text:
    75271.
    COLLINS v. DAVIS.
    (366 SE2d 769)
   Birdsong, Chief Judge.

This is an appeal from a defendant’s verdict in a rear-end collision personal injury suit. The evidence was disputed as to whether the lead car (in which the plaintiff Amos Collins was a passenger) was at fault for stopping suddenly, whether other cars stopping in front of the lead car caused that car to stop, whether the brake lights of the lead car failed to operate or simply were not seen by defendant Davis in the car behind; and whether Davis might have been following too closely. Held:

1. In seven enumerations, plaintiff-appellant cites errors involving the repeated admission, over motion in limine and objection and motion for mistrial throughout trial, of evidence of appellant’s own no-fault insurance. The defendant-appellee contended below that the fact appellant had never made a claim under his own no-fault insurance was relevant to appellant’s claim for lost wages. Appellant in response contended he did not make a claim because he did not know he could and that in fact he has made a lost wages “claim” by suing his insurer.

On appeal, appellant cites Goins v. Glisson, 163 Ga. App. 290, 292 (292 SE2d 917) and Moore v. Price, 158 Ga. App. 566 (281 SE2d 269), in that generally liability or no-fault insurance coverage of a litigant is not admissible in evidence and unnecessary disclosure of such facts is ground for a mistrial or reversal. The appellee distinguishes those cases on the basis that the injection of insurance evidence in those cases was irrelevant and prejudicial to those complainants’ “non-economic” claims for pain and suffering, whereas here the claim is for economic loss (lost wages), as to which his failure to make a claim for such economic loss is relevant.

We reject the appellee’s contention that the subsequent admission of related evidence by the appellant rendered appellee’s injection of it harmless, under P.H.L. Dev. Corp. v. Sammy Garrison Constr., 171 Ga. App. 393 (319 SE2d 543) and Bynum v. Standard (Chevron) Oil Co., 157 Ga. App. 819 (278 SE2d 669). These cases are inapposite, standing for the proposition that subsequent admission of criticized evidence without objection renders any error harmless. The appellant objected strenuously to this evidence in limine and whenever the appellee injected it. Appellant’s later mention of it was an attempt to mitigate the harm; we decline to hold that by attempting to diminish its effect he waived any objection to it or rendered its error harmless.

The trial court erred in admitting this evidence. We have repeatedly adhered to the rule that evidence of insurance coverage is so prejudicial by nature that it should not be admitted unless it is clearly relevant and, as with any generally prejudicial evidence, in determining its admissibility, the trial court should not admit it unless its relevance outweighs its prejudice. The prejudice lies in the infectious nature of collateral source evidence, contaminating as it does the issue of loss with the issues of injury and liability. See Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 383 (277 SE2d 753). Such evidence is prejudicial because by its nature its effect is not self-limiting, but it laps over into other considerations. It hardly matters whose insurance coverage is presented to the jury, plaintiff’s or defendant’s, or whether it is no-fault or liability. See Moore, supra, p. 568. In Goins, supra and Moore, the no-fault insurance evidence was not rejected merely on the basis that those plaintiffs were or were not seeking “non-economic” loss, i.e., pain and suffering, but it was rejected because of its inherent prejudice; that the appellant here was seeking to recover for economic loss (lost wages) does not, as appellee contends, make evidence of appellant’s failure to file a claim under his own insurance more relevant, but only more poisonous.

It is true that evidence is relevant which logically tends to prove or disprove any material fact at issue, but the evidence that appellant did not make an insurance claim does not logically tend to prove any fact except that he did not make a claim. See Charter Medical-Fayette County v. Health Planning Agency, 181 Ga. App. 184 (351 SE2d 547). It does not logically prove he had no lost wages, any more than filing a claim would prove he did have lost wages. Failure to file an insurance claim is not an admission that the party has no loss. There might be any number of reasons he did not make a claim; to conclude or assume he made no claim only because he had no lost wages is only a conclusion or assumption, and one supported by no other indication. It is speculation only, not governed by logic but by suspicion. But even assuming by double inference the evidence had some slight relevance to the question of loss, its prejudice far outweighs such slight relevance.

The appellee cites three cases to prove this evidence was relevant and admissible and argues we have thereby relaxed the rule against admissibility. These are U-Haul Co. of Western Ga. v. Ford, 171 Ga. App. 744 (320 SE2d 868); Ideal Pool Corp., supra; and Bennett v. Southern R. Co., 117 Ga. App. 414 (160 SE2d 677). However, we resist any inference that a ruling in a particular case indicates a loosening of this general rule. In U-Haul there was no direct evidence of insurance and the evidence was held relevant. Both Ideal Pool Corp. and Bennett stand for the general rule against admissibility; what made the evidence admissible in those cases was its direct relevance to prove a prior inconsistent statement directly impeaching the party’s present claim of liability. In Ideal Pool Corp., direct mention of the fact of the insurance claim was excised, admitting only the inconsistent statement to “someone.” In this case, appellant’s failure to make a lost wages claim is not an admission that he had none and does not constitute an inconsistent statement or action.

The appellee contends the verdict for defendant rendered any error harmless, since the evidence of insurance went only to the issue of damages, citing Johnson v. Bryant, 178 Ga. App. 327, 329 (343 SE2d 397); Fritz v. Eller, 153 Ga. App. 300 (265 SE2d 72); Lewyn v. Morris, 135 Ga. App. 289, 291 (217 SE2d 642). Those cases did not involve insurance evidence. Fritz and Lewyn involved mere errors, not prejudicial errors. Johnson involved prejudicial error which was held not harmless. The rule that errors going only to the question of damages may be rendered harmless by a verdict for defendant is grounded on the supposition that the jury, by deciding defendant was not liable for negligence, necessarily never reached a consideration of damages. Pa tillo v. Thompson, 106 Ga. App. 808, 814 (b) (128 SE2d 656). But the irrelevant injection of insurance evidence is not merely an error in a subject matter which the jury never reached. By implying there was no loss, or that the party had a source of insurance and therefore should not have sued (or should have been sued), it infects the question of liability. Since it is inherently prejudicial, we cannot assume the jury never considered the evidence because it first reached an independent finding of liability. In view of the highly disputed and uncertain nature of the evidence relating to negligence in this case, it is impossible to say that the errors in admitting this insurance evidence did not affect the verdict (Goins, supra, p. 292), since the jury, having learned the appellant had his own insurance and failed to take advantage of it, ultimately found the appellee not liable. See Thigpen v. Batts, 199 Ga. 161 (33 SE2d 424).

The jury charge advising the jury “not to consider insurance” did not cure the prejudice in this case but only served to emphasize what should not have been injected in the first place, and was therefore error. See Goins, supra, p. 291. The trial court cannot repeatedly admit prejudicial evidence for the jury’s consideration and then attempt to neutralize the error or excuse the evidence by advising the jury not to consider it. In Moore, supra, we held it error to charge that the plaintiff would not be entitled to recover from his own no-fault insurer, because the only reason to give such a charge would be to get the fact of insurance before the jury. Similarly, we would indirectly sanction the admission of insurance evidence if in this or any case we say that giving a charge “not to consider insurance” is not only permissible but moreover excuses the repeated admission of prejudicial and irrelevant insurance evidence. If the evidence of failure to make a claim had been relevant, a charge mitigating the prejudice would be helpful, but not where the evidence should not have been admitted at all. In Cannon v. Rithmire, 156 Ga. App. 360 (1) (274 SE2d 746), we held a charge that “under the no-fault law” the plaintiff could not recover medical expenses, did not, contrary to appellant-plaintiffs, imply the plaintiffs had liability insurance; however, Cannon (and see Walls v. Parker, 146 Ga. App. 882 (247 SE2d 556)) was decided before our decisions in Moore and Goins, in which we held such a charge to be error. We conclude from this that the general rule against admitting evidence of insurance or unnecessarily referring to it in a charge has not relaxed but has strengthened. The judgment below is reversed because of these errors, because in view of the disputed evidence, the verdict against the prejudiced party makes it impossible to say the jury was unaffected.

2. Likewise, the trial court erred in allowing defendant-appellee to deliberately continue a line of questioning of plaintiff’s employer so as to reveal insurance benefits through his employment relating to this accident. This insurance evidence was not relevant; it was prejudicial, and therefore harmful in view of the verdict relieving the defendant of liability.

3. In enumerations 7 and 8, appellant argues the trial court erred in refusing to allow him to testify in rebuttal as to his treatment by Dr. Antonio Fernandez. Fernandez, who was introduced by appellee to testify to plaintiff-appellant’s lack of injury caused by this collision, testified he did not know how plaintiff was referred to him. In rebuttal, plaintiff wanted to show the defendant’s insurer sent plaintiff to Fernandez, and paid him $300 for an examination lasting nine minutes, thus showing Fernandez was not a disinterested witness as he had implied. The trial court refused this rebuttal, apparently on grounds the injection of evidence that the defendant had insurance was prejudicial and irrelevant. We think this evidence is more relevant to prove an impeachment of the witness, than was evidence of plaintiff’s failure to file a claim on his own insurance relevant to prove he had no lost wages, and certainly it was no more prejudicial. In any event, in view of the reversal in Divisions 1 and 2, we find it unnecessary to address this enumeration in full.

4. Appellant’s remaining enumerations, 2 and 12, are abandoned for failure to argue and present citations of authority. See Brown v. Phillips, 178 Ga. App. 316 (342 SE2d 786).

Judgment reversed.

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

On Motion for Rehearing.

Appellee seeks a rehearing by strenuously urging that the record is full of evidence that the appellant had no lost wages, and therefore, that we erred in saying “that the assertion that appellant had no lost wages is ‘. . . one supported by no other indication’ than the evidence showing that appellant made no claim for lost wages against his no-fault carrier.” (Emphasis supplied.)

Aside from the fact that whether there was any evidence of lost wages is not the pertinent issue in this appeal, appellee’s assertion quoted above is a misstatement and misunderstanding of the clear ruling. We said, referring to appellant’s failure to make a claim on his own insurance for lost wages, that “to conclude or assume he made no claim only because he had no lost wages is only a conclusion or assumption, and one supported by no other indication.” (Emphasis supplied.)

Motion for rehearing denied.

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

Decided January 5, 1988

Rehearing denied March 4, 1988.

0. Wendell Horne III, for appellant.

Jerry A. Lumley, for appellee.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Beasley, Judge,

license: Public Domain

text:
    75441.
    WILLIS v. THE STATE.
    (366 SE2d 778)
   McMurray, Presiding Judge.

Appellant’s motion for out-of-time appeal was denied on February 27, 1987. On April 2, 1987, appellant requested, by motion, an extension of time to prepare his appeal. Appellant filed a notice of appeal on May 6, 1987. Appellee moved to dismiss appellant’s appeal “on the basis that he failed to file a notice of appeal within 30 days from the date of the entering of the Judgment appealed therefrom and further failed to file said appeal within 30 days from any extension which could have been granted in said case.” On June 25, 1987, the superior court granted appellee’s motion to dismiss appellant’s appeal. Held:

OCGA § 5-6-38 requires that a notice of appeal be filed “within 30 days after entry of the appealable decision or judgment complained of . . .” (No motion of a type which would toll the running of the 30-day period was filed in the case sub judice.) OCGA § 5-6-39 (c) permits only one extension of time for filing of a notice of appeal “and the extension shall not exceed the time otherwise allowed for the filing of the notices initially.” Accordingly, the superior court did not err in dismissing the underlying appeal from its order of February 27, 1987. See OCGA § 5-6-48 (b) (1); Hester v. State, 242 Ga. 173 (249 SE2d 547); Mayo v. State, 148 Ga. App. 213 (251 SE2d 80). Accord Hamby v. State, 162 Ga. App. 348 (291 SE2d 724).

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Banke, P. J., Carley, Sognier and Benham, JJ., concur. Pope and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent because the facts in the record show that defendant was effectively foreclosed from consideration on the merits of his motions and so, from his right to appeal. He has wended a long and treacherous road to this court. Although technically he appeals from the trial court’s June 25 order purporting to dismiss his appeal from the February 27 order, he actually seeks to appeal from the February 27 order which denied his motion for out-of-time appeal. That denial, he maintains, was in error so that he should be permitted to appeal from his conviction.

Defendant was convicted November 21, 1985 of two counts of aggravated assault, for which he received two 10-year, consecutive sentences. He asserted before the trial court that he had asked his retained counsel to appeal but it was not done, so when he was transferred to GDCC on December 10 he asked legal aid on December 19 to do so. Although a notice could have been timely filed then, it was not. Instead, another legal aid attorney on January 15, 1986 filed a motion for out-of-time appeal and for appointment of counsel, based on employed counsel’s failure and/or refusal to file an appeal. Defendant was transferred to ACMI on March 19, 1986, two months after the motion was filed, and it languished.

On October 17, 1986, defendant filed a pro se indigent’s petition for writ of mandamus against the clerk, for a trial transcript in contemplation of habeas corpus. The petition repeatedly shows his address as ACMI, and all subsequent filings by defendant show this address as well. This petition was given a motions docket number, and the clerk by counsel responded that no transcript had been filed and that a motion for out-of-time appeal from the conviction had been filed.

Defendant as petitioner replied twice to this response, and an order was entered on December 31 dismissing the petition and setting the motion for out-of-time appeal for February 20, 1987. A copy of this order was sent by the state to defendant at ACMI on January 19, telling him to file an affidavit. Defendant complied by filing an affidavit on January 29, stating that there was no transcript, that he needed one, that he requested his trial attorney to appeal but that since the attorney failed, he filed a motion for out-of-time appeal and for counsel via legal aid. He further swore that he needed the transcript for appeal and, if he was not permitted to appeal, then for habeas corpus. He set out his grounds for habeas corpus and reserved others which might appear from review of the transcript. No counter-affidavit was filed.

On Friday, February 27, 1987, over a year after the motion for out-of-time appeal was filed, the court denied it but granted a trial transcript, apparently for habeas corpus purposes. A copy of this order, but with the wrong case number, was sent by the State’s attorney, not by the clerk. Where it was sent is not shown by the record. Then on March 12, again the state and not the clerk sent a corrected copy of the order to defendant, addressing it to GDCC even though defendant’s address on court records was ACMI. The envelope was received in Jackson on March 16, forwarded to ACMI on March 20, and received by defendant on March 23.

Believing that he had only three days to file a notice of appeal from the order (although he had seven days since the thirtieth day would be Sunday, March 29, giving him until March 30), he filed a motion for extension of time to file an appeal from the February 27 order. Apparently, as acknowledged by the state, the first motion was filed March 24, which would have been timely but had the wrong number because the wrong number appeared on the order, so the corrected motion (dated March 30) was not filed until April 2. Appellant sought an extension because of the late receipt of the February 27 order, the wrong number on the order, and still the lack of a trial transcript.

If this motion had been considered timely because of the March 24 effort, the court could have granted an extension to April 28. The motion was never ruled on, so defendant filed a notice of appeal on May 5 from the February 27 order, in forma pauperis, and simultaneously an “application for certificate of probable cause to appeal,” in the nature of an appellate brief.

The state on June 9 moved to dismiss the appeal because the notice of appeal from the February 27 order was not timely, and it further moved to supplement the record with an affidavit of trial counsel also dated June 9 concerning the original discussions regarding the filing of an appeal. Defendant responded. On June 25 an order was entered dismissing the appeal from the February 27 order, citing OCGA §§ 5-6-38 and 5-6-39 and Associated Distrib. v. Willard, 242 Ga. 247 (248 SE2d 645) (1978), and permitting the record to be supplemented as requested.

The criminal trial transcript was sent to defendant by the clerk the next day, and on July 1 defendant filed a timely notice of appeal from the June 25 order, contending that the court erred in denying the out-of-time appeal from the February 27 order and in denying appointment of counsel.

Appellant points out on appeal that the “court below did not as required by law, send to appellant a copy of its order of February 26 [entered February 27].” OCGA § 15-6-21 (c) states that when a judge decides a motion, “it shall be the duty of the judge to file his decision with the clerk of the court in which the case [is] pending and to notify the attorney or attorneys of the losing party of his decision.” Obviously, if a party is proceeding pro se, the notice would have to be to him rather than to an attorney.

The court never notified defendant of its decision of February 27, nor did defendant ever have reasonably timely and accurate actual notice. The jurisdictional requirement in OCGA § 5-6-38 (a) that “[a] notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of’ presumes a fulfillment of the law insofar as notice of the decision is concerned. Fulfillment of the duty in OCGA § 15-6-21 (c) would result in timely notice. The two statutes work hand in hand. A losing party cannot be expected to file a notice of appeal within 30 days if he does not have notice of the decision. The misdirected copy sent by the state did not serve the purpose, and what is more, the first one had the wrong case number. Even defendant’s attempt to extend the time was ignored until it was too late; it could have been extended to April 28 but it was never ruled on.

Decided February 15, 1988

Rehearing denied March 4, 1988

Walter Willis, pro se.

Don E. Snow, for appellee.

The procedural facts mandate a reversal of the order of June 26 and the entry of a new order on defendant’s motion for an out-of-time appeal, with compliance with OCGA § 15-6-21 (c) so that defendant has a timely opportunity to appeal. Cambron v. Canal Ins. Co., 246 Ga. 147, 148 (1) (269 SE2d 426) (1980). Compare Barthell v. State, 174 Ga. App. 459 (330 SE2d 180) (1985). See Jefferson-Pilot Fire &c. Co. v. Combs, 166 Ga. App. 274 (304 SE2d 448) (1983), and the dissent in Crawford v. Kroger Co., 183 Ga. App. 836, 837 (360 SE2d 274) (1987).

The case cited by the trial court, Associated Distrib., supra, quotes and follows Jordan v. Caldwell, 229 Ga. 343, 344 (191 SE2d 530) (1972). Both were civil cases. Associated Distrib. relates to an attempt to extend the time when the court had lost jurisdiction to do so, which is not the issue here. Besides, it was overruled in Cambron, supra at 148-149, to the extent that it is contrary.

In Jordan, appellant’s counsel was promptly notified by receipt of the court’s judgment but not of the date of its entry. The burden “to determine when” the judgment was filed was held to be upon that losing party, who wished to appeal. The decision is thus not controlling, because the pro se defendant in this criminal case was not timely notified that the decision was made and the order filed. Moreover, Jordan was also overruled to the extent that Cambron held otherwise.

The duty to notify is the court’s, as OCGA § 15-6-21 (c) provides. Then the losing party, having been informed that the decision has been made and is adverse, must ascertain when the decision was entered if he wishes to invoke the procedure for appeal. Otherwise he will not be able to comply with it. Casting upon both parties the duty to constantly check with the clerk to determine whether a decision has been made has no basis in law or in practical common sense.

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


author: Sognier, Judge.

text:
    75524.
    ORKIN EXTERMINATING COMPANY, INC. v. DAWN FOOD PRODUCTS.
    (366 SE2d 792)
   Sognier, Judge.

Belinda Thomas and her husband brought suit against William Anderson and his employer, Orkin Exterminating Company (Orkin), seeking damages for injuries incurred when Belinda Thomas, while at her place of employment, fell into hot oil which had spilled from a portable doughnut fryer dislodged by Anderson, who was in the process of performing his pest control duties at Thomas’ work place. Orkin and Anderson filed a third party complaint against Dawn Food Products t/a Dawn Equipment Manufacturing Company, the manufacturer of the portable doughnut fryer. In Count I of the third-party complaint, Orkin and Anderson alleged Dawn Food was negligent in the design, testing and manufacture of the doughnut fryer. In Count II, it was contended Dawn Food was strictly liable to Anderson for the defective nature of the fryer. The trial court granted summary judgment in favor of Dawn Food as to the third-party complaint and Orkin appeals.

1. In its first enumeration, appellant asserts as error the trial court’s ruling in favor of appellee on the issue of strict liability. However, since Anderson, the sole third-party plaintiff alleging the theory of strict liability, is not a party to this appeal, this enumeration is not properly before us. See Smith v. Gwinnett County, 182 Ga. App. 875 (357 SE2d 316) (1987); Cooper Motor Lines v. B. C. Truck Lines, 215 Ga. 195 (1) (109 SE2d 689) (1959). Further, we note that OCGA § 51-1-11 (b) (1) holds a manufacturer liable only as “to any natural person” using the product. See also Mike Bajalia, Inc. v. Amos &c. Co., 142 Ga. App. 225, 227 (235 SE2d 664) (1977).

2. In its second enumeration, appellant contends the trial court erroneously failed to consider evidence regarding subsequent remedial measures taken to prevent the doughnut fryer from again being dislodged. Appellant’s extensive research into the admissibility in product liability cases of evidence of subsequent remedial measures throughout the United States is unavailing under our holding in Division 1. And, as appellant itself notes, evidence of subsequent remedial measures is inadmissible to prove negligence. Brooks v. Cellin Mfg. Co., 251 Ga. 395, 396-397 (306 SE2d 657) (1983). Thus, no error is presented by this enumeration.

3. Appellant contends the trial court erred by granting summary judgment in favor of appellee on Count I of its third-party complaint, alleging appellee was negligent in the design, testing and manufacture of the portable doughnut fryer. Appellant asserts that because the evidence conflicted over the ease with which the doughnut fryer could be moved on the table where it was situated, questions of fact exist whether appellee was negligent by designing the doughnut fryer without safety features preventing the fryer from being moved, by manufacturing the fryer without those safety features, and by failing to test the fryer so as to reveal its defective condition.

“In the subject product-design case, only semantics distinguishes the cause of action for negligence and a cause of action pursuant to OCGA § 51-1-11.” Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 848 (3) (321 SE2d 353) (1984). Thus, in dealing with appellant’s allegations of negligence, we will be guided, as was this court in Poppell v. Waters, 126 Ga. App. 385, 387 (1) (190 SE2d 815) (1972), by the principles which have been established generally in product liability cases. Thus, “ ‘ “[i]f a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law’s demands. We have not yet reached the state where a manufacturer is under the duty of making a machine accident proof or foolproof . . . (H)e is under no duty to guard against injury from a patent péril or from a source manifestly dangerous.” ’ [Cits.]” Id. at 387-388 (1). See also Stodghill v. Fiat-Allis Constr. Machinery, 163 Ga. App. 811, 813-814 (295 SE2d 183) (1982). “ ‘ “A manufacturer or a seller does not have the status of an insurer as respects products design. Since it is patent that virtually any article, of whatever type or design, is capable of producing injury when put to particular uses or misuses, a manufacturer has no duty so to design his product as to render it wholly incapable of producing injury. . . .” ’ ” Barnes v. Harley-Davidson Motor Co., 182 Ga. App. 778, 781 (357 SE2d 127) (1987).

The evidence in the case sub judice reveals that appellant’s employee, Anderson, was moving a drying rack adjacent to the table on which the portable doughnut fryer in question here was situated when some part of the fryer became hooked on the drying rack. The force used by Anderson to move the drying rack was sufficient to dislodge the doughnut fryer and pull it across the table where it had been placed for at least three years prior to the accident. Two of the fryer’s four legs slid off the table, spilling onto the floor the hot oil in the fryer into which Belinda Thomas fell. The evidence is uncontroverted that in the three years prior to the subject accident, the portable doughnut fryer had functioned properly during its normal use and had neither moved nor been dislodged in any way during that normal use. Further, although questions of fact exist as to the amount of pressure necessary to dislodge the fryer, there is no dispute in the evidence that it was Anderson’s action in somehow hooking the doughnut fryer onto the adjacent drying rack, thus pulling the fryer out along with the drying rack, that caused the doughnut fryer to slide off the table and to spill its contents onto the floor.

In Greenway v. Peabody Intl. Corp., 163 Ga. App. 698 (294 SE2d 541) (1982), a negligent design case, this court stated the two fundamental rules relating to the manufacturer’s duty in designing a product: “ ‘[Fjirst, the duty is one of reasonable care, under the circumstances; second, neither a manufacturer nor a seller is an insurer that his product is, from a design viewpoint, incapable of producing injury.’ ” Id. at 699 (1). “Thus, if the product is designed so that it is reasonably safe for the use intended, the product is not defective even though capable of producing injury where the injury results from an obvious or patent peril. [Cits.] Stated otherwise, if the product functions properly for the use intended, if the injury results from no malfunction due to design of any portion of the product, and if the danger attendant to the use of the product is obvious or patent, then the product is not defective as a matter of law. While in many cases the defense based upon the obvious and common nature of the peril will be a question to be determined by the jury, a manufacturer is entitled to judgment as a matter of law in plain and palpable cases. [Cits.]” Coast Catamaran Corp., supra at 847-848.

We agree with the trial court that the record is devoid of evidence indicating that the doughnut fryer was not reasonably suited to the purpose for which it was designed, i.e., frying doughnuts. We further agree with the trial court that the absence of features turning a portable doughnut fryer into an immovable doughnut fryer and the danger of dislodging the fryer so that its contents could spill out were obvious and patent. Thus, we find the facts in this case similar to those in Greenway, Stodghill, Poppell, supra, and Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44 (248 SE2d 15) (1978), in that the product was alleged to be defective due to the absence of a tangible piece of safety equipment readily apparent to the consumer. Accordingly, the trial court did not err by finding that the doughnut fryer manufactured by appellee functioned properly for its intended use and was not defective as a matter of law, since the danger attendant to its use was patent and Belinda Thomas’ injuries did not result from any malfunction due to the design of any portion of the product. We need not address whether appellant sufficiently raised a claim for negligent failure to warn before the trial court since, regardless, it is well established that “[t]here is no duty on the manufacturer or seller to warn of obvious common dangers connected with the use of a product. [Cit.]” Vance v. Miller-Taylor Shoe Co., 147 Ga. App. 812, 813 (2) (251 SE2d 52) (1978). Accordingly, the trial court’s grant of summary judgment in favor of appellee is affirmed.

Judgment affirmed.

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

Decided February 22, 1988

Rehearing denied March 4, 1988

Richard P. Decker, Adrian F. Lanser III, James F. Perz, for appellant.

Glenn Frick, Wayne C. Wilson, for appellee.


text:
    75589.
    75590.
    AMERICAN MEDICAL INTERNATIONAL, INC. v. CHARTER LAKE HOSPITAL, INC. et al. CHARTER LAKE HOSPITAL, INC. v. AMERICAN MEDICAL INTERNATIONAL, INC.
    (366 SE2d 795)
   Sognier, Judge.

The State Health Planning Agency (SHPA) approved the application of American Medical International, Inc. (AMI) for a Certificate of Need (CON) to add 24 adult psychiatric beds at McIntosh Trail Regional Medical Center in Griffin, Georgia. Charter Lake Hospital, Inc. (Charter), a psychiatric hospital in Macon, Georgia, appealed this decision to the State Health Planning Review Board (the Board), which, after hearings, affirmed the SHPA’s issuance of the CON. Charter then sought judicial review of the Board’s decision. The Superior Court of Bibb County rejected one of Charter’s claims of error, but reversed the Board’s decision on another ground alleged by Charter. AMI appeals from the Superior Court’s reversal of the Board’s decision, and Charter cross-appeals from the Superior Court’s other ruling.

Georgia law requires that a CON be obtained prior to the development of any new institutional health service. OCGA § 31-6-40. Applications are submitted to and reviewed by the SHPA, which determines whether a CON should be issued, in accordance with the criteria set forth in the applicable statute, OCGA § 31-6-42, and with any applicable rules. Parties aggrieved by the decision of the SHPA may request an appeal hearing before a three-member panel of the Board. OCGA § 31-6-44. The decision of the Board then becomes the “final agency decision” for purposes of judicial review in accordance with the Georgia Administrative Procedure Act, OCGA § 50-13-1 et seq. and 31-6-44 (g).

1. The key question governing the issuance of a CON is whether the proposal fills a need, since the purpose of State Health Planning in general, and of mandatory review of proposed new institutional health services in particular, is that such services “should be provided in a manner that avoids unnecessary duplication of services, that is cost effective, and that is compatible with the health care needs of the various areas and populations of the state.” OCGA § 31-6-1. In determining whether new psychiatric beds are needed, SHPA Rule 272-2-.09 (14) (The Psych Rule) must be applied. This rule provides a four-step formula for assessing the number of psychiatric beds needed in a certain area. First, the service area of the proposed project is determined. Second, if any existing or already approved psychiatric facility outside the service area is operating below 85 percent capacity, and its service area overlaps that of the proposed project, then the population in the overlapping area is allocated to the existing or approved facility, and subtracted from the population served by the applicant. In this case, it is undisputed that there are underutilized facilities in both the Atlanta and Macon areas whose circular service areas overlap that of appellant’s proposed project, and that the population of those overlapping areas must be allocated to the existing facilities, and not to McIntosh Trail’s service area. Third, a prescribed formula is applied to the remaining population in the applicant’s service area to determine the total number of beds needed in that service area. Lastly, the “beds available in the service area of the proposed service” are deducted from the total number needed, to arrive at the number of additional beds needed. Rule 272-2-.09 (14) (b) (3) (iv). Because of differing methods of measuring geographical areas, the parties’ estimates of population allocated to the McIntosh Trail project varied, and thus the estimates of the number of total beds needed to serve that population, as determined under step three of the process, ranged from 29 to 32.

The main dispute between the parties to this appeal centers on step four of the process, specifically, whether 11 adult psychiatric beds at Clayton General Hospital, which is located within the service area of AMI’s proposed project, should be subtracted from the total beds needed to arrive at the figure for “unmet bed need.” AMI contends they should not be subtracted because, since Clayton General’s occupancy rate exceeds 85 percent, those beds are not “available.” The Superior Court disagreed, ruling instead that the plain language of the rule, and the only interpretation consistent with the Psych Rule as a whole, is that “beds available” means “beds in existence.” Thus, the Superior Court held that since Clayton General’s 11 beds were in existence, they should have been subtracted from the total beds needed to serve the population in the service area of AMI’s proposed project, and since they had not been subtracted, the decision of the Board granting a CON must be reversed. We do not agree.

Even assuming, arguendo, that the Superior Court was correct in finding that the Clayton General Hospital beds should have been deducted in step four, we find that such a finding does not require, or even support, reversal of the Board’s decision affirming the issuance of a CON to AMI. The Board’s approval of the project did not depend on a finding that Clayton General Hospital’s 11 beds should not be subtracted from the total bed need. The Board expressly concluded that “[i]t is not necessary ... to resolve the dispute over Step Four because AMI’s proposed project is consistent with the applicable considerations and standards even if the beds at Clayton General are subtracted under the need methodology in the Psych Rule. . . . Even if the beds at Clayton General are subtracted, the methodology estimates a need for 18 to 21 beds at McIntosh Trail.” Nothing in the Rule, or the applicable statutory standards, requires that the proposal be approved only if the number of beds sought in the proposal exactly equals the number of beds needed, as shown by the formula. The formula is merely a method for estimating need, and the Board’s conclusion that a clear need for new beds was evident is not disputed. The Board concluded that the application for a CON need not be denied on the sole basis that the application proposes a few more beds than are shown to be needed unequivocally by applying the Psych Rule’s bed need formula. The Board’s reasoning in this regard was not erroneous as a matter of law, and was supported by substantial evidence in the record. It follows that the Superior Court’s reversal of the Board’s decision was improper, and must be reversed. See OCGA § 31-6-44 (i).

2. Because of our decision in Division 1, we must now address the merits of Charter’s cross-appeal. In addition to applying the Psych Rule to determine if an unmet need exists for additional beds specifically dedicated to psychiatric services, the Rule also requires that where, as here, the psychiatric beds are sought to be added to a general hospital, the hospital must show a need for general hospital beds; otherwise, already existing general hospital beds can be converted to psychiatric beds without increasing unnecessarily the total amount of hospital beds in existence. The Rule states that “if psychiatric . . . bed need is shown, the hospital as a whole must show need for additional beds according to the institution-specific general hospital bed need methodology before beds can be added to the overall bed complement.” Rule 272-2-.09 (14) (b) (3) (vii) (II). (Emphasis supplied.) The State Health Plan includes two alternative methods for determining general hospital need: the “institution specific” formula, referred to in the Rule, which applies when there is more than one hospital in the county, and the “county bed need” formula, which applies when a hospital is the only hospital in a given county. In the case sub judice, there would be a need for additional general hospital beds if the “county bed need” formula is used, but no additional beds would be necessary if the “institution specific” formula is used.

Charter contends that a literal reading of the Rule is necessary, and the application of the “institution specific” formula is required, despite the fact that McIntosh Trail is the only general hospital facility in Spalding County. Accordingly, Charter contends that the Superior Court erred by approving the Board’s use of the “county bed need” formula in this case. We agree with the Board and the Superior Court that to read the Rule in the manner urged by Charter “is to make it inconsistent with the overall approach of the State Health Plan to general hospital beds.” Further, “ ‘[t]he cardinal rule to guide the construction of laws is, first, to ascertain the . . . intent and purpose in enacting [them], and then to give [them] that construction which will effectuate the . . . intent and purpose.’ [Cits.]” DeKalb County v. Nall, 178 Ga. App. 429, 430 (343 SE2d 113) (1986). This is true of rules enacted by an agency pursuant to a grant of legislative authority, as well as to acts of the legislature, since the rules have the force of law. Cross v. Balkcom, 102 Ga. App. 81, 83 (115 SE2d 783) (1960), reversed on other grounds, Balkcom v. Cross, 216 Ga. 530 (118 SE2d 185) (1961). Substantial evidence was presented, in the form of testimony from one of the drafters of the Rule, that the drafters’ intent was to use the term “institution specific” in a generic, rather than a particular or technical, sense, encompassing whichever method would be appropriate to the facts under the State Plan. Since it is undisputed that McIntosh Trail is the only general hospital in Spalding County, the “county bed need” formula is appropriate. We are not persuaded by Charter’s argument that the Supreme Court’s holding in Dogwood Square Nursing Center v. State Health Planning Agency, 255 Ga. 694 (341 SE2d 432) (1986), requires a literal reading of the Rule in this case. Dogwood Square did not involve the construction of a rule, but rather concerned the Board’s complete failure to apply a rule, and is thus distinguishable. Accordingly, the Superior Court did not err by approving use of the “county bed need” formula by the Board.

Decided February 22, 1988

Rehearing denied March 4, 1988

Charles L. Gregory, for American Medical International.

Richard L. Shackelford, for Charter Lake Hospital.

Michael J. Bowers, Attorney General, Susan L. Baranoff, Staff Assistant Attorney General, for State Health Planning Agency.

Judgment affirmed in Case No. 75590. Judgment reversed in Case No. 75589.

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


author: Birdsong, Chief Judge.

text:
    75604, 75731.
    VANN v. DeKALB COUNTY BOARD OF TAX ASSESSORS et al. (two cases).
    (367 SE2d 43)
   Birdsong, Chief Judge.

This is a consolidated appeal. Appellant owns residential property in DeKalb County. Appellant contends that prior to 1986 his property was appraised as to fair market value for ad valorem taxation using a combination of methods of evaluation (including actual inspection by trained appraisers). However in 1986, the appellees (hereinafter referred to as the board) adopted a new appraisal method of dividing the county map into administrative areas (called “neighborhoods”) which have no necessary resemblance of traditional neighborhoods. Each year, the board now determines the percentage of increase or decrease in fair market value of a given piece of residential real property by referring to the average sales price of property within that same neighborhood. Thus, sales are used as a guide to the changing fair market value of a house located in a given neighborhood, and such factors as the actual improvements or damages sustained by individual pieces of property or property location (proximity to favorable or unfavorable objects or conditions) are not directly considered in assessing property as to its fair market value. Rather the appraised value of each parcel within a given tax neighborhood is increased or decreased by the same percentage factor.

In April 1986, appellant appealed his property appraisal to the county board of equalization; and, after receiving an adverse ruling therefrom, he further appealed to the superior court pursuant to the appeal provisions of OCGA § 48-5-311 (f) (hereinafter referred to as tax appeal). In April 1987, the superior court dismissed that portion of appellant’s tax appeal challenging the constitutionality of the board’s tax assessment method on the grounds that OCGA § 48-5-311 (e) (1) did not vest the appellant taxpayer with the right to challenge the board’s methodology of assessing property. This court denied appellant’s interlocutory appeal to this ruling. On July 20, 1987, the superior court, noting that the appellant had contended that the fair market value of his property was $45,500 and that the board had stipulated to this fact, entered an order and judgment finding that the fair market value of appellant’s property was $45,500. On August 19, 1987, the superior court issued a nunc pro tunc order and judgment amending its July 20th order and judgment to reflect that appellant’s demand that his property “be equalized with other like and similar property in [the county] and that his property be uniformly appraised and assessed is dismissed as moot” in view of the stipulation as to fair market value thereof. Thus, appellant’s constitutional objections to the board’s method of assessment were not considered on the merits of the tax appeal.

While the tax appeal was in progress, appellant on November 26, 1986, initiated a class action suit in superior court challenging the board’s method of property appraisal under the Constitutions and laws of the United States and of the State of Georgia (hereinafter referred to as class action). On July 2, 1987, the superior court entered an order granting the board’s motion to dismiss the class action. The superior court, after noting that appellant in support of his class action “relies on State Law and Title 42 U.S.C. § 1983,” concluded that it lacked subject matter jurisdiction over a challenge to the 1986 appraisal of appellant’s property because an adequate legal remedy existed under OCGA § 48-5-311 statutory tax appeal provisions, to contest “tax assessment and collection practices” and to protect his state and federal rights. The court then granted the board’s motion to dismiss the class action on the grounds that appellant “has utilized the State statutory procedure for appeal, and . . . this is an adequate remedy to protect [his] Federal rights.” However, the tax appeal trial judge, in April 1987, had dismissed that portion of appellant’s tax appeal complaint that challenged the legality and constitutionality of the board’s method of appraisal. Vann also appeals from that judgment. Held:

1. Regarding the class action, appellant enumerates as error that the trial judge erred in dismissing his complaint for want of subject matter jurisdiction. Subject matter jurisdiction has been defined as “ ‘the power to deal with the general abstract question, to hear the particular facts in any case relating to this question, and to determine whether or not they are sufficient to invoke the exercise of that power.’ ” Williams v. Fuller, 244 Ga. 846, 849 (262 SE2d 135). But jurisdiction of the subject matter does not mean simply jurisdiction of the particular case then occupying the court’s attention, but jurisdiction of the class of cases to which that particular case belongs. As applied to the subject matter of a suit, jurisdiction is always conferred by law. Zeagler v. Zeagler, 192 Ga. 453, 456 (15 SE2d 478).

The jurisdiction of our superior courts is that vested by the Constitution of the State of Georgia and by statute. See, e.g., Art. VI, Sec. IV, Par. I, Georgia Constitution; OCGA § 15-6-8; Department Industrial Relations v. Travelers Ins. Co., 177 Ga. 669 (170 SE 883); see generally Fulton County v. Woodside, 222 Ga. 90, 100 (149 SE2d 140) holding that neither the legislature nor a judge can limit the jurisdiction of a superior court. As a general rule, “a right of action arises by necessary implication against a county when it violates a constitutional right of a citizen.” Baranan v. Fulton County, 232 Ga. 852, 856 (209 SE2d 188); Waters v. DeKalb County, 208 Ga. 741 (1) 69 SE2d 274); Watkins v. Cobb County Comm., 135 Ga. App. 324 (2) (217 SE2d 298); see Smith v. Floyd County, 85 Ga. 420, 424 (11 SE 850). The class action suit, in part, involves a constitutional challenge of a county property appraisal and tax assessment policy and a challenge of the intentional conduct of certain county officials in their implementation of this policy.' However, we need not determine whether the superior court had subject matter jurisdiction in the classic sense over the matters asserted in appellant’s class action complaint, because if the trial court’s ruling granting the motion to dismiss was proper and legal for any reason it will be affirmed, regardless of the reason assigned by the court in support thereof. See Orkin Exterminating Co. v. Walker, 251 Ga. 536, 539 (307 SE2d 914); Hairston Enterprises v. Lee, 162 Ga. App. 475 (291 SE2d 404); Vada Corp. v. Harrell, 156 Ga. App. 137, 141 (273 SE2d 877); Turner v. Baggett Transp. Co., 128 Ga. App. 801 (4) (198 SE2d 412).

Regarding that portion of appellant’s class action which is alleged to rest upon a cause of action created by state law, we find that appellant has failed to assert a claim cognizable by the superior court. OCGA § 48-5-311 provides a statutory appeal system which authorizes any taxpayer to appeal from an assessment by the county board of tax assessors “as to matters of taxability, uniformity of assessment, and value, and as to denials of homestead exemptions.” Id. at OCGA § 48-5-311 (e) (1). If a remedy at law is plain and adequate, that is, as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity, it will exclude appropriate equity relief. Sherrer v. Hale, 248 Ga. 793 (2) (285 SE2d 714); Middlebrooks v. Lonas, 246 Ga. 720 (2) (272 SE2d 687), citing Atlantic Coast Line R. Co. v. Gunn, 185 Ga. 108 (194 SE 365). OCGA § 48-5-311 provides a plain and adequate remedy at law to appellant’s challenge that the county’s tax assessment and appraisal system deprived him of due process of law, equal protection of the law, and lacked uniformity as required under the provisions of the Constitution of Georgia. See generally Wilkes v. Redding, 242 Ga. 78 (247 SE2d 872) (holding that the board of equalization is the appropriate forum for deciding taxpayers’ constitutional and procedural issues as well as questions of uniformity, valuation and taxability); see generally Butts County v. Briscoe, 236 Ga. 233 (223 SE2d 199) (holding that all legal and constitutional questions can be settled in a statutory tax appeal action); see also Acree v. Walls, 240 Ga. 778, 786 (243 SE2d 489); Chilivis v. Backus, 236 Ga. 88 (222 SE2d 371); Tax Assessors v. Chitwood, 235 Ga. 147 (218 SE2d 759); see also Ga. Const. of 1983, Art. VI, Sec. I, Par. I (General Assembly may authorize administrative agencies to exercise quasi-judicial power). Cf. Cobb County Bd. of Commrs. v. Poss, 257 Ga. 393, 395-397 (359 SE2d 900) (requiring the exhaustion of legislative remedies before the board, but holding that where appeals to the superior court are de novo proceedings the property owner is not restricted to the evidence presented to the local zoning officials in support of his constitutional challenge of the zoning ordinance). Further, in addition to barring injunctive relief, this rule bars the issuance of a declaratory judgment or mandamus. Wilkes v. Redding, supra at 79; Barr v. Jackson County, 238 Ga. 332 (232 SE2d 923); Butts County, supra at 236.

Appellant also asserted that he was deprived of due process of law and equal protection of the law in violation of the United States Constitution, and contends he has a cause of action cognizable under 42 USCA § 1983. We disagree. In Parratt v. Taylor, 451 U. S. 527 (101 SC 1908, 68 LE2d 420), the Supreme Court of the United States held that if a state provides adequate post-deprivation remedies then procedural due process requirements will be satisfied, provided the constitutional deprivation of property was caused by the unauthorized negligent act of state agents. In Hudson v. Palmer, 468 U. S. 517, 533 (104 SC 3194, 82 LE2d 393), the Supreme Court expanded its Parratt holding to encompass unauthorized intentional acts by state agents. But, in Logan v. Zimmerman Brush Co., 455 U. S. 422 (102 SC 1148, 71 LE2d 265), the Supreme Court concluded that post-deprivation remedies do not satisfy procedural due process requirements where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action. Logan, supra at 436-437; Hudson, supra at 532. In so ruling, the court concluded that “absent ‘the necessity of quick action by the State or the impracticality of providing any predeprivation process,’ a post-deprivation hearing would be constitutionally inadequate.” Logan, supra at 436 and cases cited therein.

This case clearly involves the conduct of county tax agents occurring in direct implementation of an established county ad valorem tax procedure. However, the Supreme Court consistently has recognized that cases involving the constitutional challenge to the collection of state taxes are of a special class. Lynch v. Household Fin. Corp., 405 U. S. 538, 542 n. 6 (92 SC 1113, 31 LE2d 424) and cases cited therein. Certainly, such cases usually necessitate “quick action by the State” and its taxing entities and agents to avoid substantial jeopardy to the state’s overall financial structure. In Backus v. Chilivis, 236 Ga. 500 (224 SE2d 370), the Georgia Supreme Court recognized these considerations and stated “[t]he overriding interests of the state in an efficient, expeditious and nondisruptive resolution of ad valorem tax disputes would be seriously impaired, if not destroyed, by the allowance of [42 USCA § 1983] suits.” Id. at 505; see Linderkamp v. Bismark School Dist., 397 NW2d 76, 79 (N.D. 1986). The court then concluded that a § 1983 claim is not available under Georgia law where the defendants are county taxing authorities and the basis of the claim is unequal or nonuniform imposition of ad valorem taxation. Backus, supra at 506; c.f., Sisson v. Douglas County School Dist., 181 Ga. App. 77, 80 (351 SE2d 272) (the legislature provided due process of law in its consideration of potential claims during enactment of the state’s overall tort scheme of law). We are satisfied that the linchpin to appellant’s § 1983 claim is the alleged nonuniform and unequal appraisal procedure approved by the county and implemented by its agents. Accordingly, we find that the 42 USCA § 1983 claim in this case is not cognizable. Backus v. Chilivis, supra.

In reaching the above conclusion, we are mindful of appellant’s litigative position in his tax appeal case. However, whether the superior court erroneously refused to allow appellant to challenge the constitutionality of the county’s methodology of assessing property, is an issue which, if properly preserved, may be addressed during the appeal of that particular companion case. See Wilkes, supra at 79 (the board’s failure to answer some of the questions submitted may be enumerated as error on de novo appeal). Finally, in view of the above disposition, we are not required to determine whether the statutory appeal procedure of OCGA § 48-5-311 (e) and (f), in view of OCGA § 48-5-29 (a), provided appellant in this particular case with a pre-deprivation, quasi pre-deprivation or post-deprivation remedy.

2. Regarding the tax appeal, appellant enumerates as error that the trial court erred in dismissing that portion of appellant’s tax appeal which challenges the constitutionality and legality of the method of appraising real property for taxation in DeKalb County. We agree.

At the outset, we note that appellant’s challenge to the constitutionality of the board’s methodology for assessing taxes, in this instance, is inextricably bound to the basic issue of uniformity of assessment of real property located within the county. It is clear that any taxpayer may appeal under the provisions of OCGA § 48-5-311 (e) and (f) “as to matters of taxability, uniformity of assessment, and value.” (Emphasis supplied.) The question of whether the board of equalization has the power to resolve relevant constitutional issues in the course of fulfilling its statutory appeals function has been conclusively answered in the affirmative by the Supreme Court of Georgia. Wilkes v. Redding, supra at 79; Barr v. Jackson County, 238 Ga. 332 (1) (232 SE2d 923); see Butts County v. Briscoe, supra at 235; Chilivis v. Backus, supra at 89-90; Tax Assessors v. Chitwood, supra at 152-154; see also Ga. Const, of 1983, Art. VI, Sec. I, Par. I. We see no reason to depart from this established precedent.

However, the board contends that the appropriate remedy in this case was merely to reduce taxpayer’s property assessment to the same proportion of fair market value that has been applied generally to similar properties. In Hardin v. Reynolds, 189 Ga. 534 (6 SE2d 328), the Supreme Court opined that the Act of 1918 (the act then under consideration) was not invalid merely because it failed to provide for a hearing before the entry of assessment in view of its other procedural safeguards. The court thereafter concluded that “[i]t is sufficient if the delinquent has an opportunity to question the validity or the amount of the assessment, either before the amount is determined or in subsequent proceedings for collection.” (Emphasis supplied.) Id. at 541. After examining the record and transcript of the tax appeal and taking judicial notice, in accordance with the general authority contained in Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107), of the record and transcript of the companion class action, we find that appellant has not been given “an opportunity to question the validity ... of the assessment” imposed against his property as authorized by Hardin. An assessment based upon an unconstitutional method of property appraisal would not be valid, and appellant has been deprived, in this instance, of any reasonable opportunity to challenge the constitutionality of the method used to determine the fair market value of his property. This type of issue generates the kind of constitutional question that Wilkes concluded should be addressed in the statutory tax appeal process.

The Commissioner, Department of Revenue for the State of Georgia, as an appellee, asserts that current precedent provides tax assessors with the authority “to use any methodology to arrive at their values as long as they reach fair market value on the appraisal.” (Emphasis supplied.) However, Georgia case law cannot be interpreted as authorizing unconstitutional conduct on the part of state officials. While the lead case, cited by the appellee, of Rogers v. DeKalb County Bd. of Tax Assessors, 247 Ga. 726, 729 (279 SE2d 223) of necessity vests “very wide discretion” in the state in the laying of their taxes, it also holds that “the [s]tates, in the exercise of their taxing power, are subject to the requirements of the Equal Protection Clause of the Fourteenth Amendment.” Thus, it is clear that although tax assessors are vested with great powers of office in order to perform their executive function, they too are not above the law.

The board draws the attention of this court to Hillsborough T. P. v. Cromwell, 326 U. S. 620 (66 SC 445, 90 LE2d 358), as authority for their assertion that a reduction in appellant’s assessment in cases of nonuniformity is exactly what is required to protect one’s rights under the federal constitution. We find Hillsborough to be distinguishable from this case. There is nothing certain in life, it has been said, but death and taxes. It is obvious that appellant will be called upon to pay any tax assessed against him in the coming years, and that the board will continue to use its current method of property value determination, in the foreseeable future, unless compelled to do otherwise. Thus, we are satisfied that appellee’s claim that appellant has not been subjected to any form of a constitutional deprivation of a property interest is devoid of merit. Further, this case belongs to that narrow class of cases where reducing appellant’s assessment will not automatically moot the appellant’s constitutional challenge. Ger- stein v. Pugh, 420 U. S. 103, 110 n. 11 (95 SC 854, 43 LE2d 54); Moore v. Ogilvie, 394 U. S. 814, 816 (89 SC 1493, 23 LE2d 1) (considering the merits of the appeal when the problem presented was “capable of repetition yet evading review”); Mulling v. Wilson, 245 Ga. 773, 774 (267 SE2d 212).

Decided January 20, 1988

Rehearings denied February 24, 1988 and March 4, 1988

David R. Bundrick, John J. Goger, for appellant.

Albert S. Johnson, Baxter P. Jones, Michael J. Bowers, Attorney General, Lucy T. Sheftall, Assistant Attorney General, for appellees.

Of course, to assert his constitutional issue before the superior court in a de novo appeal, appellant must have timely raised the issue before the board of equalization. Wilkes v. Redding, supra at 80; cf. Cobh County Bd. of Commrs. v. Poss, supra at 395-397 (constitutional attack on a zoning classification cannot be made for the first time in superior court, but if the issue is properly preserved appellant is not restricted on appeal to the same evidence presented to the board). If the appellant met this requirement and if the board failed to answer the issues submitted to it, such failure then may be enumerated as error on the de novo appeal. Id. at 79-80.

The tax case (No. 75731) is remanded to the superior court for further proceedings consistent with the guidance contained in this opinion. Nothing in this opinion is intended to indicate this court’s views as to the merits of appellant’s claim.

Judgment affirmed in Case No. 75604. Judgment vacated and case remanded with direction in Case No. 75731.

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


text:
    75696.
    PANFEL et al. v. BOYD et al.
    (367 SE2d 54)
   Birdsong, Chief Judge.

This is an appeal from the order of the trial court granting and denying various motions for summary judgment by appellants and appellees. Appellants, Mark Panfel and Scott Roberts, were potential purchasers of the Anderson Park Apartments, which were owned by appellees James Boyd, Boyd Properties, and Anderson Park Apartments, Ltd.

Appellees contracted with Michael Callahan, a real estate agent, and Northside Realty Associates, his employer, to sell the apartment complex. Roberts saw the advertisement and made an inquiry which led to the tender of a contract by Panfel and Roberts who were jointly involved in other real estate ventures. The first contract was refused, but Boyd and his partners made suggestions which were accepted by Panfel and Roberts and a second contract was tendered. Appellants’ second contract offered a purchase price of $1,490,000, contingent upon the buyers obtaining a new first mortgage “of not less than $1,140,000, with an interest rate not to excede [sic] 13%.” Sellers were to receive $400,000 at closing and carry a second lien security deed in the approximate amount of $406,265 at 11 percent for 4 years and 12 percent for the remainder of the period. The buyers were to deposit $10,000 “to be used as earnest money, to be applied as part payment of the purchase price . . . and if sale, due to Buyer’s default, willful or otherwise, is not consummated, then said earnest money shall be refunded.” (Emphasis supplied.) Sellers were responsible for a 5 percent brokerage commission to Northside Realty. The sales contract was drafted by Panfel and Roberts on May 14, 1985, and required that the “[s]ale shall be closed on or before July 1, 1985.” The contract was accepted by Boyd and his partners and appellants’ check for $10,000 was deposited by Northside into its escrow account.

Panfel testified that the property appraisers were behind schedule and it became apparent that appellants could not complete arrangements for their loan before the July 1 closing date. Appellants verbally requested Callahan to obtain an extension of time for closing and confirmed the request with a letter, dated June 27,1985, in which they cited their “due diligence in attempting to close title by July 1st and would appreciate you[r] efforts in procuring a reasonable extension.” Callahan gave the letter to Boyd, who polled his partners and reached an agreement to extend closing to July 19 because appellants’ letter stated they “should be able to close the loan by mid-month” (Emphasis supplied.) Callahan said he verbally advised Panfel and Roberts of the July 19 deadline, but that the sale did not close on that date. Panfel stated that he talked to Callahan almost on a daily basis and “we understood that we had obtained our requested extension. There was no writing confirming the extension.” Appellants denied they were informed of a definite date for closing in response to their request, only that they had obtained an extension.

Callahan said that at some time before July 26, Panfel told him that the appellants had received a mortgage commitment from their bank for $1,100,000 which was $40,000 short of the contract condition, and appellants “asked [him] to ask Mr. Boyd whether the partnership would be willing to increase the amount of the loan the partnership intended [to] make to the purchasers as a part of the sale. [He] passed that request along to Mr. Boyd, and he rejected it.”

Panfel’s affidavit shows that the appellants received their loan commitment on July 26, one week after the extended closing date, and that he called Callahan on that date telling him of the loan and Callahan asked him when closing would be. Following that statement, Panfel said: “In a prior conversation, Mr. Callahan was asked by Mr. Roberts to approach the seller regarding the potential of including an additional $40,000 in the secondary financing. ... At all times Mr. Roberts and I had the additional $40,000 at our disposal and, from July 26, 1985 on, were ready, willing and able to close the sale. . . .” Callahan informed Panfel that Boyd was considering appellants’ request for additional financing of $40,000 as a counter offer.

Callahan admitted receiving a letter from Panfel on July 30 stating appellants would be ready to close on July 31, but on July 30, he told Roberts and Panfel the seller would not close on July 31, but he would poll his partners regarding an extension to August 2, and “that Mr. Boyd was not inclined to extend the closing deadline.” Appellants admitted they were told Boyd was not inclined to extend the deadline but Callahan asked them to put their proposal in writing “and that closing would be extended until August 2, 1985.” Panfel placed appellants’ proposal in a letter and gave it to Callahan. The letter was delivered to Boyd. On August 2, 1985, Boyd had a letter hand-delivered to appellants rescinding the contract for failure of the purchasers to close “on or before the time set forth in the contract, as extended. ...”

At some time after August 2, Panfel asked Callahan for a return of the $10,000 earnest money and confirmed his request in writing by a letter dated August 6, 1985, demanding return of the money. Callahan forwarded the letter to Boyd with an additional line typed thereon which included the consent of Boyd to return the earnest money. Subsequently, Boyd informed Callahan he would consent to a return of the earnest money and would reimburse appellants for their expenses in return for appellants’ agreement “not to sue him or his partners.” Callahan confirmed this verbal offer in a letter to Boyd and sent a copy to Panfel. Appellants rejected the offer and Panfel responded with a letter, dated September 4, to Callahan again demanding return of the earnest money under the terms of the contract. In the interim, appellants forwarded a letter to the head of Northside’s escrow accounts demanding return of the money in accordance with the contract, within three days, or that a lawsuit would be filed for the money and damages.

The earnest money was not returned and this action followed alleging: (1) breach of the sales contract, (2) a request for specific performance, (3) negligence on the part of Callahan for “failing to obtain an extended closing date from seller . . . [and] in not obtaining a written extension for this closing date,” (4) that Callahan wilfully, wantonly and intentionally represented that the sale would be closed on a date certain with actual or implied knowledge that the sellers intended not to perform, which amounted to fraud, and (5) that Callahan and Northside wrongfully refused to return the earnest money in accordance with the terms of the contract and wrongfully conspired to withhold the money.

Northside answered and filed a counterclaim against Panfel and Roberts, and a cross-claim against Anderson Park Apartments, alleging that because appellants demanded specific performance and the “[s]eller has not authorized the release of the . . . earnest money,” Northside was interpleading the funds into the registry of the court because it was “in great doubt as to whether defendants-in-counterclaim [Panfel and Roberts] or defendant-in-cross-claim [Anderson Park Apartments] is entitled to said funds.”

Boyd, Boyd Properties and Anderson Park Apartments answered and filed a counterclaim to recover fees, expenses and damages incurred when its attempt to refinance the apartment complex was turned down by the bank, ostensibly because of a lis pendens filed by appellants. A consent order was entered directing the interpleaded funds to be returned to appellants. The trial court granted summary judgment to Northside Realty, Callahan, Boyd, Boyd Associates, and Anderson Park Apartments on their motions. The court denied appellants’ motion for summary judgment against Boyd, Boyd Associates and Anderson Park Apartments on appellees’ claims for damages based on the lis pendens filing. Panfel and Roberts appeal from this order. Held:

1. Appellants allege error of the trial court “in failing to support its [summary judgment] Order with findings of fact and conclusions of law. . . .” Our Code requires in actions “tried upon the facts without a jury . . . [that] the court shall find the facts specially and shall state separately its conclusions of law thereon. . . . [However,] [findings of fact and conclusions of law are unnecessary on . . . motions under Code Section . . . 9-11-56 [summary judgment] . . . except as provided in subsection (b) of Code Section 9-11-41.” OCGA § 9-11-52 (a). OCGA § 9-11-41 (b) deals with involuntary dismissal of a complaint for failure of the plaintiff to prosecute or comply with an order of the court and is inapplicable to this case. The court did not err in failing to make findings of fact and conclusions of law.

2. It is contended that the court erred in granting summary judgment to Callahan and Northside because there remain questions of fact regarding: (a) Callahan’s breach of legal duties to appellants, (b) Callahan’s promises and representations to appellants which would support their claim of fraud, and (c) the withholding of the earnest money.

(a) Appellants were experienced real estate investors, and knew Callahan was an agent for the seller, and they had dealt with him in that capacity from the beginning of the negotiations until the final letter of rescission. All terms of the contract had been determined by Boyd and appellants, Panfel and Roberts. All requests for modification of the contract had been transmitted through Callahan to the seller. It was clearly understood by all parties that Boyd gave approval for any contract modification. Appellants twice submitted requests in writing, through Callahan, to Boyd, for extensions of the closing date, acknowledging that Callahan was without authority to decide any issue and only the seller could make a binding decision. There was no “apparent authority” that Callahan was anything other than an agent of the seller, or that his authority extended to varying the terms of the contract. See Interstate Fin. Corp. v. Appel, 134 Ga. App. 407 (1) (215 SE2d 19). Appellants demonstrated, in writing, they were fully aware of the extent of authority of Callahan, i.e., to transmit offers and other communications to the seller. We find no basis in the record for a claim of a legal duty of Callahan to the appellants, or for a claim of fraud. See Washington v. Combustion Engineering, 159 Ga. App. 555, 557 (284 SE2d 61).

(b) Remaining at issue is whether the court erred in granting summary judgment to Callahan and Northside on the issue of damages in refusing to return appellants’ earnest money. The contract terms were clear and unambiguous: “if sale, due to Buyer’s default, willful or otherwise, is not consummated, then said earnest money shall be refunded.” On August 2, the seller directed a letter to the buyers formally rescinding the expired contract. Appellants verbally, then in writing, demanded return of the earnest money. Callahan, and Northside as his principal, chose to ignore the contract terms and forwarded the letter to the seller for his concurrence in the return of the money. The seller also disregarded the contract terms and elected to exact exculpation. Continued demands for adherence to the contract terms for return of the earnest money met with negative results, until this action was filed and Northside impleaded the earnest money into the registry of the court, where all parties consented to its return to appellants.

On appeal Callahan and Northside allege adherence to the Rules of the Georgia Real Estate Commission as a basis for their failure to return appellants’ earnest money. The Georgia Real Estate Commission is authorized to pass rules and regulations, “not inconsistent with this chapter” (OCGA § 43-40-2 (c)) in governing the conduct of real estate brokers and salespersons. Section 520-1-.34 (2) of those Regulations provides that a broker “who disburses trust funds from a designated trust account under the following circumstances shall be deemed by the Commission to have fulfilled properly the broker’s duty to account for and remit money which the broker is required to maintain and deposit in a designated trust account. ...” The regulation then lists six methods: (a) upon “rejection of an offer to buy, sell, rent, lease, exchange or option real estate” (b) upon withdrawal of an offer, not accepted, (c) at the closing of the transaction, (d) upon securing a written agreement signed by all parties, which directs the brokers’ action, (e) upon the filing of an interpleader, and (f) in compliance with the order of a court of competent jurisdiction.

Where an agency or commission is granted the authority and power to adopt such rules and regulations within the scope of the legislative enactment, such rules and regulations have the same force and effect as that of a statute. Georgia Public Svc. Comm. v. Jones Transp., 213 Ga. 514, 515 (100 SE2d 183). However, it is the paramount public policy of this state that courts will not lightly interfere with the freedom of our citizens to contract. Cash v. Street & Trail, 136 Ga. App. 462, 465 (221 SE2d 640). Thus, “a person may waive or renounce what the law has established in his favor when he does not thereby injure others or affect the public interest.” OCGA § 1-3-7. Hence, in the instant case all parties to the contract chose to ignore the Rules and Regulations of the Real Estate Commission and contracted to return the earnest money to the potential buyer “if sale, due to Buyer’s default, willful or otherwise, is not consummated. . . .” We find nothing injurious to other persons or contrary to the public interest in such provision. It is uncontested that the sale was not consummated, due to the buyer’s default, but Northside failed to return the earnest money, even after the repeated demands of appellants. We also note that the Commission’s regulations authorized a return of the earnest money upon “rejection of an offer to buy. ...” The seller clearly rejected appellant’s offer to buy, but Northside chose not to comply with this subsection, but elected to pursue an agreement between the parties which was not obtained. Then Northside elected to implead the funds into this action.

“ ‘Before one occupying the situation of a stakeholder can call upon adverse claimants of a fund in his hands to interplead, he must satisfactorily show to the court that their claims have such a “foundation in law as will create a reasonable doubt” as to his safety in undertaking to determine for himself to whom the fund belongs.’ Franklin v. Southern Railway Co., 119 Ga. 855 (47 SE 344).” Smith v. Folsom, 190 Ga. 460, 465 (9 SE2d 824); see OCGA § 23-3-90. “ ‘It must appear from the allegations of the petition that the conflicting claims of the defendants are of such character as to render it doubtful or dangerous for the plaintiff to act. . . .’” Reed v. Metro. Life Ins. Co., 206 Ga. 604, 605 (58 SE2d 183). “While it is not incumbent upon the [holder] to decide at its peril either close questions of fact or nice questions of law, nevertheless, when [the holder] is in possession of all the facts and the questions of law are not intricate or debatable, a petition for interpleader will be denied. [Cits.]” Mandeville v. First Nat. Bank, 206 Ga. 426, 429 (57 SE2d 553). “ ‘A stakeholder is not entitled to protection by a court of equity to the extent of being saved from all shadow of risk; and so when he is in possession of all the facts and there is no question of law which is reasonably debatable, his petition for interpleader should be denied.’ ” Lilley v. Nixon, 214 Ga. 548, 550 (105 SE2d 716); accord Calhoun v. Lawrence, 217 Ga. 423, 424 (122 SE2d 576). The facts were known to Northside, as they were responsible for communications between the parties. We find no foundation in law as to create a reasonable doubt as to its safety in undertaking to dispense the earnest money in accordance with the clear terms of the contract. Northside was not entitled to interpleader as justification for withholding disposition of the funds in accordance with the contract.

We can easily understand the desire of Northside to please both parties to the contract and thus prevent a controversy over entitlement to the earnest money. But that problem should have been resolved in the original contract, if Northside wanted to dispense the funds in accordance with the Commission’s regulations. The Regulations of the Real Estate Commission are neither a panacea nor a shield which will insulate a real estate broker from compliance with the clear terms of a realty contract to which it is a party. Even if reliance is placed upon the Code, OCGA § 43-40-20 (f) requires that earnest money deposited in an escrow account “shall be maintained until disbursement is made under the terms of the encumbrance pertaining thereto. . . .” (Emphasis supplied.) Hence, the Code places above all else, compliance with the contract, which the Real Estate Commission Rules omit as an option.

Compliance by a broker with regulations of the Commission may insure his good standing with the Commission, but such compliance is not a bar to legal action when it is in violation of the terms of a valid contract. The basic grant of authority for the Commission to promulgate its regulations, OCGA § 43-40-2 (c), requires those rules to be “not inconsistent with this chapter. . . .” Regulation 520-1-.34 is not consistent with OCGA § 43-40-20 (f), which mandates compliance with contract terms, and the Commission’s regulation omits this requirement. The trial court erred in granting summary judgment to Callahan and Northside on appellants’ claim for damages for refusal of appellees to return their earnest money following rescission of the contract.

3. It is argued that the court erred in granting summary judgment to Boyd, Boyd Properties, and Anderson Park Apartments, because the financing provisions of the sales contract were inserted “for the protection of the appellants and clearly could have been and was waived by appellants” and were not a condition precedent. Appellants’ argument addresses only a portion of this issue. Although the financing condition was inserted for the benefit of appellants, it was a condition that could have prevented enforcement of the contract by appellees, thus was a condition precedent as to them. OCGA § 13-3-4; Nalley v. Harris, 176 Ga. App. 553 (2) (336 SE2d 822); Parker v. Averett, 114 Ga. App. 401 (2) (151 SE2d 475). When appellants could obtain a loan only for the amount of $1,100,000, which was $40,000 below the contract condition, and Roberts requested the realty agent to ask the seller to restructure the secondary financing to include the missing $40,000, this definitely was an additional condition attempted to be inserted in the contract, and to which no mutual assent had been given.

For there to be a valid contract, there must be a subject matter, a consideration, and mutual assent by all parties to all the terms. OCGA § 13-3-1. The subsequent communication by one party to the contract to the other party “varying only one term of the original offer” is a counteroffer. Stubbs v. Tattnall Bank, 244 Ga. 212, 213 (259 SE2d 466). The fact that the offeror may have intended something else does not alter the fact that appellants did tender a counteroffer to appellees. Id. at 214. Acceptance of an offer must be unconditional, unequivocal, and without variance of any sort, otherwise, there can be no meeting of the minds and mutual assent necessary to formation of a contract. B. L. Montague Co. v. Somers, 94 Ga. App. 860, 864 (96 SE2d 629). In the instant appeal, this issue is of doubtful significance. The original contract had expired by its own terms. The date for closing, as verbally extended, had passed, including the one requested by appellants (mid-month of July), and the one granted by appellees (July 19). Thereafter, the letter from appellant, dated July 30, offering to close on July 31 in accordance with the original offer, was merely an attempt to revive a contract no longer in existence and such offer was ineffective unless accepted. W. B. Leedy & Co. v. Shirley, 97 Ga. App. 801, 807 (1) (104 SE2d 580). The appellants’ offer was not accepted. The belated attempt to revive an expired contract with a changed condition was legally ineffectual. It is not material that appellants may have “[a]t all times . . . had the additional $40,000 at [their] disposal,” because the counteroffer they communicated to the seller was an offer to revise the original contract by adding an additional $40,000 to the seller’s secondary financing. And, whether the extension obtained by Callahan from the seller was to “mid-month” (July 15) or to July 19, is not germane to any issue because appellants admitted they were informed that their requested extension had been approved, and both dates had passed when appellants attempted to revive the expired contract. This enumeration is without merit.

4. Appellants allege the trial court erred in denying their motion for summary judgment as to the counterclaim of Boyd, Boyd Properties and Anderson Park Apartments based on the filing of the lis pendens notice, concurrent with the filing of their complaint. The complaint alleged a breach of a sales contract for realty and asked for specific performance, among other relief. For there to be “ ‘ “a valid and effective lis pendens, it is essential that three elements be present . . . [1] the property must be of a character to be subject to the rule; [2] the court must have jurisdiction both of the person and the subject-matter; and [3] the property involved must be sufficiently described in the pleadings.” ’ ” Scroggins v. Edmondson, 250 Ga. 430, 432 (297 SE2d 469). The case at bar met these criteria. “The only purpose of the lis pendens statute is to notify persons who are not parties to a pending suit involving realty that any judgment or decree rendered in the cause will be binding on them. ...” Kenner v. Fields, 217 Ga. 745, 747 (125 SE2d 44), overruled in part, on other grounds, 250 Ga. 430, fn. 1 at 431 (297 SE2d 469). The mere filing of an action involving realty will not operate as a lis pendens to such realty (OCGA § 44-14-610) unless filed with the clerk of the court and placed on the lis pendens docket. OCGA § 44-14-611. Hence, for a litigant’s action involving realty to place the world on notice and to bind the public as to the outcome, it is necessary to file lis pendens.

An owner of realty may bring an action for libel or slander which falsely and maliciously impugn his title, if any damage accrues to him. OCGA § 51-9-11. However, this tort is subject to the privilege of OCGA § 51-5-8 accorded all “ ‘regular pleadings filed in a court of competent jurisdiction. . . .’” Berger v. Shea, 150 Ga. App. 812, 813 (258 SE2d 621); accord Ferguson v. Atlantic Land &c. Corp., 248 Ga. 69 (3) (281 SE2d 545). Lis pendens may not be predicated upon an action which seeks merely to recover a money judgment (Watson v. Whatley, 218 Ga. 86, 88 (126 SE2d 621)), but the property itself must be directly “involved” in the pending suit. Evans v. Fulton Nat. Mtg. Corp., 168 Ga. App. 600, 601 (309 SE2d 884). In the case sub judice, appellants requested specific performance of the contract requiring the property involved to be sold to them. The property was directly involved. Hill v. L/A Mgt. Corp., 234 Ga. 341 (216 SE2d 97). Lis pendens was proper, the pleadings were privileged, and its filing is simply notice of the suit — not defamation of the title. Berger, supra. The trial court erred in denying appellants’ motion on appellees’ counterclaim involving lis pendens.

5. We find no error in the trial court’s denial of appellants’ motion for attorney fees based upon an allegation that Boyd’s motion for summary judgment and amended counterclaim “lacks substantial justification and was either interposed for delay or harassment.” We have sustained the grant of appellees’ motion for summary judgment and the trial court found sufficient merit to the counterclaim to reserve that issue for trial. Although we have reversed the trial court’s judgment as to the counterclaim on the lis pendens issue, we do not find such issue to be frivolous. OCGA § 9-15-14; see also Yost v. Torok, 256 Ga. 92 (344 SE2d 414).

Decided February 12, 1988

Rehearing denied March 4, 1988

Glenn S. Bass, for appellants.

Jay M. Barber, Richard P. Decker, Frederick G. Boynton, Edward H. Wasmuth, Jr., Harold L. Russell, for appellees.

Judgment affirmed in part and reversed in part.

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


text:
    74381.
    LOCKWOOD v. THE STATE.
    (367 SE2d 887)
    Decided March 4, 1988.

      John P. Fieri, John L. Taylor, Jr., John L. Schaub, for appellant.

      David L. Lomenick, Jr., District Attorney, Amy Abernathy, David J. Dunn, James D. Franklin; McCracken K. Poston, Jr., Assistant District Attorneys, for appellee.
   Sognier, Judge.

By opinion dated February 5, 1988, 257 Ga. 796 (364 SE2d 574), the Supreme Court of Georgia reversed this court’s opinion in the above captioned case. 184 Ga. App. 262 (361 SE2d 195). Accordingly, our opinion is vacated, and the Supreme Court’s opinion is made the opinion of this court.

Judgment reversed.

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


author: Carley, Judge.

text:
    75147.
    PALM RESTAURANT OF GEORGIA, INC. et al. v. PRAKAS et al.
    (366 SE2d 826)
   Carley, Judge.

Appellant-plaintiffs entered into a contract to sell the assets of a restaurant business to appellee-defendants. At the closing, appellee Athan Prakas executed two promissory notes in favor of appellant Palm Restaurant of Georgia, Inc. (Palm Restaurant). When payment on the notes was not forthcoming, appellants brought this suit. Appellees answered, denying the material allegations of appellants’ complaint, and filed a counterclaim. The case was tried before the trial court sitting without a jury. After making findings of facts and conclusions of law, the trial court entered judgment for $720 in favor of appellants. Appellants filed a motion for new trial on the general grounds. After their motion for new trial was denied, appellants instituted this appeal.

1. Appellants enumerate as error the trial court’s finding that the purchase price of the assets sold to appellees was $125,000 and its finding that, after the closing, appellees’ remaining obligation to appellants was only $55,000.

The undisputed evidence showed that the parties agreed to a purchase price of $135,000 for the assets. The evidence also would authorize only a finding that appellants had received $35,000 as earnest money prior to closing. The record is devoid of any evidence as to the exact amount of additional money, if any, that appellants had received at closing. Accordingly, the trial court’s findings clearly are not supported by the evidence.

It would appear that, in making these findings, the trial court gave consideration to evidence as to all amounts which appellées may have paid to appellants in connection with the underlying transaction. However, the relevant issue was the amount of the purchase price of the assets and the extent to which that agreed upon purchase price remained unpaid after the closing. The undisputed evidence is that appellees agreed to a purchase price of $135,000 for the business assets. There is no evidence that all payments made by appellees to appellants were to be credited against that amount.

2. Appellants enumerate as error the trial court’s finding that, after the closing, “substantial assets” had been taken from the premises by appellant Nick Jordan and its finding that, as the result of this loss of assets, appellees were entitled to a $10,000 offset against their obligation to appellants.

Appellant Jordan is the sole shareholder of appellant Palm Restaurant. Appellant Palm Restaurant contracted to sell to appellees “every item of furniture, furnishings, trade fixtures, goods, supplies, equipment and machinery” that it owned. The evidence showed that, after the closing, appellant Jordan had entered the premises, purportedly in order to collect items of his own personal property which consisted of a desk, a neon sign, and a cash register. Only appellant Jordan testified as to the total value of this property. His testimony was that its value was approximately $190. Although there was testimony that other items were missing from the premises after the closing, there was no probative testimony as to the value of any such items. Assuming without deciding that the evidence authorized the trial court to find that all of the missing items had been taken by appellant Jordan and were the business assets of appellant Palm Restaurant and that appellant Jordan’s removal of that property violated the terms of the purchase agreement or bill of sale, there is no evidence to support the trial court’s finding that the value of the property removed was in excess of $190. Accordingly, the trial court’s finding that appellant Jordan took substantial assets entitling appellees to a $10,000 set-off is erroneous.

3. The trial court found that appellees were entitled a $15,000 offset for the cost of repairs to defective equipment which appellants had warranted to be in working order. This finding is enumerated as error.

There is no evidence which would show that appellant Palm Restaurant had made any warranty as to the condition of the assets that it sold to appellees or which would authorize a finding that such a warranty had been breached. What the evidence does show is that, in addition to purchasing the assets of appellant Palm Restaurant, appellees subleased from appellants’ former landlord the premises where the restaurant had been located. Appellees took possession of the premises in November of 1984. In December of 1984, appellees were forced to close their business because the defective condition of the heating system caused the gas company to refuse to supply gas to the premises. As the result of the gas shut-off, the heating system was not in operation when a hard freeze occurred in January of 1985. The water pipes located in the rented premises froze and burst, causing considerable water damage. Appellees undertook to make the necessary repairs and, as a result of this equipment failure and the subsequent repairs, appellees’ business remained closed from December of 1984 until June of 1985. It is clear that complaints concerning the condition of the heating, plumbing and electric systems on the premises should have been directed to the landlord from whom they were being leased. No evidence was presented which would authorize the trial court to find that a breach of warranty by appellants entitled appellees to a $15,000 set-off as against the purchase price of appellant Palm Restaurant’s assets.

4. Appellants enumerate as error the trial court’s finding that appellees had been prevented from commencing business operations for six months as the result of appellant Jordan’s conduct and its finding that appellees were entitled to an offset in the amount of $20,280 for rent paid during that six-month period.

The evidence showed that, in April of 1985, appellant Jordan had written a letter to the Bureau of Police. In that letter, appellant Jordan stated that he had closed his business, that the business assets had been sold to appellees, and that appellees had failed to fulfill certain of their obligations under the purchase agreement. Appellant sent copies of this letter to the Georgia Department of Revenue and the Georgia Alcohol and Tobacco Unit.

Although appellees urge that the trial court was authorized to find that appellant Jordan’s letter had impeded their ability to obtain a liquor license and had thereby delayed the opening of their business for six months following the closing, the record shows that appellees were issued a liquor license in June of 1985. Since appellant Jordan’s letter had not been written until April of 1985, it is apparent that the letter could only have had an effect on appellees’ obtaining a liquor license for three months at most.

Appellee Athan Prakas himself testified that, before his business could obtain a liquor license, it was required to have a certificate of occupancy and that such a certificate of occupancy could not be obtained until all the electrical, heating, and plumbing repairs had been completed. When appellees were issued a certificate of occupancy in June of 1985, the liquor license was issued a short time later. This evidence shows that the six-month delay in obtaining a liquor license cannot be attributed to appellant Jordan’s letter, but to the delay in having the premises repaired so as to secure the necessary certificate of occupancy. As discussed in Division 3, appellants had no obligation to appellees as to repair the premises. Accordingly, any delay in appellees’ receipt of a liquor license was not caused by any of the actions of appellant Jordan.

Appellees further contend that the trial court was authorized to find that the opening of their business had been delayed as the result of appellant Jordan’s removal of “substantial assets.” However, as discussed in Division 2, no “substantial assets” had been removed from the premises. It follows that the trial court’s findings are erroneous.

5. Appellants enumerate as error the trial court’s finding that appellant Jordan had unlawfully interfered with appellees’ business so as to cause appellees to lose $9,000 in anticipated profits for the months of April, May and June of 1985.

As discussed in Division 4, the evidence would not authorize a finding that appellant Jordan’s letter of April 1985 hindered appellees in obtaining a liquor license. Moreover, even assuming that appellant Jordan’s acts had damaged appellees, appellees would not be entitled to recover lost anticipatory profits under the evidence which was adduced. Appellee Athan Prakas testified that appellees had intended to convert appellants’ bar into a “family-type steak house” and the only evidence produced at trial as to the anticipated profits of the steak house was his testimony that he “wanted to make a couple of thousand dollars a month.” “In the instant case, as the business was not ‘an established business with clearly defined business experiences as to profit and loss,’ the loss of anticipated profits was clearly too speculative and remote to afford a basis for computation of damages and, in addition, the loss of such profits was not directly attributable to [the acts of appellants]. [Cits.]” Charter Med. Mgt. Co. v. Ware Manor, Inc., 159 Ga. App. 378, 385-386 (6) (283 SE2d 330) (1981). Accordingly, the trial court’s finding was erroneous.

6. Appellants enumerate as error the trial court’s finding that they were not entitled to recover attorney’s fees or interest on the two promissory notes which had been executed by appellee Athan Prakas.

In so finding, the trial court relied upon another of its findings, which was that appellants had failed to perform under the purchase agreement and had interfered with appellees’ business operation. However, as discussed in the preceding divisions of this opinion, there is no evidence that appellants did not perform under the purchase agreement and no evidence that they interfered with appellees’ operation of their business. Accordingly, the trial court’s finding that appellants had thereby lost their entitlement to recovery of attorney’s fees and interest on the notes is erroneous.

7. Appellants enumerate as error the trial court’s finding that appellee Earnest Brookins had been released as a surety on the $50,000 promissory note.

The evidence is undisputed that appellee Brookins endorsed the note with the intention of guaranteeing payment thereon. The trial court found that he had been released as a surety on the note because appellant Jordan’s removal of “substantial assets” had made payment of the note more difficult. However, as discussed in Division 2, no evidence was presented which would authorize the trial court to find that appellant Jordan had removed $10,000 worth of “substantial assets” from the premises. Accordingly, the trial court’s finding as to appellee Brookins’ release as surety is premised upon an erroneous finding and is, therefore, itself erroneous.

8. For the reasons discussed above, the findings of the trial court are clearly erroneous and the judgment based thereon must be reversed. “ ‘If the court’s judgment is based upon a stated fact for which there is no evidence, it should be reversed.’ [Cit.]” Lamas v. Baldwin, 140 Ga. App. 37, 39 (1) (230 SE2d 13) (1976). “We remand the case to the trial court with direction that it correct the finding [s] to conform to the evidence and then make a judgment with the corrected findingfs] taken into consideration. [Cit.]” Chatham v. World Arts &c. Center, 147 Ga. App. 421, 422-423 (249 SE2d 139) (1978).

Judgment reversed and case remanded with direction.

Banke, P. J., and Benham, J., concur.

Decided March 4, 1988.

Jeffrey C. Hamling, Robert 0. Fleming, Jr., for appellants.

Richard W. Gerakitis, for appellees.