text:
    A90A0037.
    FINKELSTEIN v. ALBANY HERALD PUBLISHING COMPANY, INC.
    (392 SE2d 559)
   Banke, Presiding Judge.

This is a libel action filed by Albany attorney James Norman Finkelstein against The Albany Herald Publishing Company, Inc., to recover damages for certain allegedly defamatory statements made about him in a newspaper article dealing with his views on the manner in which the Dougherty County District Attorney’s office was being run. The case is before us on appeal from the grant of the defendant publisher’s motion for summary judgment.

The article appeared in the December 6, 1987, edition of The Albany Sunday Herald. It was headed, “MAVERICK LAWYER CHARGES DA WITH ‘LACK OF PROFESSIONALISM’ and in its closing paragraphs, beginning with the statement, “Finkelstein has come under legal fire himself,” it touched on various colorful incidents from the plaintiff’s own personal and professional life. Included in this portion of the article were statements that Finkelstein had once spent 10 days in jail rather than pay a fine after being found in contempt of court; that he had “in 1981 attempted to subpoena former President Jimmy Carter, former ‘first brother’ Billy Carter, and former Gov. George Busbee while defending a client, before having the subpoenas quashed by a Sumter Superior Court Judge”; that “[i]n 1983, charges of property damage and battery against Finkelstein in connection with a fracas in a fashionable Albany restaurant were dismissed by [a superior court judge] after [a state court judge] had released [him] on the condition he seek psychiatric treatment”; that “[d]uring the fracas, Finkelstein had thrown a chair through an antique stained glass window, allegedly in an attempt to hit attorney Larry Butler, who was representing Finkelstein’s common-law wife in a child custody case”; and that the charges against Finkelstein arising from this incident had been dismissed “after [he] made restitution to the restaurant owner.”

In response to this article, Finkelstein wrote a three-page letter to the newspaper complaining of various asserted inaccuracies in the foregoing statements and requesting that these inaccuracies be corrected. Three days later, on December 9, 1987, the defendant published a corrective article under the heading, “Clarification Provided of Lawyer’s Background,” reporting that Finkelstein had actually spent only 10 hours, rather than 10 days, in jail as the result of the contempt citation; that the woman referred to as his common-law wife was not actually his common-law wife, although they had “lived together from January 1980 to October of 1982, and she bore him a son”; and that the attorney who had represented him in connection with the criminal charges arising from the restaurant incident had “stated that Finkelstein claimed no responsibility for the damage caused, but paid the owner for the property damage.”

Finkelstein has acknowledged that much of what was reported about him in these articles was either true or, if false, not defamatory. For example, while he denies ever having had a marriage relationship with the woman described by the newspaper as his common-law wife, he concedes that they had a child together and that, under the circumstances, the false report that he was at one time married to her resulted in no injury to him. Similarly, he does not contend that he suffered any injury as a result of the report that he had spent 10 days, rather than 10 hours, in jail due to the contempt citation. With respect to the disposition of the criminal charges against him arising from the incident at the restaurant, the plaintiff does not deny that the charges were dismissed “after” he was released on bond under the condition that he obtain psychiatric treatment; however, he contends that by its wording the article conveyed the false impression that the charges had been dismissed because of his agreement to obtain psychiatric treatment, whereas they had actually been dismissed because no crime was committed. With respect to his attempt to subpoena former President Jimmy Carter, his brother Billy, and former Gov. George Busbee in defense of a client, he contends that by omitting to mention that the client in question had been charged with making terroristic threats against these three individuals and by falsely reporting that the subpoenas had been quashed (whereas, in actuality, Billy Carter appeared at the preliminary hearing, and the other subpoenas simply were never issued because the charges against the client were dismissed), the article conveyed the false impression that his actions in the case were frivolous or unprofessional. He asserts that the combined impact of these alleged errors, omissions, and half-truths was to portray him, falsely and maliciously, as an unstable individual who did not comport himself in a dignified and professional manner in his career as a lawyer. Held:

1. The plaintiff contends that the trial court erred in concluding that he was “at the very least, a limited public figure. . . .” We disagree.

One who voluntarily thrusts himself to the forefront of a public controversy in order to influence the resolution of the issues involved is deemed to be a public figure with respect to the controversy. See Gertz v. Robert Welch, Inc., 418 U. S. 323, 345, 351-2 (94 SC 2997, 41 LE2d 789) (1974); Hemenway v. Blanchard, 163 Ga. App. 668, 670-71 (294 SE2d 603) (1982). In the portion of the article dealing with his criticisms of the district attorney’s office, the accuracy of which is not disputed, Finkelstein is quoted as having said: “Something is being done here that’s not right and needs to be corrected. ... I feel like the kid in the story of the emperor’s new clothes. I’m the only one willing to say out loud what everybody else is thinking.” Also, it appears without dispute that three days before the publication of the original article the plaintiff made an appearance on a local television program for the purpose of, in his own words, discussing “the problems that had occurred in specific cases with the district attorney’s office.” Plainly, the plaintiff had voluntarily and deliberately thrust himself into the forefront of the controversy surrounding the district attorney’s office, thereby making himself a public figure with respect to that controversy.

2. In order for a plaintiff to recover damages for a defamatory statement made in a report concerning a controversy with respect to which he has become a public figure, he must prove that the defendant acted with “actual malice” in publishing the alleged defamatory falsehoods, that is, with knowledge that they were false or with reckless disregard of whether they were false or not. See New York Times v. Sullivan, 376 U. S. 254, 279-80 (84 SC 710, 11 LE2d 686) (1964); Curtis Pub. Co. v. Butts, 388 U. S. 130 (87 SC 1975, 18 LE2d 1094) (1967); Miller v. Woods, 180 Ga. App. 486, 488 (349 SE2d 505) (1986); Williams v. Trust Co. of Ga., 140 Ga. App. 49 (230 SE2d 45) (1976). “[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before pub-fishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U. S. 727, 731 (88 SC 1323, 20 LE2d 262) (1968).

Decided March 12, 1990

Rehearing denied March 26, 1990

James N. Finkelstein, pro se.

Divine, Wilkin, Deriso, Raulerson & Fields, E. B. Wilken, Jr., Heyman & Sizemore, William H. Major, for appellee.

In affidavits submitted in support of the defendant’s motion for summary judgment, both the reporter who had written the allegedly defamatory article and her editor averred that, at the time of publication, they believed all of the statements concerning the plaintiff were true. Not only has the plaintiff presented no evidence tending to controvert these averments, his own deposition testimony tends to support them. For example, while the plaintiff denied having thrown a chair at anyone during the fracas with Butler at the restaurant, he acknowledged that he tried to fight Butler, and he did not deny that he had picked up a chair as if to hit him with it before ultimately tossing it to one side. In addition, he acknowledged both that the newspaper’s version of the incident was, in effect, consistent with Butler’s and that he could identify no other witnesses whose account of the incident might be consistent with his own. While he maintained that the charges against him arising from the incident had been dismissed because no offense was committed rather than, as the article reported, because he had made restitution to the restaurant’s owner, he was less than forthcoming on the issue of whether such restitution had in fact been made, going so far as to refuse to permit the attorney who had represented him in dealing with the charges to be questioned on the matter. Under the circumstances, even assuming arguendo that the article contained any statements which might otherwise be considered defamatory, the trial court correctly concluded as a matter of law that the defendant had neither believed they were untrue before publishing them nor entertained serious doubts about their accuracy. It follows that the court did not err in granting the defendant’s motion for summary judgment. Accord Miller v. Woods, supra; Williams v. Trust Co. of Ga., supra.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A90A0386.
    DYOUS v. THE STATE.
    (392 SE2d 730)
   Banke, Presiding Judge.

The appellant was charged in a three-count indictment with theft by conversion, making false statements and writings in connection with a matter within the jurisdiction of a governmental agency or political subdivision, and forgery in the first degree. All three charges were based on allegations that she had misappropriated funds belonging to the Sumter County Comprehensive High School at a time when she was employed there as a secretary/bookkeeper. The appellant was convicted of forgery in the first degree and acquitted on the other two charges. She brings this direct appeal from her conviction and sentence.

On July 11, 1988, the appellant prepared for the school principal’s signature a check for $357.60, drawn on a school bank account and made payable to Seacoast Supplies, Inc. The appellant took this check home after it was signed by the principal, and it was thereafter deposited into a checking account maintained by her in the name of Ann’s Typing Services. The check shows an apparent endorsement by the named payee, but with the account number of Ann’s Typing Services. The appellant testified that she did not know how the check came to be deposited into her account. There is no question, however, that the funds represented by the check were credited to her account and appropriated by her to her own use. Held:

1. The appellant contends that the trial court erred in refusing to conduct an in-camera inspection of certain tape-recorded interviews which the district attorney had conducted with various individuals, both witnesses and non-witnesses, prior to trial. The district attorney described these as “exploratory interviews,” performed while he was “in the analysis phase of the case trying to decide whether the case warranted presentation to the Grand Jury.”

Although the appellant’s counsel had filed a general Brady motion several months earlier, seeking any and all exculpatory information in the possession of the state, his request for an in-camera inspection of the tapes did not come until just before trial. The trial judge denied the motion as untimely, stating that it would take several hours to listen to the tapes and that the appellant had failed to make any showing that they contained any exculpatory information. We find no error. Even accepting the counsel’s assertion that he did not learn of the existence of the tapes until the week prior to trial, that does not excuse his having waited until immediately before the commencement of the trial to ask the trial court to conduct a review which would have required several hours to perform.

2. “ ‘Forgery, like fraud or any other fact, may be proved by circumstantial evidence.’ [Cits.]” Hudson v. State, 188 Ga. App. 684, 689 (374 SE2d 212) (1988). Viewed in the light most favorable to the verdict, the evidence introduced at trial was sufficient to enable a rational trier of fact to find the appellant guilty of first degree forgery beyond a reasonable doubt. Accord Gaily v. State, 181 Ga. App. 906, 907 (1) (354 SE2d 442) (1987). See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. The appellant complains that certain “repeated restrictions of the right to cross-examination cumulatively and individually constitute [d] an undue abridgment of the right of cross-examination provided by law.” We have considered each of the instances complained of and have determined that none of them constitutes ground for reversal of the appellant’s conviction. “This state does not follow a ‘cumulative error’ rule of prejudice. Any error of record . . . must stand or fall upon its own merits and is not aided or aggravated by the accumulative effect of other claims of error.” Butler v. State, 163 Ga. App. 475, 476 (294 SE2d 700) (1982). Accord Montford v. State, 168 Ga. App. 394, 397 (6) (309 SE2d 650) (1983).

4. The appellant contends that the court erred in refusing to allow her counsel to read to the jury selected portions of a tape-recorded interview he had conducted with one of the state’s witnesses approximately a year before trial, in which the witness had assertedly made statements which were inconsistent with her testimony at trial. See generally OCGA § 24-9-83; Carter v. State, 244 Ga. 803, 806 (262 SE2d 109) (1979). The appellant’s counsel was in possession of a transcript of the tape, which had evidently been prepared by his secretary. He initially asked the witness to read this transcript aloud in its entirety, but the judge directed her to read it to herself first. After she had done so, defense counsel asked her if her current testimony was consistent with what was in the document. Although the trial transcript reveals merely that the witness nodded her head in response to this inquiry, the parties appear to be in agreement that this nod was a negative one. Defense counsel then sought to introduce the entire transcript into evidence, whereupon the state objected on the ground that it had not been authenticated. The trial court sustained this objection, stating: “Someone will have to take the stand under oath and testify under oath as to what was said. That is the only way that that testimony could be received.”

We find no error. The transcript clearly was not self-authenticating and thus was not admissible in the absence of at least some semblance of a showing that it was accurate. See generally Estes v. State, 232 Ga. 703, 709 (4) (b) (208 SE2d 806) (1974).

5. We have carefully examined the appellant’s remaining enumerations of error and have determined that they establish no ground for reversal.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.

Decided March 12, 1990

Rehearing denied March 26, 1990.

William J. Murray, for appellant.

John R. Parks, District Attorney, for appellee.


author: Pope, Judge.

text:
    A89A1611.
    AMERICAN COMMUNITIES CORPORATION v. RIHT MORTGAGE CORPORATION.
    (392 SE2d 318)
   Pope, Judge.

Appellant American Communities Corporation (ACC) appeals a verdict and judgment awarded to appellee RIHT Mortgage Corporation (RIHT). RIHT sued ACC for breach of contract and ACC counterclaimed for breach of contract, fraud and fraud in the inducement. ACC was a real estate developer. In 1985, ACC was developing a condominium project with a different twist. The project was located near the campus of Southern Tech and was intended to house Southern Tech students. ACC sought investors to buy the condominium units who would in turn rent to students. Because the loans were to be made to investors who would not live in the units, obtaining lenders for the project was more difficult. At this point, ACC sought the services of Developers Mortgage Company, a mortgage broker, to find permanent financing for the project. Thomas Stacey, a Developers vice president, testified that in the course of “shopping the loan” he mentioned it to an employee of RIHT. RIHT became interested and found a source of permanent financing and entered into a commitment with ACC to “originate and close first mortgage loans on investor owned properties” for the project. RIHT also agreed to pay Developers a brokerage fee on the loan commitment and additional fees as the individual loans closed. The commitment agreement between RIHT and ACC required ACC to pay RIHT $56,000 as a non-refundable commitment fee. ACC gave RIHT a check for this amount, but RIHT lost it. When RIHT asked ACC to replace it, ACC refused to pay because it was dissatisfied that no loans had closed.

1. In its first enumeration, ACC argues that the trial court erred in denying its motion for directed verdict on the issue of whether Developers was the agent of RIHT. ACC argues that the term “originate and close” in RIHT’s commitment letter is capable of but one meaning: that RIHT had undertaken to find borrowers, take loan applications and to process the loans to closing. ACC argues that if the court had construed that term correctly it would then be compelled to find that Developers was the agent of RIHT. We find no merit in this argument. We need point only to the same case cited by the trial court, National Mfg. &c. Corp. v. Dekle, 48 Ga. App. 515 (173 SE 408) (1933). The court in Dekle said in pertinent part: “It is rudimentary law that parol evidence can not generally be admitted to contradict or vary the terms of a written contract. But if the writing is ambiguous, evidence is admissible to explain the ambiguity. Or if the writing does not purport to contain all the stipulations of the contract, parol evidence is admissible to prove other portions thereof not inconsistent with the writing. . . . Where the language of the written instrument may be fairly understood in more ways than one, it should be taken in the sense put upon it by the parties at the time of its execution, and the court will hear evidence as to the facts and surroundings. As a general rule, the construction of a contract is a question for the court; but where the terms of a written instrument are ambiguous, its meaning should be left to the jury.” (Citations, punctuation and indention omitted.) Id. at 521.

Trial of this case consumed six days and produced a transcript of nearly 1,000 pages. Several witnesses from the mortgage community testified and each had a different idea of what the term “originate and close” meant. Even ACC’s own expert witness testified that the term meant what the lender wanted it to be. (“I would establish the rules at the very beginning as to what their definition of ‘originate’ is.”) Further, the evidence showed that the contracts involved were only partly memorialized by the various letter agreements introduced into evidence. A directed verdict is proper only when there is no conflict in the evidence and a particular verdict is demanded. Russell v. Wickes Lumber, 190 Ga. App. 16 (9) (378 SE2d 148) (1989). Such was not the case here and the issue was submitted properly to the jury.

2. We have reviewed the court’s charge on agency and find ACC’s argument that it was confusing and misleading to be without merit.

3. The trial court directed a verdict in favor of RIHT on ACC’s claim for fraud in the inducement and ACC now enumerates this as error. We find no error. ACC’s fraud claim was based on its contention that it would not have entered the commitment agreement had it known that RIHT did not have private mortgage insurance lined up at the time of the agreement. However, the evidence is undisputed that RIHT did have private mortgage insurance available as was required by Item 11 in the agreement and ACC presented no evidence that any closing was lost due to RIHT’s handling of the private mortgage insurance. Each of the five essential elements of fraud, including damage, must be shown to support an action for fraud. Romedy v. Willett Lincoln-Mercury, 136 Ga. App. 67 (2) (220 SE2d 74) (1975).

4. For the reasons set out above, the trial court did not err in refusing to grant ACC’s motion for new trial.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.

Decided March 14, 1990

Rehearing denied March 27, 1990

James W. McKenzie, Jr., for appellant.

McCalla, Raymer, Padrick, Cobb & Nichols, Carol V. Clark, Teresa L. Perrotta, for appellee.


text:
    A89A1783.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. ALMA EXCHANGE BANK & TRUST.
    (392 SE2d 320)
   Pope, Judge.

This appeal follows the trial court’s entry of judgment for plaintiff/appellee Alma Exchange Bank and Trust (“Alma Bank”). The case was tried in the trial court primarily on a stipulation of facts and documents. The record shows that Alma Bank made two loans to the Worth family which were secured by deeds to secure debt on real estate owned by Mr. Worth. The deed provided, in relevant part, that the Worths were required to “carry fire and extended coverage insurance on the premises in an amount with full insurable value of said premises and as may be required to prevent the lender from being or becoming a co-insurer, [with] an insurance company or companies acceptable to the lender, with loss, if any, payable to the lender.”

Defendant/appellant Georgia Farm Bureau Mutual Insurance Company (“Georgia Farm”) issued a policy insuring the property to the Worths on October 9, 1980. Approximately one year later, the property burned. At that time it was discovered that Alma Bank had not been listed as mortgagee or lienholder on the policy issued by Georgia Farm. Consequently, by letter dated October 14, 1981, Alma Bank informed Georgia Farm that it had a recorded interest in the property and requested that it be listed as lienholder on the policy. On December 23, 1981, Alma Bank’s attorney wrote Georgia Farm another letter, in which he again explained Alma Bank’s interest in the property, and requested that “any drafts you give to Mr. Worth reflect the true and correct position of Alma . . . Bank as lien holder.” On December 31, 1981, Georgia Farm responded to this request by letter stating “In the event any payment is made relating to this fire loss, we will include your client’s name, The Alma Exchange Bank & Trust, on these payments.”

On March 18, 1982, the Worths filed suit against Georgia Farm based on its failure to pay the claim under the policy. That suit initially resulted in a directed verdict for Georgia Farm; however, this court reversed the trial court’s grant of directed verdict in Worth v. Ga. Farm &c. Ins. Co., 174 Ga. App. 194 (330 SE2d 1) (1985). Before the case could be retried, the parties entered into a settlement agreement and, as part of that agreement, the Worths executed a release in favor of Georgia Farm, in which, inter alia, they agreed to indemnify Georgia Farm against any claims to the proceeds under the policy.

Alma Bank subsequently sued the Worths for the debts secured by the deed to secure debt. Judgment was entered in favor of the Bank on May 28, 1986, for $35,000. Alma Bank instituted the present action against Georgia Farm on January 31, 1986, prior to the time judgment was reached for it against the Worths. In this action, Alma Bank seeks the payment of $34,352.58 plus interest and attorney fees for failure of Georgia Farm to pay it the proceeds under the policy as its representative had agreed to do in its letter of December 1981. This appeal follows the trial court’s entry of judgment in favor of Alma Bank.

1. On appeal, Georgia Farm contends that the promise by its representative to include Alma Bank on any proceed payments made under the policy was without consideration and hence unenforceable. See OCGA §§ 13-3-40 (a); 13-3-42 (a) & (b). We disagree. “ ‘Forbearance to prosecute a legal claim and the compromise of a doubtful right are both sufficient considerations to support a contract.’ [Cits.]” Pitts Truck Air v. Mack Trucks, 173 Ga. App. 801, 803 (3) (328 SE2d 416) (1985). In the case at bar, unlike the cases relied on by Georgia Farm, Alma Bank had a legally enforceable right to the insured property and, by virtue of the terms of its deed to secure debt with the debtor, a legally enforceable equitable lien to the insurance proceeds. By virtue of its legally enforceable right to the subject property, Alma Bank had both the right to proceed directly against the insurance company or to intervene in the action between the, insurance company and the debtor. See Worth v. Ga. Farm Bureau, supra (in which Douglas Production Credit Association, claiming it had a valid assignment to part of the proceeds under the policy, intervened in the action between the Worths and Georgia Farm); see also Suttles v. Vickery, 179 Ga. 751 (177 SE 714) (1934). Thus, the trial court correctly concluded that the Bank’s reliance on the promise of the insurer’s representative, and the resulting forebearance of legal action to enforce its right to the proceeds, constituted sufficient consideration under the facts of this case. See OCGA § 13-3-42; Pepsi Cola Bottling Co. v. First Nat. Bank, 248 Ga. 114 (2) (281 SE2d 579) (1981).

2. We have examined Georgia Farm’s remaining enumerations and find them to be without merit. Specifically, we find no merit to its argument that the indemnity agreements between it and the Worths and between the Worths and Alma Bank, created a “circular” indemnity by virtue of which Alma Bank should be permanently enjoined from pursuing its claim against Georgia Farm. Likewise, we find no merit to the argument that the indebtedness has been satisfied and hence the trial court erred in assessing damages in the amount of $27,532.59 for Alma Bank and against Georgia Farm.

Decided March 14, 1990

Rehearing denied March 27, 1990

Dillard & Landers, Terry A. Dillard, Bryant H. Bower, Jr., for appellant.

William J. Edgar, M. Theodore Solomon, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Beasley, Judge.

text:
    A89A1989.
    MALAK v. FIRST NATIONAL BANK OF ATLANTA.
    (393 SE2d 267)
   Beasley, Judge.

Plaintiff Malak appeals from the grant of defendant First National’s motion for partial summary judgment on counts alleging that First National wrongfully dishonored depositor Malak’s check. The check was a quarterly payment on a promissory note secured by a parcel of land Malak had purchased from McGinnis. See Malak v. McGinnis, 257 Ga. 622 (361 SE2d 798) (1987).

Malak, an alien, married a U. S. citizen in 1984 and purchased real property from McGinnis in 1985 for $101,400, paying $15,000 down and giving a promissory note and security deed for the balance of $86,400. The note called for $1,800 quarterly and $40,000 fire insurance. ’There was a fire in the chicken houses and McGinnis questioned whether Malak was maintaining the required amount of insurance. Also at least one of Malak’s payments bounced.

Malak had a checking account with First National. Late in 1985, because of marital difficulties involving that account, he visited a branch office to take remedial action. After discussion he decided to close the account and open a new one. He contends the bank officer assured him that two specified outstanding checks on the old account would be honored. Malak executed a countercheck for $467.03, the balance on the old account, for deposit in his new account on January 13, 1986. The check was deposited on January 14 but, by January 17, was dishonored and charged back as a debit to the new account.

Malak’s payment on the note was due January 17. He wrote a check on that date for $1,800. McGinnis accepted and deposited it, but when it was presented to First National, Malak’s balance was only $1,655.87. It would have been $2,122.90 if the $467.03 counter-check had not been dishonored. Because the balance was insufficient, First National dishonored the note payment check.

Notice was sent to Malak which should have arrived about a week later, but he did not obtain his mail until February 3. He then visited a bank office and obtained a letter of apology by First National acknowledging its mistake, which he delivered to McGinnis the same day.

On February 4 McGinnis’ attorneys notified Malak they were foreclosing on the property. On February 27 Malak sought a temporary restraining order to prevent the property’s sale. During February Malak’s account contained sufficient balances to cover the $1,800 check, but no effort was made to re-present the check, cover it or issue another. Malak testified by affidavit that he offered to pay the $1,800 by check or cash but was told by McGinnis’ attorney it was too late, and he intended to proceed with foreclosure.

At the TRO hearing on March 4, “the trial court ruled that if First [National] would that day guarantee payment on [Malak’s] check, it would grant [his] application for injunctive relief. The trial court then recessed for the parties to telephone First [National]. It is undisputed that due to a second bank error a representative of First [National] stated that [Malak’s] check would not be honored.” Malak, supra at 623. Apparently there was an unrelated hold on Malak’s account. The TRO was denied and the sale occurred, resulting in a deficiency. The sale was confirmed and Malak’s motion to set it aside waa denied. The Supreme Court affirmed the denial of the motion but reversed the sale confirmation. Malak then filed the instant action seeking damages from First National.

After discovery, First National moved for summary judgment. The trial court heard the matter and concluded: “there is no genuine issue as to any material fact that the foreclosure of plaintiff Malak’s property and damages claimed by plaintiff Malak as a result thereof and related thereto were not proximately caused by the allegedly wrongful dishonor or wrongful return of plaintiff’s $1,800 check dated January 17, 1986, or by any other act of defendant or its employees, but rather was proximately caused by the actions and inactions of plaintiff Malak and persons not parties to this lawsuit, and that defendant is entitled to judgment as a matter of law.” The order pointed out that defendant bank gave prompt notice of the dishonor and on January 28, 1986, credited the check for $467.03 which had resulted in the dishonor of the $1,800 payment check, and that “Malak failed to deliver a replacement check to his mortgagees by February 3, 1986 or thereafter.”

Malak enumerates as error the conclusion that the wrongful dishonor was not the proximate cause of his losses resulting from the foreclosure.

On summary judgment the movant must establish the nonexistence of genuine issues of material fact even as to those issues on which the opposing party would have the trial burden of proof. Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973). “ ‘[T]he party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence.’ ” Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981).

“A payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item. When the dishonor occurs through mistake liability is limited to actual damages proved. If so proximately caused and proved damages may include damages for an arrest or prosecution of the customer or other consequential damages. Whether any consequential damages are proximately caused by the wrongful dishonor is a question of fact to be determined in each case.” OCGA § 11-4-402. Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55 (390 SE2d 55) (1989) discusses the contract versus tort theories of recovery under UCC § 4-402 and holds that “wrongful dishonor may be considered a tort.” Id. at p. 62.

First National established a strong position for a decision that the wrongful dishonor, which it does not dispute, was not the proximate cause of the eventual loss of the property through foreclosure. This would be sufficient to support a jury finding in favor of the bank. Nevertheless, on motion for summary judgment, Malak is the party opposing the motion and is entitled to a construction of the evidence in his favor. He introduced proof by affidavit that the holder of the security deed, McGinnis, would not have accepted any untimely tender of the amount owed after the first check was dishonored. Under the terms of the promissory note and security deed, upon default in a payment McGinnis was entitled to declare the entire amount due and proceed without notice to foreclose the property. Duncan v. Lagunas, 253 Ga. 61, 63 (2) (316 SE2d 747) (1984); Fulton Nat. Bank v. Horn, 239 Ga. 648, 650 (238 SE2d 358) (1977); Oak Mountain Dev. Corp. v. Harrell, 162 Ga. App. 186, 187 (1) (290 SE2d 177) (1982).

First National had the burden of establishing as a matter of law that the damages Malak suffered were not the result of its wrongful dishonor of the $1,800 check. According to Malak’s proof the dishonor created a default he could not cure. Malak’s subsequent failures, primarily of omission, and other happenings would lessen the damages he eventually would suffer but would not remove the bank’s wrongful dishonor as a matter of law from the Codal “proximate cause.” That remains to be determined as a question of fact. Where the proof “does not plainly, palpably and indisputably show a lack of proximate cause,” the issue is for the jury. DeKalb County Hosp. Auth. v. Theofanidis, 157 Ga. App. 811, 812 (2) (278 SE2d 712) (1981).

Recognition is made of the policy of some courts to treat a negligent or mistaken wrongful dishonor differently from a wilful or flagrant wrongful dishonor, treating the former under principles of contract and the latter under principles of tort. See Hawkland, Uniform Commercial Code Series, Vol. 6, § 4-402:08. In the former situation, the test is the contractual term “foreseeability,” rather than the tortious term “proximate cause.” First National cites Evra Corp. v. Swiss Bank Corp., 673 F2d 951 (7th Cir. 1982), a classic example of that reasoning. There Swiss Bank failed to deliver a $27,000 check in time so that Evra suffered the loss of a $2,000,000 charter which was cancelled when payment was not prompt. The court applied Illinois law and held that only foreseeable damages are recoverable in a breach of contract action. It held defendant bank not liable for consequential damages because it had not been placed on notice of the special circumstances surrounding the check issuance. The decision noted that the bank was unaware of the purpose of the check and observed that the party able to avoid the consequences at the least cost should bear the burden rather than the unknowing defendant.

Decided March 12, 1990

Rehearing denied March 27, 1990

O. Jackson Cook, for appellant.

Hansell & Post, W. Lyman Dillon, Jones, Day, Reavis & Pogue, Michael J. Templeton, for appellee.

Although based upon mere negligence rather than wilful or wanton action, Malak’s theory of recovery rests upon tort rather than contract. See Hawkland, supra at § 4-402:05, and Kneller, supra. In any case we adhere to the language of the code rather than embellishing it with additional requirements. The test is “proximate cause.” See OCGA § 51-12-9. “ 'In order that a party may be liable in negligence, it is not necessary that [it] should have contemplated or even been able to anticipate the particular consequences which ensued, or the precise injuries sustained by the plaintiff. It is sufficient, if, by exercise of reasonable care, the defendant might have foreseen that some injury would result from [its] act or omission, or that consequences of a generally injurious nature might have been expected.’ ” Mitchell v. Schofield’s Sons Co., 16 Ga. App. 686, 690 (6) (85 SE 978) (1915). Accord Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 696 (1) (51 SE2d 705) (1949); Mathis v. Mathis, 42 Ga. App. 1, 7 (155 SE 88) (1930).

Issues remain also as to mitigation of damages by plaintiff, OCGA § 51-12-11, and the extent to which he was damaged as a result of the wrongful dishonor coupled with the other circumstances eventually resulting in foreclosure and sale of plaintiff’s property, OCGA § 51-12-10.

Summary judgment on the issue of proximate cause was error.

Judgment reversed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A2114.
    FRAZIER v. THE STATE.
    (393 SE2d 262)
   Beasley, Judge.

Frazier was convicted of child molestation, OCGA § 16-6-4 (a), for engaging in sexual intercourse with his seven-year-old daughter.

1. His first enumeration is governed by the directive in Mills v. State, 137 Ga. App. 305, 306 (2) (223 SE2d 498) (1976): “ ‘In examining a prospective juror, counsel for the accused should not ask technical legal questions in regard to the presumption of innocence [or the State’s burden of proof], but should confine his questions to those which may illustrate any prejudice of the juror against the accused, or any interest of the juror in the cause.’ [Cit.]” The trial court did not abuse its discretion in refusing to permit Frazier’s counsel to voir dire prospective jurors on whether or not they could “follow two basic rules of law that apply in every case, the presumption of innocence and the duty to not find the defendant guilty unless they believe his guilt beyond a reasonable doubt. . . .”

2. Contrary to appellant’s position, a review of the evidence including videotapes of March 3 and July 10, 1987, shows that it was sufficient for any rational trier of fact to conclude that Frazier was guilty of the alleged child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

During the 1986-1987 school year, the child lived in the home of her grandmother and step-grandfather, Fields. Her father, Frazier, also resided there in October and November 1986.

Teacher’s aide Farmer noticed that the girl appeared unkempt, was often aggressive and nervous, and sometimes did not feel like working. In January 1987, upon inquiry by Farmer, the child disclosed that she was not feeling well because her “PaPa” (step-grandfather) had “bothered” her the night before. (Fields was tried as a co-defendant and convicted of molestation. His convictions were affirmed on appeal. Fields v. State, 194 Ga. App. 149 (390 SE2d 71) (1990)). A few days later, the child disclosed that she had been “bothered” again by Fields. Farmer alerted the child’s teacher, Collins.

In February, the child appeared to be ill with a fever and once again told Farmer that Fields had bothered her the night before, indicating that he had cursed at her, pulled her pants down and felt between her legs. The child also related that Fields had been “tickling” her and that such conduct was supposed to be a secret. Farmer alerted Collins who in turn alerted the school principal. The child again related the touching by Fields and pointed to her front between her legs. Walden, of the county Department of Family & Children Services, was contacted.

During an interview with the child, she showed through the use of anatomically correct dolls that she had been touched between the legs by Fields and said she had related the conduct to her grandmother. She also stated that Fields often slept with her in the same bed until her grandmother returned from work. The child was placed in foster care by emergency order. On March 3, a videotape was made of Walden’s interview of the child.

Walden referred the child to child psychologist Jordan on March 17. When questioned by Jordan concerning Fields, the child became visibly upset and exhibited behavioral characteristics deemed by Jordan to be common for a sexually abused child. A formal therapy program with Jordan was begun in June.

In July, Walden of DFACS received a call from the child’s foster parent, Adams, informing her that the child had stated she had sexual intercourse with Frazier and Fields. As a result, a second videotape interview was conducted. Both were viewed by the jury.

Psychologist Jordan testified that, when interviewed in mid-July, the child related that her dad had called her in, told her to get a towel and go to the bedroom and get undressed. She stated, “He played with my private part. He put things in me. It hurt.” When asked what happened when her father did that, the child got on the floor and demonstrated a bouncing with her pelvic area. She stated that she told her grandmother what happened, told her father not to do it again, and that Frazier stated he would if he wanted to. When asked what the towel had been for, she said it was put over her face. Jordan brought Walden in and had the child repeat the incident. This time the child added that Fields had done the same thing to her, after her father. She related that Fields was outside with her grandmother cutting wood and then came inside into Frazier’s room. She stated Frazier had finished “f-.....” her and then Fields did it, too. She described this by lying on the floor and demonstrating, with her legs spread. She stated that “some red stuff,” blood, came out and she showed her grandmother. She also told Jordan she cried when both men kissed her lips.

Jordan testified that the detail with which the child was able to describe the sexual activities with Frazier and Fields was far beyond the normal knowledge of a child her age. He explained how the child’s behavioral characteristics were consistent with the child sexual abuse accommodation syndrome.

At trial, the child was called as the. court’s witness pursuant to Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987), and testified similarly.

3. Appellant contends the court erred in granting the State’s motion for joinder and in failing to grant his motion for severance, which was mandatory because Fields was also charged with a second act of molestation unrelated to the alleged sexual intercourse.

“[W]hen two or more defendants are charged with different offenses, they may be tried jointly where the offenses were part of a common scheme or plan; and if a joint trial does not prevent or hinder a fair determination of each defendant’s guilt, there is no abuse of discretion in denying severance.” Allen v. State, 144 Ga. App. 233, 234 (2) (240 SE2d 754) (1977) applying Padgett v. State, 239 Ga. 556 (238 SE2d 92) (1977). There is clearly no abuse in denying severance where “ ‘the crimes alleged were part of a continuous transaction conducted over a relatively short time, and “. . . from the nature of the entire transaction, it would be almost impossible to present to a jury evidence of one of the crimes without also permitting evidence of the other. . . .” ’ [Cit.]” Moore v. State, 165 Ga. App. 65 (2) (299 SE2d 400) (1983).

Frazier and Fields were charged with committing the same acts, that is, sexual intercourse with the same victim in the same place at approximately the same time. Possibly the second act was even committed in the presence of the committer of the first act. It would have been almost impossible for the evidence regarding one act of intercourse to be introduced without evidence of the other.

The same analysis applies to the joinder for trial of the second charge against Fields which accused him of touching and fondling the victim’s vagina. Although Frazier was not implicated in this charge, the act was part and parcel of the pattern of sexual abuse of the child during the school year in question. Indeed, the child’s report of Fields’ molestation by touching triggered the investigation which led to discovery of Frazier’s molestation. Joinder was necessary in order to permit a comprehensive presentation of the State’s evidence.

Denying severance and permitting joinder was not error.

4. Appellant contends that the court erred in denying his motion in limine to exclude testimony of fondling regarding the second charge against Fields and the victim’s testimony relating to acts other than sexual intercourse. For the reasons discussed in Division 3, there was no error.

5. Appellant contends, without authority, that the court erred in denying his motion for the prosecution to make the victim available for questioning because it amounted to the State’s holding or prohibiting access to a witness.

“ ‘ “Accused and his counsel have the right to interview witnesses before the trial; and the state has no right to deny them access to a witness material to the defense, but a witness cannot be compelled to submit to such interview.” ’ [Cit.]” Rutledge v. State, 245 Ga. 768, 770 (2) (267 SE2d 199) (1980). “[W]hen the witness is a child, the child’s guardian may make this decision.” Dover v. State, 250 Ga. 209, 212 (2) (296 SE2d 710) (1982).

The child had been under the supervision of DFACS since 1980. There is no evidence that the State instructed DFACS to refuse to permit questioning of the child. The court ordered the State to produce the videotapes for defense review and for the involved DFACS personnel to be accessible for defense interview. Under these circumstances, pretrial access to the child was not mandatory.

6. Appellant contends the trial court erred in denying a mistrial because the State failed to supply certain exculpatory material in violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). The material was information from the victim’s foster mother that the victim told lies and that in July 1987 the child and some other children took off their clothes and exhibited their bodies to each other.

Appellant made no showing that the information was in the State’s file rather than in the possession of DFACS. If the material was not in the State’s own file, it was not required to investigate the defendant’s case for him. See Hicks v. State, 232 Ga. 393 (207 SE2d 30) (1974).

After examining the DFACS file, the court ordered its disclosure save for material relating to future foster placement of the child. It allowed defense counsel an opportunity to review the file and to interview the State’s DFACS witnesses. The defense questioned DFACS worker Walden and psychologist Jordan to explore the alleged lying and the episode of nudity. Any earlier failure to disclose was not shown to have hampered the defense, and the refusal of a mistrial was not error.

7. Appellant contends that the use of the videotapes at trial denied the right to confrontation under the Federal Constitution, citing Coy v. Iowa, 487 U. S. _ (108 SC 2798, 101 LE2d 857) (1988). The State constitution is not relied upon. See Lee v. State, 177 Ga. App. 698 (340 SE2d 658) (1986); Davenport v. State, 172 Ga. App. 848, 850 (2) (325 SE2d 173) (1984).

The admission of videotapes in child molestation cases is governed by OCGA § 24-3-16. See Hunter v. State, 194 Ga. App. 711 (391 SE2d 695) (1990). It does not infringe upon a defendant’s Sixth Amendment right to confront witnesses. Sosebee v. State, supra. The child victim did testify pursuant to Sosebee. The constitutional challenge to the child hearsay statute has been reconsidered in light of Coy and found to be meritless. Sosebee v. State, 190 Ga. App. 746, 748 (2) (380 SE2d 464) (1989). See also Ortiz v. State, 188 Ga. App. 532, 533 (2) (374 SE2d 92) (1988) for a detailed discussion of the federal right to confrontation in a child molestation prosecution.

8. The next question is whether the court erred in admitting the July 10 videotape without determining the child’s competency. Appellant urges that the earlier tapes cast serious doubts on it.

Competency was to be resolved by the court, as the trial occurred before April 19, 1989, the effective date of OCGA § 24-9-5 (b). Prior to the State resting, the child was examined by all parties pursuant to OCGA § 24-3-16 and Sosebee. She was found to be “qualified.”

“ ‘In Smith v. State, 247 Ga. 511, 511-12 (277 SE2d 53) (1981), the Supreme Court defined the standard of competency of a child to be a witness as being “not that he be able to define the meaning of an oath, nor that he understand the process under which the oath is administered, but rather that he know and appreciate the fact that as a witness he assumes a solemn and binding obligation to tell the truth relative to the case and concerning such matters as he may be interrogated on, and that if he violates the obligation he is subject to be punished by the court.”

“ ‘Once a child’s competency has been thoroughly tested in court, it is within the sound discretion of the trial court whether or not to rule the child competent to testify as a witness. [Cits.] Because the trial court has had the opportunity to observe the child during the competency examination and because such observation provides material indicia of competency (or the lack thereof) which this court cannot glean from a cold record, we will upset the ruling of competency only when the record clearly shows that the child was not competent as defined in Smith v. State, supra. [Cits.] A further reason for the hesitation of appellate courts to interfere with competency rulings is that the trial court’s ruling as a matter of law that the child is competent [cits.] is followed by the jury’s independent determination of the child’s credibility as a matter of fact. [Cit.]’ [Cit.]” Westbrook v. State, 186 Ga. App. 493 (1) (368 SE2d 131) (1988). See also In the Interest of J. E. L., 189 Ga. App. 203, 204 (1) (375 SE2d 490) (1988).

The record, including the videotapes, demonstrates that there was no abuse of the court’s discretion in finding the child qualified to testify. See Sprayberry v. State, 174 Ga. App. 574, 575-576 (1) (330 SE2d 731) (1985).

“Since the child was found to have been competent to testify at trial and had been made available for giving testimony at trial, the trial court did not err in admitting the videotape . . . about the victim’s accounts of the alleged abuses. OCGA § 24-3-16. See Newberry v. State, 184 Ga. App. 356 (1) (361 SE2d 499) (1987).” In the Interest of J. E. L., supra at 204 (1). See also Fields, supra.

9. Appellant’s contention that the trial court erred in denying his amended motion for new tyrial, which was premised on the arguments raised in the appeal, is without merit.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.

Decided March 9, 1990

Rehearing denied March 27, 1990

Troy R. Millikan, for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, C. David Turk III, Assistant District Attorneys, for appellee.


author: Cooper, Judge.

text:
    A89A2160.
    MADDOX et al. v. SUPERIOR RIGGING & ERECTING COMPANY et al.
    (393 SE2d 42)
   Cooper, Judge.

Appellants, Grady Maddox (“Mr. Maddox”) and Betty Maddox (“Mrs. Maddox”), brought a declaratory judgment action against appellees, the Hanover Insurance Companies (“insurer”) and its insured.

Mr. Maddox was injured in an automobile collision with a vehicle driven by an employee of the insured. An adjuster for the insurer negotiated directly with appellants in an effort to settle the personal injury claim of Mr. Maddox and Mrs. Maddox’s possible claim for loss of consortium. After negotiating for over one year, Mr. and Mrs. Maddox agreed to a settlement for a lump sum of money and an annuity, and signed a release containing the following language: “In addition to cash payment of $101,755.00, we will buy for you from SAFCO Insurance Company an Annuity Policy that will pay you $725.00 per month for life.” A few days after signing the release, appellants received a draft made payable to both of them in the amount of $101,755 and an annuity application for Mr. Maddox’s signature. Appellants, who believed that the settlement would provide an annuity covering both their lives, retained an attorney who contacted the adjuster about the “mistake.” The adjuster responded to appellants’ attorney by letter setting forth the position of the insurer that the annuity included in the settlement agreement was only for the life of Mr. Maddox and that a joint life annuity was never discussed. After receiving that letter, appellants presented the draft for payment. Subsequently, correspondence was exchanged between appellants’ attorney and the adjuster reiterating the positions taken by both parties, and several months later appellants filed this action seeking to clarify the rights and duties of the parties to the settlement agreement and to amend the annuity contract to cover both their lives. Upon considering cross motions for summary judgment, the trial court granted appellees’ motion and denied appellants’ motion.

1. The trial court held that while there could have been a legitimate dispute as to the construction of the release, appellants’ actions in negotiating the check after receiving correspondence from the adjuster setting forth a contrary position constituted an accord and satisfaction. “Accord and satisfaction occurs where the parties to an agreement, by a subsequent agreement, have satisfied the former agreement, and the latter agreement has been executed.” OCGA § 13-4-101. “Like any other contract, accord and satisfaction requires a meeting of the minds as to the subject matter embraced therein, if it is to be valid and binding. [Cits.] Where there is no agreement to settle all matters in dispute, no accord and satisfaction result. [Cits.]” Wallace v. Harrison, 166 Ga. App. 461 (2) (304 SE2d 487) (1983). It is undisputed that the draft and annuity contract were tendered to appellants in satisfaction of their claims arising out of the automobile accident with the insured’s employee; that the amount of the draft was exactly the amount of the lump sum payment agreed to; and that appellants only disputed the annuity contract as not conforming to their agreement. Appellees, as movants for summary judgment, had the burden of proving that there was a meeting of the minds and that appellants, by negotiating the draft, intended to resolve the dispute as to the annuity contract. See Wallace v. Harrison, supra. Appellees rely on cases which hold that the cashing of a check and retention of the proceeds constitute an accord and satisfaction. However, the negotiation by appellants of the draft was in satisfaction of claims arising from the collision, not the dispute which arose regarding the annuity. Appellees made no showing that there was a meeting of the minds regarding the annuity. Furthermore, “ ‘[a]s a general rule, whether there is accord and satisfaction is a question for the jury. [Cit.]’ ” Pierce v. Taylor, 190 Ga. App. 819 (2) (380 SE2d 351) (1989). Accordingly, the trial court erred in granting summary judgment to appellees.

2. Appellants contend that the trial court erred in denying their motion for summary judgment since the release was not ambiguous. The language at issue is found on page two of the release and states: “we will buy for you ... an Annuity Policy that will pay you $725.00 per month for Life.” (Emphasis supplied.) “There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity. [Cit.]” Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) (1986). “Ambiguity in a contract may be defined as duplicity, indistinctness, an uncertainty of meaning or expression. [Cit.]” Travelers Indem. Co. v. A. M. Pullen & Co., 161 Ga. App. 784 (6) (289 SE2d 792) (1982). A word is ambiguous if its indistinctiveness makes its meaning capable of more than one reasonable definition. Wahnschaff Corp. v. O. E. Clark & Co., 166 Ga. App. 242 (1) (304 SE2d 91) (1983). Appellants contend that “you” and “for Life” are meant to be plural and refer to both their lives. The trial court, while recognizing that an ambiguity existed, did not apply the rules of construction, because it found that there had been an accord and satisfaction. Because we find error with the trial court’s finding that there had been an accord and satisfaction, we remand the case to the trial court for application of the rules of construction found in OCGA § 13-2-2. If the contract is still ambiguous after the court applies the rules of construction, the court may deny appellants’ motion for summary judgment and submit the case to the jury for resolution of the ambiguity.

Decided March 15, 1990

Rehearing denied March 27, 1990

Scott Walters, Jr., for appellants.

Pierce, Goldner, Sommers & Scrudder, Stephen L. Goldner, Glenn S. Bass, for appellees.

Judgment reversed and case remanded.

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


text:
    A89A2251.
    GRIER v. PROCTOR et al.
    (393 SE2d 18)
   Cooper, Judge.

Appellant brought this action against his employer, the association of self-insurers to which his employer belongs and the servicing agent, as a result of the temporary (ten-week) cessation of the payment of his workers’ compensation benefits which, according to appellant, occurred without prior notice to him. Upon such cessation, appellant requested the administrative law judge (“ALJ”) to issue an interlocutory order requiring appellees to show cause why they should not resume payment, pay a 15 percent late penalty under OCGA § 34-9-221 (e), pay a civil penalty of $250 under OCGA § 34-9-18 (a) and pay attorney fees under OCGA § 34-9-108 (b) (1) and (2). After the order was issued, appellees submitted a letter stating that cash flow and excess reimbursement problems required the self-insurers’ fund to temporarily cease payment of benefits; that this problem had been communicated to the State Board of Workers’ Compensation and the Insurance Commissioner; that they were hopeful payments would be resumed promptly; and that they would pay the 15 percent late penalty. The final order of the ALJ, issued approximately one month after the interlocutory order, suspended action upon a determination that the appellees had again complied with their obligation to pay benefits plus payment of the 15 percent penalty. No evidentiary hearing was ever requested by the parties or conducted by the ALJ. In his brief, appellant states that the interlocutory order was requested by his counsel pursuant to Rule 100 of the State Board of Workers’ Compensation, which provides for dispute resolution without a hearing. The full board affirmed the ALJ’s order as did the superior court. We also affirm.

1. Appellant first contends that the superior court erred in affirming the award because the award failed to assess a civil penalty against appellees pursuant to OCGA § 34-9-18 (a), which states that a civil penalty between $100 and $1,000 “shall be assessed” against any employer or insurer “who willfully” fails to file any required form or report, fails to follow any order or directive of the board or violates any rule or regulation of the board. Appellant urges that since appellees did not comply with OCGA § 34-9-221 (c), which requires notice to the board and the employee upon any suspension of payment in accordance with forms prescribed by the board, or with board regulations promulgated pursuant thereto, that the civil penalty must be assessed against appellees.

The language of § 34-9-18 (a) is mandatory if a finding of wilfulness is made by the factfinder, either explicitly or implicitly (State v. Graul, 181 Ga. App. 573 (3) (353 SE2d 70) (1987)), and if that finding is supported by the evidence. Id. In the case sub judice, no evidentiary hearing from which a finding of wilfulness could be made, was held. Under Rule 100 of the State Board of Workers’ Compensation, the parties invoking the rule waive any right to a full evidentiary hearing and the resolution reached has the same effect as if such a hearing was conducted. Thus, there is no evidence in the record authorizing a finding of wilfulness or the imposition of a civil penalty. In fact, the letter submitted by the appellees indicates the contrary. We will not vitiate the method of dispute resolution chosen by appellant, provided for by the board and implemented by the ALJ, by assuming evidence that was not in fact presented to the ALJ or to the board. Since there was no error of fact or of law made by the ALJ or the board, the superior court correctly affirmed the ruling. See Carroll v. Dan River Mills, 169 Ga. App. 558 (1) (313 SE2d 741) (1984).

2. In his second enumeration, appellant asserts error in the superior court’s affirmance of the board’s ruling that attorney fees under OCGA § 34-9-108 (b) (1) or (2) should not be assessed against appellees. Under either of these statutes, attorney fees may, in the discretion of the ALJ or the board (Copelan v. Burrell, 174 Ga. App. 63 (2) (329 SE2d 174) (1985)), be assessed provided that a finding is made that appellees acted “without reasonable grounds.” Sadie G. Mays &c. Home v. Freeman, 163 Ga. App. 557 (4) (295 SE2d 340) (1982). Although the orders of the ALJ and the board are silent as to whether reasonable grounds existed, the letter submitted by appellees is ample evidence to support the conclusion that appellees had reasonable grounds for their actions, and the superior court’s affirmance on that issue was not error. Id.

Decided March 13, 1990

Rehearing denied March 27, 1990

Denise Hemmann, for appellant.

Nancy R. Foster, H. Frasier Corbin, for appellees.

3. Appellant, in his third enumeration, contends that error occurred because the board ruled differently in another factually similar case involving appellees and a different claimant, wherein penalties and attorney fees were assessed. The case referred to by appellant was not offered for consideration by the ALJ or the board and was not in the record to the superior court or this court. Consequently, we cannot consider the argument based upon that case. See Hartford Accident &c. Co. v. Dutton, 116 Ga. App. 535 (158 SE2d 272) (1967); Turner v. American Mut. &c. Ins. Co., 109 Ga. App. 721 (137 SE2d 385) (1964).

Judgment affirmed.

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

On Motion for Rehearing.

In our opinion, we hold that on appellate review, we cannot reverse the ruling of the factfinder by making a determination of “wilfulness” when there is no evidence in the record to support such a finding. Any such evidence and arguments in support thereof should have been presented to the factfinder for initial determination so that such evidence could have been reviewed on appeal. Further, the award of attorney fees is discretionary and evidence supporting the ALJ’s decision was in the record to review.

Rehearing denied.


text:
    A89A2270.
    ROGERS v. DEPARTMENT OF HUMAN RESOURCES.
    (392 SE2d 713)
   Cooper, Judge.

The Georgia Department of Human Resources (“DHR”) filed an action against appellant to establish paternity, recover public assistance funds paid for the benefit of a minor child, and for an order establishing future support payments. Appellant sought to obtain, via discovery, certain DHR public assistance documents which the trial court ruled were confidential and nondiscoverable. The order appealed from denied appellant’s motion to compel and granted the DHR’s motion for protective order.

Decided February 19, 1990

Rehearing denied March 27, 1990

T. Dorsey Yawn, for appellant.

Joseph H. Briley, District Attorney, Josephine B. Jones, Assistant District Attorney, Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Stephanie B. Manis, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellee.

Although this court granted appellant’s application for discretionary appeal, it appears that the appeal must be dismissed as it is premature in the absence of a certificate of immediate review. Because the order appealed from is clearly not a final judgment, the interlocutory appeal procedure set forth in OCGA § 5-6-34 (b) is mandated. Neal v. State, 182 Ga. App. 37 (354 SE2d 664) (1987).

Appellant’s reliance on OCGA § 5-6-35 (b) is misplaced. Clearly, if a final order had been entered, it would be subject to discretionary appeal procedures under OCGA § 5-6-35. However, this provision does not relieve appellant of the requirement of a certificate from the trial judge. Subsection (b) sets out what an application must contain, in cases appealable under subsection (a) where interlocutory review is sought, in addition to a certificate. If we were to conclude otherwise, it would deprive the trial court of the broad discretion it has in determining what preliminary matters are subject to review prior to entry of a final judgment. Lee v. Smith, 119 Ga. App. 808 (168 SE2d 880) (1969).

Appeal dismissed.

Deen, P. J., and Birdsong, J., concur.


author: Sognier, Judge.

text:
    A90A0105.
    SINGLETON v. THE STATE.
    (393 SE2d 6)
   Sognier, Judge.

Joseph H. Singleton was convicted of kidnapping, rape, robbery, and giving a false name to an officer, and he appeals.

The evidence adduced at trial showed that shortly after midnight on October 31, 1987, appellant’s elderly next door neighbor in Way-cross was outside checking her garden hose when a man walked up behind her, grabbed her around the neck, and threatened to kill her if she screamed. Although unable to see her assailant, the victim heard his voice, and was able to ascertain that he was a young Caucasian male. While removing her clothing, the attacker located money in the victim’s underclothing and grabbed it. He then dragged the victim across the ground to another spot, raped her, and threatened to attack her retarded daughter. After the attacker left, the victim crawled to her house and telephoned her son and another daughter, who called the police. Physical examination of the victim at a hospital revealed bruises and contusions around her eye and on her arms and legs, as well as a broken arm. An abrasion on the vaginal wall and the presence of sperm were consistent with forcible intercourse.

Several days later, the victim was again in her yard when she heard a voice from next door she recognized as that of her attacker. She saw two men — one with long, dark hair and a beard and another with blond hair and no beard — and determined that the voice she recognized belonged to the bearded man with the dark hair. She informed her daughter that she had recognized the voice, and her daughter contacted the police.

After ascertaining that two of the occupants of the house next door to the victim’s, Rex Dochterman and “Leroy” Singleton, worked at a nursery, Detectives Michael Braddock and Julius Fiveash of the Waycross Police Department went to the nursery, where they were given permission to speak with Dochterman. Dochterman willingly accompanied them to the police station, where he was advised of his rights and questioned. Dochterman, who had blond hair and no beard, also voluntarily took a polygraph examination at the request of the detectives, and passed. Dochterman informed them that his roommate, “Leroy” Singleton, had long, dark hair and a beard.

The detectives returned to the nursery and asked to speak with “Leroy” Singleton, later identified as appellant. The manager agreed, and appellant accompanied them back to the police station. Upon being advised of his constitutional rights and signing a waiver of counsel, appellant first stated that on the night in question he had argued with his girl friend and gotten drunk, and he could remember nothing from midnight until 7:00 a.m. After agreeing to take and failing a polygraph examination, appellant was again advised of his rights and again executed a waiver of counsel form. He then gave a tape recorded statement admitting that after arguing with his girl friend, he began drinking. Realizing that he had no money but wanting more to drink, he decided to rob his next door neighbor, hid in the darkness, and attacked her from behind. He admitted taking her clothes off and having sex with her, taking her money, and buying liquor with it. Appellant also admitted that “Leroy” Singleton was his father’s name, and not his. The victim positively identified appellant at trial as her attacker. Appellant did not testify at trial.

1. In two enumerations, appellant contends the trial court erred by denying the motion to suppress his statement because he was “seized” unlawfully from his place of employment in a warrantless arrest and taken to the police station, thereby violating his Fourth Amendment rights. We do not agree. Detectives Braddock and Fiveash both testified that appellant willingly agreed to accompany them to the police station, and was not under arrest when he did so. Appellant was not handcuffed, was advised he was free to go at any time, and rode to the police station in an unmarked car without a “cage.” Both detectives testified that only after appellant had given his statement admitting he had raped and robbed the victim was he placed under arrest. Based on this evidence, we agree with the trial court’s finding that no Fourth Amendment violation occurred when the detectives entered the nursery or when appellant accompanied the officers to the police station, which “appears to have been voluntary on [appellant’s] part.”

Moreover, even if an arrest took place when appellant went to the police station, contrary to appellant’s argument probable cause existed for such an arrest, and thus a warrant was not required. “If probable cause to arrest exists at the time of detention and the person detained is outside of his home, the law does not require a warrant. [Cit.] The decision on whether probable cause exists rests upon a test of reasonableness and probabilities. [Cit.] ‘Probable cause existed if at the time of the arrest the officers had knowledge and reasonably trustworthy information about facts and circumstances sufficient to warrant a prudent man in believing that [appellant] had committed an offense.’ [Cit.]” State v. Grant, 257 Ga. 123, 125 (1) (355 SE2d 646) (1987). In the case at bar, the victim had identified her assailant as a young, Caucasian male, had positively identified the voice of her attacker, and knew he had long, dark hair and a beard and had been next door. This constituted probable cause for appellant’s arrest.

2. Appellant also asserts the trial court erred by admitting his statement into evidence because it was involuntary and was made without a knowing and intelligent waiver of his rights. At a hearing held pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), appellant testified that he is barely able to read and thus could not have understood the rights that he admitted were read to him, or the waiver of counsel form. In his taped statement, appellant specifically acknowledged signing the two waiver of counsel forms and understanding his rights. Both detectives testified that appellant seemed able to communicate with them, appeared to understand his rights, and did not appear to be under the influence of aleohoi or drugs; and that no threats or promises were made to appellant in hopes of inducing the statement.

Decided March 7, 1990

Rehearing denied March 27, 1990.

Clyde W. Royals, for appellant.

Harry D. Dixon, Jr., District Attorney, Richard E. Currie, Assis tant District Attorney, for appellee.

“ ‘Factual and credibility determinations as to voluntariness of a confession, including factual and credibility determinations as to issues of rights waiver, are normally made by the trial judge and must be accepted by appellate courts unless such determinations are clearly erroneous. (Cits.)’ [Cit.]” Peabody v. State, 190 Ga. App. 304, 305 (1) (378 SE2d 712) (1989). The trial judge had the opportunity to observe appellant and to determine from his demeanor whether he possessed sufficient intelligence and capacity to make a voluntary waiver of his rights. The trial court found that appellant “did clearly understand his rights” and “knowingly and voluntarily surrendered those rights,” and that “the statement made by him was freely and voluntarily made” and would be admitted. We find no error in this determination. Johnson v. State, 188 Ga. App. 499, 500 (1) (373 SE2d 284) (1988).

3. Appellant enumerates the general grounds, specifically claiming that the trial court erred by denying his motion for a directed verdict of acquittal because there was insufficient corroboration for his confession as required by OCGA § 24-3-53. A conviction may be had on a confession although corroborated only by proof of the corpus delicti. Nation v. State, 180 Ga. App. 460, 461 (1) (349 SE2d 479) (1986). “The amount of evidence necessary to corroborate a confession is for the jury to decide, as it may consider the confession along with other facts and circumstances independent and separate from it in determining whether or not the corpus delicti has been established to their satisfaction. [Cit.]” Id. In the case sub judice, the corpus delicti was established by direct evidence, including the victim’s own testimony and scientific and medical evidence. In addition, the victim also identified appellant as her attacker. We find the evidence more than sufficient to corroborate appellant’s statement, as well as to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. Appellant’s remaining three enumerations of error are unsupported by argument or citations of authority, and accordingly are deemed abandoned pursuant to Rule 15 (c) (2) of this court.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


author: Beasley, Judge. Carley, Chief Judge,

text:
    A89A1701.
    GUTHRIE et ux. v. BANK SOUTH, DOUGLAS.
    (393 SE2d 60)
   Beasley, Judge.

Mr. and Mrs. Guthrie appeal the confirmation of sale by power of real property owned by them.

On June 2, 1986, Mr. Guthrie executed a Deed to Secure Debt to The Exchange Bank, securing a debt of $96,184.35. On September 28, 1987, Mr. and Mrs. Guthrie both signed a “Promissory Note, Disclosure Statement and Security Agreement” with Bank South, Douglas.

The body of that document reflects as collateral “Deed to Secure Debt to Bank South, Douglas dated 6/2/86” and describing the subject property.

The property, which included a building which was used as the Rib Shack restaurant, was purchased in 1980 for $125,000. It was purchased by Bank South for $75,000 at the sale conducted pursuant to OCGA § 44-14-161 in December 1988.

1. The hearing was begun in February 1989, with the Bank relying solely on the testimony of one of its loan officers on the subject of value. After hearing this evidence, the trial court sua sponte continued the hearing to the beginning of April for the bank to get an independent appraisal, which the court wanted for its consideration. The bank had urged that the property significantly lost value since its purchase, due to deterioration. No objection was made to the continuance until the testimony of the appraiser was offered at the April hearing.

The grant or denial of a continuance, even on the court’s own motion, is a matter of discretion for the trial court. Patterson v. Lanham, 182 Ga. App. 343, 344 (1) (355 SE2d 738) (1987); MARTA v. Partridge, 187 Ga. App. 637, 638 (3) (371 SE2d 185) (1988) (physical precedent); cf. Village Creations v. Crawfordville Enterprises, 232 Ga. 131, 132 (206 SE2d 3) (1974); Simmerson v. Blanks, 183 Ga. App. 863, 864 (360 SE2d 422) (1987). It is too late to object to a continuance after it has been accomplished and the purpose for it has been fulfilled. See Abernethy v. Cates, 182 Ga. App. 456, 460 (8) (356 SE2d 62) (1987).

The court did not abuse its discretion in providing the relatively short delay so as to be better informed about the value of the property when it issued its order. It was not satisfied with the testimony concerning foreclosure date value which was offered by the bank, and the statute states that “[t]he court shall require evidence to show the true market value. ...” Appellants claimed no harm at the time they complained of the continuance. While the opposing party’s loss of time and the expense of attending two hearings are no small factors to be taken into account when contemplating a continuance, the court has a responsibility to achieve a just result on the merits when possible. The court was aware that there was a significant disparity between several earlier appraisals and the purchase price sought to be confirmed, and the court did not exceed its authority in continuing the hearing for another appraisal. Patterson, supra. This is true even though the court did not condition the continuance on the Bank’s payment of the Guthries’ costs occasioned by it.

2. Enumerations 4 & 5 deal with the alleged failure of Bank South to prove it was entitled to foreclose pursuant to the Deed to Secure Debt issued by Mr. Guthrie to The Exchange Bank.

Appellants urged that Bank South had failed to prove that the Deed had been assigned to it by The Exchange Bank or that there was any connection between the two.

The Deed contained an “open end” or “dragnet” clause which provided that the deed would also secure any future advances, additional loans or renewals “made or granted by the party of the second part [The Exchange Bank] to or for the party of the first part.” Such clauses are limited to debts arising ex contractu between the original parties to the security instrument. OCGA § 44-14-1; Willis v. Rabun County Bank, 249 Ga. 493 (291 SE2d 715) (1982). A merged bank is considered an original party to the security instruments of its constituent banks. They do not lose their existences in the merger, merely their identities. OCGA § 44-14-1 (a); Georgia R. Bank &c. Co. v. McCullough, 241 Ga. 456 (246 SE2d 313) (1978). While it is stated in Bank South’s brief that it was merged with The Exchange Bank, this does not appear in the record and cannot be considered. Johnson v. Shield Ins. Co., 189 Ga. App. 333, 334 (375 SE2d 510) (1988).

Appellants, however, failed to comply with OCGA § 9-11-9 (a), which requires specific negative averment to raise the issue of the capacity or authority of a party to bring an action. The only allusion to improper capacity or authority was made during closing arguments at the conclusion of the second hearing. Even if this were a proper issue for a confirmation proceeding, this was untimely and the issue was waived. OCGA § 9-11-81; Adams v. Cato, 175 Ga. App. 28 (332 SE2d 355) (1985); Patterson v. Duron Paints of Ga., 144 Ga. App. 123 (1) (240 SE2d 603) (1977).

3. Appellants also contend that the foreclosure was improper under OCGA § 48-6-77 because additional intangible taxes were not paid on the September 1987 note to Bank South. That section provides that failure to pay the tax “shall constitute a bar to . . . the exercise of any power of sale. ...”

The note to Bank South was not for the advancing of additional funds but rather for the refinancing of the original note, secured by the original deed to secure debt. Assuming, without deciding, that the tax was due on a refinancing pursuant to the original security instrument, the issue is not one which can be resolved in a confirmation proceeding. The power of sale referred to in OCGA § 48-6-77 had already been exercised.

“Appellants misperceive the purpose of a confirmation proceeding. ‘The primary issue at a hearing for confirmation of a foreclosure sale under power, which is a condition precedent to an action for deficiency judgment,' is a judicial ascertainment that the property brought at least its true market value on the foreclosure sale. (Cit.) The court must also pass on “the legality of the notice, advertisement and regularity of the sale.” ’ Shantha v. West Ga. Nat. Bank, 145 Ga. App. 712 (244 SE2d 643). ‘(T)he court’s inquiry should go only to the value of the real estate on the date of sale, in the course of the examination to determine which the fairness of the technical procedures used may be examined, but only for the purpose of making sure that the sale was not chilled and the price was in fact market value.’ Walker v. Northeast Production Credit Assn., 148 Ga. App. 121, 122 (251 SE2d 92). Alleged defenses to the original debt such as the ‘novation’ asserted here ‘are not relevant to the confirmation proceeding, even assuming any of the appellants had a meritorious defense to the prosecution of a deficiency judgment against them. . . . (T)he (confirmation) statute does not undertake to decide controversies between parties as to the amount of the debt, side agreements, or matters in defense of default or in denial of indebtedness, or which might have been the basis of an injunction preventing the foreclosure sale.’ Harris & Tilley, Inc. v. First Nat. Bank, 157 Ga. App. 88, 91 (276 SE2d 137); accord Jones v. Hamilton Mtg. Corp., 140 Ga. App. 490, 491 (231 SE2d 491); Scroggins v. Harper, [138 Ga. App. 783, 785 (227 SE2d 513) (1976)].” Shingler v. Coastal Plain &c. Assn., 180 Ga. App. 539, 541 (2 b) (349 SE2d 785) (1986). (Indention omitted.)

4. The first two enumerations are that Bank South failed to prove the property was sold for its true market value and that the testimony of the bank’s appraiser should not have been allowed because it was based on speculation and not supported by factual data.

The only objection made to the testimony of the bank’s appraiser at the hearing was a motion to strike his testimony after he testified both on direct and cross and the bank had rested its case. The objection was that an insufficient foundation had been laid to show that the comparable sales used for the opinion were in fact comparable. Additional grounds will not be considered. Long v. Marion, 182 Ga. App. 361, 362 (1) (355 SE2d 711) (1987), aff'd 257 Ga. 431, 432 (1) (360 SE2d 255) (1987).

The purpose of a motion to strike is not to excise testimony allowed in without contemporaneous objection. The stated purpose of OCGA § 9-11-12 (f) is only to strike from pleadings any insufficient defense, redundant, immaterial, impertinent, or scandalous matter.

“ ‘ “In this state it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which [the party] might have had. [Cits.]” [Cit.]’ [Cit.]” Hall County Mem. Park v. Baker, 145 Ga. App. 296, 298 (4) (243 SE2d 689) (1978).

As to the alleged failure of proof that the property brought at least its true market value, “ ‘ “[i]n confirmation proceedings, the (superior court) sits as a trier of fact, and (its) findings and conclusions have the effect of a jury verdict. (It) hears the evidence and (its) findings based upon conflicting evidence should not be disturbed by a reviewing court if there is any evidence to support them. (Cits.) What value is, or may have been, is a question of fact to be resolved as others are. In so doing, the (superior) court is the judge of the credibility of the witnesses and of the weight to be given the evidence. (Cits.)” (Cits.)’ Alexander v. Weens, 157 Ga. App. 507, 508 (3) (277 SE2d 793) (1981). ‘Although (appellants present) a serious challenge to the means by which the creditor’s expert arrived at his opinion as to value, the expert provided the court with the basis for his opinions. (As) it appears that his opinion (was) not based on sheer speculation, an appellate court cannot second guess any methodology utilized to reach the opinion. [Cits.]’ Echols v. Edwards, 185 Ga. App. 688, 690 (2) (365 SE2d 844) (1988). ‘The superior court. . . had sufficient data in evidence upon which (it) could apply (its) own knowledge and ideas so as to derive (its) own opinion as to the market value of the [property] at the time of the sale.’ BPI Constr. Co. v. Collective Fed. Savings &c. Assn., 186 Ga. App. 324, 325 (367 SE2d 269) (1988).” Armstrong v. Cal. Fed. &c. Assn., 192 Ga. App. 508, 509 (2) (385 SE2d 113) (1989).

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur specially.

Carley, Chief Judge,

concurring specially.

I agree with the result reached by the majority in this case and I concur fully in all that is said in Divisions 1, 3 and 4 of the majority opinion. However, with regard to Division 2, I cannot join the majority’s reliance upon OCGA § 9-11-9 (a) because I do not believe that the provisions of the Civil Practice Act are fully applicable to confirmation proceedings. “The confirmation required by [OCGA § 44-14-161] is not a civil case. ... ‘It is not an action in personam, because no personal judgment is recovered. Strictly speaking, it is not an action in rem, because it does not adjudicate . . . title. . . .’ [Cit.]” Wall v. Fed. Land Bank of Columbia, 240 Ga. 236, 237 (240 SE2d 76) (1977).

Decided March 16, 1990

Rehearing denied March 28, 1990

Hudson & Solomon, James D. Hudson, for appellants.

C. Jerome Adams, for appellee.

In my opinion, appellants’ enumeration based upon the contention that Bank South failed to prove that the original deed to secure debt had been assigned to it by the Exchange Bank is simply “not relevant to the confirmation proceeding, even assuming any of the appellants had a meritorious defense to the prosecution of a deficiency judgment against them. The confirmation proceeding is a statutory proceeding which by law determines only that the sale was properly advertised and brought the fair market value of the land. . . . The duty of the trial court is to test the fairness of the technical procedure of the actual sale and to insure that it brought at least the true market value; the statute does not undertake to decide controversies . . . which might have been the basis of an injunction preventing the foreclosure sale. [Cits.]” Harris & Tilley v. First Nat. Bank, 157 Ga. App. 88, 91 (276 SE2d 137) (1981). OCGA § 44-14-161 places the responsibility for commencement of the confirmation proceeding upon the “person instituting the foreclosure proceedings.” Appellee here was the entity “instituting the foreclosure proceedings” and it is uncontroverted that the advertisement and sale were regular and technically correct. Accordingly, appellants’ contention concerning the lack of proof of assignment of the security deed to appellee is not something that can be considered within the confines of this confirmation proceeding.

I am authorized to state that Presiding Judge McMurray joins in this special concurrence.


text:
    A89A1722.
    INCOME PROPERTIES et al. v. GLASS et al.
    (392 SE2d 728)
   Cooper, Judge.

Appellants, several real estate agents and brokers, sued appellees, all of the sellers, or agents of sellers, and the purchaser of several parcels of contiguous real estate, for commissions they claim were earned on the sale. Appellants seek actual and punitive damages, under theories of breach of contract, quantum meruit, conversion, and conspiracy. On appeal, appellants allege error in the trial court’s grant of summary judgment to appellees and the denial of their motion for partial summary judgment.

The evidence shows that the purchaser, Sherwin Glass (“Glass”) retained a broker, David Rice (“Rice”), to help him locate and purchase a piece of property. Rice contacted another broker, Ross Lucas (“Lucas”), who then contacted Bob Smith (“Smith”), also a broker. Smith contacted Hugh Hunter (“Hunter”), a real estate agent, who informed him about a parcel of property of approximately 700 acres owned by John Taulman (“Taulman”) and other appellees. Hunter had sold property for Taulman before, and Taulman had previously told Hunter that he was interested in selling the 700-acre parcel of property. Glass inspected the property with Rice, Lucas and Hunter and, after inspecting the property a second time, contacted Hunter to get his assistance in purchasing approximately 200 acres of the Taulman property. Although Hunter and Glass met on several occasions, they never discussed a price to be offered for the property or any other terms and conditions of the sale. Subsequently, Glass told Hunter he wanted to negotiate directly with Taulman, to which Hunter agreed. Several months later, Glass closed a transaction, without any brokers being present, purchasing 447 acres of the Taulman property and in December 1983, Glass purchased approximately 300 more acres of the Taulman property. Neither Hunter nor any of the brokers received a commission, although Rice received a “consulting fee” from Glass.

1. Appellants, contending that a question of fact existed as to whether they were the “procuring cause” of the sale of the property, enumerate as error the trial court’s grant of summary judgment to appellees. “Where a property owner has authorized a broker to procure a purchaser for his property but has not given him an ‘exclusive agency’ to do so, the owner remains free to sell the property himself or to sell it through another broker. [Cits.]” Kraft Land Svcs. v. Hart Co., 165 Ga. App. 358 (1) (300 SE2d 186) (1983). It is undisputed that Taulman did not give Hunter an exclusive listing, but merely told Hunter he was interested in selling the property. “Finding the prospect and attempting to make the sale are not sufficient, in law, to entitle an agent to a commission; to earn the commission, he must be the procuring cause of the sale. [Cit.]” Foshee v. Harris, 170 Ga. App. 394, 396 (317 SE2d 548) (1984). “In determining whether a broker was the procuring cause of the sale where there is no exclusive contract to sell, it must be established that (i) the negotiations were still pending between the broker and the prospective purchaser; and (ii) the owner was aware that the negotiations were still pending at the time he consummated the sale. [Cits.]” Hendrix v. First Nat. Bank of Columbus, 173 Ga. App. 513, 515 (326 SE2d 489) (1985). “Although the question whether or not a realtor was a procuring cause is generally one for the jury, when faced with a motion for summary judgment supported by sworn testimony that counters the claim, the burden is on the realtor to make a threshold showing to survive the motion. [Cit.]” Doyal & Assoc. v. Wilma Southeast, 174 Ga. App. 851 (2) (332 SE2d 24) (1985). Inasmuch as appellants have failed to show that either of them received an exclusive listing; that any offer was made to the seller through either broker or real estate agent; or that any negotiations ever took place between them and the purchaser, we find no evidence that appellants were the procuring cause of the sale.

Decided March 7, 1990

Rehearing denied March 28, 1990

Glenville Haldi, for appellants.

Marian Exall, W. Stell Huie, Higgins & Dubner, Michael W. Higgins, for appellees.

Furthermore, we find that no commissions were earned by appellants. Taulman informed Hunter that he would like to sell all of the 700-acre parcel of property, but did not give him a written listing. Although Glass asked Hunter to assist him in purchasing 200 acres of Taulman property, he did not negotiate price or any other terms and conditions of the purchase, and did not make an offer on the property. During a meeting between Taulman, Glass and Hunter, Taulman maintained that he would not sell less than the whole parcel of property, and Glass maintained that he only wanted to purchase part of the property. Since neither Hunter nor any of the other brokers involved ever brought together a purchaser who was ready, able and willing to buy on the terms stipulated to by the seller, no commissions were earned. OCGA § 10-6-32.

Because the evidence demonstrates that appellants were not the procuring cause of the sale, summary judgment in favor of the appellees on the quantum meruit, conversion, conspiracy, and RICO counts was proper. Hendrix v. First Nat. Bank of Columbus, supra; Booth v. Watson, 153 Ga. App. 672 (3) (266 SE2d 326) (1980).

2. Appellants also enumerate as error the denial of their motion for partial summary judgment. Since appellants’ motion was based on appellees’ liability for the real estate brokerage commissions and there was no showing of any such liability, the trial court properly denied appellants’ motion.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


author: Carley, Chief Judge.

text:
    A89A1744.
    LITTLE v. THE STATE.
    (392 SE2d 896)
    Decided March 15, 1990
    Rehearing dismissed March 28, 1990.

      Albert C. Palmour, Jr., for appellant.
   Carley, Chief Judge.

Appellant was tried by a jury and found guilty of possession of a firearm by a convicted felon, in violation of OCGA § 16-11-131 (b). The trial court entered judgment of conviction and sentence on the jury’s verdict, and appellant appeals.

Appellant’s sole defense was justification. See OCGA § 16-3-20. His wife testified that she owned the weapon and, unknown to appellant, had placed it in the glove compartment of his truck because she was going to get it repaired. Appellant stated that when his children opened the “dash,” he saw the weapon and put it in his pocket because he feared they would play with it and be injured. He was then stopped for a license check, and the weapon was discovered.

Appellant requested the following charge: “[Wjhen a felon is in imminent peril of great bodily harm or reasonably believes himself or others to be in such danger, and with preconceived design on his part a firearm is made available to him, his temporary possession of that weapon for a period no longer than that in which the necessity or apparent necessity to use it continues does not violate the statutory prohibition against possession of a concealed firearm by a felon.” This request, based on People v. King, 582 P2d 1000 (22 Cal. 3d 12, 148 Cal. Rptr. 409) (1978), was refused by the court. See also Annot., 39 ALR4th 967 (1985). This refusal is enumerated as error.

Justification is a defense to possession of a firearm by a convicted felon. “OCGA § 16-3-20 plainly states that justification is a defense to the prosecution for any crime.” Smith v. State, 257 Ga. 468, 469 (3) (360 SE2d 591) (1987). See Pickett v. State, 123 Ga. App. 1 (1) (179 SE2d 303) (1970); Harris v. State, 15 Ga. App. 315 (85 SE 813) (1914).

“While the request to charge may have been . . . verbose and imperfect in form, which would not require the written request to be given verbatim, yet the accused was entitled to a charge as to the only defense which he claimed, and when the court refused to [so] charge . . . , and charged merely the language of [OCGA § 16-11-131], this was tantamount to a direction of a verdict, requiring a reversal on this ground alone.” Pickett v. State, supra at 2 (1).

Judgment reversed.

Beasley, J., concurs. McMurray, P. J., concurs in the judgment only.

Ralph Van Pelt, Jr., District Attorney, Susan Sarratt, John L. O’Dell, Assistant District Attorneys, for appellee.