author: Smith, Judge.

text:
    A98A1091.
    EMPIRE DISTRIBUTORS, INC. v. GEORGE L. SMITH II GEORGIA WORLD CONGRESS CENTER AUTHORITY et al.
    (509 SE2d 650)
   Smith, Judge.

This litigation arose from a dispute over the sale of tickets for the 1996 Centennial Olympic Games in Atlanta. Empire Distributors, Inc. (“Empire”) sued the George L. Smith II Georgia World Congress Center Authority (“GWCC”) and its general manager Khalil Johnson under 42 USC § 1983 and state constitutional takings law, alleging that they wrongfully forbade Empire’s use of tickets to Olympic events in the Georgia Dome that Empire had purchased from the Atlanta Committee for the Olympic Games (“ACOG”). The trial court granted GWCC’s motion for summary judgment, holding that Empire had no property interest in the tickets. Because the trial court erred in its construction of the relevant contract documents, and because factual issues remain for jury resolution, we reverse.

Summary judgment is proper only when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Applying the proper de novo standard of review to an appeal from a grant of summary judgment, we must view the evidence, as well as all reasonable conclusions and inferences drawn from it, in the light most favorable to the respondent. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Construed in this manner, the record shows that in 1990, Empire and GWCC entered into a ten-year lease agreement for a suite at the Georgia Dome. In November 1994, during Empire’s lease, GWCC sent to all suite holders, including Empire, a letter offering the opportunity to purchase tickets to Olympic events at the Georgia Dome “well in advance of the general public.” This letter stated that the offer was made on behalf of ACOG and instructed purchasers to deal directly with ACOG. In December 1994, Empire purchased approximately 1,200 tickets at a cost of $91,839 and paid that sum in full to ACOG before the deadline of July 31, 1995.

On August 1, 1994, before Empire’s purchase of the tickets, GWCC and ACOG executed a license agreement in contemplation of the use of the Georgia Dome for Olympic events. This agreement gave ACOG “exclusive use” of the Georgia Dome from June 1, 1996 through August 4, 1996. It provided that ACOG “shall have the exclusive rights in accordance with this agreement ... to control ticketing, admission and seating for all events within the dome,” including but not limited to “restrictions on admission of ticket holders ... distribution of tickets . . . ticket-taking . . . [and] retention of redeemed tickets.” It also provided that ACOG “shall have the exclusive right to sell or otherwise distribute tickets to events.” The agreement further required ACOG to offer suite licensees tickets both in their own or another suite and in the Dome’s general seating or “stadium area.” A similarly worded provision required ACOG to offer tickets to holders of a “club seat license.”

Early in 1994, Empire’s senior vice president informed Dome officials that Empire was dissatisfied with the suite license because of ticket allocation problems and other difficulties, and he stated Empire’s intention to find another party to take over the remainder of its lease. In October 1995, Empire reached an agreement with List Holders, Inc. (“LHI”) to assume the remainder of its lease. GWCC, Empire, and LHI executed a document styled “Consent to Full Assignment and Cancellation of Executive Suite License Agreement [Non-Participation Agreement] Release of Licensee” in which Empire agreed to transfer “all of [its] right, title and interest in the referenced existing license agreement” to LHI. This agreement also provided that it “shall operate as a cancellation of the existing license agreement and a mutual release by the authority and the licensee [Empire] and assignee of their respective rights and obligations thereunder.”

In a separate agreement, Empire offered virtually all of its previously purchased Olympic tickets to LHI upon payment of the purchase price to Empire, with the understanding that Empire would use the tickets if LHI did not pay for them by a certain date. On October 23, 1995, Empire notified GWCC by letter that it was entering into a separate contract with LHI for the Olympic tickets and would use them if LHI did not purchase them. GWCC’s reply letter did not object or respond to this proposal.

LHI failed to make timely payment of its annual license fee on the suite, and on May 8, 1996, GWCC notified LHI that it would be considered in default if it failed to pay within ten days. On or about May 7, 1996, GWCC informed Empire that LHI had not paid its license fee and that Empire would not be allowed to use the Olympic tickets unless it assumed the remainder of LHI’s lease and immediately paid the $80,000 license fee. Appellee Johnson candidly acknowledged that it was GWCC’s intention to use the Olympic tickets as “a lever, if you will, to assist in our collections.”

On July 2, 1996, Empire filed this action, but negotiations and correspondence continued between the parties for some time. ACOG for its part insisted to Empire that ACOG had exclusive control over Olympic tickets and that Empire could use them. ACOG also informed GWCC that failure to admit ticket holders would constitute a breach of ACOG’s agreement with GWCC. ACOG refused to repurchase the tickets from Empire or exchange them for other tickets, and GWCC refused to reimburse Empire. But evidence was presented that GWCC, through its counsel, agreed to a refund to an individual who had purchased Olympic tickets under the similar advance sale provisions for club seat licensees.

On July 8, 1996, 11 days before the Olympics began, GWCC offered to allow Empire to use the Olympic tickets if it agreed to a one time “event license” for $5,000 and a release of any claims against GWCC. Empire refused, contending the offer came too late for it to use or distribute approximately 1,200 tickets, which it had planned to give to customers and suppliers in other states and foreign countries. After further discovery, the trial court granted summary judgment to GWCC, and this appeal followed.

To resolve the merits of this appeal, we first must consider the applicable rules of contract construction. “There are three steps in the process of 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 (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the trier of fact must then resolve the ambiguity.” (Citations and punctuation omitted.) Municipal Elec. Auth. of Ga. v. City of Calhoun, 227 Ga. App. 571, 572 (1) (a) (489 SE2d 599) (1997). “[A]fter the application of pertinent rules of contract construction to the contract, extrinsic evidence becomes admissible to explain any remaining ambiguity. Moreover, parol evidence is admissible to explain an ambiguity in a written contract, although such evidence is inadmissible to add to, take from, or vary the writing itself.” (Citations and punctuation omitted.) Thomas v. American Global Ins. Co., 229 Ga. App. 107, 109 (2) (a) (493 SE2d 12) (1997). Finally, “the cardinal rule of construction is to ascertain the intention of the parties.” OCGA § 13-2-3.

Bearing in mind these rules of contract interpretation, we find that the trial court erred in failing to consider all the relevant contracts in the record. The license agreement executed by Empire is identical to that executed by LHI; both appear to have been prepared on a form created by GWCC. Both license agreements provide for the purchase of tickets for “special events,” and both explicitly state that the use of suites and purchase of tickets for such special events may be controlled and restricted by “the terms of the authority’s agreement with the event sponsor for such special event.” GWCC agrees to “endeavor to provide or to require the event sponsor to provide . . . an option to purchase” tickets, but “makes no promise that it will be able to provide all or any of the foregoing options.” The license agreements also provide that a ticket is “a contract between licensee and the event sponsor, not the authority.” These provisions demand reference to GWCC’s special event agreement with ACOG, since the license agreements explicitly refer to such agreements, and the trial court erred in refusing to consider the effect of that agreement on Empire’s dispute with GWCC and the construction of its contract.

Reading these interlocking contracts together, as we must, it is apparent that issues remain for jury resolution. The assignment agreement among Empire, LHI, and GWCC, for example, contains significant ambiguity. That agreement states that it “shall operate as a cancellation of the existing license agreement and a mutual release by the authority and the licensee and assignee of their respective rights and obligations thereunder.” In the face of the explicit language of the assignment releasing Empire and GWCC from their mutual rights and obligations under the original license agreement, it is by no means clear that Empire became subject to the terms of GWCC’s license agreement with LHI. Another, and equally plausible, construction would be that the termination of the license agreement left Empire in its statu quo at that time: in possession of the Olympic tickets that it had purchased from ACOG in accordance with and during the term of its license and which it paid for in full. At a minimum, the fate of the Olympic tickets under the terms of the assignment is ambiguous, and parol evidence such as the correspondence between Empire, GWCC and ACOG is admissible to determine the parties’ intent.

It is true that the GWCC license agreement requires the licensee “upon the license expiration date, or upon the earlier termination of the license” to return to GWCC “all keys to the suite or any cabinets or closets therein, and all unexpired tickets and parking passes theretofore issued to licensee.” But the assignment, as it explicitly states, cancelled the original license agreement and acted as a mutual release of all the parties’ rights and obligations. Empire thereafter was no longer a “licensee”; LHI was the licensee under the agreement in effect at the time. It is therefore a reasonable construction of the license to conclude that the Olympic tickets were never “issued” to LHI, the party obligated under the license agreement at the time of termination.

Moreover, while the trial court found that the term “all unexpired tickets . . . issued to licensee” included all tickets from whatever source, this is not consistent with the provisions of the license agreement regarding the purchase of tickets by the licensee. The term “issued” is used only for parking passes provided directly by GWCC, and GWCC is only required to “provide” tickets to certain regularly scheduled football games directly to licensees. In contrast, the license agreement gives merely an “option to purchase” tickets to other publicly ticketed events, and tickets to special events are “made available ... by the event sponsor” and GWCC simply will “endeavor to provide or to require the event sponsor to provide . . . an option to purchase.”

Even assuming, therefore, that Empire could still be considered a “licensee” although its license had been cancelled and all obligations released, the return requirement can reasonably be construed as limited to various tangible items, parking passes, and tickets actually issued by GWCC, as opposed to special event tickets issued by an event sponsor. This construction is in accordance both with the express provision in the license agreement that special event tickets are a contract between the licensee and special event sponsor, not GWCC, and with GWCC’s agreement granting ACOG exclusive rights to control ticketing, admission, and seating for all Olympic events in the Georgia Dome. At a minimum, the license agreement is ambiguous regarding the scope of the requirement to return “unexpired tickets.” Parol evidence such as testimony and correspondence is admissible to ascertain the true intentions of the parties regarding the disposition of the Olympic tickets.

In summary, the trial court erred in failing to consider the effect on the license agreement of the interlocking provisions of the ACOG agreement or the assignment to LHI of Empire’s licensing agreement and concurrent release of all obligations under the former agreement. But even reading these contracts together, and applying the rule that any ambiguity will be construed most strongly against the drafter, Gram Corp. v. Wilkinson, 210 Ga. App. 680 (1) (437 SE2d 341) (1993), the agreement between the parties regarding Olympic tickets purchased and fully paid for during the pendency of Empire’s license agreement remains ambiguous. A jury must consider the circumstances surrounding the transactions in order to determine the scope and effect of the agreements between the parties. “Parol evidence is admissible to explain all ambiguities, the question as to what was intended being an issue of fact for the jury. Even after the introduction of parol evidence, there remains a conflict in the evidence as to the intent of the parties, and this disagreement is an evidentiary, factual matter for resolution by the jury and not a matter of law for determination by the court.” (Citations and punctuation omitted.) Karlan, Inc. v. King, 202 Ga. App. 713, 715-716 (1) (415 SE2d 319) (1992).

Decided November 18, 1998

Reconsideration denied December 14, 1998

Troutman Sanders, Daniel S. Reinhardt, William M. Droze, for appellant.

Thurbert E. Baker, Attorney General, Ray O. Lerer, Senior Assistant Attorney General, Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, for appellees.

Viewing the evidence with all reasonable conclusions and inferences drawn from it, as we must, in the light most favorable to Empire, there is at least some evidence in the record from which a trier of fact could infer that GWCC granted ACOG exclusive control over the tickets to Olympic events in the Georgia Dome; that Empire purchased Olympic tickets from ACOG in accordance with and during the term of its license, retained the tickets, and informed GWCC of that fact; that GWCC acquiesced in Empire’s retention of the tickets; that GWCC directed ACOG to refund the money of at least one similarly situated Olympic ticket holder but refused to assist Empire; and that GWCC intended to use the Olympic tickets as a “lever” to persuade Empire to reassume the lease from LHI. The trial court therefore erred in granting summary judgment in favor of GWCC and Johnson.

Judgment reversed.

Johnson, P. J., and Senior Appellate Judge Harold R. Banke concur.

       Empire also sued List Holders, Inc., not a party to this appeal, for breach of contract.

       Empire contends that GWCC’s declaration of default as to LHI was ineffective for the period of the Olympics, as the initial default letter contained erroneous information and was not corrected until after GWCC used Empire’s original security deposit to pay LHI’s balance for the fiscal year in which the Olympics took place. But we do not reach this issue.

       The trial court’s assertion that there was no evidence that GWCC consented to this refund is contradicted by this correspondence, particularly the blind postscript directing: “please make sure ACOG refunds the ticket price.”


source: Caselaw Access Project

license: Public Domain

text:
    A98A1425.
    WILLIS MINING, INC. v. NOGGLE.
    (509 SE2d 731)
   Smith, Judge.

James R. Noggle d/b/a Reliance Granite Company (“Noggle”) filed this action against Willis Mining, Inc. (“Willis”) and Richard Lee Willis after a dispute arose over the sale of granite blocks. Noggle alleged claims under the Uniform Commercial Code, including breach of an implied warranty of merchantability, as well as claims for intentional interference with business relationships and slander. The defendants answered, and Willis counterclaimed for amounts it asserted Noggle owed on account. A jury awarded $300,000 to Noggle on the warranty claim against Willis. Willis appeals from the trial court’s denial of its motion for directed verdict and motion for a new trial on this issue. Because the evidence was sufficient to support the verdict, we affirm.

The record shows that Willis quarries granite, cuts it into blocks, and sells it. Noggle bought granite blocks from Willis, fashioned them into gravestone monuments, and sold them to monument dealers, who in turn made retail sales to the public. Within approximately 18 months of sale, monuments made from this stone and sold by Noggle became discolored. When Willis refused to reimburse Noggle for the losses he claimed in replacing the monuments, Noggle brought suit.

1. Willis enumerates two errors: the denial of its motion for directed verdict and denial of its motion for a new trial. But Willis attempts to assert multiple errors within these two enumerations in violation of OCGA § 5-6-40. Moreover, the content of each enumeration of error is largely duplicative of the other. “When, as here, an appellant asserts more than one error within a single enumeration, this court in its discretion may elect to review none, or one or more, of the errors asserted within the single enumeration.” (Citations and punctuation omitted.) Toledo v. State, 216 Ga. App. 480, 482 (4) (455 SE2d 595) (1995). This court may elect “to treat the remaining assertions of error therein as abandoned.” (Citation and footnote omitted.) Holt v. Letter, 232 Ga. App. 376, 380 (1) (501 SE2d 879) (1998). We choose to address only Willis’s arguments concerning the Uniform Commercial Code and the general grounds.

2. Willis claims that its agreement with Noggle contained no implied warranty. This contention appears to be supported by two arguments, both erroneous.

(a) Willis first argues that no warranty exists because the buyer inspected the blocks and used his own judgment in selecting his purchases. While such an argument appears relevant to an implied warranty of fitness for a particular purpose, OCGA § 11-2-315, it is inapplicable to a warranty of merchantability. OCGA § 11-2-314 (1) provides that a contract for the sale of goods implies a warranty of merchantability of the goods. Generally, under OCGA § 11-2-316 (2), “exclusions of implied warranties of fitness or merchantability to be effective are required to be by writing and conspicuous.” (Citations and punctuation omitted.) BCS Fin. Corp. v. Sorbo, 213 Ga. App. 259, 261 (3) (444 SE2d 85) (1994). Since the implied warranty of merchantability was not clearly disclaimed, it applies to the sale of goods in this case absent one of the exceptions enumerated in OCGA § 11-2-316 (3). One such exception, set forth in OCGA § 11-2-316 (3) (c), provides that an implied warranty may be modified by usage of trade. Willis contends that trade usage and its course of dealing and performance establish that an implied warranty of merchantability “was not relied upon,” citing Topeka Mach. Exch. v. Stoler Indus., 220 Ga. App. 799 (470 SE2d 250) (1996).

But Topeka holds only that evidence regarding trade usage is admissible. Id. at 799 (1). As Willis tacitly acknowledges by its citations to testimony regarding trade usage, the trial court did not improperly exclude Willis’s evidence of trade usage. The trial court specifically instructed the jury that “[a]n implied warranty can be excluded or modified by course of dealings or course of performance or usage of trade.” The existence of trade usage, course of dealing and course of performance sufficient to create an exception to the rule requiring conspicuous written exclusion of warranties are questions of fact, and as such they are for the jury to determine. See generally Ga. Timberlands v. Southern Airways Co., 125 Ga. App. 404, 406 (2) (b) (188 SE2d 108) (1972). The jury made this determination in favor of Noggle, and we find no error.

(b) Another argument advanced by Willis in support of its contention that no warranty exists is that the defects were latent and therefore not of such a nature as to be readily ascertainable to the eye of either the buyer or seller. Undisclosed latent defects, however, are the very evil that the implied warranty of merchantability was designed to remedy. An implied warranty protects the buyer against latent defects that are not discoverable by the exercise of caution on his part. Moore v. Berry, 217 Ga. App. 697 (458 SE2d 879) (1995). While an implied warranty will not avail against patent defects or latent defects that are disclosed or are discoverable by the exercise of caution on the part of the purchaser, Keaton v. A.B.C. Drug Co., 266 Ga. 385, 386-387 (1) (c) (467 SE2d 558) (1996), Willis does not dispute that the granite had no patent or obvious defect that would have been readily apparent to Noggle. Noggle presented evidence that the granite contained a latent defect that was not discoverable until after the granite blocks were cut open, polished, and used. Sufficient evidence was presented to raise a jury question as to a latent defect that was covered under an implied warranty of merchantability.

3. Willis also contends that the granite blocks are not “goods” as that term is intended under the UCC, asserting that goods must be “manufactured” in order to fall within the scope of the UCC and the implied warranty of merchantability in OCGA § 11-2-314. This contention, while raising an issue of first impression in Georgia, is wholly without merit.

Whether a product is manufactured is not the touchstone of analysis under the UCC. The test is whether the goods are “movable at the time of identification to the contract.” OCGA § 11-2-105 (1). See also PCS Joint Venture, Ltd. v. Davis, 219 Ga. App. 519, 520 (1) (465 SE2d 713) (1995). The term “goods” includes many nonmanufactured items. See Zepp v. Mayor &c. of Athens, 180 Ga. App. 72 (348 SE2d 673) (1986) (sale of water is a sale of goods under UCC). Indeed, OCGA § 11-2-107, relating to goods severed from real estate, specifically includes within its purview the term “mineral,” which is clearly broad enough to encompass the granite blocks at issue in this case. Other jurisdictions have reached similar conclusions. See, e.g., Luedtke Engineering Co. v. Indiana Limestone Co., 592 FSupp. 75, 79 (S.D. Ind. 1983) (limestone blocks); Blue Rock Indus. v. Raymond Intl., 325 A2d 66 (Me. 1974) (sand).

The Georgia cases cited by Willis are inapposite. Presto v. Sandoz Pharmaceuticals Corp., 226 Ga. App. 547 (487 SE2d 70) (1997), deals with the “learned intermediary” doctrine in an action against the manufacturer and distributor of a prescription drug. Contrary to Willis’s contention, it does not hold that manufacturing is required before a warranty attaches, or that the drug was not a manufactured product. It simply states that the implied warranty of merchantability was inapplicable because the defendant did not prescribe or manufacture the drug. Id. at 551. In Presto v. Charter Peachford &c., 229 Ga. App. 576 (494 SE2d 377) (1997), this Court likewise held that a hospital was not liable under the implied warranty of merchantability for alleged defects in a drug because it neither manufactured nor prescribed it. Id. at 577.

Because the granite blocks sold in this case were movable at the time of identification to the contract, they are “goods” as that term is intended under OCGA § 11-2-105 (1). We therefore find that the agreement to sell the granite is governed by Article 2 of the Uniform Commercial Code, and an implied warranty of merchantability applies.

4. We next consider Willis’s enumeration of the general grounds. As correctly noted by Willis, “ ‘[t]he standard of appellate review of a trial court’s denial of a directed verdict motion is the “any evidence” standard. [Cits.]’ ” Brackett v. Cartwright, 231 Ga. App. 536, 538 (2) (499 SE2d 905) (1998). The standard for the denial of a motion for a new trial is virtually the same, as an “appellate court will not disturb the trial court’s refusal to grant a new trial if there is any evidence at all to support the verdict, however slight, and regardless of what may be the character of the witnesses.” (Punctuation omitted.) Sykes v. Sin, 229 Ga. App. 155, 159 (4) (493 SE2d 571) (1997).

Decided November 24, 1998

Reconsideration denied December 14, 1998.

Smith & Hodges, Truett Smith, for appellant.

Cynthia G. Weaver, for appellee.

“A motion for directed verdict should be granted only when there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a particular verdict. All evidence must be construed most favorably to the non-movant. Before the trial court can direct a verdict for the movant, he must find from the evidence that there is no evidence of any kind supporting the nonmovant’s position.” (Citations and punctuation omitted.) Quality Control Elec. v. Electronic Security Svcs. Co., 225 Ga. App. 671-672 (484 SE2d 696) (1997).

Examined in the light most favorable to the verdict and judgment, the record shows that Noggle positively identified Willis’s quarry as the source of granite that became discolored after being made into monuments. Other monument makers also identified Willis as the source of granite that became discolored after sale. Moreover, Noggle testified that Willis’s stones were the only ones he was using at the time the monuments in question were made. Noggle presented evidence of the sums expended in replacing monuments and the anticipated costs of replacing other monuments made from the same stone, in the amount of approximately $63,000. Evidence was also presented of approximately $469,000 in lost sales because of concerns about the discolored granite.

“ ‘On appeal, we construe all evidence most strongly in support of the verdict, for that is what we must presume the jury did; and if there is evidence to sustain the verdict, we cannot disturb it. Since the verdict was within the range of damages established by the evidence, there was no error.’ ” Evans v. Willis, 212 Ga. App. 335, 339 (5) (441 SE2d 770) (1994). We are satisfied that the judgment and verdict are amply supported by competent evidence of record.

Judgment affirmed.

Johnson, P. J., and Senior Appellate Judge Harold R. Banke concur.

       The jury found in favor of Willis and Richard Lee Willis on Noggle’s remaining claims, and the trial court directed a verdict in favor of Willis on its counterclaim.

       The jury returned a verdict that specifically stated it found no warranty of fitness for a particular purpose, and as a result OCGA § 11-2-315 is not an issue in this appeal.

       In. any event, this doctrine was applied in Presto to the implied warranty of fitness for a particular purpose, not to the implied warranty of merchantability. Id. at 551.


author: Pope, Presiding Judge.

text:
    A98A1530.
    CONNELL v. WOODWARD.
    (509 SE2d 647)
   Pope, Presiding Judge.

We granted John Connell’s application to review the superior court’s denial of his motion to set aside its judgment on a petition to domesticate and modify a Florida child support order. Because the superior court was without authority to modify the Florida child support order under the federal Full Faith & Credit for Child Support Orders Act (“FFCCSOA”), we reverse its subsequent denial of the motion to set aside.

The record established that Kelly Woodward and Connell were divorced by a 1992 final judgment issued in Florida. Later Woodward brought an action in Florida under URESA to establish paternity and for child support. The Florida court entered a final order on paternity and support on June 16, 1993.

In 1995, Woodward, who had moved with the child to Gwinnett County, filed a “Petition for Recognition and Enforcement of Foreign Judgment, Petition for Modification of Child Support and Motion for Contempt” in the Gwinnett County Superior Court. Her action sought to domesticate and modify the child support ordered by the Florida court and also sought to hold Connell in contempt for his failure to comply with the support provisions of the Florida court’s order.

There is no dispute that Connell has continually maintained his residence in Florida for the past 25 years. Nevertheless, Connell was served by process with the petition while he was visiting the child in Georgia, but did not file an answer and did not appear when the case was called for trial. In November 1995, after hearing evidence from Woodward regarding the issues, the Gwinnett County court domesticated the final divorce decree, increased the amount of child support Connell was to pay, found Connell in contempt of the final order and ordered him to pay $750, and awarded Woodward attorney fees.

Connell then filed a motion to set aside the judgment, claiming the Gwinnett court did not have jurisdiction to modify the Florida child support order. Citing Hutto v. Plagens, 254 Ga. 512 (330 SE2d 341) (1985), the court rejected Connell’s arguments and denied his motion to set aside. From this determination, Connell appeals.

1. In his first enumeration of error, Connell argues that the court erred in failing to grant his motion to set aside the judgment because under the FFCCSOA, Florida has continuing, exclusive jurisdiction. We agree.

The FFCCSOA, 28 USC § 1738B, which was enacted in 1994, requires the appropriate authorities of each state to enforce the terms of a child support order of another state when made in accordance with the act’s jurisdictional and due process standards. In subsection (e) the statute provides that in the absence of the parties’ written consent, a court of one state “may make a modification of a child support order with respect to a child that is made by a court of another State if — (1) the court has jurisdiction to make such a child support order; and (2) (A) the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child’s State or the residence of any contestant. . . ,” On July 1, 1997, OCGA § 19-6-26, which adopts the provisions of the FFCCSOA, became effective in Georgia.

Although the precise question raised in this case does not appear to have been addressed by Georgia courts, our Supreme Court interpreted the provisions of the FFCCSOA in Early v. Early, 269 Ga. 415 (499 SE2d 329) (1998). In Early the couple had been divorced in Georgia, a Georgia court modified the original decree, and then Mrs. Early and the couple’s child had moved to California. Robert Early’s petition alleged that although he had submitted himself to the jurisdiction of the California court, the California court had declined to exercise jurisdiction because of the provisions of the FFCCSOA. Robert Early thus “moved the Georgia court to enter an order declining to exercise jurisdiction over the modification of support issue so that the California court could assume jurisdiction thereof.” Early v. Early, 269 Ga. at 416. In response to this request, the Georgia court entered an order declining to exercise jurisdiction over Robert Early’s petition for modification of child support. Our Supreme Court reversed the trial court’s order, determining that the FFCCSOA does not grant a court of the state that issued a child support order the discretion to decline to exercise jurisdiction over a child support modification action.

In so holding, our Supreme Court stated: “[u]nder subsection (d) of the FFCCSOA, a court of a state that has made a child support order consistent with that section, ‘has continuing, exclusive jurisdiction over the order if the State is the child’s State or the residence of any individual contestant’ unless the court of another state was authorized pursuant to subsections (e), (f) or (i) of the FFCCSOA to make a modification of the order. Id. at (a), (d).” (Emphasis supplied.) Early v. Early, 269 Ga. at 416. The Early court decided that, in the absence of the parties’ consent, because Georgia was the only state to have issued a valid child support order and Robert Early had remained a resident of Georgia, the Georgia court had retained “exclusive, continuing jurisdiction.” Id. at 416. The Early court stated: “we find the statutory language is plain and unambiguous in its requirement that the court of the state that last made a child support order consistent with the FFCCSOA has continuing, exclusive jurisdiction over the order where, as here, one of the parties to the order continues to reside in the state, [28 USC § 1738B (d)] unless each individual contestant has filed written consent with the state of continuing, exclusive jurisdiction for a court of another state to modify the order and assume continuing, exclusive jurisdiction over the order, id. at (e) (2) (B), or one of the other provisions in subsection (e), (f), or (i) applies.” Early v. Early, 269 Ga. at 416-417. The court concluded that its interpretation of the FFCCSOA comported with the legislation’s purpose of drawing a “bright line rule which clarifies that a court of the state with continuing, exclusive jurisdiction over a child support order will in every instance maintain that continuing, exclusive jurisdiction until one of the provisions in subsections (e), (f), or (i) is applicable. See P. L. 103-383 §2 (c), 108 Stat. 4063.” Early v. Early, 269 Ga. at 417.

In the instant case, the Florida court issued the original custody decree and subsequently issued a modification in conformance with 28 USC § 1738B (c). Connell, one of the “individual contestants” continues to live in Florida, he did not consent to the Georgia court’s jurisdiction, and no exceptions to 28 USC § 1738B (d) apply. Thus, Florida exercised “continuing, exclusive” jurisdiction and the Gwinnett County court erred in entering the order domesticating the final divorce decree and increasing the amount of child support Connell was to pay. Accordingly, the Gwinnett superior court should have granted Connell’s motion to set aside its previous order. See generally OCGA § 9-11-60 (d).

Woodward argues that the FFCCSOA is inapplicable because the statute was not enacted until after the underlying Florida child support order was issued. This argument is also without merit. Woodward’s request for modification of support in Georgia was filed in July 1995, after the effective date of the FFCCSOA. This date, not the date of the underlying order, is dispositive. See generally Early v. Early, 269 Ga. 415 (FFCCSOA applied when underlying divorce and custody decree issued in 1987, modified in 1990, and petition at issue in the case filed in 1997).

2. Connell argues that the superior court erred in holding that service of a summons and complaint for domestication and modification of a foreign child support order within this State on an out-of-state resident is sufficient to confer jurisdiction upon a Georgia court to modify a foreign child support order. For the reasons set forth above, we agree. The case upon which the court relied, Hutto v. Plagens, 254 Ga. 512, predates the FFCCSOA and does not apply to the instant facts.

Decided November 17, 1998

Reconsideration denied December 14, 1998

Bocher & Richardson, Melody Z. Richardson, for appellant.

Monzer J. Mansour, for appellee.

Judgment reversed.

Beasley and Ruffin, JJ, concur.

       Although the statute has been amended, the amendment was effective on August 22, 1996, and the amendment did not apply to the court’s November 1995 hearing. Furthermore, the relevant provisions of the statute are largely unchanged.

       OCGA § 19-6-26 (d) outlines the requirements for a court of this state to exercise jurisdiction for purposes of entering a modification of a foreign child support order.

       Because the petition in Early was filed in 1997, the court applied the amended version of the FFCCSOA.

       Our conclusion that Florida maintained “continuing, exclusive” jurisdiction comports with decisions from other states interpreting the FFCCSOA. See, e.g., Kramer v. Kramer, 698 S2d 894 (Fla. App. 1997); Kelly v. Otte, 474 SE2d 131, 134 (N.C. App. 1996); Harbour v. Harbour, 677 S2d 700 (La. App. 1996); Isabel M. v. Thomas M., 624 NYS2d 356 (1995).


text:
    A98A1702, A98A1703.
    FORD v. STATE OF GEORGIA (two cases).
    (509 SE2d 734)
   Pope, Presiding Judge.

Police officers arrested Melvin Ford for alleged, possession of cocaine and marijuana. In addition to the suspected drugs found in Ford’s possession, the police found him in possession of $6,598, a gold watch, a gold chain, a gold ring and a gold earring. The state filed a complaint to forfeit the money and another complaint to forfeit the jewelry. Ford filed answers to the complaints 43 days after they were served upon him. Because the answers were not filed within 30 days after service as required by the forfeiture statute, the state moved the court to strike the answers and enter judgment on both complaints. Ford claimed that the cases were simply in default and should be opened as a matter of right under the default judgment statute because the answers, though late, were filed within 15 days of the default. The trial court rejected Ford’s claim and granted the state’s motion, entering judgment for the state on both forfeiture complaints. Ford appeals.

Ford argues the court erroneously ruled that OCGA § 9-11-55 (a) does not apply to the forfeiture actions brought against his money and jewelry pursuant to OCGA § 16-13-49. This argument has been rejected by this Court. “The superior court did not err in determining that the provisions of OCGA § 9-11-55, relating to default judgments, are not applicable to the special statutory procedure created by OCGA § 16-13-49 and at issue in the case sub judice. [Cits.]” Turner v. State of Ga., 213 Ga. App. 309, 310 (2) (444 SE2d 372) (1994). See also Hubbard v. State of Ga., 201 Ga. App. 213, 215-216 (3) (411 SE2d 44) (1991); State of Ga. v. Britt Caribe Ltd., 154 Ga. App. 476 (268 SE2d 702) (1980).

Moreover, contrary to Ford’s claims, the opinion in Rojas v. State of Ga., 269 Ga. 121 (498 SE2d 735) (1998), does not change this Court’s holdings that the default judgment statute of the Civil Practice Act does not apply to the special statutory forfeiture procedures created by OCGA § 16-13-49. The opinion in Rojas does not address the applicability of default judgments under OCGA § 9-11-55 in OCGA § 16-13-49 forfeiture proceedings, but instead involves the relation back provision of OCGA § 9-11-15 (c) in such proceedings. The Supreme Court decided that in a forfeiture action an amended answer can relate back to a timely-filed initial answer. Rojas, 269 Ga. at 123-124 (2). Because the decision makes no mention of OCGA § 9-11-55, and because there is no timely-filed answer in the instant case, Rojas has no bearing on the instant case.

Decided November 24, 1998

Reconsideration denied December 14, 1998

J. Alfred Johnson, for appellant.

Benjamin F. Smith, Jr., District Attorney, Irvan A. Pearlberg, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Accordingly, the trial court did not err in finding that OCGA § 9-11-55 does not apply to the forfeiture complaints against the money and jewelry found in Ford’s possession, and did not err in entering judgment in favor of the state.

Judgments affirmed.

Beasley and Ruffin, JJ., concur.

       OCGA § 16-13-49 (o) (3).

       OCGA § 9-11-55.


text:
    A98A2124.
    STEPHENS v. THE STATE.
    (510 SE2d 575)
   Pope, Presiding Judge.

Robert Greg Stephens pled guilty to a violation of the Georgia Controlled Substances Act. In his sole enumeration of error, he contends that the trial court erred in accepting his guilty plea without a knowing and voluntary waiver of his constitutional rights. We reject Stephens’ arguments and affirm.

The record establishes that Stephens was charged by accusation with knowingly possessing more than 200 grams of a mixture containing methamphetamine. On February 2, 1998, the case came for trial before the superior court and the court recited the charge to Stephens. The court then recounted that Stephens had previously entered a plea of guilty, which the court subsequently had allowed him to withdraw.

The court took a break, during which Stephens apparently decided to plead guilty. After the break, the court recited the charges from the accusation. The State then presented the facts it relied upon to prosecute Stephens, the recommended sentence and factors which led to that recommendation, and stated that Stephens had agreed to plead guilty.

The court asked Stephens whether he had read Exhibit A, which is the “Statement of Defendant Desiring to Enter Negotiated Plea”; whether the statement was true; and whether he had freely and voluntarily signed it. That statement, which is signed by Stephens and his attorney, certified that Stephens understood the charge against him; that he had discussed the charge with his attorney; that he understood the specific rights he was waiving by entering his plea (the form specified the various rights Stephens was waiving); that he understood the maximum and minimum possible sentences for the offense; that he understood the sentence he would receive; and that he was entering the plea freely, voluntarily, with a full understanding of the charges, and without coercion.

The court then ascertained that defendant’s attorney had signed the statement entitled: “Statement of Defendant’s Attorney When Plea is Tendered.” That statement certified that defendant’s attorney had explained to Stephens all of his constitutional and statutory rights; that he had gone over with Stephens the “Statement of Defendant Desiring to Enter Negotiated Plea”; that he had advised his client of the available alternatives to entering a plea and of considerations deemed important to him in reaching a decision; and that he knew of no reason his client should not enter a plea.

The court then concluded that Stephens understood the charges against him; that he had freely and voluntarily tendered a plea of guilty; and that he had freely and voluntarily waived his constitutional rights.

Here, Stephens argues that the proceedings surrounding the entry of his plea were unduly confusing and that his plea was not entered into voluntarily and knowingly. This argument lacks merit.

“Before accepting a plea of guilty, a trial court must determine that the plea is voluntarily made and that the defendant ‘intelligently and understanding^’ waives his constitutional rights, which requires a showing on the record that the defendant has freely and voluntarily entered the plea with an understanding of the nature of the charges against him and the consequences of his plea. When a defendant enters a plea of guilty and subsequently challenges the validity of the guilty plea, the State may meet its burden of demonstrating the plea was intelligently and voluntarily entered by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) filling a silent or incomplete record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” (Citations and punctuation omitted.) Bacon v. State, 201 Ga. App. 641 (411 SE2d 785) (1991). See also Barber v. State, 231 Ga. App. 176 (2) (498 SE2d 758) (1998).

Decided December 14, 1998.

Saia, Richardson & Meinken, Joseph J. Saia, for appellant.

Robert G. Stephens, pro se.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

While the trial court did not mention during the plea hearing all of the rights Stephens was waiving, this Court has previously determined that the trial court is authorized to accept the testimony given by Stephens in his “Statement of Defendant Desiring to Enter Negotiated Plea.” See Romano v. State, 220 Ga. App. 322, 323 (3) (469 SE2d 726) (1996). Although the better practice is to discuss every essential right a defendant is waiving on the record with that defendant, see Moore v. State, 225 Ga. App. 860 (1) (485 SE2d 552) (1997), the preprinted form which Stephens signed adequately establishes that he understood the rights he was waiving. Additionally, the preprinted form Stephens’ counsel signed showed that Stephens’ counsel reviewed both the preprinted form and various ramifications of the plea with Stephens. See Evans v. State, 216 Ga. App. 21, 24 (3) (453 SE2d 100) (1995). “The question is not whether the trial court followed the letter of USCR 33.8 but whether the record, as a whole, affirmatively shows [Stephens’] plea was knowing and voluntary.” (Citation and punctuation omitted.) Moore v. State, 225 Ga. App. at 860-861. See generally Bullard v. State, 198 Ga. App. 603 (402 SE2d 539) (1991) (form which was filled in and signed by appellant which listed the rights he was waiving and consequences of his plea, which also was signed by judge, was sufficient to establish that appellant’s plea was knowing); compare Pirkle v. State, 221 Ga. App. 657 (472 SE2d 478) (1996). We conclude that the record as a whole affirmatively shows that Stephens’ plea was knowing and voluntary and affirm. See generally Manues v. State, 232 Ga. App. 454 (501 SE2d 826) (1998).

Judgment affirmed.

Beasley and Ruffin, JJ., concur.

       We first note that the appeal is properly before the court as a timely-filed direct appeal because the issues Stephens seeks to raise on appeal may be resolved by the record. See Grantham, v. State, 267 Ga. 635 (481 SE2d 219) (1997); Caine v. State, 266 Ga. 421 (467 SE2d 570) (1996).


author: Ruffin, Judge.

text:
    A98A0914.
    McNEAL CONSTRUCTION COMPANY et al. v. WILSON.
    (509 SE2d 742)
   Ruffin, Judge.

Robbie Wilson, as executrix of the estate of Thelma McNeal, sued McNeal Construction Company and Roy F. McNeal (McNeal) to recover on certain promissory notes executed by McNeal Construction Company and guaranteed by McNeal. The trial court granted plaintiff’s motion for summary judgment, and the defendants appeal, contending that the action is barred by the statute of limitation. Because this contention is without merit, we affirm.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

The parties have stipulated the relevant facts. On December 1, 1986, McNeal Construction Company executed a promissory note in favor of Thelma McNeal in the principal amount of $100,000, bearing interest at the rate of 12 percent per year. On December 1, 1989, McNeal Construction Company executed a second promissory note in favor of Thelma McNeal, also in the principal amount of $100,000 and bearing interest at the rate of 12 percent per year. Roy McNeal personally guaranteed payment of both notes. Each note provided that it would not be due and payable unless a written demand for payment was made upon McNeal Construction Company. McNeal Construction Company made regular payments on the notes, apparently of interest only, until April 1991, but made no payments thereafter. Plaintiff did not make a written demand for payment until November 17, 1995.

Plaintiff filed her complaint on July 31, 1996, and both sides filed motions for summary judgment. On November 10, 1997, the trial court granted plaintiff’s motion for summary judgment and denied defendants’ motion. In their sole assertion on appeal, defendants contend that the action is barred by the statute of limitation.

The statute of limitation on an instrument not under seal is six years after the instrument becomes due and payable. OCGA § 9-3-24. When the notes at issue were executed in 1986 and 1989, OCGA § 11-3-122 (1) (b) provided that a cause of action upon a demand note accrued “upon its date or, if no date is stated, on the date of issue.” If this statute were applicable to the present case, the statute of limitation on both notes would have expired before suit was filed.

However, “[effective July 1, 1996, the UCC’s Commercial Paper provisions were amended. See Ga. L. 1996, p. 1306, § 3. These amendments significantly extended the limitation period for actions on demand notes. OCGA § 11-3-118 (b) now provides in pertinent part that ‘if demand for payment is made to the maker of a note payable on demand, an action to enforce the obligation of a party to pay the note must be commenced within six years after the demand.’ ” Johnson v. Hodge, 223 Ga. App. 227, 228 (1) (477 SE2d 385) (1996). If this provision is applicable, then this action would not be time-barred, since it was filed within six years of the November 1995 demand.

Defendants contend that the amended statute of limitation should not apply in this case. They rely on Johnson’s holding that, because OCGA § 11-3-118 contained no language requiring retroactive application, the statute was not intended to be given such application. Id. However, it is not necessary to resolve this issue here, as this case does not involve retroactive application of the statute. Unlike Johnson, where the lawsuit was filed five years before the effective date of the amendment, this action was filed after the effective date of the amendment. In Hunter v. Johnson, 259 Ga. 21, 22 (376 SE2d 371) (1989), after noting that statutes of limitation are procedural and thus subject to retroactive application, the Supreme Court stated that “there is no question of retroactivity here, as the amended . . . version of OCGA § 9-3-71 was in effect at the time that the action was filed. There being no attack upon the validity of the amended statute, nothing in it compels the conclusion that the amended version should not apply to actions filed after its effective date.” Id. Similarly, because this case was filed after the effective date of the amendment, no question of retroactivity is presented.

The fact that the former statute of limitation had expired before the effective date of the amendment does not change this result because a party has no vested interest in a statute of limitation. See Canton Textile Mills v. Lathem, 253 Ga. 102, 104-105 (1) (317 SE2d 189) (1984). In Canton Textile Mills, the Supreme Court held that “the legislature may revive a workers’ compensation claim which would have been barred by a previous limitation period by enacting a new. statute of limitation, without violating our constitutional prohibition against retroactive laws.” Id. at 105 (1). In so holding, the Court rejected the principle that “a statute of limitation, once it has run, becomes vested and is as valuable to the one party as the right to demand or prosecute the suit is to the other.” Id. at 104 (1). The Court adopted the holding of the U. S. Supreme Court in Campbell v. Holt, 115 U. S. 620 (6 SC 209, 29 LE 483) (1885), that “in actions on contract, or in any class of actions in which a party does not become [vested] with title to property by the statute of limitations, the legislature may by repealing the statute, even after the right of action is barred, restore the remedy and divest the other party of the statutory bar.” Canton Textile Mills, supra at 104-105 (1).

Decided November 25, 1998

Reconsideration denied December 15, 1998

H. David Moore, Lisa R. Coody, for appellants.

Westmoreland, Patterson & Moseley, Kirby R. Moore, Bradley G. Pyles, for appellee.

The same reasoning was expressed in Hunter, where the Supreme Court held that “ ‘ “[n]o person has a vested right in any course of procedure, nor in the power of delaying justice, nor of deriving benefit from technical and formal matters of pleading. He has only the right of prosecution or defence in the manner prescribed, for the time being, by or for the court in which he sues; and if a statute alters that mode of procedure, he has no other right than to proceed according to the altered mode. The remedy does not alter the contract or the tort; it takes away no vested right; for the defaulter can have no vested right in a state of the law which left the injured party without, or with only a defective, remedy. (Cits.)” ’ [Cit.]” Hunter, supra at 22, n. 2.

For the above reasons, the amended version of OCGA § 11-3-118 (b) applies in this case, and the action was therefore timely filed. Because the statute of limitation is the only issue raised by appellant, the ruling of the trial court must be affirmed.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.


text:
    A98A0928.
    PACRIM ASSOCIATES et al. v. TURNER HOME ENTERTAINMENT, INC.
    (510 SE2d 52)
   Ruffin, Judge.

Pacrim Associates and one of its shareholders and employees, Pamela Kent, sued Turner Home Entertainment (“Turner”) under various contract theories and for fraud. In its complaint, Pacrim alleges that it entered into an agreement with Turner under which Pacrim was appointed as Turner’s exclusive licensing and merchandising agent in Thailand for a one-year period. Plaintiffs allege that Turner’s premature termination of the contract gave rise to causes of action for breach of contract, promissory estoppel, and fraud, inter alia. The trial court granted summary judgment in favor of Turner on all issues. Plaintiffs appeal, asserting that the trial court erred (1) in ruling as a matter of law that the parties did not form a binding contract; (2) in granting summary judgment on their promissory estoppel claim; and (3) in granting summary judgment on their fraud claim. For reasons which follow, we find that the trial court correctly granted summary judgment to Turner on plaintiffs’ fraud claim, but erred in granting summary judgment to Turner on their contract and promissory estoppel claims.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” (Citation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review is de novo. Walker v. Virtual Packaging, LLC, 229 Ga. App. 124 (493 SE2d 551) (1997).

Viewed in a light most favorable to plaintiffs, the nonmovants, the record reveals that Pacrim is a limited liability company registered in Thailand. Beginning in 1992, Pacrim acted as an agent for Turner Publishing, a Turner subsidiary. The agency relationship was established following discussions between Pacrim and Turner Publishing and was finalized in a letter of agreement between the parties. As an agent, Pacrim was to seek opportunities in certain Asian countries to sell and publish Turner Publishing titles.

During its agency with Turner Publishing, Pacrim expressed interest in licensing other Turner properties in Asia. Accordingly, in early 1994, James Porges, Turner Publishing’s Manager of International Sales, introduced Kent to Turner employees involved in merchandising and licensing other Turner products. Two such individuals were Turner’s President, Phil Kent (no relation to Pamela Kent), and Turner’s Vice-President of International Licensing, Helen Isaac-son. During meetings with Phil Kent and Isaacson, Pamela Kent proposed that Pacrim serve as the licensing and merchandising agent for Turner’s Hanna-Barbera cartoon characters in Thailand. On May 22, 1994, Porges sent a letter to Pacrim in which he stated that “I spoke to Helen [Isaacson] and Phil Kent early last week regarding merchandising in Asia and they have agreed to let Pacrim represent Turner licensing and merchandising on an exclusive basis in Thailand for a one year trial period. You will have to work out approval systems, commissions, and operating procedures with Helen.” Phil Kent also spoke with Pamela Kent and informed her that Turner was “willing to try this for a year, [but Pacrim has] to work out the details with Helen [Isaacson].” According to Pamela Kent, Phil Kent “agreed that Pacrim would be retained on the standard Turner agency terms for merchandising and licensing, which included a thirty percent (30%) commission to Pacrim upon any royalties payable to Turner as a result of merchandising and licensing agreements.”

As instructed by Porges and Phil Kent, Pamela Kent contacted Isaacson to arrange the details of Pacrim’s agency agreement with Turner. According to Kent, during a July 4, 1994 telephone conversation, Isaacson “confirmed that Pacrim had indeed been retained by [Turner] as merchandising and licensing agent in Thailand for a one-year period on an exclusive basis through July 1,1995.” Isaacson further informed Kent that she would send Pacrim all the required materials shortly. On July 13, 1994, Isaacson sent Kent a memo detailing Turner’s licensing guidelines, royalty rates, licensing and merchandising approval process and its policies concerning copyrights and trademarks and stating, “We look forward to working with you.”

Although Turner failed to respond to Kent’s subsequent requests for further information and guidance, and the parties never executed a written agreement, on August 23, 1994, Turner sent a memo to its current Hanna-Barbera licensees, declaring, “We are pleased to announce that Pacrim Associates is Turner’s newly appointed agent in Thailand for Hanna-Barbera Properties. They will be contacting you shortly to update you on the Hanna-Barbera licensing program for the region and to provide you with information regarding new compliance procedures. Of course, feel free to contact Pamela Kent ... at any time. We are pleased to be working with Pacrim and are confident that the Thailand Hanna-Barbera business will enjoy an unprecedented level of support.” Based on this memo, the prior written correspondence between the parties, and their verbal agreement for a one-year agency, Pacrim entered into extensive negotiations with several Thai companies to obtain licensing and merchandising agreements on behalf of Turner.

The record further shows that on September 21, 1996, Isaacson directed Turner employees to prepare an agent’s representative agreement for Pacrim. Specifically, Isaacson advised these employees that “PacRim [sic] will be our agent for all Hanna Barbera Properties.” However, Turner never presented the written agreement to Pacrim for execution. According to Isaacson, she did not ask Pacrim to execute a contract because she “had [certain] concerns.” In a January 16, 1995 letter to Pacrim, Turner notified the company that it was terminating the parties’ relationship. In the letter, Turner stated that because the parties’ “discussions have failed to result in any agreement between the parties as to the material terms of the relationship^] ... we have decided to terminate the at-will relationship between [Pacrim] and [Turner’s] merchandising division.” The lawsuit which is the subject of this appeal followed.

1. The trial court granted Turner summary judgment on plaintiffs’ breach of contract claim on the ground that the parties’ agreement was “too vague and indefinite to constitute an enforceable contract.” Plaintiffs assert that there was sufficient specificity, and we agree.

“The test of an enforceable contract is whether it is expressed in language sufficiently plain and explicit to convey what the parties agreed upon.” (Citations and punctuation omitted.) McLean v. Continental Wingate Co., 212 Ga. App. 356, 358 (1) (442 SE2d 276) (1994). Moreover, “[i]t is unnecessary that a contract state definitively and specifically all facts in detail to which the parties may be agreeing, but as to such matters, it will be sufficiently definite and certain if it contains matters which will enable the courts, under proper rules of construction, to ascertain the terms and conditions on which the parties intended to bind themselves.” (Citations and punctuation omitted.) Toncee, Inc. v. Thomas, 219 Ga. App. 539, 542 (2) (466 SE2d 27) (1995). We must look to the actions of the parties to determine whether they intended to be bound by the terms of their agreement. Id. at 541.

The verbal agreement in this case was sufficient to establish a binding agreement between Turner and Pacrim. Specifically, the parties verbally agreed that Pacrim would be Turner’s exclusive agent for licensing and merchandising of Hanna-Barbera properties in Thailand for a one-year period ending July 1, 1995, and that the agreement would be subject to Turner’s standard agency terms for merchandising and licensing, which included a thirty percent commission to Pacrim upon any royalties. We are bound to view the evidence before us in a light most favorable to plaintiffs, the nonmoving parties, Lau’s Corp., supra, and in so doing, we find that the evidence demonstrates that plaintiffs never rejected these terms and that the parties did not leave any material terms to future negotiations. Instead, as instructed by Porges and Phil Kent, Pamela Kent contacted Isaacson to clarify the remaining details of Pacrim’s agency agreement with Turner, and shortly thereafter, Isaacson notified Pacrim of Turner’s standard licensing guidelines, royalty rates, licensing and merchandising approval process and copyrights and trademark policies. The evidence further reflects that although Pacrim sought additional information and clarification of the terms of the agreement, it was not negotiating or contesting them. See Holland v. Holland Heating, 208 Ga. App. 794, 795 (1) (432 SE2d 238) (1993).

Contrary to the trial court’s conclusion that the “[s]ubject matter was not clearly addressed and the scope of the work was not clearly defined,” there is evidence that the parties intended that Pacrim would be the exclusive licensing agent for Turner’s Hanna-Barbera line for a one-year trial period, pursuant to Turner’s standard licensing guidelines. In Touche Ross & Co. v. DASD Corp., 162 Ga. App. 438, 440 (2) (292 SE2d 84) (1982), we held that “a contract is not void because its performance is, as to particular details, left subject to the subsequent agreement of the parties.” See also Holland, supra at 795 (1). In Touche Ross, the contract’s broad language as to the scope of work to be accomplished by the defendant was not found too indefinite or vague, because the parties “entered into performance of the contract without raising any question as to its legal significance, and continued for a period of approximately five months.” Id. In this case, Pacrim alleges that it abided by the verbal agreement during the six-month period between the July 4, 1994 phone conversation with Isaacson and the January 16,1995 letter terminating its services. On its part, Turner advised Pacrim via the phone call with Isaacson on July 4, 1994, that it was to begin work as a licensing agent and touted Pacrim as its Thai licensing agent to its other Hanna-Barbera licensees.

We also disagree with the trial court’s decision that “[w]hat Pacrim had was an agreement from [Turner] to agree in the future.” Rather, Turner’s intent to be bound by the one-year exclusive agency agreement was evidenced by Turner’s memo to its existing HannaBarbera licensees, advising them that Pacrim was Turner’s newly appointed agent in Thailand for Hanna-Barbera properties. Moreover, despite the evidence that the parties anticipated that a written agreement would be executed in the future, there is no evidence that either party contemplated that the oral agreement would become effective only if it was reduced to writing and signed by the parties. Instead, the oral agreement contemplated that the agency relationship would extend for a one-year trial basis only and that it was subject to Turner’s standard agency terms for merchandising and licensing. Under these circumstances, a jury would be authorized to find “that a binding . . . agreement was in effect, and the failure to sign [a] written instrument did not affect the validity of the oral agreement.” (Citation and punctuation omitted.) Gen. Hosp. of Humana v. Jenkins, 188 Ga. App. 825, 827 (1) (374 SE2d 739) (1988). In Jenkins, “it was undisputed . . . that [the parties] agreed upon a renewal lease . . . and that [they] both considered the matter to be resolved. . . . There was no evidence that either party contemplated that the oral agreement would become effective only if it was reduced to writing and signed . . ., although they both expected the written lease would be executed.” (Punctuation omitted; emphasis in original.) Id.

Finally, although the evidence reveals that Pacrim was unsure whether the agency contract included licensing of property other than Hanna-Barbera products, such uncertainty does not preclude a finding that the parties agreed that Pacrim was the licensing agent for Hanna-Barbera products. Thus, there is sufficient evidence from which a jury could find that there was indeed the formation of a proper verbal contract, and the trial court erred in concluding otherwise. See Toncee, Inc., supra.

2. Plaintiffs also contend that the trial court erred in granting summary judgment to Turner on their promissory estoppel claim. Specifically, plaintiffs allege that Turner promised them, among other things, that Pacrim would be Turner’s exclusive licensing and merchandising agent for a minimum of one year and that Turner knew, or should have known, that plaintiffs would rely on this promise, and that they did so rely to their detriment. Plaintiffs argue that this promise was not conditional, and that even if it was conditional upon future events, those events occurred. Plaintiffs further assert that their promissory estoppel claim is based on Isaacson’s representations as well as Phil Kent’s. We agree with plaintiffs that the trial court should have denied Turner’s motion for summary judgment regarding their promissory estoppel cause of action.

“Under the doctrine of promissory estoppel a promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee . . . and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. OCGA § 13-3-44 (a).” (Citation and punctuation omitted.) W. R. Grace & Co.-Conn. v. Taco Tico Acquisition Corp., 216 Ga. App. 423, 426 (1) (454 SE2d 789) (1995). The trial court ruled that Turner was entitled to summary judgment because the promise of an exclusive agency to Pacrim was conditional upon arranging the details with Isaacson and there was no evidence this condition was ever fulfilled.

From our review of the record, and based upon our duty to view the facts in a light most favorable to plaintiffs, it appears the trial court ignored evidence that Kent contacted Isaacson, as Porges and Phil Kent requested, and in response, Isaacson notified her of Turner’s standard licensing guidelines, royalty rates, licensing and merchandising approval process and copyrights and trademarks policies. In light of such evidence, even if the promise of an exclusive, one-year agency agreement was conditional upon Pacrim’s working out details with Isaacson, a material issue of fact exists concerning whether this condition was fulfilled. Similarly, considering Turner’s subsequent action in notifying existing Hanna-Barbera licensees that Pacrim “is Turner’s newly appointed agent in Thailand for Hanna-Barbera Properties” and would be providing the licensees with updated information regarding the Hanna-Barbera licensing program, and that the licensees should “feel free to contact Pamela Kent ... at any time[,]” we conclude that a material issue of fact exists concerning whether Turner should have reasonably expected to induce action or forbearance on plaintiffs’ part. Plaintiffs did in fact act; thus, the trial court erroneously granted summary judgment to Turner on plaintiffs’ promissory estoppel claim.

3. Lastly, plaintiffs maintain that the trial court improperly granted Turner summary judgment on their fraud claim. In their complaint, plaintiffs allege that in an effort to deceive, Turner represented that Pacrim would be its exclusive licensing and merchandising agent in Thailand for one year when Turner knew that the representation was false. A review of the record reveals no evidence supporting plaintiffs’ allegation.

It is well established under Georgia law that “fraud cannot generally be based on instances of misrepresentations as to future events.” (Punctuation omitted.) Rogers v. deMonteguin, 193 Ga. App. 480, 481 (1) (388 SE2d 10) (1989). An exception to this general rule exists where the promisor knows, at the time of the misrepresentation, that the future event will not take place. Id. at 481-482. Thus, the issue before us is whether there is evidence that at the time the promise was made, Turner had no intention of retaining Pacrim as its exclusive licensing agent in Thailand for a one-year period. Id.

Plaintiffs do not deny that Turner’s alleged fraud was as to a future event; however, they contend that because Turner knew at the time it made the promise that Pacrim would not have a one-year agency, a jury could find fraud. In support of their assertion, plaintiffs only point to evidence showing that subsequent to the parties’ oral agreement, Turner employees, specifically Isaacson, did not intend to comply with the promise. While such evidence might support a claim for breach of contract, it does not show that Turner did not intend to comply with the agreement at the time the promise was made. See Rogers, supra; Gunnin v. Dement, 205 Ga. App. 631, 633 (2) (422 SE2d 893) (1992). Since there was no evidence that Turner had a present intent not to comply with the promise, the trial court did not err in granting Turner summary judgment on plaintiffs’ fraud claim.

Decided November 30, 1998

Reconsideration denied December 15, 1998.

Alembeck, Fine & Callner, Mark E. Bergeson, Zoé I. Martinez, for appellants.

Troutman Sanders, Kaye W. Burwell, John J. Dalton, for appellee.

Accordingly, we find that the trial court properly granted Turner summary judgment on plaintiffs’ fraud claim, but erroneously granted summary judgment against plaintiffs on their contract and promissory estoppel claims.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Beasley, J., concur.

       All references to “Kent” in this opinion refer to Pamela Kent, and Phil Kent is always referred to by his full name.


text:
    A98A1391.
    SULLIVAN v. THE STATE.
    (510 SE2d 136)
   Ruffin, Judge.

A jury found Jacqueline Ayn Sullivan guilty of driving under the influence of alcohol to the extent that it was less safe for her to drive in violation of OCGA § 40-6-391 (a) (1). Sullivan appeals, asserting that the trial court erred in admitting evidence of her breath test results. We review a trial court’s decision on a motion to exclude evidence under the clearly erroneous standard. See Stepic v. State, 226 Ga. App. 734, 736 (2) (487 SE2d 643) (1997); Walton v. State, 217 Ga. App. 11, 12 (2) (456 SE2d 289) (1995). For the following reasons, we affirm.

The record reveals that during the early morning hours of June 4, 1995, a Cherokee County deputy sheriff was traveling behind Sullivan’s automobile when he noticed it weaving in the roadway. According to the deputy, Sullivan’s vehicle drifted out of its lane on several occasions. The deputy testified that he decided to stop Sullivan after her car crossed over the solid double yellow lines in the road. The deputy further stated that he smelled a strong odor of alcohol emanating from the inside of Sullivan’s car. According to the deputy, Sullivan admitted that she had consumed four beers. The deputy noted that after Sullivan exited her car, she was unsteady on her feet, and on one occasion he had to help her regain her balance. Sullivan’s performance on the horizontal gaze nystagmus (“HGN”) test indicated to the deputy that she was intoxicated. After Sullivan failed a field sobriety test, the deputy arrested her for DUI. Sullivan submitted to a breath test, the results of which showed that she had a 0.26 alcohol concentration.

Sullivan was subsequently charged with (1) failure to maintain her lane of travel, (2) violating OCGA § 40-6-391 (a) (1) by driving under the influence to the extent that it was less safe for her to drive, and (3) violating OCGA § 40-6-391 (a) (5) in that her alcohol concentration was 0.10 or more within three hours after driving, a per se DUI violation. Prior to trial on these charges, Sullivan moved to exclude her breath test results. The trial court denied the motion and admitted the evidence during Sullivan’s trial. Sullivan argued to the jury that the breath test results were unreliable because the test had been performed improperly, and because it was implausible that Sullivan’s alcohol concentration could have been as high as 0.26. The jury convicted Sullivan on the failure to maintain lane and less safe driver charges, but acquitted her of the per se DUI charge.

Sullivan moved for a new trial, and the trial court granted the motion. The State then retried Sullivan only as to the failure to maintain lane and less safe driver charges. Prior to retrial, Sullivan moved to exclude her breath test results on two grounds. First, she argued that the State was collaterally estopped from introducing the test results because the jury in the first trial acquitted her on the per se DUI charge. Second, Sullivan argued that, even if the test results had some probative value, that value was outweighed by the prejudicial effect of such evidence. The trial court denied the motion and admitted the test results at trial. Sullivan made a continuing objection to this evidence, which the trial court noted. The jury found Sullivan guilty of both the failure to maintain lane and less safe driver charges.

On appeal, Sullivan contends that because the jury in her first trial acquitted her on the charge of driving with an alcohol concentration of 0.10 or more, it necessarily found that the breath test results were unreliable. Therefore, she argues that the State was collaterally estopped from introducing the breath test results during the second trial. We disagree.

Collateral estoppel provides that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” (Punctuation omitted.) Hunter v. State, 191 Ga. App. 769, 771 (382 SE2d 679) (1989). “[T]he application of collateral estoppel requires an examination of what facts were in issue and necessarily resolved in the defendant’s favor at the first trial.” (Punctuation omitted.) Mims v. State, 191 Ga. App. 628, 631 (3) (382 SE2d 414) (1989).

Sullivan relies primarily on Clay v. State, 193 Ga. App. 377, 378 (2) (387 SE2d 644) (1989), in which the defendant was convicted on a less safe driver charge but acquitted of per se DUI. In reversing the less safe driver conviction, we concluded that, apart from defendant’s blood-alcohol test results, there was no evidence whatsoever showing that defendant was a less safe driver. Id. at 379 (2). We stated that, “[i]n finding [defendant] not guilty on the charge of driving with a blood-alcohol concentration of 0.12 grams or more (OCGA § 40-6-391 (a) (4)), the jury clearly rejected the results of his intoximeter test as being unreliable.” Id. at 378 (2). We also noted that there was no evidentiary basis upon which the jury could have adjusted the test results, which showed an alcohol concentration of .18, in such a manner as to find that defendant’s alcohol concentration was .10 or .11, so as to raise a presumption under OCGA § 40-6-392 (b) (3) that defendant was under the influence of alcohol. Id. at 378-379 (2).

Contrary to Sullivan’s contention on appeal, Clay does not stand for the proposition that test results that are rejected by a jury for any reason are inadmissible in a subsequent trial on a less safe driver charge. Clay merely held that, under the facts of that case, the jury could not reject the test results and still convict the defendant of being a less safe driver, since there was no other evidence that the defendant was impaired to the extent that he was rendered less safe. Id.

It is clear in this case that the jury in the first trial “rejected” the breath test results, in the sense that it concluded the results were insufficient to prove beyond a reasonable doubt that Sullivan had an alcohol concentration of .10 or greater. However, the jury did not necessarily conclude that the breath test was wholly lacking in probative value. The jury could have found that the test did establish that some level of alcohol was present in Sullivan’s system shortly after her arrest, but that it did not establish beyond a reasonable doubt that the level was .10 or greater. In this regard, it is unclear whether the jurors chose to discount the test results because of concerns over how the test was conducted, or simply because they believed that the result of 0.26 was inconsistent with testimony regarding Sullivan’s condition. Although proof that some amount of alcohol is present in a defendant’s system shortly after her arrest is insufficient to convict the defendant of per se DUI, such proof is relevant, if not conclusive, in a prosecution on a less safe driver charge. Unlike in Clay, the test results in this case were not the only evidence supporting a less safe driver charge; therefore, it was not necessary for the jury to “adjust” the test results to a specified amount in order to trigger a presumption that the defendant was under the influence of alcohol.

Decided December 4, 1998

Reconsideration denied December 15, 1998

William C. Head, for appellant.

G. Channing Ruskell, Solicitor, Barry W. Hixson, Assistant Solicitor, for appellee.

Collateral estoppel only precludes relitigation of issues that were “necessarily resolved in the defendant’s favor at the first trial.” (Punctuation omitted.) Mims, supra. Because the jury’s verdict in the prior action did not necessarily include a finding that the breath test results were unreliable for any purpose, and because the fact that some level of alcohol was detected in Sullivan’s system after the arrest was relevant to the less safe driver charge, the State was not precluded by the doctrine of collateral estoppel from introducing evidence of the breath test results.

At trial, Sullivan also argued that, even if the breath test results had some probative value, that value was outweighed by the prejudicial effect of such evidence. However, Sullivan has not raised this issue on appeal, either in her enumerations of error or her brief, but relies solely upon the collateral estoppel theory. These issues are not the same, as collateral estoppel is based not upon the prejudicial effect of evidence but upon the fact that an issue of ultimate fact has already been resolved in a prior case. Because our review is limited to those matters enumerated and argued by an appellant, we do not address whether the test results should have been excluded on the grounds that their probative value was outweighed by their prejudicial effect. Nor do we consider whether the trial court, upon admitting the test results, should have charged the jury as to the permissible uses to which such results could be put, as that issue has not been raised on appeal. See Williams v. State, 178 Ga. App. 581, 587 (5) (344 SE2d 247) (1986) (appellate jurisdiction limited to legal points raised by enumerations of error); Byrd v. State, 216 Ga. App. 510, 513 (5) (455 SE2d 318) (1995) (issues raised in enumerations but not argued in brief deemed abandoned).

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

       At the time of the offense in Clay, an alcohol concentration of .12 was required for a per se DUI conviction, and a concentration of .10 was required to trigger the presumption that the driver was under the influence of alcohol. These levels are now .10 and .08, respectively.


author: Beasley, Judge.

text:
    A98A2169.
    DAY v. THE STATE.
    (510 SE2d 579)
   Beasley, Judge.

Lorenzo Day appeals his convictions of criminal attempt to possess cocaine (OCGA §§ 16-13-30; 16-13-33) and operating a motor vehicle while his license was suspended (OCGA § 40-5-121). He claims the evidence was insufficient to support the verdicts and that the only evidence supporting the conviction for driving with a suspended license was hearsay.

1. “ ‘On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.’ ’n

The evidence showed that Officer Williams of the Columbus Police Department participated in a reverse sting operation whereby officers posed as drug dealers in a high drug area and waited for people to approach to attempt to buy narcotics or illegal drugs. At about 2:00 p.m. with good lighting, Day drove near the officer with a passenger. In response to Williams’ question to tell him what they needed, Day said he needed ten dollars of crack cocaine. Williams handed Day a piece of imitation substance and Day gave him ten dollars and drove away. Officer Williams identified Day in court as the purchaser.

Day’s attack on the State’s evidence is the absence of a supposed videotape and audiotape of the transaction, the lack of fingerprint detection on the alleged ten dollar bill, and the absence of the imitation cocaine. None of these is essential. The testimony of an officer who is a direct witness to the transaction and positively identifies the defendant is sufficient evidence. “[A]fter viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

2. The State concedes, as confirmed by the record, that the only evidence Day was driving without a license was hearsay from one of the officers. All the officer had was the police report of the incident, which indicated that someone ran a computer check that day. This, being hearsay, is inadmissible in that it is not covered by an exception and is not otherwise admissible as necessary and demonstrably trustworthy. OCGA § 24-3-1. In Georgia, “ ‘hearsay testimony is not only inadmissible but wholly without probative value, and its introduction without objection does not give it any weight or force whatever in establishing a fact.’ Higgins v. Trentham, 186 Ga. 264 (1) (197 SE 862) (1938).” We are not at liberty to overrule the established line of authority for this rule, to which the Supreme Court of Georgia adheres. Ga. Const. 1983, Art. VI, Sec. V, Par. III. The conviction of driving with a suspended license is reversed.

Decided December 15, 1998.

Meacham & Earley, Michael S. Phillips, for appellant.

J. Gray Conger, District Attorney, Samuel G. Merritt, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

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

       (Citations omitted.) Right v. State, 221 Ga. App. 574, 575 (1) (472 SE2d 113) (1996).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        White Missionary Baptist Church v. Trustees of First Baptist Church &c., 268 Ga. 668, 669 (1) (492 SE2d 661) (1997). See Paul S. Milich, Georgia Rules and Evidence, § 16.7 (1995).


author: Blackburn, Judge.

text:
    A96A1737.
    ELLIOTT et al. v. McDANIEL.
    (510 SE2d 46)
    Decided November 13, 1998
    Reconsideration dismissed December 16, 1998

      Robert E. Andrews, for appellants.

      Sexton & Sexton, James D. Sexton, Giles D. Sexton, for appellee.
   Blackburn, Judge.

In Elliott v. McDaniel, 224 Ga. App. 848 (5) (483 SE2d 104) (1996), this Court imposed the punitive damages cap of OCGA § 51-12-5.1 (g) on the basis that the jury did not make a separate finding that the Elliotts acted wdth specific intent to cause McDaniel harm in this action for fraud and misrepresentation. In McDaniel v. Elliott, 269 Ga. 262 (497 SE2d 786) (1998), the Supreme Court reversed this Court’s holding in that case, and held that the jury necessarily found specific intent to harm as an essential element of McDaniel’s intentional fraud claim. The Court then, however, provided that consistent with our holding, a separate, specific finding of intent to cause harm and a charge thereon would be required in all future cases, but not this one. Accordingly, to the extent that this decision of the Supreme Court reverses the opinion of this Court, our original judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

Beasley, J., and Senior Appellate Judge Harold R. Banke concur.


author: Beasley, Judge. Blackburn, Judge,

text:
    A96A2167.
    OXLEY v. KILPATRICK et al.
    (510 SE2d 99)
   Beasley, Judge.

In Oxley v. Kilpatrick, 225 Ga. App. 838 (486 SE2d 44) (1997), we reversed the trial court’s grant of motions for summary judgment filed by Dr. Rossi and his two co-defendants. The Supreme Court granted certiorari and reversed our holding that Dr. Rossi was not entitled to summary judgment. Rossi v. Oxley, 269 Ga. 82 (495 SE2d 39) (1998). Accordingly, our judgment in this case is vacated as to Dr. Rossi, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed in part and reversed in part.

Senior Appellate Judge Harold R. Banke concurs. Blackburn, J, concurs specially.

Blackburn, Judge,

concurring specially.

I concur in the judgment of the majority, as we are bound by the decisions of our Supreme Court. I concur specially to point out flaws in the procedures by which cases are analyzed and ruled upon in the appellate courts of Georgia.

The Supreme Court has rejected the majority’s holding that Dr. Kilpatrick’s misrepresentations to plaintiff tolled the statute of limitation as to Dr. Rossi also as they were engaged in a joint venture. As any actionable negligence under the facts in this case was largely attributable to Dr. Rossi, the effect of the Supreme Court’s ruling is to leave plaintiff with an essentially empty right to proceed against the remaining physician in the action.

As addressed in the special concurrence in Oxley v. Kilpatrick, 225 Ga. App. 838, 842 (486 SE2d 44) (1997), Dr. Rossi advised plaintiff that “ he was Kilpatrick and Moore’s associate, the third associate in the practice.’ ” On cross-examination, plaintiff was asked: Q. And how did (Dr. Rossi) identify himself? A. He was Dr. Rossi, third associate in Kilpatrick’s practice.’ ” Dr. Kilpatrick also considered that Dr. Rossi was providing services in his stead, based upon their mutual arrangement of each caring for the other’s patients. Dr. Rossi personally acknowledged that he considered himself to be Oxley’s doctor during the period he treated her and that he was responsible for her care.

This was an appeal from the grant of summary judgment to the physicians. Summary judgment is appropriate only when the court, viewing all the facts and reasonable inferences from those facts, in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). For summary judgment purposes, Dr. Rossi and Dr. Kilpatrick were partners as a matter of law, who were jointly treating Oxley. This is true regardless of the Supreme Court’s ruling on the joint venture holding of the majority.

Here, the Supreme Court has failed to apply the “right for any reason” doctrine in its analysis of the holding of this Court. This case demonstrates the danger of our Supreme Court limiting its certiorari review to a narrow issue, without scrutinizing the case thereafter under the “right for any reason” doctrine. Unless the Supreme Court intended to overrule Lau’s Corp., and reinterpret the clear meaning of OCGA § 9-11-56, it must be concluded that, in reversing our opinion on a narrow issue, the resulting opinion is wrong as a matter of law.

This case also makes apparent another flaw in this Court’s rules governing the analysis and drafting of its opinions. Under the procedures of the Court of Appeals, our judges sit in three-judge panels. Cases are assigned to individual judges who author the proposed opinion and circulate it to the remaining two judges on the panel. If either of the two reviewing judges on the panel has a different view from that of the author, such position is reduced to writing. If such writing would result in a different judgment line, the writing becomes a dissent and circulates “whole court.” If the writing would not result in a different judgment line, then the writing becomes a “special concurrence” and the case does not circulate outside the panel. The importance of this distinction is that the majority position on this issue is only a two-judge opinion. Clearly, “whole court” circulation rather than a two-judge opinion increases the likelihood of the disputed issue being rightly decided initially. The flaw in our procedures becomes obvious when it is realized that the same rule would apply even if the third judge had concurred in the special concurrence rather than the majority, so long as the judgment line would not be different. Under such a circumstance, there would be a “majority” of one. We do not apply this principle in “whole court” cases, where the majority is the position with the most votes.

These rules also ignore the fact that different analyses which would require the same judgment line under our Court’s interpretation might have a different legal effect upon the case subsequently in the trial court. See Gen. Motors Corp. v. Conkle, 226 Ga. App. 34 (486 SE2d 180) (1997), a two-judge majority by which the trial court was precluded from imposing the sanction of dismissal of defendant’s answer, upon remand, while -under the special concurrence, the trial court would not have been so limited. It is simply inaccurate to contend that the opposing views are essentially the same when their relative effect on the rights of the parties and in the trial court is totally different. Under our rules, a single authoring judge would control the rights of the parties and the subsequent effect of the opinion in the trial court, even had the third judge joined the special concurrence. While the “judgment line” rule will generally have an appropriate result, it often will not, and justice should not be sacrificed for the efficiency of a black and white rule.

Decided December 2, 1998

Reconsideration denied December 16, 1998.

Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Gary C. Christy, Steven K. Leibel, for appellant.

Love & Willingham, Daryll Love, Michael J. Hannan III, Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Brian R. Neary, Leslie B. Zacks, for appellees.

While the “judgment line” rule is an appropriate first step in the analysis of the relative positions of the authors, the addition of a second step, which then determines whether or not the different positions would have a significantly different impact on the rights of the parties or the actions of the trial court upon the issuance of our opinion, would enable this Court to appropriately address those situations where the application of step one does not permit the resolution of the different effect of the conflicting positions. If there would be no significant difference in the effect of the positions, then the writing should be treated as a special concurrence. If there would be a significant difference in the effect of the positions, the writing should then be treated as a dissent and circulated “whole court.”

Similarly, where there is a conflict between the analyses of two judges in a three-judge panel case, the majority opinion on the issue in conflict should be that of the position receiving two of the three votes on the panel. This principle is generally applied by our Court in “whole court” cases. Often there are special concurrences which do not conflict with the majority opinion, and such concurrences would not be affected under the above adjustments to our procedures. These rule changes would avoid the absurdity of having a one-judge “majority” or two-judge Court of Appeals opinions. Our Supreme Court is not required to consider a special concurrence when reviewing the one- or two-judge “majorities,” and where, as here, they do not do so, the inclusion of a special concurrence is of no effect, even if it provides the appropriate legal result.

The rules of the appellate courts of Georgia should be structured and applied so as to do justice. Where such structure and application result in a holding that is wrong as a matter of law, justice has not been served.