text:
    A93A0250.
    DEPARTMENT OF TRANSPORTATION et al. v. GILMORE.
    (434 SE2d 114)
   Smith, Judge.

The following chronology is relevant to the disposition of this appeal: After Gilmore fell from a highway overpass, he named appellant-defendants, the Department of Transportation (DOT), individual DOT employees, and various contractors, in this tort action. The complaint alleged generally that appellants negligently had failed to provide any lighting, warning, or other protective device along the height of slope from which Gilmore had fallen. It was also alleged that the affidavit of an expert was unavailable for contemporaneous filing but would be forthcoming within 45 days, expressly invoking the extension-of-time provision of OCGA § 9-11-9.1 (b). DOT was served with the summons and complaint on May 21,1992 and it appears that each appellant was served no later than May 25, 1992.

Gilmore filed on June 10 the affidavit of an engineering expert who expressed the opinion that the builders and designers of the overpass were negligent in not providing lights and safety barriers. On June 18, within 30 days of service of process, defendant Raymond Construction Company, a nonparty to this appeal, filed its answer to the complaint. However, DOT and its employees did not file their joint answer until July 9, 1992. Unknown to DOT, on the morning of July 9, Gilmore had obtained a default judgment against appellants, ostensibly pursuant to OCGA § 9-11-55 (a) for their failure to file an answer within 45 days from service of the complaint. Although DOT moved to set aside the default judgment, the trial court declined to rule on that motion before the end of 30 days from the entry of the default judgment. But see Johnson v. Barnes, 237 Ga. 502, 503-504 (1) (229 SE2d 70) (1976); Mathis v. Hegwood, 169 Ga. App. 547, 548 (314 SE2d 122) (1984) (a proper motion to set aside a judgment pursuant to OCGA § 9-11-60 (d) extends the time for filing a notice of appeal to enumerate as error the denial thereof). Pursuant to a valid extension of time, appellants filed a timely notice of appeal and enumerate as error the entry of default judgment.

1. After the hearing on appellants’ motion to set aside the default judgment but before the filing of the notice of appeal, Gilmore filed what purported to be voluntary dismissals without prejudice as to DOT and the individual DOT defendants. We express no opinion as to the validity and effect of these dismissals entered subsequent to a hearing at which Gilmore presented evidence and obtained a default judgment, except to conclude that, in the absence of the written permission of the trial court to dismiss after the presentation of evidence, OCGA § 9-11-41 (a), the purported voluntary dismissals do not deprive this court of jurisdiction over the appeal on the basis that the issues raised therein have been rendered moot. OCGA § 5-6-48 (b) (3).

2. The trial court erred in entering default judgment on the ground that appellants’ answer was untimely filed. OCGA § 9-11-55 (a) provides in pertinent part: “If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default unless the time for filing the answer has been extended as provided by law.” (Emphasis supplied.) OCGA § 9-11-12 (a) provides that the defendant “shall serve his answer within 30 days after the service of the summons and complaint upon him, unless otherwise provided by statute.” (Emphasis supplied.) Contrary to Gilmore’s contention, OCGA § 9-11-9.1 (c) provides such an applicable extension of time within which to file the answer: “If an affidavit is filed after the filing of a complaint, as allowed under subsection (b) of this Code section, the defendant shall not be required to file an answer to the complaint and affidavit until 30 days after the filing of the affidavit.” (Emphasis supplied.)

The process of building and designing roads requires engineering services which have been described as the performance of professional services within the purview of OCGA § 9-11-9.1. See Jackson v. Dept. of Transp., 201 Ga. App. 863, 865 (412 SE2d 847) (1991); Jordan, Jones & Goulding, Inc. v. Wilson, 197 Ga. App. 354, 355 (1) (398 SE2d 385) (1990). However, the applicability of the extension of time provided by OCGA § 9-11-9.1 (c) is not, as Gilmore contends, dependent upon an ultimate judicial determination of whether the complaint alleges an action sounding in simple negligence or whether, in truth, the viable theory of liability is professional malpractice. Nor does it require a defendant, such as the appellants here, to accept a Hobson’s choice of filing a skeletal answer which must be amended to address the specifications of negligence as averred in any subsequently filed expert’s affidavit. Compare OCGA § 9-11-12 (e).

Such a distinction would require a defendant against whom multiple theories of liability are alleged to file two answers, one responding to simple negligence and a subsequent answer responding to allegations of professional malpractice. “This would be nonsense. People would laugh at the law if it required any such thing.” Fletcher Guano Co. v. Vorus, 10 Ga. App. 380, 382 (73 SE 348) (1912).

The Civil Practice Act applies the principles of notice pleading, and “[a]ll pleadings shall be so construed as to do substantial justice.” OCGA § 9-11-8 (f). There is only one answer required to be filed. OCGA § 9-11-7 (a). Here, Gilmore made the same general allegations of negligence against all defendants. The complaint expressly invoked the extension of time in which to file an expert’s affidavit. This necessarily invoked the related provision that the defendants “shall not be required to file an answer to the complaint and affidavit until 30 days after the filing of the affidavit.” OCGA § 9-11-9.1 (c). Gilmore’s reliance upon Greene County Hosp. Auth. v. Turner, 205 Ga. App. 213 (421 SE2d 715) (1992), is misplaced. Neither the question of applicability of the expert’s affidavit as a pleading requirement nor the propriety of dismissing the complaint as provided in OCGA § 9-11-9.1 (e) in actions against engineers is germane to the issues raised in this appeal. In this action, the express invocation of the 45-day extension of time to file an expert’s affidavit, allegedly because of the imminent running of the statute of limitation and the time constraints in obtaining the affidavit, as provided by OCGA § 9-11-9.1 (b) , caused the time to file an answer to the complaint and affidavit to be extended for the 30-day period as provided by OCGA § 9-11-9.1 (c) , and appellee is estopped to argue otherwise. See OCGA § 24-3-30. Appellants’ answer was timely because it was filed within the time as extended pursuant to OCGA § 9-11-9.1 (c).

The applicability of this holding is necessarily limited to those defendants against whom professional malpractice is alleged or implied. In an action involving multiple defendants alleging professional malpractice against some, but not all, the 30-day extension for filing an answer applies only to the malpractice defendants. Inasmuch as the requisite affidavit for malpractice claims has no bearing on purely simple negligence claims, a plaintiff’s invocation of OCGA § 9-11-9.1 (b) would not extend the deadline for answering the complaint for defendants against whom only simple negligence is alleged.

3. Remaining enumerations of error have been considered and are found to be moot.

Judgment reversed.

Johnson and Blackburn, JJ., concur.

Decided July 6, 1993 —

Reconsideration denied July 26, 1993 —

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, C. Latain Kell, Assistant Attorney General, for appellants.

Buchanan & Land, Jerry A. Buchanan, Charles A. Gower, Taylor & Harp, J. Sherrod Taylor, Jefferson C. Callier, for appellee.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A93A0497.
    JAMES et al. v. ALLSTATE INSURANCE COMPANY.
    (434 SE2d 526)
   Smith, Judge.

Mary, Holly, and Quinton James appeal the grant of partial summary judgment in favor of uninsured motorist (“UM”) carrier Allstate Insurance Company as to claims based on various tort theories that Allstate overcharged them and other policyholders for their multi-vehicle UM coverage. We affirm.

Appellants’ pleadings assert that Allstate is liable for unearned premiums and punitive damages under theories of money had and received, unjust enrichment, deceit, and/or fraud. The single automobile insurance policy insured the James’s four vehicles. UM bodily injury protection was provided on a per vehicle basis, with an additional premium expressly charged for each vehicle so insured. The first vehicle had “15/30/10” UM bodily injury coverage at a rate of $25.30 per coverage period. The second and subsequent vehicles were each insured for additional premiums of $20.20 per coverage period. In addition, the policy expressly limited UM coverage to the amount provided for a single vehicle and expressly provided that insuring more than one person or vehicle would not increase the insurer’s liability limits. The separate premiums charged for additional vehicles did not decrease dramatically from that charged for the first. Allstate responds that its premium structure reflects actuarial data showing a close relationship between UM losses and the number of vehicles insured under a policy, and that the rates charged merely reflect this relationship.

An insured may “stack” multiple policies of UM coverage to recover actual loss within the combined coverage limits of multiple policies. However, where, as here, there is but one policy insuring multiple vehicles, such stacking or pyramiding is generally not permitted. Ga. Farm &c. Ins. Co. v. Owens, 178 Ga. App. 446 (343 SE2d 699) (1986). The appellants argue that no consideration is received for the additional premiums inasmuch as the “stacking” of coverages is prohibited. As observed in Doerpinghaus v. Allstate Ins. Co., 124 Ga. App. 627 (185 SE2d 615) (1971), however, additional consideration is received in the form of UM coverage for persons other than the named insured occupying any of the several vehicles covered by the policy. We find that valuable additional consideration was received here for the additional premiums voluntarily paid for such coverage. Appellants’ assertion that Allstate accepted money with no intention of ever providing coverage is without merit. Doerpinghaus, supra.

Decided July 12, 1993 —

Reconsideration denied July 26, 1993 —

Rand & Ezor, Kenneth I. M. Behrman, for appellants.

Webb, Carlock, Copeland, Semler & Stair, David F. Root, Alston & Bird, Richard T. Fulton, Charles W. Wrinkle, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A0513.
    RUSSELL CORPORATION et al. v. BANCBOSTON FINANCIAL COMPANY.
    (434 SE2d 716)
   Smith, Judge.

The Russell Corporation and Gulf South Petroleum, Inc., (the companies) engaged in the petroleum wholesale business. In 1985, BancBoston Financial Company (the bank) established a revolving line of credit in favor of the companies, secured in part by their inventory, accounts receivable, and certain real estate. The companies applied advances from this line of credit to pay their petroleum suppliers and also to purchase additional real estate.

In 1989, the companies were routinely issuing checks creating liabilities in excess of the amount available under the line of credit. In December 1989, the companies and the bank entered into an agreement (the letter agreement) providing, in part, for a modification of the line of credit in an amount contingent upon the outcome of a third-party appraisal of the real estate holdings offered as collateral. Based upon the appraisals, the bank determined that the companies had exceeded the maximum available credit by over $2,000,000 and demanded immediate payment in an amount sufficient to bring the companies within the allowable range of credit.

When the companies were unable to make this payment, the bank declared the entire outstanding balance thus far extended to be in default and initiated this action to foreclose upon the real property securing the loan. The companies answered and counterclaimed, alleging a variety of claims, including breach of contract, fraud, duress, tortious interference with business relations, breach of fiduciary duty, RICO violations, and a claim for punitive damages and attorney fees. Following substantial discovery, the bank moved for summary judgment as to each counterclaim. After a hearing, this motion was granted in its entirety by the trial court, and the companies appeal.

Under the original agreement, all advances made against the line of credit were discretionary with the bank. The maximum principal amount was called the borrowing base, and was an amount which fluctuated daily. “Overadvances” were defined as “advances in excess of the borrowing base,” and the decision whether to honor requests in excess of that borrowing based was solely the bank’s. All over-advances were payable on demand. The companies expressly waived any notice requirements. Under the letter agreement, which modified and incorporated the original agreement, the parties agreed that the original loan was overadvanced and that although under the original agreement the bank was “not obligated to fund or carry over-advances,” it now agreed to do so under the terms and conditions specified. The borrowing base was equal to the lesser of $18,500,000 or an amount determined by the sum of assigned values for inventory, accounts receivable, and specific parcels of real estate pledged as collateral.

According to the formula agreed upon by the parties, the real estate would be appraised as if announced for “90-day quicksale,” defined as the amount which could be received in cash at the end of a 90-day marketing period. The letter agreement further provided that the bank would continue to fund overadvances until it had received the quicksale appraisals of the companies’ realty. Upon receipt of the quicksale appraisals, the bank determined that these values, when incorporated into the borrowing base, would be insufficient to authorize the companies’ demand for additional borrowing. The companies still had overadvances in an amount exceeding $2,000,000.

At that point, pursuant to the letter agreement, the companies were deemed to be on notice that no further overadvances would be honored by the bank and that all existing overadvances were subject to immediate demand for payment.

Before ceasing to honor additional demands for overadvances and before demanding immediate payment, the bank permitted the companies to examine the appraisals and to make comments and suggestions in an effort to convince the appraiser that higher values were authorized. The appraiser considered these criticisms and made certain adjustments to the values. Nevertheless, using these final appraisal figures, the bank deemed the companies to have substantial overadvances outstanding and demanded an immediate payment of nearly $2,700,000. It also refused to honor new demands for additional overadvances in the form of checks drawn by the companies against the line of credit.

1. “[A]t summary judgment, a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. . . . [S]ummary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in [that] light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991). In the absence of special circumstances, there is no fiduciary relationship between a bank and its borrowers. Curtis v. First Nat. Bank of Commerce, 158 Ga. App. 379, 380-381 (1) (280 SE2d 404) (1981). The trial court correctly determined that there was no evidence of special circumstances imposing upon the bank the duties of a fiduciary in favor of the companies under OCGA § 23-2-58. See Cochran v. Murrah, 235 Ga. 304, 306 (219 SE2d 421) (1975). Summary judgment as to any claim for breach of fiduciary duty was correct.

2. The trial court correctly determined that there is no genuine issue as to the companies’ claims for fraud, duress, and coercion. The letter agreement is brief, and its terms are clear. These terms include an admission that the loan is overadvanced, an agreement that the bank had no obligation to honor new demands for overadvances upon receipt of the quicksale appraisals, the express exclusion from the borrowing base of certain properties the companies had wished to borrow against, and an express general release of the bank for any acts preceding the execution of the letter agreement.

The companies enjoyed the benefits of such continued over-advances as were allowed pursuant to the December 4, 1990 letter agreement, and have made no tender of those benefits. They have thus ratified the letter agreement, resulting in a waiver of any defense predicated upon fraud in the inducement, duress, or coercion, or fraud in the calculation of the overadvances. General Motors &c. Corp. v. Bowen Motors, 167 Ga. App. 463, 467-468 (1C) (306 SE2d 675) (1983); Swint v. Adams, 42 Ga. App. 705, 706 (157 SE 249) (1931). Any oral representations by a bank officer during negotiations were superseded by the subsequent writing and provide no basis for reasonable detrimental reliance on an understanding contrary to that writing. First Nat. Bank &c. Co. in Macon v. Thompson, 240 Ga. 494, 495 (241 SE2d 253) (1978).

3. As noted previously, all overadvances were payable upon demand. Since the companies admitted in the letter agreement the existence of overadvances, in an unspecified sum, the demand for payment of any and all overadvances was clearly not a breach of contract by the bank. Likewise, the refusal to honor new demands for over-advances after the bank had received the quicksale appraisals was within the bank’s rights under the letter agreement. Contrary to appellant’s assertions, the bank did not have an unconditional obligation to fund overadvances up to $4,000,000, once it had received the appraisals. The original agreement provided that forbearance by the bank would not be a waiver, so no quasi new agreement was created when the bank accepted the companies’ criticisms of the appraisals and incorporated them into the borrowing base before demanding payment for overadvances calculated at over $2,000,000. The trial court correctly determined that no question of fact existed as to whether the bank had breached its agreement with the companies by making its demand for payment of overadvances, and summary judgment as to that counterclaim was proper.

4. In order to state a claim under a theory of intentional interference with business relations, it is necessary to show, in part, that the alleged intermeddler acted improperly and without privilege. Nilan’s Alley v. Ginsburg, 208 Ga. App. 145, 146 (2) (430 SE2d 368) (1993). See also Arford v. Blalock, 199 Ga. App. 434, 440 (13) (405 SE2d 698) (1991). “ ‘The exercise of an absolute right or privilege is recognized as being closely akin to the question of justification, but it is inherently different therefrom in that such a right can be exercised without incurring liability regardless of the motive for so doing. It is generally held that no liability for procuring a breach of contract exists where the breach is caused by the exercise of an absolute right — that is, an act which a [person] has a definite legal right to do without any qualification.’ [Cit.]” Schaeffer v. King, 223 Ga. 468, 470 (155 SE2d 815) (1967). Since the bank merely asserted its contractual rights in refusing to honor new demands for additional overadvances, one consequence of which was that appellants no longer were able to pay their suppliers, the trial court correctly granted summary judgment as to the counterclaim for tortious interference with business relations. See A. L. Williams & Assoc. v. Faircloth, 259 Ga. 767, 769 (2c) (386 SE2d 151) (1989).

5. There is no evidentiary basis for a civil violation of the Georgia RICO statute, OCGA § 16-4-1 et seq., and relief was appropriately denied as to this counterclaim. See OCGA § 16-14-5 (a).

6. Since no elements of damage alleged in appellants’ counterclaims are recoverable, the trial court correctly granted summary judgment as to their claims for attorney fees and the expenses of litigation under OCGA § 13-6-11. Bigelow-Sanford Carpet Co. v. Goodroe, 98 Ga. App. 394, 401 (5, 6) (106 SE2d 45) (1958). The absence of any recovery of compensatory damages likewise precludes any award of punitive damages. Viau v. Fred Dean, Inc., 203 Ga. App. 801, 804 (4) (418 SE2d 604) (1992).

Decided June 23, 1993 —

Reconsideration denied July 26, 1993 —

Decker & Hallman, F. Edwin Hallman, Jr., Steven M. Mills, for appellants.

Nelson, Mullins, Riley & Scarborough, Kenneth L. Millwood, Scott K. Tippett, B. Shane Clanton, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Cooper, Judge.

text:
    A92A1975.
    EAST PIEDMONT 120 ASSOCIATES, L. P. et al. v. SHEPPARD.
    (434 SE2d 101)
   Cooper, Judge.

Appellants sued Ray and Clara Joy Sheppard for fraud and breach of an alleged oral agreement to form a joint venture to develop Mrs. Sheppard’s land into a shopping center. On appeal, appellants challenge an order of the trial court granting summary judgment for Mrs. Sheppard (“appellee”) and declaring her real property free from any claim of lien.

Viewing the facts in a light most favorable to appellants as nonmovants on a motion for summary judgment, it appears that Asa G. Candler V, Asa G. Candler VI, Richard B. Candler and William R. Candler, all doing business as the Candler Development Company (“appellants”), were engaged in the business of locating and developing sites for shopping centers with Publix Super Markets as anchor tenants. After a number of meetings with Ray Sheppard, appellants entered into an oral joint venture agreement with him on August 2, 1991. Pursuant to this oral agreement, Ray Sheppard was to contribute a particular parcel of land to the joint venture and appellants would contribute their expertise, services and relationship with Pub-lix. The specific terms of the agreement were not addressed at that time, but the intent to create the joint venture was memorialized in a Letter of Intent executed by appellants and Ray Sheppard that same day. At some point, appellants learned that the land was in fact owned by appellee rather than Ray Sheppard. Based on Ray Sheppard’s actions and declarations, however, they assumed the land was in appellee’s name for tax purposes only and that Ray Sheppard had complete authority to manage, control and dispose of it. After the alleged oral agreement was made, appellants secured approval of the site by Publix, engaged an architect to prepare a site plan and conducted engineering studies. In January 1992, appellants’ attorney drafted a proposed written joint venture agreement that purportedly reflected negotiations with Ray Sheppard. When the written document was presented to appellee, however, she found it unacceptable, primarily because it did not provide for any payment up front for the contribution of her land. Appellants then offered to purchase the property, but appellee rejected this offer as well because it did not give her the immediate cash she needed. After the Sheppards notified appellants that they intended to pursue other options for appellee’s $1.6 million parcel of land, appellants brought this action, seeking damages as well as an equitable lien on the land. In their sole enumeration of error, appellants contend the trial court erred in ruling that there was no issue of fact as to whether there was a joint venture agreement binding on appellee and her land.

Essentially, appellants seek to enforce Ray Sheppard’s oral promise to convey an interest in land, and to bind appellee by that promise on the theory that Ray Sheppard had authority to act as her agent. However, oral promises to convey interests in land are unenforceable under the Statute of Frauds. OCGA § 13-5-30 (4). Although partnership or joint venture agreements need not be in writing as a general matter, see Vitner v. Funk, 182 Ga. App. 39 (2) (354 SE2d 666) (1987), the fact that promises covered by the Statute of Frauds are made in the context of a partnership or joint venture agreement does not render the statute inapplicable. See id.; Shivers v. Barton & Ludwig, Inc., 164 Ga. App. 490 (296 SE2d 749) (1982). In Shivers, the plaintiff tried to sue the defendant as a partner in a partnership formed for the purpose of dealing in interests in land, arguing that one of the partners who signed the partnership agreement was acting as the defendant’s agent. There was no document authorizing the purported agent to act for the purported principal. Under these circumstances, we held that the agreement creating the partnership for the purpose of dealing in interests in land had to be executed in writing under the Statute of Frauds; that a purported agent’s authorization to enter into such an agreement on behalf of a purported principal also would have to be in writing under OCGA § 10-6-2; and that “ ‘(o)ne entering into (such a) contract executed by an agent in behalf of a purported principal is charged with notice that the agent’s authority to execute the (agreement) is required by law to be in writing and is under a duty to inquire and ascertain whether such written authority exists and what the limits of the authority are, and such person is guilty of negligence in failing to make such an inquiry.’ [Cit.]” Id. at 492.

Appellants cite Darby v. United States, 496 FSupp. 943 (S. D. Ga. 1980), for the proposition that real property may be contributed to a partnership or joint venture by oral agreement. However, neither Darby, which involved the question of whether or not a piece of real property which had been contributed to a partnership without a writing should be taxed as part of a decedent’s estate, nor the cases cited in Darby involved the issue presented here: the actual enforcement of an unkept promise to contribute real property to a partnership or joint venture set up for the purpose of developing and marketing that property. Under the facts of this case, Shivers rather than Darby controls, and the Statute of Frauds applies. The evidentiary and cautionary purposes of the statute — to prevent fraud and perjury on the one hand and to ensure that parties are aware of the serious consequences of their actions on the other — are implicated when a promise to convey an interest in land is made in the context of a partnership or joint venture agreement just as they are when such a promise is made in any other context.

Decided July 2, 1993 —

Reconsideration denied July 28, 1993 —

Snellings & Ferguson, Stanley T. Snellings, Ian H. Miller, for appellants.

Dupree, Johnson & Poole, Hylton B. Dupree, Jr., Mark A. Johnson, for appellee.

Furthermore, the fact that Ray Sheppard was appellee’s husband did not negate the need for a written authorization to convey or promise to convey any interest in appellee’s land. See Deal v. Dickson, 232 Ga. 885 (1) (209 SE2d 214) (1974). It is undisputed that Ray Sheppard had no written authorization and that appellants never asked for one. Accordingly, the trial court properly ruled that agency could not be established as a matter of law and that appellee’s property was free from any claim of lien, and thus properly granted summary judgment as to appellee and her land.

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.


author: Birdsong, Presiding Judge.

text:
    A93A0095.
    SO et al. v. LEDBETTER.
    (434 SE2d 517)
   Birdsong, Presiding Judge.

This consolidated discretionary appeal was granted to review the judgment of the superior court affirming the decisions of the Commissioner of the Department of Human Resources (“DHR”) disqualifying Young Sun So d/b/a Alex Supermarket, vendor no. 2416; Young Chi Ahn d/b/a Dixie Hill Supermarket, vendor no. 2514; Seung Sup Chi d/b/a Shopper’s Market #3, vendor no. 2496; Chang K. Kwak d/b/a Stan’s Market, vendor no. 2443; and Kye W. Lee d/b/a Family Supermarket, vendor no. 2267 from participating in the Women, Infants, and Children Program (“WIC”) for a period of 540 days because they were found to have violated their WIC vendor agreements by overcharging on WIC food vouchers. All appellants are Korean immigrants who speak English as a second language, and are owners or managers of grocery stores in Fulton County, Georgia, that participated in the WIC program as food vendors.

WIC is a program of the U. S. Department of Agriculture (“USDA”) authorized under the Child Nutrition Act of 1966 (42 USC § 1786 et seq.) to assist women, infants, and children from families with inadequate income with supplemental food and nutrition education through grants to state agencies. In practice, eligible participants in the WIC program receive WIC vouchers which are used to obtain food specified on the approved food list (milk, juice, cereal, etc.) from vendors who are approved to participate in the WIC program. WIC vouchers are given to the vendors to pay for food as if they were checks and the vouchers are processed through the banking system for payment. Vouchers are valid only for foods on the WIC food list and must be countersigned by the participants for the food items set forth on the voucher in the amounts and prices stated on the vouchers when food is obtained from the vendors.

The WIC program is funded fully by the federal government, but under 7 Code of Federal Regulation (“CFR”) § 246.3 (b), USDA has delegated administration of the program to the states. In Georgia, administration of the program was delegated to DHR and USDA requires DHR to monitor food vendors in the program and to establish policies for imposing sanctions against vendors for violating the program rules. 7 CFR § 246.12 (i) and (k).

Before being allowed to participate as WIC food vendors, appellants executed agreements with DHR which contained the terms and conditions under which they would participate in the program. Among other provisions, each appellant agreed that the actual cost of the WIC foods sold would be entered on the WIC vouchers. The vendors also agreed to send representatives to training sessions on the WIC program and to train their employees on the operation of the program. Moreover, the vendors agreed to abide by all WIC rules and regulations, to follow the WIC vendor handbook, and to be accountable for their employees’ actions in using WIC vouchers.

The vendors or their representatives attended training on the operation of the program, including processing WIC vouchers, monitoring by state WIC offices for compliance with the program, and sanctions for violations. At the request of the Korean Grocer’s Association, two additional training sessions were conducted with a Korean interpreter present.

DHR, operating through the state WIC office, monitors WIC vendors through computer monitoring and through investigators who purchase food with WIC vouchers and then compare the actual prices of the items in the stores with the amounts ultimately charged the WIC program for the items on the WIC vouchers submitted by vendors for these purchases. Further, although not required to do so, before making such compliance visits the state WIC office sends letters to the vendors alerting them that investigators would visit their stores and requesting that they review the vendor handbook and assure that their staffs were properly trained.

In these appeals, the WIC office sent the notification letters to appellants on May 22, 1990, and the compliance visits that detected the overcharges were made in June and July 1990. Subsequently, in December 1990, the WIC office notified each vendor of the results of the compliance visits. Appellants do not dispute that the compliance visits resulted in discovery of overcharges, and that there were three overcharges per vendor that ranged from a high of $12.35 to a low of $.49 and the average overcharge was $5 per voucher. They also do not dispute that the state WIC office notified each vendor of the violations, advised each vendor that the sanction would be suspension from the program for 540 days, and advised the vendor of his appellate rights. The vendors appealed the initial decisions to a DHR hearing examiner, and after receiving adverse decisions, appealed to the Commissioner of DHR. Following adverse decisions by the Commissioner, the vendors next appealed to the superior court.

When the superior court affirmed the Commissioner’s decisions, the vendors applied for and received authority to appeal the superior court’s judgments. See OCGA § 5-6-35 (a) (1). The vendors enumerate five errors: (1) that the state WIC office exceeded its statutory authority by adopting rules and regulations for the WIC program without holding public hearing; (2) that the state WIC office failed to follow federal law by adopting the state agency plan without providing to the general public an opportunity to comment on the plan’s development; (3) that contrary to federal law, DHR failed to consider whether disqualification of vendors would create a hardship for participants in the WIC program; (4) that disqualification of these vendors was arbitrary and capricious and accomplished under rules and regulations which violated federal law; and (5) that the vendors were disqualified under rules and regulations which are unintelligible. Held:

1. The vendors’ first enumeration of error is based upon the contention that under OCGA § 31-5-1 a public hearing was required before DHR adopted the WIC vendor handbook. We find this contention to be without merit. Although Title 31 is applicable to “services” provided by DHR, WIC is not a service of DHR; therefore, Title 31 is inapplicable to the WIC program. Nevertheless, it does not follow that DHR is completely exempt from the requirement for public comment on its WIC regulations. WIC is a form of public assistance (see Dix v. State, 156 Ga. App. 868, 869 (275 SE2d 807)) provided under the Georgia Public Assistance Act, OCGA § 49-4-1 et seq. Thus, although OCGA § 49-2-11 (c) authorizes DHR to promulgate rules and regulations for the WIC program, under the Georgia Administrative Procedures Act (“APA”), OCGA § 50-13-3 et seq., DHR’s rules and regulations concerning the operation of the WIC program must be published and made available for public inspection. Contrary to DHR’s argument that it is exempt from these procedures also because rules concerning grants and benefits are not subject to these requirements of the APA (see OCGA § 50-13-2 (6) (I)), the vendor handbook does not concern “loans, grants, and benefits” within the meaning of OCGA § 50-13-2 (6) (I) since the handbook is not concerned with establishing criteria for receiving grants or benefits. Instead, the handbook addresses the operations of WIC vendors. Therefore, the vendor handbook is subject to the publication and inspection requirements of OCGA § 50-13-3 (a). Nevertheless, as appellants all had actual knowledge of the rules and regulations in question, these rules and regulations are valid and effective against them. OCGA § 50-13-3 (b). Accordingly, this enumeration of error is without merit.

2. Next, appellants contend DHR failed to comply with the federal requirement that members of the general public “shall" be given the “opportunity to comment on the development of the State Agency Plan.” 42 USC § 1786; 7 CFR 246.4 (b). A state agency plan must include a system for monitoring food dollars to ensure compliance and to prevent fraud, waste and abuse. 7 CFR 246.4 (a). DHR contends, however, that it complied with this requirement by providing copies of the plan to advocacy groups, hospitals, health departments, and anyone who previously expressed an interest in receiving a copy. Since these groups plainly do not constitute members of the general public, this procedure does not satisfy the requirements of 42 USC § 1786 and 7 CFR 246.4 (b). Nevertheless, as the appellants had personal knowledge of these requirements the rules and regulations are valid and effective as to them. OCGA § 50-13-3 (3).

3. Additionally, we find the procedures employed by DHR to disqualify appellants were deficient because the procedures are inconsistent with the requirement of 7 CFR 246.12 (k) that the sanctions taken against a vendor consider the circumstances of the violation: “The State agency shall establish policies which determine the type and level of sanctions to be applied against food vendors, based upon the severity and nature of the Program violations observed, and such other factors as the State agency determines appropriate, such as whether the violation represented repeated offenses over a period of time, whether the offenses represented vendor policy or whether they represented the actions of an individual employee who did not understand Program rules, and whether prior warning and an opportunity for correction was provided to the vendor.” The record shows that DHR’s procedures considered only whether overcharging had occurred and not “the severity and nature of the program violations observed.” Thus, a single inadvertent $.50 overcharge would require the same sanction as multiple intentional overcharges. Moreover, the procedures did not allow for consideration of whether disqualification of a vendor would create an undue hardship on participants. See 7 CFR § 246.12 (k) (1) (v). As the DHR hearing examiner stated in his reports that the DHR vendor handbook did not allow consideration of mitigating factors because there was no provision of lesser penalties, the hearing examiner’s conclusions were contrary to the federal law controlling the WIC program. Therefore, the findings and recommendation of the hearing examiner and the decision by the Commissioner were made upon unlawful procedure and the judgment of the superior court affirming the administrative decision must be reversed. OCGA § 50-13-19 (h) (3).

Decided July 12, 1993 —

Reconsideration denied July 28, 1993 —

Charles M. Hall, Speros D. Homer, Jr., for appellants.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellee.

4. Although portions of the WIC vendor handbook are not models of clarity, we find no merit to appellants’ assertion that the handbook was unintelligible. The record demonstrates that any overcharging was not the result of confusion about the definition of “overcharging” in the handbook.

Accordingly, the judgment of the superior court must be reversed and the superior court is directed to remand these appeals to the Commissioner for consideration by a hearing examiner using procedures that are consistent with 7 CFR 246.12 (k).

Judgment reversed with direction.

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


author: Beasley, Presiding Judge.

text:
    A93A0175.
    McIVER v. JONES.
    (434 SE2d 504)
   Beasley, Presiding Judge.

Mclver, executor of the estate of Manuel Jones, sued decedent’s brother Joseph, seeking to cancel a 1986 deed to 315 acres of land in Telfair County, to impress a constructive trust on the property in favor of Jones’ estate, and for injunctive relief. The executor appeals the grant of summary judgment in favor of Joseph. The sole issue is whether the action is barred by the doctrine of res judicata. It is and we affirm.

In 1986, Manuel Jones was the record owner of the acreage. In that year, he underwent brain surgery and incurred hospital expenses of $137,000. Fearing that the hospital might obtain a judgment against him and levy on the land to satisfy the indebtedness, Manuel and his wife Annie decided to convey the land to Manuel’s brother Joseph, with the understanding that Joseph would deed the property back at a later date. Annie admitted on deposition that the purpose was to avoid any hospital claim to the land. Manuel, Annie and Joseph were present in their attorney’s office in October 1986 where the deed was prepared. Manuel made his mark on the document, Annie signed his name and Manuel handed it to Joseph. It was recorded on October 13.

A second deed to the property was prepared in April 1987, which Joseph signed with his mark as grantor. Although it was witnessed and notarized, no grantee was designated and the deed was not recorded. Joseph, who is illiterate, averred that when he signed the document, Annie represented to him that he was reconveying a portion of the property to Manuel to help pay a hospital bill. He was unaware that the grantee designation was blank when he signed it. Annie deposed that the two deeds were part of a continuing transaction whereby it was understood that Joseph would deed the property back to Manuel or his designee as part of the original agreement. It was Joseph’s understanding that Manuel conveyed the land to him so it would remain in the family; he professed to be unaware of the plan between Annie and Manuel.

In 1990, Manuel learned that Joseph intended to cut some timber on the property and the 1987 deed was produced. It apparently had remained in Annie’s possession prior to that time. It was then that Annie was designated as grantee and the deed was recorded.

Claiming that Annie’s name had been filled in without his permission, Joseph sued her to cancel the 1987 deed. Annie counterclaimed seeking cancellation of the 1986 deed from Manuel to Joseph, claiming nondelivery. Neither Manuel nor his estate was a party to that first action. Directed verdicts were granted to Joseph on both the main claim and the counterclaim. The result was that the court upheld the validity of the first deed from Manuel to Joseph but canceled the second deed from Joseph to Annie. The Supreme Court affirmed the judgment without opinion. McIver v. Jones, 261 Ga. XXIX (1992).

In a detailed and well-reasoned order, the trial court granted summary judgment to appellee Joseph, concluding that the former judgment is a bar to the present action to cancel the 1986 deed from Manuel to Joseph. Appellant contends that the doctrine of res judicata is inapplicable.

OCGA § 9-12-40 codifies the common-law rule of res judicata: “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” “[T]he following three elements must be present: ‘ “(1) identity of the parties(, including their privies); (2) identity of the cause of action; and (3) adjudication by a court of competent jurisdiction.” ’ [Cit.]” Franklin v. Gwinnett County Pub. Schools, 200 Ga. App. 20, 21 (1) (407 SE2d 78) (1991).

(a) Identity of parties. Appellant contends, erroneously, that identity of parties is lacking because neither Manuel nor his estate was a party to the first litigation.

Although Manuel was not named as a party to the first action, the trial court found by undisputed evidence that “Manuel and Annie Jones conspired in a scheme to defraud the creditors of Manuel Jones by deeding the realty to Joseph Jones.” Annie’s deposition testimony unequivocally confirms that she and Manuel, acting in concert, agreed to a series of transfers of title to defeat Manuel’s creditors.

A conspiracy consists of “a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means.” Shelton v. Bowman Transp., 140 Ga. App. 248, 249 (230 SE2d 762) (1976). Manuel’s liability is predicated on the same misconduct which was the subject of the original suit. Caswell v. Caswell, 162 Ga. App. 72 (290 SE2d 171) (1982). “ ‘Privity connotes those who are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right. . . .’ [Cit.]” Smith v. Wood, 115 Ga. App. 265, 269 (154 SE2d 646) (1967). Co-conspirators are considered to be in privity for purposes of res judicata. Oxendine v. Elliott, 170 Ga. App. 422 (2) (317 SE2d 555) (1984); Caswell, supra. “What [Manuel is] accused of, in effect, is complicity with the original defendant^ counterclaimant].” Caswell, supra at 73.

The executor is in privity, too; the transaction is not washed of its conspiratorial aspects by the death of a conspirator or the appointment of an executor for his estate.

(b) Identity of the cause of action. In the first action, Annie sought cancellation of the 1986 deed from Manuel to Joseph on the basis of nondelivery of the document. Appellant contends that additional grounds for cancellation were presented in the second litigation which were not considered in the first, distinguishing it.

Decided July 7, 1993 —

Reconsideration denied July 28, 1993 —

Dewey Hayes, Sr., Dewey Hayes, Jr., Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, for appellant.

Res judicata bars subsequent actions “as to all matters put in issue or which under the rules of law might have been put in issue” in the original action. OCGA § 9-12-40. The subject matter was identical in both actions, i.e., cancellation of the 1986 deed. Annie had a full opportunity in the first action to litigate each and every claim existing between the parties which touched on that issue. See Winters v. Pund, 179 Ga. App. 349, 352 (346 SE2d 124) (1986). It was her duty to do so. Smith v. Smith, 145 Ga. App. 816, 819 (244 SE2d 917) (1978). Compare Lawson v. Watkins, 261 Ga. 147 (1) (401 SE2d 719) (1991) (where the subject of the two actions is not identical, res judicata is not a bar). The adding of additional claims for relief “ ‘which grow[ ] out of the same factual situation do[ ] not amount to the adding of a new or different cause of action. . . .’ [Cits.]” Winters, supra at 353.

(c) Adjudication by a court of competent jurisdiction. Appellant asserts that judgment on the counterclaim in the first action was invalid because of the failure to join Manuel’s estate as an indispensable party. “ ‘The doctrine of res judicata prevents relitigation of those issues which were actually raised in the first suit and any and all claims which “under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” ’ [Cit.]” Franklin, supra at 21. The requirement that the court have jurisdiction over any potential claims that the parties might have asserted has been satisfied.

“The judgment is regular on its face, and the presumption is that there was sufficient evidence to authorize the judgment, and it is conclusive as to the subject matter which it purports to decide until it is reversed or impeached for fraud. . . . [M]ere errors or irregularities in the proceedings, although they may render the judgment erroneous and subject to be set aside in a proper proceeding for that purpose, will not render the judgment void.” Rowell v. Rowell, 214 Ga. 377, 379 (105 SE2d 19) (1958). The judgment of the first tribunal was affirmed by the Supreme Court, foreclosing challenge to the trial court’s competency to grant relief requested in the counterclaim.

Judgment affirmed.

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

W. McMillan Walker, B. W. Walker, for appellee.

       Manuel Jones died in 1990. Annie Jones disappeared in 1991. Her adopted daughter, Elizabeth Mclver, was appointed conservator of her estate and defended the action in her name.


text:
    A93A0211.
    STAPLETON et al. v. COLONIAL INSURANCE COMPANY OF CALIFORNIA.
    (434 SE2d 116)
   Birdsong, Presiding Judge.

Judy Johnson Stapleton, Ashley Nicole Johnson, Paul Edward Stapleton, and Paul Edward Stapleton III (collectively “Stapleton”) appeal from the grant of summary judgment to Colonial Insurance Company of California in a declaratory judgment action. The record shows Stapleton obtained two policies of automobile insurance from Colonial, but as she did not make timely payments of premiums on the policies, Colonial sent notices canceling the policies for non-payment. Later, Stapleton was in an automobile accident and when claims were filed against the policy, Colonial filed a declaratory judgment action seeking a determination of coverage under the policies. Held:

1. Although no suit was pending against Colonial, this is a proper declaratory judgment action. Atlanta Cas. Co. v. Fountain, 262 Ga. 16, 18 (413 SE2d 450).

2. Stapleton correctly asserts there are four requirements for proper cancellation of an automobile insurance policy by mail: The policy must provide for cancellation; a post office certified receipt must be obtained; the cancellation notice must be sent to the insured’s last known address; and the evidence must show that the envelope mailed contained the statutory cancellation notice. OCGA § 33-24-44; Bituminous Cas. Co. v. Renfroe, 130 Ga. App. 621 (204 SE2d 317). Stapleton’s contention that Colonial failed to satisfy these requirements, however, is without merit.

Stapleton’s attack on the Colonial supervisor’s affidavit for lack of actual knowledge of the events in this case seeks to impose a requirement not recognized in our law. This affidavit shows the supervisor was the custodian of the documents showing that the notice of cancellation of Stapleton’s policy was properly mailed, and the purpose of her affidavit was to satisfy the criteria necessary for admissibility of these documents as business records. See OCGA § 24-3-14 (b). Accordingly, it is not required that this supervisor have actual personal knowledge of the preparation of and mailing of the notice. OCGA § 24-3-14 (c); Allstate Ins. Co. v. Buck, 96 Ga. App. 376, 378 (100 SE2d 142).

Moreover, the absence of the signature of the postal clerk on the receipt is not fatal, since the document has the official U. S. postal service stamp showing receipt by the U. S. postal service. See Mad dox v. Allstate Ins. Co., 164 Ga. App. 21, 22 (296 SE2d 84); Hill v. Allstate Ins. Co., 151 Ga. App. 542, 543 (260 SE2d 370).

Decided July 6, 1993 —

Reconsideration denied July 28, 1993.

Karen J. Rice, for appellants.

Karsman, Brooks & Callaway, D. Campbell Bowman, Jr., for appellee.

3. Stapleton also contends that summary judgment was improperly granted because the cancellation of the policy was not effective as Colonial did not establish that the notice required by the former OCGA § 33-34-11 (a) (1) was sent to the Georgia Department of Public Safety. See Ga. Farm &c. Ins. Co. v. Phillips, 251 Ga. 244 (304 SE2d 725). The record shows Colonial sought to establish that notification was made with an affidavit that states “a copy of the FR4 notice directed to the Georgia Department of Public Safety ... on June 5, 1989, regarding the policy of insurance issued by [Colonial] to [Stapleton] which was cancelled upon the 5th of June, 1989.” The affidavit further states that Colonial made a memorandum or record of the mailing of the FR4 notice to the Department of Public Safety at or near the time of mailing of the notice to the Department.

Examination of Exhibit C, however, reveals that it is not a copy of the FR4 form. Instead, the exhibit apparently is a copy of another form that has information about Stapleton, her automobile, and the insurance policy, but does not refer to the Department of Public Safety. The only possible reference on the exhibit to either the Department of Public Safety or FR4 is a handwritten notation stating: “FR4 - 6/9 Notice to State.” The exhibit, however, also contains another notation that states: “Mailed 6/5/89.” Viewing this exhibit in the light most favorable to Stapleton (OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474)) and giving her the benefit of all reasonable doubts, construction of the evidence, and all inferences and conclusions (Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843)), we cannot reasonably infer from this exhibit that a FR4 concerning Stapleton was duly sent to the Georgia Department of Public Safety. Therefore, as Colonial has failed to satisfy a condition precedent to cancellation of the policy by showing that the required notice was sent to the Department of Public Safety (State Farm Mut. Auto. Ins. Co. v. Butler, 207 Ga. App. 449, 451 (428 SE2d 386)), the grant of summary judgment must be reversed.

Judgment reversed.

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


author: Pope, Chief Judge.

text:
    A93A0273.
    ANDERSON v. THE STATE.
    (434 SE2d 122)
   Pope, Chief Judge.

Defendant Alphonso Anderson was charged with obstruction of an officer and possession of cocaine with intent to distribute. He entered a plea of not guilty and filed a motion to suppress evidence on the ground it was illegally seized. The trial court denied the motion to suppress and defendant petitioned this court for interlocutory appeal, which we granted. Defendant challenges the admissability of the seized evidence on the grounds that the initial detention of the defendant was illegal and the warrantless search conducted by the officer was without probable cause.

The facts presented at the committal hearing and the hearing on defendant’s motion to suppress show that on August 2, 1991, Officer Howard, employed as an investigator by the Albany-Dougherty County Drug Unit, was on routine patrol when he observed defendant in a high drug activity area at 12:30 a.m. Because he knew defendant was on probation or parole, the officer called defendant over to his car in order to inquire about the stipulations of defendant’s sentence. According to the officer who was on patrol with Officer Howard, defendant kept walking. After the two officers exited their vehicle, defendant stopped. According to both officers, defendant made a motion with his hand, as if to reach into his pocket and throw something into the air. According to Officer Howard, defendant acted “like he was trying to get something out of his pocket.” Thereafter, defendant became belligerent and argumentative and was placed under arrest for obstruction of an officer. Subsequently, Officer Howard inspected the area in which the defendant had been standing and picked up from the ground two plastic bags containing a substance which appeared to be, and later tested to be, cocaine. Accordingly, defendant was transported to the Dougherty County Jail and was arrested for possession of cocaine with intent to distribute.

The record shows defendant was serving a probationary sentence for a conviction for sale and distribution of cocaine. As part of the sentence, defendant signed an agreement to submit to a search whenever requested to do so by a probation officer or any law enforcement officer. The trial court denied defendant’s motion to suppress, finding that the detention and search of defendant were not illegal because defendant had relinquished his Fourth Amendment rights by consenting to search pursuant to the terms of his probationary sentence. Relying upon Owens v. Kelley, 681 F2d 1362 (11th Cir. 1982), defendant argues that although the terms of his sentence are enforceable, his consent to search may not be used for purposes of harassment or as a subterfuge for a criminal investigation under circumstances in which a search warrant should be obtained.

In Owens v. Kelley, the Eleventh Circuit Court, reviewing language identical to that involved in the probationary sentence in this case, ruled the condition allowing warrantless searches did not violate the Fourth Amendment. We note, however, that this does not mean that any and all searches for whatever reason are authorized by a warrantless search provision in a probationary sentence. In Griffin v. Wisconsin, 483 U. S. 868 (107 SC 3164, 97 LE2d 709) (1987), the United States Supreme Court indicated that as long as a search is conducted in reliance upon the terms of probation, the Fourth Amendment protection against unreasonable searches may be satisfied by something less than probable cause to search so long as there is at least reasonable grounds for the search. Thus, while a probationer’s consent to search may relax the Fourth Amendment standard for a search of the probationer, he does not waive all Fourth Amendment rights by agreeing to submit to a search at the request of a probation or law enforcement officer. Thus, the trial court erred in concluding that defendant relinquished his Fourth Amendment rights by consenting to the conditions of his probation.

In determining whether a search conducted in reliance upon the terms of probation is constitutional, it is necessary to determine whether there was reasonable grounds for the search. For example, in cases involving the enforcement of a probationer’s consent to submit to urinalysis, the appellate courts of Georgia have ruled that the results of such a test are admissible if the test was conducted either as a routine incident of probation supervision (Smith v. State, 250 Ga. 438 (298 SE2d 482) (1983)) or was based upon reasonable grounds for suspecting criminal activity (Green v. State, 194 Ga. App. 343 (390 SE2d 285) (1990)). The same rule should apply to the fruits of a warrantless search conducted in reliance upon a probationer’s consent to search. This rule was applied by the United States Court of Appeals for the Ninth Circuit in United States v. Johnson, 722 F2d 525 (9th Cir. 1983). “ ‘The rule is that there must be some conduct reasonably suggestive of criminal activity to “trigger” the search.’ [Cit.]” Id. at 527.

The evidence at issue in this case, however, was not seized as a result of a search of the defendant. Instead, it was discovered upon an inspection of the ground where defendant abandoned the evidence before he submitted to the officer’s request to stop, was placed under arrest or was searched. Even if, as defendant argues, the officer’s detention of him was unlawful, the evidence was not the fruit of a seizure, legal or illegal, and is admissible. See California v. Hodari D., 499 U. S. _ (111 SC 1547, 113 LE2d 690) (1991). Thus, the trial court did not err in denying defendant’s motion to suppress.

Judgment affirmed.

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

Decided July 14, 1993 —

Reconsideration denied July 28, 1993 —

Borough & Sizemore, Kermit S. Borough, Jr., for appellant.

Britt R. Priddy, District Attorney, Johnnie M. Graham, Assistant District Attorney, for appellee.


text:
    A93A0394.
    DIETZ et al. v. BECKER et al. TOKIO MARINE & FIRE INSURANCE COMPANY v. DIETZ et al.
    A93A0395.
    (434 SE2d 103)
   Pope, Chief Judge.

Plaintiffs/appellants Earl and Patricia Dietz brought suit against Connie Becker and Clarence Jarrell seeking to recover damages for personal injuries plaintiffs allegedly received when the car in which they were traveling was rear-ended by a van driven by Becker and owned by Jarrell. The jury returned a verdict for the defendants and plaintiffs filed a motion for j.n.o.v. or, in the alternative, a motion for new trial as well as a motion for a post-verdict directed verdict and motion for new trial. Plaintiffs also filed a notice of appeal to this court. Plaintiffs subsequently withdrew their notice of appeal and, following a hearing, the trial court entered an order denying plaintiffs’ motions. Plaintiffs then filed the present appeal which was docketed in this court as Case No. A93A0394 and Tokio Marine & Fire Insurance Company, one of the uninsured motorist carriers involved in this litigation, filed a cross-appeal, which was docketed in this court as Case No. A93A0395. We have consolidated these appeals for review by this court.

Case No. A93A0394

1. Defendants’ motion to dismiss the appeal in Case No. A93A0394 is denied. See Housing Auth. v. Geter, 252 Ga. 196 (312 SE2d 309) (1984); see also Shirley v. State, 188 Ga. App. 357 (1) (373 SE2d 257) (1988).

2. Plaintiffs contend the trial court erred in denying their various post-trial motions because the evidence establishing Becker’s liability was uncontroverted. We agree there is no question that Becker’s negligence caused the collision in this case; indeed, the record shows the trial court agreed to grant plaintiffs a directed verdict as to that issue. However, the record is likewise abundantly clear that the primary issue to be decided by the jury in this case was whether the injuries for which plaintiffs sought recovery were sustained in the collision with Becker, or whether plaintiffs’ alleged injuries existed prior to this collision. “ ‘It is basic in our law that no liability attaches unless the negligence alleged is the proximate cause of the injury sustained.’ Cline v. Kehs, 146 Ga. App. 350 (6) (246 SE2d 329) (1978).” Dilworth v. Boeckler, 187 Ga. App. 241 (370 SE2d 17) (1988). Since the grant of a directed verdict on the issue of “liability” necessarily includes a determination of both negligence and causation, id., and since the central issue in this case was the proximate cause of the injuries alleged, we find no error in the trial court’s denial of plaintiffs’ motions for directed verdict. Cf. Thomas v. Kite, 206 Ga. App. 80 (424 SE2d 305) (1992); Drake v. Page, 195 Ga. App. 226 (1) (393 SE2d 89) (1990). Moreover, although the court agreed to direct a verdict on the issue of Becker’s negligence, plaintiffs did not object to the failure of the court to so instruct the jury. This enumeration is without merit.

3. Plaintiffs also contend that the trial court erred in allowing defendants to present evidence concerning plaintiffs’ receipt of benefits from a collateral source.

At the outset we note that through their record citations, plaintiffs have attempted improperly to expand this enumeration to include not just the introduction of collateral source evidence but also instances where the trial court allowed the defendants to inquire into the plaintiffs’ financial circumstances. For example, the record shows the trial court allowed defendants to cross-examine plaintiff Earl Dietz concerning his statement that he was worried about losing his home after the accident. Plaintiffs objected, contending this was improper testimony concerning the parties’ financial circumstances. Through cross-examination, defendants introduced evidence that Dietz continued to receive his salary from the date of the accident until the time his employment ceased and that plaintiffs received income from certain business ventures. Plaintiffs now cite to the introduction of this testimony as an example of the introduction of collateral source evidence over their strenuous objection. However, ‘“[w]here the objection urged below is not argued here it must be treated as abandoned, and where an entirely different basis of objection is argued on appeal which was not presented at trial, we will not consider this as error, for we are limited on appeal to those grounds presented to and ruled upon by the trial court and then enumerated as error. (Cit.)’ [Cit.] ‘An objection to the admission or exclusion of evidence must be specifically raised at trial in order to be heard on appeal. (Cit.)’ [Cit.] ‘Only those grounds urged below will be considered on appeal. (Cit.)’ [Cit.]” Daniel v. Parkins, 200 Ga. App. 710, 711 (1) (409 SE2d 233) (1991). Moreover, defendants were clearly entitled to test the veracity of Earl Dietz’s testimony that he was worried about the future and about losing his home after the accident. It follows that the trial court did not err by allowing defendants to cross-examine Dietz about this statement. This testimony elicited in cross-examination was not, as plaintiffs contend, inadmissible collateral source evidence, but rather was admissible to impeach Dietz’s statement concerning his financial worries. Furthermore, this evidence was also relevant to the question of lost income, one of the items of damages plaintiffs sought to prove at trial.

The more difficult question in this case is whether the trial court erred in admitting evidence concerning long-term disability payments. Clearly, this is the type of evidence that would usually be inadmissible under the collateral source rule. Nonetheless, we do not believe a reversal is mandated under the facts of this case. First, we note that this is not a situation where the trial court erroneously allowed defendants to admit evidence of any and all collateral benefits received by plaintiffs. Cf. Hayes v. Gary Burnett Trucking, 203 Ga. App. 693, 694 (2) (417 SE2d 676) (1992). In this case the evidence that plaintiff Earl Dietz received long-term disability benefits related only to his claim for lost wages or income, and the evidence did not suggest that plaintiffs had been compensated from a collateral source or sources for the other items of damages they sought to prove at trial. Thus, although the evidence admitted might have caused the jury to return an inadequate verdict for the plaintiffs, it could not have resulted in a determination that plaintiffs were entitled to no recovery from defendants. It follows that the verdict for defendants in this case did not result from the erroneous admission of this collateral source evidence. Cf. Wilhelm v. Atlanta Gas Light Co., 190 Ga. App. 869 (1) (380 SE2d 276) (1989).

Moreover, the record shows that one reason the trial court ruled the evidence of disability benefits admissible in this case was because such evidence was contained in plaintiffs’ exhibits. Although plaintiffs initially refused to tender these documents for admission after it became apparent that defendants would use this evidence in cross-examination, the trial court correctly concluded that plaintiffs could not have it both ways; to wit, they could not use the documents as a basis and foundation for favorable testimony, treating the documents as if they were going to be admitted at trial (at one point during Dietz’s testimony about his fringe benefits, plaintiffs’ counsel referred to the fact that the document would speak for itself), and then refuse to tender them in order to prevent allegedly prejudicial information from reaching the jury. Indeed, plaintiffs subsequently indicated their agreement with the way the trial court handled this issue, stating that “under the circumstances of Your Honor’s ruling you have preserved a fair trial as Your Honor has called the shots on collateral sources.” It is axiomatic that a litigant cannot acquiesce in a ruling of the trial court and then complain of that holding in a subsequent appeal to this court. See, e.g., Capes v. Bretz, 195 Ga. App. 467 (2) (393 SE2d 702) (1990); Boatright v. State, 192 Ga. App. 112, 116 (5) (385 SE2d 298) (1989).

Plaintiffs also contend “the trial court erred in failing to give, upon request, limiting instructions regarding the use of collateral source evidence and testimony for the limited purpose, on cross-examination of impeaching the credibility of appellants’ testimony and not as substantive evidence.” However, our review of the transcript does not disclose that plaintiffs requested such a change; moreover, the citation to the transcript provided by plaintiffs, which appears to be to an off-the-record bench discussion, shows that the issue being addressed by the court at that juncture of the proceedings pertained to the admissibility of evidence concerning the plaintiffs’ financial circumstances and that the issue of the admissibility of disability benefits did not arise until later in the proceedings. Moreover, as we recently held in Pouncey v. Adams, 206 Ga. App. 126 (1), 127 (424 SE2d 376) (1992), “[w]here an error in the giving of a charge or in the admission or exclusion of evidence relates only to the issue of damages, and the jury finds the defendant not liable, the error is harmless because it does not affect the verdict. Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510) [(1989)]; accord Barnes v. Wall, 201 Ga. App. 228, 230 (3) (411 SE2d 270) [(1991)].”

4. Contrary to plaintiffs’ final contention on appeal, the jury’s verdict in favor of defendants was authorized by the evidence presented at trial. Consequently, this enumeration is without merit.

Case No. A93A0395

5. Because of our affirmance of the judgment in Case No. A93A0394, it is unnecessary for us to address the error enumerated by cross-appellant Tokio Marine in Case No. A93A0395.

Judgments affirmed.

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

Decided July 2, 1993 —

Reconsideration denied July 28, 1993 —

David G. Chiodo & Associates, David G. Chiodo, R. Edward Furr, Jr., John J. O’Connell, Jr., for Dietz.

Cooper & Associates, Gary M. Cooper, for Becker.

McLain & Merritt, M. David Merritt, for Tokio Marine & Fire Ins. Co.

       Plaintiffs do not identify the nature of the collateral source evidence other than by these record citations.

       Although plaintiffs argue the trial court erred in denying their motion in limine, plaintiffs’ counsel’s statements at trial indicate such motion was granted.

       It appears that some of the problems here might have been obviated had the objectionable evidence been redacted from the documents prior to plaintiffs’ extensive use of the documents at trial.


text:
    A93A0463, A93A0464.
    SCHIRMER et al. v. AMOROSO et al.; and vice versa.
    (434 SE2d 80)
   Birdsong, Presiding Judge.

Hans Schirmer and John Veltri appeal an adverse verdict and judgment in their suit for the return of $15,000 earnest money paid to appellees Amoroso and Brown d/b/a/ A & B Development Company for a building on condominium property. The development was “raw land” when appellants withdrew from the contract. Appellants contend the property was not sufficiently described by the sales contract and attachments to form an enforceable contract under the statute of frauds. OCGA § 13-5-30 (4). See Murphy v. Morse, 96 Ga. App. 513 (100 SE2d 623).

Appellants signed a purchase agreement for a “Model 888 apartment building consisting of eight (8) 2-bedroom 2-bath [condominium] apartments.” They assert that when the contract was entered there was no document in existence from which a “key” could be found to identify their building, and there is no “key” today. See Romanik v. Buitrago, 153 Ga. App. 886 (267 SE2d 301). A plat drawn two years after the contract was entered shows eight apartment buildings. Appellees contend vaguely that documents form a “key” from which a description can be ascertained, but they assert that in any case Shirmer did not care which building he bought and that Veltri did not appear at trial. Appellants enumerate as error the denial of their motion for summary judgment and the denial of their motion for new trial. Held:

1. A denial of motion for new trial will be reversed only if there is no evidence to support the verdict. Mathis v. Dept. of Transp., 185 Ga. App. 658 (1) (365 SE2d 504). We have reviewed the record and find no clue which building was to have been bought by appellants. Whether Schirmer or Veltri cared which building they got is not conclusive. A principle point of requiring a sufficient description of property to render enforceable the sales contract is not merely to satisfy the buyers but to create marketable title. Appellants intended to use the building as an investment; if they tried to sell it, they would not know which building to sell. For that matter, the contract is so vague that there is nothing to prevent appellees from selling the same building twice. In fact, if appellants tried to deliver marketable title to other purchasers for triple profit, appellees could resist enforcement of this contract, for no one can say which building appellants bought. The contract was insufficiently descriptive and too vague to satisfy the statute of frauds. Plantation Land Co. v. Bradshaw, 232 Ga. 435 (207 SE2d 49). Romanik does not control this case; that contract designated the whole development (3200 Clairmont Drive) but the buyers knew 3229 Clairmont Drive was their building and even moved their possessions into it. The contract was partly performed (see OCGA § 13-5-31) and the buyers could not be heard to say they did not know which property they agreed to buy. In this case there can be no performance because no one knows which building appellants bought. As there was no evidence to support a finding that there was a “key” or sufficient description to make the contract enforceable, the trial court erred in denying the motion for new trial. Mathis, supra.

2. When the case has proceeded to trial and the verdict and judgment is before us for review, if the evidence supports the verdict, the issue of an earlier denial of summary judgment is moot. See Gosnell v. Waldrip, 158 Ga. App. 685 (282 SE2d 168). See also Talmadge v. Talmadge, 241 Ga. 609 (1) (247 SE2d 61) and Phillips v. Abel, 141 Ga. App. 291 (1) (233 SE2d 384) which held that a denial of summary judgment “becomes moot when the court reviews the evidence upon the trial of the case.” But, if the verdict is not supported by evidence and the case is remanded for new trial, the issue of summary judgment is no longer moot.

A denial of summary judgment is generally appealable only by application pursuant to OCGA §§ 9-11-56 (h) and 5-6-34 (b). But parties may appeal a denial of summary judgment with a judgment that is directly appealable, and “when a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court.” Southeast Ceramics v. Klem, 246 Ga. 294, 295 (271 SE2d 199). Moreover, OCGA § 5-6-34 (d), as amended, provides that when a final judgment is appealed, “all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone. . . . Nothing in this subsection shall require the appellate court to pass upon questions which are rendered moot.” (Emphasis supplied.)

We reverse the denial of appellants’ motion for new trial as there is no evidence to support the verdict, so the issue of summary judgment is not moot. Appellants specifically enumerate as error the denial of their motion for summary judgment, thus preserving the issue for appeal in the posture of the evidence as it was when the motion for summary judgment was denied, for it was appellee’s duty “at that time” to rebut appellant’s prima facie showing of entitlement to judgment. See Spicewood, Inc. v. Dykes Paving &c. Co., 199 Ga. App. 165, 168-169 (404 SE2d 305). We are therefore required by § 5-6-34 (d) to rule on that issue as it is properly before us, and we hold the trial court erred in denying summary judgment to appellants, there being no genuine issue of material fact (§ 9-11-56 (c)) that the property was not sufficiently described to render the contract enforceable. See Plantation Land Co., supra.

Decided June 24, 1993 —

Reconsideration denied July 28, 1993 —

Michael B. Perry, for appellants.

Andrew A. Taylor, for appellees.

3. Appellees’ complaint in Case No. A93A0464, that appellants did not attach a rule nisi to their motion for new trial (see OCGA § 5-5-41), is therefore unnecessary to consider.

Judgments reversed.

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


text:
    A93A0489.
    HAP FARMS, INC. et al. v. HEARD.
    (434 SE2d 118)
   Birdsong, Presiding Judge.

Appellants HAP Farms, Inc. (HAP Farms), Mike Phillips, and Charles Powell appeal the $20,000 judgment in favor of appellee Andrew Gary Heard d/b/a/ Gary Heard Farms.

Heard brought suit against HAP Tree Farms, Inc. (HAP Tree Farms), seeking to recover a certain sum allegedly due and owing for Christmas trees sold and delivered. HAP Tree Farms filed an answer and counterclaim to the complaint, denying indebtedness and seeking damages for breach of contract and implied warranty due, inter alia, to receipt of unmerchantable and unfit trees. Subsequently, HAP Tree Farms filed a motion to correct a misnomer in its corporate name to HAP Farms, Inc. averring that no corporation exists in the state under the name of HAP Tree Farms but conceding that the corporation did business under the trade name of HAP Tree Farms “to inform its customers ... it was in the Christmas tree farming business.” Heard filed a dismissal of complaint notice, which was objected to by HAP Tree Farms. The court granted appellant HAP Tree Farms’ motion to correct but granted appellee leave to file a brief in opposition and to be heard on oral argument prior to trial. Appellee then filed a motion to add appellants Mike Phillips and Charles Powell III, and to drop HAP Tree Farms and HAP Farms, as party defendants. (Phillips and Powell physically signed the tree sales agreement entered into with appellee, as president and secretary, respectively.) After jury selection — each party having reserved its right to a ruling on all pending motions — the court held hearings on the objection to appellees’ dismissal of the complaint and motion to add new party defendants; the court ruled on the record that appellee could not dismiss his complaint and granted appellee’s motion to add Phillips and Powell as new party defendants. The case proceeded to trial the next day without a written order being entered to add Phillips and Powell, without service of process upon the new defendants, and ostensibly without the new defendants being represented by counsel. Phillips and Powell posed no objections either to being added as parties or to proceeding with trial; they sat at the defendant’s table without counsel and testified on behalf of the defendants. Their presence in court during the entire five-day trial is not contested. The case was tried before the jury on July 25-30, 1992; an order adding Phillips and Powell as defendants was reduced to writing and signed by the trial judge on July 14, 1992. This order was entered on July 30, 1992. Held:

1. (a) The grant of a motion to amend the complaint to add a party does not dispense with the requirement that such party be properly served with summons in the lawfully prescribed manner; this requirement remains though the added party has actual knowledge of the pending suit. Gaskins v. A. B. C. Drug Co., 183 Ga. App. 518, 519 (1) (359 SE2d 364). Even as to added parties (Stone Mtn. Aviation v. Rollins Leasing Corp., 174 Ga. App. 35, 36 (2) (329 SE2d 247)), a judgment is null and void where there is no valid service or waiver of service (Estate of Thurman v. Dodaro, 169 Ga. App. 531, 534 (1) (313 SE2d 722)). However, although Phillips and Powell were not required to file a responsive pleading (compare Chan v. W-East Trading Corp., 199 Ga. App. 76 (403 SE2d 840) and Diaz v. First Nat. Bank &c., 144 Ga. App. 582 (241 SE2d 467)) so as to necessitate timely raising the lack of personal jurisdiction (resulting from invalid or want of service) in the answer or by motion either before or at the time of pleading (see generally Whitley v. Hsu, 260 Ga. 539 (397 SE2d 694)), waiver will occur unless objection is made at the first practicable opportunity after the parties have been added. Additionally, entering a general appearance in a pending suit likewise will result in waiver of service, and “any act by which one consents to the jurisdiction of the court constitutes a waiver.” Bigley v. Lawrence, 149 Ga. App. 249, 250 (253 SE2d 870). In this case, Phillips and Powell in essence entered a general appearance. They posed no timely objection either to being added or to proceeding to trial; they requested no continuance to obtain counsel; also in “apparent participation in the proceedings,” they sat at the table of counsel for HAP Farms during trial and testified in behalf of the defendants. This conduct constitutes waiver. Commercial Nat. Bank &c. v. Moore Ford Co., 121 Ga. App. 424 (174 SE2d 201).

(b) Contrary to appellants’ contentions, joinder of the parties can occur after a jury has been selected; parties may be dropped or added by order of the court at any stage of the action and on such terms as are just. OCGA § 9-11-21. Further, Phillips and Powell, having failed to request continuance timely and having participated in the trial without objection, cannot now complain they were forced to trial under unjust terms.

(c) Appellants provide neither argument nor case authority in their brief to support the additional contention in their first enumeration of error that the trial court erred by proceeding to trial without any written order being entered to add Phillips and Powell; this issue is abandoned. Court of Appeals Rule 15 (c) (2). Moreover, as appellants’ first enumeration contains more than one assertion of error in violation of OCGA § 5-6-40, we elect to address no other issues contained within this enumeration. West v. Nodvin, 196 Ga. App. 825, 830 (4c) (397 SE2d 567).

2. The record reflects that, although counsel for HAP Farms took exception to plaintiff’s request to charge no. 27, no exception or objection was made by the individual defendants, Phillips and Powell. HAP Farms’ attorney previously stated in his place on the record: “I represent HAP Farms in this matter,” and appellants have asserted in their briefs that the case proceeded to trial “without the new defendants being represented by counsel.” Thus, the charging exception taken by HAP Farms’ counsel did not preserve any charging error on behalf of Phillips and Powell. As to them any charging error issues have been waived. OCGA § 5-5-24 (a); Tahamtan v. Tahamtan, 204 Ga. App. 680, 683 (6) (420 SE2d 363); Nelson v. Miller, 169 Ga. App. 403, 404 (312 SE2d 867).

The sales agreement was executed between Andrew Gary Heard, d/b/a Gary Heard Farms and HAP Tree Farms, Inc.; however, the parties acknowledge on appeal that the corporate seal of HAP Farms, Inc. was affixed to the agreement.

Reviewing the questioned charge in its totality (Jordan v. Santa Fe Engineering, 198 Ga. App. 600, 602 (2a) (402 SE2d 304)), we find that the legal principles are succinctly and correctly stated. Compare Stone v. Allen, 201 Ga. App. 842, 843 (1) (412 SE2d 605) with Lanier Ins. Agency v. Citizens Bank &c., 168 Ga. App. 424, 425 (309 SE2d 419); Hawkins v. Turner, 166 Ga. App. 50, 51-52 (1) (303 SE2d 164) and Clonts v. Assoc. Distrib., 132 Ga. App. 558 (2) (208 SE2d 570). It is not error for the trial court to charge the law in relation to an issue when there exists any evidence, however slight, upon that particular point. Stein Enterprises v. Chatham County, 200 Ga. App. 385, 387 (4) (408 SE2d 173). There exists some evidence, direct or circumstantial, as to each point at issue in the questioned instruction. While there exists some evidence from which the jury could find Phillips and Powell revealed to appellee that their principal was HAP Farms, there also existed some evidence from which the jury could conclude that the identity of the principal was not revealed and that Phillips and Powell were conducting. business in their individual capacity under the trade name of HAP Tree Farms. The evidence as to these issues was not so strong as to compel a finding as a matter of law; the issues properly were submitted to the jury (see Hawkins, supra at 52) under an adequate charge. See Strickland v. State, 198 Ga. App. 570, 571 (2) (402 SE2d 532).

Pinson v. Hartsfield Intl. &c. Center, 191 Ga. App. 459 (382 SE2d 136) is factually distinguishable from this case. In Pinson the corporate identity of the contracting party was clear although a misnomer was used in identifying the corporation (Stone, supra at 843); moreover, the misnomer occurred merely by dropping certain words from the corporate name but retaining the basic identity of the corporation as Pinson Air Freight. In this case a word was substituted, identifying the purchaser as HAP Tree Farms, Inc. (a specific type of farming entity). The effect of this discrepancy is not so clear, and presented issues for the jury.

Additionally, appellants concede in their brief that “the corporation at all times has admitted the contract and that it entered into the contract^] there was no need to ratify what the corporation had in fact done.” Assuming arguendo an error in the instruction (as to the corporation’s liability based on the theory of ratification) occurred, in view of the posture of the evidence, such error would be harmless. OCGA § 9-11-61; see Mattarochia v. State, 200 Ga. App. 681, 685 (5e) (409 SE2d 546).

3. Appellants’ assertion that the evidence was insufficient to support a judgment against them is without merit. An appellate court neither weighs the evidence nor determines witness credibility; rather, it determines evidence sufficiency. Locke v. Vonalt, 189 Ga. App. 783, 785 (1) (377 SE2d 696). “On appeal an appellate court is bound to construe the evidence in support of the verdict and judgment, and if there is some evidence to support the verdict we will uphold the judgment.” Id. There exists some evidence to support the verdict and judgment in this case.

Judgment affirmed.

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

Decided July 13, 1993 —

Reconsideration denied July 28, 1993 —

Allen, Kelley & Sowell, D. Lynn Kelley, Reinhardt, Whitley & Wilmot, Glenn Whitley, for appellants.

Rentz & Shepard, Ronald H. Rentz, Geer & Rentz, Peter Z. Geer, for appellee.


text:
    A93A0538.
    MILLER et al. v. TRANAKOS et al.
    (434 SE2d 84)
   Birdsong, Presiding Judge.

Appellants Miller sued Arthur P. Tranakos, a former attorney, for breach of contract, fraud and deceit, legal malpractice, breach of fiduciary duties, and cancellation of a note, and filed RICO claims. Appellants claim damages arising from a scheme devised by Tranakos for investment by the Millers and others for the purchase of “master sound recordings” made by famous recording artists, including Elvis Presley, to create tax shelters reflecting huge business losses. These tax exclusions, on Tranakos’ advice, resulted in zero tax liability of appellants for several years until the Internal Revenue Service investigated and the investments were disallowed as legitimate tax shelters. Large penalties and tax assessments were exacted from appellants.

After appellants sued Tranakos and obtained a default judgment, they learned that Tranakos was trustee for a trust established by his father, Peter Tranakos, for Peter’s five grandchildren, who were between the ages of seven and fourteen when Peter died in 1977. At the time of Peter Tranakos’ death, the trust contained about $250,000 in stocks and property for benefit of Peter’s grandchildren, including one share of stock in “The Snuggery,” a defunct corporation formed by Arthur Tranakos and conveyed to his father, Peter. Arthur Tranakos began to manage the assets of this trust in 1979; as trustee, he sold all the stocks and bought a one-half interest in a rock quarry for $39,000. This is the only asset extant in the trust. The trust beneficiaries were not apprised of Tranakos’ investments or dealings. In 1989 he was convicted and imprisoned for conspiracy in a tax evasion scheme. Thereafter, the oldest grandchild tried to trace the trust corpus. It appeared that over $70,000 in proceeds from sale of stock disappeared or was used by Arthur Tranakos personally.

The connection between appellants’ claims and the Tranakos Grandchildren Trust is “The Snuggery,” the corporation formed by Arthur Tranakos in 1969 to operate a restaurant. The restaurant closed and the corporation was dormant with no assets by 1973. Tranakos transferred ownership of the one share of stock in The Snuggery to his father, Peter Tranakos; it had no value but as part of Peter’s estate it was transferred to the Tranakos Grandchildren Trust. Arthur Tranakos sold the “master sound recordings” via The Snuggery.

The Tranakos Grandchildren Trust moved for summary judgment, contending it could not be liable for Arthur Tranakos’ wrongdoing under the circumstances of the case. The trial court granted the motion, ruling: “The court finds and concludes . . . that it is uncontroverted that the trust itself never received any benefit from any funds, investments or contributions made by [appellants] to defendant Arthur Tranakos or to The Snuggery, Inc.” The Millers appeal, asserting several theories of liability of the trust. Held:

1. On appellees’ motion for summary judgment, the burden of establishing the non-existence of any genuine issue of fact is on the movant and all doubts are resolved against it (Grossberg v. Judson Gilmore Assoc., 196 Ga. App. 107 (395 SE2d 592)); but once the movant has supported its motion for summary judgment, respondent must set forth specific facts showing a genuine issue for trial. Atlantic Wood Indus. v. Lumbermen’s &c. Alliance, 196 Ga. App. 503, 508 (396 SE2d 541). We find no specific evidence from which a jury might conclude that, in the investment scheme affecting appellants, Tranakos was acting in his capacity as trustee of the trust, that the trust benefitted from Tranakos’ schemes, or that the trust should be culpable for any other compelling reason. Where, e.g., appellants contend it is proved that the trust received $10,000 profits from The Snuggery/Elvis Presley Partnership, the record merely reflects Arthur Tranakos’ confused deposition testimony concerning $10,000,000 as the alleged price for which the trust sold its interest in an Elvis Presley master sound recording to The Snuggery. Nowhere do appellants clearly show that the trust actually got $10,000,000, or $100,000, or even $10,000 in this scheme or any other.

Generally, trust funds may not be depleted by subjection to liability for negligence of or other tort by the trustee. Burgess v. James, 73 Ga. App. 857, 859 (38 SE2d 637). The mere fact that the trustee used trust funds to the detriment of third persons does not create liability in the trust; the trustee being the operator and controller of the funds, it is not to be presumed that the beneficiaries or owners of the trust corpus knew of any wrongdoing through use of trust funds. The proof of the trust’s benefit from or complicity in the wrongful acts must be more than mere suspicion arising from circumstances including commingling of funds or other coincidence, and must point to specific culpability or, at least, a specifically proved unjust enrichment.

Appellants show masterfully that Arthur Tranakos wove a complicated web and used The Snuggery as the vehicle for his schemes, but we find no evidence to justify holding the trust liable for Tranakos’ misdeeds. According to the evidence, Tranakos manipulated the trust to his purposes, not vice versa, not acting for the benefit of the trust but using the trust for the benefit of himself. The trust appears as much, or more, the victim of Tranakos’ wrongdoing as do appellants. Miller v. Smythe, 92 Ga. 154 (18 SE 46) does not apply; the trustee in that case was sued as landlord of a building, in which capacity he was “duly authorized” to act for the trust which owned the building. Nothing Arthur Tranakos did of a malfeasant nature to harm appellants was authorized by the Tranakos Grandchildren Trust, or benefitted it.

Decided June 25, 1993 —

Reconsideration denied July 28, 1993 —

Moss, Clifford, Moss & Rothenberg, Robert A. Moss, for appellants.

Sutherland, Asbill & Brennan, Laura M. Shamp, John H. Fleming, Michael D. Bolen, for appellees.

Appellants contend, and we generally agree, that public policy “cannot allow an attorney to form a corporation, place the corporation into a trust, act as president and trustee, funnel ill gotten gains to his children and permit the children to evade repayment of the money as so-called innocent beneficiaries.” But this view is controlling only where the trust actually benefitted from the trustee’s misdeeds or where some other equity, such as conspiratorial knowledge or unjust enrichment, authorizes invading the trust to satisfy the trustee’s liability to others. To say otherwise would positively encourage the rifling of trust assets by a trustee. See, in principle, Carr v. Tate, 107 Ga. 237 (33 SE 47). The granting of summary judgment to appellee Trust was correct.

2. The trial court did not err in striking affidavits of three persons to the extent such affidavits recited evidence gleaned during their investigations and conclúsions made thereon. Cawthon Motor Co. v. Scheufler, 153 Ga. App. 282, 285-286 (265 SE2d 96). Any portion of such affidavit which may be original evidence does not create a genuine issue of fact which, if decided in appellants’ favor, would render the trust liable for Arthur Tranakos’ misdeeds. See Atlantic Wood Indus., supra.

Judgment affirmed.

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