text:
    A90A2104, A90A2114.
    STONE v. PALM POOL PRODUCTS, LTD. (two cases).
    (403 SE2d 69)
   Cooper, Judge.

These two cases originate from the same set of facts. In March 1984, the appellants, James Stone and his son Steven Stone, were the sole partners of a partnership designated “Pools By Stone” which was engaged in the swimming pool installation business. Also, the appellants were engaged in a plumbing business under the name of Stone Plumbing Company. On March 2, 1984, “Pools By Stone” applied for credit with appellee via a written credit application. The credit application listed the “Firm Name” of the entity applying for credit as “Pools By Stone” and indicated that the type of ownership of such entity was a partnership. The two appellants herein were listed as the “Principals” of the firm. Attached to the credit application was a Personal Guaranty Agreement which was signed by each of the appellants. The Guaranty stated in pertinent part as follows: “In order to induce PALM POOL PRODUCTS to extend credit to the Dealer named in the foregoing application, the undersigned (jointly and severally, if more than one) hereby unconditionally guarantees to Palm Pool Products, its successors and assigns, the prompt and full payment when due or declared due of all amounts payable by the Dealer which may now or at any time hereafter be or become owing or due, by the Dealer, hereby assuming primary liability therefor, jointly and severally with said Dealer, and or obligations of the Dealer. This guaranty and the obligations of the undersigned hereunder shall be absolute, unconditionally and continuing as to each guarantor and his estate and shall be binding on the heirs, executors, administrators and assigns of each guarantor, respectively.” The credit application was approved on June 7,1984 for a credit limit of $10,000. Around July 1, 1984, a corporation, Poolco, Inc., was formed with the appellants as the sole shareholders and holding the offices of President and Vice-President. The assets of the partnership, Pools By Stone, and the assets of Stone Plumbing Company were purchased by the corporation, and the swimming pool company continued doing business under the name Poolco, Inc. d/b/a Pools By Stone. A letter appearing in the record dated June 26, 1984, was addressed to the vendors or suppliers of Pools By Stone and Stone Plumbing Company informing them of the change in the ownership of the company. James Stone testified in his deposition that this letter was sent to the vendors or creditors, however appellee denies ever receiving the letter. On August 13, 1984, appellee received a check on the account of Stone Plumbing Company to pay the account in full through July 1, 1984. One of the appellants testified that this check represented all of the indebtedness to appellee that Stone Plumbing Company or Pools By Stone had incurred. Thereafter, appellee and Poolco, Inc. d/b/a Pools By Stone continued doing business based upon the credit agreement and payment checks were accepted by appellee drawn on the account of “Poolco, Inc., D/ B/A Pools By Stone.” In July 1987, Steven Stone was no longer affiliated with Poolco, Inc., Stone Plumbing Company or Pools By Stone and a letter to this effect was sent to Poolco’s suppliers. Orders made on credit by appellee to Poolco, Inc. d/b/a Pools By Stone for the period of July 1988 through August 1988 were not paid and appellee filed suit against appellants to recover under their personal guaranties. The trial court granted appellee’s motion for summary judgment against both appellants and denied appellant James Stone’s motion for summary judgment; appellant Steven Stone did not file a motion for summary judgment.

In Case No. A90A2104, appellant James Stone appeals the trial court’s grant of summary judgment to appellee and the denial of his own motion for summary judgment. In Case No. A90A2114, appellant Steven Stone appeals the trial court’s grant of summary judgment to appellee. Since the grounds on which we base our decision were advanced by both appellants, we will address both appeals in our discussion below.

The thrust of appellants’ arguments is that the trial court erred as a matter of law in granting appellee’s motion for summary judgment because the guaranty signed by appellants guaranties only the debts of the partnership, Pools By Stone, as appears on the face of the credit application, and does not extend to the debts of the corporation, Poolco, Inc. d/b/a Pools By Stone. After reviewing the record and the arguments of the parties in light of the controlling case law, we agree with appellants’ contention and reverse the trial court.

OCGA § 10-7-3 states “[t]he contract of suretyship is one of strict law; and the surety’s liability will not be extended by implication or interpretation.” OCGA § 10-7-1 provides that there shall be no distinction between contracts of suretyship and guaranty. OCGA § 10-7-3 was interpreted in Johns v. Leaseway of Ga., 166 Ga. App. 472 (304 SE2d 555) (1983) in which this court held “ ‘ “A contract of surety-ship must be strictly construed in the interest of the surety.” (Cit.) A surety’s liability will not be extended by implication or interpretation. (Cits.) “The undertaking of a surety being stricti-juris, he cannot, in law or equity, be bound further than the very terms of his contract.” (Cits.)’ [Cit.]” “ ‘There is no construction required or even permissible when the language employed by the parties in the contract is plain, unambiguous and capable of only one reasonable interpretation. (Cit.)’ [Cit.]” (Indention omitted.) Id. at 472-473. In Johns, the court limited a surety’s contractual obligation to the one specific weekly lease agreement listed in the contract even though the principal parties had done business under a series of similar weekly lease agreements for a number of months and despite the lessor’s contention that it would not have leased its trucks without a guaranty or surety agreement. In Sitzer v. Lang, 145 Ga. App. 159 (243 SE2d 95) (1978), a corporation, F. J. Lang, Inc., was doing business as Atlanta Tyre Co. and Eldorado Tire Company, Inc. F. J. Lang had personally guaranteed the debts of Eldorado Tire Company, Inc. Stating that the rights of a guarantor are stricti juris, the court refused to hold the guarantor liable for the debts of F. J. Lang, Inc. or of Atlanta Tyre Company. The liability of the surety on a voluntary bond was defeated in Barge & Co. v. Oakwood Steel Co., 128 Ga. App. 597 (197 SE2d 405) (1973) wherein the court determined that the language in the bond “pay all lawful claims of . . . materialmen . . . for . . . materials furnished directly to the Principal” did not include materials sold to a materialman by a third person and delivered to the materialman or to the contractor-principal at the direction of the materialman. In Peara v. Atlanta Newspapers, 120 Ga. App. 163 (169 SE2d 670) (1969), the court strictly construed a suretyship contract which guaranteed the debt of World Wide Computer Training. The credit was in fact extended to Computer Services Corp., of which World Wide Computer was a division. The credit was used for advertising costs of “World Wide Computer, a division of Computer Services Corp.” Since the surety did not specifically agree to guaranty the debt of Computer Services Corp., no liability existed under the suretyship agreement. Finally, in Mayor &c. of Savannah v. Glens Falls Ins. Co., 104 Ga. App. 879 (123 SE2d 293) (1961), the court found no liability of the surety when the contract to be guaranteed was referenced in the surety agreement as being of a different date than the contract allegedly breached.

In the instant case, although “Dealer” was not specifically defined in the guaranty we find no ambiguity in that it referred to the “Firm” listed on the attached credit application, being the partnership, Pools By Stone. The evidence in the record shows that the debts incurred by the partnership were in fact paid in full by the check dated August 13, 1984. Thereafter, the corporation incurred debt and paid for that debt with checks from its own account. There is no allegation made by appellee that the formation of the corporation was intended as a fraud on appellee with the intent of defeating the personal guaranty. Admittedly, business did continue as usual after the formation of the corporation and appellee contends that they would not have continued to extend credit to the corporation unless they had a viable personal guaranty. Nevertheless, in the absence of allegations of fraud, appellants’ obligations are limited by the terms of the contract which cannot be extended to include the debts of a corporation not named therein. The trial court erred in granting summary judgment for appellee against both appellants and in denying appellant James Stone’s motion for summary judgment.

Decided February 27, 1991.

Adams & Hemingway, Ward Stone, Jr., Jones, Cork & Miller, David A. Garland, for appellant (case no. A90A2104).

L. Wayne Gilleland, for appellant (case no. A90A2114).

Boyce, Thompson & O’Brien, Albert F. Nasuti, Thomas E. Austin, David E. Clark, for appellee.

Judgments reversed.

Banke, P. J., and Birdsong, P. J., concur.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A2130, A90A2131.
    TRAMMELL CROWE CONSTRUCTION COMPANY, INC. et al. v. RUMPH et al. (two cases).
    (403 SE2d 72)
   Cooper, Judge.

Appellee Selective Insurance Company of the Southeast (“Selective”), the workers’ compensation insurer of appellant Pyramid Construction Company, Inc. (“Pyramid”), issued a policy covering the period November 17, 1987, to November 17, 1988, which it elected to cancel in June 1988 due to Pyramid’s failure to cooperate with an audit. The effective date of the cancellation was to be August 15, 1988, and on June 30, an underwriter employed by Selective directed a clerk to prepare a notice of cancellation to be sent to Pyramid, the agent who procured the policy and to the National Council on Compensation Insurance (“NCCI”). Pyramid’s president did not receive notice until July 23 or 24, and NCCI never received the notice of cancellation but did receive an endorsement from Selective on August 12 which indicated that on August 15 the policy would be cancelled. The agent received the notice on July 7. On August 17, appellee Mark Rumph, a Pyramid employee, was injured, and Selective denied coverage.

In the hearing before the ALJ, Selective produced a post office certificate of bulk mailing, which indicated that on July 1, 1988, six unidentified items were mailed, and a separate sheet containing the names of six policyholders, including Pyramid, and a statement indicating that cancellation notices issued on July 1, 1988, were mailed to each of the entities. The list was not stamped by the post office. The underwriter testified and described office procedure, however, admitted that she did not prepare the list nor did she mail the letters. There was no testimony from anyone who actually mailed the notices. The ALJ found that Rumph’s injury was covered by Selective because the insurer failed to comply with the notice of cancellation requirements of OCGA § 33-24-44 (b) and Board Rule 126 (a) (2) with respect to notifying NCCI. The full board entered an award against Selective, and on appeal in superior court, the award was reversed. The trial court held that the board erroneously determined that OCGA § 33-24-44 (b) required that the insured receive notice of cancellation whereas the statute recites that only mailing is required of the insurer. Due to Selective’s failure to produce a post office receipt proving that notice was actually sent, the court determined that under a strict reading of the statute, Selective was not in compliance; however, relying on Travelers Indem. Co. v. Guess, 243 Ga. 559 (255 SE2d 55) (1979), found that because Pyramid received actual notice, Selective did not have to demonstrate that notice was mailed and further that Selective satisfied the statute. The court also held that compliance with Board Rule 126 (a) (2) was not mandatory; that such notice is only evidence of cancellation; and that Selective’s failure to show compliance with the rule “d[id] not preclude a finding of effective and timely notice of cancellation to its insured.” We granted applications for discretionary appeal to this court by Pyramid (Case No. A90A2131) and by appellant Trammell Crowe, the general contractor, and its workers’ compensation insurer (Case No. A90A2130) to determine whether Selective’s notice complied with OCGA § 33-24-44 (b) and whether Board Rule 126 (b) is mandatory for effective cancellation.

1. Appellants contend the trial court erred in finding that Selective satisfied OCGA § 33-24-44 (b) inasmuch as the insurer failed to show it provided written notice of cancellation. OCGA § 33-24-44 provides that “[w]ritten notice stating the time when the cancellation will be effective, which shall not be less than 30 days from the date of mailing or delivery in person of such notice of cancellation . . ., shall be delivered in person or by depositing the notice in the United States mails to be dispatched by at least first-class mail to the last address of record of. the insured . . . and receiving the receipt provided by the United States Postal Service or such other evidence of mailing as prescribed or accepted by the United States Postal Service.” In Travelers, the court stated that the methods set forth in the statute to accomplish cancellation were mandatory; however, “where it is admitted such notice was received, the purpose of the statute [to assure actual notice of cancellation] has been accomplished. [Cits.]” Id. at 560-561. In our view, the court’s holding in Travelers is premised on facts which are distinguishable from the case sub judice. In Travelers, the insurer attempted to cancel a new policy within ten days of notice, as provided by OCGA § 33-24-44 (d), because of alleged misrepresentations regarding the insured’s driving record. The insured admitted receiving notice on October 4, and the effective date of the cancellation was October 16. The insured vehicle was involved in a collision on October 25, and the insurer admitted there was no personal service nor did the insurer produce a post office receipt. It is clear, however, that the insured received notice within the time prescribed by the legislature. While the trial court was correct in stating that OCGA § 33-24-44 (b) requires the sending of notice and in cases where there has been compliance with the statute, the issue of receipt of notice is legally irrelevant, Hill v. Allstate Ins. Co., 151 Ga. App. 542 (1) (260 SE2d 370) (1979), in Travelers, the court commented in a footnote that its holding “would not be applicable where receipt of notice of cancellation is denied by the insured. Failure to follow the strict mandate of the statute would authorize summary judgment, upon proper motion, for the insured. [Cit.]” Travelers, supra at 561, n. 2. The trial court agreed with the ALJ and the board that Selective did not strictly comply with the statute, and with this finding, we concur. Compare Maddox v. Allstate Ins. Co., 164 Ga. App. 21 (296 SE2d 84) (1982). However, it is also undisputed that Pyramid did not receive notice until approximately three weeks prior to the effective date of cancellation, which is short of the 30 days provided by the General Assembly. We find, therefore, that the trial court erred in determining that Selective complied with OCGA § 33-24-44 (b) and that Pyramid’s actual knowledge and the notice of cancellation did not preclude Selective’s coverage of the injury sustained by Rumph on August 17, 1988.

2. Appellants also enumerate as error the trial court’s finding that compliance with Board Rule 126 (b) was not mandatory upon Selective to provide effective cancellation. “The filing requirements of the board’s rules are determined by the provisions of the rules in effect at the time of the filing of the report of coverage with the board. [Cit.]” American Centennial Ins. Co. v. Flowery Branch &c. Center, 258 Ga. 222 (367 SE2d 788) (1988). Board Rule 126 (OCGA Title 34, Appendix, p. 755) provides in pertinent part:

(a) Every employer insured by a licensed insurer shall have proof of coverage documented by its insurer directly with the National Council on Compensation Insurance (NCCI) through the NCCI policy information system. Reports will be made to the NCCI pursuant to procedures outlined by the NCCI and approved by the Georgia State Board of Workers’ Compensation.

(1) The proof of coverage documented with the NCCI is evidence that coverage is in effect until superseded or terminated.

(2) Cancellation or non-renewal documented with the NCCI is evidence that coverage is terminated, effective not less than 15 days after filing, . . . (Emphasis supplied).

The Supreme Court in American Centennial, supra, considered a predecessor of Rule 126 which was substantively the same as the current rule. The court determined that despite the mandatory language emphasized above, the rule “contains no express requirement for notice, but rather provides that the filing of the forms simply constitutes ‘evidence of coverage or lack of coverage. The rule does not expressly create any presumption, and we are unauthorized to attach a provision for conclusiveness which the board has not seen fit to articulate.” Id. at 223.

Decided February 27, 1991.

Cone & Shivers, Judith A. Hodges, for appellants.

Chambers, Mabry, McClelland & Brooks, Lawrence J. Hogan, Eugene C. Bessent, Goodman, McGuffey, Aust & Lindsey, Wade McGuffey, Edward H. Lindsey, Jr., Richard Thane, for appellees.

Based on the foregoing, Selective contends that all of the evidence should be considered, and compliance with the Board Rule is not conclusive. Viewing the evidence as a whole, it is inescapable that the only document filed with NCCI during the relevant period was the endorsement filed on August 12, and if that document is construed liberally, it would constitute evidence that coverage was terminated not sooner than August 27, 1988 under Rule 126. Thus, in view of the Supreme Court’s holding, the filing outlined in Rule 126 is not mandatory; however, following the direction provided by the Court in American Centennial, supra, we find that Selective’s notice to NCCI was not sufficient to bar its coverage of Rumph’s injury.

Judgments reversed.

Banke, P. J., and Birdsong, P. J., concur.


author: Banke, Presiding Judge.

text:
    A90A2209.
    COFFEE CHRYSLER-PLYMOUTH-DODGE, INC. v. NASWORTHY.
    (403 SE2d 453)
   Banke, Presiding Judge.

The appellee sued the appellant automobile dealership seeking to recover for injuries allegedly caused by the negligence of one of its employees in operating one of its vehicles. The appellant moved for summary judgment on the ground that the employee had not been acting within the scope of his employment when the accident occurred, and the case is before us on interlocutory appeal from the denial of that motion.

The employee, Michael Mitchel, worked in the appellant’s service department, which was managed by his brother, Max. The vehicle involved in the accident, a pickup truck, was primarily used by Max for business purposes and to drive to and from work. According to affidavits submitted by Max and by the dealership’s manager, Michael had been expressly instructed never to drive any of the dealership’s vehicles, and, to their knowledge, he had never violated those instructions prior to the accident which gave rise to this suit.

The accident occurred about midnight on a Saturday. That afternoon, Max had driven himself and Michael to the dealership in the truck to attend a company fish fry, but Max had later left with a girl friend in her vehicle. Max averred in his affidavit that Michael was not at the dealership when he left and that it was his understanding that he had left with one of the other employees. In fact, Michael had driven the truck home, using a spare set of keys which he had removed from Max’s pants pocket approximately a week earlier. Michael had taken the keys pursuant to Max’s instructions but was to have placed them in the ashtray of the truck preparatory to their leaving on a personal trip to Tennessee, so that other dealership employees would be able to use the vehicle while they were gone. Instead, he had secretly kept the keys.

After arriving home from the fish fry, Michael watched television for a while and then left in the truck with the intention of driving to a convenience store about five miles away to get something to eat and drink. The accident occurred while he was en route to the store. Michael admits that he did not have permission to drive the truck and that he was not using it for any purpose connected with the appellant’s business at the time of the accident. Held:

“ ‘To hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own; that is, the injury must have been inflicted in the course of the servant’s employment.’ [Cit.] ‘The test is not that the act of the servant was done during the existence of the employment, but whether the servant was at that time serving the master. [Cit.]’ [Cit.]” Corum v. Edwards-Warren Tire Co., 110 Ga. App. 33, 34 (1) (137 SE2d 738) (1964).

Where an employee is involved in a collision while driving his employer’s vehicle, a presumption arises that the employee was in the service of the employer; however, this presumption may be rebutted by “clear, positive and uncontradicted evidence.” Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 777 (257 SE2d 186) (1979). We hold that this was done in the present case. Based on the uncontradicted testimony of record, it is apparent as a matter of law that Michael, though operating a company vehicle, was not in the service of his employer at the time the collision occurred but was on a purely personal mission. Accord Curtis, Inc. v. Kelley, 167 Ga. App. 118 (305 SE2d 828) (1983); Aubrey Silvey Enterprises v. Bohannon, 182 Ga. App. 738 (356 SE2d 693) (1987); Whelchel v. Laing Properties, 190 Ga. App. 182 (4) (378 SE2d 478) (1989). Consequently, we hold that the trial court erred in denying the appellant’s motion for summary judgment.

Decided February 27, 1991.

Simpson & Gray, Joseph B. Gray, Jr., for appellant.

Donald A. Starling, for appellee.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A90A2360.
    MERGEL v. THE STATE.
    (402 SE2d 800)
   Cooper, Judge.

This appeal is from the denial of appellant’s motion to withdraw his guilty plea.

Appellant, indicted for murder, was convicted by a jury of voluntary manslaughter and received a sentence of 15 years to serve ten years. Appellant, through an attorney who was not his trial attorney, filed a motion for new trial which was heard by the trial court and taken under advisement. Before the court ruled on the motion for new trial, a negotiated plea agreement was reached whereby the State would consent to the granting of the new trial and appellant would then plead guilty to voluntary manslaughter and receive a sentence of ten years to serve three-and-a-half years. At the commencement of the plea proceedings, the prosecutor informed the court of the negotiated plea agreement and appellant’s attorney confirmed that the agreement was as stated by the prosecutor. The judge then orally granted appellant’s motion for new trial and proceeded with the entry of the guilty plea. After the judge read appellant his rights pursuant to Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969), appellant asked the judge if he could have a jury trial. The judge told appellant that he could not have a jury trial but that he could withdraw his guilty plea in which case the judge would not enter the order granting appellant’s motion for new trial. The judge also informed appellant that he was in essence waiving his right to appeal, and appellant responded that he understood what the judge was saying and still wanted to enter the plea. The judge then accepted the plea of guilty and sentenced appellant in accordance with the agreement. Subsequently, appellant filed a pro se motion to withdraw his guilty plea. The State moved to vacate and set aside the order granting appellant’s motion for new trial. At the hearing on the motions, appellant was represented by the same attorney who represented him at the hearing on his motion for new trial and the plea proceedings. The trial court, after hearing argument, denied both motions.

In three enumerations of error, appellant contends that his guilty plea was not made freely and voluntarily. The burden is on the State to establish that appellant’s plea of guilty was entered into intelligently and voluntarily. Scurry v. State, 194 Ga. App. 165, 166 (390 SE2d 255) (1990). The transcript from the plea proceeding reflects that after the judge informed appellant that if appellant withdrew his guilty plea the judge would not grant the motion for new trial, the following colloquy took place between the judge and appellant:

“[THE COURT]: So it pretty much boils down to a question of whether or not you want to go through to get less of a sentence and give up your appeal rights. That’s what it boils down to? Do you understand that?

[APPELLANT]: Yes.

[THE COURT]: Do you understand if you do enter this plea and if I do sentence you, your right to appeal is gone?

[APPELLANT]: Yes.

[THE COURT]: Is that what you want to do?

[APPELLANT]: Yes.

[THE COURT]: Are you sure about that?

[APPELLANT]: Yes.”

We are satisfied that appellant understood the consequences of the agreement he was entering into and that he intelligently and voluntarily waived any rights which may have resulted from the grant of his motion for new trial in order to receive a lesser sentence. The trial court explained that the grant of appellant’s motion for new trial was conditioned upon his entry of a plea of guilty to the charge of voluntary manslaughter and the record reveals that appellant understood that condition. A defendant has no right to plea bargain; therefore, the State could place any conditions that it desired in an offer to negotiate the plea of appellant. Bostic v. State, 184 Ga. App. 509 (4) (361 SE2d 872) (1987).

Appellant’s argument that the court failed to inform him of the elements of voluntary manslaughter is without merit. “It is not necessary for the trial court to inform the accused personally of the elements of the crime to which he is pleading[.]” Craig v. State, 192 Ga. App. 148, 149 (384 SE2d 240) (1989). In addition, the record reveals that appellant did in fact understand the nature of the offense to which he was pleading guilty.

Appellant also argues that his attorney was ineffective because he did not explain to appellant that he could withdraw his motion for new trial and allow the judge to enter a reduced sentence. While we agree that the alternative method may have been the better way to achieve the desired result, the net result being the same, we find no harm to appellant.

Decided February 27, 1991.

Marc D. Celia, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


author: Beasley, Judge.

text:
    A90A1796.
    RIVERGATE CORPORATION v. BCCP ENTERPRISES, INC.
    (403 SE2d 65)
   Beasley, Judge.

Defendant lessor Rivergate Corporation a/k/a Advance Leasing & Rent-A-Car, Inc., appeals from the denial of summary judgment to it and the grant of summary judgment to plaintiff BCCP Enterprises, Inc. d/b/a Palmer & Jones Body in this suit to collect, inter alia, the costs of repair of a wrecked vehicle. The leasing company contends that the trial court misapplied Strother Ford, Inc. v. First Nat. Bank of Atlanta, 258 Ga. 319 (368 SE2d 489) (1988), and that there was no contract or tort basis for the suit. It further contends that the court’s award of attorney fees under OCGA § 13-6-11 for stubborn litigiousness was error.

1. The trial court’s order set out the undisputed facts, the applicable law, and its legal conclusions. Considering the record and the arguments urged on appeal, the judgment must be affirmed on the primary issues because plaintiff is entitled to it as a matter of law. The trial court’s order adequately explains its correct decision in this regard. That part of the judgment is affirmed in accordance with Rule 36 (3).

2. As to attorney fees, the court found that “Defendant’s actions in this matter were sufficiently stubborn and litigious so as to subject them to the payment of attorney’s fees.” The court awarded $3,000, stated by the court to be “that amount representing the attorney’s fees accrued by plaintiff in the prosecution of this claim.”

Expenses of litigation under OCGA § 13-6-11 can be awarded on summary judgment, but the movant must be entitled to them as a matter of law. City of Marietta v. Holland, 252 Ga. 299, 304 (3) (314 SE2d 97) (1984). Generally, “[wjhether a plaintiff is entitled to recover expenses of litigation is solely a question for determination by a jury. [Cits.]” Pritchett v. Rainey, 131 Ga. App. 521, 522 (206 SE2d 726) (1974). As it applies to this case, then, the record must show that defendant was stubbornly litigious as a matter of law. City of Mari etta, supra. This it does not do.

Decided February 14, 1991

Rehearing denied February 28, 1991

Kirby G. Bailey, for appellant.

Glass, McCullough, Sherrill & Harrold, Scott M. Klauber, R. Philip Shinall III, James R. Harper, for appellee.

Even assuming that it showed such actions on the part of defendant so that the court was stating an undisputed fact rather than making a finding of fact, the second fact which the movant must show is the reasonable value of the professional services which underlies the claim for attorney fees. First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 817 (4) (285 SE2d 203) (1981); Allen v. Harris, 113 Ga. 107, 108 (4) (38 SE 322) (1901).

There is no evidence in the record supporting the court’s award, either as to amount or as to its reasonableness. Thus it cannot be stated that these are undisputed facts. “On motion for summary judgment, the burden is on the movant to show that there is no genuine issue of material fact, ...” City of Marietta, supra.

Thus the grant of summary judgment to plaintiff on the issues related to the OCGA § 13-6-11 claim must be reversed. Rasmussen v. Nodvin, 174 Ga. App. 203, 205 (4) (329 SE2d 541) (1985).

Judgment affirmed in part and reversed in part.

Pope and Andrews, JJ., concur.


text:
    A90A1930, A90A2285, A90A2286.
    KILGO v. THE STATE (three cases).
    (403 SE2d 216)
   Beasley, Judge.

These three companion appeals emanate from defendant’s conviction and sentence on December 4, 1987, for trafficking in cocaine, possession of marijuana, driving under the influence of intoxicants, and driving too fast for conditions. The facts underlying the convictions are not necessary to a consideration of the appeal, but the moral of the story seems to be: “Don’t put your cocaine in a cooler or you’ll end up in a slammer.”

No timely appeal was filed and no timely request was made for a sentence review of his 25-year sentence for trafficking. However, in response to an out-of-time motion a sentence review hearing was held on August 26, 1988, at which the sentence was upheld. During 1988 and 1989 defendant pro se engaged in considerable correspondence with the trial court clerk and judge in an unsuccessful attempt to procure a trial transcript.

In October 1989 defendant filed a habeas corpus action which culminated in an adverse decision in January 1990. In late 1989 and 1990 Defendant filed various motions, including a motion for án out-of-time appeal and a motion for new trial. His motion for new trial was denied May 11, 1990. He then attempted to amend his motion for out-of-time appeal which amendment was denied on June 1, 1990. Case No. A90A1930 seeks review of this decision.

Defendant filed another motion for out-of-time appeal and a motion for mandamus which named the trial court judge as a party. On August 6, 1990, the trial court issued an order which explained that its previous order was intended to dispose of all defendant’s motions, including the motion for new trial, up to June 15 when the notice of appeal in Case No. A90A1930 was filed. The trial judge chose to recuse himself because of the mandamus action against him. This was the subject of appeal in Case No. A90A2285.

On August 16 the replacement judge, based on the assumption that “any alleged errors arising from the trial in this court were addressed by the habeas court,” denied the latest motion for out-of-time appeal. This is Case No. A90A2286.

1. Case No. A90A1930 is not directly appealable because it is interlocutory, involving the ruling denying an amendment to a motion for out-of-time appeal, and also the issue has been rendered moot by subsequent orders. It is therefore dismissed as moot.

2. Case No. A90A2285 is also dismissed because the only cognizable issue is framed by Case No. A90A2286.

3. In Case No. A90A2286 defendant contends that his motion for out-of-time appeal should have been granted because he was not timely informed of his right to appeal and his right to have his sentence reviewed by a sentence review panel. Because his sentence was reviewed, the sole issue remaining is whether defendant was deprived of his right to be informed about the necessity of a direct appeal within 30 days of the judgment against him.

Defendant is entitled to be advised of and insist upon his right to appeal and to be informed of his right to counsel on appeal. Reid v. State, 235 Ga. 378 (219 SE2d 740) (1975); Kreps v. Gray, 234 Ga. 745 (218 SE2d 1) (1975); Hopkins v. Hopper, 234 Ga. 236 (215 SE2d 241) (1975); Holloway v. Hopper, 233 Ga. 615 (212 SE2d 795) (1975); Thornton v. Ault, 233 Ga. 172 (210 SE2d 683) (1974). The failure to so inform defendant is a primary basis for the grant of an out-of-time appeal. See Shirley v. State, 188 Ga. App. 357, 359 (373 SE2d 257) (1988).

Under the Federal Rules of Criminal Procedure, Rule 32 (a) (2) 18 USCA, the trial court is required to inform defendant of his appellate rights. Georgia, while requiring defendant to be so advised, has not specifically placed the burden on the trial court, permitting defendant to be informed by his counsel or by the court. Chief Justice Nichols, specially concurring in Kreps, supra at 748, announced that he would require “that the record in the convicting court show that the defendant was properly advised of his right of appeal either by his attorney or by the court.” Where defendant is acting pro se, the burden should be upon the trial court to insure that defendant is informed of his rights. See Jacobs v. State, 184 Ga. App. 869 (363 SE2d 155) (1987).

Decided February 7, 1991

Rehearing denied February 28, 1991.

Ronald Jerry Kilgo, pro se.

William A. Foster III, District Attorney, Thomas V. Driggers, Assistant District Attorney, for appellee.

Defendant, at the time of sentencing, was represented by appointed trial counsel. Insofar as the record reveals, the trial court did not advise defendant as to his right to appeal. Compare Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981), which requires a record to be made regarding right to counsel. However, the record in this case has been supplemented with a copy of the detailed and unappealed order in the habeas court which found that defendant was not only aware of his right to appeal, but in consultation with his trial counsel chose not to exercise that right.

Thus defendant was not deprived of his right to appeal by ignorance on his part of either that right or of the time limits involved. If it was error for the court not to explain these rights at trial, the error was harmless. Where error is harmless, reversal is not indicated. Cf. Thornton v. Ault, 233 Ga. 172, supra.

Judgment affirmed in Case No. A90A2286; appeals dismissed in Case Nos. A90A1930 and A90A2285.

Pope and Andrews, JJ., concur.


text:
    A90A1950.
    ACTION STAFFING et al. v. SPALDING FORD-LINCOLN-MERCURY et al.
    (403 SE2d 61)
   Beasley, Judge.

This is a dispute between two successive employers and their respective insurers concerning liability for workers’ compensation benefits for employee/claimant Todd.

On February 15, 1988, Todd suffered an injury to his back while working for Action Staffing. His job duties involved a great deal of lifting. He was out of work for several months but returned in early June 1988. Todd continued to suffer some disability and so sought employment as a mechanic with Spalding Ford-Lincoln-Mercury that same month. He did not miss work at Spalding for several months. On September 14, he felt a sharp pain in his back while he was pushing a vehicle into the garage. At the recommendation of Spalding, Todd obtained medical treatment and was found disabled to return to normal duty work.

Pursuant to the employee’s application, a hearing was held before the ALJ the following April to determine whether Todd had sustained a change of condition from the February 15 injury, while "working for Action Staffing, or a new injury on September 14, while working for Spalding. Pursuant to Board Rule 102 (e), the ALJ issued an interlocutory order on April 21 directing Action Staffing and its insurer, Aetna Casualty & Surety Company, to pay claimant’s income benefits pending determination of whether claimant had sustained a change of condition or a new accident.

The ALJ issued an award on July 21, concluding that claimant had sustained a new accident arising out of and in the course of his employment with Spalding on September 14, so that Spalding and its insurer, First Southern Insurance Company, were responsible for payment of benefits and medical expenses. Spalding and First Southern were directed to reimburse Action Staffing and Aetna for benefits paid pursuant to the interlocutory order. The full Board affirmed the award.

Spalding and First Southern appealed to the superior court and filed a motion to remand for the Board to consider “newly discovered evidence” in the form of affidavits from medical providers stating that Action Staffing/Aetna had authorized medical care, including surgery, for claimant at the time they were denying liability. The contention was that by this authorization of medical care, Action Staffing/Aetna had constructively acknowledged liability for Todd’s disability occurring after the injury of September 14, 1988.

At this same time, Action Staffing/Aetna sought affirmance of the Board’s award by operation of law as of February 12, 1990, pursuant to OCGA § 34-9-105 (b) for failure to schedule a hearing within 60 days of the appeal to the superior court.

The court denied the request for an order that the Board award be affirmed by operation of law and granted the motion to remand. We permitted Action Staffing/Aetna this discretionary appeal.

1. OCGA § 34-9-105 (b) provides for appeal to the superior court from a Board award and reads in pertinent part: “The case so appealed may then be brought by either party upon ten days’ written notice to the other before the superior court for a hearing upon such record, subject to an assignment of the case for hearing by the court; provided, however, if the court does not hear the case within 60 days from the date the notice of appeal is filed with the board, the decision of the board shall be considered affirmed by operation of law unless a hearing originally scheduled to be heard within the 60 days has been continued to a date certain by order of the court. In the event a hearing is held later than 60 days after the date the notice of appeal is filed with the board because same has been continued to a date certain by order of the court, the decision of the board shall be considered affirmed by operation of law if no order of the court disposing of the issues on appeal has been entered within 20 days after the date of the continued hearing. If a case is heard within 60 days from the date the notice of appeal is filed, the decision of the board shall be considered affirmed by operation of law if no order of the court dispositive of the issues on appeal has been entered within 20 days of the date of the hearing.”

Notice of appeal to the superior court was filed on December 14, 1989. Hearing was set within 60 days for February 9, 1990. At the request of Spalding/First Southern, the appealing parties, the court on January 26 continued the hearing date until March 2 because of the number of cases on the February 9 calendar. On March 2, which was beyond the 60-day period, the hearing date was again rescheduled at Spalding/First Southern’s request to April 27. The court entered the order appealed from on May 15, expressly holding that OCGA § 34-9-105 did not prevent the court from re-setting the hearing twice, so long as it was scheduled for hearing to be held within the 60 days and initially rescheduled within the 60 days. It found that the second resetting of the hearing, for April 27, which resetting occurred outside the 60-day period, was caused in whole or in part by Action Staffing/ Aetna’s erroneous representation to opposing counsel on March 1 that ten-day written notice had not been received.

There was no affirmation of the Board award by operation of law for failure to comply with the requirements of OCGA § 34-9-105 (b). The original hearing date was set within the prescribed 60 days, as was the initial continuance. The first resetting was to a date certain albeit outside the 60-day period, a situation which is specifically addressed in the statute. While there is no language in the statute to expressly permit or prohibit a second resetting of a hearing date, the design of OCGA § 34-9-105 (b) is to “expedite the disposition of worker’s compensation claims that have been appealed to the courts of this state.” Felton Pearson Co. v. Nelson, 260 Ga. 513, 514 (397 SE2d 431) (1990). Therefore, repeated or unlimited continuing of a hearing would defeat the legislative purpose.

However, in a situation such as the one at bar in which a second resetting within the initially extended time frame was made in order to attempt to satisfy the ten-day notice requirement to the party responding to the appeal below and in which the second resetting was precipitated by the responding party’s mistake of fact that statutory notice had not been given, there is no violation of the letter or the spirit of the statute. To find otherwise would be to allow the party who has induced the alleged statutory noncompliance to profit from it and would be to “[exalt] the need for speedy disposition over fair treatment of the parties and the policy of reaching the merits of a controversy.” Id. Of course, it is the appealing party’s burden to assure that a timely hearing is scheduled and held or at least scheduled and continued. AT & T Technologies v. Barrett, 195 Ga. App. 675 (395 SE2d 22) (1990). The two time requirements must be construed to serve the overall purpose. The one did not interfere with the other, considering that the statute does not prohibit the court from exercising its discretion to order, beyond the 60-day period, a second continuance.

Thus, the court did not err in concluding that the second resetting was within its authority to order and thus rejecting the proposition that the Board award was affirmed by operation of law.

2. The superior court did err, however, in ordering remand to the Board under the circumstances found by the court.

While the superior court does have the authority to set aside the Board’s decision and remand, it can do so only for one of the five statutory grounds. OCGA § 34-9-105 (c) & (d). They do not encompass an assertion of newly-discovered evidence as such. Compare Bennington v. Rockdale Package Stores, 161 Ga. App. 450, 451 (1) (288 SE2d 709) (1982); regarding new evidence showing fraud, a ground covered by OCGA § 34-9-105 (c) (2). Cook v. Jordan Bradley Supply Co., 195 Ga. App. 604 (394 SE2d 400) (1990), a case discussed by both parties, differs significantly. There the allegation of newly-discovered evidence was made to the ALJ after the final award of the Board. It was held that there was no statutory authority for the Board (or ALJ) to reopen the case on this ground. In this case we are concerned with the extent of the superior court’s authority, not that of the ALJ or Board.

The superior court made no such finding as delineated in the statute. It merely found that Spalding/First Southern had proven the essential elements of newly discovered evidence and that such evidence would be relevant and material to issues before the Board. The movants had not even urged remand on any of the specified statutory bases. In addition, the superior court, even though ordering remand, failed to set aside the Board’s decision. See OCGA § 34-9-105 (c).

Decided January 31, 1991

Rehearing denied February 28, 1991

Cone & Shivers, Donald M. Shivers, for appellants.

Saveli & Williams, Benjamin H. Terry, Carrie L. Christie, Don H. Taliaferro, for appellees.

The superior court’s remand to the Board cannot stand and that portion of the court’s judgment is reversed. The case is remanded for determination of the merits of Spalding/First Southern’s appeal of the Board award in favor of Action Staffing/Aetna.

Judgment affirmed in part and reversed in part and case remanded.

Pope and Andrews, JJ., concur.

       Compare AT & T Technologies v. Barrett, 195 Ga. App. 675 (394 SE2d 22) (1990), where no hearing was scheduled within the 60-day period. The same is true in Synthetic Indus, v. Camp, 196 Ga. App. 637 (396 SE2d 518) (1990).


author: McMurray, Presiding Judge.

text:
    A90A1752.
    SHACKLEFORD v. THE STATE.
    (403 SE2d 74)
   McMurray, Presiding Judge.

Defendant was convicted of the offense of aggravated assault. Following the imposition of sentence and the denial of his motion for a new trial, defendant appeals. Held:

1. In his first enumeration of error, defendant contends the trial court erred by failing to charge the jury fully on the law of self-defense. We disagree.

First, we note that defendant’s trial counsel neither objected nor reserved objections to the trial court’s charge. Accordingly, defendant cannot now complain that the trial court’s charge on self-defense was incomplete. Jolley v. State, 254 Ga. 624, 627 (3), 628 (331 SE2d 516); Willis v. State, 193 Ga. App. 135, 136 (2) (387 SE2d 7). Second, we find the trial court’s charge on self-defense to be complete: The trial court charged on self-defense in the language of OCGA § 16-3-21 and instructed the jury that the burden was on the State to prove that defendant did not act in self-defense. See Hudson v. State, 171 Ga. App. 181, 183 (319 SE2d 28). See also Strickland v. State, 250 Ga. 624, 627 (300 SE2d 156).

2. There is no merit in defendant’s contention that the trial court erred in refusing to permit inquiries by defense counsel on cross-examination of the victim concerning the victim’s criminal record. “A witness cannot be discredited even by his own testimony that he has been convicted; it is necessary to introduce an authenticated copy of the record of the court in which he was convicted. Rewis v. State, 109 Ga. App. 83, 85 (134 SE2d 875). The record of conviction was not introduced.” Grisson v. State, 148 Ga. App. 362 (2) (251 SE2d 383).

3. Defendant contends the trial court erred in denying his motion for a new trial on the ground that his trial counsel rendered ineffective assistance. In this connection, defendant points out that his trial counsel (a) failed to request a complete charge on self-defense or to object to the trial court’s charge on self-defense; (b) failed to obtain an authenticated copy of the victim’s record of convictions; and (c) failed to subpoena two witnesses who would have given testimony demonstrating that defendant reasonably believed he needed to act in self-defense. This contention is without merit.

(a) The trial court’s charge on self-defense was complete. See Division 1. It cannot be said, therefore, that defendant’s trial counsel rendered ineffective assistance by failing to request a more complete charge on self-defense or to object to the trial court’s charge on self-defense.

(b) We fail to see how trial counsel’s failure to introduce the victim’s criminal record affected the outcome of the trial. Johnson v. State, 260 Ga. 159 (391 SE2d 113). (This is especially so since defendant was permitted to testify, without objection, that the victim “tried to hurt me before like this and he had been threatening he was going to kill me and all and he’d done killed one person . . .”) Accordingly, defendant has failed to meet the second prong of the ineffective assistance of counsel test. Johnson v. State, 260 Ga. 159, supra.

(c) At the hearing on his motion for new trial, defendant testified that two witnesses would have testified at trial concerning the reasonableness of defendant’s belief that he needed to act in self-defense but that his trial counsel failed to subpoena them. In this regard, defendant testified that (1) Milton Boykin would have testified at trial that shortly before the incident in question the victim said he was going to kill defendant and that (2) Johnnie Mae Chivers would have testified at trial that the victim had threatened to kill defendant.

Assuming, arguendo, that defendant himself could state at the hearing on his motion for new trial what the witnesses would have testified to at the trial, but see OCGA § 24-3-1, we fail to see how trial counsel’s failure to present the testimony of the witnesses would have affected the outcome of the case. See Johnson u. State, 260 Ga. 159, supra. The witnesses’ testimony would not have demonstrated that defendant reasonably believed he needed to act in self-defense because the testimony would not have shown that defendant was aware that the victim made the statements to Boykin and Chivers before the incident in question occurred.

Judgment affirmed.

Sognier, C. J., and Carley, J., concur.

Decided February 28, 1991.

Word & Flinn, T. Michael Flinn, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes T. McCabe, Assistant District Attorney, for appellee.


author: Banke, Presiding Judge. Birdsong, Presiding Judge,

text:
    A90A1905.
    GEORGIA OSTEOPATHIC HOSPITAL, INC. v. O’NEAL et al.
    (403 SE2d 235)
   Banke, Presiding Judge.

The appellees sued the appellant, Georgia Osteopathic Hospital, Inc. d/b/a Doctors Hospital, seeking damages for the death of their father, George O’Neal, who was killed by police after he “went berserk” and began attacking people with a knife while a patient at the hospital. The appellees also sought to recover actual and punitive damages for the pain and suffering allegedly experienced by O’Neal before he died. A jury returned a verdict in their favor in the amount of $550,000, and the case is before us on appeal from the denial of the hospital’s alternative motions for new trial and judgment notwithstanding the verdict.

The decedent was originally admitted to the hospital by Dr. Schnapp on November 22, 1983, with complaints of head and neck pain. During the course of that stay, a neurological evaluation was performed on him by Dr. Lara, who determined that he was suffering from neurovascular and muscle-contraction headaches. The decedent was discharged from this hospitalization on December 6, 1983, after a course of treatment which included physical therapy and the administration of various medications for inflammation, pain, and muscle tension. However, he continued to complain of neck and head pain and also began to report numbness in his right hand. Consequently, on December 12, 1983, he was readmitted to the hospital by Dr. Boecker, who was Dr. Schnapp’s partner or associate. Because the decedent was additionally exhibiting symptoms of hypertension at this time, there was some concern that he might be a candidate for a stroke. During the course of the following three days, numerous central nervous system depressant drugs — specifically Tigan, Nubain, Flexeril, Indocin, Halcion, Robaxin, Dalmane, Soma, and Haldol — were administered to the decedent. The appellees presented opinion testimony from a psychiatrist, Dr. James S. Cheatham, to the effect that the co-administration of these drugs precipitated an “anti-cholinergic drug reaction” in the decedent which ultimately caused him to go “berserk.”

The hospital records indicate that the nursing staff first became concerned about the decedent’s behavior at approximately 12:25 a.m. on December 15, which was about 20 hours prior to the violent outburst which led to his death. It was noted on his chart at this time that he was exhibiting an “inappropriate laugh” and that he was refusing to take his medications for the stated reason that they were aggravating his pain. During the ensuing hour-and-a-half, notations were made that he had complained of feeling short-winded and of experiencing numbness “in the back of his head” and that he had been observed kneeling over his bed. At 2:10 a.m., he appeared anxious and again refused his medication, prompting his nurse to notify the house intern, Dr. Newlon. After examining the decedent, Dr. Newlon telephoned the admitting physician, Dr. Boecker, at home and was instructed by the latter to discontinue several of the decedent’s medications.

The morning shift nurse, Ms. McKenzie, observed that the decedent appeared confused and disturbed; and she was sufficiently concerned about his condition that she spent several hours with him during her shift attempting to reassure and comfort him. The decedent made repeated complaints during this period to the effect that he did not think “all this medication” was helping him, and he threatened at one point to leave the hospital. Nurse McKenzie called Dr. Boecker several times to express concern about the situation, and he visited the decedent at 12:40 p.m. Observing that the decedent exhibited an “inappropriate affect and uncharacteristic confusion regarding time and events,” Dr. Boecker called in Dr. Lara, the neurologist who had examined him during his previous hospital stay, for a consultation. Dr. Lara examined the decedent at about 2:00 that afternoon and concluded that he was “suffering from a confusional state secondary to medication effect.” However, he testified at trial that he did not feel the decedent was dangerous at this time.

By 3:00 p.m., Dr. Boecker had discontinued all of the decedent’s prior medications, prescribing only Haldol, an anti-psychotic drug, on an as-needed basis. The nurse assigned to care for the decedent on the three-to-eleven shift was Ms. Daryle Branch, a licensed practical nurse who normally worked on the obstetrics ward. At 6:00 p.m., she made the following notation in his record: “Remains confused. He’s been up walking in the room.” Nurse Branch made her next entry in the decedent’s hospital record at 10:00 p.m., at which time she described him as “resting quietly” in bed with his eyes closed. Asked at trial to describe his behavior during the interim, Nurse Branch testified as follows: “[H]e was calm, he was quiet. ... He was conversing . . . probably, with his roommate . . . but nothing else was taking place; he was walkin’ around, he was watchin’ TV . . . you know, nothing out of the ordinary.”

At approximately 10:15 p.m. the decedent called the nurses’ station and asked for someone to come and look at his arm. Nurse Branch responded and found him sitting in a chair beside his bed. When she touched his arm, he jumped back in a manner which she evidently found alarming, prompting her to tell him she would have someone else look at his arm. The decedent replied, “Well, I’m gonna die anyway,” and then grabbed an object (which proved to be a pocketknife) and charged at her with it. Although Ms. Branch escaped uninjured, the decedent ultimately stabbed and wounded another nurse, a security guard, and himself before the DeKalb County police arrived and shot him to death in the hallway.

None of the physicians who examined the decedent between his admission to the hospital on December 12 and his death on December 15 was named as a defendant in this action, and none of them was employed by the hospital except for Dr. Newlon, who is not alleged to have been negligent in any way. The appellees’ claim against the hospital is predicated on allegations that (I) its pharmacy was negligent in failing to monitor the various medications being provided to the decedent for possible adverse interactions; (2) its nurses were negligent in failing to keep the decedent’s physicians as well as their own superiors at the hospital adequately informed about his deteriorating condition; and (3) the nurses were further negligent in failing to apply physical restraints to him before he went berserk. In addition, the appellees sought to prove (4) that Nurse Branch had given the decedent a discontinued drug, Dalmane, approximately a half hour before he went berserk. The appellees’ psychiatric expert, Dr. Cheatham, characterized Dalmane as a “very potent central nervous system depressant drug” and testified that if it was in fact administered on the night of December 15 it “was probably the straw that broke the camel’s back.”

During the trial, Ms. Branch testified that she had not administered Dalmane to the decedent on the night of December 15 but had administered it to him only on the previous night, before it was discontinued. However, she acknowledged having previously testified, during the course of a pre-trial deposition, that she had given him the drug on the night of December 15. It was shown that after consulting with the hospital’s attorneys during a break in this deposition, Ms. Branch had sought to correct this “mistake” by submitting an “errata sheet” stating that she had actually administered Dalmane to the decedent on December 14 rather than on December 15. Held:

1. The hospital contends that the trial court erred in allowing the appellees’ claims for the decedent’s pain and suffering and funeral expenses to be submitted to the jury because only the decedent’s estate had standing to pursue these claims, and no administrator or executor had been appointed to represent the estate. In the recent case of Walden v. John D. Archbold Mem. Hosp., 197 Ga. App. 275, 277 (3) (398 SE2d 271) (1990), this court held that “[u]nder the plain language in OCGA §§ 9-2-41 and 51-4-5 (b), upon the death of [the decedent] these causes of action vest[ ] in the administrator of his estate, not ... [in his] heirs and next of kin.” Based on this holding, the appellees now concede that “any damages awarded on their pre-death tort claims would have to be reversed.” However, they urge this court to presume that no such damages were awarded by the jury because it returned a lump sum verdict of $550,000, without specifying that any portion of it was for the pre-death tort claims. This is, of course, precisely the problem. Because the verdict is not itemized, it is impossible to ascertain whether it did or did not include damages for the predeath tort claims. Therefore, we have no basis upon which to conclude that the court’s action in allowing these claims to go to the jury was harmless error, and a new trial is required.

2. Since punitive damages are not available in a wrongful death action, Truelove v. Wilson, 159 Ga. App. 906, 907 (2) (285 SE2d 556) (1981) , it follows from the foregoing that the appellees were without standing to pursue such damages. Accordingly, we do not reach the issue of whether there was evidence of any wilful or malicious misconduct or conscious indifference to consequences in this case, such as would have authorized an award of punitive damages on the “predeath” tort claims. See generally Associated Health Systems v. Jones, 185 Ga. App. 798 (2) (366 SE2d 147) (1988).

3. The hospital contends that under the Supreme Court’s decision in Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982) , it could not be charged with a duty to control the decedent’s behavior because he was not a mental patient. The issue in Bradley Center v. Wessner was whether a mental health hospital could be held liable for the death of a third party at the hands of one of its patients based on evidence that it had failed to exercise reasonable care in controlling the patient’s conduct, where no privity had existed between the decedent and the hospital. In the present case, privity obviously did exist between the decedent and the hospital. Therefore, the Bradley Center theory of liability has no applicability here. Rather, the hospital’s duty was “that enunciated in Emory Univ. v. Shadburn, 47 Ga. App. 643 (1) (171 SE 192) (1933), aff’d 180 Ga. 595: ‘A private hospital in which patients are placed for treatment by their physicians, and which undertakes to care for the patients and supervise and look after them, is under the duty to exercise such reasonable care in looking after and protecting a patient as the patient’s condition . . . may require. This duty extends to safeguarding and protecting the patient from any known or reasonably apprehended danger from himself which may be due to his mental incapacity, and to use ordinary and reasonable care to prevent it. [Cits.]” Brandvain v. Ridgeview Inst., 188 Ga. App. 106, 112 (2) (372 SE2d 265) (1988), aff’d 259 Ga. 376 (382 SE2d 597) (1989).

4. The hospital contends that there was no evidence that the decedent’s death was proximately caused by any act or omission on the part of any of its employees. We agree that the evidence would not have supported a finding of liability under the first theory of liability advanced by the appellees, i.e., that the hospital pharmacy was negligent in failing to monitor the decedent’s medications for possible adverse interactions. All of the medications being administered to the decedent had been prescribed by his attending physicians, and there is no suggestion that the pharmacy made any mistake in filling these prescriptions. Clearly, the pharmacy staff was in no position under the circumstances to override or second-guess the medical judgment of the decedent’s physicians as to what drugs were appropriate for him. Cf. Hawkins v. Richardson-Merrell, Inc., 147 Ga. App. 481, 483 (249 SE2d 286) (1978). While the appellees’ psychiatric expert, Dr. Cheatham, insisted that the hospital pharmacy did have a duty to monitor the decedent’s medications for potential interactions, and while he further testified that he “saw no indications” that the pharmacy had fulfilled this duty, he offered no opinion whatever as to which, if any, of the decedent’s various prescriptions the pharmacy should have objected to or refused to fill. Under the circumstances, we hold that the conclusory testimony of this witness to the effect that the pharmacy personnel breached a general duty to monitor the decedent’s medications was insufficient to support an award of damages against the hospital.

5. The evidence similarly did not support an award of damages against the hospital based on the failure of its nurses to communicate with the decedent’s physicians or with their own superiors regarding the decedent’s behavior. It is apparent without dispute that the admitting physician, Dr. Boecker, was notified of the nurses’ concerns regarding the decedent’s behavior on several occasions during the 24-hour period prior to his death and that he in fact arranged for a neurological consultation less than eight hours prior to the decedent’s death in an effort to determine the cause of his behavioral abnormalities. The neurologist, Dr. Lara, testified he did not consider the decedent to be dangerous at the time he examined him.

Although nurse Branch’s notes indicate that the decedent was continuing to act “confused” several hours later, there is absolutely no evidence that his condition had changed significantly from what it was at the time of Dr. Lara’s examination. More importantly, there was no evidence that the decedent ever, at any time prior to the sudden outburst which led to his death, either engaged in or threatened to engage in hostile behavior. Under these circumstances, there is simply no evidentiary basis for a conclusion that his death was proximately caused by a failure on the part of the nursing staff to communicate accurate information regarding his condition. Compare Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173 (355 SE2d, 104) (1987) (where there was evidence that the patient’s death from heart failure could have been prevented but for the failure of emergency room nurses to disclose to the physician who was attempting to direct the patient’s treatment over the telephone that the patient had a heart condition, was complaining of stomach pain, and had taken a nitroglycerin pill shortly before arriving at the emergency room); Richmond County Hosp. Auth. &c. v. Dickerson, 182 Ga. App. 601 (356 SE2d 548) (1987) (where the decedent died of an aneurism following an eight-hour wait in the emergency room, during which period the emergency room personnel allegedly failed to monitor his vital signs and report that information to his physician).

6. With regard to the nursing staff’s failure to place physical restraints on the decedent — i.e., to strap him to a chair or bed — we find no evidence of any conduct on his part which would have authorized the nurses to take such action. As previously indicated, there was no evidence that the decedent had engaged in any overt acts or threats of violence towards anyone, including himself, prior to the conduct which led to his death, and nurse Branch testified without dispute that he was “calm” and “quiet” during the hours immediately prior to the attack. Compare Emory Univ. v. Shadburn, supra, 47 Ga. App. 643; Emory Univ. v. Lee, 97 Ga. App. 680 (104 SE2d 234) (1958); Brandvain v. Ridgeview Inst., supra, 188 Ga. App. 106. Indeed, had the members of the nursing staff taken it upon themselves to strap the decedent to his bed under these circumstances, without any direction by his physicians to do so, the hospital might well have found itself defending a suit based on that conduct. Cf. OCGA § 37-3-165 (b) (which provides that personnel of mental health facilities may authorize the application of physical restraints to patients only in emergency situations and only pursuant to written policies and procedures “which clearly delineate, in descending order, the personnel who can authorize the use of [such] restraints. . . .”).

7. The jury was, however, authorized to return a verdict against the hospital based on nurse Branch’s deposition testimony that she had given the decedent Dalmane, a discontinued central nervous system depressant drug, approximately a half hour before he went berserk. As previously indicated, Dr. Cheatham testified that if in fact Dalmane was administered to the decedent at that time, it was the “straw that broke the camel’s back.” There can be no question that hospital nurses are under a duty to refrain from giving patients unauthorized medications; and under Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982), “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.”

We must reject the hospital’s rather remarkable contention that the errata sheet submitted by nurse Branch following the break in her deposition “negated any testimony regarding the. giving of the medication on December 15th.” The jury was authorized to conclude from the portions of nurse Branch’s deposition which were read to it during the trial that her original testimony in this regard had not been the product of confusion about the dates but that she had fully intended to testify that she administered Dalmane to the decedent at 9:45 p.m. on the night he died. The appellant has provided us with no authority for the proposition that substantive deposition testimony may be erased from the record through the mere submission of an errata sheet, and we certainly do not intend to create any. Cf. OCGA § 9-11-32 (d) (4).

Although the appellant further contends that the hospital records conclusively support Ms. Branch’s trial testimony that she administered Dalmane to the decedent on the night of December 14 rather than the night of December 15, there is in fact an entry for Dalmane appearing on the nurses’ notes for the 15th, albeit with a line drawn through it and the notation, “D/C” (for discontinued), written beside it. Under the circumstances, it was within the jury’s province to determine whether this entry contradicted or supported the witness’ original deposition testimony.

8. Since it was apparent even before nurse Branch began her trial testimony that she intended to disavow her original deposition testimony, the trial court did not abuse its discretion in allowing the appellees to call her as an adverse witness, so as to permit them to begin cross-examining her immediately regarding her deposition. “[A] party may use a prior inconsistent statement made by his own witness both to impeach the witness and as substantive evidence without showing surprise.” Williams v. State, 251 Ga. 749, 800 (312 SE2d 40) (1983).

9. The hospital contends that the decedent’s death at the hands of the police must, as a matter of law, be considered the proximate result of “his own conduct in ignoring the commands of the police officers to drop his knife and continuing to advance with knife in hand upon the police officers.” We disagree.

“ ‘ “In order for a party to be liable ... for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result. (Cits.)” ’ Milton Bradley Co. v. Cooper, 79 Ga. App. 302, 307 (53 SE2d 761) [1949].” Lewis v. Harry White Ford, Inc., 129 Ga. App. 318, 320 (199 SE2d 599) (1973). See generally Atlanta Obstetrics &c. Group v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990). The jury was authorized to conclude from the evidence in this case that the decedent’s violent outburst had resulted from a drug-induced delirium or psychosis precipitated by the negligent administration of a drug which had been discontinued by his treating physician. While it may not have been foreseeable that the decedent would respond to the drug by attacking people with a knife or he would be shot to death by police as a result of that behavior, it was certainly foreseeable that the negligent administration of an inappropriate medication might result in injury to him.

The hospital’s reliance on Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63 (397 SE2d 576) (1990), as authority for a contrary holding is misplaced. The plaintiff in that case shot and killed his wife after having received Valium and Demerol at a hospital emergency room while being treated for a dislocated shoulder. The shooting had occurred off the hospital grounds, and the plaintiff had been convicted of murder as a result of it. Nevertheless, he subsequently filed suit against the hospital and the treating physician, contending “that the sole proximate cause of the injury sustained when he . . . shot his wife ‘was the incapacitating effect of the drugs which had been administered to (him) shortly before at [the hospital] . . . and the failure thereafter to adequately supervise [him] while (he was) under the influence of the drugs.’ ” Id. at 66-67. This court affirmed a grant of summary judgment to the defendants in that action, holding that the causal connection between the medical treatment received by the plaintiff at the hospital and his conduct in shooting his wife was too remote to countenance a recovery. The present case is clearly distinguishable from Strickland in that it was established without dispute in the present case that the decedent’s violent conduct was not criminal but was in fact the product of a drug-induced delirium or psychosis.

10. The hospital contends that the trial court erred in refusing to submit to the jury the issue of whether the decedent was survived by a common-law wife. If he was, then she, rather than his children, had exclusive standing to bring the wrongful death action. See OCGA § 51-4-2 (a); Mack v. Moore, 256 Ga. 138 (345 SE2d 338) (1986).

The putative wife, Tiny Pruitt (a/k/a Tiny Pruitt O’Neal), testified that she and the decedent had lived together continuously from 1974 until his death and had held themselves out as husband and wife during that period. She stated she had used the name O’Neal “when we was gettin’ stuff together” and that “we stayed together so long dey just considered us married, so I used it then.” She conceded, however, that some people in the neighborhood still called her Pruitt and that she and the decedent had “talked some about getting married . . . [b]ut . . . never did it. . . .”

In order for a common-law marriage to come into existence, the parties must be able to contract, must agree to live together as man and wife, and must consummate the agreement. See OCGA § 19-3-1; Fireman’s Fund Ins. Co. v. Smith, 151 Ga. App. 270 (1) (259 SE2d 675) (1979). “Whether a man and a woman have entered into a common law marriage is a question of fact.” Taylor u. Taylor, 243 Ga. 506, 508 (255 SE2d 32) (1979). “‘[T]he . . . fact of cohabitation is treated as essential, if not the main factor in establishing in this State a common-law marriage.’ ” Fireman’s Fund Ins. Co. v. Smith, supra, 151 Ga. App. at 271.

There clearly is evidence in this case to support a finding that the decedent and Ms. Pruitt routinely held themselves out as man and wife while cohabitating as such, and there is no suggestion that any legal impediment existed to their ability to contract a marriage. Ms. Pruitt’s statement that she and the decedent had “talked some about getting married . . . [b]ut. . . never did it . . .” does not necessarily negate the existence of a common-law marriage relationship, for a couple may enter into such a relationship yet nevertheless discuss and plan a marriage ceremony for the purpose of formalizing the arrangement. Accord Brown v. Carr, 198 Ga. App. 567 (_SE2d_) (1991). See also Bolden v. Southerland, 127 Ga. App. 71 (192 SE2d 718) (1972). We hold that Ms. Pruitt’s testimony provided sufficient evidence of a common-law marriage to warrant sending the issue to the jury and that the trial court accordingly erred in declining to do so. Accord Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758 (1) (242 SE2d 483) (1978).

11. The hospital contends that the trial court erred in refusing to allow the forensic pathologist who had performed the autopsy on the decedent to state whether, in his opinion, Dalmane, would have “showed up” on the drug screening test which he had commissioned in connection with the autopsy had that drug been administered to the decedent between 9:00 and 10:00 p.m. on December 15, 1983. It was shown that the pathologist had given the toxicologist a list of medications to test for but that Dalmane was not on this list. Although the pathologist was allowed to testify that the drug screening test had not revealed the presence of Dalmane in the decedent’s blood, he was not allowed to state whether he “would . . . have expected it to turn up” if it had been administered to him “about an hour before [he] went berserk.” Inasmuch as the pathologist’s answer to this question would have been both irrelevant and misleading in the absence of evidence that the decedent’s blood had actually been tested for Dalmane, we find no error.

12. The hospital complains that the trial court improperly prevented it from cross-examining the appellees’ medical expert, Dr. Cheatham, regarding his alleged failure to order physical restraints for one of his former patients who had committed suicide after being admitted to a psychiatric hospital. The incident in question, which was unrelated to the present case, had resulted in Dr. Cheatham’s being sued for medical malpractice; and he had been represented in that action by the same law firm which was now representing the appellant hospital. The trial court ruled that to permit the hospital’s counsel to attempt to impeach its former client by cross-examining him about the incident would be violative of the attorney-client relationship. The hospital contended, however, that Dr. Cheatham had waived the privilege by responding to questions on the same subject during the trial of a previous action against it arising out of Mr. O’Neal’s death. Dr. Cheatham explained during the trial of the present case that he had not been aware during the previous trial that he was entitled to invoke the attorney-client privilege with respect to this line of questioning.

Ethical Consideration 4-5 of the Code of Professional Responsibility specifies: “A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of his client after full disclosure, such information, for his own purpose.” We must presume that, in defending Dr. Cheatham against the malpractice claim arising from the incident in question, the hospital’s attorneys were in a position to acquire information from him of a confidential nature which would have assisted them in cross-examining him about the incident in the present action. Thus, notwithstanding the fact that Dr. Cheatham might previously have testified about certain aspects of the incident without invoking the attorney-client privilege, we hold that the trial court acted properly in allowing him to invoke the privilege with respect to such questioning in the present action.

13. The hospital contends that because the appellees’ claim for damages for the decedent’s pain and suffering was not properly before the jury (see Division 1, supra), the trial court erred in allowing into evidence certain photographs depicting his condition after the shooting.

“ ‘The admission or exclusion of photographic exhibits is a matter within the discretion of the trial court, and unless abuse of discretion appears, no error is shown. DeKalb County v. McFarland, 231 Ga. 649 (2h) (203 SE2d 495) [1974].’ Thornton v. Thornton, 232 Ga. 666, 667 (1) (208 SE2d 557) (1974). ‘Photographs are ordinarily admissible unless they contain inflammatory depictions which might be prejudicial toward the objecting party. . . .’ Glaze v. Bailey, 130 Ga. App. 189, 191 (4) (202 SE2d 708) (1973) and cit.” Worrell v. Worrell, 242 Ga. 44, 47 (247 SE2d 847) (1978). See also Cagle Poultry &c. Co. v. Busick, 110 Ga. App. 551, 552-553 (139 SE2d 461) (1964).

The photographs at issue obviously had some relevance to the wrongful death aspect of the case in that they showed how the decedent had died. Although they might be characterized as somewhat gruesome, we find nothing about them which, under the circumstances of this case, could reasonably be characterized as prejudicial or inflammatory. Accordingly, we find this enumeration of error to be without merit.

14. The hospital’s final enumeration of error is directed to the overruling of its objections to several of the trial court’s jury instructions, as well as the court’s failure to give several of its requested charges. In all, 13 separate charges and requests to charge are addressed by this enumeration of error; however, the supporting argument provided by the appellant consists in its entirety of the following statement: “The reasons for these objections are stated clearly on T-1630 through 1636 which are, due to space limitations, incorporated herein by reference.”

We find this statement insufficient to qualify as “argument” within the contemplation of Court of Appeals Rule 15 (c) (2). Although the appellant has sought to expand on it in various supplemental briefs filed with this court, it is well settled that “a supplemental brief does not resurrect from abandonment enumerations not addressed in the initial brief. (Cits.)” McKinney v. South Boston Savings Bank, 156 Ga. App. 114, 116 (274 SE2d 34) (1980). This enumeration of error is therefore deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2).

15. The appellant has filed a total of nine separate briefs in support of this appeal, totaling over 116 pages. (The seventh was entitled, “Closing Brief,” but, alas, failed to live up to its billing in this regard.) The appellees have moved this court to assess damages against the appellant for filing a frivolous appeal, complaining that they have been “compelled to incur exorbitant fees and expenses to respond to these briefs.” While we agree with the appellees that much of the argument advanced by the appellant in its prolific outpouring of briefs has been redundant, and while we are sympathetic to their desire to discourage this type of advocacy, we are obviously in no position to declare the present appeal frivolous, inasmuch as it has resulted in a reversal of the judgment below. The appellees’ motion must, therefore, be denied.

Judgment reversed.

Cooper, J., concurs. Birdsong, P. J., concurs specially.

Birdsong, Presiding Judge,

concurring specially.

I concur with the majority opinion, except that the issues addressed in Divisions 11 and 12 thereof require further explanation in view of a potential for error upon retrial.

As to Division 11: Admission of evidence rests largely within the sound discretion of the trial court. Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573.(2) (377 SE2d 15). Appellant currently has failed to show an abuse of discretion by the trial court in excluding the pathologist’s opinion as to whether he would have expected Dalmane to be present in the decedent’s blood if it had been administered to him about an hour before he went “berserk,” and whether he would have expected “it to turn up” during the drug screening test.

As a general rule, however, even if evidence is of doubtful relevancy or competency, it should be admitted and its weight left to the jury. Id. Thus, “ ‘[u]nless the potential for prejudice in the admission of evidence substantially outweighs its probative value the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.’ ” Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395), citing West v. Nodvin, 196 Ga. App. 825, 828 (3) (397 SE2d 567). I believe the answer to the above question, whether affirmative or negative, would not have been misleading, and the question would be relevant. Further, merely because deceased was not tested for Dalmane would not render an answer that Dalmane should have been present and detectible in his blood, at the time of testing irrelevant; such fact goes merely to weight, not admissibility. Thus, if a retrial occurs and the expert duly qualified, it again would lie in the trial court’s sound discretion whether to admit this evidence, and error would not be committed by allowing its introduction if such is deemed fundamentally fair in the search for truth.

As to Division 12: Although a party is entitled to a thorough and sifting cross-examination, the scope of such examination is within the sound discretion of the trial court. Thomas v. Clark, 188 Ga. App. 606, 608 (4) (373 SE2d 668). The record before us shows no abuse of discretion on the part of the trial court in excluding information presumptively obtained by reason of the attorney-client privilege. However, I believe that unlike any evidence that Dr. Cheatham was once sued for malpractice evidence regarding his prior failure to order physical restraints for one of his former patients who had committed suicide after being admitted to a psychiatric hospital would have some relevance. See Division 1, above. Thus, if on a retrial it could be shown that the evidence was not obtained by means of the attorney-client privilege, or if similar evidence was obtained through an entirely independent source and not due to attorney-client information, it would then lie in the sound discretion of the trial court whether to allow cross-examination into this delicate area bearing in mind that “[t]he object of all legal investigation is the discovery of truth.” See generally OCGA § 24-1-2. With these express reservations, I concur fully with the majority and with the reversal of the judgment.

Decided February 28, 1991.

Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., for appellant.

Howard, Secret & Howard, James W. Howard, for appellees.


text:
    A90A1971.
    JUDGE v. WELLMAN.
    (403 SE2d 76)
   Beasley, Judge.

Plaintiff Connie Judge appeals the grant of summary judgment in favor of defendant Frances Wellman.

Wellman owned two contiguous tracts of land, one behind the other, which were located on a corner at 810 Clark Avenue and 204 Adkins Drive. There was no clear line of demarcation between the two properties, but 810 Clark contained a commercial building while 204 Adkins was vacant.

Wellman and Judge executed a written lease for a term of one year on August 1, 1988. Couched in residential form language it refers to an “apartment, duplex, house” located at “808 Clark Avenue” with no other description of location. Because Judge planned to use the building as a beauty parlor, she sought permission to use the unimproved land behind the building for parking space. Wellman told Judge she could use the land as far as the railroad track but Judge would have to clean it off. This area comprised a portion of 204 Adkins Drive. Judge also sought to have certain improvements made on the property but Wellman declined. Judge testified by deposition that she wanted a five-year lease and was told that would be accomplished later.

The form used was appropriate to a residential lease rather than for business use. It contained no provision about parking and provided that the premises were rented “as is.” The lease also contained an entire agreement clause which stated: “This agreement and any attached addendums constitute the entire agreement between the parties and no oral statements shall be binding.”

Three days after the lease was executed Wellman sold a portion of the 204 Adkins Drive property to the county under threat of condemnation. Judge learned of this sale two months later, after having substantially invested in improvements to the property. In January 1989 she moved from the premises because she lacked available parking for her customers.

Judge sued to recover losses resulting from breach of contract or fraud in the inducement to enter the contract and for unjust enrichment. After discovery, Wellman moved for summary judgment, which was granted.

The lease document is insufficiently clear as to what property actually was leased. It was a commercial building, not an “apartment, duplex, [or] house.” There was no 808 Clark location but only 810 Clark. The form provided the premises would be used for residential purposes only and prohibited certain business activities, which obviously the parties did not intend. No precise determination of the extent of the leased premises is possible from an examination of the document.

The issue here does not involve construction of the contract, which ordinarily is a question for the court, but what the parties intended the contract to encompass as a matter of fact. See Travelers Indem. Co. v. A. M. Pullen & Co., 161 Ga. App. 784, 789 (6) (289 SE2d 792) (1982); Wahnschaff Corp. v. O. E. Clark &c. Co., 166 Ga. App. 242, 243 (1) (304 SE2d 91) (1983). Because the lease is incomplete and ambiguous, parol evidence is admissible to ascertain the intention of the parties and to explain exactly what its terms were. Taylor Freezer Sales Co. v. Hydrick, 138 Ga. App. 738 (227 SE2d 494) (1976). Accord Gans v. Ga. Fed. Savings &c. Assn., 179 Ga. App. 660, 663 (2) (347 SE2d 615) (1986). The question whether the parties intended to include that part of 204 Adkins needed for parking within the framework of the lease is a factual matter which should not be resolved by the trial court as a matter of law.

An issue also remains regarding whether Judge was induced to contract by misrepresentation regarding availability for use of the land behind the building. Parol evidence is admissible to establish fraud in the inducement, even though there is an entirety or merger clause in the written contract, where the complaining party does not elect to stand on the contract but proceeds on fraud. City Dodge v. Gardner, 232 Ga. 766, 768 (208 SE2d 794) (1974); Brown v. Techdata Corp., 238 Ga. 622 (234 SE2d 787) (1977); Del Mazo v. Sanchez, 186 Ga. App. 120, 124 (366 SE2d 333) (1988).

Another ground for reversal appears. Because there was no “808 Clark Avenue,” the trial court in an otherwise commendable effort to ascertain the actual situation, considered evidence extrinsic to the record. This is not permitted. See OCGA § 9-11-56 (c); 29 AmJur2d 55, Evidence, § 15; 31 CJS 832, Evidence, § 11. “Because the court below based its conclusions on evidence not properly before the court,” the judgment must be reversed. Buchanan v. City of Clayton, 180 Ga. App. 740, 741 (350 SE2d 320) (1986).

For the foregoing reasons, there was no absence of material fact so as to warrant the grant of summary judgment.

Decided February 28, 1991.

James N. Finkelstein, for appellant.

Hodges, Erwin & Hedrick, William H. Hedrick, for appellee.

Judgment reversed.

Pope and Andrews, JJ., concur.


text:
    A90A2311.
    WIMPEY v. BISSINGER.
    (403 SE2d 78)
   McMurray, Presiding Judge.

Plaintiff, Harry R. Bissinger, Jr., brought suit against Leon Wimpey in the State Court of DeKalb County and couched his complaint, as amended, in two counts. In Count 1, plaintiff alleged defendant owed him the amount of $15,000 plus interest pursuant to a promissory note. In Count 2, he alleged defendant was indebted to him in the same amounts pursuant to a contract.

The “promissory note” or “contract” upon which plaintiff’s action was based was attached to and made a part of the complaint. Denominated as an “Agreement,” it is a handwritten document which reads as follows: “1. Leon to pay Harry x/% of Harry’s ‘out of pocket’ expenses on Trentwalk settlement with creditors, not to exceed xh of $25,000. Leon also to repay anything paid by Harry to Kitchens, Kelley, Gaynes in excess of Harry’s xh share. Leon’s obligation to be evidenced by a promissory note. 2. Terms of Note. One year term. May renew for 1 yr. by paying interest for 1 yr. Rate — 9% per annum. 3. Collateral. Kitchens, Kelley, Gaynes to take a 2nd mortgage on Leon’s house for unpaid legal fees and expenses. Harry to take 3rd mortgage to secure sum due under promissory note from Leon to Harry.” The agreement was signed on December 15, 1987, by plaintiff, defendant and Gary Shmerling (on behalf of Kitchens, Kelley, Gaynes, Huprich and Shmerling).

Defendant answered the complaint and denied any liability to plaintiff. Thereafter, each party moved for summary judgment.

Plaintiff submitted an affidavit in support of his summary judgment motion. He testified that he is a director, president and sole shareholder of HRB Investments, Inc. (“HRB”); that HRB and New South Properties, Inc. (“New South”) formed Trentwalk Ltd. (“Trentwalk”), a joint venture, to acquire, develop and market townhouses in Decatur, Georgia; that Trentwalk acquired the townhouses from the Nationwide Lending Group (“Nationwide”); that plaintiff and defendant personally endorsed certain loans used to finance construction of the townhouses; that Trentwalk retained the law firm of Kitchens, Kelley, Gaynes, Huprich & Shmerling to represent it; and that plaintiff, defendant, and their respective corporations were jointly and severally liable for the payment of legal fees to Kitchens, Kelley, Gaynes, Huprich & Shmerling.

Plaintiff further testified that Trentwalk subsequently suffered cash flow problems and fell in arrears on its obligations; that Trentwalk sold the townhouses back to Nationwide pursuant to a written settlement agreement; that plaintiff and defendant executed the settlement agreement in their respective corporate capacities and individually as “guarantors”; and that, pursuant to the settlement agreement, it was incumbent upon HRB, New South, plaintiff and defendant, as guarantors, to satisfy Trentwalk’s obligations to creditors in the amount of $31,380.45.

With regard to the agreement which is the subject of this action, plaintiff testified that, prior to closing the Nationwide settlement agreement, defendant informed plaintiff that neither defendant nor New South had the funds to pay the obligations to creditors; that HRB did not have the funds to cover its obligations so plaintiff “offered to cover the outstanding balance due at closing” if defendant would agree to pay plaintiff V2 of the sums advanced by plaintiff; that defendant accepted plaintiff’s offer; that Gary Shmerling demanded $5,000 from plaintiff and defendant to cover a portion of the legal fees due and owing; that plaintiff was willing to pay $25,000 to Trentwalk’s creditors and $5,000 to its attorneys if defendant would execute an agreement to repay one-half of the sums advanced by plaintiff; that plaintiff agreed to permit defendant to repay one-half of the sums “in one year at 9% per annum interest with an option to renew for another year if interest due at the end of the first year was paid”; that defendant agreed to the terms of plaintiff’s offer; and that the terms were reduced to writing in the handwritten document set forth above.

Finally, plaintiff testified that, at his behest, his wife “wrote a check for $25,000.00 payable to HRB . . . from jointly owned funds deposited in an account under her name. The check was then deposited in HRB’s operating account. ... At the closing, a payment of $25,000.00 was made by [plaintiff] for the Joint Venture creditor obligation through a check drawn on the HRB . . . operating account. . . . The remaining balance due creditors of $6,380.45 was covered through a promissory note to Nationwide signed by [defendant] and [plaintiff] in [their] respective corporate and individual capacities. ... [A] payment of $5,000.00 was made by [plaintiff] for the Joint Venture legal fee obligation through a check drawn on the HRB . . . operating account. . . . Subsequent to the closing, a promissory note for $12,500.00 and Deed to Secure Debt made payable to [plaintiff] was sent to [defendant]. . . . [Defendant] refused to sign the note or execute the Security Deed. . . . [Defendant] refused to pay [plaintiff] the $12,500.00 and refused to pay [plaintiff] the $2,500.00. . . ."

In opposition to plaintiff’s motion for summary judgment and in support of his own summary judgment motion, defendant submitted an affidavit in which he testified: “All payments to the creditors of Trentwalk were made by a closely held corporation by the name of HRB. . . . The $25,000.00 referred to in Paragraph 1 of the Agreement was paid by HRB . . . and not by the Plaintiff personally. . . . HRB . . . acquired the $25,000.00 with which to pay the creditors of Trentwalk from . . . the Plaintiff’s wife, and not the Plaintiff. . . . HRB . . . paid $5,000.00 to the law firm . . . [Plaintiff] paid no money to [the law firm] pursuant to the Agreement sued on. [Defendant] never signed a contract agreeing to reimburse HRB ... for any payments it made to anyone.”

Following a hearing, the trial court granted plaintiff’s motion for summary judgment and denied defendant’s motion for summary judgment. Defendant appeals. Held:

1. Defendant takes the position that he cannot be held liable to plaintiff because plaintiff did not make the payments contemplated in the agreement. We disagree.

“If there is a valid consideration for a promise, it does not matter from whom it moves and it may be given by the promisee or by some other person; the promisee may sustain his action, though a stranger to the consideration.” OCGA § 13-3-42 (d). It follows that defendant is liable to plaintiff pursuant to the agreement whether it was plaintiff, plaintiff’s wife or HRB, which made the payments contemplated in the agreement.

2. We cannot comprehend defendant’s assertion that plaintiff is not the real party in interest. Plaintiff, the promisee, is entitled to maintain this action even though he may have been a stranger to the consideration. OCGA § 13-3-42 (d).

3. Defendant’s contention that plaintiff’s action is barred by the statute of frauds is wholly without merit. Defendant’s obligation did not constitute a promise to answer for the debt of another. Defendant promised to answer for his own debt. Besides, defendant’s promise was in writing and signed by defendant. OCGA § 13-5-30.

4. The agreement sued upon is not, as defendant contends, a mere agreement to agree in the future. It is a promise for a promise. Plaintiff promised to pay plaintiff’s and defendant’s debts and defendant promised to repay plaintiff.

5. The trial court did not err in granting plaintiff’s motion for summary judgment and in denying defendant’s motion for summary judgment.

Judgment affirmed.

Sognier, C. J., and Carley, J., concur.

Decided February 28, 1991.

Carl V. Kirsch, for appellant.

Theodore G. Frankel, for appellee.