author:
McMurray, Presiding Judge.
      Andrews, Judge,

text:
    A95A2304.
    EARLEY v. DYSON et al.
    (469 SE2d 841)
   McMurray, Presiding Judge.

Plaintiff Arletha Earley, as next friend of Shawn Earley, appeals from the trial court’s dismissal of this tort action as against defendant Thomas Dyson, Jr. on the ground of insufficient service of process.

David A. Smith, the court-appointed process server, delivered a copy of the summons and complaint to “Thomas Dyson, Sr. (father of 1st Def.) at 2211 Windsor Spring Road, Augusta, GA.” In support of his motion to dismiss, defendant Thomas Dyson, Jr. submitted the affidavits of his father, Thomas Dyson, Sr. and his brother, Stanley Specks, who each deposed only that “Thomas Dyson, Jr. is an adult living elsewhere other than ... at 2211 Windsor Spring Road, Augusta, Georgia.” Stanley Specks did, however, testify at his deposition that his understanding was that defendant Thomas Dyson, Jr. “wanted all his mail to come there and — because he didn’t have a permanent address.” Stanley Specks also testified: “If Thomas came by then, yeah. If he came by for his mail I’ll give him his mail.” Plaintiff opposed the motion with evidence that on April 15, 1994, defendant Thomas Dyson, Jr. testified under oath that he lived at “2211 Windsor Spring Road, . . . [with his] mother and . . . father and . . . two brothers.” Defendant also gave 2211 Windsor Spring Road as his “home address . . .” to Don Moore in a recorded statement. David A. Smith, the special process server, gave a subsequent affidavit, wherein he deposed that, on January 28, 1995, Thomas Dyson, Sr. stated in his presence that “Thomas Dyson, Jr. resided at 2211 Windsor Springs [sic] Road. . . .” David A. Smith further deposed that “in a related action, the undersigned did earlier serve Thomas Dyson, Jr. at 2211 Windsor Springs [sic] Road.”

The trial court concluded that 2211 Windsor Spring is not the usual place of abode or dwelling house of defendant Thomas Dyson, Jr. and dismissed the case. This appeal followed. Held:

If 2211 Windsor Spring Road were defendant Thomas Dyson, Jr.’s dwelling house or usual place of abode on January 28, 1995, then service of process on his father at that address was sufficient under OCGA § 9-11-4 (d) (7). “When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service. The return ‘can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.’ Denham v. Jones, 96 Ga. 130, 132 (23 SE 78) (1895); Norman Service Industries v. Lusty, 168 Ga. App. 164, 165 (308 SE2d 411) (1983).” Patterson v. Coleman, 252 Ga. 152 (311 SE2d 838). “ ‘Where, as in this case, the trial court sat as the trier of jurisdictional issues of fact, absent legal error an appellate court is without jurisdiction to overturn factual findings supported by some evidence. . . .’ Ga. Power Co. v. Harrison, 253 Ga. 212, 216 (318 SE2d 306) (1984).” Wahnschaff v. Erdman, 216 Ga. App. 355, 356 (454 SE2d 213).

In our view, the case sub judice may not be reviewed simply under an “any evidence” standard because defendant Thomas Dyson, Jr. made an admission against interest which was not overcome by the strongest clear and convincing evidence of which the case will admit, in support of his motion to dismiss. Defendant Thomas Dyson, Jr.’s April 15, 1994, sworn positive statement of his residence amounts to an evidentiary admission against interest and the onus was then on defendant to explain or deny the substance of that admission. Foster v. State, 157 Ga. App. 554, 556 (278 SE2d 136). But in the case sub judice, defendant’s subsequent affidavit evidence is silent on the substance of that evidentiary admission against interest and conspicuously fails to state affirmatively where his dwelling place or usual abode was, if other than the place he had previously sworn to. Rather, his evidence is all negative. Specifically, defendant proffered the affidavits of his father, Thomas A. Dyson, Sr. and defendant’s brother Stanley Specks, who each deposed only that “Thomas A. Dyson, Jr. is an adult living elsewhere other than ... at 2211 Windsor Spring Road, Augusta, Georgia.”

“There exists a rebuttable presumption of continuity that [one’s] residence, having been duly established, is presumed to continue until the contrary is established. [Cits.]” Sandifer v. Long Investors, 211 Ga. App. 757, 759 (2) (d) (440 SE2d 479). In the case sub judice, this evidentiary presumption is established by defendant’s sworn deposition testimony and is supported by the additional presumption that the “entry furnishes a high rank of evidence, very strong evidence of the fact of service; and the law requires the very strongest evidence to overcome the effect of such entry.” Denham v. Jones, 96 Ga. 130, 131, supra. In the case sub judice, we do not have a mere conflict in the evidence. The evidence conflicting with the presumption of continuity and the presumption in favor of the return of service is impeached by defendant’s contradictory sworn deposition testimony. In our opinion, defendant’s evidence thus impeached is not, as a matter of law, the strongest available clear and convincing evidence that the return of service was false or that the presumption of continuity has been overcome. The trial court’s conclusion that 2211 Windsor Spring Road “is not the usual place of abode or dwelling house of Thomas Dyson, Jr.,” is clearly erroneous in that it is wholly unsupported by the evidentiary posture of the record before us. Consequently, we reverse the dismissal based on insufficiency of service of process.

Judgment reversed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Johnson, Blackburn, Smith and Ruffin, JJ., concur. Andrews, J., dissents.

Andrews, Judge,

dissenting.

Because I believe there was sufficient evidence to overcome the presumption in favor of the entry of service, I respectfully dissent. In support of her contention that the trial court erred in finding Dyson was not personally served, Early submits the entry of service and the process server’s affidavit stating that he served Thomas Dyson, Sr., who told him that Dyson, Jr., resided at that address. Also, the evidence shows that on April 15, 1994, more than nine months before he was served in the instant case, defendant Dyson gave his address as 2211 Windsor Spring Road in a deposition taken in a separate case.

While there is a rebuttable presumption of continuity of residence, this presumption only exists until evidence is introduced to the contrary. See Esco v. Jackson, 185 Ga. App. 901, 906 (366 SE2d 309) (1988). Further, while the return of service constituted prima facie evidence that personal service was made upon Dyson, the affidavits and deposition testimony submitted by Dyson “created a factual dispute to be resolved by the factfinder, the trial court.” Terrell v. Porter, 189 Ga. App. 778 (1) (377 SE2d 540) (1989). In addition, the affidavits and depositions of Dyson’s father and brother, both of whom reside at the Windsor Spring Road address, do constitute “the very strongest evidence” necessary to overcome the entry of service. Denham v. Jones, 96 Ga. 130, 131 (23 SE 78) (1895).

The evidence adduced from the depositions of Dyson’s father and brother, Stanley Specks, was that, in 1992, Dyson and his father had a disagreement and Dyson, Sr., told his son “to hit the street.” Specks testified that the reason Dyson would have given the Windsor Spring Road house as his address was because, for a period of time after his father threw him out of the house, he continued to have his mail sent there. Specks testified that Dyson, Sr., became angry when he realized Dyson was having bills sent to the house and, after an incident involving a pager bill, Dyson stopped coming by the house and there was no more mail addressed to Dyson sent to the house. Specks further testified that, as far as he knew, Dyson did not work and stayed mostly with friends, thus explaining Dyson’s failure to give another address.

In light of the above, I find the affidavits and depositions submitted by Dyson disputing the allegations in the return of service were based on the direct personal knowledge of the affiants and thus were sufficient to carry the burden of overcoming the prima facie presumption that service was properly made. See Yelle v. U. S. Suburban Press, 216 Ga. App. 46, 47 (453 SE2d 108) (1995). Since Earley came forward with no additional evidence, “the affidavits . . . were uncontradicted and were direct, personal evidence that service was not accomplished in accordance with the requirements of OCGA § 9-11-4 (d) (7).” Id. Accordingly, the trial court correctly found there was no personal service. As this Court is without jurisdiction to overturn these types of factual findings when supported by some evidence, I must dissent from the majority’s decision to reverse the judgment of the trial court. Ga. Power Co. v. Harrison, 253 Ga. 212, 216 (318 SE2d 306) (1984); Wahnschaff v. Erdman, 216 Ga. App. 355, 356 (454 SE2d 213) (1995).

Decided March 12, 1996.

Bell & Bell, David B. Bell, for appellant.

Glover & Blount, Percy J. Blount, for appellees.


source: Caselaw Access Project

author: Pope, Presiding Judge. Blackburn, Judge, Beasley, Chief Judge, dissenting.

license: Public Domain

text:
    A95A2454.
    DANIEL et al. v. CAUSEY et al.
    (469 SE2d 839)
   Pope, Presiding Judge.

In this medical malpractice action which was voluntarily dismissed and renewed, defendants (an individual doctor and his professional association) appeal a jury verdict for plaintiffs which included an award of $500,000 in punitive damages. In six enumerations of error defendants raise four issues, challenging the trial court’s (1) denial of their motion to open default; (2) denial of their motion for a certificate of immediate review; (3) admission of evidence relating to liability in a trial limited to ascertaining damages; and (4) award of pre-judgment interest. Concluding that none of defendants’ arguments is meritorious, we affirm.

1. Although defendants were served with the renewed complaint, they assumed it was part of the prior action and that their attorneys would handle it. But their attorneys failed to answer the renewed complaint, the case went into default, and the trial court denied their motion to open the default. Defendants contend that this denial was error, since it was not unreasonable for them to rely on their lawyers. We have held, however, that “ ‘[t]he neglect of the attorney was the neglect of the client, and furnished no reason for setting aside the judgment.’ [Cits.]” U. S. Xpress v. Askew & Co., 194 Ga. App. 730 (391 SE2d 707) (1990).

Additionally, even if a party has met all the prerequisites for opening a default under OCGA § 9-11-55 (b), the trial court has broad discretion in deciding whether or not to open the default, and its decision not to open a default — like its decision to open a default — will not be interfered with unless that discretion is manifestly abused. See id. at 730-731. The trial court’s discretion was not abused here. Defendants’ reliance on Colonial Penn Life Ins. Co. v. Market Plan ners Ins. Agency, 209 Ga. App. 562 (434 SE2d 124) (1993), is misplaced. In Colonial Penn the defendant failed to answer a complaint because a substantially identical complaint was already pending in another jurisdiction and he thought he had already answered the Georgia complaint. The trial court opened the default and we affirmed, holding that the trial court had not abused its discretion, but this is clearly not the same as holding that the trial court would have abused its discretion if it had not opened the default.

2. Defendants also assert that the trial court should have issued a certificate for immediate review of the denial of defendants’ motion to open default. In light of our conclusion in Division 1 that the denial of defendants’ motion to open default was not an abuse of discretion, this issue is moot.

3. Because of defendants’ default, a jury trial was held on the issue of damages only, and defendants contend that the trial court erred in admitting evidence about what the doctor did (i.e., evidence they argue was relevant to defendants’ liability rather than to the issue of damages). The issue of punitive damages was before the jury, however, and evidence of the doctor’s conduct was both relevant and necessary to the question of the amount of damages necessary to deter or punish that conduct. See OCGA § 51-12-5.1 (d) (2). Accordingly, this contention is also without merit.

4. Lastly, defendants argue that the award of pre-judgment interest was improper because plaintiffs gave written notice of their claim prior to filing their original suit but did not do so again prior to filing their renewal action. The language of OCGA § 51-12-14 (a) speaks of notice of a claim for unliquidated damages rather than an action or lawsuit, however; indeed, in many cases notice of the claim will precede and perhaps prevent any lawsuit. In this case, despite the fact that plaintiffs brought two actions, there is only one claim involved, and plaintiffs met the requirements of OCGA § 51-12-14 (a) by sending defendants notice of their claim once. See also OCGA § 51-12-14 (b) (notice of claim “may be given on only one occasion”).

Judgment affirmed.

McMurray, P. J., Andrews, Johnson and Smith, JJ., concur. Blackburn and Ruffin, JJ., concur specially. Beasley, C. J., and Birdsong, P. J., dissent.

Blackburn, Judge,

concurring specially.

I agree wholeheartedly with the majority opinion and write this special concurrence to address the position taken by the dissent. Apparently, the dissent would hold that it would be unjust to allow plaintiffs to retain their verdict just because defendants did not answer as required by law. Should we likewise allow a horribly injured plaintiff, who failed to file his complaint within the statute of limitation because of a similar confusion, to proceed with his claim against

Decided March 12, 1996.

Phillips & Phillips, Arthur L. Phillips, for appellants.

Bird, Ballard & Still, William Q. Bird, Karin L. Allen, Dehler & Griffin, Maryellen Griffin, Lynn H. Whatley, for appellees.

the tortfeasor because otherwise an injustice would result?

We are a court of law for the correction of errors and we have no equitable jurisdiction. The trial court has discretion to open default under OCGA § 9-11-55 (b) not the appellate court. In Colonial Penn Life Ins. Co. v. Market Planners Ins. Agency, 209 Ga. App. 562 (434 SE2d 124) (1993), the trial court exercised its discretion and opened defendants’ default and this Court affirmed the ruling. In this case, the trial court exercised its discretion and refused to open the default and this Court should similarly affirm. OCGA § 9-11-55 (b); Mills v. State, 188 Ga. 616 (4 SE2d 453) (1939).

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

Beasley, Chief Judge, dissenting.

I respectfully dissent. The remedial rule allowing the opening of default is to be liberally applied. Ewing v. Johnston, 175 Ga. App. 760, 764 (334 SE2d 703) (1985). The circumstances in this case are sufficiently similar to those in Colonial Penn Life Ins. Co. v. Market Planners Ins. Agency, 209 Ga. App. 562 (434 SE2d 124) (1993), that they ought to be treated the same. Both involved two suits and lay confusion in believing there was one. All the requirements of OCGA § 9-11-55 (b) were met, and injustice is done if defendants must pay well over $1 million if there was, in fact, no negligence.

Were it not for this fundamental error, I would agree with the remaining three divisions in the opinion.

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


author: Pope, Presiding Judge.

text:
    A95A2500.
    In re ALVIN L. KENDALL.
    (469 SE2d 836)
   Pope, Presiding Judge.

Attorney Alvin Kendall appeals his conviction for contempt, which arose during his representation of a criminal defendant who was accused of violating animal protection laws.

The transcript shows that Kendall was first held in contempt for behavior which occurred during opening statements in the trial on Tuesday, May 16, 1995. The State completed its opening statement, and Kendall began his opening statement for the defendant. During Kendall’s opening, the State raised an objection and Kendall responded. After Kendall’s response, the court warned that it did not want him arguing with the court. The jury was then removed from the courtroom.

While the jury was out of the courtroom, Kendall continued with his legal argument regarding the animal protection statute under which his client was charged. The court ruled that Kendall’s line of argument was irrelevant. Kendall responded: “Your Honor, you cannot sit here and say it’s irrelevant when the accusation —.” The court explained that the court could say what it wanted; during the court’s statement Kendall interrupted repeatedly. Kendall continued interrupting as the court stated that Kendall was in contempt of court. The court ordered Kendall to spend 48 hours in jail or to purge himself of the contempt by paying a $250 fine. Kendall requested counsel and a hearing on the contempt. The court stated that Kendall would be provided with counsel and that the court would arrange for another judge to hear the matter.

The jury returned to the courtroom, and the trial continued. Opening statements were completed, and witnesses were called.

During cross-examination of one of the State’s witnesses the same day (Tuesday, May 16, 1995), Kendall posed questions regarding the statute which had been the subject of the earlier controversy. The State objected, the court sustained the objection, and the jury was sent out of the courtroom again. Kendall explained his position regarding the statute to the court and then stated: “[a]nd for the Court to sit here and try to make me —.” At this point, the court stated: “Wait just one minute. Don’t you ever use that term again, let the Court just sit here. You are now in contempt. I’m going to take a recess in this case until Friday morning. In the meantime you’ll be confined in the County jail as of now.”

Kendall asked for counsel, and the court stated that he was not entitled to it because the contempt was in the court’s presence. The court then ordered that Kendall be removed from the courtroom. After Kendall was removed from the courtroom, the court explained that Kendall had the right to appeal and to do so, he would need to put up a supersedeas bond. The court was made aware that Kendall planned to appeal the adjudication and would post a bond. The record does not contain any further documents from Tuesday, May 16, 1995. The trial resumed two days later, on Thursday, May 18, 1995, with Kendall present. At that time, Kendall requested a mistrial based on the fact that his wife was hospitalized due to an inexplicable loss of eyesight. Kendall also moved to dismiss the jury on the grounds of the publicity surrounding the trial. Kendall stated that he had seen a TV report that same morning which reported that he had been held in contempt and thrown in jail. The court ordered the trial delayed for about one week.

The order regarding Kendall’s contempt is signed by the same judge who presided over the trial and is dated July 19, 1995. It indicates that Kendall was found in contempt on May 16, 1995; there is no indication that a later hearing was held on the matter. The order directed that Kendall be confined in the Spalding County jail from July 28 until July 30, 1995, or that he purge himself of the contempt by paying $250 into the court’s registry on or before July 27. Kendall filed his notice of appeal on July 27, 1995. There is no motion for supersedeas in the record.

1. Before examining Kendall’s substantive arguments, we must resolve certain preliminary issues. The matter is complicated because the contempt arose from two separate incidents. After the first incident, the court found Kendall in contempt and imposed punishment. Nevertheless, the court then stated that a hearing would be held and that another judge would hear the matter. When the second incident occurred, the court summarily held Kendall in contempt, imposed punishment, and Kendall was removed from the courtroom.

From Kendall’s conversation with the court, we ascertain that Kendall was immediately jailed for the second incident of contempt. Accordingly, the appeal regarding that adjudication is moot. See Endicott v. Glynn County, 235 Ga. 667 (2) (221 SE2d 431) (1975); Cagle v. PMC Dev. Co. &c., 233 Ga. 583, 584 (212 SE2d 765) (1975).

There is no indication from the record that Kendall was punished pursuant to the court’s order for the first incident of contempt, and it appears that the court allowed the notice of appeal to serve as supersedeas. Accordingly, with respect to the first incident, we reach the merits of Kendall’s arguments.

“We note at the outset that a trial court has broad authority to preserve order in the courtroom by use of the contempt power. The judicial power to punish for contempt is inherent and enables the courts to perform their functions, including preserving order in judicial proceedings. Nevertheless, in view of the nature of the power to punish for contempt, courts should limit their orders to the least possible exercise of power required, and should not impose punishment without first affording minimum due process to the accused.” (Citations omitted.) In re Siemon, 264 Ga. 641 (1) (449 SE2d 832) (1994).

Decided March 12, 1996.

Alvin L. Kendall, pro se.

It is clear from the transcript that, based on Kendall’s conduct in the presence of and observed by the trial judge, Kendall was summarily adjudicated and punished for direct criminal contempt of court. See In re Shafer, 216 Ga. App. 725 (455 SE2d 421) (1995). “Implicit within the definition of direct, summary contempt is a finding that the conduct is in the presence of the trial court and results in an interference with the court’s ability to administer justice. [Cits.]” In re Adams, 215 Ga. App. 372, 375 (1) (450 SE2d 851) (1994).

Kendall claims that the court erred by failing to conduct the hearing that he requested, and that the court promised, on the contempt. In Dowdy v. Palmour, 251 Ga. 135, 141 (2) (304 SE2d 52) (1983), our Supreme Court elaborated on the due process requirements in different situations involving contempt. “During trial, a trial judge has the power, when necessary to maintain order in the courtroom, to declare conduct committed in his presence and observed by him to be contemptuous, and, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing. The carrying out of the punishment announced during trial may be postponed until after trial.” Id. at 141-142 (2) (b). That case then set forth the due process requirements regarding instances in which the announcement of punishment is delayed.

Here, in the first instance of Kendall’s contempt, the court announced punishment summarily, but also promised that Kendall would be allowed a hearing with another judge. Despite these assurances, it appears that no subsequent hearing was held. Given the nature of the contempt, the court’s promises regarding a later hearing were not necessary. Nevertheless, because the court did not hold the hearing and announced punishment summarily, it was incumbent upon the court to afford Kendall an opportunity to speak in his own behalf. Because the court failed to do this, the judgment insofar as it relates to the first incident of contempt must be reversed. Compare In re Harvey, 219 Ga. App. 76, 79 (464 SE2d 34) (1995); In re Farmer, 212 Ga. App. 372, 374 (1) (442 SE2d 251) (1994); see In re Spruell, 200 Ga. App. 218, 228 (407 SE2d 451) (1991).

2. Because of our conclusion, we need not address Kendall’s argument that the court’s order was insufficient.

Judgment reversed.

Beasley, C. J., and Ruffin, J., concur.

Griffin E. Howell III, Solicitor, for appellee.

       Although the person to whom the court explained this procedure was identified only as “Ms. Roberts,” it appears that she was associated with Kendall’s law firm.

       The proper procedure for preventing this point from becoming moot on appeal would be to obtain a supersedeas. See OCGA § 5-6-13.


author: McMurray, Presiding Judge.

text:
    A95A2503.
    ATLANTA APARTMENT INVESTMENTS, INC. et al. v. NEW YORK LIFE INSURANCE COMPANY et al.
    (469 SE2d 831)
   McMurray, Presiding Judge.

Plaintiffs Atlanta Apartment Investments, Inc. (“AAI”) and W. Barton George, Jr. brought this action for a real estate sales commission and damages allegedly owed by defendants New York Life Insurance Company (“New York Life”), Hunter’s Landing Apartments Limited Partnership (“Hunter’s Landing L.P.”), and Hunter’s Title Company, Inc. d/b/a Hunter’s Landing Apartments Co-Venture for the sale of an apartment complex (“the Co-Venture”). Counts 1 and 2 are asserted against New York Life under breach of contract or quantum meruit. Count 3 alleges the Co-Venture tortiously interfered with plaintiffs’ business relations. Count 4 alleges New York Life and the Co-Venture cooperated to deprive plaintiffs of the commission, acting in bad faith and being stubbornly litigious.

According to the amended complaint, AAI is a Georgia commercial real estate broker licensed by the State of Georgia and W. Barton George, Jr., is an employee of AAI, licensed to sell real estate in Georgia. In June 1991, defendant New York Life allegedly “permitted plaintiffs to serve as real estate brokers in the sale of certain real property in Gwinnett County known as Hunters Landing Apartments [; that plaintiffs admittedly] did not have an exclusive contract to sell the property[; but that on] June 18, 1991, . . . New York Life (through Sam Conley, an assistant to New York Life’s real estate vice president, Michael Towner) authorized plaintiffs to procure a purchaser. . . .” Viewed in the light most favorable to plaintiffs, the evidence would authorize the following chronology: W. Barton George, Jr. knew that the previous owner of Hunter’s Landing Apartments had let the property go “into receivership . . . [from which circumstance] people in the brokerage community know that there may be a change in ownership, there may be an opportunity for them[.]” W. Barton George, Jr. affirmed that, being “an aggressive broker, [AAI, through himself,] started trying to figure out how [he] could make a deal out of that opportunity[.]” In the spring and early summer of 1991, plaintiff AAI originally tried, without success, to “put together something for its own account to buy . . .” the property. The principals of AAI “felt like the price that New York Life wanted for those apartments was a little higher than maybe they were worth at that time in the market[.]” AAI “decided to see if Strand [were] interested in buying Hunter’s Landingf.]” In mid-May 1991, W. Barton George, Jr. showed Strand representative John Cassils three or four “apartment properties that were imminent foreclosure properties, properties that were in trouble and it was anticipated would soon be REO [(Real Estate Owned)].” On May 29, 1991, W. Barton George, Jr. showed the Hunter’s Landing Apartments to James A. Johnston, a vice president of Strand Properties Corporation (“Strand”). On or about June 10, 1991, W. Barton George, Jr. spoke with Sam Conley of New York Life, who related “that the property currently had an NOI of $1,050,000 and that it was 96 percent leased, and the NOI was arrived at by the operating expenses of $2400 a unit.” At that time, W. Barton George, Jr. “explained to [Sam Conley] that I work with a group who bought for their own account and served as third-party brokers and I would be interested in receiving information. [Sam Conley] told [W. Barton George, Jr.] that in order to release information that he would need a letter and market areas we were interested in.” W. Barton George, Jr. responded with a letter dated June 11, 1991, in which he introduced AAI as an entity that “own[ed] and operate[d] over 2,000 apartment units in Atlanta, [with] plans to acquire an additional 1,000 units before year end.” AAI expressed an interest in seeing any foreclosed apartment developments that New York Life might wish to sell, “preferably before you list the properties with a real estate broker.” AAI expressed “a very sincere interest in . . . Hunter’s Landing . . . and, would in short, like to own the real estate.” This letter closed with the request to be informed of New York Life’s future “plans for the property once you have some direction.”

On June 26, 1991, plaintiffs allegedly introduced New York Life to the “Strand Properties Corporation, a real estate company operating out of Vancouver, British Columbia.” Strand authorized plaintiffs to submit an offer, and on July 8, 1991, “plaintiffs submitted Strand’s offer to purchase the property for $12,000,000 to New York Life.” This $12,000,000 figure was derived “when [W. Barton George, Jr.] drove Jim [Johnston, of Strand,] to the apartment property itself[.] [Jim Johnston] asked [W. Barton George, Jr.] for [his] opinion as to what the property would be worth in [the current commercial real estate] market. . . . And [W. Barton George, Jr.] told [Jim Johnston] that [he] felt like the property was worth $12,000,000.” The formal $12,000,000 offer consisted of “$2,400,000 to be paid in cash at closing including all deposit monies; . . . [and] a first mortgage ... in the amount of $9,600,000 to be provided by [New York Life as] the Seller. The First Mortgage shall be on a non-recourse basis and be [payable] interest only with a 10 year term at an interest rate of 8 % in the first year, 8V2 % in the second year, 9 % in the third year, and 9¥2 % thereafter.” This offer further specified “Seller and Purchaser agree that Seller shall be responsible for all brokerage commissions payable including a sales commission to [plaintiff, AAI].” By its terms, the offer “shall automatically expire, unless accepted in writing by Seller no later than 5:00 p.m. on July 8th, 1991.”

Plaintiff W. Barton George, Jr. submitted this offer to defendant New York Life under a cover letter on AAI stationery, addressed to Michael Towner, a vice president of New York Life. This cover letter makes no reference to any listing agreement whereby defendant New York Life consented to having plaintiff AAI or plaintiff W. Barton George, Jr., act as a seller’s real estate agent on behalf of New York Life. On July 11, 1991, Michael W. Towner, real estate vice president for New York Life, replied to plaintiff W. Barton George, Jr. and rejected Strand’s offer, advising that New York Life had “received and declined several proposals at [the] price range [offered by Strand].” The present asking price was “$14.5 million but we are only beginning to market this property and this figure is subject to change.” This letter does not confirm or ratify any listing agreement among defendant New York Life on the one hand and plaintiffs AAI and W. Barton George, Jr. on the other. Rather, it closes with the formal “appreciation of plaintiffs’] interest and efforts and [urges plaintiffs to] feel free to call me to discuss the matter further.” Plaintiff W. Barton George, Jr. does not “recall discussing a commission arrangement with [either Michael Towner or Sam Conley].” But Sam Conley made it absolutely clear to W. Barton George, Jr. “that New York Life was not a distress seller. They were not going to sell real estate on a distress basis. They were far too patient and well capitalized to sell in a bargain basement type situation.” William Butler, the 90 percent shareholder in AAI, affirmed that, after this exchange of letters, “[negotiations] broke off, but [AAI was] aware that Jim [Johnston of Strand] kept in contact with New York Life[.]”

Plaintiffs further alleged that Michael Towner’s July 11, 1991, letter was a counteroffer, which plaintiffs conveyed to Strand. The $2,500,000 difference between Strand’s offer and New York Life’s asking price suggested to W. Barton George, Jr. “that there was very little opportunity to make a deal.” Although Sam Conley also recognized that $12,000,000 represented the property’s fair market value under then-prevailing conditions, nevertheless, New York Life “felt like the units that were overbuilt in the ’80s would be absorbed, there was positive growth there [in Gwinnett County, Georgia], that rents would move and that in time the market would come to them, and they were very comfortable with that stance, and they were prepared to wait for the market to come to them.” Consequently, it came as no surprise to W. Barton George, Jr. “that negotiations for this Hunter’s Landing property were dropped in July of 1991, given where New York Life was and where Strand was[.]” Still, “Strand asked plaintiffs to continue to work with New York Life to see if Strand could purchase the property at a later date.” That is, plaintiffs were requested by Jim Johnston of Strand to “track the deal.”

In September 1991, plaintiffs were informed by Sam Conley of New York Life that “the sale of Hunters Landing Apartments was on hold for the near future.” As W. Barton George, Jr. understood the situation, New York Life “determined internally that the property was not going to bring the price that they wanted in the current market situation, and they were going to push the rents and consider remarketing the property in the middle of 1992.” Plaintiffs allegedly “continued negotiations with Strand and acted as intermediary between the seller and the purchaser.” The evidence of this is that W. Barton George, Jr. tried to “compile resume information to accompany an[other] offer from Strand on Hunter’s Landing, which [he] was led to believe would be forthcoming.” However, W. Barton George, Jr. “would have asked them[, i.e., Strand officers,] to put that together for me[,. . . because he] couldn’t create that [him]self[.]” At the behest of Strand, W. Barton George, Jr. also telephoned “Mr. Conley numerous times for the next month in an attempt to get [a marketing package on the property], and finally on our last conversation, he indicated that they [New York Life] were not going to provide marketing packages[.]”

During the next two years, W. Barton George, Jr. “would be introduced to people who would indicate an interest in buying suburban garden apartment complexes in the nine-and-a-half capitalization] range. And from time to time [he] would call Mr. Conley, Mr. Towner, whoever [he] could reach, to see if the operating performance or the economics of this property had reached such a level, and they never had. So, [during that time], the property was never presented to another buyer, although [W. Barton George, Jr.] certainly explored the possibility with the owner to see if there may be a fit there, but . . . no formal package, no information was ever sent to anyone else[.]” W. Barton George, Jr. affirmed his understanding that “if the property [were] off the market, that not only the deal with Strand . . . had been . . . dropped but any prospective deal was, at least for the time being, dead at that point[.]” W. Barton George, Jr. also “called Mr. Conley to see if [New York Life] might have other real estate holdings that they would be interested in selling at this point in time.” He further affirmed that, from September 4,1991, until May 20, 1992, he “did not have any conversations with New York Life[.]” On May 20, 1992, Sam Conley informed W. Barton George, Jr. that the “price remained at $14.5 million and that the sales price at this level would reflect a seven-and-a-half percent cap on their current income. That was not consistent with [another prospect’s] buying parameters, and it was dropped.”

On April 28, 1993, W. Barton George, Jr. again queried about the sales price of the property, on behalf of a third prospect. Michael W. Towner informed plaintiffs that the “asking price of $14,500,000 was still firm and New York Life would . . . provide 75% financing at market rates.” “Unknown to plaintiffs, in May of 1993, Jim Johnston of Strand bypassed plaintiffs and started dealing directly with New York Life in an attempt to purchase the property without any payment of a brokerage commission.” On December 16, 1993, defendant Co-Venture, an entity allegedly “affiliated with Strand,” purchased the property for $14,500,000 with New York Life financing $10,875,000 or 75 percent of the purchase price. Contending that they were the procuring cause of a ready, willing, and able purchaser, plaintiffs demanded a three percent commission, approximately $435,000.

Defendants answered, denying the material allegations, while admitting that New York Life rejected Strand’s July 8, 1991, offer of $12,000,000, and further admitting that on December 16, 1993, New York Life sold the property to the Co-Venture on the terms as alleged, without paying plaintiffs a real estate broker’s commission. After discovery, defendants Hunter’s Landing Apartments L.P. and the Co-Venture jointly moved for summary judgment contending inter alia that plaintiff W. Barton George, Jr. had no standing to bring a direct action for a real estate broker’s commission; that AAI was not the procuring cause of the eventual sale to the Co-Venture; and that the Co-Venture, as a party to the transaction, had not tortiously interfered with plaintiffs’ business relations. New York Life also moved for summary judgment, contending that plaintiffs were not the procuring cause of the sale and also on the ground that W. Barton George, Jr. had no standing to pursue real estate commissions. The trial court granted summary judgment to all defendants, and this appeal followed. Held:

1. There is no written listing agreement between AAI and New York Life, nor do plaintiffs rely on any oral agreement whereby defendant New York Life expressly agreed to retain AAI as its agent to procure a buyer for the property. Rather, plaintiffs contend there was an implied agreement to pay AAI a brokers’ commission.

OCGA § 9-2-7 provides in part: “Ordinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.” A real estate broker may bring a claim for commissions based upon “an implied obligation to pay where [the broker’s] services have been rendered and accepted by the beneficiary thereof, provided however, said services were not unlawful in that the broker was not licensed in accordance with [Chapter 84-14 of former Code Annotated, now OCGA § 43-40-1 et seq.]. See Code § 3-107 [now OCGA § 9-2-7]; [cits.]” D. L. Stokes & Co. v. McCoy, 212 Ga. 78 (2) (90 SE2d 404). “[A] broker doing business in Georgia without the required license ha[s] no standing to sue [for commissions allegedly owed].” Mathews v. Greiner, 130 Ga. App. 817, 818-819 (1) (204 SE2d 749). In the case sub judice, it is undisputed that only AAI is authorized to act as a real estate broker in Georgia and that plaintiff W. Barton George, Jr. is not so licensed. Rather, he is authorized only to act as a real estate agent. In Georgia, “[i]t [is] a condition precedent to recovery that the plaintiff prove he had the necessary license. . . .” Beets v. Padgett, 123 Ga. App. 68 (1) (179 SE2d 560). “The right in Georgia to ‘enforce in any court’ a claim ‘for commissions ... or fees for any business done as real estate broker’ is denied to any person who acts ‘without having previously obtained the license required . . .’ Code [Ann.] § 84-1413 [as amended, now OCGA § 43-40-30]. This would apply even if the claim were on a quantum meruit basis. [Cit.]” Dixon v. Rollins, 120 Ga. App. 557, 558 (1), 559 (171 SE2d 646). See also Padgett v. Silver Lake Park Corp., 168 Ga. 759 (149 SE 180). Consequently, the trial court in the case sub judice correctly granted summary judgment against W. Barton George, Jr. individually, as to all claims in contract as well as for tortious interference with AAI’s business relations.

2. Plaintiff AAI contends the trial court erred in granting summary judgment as to its claim in quantum meruit, arguing that jury questions remain as to whether it was the procuring cause of the sale. We disagree.

“Finding the prospect and attempting to make the sale are not sufficient, in law, to entitle an agent to a commission; to earn the commission, he must be the procuring cause of the sale. Jordan v. Dolvin Reality Co., 54 Ga. App. 472 (188 SE 304) (1936).” Foshee v. Harris, 170 Ga. App. 394, 396 (317 SE2d 548). “A broker . . . does not make out a case of procuring cause ... by merely showing that he first located the ultimate purchaser, if it further appears that without interference by the owner he was unsuccessful in bringing about an offer which could be consummated, and that the sale was made after he had abandoned his effort. Jordan v. Dolvin Realty Co., 54 Ga. App. 472, 477[, supra]; Landrum v. Lipscomb-Ellis Co., 62 Ga. App. 649 (9 SE2d 205); Crutchfield v. Western Elec. Co., 66 Ga. App. 161 (17 SE2d 246).” Tidwell & Yarbrough Realty Co. v. Foster, 123 Ga. App. 192, 193 (2) (180 SE2d 259). “Because one puts property in the hands of brokers to sell, it does not follow that he himself cannot sell. If he does not use their labor to help him, he owes them nothing; if he does use it, and puts in to take the trade — its consummation — out of their hands so as to escape paying them, then ex equo et bono, he does owe them, and must pay just what they could have made by the contract if he had not prevented it. This is sound sense and good law[.]” Doonan v. Ives & Krouse, 73 Ga. 295, 302 (3) (1885).

As can be seen by reference to the record, plaintiffs’ efforts in the case sub judice amounted to presenting a single offer that was rejected, and then spending the next two years asking the alleged principal if its asking price remained firm at $14,500,000. This simply is not any evidence that plaintiffs performed valuable services which were accepted by the principal, such that the law should impose an equitable obligation to pay real estate broker’s commissions. The authorities cited by plaintiff AAI to show a jury question as to a broker’s claim in quantum meruit are distinguishable since it appears in every instance cited there was an underlying express listing agreement. See Christopher Investment Props. v. Cox, 219 Ga. App. 440 (465 SE2d 680) (where a seller entered into an exclusive first multiple listing services agreement which “notified] all other real estate agents that the property was available for sale and that agents could earn a commission for its sale”); and Sharp-Boylston Co. v. Lundeen, 145 Ga. App. 672 (244 SE2d 622) (Lundeen orally “asked [his broker son-in-law] to locate a building to house a printing brokerage business which he [Lundeen] intended to open soon”); and Martin v. Hendrix, Waddell &c. Co., 140 Ga. App. 557, 558 (231 SE2d 526) (where an “oral listing was obtained . . .”). See also Galloway v. McKinley, 73 Ga. App. 381, 383 (2) (36 SE2d 485), interpreting Code Ann. § 4-213, now OCGA § 10-6-32, and holding that “the statute and the decisions [of the Supreme Court and this Court] presuppose the existence of an agency between the real-estate broker and the property owner before the broker can collect a commission.” In the case sub judice, the record is devoid of evidence that plaintiffs’ efforts were the procuring cause of the eventual sale of the property by the owner at its initial asking price of $14,500,000. The trial court correctly granted summary judgment as to plaintiff AAI’s claim in quantum meruit.

3. It follows that the trial court further correctly granted summary judgment as to Count 3 of the complaint. This alleged that the Co-Venture intentionally interfered with AAI’s business relations and “induced New York Life not to pay plaintiffs the real estate commission due. ...”

“Where no commissions are due, a claimed conspiracy to defraud the broker of the commissions does not create a claim for relief. [Cits.]” Martin v. Hendrix, Waddell &c. Co., 140 Ga. App. 557, 561 (4), supra. “Not only was there no evidence of any conspiracy [in the case sub judice], there could have been none to deprive [AAI] of [its] commission since under the facts and law [AAI] was not the procuring cause of the sale and therefore not entitled to the commission. See Woodall v. McEachern, 113 Ga. App. 213 (147 SE2d 659).” Parrish v. Ragsdale Realty Co., 135 Ga. App. 491, 495 (6) (218 SE2d 164).

Judgment affirmed.

Andrews, J., concurs. Blackburn, J., concurs in the judgment only.

Decided March 12, 1996.

Schreeder, Wheeler & Flint, David H. Flint, Lynn C. Stewart, for appellants.

Alston & Bird, Jay D. Bennett, Candace N. Smith, Morris, Manning & Martin, Warren W. Wills, Jr., Ann R. Schildhammer, for appellees.


author: Birdsong, Presiding Judge.

text:
    A95A2273.
    RAPPS v. PHH US MORTGAGE CORPORATION.
    (469 SE2d 731)
   Birdsong, Presiding Judge.

Betsy Luise Rapps appeals the grant of summary judgment to PHH US Mortgage Corporation. Although this action began as a dispossessory, Rapps filed a counterclaim alleging that the deed to secure debt on which the dispossessory was based had been altered to include the property in question and subsequently added other claims based upon what she contends was PHH’s fraudulent conduct.

According to Rapps, while she owned a home in Virginia, she decided to buy a house in Georgia and to finance the purchase price with a first mortgage on the property and with a swing or bridge loan secured by the equity in the Virginia home. When the swing loan became in default, PHH foreclosed on the Georgia property and then initiated dispossessory proceedings against Rapps in magistrate court on the property in question. Although Rapps filed counterclaims that caused the action to be transferred to superior court, the dispossessory issued pursuant to an agreement between the parties. Rapps maintains that the swing loan was not secured by the Georgia property and that the dispossessory is based on the fraudulent alteration of the deed of trust to show that the Georgia property was also security for the loan. Subsequently, the trial court found that Rapps had not sufficiently established her claims and granted summary judgment to PHH. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. Here, although PHH denied that the documents had been altered, Rapps’ response to PHH’s motion for summary judgment was supported by testimony from herself and her husband stating that the documents at the closing referenced only the house in Virginia as security for the loan and further stating the documents which they signed at the closing did not include the Georgia property as security for the loan. Thus, Rapps alleged that the security deed had been altered by substituting a page showing the property description with pages that were attached from the deed she signed. With this direct conflict in the testimony concerning the security deed, an issue of fact was created, and Rapps discharged her duty under our summary judgment law by pointing to “specific evidence giving rise to a triable issue.” Lau’s Corp. v. Haskins, supra at 491. Further, any doubts on the existence of a genuine issue of material fact are resolved against the movant for summary judgment (Kelly v. Vargo, 261 Ga. 422, 423 (405 SE2d 36)), and determining the credibility of witnesses and weighing the evidence are functions within the province of the jury. Turner v. State, 206 Ga. App. 683, 684 (426 SE2d 168).

Decided February 27, 1996

Reconsideration denied March 12, 1996

Jeffrey L. Sakas, for appellant.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Linda S. Finley, Peter L. Lublin, Jay B. Bell, for appellee.

Therefore, we find that PHH’s denials were not sufficient to overcome Rapps’ specific allegations of fraud which are supported in the record by the absence of references to the Georgia property on certain relevant documents. In this regard we note that the original security deed, which under usual Georgia practice would consist of one continuous form, was never produced by PHH. Giving Rapps the benefit of doubts and inferences to which she is entitled under our summary judgment law, we are satisfied that the evidence which she presented was sufficient to create a genuine issue of material fact on her claims that PHH wrongfully foreclosed on her property through a material alteration of the security deed. Under the evidence of this case, Rapps presented sufficient evidence to create a genuine issue on whether PHH’s agent altered the security deed. See Intl. Harvester Co. v. Davis, 13 Ga. App. 1, 3 (78 SE 770). Further, the assertion by PHH that Rapps cannot preserve a claim for wrongful foreclosure without first setting aside the foreclosure is contrary to our law. Calhoun First Nat. Bank v. Dickens, 264 Ga. 285, 286 (443 SE2d 837).

3. In view of our disposition of the issue in Division 2, we need not address Rapps’ other enumerations of error.

Judgment reversed.

Johnson and Smith, JJ., concur.


text:
    A95A2555.
    HILL v. ROSE ELECTRIC COMPANY.
    (469 SE2d 844)
   McMurray, Presiding Judge.

Plaintiff Rose Electric Company filed this contract action alleging that defendant Charles Hill was “indebted to Plaintiff on an open account which is in default and remains unpaid in the amount of $8,742.94.” Defendant denied the material allegations, and the case was tried before the Superior Court of Henry County without the intervention of a jury. The superior court found for the plaintiff in the principal sum of $4,014 plus costs. From that judgment defendant brings this direct appeal. Held:

Decided March 12, 1996.

Blount, Cash, Amos & Godwin, Ernest D. Blount, for appellant.

Kirby G. Bailey, for appellee.

OCGA § 5-6-35 (a) (6) requires an application for discretionary appeal “in all actions for damages in which the judgment is $10,000.00 or less[.]” In the case sub judice, “this final judgment awards contractual damages in an amount less than $10,000.00 and so . . . require[s] an application for discretionary appeal. . . .” English v. Delbridge, 216 Ga. App. 366, 367 (454 SE2d 175). “The [defendant] failed to follow that procedure in this case, and this direct appeal must be dismissed. See Walker v. City of Macon, 166 Ga. App. 228 (303 SE2d 776) (1983).” Simpkins v. Minks, 175 Ga. App. 729 (334 SE2d 340).

Appeal dismissed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2580.
    GRANT v. THE STATE.
    (469 SE2d 826)
   Pope, Presiding Judge.

We granted Jeffrey Grant’s interlocutory application to determine whether the trial court properly denied his motion to suppress. For the reasons set forth herein, we reverse in part.

On May 5, 1992, a search warrant issued for the search of the office of Georgia Southern Lumber, one of Grant’s businesses. The search was executed the following day.

The warrant set forth that the laws being violated were OCGA §§ 16-8-2 (theft by taking) and 16-10-20 (false statements). It listed the things to be searched for as: “letters with landowners, timber companies or participants pertaining to the purchase or transfer of land or timber; warranty deeds; options on timber contracts for the purchase or transfer of timber; loan documents where land or timber was utilized as collateral; cancelled checks, check stubs and check ledgers for the period of 1983 to the present; weight tickets; settlement sheets; cruise reports (timber evaluations); tally sheets; location maps; promissory notes; purchase records for supplies from Davis Office Supplies. (See attached participant list.)”

Attached to the warrant was the eight-page affidavit of Georgia Bureau of Investigation (“GBI”) special agent Roy Olinger, in which he stated that he was trained in white collar crime investigation. Olinger stated that he had been involved since 1989 with the investigation of a series of criminal schemes which had been perpetrated against Keadle Lumber Enterprises over several years. Olinger’s affidavit stated that there had been a continuing pattern of criminal activity conducted by the “co-defendants” over the years. The affidavit described the types of documents ordinarily maintained in the timber industry; these documents basically conformed to the items sought in the warrant.

Also attached to the warrant was a seven-page list of “co-defendants,” which set forth both businesses and individuals. Both Grant and his alleged businesses were listed in this section.

The final document attached to the warrant was Olinger’s additional affidavit describing the investigation the GBI had undertaken with respect to Grant’s involvement with the illegal activities. The affidavit stated that Grant had been the grantor of fictitious tracts of timber and that he had inflated acreage and payments based on inflated volumes of timber. The affidavit stated that Grant had prepared forged documents and provided them to Olinger for the purpose of concealing his criminal activity from 1983-1989. The affidavit then set forth various fraudulent transactions to which Grant had been a party.

In July 1992, three indictments from Henry County issued against Grant, charging him with five counts of forgery in the first degree and three counts of theft by deception for acts which occurred in August, September and October 1991. These indictments were nolle prossed in November 1992. On October 14, 1992, a Henry County grand jury issued two indictments against Grant charging him with three counts of forgery in the first degree and two counts of theft by deception. The second indictments were basically the same as the earlier indictments, although one of the indictments was dropped. After the Henry County indictments issued, Grant was one of numerous individuals indicted by an Upson County grand jury under the Georgia Racketeering Influenced and Corrupt Organizations Act (RICO), OCGA § 16-14-1 et seq.

Grant filed a motion to suppress, arguing that the warrant was issued without probable cause and that it was overbroad. The court held a hearing on the motion at which agent Olinger testified that he had been investigating the criminal activity surrounding Keadle Lumber Enterprises since 1989; that he had previously conducted several interviews of Grant; and that on May 6, several simultaneous searches of key players involved in the alleged timber illegalities were conducted. Olinger testified that he was not involved in the search, but that he was aware that in addition to the files which contained items delineated on the warrant, the agents had seized Grant’s tax returns, computer and accompanying discs, and data board. GBI agent Montgomery testified that Grant’s phone messages and wall calendar were seized, and that papers regarding Grant’s dealings with individuals other than the listed “co-defendants” were also taken. Montgomery testified that the search lasted from 1:00 p.m. to 9:00 p.m., and Grant testified that “everything that wasn’t nailed down” was taken in the search. Grant also stated that the things seized included his personal note pad and personal phone book.

Olinger testified that documents which were seized and which were later deemed unnecessary would be returned to Grant. Olinger admitted that the agent executing the search had the discretion to determine what was within the warrant. He recalled that the agents executing the search were instructed to “research those files [listed in the warrant as part of the timber investigation] and if they ran across any of those files with those particular names of the other players [listed in the attachments to warrant] or anyone else that they were familiar with that were involved in the timber industry investigation, to also seize that, yes.”

In denying Grant’s motion to suppress, the court stated that the “particular documents having to do with the Defendant and certain other suspect individuals listed in the affidavit were the only items authorized by the issuing judge to be seized. Testimony at the hearing, however, showed that not only were the items listed on the face of the warrant seized but also a number of other items.” The court then concluded that because there was no “flagrant disregard” of the warrant, there was no general search requiring total suppression. The court stated: “it appears from evidence that the agent’s extensive seizure of evidence resulted from practical considerations and time constraints.” Accordingly, the court found that the State had satisfied its burden of proof with respect to the legality of the search. It then stated: “[o]ther items seized which were outside the scope of the warrant would be excluded if it were possible to specifically enumerate these items; however, the lack of detail in the State’s inventory list, and the Defendant’s failure to adequately present this information” prevented the court from excluding such documents.

1. Grant contends that the warrant was improperly executed in that the officers seized items not listed in the warrant. We agree. “A search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. The scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible. Evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation.” (Citations and punctuation omitted.) Lockhart v. State, 166 Ga. App. 555, 557 (2) (305 SE2d 22) (1983). “A lawful search is limited to that which is described in the warrant. . . . The warrant shall particularly describe the things to be seized and the search must be limited to that matter described.” (Citations omitted.) Id. at 558.

This was not a situation in which additional contraband was seized during the search because it was in plain view. See generally State v. Scott, 159 Ga. App. 869 (285 SE2d 599) (1981). Moreover, the “[p]lain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” (Citations and punctuation omitted.) Hogan v. State, 140 Ga. App. 716, 717-718 (1) (231 SE2d 802) (1976).

Here, the inventory list of the items seized and Olinger’s testimony established that the scope of the search exceeded the warrant, and the court properly determined that the search was excessive. We find no legal support for the court’s decision that practical considerations and time constraints justified the overly extensive search. Moreover, there is no factual support for this conclusion since many of the items seized which were outside the scope of the warrant (e.g., the computer, calendar) were unrelated to time constraints. Compare Ledesma v. State, 251 Ga. 885, 889-890 (7) (311 SE2d 427) (1984) (regarding “private papers” argument).

Similarly, the court erred in concluding that the motion should be denied because of the difficulty in enumerating the items improperly seized. Certainly, Grant should not be penalized for the lack of detail in the State’s inventory list. Moreover, given that all of his files had been taken, Grant’s practical difficulty in specifying the particular items taken which exceeded the scope of the warrant was apparent.

“When a motion to suppress is made on one of the three statutory grounds, challenging the validity of a search and seizure with a warrant, the burden of showing that the search and seizure were lawful shall be on the state.” (Citation and punctuation omitted; emphasis in original.) Bowman v. State, 205 Ga. App. 347, 348 (422 SE2d 239) (1992). The State failed to show that the warrant was legally executed, and the court erred in not granting the motion in this regard. See OCGA § 17-5-30 (b); see generally State v. Slaughter, 252 Ga. 435 (315 SE2d 865) (1984).

“The remedy under state law would be return of the illegally seized items and suppression of that which was seized by an illegal execution of the warrant. OCGA § 17-5-30. This would include only the unlawfully seized items.” Hunt v. State, 180 Ga. App. 103 (1), 106 (348 SE2d 467) (1986); Dobbins v. State, 262 Ga. 161, 163 (3) (415 SE2d 168) (1992). Thus, we remand the case for determination by the court as to which items should be returned to Grant and suppressed.

2. In four more enumerations of error, Grant essentially contends that the warrant was overbroad and that the items to be seized were not described with sufficient particularity. Again, we agree.

OCGA § 17-5-21 provides that a search warrant may be issued for things or papers which are particularly described. OCGA § 17-5-21 (a) (1) states that a search warrant may issue for the seizure of “[a]ny instruments, articles, or things, including the private papers of any person, which are designed, intended for use, or which have been used in the commission of the offense in connection with which the warrant is issued.”

“The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what may be taken, nothing is left to the discretion of the officer executing the warrant. In short, what this history indispensably teaches is that the constitutional requirement that warrants must particularly describe the things to be seized is to be accorded the most scrupulous exactitude.” (Citations and punctuation omitted.) Lockhart, 166 Ga. App. at 557. “The test for the sufficiency of description is whether on its face it enables a prudent officer executing the warrant to locate [the item] definitely and with reasonable certainty.” (Citation and punctuation omitted.) Hunt v. State, 180 Ga. App. at 105. Further, “when circumstances make an exact description of instrumentalities a virtual impossibility, the searching officer can only be expected to describe the generic class of the items he is seeking.” (Citations and punctuation omitted.) Id.

“We recognize that there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person’s papers that are not necessarily present in executing a warrant to search for physical objects whose relevance is more easily ascertainable. In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized. . . . [Responsible officials, including judicial officials, must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.” Andresen v. Maryland, 427 U. S. 463, 482, n. 11 (96 SC 2737, 2749, n. 11, 49 LE2d 627) (1976).

Decided March 12, 1996.

Cook & Palmour, Bobby Lee Cook, Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, George T. Smith, for appellant.

Tommy K. Floyd, District Attorney, Michael J. Bowers, Attorney General, Michael E. Hobbs, Senior Assistant Attorney General, Patrick D. Peering, for appellee.

Here, if the items listed in the warrant are limited to those involving the named participants, the items were described with the requisite particularity. The determination of which documents fell within this rubric would have been a matter of fact, and would have been an appropriate determination for the searching officers to make. Strauss v. Stynchcombe, 224 Ga. 859, 863 (2), 866 (165 SE2d 302) (1968). However, because the warrant did not clearly limit the items to be seized to those involving the named participants, it was overly broad and allowed for an impermissible exercise of discretion by the searching officers. See generally Annotation, Sufficiency of Description of Business Records under Fourth Amendment Requirement of Particularity in Federal Warrant Authorizing Search and Seizure, 53 ALR Fed 679 (1981). Again, with the record before us, we are unable to determine which items were improperly seized, and we remand the case so that the court can make this determination.

3. Grant’s contention that tapes obtained by a body bug should have been suppressed is without merit. See State v. Birge, 240 Ga. 501 (241 SE2d 213) (1978); OCGA § 16-11-66. Accordingly, the court properly denied the motion to suppress on this basis.

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

Beasley, C. J., and Ruffin, J., concur.

       This indictment and its predecessor have given rise to numerous appeals by individuals and corporations named in the indictments. See, e.g., Raines v. State, 219 Ga. App. 893 (467 SE2d 217) (1996); Pope v. State, 214 Ga. App. 458 (448 SE2d 54) (1994), aff'd 265 Ga. 473 (458 SE2d 115) (1995); Fletcher v. State, 213 Ga. App. 401 (445 SE2d 279) (1994); State v. Adams, 209 Ga. App. 141 (433 SE2d 355) (1993) (in which the trial court quashed the indictments and purported to grant the motion to suppress evidence obtained pursuant to improper grand jury subpoenas).

       Although not determinative, we are mindful that the alleged offenses here are theft by taking and false statements and that the breadth of the search is somewhat controlled by these crimes. For a discussion of the issue of subterfuge searches, see United States v. Washington, 797 F2d 1461 (9th Cir. 1986); 2 W. LaFave, Search and Seizure, pp. 183-184, § 4.11 (e).


text:
    A95A2593.
    HUTSON v. THE STATE.
    (469 SE2d 825)
   McMurray, Presiding Judge.

Defendant Hutson appeals his conviction of the offense of criminal trespass, OCGA § 16-7-21 (b) (2). Held:

Since the evidence fails to authorize defendant’s conviction, we must reverse. At the time of the alleged offense, defendant was 18 years of age and had recently been dating Valerie Armour, a 15-year-old student who resided in her parents’ home. Due to their concerns with regard to defendant’s character and lifestyle, the young woman’s parents attempted to terminate this relationship, telling defendant not to have further contact with their daughter and not to come to their house. A few weeks later Valerie Armour invited defendant to the family home and gave him a key so that he could enter the house and wait for her there. Valerie Armour’s parents learned of this visit, and this criminal prosecution followed.

OCGA § 16-7-21 (b) (2) provides that a person commits the offense of criminal trespass when he knowingly and without authority: “Enters upon the land or premises of another person . . . after receiving, prior to such entry, notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant that such entry is forbidden.” While defendant received notice that his entrance into the Armour home was forbidden, there is no evidence that the parents’ statements to defendant encompassed the possibility of a future invitation from their daughter. The issue presented is whether Valerie Armour’s invitation conveyed authority to defendant to disregard the earlier notice that he was barred from the home.

The statute is regrettably silent concerning the manner in which a notice barring access to a premises should be rescinded. But there is some authority for the proposition that authority to permit entry of the premises is ancillary to the right to exclude, and entry may be granted by the permission of a person legally entitled to withhold the right. State v. Raybon, 242 Ga. 858, 861 (252 SE2d 417). Valerie Armour would appear to be such a person, a “rightful occupant” of her parents’ home as that term is used in the statute and thus entitled to grant or withhold the right of entry, unless this capacity is withheld because she was a minor.

To aid in addressing this final issue in the case sub judice, we pose a simple hypothetical, whether a 15-year-old sales clerk, legally authorized to work, and working alone at a convenience store has legal authority to order from the store and forbid to return a visibly intoxicated and disruptive person. The trespass statute contains no express or implied limitation concerning the age of a “rightful occupant,” and we see no reason such status should not be afforded to a minor of appropriate maturity since, as shown by our hypothetical, there are clearly circumstances where such authority is proper, suitable, and consistent with the general purposes of the statute.

Some case-by-case examination as to age and maturity may be necessary to establish the status of a minor as a “rightful occupant.” In this regard, a comparison with cases, such as Atkins v. State, 254 Ga. 641 (331 SE2d 597), dealing with the authority of minors to consent to searches of their parents’ homes may be instructive.

Decided March 12, 1996.

Conrad & Abernathy, Eric A. Ballinger, for appellant.

D. Terry Stringer, Solicitor, for appellee.

In the case sub judice, it was shown that Valerie Armour exercised an independent discretion in inviting people to the family home, and there was no suggestion that she was in any way impaired or less mature than her age may suggest. Under the circumstances presented in this case, we hold that Valerie Armour was a “rightful occupant” of her parents’ home for purposes of OCGA § 16-7-21 (b) (2) and thus her invitation authorized defendant to enter the premises.

Judgment reversed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2600, A95A2601.
    RIVERDALE COLLISION, INC. v. OSBORNE BONDING & SURETY COMPANY; and vice versa.
    (469 SE2d 823)
   McMurray, Presiding Judge.

On November 1, 1991, the Superior Court of Henry County ordered Ashley Farms, Inc. and Clara Company, Inc. (defendants) to file a supersedeas bond, pursuant to OCGA § 5-6-46 (a), in an amount sufficient to satisfy a $40,000 judgment entered against defendants and in favor of Riverdale Collision, Inc. (“Riverdale Collision”), “together with costs, interest from the date of judgment and damages from delay if for any reason the appeal is dismissed or found to be frivolous, and to satisfy in full such modification of the judgment and such costs, interest and damages as the Court of Appeals may award.” The Clerk of the Henry County Superior Court approved a $40,000 bond issued by Osborne Bonding Company, Inc. (a/k/a Osborne Bonding & Surety Company, Inc.) (“Osborne Bonding”), naming defendants as principal obligors to Riverdale Collision under the $40,000 judgment.

On April 6, 1993, Osborne Bonding filed a motion to set aside the supersedeas bond, alleging several grounds for voiding the instrument. Riverdale Collision filed a response, alleging that a judgment was entered against Osborne Bonding and defendants on January 11, 1993, after the Court of Appeals affirmed the judgment against defendants; that this judgment has not been modified, vacated or set aside and that a writ of fieri facias (issued pursuant to this judgment) thereafter resulted in a garnishment of Osborne Bonding’s checking account. Riverdale Collision alleged that a traverse of this garnishment was filed but was overruled by the trial court and that no appeal was taken from the trial court’s order overruling the traverse.

Osborne Bonding later filed an amendment to its motion to set aside the supersedeas bond, alleging that Riverdale Collision collected $25,306.65 pursuant to a garnishment of its bank account and that “[s]hould this Honorable Court rule against [it, Osborne Bonding] stands ready to pay into the registry of [the trial] court or to [Riverdale Collision] directly the sum of $14,693.35 which along with the amount already garnished [comes] to $40,000 which is the amount of the bond.” Riverdale Collision later objected to this amendment (at a hearing), claiming that it is not only entitled to enforce the principal amount of the judgment against Osborne Bonding and defendants, but that it is also entitled to collect interest, costs and other damages from Osborne Bonding as specified in the trial court’s order directing defendants to file a supersedeas bond pursuant to OCGA § 5-6-46 (a).

The trial court denied Osborne Bonding’s motion to set aside the supersedeas bond, but granted its amended motion to set aside, ordering Osborne Bonding “to pay into the Registry of the Court of Henry County, the sum of $14,693.35.” The trial court also ordered as follows: “Upon payment of said sum into the Registry of this Court it is further ORDERED that Osborne Bonding Company, Surety be and is thereby DISCHARGED from the supersedeas bond and judgment in [the underlying] case [involving defendants and Riverdale Collision] and is not responsible for any additional sums in said case. This order in no way limits the recovery of any cost, interest, or any other amount due [Riverdale Collision] or any other party in this case as provided by law.”

Riverdale Collision filed a direct appeal in Case No. A95A2600 and Osborne Bonding filed a cross-appeal in Case No. A95A2601. Held:

In Hughes v. Star Bonding Co., 137 Ga. App. 661 (224 SE2d 863), a surety brought a declaratory judgment action seeking to avoid liability under a supersedeas bond it issued pursuant to an order entered in another action involving the surety’s principal. The trial court granted the surety a temporary injunction precluding any attempt to collect the judgment in the underlying case. The Court of Appeals reversed, finding that the trial court erred in failing to dismiss the surety’s petition for failure to state a claim upon which relief could be granted. Hughes v. Star Bonding Co., 137 Ga. App. 661, 664 (4), supra. Following this holding, we vacate the judgments of the trial court and remand the cases sub judice.

A final judgment was entered against Osborne Bonding based on the supersedeas bond, and it does not appear that that judgment has been challenged or otherwise modified, vacated or set aside. Osborne Bonding therefore cannot go behind the judgment, as a defendant in fi. fa., and attack the validity of the instrument upon which the judgment is based, having (for what is known from the records before this Court in the cases sub judice) already had its day in court. See Haynes v. Armour Fertilizer Works, 146 Ga. 832, 835 (92 SE 648). Accordingly, the trial court had no authority to act on Osborne Bonding’s petition to set aside the supersedeas bond. The judgments in the cases sub judice must be vacated and the cases remanded with directions for the trial court to vacate its order discharging Osborne Bonding from any further liability under its surety bond.

Decided March 12, 1996

Albert B. Wallace, Stephen B. Wallace II, for appellant.

Stephen E. Boswell, for appellee.

Judgments vacated and, cases remanded.

Andrews and Blackburn, JJ., concur.


text:
    A95A2695.
    GRANGE MUTUAL CASUALTY COMPANY v. WILLIAMS.
    (469 SE2d 845)
   McMurray, Presiding Judge.

Plaintiff Doris Williams sued Shantelle Johnson seeking to recover for personal injuries to plaintiff’s neck and lower back arising out of an automobile collision. Defendant Grange Mutual Casualty Company (the “insurer”) was served in its capacity as an alleged uninsured motorist carrier under an automobile insurance policy it had issued to plaintiff. According to the complaint, plaintiff’s car was stopped at an intersection waiting to turn left. A second car was stopped behind plaintiff’s. Shantelle Johnson, driving a third (borrowed) car, crashed into the second car “stopped immediately behind the plaintiff’s causing it to crash into plaintiff’s car.” Shantelle Johnson did not answer the complaint or requests for admissions, nor did she testify at trial.

The evidence at trial indicated that this collision did not result in any obvious physical damage to the rear of plaintiff’s car, although afterwards, plaintiff’s transmission “seemed like it was slipping out of gear sometimes.” Sitting in her car, plaintiff felt “dizzy and lightheaded.” She told the emergency medical technician at the scene that she was “having problems with [her] head and [her] neck and the lower part of [her] back. . . .” Plaintiff also experienced “some numbness in [her] hands . . . [that] start[ed] appearing . . . about five or six minutes after the accident happened.”

The jury found for plaintiff, awarding her a total of $24,000, consisting of $21,547.57 for pain and suffering; $400 for lost wages; and $2,052.43 for medical bills. This direct appeal followed. Held:

1. In its second enumeration, the insurer contends the trial court erred in refusing its motion for new trial because the “verdict was contrary to the evidence and the verdict was strongly against the weight of the evidence.”

“No court except the trial court is vested with the authority to grant a new trial in a matter relating to the weight of the evidence. [Cit.] ‘The appellate courts are not vested with discretion in this regard as are . . . the trial courts.’ [Cit.]” Allstate Ins. Co. v. Brannon, 214 Ga. App. 300, 304 (5) (447 SE2d 666). See also OCGA § 51-12-12 (b). “Thus, the only query [raised by this enumeration] is whether the evidence supported the verdict. [Cits.]” Daniels v. Hartley, 120 Ga. App. 294 (170 SE2d 315).

(a) With respect to the jury’s award of $21,547.57 for pain and suffering, the insurer argues in its brief that this item of damages is “strongly against the weight of the evidence [because plaintiff] Williams suffered no broken bones [so that] this was merely a soft tissue injury case.”

“The question of damages is ordinarily one for the jury[.]” OCGA § 51-12-12 (a). “ ‘The sole measure of damages for pain and suffering is the enlightened conscience of fair and impartial jurors. [Central R. & Banking Co. v. Dottenheim, 92 Ga. 425 (4) (17 SE 662).]’ Atlanta Transit System v. Robinson, 134 Ga. App. 170 [(1)], 171 (213 SE2d 547) (1975). We find no basis for upsetting the jury’s determination of such damages in this case.” Coker v. State Farm &c. Ins. Co., 193 Ga. App. 423, 424 (2) (388 SE2d 34).

(b) The jury’s award of $400 for lost wages, however, appears to exceed the range of the evidence. Although in her answers to interrogatories plaintiff set her pretrial estimation of lost wages at $1,500, at trial she affirmed that $100 per week “was the most [she] ever got during that period of time, and . . . that [she was out of work] for about three weeks, [resulting in] $300 that [she] lost in lost wages.” Consequently, the jury’s award of lost wages in excess of $300 is not authorized by the evidence and must be written off. The judgment of the trial court is affirmed on condition that, within 20 days of the trial court’s receipt of the remittitur, plaintiff accept an award for lost wages reduced by the $100 by which the jury’s original award exceeded the evidence. Otherwise, the judgment shall be reversed. See Bearden v. City of Austell, 212 Ga. App. 398, 400 (4), 401 (441 SE2d 782).

2. Our disposition in Division 1 (b) renders moot the insurer’s first enumeration, regarding the refusal of the trial court to give the insurer’s request to charge on all the statutory methods of impeachment.

Decided March 12, 1996.

. Martin, Snow, Grant & Napier, Jay C. Traynham, Wallace D. Bonner, Jr., for appellant.

Wilson, Davis & Donner, David M. Donner, for appellee.

Judgment affirmed on condition; otherwise reversed.

Blackburn, J., concurs. Andrews, J., concurs in judgment only.


author: Pope, Presiding Judge. Beasley, Chief Judge,

text:
    A95A2802.
    HALBERT v. HALBERT.
    (469 SE2d 534)
   Pope, Presiding Judge.

The question in this case is whether an ex-wife, under the terms of a qualified domestic relations order (“QDRO”), has the option of continuing to receive alimony beyond her ex-husband’s unreduced retirement date, or whether she must instead accept 35 percent of the retirement funds to which the husband would be entitled if he retired. Concluding that the QDRO was ambiguous on this issue, the trial court considered parol evidence and ruled that the ex-wife had the option to choose whether to continue to receive alimony or to collect her portion of the retirement funds. We cannot agree that the QDRO was ambiguous, however, and therefore reverse.

Paragraph 3 of the QDRO provides: “The Wife shall be entitled to 35% of the Husband’s interest in the retirement benefits payable under the Plan. Upon the earlier to occur of (i) the Husband’s retirement or (ii) the Husband’s Unreduced Retirement Date (as such term is defined in the Plan), the Plan shall pay to the Wife, whether or not the Husband has retired, an amount equal to 35% of all funds from the Plan to which the Husband is entitled or would be entitled if he retires . . . The Wife shall also be entitled to receive 35% of any early retirement subsidy available to the Husband when the Husband actually retires.” (Emphasis supplied.) This language clearly mandates that the ex-wife begin receiving the retirement benefits upon the ex-husband’s retirement or unreduced retirement date, whichever occurs earlier. No option is mentioned.

The trial court nonetheless found an ambiguity was created by the following language from paragraph 7 of the QDRO: “The Wife further reserves the right to obtain any benefits that may be available to her under the Plan, subject to any applicable reduction, at any time that the Husband may have had the right to retire from Lexmark with vested pension benefits under the Plan.” But this sentence is taken from the middle of a paragraph about benefits which may become available in the future; the full paragraph states: “The Wife reserves the right to obtain any benefits which may in the future become available to her under the Plan in the event that future federal legislation mandates, or Lexmark elects to permit, such benefits be made available to her (such as, for example, the right to obtain benefits in a lump sum). The Wife further reserves the right to obtain any benefits that may be available to her under the Plan, subject to any applicable reduction, at any time that the Husband may have had the right to retire from Lexmark with vested pension benefits under the Plan. Wife acknowledges that she will no longer be eligible for plan updates once she has begun to receive benefits under the Plan.” While paragraph 7 itself is not well written, the only reasonable way to read it is that its provisions refer only to rights or benefits which may become available as the result of a future change in the law or the plan. The trial court’s reading of this paragraph strains logic and creates a conflict with paragraph 3 that need not exist. See Friedman v. Friedman, 259 Ga. 530, 532 (3) (384 SE2d 641) (1989) (phrases must be read in context with surrounding language, and each provision should be read to harmonize with others if possible).

As the QDRO was not ambiguous and clearly mandated that the ex-wife begin collecting retirement benefits from the time of the ex-husband’s unreduced retirement date, the trial court’s ruling giving her the option of collecting them or not was error.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur. Beasley, C. J., dissents.

Beasley, Chief Judge,

dissenting.

I respectfully dissent because the trial court correctly construed the qualified domestic relations order to mean that the wife could choose to begin receiving a portion of the husband’s retirement benefits on either his retirement or on his “Unreduced Retirement Date,” as that term is defined in the pension plan maintained by the husband’s employer.

The entire order relates to the payments to be made to the wife, after divorce, in connection with the pension plan which otherwise would have covered her had the parties remained married. The order determined what her rights would be, authorized the plan administrators to make certain payments to her, and was drawn for the purpose, at least in part, of satisfying § 414 (p) of the Internal Revenue Code. The QDRO was referred to in the settlement agreement which covered all matters related to property, support, and children. As contemplated by the settlement agreement, the QDRO was subsequently prepared (by the wife’s counsel), executed by the parties, and made the order of the court. According to the settlement agreement, the QDRO had to be approved by the husband’s employer also, and apparently that was done.

The settlement agreement states that “[t]he Wife shall have vested rights in the Husband’s retirement benefits through his employer” which, when received, will be in lieu of alimony provided for elsewhere in the agreement. It also states in this paragraph that she “shall be further entitled to spousal protection on pre or post retirement benefits” in certain amounts. Handwritten into this paragraph is the provision that the Husband is to notify the Wife within five days of his termination of employment and within five days of the date he is to begin receiving retirement benefits.

Paragraph 3 of the QDRO provides that the wife “shall be entitled to” a certain percentage of the husband’s interest in retirement benefits upon his retirement or his unreduced retirement date, whichever first occurs. She is also “entitled to receive” a certain percentage of any early retirement subsidy he receives. This section, by its terms, does not require her to take this but rather entitles her to demand it; it is her right, to exercise or not, the only condition being that it will be in lieu of alimony as stated in the settlement agreement. However, according to the settlement agreement, alimony would automatically stop “upon the Husband’s retirement,” so the only period in which she would have a choice as a practical matter would be from the husband’s unreduced retirement date until the date of his actual retirement.

Paragraph 7 of the QDRO expressly reserves certain rights in the wife and provides for extinguishment of another right. Two rights are reserved: (1) the right to obtain additional benefits under the pension plan which might become available due to future federal legislation or employer action; and (2) the right to obtain benefits available to her when the husband has the right to retire with vested benefits. This latter right obviously refers to her benefits as set out in paragraph 3. It expressly provides a choice for her during the period when the husband can retire with benefits but chooses not to do so. During that period she can continue to receive alimony or she can receive benefits under the plan. If this is not the meaning, there was little if any purpose for the sentence. That meaning is to be preferred which will give effect to the contract as a whole. OCGA § 13-2-2 (4).

Reading the two interrelated documents together and the various pertinent provisions so as to be harmonious, as we are bound to do, Friedman v. Friedman, 259 Ga. 530, 532 (3) (384 SE2d 641) (1989), the terms of the QDRO are not ambiguous. “No construction of a contract is required or permitted when the language used by the parties is plain, unambiguous and capable of only one reasonable interpretation. In such a case, the language used is given its literal meaning and common ordinary words are given their usual significance.” Hunsinger v. Lockheed Corp., 192 Ga. App. 781, 782 (1), 783 (386 SE2d 537) (1989).

Decided March 12, 1996

Adele L. Grubbs, for appellant.

Richard L. Moore, Rebecca S. Walton-McFalls, for appellee.

Thus I reach the same conclusion as that reached by the trial court, although I do not find, as did the trial court, that the QDRO is ambiguous. Even if it were so, the result would be the same, applying the rules of construction applicable to ambiguous contracts. OCGA § 13-2-2. For one, the contract must be construed against the party who undertook the obligation. OCGA § 13-2-2 (5); Franklin v. Franklin, 262 Ga. 218 (416 SE2d 503) (1992). And, as the trial court found upon consideration of extrinsic evidence concerning the parties’ intention at the time the documents were executed, Gans v. Ga. Federal Savings &c. Assn., 179 Ga. App. 660 (347 SE2d 615) (1986), the intention of the parties was to allow the wife’s right to alimony not to be reduced before the husband actually retired.

“The cardinal rule of construction is to ascertain the intention of the parties.” OCGA § 13-2-3; Darby v. Mathis, 212 Ga. App. 444 (1) (441 SE2d 905) (1994). In obedience to this rule, the judgment of the trial court should be affirmed.