text:
    A00A1763.
    HAMMETT v. THE STATE.
    (539 SE2d 193)
   Miller, Judge.

Phillip Hammett was tried before a jury and, notwithstanding his acquittal on related charges, was found guilty of theft by taking a Snapper riding lawnmower, the property of Jerrideen Arrington, with a value greater than $500. In a custodial statement, Hammett admitted taking the mower one night from the Arrington residence, cranking and riding it down the road and hiding it in some bushes, and the next day trading it for $300 worth of crack cocaine. In five enumerations, Hammett challenges the admission of his custodial statement, the testimony of unlisted witnesses, and the admission of “abundant hearsay.” Finding no harmful error, we affirm.

1. Hammett first contends the trial court erred in admitting his custodial statement into evidence because it was impermissibly obtained through the hope of benefit.

Hammett acknowledged he had signed a waiver of rights form that cautioned him of his rights and recited that he had “not been promised anything [nor] forced in any way to answer questions or make any statements.” He nevertheless testified at the JacksonDenno hearing that Lt. Nixon of the Troup County Sheriff’s Office told him that if he would just come clean and let the officers know where the lawnmower was, they would just go and get it, return it to the owner, and “there wouldn’t be nothing said about it.” Specifically, Hammett claimed he was informed that the police “wouldn’t press charges if [Hammett] told them where the lawnmower was.”

In opposition, Lt. Nixon and Lt. Grizzard each testified that no threats, promises, or rewards were made to Hammett to induce him to sign the waiver and speak with investigators. Lt. Nixon denied telling Hammett that he could just take the mower back and no charges would be filed. Nor did the officer tell Hammett his probation would be terminated. Rather, Lt. Nixon told Hammett that the officers would speak with the district attorney but they could not promise Hammett anything.

The trial court found the officers “far more credible on the issues involved” and concluded that Hammett knowingly waived his rights such that his custodial statement was voluntary and admissible. The burden is on the prosecution to show the voluntariness of a custodial statement by a preponderance of the evidence. Factual and credibility determinations of this sort made after a Jackson-Denno voluntariness hearing must be accepted by appellate courts unless such determinations are clearly erroneous. Since the trial court’s determination here is supported by evidence (even though contradicted), it is not clearly erroneous and is therefore affirmed.

2. Over defendant’s objection, the trial court permitted the State to supplement its witness list to add Eric Reisinger from LaGrange Farmers Supply to testify to the value of Snapper riding lawnmowers. As justification for calling someone not on the original witness list, the State’s Attorney stated in her place that the 72-year-old victim, Arrington, “has since died,” and so the State needed to put up some other evidence of value. In allowing this witness, the trial court expressly granted the defense additional time, both to interview the witness before he testified and to call additional defense witnesses, if requested.

At trial, Reisinger, the owner of LaGrange Farmers Supply store, testified he had six years experience selling Snapper riding lawnmowers and was familiar with the prices charged and the values of various models of Snapper lawnmowers. In his experience, a 14 horsepower Snapper riding lawnmower retailed in 1998 for $2,199 plus sales tax. The same model three or four years old, in operating condition, would have a value of “seven hundred to a thousand or twelve hundred dollars!, depending] on what the market will bear and the condition of the unit. . . .”

On appeal, Hammett objects that he had only an hour’s notice that the State would call a “‘Snapper’ expert” regarding value. Although a list of witnesses (not including Reisinger) is included in the record, we find no filing whereby Hammett gave written notice that he elected to have the discovery provisions of OCGA § 17-16-1 et seq. apply to his case. Consequently, OCGA § 17-16-3 does not apply of its own force to oblige the State to furnish a list of witnesses on its own initiative. Nor is there any written demand for a list of witnesses. In order to invoke the rights protected by Art. I, Sec. I, Par. XIV of the 1983 Georgia Constitution, there must first be a timely, written demand. As the record here contains none, the trial court did not err in permitting the unlisted witness to testify over objection.

3. Hammett reserved his exceptions to the charge and enumerates the instruction as to Count 1 that the State must prove, “in addition to the theft by taking, that the property taken had a value of greater than five hundred dollars.” “The way Defendant reads O.C.G.A. § 16-8-2, value is not an element of the offense [but] is only mentioned under the ‘punishment’ section. . . .”

Here, the indictment alleged that the Snapper riding lawnmower had a value greater than $500.

No averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance. If evidence can be offered in support of the allegation, the allegation cannot be rejected as surplusage.

Defendant is correct that “value” as such is not an element of the Code section proscribing theft by taking. Nevertheless, the evidence of theft must show the property taken had some value or a conviction cannot be sustained. Generally, OCGA § 16-8-12 punishes all thefts as misdemeanors unless certain aggravating circumstances aré shown. One such aggravating circumstance is that the stolen property “exceeded $500.00 in value.” Consequently, the value of the property can be a relevant issue in any theft case in the same manner as a substantive element. The trial court did not err in charging the jury that, in order to convict, they must first find the value of the stolen lawnmower to exceed $500, as alleged in the indictment.

4. Next Hammett objects to Reisinger’s valuation testimony on the ground that this witness was never tendered as an expert. The record does not support this contention.

Tender may be formal in oral announcement before the trial judge or before the jury. Tender may be implied after the foundation for qualification has been laid and counsel has asked if the examination of the witness may proceed and is instructed by the trial court to proceed. If, after qualifying the witness as an expert but without formal tender, counsel proceeds to ask for expert opinion evidence, . . . the trial court has tacitly or impliedly accepted the witness as an expert.

After the State’s Attorney laid a foundation for Reisinger to testify as an expert based upon his experience, she stopped her examination and asked defense counsel whether he had any questions. The trial court interposed and permitted the State to proceed, whereupon the State elicited Reisinger’s opinion that á used lawnmower of similar make and model as Arrington’s would be valued at between $700 and $1,200. At the conclusion of direct examination, the defense proceeded with cross-examination without further challenging Reisinger’s qualifications or otherwise objecting to the absence of a formal tender of the witness as an expert.

In our view, the trial court tacitly but necessarily accepted Reisinger as an expert without formal tender by directing the State to proceed after the State’s Attorney made the overt act of soliciting voir dire by the defense once she established a foundation. Consequently, the fourth enumeration is without merit.

Decided September 11, 2000

Reconsideration dismissed October 6, 2000.

William L. Jones, for appellant.

Peter J. Skandalakis, District Attorney, Lynda S. Engel, Assistant District Attorney, for appellee.

5. Under the so-called “necessity” exception, the trial court allowed the hearsay statement of the victim that she valued the Snapper lawnmower at “twenty-one hundred dollars . . .” to be related by the investigating officer. This evidentiary ruling is enumerated as error. Hammett contends the trial court erred in using hearsay to establish a foundation for necessity, by permitting the State’s Attorney to state in her place that the victim was deceased. He also argues that there are no indicia of reliability.

Pretermitting whether the State’s showing is inadequate under the test for the “necessity” exception enunciated in Chapel v. State, we conclude any error in admitting the hearsay statement of the victim that she placed a $2,100 value on the Snapper riding lawnmower is clearly harmless. This single item of proof is, in our view, entirely cumulative of Reisinger’s competent testimony that a 1998 Snapper riding lawnmower would retail for $2,199 and that an operable used mower would be valued at $700. The admission of competent evidence on this point renders the erroneous admission of hearsay harmless.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       The attention of appellate counsel is drawn to Court of Appeals Rule 27 (a) (1) (preservation of error; citations to the record by volume and page number) and (a) (3) (concise statement of the applicable standard of review). Robinson v. State, 210 Ga. App. 278, 279 (2) (435 SE2d 718) (1993).

       “To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” OCGA § 24-3-50. But “[t]he fact that a confession has been made under a spiritual exhortation, a promise of secrecy, or a promise of collateral benefit shall not exclude it.” OCGA § 24-3-51.

        Wilson v. State, 211 Ga. App. 457 (1) (439 SE2d 685) (1993).

        High v. State, 233 Ga. 153, 154 (1) (210 SE2d 673) (1974).

        Tucker v. State, 231 Ga. App. 210, 213 (1) (a) (498 SE2d 774) (1998).

       See, e.g., Miller v. State, 235 Ga. App. 724, 725 (510 SE2d 560) (1998) (absent written notice required by OCGA § 17-16-2 (a), provisions of OCGA § 17-16-4 (a) do not apply). Accord Wright v. State, 226 Ga. App. 848, 850 (4) (487 SE2d 405) (1997).

        Sutton v. State, 237 Ga. 423, 424 (1) (228 SE2d 820) (1976); Page v. State, 237 Ga. 20 (1) (227 SE2d 8) (1976) (before the constitutional provision becomes operative, defendant must make a demand before arraignment on the district attorney). Accord Prather v. State, 223 Ga. 721, 722 (1) (157 SE2d 734) (1967) (absent such demand nothing is required).

        Jackson v. State, 235 Ga. 857, 858 (1) (221 SE2d 605) (1976).

       The general rule in Georgia is that criminal defendants are not required to except to the jury charge in order to preserve error for appeal under what is now OCGA § 5-5-24 (a). If, however, the trial court makes direct inquiry about exceptions to the charge, defense counsel must state his exceptions or reserve the right to except on motion for new trial or on appeal. Or counsel may state any immediate objections while reserving the right to raise additional exceptions on motion for new trial or on appeal. Lewis v. State, 215 Ga. App. 161, 164 (4) (450 SE2d 448) (1994). Accord Paradise v. State, 212 Ga. App. 166, 170 (4) (a) (441 SE2d 497) (1994). But in neither instance is the consent of the presiding judge necessary to reserve exceptions.

       (Punctuation omitted.) McBride v. State, 199 Ga. App. 527, 528-529 (1) (405 SE2d 345) (1991), citing Henderson v. State, 113 Ga. 1148, 1149 (39 SE 446) (1901).

       OCGA § 16-8-2; Bryan v. State, 148 Ga. App. 428, 429 (2) (251 SE2d 338) (1978).

       Id.

       OCGA § 16-8-12 (a) (1).

        Bryan v. State, supra, 148 Ga. App. at 429 (2).

       (Citation and footnotes omitted.) In the Interest of C. W. D., 232 Ga. App. 200, 207 (3) (b) (501 SE2d 232) (1998).

       “Hearsay evidence is admitted only in specified cases from necessity.” OCGA § 24-3-1 (b).

       270 Ga. 151, 155 (4) (510 SE2d 802) (1998).

        Scott v. State, 243 Ga. App. 383, 386 (2) (532 SE2d 141) (2000), citing Assad v. State, 195 Ga. App. 692, 693 (2) (394 SE2d 617) (1990).


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A99A2489.
    HADLOCK et al. v. ANDERSON.
    (540 SE2d 282)
   Johnson, Chief Judge.

Matt Anderson sued Kent Hadlock based on fraud in the sale of a log home package. In March 1998, Anderson was awarded judgment against Hadlock in the amount of $22,969. When Anderson was unable to collect the judgment, he filed a complaint against Kent Hadlock and his wife, Janice Hadlock, alleging Kent Hadlock transferred several parcels of real estate to his wife for the purpose of defrauding his creditors. Anderson sought to have the deeds can-celled and also requested general damages and attorney fees. A jury returned a verdict in favor of Anderson. The trial court cancelled the deeds and entered judgment against the Hadlocks for attorney fees and litigation expenses. The Hadlocks appeal from the judgment.

1. The Hadlocks allege they were entitled to a directed verdict on the issue of whether the deeds were fraudulently made, arguing that Anderson failed to present evidence as to each of the elements necessary to prove a fraudulent conveyance. We disagree.

OCGA § 18-2-22 makes null and void:

(2) Every conveyance of real or personal estate . . . made with intention to delay or defraud creditors, where such intention is known to the taking party; a bona fide transaction on a valuable consideration, where the taking party is without notice or ground for reasonable suspicion of said intent of the debtor, shall be valid; and (3) Every voluntary deed or conveyance, not for a valuable consideration, made by a debtor who is insolvent at the time of the conveyance.

According to the Hadlocks, the conveyances could not have been declared void based on subsection (2), because there was no evidence that Kent Hadlock intended to defraud his creditors or that Janice Hadlock knew he intended to defraud his creditors. They argue further that subsection (2) could not render the conveyances void because there was evidence that the conveyances were based on a valuable consideration, and that Janice Hadlock was without notice or grounds to suspect her husband had any fraudulent intent. The Hadlocks also contend subsection (3) could not have been the basis for declaring the conveyances void because there was consideration, and there was no evidence that Kent Hadlock was insolvent at the time of the transfers.

At trial, the parties presented evidence that about 50 judgments had been rendered against Kent Hadlock or his business and, at the time this case was tried, some of the judgments were still unsatisfied. Among those were judgments entered against Kent Hadlock in January and February 1996. In February 1996, Kent Hadlock transferred five parcels of real property to his wife, including their residence. In September 1997, he conveyed two other parcels to a third party, who then transferred those properties to Janice Hadlock in July 1998. Kent Hadlock admitted that he transferred some of the properties after he met Anderson and “subsequent to [Anderson’s] lawsuit.”

Just before Kent Hadlock made the transfers in 1996, he was advised by attorneys to file bankruptcy. Kent Hadlock admitted being unable to pay Anderson’s judgment because of garnishments and “some financial problems.” He also testified that he “believe [s] in working out of these situations and repaying people,” that he paid some of the judgments off in installments, and that he was still making payments on some of them.

Janice Hadlock paid either no money or “like $10” for the properties. Both of the Hadlocks testified that their 22-year marriage was in trouble and Kent Hadlock transferred the properties to his wife in order to “salvage the marriage” and to give her some independence and security. Janice Hadlock testified that she knew nothing about her husband’s business, that their financial situation was “fine” at the time of the transfers, that she knew of no financial problems, and that she had no reason to believe her husband made the transfers to defraud his creditors.

The evidence raised questions of fact for the jury and authorized the jury to find that the conveyances were void under either OCGA § 18-2-22 (2) or (3). As noted in Merrill v. Beckwith, insolvency and intent are questions for the jury. Similarly, the question of a grantee’s knowledge of fraudulent intent is for the jury, and such intent may be established by proof of circumstances sufficient to put the grantee on inquiry. Relevant considerations of intent include whether there is a close family relationship and whether the grantor remains in possession of the property after the conveyance. In fact, when a transaction between spouses is attacked for fraud by a creditor, the husband and wife bear the burden of showing that the transaction was fair. Finally, inadequacy of price, taken in connection with other circumstances of a suspicious nature, raises a vehement presumption of fraud. Under the evidence presented, the trial court did not err in denying the motion for directed verdict.

We note that within this enumeration challenging the sufficiency of the evidence to submit the case to the jury, the Hadlocks argue that their motion for directed verdict should have been granted because Anderson was not yet a creditor when the transfers were made; therefore, OCGA § 18-2-22 does not apply. Assuming this argument is properly raised within this enumeration, and further assuming it was properly raised at trial in the Hadlocks’ motion for directed verdict based on general sufficiency grounds, it is without merit.

OCGA § 18-2-22 makes void certain acts committed “by debtors . . . against creditors and others.” (Emphasis supplied.) The inclusion of “and others” indicates that the statute applies in other than debtor/creditor situations. In fact, we have held that the word “others” as used in the statute includes “plaintiffs with claims against debtors ‘liable as tortfeasors, or otherwise . . . for an unascertained damage to person or property, so far as fraudulent conveyances are concerned.’ ” It was not necessary for Kent Hadlock to be indebted to Anderson at the time of the transfers for the statute to apply.

We have also held that the statute may be invoked where a person makes a conveyance with actual intent to defraud a future creditor or to defeat a debt which, though contemplated, is not yet in actual existence. Here, there was evidence from which a jury could find that Kent Hadlock made the transfers intending to defraud future creditors or to defeat contemplated debts. A directed verdict was not authorized..

2. The Hadlocks contend that the trial court erred in allowing the jury to award attorney fees when Anderson did not present sufficient evidence to guide the jury in determining the amount of damages to be awarded. This argument was waived.

At trial, at the end of Anderson’s case, Anderson’s attorney announced to the court that he would state in his place the amount of attorney fees being claimed. Counsel for the Hadlocks interjected that such testimony “may be premature,” and asked the trial court if it wished to bifurcate the case. The court declined to do so. Anderson’s attorney then stated that he has been practicing law for 22 years, has tried cases in that court, and has experience in handling these types of cases. He added that he agreed to represent Anderson at a rate of $140 per hour, and that as of that morning, he had earned $5,000. The following then transpired:

[Court to defense counsel]: Do you have any questions of counsel about his time and attorney fees? Any questions? You’re entitled to ask him if you wish.
[Defense counsel]: Do you have schedules supporting those?
[Plaintiff’s counsel]: Yes.

Decided October 6, 2000.

Kent C. Hadlock, pro se.

Janice Hadlock, pro se.

Tisinger, Tisinger, Vance & Greer, Charles D. Mecklin, Jr., for appellee.

[Defense counsel]: I’ll take counsel’s word for it. I don’t have any questions as to his time.

The Hadlocks’ attorney declined to cross-examine Anderson’s attorney regarding the fee claim.

Issues presented for the first time on appeal furnish nothing for this Court to review, for this is a court for correction of errors committed by the trial court where proper exception is taken. A party cannot abandon an issue in the trial court and on appeal raise issues neither raised nor ruled upon by the trial court. This enumeration presents no grounds for reversal.

3. The Hadlocks contend that the trial court erred “in failing to inquire into and correct the jury’s obvious confusion” regarding one of the deeds, as shown by the jury’s answer to one of the interrogatories in its verdict form. The Hadlocks complain that the jury refers in the verdict form to one of the parcels of property as “Sec. 8” rather than “Sec. 5.” According to the Hadlocks, the jury’s error does not demand that the verdict be reversed, but it shows the jury’s confusion or “just plain sloppiness,” and that the court should have inquired into and corrected the problem. However, the Hadlocks did not object to the form of the verdict when it was returned by the jury and did not request that the trial court make any such inquiry or correction.

If the form of the verdict was improper, irregular, or incomplete, it was incumbent on the Hadlocks to object to it in a timely manner. In light of their failure to do so, any alleged deficiency has been waived.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       This Court initially transferred the appeal to the Supreme Court of Georgia, as the case involves the review of cancellation of deeds. The Supreme Court returned the case to us, finding that any equitable issues in the case involving the cancellation of deeds appeared to be ancillary to the legal issue of whether the Hadlocks fraudulently conveyed property.

       See Merrill v. Beckwith, 263 Ga. 779, 781 (1) (439 SE2d 488) (1994).

       Id.

       Id.; Stokes v. McRae, 247 Ga. 658, 659 (2) (278 SE2d 393) (1981).

       See Merrill, supra.

       OCGA § 19-3-10.

        Jefferson Ins. Co. v. Dunn, 224 Ga. App. 732, 740 (5) (b) (482 SE2d 383) (1997).

       See id. at 741 (5) (b).

        Rolleston v. Cherry, 237 Ga. App. 733, 735 (1) (a) (521 SE2d 1) (1999).

       Id.

        Roach v. Roach, 212 Ga. 40, 44 (2) (90 SE2d 423) (1955).

        Cagle v. Davis, 236 Ga. App. 657, 662 (4) (b) (513 SE2d 16) (1999).

       Id.

        Perryman v. Rosenbaum, 205 Ga. App. 784, 787 (3) (423 SE2d 673) (1992).

       Id.


text:
    A00A0887.
    FELKER v. CHIPLEY et al.
    (540 SE2d 285)
   Johnson, Chief Judge.

Fort Felker, Jr., Robert Chipley, and William Chipley were partners who owned a tract of commercial real estate in Dalton. Felker owned 80 percent of the property and was the managing partner, while the Chipleys owned 20 percent.

The Chipleys sued Felker, claiming that he had converted partnership money to his own use. After the lawsuit was filed, William Chipley died, and the personal representative of his estate was substituted as a party to the action. The lawsuit proceeded to a jury trial.

At trial, Robert Chipley and the representative of William Chipley’s estate (hereinafter “the Chipleys”) presented evidence that from 1991 to 1998 the partnership incurred expenses, in the form of various payments made to Felker and his acquaintances, which it had not previously incurred. The Chipleys also introduced evidence that from 1994 to 1995, Felker used partnership money for his personal investments, which returned 16.37 percent.

Through the testimony of an accountant, the Chipleys used that percentage to calculate their claimed damages for all the money converted. The accountant applied 16.37 percent as the return on the money converted each year from 1991 until 1999, calculating that the converted money would thus be worth $342,342. He figured that the Chipleys’ 20 percent interest of that amount was $68,468, and then subtracted $21,782 that Felker had already repaid to the Chipleys. Based on the 16.37 percent return rate, the accountant concluded that the Chipleys were entitled to $46,686.

The jury returned a verdict awarding the Chipleys $46,686 as actual damages, $29,605 in attorney fees, and $50,000 in punitive damages. The court entered judgment on the verdict, ordering Felker to pay the amounts awarded by the jury plus 12 percent interest on the total amount. Felker appeals from the judgment. He does not challenge the finding of liability, but challenges the actual damages awarded based on the 16.37 percent investment return from 1994 and 1995. We agree with Felker that the actual damages were improperly calculated and therefore reverse the award of actual damages and remand the case with direction.

1. In an action for conversion, the plaintiff may elect a verdict for the return of the property, payment of the property value, or money damages. Where the plaintiff chooses a money verdict, he may recover either the value of the property on the date of conversion, plus interest from that date, or he may recover the value of the property on the date of conversion, plus a reasonable rate of hire from that date if the property is of a character that hire may be recovered.

In a case such as the instant one, where the property converted is money, the plaintiff must, of course, seek a money verdict. And while money can earn interest, it is not personalty of a character for which hire may be recovered. Thus, a plaintiff suing for the conversion of money may recover the amount of money converted, plus interest from the date of conversion.

In this case, the Chipleys are entitled to recover their share of each amount of partnership money that was converted, plus the legal rate of seven percent interest on those amounts from their respective dates of conversion. Contrary to the findings of the jury and the trial court, the Chipleys are not entitled to a return of 16.37 percent on all of the money converted between 1991 and 1999.

Under the theory of unjust enrichment, the Chipleys are entitled to recover that 16.37 percent return on the converted money that was actually invested in 1994 and 1995 and provided Felker with such a return. Unjust enrichment is an equitable concept that applies when a party has been conferred a benefit which ought to be returned. The measure of damages under this concept is based upon the benefit conferred upon the unjustly enriched party.

But even though the Chipleys are entitled to the 16.37 percent return on the partnership money improperly invested in 1994 and 1995, it was error for the court to allow the jury to apply that percentage to the money converted in other years because there is no evidence that Felker made such a return in those years. In fact, the accountant presented by the Chipleys expressly testified that he did not know if Felker even invested, let alone received a 16.37 percent return on, the money converted between 1991 and 1993, and from 1996 to 1999. In calculating the Chipleys’ damages for those years, he simply used the 16.37 percent return because the Chipleys’ attorney had asked him to use it.

Because the award of actual damages based on the return rate of 16.37 percent for all years that money was converted is not supported by the evidence, that award is hereby reversed. Since Felker does not challenge the verdict finding him liable for the specific amounts converted each year, all that remains is to calculate the interest on those converted amounts. This calculation need not be resubmitted to a jury, but may be done by the court.

Accordingly, the case is remanded to the trial court with direction that it calculate the actual damages by using the legal rate of seven percent interest for the converted money which was not proven to have been invested and by applying the 16.37 percent return only to the converted money that was invested and generated such a return for Felker.

2. Felker claims that the attorney fees and punitive damages awards should be reversed because they are inextricably intertwined with the improperly calculated actual damages. He has not supported his argument with any legal authority, and we find it to be unpersuasive.

A conversion is an intentional tort and will support an award of attorney fees and an award of punitive damages. Here, the Chipleys presented evidence of Felker’s bad faith and wilful misconduct in converting the partnership money to his own use, which supports the awards of attorney fees and punitive damages. Felker has made no attempt to show that there was not such evidence, but relies on the mere assertion that the awards are intertwined with the actual damages award. Such an assertion is not enough to prove error by the record requiring reversal of the awards of attorney fees or punitive damages.

3. Based on our holding in Division 1, we need not address Felker’s arguments that the court erred in charging the jury on interest and in awarding post-judgment interest on interest.

Judgment reversed and case remanded with direction.

Smith, P. J., and Phipps, J., concur.

Decided October 6, 2000.

Little, Adams, Bates & Kelehear, Robert B. Adams, for appellant.

Coppedge & Leman, Warren N. Coppedge, Jr., for appellees.

        Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 262 (1) (356 SE2d 877) (1987); OCGA § 44-12-151.

        Homac, Inc. v. Fort Wayne Mtg. Co., 577 FSupp. 1065, 1072 (N.D. Ga. 1983); Douglas Motor Co. v. Watson, 68 Ga. App. 335, 336-337 (22 SE2d 766) (1942).

       Compare Gen. Finance Corp. &c. v. Henderson, 160 Ga. App. 242 (286 SE2d 454) (1981) (damages for rental value of converted automobile recoverable).

        Grant v. Newsome, 201 Ga. App. 710-711 (1) (411 SE2d 796) (1991).

       OCGA § 7-4-2 (a) (1) (A).

        St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137 (1) (508 SE2d 646) (1998).

        Zampatti v. Tradebank Intl. Franchising Corp., 235 Ga. App. 333, 340 (5) (508 SE2d 750) (1998).

       See generally Fla. Intl. Indem. Co. v. Osgood, 233 Ga. App. 111, 116-117 (4) (503 SE2d 371) (1998).

        Yoh v. Daniel, 230 Ga. App. 640, 642 (2) (497 SE2d 392) (1998) (physical precedent only).

        Grant v. Newsome, supra.

       See OCGA § 13-6-11.

         OCGA § 51-12-5.1 (b).

       See White v. Arthur Enterprises, 219 Ga. App. 124, 125 (2) (464 SE2d 225) (1995).

       See Getz Exterminators v. Towe, 193 Ga. App. 268, 273 (4) (387 SE2d 338) (1989).


author: Miller, Judge.

text:
    A00A0966.
    KNIGHT v. THE STATE.
    (540 SE2d 254)
   Miller, Judge.

Henry Allen Knight was charged with two counts of theft by taking, in that he “did unlawfully take 192 yards of Garnet Colored Slam Dunk Carpet, 200 yards of [half-inch] Rebound Pad,” and other property of Dalton Carpet with a total value greater than $500 and in that he further “did unlawfully take one (1) GT Knee Kicker, one (1) Grundlach Tile cutter,” and various other tools valued in excess of $500, the property of Drew Umholtz. Viewed in the light most favorable to the jury’s verdicts, the evidence revealed the following:

Umholtz was a carpet and vinyl flooring subcontractor for various projects with Dalton Carpet. As of Jume 1998, Umholtz had worked ten or more such carpet jobs with defendant Knight, another installer for Dalton. On June 22, 1998, having completed one job, Umholtz and Knight drove to the Dalton Carpet shop and loaded carpet, padding, and plank wood flooring into Knight’s van. Also in Knight’s van were several tools that Umholtz would sometimes loan to Knight to complete a job if the two separated. Knight was supposed to stay overnight with an uncle in Atlanta and then drive straight to the job site, where he would meet Umholtz at 9:00 a.m. The next morning, Umholtz arrived at the site on time but did not see Knight. After waiting two hours, Umholtz left Knight a note, instructing him to get the house stripped and padded so they could install the carpet the next day. But Umholtz never saw Knight that day or the next, when he installed replacement carpet himself. His tools have never been recovered.

Similarly, Dalton Carpet never received any accounting or reimbursement for the $1,375 worth of materials loaded into Knight’s van. Knight did not have permission to pick up materials and then fail to apply them to the specified job. After three or four days, the president of Dalton Carpet swore out a warrant.

In three related enumerations of error, Knight contends he cannot, as a matter of law, be guilty of theft by unlawful taking as alleged in the indictment, arguing there is no evidence that he possessed the requisite intent to steal at the time he acquired possession of the property. Rather, he claims to have been unfairly convicted of the unindicted offense of theft by unlawful appropriation. So, he urges, the evidence is insufficient. We disagree.

Decided October 6, 2000.

Joel N. Shiver, for appellant.

1. To “[d]eprive,” as used in Title 16, Chapter 8, Article 1, means in part “[t]o withhold property of another permanently or temporarily.” Knight correctly notes that, since the indictment charged him with theft by unlawful taking under OCGA § 16-8-2 rather than theft by unlawful appropriation, the State must prove, beyond a reasonable doubt, that Knight possessed the requisite intent to deprive the owners of their property at the time of taking, that is, at the time Knight received possession of the materials and tools at the Dalton Carpet shop.

2. “The love of gain, the desire to get and have, is so wide a principle of human nature, that other motives being eliminated, that remains as a sort of residuary solvent of conduct.” The possession of another’s valuable property can support an inference of the intent to steal, particularly when no other motivation is apparent. And departure from the State (or disappearance within the State) after the crime can authorize a finding of consciousness of guilt. So the fact that Knight accepted a load of valuable carpeting material into his van, possibly made up a story about staying with an uncle in Atlanta, and then disappeared with said material (and his co-worker’s tools), never to be seen again before trial, is sufficient to authorize a rational trier of fact to conclude that Knight had the requisite intent to deprive Dalton Carpet and Umholtz of their respective property at the moment he received possession at the Dalton Carpet shop. It follows there is no fatal variance between the allegations of the indictment and the proof adduced at trial. The evidence is sufficient under the standard of Jackson v. Virginia and OCGA § 16-8-2 to authorize Knight’s conviction for theft by unlawful taking.

Judgment affirmed.

Pope, P. J, and Mikell, J, concur.

Harry N. Gordon, District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.

       Umholtz itemized a GT knee-kicker, a “gun latch [sic]” tile cutter, a hammer, a carpenter square, a stair tool, two stretcher poles, and a trowel notcher, valued at $640 in total.

       OCGA § 16-8-1 (1) (A).

        Spray v. State, 223 Ga. App. 154, 156 (1) (476 SE2d 878) (1996).

        Steadman v. State, 81 Ga. 736, 737 (2) (8 SE 420) (1888).

       See, e.g., Miller v. State, 208 Ga. App. 547 (1) (430 SE2d 873) (1993) (presence of valuables in house is sufficient evidence of intent to commit theft to uphold burglary conviction).

       See Renner v. State, 260 Ga. 515, 517 (3) (a) (397 SE2d 683) (1990).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Chastain v. State, 244 Ga. App. 84, 85 (1) (535 SE2d 25) (2000).


text:
    A00A1337.
    BMH REAL ESTATE PARTNERSHIP v. MONTGOMERY et al.
    (540 SE2d 256)
   Miller, Judge.

Hugh L. Montgomery, Jr. (“Jack”) and Hugh L. Montgomery III, both individually and as co-executors under the will of Agnes L. Montgomery, filed a petition against BMH Real Estate Partnership (“BMH”) seeking to remove an obstruction from an alleged private way across the property of BMH. According to the petition, BMH constructed a new road in nearly the same location as a preexisting road (“the old roadway”) long used by the Montgomerys. BMH blocked off the entrance to the old roadway and installed a gate at the entrance to the new road. When BMH subsequently denied requested access to the new road, the Montgomerys sought relief under OCGA §§ 44-9-54 and 44-9-59.

The probate court ruled in favor of the Montgomerys. BMH then appealed to the superior court where a de novo proceeding was conducted without a jury. In a detailed order, the trial court determined that the Montgomerys “have acquired and do possess the rights of a private way over and along the new road.” The court ordered BMH either to furnish keys to its gate or remove the gate altogether within 48 hours.

In six related enumerations of error, BMH contends the trial court erred in finding a private way. We affirm. Viewed in the light most favorable to the trial court’s judgment, the evidence showed that the Montgomerys own certain real property in Land Lots 377, 378, and 450 and part of Land Lot 415. Before purchasing these lots, Jack Montgomery had used the old roadway for 40 years to access the property north of the railroad tracks to hunt and to take in a tractor and plowing a garden for another Montgomery family who lived on adjacent property. After acquiring the lots adjacent to the roadway in 1983 and 1984, Jack Montgomery used the old roadway to haul out his timber and hay. Using the same roadway, he then replanted pine trees for future harvesting at his certified tree farm. In 1985, to make the road usable year round, he brought in chert by dump truck and spread the chert with a bulldozer. With six inches of chert placed atop the roadway, it held up “real good” for four or five years. Later that same year, Jack Montgomery installed a gate at the entrance to the old roadway to keep out trespassers.

In November 1988, to accommodate persons attending an auction for the sale of property abutting part of the old roadway, Jack Montgomery unlocked his gate to allow access. One attendee at the auction was John Benefield, a co-partner in BMH, the eventual purchaser of the property being auctioned. BMH’s purchase consisted of a several hundred-acre tract and a 60-foot-wide “neck” of land which encompassed the old roadway. Benefield admitting having seen that “[a]t the time of the auction, they had graded [the old roadway] and filled the ruts.”

After BMH bought the property, Montgomery gave Benefield a key to the lock on the gate because the old roadway was the only access BMH had. In the spring of 1989, however, BMH built a new road, running either parallel to and on the left side of the old roadway or, in some places, atop the old roadway. By positioning a barbed wire, fence at the entrance of the old roadway, BMH obstructed the entrance to the old roadway off Bagwell Road, thereby forcing Montgomery and other users of the old roadway to begin using the new road. The new road runs next to the old one and then merges with it at a railroad crossing. Both the old roadway and the new road lie within the 60-foot strip.

According to Jack Montgomery, “after he closed my road, the old road, I used the new road [freely],” from 1989 until September 1998 when he was locked out and BMH denied permission for any further access. By letter from counsel, BMH instructed Jack Montgomery not to use the road or face prosecution for criminal trespass.

1. BMH first contends the trial court erred in finding that general use or other use by the appellees was sufficient to create a private way.

In a bench trial, as here, the trial court sits as the trier of fact and the court’s findings will not be set aside unless clearly erroneous. Since the clearly erroneous test is the same as the any evidence rule, an appellate court will not disturb the factual findings of the trial court when there is any evidence to sustain such findings.

A right of private way over another’s land may arise from an express grant, from prescription by seven years uninterrupted use through improved lands, by twenty years use through wild lands, or by necessity. “Whenever a private way has been in constant and uninterrupted use for seven or more years and no legal steps have been taken to abolish it, it shall not be lawful for anyone to interfere with that private way.”

To sustain a proceeding under OCGA §§ 44-9-54 and 44-9-59 (a) to remove an obstruction from a private way, the petitioner must show he has been in uninterrupted use of the way for seven years or more, that the roadway does not exceed twenty feet in width, that it is the same route and same number of feet originally appropriated, and that he has kept it open and in repair during such period. The rationale behind the requirement of keeping the roadway in repair is to afford notice of adverse use to the actual owner of the property.

Here, Jack Montgomery testified that the old roadway was the “same road” he had used for various purposes long before he purchased the property nearby. He testified that the old roadway was utilized by his predecessors-in-title for many activities including timbering and hauling pulpwood. No evidence showed that BMH’s predecessor-in-title ever prevented Montgomery or his predecessors from using the old roadway or that Montgomery ever sought permission to use it. No question arose as to whether the old roadway exceeded 20 feet in width. And, as the trial court noted, the Montgomerys “made significant repairs to the old road.” Plainly, repairing the road and installing a gate at the entrance placed the owner on notice that another person was using the road under a claim of right. Since the evidence supports the trial court’s finding that the Montgomerys made the required showings for a private way, its judgment must be affirmed.

2. BMH next claims the trial court erred in finding that the Montgomerys did not abandon the old roadway.

To establish any presumption of abandonment of prescriptive title by mere nonuse, a minimum of 20 years nonuse of the private way must be shown. Here, it is undisputed that the Montgomerys continued to use the old roadway until the spring of 1989 when the new road became available and the entrance to the old roadway was fenced with barbed wire. This is only 11 years nonuse of the blocked old roadway.

3. BMH then asserts the trial court erred in finding that any use of the new roadway or any roadway by appellees was anything other than a permissive use.

BMH correctly notes that use alone is insufficient to acquire prescriptive title under OCGA § 44-9-1. “An owner’s acquiescence in the mere use of his road establishes, at most, a revocable license.” When the use of a private way originates by permission of the owner, prescription does not begin to run until the permissive user notifies the owner, by repairs or otherwise, that he has changed his position from mere licensee to prescriben

BMH’s recitation of law misses the mark. The issue is not whether the Montgomerys’ private way originated in permissive use while BMH was the owner, but whether BMH’s actions effectively modified the Montgomerys’ already existing prescriptive rights. We conclude they did.

Once an easement has been acquired, the owner of the servient tenement may not unilaterally alter the path of the easement. When a subsequent owner obstructs part of a private way but permits the private way to be changed a few feet so that its use is continued without interruption, such permissive change will not defeat a title by prescription to a private way that has already ripened nor create a new date from which prescriptive title must ripen as to the permitted change. By obstructing the entrance to the old roadway and permitting access to the new road, BMH did not defeat the Montgomerys’ already established rights. As noted by the trial court, the Montgomerys “simply accepted the Defendant’s improvement and slight relocation and continued to use their private way.” The trial court did not err in this determination.

4. BMH’s fourth enumeration contends the trial court erred in finding it was estopped from claiming an abandonment by the Montgomerys. This enumeration is itself deemed abandoned for failure to support it with either argument or citation of authority, as required by the rules of this Court.

5. BMH next claims the trial court erred in finding that a private way existed across BMH’s land because Jack Montgomery entered into a Boundary Line Agreement with John W. Bagwell, Jr. on November 23,1988. BMH argues that Jack Montgomery thereby conveyed any right in his property that would attach to the thenBagwell property and so to the new road subsequently built by BMH. We disagree.

Decided October 6, 2000.

Richard C. Sutton, for appellant.

Robert N. Farrar, for appellees.

In this boundary line agreement, Bagwell (BMH’s grantor) and the Montgomerys “quit-claim [ed] to the other such area respectively adjoining . . .” the defined boundary line. But the agreement also expressly provided:

The parties further acknowledge and agree that there exists an old private road running generally north and south along and adjacent to the easterly land lot lines [and] . . . each party grants to the other, their successors and assigns the right of ingress and egress over and across said road.

Reading these two provisions together, it is our view that the quitclaim provision with a cross-grant or retention was framed to exclude from the conveyance any transfer of the Montgomerys’ rights in the private road as mutually recognized. And, as we held in Division 3, the evidence authorizes the conclusion that BMH permitted the Montgomerys to adapt their existing private right-of-way onto the new adjacent road for nearly ten years, after BMH blocked access to the old roadway.

6. BMH’s contention that the trial court erred by finding any obstruction of any private way by BMH lacks merit. In any event, this enumeration also was waived due to BMH’s failure to support it with citations of authority or argument.

Judgment affirmed.

Pope, P. J., and Mikell, J, concur.

       In the early 1990s, Jack Montgomery deeded certain properties to his wife, now deceased, and others to his son. He reserved a life estate in part of the property.

       BMH is a real estate partnership composed of John H. Benefield, Jr. and James N. Benefield.

       OCGA § 9-11-52 (a); Sam’s Wholesale Club v. Riley, 241 Ga. App. 693 (527 SE2d 293) (1999).

        Lyon v. State of Ga., 230 Ga. App. 264 (495 SE2d 899) (1998).

       See OCGA § 44-9-1.

       OCGA § 44-9-54.

        Keng v. Franklin, 267 Ga. 472 (480 SE2d 25) (1997); Burnum v. Thomas, 71 Ga. App. 690, 692 (2) (31 SE2d 925) (1944).

        Ga. Pacific Corp. v. Johns, 204 Ga. App. 594, 595 (420 SE2d 39) (1992).

        Douglas v. Knox, 232 Ga. App. 551, 552 (2) (502 SE2d 490) (1998) (successive users may tack prescriptive title under OCGA § 44-5-172).

        Ga. Pacific, supra, 204 Ga. App. at 595. Accord First Christian Church &c. v. Realty Investment Co., 180 Ga. 35, 43 (178 SE 303) (1934) (on rehearing).

        Lyon, supra, 230 Ga. App. 264.

        Gilbert v. Reynolds, 233 Ga. 488, 494 (212 SE2d 332) (1975).

        Eileen B. White & Assoc. v. Gunnells, 263 Ga. 360, 362 (434 SE2d 477) (1993).

       Id.

        First Christian Church, supra, 180 Ga. at 39.

       Compare Chandler v. Robinson, 269 Ga. 881, 883 (2) (506 SE2d 121) (1998).

        Thomason v. Kern & Co., 259 Ga. 119, 120 (376 SE2d 872) (1989).

        Cook v. Wimpey, 57 Ga. App. 338 (2) (195 SE 325) (1938), cited as correct statement of the law in Ridley v. Griffeth, 216 Ga. 167 (3) (115 SE2d 336) (1960) (factfinder could find that change of a few feet in prescriptive easement did not defeat title since owner’s actions necessitated the change and the change could be found to be insignificant).

       Id.

       Court of Appeals Rule 27 (c) (2).

        Massey Assoc., Ltd. v. Whitehorse Inns of Ga., 265 Ga. 320, 322 (454 SE2d 513) (1995).

       Compare Short v. Walton, 61 Ga. 28 (1878) (It is not sufficient to show that those claiming the prescription were accustomed for more than seven years to pass over the land, changing the way, as they saw fit, to avoid obstructions or for convenience).

        Alexander v. Steining, 197 Ga. App. 328 (398 SE2d 390) (1990); Court of Appeals Rule 27 (c) (2).


author: Ruffin, Judge.

text:
    A00A1528, A00A1529.
    THOMAS MOTE TRUCKING, INC. v. PCL CIVIL CONSTRUCTORS, INC.; and vice versa.
    (540 SE2d 261)
   Ruffin, Judge.

Barkay Construction, Inc. sold PCL Civil Constructors, Inc. a slip form machine used to build curbs and gutters. Thomas Mote Trucking, Inc. later took the machine, claiming that Barkay had previously transferred the machine to it. PCL sued Thomas Mote Trucking for trover. Following a bench trial, the trial court ruled that PCL had title to the machine and ordered Thomas Mote Trucking to return it, but awarded PCL no damages for hire for the period of wrongful detention. In Case No. A00A1528, Thomas Mote Trucking appeals, asserting that the trial court erred in determining that PCL owns the machine. In Case No. A00A1529, PCL appeals the court’s failure to award damages. Because both cases involve the same operative facts, we have consolidated them. For reasons that follow, we affirm the trial court’s ruling that PCL owns the machine, reverse the zero damages award, and remand for a redetermination of damages.

The record shows that Barbara Roberts formed Barkay Construction in 1993. In the fall of 1993, Thomas Mote, the president of Thomas Mote Trucking, offered to loan Barkay a sum of money. During 1993 and 1994, Mote loaned Barkay a total of $31,260. In exchange, Roberts executed two unsecured promissory notes in favor of Mote. One note was due in November 1994, and the other was due in March 1995. Roberts also issued Mote shares of stock in Barkay, making him a 49 percent owner of the company.

Barkay was unable to pay the promissory notes. According to Roberts, the company was nearly insolvent by the fall of 1995, and its only asset was a used slip form machine. At some point in 1995, Roberts and Mote met to discuss the business. During that meeting, Roberts prepared and signed a letter dated May 15, 1995, addressed to “Mr. Thomas Mote, Thomas Mote Trucking.” The letter, which contained a reference line thát stated “Re: Used Miller Formless Model M-1000 (Right Hand) S/N: 1010R,” stated: “BarKay Construction Inc. transfers the above referenced slipform machine complete with trimmer, tools, and vibrators for the amount of $30,000 (Thirty thousand dollars).” The letter was signed by Roberts on behalf of Barkay.

Roberts testified that she executed the letter in an attempt to protect the slip form machine from creditors during bankruptcy, which she felt was imminent. Roberts said that she had just learned that Barkay could no longer purchase concrete, and “if we don’t have concrete we can’t work.” Roberts testified that she prepared the letter in September 1995, but backdated it to May 1995 because Mote said that “under the bankruptcy laws the trustee can overturn any action that’s taken or decisions made six months prior.” Roberts denied that the letter transferred ownership of the machine, stating “ [i] t was not a bill of sale. I didn’t get any money for it. I didn’t get anything for it. I was simply trying to protect the machine itself.”

After Roberts prepared the May 15 letter, Barkay continued to use the slip form machine without paying rent to Mote. Roberts testified that Mote continued to demand payment on the outstanding promissory notes. She also stated that Mote offered to approach a bank with which he had a relationship to seek financing for Barkay, using the slip form machine as collateral. Roberts stated that, based on her discussions with Mote, she understood that either she or Mote would have been authorized to use the slip form machine — including possibly selling it — to procure financing for Barkay.

Mote testified to a very different understanding of the May 15 letter. According to Mote, Roberts drafted the letter and transferred the slip form machine to him because Barkay could not afford to pay the promissory notes. Mote said that he accepted the machine as full satisfaction for Barkay’s debts. He admitted that he continued to ask Roberts for money, however, because he “still felt like she owed me some money besides the machine.” Mote also testified that he allowed Barkay to continue using the machine rent-free after the transfer because he wanted Barkay (of which he owned 49 percent) to succeed.

Felmer Cummins, a certified financial planner who worked for Mote, testified that he was present when Roberts drafted the May 15 letter. Cummins said that he was concerned because Mote had no collateral for the promissory notes. Cummins testified that Roberts left the room, saying, “Well, I can sew this up. I’ll give him the piece of equipment.” Roberts returned with the letter, which — according to Cummins — was executed on May 15 and was not backdated.

In December 1995, Barkay was working on several projects, including a highway project under a subcontract with PCL. According to Roberts, however, the company was “still living hand to mouth.” Roberts entered into an agreement to sell the slip form machine to PCL for $40,000, and she signed a “Bill of Sale” to that effect dated December 21, 1995. Under the Bill of Sale, Barkay warranted that it was conveying good title, free and clear of all encumbrances. In a separate document, PCL agreed to lease the machine to Barkay and to allow Barkay to repurchase it, applying the lease pay-merits toward the purchase price.

Roberts testified that she called Mote and told him that she had sold the machine to PCL, but would be repurchasing it as Barkay performed the work under the subcontract. Roberts said that Mote wanted to know how much she could pay him, and she told him that she had used the proceeds of the sale to pay bills and had no money for Mote.

During the evening of January 25 or early morning of January 26, 1996, Mote removed the machine from the PCL job site. As of the date of trial, the machine remained in Mote’s possession, and another business formed by him was using it to perform sidewalk and curb work. Mote testified that, although he heard rumors in January 1996, he did not know that PCL had bought the machine until after he picked it up. Mote stated, however, that he told Roberts he was going to get it in a couple of weeks before he did so.

Roberts testified that because most of Barkay’s work required the slip form machine, the company ceased operations immediately after Mote took the machine. Barkay filed for bankruptcy in March 1996.

Following a bench trial, the trial court issued a judgment that (1) PCL has title to the slip form machine; (2) Thomas Mote Trucking is ordered to deliver the machine to PCL; and (3) PCL is not entitled to any damages from Thomas Mote Trucking for rental value of the property. The parties did not request, and the trial court did not issue, detailed findings of fact or conclusions of law.

Case No. A00A1528

1. In its first enumeration of error, Thomas Mote Trucking asserts that the trial court erred by denying its motion for summary judgment. As we have ruled, however, “[d]enial of a motion for summary judgment is rendered moot by the court’s entry of judgment on the verdict. Thus, an appellate court will not review the denial of a motion for summary judgment following a trial on the merits.”

2. Thomas Mote Trucking also asserts that the trial court erred by allowing Roberts to testify to the meaning of her May 15 letter to Mote. According to Thomas Mote Trucking, such testimony was inadmissible parol evidence. PCL, on the other hand, argues that the evidence was admissible to prove that the purpose of the contract was to defraud creditors and to show that the contract lacked the essential element of consideration. We agree with PCL.

“Parol evidence is inadmissible to add to, take from, or vary a written contract.” Parol evidence may be introduced, however, to show that an agreement was void at the outset. As PCL’s principal argument at trial was that the purported transfer was void ab initio, Roberts’ testimony was admissible on that point.

3. In three enumerations of error, Thomas Mote Trucking contends that the trial court erred in ruling that PCL owned the machine. We will affirm the trial court’s ruling if there is any evidence to support it, and we are “obliged to give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Applying this standard, we uphold the trial court’s ruling, although not for the reasons urged by PCL.

“An action in trover will lie on the part of the true owner of personal property against one who has converted such property to his own use.” A plaintiff may prevail in an action for trover by showing that (1) it has title to the property or a right of possession; and (2) the defendant was in possession of the property when the action was brought and, in its answer, denied that the plaintiff had title to, or the right to possess, the property. Thomas Mote Trucking does not deny that PCL satisfied the second element, but argues that it, rather than PCL, owns the property by virtue of the May 15 letter. PCL argues that the May 15 letter was not a valid transfer for three reasons.

First, PCL contends that the letter was merely an attempt to defraud creditors. Roberts testified that “the sole purpose” of the letter was “an attempt to avoid any potential creditors’ actions against Barkay Construction that might result in the loss of the [slip form] machine,” and she later described the document as “fraudulently . . . made.” She stated that Mote was aware of the fraudulent purpose of the transaction and even proposed backdating the letter to deceive the bankruptcy trustee. Under OCGA § 18-2-22 (2), a contract “made with intention to delay or defraud creditors, where such intention is known to the taking party” is null and void. The fact that a transfer is made with the intent to defraud creditors, however, does not make it void for all purposes; it simply makes the transfer void as to the creditors and those with claims on the transferor. The transfer remains valid as between the transferor and transferee and their privies.

Typically, a fraudulent transfer claim is made by a creditor who seeks to recover property that was wrongfully transferred by the debtor in an attempt to avoid paying the debt. In this case, however, a subsequent transferee of the debtor seeks to set aside the original transfer on the grounds of fraud. That is, PCL is attempting to show that, as between Barkay and Thomas Mote Trucking, Barkay retained title to the machine, allowing Barkay to sell it to PCL. Because PCL’s claim to the machine is based on its purchase from Barkay, PCL is Barkay’s privy and stands in Barkay’s shoes in challenging the validity of Barkay’s contract with Thomas Mote Trucking. Thus, regardless of whether the conveyance was a fraud upon creditors, PCL has no argument that it was invalid as to Thomas Mote Trucking.

Second, PCL contends that the purported transfer lacked consideration. PCL points to Roberts’ testimony that Barkay received nothing from Thomas Mote Trucking in exchange for the slip form machine and that Mote thereafter continued to demand payment of the promissory notes. It is axiomatic that a contract without consideration is invalid. But the May 15 letter plainly states that the machine is being transferred “for the amount of $30,000.” “[E] ven if it is shown that the recited consideration was not paid, it does not void the contract; the recital of the consideration merely gives rise to an implied promise to pay, which can be enforced by the other party.” Thus, the purported May 15 agreement does not fail for lack of consideration.

Third, PCL argues that the evidence demanded a finding that the May 15 letter was not a sales contract at all, but was intended to provide Thomas Mote Trucking with collateral against payment of the outstanding promissory notes. According to PCL, the letter was simply a security interest which Thomas Mote Trucking failed to perfect by either possessing the machine or following the requirements of OCGA § 11-9-301. Although Mote and Cummins both testified that they understood Roberts was giving Mote the machine as collateral, the unambiguous language of the May 15 letter says otherwise. The letter states that Barkay is transferring the machine for $30,000; it says nothing about creating a security interest. Assuming the letter is an otherwise valid agreement, parol evidence cannot alter its plain terms. Thus, we reject PCL’s arguments for invalidating the May 15 letter.

There is, however, another basis on which the trial court could have decided that the letter was not a valid sale or transfer. The court could have concluded that the May 15 letter was not a sale or transfer at all because the parties never intended it to be so. As previously stated, parol evidence is admissible to show that a contract was void from the outset. Roberts testified that she was concerned that Barkay would lose the slip form machine if it filed for bankruptcy and that she therefore drafted a document purporting to sell the machine to Thomas Mote Trucking for $30,000 and backdated it several months. In the event Barkay did file for bankruptcy, Roberts would produce the letter and claim to have sold the machine outside the prohibited preference period; otherwise, she and Mote would simply act as if no sale had occurred.

Several additional facts support this interpretation. Thomas Mote Trucking did not take possession of the machine or exercise ownership of it following the May 15 letter, and Barkay continued using the machine as it always had, without paying any rent. Most importantly, Thomas Mote Trucking did not actually pay the $30,000 purchase price, and Mote continued to act as if payment on the promissory notes was due. Had the transaction truly been a sale, then Mote would have paid the purchase price or extinguished $30,000 of debt owed by Barkay. His failure to do either suggests that the entire transaction was a sham and was never intended to transfer title, even fraudulently. Thus, the court could have concluded that the transfer was phony and invalid and that Barkay still owned the machine when it was sold to PCL.

Thomas Mote Trucking argues that PCL has waived any right to the slip form machine by failing to “perfect their claim” to the machine in Barkay’s bankruptcy proceeding. The slip form machine was not listed in the bankruptcy petition as an asset of Barkay because, as Roberts testified, it no longer belonged to Barkay at that point. Nevertheless, Thomas Mote Trucking argues that the machine was required to be brought into the bankruptcy proceeding and that its rightful ownership could only be adjudicated there. But Thomas Mote Trucking cites no authority for this proposition, and we fail to see why PCL was required to intervene in a proceeding that ostensibly did not involve the property at issue.

Case No. A00A1529

4. PCL contends that the trial court erred by awarding PCL zero damages. We agree.

In a trover action, the plaintiff may elect to demand a verdict for the return of the property “and its hire, if any.” The term “hire” means “reasonable rental value of the property.” The hire runs from the date the property was converted.

Here, PCL elected to demand the return of the slip form machine and its hire. PCL’s construction manager, Patrick Malone, testified as to the rental value of the slip form machine. According to Malone, the “Blue Book” is an industry-accepted standard used to determine the fair rental value of equipment. Based on the Blue Book, Malone testified that the reasonable rental value of the slip form machine was $5,505.97 per month. Additionally, Malone testified that at the time Thomas Mote Trucking took the machine, PCL had leased it to Barkay for $100 per week for any period that the machine was not being used at the PCL project site. The rental rate for work performed at the PCL site was $6 per lineal foot of curb. Thomas Mote Trucking did not rebut Malone’s testimony.

During closing argument, PCL’s attorney asked that the trial court award hire based on either the Blue Book evidence or on the rental prices PCL was charging Barkay. The court agreed that PCL “would be entitled to some rent,” but concluded that the Blue Book figures were “just out of reason” and that “any damages that I brought in would be pure speculation.” Accordingly, the court awarded no hire.

Decided October 6, 2000.

Edward J. Magner, Jr., for appellant.

Moye, O’Brien, O’Rourke, Hogan & Pickett, Nathan E. Minear, for appellee.

Although, as the trier of fact, the court had discretion to determine the rental value of the machine, the court did not have discretion to award zero damages for hire after it had determined that PCL owned the machine and that PCL was entitled to rent. The court was not required to accept the Blue Book figures quoted by Malone, but there was another measure of reasonable rental value — the rent that PCL charged Barkay for using the machine. As for the court’s conclusion that any figure it arrived at would be speculative,

(t)he rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted.

There is no question that PCL was entitled to hire. The only question is the amount, and the trial court had ample evidence to assist in answering that question and no basis to conclude that zero dollars was a reasonable amount. We therefore remand for the trial court to determine the reasonable rental value of the slip form machine during the period it was wrongfully detained by Thomas Mote Trucking.

Judgment affirmed in part, reversed in part, and remanded with instructions.

Andrews, P. J, and Ellington, J., concur.

       PCL also sued Barkay for breach of warranty of title, fraud in the inducement, and breach of contract, and it sued Barkay’s founder, Barbara Roberts, for fraud. Because Barkay had filed for bankruptcy, however, the case proceeded to trial only against Thomas Mote Trucking. Thus, PCL’s claims against Barkay and Roberts are not at issue in this appeal.

       See OCGA § 9-11-52.

       (Punctuation omitted.) Owens v. McGee & Oxford, 238 Ga. App. 497, 502 (5) (518 SE2d 699) (1999).

       PCL also argues that the evidence was admissible to explain ambiguities in the letter. Although the letter does not appear to be ambiguous, we need not decide this question because the evidence was admissible for other reasons.

       OCGA § 13-2-2 (1); see also OCGA § 24-6-1.

       OCGA § 24-6-8; del Mazo v. Sanchez, 186 Ga. App. 120, 124 (366 SE2d 333) (1988).

        Simmons v. McBride, 228 Ga. App. 752, 753 (492 SE2d 738) (1997).

        Nat. Chemco v. Union Camp Corp., 209 Ga. App. 317 (433 SE2d 691) (1993).

        Fowler v. Kragel, 93 Ga. App. 403 (1) (91 SE2d 794) (1956).

       See Farkas v. Farkas, 235 Ga. App. 491, 492 (510 SE2d 58) (1998).

       See McDaniel v. White, 140 Ga. App. 118, 119 (2) (230 SE2d 500) (1976).

       See McCranie v. Cobb, 174 Ga. 370, 379 (162 SE 692) (1932) (“ ‘ “A fraudulent transfer is good as against the grantor . .. [and] parties claiming under him.” ’ ”).

       See generally Decatur North Assoc. v. Builders Glass, 180 Ga. App. 862, 863 (1) (350 SE2d 795) (1986) (discussing meaning of “privity of contract”).

       See OCGA § 13-3-40 (a).

        Keheley v. Lawrence, 172 Ga. App. 533, 534-535 (323 SE2d 717) (1984).

       Although the trial court found the letter to be ambiguous because it does not state to whom the machine is being transferred, we disagree. As the letter is addressed to Mote, it is obvious that Mote is the intended transferee.

       See OCGA § 24-6-1.

       See Ga. Farm &c. Ins. Co. v. Brown, 192 Ga. App. 504, 506 (385 SE2d 87) (1989) (where “neither party intended to enter into a contract for the sale and purchase of the . . . property,” purported transfer was not a completed sale).

       Thomas Mote Trucking states that PCL “skirted closely to the prohibitive provisions” of OCGA § 18-2-22 (1), which prohibits certain transfers by insolvent debtors. Roberts, however, testified that Barkay Construction was not insolvent when it executed the Bill of Sale to PCL, and there is no evidence suggesting that the Bill of Sale was otherwise fraudulent.

       Thomas Mote Trucking does cite authority for the proposition that Barkay should have included its lease of the machine in the bankruptcy estate. But it does not indicate how any failure of Barkay to include the lease resulted in PCL waiving its right of ownership of the machine.

       OCGA § 44-12-151 (3).

        Adams Refrigerated Express v. Ingot, 176 Ga. App. 457, 459 (1) (336 SE2d 286) (1985); see also McLaurin v. Henry, 90 Ga. App. 864, 867 (1) (84 SE2d 713) (1954).

        Youngblood v. Ruis, 96 Ga. App. 290, 294 (3) (99 SE2d 714) (1957).

       Thomas Mote Trucking contends that PCL waived its right to recover hire because the proposed verdict form in the consolidated pretrial order contained the term “damages” rather than “hire.” We find no waiver, however, in view of PCL’s clear statement at trial that it elected return of the property plus hire, and because it is plain from the trial court’s oral findings that the court’s judgment was based on such an election. See Youngblood, supra at 293 (2) (a) (“the fact that the jury returned a verdict for the property and hire, together with the entering of judgment thereon, is sufficient to show that such an election was made”).

       See Cleaveland v. Alford, 188 Ga. App. 690, 691 (2) (373 SE2d 853) (1988).

        Al & Zack Brown, Inc. v. Bulloch, 238 Ga. App. 246, 251 (2) (518 SE2d 458) (1999).


text:
    A00A1814.
    IN RE ESTATE OF SLAUGHTER.
    (540 SE2d 269)
   Johnson, Chief Judge.

Moses Slaughter, Jr. died intestate. His sister, Annie Walker, applied for letters of administration, claiming to be the sole heir. On the same day, Cynthia Boggs filed a petition to determine heirs at law, claiming to be Slaughter’s child born out of wedlock. After a bench trial, the probate court found there was clear and convincing evidence that Boggs was Slaughter’s daughter and ruled that Boggs is entitled to inherit under OCGA § 53-2-3. Walker appeals this determination.

We first note that Walker enumerates four errors. However, only one argument is presented in her appellate brief, and that argument relates solely to her challenge regarding the sufficiency of the evidence. Therefore, we will consider whether Boggs presented sufficient evidence in the probate court to overcome the presumption that she was the child of her mother’s spouse and to show that she was, in fact, Slaughter’s child. Any other issues raised in Walker’s enumerations of error are deemed abandoned and waived pursuant to Court of Appeals Rule 27 (c) (2).

The record shows that Cynthia Boggs was born while her mother, Mary Boggs, was married to Franklin Boggs. However, for approximately two years before Boggs was conceived,. Mary Boggs was separated from Franklin Boggs and had no sexual relationship with him. Mary Boggs testified that she dated Slaughter exclusively during this period and had no contact with Franklin Boggs during this period. Mary Boggs also testified that Slaughter was the father of Cynthia Boggs. She stated that Slaughter was happy about the child, acknowledged he was the father, and provided money, diapers, and clothing for his daughter. He always gave Cynthia Boggs money in birthday and Christmas cards. In addition, he paid for Cynthia Boggs to go to school and helped provide for her son. Cynthia and Mary Boggs both testified that Slaughter told his mother and friends that Cynthia Boggs was his daughter. They also testified that Slaughter attended the birth of Cynthia Boggs’ son and told his family and neighbors that the boy was his grandson. Documentary evidence showed that Cynthia Boggs was listed as a grandchild in the funeral home program when Slaughter’s mother died. She was listed as Slaughter’s daughter in the funeral home program when Slaughter died.

Three of Slaughter’s friends testified that Slaughter told them, and others in their presence, that Cynthia Boggs was his daughter. He also told people that Cynthia Boggs’ son was his grandson. According to at least one of these witnesses, Slaughter always talked about legitimating Cynthia Boggs, but he never got around to it.

Walker maintains that Boggs did not meet her burden of showing she was Slaughter’s biological child. In support of this claim, she argues that Slaughter never told her that Cynthia Boggs was his child or that Cynthia Boggs’ son was his grandson. She also cites the fact that Mary Boggs admitted she listed Franklin Boggs as Cynthia’s father on her birth certificate and on school registration forms. Walker also notes that Slaughter never sought an order declaring Cynthia Boggs to be his legitimate child, that he never executed a sworn statement attesting to a parent/child relationship, and there was never any genetic testing performed which would establish that he was Cynthia’s biological father.

Under OCGA § 53-2-3 (2) (A) (v), a child born out of wedlock may inherit from her biological father if there is “clear and convincing evidence that the child is the child of the father.” In this case, Cynthia Boggs was born while her mother was married to Franklin Boggs. And, there is a presumption that a child born during wedlock is legitimate. However, this presumption may be rebutted by evidence of nonaccess or other testimony.

In the present case, Cynthia Boggs presented evidence rebutting the presumption that Franklin Boggs was her biological father. Mary Boggs testified that at the time Cynthia Boggs was conceived and born, Mary and Franklin Boggs were living apart. The evidence further showed that during this time, Mary Boggs exclusively saw Slaughter, and Franklin Boggs had no access to Mary Boggs. Testimony that the legal husband had no access to the mother, coupled with evidence that the purported biological father was the only man who had access to the mother, is sufficient to overcome the presumption that the husband shown on the birth certificate was the child’s father.

Since the presumption here was clearly overcome, the issue then becomes whether Cynthia Boggs has presented clear and convincing evidence that she was Slaughter’s daughter. Contrary to Walker’s assertion, Cynthia Boggs and Mary Boggs did not provide the only evidence showing that Cynthia Boggs was Slaughter’s daughter. Three other witnesses testified that, notwithstanding the fact that Slaughter never took steps to legitimate Cynthia Boggs, he acknowledged her as his biological child and acknowledged Cynthia Boggs’ son as his grandchild. In addition, when Slaughter’s mother died, Cynthia Boggs was listed in the funeral home program as her grandchild, and when Slaughter died, Cynthia Boggs was listed in the funeral home program as his daughter. The trial court did not err in holding that Cynthia Boggs was Slaughter’s child and therefore entitled to inherit as his heir under OCGA § 53-2-3.

Decided October 6, 2000.

Wiseman, Blackburn & Futrell, James B. Blackburn, Jr., for appellant.

George L. Lewis, for appellee.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       See Ghrist v. Fricks, 219 Ga. App. 415, 418 (1) (465 SE2d 501) (1995).

        Parks v. State, 155 Ga. App. 44, 45 (270 SE2d 271) (1980).

       See id.

       See generally Youmans v. Ormandy, 206 Ga. App. 255, 256-257 (1) (424 SE2d 828) (1992).


author: Phipps, Judge.

text:
    A00A1835.
    NORTH GEORGIA ELECTRIC MEMBERSHIP CORPORATION v. WEBB et al.
    (540 SE2d 271)
   Phipps, Judge.

The estates of Herbert Bryant and Vernal Webb brought these now consolidated wrongful death actions against North Georgia Electric Membership Corporation (NGEMC) and the Okonite Company (Okonite). We granted NGEMC’s application for interlocutory appeal of the trial court’s denial of its motion for summary judgment. Upon consideration, we hold that the court properly denied summary judgment to NGEMC in view of disputed issues of material fact.

Decedents were employed as electrical linemen by P & E Electric (P & E). P & E is a contractor specializing in the erection and modification of electrical distribution systems operated by suppliers of electricity such as NGEMC. NGEMC contracted with P & E for the installation of new power poles and overhead lines in Catoosa County.

Electrical linemen employed by P & E use aerial jumper cables to provide a safe area so that they can perform work on existing power lines while allowing the utility company to continue providing electrical service to its customers. Cables used by P & E are designed, manufactured, and sold by Okonite. While decedents were engaged in performance of P & E’s contract with NGEMC, a cable manufactured by Okonite malfunctioned, causing approximately 14,400 volts of electricity to surge repeatedly through a deenergized power line and electrocute them.

Decedents’ estates charge NGEMC with negligence in not having set a safety device known as a recloser so that it would have shut down the electrical system without allowing it to restart after the equipment malfunctioned. Reclosers operate much like residential circuit breakers. They are designed to protect power lines and equipment from power surges created by faults in an electrical system, while limiting interruption of service. If a recloser detects a fault in a system, such as a tree limb falling on a power line, it will temporarily stop the flow of electricity by opening the circuits. The recloser then automatically recloses the circuits, thereby restoring the flow of electricity. If the fault has not been removed, as by the tree limb falling to the ground, the recloser will then cause the circuits to reopen, again stopping the flow of electricity. The recloser is manually set to cycle through this process a specified number of times before shutting down the system, i.e., “locking out.” The recloser may be set to a “one-shot lockout,” in which case it does not reclose the circuits after locking out when the initial fault is detected. When the accident in this case occurred, the recloser controlling the area where decedents were working was not set to lock out until the fourth cycle.

During most of the afternoon on the day in question, decedents and groundman Johnny Whobrey were moving energized power lines from an old pole to a new pole. Decedents were working in bucket trucks. While working on the energized lines, they wore protective rubber gloves, and they used rubber hoses and rubber blankets to prevent accidental contact with the wires and jumper cables. When they began working on deenergized wires late in the afternoon, they stopped using this protective equipment. Without warning, a jumper cable blew out, arced, and sent a power surge through the deenergized line the men were attaching to a pole. P & E groundman Whobrey testified that after hearing the initial arcing noise, he observed Bryant slump over immediately and that Webb succumbed after successive bolts of electricity passed through the line.

At the time of this incident, NGEMC’s policy was to set the rec-loser to a one-shot lockout only if the contractor working on the system requested it to do so. P & E’s crew foremen were responsible for making such a request, but decedents’ crew foreman had not done so. Decedents’ estates’ expert witness Geiger testified that because NGEMC owned the high power voltage system, had exclusive access to the recloser, and knew that the P & E crew of which Bryant and Webb were members was performing work on or near energized lines, it was negligent in not setting the recloser to a one-shot lockout on its own initiative.

1. NGEMC first contends that as a matter of law, any improper setting of the recloser was not the proximate cause of the electrocutions. NGEMC advances two basic arguments.

(a) In primary reliance on Beamon v. Ga. Power Co., NGEMC argues that even if setting the recloser to a one-shot lockout would have prevented the electrocutions, its failure to do so merely furnished the condition by which the electrocutions were made possible and did not constitute the legal, proximate cause thereof.

A prior and remote cause can not be made the basis of an action if such remote cause did nothing more than furnish the condition, or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, efficient cause of the injury.

But “[t]he causal connection between an original act of negligence and injury to another is not broken by the intervening act if the nature of such intervening act was such that it could reasonably have been anticipated or foreseen by the original wrongdoer.” Whether an intervening act was reasonably foreseeable is a question for the jury to decide except in “plain and indisputable cases.”

In Beamon, an electrical lineman was attempting to reposition an electrical transformer on a utility pole owned by Georgia Power Company when the bucket truck in which he was working suddenly lurched upward, causing him to come into contact with an energized wire and receive an electrical shock. The lineman sued Georgia Power and the manufacturer of the bucket truck. He charged Georgia Power with negligence in improperly mounting the transformer to the utility pole over a metal groundwire. He sued the manufacturer for defects in the bucket truck. We held that any negligence by Georgia Power in improperly mounting the transformer was not the proximate cause of the plaintiff’s injury, because it was not reasonably foreseeable that someone working on the transformer would be involuntarily lifted several feet above the transformer in an allegedly defective bucket truck. In addition, Beamon admitted that he was not wearing rubber gloves or using rubber hoses, and it was undisputed that his injury would not have occurred if he had done so.

This case is distinguishable from Beamon. Here, there is evidence that one of the purposes of setting a recloser to a one-shot lockout is to protect linemen who are working in the vicinity of energized wires from the risk of electrocution caused by equipment malfunction. Because this is precisely the event that occurred, a jury would be authorized to find that decedents’ deaths by electrocution were a reasonably foreseeable consequence of NGEMC’s omission. And there is conflicting evidence on the question of whether decedents’ deaths would have been prevented if they had been wearing rubber gloves and using rubber hoses.

(b) NGEMC argues that any negligence by it was not the proximate cause of Bryant’s death, because the estates’ expert Geiger admitted in his deposition that in all probability Bryant was killed instantaneously and would not have been helped if the recloser had been set differently. But Geiger gave conflicting testimony in his affidavit. There, he testified that in his opinion, the probability would have been much greater for both Bryant and Webb to survive if the recloser had been set to a one-shot lockout.

Where a party presents an expert witness whose testimony is contradictory, a reviewing court gives to such party the benefit of the most favorable version of such testimony as a whole which the jury would be authorized to accept. Because Geiger’s affidavit testimony would authorize a finding in favor of decedents’ estates on the issue of proximate cause, NGEMC has not carried its burden on summary judgment of showing an absence of evidence to support this element of the case.

2. NGEMC next contends that, as a matter of law, decedents assumed the risk of their injuries and were guilty of contributory negligence.

A plaintiff’s contributory negligence bars any recovery whatsoever if his failure to use ordinary care for his own safety is the sole proximate cause of his injuries, even though such negligence concurs with the negligence of the defendant. A plaintiff assumes the risk of his injuries and is likewise barred from any recovery if he (1) had actual knowledge of the danger, (2) understood and appreciated the risks, and (3) voluntarily exposed himself to that risk. “Except in plain, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached,” questions of contributory negligence and assumption of risk are for the jury.

NGEMC argues that contributory negligence and assumption of risk are not jury issues here, because as experienced linemen Bryant and Webb were aware of the risk of electric shock when working around high voltage electrical wires, participated in the decision that the recloser not be set to a one-shot lockout by NGEMC, and performed their work without protective equipment in violation of their employer’s safety rules. We find no merit in these contentions.

Decided October 6, 2000.

Kinney, Kemp, Sponcler, Joiner & Tharpe, Henry C. Tharpe, Jr., Crystal R. Haynes, for appellant.

Magill & Atkinson, Thomas E. Magill, Bobby Lee Cook, Lindsay H. Bennett, Jr., Hubert E. Hamilton III, Carlton H. Vines, for appellees.

There is conflicting evidence on whether decedents participated in their foreman’s decision not to request a one-shot lockout on the day of the accident, whether P & E had a safety rule in effect at the time of the accident requiring linemen to wear and use protective equipment when working on deenergized lines, and whether decedents were negligent in not using such equipment even in the absence of such a rule. These conflicts in the evidence distinguish cases relied on by NGEMC, such as Callaway v. Crown Crafts, Leonardson v. Ga. Power Co., and Brown v. Southern Bell Tel. &c. Co., where the evidence of plaintiffs’ contributory negligence and assumption of risk was undisputed.

For these reasons, whether decedents’ contributory negligence was the sole proximate cause of their injuries and whether they assumed the risk of their injuries are questions properly left to the jury.

Judgment affirmed.

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

       199 Ga. App. 309 (404 SE2d 463) (1991).

       (Citations and punctuation omitted.) Id. at 312.

       (Citations and punctuation omitted.) Id. at 311.

       See Schernekau v. McNabb, 220 Ga. App. 772, 773 (470 SE2d 296) (1996).

       See Ezor v. Thompson, 241 Ga. App. 275, 277 (1) (526 SE2d 609) (1999) (holding that the self-contradictory testimony rule set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), does not apply to expert testimony).

       See generally Jackson v. Post Properties, 236 Ga. App. 701 (513 SE2d 259) (1999).

        Leonardson v. Ga. Power Co., 210 Ga. App. 574, 576 (436 SE2d 690) (1993).

        Gaines v. Ingles Markets, 241 Ga. App. 302, 303 (1) (524 SE2d 766) (1999).

       (Citation and punctuation omitted.) Stegall v. Central Ga. Elec. Membership Corp., 221 Ga. App. 187, 190 (2) (470 SE2d 782) (1996).

       223 Ga. App. 297, 298 (2) (477 SE2d 435) (1996).

       Supra.

       209 Ga. App. 99, 100 (2) (432 SE2d 675) (1993).


text:
    A00A2066.
    FORD CLINIC, INC. v. POTTER.
    (540 SE2d 275)
   Johnson, Chief Judge.

William Potter III sued Ford Clinic, Inc. for alleged breach of an oral employment contract. Ford Clinic moved for summary judgment, which was denied by the trial court. We granted interlocutory review of the summary judgment denial. Because any alleged oral contract was either for two years and barred by the statute of frauds or for an indefinite period of time and terminable at will, we reverse the trial court’s order denying Ford Clinic’s motion for summary judgment.

On appeal of the grant of summary judgment, this court applies a de novo review of the evidence to determine whether any question of material fact exists. Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. A defendant meets this burden by “showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. . . . All of the other disputes of fact are rendered immaterial.”

The evidence in the present case shows that Ford Clinic hired Potter to practice medicine in his chosen field of gynecology. While Potter contends that the oral employment agreement “was for a period of two years with an annual salary to be paid Ihim] of $90,000.00 payable in 12 installments each year of $7,500.00 per month,” Ford Clinic contends that no employment agreement was prepared and Potter agreed to work as an “employee-at-will.” From the outset, Potter and Dr. William Ford, the owner of the Ford Clinic, disagreed about the hours Potter was to work. Ford contended that Potter was hired to work regular office hours in order to treat walk-in patients and to fill in as needed for obstetric services. Potter, however, refused to be at the clinic except for scheduled appointments. Other disputes arose between the parties. In addition, patients complained about how Potter treated them and his improper and suggestive comments. Potter admits that he was not generating the amount of income needed to justify his annual salary.

More than a year after Potter began working at the clinic, Ford presented him with a written employment agreement. This agreement stated that Potter would receive a percentage of the gross collected income that he generated. Potter refused to sign the agreement. He then refused to come to the office or to see patients. Although Ford took the position that Potter had quit his job, he wrote a letter to Potter withdrawing the contract offer and terminating his employment.

Potter sued Ford Clinic claiming that it had breached a two-year oral contract of employment with him and seeking the balance of the salary he allegedly was owed for the remaining year. Ford Clinic moved for summary judgment on the ground that the parties either had no employment contract or merely had an employment contract that was terminable at will. Alternatively, the clinic argued that to the extent the parties had a two-year oral contract, it was unenforceable under the statute of frauds. The trial court denied the motion, finding that the parties had a contract and that there were disputed issues of fact as to the terms of the contract. The court also held that the statute of frauds was inapplicable to defeat Potter’s claim, since “it is arguable that by establishing an annual salary payable in 12 installments, that the contract could be found to be for successive one year periods.”

The trial court erred in denying summary judgment. To the extent the parties had a contract, it was either for two years and barred by the statute of frauds or for an indefinite term and terminable at will. In either case, Potter does not have a cause of action against Ford Clinic.

In his deposition, Potter was asked to state the term of his employment, including the length of time he was going to work for Ford Clinic. He responded, “No term was mentioned.” He further responded that “there was no termination point” and admitted that there was no agreement regarding the length of time he was to be employed.

Georgia courts have consistently held that “[a]n employment contract containing no definite term of employment is terminable at the will of either party, and will not support a cause of action against the employer for wrongful termination.” An oral promise as to an employment contract for an indefinite period of time is not enforceable. To the extent that Potter’s alleged oral contract was for an indefinite term, it was terminable at will, and he has no cause of action against Ford Clinic.

In addition, if we accept Potter’s contention that the contract was for two years, Potter still has no cause of action against Ford Clinic. OCGA § 13-5-30 (5) provides,

To make the following obligations binding on the promisor, the promise must be in writing and signed by the party to be charged therewith or some person lawfully authorized by him: ... (5) Any agreement that is not to be performed within one year from the making thereof. . . .

An oral employment contract for a definite term not to be performed within one year is within the statute of frauds. Thus, if the contract is for two years, as maintained by Potter, his suit is barred. Although the statute of frauds does not apply where there has been such part performance of the contract “as would render it a fraud of the party refusing to comply if the court did not compel a performance,” the part performance required to obviate the statute of frauds must be substantial and essential to the contract. Thus, oral employment contracts for longer than one year are unenforceable unless there has been part performance that is consistent with the presence of a contract and inconsistent with the lack of a contract.

Decided October 6, 2000.

Eugene W. Harper, Jr., for appellant.

Charles R. Desiderio, for appellee.

As in Morgan, the activities performed by Potter as an employee of Ford Clinic — merely showing up for work when he had scheduled appointments — were not sufficient acts to establish part performance and remove this agreement from the statute of frauds because these activities are not inconsistent with employment terminable at will without an express contract.

In addition, although the trial court based its denial of summary judgment on the fact that “by establishing an annual salary payable in 12 installments, . . . the contract could be found to be for successive one year periods” and thus fall outside the statute of frauds, neither party actually makes this contention. Ford Clinic contends the oral agreement was terminable at will, and Potter contends the oral agreement was for a two-year period. In fact, in his appellate brief, Potter notes, “What other possible conclusion could be reached from this simple agree [sic] other than the parties intended that the employment relationship should continue for at least two years.”

Since the enforcement of Potter’s alleged oral employment contract with Ford Clinic is barred either by the statute of frauds or because any such agreement was terminable at will, no material issues of fact remain for trial. Accordingly, the trial court erred in denying summary judgment to Ford Clinic.

Judgment reversed.

Smith, P. J., and Phipps, J., concur.

        Moore v. Food Assoc., 210 Ga. App. 780 (437 SE2d 832) (1993).

       OCGA§ 9-11-56 (c).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       (Citations and punctuation omitted.) Dong v. Shepeard Community Blood Center, 240 Ga. App. 137, 138-139 (1) (522 SE2d 720) (1999); see also Schuck v. Blue Cross &c. of Ga., 244 Ga. App. 147, 148-149 (534 SE2d 533) (2000).

       See id.; Dong, supra; Marshall v. W. E. Marshall Co., 189 Ga. App. 510, 511 (1) (376 SE2d 393) (1988).

        Morgan v. American Ins. Managers, 239 Ga. App. 635, 637 (1) (521 SE2d 676) (1999).

       OCGA § 13-5-31 (3).

        Morgan, supra.

       Id.

       See Zager v. Brown, 242 Ga. App. 427, 430 (1) (530 SE2d 50) (2000); Morgan, supra; O’Neal v. Home Town Bank of Villa Rica, 237 Ga. App. 325, 328 (1) (514 SE2d 669) (1999).