text:
    A90A0241.
    CALHOUN v. MAYNARD et al.
    (395 SE2d 645)
   Beasley, Judge.

Plaintiff Calhoun appeals the denial of her motion for new trial in this wrongful death case, bottomed on three errors in the jury charge and contending that she had ineffective assistance of counsel.

Viewed in favor of the verdict, the evidence was that Calhoun’s daughter Nancy, whose chronological age was 18 and whose mental age was less than 2, resided in a group home due to her severe retardation and epilepsy. She was given Dilantin to control her seizures. Defendant Maynard had worked part-time at the home for several years. Defendant Scarborough was the home’s supervisor. Two part-time workers working separate shifts covered weekends and holidays. The eight residents of the home all suffered from mental and physical handicaps. The policy of “least restrictive environment” required that the residents be allowed as much activity as they were able to do and to be given privacy to the extent possible.

Because Nancy was unable to perform most self-care activities alone, Maynard’s practice was to run a small amount of water in the tub, the length of which was less than Nancy’s height, and to assist her in her bath. Two other residents also helped. One was able to basically care for herself and assisted Maynard regularly in the care of Nancy and other residents.

On Sunday, January 27, 1985, Maynard ran the water in the second floor bath and turned it off. One of the two assisting residents was undressing Nancy when Maynard was distracted by something on the first floor and went to check on it. She was gone less than two minutes when the second resident came to her and indicated something was wrong with Nancy. Maynard found Nancy lying on the floor in the bedroom adjacent to the bathroom with her legs bent under her, without respiration and with only a weak pulse. She called Scarborough and an ambulance, which arrived in one minute, but Nancy could not be revived. Neither of the other residents was capable of testifying nor of advising the authorities of what occurred after Maynard left the bathroom.

The medical examiner concluded that Nancy drowned, with a secondary diagnosis of Down’s Syndrome and epilepsy. He also said an epileptic seizure could have caused the drowning. Defendants contended she could have fallen face down in the tub as a result of slipping or a seizure. There was evidence her seizures would cause her to lose consciousness.

The complaint and pretrial order alleged only ordinary negligence. At the beginning of trial, the court specifically confirmed that this was plaintiff’s sole theory.

1. Appellate counsel contends that a new trial is demanded because Calhoun was rendered ineffective assistance by her chosen trial counsel. No citation of authority is given. If a constitutional right is impliedly invoked, it is of no avail.

The Sixth Amendment to the federal Constitution and Art. I, Sec. I, Par. XIV of the Georgia Constitution provide, for effective assistance of counsel for one charged with a criminal offense, not participants in a civil dispute. Cf. Haynes v. City of Lake City, 136 Ga. App. 112, 113 (220 SE2d 33) (1975).

2. The first and second enumerations claim error in the court’s failure to charge on negligence per se and professional negligence. Neither charge was requested below, nor was the failure to so charge objected to after instructions were given.

Although copies of the DHR standards applicable to group homes and now urged as the basis for negligence per se were appended to Calhoun’s motion for new trial, these standards were neither referred to nor introduced during trial. They will not be considered here. Ekstedt v. Charter Med. Corp., 192 Ga. App. 248, 249 (2) (384 SE2d 276) (1989).

Since there was no evidence of either negligence per se or professional negligence as such and no request for such charges, their omission was not error. Carrandi v. Sanders, 188 Ga. App. 562, 564 (2) (373 SE2d 661) (1988); Medoc Corp. v. Keel, 166 Ga. App. 615, 618 (2) (305 SE2d 134) (1983); see Georgia Kraft Co. v. Laborer’s Int’l Union, 170 Ga. App. 581, 585 (317 SE2d 602) (1984); OCGA § 5-5-24.

3. The court charged on the principle of accident. Chadwick v. Miller, 169 Ga. App. 338, 339 (1) (312 SE2d 835) (1983); Wallace v. Ramey, 191 Ga. App. 293, 294 (2) (381 SE2d 434) (1989); Martini v. Nixon, 185 Ga. App. 328 (2) (364 SE2d 49) (1987). It was objected to on the ground that there was no evidence of an accident. Plaintiff contended that the evidence was that “the cause of death was drowning . . . and we’re alleging that her death was not the seizure, but her death was a result of Ms. Maynard’s not being present when the seizure or whatever took place. ...”

No witnesses were able to testify what occurred after Maynard left the bathroom. Defendants posited that Nancy could have had a seizure, falling face down in the water and drowning or that she slipped and fell. Plaintiff postulated that, had Maynard been present, Nancy would not have been face down in the water at all.

On the conflicting evidence, the jury could have rejected both possibilities and concluded that Maynard, if present, could not have prevented seizure or subsequent drowning. The autopsy showed that Nancy was alive when she was taken out of the tub, because she aspirated blood from her injured nose. Maynard had no CPR training. The ambulance crew which arrived quickly could not resuscitate Nancy.

Decided July 3, 1990.

Ellerin & Williams, Irwin M. Ellerin, Denise A. Hinds, for appellant.

Beck, Owen & Murray, Richard L. Collier, for appellees.

The evidence warranted the charge. Jump v. Benefield, 193 Ga. App. 612, 614 (2) (388 SE2d 864) (1989).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Carley, Chief Judge.

license: Public Domain

text:
    A90A0271.
    WALLACE v. SEARS, ROEBUCK & COMPANY, INC.
    (396 SE2d 41)
   Carley, Chief Judge.

While she was walking down an aisle in appellee-defendant’s store, appellant-plaintiff was suddenly and unexpectedly struck by a young child who was riding a skateboard. Seeking recovery of damages for the injuries that she sustained, appellant brought this negligence action against appellee. Appellee answered and, after discovery, moved for summary judgment. The trial court granted the motion, holding that appellee had “negated at least one essential element of [appellant’s] premises liability claim by showing a lack of foreseeability and greater knowledge on [appellee’s] part. . . .” It is from this order granting summary judgment in appellee’s favor that appellant brings this appeal.

The record contains evidence that appellee displayed one or more unboxed skateboards that were otherwise unsecured to the display shelf in any way. There is also evidence that appellee’s employees had seen children skateboarding in the store on other occasions and, in accordance with store policy, had stopped them from engaging in such hazardous activity. Moreover, there is evidence which would authorize a finding that the child who collided with appellant obtained the skateboard from appellee’s display, as he was seen on the premises without a skateboard shortly before the injury occurred. Construing this evidence most favorably for appellant, appellee had knowledge of the manner in which its skateboards were displayed and the issue to be decided is whether, as a matter of law, appellee had no duty to anticipate and guard against the probability that children would ride the loosely displayed skateboards and injure other unsuspecting invitees on the premises.

“ ‘If the conduct of third persons ... is such as to cause any reasonable apprehension of danger to other customers or invitees because of such conduct, it is the duty of the proprietor to interfere to prevent probable injury; and a failure so to interfere, and consequent damage, will subject such proprietor to an action for damages for such negligent failure to prevent the injury. This duty of interference on the proprietor’s part does not begin until the danger is apparent, or the circumstances are such as would put an ordinarily prudent man on notice of the probability of danger. (Cit.)’ . . . [Cit.]” (Emphasis in original.) Towles v. Cox, 181 Ga. App. 194, 197 (1) (351 SE2d 718) (1986). See also Belk-Hudson Co. v. Davis, 132 Ga. App. 237, 238 (1a) (207 SE2d 528) (1974). “Usually ... a proprietor is not liable for injuries resulting solely from misuse of otherwise safe premises by a third party, where such misuse is unknown to the proprietor and is unanticipated by him. [Cits.]” (Emphasis supplied.) Congleton v. Starlite Skate Center, 175 Ga. App. 438, 440 (333 SE2d 677) (1985). Construing the evidence most favorably for appellant, the premises were not “otherwise safe” because appellee itself had created the possibility of misuse of its skateboards by displaying them in such a manner as to give children ready access to them. See Colonial Stores v. Donovan, 115 Ga. App. 330, 331 (2) (154 SE2d 659) (1967); Parsons, Inc. v. Youngblood, 105 Ga. App. 583 (125 SE2d 518) (1962). Compare Elliott v. Burkhalter, 173 Ga. App. 749 (327 SE2d 858) (1985). Evidence of appellee’s knowledge of prior instances of misuse of its loosely displayed skateboards by children precludes the grant of summary judgment in appellee’s favor notwithstanding its lack of actual knowledge of the misuse of its skateboard in this particular instance. A jury could find that, in the exercise of due care, appellee should have anticipated that injury to its invitees from misuse by children was a probable consequence of the decision to display its skateboards loosely and should have done more to prevent the occurrence of such an injury. “The question of the extent of [appellee’s] responsibility to anticipate the consequences of making the [skateboards] accessible to [children], in spite of its policy of not allowing [children] to use them, was therefore the province of the trier of fact. . . . [Cit.]” Budet v. K-Mart Corp., 491 S2d 1248, 1251 (Fla. App. 1986).

“ ‘With reference to foreseeability of injury, “[t]he correct rule is that in order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient if, in ordinary prudence, he might have foreseen that some injury would result from his act or omission, and that consequences of a generally injurious nature might result.” (Cit.)’ [Cit.] . . . ‘Issues of negligence and proximate cause are generally for the jury, and a court should not decide them except in plain and indisputable cases. (Cits.)’ ” Towles v. Cox, supra at 197-198 (1). It follows that the trial court’s grant of appellee’s motion for summary judgment must be reversed. Compare Belk-Hudson Co. v. Davis, supra (not involving misuse of items on the premises); Barnes v. J. C. Penney Co., 70 P2d 311 (Wash. 1937) (wherein there was no evidence beyond the fact of collision between a child on a tricycle and a customer).

Decided July 3, 1990.

Davis, Brofman, Zipperman & Kirschenbaum, E. Marcus Davis, Steven A. Suna, Lawrence J. Pond, for appellant.

Alston & Bird, Jennifer A. Brown, Ronald L. Reid, for appellee.

Judgment reversed.

McMurray, P. J., and Sognier, J., concur.


text:
    A90A0312.
    VASWANI et al. v. SOUTHERN MORTGAGE & FINANCIAL SERVICES CORPORATION.
    (395 SE2d 647)
   Carley, Chief Judge.

Appellee-plaintiff Southern Mortgage & Financial Services Corporation is an independent mortgage broker. Appellant-defendant Alexander Saunders is a real estate broker who acted as the agent in the purchase by appellant-defendant Lachman Vaswani of two properties. After the two sales closed, appellee filed suit, seeking to recover fees that it had allegedly earned for service performed in connection with the two loans that had been obtained by appellant Vaswani in connection with his purchase of the properties. The case was tried before a jury and a verdict was returned in favor of appellee against both appellants. The trial court entered judgment on the jury’s verdict and appellants appeal.

1. Appellant Saunders moved for a directed verdict on the ground that, as the agent for appellant Vaswani, he could not be held personally liable for any fees that might be owed to appellee. The trial court’s denial of this motion is enumerated as error.

It is undisputed that appellant Saunders’ agency was disclosed. Accordingly, unless the evidence authorized a finding of appellant Saunders’ individual liability in his capacity as a disclosed agent, the trial court erred in denying the motion for a directed verdict. See generally Pearl Assurance Co., Ltd. v. Bernath, 185 Ga. 737 (2) (196 SE 389) (1938). Appellee urges that, despite the disclosure of the agency, there was a jury question as to whether its credit was expressly given to appellant Saunders and as to whether appellant Saunders had exceeded his authority. See OCGA §§ 10-6-87; 10-6-85. Under either theory, appellee would be required to prove the existence of an express agreement as to the payment of its fees. In this connection, appellee would have to show either an express agreement on the part of appellant Saunders that he would personally pay the fees or an express but unauthorized agreement on the part of appellant Saunders that appellant Vaswani would pay the fees.

The evidence shows the following: A mortgage broker, such as appellee, generally does not receive any fee from a borrower, such as appellant Vaswani, or from a real estate agent, such as appellant Saunders. Instead, a mortgage broker generally is paid directly by the lender making the loan. The borrower pays only a loan origination fee that is charged by the lender while the mortgage broker, in turn, is paid by the lender from the loan origination fee that has been charged to and collected from the borrower. Thus, although the borrower may ultimately pay the mortgage broker a fee, he does so only indirectly through his direct payment of the lender’s loan origination fee. There is evidence of a deviation from this standard practice in the instant case. Rather than pay any loan origination fee directly to the lender, appellant Vaswani planned to finance that fee and his other closing costs. Accordingly, the purchase price that appellant Vaswani had agreed to pay included the amount of the lender’s closing costs and the seller had agreed to pay those costs to the lender. By financing the closing costs, appellant Vaswani thus deviated from the standard practice by paying the lender’s loan origination fee indirectly rather than directly.

Insofar as appellee is concerned, however, there is no evidence of an express agreement on the part of appellant Saunders to deviate from the standard practice so that, rather than having to secure the payment of its fees directly from the lender, appellee would, instead, be paid a fee directly by appellants. Appellee’s president merely testified that he had been advised by appellant Saunders that appellant Vaswani “would not pay — would not pay anything but that if we put it in the loan, and [appellee] normally get[s] paid out of discount points, but in this particular situation where [appellee] was going to save them so much money, they were going to agree to the fee." (Emphasis supplied.) This evidence may show that a mutual agreement was reached as to the use of appellee’s compensated services despite appellant Vaswani’s plan to deviate from standard practice and pay no loan origination fee directly to the lender. However, it does not show that appellee was ever expressly promised that it would not have to secure its fees directly from the lender, but would receive payment directly from appellants. Other than this testimony, there is only evidence of certain vague reassurances by appellant Saunders that the sales would close and that appellee would, therefore, presumably receive its fees. There was no evidence that appellant Saunders ever expressly promised that, upon the closings, appellee would receive its fees either directly from him or directly from appellant Vaswani rather than directly from the lender.

Since there was no evidence to authorize a finding that appellant Saunders made any express agreement to deviate from standard practice and accept the lender’s responsibility for the payment of appellee’s mortgage broker’s fees, the motion for a directed verdict should have been granted. “ ‘A contract is an agreement between two or more parties for the doing or not doing of some specified thing.’ [Cit.] “Specify” means, “to mention or name in a specific or explicit manner; to tell or state precisely or in detail.” (Cit.)’ [Cit.] [The] failure [to produce any evidence] of [an] agreement . . . specifying] [that appellee’s] fees were to be paid by . . . appellants renders [any] agreement indefinite and unenforceable [as against them]. . . . Since [any] agreement was uncertain, incomplete and unenforceable with regard to . . . the payment of [appellee’s] fees, the trial court erred in [failing to grant appellant Saunders’ motion for a directed verdict].” (Emphasis in original.) Poulos v. Home Fed. S & L Assn., 192 Ga. App. 501, 503 (2) (385 SE2d 135) (1989).

2. Appellant Vaswani also moved for a directed verdict on the ground that the evidence would not authorize a finding that he was personally liable for appellee’s fees. The failure to grant this motion is enumerated as error.

Appellee urges that the evidence authorized it to recover from appellant Vaswani under a quantum meruit theory. “Suit on quantum meruit must proceed, if at all, under [OCGA § 9-2-7]. A suit on quantum meruit is therefore a suit on an implied promise to pay the value of the services rendered.” Sapps v. Davids, 176 Ga. 265, 267 (1) (168 SE 62) (1933). It follows that “ ‘ “[t]here can be no recovery for services rendered voluntarily and with no expectation at the time of the rendition that they will be compensated, and this is true whether the services were or were not beneficial.” ’ ” Addison v. Southern R. Co., 108 Ga. App. 314, 315-316 (132 SE2d 833) (1963). As discussed in Division 1, there is ho implied promise on the part of the borrower that he will pay a fee for the services of a mortgage broker. The standard practice is for a mortgage broker to look to the lender for payment. Accordingly, appellee cannot recover from appellant Vaswani under a quantum meruit theory because a mortgage broker has no expectation of being compensated by the borrower. See Addison v. Southern R. Co., supra. Compare Ghee v. Kimsey, 179 Ga. App. 446, 448 (3A) (346 SE2d 888) (1986); Mitcham v. Singleton, 50 Ga. App. 457 (1) (178 SE 465) (1935). Appellee can recover only if the evidence showed the existence of an express promise enforceable against appellant Vaswani that he, rather than the lender, would pay the fees.

As discussed in Division 1, there was no evidence of any promise made by appellant Saunders which would obligate appellant Vaswani for the payment of appellee’s fees. Appellee urges, however, that appellant Vaswani himself made an express agreement to pay a $300 fee in connection with one of the loans. The only evidence of this agreement is a document wherein appellee stated and appellant Vaswani acknowledged that appellee’s fee would be $300. However, there is nothing whatsoever in the document which signifies appellant Vaswani’s agreement that he, rather than the lender, would pay this fee to appellee. The only evidence remotely bearing on whether appellant Vaswani had ever agreed to pay a fee directly to appellee is the above discussed testimony of appellee’s president that appellant Saunders had stated that appellant Vaswani “would not pay anything,” but would instead finance those lender’s closing costs from which appellee would otherwise expect to be paid.

Decided July 3, 1990.

Dailey & Groover, Lewis M. Groover, Jr., for appellants.

Ronald C. Harrison, Patrick J. Gibbs, for appellee.

Appellee further urges that it is entitled to recover $250 for a loan application fee that it had advanced to one of the lenders on appellant Vaswani’s behalf. While the evidence does show that appellee had given the lender a $250 check for the application fee, the lender never presented appellee’s check for payment. Accordingly, appellee cannot recover the $250 that has never actually been paid to the lender on appellant Vaswani’s behalf. Moreover, appellee presented no evidence that appellant Vaswani requested, consented to, or ratified appellee’s advancement of the lender’s loan application fee. See Ginsberg v. Termotto, 175 Ga. App. 265, 267 (1) (333 SE2d 120) 1985).

It follows that the trial court also erred in denying appellant Vaswani’s motion for a directed verdict. Assuming without deciding that appellee has any viable claim for its unpaid fees, it is a quantum meruit claim against those lenders who in making loans to appellant Vaswani, may have availed themselves of the benefit of appellee’s services.

Judgment reversed.

McMurray, P. J., and Sognier, J., concur.


author: Beasley, Judge. Deen, Presiding Judge, Pope, Judge,

text:
    A90A0513.
    CARTER v. THE STATE.
    (395 SE2d 891)
   Beasley, Judge.

Carter challenges the validity of two searches, one of his luggage and one of his jacket, in this appeal from a bench conviction for driving too fast for conditions, OCGA § 40-6-180, and violation of the Georgia Controlled Substances Act by possession of less than one ounce of marijuana, OCGA § 16-13-2 (b). He was acquitted, in effect, of driving while his license was suspended or revoked, OCGA § 40-5-121.

The evidence viewed to uphold the verdict, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985), showed the following. Sheriff’s Deputy Everidge was notified that the driver of a vehicle involved in a wreck had reported it and was en route with a wrecker back to the scene. Everidge arrived first and saw Carter’s car overturned in the grass median with extensive damage. Officer Alverson then arrived, followed by Carter with the wrecker.

It was raining hard so Everidge asked Carter to sit in the patrol car to relate information. Without objection from Carter, Everidge patted down his pockets to check for weapons and had him sit in the car. Carter told the officer he had been traveling south at seventy to seventy-three miles per hour when he lost control. An eyewitness truck driver confirmed that Carter had lost control on the wet road after passing him. It was approximately 10:45 to 11:00 p.m. The roadway had a large amount of standing water. The speed limit was sixty-five miles per hour.

A check on Carter’s Florida driver’s license informed Everidge that it had been suspended for points violation. Everidge advised Carter he was under arrest for driving with a suspended license and driving too fast for conditions and would be transported to the county jail to make bond.

On the way to jail, Carter told Everidge he had left his bags in the wrecker and requested that the police get them. Everidge responded that he would have Alverson bring them to the jail, and he contacted Alverson who was still at the scene. He brought the two bags while Carter was being booked and took them into an adjacent room to check for weapons before turning them over to Carter. The search revealed $65,000 in cash. When asked to explain, Carter said it represented life savings, a death settlement, and the proceeds from a property sale. A search of Carter produced a small plastic bag of marijuana in his top jacket pocket.

Appellant contends the searches were unlawful because his arrest was unlawful, as it was based on a charge for which (1) he did not receive actual or legal notice of the suspension of his driver’s license as required by OCGA § 40-5-60; (2) the arresting officer failed to verify a service date of notification of suspension of his license and to put such date on the Uniform Citation pursuant to OCGA § 40-5-121 (b) (1); (3) the State failed in its proof.

The unlawful arrest argument is first premised on the assumption that Carter was arrested solely because of the suspended license charge. When asked on recross to confirm that Carter would not have been jailed but for the suspended license charge, the arresting officer testified that was not necessarily so, that on a charge of driving too fast for conditions, it was up to the officer to charge the driver or make him post bond, even though in Carter’s case he doubted that would have happened.

Even assuming Carter was arrested solely because he was suspected of driving with a suspended license, the arrest was not illegal for the reasons urged. The legality of the warrantless arrest depended on whether or not at the time of the arrest the officer had probable cause to believe that an offense had been committed. The cause need not have risen to the level of proving guilt at trial. See Davis v. State, 172 Ga. App. 193, 194 (1) (322 SE2d 497) (1984); Bradford v. State, 149 Ga. App. 839 (256 SE2d 84) (1979). The factfinder’s later finding of a failure of the State’s evidence at trial would not retroactively vitiate the arrest if the arrest was supported by probable cause at the time. This it was, due to the results of the arresting officer’s on-the-scene check of appellant’s out-of-state license.

Appellant’s statutory arguments also fail. OCGA § 40-5-121 (b) (1), as in effect on the incident date (January 9, 1989), required that the arresting officer verify a service date and record it on the citation. Such “version of the statute . . . was in effect from July 1, 1988 until April 10, 1989. The current statute requires such verification only where the license suspension is the result of a failure to respond to a citation (OCGA § 40-5-56) or an insurance cancellation. See OCGA § 40-5-121 (b) (1) (1989); Ga. L. 1989, p. 519, § 15.” State v. Brooks, 194 Ga. App. 465, 466, n. 1 (390 SE2d 673) (1990).

For the purpose of addressing appellant’s arguments, we assume without deciding that these statutory requirements applied to suspensions by other states. Even if at the time a legally sustainable charge for the offense did require service verification and recordation, the fact that the officer did not or could not accomplish this did not diminish the probable cause furnished by the report which the officer received. Likewise, Carter’s alleged non-receipt of notice of license suspension, if not proved otherwise by the State, may have made conviction unsustainable, see Sumner v. State, 184 Ga. App. 374 (361 SE2d 536) (1987), but would not have affected the legality of his arrest on the charge.

As to the grounds raised in the supplemental brief, attacking the warrantless searches as being non-exigent and not incident to arrest, they are outside the scope of the enumeration of error, Smith v. State, 186 Ga. App. 303, 308 (3) (367 SE2d 573) (1988), they are an impermissible expansion of the original brief, Quick v. State, 166 Ga. App. 492, 493 (1) (304 SE2d 916) (1983), and they were not properly raised either by the motion to suppress or in the motion for “directed judgment,” as defendant called it, or “directed verdict,” as denominated by the opponent and the court.. Although counsel brushed up to these grounds at the close of the State’s evidence, he did not articulate them or invoke a ruling on them. This Court does not reach them.

Thus we hold that the trial court did not err in refusing to suppress the seized evidence, or in admitting it into evidence at trial, on the bases urged by appellant.

Judgments affirmed.

Deen, P. J., concurs dubitante. Pope, J., concurs specially.

Deen, Presiding Judge,

concurring dubitante.

I vote a reluctant concurrence in this case. The majority opinion relies mainly on State v. Brooks, 194 Ga. App. 465 (390 SE2d 673) (1990). In the latter case, appellant was initially arrested and charged with speeding, DUI, and driving with a suspended license. This is much stronger than in the instant case under consideration where the initial arrest or charge was driving while the license was suspended. The drug charges came later. The defendant was acquitted as to the charge on which he was first arrested, that is, driving while the license was suspended. I am reluctant to equate the two charges but concur nevertheless, although doubtfully.

“Rather than concurring only in the judgment (J/O), rendering this case a ‘physical precedent only’ under our Rule 35 (b) and a well qualified and worthy candidate for ‘not to be reported’ under Rule 37 (b), I vote here the seldom used but preferable, concurring vote of ‘dubitante’. The latter word in Black’s Law Dictionary, Fifth Edition, published by West, means: ‘Term is affixed to the name of a judge, in the reports, to signify that he doubted the decision rendered/ See several of many cases where judges of our Georgia Appellate Courts have concurred dubitante: Brandon v. Pritchett, 126 Ga. 286, 290 (55 SE 241) (1906); Stevens v. Stevens, 227 Ga. 410, 414 (181 SE2d 34) (1971); Studstill v. American Oil Co., 126 Ga. App. 722, 727 (191 SE2d 538) (1972); Jordan v. Fowler, 104 Ga. App. 824, 829 (123 SE2d 334) (1961). While I consider dubitante a weak concurrence, but nevertheless a full concurrence, in the case, it also has three laudable attributes and admirable advantages over the much used, presently popular J/O vote. (A) The case is a binding precedent under Rule 35 (b); (B) should always be reported under Rule 37 (a); and (C) usually provides the parties in the case, bench, bar, and public in general specific reasons for the reservations held by the judge. On the other hand, a J/O vote is like high blood pressure, a ‘case crippler’ sub silentio without explanation to anyone, a handy but deadly veto weapon or widget for busy judges. It has been said that voting dubitante is holding one’s nose while voting to concur, while the J/O is really a dissent as to all, but sometimes limited to less than all, comments and discussions in the case except the ‘judgment’ rendered.” Floyd v. State, 187 Ga. App. 27, 28 (369 SE2d 316) (1988). Compare “Concurrence in Judgment without Opinion” (J/O) and “Reluctant Concurrence.” Witkin, Manual on Appellate Court Opinions (West Pub. Co. 1977), §§ 115; 116, p. 223. The former is a J/O vote under our Court Rule 35 (b), while the latter reluctant concurrence is the same as concurring dubitante.

Decided July 3, 1990.

R. Avon Buice, for appellant.

Carl A. Veline, Jr., Solicitor, for appellee.

Pope, Judge,

concurring specially.

I write separately in response to the dicta contained in footnote 1 of the opinion. Although it is true that a “verdict” is not rendered in a bench trial, I know of no legal impediment to prevent a lower court sitting without a jury in a criminal case from granting a motion that judgment of acquittal be entered in defendant’s favor. In fact, a cursory review of cases rendered by this court reveals that lower courts when sitting as the trier of fact regularly entertain, and this court regularly reviews on appeal, motions for directed verdicts or judgments in criminal cases. See, e.g., Sanders v. State, 182 Ga. App. 581 (356 SE2d 537) (1987); Waters v. State, 177 Ga. App. 374 (339 SE2d 608) (1985); Moran v. State, 170 Ga. App. 837 (318 SE2d 716) (1984). In my opinion the problem is one of semantics or what to call such a motion in these type cases. Regardless of the nomenclature, I would not want to discourage the bench and bar from engaging in the practice of expeditiously disposing of those cases in which the State fails to meet its burden of proof.

       There is no such motion as one for a directed judgment in a bench trial recognized in Georgia criminal procedure. Whom would the court in a bench trial direct? A motion for directed verdict, on the other hand, is inappropriate when there is no jury. Smith v. General Motors &c. Corp., 98 Ga. App. 840, 841 (107 SE2d 334) (1959).


text:
    A90A0625.
    CHARLES EVANS BMW, INC. v. WILLIAMS.
    (395 SE2d 650)
   Carley, Chief Judge.

The relevant facts in this trover action are as follows: Appelleedefendant agreed to sell his car to an individual named Hodge and he accepted a cashier’s check from Hodge as payment. With no indication on the certificate of title that Hodge was the purchaser, appellee signed the title in his capacity as seller and then delivered that document and the car to Hodge. The next day, Hodge, representing himself to be appellee, offered to sell the automobile to appellant-plaintiff. When a price was agreed upon, Hodge presented to appellant the certificate of title bearing appellee’s signature as seller and appellant gave Hodge a check which named appellee as the payee. The check was cashed at a local bank when Hodge produced as identification a Kentucky driver’s license bearing the same number of the Kentucky driver’s license that had been issued to appellee. After the car had been purchased by appellant from Hodge, appellee was notified that the cashier’s check he had accepted from Hodge was a forgery. By the time that appellant was made aware of the fact that it had not actually purchased the car from appellee but from Hodge representing himself to be appellee, it had already resold the car. At the direction of the local police authorities, however, the car and the certificate of title were returned to appellant and the purchase price was refunded by appellant. Thereafter, appellant was further required to return the car to appellee. However, appellant retained the certificate of title and initiated this trover action against appellee.

On these facts, cross-motions for summary judgment were filed. The trial court denied appellant’s motion for summary judgment and granted summary judgment in favor of appellee. It is from that order that appellant brings this appeal.

1. We note at the outset that cases decided under the provisions of former Ga. Code Ann. § 96-101 et seq. are inapplicable to our consideration of this appeal. Those provisions were repealed in 1964 and, consequently, cases which were decided thereunder are not viable authority in the instant case. It is the provisions of OCGA § 11-2-101 et seq. that are controlling here.

OCGA § 11-2-403 (1) provides, in relevant part, that “[a] purchaser of goods acquires all title which his transferor had or had power to transfer. ... A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though: (a) The transferor was deceived as to the identity of the purchaser; or (b) The delivery was in exchange for a check which is later dishonored; or . . . (d) The delivery was procured through fraud punishable as larcenous under the criminal law.” (Emphasis supplied.) Appellee was not deprived of his car by a physical taking of which he was unaware. Compare First Nat. Bank of Cobb County v. Nat. Dealer Svcs., 155 Ga. App. 384 (270 SE2d 911) (1980). The undisputed evidence of record shows that appellee delivered his car under a transaction of purchase procured by the perpetration of a criminal fraud whereby he was deceived as to the identity of the purchaser who gave him a check which was later dishonored. In these circumstances, appellee conveyed voidable title to Hodge and Hodge, having voidable rather than void title, had the power to transfer good title to a good faith purchaser for value. OCGA § 11-2-403 (1) “empowers a purchaser with a voidable title to confer good title upon a good faith purchaser for value where the good[s] were procured through fraud punishable as larcenous under the criminal law. The distinction between theft and fraud in this context is found in the statutory definitions of ‘delivery’ and ‘purchase.’ Delivery concerns a voluntary transfer of possession, [OCGA § 11-1-201 (14)], and purchase refers to a voluntary transaction creating an interest in property. [OCGA § 11-1-201 (32)]. In the present case, [appellee] voluntarily relinquished possession to [Hodge]. As one commentator has pointed out, ‘[a] thief who wrongfully takes goods is not a purchaser . . . but a swindler who fraudulently induces the victim to voluntarily deliver them is a purchaser. . . .’ [Cit.]” (Emphasis in original.) Jernigan v. Ham, 691 SW2d 553, 556 (3, 4) (Tenn. App. 1984).

2. It follows that, if appellant was a good faith purchaser for value, it acquired good title to the car from Hodge.

“ ‘Good faith’ means honesty in fact in the conduct or transaction concerned.” OCGA § 11-1-201 (19). “ ‘Good faith’ in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.” OCGA § 11-2-103 (1) (b). There is ample evidence of appellant’s “good faith” in its transaction with Hodge. Appellant’s agent who actually negotiated the purchase neither knew nor had reason to know that Hodge’s representations were false. When appellant’s agent noticed an error on the registration form, Hodge was told that he would have to obtain a corrected registration form from the county. When Hodge left and returned with the corrected form, this gave additional credence to his representations that he was appellee and the owner of the car. Hodge also presented a certificate of title which bore appellee’s unforged signature as seller. The price that appellant agreed to pay for the car was not nominal. Appellant gave Hodge a check made out to appellee and Hodge was successful in cashing that check by using.a driver’s license bearing the same number of the license that had actually been issued to appellee. Thus, Hodge’s scheme to impersonate appellee not only duped appellant, but was also successful against the county and the bank.

In opposition, there was no evidence to show that, in negotiating and consummating the purchase from Hodge, appellant had been less than honest or had failed to observe reasonable commercial standards of fair dealing. Therefore, on the undisputed evidence of record, appellant was, as a matter of law, a good faith purchaser for value when it bought the car from Hodge. See generally Weinberg/Matheson Equities v. Charles S. Martin Distrib. Co., 180 Ga. App. 182, 183 (2) (348 SE2d 723) (1986). Compare United Carolina Bank v. Sistrunk, 158 Ga. App. 107, 109 (2) (279 SE2d 272) (1981).

Decided July 3, 1990.

Dennis & Corry, Robert E. Corry, Jr., Andrew H. Schultz, R. Clay Porter, for appellant.

Webb, Fowler & Tanner, Malcolm C. McArthur, Russell T. Bryant, for appellee.

3. Appellee urges that, even if appellant was a good faith purchaser for value when it originally bought the car from Hodge, appellant does not now occupy that status. The contention is that appellant now claims title to the car, not from Hodge, but from the individual to whom appellant eventually sold it. Since appellant had actual knowledge of Hodge’s fraud at the time that it returned the purchase price and accepted the car back from its purchaser, appellee urges that appellant cannot now be considered to be a good faith purchaser for value.

The transaction whereby appellant returned the purchase price and accepted the car back from its purchaser was not a repurchase of the car by appellant. See OCGA § 11-2-401 (4). It was a rescission of appellant’s sale of the car. Thus, even though appellant knew of Hodge’s fraud at the time of rescission, it does not now occupy the status of a “bad faith” repurchaser from its purchaser. It reoccupies its original status as a “good faith” purchaser from Hodge.

4. Under the undisputed evidence of record, appellant acquired good title to the car when it purchased it from Hodge and it retains that good title as against appellee who conveyed voidable title to Hodge. It follows that the trial court erred in granting appellee’s motion for summary judgment and in denying summary judgment in favor of appellant.

Judgment reversed.

McMurray, P. J., and Sognier, J., concur.


author: Pope, Judge.

text:
    A90A0628.
    BRANTLEY COMPANY v. SIMMONS
    (395 SE2d 656)
   Pope, Judge.

The Brantley Company, plaintiff below, appeals from the trial court’s grant of Ralph Simmons’ motion for judgment notwithstanding the verdict (j.n.o.v.). The jury had returned a verdict of $15,165.27 on an open account against defendant Simmons and co-defendant Jack Wall. At trial, plaintiff proceeded on the theory that Simmons had represented to its general manager that he and Jack Wall were partners in a farming venture and that Simmons had agreed to “stand good” for Wall’s debt. In his motion for j.n.o.v., Simmons argued that because there was no writing signed by him in which he promised to pay Wall’s debt, the Statute of Frauds was applicable and he could not be held liable. This was the basis upon which the trial court granted j.n.o.v. Held:

Decided July 3, 1990.

Gibson & Jackson, Douglas L. Gibson, for appellant.

W. Vincent Settle III, for appellee.

Plaintiff first argues that defendant’s motion for j.n.o.v. was based on a ground not raised in his motion for directed verdict as required by OCGA § 9-11-50 (b). Our review of the record shows that defendant’s motion for a directed verdict was on the basis that defendant never asked for any credit nor endorsed any credit and that under the UCC as it relates to retail sale of goods he could not orally agree to be responsible for the goods. The motion for j.n.o.v. was based upon the application of OCGA § 13-5-30, the Statute of Frauds. Although defendant argues his motion for directed verdict logically included § 13-5-30, we do not agree. OCGA § 9-11-8 (c) specifically lists the Statute of Frauds as an affirmative defense that must be raised by pleading or be waived. Beck v. Johnston, 118 Ga. App. 541 (164 SE2d 342) (1968); see also New House Products v. Commercial Plastics &c. Corp., 141 Ga. App. 199 (1) (233 SE2d 45) (1977). Defendant never raised the defense, either in his pleadings, by motion or in the pre-trial order. We agree with plaintiff that the language used by defendant in his motion for directed verdict did not contain the ground raised in his motion for j.n.o.v. and even if it had, under the authorities set out above, the defense had been waived. It follows that the trial court erred in granting j.n.o.v. Because OCGA § 13-5-30 was the only ground urged in support of the motion for j.n.o.v., we need not consider the merits of defendant’s alternative ground for directed verdict.

Judgment reversed.

Deen, P. J., and Beasley, J., concur.


author: Beasley, Judge. Deen, Presiding Judge,

text:
    A90A0644.
    CARPENTER v. CURTIS.
    (395 SE2d 653)
   Beasley, Judge.

Curtis sued Carpenter for fraud in the inducement (count one) and breach of contract (count two) arising out of the sale by Carpenter to Curtis of stock issued by Millwood Mouldings, Ltd., a privately held company. Curtis sought damages in the first two counts and rescission of the contract in the third count. Defendant Carpenter moved for partial summary judgment on rescission, which was granted, and on fraud, which was denied.

His application for interlocutory review of the denial was permitted.

Carpenter owned 80 percent of Millwood, a wood molding manufacturer. The company had continuing financial problems and Carpenter loaned it over $300,000 during 1985, evidenced by promissory notes. Millwood also procured $1,250,000 in industrial revenue development bonds which were purchased by First National Bank of Columbus. The bank then loaned an amount equal to the face value of the bonds to Millwood, which loan Carpenter personally guaranteed. Despite this, Millwood’s net assets were zero or less.

Carpenter determined to sell his shares and sent out solicitation letters. Curtis responded and met with Carpenter on three occasions, during which Carpenter showed Curtis the manufacturing equipment and the company’s inventory and explained the company’s operations.

Curtis then sent Carpenter a letter of intent which contained provision for Millwood to supply information to Curtis and provide access for him to inspect its plants, offices and records. Curtis sent his son, Dan P. Curtis, who had an accounting degree and work experience in that field, to inspect some of the current financial records of the company. The son reviewed the preliminary December 1985 financial statement. He found that some entries did not balance with Millwood’s subsidiary ledgers; there were variances pertaining to accounts payable and receivable. At his request they were redone. The son then prepared the company’s financial statements for January 1986, which showed a negative net worth of $86,758. Curtis himself reviewed some unaudited financial statements but otherwise did not conduct any further investigation of Millwood.

Through his attorneys, Curtis prepared a purchase and sale agreement for the stock. A merger or integration clause provided: “Agreement Complete-, . . . This Agreement contains the entire understanding between the parties hereto with respect to the transactions contemplated hereby; all prior negotiations and agreements between the parties hereto are superseded by this Agreement; and there are no representations, warranties, understandings, or agreements other than those expressly set forth herein, except as modified in writing concurrently herewith or subsequently hereto, which writing shall be executed by duly authorized officers of Buyer and Seller, respectively.”

Because of Millwood’s negative net worth, purchaser Curtis required that Carpenter, as a condition for proceeding with the transaction, invest an additional $60,000 in the company at closing. On February 28, 1986, the transaction closed with Curtis purchasing 55 percent of the company’s outstanding shares. As consideration, Curtis issued a letter of credit to Millwood for $150,000 and assumed 75 percent of the bank note guaranty by Carpenter, who retained 25 percent.

Curtis took control of the company and operated it for approximately 4 months when he elected to close down. Millwood had borrowed over $400,000 against the bond from First National, which called the debt due. Carpenter and Curtis honored their apportioned share of the guarantee and were assigned the security held by First National in Millwood’s assets. Curtis repossessed and sold Millwood’s assets at public auction, recovering some $80,000. He sold Millwood’s wood inventory and foreclosed on its real property. Ten months later he sued Carpenter.

Carpenter contends that Curtis’ proceeding under the contract for fraud is foreclosed because the merger clause controls, and that the trial court’s ruling of no basis for rescission disposes of the count predicated upon fraud.

Two actions are available to one who was fraudulently induced by misrepresentations into entering a contract: he can affirm the contract and sue for breach or seek to rescind and sue in tort for fraud and deceit. City Dodge v. Gardner, 232 Ga. 766, 768 (208 SE2d 794) (1974). Accord Brown v. Techdata Corp., 238 Ga. 622 (234 SE2d 787) (1977). Affirmance of the contract by the defrauded party does not necessarily deprive him of the right to sue for damages for fraud, as the right to affirm and the right to fraud damages coexist. However, he must do nothing to waive the fraud. Touche v. Dearborn, 161 Ga. App. 188, 191 (2) (291 SE2d 35) (1982).

One situation whereby a defrauded party accepts the contract with the fraud in it and thereby waives the fraudulent misrepresentations is where the contract contains a clause which provides in essence that no representation, promise or inducement not included in the contract shall bind any party. Condios v. Driver, 145 Ga. App. 537 (1) (244 SE2d 85) (1978). This is an entire agreement and the merger provision controls, preventing a fraud-in-the-inducement defense unless it can be shown that the party claiming fraud lacked knowledge of the contract’s contents. Del Mazo v. Sanchez, 186 Ga. App. 120, 124 (366 SE2d 333) (1988). Where a purchaser affirms a contract containing a merger provision, “he is estopped from asserting that he relied upon the seller’s misrepresentation and his action for fraud must fail.” Roth v. Bill Heard Chevrolet, 166 Ga. App. 583, 584 (305 SE2d 31) (1983).

The presence of a merger clause in the underlying contract is determinative if the defrauded party has not rescinded but has elected to affirm the contract. He is relegated to recovery under the contract, and the clause will prevail. If the party rescinded, the merger clause is avoided and will not prevent recovery under a tort theory. Potomac Leasing Co. v. Thrasher, 181 Ga. App. 883, 886 (2) (354 SE2d 210) (1987); Del Mazo v. Sanchez, supra at 128. Critical to rescission is the tender of benefits, the prompt restoration or offer to restore whatever the complaining party received by virtue of the contract OCGA § 13-4-60; Brown, supra at 626; Manget v. Cunningham, 166 Ga. 71, 87 (2) (142 SE 543) (1928).

These principles determine the outcome when applied to the factual situation. Carpenter asserts that Curtis is prevented from returning the parties to their pre-purchase status by his election to affirm the contract through purchasing the stock despite his misgivings about entries on the financial statements, by operating the company after learning of the alleged misrepresentations, and by closing the company and selling its assets.

Curtis, on the other hand, points out that while he might have been aware of some suspicious circumstances, it was not until after the company’s operations ceased that he became fully cognizant of the extent of Carpenter’s fraudulent misrepresentations because they were concealed by Carpenter’s further fraud. In particular he cites that he was misled as to the value and cost of three moulders and the value of inventory items. He alludes to an offer on June 18, 1989, to rescind the contract.

Curtis does not reference the record as to the purported offer to rescind, and no June 18, 1989, offer appears in it. But there is a letter dated June 18, 1986, offering to settle and return ownership. Curtis himself so characterizes it in his deposition testimony. If this is the document Curtis addresses, it does not support the contention that he has disavowed the contract. It cannot be considered an unconditional tender of benefits to Carpenter because shortly thereafter Curtis acted under the contract by using his status as majority stockholder to force dissolution of Millwood on July 14, 1986.

Curtis reached the fork of rescission or affirmance, equivocated, and chose to use the stock for his own ends rather than to return it to Carpenter and unravel the purchase. From this point forward he was committed to reliance on the contract and in fact never made any further effort to disclaim it except when he filed his complaint and included a rescission count over a year later.

Carpenter’s motion for partial summary judgment was filed on April 25, 1989, and judgment was entered on July 14. Curtis never established that, during any of this time, he ever offered to restore the status quo. The rescission count did not offer to restore Carpenter to his former status; it sought only restoration of Curtis’ pre-purchase status. He may not have known of the full extent of the alleged fraudulent misrepresentations at the time of closing, or later while he operated Millwood or even after its dissolution, but this would be of no avail. He was required to act promptly and restore or offer to restore what he received under the contract. He never did.

The trial court’s granting summary judgment on rescission as being without basis is uncontested and stands as final for the purposes of this appeal. State Farm &c. Ins. Co. v. Wendler, 120 Ga. App. 839, 842 (2) (172 SE2d 360) (1969).

With rescission no longer viable, Curtis, whether voluntarily or involuntarily, has elected to proceed under the contract. This brings into play the merger clause. Under it Curtis is “estopped from asserting that he relied upon the seller’s misrepresentations and his action for fraud must fail.” Guernsey Petroleum Corp. v. Data General Corp., 183 Ga. App. 790, 791 (1) (359 SE2d 920) (1987). Accord Roller-Ice v. Skating Clubs of Ga., 192 Ga. App. 140, 142 (384 SE2d 235) (1989); Weaver v. ABC Bus, 191 Ga. App. 614, 615 (1) (382 SE2d 380) (1989); Ouseley v. Foss, 188 Ga. App. 766, 768 (374 SE2d 534) (1988).

Together, the action taken by Curtis and the trial court’s conclusion that no grounds exist for rescission result in Carpenter’s entitlement to summary judgment on the fraud count.

Judgment reversed.

Deen, P. J., and Pope, J., concur specially.

Deen, Presiding Judge,

concurring specially.

I reluctantly concur with the judgment of the majority opinion. Although the disposition of this case is controlled by the rule regarding merger clauses applied by the majority opinion, I have some reservations about the wisdom and fairness qf that rule. The Supreme Court has made it clear that a merger clause does not bar an action to rescind a contract fraudulently induced, on the basis that fraud vitiates the contract, including a merger clause contained in it. City Dodge v. Gardner, 232 Ga. 766 (208 SE2d 794) (1974). If fraud can vitiate an entire contract where rescission is sought, perhaps our law ought to allow fraud to vitiate a merger clause where the defrauded party wishes to affirm the contract but seeks damages. In many instances, rescission is not an available remedy because a party will not be able to restore each party to. their original, pre-contractual positions. In such a case, if the contract happens to contain a merger clause, which is a fairly common feature, the defrauded party will have no remedy. In a very real sense, application of this rule can subsidize iniquity.

Decided July 3, 1990.

Alston & Bird, John I. Spangler III, for appellant.

Moore & Rogers, Stephen C. Steele, David P. Oliver, for appellee.

I am authorized to state that Judge Pope joins in this special concurrence.

       The later assertion is contradicted by the complaint. In it Curtis alleges that “[s]oon after the closing of the sale,” he realized that the representations made by Carpenter had been false.


text:
    A90A0693.
    GRAY v. ALTERMAN REAL ESTATE CORPORATION et al.
    (396 SE2d 42)
   Carley, Chief Judge.

Appellant-plaintiff was injured when he fell on commercial property owned by appellee-defendant Alterman Real Estate Corporation (Alterman) and leased by appellee-defendant Food Giant, Inc. (Food Giant). As the result of his fall, appellant filed suit against appellee Alterman and appellee Alterman filed a third-party complaint against appellee Food Giant. Appellees answered and subsequently moved for summary judgment. The trial court granted appellees’ motion for summary judgment and appellant appeals.

Construing the evidence most favorably for appellant, the record reveals the following: Appellant parked his vehicle in front of appellees’ premises. It is unclear whether he parked in a space within the designated parking area or in the actual driveway that separated the store from the designated parking area. In any event, appellant stepped out of his vehicle directly into a large pothole and immediately fell. He acknowledged that he had never looked down before he stepped from his vehicle directly into the pothole. Appellant’s explanation for not having done so was that he “was looking up and around to be able to avoid cars and trucks.” On this evidence, appellant urges that a genuine issue of material fact remains as to his recovery under a “distraction” theory.

The “distraction” theory “ ‘ “cover[s] situations where the plaintiff’s attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur.” ’ [Cit.]” Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 855 (1) (360 SE2d 415) (1987). “ ‘A possible confrontation with vehicular traffic on the property may be a significant “distraction” for a pedestrian-invitee on the premises.’ [Cits.]” (Emphasis supplied.) Magee v. Federated Dept. Stores, 187 Ga. App. 620, 621 (371 SE2d 99) (1988). At the time of his injury, however, appellant had yet to become a “pedestrian-invitee” on appellees’ premises. He stepped from his vehicle directly into the pothole and immediately fell. Whether one can safely exit from his vehicle is a determination which necessarily must precede the determination of whether one can safely walk across an area where vehicular traffic may be encountered. To open the door to one’s own vehicle and alight therefrom without having first checked for the presence of vehicular traffic would be to subject oneself voluntarily to a possible emergency situation. Accordingly, if appellant opened the door to his vehicle and alighted therefrom while he was simultaneously checking for the presence of vehicular traffic, the “distraction” was self-induced by a possible emergency situation which was entirely of his own creation. “ ‘One valid line of distinction existing in the so-called “distraction” cases concerns the cause of the distraction. Where the distraction is self-induced the plaintiff can no more take the benefit of it to excuse his lack of care for his own safety than one who creates an emergency can excuse himself because of its existence.’ ” Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473, 475 (249 SE2d 276) (1978). Before appellant even opened the door to his vehicle and took his first step out, he should already have determined whether the presence of vehicular traffic prevented him from safely doing so. Having first determined that he could safely exit his vehicle, it was then “incumbent upon [him], as a matter of law, to use [his] eyesight for the purpose of discovering any discernible obstruction or defect in [his] path. [Cits.]” Emory Univ. v. Duncan, 182 Ga. App. 326, 329 (2) (355 SE2d 446) (1987). It is undisputed that appellant failed to do so, having been “distracted” only by his own election to exit his vehicle while simultaneously checking to determine whether he may have already placed himself in an emergency situation.

In his affidavit, appellant also asserted that he had not seen the pothole because “the door [of his vehicle] obstructed [his] vision.” Undoubtedly, the door of appellant’s vehicle obstructed his view of the pothole at some unspecified point prior to his fall. The relevant inquiry, however, is whether appellant’s view of the pothole was obstructed at the point immediately before he was about to step into it. Appellant never testified that, after he opened the door of his vehicle, it had obstructed his view of the surface upon which he was about to step. Appellant testified instead that he had never looked down when stepping from his vehicle because he had been “distracted” by the possibility of encountering vehicular traffic. If the door did not physically obstruct appellant’s placement of his foot directly down into the pothole, it obviously would not have visually obstructed him from observing the pothole had he looked down prior to stepping into it. “It is generally incumbent upon one to use his eyesight for the discovering of any obstruction that may have been placed in the way. [Cits.]” Slaughter v. Slaughter, 122 Ga. App. 374, 379 (2) (177 SE2d 119) (1970). “ ‘(W)here (an obstruction) is perfectly obvious and apparent, so that one looking ahead would necessarily see it, the fact that the plaintiff merely failed to look will not relieve him from the responsibility for his misadventure.’ [Cit.]” Jones v. Richardson, 178 Ga. App. 49 (342 SE2d 12) (1986).

Decided July 3, 1990.

Bauer, Deitch & Raines, Henry R. Bauer, Jr., Gilbert H. Deitch, George R. Ference, for appellant.

Whitehurst & Frick, Stephen P. Riexinger, R. Patrick White, Thomas L. Holder, Gorby, Reeves, Moraitakis & Whiteman, Eve A. Appelbaum, Andy Nelson, for appellees.

The “plain view” doctrine “is that one is under a duty to look where he is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to be; not performing this duty may amount to a failure to exercise ordinary care for one’s safety as would bar a recovery for resulting injuries. [Cits.]” Stenhouse v. Winn Dixie Stores, supra at 474-475. Appellant had parked on appellees’ premises before and had seen potholes at various locations. On this occasion, however, he stepped out of his vehicle without looking to see whether he might be placing his foot in one of the potholes or some other defect on the paved surface. “ ‘The [pothole] was not a slight or inconspicuous one. . . . Whether (it) was dangerous depends largely on whether (it) was such as would not necessarily be seen by the plaintiff in the exercise of ordinary care. (It) was on the surface, not hidden, and could easily have been seen by the plaintiff had [he] been exercising ordinary care in observing where [he] was walking.’ [Cits.]” Slaughter v. Slaughter, supra at 379 (2). “ ‘The proof offered clearly puts this case within the line of cases involving the “plain view” doctrine and effectively eliminates any “distraction” theory. (Cits.)’ [Cit.]” Emory Univ. v. Duncan, supra at 328-329. It follows that the trial court correctly granted appellees’ motion for summary judgment.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


author: Cooper, Judge. Birdsong, Judge,

text:
    A90A0457.
    BENHAM v. THE STATE.
    (395 SE2d 658)
   Cooper, Judge.

Appellant and five co-defendants were tried before a jury on charges of violating the Georgia Controlled Substances Act. Following his conviction, appellant brings this appeal enumerating as error the denial of his motion to suppress.

The affiant/officer who applied for the search warrant stated in his affidavit that a reliable confidential informant had personally observed drugs being sold at a house located at 113 Bartow Street, which was the residence of a male named “Ronnie.” The affiant/officer corroborated this information by talking with another confidential informant, who told him that the house was known as a place “where you could by (sic.) anything you want” and by talking with a member of another local law enforcement agency, who told him that the residence was that of a man named “Ronnie Brown” and that he also had information from informants that there were sales of drugs going on at that location. Based on the affiant/officer’s statement that weapons were present at the residence, a “no-knock” search warrant was issued authorizing the search of the described residence. The relevant facts as adduced from the evidence at trial and the hearing on appellant’s motion to suppress show that the search warrant was executed as follows: The officer who applied for the search warrant along with six other officers from two local law enforcement agencies went to the residence of Ronnie Brown prepared to enter unannounced. However, due to a problem with the door handle, the officers were forced to knock on the door and upon gaining entry to the house, their presence was immediately announced by a female occupant of the house. The first officer inside observed one of the co-defendants running down the hall and pursued him into the bathroom, where the officer was able to retrieve three bags of crack cocaine from the recently flushed commode. The rest of the officers secured the residence by accounting for and patting down all of the occupants and having them kneel on the floor. Appellant and another co-defendant, who were sitting on the bed in the master bedroom when the officers entered, were also patted down and ordered to kneel next to the bed. All of the occupants of the house were searched individually, and the search of appellant revealed two plastic bags and a tinfoil packet, each containing crack cocaine.

Appellant contends that the bodily search done by the officers was not authorized because the search warrant did not authorize the search of any and all other persons found on the premises. Although the officer requested that the search warrant include all vehicles, buildings and persons located within the curtilage of the residence, the search warrant only authorized the search of the premises described therein. OCGA § 17-5-28 provides: “In the execution of the search warrant the officer executing the same may reasonably detain or search any person in the place at the time: (1) To protect himself from attack; or (2) To prevent the disposal or concealment of any instruments, articles or things particularly described in the search warrant.” “[T]o uphold a search of a person or vehicle not particularly described in the warrant, who is then on the premises, the State must demonstrate that the searching officer acted under one of the two statutory paragraphs justifying the expanded scope of his search. [Cit.]” Collins v. State, 187 Ga. App. 430, 432 (370 SE2d 648) (1988). The State argues that since the officers had already witnessed one of the co-defendants attempting to dispose of drugs in the commode, the search was justified to prevent the further disposal or concealment of contraband. We note at the onset that the record is devoid of any evidence that appellant was attempting to conceal or dispose of contraband and his close proximity to a trash can where drugs were also found does not demonstrate an attempt to conceal drugs, particularly in light of testimony that the drugs found in the trash can were packaged significantly different that those found on appellant. Nor does the record disclose that the patdown search of appellant led to the discovery of any object which the officers might reasonably have believed to be a weapon or concealed contraband. It is clear that the search warrant did not authorize the search of “other persons,” and in the absence of a reasonable belief that appellant was armed or concealing contraband, the fruits of the officer’s more extensive search should have been suppressed. Bundy v. State, 168 Ga. App. 90 (308 SE2d 213) (1983).

Judgment reversed.

Banke, P. J., and Birdsong, J., concur specially.

Birdsong, Judge,

concurring specially.

This special concurrence is written to stress certain matters which I deem important in the disposition of this case.

In addition to the facts stated by the majority, it is important to emphasize that the police in their affidavit requested a warrant which authorized them to search other persons found on the premises, but the magistrate signed a warrant which contained authorization to search the residence of a man named Ronnie. Thus, we are not asked to construe the scope of a warrant containing a general provision authorizing the search of anyone found on the premises.

Appellant was found sitting on a bed in the bedroom with another man. Both men were patted down for weapons; No drugs were found on appellant and neither was any object found on him which felt like a weapon. Appellant subsequently was subjected to a search, apparently based on the officers’ belief they were executing the terms of the search warrant, and at this time drugs were found on his person. The record is devoid of any testimony by the police officers that they had reason to believe appellant was armed and dangerous at the time he was searched, or that they had reason to believe appellant was in the possession of contraband which he might destroy or conceal.

Decided July 5, 1990.

Brett W. Ladd, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

This case clearly is distinguishable from Travis v. State, 192 Ga. App. 695 (385 SE2d 779) where appellant’s presence on the premises at the time the warrant was executed, coupled with his flight, provided probable cause for a belief that he was in possession of, or was at least a party to the possession of, unlawful contraband; thereby warranting his lawful custodial arrest and search pursuant thereto. Id. at 696. Likewise, Jenkins v. State, 184 Ga. App. 844 (363 SE2d 35) is distinguishable as, unlike the case sub judice, the Jenkins warrant authorized not only a search of the premises and two named individuals, but of “other persons” as well.

“A citizen does not, by mere presence at a suspect place, lose his constitutional right from unreasonable search of his person and his property to which he otherwise would be entitled.” Collins v. State, 187 Ga. App. 430, 431-432 (370 SE2d 648), citing United States v. Di Re, 332 U. S. 581 (2) (68 SC 222, 92 LE 210) and Wood v. State, 224 Ga. 121, 124 (160 SE2d 368). Even searches of “other persons” on premises being searched under a warrant are illegal, absent independent justification for a search of the person. Bundy v. State, 168 Ga. App. 90 (308 SE2d 213); Childers v. State, 158 Ga. App. 613 (281 SE2d 349); Wyatt v. State, 151 Ga. App. 207, 208 (259 SE2d 199); Hayes v. State, 141 Ga. App. 706, 708 (234 SE2d 360); Smith v. State, 139 Ga. App. 129, 130 (1) (227 SE2d 911); Brown v. State, 133 Ga. App. 500 (211 SE2d 438). The record fails to demonstrate a lawful basis for the subsequent search of appellant for drugs, conducted a short time after his legitimate but uneventful pat down for weapons. Accordingly, I concur with the majority.

I am authorized to state that Presiding Judge Banke joins in this special concurrence.


text:
    A90A0472.
    McNEAL v. THE STATE.
    (395 SE2d 660)
   Pope, Judge.

Defendant Willie James McNeal was indicted along with two others for felony murder and robbery in regard to a purse snatching incident in which the victim, an elderly woman, was injured and died the following day from a heart attack. The three co-defendants were tried jointly. One of the co-defendants was convicted of both offenses, although his conviction for the underlying robbery was vacated because it merged with the felony murder conviction. Defendant McNeal and the second co-defendant were convicted of robbery only. McNeal appeals.

1. During the voir dire of the jury, defendant’s attorney asked if any of the jurors had relatives or “close friends” whom they saw “pretty regularly and talked to” who are in law enforcement. One of the jurors had already identified himself as a security guard. He did not respond to the question about friends or relatives in law enforcement. Defendant argues the trial court erred in denying his motion for new trial because the juror’s failure to respond to the question was false or misleading.

At a hearing on defendant’s motion for new trial the juror testified he worked as a security guard for a downtown Atlanta bank. Approximately six months before the trial of the case, he met a Fulton County Deputy Sheriff who was assigned to work at the bank for a one-week period during the Democratic National Convention in Atlanta in July 1988. He only saw the deputy sheriff during this one-week period and on one or two other occasions when he went to the county administrative offices to apply for a job with the sheriff’s office. (The juror was not hired by the sheriff’s office.) The juror considered the deputy sheriff to be mérely an acquaintance and he testified that his acquaintanceship with the deputy did not prevent him from being impartial in the trial of the case. The testimony of the deputy sheriff at the hearing was consistent with that of the juror.

The undisputed testimony shows the juror and the deputy sheriff were not “close friends” and did not talk to each other “pretty regularly” and therefore the juror’s failure to respond to the voir dire question was not false or misleading. Cf. Martin v. State, 168 Ga. App. 623 (2) (309 SE2d 899) (1983); Falsetto v. State, 158 Ga. App. 392 (1) (280 SE2d 411) (1981); Pierce v. Aultman, 147 Ga. App. 22 (248 SE2d 34) (1978) (in which new trials were granted because the juror did not respond to the voir dire question truthfully).

2. We reject defendant’s argument that the trial court erred in refusing to admit into evidence the written transcripts and police report containing the prior inconsistent statements of a witness who identified defendant as one of the parties to the crime. The witness and the police officer were cross-examined concerning the prior inconsistent statements and the defendant’s attorney was allowed to read from the written documents during his closing argument to the jury. However, the court correctly ruled the written statements of the witness could not be taken into the jury room. See Heard v. State, 169 Ga. App. 609 (314 SE2d 451) (1984). Cf. Lane v. State, 247 Ga. 19 (4) (273 SE2d 397) (1981) and Proctor v. State, 235 Ga. 720 (221 SE2d 556) (1975) (in which the error in allowing a written statement to go out with the jury was harmless because the statement was consistent with the theory of the defense).

3. The court did not err in refusing to order the state to produce to defendant the actual tape recording of the witness’s inconsistent statement since a transcript of the statement had already been produced.

4. During his opening statement, the prosecuting attorney indicated that defendant McNeal’s photograph was added to a photographic lineup after the investigating officer interviewed one of the co-defendants. During the trial, the investigating officer testified he added co-defendant Thaxton’s photograph to a photographic lineup after the interview. However, the witness never actually testified that defendant McNeal was added to the photographic lineup. As to defendant McNeal, the officer merely testified that he arrested McNeal. Defendant argues the opening statement and the officer’s testimony violated his Sixth Amendment right to confront the witness because the co-defendant who provided the information to the officer did not testify. We disagree. First, the statement of the prosecuting attorney was not evidence. Secondly, the officer never testified that the co-defendant he interviewed identified or otherwise referred to defendant McNeal. The reference to the interview with the co-defendant merely explained the officer’s subsequent actions. Although the testimony established that the defendant became a suspect after the interview with the co-defendant, no evidence was presented of any statement or confession of the co-defendant which implicated the defendant. Thus, there was no violation of the rule in Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968), that the admission of a confession, which implicates defendant, by a co-defendant who does not testify at trial deprives the defendant of his Sixth Amendment right to confrontation.

5. One of the co-defendants was convicted of both robbery and felony murder, thereby showing the jury found sufficient proximate cause to link the victim’s death to the robbery. Thus, defendant argues his conviction of robbery was inconsistent with the acquittal of felony murder. However, the inconsistent verdict rule in criminal cases has been abolished. See Milam v. State, 255 Ga. 560 (2) (341 SE2d 216) (1986).

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.

Decided July 5, 1990.

John A. Pickens, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Keith L. Lindsay, Richard E. Hicks, Assistant District Attorneys, for appellee.

       The conviction of the co-defendant was affirmed by the Georgia Supreme Court in Thaxton v. State, 260 Ga. 141 (390 SE2d 841) (1990).


text:
    A90A0139.
    COBB COUNTY v. SEVANI.
    (395 SE2d 572)
   Carley, Chief Judge.

Pursuant to OCGA § 32-3-1 et seq,, appellant Cobb County (Condemnor) initiated condemnation proceedings against property in which appellee Sevani (Condemnee) held a leasehold interest. Being dissatisfied with the amount of estimated just and adequate compensation that Condemnor had paid into court, Condemnee filed a notice of appeal. Condemnee also filed a petition for an interlocutory hearing on the issue of whether the amount of estimated just and adequate compensation was sufficient. A special master was appointed and an interlocutory award of additional compensation was made. The interlocutory award was approved by the superior court and Condemnor paid the additional compensation into court. Condemnee’s appeal was subsequently tried before a jury and resulted in a verdict which was significantly greater than the amount of compensation originally paid into court, but also significantly less than the amount of compensation paid into court pursuant to the special master’s interlocutory award. Judgment was entered on the jury’s verdict, and Condemnee thereafter made a timely motion for an award of attorney’s fees pursuant to OCGA § 9-15-14. The superior court granted the motion, relying entirely upon the manner in which Condemnor had conducted the pre-acquisition appraisal and negotiations as the evidentiary basis for authorizing an award to Condemnee of OCGA § 9-15-14 attorney’s fees. Condemnor’s application to this court for a discretionary appeal from the superior court’s order was granted.

“The General Assembly may provide by law for the payment by the condemnor of reasonable expenses, including attorney’s fees, incurred by the condemnee in determining just and adequate compensation.” Ga. Const, of 1983, Art. I, Sec. Ill, Par. I (d). In 1986, the General Assembly enacted OCGA § 9-15-14 which provides that, under certain circumstances, a trial court is authorized to award attorney’s fees in “any civil action. . . .” According to Condemnee, enactment of OCGA § 9-15-14 evinces the legislative determination to provide for a recovery of attorney’s fees in a condemnation action. Condemnor, on the other hand, urges that the general provisions of OCGA § 9-15-14 cannot be construed as having any applicability in this or any other condemnation proceeding initiated by the state or its instrumentalities. See OCGA § 1-3-8. However, we need not determine the general applicability of OCGA § 9-15-14 in state-initiated condemnation proceedings. Even assuming that OCGA § 9-15-14 is otherwise generally applicable, that statutory provision is nevertheless not authority for the award of attorney’s fees that was made under the specific facts found by the superior court in the instant condemnation proceeding.

OCGA § 9-15-14 (a) provides, in relevant part, that a trial court is authorized to award attorney’s fees “to any party against whom another party has asserted a claim, defense or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.” (Emphasis supplied.) The focus of this provision is clearly upon actions that are undertaken in connection with the underlying legal proceedings, and not upon the pre-litigation actions of one who only subsequently becomes a party to a legal proceeding. The only “claim” that was ever asserted by Condemnor in the superior court was its right to condemn Condemnee’s property. The only “position” that was ever asserted by Condemnor in the superior court was that the amount originally paid into court represented “just and adequate compensation” for the exercise of that right. Condemnor’s legal right to condemn Condemnee’s property was never challenged in the superior court and the factual issue of “just and adequate compensation” was resolved by the jury, and not by the superior court. Condemnor’s pre-acquisition activities are totally irrelevant to the issue of whether it engaged in abusive litigation in the superior court. There being no finding that Condemnor ever asserted in the superior court “a claim, defense or other position” as to which there was no “justiciable issue of law or fact,” OCGA § 9-15-14 (a) is not authority for an award of attorney’s fees to Condemnee.

OCGA § 9-15-14 (b) provides, in relevant part, that a trial court is authorized to award attorney’s fees if “it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including but not limited to, abuses of discovery procedures. . . .” (Emphasis supplied.) It is clear that the focus of this provision is likewise upon the actions that may be undertaken in connection with the underlying legal proceedings and not upon any prelitigation actions of one who eventually becomes a party to a civil action. As noted previously, Condemnor’s legal right to bring this condemnation proceeding was unchallenged. Condemnee was certainly entitled to expand the proceedings by challenging the sufficiency of the amount of estimated “just and adequate compensation” paid into court. There was no finding by the superior court that, after the disputed factual issue of the amount of “just and adequate compensation” was presented for judicial resolution, Condemnor engaged in abusive litigation as defined in OCGA § 9-15-14 (b). The superior court erred in relying upon Condemnor’s pre-acquisition activities as authorizing an award of attorney’s fees to Condemnee.

Decided May 30, 1990

Rehearing denied July 6, 1990 — Cert, applied for.

Sams, Glover & Gentry, Richard W. Calhoun, for appellant.

H. G. Snipes, Furman Smith, Jr., for appellee.

If Condemnee believed that Condemnor’s pre-acquisition activities were abusive, he could have moved to set aside the declaration of taking. OCGA § 32-3-11; Department of Transp. v. Franco’s Pizza & Delicatessen, 164 Ga. App. 497 (297 SE2d 72) (1982). Condemnee could not, however, acquiesce in Condemnor’s taking of the property, proceed to trial before a jury on the issue of “just and adequate compensation,” and then move for attorney’s fees pursuant to OCGA § 9-15-14 based upon Condemnor’s alleged abusive pre-acquisition activities. The award to Condemnee of attorney’s fees pursuant to OCGA § 9-15-14 is erroneous and must be reversed.

Judgment reversed.

McMurray, P. J., and Sognier, J., concur.


text:
    A90A0333.
    WARD v. COASTAL LUMBER COMPANY, INC.
    (395 SE2d 601)
   Carley, Chief Judge.

Appellant-plaintiff entered into a timber sales agreement which provided, in relevant part, as follows: “In consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration in hand paid . . . , the receipt whereof is hereby acknowledged, [appellant] by these presents has granted, bargained, sold and conveyed . . . the following: All marked timber lying and being in [a certain tract belonging to appellant]. Also, all merchantable timber lying and being on [another certain tract belonging to appellant]. ... By execution of this agreement, [appellant] does acknowledge receiving the full amount of the purchase price and the receipt and sufficiency of said amount.” When this agreement was subsequently assigned to appellee-defendant, it entered onto appellant’s property and began to cut timber.

After appellee completed its cutting of timber, appellant initiated this action by filing a two-count complaint. The allegations of Count One of the complaint are somewhat ambiguous and it is unclear whether appellant purports to seek damages under a contract theory or a tort theory, or both. However, included therein is an allegation that appellee had committed a trespass and conversion by cutting and removing more timber from appellant’s property than was authorized under the contract. Count Two purported to allege a claim against appellee for abusive litigation. Appellee answered appellant’s complaint and subsequently moved for summary judgment as to both counts. This appeal is from the trial court’s grant of summary judgment in favor of appellee.

1. Insofar as appellant may seek to recover damages from appellee under a contract theory, the trial court correctly granted summary judgment in favor of appellee. The timber sales agreement that appellant signed is clear and unambiguous. By the terms thereof, appellant conveyed “all marked timber” on one tract and “all merchantable timber” on another. It is undisputed that appellant has received the full sum of money that was mutually agreed upon as consideration for his conveyance. Appellant cannot vary the agreement by parol evidence and now seek to recover from appellee more than was originally agreed upon as the consideration for his conveyance. Stonecypher v. Ga. Power Co., 183 Ga. 498 (1) (189 SE 13) (1936).

2. However, appellant conveyed only “all marked timber” and “all merchantable timber” and, to the extent that either unmarked or unmerchantable timber was cut and removed, appellant would have a viable tort claim for trespass and conversion. OCGA § 51-12-51; Henderson v. Easters, 178 Ga. App. 867 (345 SE2d 42) (1986). Accordingly, unless no genuine issue of material fact remains as to appellee’s liability under this tort theory, the trial court erred in granting summary judgment.

In its brief, appellee asserts that “[tjhere is no evidence in the record of any overcutting by [it] and [it] has never acknowledged any overcutting.” At trial, the initial burden will be on appellant to produce evidence that appellee acted in excess of its contractual authority and tortiously cut and removed unmarked and unmerchantable timber. On summary judgment, however, the initial burden was on appellee to produce evidence that it had not cut and removed unmarked and unmerchantable timber and, until this burden was met, it was not incumbent upon appellant to produce evidence that appellee had done so. Accordingly, the absence of any evidence that appellee did engage in “overcutting” is no basis for granting the motion for summary judgment unless there is evidence of record that appellee did not engage in “overcutting.” We are cited to no such evidence and our own review of record has revealed none. Accordingly, appellee has not met its burden of showing that no genuine issue of material fact remains as to its liability for tortious “overcutting.” It follows that the trial court erred in granting summary judgment in favor of appellee as to appellant’s tort claim for the cutting and removal of such timber as he did not convey.

Decided June 18, 1990.

Loftiss, Van Heiningen & Ward, Walter E. Van Heiningen, J. Patrick Ward, for appellant.

George C. Floyd, for appellee.

3. The trial court correctly granted summary judgment in favor of appellee as to appellant’s abusive litigation claim. The allegations of Count Two of appellant’s complaint do not state a viable claim for abusive litigation under OCGA § 51-7-80 et seq. but relate solely to appellee’s pre-litigation actions. See Cobb County v. Sevani, 196 Ga. App. 247 (_SE2d_) (1990) (construing OCGA § 9-15-14).

4. The trial court’s grant of summary judgment in favor of appellee is affirmed as to appellant’s contract and abusive litigation claims and is reversed as to appellant’s tort claim.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Sognier, J., concur.


author: Sognier, Judge.

text:
    A90A0653.
    STONE v. KING.
    (396 SE2d 45)
   Sognier, Judge.

Paul King filed suit against Ernest C. Stone to recover on a promissory note that had been executed by Stone, cosigned by King, and then assigned to King by the promisee after King paid Stone’s indebtedness. When Stone refused to execute a document memorializing a settlement agreement allegedly reached by the parties, King moved the trial court to enforce the agreement. After a bench trial, the court entered judgment for King on the terms of the settlement agreement. Stone appeals from the denial of his motion for new trial.

1. Appellant first contends the trial court erred by granting him an extension of time in which to file the trial transcript but then ruling on his motion for new trial after the extension had expired but before the transcript had been completed and filed. This enumeration is without merit, as the court “may in its discretion hear and determine the motion [for new trial] before the transcript of evidence and proceedings is prepared and filed,” OCGA § 5-5-40 (c), and we find no abuse of the court’s discretion here because given the short time period between the trial and the ruling on the motion, the trial evidence was fresh in the memory of the court. See McClure v. State, 163 Ga. App. 236, 237 (2) (293 SE2d 496) (1982).

2. Appellant’s contention that the evidence does not support the trial court’s conclusion that a settlement agreement had been reached is similarly without merit. Both appellee and Gary Moser, appellant’s counsel at the time, testified that the parties and their attorneys met on July 1, 1988 for depositions, but that after negotiations they reached agreement on a settlement whereby appellant would pay the balance owed on the note in monthly installments, with interest, and would dismiss his counterclaim for tortious interference with business relations. Pursuant to the agreement reached that day, Moser drafted the requisite documents and forwarded them to the parties for signing. The record reveals that appellee and his counsel signed the agreements, but appellant did not do so. He also failed to respond to a subsequent letter from Moser warning him of the consequences of refusing to execute the documents memorializing the parties’ agreement. Appellant testified that, while he gathered from the documents drafted by Moser that Moser had agreed to settle the case, he (appellant) had not agreed to the settlement because it required him to convey a security interest in inventory he previously had consigned to his wife. Appellant’s denial that agreement was reached is, however, immaterial because a settlement agreement is enforceable where it is undisputed that the attorney for the party denying agreement communicated acceptance of the settlement offer to the other party’s counsel but the first party subsequently denies having consented to the settlement. Brumbelow v. Northern Propane Gas Co., 169 Ga. App. 816-817 (315 SE2d 11) (1984). Accordingly, we affirm the trial court’s judgment. See id.

3. In his remaining enumerations appellant maintains the lower court erred by awarding attorney fees to appellee because appellee did not raise the issue in his motion for enforcement of the settlement agreement and because the evidence did not support the findings made by the trial court. The record reveals that appellee included a prayer for attorney fees under OCGA § 13-6-11 in his complaint. Although appellee’s motion to enforce the settlement agreement did not contain a request for attorney fees, evidence concerning the attorney fee obligation appellee had incurred in pursuing the motion was filed by appellee with no objection from appellant, and the issue was presented at the bench trial. The trial court found that appellant had acted in bad faith, had been stubbornly litigious, and had caused appellee unnecessary trouble and expense in connection with the settlement agreement, and accordingly awarded appellee attorney fees of $1,000.

While the attorney fee issue was tried by consent pursuant to OCGA § 9-11-15 (b), in Georgia expenses of litigation are not generally allowed as an element of damages, OCGA § 13-6-11, and thus the award of fees may be sustained only if authorized by law. OCGA § 13-6-11, which permits an award of attorney fees “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense,” has been held to apply to conduct “arising] from the transaction underlying the cause of action in litigation. [Cits.]” Ryle v. Sliz, 162 Ga. App. 868, 869 (293 SE2d 451) (1982). Conversely, OCGA § 9-15-14 (a), (b), which authorizes the recovery of attorney fee expenses incurred in responding to certain claims, defenses, or litigation tactics, has been interpreted to govern conduct occurring during the litigation. Cobb County v. Sevani, 196 Ga. App. 247 (_SE2d_) (1990).

Decided July 3, 1990.

William W. Turner III, for appellant.

Berrien L. Sutton, for appellee.

In the case at bar, appellee sought and was awarded attorney fees for his efforts in enforcing a settlement agreement. If appellee had filed suit solely to enforce the settlement contract, attorney fees would have been recoverable under OCGA § 13-6-11 upon proper proof. Cf. Clayton v. Deverell, 257 Ga. 653, 655 (5) (a) (362 SE2d 364) (1987) (authorized recovery of attorney fees under OCGA § 13-6-11 in action for specific performance of settlement agreement). Given, however, that appellee’s efforts to enforce the settlement agreement occurred during a pre-existing lawsuit, this conduct arose during the litigation, not as part of the underlying transaction. Because both the settlement agreement and the conduct at issue arose after the commencement of the litigation, we find that OCGA § 9-15-14 applies. See Cobb County, supra at 248-249; compare Franchise Enterprises v. Ridgeway, 157 Ga. App. 458, 460 (2) (278 SE2d 33) (1981) (held, when no bona fide dispute exists, forcing a plaintiff to file suit to recover constitutes unnecessary trouble and expense under OCGA § 13-6-11). Since appellee did not invoke the provisions of OCGA § 9-15-14 and the trial court did not make findings thereunder, the award of attorney fees must be reversed.

Judgment affirmed in part and reversed in part.

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


author: McMurray, Presiding Judge.

text:
    A90A0087.
    JONES v. SHAFER et al.
    (395 SE2d 662)
   McMurray, Presiding Judge.

William Shafer and Sharon Shafer (plaintiffs) brought an action against Cherokee Homes, Inc., and Bobby L. Jones (defendants), seeking damages for defects in a home which was allegedly sold to plaintiffs by defendants. Plaintiffs further alleged that defendant Jones induced them to execute the sales contract before certain landscaping and waterproofing defects were solved by giving them “express assurances that the condition would be corrected.” Defendant Jones admitted that he was the principal owner and officer of the corporate defendant and that the corporate defendant entered into a real estate sales contract with plaintiffs. However, defendant Jones denied liability to plaintiffs, contending that “he was not a party to [the sales] transaction.”

The case was tried before the court without a jury and, after considering the evidence, the trial court awarded plaintiffs $13,500. Defendant Jones appealed after the denial of his motion for new trial. Held:

In his sole enumeration, defendant Jones contends the trial court erred in finding that he was a party to the sales transaction between the corporate defendant and the plaintiffs, arguing that he executed the real estate sales contract in his corporate capacity and that, as a result, he has no personal liability for breaching the' contract.

It is unnecessary to address the issue of whether the trial court erred in finding that defendant Jones executed the sales contract in his personal capacity. The trial court also made a finding that defendant Jones personally “assured the Plaintiffs that they would have a dry basement. . . .” There was evidence to support this finding and it was sufficient evidence to sustain the verdict.

Where “[t]he trial judge sits as trier of fact, ... his findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them. Givens v. Gray, 126 Ga. App. 309, 310 (190 SE2d 607) and cits.” Comtrol, Inc. v. H-K Corp., 134 Ga. App. 349, 351 (2), 352 (214 SE2d 588). In the case sub judice, plaintiff William Shafer testified that defendant Jones “personally guaranteed . . . a dry basement” at the plaintiffs’ house. This evidence, and evidence showing that plaintiffs’ basement was never waterproofed, that the lack of waterproofing caused extensive water seepage into plaintiffs’ basement and that the cost of repairing the defect is $13,500, was sufficient to authorize a finding that defendant was personally responsible for the $13,500 waterproofing bill.

Judgment affirmed.

Sognier, J., concurs. Carley, C. J., concurs in the judgment only.

Decided July 6, 1990.

Robert E. Hall, for appellant.

Donald T. Salter, for appellees.