author: Ruffin, Judge.

text:
    A97A0045.
    HANOVER CREDIT CORPORATION v. DATAMATX, INC.
    (485 SE2d 571)
   Ruffin, Judge.

Datamatx, Inc. (“Datamatx”) sued Hanover Credit Corporation (“Hanover”) for breach of contract. Hanover answered and counterclaimed for misrepresentation, deceptive billing, deceptive collection, mail fraud, and damaging business relations with third parties. The trial court granted Datamatx’s motions for a directed verdict on Hanover’s counterclaims and on Hanover’s liability under the contract, but denied Datamatx’s motion for a directed verdict as to the amount owed. In its sole enumeration of error, Hanover asserts the trial court erred in granting Datamatx’s motion for a directed verdict as to Hanover’s liability. For reasons which follow, we affirm.

A motion for directed verdict is proper where “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict[.]” OCGA § 9-11-50 (a). “In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the ‘any evidence’ test.” (Citations and punctuation omitted.) Grubb v. Woodglenn Properties, 220 Ga. App. 902, 903 (1) (470 SE2d 455) (1996).

Hanover contends the trial court erred in granting Datamatx’s motion for a directed verdict as to liability under the contract because material issues of fact remained regarding whether Hanover was relieved from liability under the contract by Datamatx’s failure to meet its contractual obligations. Hanover alleged it should not be held responsible under the contract because Datamatx failed to meet its contractual obligations in the following areas: (1) provide certain American Express software; (2) provide two free programming hours per month; and (3) remove informational comments from invoices as requested and discontinue billing after services were terminated. Datamatx alleged that Hanover was liable under the contract because it utilized Datamatx’s services and that Hanover’s claims of nonperformance merely entitled Hanover to a possible setoff in the amount owed.

The trial court granted Datamatx’s motion for a directed verdict as to Hanover’s liability, finding that the terms of the contract were not disputed and that services were rendered under the contract. However, the trial court denied Datamatx’s motion for a directed verdict as to the amount owed, finding that this amount was in dispute.

While Hanover’s sole enumeration on appeal relies on the contractual provisions, “the contract is not a part of the record before us on appeal, and there exists no evidence of record from which this court may determine the contents and nature of the contract. ‘When a portion of the record is not before this court which is necessary for our determination of one or more of the appellate issues raised, an affirmance as to those issues must result.’ [Cits.]” Ga. Receivables v. Williams, 218 Ga. App. 313, 314 (2) (461 SE2d 280) (1995). Accordingly, we affirm the trial court’s decision granting Datamatx’s motion for a directed verdict as to Hanover’s liability.

Judgment affirmed.

Birdsong, P. J, and Eldridge, J, concur.

Decided April 3, 1997.

Before Judge Bonner.

Wallace, Shannon & Francis, VernitiaA. Shannon, for appellant.

Michael J. Davis, Jr., for appellee.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A97A0062.
    PANEK v. THE STATE.
    (485 SE2d 580)
   Pope, Presiding Judge.

A jury convicted defendant John Raymond Panek of felony theft by shoplifting. Defendant appeals his conviction, contending that the trial court erred in failing to grant his motion for a directed verdict. We affirm.

The evidence shows that defendant went to a Home Depot store in Clayton County, Georgia. At the store, a security officer observed defendant cutting the uniform product code (“UPC”) off of a box containing a scroll saw that was priced at $88. Defendant then cut the UPC off of a box containing an arc welder, priced at $192.50. He took the UPC from the scroll saw box and placed it where the arc welder box’s UPC had been, securing it with tape. Defendant then tore up the real UPC for the arc welder and put the arc welder in a shopping cart, surrounding its box with lumber. After checking out of the store, defendant was detained by security and subsequently was arrested for shoplifting.

Under OCGA § 16-8-14 (a), “[a] person commits the offense of theft by shoplifting when he alone or in concert with another person, with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, does any of the following: (1) Conceals or takes possession of the goods or merchandise of any store or retail establishment; (2) Alters the price tag or other price marking on goods or merchandise of any store or retail establishment; (3) Transfers the goods or merchandise of any store or retail establishment from one container to another; (4) Interchanges the label or price tag from one item of merchandise with a label or price tag for another item of merchandise; or (5) Wrongfully causes the amount paid to be less than the merchant’s stated price for the merchandise.” In the instant case, the State’s accusation charged defendant with committing the act of shoplifting by “altering] the price tag on one (1) welder, merchandise of Home Depot, a retail establishment, said price being in excess of $100.00.” Thus, the charge was based on a violation of OCGA § 16-8-14 (a) (2). Defendant, however, argues that the evidence adduced at trial does not show that he altered any price tag, but instead that he interchanged price tags in violation of OCGA § 16-8-14 (a) (4). Consequently, based on Nesmith v. State, 183 Ga. App. 529 (1) (359 SE2d 421) (1987), defendant claims there was a fatal variance between the allegation found in the State’s accusation against him and the proof presented at trial and, as a result, that he was entitled to a directed verdict. We cannot agree.

In Nesmith, we acknowledged the distinction between “altering” a price tag in violation of OCGA § 16-8-14 (a) (2) and “interchanging” a price tag in violation of OCGA § 16-8-14 (a) (4). Id. at 530 (1). In doing so, we determined that in the context of OCGA § 16-8-14, alter means “to cause to become different in some particular characteristic[,] without changing into something else.” (Citation and punctuation omitted.) Id. Interchange, however, means “putting each of two things in the place of the other.” (Citation and punctuation omitted.) Id. Based on the above definitions, we concluded that there was a fatal variance between the allegata and probata in Nesmith because the State had accused Nesmith of altering price tags, whereas the evidence showed only that he had replaced price tags found on certain items with tags taken from lower priced items. Id. at 529 (1).

In the case at bar, no such fatal variance exists. Contrary to defendant’s assertion, the arc welder’s UPC did not constitute the entire price tag for the welder. Instead, the welder’s price tag consisted of a highlighted portion of the arc welder’s box that contained not only the UPC, but also other information about the product. Consequently, the arc welder’s UPC made up only a part of the whole price tag. Therefore, cutting off the welder’s UPC and replacing it with the UPC from the scroll saw did not amount to the interchange of one price tag for another as contemplated by OCGA § 16-8-14 (a) (4). In light of the definitions set forth above, however, defendant’s actions in cutting the UPC off the arc welder’s box, destroying that UPC and replacing it with the UPC for the scroll saw, did constitute alteration of the arc welder’s price tag. This is because defendant’s actions, made the original price tag different than it had been by causing it to contain conflicting product/pricing information, but did not change the tag itself into something else.

Accordingly, we conclude that defendant was not entitled to a directed verdict based on his claim that a fatal variance existed between the State’s allegations against him and the proof adduced at trial. And, based on the evidence produced at trial, we further conclude that any rational juror could have found defendant guilty of felony theft by shoplifting under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

Decided April 3, 1997.

Before Judge Simmons.

Melnick, Moore & Elliott, Larry M. Melnick, for appellant.

Robert E. Keller, District Attorney, Lisa S. Estes, Per B. Normark, Assistant District Attorneys, for appellee.


text:
    A97A0261.
    MORRELL v. STATE OF GEORGIA.
    (486 SE2d 611)
    Decided April 3, 1997.
    Before Judge Sorrells.

      Wayne L. Burnaine, for appellant.

      Alan A. Cook, District Attorney, Anne M. Templeton, Assistant District Attorney, for appellee.
   Pope, Presiding Judge.

Jimmy Morrell appeals from the trial court’s order striking his answer to a forfeiture complaint. Because Morrell’s answer failed to comply with the strict pleading requirements of OCGA § 16-13-49 (o) (3), we affirm.

An answer stating a claim to property subject to forfeiture must specifically set forth, among other things, the date, identity of transferor, and circumstances of the claimant’s acquisition of his interest in the property. See OCGA § 16-13-49 (o) (3) (D); State v. Alford, 264 Ga. 243, 245 (2) (a) (444 SE2d 76) (1994); Howard v. State, 223 Ga. App. 323 (477 SE2d 605) (1996); Jarrett v. State, 220 Ga. App. 559, 560 (1) (472 SE2d 315) (1996). In this case, the property in question is a large number of guns. Morrell did not list each item and describe how he got it. He did not even break them down into groups and describe how he got them. Instead, he simply stated that he had obtained all the guns through lawful means — through inheritance or purchase, or as gifts. This general information, without any dates, the identity of any of the transferors, or any other circumstances of his acquisition of the guns, is insufficient. Compare Knodel v. State, 222 Ga. App. 514, 516 (474 SE2d 700) (1996); Williams v. State, 222 Ga. App. 270 (474 SE2d 98) (1996). Accordingly, Morrell’s answer was properly stricken on this ground, and we need not address the alternative grounds the trial court relied on.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Johnson, Judge.

text:
    A97A0307.
    BOSTON v. THE STATE.
    (485 SE2d 578)
   Johnson, Judge.

Jessie Boston was convicted of violating two counts of the Georgia Controlled Substances Act, possession of more than one ounce of marijuana and dispensing marijuana. He appeals from the judgment entered on the guilty verdict returned by the jury.

1. Boston contends the evidence presented at trial was insufficient to support his convictions. On appeal, the presumption of innocence no longer prevails; we view the evidence in the light most favorable to the verdict and do not speculate which evidence the jury chose to believe or disbelieve. Gurlaskie v. State, 196 Ga. App. 794 (1) (397 SE2d 66) (1990). Viewing the evidence in this light, investigators from the Bartow County Sheriff’s Office were looking for two teenage girls reported as runaways when they received information that the girls had been seen at Boston’s residence. The officers testified they heard movement inside the home, but that no one responded to a knock on the front door. As one of the officers walked around the residence he saw a footprint on top of an air conditioning unit located beneath a partially opened window. A neighbor told the officers where Boston worked and they called him, explaining that they believed the girls were inside his home. Boston left work and when he arrived at his home gave the officers permission to search his home for the girls. When they entered the home, the officers saw remnants of a marijuana cigarette, and a hemostat commonly used to smoke marijuana cigarettes, in an ashtray which was in plain view. After placing Boston under arrest, Boston told the officers they would find a bag of marijuana in a chair, which they did. Another bag of marijuana was found in one of the socks Boston was wearing. A forensic chemist testified that analysis confirmed that the substance was marijuana, and the aggregate weight of the seized drug was 38.5 grams or 1.3 ounces. The two girls, who were located later in the day, told police that they had previously entered Boston’s home through a window and had smoked some of his marijuana while he was at work. They also testified that they had been to Boston’s home on other occasions and had smoked marijuana with him. This evidence is sufficient to enable a rational trier of fact to find Boston guilty of possessing and dispensing marijuana. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In response to a request from the jury for an additional instruction defining probable cause to arrest, the court gave the following recharge: “The test of probable cause is whether the facts known to the person would justify a person of reasonable caution in believing that an offense has been committed; and this requires merely a probability, less than a certainty, but more than a mere suspicion or possibility.” Boston complains that this definition was not sufficiently detailed and should have explained that the information relied on to arrive at probable cause must have been legally obtained. “It is well established that when the jury, after having received complete instructions on the law applicable to the case, returns to the courtroom and requests additional instruction on a particular point, the trial court may, in its discretion, either recharge the jury in full or confine the instruction to the particular point suggested by the jury’s inquiry.” (Citations and punctuation omitted.) Williams v. State, 210 Ga. App. 357, 358 (2) (436 SE2d 228) (1993). The trial court did not abuse its discretion here in tailoring the recharge to the specific question posed by the jury.

Decided April 3, 1997.

Before Judge Pope.

Neel & Smith, Barry S. Planey, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

3. Boston also contends the trial court erred in denying his motion to suppress evidence which was obtained by illegal entry and search of his residence by law enforcement officers. Although the trial court’s order denying Boston’s motion to suppress refers to consideration of oral testimony and argument, no transcript of a suppression hearing appears in the record. Absent a transcript of the suppression hearing, we must assume as a matter of law that the evidence presented supported the findings of the court. Brown v. State, 190 Ga. App. 324, 326 (2) (378 SE2d 908) (1989); Santone v. State, 187 Ga. App. 789, 790 (1) (371 SE2d 428) (1988).

Judgment affirmed.

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


author: McMURRAY, Presiding Judge.

text:
    A97A0364.
    In the Interest of R. A., a child.
    (486 SE2d 363)
   McMURRAY, Presiding Judge.

The Cobb County Department of Family & Children Services petitioned the Juvenile Court of Cobb County to terminate the parental rights of B. A., the natural mother, in the minor female, R. A., alleging that the child had been abandoned by the biological father whose identity and whereabouts are unknown; that temporary legal custody to R. A. was already in the Department; and that B. A. was unable to care for the child because B. A. was incarcerated in the Cobb County jail “on arrest for possession of cocaine and intent to solicit prostitution.” The evidence, viewed to uphold the juvenile court’s determination, reveals that R. A. was born “August 9th, 1994.” Margaret Bakalini, the last caseworker assigned to this case, confirmed that she had never done a home visit or a home study of R. A., and further confirmed that a prior caseworker, who did make a home visit, “did [not] recommend that [R. A.] be taken immediately out of that environment. . . [because] she actually found that [B. A.] was providing a stable home and residence for [R. A.].” At the time the Department took temporary custody of R. A., the child bore no “markings of any form of abuse [and appeared to be] well fed and nourished.” During B. A.’s incarceration, “she kept in contact with [Margaret Bakalini by writing to her] a couple of times.” B. A. “was accepted into a [drug treatment] program, [but] child care was an issue . . . [and B. A.] quit that program.”

The Department had no certified copies of any of B. A.’s previous prostitution convictions in New York State (alleged to be as many as 30). After her release, B. A. “plan[ned] on getting a job and saving money to get a two-bedroom apartment, and also, on [her] days off, looking for family counseling. . . .” During her present incarceration, B. A. was “working on [her] G.E.D. [She was] trying to get [her] high school diploma [to] get a good paying job.” While in jail, she was learning the trade “in custodial maintenance.” B. A. further testified that now “is the first time [she had] ever had support in [her] life,” including help from the paternal grandmother of B. A.’s two older children.

Victoria Scott, a retired social worker from the Atlanta University School of Social Work, became “very interested] in trying to help her [B. A.] accomplish some of the things that she wants to accomplish.” Scott “know[s] just about every resource there is in Atlanta and the surrounding areas because [she] taught students who are now working in the Cobb County area. [Scott offered to] call on [her] former students[, as well as] people that [she had] worked with. . . .” Scott believed that “[B. A.] can get to the point where she can take care of her children.” Scott acknowledged that what “she [B. A.] has not been able to do in the past is to make a plan and execute it. People have made plans for her, but they have not helped her execute that plan, and that is the kind of supervision that she [B. A.] needs.” Scott had arranged for B. A. and her children to enter Cascade House, a transitional facility, upon B. A.’s release. There, B. A. would be monitored frequently and undergo drug counseling.

The juvenile court terminated the parental rights of the biological father of R. A., but declined to terminate the parental rights of B. A. in R. A., concluding the Department had not presented sufficient evidence to warrant termination since B. A. “presented witnesses who are prepared to assist her on her release, and has for the first time, a support system available on her release. She [B. A.] adequately provided for said child prior to her recent incarceration and has [a plan for her care of the child] after . . . release.”

Decided April 3, 1997.

Before Judge Grubbs.

Childs & Knight, James K. Knight, Jr., for appellant.

Through her guardian ad litem, the minor R. A. appeals from the judgment of the juvenile court. Held,:

In her sole enumeration of error, the minor R. A. contends the juvenile court abused its discretion by failing to terminate B. A.’s parental rights to the child R. A., arguing the sufficiency of the evidence.

“ ‘There is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship.’ [Cit.]” Jones v. Dept. of Human Resources, 168 Ga. App. 915, 916 (1) (310 SE2d 753). “The primary consideration in a proceeding to terminate parental rights is the welfare of the child. [Cits.] In determining how the interest of the child is best served, the juvenile court is vested with a broad discretion which will not be controlled in the absence of manifest abuse. [Cit.]” In re Creech, 139 Ga. App. 210, 211 (3) (228 SE2d 198). “ ‘ “The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met.” (Cit.)’ ” In the Interest of L. F., 203 Ga. App. 522, 523 (417 SE2d 344).

“ ‘(E)vidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in [her] natural child; clear and convincing evidence of present unfitness is required.’ Blackburn v. Blackburn, [249 Ga. 689, 692 (292 SE2d 821)]; Wright v. Hanson, 248 Ga. 523 (2) (283 SE2d 882) (1981).” (Emphasis in original.) In re J. C. P., 167 Ga. App. 572, 574 (307 SE2d 1). Imprisonment alone does not automatically authorize a termination of parental rights premised upon parental unfitness; there must be circumstances in aggravation. In the Interest of L. F., 203 Ga. App. 522, supra; In the Interest of S. K. L., 199 Ga. App. 731, 733 (405 SE2d 903); In the Interest of H. L. T, 164 Ga. App. 517, 519 (298 SE2d 33). In the case sub judice, the juvenile court as the trier of fact was authorized to conclude, based upon the conflicting evidence introduced and the absence of certain competent evidence, that the Department failed to prove by clear and convincing evidence that R. A. is deprived due to parental unfitness or that such deprivation is likely to continue, to the detriment of the child. OCGA § 15-11-81 (b) (4). “We find no abuse of discretion under the circumstances of this case.” In re Creech, 139 Ga. App. 210, 211 (3), supra.

Judgment affirmed.

Beasley and Smith, JJ., concur.

Sanders B. Deen, William E. Brewer, Rhonda M. Breaux, for appellee.


author: Eldridge, Judge.

text:
    A97A0433.
    WATSON v. SIERRA CONTRACTING CORPORATION.
    (485 SE2d 563)
   Eldridge, Judge.

Watson at North Point, Inc. (Watson, Inc.) is a Georgia corporation that owned and operated a retail store at North Point Mall under the registered trade name “Mon Petit Chou,” which was not registered until October 7, 1993. Between 1987 and 1994, Mon Petit Chou, Inc. operated a retail store at Phipps Plaza; Susan W. Watson was the president of Mon Petit Chou, Inc., which was incorporated in 1985. In 1987, appellee Sierra Contracting Corporation entered into a contract to build out the retail space for Mon Petit Chou, Inc. at Phipps Plaza; the contract to do the work had been negotiated with appellee on behalf of Mon Petit Chou, Inc. by appellant as corporate president, and payment was made by such corporation.

In April 1993, appellant Watson was approached by the landlord at Phipps Plaza about Mon Petit Chou, Inc. opening another store at their new mall at North Point Mall, because Mon Petit Chou, Inc. was a tenant of theirs at Phipps. Appellant became president of Watson, Inc. after its incorporation on June 18, 1993. On June 22, 1993, Watson, Inc. was entered on the lease for the retail space in North Point Mall in place of Mon Petit Chou, Inc. and the lease was executed by appellant as president of Watson, Inc.

Appellant testified that, early in 1993, probably on or before April 18, 1993, and prior to executing the North Point Mall lease on June 22, 1993, in her corporate officer capacity for Watson, Inc., she began discussions with Larry Wolfe, representing appellee, regarding the build-out of the retail space at North Point Mall once the lease was signed. The meeting took place approximately six to eight months prior to the opening of the North Point store on October 20, 1993. Wolfe suggested to appellant that the architectural firm Holland Architects, PC. be used to design the layout, and a contract was signed with Holland Architects, PC. to design the layout. However, the contract was entered into between Mon Petit Chou, Inc. and Holland Architects, PC. Appellant testified that, during this initial meeting with Wolfe and the architect, Steve Holland, appellant explained to Wolfe the corporation’s financial restraints of $50,000 to be paid by the landlord for the build-out and the time constraints of the lease as set by the landlord upon the corporate tenant, Watson, Inc. Appellant did not specifically identify the corporation as Watson, Inc. To receive $25,000 of the $50,000 build-out fund from the landlord, the tenant had to open by a certain date or such funds would not be available under the lease; no agreement was reached at this meeting.

The record demonstrates that, in total, the discussions and arrangements between Wolfe and appellant were very vague. Appellant testified that no agreement was reached as to the essentials of the contract: the specific work to be performed, the price for the work, or the performance and completion date for the work. Wolfe indicated to appellant early in the discussions that the build-out would probably exceed the landlord construction allowance of $50,000 and be around $70,000. Appellant had expected to pay the excess $20,000 from a bank loan she was unable to obtain after making a loan application to two or three banks. Wolfe, Holland, and appellant met two or three times to come to some agreement as to the nature and extent of the work to be performed. However vague the discussion, appellee was authorized to proceed to do the build-out work on the retail space, and on April 18, 1993, a contract for architectural services was entered into between Mon Petit Chou, Inc., executed by appellant, and Holland Architects, PC. to design the layout for the “Mon Petit Chou Store at North Point Mall . . . interior design for build-out of a new retail space.”

According to appellant’s testimony, during the initial meeting with Wolfe, appellant told him that there would be a new corporate entity, that she was starting a “whole new business,” and that there would be a new corporate address. However, appellant never told either the architect or Wolfe at the first meeting that she was acting on behalf of Watson, Inc., because appellant assumed that Wolfe would know that she was representing the business and not herself individually.

The plans and details for the build-out were not completed until August 24, 1993, when appellee began work. On September 27, 1993, appellee made a draw request of $40,299 for all the work performed from August 24, 1993 through September 27, 1993; Watson, Inc. paid appellee $25,000 by a counter check, dated October 31, 1993, and drawn on the Watson, Inc. bank account because no corporate checks had been printed at that time and the counter check did not have the corporate name and had only appellant’s signature. Watson, Inc. was not incorporated until June 18, 1993. Appellant, in her own name, also purchased a chandelier from Georgia Lighting, which was installed in the North Point store.

Appellant denied that she individually entered into any express contract with appellee or that appellee ever gave to her any indication that appellee believed that appellant was acting in an individual capacity. All appellee’s correspondence to appellant was sent to the business address of Watson, Inc., although it was not addressed to the corporation but to its registered trade name, Mon Petit Chou, which was not registered until October 7, 1993. Such correspondence was dated September 27, 1993, and November 15, 1993. Appellant never paid appellee individually; only Watson, Inc. paid appellee.

On March 18, 1994, appellee sued Watson, Inc. d/b/a Mon Petit Chou for the unpaid balance of the labor, costs, and materials for the build-out of the retail space at North Point Mall in the amount of $70,250 for work done between August 24, 1993, and December 7, 1993, on an open account under OCGA § 7-4-16, quantum meruit under OCGA § 9-2-7, as well as costs of litigation under OCGA § 13-6-11. Watson, Inc. went into default by not responding. Appellee moved on January 23, 1995, to amend and to add as additional parties appellant and her husband contending that they were the parties with whom oral contracts had been entered into by appellee. By order filed on February 28, 1995, the additional parties were added. On July 24, 1995, appellee filed a motion for partial summary judgment against appellant, seeking a determination as a matter of law that appellant hired appellee to perform construction services; that appellee performed the services; and that appellant is indebted to appellee for such services. On November 21, 1995, the trial court granted partial summary judgment for appellee and against appellant. Notice of appeal was filed on November 21, 1995. The appeal was docketed on October 16, 1996.

On November 26,1996, appellee filed a motion for penalty for filing a frivolous appeal. Such petition is hereby denied by this Court.

The sole enumeration of error is that the trial court erred in granting the motion for partial summary judgment for Sierra Contracting Corporation and against Susan Watson as to personal liability for the debts of Watson, Inc.

(a) Appellant’s personal liability. “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the non-moving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

“The rule in Georgia is that the testimony of a party who offers [herself] as a witness in [her] own behalf at trial ‘ “is to be construed most strongly against [her] when it is self-contradictory, vague or equivocal.” ’ Douglas v. Sumner, 213 Ga. 82, 85 (97 SE2d 122) (1957); W & A Railroad Co. v. Evans, 96 Ga. 481 (23 SE 494) (1895). Where the favorable portion of a party’s self-contradictory testimony is the only evidence of [her] right to recover or of [her] defense, the opposing party is entitled to a directed verdict. Douglas v. Sumner, supra. . . . Early on the courts determined that if on summary judgment a party offered self-contradictory testimony on the dispositive issue in the case, and the more favorable portion of [her] testimony was the only evidence of [her] right to a verdict in [her] favor, the trial court must construe the contradictory testimony against [her]. This being so, the opposing party would be entitled to summary judgment. The courts reasoned that this is the correct result because if the case went to trial under the same evidence, the party offering self-contradictory testimony would have a verdict directed against [her]. Dykes v. Hammock, 116 Ga. App. 389 (157 SE2d 524) (1967). Once the trial court has eliminated the favorable portions of the contradictory testimony, it must take all testimony on motion for summary judgment ‘as it then stands, and construe it in favor of the party opposing the motion in determining whether a summary judgment should be granted.’ Chandler v. Gately, 119 Ga. App. 513, 514 (167 SE2d 697) (1969). The courts concluded that this rule must necessarily be applied to summary judgment proceedings, otherwise, ‘any opposing party may, by the simple device of filing conflicting affidavits, get the motion denied. The temptations to perjury are greater in this situation than in a jury trial. . . . The conflict can easily be avoided. A party knows what [she] has sworn. If [she] has discovered error, it can be explained in [her] affidavit.’ [Id.] at 523. . . . Burnette Ford[, Inc.] v. Hayes, [227 Ga. 551 (181 SE2d 866) (1971)], states the general rule that on motion for summary judgment all evidence is to be construed against the movant. . . . We conclude therefore that both Chambers v. C & S [Nat. Bank], 242 Ga. 498 (249 SE2d 214) (1978), which applied the contradictory testimony rule to a motion for summary judgment, and Combs v. Adair Mortgage Co., 245 Ga. 296 (264 SE2d 226) (1980), which distinguished Chambers from Burnette Ford, were correctly decided. Accord King v. Brasington, [252 Ga. 109 (312 SE2d 111) (1984)].” (Footnote omitted.) Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28-30 (1) (343 SE2d 680) (1986).

To determine if testimony is contradictory, “[t]he standard to be applied is: (1) determine whether the testimony of the party is contradictory, (2) if a reasonable explanation is offered for the contradiction, that testimony will not be construed against the party, (3) the burden is on the party giving the testimony to offer a reasonable explanation, and (4) whether this has been done is an issue of law for the trial judge.” Thacker v. Matthews Tuxedo, 183 Ga. App. 474, 475 (359 SE2d 231) (1987). It must be inferred that the trial court went through such analysis prior to granting summary judgment where the conflict goes to the essential facts supporting appellant’s defense, no explanation for the conflict appears in the record, and the trial court took the least favorable testimony of the appellant that was in conflict.

Appellant’s testimony is conflicting as to what she told Wolfe and Holland during the first meeting on April 18, 1993, and when other information was allegedly imparted. For example, appellant testified that she told Wolfe and Holland that she was acting not in her personal capacity but in a representative capacity for Watson, Inc., even though Watson, Inc. did not come into legal existence until June 18, 1993. Other conflicts include her explanation of why, in early April 1993, the landlord at Phipps Plaza, who was building North Point Mall, wanted Mon Petit Chou, Inc. to open a store there even though the lease in the name of Mon Petit Chou, Inc. and the architect contract with Mon Petit Chou, Inc. were really contracts with Watson, Inc. under the registered trade name Mon Petit Chou, a trade name which was not even registered until October 7, 1993. Finally, appellant asserted that Wolfe knew that Watson, Inc. was the legal entity because appellee cashed the counter check with no corporate name or address on it which was drawn on the Watson, Inc. account or because letters to appellant addressed to Mon Petit Chou at 3500 Peachtree Road indicated an awareness of this address as Watson, Inc.’s corporate address, as well as the corporate address of Mon Petit Chou, Inc. While appellant’s most favorable testimony created a material issue of fact, appellant’s denial that she acted on her own behalf or on behalf of any entity other than Watson, Inc. directly conflicts with her other testimony describing what she signed and what she did. The trial court was correct in construing her testimony to show that she had never revealed or disclosed that she was acting as an agent for an undisclosed principal, Watson at North Point, Inc. d/b/a Mon Petit Chou, which did not come into legal existence until June 18, 1993, and did not register the trade name until October 7, 1993, long after the meetings and negotiations had taken place. Appellant produced no evidence that she disclosed to appellee or the architect after June 18, 1993, that they were dealing with Watson, Inc., which thereafter had corporate existence. While the actual work performed by appellee occurred after August 24, 1993, and continued until December 7, 1993 at the North Point Mall store location leased by Watson, Inc., the appellant has failed to rebut appellee’s evidence that appellee was ever made aware of the identity of the beneficiary of such work.

The proper legal analysis of the case sub judice is under agency. Under OCGA § 10-6-54, a party dealing with the agent of another, undisclosed principal has an action either against the principal or the agent. Kingsberry Homes v. Findley, 242 Ga. 362, 364 (2) (249 SE2d 51) (1978).

“In order to avoid personal liability an agent is under a duty to disclose the fact of his agency and the identity of his principal, and one who deals with an agent who fails to disclose his principal may at his election recover from either the agent or the principal. The disclosure of an agency is not complete for the purpose of relieving the agent from personal liability unless it embraces the name of the principal.” (Citations and punctuation omitted.) Reed v. Intl. Security Svc., 215 Ga. App. 60 (449 SE2d 888) (1994); see also Collins v. Brayson Supply Co., 157 Ga. App. 438 (278 SE2d 87) (1981); Dinkler Mgmt. Corp. v. Stein, 115 Ga. App. 586, 590 (155 SE2d 442) (1967); Brown-Wright Hotel Supply Corp. v. Bagen, 112 Ga. App. 300 (145 SE2d 294) (1965); Roberts v. Burnette, 72 Ga. App. 775 (35 SE2d 201) (1945).

Appellant, having failed to disclose the identity of her principal throughout the transaction, may be liable instead of the principal at the election of the party vested with the cause of action. See Kingsberry Homes v. Findley, supra at 364. “The contract liability of a principal and his agent is not joint, and after election to proceed against one, the other cannot be held.” Id. at 365; see also Lippincott & Co. v. Behre, 122 Ga. 543, hn. 3, 545 (50 SE 467) (1905); Dinkler Mgmt. Corp. v. Stein, supra at 590; Washburn Storage Co. v. Elliott, 93 Ga. App. 456 (2) (92 SE2d 28) (1956); Roberts v. Burnette, supra at 777; Willingham, Wright & Covington v. Glover, 28 Ga. App. 394, 396 (3) (111 SE 206) (1922). An election occurs not when the principal and agent are sued but when final judgment is taken against either; until there exists a final judgment against either the principal or the agent, no irrevocable election has been made. See generally Lippincott & Co. v. Behre, supra at 546-547. Had appellee taken a default judgment against Watson, Inc., then an election would have been made and no action could be brought against appellant; however, since no judgment has been taken against Watson, Inc., appellant is subject to suit individually.

OCGA § 14-2-204 states that “[a]ll persons purporting to act as or on behalf of a corporation, knowing there was no incorporation under this chapter, are jointly and severally liable for all liabilities created while so acting,” and bases such liability on a modification and codification of the common law rules regarding agency. See Weir v. Kirby Constr. Co., 213 Ga. App. 832, 833-834 (1) (446 SE2d 186) (1994); see also Wells v. Fay & Egan Co., 143 Ga. 732, 733 (1) (85 SE 873) (1915). Appellant knew that the corporate charter had not been issued until June 18, 1993, because the execution page of the lease shows her signing the lease July 23, 1993, as president for Mon Petit Chou, Inc., but changing the execution to June 22, 1993, four days after the incorporation of Watson, Inc., to president of Watson, Inc., which clearly demonstrates knowledge of the date of incorporation. However, appellant entered into no binding contracts prior to the incorporation, although appellant told appellee to go ahead with the build-out, which was not a contract but contract formation that never came to fruition and remained too vague and indefinite to constitute an enforceable contract. Thus, efforts to formulate a contract which never came into existence created no potential liability under OCGA § 14-2-204. See Satellite Syndicated Systems v. Henderson, 162 Ga. App. 453 (291 SE2d 749) (1982).

The trial court did not err in granting partial summary judgment and finding that appellant could be found individually liable for the construction work performed by appellee. However, the trial court by summary judgment could not find liability under any theory of recovery, because there were disputed material issues of fact under each theory.

(b) Action on open account. An action on open account is a simplified pleading procedure where a party can recover what he was justly and equitably entitled to without regard to a special agreement to pay such amount for goods or services as they were reasonably worth when there exists no dispute as to the amount due or the goods or services received. Johnson v. Quin, 52 Ga. 485 (1874). An action on open account may be brought for materials furnished and work performed. Southern Express Co. v. Hunnicutt & Turner, 5 Ga. App. 262 (63 SE 26) (1908). However, if there is a dispute as to assent to the services or to acceptance of the work done or as to what work was to be performed and the cost, then an action on open account is not a proper procedure. Lawson v. O’Kelley, 81 Ga. App. 883, 885 (1) (60 SE2d 380) (1950); Craig v. Augusta Roofing & Metal Works, 78 Ga. App. 514, 515 (1) (51 SE2d 565) (1949). A suit on account must be based either on an express or an implied contract. Devine v. Geiger, 100 Ga. App. 245 (110 SE2d 687) (1959).

In the case sub judice, there exists no express contract. On the other hand, there may be evidence that can establish an implied contract with appellant because although there never was an agreement as to the terms, compensation, or work, there appears to be acceptance of the work; however, the acceptance of the work performed appears to be for the benefit of another. Furthermore, appellant never agreed to be personally bound and never had a meeting of the minds as to an agreement. See Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assoc., 250 Ga. 391, 395 (297 SE2d 733) (1982); Jack V. Heard Contractors v. A. L. Adams Constr. Co., 155 Ga. App. 409, 412 (271 SE2d 222) (1980), overruled on other grounds, Southeast Ceramics v. Klem, 156 Ga. App. 636 (275 SE2d 723) (1980); Fonda Corp. v. Southern Sprinkler Co., 144 Ga. App. 287, 290 (1) (241 SE2d 256) (1977). Thus, to the extent that the trial judge found liability on an action on open account, the trial court erred because there remains disputed issues of material fact under such theory of liability for jury determination.

(c) Action for quantum meruit or unjust enrichment. Under OCGA § 9-2-7, this Code section provides an action for quantum meruit where services were rendered and materials were furnished, and which were accepted by and valuable to the recipient; acceptance and benefit conferred upon the recipient gives rise to the presumption of a legal obligation to pay for the value. Quantum meruit is not available when there is an express contract; however, if the contract is void, is repudiated, or can only be implied, then quantum meruit will allow a recovery if the work or service was accepted and if it had value to the recipient. See Stowers v. Hall, 159 Ga. App. 501, 502 (3) (283 SE2d 714) (1981); Brumby v. Smith & Plaster Co. of Ga., 123 Ga. App. 443, 444 (1) (181 SE2d 303) (1971).

Even if no express or implied contract arose between the parties, an obligation to pay arises upon the theory of unjust enrichment where a benefit has been conferred upon the party sought to be held liable for the value, which is analogous to quantum meruit in that the duty to pay arises out of the receipt of a benefit. See White v. Arthur Enterprises, 219 Ga. App. 124 (464 SE2d 225) (1995); Mabry v. Pelton, 208 Ga. App. 891 (432 SE2d 588) (1993); Regional Pacesetters v. Halpern Enterprises, 165 Ga. App. 777 (300 SE2d 180) (1983); City of Commerce v. Duncan & Godfrey, Inc., 157 Ga. App. 337 (277 SE2d 266) (1981). A party cannot receive and retain the benefit of another’s labor without the duty to pay for the reasonable value of such work. See Henry v. Moss, 99 Ga. App. 623 (109 SE2d 313) (1959); Woodruff v. Trost, 73 Ga. App. 608 (37 SE2d 425) (1946).

Value of services is not to be determined from the perspective of the party rendering the services and materials, but must be determined from the perspective of the recipient to determine to what extent the party was benefited or enriched by such services; otherwise, ineffective, defective, or worthless services could create liability for the recipient. The value of services from the perspective of the recipient is uniquely that of opinion and is for jury determination as to value, if any. Williams v. Claussen-Lawrence Constr. Co., 120 Ga. App. 190 (169 SE2d 692) (1969); see also Stowers v. Hall, supra at 502; Fonda Corp. v. Southern Sprinkler Co., supra at 292; Mitchell & Pickering v. Louis Isaacson, Inc., 139 Ga. App. 733 (229 SE2d 535) (1976); Pembroke Steel Co. v. Technical Sales Assoc., 138 Ga. App. 744 (227 SE2d 491) (1976); Brumby v. Smith & Plaster Co. of Ga., supra at 444.

Appellee has available as alternative theories of liability to an action on open account, quantum meruit if there is an implied contract proven or unjust enrichment if there is no implied contract. Each theory must be proven before there is liability by appellant.

To the extent the trial court determined liability under the theory of quantum meruit as a matter of law, the trial court erred because whether or not appellant received any benefit from appellee’s work and is liable for such payment is a question of fact for the jury.

Decided April 3, 1997.

Before Judge Alexander.

Holland & Knight, Elizabeth C. Helm, Caroline W. Johnson, for appellant.

Ashenden, Flynn & Gottlieb, Jon A. Gottlieb, for appellee.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., concurs. Ruffin, J, concurs in judgment only.


text:
    A97A0464.
    In the Interest of D. B. G. et al., children.
    (485 SE2d 575)
   Pope, Presiding Judge.

Edward Herbst “Ned” Fullerton, the biological father of D. B. G. and C. M. G., appeals from a juvenile court order terminating his parental rights. Concluding that the lower court’s ruling was supported by clear and convincing evidence, we affirm.

The father pled guilty to murdering the mother, and is currently serving a life sentence. He will first be eligible for parole in September 2009, when the children will be 16 and 19. The father murdered the mother by shooting her, and he had threatened her with a gun on previous occasions. On at least one of these occasions, the children were present. The father had a wife and other children in a nearby city, and kept the existence of the mother, D. B. G. and C. M. G. a secret. Since the mother was killed, the children have been living with their maternal uncle and his wife, who would like to adopt them.

1. This is clear and convincing evidence of parental misconduct, and also this is sufficient to support the court’s determination that termination of the father’s parental rights is in the best interest of the children. See OCGA § 15-11-81 (a). Although “the mere fact that a parent kills another parent does not in and of itself result in the automatic forfeiture of the parent’s parental rights to the child as a matter of law ...[,] ‘(t)he requisite malice necessarily shown by guilt of the murder of one’s spouse is sufficient to imply a moral unfitness to terminate the parental relationship.’ ” (Citation omitted.) In the Interest of A. M. S., 208 Ga. App. 328, 330-331 (3) (430 SE2d 626) (1993); see also Heath v. McGuire, 167 Ga. App. 489, 492 (3) (306 SE2d 741) (1983).

Decided April 3, 1997.

Before Judge Ellerbee.

John K. Edwards, Jr., for appellant.

Barham & Dover, Wilton E. Stone, Jr., for appellee.

2. Additionally, the biological father received notice of these proceedings and failed to file a petition to legitimate the children. Thus, termination of his parental rights was authorized under OCGA § 15-11-83 (e), (g), and (h) as well.

3. The father also contends the trial court erred in considering a report of the guardian ad litem, since the father did not receive a copy of this report. There is no copy of the report in the record, but it appears from the lower court’s order that the report simply recommended that the children continue to stay with the uncle — a recommendation the father agreed with anyway — without addressing the question of termination of parental rights. In any case, the father has failed to show how he was harmed by the court’s consideration of the report without ensuring that he had a copy.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A97A0967.
    In the Interest of C. W., a child.
    (485 SE2d 561)
   Eldridge, Judge.

Appellant C. W. challenges the juvenile court’s determination that he was delinquent due to his alleged receipt of stolen goods, as well as the court’s sentence thereon. Having reviewed the record, we agree with appellant that the evidence was insufficient to find C. W. guilty as charged and reverse the adjudication of delinquency.

The undisputed facts are as follows: on or about August 24,1996, a 1992 Chevrolet Astrovan automobile was stolen from a mobile home park in Spalding County. The van was subsequently utilized in a drive-by shooting on August 28, 1996. Later on the same day, Corporal Bradshaw of the Spalding County Sheriff’s Department observed the van and recognized it as being similar to one that was reported stolen, as well as one that was reported as being involved in a drive-by shooting a few hours earlier. Corporal Bradshaw followed the van and could see four to five black males inside; he could not determine who was driving. While Corporal Bradshaw was following the van, the van abruptly turned into a driveway, where two or three men jumped out of the van and ran from the scene. Without the driver, the van, which was left in the “drive” mode, rolled backwards into the patrol car. Then, two young men, one of whom was the appellant, attempted to exit the van through the passenger door but were caught by Corporal Bradshaw before they could flee and were arrested at the scene.

The arresting officer was never able to determine who the driver had been or who had been in control of the stolen vehicle. The car keys were never found. When questioned by an investigator after receiving Miranda warnings, C. W. stated that he had only been along for a ride and did not know that the van was stolen. At the hearing, appellant’s co-defendant, D. L. S., testified that C. W. had only gone for a ride in the van and did not have control of the vehicle at any time.

The juveniles were charged with theft by receiving stolen property because they had been in the stolen vehicle. They were tried in Spalding County Juvenile Court on October 23, 1996. The juvenile court judge determined that C. W. was delinquent and sentenced him to 90 days in custody. Appellant timely appealed, asserting that the adjudication of delinquency was contrary to the law and to the evidence. Held:

Under OCGA § 16-8-7 (a), a person commits the offense of theft by receiving stolen property when he (1) “receives, disposes of, or retains stolen property,” and (2) knew or should have known that the property was stolen. See Cunningham v. State, 222 Ga. App. 740 (475 SE2d 924) (1996). Further, “ ‘[receiving’ means acquiring possession or control” over the property. OCGA § 16-8-7; see also Floyd v. State, 207 Ga. App. 275 (427 SE2d 605) (1993) (appellant retained a truck when the keys were found in his trousers); Preston v. State, 183 Ga. App. 20 (357 SE2d 825) (1987) (appellant possessed a car when he entered and attempted to start the vehicle). Mere proximity to stolen property is insufficient to establish possession or control. Williamson v. State, 134 Ga. App. 329, 331 (214 SE2d 415) (1975). In a similar vein, riding in a stolen van or automobile as a passenger does not support a conviction for theft by receiving unless the accused also, at some point, acquires possession of or controls the vehicle, i.e., has “ ‘the right to exercise power over a corporeal thing,’ [Cit.].” Hurston v. State, 202 Ga. App. 311, 312-313 (414 SE2d 303) (1991) (appellant exerted control over a vehicle for the purpose of OCGA § 16-8-7 when he was left alone in the car with the vehicle running when the driver briefly went into a convenience store), or there exists some evidence, either direct or circumstantial, that the accused was a party to the crime by aiding and abetting its commission. Sanders v. State, 204 Ga. App. 545, 546 (1) (419 SE2d 759) (1992) (the accused fled from police and had property from the stolen vehicle on his person when caught). Therefore, one cannot be convicted of the crime of receiving stolen property absent exercise of control over the stolen goods, or if one is a passenger, intentionally aiding and abetting the commission of the crime under OCGA § 16-2-20 (b). See Sanders v. State, supra at 546.

Decided April 3, 1997.

Before Judge Cook.

Mullins & Whalen, Harold A. Sturdivant, for appellant.

William T. McBroom III, District Attorney, James E. Sherrill, Assistant District Attorney, for appellee.

In the case sub judice, no evidence was presented by the State that the appellant ever retained, disposed of, acquired possession of, or controlled the stolen van, nor was any evidence presented of any affirmative act by appellant that rose to the level of aiding and abetting the crime. The undisputed evidence indicates that the appellant got into the van while it was driven by an acquaintance, known as “Rat,” and that Rat previously had acquired the van from a “Geek Monster,” i.e., a crack addict, who apparently traded the van for cocaine. Appellant denied ever driving the van, an assertion supported by his co-defendant, D. L. S. In addition, there was no evidence that appellant ever exercised control over the van, i.e., determined where it would go, whom it would transport, etc, or that the appellant otherwise actively aided and abetted the crime. All evidence indicates that appellant was simply along for the ride. While appellant admitted being in the van while another passenger shot at an acquaintance in a drive-by shooting, appellant was not charged with being an accessory to that offense. Therefore, lacking evidence that the appellant ever possessed or controlled the van under OCGA § 16-8-7 (a) or affirmatively acted as a party to the crime under OCGA § 16-2-20 (b), his adjudication of delinquency for the offense of theft by receiving stolen property must be reversed.

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A97A0975.
    MacKENZIE v. SAV-A-LOT FOOD STORE.
    (485 SE2d 559)
   Eldridge, Judge.

The Superior Court of Putnam County reversed the findings of the full State Board of Workers’ Compensation upholding the decision of an administrative law judge (“AL J”) which awarded attorney fees to appellant Tammy MacKenzie and levied civil penalties against appellee Sav-A-Lot Food Store (“Sav-A-Lot”); the superior court affirmed the award of workers’ compensation benefits to appellant. We granted appellant’s application for discretionary review, and outline for dispositive purposes the procedural posture in which this case comes to us.

Pursuant to OCGA § 34-9-105, on June 20, 1996, Sav-A-Lot filed in the superior court a notice appealing the State Board’s affirmance of the ALJ’s award. A hearing was held on July 29, 1996, within the 60 days provided by statute. OCGA § 34-9-105 (b). At the conclusion of the hearing, the court indicated that its ruling would attempt to affirm in part and reverse in part the Board’s decision, because “both your clients need some relief.” Thirty-six days later, the court filed an order which reflected its limited oral ruling from the bench. The judgment line of the order read “SO ORDERED on the 29th day of July, 1996. EXECUTED this 3rd day of September, 1996.” The clerk of court’s stamp shows that the order was filed on September 3, 1996. Held:

1. The Workers’ Compensation Act, OCGA § 34-9-1 et seq., is a legislative creation. See Aetna Cas. &c. Co. v. Davis, 253 Ga. 376 (320 SE2d 368) (1984). In complete derogation of common law, the provisions of the act must be strictly construed as the act derives its own authority and power, as well as the authority and power it confers upon others, solely from the provisions the legislature has crafted. See Bright v. Nimmo, 253 Ga. 378 (320 SE2d 365) (1984). Thus, reflective of the constitutionally mandated separation of powers, beyond the Act’s specific legislative provisions, it has no independent judicial existence so as to impart jurisdiction, cause of action, or remedy upon any entity. See id. at 379, 381.

Under the act pursuant to OCGA § 34-9-105 (b), the legislature conferred a limited jurisdiction on the superior courts to review the decisions of the State Board and provides, in part, “the decision of the board shall be considered affirmed by operation of law if no order of the court dispositive of the issues on appeal has been entered within 20 days of the date of the hearing.” See also Dept. of Indus. Relations v. Travelers Ins. Co., 177 Ga. 669 (170 SE 883) (1933). The public policy rationale underlying this particular provision is clearly grounded in the constitutional directive to afford to the people court rules “which shall provide for the speedy, efficient, and inexpensive resolution of disputes and prosecutions.” 1983 Ga. Const., Art. VI, Sec. IX, Par. I. To this end, a superior court’s order disposing of the issues must be entered within 20 days of the hearing, entry being, under our law, the filing with the clerk of a signed order or judgment. OCGA § 9-11-58. What a judge orally declares is no judgment until it has been put in writing and entered as such. Dunagan v. Sims, 119 Ga. App. 765 (168 SE2d 914) (1969). The failure to timely enter an'order under OCGA § 34-9-105 (b) results in the superior court’s loss of subject matter jurisdiction under the act and the subsequent affirmation of the State Board’s award by operation of law. See Buschel v. Kysor/Warren, 213 Ga. App. 91, 93 (444 SE2d 105) (1994).

Applying these principles to the case sub judice, the trial court’s failure to enter its order until 36 days after the hearing is not remedied by a judgment line that reflects the limited oral declaration of judgment made at the hearing. The order, filed untimely, is a nullity as the superior court had lost jurisdiction to enter such order when the specified time limit authorizing jurisdiction was exceeded. Accordingly, the decision of the State Board was affirmed by operation of law, and the order of the superior court must be reversed. Buschel, supra at 93.

Decided April 3, 1997.

Before Judge Cline.

Curtis W. Miller, for appellant.

Martin L. Fierman, for appellee.

2. Our resolution in Division 1 makes unnecessary the consideration of appellant’s second enumeration of error.

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.