author: Beasley, Presiding Judge.

text:
    A94A2168.
    DRAKE v. LaRUE CONSTRUCTION COMPANY et al.
    (451 SE2d 792)
   Beasley, Presiding Judge.

Drake was employed by LaRue Construction Company as a manual laborer on a construction site, when a nail gun fell, hit him on the head, fractured his skull, and dislocated his shoulder. LaRue, insured by Hartford, accepted the head and shoulder injury as compensable and began paying weekly total-disability income benefits.

Drake was treated for the skull fracture by Dr. Downing, a neurosurgeon, until he was discharged without limitation. The shoulder injury was treated by Dr. Buelvas, an orthopedist. He dismissed Drake with a five percent permanent physical impairment of the body as a whole, for which Drake was paid workers’ compensation benefits.

LaRue subsequently filed a “notice of suspension of income benefits” form (WC-2) on the ground that Drake had returned to work with a different employer. Drake filed a “notice of claim/request for a hearing” form (WC-14) on the ground that the suspension was improper in that his head injury caused him to have disabling cognitive losses.

Although Drake has a history of psychological and alcohol-related problems dating back to his childhood, family members testified that he underwent personality changes after his head injury. Also, he was arrested for DUI, being a habitual violator, and various traffic offenses. While incarcerated, he was evaluated by Dr. Grant, a neuropsychologist.

At the commencement of the hearing at which Drake’s testimony was received, Drake asserted as his position that his cognitive losses, although diagnosed only recently, had been ongoing since he received the head injury. LaRue argued, and the ALJ agreed, that since Drake had been released to return to work, the issue should be characterized as a change in condition.

At a subsequent hearing, Dr. Grant testified that although Drake had certain preexisting cognitive deficits, the blow to his head resulted in numerous additional ones.

The ALJ’s award found that Drake had not carried his burden of showing that his psychological problems are related to his compensable physical injury. The Board’s award on appeal found that Drake had shown by a preponderance of the evidence that some of his psychological problems are causally connected to his on-the-job injury and ordered the recommencement of total disability income benefits.

On appeal, the superior court cited Evco Plastics v. Burton, 200 Ga. App. 121 (407 SE2d 60) (1991), and other cases, for the rule that a claimant in change-in-condition cases must show that the inability to secure suitable employment elsewhere was proximately caused by his previous accidental injury. It held that since the evidence showed that Drake had failed to look for work, he did not prove his case. It also held that the Board had based its award upon incompetent evidence in that, under Chandler Exterm. v. Morris, 262 Ga. 257 (416 SE2d 277) (1992), a neuropsychologist is not qualified to testify regarding causation of psychological problems. The court recognized that the statute upon which the Chandler decision was based was amended effective July 1, 1993. However, the court ruled that Grant’s testimony was submitted prior to the amendment’s effective date and remained inadmissible. Citing Handy v. Speth, 210 Ga. App. 155, 156 (2) (435 SE2d 623) (1993) (which applied Chandler after the amendment’s effective date), the court also questioned the effect of the amendment upon the Chandler decision. We granted Drake’s application for discretionary appeal.

1. The court erred in characterizing this as a change-in-condition case.

Evco Plastics, supra, and like cases, are applicable when an employee who has received a disabling injury has actually returned to work and is discharged for a cause unrelated to the injury. Drake never returned to work. Accordingly, the burden would be on LaRue to justify its suspension of benefits based upon the assertion that Drake had recovered from his physical injuries. See Johnson Controls v. McNeil, 211 Ga. App. 783, 785 (1) (440 SE2d 528) (1994). The issue raised by Drake was whether he had been rendered psychologically or mentally disabled as of the date the head injury was inflicted. The ALJ and Board correctly concluded that as to this issue, the burden on Drake in this proceeding was to show that his disabilities are causally connected to his physical injury.

2. The court erred in refusing to consider the testimony of neuropsychologist Grant concerning the issue of whether Drake’s cognitive deficits were caused by his head injury.

In Chandler, the question for decision was whether a neuropsychologist was competent to testify that each member of a family he had interviewed and evaluated had organic brain disease as a result of exposure to a neuro-toxic chemical. Reversing Division 2 of Morris v. Chandler Exterm., 200 Ga. App. 816, 817 (409 SE2d 677) (1991) (which had relied on Jacobs v. Pilgrim, 186 Ga. App. 260, 262 (1) (367 SE2d 49) (1988)), the Supreme Court answered this question in the negative. The Court held that a psychologist is not qualified to render an opinion concerning a diagnosis of a mental disorder when such disorder requires a professional opinion as to a physical disorder, although a physical disorder may manifest psychological effects concerning which a psychologist may render an opinion. 262 Ga. at 258, n. 2. The Court arrived at this holding by comparing OCGA § 43-39-1 (2) (which defined the practice of psychology as including the diagnosis of mental disorders) with OCGA § 43-34-20 (3) (which in effect defines the practice of medicine as including the diagnosis or treatment of physical or mental disorders).

Effective July 1, 1993, the General Assembly amended OCGA § 43-39-1. It added paragraph (2), which defines the practice of neuropsychology as “the subspecialty of psychology concerned with the relationship between the brain and behavior, including the diagnosis of brain pathology through the use of psychological tests and assessment techniques.” Former paragraph (2) was redesignated as paragraph (3), and it now defines the practice of psychology so as to include “diagnosing and treating mental and nervous disorders and illnesses, rendering opinions concerning diagnoses of mental disorders, including organic brain disorders and brain damage.”

We discern that the intent of the amendment was to legislatively overrule Chandler, at least to the extent that it held that a neuropsychologist is not qualified to render an opinion concerning the diagnosis of the pathology of organic brain disorders and brain damage. Under the amendment, Grant is not incompetent to testify that in his opinion Drake’s cognitive deficits were caused by his head injury.

Although Grant’s testimony was not admissible under Chandler (the law in effect when the ALJ heard this testimony and rendered his award), it is admissible under the amendment (the law in effect when the Board rendered its award and when the superior court rendered its decision). Insofar as it is applicable here, the amendment concerns a rule of evidence, which is procedural. The legislature did not express an intent that the amendment not be applied retroactively. See Polito v. Holland, 258 Ga. 54, 55 (365 SE2d 273) (1988). Therefore, the court erred in not ruling that under the amendment, Grant’s testimony can be considered in support of the Board’s award. See Osteen v. Osteen, 244 Ga. 445, 446 (260 SE2d 321) (1979), which held that a reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that was correct at the time it was rendered and affirm a judgment that was erroneous at the time, where the law has been changed in the meantime and where such application of the new law will impair no vested right under the prior law.

Decided November 17, 1994

Reconsideration denied December 5, 1994

Cletus W. Bergen II, Davis Cohen, for appellant.

Shari S. Miltiades, for appellees.

Taylor & Harp, J. Sherrod Taylor, amicus curiae.

Handy, supra, decided after the effective date of the amendment, involved a personal injury action tried before the amendment’s effective date. The jury returned a verdict in favor of defendant. We held, under the authority of Chandler, that the trial court properly precluded testimony of a neuropsychologist regarding plaintiff’s psychological disorder as having been caused by a brain injury due to a blow to the head. No issue was raised in regard to whether the judgment should have been reversed and a new trial ordered on the ground that the neuropsychologist’s testimony had become admissible under the law in effect when the appeal was decided.

Judgment reversed.

Andrews and Johnson, JJ., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A94A0918.
    FULTON v. ANCHOR SAVINGS BANK, FSB et al.
    (452 SE2d 208)
   McMurray, Presiding Judge.

Carrie B. Fulton (plaintiff) filed a multi-count complaint and an amended complaint against Anchor Savings Bank, FSB (“Anchor Bank”), Omni Recovery Services, Inc. (“Omni”), Southern States Vehicle Auction of Atlanta, Inc. (“Southern States”) and James L. Carter (defendants) for the alleged wrongful repossession of her automobile. Defendants denied the material allegations of the complaint and the parties filed opposing motions for summary judgment. The evidence, construed in a light which most favorably supports plaintiff’s claims, reveals the following:

On June 28, 1986, plaintiff financed and purchased a new car through an automobile dealership and committed the vehicle as collateral under a retail installment contract (“the loan agreement”) assigned to Anchor Bank. The loan agreement calls for sixty consecutive monthly installments in the amount of $366.19, prescribes a late charge of five percent on any payment more than ten days overdue, prohibits plaintiff from moving the collateral without the lender’s prior written consent and requires plaintiff to insure the vehicle “with comprehensive, fire and theft, and a minimum amount of deductible collision insurance satisfactory to [the lender], endorsed to protect [the lender] with a licensed insurance company.” The loan agreement also provides that “[the lender] can waive or delay enforcing any of [its] rights without losing them.”

Plaintiff tendered all 60 monthly payments as required under the loan agreement and maintained the required comprehensive, fire, theft and collision coverage on the vehicle during the entire life of the loan. The only time plaintiff tendered a monthly payment beyond the ten-day grace period prescribed in the loan agreement was in the early part of 1989 when Anchor Bank closed its Marietta Street office (where plaintiff hand-delivered her payments) and posted an inaccurate address for customers to mail loan payments. This confusion was clarified and plaintiff thereafter posted her monthly payments to an address in Chamblee, Georgia, as she was directed by an agent for Anchor Bank.

In December 1988, plaintiff notified a teller at Anchor Bank’s Marietta Street office that she changed her residence on November 22, 1988, from the address designated on the loan agreement to an address in Atlanta, Georgia. The teller responded by (apparently) entering plaintiff’s new address into Anchor Bank’s computer records. However, the teller did not give plaintiff written authorization to move the collateral as required by the loan agreement and Anchor Bank never forwarded such authorization to plaintiff.

Anchor Bank posted a form notice, dated March 16, 1989, to the address listed on the loan agreement reminding plaintiff of the need for insurance covering the collateral and warning plaintiff that failure to confirm the existence of such insurance within 15 days of the date of the notice would result in procurement of a policy covering Anchor Bank’s interest in the vehicle (“forced placed policy”) at plaintiff’s expense. Plaintiff never received this notice as she no longer resided at the address provided on the loan agreement. As a consequence, Anchor Bank purchased a forced placed policy covering its interest in the vehicle from February 11, 1989 to February 11, 1990, and charged the premium cost ($1,284) to plaintiff’s loan account.

In December 1989, plaintiff’s insurance carrier settled a claim for damage to the plaintiff’s vehicle and issued a check in the amount of $1,358.77 to plaintiff and Anchor Bank as loss-payees. Both plaintiff and Anchor Bank endorsed the insurance check and tendered it to the automobile dealership where plaintiff’s car was repaired. Despite this proof of insurance, Anchor Bank purchased another forced placed policy covering the vehicle from February 11, 1990 to February 11, 1991, and charged the premium to plaintiff’s loan account, bringing the total balance for the forced placed insurance to $2,378. However, Anchor Bank did not demand reimbursement of the cost of these policies immediately. It waited until after plaintiff paid off her loan in July 1991.

Anchor Bank posted correspondence, dated August 14, 1991, to plaintiff’s former address demanding either proof that the vehicle was insured during the terms of the forced placed policies (between February 11, 1989 and February 11, 1991) or payment of the premiums paid for the forced placed policies. This letter required a response within 15 days from the date on the letter and included Anchor Bank’s promise that proof of such insurance would result in a credit to plaintiff’s loan account for the full cost of the forced placed insurance. Plaintiff never received this notice.

On September 13, 1991, Anchor Bank posted a notice to the address listed on the loan agreement demanding payment of amounts which appear to reflect the cost of the forced placed insurance. On September 16, 1991, Anchor Bank posted another notice to the address listed on the loan agreement demanding payment of an amount which appears to reflect the cost of the forced placed policies, plus a $73.20 late charge Anchor Bank claims plaintiff owes as a result of a delinquent payment during the term of the loan. A third notice demanding immediate payment of the same amount was mailed to plaintiff’s former address on September 25, 1991. When plaintiff did not respond to these notices, Anchor Bank contracted for Omni to repossess plaintiff’s car. Omni enlisted James L. Carter to carry out the task.

At 5:00 in the morning on October 11, 1991, Carter went with two other men to plaintiff’s home in Atlanta to seize the collateral. Plaintiff was (apparently) aroused from sleep by the activities of Carter and his associates and confronted the men outside her home. Plaintiff informed the strangers that they had no right to seize her car and showed Carter proof that she paid the car loan off in July 1991. Carter informed plaintiff that the car was being repossessed for lack of insurance. Plaintiff then showed Carter proof that she maintained insurance on the vehicle during the entire life of the loan. Nonetheless, Carter refused to leave plaintiff’s premises, explaining that it was his job to seize her car.

Plaintiff telephoned for police assistance and attempted to move the vehicle from her driveway and into her garage. However, Carter’s associates stepped in front of the garage door, blocking her way. Plaintiff then ordered the men to remove themselves from her path. The strangers complied and warned plaintiff that she would be committing an illegal act if she refused to relinquish control of the car. Plaintiff then heard Carter inform his associates that they would have to remove the car by force, i.e., towing.

A law enforcement officer later arrived on the scene and examined Carter’s repossession papers. The officer informed plaintiff that Carter had authority to repossess the car and instructed plaintiff to turn her car keys over to Carter. Plaintiff complied and Carter took possession of the vehicle, delivering it to Southern State’s place of business where it was prepared for auction.

Plaintiff contacted Michael Cerase, an agent for Anchor Bank, on the day the car was repossessed and Cerase informed plaintiff that her car would not be returned. That same day, Cerase posted a letter to plaintiff’s former address informing plaintiff that her car would be sold at a private sale on October 21, 1991, if she did not pay an amount which appears to reflect the cost of the forced placed insurance plus a $73.20 late charge Anchor Bank claims plaintiff owes as a result of a delinquent payment during the term of the loan. However, this threat was never carried out and plaintiff’s car was returned to her by Southern States five days after repossession upon the direction of Anchor Bank. On October 22, 1991, Anchor Bank posted a notice to plaintiff’s former address congratulating her “on the successful completion of payments on [her] loan.”

The trial court denied plaintiff’s motion for summary judgment and granted defendants’ motions for summary judgment. This appeal followed. Held:

1. Defendants have filed a motion to remand the case sub judice to the trial court, pointing out that a transcript of the summary judgment hearing is not included in the appellate record as requested by plaintiff in her notice of appeal.

In the notice of appeal, plaintiff’s attorney directed “[t]he Clerk [of the trial court] to omit nothing from the record on appeal” and augmented this directive via the following handwritten insertion: “The summary judgment hearing transcript should be included.” Over two months later, plaintiff’s attorney posted (in pertinent part) the following letter to a deputy clerk of the trial court: “Please remit the record on the above-styled case to the Georgia Court of Appeals. There is no transcript to forward with the record in this case.” The clerk of the trial court transmitted “the original Notice of Appeal together with a true copy of those portions of the record required to be transmitted to the Court of Appeals of Georgia. ...” After the case was docketed in the Court of Appeals, defendants jointly filed a motion to remand the appeal to the trial court, arguing the case sub judice is premature because of plaintiff’s failure to have the summary judgment hearing transcript prepared and filed for inclusion in the record on appeal.

Defendants fail to point to any specific evidentiary material or admission adduced at the summary judgment hearing which could have possibly supported or detracted from the trial court’s ruling on summary judgment. On the other hand, plaintiff contends no such evidentiary material or admission was adduced during the summary judgment hearing and that argument of counsel was all that was accomplished at the hearing. Our examination of the parties’ (multi-faceted) briefs in the case sub judice, the ten-volume record (comprising multiple depositions, affidavits and evidentiary filings) and the trial court clerk’s certificate that she complied with plaintiff’s directive to omit nothing from the record on appeal indicates that all pertinent material before the trial court upon the parties’ opposing motions for summary judgment is now before this court on appeal. Consequently, “[w]e do not consider the transcript necessary to our disposition of this appeal from a grant of summary judgment. If defendant[s] as appellee [s] considered the transcript necessary, [they] could have had it prepared and sent to us ... , see OCGA §§ 5-6-41 and 5-6-42, or moved to compel plaintiff to do so.” Johnson v. Hardwick, 212 Ga. App. 44, 46 (4) (441 SE2d 450). Remanding the case sub judice to the trial court would only serve to delay adjudication of plaintiff’s appeal. Accordingly, defendants’ joint motion to remand is denied.

2. Plaintiff contends the trial court erred in granting defendants’ motion for summary judgment, arguing that genuine issues of material fact remain as to her claim for breach of the peace.

(a) “Unless otherwise agreed in the contract between the parties, ‘a secured party has on default the right to take possession of the collateral . . . without judicial process . . .’ so long as ‘. . . this can be done without breach of the peace . . .’ Code Ann. § 109A-9-503[, now OCGA § 11-9-503]. See Ford Motor Credit Co. v. Milline, 137 Ga. App. 585 (224 SE2d 437) (1976). [In the case sub judice, the loan agreement] clearly provided for repossession upon default of any payments (see Whisenhunt v. Allen Parker Co., 119 Ga. App. 813 (4) (168 SE2d 827) (1969)). . . . Thus, [a] primary issue before this court on appeal is whether [Carter and his associates] breached the peace in repossessing [plaintiff’s] car such that [defendants] are now liable for damages.” Deavers v. Standridge, 144 Ga. App. 673, 674 (1) (242 SE2d 331).

“ ‘(I)f collateral, such as a car, is on the streets or in a parking lot, no breach of peace will occur if the secured party takes it without protest or out of the presence of the debtor.’ Callaghan, Uniform Commercial Code Series, § 9-503:03, p. 559. [However, the unequivocal oral protest of the defaulting debtor eliminates] self-help repossession [as] a lawful alternative for the secured party. See Callaghan, supra, § 9-503:03 at p. 559. (Of course, whether a protest was made and if so made whether it is unequivocal, generally are questions for jury resolution.) . . . See Fish v. State, 124 Ga. 416 (52 SE 737); see also Williams v. State, 105 Ga. 608 (31 SE 738); cf. Deavers [c. Standridge, 144 Ga. App. 673, 674 (1), 675, supra,] (declining to hold that the jury was unauthorized to find a breach of the peace notwithstanding the evidence ‘was not strong’).” Hopkins v. First Union Bank of Savannah, 193 Ga. App. 109, 110 (1) (387 SE2d 144).

In the case sub judice, defendants Anchor Bank, Omni and Carter contend there was no breach of the peace because Carter and his associates were polite, unabusive and unprofane at the time of repossession. Defendants Omni and Carter also argue that no breach of the peace occurred because plaintiff voluntarily relinquished her car keys at the time of repossession. These arguments are without merit. It is not the function of this court (or the trial court) to resolve whether the acts of Carter and his associates constituted a breach of the peace. We review only the sufficiency of the evidence. Hill v. Fed. Employees Credit Union, 193 Ga. App. 44, 46 (2d) (386 SE2d 874). From this perspective, we find the circumstances of plaintiff’s resistance to seizure of her automobile at the time of repossession sufficient to authorize a finding that Carter and his associates breached the peace while repossessing plaintiff’s automobile. Hopkins v. First Union Bank of Savannah, 193 Ga. App. 109, 110 (1), supra. The fact that Carter and his associates may have been polite, unabusive and unprofane does not diminish the possibility that a jury may find that defendant Carter and his associates posed an intimidating presence during the early morning encounter with plaintiff and that their refusal to yield to plaintiff’s resistance cultivated a hostile environment which could have led to a breach of the peace. Further, it can hardly be said that plaintiff voluntarily relinquished possession of her vehicle at the time of repossession.

While consent to repossession may be a valid defense to a claim of wrongful repossession (Anderson, Uniform Commercial Code, § 9-503:24), such consent must be voluntary and freely given. See Anderson, Uniform Commercial Code, § 9-503:21. In the case sub judice, plaintiff testified that she gave up possession of her vehicle only after a law enforcement officer ordered her to do so. This evidence would authorize a finding that plaintiff did not freely and voluntarily relinquish possession of her car at the time of repossession.

The trial court erred in finding that genuine issues of material fact do not remain as to plaintiff’s claim for breach of the peace.

(b) Anchor Bank contends it is not responsible for any breach of the peace, arguing that repossession of plaintiff’s car was carried out by independent contractors who were acting outside the scope of its direction and control.

In Dietrich v. Trust Co. Bank of Augusta, 179 Ga. App. 330 (346 SE2d 107), this court affirmed the grant of summary judgment in favor of a bank for alleged wrongful repossession, reasoning that the bank was not responsible for any breach of the peace because the agent who seized the automobile was an independent contractor. However, this two-judge decision is physical precedent only and is not binding in the case sub judice. Court of Appeals Rule 35 (b). See Southern Mut. Ins. Co. v. Mason, 213 Ga. App. 584, 587, n. 2 (445 SE2d 569).

The general rule that an employer is not ordinarily liable for tortious acts committed by an independent contractor has important exceptions. For example, an employer may generally not delegate the manner of performance of duties imposed by contract, ordinance or statute. OCGA § 51-2-5 (3), (4). See Wilson & Brother v. White, 71 Ga. 506, hn. la; Campbell Coal Co. v. White, 140 Ga. 283 (1) (78 SE 1009). This basic maxim is enunciated in the Restatement of the Law of Torts, Second, § 425 (1965) and was recently enforced in Gaffney v. EQK Realty Investors, 213 Ga. App. 653, 655 (445 SE2d 771), where this court held that a landlord may not contractually avoid duties imposed by law (relating to the safety of a public elevator) via delegation of those duties to an independent contractor. In Gaffney, this court reasoned that public policy forbids such a waiver or release when the duty imposed is “ ‘one in which the public has an interest. . . .’” Central of Ga. R. Co. v. Lippman, 110 Ga. 665, 680 (2) (36 SE 202). Gaffney v. EQK Realty Investors, 213 Ga. App. 653, 655, supra.

In the case sub judice, the relevant public policy is found in OCGA § 11-9-503, prohibiting self-help repossession if there is threat of violence, injury or intimidation during repossession. Hopkins v. First Union Bank of Savannah, 193 Ga. App. 109, 110 (1), supra. We will not diminish this sound public policy by relieving a repossessing creditor of liability simply because the creditor employs an independent contractor to carry out the task of repossession. This holding is consistent with the view held by the Alabama Supreme Court in Gen. Finance Corp. v. Smith, 505 S2d 1045, where a secured creditor was held liable for a breach of the peace committed by an independent contractor employed to carry out a repossession. If we adopted the view of Dietrich v. Trust Co. Bank of Augusta, 179 Ga. App. 330, supra, it would unfairly allow creditors to avoid liability for violations of the uniform prohibition (Uniform Commercial Code, § 9-503) of self-help repossession in cases involving actual or possible breaches of the peace. See Hopkins v. First Union Bank of Savannah, 193 Ga. App. 109, 110 (1), supra.

(c) Omni similarly contends that it is not responsible for any breach of the peace, arguing that Carter and his associates were independent contractors who were acting outside the scope of its direction and control at the time of repossession. This contention is without merit.

Omni stepped in the shoes of Anchor Bank (under the loan agreement and under duties imposed upon a secured creditor by law) when it agreed to repossess plaintiff’s automobile. See Ramey v. Pritchett, 90 Ga. App. 745, 752 (3), 754 (84 SE2d 305). An employer is liable for the negligence of a contractor “[i]f the wrongful act is the violation of a duty imposed by statute.” OCGA § 51-2-5 (4). Consequently, assuming (without deciding) that Carter and his associates were acting on behalf of Omni as independent contractors, Omni will be liable for any damages plaintiff sustained based on a finding that Carter and his associates breached the peace in violation of OCGA § 11-9-503.

The trial court erred in granting summary judgment in favor of defendants Anchor Bank, Omni and Carter as to plaintiff’s claim for breach of the peace. However, the trial court did not err in granting summary judgment as to Southern States for breach of the peace as there is no evidence that Southern States was involved in the alleged wrongful repossession.

3. In her second enumeration, plaintiff contends the trial court erred in finding, as a matter of law, that there were bona fide events of default justifying repossession of her automobile.

Repossession is wrongful when the debtor is not in default. Alexander v. Heritage Corp., 175 Ga. App. 55 (332 SE2d 667). “As was held in Borochoff Properties v. Howard Lumber Co., 115 Ga. App. 691, 696 (155 SE2d 651), the Commercial Code does not specifically define a ‘default’ under a security agreement. ‘For the most part, the security agreement itself must define the standards for determining whether a default occurs.’ Vol. 1, Secured Transactions under UCC § 8.02.” Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 817 (4), 818, supra. In the case sub judice, the trial court found three separate events of default under the loan agreement authorizing repossession of plaintiff’s automobile, i.e., plaintiff was in default for (a) failing to name defendant Anchor Bank as a loss-payee under the motor vehicle liability insurance policies covering the vehicle during the term of the loan, (b) failing to notify defendant Anchor Bank of her change of address during the term of the loan and (c) failing to pay a $73.20 fee which allegedly accrued as a result of a late payment in 1989. Plaintiff challenges this finding, arguing that genuine issues of material fact remain as to the issue of a bona fide event of default which justified repossession of her vehicle. Plaintiff also argues (under another enumeration of error) that genuine issues of material fact remain as to Anchor Bank’s waiver of the loan agreement’s anti-waiver provision.

(a) Failure to Name Anchor Bank as a Loss-Payee. The loan agreement required plaintiff to insure the vehicle “with comprehensive, fire and theft, and a minimum amount of deductible collision insurance satisfactory to [the lender], endorsed to protect [the lender] with a licensed insurance company.” Although plaintiff complied with this provision by maintaining the required insurance coverage on her vehicle during the entire term of the loan, she failed to have Anchor Bank endorsed as a loss-payee on her policies of insurance. However, it can hardly be said that this omission constituted a bona fide event of default authorizing repossession of plaintiff’s car since it is undisputed that Anchor Bank did not base repossession of the collateral on the fact that it was not named as a loss-payee under plaintiff’s motor vehicle liability insurance policies. In fact, the record shows that Anchor Bank did not even know it was not named as a loss-payee until after plaintiff instituted this action. It thus follows that Anchor Bank may not defend plaintiff’s claim of wrongful repossession on an issue of default it did not rely on as a basis of repossession and which in no way is connected to the cause of repossession. Crosson v. Lancaster, 207 Ga. App. 404, 405 (2) (427 SE2d 864). Such a rule is justified on public policy grounds as well as estoppel principles. To say otherwise, would allow creditors to exercise self-help repossession without any real incentive to investigate the basis for repossession (i.e., the existence of a bona fide event of default) and would expose vendees, once in technical default, to perpetual risk of loss of goods via repossession without the benefit of preventive recourse. See Pierce v. Leasing Intl., 142 Ga. App. 371, 372 (2), 373 (235 SE2d 752).

The trial court recognized in its summary judgment order that, in response to an interrogatory soliciting the reason the collateral was repossessed, Anchor Bank responded: “ ‘Failure to maintain proper insurance on the vehicle. Plaintiff was in default for failure to provide proof of adequate insurance coverage to this defendant, the lien holder.’ ” These grounds provide no basis (i.e., bona fide events of default) for repossessing plaintiff’s vehicle. First, it is undisputed that plaintiff properly insured the vehicle during the entire term of the loan agreement. Second, the loan agreement did not require plaintiff to provide Anchor Bank with proof that the vehicle was insured “with comprehensive, fire and theft, and a minimum amount of deductible collision insurance satisfactory to [the lender], endorsed to protect [the lender] with a licensed insurance company.” Nonetheless, the parties hotly contest (and the trial court resolved) the issue of whether plaintiff informed Anchor Bank of her change of address during the term of the loan agreement. This dispute seems to be the heart of Anchor Bank’s defense to plaintiff’s claim of wrongful repossession and appears to be a valid condition of default under the provision in the loan agreement requiring plaintiff not to remove the collateral from the address listed on the loan agreement without the lender’s prior written consent. The trial court erred in finding that plaintiff’s failure to name Anchor Bank as a loss-payee was a bona fide event of default justifying repossession of the collateral.

(b) Change of Address. The loan agreement provides that plaintiff is not to remove the collateral from the address listed on the loan agreement without the lender’s prior written consent. We read this provision (as did the trial court and the parties) to mean that plaintiff must inform the lender of any change of address during the term of the loan agreement. It follows that, upon such notice of plaintiff’s change of address without prior written consent, the lender would have the option of acting on the default by repossessing the collateral or providing written consent for plaintiff to move the collateral from the address listed in the loan agreement. A third option is the lender’s acquiescence via failure to respond to plaintiff’s notice that the collateral has been (or is going to be) relocated. Such acquiescence may amount to a waiver of the loan agreement’s “prior written consent” and anti-waiver provisions. A jury is authorized to find such waivers when there is proof that a lender knowingly accepted the risk caused by the default and failed to insist on strict adherence to the terms of the security agreement. Pierce v. Leasing Intl., 142 Ga. App. 371, 372 (2), 373, supra; Smith v. Gen. Finance Corp. of Ga., 150 Ga. App. 269 (257 SE2d 302). It thus follows that the question of waiver in the case sub judice is directly linked to the issue of whether plaintiff properly notified Anchor Bank when she changed her address in November 1988.

“ ‘On summary judgment, movant has the burden of showing the nonexistence of any material fact and that (it) is entitled to a judgment as a matter of law. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.’ (Emphasis in opinion.) (Citations and punctuation omitted.) Sunamerica Financial v. Peachtree Street, Inc., 202 Ga. App. 790, 793 (2) (a) (415 SE2d 677) (1992).” Pitts v. Bank South Corp., 209 Ga. App. 124, 125 (433 SE2d 96). In the case sub judice, plaintiff testified that she informed a teller at Anchor Bank of her change of address within two weeks after moving her residence from the address listed on the loan agreement and that the teller (apparently) entered this information on Anchor Bank’s computer records. Plaintiff also testified that she posted her payments to Anchor Bank’s agent in Chamblee using envelopes bearing her new home address; that she gave her new address to an Anchor Bank telephone attendant via a long distance telephone call to New York during the early part of 1989 (after Anchor Bank closed banking operations in Georgia) and that Anchor Bank mailed an interest statement to her new address in the early part of 1989 in response to plaintiff’s request for information necessary for preparing her 1988 federal income tax return. This testimony and other evidence raises genuine issues of material fact as to whether plaintiff properly notified Anchor Bank of her change of address and whether Anchor Bank acquiesced to plaintiff’s relocation of the collateral, thereby waiving the loan agreement’s anti-waiver provision. Smith v. Gen. Finance Corp. of Ga., 150 Ga. App. 269, supra. See Anderson, Uniform Commercial Code, § 9-503:14.

(c) Late Payment. The loan agreement prescribes a five percent late charge on any payment more than ten days overdue. Although Anchor Bank now contends breach of this provision (i.e., plaintiff’s failure to pay the $73.20 late fee) was a bona fide event of default justifying repossession of the collateral, Anchor Bank neither alleges nor proves that this alleged, event of default was a material reason for its order to repossess plaintiff’s car. See Crosson v. Lancaster, 207 Ga. App. 404, 405 (2), supra. However, assuming the contrary, we review the record to determine whether the trial court was correct in finding plaintiff in default for failing to pay a five percent penalty on a monthly payment Anchor Bank alleges accrued as a result of a delinquent monthly payment.

Plaintiff gave undisputed deposition testimony that the only time there was confusion over her timely payment under the loan agreement was when Anchor Bank closed it operations in Atlanta and gave her the wrong address for forwarding her payment. Plaintiff explained that she made her usual trip to Anchor Bank’s Marietta Street office in early 1989 to tender her monthly car payment; that she then discovered that Anchor Bank had permanently closed its Marietta Street office and that she tendered her car payment (via mail) to another lending institution in response to a notice posted outside Anchor Bank’s Marietta Street office. Plaintiff explained that Anchor Bank later notified her that the car payment was past due, that she owed a five percent late charge as a consequence of the delinquent payment and that all future payments should be mailed to Anchor Bank’s agent in Chamblee, Georgia. Plaintiff testified that she thereafter posted all of her remaining payments under the loan agreement to the address in Chamblee given to her by Anchor Bank.

“If the nonperformance of a party to a contract is caused by the conduct of the opposite party, such conduct shall excuse the other party from performance.” OCGA § 13-4-23. The loan agreement provides that payments must be made at Anchor Bank’s Marietta Street office. Consequently, when Anchor Bank closed its Marietta Street office, it prevented plaintiff from delivering her payment in the manner required under the specific terms of the loan agreement. Consequently, plaintiff was not in default for failing to deliver the payment (Anchor Bank alleges was late) to the Marietta Street office within the time prescribed in the loan agreement. The trial court erred in finding that plaintiff was in default for failing to deliver a timely payment under the loan agreement.

The trial court erred in granting summary judgment in favor of Anchor Bank with regard to plaintiff’s claim that no bona fide event of default existed authorizing repossession of her automobile.

4. In her third enumeration, plaintiff contends genuine issues of material fact remain as to her claim that Anchor Bank failed to exercise “good faith” as required by OCGA § 11-1-208.

The loan agreement contained a provision entitling Anchor Bank to accelerate upon the happening of any circumstance leading it to deem itself insecure. “OCGA § 11-1-208 provides that such a term ‘shall be construed to mean that (the holder) shall have power to do so only if he in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against whom the power has been exercised.’ OCGA § 11-1-201 (19) defines ‘good faith’ as ‘honesty in fact in the conduct or transaction concerned.’

“On motion for summary judgment, the burden is on the movant to establish the absence of any material issue of fact. Barber v. Threl keld Ford, 199 Ga. App. 787, 788 (406 SE2d 249) (1991). The material issue [in the case sub judice] ‘is not whether the loan was in fact insecure, but whether, in determining the loan insecure, [Anchor Bank] acted honestly, in good faith, and not arbitrarily or capriciously [when it ordered repossession of plaintiff’s car].’ Ginn v. Citizens &c. Nat. Bank, 145 Ga. App. 175, 177 (1) (243 SE2d 528) (1978).” Crosson v. Lancaster, 207 Ga. App. 404, 405 (4), supra. In the case sub judice, the evidence places Anchor Bank’s good faith in issue by suggesting that it acted without checking the facts before ordering repossession of plaintiff’s automobile. Consequently, the trial court erred in entering summary judgment as to plaintiff’s claim against Anchor Bank for failing to act in “good faith” in repossessing plaintiff’s automobile. Compare First Bank of Savannah v. Kilpatrick-Smith Constr. Co., 153 Ga. App. 112 (264 SE2d 576); Custom Panel Systems v. Bank of Hampton, 143 Ga. App. 681 (239 SE2d 558).

5. We agree with plaintiff that genuine issues of material fact remain with regard to defendants’ liability for conversion and trespass. Plaintiff’s testimony indicates that her car was unlawfully seized (against her protest and sole right of possession) and held for five days. Fidelity Nat. Bank v. Wood, 189 Ga. App. 109 (1) (375 SE2d 228). Plaintiff also testified that certain items of personal property (i.e., magnetic recordings of her favorite gospel tunes, valuable receipts and papers, the vehicle’s emissions decal and other unspecified items of personalty) were missing from her vehicle when she recovered it from Southern States. See Builders Transport v. Hall, 191 Ga. App. 889, 891 (2) (383 SE2d 341).

The trial court erred in granting summary judgment as to plaintiff’s claim against defendants for trespass and conversion.

6. Plaintiff contends the trial court erred in granting summary judgment as to her claim for punitive damages.

“ ‘Negligence, even gross negligence, is inadequate to support a punitive damage award. Under OCGA § 51-12-5.1 (b), which is applicable ... , it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. . . . There is general agreement that, because it lacks this element, mere negligence is not enough. . . .’ (Citations and punctuation omitted.) Tower Fin. Svcs. v. Smith, 204 Ga. App. 910, 918 (5) (423 SE2d 257) (1992).” Hillman v. Gen. Motors Acceptance Corp., 210 Ga. App. 837, 839 (437 SE2d 803). In the case sub judice, the actions of Carter and his associates may have verged on a breach of the peace and Anchor Bank may have been grossly negligent in failing to investigate the basis for their order to repossess plaintiff’s automobile, but defendants’ conduct was not so aggravating or outrageous such as to indicate spite or malice, or a fraudulent evil motive, or such a conscious and deliberate disregard of plaintiff’s interests so as to warrant punitive damages. See Gaither v. BarclaysAmerican/Financial of Ga., 194 Ga. App. 188, 189 (390 SE2d 97). See also Investment Securities Corp. v. Cole, 186 Ga. 809, 810 (1) (199 SE 126). This conclusion is supported by undisputed evidence showing that Anchor Bank returned the collateral after plaintiff produced evidence that she had insured the vehicle during the term of the loan and plaintiff’s testimony that Carter and his associates were not abusive or profane at the time of repossession. See Evans v. Willis, 212 Ga. App. 335, 337 (1a) (441 SE2d 770).

Decided December 5, 1994.

Timothy W. Storm, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Paul R. Vancil, Welch, Spell, Reemsnyder & Pless, Robert A. Burnett, Freeman & Hawkins, B. Rose Miller, Warner S. Fox, for appellees.

The trial court did not err in granting summary judgment as to plaintiff’s claim for punitive damages.

7. For the reasons discussed in Division 6, “[t]he trial court did not err in granting summary judgment as to [plaintiff’s] claim of intentional infliction of emotional distress. The conduct at issue does not meet either the requisite standards of outrageous or egregious conduct or of severity within the meaning of Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703 (409 SE2d 835); Moses v. Prudential Ins. Co., 187 Ga. App. 222, 225-226 (369 SE2d 541).” Eyre v. Denise, 214 Ga. App. 552, 555 (4) (449 SE2d 120). See also Clark v. Gen. Motors Acceptance Corp., 185 Ga. App. 130, 133 (3) (363 SE2d 813).

8. In her final enumeration, plaintiff contends the trial court erred in granting summary judgment in favor of defendants Omni and Carter as to her claim under the Fair Debt Collection Practices Act, 15 USCA § 1692 et seq.

The trial court found defendants Omni and Carter not subject to liability under the Fair Debt Collection Practices Act because they were lawfully enforcing a “present right” under a security interest at the time of repossession. See Jordan v. Kent Recovery Svcs., 731 FSupp. 652, 659. This finding was erroneous since genuine issues of material fact remain as to Anchor Bank’s “present right” to seize plaintiff’s vehicle, i.e., whether there existed a bona fide event of default justifying seizure of plaintiff’s car. Consequently, the trial court erred in granting summary judgment as to plaintiff’s claims against defendants Omni and Carter under the Fair Debt Collection Practices Act.

Judgment affirmed in part and reversed in part. Motion to remand denied.

Pope, C. J., and Smith, J., concur in the judgment only.

       Anchor Bank would have been justified in believing it was named as a loss-payee under plaintiff’s motor vehicle liability insurance policies, at least during the 12-month period the first forced placed policy was in effect, since it is undisputed that plaintiff’s insurance carrier named Anchor Bank as a loss-payee in the $1,358.77 settlement check issued by plaintiffs insurance carrier in December 1989.

       The trial court also recognized that “Anchor amended its answer to contend that plaintiff was in default at the time of repossession because although she in fact had maintained insurance, her insurance policy did not provide for Anchor to be a lienholder.” However, Anchor Bank offers neither proof nor allegation that plaintiff’s failure to name it as a loss-payee was actually a basis for its order to repossess plaintiff’s vehicle. On the contrary, the evidence shows that Anchor Bank ordered repossession of plaintiff’s car because plaintiff failed to respond to Anchor Bank’s demand letters of August and September 1991.

       This undisputed fact renders it unnecessary for this court to address plaintiff’s argument that the loan agreement did not create a lien against the collateral for the alleged debt which arose as a result of the forced placed insurance. However, we note that the loan agreement clearly provides for maintenance of insurance as a condition of default warranting repossession and acceleration of the underlying debt. The loan agreement also provides that plaintiff will be responsible for the cost of any necessary forced placed insurance.


author: Ruffin, Judge.

text:
    A94A1065.
    MARSHALL et al. v. RICMAR, INC.
    (451 SE2d 515)
    Decided December 5, 1994.
    G. Brian Spears, for appellants.

      James C. Watkins, Edward E. Carter, for appellee.
   Ruffin, Judge.

Ricmar, Inc. d/b/a Aamco Transmission filed suit against John Marshall and Grace Creta to foreclose on a mechanic’s lien. The matter was tried before a jury which returned a verdict for Ricmar, Inc. on September 13, 1991. On the same day, Ricmar, Inc. filed a motion for litigation costs and attorney fees pursuant to OCGA § 9-15-14. The court entered judgment on the verdict on September 17, 1991. On October 7, 1993, the court granted Ricmar, Inc.’s motion.

We granted Marshall and Creta’s application for discretionary appeal to determine whether the motion for costs of litigation and attorney fees pursuant to OCGA § 9-15-14, filed the day the jury returned its verdict but before the entry of judgment, was filed “after the final disposition of the action” as required by subsection (e) of that Code section. Since we granted the application, the Georgia Supreme Court held in Fairburn Banking Co. v. Gafford, 263 Ga. 792, 794 (439 SE2d 482) (1994), that “there is a ‘window of opportunity’ for seeking attorney fees under OCGA § 9-15-14 which begins with the entry of final judgment as defined in OCGA § 5-6-34 (a) (1) and ends 45 days later.” (Emphasis supplied.) The court concluded the phrase “final disposition” is synonymous with the phrase “final judgment,” “that is to say, where the case is no longer pending in the court below. . . .” OCGA § 5-6-34 (a) (1). Since Ricmar, Inc.’s motion for litigation costs and attorney fees “was not filed within that window of opportunity, the trial court lacked jurisdiction to consider it. The award to [Ricmar, Inc.] was, therefore, error.” Fairburn Banking, supra.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.

       Although the judgment on the verdict does not appear in the record before this court, the parties are in agreement that the court entered judgment on September 17, 1991.


author: Johnson, Judge. Beasley, Presiding Judge,

text:
    A94A1073.
    TIFTON BANK & TRUST COMPANY v. KNIGHT’S FURNITURE COMPANY, INC.
    (452 SE2d 219)
   Johnson, Judge.

Shirley Knight, president of Knight’s Furniture Company, Inc., retained attorney Ernest Yates to represent the company in negotiations with her insurance carrier in connection with a fire loss suffered at the company store in Tifton, Georgia. Knight authorized Yates to settle the company’s claim under the policy for $320,000. The insurance company sent Yates an acceptance draft in that amount payable through First National Bank of Atlanta. The draft was made payable to “Knight’s Furniture Company Inc & Ernest J Yates, Its Attorney.” Yates presented the draft to Tifton Bank & Trust Company for deposit into his firm’s trust account. When presented, the draft was endorsed on the back: “Knights Furniture Company, Inc by Ernest J. Yates, its attorney And Ernest J Yates.” After Knight made repeated inquiries about the insurance proceeds and informed Yates of her pressing financial needs, Yates advanced her $16,863 from the trust account, never disclosing to Knight that he had already received, endorsed, and deposited the draft. Two weeks later Yates committed suicide. At the time of his death, only $55,717 remained in Yates’ trust account. Knight’s filed this conversion action against the Bank, alleging the Bank had wrongfully accepted the draft for deposit. The case was tried before a jury, which returned a verdict in favor of Knight’s for $320,000, together with $25,000 in punitive damages and $80,000 in attorney fees and expenses of litigation. The Bank appeals.

1. The Bank contends that the evidence was insufficient to authorize the verdict because: (a) Yates, as attorney for Knight’s, had authority to act on behalf of Knight’s; (b) the Bank’s actions were commercially reasonable; and (c) Knight’s ratified the endorsement.

(a) Generally, a bank which accepts for deposit a check containing a forged endorsement is liable for conversion. OCGA §. 11-3-419 (1) (c); Trust Co. Bank of Augusta v. Henderson, 185 Ga. App. 367, 369 (1) (364 SE2d 289) (1987). Forgery includes the endorser knowingly signing and presenting a check so as to give the appearance of authority which he does not have. See OCGA § 16-9-2 (a); Henderson, supra at 369. At trial, Knight testified that she had expressly forbidden Yates to endorse any draft on behalf of the company. This testimony was uncontradicted. We hold that because Yates did not have authority to sign and present the draft, he committed a forgery for which the Bank is liable.

In support of its argument to the contrary, the Bank relies upon John Bean Mfg. Co. v. Citizens Bank of Gainesville, 60 Ga. App. 615, 617-618 (4 SE2d 924) (1939), which held that an attorney employed to collect an account has implied authority to endorse his client’s name to a check in order to convert it to cash. Id. at 617. There is nothing in the John Bean opinion indicating that the client in that case expressly prohibited the attorney from endorsing his client’s name on the check. The court found implied authority where apparently there was silence.

Any time authority as ancient as the John Bean case is relied upon, it raises a red flag. Consequently, we have carefully examined the history of the case. From September 1939 until the present, John Bean has only rarely been cited by Georgia’s appellate courts for the proposition for which the Bank cites it here. One such case cites John Bean as support for its holding that an attorney may do whatever is necessary, including file suit, to effectuate the collection of a claim, unless the client has given him direct instructions to the contrary. M & M/Mars v. Jones, 129 Ga. App. 389, 392 (6) (199 SE2d 617) (1973). In another case, Pope v. State, 179 Ga. App. 739 (347 SE2d 703) (1986), a majority of this court held that the jury in a criminal case was authorized to find an attorney guilty of forgery for endorsing his clients’ names on a settlement check, although it added that the endorsement was a forgery only if the writing purported to be his clients’ writing. Id. at 741 (1). We note that Pope did not involve the question of a bank’s liability for accepting a check containing such an endorsement. In a special concurrence in Pope, Presiding Judge Deen stated that the authority given attorneys by John Bean should not include endorsing a client’s name on a check unless it is clearly authorized. Pope, supra at 745. As the majority noted in Pope, the holding in John Bean appears to be contrary to the view adopted in the majority of jurisdictions. Id. at 741, n. 1; see also In re Johnson, 552 NE2d 703 (Ill. 1990); Third Nat. Bank &c. Co. v. Diamond Savings &c. Co., 540 NE2d 272 (Oh. App. 1987). The most recent case relying on John Bean for the proposition that an attorney is authorized to endorse his client’s name on a negotiable instrument is Titus v. Commercial Bank, Douglasville, 214 Ga. App. 657 (448 SE2d 753) (1994). There the court held that an attorney has implied authority to endorse and deposit a check made payable to his client, regardless of the fact that the attorney was expressly denied authority to do so.

We are of the opinion that John Bean, to the extent it allows a bank to escape liability when it pays a check on an attorney’s unauthorized endorsement of his client’s name, is inconsistent with and is therefore superseded by Georgia’s adoption in 1962 of the Uniform Commercial Code. See generally, Jacobs v. Metro Chrysler-Plymouth, 125 Ga. App. 462, 465 (1) (188 SE2d 250) (1972). In enacting OCGA §§ 11-3-419 (1) (c) and 16-9-2 (a), the legislature saw fit to hold banks liable for accepting for deposit checks endorsed without the authority of the payee, despite the holding in John Bean. The legislature could have but did not carve out an exception for attorneys. “All statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it, and are therefore to be construed in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and decisions of the courts.” (Citations omitted.) Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1, 9 (3) (178 SE2d 868) (1970). We note that in both Titus and the case before us the payees gave the banks absolutely no indication whatsoever that they even employed the attorneys, let alone that the attorneys were authorized to endorse the payees’ names. To hold that there was authority under these circumstances is inconsistent with the well-established rule that there can be no apparent agency where there were no manifestations of authority by the principal. Marcoux v. Northside Realty Assoc., 207 Ga. App. 99, 100 (1) (427 SE2d 72) (1993); Addley v. Beizer, 205 Ga. App. 714, 718 (423 SE2d 398) (1992).

We also find John Bean to be inconsistent with those rules governing the conduct of attorneys in this state. Georgia’s Supreme Court has stated that it is a violation of State Bar Rule 4-102, Standard 4, for an attorney to endorse a draft on behalf of a client without permission. In the Matter of Antinoro, 253 Ga. 296 (319 SE2d 460) (1984); see also In the Matter of Frederick M. Scherma, 255 Ga. 206 (336 SE2d 570) (1985). Moreover, public policy would not allow attorneys to be exempt from laws against endorsing checks without authority. To borrow Judge Birdsong’s language from Vandiver v. McFarland, 179 Ga. App. 411, 413 (346 SE2d 854) (1986), the public would “recoil in horror and deny it” if told an attorney can lawfully sign his client’s name to a check made payable to the client and then deposit it into his own account even if the client expressly tells the attorney not to do so. Attorneys should have authority to endorse or present for deposit checks or drafts on which their clients are payees only when they have been expressly given that authority. Banks should not assume that such authority exists. Accordingly, to the extent that John Bean and Titus hold otherwise, they are overruled.

The measure of damages for conversion of an instrument is presumed to be the face amount of the instrument. See OCGA § 11-3-419 (2). Here, however, it is undisputed that Knight’s received an advance from Yates’ trust account with the Bank in the amount of $16,863. The Bank is entitled to a credit in that amount, for while the jury was authorized by the evidence to find against the Bank on the conversion issue, it was not authorized to award Knight’s the face amount of the draft given this undisputed evidence. The judgment should have reflected a reduction in this amount, and therefore it is vacated and the case remanded with direction that judgment be entered in the principal amount of $303,137.

(b) The Bank also argues that it is absolved from liability pursuant to OCGA § 11-3-419 (3) because it acted in good faith and in accordance with reasonable commercial standards. Whether reasonable commercial standards have been met is a question of fact to be resolved by the jury. The test is whether a reasonable person in accordance with reasonable commercial standards would be put on notice of some impropriety appearing either from the form of the instrument and its endorsements or from knowledge of facts outside the instrument itself. Trust Co. of Ga. Bank of Savannah v. Port Terminal &c. Co., 153 Ga. App. 735, 740 (1) (266 SE2d 254) (1980). Where endorsements are irregular on their face, and when the draft is offered for deposit into the account of one not the payee, the bank has a duty to inquire to ascertain the authority of the depositor to endorse and deposit the payee’s check. Thornton & Co. v. Gwinnett Bank &c. Co., 151 Ga. App. 641, 647 (4) (260 SE2d 765) (1979). “On appeal, the evidence must be construed to uphold the jury’s verdict, and the sole question for determination is whether there is any evidence to authorize the verdict.” (Citations and punctuation omitted.) Henderson, supra at 370 (1).

Here, there was evidence that the Bank failed to act in a commercially reasonable manner. The endorsements did not conform with the draft. That alone is sufficient to require that the Bank inquire whether Yates was authorized to endorse the draft as he did. But the evidence also showed the Bank had numerous other problems with Yates, who had a history of overdrafts in his trust account, as well as a history of mishandling loan proceeds with which he had been entrusted by the Bank as a closing attorney. The problems the Bank experienced with Yates were so severe that it instituted special banking procedures applicable to loans involving Yates as closing attorney. In addition, the teller operations manual adopted by the Bank requires that a teller verify a person’s authority to endorse a corporate or company check. Knight’s had no accounts with the Bank, and the Bank had no knowledge as to who was authorized to endorse drafts or checks on behalf of the company. Neither Knight herself nor any other officer or agent of Knight’s ever gave Yates any written or verbal authority to endorse a check or draft on behalf of the company, but no one from the Bank ever contacted Knight or anyone else to confirm whether Yates had that authority. Under these circumstances, there was ample evidence from which a jury could find that the Bank had notice of an impropriety. Therefore, the jury was authorized to conclude that the Bank failed to act in a commercially reasonable manner when it made no inquiry into Yates’ authority to endorse the draft before it allowed the draft to be deposited into his account. Thornton & Co., supra at 647-648 (4).

(c) The Bank’s argument that it is not liable because Knight’s ratified the endorsement by receiving a portion of the proceeds of the draft is without merit. For ratification to occur, the principal must have full knowledge of all material facts and accept and retain the benefits of the unauthorized act. Hendrix v. First Nat. Bank of Savannah, 195 Ga. App. 510, 511 (1) (394 SE2d 134) (1990). Knight’s testimony that she had no knowledge that Yates endorsed the company’s name on the draft or that the funds she received from Yates were from the proceeds of the draft was uncontroverted. Therefore, there was evidence from which the jury could find there had been no ratification by Knight’s of Yates’ unauthorized acts.

2. There was no evidence to support an award of punitive damages. The Bank was relying on the implied authority principle which was created in Georgia law in John Bean, supra, and which even this court followed in Titus, supra. Given the existing case authority when the Bank acted, there was no clear and convincing evidence of wilful misconduct, malice, fraud, wantonness, oppression, or an entire want of care which would raise the presumption of a conscious indifference to consequences. OCGA § 51-12-5.1. See Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 862 (389 SE2d 355) (1989).

3. Similarly, the award of attorney fees was also erroneous because, based on the case authority existing at the time of the Bank’s actions, a genuine controversy existed which precludes the award of attorney fees pursuant to OCGA § 13-6-11. Read v. Benedict, 200 Ga. App. 4, 6 (406 SE2d 488) (1991).

4. The Bank argues that the trial court erred in admitting evidence of overdrafts in Yates’ trust account, of Yates’ mishandling of loan proceeds as a closing attorney for the Bank, and special procedures instituted by the Bank regarding closings where Yates was the attorney. This enumeration is without merit.

Evidence is relevant if it logically tends to prove or to disprove any material fact which is at issue in the case. Thompson v. Hardy Chevrolet-Pontiac-Buick, 203 Ga. App. 499, 503 (2) (417 SE2d 358) (1992). The evidence in question was material to the issues of whether the Bank acted in a commercially reasonable manner and whether it acted in bad faith in allowing the draft to be deposited. Questions of relevancy are for the trial court and, absent an abuse of discretion, this court will not interfere. Hayes v. Gary Burnett Trucking, 203 Ga. App. 693, 694 (1) (417 SE2d 676) (1992). There was no abuse of discretion in admitting this evidence.

5. The Bank contends that the trial court erred in allowing Knight to testify that the outcome of the case would determine whether she would keep her home. Counsel stated no specific grounds for the objection at trial. The objection is therefore deemed waived. Eiberger v. West, 165 Ga. App. 559 (1) (301 SE2d 914) (1983). In any event, the testimony was such that it is not likely that it affected the outcome of this case, and we find the error, if any, was harmless.

6. The Bank contends that the trial court erred in giving certain jury instructions, though it has offered no authority in support of this contention. We have carefully reviewed the charges complained of and find them to be correct statements of the law which are authorized by the evidence presented during the trial. This enumeration, therefore, is without merit.

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

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Andrews, Blackburn, Smith and Ruffin, JJ., concur. Pope, C. J., Beasley, P. J., and Blackburn, J. concur specially as to Division 1.

Beasley, Presiding Judge,

concurring specially.

1. I concur in Division 1 but not in all that is written.

In this case we are eliminating the implied authority of an attorney to endorse the name of the attorney’s client on a negotiable instrument. No longer does this authority arise out of the statutory provision that “[t]he agent’s authority shall be construed to include all necessary and usual means for effectually executing it.” OCGA § 10-6-50. When John Bean Mfg. Co. v. Citizens Bank of Gainesville, 60 Ga. App. 615 (4 SE2d 924) (1939) was decided, that was Code § 4-301.

Both then and now, the Code section continues: “Private instructions or limitations not known to persons dealing with a general agent shall not affect them. In special agencies for a particular purpose, persons dealing with the agent should examine his authority.” It made no difference in Bean whether the agent was regarded as special or general because there were no private instructions or limitations to begin with, and the law itself provided the authority to endorse, so there was no requirement to inquire. In this case there is a limitation, placed by the client. Since we conclude that before the bank accepts the check for deposit it is obligated to assure that the attorney is authorized, such as by requiring the production of a power of attorney expressly authorizing the endorsement of the client’s name, we position the attorney in the category of special agent.

Thus, what was once not a forgery because the law implied authority where there was no express authorization and no refusal to authorize, now is regarded as a forgery if it is undertaken without express authority. Once it is regarded as a forgery, of course, the bank is liable under OCGA § 11-3-419 (1) (c). One of the problems with implied authority, which the law gives, is that it contravenes a client’s express refusal to grant authority.

By requiring express authority to endorse, which may be easily effected by a power of attorney, we are also limiting or altogether eliminating apparent authority as a defense. Of course, as the majority points out, there is no evidence in this case that, from the viewpoint of the bank, the depositor had apparent authority to sign the co-payee’s name. The bank had no dealings whatsoever with the depositor’s client and was totally unaware of how it conducted its affairs.

In In the Matter of Antinoro, 253 Ga. 296 (319 SE2d 460) (1984), the attorney did have a power of attorney given him by his clients, but he used it beyond its intended scope. His contingent fee contract made no mention of no-fault coverage, and the attorney used the power of attorney as authority to endorse his clients’ names on drafts of no-fault payments as to which he was not entitled to a contingent fee. The Supreme Court agreed with the finding that the attorney improperly endorsed the drafts. (The attorney had also endorsed them without permission on behalf of the medical suppliers.) This constituted a violation of State Bar Rule 4-102, Standard 4: “A lawyer shall not engage in professional conduct involving dishonesty, fraud, deceit, or wilful misrepresentation. A violation of this standard may be punished by disbarment.” That case, of course, did not address the liability of the bank.

In the Matter of Frederick M. Scherma, 255 Ga. 206 (336 SE2d 570) (1985), involved a situation in which the attorney used a forged power of attorney as authority to endorse the client’s name on the client’s benefit checks. This was a violation of Standard 4. The attorney had notarized the purported power of attorney without witnessing the signature of his client or obtaining the client’s acknowledgment that the signature was his. The client did not give the attorney authority to endorse the checks. Again, although the bank’s liability was not an issue in this disciplinary matter, it is clearly “implied” that the attorney must obtain express authority. Otherwise, absent a later ratification, the signature is a forgery. Since the attorney cannot sign without express authority, the bank cannot assume that the authority exists.

Bean recognizes the general rule, to which we return without exception: “ ‘As a general rule an attorney can indorse his client’s name to negotiable instruments payable to the order of his client only when he has been expressly authorized to do so . . .’” Bean, supra at 617. The exception is the judicial creation of an implied authority “ ‘where it is a mere matter of form to enable the attorney to effect the purpose for which he was employed by the client.’ ” Id. at 617-618. The rule and the exception were quoted by the court in Bean as having come from CJS, although one of the cases cited is the Georgia case of Patterson v. Southern R. Co., 41 Ga. App. 94 (151 SE 818) (1930). In Patterson, there was a long course of dealings which authorized a finding of apparent authority of the attorney to settle the client’s claim, for which the client was bound; the attorney had implied authority to endorse the client’s name, insofar as the liability of the check’s drawer was concerned, because it could have made the check payable solely to the attorney or could have given cash, to effectuate the settlement.

The court in Bean also cites the Georgia case of C & S Nat. Bank v. Davis, 54 Ga. App 836 (188 SE 589) (1936), where the bank was held liable, but distinguishes it because the attorney endorsed the client’s name in his private capacity and not in his capacity as attorney and had specific instructions prohibiting him from endorsing the check. Yet the court in C & S Nat. Bank pointed out that “it should be assumed that a collecting attorney ordinarily has authority, as such, to indorse a check made payable to the order of his client.” Id. at 837 (2). C & S National Bank could not rely on any such implied authority because the attorney did not sign as such. Nevertheless, the court in that case recognized that the issue of whether the attorney has implied authority had not been settled in Georgia and that the foreign authorities were in conflict. So it cannot be said that the court established a principle of “implied authority” in that case. In fact, it stated at the outset of its analysis that “[i]t is the general rule that a drawee bank is liable to the true payee of a check, which it has certified at his instance, if it pays out the money under a forged or unauthorized indorsement of his name, unless the payee is precluded, by his ratification, negligence, or facts creating an estoppel, from setting up the forgery or want of authority. At its peril, the bank must know that the one to whom it pays such an indorsed check prima facie had authority to make the indorsement, and its mere good faith is no defense.” (Citing treatises and foreign cases.) Id. at 836 (1).

The court in Bean sought to justify the creation of implied authority by pointing out that the attorney has an interest in the collection in the nature of his own commission. It relied on the Restatement, not Georgia law. Bean at 619. The Restatement implied the authority as a natural step in obtaining his authorized commission: “If the agent is authorized to remit the amount in changed form, as where he is to deduct his commission, he would ordinarily be authorized to indorse the principal’s name for the purpose of obtaining the bank draft or other thing which he is to remit to his principal.” 1 Restatement of the Law, 172, § 72-e. That is a far cry from implying authority to sign a check from which there is no client-provided authority to deduct a commission. There would be no basis to assume that the attorney was entitled to a commission to be deducted from the check proceeds.

We are also rejecting, as the basis for creating implied authority, OCGA § 15-19-6, which provides: “Without special authority, attorneys cannot receive anything in discharge of a client’s claim but the full amount in cash.” That simply does not extrapolate into authority to convert to cash a check made out in the client’s name by endorsing the check in the client’s name. In Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544) (1983), the Supreme Court stated in footnote one that “the general application of this section is in regulation of the relationship between attorney and client and in matters in which the claim in question is for a sum certain. . . .” In construing OCGA § 15-19-5 the court confirmed that an attorney has apparent authority to enter into a binding agreement on behalf of a client so that, “where there is no challenge to the existence or the terms of an agreement but only to an attorney’s authority to enter into it, the client is bound by its terms even in the absence of a writing or detrimental reliance on the part of the opposite party.” Id. at 676-677. That does not give rise to an authority implied by law, in derogation of an express prohibition by the client, to endorse a client’s name to a check.

Decided December 5, 1994.

Groover & Childs, Denmark Groover, Jr., Gregory C. Sowell, for appellant.

Thomas H. Pittman, for appellee.

OCGA § 7-1-352 provides no relief to the bank in this instance. See Trust Co. Bank of Augusta v. Henderson, 185 Ga. App. 367, 368 (1) (364 SE2d 289) (1987), regarding the meaning of that statute.

2. I fully concur in the remaining divisions.

I am authorized to state that Chief Judge Pope and Judge Blackburn join in this special concurrence.

       See Vandiver v. McFarland, 179 Ga. App. 411 (346 SE2d 854) (1986), which criticizes the rule of apparent authority established in Brumbelow. See also Kaiser &c. v. Hancock, 106 Ga. 217 (32 SE 123) (1898), which rejects an implied authority of an attorney to settle a claim.


text:
    A94A1220.
    JAMES v. TYLER.
    (451 SE2d 506)
   Ruffin, Judge.

Agnes James brought suit against Shannon L. Tyler for damages sustained in a rear-end automobile collision. The jury returned a verdict in favor of Tyler, and James’s motion for a new trial was denied. James appeals.

At the time of the accident, James and another individual were passengers in a car driven by Geraldine Bush. As Bush was approaching an intersection, Tyler’s car struck Bush’s car in the rear. It was raining at the time of the accident, and the investigating officer reported the wet street was a contributing factor to the collision. The officer reported no damage to either vehicle, and no complaints of injury by James or the other passengers.

James and the other individuals in Bush’s car testified Bush had her turn signal on and was still moving at the time of the collision. Tyler and the passenger in her car testified they did not see a turn signal, and the accident occurred after Bush’s car stopped suddenly while approaching the intersection.

Later that afternoon, James went to the emergency room. The doctor who examined James testified he found only that she had some tenderness on her right side, prescribed medication and put her on one day’s rest. Approximately three weeks later, James was examined by a chiropractor. The chiropractor testified he found neck and back injuries that resulted from the accident and treated James for those injuries for approximately the next three months.

1. In her first enumeration of error, James contends the verdict was contrary to the evidence and law. We disagree. Although there was conflicting testimony concerning the use of a turn signal and whether Bush stopped suddenly, “an appellate court does not weigh the evidence, but determines sufficiency. [Cit.]” Locke v. Vonalt, 189 Ga. App. 783, 785 (1) (377 SE2d 696) (1989). “ ‘In rear-end collision cases the liability, degree of liability, or lack of liability on the part of any involved driver depends upon a factual resolution of the issues of diligence, negligence and proximate cause. The history of the decisions of the Court of Appeals in this type of case since 1965 convinces us that these issues should be resolved ... by the jury and not by trial and appellate judges.’ [Cit.]” Taylor v. McClendon, 205 Ga. App. 390, 391 (2) (422 SE2d 440) (1992). Moreover, “[o]n appeal an appellate court is bound to construe the evidence in support of the verdict and judgment, and if there is some evidence to support the verdict we will uphold the judgment. [Cit.]” Locke, 189 Ga. App. at 785. Since there is sufficient evidence to support the verdict, we find no error.

2. In her second enumeration of error, James contends the trial court erred in commenting on evidence and restricting her cross-examination of Tyler regarding statements made to the police officer at the scene of the accident regarding her speed at the time of the collision. The record reflects that during the cross-examination, the trial judge instructed James’s attorney to move on after a series of repetitious questions. James did not object to the trial court’s instruction or move for mistrial based on these contentions. “[F]ailure to object in the trial court leaves nothing for this court to review on appeal. [Cit.]” Stacey v. Caldwell, 186 Ga. App. 293, 297 (4) (367 SE2d 73) (1988); accord Provost v. Gwinnett County, 199 Ga. App. 713 (4) (405 SE2d 754) (1991).

3. In her third enumeration of error, James contends the trial court erred in allowing Tyler’s attorney to read portions of Bush’s deposition to the jury. During Tyler’s cross-examination of Bush, Bush testified it was sprinkling rain at the time of the accident. Tyler’s attorney called to Bush’s attention that she testified during her deposition it was raining heavily at the time. Before Tyler rested her case, the trial judge gave her attorney permission to read into evidence that portion of Bush’s deposition in which she stated it was raining heavily. James alleges it was harmful error to allow Tyler to use this deposition to “take the edge off the cross-examination of the defendant’s witness.”

OCGA § 9-11-32 (a) (1) provides “[a]ny deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.” Further, OCGA § 9-11-32 (a) (4) provides “[t]he deposition of a witness, whether or not a party, taken upon oral examination, may be used in the discretion of the trial judge, even though the witness is available to testify in person at the trial.” “ ‘A decision by the trial court to admit into evidence a deposition taken upon oral examination where the witness is available shall be reversed only when the party objecting to the admission of the deposition shows that the trial court abused its discretion.’ [Cit.] Appellant here has failed to make a showing of such abuse.” Sheats v. Tri-Cities Hosp. Auth., 167 Ga. App. 122, 123 (306 SE2d 75) (1983).

4. James asserts the court erred in refusing to give her requested charge on negligence per se. “ ‘It is axiomatic that a jury charge need not be given in the exact language requested if the charge as given clearly covers the circumstances of the case. All that is necessary, provided the requested charge accurately states the relevant principles of law, is that these principles be fairly given to the jury in the general charge. When it can be determined that the charge actually given conveys correctly the intent of the law and is so framed as to be applied with understanding to the fact situation, denial of a request for a specific charge is not reversible error.’ .... [Cit.]” City of Dalton v. Smith, 210 Ga. App. 858, 859 (3) (437 SE2d 827) (1993). In this case the court did not err in refusing to give James’s requested charge because the charge actually given regarding negligence per se sufficiently stated the relevant principles of law. Id. at 859-860.

5. James also asserts the court erred in failing to give charges on the rules of the road and the failure to keep a proper lookout. At the conclusion of the charge conference, James restated the general contents of the two charges and asserted, “[w]e ask that that should have been given, and we think it’s proper. . . . We think that the charge was an accurate statement of the law and that it applies in this case.”

Decided December 5, 1994.

L. B. Kent, for appellant.

Self, Mullins, Robinson & Marchetti, Richard A. Marchetti, for appellee.

OCGA § 5-5-24 (a) provides that “[e]xcept as otherwise provided in this Code section, in all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection. . . . Objection need not be made with the particularity formerly required of assignments of error and need only be as reasonably definite as the circumstances will permit.” In Kittles v. Kittles, 187 Ga. App. 537 (370 SE2d 803) (1988), objections almost identical to the ones in the instant case were reviewed by this court under OCGA § 5-5-24 (a). There it was held the objections failed to meet the requirements of the statute. See id. at 539. We reach the same conclusion here.

“The mere exception to a failure to give a numbered request to charge fails to meet the requirement of OCGA § 5-5-24 (a). To be reviewable the objection must be unmistakable in its purport in directing the attention of the trial court to the claimed error and must point out distinctly the portion of the charge challenged. The grounds of error urged must be stated with sufficient particularity to leave no doubt as to . . . what the specific ground of challenge is . . . and the correction needed to cure the error.” (Citations and punctuation omitted.) Id. at 539-540.

James’s assertions at trial that the requested charges were accurate, applicable and proper are far too vague to allow review in this case. Accordingly, we find no error.

6. Finally, James asserts as error the court’s failure to charge that the negligence of the host driver of the plaintiff was not imputable to the plaintiff. However, such a charge was never requested, much less objected to. “Unless the failure to give a charge is harmful as a matter of law to the extent that a gross miscarriage of justice is about to result, the absence of a written request is a waiver of the right to complain on appeal. [Cit.] We find no likelihood in the present case of a miscarriage of justice, and no merit in [James’s] enumeration of error on that issue.” Gaines v. Crompton & Knowles Corp., 190 Ga. App. 863, 868 (12) (380 SE2d 498) (1989).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A1416.
    APPAREL RESOURCES INTERNATIONAL, LTD. et al. v. AMERSIG SOUTHEAST, INC.
    (451 SE2d 113)
   Ruffin, Judge.

Amersig Southeast, Inc. (“Amersig”), a printing company, sued Apparel Resources International, Ltd. (“Apparel Resources”), a foreign corporation, and Lynn Heller, a New York resident, for breach of contract after Apparel Resources failed to pay Amersig for catalogues it printed. Although Heller was not a party to the contract, she executed a personal guarantee in the event Apparel Resources failed to pay Amersig.

The contract contained a forum selection clause providing that claims arising out of the contract “shall be litigated in courts located within the State. [Apparel Resources] by execution of this Agreement hereby consents to the jurisdiction of any local, state, or federal court located within the State, and designates the Secretary of State of the State as its agent for service of process.” The “State” is defined in the contract as “the state in which [Amersig’s] plant is located.” The catalogues were printed at Amersig’s plant located in DeKalb County, Georgia. The personal guarantee executed by Heller contained a choice of laws provision stating Heller “agrees that this guaranty shall be governed by and construed and enforced according to the laws of the State of Georgia.” In their answers, both Apparel Resources and Heller denied the jurisdiction of the State Court of DeKalb County. In addition, Apparel Resources filed a motion to dismiss for lack of personal jurisdiction. The trial court, finding jurisdiction was proper, denied the motion, and after trial, at which both defendants failed to appear, entered judgment in favor of Amersig. Apparel Resources and Heller appeal the denial of the motion and judgment.

1. Apparel Resources and Heller assert the judgment is void because the trial court did not have personal jurisdiction over them.

In finding it had jurisdiction over Apparel Resources, the trial court relied on Lightsey v. Nalley Equip. Leasing, Ltd., 209 Ga. App. 73 (432 SE2d 673) (1993), where this court held that “contractual clauses providing advance consent to the jurisdiction of a court are valid and enforceable. [Cit.]” Id. at 74. While Apparel Resources agrees Lightsey is controlling, it argues that if under such a contractual clause a party merely “consents” to the personal jurisdiction and does not expressly “waive” that jurisdiction, the clause is invalid. In support of its argument, Apparel Resources relies on OCGA § 15-1-2 which provides “[p]arties may not give jurisdiction to a court by consent, express or implied, as to the person or subject matter of an action. However, lack of jurisdiction of the person may be waived, insofar as the rights of the parties are concerned. . . .” (Emphasis supplied.)

In Dix v. Dix, 132 Ga. 630 (64 SE 790) (1909) our Supreme Court stated with regard to OCGA § 15-1-2 that “[i]t is rudimentary law that parties can not, by consent express or implied, give jurisdiction to a court; that as to the subject-matter the court is limited by the powers conferred upon it by law, and can not be given additional power or jurisdiction by consent of the parties or by waiver; but that as to the jurisdiction of the person, the point may generally be waived, so far as the rights of the parties are concerned. . . . [Cit.]” (Emphasis supplied.) Id. at 632. “Since the adoption of the code the distinction between a privilege or right which a person may waive as against himself, though not against third parties, and an inability to confer jurisdiction over subject-matter upon a court, by consent or waiver, has been generally recognized and applied.” (Emphasis supplied.) Id. at 632-633.

The intent of the legislature, and that expressed by the court in Dix, was to prohibit parties from conferring jurisdiction upon a court where none exists by law. Subject-matter jurisdiction is established by our laws and there is nothing parties to a suit can do to give a court jurisdiction over a matter that has not been conferred by law. See Williams v. Goss, 211 Ga. App. 195, 198 (438 SE2d 670) (1993); see also Champion v. Rakes, 155 Ga. App. 134, 135 (270 SE2d 272) (1980). Personal jurisdiction is also governed by our laws, and parties cannot agree to allow a court to extend its reach and exercise its powers over people beyond its territorial limits that is not otherwise permitted by law. See OCGA §§ 50-2-21; 9-10-91. However, by allowing a party to consensually bring itself within those territorial limits, and within the personal jurisdiction of a court, a waiver of personal jurisdiction is appropriate without violating the laws of this state. This is the legislative intent behind OCGA § 15-1-2 and that Code section prohibits a party from consensually subjecting itself to the jurisdiction of a court.

“ ‘It is clear under Georgia law that personal jurisdiction, unlike subject matter jurisdiction, may be waived. The United States Supreme Court has recognized a variety of legal arrangements as representative of consent to personal jurisdiction. Advance consent to the jurisdiction of a particular court in a contract is one such arrangement.’ . . . [Cit.]” Regency Mall Assoc. v. G. W.’s Restaurant, 213 Ga. App. 225 (444 SE2d 572) (1994). “This result also enhances the freedom to contract. The freedom of individuals to contract is part of the basic liberties enjoyed by the citizens of this state and should not be interfered with in the absence of clear necessity.” (Citations and punctuation omitted.) Harry S. Peterson Co. v. Nat. Union Fire Ins. Co., 209 Ga. App. 585, 591 (3) (434 SE2d 778) (1993).

In the instant case we find the forum selection clause unambiguous and susceptible to but one interpretation. Apparel Resources, by executing the printing contract, consented to being subject to the jurisdiction of a court where the printing plant was located in the event a dispute arose concerning the contract. This court in Regency Mall recognized the validity of such advance consent and we see no reason why a different rule should apply here. Because the uncontroverted testimony at trial established that the printing plant was located in DeKalb County, Georgia, Apparel Resources waived the defense of lack of personal jurisdiction in a court located there. Accordingly, we find the trial court did have personal jurisdiction over Apparel Resources and the judgment as against that party is not void.

However, we do find the trial court erred in exercising jurisdiction over Heller. The choice of laws provision in her personal guarantee “ ‘standing alone would be insufficient to confer jurisdiction. . . .’ ” Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892, 894 (1) (380 SE2d 303) (1989) (quoting Burger King Corp. v. Rudzewicz, 471 U. S. 462, 482 (105 SC 2174, 85 LE2d 528) (1985)). Moreover, that provision together with her other contacts with this state did not establish a basis for the trial court’s long arm jurisdiction under OCGA § 9-10-91.

OCGA § 9-10-91 (1) provides that courts of this state may exercise personal jurisdiction over any nonresident if that nonresident “[transacts any business within this state.” “This has been interpreted to mean that purposeful acts must have been performed by the defendant to tie it to the State, and mere telephone or mail contact with an out-of-state defendant, or even the defendant’s visits to this state, is insufficient to establish the purposeful activity with Georgia required by the Long Arm statute. The United States Supreme Court has held that an individual’s contract with an out-of-state party alone cannot automatically establish sufficient minimum contacts in the other party’s home forum, and that the contract is ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction. It is these factors — prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing — that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.” (Citations and punctuation omitted.) Mayacamas Corp., 190 Ga. App. at 893.

The facts in the case before us show that Heller executed a personal guaranty, governed by Georgia law, in favor of Amersig’s predecessor in interest, Foote and Davies, located in Atlanta, Georgia. While there was testimony that Amersig acquired Foote and Davies prior to execution of the guaranty, there is nothing in the record to indicate where, or to whom Heller should send payment in the event of default. Heller stated in the guaranty that her home address was located in New York. Heller’s execution of the guaranty was witnessed by a New York notary public, indicating the guaranty was executed in New York. There is no evidence in the record showing with whom Heller negotiated the guaranty, other than the name of Amersig’s New York salesperson listed on the printing proposal attached to the guaranty. Neither is there any evidence showing where the negotiations took place, that Heller ever came to Georgia regarding the guaranty, made telephone calls or sent mail to Amersig’s Georgia plant, or received telephone calls or mail from that plant. Under these facts we do not find Heller purposefully established the minimum contacts with the forum state to justify the trial court’s long arm jurisdiction over her. Accordingly, we find the trial court did not have jurisdiction over Heller and the judgment against her is void. See Bethco, Inc. v. Cinema ‘N’ Drafthouse Intl., 204 Ga. App. 143, 146 (418 SE2d 467) (1992).

Decided December 5, 1994.

Roberts, Isaf & Summers, W. Dennis Summers, Robert H. Stansfield, for appellants.

Alembik, Fine & Callner, G. Michael Banick, for appellee.

2. “In light of the decision reached in Division 1 of this opinion, the other enumerations of error raised by [Apparel Resources and Heller in their appeal] are rendered moot and we need not address them. [Cit.]” Mayacamas Corp., 190 Ga. App. at 895.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Blackburn, J., concur.