author: Ruffin, Judge. McMurray, Presiding Judge,

text:
    A99A1526.
    YEAZEL et al. v. BURGER KING CORPORATION.
    (526 SE2d 112)
   Ruffin, Judge.

In this case, the trial court entered a declaratory judgment in favor of Burger King Corporation (BKC), the tenant under a commercial lease, regarding the proper method of calculating rent due under the lease. The trial court further held that BKC was entitled to recover all overpayments of rent made during the pendency of the litigation, but that recovery of earlier overpayments was barred by the voluntary payment doctrine. The landlords, Jack and Rita Yeazel, appeal. Because the trial court misapplied the voluntary payment doctrine and refused to consider parol evidence of the parties’ intent in entering into an amendment of the lease, we reverse the judgment in favor of BKC and remand for further consideration. We also affirm in part and reverse in part the denial of the Yeazels’ motion for summary judgment.

In 1980, the Yeazels leased the subject property to The Wheeler Organization, Inc. (TWO). Paragraph 3 of the lease provided that TWO would operate a Burger King restaurant on the premises in accordance with the terms of a license agreement between Paul Wheeler and BKC. In paragraph 2 of the lease, TWO agreed to pay monthly rent equal to the greater of (a) $4,000 or (b) seven percent of gross sales from the operation of the restaurant.

In 1985, Wheeler and BKC began discussions regarding a purchase by BKC of TWO’s stock. According to Wheeler, before entering into such an agreement, BKC wanted to eliminate the lease provision requiring the property to be operated as a Burger King restaurant. In April 1985, TWO and the Yeazels executed a written amendment of the lease, drafted by BKC, which deleted the original paragraph 3 and substituted the following language:

Lessee agrees to continue to operate a Burger King Restaurant on the demised premises. Lessor grants Lessee the right to use the premises for any other lawful purpose, provided however, in the event that Lessee ceases to operate a Burger King Restaurant on the premises ... or makes any other use of the premises except the operation of a Burger King Restaurant, the monthly rental during each month of the term of this lease shall be equal to the greater of (i) one-twelfth (1/12) of seven percent (7%) of “gross sales” for the twelve (12) months immediately preceding the initial change of use (hereinafter referred to as base rent) or (ii) seven percent (7%) of gross sales from the operation of the business on the premises. The base rent shall then be increased by five percent (5%) annually for the duration of the lease term.

The rent calculations in the amendment, to be applied upon a change in use of the property, did not include the minimum monthly base rent of $4,000 set forth in paragraph 2 of the original lease. Although the amendment did not purport to delete paragraph 2, it provided that “[i]n the event there are any inconsistencies between the Lease and this Amendment of Lease, the provisions of this Amendment shall control.” Wheeler and Mr. Yeazel both testified that, when they executed the amendment, it was their intent to retain the minimum monthly rent of $4,000. They believed that, reading the original lease and the amendment together, the amended lease did in fact retain such provision. If, however, the amendment were construed to have deleted the minimum monthly rent provision following a change in use, they both testified that this would be contrary to their intent and amount to a mistake.

On the same day the amendment was executed, BKC merged with TWO, purchasing all of its outstanding stock. Over the next several years, BKC continued to operate a Burger King restaurant on the property and pay rent accordingly. In March 1990, BKC ceased operating a Burger King restaurant on the property. For the next four and a half years, BKC continued to pay rent as if the $4,000 minimum base rent provision of paragraph 2 were still in effect, although it periodically increased the base rent by five percent as provided in the lease amendment. On June 28, 1991, BKC sent the Yeazels a letter stating that “[a]s Paragraph #3 indicates, your rent from Burger King Corporation will be $4,000 per month with a 5% increase per year. Also, should annual gross sales of the subtenant exceed $540,101, you will be entitled to a 7% override.” In August 1994, however, BKC took the position that the $4,000 minimum monthly base rent provision had been deleted by the 1985 amendment, and that it had been overpaying rent since April 1990. Nevertheless, it continued to pay rent as if the minimum base rent provision were still in effect, although it informed the Yeazels that it was doing so under protest.

In February 1995, BKC filed this action seeking recovery of the alleged overpayments, contending that they had been made by mistake. However, BKC continued paying the disputed rent directly to the Yeazels throughout the pendency of this action. In their answer, the Yeazels contended that recovery was barred pursuant to the voluntary payments doctrine set forth in OCGA § 13-1-13. They also filed a counterclaim, seeking a declaratory judgment that the minimum monthly base rent provision was not deleted by the amendment. In the alternative, they sought to reform the lease pursuant to OCGA § 23-2-30 to include the minimum base rent provision.

The Yeazels filed a motion for summary judgment on July 14, 1995. In October 1995, BKC filed a “Motion for Declaratory Judgment,” asking the court to declare that rent should be calculated based solely on the language of the amendment, without any reference to the $4,000 minimum base rent provision in paragraph 2 of the original lease. About a year later, in November 1996, BKC amended its complaint to seek declaratory judgment as to the amount payable under the lease. The trial court held a hearing on several pending motions, including BKC’s motion for declaratory judgment and the Yeazels’ motion for summary judgment. On March 6, 1998, the trial court entered an order granting BKC’s motion for declaratory judgment as to the construction of the amended lease. The court expressly refused to consider parol evidence of Mr. Yeazel’s and Wheeler’s intent in executing the amendment, holding that the language of the amendment was unambiguous. The court further held that BKC could recover all overpayments made during the pen-dency of the lawsuit, but refused to let BKC recover any prior over-payments, holding that such payments were voluntary. The court subsequently entered a final judgment setting forth the specific amounts owed by the Yeazels to BKC.

1. As an initial matter, although the trial court purported simply to grant BKC’s motion for declaratory judgment, it in fact granted final judgment on all claims raised in the case, including BKC’s claim to recover money paid by mistake. The court did not hold a trial on these claims and did not accept evidence at the hearing on the motions. Rather, the court simply stated that it was making its ruling “[a]fter hearing oral argument and reviewing the record.”

On appeal, neither party addresses the propriety of the trial court entering final judgment in BKC’s favor without conducting a trial and without BKC having filed a motion for summary judgment. Although BKC’s motion for declaratory judgment could arguably be construed as a motion for summary judgment on its claim for declaratory relief, the motion does not address BKC’s right to obtain money damages from the Yeazels. Therefore, it is not clear why the trial court considered itself authorized to enter final judgment on such claim. Because the Yeazels do not raise this issue on appeal, we do not consider whether the trial court erred procedurally by entering final judgment in BKC’s favor. As discussed below, the trial court committed errors of law requiring reversal. In considering this case after remand, of course, the trial court should consider the procedural posture of the case. /

2. Mr. Yeazel and Wheeler both testified that, in entering into the lease amendment, it was their intent to retain the $4,000 minimum monthly rent provision, and that they in fact believed such provision was not affected by the amendment. To the extent that the amendment is interpreted as effectively deleting that provision upon a change in use of the property, they testified that the amendment failed to accurately reflect their agreement. Accordingly, the Yeazels sought to reform the lease to include the minimum monthly rent provision. In rejecting the Yeazels’ reformation claim, the trial court stated that it would not consider parol evidence of a mutual mistake because the language of the amendment was unambiguous. The Yeazels contend that this ruling was error, and we agree.

“In all cases where the form of the conveyance or instrument is, by mutual mistake, contrary to the intention of the parties in their contract, equity will interfere to make it conform thereto.” Specifically, our Supreme Court has held that

[a] petition for reformation of a written contract will lie where by mistake of the scrivener and by oversight of the parties, the writing does not embody or fully express the real contract of the parties. The cause of the defect is immaterial so long as the mistake is common to both parties to the transaction. And the negligence of the complaining party will not defeat his right to reformation if the other party has not been prejudiced.

The term “mistake” refers to “some unintentional act, or omission, or error, arising from ignorance, surprise, imposition, or misplaced confidence.” Such a mistake may be one of fact or of law. A “mutual mistake” means

a mistake shared by, or participated in by, both parties, or a mistake common to both parties, or reciprocal to both parties; both must have labored under the same misconception in respect of the terms and conditions of a written instrument, intending at the time of the execution of the instrument to say one thing and by mistake expressing another, so that the instrument as written does not express the contract or intent of either of the parties. A mutual mistake is one in which both parties participate by each laboring under the same misconception.

In an action for reformation based upon an alleged mutual mistake,

the parol evidence rule does not bar introduction of testimony as to the oral agreement reached by the parties which the writing was intended to reflect. Cotton States Life Ins. Co. v. Carter, 65 Ga. 228 (1880); Green v. Johnson, 153 Ga. 738 (7) (113 SE 402) (1922).

Such parol evidence is admissible even though the party seeking reformation signed the contract. The fact that the parol evidence contradicts the language of the written document clearly does not bar its admissibility, since the gist of a reformation action is that the written document does not accurately reflect the parties’ agreement. Accordingly, the trial court erred in refusing to consider parol evidence of a mutual mistake in the execution of the lease amendment.

Neither party addresses whether the fact that BKC was not an original party to the lease amendment affects the analysis of the reformation issue. OCGA § 23-2-34 provides that “[e]quity will grant relief as between the original parties or their privies in law, in fact, or in estate, except bona fide purchasers for value without notice.” BKC acquired its interest in the lease not by assignment, but by purchasing all of the stock in TWO, the original tenant. It is at least arguable that, by merging with TWO, BKC in effect stands in TWO’s shoes with respect to the lease. At the very least, BKC is a successor to TWO’s interest in the lease, and thus in privity with TWO as contemplated in the statute. Accordingly, the equitable remedy of reformation is available unless BKC constitutes a “bona fide purchaser for value without notice.”

The trial court made no findings as to whether BKC was in fact a bona fide purchaser without notice. Therefore, we cannot affirm the trial court’s decision under a “right for any reason” analysis unless the evidence demands as a matter of law a finding that BKC was a bona fide purchaser without notice. If the evidence does not demand such a finding, then it is for the trier of fact in the first instance to make the necessary factual finding, and we cannot assume that it would do so.

The evidence in this case shows that BKC was actively involved in the negotiations regarding the lease amendment and was in fact the driving force behind the amendment. Paul Wheeler, the principal officer and shareholder of TWO at the time, testified that when he began negotiating the sale of the corporation to BKC, BKC said that it wanted to modify the lease to allow it to operate the restaurant as something other than a Burger King. BKC prepared a proposed amendment and gave it to Wheeler to pass along to the Yeazels. Wheeler testified that, during the negotiations, Mr. Yeazel expressed concern that the rent not decrease if the restaurant use was changed. Wheeler said that he “expressed [the Yeazels’] thoughts to Burger King, who then took those thoughts, made whatever modifications were made at the time, and resubmitted an amendment of lease.”

Wheeler testified as follows during his deposition:

Q. Did you discuss with Mr. Yeazel specifically that you wanted the minimum base rent of $4,000 always to remain in place?
A. Absolutely.
Q. And when you talked about the guarantee of the 5 percent increase, what you meant was if the profitability of the store went down and you were out of percentage rents and you were now into the minimum base rent, that if that occurred there would be a 5 percent increase?. . .
A. That was our intent. . . .
Q. Did you convey Mr. Yeazel’s concern that the minimum base rent have a guaranteed increase if it went down to that to Burger King?
A. That was part of my discussions with Burger King, yes.
Q. Do you believe you were clear to Burger King that the minimum base rents would, in fact, remain as a minimum guarantee, as the words you used I believe were worst-case scenario?
A. I think that is correct. And, in fact, I thought it was in the amendment.

Wheeler said that he “functioned as an intermediary” between BKC and the Yeazels in the negotiations regarding the amendment, and that a BKC representative was present at the signing of the amendment. Stuart Blake, BKC’s corporate counsel, testified that he drafted the amendment and that Wheeler signed it “at the bequest of Burger King.” The lease amendment was signed at the same time as the documents relating to the sale of TWO stock.

The evidence thus does not establish that BKC was without knowledge of the parties’ understanding as to the effect of the amendment. If BKC was in fact aware that the original parties to the amendment understood that the minimum base rent provisions were not altered, then it cannot be said that BKC was simply an innocent purchaser without notice. The fact that, for more than four years after it changed the use of the restaurant, BKC continued without objection to make rent payments in accordance with the original parties’ understanding of the lease further suggests that BKC was aware of their intentions, and that it interpreted the amended lease in the same manner. BKC’s June 28, 1991 letter to the Yeazels provides additional evidence that it interpreted the lease to include a $4,000 minimum base rent provision.

We recognize that Wheeler’s credibility regarding the negotiations over the amendment is subject to attack. For instance, Wheeler testified that Mr. Yeazel was “nice enough” to loan him $275,000 in 1988 to help him settle some business debts, suggesting that Wheeler might have a reason to want to assist the Yeazels in their current dispute with BKC. In the event of a trial, BKC would of course be entitled to present evidence contradicting Wheeler’s account. However, Wheeler’s credibility is a matter for the trier of fact. Although the factfinder might conclude that Wheeler’s testimony is not credible, and that BKC did in fact lack knowledge of the parties’ intent regarding the amendment, the trial court did not consider that issue in making its ruling.

Because the trial court expressly indicated that it would not consider parol evidence of the parties’ intent and relied simply on the language of the amended lease, the trial court’s judgment in favor of BKC must be reversed and this case remanded for further consideration.

3. The Yeazels also contend that the voluntary payment doctrine bars BKC from recovering any alleged rent overpayments made during the pendency of the lawsuit. We agree.

The voluntary payment doctrine is set forth in OCGA § 13-1-13, which states that

[playments of claims made through ignorance of the law or where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered unless made under an urgent and immediate necessity therefor or to release person or property from detention or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule prescribed in this Code section.

It is true that, until the trial court issued its ruling, BKC could not be sure whether the court would agree with its interpretation of the amended lease. However, the fact that construction of the lease was in doubt does not affect whether BKC was aware of all the material facts at the time it made the payments. To hold otherwise would essentially render the voluntary payment doctrine meaningless, since any party which voluntarily makes a payment it does not think is required could argue that the payment was involuntary because it was not sure whether its position would prevail in court.

The error in such a position is illustrated by our decision in Dunton v. Norton In that case, a judgment was rendered against the plaintiff on a surety bond. Although the plaintiff believed that the judgment had been fraudulently obtained, she paid the judgment and then sued to set it aside and recover the amount of her payment. We held that the voluntary payment doctrine precluded recovery of the amount paid, since “it appears that the payment was made with full knowledge of any facts such as might have rendered the judgment illegal.” We did not focus on whether, at the time the plaintiff made the payment, there was any doubt as to whether her position would be successful in court, but focused on whether she was aware of “facts” which “might” have made the judgment illegal.

The key question therefore is not whether BKC knew that its position would be vindicated in court, but whether it had all the facts at the time it made the payments. At the very time BKC was making the rent payments at issue, it was asserting in this lawsuit that it was not obligated to make such payments under the lease. Although BKC may not have been confident that a court would agree, it cannot seriously contend that it made the payments involuntarily in the sense contemplated by the statute — i.e., that it made the payments by mistake because it was unaware of facts showing that they were not required.

Nor can it be said that BKC made the payments because it was mistaken as to the law. As demonstrated by its complaint in this action, BKC in fact believed that the law did not require it to make rent payments in the amount claimed by the Yeazels. Thus, although BKC may not have been confident of its position, it cannot assert that it made the payments involuntarily because it mistakenly believed the law required it to do so.

Since BKC made the payments at issue with knowledge of the material facts, and not through a mistake of law, we must consider whether the fact that a lawsuit was ongoing regarding the construction of the lease takes the payments outside the scope of the voluntary payment doctrine. Nothing in OCGA § 13-1-13 suggests that the existence of a lawsuit on the subject renders the doctrine inapplicable. Rather, the statute says that a payment made with knowledge of the facts is “deemed voluntary and cannot be recovered” unless (1) the payment is “made under an urgent and immediate necessity therefor,” (2) the payment is made “to release person or property from detention,” or (3) the payment is made “to prevent an immediate seizure of person or property.”

Georgia courts have strictly interpreted the requirement that, to be recoverable, a payment must be made under an “urgent and immediate” necessity or in order to prevent an “immediate” seizure. For example, it has been held that a threat to levy on a judgment if payment is not made does not constitute such an immediate threat as to render the payment involuntary. Furthermore, in keeping with other jurisdictions, Georgia courts have held that “[m]ere apprehension or threats of a civil proceeding to enforce a claim, unaccompanied by any act of hardship or oppression, does not render a payment in response thereto involuntary in the sense that it can be recovered back.” Citing Cooper v. Public Finance Corp., CJS states that “this rule also applies although the payment is not made until after legal proceedings to recover on the asserted claim have actually been instituted in good faith.”

In Cooper, a finance company sued its debtors for failing to make payments under a note and security agreement. After suit was filed, the debtors made some payments and eventually paid the entire amount after a default judgment was obtained. They then filed two actions against the finance company, alleging that the loan transactions were illegal and void and seeking to set aside the default judgment. We held that

all payments by the plaintiffs were voluntary. Voluntary payments began after suit was filed — before judgment, and continued after judgment until the debt was discharged — except for a few dollars. Under the facts of this case, such voluntary payments cannot be recovered . . . unless within an exception stated in the Code. We find no such exception.

Clearly, therefore, the fact that there is pending litigation regarding a party’s obligation to pay money does not render payments made during the litigation involuntary unless they come within an exception specified in OCGA § 13-1-13. While the existence of the lawsuit may indicate that there is a dispute as to the party’s obligation to make the payment, the statute states that “[fliling a protest at the time of payment does not change the rule prescribed in this Code section.”

Although BKC may have feared that the Yeazels would take action if it failed to make the payments in the amount demanded, there is no evidence that the payments were made to counter an immediate threat to person or property so as to come within an exception to OCGA § 13-1-13. BKC contends that the payments were necessary because the Yeazels could seize the leased premises in the event of default. However, the lease requires the Yeazels to give BKC 30 days written notice of their intent to terminate the lease because of any default and gives BKC the right to cure any such default before the expiration of the 30-day period. Accordingly, until such time as the Yeazels have given BKC notice of intent to terminate, it cannot be said that payment of any disputed amount was necessary to avoid an immediate seizure of property.

We note that, in July 1994, more than six months before BKC filed this action, the Yeazels sent BKC a notice of default based on its alleged underpayment of rent. BKC responded to this notice by paying the disputed rent “under protest.” It is at least arguable that this particular payment was made under an “urgent and immediate necessity” or to prevent an “immediate” seizure of property (although the trial court held that this payment was not recoverable, and BKC did not appeal this ruling). However, we do not believe that this one default notice, sent six months before suit was filed, means that all subsequent payments made by BKC, in particular those made after the filing of this lawsuit, were necessary to prevent “immediate” action by the Yeazels. Moreover, we have held that

if the law affords to the person from whom the payment is exacted an immediate and adequate remedy to resist payment, he cannot be said to have acted under compulsion, if, by neglecting to avail himself of such remedy, he elects to make the payment demanded of him.

If, during the course of this action, the Yeazels had given BKC notice of their intent to terminate the lease due to alleged underpayment of rent, BKC could have moved for an injunction preventing the Yeazels from declaring default until the rent dispute was resolved. We note that the Yeazels’ original answer requested equitable relief by seeking reformation of the lease. “Equity having assumed jurisdiction will retain it to afford complete relief between the parties as to the subject matter of the complaint.” Because BKC elected to pay the disputed amounts to the Yeazels, rather than availing itself of remedies to resist payment, its payments must be considered voluntary for purposes of OCGA § 13-1-13. Accordingly, the voluntary payment doctrine prevents BKC from recovering any payments made during the pendency of this action, and the Yeazels were entitled to summary judgment on this issue.

Judgment affirmed in part and reversed in part and case remanded.

Johnson, C. J, Pope, P. J., Andrews, P. J., and Smith, J., concur. McMurray, P. J., and Eldridge, J, dissent.

McMurray, Presiding Judge,

dissenting.

I fully agree the trial court erred in refusing to consider parol evidence of an alleged mutual mistake. Nevertheless, I would affirm under the “right for any reason” rule, because the intervening equity of a bona fide purchaser for value precludes reformation of this lease. Furthermore, the voluntary payment rule does not bar recovery of alleged overpayments made during the pendency of this action. I therefore respectfully dissent from the judgment of reversal.

Plaintiff-appellee Burger King Corporation (“BKC”) brought this action against defendants-appellants Rita D. Yeazel and Jack H. Yeazel, seeking to recover money (rent) allegedly overpaid by mistake under a 20-year lease of commercial property in Cobb County, Georgia. Defendants defended on the ground that all payments were voluntary and counterclaimed for reformation of the lease as amended, for breach of contract, and for declaratory judgment. Plaintiff amended its complaint, also seeking declaratory judgment. The following undisputed facts are relevant to the disposition of this appeal:

In 1980, defendants leased their property to The Wheeler Organization, Inc. (“TWO”) to operate a Burger King restaurant as authorized in a franchise agreement between BKC and Paul Kelley Wheeler. TWO agreed to a monthly rental equal to the greater of (a) $4,000 or (b) seven percent of gross sales from the operation of the restaurant, as that term is defined in the franchise agreement. In April 1985, defendants and TWO entered into a written modification, which deleted the original paragraph 3 entitled “Use” in its entirety and added the following language:

Lessee agrees to continue to operate a Burger King Restaurant on the demised premises. Lessor grants Lessee the right to use the premises for any other lawful purpose, provided however, in the event that Lessee ceases to operate a Burger King Restaurant on the premises ... or makes any other use of the premises except as a Burger King Restaurant, the monthly rental. . . shall be equal to the greater of (i) one-twelfth (1/12) of seven percent (7%) of “gross sales” for the twelve (12) months immediately preceding the initial change of use (hereinafter referred to as base rent) or (ii) seven percent (7%) of gross sales from the operation of the business on the premises. The base rent shall then be increased by five percent (5%) annually for the duration of the lease term.

This amendment also extended the term of the lease to September 30, 2005, and permitted TWO to assign its rights under the lease to any approved Burger King franchisee. One month later, in May 1985, TWO merged with plaintiff BKC. In 1984 and 1985, defendants collected over $5,000 per month in rent. In March 1990, plaintiff ceased to operate a Burger King restaurant on the premises. According to the affidavit of Ron Reis, an accountant with BKC, from April 1990 through June 1992, BKC paid defendants $4,000, whereas under the amendment the correct amount would have been $3,127.51 until April 1991, when $3,283.89 would have been correct. In June 1992, rental payments were increased five percent to $4,200, whereas under the amendment, the rent would have changed to $3,448.08. In July 1993, the rent paid increased five percent to $4,410, while under the amendment it should have been $3,620.49 until April 1994, when $3,801.51 would be correct. Starting in August 1994, BKC paid monthly rent of $4,630.50 through February 1995, when this litigation commenced. The alleged overpayments total $39,772.29.

After discovery, the trial court denied defendants’ motion for summary judgment and, in a non-final order, granted BKC’s motion for declaratory judgment, effectively construing the rental term of the lease as amended. In so construing the amendment, the trial court refused to reform the contract to impose an overriding minimum base rent of $4,000, despite the uncontradicted affidavit testimonies of defendant Jack Yeazel and Paul Wheeler of TWO that such a monthly minimum was the true intention of the original parties to the amendment. The trial court further ruled that OCGA § 13-1-13 prevented plaintiff from recovering alleged overpayments made prior to filing the complaint under the theory that these were voluntary payments. From the final order directing defendants to reimburse plaintiff more than $15,000 ($15,715.96 with interest accruing at the rate of 12 percent per annum from the date of the judgment) in rent overpaid since the filing of the action, defendants brought this appeal.

1. The majority correctly holds the trial court erred in refusing to consider parol evidence of mutual mistake of fact authorizing reformation of the writing constituting the agreement of the original parties to the lease. The uncontradicted evidence demonstrates the intent of the original parties to the 1985 lease amendment was to include an overriding minimum base rent of $4,000 per month.

A mistake of law by the draftsman or other agent, by which the contract, as executed, does not fulfill or violates the manifest intention of the parties to the agreement may be relieved in equity. OCGA § 23-2-23; Sheldon v. Hargrose, 213 Ga. 672, 674 (1) (100 SE2d 898).

In a suit for reformation of contract based upon alleged mutual mistake, the parol evidence rule does not bar introduction of testimony as to the oral agreement reached by the parties which the writing was intended to reflect. Cotton States Life Ins. Co. v. Carter, 65 Ga. 228 [, 230] (1880); Green v. Johnson, 153 Ga. 738 (7) (113 SE 402) (1922).

Ga. Farm &c. Ins. Co. v. Wall, 242 Ga. 176, 179 (2) (249 SE2d 588). Consequently, the trial court’s reasoning that parol evidence is inadmissible to reform an unambiguous contract is erroneous. The question then becomes whether refusal to reform the lease is nevertheless correct, for a judgment that is right for any reason must be affirmed. Amwest Surety Ins. Co. v. RA-LIN & Assoc., 216 Ga. App. 526, 531 (1) (455 SE2d 106).

In my view, equitable relief in the form of reformation of the amended lease is precluded by the intervening equity arising from the subsequent assignment of that lease to BKC for valuable consideration, without notice of defendants’ intent that the lease as amended provide a minimum monthly rent of $4,000, even in the event BKC no longer operated a Burger King restaurant on the premises. “Equity will grant relief as between the original parties or their privies in law, in fact, or in estate, except bona fide purchasers for value without notice.” OCGA § 23-2-34. This rule applies to the remedy of reformation. Volunteer &c. Ins. Co. v. Powell-White Co., 187 Ga. 705, 707 (2) (1 SE2d 662). The mistake of the parties to the original lease cannot be rectified to the detriment of an innocent purchaser for value without notice. Malette v. Wright, 120 Ga. 735, 742 (2) (48 SE 229). Accord Spinks v. Glenn, 67 Ga. 744, 747 (4) (1881). The trial court correctly refused to reform this lease as amended, in order to impose an overriding minimum monthly rent of $4,000.

2. The trial court ruled that recovery of any alleged overpay-ments plaintiff made prior to the initiation of this suit for money paid by mistake was precluded by OCGA § 13-1-13 regarding voluntary payments, but further concluded that Code section did not prevent plaintiff from claiming an offset or recoupment for any overpayments made during the pendency of the declaratory judgment action. I disagree with the majority that this ruling is error.

Payments of claims made through ignorance of the law or where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered unless made under an urgent and immediate necessity therefor or to release person or property from detention or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule prescribed in this Code section.

OCGA § 13-1-13. Defendants argue that BKC cannot prove it was legitimately unaware of the true facts and further argue the trial court ignored the payment under protest portion of the rule.

In my view, BKC did not have all the material facts at any time it made a payment during the pendency of the action, because the construction of the amendment was in doubt until the trial court’s initial ruling. Consequently, the so-called voluntary payment doctrine was certainly inapplicable once plaintiff sought declaratory judgment or construction of the contract. “If [payment] was made in ignorance of the law, recovery is barred; if in mistake of law, recovery is permitted. [Cits.]” American Surety Co. v. Groover, 64 Ga. App. 865, 870 (14 SE2d 149) (on rehearing). Where one acts under a mistake of what the applicable law was to the state of facts, or was requiring of it, this mistake, though a product of ignorance, would be such a mistake of law as would come within the rule authorizing recovery or reallocation of payments. Emond v. State Farm &c. Ins. Co., 175 Ga. App. 548, 550 (2) (333 SE2d 656). A determination of the rights of the parties to a lease is a proper subject for declaratory relief under OCGA § 9-4-1 et seq. Cook Farms v. Bostwick, 165 Ga. App. 692, 693 (1) (302 SE2d 574). The trial court correctly determined that alleged overpayments in monthly rent made during the pendency of a declaratory judgment action to construe the amended lease and determine the correct amounts owed thereunder were not barred from recovery or reallocation under OCGA § 13-1-13 and the voluntary payment doctrine. Because the majority declines to recognize the applicable rule, I respectfully dissent from the judgment of reversal.

Decided November 23, 1999

Craig M. Frankel, for appellants.

Eastman & Apolinsky, Stephen D. Apolinsky, for appellee.

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

       BKC does not appeal the trial court’s holding that it could not recover overpayments made before the filing of this lawsuit.

       BKC paid $4,000 per month through June 1992; $4,200 per month from July 1992 through June 1993; $4,410 per month from July 1993 through July 1994; and $4,630.50 per month from August 1994 through May 1998.

       Mr. Yeazel testified that he believed BKC meant to refer to paragraph 2 of the lease amendment, instead of paragraph 3, since it was paragraph 2 that dealt with rent calculation. Gayle Cline, the author of the letter, claims that she was referring to paragraph 3 of a proposed sublease, and not to the lease or lease amendment.

       At the time it filed its complaint, BKC also filed a motion to pay all rent (including the undisputed portion) into the registry of the court, there to remain until the case was resolved. However, BKC apparently took no action to obtain a ruling on this motion during the four years this case was pending below.

       See Maddox v. Schrader, 268 Ga. 661, n. 1 (492 SE2d 521) (1997) (application of law to facts subject to de novo review); Dept. of Human Resources v. Woodruff, 234 Ga. App. 513 (507 SE2d 249) (1998).

       (Punctuation omitted.) Eaton Yale & Towne, Inc. v. Strickland, 228 Ga. 430, 434 (2) (a) (185 SE2d 923) (1971).

       (Punctuation and footnotes omitted.) Curry v. Curry, 267 Ga. 66, 67 (1) (473 SE2d 760) (1996).

       (Punctuation omitted.) Hartford Accident &c. Co. v. Walka Mountain Camp &c., 224 Ga. 194 (160 SE2d 833) (1968).

        Cheatham v. Palmer, 191 Ga. 617, 625-626 (13 SE2d 674) (1941).

       (Citation and punctuation omitted.) Hartford Accident, supra.

        Ga. Farm &c. Ins. Co. v. Wall, 242 Ga. 176, 179 (2) (249 SE2d 588) (1978).

        Weil Bros.-Cotton, Inc. v. T. E. A., Inc., 181 Ga. App. 122, 127 (1) (351 SE2d 670) (1986).

       BKC contends that there was no “mistake” since Mr. Yeazel and Wheeler both testified that they interpret the amended lease to retain the minimum monthly rent provision. This argument is disingenuous — on the one hand, BKC argues that the amendment does not mean what Yeazel and Wheeler thought it meant when they signed it; on the other hand, BKC argues that, because Yeazel and Wheeler interpret the amendment otherwise, they were not mistaken. In essence, BKC is arguing that the only type of mistake that may be corrected in a reformation action is something in the nature of a typographical error. As the Supreme Court has held, however, the term “mistake” includes an “error, arising from ignorance.” Hartford Accident, supra. Á mutual mistake occurs when the parties “intend! ] at the time of the execution of the instrument to say one thing and by mistake express! ] another, so that the instrument as written does not express the contract or intent of either of the parties.” Id. “Reformation of a written instrument will be decreed when the words that it contains do not correctly express the meaning that the parties agreed upon.” Weil Bros., supra at 127 (1). The alleged “mistake” in this case is that the language used in the amendment did not effect the parties’ agreement. The fact that the parties wrongly interpreted the effect of such language merely illustrates the mistake.

       See Garlington v. Blount, 146 Ga. 527 (1) (91 SE 553) (1917).

       Because the only issues raised by the Yeazels are whether the lease should be reformed due to a mutual mistake and whether the voluntary payment doctrine applies, we do not address the separate issue of whether the amended lease was subsequently modified by agreement or by the parties’ long course of conduct to include the minimum base rent provision.

       Although the trial court erred in entering judgment for BKC, it correctly denied summary judgment to the Yeazels on the reformation claim. While both Mr. Yeazel and Wheeler testified that it was their intent to retain the minimum monthly rent provision, the language of the amendment provides some evidence to the contrary, and the trier of fact would be authorized to disbelieve their testimony. However, this is an issue that must be considered by the trier of fact, and it is not for this Court to make an initial determination on the issue.

       42 Ga. App. 310 (155 SE 775) (1930).

       Id.

       See Rod’s Auto Finance v. Finance Co., 211 Ga. App. 63 (1) (438 SE2d 175) (1993).

       OCGA § 13-1-13. BKC’s reliance on Gulf Life Ins. Co. v. Folsom, 256 Ga. 400 (349 SE2d 368) (1986) is misplaced. In that case, the Supreme Court stated that a plaintiff generally can “recover a payment mistakenly made when that mistake was caused by his lack of diligence or his negligence in ascertaining the true facts and the other party would not be prejudiced by refunding the payment!.]” Id. at 402. In this case, however, BKC made the payments voluntarily, with actual knowledge of all the facts, and not simply due to its negligence in failing to ascertain the facts. Although BKC could arguably claim that its payments before August 1994 were made because of its negligence or lack of diligence in discovering the true facts, those payments are not at issue in this appeal.

       See Dunton, supra; West v. Brown, 165 Ga. 187 (140 SE 500) (1927).

       (Punctuation omitted.) Strachan Shipping Co. v. City of Savannah, 168 Ga. 309, 315 (3) (147 SE 555) (1929). See 70 CJS, Payment, § 108, p. 89.

       146 Ga. App. 250 (246 SE2d 684) (1978).

       (Emphasis supplied.) 70 CJS, Payment, § 108, p. 109.

       (Citations omitted.) Cooper, supra at 255-256 (2).

       OCGA § 13-1-13.

       We also note that the default notice did not inform BKC that the lease would be terminated because of the default, as required by the default provisions of the lease.

       (Punctuation omitted.) Dunton, supra at 311.

       See generally Theatre of the Stars v. Atlanta Woman’s Club, 184 Ga. App. 810 (363 SE2d 6) (1987) (tenant sought declaratory judgment that attempted termination of lease was ineffective).

        Kirk v. Hasty, 239 Ga. 362, 364 (4) (236 SE2d 667) (1977).

       Defendants concede BKC continued to make rent payments to them.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A99A1772.
    WALKER v. BURNETT.
    (526 SE2d 109)
   Eldridge, Judge.

Kenneth Walker challenges the Fulton County Superior Court’s order granting summary judgment to Russell Burnett in this legal malpractice action. We affirm because Walker has failed to show that any alleged deficiencies in Burnett’s representation of Walker caused Walker’s federal employment discrimination claim to fail.

The relevant facts of this case are as follows: Walker began working part-time for United Parcel Service, Inc. (“UPS”) in April 1984. In June 1991, Walker became a seniority package car driver; in that capacity, Walker was responsible for picking up and delivering packages. By October 1991, Walker had been cited no less than six times for failing to pick up or deliver in excess of thirty packages. Over the next few months, a UPS manager rode with Walker on several occasions and noted several deficiencies in his delivery methods. Walker repeatedly failed to comply with company standards and procedures, even after he received numerous written citations and suspensions. In September 1992, UPS terminated Walker’s employment.

Walker hired Burnett and his law partner, Paul Munger, to represent him in an employment discrimination suit under Title VII of the 1964 Civil Rights Act and 42 USC § 1981. In December 1993, Burnett filed Walker’s claim in the United States District Court, Middle District of Georgia (“District Court”). During discovery, either Burnett or Munger represented Walker in depositions of between 20 and 30 UPS employees.

UPS filed a motion for summary judgment on December 21, 1994. In his response to the motion, Burnett attached affidavits which referred repeatedly to depositions which apparently had not been filed in the District Court’s record. However, Burnett attached selected pages from the depositions to the affidavits. Even though the District Court noted that the affidavits failed to satisfy the requirements of Rule 56 (e) of the Federal Rules of Civil Procedure, the District Court did not strike them and, in fact, considered “the record as a whole” before granting UPS’s summary judgment motion.

The District Court’s analysis of the case noted that, in order to demonstrate racial discrimination under Title VII,

the plaintiff must first establish a prima facie case of disparate treatment. In situations in which a plaintiff alleges unequal application of discipline for violation of work rules, a prima facie case of disparate treatment is established by showing: (1) [pjlaintiff is a member of a protected class; and (2) that plaintiff did not violate the work rules for which he was disciplined or that he engaged in misconduct similar to that of a person outside the protected class, and that the disciplinary measures enforced against him were more severe than those enforced against the other persons who engaged in similar misconduct. Once the plaintiff has set out a prima facie case, a presumption of discrimination arises. If the plaintiff establishes a prima facie case, the burden of production would then shift to the defendant to articulate a nondiscriminatory basis for the employment action. The defendant’s burden at this point is one of production, not persuasion.

(Citations and punctuation omitted.) See also St. Mary’s Honor Center v. Hicks, 509 U. S. 502 (113 SC 2742, 125 LE2d 407) (1993); McDonnell Douglas Corp. v. Green, 411 U. S. 792, 801 (93 SC 1817, 36 LE2d 668) (1973); Meeks v. Computer Assoc. Intl., 15 F3d 1013, 1019-1021 (11th Cir. 1994); Jones v. Gerwens, 874 F2d 1534, 1538 (11th Cir. 1989). Further, if the defendant is able to rebut the inference created by the prima facie case by demonstrating a nondiscriminatory reason for its actions, the plaintiff must prove by a preponderance of evidence that the employer had a discriminatory intent or that the employer’s justification was a pretext to disguise unlawful discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 254-256 (101 SC 1089, 67 LE2d 207) (1981); McDonnell Douglas Corp. v. Green, supra at 804; Meeks v. Computer Assoc. Intl., supra; Jones v. Gerwens, supra.

After reviewing the record, the District Court found that Walker had failed to demonstrate that any similarly situated white UPS employee had received less severe discipline than Walker for the same acts. According to the court’s order,

plaintiff has a long history of service problems. Plaintiff has set forth no evidence that a white employee of UPS, performing duties similar to that of plaintiff, with as long a history of problems as plaintiff, was not disciplined to the same extent as plaintiff. As such plaintiff has failed to establish a prima facie case of disparate treatment.

Further, the District Court found that, even if Walker had been able to establish a prima facie case of disparate treatment, UPS had fulfilled its burden of articulating a “legitimate, nondiscriminatory reason for plaintiff’s discharge,” i.e., “his long history of service related problems and his inability or unwillingness to address those problems.” According to the court, Walker failed to present any evidence that he had been terminated “for any reason other than his inability to perform the basic duties required of a package car driver.” Accordingly, the court rejected Walker’s employment discrimination claim on the merits and granted summary judgment to UPS.

On January 22, 1997, Walker filed a professional malpractice suit against Burnett, alleging that Burnett’s negligent representation caused the District Court to grant summary judgment to UPS. Burnett moved for summary judgment on October 20, 1997, and the trial court granted the motion on December 12,1997. Walker appeals from this order. Held:

Walker claims that the trial court erred in granting Burnett’s summary judgment motion because a genuine factual issue exists as to whether Burnett’s representation constituted malpractice and whether this alleged malpractice caused Walker to lose his employment discrimination case.

However, in Georgia, Walker must make all of the following showings in order to recover on a legal malpractice claim: (1) employment of an attorney; (2) failure of the attorney to exercise ordinary care, skill and diligence; and (3) damages proximately caused by such failure, e.g., the loss of a meritorious case. Tante v. Herring, 264 Ga. 694 (1) (453 SE2d 686) (1994). Pretermitting whether a jury issue exists as to the first or second elements, Walker is unable to prevail on this claim because he has failed to present any evidence to raise a jury issue on the third element, proximate causation. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (therefore, his claim “tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.]”).

As to causation, the District Court’s order demonstrates that it found two bases for rejecting Walker’s discrimination claim. Neither implicated Burnett’s legal representation or alleged lack thereof.

First, the District Court found that Walker had failed to present a prima facie case of discrimination because the examples he relied upon to demonstrate disparate treatment, i.e., white employees who were allegedly treated better than Walker were not similarly situated. The District Court found that, while these employees may have had isolated instances of misconduct, none of the other package drivers had Walker’s extensive record of mishandling packages and his repeated failure to improve his performance.

Second, the District Court found that, even if Walker had been able to demonstrate disparate treatment, i.e., harsher punishment than white employees for the same mistakes, Walker’s “long history of service related problems and his inability or unwillingness to address those problems” constituted a “legitimate, nondiscriminatory reason” for his termination. As the District Court held, there was no evidence that Walker was discharged for any reason other than his chronic “inability to perform the basic duties required of a package car driver.”

In this case, Burnett was deposed by Walker and testified that there was no evidence in the depositions of UPS employees which would have changed the outcome of the discrimination case or made the claim stronger. In fact, according to Burnett, he chose not to have certain depositions transcribed because he knew, after attending the depositions, that the documents would not have contained any evidence that was favorable to Walker.

However, Walker claims that evidence existed to show disparate treatment and UPS’s discriminatory intent, but the District Court could not consider it because Burnett failed to ensure that the depositions had been filed in the record. Walker, however, has failed to include such alleged evidence in the record for this professional malpractice case. The only deposition in the record was the one Walker took of Burnett in this case. Walker’s few references to the allegedly favorable evidence of discrimination are vague and unsupported by specific evidence in the record, i.e., the depositions themselves. As such, Walker has failed to present any specific, competent evidence to rebut Burnett’s assertion that no such evidence exists. See OCGA § 9-11-56 (e); Lau’s Corp. v. Haskins, supra.

Decided November 23, 1999.

Lucinda Perry, Sonya Chachere-Compton, for appellant.

Bondurant, Mixson & Elmore, Jeffrey O. Bramlett, Michael B. Terry, Lynn M. Adam, for appellee.

Therefore, since Walker was unable to show that he would have prevailed in his employment discrimination case but for Burnett’s alleged negligence, he failed to present a prima facie case of professional malpractice. The trial court did not err in granting summary judgment to Burnett.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       Munger is not a party to this appeal.

        Walker v. United Parcel Svc., Civil Action File No. 93-CV-134-VAL.

       The analysis of employment discrimination claims under Title VII and 42 USC § 1981 is the same. Drake v. City of Fort Collins, 927 F2d 1156, 1162 (10th Cir. 1991).


author: Pope, Presiding Judge. Smith, Judge,

text:
    A99A0829.

      MAHAN v. McRAE.
    (522 SE2d 772)
   Pope, Presiding Judge.

William Franklin McRae, Jr. and Jane Newman McRae Mahan were divorced in the Superior Court of Troup County on June 28, 1996. The divorce decree awarded joint legal custody of their two boys, born in 1990 and 1992, to both parents but gave the mother primary physical custody. In August, Mahan remarried and moved from Troup County to Henry County. In response, McRae filed a petition for change of custody which was resolved in October 1996 when the parties agreed to modified visitation terms to accommodate the move. The terms were incorporated into a judgment. On March 30, 1998, McRae filed a second suit seeking change of custody after receiving notice that Mahan planned to move in June to Massachusetts with the two boys and her new family. After a bench trial, the court granted the modification and gave primary physical custody to McRae. We granted Mahan’s application for appeal in which she contends there was insufficient evidence to merit a change. The mother has custody pending resolution of this appeal, but the boys have been with their father for the summer.

“Once a permanent child custody award has been entered, the test for use by the trial court in change of custody suits is whether there has been a change of conditions affecting the welfare of the child. Gazaway v. Brackett, 241 Ga. 127, 128 (244 SE2d 238) (1978).” (Punctuation omitted.) In the Interest of S. D. J., 215 Ga. App. 779 (452 SE2d 155) (1994). See also OCGA § 19-9-3 (a); Arp v. Ham-monds, 200 Ga. App. 715, 716 (409 SE2d 275) (1991). An award of custody vests in that parent the prima facie right of continued custody. Ormandy v. Odom, 217 Ga. App. 780-781 (1) (459 SE2d 439) (1995); Hill v. Rivers, 200 Ga. 354, 357 (37 SE2d 386) (1946). “This judgment, however, is not conclusive, except as to the status existing at the time of its rendition, and is subject to a change or modification on a showing of a change in circumstances or conditions since the rendition of the decree. [Cit.]” Id.

Whether conditions, which affect the welfare of the child, have changed since the rendition of a former final custody judgment depends on the facts of the case. If reasonable evidence exists in the record to support the trial court’s decision to change custody or visitation rights, then the decision of that court will stand. Daniel v. Daniel, 235 Ga. App. 184, 185 (1) (509 SE2d 117) (1998). The trial court’s decision will not be overturned absent abuse of discretion. In the Interest of S. D. J., 215 Ga. App. at 780. “Though the trial judge is given a discretion, he is restricted to the evidence and is unauthorized to change the custody where there is no evidence to show new and material conditions that affect the welfare of the child. [Cit.]” Young v. Young, 216 Ga. 521, 522 (118 SE2d 82) (1961).

Mahan asserts that the trial court abused its discretion because the judge erroneously granted a change in custody based on her remarriage and relocation. In the Interest of R. R., 222 Ga. App. 301, 305 (3) (474 SE2d 12) (1996). We note that the court’s order states that “neither the mere fact of a move nor a remarriage is in and of itself a change of condition” and that the court’s decision was not based on either of those factors. We also note that the court found that both McRae and Mahan are good parents.

Nevertheless, we find no reasonable evidence in the record supporting the decision to change custody. The facts may reveal grounds for other relief, but they are not sufficient to warrant a change in custody. The facts support only the conclusion that McRae was thwarted in his attempt to be involved with the boys more than the custody order required, and that the parties have been almost incapable of agreeing to any variances from the custody order.

The time period under consideration was October 1996, the date of the previous custody determination, to August 25, 1998, the date of the trial. The court concluded that during this period, the father made “extraordinary efforts” to remain actively involved in his children’s lives, but found himself “increasingly marginalized,” since the mother “acted as if the children were part of her new family with her new husband, to the exclusion of any significant role in [the children’s] lives for their Father.” The court based its decision on the following findings of fact: (1) Mahan expressed resentment for McRae’s presence at the children’s baseball games on her time; (2) Mahan consistently denied McRae’s requests to allow the children to attend special events outside of court-ordered visitation time, such as basketball picture day, despite the fact that McRae sacrificed time when he was entitled to have the children so they could participate in activities they enjoyed; (3) McRae’s attempts to call the children more than once a day, though rare, were plainly unwelcome; and (4) Mahan tended to make decisions regarding the children without consulting McRae even though the existing custody order required cooperation and mutual agreement regarding important matters.

With regard to visitation, the custody order in effect at the time provided in part:

The wife shall be the primary physical custodian of the children. . . . The husband may have the children of the parties with him, apart from the wife, at such times and for such periods of time as the wife and husband shall mutually agree upon. In the event the parties cannot agree, the husband shall, at his option, have the right to have said children apart from the residence of the wife as follows. . . .

The detailed provisions for custody were then laid out. Thus, the order clearly contemplates that the divorced couple might be unable to agree on visitation, and it then establishes comprehensive minimum visitation requirements. One requirement provides, “The parties agree to allow the children telephone contact with the other parent on a daily basis.”

None of the court’s first three factual findings involves a violation of the custody agreement by Mahan. The court only found fault with Mahan’s failure to go above and beyond the minimum requirements of the order. These findings may show that Mahan does not have an appropriately flexible approach given McRae’s consistent and well-intentioned efforts to be involved with the children as much as possible. The findings may also reveal Mahan’s frustration, rightly or wrongly, at trying to balance her efforts to be a good parent with McRae’s desire to be involved. But these factors are not a reasonable basis for a change in custody.

It is true that “a pattern of continued wilful acts obviously intended to thwart and nullify the visitation provisions of the decree,” Moore v. Wiggins, 230 Ga. 51, 55 (195 SE2d 404) (1973), or “the repeated denial of the non-custodial parent’s visitation rights,” Bull v. Bull, 243 Ga. 72 (2) (252 SE2d 494) (1979), authorizes a change in custody. See also Arp v. Hammonds, 200 Ga. App. at 717-718 (father refused summertime visitation and visitation over the phone). But, the court did not find that McRae’s court-ordered visitation rights had been affected. Rather it found Mahan failed to cooperate above and beyond the court-ordered rights. We find no law nor does McRae cite any for the proposition that failure to agree to more than the court-ordered minimum visitation rights can result in a change of custody.

With regard to joint decision-making, the custody order provides:

[T]he parties shall cooperate and make every good faith effort to reach mutual agreements on all issues and decisions concerning their children, and neither party shall arbitrarily or without good reason disagree with the other in making decisions regarding said children, however the primary physical custodian shall bear responsibility for such final decisions.

Although the court found that Mahan failed to consult with McRae on important decisions for the children, a violation of the custody order, McRae did not present any evidence that her actions affected his visitation rights. Further, McRae presented no proof, nor did the court find, that any decisions made without his advice affected the welfare of the children. Without new and material conditions that substantially affect the welfare of the child, a change of custody is not authorized. Young v. Young, 216 Ga. at 522.

Finally, the court found that the children had become less independent and more “clingy” around their father. But, the court attributed these ill emotional effects to the boys’ “relative separation from their father,” and McRae testified that the changes were “associated with the thought of the possibility of having to move [to Boston].” Out-of-state moves by the custodial parent necessarily result in increased separation between the children and the non-custodial parent. But, “ [relocating and remarrying are not in and of themselves sufficient changes in condition to authorize a change in custody.” Ormandy v. Odom, 217 Ga. App. at 781 (1); In the Interest of R. R., 222 Ga. App. at 305 (3).

There is no evidence that Mahan was no longer able or suited to retain custody, Ormandy, 217 Ga. App. at 781, and because the trial court’s findings of fact do not provide a basis for a change in custody, the court erred in changing custody to the father.

Because visitation rights are a part of the trial court’s order and because McRae’s visitation rights are in issue as a result of Mahan’s move, the case is remanded for further proceedings regarding visitation rights. See Ofchus v. Isom, 239 Ga. App. 738 (521 SE2d 871) (1999) (physical precedent); see also Tirado v. Shelnutt, 159 Ga. App. 624, 626 (2) (284 SE2d 641) (1981) (physical precedent) (court with jurisdiction over custody may modify visitation rights).

Judgment reversed and remanded.

Johnson, C. J., Eldridge and Barnes, JJ., concur. Blackburn, P. J., Smith and Ellington, JJ., dissent.

Smith, Judge,

dissenting.

I respectfully dissent, because I conclude that the trial court, in a thoroughly reasoned order, acted within its discretion in awarding primary physical custody to the father.

The decision of whether to change custody after the entry of a final divorce decree rests exclusively within the discretion of the trial judge, and an appellate court’s scope of review of such a decision is severely limited. As explained in Arp v. Hammonds, 200 Ga. App. 715, 716 (409 SE2d 275) (1991), the task of a trial court faced with a change of custody suit is to determine “whether there has been a change of conditions affecting the welfare of the child.” (Citations and punctuation omitted.) The court must exercise its discretion to decide whether a change in custody is in the child’s best interest and whether a change will best promote the welfare and happiness of the child. Id. at 716-717. And

[t]his rule of law lays the Solomonic task squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility. It is that judge upon whom it is incumbent to hear evidence with respect to changed conditions and render a decision based upon that judge’s discretion and good judgment as that judge viewed the evidence, giving primary consideration to the welfare of the child. . . . Unless the record before this court clearly indicates that the judge based his or her decision upon illegal evidence or upon a misapprehension of the law, it will be presumed that upon rendering his or her decision he or she considered only legal and admissible evidence. So it is that the remote reviewing court recognizes not only the physical limitations put upon it by distance in time and space, but it also recognizes that by law it has no judgment to impose in the matter. The exercise of discretion is granted solely and exclusively to the trial judge, and if there is any reasonable evidence to support the trial court’s decision concerning change of custody as between parents, such decision will be affirmed on appeal.

(Citations and punctuation omitted; emphasis in original.) Id. at 717.

Here, nothing in the record suggests that the trial court’s decision was based on “illegal evidence” or a “misapprehension of the law,” and reasonable evidence existed on which the trial court based its conclusions. I cannot agree with the majority’s statement that “[t]he facts support only the conclusion that [the father] was thwarted in his attempt to be involved with the boys more than the custody order required, and that the parties have been almost incapable of agreeing to any variances from the custody order.” On the contrary, the facts support the trial court’s conclusion that the children suffered emotionally because of the mother’s consistent refusal to cooperate with the father’s own efforts to be actively involved in their lives, resulting in a material change of condition. For example, in addition to evidence that the children appeared to be “clingy,” evidence was presented of the children’s increased fearfulness of losing their relationship with the father and their lack of self-assurance, conditions which manifested themselves after their move to Massachusetts.

Furthermore, evidence was presented supporting the trial court’s conclusion “that the children’s best interests are served by allowing them to have the most possible contact with both parents.” As pointed out by the father in his brief on appeal, evidence was presented that the children had a large support network in the LaGrange area, including both parents’ lifelong friends as well as extended family of both the father and mother. And as noted in the report of the guardian ad litem, if the children were to reside in Georgia, the mother would enjoy the advantage, because she has relatives in LaGrange, of visiting with the children at her convenience, as opposed to the disadvantage to the father of being required to stay in a hotel and rent a car in Massachusetts, if custody was awarded to the mother. Based on these circumstances, I cannot agree with the majority that the trial court’s conclusion was unsupported by reasonable evidence. Because the trial court was the sole judge of witness demeanor and credibility and because that court’s conclusions were supported by the evidence, this court cannot substitute its judgment for that of the trial court or usurp that court’s discretion. See Arp, supra. I would affirm the decision of the trial court.

I am authorized to state that Presiding Judge Blackburn and Judge Ellington join in this dissent.

Decided November 24, 1999

Crumbley & Crumbley, R. Alex Crumbley, for appellant.

Smith, Welch, Studdard & Brittain, Benjamin W. Studdard III, Thomas B. McFarland, Kutner & Bloom, Jeanney M. Kutner, for appellee.

John R Partin, amicus curiae.

       Indeed, McRae admitted that with only two exceptions in over two years since the divorce, he got all of the visitation required by the custody order. On those two occasions, the parties disagreed about the meaning of the custody order with regard to three specific days. McRae also testified that he had spoken with the boys on the telephone almost every day since the divorce.


author: Pope, Presiding Judge.

text:
    A99A1540.
    A99A1541.
    BATTERSBY v. BOYER et al. AMERICAN HONDA MOTOR COMPANY, INC. v. BOYER et al.
    (526 SE2d 159)
   Pope, Presiding Judge.

Plaintiff Jeanne Boyer was riding as a passenger on a four-wheel all terrain vehicle operated by her thirteen-year-old son when it flipped over and landed on top of her, injuring her back. She and her husband (plaintiffs) filed a product liability action based on negligence, strict liability and breach of warranty against the manufacturer of the vehicle, American Honda Motor Company, Inc. and Honda Motor Company, LED and the seller of the vehicle, Eric Bat-tersby d/b/a Cherokee Cycle ATV & Small Engines, seeking damages for her personal injuries and his loss of consortium. Both Honda and Battersby filed motions for summary judgment, and in separate orders, the trial court granted partial summary judgment to both defendants. We granted defendants’ applications for interlocutory review; Battersby’s case was docketed in this court as Case No. A99A1540, and Honda’s case was docketed in this court as Case No. A99A1541.

Case No. A99A1540

1. The record shows that plaintiffs purchased the used ATV for their 13-year-old son from defendant Battersby. The trial court granted summary judgment to Battersby on plaintiffs’ strict liability and failure to warn claims, but denied summary judgment to Bat-tersby on plaintiffs’ breach of warranty claims. Battersby contends the trial court erred because the trial court specifically found that plaintiffs had failed to present evidence that the ATV was defective, and plaintiffs must show that the ATV was defective to maintain an action for breach of an implied warranty under OCGA § 11-2-314. Ream Tool Co. v. Newton, 209 Ga. App. 226, 229 (4) (433 SE2d 67) (1993); see also Jones v. Marcus, 217 Ga. App. 372, 373 (1) (457 SE2d 271) (1995). We agree that the trial court erred in denying Battersby summary judgment on this claim. Merchantable goods are defined in OCGA § 11-2-314 (2) (c) as goods which “[a]re fit for the ordinary purposes for which such goods are used.” See also Moore v. Berry, 217 Ga. App. 697, 698 (1) (458 SE2d 879) (1995). “Where there is evidence of a defect in the goods which renders them unfit for the ordinary purposes for which such goods are used, the vendor may be held liable under the [Uniform Commercial Code].” (Citation and punctuation omitted.) Dixon Dairy Farms v. Conagra Feed Co., 239 Ga. App. 233, 235 (1) (519 SE2d 729) (1999). Plaintiffs presented no evidence that the ATV was unfit or unsafe for only one rider. And there is also no evidence that Battersby knew that plaintiffs intended to operate the vehicle with a passenger. See OCGA § 11-2-315; Jones v. Marcus, 217 Ga. App. at 373-374 (3). Battersby was entitled to summary judgment on plaintiffs’ breach of warranty claims. Accordingly, the trial court’s order in Case No. A99A1540 is reversed.

Case No. A99A1S41

2. Finding that the plaintiffs “failed to set forth specific facts showing a defect in the design, manufacture or assembly of the all terrain vehicle in question” the trial court granted summary judgment to Honda on plaintiffs’ claim of strict liability, but denied Honda’s motion for summary judgment on plaintiffs’ failure to warn claim, finding an issue of fact remained concerning whether the warning Honda placed on the vehicle was adequate. Honda argues that the trial court erred in denying it summary judgment on the failure to warn claim because plaintiffs presented no evidence of a foreseeable danger that it had a duty to warn against. But Honda had already placed a warning on the vehicle warning of the danger of operating the vehicle with a passenger. Plaintiffs were not required to show that the product needed a warning that the vehicle was dangerous when operated with a passenger because the manufacturer had already made that determination.

3. Honda next argues the trial court’s failure to grant it summary judgment on the failure to warn claim was inconsistent with the finding that the ATV was not defectively designed, manufactured, and assembled. We disagree. In its order the trial court properly distinguished plaintiffs’ claims based on strict liability and negligent failure to warn. “Georgia law has long recognized [a distinction] between negligence and strict liability theories of liability.” Banks v. ICI Americas, 264 Ga. 732, 735, n. 3 (450 SE2d 671) (1994) and cits. These are separate and distinct claims arising from different duties owed by the manufacturer to consumers.

The distinction between these causes of action reflects the different duties that devolve upon manufacturers. While a manufacturer has a duty to exercise reasonable care in manufacturing its products so as to make products that are reasonably safe for intended or foreseeable uses, the manufacturer of a product which, to its actual or constructive knowledge, involves danger to users, has a duty to give warning of such danger. Breach of these different duties hence gives rise to separate and distinct claims.

(Citations and punctuation omitted.) Chrysler Corp. v. Batten, 264 Ga. 723, 724 (1) (450 SE2d 208) (1994). Zeigler v. Clowhite, 234 Ga. App. 627, 629 (2) (507 SE2d 182) (1998). Thus, a duty to warn can arise even if a product is not defective.

A product is not in a defective condition when it is safe for normal handing and consumption. If the injury results from abnormal handling!,] the seller is not liable. Where, however, he has reason to anticipate that danger may result from a particular use!,] he may be required to give adequate warning of the danger!,] and a product sold without such warning is in a defective condition. However, there is no duty resting upon a manufacturer or seller to warn of a product-connected danger which is obvious or generally known. The same rule applies where it appears that the person using the product should know of the danger, or should in using the product discover the danger. Whether a duty to warn exists thus depends upon [the] foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. Such matters generally are not susceptible of summary adjudication and should be resolved by a trial in the ordinary manner.

(Citation and punctuation omitted.) Yaeger v. Stith Equip. Co., 177 Ga. App. 835, 836 (341 SE2d 492) (1986). See also Zeigler v. Clowhite, 234 Ga. App. at 629 (2).

4. Lastly, Honda argues that the trial court’s finding that an issue of fact remains concerning the adequacy of the warning placed on the ATV is inconsistent with the trial court’s finding that Bat-tersby had no duty to warn of the dangers of riding the ATV with a passenger because Honda had already warned of that danger. Again, however, the trial court’s order is not inconsistent, but merely reflects the differing duties devolving upon manufacturers and sellers of products. We have previously held that a seller’s duty to warn consumers of a particular danger associated with the use of a product may be extinguished when the manufacturer has already warned consumers of the particular danger at issue. Farmer v. Brannan Auto Parts, 231 Ga. App. 353 (498 SE2d 583) (1998). Although a seller in this position may be “entitled to assume that the manufacturer has done its duty,” Hester v. Human, 211 Ga. App. 351, 353 (3) (439 SE2d 50) (1993), this means only that the seller in that circumstance does not have to second-guess whether the manufacturer’s warning was adequate. But the consumer’s challenge to the adequacy of the manufacturer’s warning is not foreclosed.

Decided November 24, 1999.

Chambers, Mabry, McClelland & Brooks, Edwin L. Hamilton, Christopher K. Annunziata, for appellant (case no. A99A1540).

“It is ... a jury question whether or not the manufacturer was negligent in failing to place a warning in such position, color and size print or to use symbols which would call the user’s attention to the warning or cause the user to be more likely to read the label and warning than not.” (Emphasis supplied.) Eldridge’s Georgia Products Liability, Theories of Negligence, § 2-24, p. 49. Where a duty to warn arises, . . . “(t)his duty may be breached by (1) failing to adequately communicate the warning to the ultimate user or (2) failing to provide an adequate warning of the product’s potential risks.” Thornton v. E. I. Du Pont &c. Co., 22 F3d 284, 289 (12, 13) (11th Cir. [1994]).

Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 75 (1) (460 SE2d 532) (1995). The trial court did not err in finding an issue of fact remained concerning the adequacy of the warning Honda placed on the ATV; accordingly the judgment in Case No. A99A1541 is affirmed.

Judgment affirmed in Case No. A99A1541. Judgment reversed in Case No. A99A1540.

Smith and Eldridge, JJ., concur.

Whelchel, Brown, Readdick & Bumgartner, Richard A. Brown, Jr., for appellant (case no. A99A1541).

William M. Ordway, for appellees.

       Plaintiffs have not appealed the adverse portions of the trial court’s orders, and we therefore render no opinion on the propriety of those rulings.

       The following warning appeared on the back of the seat of the ATV: “Warning — Operator Only — No Passengers.”

       In Hester, 211 Ga. App. at 354, we found that the seller’s duty to warn “is governed by the same principles which relate to distribution of the [product] itself” meaning that when the seller knows of no defects in the equipment, it is entitled to assume that the equipment was properly manufactured and not defective when placed on the market by the manufacturer.


author: Ellington, Judge.

text:
    A99A1616.
    A99A1617.
    DEPARTMENT OF LABOR v. BALDWIN COUNTY HOSPITAL AUTHORITY et al. BARRY v. BALDWIN COUNTY HOSPITAL AUTHORITY et al.
    (526 SE2d 153)
   Ellington, Judge.

In January 1993, William Barry began employment as a “PRN,” an on-call, as-needed nurse, at Oconee Regional Hospital. Barry filed a claim for unemployment compensation benefits in July 1997 which was denied by the claim examiner. Barry appealed that decision, and a hearing was held in September 1997. The hearing officer reversed the claim examiner’s decision and awarded Barry benefits. The Board of Review, with one member dissenting, upheld that determination on appeal. In December 1997, the hospital appealed the board’s decision to superior court. The court reversed the award of benefits. We granted applications for discretionary appeal of the Georgia Department of Labor and Barry to determine whether an as-needed nurse is entitled to unemployment benefits under Georgia’s Employment Security Law. The cases have been consolidated for this opinion. For the following reasons, we affirm the denial of benefits.

The “any evidence” standard applies to our review of the Department of Labor’s factual findings, though we review its legal conclusions. Holstein v. North Chem. Co., 194 Ga. App. 546, 547-548 (3) (390 SE2d 910) (1990).

In order to qualify for unemployment benefits according to the Employment Security Act, an employee must be “unemployed.” An individual is deemed unemployed “in any week during which the individual performs no services and with respect to which no wages are payable to him or her or in any week of less than full-time work if his or her deductible earnings do not equal or exceed his or her weekly benefit amount.” OCGA § 34-8-47.

This Court has not interpreted the Employment Security Act as it relates to as-needed nurses, but has interpreted the Act in a case involving similar facts concerning substitute teachers in Campbell v. Poythress, 216 Ga. App. 834 (456 SE2d 110) (1995). The Court concluded that the award of benefits for deliberate part-time-only work would be contrary to the basic purpose of the law as stated in OCGA § 34-8-2, which is to enhance stable employment and lighten the burden of involuntary unemployment. Id. at 835. The individual who of his own choice opts for part-time employment of a highly unstable nature would hardly appear to be involuntarily unemployed during the obviously contemplated intervals between calls. Id.

Decided November 24, 1999

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Susan L. Rutherford, Senior Assistant Attorney General, Kimberly B. Lewis, Assistant Attorney General, for appellant (case no. A99A1616).

Howard G. Sokol, Phyllis J. Holmen, Lisa J. Krisher, Mary I. Dickerson, for appellant (case no. A99A1617).

Jones, Cork & Miller, William T. Prescott, W. Warren Plowden, Jr., W. Kerry Howell, for appellees.

There are many similarities between this case and Campbell. Both cases involve an employee who was called only on an as-needed basis. There was no contractual duty on behalf of the employers to guarantee a certain number of hours, or any hours at all. There was no duty on behalf of the employee to work a certain number of hours. In both cases the employee could accept or reject the hours offered and accept work from another employer at his option. As in Campbell, the record in this case indicates that Barry did reject work hours.

The trial court determined that the rule of Campbell applied to the facts of this case. We agree. Barry voluntarily chose part-time, intermittent employment which allowed him to retain complete control over the number of hours that he worked at the hospital, if he chose to work at all. He cannot now claim that he is entitled to unemployment benefits during times when no work is offered. It would be contrary to the purpose of the Act as stated in OCGA § 34-8-2 to find Barry involuntarily unemployed.

Judgment affirmed.

Andrews, P. J., and Ruffin, J, concur.


text:
    A99A2090.
    AKINS v. THE STATE.
    (526 SE2d 157)
   Ellington, Judge.

Allen D. Akins was convicted after a jury trial of two counts of child molestation, OCGA § 16-6-4 (a). He was acquitted of one count of aggravated child molestation, OCGA § 16-6-4 (c). He appeals from the denial of his motion for new trial, raising two enumerations of error: the sufficiency of the evidence, and the exclusion of testimony that one of the victims had behavioral problems at school. For the following reasons, we affirm.

1. Akins challenges the sufficiency of the evidence.
On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Akins] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The . . . verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Viewed in this light, the record reveals the following:

On at least four separate occasions, Akins had his twelve-year-old daughter, A. A., pull down her pants, then rubbed lotion on her thighs and vaginal area with his hand, and then rubbed his penis back and forth between her legs. On two separate occasions, Akins rubbed lotion on the vaginal area of his nine-year-old stepdaughter, K. W., and on one of those occasions also had her touch his penis with her hand. On one occasion, Akins had K. W. watch an adult movie with him and rubbed his hand on her vaginal area.

We are satisfied that the evidence was sufficient for a rational trier of fact to find Akins guilty of molesting A. A. and K. W. beyond a reasonable doubt under the standard set forth in Jackson v. Virginia, supra. See Smith v. State, 210 Ga. App. 634, 635 (2) (437 SE2d 333) (1993). Akins argues that the evidence is insufficient because the medical examination of A. A. was “ambiguous and nonconclusive” and the medical examination of K. W. provided no evidence of abuse. But the medical findings did not rule out the specific acts of molestation of which Akins was convicted.

Akins further argues that A. A. had a motive to lie, specifically that she wanted to go live with her mother, and had lied in the past. The resolution of inconsistencies or conflicts in the evidence is a matter for the jury. This Court does not reweigh the evidence or determine the credibility of witnesses, but considers only the sufficiency of the evidence. See Cofield v. State, 216 Ga. App. 623, 625 (455 SE2d 342) (1995).

2. Akins contends that the trial court erred in excluding the testimony of the assistant principal of A. A.’s school, generally to the effect that A. A. had behavioral problems and specifically that she stole money from a teacher’s purse and initially lied and denied it. The State objected to the testimony as being cumulative in that A. A. had already admitted to the stealing incident in her testimony and K. W. had testified that A. A. told her to lie. The trial court sustained the objection, finding that the testimony would be irrelevant as to the general proposition that A. A. was a behavioral problem and cumulative as to the specifics. The trial court’s ruling was not clearly erroneous. Lively v. State, 157 Ga. App. 419 (2) (278 SE2d 67) (1981).

Decided November 24, 1999.

Gale & Henley, Teddy L. Henley, for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J, and Ruffin, J., concur.


text:
    A99A2114.
    BOWERS v. THE STATE.
    (526 SE2d 163)
   Ellington, Judge.

Jimmy Bowers, Sr. was convicted following a jury trial of cruelty to children in the first degree, OCGA § 16-5-70 (b), for beating his daughter with a belt, and of family violence battery, OCGA § 16-5-23.1 (f), for striking his son in the face. He appeals from the denial of his motion for new trial, arguing the general grounds and claiming the trial court erred in admitting certain evidence. For the following reasons, we affirm.

Viewed in the light most favorable to support the verdict, the record reveals that on July 13, 1999, Bowers twice struck his 12-year-old son J. B. on the face. The blow was of a force sufficient to knock J. B. down and to leave a hand-shaped bruise that was visible days later when the police began their investigation. On July 14, 1999, Bowers beat his seven-year-old daughter, H. B., at least fifteen times with a metal-studded leather belt. The beating left H. B.’s legs and abdomen bruised, and the belt’s metal studs marked her flesh with bleeding welts. J. B. and another sister, S. B., heard H. B. screaming and crying during the beating. As Bowers beat H. B., he called her a bitch, a whore, and a prostitute. S. B. also observed after the beating that H. B.’s bloody nightgown stuck to her and the bed upon which she sat. J. B., H. B., S. B., a neighbor, Bower’s common-law wife, Bower’s wife’s aunt, a uniformed officer, the investigating detective, and a caseworker with the Department of Family & Children Services testified against Bowers at trial. The State introduced photographs depicting the extent of the children’s injuries. Bowers testified and admitted striking J. B. and beating H. B., explaining that he was disciplining them. He conceded, however, that he believed that punishing the children by bruising them as he did was excessive, malicious, and cruel.

1. The State charged Bowers in Count 1 of the indictment with cruelty to children for beating H. B. A person commits the offense of cruelty to children in the first degree when he or she maliciously causes a child under the age of 18 cruel or excessive physical or mental pain. OCGA § 16-5-70 (b). To prove the crime, the State must present evidence establishing the child’s age, that the child suffered physical or mental pain, that the pain was cruel or excessive, that the defendant caused the pain, and that the defendant acted maliciously in so doing. Hopkins v. State, 209 Ga. App. 376, 377 (1) (434 SE2d 74) (1993).

The beating Bowers gave seven-year-old H. B. caused her pain and suffering. Bowers admitted the punishment was cruel and excessive, and the jury was certainly authorized to infer such a finding from the physical and testimonial evidence adduced. Also, although Bowers testified he did not intend to harm H. B., the jury was authorized to find the beating malicious. Malice means the absence of justification or excuse and either an actual intent to cause the particular harm produced or the wanton and wilful doing of the act with an awareness of the plain and strong likelihood that harm may result. Sims v. State, 234 Ga. App. 678, 681 (1) (b) (507 SE2d 845) (1998). We find no evidence in the record indicating that this beating was justified or that Bowers could not appreciate the harmful consequences of his actions. The evidence was sufficient to support the conviction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Mitchell v. State, 233 Ga. App. 92-93 (1) (503 SE2d 293) (1998).

In Count 2 of the indictment, the State charged Bowers with family violence battery for intentionally causing visible bodily harm to J. B. by striking him on the face. To prove family violence battery as alleged, the State was required to present evidence that J. B. and Bowers were family members and that Bowers intentionally caused substantial or visible bodily harm to J. B. by striking him in the face. OCGA § 16-5-23.1 (a), (b), and (f). Bowers admitted striking his son in the face, and the photographic evidence revealed visible bodily harm in that J. B.’s face had substantial bruising. The evidence was sufficient to support the conviction under the standard of Jackson v. Virginia, supra. See Meja v. State, 232 Ga. App. 548, 549 (1) (502 SE2d 484) (1998).

2. Bowers complains that the trial court erred by allowing the prosecutor to ask him about his normal disciplinary procedures, specifically, how many times he would strike a child with a belt as punishment. Although Bowers’ counsel said during a sidebar conference that he would object to that line of questioning, he failed to ask for a continuing objection or to make a contemporaneous objection to the question when it was actually posed. This allegation of error, therefore, was not preserved for our review. Smith v. State, 237 Ga. App. 616, 619-620 (3) (516 SE2d 319) (1999).

3. Bowers argues the trial court erred in admitting over objection his wife’s testimony that she warned J. B. to keep silent about his injuries because his father could go to jail. Bowers argues this testimony was inadmissible hearsay. We disagree. “Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1 (a). Here, the witness was the declarant. These were her own statements made in an attempt to dissuade J. B. from disclosing his injuries. Her statements were not dependent upon the competency and veracity of other persons. See Burroughs v. State, 190 Ga. App. 467, 470 (1) (b) (379 SE2d 175) (1989).

4. Bowers complains that the trial court impermissibly limited his right to a thorough and sifting cross-examination. The State objected to Bowers asking his wife what form of punishment she uses on the children, arguing that her methods of discipline were irrelevant to whether Bowers’ discipline in this case was appropriate. The court sustained the objection and advised Bowers that while her disciplinary methods were not relevant, she was certainly competent to give her opinion of the discipline she saw Bowers impose. And Bowers did follow that line of questioning at length. “The trial court may restrict the scope of the cross-examination to matters relevant to the issues being tried, and the results of the exercise of that discretion will not be interfered with on appellate review unless the discretion was manifestly abused.” (Citation and punctuation omitted.) Wheeler v. State, 212 Ga. App. 638, 639 (2) (442 SE2d 906) (1994). Under the circumstances, we find no abuse of discretion.

5. Bowers argues that the trial court erred in allowing the State to impeach him with improper character evidence. Bowers testified falsely on direct examination that he and his children had lived together continuously for the past seven years. On cross-examination, the State elicited testimony from Bowers that the children were taken away from him by DFACS for a 16-month period of time because the children had been neglected. When Bowers finally made an objection based upon character, the court directed the State to move on. Bowers, however, insisted upon explaining the circumstances of DFACS’ action and did so without any further objection from his counsel. The prohibition against the State’s introduction of character evidence unless and until the defendant places his own character into issue does not preclude the use of evidence to disprove facts testified to by the defendant. Francis v. State, 266 Ga. 69, 71 (2) (463 SE2d 859) (1995). The State is permitted to rebut statements of a defendant who testified at trial by disproving the facts to which the defendant testified. Bounds v. State, 207 Ga. App. 665, 666 (428 SE2d 673) (1993). We find no error.

Decided November 29, 1999.

Michael A. Corbin, for appellant.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J, and Ruffin, J., concur.


text:
    A99A0880.
    FRAZIER v. THE STATE.
    (524 SE2d 768)
   Ellington, Judge.

Following a jury trial, David Frazier was convicted of two counts of child molestation. OCGA § 16-6-4. On appeal, Frazier contends the trial court erred in admitting sexually explicit material possessed or authored by him and by failing to merge his convictions at sentencing.

Viewed in the light most favorable to support the verdict, the evidence shows that Frazier lived with an adult woman and her four-year-old daughter. According to the child’s testimony, Frazier exposed his penis to the child while he was babysitting her. He then told the child to get some lotion from another room, and, upon her return, he had her put the lotion on his penis with her hand. The State introduced similar transaction evidence that showed Frazier later married another woman and also molested her daughter, T. P. Regarding the first child, the jury convicted him of two counts of child molestation (exposing his penis and placing his penis in her hand). The jury acquitted him of a third count, aggravated child molestation, in which Frazier was charged with placing his penis in the victim’s mouth.

1. The State gave notice it intended to introduce certain evidence of Frazier’s “lustful disposition,” specifically (1) Frazier’s possession of pornographic videotapes and sexual toys used with his wife, (2) Frazier’s unfulfilled wedding night request to his wife for an adult group masturbation session, and (3) his pre-nuptial letter to his wife making explicit sexual requests of her. Following a pre-trial hearing, the trial court ruled it would allow the evidence. When the evidence came in, the court gave no contemporaneous limiting instruction. During its concluding charge on the law, the trial court instructed the jury:

Evidence that the Defendant was found to be in possession of pornographic material can be considered by you, the jury, as proof of the Defendant’s bent of mind toward the sexual activity with which he was charged, or as proof of the Defendant’s lustful disposition.

The case law has been “unclear and unsettled” as to the admissibility in a prosecution for a sexual offense of “physical evidence of a sexual nature, such as writings, drawings, photographs, or paraphernalia connected with the defendant.” Simpson v. State, 271 Ga. 772 (523 SE2d 320) (1999). In Simpson, the Supreme Court of Georgia recently disapproved admitting evidence of a defendant’s possession of sexually explicit material for the sole purpose of showing defendant’s “lustful disposition” or “bent of mind” toward sexual activity in general. Id. The Supreme Court put forth this clear and cogent rule:

In a prosecution for a sexual offense, evidence of sexual paraphernalia found in defendant’s possession is inadmissible unless it shows defendant’s lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity. Under this rule, sexually explicit material cannot be introduced merely to show a defendant’s interest in sexual activity. It can only be admitted if it can be linked to the crime charged.

Id. at 774 (1).

In this case, the sexually explicit material was offered for the purpose of showing Frazier’s lustful disposition in general and was not linked to the crime charged. None of the materials depicted or referred to the sexual activity with which Frazier was charged, that is, sexual contact with a child. Cf. Touchton v. State, 210 Ga. App. 700, 701 (2) (437 SE2d 370) (1993) (previous involvement in sending and receiving child pornography). Further, none of the materials were otherwise linked to the crime charged, for example, by being shown to the child victim. Cf. Altman v. State, 229 Ga. App. 769, 771 (4) (495 SE2d 106) (1997) (pornographic videotape shown to child victim). The trial court’s charge to the jury specifically authorized the jury to consider the evidence solely as evidence of Frazier’s lustful disposition. The clear rule announced by the Supreme Court in Simpson, supra, dictates the conclusion that the trial court erred in admitting evidence going only to proving Frazier’s lustful disposition.

Furthermore, even though the State presented a substantial amount of inculpatory evidence, we are precluded under the circumstances from holding that the error was harmless. First, the State offered no physical evidence that Frazier committed the crime charged. Secondly, Frazier presented two alibi witnesses who testified that he was not present at the child’s residence when the acts were to have taken place. Finally, Frazier waived his constitutional right not to testify on his own behalf and denied having committed the charged acts. “Thus, the jury was required to decide between the credibility of the State’s inculpatory evidence and the credibility of [Frazier’s] exculpatory testimony.” Higginbotham v. State, 207 Ga. App. 424, 427 (4) (428 SE2d 592) (1993). As a matter of Georgia law, the harmless error or overwhelming evidence analysis does not apply under these circumstances. Ricks v. State, 217 Ga. App. 666, 667 (1) (458 SE2d 862) (1995) (where defendant denied crime and two alibi witnesses testified in defendant’s favor, harmless error cannot be shown); White v. State, 213 Ga. App. 429, 431 (1) (445 SE2d 309) (1994) (lack of physical evidence plus defendant’s denial prevented, as a matter of law, a finding of overwhelming evidence); Higginbot-ham, 207 Ga. App. at 427 (4) (defendant’s denial during trial testimony alone prevented a finding of harmless error, even though he recanted an inculpatory statement). Because it cannot be said with any degree of certainty that the erroneous admission of the lustful disposition evidence did not have any prejudicial effect on the jury’s determination as to Frazier’s credibility and, consequently, on the jury’s determination as to his guilt, a new trial is required. Id.

Decided November 8, 1999.

Virginia W. Tinkler, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

2. Frazier contends he could not be sentenced for both counts of child molestation because Count 2 (exposing his penis) merged into Count 3 (placing his penis in the victim’s hand). But where the indictment alleges a different set of facts for each count, the State may on conviction punish the defendant for both counts. Smith v. State, 160 Ga. App. 26, 28-29 (4) (285 SE2d 749) (1981); compare Hil-liard v. State, 193 Ga. App. 54 (1) (387 SE2d 21) (1989) (description of defendant’s conduct was identical for each molestation count; only one sentence allowed). The indictment alleged and the evidence showed different facts for each count.

3. The other enumerations of error are moot or not likely to rechr on retrial.

Judgment reversed.

Blackburn, P. J., and Barnes, J., concur.