text:
    A95A2430.
    HADDON v. DEPARTMENT OF HUMAN RESOURCES.
    (469 SE2d 434)
   Smith, Judge.

The Department of Human Resources (DHR) ex rel. Catherine Wood, filed a “non-AFDC” petition against Haddon to recover child support for Anne Wood, Catherine Wood’s minor child. Haddon filed a motion to dismiss based on an order entered in probate court in 1978. The order approved and incorporated a settlement agreement entered into by Haddon and Catherine Wood. The agreement had been approved by the guardian ad litem appointed to represent Anne Wood. The trial court denied the motion, and we granted Haddon’s petition for interlocutory review.

The procedural history of this case is fundamental to our analysis. In early June 1977, a warrant was issued against Haddon reciting that he was the father of Anne Wood, a minor, and that he had abandoned the child. Subsequently, on April 3, 1978, Haddon and Catherine Wood executed a “contract and agreement” in which they expressed their desire “to forever settle, adjust and compromise the [abandonment] action as well as any and all other actions that may be brought regarding any child support, medical expenses or questions of paternity regarding the minor child for all times, past, present and future.” They agreed that paternity was disputed but that Haddon would pay Wood $4,400 in return for Wood’s release “from any and all claims, actions, . . . suits, whether legal or equitable for child support. . . paternity claims of every kind and nature . . . arising out of the birth of Anne Elizabeth Wood.” Wood also agreed to indemnify Haddon and hold him harmless in the event “she or anyone on her behalf or on behalf of her minor child . . . ever initiates any action . . . growing out of the birth” of the child “at any time whether past, present or future.” The agreement recited it was to be a full release and complete settlement of any liability claimed by Wood.

In early May 1978, the guardian ad litem appointed on behalf of the minor approved the agreement, and Wood filed in probate court a verified petition to compromise a disputed claim, also signed by the guardian ad litem. The petition tracked the language of the contract and agreement, reciting that paternity was in dispute but that Wood and Haddon wished to settle the abandonment action “as well as any and all other actions that may be brought regarding any child regarding child support ... or questions of paternity regarding the minor child.” It recited that Wood agreed to accept $4,400 from Haddon in consideration of Haddon’s release from future claims for paternity or child support. The petition also recited that Wood agreed to indemnify Haddon in the event future actions were initiated to recover child support. The probate court entered an order incorporating the terms of the agreement, allowing Wood to compromise “and make a full and final settlement in accordance with the terms of the . . . contract and agreement.” Additionally, the abandonment action in state court was nolle prossed.

On November 8, 1994, DHR ex rel. Catherine A. Wood filed a petition seeking to collect future child support for the minor child, over sixteen years after the contract and agreement was signed, approved by the guardian, and incorporated into the probate court order, and approximately four months before the child’s eighteenth birthday. Haddon moved to dismiss the petition. The trial court denied the motion and certified its order for interlocutory review. We conclude that the petition should have been dismissed because Wood was barred from bringing the action under the doctrine of laches, and we reverse.

We note initially the well-established rule that child support may not be waived. “Children . . . are not property, and absent a clear legislative declaration otherwise their support rights may not be bartered away by their parents.” (Citations and punctuation omitted.) Nelson v. Mixon, 265 Ga. 441, 442 (457 SE2d 669) (1995). Anne Wood’s support rights, however, were not “bartered away.” Instead, her entitlement to support from Haddon and the amount of that support were issues that were settled by agreement and court order. A child’s right to support extends only to support from the child’s parents, OCGA § 19-7-24, or to others with a legal duty of support, and in most cases, paternity must be established before a duty of support is imposed. See generally Hughes v. Dulock, 207 Ga. App. 492, 493 (1) (428 SE2d 406) (1993). Here, Wood never availed herself of the opportunity to establish Haddon’s paternity.

“The doctrine of laches not only forbids relief to one whose long delay renders the ascertainment of the truth difficult, though no legal limitation bars the right but also authorizes courts of equity to interpose an equitable bar, whenever, from the lapse of time and laches of the complainant, it would be inequitable to allow a party to enforce his legal rights.” (Citations and punctuation omitted; emphasis supplied.) Ehrhart v. Brooks, 231 Ga. 272, 275 (3) (201 SE2d 464) (1973). “In determining whether there has been laches, various things are to be considered, notably the duration of the delay in asserting the claim, and the sufficiency of the excuse offered in extenuation thereof, whether during the delay the evidence of the matters in dispute has been lost or become obscure . . . whether the party charged with laches had an opportunity to have acted sooner, and whether the party charged with laches acted at the first possible opportunity.” (Citation and punctuation omitted.) Id. at 275-276. See also Johnson v. Sears, 199 Ga. 432 (34 SE2d 541) (1945).

In Ehrhart, four years after an adoption judgment was entered, plaintiff filed an action against defendants, the adoptive parents of her natural child, seeking to set aside the judgment on the ground that her consent to the adoption had been obtained fraudulently. Id. at 275. Before filing the action, plaintiff had filed a complaint against defendants alleging they were unfit and had petitioned for habeas corpus in an attempt to bring the issue of custody before the court. Id. The issue of fraudulent consent was raised for the first time in the action to set aside the judgment, and the Georgia Supreme Court found that plaintiff was barred from seeking to set aside the petition.

Here, the action was filed nearly seventeen years after entry of the order incorporating the agreement made by Wood and Haddon and approved by the guardian ad litem. Wood did “exactly nothing” to attempt to set aside the probate court judgment during this time. Cannon v. Fulton Nat. Bank, 206 Ga. 609, 613 (57 SE2d 917) (1950). On the eve of the child’s majority, having had knowledge of a potential claim for the “whole of this period,” Johnson v. Sears, supra, 199 Ga. at 436, Wood attempted to ignore the court-approved settlement to which she was a party. No reason for the delay appears in the record.

To allow Wood to pursue a claim so long ago settled and approved by the probate court would be inequitable and would violate the time-honored and practical principle of finality of settlements and court orders. “A compromise of a dispute is binding on the parties. The law favors compromises, and a promise made in extinguishment of a doubtful claim is sufficient to support a valid contract. Where parties to litigation have entered into a definite, certain, and unambiguous settlement agreement, which is not denied, the trial court should make the agreement the judgment of the court, thereby terminating the litigation. ... In the absence of fraud or mistake, a party cannot complain of a judgment, order, or ruling that his own conduct produced or aided in causing.” (Citations and punctuation omitted.) Palmer v. Palmer, 198 Ga. App. 639, 640-641 (1) (402 SE2d 369) (1991).

Decided February 23, 1996.

Furlong & Franco, Walter W. Furlong, for appellant.

Thomas J. Charron, District Attorney, Charles E. Clark, Assistant District Attorney, Michael J. Bowers, Attorney General, Wil Ham, C. Joy, Senior Assistant Attorney General, Kevin M. O’Connor, David A. Hooker, Assistant Attorneys General, for appellee.

The terms of the settlement agreement were clear and unambiguous, and its existence has not been denied. By her failure to respond to requests for admissions of fact submitted by Haddon, Wood has admitted that she, as well as a guardian ad litem, executed a contract and agreement resolving all issues involved in this action and that a court entered an order approving the terms of the contract and agreement. The agreement definitely, clearly, and unambiguously recited that it was intended to be a full and final settlement of all claims, including claims for paternity and child support. Wood’s own conduct precipitated the settlement agreement, and she cannot now circumvent that agreement.

We recognize that the availability of blood tests may now make the ascertainment of true biological paternity somewhat less difficult. This potential claim, however, was not only compromised and settled in writing with all parties represented, including the child, but was also approved and incorporated into an unappealed order of the probate court. To allow a challenge to such an order and settlement at this late date because of advances in technology would put virtually any settlement at risk. Such a result would create the potential for great injustice to parties relying on settlements and court orders reciting that they represent full and final disposition of all potential claims. We will not allow a party to “slumber on [her] rights, lull[ing] the opposing party into a false sense of litigative security,” Fulton County v. Threatt, 210 Ga. App. 266, 268 (2) (435 SE2d 672) (1993), and then years later prevail against that party in litigation on those same issues. Attacks even on void judgments may be precluded when the litigant has so slumbered. Id.

Under the facts of this case, after considering all the factors involved in determining whether a litigant has waived the right to bring an action, we hold that Wood was barred by the doctrine of laches from seeking to recover child support.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.

       The petition for recovery of child support recites that it is “non-AFDC.” OCGA § 19-11-6 (c) provides that DHR “shall accept applications for child support enforcement services from any proper party or person notwithstanding the fact that the child or children do not receive public assistance.” The record does not expressly reveal the manner in which DHR became involved in this case. Under the statute, however, it is clear that even though DHR appears in the caption, Catherine Wood initiated the action by submitting an application for child support enforcement. Moreover, Black’s Law Dictionary, 5th ed., defines “ex rel.” or “ex relatione” as “[l]egal proceedings which are instituted by the attorney general (or other proper person) in the name and behalf of the state, but on the information and at the instigation of an individual who has a private interest in the matter.” (Emphasis supplied.)

       There was no claim that the sum agreed upon in the settlement and approved by the court was not paid. This action seeks only future child support.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A95A2521.
    DEPARTMENT OF TRANSPORTATION v. BLAIR et al.
    (469 SE2d 446)
   Johnson, Judge.

On Christmas day 1992, Jamie Blair was driving his car north on Davis Road in Coweta County when he stopped at a stop sign where the road crosses State Route 34. Fourteen-year-old Ronald Shane Blair, Jamie’s brother, was riding in the front passenger seat of the car and Shane’s friend Jeff Martin was in the back seat. As Jamie Blair drove from the stop sign across Route 34, a pickup truck heading west on Route 34 collided with the right side of the car, killing Shane Blair instantly.

Marlene Blair, the surviving parent of Shane Blair and administratrix of his estate, sued the Georgia Department of Transportation (DOT) for wrongful death, claiming that the DOT negligently maintained the stop sign on Davis Road because it was too low and blocked Jamie Blair’s view of the truck on Route 34. The DOT answered the lawsuit, denying liability. The case was tried before a jury, which returned a verdict of $506,078 in favor of Ms. Blair. The trial court entered judgment on the verdict, awarding Blair $496,078, based on the parties’ agreement that the jury’s verdict should be reduced by $10,000. The DOT appeals from the judgment.

1. The DOT claims the trial court erred in denying its motions for a directed verdict and judgment notwithstanding the verdict because there is insufficient evidence that the low stop sign proximately caused the collision. Specifically, the DOT argues that there is no proof Jamie Blair stopped his car at the exact spot where the sign created a blind spot and that the evidence shows Jamie Blair’s failure to inch forward until he could see past the sign was an intervening act of negligence which proximately caused the accident. These arguments are unpersuasive. There may be more than one proximate cause of an injury. Eubanks v. Business Equip. &c. of Atlanta, 161 Ga. App. 202, 203 (288 SE2d 273) (1982). Proximate cause is a question peculiarly for the jury, and the court should not take the place of the jury in solving it, except in plain and indisputable cases. Storer Communications v. Burns, 195 Ga. App. 230 (393 SE2d 92) (1990). In the current case, the question of proximate cause is not plain and indisputable, and therefore the trial judge correctly allowed the jury to resolve that question in reaching its verdict. “(O)n appeal [this] court is bound to construe the evidence in support of the verdict and judgment, and if there is some evidence to support the verdict we will uphold the judgment.” (Citations and punctuation omitted.) James v. Tyler, 215 Ga. App. 479, 480 (1) (451 SE2d 506) (1994). Because there is some evidence to support the jury verdict in this case, we will uphold the trial court’s judgment.

(a) The DOT’s first argument, that no evidence shows Jamie Blair was stopped at the exact spot where the sign would have blocked his view of Route 34, is without merit. At the outset, we note that uncontroverted evidence shows that the DOT is responsible for maintaining the stop sign; that the bottom of the sign was three feet above the pavement; that this three-foot height violates the Manual on Uniform Traffic Control Devices, which is followed by the DOT and which requires the bottom of such a stop sign to be at least five feet above the pavement; and that this low sign created a visual obstruction of Route 34 for drivers stopped and looking toward the east. A traffic safety and engineering expert testified that the low stop sign caused the greatest visual obstruction to a driver looking east while stopped on Davis Road in the spot where the driver’s head was between 14 and 14.5 feet from the edge of Route 34. A driver in this spot would not be able to see Route 34 from the point 325 feet from the intersection and beyond. The expert further gave his opinion, based on the circumstances of the accident, that Jamie Blair had in fact stopped at that critical point and that the sign had blocked his view of the oncoming truck when he looked to the east. Additionally, the state patrol officer who investigated the accident testified that the stop sign could have been a factor in the accident because it obstructed the view of Route 34 and when Jamie Blair looked to the east the truck could have been behind the sign. There was no evidence of any impediment to Jamie Blair’s view of the truck except for the low sign.

Furthermore, other testimony from the traffic engineering expert, from the DOT’s accident reconstruction expert, and from an eyewitness to the accident established that the extent of visual blockage caused by the sign varied depending on the spot where the driver stopped in relation to the sign. For instance, the closer a driver was to the sign, the greater the obstruction. Thus, contrary to the DOT’s argument, there was not only one spot at which Jamie Blair must have stopped in order for the sign to block his view; rather, there were various stopping places at which Jamie Blair’s view would have been obstructed and only the extent of that obstruction would have varied depending on his exact location.

Several witnesses testified about where Jamie Blair stopped in relation to the stop sign. Jamie himself testified that when he stopped the sign was to his right somewhere around the hood or door, that when he looked to the right the road appeared to be clear and that he did not realize the sign was blocking his view of Route 34. The back seat passenger Jeff Martin testified that the sign was real low and in front of the door. A witness who was behind Jamie Blair’s car at the stop sign before the accident said that Jamie had pulled up in a normal position at the stop sign and that the sign was approximately five to eight, feet in front of the car. The driver of the pickup truck testified that the sign was located around the hood area of the car and may have been as far back as the passenger door. It was the jury’s function to resolve any conflicts in this testimony and determine where Jamie Blair stopped his car. See OCGA § 24-9-80; Randall &c. Co. v. Randall, 202 Ga. App. 497, 498 (414 SE2d 718) (1992). The jury was authorized to conclude from all the evidence that Jamie Blair stopped his car in a place where the low stop sign blocked his view of the oncoming truck on Route 34.

(b) Contrary to the DOT’S second argument, the evidence does not require a finding that Jamie Blair was negligent in failing to inch forward until he could see past the sign. The evidence was in conflict as to whether there was enough room to inch forward safely in the manner the DOT suggests. Moreover, there was some evidence from which the jury could have found that because of the way the sign was situated Jamie Blair did not know that his view was obstructed, and thus he did not realize the need to inch forward to look past the blind spot. Finally, even if we assume that he negligently failed to see past the sign, Jamie Blair’s alleged negligence still would not necessarily relieve the DOT of liability for its negligent maintenance of the hazardous sign. “If the original negligent actor reasonably could have anticipated or foreseen the intervening act and its consequences, then the intervening act of negligence will not relieve the original actor from liability for the consequences resulting from the intervening act. That is a jury question.” (Citation and punctuation omitted.) Eu-banks, supra at 203. Here, the DOT reasonably could have foreseen that a driver stopped at the low sign might not realize that it creates an obstruction or that there is room to inch forward, and thus a driver might blindly drive onto Route 34 without seeing around the sign. Compare Black v. Ga. Southern &c. R. Co., 202 Ga. App. 805, 806-808 (1) (415 SE2d 705) (1992). The court also fully charged the jury on the issue of an unforeseeable intervening act and that if Jamie Blair proximately caused the collision, then the DOT could not be held liable even if it had been negligent.

“In determining whether the trial court erred by denying defendant’s motions for a directed verdict and motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict and judgment n.o.v. A directed verdict and judgment n.o.v. is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict.” (Citation, punctuation, and emphasis omitted.) Stone v. Allen, 201 Ga. App. 842, 843 (1) (412 SE2d 605) (1991). Here, because the evidence as to the proximate cause of the collision is in conflict and does not demand a certain verdict, and because some of that evidence supports the verdict that the DOT’s negligence in maintaining the low stop sign proximately caused the accident, the trial court did not err in denying the DOT’s motions for a directed verdict and judgment n.o.v. See Taylor v. McClendon, 205 Ga. App. 390, 391 (2) (422 SE2d 440) (1992).

Decided February 26, 1996

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, Carol A. Callaway, Eric A. Brewton, Assistant Attorneys General, for appellant.

Gleaton, Scofield, Egan & Jones, E. Clayton Scofield, Marla M. Eastwood, for appellees.

2. The DOT complains that the court erred in not giving its requested jury charge that damages should be apportioned between the DOT and Jamie Blair based on their respective negligence. Such a charge would have been appropriate if Jamie Blair had been jointly named as the DOT’s co-defendant in this case. See OCGA §§ 51-12-31 and 51-12-33. But because Jamie Blair is not a party to this lawsuit, such a charge would have been erroneous. The trial court properly determined that the DOT may be held individually liable, just like a private entity, for the full amount of Ms. Blair’s damages. See OCGA § 50-21-23 (a); Dept. of Transp. v. Brown, 218 Ga. App. 178, 183-184 (6) (460 SE2d 812) (1995); Johnson v. Landing, 157 Ga. App. 313, 317 (2) (277 SE2d 307) (1981). If the DOT believes that it is entitled to contribution from Jamie Blair, its remedy is to seek such contribution, not to have the jury in this case, in which Jamie Blair is not a named party, reduce Ms. Blair’s recovery. See OCGA § 51-12-32; Krasaeath v. Parker, 212 Ga. App. 525, 526 (1) (441 SE2d 868) (1994). Accordingly, the trial court did not err in refusing to give the requested charge.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


author: Beasley, Chief Judge.

text:
    A95A1999.
    AMERIBANK, N.A. v. QUATTLEBAUM.
    (469 SE2d 462)
   Beasley, Chief Judge.

Ameribank makes two arguments for reversal, neither of which is supported by the facts or the law.

Robert Quattlebaum, Jr., a physician, was a guarantor for his son, Robert Quattlebaum III, who, together with Isaacson, had given a security deed to Ameribank. Ameribank exercised its power of sale and applied to the superior court to confirm the sale under OCGA § 44-14-161. The confirmation hearing was eventually set for September 12, 1994, and a return of service was filed showing Quattlebaum, Jr., had been served with notice of the hearing and confirmation application on August 19.

The court initially confirmed the sale as to all parties but later set aside that portion of the confirmation order that found Quattlebaum, Jr., had been properly served, ruling that he had not been personally served with notice of the September 12 hearing on Ameribank’s confirmation application. It was from this set-aside order that Ameribank sought, and was granted, interlocutory appeal.

1. Ameribank first contends the evidence was insufficient to allow the court to conclude that Quattlebaum, Jr., had not been personally served. Quattlebaum’s own affidavit stated he had not been served and had found the papers on his office desk. His receptionist’s affidavit stated the deputy had handed her the papers and she put them on Quattlebaum’s desk. Two other office staff averred the deputy came in, told the receptionist he needed to give Quattlebaum some papers, waited a few minutes, gave the papers to the receptionist, and left.

The deputy who completed the return of service was deposed. His recollection of service was not strong. Although he stated he personally served Quattlebaum, he could remember no details of the event such as where in the office service took place, exactly how he met Quattlebaum, or who else he talked to. His statements about his routine in serving physicians revealed that he often left papers with office staff and that his superior had misgivings about such service procedures. His first answer to the question of whether he had “any independent recollection of handing Dr. Quattlebaum those documents” was: “Not personally, no.” After his deposition, the deputy corrected a portion of his testimony and stated that when he had told a paralegal investigating the service that he had personally served Quattlebaum, he had confused Quattlebaum with another physician.

The court’s order makes it clear that the court found the testimony of Quattlebaum and the other affiants more credible than the “equivocal” testimony of the deputy, and the evidence authorized the court’s finding of no personal service. See Hudson v. Williams, 188 Ga. App. 726, 727 (374 SE2d 220) (1988).

2. Ameribank also contends personal service of notice of the hearing is not required, only actual notice, which the court found Quattlebaum had. Ameribank did not raise the issue in its brief below, contending only that the deputy had personally served Quattlebaum. The court’s order does address the matter and concludes personal service is necessary.

Decided February 27, 1996.

J. Keith Berry, Jr., for appellant.

McCorkle, Pedigo & Johnson, David H. Johnson, Inglesby, Falligant, Horne, Courington & Nash, Kathleen Horne, for appellee.

The court was correct. OCGA § 44-14-161 (c) requires “that the debtor be personally served with notice of the hearing on the creditor’s application at least five days prior thereto. [Cit.]” Vlass v. Security Pacific Nat. Bank, 263 Ga. 296, 298 (1) (430 SE2d 732) (1993). The fact that Quattlebaum had actual notice of the hearing does not change the requirement for valid personal service. Phelan v. Wells Fargo Credit Corp., 207 Ga. App. 54, 55 (427 SE2d 46) (1993); see also Henry v. Hiawassee Land Co., 246 Ga. 87, 88 (269 SE2d 2) (1980).

Ameribank argues that Henry, upon which Phelan relied for its statement about notice, and which Vlass cited in support of its statement that personal service is required, was implicitly overruled by Vlass, and there is then no requirement for personal service of confirmation documents. The argument completely overlooks the fact that Vlass itself repeated the statement that personal service is required. It is true that Henry did note that methods of personal service could be found in the Civil Practice Act, OCGA § 9-11-4 (d). Vlass avoided the time requirements of OCGA § 9-11-4 by distinguishing a confirmation application under OCGA § 44-14-161 from a “complaint,” declaring the confirmation application to be other than a “civil action,” and declaring the confirmation application to be outside the coverage of the CPA. Vlass, supra at 296-297 (1), 298 (2). The requirement of personal service is clearly stated in Vlass and there is no suggestion we should not continue to look to the principles embodied in OCGA § 9-11-4 (d) for an understanding of what personal service means.

The trial court was justified in finding Quattlebaum, Jr., was not personally served, and it correctly concluded that such is required by the law.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       The two borrowers, Quattlebaum III and Isaacson, were served by mail to their attorneys, which attorneys had earlier acknowledged service of the confirmation application and notice of the hearing originally scheduled for June 27.


text:
    A95A2089.
    WILLIS et al. v. BRASSELL.
    (469 SE2d 733)
   Beasley, Chief Judge.

Defendants Willis and Coventry Holding Group, Inc. appeal a civil jury verdict for malicious prosecution (OCGA § 51-7-40) in favor of Brassell, alleging that the court erred in denying defendants’ motions for new trial and judgment notwithstanding the verdict (OCGA § 9-11-50 (b)) and in allowing the issue of punitive damages to go to the jury (OCGA § 51-12-5.1).

“Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. [Cits.]” Taylor v. Ga. Power Co., 136 Ga. App. 412, 413 (1) (221 SE2d 222) (1975). A trial court may grant a motion for j.n.o.v. only where there is no conflict in the evidence as to any material issue and the evidence, with all reasonable deductions, demands a particular verdict. See Allen v. Wometco Cable TV &c., 198 Ga. App. 103, 104 (400 SE2d 362) (1990). The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. Williamscraft Dev. v. Vulcan Materials Co., 196 Ga. App. 703, 704 (2) (397 SE2d 122) (1990). As long as there is some evidence to support the verdict, the denial of defendant’s motions for new trial and j.n.o.v. will not be disturbed. Bldg. Materials Wholesale v. Reeves, 209 Ga. App. 361, 364 (2) (433 SE2d 346) (1993); Wehunt v. Wren’s Cross of Atlanta &c. Assn., 175 Ga. App. 70, 72 (1) (332 SE2d 368) (1985).

Viewed in this light, the evidence supports the following findings of fact. Roberta Brassell was a nurse’s assistant responsible for the care of several elderly residents at Coventry Place, a retirement community. She was employed by Trimark Health Services, a contractor which provided special nursing services to elderly clients in the community. Coventry Place is owned and operated by Coventry Holding Group; its managing director is Daniel Willis.

Coventry Place, through Willis, was in the process of starting a special care nursing service which would directly compete with Trimark and was attempting to eliminate Trimark as a competitor for nursing services, so that Coventry would become the sole provider to Coventry Place residents. Tension existed between Trimark and Coventry Place personnel, harassment of the Trimark employees assigned to work at Coventry Place occurred, and “getting rid of’ Trimark was discussed at staff meetings. Trimark employees were required to sign in and out, ring a doorbell when entering the facility, and be escorted by a Coventry Place employee in the common areas.

Louis Flemister was a nearly blind 85-year-old resident. Renatta Diebold, Willis’s assistant, testified that Flemister could not read his mail or insurance forms or fill out his checks. He could not see elevator floor buttons but rather had to feel and count them to determine which button to press. He was able to sign his name only if someone held a finger where he was to sign or placed an “X” by the signature line.

When Diebold arrived at work on August 9, 1991, she found Flemister waiting outside Willis’s office. He reported that he had entered his apartment and found a black woman wearing green clothes in his room. When he accused her of taking his sleeping pills, she left. Diebold instructed Flemister to wait in the office until Willis arrived. Upon Willis’s arrival, Diebold related Flemister’s report. Willis took Flemister aside, conversed privately, and called the police.

Before the police arrived, Diebold told Willis that Mizell, another black female Trimark employee, usually wore green clothing and that she worked on Flemister’s floor. In fact, on the morning of Brassell’s arrest, Flemister had accused Mizell of stealing his sleeping pills when he saw her on the third floor. No one, including Willis, talked with or questioned Mizell before calling the police, even though she had signed in to work that morning. Willis sent an employee to the apartment of one resident in Brassell’s care, ostensibly to inquire as to the resident’s health but in fact to locate Brassell to determine the color of her clothing. Brassell has red hair and was wearing pink and white.

When the police arrived, Willis greeted them and spoke directly to Officer Berry. Berry testified that Willis reported that a black female with pink and white clothing and red hair was in Flemister’s room stealing his medication. Willis repeatedly stated in front of the police officer that Brassell worked on the third floor where the alleged criminal trespass occurred and suggested that Brassell may have changed from green to pink clothes. Willis did not tell the officer that Flemister had seen a black female wearing green clothing, that he could not identify her by name, that he had terrible eyesight, that there was a black female who worked down the hall from Flemister who usually wore green and was in fact then wearing green. The officer further testified that had Willis made these facts known, he would have expanded his investigation by re-interviewing witnesses, interviewing additional witnesses, confronting all suspects, and calling additional investigators to the scene.

Willis was described as “pleased” that Brassell had been arrested and commented, “Well, we are going to get rid of Trimark now.” Subsequently, Willis barred Trimark from doing business at Coventry Place and cited Brassell’s arrest as a reason.

Brassell was jailed for 13 hours. Flemister was brought to the police department and was interviewed by a detective. A magistrate issued a warrant for Brassell’s arrest. The magistrate testified that he issued the warrant after he satisfied himself that Flemister could identify the perpetrator as Roberta Brassell. He further testified that although Brassell was taken originally to the police station under a charge of burglary (OCGA § 16-7-1), the warrant was issued for criminal trespass (OCGA § 16-7-21 (b)).

By stipulation, the transcript of Flemister’s examination at Bras-sell’s preliminary hearing was read into evidence. He testified that he did not know Brassell’s name on the day she was arrested, that he had bad eyesight, that he was not wearing his hearing aid when he went to his room on the morning of the incident, and that the woman he saw in his room was wearing a tan and brown dress. He further testified that Willis called the police but he did not remember talking to them. He was unable to identify Brassell as the person he saw in his room, although he indicated she was about that person’s height. The court dismissed the case, and Brassell sued defendants for malicious prosecution.

“A criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action.” OCGA § 51-7-40. Although an aggrieved party has an especially heavy burden in such cases since his interest is weighed against the public’s interest in encouraging citizens to report violations of law, K Mart Corp. v. Griffin, 189 Ga. App. 225, 226 (375 SE2d 257) (1988), a plaintiff may prevail if each of the following elements is pled and proved: (1) prosecution for a criminal offense instigated by defendant; (2) issuance of a valid warrant, accusation, or summons; (3) termination of the prosecution in favor of plaintiff; (4) malice; (5) want of probable cause; and (6) damage to the plaintiff. OCGA § 51-7-40; Medoc Corp. v. Keel, 166 Ga. App. 615 (1) (305 SE2d 134) (1983); J. C. Penney Co. v. Miller, 182 Ga. App. 64, 66 (2) (354 SE2d 682) (1987). The question is whether each element is supported by evidence.

1. (a) At trial, defendants maintained that Willis merely told the investigating officer what he believed to be the truth and that the officer made his own independent investigation and decision to arrest Brassell, whereas Brassell contended that Willis instigated the prosecution for criminal trespass by withholding and misstating key information.

“The law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute. In the former case there is potential liability for . . . malicious prosecution [cit.]; in the latter case there is not. [Cit.] It is clear, though, that initiation of the criminal action need not be expressly directed by the party to be held liable. [Cit.] . . . [Cit.] ‘A distinction must be taken between actually instigating or procuring the institution of criminal proceedings and merely laying information before a law enforcement official without in any way attempting to influence his judgment.’ ” Ginn v. Citizens & Southern Nat. Bank, 145 Ga. App. 175, 178 (3) (243 SE2d 528) (1978). A person may be liable where “he gave information [to the investigating officer] which he knew to be false and so unduly influenced the authorities.” Prosser, Law of Torts (4th ed. 1971), p. 837, § 119, quoted in Melton v. LaCalamito, 158 Ga. App. 820, 822 (2) (282 SE2d 393) (1981).

Brassell presented evidence that tended to prove that Willis relayed to the police information which he knew to be false, misleading or materially incomplete, from which the jury reasonably could conclude that Willis was attempting to influence the police to prosecute: 1) Willis failed to relay to the police Flemister’s actual description of the suspect — a black woman wearing green —and that there was a woman who in fact matched Flemister’s description working on the same floor where the crime allegedly occurred; 2) learning that Bras-sell was wearing pink and white, Willis falsely stated to the police that Flemister had reported seeing a black woman so attired in his room. The officer’s testimony that he would have expanded the investigation had he known this evidences its significance. The defendants attempted to contradict and impeach Brassell’s evidence through testimony that Coventry Place had been apprised that residents had been missing medicine over a period of some time, that the daughter of one resident had complained Brassell entered her parents’ room without knocking, and that a resident had reported finding Brassell in her room in the middle of the night. The jury was entitled to weigh the sufficiency and credibility of the evidence, to accept Brassell’s factual contentions over defendants’, and to determine that Willis had instigated Brassell’s prosecution and arrest. Fuller v. Jennings, 213 Ga. App. 773, 777 (1) (445 SE2d 796) (1994).

(b) The jury could have inferred from the evidence that it was not reasonable for Willis to call the police without a more thorough investigation or verification and that his failure to inquire instigated the prosecution and arrest of Brassell. For example, neither Brassell nor the nurse’s assistant who regularly wore green was questioned prior to the police being called. “[W]here a reasonable man would investigate further before beginning the prosecution, he may be liable for failure to do so. All such factors as the reliability of the source, the availability of further information and the difficulty of obtaining it, the reputation of the accused, and [her] opportunity to offer an explanation, and the apparent necessity of prompt action, are to be considered in determining whether it was reasonable to act without verification.” Melton, supra at 824 (2) (b), quoting Prosser, supra at 842. See also Bi-Lo v. McConnell, 199 Ga. App. 154, 155-156 (2) (404 SE2d 327) (1991); Atlantic Zayre v. Meeks, 194 Ga. App. 267, 269 (1) (390 SE2d 398) (1990).

(c) Defendants contend that because Brassell was prosecuted for criminal trespass when they charged her with burglary, they cannot be regarded as having instigated the criminal proceeding. As authority for this argument, they rely on language from Prosser, Law of Torts, supra at p. 837, § 119, which was quoted with approval in Melton, supra at 823 (2) (a): “ ‘If the defendant . . . merely states what he believes, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer, or if the officer makes an independent investigation, or prosecutes for an offense other than the one charged by the defendant, the latter is not regarded as having instigated the proceeding; but if it is found that his persuasion was the determining factor in inducing the officer’s decision, or that he gave information which he knew to be false and so unduly influenced the authorities, he may be held liable.’ ” (Emphasis supplied.) Willis charged Brassell with entering into Flemister’s room without authority and stealing his sleeping pills. The investigating officer believed these factors constituted burglary. The magistrate determined that the allegations constituted criminal trespass. The act Willis charged Brassell with was precisely the offense for which she was ultimately prosecuted. It is the nature of the prosecution, not the express legal charge, which is the crucial ingredient.

2. The second and third elements of malicious prosection were proved in that the prosecution proceeded under a valid warrant issued by the magistrate and was dismissed at the preliminary hearing.

3. As to malice, “[it] consists in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual injured.” OCGA § 51-7-2. Malice may be inferred if “defendant’s acts were wanton or were done with a reckless disregard for or conscious indifference to the rights of the plaintiff.” Bowen v. Waters, 170 Ga. App. 65, 67 (2) (316 SE2d 497) (1984).

Brassell produced direct evidence of malice which included testimony that: (1) on several occasions before Brassell’s arrest, Willis stated he was going to get rid of Trimark, Brassell’s employer and the defendants’ competitor; (2) he was pleased after Brassell’s arrest; (3) after Brassell’s arrest, he stated he would now be able to “get rid” of Trimark; and (4) Willis thereafter barred Trimark from Coventry Place and cited Brassell’s arrest as a reason. A jury could determine that this evidence demonstrated an ulterior motive for Brassell’s prosecution and to conclude that Willis acted with malice. In addition, it supported the reasonable inference that Willis had no ground for his actions but his desire to injure Brassell’s employer, Trimark, and callously incidentally, Brassell.

4. In a case involving malicious prosecution, “Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused.” OCGA § 51-7-43. If probable cause existed at the time defendant set the criminal proceeding in motion, plaintiff cannot recover for malicious prosecution even if defendant had an improper motive. Smith v. Ragan, 140 Ga. App. 33, 34 (2) (230 SE2d 89) (1976).

Defendants maintain that the determination of probable cause was a legal question for the court to resolve. OCGA § 51-7-43 provides, in addition to what is quoted above: “Lack of probable cause shall be a question for the jury, under the direction of the court.” Thus, “[u]nless the facts regarding probable cause are undisputed, it is a question for the jury.” Fuller, supra at 775 (1). The facts were decidedly in dispute, leaving to the jury the task of determining if the circumstances were such so as to create an honest and reasonable belief in Willis’s mind that there was probable cause for the prosecution. Melton, supra at 823-824.

Probable cause can be found only after reasonable and proper inquiry. Sanfrantello v. Sears, Roebuck & Co., 118 Ga. App. 205, 206 (163 SE2d 256) (1968). It cannot exist if defendant knew that the facts stated to the law enforcement official were false or if he failed to make a fair, full, and complete statement of the facts as they existed, or if he concealed facts. The defendant’s belief then could not possibly be “honest” or “reasonable.” See Branson v. Donaldson, 206 Ga. App. 723, 724 (1) (a) (426 SE2d 218) (1992); Auld v. Colonial Stores, 76 Ga. App. 329, 335 (2) (45 SE2d 827) (1947). As discussed in Division 1 (a) and (b), Brassell presented evidence upon which the jury could have determined that Willis failed to make reasonable inquiry, failed to disclose material information, and falsified material information. This was a sufficient basis for finding not only that Willis instigated the prosecution but also that there was no probable cause to arrest Brassell.

Defendants cite Tench v. Turner, 201 Ga. App. 156 (410 SE2d 357) (1991), and McLeod v. Pruco Life Ins. Co., 215 Ga. App. 177 (449 SE2d 895) (1994), for the proposition that if defendant merely states the facts as he understands them and the police officer independently decides to investigate and arrest, defendant cannot be liable for malicious prosecution. These cases are distinguishable from Brassell’s case in that there was no evidence that defendant distorted or withheld information. Furthermore, in McLeod, the police detective executed an affidavit saying “the decision to charge (plaintiff) was made by [the detective] acting independently in (his) profession as an investigator based upon (his) experience combined with the facts as revealed to (him) by the witnesses and the circumstantial evidence.” Id. at 178. No such affidavit or statement was issued in this case.

Defendants contend that a magistrate’s finding is prima facie evidence of probable cause, citing Monroe v. Sigler, 256 Ga. 759, 760 (3) (353 SE2d 23) (1987). The actual holding of Monroe is that the magistrate binding over the accused on a criminal warrant or the issuance of an indictment is prima facie, but not conclusive, evidence of probable cause for the prosecution. The magistrate did not bind Brassell over but rather dismissed the case, as defendants stipulated at trial. Monroe is inapplicable.

5. Finally, there was sufficient evidence from which the jury could find that Brassell had suffered damages. Each element of malicious prosecution having been proved, the trial court properly denied defendants’ motions for j.n.o.v. and for new trial.

The jury specially found that punitive damages should be awarded, and as part of their punitive damages verdict, found that defendants had a specific intent to harm Brassell. As earlier stated, there was evidence to warrant a finding of malice. Under OCGA § 51-12-5.1, punitive damages may be awarded to penalize, punish, or deter a defendant in such actions where a plaintiff proves by clear and convincing evidence that the defendant’s actions showed “willful misconduct, malice, fraud, wantonness, oppression or that entire want of care that would raise the presumption of conscious indifference to the consequences.”

Moreover, “[Recovery in actions for malicious prosecution shall not be confined to the actual damage sustained by the accused but shall be regulated by the circumstances of each case.” OCGA § 51-7-47. The measure of damages in a malicious prosecution case is “ ‘the enlightened conscience of impartial jurors. (Cits.)’ ” Branson, supra at 726 (4). “Punitive damages are allowed where a defendant’s act was influenced by malicious motives and was without probable cause.” Atlantic Zayre, supra at 270 (2). By holding the defendants liable for malicious prosecution, the jury necessarily found that defendants acted with malice. In addition to an inference of malice, the evidence supported a finding that defendants acted with a “conscious indifference to consequences.” Felton v. Mercer, 149 Ga. App. 358, 361 (3) (254 SE2d 398) (1979).

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

Decided February 27, 1996.

Zachary & Segraves, J. Ed Segraves, for appellants.

Cashin, Morton & Mullins, James M. Sherman, O’Neal, Brown & Sizemore, John C. Clark, for appellee.

       Defendants contend that Brassell waived her preliminary hearing and that such waiver is prima facie evidence of probable cause. This contention is apparently based upon the testimony of the magistrate that Brassell must have waived her preliminary hearing because the word “waived” was handwritten on the front of her arrest warrant. This was apparently the result of some confusion, since a preliminary hearing was in fact held and portions of testimony from that hearing were read into the record of this case. Furthermore, Brassell never signed any document waiving her right to a preliminary hearing.


text:
    A95A2482.
    CENTURY 21 PINETREE PROPERTIES, INC. v. CASON et al.
    (469 SE2d 458)
   Johnson, Judge.

John and Melinda Cason signed a contract to purchase a house from David Govus for $575,000. The sale of the house, however, was not consummated. Century 21 Pinetree Properties, Inc., Govus’s broker, sued the Casons to recover its entire $46,000 broker’s commission, based on the contract term providing that the Casons agree to pay the full commission if they fail or refuse to perform any of the buyers’ covenants in the contract. The Casons answered the lawsuit and moved for summary judgment on various grounds. Century 21 filed a cross-motion for summary judgment. The trial court granted the Casons’ motion, but did not specify the reasons for that ruling and did not expressly rule on Century 21’s cross-motion for summary judgment. Century 21 appeals from the grant of summary judgment to the Casons.

1. Century 21 argues that the court, in ruling on the Casons’ motion, erroneously struck and refused to consider the affidavit of Melinda Cason in which she stated, in material part, that she wanted to buy the property, but her husband did not want to buy it because they were having marital problems and because of the distance they would have to travel to maintain the property. Contrary to Century 21’s argument, the trial court did not err in ruling that these material portions of the affidavit are protected by the marital communications privilege. See OCGA § 24-9-21 (1). “Subject to certain limited exceptions, the general rule in Georgia is that a privilege inures to the communicator for all communications made to a spouse for all consensual marital acts of a personal nature involving married persons, where the communication or act results from a reliance upon the confidential relationship of husband and wife. [Cits.]” White v. State, 211 Ga. App. 694, 695 (3) (440 SE2d 68) (1994). Here, John Cason’s alleged communications to his wife about his personal reasons for not wanting to purchase the house were made in the confines of the confidential marriage relationship and were thus privileged. Accordingly, the trial court correctly refused to consider those communications.

2. Century 21 asserts that the court erred in granting the Casons’ motion for summary judgment. We agree because none of the grounds for summary judgment advanced by the Casons proves that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law. See OCGA § 9-11-56 (c).

(a) The Casons contend that it is undisputed that Century 21 is not an assenting party to the contract and has no standing to enforce any of the contract provisions because it did not sign the contract. This contention is without merit. Clearly, the best way for Century 21 to have indicated its assent to the terms of the written contract would have been to sign the document. It fails to execute the written agreement at the risk of raising a defense such as the Casons raise here, creating confusion where it could easily have been avoided. Century 21’s failure to sign, however, is not necessarily fatal to its claims as the Casons suggest. “Assent to the terms of a contract may be given other than by signatures.” Cochran v. Eason, 227 Ga. 316, 318 (1) (180 SE2d 702) (1971); Rogin v. Dimensions South Realty Corp., 153 Ga. App. 75, 77 (264 SE2d 555) (1980). Evidence in the instant case shows that Century 21 acted as the broker in this deal; that Century 21 drafted the contract; that the contract expressly provides, “[i]n negotiating this contract, Broker has rendered a valuable service for which reason Broker is made a party to enable Broker to enforce his commission rights hereunder against the parties hereto”; that Century 21’s name and address, along with the names of two Century 21 salespeople who worked on this deal, are all typed on the contract’s signature page; and that Century 21 has made solemn in judicio admissions that it is a party to the contract. All of these factors create genuine issues of material fact as to whether Century 21 is a party to the contract even though it did not sign the document. See Puppy Love Kennel v. Norton, 158 Ga. App. 69, 70 (279 SE2d 312) (1981); Clyde Chester Realty Co. v. Stansell, 151 Ga. App. 357, 358 (1) (B) (259 SE2d 639) (1979). The Casons therefore are not entitled to summary judgment based on their claim that Century 21 did not assent to the contract terms.

(b) The Casons argue that because Century 21 acted as Govus’s broker, it cannot recover the commission from them. This claim is specious in light of the plain contract language providing that the Casons agree to pay Century 21’s full commission if they fail or refuse to perform under the contract. We have upheld such real estate contracts in which the breaching buyer agrees to pay the broker’s commission. See Stover & Sons v. Harry Norman, Inc., 187 Ga. App. 514, 515 (1) (370 SE2d 776) (1988); Clark v. Cox, 179 Ga. App. 437, 438 (2) (347 SE2d 4) (1986). “[I]t is general contract law . . . that parties are free to contract about any subject matter, on any terms, unless prohibited by statute or public policy, and injury to the public interest clearly appears.” (Citations and punctuation omitted.) McCoy v. H. N. R. Investment Group, 210 Ga. App. 645, 646 (2) (437 SE2d 355) (1993). The Casons cannot avoid the legal contract term which they freely agreed to by now claiming that Century 21 acted only on Govus’s behalf.

(c) The Casons argue that Century 21 has no basis upon which to sue them because no valid contract was actually formed between them and Govus. The contract provides that it shall be regarded as an offer by either the buyer or seller, whoever first signs it, and such offer is open for written acceptance by the other party until noon on August 23, 1993. Immediately after this provision, the contract states: “THE ABOVE PROPOSITION IS HEREBY ACCEPTED AT 7:00 O’CLOCK P.M., THIS 25th DAY OF August, 1993.” The signatures of Govus and the Casons appear just below this written acceptance. Although these signatures are not dated, the next page of the contract sets forth additional contract stipulations which were initialed by Govus on August 18, 1993, and initialed by the Casons on August 25, 1993. Based on these dated initials, the Casons assert that Govus signed the contract first, and was thus the offeror whose offer was open only until August 23, and that they did not sign the contract and accept the offer until August 25, after the offer had expired by its terms. Due to their untimely acceptance, the Casons reason, no contract was actually formed and they are entitled to summary judgment.

We disagree because even if we assume that Govus was the offeror and his offer was not accepted until after it had expired on August 23, there remain genuine issues of material fact as to whether a valid contract was nevertheless formed. If a contract requires that an offer be accepted within a stated time, no contract is formed when the offer is accepted after the stated time, unless the late acceptance became a counteroffer which was then accepted by the original offeror. Achour v. Belk & Co., 148 Ga. App. 306, 307 (251 SE2d 157) (1978). In the instant case, there are, at the very least, genuine issues of material fact as to whether the Casons’ late acceptance of Govus’s offer became a counteroffer which was in turn accepted by Govus. Accordingly, the Casons’ claim that they are entitled to summary judgment because no valid contract was formed is without merit.

(d) The Casons contend that they are entitled to summary judgment because they did not breach the contract; rather, the sale was not consummated due to Govus’s failure to perform a material condition precedent to the contract. The condition in question states: “Contract shall be contingent upon Seller obtaining from Cherokee Federal Savings Bank written confirmation that his present loan to such Bank will not be accelerated upon sale of subject property, and that such Bank will consent for the owner financing to Purchasers to contain ‘wrap-around’ provisions of the current debt from Seller to Bank.” The Casons claim that this contingency was not met because they never received the written confirmation from the bank. On the other hand, Century 21 argues that this contract condition requires only that Govus obtain the written confirmation from the bank, and does not require that he give a copy of that written confirmation to the Casons. Century 21 further claims that because Govus obtained the required confirmation in writing from the bank, the contract condition has been satisfied.

There are three steps in contract construction: the trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction; and if an ambiguity still remains, the jury must then resolve the ambiguity. Gram Corp. v. Wilkinson, 210 Ga. App. 680, 681 (1) (437 SE2d 341) (1993). Here, the contract provision in question is ambiguous in that it does not clarify whether the bank’s written confirmation must be provided to the Casons or whether the only requirement is that Govus obtain the written confirmation. Based on the record as it now stands before us, the ambiguity cannot be resolved as a matter of law by the court applying the rules of contract construction. “The cardinal rule of construction is to ascertain the intention of the parties.” OCGA § 13-2-3. Here, the parties’ intention cannot be definitively ascertained. The Casons state that they insisted on this stipulation for their, own protection, but Century 21 asserts that the stipulation protected only Govus by ensuring that the bank would not accelerate his outstanding loan so that after being paid at the closing he would have available cash. The evidence on this point is conflicting. The conflicting evidence as to whom the parties intended to be the beneficiary of this contract stipulation is material because, if the provision was meant only to protect Govus, then Century 21’s claim that the Casons are not entitled to the written bank confirmation is reasonable. But if the provision was meant for the Casons’ benefit, then they are correct in asserting that the only logical construction of the stipulation is that it requires that they too receive the written confirmation. Because this ambiguous contract provision, as the record now stands, presents a genuine issue of material fact, the Casons are not entitled to judgment as a matter of law.

(e) The Casons’ final basis for seeking summary judgment is that the contract provision requiring them to pay Century 21’s commission is not a valid liquidated damages provision, but is an unenforceable penalty. The Casons’ argument is misplaced because the payment of the commission is neither a penalty, nor liquidated damages. According to the contract, Century 21 rendered a valuable service by negotiating the agreement and it is entitled to be paid for that service, regardless of whether the sale is actually consummated. Thus, Century 21’s recovery is for services it performed in connection with negotiating the contract. See Stover & Sons, supra. By signing the contract, the Casons acknowledge that Century 21 is entitled to its commission. Because payment by the Casons is not a penalty nor damages, but is simply Century 21’s collection of its commission for services already rendered, the Casons’ claim for summary judgment is without merit. See generally Rybos v. St. Mary’s Hosp., 195 Ga. App. 474, 475 (2) (393 SE2d 739) (1990).

Decided February 27, 1996.

William L. Reilly, for appellant.

Sims, Fleming & Spurlin, John C. Spurlin, Walters, Davis & Pujadas, J. Harvey Davis, for appellees.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.


text:
    A95A2733.
    SOUTHEAST TIMBERLANDS, INC. et al. v. SECURITY NATIONAL BANK.
    (469 SE2d 454)
   Beasley, Chief Judge.

Southeast Timberlands appeals the trial court’s confirmation of a foreclosure sale carried out by its creditor, Security National Bank. Timberlands contends that a defect in the required advertisement made confirmation improper. Timberlands defaulted on a $362,000 note which renewed an original note issued for $400,000 in 1989. The property in question secured both notes. Because the advertisement was not defective per se, and because no evidence showed this alleged defect affected the selling price, we affirm the trial court’s confirmation.

1. Timberlands asserts that the published notice was defective as a matter of law because it referenced only a debt of $400,000 when that debt had been decreased to $362,000, the original note marked “paid by renewal,” and a renewal note issued. But the property pledged secured both the $400,000 note and “all other indebtedness, past or future, owed” by Timberlands to the bank. The advertisement accurately described the property pledged, Norwood Realty Co. v. First Fed. &c. of Atlanta, 99 Ga. App. 692, 695 (2) (109 SE2d 844) (1959), and no evidence showed the $362,000 renewal note extinguished any obligations under the original note. See C & S Nat. Bank v. Richardson, 190 Ga. App. 36 (378 SE2d 159) (1989) (renewal note does not extinguish original note unless parties agree otherwise); American Mtg. Co. &c. v. Rawlings, 127 Ga. 82 (1) (56 SE 110) (1906). The advertisement referenced “all renewal or renewals, extension or extensions of said indebtedness, either in whole or in part” and announced that the bank had declared the entire “balance,” not note, due and collectible.

The minimum legal requirements of a foreclosure advertisement are prescribed in OCGA § 9-13-140 (a), and only a failure to properly include those items will render the advertisement defective as a matter of law. Shingler v. Coastal &c. Credit Assn., 180 Ga. App. 539, 540 (2) (a) (349 SE2d 785) (1986). The amount of the debt is not one of the required items, see Wardlaw v. Woodruff, 175 Ga. 515, 517 (9) (165 SE 557) (1932), so a misstatement or overstatement of the debt does not render this advertisement legally defective. See First Nat. Bank of Atlanta v. Ferrell, 239 Ga. 8, 11 (235 SE2d 507) (1977), where it was held that so long as any obligation is in default, an advertisement improperly identifying the obligation in default is not error per se.

2. If a foreclosure advertisement is not defective as a matter of law, defects in it will prevent confirmation only if the factfinder determines those defects “chilled” bidding and caused an inadequate selling price. Boyce v. Hughes, 241 Ga. 357, 358 (1) (245 SE2d 308) (1978); see also Smith v. Citizens & Southern Fin. Corp., 245 Ga. 850, 853 (3) (268 SE2d 157) (1980). A primary object of the advertisement is to attract buyers who will compete against one another so. as to yield the highest price; its contents are important to the process. Thus, “[e]rrors that would not confuse the bidding intentions of any potential bidder of sufficient mental capacity to enter a binding contract for the sale of the real property do not show a chilling of the sale so that a fair market value bid was not obtained.” Williams v. South Central Farm Credit, ACA, 215 Ga. App. 740, 742 (2) (452 SE2d 148) (1994). Timberlands concedes sufficient evidence supports the trial court’s implicit finding that the property brought fair market value. See Oates v. Sea Island Bank, 172 Ga. App. 178 (1) (322 SE2d 291) (1984).

Even without that concession, this alleged defect alone would not result in a required denial of the confirmation. The debtor in Boyce, supra at 358, made a similar argument when he challenged a foreclosure advertisement which improperly stated attorney fees and additional interest would be claimed against the property. As in this case, the debtor in Boyce argued that the improper claim of debt chilled bidding by making it appear a higher bid would be needed to purchase the property. The Court rejected that argument, noting that a bidder at a foreclosure sale is not required to bid the amount of the indebtedness. We likewise reject Timberlands’ argument.

Timberlands points us to older cases from other jurisdictions for the proposition that substantially overstating the amount of the debt may chill bidding, but one has to look no further than Smith, supra at 853 (3), to find recognition of that problem in our own cases. As the Supreme Court noted in Smith, however, a debtor might equally claim bidding was chilled by a failure to include the amount of a debt. In such circumstances, the factfinder is charged with determining whether language in the foreclosure advertisement chilled bidding. Id.

Timberlands does not challenge the notice of sale it received, compare Lee v. O’Quinn, 184 Ga. 44, 46 (3), (4) (190 SE 564) (1937), or the bank’s compliance with the procedures for judicial sales, see OCGA § 9-13-160 et seq.; it only asserts that improper information contained in the required advertisement made the sale defective. Considering the main purpose of the advertisement, as stated earlier, we recognize that many extraneous factors may influence bidders. This Court cannot create an ironclad form of advertisement to the public, not subject to challenge, any better than the legislature can. Consequently, we have consistently held that once the trial court determines the advertisement matches the legal requirements of OCGA § 9-13-140, any additions to or omissions from the notice are simply factors in the key determination whether the property was sold fairly for an adequate price. Walker v. Northeast &c. Credit Assn., 148 Ga. App. 121, 122 (2) (251 SE2d 92) (1978); see, e.g., West Lumber Co. v. Schnuck, 204 Ga. 827, 835 (3) (51 SE2d 644) (1949); Shingler, supra at 540. This process ensures the power of sale was exercised fairly, as required by OCGA § 23-2-114.

3. Timberlands has produced no evidence showing the alleged defect could have chilled the bidding. Instead, it agrees sufficient evidence supported the trial court’s implicit finding that the property sold for an adequate price. Unfortunately, the trial court made no explicit findings of fact and conclusions of law regarding the legality of the advertisement, any possible effect these alleged defects had on bidding, or the fair market value of the property. The trial court must specifically determine these and other specified matters. OCGA § 44-14-161 (b) and (c).

Although the summary nature of the court’s order impedes our review, the responsibility for assuring a detailed order rests with Timberlands, which failed to request it either before or after the ruling was made pursuant to OCGA § 9-11-52 (a) or (c). Pruitt v. First Nat. Bank of Habersham County, 142 Ga. App. 100 (1) (235 SE2d 617) (1977). This procedure for obtaining written findings is applicable to confirmation hearings. See Lanier v. Citizens State Bank, 186 Ga. App. 395 (367 SE2d 585) (1988) (decided under prior version of § 9-11-52). La Ronde v. Amsouth Bank of Florida, 203 Ga. App. 400 (416 SE2d 881) (1992), is a recent example of a case where the trial court did provide an explanatory order in a confirmation proceeding. As repeated in La Ronde, the court’s “findings and conclusions have the effect of a jury verdict.” Id. at 401.

In the absence of any indication to the contrary, we conclude the trial court determined these alleged defects did not chill the bidding or result in an inadequate price for the foreclosed property.

Decided February 27, 1996.

Groover & Childs, Denmark Groover, Jr., for appellants.

Chambless, Higdon & Carson, James F. Carson, Jr., for appellee.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A2880.
    HORIZON CREDIT CORPORATION v. LANIER BANK & TRUST COMPANY.
    (469 SE2d 452)
   Johnson, Judge.

Horizon Credit Corporation obtained a judgment against Randy and Robyn Haney in 1992. In January 1993, Horizon filed a garnishment action against Lanier Bank & Trust Company in order to collect the judgment. In its answer to the garnishment action, Lanier denied owing the Haneys any money but raised no issue concerning the validity of the affidavit filed with the garnishment. In March 1993, the trial court entered an order prohibiting Lanier from paying the Haneys without first satisfying Horizon’s judgment against them. In April 1995, two years after the order was entered, Lanier filed a motion to set it aside, arguing that a non-amendable defect appeared on the face of the record in that the affidavit for garnishment upon which the order was based was never signed by a judge or court clerk. The court granted Lanier’s motion to set aside the order. We granted Horizon’s application for interlocutory appeal.

1. We agree with Horizon that the absence of a judge’s or clerk’s signature on the affidavit for garnishment does not constitute a non-amendable defect justifying the grant of a motion to set aside a judgment.

OCGA § 9-11-60 (d) (3) provides that a motion to set aside may be brought based upon a non-amendable defect which appears upon the face of the record or pleadings. Where there is a non-amendable defect appearing on the face of the record or pleadings which is not cured by verdict or judgment and the pleadings affirmatively show that no legal claim in fact existed, the judgment is void. First Baptist Church of Roswell v. King, 208 Ga. App. 250, 252 (1) (430 SE2d 635) (1993). The presence of an amendable defect on the face of the record, however, does not void the action. See Hobbs v. Arthur, 264 Ga. 359, 361, n. 2 (444 SE2d 322) (1994). We hold that the absence of the judge’s signature on the affidavit for garnishment is an amendable defeet and the action, therefore, was not void.

OCGA § 18-4-61 provides that before a summons of garnishment issues, an affidavit containing certain information about the judgment entered against a defendant shall be made with the court and that the affidavit shall first be made and be approved by one of the persons specified in subsections (1) through (5). Lanier and Horizon agree that none of the persons listed signed the affidavit. Such an omission, however, is not fatal to the proceeding.

That an affidavit for garnishment is amendable is supported by clear statutory and case authority. OCGA § 18-4-3 specifically states that “[ujnless otherwise provided in this chapter, any affidavit . . . required or permitted by this chapter shall be amendable at any time before judgment thereon.” Furthermore, garnishment proceedings are governed by the pleading and practice provisions of the Civil Practice Act. OCGA § 18-4-1. “OCGA § 9-11-15 (a) allows a party to amend his pleading as a matter of course and without leave of the court at any time before the entry of a pre-trial order.” (Citation and punctuation omitted.) Gober v. Hosp. Auth. &c., 191 Ga. App. 498 (1) (382 SE2d 106) (1989). “The affidavit filed in a garnishment action is a pleading and can be amended as provided under both the Civil Practice Act and OCGA § 18-4-3 . . . which provides for amendment at any time before judgment is entered thereon.” Concert Promotions v. Haas & Dodd, 169 Ga. App. 711, 712 (314 SE2d 720) (1984); see Ivey v. Ivey, 170 Ga. App. 226 (1) (316 SE2d 840) (1984). Because there was no non-amendable defect on the face of the record or pleading, the judgment was not void on its face.

The Supreme Court reached a similar result in Mellon Bank v. Coppage, 243 Ga. 219 (253 SE2d 202) (1979). In Mellon Bank, the Court expressly disapproved of a decision in which the Court of Appeals held that an affidavit which was not sworn before a judge or clerk, despite a statutory provision requiring such, was insufficient and the proceeding therefore absolutely void. Id. The Supreme Court held that the failure to properly verify a petition is an amendable defect and that, therefore, a petition verified by a notary rather than a judge is not void ab initio. Id.

Contrary to Lanier’s contention, Jenkins v. Community Loan &c. Corp. of Savannah, 120 Ga. App. 543, 544 (171 SE2d 654) (1969), does not require that we reach a different result in this case. In Jenkins, this Court held that proceedings wherein the garnishment or attachment affidavits are subscribed to before unauthorized persons are void ab initio and the judgments based thereon are likewise void. As Horizon points out, the division of the Jenkins decision upon which Lanier relies cites as authority cases decided before the Civil Practice Act was adopted. As discussed above, the Act governs garnishment proceedings and provides for amendment of pleadings as of right. OCGA §§ 18-4-1; 9-11-15. “Since the adoption of the Civil Practice Act . . . , the courts of this state have held that the failure to verify is an amendable defect. [Cits.]” Mellon Bank v. Coppage, supra, 243 Ga. at 219. Jenkins was also decided prior to the 1976 enactment of OCGA § 18-4-3, which expressly permits garnishment affidavits to be amended at any time before judgment. We find it noteworthy that Jenkins has not been cited in any published Georgia appellate opinion since its publication 27 years ago. Inasmuch as any defect in the affidavit was amendable, the judgment was not void on its face, and was not susceptible to being set aside pursuant to OCGA § 9-11-60 (d) (3). Therefore, the trial court should have denied the motion to set aside the judgment. See Sunrise Bonding Co. v. Busbee, 165 Ga. App. 83, 84 (299 SE2d 153) (1983).

2. Moreover, Lanier waived its right to challenge the validity of the affidavit. Lanier received a copy of the affidavit and summons on January 29, 1993. The absence of the judge’s or clerk’s signature on the affidavit should have been readily apparent to Lanier at that time, and certainly before the judgment was entered on March 31, 1993. Lanier answered the summons, but asserted no objection to the affidavit’s validity in its answer, nor in its motions to dismiss or for summary judgment. “[E]very defense, in law or fact, shall be asserted in the responsive pleading thereto if one is required.” (Citations, punctuation and emphasis omitted.) Burnette v. McCarter, 211 Ga. App. 781, 782 (1) (440 SE2d 488) (1994). While Lanier could have amended the answer to include this defense at any time before the entry of a pre-trial order, it failed to do so. See OCGA § 9-11-15 (a). “If there was a defect in verification or lack thereof, it was an amendable one, waived by failure timely to object.” (Citations and punctuation omitted.) Crump v. Jordan, 154 Ga. App. 503 (1) (268 SE2d 787) (1980).

Lanier had a duty to exercise reasonable diligence to discover the defect and the ground for setting aside the judgment. See Fulton County v. Threatt, 210 Ga. App. 266, 268 (2) (435 SE2d 672) (1993). A party is precluded from using to set aside a judgment a ground which he had known or could have discovered through reasonable diligence. Id. “An appellant cannot slumber on his rights, lull the opposing party into a false sense of litigative security, and then years later obtain a set aside of a judgment on a ground that should have been discovered through exercise of due diligence and timely appealed.” Id.

3. In light of the foregoing, we need not consider Horizon’s remaining enumeration of error.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.

Decided February 27, 1996.

Glass, McCullough, Sherrill & Harrold, William A. DuPre IV, Bisbee, Rickertsen & Herzog, Brad A. Baldwin, Richard B. Herzog, Jr., for appellant.

Powell, Goldstein, Frazer & Murphy, David G. Ross, Sheridan M. Watson, Hamil & Dickinson, R. Timothy Hamil, David L. Dickinson, for appellee.


author: Ruffin, Judge.

text:
    A96A0179.
    RAHMAN v. THE STATE.
    (469 SE2d 450)
   Ruffin, Judge.

Following a bench trial, Kaleem Rahman was convicted of the following misdemeanor offenses: criminal trespass (OCGA § 16-7-21), simple battery (OCGA § 16-5-23), and abusive and obscene language (OCGA § 16-11-39 (a) (3)). In his sole enumeration of error, Rahman argues that the State’s injection of his ethnic origin and religious beliefs into the trial impugned the integrity of the proceedings and violated his federal and state constitutional rights. For the reasons which follow, we affirm.

The evidence at trial showed the following. The case arose after Rahman bought two chairs from a La-Z-Boy store. He found them unsatisfactory and decided to exchange them for a different style and upholstery. Rahman, his wife, and his stepson returned the chairs to the store. Rahman and his stepson unloaded one chair and carried it into the store by way of the front door. At that point, the store manager informed Rahman that he could not bring the chair in through the front and there was a loading dock in the back. They then drove the other chair around to the back where it was unloaded. Rahman and his wife then returned to the store, where they waited for the manager, who had helped them the previous evening. At least one employee offered to assist them but they decided to wait for the manager. After about 30 minutes, the manager approached them and said she needed to inspect the chairs before she could issue the paperwork necessary for the exchange. Shortly thereafter, while the paperwork was being processed, Rahman told the manager she was acting “rebellious,” like a “snappy little b. . .h.” The argument escalated and Rahman said “shut up you b. . .h” and poked the manager several times in the chest with a ballpoint pen. After the manager threatened to call the police and placed the phone on the counter, Rahman threw it at her, striking her shoulder. Both a La-Z-Boy employee and a customer witnessed Rahman throw the phone. Rahman then left after retrieving his credit card.

Decided February 27, 1996.

Cathy M. Alterman, Jonathan S. Lynton, for appellant.

At trial, during cross-examination of Rahman’s wife, the following exchange occurred: “Q: Where did you meet your husband? A: Auburn University in Auburn, Alabama. Q: Where is he from originally? A: Pakistan. Q: Do you know whether he’s Muslim? A: Yes. Q: You ever been to Pakistan with him? A: No I haven’t. Q: Are you familiar with the woman’s role in Muslim countries? A: I understand the stereotype.”

Rahman contends that his constitutional rights were violated by this exchange.

The gratuitous injection of irrelevant and potentially prejudicial ethnic and religious stereotypes at trial is never appropriate, particularly when the State is the offender. Because the record shows that Rahman failed to object at trial, however, the error is not preserved for appellate review. Walker v. State, 258 Ga. 443, 444 (3) (370 SE2d 149) (1988); Walker v. State, 216 Ga. App. 236 (454 SE2d 156) (1995). An error which is harmful, not waived, and uninvited by the appellant is still the prerequisite for reversal. Moreover, the trial court’s commendable approach to the issue was sufficient to quell any potential harm arising from the exchange and to raise serious questions about the propriety of this appeal. An error, though wrapped in glowing platitudes, is no stronger because of the platitudes. Had this case been tried to a jury, a different issue would have been presented.

Rahman maintains that the issue is reviewable nonetheless because it constitutes plain error. Federal courts broadly apply the plain error rule, thereby allowing appellate review for the first time on appeal of errors so clearly erroneous that they result in a likelihood that the trial’s outcome was unjust or which “seriously [affect] the fairness, integrity or public reputation of a judicial proceeding.” (Citation and punctuation omitted.) Lynd v. State, 262 Ga. 58, 61, n. 2 (414 SE2d 5) (1992); Owens v. State, 263 Ga. 99 (2) (428 SE2d 793) (1993). In contrast, Georgia law generally limits the rule’s application to capital cases. Derrick v. State, 263 Ga. 766 (2) (438 SE2d 903) (1994); Owens, 263 Ga. at 101. However, in this case, the trial court noted that it did not consider this evidence in reaching the judgment. Thus, Rahman’s argument fails when analyzed as plain error. Derrick, 263 Ga. at 768.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

Paul L. Howard, Jr., Solicitor, Michael S. Moody, Cynthia Strong-McCarthy, Deborah W. Espy, Assistant Solicitors, for appellee.


author: Smith, Judge.

text:
    A95A2148.
    NORMAN v. WILLIAMS et al.
    (469 SE2d 366)
   Smith, Judge.

Jimmy Lee Norman, an employee of the Georgia Department of Transportation (DOT) was struck and killed by a truck driven by David R. Williams. His surviving spouse and legal representative, Beverly Norman, filed a wrongful death action against Williams and his employer, Pepsi Bottlers. The case was tried before a jury, which returned a verdict in favor of the defendants. Mrs. Norman appeals from the judgment entered by the trial court on the verdict.

On appeal, several of Mrs. Norman’s contentions concern the trial court’s charge to the jury. She contends the trial court erroneously charged the jury on the doctrines of assumption of risk, comparative negligence, and avoidance of consequences of another’s negligence. She also complains about the trial court’s failure to give certain charges requested by her, about evidentiary rulings made by the court regarding witness opinion evidence, and about the restrictions on closing argument made by the trial court. We find no reversible error and therefore affirm.

On June 11, 1990, Jimmy Norman’s vehicle experienced a mechanical failure and was rolled onto the shoulder of the road just past the foot of the Moreland Avenue exit ramp on Interstate 20. While he and another DOT employee waited for the vehicle to be repaired, Mr. Norman crossed the exit ramp to relieve himself. As he returned across the ramp, he was struck by the vehicle driven by Williams, which was exiting the interstate onto the ramp. Williams was the only eyewitness to the collision. The officer who investigated the accident testified that in his opinion, Mr. Norman re-entered the roadway from a culvert or ditch.

1. Relying in large part on Beringause v. Fogleman Truck Lines, 200 Ga. App. 822 (409 SE2d 524) (1991), Mrs. Norman contends the trial court erroneously charged the law on assumption of risk. She contends that her husband must have had knowledge of very narrow circumstances to have assumed the risk of his own injury. She argues that evidence was presented that Williams exited from the interstate suddenly and rapidly, and no evidence was presented that Mr. Norman knew that Williams would precipitously veer onto the ramp without using the deceleration lane. In support of her contention that Mr. Norman had no knowledge of Williams’s future negligent behavior, she points out that Williams admitted he saw Mr. Norman stop in his attempt to cross the ramp and turn toward him in apparent surprise before he was struck.

We disagree. First, as to the contention that a deceleration lane was available for Williams’s use and that Williams misused it, the existence of such a lane was hotly contested at trial. Two witnesses, including a DOT investigator, testified that no such lane existed. Further, and more fundamentally, Mrs. Norman’s reliance on Beringause is misplaced. The language on which she relies is dicta, and this case is distinguishable from Beringause on its facts. In Beringause, a driver in a potentially dangerous convoy was struck by a swerving truck as he was lawfully traveling in his own lane using flashing emergency lights and expecting other drivers to use care to avoid hitting his vehicle. In this case, Mr. Norman, a 12-year DOT employee “fully aware of the potential hazards existing on a high speed controlled access highway,” nevertheless attempted to cross a vehicular area on foot from a position of partial concealment and then turned to look for oncoming traffic. Beringause simply is not apt.

Reversal of this case based on dicta in Beringause would be tantamount to adoption as a matter of law of a rule that a pedestrian darting into a busy street, even with knowledge of the presence of vehicles, could never be found to have assumed the risk of injury. We will not apply Beringause in such a broad manner. We are not determining as a matter of law (as in a motion for summary judgment or directed verdict) whether Norman assumed the risk of his injury. Our duty, instead, is simply to determine whether some evidence was presented that provided the basis for an assumption of risk charge.

As noted above, there was some evidence that Mr. Norman was an experienced DOT employee, who had knowledge of highway hazards. Indeed, the evidence showed that caution cones and flashing lights marked the area around the disabled truck and a repair truck near it. Mr. Norman left this established safe area, crossed an interstate highway exit ramp near the bottom of the ramp, and attempted to re-cross the ramp from a place of concealment, a culvert or ditch, without stopping to determine whether he could proceed safely. The jury could have found from the evidence that he deliberately dashed onto the ramp “without any apparent effort to ascertain or verify” the safety of doing so. First Pacific Mgmt. Corp. v. O’Brien, 184 Ga. App. 277, 281 (361 SE2d 261) (1987). See generally Vaughn v. Pleasent, 219 Ga. App. 8, 9-10 (2) (463 SE2d 548) (1995). Furthermore, a stop sign was posted at the top end of the exit ramp. Mr. Norman was crossing the roadway at a place that was not a crosswalk or other place where traffic was obligated to stop. “It was thus a jury question as to whether [he] had assumed a greater risk from vehicles using the main thoroughfare than would a pedestrian passing over a crosswalk [cits.]” or where a stop sign was located. Hill v. Copeland, 148 Ga. App. 232 (1) (250 SE2d 822) (1978). Had the trial court refused to charge on assumption of risk, it would have denied appellees “the opportunity to have the jury consider assumption of the risk as a complete defense to . . . liability.” City of Eatonton v. Few, 189 Ga. App. 687, 691 (5) (377 SE2d 504) (1988). The trial court did not err in granting appellees’ request to charge on assumption of risk.

2. Mrs. Norman contends the trial court erroneously failed to charge the jury “that the driver of an automobile has no right to assume that the road is clear, but must keep a diligent lookout ahead for pedestrians and traffic, particularly at places where the conditions are such that there are reasons for anticipating the presence of other vehicles and persons.” The facts of this case are distinguishable from those in Fountain v. Thompson, 252 Ga. 256 (312 SE2d 788) (1984), relied upon by Mrs. Norman. In Fountain, the defendant ran over an individual lying comatose in the highway, and the Supreme Court held that “such a person is owed a duty of care where he is lying in the open on a flat road, even though undiscovered.” Id. at 257.

The distinction between an individual lying in the open road and one darting into the roadway was recognized in Tucker v. Love, 200 Ga. App. 408 (408 SE2d 182) (1991), where the decedent ran into the street into the path of a bus. Finding no error in the trial court’s refusal to charge the jury that the defendant had a duty to discover the victim in the roadway, this court found that the victim was not lying in the highway when the collision occurred, “but rather was in the process of running across the street.” Id. at 409. Here, the jury could infer from the evidence that Mr. Norman ran onto the roadway into the path of Williams’s vehicle. Moreover, the trial court charged the jury that a driver’s duty is to “exercise due care to avoid colliding with any pedestrian upon any roadway.” The trial court did not err in refusing to give the requested charge.

3. Mrs. Norman contends the trial court erroneously failed to charge on OCGA § 40-6-20, regarding official traffic control devices. The record does show that a yellow sign with the legend “exit 30 m.p.h.” was located near the area of the fatal impact. Testimony, including that of Mrs. Norman’s own expert, revealed, however, that the sign was an “advisory sign.” The expert testified, “It’s a judgment to use the sign to begin with, and it’s a further judgment exactly where you place it.” Expert testimony regarding the sign also showed that the “posted” speed limit was higher than that of the advisory sign, that a driver should be at the advisory speed by the time he reached the end of the ramp so that he could stop at the stop sign there, and that the speed was to be reached “somewhere” on the ramp. Mrs. Norman’s request to charge made no mention of this advisory speed. Because the sign was not mandatory, the trial court did not err in refusing to charge the requested Code section.

We do not agree with Mrs. Norman that Fabian v. Vincent, 155 Ga. App. 464 (270 SE2d 858) (1980) demands a contrary result; that case involved an alleged violation of an official traffic control device, a “no parking” sign. Further, Maxwell v. State, 97 Ga. App. 334 (4) (103 SE2d 162) (1958), also relied upon by Mrs. Norman, actually supports the conclusion that the trial court did not err in refusing to givé the charge. In Maxwell, the trial court gave a charge on former Ga. Code Ann. § 68-1638 when the accused was charged with crossing a double yellow line. This Court reversed, holding that a solid yellow line is not a sign defined by law and is not an official traffic control device. Similarly, the “advisory sign” is not provided for or defined by Georgia law, and the trial court did not err in refusing to charge regarding advisory signs.

4. Contending no evidence supported a finding that Mr. Norman was negligent, Mrs. Norman also contends the trial court erroneously charged the law of comparative negligence. As noted in Division 1, a rational trier of fact could have inferred from the evidence that Mr. Norman entered the roadway without warning and without determining whether that action was safe. Only slight evidence need exist from which an inference of comparative negligence may be drawn to authorize such a charge. Davis v. Hammock, 123 Ga. App. 33, 36 (3) (179 SE2d 283) (1970). Evidence was presented from which the jury could infer that Mr. Norman assumed the risk of injury to himself or that his negligence was greater than any of Williams. Because his presence on the highway is required, a highway worker engaged in his work does enjoy a “special status,” and he is “justified in assuming that the driver of an automobile will exercise some care to avoid striking him.” Myers v. Pearce, 102 Ga. App. 235, 241 (3) (115 SE2d 842) (1960). But while Myers helps define the status of one working on the highway, the holding there has nothing to do with whether a comparative negligence charge is appropriate in a case with evidence that supports a contention of substantial negligence on the part of the worker. The trial court did not err in giving the requested charge on comparative negligence.

5. Mrs. Norman also contends the trial court erroneously instructed the jury that she could not recover if Mr. Norman failed to use ordinary care in avoiding the consequences of Williams’s negligence. Even assuming Williams was somehow negligent, the jury could have inferred from the evidence that Mr. Norman failed to exercise ordinary care to avoid that negligence. The jury, for example, could have inferred that he failed to look in the direction of oncoming traffic until after he had proceeded onto the roadway. We therefore find no merit in this enumeration.

6. Mrs. Norman complains the trial court erroneously sustained Williams’s objection to testimony from the medical examiner regarding his findings from the autopsy performed on Mr. Norman. Defense counsel did not object to introduction of the findings, or conclusions, of the medical examiner. Instead, counsel objected to his description of the actual procedure performed on the organs of Mr. Norman’s body, because it was irrelevant and was “difficult material for people to deal with for no reason.” The court did not rule on the issue, and plaintiff’s counsel stated he did not intend to examine the witness about such matters. Counsel then interrogated the medical examiner about his findings and conclusions, including the type of injuries and the cause of death, and he abandoned the area of inquiry about which he now complains. We find no merit in this contention.

7. Mrs. Norman contends the trial court erroneously failed to restrict opinion evidence from a defense witness that Williams “did everything humanly possible to avoid the accident, and had no chance to react in time.” She maintains that the comment was an opinion based on hearsay. The witness’s conclusion was elicited after the witness, a DOT employee (and again, the friend of Mr. Norman who testified that no deceleration lane existed, see Division 1, supra) testified about his work history with DOT, his extensive training in safety and accident investigation, and his investigation of this collision in the course of his duties as a district safety officer for DOT. His testimony regarding the scope of the investigation included information he learned through talking with witnesses, visiting the scene, and observing the police investigation. His own support staff from DOT assisted him in the investigation.

Although this witness’s conclusion may have been based in part on hearsay, that does not render it inadmissible. “Provided an expert witness is properly qualified in the field in which he offers testimony, [cit.] and the facts relied upon are within the bounds of the evidence, whether there is sufficient knowledge upon which to base an opinion or whether it is based upon hearsay goes to the weight and credibility of the testimony, not its admissibility.” Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 592-593 (4) (452 SE2d 159) (1994). Mrs. Norman complains that the witness was not proven to be an expert, but her objection to the testimony at trial was made on the ground that the conclusion was based on hearsay; Mrs. Norman did not object on the ground that the witness had not been proven to be an expert. We find no error.

Decided February 16, 1996

Reconsideration denied February 28, 1996

Richard E.. Stark, for appellant.

Carr, Tabb & Pope, W. Pitts Carr, for appellees.

8. Mrs. Norman complains that the trial court erroneously restricted the breadth of closing argument “regarding the apparent lack or inadequacy of the training . . . Williams received from . . . Pepsi.” Of course, deductions may be drawn from the evidence adduced at trial. Here, however, the record portions relied upon to support the contention that the issue was raised by the evidence do not appear to address training Williams received from Pepsi Cola. Williams agreed he had “special training in driving a truck” and was a professional driver trained to observe signs and lines in the roadway, and he testified he had been trained to use deceleration lanes. But counsel did not ask questions to determine the length of time Williams had been employed as a truck driver by Pepsi. Williams did state, “We’re trained to basically make sure that all vehicles behind us and to the left of us are — to kind of know where they are.” He also spoke of the “custom” of driving in the right-hand lane. While these responses did mention training and custom, they did not indicate the source of training and furthermore did not reveal that Williams was inadequately trained. The trial court has discretion to determine the scope of counsel’s comments during closing argument. Manning v. State, 207 Ga. App. 181 (424 SE2d 521) (1993). Under these circumstances, the trial court did not abuse its discretion in limiting counsel’s remarks on the adequacy of training provided by Pepsi.

9. Mrs. Norman contends the trial court erroneously granted Williams’s motion for partial summary judgment as to punitive damages. Since Mrs. Norman did not recover general damages, punitive damages are not recoverable, and this issue is moot. See Jenkins v. General Hospitals of Humana, 196 Ga. App. 150, 152 (395 SE2d 396) (1990).

Judgment affirmed.

Birdsong, P. J., arid Johnson, J., concur.

       The language on which Mrs. Norman relies is a direct quotation from Prosser & Keeton, The Law of Torts, § 68, p. 485 (5th ed. 1984): “It is not true that in any case where the plaintiff voluntarily encounters a known danger he necessarily consents to any future negligence of the defendant. A pedestrian who walks across the street in the middle of a block, through a stream of traffic travelling at excessive speed, cannot by any stretch of the imagination be found to consent that the drivers shall not use care to watch for him and avoid running him down. On the contrary, he is insisting that they shall. This is contributory negligence pure and simple; it is not assumption of risk. The plaintiff has exposed himself to the risk of future harm, but he has not consented to relieve the defendant of any future duty to act with reasonable care.” (Punctuation omitted; emphasis in original.) 200 Ga. App. at 823.

       While Mrs. Norman contends this is not a “dart out” case, Williams testified that as he was exiting onto the ramp, he “saw Mr. Norman running in the grassy area, coming across the ramp.”