text:
    A92A1141.
    MANN et al. v. ANDERSON et al.
    (426 SE2d 583)
   Birdsong, Presiding Judge.

Dea Elizabeth Mann and Robert Mann appeal from a judgment based upon a jury verdict in favor of defendants Michael A. Gutzwiller and Union Camp Corporation. The Manns sued for damages arising from injuries sustained by Dea Mann (“Mann”) in a multi-vehicle collision. The collision occurred in dense fog, or dense smoke, or a combination of both, when Mann stopped her car because of diminished visibility and later was hit by her car after Gutzwiller’s car propelled it into her.

According to Mann, she was driving to work one morning when she encountered what she describes as a dense mixture of fog and smoke that almost completely blocked her vision. She slowed and proceeded ahead until she noticed a car on the shoulder that appeared to be backing up on the roadway. She stopped her car on the roadway next to that car. Shortly after that her car was struck from the rear by Anderson’s car, and she got out of her car. She was not injured by this collision, but she did not immediately leave the roadway. Instead, she stood next to her car, and yelled to Anderson, “What do you think you are doing?” Although Anderson hollered to her to get off the roadway, both before and after he parked his own car off the roadway, she stayed there until Holsey’s car hit her car and knocked off the driver’s door. At this point Mann attempted to seek safety, but before she could do so, Gutzwiller’s car struck hers, knocking it forward into and striking her. Mann estimated that it took approximately 10-20 seconds for all this to transpire.

At first, the Manns sued Anderson, Gutzwiller, and Holsey. Then, when they learned that Union Camp had burned some woodlands in the vicinity of the accident, the Manns added Union Camp as a defendant. The amended complaint alleged that Union Camp failed to put out its fire properly and this allowed the fire to cause “heavy smoke to cover the roadway in question causing all of the collisions being complained about.” Before trial the Manns dismissed Holsey as a defendant, and during trial they also dismissed Anderson.

The remaining defendants contended that they were not liable, inter alia,, because the collision was caused by an act of God and because Mann assumed the risk of her injuries by driving in the fog and by standing in the roadway until it was too late to avoid her injuries. Over the Manns’ objections the trial court charged the jury on act of God and assumption of risk. After the jury’s verdict for the defendants was incorporated in the judgment and the Manns’ motion for a new trial was denied, they brought this appeal.

The Manns contend the trial court erred by charging on the defenses of act of God and assumption of risk because there was no evidence authorizing these charges. They also contend the trial court erred by denying their motion for a new trial based on the giving of these charges. Held:

1. The Manns assert only that the trial court erred by charging on act of God because the evidence showed smoke caused the collision, the smoke was caused by employees of Union Camp, and a charge of act of God is not authorized when human agency contributes to the event. See Western &c. R. v. Hassler, 92 Ga. App. 278 (88 SE2d 559); Ohlen v. Atlanta &c. R. Co., 2 Ga. App. 323 (58 SE 511).

In our law an act of God is “an accident produced by physical causes which are irresistible or inevitable, such as lightning, storms, perils of the sea, earthquakes, inundations, sudden death, or illness. This expression excludes all idea of human agency.” OCGA § 1-3-3 (3). Further, “an act which may be prevented by the exercise of ordinary care is not an act of God.” Central Ga. EMC Corp. v. Heath, 60 Ga. App. 649, 652 (4 SE2d 700). The Manns argue that under this definition an act of God charge was not authorized because Union Camp was responsible for the smoke that caused the collisions.

While not disagreeing with the Manns’ definition of an act of God, Union Camp contends that under the evidence the fog on the morning of the accident meets that definition. Although witnesses on the scene of the accident testified that the fog was unusually dense, they primarily relied upon their sense of smell for stating there was smoke present. Indeed, some testified that their cars smelled of smoke for some time after the accident.

On the other hand, another witness testified that smelling smoke in fog did not mean that smoke was actually present and related an incident in which he also smelled smoke in fog, but then traced the smell to the remains of an old fire. Additionally, a meteorologist testified that fog is a naturally occurring weather condition that alone could reduce visibility to that present on the morning of the accident. This witness further testified that even if smoke was in the fog, the mixture would not necessarily obscure a driver’s vision more than fog would alone. Moreover, there was testimony that Union Camp’s fires had flamed out, i.e., no visible flames by approximately 2:00 p.m. and by 5:00 p.m. the preceding day, smoke was barely visible at either fire, and that, under the weather conditions existing, smoke from Union Camp’s burns would not have reached the location of these accidents.

Additionally, there was evidence that this fog was completely unexpected and far beyond normal weather conditions. The evidence was that this fog or smoke was unusually dense, that within a few feet of entering the fog visibility went to zero, and that suddenly things went totally black. Further, there was evidence that there was no reason to anticipate how much visibility would be reduced until one entered the fog, and there was no reason to anticipate the fog was significantly different from usual foggy conditions or from the fog the drivers had already experienced that morning.

Consequently, a charge on act of God was authorized because of the Manns’ allegation that Union Camp was responsible for the smoke, and Union Camp’s defense to this argument was that the fog was created as an act of God independently of human agency. As there was some evidence supporting this defense, Union Camp was entitled to the charge. Although the Manns’ argument suggests that the trial court should have weighed the evidence and determined whether an act of God caused the collision, that is not our law. Even slight evidence is enough to authorize a trial court to charge the law on an issue (Fredericks v. State, 172 Ga. App. 379, 380 (323 SE2d 265)) if there is some evidence from which a legitimate process of reasoning can be carried. Sapp v. Johnson, 184 Ga. App. 603, 605 (362 SE2d 82).

Therefore, defendants were entitled to a charge on act of God, and the trial court’s charge did not instruct the jury that the weather conditions present would be considered an act of God, but, instead, defined “act of God” and left it for the jury’s determination whether the evidence presented fit that definition. This was appropriate. Jump v. Benefield, 193 Ga. App. 612, 614 (388 SE2d 864); Feathers v. Wilson, 157 Ga. App. 753, 754-755 (2) (278 SE2d 434).

Additionally, although the focus of this charge has been on Union Camp’s activities, Gutzwiller was also entitled to assert this defense because of the evidence on the unusual nature of the fog. This is particularly true in light of Mann’s admission on the stand that Gutzwiller did not cause the accident.

2. The Manns also contend the trial court erred by charging on assumption of the risk. We find no error. “Assumption of risk assumes that the actor, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.” (Citation and punctuation omitted.) Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (409 SE2d 524). Here, there was evidence showing that despite knowing of the poor visibility and after her car was struck by Anderson’s car, Mann got out of her car and remained standing in the roadway even though Anderson urged her to leave the road. Moreover, there is testimony that Mann remained on the roadway long enough for Anderson to yell at her to get out of the road, park his car on the side of the road and again urge her to get off the road before she attempted to leave. From the posture of the evidence a jury could reasonably infer that, since Mann had just stopped to avoid one car and had been involved in a rear-end collision, she had actual knowledge and understanding that staying on the road was dangerous, and yet she elected voluntarily to remain in a position of danger even though, like Anderson, she had time to drive her car off the roadway, thereby exhibiting “an intelligent acquiescence” in the danger. See Yandle v. Alexander, 116 Ga. App. 165, 167-168 (156 SE2d 504). Therefore, there was evidence from which it could be argued that even though Mann was uninjured and knew vehicles were traveling in the fog too fast to stop without hitting her or her car because one car had already done so, she nevertheless voluntarily stood in the road and assumed the risk of injury until her injuries were unavoidable. Under this evidence, there was a sufficient basis for charging the jury on assumption of the risk (compare Beringause u. Fogleman Truck Lines, supra at 824), and the trial court did not err in so doing. Sapp v. Johnson, supra. The charge of assumption of the risk was reasonably raised by the evidence.

3. As the Manns’ assertion that the trial court erred by denying their motion for a new trial was based upon the charging errors discussed above, in view of our dispositions of these arguments in Divisions 1 and 2, it was not error for the trial court to deny their motion.

Judgment affirmed.

Beasley and Andrews, JJ., concur.

Decided November 17, 1992 —

Reconsideration denied December 16, 1992

Huguenin, Annis & Lewis, David C. Huguenin, Stephen H. Hagler, for appellants.

Bouhan, Williams & Levy, James M. Thomas, Wilbur D. Owens III, Zorn & Caldwell, William A. Zorn, for appellees.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A92A1166, A92A1167.
    FAIRCLOTH v. A. L. WILLIAMS & ASSOCIATES, INC. et al.; and vice versa.
    (426 SE2d 601)
   Birdsong, Presiding Judge.

This is the second summary judgment appeal in this case. See A. L. Williams & Assoc. v. Faircloth, 190 Ga. App. 872 (380 SE2d 471), reversed in part and affirmed in part, A. L. Williams & Assoc. v. Faircloth, 259 Ga. 767 (386 SE2d 151).

Norman Tee Faircloth was a Senior Vice-President (SVP) and Regional Vice-President (RVP) of A. L. Williams & Associates, Inc. (Williams) an insurance agency, for sale of insurance for Massachusetts Indemnity & Life Insurance Company (MILICO). There were three agreements among the parties: the agency agreement between Faircloth and MILICO and the RVP and SVP agreements between Faircloth and Williams; Faircloth was earning override commissions on the sales of 40,000-60,000 sub-agents; his employment was terminated in 1982; he allegedly solicited agents of Williams for a new business; Williams terminated his commissions for breach of non-compete covenants; Faircloth filed this suit. The complaint alleges breach of contract, fraudulent termination of contracts, tortious interference with contracts and conversion of commissions. The trial court granted Faircloth’s motion for partial summary judgment, holding that the non-compete provisions were invalid for being overbroad, but that they were valid insofar as they served as a condition to entitlement to contract benefits including commissions.

In that first appeal we held that as to “ ‘fraudulent termination’ of . . . contracts!,]” the trial court correctly denied summary judgment to Williams, because under the SVP agreement Williams could terminate Faircloth only for cause or by agreement, and Williams was fiduciary agent for Faircloth and a jury might find Williams abused its agency by damaging Faircloth to its benefit. See 190 Ga. App. at 874 (1). But, the Supreme Court reversed our ruling on a supervening rationale that Williams could not be liable for breach of contract of the agency and RVP contracts for a termination without cause because Williams was entitled thereunder to terminate Faircloth for any reason or no reason; that moreover the breach of contract does not give rise to a tort, so there is no cause of action for fraudulent termination; therefore, the only issue as to termination is breach of contract of the SVP contract for termination without cause. See 259 Ga. at 769 (3), 770, fn. 5.

As to the claim that Williams tortiously interfered with relations of MILICO and Faircloth, we held that on account of the fiduciary agency relations between Williams and Faircloth a jury could find Williams acted outside its powers in notifying MILICO to terminate Faircloth. But, the Supreme Court held in a supervening rationale that Faircloth’s agency agreement with MILICO provides that Williams “ ‘has the express right to notify the Company to terminate this Agreement^]’ ” and Williams could not be liable for what it has the right to do. 259 Ga. at 769.

On the claim that Williams converted Faircloth’s commissions, the trial court ruled that under Kem Mfg. Corp. v. Sant, 182 Ga. App. 135 (355 SE2d 437), “ ‘defendants could not deny plaintiff his benefits based upon any breach of covenant which this court has found to be overbroad and unenforceable. . . .’” 190 Ga. App. at 876. We affirmed the ruling. The Supreme Court affirmed, saying: “ ‘While forfeitures are not unlawful, the law does not favor them, and all ambiguities in a contract are to be resolved against their existence.’ [Cit.] It would be paradoxical to strike down a covenant as invalid, and at the same time uphold a forfeiture that is conditioned upon a violation of that very covenant. Hence, a forfeiture provision that is conditioned expressly up'on an invalid covenant must be invalid in se. Any earlier propositions of law to the contrary are disapproved.” 259 Ga. at 767-768. “The trial court [held] . . . that Faircloth’s entitlement to renewal commissions was not forfeited by his violation of the invalid covenants [id. at 767 (1) (a)]. . . . The trial court did not err.” Id. at 768 (b).

On remand from the Supreme Court we vacated Divisions 1 and 2 of our decision in 190 Ga. App. 872, supra, to the extent that they were inconsistent with the Supreme Court’s decision, and we remanded to the trial court. A. L. Williams & Assoc. v. Faircloth, 194 Ga. App. 324 (391 SE2d 143).

The result of those appeals was to remove the counts for fraudulent termination of contracts, breach of the agency and RVP contracts for improper termination and tortious interference. The issues then left pending in the trial court were: breach of the SVP contract by termination without cause; breach of contracts for failure to pay commissions; conversion of commissions.

Williams made another motion for summary judgment on the grounds that since the restrictive covenants in the contracts are invalid and we had held that provisions conditioned thereon also fail, then not only the forfeiture of benefit provisions must fail but the payment provisions must also fail. Williams further asserted that by merely seeking to recover an alleged contract indebtedness, not chattels, Faircloth fails to state a cause of action for conversion, per Hodgskin v. Markatron, 185 Ga. App. 750 (365 SE2d 494).

Faircloth made a cross-motion for summary judgment asserting that Williams did not in fact render an effective termination, because Williams did not file a notice of termination for cause with the Georgia Insurance Commission. Faircloth also filed an affidavit averring that Mr. A. L. Williams stated that he had personally received the wealth Faircloth would have received if he had stayed, which Mr. Williams estimated at $25-50 million.

The trial court denied summary judgment to Williams on its contention that the payment provisions of the contracts fail along with the restrictive covenants, and granted summary judgment on the contention that Faircloth could not maintain a claim for conversion of money owned under a contract. The trial court also denied Faircloth’s motion for summary judgment as to the contention that Williams did not terminate Faircloth because it did not file a notice with the insurance commissioner. Held:

Case No. A92A1166

1. We are constrained to hold that the trial court correctly granted partial summary judgment to Williams as to conversion, ruling that an action for conversion would lie only for withholding of “certain bills or coins” and does not lie on account of a mere failure to pay money under the contracts, under the decisions of Cooke v. Bryant, 103 Ga. 727 (30 SE 435) and Hodgskin v. Markatron, supra at 751 (1). Compare, however, DCA Architects v. American Bldg. Consultants, 203 Ga. App. 598, 600 (2) (417 SE2d 386). It was held that a breach of contract does not by itself give rise to a discrete action for tort; the allegations that a tort was committed add nothing of substance to the breach of contract claim and are mere surplusage (A. L. Williams & Assoc. v. Faircloth, 259 Ga. at 769-770, supra); however, we frequently allow separate claims that might be loosely called “surplusage,” as long as they constitute recognized claims. A failure to pay money under contract might, like conversion, be an “ ‘ “unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion ... or an unauthorized appropriation” ’ ” (DCA Architects, supra), so as to “add something” considerable in the nature of a tort, somewhere between or beyond breach of contract and bad faith breach of contract. But according to Cooke, supra (and see 28 EGL, Trover & Conversion, § 11 (1992 rev.)), an action for conversion will lie only for appropriation of discrete physical things. But see Prosser & Keeton on Torts, § 15, Conversion, pp. 90-92 (5th ed.) which implies this may be too great adherence to the original common law which related actions of trover for conversion only to tangible things that may be “lost” and “found,” and that there may be no very valid reason for this distinction, considering today’s increasing use of intangible ideas of assets, including an ordinary debt, as personal property.

Messrs. Prosser and Keeton, calling conversion “a fascinating tort [which] has largely eluded the attention of legal writers” (id. at 88), conclude that rather than calling the taking or keeping of “intangible assets” conversion, it would seem preferable to fashion other remedies to protect people from having “intangible values” being used and appropriated in unfair ways. Id. at 92. Our courts have not found it necessary to limit parties to one remedy, as a principle.

Recently, an action for conversion of certificates of deposit by an executor was “condoned” by the Georgia Supreme Court, in Hudson v. Abercrombie, 258 Ga. 729 (374 SE2d 83); a certificate of deposit is a physical piece of paper, but what those plaintiffs sought to recover for was conversion of the money which the pieces of paper represented. As to conversion generally, as a distinct act of dominion wrongly asserted over one’s property, see Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259 (356 SE2d 877) and cits. It would seem the gist of the tort is an act of hostile dominion or appropriation, and is not merely a matter of whether the property appropriated was tangible or intangible. The line is very fuzzy in modern times. Today, many forms of property may be evidenced only by a notation in a computer, but it is property nevertheless.

The legislature has described the crime of conversion as occurring when “a person . . . having lawfully obtained funds or other property of another including, but not limited to, leased or rented personal property, under an agreement or other known legal obligation to make a specified application of such funds or a specified disposition of such property, he knowingly converts the funds or property to his own use in violation of the agreement or legal obligation. This Code section applies whether the application or disposition is to be made from the funds or property of another or from the accused’s own funds or property in equivalent amount when the agreement contemplates that the accused may deal with the funds or property of another as his own.” (Emphasis supplied.) OCGA § 16-8-4 (a); and see (b). See also OCGA §§ 11-3-419; 11-3-102 (1) (e).

It seems, further, that if this money is in fact owed by contract to Faircloth, and if it was represented by some form of “receipt” or “certificate” (see Vaughn v. Wright, 139 Ga. 736 (78 SE 123); and see Hudson, supra) then it might, under current law, be considered his “tangible” property when defendants allegedly took money from the insurance customers and sub-agents, and “kept” such receipt or certificate or non-fungible item. In this sense, the money is tangible, not an “intangible asset,” and the appropriation of it may fit the description given in DC A, supra. Being unaware of any such allegation, however, we are bound by Cooke v. Bryant, to hold that this contract debt, not being “certain” coins and bills, or some other certain physical thing representing moneys, was not subject to an act in tort for conversion. We do not think that under the present civil law we can say the contract itself was that discrete physical thing representing Faircloth’s moneys, so as to be subject to an action for conversion.

Faircloth says he can maintain an action for conversion because “Williams was Faircloth’s agent in directing where Faircloth’s money was to go under the contracts or to send it on to him in the event Faircloth’s money went to Williams.” See 190 Ga. App. at 874. Fair-cloth contends the failure to do this was a violation of the private legal duty imposed on an agent not to appropriate his principal’s property. See OCGA § 53-13-84 (repealed by Ga. L. 1991, p. 810, § 1, effective July 1, 1991); see OCGA § 51-1-1. However, assuming Williams was Faircloth’s agent and fiduciary and that it was bound to pay Faircloth the commissions, these are all obligations arising out of and by reason of the contracts, subject to the same limitations on the issue of what it was that was “converted,” noted above. The allegation that Williams was Faircloth’s agent or fiduciary really adds nothing toward creating a claim for conversion. See A. L. Williams & Assoc., 259 Ga., supra. That there might exist an independent legal duty on Williams as Faircloth’s agent does not alter the present rule that conversion involves chattels, not failure to pay money owed under a contract; the breach of fiduciary duty alleged here is conversion of the same moneys for which breach of contract is claimed. See Management Compensation Group v. United Security Employee Programs,. 194 Ga. App. 99, 104 (389 SE2d 525).

Accordingly as to Williams’ failure to pay commissions, we are bound to hold that the claim extant is for breach of contract for failure to pay commissions and that he cannot maintain an action for conversion of that money owed under his contract.

2. The trial court did not err in denying summary judgment to Faircloth, which Faircloth sought on grounds that no termination of the SVP contract had been effected because Williams did not file a notice of termination with the insurance commissioner in accordance with an insurance regulation then existing. According to Faircloth, Georgia Insurance Regulations were made a part of the agreement between Faircloth and the insurer MILICO; former Rule 120-2-3-.10 provided: “Each insurer qualified to do business in Georgia, upon terminating the services of its agents with cause or prejudice,” shall file with the Insurance Department form G.I.D.A.-105. But even assuming this requirement was material to successful termination for cause as between the “insurer” and its agent, both the agency contract between Faircloth and MILICO and the RVP contract were properly terminated “without cause” (259 Ga. at 769 (3)), so notice to the commissioner was not required to be filed on account of the termination of those contracts. The requirement that an “insurer” notify the commissioner upon terminating the services of its agents with cause does not apply to the termination by Williams of the contract of its SVP contract; that is, termination of the SVP contract was done by the insurance agency Williams, and not by the “insurer.” This enumeration of error by Faircloth is without merit.

Case No. A92A1167

Cross-appellant Williams contends that the same principle which forbids reliance on invalid restrictive covenants so as to work a forfeiture (see 259 Ga. at 767-768; 190 Ga. App. at 876-877), likewise defeats any provision for payment of commissions conditioned on those covenants. Williams relies on Kem Mfg. Corp., supra, arguing that the contracts in this case “mandate a finding that the parties intended the payment provisions to be expressly conditioned on plaintiff’s observance of the restrictive covenants” and “that the parties did not intend for the payment provisions to be enforceable independently of plaintiff’s observance of these covenants.” Id. at 140. Thus, says Williams, if the restrictive covenants fail, the payment provisions fail.

It is not certain how much of Kem Mfg. Corp. has been disapproved by the Supreme Court. See 259 Ga. at 768, fn. 1. Moreover, the dicta just quoted referred to a settlement agreement entered into after termination of the employee’s services, as to which the payment of moneys was “expressly conditioned on plaintiff’s observing certain restrictive covenants. . . .” Kem Mfg. Corp., supra at 136. That is not true of the provisions in this case. The bargain included Faircloth’s agreement to devote his evidently considerable talents to thte endeavors of the Williams agency, and it was not conditioned merely upon his observance of restrictive covenants. The provisions cited by Williams mandate a conclusion that Faircloth’s right to receive certain commissions accrued on account of his serving as SVP of the agency and on account of his performance of services in managing and motivating sub-agents in the procurement of sales and commissions while he was employed by Williams, that this was a “vested” right which extended into the specified future, and that this right to receive certain commissions in the future was a considerable basis for Faircloth’s agreeing to be employed by Williams. These provisions were operative from the time Faircloth was employed and were made in consideration of his being employed, and not in consideration of his having been terminated, as was the case in Kem Mfg. Corp. The basis of payment in Kem Mfg. Corp. was compliance with the restrictions. “ [Subsidiary provisions will not, unless their terms imperatively demand it, be given a construction that will nullify and completely destroy the entire obligations of either party under the instrument and thus render the instrument lacking in mutuality and void. . . . [W]here the agreement is founded on a legal consideration containing a promise to do several things or to refrain from doing several things, and some only of the promises are illegal, the promises which are not illegal will be held to be valid. [Cits.]” (Citations and punctuation omitted.) Id. at 140.

The promise of commissions not being conditioned solely on Faircloth’s compliance with the restrictive covenants, it does not fail because those covenants fail. To say otherwise would allow the employer to impose restrictions in illegal restraint of trade by conditioning payment for services on the employee’s observance of illegal covenants, contrary to the spirit and intent of the law on illegal restraint of trade.

The statements by the Supreme Court and this court in the previous appeals as to a forfeiture brought about as a “penalty” for the party’s failure to observe illegal restrictions in restraint of trade are engendered not only by dislike of such restrictive covenants but also by dislike of forfeiture; this abhorrence is compounded when the requirement to abide by a covenant in illegal restraint of trade brings about the forfeiture. To say a party “will not be paid” for his labors unless he abides by illegal restrictive covenants after termination of employment is much the same thing as saying that a party “forfeits” what he is paid. This is not a favored result. Accordingly, unless the contract is crystal clear and unambiguous, we will not interpret provisions as to payment of benefits related to employment services as being destroyed because they were conditioned on observance of illegal restrictive covenants. See Kem Mfg. Corp.

In particular, Williams points to provisions which provide for “divestment” of benefits and contends this proves the parties did not intend that Faircloth be paid unless he complied with the restrictive covenants. What it proves, rather, is that the provision was attempting to work a forfeiture of payments which had vested, and it reinforces the conclusion that such divestment provisions are an attempt at forfeiture.

We are compelled to note that if what Williams says here were true, that is, that the agreement for Faircloth to devote his services and special talents to Williams was not in exchange for certain commission payments but such payments were instead conditioned on performance of illegal restrictive covenants, then the agreement for Faircloth to be remunerated for his services would be nudum pactum, in which case a claim quantum meruit might lie for commissions on policies sold by Faircloth and sub-agents in his hierarchy according to the actual services performed by Faircloth as RVP and SVP managing some 40,000 insurance agents, which might extend in terms of time and payability far beyond the provisions in the contracts.

Decided December 1, 1992 —

Reconsideration denied December 16, 1992

Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellant.

Chiliuis & Grindler, Nickolas P. Chilivis, Gary G. Grindler, John K. Larkins, Jr., Thomas D. Bever, Stanton J. Shapiro, for appellees.

Judgments affirmed.

Beasley and Andrews, JJ., concur.


author: Beasley, Judge.

text:
    A92A1219.
    SORRENTINO et al. v. BOSTON MUTUAL LIFE INSURANCE COMPANY.
    (426 SE2d 594)
   Beasley, Judge.

Appellee sued appellants to recover $53,548.32 plus interest and attorney fees on an unpaid promissory note. Appellants counterclaimed for damages based on lost business opportunities. The trial court awarded summary judgment to appellee on the counterclaim and granted it partial summary judgment on the main claim as to appellants’ liability on the note. It denied summary judgment with respect to damages, because a jury question remained as to the actual amount due.

On motion by appellee, an aüditor was appointed under OCGA § 9-7-3 to investigate the account and report its findings to the trial court. Appellants interposed no formal objection and did not request a hearing on the motion until after the entry of the court’s order. Then they filed a motion for reconsideration. Following a hearing before the court-appointed auditor, a report was filed with the trial court. Neither party filed exceptions to the auditor’s report as permitted by OCGA § 9-7-14. The trial court adopted the auditor’s findings under OCGA § 9-7-21 (a) and entered final judgment against appellants for $20,308.66 principal plus $2,030.86 attorney fees and court costs. It further ordered each party to pay auditor’s costs of $709.38. The notice of appeal specifies that the final judgment, the summary judgment order, the order appointing an auditor, and the findings of the auditor are appealed.

Decided November 30, 1992 —

Reconsideration denied December 16, 1992.

Charles E. Leonard, for appellants.

Crowe & Mann, 'Wayne C. Crowe, for appellee.

Appellee has filed two separate motions to dismiss the appeal.

1. It cites OCGA § 5-6-35 (a) (1), which requires an application in “[a]ppeals from decisions of the superior courts reviewing decisions of . . . auditors ... by certiorari or de novo proceedings. . . .” However, the present case is not one which “two tribunals had already adjudicated. . . .” Citizens &c. Nat. Bank v. Rayle, 246 Ga. 727, 730 (4) (273 SE2d 139) (1980). This auditor’s report was confined to findings of fact and reporting to the state court. Compare Ravan v. Stephens, 248 Ga. 289 (282 SE2d 312) (1981) (auditor made findings of fact and conclusions of law). A direct appeal was authorized under OCGA § 5-6-34 (a) (1).

2. Appellee asserts that appellants have not complied with OCGA § 9-7-22 (c), which requires that auditor’s fees “shall be assessed as court costs and shall be paid prior to the filing of any appeal. . . .” The requirement, added in 1988 (Ga. L. 1988, p. 408) is mandatory and jurisdictional. See Carson v. Auto. Financing, 96 Ga. App. 336 (1) (99 SE2d 903) (1957), regarding OCGA § 5-6-4, a comparable and complementary provision as to court costs.

Appeal dismissed.

Birdsong, P. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A92A1222.
    PARHAM v. NORFOLK SOUTHERN RAILWAY COMPANY.
    (426 SE2d 597)
   Andrews, Judge.

Parham, injured while working for Norfolk Southern, appeals the dismissal of his FELA action against the railway, based on the FELA statute of limitations, 45 USCA § 56.

Parham was injured on December 6, 1987, and filed his FELA action in Fulton State Court on November 29, 1990, within the three-year statute. On March 19, 1991, Parham filed his voluntary dismissal of that suit under OCGA § 9-11-41 (a). On August 21, 1991, Parham filed the identical lawsuit in the same court, contending that this was a renewal suit, pursuant to OCGA § 9-2-61 (a).

Section 56 provides that “[n]o action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued.” In determining that the savings provisions of OCGA § 9-2-61 (a) were not applicable to a FELA action, the trial court felt bound, as do we, by Smith v. Seaboard System R., 179 Ga. App. 822 (348 SE2d 97) (1986). Commenting on the Supreme Court’s holding in Burnett v. New York Central R., 380 U. S. 424 (85 SC 1050, 13 LE2d 941) (1965), this court in Smith noted that, although saving statutes such as OCGA § 9-2-61 (a) would extend the statute of limitation for cases dismissed for procedural reasons such as improper venue, the Supreme Court “refused to incorporate the saving statutes into the FELA statute of limitation because the variety of saving statutes ‘would produce nonuniform periods of limitation in the several States.’ [Burnett,] at 433.” Smith, supra at 823. See also Royster Co. v. Eastern Distribution, 378 SE2d 71 (S.C. App. 1989).

Decided November 30, 1992 —

Reconsideration denied December 16, 1992

Wilson, Strickland & Benson, Warner R. Wilson, Jr., Mary M. Brockington, for appellant.

Neely & Player, Edgar A. Neely, Jr., William C. Thompson, Laura A. Shaw, for appellee.

In J. F. Barton Contracting Co. v. Southern R. Co., 191 Ga. App. 13 (380 SE2d 724) (1989), cert. denied, 191 Ga. App. 922, dealing with the mandatory five-year rule of OCGA § 9-2-60, we again relied on Burnett and Smith to find that voluntary dismissal under OCGA § 9-2-61 in order to avoid dismissal with prejudice under § 9-2-60 did not operate to save a cause of action under the Interstate Commerce Act.

Therefore, there was no error.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.


text:
    A92A1279.
    POPE v. HENDLEY.
    (426 SE2d 607)
   Andrews, Judge.

Hendley filed a dispossessory action against Pope alleging that Pope was a tenant without right to remain in possession of the property at issue, and seeking a writ of possession directing that he be given possession of the premises. Pope appeals from the order of the trial court granting summary judgment in favor of Hendley.

Pope defended the action by claiming that she was not a tenant holding over, but was the beneficiary of an implied trust by which she acquired a life estate in the real property at issue. The following facts are undisputed: In January 1988, Pope conveyed a tract of land by warranty deed to Genesis Professional Management, Inc. (Genesis). The house in which Pope resided was located on a portion of the deeded tract. The deed did not contain a reservation of a life estate to the house or any other portion of the tract. Pope continued to reside in the house after the sale, and paid no rent. In April 1991, Genesis sold the tract on which the house was located to Hendley, who thereafter filed the dispossessory action against Pope.

In dispute is Pope’s claim that she acquired a life estate in the house. Pope contends that prior to the January 1988 purchase Genesis orally agreed that she could live in the house rent free for the remainder of her life. Hendley claims that although he was aware Pope resided in the house when he bought the property, he was informed by Genesis that Pope was a tenant. Hendley filed affidavits showing that the president of Genesis met with Pope in January 1988 to discuss the purchase of the property, and agreed that, because of Pope’s financial difficulties, she could remain in the house after the sale without paying rent for the first year, but that rent would be charged thereafter at the rate of $200 per month. The affidavits further stated that Pope continued to reside on the property after the Genesis purchase; that she never paid any rent; that in March 1990, Pope was informed that Genesis was selling the property, and that she could remain in the house until the property was sold. The record further reflects that in April 1988, Pope filed a bankruptcy petition in the United States Bankruptcy Court in which she alleged under oath that she had no interest in real property, and owed rent on her residence at the rate of $200 per month.

The Georgia Trust Act, OCGA § 53-12-1 et seq., provides that an implied trust is either a resulting trust or a constructive trust. OCGA § 53-12-90; see Eason v. Farmer, 261 Ga. 675, 676 (409 SE2d 509) (1991). (As of July 1, 1991, the Georgia Trust Act became applicable to any trust regardless of the date it was created unless application would impair vested rights, or unless otherwise provided by law. OCGA § 53-12-3.) The present facts do not support implication of either a resulting or a constructive trust in favor of Pope. See OCGA §§ 53-12-91 (resulting trusts); 53-12-93 (constructive trusts). Although Pope contends that when she conveyed legal title to the property, an oral agreement was reached for her to retain a life estate, her sworn statements in the bankruptcy petition filed subsequent to the sale indicate that she was a tenant holding no such interest in the property, and contradict her present contentions. Although evidence is to be construed against the movant on summary judgment, an exception to this requirement provides that a non-moving party’s testimony is to be construed most strongly against her when it is contradictory, vague or equivocal. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986). This exception is not limited to testimony given by the non-moving party in the case before the court. Hudgens v. Broomberg, 262 Ga. 271-272 (416 SE2d 287) (1992). If a reasonable explanation is offered by the non-moving party to explain the contradiction, the testimony will not be adversely construed. Prophecy Corp., supra at 30. Whether or not such testimony is contradictory, and whether the non-moving party has carried the burden of offering a reasonable explanation is an issue of law for the trial judge on summary judgment. Id. at 30; Thacker v. Matthews Tuxedo, 183 Ga. App. 474, 475 (359 SE2d 231) (1987).

Decided December 1, 1992 —

Reconsideration denied December 16, 1992

Bush, Wallace &. Craig, Daniel J. Craig, for appellant.

R. Hubert Reeves III, for appellee.

Pope offered no reasonable explanation for the contradiction, and the trial judge properly construed the contradictory testimony against her. The evidence so construed authorized the trial judge to conclude as a matter of law that Pope occupied the house as a tenant after conveying title to the property, and that no implied trust creating a life estate was shown. See Taylor v. Aetna Life Ins. Co., 235 Ga. 630 (221 SE2d 45) (1975).

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.


text:
    A92A1391.
    WAL-MART STORES, INC. v. CURRY.
    (426 SE2d 581)
   Birdsong, Presiding Judge.

Wal-Mart appeals from a judgment for $50,000, based upon a jury verdict in favor of Patricia Ann Curry in her action against WalMart for false imprisonment. Wal-Mart contends the trial court made several erroneous evidentiary rulings, and also contends the trial court erred by denying its motion for a new trial. In addition to responding to the issues Wal-Mart has raised, Curry has challenged our jurisdiction to consider this appeal. Held:

Curry contends her motion to dismiss the appeal should be granted because Wal-Mart’s notice of appeal was not filed within 30 days of the entry of the judgment on October 21, 1991, as required by OCGA § 5-6-38 (a). Curry asserts that the notice of appeal filed on January 16,1992, was untimely, and Wal-Mart was not entitled to the extension of time in which to file a notice of appeal because WalMart’s motion for a new trial or in the alternative for judgment n.o.v. was not timely filed. Although the record shows this motion was not filed until December 20, 1991, a date which was not within 30 days of entry of the judgment, Wal-Mart maintains that its notice of appeal was timely because it was filed within 30 days of the trial court’s denial of its motion for new trial.

The records shows, however, that Wal-Mart’s post-trial motion was not filed until December 20, 1991. The motion and its attached brief in support, certificate of service, and rule nisi, however, were all dated November 8, 1991, and the rule nisi, signed by the trial judge, stated “the above motion having been read and considered, let the same be filed and served pursuant to law.” Nevertheless, none of these documents bear any indication that they were filed within 30 days of the entry of the judgment.

Although Wal-Mart seeks to explain the proceedings below by submitting an. affidavit of counsel attached to its brief, factual assertions in briefs, unsupported by the record, cannot be considered in the appellate process and cannot be used to add to the record. Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 SE2d 33); Behar v. Aero Med Intl., 185 Ga. App. 845 (366 SE2d 223). In any event, the affidavit is of no assistance because it shows the motion was not sent for filing until December 20, 1991.

Under Georgia law, the filing of pleadings is “made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.” (Emphasis supplied.) OCGA § 9-11-5 (e). Further, a motion for new trial is made only by filing a motion for new trial. Smith v. Forrester, 145 Ga. App. 281, 283 (243 SE2d 575).

The trial judge merely signing the rule nisi is not the equivalent of filing under OCGA § 9-11-5 (e). “The record in this case does not support a finding that the trial court permitted the order ‘to be filed with him’ within the meaning of § 9-11-5: There was no date marked on the order by the judge as is required by the statute, and neither the judge nor his secretary averred that the particular [motion] in question was filed with the judge. . . . ‘The entry of filing by the clerk is the best evidence of the date of filing and is presumed to be correct until the contrary is shown. . . . This presumption may be rebutted, however, by proof of delivery for filing to the clerk on a different day. “The actual date of filing is the date upon which the paper is handed to the clerk to be filed.” (Cit.)’ ” International Longshoremen’s Assn. &c. v. Saunders, 182 Ga. App. 301, 303 (355 SE2d 461). Compare Storch v. Hayes Microcomputer Products, 181 Ga. App. 627 (353 SE2d 350). Therefore, as this record shows no notation by the trial judge that Wal-Mart’s motion was filed prior to December 20, 1991, the motion was not filed until it was received and filed by the clerk of court on December 20, 1991.

Under Georgia law motions for new trial, except in extraordinary cases, and motions for judgment n.o.v. must be made within 30 days of entry of judgment. OCGA §§ 5-5-40 (a); 9-11-50 (b). Further, extensions of time in which to file motions for new trial or motions for judgment n.o.v. are not authorized. OCGA § 5-6-39 (b). As Wal-Mart did not file its motion within 30 days of the entry of judgment, WalMart’s belated motion was a nullity. Smith v. Forrester, supra at 283.

Decided November 5, 1992 —

Reconsideration denied December 16, 1992.

Anderson, Walker & Reichert, Robert A. Reichert, Jonathan A. Alderman, for appellant.

J. O’Quinn Lindsey, F. Robert Raley, for appellee.

Therefore, as Wal-Mart failed to comply with OCGA § 5-6-38 (a), it was not entitled to the authorized delay in filing its notice of appeal until after the trail court acted upon its motion. Consequently, this court lacks jurisdiction over this appeal, and it must be dismissed. OCGA § 5-6-48 (b) (1).

Appeal dismissed.

Beasley and Andrews, JJ., concur.

On Motion for Reconsideration.

Wal-Mart’s motion for reconsideration contends that we erred by dismissing its appeal without first supplementing the record with evidence showing what actually happened below, and has attached to its motion the affidavit of the trial judge stating his actions in regard to this motion. Under the authority given in OCGA § 5-6-48 (d) “or take any other action to perfect the appeal and record,” we will consider the trial judge’s affidavit. The affidavit, however, does not support Wal-Mart’s contention that the judge accepted the motion for filing under OCGA § 9-11-5 (e). Instead, the affidavit states he “reviewed the motion and executed the rule nisi” and “the original motion, brief, and rule nisi were left in my office and remained in my office to the best of my belief until they were filed with the Clerk’s Office on December 20, 1991.” With this affidavit, it is clear that the motion was not filed with the court under OCGA § 9-11-5 (a) on November 8, 1991. Therefore, the motion was not filed within the time prescribed by OCGA § 5-5-40 (a).

Motion for reconsideration denied.


author: Pope, Judge.

text:
    A92A1413.
    A92A1414.
    CHADBROOKE INSURANCE COMPANY v. FOWLER et al. EMMETT ENTERPRISES, INC. v. FOWLER et al.
    (426 SE2d 578)
   Pope, Judge.

On December 22, 1988, Stacey Fowler and her daughter Tonya were injured in an automobile collision. On January 31, 1989, Stacey and her husband Henry Fowler filed a negligence action against Jeffery Storey, the driver of the other car involved in the collision. Storey was served with the complaint on March 2, 1989. On October 25, 1989, Tonya Fowler was also made a party-plaintiff to the proceedings. Storey failed to answer the complaint or otherwise interpose a defense to the action against him, and on December 19, 1989 a default judgment was entered against Storey in favor of plaintiffs pursuant to which plaintiffs were awarded over $1,000,000 plus costs and interest.

Following an assignment of rights from Storey, plaintiffs filed the present action against defendants/appellants The Chadbrooke Insurance Company (Chadbrooke), Storey’s alleged automobile liability insurance carrier, and Emmett Enterprises, Inc. d/b/a Esquire Insurance Agency (Esquire), the insurance broker who allegedly obtained the insurance policy for Storey. Defendants filed separate motions for summary judgment, or in the alternative motions for partial summary judgment, contending, inter alia, that no policy or binder of insurance was in effect at the time of the collision and that, assuming coverage was available at the time of the accident, plaintiffs’ action was barred because Storey failed to provide Chadbrooke with timely notice of the negligence action against him. The trial court denied defendants’ motions for summary judgment and contemporaneously issued a certificate of immediate review. We granted defendants’ applications for interlocutory review, and defendants filed their notices of appeal to this court. We now reverse the trial court’s denial of summary judgment in this case.

Defendants filed separate enumerations of error and briefs on appeal, asserting similar but not identical arguments to this court. However, we find it unnecessary to address defendants’ appeals separately, inasmuch as we have determined that both defendants are entitled to summary judgment on the basis that the alleged insurer in this case did not receive notice of the lawsuit in accordance with OCGA § 33-7-15.

OCGA § 33-7-15 (a) requires insurers issuing automobile liability insurance policies covering vehicles principally garaged or used in this state to include in their policies a provision requiring the “insured to send his insurer, as soon as practicable after the receipt thereof, a copy of every summons or other process relating to the coverage under the policy and to cooperate otherwise with the insurer in connection with the defense of any action or threatened action covered under the policy.” In accordance with this provision, Chadbrooke’s policies contained a requirement stating that “[i]f claim or suit is brought against a person insured, any legal papers received by a person insured relating to such claim or suit must be sent to us promptly.” It is uncontroverted that Storey, the alleged insured in this case, never sent defendants a copy of the lawsuit filed against him on account of the December 22 accident or in any way notified the defendants of the pendency of the claims against him. “Pursuant to OCGA § 33-7-15 (b), a failure to comply with such a policy provision will, if prejudicial to the insurer, operate to ‘relieve the insurer of its obligation to defend its insureds under the policy and of any liability to pay any judgment or other sum on behalf of its insureds.’ ” (Emphasis supplied.) Mahone v. State Farm Mut. Auto. Ins. Co., 188 Ga. App. 664, 666 (2) (373 SE2d 809) (1988).

The question then is whether the failure of the insured to notify the insurer resulted in prejudice to the insurer in this case. In Champion v. Southern Gen. Ins. Co., 198 Ga. App. 129 (401 SE2d 36) (1990), we held that “[proof] that the insurer received no notification of a suit brought against its insured until after final judgment had been entered in a default situation is sufficient to carry the insurer’s burden of showing prejudice under OCGA § 33-7-15 (b) so as to relieve the insurer of its obligations under the policy to defend the suit and pay any judgment entered against its insured.” Id. at 132. Plaintiffs argue, however, that Champion is distinguishable from the present case because prior to the entry of the default judgment against the insured, plaintiffs sent certain discovery documents and correspondence to Chadbrooke which, plaintiffs argue, put the insurer on notice of plaintiffs’ claims against the insured.

Subsection (c) of OCGA § 33-7-15 governs when notice to the insurer by a third party will satisfy the requirements of OCGA § 33-7-15. That section provides as follows: “Subsections (a) and (b) of this Code section shall not operate to deny coverage for failure to send a copy of a summons or other process relating to policy coverage if such documents are sent by a third party to the insurer or to the insurer’s agent by certified mail within ten days of the filing of such documents with the clerk of the court. If the name of the insurer or the insurer’s agent is unknown, the third party shall have a period of 30 days from the date the insurer or agent becomes known in which to send these required documents. Such documents must be sent to the insurer or agent at least 30 days prior to the entry of any judgment against the insured.”

Decided November 4, 1992 —

Reconsideration denied December 16, 1992

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, Benjamin T. Hughes, for appellant (case no. A92A1413).

Dennis, Corry, Porter & Thornton, Robert E. Corry, Jr., Craig P. Siegenthaler, for appellant (case no. A92A1414).

The record shows without dispute that the plaintiffs did not send a copy of the “summons or other process” within ten days of the filing of the lawsuit in this case. The record does show that on November 10,1989, plaintiffs “faxed” a copy of a request for production of documents to Chadbrooke and on November 16, 1989, plaintiffs sent defendants certain other discovery requests. However, plaintiffs did not send Chadbrooke a copy of the summons or complaint 30 days prior to the entry of the default judgment in this case as mandated by the statute. Moreover, the discovery requests which were sent 30 days prior to the entry of judgment merely sought information concerning insurance coverage for the year 1988, or alternatively, for the month of December 1988, and contained no reference to any facts relating to the December 22, 1988 accident. A letter accompanying the document sent November 10 simply stated that the information requested was to be used by plaintiffs “in a civil action, the style of which is on the request.” The primary purpose of the notice requirement contained in OCGA § 33-7-15 is to give the insurer an opportunity to make a timely and adequate investigation of all the circumstances. See, e.g., Champion, 198 Ga. App. at 131. The information received by Chadbrooke did not inform it of even the most basic facts concerning the accident and thus was clearly inadequate to enable Chadbrooke to protect its interests in this case. Consequently, the statutory and contractual notice requirements were not satisfied, with the result that Chadbrooke is relieved of its obligation to pay the judgment entered against Storey. The trial court thus erred in denying defendants’ motions for summary judgment.

Judgments reversed.

Carley, P. J., and Johnson, J., concur.

Winship E. Rees, for appellees.

       We agree with the trial court that the facts concerning whether a policy or binder of insurance issued by Chadbrooke to Storey was in effect at the time of the collision are in dispute. According to Storey, he completed the necessary application for insurance in Esquire’s office on November 28, 1988 and left the office that day with an insurance identification card and the belief that he had insurance coverage. According to Esquire’s agent, Stacey Green, Storey visited Esquire’s office on November 28,1988 but the application was not completed and Storey left the office with the understanding that the application would be completed and a policy issued when he returned with a premium payment. According to Green, Storey did not return to Esquire’s office until December 30, 1988, at which time he paid part of the premium and the application was completed and a binder of insurance issued.

       Another letter was sent to Chadbrooke on November 28,1989, notifying it that the suit against the insured was in default.


text:
    A92A1445.
    A92A1446.
    STOKES v. THE STATE. COLEMAN v. THE STATE.
    (426 SE2d 573)
    Decided September 23, 1992 —
    Reconsiderations denied November 17, 1992 and December. 16, 1992

      Fleming, Blanchard & Bonner, John Fleming, Danny L. Durham, Charles R. Sheppard, for appellants.

      Michael C. Eubanks, District Attorney, Richard E. Thomas, Daniel W. Hamilton, Assistant District Attorneys, for appellee.
   Pope, Judge.

Appellants/defendants William Stokes, Jr. and John Ellis Coleman were tried jointly and convicted of selling cocaine. They both appeal from their convictions and sentences and raise the same enumerations of error.

1. Defendants first argue the trial court erred in entering a judgment of conviction against them because the jury panel that heard their cases was not properly sworn. Defendants did not submit any evidence to the trial court that the jury panel was not sworn. They rely on the fact that the record does not reflect whether the jury panel was sworn. The courts of this State have consistently held that the failure of the record to reflect whether the jury is sworn does not constitute reversible error. Smith v. State, 235 Ga. 852 (3) (221 SE2d 601) (1976); Copeland v. State, 139 Ga. App. 55 (2) (227 SE2d 850) (1976).

2. Defendants also argue the trial court erred by admitting into evidence over their objections a bag containing the contraband in question to which tags were attached bearing their names. This enumeration of error is controlled adversely to defendants by our recent decisions in Morgan v. State, 204 Ga. App. 178 (1) (419 SE2d 313) (1992) and Brown v. State, 195 Ga. App. 389 (393 SE2d 514) (1990). Cf. Morris v. State, 161 Ga. App. 141 (288 SE2d 102) (1982) (in which this court held it was error to allow a tag on evidence stating that it came from defendant’s residence when the apartment in question was leased by someone else and whether the defendant resided in the apartment was an issue to be decided by the jury).

Judgments affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A1477.
    WASHINGTON STATE EMPLOYEES CREDIT UNION v. ROBINSON.
    (427 SE2d 15)
   Pope, Judge.

We granted plaintiff Washington State Employees Credit Union’s (“WSECU”) application for interlocutory appeal from the trial court’s order dissolving WSECU’s writ of immediate possession of a 1985 motor home.

In 1989, WSECU made a loan to Dana Delaney to allow Delaney to purchase a 1985 Fleetwood Southwind motor home. The motor home was involved in a collision in March 1991. The motor home was repaired by defendant Tammy Robinson d/b/a Custom Vans. Delaney and defendant eventually agreed that defendant would repair the motor home for $5,350. The insurer of the motor home, Northland Insurance Company, issued a draft made payable to both Delaney and Custom Vans in the amount of $5,588.30 before repairs on the motor home began. Defendant retained $2,675 of the proceeds received from the insurance company and gave the remaining proceeds to Delaney, with the alleged understanding that she needed the funds to pay for temporary housing but that she would pay the defendant the remaining $2,675 when the repairs were completed.

When the repairs were completed, Delaney failed to pay defendant the remaining funds owed. When defendant became concerned Delaney would not pay her the remaining $2,675, she contacted WSECU. While the parties dispute the amount demanded by defendant from WSECU, defendant admits she refused to release the motor home to WSECU for less than $3,700. Defendant subsequently secured a mechanic’s lien against the subject motor home. WSECU filed a petition in the State Court of DeKalb County seeking a writ of immediate possession. The trial court granted the writ. Defendant then filed a motion to dissolve the writ, which the trial court also granted. The trial court ruled, however, that the subject motor home should remain in the care, custody and control of WSECU during the pendency of this case. WSECU filed this interlocutory appeal from the trial court’s order dissolving the writ.

1. WSECU contends the trial court erred by dissolving the writ of immediate possession and ruling that the writ was wrongfully obtained. Defendant argues the trial court correctly dissolved the writ because the loan transaction between Delaney and WSECU is a consumer transaction. OCGA § 44-14-261 provides that “No [writ of immediate possession] shall issue on an interest arising out of a consumer transaction. . . .” Although the trial court order does not discuss the nature of the transaction, defendant presented this argument to the trial court, and we must assume the trial court considered the argument in reaching its decision to dissolve the writ. We hold there was sufficient evidence for the trial court to find WSECU’s interest in the subject motor home arose from a consumer transaction rather than a commercial transaction.

The terms commercial transaction and consumer transaction are defined in OCGA § 44-14-260. “‘Commercial transaction’ means a transaction which gives rise to an obligation to pay for goods sold or leased, services rendered, or moneys loaned for use in the conduct of a business or profession and not for personal consumption.” OCGA § 44-14-260 (1). “ ‘Consumer transaction’ means the sale, lease, or rental of goods, services, or property, real or personal, primarily for personal, family or household purposes.” OCGA § 44-14-260 (2). The loan agreement between Delaney and WSECU contains the following language: “The types of loans available under this loan plan include: personal loans, line of credit loans, VISA credit loans, short and long term secured consumer loans, student loans, and mortgage loans.” Furthermore, the payment method specified in the loan was “payroll.” In Delaney’s affidavit she stated she used the motor home for business purposes, however, there is nothing in the record to indicate that WSECU knew that Delaney intended to use the motor home for business purposes at the time it made the loan to Delaney to purchase the motor home. Motor homes are generally used for personal purposes rather than commercial. Accordingly, we hold there was sufficient evidence for the trial court to conclude the loan transaction between Delaney and WSECU was a consumer transaction.

2. WSECU also contends the trial court erred by adjudicating the priority of the competing liens and declaring the defendant has a right to damages when the only proper issue before the trial court was whether the writ should be dissolved. We agree. This issue is controlled by our decision in Ward v. Charles D. Hardwick Co., 156 Ga. App. 96 (274 SE2d 20) (1980). As we discussed in that case, when deciding whether a writ for immediate possession should be dissolved, the trial court must focus “solely on whether the plaintiff had proved that [it] was entitled to immediate possession because the property was subject to waste or concealment. . . .” (Emphasis supplied and omitted.) Id. at 98. The trial court cannot weigh the merits of the parties’ claims when deciding if the writ should be dissolved. Id. at 99. It is apparent from the trial court’s order that the court improperly considered the priority of WSECU’s security interest and defendant’s lien claim when deciding whether the writ should be dissolved. As we discussed in Division 1, the trial court’s dissolution of the writ was proper because there was sufficient evidence that the loan transaction was a consumer transaction. Therefore, we hold it was harmless error for the trial court to decide the priority of the parties’ claims to the motor home “while ostensibly determining the merits of the writ of immediate possession. ...” Id.

Decided December 2, 1992 —

Reconsideration denied December 16, 1992

Thompson, O’Brien, Kemp & Nasuti, R. Michael Thompson, Albert F. Nasuti, Thomas S. Kenney, for appellant.

3. The trial court also erred by holding defendant’s mechanic’s lien is superior to WSECU’s perfected security interest in the motor home. It is not disputed that WSECU had a perfected security interest in the motor home and that it appeared on the certificate of title as the legal owner. Once perfected in Washington, WSECU’s security interest remained perfected in Georgia. United Carolina Bank v. Sis-trunk, 158 Ga. App. 107, 109 (1) (279 SE2d 272) (1981). OCGA § 40-3-54 (a) provides in relevant part: “All mechanics of every sort shall have a special lien on any vehicle required to have a certificate of title by Code Section 40-3-20 for work done, or for work done and materials furnished, or for materials furnished in repairing or servicing such vehicle. . . . Such special lien shall be superior to all liens except for taxes and such other liens and security interests of which the mechanic had actual or constructive notice before the work was done or material furnished. The validity of the lien against third parties shall be determined in accordance with this chapter.” (Emphasis supplied.)

This enumeration is controlled by our decision in Hull v. Transport Acceptance Corp., YU Ga. App. 875 (341 SE2d 330) (1986). When, as here, a security interest is noted on the certificate of title for a vehicle, the certificate of title is deemed to provide constructive notice to future creditors of the owner, including mechanics, that the vehicle is encumbered by a security interest. It is undisputed that the repairs made by the defendant to the motor home were performed well after the certificate of title for the motor home was issued, which showed that plaintiff had a security interest in the motor home. Therefore, defendant is deemed to have constructive knowledge of plaintiff’s security interest and pursuant to OCGA § 40-3-54, plaintiff’s security interest takes priority over the mechanic’s lien of defendant. Accord Barnes v. General Motors Acceptance Corp., 191 Ga. App. 201 (3) (381 SE2d 146) (1989) and Roberts v. International Harvester &c., 143 Ga. App. 206, 207 (237 SE2d 697) (1977). Accordingly, the order of the trial court is reversed with direction that another order be entered holding that WSECU’s perfected security interest has priority over defendant’s mechanic’s lien.

4. We have considered WSECU’s final enumeration of error and find it to be without merit.

Judgment reversed with direction.

Carley, P. J., and Johnson, J., concur.

Thompson & Slagle, Jefferson B. Slagle, Gady C. Zeewy, for appellee.


author: Carley, Presiding Judge.

text:
    A92A1505.
    A92A1506.
    A92A1507.
    CARNEY v. JDN CONSTRUCTION COMPANY et al. SHULER v. CARNEY. CITY OF CALHOUN v. CARNEY.
    (426 SE2d 611)
   Carley, Presiding Judge.

Appellant-plaintiff was injured when she stepped into an uncovered sewer manhole which was located in the parking lot of a newly opened shopping center in Gordon County. She filed suit, alleging that appellee-defendants were jointly and severally liable for the injuries she had sustained. Appellant’s suit was brought in Fulton County, that being the county of residence of appellees JDN Construction Company (JDNCC) and JDN Enterprises, Inc. (JDNEI). Prior to trial, the trial court granted summary judgment in favor of appellee Bartow Paving Company (BPC), and appellant entered into a settlement agreement with JDNCC and JDNEI. Thereafter, appellees Bruce Shuler and the City of Calhoun (City), moved to transfer the action to Gordon County. The motion to transfer was denied and the case proceeded to jury trial in Fulton County. The jury returned verdicts in favor of Shuler and the City. In Case No. A92A1505, appellant appeals and, in Case Nos. A92A1506 and A92A1507, Shuler and the City cross-appeal.

Case No. A92A1506

In his cross-appeal, Shuler enumerates as error the denial of his motion for a directed verdict. If meritorious, this enumeration would serve to moot the main appeal as to Shuler. Accordingly, we will address Shuler’s cross-appeal first.

1. Shuler was employed by the City to perform certain sewer line work which had been necessitated by the construction of the shopping center and parking lot. Shuler’s work was turned over to and accepted by the City in May of 1988. At that time, the manhole was on top of a stack which rose some 13 feet above grade. Although Shuler testified that, prior to turning his work over to the City, he had sealed the manhole with a traffic-bearing cover, there is at least some evidence that there was no manhole cover in place at the time the work was accepted by the City. Thereafter, filling of the site resulted in the grade being raised the 13 feet necessary to make it level with the top of the manhole stack. At that time, someone other than Shuler placed a non-traffic-bearing cover on the manhole. BPC then paved the site to serve as the parking lot for the shopping center. After the shopping center opened, the manhole cover broke and fell down into the manhole stack, apparently due to the weight of vehicles that it had not been designed to bear. Appellant fell into this uncovered manhole, some eight months after Shuler’s work had been turned over to and accepted by the City.

As a general rule, acceptance by the employer insulates an independent contractor from liability for injuries subsequently resulting from his negligent performance of the contract. Young v. Smith & Kelly Co., 124 Ga. 475, 476 (52 SE 765) (1905). There are, however, exceptions to this general rule. “The exceptions applying to the negligent contractor are ‘where the work is a nuisance per se, or inherently or intrinsically dangerous . . . (, or) so negligently defective as to be imminently dangerous to third persons.’ [Cit.]” David Allen Co. v. Benton, 260 Ga. 557, 558 (398 SE2d 191) (1990). Although there is some evidence that Shuler may have been negligent in the performance of his sewer work by virtue of his failure to have provided any manhole cover, it is undisputed that the City had nevertheless accepted his work. Accordingly, the issue for resolution is whether the evidence would also authorize a finding that Shuler’s work came within one of the exceptions to the general rule of non-liability for injuries subsequently resulting from negligent performance which has previously been accepted by the employer.

The first exception is where the work is a nuisance per se, or inherently or intrinsically dangerous. This exception “is applicable only where the work performed is itself inherently dangerous. [Cits.]” (Emphasis in original.) Peachtree North Apts. Co. v. Huffman-Wolfe Co., 126 Ga. App. 594, 595 (191 SE2d 485) (1972). There is no contention that Shuler’s sewer work was itself inherently dangerous. The only contention is that Shuler’s work resulted in the creation of a dangerous condition in the form of an uncovered manhole. This invokes the second exception, which is for work turned over that “ ‘is so negligently defective as to be imminently dangerous to third persons. [Cits.]’ (Emphasis supplied.) [Cit.]” Peachtree North Apts. Co. v. Huffman-Wolfe Co., supra at 594. Under the evidence, however, Shuler’s work was not imminently dangerous to anyone at the time it was accepted by the City. The uncovered manhole was then some 13 feet above grade and posed an imminent danger to no one. It was not until the site was subsequently filled and graded that the uncovered manhole became potentially dangerous to third persons. At that time, Shuler was not called upon to place a cover over the manhole, but someone else took it upon himself to do so. Under these circumstances, liability for such subsequent injuries as were caused by the manhole had passed from Shuler to the City, which had accepted the uncovered manhole, and/or to whomever had taken it upon himself to place a non-conforming cover over the manhole. “[T]he construction was not imminently dangerous at the time it was turned over by [Shuler]. The [denial] of [a directed verdict] in favor of [him], was . . . error.” Peachtree North Apts. Co. v. Huffman-Wolfe Co., supra at 595.

Case No. A92A1505

2. At the jury trial, the settlement agreement that appellant had reached with JDNCC and JDNEI was admitted into evidence, with the amount of the settlement having been edited therefrom. Appellant enumerates as error the admission of the edited settlement agreement.

Appellant’s settlement agreement with JDNCC and JDNEI was certainly not relevant to the City’s liability. That agreement did not evince that JDNCC and JDNEI were solely liable for appellant’s injury and that the City had no liability therefor. The agreement was, however, relevant to the extent of appellant’s potential recovery as against the City. An injured party can have but one satisfaction for his injuries. Ford Motor Co. v. Lee, 237 Ga. 554, 556 (2) (229 SE2d 379) (1976). To insure that appellant did not fully recover once from JDNCC and JDNEI and fully once again from the City, two options were available. King Cotton, Ltd. v. Powers, 190 Ga. App. 845, 849 (2) (380 SE2d 481) (1989). One option was to disclose to the jury the amount of the settlement and then to instruct the jury to deduct that amount from its own assessment of the full satisfaction to which appellant was entitled. “[T]he amount paid under [a settlement agreement with one joint tortfeasor] can be pleaded and proven by another who is jointly liable for the purpose of obtaining credit in assessing full compensation. [Cit.]” Pennsylvania Threshermen & Farmers Mut. Cas. Ins. Co. v. Hill, 113 Ga. App. 283, 289 (1) (148 SE2d 83) (1966). Under this option, full satisfaction would be represented by the amount of the settlement plus the jury’s award. The other option was not to disclose to the jury the existence of any settlement agreement whatsoever and to instruct the jury to return a verdict awarding appellant the full satisfaction for her injuries. Under this option, full satisfaction would be represented by the undiminished jury’s award. The trial court “would then, of course, set off the amount of the settlement . . . from the jury’s award. [Cit.]” King Cotton, Ltd. v. Powers, supra at 849 (2).

In the instant case, the edited settlement agreement was obviously neither relevant nor admissible for the jury’s consideration under either option. Under the first option, limited disclosure of the amount of the settlement is authorized. Under the second option, disclosure of no portion of the settlement agreement is authorized. Here, the trial court disclosed all portions of the settlement agreement except the amount. The City has cited no case which is authority for the proposition that a settlement agreement from which the amount has been edited is relevant and admissible into evidence for any purpose whatsoever. Neither Ford Motor Co. v. Lee, supra, nor Weaver v. Ross, 192 Ga. App. 568, 570 (2) (386 SE2d 43) (1989) purport to address the evidentiary issue of the underlying admissibility of a settlement agreement, either with or without disclosure of the amount. Barnes v. Wall, 201 Ga. App. 228 (2) (411 SE2d 270) (1991); King Cotton, Ltd. v. Powers, supra; Pennsylvania Threshermen & Farmers Mut. Cas. Ins. Co. v. Hill, supra; Malone v. City of Rossville, 107 Ga. App. 271, 272 (1) (129 SE2d 563) (1963); and, Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36 (2) (60 SE2d 770) (1950) all discuss only disclosure of the amount of settlement pursuant to the first option.

It follows that, in the instant case, the trial court erred in admitting the settlement agreement which had been edited to conceal the amount thereof. The effect of the trial court’s evidentiary ruling was to exclude the only potentially relevant portion of the settlement agreement and to admit only the clearly irrelevant portions thereof. Under the first option, the amount of the settlement would have been relevant and admissible for the jury’s consideration on the limited issue of the extent of appellant’s recovery against the City. Under the second option, no portion of the settlement agreement would have been relevant and admissible for the jury’s consideration on the limited issue of the extent of appellant’s recovery against the City. There is no other option, whereby all portions of the settlement agreement except the amount thereof would be relevant and admissible for any purpose whatsoever.

We cannot say that the trial court’s evidentiary error was harmless. Since the edited settlement agreement was admitted into evidence, the jury obviously considered it to be relevant for some purpose. As the amount was not disclosed and the first option was not followed, the jury certainly could not have considered the evidence as relevant to the issue of the amount of appellant’s recovery. Instead, the evidence may well have erroneously influenced the jury on the issue of the City’s liability. A settlement would have no bearing on the liability of a non-settling alleged joint tortfeasor and is not evidence that the alleged negligence of the settling alleged joint tortfeasor is the sole proximate cause of the plaintiff’s injury. Nevertheless, the instant record demonstrates that, in his opening statement, counsel for the City asserted that appellant had already settled with the parties “that did the wrong” and that appellant had “nothing to lose” by proceeding against the City. Appellant was not entitled to a double recovery for her injury, but the City was not entitled to rely upon the settlement agreement as evidence that appellant was making such an attempt. The burden was on appellant to prove the City’s negligence and if the appellant so proved, it would be up to the City to establish a viable defense to its liability. Evidence that the negligence of JDNCC and JDNEI was the sole proximate cause of appellant’s injury would be such a viable defense. Appellant’s settlement with JDNCC and JDNEI would not be relevant to such a defense and, under the record, we cannot say that the jury did not erroneously conclude that it was relevant and that the verdict in favor of the City was not erroneously influenced by the evidence that JDNCC and JDNEI had already settled with appellant. Accordingly, the judgment in favor of the City must be reversed and a new trial held as to the City’s liability.

3. Appellant enumerates as error the grant of the City’s motion for a directed verdict as to its non-liability for punitive damages.

“Negligence, even gross negligence, is inadequate to support a punitive damage award. [Cit.]” Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (3b) (365 SE2d 827) (1988). “Under OCGA § 51-12-5.1 (b), which is applicable in the instant case, it remains the rule that ‘ “ ‘(s)omething more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. . . . There is general agreement that, because it lacks this element, mere negligence is not enough. . . .’ (Cit.)” (Cit.)’ [Cit.]” Ivey v. Golden Key Realty, 200 Ga. App. 545 (1) (408 SE2d 811) (1991). “The evidence, construed most favorably for appellant shows, at most, the mere commission of a tort. The trial court correctly granted [a directed verdict] in favor of [the City] as to punitive damages. [Cit.]” Gaither v. Barclaysamerican/Financial of Ga., 194 Ga. App. 188, 189 (390 SE2d 97) (1990).

4. Appellant enumerates as error the grant of BPC’s motion for summary judgment.

BPC did not construct the sewer line and did not place the non-traffic-bearing cover over the manhole. BPC merely paved the area after the sewer line had been constructed and after someone else had placed the cover over the manhole. There is no evidence that BPC knew or should have known that the cover was not appropriate. BPC’s expertise was in paving, not in sewer construction. There is no evidence that BPC performed its paving work negligently and the evidence shows that, after completion of the paving job, it was turned over and accepted. Under this evidence, the trial court correctly granted BPC’s motion for summary judgment. “[W]here a contractor who does not hold itself out as an expert in the design of work such as that involved in the controversy, performs its work without negligence, and the work is approved and accepted by the owner or the one who contracted for the work on the owner’s behalf, the contractor is not liable for injuries resulting from the defective design of the work.” David Allen Co. v. Benton, supra at 558. BPC did not hold itself out as an expert in sewer work, it performed its paving work without negligence, the paving work was approved and accepted, and BPC cannot be held liable for appellant’s injuries resulting from the placement of the non-traffic-bearing cover over the manhole.

Decided December 2, 1992 —

Reconsideration denied December 16, 1992

Bauer, Deitch & Raines, Henry R. Bauer, Jr., Gilbert H. Deitch, George R. Ference, for Carney.

Long, Weinberg, Ansley & Wheeler, Lance D. Lourie, Debra E. Levorse, for Shuler.

Dennis, Corry, Porter & Gray, R. Clay Porter, Andrew H. Schultz, for City of Calhoun.

Haas, Bridges & Kane, Stephen R. Kane, Tittsworth & Grabbe, John C. Grabbe IV, for JDN Construction Company.

Case No. A92A1507

5. The City enumerates as error the denial of its motion to transfer the action to Gordon County.

At the commencement of the instant action, there was a basis for venue in Fulton County. JDNCC and JDNEI were residents of that county and the City was alleged to be a joint tortfeasor. Although appellant subsequently settled with JDNCC and JDNEI, there has been no finding that JDNCC and JDNEI are not liable to appellant. It follows that the trial court correctly denied the City’s motion to transfer the action to Gordon County. Motor Convoy v. Brannen, 194 Ga. App. 795 (391 SE2d 671) (1990), aff’d 260 Ga. 340 (393 SE2d 262) (1990).

6. The judgment in Case No. A92A1506 is reversed with direction that the trial court enter judgment in accordance with Shuler’s motion for a directed verdict. The judgment in Case No. A92A1505 is affirmed as to BPC and as> to the City’s motion for a directed verdict on the issue of punitive damages, but reversed as to the City’s liability for compensatory damages with direction that a new trial be held as to that issue. The judgment in Case No. A92A1507 is affirmed.

Judgment reversed with direction in Case No. A92A1506. Judgment affirmed in part and reversed with direction in part in Case No. A92A1505. Judgment affirmed in Case No. A92A1507.

Pope and Johnson, JJ., concur.


text:
    A92A1519.
    HAMBY v. THE STATE.
    (426 SE2d 670)
   Andrews, Judge.

Hamby appeals his conviction of armed robbery, burglary, and two counts of terroristic threats resulting from an altercation with Marty Fordham, his nephew, and Marty’s wife, Wanda Fordham.

Viewed in favor of the verdict, the evidence was that Hamby asked Marty Fordham, who owned a farm, to let him know if Marty found him a good horse for sale. On August 1, 1989, at Marty’s suggestion, Hamby and Marty went to the Boyt residence where Hamby gave Boyt a check for $800 for a horse and a second check for $140 for tack. Because Hamby had no place to keep the horse, Marty rode it to his farm and agreed to keep it until Hamby was able to fence in a place for it. The next day, Hamby brought Fordham two bags of feed for the horse.

Thereafter, Hamby decided he was too old to deal with the horse and wanted Fordham to purchase it from him. There is no consensus as to what occurred in the interim between August 1, 1989 and March 15, 1990 with regard to any agreement about the horse. Hamby did call Wanda Fordham on March 15, 1990 and indicate that he wanted either the horse or his money. When Marty returned the call, Hamby cussed him and said he was going to get either the horse or the money, whatever it took. After hanging up, Marty received a call from Hamby’s wife, advising him to watch out because Hamby was on his way over.

Marty Fordham opened the back door as Hamby arrived and slung open the screen door. Hamby had a shotgun which he pointed at Fordham and his wife when she came in. Hamby then forced his way in and told them he was going to get some money or kill them all. Hamby then followed Marty Fordham as he went to the bedroom to get $300 cash which he was saving to build a barn. Fordham handed the three hundred-dollar bills to Hamby who threw one on the floor before he left with the $200.

Each Fordham stated that they heard Hamby threaten to kill the other.

1. In his first enumeration, Hamby contends the court erred in denying his motion for directed verdict on the armed robbery count because defendant did not have the requisite intent to commit theft. Although this ground was not specifically argued when the motion for directed verdict was made at the close of the State’s case, we consider the issue of the legal sufficiency of the evidence on this ground. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436) (1984).

As phrased by Hamby in the motion for new trial and here, the argument is that “defendant was simply going to obtain the horse to which he had a valid claim of right, or alternatively, his nephew would have to pay the monies promised.”

Even assuming that there had been a legally binding agreement reached as to the purchase of the horse from Hamby by Fordham, which evidence was disputed, this would not justify the conclusion reached by Hamby. As stated by the Supreme Court in answering the certified question of this court on this issue, “we hold the violent taking of money or property from the person of another by force or intimidation, without the consent of the owner, for the purpose of converting the same to the use of the taker for the payment of a demand claimed to be due him by one from whom the money or property is so taken, constitutes the offense of robbery. And that he can not under such circumstances justify the taking and be excused of the offense of robbery on the ground that the person from whom the money or property was so taken was indebted to him, and that the taking was to pay the debt.” Moyers v. State, 186 Ga. 446, 455-456 (197 SE 846) (1938).

2. The second enumeration is controlled adversely to Hamby by our ruling in Division 1.

3. Hamby contends that there was insufficient corroboration of the offenses of terroristic threats as required by OCGA § 16-11-37.

Here, the threat to each victim was made in the presence of the other and each testified as to the threat to the other. Such corroboration by a co-victim is sufficient. Boone v. State, 155 Ga. App. 937, 939 (1) (274 SE2d 49) (1980). “ ‘Slight circumstances may be sufficient for corroboration and the question of corroboration is one solely for the jury. If there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value. [Cit.]’ ” Id.

4. Prior to trial, Hamby filed his “Notice, Demand and Motion for Discovery,” an omnibus discovery request. In it, paragraph 6 contained the Brady request. Nine separate items of evidence were enumerated in that paragraph, most of which were categories of evidence which would be admissible at trial, as well as names of witnesses. These were followed by the statement that “[t]his request is made under the authority of Brady, [supra].” The motion specifically requested that all the enumerated items be examined in camera by the court and copies of all items not revealed be made a part of the record under seal for appellate review.

During the pretrial hearing conducted after the jury was impanel-led on the first day of trial, the following exchange occurred concerning this issue:

“State: My notes indicate a Brady
Defense: There’s a Brady
State: — which was done March 25th, 1991.
Court: All right.
Defense: It has been done?
State: It has been done.
Defense: I don’t have a notation of it having been done.
Court: I assume if it’s been done, there was nothing exculpatory or arguably favorable to the accused in the State’s file.
State: I don’t see an order, but my file indicates that a Brady was done March 25th, 1991.
Court: All right, sir.
State: Which would have been done by —
Defense: Judge Whalen.
Court: Well, in any event, you say one has been done?
State: Yes, sir.
Court: All right.
Defense: My files don’t indicate that.”

When defense counsel was then specifically asked what else he had, he responded “I think that’s all.”

Had defense counsel contested that such a review had actually taken place, as opposed to that fact not appearing in his notations, this was the point at which counsel should have insisted upon his request. “[A] trial court is not required to conduct an in camera inspection of the state’s file in connection with a ‘general’ Brady motion unless, after the state has made its response to the motion, the defense makes a request for such an inspection. [Cits.]” Tribble v. Stdte, 248 Ga. 274, 275 (1) (280 SE2d 352) (1981). Swann v. State, 256 Ga. 254 (347 SE2d 555) (1986); Salley v. State, 199 Ga. App. 358, 361 (2) (405 SE2d 260) (1991).

Therefore, no error has been shown.

5. Finally, defendant argues that the offenses of terroristic threats and armed robbery merged.

Pretermitting the issue of whether this issue has been preserved since no objection was made to the sentences entered, see Hill v. State, 183 Ga. App. 654, 657 (4) (360 SE2d 4) (1987), there was no merger. Barnett v. State, 204 Ga. App. 588, 589 (2) (420 SE2d 96) (1992).

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

Decided November 30, 1992 —

Reconsideration denied December 16, 1992

Adams & Adams, W. Allen Adams, Jr., for appellant.

W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

       Since this rationale provides no justification for his actions, Hamby’s reliance on Anderson v. State, 262 Ga. 7 (413 SE2d 722) (1992) is misplaced.

       Seeking disclosure of exculpatory evidence contained in the prosecution’s file pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

       The judge conducting the trial was not the same judge who conducted the pretrial proceedings.


author: McMurray, Presiding Judge.

text:
    A92A2354.
    ALCO STANDARD CORPORATION v. WESTINGHOUSE ELECTRIC CORPORATION.
    (426 SE2d 648)
   McMurray, Presiding Judge.

In January 1985, plaintiff Aleo Standard Corporation experienced problems with three autotransformers which were used to start a large electric motor. Plaintiff’s representative telephoned defendant Westinghouse Electric Corporation to arrange for the acceptance by defendant of the three autotransformers for repair and rewinding. Defendant agreed to rewind the autotransformers and they were shipped to defendant. The autotransformers were received by defendant on January 17, 1985, and the following day defendant sent to plaintiff a written acknowledgment of the work order.

The acknowledgment contained language which purported to provide, in lieu of all other warranties, whether statutory, express or implied, a limited warranty of the work to be performed, under which any defective work would be repaired for one year. Another provision provided that defendant would have no liability in contract or tort for any special, indirect, incidental, or consequential damages of a purchaser.

After defendant completed its work on the autotransformers, they were returned to plaintiff and reinstalled in the electric motor. Shortly thereafter, two of the autotransformers failed due to electrical faults.

Plaintiff filed this action seeking to recover damages for the interruption of business allegedly caused by the failure of the auto-transformers. As amended, the complaint states alternative theories of negligence and breach of contract. Plaintiff appeals following the grant of defendant’s motion for summary judgment. Held:

1. The superior court concluded that “a cause of action in negligence may not be maintained to recover for economic injury. Chrysler Corporation v. Taylor, 141 Ga. App. 671 [(234 SE2d 123)] (1971). Therefore, even if the defendant were negligent, the plaintiff cannot recover its damage on the negligence theory.” Plaintiff now argues that this case is governed by the “accident exception” to the general economic loss rule. “Under Georgia law, there is an accident exception to the general rule that an action in negligence does not lie absent personal injury or damage to property other than to the allegedly defective product. . . . An ‘accident’ should be defined as a sudden and calamitous event which, although it may only cause damage to the defective product itself, poses an unreasonable risk of injury to other persons or property.” Vulcan Materials Co. v. Driltech, 251 Ga. 383, 388 (4) (306 SE2d 253).

In this case, there is no evidence that any “accident” occurred. A defendant may prevail on summary judgment “by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. See, e.g., Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981). A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). This enumeration of error is without merit.

2. The superior court also concluded that the written contract between the parties, apparently the acknowledgment sent by defendant following receipt of the autotransformers, specifically limited warranties and excluded liability for loss of profits or revenue, so that plaintiff cannot prevail on its claim for breach of contract.

Plaintiff’s remaining enumeration of error contends that the superior court erred in failing to recognize that the limitation of warranty and liability provisions contained in the defendant’s acknowledgment, and which purportedly barred plaintiff’s breach of implied warranty claim, never became part of the contract between plaintiff and defendant.

There is some confusion in the arguments submitted in this case as to whether the transaction between the parties is governed by the “Uniform Commercial Code — Sales,” OCGA § 11-2-101 et seq. and particularly OCGA § 11-2-207. However, this article applies only to transactions in goods and not to service or repair contracts. OCGA §§ 11-2-102 and 11-2-106 (1). In the case sub judice, title to the auto-transformers was at all times in plaintiff. There was no sale of an autotransformer, but a contract for repair. The materials furnished in connection with the repair was merely an incidental part of the services provided. Furthermore, there is no suggestion of any defect in the materials furnished by defendant in connection with the repair contract. Plaintiff’s evidence is that the failure of the autotransformers arose from defendant’s negligence in failing to rewind the auto-transformers in a skillful and careful manner. It follows that the Uniform Commercial Code — Sales is not applicable to the relationship between the parties. Gee v. Chattahoochee Tractor Sales, 172 Ga. App. 351, 352-353 (1, 2) (323 SE2d 176); American Warehouse &c. of Atlanta v. Floyd’s Diesel Svc., 164 Ga. App. 106 (296 SE2d 64); Lovett v. Emory Univ., 116 Ga. App. 277 (156 SE2d 923). See also 85 ALR4th, § 21.

As the Uniform Commercial Code — Sales is inapplicable, the case sub judice must be examined under general contract principles. The acknowledgment sent by defendant to plaintiff must be viewed as an offer to amend the oral contract between the parties. There is no evidence that plaintiff ever explicitly accepted the acknowledgment as an amendment to the contract between the parties. Thus, with OCGA § 11-2-207 inapplicable to the transaction at issue, for summary judgment purposes, we must assume that the terms stated in the acknowledgment never became a part of the contract between the parties. Nonetheless, the implied warranties provided under OCGA §§ 11-2-314 and 11-2-315 are not applicable to the transaction between the parties, not because of the language of the acknowledgment but because the Uniform Commercial Code — Sales is not applicable to the transaction.

Viewing the oral contract between the parties under general contract principles, we find that a duty is implied in every service, repair or construction contract to perform it skillfully, carefully, diligently, and in a workmanlike manner. Coursey Bldg. Assoc. v. Baker, 165 Ga. App. 521, 524 (5) (301 SE2d 688); P. B. R. Enterprises v. Perren, 158 Ga. App. 24 (1) (279 SE2d 292); Howell v. Ayers, 129 Ga. App. 899, 900 (1) (202 SE2d 189). Generally, the question of whether a defendant exercised the required degree of skill is for the trier of fact. Doughty v. Simpson, 190 Ga. App. 718, 720 (380 SE2d 57). Since plaintiff’s evidence is that defendant failed to rewind the autotransformers in a skillful and careful manner, a jury question remains as to whether defendant breached its contractual obligation. The superior court erred in granting defendant’s motion for summary judgment.

Judgment reversed. Cooper, J., concurs.

Sognier, C. J., concurs in the judgment only.

Decided December 4, 1992 —

Reconsideration denied December 16, 1992.

Drew, Eckl & Farnham, Clayton H. Farnham, for appellant.

Schreeder, Wheeler & Flint, David Flint, Alexander J. Simmons, Jr., for appellee.