author: Eldridge, Judge.

text:
    A97A0537.
    STATE OF GEORGIA v. FOOTE.
    (483 SE2d 628)
   Eldridge, Judge.

Appellee Otis Bernard Foote objected to the State’s complaint for forfeiture. The trial court sustained appellee’s objection and denied the State’s complaint. The State appeals. We affirm.

The record shows that officers of the Athens-Clarke County Police Department went to Eastwood Courts apartments at approximately 4:00 p.m. in order to serve an arrest warrant on an individual for a charge of selling cocaine. This prior purchase which resulted in the issuance of the arrest warrant had allegedly been made at a transformer station in the rear of the apartments, a location described by the officers as a “high drug sale area.” As the officers approached the area, they saw several individuals, including appellee Foote, standing around the transformer. Foote was not the person upon whom the officers had come to serve the warrant; however, he ran when he saw them. While appellee was running, he threw down a plastic baggie which was retrieved by the officers and which appeared to contain a controlled substance. Foote was caught by the officers and arrested. Money in the amount of $826 was found on the appellee and was seized. The contents of the baggie were tested and showed positive for cocaine. The total weight of the substance was 1.8 grams. A test for purity was not performed by the crime lab, and there was no testimony as to the amount of cocaine in the sample.

Prior to the disposition of the criminal charges facing appellee, the State filed a complaint for forfeiture against the $826 pursuant to OCGA § 16-13-49, which permits the forfeiture of property in drug cases involving more than “one gram of cocaine.” OCGA § 16-13-49 (e). Appellee objected to the forfeiture, and after hearing argument on the issues, the trial court sustained the objection. The trial court found that the State failed to prove that the 1.8-gram sample of contraband seized from Foote, which sample tested positive for cocaine, was more than one gram of actual cocaine so as to support forfeiture pursuant to OCGA § 16-13-49 (e). Held:

1. The State contends that the trial court misinterpreted OCGA § 16-13-49 (e) as requiring more than one gram of “pure” cocaine to support forfeiture. We do not agree with the State for the reasons that follow.

Because it is a special statutory proceeding, the forfeiture statute, OCGA § 16-13-49, is strictly construed. State v. Henderson, 263 Ga. 508 (436 SE2d 209) (1993). In construing a statute, a court must first look to the literal meaning thereof; if the language of the statute is plain and does not lead to absurd results, the court simply construes it according to its terms. Jones v. Sauls, 213 Ga. App. 55, 56 (443 SE2d 693) (1994). Accordingly, we look to the plain meaning of OCGA § 16-13-49 (e), which states in pertinent part that “[a] property interest shall not be subject to forfeiture under this Code section for a violation involving one gram of cocaine or less[,]” and we apply the plain meaning to the question raised herein.

The query under the facts in the case sub judice is whether evidence that a 1.8-gram sample is “positive” for cocaine meets the State’s burden of proof under the statute. The answer, governed by the plain language of the statute, is no. The State must demonstrate that the sample consists of more than “one gram of cocaine” in order to sustain forfeiture under OCGA § 16-13-49, not simply that the sample, more than a gram, is “positive” for some undetermined amount of cocaine. Moreover, the State’s arguments demonstrate the correctness of this interpretation.

The State contends that “if the Legislature had intended to require a one gram minimum of ‘pure’ cocaine, it would have included this more specific language in the statute.” In fact, the Legislature did specify “pure” cocaine by referring to the contraband as cocaine, rather than “a mixture thereof” or simply a “controlled substance.” See OCGA §§ 16-13-21 (4); 16-13-30 (a); 16-13-31 (a) (1). A review of Articles 1 through 5 of Chapter 13, Title 16, of the Official Code of Georgia demonstrates the depth and breadth of the legislature’s attempts to deal with crimes involving controlled substances of all types, quantities, and mixtures. Such review shows, to quote the State, “that the Legislature has considered the issue of cocaine purity in drafting many statutes . . . [and] the Legislature is aware of the distinction between pure and mixed controlled substances. Further, the fact that the Legislature chose to impose the additional requirement of minimum purity levels in certain, but not all, of these statutes illustrates the Legislature’s desire to distinguish situations in which a minimum purity level is intended”; as it, likewise, illustrates the legislature’s ability to distinguish situations in which no purity level is intended. In other words, if the legislature had intended for something other than “cocaine” to support forfeiture under the statute, the General Assembly could easily have said so. Clearly, then, the legislature’s considered decision to require, at a minimum, more than “one gram of cocaine” in order to sustain forfeiture under OCGA § 16-13-49 means exactly that: the involvement of more than a gram of cocaine, and not a mixture of more than a gram, or more than a gram of a controlled substance. See also White v. State, 264 Ga. 547 (448 SE2d 354) (1994) (plain meaning of OCGA § 16-13-49 does not permit forfeiture based upon possession of counterfeit controlled substances).

We are aware, as appellant advises, that testing for purity levels in order to meet the State’s burden of proof under OCGA § 16-13-49 may place an additional strain upon crime laboratory resources, as well as State funds. Nonetheless, the State’s interpretation of the statute cannot be engrafted upon the plain language of the act simply to avoid the potential for added responsibility and expense. Further, appellant’s invitation to this Court to so interpret the statute judicially must be declined as such matters are, perforce, addressed to the legislature. “If the legislature does plainly and distinctly declare its intention, the act is not open to construction; it needs and can receive none. It stands self-interpreted, and courts have nothing to do but to enforce it.” (Citations and punctuation omitted.) Aldridge v. Fed. Land Bank &c., 203 Ga. 285, 289 (46 SE2d 578) (1948).

Consequently, we conclude that the trial court did not err in denying the State’s complaint for forfeiture pursuant to OCGA § 16-13-49.

2. The State also argues that the trial court erred in denying the forfeiture complaint because Foote “failed to prove by a preponderance of the evidence that he qualified for an ‘exception’ to forfeiture found in OCGA § 16-13-49 (e).” This argument is meritless. While OCGA § 16-13-49 (e) (1) through (5) contain exceptions to forfeiture, that portion of OCGA § 16-13-49 (e) about which the appellant complains does not state an exception; instead that portion of the statute sets forth a requirement that the State prove a violation of the Georgia Controlled Substances Act involving more than a gram of cocaine before any property interest may be subject to forfeiture under OCGA § 16-13-49. Obviously, this requirement is not an “exception” to forfeiture, but is an essential element of proof if the State intends to proceed under the statute.

In the instant case, the State had the initial burden to prove, prima facie, that the $826 was subject to forfeiture under OCGA § 16-13-49, which proof included evidence that the contraband involved was more than a gram of cocaine. The trial court found that the State failed to meet its initial burden. There was no error in the assignment of proof.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

Decided March 5,1997.

Harry N. Gordon, District Attorney, John A. Pursley, Assistant District Attorney, for appellant.

James W. Smith, for appellee.

       The plaintiff in a forfeiture action has the initial burden of presenting a prima facie case that the defendant’s property is subject to forfeiture. State of Ga. v. $640,786 in U. S. Currency, 712 FSupp. 180 (N.D. Ga. 1989).

       Unless the seized sample, one gram or less, is used to facilitate a sale or transaction involving controlled substances, a situation that is not before this Court. OCGA § 16-13-49 (e).

       Unless the evidence also demonstrates that more than a gram of cocaine is contained in the mixture or controlled substance.


source: Caselaw Access Project

license: Public Domain

text:
    A97A0555.
    HAMMOCK et al. v. BANK SOUTH.
    (483 SE2d 668)
   Eldridge, Judge.

The State Court of Cobb County granted a motion for summary judgment in favor of appellee Bank South. Appellants appeal.

From the record before us, it appears that in 1988, appellants obtained an original $25,000 loan, followed by a $725,000 construction loan, from Chattahoochee Bank (hereinafter “Bank South”) in order to build a retail shopping center in Marietta, Cobb County. Later that year, appellants attempted to have the construction loan converted into a 30-year mortgage loan; Bank South refused to provide such financing, and appellants began searching for an institution to provide permanent mortgage financing.

Appellants contacted Decatur Federal Savings & Loan (hereinafter “Decatur Federal”) and on December 9, 1988, Decatur Federal agreed to give appellants a 30-year mortgage loan of up to $810,000. As a condition precedent to said loan, Decatur Federal required appellants to obtain additional collateral for the loan; appellants were to “provide lender with an irrevocable Letter of Credit drawn on a bank acceptable to lender in the amount of $125,000.”

Appellee Bank South was informed of Decatur Federal’s terms, and with the understanding that Bank South’s $725,000 construction loan to appellants would be paid off with the proceeds from the Decatur Federal mortgage loan, Bank South agreed to issue on appellants’ behalf an unsecured $125,000 irrevocable Letter of Credit which would be payable upon demand should appellants default on the Decatur Federal loan. On January 31, 1989, the Letter of Credit on behalf of the customer, appellants, was issued by the issuer bank, Bank South, to the beneficiary, Decatur Federal. Also on January 31, 1989, a Deed to Secure Debt was signed by appellants giving Decatur Federal security interest in the shopping center in exchange for a mortgage loan of $750,000. Bank South’s $725,000 construction loan was paid off.

Appellants defaulted on the Decatur Federal loan. Decatur Federal made demand on the Letter of Credit and received $125,000 from Bank South. On September 1, 1992, Decatur Federal foreclosed on the shopping center pursuant to the Deed to Secure Debt; Decatur Federal purchased the property at public auction for $400,000. Within 30 days, Decatur Federal sought to confirm the foreclosure sale in Cobb Superior Court pursuant to OCGA § 44-14-161. During the pendency of these proceedings, Decatur Federal sold the property for $300,000. Thereafter on February 16, 1993, the trial court denied the confirmation, finding that the fair market value of the property was at least $575,000. Decatur Federal, thus, did not pursue a deficiency judgment against appellants for the approximately $225,000 outstanding balance remaining on appellants’ debt to them.

Eleven months later, on December 27, 1993, appellants signed a promissory note renewing their obligation to Bank South for the original $25,000 loan for “working capital,” which note was in the amount of $24,705.22. An additional six months later, on July 1, 1994, appellants signed a promissory note renewing their obligation to Bank South for the amount paid on their behalf under the Letter of Credit, which note was in the amount of $122,542.51.

Appellants defaulted on both promissory notes. Bank South brought suit. Pursuant to motion, the trial court granted summary judgment to the bank, finding that there were no genuine issues of material fact to be tried. Held:

In their sole enumeration of error, appellants contend that the trial court erred in granting summary judgment. Appellants contend that Bank South is actually suing for recovery on the $125,000 Letter of Credit, the proceeds of which went to Decatur Federal upon appellants’ default on the Decatur Federal mortgage loan and were used to reduce the appellants’ $750,000 indebtedness to Decatur Federal on the mortgage loan, a debt which was further reduced by Decatur Federal’s subsequent foreclosure sale on appellants’ property. Appellants argue that further reduction in the Decatur Federal debt by way of suit against them was barred by the February 16, 1993 court order denying the confirmation of the foreclosure sale. Thus, appellants argue that by attempting to recover under the Letter of Credit the $125,000 which was used to reduce their $750,000 secured mortgage loan debt to Decatur Federal, Bank South is, in fact, attempting to recover the equivalent of a deficiency judgment, which action is precluded by the denial of confirmation of the foreclosure sale pursuant to OCGA § 44-14-161. In support of this argument, appellants cite Redman Indus. v. Tower Properties, 517 FSupp. 144 (N.D. Ga. 1981).

Redman Indus., a federal district court case: (1) has absolutely no binding precedential value; (2) involved an indemnification agreement for an unspecified amount with regard to “any loss” suffered, as opposed to a specific, contractual obligation under a Letter of Credit as in this case; (3) involved an agreement to indemnify another against a loss in an amount to be determined by the actions (or lack thereof) of parties other than the indemnifier, as opposed to a mutuality of performance and specific obligation arising from a contractual agreement between the two parties involved, as in the instant case; and (4) concerned multiple, overlapping indemnification promises made by individual real estate developers with interests in the same property, as opposed to the involvement of two separate banking entities acting at arm’s length in separate transactions involving the appellants, such as in the case sub judice. Thus, Redman Indus., supra, is distinguishable on both the law and the facts from the instant case.

However, more importantly, appellants’ arguments are totally without merit as the instant case does not involve the Letter of Credit. The contractual obligations upon which this suit is grounded arose under the two promissory notes signed by appellants. Defects, if any, in appellants’ prior contractual obligations to Bank South were cured when appellants voluntarily reassumed their debt and renewed their obligations by signing the promissory notes. First State Bank &c. Co. v. Young, 202 Ga. App. 566, 567 (415 SE2d 18) (1992); Coast Scopitone, Inc. v. Self, 127 Ga. App. 124, 127 (192 SE2d 513) (1972). Accordingly, appellants’ arguments present no material issue of fact to be tried in this action, and there was no error in granting appellee’s motion for summary judgment. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Judgment affirmed.

Ruffin, J., and Senior Appellate Judge Harold R. Banke concur.

Decided March 5,1997.

Talley & Darden, David P. Darden, for appellants.

King & Carragher, Joseph R. Carragher, for appellee.

       Chattahoochee Bank is a wholly owned subsidiary of Bank South.

       Unlike the scenario in Redman Indus., supra, wherein the plaintiff’s refusal to take advantage of its ability to reduce its indebtedness to a third party precluded its recovery for the amount of the debt from the guarantor defendant, appellants in the instant case owed Bank South the unsecured amount of $125,000 as soon as the appellants defaulted and the bank paid said amount to Decatur Federal on appellant’s behalf under the Letter of Credit. Thus, regardless of the subsequent success or failure of the Decatur Federal foreclosure sale, the $125,000 was owed to Bank South by the appellants. Further, in order to fall more squarely within the ambit of Redman Indus., supra, appellants attempt to distance themselves from their obligation to Bank South under the Letter of Credit by repeatedly asserting that said Letter was “negotiated between Bank South and Decatur Federal,” and that the Letter of Credit was “issued directly to Decatur Federal.” However, such assertions fail in their obvious purpose. Clearly, the Letter of Credit was issued on appellants’ behalf. See OCGA § 11-5-103 (1) (g). Simply because the institutions involved negotiated the letter for the appellants does not disassociate appellants from their contractual obligation thereunder. No one forced the loan, or the requisite conditions precedent to receiving the loan, upon appellants, and we have difficulty believing, as appellants’ arguments suggest, that the specific and identified price of doing business was not, at the time, knowingly and willingly entered into as evidenced by appellants’ signatures on all relevant documents.


author: Johnson, Judge.

text:
    A97A0662.
    TONEY v. THE STATE.
    (483 SE2d 627)
   Johnson, Judge.

A jury found William Toney guilty of burglary. He appeals from the judgment entered on that verdict asserting that the conviction is not supported by sufficient evidence. On appeal, the presumption of innocence no longer prevails, we view the evidence in the light most favorable to the verdict and we do not speculate which evidence the jury chose to believe or disbelieve. Gurlaskie v. State, 196 Ga. App. 794 (1) (397 SE2d 66) (1990). Evidence was presented at trial as follows. A police officer on routine patrol at 3:00 a.m. saw Toney standing outside a clothing store. When the officer made eye contact with him, Toney turned and walked down an alley. His suspicions aroused, the officer drove his patrol car down the alley where he saw Toney and two other people standing by a car which had its trunk open. A bag of tools, a large screwdriver and some chisels were found in the trunk of the car. Several office machines were found on the floorboard in the back of the car. The officer, and other police who had arrived as backup, noticed that two padlocks had been pried off the door of a storage room at the back of the clothing store. The police noticed some copy machines, too large to fit in the car, still in the storage room. The owner came to the scene and identified the equipment found in the car as belonging to him.

Toney’s argument that the state failed to establish that the storage shed was secured and that it was unlawfully entered is without merit. An element of the crime of burglary is the unauthorized entry of a building. OCGA § 16-7-1. Even if there were no evidence of forced entry, which in this case there was, breaking has not been an element of the offense since the adoption of the new criminal code in 1968. See Goins v. State, 139 Ga. App. 6, 7 (3) (228 SE2d 13) (1976); Bridges v. State, 123 Ga. App. 157, 160 (6) (179 SE2d 685) (1970).

His second assertion, that the state failed to prove that the property was recently taken from the site of the alleged burglary, misses the mark both from a factual as well as legal standpoint. The offense of burglary does not require a taking at all, much less a recent taking. “[T]he theft of any article is unnecessary to the completed offense of burglary. [Cits.]” Davis v. State, 139 Ga. App. 105, 106 (3) (227 SE2d 900) (1976). Even if such a requirement existed, the owner of the property came to the site as the crime was being investigated and identified the items in the car as belonging to him.

Decided March 5,1997.

Joseph Wiley, Jr., LaRae A. Dixon, for appellant.

J. Gray Conger, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.

Viewing the evidence in a light most favorable to the verdict, there was sufficient evidence from which a rational trier of fact could find Toney guilty of burglary beyond a reasonable doubt. Therefore, the conviction will not be disturbed. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Jackson v. State, 217 Ga. App. 485, 487 (1) (458 SE2d 153) (1995).

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


text:
    A97A0871.
    REIDLING v. HOLCOMB et al.
    (483 SE2d 624)
   Eldridge, Judge.

In May 1995, appellant Greg Reidling was shown property in the Southfield subdivision in Hall County. The salesman who showed the lot allegedly worked for appellees, Jack Waldrip and Larry Holcomb, doing business as Jack Waldrip Realty. The salesman gave appellant a copy of a subdivision plat which identified the property as Lot 4 of the subdivision; however, the plat was outdated, and the recorded revised plat identified the parcel as Lot 1 instead of Lot 4; the salesman walked the boundaries of the parcel with appellant. In his affidavit, appellant did not say that he had a title search done, that he had a lawyer represent him at the real estate closing, or that he had checked the deed records or examined the recorded plat that gave the legal description to the lot he purchased to determine what he was, in fact, purchasing.

Subsequently, appellant purchased Lot 4 of the recorded plat, which was not the parcel that he had inspected with the salesman, from appellees on May 12, 1995, and began construction of a residence upon such lot. Appellant is a home builder, by profession, and subsequently, entered into a sales contract for the house and lot with a buyer. After appellant completed approximately 75 percent of the construction of the house, appellee, Jack Hulsey, notified appellant that Hulsey owned the lot, that the subdivision plat had been revised so that Lot 4 of the old plat was recorded as Lot 1, that appellant owned Lot 4 of the recorded plat, and that Hulsey was taking possession of the house and lot, and that Hulsey would complete the construction of the house himself.

Appellant sued Waldrip and Holcomb for negligence and Hulsey for unjust enrichment. Appellant also sued Hulsey for injunctive relief. All the appellees answered. Appellees filed motions for summary judgment. As evidence in support of the motions for summary judgment, appellees submitted the warranty deed between appellant and the appellees-grantors, which described the parcel as Lot 4 of the Southfield subdivision, recorded on plat slide 153, page 123 A, of the Hall County records. Also submitted was the unrecorded plat, which differed from the recorded plat and which was revised on July 2, 1992. The sales contract signed by appellant and appellees-grantors identified the lot as Lot 4, plat slide 1793, page 230-236. Appellees also submitted an affidavit of their employee, Brenda Mulligan, who testified that on May 16, 1995, she gave appellant on his request, a copy of the correct recorded plat on plat slide 153, page 123 A. Appellant denied ever going to the office, talking to Mulligan, or receiving the plat. On July 15, 1992, Hulsey was conveyed title to Lot 1, which appellant mistakenly believed to be Lot 4.

The trial court granted the appellees’ motions for summary judgment on October 2, 1996. Appellant filed a timely notice of appeal.

1. While appellant enumerates four alleged errors of the trial court in granting the summary judgments, the appellees were entitled to the grant of summary judgment as a matter of law, because the sole proximate cause of appellant’s damages was appellant’s own conduct, which bars recovery.

OCGA §§ 44-2-26; 44-2-27; and 44-2-28 provide that survey plats can be recorded in the records of the clerk of the superior court and can be incorporated by reference into any deed as the legal description of the property, as if set forth in the deed itself. OCGA §§ 44-2-1 and 44-2-3 provide for notice to the world of such title to the legally described property. “From this wording and from the various interpretations and applications thereof by the courts, it may be safely deduced that the sole purpose and effect of recordation of both deeds of bargain and sale and of deeds and bills of sale to secure debt insofar as third parties are concerned, is to afford such third parties constructive notice of the existence of such deed. Cammon v. State, 20 Ga. App. 175 (1) (92 SE 957) [(1917)]. Insofar as priority between deeds or bills of sale to the same property from the same grantor are concerned, constructive notice as afforded by its proper recordation is sufficient. McElwaney v. MacDiarmid, 131 Ga. 97 (3) (62 SE 20) [(1908)].” City Wholesale Co. v. Harper, 100 Ga. App. 151, 154-155 (110 SE2d 561) (1959); see also Fourth Nat. Bank of Columbus v. Howell, 92 Ga. App. 868 (90 SE2d 78) (1955). “The purpose of the recording statute is to protect against the negligent. It is by that statute made the plain duty of a grantee to record his deed, thereby giving constructive notice to every one of its existence and of his rights thereunder; and since it is thus made the duty of such grantee to supply notice, every one is justified in relying upon an examination of the record and believing that a purchase of land will convey all title which the record fails to disclose is in another.” Archer v. Kelley, 194 Ga. 117, 127 (3) (21 SE2d 51) (1942).

When a deed incorporates a recorded plat by reference as the legal description, such incorporated plat has the effect as if it were written out in the deed. Crooke v. Property Mgmt. Sues., 215 Ga. 410 (110 SE2d 677) (1959); Westbrook v. Comer, 197 Ga. 433 (29 SE2d 574) (1944); Hardy v. Brannen, 194 Ga. 252 (21 SE2d 417) (1942).

OCGA § 23-1-17 provides that “[njotice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found that such inquiry might have led. Ignorance of a fact due to negligence shall be equivalent to knowledge in fixing the rights of parties.” See also Henson v. Bridges, 218 Ga. 6 (126 SE2d 226) (1962).

Appellant was under constructive notice not only as to the legal description of his own deed which incorporated the recorded plat by reference, but also as to the ownership of the lot that appellant believed he was buying but that was owned by Hulsey; a title examination would have disclosed the recorded plat and revealed his mistake prior to any conveyance. If appellant had read his own deed and determined the Lot 4 legal description from the recorded plat, then even after the erroneous purchase of the wrong Lot 4 appellant would have known which lot he had purchased and avoided the error of building on the wrong parcel. No one prevented appellant from checking the deed or plat records and ascertaining for himself the exact location of his lot in the subdivision. Thus, appellant’s acts or omissions constitute the sole proximate cause of his injuries; appellant’s failure to exercise ordinary care for his own safety or to avoid the negligence, if any, of appellees is so plain, palpable, and indisputable as to bar his recovery as a matter of law. Atlanta Obstetrics &c. Group v. Coleman, 260 Ga. 569, 570 (398 SE2d 16) (1990); Leonard-son v. Ga. Power Co., 210 Ga. App. 574, 576 (436 SE2d 690) (1993); Ridgeway v. Whisman, 210 Ga. App. 169, 170 (435 SE2d 624) (1993); Whatley v. Henry, 65 Ga. App. 668, 674 (16 SE2d 214) (1941).

2. The theory of recovery for unjust enrichment arises both at law and equity. McCullough v. Kirby, 204 Ga. 738 (51 SE2d 812) (1949); Bituminous Cas. Corp. v. Vaughn, 103 Ga. App. 660 (120 SE2d 190) (1961); U. S. Cas. Co. v. Peachtree Roxboro Corp., 103 Ga. App. 532 (120 SE2d 161) (1961). If this action were exclusively in equity, then appellant’s acts and omissions would bar any relief under the maxims of equity. Glens Falls Indem. Co. v. Liberty Mut. Ins. Co., 202 Ga. 752 (44 SE2d 543) (1947).

Decided March 5,1997.

Valpey & Walker, Harold M. Walker, Jr., for appellant.

Hulsey, Oliver & Mahar, Jane A. Range, Abbott S. Hayes, Jr., Susan D. Brown, William I. Sykes, Jr., for appellees.

The concept of unjust enrichment in law is premised upon the principle that a party cannot induce, accept, or encourage another to furnish or render something of value to such party and avoid payment for the value received; otherwise the party has been unjustly enriched at the expense of another and, in fairness and good conscience, must reimburse the other to the extent of the value conferred. Inherent in unjust enrichment is the requirement that the receiving party knew of the value being bestowed upon them by another and failed to stop the act or to reject the benefit. In the case sub judice, there is no evidence that appellee Hulsey was aware of appellant’s mistake or was standing by while the house was being built, thereby intentionally failing to act so that a greater benefit would flow to him from appellant’s negligence in building on the wrong lot.

“Where one without knowledge neither authorizes, consents to, nor ratifies another’s labor or permanent improvements to property, there is no duty imposed upon the one so benefited to make restitution. The reason is that in the absence of knowledge or authorization it would be unduly harsh to require the recipient’s return of the value of goods and services when the goods or services cannot themselves be returned. [Cit.]” Beavers v. Weatherly, 250 Ga. 546, 548 (2) (299 SE2d 730) (1983).

The trial judge did not err in granting the motion for summary judgment for all appellees.

Judgment affirmed.

Ruffin, J, and Senior Appellate Judge Harold R. Banke concur.


author: Judge Harold R. Banke.

text:
    A96A1722.
    FINCIT COMPANY II v. HARDIN et al.
    (483 SE2d 609)
   Judge Harold R. Banke.

Fincit Company II (“Fincit”), a lender, sued Allen Hardin, Earl Shell, Jr., Edward Albright, Jr., Jon E. Benson, James W. Bolding, W. James Overton, and W. Park McNair (“Hardin” collectively), general partners in Hardin Investment Associates XII (“Hardin XII”) and senior employees of Hardin Construction Group, Inc., alleging fraud and breach of loan documents. After the trial court granted Hardin’s motion for summary judgment, Fincit appealed.

To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the evidence reveals that Covenant Development Company (“Covenant”), a marketer and developer of retirement communities, bought the real property at issue in October 1986. Fincit financed this purchase by lending Covenant $3.55 million. In exchange, Covenant gave Fincit a promissory note and a security deed.

The terms of the note required Covenant to obtain at least 150 pre-construction contracts for the purchase of condominiums on the property with accompanying ten percent earnest money deposits. Construction depended upon Covenant securing thé pre-sales within a time certain and locating a lender willing to make a construction loan. If both were accomplished, the loan documents required Fincit to subordinate its security deed in favor of the construction lender. Failure to obtain the necessary pre-sales and financing meant the project was not viable, resulting in the return of the earnest money and Fincit’s recovery of the loan from Covenant or foreclosure on the property.

A month after this transaction, Covenant, Hardin XII, and Cecil Phillips, a financier, formed another general partnership, Decatur Retirement Group (“Decatur Retirement”), with the intention of transforming the land Fincit financed into a retirement condominium community called Clairmont Place. Covenant then assigned the loan to Decatur Retirement, and quitclaimed its interest in the property at issue to Decatur Retirement.

In January 1987, Decatur Retirement informed Fincit that it had obtained 159 pre-sales and was negotiating with construction lenders. Six months later, Hardin XII learned that Covenant had not placed the pre-sale purchasers’ deposits into an escrow account and had spent at least some of the deposits. Hardin XII responded by ordering an investigation by several Hardin Construction Group employees in June 1987 to determine how much deposit money had been spent. The parties dispute whether this investigation also exposed even greater financial problems including illegal side contracts involving the pre-sale agreements about which Fincit was not apprised. This dispute arose in part because appellee Benson gave, but subsequently attempted to withdraw, testimony that in the spring of 1987 he developed concerns about the legitimacy of the presales contracts and learned that 25 percent of the pre-sale documents, all of which were for investor units, were missing. In any event, in July 1987 Hardin XII informed Fincit’s president of the escrow discrepancies and diverted escrow funds. Shortly after the meeting, Fincit declared a default on its loan and threatened to foreclose on the project, but Hardin XII and Phillips purportedly convinced it not to do so.

However, in July 1987 Hardin XII also decided to limit its own liability on the project. To that end, its partners formed two corporations, into which Hardin XII’s general partners assigned their interest in Hardin XII, thereby replacing Hardin XII’s general partners with two corporations, HIA I, Inc. and HIA II, Inc. Hardin XII subsequently decided to withdraw from the Decatur Retirement project entirely by assigning its interest to Clairmont Properties, Inc. in December 1987. However, Hardin Construction Group continued as the project’s contractor.

In January 1988, Mutual Life Insurance Company of New York (“MONY”) loaned Decatur Retirement approximately $23 million to cover the construction of Clairmont Place and received a security deed to the property in return. During this same transaction, Covenant and Phillips assigned their interests in the Decatur Retirement project to Fincit.

On January 13, 1988, Fincit executed a release and covenant not to sue discharging Hardin XII and its “affiliates” from “any and all now existing claims, demands, actions, causes of action, suits, liabilities, indebtedness, duties, obligations and responsibilities, of any kind or nature, whether known or unknown, direct or indirect, joint or several, absolute or contingent, due or to become due.” As consideration, the release stated that Hardin XII had transferred its interest in the project to Clairmont Properties, Inc., which had made certain unspecified financial accommodations inuring to Fincit’s benefit. At the time this transaction occurred, Hardin XII purportedly already had divested its interest in the project. It appears that questions of fact may remain as to the effect of the release in light of these changes in parties.

At some disputed point either before or after the execution of the release, one of Hardin Construction Group’s executives learned from the architect who designed Clairmont Place that there were some discrepancies in the pre-sale list. After the architect introduced Michael Vollmer, a former Covenant employee with knowledge of these discrepancies, to a Hardin Construction Group executive, Vollmer began to investigate these matters for Hardin. Vollmer discovered that Covenant had misappropriated over $800,000 in escrow deposits in addition to the previously discovered escrow problems. He also learned that of the 162 units purchased, 42 had been sold at substantial discounts to investors who intended to rent out the units. Some of these investors did not intend to close and were guaranteed a certain rate of return on their deposit, a fact which transformed their investments into liabilities. It is undisputed that at least some of these transactions constituted illegal sales of unregistered securities. Fincit maintains that Hardin knew of and failed to reveal these illegal side agreements during the initial accounting in the summer of 1987.

A Hardin Construction Group executive arranged for a meeting with Fincit in February or March 1988 to discuss these discoveries. It is undisputed that within weeks after agreeing to the release, Fincit learned of the illegal pre-sales and the additional funds Covenant misappropriated.

The project failed and MONY foreclosed in June 1991. As a result, Fincit lost the entire amount of the loan.

In October 1992, Fincit’s president telephoned Vollmer and purportedly learned that Hardin XII knew of the illegal pre-sales before the release was executed. Fincit then initiated this action alleging that Hardin fraudulently misrepresented and concealed the fraudulent pre-sales until Fincit executed the release. The trial court granted Hardin’s motion for summary judgment, finding that the release was binding and the fraud claim was time-barred because Fincit learned of the alleged fraud in March 1988. Held:

1. Because Fincit raised genuine issues of material fact about when Hardin XII learned about the illegal pre-sales, summary judgment was inappropriate. Proof that Hardin XII acquired this knowledge before Fincit executed the release but misrepresented the number and legitimacy of the pre-sale contracts could render the release voidable and toll the statute of limitation, provided Fincit exercised due diligence. See Tower Financial Svcs. v. Jarrett, 199 Ga. App. 248, 250 (2) (404 SE2d 622) (1991); OCGA §§ 9-3-96; 13-4-60; 13-5-5.

The primary factual predicate for Fincit’s fraud allegation is Fincit’s president’s testimony that between August and September of 1987 two Hardin XII partners verified to Fincit that all the pre-sale contracts were real and in place, when, in fact, many of them were invalid or illegal.

Statements of Larry Rupe, one of Covenant’s principals, raise genuine issues of fact. Rupe attested that he participated in a meeting at Hardin XII’s offices in the summer or early fall of 1987 in which certain Hardin XII partners voiced concerns about the legality of the investor contracts and sought to limit Hardin XII’s liability. Although Rupe’s deposition testimony may be inconsistent with this statement, a jury must determine his credibility. In addition, both Benson and the project’s architect (in a deposition from another case) gave equivocal testimony on when Hardin XII learned of the illegal pre-sale contracts. Because the issues of fraud and due diligence raised here are disputed, a jury should decide them. Blanchard v. West, 115 Ga. App. 814, 815 (2) (156 SE2d 164) (1967).

Decided February 19,1997

Reconsideration denied March 6,1997

Appel, Chitwood & Harley, Martin D. Chitwood, Craig G. Harley, for appellant.

We reject Hardin’s contention that the statute of limitation began to run when it informed Fincit of pre-sale problems in the winter of 1988. At that point, the statute indisputably began to run on Covenant’s fraud, which related to the construction project itself. But Fincit’s claims against Covenant are separate and distinct from those alleged against Hardin. Questions of fact remain as to whether the limitation period on Hardin’s alleged fraud, which goes to Hardin’s alleged misrepresentation and concealment of the full extent of Covenant’s fraud in order to induce Fincit to rescind default, continue with the project, and execute the release, commenced at that time. OCGA § 9-3-96.

2. Nor does the statute of limitation bar Fincit’s claim for breach of the loan agreement. Instruments under seal, like the agreement on which Fincit’s loan claim is based, have a 20-year statute of limitation. OCGA § 9-3-23. If it is determined that the release is voidable, then the contract claim is viable.

3. Having decided to reverse on other grounds, we observe that the trial court effectively precluded Fincit from including Vollmer’s deposition in the record. The trial court granted Fincit’s motion to compel Vollmer’s deposition, finding him a “crucial witness.” Days later, however, without considering his testimony, the court granted Hardin’s motion for summary judgment. Because the record shows that Vollmer’s actions were integral and potentially dispositive to some of the facts at issue, it is not unreasonable to conclude that his cross-examination testimony would have been relevant. Compare Tuck v. Marriott Corp., 187 Ga. App. 567, 569 (2) (370 SE2d 795) (1988). The grant of summary judgment under these circumstances generally is not condoned. See id.

Judgment reversed and case remanded for further proceedings.

Andrews, C. J., and Smith, J., concur.

Kilpatrick & Cody, William, H. Boice, Craig E. Bertschi, Tim Carssow, for appellees.

       Hardin XII was formed solely for the purpose of investing in Decatur Retirement. Hardin Construction Group, Inc. (“Hardin Construction Group”) was to build the project.

       Covenant’s principals were convicted of embezzlement and securities violations in connection with a retirement community project in North Carolina.

       HIA I, Inc. consisted solely of appellees Hardin and Shell, while HIA II, Inc. included the remaining appellees.


author: Andrews, Chief Judge.

text:
    A96A2277.
    WILLIAMS v. WEST CENTRAL GEORGIA BANK et al.
    (483 SE2d 607)
   Andrews, Chief Judge.

We granted a discretionary appeal to the injured employee in this case to determine whether the administrative law judge (ALJ) and the appellate division of the board of workers’ compensation had authority under OCGA § 34-9-200 (a) to order the employer and its insurer to pay for a prescribed surgical procedure for the employee which was under investigation by the Food & Drug Administration (FDA) on a trial basis but had not received FDA approval. The ALJ and the appellate division ordered the employer, West Central Georgia Bank (WCGB), and its insurer to pay for the surgical procedure to be performed on the injured employee, Mary Williams. On appeal, the superior court found that the ALJ and the appellate division had exceeded their authority under OCGA § 34-9-200 (a) in ordering that the procedure be furnished to Williams.

Williams suffered a compensable back injury while working for WCGB. Williams’ licensed, authorized treating physician testified before the ALJ that Williams had undergone two unsuccessful back surgeries including one unsuccessful bone fusion attempting to correct her on-the-job injury. The physician testified that Williams needs additional bone fusion surgery to provide a cure for the injury and to provide relief from persistent pain. To accomplish this, the physician prescribed that Williams undergo a newly developed bone fusion surgery using a carbon fiber cage device to facilitate bone fusion, which he testified had a high success rate. The evidence showed that the prescribed procedure was classified as investigational, meaning that it was licensed to be performed under FDA guidelines by a limited number of physicians on a trial basis, but had not received FDA approval. Less than ten surgeons in the country were performing the surgery at the time, and Williams’ physician had arranged for the procedure to be performed on Williams by the nearest located surgeon. Williams’ physician testified that it was not a deviation from the standard of medical care to prescribe a procedure which had not been approved by the FDA. He testified that about 70 of his patients had undergone bone fusion procedures using the carbon fiber cage device with about a dozen of those having conditions very similar to Williams’. Although there was evidence that there were other more widely available surgical procedures which could be used to treat Williams’ injury, the treating physician testified that the bone fusion procedure using the carbon fiber cage would be the most effective treatment for Williams.

The ALJ found the testimony of Williams’ treating physician to be persuasive and ruled pursuant to OCGA § 34-9-200 (a) that the prescribed surgical procedure was reasonably required to effect a cure, give relief, or restore Williams to suitable employment. Accordingly, the ALJ ruled that WCGB and its insurer were required to pay for the procedure. The appellate division accepted the findings of fact of the ALJ as supported by the preponderance of the competent and credible evidence, adopted the ALJ’s conclusions of law as applied to the facts, and adopted the ALJ’s award. On appeal, the superior court reversed the appellate division on the basis that it had exceeded its authority under OCGA § 34-9-200 (a) by ordering WCGB and its insurer to furnish the procedure.

Under OCGA § 34-9-200 (a), “[t]he employer shall furnish the employee entitled to benefits under this chapter such medical, surgical, and hospital care and other treatment, items, and services which are prescribed by a licensed physician, including medical and surgical supplies . . . which in the judgment of the State Board of Workers’ Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.” The board has broad discretion under the standards set forth in OCGA § 34-9-200 (a) to determine what medical treatment the employer and insurer will be required to furnish to an injured employee. Holcombe v. Brown Transport Corp., 253 Ga. 719, 721 (324 SE2d 446) (1985); City of Atlanta v. Walker, 169 Ga. App. 34, 35 (311 SE2d 479) (1983); see City of Atlanta v. Padgett, 68 Ga. App. 96, 109 (22 SE2d 197) (1942); U. S. Fidelity &c. Co. v. OByrne, 61 Ga. App. 806, 808 (7 SE2d 689) (1940). WCGB and its insurer contend that, because the surgical procedure at issue was at an investigational stage under FDA guidelines, had not been approved by the FDA, and was not widely employed in the medical profession, it cannot be considered “reasonably required” or “likely to effect a cure,” and the board had no discretion under OCGA § 34-9-200 (a) to order them to furnish the procedure.

We disagree and conclude the superior court erred by ruling the appellate division had no authority under OCGA § 34-9-200 (a) to order WCGB and its insurer to furnish the procedure. There is nothing in OCGA § 34-9-200 (a) which limits the exercise of the board’s discretion to FDA-approved medical treatment. There was evidence in the record before the ALJ showing that Williams’ licensed", authorized treating physician had prescribed the surgical procedure at issue and referred Williams to a surgeon to perform the procedure. Under OCGA § 34-9-201 (b) (1) and (2), a licensed, authorized treating physician “may arrange for any consultation, referral, and extraordinary or other specialized medical services as the nature of the injury shall require. . . .” There was also evidence supporting the ALJ’s determination pursuant to the standards of OCGA § 34-9-200 (a) that the procedure was reasonably required and likely to effect a cure, give relief, or restore Williams to suitable employment. The appellate division found that the ALJ’s findings of fact were supported by a preponderance of competent and credible evidence on the record. OCGA § 34-9-103 (a). Since there was evidence to support the appellate division’s determination, neither the superior court nor this Court is authorized to reweigh the evidence. Metro Interiors v. Cox, 218 Ga. App. 396, 398 (461 SE2d 570) (1995).

Decided February 19,1997

Reconsideration denied March 6,1997

Stephen A. Friedman, for appellant.

Berlon & Timmel, Peggy R. Goodnight, for appellees.

Judgment reversed.

Pope, P. J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A0435.
    CUMMINGS v. THE STATE.
    (483 SE2d 605)
   Johnson, Judge.

Yasene Cummings was charged with speeding, failing to stop for a police vehicle, and driving under the influence of alcohol. While represented by an attorney, Cummings pleaded guilty to all three charges. The trial court accepted Cummings’ pleas and ordered him to serve part of his sentence in jail. Cummings subsequently filed a motion to withdraw the guilty pleas, complaining that his trial counsel provided ineffective assistance by telling him he would not have to serve time in jail if he signed the plea statements, failing to adequately confer with him about the pleas, and not informing him of his constitutional rights or the consequences of pleading guilty. Cummings claims that, therefore, the guilty pleas were not entered knowingly, voluntarily, or intelligently. After a hearing, the trial court found that Cummings’ pleas were knowing, voluntary, and intelligent, and that trial counsel’s assistance was not ineffective. Cummings appeals.

“Before a guilty plea is accepted by a trial court, the court must determine that the' plea is voluntarily made and that the defendant intelligently and understandingly waives his constitutional rights with an understanding of the nature of the charges against him and the consequences of the plea. However, where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.” (Citations and punctuation omitted.) McCants v. State, 222 Ga. App. 75, 77 (1) (473 SE2d 514) (1996). In challenging the effectiveness of plea counsel, a defendant must show that counsel’s performance fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty but would have insisted on going to trial. See Hall, supra.

The record does not contain a transcript of the hearing in which the pleas were entered. It does, however, contain written plea statements signed at that hearing and a transcript of the hearing on the motion to withdraw the pleas.

In plea statements signed by Cummings in the court’s presence, Cummings agrees that he: understands he may plead not guilty and, if he does, he is guaranteed certain rights (e.g., to a speedy and public jury trial, to subpoena and cross-examine witnesses); understands by pleading guilty he gives up those rights and may be sentenced as if he were convicted after a trial; understands the punishment for each of the offenses may include imprisonment; has been counseled and advised by his lawyer and is satisfied with the lawyer’s advice and guidance; has not been promised a lesser sentence or probation for pleading guilty; understands the judge is not bound by any recommendation and may impose a greater sentence than that recommended; and offers his plea voluntarily and with full knowledge of all the matters in the plea statement(s). The trial court signed these plea statements, specifically indicating thereon that it was satisfied that Cummings entered the pleas knowingly, freely, and voluntarily and understood all of his rights and the consequences of his pleas. In one of the plea statements, the trial court states that it personally read to Cummings the rights listed above.

Similar evidence was adduced at the hearing on the motion to withdraw the pleas. There, Cummings testified that he graduated from high school and technical school. He admitted he met with counsel three times before entering the pleas and had an opportunity to confer with counsel on the day the pleas were entered. Cummings added that he neither read nor requested more time to read the plea statements before signing them. Although Cummings testified that his attorney told him he would not get any jail time if he signed the statements, Cummings admitted having answered “no” when the trial court asked him at the plea hearing whether anyone made any promises to him in exchange for his pleas. He testified that he understood the court’s statements to him at the plea hearing regarding his right to plead not guilty and to be tried by a jury, and that he was waiving his rights by pleading guilty. Moreover, Cummings remembered telling the trial court in the plea hearing he was satisfied with his attorney’s guidance. He also recalled the court informing him of the maximum punishment it could impose for each offense and how the sentence imposed could be the same as if he went to trial and was found guilty. Cummings did not state that he would have gone to trial had it not been for counsel’s ineffectiveness. Cummings’ trial counsel did not testify at this hearing.

Decided February 18,1997

Reconsideration denied March 6,1997

Wolfe & Steel, Kristine E. Waddy, for appellant.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.

In light of Cummings’ oral and written statements to the court indicating what he knew and understood about pleading guilty to these charges, the number of opportunities he had to confer with counsel before entering the pleas, and the absence of any indication that, had he received effective assistance, he would not have pleaded guilty, we are not convinced either that Cummings’ attorney’s performance fell below an objective standard of reasonableness or that there is a reasonable probability that, but for counsel’s errors, Cummings would have insisted on going to trial rather than pleading guilty. “A trial court’s finding that a defendant has been afforded effective assistance of [plea] counsel must be upheld unless that finding is clearly erroneous.” (Citations and punctuation omitted.) Stevens v. State, 202 Ga. App. 473, 474 (4) (414 SE2d 702) (1992). We cannot say that the trial court’s finding that Cummings’ counsel was not ineffective is clearly erroneous. Moreover, the evidence supports the trial court’s finding that Cummings’ guilty pleas were knowingly, voluntarily, and intelligently entered. The trial court did not abuse its discretion in denying Cummings’ motion to withdraw his pleas. See Jefferson v. State, 216 Ga. App. 442, 443-444 (3) (454 SE2d 632) (1995); Neal v. State, 216 Ga. App. 223, 224 (453 SE2d 807) (1995).

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.

       See Hall v. State, 210 Ga. App. 792, 793 (1) (437 SE2d 634) (1993), holding that a defendant may raise a claim of ineffective assistance of counsel in challenging a guilty plea.


author: Ruffin, Judge.

text:
    A96A2198.
    WALKER v. BORD.
    (483 SE2d 675)
   Ruffin, Judge.

Henry Walker sued Eric Bord for injuries he allegedly sustained in an automobile accident which occurred on September 15, 1993. Walker filed his complaint on September 8,1995, one week before the relevant statute of limitation expired. See OCGA § 9-3-33. Bord was personally served with the complaint on December 13, 1995, and thereafter answered and moved the court to dismiss the complaint on the ground that he was not served within the applicable statute of limitation. The trial court found that Walker “failed to exercise due diligence to serve [Bord] in a timely manner as required by law” and granted the motion to dismiss. Walker appeals the trial court’s order, and we affirm.

“The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” (Citations and punctuation omitted.) Sykes v. Springer, 220 Ga. App. 388, 390 (1) (469 SE2d 472) (1996).

The record in this case shows no abuse. Specifically, the record shows that in the fall of 1994, approximately one year before Walker filed this action, Bord moved from Atlanta, Georgia to Maryland to open a business. Bord stated in an affidavit that when he discontinued his telephone service in Atlanta, he instructed the telephone company to “have a tape-recorded message respond to any calls to [his] old number and inform the caller of [his] new telephone number.” Bord also left his forwarding address with the United States Post Office in Atlanta and “routinely received mail in Maryland that had been forwarded from [his] former Atlanta address.”

When Walker filed his complaint, he attempted to serve Bord at his former Atlanta address provided on the Motor Vehicle Accident Report. On September 18, 1995, the marshal returned the entry of service to Walker’s counsel showing that service was not perfected because Bord had moved. On September 28, 1995, Walker’s counsel sent Bord’s insurance company, USAA Property & Casualty Insurance (“USAA”), a document entitled “REQUEST FOR PRODUCTION OF INFORMATION TO A NON-PARTY.” The document requested that USAA provide Walker with information concerning Bord’s address. On October 26, 1995, prior to receiving a response from USAA, Walker requested that Bord’s counsel accept service on behalf of Bord. Counsel denied the request because he had no such authority. On October 31, 1995, USAA informed Walker in a letter that it would not comply with his request for Bord’s address information. A local marshal served Bord at his Maryland residence 43 days later.

“Where an action is filed within the applicable limitation period but is not served upon the defendant within five days thereafter or within the limitation period, the plaintiff must establish that he acted in a reasonable and diligent manner in attempting to insure that proper service was effected as quickly as possible; and if he is guilty of laches in this regard, service will not relate back to the time of filing of the complaint for the purpose of tolling the statute of limitation. The plaintiff has the burden of showing that due diligence was exercised.” (Citations and punctuation omitted.) Starr v. Wimbush, 201 Ga. App. 280, 281 (2) (410 SE2d 776) (1991).

We find several problems with Walker’s efforts in this case. First, we do not agree with Walker that he “had no reason to doubt the accuracy” of the information contained in the Motor Vehicle Accident Report. Walker had the burden to ascertain Bord’s residence, and the information upon which he relied was almost two years old. See Devoe v. Callis, 212 Ga. App. 618, 619 (1) (442 SE2d 765) (1994). The expiration of the statute of limitation was looming. Under the circumstances, diligence would seem to dictate that Walker take at least some action to ensure that the information was not stale.

Second, when Walker realized there was “a problem with service, he was obligated to exercise, not due diligence, but the greatest possible diligence to ensure proper and timely service.” (Citations and punctuation omitted.) Sykes, supra at 390 (2). Yet Walker did nothing for ten days following his failed attempt at serving Bord. Moreover, there is no evidence accounting for the 43 days between the time USAA informed Walker that it would not comply with his request for address information and the time Bord was served. Pretermitting the question of whether a non-party such as USAA was obligated to provide the address information (see Devoe, supra at 620-621), we find these two periods of inaction sufficient to support the trial court’s finding that Walker failed to exercise due diligence in serving Bord.

Furthermore, although Walker’s counsel stated in an affidavit that he “contacted several sources to obtain [Bord’s] current address and from the date that [he] was notified that [Bord] had moved [he] continuously made effort to locate and serve [Bord,]” he failed to identify these sources or specify what these other efforts were. Because the burden was on Walker to show he exercised the required level of diligence, he could not simply state in a conclusory fashion that he continuously attempted to locate Bord. See id. at 620. Of similar inconsequence are Walker’s numerous assertions in his appellate brief concerning additional action he took to locate and serve Bord. The assertions are not supported by the record, and it is well established that “unsupported factual assertions in briefs cannot be considered in the appellate process. [Cit.]” Johnson v. Bruno’s, Inc., 219 Ga. App. 164 (2) (464 SE2d 259) (1995).

Decided March 6,1997.

Burdine & Brown, Thomas F. Brown II, William H. Clerke TV, for appellant.

Bovis, Kyle & Burch, Timothy A. Hickey, Jr., for appellee.

Finally, we reject Walker’s argument that Bord was not harmed by the delay in service because Bord’s counsel knew of the impending suit. “Such notice is irrelevant. Where there has been no service of a suit, or waiver thereof, the necessity of service is not dispensed with by the mere fact that the defendant may in some way learn of the filing of the suit. In this case, there was no timely service and there was no waiver thereof.” (Citations and punctuation omitted.) Sykes, supra at 390 (3).

Judgment affirmed.

McMurray, P. J, and Johnson, J., concur.

       The document stated it was a request “pursuant to OCGA § 9-11-34 to produce for inspection and copying at [counsel’s office] the following described information: 1. State the last known address of Eric S. Bord[.] 2. State each and every address that you have on record for Eric S. Bord and the dates of occupancy.” The document requested similar information concerning Bord’s family members.


text:
    A96A2518.
    MORELAND v. TRAFFIC MASTERS, INC.
    (483 SE2d 368)
   Ruffin, Judge.

Gene Moreland sued Traffic Masters, Inc. (“Traffic Masters”) for commissions allegedly due under an oral employment contract. Traffic Masters denied liability and subsequently moved for summary judgment. The trial court granted Traffic Masters’ motion, finding that “[u]nder Georgia law, the underlying employment contract was terminable at will; therefore, the promises upon which [Moreland] relied are unenforceable.” Moreland appeals, and for reasons which follow, we reverse.

■ “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In this case, the record shows that Traffic Masters, which is in the freight forwarding business, hired Moreland as a commissioned salesman in February 1992. In an affidavit, Moreland summarized his employment agreement with Traffic Masters as follows: “[a]s a commission sales person with [Traffic Masters], [I] was guaranteed compensation by Jeffery Towe, Vice-President of [Traffic Masters] on the basis of fifty (50%) percent of the profit generated by accounts [I] was instrumental in obtaining freight business for [Traffic Masters].” In responses to interrogatories, Traffic Masters similarly described Moreland’s role as follows: “[h]is job was to call any and all potential accounts, obtain the information, and work them into a going account on a contractual basis.” Towe acknowledged in an affidavit that Traffic Masters had an oral commission agreement with Moreland. Towe stated that when Moreland obtained a new account, he would confirm the rate schedule with Towe or Traffic Masters’ President and they “would then agree on a percentage with the net income of the account as a commission to be paid to [Moreland] so long as he serviced the account, and the account was handled through [Traffic Masters].”

At the heart of this dispute is whether Moreland was entitled to commissions for generating business from McDonnell-Douglas. We note that it is undisputed that McDonnell-Douglas used Traffic Masters for some of its freight forwarding business. Although Moreland had a stroke and is no longer employed by Traffic Masters, he contends that he was not paid commissions for work performed on the McDonnell-Douglas account prior to his leaving. Traffic Masters contends that the verbal agreement was terminable at will and that, in any event, there is no evidence Moreland was entitled to commissions for obtaining and servicing the account.

Although Traffic Masters and the trial court are correct that Moreland’s oral employment contract was terminable at will, “an employee may sue on an oral contract for employment terminable at will Tor the amount of compensation due him, based upon services actually performed by him up to the time of his discharge. . . .’ [Cit.]” E. D. Lacey Mills, Inc. v. Keith, 183 Ga. App. 357, 359 (2) (359 SE2d 148) (1987).

We find that there are a number of unresolved conflicts in the evidence concerning Moreland’s performance that preclude summary judgment for Traffic Masters in this case. Traffic Masters stated in responses to interrogatories that “[Moreland] was not required to call on and service any accounts[ ]” and that he “never” performed the work necessary to obtain new accounts. Traffic Masters admitted, however, that “[Moreland] did . . . call on the following house accounts from time to time at the request of [Traffic Masters]: McDonnell-Douglas. . . .” Traffic Masters further stated that after McDonnell-Douglas began doing business with Traffic Masters, Moreland “called on McDonnell-Douglas once or twice a month up to the time that [he] had a stroke in the first part of 1995.” In responses to interrogatories, Moreland stated that he “called on John Hinkley at McDonnell-Douglas at least twice per month to solicit their business and ultimately began to get the business from McDonnell-Douglas. . . . No one else at Traffic Masters, Inc. contacted McDonnell-Douglas until after I had already secured this business for Traffic Masters, Inc.”

It is unclear from this evidence whether Moreland merely serviced the McDonnell-Douglas accounts or whether he also generated new business. And, although Traffic Masters asserted that Moreland “never” performed his job of calling on potential accounts to obtain information, Traffic Masters stated in response to interrogatories that “[i]n attempting to obtain the McDonnell-Douglas account for [Traffic Masters], [Moreland] made the first call to solicit information that he could obtain so that [Traffic Masters] and he could make efforts to actually close the account and obtain a contract with the account.”

Other evidence in the record also shows that Moreland might have earned commissions by securing McDonnell-Douglas’ business. Moreland stated in an affidavit that he “was instrumental in obtaining and retaining the account of McDonnell-Douglas for [Traffic Masters].” John Hinkley, a McDonnell-Douglas representative, also testified in his deposition that based on Moreland’s initial representations, McDonnell-Douglas started using Traffic Masters for some of its freight forwarding business and that Moreland had a “role” in the business between the two companies. This evidence, and the reasonable inferences from it, create a factual issue concerning whether Moreland earned any commissions by calling on McDonnell-Douglas as a potential account, gathering information, and obtaining McDonnell-Douglas contracts with Traffic Masters. Accordingly, the trial court erred in granting Traffic Masters’ motion for summary judgment on Moreland’s claim for commissions allegedly earned. See Keith, supra.

Decided March 6,1997.

Parkerson, Shelfer & Groff, David B. Groff, for appellant.

Scott Walters, Jr., for appellee.

Finally, Traffic Masters points to evidence showing that More-land received some compensation during his employment and argues that this compensation constituted an accord and satisfaction of Moreland’s claim for commissions on the McDonnell-Douglas account. Accord and satisfaction, however, “is an affirmative defense which must be set forth in pleading to a preceding pleading. Where not pleaded, it is waived.” (Citations and punctuation omitted.) George v. Roberts, 220 Ga. App. 583, 584 (469 SE2d 249) (1996). Because Traffic Masters failed to plead the defense in this case, it was waived. See id.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.


text:
    A97A0256.
    HALLMAN v. EMORY UNIVERSITY et al.
    (483 SE2d 362)
   Eldridge, Judge.

Appellant, Dr. Linda Hallman, filed suit in June 1994 against appellees, Emory University, the Emory Clinic, and various University administrators, in an employment dispute. After a lengthy two-day preliminary injunction hearing, an interlocutory injunction against the appellees was granted to appellant on August 5, 1994. After the grant of the interlocutory injunction to appellant, the appellees were very anxious to take appellant’s deposition; appellant repeatedly postponed scheduled depositions, cancelled at the last minute, or failed to appear altogether. In August 1995, appellees filed a motion to dismiss or, alternatively, to compel and impose sanctions. The trial court granted the motion to dismiss with prejudice and awarded $1,250 in attorney fees on August 23, 1995. Upon motion for reconsideration, the trial court modified its order of dismissal to make it a dismissal without prejudice on September 25, 1995. On October 9, 1995, appellees made a motion for an award of attorney fees under OCGA §§ 9-15-14 (a), (b), and 51-7-81 for abusive litigation, supported only by the affidavit of one of the three counsel involved and without even the hourly billing statements. The trial court on March 9, 1996, entered an award of attorney fees under all statutes without conducting an evidentiary hearing either as to the merits of the motion or as to the hours, reasonableness, amount, necessity or allocation of attorney fees, and specifically found that Counts 2 and 3 of the complaint were filed with malice, authorizing the award of attorney fees under OCGA §'51-7-81, which were awarded based only upon the defense counsel’s affidavit and without hearing evidence or allowing cross-examination by appellant’s counsel of appellees’ counsel regarding the reasonableness and necessity of the $44,240.13 awarded. The trial court ignored some 221 pages of transcript of the interlocutory injunction hearing, as well as the interlocutory injunction order, as such related to Counts 2 and 3 in finding that there was no justiciable issue under either OCGA § 9-15-14 (a) or § 51-7-80 et seq. Appellant challenges on direct appeal the award of attorney fees. However, appellees have moved to dismiss the appeal on jurisdictional grounds. We disagree.

This Court, in Rolleston v. Huie, 198 Ga. App. 49, 51-52 (400 SE2d 349) (1990), held that there is no direct appeal from an award of attorney fees under OCGA § 9-15-14 unless it appears that such award was appealed as part of a judgment that is directly appealable. See also Standi v. Gwinnett County, 259 Ga. 507, 508 (384 SE2d 666) (1989); Haggard v. Bd. of Regents &c. ofGa., 257 Ga. 524, 526 (4) (a) (360 SE2d 566) (1987).

In Ga. L. 1989, p. 408, § 2, the General Assembly created a new cause of action for abusive litigation and codified it as OCGA § 51-7-80 et seq., which became effective on July 1, 1989, and which provided for procedures that were part of the elements of the action. OCGA § 51-7-80 et seq., as a new statutory cause of action, replaced several existing common law actions: malicious use of process; malicious abuse of process; and a claim under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). Since OCGA § 51-7-80 et seq. is in derogation of common law, then it must be strictly construed. Kirsch v. Meredith, 211 Ga. App. 823, 825 (440 SE2d 702) (1994). Unlike OCGA § 9-15-14, which is a court-imposed sanction for misconduct in litigation, OCGA § 51-7-80 et seq. is an independent cause of action based upon the successful termination of the action upon which it is based and is not procedurally ancillary and post-judgment, as is OCGA § 9-15-14, except when only attorney fees are sought under OCGA § 51-7-83 (b). Hutchison v. Divorce & Custody Law Center &c., 207 Ga. App. 421, 423 (427 SE2d 784) (1993). An action for abusive litigation must be brought as a separate and distinct action where damages are sought; however, when only attorney fees in the original abusive litigation are sought, OCGA § 51-7-83 (b) provides that “the procedures provided in Code Section 9-15-14 shall be utilized.” However, such language does not change an action under OCGA § 51-7-80 et seq. to damages imposed as a sanction under OCGA § 9-15-14, but merely directs which procedures shall be followed under such circumstances. OCGA § 51-7-83 (b) provides a cause of action and directs the procedure by which damages are to be sought in order to simplify the action. See generally Stocks v. Glover, 220 Ga. App. 557, 559 (2) (469 SE2d 677) (1996); McKin v. Gilbert, 208 Ga. App. 788, 791 (2) (432 SE2d 233) (1993); Talbert v. Allstate Ins. Co., 200 Ga. App. 312 (408 SE2d 125) (1991).

Williams v. Clark-Atlanta Univ., 200 Ga. App. 51, 52 (406 SE2d 559) (1991), is distinguishable on the law and facts in that the action arose prior to July 1, 1989, the effective date of OCGA § 51-7-80 et seq., so that this statute could not be applied retroactively, and the action was dismissed on the merits and attorney fees were imposed as a judicial sanction under OCGA § 9-15-14. In the case sub judice, the underlying action was dismissed without prejudice, came within OCGA §§ 51-7-80 et seq. and 9-15-14, and attorney fees were imposed both as a judicial sanction and as damages under the abusive litigation action as a final judgment. Under OCGA § 51-7-84 (b), a “final termination of the proceeding” means that the case has been finally concluded and has nothing ancillary pending, except when the party may follow the procedures of OCGA § 9-15-14 in bringing a claim for attorney fees from the abusive litigation case within 45 days as an ancillary matter under OCGA § 51-7-83 (b). Since OCGA § 51-7-83 (b) could not be applied retroactively in Williams v. Clark-Atlanta Univ., supra, then anything stated by this Court regarding the discretionary appeal procedure for attorney fees awarded under such Code section was obiter dicta, because such language was not necessary to the decision of the case.

While the same procedures must be followed under OCGA § 51-7-83 (b) as employed under OCGA § 9-15-14, OCGA § 51-7-80 et seq. does not come within the express language of OCGA § 5-6-35 (a), which lists cases requiring application for appeal; subsection (a) (10) requires an application for appeals of an award of attorney fees only under OCGA § 9-15-14 and does not require OCGA § 51-7-83 (b) to come under such discretionary appeal procedure, even though it involves the same trial procedure. The General Assembly, by enacting Ga. L. 1988, p. 1357, § 1, created OCGA § 5-6-35 (a) (1) through (10), but the General Assembly neither amended the statute in 1989 when OCGA § 51-7-83 (b) was passed, nor did it choose to include OCGA § 51-7-80 et seq. in Ga. L. 1991, p. 412, § 1, or Ga. L. 1994, p. 347, § 2, when OCGA § 5-6-35 was further amended. Such omission of OCGA § 51-7-80 et seq. from discretionary appeals clearly expresses the legislative intent that this substantive new cause of action should have a right of direct appeal whenever a final judgment has been entered. An award under OCGA § 51-7-83 (b) of attorney fees is an award of damages without a jury trial on the merits and constitutes a final judgment that is directly appealable.

To award attorney fees under OCGA § 9-15-14 (a) requires the same findings as under OCGA § 51-7-80 et seq. so that there exists an appeal which otherwise would be discretionary under OCGA § 9-15-14, but “may be reviewed on direct appeal, when it is appealed as part of a judgment directly appealable.” Haggard v. Bd. of Regents &c. of Ga., supra at 526 (4) (a); Rolleston v. Huie, supra at 52. Therefore, the award of attorney fees under both OCGA § 9-15-14 (a) and (b) is reviewable on direct appeal along with the judgment under OCGA § 51-7-83, and this Court has jurisdiction.

The motion to dismiss is hereby denied.

1. Since appellant’s right to a direct appeal rests upon an appeal from a judgment under OCGA § 51-7-80 et seq., then the applicable enumeration of error will be dealt with first. The trial court is alleged to have erred in the granting of attorney fees under OCGA § 51-7-80 et seq., and we agree.

The threshold issue is whether or not an action under OCGA § 51-7-80 et seq. was ripe at the time the trial court entered a judgment based upon such statute. Had the trial court not voided the order dismissing the action with prejudice, such order would have acted as an adjudication on the merits, a “final termination” of the case. However, the trial court vacated such order and substituted for it a dismissal without prejudice, which was not a “final termination” of the case. OCGA § 9-11-41 (b). Since OCGA § 51-7-80 et seq. is a statutory cause of action in derogation of common law, then it must be strictly construed against the party seeking to assert the statute. See Heard v. Neighbor Newspapers, 259 Ga. 458, 459 (5) (383 SE2d 553) (1989). “The abusive litigation tort set forth in OCGA § 51-7-80 et seq. is in derogation of common law, and must be strictly limited to the meaning of the language used, and not extended beyond the plain and explicit statutory terms. Paino v. Connell, 207 Ga. App. 553 (428 SE2d 446) (1993).” Kirsch v. Meredith, supra at 825; see also Talbert v. Allstate Ins. Co., supra at 314.

As an essential condition precedent to having a cause of action under OCGA § 51-7-80 et seq., there must be a “final termination of the proceeding,” and not a dismissal of the action without prejudice, which action can be refiled timely, because then an abusive litigation action would be premature. Stocks v. Glover, supra at 559; see also McKin v. Gilbert, supra at 791. Final determination is by judgment or dismissal on the merits. Betallic, Inc. v. Deavours, 263 Ga. 796 (439 SE2d 643) (1994); McCullough v. McCullough, 263 Ga. 794 (439 SE2d 486) (1994); Kirsch v. Meredith, supra at 824; Talbert v. Allstate Ins. Co., supra. Such requirement of final termination applies equally when only attorney fees and expenses of litigation are sought under OCGA § 51-7-83 (b) and follows the procedure set forth in OCGA § 9-15-14. Hutchison v. Divorce & Custody Law Center &c., supra at 423. Under OCGA § 9-15-14 (f), the trial court’s award shall be treated as a final judgment; however, the condition precedent for an award under OCGA § 51-7-80 et seq. had not been satisfied by having a final termination of the action. The trial court erred as a matter of law in entering such award when the action had only been dismissed without prejudice.

2. Appellant’s next enumeration of error is that the trial court erred in granting attorney fees to appellees under OCGA § 9-15-14 (a) by finding that there existed a complete absence of any justiciable issue of law or fact, because ample evidence showing a genuine controversy was presented to the court to support the appellant’s complaint during a two-day hearing for injunctive relief before the court on August 2 and 3, 1994.

In Porter v. Felker, 261 Ga. 421, 422 (3) (405 SE2d 31) (1991), the Supreme Court of Georgia held “a trial court’s award [under OCGA § 9-15-14 (a)] to a party whose motion for summary judgment was denied must be vacated except in unusual cases where the trial judge could not, at the summary judgment stage, foresee facts authorizing the grant of attorney fees.” Accord Dills v. Bohannon, 208 Ga. App. 531, 533 (1) (431 SE2d 123) (1993); Hamm v. Willis, 201 Ga. App. 723 (411 SE2d 771) (1991); Felker v. Fenlason, 201 Ga. App. 207, 209 (5) (410 SE2d 326) (1991); Seckinger v. Holtzendorf, 200 Ga. App. 604, 605-606 (409 SE2d 76) (1991).

The grant of an interlocutory injunction by the trial court was a determination that there was substantial likelihood of success on the merits upon the trial of the case; unappealed it became the law of the case; after two days of evidence and an order granting injunctive relief, there was a determination of a justiciable issue by the trial court. Such judicial determination is substantially the equivalent to the denial of a motion for summary judgment, so that OCGA § 9-15-14 (a) does not apply under Porter v. Felker, supra.

Furthermore, the findings of fact by the trial court lack any evidence to support a finding under OCGA § 9-15-14 (a). Under the “any evidence” rule, the trial court erred in granting attorney fees and expenses under OCGA § 9-15-14 (a). Haggard v. Bd. of Regents &c. of Ga., supra at 527.

3. The appellant’s next enumeration of error is that the trial court erred in granting attorney fees to the appellees under OCGA § 9-15-14 (b) upon a finding that the appellant unnecessarily expanded the proceedings by improper conduct, because there existed ample evidence to show that any delays caused in the prosecution of the appellant’s case were not the result of improper conduct by appellant or her counsel.

“OCGA § 9-15-14 (b) is discretionary and the standard of review is the abuse of discretion.” Haggard v. Bd. of Regents &c. of Ga., supra at 527 (4) (c); Gibson v. Southern Gen. Ins. Co., 199 Ga. App. 776, 778 (3) (406 SE2d 121) (1991).

While appellant has submitted conflicting evidence, the trial court is to determine weight and credibility of the evidence. The alleged misconduct occurred after the grant of the interlocutory injunction so such order provides no defense.

The trial court did not abuse its discretion in imposing attorney fees in some amount within OCGA § 9-15-14 (b).

4. The appellant’s last enumeration of error is that the trial court erred in granting attorney fees because the evidence was insufficient to enable the trial court to assess the attorney fee award.

The General Assembly mandated, under OCGA § 9-15-14 (f), that “[a]n award of reasonable and necessary attorney’s fees or expenses of litigation [as a sanction] . . . shall be determined by the court.” OCGA § 9-15-14 (d) limits such award so that the award “shall not exceed amounts which are reasonable and necessary for defending . . . the rights of a party.” This imposes an affirmative duty upon the trial court to hear evidence and allow the cross-examination of counsel as to the necessity, reasonableness, and amount of work done by counsel by the opposite party prior to the imposition of an award related to the basis for the sanction. In the case sub judice, the trial court failed to hold a hearing and allow movant to be cross-examined regarding such fees. Appellees’ counsel merely submitted an affidavit filled with hearsay and conclusions and devoid of facts upon which the trial court must exercise its sound discretion in making an award. Counsel did not state the total hours worked by each lawyer on each issue which authorized the imposition of sanctions; provide the hourly billing rate for each counsel; testify that the rates were the normal rate; specify what work was performed; or explain why, in a case where there had been no discovery done and only a two-day hearing over approximately one year’s time that the total fees exceeded $42,045 and expenses of $2,195.13, particularly when the initial sanction for discovery abuse requested had been an award of only $1,250. Under the circumstances, ordering an award without conducting a hearing and without important evidence, such as the billing records, constituted an abuse of discretion by the trial judge and lacked evidence upon which to exercise the sound discretion of the court in imposing a reasonable sanction.

“The record does not show [that the non-movant] was afforded such opportunity [of a hearing on the award of attorney fees where the movant’s counsel could be cross-examined], and the judgment must be reversed and remanded for an evidentiary hearing to determine an amount for reasonable and necessary attorney fees.” Cohen v. Feldman, 219 Ga. App. 90, 92 (2) (464 SE2d 237) (1995). “ ‘[A] party opposing a claim for attorney fees has a basic right to confront and challenge testimony as to the value and need for legal services. (Cit.)’ Mitcham v. Blalock, 214 Ga. App. 29, 32-33 (2) (447 SE2d 83) (1994).” Id. at 92 (2). “ ‘ “An award of attorney fees is unauthorized if [the movant] failed to prove the actual costs of the attorney and the reasonableness of those costs. (Cit.)” Fiat Auto U. S. A. v. Hollums, 185 Ga. App. 113, 116 (5) (363 SE2d 312) (1987).’ Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) [(1993)].” Mitcham v. Blalock, supra at 31 (2). The court held that an affidavit of an attorney with billing statements attached which told what two lawyers and the paralegal had done was hearsay as to what anyone did other than the affiant. Id. at 31. “ A determination of the amount of an award of attorney fees cannot be based upon guesswork. [Cit.]’ [Cit.] Such an award must be based on competent evidence, not inadmissible hearsay. [Cits.]” Mitcham v. Blalock, supra at 32. “Nor did the process of allowing [movant] to submit edited time [sheet] records and affidavits adequately afford [the non-movant’s] attorney the opportunity to cross-examine [movant’s] attorneys either on the issues of reasonableness and value or on the allocation of time and expenses among the various claims. A determination of the amount of an award of attorney fees cannot be based on guesswork.” Southern Cellular Telecom v. Banks, supra at 402.

Decided March 6,1997.

David J. Farnham, for appellant.

Long, Weinberg, Ansley & Wheeler, J. M. Hudgins TV, Paul L. Weisbecker, for appellees.

The case is remanded for an evidentiary hearing to establish the amount of attorney fees solely related to OCGA § 9-15-14 (b), as limited by OCGA § 9-15-14 (d), for the delay in discovery that appellees are entitled to recover and any other appropriate sanctions under OCGA § 9-15-14 (b) which can be established by competent evidence.

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

Birdsong, P. J, concurs. Ruffin, J., concurs in judgment only.


text:
    A97A0263.
    In the Interest of R. L. W. et al., children.
    (483 SE2d 361)
   Johnson, Judge.

R. L. W., E. E. R, and N. D. P. were adjudicated delinquent after the juvenile court found they committed acts which, had they been adults, would have supported convictions for criminal trespass to property. On appeal, they challenge the weight and sufficiency of the evidence supporting the trial court’s ruling.

1. Defendants claim the adjudications are strongly against the weight of the evidence. However, this Court determines only the sufficiency of evidence, not its weight. Ellis v. State, 211 Ga. App. 605, 612 (11) (440 SE2d 235) (1994).

2. In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juveniles committed the acts charged. In the Interest of J T M., 200 Ga. App. 636, 637 (409 SE2d 256) (1991); see generally Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

These juveniles were accused of “keying” a truck belonging to the manager of a fast food restaurant. The manager testified that the juveniles drove up to the restaurant’s drive-thru window, ordered food, and made certain comments to the cashier. The cashier asked the driver if he was old enough to drive. After answering affirmatively, the juveniles drove away. The manager went out to his red pickup truck to retrieve some paperwork. As he walked back to the restaurant, the manager saw the juveniles pull back into the parking lot and park three or four spaces from his truck. Concerned about the youths’ actions, the manager and a cashier watched as all the juveniles congregated beside the truck. A few moments later, one of the youths walked to the drive-thru window, requested salt, and asked to whom the truck belonged. When the manager said the truck was his, the juvenile said, “sharp truck” and, along with the others, began laughing.

After the juveniles left, the manager went to his truck and discovered a 13-inch scratch and other small scratches on the passenger side. The manager testified that these scratches were not there when he arrived at work. He had looked at the side of the truck but had not seen these scratches when he went to the truck to retrieve paperwork, and he asserted he would have noticed a 13-inch white scratch on his red paint.

R. L. W. testified that he had asked the cashier for her phone number, and she asked if they were old enough to be driving, after which the manager warned the youths that he had their tag number. Each of the defendants testified they left the drive-thru window and parked in the space next to the manager’s truck because one or more had to use the rest room. Each defendant explained thát after R. L. W. opened his door and accidentally bumped the passenger side of the manager’s truck, they inspected the truck and found no damage. They then moved their car four spaces away.

The evidence supports the juvenile court’s finding, beyond a reasonable doubt, that the defendants committed acts which would make each a party to the crime of criminal trespass. See generally OCGA § 16-7-21 (a). The factfinder could determine that the truck was not previously damaged and that the juveniles perceived the manager’s comment that he had their tag number as a threat, giving the juveniles a motive to damage his truck. They had the opportunity to do so, as they were all gathered around the truck. The juveniles’ subsequent comments and actions provide further evidence of their guilt. The court was entitled to disbelieve the youths’ explanation, as the manager testified there were no empty spaces next to his truck in which the juveniles could have parked. “ ‘[EJven though the evidence was circumstantial here, it was sufficient to exclude every reasonable hypothesis except that of guilt. (Cit.)’ [Cit.]” In re P. L. S., 170 Ga. App. 74, 75 (1) (316 SE2d 175) (1984); see also J.T.M., supra at 638-639. The juvenile court’s finding of delinquency is, therefore, supported by sufficient evidence.

Decided March 6,1997.

Gregory Homer, for appellants.

J. Gray Conger, District Attorney, George E. Lipscomb II, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


text:
    A97A0277.
    AKHTAR v. FOOD & GAS, INC.
    (483 SE2d 359)
   Judge Harold R. Banke.

Food & Gas, Inc. (“FG”), a supplier of fuel and petroleum products to independent gas stations, sued Jeff Akhtar d/b/a Fina Gas Station for breach of a consignment agreement. The jury awarded FG $41,635.15 and Akhtar $3,257.28 on his counterclaim. Akhtar appeals, arguing that the trial court erred in denying his motions for directed verdict and for judgment notwithstanding the verdict because FG was not entitled to damages as a matter of law.

This case arose after the parties entered into an agreement in which FG was to be the exclusive consignor of all the gasoline Akhtar sold at his gas station. The agreement required Akhtar to provide FG with a daily accounting of the quantity of the consigned products sold, the receipts from their sale, and the amount of the daily bank deposit. As part of the agreement, FG expended $39,433.14 in repairs and improvements on Akhtar’s property, including replacing several gas pumps, paving, painting, and installing a canopy wrap with lighting.

Decided March 6,1997.

Ralph S. Goldberg, for appellant.

Dearing & Klauber, James E. Dearing, Jr., for appellee.

After a series of audits, FG concluded that Akhtar sold approximately $5,000 more gasoline than was reported. When confronted with this information, Akhtar suggested that they just forget what happened and requested that FG continue to deliver gasoline.

FG then filed this action, alleging that Akhtar breached the contract’s provisions requiring a daily accounting of sales and exclusivity. Akhtar responded with a counterclaim alleging that FG failed to provide the product promised and interfered with unspecified business relationships with third parties. Held:

Notwithstanding Akhtar’s argument to the contrary, FG’s evidence of damages was sufficient to support the verdict. Akhtar offers no authority directly on point for his proposition that FG never proved the value of the improvements it made to Akhtar’s property. In fact, none of the cases on which he relies are breach of contract cases dealing with improvements and most are not breach of contract cases at all. See, e.g., Beavers v. Weatherly, 250 Ga. 546 (299 SE2d 730) (1983) (quantum meruit case with transfer of deed by incompetent); Watson & Powers v. Loughran, 112 Ga. 837 (38 SE 82) (1901) (negligence); Quattlebaum v. Ga. Power Co., 165 Ga. App. 510 (301 SE2d 677) (1983) (punitive damages denied on negligence claim); City of Elberton v. J. C. Pool Realty Co., 111 Ga. App. 765 (143 SE2d 407) (1965) (negligence).

A provision in the contract at issue contemplated that FG would make the improvements. The expenses incurred in complying with this provision are recoverable as damages. OCGA § 13-6-9. This rule is particularly germane where, as here, most of the improvements were not removable.

FG presented evidence of the cost of each of the improvements, totaling almost $40,000, the approximate amount of the jury’s award. This evidence was sufficient to justify the entry of judgment in that amount. See Hathaway v. Gorfine, 134 Ga. App. 748, 750 (2) (216 SE2d 338) (1975). Thus, the trial court properly denied the motions for directed verdict and for j.n.o.v. Lister v. Scriver, 216 Ga. App. 741, 744 (1) (456 SE2d 83) (1995).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.