author: Pope, Presiding Judge.

text:
    A97A0996.
    BOVELAND v. YOUNG WOMEN’S CHRISTIAN ASSOCIATION OF GREATER ATLANTA, INC.
    (489 SE2d 35)
   Pope, Presiding Judge.

On November 10, 1994, the trial court issued an order evicting defendant Boveland from a building owned by plaintiff Young Women’s Christian Association of Greater Atlanta, Inc. On November 22, 1994, defendant still had not vacated the premises, and following a hearing, the trial court issued another order holding defendant in contempt. Defendant timely filed notices of appeal from both orders, requesting in each that “the entire record, including all transcripts” be transmitted to the appellate court. In September 1996, these appeals still had not been docketed because one of the transcripts was missing, and the trial court granted plaintiff’s motion to dismiss the appeals. The trial court also concluded that Boveland’s defense to the ejectment based on adverse possession was frivolous and awarded plaintiff $14,965 in attorney fees under OCGA § 9-15-14.

1. The trial court did not abuse its discretion in dismissing defendant’s appeals. A trial court may dismiss an appeal if there has been an unreasonable delay in filing a transcript, and the delay was inexcusable and caused by the appealing party. OCGA § 5-6-48 (c). Although not all delays are unreasonable, see Galletta v. Hillcrest Abbey West, 185 Ga. App. 20 (1) (363 SE2d 265) (1987), a delay of almost two years clearly is, particularly since the pending appeals have clouded plaintiff’s title and prevented it from being able to sell the property in question — which plaintiff has wanted to do since before defendant moved onto the property without permission in October 1993. Nor did the court err in concluding the delay was inexcusable and caused by defendant. As defendant designated “all transcripts” for inclusion in the record, it was his responsibility to ensure all transcripts were prepared and filed. See Burton v. Hamilton, 204 Ga. App. 18, 19 (418 SE2d 398) (1992). Yet the court reporter testified by affidavit that as of December 20, 1995, defendant still had not instructed her to prepare the transcript of the contempt hearing or given her a deposit.

Defendant argues that even if the appeal from the contempt order was properly dismissed, the appeal of the ejectment order was not; since the transcript of the contempt hearing was not necessary for that appeal, he reasons, the clerk’s delay in transmitting the record for that appeal was not his fault. But in defendant’s notice of appeal he designated that “all transcripts” should be included in the record for both appeals, and it is not up to the clerk to go beyond the designation and determine which transcripts are necessary. Cf. Teston v. Mills, 203 Ga. App. 20 (416 SE2d 133) (1992) (trial court properly found delay was caused by the appellant where he designated the transcript to be included as part of the record even though there was no transcript). And though defendant’s counsel stated in his place that he told the clerk to go ahead and transmit the record for the appeal of the ejectment order without the missing transcript, he never formally amended his designation of record or notified plaintiff, nor did he follow up on the matter as the months passed and the appeal still remained undocketed. Accordingly, dismissal of both appeals was not an abuse of discretion. See Crocker v. Stevens, 210 Ga. App. 231, 240 (10) (435 SE2d 690) (1993); Burton, 204 Ga. App. at 19-20.

2. Defendant also challenges the propriety of the award of attorney fees against him and his attorney. This issue is not properly before us, however, since an award of attorney fees under OCGA § 9-15-14 is subject to discretionary appeal procedures. See OCGA § 5-6-35 (a) (10). An exception to this rule is made if the attorney fee award is appealed as part of an appeal from the underlying judgment. This is necessary where the basis for the award (i.e., the argument which the lower court said was frivolous) is itself the subject of review, lest the appellate court reverse the lower court’s decision on the “frivolous” argument on the merits, yet leave the award of attorney fees standing. See Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 526 (4) (a) (360 SE2d 566) (1987). But this exception does not apply here, because this appeal is from the dismissal of the prior appeal rather than from the underlying claim, and the basis for the award of attorney fees — the frivolous nature of Boveland’s adverse possession defense under the circumstances of this case — is not in issue.

Decided June 18, 1997

Reconsideration denied July 11, 1997

Michael B. King, for appellant.

Sutherland, Asbill & Brennan, John A. Chandler, Ann G. Fort, for appellee.

3. Defendant’s remaining enumerations of error are without merit.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

       The transcript still had not been filed at the time of the hearing on the motion to dismiss in September 1996.


source: Caselaw Access Project

license: Public Domain

text:
    A97A0136.
    GRANT v. THE STATE.
    (488 SE2d 763)
   Pope, Presiding Judge.

A jury convicted defendant Homer Lee Grant of theft by taking a motor vehicle, possession of cocaine, obstruction of a law enforcement officer and possession and use of drug-related objects. On appeal, defendant contends the trial court erred in failing to direct a verdict on the theft by taking charge because the evidence presented by the State was insufficient to support a conviction on that charge as alleged in the indictment. Upon review, we agree with defendant and therefore reverse his theft by taking conviction.

During the course of defendant’s trial, the State presented evidence showing that shortly after midnight on December 22, 1991, Glenn A. Temple drove defendant to defendant’s uncle’s house in a Ford Ranger pickup truck that Temple had stolen from the Brent Walker Ford dealership in Tattnall County. Defendant asked his uncle if he wanted to buy the truck stating that the “guy” wanted either $25 or $50. When defendant’s uncle said he was not interested, defendant informed him that if he bought the truck he could turn it in for a reward. Defendant’s uncle again stated that he was not interested in buying the truck, and thereafter, defendant went back to the truck, got in the passenger seat and rode off toward Glennville, Georgia with Temple driving.

Defendant’s uncle reported the incident to the Glennville Police Department telling them that he believed the truck was stolen and that it was heading toward the city. In response to the call, Officer Kicklighter was dispatched and waited for the truck at the city limits. When the truck approached, Kicklighter attempted to pull it over but was forced to give chase when Temple refused to stop. During the pursuit, the truck entered a trailer park where it eventually did stop. At that time, Kicklighter ordered Temple and defendant out of the truck. When defendant exited the truck, he identified himself to Kicklighter and then fled the scene. Kicklighter yelled for defendant to stop but did not attempt pursuit because he was in the process of arresting Temple. Defendant, however, later was arrested, and police recovered a crack pipe containing cocaine residue from the stolen truck.

In a voluntary statement to police, defendant admitted that the crack pipe found in the truck was his and that he and Temple had smoked crack at some point earlier. Defendant also claimed that he did not know that the truck was stolen when he first started riding around with Temple, but that he had later figured it out. He further claimed that he had told his uncle that for $15 he could have both the truck and its driver.

Although he did not testify at trial, defendant did call two witnesses on his behalf. The first of these witnesses testified without contradiction that during the late afternoon to early evening hours of December 21, 1991, Temple was seen in the truck by himself driving in an erratic manner. Temple stopped the truck in front of a crowd of people, including defendant, and at that time, the witness observed that the truck’s driver-side window had been broken out and that a hammer was sitting on the truck’s floorboard along with the shattered glass from the window and a key box that had once been attached to the window. When asked if the truck was stolen, Temple drove away from the crowd alone. Both this witness and the other witness also testified that later that same evening, they saw Temple again riding around in the truck by himself looking for someone to ride with him.

Defendant contends that his motion for a directed verdict should have been granted because the above evidence does not demonstrate beyond a reasonable doubt that he ever took any vehicle from Brent Walker Ford as alleged in the indictment against him. The State argues that defendant was not entitled to a directed verdict because the evidence was sufficient to convict defendant as a party to Temple’s theft of the truck under OCGA §§ 16-2-20 and 16-2-21 as an aider and abettor or conspirator. We cannot agree.

“Although the terminology of parties to a crime as principals in the first and second degree has been abolished, the concept, as related to criminal responsibility, remains constant. ‘Aid or abet’ as used in OCGA § 16-2-20 (b) (3) should be given the same meaning as in former Code § 26-501 defining a principal in the second degree as one ‘who is present, aiding and abetting the act to be done.’ In essence, to be guilty as a party to a crime as an aider or abettor pursuant to OCGA § 16-2-20 (b) (3), a defendant must be an accessory before the fact.” (Citation and punctuation omitted.) Purvis v. State, 208 Ga. App. 653, 654-655 (433 SE2d 58) (1993). Likewise, to be guilty as a conspirator to a crime pursuant to OCGA § 16-2-20, one also must be an accessory before the fact. Id. at 655.

Decided July 11, 1997.

Cowart & McCullough, Hugh J. McCullough, for appellant.

In the case at bar, there was no direct evidence that defendant was an accessory before the fact to Temple’s theft by taking the truck. And while there may be some circumstantial evidence to that effect, such circumstantial evidence equally supports defendant’s version of events, as does the testimony of his two witnesses, that he did not participate in the theft of the truck and did not learn that the truck was stolen until after he began riding around with Temple, at which time, he tried to help Temple sell the truck. Therefore, the evidence in this case, viewed in a light most favorable to the verdict, supports two theories, one consistent with innocence. “When the circumstantial evidence supports more than one theory, one consistent with guilt and another with innocence, it does not exclude every other reasonable hypothesis except guilt and is not sufficient to prove the defendant’s guilt beyond a reasonable doubt.” (Citations and punctuation omitted.) Morrison v. State, 220 Ga. App. 151, 153 (1) (a) (469 SE2d 686) (1996). And while “the jury generally determines whether every other reasonable alternative but guilt has been excluded, we must not be blinded by [a] verdict when a reasonable hypothesis of innocence appears from the evidence or lack thereof, and may declare such as a matter of law.” (Citations and punctuation omitted.) Jordan v. State, 225 Ga. App. 424, 426 (484 SE2d 60) (1997).

Because the evidence presented at trial in this case did not exclude the reasonable hypothesis that Temple had stolen the truck without defendant’s knowledge or participation prior to the time defendant started riding around in the truck with Temple, defendant’s conviction for theft by taking the truck is insupportable as a matter nf law. Accordingly, we conclude that the trial court erred in denying defendant’s motion for a directed verdict of acquittal on that charge. Morrison, 220 Ga. App. at 153-154 (1) (a).

Judgment reversed.

Johnson and Blackburn, JJ, concur.

Dupont K. Cheney, District Attorney, John T Durden, Jr., Assistant District Attorney, for appellee.

       In a separate action, Temple was charged with and pled guilty to theft by taking the truck. The State introduced a certified copy of Temple’s guilty plea during defendant’s trial to demonstrate that the truck had actually been stolen, but Temple did not testify against defendant and there is no evidence that Temple ever implicated defendant in the actual theft.


author: Ruffin, Judge.

text:
    A97A0154.
    A97A0923.
    CARTEROSA, LTD. v. GENERAL STAR INDEMNITY COMPANY. CARTEROSA, LTD. v. HAYNIE & BYRD INSURANCE, INC.
    (489 SE2d 83)
   Ruffin, Judge.

These related appeals arise from a single action brought by Carterosa, Ltd. (“Carterosa”) against its insurer, General Star Indemnity Company (“General Star”), and its insurance agent, Haynie & Byrd Insurance, Inc. (“Haynie & Byrd”). Carterosa sued General Star and Haynie & Byrd when coverage was denied for fire damage sustained by a building owned by Carterosa. In separate orders, the trial court granted summary judgment to both defendants. Carterosa appeals, and for reasons which follow, we affirm.

Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]” Id.

Viewed in this light, the record reveals the following facts. Carterosa owned property containing an abandoned mill, as well as several other adjacent buildings. Beginning in 1987, the property was insured with one-year renewable surplus line insurance coverage through Haynie & Byrd, which secured the coverage from a surplus lines insurance broker, B. Jones & Associates (“B. Jones”). In 1991, B. Jones obtained coverage on the property from General Star.

The record shows that each annual policy issued on the property contained an endorsement designating, by an attached diagram, the buildings covered by the policy. The endorsement attached to the 1991 General Star policy provided: “We agree with you that this policy covers only that part of the building indicated by cross-hatching in the attached diagram. All other buildings, portions of buildings or other structures at this location are excluded under this policy.” The diagram showed that a vacant building located at the northern end of the property was not insured.

In May 1991, B. Jones requested that Haynie & Byrd confirm the structures covered by General Star’s policy. In response, Haynie & Byrd sent B. Jones a diagram of the property in June 1991. The diagram indicated that a vacant building designated as building “D” and located on the northern end of the property was not insured.

Two years later, in August 1993, B. Jones again sought to verify the buildings covered by the policy. Instead of corresponding solely with Haynie & Byrd, B. Jones sent a diagram directly to Charles Carter, Carterosa’s sole general partner. In a memorandum accompanying the diagram, B. Jones requested as follows: “The ‘crosshatched’ portion of the diagram is the portion which we were asked to insure by your agent and for that reason the diagram currently forms part of your policy. From our discussion, it seems that there may be some confusion on this. Please indicate on the diagram the portion of the building which you wish to cover.” In addition to showing the insured structures, the diagram indicated no coverage for a building labeled “2 story joisted-masonry vacant mill” located on the northern end of the property in approximately the same position as building “D” on the June 1991 diagram.

A representative from B. Jones testified that Carter never responded to the inquiry. Carter contends, however, that he telephoned the B. Jones office and stated that he could not understand what was covered on the diagram. According to Carter, B. Jones similarly admitted confusion over the coverage. At that point, Carter assumed “somebody was trying to work to get it straight. [He] wasn’t. It wasn’t up to [him].” Carter further testified that he intended the multi-story main mill building on the northern end of the property to fall within the coverage. After reviewing the diagram sent by B. Jones, Carter knew that the property covered by the policy was wrong and had been wrong for some time. Nevertheless, he did not send B. Jones or Haynie & Byrd anything in writing to indicate the proper coverage. He simply “assumed [the endorsement diagram] was a mistake all the way through. [He] never paid much attention to it because to [him] from an insurance standpoint it was ridiculous. And [he] just figured it was one of those things they’d catch sooner or later.”

On April 22, 1994, the policy came up for renewal. Two months prior to the renewal date, B. Jones wrote Haynie & Byrd and requested renewal information. At Carterosa’s request, Haynie & Byrd responded that “[e]verything is the same as last year.” On April 14, 1994, B. Jones faxed Haynie & Byrd a renewal offer, which specified that the “[c]overage [would be] limited to [the] diagram with cross hatching showing covered portion of building as per the expiring policy.” The offer further stated that “[i]n order to bind coverage, we must be notified in writing or by fax prior to binding date.”

Haynie & Byrd did not respond in writing or by fax. Instead, Haynie & Byrd agent Terri Worthey telephoned B. Jones, verbally told the broker that Carterosa was interested in renewal, and requested a premium financing agreement. At that point, B. Jones faxed the agreement to Haynie & Byrd with a note stating that “[i]n order to bind, we will need signed agreement.” Haynie & Byrd sent Carterosa the financing agreement, which was signed on April 27, 1994 and mailed back to Haynie & Byrd the next day. Haynie & Byrd received the executed agreement on May 2, 1994, but never forwarded it to B. Jones.

On April 28, 1994, the main mill building burned. General Star, through B. Jones, informed Haynie & Byrd that it would not cover the loss because the insurance policy expired, .without renewal, on April 22, 1994.

Carterosa subsequently sued General Star and Haynie & Byrd, arguing that General Star improperly denied coverage and that Haynie & Byrd breached its fiduciary duty to Carterosa. Granting summary judgment to both defendants, the trial court first determined that Carterosa’s claim against General Star fails because Carterosa never accepted General Star’s offer to renew the insurance policy. With respect to Haynie & Byrd’s motion, the trial court further determined that (1) even if Haynie & Byrd negligently failed to renew the policy, Carterosa suffered no damage because the building that burned would not have been covered, and (2) Haynie & Byrd owed Carterosa no duty to ensure coverage for the main mill building.

Case No. A97A0154

In Case No. A97A0154, Carterosa challenges the trial court’s ruling as to General Star. We find no error.

1. The record shows that Carterosa never accepted General Star’s offer to renew the insurance policy prior to the fire. Accordingly, the trial court properly granted summary judgment to General Star.

“A renewal insurance policy, as the original, must be accepted by both parties before there is a completed contract. [Cits.]” Phillips v. Southern Home Ins. Co., 121 Ga. App. 126, 127 (173 SE2d 123) (1970). A mere offer to renew does not create a contract unless accepted by the insured. Assoc. Mutuals v. Pope Lumber Co., 200 Ga. 487, 495 (4) (37 SE2d 393) (1946). Furthermore, the offeror may specify á method through which the offer must be accepted. “ ‘The offer must be accepted in the manner specified by it; and if it calls for a promise, then a promise must be made; or if it calls for an act, it can be accepted only by the doing of the act.’ [Cit.]” Herring v. Dunning, 213 Ga. App. 695, 699 (446 SE2d 199) (1994). See also Anderson, Clayton & Co. v. Mangham, 32 Ga. App. 152, 156 (123 SE 159) (1924) (“an offer may contemplate acceptance by the doing of an act; and if the act be performed while the offer is in life, a binding contract is created, and the person making the offer must abide by its terms”).

(a) In this case, General Star, through its broker B. Jones, offered to renew Carterosa’s insurance coverage. Included within this offer, however, were requirements as to the method of acceptance. When initially tendered, the offer required acceptance in writing or by facsimile transmission. B. Jones then instructed that the offer could be accepted only upon its receipt of Carterosa’s signed financing agreement.

We need not consider whether imposition of this subsequent condition for acceptance constituted a withdrawal or waiver of B. Jones’ initial requirement that the offer be accepted by fax or in writing. In this case, the record presents no evidence that Carterosa or its agent, Haynie & Byrd, complied with any of the conditions. Carterosa did not accept the offer in writing or by facsimile transmission. Furthermore, neither Carterosa nor Haynie & Byrd transmitted the financing agreement to B. Jones, despite its express instructions for binding coverage. The record shows that Carterosa signed the agreement and sent it to Haynie & Byrd, where it remained until well after the fire.

Carterosa’s reliance on the mailbox rule is misplaced. We have explained the mailbox rule as follows: “A person who by the United States mail sends to another an offer or proposal which requires only the latter’s acceptance or confirmation to create a valid contract, and who says nothing as to how the answer of acceptance or confirmation shall be communicated, nor that it shall take effect only upon the actual receipt of the acceptance by the offerer, impliedly adopts the mails as his agency, and authorizes its use in the transmission to him of an acceptance. Where the recipient of the offer thus duly deposits his acceptance in the mail, in an envelope properly stamped and addressed to the offerer, the contract thereupon becomes complete and binding, without reference to whether or not the acceptance actually reaches the addressee. [Cits.]” Rowntree Bros. v. Bush, 28 Ga. App. 376 (1) (111 SE 217) (1922). See also OCGA § 13-3-3.

Pretermitting whether the mailbox rule applies when the offer is made by facsimile, rather than letter, it does not aid Carterosa. B. Jones specified that it would not bind coverage until it received the signed financing agreement. Thus, B. Jones never adopted the mail as its agency. See id. Furthermore, the signed financing agreement was never mailed to B. Jones or General Star, the only possible offerors in this case. See id.

Neither Carterosa nor Haynie & Byrd provided General Star’s broker, B. Jones, with the executed agreement. Accordingly, Carterosa did not meet this specific condition for accepting the renewal offer.

(b) Carterosa further argues that Haynie & Byrd orally accepted General Star’s offer on behalf of Carterosa. Even if oral acceptance was sufficient, however, the record shows that Haynie & Byrd never verbally assented to the offer.

Haynie & Byrd’s owner testified that his employee, Terri Worthey, informed B. Jones by telephone that Carterosa accepted the renewal offer. Worthey testified, however, that she did not orally accept the offer. According to Worthey, she “[vjerbally told Bruce Jones that [Carterosa was] interested in renewal and that’s when [B. Jones] sent over the premium finance agreement and that’s when [B. Jones] stated that [B. Jones] had to have that back signed before they could bind coverage.” (Emphasis supplied.)

Regardless of whether Haynie & Byrd’s owner thought acceptance had been orally communicated, Worthey clearly testified that she never accepted the renewal offer. Carterosa has pointed to no other evidence that it, or its agent, verbally assented to the offer. The trial court properly concluded that Carterosa never renewed the insurance coverage.

2. The record also shows that even if Carterosa had successfully renewed the policy prior to the fire, the main mill building that burned would not have been covered by the insurance, further entitling General Star to summary judgment.

In anticipation of the April 1994 policy renewal, Carterosa instructed Haynie & Byrd to obtain the same coverage contained within the previous year’s policy. As a result, the coverage in the new policy was to be “limited to [the] diagram with cross hatching showing [the] covered portion of building as per the expiring policy.” The diagram accompanying the April 1993 policy shows that the multistory main mill building was not to be covered by the insurance.

At his deposition, Carter testified that the only building he intended to insure was the main mill building. In August 1993, however, he reviewed the diagram from the April 1993 policy and recognized that it showed coverage for the wrong building. As Carter explained, “[i]t just never occurred to me to figure [the diagram] out. It just never occurred to me that it could be proper and correct because it never occurred to me that’s what I was insuring. And I really didn’t pay that much attention to it. I knew there was an error. And in my opinion it was up to the insurance people to get it straight.” Asked whether he reviewed any of his insurance documerits prior to the fire, Carter responded: “Possibly. I never paid much attention to that. I just [knew] whatever they had on those papers was wrong.” (Emphasis supplied.)

By Carter’s own admission, the coverage provided in Carterosa’s insurance policy was not what he intended. Regardless of whether Carterosa desired coverage for the two-story main mill building, it was not covered by the 1993 policy. Accordingly, it also would not have been covered by the 1994 renewal policy.

Case No. A97A0923

In Case No. A97A0923, Carterosa appeals the trial court’s grant of summary judgment to Haynie & Byrd. Again, we find no error.

3. In granting Haynie & Byrd’s motion for summary judgment, the trial court first found that even if Carterosa’s insurance agent negligently failed to renew the insurance policy prior to the fire, Carterosa suffered no damage because the burned building would not have been covered under the policy. We agree. As found in Division 2, the trial court properly concluded that the main mill building would not have fallen within the insurance coverage.

4. The trial court further concluded that Haynie & Byrd is not liable to Carterosa for failing to include the main mill building within the proposed renewal coverage. Specifically, the trial court determined that Haynie & Byrd owed no duty to ensure coverage for the main mill building because “[t]he burden lay squarely on [Carterosa’s] shoulders to read [the] policy and to ascertain whether it covered the buildings which [Carterosa] intended to cover.” We find no error in the trial court’s conclusion.

“The general rule is that an insured has a duty to read and examine an insurance policy to determine whether the coverage requested was procured.” Jim Anderson & Co. v. ParTraining Corp., 216 Ga. App. 344, 345 (2) (454 SE2d 210) (1995). Carterosa argues that this rule does not apply here because, as we found in Division 1, no insurance contract was formed following the April 1994 renewal offer. In King v. Brasington, 252 Ga. 109, 110 (2) (312 SE2d 111) (1984), the Supreme Court was asked to consider whether “the duty to examine and reject an incorrect policy [applies] in case of failure to procure any policy at all,” but did not reach the issue. We now consider the issue under the facts of this case.

The record shows that in April 1994, Carterosa specifically asked Haynie & Byrd to renew the same coverage obtained the previous year. Accordingly, Haynie & Byrd instructed B. Jones that “[everything is the same as last year.” Thus, this case does not involve procurement of an entirely new policy that Carterosa had never seen. Compare Moseley v. Coastal Plains Gin Co., 199 Ga. App. 99, 103 (4) (404 SE2d 123) (1991) (“[b]ecause the evidence was undisputed that appellee never received any insurance policies prior to the fire, there was no evidence to support appellant’s requested charge regarding the duty of an insured to read his policy”). Rather, the renewed policy was to encompass the same terms and incorporate the same coverage diagram as the expiring policy. We find that under these circumstances, Carterosa had a duty to reject any inaccuracies or discrepancies in the policy to be renewed.

It is undisputed that Carterosa’s sole general partner, Carter, reviewed the coverage diagram in August 1993. At that point, he recognized that the coverage was not correct and had been wrong for some time. He allegedly spoke with a B. Jones representative and stated that he did not understand what was covered. After that purported call, however, he had no further conversations with anyone at Haynie & Byrd or B. Jones regarding the proper coverage. Furthermore, he ignored B. Jones’ request to submit a sketch of the buildings he wanted covered. According to Carter, he simply assumed that Haynie & Byrd would protect his interests “as best [it] could.”

We find that Carterosa completely neglected its responsibility to read the insurance policy and reject any inaccuracies. Carter recognized that the policy’s coverage was wrong well before the April 1994 renewal date, but failed to take any action to remedy the situation. Although he told B. Jones that he could not understand the diagram, at deposition he clearly testified that he knew the sketch contained mistakes and provided coverage for the wrong structure.

Carterosa attempts to avoid the duty to read doctrine by citing exceptions to the rule. We have held that an insured is relieved of its general duty to read the policy “where an agent intentionally misrepresents the existence or extent of coverage, [cit.], or where the prospective insured must rely on the expertise of the agent to identify and procure the correct amount or type of insurance. [Cit.]” Epps v. Nicholson, 187 Ga. App. 246, 248 (2) (370 SE2d 13) (1988). These exceptions do not apply here.

Carterosa claims that Haynie & Byrd misrepresented to Charles Carter that the “main building” was covered under the policy. To establish misrepresentation, however, Carterosa must prove that it justifiably relied on the false representation. See Consulting Constr. Corp. v. Edwards, 207 Ga. App. 296, 298 (1) (427 SE2d 789) (1993). In this case, Carter knew that the coverage provided by the 1993 and prior policies was wrong. As a matter of law, any reliance on Haynie & Byrd’s alleged statement that the policies covered the “main building” was not justified.

Decided July 11, 1997

Dickinson & Mixson, David F. Dickinson, for appellant.

Bovis, Kyle & Burch, John M. Bovis, William S. Allred, Michael T. Thornton, for appellees.

Furthermore, we find no evidence that Carterosa was forced to rely on Haynie & Byrd’s “expertise” to secure insurance for the main mill building. Carterosa’s failure to ensure coverage for that building did not arise from complexities inherent in the policy. On the contrary, Carterosa’s general partner knew the coverage was wrong, but simply decided it was not his responsibility to remedy the confusion.

Carterosa’s failure to examine and reject the 1993 policy relieves Haynie & Byrd of liability resulting from the lack of insurance coverage. See Epps, supra. Accordingly, we affirm the trial court’s grant of summary judgment to Haynie & Byrd.

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur.

       We also note that B. Jones and General Star referred to the building covered by the renewal offer as a “warehouse,” rather than a mill. As shown by an affidavit submitted by Carter, the property included not only the main mill building, but several buildings designated as “warehouses.”


author: Andrews, Chief Judge. McMurray, Presiding Judge,

text:
    A97A0172.
    FREYER et al. v. SILVER.
    (488 SE2d 728)
   Andrews, Chief Judge.

We granted the application for interlocutory appeal of the defendants below in this slip and fall case to consider the trial court’s denial of their motions for summary judgment. We reverse.

1. In reviewing grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996); Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996).

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2. So viewing the evidence here, it was that, on May 23, 1992, Silver went to a Po Folks operated by defendant Folks, Inc. and located in a shopping center owned by Domus Properties. Defendants Freyer and Uberto are the general partners of Domus and purchased the shopping center in 1991, after its construction. Prior to the purchase, Freyer retained architect Coursey and the two walked over the property so Coursey could evaluate it from a structural standpoint, and no problems were noted.

Silver had been to this Po Folks before, but had eaten inside. On May 23, 1992, “a pleasant day,” near suppertime and while it was still daylight, Silver went to Po Folks to order takeout. She parked her car in one of two spots designated for “To Go Parking.” The - spot in which she parked was directly adjacent to a catch basin for draining water from the parking lot. She pulled straight into the parking place, placing the catch basin on the passenger side of her car. She was familiar with catch basins and acknowledged that one was located near her residence. She went in, ordered her food, and returned to the car to wait for it, since she had her dog in the car. She did not cross the catch basin either going into the restaurant or coming out. After returning safely to the car, she walked down the passenger side, next to the catch basin. She was looking where she was going and stood by the side of the car looking toward Po Folks and standing so that her toes were pointing toward the catch basin.

Asked what caused her to fall, Silver testified as follows: “I must have just shifted my weight or moved my foot a little, and all of a sudden I went sliding down with both feet into this area. . . . There was some shadow cast from the sun in the west. ... I know that there was a shadow here. ... It was like early dusk. Q. Did you have any difficulty seeing where you were going? A. No. ... Q. Do you believe the light conditions had anything to do with your fall? A. I, I really don’t know. Q. Do you know why you fell? A. Because there was a hole there. There was an area that was slanting down that I did not see, and I couldn’t see. ... It looked straight. . . . There was no way I could see it. It looked as if it was a very safe place and a flat place to stand. Q. Before the fall had you looked at this area? A. I walked by and looked and was standing there, and everything seemed perfectly safe to me. . . .” Asked about the differentiation of color between blacktop and concrete, Silver acknowledged a distinction, “but I believe if you go back to where there is a shadow, to me, that night it did not stand out as it does in contrast in this picture. ... I don’t consider when I fell late evening, but I do feel that there was a shadow here which made it look different than it does in this picture.”

The only possible reason Silver gave for not being able to see the sloping hole in the catch basin, which was made of concrete lighter than the parking area of black asphalt, was that the sun was setting and her car was parked so that a shadow was cast on that sloping concrete portion.

The photos submitted by Silver of the spot where she fell with her car parked in approximately the same location as the night she fell, clearly indicate, however, that, even when shadowed, the manhole cover on the catch basin is visible, indicating the location of a culvert for draining water.

Silver submitted the affidavit of Liebmann, an engineer, concerning the catch basin, which he contended was defectively designed and constructed because the interface between the parking space and the storm drain was too steep an angle. Nonetheless, Liebmann stated that the danger “would be obvious ... to any user of the parking lot who could plainly see and become aware of the sharp drop.” In his opinion, Silver did not see the danger “because of the shading caused by her car which prevented her from seeing and appreciating the sharp drop off. . . .” The affidavit, however, does not address the significance of the manhole cover in relation to the culvert and drain opening.

“In slip and fall cases, ‘ “(p)roof of a fall, without more, does not give rise to liability on the part of a proprietor. There must be proof of fault on the part of the owner and ignorance of the danger on the part of the invitee.” ’ [Cit.]” Hallberg v. Flat Creek Animal Clinic, P.C., 225 Ga. App. 212, 215 (2) (483 SE2d 671) (1997).

Here, there can be no question that the catch basin was an open and obvious static condition and the only possible reason given by Silver as to why she could not see the hole in the catch basin was a shadow created by her car. This case is factually very similar to and controlled by MARTA v. Fife, 220 Ga. App. 298 (469 SE2d 420) (1996) (whole court). There, as here, a drainage culvert was involved. Fife stepped off a curb formed by the top of the catch basin and into the culvert which she did not see because she was looking at the door of her sister’s car.

Here, as in Fife, “[s]ince the drainage depression was open and obvious, [Po Folks, Freyer and Uberto were] under no duty to warn. An owner or occupier of land has a duty of exercising ordinary care to keep the premises and approaches safe for invitees. OCGA § 51-3-1. The basis of the owner’s liability is a superior knowledge of the condition that subjected the invitee to an unreasonable risk of harm. [Cit.] The hazard in this case is a ‘static’ condition which is not dangerous unless someone fails to observe it and steps into it. [Cit.] In cases involving static conditions, ‘if the invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.’ (Citation and punctuation omitted.) Rose v. Kennesaw House, 203 Ga. App. 648, 649 (417 SE2d 379) (1992). Also, we have held that where there is nothing to obstruct or interfere with the invitee’s ability to see the static defect, the owner is justified in assuming that the visitor will see it and realize the risks involved. Crenshaw v. Hogan, 203 Ga. App. 104, 105 (416 SE2d 147) (1992).” Fife, supra at 300 (2). See also Tollman v. Zamani, 224 Ga. App. 518 (481 SE2d 232) (1997) (concrete block, approximately ten inches high and thirty inches wide with four metal bolts protruding from the top approximately six inches, held to be open and obvious static condition in parking lot).

“ ‘Occupiers of premises whereon the public is invited to come are not required to keep their parking lots and other such areas free from irregularities and trifling defects. One coming upon such premises is not entitled to an absolutely smooth or level way of travel.’. . . [Cit.] ‘It is common knowledge that small cracks, holes and uneven spots often develop in pavement; and it has been held that where there is nothing to obstruct or interfere with one’s ability to see such a static defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved.’. . . [Cit.]” Piggly Wiggly Southern v. Bennett, 217 Ga. App. 496, 497 (458 SE2d 138) (1995) (involving a concrete lip at the edge of the parking lot where it adjoined a grocery cart ramp); see also Long John Silver’s v. Coleman, 223 Ga. App. 864 (479 SE2d 141) (1996) (a small hole or crack in a concrete ramp in front of a restaurant).

Certainly as common, if not more so, are catch basins of the type involved here intended to drain water from public ways and parking lots, as acknowledged by Silver. See Fife, supra; Sullenberger v. Grand Union Co., 201 Ga. App. 194 (410 SE2d 381) (1991) (use of concrete dividers or bumpers in a parking lot does not constitute negligence).

“ ‘It is generally incumbent upon one to use his eyesight for the discovering of any obstruction that may have been placed in the way.’ (Citations and punctuation omitted.) McCrary v. Bruno’s, Inc., 219 Ga. App. 206, 209 (464 SE2d 645) (1995).” Batten v. J. H. Harvey Co., 223 Ga. App. 262, 263 (477 SE2d 400) (1996).

The shadowing of the hole by the sun’s setting behind her own car is the only possible explanation put forward by Silver for why she did. not see the hole. Either Silver could see the hole or her inability to be able to do so was caused by her own decision to walk next to a catch basin in a shadowed area because she thought the pavement was level when it was not. “Plaintiff is charged with knowledge of those defects which he had actually observed or which were so transparently obvious that [her] failure to observe them cannot reasonably be excused.” (Emphasis supplied.) Brown v. Carlisle, 214 Ga. App. 483, 484 (448 SE2d 256) (1994).

Decided July 11, 1997

Bach & Hulsey, Robert J. Hulsey, Dermer & Black, Stephen F. Dermer, for appellants.

Warshauer & Woodruff, Michael J. Warshauer, Michael R. Goldberg, for appellee.

Po Folks and the owners of the shopping center were both entitled to summary judgment. • See Anderson v. Turton Dev., 225 Ga. App. 270, 273 (2) (483 SE2d 597) (1997) (operator of inn entitled to summary judgment although owner, which designed and constructed allegedly defective handicapped ramp, was not).

Judgment reversed.

Birdsong, P. J., Beasley, Smith and Ruffin, JJ., concur. McMurray, P. J., and Eldridge, J, dissent.

McMurray, Presiding Judge,

dissenting.

For the reasons given in my dissent in MARTA v. Fife, 220 Ga. App. 298, 301 (469 SE2d 420), I respectfully dissent from the reversal of the trial court’s denial of summary judgment in the case sub judice. In my view, plaintiff’s evidence is sufficient to create a genuine issue of material fact whether an optical illusion prevented plaintiff from avoiding the hazard posed by the defectively designed and constructed catch basin. Under Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485), such a plausible distraction is sufficient-to preclude a ruling that plaintiff failed, as a matter of law, to exercise ordinary care to avoid the danger posed by that dangerously defective catch basin.

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


author: Andrews, Chief Judge. Beasley, Judge,

text:
    A97A0244.
    HANSEN et al. v. MT. YONAH SCENIC ESTATES CLUB, INC. et al.
    (488 SE2d 732)
   Andrews, Chief Judge.

The appellants in this case are seven individual members of a neighborhood association who have sued the association and three members of the Board of Directors for breach of fiduciary duty and bad faith. The trial court granted summary judgment to the association and the directors, finding that appellants had not come forward with any additional evidence beyond their verified complaint. Appellants contend the specific facts set out in the verified complaint and four amended complaints are sufficient to raise issues of fact for a jury.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. ... A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In support of their motion for summary judgment, appellees submitted affidavits from the three board members, Layer, Praet, and Chambers. The affidavits are identical, all stating that the affiants performed their duties as a member of the Board of Directors in the good faith belief that they were acting in the best interests of the corporation and with the care of an ordinary person in like circumstances.

In opposing this motion, appellants rested on their verified pleadings, which claimed the defendants had (1) distributed funds from Mt. Yonah and bound the corporation to agreements without any authority; (2) acted in bad faith by refusing to allow appellants to inspect the corporate records; (3) made no accounting of corporate records and gave a non-board member custody of the corporate records; and (4) acted in bad faith by paving roads without the agreement and approval of a majority of the members.

“A properly verified pleading containing specific factual allegations must be considered in opposition to affidavits filed in support of a motion for summary judgment and may defeat the motion.” (Citations and punctuation omitted.) Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). However, a verified pleading has no greater effect than an affidavit tendered pursuant to OCGA § 9-11-56 (e) and must comply with the Rule 56 (e) requirement that both supporting and opposing affidavits shall be made on personal knowledge. Id.

Here, we find the verified complaint, as set out above, contained specific factual allegations sufficient to withstand the affidavits submitted in support of the defendants’ motion for summary judgment. However, the verifications do not state that they are made on personal knowledge, nor do the contents of the pleadings themselves indicate that material parts of them are within the personal knowledge of the parties. Moore, supra at 596; Spires v. Relco, Inc., 165 Ga. App. 4, 5 (299 SE2d 58) (1983). For instance, with regard to their claim that a non-board member had custody of the records, the complaint states this was “to the best of Plaintiffs’ knowledge.” The complaint also states “[pjlaintiffs believe that the named defendants have continued to disburse monies. . . .” Thus, the complaint, although verified, is not made with personal knowledge but is simply a variation on the “information and belief” type. Moore, supra at 596; Computer Maintenance Corp. v. Tilley, 172 Ga. App. 220, 223 (322 SE2d 533) (1984); Spires, supra.

Moreover, the trial court, after several hearings and in three previous orders, had dealt with all the issues raised except for whether a receiver should be appointed and whether or not the defendants acted in bad faith and not in the best interests of the corporation in doing or failing to do the acts complained of in the complaint and amended complaints. A review of the complaint and amended complaints shows no averments as to personal knowledge of the plaintiffs as to whether or not defendants were acting in bad faith, nor do the contents of the pleadings themselves indicate that the parties have personal knowledge on this issue. See Moore, supra at 596; Spires, supra at 5. This is especially true when, as previously discussed, the amended complaint states: “The Defendants herein have acted in utmost bad faith, unlawfully and without proper authority, in continuing to insist on acting on behalf of the Corporation, MT. YONAH SCENIC ESTATES CLUB, INC. Plaintiffs believe that the named Defendants have continued to disburse monies and contractually bind the corporation when they no longer have any authority to represent the corporation.” (Emphasis supplied.) Accordingly, there is simply no evidence in the amended complaint that defendants even performed some of the acts complained of, much less that these acts were performed in bad faith. In contrast, the affidavits of the defendants do indicate they have personal knowledge on this issue and state that they “at all times performed the duties of the office in the good faith belief that I was acting in the best interest of the Corporation.”

Therefore, whether or not some of the facts asserted in the amended complaint can be construed as within the personal knowledge of the plaintiffs is immaterial since there is no evidence before us tending to show that defendants were acting in bad faith. Lau’s Corp., supra at 495. Accordingly, the pleadings were not sufficient to withstand a motion for summary judgment supported by sworn affidavits based on personal knowledge of the defendants. The trial court did not err in granting the motion for summary judgment.

Judgment affirmed.

McMurray, P. J, Birdsong, P. J., and Eldridge, J., concur. Beasley, Smith and Ruffin, JJ, dissent.

Beasley, Judge,

dissenting.

I respectfully dissent because the amended complaint, which was verified individually by the 13 plaintiffs remaining at the time it was filed, met the requirements of the law to create a genuine issue of material fact when measured against the affidavits of the defendants. Defendants’ affidavits were filed after two hearings and two injunctions against particular defendants had been ordered by the trial court. One of them was enjoined from further participation as a member of the board of directors and officers, and the other ordered that a proper membership meeting be called because of various irregularities in a purported meeting. The court’s orders set out the supporting findings of fact.

OCGA § 9-11-56 (e) requires that affidavits “shall be made on personal knowledge.” It does not require that an affidavit must employ those precise words in order to be valid. It suffices if the fact that the affidavit is made on personal knowledge is conveyed, to assure that the statements would not constitute hearsay or mere speculation or conclusions or suffer some other such incompetency and thus be inadmissible in evidence. See, e.g., Davis v. Haupt Bros. Gas Co., 131 Ga. App. 628, 629 (2) (206 SE2d 598) (1974); Computer Maintenance Corp. v. Tilley, 172 Ga. App. 220, 223 (2) (322 SE2d 533) (1984).

Even defendants’ affidavits do not include such language, but it is evident from the nature of the facts set forth that they are made on personal knowledge. Illustrative is the first fact set forth in each of the three affidavits: “I am/was a member of the Board of Directors of Mt. Yonah Scenic Estates Club, Inc.” If the law required the document containing the testimony to expressly state that it was “made on personal knowledge,” then these affidavits would fall short and the question of the competency of plaintiffs’ testimonial evidence would be moot. But defendants’ affidavits show that they are made on personal knowledge by “other material” rather than on an outright statement, which is allowed. Wakefield v. A. R. Winter Co., 121 Ga. App. 259, 264 (174 SE2d 178) (1970). In Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988), the Court examined the pleadings because “ ‘(t)he requirement of personal knowledge . . . may be met where the contents of the pleading indicate that material parts of it are statements within the personal knowledge of the party.’ [Cit.]”

Properly verified pleadings are equivalent to a supporting or opposing affidavit for the purpose of raising a fact issue on summary judgment. Harrison v. Harrison, 159 Ga. App. 578 (284 SE2d 83) (1981); Foskey v. Smith, 159 Ga. App. 163 (283 SE2d 33) (1981). Foskey’s verified answer, which swore that the factual allegations were true and correct, was sufficient to defeat a motion for summary judgment. Id. at 164.

The plaintiffs’ amended complaint meets the test, at least, in some material particulars. Each verification states that “the facts and allegations set forth in the foregoing complaint are true and correct.” Period. There is no qualifier. There is no equivocator. It is a positive, direct, forthright statement unencumbered by a fatal detractor such as “to the best of my knowledge” or “upon information and belief.” See Spires v. Relco, Inc., 165 Ga. App. 4, 5 (299 SE2d 58) (1983).

The complaint sets forth facts such as what occurred at the August 20, 1994 membership meeting, what defendants did thereafter, that defendants refuse to surrender the association books and records, that there has been no accounting made of association funds, that defendants have acted in bad faith by refusing to provide the records, by continuing to conduct business without lawful right, and by letting paving contracts after the association voted not to pave any roads other than the main entrance. The statements that a named person was the last known person to have the financial records “to the best of Plaintiffs’ knowledge” and that plaintiffs “believe” that defendants have continued to disburse monies are not statements of fact but do not purport to be; they merely explain some of the consequences of the alleged misdeeds of defendants, that is, that plaintiffs as members do not know who has the financial books or whether defendants disbursed association funds or contractually bound it. These two statements do not invalidate the sufficiency of the testimony that the other facts set forth are “true and correct.” It is implicit that their personal knowledge is gained from their status and involvement as members of the defendant club.

Decided July 11, 1997.

Erck, Dever & Merlin, Lawrence M. Merlin, Judith W. Bowman, for appellants.

William S. Hardman, for appellees.

Since the verified amended complaint indicates personal knowledge of material facts, it meets the defendants’ sworn statements that they acted in good faith and with the care of an ordinary person in like position and circumstances. The latter constitutes subjective, biased opinion, not objective statements of fact by disinterested persons. Construing all evidence including reasonable inferences most favorably toward the nonmovant plaintiffs, Greenforest Baptist Church v. Shropshire, 221 Ga. App. 465 (471 SE2d 547) (1996), we must conclude that defendants have not eliminated the necessity for a jury trial. The sworn testimony of the two sides is in conflict as to pertinent facts; summary judgment is premature.

I am authorized to state that Judge Smith and Judge Ruffin join in this dissent.

       The complaint was brought by seventeen members initially, but ten were voluntarily dismissed in the course of the litigation.


text:
    A97A0246.
    WILLIAM N. ROBBINS, P.C. v. BURNS.
    (488 SE2d 760)
   Pope, Presiding Judge.

William N. Robbins, PC. (“the Robbins firm”) sued its former associate, Stephen Burns, for breach of an attorney agreement after Burns resigned from the Robbins firm and continued representing clients he had represented at the firm. The superior court granted in part Burns’ motion for summary judgment, and Robbins appeals. Concluding that the superior court correctly determined that the non-compete agreement was unenforceable and that no factual issues remained regarding the claim for money had and received, we affirm.

On August 1, 1993, Bums was retained by the Robbins firm as an associate. The Robbins firm handles plaintiffs’ personal injury, malpractice and workers’ compensation litigation; most of the cases are taken on a contingency fee basis. In July 1993, Burns and the Robbins firm executed an attorney agreement, which included terms governing Burns’ possible departure from the firm. In October 1994, Burns and the Robbins firm entered into a second agreement governing the terms of Burns’ possible departure from the firm. Several months later, Burns resigned, and some clients continued to have Burns represent them in their pending workers’ compensation cases.

The Robbins firm sued Burns, alleging that he had breached the agreement in various ways including: failing to allow the Robbins firm to inspect the client files he removed; failing to provide an accounting of the client files he removed; failing to reimburse the firm for the out-of-pocket expenses it incurred on those files; and failing to honor the fee divisions of the contract. The complaint set forth a count for unjust enrichment and quantum meruit and sought to enjoin Burns from further activity in violation of the contract. The Robbins firm amended the complaint and included a count for tortious interference with contract and one for money had and received. Burns answered and moved to dismiss, arguing that the agreement was unenforceable under the Code of Professional Responsibility and OCGA § 34-9-108. Attached to the motion was Burns’ affidavit in which he stated that although he had been retained by sixteen of Robbins’ former clients, he had removed only one file from the firm. The Robbins firm responded and filed Robbins’ affidavit, in which Robbins claimed that Burns took 19 files.

The court converted the motion to one for summary judgment and granted the motion on the counts for breach of contract, quantum meruit and money had and received. The court left pending the claim of tortious interference with contractual relations.

1. Preliminarily, we note that this case is properly before us. See Feldman v. Edwards, 107 Ga. App. 397 (130 SE2d 350) (1963). Before filing this suit, the Robbins firm filed liens to recover the attorney fees in most of the cases, but these liens were eventually dismissed by a court or by Robbins.

The attorney agreement at issue provided that if Burns left the firm he would not solicit any of the clients from the Robbins firm. Specifically, it stated: “[njotwithstanding anything contained herein to the contrary, should Employee be terminated by Robbins or cease for any reason to continue in the employ of Robbins: (a) Employee agrees that he/she will not solicit . . . any of the clients of the Robbins’ firm should the Employee cease his employment relationship with the Robbins’ firm for any reason whatsoever. This paragraph is not meant to restrict the practice of Employee, but is made in accordance with the Directory Rules of the State Bar of Georgia, see DR2103. Should any client of the Robbins’ firm seek out said Employee and ask said Employee to represent him/her, the following paragraphs [represent the controlling fee structure].”

The agreement then provided a fee structure, based on the stage of litigation of each case, which would apply if a client of the Robbins’ firm asked Burns to represent the client. The agreement further stated: “[i]f the Employee brings any business into the firm from his/ her own outside source, he/she will receive thirty-three and one-third (33-1/3%) percent of the net attorney fee generated on those matters. If the Employee leaves the firm for any reason, then Robbins would be compensated on the same basis.” The agreement also outlined rules regarding reimbursement for out-of-pocket expenses of removed files and making client files available for inspection before removing them from the firm. The agreement contained no limitation regarding duration. Compare Pittman v. Harbin Clinic &c., 210 Ga. App. 767 (437 SE2d 619) (1993).

“Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court [cits.], which considers the nature and extent of the trade or business, the situation of the parties, and all the other circumstances. A three-element test of duration, territorial coverage, and scope of activity has evolved as a ‘helpful tool’ in examining the reasonableness of the particular factual setting to which it is applied.” (Citations and punctuation omitted.) W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992).

Robbins argues that the court erred in granting summary judgment since the agreement is not a restraint on trade and is enforceable. This argument is without merit since the attorney agreement contained no limitation regarding duration; it essentially provided that Burns could never work for any clients who had ever been clients of the Robbins firm without compensating that firm. Less importantly, but still relevant, is that the agreement contained no geographical restriction — in other words, the contractual restrictions applied everywhere. The provisions overprotect the interests of the Robbins firm and unreasonably impact Burns and the public’s ability to choose professional services. See Singer v. Habif Arogeti & Wynne, P.C., 250 Ga. 376 (1) (297 SE2d 473) (1982); compare Roberts v. Tifton Med. Clinic, P.C., 206 Ga. App. 612 (426 SE2d 188) (1992); Cobb Family Dentistry v. Reich, 259 Ga. 450 (383 SE2d 891) (1989).

The Robbins firm argument that the fee schedule was enforceable is without merit. See Dougherty, McKinnon & Luby, P.C. v. Greenwald, Denzik & Davis, P.C., 213 Ga. App. 891, 892-893 (1) (447 SE2d 94) (1994). The fee schedule here is inextricably linked with the agreement not to compete, and as such, constitutes an unenforceable restraint on trade. See generally OCGA § 13-8-2. We base our conclusion on the overly broad language of the agreement and make no determination regarding the enforceability of these fee schedules had the contractual provisions been enforceable. Furthermore, we do not reach the arguments regarding whether the fee splitting agreement was violative of Rules 2-107 and 2-108 of the Code of Professional Responsibility Directory.

2. The Robbins firm argues that the court erred in granting the motion on the claim for money had and received. This argument is also without merit. An action for money had and received “lies where another has received money which the plaintiff, ex aequo et bono, is entitled to recover and which the defendant is not entitled in good conscience to retain. Under this cause of action, the fact that the money was received from a third person will not affect the liability of the defendant, if in equity and conscience, he is not entitled to hold it against the true owner.” (Citations and punctuation omitted; emphasis in original.) Dept. of Med. Assistance v. Hallman, 203 Ga. App. 615, 616 (1) (417 SE2d 218) (1992). Under this theory “recovery is authorized against one who holds the money of another which he ought in equity and good conscience to refund.” (Citations and punctuation omitted.) Piedmont Engineering &c. v. Balcor Partners-84 II, 196 Ga. App. 486, 489 (1) (396 SE2d 279) (1990). “In one word, the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money.” (Citations and punctuation omitted.) Laurens County v. Gay, 117 Ga. App. 793, 795 (3) (161 SE2d 906) (1968).

In the instant matter, Burns was not paid money which should have been paid to the Robbins firm. Although Burns may well be indebted to the Robbins firm for various aspects of file origination, Burns does not owe Robbins a refund. In other words, the Robbins firm was not the “true owner” of the money which the clients paid Burns. Accordingly, the court properly granted summary judgment on this claim.

Although the Robbins firm raised a claim for quantum meruit in the complaint, here it does not enumerate as error the court’s grant of summary judgment on this claim. “Matters not enumerated as error will not be considered on appeal. An enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration.” (Citations and punctuation omitted.) Sentry Ins. v. Majeed, 194 Ga. App. 276, 277 (1) (390 SE2d 269) (1990). Accordingly, we make no determination regarding that ruling.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

Decided July 11, 1997.

Arnall, Golden & Gregory, Karen B. Bragman, Henry M. Perlowski, for appellant.

David J. Reed, for appellee.

       Although the Robbins firm argues that Burns was allowed to negotiate the terms of the agreement, the undisputed evidence shows that the agreement was an employment contract, not a professional partnership agreement. See Roberts v. Tifton Med. Clinic, P.C., 206 Ga. App. 612, 614-615 (426 SE2d 188) (1992). Robbins does not contend that Burns was his partner, and accordingly, we do not apply the standards applicable to those agreements.

       In this connection, we note that any complaint that the Disciplinary Rules were violated would be appropriately addressed to the State Bar. See Nickerson v. Holloway, 220 Ga. App. 553, 554 (1), n. 1 (469 SE2d 209) (1996).


author: Andrews, Chief Judge.

text:
    A97A0258.
    BLUE CROSS & BLUE SHIELD OF GEORGIA, INC. v. KELL et al.
    (488 SE2d 735)
   Andrews, Chief Judge.

Blue Cross & Blue Shield of Georgia, Inc. (Blue Cross) appeals from the trial court’s grant of summary judgment to Dr. Kell on Blue Cross’ counterclaim against Dr. Kell in his original suit seeking reimbursement of claims from Blue Cross for patients treated at his clinic, The Private Clinic.

Review of Proceedings

Kell initiated litigation against the State Merit System in October 1991, contending that he was owed $154,867 for medical services rendered to employees insured by it (Case No. D-93448). The State Merit System’s insurance program is administered by Blue Cross.

In May 1992, Kell filed a separate suit against Blue Cross contending he was owed $43,158 for treatment of a specific patient which had been rendered pursuant to the Participating Physician Agreement into which he and Blue Cross had entered on March 7, 1988 (Case No. E-725). Blue Cross counterclaimed in this suit that “Kell made representations to BCBS concerning the nature of the services which were provided to this patient and the nature of the charges which were made to this patient and to BCBS which [he] knew to be false at the time . . . made them and which were for the intent and purpose of deceiving BCBS and inducing BCBS to pay them. BCBS reasonably relied on these representations and suffered damage. . . .” Additionally, Blue Cross contended that Kell’s actions were in violation of the Georgia Fair Business Practices Act, OCGA § 10-1-390 et seq. While the two actions were consolidated, the summary judgment on the fraud counterclaim is specific to Case No. E-725.

Summary judgment was granted State Merit and Blue Cross on Kell’s claims for payment, because the insurance plans and provider agreements allowed State Merit and Blue Cross, its administrator, sole discretion on coverage issues. That judgment was appealed to this Court and affirmed in Case No. A94A0988.

Fraud Claim

1. In reviewing grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996); Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996). The grant of summary judgment will be affirmed on appeal if it is right for any reason. Deese v. NationsBank of Ga., N.A., 222 Ga. App. 275, 277 (1) (474 SE2d 18) (1996).

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2. In order to prevail on its fraud claim against Kell, Blue Cross was required to come forward with evidence to prove that: (1) Kell made a false representation; (2) he knew the representation was false when made; (3) the representation was made to induce Blue Cross to act or refrain from acting; (4) Blue Cross justifiably relied on the representation; and (5) damages. Fowler v. Overby, 223 Ga. App. 803 (478 SE2d 919) (1996); Watson v. Zurich-American Ins. Co., 221 Ga. App. 4, 5 (470 SE2d 684) (1996).

During discovery, Blue Cross specified additional acts which it contended constituted fraud, i.e., submitting claims for services not actually rendered or for services performed but not needed; submitting claims for “excessive amounts”; submitting claims for amounts in excess of amounts charged private non-insured patients for the same services; and intentionally prescribing methadone to patients with the intent of keeping them addicted to it with no intent to ever wean them from it.

Dr. Kell signed a Participating Physician Agreement with Blue Cross on March 7,1988. Shortly thereafter, on May 4, 1988, he sent a four-page letter to the Medical Director of Blue Cross’ claims department setting out his proposed treatment of Blue Cross subscribers for “extended and continuous physiological and psychological addiction to opiates (ICD-9-CM Code 304.1)” with methadone. The letter explained his proposal for treatment and his contentions that this treatment would be more cost-effective for Blue Cross than other treatments. During this time, Dr. Kell was also discussing this reimbursement concept with Evans of Blue Cross. In addition to treating opiate addiction, the Private Clinic also treated patients for chronic pain and other illnesses.

Kell’s proposal was sent to Dr. Thomas Hudson of Blue Cross Professional Affairs for review. In his July 13, 1988 internal memo to Evans, Dr. Hudson describes the potential various coverages available for such treatment, including that provided under nervous and mental benefits for the psychotherapy component, which would pay limited benefits. Laboratory testing and prescriptions for methadone “would be eligible for coverage as a legend drug under those contracts that have major medical and provide benefits for prescription drugs.” This comported with Dr. Kell’s understanding of how the claims should be processed and were being processed by other insurance companies.

Dr. Kell became convinced in late 1988 and thereafter that some patients suffering from opiate dependence could, in fact, be suffering from an endocrine deficiency, a physiological condition. He discussed this concept with an internist cardiologist patient of his who was being treated at The Private Clinic. Also, Dr. Kell became aware of ICD-9-DM code 259.8, endocrine disorders, which he believed “more accurately reflect[ed] the proper diagnosis of some of Private Clinic’s patients.”

By letter of November 24, 1988, to Woodbury, the Division Director of Health Services for State Merit, Dr. Kell explained his theory that opiate use could cause physical damage to a portion of the user’s brain, making methadone treatment compensable under major medical.

In cases he deemed appropriate, Dr. Kell began substituting code 259.8 for code 304.1 on claim forms. In most if not all cases, code 259.8 was shown as the primary diagnosis, with code 304.1 as a secondary diagnosis. He advised Blue Cross representatives, by phone and letter, of his belief regarding this coding.

While Blue Cross’ computers were programmed to recognize and process for payment under nervous and mental coverage code 304.1, opiate dependence, they were not programmed to recognize code 259.8, endocrine disorder, endorphin, for drug dependency, and claims from The Private Clinic so coded were routed by the computer for payment under major medical coverage, which paid 80 percent of the charges, more than coverage under nervous and mental.

Dr. Kell treated patients and was generally reimbursed by Blue Cross until 1990 when Blue Cross began to question some claims. Although inquiries by Kell and Kulas, his office administrator, concerning the holdup in the processing of these claims were met with the response that the claims were “in review,” or required that additional supporting records be submitted, in reality, Blue Cross’ fraud investigator, Galler, had begun an investigation of the claims.

Galler, a high school graduate with some college credits, began working for Blue Cross in October 1989, as a research and documentation specialist, who examined claims that processors felt might have something wrong. After graduating from high school in 1983, and prior to coming with Blue Cross, Galler had worked at Wendy’s, Olan Mills, Crawford Long Hospital as a patient services representative, John Harland printers, Parole Consultant Services, a private investigation firm involved in post-conviction relief for prisoners, and Goldman Investigators, specializing in domestic cases. She apprenticed as a private investigator and obtained her license in 1988.

Galler was promoted from research and documentation specialist to an investigator with fraud investigations, a unit of the Blue Cross legal department, where she worked for Williams. In March 1990, she began working on Kell claims, although she was unable to remember why these claims attracted her attention initially. She worked on one claim for C. M. which she recalled used the endocrine disorder as diagnosis with methadone as treatment. While uncertain, Galler believed this claim was paid. Thereafter, she overheard Williams talking to Jim Ellis, a subscriber, about certain Kell claims where employees had exceeded the coverage available for nervous and mental treatment. Galler also talked to Gavin in medical review, who advised her that medical review was looking at some Kell claims.

As a result of these three events, Galler sent questionnaires to ten of Kell’s patients to verify that the services billed were performed on the dates indicated. In response, Galler received three completed questionnaires from C. M., F. L., and E. L. As Galler testified, the common thread among them was that “their problem was heroin addiction, and that their diagnosis was endocrine disorder. ... I was just curious about the connection. It just seemed funny to me. . . . [The] diagnosis of endocrine disorder didn’t seem to be consistent with the treatment of the patients [i.e., methadone]. ... I was not aware of any, you know, endocrine disorder that the people had.” Galler was provided by Kell with some literature concerning heroin addicts and his theory that there might be an underlying endocrine disorder. She also acknowledged her own lack of familiarity with such disorders. She called a doctor at the Medical Board who looked at some literature and told her he was aware of such a theory and that “some people totally did not believe it, and some people thought there was some validity to it. . . .”

Although Galler never met with any of the respondents, she did speak to them on the phone. During her conversation with E. L., Galler was told by him that an unidentified secretary at The Private Clinic, in response to an inquiry about the endocrine disorder diagnosis, had told him that “oh, this is just something that Dr. Kell came up with to get the claims paid through major medical benefits.” E. L. also acknowledged that he harbored personal animosity toward Dr. Kell and “would be glad to help you hit him where it hurts — in his wallet.”

Around this same time, Kulas began calling Blue Cross and demanding to know why claims were not being processed. Relations deteriorated, litigation began, and, by letter of January 9, 1992, Dr. Kell’s status as a PPA was terminated.

3. We focus first on Blue Cross’ contention that it has presented sufficient evidence to defeat summary judgment regarding its contention that Dr. Kell’s changing of the diagnosis code was done with the intent to defraud Blue Cross.

While Blue Cross is correct that circumstantial evidence may be resorted to when attempting to prove fraud, Eberhardt v. Bennett, 163 Ga. 796, 802 (1) (137 SE 64) (1927), because of the subtle nature of fraud, this does not detract from the requirement that, on summary judgment, evidentiary rules apply. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (2) (a) (397 SE2d 576) (1990).

Hearsay evidence is without probative value and cannot be considered unless it is part of the res gestae. Taylor & Mathis, Inc. v. Doyle, 219 Ga. App. 445 (465 SE2d 484) (1995). Unfortunately for Blue Cross, most of the evidence to which it points as creating factual issues is hearsay and not part of the res gestae, creating no factual issues. Harrison v. Golden, 219 Ga. App. 772, 774 (2) (b) (466 SE2d 890) (1995). Primarily, it is premised on Galler’s investigation. The only concrete evidence produced by Galler in support of her fraud theory is E. L.’s statement to her over the telephone repeating what some unidentified employee of Kell’s allegedly said. This proves nothing because the utterer cannot be identified, located, summoned or cross-examined. Id.; Johnston v. Grand Union Co., 189 Ga. App. 270, 271 (1) (375 SE2d 249) (1988). An unidentified employee’s overheard statement was likewise rejected in Johnston.

Here, in opposition to the suppositions and conjectures of Galler, later adopted by McGhee, a Blue Cross attorney, Dr. Kell submitted his own unequivocal affidavits denying any such intent and pointing to the extensive communications between him and Blue Cross concerning his theory. “£ “In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. When uncontradicted and unimpeached evidence is produced as to the real facts, the inference disappears, and does not create a conflict in the evidence so as to require its submission to a jury.” (Cit.)’ [Cits.]” Taylor & Mathis, supra at 446 (1).

Similarly, regarding the additional allegations of fraud put forward by Blue Cross during discovery, we agree with the trial court’s analysis and disposal of these contentions as meritless and adopt his order as our own.

4. Even if Blue Cross had been able to come forward with some arguably admissible evidence of malicious intent by Dr. Kell, the record does not support Blue Cross’ contention that it relied upon these misrepresentations to its detriment.

We agree with the trial court that the record fails to support Blue Cross’ contention that it justifiably relied on any such misrepresentations. The extensive correspondence between Kell, Blue Cross, and State Merit as to whether his methadone treatment was compensable under nervous and mental only or partly under major medical began as early as March 1988. Further, Blue Cross extensively evaluated claims using code 259.8, refused to pay some, and required reimbursement for some earlier paid.

Summary judgment was appropriate on this basis also. Doe v. Prudential-Bache/A.G. Spanos &c., 222 Ga. App. 169, 176 (5) (474 SE2d 31) (1996).

5. Blue Cross’ contention that this issue is controlled by the decision of a federal court in litigation between Blue Cross of Virginia and Kell cannot be considered for a number of reasons, the primary one being that the copy of that order in the record before us is not certified, as required to prove such a defense. Bradley v. British Fitting &c., 221 Ga. App. 621, 622 (472 SE2d 146) (1996).

Decided July 11, 1997.

McKee & Barge, Patrick W. McKee, James R. Marshall, for appellant.

Alston & Bird, Rebecca M. Lamberth, Kristen P. Mersereau, Bernard Taylor, Michael P. Kenny, for appellees.

6. Finally, Blue Cross contends the trial court erred in finding that it was not a “consumer” entitled to protection of the Georgia Fair Business Practices Act. While, at the time of Kell’s motion for summary judgment, it might have been arguable that Blue Cross fit the then definition of “consumer” under the Act, the legislature’s 1996 amendment of the statute stating that “ ‘[cjonsumer’ means a natural person” negates any such legislative intention. Ga. L. 1996, p. 1032, § 1. This amendment is the law which we apply to this issue and controls. Evans v. Belth, 193 Ga. App. 757, 759 (2) (388 SE2d 914) (1989).

Judgment affirmed.

Beasley and Smith, JJ, concur.

       Dr. Kell was sued individually and as his professional corporation, but the legal distinctions involved are not at issue here and he will be referred to only individually.

       Apparently, although not contained in the voluminous record before us, this allegation regarding one patient was amended to include “patients” as reflected in Kell’s motion for summary judgment.

       The International Classification of Diseases, 9th Revision, Clinical Modification, used by Blue Cross to code diagnoses for consideration of payment. The ICD-9-CM is a classification used in the private health insurance industry as well as Medicaid and Medicare.

       All references to specific patients are made by initials only, since all patient information is privileged and subject to protective orders in the trial court and here.