author: Andrews, Judge.

text:
    A92A1599.
    PETERSON v. P. C. TOWERS, L. P.
    (426 SE2d 243)
   Andrews, Judge.

In 1987, Peterson rented 15,060 square feet of office space at Peachtree Center under a commercial lease agreement for a term of five years ending October 31, 1992. Alleging that Peterson defaulted by failing to pay rent due under the lease, P. C. Towers exercised its right under the lease to terminate the lease, and brought a dispossessory proceeding in March 1990, to have Peterson’s business removed from the premises. In the dispossessory action, P. C. Towers also sought to collect approximately three months past due rent in the amount of $62,099.22, accelerated rent payable for the remaining term of the lease in the amount of $787,418.46, together with late charges, interest and attorney fees claimed due under the lease provisions. Peterson appeals from an order of the trial court granting summary judgment in favor of P. C. Towers.

When P. C. Towers filed the dispossessory action in March 1990, Peterson filed an answer interposing various defenses, but conceding that P. C. Towers was entitled to issuance of a writ of possession. The trial court issued a writ of possession, and Peterson’s business was subsequently evicted in April 1990. The remaining issues in the dispossessory action dealing with amounts due under the lease were ordered set for trial. When the dispossessory action was filed, no claim was made for accelerated rent, but in March 1991, prior to entry of a pre-trial order, P. C. Towers amended the action by adding a claim for the present value of accelerated rent.

1. Peterson contends the added claim was untimely, and the trial court erred by considering it. The amendment to the action was made prior to entry of a pre-trial order pursuant to OCGA § 9-11-15 (a), and the trial court did not err in considering the added claim. Peterson v. American Intl. &c. Co., 203 Ga. App. 745, 746-747 (417 SE2d 402) (1992).

2. Peterson argues that P. C. Towers lost the right to collect post-eviction rent when it terminated the lease for non-payment of rent by a letter dated February 1990, and subsequently evicted the business pursuant to the dispossessory action. Generally, when a landlord evicts a tenant and takes possession of the premises, the lease is terminated and the right to claim rent which accrues after eviction is extinguished. Bentley-Kessinger v. Jones, 186 Ga. App. 466, 467 (367 SE2d 317) (1988). However, the “parties to a lease agreement may contract in advance to hold the lessee liable for rent even after an eviction, deducting therefrom only the amounts recovered by the lessor from reletting the premises ... [if such an agreement is] premised on the existence of an explicit and detailed provision in the lease which clearly and unequivocally expressed the parties’ intention to hold the lessee responsible for after-accrued rent even should an eviction take place.” (Citation and punctuation omitted.) Id. at 467-468; Hardin v. Macon Mall, 169 Ga. App. 793 (315 SE2d 4) (1984).

The present lease provided that in the event the lease is terminated by the tenant’s default, including non-payment of rent, “Landlord may, at its option, declare the entire amount of the rent which would become due and payable during the remainder of the term of this lease to be due and payable immediately upon ten days written notice to Tenant of Landlord’s intent to accelerate said payments for the unexpired term; and with reduction to present cash value of said payments based upon a discount rate of twelve percent (12%) as the present value factor, in which event Tenant agrees to pay the same at once, together with all rents theretofore due, at the office of the Landlord, Atlanta, Georgia, provided, however, that such payments shall not constitute a penalty or forfeiture or liquidated damages, but shall merely constitute payment in advance of the rent for the remainder of the said term. Upon making such payment, Tenant shall receive from Landlord all rents received by Landlord from other tenants on account of said Premises during the term of this Lease, provided, however, that the monies to which the Tenant shall so become entitled shall in no event exceed the entire amount payable by Tenant to Landlord under the preceding sentence of this subparagraph.” This language was a clear expression of the parties’ intention that after eviction the tenant may, at the landlord’s option, be held responsible for future accruing rent less amounts received from reletting of the premises. Notice of the landlord’s intention to exercise this option was given, and termination of the lease and eviction of the tenant did not extinguish the landlord’s right to collect after-accruing rent. Hardin, supra.

3. Peterson contends the acceleration clause quoted in Division 2 constituted an unenforceable penalty. The lease states the acceleration clause is not intended to be a penalty or liquidated damages, but rather an advance payment of rent by the tenant. It is clear that the sum representing accelerated rent is not an advance payment of rent by the tenant because the lease was terminated, and the landlord took possession of the premises. Acceleration of rent under these circumstances clearly constitutes an agreement to pay the landlord in possession of the premises a sum representing damages ensuing from a breach and termination of the lease. As such, it either qualifies as an enforceable liquidated damages provision, or it fails as a penalty. Jones v. Clark, 147 Ga. App. 657, 658-659 (249 SE2d 619) (1978); Glen Oak v. Henderson, 258 Ga. 455, 458-459 (369 SE2d 736) (1988) (acceleration clause in lease would be void as a penalty if it fails to meet any of the criteria for qualification as liquidated damages).

Determining whether such a clause constitutes an enforceable liquidated damages provision or an unenforceable penalty is a question of law for the court. Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222) (1989). To qualify as an enforceable liquidated damages provision three factors must be present: “First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and, third, the sum stipulated must be a reasonable pre-estimate of the probable loss.” (Citations and punctuation omitted.) Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976); Jones, supra at 658-659. On summary judgment, P. C. Towers, as movant, “has the burden of showing that as to the three prongs of Southeastern, supra, no genuine issue of material fact exists, . . .” Liberty Life Ins. Co., supra at 809.

We first address the requirement that the injury caused by the breach must be difficult or impossible of accurate estimation. The measure of damages in an action seeking to recover in advance for the full remaining term of a breached lease is the difference between what the tenant would have had to pay in rent for the balance of the term, and the fair rental value of the premises for the balance of the term. Szabo Assoc. v. Peachtree-Piedmont Assoc., 141 Ga. App. 654-655 (234 SE2d 119) (1977). Although the amount of damage for a breach of the lease is easily stated in theory, and easily applied when damages are sought at the end of the lease term, a concrete estimation of damage is not always easily made when the action seeks to collect immediate lump sum damages in the form of accelerated rent on a lease breached with a substantial amount of time remaining in the term. In the latter case, determining the fair market value of the balance of the lease term may require a difficult assessment of future market conditions to calculate the future rental value of the premises, and the probability of reletting for the full remaining term. Compare Jones, supra. The estimation of damages resulting from the breach of the lease in this case with over a year and a half of the term remaining was of sufficient difficulty to satisfy this factor for qualification as an enforceable liquidated damages provision.

To qualify as enforceable liquidated damages, the sums sought as accelerated rent under the lease must be a reasonable estimate of actual damages. Under the lease provisions, the landlord was entitled to terminate the lease, evict the tenant, and then collect in advance rent reduced to present value which would have been payable to the end of the lease term. These provisions give the landlord the benefit of both present possession of the premises, and the present value of all future rent. Reduction of the accelerated rent to present value is a factor tending to establish that the accelerated rent sum is a reasonable estimate of probable loss. See Adams v. D & D Leasing Co., 191 Ga. App. 121, 123-124 (381 SE2d 94) (1989). However, both possession of the premises and a present lump sum award of future rent without any calculation of damages based on the future rental value of the premises, and the likelihood of reletting, provides P. C. Towers with payment potentially bearing no reasonable relation to actual damages. See Jones, supra at 659. Actual damages at the time of the breach may be stated as the difference between the rent which would have been payable by the tenant under the lease, and the market value of the premises for the remainder of the original lease term. See Szabo, supra. Accordingly, in order to make a reasonable estimate of the difference between the rent due in the lease and the actual rental value of the premises for the remaining term, this calculation must be conditioned on an assessment of future market conditions for the premises to account for future rental value, and the probability of reletting the premises for all or part of the remaining term. The present lease fails to account for these factors in determining the sum sought as liquidated damages.

Decided December 3, 1992.

Vincent, Chorey, Taylor & Feil, Otto F. Feil III, for appellant.

Wiles & Wiles, John J. Wiles, A. Frank Settlemyer, for appellee.

For the above reasons, the acceleration provision was in the nature of an unenforceable penalty, rather than a provision for liquidated damages. See Jones, supra at 659; see generally 19 EGL, Landlord and Tenant, § 59, pp. 244-245. Accordingly, the trial court erred in granting summary judgment in favor of P. C. Towers for accelerated rent in the amount of $787,418.46.

4. We find no error in the trial court’s award of summary judgment in favor of P. C. Towers for amounts claimed due under the lease for past due rent ($62,099.22), late charges ($7,451.90), interest ($4,370.76), attorney fees ($6,647.00), plus cost of court. Peterson does not challenge the validity of these claims or the amounts awarded, but contends summary judgment was inappropriate because he was owed sums under the lease for leasehold improvements in excess of these amounts. There is no merit in this contention. An allowance for leasehold improvements was made available to Peterson under the lease, but it is undisputed that no such improvements were made. Peterson was not entitled to receive the allowance in the absence of any improvements.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A92A2244.
    In the Interest of T. M. C., a child.
    (426 SE2d 247)
    Decided December 3, 1992.

      McGinn, Webb, Warner, Lindsey, Daniel, Lundy & Slepian, R.

      Dolores Daniel, for appellant.
   Pope, Judge.

Appellant, natural father of T. M. C., filed a motion and amended motion to modify an order of the juvenile court providing for the temporary custody of his minor daughter. Following the first day of the hearing on appellant’s motion, it was discovered that the tape used to record the proceedings had malfunctioned and that a portion of appellant’s testimony was unrecorded. Appellant, relying on OCGA § 15-11-28 (b), moved the court for a mistrial. The trial court denied appellant’s motion and certified its ruling for immediate review. We granted appellant’s application for interlocutory appeal, and appellant timely filed his notice of appeal to this court. Held:

OCGA § 15-11-28 (b) provides that a hearing before a juvenile court “shall” be recorded by stenographic notes, electronic, mechanical or other appropriate means “[u]nless waived by the juvenile and his parent, guardian, or attorney. . . .” Appellant did not waive his right in this case, and the juvenile court sought to comply with the provisions of OCGA § 15-11-28 by tape recording the proceedings. The question then is whether a mistrial should have been declared once it was discovered that a portion of the proceedings was unrecorded. Although we agree with the appellee that a failure to record all the proceedings would not necessarily require that the entire proceeding be declared void, it was nevertheless incumbent upon the juvenile court to ensure that a complete record was made. Consequently, once it was discovered that some of the testimony had not been recorded, the juvenile court should have taken affirmative steps to ensure that a record of the omitted testimony was made, by having the parties stipulate to the testimony, by allowing the witness to be re-examined or by any other method which would have ensured that a complete record of the proceedings was made. However, because the problem was not remedied at the time it was first discovered, and due to the passage of time and the break in the proceedings, we do not believe that it would be practical simply to re-commence the hearing at this time. Consequently, appellant is entitled to a new hearing on his modification petition, and to have such hearing recorded in its entirety as mandated by OCGA § 15-11-28. Accord In re R. L. M., 171 Ga. App. 940, 941 (1) (321 SE2d 435) (1984); cf. In re T. E. D., 166 Ga. App. 322 (303 SE2d 777) (1983).

Judgment reversed with direction.

Carley, P. J’., and Johnson, J., concur.

Bischoff & White, James E. Bischoff, Margot S. Roberts, for appellee.


author: Birdsong, Presiding Judge.

text:
    A92A0911.
    HICKS v. DOE.
    (426 SE2d 174)
   Birdsong, Presiding Judge.

Don Dennis Hicks appeals from a judgment, based upon the jury’s verdict in favor of Hicks’ insurance company, Southern General, in a “John Doe” uninsured motorist action under OCGA § 33-7-11. Hicks alleged a “John Doe” vehicle crossed over the centerline, struck his vehicle, and ran him off the road causing the damages he sought in this action. Because there was no corroborating eyewitness, Hicks relied upon proof of physical contact to establish his claim. See OCGA § 33-7-11 (b) (2).

Hicks alleges that the trial court erred by permitting Southern General to call a witness for purposes of cross-examination that he had listed as a “may call” witness in the pretrial order, by allowing Southern General to question this witness about insurance claims the witness had pending against Southern General, and by charging the jury on fraud and negligence when the evidence did not support such charges. Held:

1. Hicks’ first enumeration of error contends the trial court erred by allowing Southern General to call and cross-examine a witness, Jeffers, about his role in perfecting and preparing Hicks’ case and about Jeffers’ uninsured motorist claims against Southern General. Hicks contends this was error because Jeffers was Southern General’s witness and Southern General did not establish that Jeffers’ cross-examination was authorized by OCGA § 24-9-81. Hicks contends a non-party witness may be called for cross-examination only if the person is one for whose immediate benefit the suit is prosecuted or defended, or the witness is an agent of a party or the agent of any person for whose immediate benefit the suit is prosecuted or defended, or the witness is an official or agent of a corporation when the corporation is a party or for whose benefit the suit is prosecuted or defended. Southern General, however, contends the cross-examination was authorized under OCGA § 24-9-63: “Leading questions are generally allowed only [on] cross-examination. However, the court may exercise discretion in granting the right to the party calling the witness and in refusing it to the opposite party when, from the conduct of the witness or other reason, justice shall require it.”

Review of the record shows Jeffers was listed as a “may have present” witness on Hicks’ witness list, and that Hicks did not call Jeffers as a witness. The record also shows, however, that one of Hicks’ attorneys withdrew as counsel and testified about events that included Jeffers’ participation. Further, the transcript shows Jeffers had important involvement in the case. He visited Hicks in the hospital shortly after the accident, recommended his attorney to Hicks, and Hicks promptly retained this attorney. Within days Jeffers visited the scene of the accident alone and took a roll of film of the scene that he gave to the attorney, but the film did not turn out. The next day, the attorney went to the scene with Jeffers and Jeffers showed the attorney certain tire tracks. Further, Jeffers showed the attorney broken glass and other debris on the road. Later, Jeffers accompanied the attorney to the location of Hicks’ car and Jeffers “matched” the debris he found at the scene of the accident with a broken taillight on Hicks’ car.

Southern General contends that because of Jeffers’ relationship with Hicks and because of his involvement in the lawsuit, it was entitled to call him as a witness and cross-examine him about these events and about John Doe uninsured motorist claims he had made. While Jeffers’ activities in this case and his relationship with Hicks do not fall neatly within OCGA § 24-9-81, trial courts are authorized to permit cross-examination of one’s own witness “when, from the conduct of the witness or other reason, justice shall require it.” OCGA § 24-9-63. Further, trial courts exercise wide discretion in the admission of evidence and in whether to allow leading questions (Spencer v. State, 260 Ga. 640, 646 (398 SE2d 179)), and reversible error only occurs when trial courts abuse that discretion to the extent that there is prejudice and injury. Blue Cross of Ga. v. Whatley, 180 Ga. App. 93, 96 (348 SE2d 459). Moreover, such an abuse of discretion will not constitute reversible error “ ‘unless palpably unfair and prejudicial to the complaining party.’ [Cits.]” Clary Appliance &c. Center v. Butler, 139 Ga. App. 233, 235 (228 SE2d 211). Under the circumstances of this appeal, we find no abuse of discretion.

Jeffers played a key part in this case. He found items at the scene that Hicks later claimed were important to the case, and even matched those items to Hicks’ car. The significance of this information is illustrated by the fact that one of his attorneys withdrew as counsel to testify about what Jeffers had done. Moreover, we find no evidence Hicks was prejudiced by allowing Jeffers’ cross-examination.

2. Hicks also contends the trial court erred by allowing Southern General to examine Jeffers about his own John Doe uninsured motorist insurance claims because these claims were not relevant to Hicks’ John Doe uninsured motorist claim against Southern General. See OCGA § 24-9-84. Questions concerning the admission of evidence are committed to the discretion of the trial court (Kilpatrick v. Foster, 185 Ga. App. 453, 457 (364 SE2d 588)), and unless the trial court has abused its discretion, appellate courts will not interfere. Palmer v. State, 186 Ga. App. 892, 898-899 (369 SE2d 38). Considering the nature of Hicks’ claim and Jeffers’ claim with the role that Jeffers played in finding evidence in Hicks’ case, the trial court did not abuse its discretion by allowing this testimony. Evidence about Jeffers’ other claims was not directed only toward showing Jeffers’ bad character, but to show his knowledge of the facts necessary to prove a claim of this nature in the absence of a corroborating eyewitness and the possibility that this evidence was “found” as part of a scheme to submit a fraudulent claim. Accordingly, we find no error.

Decided November 5, 1992 —

Reconsideration denied December 4, 1992

Jack F. Witcher, Maryellen S. Mitchell, for appellant.

3. Hicks also contends that the trial court erred by instructing the jury on fraud because fraud was not raised by the evidence. While this argument overlooks that Southern General’s defense was based on the contention that Hicks’ claim was fraudulent and part of a scheme developed by Jeffers and Hicks to defraud the insurance company, we need not address this contention because we find that Hicks waived any error by failing to object to this charge with sufficient particularity at the appropriate time. OCGA § 5-5-24 (a). Examination of the record shows that Hicks merely stated that he objected to the trial court giving a series of defense requested charges for the reasons stated earlier. Although not required to do so (Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (389 SE2d 251)), we have examined the likely places in the transcript for such an objection, and have not found an instance in which the basis for the objection to this charge is stated. Therefore, any error was waived.

4. Hicks’ last enumeration of error contends that the trial court erred by charging the jury on the elements of a negligence claim. This argument ignores the relationship of negligence to an uninsured motorist claim. Hicks could only recover from Southern General under his uninsured motorist coverage if he could establish that the driver of the John Doe vehicle was negligent and that negligence caused Hicks’ damages. Thus, considering the evidence of the possibility that this accident was the result of Hicks’ medical condition as well as the evidence showing there was no contact with a John Doe vehicle, there was some evidence authorizing the charge. “[When] there is any evidence, however slight, upon a particular issue, it is not error for the court to charge the law in relation to that issue.” Fredericks v. State, 172 Ga. App. 379, 380 (323 SE2d 265). Accordingly, there was no error in giving these charges.

Judgment affirmed.

Beasley and Andrews, JJ., concur.

Tisinger, Tisinger, Vance & Greer, Thomas E. Greer, for appellee.


author: Beasley, Judge.

text:
    A92A1081.
    WILSON et al. v. STATE OF GEORGIA.
    (426 SE2d 192)
   Beasley, Judge.

The State of Georgia was improperly granted partial summary judgment in an action under OCGA § 16-12-31 to forfeit $7,235.86 seized from the apartment of appellants Johnny and Lucy Wilson on March 8, 1991.

1. “All property used in, intended for use in, used to facilitate, or derived from or realized through a violation of [the gambling laws] or which is located within any gambling place ... is declared to be contraband and may be seized and forfeited as provided in this Code section.” OCGA § 16-12-32 (b). “Funds” are included within the OCGA § 16-12-32 (a) definition of “property.” A forfeiture proceeding is conducted “as other civil cases in [the superior] court,” OCGA § 16-12-32 (f), so OCGA § 9-11-56 (c) applies.

The State, as movant, had the burden of establishing the nonexistence of any genuine fact. It showed that during a long period of police surveillance, Johnny Wilson was observed on 14 occasions making gambling pickups from a co-defendant and returning to his apartment. The co-defendant later pled guilty to two counts of commercial gambling and keeping a gambling house. Police also observed Wilson in a daily pattern of picking up bets at the residence of another co-defendant who later pled guilty to commercial gambling.

Execution of a search warrant at the Wilsons’ apartment resulted in the seizure of the currency at issue. It was found in various locations in the master bedroom in close proximity to numbers tickets and other gambling records. Much of it was in small denominations and in rolled and banded coins. Additional money bands, records of a gambling business (in a desk drawer), and numbers tickets (in a trash can) were found in the bedroom. Johnny Wilson pled guilty to commercial gambling, OCGA § 16-12-22 (a), in that he operated and participated in the earnings of a gambling place, Grace King’s residence, between December 3, 1990, and March 8, 1991.

Appellants then had the burden of setting forth specific facts in order to show there is a genuine issue for trial. Their affidavits stated that the money was “derived, realized or obtained” from their savings withdrawals in 1988 and 1990, a loan repayment, Johnny’s back pay award in 1990, Lucy’s legal settlement in 1990, and their long-time accumulation of coins. They attached documentation of some of those transactions, spanning about three years. They denied that any of the money was “used in, used to facilitate, or intended for use in any gambling activity.”

Decided November 19, 1992 —

Reconsideration denied December 4, 1992.

May & Horkan, Dwight H. May, for appellants.

H. Lamar Cole, District Attorney, Charles M. Stines, Mark E. Mitchell, Assistant District Attorneys, for appellee.

“In deciding motions for summary judgment, . . . : ‘The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. [Cit.]’ [Cits.]” Barber v. Perdue, 194 Ga. App. 287, 289 (390 SE2d 234) (1990). The facts and reasonable inferences to be drawn from appellants’ counterevidence “point[ed] to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Whether appellants’ explanations are credible must be left to the factfinder, as “the court is not in a position to weigh the evidence or determine its credibility. ...” Hoh Co. v. Ethridge, 168 Ga. App. 20, 22 (2) (308 SE2d 43) (1983). Appellants’ evidence is not such that reasonable minds would not differ as to its credibility. It is not devoid of credit as a matter of law. “Summary judgment should be granted only . . . where undisputable, plain and palpable facts exist on which reasonable minds could not differ as to the conclusion to be reached.” Stukes v. Trowell, 119 Ga. App. 651 (168 SE2d 616) (1969); Braddy v. Collins Plumbing &c., 204 Ga. App. 862 (420 SE2d 806) (1992).

2. Lucy Wilson asserts that an issue of fact remains as to her intent or knowledge that the seized property was used in violation of OCGA § 16-12-32. Subsection (g) provides: “Should it appear that any person filing a defense in the action knew, or by the exercise of ordinary care should have known, that the property was used in violation of this Code Section, . . . such person shall have no claim upon the property. ...”

Since a factual question was established as to whether the monies seized were used in violation of the gambling laws, any knowledge on the part of Lucy Wilson is likewise for the jury’s consideration.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A1144.
    HELTON v. THE STATE.
    (426 SE2d 172)
   Birdsong, Presiding Judge.

Randy Leonard Helton appeals his convictions of burglary and recidivism. He alleges that the trial court erred by admitting in evidence his pretrial statement because the police violated OCGA § 24-3-50 by threatening him with allegations of child abuse before questioning him about the burglary and by giving the hope of benefit by telling him they would tell the district attorney of his cooperation. Held:

Decided October 29, 1992 —

Reconsideration denied December 4, 1992

Boling, Rice, Bettis, Bottoms & Bagley, Jeffrey S. Bagley, for appellant.

Although Helton’s testimony during the Jackson-Denno hearing conducted to consider the admissibility of his pretrial statements mentioned these subjects, Helton did not claim that he gave a statement either because he was offered a hope of benefit or because he was coerced, or both. On the contrary, Helton denied making a statement to the police. Under these circumstances, Helton has not asserted a violation of OCGA § 24-3-50.

Moreover, after testifying that Helton was properly advised of his rights, the officer testified that the officers from another jurisdiction questioned Helton briefly about spanking his baby severely, and those officers were contemplating further charges which they were going to handle since any offenses happened in their other jurisdiction. The officer who testified that he took Helton’s statement stated, however, that he never mentioned anything about potential charges of child abuse to Helton, and denied threatening Helton with loss of custody of his child if he did not give a statement.

Helton also alleges that the police promised him a benefit by telling him they would put in a good word for him with the district attorney. The officers testified that they only told Helton that they would tell the district attorney of any cooperation. Under these circumstances, Helton has failed to raise a violation of OCGA § 24-3-50. Cline v. State, 153 Ga. App. 576, 578 (266 SE2d 266). Within the context of OCGA § 24-3-50 “the slightest hope of benefit” means a lighter sentence. Sizemore v. State, 201 Ga. App. 431, 432 (411 SE2d 505).

Moreover, the trial court rejected Helton’s contentions and admitted the statements that the officers testified Helton made. “ ‘Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.’ ” Brown v. State, 259 Ga. 453, 454 (383 SE2d 882). See Gadson v. State, 197 Ga. App. 315 (1) (398 SE2d 409). As the testimony at the Jackson-Denno hearing fully supports the findings of the trial court, we must accept these findings. Accordingly, Helton’s enumerations of error are without merit.

Judgment affirmed.

Beasley and Andrews, JJ., concur.

Garry T. Moss, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellee.


text:
    A92A1213.
    FIDELITY ENTERPRISES, INC. et al. v. HEYMAN & SIZEMORE et al.
    (426 SE2d 177)
   Birdsong, Presiding Judge.

Fidelity Enterprises, Inc. and Daisy F. Peppers (“Fidelity”) appeal the order of the superior court dismissing their complaint against Ben Weinberg, Jr., Dan B. Wingate, Robin Peek, and Long, Weinberg, Ansley & Wheeler because Fidelity did not respond to appellees’ interrogatories. Fidelity contends the trial court abused its discretion in dismissing the complaint against appellees because the dismissal was not supported by the evidence or the laws of this state. Held:

1. The record shows that the litigation giving rise to this appeal began over 20 years ago. In this instance, appellees are attorneys who defended Fidelity’s former attorneys when Fidelity sued those attorneys. Thereafter, Fidelity brought this action against appellees, the former attorneys, and the official court reporter in which the earlier case was tried contending, inter alia, the defendants had conspired to alter the official transcript of the trial in their earlier action.

Appellees responded to the complaint and on March 15, 1991, served Fidelity with interrogatories. On March 19, 1991, Fidelity sought and obtained an extension of 30 days in which to respond to the interrogatories, but no further extensions were sought or obtained. Fidelity, however, did not respond to these interrogatories until December 3, 1991.

On October 30, 1991, appellees moved to dismiss the complaint as a sanction for Fidelity’s refusal to answer the interrogatories. By order filed December 10, 1991, the trial court dismissed Fidelity’s complaint against appellees. The trial court’s order found that the record showed Fidelity’s failure to respond to the interrogatories was a conscious and intentional failure to act within the meaning of OCGA § 9-11-37 (d) warranting dismissal. Bells Ferry Landing v. Wirtz, 188 Ga. App. 344 (373 SE2d 50). Additionally, the order recited that Fidelity’s failure to respond timely to the motion for sanctions was another factor showing the ultimate sanction was warranted.

Fidelity’s briefs in this court are replete with references to conversations between Mrs. Peppers and others and other matters that are not contained in the record on appeal, and thus cannot be considered. Factual assertions in appellate briefs which are not supported by evidence in the record cannot be considered in the appellate process. Behar v. Aero Med Intl., 185 Ga. App. 845 (366 SE2d 223); Hudson v. State, 185 Ga. App. 508 (364 SE2d 635). Further, briefs cannot be used in lieu of the record or transcript to add evidence to the record. See Williams v. State, 193 Ga. App. 677, 678 (388 SE2d 893).

Decided November 5, 1992 —

Reconsideration denied December 4, 1992

Daisy F. Peppers, pro se.

Long, Weinberg, Ansley & Wheeler, Ben L. Weinberg, Jr., Dan B. Wingate, Sullivan, Hall, Booth & Smith, Henry D. Green, Jr., David V. Johnson, for appellees.

Trial judges have broad discretion in controlling discovery, including imposition of sanctions (Joel v. Duet Holdings, 181 Ga. App. 705 (353 SE2d 548)), and appellate courts will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion. Nixon v. Sandy Springs Fitness Center, 167 Ga. App. 272 (306 SE2d 362). In this instance, we are satisfied that this record fully supports the trial court’s finding that Fidelity’s failure to answer the interrogatories was the result of a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance. These interrogatories were unanswered for over eight months and even then Fidelity only answered the interrogatories after appellees moved for sanctions. Of course, these late responses did not nullify the motion for sanctions. Rucker v. Blakey, 157 Ga. App. 615, 616 (278 SE2d 158).

Although Fidelity offers the incapacity of Mrs. Peppers’ secretary as a reason for not responding to the interrogatories, the record contains many handwritten pleadings submitted. We also note the record shows identical interrogatories were served upon Fidelity in its earlier action against these appellees and that these interrogatories went unanswered then as well. Accordingly, we do not find that the trial court abused its discretion in this case. “Plaintiffs who file lawsuits and put defendants to the expense and trouble to answer, should at least prosecute their actions efficiently and diligently; the CPA authorizes dismissal in a case like this.” Bells Ferry Landing v. Wirtz, supra at 345. See also Schrembs v. Atlanta Classic Cars, 261 Ga. 182, 183 (402 SE2d 723).

2. As Fidelity’s brief argued only the one enumeration of error discussed in Division 1 and presented no specific argument, cited no authority, and made no reference to the transcript or record to support its other enumerations, the other enumerations are deemed abandoned. Sepulvado v. Daniels Lincoln-Mercury, 170 Ga. App. 109 (316 SE2d 554).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A1345.
    JONES v. THE STATE.
    (426 SE2d 179)
   Birdsong, Presiding Judge.

After Olin T. Jones was convicted of driving under the influence of alcohol and driving on a suspended driver’s license, he filed this appeal. He contends the trial court erred by denying his motion to quash the DUI count, which was in the nature of a motion in arrest of judgment, because the count did not state an offense.

Jones was charged with three offenses arising from the same incident: Count 1, driving under the influence of alcohol to the extent he was a less safe driver (OCGA § 40-6-391 (a) (1)); Count 2, having a .12 BAT within three hours after driving (OCGA § 40-6-391 (a) (4)); and Count 3, driving on a suspended license (OCGA § 40-5-121). After the jury was sworn, Jones moved to quash Count 2, and after the motion was denied, the case proceeded to trial. Thereafter, the jury acquitted Jones of Count 1, but convicted him of Counts 2 and 3.

Jones’ sole enumeration of error is that the trial court erred by submitting Count 2 to the jury. As Jones does not challenge his conviction of Count 3, it will not be discussed further. Held-.

1. Although made orally after the jury was impaneled, Jones’ motion was authorized because it was in the nature of a motion in arrest of judgment asserting that the accusation was defective on its face. See Pullen v. State, 199 Ga. App. 881 (406 SE2d 283); State v. O’Quinn, 192 Ga. App. 359, 361 (384 SE2d 888).

2. The relevant portions of Counts 1 and 2 accused Jones of: (Count 1) “The offense of misdemeanor driving under the influence of alcohol for that the said Olin T. Jones in the county aforesaid on the 23rd day of June, 1991, did unlawfully then and there drive and was in actual physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe for the accused to drive, contrary to the laws of said state, the peace, good order, and dignity thereof,” and (Count 2) “the offense of misdemeanor driving under the influence of alcohol for that the said Olin T. Jones in the county aforesaid on the 23rd day of June, 1991, did unlawfully then and there while the accused’s alcohol concentration was 0.12 grams or more at a time within three hours after such driving and being in actual physical control from alcohol consumed before such driving and being in actual physical control ended, contrary to the laws of said state, the peace, good order, and dignity thereof.” (Emphasis supplied.)

Jones contends that because Count 2 does not allege that he drove or was in actual physical control of a moving vehicle, it does not state a violation of OCGA § 40-6-391 (a) (4). Thus he asserts that a motion to arrest judgment would lie because he could admit that he did what he is accused of in this accusation without being guilty of an offense under our law because OCGA § 40-6-391 (a) (4) punishes those who have a blood alcohol level of .12 grams or more within three hours of having driven or being in actual physical control of a motor vehicle. Jones argues that he could admit to having driven or having been, in actual physical control of a bicycle, or roller skates, or a wheel chair, etc., without committing a violation of OCGA § 40-6-391 (a) (4). Therefore, he could admit the charge and still be innocent. See State v. Eubanks, 239 Ga. 483, 485 (238 SE2d 38).

The validity of this argument generally lacks persuasiveness, because OCGA § 40-6-391 refers to moving vehicles, not motor vehicles, and a vehicle is defined as “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.” OCGA § 40-1-1 (75). Further, a motor vehicle is defined as “every vehicle which is self-propelled.” OCGA § 40-1-1 (33). Moreover, the scope of the OCGA § 40-6-391 is not limited to highways, as defined in OCGA § 40-1-1 (19), but applies elsewhere throughout the state. OCGA § 40-6-3 (a) (3).

In any event, we find this accusation sufficient to defeat a motion in arrest of judgment. Although each count of an accusation must stand on its own when tested for legal sufficiency, one count of an accusation may incorporate another. Staples v. State, 199 Ga. App. 551, 552 (405 SE2d 551); Lee v. State, 81 Ga. App. 829, 831 (60 SE2d 177). Therefore, we find the reference to “such driving and being in actual physical control” is sufficient to incorporate into Count 2 the language of Count 1 that Jones did “drive and was in actual physical control of a moving vehicle.” Although the manner in which the offense was averred falls short of serving a model of Code pleading, it was sufficient to charge the offense in plain terms and was sufficiently described to permit both Jones and the jury to understand the crime charged. Staples v. State, supra.

We note that this entire issue could have been avoided by the simple expediency of referring to the relevant Code section in the accusation. See Hammock v. State, 201 Ga. App. 614-615 (411 SE2d 743); State v. Howell, 194 Ga. App. 594 (391 SE2d 415). Nevertheless, since Jones has not alleged that he was unable to prepare his defense or that he was otherwise prejudiced, any error was harmless. Wood v. State, 190 Ga. App. 733 (380 SE2d 289). Therefore, denial of Jones’ motion was not reversible error. Staples v. State, supra.

Judgment affirmed.

Beasley and Andrews, JJ., concur.

Decided November 5, 1992 —

Reconsideration denied December 4, 1992

Burkett & Schneider, William Schneider, for appellant.

Nancy N. Bills, Solicitor, for appellee.


author: Sognier, Chief Judge.

text:
    A92A1447.
    ARDEX, LTD. v. BRIGHTON HOMES, INC.
    (426 SE2d 200)
   Sognier, Chief Judge.

Brighton Homes, Inc. brought suit against Ardex, Ltd. seeking either specific performance of two real estate sales contracts or refund of its earnest money and an award of damages. One of the contracts was closed after the suit was filed, but the trial court later ordered rescission of the sale because of a unilateral mistake by Brighton. The court also granted summary judgment to Ardex on the issue of specific performance of the other contract, and the case then proceeded to nonjury trial on the issue of Brighton’s entitlement to damages. The trial court entered judgment for Brighton, and Ardex appeals.

In January 1988 appellant, a residential real estate developer, owned several tracts of land in Cobb County, a portion of which had been developed into subdivision lots. Appellant decided to sell certain tracts by auction and engaged Hudson & Marshall, Inc. to conduct the auction on March 1. Appellee successfully bid on two tracts, subdivided lots 8 and 9 in Paddocks West Subdivision, and 22.5 acres of raw land in the same subdivision. The purchase price for the 22.5 acre tract was set at $196,875, and appellee deposited earnest money of $39,375 with Hudson & Marshall for that purchase. For lots 8 and 9, the parties agreed to a price of $20,500 and an earnest money deposit of $4,100. The contracts provided for a closing date of April 1, 1988 (although the contracts did not state that time was of the essence), set a deadline for title objections, and required appellant to tender marketable title.

Thereafter, appellee timely notified appellant of its objections to title, the relevant objection for this appeal being a claim of lien filed by Atlanta Construction Enterprises, Inc. (ACE) on February 26, 1988. Appellee’s escrow agent and the agent’s closing attorney examined the lien claim, compared its property description to the plat of the property on record at the courthouse, and concluded the lien attached to both parcels appellee had contracted to purchase. As a result, appellee requested that the lien objection be satisfied prior to closing. Appellant, however, contended the claim of lien attached only to lots 8 and 9. Appellant and the closing attorney orally agreed to extend the closing deadline to April 5, 1988, but the sales did not close by that date. Although appellant’s president testified at trial that he had arranged to bond off the claim of lien, it is undisputed that no lien bond was ever obtained and the claim of lien was not satisfied or removed by April 5. Appellee’s president testified that appellee had the necessary funds available at all times, and the president of appellee’s escrow agent testified that the sales could have been closed on one hour’s notice if the lien objection had been satisfied.

Subsequent to April 5, 1988, appellant refused to close and sought to collect the earnest money from Hudson & Marshall. In response, appellee filed this action on April 23. Three days later, appellant filed an action to quiet title against ACE, alleging that the claim of lien constituted a cloud on the title of both parcels under contract to appellee. The claim of lien was satisfied of record on January 17, 1989.

1. Appellant’s contention that the trial court did not enter adequate findings of fact and conclusions of law as required by OCGA § 9-11-52 is without merit. The statute provides that in nonjury trials, “the court shall upon request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law.” (Emphasis supplied.) Id. at (a). “Upon motion made . . . after entry of judgment, the court may make or amend its findings or make additional findings and may amend the judgment accordingly.” (Emphasis supplied.) Id. at (c).

The record reveals no request for findings prior to entry of judgment; consequently, any entry of findings and conclusions was left to the trial court’s discretion. See id. at (a), (c). After the court entered judgment for appellee, appellant moved the court pursuant to paragraph (c) to include additional findings and conclusions. The court then elected to make additional findings of fact and conclusions of law in a consent order agreed to in writing by appellant and appellee. Appellant thus approved the content of the amended order and cannot now complain of the court’s failure to include additional findings of fact and conclusions of law. See Rude v. Rude, 241 Ga. 454, 455 (1) (246 SE2d 311) (1978); see generally Hornsby v. Odum, 198 Ga. App. 472, 473 (2) (402 SE2d 56) (1991) (“ ‘ “One cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.” (Cit.)’ [Cit.]”).

2. Contrary to appellant’s first enumeration of error, the trial court did not find that the ACE lien claim attached to the 22.5 acre tract. Instead, the court found only that throughout the relevant time period, appellee “maintained its position that the Claim of Lien was a cloud upon the title to both the 22.5 acre tract and lots 8 and 9.” However, even assuming that such a finding can be inferred from the court’s order, the finding is not in error. The issue before the court was not whether the claim of lien did attach to the 22.5 acre tract as a matter of law, but whether the claim constituted a cloud on the title of both parcels sufficient to authorize appellee to require that it be removed before closing either contract.

A purchaser’s “ ‘right to an indisputable title, clear of defects and encumbrances, does not depend upon the agreement of the parties, but is given by law. . . [.] A good title means not merely a title valid in fact, but a marketable title which can again be sold to a reasonable purchaser or mortgaged to a person of reasonable prudence as a security for the loan of money.’ (Emphasis omitted.) [Cit.]” Atlanta Title &c. Co. v. Erickson, 67 Ga. App. 891, 894 (21 SE2d 548) (1942). Given the testimony of the closing attorney, an experienced real estate lawyer, that the claim of lien was a cloud on the title of both parcels, see id., and considering appellant’s admission in its suit against ACE that the claim of lien was filed against both parcels, see Wheeler v. Friendly Motors, 138 Ga. App. 260, 261 (226 SE2d 95) (1976) (admission by party in pleadings in one case on a matter relevant to a second case are admissible against the party in the second case), some evidence was presented from which the court could have concluded that appellee was authorized to consider the titles to both parcels unmarketable. Even assuming, without deciding, that the survey referenced in the property description of the lien claim would have shown that the 22.5 acre tract was not included in the claim, that survey was not of record and thus did not provide notice to third parties searching the title. Accordingly, the court was authorized to find that the claim of lien rendered both parcels unmarketable and that appellee rightfully refused to close on either contract until the lien claim was removed or satisfied. Because there was some evidence to support this finding, it was not clearly erroneous, and thus we will not set it aside. See generally Commonwealth Fin. Corp. v. Sherrill, 197 Ga. App. 403, 404 (398 SE2d 438) (1990).

3. Appellant next contends the trial court erred by awarding “speculative profits” of $80,987 for breach of contract damages. “The measure of damages for breach of a contract to sell land is the difference between the contract price and the fair market value at the time of the breach. [Cit.]” Hood v. Hallman, 143 Ga. App. 507, 508 (3) (239 SE2d 194) (1977). The parties agreed to contract prices totaling $219,375 for the two parcels. At trial, appellee’s president, an experienced real estate developer, testified that auction sale prices are generally 75 to 80 percent of market value and opined that the property was worth $290,000 in March 1988 ($260,000 for the 22.5 acre tract and $30,000 for lots 8 and 9). He also testified that in 1988 developed lots in the subdivision had a market value of at least $13,500 and a development cost of $7,200. Under this calculation, the 40 undeveloped lots in the 22.5 acre tract had a value of $252,000. Appellant’s president testified that appellant paid $326,250 for the subject property in June 1987, and no evidence was offered to indicate that the value declined between that time and the breach of contract in 1988. Accordingly, the damage award was within the range of competent evidence and was not based on speculation. See Prudential Timber &c. Co. v. Collins, 144 Ga. App. 849, 852 (3) (243 SE2d 80) (1978).

Decided November 23, 1992 —

Reconsideration denied December 4, 1992

Lipshutz, Greenblatt & King, Randall M. Lipshutz, Bruce J. Landau, for appellant.

4. Having determined that the damage award was supported by some evidence, we hold that appellant’s contention that the trial court improperly admitted evidence of the value of the subject property in 1991 presents nothing for review. Even assuming, without deciding, that admission of the 1991 valuation evidence was error, no harm can be shown because, as we held in Division 3, other evidence was presented to support the award of damages.

5. Finally, appellant maintains the trial court erred by awarding breach of contract damages as to lots 8 and 9. After the claim of lien was cleared of record, appellant tendered lots 8 and 9 to appellee and the sale closed in February 1989. Because of a unilateral mistake by appellee’s escrow agent which caused appellee to pay, and appellant to retain, a sum in excess of the contract price, the court ordered the contract rescinded, and appellant repurchased the property from appellee. Thereafter, appellee amended its complaint to include a claim alleging damages for breach of the contract for lots 8 and 9. In the judgment rendered after the nonjury trial, the court ordered return of the earnest money appellant held for both contracts and also awarded breach of contract damages.

“ [Rescission is a remedy in which neither party is held liable in damages for breach of the contract, the contract is treated as no longer binding as between the parties, and the court proceeds to restore the status quo. [Cits.]” Martin v. Rollins, Inc., 238 Ga. 119, 120 (1) (231 SE2d 751) (1977). Return to appellee of the earnest money paid for lots 8 and 9 was required to restore the status quo, but any award of damages for breach of that contract was inconsistent with the previous order of rescission. Accordingly, the court’s award of “benefit of the bargain damages” is vacated with direction that the portion attributable to the contract for lots 8 and 9 be written off.

6. Appellee’s motion for damages for frivolous appeal is denied.

Judgment affirmed in part; vacated and remanded in part.

McMurray, P. J., and Cooper, J., concur.

Long, Aldridge & Norman, Phillip A. Bradley, Steven J. Lawrence, for appellee.


text:
    A92A1481.
    HOWARD v. THE STATE.
    (426 SE2d 181)
   Birdsong, Presiding Judge.

John H. Howard, Jr., appeals his convictions of possession of marijuana and of two counts of possession of cocaine with intent to distribute. He contends the trial court erred by denying a motion in limine seeking to exclude evidence of drug transactions involving a person who was arrested with Howard, by allowing the State to cross-examine Howard about a prior conviction even though his character had not been placed in issue, and by allowing the State to impeach him with testimony about the prior conviction rather than an exemplified or certified copy of the conviction. Held:

1. Howard first alleges that the trial court abused its discretion by denying his motion in limine seeking to exclude evidence concerning drug transactions in which the person arrested with Howard sold cocaine to undercover officers. Although this evidence showed the other person sold the cocaine to the undercover officers on these occasions, the transcript also contains evidence showing Howard’s personal involvement in these transactions, e.g., Howard’s beeper was used to contact the other person and Howard drove the other person to the drug sales. Therefore, consideration of Howard’s involvement with the other party was warranted (OCGA § 24-2-2); the testimony was relevant to show his participation in the distribution of the cocaine. Additionally, the circumstances connected with Howard’s arrest were admissible as part of the res gestae. Crowe v. State, 193 Ga. App. 385 (388 SE2d 24). Admission of evidence rests within the sound discretion of the trial court which appellate courts will not disturb absent evidence of its abuse. Whisnant v. State, 178 Ga. App. 742, 743 (344 SE2d 536). Therefore, as we find no abuse of the trial court’s discretion, this enumeration of error is without merit.

2. Howard’s other enumerations of error contend the trial court erred by allowing the State to introduce evidence about his guilty plea in another state to possession of heroin with intent to distribute. Howard claims that evidence about his prior conviction violated OCGA § 24-9-20 (b) because he had not placed his character in issue, and he also asserts that allowing his impeachment other than with a certified copy of his prior conviction violated OCGA § 24-9-84.

Howard’s arguments, however, confuse impeachment and character evidence. “There are a number of circumstances in which it has been stated that the defendant has placed his ‘character in issue’ when something entirely different has occurred. . . . Where the defendant testifies in his own behalf and ‘ “falsely denies past criminal conduct [or past, misdeeds,] the State may introduce evidence reflecting negatively on the defendant’s character only insofar as that evidence proves the falsity of specific testimony of the defendant.” ’ [Cit.] In this circumstance the defendant has not placed his character ‘in issue’ within the meaning of OCGA § 24-9-20 (b). Rather, we recognize this as a situation where the state is permitted to rebut statements of a defendant who testifies at trial by disproving the facts testified to.” Jones v. State, 257 Ga. 753, 759 (363 SE2d 529). See Williams v. State, 257 Ga. 761, 762-763 (363 SE2d 535). Therefore, proof of Howard’s prior conviction was permissible to disprove Howard’s specific testimony that he had never been in the drug business. Sanders v. State, 199 Ga. App. 671, 673 (405 SE2d 727).

Decided November 5, 1992 —

Reconsideration denied December 4, 1992.

Daniel L. Dean & Associates, Daniel L. Dean, James D. Nichols, Jr., for appellant.

Robert E. Wilson, District Attorney, Gregory A. Adams, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.

Howard also claims that the trial court erred by allowing the State to cross-examine him about his prior conviction because the State could only show his prior conviction with the certified or exemplified record of the conviction. While acknowledging that impeachment by a prior conviction requires proof by the record of the conviction and not by cross-examination (O’Toole v. State, 258 Ga. 614, 616 (373 SE2d 12); Ledesma v. State, 251 Ga. 885, 888 (311 SE2d 427)), the State asserts that Howard cannot raise this issue on appeal because he failed to object below. As the record shows that Howard objected on other grounds, but not on this specific ground, we cannot consider this issue for the first time on appeal. Scott v. State, 243 Ga. 233, 234-235 (253 SE2d 698); Cooper v. State, 173 Ga. App. 254, 256 (325 SE2d 877). Further, “[t]he ‘best evidence’ rule may be waived. Thus, if the witness is asked about a prior conviction and no objection is raised, the conviction may be proved by the testimony of the convicted witness.” O’Toole v. State, supra at 616, n. 2. As the transcript shows that Howard did not object to proof of his prior conviction by his testimony, any “best evidence rule” objection to this testimony was waived.

Accordingly, these enumerations of error are also without merit.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A1523.
    ROBERTS v. TIFTON MEDICAL CLINIC, P.C. et al.
    (426 SE2d 188)
   Beasley, Judge.

The Tifton Medical Clinic, P.C., and its physician-shareholders filed this complaint in equity to enjoin Don Roberts, M.D., from violating restrictive covenants contained in employment agreements executed by Roberts and all of the clinic’s other physician-shareholders. Roberts appeals the trial court’s denial of his motion to dismiss and its grant of plaintiffs’ request for an interlocutory injunction.

Jurisdiction

This case was appealed to the Supreme Court, which, citing Beauchamp v. Knight, 261 Ga. 608 (409 SE2d 208) (1991), transferred the appeal to this court, “[i]nasmuch as appellant raises no substantive issue of equity in this appeal.” But see Glosser v. Powers, 209 Ga. 149 (3) (71 SE2d 230) (1952); Rakestraw v. Lanier, 104 Ga. 188 (30 SE 735) (1898); 15 EGL Injunctions, 413 (1980 Rev.). Both actions of the court involve the question of whether the restriction in the contract is enforceable. If it is, the restriction neither blocks pursuit of the complaint nor precludes the grant of the equitable relief ordered.

Facts

The facts are not in material dispute.

In 1980, Roberts moved to Tifton and began working with the Tifton Medical Clinic, a professional corporation composed of physician-shareholders who operate a group practice for the delivery of medical services. All matters concerning management of the clinic are decided by a majority vote of the board of directors, and all physician-shareholders have an equal stock interest and one vote on the board. When appellant joined the clinic, it was also the practice of the clinic to pay all physician-shareholders an equal salary.

Roberts purchased shares in 1981 and became a member of the board. Shortly thereafter, he received training in the field of gastroenterology at the clinic’s expense. At a cost in excess of $125,000, the clinic purchased specialized equipment for him to use. At Roberts’ request, the clinic also recruited a gastroenterologist, paying a placement fee of $15,000 because of the substantial demand for such physicians. In 1987, after extensive negotiation and discussion, each of the physician-shareholders executed identical “employment agreements” with the clinic. They would not have agreed to the restrictions contained in these agreements, absent the execution of identical agreements by all other physician-shareholders.

In 1988 or 1989, Roberts became dissatisfied with the amount of compensation he was receiving and began to demand that he be paid more than other physician-shareholders. As a result, in 1988 he was paid $5,000 more than other physician-shareholders in the form of a bonus. In 1989, his salary from the medical clinic was $325,000; in 1990 it was $315,000; and in 1991 it was $267,000. In each of these years, his salary was over $100,000 more than any other physician-shareholder.

In September 1991, Roberts was elected president of the clinic. At that time, he decided to terminate his employment. Without informing the other physicians, he began taking steps to form another practice. He went in the clinic after hours and printed its patient list from the clinic’s computer. On Friday, February 14, 1992, he delivered a written notice terminating his employment as of the following Monday. He then mailed letters to physicians who had referred patients to him at the clinic and requested that they redirect their referrals to his individual practice. He also mailed letters to patients informing them of his new practice.

Plaintiffs contend that Roberts has violated paragraphs 13 (A) and 19 of his employment agreement.

Paragraph 13 (A) of the agreement, entitled “Termination of Agreement,” provides: “A. The employee of the corporation may voluntarily elect to terminate this agreement at any time provided that the party so electing delivers to the other party six (6) months written notice of such termination.”

Paragraph 19, entitled “Restriction on Practice,” provides: “Should the employee elect to voluntarily terminate this agreement under the provisions of paragraph 13 (A) above, the employee agrees that he will not maintain a practice for the provision of medical services (nor enter the employ of any person or firm maintaining a practice for the provision of medical services) within a geographical area encompassing a 25 mile radius of any facility maintained by the corporation or Family Treatment Center, Inc. for the provision of medical services at the time of termination during a period of two (2) years from the date of termination of employee’s employment with the corporation. Both parties to this agreement acknowledge that, as a result of the employee’s affiliation with the corporation, he shall be exposed to certain operative procedures, information and patients, and that the utilization of such information and exposure in competition to the corporation would be harmful. The parties acknowledged that the restriction contained in this paragraph is reasonable with regards to both time and geographical area. . . .”

In their complaint, plaintiffs requested that the court issue a temporary restraining order, as well as interlocutory and permanent injunctive relief. Roberts filed a motion to dismiss, arguing that paragraph 19 of the parties’ , agreement is overbroad and unenforceable because unreasonable. The trial court denied the motion to dismiss and issued an interlocutory injunction “enjoining and restraining [Roberts] from maintaining a practice for the provision of medical services and from entering the employ of any person or firm maintaining a practice for the provision of medical services within a geographical area encompassing a 25 mile radius of any facility maintained by Tifton Medical Clinic, P. C., Tifton, Ga., for the provision of medical services.”

Case law

“By both constitutional and legislative provision, Georgia prohibits contracts or agreements in general restraint of trade. [Cits.] Georgia courts have consistently held that the prohibition does not impose an absolute bar against every kind of restrictive agreement.” Howard Schultz &c. v. Broniec, 239 Ga. 181, 183 (1) (236 SE2d 265) (1977). Under the traditional test in Georgia, a covenant not to compete ancillary to an employment contract has been held unenforceable on public policy grounds, unless it is strictly limited in time and territorial effect and is otherwise reasonable considering the business interest of the employer sought to be protected and the effect on the employee. Id.

Under this test, it has been held that a restrictive covenant — which prohibits an employee from accepting employment with a competitor of the employer “in any capacity,” or from engaging in a business “similar to” the employer’s business or a “related trade” — is unenforceable in that it imposes a greater limitation upon the employee than is necessary for the protection of the employer and does not specify with particularity the nature of the business activities in which the employee is forbidden to engage. See Fields v. Rainbow Intl. Carpet Dyeing &c. Co., 259 Ga. 375 (380 SE2d 693) (1989); Wilson v. Center Bros., 250 Ga. 156, 157 (296 SE2d 589) (1982); Howard Schultz, supra, 239 Ga. at 184 (2). But see National Teen-Ager Co. v. Scarborough, 254 Ga. 467, 469 (330 SE2d 711) (1985), discussed infra.

A lesser standard of judicial scrutiny has been applied to covenants not to compete ancillary to the sale of a business. See Taylor Freezer Sales Co. v. Sweden Freezer Eastern Corp., 224 Ga. 160, 162 (1) (160 SE2d 356) (1968). “When a person sells a business and covenants not to compete in a certain territory, the buyer pays and the seller receives a part of the total purchase price as consideration for that covenant. The buyer frequently would not buy the business if the seller were free to begin competing immediately.” Jenkins v. Jenkins Irrigation, 244 Ga. 95, 100 (259 SE2d 47) (1979). Consequently, in Jenkins the Supreme Court held that it would apply the “blue-pencil theory of severability,” where the territorial restriction in a covenant ancillary to the sale of a business was too broad and thus unreasonable, although in Rita Personnel Svcs. v. Kot, 229 Ga. 314 (191 SE2d 79) (1972), the Court had previously refused to “blue pencil” covenants not to compete ancillary to employment contracts.

Another category of covenants not to compete are those found in professional partnership agreements. Beginning with Rakestraw v. Lanier, supra, 104 Ga., and culminating in Rash v. Toccoa Clinic Medical Assoc., 253 Ga. 322, 323 (1) (320 SE2d 170) (1984), an agreement by a physician, through a covenant in a partnership agreement, not to engage in the practice of medicine, within a reasonably defined territory for a reasonable period of time after leaving the partnership, has been held by the Supreme Court to be generally enforceable.

The Court in Rakestraw, however, did find a distinction between such covenants and covenants ancillary to the sale of a mercantile or other kind of business. “In the former class there should be a reasonable limit as to time, so as to prevent the contract from operating with unnecessary harshness against the person who is to abstain from practicing his profession at a time when his doing so could in no way benefit the other contracting party. In the latter class such limit is not essential to the validity of the contract, but the restraint may be indefinite.” Id. at 189 (3). And in Jenkins, supra, 244 Ga. at 97-98, the Court later observed that covenants ancillary to professional partnership agreements had been treated like employee covenants ancillary to employment contracts.

However, in Rash, the Court found “obvious differences” between the two. Accord Taylor, supra, 224 Ga. at 163. In Rash, the defendant-physician, who was an obstetrician/gynecologist, argued that his covenant not to compete was unenforceable because the territorial limitation was not adequately circumscribed in accordance with the strictures contained in decisions such as Singer v. Habif, Arogeti & Wynne, P.C., 250 Ga. 376 (297 SE2d 473) (1982). Rash found Singer distinguishable in that, inter alia, it did not deal with a medical partnership agreement.

The Court in Rash held that “[w]e are dealing here not with an employment contract but with a partnership agreement. Although it does not appear that the appellate courts of this state have . . . clearly distinguished between the two types of agreements, there are obvious differences. In a partnership agreement such as the one here, as opposed to an employment agreement, the consideration flows equally among the contracting parties. For example, when an employee agrees to subject himself to possible future restrictions, he does so in exchange for the opportunity to have the job. He really gets nothing other than the opportunity to work in exchange for giving up this aspect of his freedom. On the other hand, here a partner has not only restricted himself, but he has also exacted from each of the other contracting parties a like restriction. ... In a similar case, the Supreme Court of Oregon upheld such a covenant, calling attention to the mutual benefits and burdens involved in such an agreement. [Cit.]

“The next distinction between employment agreements and partnership agreements is that it is generally true in the employer/employee relationship that the employee goes into a transaction such as this at a great bargaining disadvantage. Such would not be expected to be the case in a professional partnership arrangement, and it certainly was not the case here. [Cit.] Medical doctors are in demand. Medical doctors in the field of obstetrics and gynecology are certainly in demand. This is best evidenced by the fact that Toccoa Clinic Medical Associates paid a ‘finders fee’ in excess of $4,000 in connection with the location of Dr. Rash.

“Since the employee who agrees to the covenant may have done so from an inferior bargaining position, and since the covenant may seriously impair his ability to earn a living, the courts have traditionally given greater scrutiny to restrictive covenants within employment contracts, as opposed to such covenants contained in business sales agreements. In the present case, however, neither unequal bargaining status nor impaired ability to earn a living is present. Seen in this context, the covenant does not appear to be unreasonable.” Id. at 325-326 (2).

In Watson v. Waffle House, 253 Ga. 671, 673 (2) (324 SE2d 175) (1985), the Court held that rather than apply the three-element test of duration, territorial coverage, and scope of activity as an “arbitrary rule,” it would utilize it as “a helpful tool in examining the reasonableness of the particular factual setting to which it is applied.” The Court in Waffle House found a franchise agreement more analogous to a contract of employment than a contract for the sale of a business because of the substantially superior bargaining power of the franchisor.

In National Teen-Ager, supra at 469, the Court, citing Waffle House, held that whether a given covenant falls into the prohibited “in any capacity” category generally is not determinable solely from the face of the contract but must be determined based upon “the particular factual setting to which it is applied.”

Appeal

Roberts’ central argument is that paragraph 19 of the parties’ agreement should be classified as a restrictive covenant ancillary to an employment agreement and, so categorized, is overly broad and thus unenforceable.

Given the fact that Roberts’ bargaining power was equal to that of the parties with whom he contracted, the agreements they executed are more analogous to those involving the dissolution of a medical partnership, such as Rash. We discern no material difference between a prohibition against engaging in the practice of medicine which, as previously stated, has been held to be generally enforceable in other cases, and the prohibition in this case that the physician will not “maintain a practice for the provision of medical services.” We construe this to mean that Roberts is prohibited from maintaining a “medical practice.”

Decided November 18, 1992 —

Reconsideration denied December 4, 1992

Sims, Fleming & Swan, John S. Sims, Jr., for appellant.

Reinhardt, Whitley & Wilmot, Bob Reinhardt, for appellees.

The validity of the prohibition against Roberts’ “enter [ing] the employ of any person or firm maintaining a practice for the provision of medical services” must be determined by the particular factual setting to which it is applied, as held in Waffle House and National Teen-Ager. Under the facts adduced at the interlocutory hearing, we cannot say that this prohibition is being applied unreasonably here. Consequently, we need not decide whether it can or should be severed.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A1601.
    A92A1602.
    MINSTER v. POHL. CANDLER GENERAL HOSPITAL, INC. et al. v. MINSTER.
    (426 SE2d 204)
   Sognier, Chief Judge.

George A. Minster, as executor of the estate of Mary Elizabeth Minster Hattrich, filed a medical malpractice action against Candler General Hospital, Inc. (“the hospital”), and its employee Mary Hines, R.N. The complaint was later amended to add as defendants Stephen Pohl, M.D. and William Hitch, M.D., P.C. The trial court denied motions to dismiss the complaint made by Hines, the hospital, and Pohl on the ground that the expert’s affidavits attached failed to comply with the requirements of OCGA § 9-11-9.1. Pohl then filed a motion for summary judgment, which was granted. In Case No. A92A1601, Minster appeals from the grant of summary judgment to Pohl. In Case No. A92A1602, the hospital and Hines appeal from the denial of their motion to dismiss. Hitch is not involved in this appeal.

The record reveals the following salient facts: Mary Hattrich (“the decedent”) was admitted to the hospital for surgery. After surgery was performed, the decedent developed respiratory problems, and both a breathing tube and a nasogastric feeding tube were inserted. The decedent apparently pulled out the tubes, and Hines reinserted the feeding tube. She then asked Pohl, who was the emergency room doctor on duty, to view an x-ray to verify that she had properly replaced it. Pohl viewed the x-ray, observed that the tube was incorrectly placed in the decedent’s right lung rather than in her stomach and needed to be replaced, and noted that fact in the decedent’s progress notes. A pneumothorax was later discovered in the decedent’s right lung, which eventually led to her death. In the complaint, Minster alleged that Hines was negligent in failing to properly restrain the decedent to prevent her from extubating herself and in improperly inserting and inadequately verifying the placement of the feeding tube. The hospital’s liability wás premised upon respondeat superior. Minster also alleged that although Pohl correctly noted that the feeding tube was improperly placed, he was negligent in failing to recognize and report the development of the pneumothorax, which was visible on the x-ray.

1. The trial court granted Pohl’s motion for summary judgment on the basis that no doctor-patient relationship existed between Pohl and the decedent. In Case No. A92A1601, Minster contends the trial court’s conclusion was erroneous.

It is well established that “before a plaintiff may recover on the theory that he received negligent treatment from a defendant physician, the plaintiff must show that a doctor-patient relationship existed between them. In such cases, called ‘classic medical malpractice actions’ . . . , doctor-patient privity is essential because it is this ‘relation which exists between physician and patient which is a result of a consensual transaction’ that establishes the legal duty to conform to a standard of conduct. [Cit.]” Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693) (1982). In his affidavit proffered in support of the motion for summary judgment, Pohl averred that he “was asked by an employee of [the hospital] to view an x-ray for NG tube placement which [he] correctly did”; and that he “had no consensual or contractual relationship with the [decedent],” had not communicated with her or any member of her family, and had received no compensation from them or from the hospital.

Minster concedes that no consensual relationship in the usual sense existed between Pohl and the decedent, but argues that, contrary to the trial court’s finding, the affidavit of Dr. Scott Fowler, proffered in opposition to the motion for summary judgment, provides some evidence that a doctor-patient relationship was established, and should have precluded the entry of summary judgment in favor of Pohl. Dr. Fowler averred that he was a medical doctor licensed to practice in Georgia and was familiar with the practice of medicine in emergency departments, and opined that to a reasonable medical certainty, Pohl’s entry on the decedent’s progress notes could be interpreted as a direction or instruction to replace the feeding tube, and as such, was “an affirmative intervention into a patient’s , care, amounting to treatment” that created a “limited doctor-patient relationship.”

Pohl’s averment that he had not communicated with the decedent or her family and had viewed the x-ray merely as a courtesy to a member of the hospital staff was based on his personal knowledge of those facts, while Dr. Fowler’s averment was an opinion. Although “[t]he opinions of experts on any question of science, skill, trade, or like questions shall always be admissible,” OCGA § 24-9-67, “the scope of what is admissible as expert opinion testimony is not unlimited.” Clanton v. Von Haam, 177 Ga. App. 694, 695 (1) (340 SE2d 627) (1986). No professional skill or specialized medical knowledge is necessarily required to resolve the issue whether a doctor-patient relationship existed. Id. at 696 (1). Rather, “[t]he established test in Georgia for determining the initial creation of a physician-patient relationship is well within the comprehension of the average layman, in that it more nearly involves the application of non-expert concepts of a contractual nature rather than any expert medical principles.” Id. Fowler’s affidavit evinced no more than a non-medical opinion from a witness who happened to be a physician. Id. Accordingly, the opinion of Dr. Fowler on this issue was neither probative nor admissible as expert medical testimony. Id.

The question remains, however, here as in Clanton, supra at 696 (2), whether disregarding Dr. Fowler’s opinion, the evidence of record supports Minster’s contention that some form of doctor-patient relationship existed so as to support a claim for malpractice. The only evidence of record bearing on this issue, other than the affidavit of Dr. Fowler, consists of Pohl’s affidavit and the decedent’s medical records containing Pohl’s chart notation, and neither includes a direct reference to this issue. Because on motion for summary judgment all justifiable inferences are to be drawn in the respondent’s favor, however, Barber v. Perdue, 194 Ga. App. 287, 289 (390 SE2d 234) (1990), we must consider whether any justifiable inference favorable to Minster on this issue may be drawn either from Pohl’s affidavit or from his actions as reflected in the medical records. We find none.

This court has held repeatedly that a doctor-patient relationship must be consensual. See, e.g., Bradley Center, supra; Clough v. Lively, 193 Ga. App. 286, 287-288 (387 SE2d 573) (1989); Clanton, supra at 696 (1); Buttersworth v. Swint, 53 Ga. App. 602, 603-604 (2) (186 SE 770) (1936). In the instant case the decedent’s incapacity, admitted by Minster, rendered it impossible for her to form such a relationship, and Pohl’s averment that he did not communicate with the decedent’s family is unrebutted. Although Pohl unquestionably took action with respect to the decedent, viewing the x-ray and making a notation on her chart, nothing in the record justifies the inference that Pohl was acting as her doctor. Accordingly, the trial court properly found that no doctor-patient relationship existed.

2. Minster also contends that even should this court find no doctor-patient relationship, summary judgment was improperly granted. He argues that although Pohl’s duty to the decedent, a necessary element in establishing a malpractice claim against him, see Hawkins v. Greenberg, 166 Ga. App. 574, 575 (1) (a) (304 SE2d 922) (1983), would usually arise from a consensual doctor-patient relationship, in this case such a duty arose out of Pohl’s employment as an emergency room physician at the hospital. We do not agree.

Although there are exceptions to the requirement that a doctor-patient relationship be shown, see Clough, supra at 287, the facts of this case do not support Minster’s argument that this case falls within any of those exceptions. In his affidavit proffered in support of the motion for summary judgment, Pohl averred that he “viewed the x-ray as a courtesy to the staff of [the hospital] and not out of any obligation or duty.” Insofar as Minster’s complaint may be construed as a factual allegation that Pohl was under contractual obligation to attend to a patient in the decedent’s circumstances or that such attendance was the custom at the hospital, Pohl’s affidavit pierced this factual allegation. Minster proffered no evidence rebutting Pohl’s averment. Hence, the trial court properly concluded that the evidence adduced by Minster failed to support such a factual allegation. See generally Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

Further, our review of the applicable law convinces us that the narrow exceptions to the rule that existence of a doctor-patient relationship must be shown before liability may be imposed for medical malpractice do not encompass the situation presented here, and we decline to expand them to do so. The rule is generally followed by most other states, Peace v. Weisman, 186 Ga. App. 697, 703 (368 SE2d 319) (1988) (Benham, J., dissenting), which is indicative of its wisdom. We are persuaded that creating an exception to the rule for the situation sub judice would be detrimental to our health care delivery system, causing competent professionals who happen to be on the hospital premises but have no relationship to the patient to decline out of natural prudence to perform even minimal courtesies as a favor to busy hospital staff. We find this danger to be greater than the risk suggested by Minster of insulating such physicians from liability, particularly because applying the general rule does not leave the patient without a remedy should she prove negligence on the part of the hospital or its employees in any regard.

Accordingly, because the doctor-patient relationship was a necessary predicate for Minster’s claim of medical malpractice, and this element was lacking, see Division 1, supra, the trial court properly entered summary judgment in favor of Pohl. See Clanton, supra.

3. We do not address Minster’s argument that a question of fact remains regarding whether Pohl is entitled to immunity under OCGA § 51-1-29, the “Good Samaritan” Statute, compare Clayton v. Kelly, 183 Ga. App. 45 (357 SE2d 865) (1987), because neither a claim of such immunity nor Minster’s argument based thereon was asserted below. On appeal, we may only address issues that were raised and ruled on by the trial court. Venture Design v. Original Appalachian Artworks, 197 Ga. App. 432, 434 (3) (398 SE2d 781) (1990).

4. In Case No. A92A1602, the hospital and Hines contend the trial court erred by denying their motion to dismiss the complaint as to them, because the affidavit of Susan Clarke Case, R.N., attached to the complaint failed to comply with OCGA § 9-11-9.1 in two respects.

(a) In her affidavit, Case averred that she was a registered nurse licensed to practice in Georgia and was familiar with the standard of care applicable to the nursing profession generally with regard to the restraint of intubated patients and the proper placement and verification of feeding tubes. She then averred that she had reviewed copies of the decedent’s medical records, and from her review of those records it was her opinion, based upon a reasonable degree of professional certainty, that Hines should have restrained the decedent in order to prevent her from extubating herself; that Hines both improperly placed the feeding tube and failed to properly verify placement of the feeding tube; and that the improper placement of the feeding tube caused the pneumothorax eventually leading to death. The hospital and Hines maintain that Case’s affidavit was insufficient to satisfy OCGA § 9-11-9.1 because it did not include Case’s explicit averment that Hines’ actions violated the applicable standard of care.

We do not agree. The statute does not require that specific language be employed. It requires only that the affidavit “set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” OCGA § 9-11-9.1 (a). We find that Case’s affidavit fulfills this requirement unequivocally by listing the appropriate actions in each case; stating that Hines did not take the appropriate actions; and stating specifically that the decedent “should have been restrained”; that Hines “improperly placed the feeding tube”; and that Hines “did not properly verify placement of the feeding tube.” (Emphasis supplied.) OCGA § 9-11-9.1 establishes “an ‘exception to the general liberality of pleading permitted under (the Civil Practice Act, OCGA § 9-11-1 et seq.),’ [cit.],” 0-1 Doctors &c. v. Moore, 190 Ga. App. 286, 288 (1) (378 SE2d 708) (1989), and “should be construed in a manner consistent with the liberality of the Civil Practice Act where such construction does not detract from the purpose of § 9-11-9.1 ‘to reduce the number of frivolous malpractice suits being filed.’ [Cit.]” Gadd v. Wilson & Co., 262 Ga. 234, 235 (416 SE2d 285) (1992).

Piedmont Hosp. v. Milton, 189 Ga. App. 563 (377 SE2d 198) (1988), relied on by the hospital and Hines, does not require a different result. In Milton, an action against a hospital for actions of its employee nurse alleged to be contrary to the attending doctor’s instructions, the affidavit attached to the complaint in compliance with OCGA § 9-11-9.1 was that of the attending doctor, who averred simply that he “did not anticipate” that a nurse would act as the defendant nurse had. We held that affidavit insufficient both because it failed to state that the doctor was an expert competent to testify in the field of nursing, and also because it did not “indicate that [the hospital’s] nursing staff breached the requisite degree of care and skill required of the nursing profession generally by deviating from the treating physician’s post operative instructions. [Cit.]” (Emphasis supplied.) Id. at 564. Here, Case’s affidavit “indicates” unequivocally that Hines breached the requisite degree of care and skill required of the nursing profession generally by setting forth specific acts of negligence, although those exact words were not used. Accordingly, the affidavit was in compliance with the requirements of OCGA § 9-11-9.1.

(b) The contention of the hospital and Hines that Case’s affidavit was defective because the medical records on which Case averred she relied were not attached to the affidavit is controlled adversely to them by our holding in Division (4) (b) of HCA Health Svcs. v. Hampshire, 206 Ga. App. 108 (424 SE2d 293) (1992). Given that Case provided a detailed factual basis for her allegations of negligence in the body of her affidavit and specifically identified the records she reviewed as the source of those facts, the affidavit complied with the statute.

Accordingly, because Case’s affidavit complied with OCGA § 9-11-9.1, the trial court did not err by denying the motion to dismiss the complaint against the hospital and Hines. HCA Health Sues., supra.

Judgments affirmed.

McMurray, P. J., and Cooper, J., concur.

Decided November 23, 1992 —

Reconsideration denied December 4, 1992

Wiseman, Blackburn & Futrell, James B. Blackburn, Douglas M. Robinson, for Minster.

Oliver, Maner & Gray, William P. Franklin, Jr., Wendy W. Williamson, for Pohl.

Bouhan, Williams & Levy, Frank W. Seiler, Roy E. Paul, Peter D. Muller, for Candler General Hospital.

       OCGA § 9-11-9.1 applies to a hospital when it is sued under a theory of respondeat superior for the professional negligence of its employee nurse. See Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 63 (3) (424 SE2d 632) (1992).


author: Johnson, Judge.

text:
    A92A1617.
    DIXON v. HOME INDEMNITY COMPANY.
    (426 SE2d 381)
   Johnson, Judge.

Dixon, an attorney, represented the plaintiffs in a civil action in the Superior Court of Fulton County. Within 45 days after the conclusion of that action, the defendants filed a motion seeking an award of attorney fees and expenses of litigation against Dixon personally, pursuant to OCGA § 9-15-14, alleging that the lawsuit was frivolous. Following a full evidentiary hearing on that motion, the trial court found that the lawsuit was frivolous, that it had no basis in law or fact, and that Dixon, rather than his clients, was responsible. The trial court entered an award of attorney fees against Dixon personally in the amount of $59,480.84. On appeal, the Supreme Court affirmed the award without opinion. See Dixon v. Hubert, 260 Ga. XXIX (1991).

Following the Supreme Court’s decision, Dixon filed the instant declaratory judgment action against his professional liability insurer, The Home Insurance Company, seeking coverage for the award of attorney fees entered against him. Home filed an answer denying that Dixon’s policy provided coverage for awards entered under OCGA § 9-15-14. The trial court entered judgment in favor of Home. Dixon appeals.

1. Dixon contends that the trial court erred in ruling that his policy did not cover awards of attorney fees and expenses of litigation under OCGA § 9-15-14 based upon its determination that such awards are “sanctions” within the meaning of the policy. We disagree.

Awards of attorney fees and expenses of litigation entered pursuant to OCGA § 9-15-14 are not expressly included in the “Exclusions” section of the insurance policy in question, and are not expressly excluded elsewhere in the policy. The policy does, however, contain the following provisions regarding coverage:

“Section B — Coverage
“I. Professional Liability and Claims Made Clause: To pay on behalf of insured all sums . . . which the Insured shall become legally obligated to pay as damages as a result of CLAIMS FIRST MADE AGAINST THE INSURED . . . caused by any act, error or omission for which the insured is legally responsible, and arising out of the rendering or failure to render professional services for others in the insured’s capacity as a lawyer. . . .
“Damages, whenever used in this policy, means a monetary judgement (sic) . . . and does not include fines or statutory penalties, or sanctions whether imposed by law or otherwise. . . . (Emphasis supplied.)”

Because the policy does not expressly exclude from coverage damages arising from the application of OCGA § 9-15-14, nor does the policy define the term “sanction,” we are left to determine whether the trial court erred in its interpretation of both the policy language and OCGA § 9-15-14. In doing so, we must apply the well-settled legal principles' governing both statutory interpretation and interpretation of insurance policies.

We begin with the statute. “It is a fundamental rule of statutory construction that where the language of a statute is plain and unambiguous, the terms used therein should be given their common and ordinary meaning.” (Citations and punctuation omitted.) Capra v. Rogers, 200 Ga. App. 131, 133 (1) (407 SE2d 101) (1991). When one applies this rule to a reading of OCGA § 9-15-14, it is clear that the intent of the statute is to deter attorneys and parties from filing frivolous lawsuits. It accomplishes this deterrent effect by requiring the party or attorney who is responsible for filing a frivolous lawsuit to pay the opposing party’s attorney fees and expenses of litigation, thus deviating from the general rule that parties to lawsuits must bear their own attorney fees and expenses of litigation. See generally Arrington v. Thompson, 211 Ga. 734, 744 (8) (88 SE2d 402) (1955).

The word “sanction” means “a penalty or punishment provided as a means of enforcing obedience to a law.” Black’s Law Dictionary (4th ed. 1957). Though an award arising from a judgment under OCGA § 9-15-14 also serves the incidental purpose of providing compensation to the injured party, this does not diminish the reality that awards made under it are “sanctions” under the accepted definition of that term.

We now must look to the policy for any guidance it provides. We are bound by the principle that “[e]very insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy.” (Punctuation omitted.) S & T Timber v. Southern Gen. Ins. Co., 198 Ga. App. 18, 19 (400 SE2d 379) (1990); see also OCGA § 33-24-16. “An unambiguous policy requires no construction, and its plain terms must be given full effect even though they are beneficial to the insurer and detrimental to the insured.” (Citations and punctuation omitted.) Liberty Nat. Ins. Co. v. Davis, 198 Ga. App. 343, 344 (401 SE2d 555) (1991). Home contends that there is no coverage because the award was a “sanction” against Dixon, and that “damages” it is required to pay, as defined by the policy, expressly excludes sanctions. We agree.

The subject insurance policy does not define “sanction.” In the absence of a definition within the policy, we must give the word its ordinary meaning. See OCGA § 13-2-2 (2). “Sanction” is clear and unambiguous. The dictionary definition referred to above is entirely consistent with the plain meaning of the phrase in the policy, which groups “sanction” with “fine” or “statutory penalty,” as being excluded from coverage. It was not error for the trial court to conclude that an award of attorney fees under OCGA § 9-15-14 is a sanction within the meaning of the exclusion contained in Dixon’s insurance policy.

2. In his second enumeration of error, Dixon contends that Home was estopped from denying coverage and the trial court erred in concluding otherwise. This enumeration is without merit.

“An estoppel arises where one makes representations to another concerning a matter about which the other acts to his injury.” (Cita-, tion omitted.) Peter E. Blum & Co. v. First Bank &c. Corp., 156 Ga. App. 680, 683 (2) (275 SE2d 751) (1980); Davis v. Collier, 13 Ga. 485, 491 (1853). In this case, if Home had made representations to Dixon to the effect that the claim he submitted was covered under his insurance policy and had subsequently denied coverage to Dixon after he had relied on the representations to his detriment, Home would have been estopped to deny coverage. Such did not occur here. Home never made representations to Dixon that his claim was covered under the policy. The record shows that on June 28, 1989, Dixon first communicated to Home that he anticipated the filing of a motion against him for attorney fees. Home did not discuss with Dixon whether coverage would be provided him, advising Dixon to wait until he received notice that the motion had actually been filed. He followed up this conversation with a letter in which he asserted that his policy would cover any damages and costs which would arise from an OCGA § 9-15-14 judgment rendered against him. Home did not respond to Dixon’s letter. On July 12, 1989, after he received notice that a motion for attorney fees had in fact been filed against him, Dixon sent Home a second letter reiterating his position that the claim was covered and requesting a defense. Again, Home did not respond. On July 26, 1989, 14 days after Dixon informed Home that he had been served with a notice of motion, Home told Dixon that it was denying coverage. By letter dated October 19, 1989, Home again informed Dixon that his policy did not cover the claim.

Decided November 23, 1992 —

Reconsideration denied December 4, 1992

Coleman & Dempsey, R. Peter Catlin III, for appellant.

Freeman & Hawkins, Howell Hollis III, Kellie R. Casey, for appellee.

We conclude that the doctrine of estoppel is inapplicable under the circumstances here because Home did not at any time make representations that it would provide coverage for Dixon’s claim. Home’s representations to the contrary were entirely consistent with its action denying coverage, and Home’s refusal to provide coverage 14 days after it had been notified of Dixon’s claim was not untimely. Accordingly, the trial court was correct in its finding that Home was not estopped from denying coverage.

3. Dixon contends that the trial court abused its discretion in excluding evidence of his “good faith” in the rendering of his legal services to the plaintiffs in the underlying action. The record shows that the trial court did permit some evidence of Dixon’s “good faith” to be admitted for the purpose of allowing the court to construe the terms of the insurance policy. The court, however, did not permit evidence of Dixon’s “good faith” which amounted to attempts by Dixon’s counsel to retry issues which were adjudicated in the underlying action, the judgment in which was subsequently affirmed by the Supreme Court of Georgia. “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue ... in the cause wherein the judgment was rendered. . . .” OCGA § 9-12-40. The trial court did not abuse its discretion in barring Dixon from reasserting his “good faith” representation of the plaintiffs in the underlying action because that issue had been conclusively decided against Dixon in the OCGA § 9-15-14 hearing.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: Cooper, Judge.

text:
    A91A1084.
    ABAD v. KRAFT, INC. et al.
    (426 SE2d 270)
   Cooper, Judge.

This court entered a judgment in the above-styled case at 201 Ga. App. 523 (411 SE2d 500) (1991) reversing the judgment of the trial court. The Georgia Supreme Court granted certiorari in Kraft v. Abad, 262 Ga. 336 (417 SE2d 317) (1992) and reversed our holding. Accordingly, our judgment is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court with respect to appellant’s first enumeration of error. In our first opinion, we declined to address appellant’s second enumeration of error in which she argued that the trial court erred in striking her demand for a jury trial. We conclude that the authority to also strike appellant’s demand for a jury trial was implicit in the trial court’s authority to enter judgment in favor of the appellee/defendant upon appellant/plaintiffs failure to appear at trial. Cf. Stewart v. Stewart, 260 Ga. 812 (400 SE2d 622) (1991). Appellant’s reliance on Sewell v. Leifer, 144 Ga. App. 36 (240 SE2d 584) (1977) is misplaced. In that case, the trial judge entered judgment in favor of the plaintiff upon the defendant’s failure to appear, but there remained the issue of damages to be tried by the jury. Furthermore, any error in striking appellant’s demand was harmless since appellant failed to present any evidence and judgment for appellee was demanded. See Marler v. C & S Bank, 239 Ga. 342 (236 SE2d 590) (1977). Accordingly, we find no merit to this enumeration of error.

Decided December 4, 1992.

Siler & Associates, William A. Dinges, for appellant.

Fain, Major & Wiley, Gene A. Major, Bruce A. Maxwell, for appellees.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.