text:
    75757.
    ESQUIRE CARPET MILLS, INC. et al. v. KENNESAW TRANSPORTATION, INC. et al.
    (367 SE2d 569)
   Sognier, Judge.

Esquire Carpet Mills, Inc. and Al Couch d/b/a Esquire Carpet Mills (collectively Esquire) instituted suit against Kennesaw Transportation, Inc. (Kennesaw) and its president and sole shareholder, seeking damages for losses incurred when Kennesaw claimed a lien for unpaid freight charges and retained possession of a shipment of Esquire’s carpet which had been loaded onto Kennesaw’s truck in Georgia for delivery to Esquire’s customers in the western United States. Kennesaw answered and counterclaimed for the freight charges on the undelivered shipment. The trial court directed a verdict in favor of Esquire on Kennesaw’s counterclaim, and no appeal is brought from the judgment entered thereon. Esquire brings this appeal from the judgment entered on the trial court’s order directing a verdict in favor of Kennesaw on the main claim.

Appellee claimed its lien under OCGA § 46-9-191, which provides, in pertinent part, that “[w]hen a carrier has complied with his contract as to transportation, he shall have a lien on the goods for the freight charges and may retain possession until the lien is paid, unless this right is waived by special contract or actual delivery of the goods. If the goods are delivered, the carrier acquires a lien for the freight charges on and may until the lien is paid retain possession of other goods belonging to the debtor which come into the possession of the carrier.” (Emphasis supplied.) The record reveals that in April 1986 appellee submitted to appellant a written proposal of costs for its shipping services. After one truckload had been picked up, a letter was sent to appellant by appellee confirming the payment terms agreed to by the parties, which showed that appellee would bill appellant on the date the carpet was loaded, and that appellant would pay “one-half in fifteen days and the balance in another fifteen days.” After having picked up three loads of carpet, which were delivered without incident, appellee loaded a fourth shipment of carpet from appellant on May 25, 1986, for delivery to customers in Arizona and California. On May 27, 1986, after delivering a small portion of that shipment to its proper destination in Arizona, appellee halted its delivery of the fourth truckload of carpet, which was then in California, and imposed a possessory lien for unpaid freight charges, under the authority of OCGA § 46-9-191. The shipment was later stored by appellee in a public warehouse in Fullerton, California. On that date, $2,900 in matured installment payments was due and owing to appellee from appellant, representing the first installment on each of the first two shipments. This sum was received by appellee in payment from appellant on the following day, May 28th. Under the parties’ agreement as to payment terms, no further payment was due until May 29th. After making the first two installment payments on May 28, 1986, appellant did not meet the dates for payment as required by the parties’ agreement, but by July 16, 1986, appellant had paid appellee in full for the first three shipments. Appellee continued to retain possession of shipment four until April 15, 1987, when appellant obtained a court order releasing the carpet upon payment of a bond.

1. We agree with appellant that the trial court erred by directing a verdict in favor of appellee. “It is elementary that a verdict may not be directed unless there is no conflict in the evidence and that introduced, with all reasonable deductions or inferences therefrom, shall demand a particular verdict. [Cits.]” Stuckey v. Kahn, 140 Ga. App. 602, 606 (2) (231 SE2d 565) (1976).

Pretermitting the question whether appellee had the right to assert a lien during the period from May 27,1986 through July 16,1986, it is uncontroverted that after the July 16, 1986 payments were made by appellant, no freight charges remained unpaid for goods as to which appellee, the carrier, “ha[d] complied with [its] contract as to transportation,” OCGA § 46-9-191, and therefore appellee was not entitled to continue asserting its lien on the fourth shipment after that time. Thus, a jury could have concluded that appellant was entitled to damages, and a verdict in favor of appellee was not demanded. Further, even assuming that appellee had the right to assert a lien during the period between May 27th and July 16th, the evidence is in conflict as to whether, in doing so, appellee demanded a sum in excess of the entire amount due under all four contracts before it would release its lien, as claimed by appellant, or whether, as maintained by appellee, only the amount due under the contracts was demanded. “Liens are statutory remedies created in derogation of the common law and are strictly construed. [Cit.]” Metro Properties v. City of Dalton, 161 Ga. App. 711, 714 (2) (288 SE3d 745) (1982). If appellee demanded a greater sum than was owed, appellee’s assertion of its lien was improper, as “[o]ne claiming a lien must clearly bring himself within its terms. [Cits.]” Georgia-Pacific Corp. v. Dan Austin Properties, 126 Ga. App. 191 (190 SE2d 131) (1972), aff'd 229 Ga. 803 (194 SE2d 472). Since the facts are disputed, the jury should have been allowed to resolve them, and it follows that appellee was not entitled to a directed verdict in its favor.

2. Nor do we agree with the trial court that appellant could not recover as a matter of law because it failed to prove its damages, even if appellee’s retention of the goods was improper. Since at the time of trial appellant had recovered the goods, the measure of its damages would be that for failure of the carrier to deliver the goods within a reasonable time, i.e., the difference between the market value at the time and place they should have been delivered and the market value at the time of actual delivery. See OCGA § 46-9-43. The record discloses that Couch testified as to the value of the carpet in California at the time it should have been delivered, and the value of the carpet in Georgia when released. There was also evidence of consequential damages in the record, including travel expenses incurred when appellant was forced to placate its customers whose carpet had not been delivered on time, and interest expenses incurred when it was compelled to finance and reship replacement carpet. The fact that the fourth shipment was eventually returned to appellant by court order before trial, and that appellant was able to sell it, would be relevant only in mitigation of the damages. See OCGA § 13-6-5; Kingston Pencil Corp. v. Jordan, 115 Ga. App. 333, 334 (1) (154 SE2d 650) (1967). There was sufficient evidence from which the jury could have determined whether appellant was entitled to damages, and if so, in what amount.

3. Since this case must be retried, we address several rulings made by the trial court which may recur. First, the trial court found that the agreement between the parties was a single contract. We do not agree. Under the clear and unambiguous terms of the letters to appellant, appellee offered to ship any goods presented by appellant at certain prices and on certain terms. This was a continuing offer, and became a contract with regard to each separate shipment only when appellant accepted the offer and engaged appellee’s services. It is not disputed that, had it desired to do so, appellant could have engaged the services of some other carrier to haul any of the shipments at any point, without breaching any agreement with appellee. Similarly, until the offer was accepted, appellee was free to change it. The actual contract was created each time the parties agreed that a particular shipment of carpet would be picked up and delivered to definite destinations, at the offered price and terms. See OCGA § 13-3-2.

Second, the trial court found that appellant was never sufficiently caught up in its payments to appellee under the contract to require the release of appellee’s lien before July 16, 1986. However, as OCGA § 46-9-191 permits, appellee’s right to a lien for payment of the freight charges was clearly waived, or at least modified, by the special contract between the parties which provided that no payment was due until 15 days after loading, despite the fact that goods had been delivered prior to that time. Thus, unless the payment was due under the contract, no lien attached. To construe the parties’ agreement or the statute otherwise would mean that, despite their agreement that no payment was yet due on the first shipment, appellee could have seized the second or third shipment, declaring its lien under the authority of the statute, in clear contravention of the parties’ agreement regarding payment terms. We decline to construe the statute or the agreement in this manner. No matured payments were outstanding on May 28th after appellee received the first installment payments on the first two shipments, and appellee had no right to continue holding the seized fourth shipment at that point. Thus, unless some other basis for the lien was shown, appellee would not have been entitled to assert its lien after all matured installments had been paid on May 28th, until such time as other matured installments were due and unpaid. Although appellee argues that it was entitled to assert its statutory lien because appellant’s payment history suggested that future payments might not be made, appellee did not elect to repudiate any of the contracts immediately upon breach by the appellants, as would be required under the case law applicable to anticipatory breach. See Smith v. Ga. Loan &c. Co., 113 Ga. 975, 977 (39 SE 410) (1901). Instead, appellee continued to hold open its offer to extend credit to appellant for shipping, and loaded new shipments. Ordinarily, “[t]he breach which will form the basis for this type of action is an unqualified repudiation of the entire contract prior to the time for performance .... The repudiation must go to the whole contract. [Cit.]” Continental Cas. Co. v. Stephenson, 112 Ga. App. 666, 667 (2) (145 SE2d 825) (1965). It would be a question for the jury whether appellant’s late payment, together with any other information available to appellee, constituted a repudiation of the contract, sufficient to amount to anticipatory breach.

4. We find no merit in appellee’s argument that, under the first sentence of OCGA § 46-9-191, appellee was entitled to a second lien, which continued to the time of trial, for unpaid freight charges on the seized fourth shipment. The statute clearly requires compliance with the contract for transportation of the goods as a condition precedent to acquiring a lien for unpaid freight charges, and thus appellee could not acquire a lien on goods which it refused to deliver.

Judgment reversed and case remanded.

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

Decided March 1, 1988

Rehearing dismissed March 15, 1988.

Carl V. Kirsch, for appellants.

Roy E. Barnes, Jeffrey G. Casurella, for appellees.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    75214.
    ROBERTS v. COTTON STATES MUTUAL INSURANCE COMPANY.
    (367 SE2d 272)
   Benham, Judge.

Appellant Roberts purchased motor vehicle insurance from Cotton States Mutual Insurance Company (“Cotton States”) with coverage from September 2, 1983 through March 2, 1984. The covered vehicles, a van and trailer, were involved in a collision with another vehicle on February 15, 1984, within the policy coverage period. Cotton States paid appellant under her collision coverage for the property damage she suffered. She later reached a settlement with State Farm Mutual Automobile Insurance Company (“State Farm”), the other driver’s liability carrier, for $5,000. State Farm issued a draft in that amount to appellant and Cotton States, as Cotton States had claimed a right of subrogation. Roberts claimed that the funds from State Farm belonged solely to her because Cotton States had no subrogation rights under OCGA § 33-34-3 (d) (1) of the Georgia Motor Vehicle Accident Reparations Act, as amended in 1978. Appellant sued to enjoin Cotton States from asserting its subrogation claim, and sought bad faith penalties. Cotton States counterclaimed seeking damages for Roberts’ failure to honor its subrogation claim. After both sides moved for summary judgment, the trial court granted appellee’s motion and denied appellant’s motion, and appellant appeals those rulings.

1. In her first enumeration of error, appellant asserts that OCGA § 33-34-3 (d) (1) bars subrogation to insurers under collision coverage unless one of the vehicles involved weighed more than 6500 pounds, unloaded. However, Carter v. Banks, 254 Ga. 550 (330 SE2d 866) (1985), is dispositive of the issue appellant raises. Carter held that Ga. Laws 1978, p. 2075 (OCGA § 33-34-3 (d) (1)) did not abolish “an insurer’s right to be subrogated to its insured’s claim against a third-party tortfeasor after paying benefits for damage to the insured’s motor vehicle under the collision coverage of an automobile insurance policy.” Id. at 551. In other words, if Cotton States “paid benefits to [Roberts] under the collision coverage of the policy and not under the no-fault property damage coverage . . . [Cotton States] is entitled to subrogation.” Id. at 554. The issue here is whether the coverage in question is collision coverage or no-fault property damage coverage.

2. In her second enumeration of error, appellant contends that the trial court’s reliance on Carter as being controlling authority is misplaced. As discussed in Division 1 of this opinion, the Supreme Court held in Carter that the insurance company’s right of subrogation remained intact for benefits paid under collision coverage. However, in that case, both collision and no-fault property damage coverages were offered, and it was “undisputed . . . that [the insurance company] paid benefits to [the insured] under the collision coverage of the policy and not under the no-fault property damage coverage.” Id. at 554. We agree that Carter is distinguishable from the instant case insofar as here, the basis of the dispute is the nature of the coverage under which appellee paid appellant. Cotton States claims appellant bought traditional collision insurance which carries with it a right of subrogation (Carter) while appellant claims the collision coverage was no-fault property damage coverage, under which Cotton States has no right of subrogation. OCGA § 33-34-3 (d) (1). After examining the policy terms for the coverage appellant purchased and comparing that with the statutory provisions, we must disagree with appellant’s position. OCGA § 33-34-3 states that insurers will not be subrogated to benefits the insured receives from coverage under OCGA §§ 33-34-4 and 33-34-5. The property damage coverage under OCGA § 33-34-5 (a) (3), if it is purchased, provides “[compensation without regard to fault for damage to the insured motor vehicle not to exceed the actual cash value of the vehicle at the time of the loss, including up to $10.00 per day with a maximum of $300.00 for the loss of use of the motor vehicle, provided that benefits payable under this paragraph may be subject to deductibles at the written election of the policyholder.” The coverage that Roberts purchased provided for payment of “the smaller of the following amounts: (a) The actual cash value of the damaged . . . property at the time of the loss [or] (b) The cost of repairing or replacing the damaged . . . property with other of like kind or quality,” reduced by the applicable deductible. Roberts’ deductible was $100. On the application for insurance that Roberts completed, she rejected the Georgia no-fault options for “Full Collision Coverage,” “Full Comprehensive Coverage” and “Loss of Use Coverage” by marking each of the three rejection boxes with an “X.” Since, by her rejection of full collision coverage and loss of use coverage, the coverage that she purchased did not comport with the coverage specified in OCGA § 33-34-5 (3), we must decide that she did not purchase no-fault property damage coverage. That being so, the coverage that she purchased must be considered “collision coverage” and thus subject to a right of subrogation in favor of Cotton States. The trial court ruled correctly in granting Cotton States’ motion for summary judgment and denying appellant’s motion.

Decided March 15, 1988.

Frank E. Jenkins III, Sharon C. Barnes, for appellant.

William P. Tinkler, Jr., William S. Shelfer, Jr., for appellee.

We note that the insurance application is very similar to the one that was found to be inadequate under Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983), but appellant’s argument regarding the adequacy of the application was not raised in her enumerations of error, and so we cannot address it. MacDonald v. MacDonald, 156 Ga. App. 565 (275 SE2d 142) (1980).

3. In light of our treatment of the case in the preceding two divisions, we need not address appellant’s remaining enumerations of error.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


author: Beasley, Judge.

text:
    75358.
    HEINEN v. THE STATE.
    (367 SE2d 275)
   Beasley, Judge.

Heinen appeals his conviction and sentence for aggravated sodomy, OCGA § 16-6-2, and the overruling of his motion for new trial which was based upon the general grounds and the contention that the trial court erred in denying his motion to dismiss for lack of a speedy trial. His argument on appeal focuses solely on his assertion that he was denied his Sixth Amendment federal constitutional right to a speedy trial.

Heinen was indicted on October 8, 1979 and charged with one count of aggravated sodomy and one count of child molestation which was later nolle prossed. He was arraigned and pled not guilty on February 4, 1980. During this time the victim, who was defendant’s 6-year-old stepdaughter, was admitted to Georgia Regional Hospital where she underwent psychiatric and psychological counseling because she had expressed suicidal thoughts. Upon her release in January 1980, she was placed in the Georgia Baptist Children’s Home where she stayed for a little over a year. On the psychologist’s advice, the victim’s father did not discuss the incident with her when she returned home. In March 1985, the father contacted the district attorney about the case because the victim had discussed with him what had occurred and told her father she was ready to testify.

The case was called for trial in May 1985. Defendant had moved to Texas and had stopped communicating with his attorney, so he was unavailable for trial and a bench warrant was issued. Heinen was arrested in October 1985 and returned to Paulding County in November where he was bonded to January 31, 1986. The trial was held November 13 and 14.

“A speedy trial is guaranteed an accused by the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, and also Article I of the Constitution of this State [now 1983 Ga. Const., Art. I, Sec. I, Par. XI (a)].” Powell v. State, 143 Ga. App. 684, 685 (1) (239 SE2d 560) (1977). The federal right attaches at time of arrest or when formal charges are brought, whichever is earlier. Haisman v. State, 242 Ga. 896, 897 (252 SE2d 397) (1979).

“In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), the Supreme Court of the United States identified four factors to be considered by a court in determining whether an accused’s constitutional right to a speedy trial had been violated: ... (a) [t]he length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) the prejudice to the defendant. . . . The Supreme Court further stated that it regarded none of the factors as either a necessary or sufficient condition to a finding of a deprivation of the right of speedy trial but rather that the factors should be considered together in a balancing test of the conduct of the prosecution and the defendant.” Washington v. State, 243 Ga. 329, 330 (1) (253 SE2d 719) (1979). As to the prejudice factor there are “three interests which the speedy trial right was designed to protect, the last being the most important: (a) to prevent oppressive pre-trial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired.” Id. p. 331; Hall v. Hopper, 234 Ga. 625, 626 (216 SE2d 839) (1975). We apply these criteria to the facts of this case.

(a) Length of delay. Although seven years and five months is a long period between the time of arrest and the trial, “mere passage of time is not enough, without more, to constitute a denial of due process.” State v. Fields, 137 Ga. App. 726, 727 (224 SE2d 829) (1976); Hughes v. State, 228 Ga. 593, 595 (1) (187 SE2d 135) (1972). It will be considered, however, in weighing all of the listed factors together.

(b) Reason for delay. The State maintains that the delay was caused and was justified by the victim’s inability to deal with and testify about the abuse and by her attendant hospitalization, that by the time the district attorney was notified that the child was capable of testifying until Heinen was bonded was approximately eleven months and that there is no evidence of a lack of diligence on anyone’s part. Defendant does not claim that there was deliberate delay for the purpose of hampering the defense but rather asserts that the State was negligent in causing the delay.

(c) Assertion of right. A delay by a defendant can weigh heavily against him. Haisman, supra. Defendant never filed a demand for a speedy trial, either under the statutory right, OCGA § 17-7-170, or to enforce a constitutional right. Cf. Blevins v. State, 113 Ga. App. 702 (149 SE2d 423) (1966). There was no evidence of defendant’s desire to have a speedy trial until his counsel on May 9, 1986, filed a motion to dismiss the indictment for failure to have a speedy trial and then filed a motion for reconsideration, both of which were denied. Defendant’s wait of six years after initial arrest before making known a desire to bring the case to trial evinces instead a desire to avoid trial altogether or at least gain advantage from the delay. See Barker v. Wingo, supra at 535.

(d) Prejudice to defendant. There was no inordinately long pretrial incarceration, because Heinen was at liberty on bqnd frqm July 22, 1979 until late October, 1985 when he was arrested on the bench warrant. He was then free on bond from November 21, 1985 until trial. Any anxiety or stress suffered by defendant was demonstrably minimal in that he did not file a demand for speedy resolution but instead left the jurisdiction and ceased communication with his attorney. Prejudice is claimed because the psychologist who had advised the district attorney when the case was indicted that the victim was incapable of testifying had died, and because by trial time the victim was nearly fifteen and had “seen and read about child molestation and . . . had seven years to think about the charges she made.”

Ostensibly the psychologist would have been a witness for the State and would have testified about the child’s inability to go to trial earlier. Defendant does not show that the presence of the psychologist would have been vital to his substantive defense or indeed impacted it in any manner. Moreover, there was other evidence at trial on the question of the child’s prolonged inability to testify.

Appellant’s contention that the victim’s increased age and exposure prejudiced him likewise fails because he has not produced any evidence that this was so. The jury had the opportunity to hear and see the girl testify and to judge her credibility in light of their knowledge of the passage of time between the offense and the trial and in light of what common sense would dictate, i.e., that the girl was then testifying from the framework and reference of a teenager. The jury chose to believe her rather than defendant, which was its prerogative. OCGA § 24-9-80.

Among equals, if any factor is first, it must be whether defendant suffered prejudice because of the delay. See Durden v. Barron, 244 Ga. 277, 279 (260 SE2d 17) (1979); Ferris v. State, 172 Ga. App. 729 (1) (324 SE2d 762) (1984). “There must be more than a mere claim of prejudice; it must be shown, and this the accused did not do.” Powell v. State, supra, 686.

Decided March 15, 1988.

Beverly M. Hartung, for appellant.

William A. Foster III, District Attorney, Blanchette C. Holland, Assistant District Attorney, for appellee.

Considering all, the trial court did not abuse its discretion in denying defendant’s motion to dismiss for lack of a speedy trial and therefore did not err in overruling his motion for new trial on that basis. Nelson v. State, 247 Ga. 172, 174 (3) (274 SE2d 317) (1981). The motion itself was an anomaly, since what defendant sought was not a new trial but rather an acquittal by operation of law, in effect a dismissal of the indictment.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.

       Since no state constitutional basis is raised, we do not consider any independent state ground.


text:
    75546.
    BUCKNER v. THE STATE.
    (367 SE2d 277)
   Beasley, Judge.

Buckner appeals his convictions and sentences for two counts of cruelty to children, OCGA § 16-5-70. The sole enumeration is that his federal and state constitutional rights to trial by a fair and impartial jury were abridged because on the morning of the closing arguments through verdict, the local newspaper published a story which contained statements, indicative of the court’s opinion as to guilt, made in ruling on defendant’s motion for a directed verdict of acquittal out of the jury’s presence.

It is true that the trial judge is prohibited from expressing or intimating an opinion to the jury as to matters proved or as to the guilt of the accused. OCGA § 17-8-57. Appellant claims that the possibility some of the jurors read the publication of the court’s comments constituted circumstances inherently prejudicial. However, such conjecture fails to import fact. He failed to show that any member of the deliberative body read or was even aware of the article. Without such, it is patent that the jury could not have been influenced by the judge’s statement. See Chambers v. State, 250 Ga. 856, 861 (6) (302 SE2d 86) (1983); Brooks v. State, 244 Ga. 574, 577 (1) (261 SE2d 379) (1979), vacated and remanded on other grounds 446 U. S. 961 (100 SC 2937, 64 LE2d 821) (1980). See also the principles quoted in Merrill v. State, 130 Ga. App. 745, 747 (1) (204 SE2d 632) (1974). Moreover, countervailing his contention is that at the close of evidence and prior to recess the day before, the court cautioned the jury not to read anything concerning the case nor listen to any reports of any sort from any source concerning the case, whether by radio, television or otherwise. A reversal is not warranted by an amorphous supposition which is reducible to fact by evidence, if it is indeed such.

Decided March 15, 1988.

Keith F. Allen, for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

No copy of the subject article appears in the record. Appellant submits a copy as part of his appellate brief, but “this court’s decisions ‘must be made on the record sent to this court by the clerk of the court below and not upon the briefs of counsel,’ . . .” Wilson v. State, 151 Ga. App. 501, 502 (4) (260 SE2d 527) (1979). See also Harris v. State, 173 Ga. App. 787, 789 (3) (328 SE2d 370) (1985).

Nor was the question ever raised below. Appellant claims that his counsel only learned of the existence of the article later on the day of the verdict, after dismissal of the jury, so had no opportunity to instigate an inquiry. However, the sequence of events would not have prevented raising the matter in a motion for new trial, so the requirement that the issue be presented to the trial court and ruled on cannot be overlooked. “[I]t is well settled that this court will not consider questions raised for the first time on review. [Cit.]” West v. State, 178 Ga. App. 275 (2) (342 SE2d 756) (1986).

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


text:
    75502.
    TANNER v. GILLELAND.
    (367 SE2d 257)
   Beasley, Judge.

Tanner, plaintiff below in what evolved from a land line dispute, appeals from the verdict and judgment in favor of defendant Gilleland on his trespass counterclaim, but only to the extent of the attorney fees.

1. At the close of plaintiff’s testimony, defendant was granted permission to amend his counterclaim and the pretrial order to add a claim for expenses of litigation and punitive damages. The jury awarded attorney fees but not punitive damages. As appellant, counter-defendant urges in two enumerations that allowing the amendments after plaintiff testified was an abuse of discretion.

The only objection voiced at trial was not that the amendments were untimely but rather that such damages are not recoverable in land line cases. Only those grounds urged below will be considered on appeal. Long v. Marion, 182 Ga. App. 361, 362 (1) (355 SE2d 711) (1987), affirmed, 257 Ga. 431, 432 (1) (360 SE2d 255) (1987). Thus, there is nothing in this regard for us to review.

Decided March 8, 1988

Rehearing denied March 16, 1988.

Charles W. Smith, Jr., for appellant.

W. Allan Myers, for appellee.

2. In his third enumeration, Tanner urges error in the denial of his motion for j.n.o.v. on the issue of expenses of litigation. This may not be considered, however, because no motion for directed verdict was made on this ground as required by OCGA § 9-11-50 (b). Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858 (2) (360 SE2d 418) (1987); Battle v. Yancey Bros. Co., 157 Ga. App. 277 (1) (a) (277 SE2d 280) (1981).

3. In his remaining enumerations, Tanner asserts that there was insufficient evidence to support the award of expenses, in that there was a “bona fide” dispute precluding their award. As indicated in Division 2, however, the issue of whether there was a defense as a matter of law to the award of expenses was not presented to the trial court and there is nothing for us to review as to that.

The counterclaim of defendant was for trespass, an intentional tort, which tort will support a claim for expenses under the theory that the intention evokes that “bad faith” necessary for recovery under OCGA § 13-6-11. Ponce de Leon Condominiums v. DiGirolamo, 238 Ga. 188, 190 (2) (232 SE2d 62) (1977).

There was evidence of the intentional building of a fence by plaintiff on defendant’s land. This was sufficient for the jury to consider the issue. The fact that there was a dispute as to the location of the land line did not justify the building of the fence. The cases cited by plaintiff for his contention that the existence of a “bona fide” dispute precludes award of attorney fees involved a contract dispute or negligence claim, not an intentional tort. Nestle’ Co. v. J. H. Ewing & Sons, 153 Ga. App. 328, 332 (2) & (3) (265 SE2d 61) (1980).

This enumeration is without merit.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


author: Sognier, Judge.

text:
    75551.
    THOMPSON v. THE STATE.
    (367 SE2d 247)
   Sognier, Judge.

Russell Thompson was convicted of armed robbery and he appeals.

In his sole enumeration of error, appellant contends the trial court erred by denying his motion to dismiss the indictment based upon the State’s failure to bring him to trial within the time required by the Interstate Agreement on Detainers (IAD), OCGA § 42-6-20.

The record reveals that on June 6, 1986, because of the untried armed robbery charge, the district attorney of Chatham County, Georgia caused a detainer to be lodged against appellant, who was then incarcerated at the U. S. Penitentiary in Terre Haute, Indiana. Appellant made several unsuccessful attempts not relevant here to comply with the statutory procedure for requesting final disposition of the indictment. On July 2, 1986, appellant drafted a letter to an assistant district attorney in Chatham County enclosing his request for a speedy trial, and attaching forms completed by him. Appellant then mailed copies of the letter and enclosures by certified mail to both the clerk of the superior court and the district attorney’s office in Chatham County. The record indicates that this mailing was received by the addressees on July 7th and July 9th, respectively. Subsequently, appellant did request prison authorities to execute the proper documents to initiate a request under the IAD. However, it is clear that when appellant mailed his request for disposition of the charges directly to the Chatham County authorities — on July 4th, according to the certified mail receipt — the memo dated July 7th from appellant to prison officials, upon which appellant relies, requesting that they complete the forms necessary under the IAD, could not have been included. A cover letter in the record indicates that the Warden’s Certificate of Inmate’s Status was completed by prison officials on July 15th, sent to the Chatham County District Attorney on July 25th, and received on August 1st. Appellant’s trial commenced on January 26, 1987, within 180 days of receipt by the State of the Warden’s Certificate of Inmate’s Status.

Article III (a) of OCGA § 42-6-20 provides, in pertinent part, that “[wjhenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment... on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court . . . written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment .... The request of the prisoner shall be accompanied by the certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence,” and other pertinent information. Subsection (b) of Article III provides that the notices required in subsection (a) are to be given or sent by the inmate to the warden or other appropriate official having custody of him, who is then responsible for “promptly” forwarding them to the prosecutor by registered or certified mail.

There is authority in this State for the proposition that absence of the required Certificate of Inmate’s Status is fatal to an inmate’s claim for disposition under the Act. See, e.g., Greathouse v. State, 156 Ga. App. 491 (274 SE2d 835) (1980); Reed v. Stynchcombe, 249 Ga. 344 (290 SE2d 469) (1982). In those cases, however, the Warden’s Certificate of Inmate’s Status was never provided, nor did the inmate do anything to cause them to be delivered. In the case sub judice, the required certificate was eventually supplied, and it is uncontroverted that appellant was tried within 180 days of receipt of all the items required by the statute. The parties have cited us to no Georgia case, and we have found none, which addresses the issue thus squarely presented here, i.e., what event triggered the running of the 180-day statutory period during which appellant must be brought to trial.

Appellant maintains the 180 days commenced upon receipt by the prosecutor of notice that appellant was making a claim for disposition, when appellant had done all that was required of him under the statute. Appellant argues that the inmate is at the mercy of the prison officials, and although they are under a statutory duty to “promptly forward” the inmate’s request, their failure to do so should not penalize the prisoner, as it is not inconceivable that a delay may be occasioned by negligent or deliberate inaction on the part of the prison staff. Since the statute requires only that the inmate seeking final disposition of the charges against him cause his request “to be delivered” to the appropriate authorities, and the statute, by its own terms, is to be liberally construed, see OCGA § 42-6-20, Article IX, the statute’s requirements should be deemed satisfied when the inmate requests the prison officials to act.

While this reasoning is persuasive, equally compelling is the countervailing argument that Georgia’s right to try an accused for a crime committed within its borders should not be imperiled or compromised by a delay occasioned not by its own inaction or negligence, but by the inadvertent or deliberate failure to act of those having custody of the accused in another state. An examination of cases from other jurisdictions interpreting and applying the IAD reveals a predictable split of authority along these lines. See 98 ALR3d 160. We agree with the State that the latter consideration must control here, in light of the circumstances of this case.

Decided March 7, 1988—

Rehearing denied March 16, 1988

Charles C. Grile, Alex L. Zipperer III, for appellant.

Spencer Lawton, Jr., District Attorney, Barry I. Mortge, Assistant District Attorney, for appellee.

First, even assuming the prison officials in this case actually received appellant’s memo on the same day it was written (which fact appellant has neither alleged nor attempted to prove), the time elapsed between the officials’ receipt of appellant’s memo and their mailing the completed forms to the prosecutor totals 18 days. We cannot say that, as a matter of law, this was an unreasonable delay such as will amount to a failure to “promptly forward” appellant’s request.

Second, appellant’s own actions, in mailing the request directly to the prosecutor and the clerk of court, did not comply with the mandate of the statute. OCGA § 42-6-20, Article III (b). Although it is true that appellant later conformed his actions to the statutory directive by submitting a request to the prison authorities, the date he urges this court to adopt as the one which triggers the 180-day period is the date the prosecutor received the direct mailing. This request was not sufficient under the statute, see Johnson v. State, 154 Ga. App. 512, 513 (268 SE2d 782) (1980), and we have held that the State is not required to act to bring a prisoner to trial within 180 days of an incomplete or improper request. See Greathouse, supra. An anomalous result would be achieved were we to decide here that if such an incomplete or incorrect request was subsequently completed or corrected, the State must bring the prisoner to trial within 180 days from the original, faulty request, thus shortening, sometimes drastically, the time allowed the State to prepare for and bring the accused to trial.

Accordingly, we hold the trial court did not err by denying appellant’s motion to dismiss the indictment.

Judgment affirmed.

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


author: Pope, Judge.

text:
    76145.
    MOORE v. THE STATE.
    (367 SE2d 239)
   Pope, Judge.

Olin Moore III brings this appeal from his conviction and sentence of driving under the influence of alcohol. Held-.

1. Phillip Crow testified that his van was struck in the rear by a hit/run vehicle on Buford Highway near North Druid Hills Road in DeKalb County while he was stopped to make a left-hand turn into T. J. Applebee’s. He saw the offending car “coming around” to his left in his rearview mirror and saw a black male driving the car, but he could not tell if any other people were in it. Crow got a tag number of the car, a white 1986 Chrysler LeBaron convertible, and later saw the car at a gasoline service station which was within a mile of the scene of the hit/run accident. He testified: “[T]he tag number matched and the damage in the front and the paint that was left on the back of the van on the tire mount was also white, matched the car.” The view of this vehicle for a second time by Crow was “within 30 minutes” of the hit/run. Crow could not identify anyone as the driver of the car and was only able to identify the vehicle itself to the investigating officer.

The arresting officer, R. A. Tribble of the DeKalb Police Department, testified that on April 27, 1987, at approximately 11:30 p.m. he received a radio dispatch for a hit/run accident in front of T. J. Applebee’s. He went to the scene, met Crow and others, and made some investigation, later driving to a service station at Buford Highway and North Druid Hills Road. The officer estimated the distance from the hit/run scene to the service station at one-half block. He “encountered” a white convertible and appellant who was “standing by the vehicle when I pulled up.” The officer did not “encounter” anyone else there with the vehicle and appellant. He motioned for appellant to walk toward him and noticed his gait was unsteady and, as he got close enough, smelled the odor of alcohol. He placed him under arrest (in the back of the patrol car) and read appellant the implied consent warning. The officer concluded that appellant was drunk but gave him no field test at the scene. The officer asked appellant whether he owned the car but has no recollection of asking appellant whether he was driving, and appellant never volunteered that information. Officer Tribble then turned appellant over to another uniformed officer who transported him to the DeKalb County jail. Officer Tribble made no inquiry of the service station attendant nor did he go inside the building to see if anyone there may have been an occupant of the car. Officer Tribble explained: “I was in a non-screened unit and I could not secure [appellant] and leave him without the possibility ... of allowing him to leave the scene again. [Also,] I believed from the indication given to me by . . . Crow at the . . . Shell station that he was indicating that he was pointing to [appellant] and saying, yes, that’s the one, which gave me the indication that he was identifying [appellant] and the vehicle as the hit and run.”

“At the close of the State’s evidence, appellant moved for and was denied a directed verdict of acquittal. Appellant presented no evidence. He contends that the evidence is insufficient to support his conviction because there is no direct evidence that he was the driver of the [white Chrysler convertible]. It is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence. It is not necessary that the circumstantial evidence exclude every . . . inference or hypothesis except guilt of an accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt. The jury itself decides whether every reasonable hypothesis except that of guilt of the defendant has been excluded. The jury was in the best position to judge the credibility of the witnesses. The evidence in this case did not demand a verdict of acquittal and was altogether sufficient for any rational trier of fact to have found appellant guilty of the [crime] charged beyond a reasonable doubt.” (Cits, and punctuation omitted.) Braswell v. State, 173 Ga. App. 588, 589 (327 SE2d 558) (1985). E.g., State v. Hill, 178 Ga. App. 669 (344 SE2d 491) (1986); Russell v. State, 174 Ga. App. 436 (2) (330 SE2d 175) (1985); Lawrence v. State, 157 Ga. App. 264 (1) (277 SE2d 60) (1981). Cf. Scott v. Mayor &c. of Athens, 111 Ga. App. 173 (140 SE2d 922) (1965) (circumstantial evidence that alleged violations were committed by a “negro male” driving an auto identified as one belonging to defendant (who was a negro male), and defendant admitting the auto belonged to him, was insufficient, without more, to warrant a conviction).

2. Appellant’s second enumeration of error — that the trial court erred in sustaining the State’s objection to appellant’s evidence that the automatic suspension of his driver’s license for refusal to take the implied consent test had been rescinded by the Department of Public Safety — was abandoned at oral argument in light of the holding in Sheffield v. State, 184 Ga. App. 141 (1) (361 SE2d 28) (1987).

3. Appellant’s final enumeration assigns error to the trial court’s refusal to give three written requests to charge relating to circumstantial evidence. “The record clearly shows that the charge as given by the trial court amply covered the principle of law contained in [appellant’s] requested instruction [s]. Accordingly, [appellant’s] contention it without merit because ‘(w)here the charge actually given substantially covers the principle articulated in a request to charge, the failure of the trial court to charge in the exact language requested is not error.’ [Cits.]” Burrell v. State, 171 Ga. App. 648, 651 (320 SE2d 810) (1984). E.g., Swann v. State, 169 Ga. App. 429 (1) (313 SE2d 131) (1984); Russell v. State, 160 Ga. App. 290 (4) (287 SE2d 286) (1981); Howard v. State, 153 Ga. App. 171 (3) (264 SE2d 704) (1980). The recent holding in House v. State, 184 Ga. App. 724 (4) (362 SE2d 429) (1987), does not require a different result.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur..

Decided March 2, 1988

Rehearing denied March 16, 1988.

Robert P. Wilson, W. John Wilson, for appellant.

Ralph T. Bowden, Jr., Solicitor, J. Russell Mayer, Assistant Solicitor, for appellee.


author: Carley, Judge.

text:
    75111.
    CUMRINE v. IPG, INC.
    (367 SE2d 581)
   Carley, Judge.

Appellee-defendant is a closely-held professional corporation engaged in the practice of architecture in Valdosta, Georgia. Until his retirement in 1984, appellant-plaintiff was a principal shareholder in appellee. In 1980, appellee and its shareholders, including appellant, entered into a “buy-sell” agreement. The “buy-sell” agreement provided that either upon the termination of a shareholder’s interest by a majority vote of appellee’s board of directors or upon the retirement of a shareholder, appellee would buy back that shareholder’s stock. The agreement specified employment of a different formula for calculating the valuation of a shareholder’s stock, depending upon whether the shareholder’s interest was being terminated by action of appellee’s board of directors or the shareholder was retiring. A higher valuation of a shareholder’s stock would result from application of the retirement formula than would result from application of the termination formula. There was consideration for the placement of a higher valuation upon the stock of a retiring shareholder. The agreement provided that, by the giving of 60 days’ notice of his retirement “and the acceptance of the note of [appellee] for his shares, such [retiring] shareholder agrees that for a period of five years following the sale of said shares, he will not engage, directly or indirectly, in the practice of architecture within the State of Georgia or within a radius of 300 miles of the City of Valdosta, whichever is the greater, either as an individual practitioner or as an employee of any firm, company, or corporation, engaged in rendering architectural services. Provided, nevertheless, that, with the written permission of [appellee], such retired shareholder may engage as a self-employed individual in the rendering of any specialty supportive service of architecture so long as such endeavor would not be competitive to [appellee’s] general practice of architecture; it being the intent and purpose of the increased consideration paid to such retiree . . . that the good will of the retiree as a former principal of [appellee] and as a retiree from [appellee] shall continue to accrue to [appellee].”

In 1982, appellee experienced a decreased demand for appellant’s services as a writer of architectural specifications. As the result, the parties entered into an oral agreement, whereby appellant was to work only “half-time” for appellee. In a letter which confirmed the terms of this oral agreement, the president of appellee wrote the following to appellant: “We understand and accept that you expect, on your personal time, to write specifications for other architects on a contract basis. On this work for other offices, you will not allow yourself to be considered a member of the other office’s staff, nor allow your name to be listed as a resource or consultant for promotional purposes of other firms. . . . Based on existing conditions and attitudes, we expect the working relationship defined in this letter to remain valid until your retirement at age 65.” Thereafter, beginning in early 1983, appellant maintained two separate offices. He kept his office with appellee and, in order to pursue the writing of specifications for other architects on a contract basis, he rented additional office space. This additional office space was rented from another Valdosta architectural firm and was located on the premises of that other firm’s own business office. Appellant did not inform appellee that he was renting office space in the office of another Valdosta architectural firm and he continued to operate out of both offices until his retirement from appellee became effective in September of 1984. In a letter which confirmed the acceptance of appellant’s retirement, appellee’s president stated that appellant’s “stock will be repurchased in accordance with our agreement with you. We will request an accountant to make an evaluation after which we will establish a payment schedule with you.”

After his retirement, appellant continued to maintain and to work out of his office at the other Valdosta architectural firm. In October of 1984, appellee first learned that appellant was maintaining another office. The president of appellee informed appellant that the maintenance of an office on the business premises of another architectural firm was not acceptable to appellee and he demanded that appellant cease any association with that other architectural firm. When appellant refused these demands, appellee’s board of directors purported to terminate appellant’s interest in appellee. Thereafter, appellee refused to place the higher value on appellant’s shares pursuant to the retirement formula provided in the “buy-sell” agreement and gave appellant’s stock the lower valuation in accordance with the formula provided in the termination provision of the agreement.

Appellant filed this suit, alleging that appellee had violated the “buy-sell” agreement through its refusal to buy his shares at the higher valuation under the retirement provision thereof. Appellant also sought the appointment by the trial court of an independent auditor for the valuation of his stock. Appellee answered, denying the material allegations of appellant’s complaint. Cross-motions for summary judgment were filed. The trial court granted summary judgment in favor of appellee and denied appellant’s motion. The result was a money judgment in appellant’s favor for an amount which represented the lesser value of his stock as calculated under the termination formula of the “buy-sell” agreement. Appellant appeals from the trial court’s order on the cross-motions for summary judgment.

1. Appellant enumerates the trial court’s rulings on the cross-motions for summary judgment as error, contending that those rulings evince an erroneous construction of the applicable provision of the “buy-sell” agreement for the determination of the value of his shares. Appellant urges that the trial court erred in construing the termination provision rather than the retirement provision of the contract as the applicable provision pursuant to which the valuation of his shares was to be made. Appellee, on the other hand, contends that, the trial court correctly interpreted the contract and, based upon that construction, properly granted summary judgment in its favor and denied appellant’s motion for summary judgment. According to appellee, appellant’s continuing maintenance of his independent office and his continuing engagement in the writing of architectural specifications without appellee’s written consent showed that appellant was not in compliance with the non-competitive covenant of the retirement provision of the “buy-sell” agreement. Thus, according to appellee, appellant was not entitled to have his shares valued pursuant to the retirement formula but was entitled only to the lesser value based upon the authorized termination of his interest in appellee.

Under the terms of the retirement provision of the “buy-sell” agreement, it was only “[b]y the giving of [60-days’] notice and the acceptance of the note of [appellee] for his shares, [that] such [retiring] shareholder agree [d] that for a period of 5 years following the sale of said shares, he [would] not engage, directly or indirectly, in the practice of architecture within the State of Georgia or within a radius of 300 miles of the City of Valdosta, whichever is the greater. . . .” (Emphasis supplied.) Pursuant to these terms, appellee would have no right whatsoever to insist that appellant, as a retiree, cease to engage in any act of competition until such time as appellee itself had offered appellant the higher valuation for his shares and appellant had accepted that offer. Nothing in the agreement contemplates that appellant’s non-competition, as a retiree, is to be a condition precedent to appellee’s own obligation to calculate and to offer appellant the greater valuation for his shares, which valuation the agreement unconditionally provides is to be afforded to a retiree for his shares. Instead, the agreement clearly provides that appellant’s post-retirement non-competition is only to be considered as the contemplated consideration which supports appellee’s unconditional offer to purchase appellant’s shares at the greater valuation. Appellee cannot insist that it is entitled to receive that consideration until such time as appellant is contractually obligated to provide it, which will be when appellee’s offer to appellant, as a retiree, of the higher valuation has been accepted and appellee has purchased appellant’s shares at that greater valuation.

If, after appellee has made its required offer of the higher valuation to appellant as a retiree, appellant then refuses to sell appellee his shares, appellee might be authorized to obtain appellant’s shares pursuant to the termination provision of the contract. However, appellant’s retirement having already been tendered and accepted by appellee, appellee would have no right under the agreement to obtain appellant’s shares by its unilateral termination, but would be required to offer appellant the greater valuation for his shares as contemplated under the retirement provision of the contract. The retirement provision of the “buy-sell” agreement unequivocally provides that the “sale and settlement of the shares held by such retiring member shall proceed” based upon the higher valuation of appellant’s shares. (Emphasis supplied.) “The word ‘shall’ is ... a word of command. . . .” Favors v. Travelers Ins. Co., 150 Ga. App. 741, 746 (1) (258 SE2d 554) (1979). As a retiree, appellant “shall” be afforded the higher valuation for his shares and agrees to curtail his competition only after he has been offered and has accepted the higher valuation for his shares.

It follows that the trial court erroneously construed appellant’s non-competition as a condition precedent to appellee’s contractual obligation to offer appellant an amount reflecting the greater valuation for his shares. Appellant’s non-competition is correctly construed as the consideration which supports appellee’s offer to appellant, as a retiree, of the greater valuation for his shares. Should appellant accept appellee’s offer of the greater valuation but thereafter engage in activities which appellee considers to be in violation of the non-competition covenant, only then would appellee be authorized to seek the enforcement of the covenant that was the consideration for the higher valuation placed on appellant’s shares. Under the present posture, however, it is appellee rather than appellant who is in violation of the “buy-sell” agreement. Appellee is in breach of its contractual obligation to offer appellant the greater valuation for his shares and it cannot defend that breach by reliance upon appellant’s acts of alleged competition. It follows that the trial court erred in granting summary judgment in favor of appellee and in denying appellant’s motion as to the rights and obligations as they currently exist under the “buy-sell” agreement.

2. Several enumerations of error relate to the extent to which the non-competition covenant is enforceable by appellee and against appellant. However, these enumerations raise issues which cannot be addressed and answered in the present case. Appellee did not seek to enforce the non-competition covenant against appellant. Instead, appellee erroneously sought only to rely upon appellant’s alleged violation of the non-competition covenant as a defense to appellant’s efforts to enforce its contractual obligation to offer him the higher valuation for his shares. The trial court accepted appellee’s construction of the non-competition covenant as a condition precedent to appellant’s entitlement as a retiree to the higher valuation. However, as we have held in Division 1, appellee cannot rely upon the non-competition covenant and appellant’s alleged breach thereof as a basis for avoiding its monetary obligation to appellant as a retired shareholder. Should appellant accept the higher valuation for his shares mandated by this opinion and thereafter continue to engage in his current activities, appellee will then be entitled to seek, if it wishes, the equitable enforcement of the covenant. The extent to which appellee may be entitled to the future enforcement of the covenant as consideration for appellant’s acceptance of the higher valuation of his shares must obviously await determination in a proceeding in which that issue is properly raised and ruled upon. All that we can hold in this opinion is that, regardless of whether appellant’s current activities would, if repeated at some point in the future, violate the non-competition covenant and thereby entitle appellee to equitable relief, those activities do not presently entitle appellee to avoid its existing contractual obligation to offer appellant, as a retiree, the higher valuation for his shares.

3. Appellant further enumerates as error the trial court’s refusal to appoint an independent auditor for the calculation of the value of his stock. However, the “buy-sell” agreement specifically provided that “[i]n the event of any disagreement as to calculation, the Certified Public Accountant [CPA] regularly engaged by [appellee] shall make the determination of such amounts and the CPA’s findings shall be binding on all parties.” “Where the parties to a contract agree that the decision of a third person on a matter connected with the execution of a contract shall be final and conclusive, his decision is binding on the parties, as to those matters he is authorized to determine, except in the case of fraud, gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment. [Cit.]” Skinner v. Smith, 120 Ga. App. 35, 36 (169 SE2d 365) (1969). The record reflects that appellee’s CPA has made the determination of the higher and the lower valuation of appellant’s shares. Appellant neither alleged nor proved that, in so doing, appellee’s CPA had committed fraud or gross mistake or had failed to exercise an honest judgment. Accordingly, the trial court did not err either in holding that the calculations of appellee’s CPA were binding upon appellant or in failing to appoint an independent auditor to make the valuation of appellant’s shares.

Decided March 16, 1988.

John T. McTier, for appellant.

J. Converse Bright, for appellee.

4. With regard to the construction of the “buy-sell” agreement and the rights and obligations thereunder, the trial court erred in granting summary judgment in favor of appellee and in failing to grant summary judgment in favor of appellant. With regard to the binding effect of the calculations of appellee’s CPA and appointment of an independent auditor, the trial court correctly denied appellant’s motion for summary judgment and granted summary judgment in favor of appellee.

Judgment affirmed in part and reversed in part.

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


text:
    75561.
    WALLS, INC. v. ATLANTIC REALTY COMPANY et al.
    (367 SE2d 278)
   Carley, Judge.

Appellee-third-party plaintiff Atlantic Realty Company (Atlantic) hired Beers Construction Company (Beers) as the general contractor for the renovation of a building that it owned. The general contract between Atlantic and Beers provided that the latter would indemnify and hold the former harmless as to all claims arising out of or in connection with the performance of the contract. The general contract also specified that, from each subcontractor, Beers would procure, as additional protection for Atlantic, an independent indemnification and hold harmless agreement, whereby the subcontractor would agree to indemnify Atlantic. In addition to this provision requiring Beers to secure an independent indemnity agreement from each subcontractor, the general contract also provided that “ [a]ll work performed for [Beers] by a Subcontractor shall be pursuant to an appropriate written agreement between [Beers] and the Subcontractor which contains provisions . . . indemnifying [Atlantic] in accordance with [the indemnity provisions] hereof.”

Beers subcontracted with appellant-third-party defendant Walls, Inc. (Walls) for the installation of drywall in the renovated building. Allen Jones, an employee of Walls, was killed in a fall during the renovation of the building. Jones’ widow brought suit against Atlantic and another defendant, alleging that their negligence was the proximate cause of her husband’s death. Atlantic then filed this third-party action against Walls. The third-party complaint alleged that Walls had agreed to indemnify and to hold Atlantic harmless as to claims arising out of Walls’ performance of the drywall work in the renovated building. Walls answered the third-party complaint, denying the existence of any agreement on its part to indemnify Atlantic. Cross-motions for summary judgment were filed. The trial court denied Walls’ motion, but granted summary judgment in favor of Atlantic. Walls appeals from the trial court’s order granting summary judgment in favor of Atlantic and denying its motion for summary judgment.

1. The facts are undisputed and the only issue involved is one of contractual interpretation. Beers never procured an agreement from Walls, independent of the subcontract, whereby Walls made an express and direct promise as to the indemnification of Atlantic. The only express promise as to the direct indemnification of Atlantic is that which was made by Beers in the general contract. Accordingly, with regard to the procurement from Walls of an indemnification agreement independent of the subcontract, Beers may have breached a contractual obligation owed to Atlantic. However, the subcontract that was entered into between Beers and Walls does contain Walls’ express agreement to “perform all work” in the restoration of the building “in accordance with” the general contract between Beers and Atlantic, which general contract “hereby become [s] a part” of Walls’ subcontract with Beers. Atlantic urged and the trial court found that this provision of the subcontract was sufficient to incorporate all of the provisions of the general contract into the subcontract and that the legal effect of this incorporation by reference was to obligate Walls to indemnify Atlantic directly, just as Beers had agreed to do in its general contract with Atlantic.

“As a matter of contract law, incorporation by reference is generally effective to accomplish its intended purpose where . . . the provision to which reference is made has a reasonably clear and ascertainable meaning. [Cits.]” Binswanger Glass Co. v. Beers Constr. Co., 141 Ga. App. 715, 717 (2) (234 SE2d 363) (1977). See also Hartline-Thomas v. Arthur Pew Constr. Co., Inc., 151 Ga. App. 598, 599 (260 SE2d 744) (1979). Here, the clear intent was that the general contract, in its entirety, be incorporated into and become a part of the subcontract which Walls agreed to enter. Accordingly, incorporated by reference into that subcontract was the provision of the general contract which had specified that a subcontract was itself to contain a provision whereby Atlantic would be indemnified by the subcontractor. Accordingly, the subcontract itself contained, as one of its provisions, Walls’ agreement that “[a]ll work” that it was to perform on the renovated building “shall be pursuant to an appropriate written agreement. . . which contains provisions . . . indemnifying [Atlantic] in accordance with [the indemnity provisions of the general contract, which indemnity provisions are themselves incorporated by reference into the subcontract].” Thus, the subcontract itself evinces both Walls’ agreement to indemnify Atlantic and the terms of that indemnification agreement. Undoubtedly, an intent as to the imposition upon and the assumption by Walls, as the subcontractor, of an obligation to indemnify Atlantic, as the owner, could have been more clearly evinced by the assertion of an express provision to that effect into the subcontract. That, from the perspective of hindsight, however, it is possible to conclude that a contractual intent could have been more clearly expressed is not a basis for holding that the manifestation of that intent cannot be accomplished through resort to incorporation by reference. Accordingly, the trial court correctly held that, through incorporation by reference, the parties to the subcontract accomplished their intended purpose of including in their subcontract a provision whereby Walls agreed to the indemnification of Atlantic.

However, incorporation by reference would show only that the subcontract contained such an indemnity provision. It would not necessarily show the legal entitlement of Atlantic, who was not an immediate party to the subcontract, to secure the enforcement of that provision. “In the present case, the owner was not a named party to the contract between the subcontractor and general contractor, did not sign the contract, nor become obligated in any way thereunder.” Robertson v. Laughlin Insulation Co., 134 Ga. App. 509, 511 (215 SE2d 274) (1975). As a general rule, “one not in privity of contract with another cannot maintain an action against him for breach of the contract. . . .” R. F. Burton Co. v. Southern Marine Assoc., 130 Ga. App. 111, 112 (1) (202 SE2d 544) (1973). OCGA § 9-2-20 (b) does provide, however, that “[t]he beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.” OCGA § 9-2-20 (b). Accordingly, although the subcontract does contain a provision whereby Walls agreed to indemnify Atlantic, Atlantic would be entitled to enforce that provision against Walls if, but only if, Atlantic is a third-party beneficiary thereof. “Although as a general rule an action on a contract is brought by a party to it, the beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract. [Cit.]” Somers v. Avant, 244 Ga. 460, 463 (261 SE2d 334) (1979).

“In order for a third party to have standing to enforce a contract under [OCGA § 9-2-20 (b)] it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient. [Cits.]” (Emphasis supplied.) Backus v. Chilivis, 236 Ga. 500, 502 (II) (224 SE2d 370) (1976). Accordingly, the mere fact that Atlantic might benefit from Walls’ performance of any particular provision of the subcontract will not suffice to entitle Atlantic to claim the right to secure enforcement of that provision. See generally McWhirter Material Handling Co. v. Ga. Paper Stock Co., 118 Ga. App. 582 (164 SE2d 852) (1968); Stein Steel & Supply Co. v. Goode Constr. Co., 83 Ga. App. 821 (65 SE2d 183) (1951). “There must be a promise by the promisor to the promisee to render some performance to a third person and it must appear that both the promisor and the promisee intended that the third person should be the beneficiary. [Cits.]” (Emphasis supplied.) Southeast Grading v. City of Atlanta, 172 Ga. App. 798, 800 (1) (324 SE2d 776) (1984). See also Donalson v. Coca-Cola Co., 164 Ga. App. 712, 713 (2) (298 SE2d 25) (1982). As discussed, the subcontract, through incorporation by reference, does contain Walls’ promise to indemnify Atlantic. To determine whether Walls and Beers further intended that Atlantic would be a third-party beneficiary of that promise requires, however, a consideration of the entirety of the subcontract. “ ‘The rights of a third person to sue on a contract made for his benefit depend on the terms of the agreement and are no greater than those granted by the contract as intended by the parties thereto. To recover the beneficiary must bring himself within its terms and construction of the contract is involved. . . .’ [Cit.]” Deal v. Chem. Constr. Co., 99 Ga. Ap. 413, 417 (1) (108 SE2d 746) (1959).

This subcontract, when construed in its entirety, clearly indicates that neither party thereto intended that Atlantic be the third-party beneficiary of any promise made therein by Walls to Beers, either as to the indemnification of Atlantic or as to any other promise contained therein. Paragraph 30 of the subcontract specifically provides that Beers and Walls “agree . . . [t]his subcontract is solely for the benefit of the signatories hereto.” (Emphasis supplied.) Atlantic was not a signatory to the subcontract. Only Beers and Atlantic were. It follows that, under the express terms of the subcontract, Atlantic cannot be considered a third-party beneficiary of any indemnity provision therein, even though such an indemnification provision exists and regardless of the terms thereof. The intent of the parties to this particular subcontract was to the effect that no others benefit from it and this intent could scarcely have been more clearly expressed. “It must appear that both parties to the contract intended that the third person should be the beneficiary. [Cits.] There is nothing in the contract between [Walls] and [Beers] to indicate that it was intended for [Atlantic’s] benefit as a third party beneficiary. Thus, [Atlantic] had no standing to bring a direct action on the contract as a third party beneficiary.” Donalson v. Coca-Cola Co., supra at 713-714 (2). It follows that the trial court erred in granting summary judgment in favor of Atlantic and in denying Walls’ motion.

Decided March 16, 1988.

Michael S. Huff, Reagan W. Dean, for appellant.

Guy J. Notte, Harris C. Bostic, James B. Hiers, Meade Burns, Donald F. Daugherty, John A. Christy, for appellees.

2. Remaining enumerations of error are moot by virtue of our holding in Division 1 of this opinion.

Judgments reversed.

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


text:
    75659.
    HAXHO v. THE STATE.
    (367 SE2d 282)
   Sognier, Judge.

Appellant was convicted of trafficking in cocaine and he appeals.

1. Appellant contends the evidence is not sufficient to support the verdict. The evidence disclosed that Paul Markonni, a federal DEA agent, was in the Miami, Florida, airport waiting to board a plane to Atlanta. About ten minutes before departure time he observed Luis Arbelaez and appellant walk rapidly to the boarding gate, give their tickets to the flight attendant and board the plane. Markonni asked the flight attendant to let him look at the tickets, and noted that they were purchased with cash a few minutes earlier, and were one-way tickets to Philadelphia, actions which Markonni perceived as fitting the drug courier profile. Markonni boarded the plane and on deplaning in Atlanta unexpectedly met James Simmons, a member of the Henry County sheriff’s department assigned to the airport task force for drug enforcement. Markonni told Simmons he had a couple of “live ones,” and a short time later they observed Arbelaez and appellant coming from a bank of telephones. Arbelaez went into the snack bar and Markonni stopped appellant; Markonni identified himself and asked to speak to appellant, who agreed, and thereafter consented to a search of his person. No drugs were found on appellant and he reboarded the plane for continuation of his flight. In the meantime Simmons had approached Arbelaez in a similar manner; when he allegedly gave Simmons a false name, Simmons arrested him and took him to a small room where Arbelaez was searched. A wadded up newspaper with a small bag of cocaine inside was found in Arbelaez’s inside coat pocket, and when asked if he had any other cocaine, he gave Simmons a small packet of cocaine from his billfold. After Markonni was notified of these actions he boarded the airplane and arrested appellant.

Both Arbelaez and appellant testified that he had no knowledge of the cocaine in Arbelaez’s possession. He testified that he had purchased the cocaine for his own use three or four days before going on his planned trip to New York. Appellant testified that the tickets, purchased in the name of Mike and Joe Colgan, had been reserved by Mike Colgan in Philadelphia for use by Joe Colgan and appellant. When Joe Colgan could not go to Philadelphia and appellant learned that Arbelaez planned on going to New York the following day, appellant asked him if he wanted to go to Philadelphia with appellant, who was going there on business. Arbelaez said okay, which is the only reason the two men were travelling together.

Appellant argues that this evidence is not sufficient to support his conviction, because there is nothing to show that he knew of the cocaine or was a party to the crime. The indictment charged that Arbelaez and appellant violated OCGA § 16-13-31 (a) (1) in that they “did knowingly bring into this state and was (sic) knowingly in actual possession of more than 28 grams of a mixture with the purity more than ten percent cocaine.”

Since appellant was not in actual possession of the cocaine he could only be a party to the crime if he intentionally aided or abetted Arbelaez so as to be in constructive possession of the cocaine. Crenshaw v. State, 183 Ga. App. 527, 528 (359 SE2d 419) (1987). But see Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988). Here, as in Crenshaw, evidence of appellant’s guilt was entirely circumstantial, and to warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the defendant. Id. With a few minor variations, the factual situation in this case is the same as that found in Crenshaw, i.e., two men were travelling together, and one had no contraband while the other had contraband strapped to his leg. In Crenshaw we held that the mere fact that Crenshaw and another man were travelling together was not sufficient to show that Crenshaw was a party to the crime, even if he may have known that his companion was carrying drugs. While such evidence in the instant case may have raised a suspicion that appellant was a party to the crime, mere suspicion is not sufficient to support a conviction. Id. at 528-529. Other than circumstantial evidence that appellant may have known that Arbelaez was in possession of cocaine, there was no proof of any criminal participation by appellant in Arbelaez’s possession of cocaine. Accordingly, the evidence is not sufficient as a matter of law to sustain appellant’s conviction of trafficking in cocaine, and his conviction must be reversed. Crenshaw, supra at 529. While our decision here is based upon Crenshaw, we note that Lockwood, supra, held that constructive possession is not sufficient to support a conviction for violating OCGA § 16-13-31 (a) (1), supra.

2. In view of our decision in Division 1, we need not consider appellant’s remaining enumeration of error.

Decided March 16, 1988.

James K. Jenkins, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur in the judgment only.


text:
    75804.
    LANIER v. CITIZENS STATE BANK.
    (367 SE2d 585)
   Pope, Judge.

This appeal arises out of a complaint brought by appellee Citizens State Bank for confirmation of sale under power contained in a deed to secure debt. The subject real property was sold on the courthouse steps to the highest bidder for $73,000 after appellant Lanier had defaulted on a promissory note to the bank in the amount of $90,000. The bank sought confirmation of the sale so it could pursue its claim for deficiency judgment pursuant to OCGA § 44-14-161. Appellant’s sole defense to the complaint was that the sale did not bring the true market value of the property. Appellant appeals the order confirming the sale on the ground that (1) the findings of fact and conclusions of law were without foundation and in error and (2) that the ruling was not supported by the facts.

The order confirming the sale gave a detailed recitation of facts concerning the original debt, appellant’s default on that debt and the legal process and notice by which the bank conducted the sale. In a separate section, the court concluded as a matter of law that proper notice of foreclosure was given to the debtor. We find no error or lack of evidence to counter the conclusion that the foreclosure proceedings were in order. However, that was not the issue raised by appellant. In an action to confirm a foreclosure sale the court must find not only that the foreclosure proceedings were in order but must also find “it is satisfied that the property so sold brought its true market value on such foreclosure sale.” OCGA § 44-14-161 (b). The order in this case is insufficient because it did not go far enough in its findings of fact and conclusions of law. A judgment in an action to confirm a foreclosure sale is inadequate if it contains no specific finding concerning the sufficiency of the price brought at sale. Pruitt v. First Nat. Bank of Habersham, 142 Ga. App. 100 (235 SE2d 617) (1977). Accordingly, the judgment of the trial court is vacated and the case remanded with direction to enter a new judgment in accordance with the requirements of OCGA § 44-14-161 and OCGA § 9-11-52. Accord PSI Pneumatic Structures v. C & S Newnan Bank, 159 Ga. App. 766 (285 SE2d 576) (1981); Mathis v. Citizens DeKalb Bank, 157 Ga. App. 693 (278 SE2d 500) (1981). All rights of appeal from this new judgment are preserved.

Decided March 16, 1988.

Robert H. Baer, for appellant.

John J. Ossick, Jr., for appellee.

Judgment vacated and case remanded with direction.

McMurray, P. J., and Benham, J., concur.


text:
    75815.
    WINKFIELD v. THE STATE.
    (367 SE2d 283)
   Pope, Judge.

Defendant Garcia Winkfield was convicted for trafficking in cocaine and possession of cocaine with intent to distribute. Defendant Winkfield was indicted jointly with Bobby Harold Dansby, who pled guilty to these offenses. The evidence considered in the light most favorable to the prosecution shows Dansby sold cocaine to undercover agents on several occasions in December 1986 in Atlanta. On December 11, Dansby asked the agents to take him to a phone so he could call his “source” to supply him with more cocaine to sell to them. He had in his possession a note pad containing the notation “Wink” and a seven digit number. At the public telephone, Dansby made a call and then waited for the telephone to ring back. Dansby then asked the agents to drive him to a Majik Market store on Camp Creek Parkway. There, Dansby used the telephone again and a short time later an automobile arrived. Dansby obtained a package from an unidentified person in the automobile which he then sold to the agents as cocaine. On December 16 the agents went to Dansby’s house to make another purchase. Dansby told the agents he would have to get his “source” and arranged to meet the agents later at West End Mall. Eventually, Dansby drove up in an automobile with defendant Winkfield as a passenger in the front seat. Dansby was arrested in the agents’ automobile as he attempted to make a sale of over twenty-eight grams of cocaine and defendant Winkfield was simultaneously arrested by other officers who were staked out at the location. At the time of arrest, a handgun and another bag containing cocaine were found underneath the car seat and between the feet of defendant Winkfield. Winkfield also had in his possession a telephone beeper assigned by the telephone company to the same number one of the undercover agents had seen written on Dansby’s note pad on December 11. Shortly after Winkfield’s arrest, his two brothers were arrested outside the home of Bobby Harold Dansby. They explained their presence at Dansby’s house by stating defendant Winkfield had dropped them off “at the store” and went off with one they referred to as “Doc,” whom they also referred to as the resident of the house at which they were arrested.

Dansby testified and admitted he ran a “drug house” out of his residence. The State produced a witness who testified he had worked for Dansby as an errand runner and doorman. This witness testified defendant Winkfield visited Dansby on numerous occasions carrying a bag. Prior to these visits, he would hear Dansby state that he was out of drugs to sell. After Winkfield arrived and met with Dansby for ten to fifteen minutes in a closed room, Dansby would again have a supply of drugs to sell.

1. Defendant’s first two enumerations of error raise the issue of the sufficiency of the evidence to sustain the guilty verdict. The only evidence presented by the defendant was the testimony of Dansby, who took the entire “rap” for the offense. Dansby denied obtaining drugs from the defendant and identified another individual as his source. Dansby testified he ran into defendant by chance on his way to West End Mall to meet the undercover agents for the sale. Winkfield asked Dansby about money owed him for work done on Dansby’s automobile. When Winkfield told Dansby he needed the money because his car was broken down, Dansby offered him a ride. According to Dansby, Winkfield was simply waiting for him in his automobile while he made the transaction with the undercover agents.

Defendant argues that his presence at the scene of the drug deal and the presence of the additional cocaine in the car in which he was waiting are insufficient to support his conviction. However, defendant ignores the fact that his mere presence at the scene was not the only inculpatory evidence presented by the prosecution. The task of an appellate court is not to weigh the evidence but to consider all the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). This includes the assumption that the jury did not believe the exculpatory testimony. Cosby v. Jones, 682 F2d 1373, 1382 (11th Cir. 1982). The remaining inculpatory evidence must then be sufficient to allow a reasonable juror to find the defendant guilty beyond a reasonable doubt. In Cosby, the defendant’s mere possession of stolen goods was not sufficient to support his conviction of burglary. Here, however, the testimony of Dansby’s doorman, together with all other circumstantial evidence presented in this case, would permit a juror to find the defendant guilty beyond a reasonable doubt.

Decided March 16, 1988.

Murray M. Silver, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Alfred D. Dixon, Richard E. Hicks, Assistant District Attorneys, for appellee.

2. Defendant’s remaining enumerations of error concern the response of one of the jurors as the jury was polled. Before the polling of the jury commenced, the jury foreman asked the court if the polling could be done in private. The judge informed him that the polling could not be done privately. In response to the question, “Is this your verdict on [the two indictments]?” each juror answered affirmatively. In response to the question, “Was this your verdict in the jury room?” one juror answered, “Yes and no.” Yet, in response to the very next question, “Is this now your verdict?” that juror again answered in the affirmative. The trial judge explained to the juror that the purpose of polling the jury is to guarantee the verdict is unanimous, as required by law. The judge further stated that if the verdict is not unanimous, “Í would respectfully request that you return to the jury room and continue to deliberate.” After the explanatory remarks by the judge, the juror was again polled and answered affirmatively to each of the three questions asked. Before dismissing the jury, the record reflects the trial judge held a private conference with the foreman of the jury to confirm whether the verdict was indeed unanimous. Upon returning to the courtroom, the content of the conference between the judge and the jury foreman was discussed on the record. The jury foreman explained: “There was just a concern on the part of the majority of the jurors that their balloting inside the jury room and the fact that we were required to render a unanimous decision be kept confidential.” The judge stated that he had explained to the foreman “when the jury is polled you must stand up for your verdict. . . .” The foreman went on to confirm that the verdict was unanimous among all jurors. When considered in the context of the entire record, it is obvious that the statement by the judge that a juror “must stand up” for the verdict was simply an explanation by the judge that a juror must respond in open court to the polling of the jury and cannot keep his vote confidential. Defendant’s argument that the judge’s comments coerced the jury into arriving at a unanimous verdict is unfounded.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    76154.
    BUXTON v. THE STATE.
    (367 SE2d 286)
   Pope, Judge.

John Max Buxton brings this appeal from his conviction and sentence of aggravated assault (4 counts), theft by taking a motor vehicle, and armed robbery (4 counts). His sole enumerated error is the trial court’s denial of his motion for directed verdict of acquittal. Defendant premises his enumeration upon the asserted lack of corroboration of the testimony of his daughter, a purported accomplice, which implicated defendant as a participant in the subject crimes.

“To authorize a felony conviction on the testimony of an accomplice, it is necessary that the evidence of the accomplice be corroborated [OCGA § 24-4-8], and the corroborating circumstances should be such as, independently of his testimony, to lead to the inference that the defendant is guilty. But it is not required that this corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular. Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict. The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said, as a matter of law, that the verdict is contrary to the evidence.” (Cits, and punctuation omitted.) Waldrop v. State, 221 Ga. 319, 320 (144 SE2d 372) (1965); see Ivey v. State, 91 Ga. App. 455 (1) (85 SE2d 829) (1955).

Defendant does not challenge the adequacy of the corroborating evidence tending to prove the truth of the accomplice’s general testimony. Rather, his attack here is limited to the independent, corroborating evidence tending to prove his identity and participation in the crime. See generally West v. State, 232 Ga. 861 (2) (209 SE2d 195) (1974). The only evidence corroborating defendant’s participation in the crimes sub judice was provided by a microanalyst for the State Crime Lab. He testified that, in his opinion, hair samples taken from a ski mask allegedly used by one of the perpetrators were “similar to the known head hair from [defendant and] could have come from his head, but not to an identifying point.” We find this corroborating evidence, albeit slight, tended to prove defendant’s identity and participation in the crimes and thus was sufficient as a matter of law. Accord, e.g., Smith v. State, 245 Ga. 205 (2) (264 SE2d 15) (1980); Gunter v. State, 243 Ga. 651 (2) (256 SE2d 341) (1979); Harris v. State, 165 Ga. App. 186 (299 SE2d 393) (1983). We further find that any rational trier of fact could have found defendant guilty of the crimes listed above beyond a reasonable doubt.

Decided March 16, 1988.

John W. Knight, for appellant.

Hobart M. Hind, District Attorney, Melodie B. Swartzbaugh, Earl Jones, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    76164.
    NATIONAL EQUIPMENT SALES, SERVICE & SUPPLIES, INC. v. HAMRICK MANUFACTURING & SERVICES, INC.
    (367 SE2d 287)
   Pope, Judge.

Plaintiff Hamrick brought this action against defendants National and its president, William Locke, seeking the balance due from defendant National’s purchase of an “uncaser machine.” Defendants answered and counterclaimed. A settlement agreement was tentatively reached but not consummated when a disagreement over its terms arose. Defendants then moved for summary judgment on the following grounds: (1) to enforce the settlement agreement, (2) plaintiff’s liability for breach of said agreement, (3) to dismiss plaintiff’s complaint against defendant Locke, and (4) to strike those portions of plaintiff’s complaint seeking recovery of interest and attorney fees. The trial court granted the motion dismissing defendant Locke and striking plaintiff’s claim for attorney fees; the remaining grounds were denied. Defendant National brings this direct appeal and enumerates as error the trial court’s “sua sponte granting summary judgment to plaintiff” on the issues denied to defendant. However, although the trial court made several findings of fact, we find the record entirely devoid of any evidence showing the grant of summary judgment in favor of plaintiff. Cf. Cruce v. Randall, 245 Ga. 669 (266 SE2d 486) (1980), aff’g 152 Ga. App. 183 (1) (262 SE2d 488) (1979).

We note initially that plaintiff did not appeal the grant of partial summary judgment against it. Rather, the only appellant in this case is defendant National. The only alleged errors cited by National relate to the partial denial of its summary judgment motion. “[T]he grant of a motion for summary judgment. . . will not, standing alone, necessarily authorize the initiation of a direct appeal therefrom by any party to the . . . case. An appeal must be filed by one who has standing to pursue it. OCGA § 9-11-56 (h) gives a losing party [i.e., the party against whom summary judgment has been entered] the right to a direct appeal from an order granting summary judgment on any issue or as to any party even though the judgment is not final. Obviously, the plaintiff in the instant . . . action is a losing party as to the grant of [a portion of defendants’] motion. However, unless [defendant National] is also a losing party as to that [portion of the] order, [it] has no standing to file a direct appeal therefrom. Absent a viable ancillary direct appeal, this court . . . lack[s] jurisdiction to consider the denial of [the remainder of defendants’] motion for summary judgment.” (Punctuation and cits, omitted.) Shackelford v. Green, 180 Ga. App. 617, 618 (349 SE2d 781) (1986). Clearly, defendant National has no standing to appeal that portion of its summary judgment motion resolved in its favor. See Wallace v. Scott, 164 Ga. App. 129 (1) (296 SE2d 423) (1982). Nor did National raise such issues in this appeal. What we are presented with in this appeal is only the denial of the remaining portion of defendant’s summary judgment motion. Under these circumstances, the denial of that portion of defendants’ motion for summary judgment cannot be considered without a certificate for immediate review and application to this court for permission to appeal. Therefore, the partial denial of defendants’ motion for summary judgment is not properly before us for review, and this appeal must be dismissed. See generally Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980); Weldon v. Southeastern Fid. Ins. Co., 157 Ga. App. 698 (278 SE2d 500) (1981).

Decided March 16, 1988.

Allen R. Hirons, for appellant.

Thomas P. Lenzer, James S. Plackis, William M. Davidson, for appellee.

Appeal dismissed.

McMurray, P. J., and Benham, J., concur.


text:
    76172.
    WILLIAMS v. THEUS.
    (367 SE2d 288)
   Pope, Judge.

This appeal arises from a superior court order dismissing Ida Williams’ appeal of an order of the probate court directing the administrator of her mother’s estate to pay $4,018.10 to Parker Theus, the deceased’s brother. The probate court found that Theus was owed this amount “for work he performed upon the premises . . . owned by Claudia Hutsell during her lifetime and the pleadings of the attorney for the Estate of Claudia Hutsell, Deceased, admitting that the debt is outstanding to Parker Theus, and Parker Theus having appeared in this Court at the proper time after notification with necessary documentation and his debt having been approved by the Court; and it being now made known' to the Court that the obligation of said Estate to Parker Theus has not been paid,” and ordered payment to be made “immediately.”

As best we can determine from the record, it appears that Theus gave timely notice of his claim against the estate. See OCGA § 53-7-92. The claim was approved by the administrator of the estate over Williams’ objections, and the probate court subsequently entered the foregoing order. Williams, a legatee under her mother’s will, appealed this order to the superior court. Theus moved for summary judgment “setting forth that Ida Williams was not a party to this action and did not have sufficient standing at law to file said appeal.” The superior court granted Theus’ motion on the ground that Williams “was not a party to the proceedings and ha[d] no standing to appeal the judgment of the Probate Court under [OCGA §] 9-2-20.” We affirm but for a somewhat different reason.

We surmise that Williams filed the appeal to superior court pursuant to OCGA § 53-7-104: “If the administrator or executor, for any cause, shall decline to litigate any claim, he may assign the claim to a distributee or creditor, who may at his own expense prosecute the same.” The sole question for resolution here is whether Williams, as a legatee, has the right to maintain this appeal against Theus in his capacity as a creditor of the estate. (Theus is also a beneficiary under the will.)

“The general rule on this subject is that creditors and heirs may sue third persons only in the name of the representative of the estate. [Cits.] It is also the law, that,, in the absence of fraud and collusion between the executor and a creditor, a judgment regularly entered in a court of competent jurisdiction in favor of the creditor and against the executor is conclusive upon legatees and creditors, as to all matters adjudicated. [Cits.] Assuming for the present that the judgment attacked by [Williams’ appeal] is regular on its face [but see Fulford v. Sweat & Gaskins, 65 Ga. App. 521, 522 (16 SE2d 102) (1941)], the right of [Williams] to maintain this [appeal] is, on application of the foregoing rulings, dependent upon whether or not it alleges fraud and collusion. Neither of the words ‘fraud’ or ‘collusion’ is found in the [appeal].” Higginbotham v. Adams, 192 Ga. 203, 206 (14 SE2d 856) (1941); Morgan v. Woods, 69 Ga. 599 (1) (1882); Rogers v. Taintor, 93 Ga. App. 54 (1) (90 SE2d 629) (1955). Nor is fraud or collusion in any manner alleged by Williams. Accordingly, we find no basis for reversal of the superior court’s dismissal of this matter due to Williams’ lack of standing. Cf. Butler v. Hicks, 229 Ga. 72 (1) (189 SE2d 416) (1972).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

Decided March 16, 1988.

Robert H. Baer, for appellant.

Maxine H. Wraggs, for appellee.