text:
    A89A1629, A89A1630.
    A89A1631.
    COLEMAN et al. v. ATLANTA OBSTETRICS & GYNECOLOGY GROUP, P.A.; and vice versa. WATERS et al. v. ATLANTA OBSTETRICS & GYNECOLOGY GROUP, P.A.
    (390 SE2d 856)
   Pope, Judge.

Subsequent to an unfortunate series of events, plaintiff Jennifer Harper (now Jennifer Harper Coleman) suffered a debilitating stroke. On April 27, 1984 Mrs. Harper and her (then) husband plaintiff Barry Craig Harper, visited the office of defendant Atlanta Obstetrics & Gynecology Group, P.A. (hereinafter “Obstetrics Group”), and were seen by Dr. William L. Hutchinson. The couple reported that they wished to conceive a child but that Mrs. Harper was experiencing discomfort during intercourse and decreased interest in sexual relations. Dr. Hutchinson recommended a hormone injection and Mrs. Harper received an injection of Depo-Testadiol. Approximately one month later the couple returned to the doctor’s office and were seen by Dr. Frederick Christopher Bieling, another member of the Obstetrics Group. Dr. Bieling determined that Mrs. Harper was pregnant and that she had probably conceived before or about the time she received the hormone injection. Dr. Bieling informed the couple of the risk of birth defects to the unborn fetus due to exposure to the hormone plus the fact that Mrs. Harper had recently contracted a mild case of chicken pox and advised them to consider undergoing a therapeutic abortion.

On June 5, 1984, Dr. James L. Waters performed a surgical procedure on Mrs. Harper to abort the fetus and prescribed birth control pills. Although Dr. Waters received a laboratory report the following day indicating the tissue removed from Mrs. Harper did not contain the products of conception, Dr. Waters did not notify Mrs. Harper that the abortion had been unsuccessful. Instead, approximately one week after the procedure Mr. Harper notified Dr. Waters that his wife had become ill and had been diagnosed at the emergency room of the local hospital as having pelvic inflammation. A representative of Dr. Waters’ office recommended that she visit her regular gynecologist for treatment. On June 19, 1984, Dr. Bieling confirmed that Mrs. Harper was still pregnant and recommended a second procedure to complete the therapeutic abortion. Dr. Bieling performed the second abortion procedure at DeKalb General Hospital on the morning of July 6, 1984. That evening Mrs. Harper suffered a massive stroke which left her permanently partially impaired.

The evidence showed that Depo-Testadiol is recommended solely for use in treating the symptoms of menopause and its use for treating decreased libido in pre-menopausal women is experimental. Ample evidence was presented that Dr. Hutchinson’s administration of the drug to Mrs. Harper failed to meet the appropriate standard of care. It is undisputed that the administration of the drug was the primary reason for Mrs. Harper’s undergoing a therapeutic abortion. However, the Obstetrics Group defended Mrs. Harper’s claim for damages from the stroke on the ground that Dr. Hutchinson’s acts were not the proximate cause of the stroke but that the stroke was caused by the intervening acts of others plus Mrs. Harper’s pre-existing physical condition.

The evidence showed that Mrs. Harper periodically suffered migraine headaches and that she had a mild congenital defect of the heart known as ventricular septal defect, or a small hole between the chambers of her heart. According to plaintiffs’ expert witnesses, the stroke suffered by Mrs. Harper was caused either by vasospasm of the blood vessels in the brain or by the lodging of a blood clot in the brain. Migraine sufferers are at greater risk of vasospasm. Moreover, the hormone estrogen, contained in both the injection administered by Dr. Hutchinson and the birth control pills later prescribed by Dr. Waters, increases the risk of both vasospasm and blood clots. One of plaintiffs’ expert witnesses testified that if the stroke was caused by a blood clot, the clot was formed in the pelvic region as a result of the pelvic infection which developed after the first unsuccessful abortion procedure and broke off and traveled to the heart as a result of the manipulation of the pelvic area during the second abortion procedure. Once in the heart the blood clot passed through the defect in the ventricle to the other chamber of the heart and was then pumped to the brain. The evidence showed that because of the “half-life” of Depo-Testadiol in the body, estrogen from the injection given by Dr. Hutchinson was probably no longer a factor at the time of the stroke. Both of the expert witnesses presented by plaintiffs on the issue of causation of the stroke admitted that the hormone injection itself did not cause the stroke. Both witnesses testified it was the chain of other events and factors which resulted in the stroke. However, both witnesses testified it was the negligent administration of Depo-Testadiol which commenced the chain of events resulting in Mrs. Harper’s stroke.

The jury returned a verdict of $575,000 in favor of Mrs. Harper (Coleman) and $10,000 in favor of Mr. Harper, for loss of consortium, against defendants Dr. Waters and the Obstetrics Group as joint tortfeasors. The Obstetrics Group obtained a judgment notwithstanding the verdict on the ground the negligence of Dr. Hutchinson was too remote to be the proximate cause of Mrs. Harper’s stroke. Plaintiffs appeal the grant of judgment notwithstanding the verdict.

Case Nos. A89A1629 and A89A1631

1. The evidence clearly shows that Mrs. Harper’s pre-existing condition and the intervening acts of others contributed to her stroke. However, it was Dr. Hutchinson’s negligent administration of Depo-Testadiol which started the chain of intervening events which acted upon Mrs. Harper’s condition to result in the stroke.

“The rule that an intervening act may break the causal connection between an original act of negligence and injury to another is not applicable if the nature of such intervening act was such that it could have reasonably been anticipated or foreseen by the original wrongdoer. [Cit.] It is not necessary that an original wrongdoer shall anticipate or foresee the details of a possible injury that may result from his negligence. It is sufficient if he should anticipate from the nature and character of the negligent act committed by him that injury might result as a natural and reasonable consequence of his negligence. ‘In order that a party may be liable in negligence, it is not necessary that he should have contemplated or even been able to anticipate the particular consequences which ensued, or the precise injuries sustained by the plaintiff. It is sufficient, if, by exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected.’ [Cit.]” Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 696 (51 SE2d 705) (1949).

A negligent actor is liable not only for the injury caused by his own acts but is also liable for any additional harm resulting from the manner in which reasonably required medical services are rendered. See Restatement (2d) of Torts, § 457 (1965). A defendant may be liable not only for all damages resulting directly from his negligent act “but also for all damage resulting from the improper or unskillful treatment of the injuries by the physician.” Smith v. Hardy, 144 Ga. App. 168 (16) (240 SE2d 714) (1977). Here, a therapeutic abortion was reasonably required by Dr. Hutchinson’s negligent act of administering an injection of Depo-Testadiol to Mrs. Harper. Consequently, he was also liable for the damages resulting from the improper or unskillful treatment by the original surgeon including the complications resulting from the second procedure made necessary by the unskillful performance of the first procedure.

In regard to the testimony of Mrs. Harper’s pre-existing conditions, it has long been the rule that a tortfeasor takes a plaintiff in whatever condition he finds him. “A negligent actor must bear the risk that his liability will be increased by reason of the actual physical condition of the other toward whom his act in negligent.” Restatement (2d) of Torts, § 461, Comment a (1965).

As stated in those cases cited in the lower court order, a tortfeasor cannot be held liable “if there intervened between [the act] and the injury a distinct, successive, unrelated, efficient cause of the injury.” (Citations and punctuation omitted.) (Emphasis supplied.) Wanless v. Winner’s Corp., 177 Ga. App. 783, 785 (341 SE2d 250) (1986). Accord Cain v. Ga. Power Co., 53 Ga. App. 483 (186 SE 229) (1936). However, here the intervening causes which contributed to the injury were not unrelated to the act of Dr. Hutchinson but were reasonably required for medical treatment of Dr. Hutchinson’s unskillful treatment, and, in turn, reasonably required for the unskillful treatment rendered in response to Dr. Hutchinson’s treatment. In short, the injury was the result of malpractice in response to malpractice; nevertheless, the act of Dr. Hutchinson, agent of defendant Obstetrics Group, inexorably started the chain of events. “While the general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act.” (Citations and punctuation omitted.) Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 157-158 (256 SE2d 916) (1979). The trial court erred in granting the motion for judgment notwithstanding the verdict.

2. Because we hold that the motion was improperly granted for substantive reasons, we need not address plaintiffs’ remaining enumeration of error challenging the motion on procedural grounds.

Case No. A89A1630

3. Defendant Obstetrics Group filed a cross-appeal enumerating as error that, in the event the judgment notwithstanding the verdict is overturned on appeal, the trial court erred by submitting to the jury the issue of the recoverability of damages related to Mrs. Harper’s stroke. The “contingent” cross-appeal is unsupported by argument and citation of authorities. Moreover, for reasons outlined in the opinion above, the trial court did not err in submitting the issue of damages to the jury and therefore did not err in denying defendant’s motion for new trial.

Judgment reversed in Case Nos. A89A1629 and A89A1631. Judgment affirmed in Case No. A89A1630.

Banke, P. J., and Sognier, J., concur.

Decided January 16, 1990

Rehearings denied February 14, 1990

Wood & Grant, L. Lin Wood, Jr., Wayne Grant, for Coleman & Harper.

Love & Willingham, Daryll Love, Robert P. Monyak, for Atlanta Obstetrics.

Bennett, Williams & Henry, Benjamin S. Williams, for Waters.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    A89A2032.
    JACORE SYSTEMS, INC. v. CENTRAL MUTUAL INSURANCE COMPANY.
    (390 SE2d 876)
   Sognier, Judge.

Jacore Systems, Inc. brought suit against Central Mutual Insurance Company, contending that, because of its actions in a prior lawsuit filed by a third party against Jacore, its insured, Central Mutual was estopped from denying coverage to Jacore in a subsequent action involving similar issues. The parties filed cross-motions for summary judgment, and the trial court granted summary judgment to Central Mutual and denied Jacore’s motion. Jacore appeals.

At all times pertinent to this action, appellant, a supplier and. distributor of computer hardware and software, has been insured under a “Businessowners Policy” issued by appellee, which includes, inter alia, comprehensive business liability coverage for “bodily injury, property damage or personal injury caused by an occurrence,” with “occurrence” defined as “an accident. . . which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” The policy also covered the insured’s liability under any contract by which the insured had “expressly assumed liability for damages to which this policy applies, provided, that such liability shall not be construed as including liability under a warranty of the fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the insured will be done in a workmanlike manner.”

In June 1981, a customer brought suit against appellant in Cobb County Superior Court, alleging breach of a software licensing agreement, wilful misrepresentation, and negligent performance of contractual duties (the “Georgia suit”). Appellee defended appellant in the Georgia suit under a reservation of rights and paid a $3,000 settlement to the plaintiff. Appellant subsequently was named as the defendant in a lawsuit filed in federal district court in Alabama in November 1986, in which the plaintiffs alleged claims for breach of contract, fraud, misrepresentation, and deceit arising from a software supply contract (the “Alabama suit”). After appellant called upon appellee to defend the Alabama suit, the parties entered into a “Reservation of Rights and Non-waiver Agreement” whereby appellee would pay 50 percent of appellant’s litigation expenses incurred after May 1, 1987 but did not admit coverage and reserved its right to bring a declaratory judgment action or withdraw from participation in the defense upon notice to appellant. This agreement further provided that appellee was not waiving its right to assert that the policy did not cover the claim, that appellant contended appellee was estopped to deny coverage, and that the parties agreed this dispute over coverage would be resolved at a future date. The parties to the Alabama suit ultimately reached agreement on a settlement, which required appellant to pay a net amount of $563,000. When appellee refused appellant’s demand to pay the settlement sum, appellant filed this action.

1. Appellant enumerates as error the grant of summary judgment to appellee. Appellant does not contend that the policy covers the claims asserted in the Alabama suit. Condensed from appellant’s voluminous briefs, appellant’s argument is that, either (a) because the 1981 reservation of rights letter was insufficient; (b) because appellee did not also seek a declaratory judgment as to its coverage obligations in the Georgia suit; or (c) because appellee paid the settlement in the Georgia suit, appellee is now estopped to deny coverage in the Alabama suit, an action filed five years later and concerning an unrelated occurrence.

“ ‘[I]f a liability insurer, with knowledge of a ground of forfeiture or noncoverage under the policy, assumes and conducts the defense of an action brought against the insured, without disclaiming liability and giving notice of its reservation of rights, it is thereafter precluded in an action upon the policy from setting up such ground of forfeiture or noncoverage.’ [Cit.] ‘The general rule of estoppel is . . . limited by the principle that a liability insurer may avoid the operation of the rule by giving the insured timely notice that, notwithstanding its defense of the action against him, it has not waived the defenses available to it against the insured. Such notice, to be effective, must fairly inform the insured of the insurer’s position, and must be timely . . . .’ [Cit.]” State Farm &c. Ins. Co. v. Anderson, 104 Ga. App. 815, 818 (123 SE2d 191) (1961).

(a) In the case at bar, when appellee received from appellant copies of pleadings filed to date in the Georgia suit, appellee immediately responded with a letter in which it agreed to investigate the claim and consider whether to defend the action. However, in this letter appellee also stated that by such action appellee “does not waive any of its rights or admit any obligation under the policy,” and explained further that the reservation of rights was being made “because of the definition of contract under [appellant’s] policy” and its exclusion of certain product warranty claims. We find this letter sufficient to inform appellant of the basis for appellee’s reservations about coverage, see id. at 818-819, and further find that notice of reservation of rights was timely given in that appellee sent the letter as soon as it was notified of the Georgia suit. See Moody v. Penn. Millers Mut. Ins. Co., 152 Ga. App. 576, 577 (1) (263 SE2d 495) (1979). By not objecting to the reservation of rights letter and by permitting appellee to go forward with its defense of the suit, appellant is deemed to have consented to the letter’s terms. Anderson, supra at 818.

(b) Appellant cites Richmond v. Ga. Farm &c. Ins. Co., 140 Ga. App. 215 (231 SE2d 245) (1976) as authority for its contention that a reservation of rights letter is insufficient by itself to avoid waiver and that the insurer also must file a declaratory judgment action. In that case we held that “[a]n insurer may not give an insured a unilateral notice of reservation of rights and thereupon proceed with a complete defense of the main claim absent insured’s express or implied consent,” (emphasis supplied), id. at 219, so that if the insured refuses to consent to a reservation of rights, the insurer must give a unilateral notice and seek declaratory relief. Id. Here, however, appellant, unlike the insured in Richmond, did not object to the reservation of rights made by appellee and thus impliedly consented thereto. Anderson, supra at 818. Accordingly, appellee was not required to file a declaratory judgment action to avoid waiver and estoppel.

(c) Appellant has cited no authority, either Georgia or foreign, to support its proposition that an insurer’s payment of a settlement in a lawsuit defended under a reservation of rights constitutes a waiver of the insurer’s right to assert noncoverage in a subsequent lawsuit against the insured involving similar issues. Although as a general rule the doctrines of waiver and estoppel “ ‘are not available to bring within the coverage of a policy risks not covered by its terms, or risks expressly excluded therefrom,’ (cits.)” Sargent v. Allstate Ins. Co., 165 Ga. App. 863, 865 (303 SE2d 43) (1983), appellant contends that, because under some circumstances the defense of noncoverage may be waived, see Prescott’s Altama Datsun v. Monarch Ins. Co., 253 Ga. 317, 318 (319 SE2d 445) (1984), waiver and estoppel should be extended to instances in which the insurer pays a settlement in a prior action on similar issues. We do not agree. First, in Prescott’s the Supreme Court held that the defense of noncoverage, while not ordinarily subject to the doctrines of waiver and estoppel, “may be subject to the doctrine [s] where the insurer, without reserving its rights, assumes the defense of an action or continues such defense with knowledge, actual or constructive, of noncoverage, [cits.].” (Emphasis supplied.) Id. at 318. This limited exception is not applicable in the case at bar because appellee adequately reserved its rights to assert non-coverage. See id. at 318-319. Second, we decline to extend the doctrine to a lawsuit filed five years after the suit alleged as the basis for estoppel and involving a completely unrelated occurrence. See generally Browder v. Aetna Life Ins. Co., 126 Ga. App. 140, 142 (190 SE2d 110) (1972) (“the fact that ten years previously the insurance company had paid a similar claim where the [notice provisions of the policy were not followed] . . . cannot be relied upon as a blanket waiver of written notice in all future claims”); Globe &c. Ins. Co. v. Atlantic &c. Shipping Co., 51 Ga. App. 904 (2) (181 SE 310) (1935) (insurer’s payment of one claim did not estop it from asserting that another claim arising from the same occurrence was not covered by the policy). “The law favors the settlement of claims without litigation, and Courts should not favor rules which would penalize and punish, and place a premium on the action of an insurance company in settling a claim under a policy.” Globe, supra at 908. There being no basis for finding waiver and estoppel of appellee’s right to deny coverage in the Alabama suit, we affirm the grant of summary judgment to appellee. See Prescott’s, supra at 319.

Decided February 2, 1990

Rehearing denied February 14, 1990

Parker, Johnson, Cook & Dunlevie, Kirk W. Watkins, Everett W. Gee III, for appellant.

Long, Weinberg, Ansley & Wheeler, J. Kenneth Moorman, Robin L. Peek, for appellee.

2. Because of our ruling in Division 1, we also hold that the trial court properly denied appellant’s motion for summary judgment on the issue of waiver and estoppel.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Birdsong, Judge.

text:
    A89A2217.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. ASTRO LEASING, INC.
    (390 SE2d 885)
   Birdsong, Judge.

Appellant, State Farm Mutual Automobile Insurance Company (hereinafter State Farm Mutual), appeals the trial court’s order granting directed verdict to appellee Astro Leasing, Inc. et al. in a declaratory judgment action.

Appellee Richard Meagher (hereinafter Meagher) entered into a rental agreement with appellee Astro Leasing, Inc. d/b/a Budget Rent-A-Car of Athens, Georgia (hereinafter Astro). The rental contract listed additional drivers as “NONE.”

Astro was insured by Reliance Insurance Company under a policy which, with certain exceptions not here applicable, listed Astro and anyone else using an Astro automobile with Astro’s permission as “insured” under the terms of the policy. Moreover, the Astro policy contained an exclusion pertinently stating “This policy does not apply: (a) to the rentee while such auto is used or operated in violation of the terms and conditions of the rental agreement under which such auto is rented.” The rental agreement expressly provided that “Vehicle shall not be used or operated by any person: (a) Other than Renter or any Additional Driver who is shown on the other side and; has Renter’s prior permission.” The agreement further provided that “All of the benefits given to Renter and all of BUDGET’S obligations under this Agreement, including but not limited to insurance coverage, are void if Vehicle is used or operated in violation of this Agreement.”

Meagher is a named insured under a State Farm Mutual policy that provides for automobile liability coverage with bodily injury limits of $100,000 each person and $300,000 each accident, and property damage limits of $25,000.

Subsequently, Meagher gave his wife permission to drive the rental vehicle, and she was involved in a collision while driving it. Certain people are alleged to have been injured in this collision, and they have initiated suit. State Farm Mutual, while admitting its obligation at least as an excess insurer and its duty to defend Meagher, asserted that Astro’s insurer is the primary insurer under the terms of its policy with Astro. Astro contested any such obligation, and State Farm Mutual initiated a suit for declaratory judgment which is the. subject of this appeal. Reliance Insurance Company was not made a party to the declaratory judgment action. Held:

Appellant State Farm Mutual asserts that the trial court erred in dismissing its complaint for lack of standing because its action can be properly maintained under the declaratory judgment act.

The trial court in granting directed verdict for Astro, by implication concluded appellant has no standing to seek declaratory judgment, and based its ruling on Eberhardt v. Unigard Mut. Ins. Co., 142 Ga. App. 102 (235 SE2d 616) and Zurich Ins. Co. v. New Amsterdam Cas. Co., 117 Ga. App. 426 (160 SE2d 603). Appellee Astro further directs this court’s attention to United States Fidelity &c. Co. v. Watson, 106 Ga. App. 748 (128 SE2d 515) in support of the trial court’s ruling. Appellant State Farm Mutual, however, asserts that these cases were effectively overruled by the holding of the Supreme Court in Atlantic Wood Indus. v. Argonaut Ins. Co., 258 Ga. 800 (375 SE2d 221).

Atlantic Wood Indus, is distinguishable from the facts before us, as in that case declaratory judgment was brought by the insured to determine the obligation of the insurers to defend an action pending against the insured. The holding in Atlantic Wood Indus, was narrow in scope, establishing that “insureds should have the same opportunity as insurers to determine in advance the scope of policy provisions.” Id. at 801. In the case sub judice, declaratory judgment was sought by an insurer, not by an insured. Moreover, Atlantic Wood Indus, does not expressly overrule either of the cases relied upon by the trial court. By implication, Atlantic Wood Indus, overruled the holding of this court in United States Cas. Co. v. Ga. S. &c. R. Co., 95 Ga. App. 100 (97 SE2d 185) to the extent that the latter was in conflict with the holding that “insureds should have the same opportunity as insurers to determine in advance the scope of policy provisions.” See generally Atlantic Wood Indus., supra at 801. The limited scope of the Supreme Court’s ruling was further clarified by this court in the subsequent case of Atlantic Wood Indus. v. Argonaut Ins. Co., 190 Ga. App. 814 (380 SE2d 504), wherein we expressly held, “[s]uch decisions of this court as hold that declaratory relief is not available to an insured, including but not necessarily limited to United States Cas. Co. v. Ga. S &c. R. Co., supra, and Residential Dev., Inc. v. Merchants Indemn. Co., 122 Ga. App. 503 (177 SE2d 715) ... are hereby overruled and will no longer be followed.” Clearly, the intent of the Supreme Court, as interpreted by this court, was not to overrule these and any similar cases in toto, but only to the extent they conflicted with the specific holding that insureds should have the same opportunity as insurers to determine in advance the scope of policy provisions. While a decision may be overruled directly or impliedly, as by a refusal to apply it in subsequent cases, “[t]he overruling or reversal of one proposition of a decision does not argue unsoundness therein as to other separate and distinct propositions declared thereby.” 21 CJS, Courts, § 194. Accordingly, we find that Atlantic Wood Indus., supra, did not overrule Eberhardt, Zurich Ins. Co., or United States Fidelity &c. Co.

In United States Fidelity &c. Co., supra at 751, this court held that “where the only question at issue is whether the plaintiff is a primary insurer or only liable as an excess carrier, the petition [for declaratory judgment] shows no cause of action because it does not show that its action in the premises would jeopardize any of its rights. [Cit.] Whether it be a primary or excess carrier, its obligation to defend its insured is the same.” In Eberhardt, supra at 103, this court, citing National Surety Corp. v. Dunaway, 100 Ga. App. 842 (112 SE2d 331), held that “Allstate [the insurer initiating the declaratory judgment action] is obligated to defend the tort actions against [its insured], whether it is found to be a primary or merely an excess carrier.” Thus, the court, citing United States Fidelity &c. Co., supra, concluded that “[therefore no such immediacy of choice is imposed upon [the insurer Allstate] as to justify an action for declaratory judgment.” Eberhardt, supra at 103. Moreover, in Zurich Ins. Co., supra at 426 (3), it was held that “[a]n insurer with liability limited to excess coverage only, and which has retained the right by its policy provisions [as has been done in the case sub judice] to be subrogated to all the remedies of its insured, is not precluded by the fact that it defended its insured and paid off the judgment against it to claim indemnification from another [primary] insurer. . . .” Thus, State Farm Mutual will not be placed in a fundamentally unfair position merely by being denied the opportunity, by way of declaratory judgment, to obtain a ruling as to whether it is the primary or excess insurance carrier in this case.

Decided February 5, 1990

Rehearing denied February 14, 1990

Fortson, Bentley & Griffin, J. Edward Allen, Jr., James A. Bun-lap, Jr., for appellant.

Edward B. Buckley III, Bonzo C. Reddick, Blasingame, Burch, Garrand & Bryant, Andrew J. Hill III, for appellee.

We are satisfied, that the pertinent principle of law contained in Eberhardt, Zurich Ins. Co., and United States Fidelity &c. Co. is controlling in view of the facts in the case sub judice. Under the doctrine of stare decisis “ ‘when [a] court has . . . laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same.’ ” Norris v. Atlanta &c. R. Co., 254 Ga. 684, 686 (333 SE2d 835). “Stability and certainty in law are desirable; stare decisis is a valid and compelling basis of argument.” Hall v. Hopper, 234 Ga. 625, 631 (216 SE2d 839). We are mindful that in certain instances “stability must give way to justice” (Hall, supra at 632; Leggett v. Benton Bros. &c. Co., 138 Ga. App. 761, 764 (227 SE2d 397)); however, this is not such a case. Accordingly, we find no basis for abandoning the applicable legal precedent found in Eberhardt, Zurich Ins. Co., and United States Fidelity &c. Co., and conclude that the trial court did not err as alleged.

In view of this holding, we need not address appellant’s remaining enumerations of error.

Judgment affirmed.

Carley, C. J., and Been, P. J., concur.


author: Banke, Presiding Judge.

text:
    A89A2274.
    ORAN v. CANADA LIFE ASSURANCE COMPANY.
    (390 SE2d 879)
   Banke, Presiding Judge.

Acting on his own behalf and as a partner of Cobb Medical Center Partners, Ltd., Dr. Erdogan Oran brought this action against the Canada Life Assurance Company seeking the return of a $37,000 “standby” (or commitment) fee which had been paid to Canada Life in return for a loan commitment. He brings this appeal from an order awarding summary judgment to Canada Life.

The commitment was for a $1,850,000 permanent financing loan on a medical office building developed by Cobb Medical Center Partners (“CMCP”). Under the terms of the written agreement between the parties, the borrower was required upon acceptance of the commitment to pay a 2 percent fee, which was to be refunded “upon the satisfactory delivery of the loan.” However, the agreement specified that “if upon the expiry of the commitment, the loan has not been delivered and the commitment not extended, the 2 percent fee shall become the property of the lender as payment on account of liquidated damages which the lender estimates it will suffer as a result of such non-delivery of the loan.”

The commitment expired by its terms on September 18, 1986. Ten days earlier, CMCP’s attorney wrote Canada Life’s attorney a letter listing certain “tasks prerequisite to closing” which had not yet been completed. Among these was the procurement of a lender’s title policy which, the letter stated, was expected to be “forthcoming during the day.” The letter also made reference to an unresolved claim being asserted against the appellant and CMCP by the project’s construction lender for approximately $300,000 in attorney fees and back interest. Canada Life was asked to “acknowledge and approve the subordination of [this] approximately $300,000 in additional claims” by the construction lender, so as to permit compliance with a court order directing “that such claims be secured by the property until such time as resolved before the court.”

The construction lender was pursuing the claims in question as counterclaims in a suit filed against it and the project’s contractor by the appellant and CMCP. The complaint in that action alleged that the office building “was not of good quality, is not free from faults and defects, is not in substantial conformance with the contract documents and is defective.” In an affidavit executed on August 28, 1986, in support of an application for a temporary restraining order to prevent the construction lender from foreclosing on the construction loan, the appellant testified that “[t]he building remains deficient, and in desperate need of repair, renovation and rehabilitation.” In a subsequent affidavit, he added that “at least one tenant ha[d] vacated the project” due to the construction defects and that “at least one tenant ha[d] refused to move into the project by reason of the fact that the building was not substantially complete on its stipulated completion date.”

Among the documents which Canada Life would have required at closing were a letter certifying that the project had been completed in accordance with the plans and specifications, an affidavit certifying that there was no pending litigation concerning the office building and an affidavit certifying that no mechanic’s liens (which were admittedly in place) existed. As previously indicated, the appellant was also required under the terms of the commitment agreement to obtain a title insurance policy on the property prior to the closing date; and there appears to be no question that this condition was not satisfied. Held:

1. The evidence of record establishes without dispute that the appellant was unable to fulfill the conditions precedent for closing the loan prior to the scheduled expiration of the commitment. It follows that the appellee was entitled under the terms of the commitment agreement to retain the $37,000 commitment fee.

2. The appellant contends that the provision authorizing the appellee to retain the commitment fee in the event the loan was not closed constituted an unenforceable penalty provision rather than an enforceable liquidated damages provision. We disagree.

In the seminal case of Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1970), the Supreme Court held that the enforceability of a contractual liquidated damages provision is to be determined by the following “tripartite inquiry”: “ ‘First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-estimate of the probable loss.’ ” The Court further stated in that case that “whether a provision represents liquidated damages or a penalty does not depend upon the label the parties place on the payment but rather depends on the effect it was intended to have and whether it was reasonable.” Id. at 228. However, in the recent case of Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222) (1989), the Court appears to have abandoned the latter ruling and to have held that the label the parties place on the payment is controlling on the issue of their intention.

Liberty Life involved a suit by the prospective purchaser under a real estate sale contract to recover a 10 percent earnest money deposit which, like the commitment fee in the present case, amounted to $37,000. The trial court awarded summary judgment to the defendant-seller on the basis of a contractual provision specifying that this deposit would be “forfeited as full liquidated damages to the seller” in the event the purchaser elected not to close the sale. It was apparent without dispute in that case, as it is in the present case, that the first prong of the Southeastern Land test was satisfied, i.e., the injury caused by the breach was “difficult or impossible of accurate estimation.” However, this court reversed the trial court’s grant of summary judgment to the defendant based on the latter’s failure, as movant, to produce evidence tending to show that the $37,000 payment represented a reasonable pre-estimate of “the amount of the loss the [seller] might reasonably be expected to suffer in the event of a breach of the contract by the [purchaser].” Thomas B. Hartley Constr. Co. v. Liberty Life Ins. Co., 187 Ga. App. 849, 850 (371 SE2d 657) (1988). Indeed, the only evidence in that case going to the amount of the seller’s actual loss consisted of testimony that within five months after the scheduled closing date the defendant had sold the property in question for $92,000 more than the plaintiff had contracted to pay for it.

The Supreme Court granted certiorari and reversed, concluding that there was “no question the parties intended to provide for liquidated damages [where] the damages clause was denominated as liquidated by the parties . . . ,” and further concluding, without explanation, that “the damages were a reasonable pre-estimate of the probable loss.” Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., supra at 809. We interpret this holding to mean that a provision in a real estate sale contract authorizing the seller to retain the purchaser’s earnest money deposit in the amount of 10 percent of the sale price as liquidated damages in the event of a breach by the purchaser is reasonable and enforceable as a matter of law. That being so, it would appear to follow that a contractual provision appearing in a loan commitment agreement authorizing the lender to retain a commitment fee in the amount of 2 percent of the loan as liquidated damages for the borrower’s failure to close is similarly reasonable and enforceable as a matter of law. If, however, an evidentiary basis for a determination of reasonableness is needed in the present case, we note that the appellee provided one by submitting an affidavit stating that, due to a decline in market interest rates during the period before and after the expiration of the commitment, it suffered actual losses in excess of $60,000 as a result of the appellant’s failure to satisfy the conditions for closing the loan. While the appellant maintains that he controverted this evidence by showing that he paid a higher interest rate for the alternate permanent financing which he ultimately obtained in December of 1986 than that which the appellee had agreed to charge, we do not consider that fact to be necessarily inconsistent with the averments contained in the appellee’s affidavit. For these reasons, we hold that the trial court did not err in granting the appellee’s motion for summary judgment.

3. The appellant contends that the trial court erred in awarding attorney fees and expenses of litigation to the appellee. The award was entered by the court sua sponte pursuant to OCGA § 9-15-14, after the appellant had already filed his notice of appeal, and was based on its conclusion that “[t]he claim of [appellant] against Canada Life Assurance Company [was] utterly without merit and lacked substantial justification.” Pursuant to OCGA § 5-6-35 (a) (10), “[ajppeals from awards of attorney’s fees or expenses of litigation under Code Section 9-15-14” are subject to the application procedures set forth in OCGA §§ 5-6-35 (b-i). As the appellant failed to follow those procedures, this enumeration of error presents nothing for review.

Decided February 2, 1990

Rehearing denied February 14, 1990

Sexton, Turner & Moody, Lee Sexton, for appellant.

Hansell & Post, Jule W. Felton, Jr., for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A2305.
    FAULK v. LATHAM.
    (391 SE2d 7)
   Banke, Presiding Judge.

The appellee, acting as administratrix of the estate of Gussie B. Harrison, filed a complaint for interpleader in the Superior Court of Toombs County in an effort to determine her responsibility regarding disbursement of certain funds contained in a money market account left by the deceased. The appellant answered and filed a counterclaim alleging he is entitled to the funds, based on a purported oral agreement by the deceased to make a will in favor of Roy Russell, of whom he (the appellant) is the sole legatee. The appellant also sought an accounting, based on allegations that the deceased, and later the appellee, had failed to maintain the funds in accordance with the terms of this alleged agreement.

Relying on Adams v. Dixon, 19 Ga. 513 (1855), and Campbell v. Trust Co. of Ga., 197 Ga. 37, 46 (28 SE2d 471) (1943), the trial court dismissed the interpleader action on the ground that the appellee, as administratrix, held an interest in the property of the estate and accordingly was not a disinterested stakeholder. The correctness of this ruling is not at issue in this appeal. Rather, we granted an application for interlocutory appeal filed by the appellant to address his contention that the trial court erred in granting the appellee’s subsequent motion to transfer the counterclaim to the county of her residence (Baldwin County), based on its determination that the interpleader action could not be maintained. Held:

Where a plaintiff sues in a county other than the county of his residence, he “submits himself, to the extent of such suit, to the equity jurisdiction of the county wherein the suit is brought. But this waiver of jurisdiction extends only to matters included in the pending litigation, and ordinarily a person not a party to that action cannot take advantage of such waiver.” Chamblee Constr. Co. v. Pickett, 227 Ga. 421, 422-423 (181 SE2d 32) (1971). Moreover, “the defendant generally has been allowed to assert only such affirmative relief against a nonresident plaintiff as is necessary for the defense of the main complaint.” Ledford v. Bowers, 248 Ga. 804, 806 (2) (c) (286 SE2d 293) (1982).

Decided February 2, 1990

Rehearing denied February 14, 1990.

Bouhan, Williams & Levy, M. Brice Ladson, Peter D. Muller, for appellant.

Dickens & Associates, G. L. Dickens, Jr., for appellee.

The counterclaim brought by the appellant seeks a determination as to who is entitled to the deceased’s assets, which is the very issue the appellee sought to have adjudicated in bringing the interpleader action. Accordingly, we hold that the trial court incorrectly determined that the interpleader action and the counterclaim were not “sufficiently related so as to result in the waiver of the constitutional provisions concerning venue.” See Bragg v. Gavin, 234 Ga. 70 (214 SE2d 532) (1975).

Judgment reversed.

Sognier and Pope, JJ., concur.


text:
    A90A0130, A90A0131.
    BURBRIDGE v. HENSLEY; and vice versa.
    (391 SE2d 5)
   Sognier, Judge.

Pursuant to the procedures of the Columbia County Civil Service Commission (the “Commission”), Carolyn Burbridge filed a grievance with the Columbia County Grievance Committee (the “Committee”) protesting her termination from employment with the Columbia County Sheriff’s Department. The Committee found that Burbridge should be reinstated with pay, and the Commission affirmed the Committee’s decision. Upon the refusal of Otis Hensley, the Sheriff of Columbia County, to reinstate her, Burbridge filed this action in superior court against Hensley individually and in his official capacity, seeking reinstatement and back pay. Hensley filed a motion for summary judgment, which was granted, and Burbridge appeals. Hensley cross-appeals from the trial court’s refusal to declare unconstitutional the provisions of OCGA § 36-1-21, which provides for the establishment of county civil service systems.

1. In case no. A90A0130, Burbridge (hereinafter appellant) contends the trial court erred by granting summary judgment to Hensley (hereinafter appellee). The trial court granted summary judgment to appellee on the ground that the procedure used by the governing authority of the county to bring the Sheriffs Department under the Civil Service Commission’s jurisdiction was defective in several respects, and that therefore the Civil Service Commission exercised no jurisdiction over employees of the Sheriff’s Department. We agree and affirm.

Pursuant to Art. IX, Sec. I, Par. IV of the 1983 Georgia Constitution, the legislature enacted OCGA § 36-1-21, which provides, in pertinent part, as follows: “(a) The governing authority of any county is authorized to provide by ordinance or resolution for the creation of a civil service system for employees of the county, other than elected officials or persons appointed to positions for specified terms, (b) Subsequent to the creation of a civil service system, the county governing authority which created the system may provide by ordinance or resolution that positions of employment within departments subject to the jurisdiction of elected county officers or subject to the jurisdiction of other commissions, boards, or bodies of the county shall be subject to and covered by the civil service system upon the written application of the elected county officer, commission, board, or body having the power of appointment, employment, or removal of employees of the officer, department, commission, board, or body. Once positions of employment are made subject to the civil service system, such positions shall not be removed thereafter from the coverage of the civil service system.”

“ ‘[Statutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation. (Cit.)’ [Cit.]” Georgia Turkey Farms v. Hardigree, 187 Ga. App. 200, 202-203 (369 SE2d 803) (1988). Contrary to appellant’s argument, the most obvious meaning of the quoted sections of OCGA § 36-1-21 is the trial court’s construction: after the governing body of a county has authorized, by ordinance or resolution, the creation of a civil service commission to cover county employees other than elected officials or persons appointed for a definite term, it may by subsequent ordinance or resolution provide that employees of the departments of elected officials or other county bodies may, by written application of the elected official or other department head, seek to be brought under the civil service commission as well.

The record reveals that although in 1986 Columbia County lawfully enacted an ordinance creating a civil service commission pursuant to the provisions of OCGA § 36-1-21 (a), that ordinance did not apply to employees of departments headed by elected officials, such as the sheriff. At no time before April 28, 1987, when the interim appointed sheriff of Columbia County attempted, by letter to the county clerk, to have his employees covered by the provisions of the civil service ordinance, did the county enact a second ordinance or resolution pursuant to OCGA § 36-1-21 (b) providing that employees of elected officials could be made subject to the civil service system by written application of the elected official. Under the plain meaning of OCGA § 36-1-21 (b), until the enactment of such an enabling ordinance, no elected official was authorized to make application to bring his department under the civil service system, and the attempt of the interim sheriff to do so here was invalid. We must conclude, therefore, that because the sheriff’s department was not subject to the procedures of the civil service system in Columbia County and the sheriff was not bound by the Commission’s direction to reinstate appellant, the trial court did not err by entering summary judgment in favor of appellee.

Decided January 30, 1990

Rehearing denied February 14, 1990

E. Ronald Garnett, for appellant.

N. Kenneth Daniel, for appellee.

2. Because we affirm the trial court’s grant of summary judgment to appellee, we need not reach the issue of the constitutionality of OCGA § 36-1-21, raised in the cross-appeal, which is accordingly dismissed.

Judgment affirmed in case no. A90A0130; appeal dismissed in case no. A90A0131.

Carley, C. J., and McMurray, P. J., concur.


author: Deen, Presiding Judge.

text:
    A90A0258.
    HOLLOWAY v. THE STATE.
    (391 SE2d 123)
   Deen, Presiding Judge.

The appellant, Ulysses Holloway, was convicted of obstruction of a correctional officer. When Holloway became aggressive as he was being escorted by correctional officers to the prison hospital ward, the officers decided to return him to his cell. After one correctional officer removed the handcuffs on Holloway so that a strip search could be conducted, Holloway swung at and missed another officer, but struck a third officer. Several officers then physically subdued Holloway. At trial Holloway testified that he struck the correctional officer only because the latter had struck him first.

Decided January 24, 1990

Rehearing denied February 14, 1990.

Joel E. Williams, Jr., for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

Holloway’s sole contention on appeal is that the evidence is insufficient to support the conviction. However, when viewed in the light most favorable to the verdict, the evidence certainly authorized a rational trier of fact to find Holloway guilty beyond a reasonable doubt as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0270.
    THOMPSON v. GENERAL MOTORS ACCEPTANCE CORPORATION.
    (391 SE2d 2)
   Deen, Presiding Judge.

The appellant, Alice Thompson, commenced this conversion action against the appellee, following the latter’s resale of a vehicle leased by Thompson from the appellee. The appellee had recovered the vehicle when the Drug Enforcement Agency seized the car during a drug purchase from another individual who had borrowed the car from Thompson. The appellee counterclaimed for a deficiency judgment.

The trial court’s order granting summary judgment for the appellee on both Thompson’s complaint and the appellee’s counterclaim was entered on April 3, 1989. Thompson subsequently filed her own motion for summary judgment on April 5, 1989, and the next day filed a motion to vacate the order granting summary judgment for the appellee. On May 16, 1989, the trial court denied Thompson’s motion for summary judgment and upheld its grant of summary judgment for the appellee. On June 9, 1989, Thompson filed her notice of appeal from the trial court’s orders of April 3, 1989, and May 16, 1989. Held:

In order for this court to have jurisdiction over a case, the notice of appeal must be filed within 30 days of the judgment appealed from, unless an extension has been granted. OCGA §§ 5-6-38; 5-6-39. What Thompson really is appealing in this case is the grant of summary judgment for the appellee. Thompson’s own motion for summary judgment filed after the grant of summary judgment for the appellee was too late. Ellington v. Tolar Constr. Co., 142 Ga. App. 218, 221 (235 SE2d 729) (1977). Thompson’s motion to vacate the grant of summary judgment for the appellee did nothing to extend the deadline for filing a notice of appeal from that order. Perryman v. Ga. Power Co., 180 Ga. App. 259 (348 SE2d 762) (1986); cf. Forrester v. Ladwig, 247 Ga. 426 (276 SE2d 613) (1981). The order granting summary judgment for the appellee having been filed on April 3, 1989, and Thompson’s notice of appeal having been filed on June 9, 1989, the notice of appeal is untimely.

Decided January 24, 1990

Rehearing denied February 14, 1990

Herbert P. Schlanger, for appellant.

Virginia A. Bonner, for appellee.

Appeal dismissed.

Pope and Beasley, JJ., concur.


author: Carley, Chief Judge.

text:
    77894.
    HOWE v. ROBERTS et al.
    (392 SE2d 577)
   Carley, Chief Judge.

Appellant-plaintiff filed a breach of warranty suit in magistrate court. The suit was filed against appellee-defendant William Douglas Roberts, who is the president of appellee-defendant William Douglas Roberts & Associates, Inc. (Corporation). After the statute of limitation had run, appellant amended his pleadings to add the Corporation as a party-defendant to the proceedings. The magistrate court ultimately found in favor of appellant as against the Corporation, but it dismissed the action as against Roberts. After a de novo appeal to the state court, appellees filed a Yost counterclaim for abusive litigation. The state court granted summary judgment in favor of appellees as to appellant’s breach of warranty claim and denied appellant’s motion to dismiss the Yosú counterclaim. In Howe v. Roberts, 191 Ga. App. 143 (381 SE2d 117) (1989), we affirmed these rulings.

On certiorari, the Supreme Court reversed our affirmance of the grant of summary judgment in favor of the Corporation and affirmed our affirmance of the denial of appellant’s motion to dismiss the Yost counterclaim. Howe v. Roberts, 259 Ga. 617 (385 SE2d 276) (1989). Therefore, our judgment is vacated and the decision of the Supreme Court is adopted as the judgment of this court. The grant of summary judgment in favor of the Corporation is reversed. The grant of summary judgment in favor of Roberts is unaffected by the Supreme Court’s decision and we adhere to our original affirmance of that ruling. The denial of appellant’s motion to dismiss the Yost counterclaim is affirmed.

Decided February 14, 1990.

Lawson & Davis, Lela L. Smith, for appellant.

William R. L. Watson, for appellees.

Judgment affirmed in part and reversed in part.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope, Beasley and Cooper, JJ., concur.


author: Cooper, Judge.

text:
    A89A1848.
    RICE v. CIBA VISION CARE et al.
    (391 SE2d 30)
   Cooper, Judge.

On January 30, 1986, appellant/claimant injured his back while working for appellee/employer. Appellant received medical treatment from several physicians listed on the panel of physicians provided by appellee, and was released from treatment to return to work on February 24, 1986, at which time his benefits were suspended. Upon returning to work, appellant, unable to perform his job because of pain in his back, sought medical treatment from Dr. William Cabot, a physician not on the panel of physicians provided by appellee. Although appellant’s request for a change of physicians to Dr. Cabot was denied, appellant continued to incur expenses for treatment rendered by Dr. Cabot, and was released by Dr. Cabot to return to work on November 17, 1986.

Appellee controverted appellant’s claim, which was based on a change in condition, for expenses associated with medical treatment rendered by Dr. Cabot. The ALJ entered an award directing appellee to pay weekly benefits to appellant through November 17, 1986, all medical expenses relating to treatment by Dr. Cabot and, finding that the employer’s defense was unreasonable, directed appellee to pay attorney fees as a penalty. The full board, finding that the medical treatment rendered by Dr. Cabot was unauthorized and that the employer’s defense was reasonable, reversed the award of the ALJ by striking the award of medical expenses for treatment by Dr. Cabot and the award of attorney fees. The Superior Court affirmed the award of the full board, and we granted appellant’s application for a discretionary appeal.

1. Appellant’s first enumeration of error is that the trial court erred in affirming the full board’s award because the full board reversed the award of the ALJ without entering its own findings of fact. “An appeal to the full board from the action of [an ALJ] invokes a de novo proceeding in the matter which must result in the full board’s own findings of fact and award.” Gatrell v. Employers Mut. Liab. Ins. Co., 121 Ga. App. 467 (1) (174 SE2d 237) (1970). If on appeal to the full board the parties do not introduce any additional evidence, the full board may adopt the ALJ’s findings of fact as its own, or it may make independent, additional, or different findings. Gatrell v. Employers Mut. Liab. Ins. Co., supra. Based on the evidence, the ALJ entered findings of fact and conclusions of law. The award of the full board states: “Upon de novo review of all evidence, the Board makes the findings and conclusions of the administrative law judge its findings and conclusions, except as inconsistent with the following.” The board went on to make three additional and different findings and conclusions than those made by the ALJ. We find no authority for appellant’s argument that the full board must enter its own findings of fact when reversing an award of the ALJ, and have found cases where the full board articulated the same facts as the ALJ while reaching a different result. See Henderson v. Mrs. Smith’s Frozen Foods, 182 Ga. App. 829 (2) (357 SE2d 271) (1987); Carter v. Kansas City Fire &c. Ins. Co., 138 Ga. App. 601 (226 SE2d 755) (1976). Although there was evidence to support the finding of the ALJ, there was also evidence to support the findings of the full board. The findings of the full board supersede the findings of the ALJ. Liberty Mut. Ins. Co. v. Williams, 129 Ga. App. 354 (3) (199 SE2d 673) (1973). We conclude that the findings of the full board were sufficient to inform appellant of the board’s disposition of the issues, enabling appellant to intelligently prepare his appeal. West Point Pepperell v. Adams, 152 Ga. App. 3 (1) (262 SE2d 212) (1979).

Decided February 14, 1990.

Repasky, Minin & Bates, Alexander J. Repasky, Michael R. Goldberg, for appellant.

Drew, Eckl & Farnham, John C. Bruffey, Jr., Gary R. Hurst, for appellees.

2. In his second and third enumerations of error, appellant contends that the trial court erred in affirming the full board’s award because it was procured by fraud. Inasmuch as a review of the entire record reveals no evidence which supports appellant’s contention, we find that the trial court correctly applied the “any evidence” rule to this case. Johnson v. Northside Hosp., 192 Ga. App. 316 (385 SE2d 14) (1989).

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A1955.
    BROWN et al. v. DEPARTMENT OF TRANSPORTATION.
    (391 SE2d 32)
   McMurray, Presiding Judge.

Dissatisfied with the verdict and judgment in this eminent domain proceeding, condemnees appealed. Held:

1. Condemnees contend (1) the trial court improperly commented upon the evidence upon numerous occasions in violation of OCGA § 9-10-7 and (2) improperly inserted an irrelevant matter into the case by interrupting a witness to ask a question about the taxability of a condemnation award. We cannot consider this contention because no objection along these lines was raised during trial. Pulliam v. State, 196 Ga. 782, 789-791 (6) (28 SE2d 139); Mitchell v. Gay, 111 Ga. App. 867, 874 (8) (143 SE2d 568); Freedman v. Housing Auth. of Atlanta, 108 Ga. App. 418 (la) (136 SE2d 544). Enumerations of Error Nos. 2 and 5 are without merit.

2. We need not consider the enumeration of error which complains that the trial court failed to properly charge the jury on business loss damages. Condemnees did not object to the charge on that ground and thereby waived appellate consideration of the trial court’s business loss charge. Department of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 543 (2) (309 SE2d 816).

Likewise, condemnees did not object when, during colloquy, the trial court defined the term “unique” as “one-of-a-kind.” In fact, counsel for condemnees agreed with the court’s off-the-cuff definition. Thus, condemnees will not now be permitted to complain that the trial court’s definition of the term “unique” was incomplete. “A party cannot ignore during a trial that which he thinks to be error or an injustice and take his chances on a favorable verdict and then complain later. [Cits.]” Simmons v. Edge, 155 Ga. App. 6, 8 (270 SE2d 457).

Finally, we will not hear condemnees complain that the trial court refused to permit condemnees’ expert to refer to the property in question as “unique.” Whether the property was “unique” was a question to be decided by the jury. Department of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314, 315 (265 SE2d 10). Besides, the expert was permitted to use words and phrases which conveyed, essentially, the same concept as the word “unique.” Thus, condemnees were able to elicit the testimony which they desired and we find no error. Jackson v. Dept. of Transp., 159 Ga. App. 130, 134 (5) (283 SE2d 59). Enumerations of Error Nos. 3 and 4 are without merit.

3. In their sixth enumeration of error, condemnees assert the trial court erred in charging the jury that the testimony of a party is to be construed against him. In this regard, condemnees argue that the charge is inapplicable unless the party offers himself as a witness and, they insist, one of the condemnees, George R. Brown, did not offer himself as a witness — on the contrary, he was called as a witness by the condemnor for rebuttal. (Another condemnee, however, Antoine J. Saraf, did offer himself as a witness.) We will not address this argument because it was not raised in the trial court. Rather, in their objection to the charge, condemnees simply argued that the charge was directed solely at them because the condemnor did not call a party to testify on its own behalf. “Review of a charge on appeal is limited strictly to the grounds of objection stated at the trial. [Cit.]” Reubar Corp. v. Marthaler, 180 Ga. App. 559, 560 (1) (349 SE2d 795).

Decided February 14, 1990.

Peek & Whaley, J. Corbett Peek, Jr., James Garland Peek, for appellants.

Howell & Whiting, James S. S. Howell, John C. Whiting, for appellee.

4. Condemnees assert the trial court erred in refusing to charge the jury that “the mere fact that it might have been possible to relocate the facilities of the Old South Bottle Shop, Inc., on other property is wholly insufficient to establish or prove that the condemnee, Old South Bottle Shop, could in fact have minimized its damages by any such course of conduct.” We find no error in the refusal to give the requested charge because it was not adjusted to the evidence in this case. In the case sub judice, unlike State Hwy. Dept. v. Thomas, 115 Ga. App. 372, 379 (4) (154 SE2d 812), from which the requested charge was derived, there was an affirmative showing (not mere speculation) that condemnees could have leased other land for the purpose of relocating their business. The seventh enumeration of error is without merit.

5. The trial court did not err in denying condemnees’ motion for a new trial. Enumeration of Error No. 1 is not meritorious.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A2290.
    GRAYSON & HOLLINGSWORTH, INC. v. C. HENNING STUDIOS, INC.
    (391 SE2d 8)
   Banke, Presiding Judge.

The appellee, C. Henning Studios, Inc., sued the appellant, Gray-son & Hollingsworth, Inc., a Texas corporation, seeking to recover damages for breach of contract. Copies of the complaint and summons were duly served upon Ronald Grayson, the appellant’s registered agent for service in Georgia, on September 27, 1988. On or about October 25, 1988, the appellant attempted to file in the United States District Court for the Northern District of Georgia a “petition for removal of civil action.” However, the petition was returned due to the appellant’s failure to submit certified funds for the filing and bond fees required by that court.

Although the appellant was notified by the federal court that its removal petition had been rejected for filing well within the 15-day grace period provided by OCGA § 9-11-55 (a) for opening a default, it is undisputed that it allowed this period to expire without filing defensive pleadings in the present action. On December 7, 1988, the appellees filed a “motion for default judgment upon liquidated damages,” and on January 18, 1989, the appellant filed a “motion to open default” pursuant to OCGA § 9-11-55 (b), accompanied by an unverified answer. The motion was based in part on the affidavit of Dennis Engler, the appellant’s Texas attorney, who acknowledged that the appellant’s removal petition had been returned to him by the federal court unfiled but offered no explanation for the appellant’s failure to cure its default in the present action within the 15-day grace period. Following a hearing, the trial court denied the appellant’s motion to open the default and entered judgment against it in the amount of $28,640. Held:

The appellant argues that the trial court abused its discretion in refusing to open the default, asserting it had alleged meritorious defenses and had presented a valid case of excusable neglect. We disagree.

Under OCGA § 9-11-55 (b), “a prejudgment default [may] be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. [Cits.]” Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400, 401 (314 SE2d 199) (1984). (Emphasis supplied.) “This court has previously held that the ‘showing’ required by this Code section to be made ‘under oath’ includes the showing of a ‘meritorious defense.’ ” Ragan v. Smith, 188 Ga. App. 770, 772 (374 SE2d 559) (1988). Generally, the opening of a default rests within the sound discretion of the trial court. U. S. Elevator Corp. v. Smyrna Hosp., 182 Ga. App. 886 (3) (357 SE2d 322) (1987). However, compliance with the four conditions “is a condition precedent; in its absence, the trial judge had no discretion to open the default.” Global Assoc. v. Pan American Communications, 163 Ga. App. 274, 275 (1) (b) (293 SE2d 481) (1982).

While the affidavit submitted by the appellant’s counsel in support of his motion to open the default in the present case set forth reasons for his failure to file a timely answer to the complaint, it did not disclose the nature of the appellant’s defenses, and the answer which was submitted with the motion was not verified. The appellant argues, in reliance on Division 3 of Ragan v. Smith, supra, 188 Ga. App. at 772-3, that these deficiencies should not be considered fatal. In that case, we held that the trial court did not abuse its discretion in opening the default even though the defendant had failed to set forth a meritorious defense “under oath,” where the relevant facts supporting the defense set forth in the answer had effectively been stipulated to by the parties and where, though the complaint dealt only with a small amount of indebtedness, the default affected the defendant’s ability to assert a comparatively large counterclaim. No such circumstances exist in the present case. Moreover, the appellant in this case offered no explanation whatever for its failure to open the default during the 15-day period in which it could have done so as a matter of right. We accordingly hold that the trial court did not err in denying the appellant’s motion to open the default and in entering judgment against it based on the default.

Decided February 2, 1990

Rehearing denied February 15, 1990

Beltran & Buckley, Frank J. Beltran, William H. Buckley, for appellant.

Kevin L. Ward, W. Scott Schulten, Mark S. Izenson, for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1647.
    MILLER v. THE STATE.
    (390 SE2d 901)
   Cooper, Judge.

Appellant was convicted by a jury of rape and burglary, and appeals the denial of his motion for new trial.

The victim testified that she was awakened one morning by appellant pulling at her clothes and holding a knife to her throat. The victim further testified that appellant raped her, then went downstairs to lie on her couch for a couple of hours. When the victim saw appellant on her couch she recognized him as someone who used to come around her house. Later that day the victim related to her niece what appellant had done and that evening her daughter took her to the hospital where she recounted the events for the treating physician. The physician called the police, and the victim told the officer that appellant had raped her.

1. Appellant contends that the trial court erred by allowing the prosecutor, during closing argument, to ask the jurors to put themselves in the place of the victim. Appellant objected to the following closing argument of the prosecutor: “When you are deliberating, when you are thinking about this case, try to put yourself in Mrs. Wright’s shoes, in her clothing, in her dressing, in her sleeping gown that morning, and what was the circumstance that she described to your [sic] folks?” The challenged remarks must be examined in the context in which they were made. See Baker v. State, 179 Ga. App. 802 (1) (348 SE2d 128) (1986). Prior to making the allegedly improper remarks, the prosecutor made the following statement: “Her story has always been consistent. It’s always been the same which was what [sic]: She woke up that morning or was awakened that morning. She didn’t wake up. She was awakened. And — and, you folks — trials are conducted in courtrooms, and its relatively quiet here. It’s relatively clean, and I hope it’s relatively comfortable. Sometimes it’s too hot. Usually in the summertime, the air conditioner is not working, and usually in the wintertime the heater is not working, but fortunately today and yesterday that hasn’t been the case. It’s quiet and clean and fairly comfortable in here. That’s not the situation that Mrs. Wright found herself in that morning, and you folks try to remémber that when you go back there in that jury room.” It appears that the prosecutor’s comments were in the context of talking about the circumstances which existed at the time of the incident, and were not improper. Furthermore, in view of the abundance of competent evidence which was adduced at trial, even if the prosecutor’s remarks were improper, we find it “ ‘highly probable that the error did not contribute to the judgment.’ [Cit.] ” Martinez v. State, 176 Ga. App. 448 (2) (336 SE2d 349) (1985). Accordingly, the trial court did not err in overruling appellant’s objection to the prosecutor’s argument.

2. Appellant’s second enumeration of error is that the trial court allowed, over objection, excessive hearsay testimony. At trial, three witnesses testified, over objection, that the victim told them that appellant had raped her. We find that the trial court properly admitted the evidence under well-established exceptions to the hearsay rule.

(a) The emergency room physician testified that the victim told him she had been raped by a black man named Miller. The physician’s statement was admissible as a statement made for the purpose of describing medical history. OCGA § 24-3-4; Johnson v. State, 149 Ga. App. 544 (5) (254 SE2d 757) (1979). Since the identity of the appellant contained in the out-of-court statement was unnecessary to any legitimate purpose addressed in OCGA § 24-3-4, the admission of that portion of the statement was error. However, since the evidence was cumulative, its admission was not prejudicial to appellant. John son, supra at Division 5.

Decided February 15, 1990.

Ñaman L. J. Wood, for appellant.

Stephen F. Lanier, District Attorney, H. Harold Chambers, Jr., Assistant District Attorney, for appellee.

(b) The investigating officer testified that during his interview with the victim at the emergency room she told him that appellant raped her. The court, after overruling the objection, explained to the jury that the “officer’s (c)onversation may be admitted under [OCGA § 24-3-2] to explain conduct and as such is not considered hearsay. (Cit.)” Little v. State, 167 Ga. App. 880, 882 (307 SE2d 761) (1983). The conversation the officer had with the victim was sufficient to authorize his action of arresting appellant. See Morton v. State, 168 Ga. App. 18 (1) (308 SE2d 41) (1983).

(c) After the victim’s niece testified that the victim told her appellant raped her, the court instructed the jury that the testimony did not prove that the rape happened, but was admitted for the purpose of showing that the victim told her niece that she was raped. The veracity of the victim was at issue on the question of whether appellant raped her. Her out-of-court statement made to her niece was consistent with her in-court testimony given under oath and subject to cross-examination, thus the concerns of the hearsay rule are not present. Brannon v. State, 176 Ga. App. 781 (1) (337 SE2d 782) (1985). Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985) controls this case, and the trial court did not err admitting the testimony of the victim’s niece.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


author: Beasley, Judge.

text:
    A89A1782.
    BURKE COUNTY DIALYSIS CENTER, INC. et al. v. WALTERS.
    (391 SE2d 33)
   Beasley, Judge.

Burke County Dialysis Center, Inc., and Morris, one of its founders, appeal the grant of summary judgment to Walters, who was the other founder of the company. Walters sued the Center and Morris on a promissory note which was allegedly part of the consideration for the Center and Morris to buy out Walters’ interest. Attorneys for all parties were present at the transaction.

Attached to the complaint was a copy of the promissory note, which bore two sets of handwritten initials “FAM III” in the margin and only the first initial of a signature, “F,” on the maker’s signature line. Morris’ full name is F. Antonio Morris. The guaranty signature line is blank. Requests for admission to defendant Morris alone brought his denials as to the genuineness of the note and of his signature on it.

At deposition, Morris acknowledged that the signature on the fully signed Stock Repurchase and Release Agreement tendered at the deposition was his but said he did not recognize the note document, which also had full signatures. When directed to its second and third pages, which showed signatures by Morris as corporate representative and guarantor respectively, he admitted these were his signatures but added that he did not remember signing the note.

Walters’ Affidavit with the Motion for Summary Judgment stated that Morris signed both the note and the guaranty in his presence. The affidavit of attorney Belk, who represented Walters and his corporation in the negotiations, stated that he and the other attorneys were present “when Exhibit ‘A,’ the promissory note in the amount of Forty-five thousand and no/100 ($45,000) was signed by F. Antonio Morris, III as President of Burke County Dialysis Center, Inc. to Ted Walters with the personal guarantee dated June 9, 1986, signed by F. Antonio Morris, III; . . .”

In opposition, Morris’ affidavit stated that although the promissory note “purported to have my signature affixed as obligor[,] I have no independent recollection of ever having signed such a promissory note and do not believe that I signed the [fully signed] document which was shown to me.” He acknowledged that the handwritten “F” on the signature line of the initialled note was his and stated that he had stopped writing because he did not intend to sign that document.

Morris and the Center contend that a factual issue was created as to whether or not Morris signed the note and guarantee and that there was a question as to the “number” of notes. There is no issue concerning the number of notes. The Repurchase Agreement states that it had appended to it the note as Exhibit A and that the agreement was executed in two counterparts, each of which constituted an original. His initial was on one and his full signatures were on the other.

As to Morris’ signatures on the note and guarantee, he deposed that they were his, but he did not remember signing them, later stating he did not believe he signed them.

Under these circumstances, no dispute of fact was created. Morris never unequivocally denied having signed the documents; he only says he does not remember and he does not “believe” he did. See Gentile v. Miller, &c., Inc., 257 Ga. 583 (361 SE2d 383) (1987); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). Compare Hogan v. Pearson, 190 Ga. App. 787, 788 (2) (380 SE2d 82) (1989) with Virgil v. Kapplin, 187 Ga. App. 206, 207 (1) (369 SE2d 808) (1988).

Decided February 15, 1990.

William H. Lumpkin, for appellants.

John P. Claeys, for appellee.

Morris and the Center also argue that the note and guaranty were never properly authenticated, creating an issue of fact, because there was no affidavit from Richardson, the subscribing witness to Morris’ signatures. OCGA § 24-7-4. Richardson’s absence was explained by Morris’ own testimony. He had since moved to Ohio, thus becoming unavailable and allowing for proof of authenticity by circumstantial evidence. OCGA § 24-7-4 (2); Campbell v. Sims, 161 Ga. 517, 521 (5) (131 SE 483) (1925); Kohlmeyer & Co. v. Bowen, 126 Ga. App. 700, 706 (2) (192 SE2d 400) (1972).

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A1934.
    WILSON v. THE STATE.
    (390 SE2d 903)
   Beasley, Judge.

Following the overruling of his amended motion for new trial, Wilson appeals his convictions and sentences for robbery by the use of force, OCGA § 16-8-40 (a) (1); false imprisonment, OCGA § 16-5-41 (a); and aggravated assault with the intent to rape, OCGA § 16-5-21 (a) (1).

The evidence is construed so as to uphold the verdict. Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985). Between 11:00 a.m. and noon, Brown was walking from her apartment to a MARTA station. She was at a stoplight when Wilson came up behind her, put his arm around her neck, and said in her ear that he had a knife and that she better come with him. Brown was afraid and allowed Wilson to take her through an alley.

In the alley, Wilson tried to grab Brown’s purse and told her to give him all her money. She told him she had only six dollars. Wilson said he did not care and to give it to him. He told Brown she had more money in the purse and wanted her to pour everything out. Wilson again tried to grab the purse; in doing so, he spied Brown’s rings. He asked how much the rings were worth and Brown responded they were worth nothing. He said he wanted to see the rings anyway. When Brown refused to remove them, Wilson said if she did not do so, he had a knife and would cut her up. Brown surrendered the rings. A car drove slowly through the alley where the two were standing. Wilson put his arm back around Brown’s neck, told Brown to put her arm on his shoulder, walk with him and not scream or run or he would rip off her clothes and make her walk naked through the street.

The two walked out of the alley and to the next block between two houses. When Brown refused to take her shirt off, Wilson started pulling it and asked if she had ever had anything taken by force. She replied no and Wilson said he would do so if she did not do what he said. Brown moved her hands from her shirt and Wilson jerked down her undergarment and put his hands and mouth on her bosom. Brown was afraid she was going to be raped. The same car that had driven through the alley drove by and slowed down. Wilson jerked Brown’s shirt back down and told her again to put her arm on his neck. Brown told him he had her money and rings and if he let her go she would not say anything. Wilson said he would not let her go and that she “needed a real man.”

With his arm around Brown’s neck, Wilson walked her to the next block, near her apartment complex. Brown asked to go to her apartment. Wilson at first agreed but then refused, stating that Brown was trying to trick him and he would drag her behind some bushes. Wilson made Brown sit on the corner, still holding her and forcing her to keep her arm on his shoulder. A patrol car drove around and stopped. Wilson instructed Brown not to look at the police or scream or say anything. Another patrol car pulled up and Wilson jumped up and ran with Brown’s rings.

The police had noticed Wilson because they were responding to a “suspicious person” call in regard to a burglary. After a chase between houses and over fences, the officers caught Wilson. He complained of injuries and was taken to the hospital, where an attempted escape was stopped.

1. Appellant contends the trial court erred by denying his request for a charge on simple battery even though the evidence warranted it.

At trial, appellant denied any assault with intent to rape and specifically any choking, fondling, or touching of the victim. The State’s evidence if accepted was sufficient to enable the jury to find that appellant had committed the charged aggravated assault with intent to rape, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Therefore, the evidence allowed the jury to find either the completed charged offense or no offense, and it was not error to refuse to charge on simple battery. See Terry v. State, 166 Ga. App. 632 (305 SE2d 170) (1983), and Tremble v. State, 162 Ga. App. 761, 762 (3) (292 SE2d 442) (1982), which discuss this principle in the context of rape.

2. Appellant contends the trial court erred in denying his request to charge, “In all cases their (sic) exists the presumption that no crime has been committed.” The ground is that he was denied the presumption of innocence and that a burden to prove that no crime was committed was laid on him.

Decided February 15, 1990.

Rochelle L. Cross, for appellant.

Lewis R. Slaton, District Attorney, for appellee.

The trial court fully charged the jury on the State’s burden of proof and the defendant’s presumption of innocence. There was no error in refusing to give defendant’s requested charge. Flanders v. State, 188 Ga. App. 98, 99 (4) (371 SE2d 918) (1988); Herrod v. State, 182 Ga. App. 876, 877 (2) (357 SE2d 317) (1987); Smith v. State, 180 Ga. App. 422, 424 (2) (349 SE2d 279) (1986).

3. Appellant enumerates as error the admission of evidence of the circumstances of arrest, namely the officers’ testimony that they were responding to a suspicious person call involving a burglary.

Appellant’s counsel had filed a motion in limine asking the trial court to order the prosecution to offer no reference or evidence to give the jury the impression that Wilson was the burglary suspect. The State said it would instruct the officers not to go into any details about the burglary. Counsel objected to even mention that the officers were looking for a suspicious person. The State again indicated it would not go into any involvement in the burglary but desired the officers to testify that they were on a suspicious person call, to explain why they were in the area, and that their attention was drawn to appellant because he fit the description. The court indicated it would permit this, and there was no further objection.

Appellant obtained the ruling he sought in his motion, i.e., no mention of the burglary. As to the evidence given, “ ‘ “all circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them. (Cits.)” [Cits.]’ [Cit.]” Pierre v. State, 189 Ga. App. 364, 365 (1) (375 SE2d 511) (1988); see also Claypool v. State, 188 Ga. App. 642, 643 (1) (373 SE2d 765) (1988) and Lawrence v. State, 187 Ga. App. 211, 212 (1) (369 SE2d 531) (1988). Permitting the testimony was not erroneous.

Judgments affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A2235.
    REEVES v. THE STATE.
    (391 SE2d 35)
   Beasley, Judge.

Defendant was convicted of possessing cocaine, OCGA § 16-13-30 (a), and failing to give a turn signal, OCGA § 40-6-123.

1. Error is assigned to the admission of testimony of two officers concerning statements defendant’s wife made while they were both in custody.

When Reeves was stopped for a traffic violation, the state patrolman suspected him of driving under the influence and administered an alcosensor test. The officer saw the neck of a beer bottle under the passenger seat where Reeves’ wife was seated and, upon closer observation, a small quantity of crack cocaine. Another male and the couple’s two infants were in the back seat. The Reeveses gave conflicting accounts of where they had just come from. The patrolman radioed for backup help, arrested the adults and transported all the car occupants to the sheriff’s office.

According to the patrolman, after strip searching the two males he heard signs of an altercation from the bathroom where a female officer was searching defendant’s wife. He arrived in time to retrieve a small packet of cocaine from the toilet where defendant’s wife had thrown it after it was discovered in one of the baby’s diapers. As the wife was being led out, she ran towards the two males and screamed: “You tell them I had nothing to do with it. Y’all tell them it’s yours. You tell him I didn’t have nothing to do with it.”

The female deputy testified to basically the same facts, relating that the wife exclaimed: “Tell them it’s not mine. You better tell them it’s yours, it’s yours.”

The co-defendant wife did not testify at her husband’s trial. Defendant argues that the testimony by the two witnesses was hearsay which should have been excluded because it violated his Sixth Amendment right to confrontation. See Price v. State, 239 Ga. 439, 442 (2) (238 SE2d 24) (1977); Boswell v. State, 158 Ga. App. 727 (282 SE2d 196) (1981). When the patrolman testified and related what his wife said, defendant objected twice merely that it was hearsay. When the female deputy recounted what the wife said in defendant’s presence, no objection was interposed. No Sixth Amendment right was invoked. Nor were the limitations implicit in OCGA §§ 24-3-5 or 24-3-52 called upon.

No reversible error appears for two reasons. One, the testimony was not subject to the objection urged at trial. “A witness may testify as to what he saw and heard in the defendant’s presence.” Moore v. State, 240 Ga. 210, 212 (2) (240 SE2d 68) (1977). Accord Sosebee v. State, 190 Ga. App. 746, 750 (6) (380 SE2d 464) (1989); Chambers v. State, 183 Ga. App. 874, 875 (2) (360 SE2d 438) (1987); Green v. State, 175 Ga. App. 849, 850 (1) (335 SE2d 4) (1985); Broome v. State, 141 Ga. App. 538, 540 (2) (233 SE2d 883) (1977); Hall v. State, 141 Ga. App. 289, 290 (2) (233 SE2d 262) (1977). Second, defendant failed to object when substantially identical testimony was given by the deputy. Chambers, supra; Green, supra.

2. The evidence adduced at trial when viewed in favor of the verdict was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt. Lewis v. State, 186 Ga. App. 349, 350 (1) (367 SE2d 123) (1988); Robinson v. State, 175 Ga. App. 848 (2) (335 SE2d 2) (1985).

Decided February 15, 1990.

Paul Fryer, for appellant.

J. Brown Moseley, District Attorney, for appellee.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A2250.
    MANN ELECTRIC COMPANY v. WEBCO SOUTHERN CORPORATION.
    (390 SE2d 905)
   Sognier, Judge.

After Seymour Service Company, Inc. brought suit against Mann Electric Company to recover sums allegedly owed for work performed under a construction contract, Mann Electric filed a third-party complaint against Webco Southern Corporation and Tim Worley individually and d/b/a Concept Construction. Mann Electric appeals from the grant of Webco’s motion to dismiss.

In October 1987, Petro Village Partnership, of which appellee was the managing general partner, as owner, and Tim Worley d/b/a Concept Construction (hereinafter “Concept”), as general contractor, entered into general contracts whereby Concept agreed to build two gas station emporiums known as the “Lawrenceville project” and the “Pleasantdale project.” Concept then subcontracted the electrical work for the projects to appellant, which in turn signed a sub-subcontract with Seymour for a portion of the work required under the subcontract with Concept. Appellant’s president, Noyle Mann, attended a March 31, 1988 meeting held by Concept and appellee to discuss Concept’s pending pay request, and indicated that because of Concept’s failure to pay appellant on a timely basis for work performed under the subcontract, including its failure to pay approximately $18,000 currently outstanding on the Lawrenceville project, appellant was reluctant to continue working on the projects without adequate assurance of payment. Gary Carmical, appellee’s project manager, testified by deposition that in order to convince appellant to complete the work and to ensure that appellee received lien waivers from appellant, he agreed to execute checks payable jointly to appellant and Concept for money owed to Concept under the general contract for work performed by appellant. Carmical confirmed this agreement by a letter in which he stated that “[appellee] and Petro Village Partnership agree to pay all sums of money agreed due and payable to [appellant] on the [Pleasantdale and Lawrenceville] properties jointly to [appellant] and Concept Construction.” Noyle Mann testified by affidavit that appellant completed its work for both projects in reliance on this commitment by appellee, but has not been compensated for that work. The record reveals that on April 8, 1988 appellee issued a joint check to appellant and Concept for $18,700 owed to appellant on the Pleasantdale project, and that Concept endorsed the check and signed a lien waiver. The evidence is in dispute as to whether appellant refused to execute a lien waiver or whether the check was never tendered to appellant, but the record clearly establishes that the check was never endorsed or cashed by appellant. Appellee subsequently issued a check for $56,335 jointly to appellant and Concept for the Lawrenceville project, but the check was not released because Concept refused to sign a lien waiver.

After Seymour failed to receive payment from appellant for these projects, it filed suit on the sub-subcontract. Appellant then filed its third-party complaint against appellee and Concept, and the trial court dismissed the claim against appellee on the basis that no enforceable contract existed between it and appellant.

1. Although the grant of a motion to dismiss one of several defendants to a lawsuit is appealable only as an interlocutory appeal under OCGA § 5-6-34 (b), McMullan v. Ga. Girl Fashions, 180 Ga. App. 228, 229 (1) (348 SE2d 748) (1986), here the trial court considered affidavits and depositions outside the pleadings and thus appellee’s motion to dismiss was required to be converted to a motion for summary judgment, OCGA § 9-11-12 (b), the grant of which is directly appealable pursuant to OCGA § 9-11-56 (h). McMullan, supra. Consequently, we have jurisdiction to entertain this appeal.

2. Appellant contends the trial court’s ruling was erroneous because the Carmical letter constituted a novation of the original subcontract between appellant and Concept. We disagree. “The mere assumption of a debt by a third party is not sufficient to establish novation, but it is essential that an intention to release the first obligor and extinguish his liability should definitely appear; otherwise the assumption of debt by a third party will be presumed to be merely additional security.” (Citations and punctuation omitted.) Cowart v. Smith, 78 Ga. App. 194, 198 (50 SE2d 863) (1948). Here, the record is devoid of any evidence that Concept was released from its obligations under the subcontract with appellee or that its liability thereunder was extinguished. Indeed, appellant has alleged that appellee and Concept are jointly liable to appellant. Thus, no novation occurred.

However, we do find that the evidence raised a fact question as to whether a separate contract, a joint payment agreement, was created whereby appellee agreed to make payment jointly to appellant and Concept of the sums owed Concept under the general contract for work performed by appellant in exchange for appellant’s promise to complete the electrical work for the projects. See generally OCGA § 13-3-1; Wise &c. Assoc. v. Rosser White &c. Inc., 146 Ga. App. 789, 792 (2) (247 SE2d 479) (1978). Although the trial court held there was no consideration for the joint payment agreement because an agreement to perform what one is already legally obligated to do is not sufficient consideration for the promise of another (see Hiers-Wright &c. v. Manufacturers Hanover &c., 182 Ga. App. 732, 734 (356 SE2d 903) (1987)), we agree with appellant that forbearance can constitute adequate consideration for a contract. See OCGA § 13-3-42 (a), (c) (2). “ ‘Any benefit accruing to him who makes the promise, or any loss, trouble, or disadvantage undergone by, or charge imposed upon, him to whom it is made, is sufficient consideration ... to sustain [a contract]. . . . Damage or trouble to the promisee, as well as benefit to the promisor, is a sufficient consideration to support a promise.’ [Cits.]” Zachos v. C & S Nat. Bank, 213 Ga. 619, 624 (100 SE2d 418) (1957). Here, if Concept was in material breach of the subcontract so as to excuse appellant from further performance, appellant had the option of either rescinding or suing for breach of the subcontract, see Western Contracting Corp. v. State Hwy. Dept., 125 Ga. App. 376, 384 (187 SE2d 690) (1972), and thus consideration may have existed in the form of appellant’s forbearance to exercise its remedies and election to complete performance in reliance upon appellee’s promise of joint payment. See Trust Co. of Columbus v. Rhodes, 144 Ga. App. 816, 818 (242 SE2d 738) (1978). As this is a question of fact, we hold the trial court erred by granting summary judgment to appellee.

Decided February 15, 1990.

Alan I. Seitman, for appellant.

James A. Robbins, Jr., Thrasher & Whitley, Robert E. Whitley, L. Matt Wilson, John C. McManus, for appellees.

Judgment reversed.

Banke, P. J., and Pope, J., concur.


text:
    A89A2322.
    CULLEN v. THE STATE.
    (390 SE2d 908)
   Beasley, Judge.

Cullen appeals bench convictions for trafficking in cocaine, OCGA § 16-13-31, and violation of the Georgia Controlled Substances Act by possession of less than one ounce of marijuana, OCGA §§ 16-13-30 (j) (1); 16-13-2 (b). The question is whether the court erred in denying the motion to suppress evidence of the contraband because the arrest was made without probable cause.

At the motion hearing, Drug Enforcement Administration Agent Markonni testified to the following. He and another agent were in Hartsfield International Airport watching the arrival of a non-stop flight from Miami, a drug source city. As the agents observed passengers deplaning, Markonni noticed Cullen because he was wearing a shirt, normally worn inside the trousers, out over the front of his trousers. Also, it appeared that Cullen’s lower right abdomen was distended. Markonni had seen the wearing of such a shirt outside trousers used as a technique for attempting to conceal body-carried drugs in the lower abdomen area, a commonly used method of concealing drugs in commercial air travel. The agents followed Cullen and watched him walk up the concourse. At a point near empty gates at the spine of the concourse, Markonni decided to initiate a conversation.

Both agents, in casual clothing and without weapons displayed, walked up to Cullen. Markonni identified himself and the other agent as police officers and asked if they could talk. Cullen was not threatened or coerced and agreed. From the onset, Markonni noticed that Cullen became nervous and his breathing quickened dramatically. Markonni examined Cullen’s airline ticket, which he produced on request, and found that it was roundtrip from Atlanta to Miami via Memphis. The trip was for less than one day and Cullen had no checked luggage but carried only a small tube bag. He said he had been to Florida to visit a friend. Cullen gave his correct name and produced a North Carolina driver’s license. His hand shook as he handed Markonni the license.

Markonni explained they were narcotics agents looking for drugs and narcotics coming through the airport and asked Cullen if he would cooperate by allowing a search for drugs of his person and bag. Cullen agreed and became more nervous. Markonni stated that they could do the search there or go to a more private place if Cullen wished. Cullen stated that the search could be done where they were, hesitated and said, “[W]hat would happen if I said no?” Markonni replied, “Are you saying you don’t want me to search you and your bag?” Cullen responded, “[W]ell, no, I was just asking.” The other agent asked if she could search Cullen’s bag and he said yes. Markonni again asked if he could search Cullen and Cullen agreed. At no time did Cullen attempt to terminate the conversation or attempt to leave.

Cullen started to raise his arms and turn his body away from Markonni so that his front was against a set of chairs and his back was facing Markonni. Markonni began a patdown search, reached around the front of Cullen’s body and felt the object in the lower abdomen area. It was a hard lumpy substance consistent with other objects that Markonni had felt that turned out to be cocaine. Markonni arrested Cullen and removed the bulge from Cullen’s trousers, which was approximately four ounces of cocaine. The other agent found a quantity of marijuana in one of Cullen’s trouser pockets along with another small quantity of cocaine.

Decided February 15, 1990.

Sexton, Turner & Moody, Lee Sexton, Lillian L. Neal, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

Cullen testified that when he asked Markonni what would happen if he said no to a search of his bag and person, Markonni stated it would cause a lot of problems, so that Cullen agreed to a search only of his bag.

The undisputed circumstances of the agents’ approach and interview with Cullen show that no “seizure” of the defendant took place. See Voight v. State, 169 Ga. App. 653 (314 SE2d 487) (1984).

The trial court determined that there was consent to search. Unless clearly erroneous, the trial court’s rulings on disputed facts and credibility at a suppression hearing in regard to the issue of consent to search must be accepted by the appellate court. Williams v. State, 251 Ga. 749, 792 (8) (a) (i) (312 SE2d 40) (1983). Markonni’s testimony provided ample evidentiary support for the conclusion that Cullen validly consented to a search of both his bag and his person.

The consent search which allowed the experienced DEA agent to feel the suspect physical bulge, defendant’s nervousness and attempt to turn the bulge area away from the agent, and classic indicia of the drug courier, i.e., brief trip from a drug source city with no checked baggage, provided sufficient probable cause to arrest Cullen as a drug courier. See Mixon v. State, 184 Ga. App. 623 (362 SE2d 111) (1987).

Appellant’s reliance on Tarwid v. State, 184 Ga. App. 853 (363 SE2d 63) (1987) and Rebeiro v. State, 186 Ga. App. 518 (367 SE2d 857) (1988) is misplaced. The former involved a seizure which was not objectively reasonable at its inception, and the latter involved the non-consensual search of a suspect bulge for which the defendant had offered explanation.

Denial of the motion to suppress was not error.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.