text:
    A89A1294, A89A1295.
    MANDERSON & ASSOCIATES, INC. et al. v. GORE; and vice versa.
    (389 SE2d 251)
   Birdsong, Judge.

Case No. A89A1294 is an appeal by Manderson & Associates et al. asserting two enumerations of error of the trial court’s final order and judgment. Case No. A89A1295 is an appeal by James W. Gore, asserting six enumerations of error, of the same final order and judgment, the subsequent order correcting the final order and judgment, and of orders granting defendants’ motion to dismiss jury demand and denying plaintiff’s motion for summary judgment.

Lewis M. Manderson, Jr., and James W. Gore became business associates in an outdoor advertising business. Manderson, the principal owner and primary shareholder, sold the business at a profit. Gore shared in these profits, as he held company stock under a profit sharing plan. Manderson, Gore and another Manderson employee, named Hubbert, subsequently entered a new business venture to acquire interest in three other outdoor advertising businesses. Three limited partnerships were organized to own, operate and eventually sell each of the three businesses. Manderson & Associates, Inc. (M&A) was formed to be the general partner of each of the three limited partnerships. Apparently, the parties contemplated that M&A would serve as general partner for investment limited partnerships engaged in the outdoor advertising business. Manderson, Gore, and Hubbert also purchased limited partnership interests in one of the businesses.

As they apparently intended to invest in other business ventures, the men formed a second corporation, MGH Management, Inc. (MGH). The primary business purpose of MGH was to provide management services for all limited partnerships for which M&A served as general partner.

Manderson was the president and majority stockholder of each corporation. Gore and Hubbert were employees of MGH, as M&A apparently had no employees. Gore also was an officer and director for MGH and M&A. Gore was vice-president in charge of finance and accounting; he was the top financial officer, and also was in charge of finding further business ventures.

To preserve the closely-held nature of the companies, each shareholder executed certain employment agreements and stock transfer agreements. The stock transfer agreements required each man to transfer his share back to the corporation upon termination of his employment. Each stock transfer agreement contained a formula for computation of the stock’s purchase price. According to trial testimony, Manderson became concerned that Gore did not have the organization’s best interests at heart. In January of 1986, two of the three outdoor advertising plants were sold and Gore had located no other ventures. In the early summer of 1986, Gore located a potential investment in a plastic jug manufacturing company. Gore then proposed, contrary to the parties’ prior agreement, that he and Manderson be vested with equal ownership in the jug company. Manderson rejected this proposal. Manderson subsequently heard a rumor that Gore was planning to leave. He then asked Gore to present his plan for staying with the company, and repeated this request during subsequent meetings. On September 19, 1986, Manderson officially terminated Gore’s employment with the company, in part asserting that Gore refused to provide such a plan. Gore contests this assertion, claiming that he provided a general plan to Manderson, and that he merely wanted to “slow down.” Appellants demanded that Gore present his stock for sale to the company. Gore did not do so, and disputed the stock price due and owing him.

Gore subsequently brought suit asserting a breach of fiduciary duty by the majority stockholders and requesting declaratory judgment of the parties’ rights and obligations under the agreements. Assuming the agreements are enforceable, which Gore contests, he seeks the amount due under the agreements in addition to damages caused by Manderson’s alleged breach of fiduciary duty. The case was tried without jury. The trial court denied Gore’s fiduciary duty claim, construed paragraph 8 (A) (1) of the stock transfer agreements in a manner more favorable to Gore, and awarded pre-judgment interest to Gore.

I. Case Nos. A89A1294 & A89A1295

1. All employment agreements and stock transfer agreements were executed in Alabama and the agreements each contained an Alabama choice of law provision. As a general principle of Georgia conflicts law, “[t]he rule of lex loci contractus controls all substantive matters, such as ‘the nature, construction and interpretation of contracts.’ ” Menendez v. Perishable Distrib., 254 Ga. 300, 302 (329 SE2d 149). In the absence of contrary public policy, our courts normally will enforce a contractual choice of law provision, Carr v. Kupfer, 250 Ga. 106 (1) (296 SE2d 560), as the parties by contract may stipulate that the laws of another jurisdiction will govern the transaction. Wallace v. Harrison, 166 Ga. App. 461, 463 (304 SE2d 487); see OCGA § 11-1-105.

II. Case No. A89A1294

2. Appellants Manderson et al. assert the trial court erred by awarding pre-judgment interest where there was no tort or breach of contract and where the pre-condition to payment was not met by Gore.

The trial court, citing C. E. Sawyer’s Indus. &c. Fabricators v. Central Rigging &c. Corp., 653 F2d 956 (5th Cir.), found that Gore was entitled to pre-judgment interest under Alabama law. The trial court further found that fairness dictates the award, because appellants have enjoyed the appreciation and time value of the amount to which Gore was entitled for his stock since 60 days after his termination date (the date stock transfer should have been consummated under the stock transfer agreement). (The parties neither argue nor cite authority to contest the issue of nonapplicability of Alabama law to the award of pre-judgment interest. Accordingly, this issue has not been raised on appeal. Court of Appeals Rule 15 (c)).

The issues raised by this enumeration of error will be examined in light of this court’s rule of appellate procedure that on appeal we must construe the evidence most strongly to support the verdict and judgment. McLarty v. Kushner, 173 Ga. App. 432 (1) (326 SE2d 777).

Under Alabama Code § 8-8-8, pre-judgment interest runs only on such sums as are certain or are capable of being made certain. See generally Wood v. Central Bank of the South, 435 S2d 1287 (10-12) (CCA Ala.); State Farm Mut. Auto. Ins. Co. v. Fox, 541 S2d 1070 (SC Ala.). Compare Shook &c. Co. v. Central Rigging &c. Corp., 684 F2d 1383 (USCA 11th Cir.) and C. E. Sawyer’s Indus. Fabricators v. Central Rigging &c. Corp., supra, with Eastern Air Lines v. Atlantic Richfield Co., 712 F2d 1402 (TECA) and Roe v. Baggett Transp. Co., 326 F2d 298 (USCA 5th Cir.). As appellant has not enumerated as error the issue of whether the pre-judgment award met the requisite degree of certainty under Alabama law, this question is not before us on appellate review. Roberts v. Cotton States &c. Ins. Co., 186 Ga. App. 371, 373 (367 SE2d 272); City of College Park v. Ga. Power Co., 188 Ga. App. 223 (372 SE2d 493).

. Assuming without deciding that Alabama Code § 8-8-8 requires a breach of contract as a prerequisite to the award of pre-judgment interest in cases sounding in contract (see Miller & Co. v. McCown, 531 S2d 888, 889 (SC Ala.); Lapeyrouse Grain Corp. v. Tallant, 439 S2d 105, 111 (SC Ala.); Alabama Terminix Co. v. Howell, 158 S2d 915 (5) (SC Ala.), we find that the record would support a determination by the trial court that appellant Manderson breached the stock transfer agreements.

Appellant Manderson further asserts that Gore also was in breach of the agreements, and that Gore failed to tender his stock as required. We disagree. Under Alabama law, “[h]e who seeks equity must do equity; and he who would put another in default for failing to comply with a contract must show that he has not breached his part of said contract, or else give an excuse for a failure to perform.” Keener v. Moslander, 54 S 881 (1) (SC Ala.); accord Walker v. Harris, 179 S 213 (6) (SC Ala.). Moreover, “one who seeks equitable relief must come into court with ‘clean hands’ and . . . the application of this doctrine is peculiarly within the discretion of the trial court. [Cit.] More specifically, a party to a contract who has caused a failure of performance by the other party cannot take advantage of that failure.” (Emphasis supplied.) Dixson v. C & G Excavating, 364 S2d 1160, 1162 (SC Ala.); see Denver-Albuquerque &c. Transport v. Green, 331 S2d 719 (1).

In Health Care Mgmt. Corp. v. Rubenstein, 540 S2d 77, 78 (CCA Ala.), the court stated: “A defendant breaches its contract and the plaintiff’s right of action is complete upon the defendant’s failure to do the particular thing that it agreed to do. . . . Because of the defendant’s material breach of the contract, the plaintiff’s future performance of the contract was excused and the plaintiff had an immediate cause of action for that breach. [Cit.] Since the plaintiff was not required to further perform under the contract, he did not breach it. . . .” We are satisfied that the record would support a conclusion that Manderson so materially breached the contract that Gore was excused from further performance thereunder, and that pre-judgment interest was authorized under Alabama Code § 8-8-8. Appellant Manderson’s arguments in support of this specific enumeration of error are without merit.

3. Appellant Manderson asserts the trial court erred by erroneously applying the “revenues provision” of the M&A stock transfer agreement (M&A Agreement) contrary to its plain meaning, in a manner inconsistent with the remainder of the agreement and in conflict with Gore’s own prior construction.

The trial court properly concluded that under the operation of paragraph 8 (b) of the M&A Agreement, Gore’s stock was subject to repurchase under the so-called “revenue provisions” of paragraph 8 (а) . Paragraph 8 (a) (1) pertinently provides for the following formula: “Compute the sum of the revenues from the outdoor advertising business of the Limited Partnership and its wholly-owned entities as reflected in the Limited Partnership’s audited financial statements for the three fiscal years (or portions thereof) immediately preceding the determination date or such lesser number of years that the Limited Partnership may have operated the outdoor advertising business.” (Emphasis supplied.)

The trial court found as fact that Gore was terminated on September 19, 1986, and reached the legal conclusion “that the appropriate years to be considered are full fiscal year 1984, full fiscal year 1985, and the portion of the fiscal year 1986 immediately proceding [sic] Gore’s termination.” (Emphasis supplied;) We agree.

Pursuant to Alabama law, the construction of a contract is a function of the court and the issue whether an agreement is ambiguous is a question of law. Federated Guar. Life Ins. Co. v. Dunn, 439 S2d 1283 (2) (CA Ala.); Terry Cove North v. Baldwin County Sewer Auth., 480 S2d 1171 (1) (SC Ala.). “In determining the intent expressed in a [contract], courts must look to the [contract] as a whole and to its nature, purpose, and subject matter.” Blue Cross &c. of Ala. v. Beck, 523 S2d 121, 124 (CCA Ala.); Federated Guar. Life, supra at 1285 (4). “[T]he plain and clear meaning of its terms must be given effect. [Cit.] Likewise, the parties must be legally presumed to have intended what is plainly and clearly set out in the writing.” Blue Cross, supra at 124; Wright v. Robinson, 468 S2d 94, 98 (SC Ala.) Once the parties reduce their agreements to writing, “ ‘the writing — in the absence of a mistake, fraud or ambiguity — is the sole expositor of the transaction and the intention of the parties.’ ” Collins Co. v. City of Decatur, 533 S2d 1127, 1130 (SC Ala.). Twisted meanings and unreasonable interpretation of words in a contract may not be used to create ambiguity. ERA Commander Realty v. Harrigan, 514 S2d 1329, 1334 (3) (SC Ala.); Federated Guar. Life, supra at 1285 (б) . “Extrinsic evidence may be admitted to interpret a contract only if the court finds that the contract is ambiguous.” Terry Cove, supra at 1173 (4). “[I]f a contract remains reasonably susceptible to more than one meaning after the court applies established rules of interpretation, the contract is ambiguous, but if only one reasonable meaning clearly emerges, it is unambiguous.” Federated Guar. Life, supra at 1285; accord Blue Cross, supra at 124.

Applying the above Alabama rules of contract interpretation and examining the stock transfer agreement in toto, we are satisfied that the trial court did not err in its interpretation of the “revenue provision.”

Moreover, assuming arguendo that ambiguity had existed, such ambiguity could be resolved by applying pertinent Alabama rules of contract construction. Among those rules of construction aiding the courts in interpreting contracts “is the rule that an ambiguous contract is generally construed against the drafter.” ERA Commander, supra at 1335 (7). Appellant Manderson was responsible for the drafting of this provision; thus, any ambiguity should be construed against appellants. If the provision “was intended to mean what [appellants] assert, then it could have been drafted much more narrowly.” Id.

III. Case No. A89A1295

4. Appellant Gore asserts that the trial court erred in finding that Manderson did not breach his fiduciary duties owed to Gore. Specifically appellant Gore has alleged that Manderson misused his position as majority stockholder, officer and director to terminate Gore’s employment for the purpose of depriving Gore of the proceeds from the sale of the remaining limited partnership, Turner Outdoor Advertising, Ltd.

The trial court found that Gore was terminated for legitimate business reasons and that there was no bad faith or breach of fiduciary duty by Manderson. Construing the evidence most strongly to support verdict and judgment, McLarty v. Kushner, supra at 432 (1); see Jefferson County Truck Growers Assn. v. Tanner, 341 S2d 485 (7) (SC Ala.), we find sufficient evidence to support the trial court’s finding of fact that Gore was terminated for legitimate business reasons. Accordingly, this finding must be sustained. OCGA § 9-11-52 (a).

The employment agreements of M&A and MGH both provide that Gore’s employment could be terminated at any time by service of written notice. The stock transfer agreements of these two companies both provide that if a shareholder ceased to be employed by either M&A or MGH “for any reason whatever, either voluntary or involuntary, with or without fault of the [shareholder’s part,” the shareholder would sell and the corporation would buy all of shareholder’s stock in the corporation. Applying the rules of contract interpretation discussed in Division 3 above, we find that the parties clearly intended and expressly contracted inter alia for the absolute right to terminate employment, with or without due cause, upon service of written notice. We are satisfied that these provisions are not immoral or in violation of the public policy of this state within the meaning of OCGA §§ 13-8-1 and 13-8-2. Neither do we find this provision violates the public policy of Alabama, as “an employee contract at will may be terminated by either party with or without cause or justification. [Cit.] This means a good reason, a wrong reason, or no reason.” Hoffman-LaRoche v. Campbell, 512 S2d 725 (1) (SC Ala.). Moreover, no serious claim is made that at the time the above agreements were executed any of the parties lacked equal knowledge of material facts or relatively equal bargaining power and business acumen. Compare Baylor v. Jordan, 445 S2d 254 (1) (Ala.). Under Alabama law, “[a]n employee at will cannot be wrongfully terminated unless such termination is for a reason which contravenes public policy.” (Emphasis supplied.) Harrell v. Reynolds Metal Co., 495 S2d 1381, 1387 (3) (SC Ala.). However, “majority stockholders owe a duty to at least act fairly to the minority interests, and the majority cannot avoid that duty merely because the action taken is legally authorized.” Burt v. Burt Boiler Works, 360 S2d 327 (3) (Ala.). We find that by terminating Gore for legitimate business reasons, Manderson did not breach his duty to act fairly as required by Burt. Accordingly, the trial court did not err in finding that Manderson did not breach his fiduciary duty to Gore.

The case of Jordan v. Duff & Phelps, 815 F2d 429 (7th Cir.), relied upon by appellant Gore, is distinguishable from the facts of this case. In view of the above findings, we need not determine whether the parties could contractually alter the fiduciary duty of fair dealing owed by the majority stockholder of the close corporation. See generally In the Matter of Reading Co., 711 F2d 509 (14) (3rd Cir.); Coleman v. Taub, 638 F2d 628 (3) (3rd Cir.); Jenkins v. Haworth, Inc., 572 FSupp. 591 (10, 11) (W.D. Mich.).

5. Appellant Gore asserts the trial court erred in striking his demand for jury trial as to his breach of fiduciary duty claim.

Each of the four agreements (two employment agreements and two stock transfer agreements) contains the following provision: “The parties to the agreement desire to avoid the additional time and expense related to a jury trial of any disputes arising hereunder. Therefore it is mutually agreed by and between the parties hereto . . . that they shall and hereby do waive trial by jury of any claim, counterclaim, or third-party claim, including any and all claims of injury or damages, brought by either party against the other arising out of or any way connected with this agreement and the relationship which arises herefrom. The parties acknowledge and agree that this waiver is knowingly, freely and voluntarily given, is desired by both parties, and is in the interest of both parties.” (Emphasis supplied.)

The trial court concluded that the cause of action based on the fiduciary claim “arises directly out of the agreements entered into between plaintiff and defendants”; and that the jury waiver provision was not void for public policy reasons.

Appellee in essence asserts that the fiduciary claim arises out of the independent fiduciary duty owed to the minority stockholder, and does not arise from the agreements. While it is true that a fiduciary duty did exist independent of these agreements, it is also true that the fiduciary claim was based on an assertion that Gore’s employment was terminated in bad faith by Manderson. As adjudication of this claim perforce requires an interpretation of the rights of termination and the rights and obligations surrounding and triggering the sale of shares upon such termination under the agreements, the fiduciary claim directly arises from and also is connected with the agreements. Interpreting the agreements in accordance with the rules of contract interpretation in Division 3 above, we are satisfied that the trial court did not err in its conclusion. In this regard, we find that the jury waiver provisions are not ambiguous, but are clear, concise and intentionally broad in scope.

We further find that the jury waiver provision did not violate the public policy of this state. See OCGA §§ 13-8-1; 13-8-2. In fact, the waiver of jury trials is statutorily recognized, although carefully controlled, under the laws of this state. OCGA § 9-11-39 (a). The trial court found that “all of the parties agreed in the contracts to a waiver of jury trial, making the waiver a substantive part of the contracts as opposed to a procedural issue. Therefore, the law of Alabama governs the validity of the jury trial waivers contained in the four contracts.” (Emphasis supplied.) As the jury trial waiver provisions did not violate the public policy of this state, we agree that Alabama law applies. See Section I, Division 1, above.

The trial court then correctly applied the three-pronged test of Mall, Inc. v. Robbins, 412 S2d 1197 (Ala.) to determine whether to enforce the contractual waiver of the right to trial by jury. Mall, supra at 1199 (2); Gaylord Dept. Stores v. Stephens, 404 S2d 586, 588 (Ala.). Further, we find that the clauses and pertinent circumstances surrounding the execution of the clauses are distinguishable from the operative facts in Gaylord and Mall. In this regard, “[i]f the bargaining positions of the parties are equal, ordinarily jury waiver agreements will be upheld,” provided that the claim for which jury trial is being waived “directly [relates] to and [arises] out of the terms and provisions of the overall agreements] containing the jury waiver provisions.” Mall, supra at 1199 (4) and 1200 (5). We are satisfied that the waiver agreements meet this criteria, and that the trial court did not err.

6. Appellant Gore asserts that the stock transfer agreements contain accountant certification provisions which are void and unenforceable arbitration provision rendering the price formula provisions void and unenforceable such that Gore is entitled to actual value under the agreements.

Arbitration agreements are void and unenforceable as against public policy because they attempt to oust the courts of jurisdiction. Parsons v. Ambos, 121 Ga. 98 (1) (48 SE 696). However, Ambos “is applicable only when there is an agreement to arbitrate all questions which may arise in the execution of a contract, both as to liability and loss. [Cit.] Where the contract contains an arbitration provision relating only to such incidentals as price, value, measure, quantity, quality, classification, and similar questions the arbitration provisions in such contracts have been held valid.” (Second emphasis supplied.) West Point-Pepperell v. Multi-Line Indus., 231 Ga. 329, 331 (201 SE2d 452).

The trial court found “that the agreements are not arbitration agreements. The stock transfer agreements merely call upon the companies’ accountants to apply the formula agreed upon by the parties. As such, they are not unenforceable arbitration provisions and do not attempt to oust the court of its jurisdiction.” We agree. Moreover, it is well-recognized that “ ‘[w]here the parties to a contract agree that the decision of a third person on a matter connected with the execution of a contract shall be final and conclusive, his decision is binding on the parties, as to those matters he is authorized to determine, except in the case of fraud, gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment.’ ” Cumrine v. IPG, Inc., 186 Ga. App. 384 (3) (367 SE2d 581). We find no legitimate basis for departing from this rule.

7. Appellant Gore asserts that the trial court erred by “not concluding that M&A failed to satisfy the conditions precedent to enforcement of the M&A agreement price formula provisions and in not awarding actual value for Gore’s M&A stock. Appellant in essence asserts that the requirements for timely certification by the accounting firms of the remaining limited partnership (Turner) and of M&A, and the requirement for a timely audit, were conditions precedent.

The trial court found that “ ‘[a]ny failure of the defendants to provide an audit and certification within that sixty day period [of Gore’s termination] is not a material breach of the agreement. Even though the audit and certification were not done until relatively recently, Gore has not been prejudiced in any way by this delay. Accordingly, the failure to strictly obey these provisions of the agreement does not prohibit enforcing the stock transfer agreements.’ ” Thus, the trial court inherently found that these provisions were not conditions precedent.

The provisions in question do not contain any of the generally recognized words normally associated with the introduction of a condition precedent. But, “[ijt is well settled that whether a provision in a contract is or is not a condition precedent is dependent not upon formal words but upon the intent of the parties, to be deduced from the entire instrument.” Cobbs v. Fred Burgos Constr. Co., 477 S2d 335, 338 (3) (Ala.); Gertz v. Allen, 376 S2d 695, 697 (2). Applying Alabama rules of contract interpretation, see Division 3, above, and the precedent of Cobbs and Gertz, we find that the questioned provisions were merely covenants and not conditions precedent. Moreover, Alabama law provides that even “[i]n cases of substantial doubt courts construe provisions in contracts as covenants rather than as conditions precedent.” Murphy v. Schuster Springs Lumber Co., 111 S 427, 431 (7) (Ala.).

However, it must be determined whether these covenants are dependent or independent. Under Alabama law “a dependent covenant . . . usually, in legal effect, [will] amount to a condition precedent or concurrent.” Id. This question too “must be determined by the intention and meaning of the parties as it appears in the instrument, and by .. . application of common sense to each particular case." (Emphasis supplied.) Id. Applying rules of contract interpretation under Alabama law (see Division 3, supra) and utilizing the Murphy standard, we find that the covenants are not dependent, and in any event were not intended by the parties to operate either as a condition precedent or as a concurrent condition. See generally Cobbs v. Fred Burgos, supra at 338 (3); Gertz v. Allen, supra at 697 (2); Murphy v. Schuster Springs, supra. Moreover, when it can be reasonably accomplished, a contract and its provisions will be construed to sustain contract validity. Bullock County v. Sherlock, 5 S2d 800 (3) (Ala.); compare Grantham Transfer Co. v. Hawes, 225 Ga. 436, 443 (169 SE2d 290).

The cases of Moore v. Lovelace, 413 S2d 1100 (Ala.) and Durden v. Furniture Fair of Dothan, 348 S2d 1375 (Ala.) involve conditions precedent and are distinguishable from this case.

Accordingly, we find that the trial court reached the correct result in ruling on these matters. It is a well-established rule of both Georgia and Alabama appellate procedure that “ ‘[a] correct decision of a trial court will not be reversed regardless of the reasons given therefor.’ ” Tony v. Pollard, 248 Ga. 86 (1) (281 SE2d 557); Bryant v. Moss, 329 S2d 538 (2) (3) (Ala.).

8. Appellant asserts that the trial court erred in concluding that MGH-owned billboards are personal property rather than real property.

The trial court supported its legal conclusion by finding inter alia that the billboards can be readily moved from site to site with proper equipment. This finding of fact is adequately supported by the trial record and will not be disturbed. OCGA § 9-11-52 (a); Bell v. Cronic, 248 Ga. 457 (2) (283 SE2d 476); Moore v. Lovelace, supra at 1103 (6).

Evidence of record reflects that MGH owned approximately 50 billboards of three different types, and some boards were bolted to concrete foundations. The superstructure of certain of the boards weighed approximately 25,000 to 30,000 pounds. The typical board is 45-50 feet high. The boards could be moved with proper equipment. Except for one or two instances, the boards were placed on land leased by the outdoor advertising limited partnerships who had leased the boards directly from MGH. The leases each contained a clause authorizing removal of the boards from the property on expiration of the lease and on certain other circumstances. When boards with concrete foundations were removed, in all instances except one when the foundation was removed, the concrete foundations were abandoned and left on the land. The boards were treated by MGH as real property for certain tax purposes and as personal property for other tax purposes.

As appellant Gore has not raised in his enumerations of error any appellate issue regarding the concrete foundations on which certain of these billboards were affixed, that question is not before us for review. Roberts v. Cotton States &c. Co., supra at 373.

In Georgia the law governing the title and disposition of land is exclusively subject to the laws of the State where it is situated. King v. King, 203 Ga. 811, 817 (2) (48 SE2d 465). Likewise, “[t]he question of whether property is a part of real estate is to be determined according to the law of the jurisdiction in which the real estate is located.” 36A CJS 593, Fixtures, § 1. Accordingly, the law of Georgia, and not the law of Alabama, is dispositive of the issue before us as to all billboards located on Georgia land on the determination date of the MGH stock transfer agreement. Examination of the record reveals that on the determination date certain of the billboards may have been located on land in other states, for example in Pennsylvania or South Carolina. As appellant Gore has failed to provide any citations of authority or argument to address the correctness or incorrectness of the trial court’s ruling under the laws of states other than Georgia and Alabama, any appellate issue concerning such billboards is deemed abandoned. Court of Appeals Rule 15 (c) (2); Thomas v. Carlisle, 179 Ga. App. 315 (2) (346 SE2d 79). Further, appellate briefs do not direct this court to any place in the record where it is shown that any billboards were located in Alabama on the “determination date” of the MGH stock transfer agreements. Accordingly, the parties have no standing to complain of our determination to resolve this issue solely by applying Georgia law. “It is not the function of this court to cull the record on behalf of a party. . . Armech Svc. Co. v. Rose Elec . Co., 192 Ga. App. 829, 830 (386 SE2d 709) (1989).

Under Georgia law various factors should be considered in determining whether an article of personalty has become a part of the real property to which it has been actually or constructively annexed. “Varying weight, according to the circumstances of the case, may be given to the determinative factors.” 36A CJS 592, supra at § 1. “ ‘ “Whether an article of personalty connected with or attached to realty becomes a part of the realty, and therefore such a fixture that it can not be removed therefrom, depends upon the circumstances under which the article was placed upon the realty, the uses to which it is adapted, and the parties who are at issue as to whether such an article is realty or detachable personalty.” ’ ” Aquafine Corp. v. Fendig &c. Advertising Co., 155 Ga. App. 661 (1) (272 SE2d 526); State of Ga. v. Dyson, 89 Ga. App. 791, 793 (81 SE2d 217); Consolidated Warehouse Co. v. Smith, 55 Ga. App. 216 (1) (a) (189 SE 724). There must be some form of active or constructive annexation of personalty to the realty for the chattel to become a part of the realty. State of Ga. v. Dyson, supra at 793; 12 EGL, Fixtures, § 4. Moreover, some cases have required that there be unity of title as a prerequisite for the creation of a fixture. See, e.g., State of Ga. v. Dyson, supra at 793. Inherently included within these factors is that of intent of the parties.

It is the intent of the parties vested with ownership and use of the chattel to be annexed “as to whether the chattel is to become a permanent part of the realty” which is the primary test “in determining whether or not it becomes a fixture.” 12 EGL, Fixtures, § 3; see generally, 36A CJS, Fixtures, § 2 a; see Pease &c. Realty Trust v. Gaines, 160 Ga. App. 125, 129 (2) (a) (286 SE2d 448). In certain circumstances, intent can be the controlling factor. In Sawyer v. Foremost Dairy Prods., 176 Ga. 854, 861 (169 SE 115), the court held “[i]t seems to be well settled that whether fixtures have become attached to the realty as a part thereof, and not merely for incidental, transitory use, depends upon the intention of the parties vested with the ownership or use thereof.” Id.; accord Aquafine Corp. v. Fendig &c. Advertising Co., supra at (1).

“ ‘Where it is doubtful, under all the circumstances, whether the article in question is personalty or is a fixture, the doubt is to be solved by the [factfinder].’ ” Aquafine Corp., supra at 661. Normally, the question of intent is for the factfinder. Smith v. Odom, 63 Ga. 499, 503 (2); Pease &c., supra at 129; Ga. Real Estate Law, Fixtures, § 10-12.

Considering all relevant factors, in light of the operative circumstances, we are satisfied that the billboards are personalty rather than real property under Georgia law.

Appellant Gore asserts that the trial court erred in relying upon the unity of title requirement (see State of Ga. v. Dyson, supra), MGH’s tax treatment of the structures, and certain ground lease provisions which designated structures as trade fixtures. Regarding unity of title, one noted authority has found the rule to be “vague” and “seldom applied in practice.” Ga. Real Estate Law, supra at § 10-7. We need not resolve these questions, however, as the trial court’s ruling was correct, and accordingly will not be reversed notwithstanding the reasons therefore given. Tony u. Pollard, supra at 86 (1).

Decided November 17, 1989

Rehearing denied November 30, 1989

Arnall, Golden & Gregory, Charles L. Gregory, Karen S. Riddell, for appellants.

Alston & Bird, Oscar N. Persons, Walter G. Elliott II, for appellee.

9. Appellant Gore, citing OCGA § 13-6-11, asserts the trial court erred in finding that “under the circumstances of this case, Gore is not entitled to an award of attorney’s fees.” Inherent in this finding are findings of fact that M&A was not stubbornly litigious or caused unnecessary expense to Gore.

Regarding allegations of stubborn litigiousness and unnecessary expense, mere refusal to pay a disputed claim without suit is not sufficient to support an award of attorney fees. Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576, 580 (373 SE2d 758). Recovery of attorney fees for stubborn litigiousness and unnecessary expense is not authorized where there is a bona fide controversy. Typo-Repro, supra at 580; Jeff Goolsby Homes Corp. v. Smith, 168 Ga. App. 218, 221 (308 SE2d 564). Questions of bad faith, stubborn litigiousness, and unnecessary expense, under OCGA § 13-6-11, are generally questions for the factfinder. Gorin v. FPA 2, P.C., 184 Ga. App. 239, 241 (361 SE2d 193). It was for the factfinder to determine whether there was a bona fide controversy in this case. Jackson v. Brinegar, Inc., 165 Ga. App. 432, 437 (301 SE2d 493). When the trial court makes findings, express or implied, in a bench trial “[t]hese findings of fact and conclusions of law meet the requirements set forth in [OCGA § 9-11-52 (a)] (CPA Rule 52 (a)).” Derrickson v. Kristal, 148 Ga. App. 320 (2) (251 SE2d 170). The trial court’s finding that Gore was not entitled to attorney fees, under OCGA § 13-6-11, and the findings of fact inherently contained therein, are not clearly erroneous. Thus, the trial court did not err. OCGA § 9-11-52 (a).

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A89A1759.
    HARDEN v. AKRIDGE et al.
    (389 SE2d 6)
   Birdsong, Judge.

Ozzie Mae Harden borrowed money under an equity loan from Akridge Realty, Inc., Mortgage Division, to have certain repairs made on her home. The repairs went awry and she sued Akridge Realty, Rufus Akridge, as brokerage agent for the loan, and Goldome Credit Corporation as funding lender for damage “in connection with [her] detrimental reliance on Akridge & Akridge Mortgage for selection of a reliable contractor and supervision of his work in renovating her house, in connection with Goldome’s breach of its fiduciary duty in wrongful disbursement of loan funds and negligence in its supervision of the renovation work and in connection with [the contractor] Mercer’s shoddy work on Harden’s house.”

The trial court granted summary judgment to Akridge, Akridge Mortgage and to Goldome. Harden appeals, asserting there are genuine issues of fact as to whether Akridge’s activities in conducting the business affairs of Akridge Mortgage extended far beyond his duty as president, thus making him personally liable, and whether Akridge and Akridge Mortgage, as lender, had an obligation to protect Harden from construction defects in the renovation of her home either from a legal duty owed to her, or from an oral or implied contract.

As to Goldome, Harden asserts that its acts and participation in the loan agreement preclude it from asserting the defense of a holder in due course, and whether any agency relationship, express or implied, existed between Goldome and Akridge Mortgage. Held:

The trial court did not err in granting summary judgment to the defendants. This case is controlled by the rule in Butts v. Atlanta Fed. Savings &c. Assn., 152 Ga. App. 40, 42 (262 SE2d 230). Ordinarily, an action for damages for faulty construction and incidents thereto, by a homeowner or purchaser against a lending or financing authority, will not lie because the lender’s customary participation, the inspection, is normally not made for the benefit of the homeowner, but is made instead for the protection and benefit of the lender. Id. An exception to this rule has been recognized when the lender’s financing activity extends beyond that of a conventional construction lender and engages him in activities actually connected to construction of the property. Id. In such a case, a legal duty may arise on the part of the lender to protect the homeowner from damages caused by construction defects.

Harden attempts to allege facts or evidence which place Akridge at responsibility for selecting a negligent contractor, approving faulty work, and performing negligent inspections. However, most of these allegations relate merely to the execution of the loan and construction agreements in Akridge’s office, which she alleged removed Akridge from the normal posture of a lender making an equity loan with only a concern for the judicious use of the money lent. These allegations do not suffice to impose liability for selecting a negligent contractor.

Decided November 13, 1989

Rehearing denied November 30, 1989.

Lonzy F. Edwards, Susan Y. Middleton, Brenda C. Youmas, for appellant.

Westmoreland, Patterson & Moseley, Thomas W. Herman, Melvyn J. Williams, for appellees.

Lee Mercer, pro se.

To place liability upon the lender for faulty construction, based merely on the fact of its having lent money that was used in construction and on the fact that, apparently for its own protection, it has inspected the work pursuant to disbursement of moneys, would violate public policy by creating a serious burden of liability on lenders for construction where, in fact, no actual causative blame can be found. Without strong evidence of actual participation and negligent conduct directly connected to the construction, the creation of such a burden would act to discourage construction lending proportionately. Generally, in fact, the lender does not have anything to do with the construction itself, and is not per se in a position to correct a defect if it noticed one. Butts, supra.

If any exception to this rule is made, it will have to be based on some clear promise of the lender to perform certain protective functions, and upon a clear and distinct participation in the activity which resulted in the damage. It is certainly not enough to make general allegations that the lender inspected the work, since such inspections are presumed to be for its own financial purposes and are not intended to ensure a quality of work. The lender is not an insurer of the work of the contractor, unless clear promises appear to the contrary. No such elements appear in this case. The trial court did not err in granting summary judgment to the lenders in this case, whatever their position.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A1768.
    BENAVIDES v. THE STATE.
    (388 SE2d 886)
   McMurray, Presiding Judge.

Defendant was convicted of the offenses of trafficking in cocaine and of speeding. He now appeals from his conviction and sentence for trafficking in cocaine only. Held:

In his sole enumeration, defendant contends the trial court erred in denying his motion to suppress.

The evidence adduced at the motion to suppress hearing revealed the following: At about 11:00 in the evening of January 30, 1987, Trooper Neal Jump and Trooper Dahl McDermitt of the Georgia State Patrol “were running stationary radar [at] approximately mile post 36 on 1-95 [when they observed] a vehicle traveling northbound at 68 miles per hour in a 55 [miles per hour] zone.” The troopers pursued the vehicle with their “blue lights” activated. The driver of the speeding automobile stopped in the emergency lane and Trooper Jump approached the automobile and observed a woman in the front passenger seat and two sleeping children in the back seat. Trooper Jump “advised the driver to step out of the vehicle with his driver’s license and registration. ...” Defendant exited the automobile and produced his driver’s license and an automobile rental agreement. Trooper Jump examined the rental agreement and noticed that the automobile had been rented in Miami, Florida, a known drug source city, and that the vehicle was scheduled to be returned the next day. The trooper then advised defendant that he had been stopped for speeding and that “a driver citation was going to be issued against him. . . .”

As Trooper McDermitt was preparing the speeding ticket, Trooper Jump inquired of defendant’s itinerary. Defendant said that he and his wife and children were on vacation and that they were on their way to “upstate New York.” Trooper Jump then requested defendant’s permission to search the trunk of the rented vehicle. Defendant “said he didn’t mind [and defendant] went and got his keys [and] came back and opened up the trunk.”

Inside the trunk, Trooper Jump noticed “only one small duffel bag with the top open.” Defendant indicated that the bag was his and Trooper Jump questioned defendant about the small amount of luggage defendant’s family was carrying for vacation. Defendant explained that they were planning to purchase new clothing in New York. Trooper Jump then asked if he could search the duffel bag. Defendant consented and the trooper found one article of clothing inside the bag. Under this article of clothing, Trooper Jump found “a white plastic bag.” He reached inside the plastic bag and felt several small rectangular “brick” like objects. The trooper suspected that these objects were packaged cocaine and, without drawing the objects from the plastic bag for visual observation, the trooper asked defendant, “ ‘Is this your bag?’ What you got in it?’ ” Defendant responded, “ ‘It’s not my bag. I want a search warrant.’ ” Defendant then said, “it was his bag and that there was cheese inside.” Trooper Jump “laid [the plastic bag] back down into the duffel bag[;] placed [defendant] in [the] patrol car[; advised defendant of his Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694), rights] and . . . called for a drug squad unit to come to the scene.” A search warrant was obtained for the rental automobile and “several keys [kilos] of [suspected] cocaine” were found in the duffel bag. From these facts, defendant argues that probable cause was lacking to authorize a search of his vehicle.

“[I]t is well established that ‘ “ ‘(p)robable cause and a warrant are not required for a search and seizure which is conducted pursuant to consent.’ (Cits.)” ’ Wilson v. State, 179 Ga. App. 780, 781-782 (1) (347 SE2d 709) (1986).” Mayfield v. State, 186 Ga. App. 233, 235 (366 SE2d 836). In the case sub judice, it is true that Trooper Jump did not initially have probable cause for searching defendant’s vehicle. However, defendant gave his consent to search the automobile’s trunk and the duffel bag and Trooper Jump found what he suspected to be cocaine before defendant withdrew his consent. Nonetheless, defendant contends the State failed to demonstrate the voluntary nature of the consent.

“Where the state seeks to justify a warrantless search on grounds of consent, it ‘has the burden of proving that the consent was, in fact, freely and voluntarily given.’ Bumper v. North Carolina, 391 U. S. 543, 548 (88 SC 1788, 20 LE2d 797) (1968). . . . The voluntariness of a consent to search is determined by looking to the ‘totality of the circumstances,’ Schneckloth v. Bustamonte, 412 U. S. 218, 229 (93 SC 2041, 36 LE2d 854) (1973), including such factors as the age of the accused, his education, his intelligence, the length of detention, whether the accused was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of all these factors on the accused. In determining voluntariness, no single factor is controlling. Id. at 226.” Dean v. State, 250 Ga. 77, 78 (2a), 79, 80 (295 SE2d 306).

In the case sub judice, Trooper Jump testified that neither he nor Trooper McDermitt threatened or coerced defendant to consent to a search of the automobile’s trunk or the duffel bag. More specifically, Trooper Jump explained that he asked defendant’s permission to conduct the search while Trooper McDermitt was writing defendant’s traffic citation and that defendant positively responded to the request to search, retrieving the keys from the automobile’s ignition and opening the trunk. Trooper Jump further testified that at the time of defendant’s consent neither he nor Trooper McDermitt had their weapons drawn; that they did not promise defendant any benefit or hope of reward; that defendant did not appear to be under the influence of drugs or alcohol and that defendant did not seem to be suffering from any type of mental impairment. This evidence was sufficient to authorize the trial court’s finding that defendant’s consent to search the rental automobile’s trunk and the duffel bag was made freely, voluntarily and without coercion by the law enforcement officers. See Mancil v. State, 177 Ga. App. 663, 665 (340 SE2d 279). Further, defendant’s refusal to allow Trooper Jump to continue searching the duffel bag, after the trooper’s digital (fingertip) search of its contents, indicates that defendant was well aware of his right to refuse to consent to a search of the vehicle or the duffel bag. See Mayfield v. State, 186 Ga. App. 233, 235, supra.

Decided November 21, 1989

Rehearing denied November 30, 1989.

Randall M. Clark, for appellant.

Glenn Thomas, Jr., District Attorney, C. Keith Higgins, Assistant District Attorney, for appellee.

Defendant also argues that probable cause was lacking for his detention after he withdrew his consent to search. This argument is without merit. The fact that defendant was traveling from a known drug source city; that defendant’s travel itinerary seemed inconsistent with the amount of luggage in the vehicle and with the scheduled return date for the rental automobile; that defendant inconsistently claimed ownership of the duffel bag; that defendant appeared to be nervous when questioned by Trooper Jump; and, most importantly, that Trooper Jump discovered objects in defendant’s duffel bag with the same physical characteristics of packaged cocaine were sufficient grounds to authorize defendant’s arrest for suspected criminal activity. See William W. Daniel’s Ga. Criminal Trial Practice (1986 ed.), § 2-10, p. 12. It therefore follows that the search of the duffel bag after defendant withdrew his consent was authorized. See Williams v. State, 187 Ga. App. 409, 411 (2), 412 (370 SE2d 497). The trial court did not err in denying defendant’s motion to suppress.

Judgment affirmed.

Corley, C. J., and Beasley, J., concur.


text:
    A89A1122.
    THOMPSON v. GENERAL MOTORS ACCEPTANCE CORPORATION.
    (389 SE2d 20)
   Birdsong, Judge.

The appellant Brenda C. Thompson leased a Chrysler from the appellee. General Motors Acceptance Corporation (GMAC) in April 1985, for a term of 48 months at $409.93 per month. In March 1988, Thompson ceased to make lease payments; according to her articulation of events, she voluntarily turned the vehicle over to an agent of GMAC on March 24, 1988, and requested that the lease be “terminated.” She contended below and here that this action completely extinguished, any obligation on her part and was told so by an agent of GMAC.

By certified mail of the same date (March 24, 1988), GMAC sent Thompson a letter stating it had “taken the [Chrysler] leased to you due to default. The taking of the vehicle is considered an early termination and does not release you from any obligation under the Lease Agreement. The vehicle will be sold and you will be responsible for any deficiency resulting from the sale.”

Thompson seeks to avoid the obligation to pay the deficiency judgment by saying she attempted in good faith to renegotiate the lease agreement so that she could continue payments, and although she was unsuccessful at that endeavor, GMAC’s employee Hambry told her she could simply return the vehicle and be released of further obligation. Held:

1. The appellee GMAC is clearly entitled to judgment as a matter of law. See Alliance Auto Acceptance Lease v. Chuck Clancy Ford, 182 Ga. App. 182 (355 SE2d 112). The lease binds Thompson to an agreement to pay an amount certain for a specified time. It clearly provides that in the event of early termination the lessee will promptly pay the balance due upon the contract. The powerful policy considerations obligating the lessee to the lease of a vehicle hardly bear discussing; Thompson had no right to obtain the possession and use of the vehicle by promising payment for a specific period, and then renege at pleasure. She could not pretend to act in good faith by merely “voluntarily” returning the car and placing the blame for her default on GMAC’s refusal to reduce her payments.

The contract unequivocally provides for Thompson’s continued liability upon default. If, as she claims, an agent forgave her debt, he was acting outside his authority and she knew it, for the agreement made her liable on default. Neither can she maintain that such an unauthorized act by GMAC’s employee was ratified by GMAC, for she was notified formally by GMAC, on the same day she returned the car, that she was liable on the contract. If she contends the employee had apparent authority to release her obligation, she is wrong. “Apparent authority” is not predicated on whatever a third party chooses to think an agent has the right to do, or even upon what the agent says he can do, but must be based on acts of the principal which have led the third party to believe reasonably the agent had such authority. See Vandiver v. McFarland, 179 Ga. App. 411, 413 (346 SE2d 854).

Thompson has not suggested any fact or any act of the principal which would justify a belief that this employee had authority to defy the plain terms of her lease agreement, forgive her of her debt to GMAC, and wipe out any deficiency for default. Even if she could suggest a fact which might have so misled her, she could not reasonably rely upon it to alter her liability, for there was no consideration for forgiveness of this debt. The return of the car certainly was not any new consideration, for GMAC already owned the car and had the right to repossess it. All of the appellant’s arguments are completely without substance, and GMAC was clearly entitled to judgment. Alliance Auto Acceptance Lease, supra.

Decided November 30, 1989.

F. Robert Raley, for appellant.

Mullís, Marshall, Lindley & Powell, J. B. Marshall, for appellee.

2. Appellant asserts she was grossly overcharged for interest, but she does nothing to persuade us of this, for she gives no factual basis for it and no argument, but only makes the mere assertion. See Rule 15 (c) of the Court of Appeals of Georgia. Thus she raises no such issue on appeal.

As for her claim that the attorney fee award was unauthorized because appellee acted in bad faith, it is clear that it was appellant whose bad faith actions in this contract breach justified appellee’s claim for attorney fees. See OCGA § 13-1-11.

Judgment affirmed.

Deen, P. J., concurs. Benham, J., concurs in judgment only.


author: Birdsong, Judge. Benham, Judge,

text:
    A89A1266.
    In the Interest of E. P. N., a child.
    (388 SE2d 903)
   Birdsong, Judge.

This is an appeal by appellant natural mother from the order of the Cherokee County Juvenile Court terminating her parental rights in her son, E. P. N. E. P. N. (hereinafter “child”) was born in April, 1982.

I. Case History

Appellant has given birth to four children. In addition to E. P. N., one child has been adopted by a non-family member, one child was adopted by its natural father, and one child was adopted by appellant’s sister. On April 25, 1984, appellant voluntarily placed the child with the Department of Human Resources (DHR) for a three-month period that was extended for three months. Subsequently, DHR petitioned for temporary custody of the child, but the petition was denied.

On February 4, 1985, the child was returned to appellant, but the next day appellant contacted the foster parents and asked them to babysit for the child as her babysitter arrangements had failed to materialize. The foster parents took care of the child for approximately one of the next three weeks. Appellant .thereafter informed the foster mother that she was financially unable to care for the child, and that the child was not adjusting. Appellant again voluntarily placed the child with DHR for another six-month period. During this time, the child remained with the foster parents.

On August 26, 1985, DHR was given temporary custody of the child, and the child has remained in such custody in the foster parents’ home since that date. On March 13, 1986, DHR filed a petition to terminate appellant’s parental rights. At this time, appellant had not visited the child since December 21, 1985. On September 4, 1986, the juvenile court continued the case for approximately six months, but issued an order finding that the “child continues to be deprived,” ordering appellant to make weekly payments of $40 (which payments were generally made through March 1987), ordering at least two visits with the child per week, ordering psychological examination of appellant, and continuing temporary custody by DHR for two years.

On February 5, 1987, a Consent Temporary Order was filed. The order continued custody in DHR until August 1988, continued the $40 per week support payments, and required at least weekly visits between appellant and child to be conducted outside the foster home. The order did not dismiss the petition for termination of parental rights. The juvenile court specifically determined in its final order terminating parental rights that the only requirement appellant complied with was the requirement for psychological evaluation. The last support payment appellant is shown to have made was tendered on March 23, 1987. Also, in early 1987, appellant only visited the child occasionally, and did not visit or contact the child on his birthday.

On August 5, 1987, DHR renewed its motion for termination of appellant’s parental rights. On October 9, 1987, the juvenile court issued a temporary order finding that appellant had not exercised her visitation privileges since April 4, 1987, nor paid support since March 23, 1987. The court further found that the child continues to be deprived, directed that $40 per week support payments continue, altered visitation requirements to only those requested by appellant, ordered that the child remain in the temporary custody of DHR (through Cherokee County Department of Family & Children Services), and ordered a current psychological examination of appellant. On April 21, 1988, the juvenile court issued an order, amending the conclusions of law contained in its order of August 26, 1985, and concluding inter alia that based on clear and convincing evidence the said child is deprived and that continuation in the home would be contrary to the welfare of the child.

On June 9, 1988, the juvenile court issued an order denying termination of parental rights on the grounds that the requisite showing of harm had not been made as required by In the Interest of C. T., 185 Ga. App. 561 (365 SE2d 117). In this same order the court found as fact that appellant “suffers from a mental disability which is severe and of long standing duration. This mental disability has not thus far changed or improved since 1984 to enable the mother to care for the child. . . . There is no bonding of the parent and child despite the fact that there [has] been sufficient contacts between the two to establish a bond.” The court also found that the child continues to be deprived, placed the child in the custody of DHR, and incorporated prior visitation and support order terms by reference.

DHR filed a motion for reconsideration, which was granted. An additional hearing was conducted, and Dr. Schenk, a clinical psychologist, gave further testimony regarding the harm the child was likely to suffer in the event parental rights were not terminated. On October 13, 1988, the trial court entered an interlocutory or intermediate order finding “the continued foster care placement to be harmful to the child and that a permanent placement can only be achieved through termination of parental rights,” and “that continued foster care placement, of an indefinite duration, is sufficiently harmful in and of itself to meet the requirement of harm to the child.”

On November 23, 1988, the juvenile court issued a final Order Terminating Parental Rights. This order contained detailed findings of fact, including inter alia the following: “Only the psychological examinations have been fully complied with” regarding the specific conditions and requirements of the consent temporary order of February 1987. “There is significant failure by [appellant] to comply with the [c]ourt ordered plan of August 8, 1986. ... By the time of the hearing date, only forty per cent of the amount [of child support] ordered had been paid. . . . The last date when actual support was paid was March 23, 1987. . . . This [c]ourt ordered [appellant] to have regularly scheduled visitation with the child, that is, at least twice a week. Out of the 136 possible visits only 32 were actually carried out. No justifiable reason was given by [appellant] as to her failure to visit. . . . The Court . . . finds clear and convincing evidence based on the facts in this case that there is a medically verifiable deficiency of [appellant’s] mental or emotional health of such duration or nature as to render her . . . unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child. . . . The [cjourt further finds that based on clear and convincing evidence that the continued deprivation of the above child will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. . . . The [c]ourt finds based on clear and convincing evidence that the above child’s need for bonding and permanency outweigh any reason or purpose in continuing the parental ties with the natural mother and, further, that termination of parental rights is necessary for the child’s physical, mental, emotional health and morals.” (Emphasis supplied.)

II. Operative Facts

The evidence in this record includes the following: Dr. Paul Schenk, a clinical psychologist, testified that his evaluation of the child revealed that appellant “was more of a non-person in [child’s] life.” It was more of “an absence of a relationship.” The likelihood of the child feeling closer to appellant or attempting to bond with her “approaches zero given that [child] has been in a family for several years now and clearly seems to view the foster parents as his functioning parents.” Under the existing conditions, it would be “unhealthy” for the child and not in his best interests to move back with the birth mother, and this situation is not expected to change in the short term. At the follow-up hearing conducted after DHR’s motion for reconsideration was granted, Dr. Schenk gave the following additional testimony. Because the child lacks a stable, permanent relationship he will, at least unconsciously, test repeatedly to see if he is a member of his foster family. The child needs stability. He has a non-relationship with his mother (appellant), so no emotional benefits accrue to him keeping her name. It is reasonable to expect that the child will be harmed by having this no-benefit, non-relationship with appellant; particularly, “it would be very reasonable to expect to see emotional harm to [child] as he continues to grow.” (Emphasis supplied.) Some of the likely outward manifestations of such harm may include: “the possibility of testing the limits”; “the sense of being somewhat of an outsider in his social network that can influence how he sees himself fitting into his peer group” (which impacts on esteem and self-image); the child could gravitate to “counter-culture” friends to belong among those who do not belong; “[i]t would be easy to see school performance being affected as one of those issues”; and “[y]ou could see it showing up in experimentation with drug use ... as a way of blocking awareness of the issue that is unpleasant for them.” Dr. Schenk concluded that he “would anticipate that there would be emotional harm occurring to [child]” if the termination of parental rights is not granted; however, he did concede that it is impossible to rule out that the child could continue in his current situation and still develop as an adjusted person.

Ms. Daughtery, foster mother, testified regarding the adjustment the child had made to her home; the sporadic visits of appellant to the child; and of the lack of any real affection being displayed during these visits between child and appellant.

Ms. Gayle, Cherokee County Department of Family & Children Services, testified that the agency could be of no further help with appellant in view of appellant’s lack of cooperation and feelings of paranoia toward the agency. She testified in detail as to the chronology of events leading to termination. Ms. Gayle observed certain visits between the child and his mother. She observed no affection demonstrated between the two; there “was no . . . love shown between them.” On the very last visit, appellant “walked down the hall, didn’t say good-bye, she didn’t hug [the child] or kiss him or anything.” At an earlier time, appellant had been hospitalized due to a suicide attempt. Ms. Gayle further testified that the child “does deserve a permanent plan for his life,” and that no further progress can be made to unite the child with its mother. Ms. Gayle stated that the child needs “security and permanency in his life,” and that she can see “no benefit” whatever to the child and harm to him in continuing to live in foster care and being visited by his biological mother.

Dr. DeFilippis, clinical psychologist, evaluated appellant on three occasions, the last being on October 13, 1987. In that evaluation, he diagnosed appellant as having a “Schizotypal personality disorder.” He testified that his diagnosis was “a character disorder, personality problems which are long term and involved a lot of paranoid type behavior. People with those kinds of problems are very. difficult to treat if not impossible. [He does not] see much change occurring in her.” Although from time to time she may become more stable and more able to cope, the problems remain. He does not believe that she has a “treatable mental [condition].” He believes there exists no strong bond between appellant and her son. He observed signs during each mental examination of “significant problems,” and appellant has evidenced some “paranoid thinking.” Appellant never expressed a definite desire to have the child returned to her and could not articulate why she did not want her parental rights terminated. Continued parental relationship would prevent the child from being adopted and obtaining a permanent stable situation. It is in the child’s best interest to develop permanent bonds whether permanent foster or permanent adoptive bonds. Dr. DeFilippis also expressly testified that he believes that in the future something is “going to happen” to disrupt appellant and put her under stress. When that occurs, he thinks “it’s likely that [appellant] might show very poor judgement [sic], might become very bizarre in her thinking, and might even be potentially dangerous . . . making decisions that are so poor, that it would put her child in danger and herself.” (Emphasis supplied.)

Appellant enumerates as error that the juvenile court lacked jurisdiction to terminate parental rights when it predicated its ruling on the possibility of an adoption; that the juvenile court improperly terminated parental rights to facilitate an adoption; and, that the juvenile court did not hear sufficient, clear and convincing evidence to justify a termination of parental rights based upon deprivation. Held:

1. Regarding appellant’s first enumeration of error of lack of jurisdiction, the juvenile court clearly had jurisdiction over the subject matter in this case, that is, termination of parental rights. Appellant’s assertions of lack of jurisdiction are without merit. OCGA §§ 15-11-1; 15-11-5 (a) (2) (c).

2. Appellant’s remaining enumerations of error in essence concern the sufficiency of the evidence to support the trial court’s order of termination of parental rights. On appeal, this court must construe the evidence most strongly to support a verdict and judgment, McLarty v. Kushner, 173 Ga. App. 432 (1) (326 SE2d 777), and every presumption and inference must be in favor thereof. Worn v. Sea-Cold Sues., 135 Ga. App. 256 (3) (217 SE2d 425).

(a) Notwithstanding the allegations contained in appellant’s enumerations of error, review of the final order of the juvenile court in toto establishes that the trial court did not terminate appellant’s parental rights on the sole ground of facilitating the child’s adoption. Compare In the Interest of J. L. G., 191 Ga. App. 904, 905 (383 SE2d 376).

(b) The facts of this case are substantially distinguishable from the facts of In the Interest of C. T., supra. Particularly, in this record there clearly exists evidence from which it reasonably can be concluded that the child is in danger of suffering in the future physical, mental, emotional or moral harm due to the mere continuance of his relationship with appellant on a visitation basis. Moreover, unlike C. T., the record contains evidence that termination of appellant’s parental rights would enable the child to achieve a more stable home life through adoption or permanent placement, and that termination would have some beneficial impact on the situation. Compare C. T., supra at 562.

(c) The record in this case includes evidence as to the necessity for stability in the child’s life through termination of appellant’s parental rights with the child. This type of evidence is analogous in effect to evidence of “foster drift.” While evidence of foster drift is not alone sufficient to support termination of parental rights, the adoptability of the child and the child’s needs for a stable home is “a factor in the determination of deprivation and continued deprivation.” In re G. M. N., 183 Ga. App. 458, 461 (359 SE2d 217); compare C. T., supra at 562 (noting no evidence that termination would allow the children to achieve a more stable home life through adoption, which could provide a basis for termination). In this case there is evidence of appellant’s lengthy and continued neglect of this child. A “lengthy and continuing neglect of . . . children, is sufficient to authorize the termination of appellant’s parental rights” at least when coupled with some other significant factor. In the Interest of A. T., 187 Ga. App. 299, 301 (370 SE2d 48). Moreover, parental unfitness supporting a termination of parental rights can be caused “ ‘ “either by intentional or unintentional misconduct resulting in abuse or neglect of the child or by what is tantamount to physical or mental incapacity to care for the child.” ’ ” In re N. F. R., 179 Ga. App. 346, 348 (346 SE2d 121). In this regard, OCGA § 15-11-81 (b) (4) (B) (i) provides that in determining whether the child is without proper parental care and control the court shall consider certain medically verifiable deficiencies of the parent’s mental or emotional health. The resulting deprivation, however, must be shown “ ‘ “likely to continue and likely to cause serious harm to the child.” ’ ” N. F. R., supra at 348.

“ ‘ “The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review ... is not met.” ’ ” A. T., supra at 300. “ ‘(T)he appropriate standard of appellate review ... is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost. . . .”’ J. L. G., supra at 905; In the Interest of J. A. B., 189 Ga. App. 79, 80 (374 SE2d 839); In the Interest of J. L. Y., 184 Ga. App. 254 (1) (361 SE2d 246). We find that the evidence in this case could be so viewed, and that no basis exists for reversing the judgment of the juvenile court. Compare In the Interest of A. O. S., 189 Ga. App. 860 (377 SE2d 870); In re R. L. Y., 184 Ga. App. 69 (1) (360 SE2d 636); In the Interest of T. R. G., 162 Ga. App. 177 (290 SE2d 523).

The dissent states that “there is no evidence in the record of any action on the part of appellant which has caused, or is likely to cause, harm to the child,” and concludes the requirements of OCGA § 15-11-81 (b) (4) (A) (iv) were not met by clear and convincing evidence. Suffice it to say society now understands that the emotional harm to which a child can be subjected may be every bit as crippling in effect as physical harm. This record is replete with circumstantial evidence which clearly and convincingly establishes that E. P. N. was emotionally harmed and would likely be so harmed in the future by appellant. In fact, an expert testified that appellant “might even be potentially dangerous” to her child.

An appellate court determines sufficiency of the evidence; it does not weigh evidence or determine witness credibility. See generally Horney v. Lawrence, 189 Ga. App. 376 (3) (375 SE2d 629); Work Clothes Outlet v. M & S Purchasing, 188 Ga. App. 179 (1) (372 SE2d 509). The evidence in this case is sufficient, when viewed under the above discussed appellate standards, to affirm the trial court’s ruling. It would be nothing short of draconian for this court to usurp the trial court’s lawful functions by re-weighing evidence and re-deciding witness credibility, when as a result we are subjecting this child to the likelihood not only of continuing emotional harm, but to a situation which in all likelihood might even be potentially dangerous. This we decline to do. Our state constitution provides “[protection to person and property is the paramount duty of government.” (Emphasis supplied.) Ga. Const, of 1983, Art. I, Sec. I, Par. II. This constitutional right of protection extends equally to children as well as adults. “In the United States, the parens patriae function belongs with the states.” Black’s Law Dictionary (5th ed.), p. 1003. We should not pay mere “lip service” to this grave obligation by preserving in legal fiction an already harmful and deteriorated parent-child relationship.

Judgment affirmed.

Carley, C. J., Banke, P. J., Pope and Beasley, JJ., concur. Been, P. J., McMurray, P. J., Sognier and Benham, JJ., dissent.

Benham, Judge,

dissenting.

I must dissent from the majority’s opinion affirming the juvenile court’s termination of appellant’s parental rights. Based on testimony of a child psychologist that the mother is a “non-entity” in the child’s life; that there is an absence of a mother-son relationship between the two; and that the child should be permanently placed so that he can develop stability, the trial court found by clear and convincing evidence that the continued deprivation of the child will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. I cannot agree that this testimony establishes by clear and convincing evidence the requisite harm under OCGA § 15-11-81 (b) (4) (A) (iv) inasmuch as there is no evidence in the record of any action on the part of appellant which has caused, or is likely to cause, harm to the child. Compare In re G. M. N., 183 Ga. App. 458, 460 (359 SE2d 217) (1987) (evidence that the natural mother “drank heavily” and was “in and out of jail”); In the Interest of J. M. K., 189 Ga. App. 140, 141 (375 SE2d 131) (1988) (evidence that the natural father left the children outside at 5:30 a.m. in the pouring rain); In the Interest of A. T., 187 Ga. App. 299 (1) (370 SE2d 48) (1988) (evidence that the natural mother physically abused the child and withheld medical care). The danger which is inherent in the juvenile court’s order is that the “harm” requirement under OCGA § 15-11-81 (b) (4) (A) (iv) can be met by merely establishing that the child is in an indefinite foster-care situation, without any showing that the parent whose rights are sought to be terminated forever has done anything, or is likely to do anything, to cause physical, mental, emotional, or moral harm to the child.

“Georgia law has consistently favored the preservation of the relationship between biological parents and their children” (Murphy v. Suddeth, 189 Ga. App. 212 (1) (375 SE2d 253) (1988)), and “[t]his court has long recognized that termination of parental rights is a severe measure. [Cit.]” In re N. F. R., 179 Ga. App. 346, 348 (346 SE2d 121) (1986). The court is authorized to consider, “as an element in continued deprivation under [OCGA] § 15-11-81 (a) (4), and as a matter of the child’s best interest in its ‘need for a stable and secure home’ under § 15-11-81 (a), the severe detrimental effects of prolonged stay in foster care undér the ephemeral hope of change but without the real prospect of parental improvement that would justify such a prolonged stay in foster care. . . ” In re G. M. N., 183 Ga. App. 458 (1) (359 SE2d 217) (1987). However, “[a] court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, educational, or even moral advantages elsewhere.” In re L. L. B., 178 Ga. App. 235, 238 (342 SE2d 715) (1986).

Decided November 30, 1989.

Conrad & Abernathy, Steven M. Campbell, for appellant.

Michael J. Bowers, Attorney General, Carol A. Cosgrove, William C. Joy, Senior Assistant Attorneys General, Kipling L. McVay, for appellee.

While giving due deference to the juvenile court as the trier of fact, I do not find that the requirement of OCGA § 15-11-81 (b) (4) (A) (iv) was met by clear and convincing evidence; therefore, I respectfully dissent.

I am authorized to state that Presiding Judge Deen, Presiding Judge McMurray, and Judge Sognier join in this dissent.


author: Beasley, Judge.

text:
    A89A1962.
    FAVOUR v. FOOD LION, INC. et al.
    (389 SE2d 22)
   Beasley, Judge.

Plaintiff appeals the grant of summary judgment to defendants, the owner of the premises on which she slipped and fell and the operator of the owner’s immediately adjacent grocery store. The question is whether the undisputed evidence shows as a matter of law that the defendants did not breach the duty imposed by OCGA § 51-3-1. It requires them to “exercise ordinary care in keeping the premises and approaches safe.”

Plaintiff fell on ice as she was getting into the family van which her husband had pulled up to the front of the store. He had parked it so that the area which had been cleared of ice by the store employee was outside the van’s double doors whereas there was ice outside the passenger door. This occurred after plaintiff went into the store and bought groceries, when there was snow and ice on the roads after a storm the day before, most stores were closed, and the schools in plaintiff’s county were closed. Plaintiff was aware of the ice in the parking lot and the shoveled area. She had traversed the ice and snow when going from the van into the the store. She appreciated its dangerousness, having lived in the North. She was familiar with the store and its access areas, as she had been there before. Just before she fell her husband told her to be careful because it was icy.

As a matter of undisputed fact, defendants did not have superior knowledge of this admittedly visible condition created by the elements or of its patent dangerousness. Sears, Roebuck & Co. v. Reid, 132 Ga. App. 136 (207 SE2d 532) (1974). As a matter of undisputed fact, plaintiff chose to get into the van from the icy sidewalk rather than from the cleared path. She had seen the ice on that area. She was aware of the specific condition and of its dangerousness. She cannot recover. Chisholm v. Fulton Supply Co., 184 Ga. App. 378 (1) (361 SE2d 540) (1987). See Rogers v. Atlanta Enterprises, 89 Ga. App. 903, 906 (81 SE2d 721) (1954); Harris v. Star Svc. &c. Co., 170 Ga. App. 816 (318 SE2d 239) (1984); Alterman Foods v. Munford, 178 Ga. App. 214 (342 SE2d 480) (1986). Compare Little v. Liberty Savings Bank, 191 Ga. App. 732 (382 SE2d 734) (1989). There was no duty to warn her of a condition of which she had knowledge at least equal to that of defendants. Garnett v. Mathison, 179 Ga. App. 242 (2) (345 SE2d 919) (1986); Alterman Foods v. Ligon, 246 Ga. 620, 622-3 (272 SE2d 327) (1980). See also Roberts v. Gardens Svcs., 182 Ga. App. 573 (356 SE2d 669) (1987) [physical precedent].

Appellants rely heavily on Todd v. F. W. Woolworth Co., 258 Ga. 194 (366 SE2d 674) (1988), but in that case there was a dispute of fact about whether the proprietor had superior knowledge of the presence of ice and its slipperiness. There was evidence that the patron was unaware of any ice, it was glazed ice, the store manager had slipped on it himself, others had slipped on it, and the patron was exiting into an area on the opposite side of the store from the one she used to enter.

This is a “plain, palpable, and indisputable” case not calling for resolution by a jury. See Laseter v. Clark, 54 Ga. App. 669, 670 (1) (189 SE 265) (1936); North DeKalb Little League v. Holland, 119 Ga. App. 439, 440 (168 SE2d 169) (1969); Bowman v. Richardson, 176 Ga. App. 864 (338 SE2d 297) (1985).

Judgment affirmed.

Carley, C. J., concurs. McMurray, P. J., concurs in the judgment only.

Decided November 30, 1989.

Stephen E. Curry, for appellant.

Timothy S. Mirshak, Glover & Blount, Percy J. Blount, for appellees.


text:
    A89A1985.
    STONE v. DAYTON HUDSON CORPORATION.
    (388 SE2d 909)
   Birdsong, Judge.

This is an appeal from the trial court’s order granting appellee/ defendant’s motion for summary judgment in a slip and fall case.

On July 14, 1986, after 10:00 p.m. when the B. Dalton bookstore was closed, the manager swept and applied a floor treatment mixture with a sponge mop to the parquet wood floor. This floor treatment is not classified as wax, but is a mixture of four parts of mineral spirits and one part of linseed oil. This was the first time the manager had ever personally applied this treatment; she followed the procedure recommended in the bookstore manual. The manual does not contain drying-time instructions. Past experience indicates overnight drying is generally required.

The next morning at 9:00 a.m., before the store opened, the manager and another employee checked the floors. The floor inspection took approximately ten minutes. A small wet area was found in the back of the store; no slick areas were found, but some tacky areas or spots were detected under the edges of the tables. These areas were sticky to the touch. The tables were located between the right and center aisles in front of the book racks. Before opening the store, the manager placed a sign between the two cash registers that read “Be careful, floor is wet in spots” or words to that effect. The sign was displayed as an extra precaution; it was to protect against customers stepping in wet spots “[i]n case there was something [the manager] had missed.”

Between 1:00 p.m. and 2:00 p.m. that afternoon, appellant and her companion entered the bookstore. Appellant patronized the store four or five times a year. The floor was well taken care of and clean; it was not dirty and littered. Appellant entered on the right side of the store; she went to one of the tables and selected a children’s book for purchase. Appellant walked to several points in the store and was coming up the right aisle looking at books when she fell. She did not catch her foot on anything, as the aisle was very clean. Appellant described her sensory perception of the fall by asking the rhetorical question “[h]ave you ever slipped on ice.” She further testified that “I was walking along and, all at once, both feet just went completely out from under me” simultaneously in a forward-type motion. Appellant has no specific explanation for why she fell, except that both feet went out from under her; she slipped. She just knows “that I hit something and my feet just flew out from under me. I hit a slicky spot.” (Emphasis supplied.) When appellant was on the floor, she was in pain and cannot remember if the floor felt wet or slippery. She did not get any substance or stain on her clothes during the fall, and she did not go back and feel the floor area after her fall. She did not have anything on her hand; it was not greasy or oily. She did not check the bottoms of her shoes; she was in pain and was not thinking about checking clothes and shoes. Although in pain, appellant went to the cash register to pay for her purchase. At the register, she observed for the first time the sign that said, “Careful Wet Floor” or “Floor Slippery,” or words to that effect. Appellant and her companion remarked to the manager that the sign was in the wrong location. The manager told appellant and her female companion that “they waxed the floor and it hadn’t dried in spots.”

The manager observed appellant walking toward a table to look at a book. As appellant was walking, “[S]he was looking at a book on top of the table.” When appellant fell, the manager could only see her from the hips down, and did not see appellant doing anything in a careless-looking manner. When appellant fell she was beside table two. The manager told appellant the floor had been treated the night before, but does not recall saying anything else. At some point in time after appellant left the store, the manager “walked over to [the floor] where [appellant] had been standing and . . . touch[ed] the floor with [her] hand and it was dry.” Held:

1. “ ‘[0]n summary judgment, the movant has the burden of showing “there is no genuine issue as to any material fact and that [movant] is entitled to a judgment as a matter of law.” [Cit.] When, as in the instant case, the movant is the defendant, [it] has the . . . burden of piercing the plaintiff’s pleadings and affirmatively negating one or more essential elements of the complaint.’ [Cit.] In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cits.]” (Emphasis supplied.) Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843).

2. “When a motion for summary judgment is made and supported as provided in [OCGA § 9-11-56 (e)], an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in [OCGA § 9-11-56], must set forth . . . facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” (Emphasis supplied.) OCGA § 9-11-56 (e). Thus, once a movant/defendant pierces the opposing party/plaintiff’s pleadings, the burden shifts to the opposing party/plaintiff who “must come forward with rebuttal evidence at that time, or suffer [summary] judgment against him.” Meade v. Heimanson, 239 Ga. 177, 179-180 (236 SE2d 357). Thus, “[i]f the movant does not carry the initial burden, the opposing party is not required to produce any counter evidence.” Ga. Prac. & Proc. (5th ed.), § 23-17.

Appellant/plaintiff’s complaint included inter alia the following averments: plaintiff shows that defendant has applied wax to the parquet floor causing it to have a slippery surface, which defendant knew or should have known constituted a danger to its customers; plaintiff slipped on the floor and fell causing serious injuries to her person; and, plaintiff shows that all her injuries and damages are a direct result of and were approximately caused by the negligence of the defendant/appellee in failing to properly maintain the premises. The complaint placed appellee on reasonable notice that plaintiff’s cause of action was based on the allegedly negligent manner in which it applied a wax or other slippery substance to the floor or in its negligent failure to properly maintain the floors, having actual or constructive knowledge of the resulting danger to customers, following the application of this substance. See generally Alterman Foods v. Ligon, 246 Ga. 620, 624-625 (272 SE2d 327).

The deposition testimony of appellee’s store manager contained inconsistencies for which the record shows no reasonable explanation as to two pertinent matters. First, unexplained inconsistencies exist regarding whether the manager personally inspected the entire floor of the bookstore before the incident. The manager testified by responding in the affirmative to the question, “[d]o you think you walked on every square inch of the walkway when you did that check,” and testified that she “walked all through the store and did a sight check of the floors.” (Emphasis supplied.) However, she also testified that another employee helped her check the floor, and testified that she does not recall who checked the center aisle. (The record contains no deposition or affidavit of this employee.) Thus, an inconsistency, not reasonably explained, exists as to whether the manager did in fact walk over and spot check every square inch of the walkway.

Secondly, an inconsistency, not reasonably explained, exists as to the method used by the manager before the incident to check various parts of the floor. When initially asked how she checked the floor, the manager testified that she “did a sight check of the floors.” The manager was then asked if she had checked the floors by “scuffling [her] feet,” and she testified, “[n]o, I did not.” Immediately thereafter the manager was asked “I take it you . . . were doing that simultaneously?” and she testified, “yes.” Subsequently, the manager was asked “[a]nd I take it you didn’t check [the floor] with your hand,” and she testified, “I don’t recall.” Immediately thereafter she was asked, “You don’t know for sure, you might have checked it with your hands, too?” and she then testified, “That’s possible, yes.”

The “contradictory testimony rule” applies to testimony presented in support or response to a motion for summary judgment. This rule provides that “a party’s self-conflicting testimony is to be construed against him. . . .” Gentile v. Miller &c., Inc., 257 Ga. 583 (361 SE2d 383); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). If a reasonable explanation is offered for the contradiction, however, the inconsistency will not be construed against the party witness. The burden rests on the party giving the contradictory testimony to tender the reasonable explanation, and whether this has been done is an issue of law. Gentile, supra at 583. But if no explanation is given for the conflict in testimony or “a party’s explanation ... is determined to be unreasonable, the trial court must eliminate the favorable portions of the contradictory testimony and then take all testimony on motion for summary judgment, ‘ “as it then stands, and construe it in favor of the party opposing the motion in determining whether a summary judgment should be granted.” ’ ” Id. As no reasonable explanation for the inconsistencies appears in the record, this latter rule shall be applied.

The manager, however, further testified that after appellant departed the store she walked over to where appellant “had been standing and ... I did touch the floor with my hand and it was dry.” (Emphasis supplied.) The manager did not expressly testify whether she examined the floor at the location where appellant slipped and fell; did not testify that she examined the surrounding area where the slip and fall appeared to have occurred; did not testify as to how soon after appellant departed the premises that the floor where she had been standing was touched; and, previously testified she could only observe appellant from the waist up at the time the fall occurred. In Alterman Foods, supra at 625, the court stated, “[defendant introduced testimony of witnesses who had examined the floor immediately after plaintiff’s fall and who found neither a foreign substance nor any other defect in the floor. Defendant also introduced evidence that the floor had been waxed two and one-half days prior to plaintiff’s fall and had been trafficked during that time by other customers. Defendant’s evidence was sufficient to pierce the pleadings of the plaintiff and to shift the burden to her to produce issuable evidence or suffer judgment.” (Emphasis supplied.) In Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257 (1) (366 SE2d 785), citing Food Fair v. Mock, 129 Ga. App. 421, 422 (199 SE2d 820), we held that the plaintiff’s pleadings, averring that there was a liquid at the fall site, were pierced by opposing party’s deposition testimony that the manager had inspected the floor where appellee had fallen and had found it to be dry. In this case, appellant/plaintiff did not aver that she had slipped in anything wet, rather she averred that a negligently maintained slippery floor surface was the direct and proximate cause of her fall and injury. Thus, the mere fact that the floor might be dry, unlike the situation in Winn-Dixie, supra, would not per se pierce the pleadings, as the floor could be dry and yet be slippery or “slicky.” In Food Fair, supra at 422, the court found the pleadings had been pierced by affidavits showing that “as [the customer] was lying on the floor and after she was removed, each affiant ‘carefully examined the floor ... in the immediate surrounding area adjacent thereto’ and that in said area there was no defect in the . . . (floor) or trash, spilled liquids, sand, grit, leafy vegetables or any foreign matter whatsoever. There were no counter-affidavits or other evidence submitted in opposition to the motion for summary judgment.” (Emphasis supplied.) Id. In the instant case, there is no such direct evidence either of a reasonably prompt or of a reasonably thorough inspection of the fall area.

Decided November 30, 1989.

Reynolds & McArthur, Charles M. Cork III, for appellant.

Hart & Sullivan, Elaine W. Whitehurst, Stephen P. Riexinger, for appellee.

In view of the posture of the record, particularly in light of the proper application of the “contradictory testimony rule” of Gentile, supra, the absence of any evidence as to the time the floor was checked after appellant departed the premises, the lack of direct evidence that the area where she slipped and fell was examined, the lack of evidence that the floor that was examined was not slippery or slick as averred, and the summary judgment rules that inferences are to be drawn against the movant and in favor of the opposing party, we find that appellee did not pierce the pleadings. Accordingly, the burden was not shifted to appellant to present any “issuable evidence.” See Alterman Foods, supra at 625.

Judgment reversed.

Deen, P. J., and Benham, J., concur.


text:
    A89A2194.
    EVANS v. BELTH.
    (388 SE2d 914)
   Birdsong, Judge.

Appellant Warren D. Evans, Commissioner of Insurance of this state, appeals the order of the trial court granting appellee Joseph M. Belth’s motion for summary judgment.

Pursuant to OCGA § 50-18-70 et seq., appellee had requested access to “all of the Insurance Regulatory Information System (IRIS) material . . . received from the National Association of Insurance Commissioners (NAIC) since January 1, 1987.” Appellant sought declaratory relief in Fulton County Superior Court to determine whether these documents were subject to disclosure. Appellee filed a motion for summary judgment seeking an order requiring disclosure of the IRIS documents; the motion was granted. Appellant asserts the trial court erred as the 1989 General Assembly subsequently enacted an amendment to the insurance code which exempts these documents from the open records law, and this subsequent enactment applies in this case. Held:

1. Appellant apparently has raised this issue for the first time on appeal. Generally, this court cannot consider issues raised for the first time on appeal. Long v. Marion, 257 Ga. 431 (1) (360 SE2d 255). However, as the subsequent legislation did not become effective until after the trial court entered its order granting summary judgment, appellant could not effectively assert its applicability before the trial court. When a question cannot be raised in the trial court, we have inherent power to review to avoid clear injustice where it appears prejudicial error has occurred necessitating reversal of the trial court’s judgment. See Ga. Const. 1983, Art. VI, Sec. I, Par. IV; OCGA § 15-2-8 (7); compare McLendon v. Wilburn, 206 Ga. 646 (2) (58 SE2d 423).

2. OCGA § 50-18-70 (b), as amended, provides that “[a]ll state, county, and municipal records, except those which by order of a court of this state or by law are prohibited or specifically exempted from being open to inspection by the general public, shall be open for a personal inspection by any citizen of this state at a reasonable time and place; and those in charge of such records shall not refuse this privilege to any citizen.” (Emphasis supplied.)

OCGA § 33-2-8.1 (c), effective April 10, 1989, pertinently provides that: “The Commissioner shall investigate every licensed property and casualty insurer that is designated by the National Association of Insurance Commissioners as needing immediate or targeted regulatory attention and . . . the names of such insurers which are in formal rehabilitation, liquidation, or conservatorship. The Commissioner shall obtain from the National Association of Insurance Commissioners the necessary information to implement this subsection and, notwithstanding the provisions of Code Section 50-18-70, shall withhold from public inspection any such information received from the National Association of Insurance Commissioners under an expectation of confidentiality.” (Emphasis supplied.)

The language contained in OCGA § 33-2-8.1 (c) is plain and susceptible to but one natural and reasonable construction. In such cases, appellate courts have no authority to place a different construction upon it, but must construe it according to its terms. Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430). The statutory language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of legislative intent in its promulgation. Id. This subsection unequivocally requires withholding from public inspection of any and all information acquired from the National Association of Insurance Commissioners, provided the same was obtained under expectation of privacy by the Association at the time of information release to the Commissioner of Insurance. Thus, the question presented is whether this subsection applies to the release of documents in the case sub judice, as OCGA § 33-2-8.1 was not effective until after the trial court granted appellee’s motion for summary judgment.

It has been held that once a statutory right becomes “vested” no subsequent legislative act can impair it. Spengler v. Employers &c. Ins. Co., 131 Ga. App. 443, 450 (5) (206 SE2d 693). However, a well established exception exists that “[a] person has no vested right in statutory privileges and exemptions.” (Emphasis supplied.) Fulton Bag &c. Mills v. Williams, 212 Ga. 783 (1) (95 SE2d 848); Goolsby v. Regents of Univ. System, 141 Ga. App. 605, 607 (1) (234 SE2d 165). A subsequent legislative act can impair or destroy a statutory privilege. Thus, we must determine whether the access granted by the open records act is a grant of statutory privilege.

Although certain precedent refers to the right of the public to public records, see, e.g., Harris v. Cox Enterprises, 256 Ga. 299 (348 SE2d 448), examination thereof reveals the term “right” is being used in these cases in a broad, concrete sense to include “a power, privilege, faculty, or demand, inherent in one person and incident upon another.” Black’s Law Dictionary (5th ed.), p. 1189. Examination of the plain language of OCGA § 50-18-70 (b) reveals that it is susceptible to but one natural and reasonable construction. OCGA § 50-18-70 (b) expressly provides on its face that the statutory basis for inspection of public records is grounded on “privilege.” This intent is further confirmed by legislative history, which reflects that the 1988 amendment to Article 4 of Chapter 18 of Title 50 of the Official Code of Georgia Annotated was to provide inter alia “for certain privileges and statutory exceptions . . . [and] to provide for judicial powers and remedies and exceptions thereto.” (Emphasis supplied.) Ga. L. 1988, p. 244. As vested rights are not affected, subsequent repeal or material modification of a statute which forms the basis of statutory privilege or exemption, prior to the conclusion of litigation as to the validity or scope of that privilege or exemption, destroys or modifies, respectively, the privilege or exemption originally provided by that statute. See Fulton Bag, supra at 787; compare Goolsby, supra at 607-608; General Motors Acceptance Corp. v. Saliba, 260 F2d 262 (2) (USCA 5th Cir.). When no vested right will be adversely affected, we are required to apply the law as it exists at the time of our decision, rather than the law prevailing at the time of rendition of the judgment under review. Hill v. Willis, 224 Ga. 263, 264 (1) (161 SE2d 281); McGregor v. State, 119 Ga. App. 40 (2) (d) (165 SE2d 915); compare Calhoun v. State Hwy. Dept., 223 Ga. 65 (153 SE2d 418) with Fulton Bag, supra.

Decided November 30, 1989.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, William B. Hill, Jr., Deputy Attorney General, Patricia T. Barmeyer, Senior Assistant Attorney General, Nancy M. Gallagher, Assistant Attorney General, for appellant.

King & King, David G. King, for appellee.

Accordingly, the order granting summary judgment will be reversed and this case remanded. The trial court shall determine whether the operative facts before it establish that the information sought to be disclosed is required to be withheld by OCGA § 33-2-8.1 (c).

Judgment reversed and case remanded with direction.

Deen, P. J., and Benham, J., concur.