I do not know for certain that the soil underneath the warehouse or other buildings is ‘unsatisfactory,’ since to my knowledge there have been no direct coring or sampling of the soil underneath the warehouse or the other buildings so that they can be tested and classified as satisfactory or unsatisfactory.” (Emphasis supplied.) The vice-president of Williams stated in his affidavit that it never occurred to him to communicate the test data developed by their litigation expert to appellants, and that Williams had already requested that Honda and Heery classify the surcharge soil as “unsatisfactory,” to authorize its removal from the job site and authorize the importing of new soil as contractual “extras” and that Honda, Heery, and S & ME “had steadfastly refused to do this, taking the exact opposite position that the surcharge soil materials had been tested and were satisfactory.” The vice-president further stated: “It never occurred to me that any of the surcharge soil or the fill soil in the warehouse or any of the other building locations . . . might have been unsatisfactory soil, until long after all of the work on the job site had been completed by Williams & Associates, Inc. and until long after all of the concrete slab and suspended slab work had been done in all of these areas. Again, this did not occur to me until after the deposition of Mr. Wilmer in December, 1987, which made it clear that [S & ME] had not conducted soil tests necessary to classify any of the soil used as fill as satisfactory or unsatisfactory according to the contract specifications.” Conversely, appellant relies upon circumstantial evidence to establish that Williams had actual knowledge, prior to the time Williams’ expert’s name was released in discovery and his deposition subsequently taken, that the fill soil under the warehouse and buildings was unsatisfactory. “We have consistently held that in passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.” (Punctuation omitted.) Rowell v. McCue, 188 Ga. App. 528, 531 (373 SE2d 243). For this additional reason, we find the trial court did not err as to the issue of duty to disclose; a grant of summary judgment must be affirmed if it is right for any reason. Newsome v. Dept. of Human Resources, 199 Ga. App. 419, 423 (3) (405 SE2d 61).

3. Appellant Honda asserts the trial court erred in granting partial summary judgment as to the entirety of Count 3 of its amended counterclaim grounded in negligence. We disagree. Williams had no duty to notify Honda of soil conditions as averred in Count 3. See Division 2 above. The only remaining act of negligence averred in Count 3 with sufficient specificity to meet the liberal pleading requirements of the Civil Practice Act, as discussed in Bazemore v. Burnet, 117 Ga. App. 849, 852 (161 SE2d 924), is that Williams negligently failed to ascertain that the soil was satisfactory before placing it as fill beneath the eastern end of the warehouse. This particular averment of negligence is grounded upon acts or omissions which, while constituting the violation of a particular contractual duty, would not otherwise constitute the violation of a duty owed to Honda independent of the contract itself. “[A] contractual violation is a tort only if in addition to violating a contract obligation it also violates a duty owed to plaintiff independent of contract to avoid harming him.” (Punctuation omitted.) Bowdish v. Johns Creek Assoc., 200 Ga. App. 93, 95 (3) (406 SE2d 502); accord Sheppard v. Yara Eng. Corp., 248 Ga. 147 (281 SE2d 586); see Keys v. Enrichment Svcs. Program, 183 Ga. App. 8 (357 SE2d 852) (independent injury over and above duty created by contract required for tort).

4. Appellant Honda’s seventh enumeration of error in Case No. A93A0928 will be considered with cross-appellant Williams’ enumeration of error in Case No. A93A0929 below.

Appellant’s remaining assertions are meritless.

Case No. A93A0929

5. Cross-appellant/appellee Williams asserts the trial court erred in failing to grant its motion for summary judgment against Honda on the issue of responsibility for soil testing; cross-appellee/appellant similarly asserted as error in Case No. A93A0928 that the trial court erred in failing to grant its motion for partial summary judgment against Williams on responsibility for such testing. The record reflects that Williams did not file a formal motion for partial summary judgment on the responsibility for testing issue; however, it urged in its response to Honda’s motion that it be granted summary judgment on this issue. Compare Howell Mill-Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169 (1) (390 SE2d 257) (authority to grant summary judgment to nonmoving party). Both enumerations lack merit. Pretermitting whether cross-appellant adequately preserved his enumeration for appellate review, by failing to file a formal motion and obtaining a ruling thereon below, is that cross-appellee/appellant adequately raised and preserved for appeal the question whether the trial court correctly ruled that the responsibility for soil testing (or the initiation of soil testing) under the contract was a jury issue.

Honda and Heery argued, inter alia, to the trial court that since Williams was required to use only satisfactory soil, as that term is defined by the contract, Williams also had the responsibility to initiate the soil tests, as it was the only party who knew when the tests were needed and of what soil. Williams argued that the contract did not expressly place such a burden on it, and that the conduct of Honda and the presence of S & ME on the job site belied such a contractual intent. The trial court expressly noted in its order that “in addition to differing interpretations of the meaning of the contract language, all parties contend that the acts and conduct of the parties on the job site support their respective interpretations of the contract.” The trial court examined the contract language and found that in regard to the issue of “who was responsible for the administrative task of scheduling or the initiation of the testing” that the contract was ambiguous; and that the contract ambiguity could not be resolved “even after applying the rules of construction,” and that the parties’ intention remains uncertain.

Decided May 11, 1993.

Bowman S. Garrett, Jr., Thomas A. Soderberg, for appellant.

Jones, Cork & Miller, H. Jerome Strickland, Thomas C. James III, Robert C. Norman, Jr., for appellees.

The cardinal rule of contract construction is to ascertain the intention of the parties thereto. OCGA § 13-2-3. We agree that, as to the issue of who was administratively responsible for the initiation of soil testing, the contract is ambiguous to such a degree that the question of the parties’ intent in this regard cannot be ascertained as a matter of law by applying usual statutory rules of contract construction. Further, the course of conduct and actions of the various parties at the job site is not without certain factual controversy; and where unresolved ambiguity exists, “ ‘[t]he construction placed upon a contract by the parties thereto, as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them.’ ” Head v. Scanlin, 258 Ga. 212, 214 (1) (367 SE2d 546), citing Scruggs v. Purvis, 218 Ga. 40, 42 (126 SE2d 208). The trial court in this case attempted to follow the two-step procedure of Travelers Ins. Co., supra, and was unable to resolve the ambiguity and to ascertain the true intent of the parties as to the issue of initiation of soil testing. It then elected to send this matter to the jury. Where complex, contested fact-issues essential to determining either the contractual intent of the parties or obscure and contradictory contract provisions are involved, the jury should find the facts. Id. at 700. Thus, it was held in Travelers Ins. Co., supra at 700, that “[e]xcept in cases where the meaning of obscurely written words is involved, and where there is evidence tending to show that the meaning of such words was differently understood in one way or another by the parties to the contract it is . . . improper for the court to give the jury any instruction with regard to the manner in which the contract should be construed.” However, we agree with the trial court that this is one of those unique instances where the issue should be sent to the jury under proper instructions. The trial court did not err in denying cross-appellee/appellant’s motion for summary judgment as to responsibility for testing and cross-appellant/appellee’s informal request for summary judgment as to responsibility for soil testing, and in submitting the issue to the jury.

Judgments affirmed.

Pope, C. J., and Andrews, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A93A0012.
    REVELLE et al. v. HOME SITES, LTD. et al.
    (431 SE2d 405)
   McMurray, Presiding Judge.

A. W. Revelle, Jr., Hellen Revelle and Mary P. Sawilowsky (plaintiffs) brought an action against Home Sites, Ltd. (“Home Sites”) and Crowell & Co., Inc. (“Crowell”), alleging that they (plaintiffs) are homeowners in a subdivision known as The Abbeys at West Lake; that Home Sites owns 29 undeveloped lots in the subdivision; that Crowell markets and sells real property in the subdivision and. that Home Sites and Crowell induced plaintiffs and others to purchase land in the subdivision by marketing the property as an “upscale subdivision.” Plaintiffs allege that Home Sites and Crowell thus “have a confidential relationship and a fiduciary duty ... to use appropriate diligence to insure that all construction of homes upon all of the lots in [the subdivision] be of at least the same quality of construction, design, materials and size as are now present in the majority of the existing houses in [the subdivision].” Home Sites and Crowell denied the material allegations of the complaint and the parties filed opposing motions for summary judgment. The trial court entered summary judgment for Home Sites and Crowell, finding “no evidence of confidential relationship, fiduciary duty, promissory estoppel, implied covenants, or any other theory of recovery. . . .” This appeal followed. Held-.

“ ‘ “Our declaratory judgment statutes provide that there must be an actual or justiciable controversy between adverse parties before they can be invoked. [Cit.] When a complaint for declaratory judgment shows upon its face . . . that there is no actual or justiciable controversy between adverse parties, a trial court does not have jurisdiction to render a declaratory judgment. ... An actual or justiciable controversy was not present in this alleged litigation, and the trial court was without jurisdiction to enter a judgment. This being so, the judgment must be set aside as nugatory.” (Cit.) Accordingly, . . . the judgment below must be vacated. As [plaintiffs] failed to demonstrate that [they were] in need of any direction from the court with respect to future conduct on [their] part which might increase [their] liability or otherwise affect [their] interests, the trial court erroneously entered an advisory declaratory judgment which held, in effect, that, should the accrued rights and obligations at issue result in future litigation, then [defendants] would prevail on the merits.’ Oxford Fin. Cos. v. Dennis, 185 Ga. App. 177, 178 (363 SE2d 614) (1987).” Logan Paving Co. v. Peoples Bank & Trust, 196 Ga. App. 42, 43 (395 SE2d 287).

Decided April 29, 1993 —

Reconsideration denied May 13, 1993

Allgood & Daniel, N. Kenneth Daniel, Jay M. Sawilowsky, for appellants.

J. David Roper, for appellees.

Judgment vacated.

Beasley, P. J., and Cooper, J., concur.

       The complaint is in three counts and names The Abbeys Association, Inc. as a defendant. However, the issues on appeal only involve plaintiffs’ claim for declaratory relief (Count 2) and defendants Home Sites and Crowell. Specifically, plaintiffs state in their brief that the claim asserted in Count 1 is moot and that they dismissed Count 3.


text:
    A93A0119.
    SCHUSTER v. CIC-UNION EUROPEENE INTERNATIONAL.
    (431 SE2d 378)
   McMurray, Presiding Judge.

Plaintiff instituted an action against defendant seeking $6,499.35 principal, plus interest and attorney fees pursuant to a note. Defendant answered, denying liability, and counterclaimed, alleging that he executed the note to purchase real estate interests in R-Ranch One, Ltd.; that he was fraudulently induced to purchase the real estate interests; that plaintiff acquired knowledge of the fraud; and that he is entitled to rescind his purchase and the note. In answers to interrogatories, defendant elaborated upon his counterclaim by stating the following: “The R-Ranch One, Ltd., sold property interests as an investment with the promise that certain amenities would be added thus adding to the real property’s value. As such, the sale was a security, as the defendant would have no participation in management of the property.”

Plaintiff moved for summary judgment, demonstrating that it purchased the note and a deed to secure debt for value from R-Ranch One, Ltd., on July 31, 1986; that defendant regularly made payments on the note; that defendant last made a payment on the note on June 15, 1987; and that defendant was indebted to plaintiff pursuant to the note in the amount of $6,499.35 principal, plus interest and attorney fees. The trial court awarded summary judgment to plaintiff in the amount of $6,499.35 principal, $4,158.69 interest, $674.93 attorney fees and costs. Defendant appeals. In his sole enumeration of error, defendant asserts a genuine issue of material fact exists as to whether the “interest purchased by [defendant] was a security. . . .” Held:

Assuming, arguendo, that defendant purchased a security interest from R-Ranch One, Ltd., see Fortier v. Ramsey, 136 Ga. App. 203 (220 SE2d 753), we nevertheless affirm the grant of summary judgment. Why? Because plaintiff was a holder in due course. OCGA § 11-3-302; see Verner v. McLarty, 213 Ga. 472, 475-476 (99 SE2d 890) (purchaser who acquires note and deed to secure debt can be holder in due course), overruled on other grounds, Ward v. Watkins, 219 Ga. 629 (135 SE2d 421). Thus, plaintiff took the note free of the fraudulent inducement defense raised by defendant. Citizens Nat. Bank of Quitman v. Brazil, 141 Ga. App. 388 (233 SE2d 482). See also Milligan v. Gilmore Meyer, Inc., 775 FSupp. 400 (S.D. Ga. 1991); Massey-Ferguson Credit Corp. v. Wiley, 655 FSupp. 655 (M.D. Ga. 1987).

Decided April 5, 1993 —

Reconsideration denied May 13, 1993

Robert S. Devins, for appellant.

Clark & Mascaro, William E. Armstrong, for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A0580.
    FIRST UNION NATIONAL BANK OF GEORGIA v. GURLEY.
    (431 SE2d 379)
   McMurray, Presiding Judge.

First Union National Bank of Georgia (“the bank”) brought this action against Larry Gurley and other guarantors (who are not parties to the appeal) of a loan to Park Place Executive Center II, Ltd. (“Park Place”). Gurley denied liability on the affirmative defenses of fraud and failure of consideration. The trial court denied the bank’s motion for directed verdict and the jury returned a verdict for Gurley. The bank moved for judgment n.o.v. and a new trial, and appeals from the denial of these motions. Held:

1. The bank contends that Gurley failed to prove his primary defense, that the bank fraudulently induced him to guarantee the loan by failing to disclose financial problems the Park Place development was having. It argues that no representations were made on behalf of the bank that could form the basis of a claim for actual fraud, and there was no confidential relationship with Gurley to create an affirmative duty of disclosure in order to find constructive fraud.

The undisputed evidence showed that Park Place Executive Center was an office and retail building constructed in 1984 and 50 percent owned by a real estate limited partnership. The bank’s predecessor in interest provided the financing and took personal guaranties from the limited and general partners. Gurley was not an original investor but his business partner Glenn Carver was one of the project’s developers and one of the three general partners. In 1987 Gurley and Carver arranged to acquire the 20 percent limited partnership interest of J. Douglas Herman through their corporation Wellington Associates, Inc. (“Wellington”) upon the bank’s releasing Herman from his personal guaranty. The bank reviewed Gurley’s personal financial data, decided that his assets were sufficiently substantial and agreed to release Herman from his guaranty when Wellington executed a guaranty in an equal amount and Gurley personally guaranteed Wellington’s debt. After Gurley agreed, Roy Tritt, the attorney for Park Place, mailed him a letter enclosing the personal and corporate guaranties and explaining that the bank would release Herman as a result of the sale to Wellington. Herman signed a bill of sale and gave it to Tritt, who delivered it to Carver on behalf of Wellington, and the bank then notified Herman that he was released from his guaranty on March 15, 1988.

At trial, Gurley did not contest the existence of his personal guaranty or the amount of the debt, but claimed that the bank fraudulently induced him into signing by not informing him of prior delinquent payments by Park Place on the loan or a lawsuit brought against Park Place and the bank by three of the limited partners. On appeal he argues that the verdict was justified by evidence showing that all of the bank’s dealings from the creation of Park Place until the time Gurley became a guarantor were handled by Tritt; that the bank agreed to release Herman only because he was a good customer they did not want to lose; that the bank collaborated with the general partners of Park Place to coordinate their defense against the lawsuit in which they were represented by Tritt; that the bank and Tritt remained silent in their dealings with Gurley and Wellington with the knowledge that these special circumstances would materially affect any investor’s decision; and that under OCGA § 23-2-53 the particular circumstances were clearly such as to create a duty on the part of the bank to disclose these material facts within its peculiar knowledge to Gurley during its solicitation of the guaranty.

Neither the statutory nor case law supports Gurley’s position, as the law is clear that a bank owes no legal duty to act as a customer’s legal or financial advisor. “Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” OCGA § 23-2-53. “A fiduciary or confidential relationship arises ‘where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agents, etc.’ OCGA § 23-2-58. . . . ‘The mere fact that one reposes trust and confidence in another does not create a confidential relationship. “In the majority of business dealings, opposite parties have trust and confidence in each other’s integrity, but there is no confidential relationship by this alone.” [Cit.]’ [Cit.]” Kienel v. Lanier, 190 Ga. App. 201, 202 (2), 203 (378 SE2d 359).

Here, as in Pruett v. Commercial Bank of Ga., 206 Ga. App. 103, 104 (424 SE2d 284), “[t]he record reveals no confidential relationship between [Gurley and the bank] which would excuse the requirement that [Gurley] exercise ordinary diligence to protect [his] own interests. [Cit.]” As further stated in American Demolition v. Hapeville Hotel &c. Partnership, 202 Ga. App. 107, 108 (1), 109 (413 SE2d 749), “[t]here is no evidence to suggest that this transaction was anything other than an arm’s length transaction between two professionals and there is no evidence that any special or confidential relationship existed to give rise to a duty to disclose.” The trial transcript shows that prior to the execution of his guaranty Gurley never spoke to Tritt or to any representative of the bank, and never asked the bank for any information nor received any, false or otherwise. Rather, he acted in conjunction with his business partner Glenn Carver, who was president of Wellington, a general partner of Park Place and a co-defendant in the lawsuit. Thus information of any adverse circumstances was fully available to him through Carver.

“While concealment of material facts may amount to fraud when the concealment is of intrinsic qualities the other party could not discover by the exercise of ordinary care, [cit.], in an arms-length business or contractual relationship there is no obligation to disclose information which is equally available to both parties. [Cits.] Under such circumstances, actionable fraud cannot be shown unless the [party alleging fraud] exercised due care to discover the fraud. [Cit.] . . . ‘ “(T)here is no legal relief afforded when one ‘blindly relied on the representations of the (other party) as to matters of which he could have informed himself.’ ” (Cits.)’ [Cit.] The entire record is devoid of the slightest evidence that [Gurley] exercised any diligence or even ordinary care in ascertaining [Park Place’s financial] status before entering into the [guaranty] agreement.” (Indention omitted.) Southern Intermodal Logistics v. Smith & Kelly Co., 190 Ga. App. 584, 585 (1), 586 (379 SE2d 612).

Through Carver, Gurley was in at least as good a position as the bank to analyze Park Place’s financial condition, and his failure to investigate the matter shows a lack of due diligence. Reeves v. Habersham Bank, 254 Ga. 615, 617 (1) (331 SE2d 589). “There being no suggestion that the relationship between [Gurley and the bank] was anything other than an ‘arms-length’ business relationship, [Gurley] was not justified in looking to the bank for advice regarding the financial viability of the project, nor was the bank under any duty to list for him the various obstacles facing the successful completion of the project. [Cits.]” Casgar v. C & S Nat. Bank, 188 Ga. App. 234, 235-236 (1) (372 SE2d 815). Accordingly, the bank was entitled to a directed verdict on the issue of fraud, and the trial court erroneously denied that motion and the motion for judgment n.o.v.

2. Gurley also raised the defense of lack of consideration due to the bank’s failure to obtain a written consent of all the general partners for the substitution, sale or transfer of Herman’s partnership interest to Wellington, which he asserts nullified the transfer and rendered the guaranties unenforceable. The bank contends that the valuable consideration was its relinquishment of Herman’s guaranty in reliance upon the guaranties signed by Gurley. Gurley insists that this was properly a jury question since there was evidence from which the jury could find that the bank relied solely on Tritt’s advice or its own business decision to cater to a good customer when it released Herman.

The evidence of record does not support this contention. The loan officer who serviced the Park Place loan testified that acting in reliance on the guaranties agreed to by Gurley and Wellington, the bank released Herman’s guaranty upon receipt of the documents signed by Gurley. Gurley himself admitted on cross-examination that he received the letter stating the bank was going to release Herman once Gurley signed the guaranties; that he understood that this would happen; and that he knew the bank was going to act in reliance on his guaranties. Thus, pretermitting the issue of whether Wellington received an interest in Park Place, the undisputed evidence establishes that there was valid consideration for the guaranties.

Under current law, the mere lack of any personal consideration flowing directly to Gurley, standing alone, constituted no legal defense to his liability on the personal guaranty. Griffin v. Georgia-Pacific Corp., 177 Ga. App. 852 (1) (341 SE2d 499). “ ‘The contract of suretyship or guaranty is one whereby a person obligates himself to pay the debt of another in consideration of a benefit flowing to the surety or in consideration of credit . . . given to his principal. . . .’ OCGA § 10-7-1. [Emphasis in opinion.] [Cit.] It is undisputed that credit was extended to the corporate principal.” Virgil v. Kapplin, 187 Ga. App. 206, 208 (3) (369 SE2d 808). See Doyal v. Thornton, 205 Ga. App. 74, 76 (1) (421 SE2d 314). “ ‘There is sufficient consideration to support an agreement to answer for the debt of another, when the creditor is thereby induced by the promisor to relinquish a valuable lien which he had acquired upon the property to secure the original debt. [Cits.] Accordingly, there remain[ed] no issue of fact as to consideration to be decided.” McGarr v. Bank of Pinehurst, 159 Ga. App. 116 (1), 117 (282 SE2d 739).

While the evidence on appeal must be construed most strongly to uphold the verdict, “mere conflicts in the [evidence] do not render the direction of a judgment erroneous when it appears that the conflicts are not material. [Cits.]” Blalock v. Central Bank of Ga., 170 Ga. App. 140 (2) (316 SE2d 474). In the case sub judice, there was no jury question as to any genuine issue of material fact: it was undisputed that Wellington was indebted to the bank and the personal guaranty signed by Gurley guaranteed the indebtedness of the corporation. The evidence upon which Gurley relied was immaterial to the legal issues controlling his liability. “ ‘A directed verdict or judgment notwithstanding the verdict should be granted where construing the evidence in favor of the respondent a verdict is demanded in favor of the moving party. (Cits.)’ [Cit.] Inasmuch as there was no evidence that the guaranty was not a complete and valid instrument which rendered [Gurley] liable for all amounts due under the [Wellington guaranty], the trial court [erred] by [not] granting j.n.o.v. in favor of [the bank].” Pitts Truck Air v. Mack Trucks, 173 Ga. App. 801, 802-803 (1) (328 SE2d 416).

Decided April 6, 1993 —

Reconsideration denied May 13, 1993

Knox & Zacks, Ted H. Clarkson, Ronald C. Melcher, for appellant.

Allgood, Childs, Mehrhof & Millions, Thomas F. Allgood, Jr., for appellee.

3. It is unnecessary to consider the remaining enumerations of error concerning the admissibility of certain evidence and jury instructions.

Judgment reversed.

Beasley, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A93A1054.
    COKER et al. v. CULTER.
    (431 SE2d 443)
   Birdsong, Presiding Judge.

Appellants Billie and Angela Coker and appellee Lyle Pace Culter were involved in an auto collision. Partial summary judgment was granted to appellee as to punitive damages. Appellants appeal on grant of punitive damages.

By affidavit, appellee admitted going 40 mph in a 35 mph zone; water was standing on the road; visibility was poor; his car hydroplaned and crossed over the centerline; two passengers in the car were drinking but appellee, who had drunk beer some time before the accident tested one hour after the accident at .03 percent grams blood-alcohol content. Drug paraphernalia was found in the back of appellee’s car, though he claimed he knew nothing about it. He admitted he may have been driving a little too fast for conditions. After the collision, appellee jumped out of the car and stomped and slammed the front end of his car while cursing; appellant, who was pregnant, screamed she was in labor. Held:

On motion for summary judgment, if there is no evidence sufficient to create a genuine issue of material fact as to any essential element of the plaintiff’s claim, that claim fails. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474). A defendant seeking summary judgment may discharge his burden by showing an absence of evidence to support the plaintiff’s case. If the movant discharges this burden, the respondent cannot rest on the pleadings, but must point to specific evidence giving rise to a triable issue. Lau’s Corp., supra at 491. See OCGA § 9-11-56 (c).

The trial court did not err in granting partial summary judgment to appellee as to punitive damages. Punitive damages may be awarded only where it is proven by “clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). “Punitive damages cannot be imposed without a finding of some form of culpable conduct. Negligence, even gross negligence, is inadequate to support a punitive damage award.” Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (3b) (365 SE2d 827).

Although there may be evidence of gross negligence in this case, there is no clear and convincing evidence that defendant’s acts arose to the level sought to be punished under OCGA § 51-12-5.1. Day v. Burnett, 199 Ga. App. 494 (405 SE2d 316); Harrison v. S & B Trucking, 179 Ga. App. 291, 292 (1) (346 SE2d 101); American Fidelity &c. Co. v. Farmer, 77 Ga. App. 166 (48 SE2d 122); and Rutland v. Dean, 60 Ga. App. 896 (5 SE2d 601) are not controlling, as they involve a lesser burden of proof to support punitive damages than is now required by OCGA § 51-12-5.1.

Appellants filed a motion for reconsideration of the order granting partial summary judgment as to punitive damages, with an affidavit of an auto expert, including a statement that appellee was driving a “muscle car” and that anyone who owns and operates a “muscle car” knows it has bad traction in wet weather. The attached police report showed “drinking, not impaired.”

The reconsideration motion was properly denied. “Each party has a duty to present his case in full at the hearing on the motion for summary judgment.” Nowell v. Fain, 174 Ga. App. 592, 593 (330 SE2d 741); see Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 606 (203 SE2d 173).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.

Decided May 13, 1993.

Whelchel, Dunlap & Gignilliat, Thomas S. Bishop, for appellants.

Chambers, Mabry, McClelland & Brooks, Daniel N. Meyer, for appellee.


author: Pope, Chief Judge.

text:
    A93A0541.
    PURVIS v. THE STATE.
    (433 SE2d 58)
   Pope, Chief Judge.

Defendant Carol Purvis, Ph.D., was employed as Superintendent of the Clarke County School District. In 1991 the authorities discovered that certain funds belonging to the school system had been diverted by two assistant superintendents, John M. Benton and Bernie L. Stills, to what amounted to a “slush fund” which was used, in part, for entertainment and other unauthorized expenditures. Dr. Purvis was the beneficiary of some of these expenditures. Accordingly, Benton, Stills and Dr. Purvis were indicted for violating the Georgia RICO Act, OCGA § 16-14-1 et seq. The indictment alleged 25 separate predicate acts as the basis for the RICO charge. Benton and Stills pled guilty and Dr. Purvis pled not guilty. He was tried and convicted, the jury expressly finding him guilty of three of the alleged predicate acts. Dr. Purvis (“defendant”) appeals.

Among the funds diverted by Benton and Stills were two checks totalling $45,000 made payable to the school district. Theft by taking as a result of the unlawful appropriation of these two checks constituted two of the predicate acts the jury found defendant guilty of committing. Defendant argues the trial court erred in denying his motion for directed verdict as to these two predicate acts because insufficient evidence was presented from which the jury could find him guilty of these two acts. We agree.

The evidence shows the two checks were diverted into the slush fund account in August 1989. No evidence was presented that the defendant knew of the diversion until after that date when, in October or November 1989, Benton and Stills admitted the diversion to defendant after a school district employee discovered the diversion and confronted Benton with the discovery. Benton testified that he and Stills wanted to admit the offense to defendant before defendant otherwise learned of it. The evidence shows defendant did not report the diversion to the school board or any law enforcement officer but allowed Benton and Stills the opportunity to replace the diverted funds.

Evidence was also presented from which the jury could conclude that defendant colluded with Benton and Stills on a scheme to return the funds by diverting other funds from the sale of school district computer equipment. Evidence was presented that ultimately, however, defendant did not approve the sale of the computer equipment. Nevertheless, Stills followed through on the plan and entered into a contract to sell the computer equipment, diverted $91,000 from that sale and used the money, in part, to repay the $45,000 diverted earlier. The diversion of the $91,000 was alleged as one of the predicate acts in the RICO indictment. The jury, however, did not find defendant guilty of the act of diverting the $91,000 from the sale of the computer.

Defendant admitted that he committed the third predicate act of which the jury found him guilty: wrongfully signing a disclosure letter attesting to the accuracy of financial records and other information supplied to an independent accounting firm for the annual audit of the school district. At the time he signed this letter, defendant knew of the diversion of . $45,000 of school district funds. The fraudulent misrepresentation in the disclosure letter is certainly evidence from which a jury could find defendant guilty of concealing evidence of a crime, a violation of OCGA § 16-10-50. However, neither the wrongful signing of the disclosure letter nor the evidence of collusion with Benton and Stills to cover up the crime after it was committed constitutes evidence that defendant was a party or aider or abettor of the diversion of funds.

“One guilty of violating [OCGA § 16-10-50] would be classified as an ‘accomplice after the fact’ at common law, and such an offender is not considered ... a ‘party to the crime’ under [OCGA § 16-2-20]. [Cits.] At common law and under modern practice, an accessory after the fact is not considered an accomplice to the underlying crime itself, but is guilty of a separate, substantive offense in the nature of an obstruction of justice.” Moore v. State, 240 Ga. 210, 211-212 (240 SE2d 68) (1977). “[Although the terminology of parties to a crime as principals in the first and second degree has been abolished, the concept, as related to criminal responsibility, remains constant. ‘Aid or abet’ as used [in OCGA § 16-2-20 (b) (3)] should be given the same meaning as in former Code § 26-501 defining a principal in the second degree as one ‘who is present, aiding and abetting the act to be done.’ ” Hannah v. State, 125 Ga. App. 596, 598 (188 SE2d 401) (1972). In essence, to be guilty as a party to a crime as an aider or abettor pursuant to OCGA § 16-2-20 (b) (3), a defendant must be an accessory before the fact. In this case, no evidence was presented that defendant was an accessory to the commission of the crime of theft by taking the $45,000 in school district funds.

Neither was evidence presented to support the theory that defendant acted as a conspirator in the commission of the crime. An accessory after the fact cannot be an accomplice in the crime. Schmid v. State, 77 Ga. App. 623 (49 SE2d 134) (1948). “There can be no conspiracies under our law between the perpetrators of a major offense and an accessory after the fact.” Id. at (4).

We note that evidence was presented that before Benton and Stills confessed to defendant about the stolen funds, defendant questioned them concerning the source of the funds which were being used for entertainment and other expenses which did not qualify for reimbursement from school district funds. Defendant was told “you don’t want to know” and defendant agreed that he should remain ignorant. Defendant also admitted at trial that in his official capacity as school district superintendent it was his responsibility to manage school district funds. Defendant’s intentional act of remaining ignorant of the source of funds which were spent in a questionable manner could arguably be considered evidence of defendant’s criminal negligence in the execution of his public duty. The State, however, did not request that the jury be instructed on criminal negligence and no such charge was given. Moreover, even if defendant was criminally negligent in intentionally remaining ignorant of the source of the funds, no evidence was presented that this negligence resulted in his knowledge of or participation in theft of the funds from the school district. Evidence was presented, for example, that defendant asked Benton to resign his position as assistant school superintendent after it was learned that he had permitted a company which conducted business with the school district to host a party in his honor. Thus, while evidence was presented that defendant knew or should have known that the source of funds was improper or illegal, no evidence was presented that before Benton and Stills confessed to theft of funds, defendant had knowledge that the source of the funds was theft as opposed to some other source such as illegal kickbacks or contributions from third parties.

Defendant admits the evidence may have been sufficient to show he was guilty of the act of theft by receiving stolen property. The evidence showed defendant was the beneficiary of much of the entertainment expenditures made from the fund and, although the evidence was conflicting, evidence was presented from which the jury could find that defendant continued to reap benefits from the slush fund after he was informed of the illegal source of that fund. Theft by receiving stolen property, however, is a separate offense from theft by taking. Sosbee v. State, 155 Ga. App. 196 (270 SE2d 367) (1980). “They are two completely different crimes, having different elements, and are, in fact, so mutually exclusive that the thief and the receiver cannot even be accomplices.” Id. at 197.

Decided April 30, 1993 —

Reconsideration denied May 18, 1993

L. Scott McLarty, Robert J. Motyka, Bruce S. Harvey, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

Having admitted he signed the false disclosure letter to the auditors, defendant could obviously be found guilty of OCGA § 16-10-20, which prohibits the making of “any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of . . . the government of any county, city, or other political subdivision of this state. . . .” The indictment, however, did not charge defendant with a separate offense for violation of OCGA § 16-10-20 but only alleged the violation as a predicate act to the single RICO count. The evidence is sufficient only to sustain the jury’s finding that defendant committed this one predicate act alleged in the indictment. To be guilty of a “pattern of racketeering activity” pursuant to OCGA § 16-14-4 (b), however, a defendant must have engaged in “at least two incidents of racketeering activity. . . .” OCGA § 16-14-3 (8). Because we conclude the evidence was insufficient to sustain a conviction for the single RICO count of which defendant was charged, we must reverse defendant’s conviction.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.

       Also indicted was Chester R. Strader, a certified public accountant who assisted Benton and Stills. With Benton and Stills, Strader pled guilty to the charge.


author: Beasley, Presiding Judge.

text:
    A93A0632.
    LEWIS v. THE STATE.
    (431 SE2d 445)
   Beasley, Presiding Judge.

Lewis appeals from judgments of conviction and sentences entered for two counts of selling cocaine, OCGA § 16-13-30 (b). He was acquitted of a third count, and his motion for new trial was denied.

On June 5, 1991, members of a joint drug task force investigating crack cocaine activity in Calhoun, Georgia, outfitted a confidential informant with a pocket micro-cassette tape recorder and instructed him to go to a specified area to purchase drugs from a man named Bennett. If the informant was unable to locate that person, he was told to purchase contraband from anyone who attempted to sell it to him. The informant drove to that location where he encountered a Mr. Wilkey who asked what he was looking for. Appellant subsequently approached and sold the informant a quantity of crack cocaine. About 25 minutes later, the informant returned to the sheriffs office with the contraband. Appellant was acquitted of charges stemming from this transaction.

On June 10, police met again with the informant, giving him $20 in county funds and instructions to attempt to purchase cocaine from appellant and Wilkey. This time the informant was equipped with a remote transmitter, which enabled police to monitor his conversations. The investigating officers remained in range of the transmitter and contemporaneously monitored the transaction. The informant returned to the same area, made contact with Wilkey and appellant and purchased crack cocaine. Again the informant returned to the sheriff s office where he surrendered the contraband.

On July 27, police placed the informant in a van with a transmitting device and instructed him to drive through the west side of Calhoun and purchase cocaine from anyone who solicited him for that purpose. They monitored the transaction from a nearby patrol car. Appellant approached the van and sold crack cocaine to the informant. This transaction was observed by officers concealed in the van.

Appellant testified in his own defense that he was visiting with his parents in Cleveland, Ohio, during the relevant dates. He introduced a cancelled envelope mailed from there on July 25, showing “B. Lewis” as sender.

1. Appellant contends that the trial court erred in admitting by testimony the contents of his custodial statement which impermissibly placed his character in evidence and denied him a fair trial.

Although the statement was provided to appellant pursuant to his pre-trial discovery motion, nothing further appears in the record with respect to it until the investigating officer was questioned as a State’s witness at trial. It was established through his testimony that upon being taken into custody, appellant executed a waiver of Miranda rights and made an oral statement to police. The officer prepared a typewritten statement from his notes of the interview, which appellant acknowledged with his signature. When the State sought to introduce the document, appellant “renewed” his objection to its admissibility, without stating specific grounds therefor. No previous objection is contained in the record, although an unreported bench conference was held at the State’s request prior to presenting evidence concerning the statement. The court sustained the objection in that it refused to allow the document to be published to the jury or admitted in evidence; however, the officer was permitted to read the statement into the record, as follows: “My name is Barry Lewis; I am twenty-eight years old, I live in Calhoun, Georgia. I am aware that R. L. Paris, W. R. Gallman, and Randy Garigan are law enforcement officers. They have advised me of my rights to remain silent and to have a lawyer present with me. Now, having these rights in mind, I do hereby make the following statement. I do not remember going with Poochy Wilkey and a white guy [informant] in a brown Olds Cutlass to get some cocaine. I do not remember selling cocaine to the same white guy driving an old white van on the Westside in Calhoun on June 27,-1991. I am not denying that I sell cocaine, I do sell it occasionally, but I can’t remember these specific occasions. I do not sell cocaine everyday. I can read and write the English language, and I have reviewed this statement before signing it. It is true and accurate. The investigators have not threatened me or promised me anything.” This testimony was received without objection.

Decided May 18, 1993.

William R. Thompson, Jr., for appellant.

T. Joseph Campbell, District Attorney, Rebecca B. Tierce, Sharon M. Fox, Assistant District Attorneys, for appellee.

Appellant’s enumeration of error is couched solely in terms of impermissible character evidence. We find no such objection asserted below. In Hunter v. State, 202 Ga. App. 195, 196 (3) (413 SE2d 526) (1991), this court refused to consider a claim of improper character evidence where that specific ground of objection was not made when the evidence was offered at trial. “Reversal of the trial court is not authorized on the basis of an evidentiary ruling that the trial court was never called upon to make.” Id. at 198. Likewise, in the absence of a specific objection below, it was waived.

2. The standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) has been satisfied.

Judgments affirmed.

McMurray, P. J., and Cooper, J., concur.

       Appellant’s statement also contained a reference to a prior arrest for selling cocaine, which was not conveyed to the jury.


author: Andrews, Judge.

text:
    A93A0141.
    MEEKS v. CASON.
    (431 SE2d 407)
   Andrews, Judge.

Meeks, plaintiff below, appeals from the judgment entered on the jury’s verdict in favor of defendant Cason in Meeks’ personal injury claim arising from an automobile accident.

Viewed in favor of the verdict, the evidence was that, on March 24, 1989, Ms. Cason, driving a 1986 Chevy van, was approaching traffic when she noticed a group of teenagers on the side of the road. It was before school started and children were walking to school. In order to watch them, she turned her head away from traffic momentarily and when she looked back, the traffic had stopped. The road was wet from a previous rain. As described by Cason, “I put on my brakes and I couldn’t stop and I hit Ms. Meeks’ car.”

Meeks was driving a 1979 Ford LTD and was stopped for traffic. Cason said she got out of the van, approached the LTD, and asked Meeks if she was hurt. Meeks said no and got out of her car to examine it. Meeks did not obtain Cason’s name or driver’s license and no report was made to the police at that time. Later, on arriving home, Meeks advised her husband of the incident and he told her their insurance required it to be reported. They went to examine their car and discovered a plastic bracket securing the battery had broken and the car would not crank. Mr. Meeks fixed that problem and had the car checked at Western Auto due to a vibration. The universal joint had to be replaced.

That afternoon, Meeks’ neck began to hurt and she was treated at the emergency room for a whiplash injury. She was x-rayed and given pain medication. The pain worsened overnight.

The next day, Ms. Meeks spotted the van in a shopping center and obtained the license number after going in a store and seeing Ca-son. The incident was then reported to the police.

On March 29, 1989, Meeks saw her doctor who changed her pain medication and prescribed a cervical collar. Later, he referred her to an orthopedic surgeon, Dr. Eddings, who referred her for physical therapy, which helped. Because she had had five relatives, including her three-year-old daughter, killed by vehicles, she became very emotional when riding in vehicles and was referred in June or July by Dr. Eddings to Dr. Eaton, a psychologist who treated her for her fears.

In June 1989, Dr. Eddings discontinued the physical therapy and Meeks was released to return to work on January 7, 1990. She then worked several jobs, including being a cook at a local restaurant and cleaning up there. Later, she also worked in the deli department of á local grocery where she fried chicken and was required to lift the fry container filled with chicken out of the vat and dump it onto a counter. She began to have pain in her neck and shoulders after work and was given a note to restrict her lifting at work. She later returned to Dr. Eddings who did an arthrogram in October 1990 and discovered “impingement syndrome and chronic subacromial bursitis.” On November 13, 1990, Meeks underwent arthroscopic surgery and a tear was found in her labrum inside her right shoulder and repaired. She did .not have additional problems after this.

1. The first enumeration is that the court “erred in charging the jury on accident when the Defendant had admitted that the collision was her fault and there was no issue of fact to be decided by the jury in that regard.”

At the close of all the evidence, Meeks made a motion for directed verdict based on Cason’s answer on cross-examination to the question “[T]his collision was your fault, wasn’t it?” Her answer was “Yes sir, I hit her.”

The argument of this enumeration, however, is addressed solely to the issue of jury charges.

“ ‘Our law requires that enumerations “shall set out separately each error relied upon” (OCGA § 5-6-40). . . .’ Murphy v. State, 195 Ga. App. 878, 880 (6) (395 SE2d 76) [(1990)]. When an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 (Murphy, supra) or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining enumerations as abandoned. (West v. Nodvin, 196 Ga. App. 825, 830 (4c) (397 SE2d 567) [(1990)].” Robinson v. State, 200 Ga. App. 515, 518 (2b) (408 SE2d 820) (1991).

To the extent the enumeration can be read as addressing objections made at the trial to the charge, we will consider it.

During the charge conference, Meeks objected to the giving of Cason’s charges numbered 4, 5, and 6. The ground stated was that, in light of Cason’s admission that the wreck was “her fault,” the charges were not applicable to the facts.

After the charge was given, the court inquired if there was “anything for the record” before the jury began deliberations, stating that “I think you’ve already entered your charges objections.” Counsel for Meeks replied, “[a]s long as the Court is aware of my . . . objections.”

While the charges are objected to as “accident” charges, they do not deal with the concept of “inevitable accident” addressed in Tolbert v. Duckworth, 262 Ga. 622, 623 (423 SE2d 229) (1992).

The two objected to charges were: “I charge you that the law of this State does not impose upon the driver of a motor vehicle the absolute duty to have her vehicle under such control that it can be brought to a stop in order to avoid injury to any person or property which may be in the path of such motor vehicle. Therefore, the mere fact that the vehicle of the defendant collided with the automobile occupied by the Plaintiff does not within itself establish that the defendant was guilty of negligence. In this regard, it is for the jury to determine from all the facts and circumstances whether the defendant was guilty of negligence.” (Request No. 4) “I charge you that all drivers of motor vehicles using the highways are held to the exercise of due care and that a leading vehicle has absolutely no legal position superior to that of one following. Accordingly, I charge you that the mere fact that a vehicle is struck by another vehicle does not establish liability on the driver of either vehicle.” (Request No. 5)

Decided April 29, 1993 —

Reconsideration denied May 20, 1993

Hackel & Hackel, Thomas M. Hackel, for appellant.

Dillard, Bower & East, Bryant H. Bower, Jr., Robert W. Lamb, Daniell S. Landers, for appellee.

Pretermitting the question of whether the objection made was adequate to preserve any error, see Cornelius v. Lawrence, 203 Ga. App. 113, 114 (2) (416 SE2d 115) (1992), the two charges were accurate statements of abstract principles of law and provide no basis for reversal. Wright v. Dilbeck, 122 Ga. App. 214, 227 (6) (176 SE2d 715) (1970); Attaway v. Morris, 110 Ga. App. 873, 874 (5) (140 SE2d 214) (1965); Hay v. Carter, 94 Ga. App. 382, 384 (94 SE2d 755) (1956).

2. Meeks also complains of the court’s giving of a charge on preexisting condition on the ground that no evidence of such a condition was introduced.

There was evidence that Meeks did suffer from a psychological condition before the accident which exacerbated her physical condition. She was also seeking compensation for the counseling required after the wreck for her fear of riding in automobiles, which, according to her psychologist, was attributable to her family history and relationships as well as the wreck.

Therefore, there was evidence supporting the charge and there was no error.

Judgment affirmed.

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

       That charge was that “ '[i]f you should find from the evidence . . . that neither plaintiff nor defendant were guilty of negligence, then any injuries or damages would be the result of an accident. The word “accident” has a specific and distinct meaning. . . . Accident is strictly defined as an occurrence which takes place in the absence of negligence and for which (no) one would be liable.’ ” Tolbert, supra at 623. That charge should no longer be given in civil cases after January 21, 1993.


text:
    A93A0234.
    BOWERS v. ECONOMATION, INC.
    (431 SE2d 420)
   McMurray, Presiding Judge.

Plaintiff Allen L. Bowers brought an action against defendant Economation, Inc. (“Economation”), an Indiana corporation, seeking damages under a strict liability theory. Jurisdiction was predicated under the Georgia Long-Arm Statute, OCGA § 9-10-91, and it was alleged that service could be perfected by serving Economation’s registered agent, Donald W. Lochman, at 8502 Brookville Road, Indianapolis, Indiana. According to the affidavit of service, a deputy sheriff of Marion County, Indiana, served Economation on September 12, 1991, by leaving a copy of the complaint with Sharon Newton, a “secretary,” at, the Brookville Road address set forth in the complaint.

Economation failed to answer the complaint and a default judgment, in the amount of $300,000 was entered against it on November 4,1991. Thereafter, Economation moved to set aside the judgment. In support of its motion, Economation submitted the affidavits of Marc Farris, Sharon Newton and Fred Hafdelin.

Mr. Farris deposed that he is the Vice-President of Finance for Pentek Corporation (“Pentek”) and that in January 1991, Economation was merged into Pentek and ceased to exist as a separate legal entity; that, on September 12, 1991, Sharon Newton was a receptionist for Pentek; and that Ms. Newton was not authorized to accept service of process for either Economation or Pentek. He also deposed that he became aware of the deputy sheriff’s attempt to serve the corporation by leaving a copy of the complaint with Ms. Newton and that, within the next day or two, he sent the complaint to GAB Business Services, Inc. (“GAB”), “in accordance with a contractual agreement under which [GAB] was to have filed an answer to the suit. . ..” Finally, Mr. Farris deposed that “defendant was unaware that defenses had not been filed until a default judgment was entered. . .

Ms. Newton deposed that on September 12, 1991, she was employed as a receptionist for Pentek; that she had never been “an officer, cashier, managing agent or agent authorized to accept service of process either for Pentek Corporation or Economation, Inc.”; that she never had supervisory or managerial responsibilities in the course of her employment.

Mr. Hafdelin deposed that he is a litigation account manager for GAB and that his office received a copy of the complaint and summons on September 16, 1991; that the summons and complaint were placed in a hard file; and that the hard file was mistakenly put in a filing cabinet without being entered in GAB’s computer and without being assigned to counsel.

The trial court granted Economation’s motion to set aside the judgment, finding that Economation was not properly served with process. When plaintiff elected to stand by the original attempt at service, the trial court dismissed his complaint for lack of service of process. Plaintiff appealed. Held:

OCGA § 9-10-94 provides: “A person subject to the jurisdiction of the courts of the state under Code Section 9-10-91 [Georgia’s Long-Arm Statute], or his executor or administrator, may be served with a summons outside the state in the same manner as service is made within the state by any person authorized to make service by the laws of the state, territory, possession, or country in which service is made or by any duly qualified attorney, solicitor, barrister, or the equivalent in such jurisdiction.” The statute makes it clear that in order to perfect service under the Long-Arm Statute outside of the state, the summons is to be served “in the same manner as service is made within the state. . . .”

Decided May 7, 1993 —

Reconsideration denied May 20, 1993

Vansant, Corriere & McClure, Alfred N. Corriere, Del Percilla, Jr., for appellant.

Watson, Spence, Lowe & Chambless, Thomas S. Chambless, Dawn G. Benson, for appellee.

Within the state, service is to be made upon a corporation incorporated or domesticated under the laws of this state by delivering a copy of the summons and complaint “to the president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof. . . .” OCGA § 9-11-4 (d) (1). If the action is against a foreign corporation doing business and having an agent within this state, service is to be made by delivering a copy of the summons and complaint “to such agent ... or to an agent designated for service of process. . . .” OCGA § 9-11-4 (d) (2).

It is not every agent who can be served with process under Georgia law. To perfect service, a copy of the complaint and summons must be delivered, to a person whose “position is such as to afford reasonable assurance that he will inform his . . . principal that such process has been served upon him.” Scott v. Atlanta Dairies Cooperative, 239 Ga. 721, 723 (2), 724 (238 SE2d 340). Thus, although it is not necessary for the person who is served to be an officer of the corporation, Ogles v. Globe Oil Co., U.S.A., 171 Ga. App. 785, 786 (320 SE2d 848), service upon a mere receptionist will not suffice. Citizens Bank of Hapeville v. Alexander-Smith Academy, 226 Ga. 871 (178 SE2d 178); Whatley’s Interiors v. Anderson, 176 Ga. App. 406 (336 SE2d 326); Adair Realty Co. v. Greenbriar-Fulton, Inc., 149 Ga. App. 669 (255 SE2d 128). It follows that service was not properly perfected upon Economation and that the trial court did not err in granting Economation’s motion to set aside the judgment.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A91A2124.
    BENNING CONSTRUCTION COMPANY et al. v. DYKES PAVING & CONSTRUCTION COMPANY, INC.
    (432 SE2d 273)
    Decided May 20, 1993.

      Kilpatrick & Cody, H. Quigg Fletcher III, Douglas F. Kaleita, for appellants.

      Thompson & Slagle, Dewitte Thompson, Jr., Jefferson B. Slagle, Richard E. Witterman, Jr., for appellee.
   Beasley, Presiding Judge.

In Benning Constr. Co. v. Dykes Paving &c. Co., 263 Ga. 16 (426 SE2d 564) (1993), the Supreme Court reversed the judgment of this court in Benning Constr. Co. v. Dykes Paving &c. Co., 204 Ga. App. 73 (418 SE2d 620) (1992). For this reason, rather than for the reason given in Division 2, the court erred in denying defendants’ motion for directed verdict as to attorney fees. The alleged error ruled on in Division 3 is moot. The motion for damages for frivolous appeal pursuant to OCGA § 5-6-6 remains denied. Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Johnson and Smith, JJ., concur.


text:
    A93A0307.
    JOHNSON v. HAMES CONTRACTING, INC.
    (431 SE2d 455)
   Birdsong, Presiding Judge.

Appellant Steve J. Johnson appeals the order of the trial court granting summary judgment to appellee Hames Contracting, Inc. Appellant brought suit, averring various personal injury and contract claims and seeking compensation for emotional injuries, against Hames for fraudulent and wrongful conduct in inducing appellant to perform hazardous jobs in an unsafe and dangerous manner. Appellant alleged, inter alia, Hames fraudulently and intentionally failed to inform him that he would be exposed to asbestos while cleaning and painting the boiler house at Georgia Power Company’s Plant Hammond facility. Appellant contends he thereafter orally contracted with Hames to paint the inside walls of the Plant Hammond boiler house, and that Hames subsequently breached the oral employment contract by firing him for raising job safety concerns. Hames moved for summary judgment contending appellant was an at-will employee and that his other claims were barred by the Georgia Workers’ Compensation Act. Held:

1. “[A]t summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474). The summary judgment rules to be applied in the disposition of this case are as stated in Lau’s Corp.

2. Appellant asserts the trial court erred in ruling that appellant’s oral contract of employment was terminable at will. Appellee Hames’ affidavits met its burden under Lau’s Corp., supra. Accordingly, appellant, “the nonmoving party [could not] rest on its pleadings, but rather [was required to] point to specific evidence giving rise to a triable issue.” Lau’s Corp., supra at 491. Hames’ affidavits attest that no written employment contract was entered. The 12 Tennessee painters, including appellant, were not hired to perform a designated painting job or to paint for a specific period of time; the painters were hourly workers. The documentation opposing appellee’s summary judgment motion at best is uncertain and to an extent self-contradictory. Painter German testified at the OSHA hearing that Hames called the painters’ union and said he needed twelve people to paint a ceiling; the job was going to last at least three weeks and possibly five weeks; subsequently, Hames’ foreman said the painters had done such a good job on the ceiling (which was finished the first week), that Hames was going to extend the job for two more weeks and let them paint the walls all the way down to the first floor (the painters were on the eighth floor at the time); German then opined that it would take four weeks to paint the walls and thus the duration of employment “would have been ... a total of five weeks.” At the OSHA hearing Hames’ foreman testified that he initially told the painters the job was for a duration of two weeks, but as Georgia Power reported it had extra money, “I told the guys . . . that they had done such a good job that they were going to [be kept] on a while longer.” In his filed deposition, apparently taken initially for discovery in a separate suit in federal court, German agreed that all the Tennessee painters “pretty much had one job” and that was “the painting . . . done inside the boiler house.” Thereafter, German testified that when Hames’ foreman subsequently authorized the painters to paint the “walls all the way down to the bottom floor,” the painters immediately started working on the walls. German also testified in his deposition that when the foreman called the Tennessee painters’ union office, he told German that he had a paint job involving the “painting of a ceiling,” and “he needed twelve men for about six weeks.” (Emphasis supplied.), To the extent that unexplained, contradictory witness testimony exists, within the meaning of Gentile v. Miller &c., Inc., 257 Ga. 583 (361 SE2d 383) and Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680), the rule therein shall apply. However, there exists an adequate explanation for any alleged discrepancy on the part of Hames’ foreman between his testimony in the OSHA hearing and his subsequent affidavit. Hames’ foreman adequately and reasonably explained in the OSHA hearing that after he initially told the painters they would be hired for two weeks, Georgia Power told him there was more money available and thereupon he informed them that they were to be hired for a while longer. A hiring for “a while longer” is a hiring for an indefinite period of time and thus there is no conflict between the hearing testimony, as explained, and the affidavit.

OCGA § 34-7-1 provides: “If a contract of employment provides that wages are payable at a stipulated period, the presumption shall arise that the hiring is for such period, provided that, if anything else in the contract indicates that the hiring was for a longer term, the mere reservation of wages for a lesser time will not control. An indefinite hiring may be terminated at will by either party.” Thus, under OCGA § 34-7-1, “an oral contract of employment for an indefinite period is terminable at will” (Guinn v. Conwood Corp., 185 Ga. App. 41, 42 (1) (363 SE2d 271)); “ ‘an employer is free to discharge an employee at will for any reason or no reason, and . . . the employer’s motives in discharging such an employee are legally immaterial’ ” (Lane v. K-Mart Corp., 190 Ga. App. 113 (1) (378 SE2d 136)). “[A] promise of employment for an indefinite term is insufficient to support a cause of action for breach of an employment contract.” Barker v. CTC Sales Corp., 199 Ga. App. 742 (1) (406 SE2d 88); accord Burton v. John Thurmond Constr. Co., 201 Ga. App. 10 (410 SE2d 137).

Appellant’s reliance on Lineberger v. Williams, 195 Ga. App. 186 (393 SE2d 23) is misplaced; that case is distinguishable as it concerned a particular contract of employment which created a jury issue whether it reasonably was for the definite duration of a commercial property restoration project. In view of the record before us, we find Barker v. CTC Sales Corp., supra, more persuasive.

The trial court did not err in its construction of the terms of the oral contract of employment, as a matter of law, as creating “an employment at will as that is defined in OCGA § 34-7-1.” See generally Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308); see also Burton, supra. Appellant’s first enumeration of error is without merit.

3. Appellant contends on appeal that the trial court’s holding that the exclusivity provision of the Workers’ Compensation Act precludes appellant’s claims violates the equal protection clause of the Georgia Constitution. But see Ga. Dept. of Human Resources v. Joseph Campbell Co., 261 Ga. 822, 823 (3) (411 SE2d 871). As this constitutional issue neither was timely raised nor ruled on before the trial court, it is not preserved for appellate review. Meders v. State, 260 Ga. 49, 54 (2b) (389 SE2d 320); Allen v. Montgomery Ward & Co., 186 Ga. App. 337 (2) (367 SE2d 120).

4. Appellant asserts “the trial court erred in ruling that injuries of a type not compensable under Georgia’s Workers’ Compensation Act are nonetheless barred by application of that Act’s exclusivity provision [OCGA § 34-9-11 (a)].”

(a) “Where applicable, the Workers’ Compensation Act provides the exclusive remedy to an employee injured ‘by accident arising out of and in the course of the employment.’ OCGA § 34-9-1 (4). Pursuant to OCGA § 34-9-281 (a), an occupational disease is considered to be a compensable, accidental injury. . . . [W]hen an employee’s injuries are compensable under the Act, he is absolutely barred from pursuing a common law tort action to recover for such injuries, even if they resulted from intentional misconduct on the part of the employer. . . . The Supreme Court’s statement in Bright v. Nimmo, 253 Ga. 378, 380 (320 SE2d 365) . . . that ‘[i]ntentional injuries warrant special consideration’ was evidently not intended to change this rule, as the holding in that case was that no common law tort action was authorized where the injury sought to be redressed was compensable under the Act.” Southwire Co. v. Benefield, 184 Ga. App. 418, 419 (361 SE2d 525). To the extent appellant seeks redress for current or future physical injury by accident due to occupational disease or otherwise (caused by ingestion of or exposure to asbestos fibers) and arising out of the scope of his employment, it is barred by the exclusivity provisions of the Workers’ Compensation Act. Likewise barred are those claims grounded on an intentional tort, which indirectly but essentially seek redress based on current or future physical injury arising from the alleged ingestion of or exposure to asbestos at the plant (compare majority and concurring opinions in Bryant v. Wal-Mart Stores, 203 Ga. App. 770 (417 SE2d 688) with National Data Corp. v. Hooper, 185 Ga. App. 866 (366 SE2d 189)); this is compatible with the rule of law that one cannot do indirectly what the law precludes from being done directly. See Kingsmill Village &c. v. Homebanc &c., 204 Ga. App. 900, 902 (2a) (420 SE2d 771). Further, appellee’s averred conduct occurring both prior and preparatory to and in facilitation of the hiring of appellant “is inextricably linked” to appellant’s subsequent hiring and presence at the work site where in the course of his employment he apparently was subjected potentially to exposure to asbestos. Compare Bryant, supra at 775 (concurring opinion).

Appellant, however, argues that certain of his claims do not seek redress for a current or future physical injury due to accident, but rather seek a non-physical redress for financial injury. See generally Cline v. Aetna Cas. &c. Co., 137 Ga. App. 76 (1) (223 SE2d 14); compare Bryant, supra with Southwire Co., supra at 419. Although claims based on certain types of financial injuries arising from intentional torts are not barred per se under the exclusivity provisions of the Workers’ Compensation Act (see generally Bright v. Nimmo, supra) when, as in this case, those claims inextricably and essentially seek redress based on the potential for current or future physical injury due to occupational disease or otherwise, such claims are barred by the exclusivity provisions of the Workers’ Compensation Act, OCGA § 34-9-11 (a). Bryant, supra.

Superb Carpet Mills v. Thomason, 183 Ga. App. 554 (359 SE2d 370), pertaining to an employee’s claim for property damage, is distinguishable.

(b) Appellant averred that appellee and Georgia Power engaged in a civil conspiracy (see generally Jim Walter Homes v. Roberts, 196 Ga. App. 618, 620-621 (2), (3) (396 SE2d 787)), but there does not exist a genuine issue of material fact as to the issue of conspiracy. The trial court did not err in granting summary judgment as to the conspiracy claims. OCGA § 9-11-56 (c); Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 424 (373 SE2d 515).

(c) Appellant averred certain claims of intentional infliction of emotional distress by appellee and made certain contentions in support thereof in a response to interrogatories. Generally, a response to interrogatories can be submitted in opposition to a movant’s affidavit in support of summary judgment. OCGA § 9-11-56 (e). However, appellant’s verification of his response to the first interrogatories of Georgia Power, in addition to swearing that the information supplied in his response to the interrogatories is true and correct to the best of his knowledge pertinently provided that “the word usage and sentence structure [in said response to interrogatories] may be that of the attorney assisting in the preparation of the response to interrogatories and does not necessarily purport to be the precise language of the executing party.” The Civil Practice Act requires “a party to answer personally his opponent’s interrogatories under oath,” and counsel cannot answer them for the party. Gregory v. King Plumbing, 127 Ga. App. 512 (1a) (194 SE2d 271). We find that the language of disavowal of authorship contained in the verification rendered the statements in the response inadmissible under OCGA § 9-11-56 (e).

Additionally we conclude claims of intentional infliction of emotional distress, under the attendant circumstances, have been barred. (See Division (4a) above.) Even when “ ‘an injury is not compensable under the act does not necessarily mean it is not within the purview of the act’ ” for purposes of the exclusivity provisions of the act. See generally Bryant, supra at 772 and concurring opinion; cf. Ervin v. Great Dane Trailers, 195 Ga. App. 317 (393 SE2d 467).

Appellant’s various contentions in support of his three enumerations of error are without merit.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.

Decided May 20, 1993.

Hine, Carroll & Niedrach, Paul T. Carroll III, Bret J. Pangborn, for appellant.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert M. Brinson, Troutman, Sanders, Lockerman & Ashmore, Mark L. Booz, Robert L. Pennington, Carter & Ansley, David M. Atkinson, Barry A. Karp, for appellee.


author: Smith, Judge.

text:
    A93A0321.
    CLANTON v. THE STATE.
    (431 SE2d 453)
   Smith, Judge.

Gregory Scott Clanton was convicted of six counts of burglary. He appeals from the denial of his amended motion for new trial.

1. Appellant attacks the sufficiency of the evidence. Specifically, he contends that the State did not present corroborating evidence for the testimony of an accomplice and that the State based its case wholly on circumstantial evidence but did not exclude a reasonable hypothesis of the case consistent with innocence.

At trial, managers from six businesses located in a Gwinnett County office park testified that on the morning of June 16, 1991, they found evidence of forced entry into their business premises. Several of the witnesses discovered pry marks on the exterior doors. Each witness listed the items missing from his premises, including a compact disk player and disks, a Trust Company Bank money bag, and cash. A few days later, appellant’s wife was arrested after she pawned some compact disks and a compact disk player whose serial number matched that of the stolen compact disk player. Appellant and his brother, Russell Clanton, were arrested after appellant’s wife implicated them. A search of appellant’s residence yielded a screwdriver, tire tool, and a Trust Company Bank money bag. The witness whose bank bag had been stolen identified the bag taken from appellant’s house as his, identifying it by a tear in the fabric.

Russell Clanton, who previously had pleaded guilty to burglary, testified that he and appellant were together on the night of June 15, 1991 and that they burglarized the businesses in question, using a tire tool or large screwdriver to pry open the doors. He testified that they split the cash they found and that appellant took the compact disk player and disks. Appellant testified in his defense and stated he spent the night of June 15 at his father’s home. He denied having been with his brother when the burglaries were committed and explained that the tools found in his home were tools he intended to use in his new job as an auto mechanic. He testified further that the money bag was found in a screened porch where neighborhood children sometimes played and that one of them could have left the bag on the porch.

(a) “In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. . . . The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. [Cit.] ‘However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. (Cit.) Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. (Cit.)’ [Cit.]” Castell v. State, 250 Ga. 776, 780 (1) (c) (301 SE2d 234) (1983). The corroborating evidence may be circumstantial. Harris v. State, 165 Ga. App. 186 (299 SE2d 393) (1983). The sufficiency of the corroborating evidence is a matter for determination by the jury. Id. at 187.

In this case, the State proffered evidence that one or more items identified as having been stolen from the burglarized businesses were found in appellant’s residence. Moreover, the search of his home also yielded tools that could have been used to pry open the doors of the burglarized premises. This evidence was sufficient to corroborate Russell Clanton’s testimony that he and appellant committed the burglaries by prying open the doors. Jester v. State, 151 Ga. App. 277 (259 SE2d 680) (1979); see Harris, supra at 187.

(b) Contrary to appellant’s contention, the State did not present a case based solely on circumstantial evidence, for the eyewitness testimony of Russell Clanton constituted direct evidence of appellant’s guilt, not circumstantial evidence. Brown v. State, 137 Ga. App. 331 (1) (223 SE2d 753) (1976). Given this direct testimony of guilt, properly corroborated by other evidence, the rule requiring exclusion of every other reasonable hypothesis does not apply. See Williams v. State, 204 Ga. 837, 841-843 (1) (51 SE2d 825) (1949). The evidence as a whole was sufficient to enable any rational trier of fact to find appellant guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Harris, supra.

2. In his other enumeration, appellant contends the court’s jury instruction regarding the testimony of an accomplice was erroneous. Pursuant to OCGA § 5-6-41 (f), an amended trial transcript was issued to correct what is obviously a typographical error in the original transcript by changing the word “police” in the original transcript to “accomplice” in the amended version. As corrected, the instruction gives an accurate statement of the applicable law. We find no error. See New v. State, 171 Ga. App. 392, 393 (6) (319 SE2d 542) (1984); see also Moulder v. State, 207 Ga. App. 335, 336 (2) (427 SE2d 793) (1993).

Decided May 20, 1993.

Brown & Chambers, Carla E. Brown, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.