author: Sognier, Judge. Deen, Presiding Judge, Carley, Chief Judge,

text:
    A90A0203, A90A0204.
    ABALENE PEST CONTROL SERVICE, INC. et al. v. ORKIN EXTERMINATING COMPANY, INC.
    (395 SE2d 867)
   Sognier, Judge.

Orkin Exterminating Company, Inc. brought suit against Abalene Pest Control Service, Inc. of New York (Abalene), three other corporations, and Walter T. Blank, the individual who is president of all the corporate defendants, alleging breach of two warranties in the purchase agreement executed by the parties, breach of that agreement, and tort claims based on negligence, fraud, and negligent misrepresentation. The suit stemmed from Orkin’s purchase of the assets of the above corporate defendants through their president, Blank (who is also a party to the purchase agreement in his individual capacity), specifically, the purchase of three properties in New York on which the presence of pesticides in the soil (on the Clinton and LaGrangeville properties) and barrels of buried pesticides (on the Fort Edward property) were allegedly discovered. The trial court granted partial summary judgment in favor of Orkin as to the Fort Edward property under one warranty claim and denied the motion for summary judgment on the entire complaint made by the defendants. The defendants’ interlocutory appeal from the denial of their motion for summary judgment is consolidated in this opinion with their direct appeal from the grant of partial summary judgment in favor of Orkin.

1. We note initially that the purchase agreement executed by the parties provides that it “shall be construed in accordance with the laws of the State of New York.” “The lex loci governs as to all substantive matters, and the lex fori as to all matters affecting the remedy or procedure. Rules of evidence, the methods of shifting the burden of proof, and the presumptions arising from a given statement of facts, are matters affecting the remedy or procedure. [Cit.]” Hamilton v. Metropolitan Life Ins. Co., 71 Ga. App. 784, 790 (3) (32 SE2d 540) (1944). See also General Elec. &c. Corp. v. Home Indem. Co., 168 Ga. App. 344, 349 (2) (309 SE2d 152) (1983). We thus apply the procedural law of Georgia where appropriate.

2. Appellants contend the trial court erred by denying their motion for summary judgment as to appellee’s claims involving the Clinton and LaGrangeville properties. We find no merit in appellants’ first argument that appellee’s failure to introduce properly into the record the four Law Environmental, Inc. reports (which constituted the sole scientific evidence that pesticide residues were present in the soil of these properties) entitled appellants to summary judgment, because our review of the deposition taken by appellants of John Raymond, appellee’s director of acquisitions, reveals that the Law Environmental reports were produced therein by appellants, marked for identification, and thereafter authenticated by Raymond. Accordingly, the Law Environmental reports were to be used as if annexed to and returned with the original deposition on file. OCGA § 9-11-30 (f) (1) (B). Although the Law Environmental reports were not filed with the deposition, in the interest of judicial economy we have utilized the copies of those same reports present in the record as attachments to an untimely affidavit submitted by appellee. These reports clearly establish the existence of pesticide residues in the soil of the Clinton and LaGrangeville properties, and therefore summary judgment was properly denied.

Appellants argue alternately that even if the pesticide residues exist, no evidence was presented that the presence of the pesticides violated any applicable law so as to constitute a breach of paragraph 3.09 (a) of the purchase agreement, which provides that “[appellants are] in compliance with all applicable laws, orders, rules and regulations of governmental bodies and agencies applicable to it.”

“The burden of proof on motion for summary judgment is always on the movant, even with respect to issues on which the opposing party would have the burden of proof during the trial of the case. [Cits.]” Best v. Dublin Eye Assoc., 188 Ga. App. 225, 226 (372 SE2d 495) (1988). “ ‘In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. (Cits.)’ [Cit.]” Echols v. Hudson, 189 Ga. App. 780, 781 (377 SE2d 542) (1989). “ ‘A motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and evidence that the party so moving is entitled to prevail.’ [Cits.]” McGivern v. First Capital Income Properties, Ltd., 188 Ga. App. 716, 717 (1) (373 SE2d 817) (1988). Applying these rules, our review of the depositions of Raymond and Ted Barrow, appellee’s employee and expert witness, discloses evidence from which it could reasonably be inferred that the presence of the pesticide residues at the Clinton and LaGrangeville properties was due to acts by appellants which violated various state and federal laws and regulations. Accordingly, the trial court did not err by denying appellants’ motion for summary judgment.

3. Appellants contend the trial court erred by considering the transcript of a criminal trial involving Louis Yager, formerly employed by appellants as the district manager at the Fort Edward property. The criminal trial transcript reflects that Yager and Abalene were both named in an indictment, which, as to Yager, contained six counts including a count of unlawfully disposing of hazardous wastes, a felony to which Yager pled guilty. The criminal trial transcript consists of the hearing held on Yager’s plea at which counsel for both Yager and Abalene were present. Yager testified under oath that while serving as Abalene’s district manager, he had personally authorized an employee under his supervision to excavate a hole and bury the hazardous wastes. He further testified he had talked with others at Abalene about the matter,.and had informed appellant Blank about the burial of the pesticides the day after it occurred. The transcript reflects that the New York court accepted Yager’s plea of guilty as to the one count of unlawfully disposing of hazardous wastes and accepted the State of New York’s recommendation that Yager be sentenced to one year in prison for the felony. Upon the filing of the criminal trial transcript in the case sub judice, appellants objected to the inclusion in the record of the transcript, but obtained no ruling on their objection.

We find no merit in appellants’ argument that testimony by a witness given under oath in the form of a transcript to an earlier legal proceeding is inadmissible on motion for summary judgment. A certified copy of a court transcript is one of the items a trial court is authorized to examine on motion for summary judgment to determine whether there is a genuine issue of material fact to be tried. Bodrey v. Cape, 120 Ga. App. 859, 860-861 (1) (172 SE2d 643) (1969). As unanimously noted in that whole court case, “ ‘a certified transcript of a court record is better evidence of its contents than an affidavit with regard thereto.’ [Cits.]” Id. at 861. Accordingly, the testimony contained in the certified transcript of the hearing on Yager’s guilty plea, insofar as such testimony may be relevant and material to the present proceeding, was subject to consideration by the court in carrying out its duty on summary judgment.

The cases cited by appellants in support of their contention, Neal v. Neal, 160 Ga. App. 771 (287 SE2d 109) (1982) and Pierce v. Pierce, 241 Ga. 96, 99-100 (3) (243 SE2d 46) (1978), are distinguishable from the case sub judice. First, the criminal trial transcript reflects that only Yager pled guilty to a charge in the indictment; thus, in the absence of any adjudication on the charges as to appellants the transcript could not have been offered to prove the truth .of appellants’ guilt or innocence, as in Pierce, supra. And, unlike Neal, supra, proof of Yager’s guilt would not serve to bar any suit pending between appellee and appellants.

Research has uncovered the decision in Moses v. Revco Discount Drug Centers, 164 Ga. App. 73, 75 (296 SE2d 384) (1982), in which this court, reviewing the grant of summary judgment to the defendants in a malicious prosecution suit, upheld the exclusion of an entire transcript from a prior criminal proceeding. In Moses, supra, this court intimated that sworn testimony from a trial transcript was not admissible on motion for summary judgment. The bases for this holding were that “[e]vidence on motion for summary judgment is generally presented by affidavit [OCGA § 9-11-56, and t]he testimony of witnesses in former legal proceedings is limited to occasions where inaccessibility of the witness is shown, or where it may be useful for impeachment. Code § 38-314 [OCGA § 24-3-10].” Id. at 75. While evidence on motion for summary judgment may typically be by affidavit, that is not the exclusive method for presenting sworn testimony. Bodrey, supra. Nor is the accessibility of a witness to testify at trial a concern on motion for summary judgment where by statute none of the evidence needs to be established by live testimony. See OCGA § 9-11-56 (c), (e), (f). Since the transcript of the hearing to the criminal proceeding at issue here reflects that Yager was competent to testify, that his testimony was made under oath, and that it was based on his personal knowledge of what he did, what he ordered others to do, and what he told certain people, it was evidence admissible on motion for summary judgment pursuant to OCGA § 9-11-56 (e), and we cannot agree with the reasoning in Moses, supra, that such testimony was limited to the occasions set forth therein merely because it was recorded under oath in a prior legal proceeding. Accordingly, we disapprove that language in Moses, supra, and hold that the admission of the relevant and material evidence in the transcript of Yager’s criminal hearing was not error.

4. Appellants contend the trial court erred by denying their motion for summary judgment as to the Fort Edward property and granting partial summary judgment as to this property to appellee on its allegation that appellants breached paragraph 3.09 (a) of the purchase agreement set forth above. The record reveals that three months after the sale between the parties had been concluded, the New York Department of Environmental Conservation executed a search warrant at the Fort Edward property and found more than 200 containers of various types of pesticides buried on the property. It is uncontroverted that appellee had no knowledge of the presence of the buried pesticides on the property.

(a) Appellants enumerate several reasons why the grant of appellee’s motion for partial summary judgment was erroneous. “The general purpose of the summary judgment procedure is to determine if there is a material issue of fact to be tried, rather than to set up a technical pitfall for the unwary advocate. [Cit.]” Thacker v. Matthews Tuxedo, 183 Ga. App. 474, 475 (359 SE2d 231) (1987). Unfortunately, the result of a “technical pitfall for the unwary” constrains this court to reverse the grant of summary judgment in favor of appellee.

Appellants contend, as part of their enumeration of error, that appellee was not entitled to partial summary judgment because it failed to pierce appellants’ affirmative defenses. The affirmative defenses in appellants’ amended answer are couched in standard “boilerplate” language with no commentary on how they are applicable to the instant suit, and it is not possible to determine from the pleadings the precise evidentiary basis for these defenses. No motion for a more definite statement was made in order to clarify the defenses. However, as appellants correctly point out, appellee, “as moving party for summary judgment, had the burden of piercing appellants’] affirmative defense[s]. [Cits.]” Peppers v. Siefferman, 153 Ga. App. 206, 207 (3) (265 SE2d 26) (1980). Most of appellants’ affirmative defenses appear to have been rebutted by the language of the purchase agreement in the record (including a provision under which appellants agreed to submit themselves to jurisdiction of Georgia courts), testimony that the purchase agreement was executed, and Raymond’s deposition testimony to the effect that appellee had performed its obligations thereunder. Nonetheless, appellee has failed to point out to this court, nor has review of the record revealed, any sworn testimony piercing or even addressing several of appellants’ more oblique affirmative defenses, such as the allegation that appellee’s claim was “barred in whole or in part by the doctrines of laches, estoppel and waiver.” Since it is possible that one or more of these defenses may go to the validity of the purchase agreement, it was improper for the trial court to pretermit them and rule on the merits of the claimed breach of a provision in the purchase agreement. Thus, any grant of partial summary judgment on the merits of this issue was premature and must be reversed. See generally Sun First Nat. Bank v. Gaines-ville 75, 155 Ga. App. 70, 74-75 (270 SE2d 293) (1980). Gregory v. Vance Pub. Corp., 130 Ga. App. 118 (202 SE2d 515) (1973), cited by appellee, does not support a contrary result since it involved the treatment to be given evasive answers to requests for admission.

Finally, in briefing this matter appellants also argue that appellee failed to pierce issues involving their counterclaim. We do not address this matter “because an enumeration of error cannot be enlarged to include other issues not made therein.” (Citations and punctuation omitted.) Givens v. Bourrie, 190 Ga. App. 425, 426 (2) (379 SE2d 223) (1989).

(b) Appellants also argue that the trial court’s denial of their motion for summary judgment was error. We find no merit in this enumeration. In view of Abalene’s status as a co-indictee of Yager and the attachments to the affidavit of Richard Decker, appellee’s attorney, consisting of copies of suits filed against appellants and appellee (as owner of record of the Fort Edward property) by the State of New York and other local authorities seeking damages for violation of numerous laws, appellants’ argument that appellee failed to adduce any evidence indicating that appellants may have violated any law or other applicable regulation by the presence of these barrels of pesticides so as to constitute a breach of paragraph 3.09 (a) is meritless. Although the record reflects that appellants have acted to mitigate appellee’s damages by paying for initial clean-up efforts at the Fort Edward property, the record contains evidence of pending suits and the potential for liability to surrounding landowners; testimony regarding the extensive actions necessary to finish removing the pesticides from the soil; and the actions appellee has had to take to avoid endangering its Fort Edward employees. Thus, we cannot agree with appellants’ argument that appellee failed to present any evidence creating a question of fact whether appellee suffered any damages as a result of appellants’ breach. Further, considering the letter in the record written to appellants’ insurer by its own attorneys seeking coverage for lawsuits arising from the burial of containers of pesticides by “an employee or employees of Abalene,” we do not agree with appellants that no evidence was adduced that appellants are responsible for the presence of at least some of the containers of pesticides at the Fort Edward property. Yager’s testimony that he personally informed appellant Blank about the burial of the pesticides rebuts the deposition testimony by appellant Blank denying personal knowledge of the burial of the pesticide, so as to create a genuine issue of material fact for resolution by a jury. Finally, in view of the evidence establishing that appellants were directly responsible for burying containers of pesticides at the Fort Edward property, we find no merit in appellants’ argument that appellee was required to prove appellants were the cause of all the pesticide contamination of the property before summary judgment in its behalf was appropriate. Accordingly, because appellants, as the parties moving for summary judgment, failed to carry their burden of showing the absence of a genuine issue of material fact on the issue of their liability for breach of the warranty in paragraph 3.09 (a) as to the Fort Edward property, the trial court properly denied their motion for summary judgment. See generally Lynch v. Waters, 179 Ga. App. 222, 225 (345 SE2d 867) (1986).

5. Appellants contend the trial court erred by denying their motion for summary judgment as to appellee’s claims against them under paragraph 3.03 (a) of the purchase agreement. That paragraph provides that “[appellants have] good and valid title to the Assets, free and clear of any lien, security interest, charge, or other encumbrance except for minor imperfections or non-monetary encumbrances which are of such a nature as do not, singly or in the aggregate, materially detract from the value of the Assets for the purposes used, or interfere with the present or continued use of the Assets.” In support of their argument that the alleged unlawful disposal of hazardous wastes on the properties in issue here does not constitute an “encumbrance” on appellee’s title, appellants refer this court to Georgia authorities and assert that in this state there is no remedy under a warranty of title for a defect in the condition of the property.

We are not, however, called upon here to decide whether as a matter of law in Georgia the conveyance to an unknowing purchaser of property contaminated by hazardous wastes constitutes an “encumbrance” so as to constitute a breach of the warranty of title, since the properties in issue uncontrovertedly lie in New York, and, as noted earlier, the purchase agreement specifically provides that it “shall be construed in accordance with the laws of the State of New York.” Thus, the question presented is not whether Georgia law would authorize appellee to recover under these circumstances for the above breach of title, but whether appellants have carried their burden of proving that they are entitled to summary judgment on this issue because as a matter of New York law, appellee cannot recover. Contrary to appellants’ argument, we find appellee gave "reasonable written notice of its intent to rely upon New York law on this matter pursuant to OCGA § 9-11-43 (c).

In support of its argument that New York recognizes a claim for breach of warranty of title under a situation similar to that presented here, appellee cites this court to P. B. N. Assoc. v. Xerox Corp., 529 NYS2d 877 (AD 2 Dept. 1988), involving a lease agreement with a warranty that the tenant “had committed no act which would cause the lessor or the premises to be ‘impeached, charged, claimed against, encumbered, burdened or suffer any loss or damage.’ ” Id. at 879. The tenant, upon discovering that contaminants had leaked into the soil from its storage tanks, voluntarily notified the New York Department of Environmental Conservation (“DEC”) and offered immediately to clean up the contamination. The tenant and the DEC then entered into a consent order requiring the tenant to restore the property and file a declaration along with the property title indicating that any successor in title to any portion of the property would be responsible for implementing the provisions of the consent order. Based on the fact that the tenant had caused the contamination and that contamination led to the consent order requirement that the tenant obligate all successors in interest to the property to implement the cleanup of the property, the New York court held that the warranty clause had been breached.

We acknowledge that there are several noticeable differences between .the case at bar in its present posture and P. B. N. Assoc., supra, such as in the varying warranty languages and the relationships between the parties. The primary distinguishing factor, however, is the absence here of any current obligation on the titles to the properties in issue comparable to that in the consent order in P. B. N. Assoc. Review of the copies of suits pending against appellee, Abalene, and appellant Blank reveals that the State of New York and local authorities seek, inter alia, reimbursement for “all past, present, and future damages to the wildlife, soil, groundwater, wetlands, and other natural resources . . . resulting from the contamination,” and entry of judgment “directing defendants to completely and permanently abate the nuisance” caused by the contamination “by taking such actions as the Court shall find to be necessary . . . including, but not limited to: . . . carrying out a program to terminate all migration of hazardous and chemical wastes, and restoration of the site” as well as “to determine and remedy the effects of exposure on the citizens and residents and public,” “provide forthwith an alternate and permanent water source for the area,” and “to restore the damaged portion of the [Fort Edward] aquifer.” It does not appear that any consent order has been executed or that any plaintiff has specifically sought to have the titles to the properties in issue be encumbered by placing on successors in interest any obligations which may eventually devolve on appellee, as record title owner, regarding the restoration of the properties.

We are not prepared to state, however, that as a matter of law appellee will not be able under any circumstances to assert and recover for the alleged breach of warranty of title under New York law. Questions of fact remain whether appellants knew about the burial of the pesticides on the Fort Edward property; thus, it cannot now be determined whether or not appellants knew the title to the Fort Edward property which they had warranted was or could be subject to an encumbrance like that in P. B. N. Assoc., supra, recognized under New York law as constituting a breach of a title warranty. And in view of the future nature of many of the remedies sought by the plaintiffs in the above law suits, factual issues remain whether any liabilities that may be imposed upon appellee will also be imposed on any successors in interest to the properties involved so as to constitute an encumbrance breaching the title warranty under New York law. Due to the uncertainty whether pivotal factual components in the cited New York case law will manifest themselves in the case at bar, any ruling on this issue would be premature. Giving appellee as respondent the benefit of all reasonable doubts and all reasonable inferences, see generally Blount v. Seckinger Realty Co., 167 Ga. App. 778, 779 (1) (307 SE2d 683) (1983), we find the trial court did not err by denying appellants’ motion for summary judgment as to appellee’s claim under paragraph 3.03 (a) of the purchase agreement.

6. Appellee has asserted three tort claims against appellants for negligence, negligent misrepresentation, and fraud. Appellants contend in their final enumeration that the trial court erred by denying their motion for summary judgment as to these claims “because it is undisputed that the sole factual basis for those tort claims, as established by the testimony of [appellee’s] designated representatives at deposition . . ., is the alleged breach of the same two contractual provisions upon which [appellee’s] contract claims are based.” Thus, appellants’ enumerated error is that the deposition testimony of appellee’s officers, in particular that of Raymond, established that appellee’s claims against them are based on nothing more than appellee’s contentions that the properties failed to comply with the contractual provisions in the purchase agreement. Raymond’s testimony, however, fails to support appellants’ contention. Construed most strongly on behalf of appellee as respondent, see generally Echols, supra, Raymond’s testimony did not constitute an admission by appellee that its sole legal claims were based in contract and that it had no cause of action for fraud, negligence, and negligent misrepresentation. Rather, the obvious import of his testimony was that appellants either knew or should have known about the improper disposal of the pesticides on the three properties, and that the instant lawsuit between the parties would not have arisen had appellee not purchased these properties from appellants. “It is axiomatic that a single act or course of conduct may constitute not only a breach of contract but an independent tort as well, if in addition to violating a contract obligation it also violates a duty owed to plaintiff independent of contract to avoid harming him. [Cits.]” Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 365 (203 SE2d 587) (1973). Nothing said by Raymond in his deposition or any other officer of appellee has foreclosed appellee as a matter of law from pursuing its tort claims against appellants.

Appellants filed a supplemental brief addressing the merits of the tort claims in response to objections raised by appellee in its brief to the above enumeration. Even assuming, arguendo, that these arguments do not improperly enlarge the issue presented by appellants’ enumeration, but see A. L. Williams & Assoc. v. Faircloth, 190 Ga. App. 872, 878-879 (1) (380 SE2d 471) (1989), in view of the uncontroverted evidence that employees of appellants buried pesticides on one of the properties included in the purchase agreement and the conflicting evidence whether appellants knew about the improper burial prior to the execution of the purchase agreement, we find that appellants have failed to carry their burden on motion for summary judgment of proving that they are entitled to judgment as a matter of law because no genuine issues of material fact remain as to appellee’s tort claims. Accordingly, the trial court did not err by denying appellants’ motion on these issues. See generally Lynch, supra at 225.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Banke, P. J., Birdsong, Pope and Cooper, JJ., concur. Deen, P. J., concurs specially. Carley, C. J., and Beasley, J., dissent.

Deen, Presiding Judge,

concurring specially.

While concurring with Divisions 1, 2, 3, 4, and in the judgment, I cannot concur with all that is said in Divisions 5 and 6. The case of A. L. Williams & Assoc. v. Faircloth, 190 Ga. App. 872, 878-879 (1) (380 SE2d 471) (1989), is cited as authority. The cited case was a one-judge case, with two judges concurring in the judgment only. Further, portions of the case were overruled in A. L. Williams & Assoc. v. Faircloth, 259 Ga. 767, 769 (386 SE2d 151) (1989).

Carley, Chief Judge,

dissenting.

I concur in the conclusions of the majority with the exception of Division 5. Because I believe that the trial court erred in denying appellant’s motion for summary judgment as to any and all claims arising under paragraph 3.03 (a) of the purchase agreement, I must dissent to the majority’s affirmance of that part of the judgment of the trial court.

As set forth in the majority opinion, paragraph 3.03 (a) warrants that appellants have “good and valid title to the Assets, free and clear of any lien, security interest, charge, or other encumbrance except for minor imperfections or non-monetary encumbrances which are of such a nature as do not, singly or in the aggregate, materially detract from the value of the Assets for the purposes used, or interfere with the present or continued use of the Assets.” (Emphasis supplied.) This is a standard warranty of title provision that relates to the appellants’ power and authority to convey good title to the property. The claims of appellee in this case are based upon alleged unlawful disposal of hazardous waste on the properties. Even assuming the truth of all of the allegations concerning the condition of the property as a result of appellants’ actions, such condition would not constitute impairment of the title, nor would it be considered a “lien, security interest, charge, or other encumbrance” against the property.

The only New York authority relied upon by appellee or the majority is P. B. N. Assoc. v. Xerox Corp., 529 NYS2d 877 (AD 2 Dept. 1988). In its attempt to strain and stretch P. B. N. Assoc, so as to support the denial of the motion for summary judgment in this case, the majority has had to acknowledge that “there are several noticeable differences between the case at bar” and that New York decision. I submit that the majority’s discussion of these “differences” shows without dispute that P. B. N. Assoc, is distinguishable and inapposite. First and foremost, the clause applicable in the case sub judice is clearly only a warranty of title provision. To the contrary, the provision involved in P. B. N. Assoc. constituted a warranty that the aggrieving party “had committed no act which would cause the [aggrieved party] or the premises to be ‘impeached, charged, claimed against, encumbered, burdened or suffer any loss or damage.’ ” (Emphasis supplied.) P. B. N. Assoc. v. Xerox Corp., supra, 879. The applicable clause in this case does not warrant that appellants have committed “no act” which would cause appellee to “suffer any loss or damage.” Also, as admitted by the majority, there has been no consent order or other document which could in any way affect the title to the property involved. The majority’s affirmance of the denial of the summary judgment in view of the “future nature of many of the remedies sought by the plaintiffs” is tenuous and speculative. Quite simply, the record in this case shows without doubt that appellee cannot prove that appellants breached the warranty of title clause of the agreement between the parties. Summary judgment should have been granted as to this issue and I respectfully dissent.

Decided June 25, 1990.

Rehearing denied July 18, 1990.

Long, Aldridge & Norman, J. Allen Maines, John L. Watkins, for appellants.

I am authorized to state that Judge Beasley joins in this dissent.

On Motion for Rehearing.

On motion for rehearing appellee Orkin contends that in a record exceeding 2,000 pages, we have overlooked evidence not cited by either party which appellee argues pierced appellants’ affirmative defenses so as to render our holding in Division 4 (a) incorrect. This evidence is in the form of answers by appellants to appellee’s second interrogatories. The trial court recited that its judgment was based upon “review of the file of record.” A painstaking review of that record both by this court and by the trial court’s clerk’s office reveals that while the answers are twice present in the record, the interrogatories themselves were never filed. The answers do not reference the questions, and there is nothing in the deposition of appellant Blank, who was presented with those answers, to intimate what information the interrogatories sought in regard to the affirmative defenses in question. Although appellee in its brief quotes interrogatories which it alleges are the questions to the answers in the record, “ ‘[w]e cannot consider facts, related by briefs, which do not appear in the record sent up from the clerk of the lower court.’ [Cit.]” Johnson v. Shield Ins. Co., 189 Ga. App. 333, 334 (375 SE2d 510) (1988). Thus, whatever significance the answers allegedly may have when read together with the interrogatories, in the absence of the interrogatories it is readily apparent that the answers are not sufficient in and of themselves to pierce appellants’ affirmative defenses. Since this is not a situation in which we can construe interrogatory answers to uphold the judgment by presuming the questions propounded were asked in a form so as to authorize the judgment, compare Heard v. McKee, 26 Ga. 332, 342 (1858), appellee’s motion for rehearing is denied.

Decker & Hallman, Richard P. Decker, W. Winston Briggs, for appellee.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A90A0239.
    SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY v. FRANKLIN.
    (396 SE2d 514)
   McMurray, Presiding Judge.

Plaintiff Franklin filed this action for damages arising from a motor vehicle collision against defendant Diggs and her employer, defendant Southern Bell Telephone and Telegraph Company (“Southern Bell”). At trial, a verdict was directed in favor of plaintiff on the issue of liability and the jury awarded damages of $300,000. Defendant Southern Bell only appeals and enumerates as error the direction of the verdict as to liability and the admission of certain medical testimony. Plaintiff’s action as to defendant Diggs was subsequently voluntarily dismissed without prejudice after defendant Southern Bell filed its notice of appeal. Held:

1. The collision occurred at approximately 5:00 or 5:30 p.m. on a rainy February day. Defendant Diggs was in a company vehicle returning to her work center when she exited from Interstate 285 at Jonesboro Road. Defendant Diggs testified that: “As I was getting off of the ramp, I started to apply my brakes because it was wet. I did have on my seat belt and I did have my lights on and when I got to a certain point — and I believe it was just about maybe near where the incline started to level out — my brakes weren’t holding, I wasn’t going to stop. I could see that I was not going to stop and the light was red and in order to avoid — traffic was coming southbound, and in order to try to avoid going out into the intersection and into the oncoming traffic, I turned my wheels to the right and had the accident. . . .” Defendant Diggs also testified that she had been paying attention prior to the accident and was very much surprised when she realized she was not going to be able to stop.

Plaintiff introduced evidence of an internal investigation by defendant Southern Bell which concluded that when defendant Diggs applied brakes to slow down the vehicle began to hydroplane, causing a loss of control and the collision. An employee of Southern Bell, who participated in the internal investigation of the collision, opined that defendant Diggs “was driving too fast, because the vehicle didn’t stop and went into the intersection.” However, this witness further testified that his opinion was predicated in part upon a police report and that “the police report stated that the speed limit was 35 miles an hour at where the accident occurred and the employee was allegedly driving 20 miles an hour.” The testimony of defendant Diggs indicates that she was well trained and experienced in the operation of the company vehicles, was attentive to her driving prior to the collision, and had adjusted her driving in response to the rainy conditions. “ ‘(I)t is common knowledge that an automobile may skid on a slippery highway without any negligence on the part of the operator.’ [Cit.]” Foy v. Edwards, 118 Ga. App. 665, 666 (1), 667 (165 SE2d 176). The evidence did not demand a verdict for plaintiff. The trial court erred in directing the verdict on the issue of liability in favor of plaintiff. Id.

Decided July 3, 1990

Rehearing denied July 19, 1990 — Cert, applied for.

Glass, McCullough, Sherrill & Harrold, R. Philip Shinall III, Susan L. Goodman, for appellant.

James A. Goldstein, Dennis M. Redic, for appellee.

2. Defendant Southern Bell also enumerates as error the admission of expert opinion testimony by Dr. Stiller, a physician who had treated plaintiff, which opinion was based on reports and tests, prepared by others, who did not testify at trial, and which were not admitted into evidence. “Generally, an expert’s opinion cannot be stated upon facts or reports which are not admitted in evidence. OCGA § 24-9-67; Dual S. Enterprises v. Webb, 138 Ga. App. 810, 813 (227 SE2d 418). Thus, in the realm of expert medical testimony it is said: ‘Opinion testimony based merely upon records and case history furnished the witness by other doctors and not a part of the evidence in the case is objectionable.’ Zurich Ins. Co. v. Zerfass, 106 Ga. App. 714, 719 (128 SE2d 75).” Andrews v. Major, 180 Ga. App. 393, 394 (2), 395 (349 SE2d 225). The trial court erred in admitting Dr. Stiller’s opinions which were predicated in part on the opinions of other health care providers, which were not admitted into evidence. See Stouffer Corp. v. Henkel, 170 Ga. App. 383, 386 (2) (317 SE2d 222); Buffalo Cab Co. v. Gurley, 134 Ga. App. 167, 168 (1) (213 SE2d 545).

Judgment reversed.

Sognier, J., concurs. Carley, C. J., concurs in Division 1 and in the judgment.


author: Pope, Judge.

text:
    A90A0468.
    MOORE et al. v. POPE.
    (396 SE2d 243)
   Pope, Judge.

This appeal follows the trial court’s grant of a petition brought by appellee Jodie Denise Pope seeking to adopt a child known as Cameron Keith Pope. The facts surrounding this unusual case, as they appear in the record before us, are as follows: Pope gave birth to a male child on October 7, 1983 at the Griffin-Spalding County Hospital. On that same date Tina Williams also gave birth to a male child at that hospital. Both Pope and Williams were discharged on October 9, 1983. Unbeknownst to Pope and Williams, however, each was discharged with the other’s child. Williams placed the child she was discharged with, believing it to be her natural child, with the Spalding County Department of Family & Children Services for the purpose of allowing the child to be adopted. As shown by the prior adoption records, which were opened on Pope’s motion, appellants Eugene and Edith Moore subsequently adopted the Williams’ child and renamed the child Melvin Eugene Moore. However, the child actually placed in their custody was Pope’s natural child.

In September 1988 Pope and her then husband (the couple is now divorced) discovered that they had been discharged with the Williams’ child; subsequent investigation revealed that their natural child had been in the custody of the Moores since April 1984. Pursuant to OCGA § 19-8-6, Pope filed a petition to adopt the Williams’ child, whom she had reared to date, and to gain custody of her natural child. The Moores, as the legally adoptive parents of the Williams’ child, filed a brief in opposition to Pope’s adoption petition. They also filed a petition for custody of Pope’s natural child, whom they had reared to date, in the Circuit Court of Hardin County, Kentucky, where they and the child reside. Although not contained in the record before us, the Kentucky court apparently issued an order transferring the Moores’ custody petition to Georgia and the Moores have appealed that decision to the Kentucky appellate courts. Consequently, the only issue before this court concerns the trial court’s ruling on Pope’s adoption petition. Held:

OCGA § 19-8-3 (a) provides the exclusive means for adopting a child with a living parent or guardian “[e]xcept as otherwise specified in Code Section 19-8-6 . . . .” The trial court, relying solely on subsection (b) of OCGA § 19-8-6, determined that the adoptive parents had “failed significantly for a period of one year immediately prior to the filing of the adoption petition to communicate or provide for support of [their adoptive child]” and, finding that the adoption was in the best interest of the child, granted Pope’s petition for adoption. Subsection (b), however, “is applicable only to adoption proceedings brought by a stepparent or relative. . . .” Curde v. Matson, 190 Ga. App. 782, 783 (1) (380 SE2d 71) (1989). See also OCGA § 19-8-3 (a) (4) & (5). Consequently, the trial court erred in applying that subsection to the case at hand, inasmuch as the petition was not brought by a stepparent or other relative.

Decided June 4, 1990

Rehearing denied July 19, 1990 — Cert, applied for.

John T. Newton, Jr., for appellants.

Thomas W. Malone, Middleton & Anderson, Robert H. Benfield, Jr., for appellee.

In cases such as the instant one, “[a]ppellate judges . . . need and make . . . prayer for Solomon-like sagacity, but we are limited in action because we serve as a court for the correction of legal errors.” K. E. S. v. State, 134 Ga. App. 843, 844 (216 SE2d 670) (1975). In this case, we presently have before us only the matter of Pope’s adoption petition and our review of the relevant statutory law (OCGA §§ 19-8-3; 19-8-6) discloses no provision which would authorize the trial court to grant that petition. Likewise, we are without authority to fashion a remedy for these unfortunate litigants and if a solution is to be had by others who find themselves in similar circumstances it must come from the legislature. Consequently, and inasmuch as we can discern no legal basis which would allow us to sustain the grant of the petition to adopt here, the judgment of the trial court must be reversed.

Judgment reversed.

Deen, P. J., and Beasley, J., concur.

       Because the trial court erred in applying OCGA § 19-8-6 (b) to the facts of this case, we need not consider the effect of our Supreme Court’s decision in Thorne v. Padgett, 259 Ga. 650 (386 SE2d 155) (1989), declaring that subsection to be unconstitutional, or the applicability of the subsequent amendment to that section. Ga. L. 1990, p. 1572.


author: McMurray, Presiding Judge. Carley, Chief Judge,

text:
    A90A0672.
    PHILLIPS et al. v. CONNECTICUT NATIONAL BANK et al.
    (396 SE2d 538)
   McMurray, Presiding Judge.

On April 5, 1988, The Connecticut National Bank (“Connecticut National”) sold several lots in Alison Plaza Subdivision (“Plaza I”) and Alison Plaza II Subdivision (“Plaza II”) pursuant to the powers of sale contained in security deeds executed by defaulting property owners. On May 3, 1988, confirmation applications were filed against Ward W. Phillips and Anne Nipper Phillips (owners of lot 5, Plaza I), Elisabeth Richter (owner of lot 8, Plaza I), J. R. Oviedo (owner of lots 5 and 6, Plaza II), Roland D. Chance, Jr. (owner of lot 12, Plaza I), Larry M. Hoffman (owner of lots 9 and 10, Plaza I) and William Allen Cochrane (owner of lots 7 and 8, Plaza II). The superior court of the county in which the lots are located accepted the confirmation applications and directed that confirmation hearings be scheduled to determine the regularity of the foreclosure sales. The superior court also ordered Connecticut National to serve each of the defaulting property owners with “a copy of said Application and this Order ... at least five (5) days prior to the hearing thereon.” On August 16, 1988, an attorney acknowledged service for the defaulting property owners and waived “any further service from this date on behalf [of his clients].”

On September 6, 1988, a consensual order of consolidation was entered, bringing all of the confirmation applications into one proceeding. A confirmation hearing was conducted on April 24, 1989, and the defaulting property owners’ attorney acknowledged that he received proper notice of the confirmation hearing “two weeks ago or something like that. . . .”

On May 1, 1989, the superior court judge entered an order and confirmed the foreclosure sales. This appeal followed. Held:

' 1. The defaulting property owners contend in their first two enumerations that the confirmation applications are barred by a 30-day limitation period prescribed by OCGA § 44-14-161 (a). More specifically, the defaulting property owners cite OCGA § 9-11-4 (c) and argue that Connecticut National’s failure to serve them within 5 days after the 30-day limitation period resulted in a lapse of the statute of limitation, cutting off Connecticut National’s right to bring the confirmation proceedings. This reasoning is flawed.

OCGA § 44-14-161 (a) does not require that a debtor be served with notice of the application for confirmation within 30 days of the foreclosure sale, it prohibits the recovery of a deficiency judgment if a “person instituting [a non-judicial] foreclosure proceedings [does not], within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval. . . .’’In confirmation proceedings, it is only required that a defaulting property owner be given at least five days notice before the confirmation hearing. OCGA § 44-14-161 (c). See Oviedo v. Conn. Nat. Bank, 194 Ga. App. 626 (391 SE2d 417) (1990).

In the case sub judice, it is not disputed that Connecticut National filed the confirmation applications within 30 days of the foreclosure sales and that the defaulting property owners received notice of the consolidated confirmation hearing at least five days prior thereto. Consequently, Connecticut National is not barred from prosecuting the confirmation applications.

2. In their third enumeration, the defaulting property owners contend the trial court erred “[i]n granting a supersedeas bond in the amount of $100,000.00.” They argue that $100,000 is “an exorbitant amount and thus . . . improper . . . .”

OCGA § 5-6-46 (a) vests the trial court with authority to order a supersedeas bond “in such amount as the court may require. . . .” There is nothing in the record to indicate that the trial court abused its discretion in ordering a $100,000 supersedeas bond. This enumeration is without merit.

Judgment affirmed.

Sognier, J., concurs. Carley, C. J., concurs specially.

Carley, Chief Judge,

concurring specially.

I fully concur in Division 1 of the majority opinion and agree with the reasoning and analysis set forth therein. I also concur in the judgment.

However, in Division 2, the majority addresses appellants’ enumeration of error directed to the grant of a supersedeas bond pursuant to OCGA § 5-6-46. In actual fact, there were two orders granting bonds, but both were entered after the filing of the notice of appeal. The notice of appeal was not amended to encompass either of the orders requiring a supersedeas bond. Therefore, the orders for supersedeas bonds are not before this Court and cannot be considered. It. is my opinion that the majority incorrectly addresses the merits of this enumeration.

However, since the majority has addressed this enumeration, I am constrained to point out that were the issue properly before this Court, I would be compelled to dissent to the majority’s conclusion that the trial court did not err in granting the supersedeas bond. As stated, there were two bonds granted, one in the amount of $33,200 and one in the amount of $100,000. Appellants apparently complain only of the order requiring the bond in the amount of $100,000, and that is the bond to which Division 2 of the majority opinion refers. The provisions of § 5-6-46, providing for a supersedeas bond, primarily apply to cases in which a money judgment is entered or where the judgment determines disposition of property in controversy. In this and all other confirmation cases, the judgment of the superior court neither awards a money judgment, nor provides for the disposition of any property. In fact, there can never be a deficiency judgment entered in the confirmation proceedings itself. See Robinson v. Kemp Motor Sales, 185 Ga. App. 492 (364 SE2d 623) (1988). Therefore, if § 5-6-46 were applicable at all to the instant case, it would allow the trial court to require supersedeas bond in an amount inclusive only of costs and damages for delay in the event the appeal is dismissed or determined to be frivolous. Thus, the trial court was without authority to require the posting of a supersedeas bond in the amount of $100,000 and, if the order so requiring had been properly appealed, the same would have been subject to reversal.

Decided July 12, 1990

Rehearing denied July 19, 1990 — Cert, applied for.

Glenville Haldi, for appellants.

Douglas R. Thompson, Diane F. Schussel, McCalla, Raymer, Padrick, Cobb & Nichols, R. Teresa Perrotta, for appellees.


author: Pope, Judge. Beasley, Judge,

text:
    A90A0071.
    SANTIAGO v. SAFEWAY INSURANCE COMPANY.
    (396 SE2d 506)
   Pope, Judge.

Plaintiff Dr. Lad Santiago provided health care to three patients injured in an automobile collision. Defendant Safeway Insurance Company was the no-fault carrier for the three injured parties. Safeway received notification that all three executed an agreement assigning their rights to insurance proceeds to Dr. Santiago. However, benefits were paid directly to the injured parties and Dr. Santiago was not paid. He filed suit against Safeway for the value of health care services provided to the insureds plus interest, and for punitive damages and expenses of litigation and attorney fees. The trial court granted summary judgment to Safeway and denied Dr. Santiago’s motion for partial summary judgment on the issue of whether the assignments of benefits entitled him to payment plus interest. Plaintiff Santiago appeals.

1. “[An insurance] policy may be assignable or not assignable, as provided by its terms.” OCGA § 33-24-17. In this case, the policy providing coverage contained language stating that the insured’s “rights and duties under this policy may not be assigned without our written consent.” Safeway did not consent to the assignments of benefits by the insureds to Dr. Santiago. However, the assignments did not assign the policy itself but only the benefits due the insureds after the loss had already occurred. The assignments did not in any way affect the risk insured by the policy. Cf. James v. Pa. Gen. Ins. Co., 167 Ga. App. 427 (306 SE2d 422) (1983) (in which this court announced a “risk-focused analysis” in resolving whether transfer of title to insured property affected the insurer’s liability).

“After [a] loss, the claim of the insured, like any other chose in action, could be assigned without in any way affecting the insurer’s liability. It has been held, rightly we think, that a condition in a policy of . . . insurance prohibiting an assignment or transfer of the same after loss, without the consent of the insurer, is null and void, as inconsistent with the covenant of indemnity and contrary to public policy. . . . No right of the insurer being affected by the assignments of the policies, it would be a mere act of caprice or bad faith for it to take advantage of the stipulation that the transfers were subject to its consent, by withholding such consent in order to defeat the claim of the assignee. The assignments being perfectly valid without the consent of the insurer, and its rights being in no way affected thereby, the condition in question was superfluous, and the law will not tolerate its enforcement against the assignee.” (Citations omitted.) Georgia Co-Op. Fire Assn. v. Borchardt & Co., 123 Ga. 181, 183-184 (51 SE 429) (1905). Interest in the proceeds of a policy of insurance after a loss to the insured has occurred may be assigned just as any other chose in action. Canal Ins. Co. v. Savannah Bank &c. Co., 181 Ga. App. 520 (4) (352 SE2d 835) (1987); Pacific Ins. Co. v. R. L. Kimsey Cotton Co., 114 Ga. App. 411 (3) (151 SE2d 541) (1966).

The law of other jurisdictions appears to recognize the right of an assignee of insurance benefits to bring an action to recover payment. “An assignment of the policy after loss, or in other words an assignment of the claim for the loss, is valid, and transfers to the assignee the right to the proceeds of the insurance. . . . Such an assignment is valid, even though the policy provides that it shall be void if assigned, either before or after the loss, without the consent of insurer, for such an assignment relates to the cause of action and not to the policy.. . . If insurer has notice of the assignment . . . and, if insurer thereafter pays the proceeds to insured or his creditors, it does not discharge itself from liability to the assignee.” 46 CJS, Insurance, § 1152 (1946). Interpreting Georgia law, the United States District Court for the Northern District of Georgia has held that a hospital, as assignee of benefits due under a policy of insurance, is entitled to maintain an action against a health insurance company for benefits due. See Hospital Auth. of Fulton County v. State Mut. Life Assur. Co. &c., No. 1:87-CV-2305-MHS, unpublished slip op. (N.D. Ga. Aug. 14, 1989). We agree that where the insurance company had notice of the assignment, the health care provider may maintain an action for benefits due under the policy.

In both Reserve Life Ins. Co. v. Peavy, 94 Ga. App. 31 (93 SE2d 580) (1956), and Vulcan Life Ins. Co. v. Davenport, 191 Ga. App. 79 (380 SE2d 751) (1989), the insurance companies defended an action by the insured on the ground that the insured’s assignment to a health service provider vested the right to sue to recover benefits solely in the assignee. In both those cases the issue presented for review was whether the insured retained a right to maintain an action for insurance benefits if the insured had assigned the benefits to a health care provider. In both cases this court held that the insured still had standing to bring an action for payment of benefits. Thus, the statement contained in both those opinions that the assignment does not authorize the assignee to bring suit on the policy in its own name is dicta.

The Davenport opinion adopted the language of the earlier Peavy opinion, which recognized that a health care provider, which had been assigned benefits from an insurance policy, had a substantial interest in the benefits but that its interest could be asserted only in the name of the insured. However, Peavy was decided prior to the enactment of the Civil Practice Act. In support of its holding, the court in Peavy cited Jones v. Reed, 58 Ga. App. 72 (2a) (197 SE 665) (1938), which was governed by § 81-1307 of the 1933 Code of Georgia allowing the named party in a lawsuit to sue for the “use” of another unnamed party. That former Code section was repealed and replaced by the Georgia Civil Practice Act (Ga. L. 1966, p. 609 et seq.). Our current law allows an action to be brought in the name of the real party in interest which, in the case at hand, is the health care provider/assignee. See OCGA § 9-11-17 (a). To the extent the opinions in Davenport and Peavy are inconsistent with our holding in this case and the holding in Georgia Co-Op. Fire Assn. v. Borchardt & Co., supra, they are disapproved.

2. “[A] debtor of the assignor, who has notice of the assignment, [pays] the debt to the assignor ... at his own peril. ‘It is the established rule in the United States that an assignment for a valuable consideration, with notice to the debtor, imposes on him an equitable and moral obligation to pay the assignee.’ [Cit.]” Metropolitan Life Ins. Co. v. Morrow, 10 Ga. App. 433 (2) (73 SE 607) (1912). Here, Safeway had notice of the assignment but nevertheless paid all benefits to the insureds rather than the assignee, Dr. Santiago. Thus, Safeway is liable to the assignee and Dr. Santiago is entitled to partial summary judgment. See United States v. Mercury Motor Express, 294 FSupp. 919 (S.D. Ga. 1968).

Judgment reversed.

Carley, C. J., McMurray, P. J., and Cooper, J., concur. Sognier, J., concurs in judgment only. Deen, P. J., Banke, P. J., Birdsong and Beasley, JJ., concur specially.

Beasley, Judge,

concurring specially.

1. In this case, the insured’s assignee, who provided health care, sued to enforce his right to proceeds of the insured’s coverage. In Vulcan Life Ins. Co. v. Davenport, 191 Ga. App. 79 (380 SE2d 751) (1989), the insured sued to enforce both his and the assignee/providers’ recovery of the proceeds. In both cases the contract itself was not assigned, only the benefits due after the loss occurred, so that the assignments did not affect the risk insured by the policies. In both cases the insurer attempted to avoid payment of the proceeds on the ground that the party suing under the policy was not authorized to do so in its own name because of the assignments. Both cases reached the same result, i.e., allowing the plaintiffs to bring suit in their own names and directly recover the insurance benefits.

Decided June 28, 1990

Rehearing denied July 20, 1990 — Cert, applied for.

Glenville Haldi, for appellant.

Crim & Bassler, Harry W. Bassler, Philip G. Pompilio, for appellee.

Leon Van Gelderen, James D. Hollingsworth, Jason T. Schneider, amici curiae.

Davenport allowed the action to be maintained by the insured, who had assigned some of the benefits under the policy to the health care provider, for the “use” of the assignee under the authority of Reserve Life Ins. Co. v. Peavy, 94 Ga. App. 31 (93 SE2d 580) (1956), which was governed by former Code Ann. § 81-1307. This decision permits the assignee/provider to sue in his own name for the benefits due as the real party in interest under OCGA § 9-11-17 (a), noting that the latter provision repealed the former. Since the “use” theory relied upon in Peavy was derived from the repealed statute, that portion of the quote in Division 6 of Davenport from Peavy indicating by dicta that only the insured could sue is properly disapproved. However, the result reached was not inconsistent with the holding in this case.

2. I cannot adopt as the law of Georgia the entire statement quoted from CJS, insofar as it equates an assignment of the policy with an assignment of the claim for loss. The two are distinct and different. Davenport and Santiago both involve only assignments of the right to benefits, that is the claim, not the policy contract itself.

I am authorized to state that Presiding Judge Deen, Presiding Judge Banke, and Judge Birdsong join in this special concurrence.


author: Carley, Chief Judge.

text:
    A90A0646.
    WALL v. SOUTHERN RAILWAY COMPANY.
    (396 SE2d 266)
   Carley, Chief Judge.

While crossing two parallel railroad tracks at their intersection with a city street, appellant-plaintiff was struck by one of appelleedefendant’s trains. Seeking to recover for the injuries that he suffered, appellant brought this negligence action against appellee. He appeals from the trial court’s grant of appellee’s motion for summary judgment,

1. Construed most favorably to appellant, the record reveals the following: When appellant approached the railroad crossing, one of appellee’s trains was stopped so that its caboose blocked half of the crossing. After waiting one-half hour, appellant followed two other pedestrians around the caboose of the stationary train and was struck by another of appellee’s trains that was traveling on the parallel track. Appellant’s view of the moving train was obstructed by the stationary train. Although there were no “guards down” at the intersection, appellee presented unrebutted evidence that the crossing was equipped with other warning devices which were operational during the time in question. Moreover, the lights, bells and whistle on the moving train were in operation and the train was proceeding very slowly, eight to ten miles per hour. The railroad signal for the moving train was green.

“Relying upon OCGA § 46-8-292, [appellant] contends a genuine issue of material fact remains with respect to [appellee’s] negligence vel non. Pursuant to that Code section, a rebuttable presumption of negligence arises whenever a person is injured on a railroad track by the running of locomotives or cars of railroad companies. The presumption disappears, ‘however, ‘when the railroad company introduces evidence showing the exercise of reasonable care and skill, that is, ordinary care, by its employees in the operation of the train at the time and place in question (Cit.)’ [Cit.] In view of [appellee’s] showing of ordinary care, it was up to [appellant] to show by the evidence that there remains a genuine issue for trial. OCGA § 9-11-56 (e). Moreover, it was incumbent upon [appellant] to make this showing without any aid from OCGA § 46-8-292. [Cit.]” Houston v. Ga. Northeastern R. Co., 193 Ga. App. 687, 688 (388 SE2d 762) (1989).

Appellee contends that “[t]he mere act of stopping railroad cars on a crossing for such a length of time as might be reasonably necessary in the conduct of the railroad’s business would not constitute negligence on the part of [appellee].” (Emphasis in original.) Atlantic Coast Line R. Co. v. Marshall, 89 Ga. App. 740, 743 (2) (81 SE2d 228) (1954). There is, however, evidence in the instant case other than appellee’s mere act of stopping one of its trains on a crossing. There is also evidence of the obstruction of appellant’s vision by one of appellant’s trains that was partially blocking a two-track crossing for a half-hour. “ ‘While a railway company has generally the right to [stop] cars upon its sidetracks, it is a jury question whether the [stopping] of cars upon a particular sidetrack, under stated circumstances, is negligence as related to one whose injury may have been caused or contributed to by the improper or untimely placing of such cars.’ . . . [T]he maintaining of cars on sidetracks so as to obstruct the view of persons entering the crossing may be considered by the jury as a separate act of negligence contributing to the injury although other acts of negligence might be alleged in regard to the speed of the train, failure to signal and to provide flagmen, etc.” (Emphasis in original.) Western & Atlantic R. Co. v. Davis, 116 Ga. App. 831, 835-36 (1b) (159 SE2d 134) (1967). See also Atlantic Coast Line R. Co. v. Clark, 93 Ga. App. 278 (91 SE2d 386) (1956).

Moreover, “the mere presence of safety precautions such as automatic signalling devices [neither] renders the railroad free from negligence as a matter of law, [n]or relieves it from adopting such other measures as public safety and common prudence dictate.” Seaboard Coast Line R. Co. v. West, 155 Ga. App. 391, 392 (1) (271 SE2d 36) (1980). See also Isom v. Schettino, 129 Ga. App. 73, 75 (1) (199 SE2d 89) (1973). This would be especially true where, as here, the automatic signalling devices were in operation for a half-hour due to the presence of a stationary train which otherwise obstructed appellant’s view of the moving train on the parallel track. Cf. Seaboard Coast Line R. Co. v. West, supra at 392 (1). “[O]rdinarily a railroad is not bound to maintain a watchman or flagman at a crossing, but must do so if the particular circumstances demand it. We hold that the evidence in this case would authorize [a] jury, under all the facts and circumstances involved here, to find that [appellee] should have exercised more diligence than this record reveals.” Atlantic Coast Line R. Co. v. Assoc. Transports, 94 Ga. App. 563, 566 (3) (95 SE2d 755) (1956). The failure to employ additional precautions “ ‘ “may amount to negligence under the particular facts and circumstances, although there is no statute so declaring.” (Cit.)’ ” Southern R. Co. v. Ga. Kraft Co., 188 Ga. App. 623, 624 (5) (373 SE2d 774) (1988).

2. Appellee further contends that, even if it were negligent, appellant failed to exercise ordinary care for his own safety as a matter of law and, thus, appellant is barred from any recovery. See OCGA § 46-8-291. There may be evidence of record “sufficient to authorize the inference that [appellant], in crossing the railroad-tracks, was not in the exercise of ordinary care, and in so doing was guilty of such negligence as proximately caused the injuries or contributed thereto.” (Emphasis supplied.) Central of Ga. R. Co. v. Cooley, 44 Ga. App. 118, 119 (2) (160 SE 812) (1931). Nevertheless, even the fact that appellant “may have been aware of the ‘obstruction’ does not mandate the finding that [he] failed, as a matter of law, to exercise ordinary care in crossing the track. ‘ “Questions as to diligence and negligence, including contributory negligence, being questions peculiarly for the jury, the court will decline to solve them . . . except in plain and indisputable cases.” (Cit.)’ [Cit.] . . . [I]t was not incumbent upon [appellant] to exercise that degree of care which would have absolutely prevented [his] injuries.” (Emphasis supplied.) Farmers Mut. Exchange v. Milligan, 156 Ga. App. 38, 39 (274 SE2d 83) (1980). See also Central of Ga. R. Co. v. Gibson, 90 Ga. App. 512, 517-518 (4) (83 SE2d 271) (1954).

“Where the evidence does not disclose, as in this case, whether or not the injured person failed to look or listen, in the absence of evidence to the contrary it is presumed that he complied with any duty that may have devolved upon him in that regard. [Cits.] . . . There being no evidence to show what precautions [appellant] took before going on the crossing, or as to whether he discovered the negligence of [appellee] in time to avoid it, or that he could have avoided it by the exercise of ordinary care, the [trial] court should have [denied appellee’s motion for summary judgment]. [Cit.]” Collier v. Pollard, 60 Ga. App. 105, 109-110 (2 SE2d 821) (1939). See also Dodd v. Callaway, 76 Ga. App. 629, 635-36 (3) (46 SE2d 740) (1948). The conclusion that appellant must not have looked may “be drawn by a jury, but only rarely may it be drawn by an appellate court, and never where there is evidence . . . that obstructions did exist along the roadway and the railroad right of way. [Cit.]” Seaboard Coast Line R. Co. v. Mitcham, 127 Ga. App. 102, 104 (1) (192 SE2d 549) (1972).

Decided July 3, 1990

Rehearing denied July 20, 1990.

James E. Thompson, for appellant.

Neely & Player, Edgar A. Neely III, Tami L. Brown, for appellee.

3. Genuine issues of material fact remain, both as to appellee’s negligence and appellant’s failure to exercise ordinary care for his own safety. It follows that the grant of summary judgment in appellee’s favor must be reversed.

Judgment reversed.

McMurray, P. J., and Sognier, J., concur.


author: Beasley, Judge.

text:
    A90A0027.
    PIEDMONT ENGINEERING & CONSTRUCTION CORPORATION v. BALCOR PARTNERS-84 II, INC. et al.
    (396 SE2d 279)
   Beasley, Judge.

Plaintiff Piedmont Engineering .& Construction Corp. (Piedmont), f/k/a Park Colony Apartments, Inc. (Colony Apartments), and f/k/a Park Lake Apartments, Inc. (Lake Apartments) appeals the denial of summary judgment to it and the grant of summary judgment to defendants Balcor Partners-84 II, Inc. (Balcor Partners), BRI Partners-81 (BRI), and Balcor Property Management, Inc. (Balcor Management) (all being Balcor Company affiliates). Two suits were consolidated below. They sought to recover almost two million dollars in what Piedmont contends were real estate brokerage commissions and property management fees illegally obtained by defendants in the construction and sale of two apartment complexes and the management of one. The claims of illegality are that defendants were not licensed in Georgia as real estate brokers at all times pertinent. The Georgia Association of Realtors, Inc. and the Real Estate Securities and Syndication Institute and its Georgia Chapter filed amicus curiae briefs.

An explanation of the parties’ business relationships and transactions sets the context.

It was the usual course of business for Balcor to enter into negotiations with local builders and developers with regard to the construction of real estate projects that would ultimately be acquired by a Balcor-created limited partnership. Often, the limited partnership would not be created until after all terms and conditions of the deal had been fully negotiated and agreed upon by the developer and Balcor. In most such instances, funding for the purchase would come through a Balcor investment fund, which frequently acted as the general partner for the purchase.

In 1981, Piedmont and Balcor entered into a series of agreements for the construction and purchase of Park Lake Apartments. Balcor formed an Illinois limited partnership, Park Lake Associates, Ltd. (Lake Associates) to purchase the apartments and created BRI to be the general partner of the general partner of the purchaser. Builder/ developer Piedmont created a wholly-owned corporate subsidiary, Lake Apartments, to function as seller/manager of the project. Lake Apartments as seller, Lake Associates as buyer, and Piedmont as guarantor entered into a purchase agreement and closing was on March 2, 1981.

Article XIV of the purchase agreement was labeled “Brokerage Commissions” and provided in part: “Seller represents that it has dealt with no brokers other than BRI Partner-81 (‘BRI’), in connection with said sale. Seller has agreed to pay to BRI commissions in the aggregate amount of $631,825.00, on account of this transaction as follows: $601,825.00 on November 1, 1981, and $30,000.00 on August 31, 1983.”

Similarly, in 1983, Piedmont and Balcor entered into a series of agreements for the construction and purchase of Park Colony Apartments. To effect this project, Balcor created the Illinois limited partnership, Park Colony Investors, Ltd. (Colony Investors) to buy the apartments, with the corporation Balcor Partners as the sole general partner. Piedmont, again as builder/developer, created a wholly-owned subsidiary and Georgia limited partnership, Colony Apartments, to be the seller/manager of the project. This transaction likewise included a purchase agreement between Colony Apartments as seller, Colony Investors as buyer, and Piedmont as guarantor. It closed on May 23, 1983.

Section 14.3 of Article XIV of the agreement provided in part: “Seller has agreed to pay to Balcor Partners a fee in the amount of $962,260.00 on account of this transaction (the ‘Acquisition Fee’), said Acquisition Fee to be due and payable April 1, 1985.”

The agreement also provided for, and the parties executed, a “Management and Cash Flow Guaranty Agreement” whereby Colony Apartments agreed to manage the Park Colony Apartments. There was also a “Sub-Management Agreement” under which Balcor affiliate, Balcor Management was to actually manage the property.

Management fees to Balcor Management for Colony were $51,390 in 1984, $83,383 in 1985, and $81,749 in 1986, a total of $216,522. Pursuant to the “Management and Cash Flow Guaranty Agreement,” Colony Investors paid Piedmont’s Colony Apartments incentive management fees totaling $2,206,891 for 1984, 1985, and 1986.

Several years after Colony, Piedmont and Balcor undertook a third apartment project, which was financed and managed in a similar fashion. A dispute arose over the management by Balcor Management of this third project, resulting in a 1987 federal suit by Piedmont against Balcor Management. In late October 1987, wholly-owned subsidiaries Colony Apartments and Lake Apartments merged into Piedmont. During the course of the dispute, in mid-1987, Piedmont learned that no Balcor entity held a Georgia real estate license.

On May 4, 1988, Piedmont filed the present two actions, one seeking, among other things, the $631,825 in “brokerage commissions” to BRI in the Lake transactions (Balcor Management, originally a defendant, was voluntarily dismissed without prejudice), and the other seeking, in part, the $962,260 “acquisition fee” to Balcor Partners as well as the $216,522 management fees to Balcor Management on the Colony project. The basis for the suits was the contention that the Balcor affiliates were not or should not be entitled to the fees because the entities were not licensed under the Georgia real estate laws.

The parties filed cross-motions for summary judgment in both actions and the trial court entered the appealed-from consolidated order granting judgment to the Balcor defendants and denying it to plaintiff Piedmont. The linchpins of Piedmont’s argument below were Drake v. Parkman, 79 Ga. App. 679 (54 SE2d 714) (1949) and Grant v. Elder, 146 Ga. App. 64 (245 SE2d 341) (1978). In its order, the trial court discussed Drake and Grant and concluded that they should not be “strictly applied” in the cases at bar.

Piedmont’s argument is that the court fundamentally misapplied the law as stated in the two decisions and that it did not decide the ultimate issue of whether or not the subject activities of the Balcor affiliates in the Lake and Colony transactions required licensing under Georgia law. It urges that the uncontested facts clearly demanded a finding that licensing was required, entitling it to summary judgment.

1. The threshold question is the timeliness of Piedmont’s claims.

The essence of both actions is the claim for money had and received, resulting in unjust enrichment. “ ‘(T)he theory of money had and received (is) a legal remedy involving the equitable principle that one ought not in equity and good conscience retain money where he would be enriched unjustly at the expense of another.’ [Cit.] Thus, recovery is authorized against one who holds the money of another which he ought in equity and good conscience to refund. [Cits.]” International Indent. Co. v. Bakco Acceptance, 172 Ga. App. 28, 32 (2) (322 SE2d 78) (1984). See also Barton & Ludwig v. Thompson, 170 Ga. App. 187, 188 (316 SE2d 786) (1984). The statute of limitation for a legal action for money had and received is four years. OCGA § 9-3-25; Sun Fed. Savings &c. Assn. v. Manny, 156 Ga. App. 807, 808 (2) (275 SE2d 661) (1980). Even if the actions were for breach of an implied promise of licensing, the four-year limitation would apply. OCGA § 9-3-25.

As to the Lake suit; the two payments amounting to the $631,825 m alleged “commissions” to BRI occurred on November 1, 1981, and August 31, 1983. Piedmont’s action, filed May 4, 1988, was time-barred.

Likewise, any claim in the Colony suit against Balcor Management for management fees collected prior to May 4, 1984 is too late.

The four-year statute of limitation was not tolled merely because Piedmont did not discover the lack of licensing until it inquired of the Georgia Real Estate Commission in mid-1987. Assuming that licensing of the Balcor affiliates was required for the transactions, there is no evidence that the Balcor affiliates ever represented to Piedmont that they were licensed. Nor is there any evidence that Piedmont made any inquiry about licensing to defendants or to state licensing authorities prior to the parties’ dispute. There is no evidence that this could not have been done earlier. There is evidence that licensing status was readily ascertainable. Reasonable diligent inquiry would have made the lack of licensing timely known to Piedmont, so the statute of limitation was not tolled. See Bowen & Bowen v. McCoy-Gibbons, 185 Ga. App. 298, 301 (1) (a) (363 SE2d 827) (1987).

Summary judgment to BRI in the Lake action and to Balcor Management in the Colony action for management fees collected prior to May 4, 1984 was mandated.

2. Summary judgment in favor of defendant Balcor Partners was also in order on Piedmont’s Colony “acquisition fee” claim.

Even though the trial court relied on its interpretations of Drake and Grant in awarding judgment to defendants, it is not necessary to assess this application because Balcor Partners was entitled to judgment in light of the applicable statutes.

OCGA § 43-40-30 provides that “[a]ny person who, directly or indirectly, with the intention or upon the promise of receiving any valuable consideration, offers, attempts, or agrees to perform, or performs, any single act defined in paragraph (2) of Code Section 43-40-1, whether as part of a transaction or as an entire transaction, shall be deemed a licensee within the meaning of [Chapter 40]. The commission of a single such act by a person who is required to be licensed under [Chapter 40] but who is not so licensed shall constitute a violation of [Chapter 40].”

OCGA § 43-40-1 (2) defines “broker” as “any person who, for a fee, commission, or any other valuable consideration or with the intent or expectation of receiving the same from another, negotiates or attempts to negotiate, or assists in procuring prospects for the listing, sale, purchase, exchange, renting, lease, or option for any real estate or of the improvements thereon, including persons holding themselves out as referral agents for the purpose of securing prospects for the listing, sale, purchase, exchange, renting, lease, or option for any real estate, or collects rents or attempts to collect rents, or who advertises or holds himself out as engaged in any of the foregoing. Broker also includes:

“(A) Any person employed by or on behalf of the owner or owners of lots or other parcels of real estate at a salary, fee, commission, or any other valuable consideration to sell such real estate or any part thereof in lots or parcels or other disposition thereof;
“(B) Any person who engages in the business of charging an advance fee or contracting for collecting of a fee, other than an advertising fee, in connection with any contract whereby he undertakes primarily to promote the sale of real estate either through its listing in a publication issued primarily for such purpose, or for referral of information concerning such real estate to brokers, or both;
“(C) Any person who, for another, auctions or offers or attempts or agrees to auction real estate; or
“(D) Any person who, for another, buys or offers to buy, sells or offers to sell, or otherwise deals in options to buy real estate.”

“Person” as used in Chapter 40 means individuals, corporations, and partnerships. OCGA § 43-40-1 (6).

The undisputed evidence shows that Balcor Partners did not function as a broker in the Colony transaction.

There was no factual showing that the $962,260 was a brokerage commission. The parties’ contract termed the sum an “acquisition fee,” differentiating it from a brokerage commission. Although Piedmont’s president and director, Bregman, made the conclusory statement in affidavit that the $962,260 payment was made in the belief that it constituted brokerage commissions, there was absolutely no factual showing that this was the true nature of the payment.

In contrast, Balcor Partners submitted the affidavit of Balcor’s former first vice-president/acquisitions, Kalb. It detailed the following circumstances of the subject payment. Balcor Partners performed no activities in connection with Colony which could be called brokerage activities. In Balcor terminology and business practices, an acquisition fee was not a real estate brokerage commission but was considered to be the investment fee paid by the limited partnership to its general partner for services relating to the management of the investment fund. During negotiations with Piedmont, it was made clear that the inclusion of the obligation to pay the acquisition fee to the general partner would not affect the net compensation received by Piedmont in consideration for the sale of the Colony project. Piedmont did not even learn of the exact amount of the proposed acquisition fee until shortly before the date of closing. The basic terms of the purchase and sale were negotiated prior to closing and were reflected in a November 1982 commitment letter. Pursuant to the letter, the project would be purchased subject to certain existing loans on which seller would remain liable to a limited period. Under the purchase agreement, seller would be paid $5,145,000 in cash over a period of years. The final purchase agreement also reflected the payment of an acquisition fee of $962,260 by seller to Balcor Partners on April 1, 1985, but the net cash amount of $5,145,000 paid to seller did not change. The cash payment due to seller on April 1, 1985, was increased by the same amount as the acquisition fee, $962,260, so that the net result to seller was a wash. Seller still received the same amount of cash $5,145,000, that had been negotiated and agreed on months before notwithstanding its subsequent agreement to pay the acquisition fee. It was made clear to Bregman and disclosed in the prospectus to the limited partners that the acquisition fee obligation would be discharged by the limited partnership by direct payment to the general partner. It was also made clear that the inclusion of the acquisition fee provision in the purchase agreement would have absolutely no effect upon the net compensation realized by Piedmont in consideration of the Colony Apartments sale.

Piedmont’s bare statement that it believed the subject fee to be a brokerage commission does not stand to create a question of fact in the face of Balcor Partners’ factual showing to the contrary. Kalb’s affidavit established without dispute that during negotiations with Piedmont on the Colony Apartments, Kalb was the representative of any Balcor entity with whom Piedmont and its representatives dealt and that Kalb had held a Georgia real estate brokerage license since approximately 1970 and such license was in full force and effect during 1982 and 1983.

The factual showing conclusively undermines Piedmont’s contention that Balcor Partners acted as a “broker” as contemplated by the statute and that the “acquisition fee” was a brokerage commission. The undisputed material fact is that the sum as characterized in the documents was for the purpose of a pass-through on the balance sheet of the transaction and did not accurately reflect the true nature of the payment.

3. Likewise, an examination of the evidence which establishes undisputed facts regarding defendant Balcor Management’s fees vis-avis the licensing statutes required judgment for Balcor Management on Piedmont’s remaining claims.

OCGA § 43-40-29 provides exceptions to operation of the requirements of Chapter 40. The chapter does not apply to “[a]ny person employed on a full-time basis by the owner of property for the purpose of selling, buying, leasing, managing, auctioning, or otherwise dealing with such property.”

Colony Investors, the Balcor limited partnership which owned Colony, engaged Piedmont’s wholly-owned subsidiary and limited partnership Colony Apartments to manage the property under the executed management and cash flow guaranty agreement. In turn, Colony Apartments, owner Colony Investors, and Piedmont as guarantor executed the sub-management agreement with Balcor Management making Balcor Management “the sole and exclusive agent” of Colony Apartments “to maintain, operate, management, supervise, rent and lease the Property.” Balcor Management was actually responsible for the day-to-day management of Colony.

The fund manager responsible for Colony Investors’ investment in Colony swore in affidavit that Colony Apartments was paid a 5% monthly management fee which was passed on to Balcor Management because of the delegation of management duties. The affidavit of the first vice-president of Balcor Management added the following. Balcor Management was engaged in the apartment management business. To the best of his knowledge, prior to 1987 the only apartment projects which Balcor Management managed were owned by limited partnerships, the general partners of which were The Balcor Company or one of its affiliates. Balcor Management managed such complexes as the management arm of The Balcor Company. On or about October 14, 1987, Balcor Management obtained a Georgia real estate license because it wanted to expand its management services to apartment complexes owned by non-Balcor entities. Prior to that time, Balcor Management did not have a license because it only managed apartment complexes owned by Balcor entities.

The uncontroverted evidence was that Balcor Management was employed directly or indirectly by the Balcor-owner of the property to perform the daily management duties at Colony. As such it was excepted from the licensing requirement. OCGA § 43-40-29 (a) (8).

Thus the Balcor defendants were entitled to judgment in their favor as a matter of law and plaintiff Piedmont was not. Inasmuch as we will affirm the judgment of the court below if it is right for any reason, see Health Help Svcs, of Gainesville v. State Health Planning Agency, 174 Ga. App. 640, 641 (1) (329 SE2d 628) (1985), the trial court’s judgment stands.

Decided July 6, 1990

Rehearing denied July 23, 1990 — Cert, applied for.

Glass, McCullough, Sherrill & Harrold, L. James Weil, Jr., Robert S. Jones, Euert & Weathersby, Michael N. Weathersby, for appellant.

Sutherland, Asbill & Brennan, William D. Barwick, Alfred A. Lindseth, for appellees.

Edward C. Stone, Quinton S. King, Trotter, Smith & Jacobs, Gerald L. Baxter, amici curiae.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Sognier, Judge.

text:
    A90A0262.
    FREGEAU v. HALL.
    (396 SE2d 241)
   Sognier, Judge.

Jimmy Hall brought suit against Betty Fregeau d/b/a Betty’s Metropolitan Insurance Services, alleging negligent or fraudulent failure to procure “full coverage” insurance for a building he owned. We authorized Fregeau’s interlocutory appeal from the denial of her motion for summary judgment.

The depositions and affidavits in the record disclose that appellee owned two buildings for which his wife, Lynn Hall, acting as his agent, had purchased a fire, vandalism, and extended coverage insurance policy issued by Holyoke Mutual Insurance Company and written by an agent other than appellant. When that carrier ceased issuing policies in Georgia, Lynn Hall contacted appellant and asked for quotes for insurance on those two buildings plus a metal building appellee had just constructed. After reviewing appellee’s existing policy, appellant obtained quotes for the same coverage from several carriers. Ms. Hall selected a Stone Mountain Insurance Company policy, the least expensive option offered, and signed the application under power of attorney from appellee. The parties agree that Ms. Hall specified that she wanted $75,000 of coverage for the metal building, but disagree as to the type of coverage requested. Appellant testified that Ms. Hall requested only fire insurance, but appellant recommended she purchase a fire, vandalism, and extended coverage policy. Ms. Hall testified that she assumed she had asked appellant to obtain the same type of coverage they had with Holyoke, that she had asked for “full coverage,” and that although she had not read the Holyoke policy she had thought it provided full coverage. The application Ms. Hall signed has a check mark in the box beside “property” coverage and includes in the same section the handwritten notations “[f] ire,” “EC,” and “vandalism.” After the binder was issued but before the policy itself had been sent to appellee, the metal building collapsed during a heavy snow. It is undisputed that the Stone Mountain policy did not provide collapse coverage, and that the carrier informed appellee that the loss was not covered under the policy.

In Wright Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268 (210 SE2d 801) (1974), the Supreme Court recognized that an insurance agent or broker who holds himself out as an expert in the field of insurance and who undertakes to provide such expert services to an insured in addition to issuing a policy may be liable for the negligent failure to procure the required coverage. When an agent has undertaken to perform an additional service, such as determining the amount of insurance required, and the insured relies upon the agent to perform that service, the agent may be held liable for negligence in the selection of coverage even if the insured fails to examine the policy. Id. at 271; see Ethridge v. Assoc. Mutuals, 160 Ga. App. 687, 688-689 (288 SE2d 58) (1981), However, as we held in Ethridge, when the insured specifies the exact amount of insurance requested and otherwise informs the agent of the details of the coverage sought, the insured’s failure to read the policy precludes recovery for negligent performance of a fiduciary duty, and the insured cannot use a contention that he sought “full coverage” “to convert what is actually a request to obtain specific insurance into an indefinite amount to be determined out of the expertise of the broker.” Id. at 689.

We agree with appellant that the analysis in Ethridge is applicable in the case at bar. Here, appellee, through his agent, informed appellant of the exact amount of coverage sought for each of the three buildings and indicated he wanted replacement coverage for the previous policy. There is no evidence Ms. Hall, who admittedly had on several occasions procured insurance for these and other holdings, relied on appellant’s expertise to appraise the properties and ascertain the proper amount of coverage or otherwise to exercise her discretion so as to relieve appellee of the duty to examine the coverage obtained for him. See id. at 689. Thus, regardless of what coverage appellee requested from appellant, he nonetheless was obligated to make an independent examination of the coverage provided.

Appellee argues that he, unlike the insured in Ethridge, did not receive his copy of the policy before the loss and thus had no opportunity to examine its contents; however, the application signed by'his agent clearly indicates the type of coverage to be provided. Although Ms. Hall testified by affidavit that she “understood the application to be for full coverage,” no ambiguity exists in the language of the application, no evidence exists that either she or appellee was prevented from reading the application, and the record does not reveal anything other than an arms-length business relationship between the parties. See Credithrift of America v. Whitley, 190 Ga. App. 833, 834 (1) (a) (380 SE2d 489) (1989). “In the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations.” (Citations and punctuation omitted.) Id. Since we find no evidence of a fiduciary relationship or other special, circumstances, we hold that appellee’s failure to exercise ordinary diligence in examining the application and independently verifying that he had received the coverage sought also bars his claim for fraud, see id. at 837 (1), and thus hold appellant was entitled to summary judgment. See Ethridge, supra at 690.

Decided May 29, 1990

Rehearing denied July 23, 1990.

Lokey & Bowden, Charles M. Lokey, K. Scott Graham, for appellant.

Bailey & Bearden, J. Lane Bearden, for appellee.

Judgment reversed.

Car ley, C. J., and McMurray, P. J., concur.


text:
    A90A0645.
    CANN et al. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (396 SE2d 515)
   Carley, Chief Judge.

In 1981, appellee-Condemnor initiated condemnation proceedings pursuant to OCGA § 22-2-100 et seq. against property that was leased by appellant-Condemnees. An appeal was filed and, after discovery, Condemnor made a motion in limine to exclude certain evidence during the jury trial. The trial court granted Condemnor’s motion, but certified its order for immediate review and Condemnees’ application for an interlocutory appeal to this court was granted.

1. Under the terms of Condemnees’ lease, their original tenancy was to have terminated in 1982, some nine months after the date of the taking. However, the lease also provided that, for four additional five-year terms, Condemnees “shall have the option of extending this lease . . . upon the same terms and conditions which were in effect during the original term, EXCEPT that . . . the annual rent for the renewed term, ... if renewed, shall be as may be agreed upon by the parties hereto, but in no event less than the annual rent during the last year of the preceding term.” (Emphasis supplied.) In its motion in limine, Condemnor urged that Condemnees had only a nine month’s tenancy remaining on the date of taking and sought limitation on the introduction of evidence as to the value of Condemnees’ leasehold for any longer period. On appeal, Condemnees urge that it was error to grant the motion in limine because more than twenty years of their tenancy remained as of the date of taking and they are entitled to introduce evidence as to the value of that longer leasehold.

The construction of the lease was for the trial court. See Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358, 364 (227 SE2d 362) (1976). The trial court correctly held that Condemnees had only a nine month’s tenancy remaining on the date of taking because the twenty-year renewal provision was unenforceable for a lack of certainty as to the amount of rent for that renewal period. “A provision for the renewal of a lease ‘must specify the terms and conditions of the renewal. . . with such definite terms and certainty that the court may determine what has been agreed upon, and if it falls short of this requirement it is not enforceable. It must be certain and definite both as to the time the lease is to extend and the rent to be paid.’ [Cit.] . . . ‘[I]f terms, such as duration and rent, are left for future ascertainment, and no method is provided by which they are to be determined, the contract is unenforceable for uncertainty. . . .’ [Cit.]” (Emphasis supplied.) McCormick v. Brockett, 167 Ga. App. 325-326 (306 SE2d 344) (1983). Condemnees’ lease provided no method by which the specific amount of future rents was to be determined, but provided only that future rent would be in some unspecified amount at least as great as that which had previously been paid. Accordingly, insofar as the twenty-year extension of the lease is concerned, Condemnees “had no legally compensable interest in the property upon its . . . condemnation. [Cit.] Since [Condemnor] was not obliged to compensate [Condemnees] for property in which [they] had no interest, the trial court [correctly] granted [the motion in limine].” Norris v. Downtown LaGrange Dev. Auth., 151 Ga. App. 343, 344-345 (2) (259 SE2d 729) (1979).

2. On the ground that the construction of a highrise commercial building would constitute a speculative alternative use of the property by Condemnees, the trial court granted the motion in limine precluding the introduction of evidence of any such use. Appellants urge that this evidentiary ruling is erroneous.

“ ‘The correct measure of damages for the loss of use of leased property is the diminution in the market value of the leasehold during the remainder of the unexpired term of the lease, less any rents to be paid by the lessee. [Cits.]’ [Cit.]” Peek v. DOT, 139 Ga. App. 780, 781 (1) (229 SE2d 554) (1976). “In this regard, ‘(t)he jury (should be) allowed to inquire as to all legitimate purposes, capabilities and uses to which the property might be adapted, provided that such use (is) reasonable and probable and not remote or speculative.’ [Cit;]” Department of Transp. v. Kanavage, 183 Ga. App. 143 (358 SE2d 464) (1987). Since Condemnees had only a nine-month tenancy remaining on the date of taking and had made no efforts whatsoever to determine the feasibility of erecting a highrise commercial building on the property, such a proposed use was so remote and speculative that evidence thereof would have “no probative value in the showing of suitability for [other] uses of the property. . . .” State Hwy. Dept. v. Howard, 119 Ga. App. 298, 303 (5) (167 SE2d 177) (1969). Accordingly, the trial court did not err in granting the motion in limine to exclude this evidence.

Decided July 3, 1990

Rehearing denied July 23, 1990 — Cert, applied for.

Wildman, Harrold, Allen, Dixon & Branch, Thomas B. Branch III, George G. Holden, for appellants.

Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., for appellee.

3. The trial court did not err in granting Condemnor’s motion in limine to exclude evidence as to nonvalue issues. Condemnees had no right to raise nonvalue issues because they filed only a notice of appeal seeking a jury trial, and did not file any exceptions to the special master’s award. “[T]he failure of a party to file exceptions to the master’s award for determination by the superior court results in a waiver of the party’s right to further litigate any nonvalue issues.” Beck v. Cobb County, 180 Ga. App. 808, 811 (350 SE2d 818) (1986).

4. The trial court did not err in granting the motion in limine to exclude evidence of rentals allegedly lost as the result of the threat of condemnation. Housing Auth. of Decatur v. Schroeder, 222 Ga. 417 (151 SE2d 226) (1966); Collins v. MARTA, 163 Ga. App. 168, 170 (6) (291 SE2d 742) (1982).

5. Contrary to Condemnees’ assertions on appeal, their expert witness has not been precluded from testifying at trial. The effect of the trial court’s grant of the motion in limine was merely to preclude Condemnees’ expert witness from giving such irrelevant and inadmissible testimony at trial as he had given during his pre-trial deposition. Condemnees remain free to call their expert witness and elicit relevant testimony for the jury’s consideration. By granting the motion in limine, the trial court properly defined the relevant issues to be tried and, if Condemnees’ expert is thereby precluded from testifying, it will only be because he has no admissible testimony to give.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.