author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A89A1839.
    E. H. CRUMP COMPANY OF GEORGIA, INC. et al. v. MILLAR.
    (391 SE2d 775)
   McMurray, Presiding Judge.

Plaintiff Francis R. Millar brought suit against defendants E. H. Crump Company of Georgia, Inc. (“Crump”), David D. Henritze, individually and as Crump’s president, and Gary Shertenlieb, individually and as Crump’s senior vice president, seeking damages for breach of contract, fraud, defamation, and tortious interference with contractual relations. With regard to the breach of contract count, plaintiff alleged that Crump was obligated to pay him the amount of $358,994.26, representing compensation earned by plaintiff as an employee of Crump during fiscal year 1987. Defendants answered the complaint, denying any liability to plaintiff. In addition, defendants counterclaimed seeking damages and a permanent injunction on the grounds that plaintiff breached his fiduciary duties and a covenant not to compete “commencing around August of 1987.”

Following discovery, plaintiff moved for partial summary judgment upon the breach of contract count of the complaint, contending he was entitled to be paid the compensation earned during fiscal 1987 as a matter of law. Defendants opposed the motion, asserting plaintiff was not entitled to be compensated for his services because, beginning August 4, 1987, and continuing until October 12, 1987, (when plaintiff’s employment with Crump ended), plaintiff engaged in conduct in violation of his fiduciary duties as an employee of Crump. The trial court granted plaintiff’s summary judgment motion in part, ruling plaintiff was entitled to recover any compensation earned prior to August 4, 1987, whether or not he breached his fiduciary duties after that date. Defendants appeal. Held:

1. Plaintiff’s motion for damages for frivolous appeal is denied.

2. OCGA § 10-6-31 provides: “An agent who shall have discharged his duty shall be entitled to his commission and all necessary expenses incurred about the business of his principal. If he shall have violated his engagement, he shall be entitled to no commission.” Relying on the last sentence of this Code section, defendants take the position that plaintiff forfeited his right to receive any compensation earned during fiscal year 1987 because he breached his fiduciary duty to Crump beginning August 4, 1987. We think this interpretation of OCGA § 10-6-31 is overly broad. By its plain terms, the first sentence of the Code section provides that an agent is entitled to receive compensation when he acts on behalf of his principal. Read in conjunction with the last sentence of the Code section, it is clear that an agent is entitled to compensation during the period of time in which he acts in a fiduciary manner; and he forfeits compensation only during the period of time in which he fails to act in a fiduciary manner. See Vinson v. E. W. Buschman Co., 172 Ga. App. 306, 310 (3), 311 (323 SE2d 204). It follows that the trial court’s award of partial summary judgment to plaintiff was proper.

3. We cannot agree with the conclusion that an issue of fact exists concerning the date of plaintiff’s alleged breach of duty. Defendants have not challenged the August 4, 1987, date. In its order granting plaintiff partial summary judgment, the trial court observed that defendants “specifically” alleged the breach occurred on August 4, 1987. Defendants have not asserted on appeal that the trial court erred in choosing the August 4, 1987, date. The sole contention of defendants is that plaintiff is entitled to no commissions because he breached his fiduciary duty after August 4, 1987. Thus, in effect, defendants concede that any breach by plaintiff occurred after August 4, 1987. Besides, we see no evidence whatsoever that plaintiff breached his fiduciary duties prior to that date.

Judgment affirmed.

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

Beasley, Judge,

dissenting.

I respectfully dissent because the record does not establish without dispute that no act of unfaithfulness, or omission of faithfulness, occurred prior to August 4, 1987, which is the day before plaintiff gave oral notice to his employer that he was terminating his employment and the day his planned new employer memorialized negotiations to that point in a letter to plaintiff. There is evidence, both in that letter and otherwise, that plaintiff planned on taking two employees of Crump with him and had tentatively agreed that their remuneration for the first year would come out of his income. One of these employees was senior marketing account manager. In addition, there is evidence that within a few days of plaintiff’s departure from Crump in mid-October, several sizeable Crump accounts switched their business to plaintiff’s new employer. This raises a reasonable inference that they were solicited before that date, and the date of first solicitation is not shown to have been after August 4.

Appellants did not limit their assertions in the response and brief to plaintiff’s motion for summary judgment below nor in the enumeration of errors or brief in this court. Because there is evidence to support a finding of disloyalty prior to August 4, and the law allows and even considers the pleadings amended to conform to the evidence, the activities of Millar related to compensability prior to August 4 are germane to the summary judgment ruling. OCGA § 9-11-15 (b); McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 514 (250 SE2d 424) (1978).

I do agree that the code section, OCGA § 10-6-31, is applicable. But it alone does not control.

In applying the statutory principles, the contract which governs the relationship between the employer and the employee must be examined. The principle is made a part of every contract of agency. Williams v. Moore-Gaunt Co., 3 Ga. App. 756, 759 (60 SE 372) (1907). But the general principles do not provide the whole answer in every given case.

The several contracts which, taken together as intended, govern the relationship between the parties during the time in question, imply if not express the same principles and add a determinative factor.

The amended compensation schedule which was to govern calendar years 1987 and 1988 provided: “In the event of the Employee’s termination of employment for any reason, . . . earnings and expenses and incentive compensation shall be computed as of the end of the month preceding the month in which termination took place, and employee’s percentage shall be computed thereon and Employee shall be paid all amounts due under Paragraph 1 no later than seventy-five (75) days after the date of termination. . . .”

Paragraph 1 provided for $150,000 base salary for each of the two years plus, “as incentive compensation, 30 percent of annual Net Commission Income of the Company attributable to accounts produced and serviced by Employee” except that the percentage on certain named accounts would be 18 percent. Annual was designated to mean calendar year, and the compensation was to be paid by the end of February of the following year.

A separate document, the “Agreement and Covenants,” contains anti-compete provisions in specific detail, for the period of plaintiff’s employment and for two years thereafter. It acknowledges the employer’s desire to protect its goodwill and it acknowledges the employer’s time and monetary investment in the development of employee’s skills in the business. For the period during his employment, employee agreed not to “use or divulge any confidential business information or trade secrets of the Company . . . relating to customers or prospects . . . and includes, but is not limited to, customer and account lists, methods of operation, renewal information, audits, inspection reports, coverages, order information, records of inception or expiration dates of coverages, and personnel data.”

The “Employment Contract” itself provides: “Employee agrees to devote full time, attention and best efforts in the faithful discharge of such duties and in the development and furtherance of Employer’s business,. . . Employee agrees that, as long as he is employed by Employer, he will not undertake the planning or organizing of any business activity competitive with Employer’s . . . business nor engage in any such activity.”

Discharge for cause is specified to include: “if Employee: (i) performs any act intended to inflict damage on the Employer, (ii) violates any provision of this Agreement, ...”

It also expressly provides: “In order that the Employer shall receive and be able to maintain the benefit of the goodwill which Employer enjoys connected with certain customers and accounts of Employer . . . , Employee agrees that during the term of this Agreement . . . [he will] be bound by all terms and conditions of the Agreement and Covenants Not to Compete. . . .”

Thus the contract package itself specified that the employee must discharge his duties in order to be entitled to his commission. It also, at least impliedly, provided the converse which is expressed in the code section, that he is entitled to no commission if he violates his engagement.

Since plaintiff was required to faithfully discharge his duties, with loyalty solely to this employer, and was subject to termination if he violated any provision of the contract including those related to faithfulness, he could not be entitled to commissions earned from the date the unfaithfulness commenced. Plaintiff has not overcome defendants’ evidence that disloyalty began some time prior to August 4. Plaintiff would only be entitled to what he “earned,” as that term is contemplated by the contract package, while loyal. “When” or at what point he earned them is not determinable by an application of the statute but is found in the contracts. Even though the code provision uses “when” in its title, that refers to the agent’s behavior and not to time of vesting.

Based on the laws governing contract construction, the time up to which plaintiff would be entitled to salary plus commissions would be the time during which the salary and commissions vested (and not divested by such later events as return of premium) up to the date of first breach and regardless of the fact that computation and payment of those commissions and of deferred compensation was to occur months later. Appellants admitted that plaintiff earned his commissions upon clients’ payments of the insurance premium.

The contract did not provide that the employee would forfeit earned commissions for the whole year if he violated the terms of the contract by disloyalty or any other breach. Nor does the code provision. It does not impliedly embrace a “relation back” principle, and such would be greater forfeiture than is statutorily expressed. The law abhors forfeiture unless it is plainly intended by the legislature. Anderson v. Automatic Sprinkler Corp., 147 Ga. App. 236, 239 (2) (248 SE2d 507) (1978), rev’d on other grounds 243 Ga. 867 (257 SE2d 283) (1979); see also Freeman v. Decatur Loan &c. Corp., 140 Ga. App. 682, 684 (2) (231 SE2d 409) (1976). Only a forfeiture of the commissions earned while violating the engagement is clearly provided for, as were the cases in Reisman v. Massey, 84 Ga. App. 796 (67 SE2d 585) (1951), and Rood v. Anchors, 42 Ga. App. 76 (155 SE 65) (1930). If the legislature had meant there would be a forfeiture of commissions earned when the employee was faithfully serving the employer, and up to the commencement of the contract or the engagement, it should have said so. Statutes must be given their plain and logical meaning. See P. L. A. v. State of Ga., 172 Ga. App. 820, 821 (1) (324 SE2d 781) (1984) (non-precedential); see also DeWaters v. City of Atlanta, 169 Ga. App. 41, 45 (2) (311 SE2d 232) (1983).

Williams, supra at 760, stated that it is the right to the benefit earned on “the transaction” which is forfeited. However, when the agency extends to numbers of transactions completed by the agent, as here, the forfeiture is not limited to transactions in which the disloyalty occurred. Vinson v. E. W. Buschman Co., 172 Ga. App. 306, 310 (3) (323 SE2d 204) (1984), approved as legally correct a jury charge which stated that if the jury found the agents were unfaithful, the agents could not be permitted to retain any compensation received “during the period you find them to have been unfaithful. . . .” Thus, under the code, the unfaithfulness need not have occurred within the framework of the transaction which yielded the commission.

An examination of the previous cases in Georgia on the subject of forfeiture of compensation due to disloyalty of agent may be summarized to provide the answer in this case. When the engagement of the agent is for a single transaction, such as the sale of a parcel of real estate or the sale of a business, the entire commission (the compensation) for the engagement is forfeited, as in Williams, supra, Rood, supra, and Reisman, supra. Where the engagement is an employment contract for a period of time and involving an unspecified number of transactions, such as sales, the forfeiture is not of all of the compensation for the entire period of the engagement but rather “any compensation received (in the sense of earned) . . . during the period (the agent has been) unfaithful to the principal,” as in Vinson, supra.

Note that in the former, the compensation is indivisible; there is one form of compensation, a commission, earned when the sale is completed; the loyal agent is entitled to no compensation for working long and hard if he achieves no sale. So the disloyal agent forfeits the entire commission even if he was loyal at some periods of time and in some of his activities in connection with efforts on behalf of the principal.

On the other hand, in the latter, the compensation is divisible, such as salary paid for specific progressive periods of time as every week or every month, or commission paid for specific sales. Since the disloyalty is again related to the nature of the employment and the duties owed, the agent forfeits all of the compensation from the time his disloyalty commenced, whether he was loyal in some duties and with regard to some commission-producing transactions or not. It is the nature of the contract, and its terms, that govern what precisely is forfeited.

Decided February 14, 1990

Rehearing denied March 5, 1990

Smith, Gambrell & Russell, David A. Handley, Thomas E. McCarter, Stack & Rogers, Ronald W. Rogers, for appellant.

Alembik, Fine & Callner, Bruce W. Callner, Kathy L. Portnoy, Keenan G. Loomis, for appellee.

In this case involving an employment contract, the alleged disloyalty apparently commenced a substantial period of time after the engagement was undertaken. The compensation was salary, payable monthly, so that forfeiture is easy to compute once the date disloyalty started is determined. It was also annual “incentive compensation, thirty percent (30%) of annual Net Commission Income of the Company attributable to accounts produced and serviced by Employee; . . .”

It may be argued that this annual benefit was dependent on faithful performance for that year (or period of time employee worked for employer, assuming loyalty as provided by the contract, which in this case would extend two years beyond termination for certain activities). This construction is strengthened by the designation of this benefit as “incentive compensation.” Incentive to do what? To make the particular sale? Or to be loyal and income-producing for a year (or period of time described earlier)? If the latter, commissions could be deemed forfeited if the employee was disloyal during the year.

The decision need not be made in this case, by court or by jury, because the parties had provided a contract answer. If the employment is terminated “for any reason,” commissions earned up to the end of the prior month will be paid. This is what was agreed to be paid, even in the face of express provisions regarding loyalty and regarding disloyalty as a cause for termination, and Crump admitted that Millar had “earned” the commissions when the sales were complete; this would be antagonistic to the concept that commissions were not earned until the year’s end of faithful service. “Incentive” meant incentive to make that sale.

Since defendant has not conclusively shown that no compensation-forfeiting disloyalty occurred before August 4, and there is affirmative evidence that there were unfaithful acts prior to that date, the court was compelled to deny summary judgment to defendant on this aspect of the case.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A89A2031.
    BREAD OF LIFE BAPTIST CHURCH et al. v. PRICE et al.
    (392 SE2d 15)
   Birdsong, Judge.

The sole issue in this appeal is whether the State Court of DeKalb County “erred in denying [appellants’ motion to transfer a contested dispossessory action from the [s]tate [c]ourt . . . while a suit concerning the issue of title to the subject property was pending in the [s]uperior [c]ourt.” Held:

In this record there is no evidence of any prior pending action in superior court regarding title to the property such that the superior court would have exclusive jurisdiction in this case. See OCGA § 44-2-60. There is no evidence whatever in the record that appellant Bread of Life Baptist Church and its members own the subject property, or have any claim to ownership. The record shows only that appellee owners filed a dispossessory action, seeking more than $5,400 in rent, and that on May 10, 1989, appellant church filed an answer to the warrant, stating only: “Defendant is the owner of the subject property and not a tenant and is not subject to a dispossessory warrant.” At the hearing on the dispossessory warrant, appellant Bread of Life Baptist Church, filed a handwritten motion to transfer to superior court stating only that appellants have challenged plaintiffs’ title to the subject property, and had filed an action in superior court seeking to resolve the issue of title, and hence the state court had no jurisdiction in the matter. There is no evidence appellant church and members own the property. Appellants have only asserted they own the property; we cannot consider assertions in appellants’ brief, unsupported in the record, that they had an “oral option” to purchase. In re Holly, 188 Ga. App. 202 (372 SE2d 479); see Turner v. Watson, 139 Ga. App. 648 (229 SE2d 126). In any case, all agreements for the sale of land are required by the statute of frauds to be in writing. OCGA § 13-5-30 (4).

While producing no evidence of ownership to avert the dispossessory action of another, appellants only sought to avoid a hearing on the dispossessory matter in the proper court by asserting they had filed an action alleging ownership, in another court. Nothing in this record shows there is an actual dispute as to ownership, nor indeed that there was another prior pending action in a court with prior jurisdiction.

The defense of lack of landlord-tenant relationship is a proper defense to a dispossessory action; if the defendant so answers, a trial of the issues raised shall be had in a civil court of record. OCGA § 44-7-53; Lopez v. Dlearo, 232 Ga. 339 (206 SE2d 454); Lamb v. Sims, 153 Ga. App. 556 (265 SE2d 879); see Rucker v. Fuller, 247 Ga. 423 (276 SE2d 600). There is no dispute that the DeKalb State Court is a civil court of record; a trial before the judge was held. Evidently no evidence was proved of the lack of a landlord-tenant relationship in this case, and evidently no evidence was shown below justifying a challenge to the ownership of the land so as to put the case in the exclusive jurisdiction of the superior court pursuant to OCGA § 44-2-60, and authorize a transfer. There is no transcript of the proceedings below; we therefore must presume the proceedings were regular and the evidence supported the verdict. Campbell v. Crumpton, 173 Ga. App. 488 (2) (326 SE2d 845); see Williamson v. Williams, 156 Ga. App. 154 (274 SE2d 136). There is nothing in the record to support a conclusion that the dispossessory judgment was incorrect, or that the title to the property was in legal question such as to require transfer of the case to the superior court.

Decided February 16, 1990

Rehearing denied March 5, 1990.

Giddens, Davidson, Mitchell & Eaton, Earl A. Davidson, for appellants.

Lynch & Powell, Gene E. Massafra, for appellees.

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.


author: Beasley, Judge.

text:
    A89A2091.
    CHURCH OF GOD, INC. v. SHAW.
    (391 SE2d 666)
   Beasley, Judge.

Shaw sued the Church of God, Inc., and Hunter, one of its ex-horters, for slander. The church’s motion for summary judgment was denied in a full and helpful order setting out the material undisputed facts, facts deemed to be in dispute, and legal principles relied on.

For purposes of this appeal, the church concedes that Hunter was its agent. The appeal is directed at the court’s finding that summary judgment should be denied because of material factual issues concerning whether the church’s teachings equaled the required express order and direction of the statement and also whether there had been ratification of Hunter’s slander.

1. “ ‘A corporation will not be liable for any slander uttered by an officer, even though he be acting honestly for the benefit of the company and within the scope of his duties, unless it can be proved that the corporation expressly ordered and directed that officer to say those very words: for a slander is the voluntary and tortious act of the speaker.’ [Cits.] ‘As a corporation can act only by or through its agents, and as there can be no agency to slander, it follows that a corporation cannot be guilty of slander; it has not the capacity for committing that wrong. If an officer or an agent be guilty of slander, he is personally liable, and no liability results to the corporation.’ [Cits.]” Behre v. Nat. Cash Register Co., 100 Ga. 213, 214 (1) (27 SE 986) (1897); Ga. Power v. Busbin, 242 Ga. 612, 615 (4) (250 SE2d 442) (1978); Gibson v. Winn-Dixie Atlanta, 183 Ga. App. 192, 194 (2) (358 SE2d 320) (1987); Chambers v. Gap Stores, 180 Ga. App. 233 (348 SE2d 592) (1986); Life Chiropractic College v. Fuchs, 176 Ga. App. 606, 609 (5) (337 SE2d 45) (1985); Mulherin v. Globe Oil Co., 173 Ga. App. 790 (1) (328 SE2d 406) (1985); Burrow v. K-Mart, 166 Ga. App. 284, 286 (1) (304 SE2d 460) (1983); Swift v. S. S. Kresge Co., 159 Ga. App. 571, 572 (2) (284 SE2d 74) (1981); cf. Garren v. Southland Corp., 237 Ga. 484 (228 SE2d 870) (1976).

There was evidence that Hunter was not expressly ordered and directed to make the statement that Shaw was a lesbian; there was no evidence to the contrary. The fact that the church condemned homosexuality as sinful and provided for mandatory disfellowshipping of a minister and for the consideration of disfellowshipping of a member found to be homosexual does not amount to the express order and direction required.

2. The court concluded that there was a material factual question as to whether the church had “ratified” the slanderous statement.

As evidenced by the cases cited above, a corporation lacks the capacity to commit slander and, absent evidence that the corporation expressly directed the saying of the slanderous words, only the sayer of them can be held responsible. This differs from the rule regarding libel, which is that a corporation may commit libel under the usual rules of respondeat superior. Garren, supra at 485; Mulherin, supra at 791.

The cases relied upon by the court regarding “ratification” dealt with acts which were non-tortious and therefore covered by OCGA § 10-6-52. Tortious acts are covered by OCGA §§ 10-6-61 and 51-2-2. Section 51-2-2 is not applicable under Behre and the cases which follow, because in this state a corporation may only be liable for slander expressly ordered or directed. Likewise, Behre limits the operation of OCGA § 10-6-61, by making the corporation responsible in slander situations only for those words spoken “by [the corporation’s] command.”

Shaw relies on dicta in Gilbert v. Crystal Fountain Lodge, 80 Ga. 284, 286 (4 SE 905) (1887) for her position that because a partnership could ratify slander, so could a corporation. That proposition was disapproved in Ozborn v. Woolworth, 106 Ga. 459, 460 (32 SE 581) (1898), which reiterated Behre regarding corporate slander.

A further impediment to Shaw’s ratification argument is the lack of any evidence that the church ratified the statements after becoming aware of them. The only offer is Shaw’s affidavit. It states that after she told Overseer Jones in March 1988 of these statements, “[t]o the best of my knowledge, the Church of God, Inc. allowed their licensed exhorter to continue his tortious conduct.” Nothing in the depositions supports this, leaving plaintiff with nothing of probative value for the summary judgment motion. Dickson v. Dickson, 238 Ga. 672, 674 (4) (235 SE2d 479) (1977); Chambers v. Gap Stores, 180 Ga. App. 233, 234, supra.

Decided February 15, 1990

Rehearing denied March 5, 1990

Wiley S. Obenshain III, N. Staten Bitting, Jr., for appellant.

Samuel A. Fowler, Jr., Robert H. Cofer II, Leonard 0. Tuggle, for appellee.

Judgment reversed.

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


text:
    A90A0056.
    ROSS v. THE STATE.
    (391 SE2d 653)
   Birdsong, Judge.

Alphonso E. Ross appeals his conviction for two counts of aggravated child molestation. On appeal he complains that the trial court advised the jury it would hear the testimony of the two children to “make a determination whether . . . their testimony should be submitted to you. . . . [I]n cases like this, I have to make the first determination whether or not I think that you should be allowed to receive the evidence.”

Appellant complains this statement amounted to a comment on the credibility of the child witnesses and tended to influence the judgment of the jury on that point. Held:

Appellant misrepresents the statement made to the jury by the trial court, by omitting most of it. Having said what we quoted above, the trial court then immediately said: “But I want to make it clear that you, in the last analysis, determine what weight and credit to give to the testimony of any witness, whether it’s the girls or whether it’s some other witness for the prosecution; whether it’s a defendant or a defendant’s witnesses; in other words, you determine what weight and credit in the final analysis to give to a witness’ testimony. But in cases like this, I have to make the first determination whether or not I think that you should be allowed to receive the evidence. But as I say, that’s not a decision as to weight and credit. Weight and credit will be determined by you. You can believe a witness in whole or in part or not believe them. I’ll give you that [c]harge later on, so you don’t have to worry about it right now, but that’s what we’re going to do right now, and I wanted to explain to you why you are being held up a little bit.”

Decided February 7, 1990

Rehearing denied March 5, 1990.

John D. McCord III, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, J. Thomas Morgan, Assistant District Attorneys, for appellee.

Examining the trial court’s comments in toto, we find therefore the trial court did not in the first place inappropriately make a comment on the witnesses’ credibility misleading or influencing the jury. This case is distinguishable from Dean v. State, 168 Ga. App. 172, 174 (308 SE2d 434), cited by appellant. Moreover, if there was any chance for misunderstanding, the trial court removed it by the further instructions given to the jury regarding their function in determining evidentiary weight and witness credibility. Appellant has failed to carry his burden to show error by the record. Sanders v. State, 188 Ga. App. 774 (374 SE2d 542). The explanation itself generally was not error. Harper v. State, 171 Ga. App. 57 (318 SE2d 787).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A89A1791.
    BOATWRIGHT v. CZEREPINSKI.
    (391 SE2d 685)
   Beasley, Judge.

Plaintiff Geneva Boatwright appeals from the denial of her motion for new trial after a judgment was entered on a jury verdict in her favor for $7,944.52. She had sued Bret Czerepinski for injuries she sustained when her automobile collided with his at an intersection in May 1987. Despite the jury verdict in her favor she now contends that the damages awarded were inadequate as a matter of law. She also asserts that the trial court erred in failing to grant her motion in limine as to a seat-belt defense and in charging on such subject, and that instructions on comparative negligence were error.

1. First, the last. Although the evidence regarding plaintiffs negligence was slight, it was sufficient to justify a charge on the issue. Smith v. Lott, 246 Ga. 366, 367 (271 SE2d 463) (1980); Cale v. Jones, 176 Ga. App. 865, 868 (4) (338 SE2d 68) (1985).

2. Plaintiffs evidence of medical expenses incurred as a result of her injuries was twice what the jury awarded. In addition her proof as to loss of wages was over $600. Whether the damages she recovered were inadequate as a matter of law depends upon whether there was negligence on her part to justify a reduction in recovery based upon comparative negligence principles or upon her failure to utilize a seat belt.

Decided March 5, 1990.

C. Darrell Gossett, for appellant.

Dickey, Whelchel, Brown & Readdick, David C. Will, Terry L. Readdick, for appellee.

The principles applied in Katz v. White, 190 Ga. App. 458, 459 (379 SE2d 186) (1989), control. It emphasized the necessity of a showing that the injuries received could have been reduced by the use of a seat belt. In this case, a seat belt was available and not used, and plaintiff received injuries to her head and chest from impacting the windshield and steering wheel. As in Katz, there was no evidence that using the seat belt would have reduced plaintiff’s injuries. The jury could not infer an element of causation from the fact of nonuse and/ or from the nature of the injuries. Cf. Cannon v. Lardner, 185 Ga. App. 194 (1) (363 SE2d 574) (1987), writ vacated as to this issue, 258 Ga. 332 (1) (368 SE2d 730) (1988). The requisite evidence being absent, the issue should not have been submitted to the jury. Katz, supra; Sapp v. Johnson, 184 Ga. App. 603, 606 (3) (362 SE2d 82) (1987); Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 155 (1) (342 SE2d 352) (1986). See also F. A. F. Motor Cars v. Childers, 181 Ga. App. 821, 822 (3) (354 SE2d 6) (1987). A new trial is required, even though the jury might have reduced the recovery upon a finding of comparative negligence attributable to plaintiff’s driving.

3. For the reasons set forth in Division 2 a new trial must be had.

Judgment reversed.

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


author: Cooper, Judge.

text:
    A89A1832.
    LARSON v. SMITH et al.
    (391 SE2d 686)
   Cooper, Judge.

Appellees, former students and patients of Aneewakee, Inc., a youth treatment and educational center, brought a civil action for damages against appellant, the center, its named directors and officers, several agents and employees alleging violations of the Georgia RICO Statute. OCGA § 16-14-1 et seq. Appellant (the remaining defendants not appealing herein) filed a motion for judgment on the pleadings, or in the alternative for summary judgment, asserting that the complaint and record in the case revealed no allegations, evidence or matters of record to show that he or any other defendant had any connection to organized crime or to any organized criminal element. The trial court denied the motion and granted appellant’s petition for an interlocutory appeal to consider whether proof of a nexus with organized crime is required to recover under OCGA § 16-14-1 et seq.

OCGA § 16-14-4 (a) makes it “unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money.” OCGA § 16-14-4 (b) declares it “unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.” Under subsection (c), “[i]t is unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (a) or (b). . . .” While the statute refers to a “pattern of racketeering activity,” there is no mention of a “nexus with organized crime.” In Caldwell v. State, 253 Ga. 400 (1) (321 SE2d 704) (1984), the Supreme Court held that the express terms of the RICO Act applied to an elective office holder seeking reelection. Also, in Georgia v. Shearson Lehman Bros., 188 Ga. App. 120 (2) (372 SE2d 276) (1988), we found that to survive a motion to dismiss for failure to state a claim, it was not necessary that the complaint allege that defendants were “organized criminal elements attempting to take over the legitimate economy of the state.” Thus, we disagree with appellant’s contention that it is necessary to demonstrate a “nexus with organized crime” in order to prevail on a Georgia RICO claim.

The “pattern of racketeering activity” required to be shown by the Georgia statute is defined as engaging in “at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents. . . .” OCGA § 16-14-3 (2). “The Georgia statute requires the interconnectedness not contained in the wording of its federal counterpart. Because of this difference, our legislature intended to and did, by virtue of OCGA §§ 16-14-4 (a) and 16-14-3 (2), [make] subject to the coverage of our RICO statute two crimes, included in the statute as designated predicate acts, which are part of the same scheme, without the added burden of showing that defendant would continue the conduct or had been guilty of like conduct before the incidents charged as a RICO violation. [Cit.]” (Indention omitted.) Dover v. State, 192 Ga. App. 429 (1) (385 SE2d 417) (1989).

Appellees’ complaint alleges the requisite elements of a Georgia RICO violation. Specifically, it alleges that appellants conducted an enterprise, Aneewakee, through a pattern of racketeering activity. The requisite predicate acts for a showing of a “pattern of racketeering activity” under OCGA § 16-14-3 (2) and § 16-14-3 (3) are also set forth in detail in the complaint. The complaint further alleges that these offenses were not committed as an occasional practice, but were a part of a systematic and ongoing pattern over a number of years concealed by a scheme of subterfuge and intimidation. The complaint also charges the defendants with criminally operating Aneewakee for pecuniary gain by fraud and misrepresentation, conversion of funds provided by the patients and the acquisition of real estate with the proceeds. We have held that “[i]t is not the intent of the General Assembly that isolated incidents of misdemeanor conduct be prosecuted under [OCGA § 16-14-4] but only an interrelated pattern of criminal activity, the motive or effect of which is to derive pecuniary gain.” Waldschmidt v. Crosa, 177 Ga. App. 707 (2) (340 SE2d 664) (1986). This complaint alleges precisely the conduct prohibited by the Georgia statute and the trial court acted in accordance with legislative intent by denying appellant’s motion for judgment on the pleadings or for summary judgment.

Decided March 5, 1990.

Gray, Gilliland & Gold, Lori E. Kirschner, Bouhan, Williams & Levy, M. Brice Ladson, for appellant.

B. Randall Blackwood, Patricia S. Edelkind, for appellees.

Judgment affirmed.

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


text:
    A89A2052.
    McCONNELL v. WINN-DIXIE ATLANTA, INC.
    (391 SE2d 785)
   Beasley, Judge.

Plaintiff McConnell appeals from the grant of defendant WinnDixie’s motion for summary judgment in a slip and fall case. The complaint alleged that defendant was negligent in creating a hazardous condition on its premises.

Plaintiff deposed that he went into defendant’s store, purchased groceries and left. Realizing that he had not received coupon credit he returned, got his credit from the cashier, and began to leave. He walked up to the doors, tried to stop to allow the doors to open, slipped — his “feet shot out from under” him — and fell, sustaining what he noted was the worst fall he ever had.

Plaintiff answered the question, “there wasn’t any puddle of water,” by replying “No, there wasn’t a thing in the world. It was just the floor was slick, slick as glass.” Plaintiff admitted that the doors were the same ones he used entering, leaving and re-entering. He went home, but because he felt bad and on the advice of his wife, he returned to the store and reported his fall to the manager. They both went to the spot where he fell, he pointed it out and, according to plaintiff, the store manager made some notes and then exclaimed: “We better get away from here before you and I both fall.”

In a later affidavit, plaintiff stated: “I slipped on some wax or other substance on the floor which had become frozen or made slick by the cold air coming in through the electronic doors of the store.” He also brought out that floor mats which normally were placed at the entrance were absent. A weather report for the day recorded the temperature as 34 degrees Fahrenheit and the wind at 16 kilometers per hour at the airport.

Defendant’s store manager testified that he had examined the floor where the incident allegedly occurred fifteen minutes before the fall. It was clean, dry and safe. After the fall the area was free of any foreign substances or debris that would make it unsafe. He denied making the statement attributed to him by plaintiff.

Two witnesses for defendant testified that the wax used on the floor was a quick drying, anti-slip type. One witness, as an expert, stated that the area where the wax was applied would be considered “a safe walkway surface,” and that the slip-resistant quality of the wax would not be affected by the cold or wind described.

Plaintiff challenges the court’s concluding that defendant showed an absence of negligence on its part. He argues there remained genuine issues of material fact which could only be resolved by a jury, setting out the three elements for premises liability: 1) a defect; 2) defendant’s actual or constructive knowledge of it; 3) lack of knowledge on the part of plaintiff. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

Defendant’s proof eliminated wax as the cause of plaintiff’s fall. Plaintiff urges that the presence of some other substance was not foreclosed as a matter of law. However, defendant has shown that plaintiff cannot prove what, if anything foreign, was present. Where a party’s testimony in his own behalf is contradictory, vague or equivocal then, absent reasonable explanation, his testimony is construed unfavorably to him and in favor of the opposing party. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986). Further, defendant has shown that plaintiff cannot prove that any of its employees had notice of some foreign substance. There is a conclusive absence of any basis for constructive knowledge because there is nothing to show that anything else was on the floor for a sufficient time to impute knowledge to defendant. Pritchard v. Wilson, 170 Ga. App. 313 (1) (316 SE2d 604) (1984); Jiffy Store v. Bishop, 190 Ga. App. 716 (379 SE2d 602) (1989). Important as well is that plaintiff had equal or superior knowledge of the floor’s condition and the absence of mats, since he traversed it three times before he fell.

Decided March 5, 1990.

Vincent, Chorey, Taylor & Fell, Michael A. Cole, for appellant.

Fain, Major & Wiley, Donald M. Fain, Gene A. Major, Richard Kopelman, for appellee.

Controlling are such as Veazey v. F. W. Woolworth Co., 191 Ga. App. 601 (382 SE2d 411) (1989); Gross v. Frank’s Warehouse Foods, 192 Ga. App. 539 (385 SE2d 688) (1989); Dyer v. Joe Rigatoni’s of Atlanta, 191 Ga. App. 473 (382 SE2d 193) (1989); Rossano v. American Legion Post, 189 Ga. App. 610 (376 SE2d 698) (1988); Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257 (366 SE2d 785) (1988); Rush v. Food Giant, 183 Ga. App. 388 (358 SE2d 919) (1987); Alterman Foods v. Ligon, supra.

There is no merit in plaintiff’s contention that the statement of the store manager was an admission sufficient to carry the question of fault to a jury. See Brooks v. Kroger Co., 194 Ga. App. 215 (390 SE2d 280) (1990).

Judgment affirmed.

Carley, C. J., concurs. McMurray, P. J., concurs in the judgment only.


text:
    A89A2132.
    FONG v. DEPARTMENT OF TRANSPORTATION.
    (391 SE2d 704)
   Beasley, Judge.

Fong appeals from a judgment entered on a jury verdict which awarded him $5,885.31 for the taking of his leasehold interest in certain property condemned by the Department of Transportation.

1. Fong asserts error in the failure to grant the motion to sever the trial. The motion, although it mentioned Fong, was filed on behalf of Clark Brothers Construction Company, the landowner. Fong has no basis to assign error on the ruling denying the motion. Besides, the failure to sever the trial was not error. Dept. of Transp. v. McLaughlin, 163 Ga. App. 1, 3 (1) (292 SE2d 435) (1982); Dept. of Transp. v. Olshan, 237 Ga. 213, 216 (227 SE2d 349) (1976).

2. The second enumeration of error complains of the failure to give certain requests to charge dealing with damages to the business resulting from the condemnation. The charges treated total loss of business, relocation or inability to relocate and uniqueness. The evidence did not show that there was no other suitable location for relocation or even that any effort to relocate was made by Fong.

The trial court’s charge, while not as extensive as the requests, instructed fully and fairly on business loss insofar as it was raised and covered substantially the same ground as those portions of the requests which were adjusted to the evidence. It was not error to refuse to give the charges in the language requested. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 18 (3) (195 SE2d 417) (1973); Dept. of Transp. v. Delta Machine &c. Co., 157 Ga. App. 423, 426 (3) (278 SE2d 73) (1981).

Decided March 5, 1990.

Harrison & Harrison, G. Hughel Harrison, for appellant.

Cheeley & Chandler, Joseph E. Cheeley, Jr., Richard B. Chandler, Jr., Michael J. Bowers, Attorney General, Roland F. Matson, Senior Assistant Attorney General, for appellee.

3. Fong’s son testified that restaurant equipment was purchased in 1984, 1985, 1986, and 1987 for a total of $49,000 and sold in June 1987, eleven months after the date of DOT’s acquisition, for $4,500. The trial judge granted the condemnor’s motion to strike the testimony because sale price was not probative of the value of the personal property. DOT points out that, in addition, this evidence did not show value at the time of condemnation.

The evidence was properly stricken. Dept. of Transp. v. Fitzpatrick, 184 Ga. App. 249, 250 (3) (361 SE2d 241) (1987). See MARTA v. Dendy, 250 Ga. 538, 541-543 (299 SE2d 876) (1983).

Judgment affirmed.

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


text:
    A89A2142, A89A2143.
    AMERICAN ALUMINUM PRODUCTS COMPANY, INC. v. BINSWANGER GLASS COMPANY; and vice versa.
    (391 SE2d 688)
   Beasley, Judge.

This appeal and cross-appeal involve a contract dispute about skylights at two commercial sites.

Binswanger Glass Company subcontracted with American Aluminum Products Company, Inc. (AAPCO) to furnish and install a metal framed entry skylight at Cumberland Center Office Building in Cobb County. Binswanger also subcontracted with AAPCO to manufacture and install metal frames for skylights at the Northern Telecom Plaza in Nashville, Tennessee.

AAPCO sued Binswanger alleging that it was indebted to AAPCO, on open accounts, $10,055 for manufacture and installation of the Cumberland skylight and $17,110 for the Northern Telecom skylights. AAPCO alleged that both debts were liquidated, the Cumberland one due and payable on July 3, 1985, and the Northern Telecom one on May 15, 1985. AAPCO asked for 18 percent interest per annum from those dates and reasonable attorney fees for bad faith and stubborn litigiousness.

Binswanger counterclaimed. As to Cumberland, it contended that under the contract as set forth in the purchase orders, drawings, and specifications, AAPCO’s work was to be leak-free and that it failed to properly perform and complete its work. Binswanger alleged that leaks resulted from incomplete and defective work; it had incurred costs to complete, test, and correct AAPCO’s work; and it was backcharged by the general contractor for repair work due to the leaking water falling on the terrazzo. It maintained that the remedial measures cost $13,921.03, exceeding the balance owed on the contract by $3,866.03 and entitling it to a set-off of $10,055. It denied that AAPCO was entitled to any sum under the contract and sought an affirmative recovery from AAPCO of $3,866.03 plus interest at 18 percent per annum.

Binswanger further contended that AAPCO failed to pay for $3,100.04 in materials purchased from it and demanded that amount plus interest for an open account or, in the alternative, for quantum meruit.

Regarding the Northern Telecom project, Binswanger alleged that under this contract also, as set forth in the purchase orders, specifications, and drawings, AAPCO’s work was to be leak-free, and that AAPCO failed to properly perform and complete its work and failed to furnish the required written warranty. Binswanger maintained that the skylights leaked, causing it to incur costs to test, correct and complete the work. It claimed it was backcharged by the general contractor for repairs due to the leaks, repairs to the roof, and additional work caused by AAPCO’s furnishing of improperly fitting skylight frames. These costs and backcharges allegedly totalled $55,755.33, exceeding the balance in the contract by $38,645.33. Thus, Binswanger claimed entitlement to a $17,110 set-off, zero for AAPCO and affirmative recovery on the Northern Telecom project for $38,645.33 plus interest at 18 percent per annum.

Binswanger further contended that on both projects, AAPCO breached the warranties that the materials and work would conform to the drawings and specifications, would be merchantable, of good material and workmanship, free from defects and fit for the intended purposes; AAPCO was liable for the costs asserted in the counterclaim under the indemnification provisions of the purchase orders; and AAPCO was liable for the costs claimed due to its negligent performance of its work, including unsatisfactory, improper, defective, and incomplete performance.

It asked for a total affirmative recovery on the counterclaim of $45,611.40 plus 18 percent interest, plus the set-off.

Following a lengthy bench trial, the court issued its findings of fact and conclusions of law. It specified that as to the Northern Telecom project, AAPCO was entitled to $17,110 on its claim and Binswanger to $32,762.65 on its counterclaim, as to the Cumberland project, AAPCO was entitled to $10,055 on its claim and Binswanger to $16,156.98 on its counterclaim. The court awarded AAPCO a total of $27,165 and Binswanger a total of $48,919.63. It also concluded that certain damages, namely $3,748.06 in man hours and $3,912.67 in materials provided by Binswanger on the Northern Telecom job and $3,100.04 in materials purchased by AAPCO from Binswanger on the Cumberland job, were liquidated, entitling Binswanger to 7 percent interest from November 4, 1985, on these amounts.

AAPCO’s appeal challenges eight of the court’s specific findings and the court’s admission of certain evidence. Binswanger’s cross-appeal contends that pursuant to OCGA § 7-4-16 it was entitled to interest at 18 percent per annum rather than 7 percent per annum on the liquidated amounts.

Case No. A89A2142

1. “A trial judge sitting without a jury is entitled to have his judgment considered as a verdict by a jury, and if there is any evidence to support the finding, it should be affirmed. Also the evidence must be construed most strongly in favor of the prevailing party. [Cit.]” Anchor Sign Co. v. ITT Terryphone Corp., 138 Ga. App. 742, 743 (2) (227 SE2d 492) (1976).

AAPCO contends that the trial court erred in finding that as to both projects Binswanger’s purchase orders constituted the contract between the parties. Its argument in this regard, is focused solely on the Northern Telecom project. Any such contention about the Cumberland contract is considered abandoned. Court of Appeals Rule 15 (c) (2); Melton v. Gilleland & Sons, 176 Ga. App. 390 (1) (336 SE2d 315) (1985).

There were two purchase orders. The first, dated October 29, 1984, called for “skylites per plans and specs” based on shop drawings to be submitted within two weeks and approved die drawings submitted by AAPCO. The second, dated March 13,1985, called for AAPCO to furnish labor to install the “skylite metal frames” and all “flashings and brake shapes” per AAPCO’s approved shop drawings.

AAPCO’s position is that the first purchase order shows that the contract to manufacture and ship the skylights was a sale of goods covered by the Uniform Commercial Code so that the court should have considered the oral agreement and understanding of the parties that Binswanger wanted skylights like certain “Fisher drawings.” AAPCO concedes that the second purchase order is not governed by the UCC. It argues that it had no substantial deviations from the Fisher drawings, that Binswanger’s counterclaim was based on specifications that AAPCO was not furnished, that in light of AAPCO’s initial proposal ambiguity arose in the first purchase order because of the use of the terms “plans” and “specs,” and that to incorporate the “specs” as contended by Binswanger would give the contract a totally unreasonable and unconscionable construction.

If the two purchase orders constitute but a single contract between the parties which involves furnishing both labor and materials, the UCC would not apply. The “UCC applies only to certain contracts for the sale of goods. [OCGA § 11-2-102.]” Dixie Lime &c. Co. v. Wiggins Scale Co., 144 Ga. App. 145 (2) (240 SE2d 323) (1977).

We assume for the moment the UCC’s inapplicability and apply instead common law contract theory. There is evidence to support the findings that inasmuch as Binswanger’s October 29 purchase order contained terms at variance with AAPCO’s initial proposal, the purchase order was a counteroffer, see Frey v. Friendly Motors, 129 Ga. App. 636, 637 (200 SE2d 467) (1973), which AAPCO .accepted by beginning performance. See Classic Restorations v. Bean, 155 Ga. App. 694, 699 (5) (272 SE2d 557) (1980). There was evidence that following receipt of the purchase order, AAPCO lodged no objection to its terms, proceeded to manufacture the metal frames, and sent a supervisor to the job site. Using this analysis, the trial court did not err in finding that Binswanger’s purchase orders (including the plans and specs), rather than AAPCO’s proposal (and the Fisher drawings), constituted the contract between the parties.

Examining the first purchase order in light of the UCC, on the other hand does not aid AAPCO. “Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such cases the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of [the Uniform Commercial Code].” OCGA § 11-2-207 (3).

There was evidence that in both AAPCO’s initial proposal and the October 29 purchase order referencing the “plans and specs” was the requirement that the skylights be water-tight or leak free. Further, a UCC analysis would not incorporate the Fisher drawings. Evidence shows that any reference to such drawings was not part of the parties’ contract but at most were merely preliminary statements and part of the negotiations. Whether or not the drawings were included in the contract, AAPCO was not relieved from complying with the expressly incorporated plans and specifications.

As to AAPCO’s ambiguity argument, the trial court could con-elude that the terms of the contract were not ambiguous, which was a matter of law, see Hearn v. Old Dominion Freight Lines, 172 Ga. App. 658, 659 (1) (324 SE2d 517) (1984), and that they had the meaning ascribed by Binswanger.

There is no merit to AAPCO’s bare assertion of unreasonableness and unconscionability.

2. The trial court did not err in finding that at AAPCO’s request, Binswanger provided $3,748.06 in man hours to assist in installing the Northern Telecom skylights. AAPCO argues that such time was not on its “shop drawings.”

There was evidence that AAPCO’s field superintendent was authorized to obtain assistance from Binswanger, that Binswanger did supply men to assist, that records of the labor were kept, that the men were paid at the established rate on the basis of such records, and that the labor was expended as part of AAPCO’s promised performance.

3. AAPCO contends that the trial court erred in finding that at AAPCO’s request, Binswanger provided $3,912.67 in materials to complete installation of the Northern Telecom skylights. It asserts that the evidence supporting the claim was invoices for sealant which AAPCO’s proposal and shop drawings excluded.

Contrarily there was evidence that the watertight skylights, AAPCO’s contractual responsibility, required sealant to prevent leaks.

4. AAPCO contends the court erred in finding that the Northern Telecom skylights were defective because the skylights were just like the Fisher drawings and thus Binswanger got what it bargained for. This ignores the evidence that the Fisher drawings were not part of the contract, and more significantly, the evidence that the skylights leaked because of improper installation by AAPCO.

5. AAPCO contends that the trial court erred in finding that it did not take adequate and reasonable steps to correct leaks on the Northern Telecom skylight. It asserts that Binswanger’s position was that the skylights were going to leak until the gutters were enlarged and that this was a design flaw not caused by AAPCO; that the work conformed to the “Fisher drawings” which had been furnished by Binswanger; that the implied warranty of fitness for a particular purpose under OCGA § 11-2-317 does not apply; that the Fisher drawings and shop drawings were technical specifications and as such, under the UCC, displace general warranty language; that Binswanger had to prove the defective quality of the goods; and that the proper measure of damages was governed by OCGA § 11-2-714 (2).

Contrary to AAPCO’s assertion, there was evidence that the water damage was being caused not only by overflow from undersized gutters but also from lack of or improper sealing of the skylights. Moreover, the court’s order noted that the design defect in the gutters was accepted by Binswanger.

The argument that the work conformed to the Fisher drawings does not aid AAPCO because the court was authorized to find that such drawings were not part of the parties’ contract. See Division 1, supra.

AAPCO’s UCC argument does not stand up. Even if the UCC applies, Division 1, supra, there was evidence that the goods were not merchantable under OCGA § 11-2-314 (2) (c).

AAPCO’s president testified that neither the Fisher drawings nor the shop drawings were specifications so AAPCO’s claim of warranty displacement by the drawings fails.

There was evidence to support the finding that Binswanger carried the burden of proving the defectiveness of the goods. See Division 4, supra.

We do not consider AAPCO’s concluding statements regarding the measure of damages under the UCC inasmuch as AAPCO may not expand its enumeration of error by argument in brief. See Central Nat. Ins. Co. v. Dixon, 188 Ga. App. 680, 681 (2) (373 SE2d 849) (1988).

6. AAPCO cites error in the court’s finding that AAPCO was responsible for paying $5,459.60 for the services of Curtain Wall Design Consultants, which performed water tests on the skylights, because no sealing was required in the shop or Fisher drawings.

There was evidence, however, that sealants were part of AAPCO’s contractual responsibility. AAPCO’s own superintendent admitted that AAPCO was responsible for sealing the product and making it watertight.

7. AAPCO contends that the trial court erred in finding that the reasonable cost of repair of the Northern Telecom skylights was $19,642.32. It again asserts that the lack of sealant which was responsible for the majority of the leakage was not its responsibility and further that overhead, supervision, and profit were improperly added to the actual cost of repair.

The sealant argument is without merit. See Division 6, supra.

There was evidence to support the awarded amount including testimony about the number of necessary and reasonable man hours spent to correct AAPCO’s work, daily time reports, the rate of labor, and the overhead and profit. Overhead and profit were properly considered in assessing the damages here. See United States Fid. &c. Co. v. Blankenship Plumbing Co., 153 Ga. App. 335 (1) (265 SE2d 66) (1980); Williams v. Kerns, 153 Ga. App. 259, 260 (1) (265 SE2d 605) (1980).

8. Next attacked is the court’s finding that Binswanger incurred costs of $13,056.94 to repair, correct, complete, finish, and test AAPCO’s work at the Cumberland project. It argues that Binswanger’s claim improperly included costs of overhead, profit, and a “supervision and water test,” that expected profit and overhead should be recoverable from the general contractor rather than a subcontractor, and that Binswanger failed to establish lost profits.

The overhead and profit argument is meritless. See Division 7, supra. AAPCO does not elaborate upon or pursue its challenge to the “supervision and water test,” so we do not consider it. Court of Appeals Rule 15 (c) (2); Melton v. Gilleland & Sons, supra at 390 (1). Finally, AAPCO misdirects its “lost profits” contention. In its calculations of damages, Binswanger appropriately took into consideration profit on work performed on behalf of AAPCO. See Williams v. Kerns, supra.

9. AAPCO contends the trial court erred in admitting into evidence Binswanger’s written specifications regarding the Northern Telecom project. It argues not only that the contract was ambiguous because of use of the terms “plans” and “specs” and that the specifications were not part of the contract, but also that if they had been, it would have made the contract unreasonable and unconscionable.

We have already determined that there was evidence that the contract was not ambiguous and incorporated the specifications. The specifications were thus relevant evidence.

In any event, “ [admissibility of evidence is a matter which rests largely within the sound discretion of the trial court, and if an item of evidence has a tendency to help establish a fact in issue, that is sufficient to make it relevant and admissible. [Cit.] . . .” Lewis v. State, 158 Ga. App. 586, 587 (1) (281 SE2d 331) (1981). Furthermore, “[w]here evidence is heard by the judge alone and without the intervention of a jury, it will be presumed that the judge considered only legal and admissible evidence, unless the record clearly indicates that the contrary is true. [Cit.]” Barger v. Barger, 238 Ga. 334, 335 (9) (232 SE2d 567) (1977).

AAPCO’s bare conclusion of unreasonableness and unconscionability need not be addressed. Court of Appeals Rule 15 (c) (2); Melton v. Gilleland & Sons, supra.

10. AAPCO cites an abuse of discretion in admitting into evidence the deposition of Miller, Binswanger’s project manager on the Cumberland project, because Miller was available to testify at trial.

The trial was conducted September 6 through September 8,1988. Miller expected to be out of state for a new employer until approximately September 24. OCGA § 9-11-32 (3) (B) provides that a witness’ deposition, whether or not a party, may be used by any party for any purpose if the court finds that the witness is out of the county, unless it appears that the absence of the witness was procured by a party offering the deposition. There was no such evidence.

Even Miller’s availability would not preclude use of the deposition. OCGA § 9-11-32 (a) (4). The circumstances surrounding the taking of the deposition show that the notice was not unreasonable and that there was no abuse in the court’s consideration of the testimony. Moreover, AAPCO does not show how it was harmed by admission of the deposition. An appellant must demonstrate harm as well as error. Baldwin v. Walker, 143 Ga. App. 382, 384 (2) (238 SE2d 695) (1977).

Case No. A89A2143

“The owner of a commercial account may charge interest on that portion of a commercial account which has been due and payable, [i.e., the date a statement of the account is rendered to the obligor unless otherwise provided in writing signed by the obligor,] for 30 days or more at a rate not in excess of 1 1/2 percent per month calculated on the amount owed from the date upon which it became due and payable until paid. ‘Commercial account’ means an obligation for the payment of money arising out of a transaction to sell or furnish, or the sale of, or furnishing of, goods or services other than a ‘retail installment transaction’ as defined in paragraph (10) of subsection (a) of Code Section 10-1-2.” OCGA § 7-4-16.

The three items of the counterclaim which the court found to be liquidated and for which it allowed interest were attributable to labor and materials. These obligations qualified as “commercial” accounts. Binswanger requested interest at the rate of 18 percent per annum on damages stemming from both projects in its counterclaim and in the pretrial order.

As to the Cumberland project, the record discloses without dispute invoices to AAPCO for materials purchased by AAPCO from Binswanger in the total amount of $3,100.04, as found by the trial court. In fact, AAPCO concedes that such evidence “might be construed as a statement within the meaning of OCGA § 7-4-16.” This due and payable liquidated debt, see Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576, 579 (2) (373 SE2d 758) (1988), was subject to interest at the requested commercial rate of 18 percent per annum and the trial court erred in failing to award such interest on this amount. The judgment must be modified accordingly.

The trial court was correct however, in not awarding the commercial rate of interest for the $3,748.06 in man hours and the $3,912.67 in materials on the Northern Telecom project. While there is evidence supporting the amounts awarded, there was a dispute about whether or not the material, which was largely for sealant supplies and invoiced not to AAPCO but to Binswanger, and part or all of the labor expended, was utilized on behalf of AAPCO’s contractual performance. Aside from the question of adequate statement of account regarding these charges to AAPCO, the debts were not liquidated because it was not certain how much was due Binswanger from AAPCO. See Typo-Repro Sues., supra at 579 (2). Even though the debts were not liquidated as the court found, the court was authorized to award 7 percent interest rate on these sums. Id. at 579 (2)-580.

Decided March 5, 1990.

Bannister & Black, Charles C. Black, for appellant.

Stokes, Shapiro, Fussell & Genberg, Ronald J. Garber, for appellee.

Judgment affirmed in Case No. A89A2142. Judgment affirmed in part and reversed in part with direction in Case No. A89A2143.

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


text:
    A89A2205.
    HUNTER v. THE STATE.
    (391 SE2d 695)
   Beasley, Judge.

Following the denial of his amended motion for new trial, Kenneth Hunter appeals his conviction and sentence for child molestation, OCGA § 16-6-4 (a).

The evidence is construed so as to uphold the verdict. Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985). McDaniel took her four-year-old granddaughter with her to her boyfriend Hunter’s residence to spend a weekend. After the child was returned to her mother at the end of the weekend, the mother bathed the child and noticed a redness in the child’s vaginal area that had not been there before. When asked about it, the child stated, “Kenny hurt me.” The mother and the child’s stepfather took the little girl to the hospital. The examining physician found a mild degree of redness around the vagina which could have been the result of fondling by a finger or some such object but was unlikely to have resulted from a fall, as was suggested by the defense.

The following morning the child was taken to the county Department of Family & Children’s Services and was interviewed by a caseworker. During the videotaped interview the child related that while her grandmother was asleep, Hunter had taken off the child’s panties, put her on the floor, and touched her on the front of her bottom with his nails.

1. The first question is whether the court abused its discretion in ruling that the child, who had no conception of an oath, was competent to testify and, based on this ruling, allowing into evidence the videotape of the interview with the child. Whether the hearsay testimony had sufficient indicia of reliability is also raised. Appellant invokes his right to confrontation under the Federal, but not the State Constitution.

“ ‘In Smith v. State, 247 Ga. 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, not 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.’ ” Westbrook v. State, 186 Ga. App. 493 (1) (368 SE2d 131) (1988).

This court has applied the standard thusly: “ ‘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 u. 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), supra (non-precedential). See also In the Interest of J. E. L., 189 Ga. App. 203, 204 (1) (375 SE2d 490) (1988). (OCGA § 24-9-5 (b) effective April 19, 1989, is not applicable to this case.)

The court extensively questioned and observed the nearly-five-year-old girl. Although not very verbal during the court’s examination, the child agreed that it was wrong to tell a lie, that she would tell the court the truth, that she went to church, that Jesus would be upset with her if she told a lie, and that she had told the truth to the caseworker during the videotaped interview. The court also viewed the videotape, as we have done. The record supports the court’s conclusion that the child was legally competent as a witness.

The trial court also made a specific determination that the testimony on the videotape was reliable. Such factors as atmosphere, circumstances, spontaneity, and demeanor should be considered in determining reliability. Ortiz v. State, 188 Ga. App. 532, 535 (3) (374 SE2d 92) (1988); Newberry v. State, 184 Ga. App. 356 (361 SE2d 499) (1987). The court considered all of these factors including the procedure followed in making the videotape, and the record supports the trial court’s determination of reliability.

2. Appellant contends that the manner in which the trial court conducted the competency hearing was improper in that the court sat on the floor with the child, played with her, and gave her a soft drink. He further asserts that the manner in which the court conducted itself during the testimony of the child before the jury gave it particular emphasis and intimated to the jury the court’s opinion concerning the truth of the child’s statements in violation of OCGA § 17-8-57.

Appellant did not object to the manner in which the court conducted its competency examination and cannot now complain. See Keasler v. State, 165 Ga. App. 561 (1) (301 SE2d 915) (1983). Nor does appellant indicate how he was harmed by the court’s attempt to put the child at ease to determine competency, outside the presence of the jury. An appellant must show not only alleged error but also ensuing harm. Bowen v. State, 170 Ga. App. 49, 50 (1) (316 SE2d 33) (1984).

Likewise appellant failed to object to the court’s conduct during the child’s testimony before the jury. He did not move for mistrial on that basis either. Review is precluded. Castillo v. State, 178 Ga. App. 312 (3) (342 SE2d 782) (1986). Moreover, immediately before the child testified, the court explained that the jury was not to take the court’s solicitousness towards the child during her testimony as any indication of court sympathy for the child or of any attempt to cause her to be viewed differently than any other witness.

3. Appellant contends the trial court erred in failing to direct an acquittal because the evidence was wholly insufficient to convince any rational trier of fact of his guilt beyond a reasonable doubt. He maintains the videotaped interview was uncorroborated hearsay and that the circumstantial evidence did not exclude any other reasonable hypothesis and therefore could not corroborate the videotape to support the conviction.

The videotape was reliable and admissible under OCGA § 24-3-16. See Division 1, supra. See also Ware v. State, 191 Ga. App. 896 (2) (383 SE2d 368) (1989). The child was available and testified giving direct victim evidence. Even if the State’s case had relied solely on circumstantial evidence, such evidence had to exclude every reasonable hypothesis except the guilt of the accused, but it did not have to remove every possibility of his innocence. Jerdine v. State, 137 Ga. App. 811, 812 (1) (224 SE2d 803) (1976).

The direct and circumstantial evidence was sufficient to uphold the jury’s determination of guilt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Defendant was not entitled to a directed verdict of acquittal.

Judgment affirmed.

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

Decided March 5, 1990.

Steve Bennett, for appellant.

Stephen F. Lanier, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.


text:
    A89A2248.
    HUNNICUTT v. THE STATE.
    (391 SE2d 790)
   Birdsong, Judge.

Robert Hunnicutt appeals his conviction of aggravated child molestation for committing oral sodomy on a child under the age of 14 years, his two-and-one-half-year-old natural daughter. Among the errors alleged, he contends the trial court erred by permitting witnesses to testify under the Child Hearsay Statute (OCGA § 24-3-16). Held:

Hunnicutt’s second, third, and fifth enumerations of error contend the trial court erred by permitting witnesses to testify about statements his daughter made about the sexual act he allegedly committed. Hunnicutt contends the testimony was inadmissible under OCGA § 24-3-16 because the child was not available at the time the witnesses testified, since the trial court did not determine the child’s competency to testify, and the trial court did not specifically determine whether the statement had sufficient indicia of reliability.

We first direct our attention to Hunnicutt’s contention that the victim was not available to testify because the trial court did not determine she was not competent to testify under OCGA § 24-9-5, since a decision on that issue may render moot the other issues on appeal. Of course, a child “available to testify” in OCGA § 24-3-16 also means one competent to testify under OCGA § 24-9-5. In the Interest of K. T. B., 192 Ga. App. 132, 133-134 (384 SE2d 231); Ward v. State, 186 Ga. App. 503 (368 SE2d 139). Further, for offenses occurring before April 19, 1989, including child molestation, a child incompetent as a witness is not available to testify and any out-of-court statements are not rendered admissible by OCGA § 24-3-16. In the Interest of K. T. B., supra; In the Interest of A. H., 192 Ga. App. 692, 693 (385 SE2d 776).

The record shows Hunnicutt objected to the child’s testimony because of incompetency, but the trial court interpreted OCGA § 24-3-16 not to require such a ruling, and specifically refused to rule. In these circumstances, as the testimony under the Child Hearsay Act was the only evidence tending to prove Hunnicutt committed the offense, we must remand the case to the trial court for a ruling on the child’s competence, hence availability to testify. In the Interest of A. H., supra; see Moore v. State, 187 Ga. App. 387, 393 (370 SE2d 517).

Decided March 5, 1990.

Denmark Groover, Jr., for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

Case remanded with direction.

Deen, P. J., and Cooper, J., concur.


text:
    A89A2314.
    WEBB et al. v. HANCOCK PLUMBING & HEATING COMPANY, INC.
    (391 SE2d 697)
   Beasley, Judge.

Defendants Webb, d/b/a/ W. W. Construction Company, appeal from a judgment entered for plaintiff Hancock Plumbing after a bench trial.

Hancock was the general contractor with the federal government for the construction of high temperature water lines. It subcontracted with W. W. to perform a part of the concrete work, including ditches, bottoms, walls and tops for the water lines. The initial agreement reduced to writing was that W. W. was to receive $140,000 and a backhoe which Hancock purchased to be used on the project. Later Hancock contracted with W. W. to do the remaining walls and bottoms, with compensation to be paid on a per foot basis. The walls were $12 per foot and the bottoms and ditch were $15. Because the work was under government contract, it was subject to approval by government inspectors.

As the project progressed, W. W. drew a flat amount per week regardless of the work actually performed. As a result, W. W. was overdrawn. Original work plus the correction of certain defects unacceptable to the Corps of Engineers remained to be done.

On October 9, 1987, Hancock discovered that W. W. had moved all its equipment from the job site. Also missing was the backhoe which W. W. had been using on the job but had diverted to a personal mission. Although the Corps of Engineers accepted the essential water piping portion of the work, it refused to approve the concrete work. Hancock requested W. W. to complete the work and correct the deficiencies but, according to Hancock’s witnesses, W. W. refused. Hancock was required to expend additional funds to finish the job.

Hancock sued to recover possession of the backhoe and amended its complaint to seek recovery of the cost to complete construction. W. W. answered and counterclaimed for extra on-job work performed.

Hancock’s evidence was that W. W. left the job before completion and failed to perform to contract specifications. W. W. countered that the work had been satisfactorily completed and W. W. was entitled to possession of the backhoe under the contract terms. Hancock’s bookkeeper detailed the expenses of completion. The original amount owed W. W. for the contract work plus extras was $391,565.50. Hancock spent an additional $73,660.57 to obtain approval of the inspectors, for a total cost of $465,226.07.

The trial court found for Hancock, imposing damages in the amount of $73,660.57 and ordering restoration of the backhoe to it.

W. W. contends that the evidence was insufficient to show that it abandoned the contract and that the proof did not sustain damages in the amount found, making the damages recovered excessive and punitive in nature. W. W. secondly contends that either it should have been allowed to retain the backhoe or its value should have been deducted from the total damages.

1. Although in conflict, the evidence sustains the finding that the contract was breached by W. W. and justifies the imposition of damages in the amount found. The measure of damages for defective or incomplete construction is the difference between the contract price and the reasonable and necessary cost to have the work completed in accordance with terms stipulated, or the reasonable costs of defect repair. Jack V. Heard Contractors v. Moriarity, 185 Ga. App. 317, 318 (2) (363 SE2d 822); Hutto v. Shedd, 181 Ga. App. 654, 656 (2) (353 SE2d 596) (1987); Gainesville Glass Co. v. Don Hammond, Inc., 157 Ga. App. 640, 642 (278 SE2d 182) (1981).

2. W. W. is correct regarding the backhoe.

“[T]he measure of damages for breach of contract is the monetary amount which will compensate the injured person which a fulfillment of the contract would have prevented or the breach of it entailed and place the person in the position in which he would have been if the contract had been fully performed.” Adamson Co. v. Owens-Illinois Dev. Corp., 168 Ga. App. 654, 657 (309 SE2d 913) (1983). “An injured party can not be placed in a better position than he would have been in if the contract had not been breached.” Lastinger v. City of Adel, 69 Ga. App. 535, 536 (26 SE2d 158) (1943); Crawford & Assoc. v. Groves-Keen, 127 Ga. App. 646, 650 (1) (194 SE2d 499) (1972).

Upon the satisfactory completion of the contract, Hancock would have incurred the agreed monetary price and would have been deprived of the backhoe. It cannot augment that position by the lawsuit. It cannot realize the full difference between the contract price and the actual price without deducting either the backhoe or its value because it had agreed to yield the backhoe as part of the consideration.

The judgment is affirmed on the condition that, within thirty days after our remittitur reaches the trial court, possession of the backhoe be permitted to remain with W. W. or its value be deducted from the amount of Hancock’s recovery; otherwise reversed.

Decided March 5, 1990.

George L. Williams, Jr., for appellants.

Kathryn M. Weigand, John E. James, for appellee.

3. In view of our ruling in Division 2, the motion for assessment of damages for frivolous appeal is denied.

Judgment affirmed on condition.

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


text:
    A89A2327.
    BROWN TRANSPORT CORPORATION v. STREET et al.
    (391 SE2d 699)
   Birdsong, Judge.

This case comes before us pursuant to our grant of authority to Brown Transport Corporation (“Brown”) for an interlocutory appeal of the trial court’s denial of Brown’s motion to dismiss the complaint against it filed by 0. Grady Street and Cleo Street (“the Streets”). The other defendants in the action, David L. Bowman (“Bowman”) and Thurston Motor Lines (“Thurston”), are not parties to the appeal.

After this appeal was docketed, Brown filed notice it had filed for bankruptcy under Chapter 11 of the Bankruptcy Code and a stay in bankruptcy was in effect. See 11 USC § 362. Subsequently, Brown also filed a motion to remand the appeal to the trial court pending resolution of the bankruptcy. Thereafter, however, the Streets obtained an order from the U. S. Bankruptcy Court granting relief from the stay. Based upon the representations of the parties that this order is effective to lift the stay, we assume, without deciding, that the order is effective for that purpose but we specifically reject appellees’ interpretation of the effect of the order. Accordingly, we have decided the appeal on its merits.

On August 16, 1986, Bowman was employed by Thurston as a line haul driver. In the scope of his employment he was driving a tractor trailer owned by Thurston and was involved in a collision with the Streets’ automobile. On the date of the collision, Thurston was owned by I. U. International (“IU”), a separate corporation from Brown and the company that owns Brown, Brown Transportation Company, Inc. (“BTCI”). It is not alleged that Brown, BTCI, nor any of their agents or employees were involved in the collision, were otherwise connected with the damages or injuries sustained by the Streets, or were in a business relationship with Thurston so as to give rise to liability under any usual theory of imputable negligence.

The record shows that on December 31, 1987, IU sold all of the common stock of Thurston to BTCI. BTCI did not assume liability for any claims such as this arising prior to December 31, 1987, and IU specifically agreed to be liable for such claims and agreed to indemnify BTCI for any expenses it incurred which arose from defending such claims.

After the sale of its stock to BTCI, Thurston ceased operations as a motor freight line, and its trucking operations and most equipment were combined with Brown’s. Thurston, however, retained its separate corporate identity and the title to its real property.

On June 29, 1988, the Streets sued Bowman, Thurston, and Brown. The complaint alleges that Brown bought or acquired Thurston, that Bowman as Thurston’s agent caused the Streets’ injuries, and that as a result of Bowman being Thurston’s agent, all Bowman’s negligent acts are attributable to Thurston and its successor, Brown. No other allegations of liability were made against Brown. The complaint demanded judgment against all the defendants for the damages the Streets incurred through Bowman’s negligence.

Bowman, Thurston, and Brown filed a joint answer to the complaint, and after discovery was completed, Brown moved to dismiss the complaint against it because it was not a proper party to the action. Brown contended that it could not be held liable in tort since it had no interest in Thurston at the time of the collision, did not agree to be liable for claims against Thurston arising prior to December 31, 1987, and cannot be held liable merely because its parent corporation, BTCI, owns Thurston’s common stock.

The Streets contended that liability could be imposed against Brown because the transfer to Brown, actually BTCI, would prevent them from recovering on their claims since they contend that Thurston is now without assets from which they could satisfy their judgment if they prevail. The Streets asserted that under OCGA § 18-2-22, conveyances by debtors deemed fraudulent, and OCGA § 11-6-101 et seq., the Bulk Transfer Act (“the Act”), they could maintain an action in tort directly against Brown.

Since matters outside of the record were submitted in support of the motion, the trial court treated the motion as one for summary judgment, and after concluding that genuine issues of material fact remained, denied Brown’s motion. Thereafter, the trial court granted a certificate for immediate review, and pursuant to Brown’s application, we granted this appeal. Brown enumerates as error the trial court’s denial of its motion. On appeal the parties essentially have restated their contentions in the trial court. Held:

1. This is a tort action based upon Bowman’s negligence which the Streets seek to impute through Thurston to Brown. They seek a judgment directly against Brown. The Streets, however, do not contend that on the date of the collision Brown had a connection with either Thurston or Bowman, or that Brown was otherwise involved in the collision. Instead, they assert liability because BTCI purchased Thurston’s stock over a year after the date of the collision.

In Bullington v. Union Tool Corp., 254 Ga. 283, 284 (328 SE2d 726), our Supreme Court stated the circumstance in which a purchasing corporation is liable for the liabilities of a selling corporation: “(1) there is an agreement to assume liabilities; (2) the transaction is, in fact, a merger; (3) the transaction is a fraudulent attempt to avoid liabilities; or (4) the purchaser is a mere continuation of the predecessor corporation.” The Streets have presented no evidence even suggesting that such circumstances are present in this case, and the record demonstrates that no such circumstances exist: The purchase and sale agreement expressly rejected assumption of liabilities arising prior to the date of the purchase and sale, there was no merger of the corporations because Thurston continued to exist as a separate corporation after the sale of the stock to BTCI, there is no evidence suggesting that the sale was fraudulent, and Brown is not a mere continuation of Thurston. Accordingly, liability may not be premised on any of these factors. Further, liability cannot be predicated merely because of the ownership of Thurston’s stock. Branham v. Louisville &c. R. Co., 69 Ga. App. 212 (24 SE2d 845). Moreover, “[a] debt due from one person can not be satisfied by the recovery of damages from another person, unconnected with and a stranger to it, without some statute provision.” Graves v. Horton, 132 Ga. 786, 791 (65 SE 112).

2. The Streets’ primary argument is that the Bulk Sales Transfer Act applies and they may therefore bring this action in tort directly against Brown. Initially, we note that a sale of corporate stock is not included within the definitions of a bulk transfer in the Act, the transfer of equipment is only included if transferred in connection with a bulk transfer of inventory, and Thurston as a motor freight line is not included with the category of enterprises subject to the Act, i.e., enterprises that sell merchandise from stock. OCGA § 11-6-102 (l)-(3). Since the Act is in derogation of the common law, it must be strictly construed (Indon Indus. v. Chas. S. Martin &c. Co., 234 Ga. 845, 847 (218 SE2d 562)), and we cannot extend the Act beyond its prescribed limits. Therefore, since the transfers the Streets rely on and Thurston, as an enterprise, are not subject to the Act, the Streets may not use the Act as a basis for their direct action against Brown.

Further, even actions within the scope of the Act do not permit direct actions in tort against the transferee. In interpreting an earlier version of the Act, we held that its purpose was to protect creditors against fraudulent sales by debtors. Stovall Co. v. W. E. Shepherd Co., 10 Ga. App. 498 (73 SE 761). More significantly, however, the Act preserves a creditor’s remedy against the goods, not against the transferee personally (American Express Co. v. Bomar Shoe Co., 125 Ga. App. 408 (187 SE2d 922)), and the Act permits a creditor to pursue goods in the hands of a transferee as though they still belonged to the transferor. McClain v. Laurens Glass Co., 127 Ga. App. 316, 317 (193 SE2d 194). See also American Express Co. v. Bomar Shoe Co., 127 Ga. App. 837 (195 SE2d 479) (physical precedent). Consequently, the Bulk Transfer Act does not authorize a direct action for negligence against Brown.

Decided March 5, 1990.

Nall, Miller, Owens, Hocutt & Howard, James S. Owens, Jr., Stephanie L. DeBerry, for appellant.

Ellis, Moore & Simons, Alan M. Simons, Edward P. Ellis, for appellees.

3. OCGA § 18-2-22 also offers no support for the Streets’ contention that they may bring a direct action in tort against Brown for Bowman’s negligence, imputed to Thurston, because of the allegedly fraudulent transfer of either Thurston’s stock to BTCI or Thurston’s equipment to Brown. This code section, in appropriate circumstances, declares certain fraudulent transfers void as against creditors and certain others. It protects creditors by permitting them to pursue property fraudulently conveyed so that they may recover by setting aside the fraudulent transfer, and, when appropriate, by permitting them to recover damages for the fraud. See Kesler v. Veal, 182 Ga. App. 444, 446-451 (356 SE2d 254), as modified Kesler v. Veal, 257 Ga. 677 (362 SE2d 214). This code section does not, however, either by its terms or by implication, create a direct cause of action in tort against the transferee for the transferor’s negligence in a completely separate transaction.

4. As no direct cause of action in tort lies against Brown under the Bulk Transfer Act, under OCGA § 18-2-22, or under Chapter 2 of Title 51, OCGA, for the alleged negligence of Bowman and Thurston, the trial court erred by denying Brown’s motion.

Judgment reversed with direction that the trial court enter judgment dismissing the complaint against Brown Transport Corporation.

Deen, P. J., and Cooper, J., concur.


text:
    A89A2339.
    HALL v. OKEHI.
    (391 SE2d 787)
   Beasley, Judge.

Hall appeals from the trial court’s grant of defendant Dr. Okehi’s motion for summary judgment in this medical malpractice action.

Hall filed a complaint alleging that Dr. Okehi was guilty of medical negligence in performing an episiotomy on Hall during the delivery of her child in March 1986; that this resulted in her developing a rectovaginal fistula; and that Dr. Okehi was further negligent during the subsequent course of her treatment extending over two years until April 1988 when she changed to another doctor. During that period Hall made at least eleven office visits and Dr. Okehi performed surgery on two occasions, February 1987 and February 1988, to repair the perineum. Hall asserted that both operations were negligently and improperly conducted; that Dr. Okehi negligently failed to refer Hall to a more experienced and skilled physician to accomplish the surgery; and that Dr. Okehi intentionally misled Hall into believing that he possessed the requisite expertise to perform the surgical repairs in order to take advantage of the statute of limitation for medical negligence.

Dr. Okehi answered the complaint and, after discovery, moved for summary judgment, attaching his affidavit. It recited: he exercised that degree of reasonable care and skill required of other obstetricians and gynecologists in general acting under similar circumstances performing such treatment; he was not negligent in any manner in performing the treatment; his treatment did not cause or contribute to any injury to Hall.

Hall filed an affidavit in the form of a letter by a Dr. Daniel which was attested by a notary. Dr. Daniel stated that his evaluation was based upon review of specifically identified medical documents concerning Hall. He noted that his examination of the records “raised several serious issues related to deviation from acceptable standards of care which may have been directly related to Ms. Hall’s prolonged and recurrent perineal defect.”

He then made a number of detailed observations of what was done, what was not done, and what should have been done. One of the items was the failure to keep full and accurate records. Briefly summarized, there were three major areas Dr. Daniel described as instances where medical standards were not met. 1) There was no evidence that acceptable surgical technique was utilized either February 3, 1987 or February 26, 1988. “Indeed, gynecologic surgery involving any ‘abscess’ (26 February 1988) requires concomitant antibiotic therapy.” 2) Following the initial unsuccessful perineal defect repair of February 3, 1987, exercise of prudent and proper medical judgment would have indicated referral to another more experienced and skilled surgeon. Consultation with a qualified colleague for a second opinion should have been obtained before proceeding with further repair attempts; especially, after failure of the second attempt, “immediate consultation would have been mandatory in my professional medical opinion.” 3) The method used in delivering plaintiff’s child [which was described] reflected “poor obstetrical judgment”; a Caesarean section was preferable, exposing mother and infant to less traumatic delivery.

Dr. Daniel noted that there were “apparent gross deviations from acceptable standards of recordkeeping and obstetric/gynecologic care which may have directly resulted in recurrent defects in the perineal body [of plaintiff].” He concluded that Dr. Okehi’s two perineal repairs “were not performed by commonly accepted gynecologic surgical techniques.”

The trial court held that the affidavit of Hall’s expert merely stated conclusions that Okehi’s treatment did not meet the appropriate standards of care and was insufficient to raise an issue of fact. Summary judgment for Okehi was granted.

1. Okehi asserts that Dr. Daniel’s affidavit was insufficient because it failed to show personal knowledge or a basis on which to form an opinion, in that all the records he referenced were not on file at the time. For this additional reason he argues that the trial court properly granted summary judgment.

Lack of personal knowledge is not a fatal defect. “[E] xpert opinion testimony is not objectionable merely because it is not based on facts within the personal knowledge of the witness.” Jones v. Rodzewicz, 165 Ga. App. 635, 636 (1) (302 SE2d 402) (1983).

Plaintiff’s expert was entitled to base his opinions upon medical records which he reviewed and would be the same facts introduced hypothetically at trial. Id. at 636. However, OCGA § 9-11-56 (e) requires that sworn or certified copies of such material be attached to the affidavit. If such medical records are not part of the record in the case, they would have no probative value. Crawford v. Phillips, 173 Ga. App. 517 (1) (326 SE2d 593) (1985).

Okehi contends erroneously that the code requirements and those set forth in Crawford, supra, Nettles v. Laws, 172 Ga. App. 241 (322 SE2d 546) (1984), and Landers v. Ga. Baptist Med. Center, 175 Ga. App. 500, 502 (333 SE2d 884) (1985), were not met. “ ‘An affidavit need not attach material upon which it is based if that material is part of the record in the case and is before the trial court, provided that the affidavit clearly identifies the record matter upon which it is based.’ ” Hughey v. Emory Univ., 168 Ga. App. 239, 240 (308 SE2d 558) (1983). An affidavit may be disregarded only where it refers to documentation which is neither part of the record nor attached to the affidavit. Landers, supra at 502; Nettles, supra at 242. All documents referenced in the expert’s affidavit were part of the record prior to the hearing on the summary judgment motion.

The assertion that the medical records should be ignored for lack of certification is also meritless. The 260 pages of records from the Medical Center of Central Georgia were certified [R. 94]. Twenty-seven pages of records [R. 382 through 410] from Baldwin County Hospital and Daksha Chudgar, M. D., were vouched for in a separate document by Dr. Chudgar [R. 430]. Only eighteen pages of documents from Okehi [R. 363 through 380] were not certified, but they were supplied by defendant in response to a request by plaintiff’s counsel. There are no reasonable grounds to ignore any of the documents referred to by Dr. Daniel and no basis to disregard his affidavit. Jones, supra. Compare Crawford, supra.

2. “In a medical malpractice case, a defendant-doctor’s affidavit stating his expert opinion that his care of the patient met the appropriate standard of care establishes the defendant’s right to summary judgment unless the plaintiff counters with a contrary opinion by an expert.” Beauchamp v. Wallace, 180 Ga. App. 554 (349 SE2d 791) (1986) , citing Payne v. Golden, 245 Ga. 784 (267 SE2d 211) (1980).

“[P]laintiff cannot prevail on motion for summary judgment by merely presenting a conclusory [sic] opinion that defendant was negligent or failed to adhere to the professional standard. [Cit.] She must state the particulars. She must establish the parameters [sic] of the acceptable professional conduct and set forth how or in what way the defendant deviated therefrom.” (Emphasis in original.) Loving v. Nash, 182 Ga. App. 253, 25§. (1) (355 SE2d 448) (1987). Accord Minchey v. Zane, 188 Ga. App. 733 (374 SE2d 225) (1988); Martin v. Wilson, 184 Ga. App. 196 (361 SE2d 209) (1987); Bushey v. Atlanta Emergency Group, 179 Ga. App. 827 (348 SE2d 98) (1986).

The trial court found that Jackson v. Gershon, 251 Ga. 577 (308 SE2d 164) (1983); Hively v. Davis, 181 Ga. App. 733 (353 SE2d 622) (1987) , and Lawrence v. Gardner, 154 Ga. App. 722 (270 SE2d 9) (1980), are not applicable. Those decisions recognize that mathematical certainty is not required in affidavits offered to demonstrate medical negligence. Such approach is an essential factor in our consideration of whether the medical affiant set forth standards and pointed out ways in which the defendant-doctor failed to meet them.

The statements evince a failure by Okehi to follow the “parameters” of acceptable professional conduct, as described earlier.

“[E]xplicit conclusory pronouncements out of the mouths of those clothed with the mantle of evidentiary expertise are not essential.” Lawrence v. Gardner, supra at 724. The language in the affidavit may lack the precision indicated from a literal reading of our opinions. But utilization of a common-sense approach to its sufficiency as mandated by Jackson u. Gershon, supra, with a view of the proof in favor of the party opposing the motion, requires our holding that genuine issues of material fact remain. Hooker v. Headley, 192 Ga. App. 629 (385 SE2d 732) (1989), found similar statements by an affiant expert sufficient to withstand motion for summary judgment.

Decided March 5, 1990.

Pat D. Dixon, Jr., for appellant.

Martin, Snow, Grant & Napier, John C. Edwards, for appellee.

Judgment reversed.

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

       Although these are the terms used in the cases, a more accurate usage would be “conclusional” for “conclusory” and “standards” or “minimum requirements” for “parameters.”