author: McMurray, Presiding Judge. Smith, Judge,

text:
    A94A2325.
    GEORGIA RECEIVABLES, INC. v. CHEATHAM et al.
    (455 SE2d 375)
   McMurray, Presiding Judge.

Georgia Receivables, Inc. (plaintiff), assignee to Great Southern Federal Savings Bank, brought an action against Robert C. Cheatham and Joyce H. Cheatham (defendants) to recover under a promissory note that was secured by defendants’ automobile. Defendants filed an answer, pro se, contending that “normal repossession procedures were not followed, and [that] sale of collateral was not made in a commercially reasonable manner, [allegedly resulting in the sale of defendants’ car] for less than 1/20 of value at time of sale.” The trial court denied plaintiffs motion for summary judgment, finding that plaintiff “failed to establish the material facts of notice to the debtor of the disposition of the collateral, commercially reasonable manner of sale, and commercially reasonable terms of sale.” The trial court later entered an order on its own motion, dismissing plaintiffs complaint based on expiration of the four-year statute of limitation prescribed by the Uniform Commercial Code in actions “for breach of a contract for the sale of goods. . . . O.C.G.A. Section ll-2-[725] (1).” This appeal followed. Held:

1. In its first enumeration of error, plaintiff asserts that the trial court “abused its discretion and violated [plaintiffs] due process rights when it dismissed [the] Complaint without first providing [plaintiff] with notice and an opportunity to be heard.” It is unnecessary to reach this contention because we agree with plaintiffs second enumeration that the trial court erred in dismissing plaintiffs complaint based on expiration of the four-year statute of limitation prescribed by OCGA § 11-2-725 (1). In this regard, plaintiff argues that the promissory note defendants executed (on December 30, 1986) is a contract under seal for which the applicable statute of limitation is 20 years. OCGA § 9-3-23.

“The promissory note [which is the subject of the case sub judice] is indistinguishable from the contract in Telfair Fin. Co. v. Williams, 172 Ga. App. 489 (323 SE2d 689) (1984) and thus constituted a contract under seal for which the applicable statute of limitation is 20 years. OCGA § 9-3-23. Accordingly, the trial court [erred in dismissing plaintiffs complaint because of expiration of the statute of limitation prescribed by OCGA § 11-2-725].” Frank Maddox Realty &c. v. First Nat. Bank of Atlanta, 196 Ga. App. 114, 115 (1) (395 SE2d 326).

Contrary to any inference in the special concurrence, it would not be prudent to suggest that defendants waived any defense of the statute of limitation. Defendants still have the right to assert such a defense (albeit unlikely in light of the disposition of this appeal) via motion to dismiss, motion for summary judgment, as well as special plea in their answer. Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 345 (2a) (173 SE2d 723). See also Frank Maddox Realty &c. v. First Nat. Bank of Atlanta, 196 Ga. App. 114, 115 (1), supra. The quote drawn by the special concurrence from Searcy v. Godwin, 129 Ga. App. 827, 829 (1) (201 SE2d 670), is not germane to the circumstances now before this court. Unlike the defendants in the case sub judice, the defendant in Searcy no longer had the option of filing a plea of the statute of limitation as he failed to do so before trial.

2. We reject plaintiffs contention that the trial court erred in denying its motion for summary judgment. To this extent, plaintiff presented no evidence piercing the defenses asserted in defendants’ answer. See OCGA § 11-9-504 (3); Richard v. Fulton Nat. Bank, 158 Ga. App. 595, 596 (281 SE2d 338). Further, plaintiff presented insufficient evidence to rebut the presumption that the value of the collateral is equal to the debt. Richard v. Fulton Nat. Bank, 158 Ga. App. 595, 596, supra. Accordingly, the trial court was correct in finding that plaintiff “failed to establish the material facts of notice to the debtor of the disposition of the collateral, commercially reasonable manner of sale, and commercially reasonable terms of sale.”

3. It is unnecessary to address plaintiff’s remaining enumeration of error in light of our holding in Division 1 of this opinion.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Smith, J., concur specially.

Smith, Judge,

concurring specially.

I concur specially because the trial court decided a question not yet before it, and it is not the function of this court to compound the error by addressing the merits of a question that should not have been addressed below at this stage of the litigation. Specifically, I do not reach the question of which, if any, statute of limitation could apply in this case, because no defense based on a statute of limitation has yet been raised below by the appellees.

Statutes of limitation provide affirmative defenses to an action, OCGA § 9-11-8 (c), and “[a] defendant may not avail himself of an affirmative defense which he failed to properly present.” Searcy v. Godwin, 129 Ga. App. 827, 829 (201 SE2d 670) (1973). “ ‘The bar of the statute (of limitation) is a privilege to the defendant, the benefit of which he may elect to take advantage of or waive as he pleases. The statute in most instances operates upon the remedy and not the right; and hence if the defendant chooses not to raise the objection of the lapse of the statutory time, the right will be enforced, and will result in a judgment which will possess all the attributes of, and be as effective as, a judgment rendered within the statutory period.’ [Cit.]” Id.

I am aware of no authority establishing that the affirmative defense created under OCGA § 11-2-725 (1) may not be waived. Moreover, it is not within the trial court’s discretion to assert an affirmative defense sua sponte on the defendant’s behalf, and that is precisely what happened here. Cf. McLanahan v. Keith, 239 Ga. 94 (236 SE2d 52) (1977). Even if this were not so, it remains that “[t]he purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense.” Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 346 (2) (a) (173 SE2d 723) (1970). A sua sponte dismissal without notice cannot serve this purpose.

Contrary to the majority’s unsupported assertion, I have in no way suggested that the appellees are totally precluded from raising the defense of the applicable statute of limitation. I observe only that they are likewise not precluded from waiving its protection and that it is not for the trial court to assert defenses in this case on behalf of the appellees.

The trial court erred in dismissing this case based on an affirmative defense that was never raised by the appellees. For this reason I concur with the result reached by the majority in Division 1.

I am authorized to state that Presiding Judge Pope joins in this special concurrence.

Decided March 15, 1995.

Frederick J. Hanna, Elizabeth C. Whealler, for appellant.

Robert C. Cheatham, Joyce H. Cheatham, pro se.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A94A2383.
    ALAMO RENT-A-CAR, INC. v. HAMILTON et al.
    (455 SE2d 366)
   Pope, Presiding Judge.

Plaintiffs, Alice B. Hamilton and her husband, Billy C. Hamilton, sued defendants, Thomas Caine, Betty James, Otis Grant and Alamo Rent-A-Car, Inc., after Alice Hamilton was injured in an automobile collision. Alamo appeals from the trial court’s denial of its motion for summary judgment.

The evidence in this case, construed in a light most favorable to plaintiffs, demonstrates the following: On February 20, 1991, Alice Hamilton was struck by a car driven by Grant. Grant was charged with driving under the influence, driving left of the centerline and with having no driver’s license or proof of insurance. He subsequently was convicted, for the third time in five years, of driving under the influence. As a result of the collision, Mrs. Hamilton suffered numerous injuries, including a compound fracture of her right leg.

The car that Grant was driving at the time of the collision was owned by Alamo. Two days before the collision, Alamo had rented the car to Caine, who testified that the car was rented for James to use to go back and forth to work. Although James could not rent the car herself because she did not have a credit card, it is undisputed that she was listed on the Alamo Rental Agreement (Agreement) as an additional authorized driver. At the time Caine rented the car, Alamo did not check Caine’s or James’ driving records. Alamo also did not verify whether Caine had liability insurance. However, the record shows that Alamo did offer “spot” insurance to Caine, who decided only to purchase a collision damage waiver. Moreover, the record shows that Caine did have liability insurance of his own when he rented the car. Although Grant was not an authorized driver under the Agreement, on the day of the incident, James apparently gave Grant permission to use the car. Caine testified that he never authorized Grant to drive the car, and did not even know Grant at the time of the collision. Nothing in the record indicates that Alamo knew Grant would be driving the car.

Plaintiffs filed their original complaint for damages and loss of consortium on June 17, 1991. In that complaint, plaintiffs alleged that Alamo was liable to them because it owned the car that struck Alice Hamilton, and it negligently entrusted the car to Caine and James without inquiring into their driving records or determining the purpose for which the car would be used. Plaintiffs later amended their complaint to include additional allegations of negligent entrustment based on Alamo’s failure to verify whether Caine and James had liability insurance or otherwise require them to purchase “spot” insurance pursuant to OCGA § 40-9-102. Alamo answered, denying any liability, and subsequently filed a motion for summary judgment. The trial court denied Alamo’s motion and we granted Alamo’s application for interlocutory review. In its sole enumeration, Alamo contends that the trial court erred in denying Alamo’s summary judgment motion. We agree.

In Georgia “[ojwnership of a vehicle alone is not sufficient to establish an owner’s liability. [Cits.]” Grant v. Jones, 168 Ga. App. 690, 691 (310 SE2d 272) (1983). There must be more, such as a master-servant or agency relationship. See Cotton v. Toole, 183 Ga. App. 547-548 (1) (359 SE2d 368) (1987); Shmunes v. Gen. Motors Corp., 146 Ga. App. 486, 488 (3) (246 SE2d 486) (1978). Although it is undisputed in this case that no master-servant or agency relationship is present, when Alamo rented the car to Caine a bailment was created. See Hertz Driv-Ur-Self Stations v. Benson, 83 Ga. App. 866 (65 SE2d 191) (1951). An owner/bailor may be held liable for negligent entrustment of a vehicle premised upon general tort or statutory grounds. See Medlock v. Barfield, 90 Ga. App. 759, 760 (84 SE2d 113) (1954); see also OCGA § 44-12-63; Hertz, supra, 83 Ga. App. at 874. However, under the facts of this case, no such liability exists. “[L] ¡ability [for negligent entrustment] flows from the negligent act of the owner permitting another to drive [its] vehicle when the owner knows the driver to be either incompetent or habitually reckless. . . .” (Citations omitted.) Chrostowski v. G & MSS Trucking, 198 Ga. App. 140, 143 (3) (401 SE2d 53) (1990). Moreover, to recover under this theory, an owner’s “ ‘negligence must concur, as part of the proximate cause, with the negligent conduct of the driver on account of his incompetency and recklessness.’ ” Cotton v. Toole, supra, 183 Ga. App. at 548 (2). In this case, no such concurrence exists. Any negligence on Alamo’s part in failing to inquire as to Caine’s or James’ driving records or their intended use for the vehicle was superseded here by the unauthorized criminal acts of Grant.

Plaintiffs are correct in their contention that under OCGA § 40-9-102 Alamo had a duty to either verify that the person it rented the car to (Caine) had his own liability insurance or otherwise require said person to purchase “spot” liability insurance before turning the car over to him. See Atlanta Rent-A-Car v. Jackson, 204 Ga. App. 448, 450-451 (419 SE2d 489) (1992). However, in this case, Alamo’s failure to comply with OCGA § 40-9-102 was not the cause of any harm to plaintiffs. The mandate of OCGA § 40-9-102 “is in the nature of a bond to guarantee the public against damages by some irresponsible renter of a car of the U-Drive-It.” Continental Cas. Co. v. Owen, 90 Ga. App. 200, 209 (2) (82 SE2d 742) (1954). Its purpose is not specifically to prevent tortious acts by the operators of rental vehicles, but rather to assure that such operators are not uninsured. In this case there is uncontradicted record evidence that at the time Caine rented the car he did in fact have liability insurance of his own. Moreover, under the express terms of the Agreement, Alamo also provided Caine with “liability insurance that [covered] bodily injury, death, or property damage ... up to the minimum requirements of State law.” Additionally, there is unrefuted record evidence that Alamo also maintained liability insurance on the car as required by Section 33-34-4 of the Georgia Motor Vehicle Accident Reparations Act. Consequently, the object of OCGA § 40-9-102 has been met in this case. See Rabinovitz v. Accent Rent-A-Car, 213 Ga. App. 786, 788-789 (446 SE2d 244) (1994) (McMurray, P. J., concurring specially).

Decided March 15, 1995.

Parker, Johnson, Cook & Dunlevie, William C. Tinsley II, Christopher W. Derrick, for appellant.

Johnny W. Mason, Jr., Cuffie & Smith, Thomas F. Cuffie, Edward M. Fitts, for appellees.

In light of the above, we hold that the trial court erred in denying summary judgment to Alamo because there is no genuine issue of material fact left to be resolved regarding any of plaintiffs’ claims against it.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A94A2462.
    PERRY v. THE STATE.
    (455 SE2d 607)
   Smith, Judge.

Christopher Kenneth Perry was charged with two counts of aggravated child molestation, OCGA § 16-6-4 (c). The trial court granted Perry’s motion for directed verdict as to one of the counts, and a jury convicted Perry of child molestation for the facts alleged in the remaining count. Perry’s motion for new trial was denied, and he appeals.

1. In his first enumeration of error, Perry contends the trial court erred in forbidding him sua sponte to examine prospective jurors as to whether any of them “belong to any social groups or any organizations or clubs, whether you’re actively involved in them or you just pay your membership dues to them.” We are constrained to agree.

(a) We first address the State’s assertion that Perry failed to preserve this issue for appellate review. “Where, as here, the trial court . . . make[s] ... a sua sponte ruling, an appellant is not required to attempt to have the trial court reconsider its adverse ruling as a condition precedent to enumerating that sua sponte ruling as error on appeal.” Ford v. State, 200 Ga. App. 376, 377 (408 SE2d 166) (1991). Perry correctly argues that Ford states the law applicable to this case, and the error is therefore subject to appellate review.

(b) On the merits, “OCGA § 15-12-133 gives both the State and the defendant an absolute right to examine prospective jurors about ‘the relationship or acquaintance of the juror with the parties or counsel therefor . . . and religious, social and fraternal connections of the juror.’ Cowan v. State, 156 Ga. App. 650, 651 (275 SE2d 665) (1980).” (Emphasis supplied.) Mize v. State, 190 Ga. App. 166 (378 SE2d 392) (1989). The ability to elicit such information is a “substantial right” granted by statute. Cowan, supra.

It is true the trial court did not forbid all questioning of the jurors on their affiliations in “social groups,” “organizations,” or “clubs,” and it is likewise true the question posed by defense counsel was inartfully framed and may have been unlikely, as asked, to elicit useful information. Even so, however, the presumptive effect of the court’s ruling was to abridge Perry’s absolute right to seek information regarding a juror’s “religious, social, and fraternal connections” of any kind.

OCGA § 15-12-133 is both explicit and general in its terms. Indeed, it is specific in its generality in establishing that “the religious, social, and fraternal connections of the juror” constitute matters that might “illustrate any interest of [a] juror in the case.” Also, “ ‘[i]t should be kept in mind that the larger purpose of (this) Code section is to enable counsel to identify those prospective jurors counsel desires to remove from the panel by use of peremptory strikes as opposed to challenges for cause.’ [Cit.]” Mitchell v. State, 176 Ga. App. 32, 34 (3) (335 SE2d 150) (1985).

If it were within the trial court’s discretion to limit Perry to questions regarding specific affiliations that he reasonably anticipated might suggest bias on the part of the prospective juror, we would readily hold that such discretion was not abused. However, applying a plain reading of OCGA § 15-12-133, the trial court exceeded its authority and committed error in preventing Perry from seeking the general information he was entitled to have under that statute.

“Where a defendant in a criminal case has been deprived of his or her rights under OCGA § 15-12-133 to examine prospective jurors on voir dire, the burden is on the State to show that the error was harmless. This holding applies even though the defendant did not exhaust his or her peremptory strikes.” (Citations and punctuation omitted.) Mitchell, supra. The State does not suggest that the error was harmless in this case. Perry’s conviction therefore must be reversed.

2. Perry was charged by indictment with committing “the immoral and indecent act of placing his mouth on the anus of [the victim], a female child under the age of fourteen years, with the intent to satisfy the sexual desires of the accused.” The evidence presented at trial was sufficient for a jury to find that Perry did commit this offense beyond a reasonable doubt and that this offense constituted child molestation under OCGA § 16-6-4 (a). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We agree with Perry that since no physical injury was alleged, he could not be convicted of aggravated child molestation based on the accusation made against him in the indictment. Although the State erroneously charged Perry under OCGA § 16-6-4 (c), this does not mean, however, that the jury could not properly convict him of child molestation as charged by the trial court. Davis v. State, 214 Ga. App. 360, 361 (2) (448 SE2d 26) (1994).

3. Perry’s remaining enumerations present no claim of error likely to be repeated upon retrial. We therefore do not address them.

Judgment reversed.

Pope, P. J., concurs. McMurray, P. J., con curs in the judgment only.

Decided March 15, 1995.

Roger L. Curry, for appellant.

T. Joseph Campbell, District Attorney, Sharon A. Fox, Assistant District Attorney, for appellee.

       The trial court’s ruling from the bench was as follows: “I’m not going to let you ask that question. It’s too broad. If there’s some particular group you’re interested in, some particular membership, but, you know, if they’re members of some riding club, what possible relevance can it have? Now, you can narrow that one down a little bit. You figure out what kind of groups you’re interested in and ask them that, but I’m not going to let you ask them are you a member of a group. That’s just far too broad. There’s no way you can expect to elicit any relevant information out of a question like that.” Perry’s counsel responded: “I don’t mean to be agitating the Court in asking that, but again, as the Court indicated in its last instructions to me, if the question is broader, I’m more likely to get a response than if I pinpoint it.” The court replied: “You narrow it down. I’m not going to let you ask that question.”

       Earlier, defense counsel had asked the jurors, “Have any of you ever been the victim of a sexual abuse case, either as a child or as an adult?” This question apparently was asked without preamble and without any prior request for individual, sequestered voir dire or some other means of eliciting this information with less potential for embarrassing jurors and inhibiting their responses. The trial court, not surprisingly, halted the questioning and, out of the jury’s hearing, suggested to defense counsel that he would “find people very reluctant to raise their hand, you know, and make statements about a child molestation” and encouraged him to “rephrase that a little bit.” Significantly, though, the trial court also said, with reference to this earlier question, “[I]f you want to ask that question, I’ll let you ask it.”

       As Davis suggests, upon retrial references to “aggravated” child molestation and “16-6-4 (c)” should be removed from the indictment.


author: Ruffin, Judge.

text:
    A94A2512.
    COWETA COUNTY IMPOUND & STORAGE, INC. v. SECURITY PACIFIC FINANCIAL SERVICES.
    (455 SE2d 370)
   Ruffin, Judge.

Coweta County Impound & Storage, Inc. (“Coweta”) appeals from the trial court’s grant of summary judgment and a writ of possession to Security Pacific Financial Services (“Security Pacific”).

The owner of a mobile home park filed eviction proceedings against a tenant and obtained a writ of possession to property on which the tenant’s mobile home was placed. At the park owner’s direction, Coweta removed the tenant’s mobile home and stored it at Coweta’s impound lot. After Coweta learned through the Motor Vehicle Division of the Georgia Department of Revenue that Security Pacific had a security interest in the mobile home, Coweta notified Security Pacific of its possession of the mobile home and requested payment for impound, towing and storage expenses. Security Pacific refused Coweta’s demand for payment in writing and explained, referring to a retail installment contract for the mobile home which had been assigned to Security Pacific, that it was under no obligation to pay Coweta because of its superior perfected security interest in the mobile home. Since the owner of the mobile home was then in default of the retail installment contract, Security Pacific demanded Coweta’s return of the mobile home. When Coweta refused, Security Pacific filed the instant action for a writ of possession, posted a $2,000 bond and took possession of the mobile home.

Security Pacific moved for summary judgment on the ground that under OCGA § 11-9-310, its perfected security interest in the mobile home is superior to Coweta’s lien for moving fees and storage expenses under OCGA § 44-7-59 which is of no higher priority than a mechanics lien. In opposition to the motion, Coweta argued it had the option of asserting its lien under the Abandoned Motor Vehicle Act.

1. In its first two enumerations of error, Coweta contends the trial court erred in failing to consider evidence that mobile homes are motor vehicles under the Abandoned Motor Vehicle Act (OCGA § 40-11-1 et seq.) and refusing to allow Coweta to assert its rights under that statute.

Decided March 15, 1995.

R. Michael Rickies, Sr., for appellant.

Thompson, O’Brien, Kemp & Nasuti, R. Michael Thompson, John J. McCloskey, for appellee.

Pretermitting a determination as to whether the mobile home is a motor vehicle under Code Section 40-11-1 (2), we find that the Abandoned Motor Vehicle Act is not applicable in the instant case because the mobile home was not “abandoned” as provided in the statute. See OCGA § 40-11-1 (1). The mobile home was not left for repair, was not left unattended on a public street and was not towed onto private property at the request of a law enforcement officer. Nor is there evidence that the mobile home was towed onto private property at the request of a property owner or otherwise left unattended on private property for 30 days or more without anyone’s having made a claim thereto. See OCGA § 40-11-1 (1) (D), (E). The writ of possession was obtained on January 13, 1994, and on January 27, 1994, Coweta moved the mobile home to its impound lot. On February 9, 1994, Security Pacific demanded return of the mobile home, and on February 18, 1994, Security Pacific filed the instant action for a writ of possession, thus demonstrating a claim within 30 days of the first writ of possession and another claim within 30 days of Coweta’s removal of the mobile home.

The foregoing demonstrates the mobile home in the instant case did not satisfy one of the basic requirements of the Abandoned Motor Vehicle Act. Accordingly, the trial court did not err in refusing to allow Coweta to proceed under the statute. Coweta’s arguments in this respect to the contrary are without merit.

2. Coweta contends the trial court’s decision allows Security Pacific to circumvent an innocent creditor and, as a consequence, Security Pacific is unjustly enriched. Coweta also argues that the decision is contrary to public policy because it would inhibit future evictions of mobile homes. However, Coweta is not without remedy. Under OCGA § 44-7-59, transportable housing is removed at the expense of the tenant. In addition, the statute imposes a lien upon such housing for moving fees and storage expenses in favor of towing and storage companies performing such services which may be foreclosed in the same manner as mechanics liens.

3. Based on the foregoing, we need not address Coweta’s remaining enumerations of error.

Judgment affirmed.

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


text:
    A94A2734.
    MAHER v. THE STATE.
    (455 SE2d 377)
   Ruffin, Judge.

Edward James “Trey” Maher was convicted by a jury of two counts of child molestation, two counts of aggravated child molestation and one count of statutory rape. The offenses occurred over a span of three years while Maher lived with the five and eleven-year-old victims and their mother. Maher appeals from the denial of his motion for new trial.

Viewed in a light most favorable to the verdict, the evidence at trial showed that Maher regularly included the two victims in what the five-year-old victim described as the “rape game.” During the “rape game,” the two victims, their mother, Maher and other men would sit in a circle and perform various acts of anal and vaginal intercourse on one another. The two victims would either be forced to participate in these acts or forced to be present while the others performed the acts.

The evidence showed that Maher tied the five-year-old to a chair in the center of the circle, put his penis in her mouth and put his hands on her breast and vagina. With regard to the eleven-year-old victim, the evidence showed that Maher had sexual intercourse with her repeatedly and placed his penis in her mouth.

Dean Stodghill, a social services supervisor for the Ben Hill County Department of Family & Children Services, testified on behalf of the State. Twice during her testimony, Stodghill stated that the older victim had been sent to Kentucky to be the “girl friend” of David Thompson, an individual who regularly participated in the “rape game.” While Maher did not object to the first reference to the events that took place in Kentucky, after the second such reference, Maher objected on the ground that what happened in Kentucky was irrelevant. After hearing the State’s explanation that the evidence was part of “the continuing horrendous experience that [Maher] participated in,” the court found the testimony relevant and overruled the objection. Later in the trial while cross-examining the victims’ mother, Maher’s attorney elicited even more extensive testimony concerning the victim’s living with Thompson in Kentucky.

1. Maher contends the trial court erred in allowing the testimony concerning Thompson because it lacked any relevance or probative value and operated only to substantially prejudice the jury. “Assuming arguendo the trial court [improperly admitted the testimony], the error would have been harmless.” Scott v. State, 206 Ga. App. 23, 26 (1c) (424 SE2d 328) (1992). By the time Maher interposed any objection, the jury had already heard similar testimony from Stodghill which was admitted without challenge. See id. “ ‘All evidence is admitted as a matter of course unless a valid ground of objection is (timely) interposed.’ . . . [Cit.]” Id. Moreover, Maher’s own attorney elicited much more extensive testimony than the State concerning this matter. “At most, the [testimony objected to] would be only cumulative of the [other] testimony of these two witnesses concerning [Thompson]. Evidence is harmless where admissible evidence of the same fact is before the jury. [Cits.]” Id. Accordingly, “any error in overruling defendant’s objection would have been harmless. [Cit.]” Gibby v. State, 213 Ga. App. 20, 22 (2b) (443 SE2d 852) (1994).

Decided March 15, 1995.

Tammy L. Ives-Abell, for appellant.

John C. Pridgen, District Attorney, Kathryn 0. Fallin, Assistant District Attorney, for appellee.

2. Maher also contends that the evidence was insufficient to establish his guilt beyond a reasonable doubt. Viewing the evidence in the light most favorable to the verdict, we find that there was sufficient evidence for the jury to find Maher guilty beyond a reasonable doubt of the offenses charged. Stewart v. State, 210 Ga. App. 474 (9) (436 SE2d 679) (1993); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A94A2508.
    ABDALLA v. DDCB, INC.
    (455 SE2d 598)
   McMurray, Presiding Judge.

Plaintiff DDCB, Inc. brought this action on a note, alleging that defendant Michael J. Abdalla was “indebted to the Plaintiff in the sum of $15,000.00 as a balance due under the terms of a promissory note between the parties dated August 16,1984, which contract is . . . in default.” Plaintiff also sought “$1,525.00” as reasonable OCGA § 13-1-11 attorney fees and accrued interest of “$7,633.62.” Defendant’s amended answer contains, inter alia, a general denial, a defense based upon the statute of limitation, a claim of both payment and set-off, and a purported “counter-claim” for OCGA § 9-15-14 costs of litigation. In response to discovery requests served with the complaint, defendant denied all requests for admissions. He averred that he “can not locate his records at this time and consequently can not accurately . . state the “amount owed to the Plaintiff by the Defendant according to the records of the Defendant.” Defendant’s entire response to requests for the production of documents consisted of the following: “This Defendant shows that at this time he cannot locate any of the documents called for in the Plaintiff’s Request.”

After this discovery, plaintiff moved for summary judgment, relying on the note itself. The note was in the principal amount of $15,000 with interest at 11 percent, payable “as follows: Interest only payable quarterly ... to the fourth anniversary date of the note; principal and remaining accrued interest being due and payable on the fourth anniversary date of the note.” The note further provided that it was “subject ot [sic] a right to set off ... , as contained in Seller’s Warranty.” Defendant opposed the motion with his affidavit. He deposed: “I have made a number of payments to the Plaintiff on the indebtedness and Promissory Note. . . .” Defendant submitted a letter from Gerald N. Stephens in the stated capacity as plaintiff’s Vice President-Secretary-Treasurer dated July 22, 1988. This letter recites in pertinent part: “In accordance with our discussion on July 19, 1988, effective August 15, 1988, we will expect to receive monthly payments of $250.00 from you against your note dated August 16, 1984, which is payable to DDCB, Inc.” According to defendant’s affidavit, this letter is proof that “some of these payments . . . were made by [defendant] and received . . .’’by plaintiff. Defendant further deposed that he was entitled to set-offs in amounts unspecified for various breaches of warranty and claimed that allowable set-off amounts “together with the payments made by the Defendant equal or exceed any amount due under said note.”

The trial court granted plaintiff’s motion for summary judgment and this appeal followed. Held:

Defendant enumerates the grant of summary judgment, arguing that his affidavit shows the existence of material factual issues. We agree.

On consideration of plaintiff’s motion for summary judgment, “the burden is on the movant to prove no genuine issue of fact remains, the evidence is construed in favor of the respondent, and his evidence is treated with considerable indulgence. Collins v. Newman Machine Co., 190 Ga. App. 879, 882, 884 (380 SE2d 314). ‘When signatures (on a note) are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.’ (Emphasis supplied.) OCGA § 11-3-307 (2). [In the case sub judice, once] plaintiff established execution of a note, the burden was on the defendant to establish an affirmative defense (Jay Gleason Advertising Svc. v. Gleason, 193 Ga. App. 445 (1) (388 SE2d 43)), but on plaintiff’s motion for summary judgment, it was [DDCB, Inc.’s] burden to establish the non-existence of a genuine issue of fact as to each affirmative defense [; its] . . . papers are carefully scrutinized and all doubts are resolved against [it], while [defendant’s] papers are treated with considerable indulgence. First Rome Bank v. Reese Oil Co., 206 Ga. App. 667 (426 SE2d 384). See Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474).” Maddox v. Leaphart, 214 Ga. App. 340, 342 (3) (447 SE2d 694).

In the case sub judice, defendant amended his answer to allege that “the actual payments made by the Defendant together with his right of set-off . . . equal or exceed any claim Plaintiff might have.” “[P]ayment,” one of the affirmative defenses itemized at OCGA § 9-11-8 (c), may be raised by amendment. Security Ins. Co. of Hartford v. Gill, 141 Ga. App. 324, 326 (233 SE2d 278). The question for determination becomes whether defendant’s oral evidence of payment and set-off in unspecified sums is sufficient to rebut plaintiff’s prima facie right to recover on the note.

There is nothing in this record to document defendant’s performance of his obligations under the note or his entitlement to set-off in any specific amount. Moreover, the letter relied upon by defendant proves nothing in the way of payment. Defendant proffered no canceled checks, no repair bills, and no letters asserting a breach of warranty. Plaintiff urges that defendant has “waived said defenses,” by responding to its motion in an untimely fashion.

“There is no such thing as a ‘default summary judgment.’” McGivern v. First Capital Income Properties, Ltd., 188 Ga. App. 716, 717 (1) (373 SE2d 817). At trial, the trier of fact would be authorized to construe this circumstance against defendant. OCGA § 24-4-22. See also OCGA § 24-5-5. However, parol evidence is admissible to establish lost papers, if the proponent has been diligent. OCGA §§ 24-5-2 and 24-5-21. Moreover, plaintiff did not supplement its motion to deny payment or controvert defendant’s deposition in any way. The note expressly grants defendant a right of set-off for breach of warranty. Compare Brunson v. Bridges, 130 Ga. App. 102, 103 (1) (202 SE2d 553). Accordingly, plaintiff’s motion fails to establish the nonexistence of every material fact. On the present posture of the record as designated by defendant and transmitted to this court, the trial court erred in granting plaintiff’s motion for summary judgment. Maddox v. Leaphart, 214 Ga. App. 340, 342 (3), supra.

Judgment reversed.

Pope, P. J., concurs. Smith, J., concurs in the judgment only.

Decided February 22, 1995

Reconsideration denied March 16, 1995.

Glenville Haldi, for appellant.

Ross Gelfand, for appellee.

       We do not consider the October 6, 1994, affidavit of Gerald Stephens, with exhibits, attached to plaintiff’s brief on appeal as it does not appear that these matters were properly of record and considered by the trial court in its order of May 16,1994. “Exhibits contained in an appellate brief which do not appear in the record or transcript cannot be considered by this court and afford no basis for reversal. [Cits.]” Strickland v. American Motorists Ins. Co., 149 Ga. App. 690, 691 (256 SE2d 92).


text:
    A94A1964.
    THE STATE v. HULSEY.
    (455 SE2d 398)
   Pope, Presiding Judge.

In its sole enumeration of error the State asserts the trial court erred in granting defendant’s motion to dismiss his indictment based on his plea of former jeopardy. We agree and reverse.

Defendant Hulsey secured information about a man named Roy Sanford and used this information to obtain a driver’s license in Sanford’s name. When the defendant was arrested for driving under the influence, he produced this license. Defendant also secured a loan from ITT Financial Services using Sanford’s name and, through a fraudulent credit application, used Sanford’s name to purchase jewelry from Friedman’s jewelry store.

The Friedman’s forgery matter was bound over to the Fulton County Grand Jury by the Roswell City Court, and defendant was indicted. The traffic charges and ITT case were bound over to the Fulton County Grand Jury by the Alpharetta City Court. The ITT forgery was reduced to a misdemeanor (theft by deception), and was transferred along with the traffic offenses to the State Court of Fulton County. The assistant solicitor and the defendant’s trial attorney both mistakenly believed that the Friedman forgery was the one that had been reduced to a misdemeanor. Pursuant to a plea agreement between the assistant solicitor and defendant, the jewelry was returned to Friedman’s jewelry store. Defendant entered a plea of guilty to the traffic offenses. The theft by deception charge, which formerly was the ITT forgery but which the attorneys believed was the Friedman forgery, was placed on an inactive docket.

Defendant contends that the Friedman prosecution is now barred because the assistant solicitor and defendant’s attorney negotiated a deal that incorporated the Friedman charge. However, the cases transferred from the Superior to the State Court of Fulton County involved offenses bound over from the Alpharetta City Court, and the Friedman case originated from Roswell City Court. Thus, any agreement between defendant and the assistant solicitor regarding the Friedman case was beyond the power of the State Court’s assistant solicitor, because jurisdiction over that case was never transferred from the Superior Court. See generally State v. Hanson, 249 Ga. 739, 744-747 (295 SE2d 297) (1982). The assistant solicitor did not have authority to make a deal on the Friedman matter, and any attempt to do so was void.

Defendant also asserts OCGA § 16-1-7 (b) is a bar to any further action by the state. We disagree. OCGA § 16-1-7 (b) provides that “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.” See also Harrell v. State, 196 Ga. App. 101, 103 (395 SE2d 598) (1990). “The phrase ‘the same conduct’ in this statute has been used interchangeably with the phrase ‘the same transaction.’ ” (Citations and punctuation omitted.) Harrell, 196 Ga. App. at 103 (2). Here, the Friedman forgery did not arise from the same transaction as any of the Alpharetta charges, as it involved different parties, circumstances, locations, and times. It follows that OCGA § 16-1-7 (b) is not a bar to the State in proceeding with these charges.

Nor is this prosecution barred by OCGA § 16-1-8 (b) (1). “OCGA § 16-1-8 (b) provides that a prosecution is barred if the accused was formerly prosecuted for a different crime ... if such former prosecution: (1) resulted in either a conviction or acquittal and: (i) the subsequent prosecution is for a crime of which the accused could have been convicted on the former prosecution; or (ii) is for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge); or (iii) is for a crime which involves the same conduct, unless (A) each prosecution requires proof of a fact not required on the other prosecution or (B) the crime was not consummated when the former trial began.” (Citations and punctuation omitted.) Cates v. State, 206 Ga. App. 694, 695-696 (426 SE2d 576) (1992). There is no bar under subpart (i) as the defendant could not have been convicted of the Friedman forgery in the State Court due to lack of jurisdiction. Moreover, there is no bar under subpart (ii) because there is no evidence to suggest that the assistant district attorney actually handling the case knew of both forgeries or the traffic matters. See McCannon v. State, 252 Ga. 515, 517-518 (315 SE2d 413) (1984); Cates, 206 Ga. App. at 694-695. And there is no bar under subpart (iii) because each case required proving facts not required in the other case. Id. at 696.

Thus, the trial court erred in dismissing the indictment based on double jeopardy.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.

Decided March 16, 1995.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Charles W. Smegal, Assistant District Attorneys, for appellant.

Robert W. Chestney, Charles T. Magarahan, McReynolds & Welch, J. Michael Welch, for appellee.


author: Andrews, Judge. Beasley, Chief Judge,

text:
    A94A1971.
    HARRIS v. THE STATE.
    (455 SE2d 387)
   Andrews, Judge.

The appellant, Michael Harris, was convicted of burglary. On appeal, he complains of various evidentiary rulings and the trial court’s jury instructions.

During the early afternoon of September 17, 1993, the next-door neighbor of the victim looked out his window and noticed a man coming off the victim’s porch, carrying the bicycle of the victim’s son. He asked the man what he was doing and the stranger replied that he lived there. When the neighbor indicated that he knew that was untrue, the stranger yelled out “Mike.” This individual disappeared while the neighbor called for the police.

Police officers who responded to the call patrolled the area and observed Harris on a nearby street, wearing a tee shirt and blue shorts and carrying a black and silver duffle bag bearing the “Wilson” sporting goods logo. One officer stopped Harris and noticed that he was slightly out of breath and perspiring heavily as if he had been jogging. After another officer arrived at the scene, Harris identified himself and showed them a tattoo on his chest with the name “Michael” on it, which reminded one of the officers of the neighbor’s report about the individual who called out for “Mike.” They obtained Harris’s consent to search the duffle bag and found items of clothing and a pillow case; they also felt something hard in the bottom of the bag but did not check to see what it was. Harris explained that he had picked up the clothing from his cousin, and the officers allowed him to leave.

However, the officers stopped Harris again moments later when one of the officers remembered that a video game may have been taken during the burglary. They again obtained Harris’s permission to search the duffle bag, and discovered a cordless telephone in the bottom of the bag. Because the victim had also reported a cordless phone missing from her home, the officers then arrested Harris and transported him to the victim’s house. The victim identified the cordless telephone and the pillow case, and also indicated that the clothing worn by Harris belonged to her son.

1. The state was allowed to present evidence of similar transactions solely by producing certified copies of indictments and convictions obtained against Harris in 1980, 1984, and 1990 for burglaries of residential dwellings in Richmond County. Harris contends that the admission of such evidence was error, and we are constrained to agree.

“[I]n its presentation to the trier of fact, the state must do more than merely introduce a certified copy of a conviction and/or indictment into evidence. The state must present the trier of fact with evidence establishing both that the accused committed an independent offense or act and that the connection and/or similarity between that offense or act and the crime charged is such that proof that the accused committed the former tends to prove that the accused also committed the latter.” Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991).

At a pretrial hearing to determine the admissibility of similar transaction evidence, the prosecutor may establish a prima facie case of admissibility by introducing certified copies of the defendant’s previous convictions and stating in his place the relevant facts of the conviction, but such does not satisfy the state’s obligation to present proof on that issue at trial. Stephens v. State, 261 Ga. 467, 468-469 (6) (405 SE2d 483) (1991).

In the instant case, the state only presented certified copies of three previous indictments of Harris for burglary bearing the finding of guilt or a guilty plea by Harris. Under these circumstances, the state failed to satisfy the requirements of Stephens and Williams regarding the showing of similarity, and we are unable to dismiss the error as harmless. See Faulkner v. State, 206 Ga. App. 3 (424 SE2d 287) (1992).

2. Harris’s remaining enumerations of error are without merit.

Judgment reversed.

Johnson, J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur because even if the State showed sufficient indicia of similarity between the prior convictions and the incident on trial, the State failed to affirmatively show that the evidence was offered “not to raise an improper inference as to the accused’s character, but for some appropriate purpose.” Williams v. State, 261 Ga. 640, 642 (2b) (409 SE2d 649) (1991).

As to similarity, the documents admitted show that all four of Harris’ prior crimes were burglaries (two in 1980, one in 1984, and one in 1990), which were perpetrated in Richmond County and were at residences. In each case Harris made the unauthorized entry with the intent to commit a theft. The prior burglaries were committed close in time to each other and to the one on trial, discounting the periods of incarceration. It is true that there was no evidence that the modus operandi was similar to that used in this case.

The indicia of similarity pointed out in Moore v. State, 202 Ga. App. 476, 479 (2) (414 SE2d 705) (1992), are not sufficiently described to establish admissibility of the evidence here. Moore conceded similarity, and the court merely pointed out in dicta the distinction between the prior acts and those found inadmissible in Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991). The degree of similarity must be such that “ ‘proof of the former tends to prove the latter.’ ” Chastain v. State, 260 Ga. 789, 791 (3) (400 SE2d 329) (1991).

Stephens and Williams, supra, do not absolutely prohibit using just the indictment and conviction when they do show sufficient similarity for the purpose for which they are admitted. See Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638) (1992); Wheat v. State, 205 Ga. App. 388 (2) (422 SE2d 559) (1992); Dean v. State, 211 Ga. App. 28, 31 (4) (438 SE2d 380) (1993). See also Adams v. State, 208 Ga. App. 29, 33-37 (3) (430 SE2d 35) (1993) (physical precedent only). It depends on what is contained therein and the purpose for which such evidence is offered.

The State introduced the convictions to show intent and course of conduct, that defendant followed a common design and had a bent of mind towards committing burglaries such as the one on trial, and motive. These documents were presented in the State’s case-in-chief. The defense, presented thereafter through defendant’s testimony alone, was that defendant was found in possession of items from the victim’s house because he found the duffle bag and contents at a dumpster nearby and that the clothes he was wearing, which the victim claimed were taken from her house, had been purchased by him previously. Thus the defense was that he was not involved in the burglary, was an innocent and unwitting possessor of certain stolen items, and that others claimed to have been stolen were his own. This was similar to what he had told the officers, which was part of the State’s evidence.

Identity was the issue, that is, whether defendant was involved in the burglary with the person seen or as the burglar himself. The evidence was not admitted for that purpose and the jury was not charged that this was one of the limited purposes for which it was admitted. The State’s attorney specifically agreed with the trial court’s statement that the State was not trying to prove identity through the prior transactions.

Decided March 16, 1995.

K. Emerson Gillard, for appellant.

Daniel J. Craig, District Attorney, Joseph R. Neal, Jr., Assistant District Attorney, for appellee.

It is true that the State had to prove specific intent, but defendant had not told the officers when interviewed on the street that he had entered the residence with a legitimate intent. The prior incidents did not constitute evidence necessary to prove intent; possession of the stolen articles and the implausible explanation given by defendant when questioned proved that. Instead, they tended to prove that the explanation of innocence given the officers was at least suspect because defendant was a house burglar of long standing. That is what is prohibited. See, regarding state of mind, Prophitt v. State, 183 Ga. App. 332, 333 (358 SE2d 892) (1987) (Beasley, J., concurring specially).

The fact that the prior crimes were of the same sort is not sufficient for admission into evidence, because they were also “wholly independent, separate and distinct.” Bacon v. State, 209 Ga. 261, 263 (71 SE2d 615) (1952). See also Cox v. State, 165 Ga. 145 (1) (139 SE 861) (1927). As pointed out in Bacon, there must be a “logical connection” between the earlier act and the one on trial so that the earlier one tends to prove the fact at issue, which in that case, was defendant’s intent. Here, it was identity.

In Weems v. State, 204 Ga. App. 352 (419 SE2d 346) (1992), there were sufficient details to show a similar method of operation and therefore identity between the burglary on trial and one committed within days in the same apartment complex. By the same token, another residential burglary several years earlier was not shown to be sufficiently similar or connected and was erroneously admitted for the purpose to be served. However, the court concluded that, due to the strength of the other evidence, including fingerprints, it was “highly probable” that the inadmissible evidence did not contribute to the verdict, and the conviction was affirmed. Id. at 355. That same conclusion is not warranted here.

       The effect of the limited-purpose charge is problematic in itself, because of the unnatural compartmentalization of thinking which is required of the jurors. In a recent case before us, the transcript shows that after the trial court gave the limited-purpose charge with respect to evidence of other offenses, the court asked the jury, “Do you understand, ladies and gentlemen, what I just got through saying or is it Greek to you?” The transcript reveals:

        ‘Whereupon, a juror states it’s Greek/


author: Andrews, Judge.

text:
    A94A1979.
    SMITH et al. v. MAYTAG CORPORATION et al.
    (455 SE2d 379)
   Andrews, Judge.

Smith and Cook, sole shareholders and directors of TWS, Inc., and TWS, Inc. appeal from the trial court’s grant of summary judgment to defendants Maytag Corporation, Amerivend Southeast Corporation, formerly known as The Richard Company, Inc. (The Richard Company), and Owens, a salesman for Amerivend.

The summary judgment to Amerivend and Owens was awarded on the basis of res judicata, based on prior litigation initiated by Park Leasing Company against TWS, Inc. and Smith. In that suit, TWS, Inc. and Smith counterclaimed against Park Leasing and recovered on their counterclaims for violation of the Sale of Business Opportunities Act (SOBA). Park Leasing Co. v. TWS, Inc., 206 Ga. App. 864 (426 SE2d 620) (1992).

The grounds urged in support of the motion for summary judgment by Maytag were numerous and the order granting summary judgment does not specify its legal basis. We have examined the pleadings and record and conclude that the only issue necessary for us to consider as to Maytag is that of agency, for without that, there is no linchpin for the liability of Maytag.

1. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. ... A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiffs claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Maytag manufactures appliances, including commercial washers and dryers. As reflected in Park, supra, The Richard Company, now Amerivend, is in the business of distributing Maytag equipment, although its products are not limited to Maytag products. The following paragraph is contained in the Commercial Distributorship Agreement between Maytag and The Richard Company: “DISTRIBUTOR IS NOT IN ANY RESPECT AN AGENT, REPRESENTATIVE OR EMPLOYEE OF COMPANY, IN FURTHERANCE OF THIS FACT, DISTRIBUTOR SHALL ACCEPT FULL RESPONSIBILITY FOR ANY REPRESENTATIONS MADE TO ITS CUSTOMERS, INCLUDING BUT NOT LIMITED TO THOSE DEALING WITH QUESTIONS OF PROFITABILITY, LOCATION, FACILITIES, EQUIPMENT AND SERVICE REQUIREMENT. FURTHER, DISTRIBUTOR AGREES TO INDEMNIFY AND HOLD COMPANY HARMLESS, . . .”

Maytag Financial Services Corporation (MFSC) is a wholly owned subsidiary of Maytag which is in the business of providing distributors selling Maytag products “with a means of leasing MFSC Related Products to their customers.” As such, it entered into an agreement with Park Leasing Company whereby Park would provide administrative services for leases between MFSC and its lessees and would be authorized to use the name “Maytag Financial Services Corporation” in its leases. On March 15,1989, MFSC (Park Leasing) and TWS, Inc. entered into an agreement whereby TWS would lease listed Maytag commercial laundry equipment for TWS’ Laundromat in Savannah. Nine of the pieces of equipment were previously owned by Park Leasing and the other twenty-five pieces were purchased by The Richard Company from Maytag for the purpose of leasing them to TWS, Inc.

The equipment lease provided in paragraph 22: “Entire Agreement — This Lease contains the entire agreement between the parties; and no agreement, representation or inducement shall be effective to change, modify or terminate this Lease in whole or in part, unless in writing and signed by the parties. All prior conversations or writings between the parties hereto or their representatives are merged herein and extinguished.”

When the laundromat was not successful, TWS, Inc. and Smith as guarantor were sued by Park Leasing Company for the remainder of the lease payments due on the equipment. TWS and Smith then counterclaimed, alleging numerous claims against Park Leasing. The judgment in TWS and Smith’s favor on their counterclaim was affirmed by this court which concluded that all damages were in fact awarded under the SOBA claim. Id. This court upheld the jury’s factual determination that The Richard Company was the agent of Park Leasing for purposes of the transactions with TWS and held Park Leasing responsible for representations made by Owens, The Richard Company salesman, which were alleged to be false and violative of the SOBA.

Maytag supplied product information to its distributors, including a brochure concerning the “Maytag Equipped Just Like Home Laundry.” Included with this material is an explanatory letter which states “[t]his information is presented to give you ideas on how to make YOUR laundry business become the type of business you want it to be. The Maytag Company is proud of our full line of commercial laundry products. We feel that Maytag commercial laundry products should be an important part of YOUR laundry business. . . . This booklet is an effort to highlight some other factors [in addition to brand of machines used] which you may wish to consider. Of course, we cannot list all of the factors you need to consider and therefore we encourage you to obtain competent advice before making YOUR decisions about YOUR commercial laundry. ... In an effort to help you decide to fully equip YOUR laundry with Maytag commercial laundry products, we’ve introduced the Maytag-equipped(R) Just Like Home(TM) laundry co-op sign program. It’s not a franchise. The choices are YOURS. Ask your Maytag commercial laundry distributor what you need to do in order to be eligible for the Maytag-equipped Just Like Home laundry co-op sign program and hang ‘Maytag-equipped Just Like Home Laundry’ signs in YOUR laundry. . . . The enclosed artist’s conceptions and material samples are examples of how YOUR laundry can look. The enclosed list of manufacturers is furnished as a service to you if you would like to furnish and decorate your laundry as shown in the artist’s conceptions.”

In response to the affirmative statement of Maytag’s corporate secretary that The Richard Company was not the agent of Maytag, as opposed to Park Leasing d/b/a Maytag Financial Services, Inc., appellants present their conclusions and assumptions based, among other things, on the product brochure.

“ ‘The bare assertion or denial of the existence of an agency relationship is a statement of fact when made by one of the purported parties to the relationship; but when made by an outsider, bare assertions or denials are merely conclusions of law. The affidavit denying the existence of agency must be received as evidence of a fact, which cannot be overcome by conclusionary affidavits [or testimony].’ [Cits.]” Thomas v. Schouten, 210 Ga. App. 244, 246 (435 SE2d 746) (1993).

“Where the question of agency vel non rests upon a written document and inferences deduced therefrom, . . . the issue presented is a question of law for the trial court since construction of written contracts is exclusively for the judge. [Cits.] . . . Under Georgia law[,] ‘(t)he relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.’ OCGA § 10-6-1. The historical test applied by Georgia courts has been ‘whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract.’ [Cits.]” McMullan v. Ga. Girl Fashions, 180 Ga. App. 228, 229-230 (2) (348 SE2d 748) (1986).

Even assuming, without deciding, that the Maytag/The Richard Company distributorship agreement created a franchise arrangement, the mere use by a franchisee of the franchisor’s trademark does not create sufficient evidence to allow the question of apparent agency to survive Maytag’s motion for summary judgment. Texaco v. Youngbey, 211 Ga. App. 789, 790 (440 SE2d 533) (1994); McGuire v. Radisson Hotels Intl., 209 Ga. App. 740, 742 (1) (435 SE2d 51) (1993); McMullan, supra; Wiggins v. Home Owners Warranty Council &c., 168 Ga. App. 777 (310 SE2d 554) (1983). Also, the record does not contain admissible evidence that Maytag Corporation, as opposed to a subsidiary or other company, committed affirmative acts indicating that Park Leasing was its agent so as to justify reliance by TWS or Cook and Smith. Compare Nat. Carloading Corp. v. Security Van Lines, 164 Ga. App. 850, 853 (5) (297 SE2d 740) (1982) and Triple “C” Recreation Assn. v. Cash, 124 Ga. App. 754, 756 (2) (186 SE2d 145) (1971). In light of the language contained in the distributorship agreement, the trial court’s grant of summary judgment to Maytag was proper, because there was no showing made that Maytag Corporation exercised such control over Park Leasing or The Richard Company to make either corporation the agent of Maytag.

2. Appellants also allege error in the trial court’s grant of the motion of The Richard Company and Owens on the basis of res judicata.

(a) “[The law of res judicata], also known as claim preclusion, requires a plaintiff to bring all his claims against a party (or its privies) arising out of a particular set of circumstances in one action; while [collateral estoppel], sometimes called issue preclusion, prevents relitigation of an issue already litigated by the parties (or their privies). In other words, ‘under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action. (Cits.)’ Parklane Hosiery Co. v. Shore, 439 U. S. 322, 326, n. 5 (99 SC 645, 58 LE2d 552) (1979); see also Block v. Woodbury, 211 Ga. App. 184 (1) (438 SE2d 413) (1993).” Sorrells Constr. Co. v. Chandler Armentrout &c., 214 Ga. App. 193, 194 (447 SE2d 101) (1994).

The issue presented here is whether a judgment against the principal, Park Leasing Company, in the prior action, can provide the basis for the agent, The Richard Company, to assert claim preclusion when sued in a separate action. As held in Park Leasing, supra at 865, “there was sufficient evidence of The Richard Company’s agency to withstand [Park Leasing’s] motion for directed verdict. [Cit.] As The Richard Company’s principal, [Park Leasing] would be bound by the representation [regarding the income to be derived from opening a laundry]. QCGA § 10-6-56.”

For the purpose of claim preclusion “ ‘a servant is not in privity with the master so as to be able to claim the benefit of an adjudication in favor of the master.’ . . . Gilmer v. Porterfield, 233 Ga. 671, 674 (2) (212 SE2d 842) (1975).” (Emphasis omitted.) Sorrells Constr. Co., supra.

(b) McNeal v. Paine, Webber &c., 249 Ga. 662 (2) (293 SE2d 331) (1982), distinguished Gilmer, supra, holding that an employee was in privity with his employer for purposes of determining whether issue preclusion was applicable. Sorrells Constr. Co., supra. In McNeal, the employer obtained a favorable verdict after acknowledging that, if the employee was liable, it was liable. Therefore, the prior adjudication in favor of the employer necessarily determined that the employee was not liable and there were no defenses available to the employer that were not available to the employee. Therefore, the plaintiff was precluded from relitigating the issue of the employee’s liability. Block, supra at 186 (1); Brinson v. First American Bank, 200 Ga. App. 552, 555 (4) (409 SE2d 50) (1991).

Here, the premise for the jury’s determination that Park Leasing was liable on the SOBA claim was its responsibility for the acts of its agent, The Richard Company, and there were no defenses available to Park that were not available to The Richard Company for these acts.

However, the judgment entered was in favor of TWS and against Park Leasing, the principal. Compare Hodo v. Basa, 214 Ga. App. 895, 896 (1) (449 SE2d 523) (1994).

This situation is similar to Nannis Terpening &c. v. Mark Smith Constr. Co., 171 Ga. App. 111 (318 SE2d 89) (1984). There, Mark Smith Construction Company was the general contractor on a baseball stadium being built by the DeKalb County Board of Education. The Board had hired Jordan to prepare the plans and specifications and he in turn hired Terpening to prepare the structural portion of the plans and specifications. Smith encountered numerous problems, resulting in his filing suit against Jordan for negligence in preparation of the plans. Jordan then filed a third-party action against Terpening. Prior to commencing that litigation, however, Smith had initiated arbitration with the Board, as provided for in the construction contract, claiming it was due additional monies for problems on the project. The Board counterclaimed for defective and incomplete construction. The arbitration was completed, resulting in an award to Smith and an award to the Board on its counterclaim. The result was a net recovery by Smith. The arbitration was conducted under the premise that the Board, as principal, would be responsible for any problems in construction caused by Jordan, the Board’s agent. The confirmed arbitration award was paid by the Board and Jordan and Terpening sought summary judgment in Smith’s litigation against them on the basis of OCGA § 9-2-4. This court reversed the trial court’s denial of summary judgment to the agents because the arbitration award had resolved the Board’s vicarious liability for the acts of its agents on the project.

Decided March 16, 1995.

Stanley G. Jackson, for appellants.

Therefore, since the judgment entered against Park Leasing has been paid, The Richard Company and Owens are entitled to rely upon that satisfied judgment entered against their principal insofar as it is a final adjudication regarding damages incurred by TWS as a result of misrepresentations made by The Richard Company and its employee Owens under the SOBA.

A review of the record here reflects that the same categories and in many instances the exact same amount of damages were claimed by TWS in the suit against Park as are now being claimed against The Richard Company and Owens. TWS was paid $34,118 in actual damages, trebled pursuant to OCGA § 10-1-399, plus punitive damages and attorney fees.

The trial court was correct in concluding that, as to the amount of TWS’ and Smith’s damages claimed against The Richard Company, the prior judgment against Park was conclusive and binding against TWS and Smith. Thompson v. Hardy Chevrolet &c., 211 Ga. App. 521, 522 (1) (439 SE2d 689) (1993); Green v. Thompson, 208 Ga. App. 609, 610 (1) (431 SE2d 390) (1993).

3. The addition of “personal” claims by Cook, one of two shareholders in TWS, Inc., is of no avail. Here, any claims which he has are solely as a result of his status as a stockholder in TWS, Inc. Such claims are those of the corporation and assertable by it unless the stockholder claims fraud on the part of the corporation, which is not present here. Smyly v. Smith, 216 Ga. 529 (1) (118 SE2d 188) (1961); Short v. McKinney, 111 Ga. App. 557, 560 (2) (142 SE2d 398) (1965); see Michel v. Pickett, 241 Ga. 528, 537 (8) (247 SE2d 82) (1978).

4. There is no need to address the remaining enumerations of error.

Judgment affirmed.

Johnson, J., concurs. Beasley, C. J., concurs in judgment only.

McAlpin & Henson, Kirk M. McAlpin, Jr., Pursley, Howell, Lowery & Meeks, R. Harold Meeks, Jr., for appellees.

       The brief of appellants is not in compliance with Rule 27 (a) (1) & (c) (3) (i) of this court. While some factual allegations are supported by record references, many crucial ones are not, making this court’s review of claimed errors extremely difficult on the voluminous record before us. Further, some of the record references are incorrect and misleading.


author: Smith, Judge. Pope, Presiding Judge,

text:
    A94A2007.
    A94A2008.
    A94A2009.
    NATIONWIDE MORTGAGE RESOURCES, INC. v. STALZER et al. DOVER FINANCIAL CORPORATION v. STALZER et al. VININGS BANK & TRUST, N.A. v. STALZER et al.
    (455 SE2d 402)
   Smith, Judge.

These closely related appeals center around various claims made against a property interest purportedly held by a debtor in bankruptcy in a home on Lake Burton in Rabun County, Georgia.

The debtor’s spouse, appellee Trudy J. Kitchin, filed a complaint in equity seeking to prevent appellants and another creditor from exercising certain rights with respect to, among other things, the Lake Burton property — rights purportedly established by the creditors’ respective deeds to secure debt. As amended, Kitchin’s complaint asserted that a quitclaim deed executed by her and naming her husband as grantee was fraudulently obtained. Kitchin eventually moved to join the bankruptcy trustee as a party “so that all parties that claim an interest in the lake property will be before [the] court.” The trial court entered a consent order joining the trustee in the action as a party defendant.

The trustee answered and filed a cross-claim against the original creditor-defendants. The trustee asserted that the debtor’s interest in the Lake Burton property was at best a mere usufruct and therefore could not be secured by a deed to secure debt. Instead, the trustee argued, the creditors should have filed a UCC-1 financing statement, which none did. Each of the creditors basically responded that the interest conveyed by Georgia Power was an estate for years rather than a usufruct, and that even if the interest is not an estate for years, the usufructuary interest is in “real estate,” and as such may be secured by a deed to secure debt.

The trial court granted the trustee’s motion for summary judgment on her cross-claim and denied creditor Dover Financial Corporation’s motion for partial summary judgment. Three of the creditors bring separate appeals, and each enumerates as error the grant of summary judgment to the bankruptcy trustee. Appellant Dover Financial Corporation also appeals the denial of its motion for partial summary judgment. As to the former issue, the creditors’ respective appeals will be treated together.

1. Kitchin confirms by affidavit that she has settled with the bankruptcy trustee. While Kitchin continues to contest the creditors’ respective claims to the Lake Burton property, the settlement has apparently rendered her indifferent as to whether her own claim is superior to that of the bankruptcy trustee. In fact, neither the trial court nor any party on appeal appears eager to address the obvious question of whether any interest in the Lake Burton property was ever transferred from Trudy Kitchin to her husband. Nevertheless, the record before us suggests only that the property interest at issue was never legally assigned to the debtor-in-bankruptcy in the first instance.

We first note that the lease agreement between Trudy Kitchin and Georgia Power Company strongly reflects the utility’s need to maintain strict control over the land subject to the lease. The lease indicates Kitchin merely “hired” the property, and did not receive an estate for years. The terms of the lease agreement between Georgia Power and Kitchin show the utility has retained substantial control over the premises at issue, including the ability to terminate the lease with 90 days’ notice. Moreover, paragraph 19 specifically provides that the agreement “shall create the relationship of landlord and tenant only between lessor and lessee. No estate shall pass from lessor to lessee hereunder; lessee shall have a usufruct only, not subject to levy, sale or attachment; however, this shall not prevent levy, sale, or attachment on lessee’s personal property located on the premises.” We agree with the trial court that Kitchin obtained a usufruct only under the lease agreement, not an estate for years.

Regardless of the proper characterization of the interest created by the lease agreement between Kitchin and Georgia Power, however, paragraph 7 provides: “Lessee shall not assign this lease, or any right of lessee hereunder, nor sublet all or any portion of the premises, without the express prior written consent of lessor.” No such written consent appears in the record, nor is there even a suggestion that such consent was obtained from Georgia Power. Moreover, none of the creditors suggests a basis for a valid assignment by Kitchin to her husband in spite of the apparent failure by Kitchin to seek leave from Georgia Power to do so. We also note that even if Kitchin’s original interest in the property is characterized as an estate for years, Kitchin’s ability to assign that interest to her husband would still be “ ‘subject to the terms and conditions of the lease. (OCGA §§ 44-6-100; 44-6-102; 44-7-1).’ [Cit.]” Paces Partnership v. Grant, 212 Ga. App. 621, 624 (1) (442 SE2d 826) (1994).

The issue not addressed below and the state of the record presented in this case are both very similar to that reviewed in Rotruck v. Grandma’s Biscuits, 243 Ga. 512 (255 SE2d 36) (1979), in which the Supreme Court held: “We cannot find any indication that an assignment occurred here. ‘As to the usufruct, since the original tenant has no estate in land, one cannot talk about a sublease in the technical common law sense. . . . The confusion as to the use of the terms assignment and sublease would appear to arise in the case of a usufruct where the transfer is not authorized. In a case where the landlord does not consent to the transfer, but also does not elect to oust the wrongful possessor, it is easy to classify this as a subtenancy. But in reality in this case the possessor .of the premises is simply holding in place of the original lessee and from the landlord’s standpoint, he is merely an agent or representative of the lessee.’ [Cit.]” (Emphasis supplied.) Id. at 514.

Assuming, as the record strongly suggests, that Georgia Power did not give written consent before the fact authorizing Kitchin to assign her usufructuary interest to her husband, then it would appear that the creditors and trustee are claiming rights in a property interest the bankrupt debtor never legally held. We will not consider a question of first impression regarding the permissible methods of establishing a secured interest in a usufruct when the record reflects that the question framed by the parties is, at best, premature. The grant of summary judgment to the bankruptcy trustee is therefore vacated as to each appellant and the case is remanded for such further proceedings as may be necessary to establish whether the debtor-in-bankruptcy is a proper assignee of the usufruct at issue.

2. In Case No. A94A2008, we affirm the trial court’s denial of summary judgment to Dover Financial Corporation; for the reasons stated in Division 1, the record clearly does not establish that it is entitled to judgment as a matter of law.

Judgment vacated and remanded with direction in Case Nos. A94A2007 and A94A2009. Judgment affirmed in part and vacated and remanded with direction in part in Case No. A94A2008.

McMurray, P. J., concurs. Pope, P. J., concurs specially.

Decided March 16, 1995.

Lefkoff, Duncan, Miller, Grimes, Miller & Barwick, John R. Grimes, for Nationwide Mortgage.

Glass, McCullough, Sherrill & Harrold, Geoffrey H. Cederholm, for Dover Financial.

Wagner & Johnston, Benjamin C. Abney, for Vinings Bank.

Barbara M. Stalzer, pro se.

Pettigrew & Trippe, David R. Trippe, for Stalzer et al.

Pope, Presiding Judge,

concurring specially.

I see the problem in this case as one of standing rather than ripeness: What we have is several parties fighting over their relative rights with respect to a piece of property, when the record strongly suggests that none of the parties to the appeal have any legally cognizable rights with respect to the property at all. If the parties cannot establish on remand that Georgia Power gave prior written approval for the alleged transfer from Ms. Kitchin to her husband, all claims depending on the validity of that transfer should be dismissed. If they can, the trial court should reenter its grant of partial summary judgment for the trustee to allow the creditors to appeal again if they wish.

Even though I reach the same result as the majority, I make the distinction between standing and ripeness because lack of ripeness (in the sense the majority uses it here) may not always be a valid basis for declining to address the merits of an appeal from a partial summary judgment — particularly a partial summary judgment on a cross-claim. Almost all grants of summary judgment on cross-claims will assume some fact or conclusion not yet established. A common paradigm, for example, might be the assertion by a defendant that “assuming I am liable to the plaintiff, co-defendant is liable to me.” In that situation, if partial summary judgment on the cross-claim is granted for either defendant or co-defendant, that grant of partial summary judgment clearly would be appealable under OCGA § 9-11-56 (h), even though it assumes a liability which has not yet been established (and even though the appeal from the partial summary judgment forces us to decide an issue which might not have to be decided if we waited until the case was concluded); we could not avoid addressing the merits by remanding to allow the trial court to address other issues first.

       Nothing in this opinion is meant to imply that a trial court errs in assuming facts favorable to the nonmovant in an effort to consider whether the nonmovant may prevail under any set of facts based upon established law. However, it is simply not prudent to assume facts favorable to the nonmoving party when a question of first impression is implicated.

      The special concurrence engages needlessly in circular reasoning and in so doing commits the identical “sin” it condemns. First, there is no question of standing in this case. Standing deals with the question of whether a party may assert a right even presuming it exists; this case deals with parties who clearly have standing, but the rights they assert are of dubious validity. Second, even assuming there is a question of “standing,” the special concurrence in essence observes that we cannot decide this case until an assumed fact is established one way or the other. That is exactly what is being done here. There is no disagreement on that point. Finally, the special concurrence errs in suggesting that none of the parties to this appeal have any legally cognizable rights in the usufruct at issue. Trudy Kitchin is indeed a party to this appeal.


text:
    A94A2046.
    CULBERSON v. LANIER et al.
    (455 SE2d 385)
   McMurray, Presiding Judge.

Devin C. Culberson brought an action against William C. Lanier and Trea Lanier for injuries allegedly sustained when she fell down an open stairwell at a house Trea Lanier was renting from his father, William C. Lanier. Culberson’s claim against William C. Lanier is based on OCGA §§ 44-7-13 and 44-7-14, relating to liability of landlords for failing to keep leased premises safe and free of construction defects. The Laniers denied the material allegations of the complaint and moved for summary judgment. Construing the facts in a light which most favorably supports Culberson’s claims, Patterson v. First Assembly of God of Tifton, 211 Ga. App. 718, 719 (440 SE2d 492), we observe the following:

Trea Lanier refurbished a rental house owned by his father as part of an agreement for him to reside at the house. The work included installation of a stairwell into the basement so as to provide access to the only bathroom. To this extent, Trea Lanier opened a hole in the kitchen floor and strung a row of stairs. However, he failed to install a rail around the stairwell in violation of an applicable building code. Thus, the stairs were literally like an open well.

Pursuant to a social invitation, Culberson arrived at Trea Lanier’s home between 1:00 and 2:00 in the afternoon on November 16, 1992. Culberson had never before visited the small house so (at the outset) Trea Lanier gave her a tour of the main floor of his dwelling. The couple then began consuming alcohol, smoking tobacco and listening to music. After a short time, Culberson successfully descended the open stairwell and employed the bathroom facilities. She then came back up the stairs to the kitchen, sat at a table and watched Trea Lanier prepare a meal “for maybe 15 or 20 minutes.” Lanier then turned away from Culberson “to get an ashtray . . .” and “heard sort, of a thud.” When Lanier turned to investigate, “she was gone. So [he] went down stairs, and [found Culberson] was lying on the [basement] floor. ...” Neither Lanier nor Culberson knew what happened. As accounted from her deposition, Culberson “think[s] [her] sense got knocked out of [her] when [she] hit the [basement] floor because [she] don’t remember going through the [stair] hole.” The only thing Culberson remembers immediately after the fall is that she “got up[; that she] maybe smoked a cigarette or something like that [and that] Trea asked [her] how [she] got down there.”

This appeal followed summary judgment in favor of the Laniers. Held:

1. Culberson complains because the trial court did not address (in its order) William C. Lanier’s liability under OCGA §§ 44-7-13 and 44-7-14 for allowing an unsafe condition on his rental property, contending public policy demands jury resolution on issues such as comparative negligence and assumption of the risk even though the defective stairwell (constructed in violation of a local building code) presented an open and obvious danger. See Thompson v. Crownover, 259 Ga. 126 (381 SE2d 283); The Flagler Co. v. Savage, 258 Ga. 335, 337 (2) (368 SE2d 504); Bastien v. Metropolitan Park Lake Assoc., 209 Ga. App. 881, 882 (434 SE2d 736). We do not agree.

Although landlords have duties created by statute to keep their premises safe, this does not mean they are always subject to liability for dangerous conditions existing on premises with their knowledge (constructive or actual) and consent. See Roth v. Wu, 199 Ga. App. 665 (1) (405 SE2d 741); Plantation at Lenox Unit Owners’ Assn. v. Lee, 196 Ga. App. 420, 421 (2) (395 SE2d 817); Hall v. Thompson, 193 Ga. App. 574 (1) (388 SE2d 381). The issue pressed by Culberson thus becomes whether the trial court erred in finding, as a matter of law, that she failed to exercise ordinary care for her own safety in view of the open and obvious hazard. See Rowland v. Colquitt, 214 Ga. App. 545, 547 (2) (448 SE2d 457). Although we are of the view that the clear and undisputed circumstances of the case sub judice sustain the trial court’s finding that Culberson’s failure to watch out for her own safety was the sole proximate cause of any injuries Culberson sustained (Culberson traversed the stairs twice before her fall and she was fully aware of the hazard), we need not reach this issue.

“To recover in a [step]-and-fall case, the plaintiff must do more than prove the existence of an unsafe condition existing on the premises; he or she must also establish a causal connection between that condition and the injuries for which recovery is sought. In Brown v. RFC Mgmt., 189 Ga. App. 603 (376 SE2d 691) (1988), this court held that where a plaintiff was unable to state what had caused her to slip and fall on a stairway located in her apartment building, the defendant property owner was entitled to summary judgment even though there was evidence that the stairway was not illuminated and was covered by a threadbare, loosely fitting carpet which might have caused the fall. Accord Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980); Bradley v. Red Food Stores, 179 Ga. App. 39 (345 SE2d 127) (1986).” Boyd v. Garden Center, 197 Ga. App. 198, 200 (3) (397 SE2d 626). In the case sub judice, Culberson similarly testified (in her deposition) that she did not know what caused her fall or even how she made it to the bottom of the stairwell. Consequently, as Culberson offered no other evidence which would tend to establish a causal connection between her injuries and the absence of a stair rail, we must affirm the trial court’s order granting summary judgment in favor of William C. Lanier. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. Culberson does not challenge (via argument) the propriety of the trial court’s order granting summary judgment in favor of Trea Lanier. Consequently, we do not reach that issue.

Decided March 16, 1995.

Davidson & Strain, William E. Davidson, Jr., Meeks & Richardson, W. Gene Richardson, for appellant.

Goodman, McGuffey, Aust & Lindsey, Judy F. Aust, Leslie S. Sullivan, David C. Keever, for appellees.

Judgment affirmed.

Pope, P. J., concurs. Smith, J., concurs specially.

Smith, Judge,

concurring specially.

I concur, but I cannot agree with the majority’s reasoning on the issue of causation. A jury could reasonably infer by a preponderance of the evidence that Culberson would not have experienced the impact with the basement floor and injuries accompanying that fall but for the lack of a railing. Nevertheless, Culberson fails to show that the landlord was or should have been aware of the lack of a railing around the stairwell at the time of the fall. For this reason, I find Bastien v. Metropolitan Park Lake Assoc., 209 Ga. App. 881, 882 (434 SE2d 736) (1993), to be distinguishable.


text:
    A94A2185.
    DOWLING v. ATLANTA CITY SCHOOL DISTRICT et al.
    (455 SE2d 399)
   Pope, Presiding Judge.

Plaintiff Dowling, an employee fired by defendants (collectively referred to herein as “the Board”) without a pretermination hearing, brought this action pursuant to the Fair Dismissal Act of Georgia (OCGA § 20-2-940 et seq.) as well as the Fourteenth Amendment to the United States Constitution and 42 USCA §§ 1983 and 1988. Although the trial court ruled that plaintiff was not covered by the Fair Dismissal Act, it eventually found that the Board had improperly fired plaintiff without good cause and ordered the Board to reinstate plaintiff with full back pay. Citing Henderson v. Sherrington, 189 Ga. App. 498 (2) (376 SE2d 397) (1988), the trial court then dismissed plaintiff’s claims for further damages and attorney fees under 42 USCA §§ 1983 and 1988 because reinstatement with back pay was an “adequate remedy.” We conclude that Henderson was erroneously decided and should be overruled, and therefore reverse.

In April 1992, the Superintendent of the Atlanta Public Schools informed plaintiff, the manager of the school system’s public radio and television stations, that he would recommend that the Board not renew her contract. Although plaintiff was notified of her right to a pretermination hearing and she made a timely request for such a hearing, no pretermination hearing was held and plaintiff was fired on June 30, 1992. The Board initially agreed to give plaintiff a post-termination hearing, but it subsequently informed her that she was not entitled to any hearing at all.

Plaintiff then filed this § 1983 action, seeking and receiving immediate injunctive relief. The trial court ruled that plaintiff had a right to a pretermination hearing on whether the Board had good cause to terminate her employment, and ordered the Board to continue paying plaintiff her salary pending the outcome of the hearing. A hearing was finally held in October 1992, before a panel of the Professional Practices Commission (“PPC”). The panel members unanimously concluded that the Board did not have good cause to termir nate plaintiff’s employment and that plaintiff should be reinstated. Nevertheless, the Board chose to ignore the conclusions of the PPC panel and again voted to fire plaintiff. And, apparently believing it had satisfied the trial court’s order by paying plaintiff through the hearing, it again stopped paying her salary.

Plaintiff appealed the local Board’s decision to the State Board of Education pursuant to OCGA § 20-2-1160 (b). The State Board ruled in favor of plaintiff in July 1993, finding her termination to be “arbitrary and capricious.” Yet the Board still refused to reinstate plaintiff, forcing her to bring further motions in the trial court in this case. Indeed, the Board did not reinstate plaintiff until explicitly ordered to do so by the trial court. Because plaintiff was eventually reinstated, however, the trial court was bound by Henderson to hold that plaintiff had been provided an “adequate remedy” and to dismiss her claims for damages and attorney fees.

In Henderson, an employee was fired by a county tax commissioner. The employee appealed her termination to the county merit system board, which ruled that she should not have been fired; but the tax commissioner still refused to reinstate the employee.' Only when the employee brought a § 1983 action and obtained an order from the trial court was she reinstated with full pay. Yet the trial court then dismissed the plaintiff’s claims for damages and attorney fees. We affirmed, relying on Parratt v. Taylor, 451 U. S. 527 (101 SC 1908, 68 LE2d 420) (1981) for the proposition that a governmental actor’s conduct which deprives a plaintiff of liberty or property can give rise to a procedural due process violation only if “available state remedies are not themselves adequate to provide the claimant with redress for the alleged injury.” Henderson, 189 Ga. App. at 499. We stated that the plaintiff in Henderson clearly had an adequate state remedy since she had been reinstated with full pay — despite the fact that the State administrative remedy had proved ineffective and she was not reinstated until she filed a § 1983 action and obtained a court order. Because the plaintiff’s reinstatement with back pay resulted from the § 1983 action itself, rather than from a state remedy, we now conclude that Henderson was wrongly decided and must be overruled.

The Board also calls our attention to Turner v. Giles, 264 Ga. 812 (4) (450 SE2d 421) (1994), a recent Georgia Supreme Court case in which that Court held that a licensee denied a predeprivation hearing could not state a procedural due process claim as long as the state provided a postdeprivation hearing which resulted in the licensee’s reinstatement with back pay. We are not bound by Turner because unlike the plaintiffs in Henderson and this case, the plaintiff in Turner really was reinstated as the result of the postdeprivation hearing provided by the state, rather than as the result of an order of the trial court in the § 1983 action. Moreover, to the extent Turner relies on Parratt to hold that a postdeprivation remedy may be adequate even if the plaintiff had a right to a predeprivation hearing, it may need to be reconsidered.

In Parratt, a prisoner’s hobby materials were lost as a result of prison officials’ negligence, and the United States Supreme Court held that this deprivation of property could not be the basis for a procedural due process claim because the state provided an adequate remedy for the loss through its state tort claims procedure. 451 U. S. at 544. The Parratt rule was extended to intentional but unauthorized acts in Hudson v. Palmer, 468 U. S. 517 (104 SC 3194, 82 LE2d 393) (1984), in which a prisoner alleged that a guard who did not like him intentionally destroyed property in his cell. In Zinermon v. Burch, 494 U. S. 113 (110 SC 975, 108 LE2d 100) (1990), however, the Supreme Court made it clear that the scope of the Parratt rule is limited to its underlying rationale. The actions causing the deprivations in Parratt and Hudson were either random or unauthorized, and thus unpredictable from the perspective of the governmental entity. As a result, a predeprivation hearing was simply unfeasible and a post-deprivation hearing was all that could be expected or required. In this type of situation, the governmental entity meets the requirements of procedural due process if it provides for a postdeprivation hearing and remedy. But if the action causing the deprivation is planned and authorized, so that a predeprivation hearing is in fact feasible, a postdeprivation state remedy is not constitutionally sufficient. Zinermon, 494 U. S. at 115, 132, 136-138. Based on Zinermon, therefore, it would appear that if a § 1983 plaintiff has a right to a predeprivation hearing and does not receive one, she states a valid procedural due process claim regardless of the postdeprivation remedies the state provides. See also Fetner v. City of Roanoke, 813 F2d 1183 (11th Cir. 1987) (postdeprivation remedies do not provide due process if predeprivation hearing is practicable).

Decided March 16, 1995

McKee & Barge, R. Mason Barge, for appellant.

Smith, Howard & Ajax, Bruce H. Beerman, for appellees.

For these reasons, we conclude that at least where it takes a § 1983 action to effect a postdeprivation remedy, a plaintiff with the right to a predeprivation hearing does not lose her § 1983 and § 1988 claims for damages and attorney fees once a postdeprivation remedy is effectuated. It follows that plaintiff may pursue her claims for damages and attorney fees. Indeed, the Board’s behavior in this case appears to be exactly the type of abuse of power the due process clause and 42 USCA § 1983 were meant to address.

As the record clearly shows a procedural due process violation in this case, summary judgment should be granted for plaintiff with respect to the Board’s liability, and plaintiff is entitled to at least nominal damages and attorney fees. See Carey v. Piphus, 435 U. S. 247 (98 SC 1042, 55 LE2d 252) (1978); Farrar v. Hobby, 506 U. S__(113 SC 566, 121 LE2d 494) (1992). If plaintiff can prove other actual damages, she will be entitled to those; and the jury may also award punitive damages if it finds either that the Board’s conduct involved reckless or callous indifference to plaintiff’s rights, or that it was motivated by evil motive or intent. See Smith v. Wade, 461 U. S. 30 (103 SC 1625, 75 LE2d 632) (1983).

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Blackburn and Smith, JJ., concur. Beasley, C. J., Andrews, Johnson and Ruffin, JJ., concur in judgment only.

        Parratt was overruled in part by Daniels v. Williams, 474 U. S. 327, 330-331 (106 SC 662, 88 LE2d 662) (1986), but the overruled portion of the decision is not relevant here.

       Notably, although Zinermon was a five-to-four decision, the dissenters agreed with the majority that the scope of Parratt was limited in this manner; they simply disagreed on whether a predeprivation hearing was feasible under the facts presented.

       Plaintiff’s compensatory damages may include damages for emotional or mental distress if proven. See Carey, 435 U. S. at 264.