text:
    A98A0598, A98A0599.
    BULL STREET CHURCH OF CHRIST v. JENSEN et al.; and vice versa.
    (504 SE2d 1)
   Ruffin, Judge.

At the Bull Street Church of Christ (“the Church”), ten-year-old Scottie Wileke molested a four-year-old girl. The victim’s parents, John Jensen and Monica Jensen Bradley, sued the Church for their daughter’s injuries, alleging that the Church negligently failed to protect the victim from Wileke despite having prior notice of Wileke’s sexual propensities. A jury awarded the plaintiffs $33,319 in past medical expenses, $25,000 in future medical expenses and $25,000 in general damages. The Church moved for a new trial or judgment notwithstanding the verdict (“j.n.o.v.”). The trial court granted the Church’s motion for j.n.o.v. as to the award for future medical expenses, reducing the award from $25,000 to $5,000. As to the remainder of the verdict, the trial court denied the motion. In Case No. A98A0598, the Church appealed the denial of its motion, asserting that there was insufficient evidence that the Church had prior knowledge of Wileke’s propensities. In Case No. A98A0599, the plaintiffs cross-appealed, claiming that the trial court erred in reducing the award for future medical expenses. For the following reasons, we affirm in part and reverse in part.

In reviewing a trial court’s decision on a motion for j.n.o.v., “ ‘the question before this court is not whether the verdict and the judgment of the trial court was merely authorized, but is whether a contrary judgment was demanded.’ [Cits.] A judgment n.o.v. is properly granted only when there can be only one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is not error to deny the motion. [Cits.]” Stone v. Cook, 190 Ga. App. 11, 12 (1) (378 SE2d 142) (1989).

Case No. A98A0598

Viewed in the light most favorable to the plaintiffs, the evidence shows that on Sunday, March 10,1991, the victim attended a class at the church for three-year-old to six-year-old children while her mother, Monica Jensen, attended an adult church service. Jensen left the victim with the teachers of the children’s class, Ñola and Mark Ledford. Jim Waller, an elder of the Church, testified that the Church school is a cooperative venture between the Church and the volunteer teachers and that there are no written policies or procedures regarding the operations of the church classes for children.

According to Jensen, the victim usually waited in the classroom for Jensen to retrieve her after church. However, the victim testified that on this occasion the class ended and the children were allowed to leave the classroom to find their parents. While the victim waited for her mother next to a stairwell leading to her classroom, Wileke approached and asked her if she wanted to see his classroom. The victim followed Wileke into an unoccupied room, where he pushed her underneath a table and sat on her legs. Wileke then pulled up the victim’s dress, touched her “privates” and kissed her on the mouth. Thereafter, he released the victim and she returned downstairs to find her mother.

After telling her mother what Wileke had done, Jensen contacted the church minister and advised him about the attack. According to Jensen, the minister replied “ ‘Oh, no, it’s happened again.’ ” Jensen testified that the minister then explained that Wileke had previously acted inappropriately towards a child of another church family. According to Jensen, the elders advised her that they wanted to keep the incident quiet in order to avoid a conflict in the church.

After the attack, the victim received treatment by a psychotherapist, and was hospitalized in 1993 and 1995 after having suicidal thoughts. According to psychiatrist Arnold Negrin whose deposition testimony was presented at trial, he treated the victim during her hospitalization in 1995 when she was severely depressed. Negrin testified that he saw the victim in August 1996, and concluded that while she was not suffering from a major depression, she was still tearful, had no interest in activities, and isolated herself. Negrin stated that the victim would probably need future treatment, either on an out-patient basis or hospitalization. He concluded that Wileke’s attack on the victim was a major cause of her depression.

Caroline Watson, a social worker and church member who offered counseling services to other church members on a volunteer basis, testified regarding the church’s prior knowledge of Wileke’s propensities. Watson said that in 1989, she received a call from church member S.C., who said that she had spoken with Waller about an incident involving Wileke. According to Watson, S.C. said that Waller advised her to speak with Watson about the incident. Watson testified that S.C. told her there were several families from the Church visiting the S.C. household for a “casual get-together.” Watson further testified that S.C. said that her four-year-old girl was in the bathtub when Wileke “came in and exposed himself to her and urinated on her.” Watson said that she later talked with Waller and another elder, Gary Lyons, about the incident. Although Watson did not advise Waller or Lyons to warn all members of the church, she did tell Waller that she thought Wileke’s behavior was deviant. Watson testified that Waller wanted to keep the 1989 incident quiet. According to Watson, Waller “told me that he felt the less said, the better. . . .”

S.C. also testified, denying that she ever talked with Watson about the incident. S.C. stated that the day after Wileke had been at her house, her daughter told her that Wileke had shown her his penis. According to S.C., neither she nor her daughter ever said that Wileke had urinated on the girl. S.C. testified that her daughter was not emotional about the incident, but viewed it as a “show and tell type thing.” S.C. stated that she called Waller for advice since he was a friend and physician. According to S.C., Waller said that if there appeared to be no physical problems, S.C. should just let the incident pass.

Waller testified that as an elder of the Church he listens to the parishioners’ personal problems and helps the parishioners when he can. He noted that the elders hold a position of trust and confidence in the Church. Furthermore, he stated that if there was a danger in the Church that was likely to cause harm to children, he would do his best to protect the children. Regarding the 1989 incident at S.C.’s home, Waller denied that anyone advised him that Wileke had urinated on S.C.’s daughter. Waller believed that the incident, as recounted to him by S.C., was benign and merely a type of “show and tell” that should not be overemphasized. He did not think the incident was serious, and he advised S.C. to let the matter drop. There was no evidence that Waller or any church member investigated the incident further. Waller denied speaking with Watson about the 1989 incident shortly after it occurred or advising S.C. to speak with Watson. Rather, Waller testified that after the incident with the plaintiffs’ daughter, he spoke with Watson, advising her that her statements concerning the 1989 incident were not true and that she was embellishing the incident to the Church’s detriment. Waller also testified that prior to the attack on the victim, he had no evidence of any sexual problems with Wileke. He denied that he attempted to suppress information regarding Wileke’s attack on the victim.

Lyons, the other elder whom Watson claimed she spoke with concerning Wileke’s encounter with S.C.’s child, denied ever speaking with Watson about the incident. He testified that the first incident involving Wileke of which he was aware was the 1991 assault on the victim in this case.

Another elder of the Church, the minister, and Nola Ledford also testified, denying having any knowledge of the incident at S.C.’s home.

1. As the plaintiffs’ claim is one for negligence, they must first show “ ‘the existence of a duty; second, the omission to exercise ordinary and reasonable care in connection therewith; and third, injury resulting in consequence thereof.’ [Cits.]” Patillo v. Thompson, 106 Ga. App. 808, 811-812 (4) (128 SE2d 656) (1962). See also Tolbert v. Tanner, 180 Ga. App. 441, 443 (2) (349 SE2d 463) (1986).

In this case, the plaintiffs assert that the Church was negligent in its conduct regarding Wileke and its supervision of the victim. “As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm.” (Citation and punctuation omitted.) Wallace v. Boys Club of Albany, 211 Ga. App. 534, 535 (1) (439 SE2d 746) (1993).

As the defendant argued in Wallace, the Church in this case asserts that any negligence on its part in supervising the victim was cut off by Wileke’s intervening criminal act which the Church maintains was unforeseeable. Id. at 536. However, we concluded in Wallace that a specific showing of a prior criminal act on a defendant’s premises is not required in a case involving liability for the negligent supervision of a child. Id. Rather, “[w]hat is at issue in a case alleging negligent supervision of a child is whether the danger of the type of harm the child suffered was reasonably foreseeable.” Id. And, “what is reasonably foreseeable is not exclusively dependent upon what is known about a specific place. The danger is not only what may happen at a specific place but what may happen to any child at any place, given that children are mobile and may . . . wander away from the place where they are supposed to be if they are not adequately supervised.” Id.

Clearly, in this case the Church assumed the responsibility for caring for a class of three-year-old to six-year-old children, including the four-year-old victim. Thus, the Church had the duty to use reasonable care to protect the children from a reasonably foreseeable risk of harm. Wallace, supra; Patillo, supra. There is also evidence that the Church, through the volunteer Church teachers, breached that duty by allowing the victim and other young children to wander through the Church without adult supervision. Patillo, supra. Finally, there is evidence showing that the victim’s injuries were caused by Wileke’s conduct, i.e., an intervening criminal act. See Wallace, supra at 536. See also Doe v. Howell, 212 Ga. App. 305 (1) (441 SE2d 767) (1994). Accordingly, the issue is whether there was any evidence that the danger of the sexual assault on the victim was reasonably foreseeable to the Church. Wallace, supra at 536.

Pretermitting whether the Church had specific notice of Wileke’s sexual propensities, we hold that the Church had reasonable grounds for apprehending that if the teachers left the victim unsupervised, there was a general risk that the child could be harmed. As we held in Wallace, those who agree to supervise small children cannot avoid liability simply because the injury to a child without adult supervision occurred off the premises or because no prior, similar injury to the small child had occurred so as to place the supervisors on notice of the potential for such harm. Wallace, supra at 536-537. Instead, care providers must realize that it is foreseeable that a small child, such as the victim, leaving a church classroom could wander off the church premises and be hit by a car, abducted or otherwise injured. Even if the child remained on the premises, the potential for harm exists — e.g., she could fall down stairs, fight with another child, or get into various forms of mischief that would cause injury. Even absent actual knowledge of a specific risk, those who agree to supervise small children are charged with constructive notice of the general risks of harm, including assault and molestation, that may befall an unsupervised child. See Wallace, supra. “[A] jury could reasonably find that the [assault] and abuse of young children who are not properly supervised is foreseeable and is o"ne of the dangers parents and other care givers expressly protect children from by providing them proper supervision and care.” Id. at 537.

Accordingly, we conclude that the jury in this case had sufficient evidence before it, even without evidence of Wileke’s prior behavior, to find that the Church had a duty to supervise the victim, which it breached by allowing the victim to roam free in the Church where it was foreseeable that she could be harmed by a plethora of environmental and societal dangers. See id. As there was an evidentiary basis for the jury’s verdict, the trial court properly denied the motion for j.n.o.v. Stone, supra.

In addition to the Church’s constructive knowledge of the general risks of harm, there was evidence that the Church had actual notice of Wileke’s sexual propensities. Thus the Church had reasonable grounds for apprehending that Wileke’s criminal act could occur. Doe, supra; Wallace, supra. Viewed in a light most favorable to the plaintiffs, the evidence showed that Waller, a Church elder who admittedly held a position of trust and confidence in the Church and who had a responsibility to protect the young parishioners, learned from Watson that Wileke has exposed himself and urinated on another young parishioner in 1989. Waller also learned directly from S.C. that Wileke had inappropriately shown her daughter his penis. As well, Jensen testified that after Wileke attacked and abused the victim, the minister proclaimed “Oh, no it’s happened again[,]” and explained to Jensen that Wileke had been involved in another sexual incident. While Waller, the minister and other Church elders denied having any knowledge of Wileke’s sexual propensities, such conflicts in the testimony were matters of credibility for the jury to resolve. See Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997); Stubbs v. Harmon, 226 Ga. App. 631, 632 (1) (487 SE2d 91) (1997). The conflicts in testimony did not mandate a j.n.o.v. See Stone, supra.

Accordingly, there was sufficient evidence for a jury to conclude that, at least through Waller’s conversations with S.C. and Watson, the Church had notice that Wileke had inappropriately acted in a sexual manner towards a smaller child prior to his attack on the victim. “[W]e cannot rule that [Wileke’s] intervening criminal act was unforeseeable as a matter of law.” Wallace, supra at 536. Accordingly, as stated above, since there was an evidentiary basis for the jury’s verdict and a contrary judgment was not demanded, the trial court did not err in denying the Church’s motion for j.n.o.v. Stone, supra.

2. The Church asserts that Watson’s testimony regarding the 1989 incident was the only evidence establishing its prior knowledge, and that because it was impermissible hearsay, it was insufficient to establish knowledge.

We first note that there was other evidence showing the Church’s prior knowledge of Wileke’s actions in 1989, including S.C.’s discussion with Waller about the incident and the minister’s reaction when Jensen told him about Wileke’s attack on the victim. And, in any event, we find that Watson’s testimony regarding what S.C. told her about the 1989 incident was not impermissible hearsay.

“ As a fundamental rule, the definition of hearsay does not include out-of-court statements which are not offered as proof of the facts asserted in such statement, but are offered merely as proof that such a statement was made.’ Green, Gá. Law of Evidence (4th ed.) Hearsay, § 218.” Quiktrip Corp. v. Childs, 220 Ga. App. 463, 466 (3) (469 SE2d 763) (1996). Moreover, “[w]hen, in a legal investigation, information [and] conversations . . . are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” OCGA § 24-3-2.

In Quiktrip, the trial court admitted testimony regarding what unidentified persons told Quiktrip employees about an icy condition on Quiktrip’s premises that subsequently caused the plaintiff’s injuries. We held that “the issue was not whether the unidentified individuals were telling the truth when they informed the Quiktrip employees about the ice, but rather, whether Quiktrip had notice of the hazardous condition. Thus, this testimony would be ‘direct evidence of the fact in issue: Quiktrip’s notice of the hazard.’ [Cit.]” (Punctuation omitted.) Id.

In much the same fashion, Watson’s testimony regarding S.C.’s statements to her was direct evidence because it explained what inspired Watson to notify the elders of Wileke’s propensities. Watson’s testimony about her conversation with Waller and another elder provided evidence that the Church had notice of the hazard. The circumstances as to how Watson learned of Wileke’s prior behavior were pertinent to her testimony and the credence given to what she told the elders. S.C.’s statements were not admitted to prove the truth of those statements. Rather, Watson testified regarding the statements to show that the statements were made and that these statements precipitated her decision to speak with the Church elders about Wileke’s behavior. See Quiktrip, supra.

Moreover, Watson’s conversation with S.C. explained Watson’s conduct and motive in advising the Church elders of Wileke’s propensities. See OCGA § 24-3-2. And this conduct was pertinent to show that the Church had notice of Wileke’s actions. See Bryant v. Carver State Bank, 207 Ga. App. 659, 660 (1) (428 SE2d 621) (1993) (“[B]efore such hearsay evidence becomes admissible for the purpose of showing conduct, that conduct must be a relevant issue in the case. [Cit.]”). Accordingly, the trial court did not err in allowing Watson to testify regarding her conversation with S.C.

Case No. A98A0599

3. In their cross-appeal, the plaintiffs assert that the trial court erred in granting the Church’s motion for j.n.o.v. regarding future medical expenses and unilaterally reducing the verdict. We agree.

An award of future medical expenses is authorized where it is supported by competent evidence “to guide the jury in arriving at a reasonable value for such expenses.” Ga. Power Co. v. Watts, 56 Ga. App. 322, 324 (4) (192 SE 493) (1937) (physical precedent only).

In the instant case, the plaintiffs presented evidence that in the five years between the attack and the trial, the victim’s medical bills totalled $33,319.55. The victim had to be hospitalized twice, in 1993 and 1995, for depression. In 1995, the victim began to hear voices and had suicidal thoughts, requiring her hospitalization. In 1995, Dr. Negrin treated the victim and concluded that she was severely depressed. During his deposition testimony presented during trial, he linked the victim’s depression to Wileke’s assault.

Negrin testified regarding the victim’s future medical expenses. While he noted that she did not appear to suffer from severe depression in 1996, he said that she still had nightmares, difficulty sleeping, unexplained crying episodes, and isolated herself. Given the recurring nature of depression, Negrin testified that the victim would benefit from active treatment with a child psychiatrist through 1997. He further asserted that the victim will probably need some form of treatment in 1998. According to Negrin, this might include therapy on an out-patient basis, or may require hospitalization. Negrin noted that his rate for therapy was $120 an hour and that anti-depressant medication costs between $60 and $80 per month. Negrin concluded that given the nature of the victim’s depression, she may need treatment for 20 years or treatment in 20 years if the depression recurs.

Decided June 16, 1998

Reconsideration denied June 26, 1998

Barrow, Sims, Morrow, Lee & Gardner, R. Stephen Sims, A. Mark Lee, Goodman, McGuffey, Aust & Lindsey, Edward H. Lindsey, Jr., Elizabeth B. Thompson, for appellant. Savage, Herndon & Turner, Robert B. Turner, Robert S. Kraeuter, Russell M. Stookey, for appellees.

While the plaintiffs’ evidence does not pinpoint a specific figure for future medical costs, we find that the jury’s award of damages was within the range of the evidence and thus must be affirmed. See White v. Arthur Enterprises, 219 Ga. App. 124 (1) (464 SE2d 225) (1995); City Dodge v. Gardner, 130 Ga. App. 502, 505 (3) (203 SE2d 729) (1973) (physical precedent only). Moreover, as the evidence did not clearly demand a reduction of future medical costs to $5,000, we conclude that the trial court erred in granting the Church’s motion for j.n.o.v. on this issue and reducing the award. Stone, supra.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A98A0742.
    SMITH v. STUCKEY.
    (503 SE2d 284)
   Pope, Presiding Judge.

Appellees W. S. Stuckey, Jr., Lynda Stuckey Franklin (the “Stuckeys”) and Citizens Corporation (“Citizens”) sued appellant Hal M. Smith, Jr., for specific performance of a stock option agreement, or in the alternative for a declaratory judgment. A jury granted the Stuckeys and Citizens specific performance under the agreement and awarded them attorney fees in the amount of $14,687.75. Smith appeals from the denial of his motions for directed verdict on the ground that the stock option agreement was void under the rule against perpetuities. He also appeals the trial court’s denial of his motion for directed verdict on the issue of attorney fees.

In 1984, Stuckey Timberlands, Inc. began soliciting options to purchase shares of Citizens Bank & Trust Company (the “Bank”) at a price of $1,700 per share. Smith gave Stuckey Timberlands an option to purchase 92 of his 292 Bank shares. After Stuckey Timberlands acquired enough options to purchase 90 percent of the 2,000 outstanding shares of the Bank, it assigned the options to Citizens. The Stuckey family are the shareholders of Citizens, a holding company formed for the purpose of acquiring the Bank.

Before Citizens’ acquisition of the Bank could be completed, the holders of 38 shares of the Bank’s stock who had previously indicated that they would be willing to sell their shares elected to retain them. Smith agreed to sell an additional 38 of his shares so Citizens could acquire a total of 1,800, or 90 percent, of the outstanding shares. This left Smith with a total of 162 shares.

In connection with these transactions the Stuckeys and Smith negotiated an agreement regarding the disposition of Smith’s remaining Bank shares. Smith was concerned that the price he received upon the sale of his shares might be discounted due to his minority status. The Stuckeys for their part eventually hoped to acquire control through Citizens of all the Bank stock.

Under the parties’ agreement, Smith was granted the option after January 29, 1988, to compel the Stuckeys to purchase, through Citizens, Smith’s remaining Bank stock. The agreement also gave Citizens the option to purchase Smith’s stock at any time after January 29, 1995. The agreement contained no time limitation for exercising the options, but did specify a formula for determining the purchase price on the exercise of either option.

Smith never exercised his option under the agreement, but Citizens notified Smith by letter dated February 7, 1995, that it intended to exercise its option to purchase Smith’s shares. The parties disagreed, however, over the price to be paid for the stock. After the parties were unable to resolve their differences, Citizens attempted a tender under the agreement. Smith refused the tender, contending that it did not reflect the proper purchase price under the option agreement.

The Stuckeys and Citizens sued Smith for specific performance under the option agreement, or in the alternative, asked the court for a declaratory judgment of the parties’ rights. After discovery, each side moved for summary judgment, but the trial court denied both motions. In denying Smith’s motion, the trial court rejected his argument that the rule against perpetuities (the “Rule”) barred enforcement of the option agreement.

At trial Smith made two motions for directed verdict at the close of the evidence presented by the Stuckeys and Citizens, and later renewed the motions at the close of all the evidence. In one motion Smith reasserted his prior argument that the agreement was void under the Rule. In his other motion Smith argued that there was no evidence to support an award of attorney fees. The court denied these motions.

1. The first issue to be addressed is whether the Rule applies to the parties’ stock option agreement. The law in Georgia is unclear as to whether the Rule is applicable to property other than interests in real estate. In one 80-year-old case, the Supreme Court of Georgia found a trust deed conveying stock to be invalid under the Rule. Shewmake v. Robinson, 148 Ga. 287, 288 (96 SE 564) (1918). In that case, a father transferred stock in trust to his son for the benefit of his son’s wife during her life, or “for any future wife of (the son), and any children that may be born to him by his present or any future wife. . . .” Id. at 287. The Supreme Court held that the conveyances to a subsequent wife, and any children of such wife, were too remote and thus void under the Rule. Id. at 288.

But in later cases, the Supreme Court has declined to apply the Rule to property or rights that do not represent an interest in real estate. See Southern Airways Co. v. DeKalb County, 216 Ga. 358 (116 SE2d 602) (1960) (declining to apply the Rule to a usufruct); Reeves v. Comfort, 172 Ga. 331 (157 SE 629) (1931) (holding that the Rule did not apply to restrictive covenants). And more recently, the Supreme Court has questioned the “wisdom and legal logic ... for extending the rule’s applicability to a commercial setting ... as “[t]he rule came into being in order to control family property transfers which limited the rights of certain generations to alienate property.” St. Regis Paper Co. v. Brown, 247 Ga. 361, 362 (276 SE2d 24) (1981).

While the Supreme Court’s later decisions raise strong doubt as to whether the Rule should be extended to personal property, we are bound under Shewmake to assume that the Rule would apply to the parties’ stock option agreement. See also Bagwell v. Henson, 124 Ga. App. 92, 93 (183 SE2d 485) (1971) (in which this Court stated that the Rule “applies equally to real estate and personal property,” while construing an option to repurchase buildings and improvements on another’s land).

2. Even assuming the Rule applies, however, we hold that “there was no attempt here to affirmatively create a perpetual right to exercise the option . . .; but there was only the absence of a time limitation . . . [and in such circumstances Georgia courts have] held that the optionee had a reasonable time in which to exercise the option.” Brown v. McInvale, 118 Ga. App. 375, 376 (163 SE2d 854) (1968). Young v. Cass, 255 Ga. 508 (340 SE2d 185) (1986) (implying a reasonable time to give notice under an option agreement); Read v. GHDC, Inc., 254 Ga. 706 (334 SE2d 165) (1985) (implying a reasonable time to perform under a real estate sales contract); Shiver v. Benton, 251 Ga. 284 (304 SE2d 903) (1983) (implying a reasonable time for a right of first refusal agreement); Kirkland v. Odum, 156 Ga. 131 (118 SE 706) (1923) (implying a reasonable time under a lease for right to turpentine timber).

In Brown, this Court considered whether the Rule barred enforcement of a stock option agreement that contained no time limitation for the exercise of the option. We held that the Brown agreement, which provided that the option could be exercised upon the expiration of 24 months, “must be exercised immediately upon the expiration of the twenty-four months or within a reasonable time thereafter.” Brown v. McInvale, 118 Ga. App. at 376. Similarly, we read the option agreement in this case to provide that Citizens must exercise the option immediately after January 29, 1995, or within a reasonable time thereafter.

Smith argues that this case is distinguishable from Brown because the parties’ option agreement provides that it is binding upon the Stuckeys and their heirs “so long as [they] own or [their] heirs own any shares of stock of Citizens Corporation” and also that it is binding upon Smith and his heirs. We do not read this language as establishing a time period for the exercise of the options or as intending to create a perpetuity. Rather, this language simply provides that should one of the parties die during the reasonable period allowed under the agreement, the options are enforceable against that party’s heirs. Accordingly, this case may be distinguished from those cases cited by Smith in which the parties’ agreement evidenced an intent to create a perpetuity. See, e.g., Thomas v. Murrow, 245 Ga. 38, 39 (262 SE2d 802) (1980) (involving an option to purchase at any time after the “undersigned or their heirs and assigns cease to operate a (cotton) gin. . . .”); Turner v. Peacock, 153 Ga. 870 (1) (113 SE 585) (1922) (involving a “perpetual” option to purchase land).

“Having construed the [stock option agreement] as requiring performance within a reasonable time, we take an additional step and find that twenty-one years would be unreasonable and that the contract therefore does not create a perpetuity” in violation of the Rule. Read v. GHDC, Inc., 254 Ga. at 706. Accordingly, the trial court correctly denied Smith’s motion for directed verdict under the Rule.

3. However, we reverse the trial court’s denial of Smith’s motion with regard to attorney fees. A review of the record shows the existence of a bona fide controversy as to the issue of the purchase price to be paid under the agreement. The agreement defined the purchase price to include a calculation of “the product of 200 times 1.18 multiplied by the book value of each share of stock in Citizens Bank & Trust Company as shown on its most recent call report filed with the Federal Reserve Bank of Atlanta (or its successor).” The parties’ dispute centered around what was meant by the term “book value.” Smith contended that the term should be interpreted under FDIC requirements in existence at the time the agreement was signed in 1985, while the Stuckeys and Citizens contended that the term should be interpreted under current FDIC requirements, which included a 1994 change affecting the calculation of book value.

“ ‘The existence of such a bona fide controversy would preclude a recovery of OCGA § 13-6-11 attorney’s fees on the theory that [Smith] had been stubbornly litigious or caused [the Stuckeys and Citizens] unnecessary expense, notwithstanding that the jury ultimately resolved the controversy in favor of [the Stuckeys and Citizens]. [Cits.]”’ Pulte Home Corp. v. Woodland Nursery &c., 230 Ga. App. 455, 457 (496 SE2d 546) (1998). Williams Tile &c. Co. v. Ra-Lin & Assoc., 206 Ga. App. 750, 752 (426 SE2d 598) (1992) (reversing denial of motion for directed verdict on attorney fees where bona fide controversy existed).

Nor does the record contain any evidence of bad faith to support the award of attorney fees. “ ‘[I]t is well settled that the “bad faith” contemplated by (OCGA § 13-6-11) is bad faith “connected with the transaction and dealings out of which the cause of action arose,” rather than bad faith in defending or resisting the claim after the cause of action has already arisen. [Cits.]’ ” Brown v. Baker, 197 Ga. App. 466, 467 (398 SE2d 797) (1990). “The record reveals that, although there was evidence of [Smith’s failure to accept the tender], ‘there was insufficient evidence of [Smith’s] bad faith in entering into the [option agreement] or [the] performance thereof. There was no showing that [Smith] acted through ill will or furtive design with regard to the performance of the contract. Since there was no evidence from which a jury could find that the contract was made in bad faith or that [Smith] breached it as a result of some sinister motive, the award of attorney’s fees cannot be sustained on the basis of bad faith. ...” Pulte Home Corp. v. Woodland Nursery &c., 230 Ga. App. at 458. Accordingly, the trial court erred in denying Smith’s motions for directed verdict on the issue of attorney fees.

Decided June 8, 1998

Reconsideration denied June 26, 1998

Phears & Moldovan, Victor L. Moldovan, Richard E. Harris, for appellant.

Martin, Snow, Grant & Napier, John T. McGoldrick, Jr., William K. McGowan, for appellee.

Judgment affirmed in part and reversed in part.

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

       Although Georgia adopted the Uniform Statutory Rule Against Perpetuities in 1990, OCGA § 44-6-200 et seq., this case arises under an earlier version of the Rule because it involves an interest created prior to May 1, 1990. OCGA § 44-6-205 (1).
      The earlier statute, which was repealed when the uniform rule was adopted, provided, “Limitations of estates may extend through any number of lives in being at the time when the limitations commence, and 21 years, and the usual period of gestation added thereafter. The law terms a limitation beyond that period a perpetuity and forbids its creation. When an attempt is made to create a perpetuity, the law will give effect to the limitations which are not too remote and will declare the other limitations void, thereby vesting the fee in the last taker under the legal limitations.” OCGA § 44-6-1 (a), repealed by Ga. L. 1990, p. 1837, § 1, effective May 1, 1990.

       In this instance, Citizens notified Smith by letter dated nine days after the option first became exercisable under the parties’ agreement and ten years after the parties signed the agreement. It appears, therefore, that Citizens’ attempt to exercise its option was within the reasonable time allowed by the parties’ agreement. See Shiver v. Benton, 251 Ga. at 288 (holding that party’s attempt to enforce their rights under agreement signed 11 years earlier was within reasonable time).

       Smith also correctly argues that a bona fide controversy exists as to whether the stock option agreement was void under the rule against perpetuities. As that issue was decided by the court prior to trial, the jury was unaware of this controversy when it made its findings.


author: Andrews, Chief Judge.

text:
    A97A0356.
    THE STATE v. VINES.
    (503 SE2d 100)
    Decided June 26, 1998.

      Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellant.

      William C. Drosky, for appellee.
   Andrews, Chief Judge.

In State v. Vines, 226 Ga. App. 779 (487 SE2d 521) (1997), we reversed the trial court’s judgment sustaining Vines’ demurrer and dismissing the indictment against Vines for child molestation. The Supreme Court granted certiorari and reversed the judgment of this Court in Vines v. State, 269 Ga. 438 (499 SE2d 630) (1998). Accordingly, the judgment of the Supreme Court is made the judgment of this Court, and the trial court’s judgment granting the demurrer and dismissing the indictment is affirmed.

Judgment affirmed.

McMurray, P. J., Beasley, Smith, Ruffin, Eldridge, JJ, and Senior Appellate Judge Harold R. Banke concur.


author: Smith, Judge.

text:
    A98A0313.
    HUGGINS et al. v. CHAPIN.
    (503 SE2d 356)
   Smith, Judge.

This case arises out of the trial court’s award of attorney fees in favor of J. Thomas Chapin against Ronald Huggins and I.H. International, Inc. Chapin filed an action against Huggins and I.H. International, Inc. alleging fraud and violation of the Georgia Securities Act of 1973, OCGA § 10-5-1 et seq. The trial court granted summary judgment to Chapin with respect to the securities violation and awarded him attorney fees under OCGA § 10-5-14 (a), in addition to the amount of his investment plus interest. We affirmed this judgment in Huggins v. Chapin, 227 Ga. App. 340 (489 SE2d 109) (1997). Following a hearing; the trial court awarded Chapin attorney fees in the amount of $40,000. Huggins appeals this award. Because we conclude that the trial court failed to show how it apportioned attorney fees to that claim on which Chapin prevailed, we vacate the trial court’s judgment and remand this case for further proceedings concerning the attorney fees issue, as more fully discussed below.

In support of Chapin’s claim for attorney fees, his attorney submitted an affidavit reciting his hourly rate and the number of hours he and other members of his law .firm had spent on the case, as well as the rates charged by the other attorneys assisting in the case. In his affidavit and again during the hearing on the attorney fees motion, he relied on these figures to reach a figure that, in his opinion, reasonably represented the total attorney fees incurred by members of his firm. He also recited an amount representing expenses incurred during the litigation. Attached to the attorney’s affidavit were billing statements provided to Chapin.

Huggins’s principal argument below was that Chapin’s counsel failed to distinguish between fees incurred in connection with Chapin’s successful securities violation claim and those attributable to Chapin’s remaining fraud claims. It is true that the actual dollar figures presented by Chapin represented the total amount of fees and expenses incurred as a result of pre-filing settlement negotiations, the filing of pleadings, extensive discovery, and trial preparation, without clearly delineating which fees were attributable to those associated with the securities claim. And under the well settled law of this state, a “lump sum” recovery for fees associated with claims on which a litigant does not prevail is unauthorized. See, e.g., United Companies Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) (475 SE2d 601) (1996); Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) (1993). But when asked if he could separate out the time and expenses attributable to the Securities Act claim from the other three original claims, Chapin’s attorney responded that all the work was “intertwined to the point that it is impossible to identify any particular act that applied uniquely only to one claim.” In his judgment, “everything we did . . . had application to all claims because the fraud issue was related to [the] in pari delicto defense. The fraud issue was related to the it’s not a security defense. . . . [I]t is impossible to distinguish because there were no distinguishable acts. All of the actions we took were in pursuit of all of the claims because they were all intertwined and the same facts had to be discovered relative to all of the claims because of the nature of the defenses that were raised.”

Several times during the hearing, the trial court appeared to recognize the inequity of awarding the total amount of Chapin’s attorney fees incurred in preparation of all of his claims for trial; the court clearly appreciated the difficulty inherent in a case such as this. Obviously attempting to reach an equitable figure representing less than the total amount of approximately $75,000 sought by Chapin, the court awarded attorney fees in the amount of $40,000.

The sum arrived at may well have been reasonable. Chapin’s evidence that all of his claims were intertwined and that work performed in connection with all claims was necessary as well for the securities claim may have persuaded the court. Or the court may not have based its award at all on the interwoven nature of the claims, but simply concluded that $40,000 was the sum attributable to the successful securities claim alone. On its face, however, the trial court’s order fails to show the complex decision making process necessarily involved in reaching a particular dollar figure and fails to articulate why the amount awarded was $40,000 as opposed to any other amount. While the court may well have engaged in such a process, it is not reflected in the award or the record. The trial court simply did not provide this Court with a yardstick by which we may judge whether the award is reasonable. The award at least appears to be based upon guesswork, a result not authorized under our law. Southern Cellular, supra at 402. We therefore vacate the trial court’s judgment and remand this case for further action by the trial court. The court is directed to indicate the basis for its award. If the court needs supplemental evidence to determine the amount of attorney fees reasonably attributable to Chapin’s prevailing claim, it may hold a hearing. Alternatively, if the court concludes it can make the required determination without such evidence, by further considering the evidence already submitted by Chapin, it may do so.

Decided June 26, 1998.

Decker & Hallman, F. Edwin Hallman, Jr., David C. Moss, for appellants.

Wilson, Strickland & Benson, Mary M. Brockington, Sara L. Doyle, Daniel I. MacIntyre TV, for appellee.

We note Chapin’s argument that OCGA § 10-5-14 is a "strict liability” statute, under which recovery of all attorney fees associated with the return of his investment is authorized regardless of the fact that he prevailed on motion for summary judgment on only one claim. But OCGA § 10-5-14 (a) does not recite that all fees in a multicount action for claims other than those made under the Georgia Securities Act are recoverable, and we find no other authority for adopting such a rule and thereby expanding the well settled principle that actual attorney fees must be proved. Like other statutes authorizing the recovery of attorney fees OCGA § 10-5-14 (a) permits recovery of reasonable attorney fees, that is, fees allocated to successful claims. See generally e.g., Augusta Tennis Club v. Leger, 186 Ga. App. 440, 443 (5) (367 SE2d 263) (1988) (construing OCGA § 44-7-35 (c), which authorizes reasonable attorney fees when landlord fails to return any portion of security deposit required to be returned to tenant).

Judgment vacated and case remanded with direction.

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

       He reached a figure of $70,613.50, minus a retainer of $8,806.33, which represented the total attorney fees incurred by the firm. He stated that litigation expenses equalled $4,612.83.

       For example, the court stated that it would not “be fair to award [Chapin] attorneys fees for a lot of work done for claims that are unresolved” and that it would not award all of the fees if portions of the case remained pending.


author: Beasley, Judge.

text:
    A98A0448, A98A0449.
    FLORIDA INTERNATIONAL INDEMNITY COMPANY et al. v. OSGOOD; and vice versa.
    (503 SE2d 371)
   Beasley, Judge.

When Leonard Osgood’s rental house burned, he sought to recover on the $25,000 fire insurance policy he had with Florida International Indemnity Company (“FIIC”). After receiving notice of the fire, FIIC investigated and decided not to pay on the ground that Osgood had misrepresented in his insurance application that he had previously suffered no fire losses. In fact he had had numerous fire losses at various properties, including several significant losses in the three years preceding his application. The insurance application and the policy provided that any material misrepresentation by Osgood would void the policy. FIIC did not return the prepaid premium for four and one-half years.

Osgood sued FIIC and its underwriter for the $25,000 and for bad faith damages and attorney fees under OCGA § 33-4-6. The court granted Osgood’s motion to disallow FIIC’s defense that the policy was void, holding that after learning of the fraud FIIC sent Osgood a notice of termination and non-renewal, which waived this defense. After a bench trial the court awarded Osgood the $25,000 (less a $100 deductible) with no interest and allowed the bad faith issue to be tried to a jury. Following Osgood’s presentation of evidence, the court granted FIIC’s motion for a directed verdict, because Osgood presented no evidence of bad faith.

Both FIIC and Osgood appealed. The issues are (i) whether, after learning of the fraud, the sending of notice of termination and non-renewal waived FIIC’s defense that Osgood’s misrepresentations voided the policy ab initio, (ii) whether the court erred in allowing FIIC to present evidence of the fraud to defend the claim of bad faith, (iii) whether Osgood presented evidence of bad faith, and (iv) whether the court should have awarded prejudgment interest on the $24,900.

Case No. A98A0448

1. Although indicative of an intent to have the policy remain valid, FIIC’s retention of the premiums for several years after learning of the fraud is not dispositive. Columbian Nat. Life Ins. Co. v. Mulkey held that where the insured makes material misrepresentations in the application, the insurance company need not return the paid-in premiums to rely on the defense the misrepresentations voided the policy. Mulkey reasoned that to require such would be an invitation to fraud, for the “party who contemplates obtaining insurance by false representations may well feel that he is taking no chances of loss, but is entering upon a transaction in which he stands to gain large returns without any possibility of endangering his investment.”

Georgia Baptist Orphans Home v. Moon explained that in Mulkey the insurance company was not seeking the equitable relief of rescission. “The action was at law, and the alleged fraud was asserted merely as a legal defense.” Thus, the requirement of OCGA § 13-4-60 that to rescind the defrauded party must promptly restore to the other party any valuable consideration received under the contract did not apply.

But Mulkey qualified its conclusion: “Of course we do not mean to hold that an insurance company might not be estopped from setting up fraud practiced upon it in the procurement of the policy, if it should appear that after the discovery of such fraud the company did not promptly move to have the contract of insurance rescinded, but treated it as valid and binding and continued to receive the premiums thereon.” Quoting this language, Loeb v. Nationwide Mut. Fire Ins. Co. held that certain actions of the insurer after learning of the application fraud reflected that the insurer did not consider the policy void ab initio and waived the defense that fraud voided the policy. The actions were retaining the prepaid premium and sending a notice of termination to the insured indicating the policy would be in effect until the date of termination a month later. Loeb concluded that a directed verdict against the insurance company was required.

In State Farm Fire &c. Co. v. Jenkins, the insurance company learned the insured had made misrepresentations in a claim, which according to its terms voided the policy. Nevertheless, the insurance company mailed to the insured a cancellation notice stating that if payment were received before the cancellation date, the policy would be renewed and he would be afforded uninterrupted and continuous coverage. “At no time did [the insurance company] indicate that it considered the entire policy void or forfeited, but instead gave every indication to [the insured] that the policy remained in full force and effect.” The trial court concluded that this constituted waiver as a matter of law and granted a directed verdict against the insurance company. Jenkins affirmed the ruling.

Similarly, in Haugseth v. Cotton States Mut. Ins. Co. the insurance company, after learning of fraud in the application, treated the policy as valid and binding and retained the insured’s premiums as earned. Holding that such waived the defense of voidness, Haugseth explained: “ Tf a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it. Otherwise, he can not avoid or rescind such contract.’ Gibson v. Alford, 161 Ga. 672, 673 (5) (132 SE 442) [(1926)]. [Cits.]” One significant reason for this rule in insurance cases is that leading the insured to believe the validity of the policy is not questioned lulls the insured into not purchasing other insurance and thus subjects the insured’s property to continuing non-coverage.

After receiving notice of the December 8,1992 fire, FIIC immediately conducted an investigation and learned by December 29 that Osgood had made material misrepresentations in the application about the previous fires. After further investigation confirmed these facts, FIIC in February decided not to pay the claim. In May FIIC received a report that Osgood admitted to the previous fires.

FIIC did not notify Osgood that it considered the policy void. Instead, in July 1993, months after learning of the fraud, it sent a notice to Osgood informing him “in accordance with the terms and conditions of the . . . policy that the . . . policy will expire effective at and from the hour and date mentioned above [August 26, 1993, at 12:01 a.m.] and the policy will NOT be renewed.” The insurance agent testified this was a “combination” notice in that it gave notice the policy was effective until August 26, at which time it would expire or terminate, and it gave notice the policy would not be renewed.

Had the notice only informed Osgood the policy would not be renewed, then under Massachusetts Bay Ins. Co. v. Hall it would have pertained only to “a future event covering a future time period, and not on the status of the policy in force. ... [It would] advise of a discontinuation of the contractual relationship as it relates to that period of time when a renewal would ordinarily be effected.” It would not have addressed the validity of the then-current policy. But the notice did more than this. With knowledge of the alleged fraud, FIIC formally informed Osgood that in accordance with the policy provisions it “will expire effective at and from” a certain hour and day. Another part of the notice reiterated: “CANCELLATION OR TERMINATION WILL TAKE EFFECT AT” the specified time some weeks later.

Such language focuses on the status of the policy and assures that it is alive and well and will continue through the designated expiration date. This notice is similar to the termination notice found in Loeh and the cancellation notice found in Jenkins, both of which “gave every indication to [the insured] that the policy remained in full force and effect.” FIIC’s retention of the prepaid premium until after the first aborted trial in April 1997, nearly four and one-half years after learning of the fraud, and its failure to announce the policy was void also communicated that the policy was honored. Because these actions as a whole, all taken after learning of the fraud, are inconsistent with a defense that fraud voided the policy ab initio, the court did not err in holding FIIC waived the defense.

Case No. A98A0449

2. Although, with regard to liability under the policy, FIIC waived its defense the policy was void, it did not waive its defense against the bad faith claim that the reason it did not pay was Osgood’s fraud. These are two separate defenses to two separate claims. Waiver of the right to deny breach of contract does not automatically preclude the showing of reasonable grounds for the breach so as to avoid a finding of bad faith. The court did not err in allowing FIIC to present evidence on this point.

Osgood’s argument, that the court’s order disallowing this evidence to defend against the policy claim collaterally disallowed evidence to defend against the bad faith claim, fails for two reasons. It is illogical and “[a] final judgment is required before any possibility of application of the doctrines of res judicata or collateral estoppel may arise.” There was no final judgment when the court permitted the evidence.

3. It was not error to direct a verdict on the bad faith claim. OCGA § 33-4-6 requires the insured to show that the refusal to pay the insurance proceeds was in bad faith. The mere fact of nonpayment is “not evidence of bad faith, nor is any burden thereby cast on the insurer to prove good faith.”

“Ordinarily, the question of good or bad faith is for the jury, but when there is no evidence of unfounded reason for the nonpayment, or if the issue of liability is close, the court should disallow imposition of bad faith penalties. Good faith is determined by the reasonableness of nonpayment of a claim.” Because the damages are in the nature of a penalty, the statute is strictly construed and the right to such recovery must be clearly shown. A directed verdict is indicated where the insurer has reasonable grounds to contest the claim or the question of liability is close.

Reasonable grounds existed. In Osgood’s insurance application, he misrepresented his history of fires, a material consideration in issuing fire insurance policies. The insurance application and the policy both provided that material misrepresentations voided the policy, which would release FIIC from its obligation to pay.

Osgood points to FIIC’s later waiver of its legal defense as evidence of bad faith in not paying the claim. The waiver did not eliminate the fact that Osgood had defrauded FIIC. Even the issue of whether there was waiver was, in the words of Osgood, a “confusing and complex issue.” The court also deemed it “complicated” and “intricate and difficult of solution.” It was a close question. Such, as a matter of law, justifies refusal to pay. It does not constitute bad faith.

4. Osgood enumerates as error the denial of prejudgment interest on the $24,900. He reasons that the fire was a total loss and the amount was liquidated. He seeks interest from 60 days after his attorney’s demand letter, which FIIC concedes began the running of the statutory 60-day period.

OCGA § 7-4-15 provides: “All liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them; if payable on demand, they shall bear interest from the time of the demand.” Such prejudgment interest “is mandatory rather than discretionary and is awarded by a judge as a matter of law.” Liquidated insurance claims are subject to prejudgment interest.

The parties stipulated that the damages were liquidated at $24,900. Plaintiff is entitled to prejudgment interest at the legal rate of seven percent on the $24,900 beginning 60 days after the demand letter of August 18, which shall be awarded by the trial court upon remand.

Decided June 26, 1998

Karsman, Brooks & Callaway, R. Krannert Riddle, for appellants.

Wiseman, Blackburn & Futrell, James B. Blackburn, Jr., Michael L. Edwards, for appellee.

Judgment affirmed in Case No. A98A0448. Judgment affirmed in part, reversed in part and remanded with direction to award prejudgment interest in Case No. A98A0449.

Pope, P. J., and Ruffin, J., concur.

       146 Ga. 267 (91 SE 106) (1916).

       Id. at 271.

       192 Ga. 81, 85-86 (14 SE2d 590) (1941).

       (Emphasis in original.) Id. at 86.

       146 Ga. at 272.

       162 Ga. App. 561, 563 (292 SE2d 409) (1982).

       167 Ga. App. 4 (305 SE2d 801) (1983).

       Id. at 6 (1).

       192 Ga. App. 853 (386 SE2d 725) (1989).

       Id. at 855; see Jones v. Cartee, 227 Ga. App. 401, 404-405 (1) (489 SE2d 141) (1997) (“a party who ‘freely and advisedly does anything which amounts to the recognition of the transaction, or acts in a manner inconsistent with its repudiation’ acquiesces in the contract. . . . [A] party seeking to avoid a contract based on fraud ‘must, upon the discovery of the facts, at once announce his purpose and adhere to it’ ”) (citations omitted).

       See Mass. Bay Ins. Co. v. Hall, 196 Ga. App. 349, 353 (2) (b) (395 SE2d 851) (1990). Compare Parks v. State Farm Gen. Ins. Co., 231 Ga. App. 26, 30 (497 SE2d 575) (1998) (Beasley, J., dissenting), where the insured was aware the insurance was not in force despite later-received letters to the contrary, and in fact obtained alternative insurance.

       Supra, 196 Ga. App. at 353-354 (2) (b).

        Jenkins, supra, 167 Ga. App. at 6.

       The parties’ focus in their briefs on the time of Osgood’s demand or making a claim as determinative is misdirected. The key is the time of FIIC’s learning of the fraud.

       (Citations omitted.) Quinn v. State, 221 Ga. App. 399, 400 (2) (471 SE2d 337) (1996); see Carter v. State, 231 Ga. App. 42 (2) (497 SE2d 812) (1998).

        Interstate Life &c. Ins. Co. v. Williamson, 220 Ga. 323, 326 (138 SE2d 668) (1964).

       (Citations omitted.) Intl. Indemnity Co. v. Collins, 258 Ga. 236, 238 (2) (367 SE2d 786) (1988); see Interstate Life &c. Ins. Co. v. Brown, 146 Ga. App. 622, 623 (3) (247 SE2d 205) (1978) (“[n]o evidence of bad faith having been introduced, the .issue should not have been presented to the jury”) (citations and punctuation omitted).

        Williamson, supra, 220 Ga. at 325.

        Roland v. Ga. Farm Bureau &c., 265 Ga. 776, 778 (2) (462 SE2d 623) (1995) (doubtful question justified refusal to pay; directed verdict required); Grange Mut. Cas. Co. v. Law, 223 Ga. App. 748, 750 (2) (479 SE2d 357) (1996) (evidence of arson justified refusal to pay; j.n.o.v. required); Schoen v. Atlanta Cas. Co., 200 Ga. App. 109, 111 (407 SE2d 91) (1991) (close question justified refusal to pay; summary judgment affirmed); Ga. Intl. Life Ins. Co. v. Harden, 158 Ga. App. 450, 455 (2) (280 SE2d 863) (1981) (close question justified refusal to pay; bad faith award reversed).

       See OCGA § 33-4-6.

       (Citations omitted.) Consulting Constr. Corp. v. Edwards, 207 Ga. App. 296, 299 (3) (427 SE2d 789) (1993).

        Collins, supra, 258 Ga. at 238 (3); Equicor, Inc. v. Stamey, 216 Ga. App. 375, 378-379 (3) (454 SE2d 550) (1995); Nat. Fire Ins. Co. v. Thompson, 51 Ga. App. 625, 627 (3) (181 SE 101) (1935); Ins. Co. of North America v. Folds, 42 Ga. App. 306, 307 (4) (155 SE 782) (1930).

       OCGA § 7-4-2.


text:
    A98A0729.
    LOVELADY et al. v. ALFA MUTUAL INSURANCE COMPANY.
    (503 SE2d 349)
   Beasley, Judge.

On Friday, January 28, 1994, around mid-day, defendant Pinkiney James was driving his employer’s tractor-trailer northbound on Interstate 85 in heavy traffic when he swerved and his truck jackknifed and hit the concrete barrier separating the northbound and southbound lanes.

Plaintiffs Joyce and Emmett Lovelady, who were traveling in the second lane to the right of the barrier, collided with the jackknifed truck. They never saw the vehicle of the unidentified driver who allegedly caused James to swerve.

The Loveladys sued James, James’s employer, its insurer, and driver John Doe. They also served Alfa Mutual Insurance Company, their uninsured motorist carrier.

Alfa moved for summary judgment on the ground that the Loveladys were unable to describe how the collision occurred with regard to the unknown driver as required by OCGA § 33-7-11 (b) (2). The court granted summary judgment in Alfa’s favor. The Loveladys enumerate as error the application of the statute to preclude their uninsured motorist claim. As parties opposing summary judgment, they are given the benefit of all reasonable doubt, and the evidence and all inferences and factual conclusions arising from the evidence is construed most favorably toward them.

Alfa’s motion for summary judgment was based solely on the application of Georgia law. On appeal Alfa suggests that Georgia law may not apply but cites no Alabama law in support of its position and thus it is not brought to bear on the dispute.

As a matter of Georgia law, an unknown motorist is uninsured and insurers are required to provide coverage for accidents they cause when one of two circumstances is present. Either there must have been “actual physical contact” between the insured’s person or property and the vehicle of the unknown owner or operator or “the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” The issue is whether there is any evidence, including reasonable inferences, of the latter in this case. If not, plaintiffs’ insurer has shown the absence of an element of plaintiff’s case and is entitled to summary judgment.

There is clearly evidence that the negligence of an unknown driver, either alone or in concert with negligence of the tractor-trailer driver James, proximately caused the collision with plaintiff’s car. So the requirement for eyewitness testimony is met. The case turns on a construction of the statutory requirement of “the description by the claimant of how the occurrence occurred.”

James’ testimony by affidavit is that he was driving within the speed limit when, without warning, a white vehicle driven by an unknown person swerved into his lane of travel, causing him to brake and attempt to maneuver the tractor-trailer by steering to the left to avoid hitting the vehicle. The tractor-trailer jackknifed as a result and James lost control, according to him, until the tractor-trailer stopped after striking the median wall. This evidence is corroborated by the deposition testimony of Paul Bland, who was driving a tractor-trailer behind James. He testified that a six-wheeled truck swerved quickly and erratically into James’ lane for some unknown reason, close in front of James, and James braked and swerved to the left to avoid colliding with it. The truck did not slow down or stop. James’ vehicle jackknifed, kept moving to the left, and bounced off the median wall. Loveladys’ car hit it at its wheels and bounced. Up to the time of his deposition, Bland did not talk to James except at the scene.

The claimants described in their complaint the involvement of the unknown vehicle and alleged that the driver “negligently and carelessly changed lanes in front of [James] and left the scene of the subsequent collision.” They sought judgment against him as well as against the other defendants. Although neither plaintiff saw the unknown vehicle, one of their theories of recovery is based on the evidence that the incident occurred as a result of the actions of its driver in moving it into the path of James’ tractor-trailer. Thus their description of how the occurrence occurred satisfies the statutory provision for uninsured motorist coverage, as their description is corroborated by not one but two eyewitnesses.

In reaching this conclusion we considered the requirement in the context of its history, purpose, and wording. The sentence in the statute which is the focus here was added by the legislature “so as to provide for coverage for accidents caused by unknown motorists where the unknown motorist’s vehicle does not physically contact the insured’s vehicle.” Previously, relief for the injured parties could only be obtained if there was “actual physical contact.” The addition is in keeping with the State’s public policy of financially protecting innocent motorists from the negligence of those vehicle operators who cause injury or property damage and leave the scene unidentified.

In broadening the scope of coverage, the legislature did not use language indicating that the claimant must be an eyewitness to the unknown vehicle’s involvement. It did not designate personal testimony of claimant as the only allowable source of the description required. Nor did it indicate an intent to exclude coverage when there is positive evidence that the unknown operator of a vehicle was at fault. OCGA § 33-7-11 (b) (2) is tailored only to preclude mandated uninsured coverage when it would rest merely on the claimant’s own testimony and there was no actual physical contact. The intent is patently to guard against fraudulent claims. The construction reached here harmonizes with the Supreme Court’s approach in interpreting OCGA § 33-7-11 (b) (2), which was to broadly construe it so as to include corroboration by an interested, and not solely a disinterested, witness.

The infliction of injuries and property damage by drivers who leave without a trace is not a rare event, as demonstrated by the frequency of such cases in this Court. Some of the court’s opinions interpret and apply the sentence which governs this case, and none has been cited which militates against our conclusion. As stated previously, “[i]f the General Assembly had intended to require [eyewitness testimony by the claimant], it could have so specified.” The description need not be in the claimant’s testimony but may also be in the pleadings, as in this case, although merely “filing suit against John Doe does not constitute a ‘description by the claimant of how the occurrence occurred.’ ”

Atlanta Cas. Ins. Co. v. Crews, supra, supports the viability of the Loveladys’ claim and we use the same dictionary definition of the ordinary common word “description” as used in that case: “A ‘description’ is ‘a statement, account, or picture in words that describes; descriptive representation; the act or method of describing.’ ” Crews held that a “combination” of the plaintiff’s pleadings and testimony can provide an adequate “description” of the occurrence “within the meaning of OCGA § 33-7-11 (b) (2).” Applying the Supreme Court’s logic in Universal and this court’s logic in Hoffman, the court found “that if the legislature had intended that, as a condition precedent to recovery under an uninsured motorist endorsement, a plaintiff must have been able to tender in open court her own eyewitness testimony establishing the requisite causal connection between the John Doe driver and the accident, ‘it could have so specified.’” Thus* as in Crews, plaintiffs’ assertions of a “phantom” vehicle, corroborated by an eyewitness (in fact two), suffices. See OCGA § 1-3-1 (a) and (b).

One month after the court decided Crews it published Bell v. Coronet Ins. Co. The plaintiff lost on summary judgment granted to his uninsured motorist insurer because he did not claim that the collision was caused by an unknown vehicle. As repeated in Bell, “ ‘the “description” required by the claimant must at least include such an unknown vehicle . . . [and] such description [must] be corroborated in its material allegation, i.e., implication of the unidentified vehicle.’ ” In this instance the Loveladys in their complaint alternatively describe the collision as having been caused by an unknown driver’s negligently and carelessly changing lanes in front of James and leaving, and there is independent corroboration of this material allegation. Bell had fallen short by simply naming John Doe as an additional defendant and summarily alleging that his negligence contributed to Bell’s injuries; he did not describe how this came about.

Langford v. Royal Indem. Co., a non-precedential case insofar as this issue is concerned, involved application of an insurance policy which employed different language than contained in the statute. It clearly covered instances where a sole eyewitness, not plaintiff, could testify to facts supporting plaintiff’s averments in the complaint; corroboration of the nonparty eyewitness was not essential. As specified in Langford, that is not to say that the statute by its wording requires plaintiff to have been an eyewitness to the causation by the unidentified driver. Actually, neither the statute nor Langford’s policy required a firsthand account of the unknown driver’s involvement. But the court in Lahgford refused to so state with respect to the statute, being content merely to question a contrary reading of Hoffman and the legal validity of such a reading.

Langford did recognize that a pleading averment (the word “description” is used alternatively) “can be supported by other than direct testimony, as ‘the existence of a phantom vehicle may be established by the circumstances, opinion testimony and from “the jury’s common sense. . . .” ’ ” As in that case, plaintiff Emmett Lovelady testified that the truck suddenly swerved into his lane. Likewise, “it can be reasonably inferred on behalf of the party opposing the motion for summary judgment (appellant) that the truck [swerved] because it applied its brakes in a sudden emergency.” Thus, as in Langford, the tractor-trailer driver’s testimony is supported by some circumstantial evidence, as well as by direct evidence. Whether applying the statutory language or different contract language, circumstantial evidence could not be rejected.

Decided June 26, 1998.

Bernard L. Hoppenfeld, for appellants.

Dennis, Corry & Porter, Raymond J. Kurey, Parkerson, Shelfer & Groff, I. J. Parkerson, for appellee.

A fair construction of the statute is that the intent of the legislature is the preclusion of recovery for false claims, and not the refusal of relief to innocent motorists who describe in allegations and are able to prove that they were injured because of the actions of unidentified drivers. Were the latter intent attributed to the legislature, it would mean also that the legislature intended to allow defendants to simply blame an unknown driver for their own actions and thus insulate themselves from liability because the injured party did not see the unknown driver. It would also mean, as noted in Crews, that coverage would be arbitrarily precluded for “a victim injured so rapidly or so severely she could not testify as to how the occurrence happened, regardless of the number of competent witnesses available to testify as to the actual involvement of a John Doe driver and his phantom automobile.”

Judgment reversed.

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

        Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988); Dorsey v. Clark Atlanta Univ., 224 Ga. App. 787, 788 (1) (481 SE2d 848) (1997).

       OCGA § 33-7-11 (a) (1) and (b) (2).

       OCGA § 33-7-11 (b) (2).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       See, e.g., State Farm. &c. Ins. Co. v. Swetmon, 228 Ga. App. 538 (492 SE2d 678) (1997) (corroboration to officer from eyewitness); Meredith v. Nationwide Mut. Fire Ins. Co., 215 Ga. App. 286 (450 SE2d 322) (1994) (eyewitness corroboration adequate, need not corroborate every detail of claimant’s description); Universal Security Ins. Co. v. Lowery, 182 Ga. App. 125 (354 SE2d 840) (1987), aff’d 257 Ga. 363 (359 SE2d 898) (1987) (eyewitness corroboration by another claimant permitted). Cf. Murphy v. Ga. Gen. Ins. Co., 208 Ga. App. 501 (431 SE2d 147) (1993) (no corroborating eyewitness); State Farm Fire &c. Co. v. Guest, 203 Ga. App. 711 (417 SE2d 419) (1992) (nonprecedential: one judge focused on the sufficiency of corroborating eyewitness testimony; two judges decided case on alternative basis of actual physical contact); Scott v. Allstate Ins. Co., 200 Ga. App. 296 (407 SE2d 492) (1991) (no eyewitness corroboration of description).

       Ga. L. 1983, p. 938, § 1. Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48, 49 (1) (397 SE2d 466) (1990), which recognized this liberalization of statutorily-required uninsured motorist coverage.

        Hinton v. Interstate Guaranty Ins. Co., 267 Ga. 516, 517 (480 SE2d 842) (1997).

        See Atlanta Cas. Ins. Co., supra, 197 Ga. App. at 50 (3).

        Universal Security Ins. Co. v. Lowery, 257 Ga. 363 (359 SE2d 898) (1987).

       Id.

        Hoffman v. Doe, 191 Ga. App. 319, 320 (381 SE2d 546) (1989). What is more, plaintiff Hoffman expressly testified that she did not contend that the collision was caused by an unidentified vehicle. In Maxwell v. State Farm Mut. Aut. Ins. Co., 196 Ga. App. 545, 547 (2) (396 SE2d 291) (1990), the court read Hoffman as possibly giving a narrower construction to the statute than reached here but questioned the viability of such a construction if that was what Hoffman meant. In Maxwell, the insurance policy used different language than does the statute.

       Id. at 50 (3).

       Id.

       Id. at 50.

       The court in Crews pointed out that in Hoffman, the testimony of the plaintiff “tended to repudiate the John Doe averment contained within her pleadings.” Id. at 49.

       197 Ga. App. 211 (398 SE2d 242) (1990).

       Id. at 212-213.

       208 Ga. App. 128 (430 SE2d 98) (1993).

       Id. at 132-133.

       Id.

       Id. at 133.

        Carter v. Bennett, cited by the insurer, 220 Ga. App. 128 (469 SE2d 279) (1996), is not controlling precedent. Court of Appeals Rule 33 (a).

       Supra at 50.


author: Eldridge, Judge.

text:
    A98A1203.
    GABBARD v. THE STATE.
    (503 SE2d 347)
   Eldridge, Judge.

A Hall County jury found appellant Blevy Buster Gabbard guilty of two counts of aggravated child molestation and four counts of child molestation. Without challenging the sufficiency of the evidence that supports his conviction, Gabbard appeals, enumerating seven alleged errors of law. We affirm.

1. First, Gabbard contends that the trial court erred in finding that his initial statement to Hall County Sheriff’s investigator James Alexander was noncustodial and thus did not involve Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

Prior to trial, a hearing was held pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). Investigator Alexander testified that he received information from the mothers of the several victims regarding sexual acts that the children (ages four through six) reported Gabbard had perpetrated against them.

In response to this information, the investigator made arrangements to meet with the children and interview them. Three of the victims lived in Gabbard’s house with their mother, her boyfriend (Gabbard’s brother), and Gabbard. Accordingly, investigator Alexander went out to Gabbard’s house “basically to see if he would be willing to go stay somewhere else for a little while, for a night or two, while we proceeded with the investigation.” The officer testified that he had no intention of arresting Gabbard at this meeting; that he had not even talked to the children yet; and that it is not his practice to arrest a suspect before conducting an investigation into the allegations.

Once at Gabbard’s house, the investigator and Gabbard talked out in the shade of Gabbard’s yard. During the discussion, investigator Alexander asked Gabbard, “Buster, what’s going on with these kids? You know, they’ve said some things.” Gabbard replied, “Well, that boy [three-year-old victim Z. G.] got in bed with me and I woke up, he was trying to put my pecker up his butt and I told him to stop it, it was too big and it wouldn’t fit.” Investigator Alexander then arrested Gabbard for child molestation.

We do not find investigator Alexander’s arrest of appellant unreasonable in light of appellant’s statement which admitted essential elements of the offense. Nor do we find as error the trial court’s assessment that Gabbard’s statement was a voluntary, non-custodial statement which did not trigger the requirement that Miranda warnings be given. That Gabbard’s statement provided sufficient probable cause to arrest him does not inversely show that Gabbard was under arrest prior to making the statement so as to trigger Miranda.

2. Next Gabbard specifically enumerates as error that “the trial court abused its discretion in allowing the State to lead witness [T. G.] over objection from defense counsel.” However, the substance of Gabbard’s argument differs from the stated enumeration. Gabbard argues that the child/victim’s repeated assertions that she was “afraid” showed that she was “afraid” of Gabbard, which improperly put his character into evidence. “Enumerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration.” (Citation and punctuation omitted.) Loyd v. State, 202 Ga. App. 1, 2 (1) (c) (413 SE2d 222) (1991).

We have reviewed the transcript with regard to the alleged error as enumerated. No objection was raised as to the “leading” nature of the State’s questions to the child/victim. Failure to object to an alleged error precludes appellate review. Price v. State, 223 Ga. App. 807, 809 (478 SE2d 915) (1996).

3. Next Gabbard contends that the trial court erred in allowing to go out with the jury anatomical drawings used to illustrate each child/victim’s testimony. Gabbard contends that the trial court’s ruling was made over a valid “continuing witness” objection.

“In Georgia the 'continuing witness’ objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.” (Emphasis supplied.) Tibbs v. Tibbs, 257 Ga. 370, 371 (359 SE2d 674) (1987).

Here, the anatomical drawings in question are demonstrative evidence that serve only to illustrate testimony given by the witnesses. The drawings have no “testimonial” value in and of themselves. Thus, the drawings are not “written testimony,” as are depositions, interrogatories, written confessions, written dying declarations, and other documents that have been held subject to a “continuing witness” objection. “The reason given for not allowing [written testimonial documents] to be delivered to the jury is, that the testimony which they contain, if read and reread by the jury, would have an unfair advantage over oral testimony of the other side, by speaking to the jury more than once.” (Emphasis supplied.) Shedden v. Stiles, 121 Ga. 637, 640 (4) (49 SE 719) (1905).

Accordingly, we find that items of demonstrative evidence, such as the anatomical drawings herein, that are not in themselves testimony, but instead are “tools to explain” testimony given at trial, are not subject to a “continuing witness” objection. See Parks v. State, 199 Ga. App. 736, 738-739 (406 SE2d 229) (1991). There was no error.

4. Gabbard’s remaining four enumerations of error each challenge an aspect of the trial court’s charge to the jury. We have reviewed the jury charge in relation to the alleged errors and find Gabbard’s contentions meritless.

Gabbard challenges State Requests to Charge Nos. 7, 8, and 9, which each informs the jury of factors that are not elements of the child molestation offenses against Gabbard, i.e., physical injury, the victim as clothed or unclothed, and consent. Thus, the trial court charged the jury that the State did not have to prove these factors. Gabbard’s claim of error, however, is that “the State produced no evidence” as to these factors, and thus the jury charges were “not adjusted to the evidence.” This contention misses the point. It is precisely because the State did not produce evidence as to these factors that it became relevant to charge the jury that the State was not required to produce such evidence in order to warrant conviction.

Decided June 26, 1998.

Germano, Kimmey & Cheatwood, C. David Turk III, for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

Finally, Gabbard claims error in the trial court’s charge to the jury that the State may prove that an offense was committed in any one of the ways as alleged in the indictment. Gabbard contends that since the indictment alleged each offense was committed in only one way, this charge was confusing. However, the charge is a correct statement of the law. See, e.g., McGee v. State, 205 Ga. App. 722, 724 (423 SE2d 666) (1992). Moreover, if the trial court charged the jury that the State must prove the crime in one of the ways alleged in the indictment, and the indictment alleged that the crime was committed in one way, then that was the way the State was required to prove the offense under the trial court’s instruction. There was no charging error here.

Judgment affirmed.

McMurray, P. J, and Blackburn, J., concur.

       The transcript shows that the child/victim was “afraid” to testify and tell what had happened, not that she was afraid of Gabbard.


text:
    A98A1317.
    In the Interest of M. O. et al., children.
    (503 SE2d 362)
   Eldridge, Judge.

Appellant Djonga Y’Ometete B. challenges the DeKalb County Juvenile Court’s determination that his three children are deprived. We affirm.

The evidence, as presented during an October 1995 adjudicatory hearing and viewed in the light most favorable to the trial court’s judgment, shows the following: in September 1995, the appellant came to Georgia from Zaire, Africa, with his three children, M. O., P. S. and C. O. None of the parties speaks English; the children speak Swahili and the appellant speaks French.

Within a week of their arrival, the appellant entered the bedroom of M. O., who was 13 years old, in the middle of the night and demanded sexual intercourse. M. O. also claimed that the appellant had made similar sexual advances while they lived in Zaire and previously during their brief stay in Georgia. However, when she refused his advances on this occasion, he threatened her with a knife and ordered her to take off her clothes. She resisted and was, in the process, “pierced” with the knife. The appellant left the room briefly and she attempted to escape the apartment. The appellant confronted M. O. and pushed her down, injuring her knee. Still, she ran from the apartment and asked a neighbor to call the police. When the police arrived, the appellant told them that there was nothing wrong and prevented the child from speaking to the officers. The next day, the appellant asked M. O. and her brother, P. S., for forgiveness and told them that this was a family matter that should not be discussed outside the family.

It is unclear from the record on appeal exactly how the DeKalb County Department of Family & Children Services (“DFACS”) eventually gained custody of the children. The transcript of the October 1995 adjudicatory hearing shows that two translators were provided — a French-speaking interpreter for the appellant and a Swahili-speaking interpreter for the children. In addition, the trial court allowed a French-speaking friend of the appellant to remain in the courtroom during the proceedings to assist the appellant as needed.

During the hearing, M. O. testified to the facts as presented above. However, following the appellant’s cross-examination of M. O., appellant’s counsel requested from the court “two minutes in private” with his client. When the interpreter asked if he was needed, counsel responded that “It wouldn’t hurt if I had somebody to facilitate a quick communication.”

Minutes later, counsel announced that he had no further questions for the witness. Once M. O. was excused as a witness, the following colloquy took place: Defense Counsel: “These are hard cases. We’ve talked about, my client and I have talked about this case and we see no further point in trying to defend at this stage and would stipulate that the Court certainly has enough evidence to be able to find deprivation and they are welcome to bring witnesses up if they want to, but we would stipulate at this stage.” Court: “Alright, well, [Prosecutor]? There may be some reasons why you want to continue, to get some facts on the record, and what I hear you (referring to Defense Counsel) saying is that you are not going to put up a case? Is that correct?” Defense Counsel: “That’s correct.” When the State inquired whether appellant was stipulating to the facts as presented in the deprivation petition, the following transpired: Defense Counsel: “I think that there is nothing we can do at this stage and I don’t see any prospects of, um, of negating that other. If we had a way, I would do it.” Court: “Well let me ask you this. Would you be prepared to say that based upon this testimony and upon the petition, that if further facts were shown, that they would support the allegations contained in both petitions?” Defense Counsel: “Yes, Your Honor.” State: “I don’t see any point in going on with that.” The children’s advocate also stated on the record that, given the appellant’s stipulation, she saw no need to present further evidence of deprivation.

Following this exchange, the trial court found that there was clear and convincing evidence that the children were deprived and in need of protection by the State. Accordingly, the court gave temporary custody to DFACS, who placed the children in foster care.

At a dispositional hearing held two months later, the appellant, who was assisted by an interpreter and new counsel, asserted for the first time that he did not understand the meaning of a “stipulation” and, therefore, was denied the opportunity to defend himself against M. O.’s accusations during the prior adjudication hearing. However, he admitted that his counsel told him he would have a chance to defend himself during any possible future criminal proceedings and, therefore, they jointly decided not to put up any evidence during the deprivation hearing. The trial court stated that the prior adjudication had been concluded and would not be reconsidered at that time.

The appellant subsequently filed a motion for reconsideration or, alternatively, a new trial; the motion was denied. This appeal followed. Held:

1. In his first enumeration of error, the appellant asserts that the trial court erred in not ensuring that he knew what a “stipulation” was and what facts he was stipulating to. Inherently, this assertion seems to indicate that the court’s efforts in providing two interpreters and allowing the assistance of the appellant’s friend somehow was inadequate to protect the appellant’s interests. However, the appellant fails to indicate how the court could have been able to “insure” that a party understands the proceedings beyond providing the protections available in this case. Accordingly, we find no merit to this enumeration.

Further, the transcripts of both the adjudicatory and dispositional hearings clearly show that the appellant’s counsel consulted with him prior to making such stipulation. If the appellant was unclear as to the meaning or effect of a “stipulation,” he has failed to show any evidence of such misunderstanding in the record beyond his belated assertion at the subsequent dispositional hearing. See Court of Appeals Rule 27 (c) (3) (i). Therefore, the appellant is bound to the stipulation.

In a civil proceeding, “[i]t is well settled that clients are bound by statements of their attorneys made in open court” when such statements are made in the client’s presence and are not denied by the client. (Citations omitted.) N. A. A. C. P. v. Pye, 96 Ga. App. 685, 686 (101 SE2d 609) (1957). See also Sunn v. Mercury Marine, 166 Ga. App. 567, 570 (2) (305 SE2d 6) (1983); McCoy v. McSorley, 119 Ga. App. 603, 604 (2) (168 SE2d 202) (1969); cf. 134 Baker Street v. State, 172 Ga. App. 738, 741 (5) (324 SE2d 575) (1984) (limiting the effect of such statements in a criminal case). This is particularly true when, as in this case, the statements are “'made for the express purpose of dispensing with formal proof.” (Citations and punctuation omitted; emphasis in original.) Whatley v. State, 189 Ga. App. 173, 175 (375 SE2d 245) (1988); see also Jabaley v. Jabaley, 208 Ga. App. 179 (1) (430 SE2d 119) (1993).

In this case, the stipulation was an admission in judicio that there was sufficient evidence presented during the hearing to support a finding that the children were deprived, even if the appellant had presented a comprehensive defense. See OCGA § 15-11-33 (b) (requiring the evidence of deprivation to be “clear and convincing” before a court may transfer custody of a child); see also OCGA §§ 15-11-2 (8); 15-11-34 (a); In re Suggs, 249 Ga. 365 (291 SE2d 233) (1982). Such admission in judicio is conclusive and “binding upon the party and estops the party from denying the admission or introducing any evidence to controvert such admission, even if the admission is not true. . . . Failure to comprehend the legal effect of making an admission provides no excuse for the maker; ‘ignorance of the law excuses no one.’ ” (Citations and punctuation omitted.) Jabaley v. Jabaley, supra at 179-180; OCGA § 1-3-6.

In addition, “[t]he strong presumption arises from an attorney’s appearance in court on behalf of a litigant that he is authorized to appear and to act for that party. ... In absence of express restrictions on the attorney’s authority in the contract of employment, the authority is plenary. Acts of an attorney on behalf of a party cannot be questioned unless wholly unauthorized and then only if the aggrieved party is not guilty of unreasonable delay in acting to correct the improper acts after notice or knowledge of them.” (Citations omitted; emphasis in original.) McCoy v. McSorley, supra at 604 (2). Accordingly, under the circumstances of this case, there was no error.

Decided June 26, 1998.

Hurl R. Taylor, Jr., for appellant.

Thurbert E. Baker, Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Nardone & Read, Robert G. Nardone, Dorothy V. Murphy, for appellees.

2. (a) In his second enumeration, the appellant contends that the court erred in denying his motion for new trial without conducting a hearing or setting forth reasons for its denial in the order. See In the Interest of T. A. W., 265 Ga. 106, 107 (454 SE2d 134) (1995) (holding that juvenile courts, as courts of record, are authorized to grant new trials). However, pursuant to our decision in Division 1, supra, the appellant has not stated grounds for a new trial under OCGA § 5-5-1 et seq. Further, the trial court’s decision to deny a motion for new trial will not be reversed absent an abuse of discretion. OCGA § 5-5-25. We find no abuse of discretion.

(b) The appellant also asserts that his motion for new trial could be construed as a modification petition under OCGA § 15-11-42. Without deciding whether the appellant’s motion reasonably could be construed in this manner, particularly in light of the “clear and concise language” requirement of OCGA § 15-11-42 (c), we find that the appellant did not present grounds for such modification.

In his motion for new trial, the appellant asserted that he did not “understand” the meaning or significance of the stipulation entered on his behalf and, therefore, he was entitled to another opportunity to present evidence on the merits of this case. We rejected this argument in Division 1, supra, as a ground for reversal of the court’s order and, further, find that such alleged lack of understanding does not present grounds for a modification based upon “mistake” under OCGA § 15-11-42 (a) (1) as a matter of law. See generally Robbins v. Nat. Bank of Ga., 241 Ga. 538, 543-544 (246 SE2d 660) (1978) (holding that a mistake by a party as to the legal effect of an agreement or act is not grounds for setting aside a judgment under OCGA § 9-11-60 (d) (2)). Accordingly, there was no harm in the trial court’s failure to conduct a hearing on the appellant’s motion.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       The mother of M. O. and R S. and the mother of C. O. both live in Zaire, Africa, and were notified of these proceedings by certified mail. However, the legal relationship between the appellant and the children is unclear. According to the appellant’s brief, C. O. is the appellant’s biological child, while M. O. and P. S. are his sister-in-law and brother-in-law, respectively. In other words, M. O. and P. S. are the siblings of his wife, C. O.’s mother. This information apparently was not discovered until after the October 1995 adjudication of deprivation. Accordingly, this Court will not address this issue herein. However, the apparent confusion regarding the appellant’s legal relationship to the children may be relevant, if not dispositive, in future reunification efforts or permanent custody dispositions. Further complicating this matter is the potential effect of the appellant’s subsequent incarceration on his immigration status as a political refugee and, therefore, the impact on any future permanent
        adjudication of Ms parental or custodial rights, as well as the permanent custody status of the cMldren.

       Although the appellant understandably expressed extreme concern that the stipulations might be used to “condemn” him in a future criminal action, this Court recognizes that the trial court, in accepting such stipulation, expressly found that the appellant was not admitting that the facts as alleged by M. O. were true.