author: Beasley, Chief Judge.

text:
    A95A0494.
    A95A0495.
    A95A0496.
    PAGE v. HSI FINANCIAL SERVICES, INC. HENDERSON et al. v. HSI FINANCIAL SERVICES, INC. PAGE, SEVY & HENDERSON, P.C. v. HSI FINANCIAL SERVICES, INC.
    (461 SE2d 239)
   Beasley, Chief Judge.

In 1985, Page, an attorney, and HSI Financial Services, Inc., (HSI), a collection agency owned by member hospitals, entered into a contract for legal services under which HSI turned over delinquent hospital accounts to Page for collection. The contract required Page to deposit payments received into his general trust account and remit all collected funds, less attorney fees in the amount of 30 percent of all payments, to HSI on a monthly basis.

In 1988, the law firm of Page, Sevy & Henderson, P.C. (PSH), was formed. HSI continued to refer delinquent accounts to PSH, acting by and through Page.

PSH and Page failed to pay remittances in the total amount of $373,841.21 to HSI for the months January through March 1990. As a result, PSH, Page, and HSI entered into an Agreement of Resolution in May 1990, and PSH executed a promissory note in favor of HSI.

In the agreement, the parties acknowledged that PSH and HSI had been doing business with each other, with PSH functioning as collection attorneys for HSI, and that the ordinary course of business had been for PSH to remit any funds owing to HSl on approximately a 90-day basis (rather than on a monthly basis as required by the 1985 contract). PSH agreed to pay the January statement ($121,931.16) and February statement ($100,182.31) to HSI in accordance with the promissory note; to pay the March statement ($151,727.74) on or before June 1, 1990; and to pay all other statements within 30 days and thus remain current in its obligations to HSI.

The promissory note was in the principal sum of $222,113.47, with interest of 18 percent per annum on the unpaid balance. Principal and interest were payable in 12 equal monthly installments of $20,363.36, with the first payment due June 1, 1990. If PSH failed to pay any installment when due, or to comply with any terms or requirements of the Agreement of Resolution, HSI was given the right to accelerate the maturity of unpaid principal and accrued interest. PSH was entitled to ten days’ notice with right to cure the default. The note also gave HSI the right to collect attorney fees in an amount equal to 15 percent of principal and interest should the note be collected by law or through an attorney. Page, Sevy, and Henderson personally guaranteed the note, and Page agreed to assign benefits of a $1,000,000 life insurance policy to HSI to secure PSH’s obligation on the note.

PSH ceased making payments to HSI on its accounts following its remittance of amounts owed from the September 1990 collections, and it ceased making payments on the note after paying the December 1990 installment. Sevy resigned from PSH in November 1990. Collections from October 1990 through January 1991 totaled $687,042.73. Despite HSI’s letter dated January 30, 1991, demanding immediate payment of all funds in possession of PSH and Page which were the property of HSI, they failed to account for or pay the funds.

On February 4, 1991, HSI filed the present complaint against PSH and against Page, Sevy, and Henderson in their individual capacities. In Count 1 of the complaint, HSI stated that Page and PSH were insolvent and asked that they be enjoined from receiving, obtaining, or converting any further payments from debtors on collection cases referred by HSI and from transferring, selling, or otherwise disposing of any assets without court order. In Count 2, HSI requested the appointment of a receiver for PSH. The remaining counts advanced various theories in support of the right to recover $687,042.73 in unremitted monthly collections, unpaid principal and interest due under the promissory note, an interest penalty, and attorney fees.

The day after the complaint was filed, the superior court appointed a receiver for PSH and issued a temporary restraining order enjoining defendants from transferring any of the assets of PSH. Shortly thereafter, Page, in a petition filed with the State Disciplinary Board, admitted that he had received approximately $510,308.85 in payments on HSI accounts from October through December 1990; that he failed to remit the funds owed to HSI; and that he was unable to account for the whereabouts of the funds. He voluntarily surrendered his license to practice law in this state.

HSI later moved for partial summary judgment as to Counts 3 and 5 through 8 of the complaint. PSH filed a “counter-motion” for summary judgment and motion to dismiss. In a lengthy order, the court granted HSI’s motion and denied those of PSH. In Case No. A95A0494, Page appeals. In Case No. A95A0495, Henderson and Sevy appeal. In Case No. A95A0496, PSH appeals.

1. Page contends that the court erred in granting summary judgment on Count 3, in which HSI requested issuance of a money rule against Page for the $687,042.73 in unpaid monthly collections.

“Under [OCGA § 15-19-16] ‘(w)here attorneys retain in their hands the money of their clients after it has been demanded, they are liable to rule. . . .’ The ‘rule’ referred to in [OCGA § 15-19-16] is found in [OCGA § 15-13-3 (a)] which provides that if an attorney fails to pay to the proper person money he may have in his hands collected by virtue of his office, then after written demand and upon application and subsequent neglect or refusal to pay, the attorney shall be compelled to pay at the rate of 20 percent per annum upon such sum from the date of demand (in addition to paying over the wrongfully withheld sum). This procedure is a ‘summary remedy to enforce the paying over of money belonging to a client, wrongfully withheld by his attorney, (and) is penal in nature. . . .’ [Cit.] However, this otherwise summary remedy is not available where the attorney answers the complaint in writing and effectively denies its allegations. [Cits.]” West v. Haupt, 163 Ga. App. 907, 909 (1) (296 SE2d 723) (1982).

Page argues, among other things, that if the money rule applies, it must apply to PSH rather than to him, because the evidence shows that after PSH was formed HSI began to look to PSH as an entity rather than to him personally for payment of funds. To the contrary, the evidence unequivocally establishes that after PSH was formed, HSI looked to both PSH and Page. Both were parties to the Agreement of Resolution, and Page personally guaranteed the promissory note between PSH and HSI.

The admissions made by Page to the State Disciplinary Board establish that the HSI funds were “in his hands” and that he failed to either remit the funds to HSI or account for their whereabouts after HSI made a demand for them on PSH and Page prior to the filing of the complaint. Although Page answered the complaint, he did not “effectively” deny its allegations. He has asserted no facts which could be found to constitute “good cause” for not remitting the funds to HSI. HSI was thus entitled to a money rule against Page and to the 20 percent interest penalty. See Nations v. Winter, 165 Ga. App. 890, 892 (4) (303 SE2d 64) (1983).

2. Page contends that the court erred in ruling that HSI is entitled to a recovery under the money rule for the full amount of collected funds without any reduction for attorney fees.

The superior court correctly rejected this argument on the authority of Gray v. Conyers, 70 Ga. 349, 355-356 (5) (1883): “Fees to collect money by counsel are hardly payable, if the money be not paid over when collected and demanded, without legal reasons therefor. ... It will do the client little good to collect and not pay over. To force him to litigate to get the money from his lawyers is to make him incur fees to other lawyers, and he ought not to pay both.”

3. Page and PSH contend that the court erred in concluding that they are liable to HSI under the breach of contract theory in Count 6.

From the outset, Page never remitted collected funds to HSI on a monthly basis as required by the 1985 contract. Page and PSH argue that HSI thereby acquiesced in a departure from the terms of the original contract and that this constituted a waiver of its right to now enforce those terms. However, HSI’s entry into the 1990 Agreement of Resolution shows that it did not intend to waive the requirement that collected funds be paid to it within the time frame called for by the 1985 contract. Chapman v. Nation, 193 Ga. App. 632, 634 (1) (388 SE2d 744) (1989). Nor could HSI’s acquiescence in late payments under the 1985 contract have constituted a breach of its duty to mitigate the damages sought, as suggested by PSH, Sevy, and Henderson.

PSH argues that it cannot be held liable to HSI for breach of contract because it was not a party to the 1985 contract between HSI and Page. That is of little consequence because it was a party to the 1990 Agreement of Resolution.

4. Page correctly contends that the court erroneously held that HSI is entitled to 100 percent, rather than 70 percent, of amounts collected under its breach of contract count. That is what the 1985 contract provides, so that damages for breach of contract constitute only 70 percent. Whether HSI is entitled to recover attorney fees for breach of contract is governed by OCGA § 13-6-11, which is the next issue.

5. Page contends that the court erred in holding that HSI is entitled to an award of attorney fees under OCGA § 13-6-11, based upon bad faith by Page and PSH in performance of the contract with HSI.

OCGA § 13-6-11 states, “The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”

Although the trial court may grant attorney fees or litigation expenses under OCGA § 13-6-11 where it sits as the trier of fact, Derrickson v. Kristal, 148 Ga. App. 320, 321 (3) (251 SE2d 170) (1978), it is not a trier of fact on a motion for summary judgment. It has been uniformly held that the question is for the jury. E.g., Spring Lake Property Owners Assn. v. Peacock, 260 Ga. 80, 81 (390 SE2d 31) (1990) and cit. On the other hand, a court must grant a defendant’s motion for summary judgment on a claim based on OCGA § 13-6-11 if there is no evidence of bad faith or stubborn litigiousness. Carter v. Allstate Ins. Co., 197 Ga. App. 738, 743 (4) (399 SE2d 500) (1990). This case does not involve such a motion.

Moreover, attorney fees are not awardable under OCGA § 13-6-11 as a matter of law under the circumstances of this case, so it will not be a jury question. HSI is being compensated for its attorney fees in recovering the unpaid monthly collections through counsel’s forfeiture of the 30 percent attorney fee under the money rule, and HSI is also being compensated for its attorney fees in bringing suit on the promissory note through the provision in the note for the collection of attorney fees in the amount of 15 percent of principal and interest. HSI does not argue, and it does not appear, that the attorney fees actually incurred by it exceed these amounts.

6. Defendants contend that the court erred in awarding judgment to HSI on the promissory note on Count 7.

Under OCGA § 13-1-11 (a) (3), obligations to pay attorney fees upon any note shall be valid and enforceable if, among other things, the holder shall notify in writing the maker or party sought to be held liable that the provisions relative to payment of attorney fees in addition to the principal and interest shall be enforced and that such maker or party has ten days from the receipt of such notice to pay the principal and interest without the attorney fees. Defendants were given such notice in the complaint.

Page, Sevy, and Henderson argue that as a result of the grant of the temporary restraining order and the receivership appointment, Page and PSH were deprived of their right to have ten days to cure the default. The argument fails. If PSH had sufficient funds to pay the sums due under the promissory note or other monthly collections, it could have applied to the court or receiver for the transfer of such funds from PSH to HSI. This was not done.

Page, Sevy, and Henderson also argue that laches bars HSI’s right to relief under the promissory note, because it did not act immediately when PSH first failed to remit funds pursuant to the Agreement of Resolution. PSH argues that promissory estoppel precludes HSI from enforcing the promissory note because it acted too quickly on PSH’s default. Both arguments are without merit. A plea of laches cannot be sustained unless facts are alleged to show prejudice to the defendant or that the ascertainment of the truth is made more difficult by delay on the part of plaintiff to immediately seek relief. Palmer v. Tomlinson, 217 Ga. 399 (2) (122 SE2d 578) (1961). No facts have been produced to show either result. PSH’s promissory estoppel argument is based on the fact that it informed HSI that it was not generating sufficient cash flow to make the monthly installment payments on the note before it was executed, and HSI stated that “ ‘if there is a problem in the future, let’s address it at that time.’ ” This did not constitute any sort of promise by HSI not to enforce the promissory note after PSH altogether stopped making monthly installment payments and remitting sums owed on current monthly collections.

The court did err in awarding HSI $97,390.73 in unpaid principal and $10,614.38 in unpaid interest on the promissory note (total $108,005.11). The monthly payments on the note were $20,363.36, the last payment made was in December 1990, and the final payment due was in May 1991. Consequently, HSI was entitled to an award of the five monthly payments from January through May 1991 in the cumulative total sum of $101,816.80. HSI has provided no basis for any alternative calculation.

7. Page and PSH contend that the court erred in awarding judgment on Count 8 for professional malpractice.

Page’s admissions to the State Disciplinary Board establish his violations of Standards 63 and 65 (A) of State Bar Rule 4-102 by failing to account to HSI for funds of HSI coming into Page’s possession and that he failed to remit HSI’s funds to it. This establishes both a breach of duty by Page in his capacity as a lawyer to HSI as his client and a loss to HSI proximately caused by the breach. Compare Tante v. Herring, 264 Ga. 694, 695 (1) (453 SE2d 686) (1994) (no evidence that attorney’s tortious conduct had any effect on his performance of legal services under his agreement with clients); Hendricks v. Davis, 196 Ga. App. 286, 287 (2) (395 SE2d 632) (1990) (no evidence that alleged malpractice proximately caused client’s loss; violation of the Code of Professional Responsibility alone cannot support an action seeking money damages).

We reject Page’s argument that HSI is chargeable with contributory negligence, in that it monitored PSH’s collection receipts through a computer network to which both HSI and PSH were linked. HSI’s professional malpractice claim against Page is grounded upon wilful breach of duty and not negligence.

PSH disputes the existence of an attorney-client relationship between it and HSI, but in the Agreement of Resolution, PSH acknowledged that it was being employed to render legal services to HSI. See generally Roberts v. Langdale, 185 Ga. App. 122, 123 (1) (363 SE2d 591) (1987).

8. Sevy and Henderson contend that the court erred in granting summary judgment to HSI on Count 5, in which HSI sought to hold Sevy and Henderson jointly and severally liable for the professional acts and torts of Page by virtue of their practice of law with him.

The court granted summary judgment to HSI on this count under First Bank & Trust Co. v. Zagoria, 250 Ga. 844, 847 (302 SE2d 674) (1983). In Zagoria, the court, making no distinction between partnerships and professional corporations, held that when a lawyer holds himself out as a member of a law firm, the lawyer will be liable not only for his own professional misdeeds but also for those of the other members of his firm. The evidence without conflict shows that Sevy and Henderson were minority shareholders employed by PSH for a salary without any right to receive a share of the profits, that they did not have control over any PSH trust accounts, and that they did not have any significant contacts or dealings with HSI. It is also uncontroverted that they held themselves out as members of the law firm and, as a matter of law, Page’s failure to remit the subject funds to HSI constituted a professional misdeed. For the latter reasons, Zagoria is applicable, and Sevy and Henderson are liable.

Decided July 11, 1995

Reconsideration denied July 31, 1995

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, R. Michael Ethridge, for Page.

Cauthorn & Phillips, Thomas E. Cauthorn III, B. Wayne Phillips, for HCI Financial Services, Inc.

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Stacey L. Ferris-Smith, for Page, Sevy & Henderson, P.C.

Smith, Gambrell & Russell, David A. Handley, Margaret M. Leveille, for Henderson.

Sevy and Henderson’s challenge to the constitutionality of the Zagoria decision is beyond our jurisdiction.

9. PSH contends that the court erred in granting HSI’s motion for summary judgment as to Counts 3 and 5 because the receivership status of PSH renders the corporation a non-entity.

“The general rule is that the appointment of a receiver does not abate a pending suit against an insolvent [debtor]. [Cits.]” Shaw v. Caldwell, 229 Ga. 87, 91-92 (2) (189 SE2d 684) (1972); compare Short v. State of Ga., 235 Ga. 394 (219 SE2d 728) (1975). PSH has asserted no facts which take this case outside the general rule.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: Blackburn, Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    A95A0564.
    LOCKETT v. STATE OF GEORGIA.
    (460 SE2d 857)
   Blackburn, Judge.

Ruby Lockett appeals from the order of the superior court granting the State of Georgia forfeiture of her interest in a parcel of land known as the Dixon Road property and a pickup truck. We determine that Lockett does not have standing to contest the forfeiture as she failed to demonstrate an ownership interest in the land or the truck as recognized by Georgia’s forfeiture statute. Hill v. State, 178 Ga. App. 563 (343 SE2d 776) (1986) (claimant in forfeiture action has burden to demonstrate ownership interest in property).

The record reflects that the State filed its complaint for forfeiture on September 9, 1992. Lockett filed a motion to dismiss and an answer on September 25, 1992. In contravention of the forfeiture statute, Lockett’s answer was unverified, although on May 29, 1993, several months after the hearing, she filed a verification. In it Lockett averred that she inherited the Dixon Road property but offered no legal documentation of her interest. Similarly, Lockett averred that the truck was a gift from her son and that title was registered in her name, but she provided no documentary evidence of the title. The State responded to Lockett’s motion to dismiss, asserting that she had not adequately evidenced her claim to ownership. Subsequently, on October 8, 1992, a hearing on the forfeiture was held as required by OCGA § 16-13-49 (o) (5). Lockett submitted no evidence at the hearing.

In order to contest a forfeiture, a party must be an “owner” or “interest holder.” See OCGA § 16-13-49 (n) (3) and (o) (3). OCGA § 16-13-49 (a) (6) defines an “interest holder” as a secured party under OCGA § 11-9-105 or as the beneficiary of a perfected encumbrance pertaining to an interest of the party. There is no evidence in the record nor does Lockett claim to be an “interest holder” in the forfeited property. In order to have standing to contest the forfeiture, Lockett must demonstrate that she is an “owner” of the forfeited property as that term is outlined in the statute. OCGA § 16-13-49 (a) (7) defines an “owner” as a person “who has an interest in property and is in compliance with any statute requiring its recordation or reflection in the public records in order to perfect the interest against a bona fide purchaser for value.”

Apart from Lockett’s unverified statements, there was no evidence supporting her claim of ownership presented before or during the hearing. Consequently, we find Lockett did not meet her burden of demonstrating ownership and is without standing to contest the forfeiture.

Pretermitting the issues of (1) whether Lockett’s sworn statements alone were sufficient to meet her burden as to her ownership of the Dixon Road property or the truck and (2) whether failure to verify an answer in a forfeiture action is an amendable defect, this late-filed amendment is insufficient to demonstrate Lockett’s standing. As noted by this court previously, the legislature has outlined very specific requirements for filing a claim in a forfeiture action so as to “assure some degree of legitimacy to the claim and to elicit supportive factual information so as to expedite the proceeding.” State v. Cannon, 214 Ga. App. 897 (449 SE2d 519) (1994). Permitting those who contest a forfeiture to delay substantiating their claim of ownership until months after the statutory hearing has concluded contradicts the very purpose of this statutory scheme and should not be permitted.

Because Lockett has not properly demonstrated her standing to contest the forfeiture, we affirm the decision of the lower court.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson and Ruffin, JJ., concur. McMurray, P. J., dissents. Smith, J., not participating.

McMurray, Presiding Judge,

dissenting.

I am compelled to dissent as I cannot go along with the majority’s conclusion that claimant Ruby Lockett does not have an interest in certain property seized by the State, i.e., a parcel of land known as the Dixon Road property (comprising over 101 acres) and a “Mazda pick-up truck.” In fact, an examination of the forfeiture hearing transcript reveals an admission by the State’s sole witness that Ruby Lockett has an interest in the Dixon Road property. With this aside, I believe that the State failed to establish a prima facie case for forfeiture of Ruby Lockett’s property.

To begin, I believe the majority incorrectly states that Ruby Lockett failed to demonstrate standing to contest forfeiture of the Dixon Road property and the “Mazda pick-up truck.” Ruby Lockett filed an answer claiming an interest in this property, and she later verified her answer, deposing that her claims to ownership of the Dixon Road property and the “Mazda pick-up truck” were true and correct. This verification related back to the time when Ruby Lockett’s answer was filed, OCGA § 9-11-15 (c), and thus placed the burden upon the State (if standing really had been an issue) to come forward with evidence at the forfeiture hearing that Ruby Lockett had no interest in the Dixon Road property and the “Mazda pick-up truck.” See Smith v. Maner, 171 Ga. App. 363 (319 SE2d 532). However, the record shows that standing was not an issue at the forfeiture hearing. In fact, the State not only did not contest or challenge Lockett’s standing (i.e., claims of ownership) at the forfeiture hearing, it even presented testimony supporting Lockett’s claim that she inherited an interest in the Dixon Road property. Specifically, Narcotics Agent George W. Haliburton, Jr., of the Crawford County Sheriff’s Department testified that “I feel [Ruby Lockett] has an interest in the [Dixon Road] property because she lives there ...” and because public records indicate that Lockett’s deceased grandmother was the last person to record title to the Dixon Road property. (Narcotics Agent Haliburton indicated that this deed was recorded in 1923.) Under these circumstances, I cannot go along with the majority in side-stepping the lack of evidence authorizing the State’s seizure of Lockett’s property.

Decided July 14, 1995

Reconsideration denied July 31, 1995.

Walker L. Chandler, for appellant.

“In a condemnation action the state must first carry its burden of proof by a preponderance of the evidence to establish a prima facie case for the forfeiture of the property. Bloodworth v. State (of Ga.), 185 Ga. App. 880 (336 SE2d 324) (1988).” State of Ga. v. Banks, 215 Ga. App. 828, 831 (2), 832 (452 SE2d 533). To this extent, Georgia’s forfeiture statute specifies that the State must present evidence at the forfeiture hearing establishing “probable cause to believe that: (A) [t]he person has engaged in conduct giving rise to forfeiture; (B) [t]he property was acquired by the person during the period of the conduct giving rise to forfeiture or within a reasonable time after the period; and (C) [t]here was no likely source for the property other than the conduct giving rise to forfeiture.” OCGA § 16-13-49 (s) (3). And contrary to the State’s argument, the burden to present at least some evidence establishing the elements prescribed by this Code subsection is not eased by the more general language in subsections (2) and (6) of OCGA § 16-13-49 (d). Forfeiture is a special statutory proceeding, and as such, courts “are required to strictly construe the forfeiture statute. See Hill v. State, 178 Ga. App. 563, 565 (2) (343 SE2d 776) (1986); Lang v. State, 168 Ga. App. 693, 695 (4) (310 SE2d 276) (1983).” State v. Henderson, 263 Ga. 508 (436 SE2d 209).

In the case sub judice, the State presented no proof that the Dixon Road property was acquired during the period of the conduct giving rise to this forfeiture proceeding or that the conduct giving rise to the forfeiture was the likely source for the Dixon Road property. In fact, the testimony of the State’s only witness, Narcotics Agent Haliburton, indicates that the Dixon Road property was acquired by inheritance, not via the gains of illegal drug activity. Further, Agent Haliburton did not give any indication that Ruby Lockett (or any other person) purchased the “Mazda pick-up truck” with proceeds of the illegal drug transactions which gave rise to this forfeiture proceeding. Under these circumstances, I believe that the State failed to establish a prima facie case for forfeiture of Ruby Lockett’s property. I would therefore reverse that part of the trial court’s order granting the State’s motion for judgment of forfeiture with regard to any interest Ruby Lockett may have in the Dixon Road property and the “Mazda pick-up truck.”

Charles H. Weston, District Attorney, Kirby H. Wincey, Jr., Assistant District Attorney, for appellee.

       The need to comply with the claim and answer requirements of OCGA § 16-13-49 have been strictly construed in other contexts. See State v. Alford, 264 Ga. 243 (444 SE2d 76) (1994) and State v. Cannon, 214 Ga. App. 897 (449 SE2d 519) (1994).


author: Ruffin, Judge.

text:
    A95A0637.
    WESTMINSTER GROUP, INC. v. PERIMETER 400 PARTNERS et al.
    (460 SE2d 827)
   Ruffin, Judge.

Westminster Group, Inc. (“Westminster”), a real estate broker, sued Perimeter 400 Partners (“Perimeter”) for commissions it alleged were due under a 1984 commission agreement. The commission agreement concerned the lease of office space to a tenant in 1984. The 1984 lease had been renewed, and the renewal was due to expire on December 31, 1996. The same tenant signed another lease in 1993. Westminster seeks commissions from the 1993 lease on grounds that it was a renewal of the 1984 lease. The parties filed cross-motions for summary judgment and the trial court granted Perimeter’s motion. Westminster appeals this ruling as well as the denial of its motion.

At the outset we note Westminster’s total failure to number its arguments to correspond with its nine enumerations of error. This violation of Court of Appeals Rule 27 (c) (1) as well as Westminster’s failure to distinguish and separately support each alleged error with argument and authority as required by the rule forces us to engage in the vexing exercise of sifting through the brief attempting to ferret out and align the various arguments and enumerations of error. Such places an unnecessary burden on this court.

Turning to the merits of the case, the record shows that the first sentence of the agreement is part of a printed form and was drafted by Perimeter. It reads as follows: “This agreement is limited to a term of ten (10) years or the original lease term plus all renewal options contained therein if for a term longer than ten (10) years.” At this point in the agreement, by the word “years,” is a handwritten footnote inserted by Westminster which reads “(11 years, 9 months).” The second sentence of the agreement is a typed insertion drafted by Westminster which states, “[commissions will be paid on any renewal terms or expansion terms not set forth in the original terms of the base lease but occurring within the original term or any expansion or renewal thereof.”

The trial court ruled that under the plain, unambiguous language of the agreement, Westminster was not entitled to commissions from the 1993 lease unless that lease expired on or before the eleven-year, nine-month term limitation set forth in the footnote of sentence one (by December 31, 1996). Because the 1993 lease expires in 2022, the court ruled no commissions were due.

1. Westminster argues that because the language of the agreement is ambiguous and capable of more than one interpretation, summary judgment was inappropriate. Specifically, it argues the court erred in concluding that commissions would be due for “the original term or any renewal or expansion thereof” as referenced in the typed insertion only if the renewal expired prior to the eleven-year, nine-month term referenced in sentence one. On the other hand, Westminster argues that because there is no dispute about the parties’ intent under the agreement that it would be entitled to commissions for any renewal commenced within the eleven-year, nine-month term, it is entitled as a matter of law to a commission from the 1993 lease. Accordingly, it contends the trial court also erred in denying its motion for summary judgment.

We agree that the agreement is ambiguous. The first sentence appears to limit the time for which commissions must be paid to a maximum term of eleven years, nine months from the commencement of the lease. Meanwhile, the typewritten insertion appears to provide for the payment of commissions for as long as the 1984 lease continued to be renewed, provided that the renewal commenced during the original lease term or during a renewal of the original term. Because the conflicting language results in an ambiguity with respect to the length of time commissions were payable, the trial court should have applied the rules of construction to resolve the conflict.

“The intent of the parties is foremost in the construction of contracts. OCGA § 13-2-3. There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2). . . .” (Citation and punctuation omitted.) Robert Half of Atlanta v. Diversitech Corp., 208 Ga. App. 427, 428 (430 SE2d 800) (1993).

One such rule of construction provides that “[a] typewritten provision must govern over a conflicting printed one.” (Citations omitted.) Quinlan v. Bell, 189 Ga. App. 8, 9 (374 SE2d 823) (1988). Similarly, provisions which are specially inserted by a party take precedence over the printed provision of a form contract. Atlanta Baggage & Cab Co. v. Loftin, 88 Ga. App. 98 (1) (76 SE2d 92) (1953).

Under these rules, the second typewritten sentence which Westminster inserted would.govern the first printed sentence such that commissions would be payable on any “renewal” “occurring” within a renewal of the original term, even if the renewal extended past the eleven-year, nine-month limitation. But keeping in mind that the fundamental rule in construing a contract is to ascertain the intent of the parties, we find it appropriate to consider parol evidence to confirm this construction. See Tidwell v. Carroll Builders, 251 Ga. 415 (1) (306 SE2d 279) (1983). (When a contract contains an ambiguity, illuminating parties’ intent via parol evidence is appropriate.)

Examination of the testimony of the two individuals who prepared the leases confirms that the parties did not intend to confine the payment of commissions to renewals expiring within the eleven-year, nine-month period. Arnold Johns, the individual responsible for leasing office space on behalf of Perimeter’s successor and who negotiated the terms of the commission agreement, testified that the parties intended for commissions to be paid so long as the lease was continually renewed. John Foley, the individual who negotiated the terms of the agreement on behalf of Westminster’s predecessor, testified that the second sentence in the agreement was added in the event that the tenant Westminster procured renewed its lease beyond the eleven-year, nine-month period; the sentence ensured that if the tenant renewed the lease beyond the eleven-year, nine-month period, commissions would be paid.

Based on this evidence illuminating the parties’ intent and the rules of contract construction, we find the trial court erred in ruling that, as a matter of law, Westminster is not entitled to commissions from the 1993 lease because the lease did not expire on or before the eleven-year, nine-month period. Accordingly, we reverse the grant of summary judgment to Perimeter.

2. We must still address whether Westminster was entitled to the commissions it sought as a matter of law and whether the trial court therefore erred in denying its motion for summary judgment. Perimeter argues Westminster is not entitled to the commission because the 1993 lease was not a “renewal” “occurring” within the original term as required by the second sentence.

“In construing a contract words generally bear their usual and common signification. [Cits.] If the words used are clear and unambiguous they are to be taken and understood in their plain, ordinary, and popular sense. [Cits.] Dictionaries supply the plain, ordinary and popular sense. [Cit.]” Henderson v. Henderson, 152 Ga. App. 846, 847 (1) (264 SE2d 299) (1979). Webster’s Collegiate Dictionary (10th ed.) defines “occur” as “1. to be found or met with: appear 2. to come into existence. ...” Accordingly, “occurring” as used in this agreement meant coming into existence during the original term or any renewal or expansion thereof, i.e., coming into existence before December 31, 1996, the day the last renewal expired. The trial court erred in ruling otherwise.

3. Having granted Perimeter’s motion for summary judgment, the trial court did not address whether the 1993 lease was a renewal or an entirely new lease as Perimeter argues. This we must do in order to determine whether Westminster is entitled to the commission it seeks and whether the trial court erred in denying its motion for summary judgment.

In Bd. of Regents &c. v. A. B. & E., 182 Ga. App. 671 (357 SE2d 100) (1987), the dispute between the parties involved an interpretation of an agreement in which the Regents agreed to pay commissions on tenant leases including “renewals and extensions” of the initial lease. We held that “[i]n deciding whether a succeeding lease is substantially a renewal of a preceding lease or altogether a new lease, the determination can be based on whether the succeeding lease employs drastically different terms, not simply somewhat different considerations, i.e., is the lessee occupying substantially the same space under substantially the same terms? If the succeeding lease employs substantially the same terms as the preceding lease, it may be considered a renewal even though technically a ‘new’ lease. [Cit.]” (Emphasis supplied.) Id. at 674.

When the 1984 lease is compared with the 1993 lease, it becomes obvious that the 1993 lease covers the same buildings and office space. While the 1993 lease provided for some additional expansion space, the commission agreement specifically contemplates expansion of the 1984 lease and provided for payment of commissions on any such expansion. Thus, under the 1993 lease, the tenant is occupying substantially the same space. Perimeter points to no other glaring difference in the terms of the two leases except a reduced rental rate in the 1993 lease. Although Perimeter fails to specifically reference where in the record the new rates are found, reviewing the rate schedules, we were able to locate does not reveal a “drastically” different rate schedule which would create an issue of fact as to whether the 1993 lease was a renewal of the 1984 lease under the Bd. of Regents standard.

4. Westminster contends the trial court erred in failing to award the commissions and prejudgment interest it sought on summary judgment. But Perimeter argues there is an issue of fact as to how to calculate the amount of any commissions which might be due. Likewise, Perimeter argues that prejudgment interest is unauthorized because the amount of the claim is not “fixed” given the dispute on how it should be calculated. The language at issue reads as follows: “All commissions shall be calculated using the rates applicable for the period as if the renewal option(s) were a part of the original lease.” Perimeter argues that the provision clearly refers to the percentage rate (two percent) that is to be used in the calculation of commissions and that the 1993 schedule controls the calculation. In contrast, Westminster argues the provision relates to the rental schedule to be applied and that the higher 1984 rates control. We agree this language is ambiguous and therefore remand to the trial court for a ruling on the amount of commissions due under the provision as well as whether Westminster is entitled to prejudgment interest.

Judgment reversed and remanded with direction.

Beasley, C. J., and Pope, P. J., concur.

Decided July 13, 1995

Reconsiderations denied July 31, 1995

Arnall, Golden & Gregory, Ann S. Infinger, James A. Gober, for appellant.

Sutherland, Asbill & Brennan, Alfred A. Lindseth, Rocco E. Testani, for appellees.


author: Ruffin, Judge. Beasley, Chief Judge,

text:
    A95A0642.
    SOUTHERN LAND & CATTLE COMPANY v. BROCK et al.
    (460 SE2d 843)
   Ruffin, Judge.

We granted the application of Southern Land & Cattle Company (“Southern”) for a discretionary appeal from the trial court’s order dismissing its garnishment against Marie Brock’s employer. Southern filed to garnish to satisfy its default judgment against Marie and Perry Brock, the defendants in fi. fa. It is the second such appearance of this case before us. See Southern Land &c. Co. v. Brock, 213 Ga. App. 3 (443 SE2d 647) (1994).

On July 16, 1984, the Brocks, as buyers, entered into an installment land sales contract with Southern, as seller, to purchase a parcel of land. The Brocks made some installment payments but defaulted on later payments, and Southern sued for the breach. In its complaint, Southern sought damages for the breach and, in addition, requested a special lien on the property under OCGA § 44-14-210. The Brocks failed to answer the complaint, and on June 13, 1986, the court awarded Southern a default judgment.

Southern subsequently repossessed the land and sold it to a third party. When that party defaulted on payments to Southern, it repossessed the land again and sold it to another party. It is undisputed that the total amount received by Southern from both sales was insufficient to satisfy the amount of the judgment against the Brocks.

On November 3, 1992, Southern filed a garnishment against Marie Brock’s employer to collect the remaining balance of the judgment. Brock traversed the garnishment, contending that under OCGA § 44-14-210 Southern had an election of remedies and that because it elected to repossess and subsequently sell the property, it could not also collect on the judgment. The trial court agreed with Brock and dismissed the garnishment. Because we do not find that OCGA § 44-14-210 precludes Southern from seeking other remedies to satisfy its judgment, we reverse.

OCGA § 44-14-210 (a) generally provides for the levy and sale of property where the defendant in fi. fa. has an interest in the property but does not hold legal title to it. See Hirsch v. Northwestern Mut. Life Ins. Co., 191 Ga. 524 (3) (13 SE2d 165) (1941). But contrary to the trial court’s order, Southern is not limited to satisfying its judgment under OCGA § 44-14-210. That section provides only one of several methods under which a party may attempt to satisfy its judgment resulting from a breach of the agreement where the buyers defaulted on installment payments under an installment land sales contract. See generally 7 Powell on Real Property, Par. 938.24 (rev. ed. 1995). The language of OCGA § 44-14-210 (a) is permissive and in pertinent part provides that if the holder of legal title, in this case Southern, seeks a levy and sale of the property, then “the proceeds shall be applied to the payment of the judgment. . . .” (Emphasis supplied.) The statutory language is clear that when such a party seeks this remedy, it is not selecting the exclusive method by which it can satisfy its judgment but is merely availing itself of a remedy that will provide payment toward the judgment balance. There is nothing in the statute that precludes a judgment creditor from seeking further relief if its judgment is not satisfied after application of the sale proceeds. See generally Oliver v. Slack, 192 Ga. 7 (14 SE2d 593) (1941).

Furthermore, Brock’s reliance on Couch v. Crane, 142 Ga. 22 (82 SE 459) (1914), is misplaced. The transaction in Couch is similar to the instant case. In the complaint, however, the seller sought to have the property sold to pay the balance of the purchase price and in addition prayed for judgment against the purchaser for the unpaid purchase money. The court found that those two remedies were inconsistent and could not be pursued in the same action. Id. at 27. It is clear that to have awarded both the remedies prayed for in Couch would result in a double recovery by the plaintiff; she would have recovered the full price of the property after the sale and would also be awarded a judgment for the unpaid purchase money. In this case, however, Southern is seeking only to satisfy the unpaid balance of the judgment, the amount to which both parties stipulated. Accordingly, the trial court erred in granting Brock’s traverse and in dismissing the garnishment.

Judgment reversed.

Pope, P. J., Birdsong, P. J., Andrews, Johnson and Smith, JJ., concur in the judgment only. Beasley, C. J., and McMurray, P. J., dissent. Blackburn, J., not participating.

Beasley, Chief Judge,

dissenting.

I respectfully dissent. Although Southern invoked OCGA § 44-14-210, it did not follow the statute. OCGA § 44-14-210 (a) requires the seller of real property by an installment contract, who wishes to collect the purchase money when the buyer defaults after having paid some of the purchase price, to follow certain steps. The statute specifies the procedure: 1) reduce the purchase money debt to a judgment; 2) execute a quitclaim deed to the buyer; 3) record the deed; 4) levy upon and sell the property as the debtor’s, after the levying officer first gives notice of the levy and time of sale to the vendor and the defendant in fi. fa.; and 5) apply eligible proceeds of sale to the judgment.

Although in the suit on the note Southern sought a “special lien” under OCGA § 44-14-210, it skirted the steps set out in that Code section. It had the title to the land from the beginning, and it was never conveyed to the Brocks. It is true that under the contract the buyer could request a warranty deed when the payments on the principal reached $1,200, but that never occurred. Thus, when the Brocks relinquished possession, Southern had its property back totally, both title and possession. It also had the amounts already paid on the installment land contract. When it obtained a judgment for the balance of the note, it was required to deed the property to the Brocks because it then had a judgment instead of a purchase money debt.

Southern did not “make and execute ... a quitclaim conveyance to the . . . property,” and Southern of course did not “file and have the quitclaim conveyance recorded in the clerk’s office.” OCGA § 44-14-210 (a). Had Southern done so, the property would then have been titled to the Brocks, and Southern could have “levied upon [it] and sold [it] as other property of the [Brocks].” Id. The proceeds would be applied to payment of the judgment.

To use this procedure to satisfy its money judgment, Southern was required to assure “notice of the levy and time of sale ... to the defendant in fi. fa.,” i.e., the Brocks. Southern did not do this either, so they had no opportunity to protect their interests by ensuring that the sale brought a reasonable price.

Southern wants its cake (the land, which it always had title to and which it regained possession of) and wants to eat it, too (obtain money for it by way of garnishing on a judgment based on the defaulted promissory note). That it cannot have, as stated in Couch v. Crane, 142 Ga. 22, 26-28 (3, 6) (82 SE 459) (1914):

“A vendor of real estate, who sells it on credit, delivering possession to the vendee, taking notes, and giving bond to make title when the purchase-money is paid, may either sue for the land upon the failure to pay the note or any of them [cit.]; or, upon failure of the purchaser to pay the notes as they mature, the vendor may sue on them to judgment, file a deed and have it recorded, and sell the land as provided by law in such cases. Civil Code (1910), § 6037. . . . Where a vendor sues on his title and recovers the land from the vendee, a rescission ensues by operation of law; for he can not rightfully retain both land and purchase-money. [Cit.] Rescission involves restoration to the original status. ...”

Decided July 14, 1995

Reconsideration denied July 31, 1995

Reagan W. Dean, for appellant.

Ellis & Easterlin, George R. Ellis, Jr., for appellees.

Vendor Southern did not have to sue on its title to recover the land from the vendee Brocks; they simply left, and Southern regained possession. That constituted rescission of the Installment Land Sale Contract. If Southern had resold the property to a third party for a greater sum than it was sold to the Brocks, the Brocks certainly would not be entitled to the difference. The property was never theirs.

The majority attempts to distinguish Couch v. Crane, supra, on the ground that it prevented a recovery of greater than the contract amount, a circumstance not appearing here, but that distinction does not distance Couch’s law from this case.

The contract itself included certain remedies of Southern in the event of default. It provides that the vendor could either regain the property or “in lieu” thereof, get a judgment on the unpaid balance of the purchase price.

The language of the statute makes its processes mandatory. See Campbell v. Gormley, 184 Ga. 647, 650 (2) (192 SE 430) (1937). The reference to 7 Powell on Real Property, Par. 938.24 (rev. ed. 1995) is not persuasive; no Georgia case has ever stated that the law of this state does not require compliance with OCGA § 44-14-210. It is the prescribed method under Georgia law to bring about a sale of the property to be applied to the debt and then to pursue a deficiency.

The trial court was correct. Southern had no right to garnish Brock’s wages because it did not have any right to pursue a deficiency which was not satisfied by the two non-statutory sales.

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

       And OCGA § 44-14-321, although that is not applicable.

       Now OCGA § 44-14-210.


author: Smith, Judge.

text:
    A94A0897.
    CITIZENS BANK & TRUST COMPANY v. SAUNDERS, STUCKEY & MULLIS, INC. et al.
    (459 SE2d 191)
   Smith, Judge.

This court entered a judgment in this case reversing the trial court’s judgment. Citizens Bank & Trust Co. v. Saunders, Stuckey, & Mullis, Inc., 214 Ga. App. 333 (447 SE2d 632) (1994). In Saunders, Stuckey & Mullis, Inc. v. Citizens Bank & Trust Co., 265 Ga. 453 (458 SE2d 337), the Supreme Court reversed this court’s decision. Accordingly, the prior judgment of this court is vacated, the judgment of the Supreme Court is made the judgment of this court, and the judgment of the trial court is affirmed.

Decided August 1, 1995.

William S. Stone, for appellant.

Weissman, Nowack, Curry & Zaleon, Linda B. Foster, Frances R. Mathis, for appellees.

Judgment affirmed.

McMurray, P. J., and Pope, P. J., concur.


text:
    A95A1127.
    WAUGH v. THE STATE.
    (460 SE2d 871)
   Smith, Judge.

Eric Duane Waugh was found guilty by a jury on charges of carrying a pistol without a license, OCGA § 16-11-129, and possession of a firearm by a convicted felon, OCGA § 16-11-131. He appeals his conviction following the denial of his motion for new trial.

1. Waugh raises the general grounds, asserting that the evidence presented at trial was sufficient only to raise a suspicion of guilt and not to exclude every other reasonable hypothesis. We do not agree.

The evidence presented at trial showed that Waugh was convicted in 1991 of felony murder. Although he was under 17 at the time, he was tried as an adult and sentenced to life in prison. Physical control and custody of Waugh, however, was vested in the Department of Children & Youth Services until he turned 17. When Waugh turned 17, instead of entering the State correctional system, he was granted an educational reprieve from his sentence that allowed him to attend a private school in South Carolina.

In March 1993, Waugh returned from that school to his home in Douglas County on spring break. On the evening of March 16, 1993, Waugh and two friends, Seth Schuber and Matt Betts, visited the apartment of Schuber’s former girl friend, Brandi Smith, with Schuber driving them in a car that belonged to his father. They had been drinking beer and carried several beers with them into Smith’s apartment. When they arrived, Brandi’s date, Jason King, was present. Although the visit began pleasantly, Schuber and Smith soon began arguing. Schuber threw a beer at Smith, the argument escalated, and the guests decided to leave. The dispute carried over into the parking lot and soon included King and Waugh.

There is no dispute that a pistol was produced by either Schuber or Waugh at some point in the parking lot. It is clear that the gun was one that Schuber’s father kept in the car. According to Waugh, Schuber had the gun in the back of his waistband when they went up to Smith’s apartment. Waugh testified that Schuber “pulled” the gun from his waistband in the parking lot and that because it appeared that Schuber was preparing to fight with King, he intervened to prevent trouble. He took Schuber by the arm, relieved him of the gun, and tossed it in the car. Waugh’s version of the incident was corroborated by Betts and Schuber. Smith and King, however, testified they saw the gun in Waugh’s waistband earlier while still in Smith’s apartment. They stated that while leaning against the wall, Waugh lifted his shirt several times to reveal the gun, which was tucked into his own waistband.

Waugh, who was 18 years old at the time of the incident, was arrested about a week later. After receiving Miranda warnings, he agreed to an interview, which was tape recorded. A Jackson/Denno hearing was held to determine the admissibility of the tape recorded interview. The trial court concluded that statements made by Waugh were freely and voluntarily given, and the tape was subsequently played for the jury. During the interview, Waugh was asked by Detective Sergeant Jeff Hayes of the Douglas County Sheriff’s Department whether he had possessed a firearm on the date in question. Waugh admitted that he did; he said it did not belong to him but conceded that he was “holding it for someone.”

We find this evidence sufficient to authorize the jury to find Waugh, a convicted felon, guilty of possessing a firearm under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Given that OCGA § 16-11-129 (b) (1) provides that no license to carry a pistol shall be issued to any person under 21 years of age, the evidence was also sufficient to authorize the jury to find Waugh guilty of carrying a pistol without a license.

2. Waugh asserts error surrounding the introduction of evidence concerning his prior felony conviction. He concedes that proving the prior conviction was a necessary element of the State’s case on one of the charged crimes. He contends, however, that the trial court erred in failing to give the instruction he requested limiting the jury’s consideration of his prior conviction for felony murder. We do not agree.

Waugh repeatedly asked the trial court to give an instruction similar to that recommended in Head v. State, 253 Ga. 429 (322 SE2d 228) (1984), advising the jury that “the only purpose for which they are permitted to receive evidence of prior convictions is relative to the charge of possession. ...” Id. at 432 (3) (d). Head, however, addresses a situation in which a more serious charge is tried with the weapons charge, and the introduction of proof of prior convictions may prejudice the jury’s unbiased consideration of the defendant’s guilt on the more serious charge. The charge recommended in Head instructs the jury not to consider the evidence of prior convictions necessary to prove the weapons charge when determining guilt or innocence on the more serious charge.

In this case, the jury was not asked to determine guilt or innocence on a more serious charge. The trial court correctly concluded that the “limiting” charge requested by Waugh was not applicable or necessary and would confuse the jury.

Waugh argues that the “limiting” charge was necessary because the jury could consider that evidence of Waugh’s conviction impeached his testimony, particularly in light of the trial court’s charge on impeachment. The trial court did give a standard charge on impeachment. Contrary to Waugh’s argument, however, it was not necessarily directed at Waugh’s prior conviction. Defense counsel herself attempted to impeach the witness King by cross-examining him regarding a prior conviction for “fighting.” The trial court properly ruled that this was not a crime involving moral turpitude and could not be used to impeach the witness. Syfrett v. State, 210 Ga. App. 185, 187 (4) (435 SE2d 470) (1993). Since the jury heard defense counsel’s reference to King’s prior conviction, the charge on proper methods of impeachment was necessary. The evidence did not, however, necessitate the “limiting” instruction requested by Waugh. We find no error.

3. Waugh maintains the trial court’s refusal to give his request to charge on justification was reversible error. We do not agree.

The charge requested is taken from Little v. State, 195 Ga. App. 130 (392 SE2d 896) (1990), a case involving possession of a firearm by a convicted felon, in which we held that failure to give such a charge was reversible error. Although Little does not constitute binding precedent because only two judges concurred, the requested charge appears to be a correct statement of the law. In Little, no charge was given on justification, which was the sole defense. In this case, however, the trial court gave a standard charge on justification. It is not necessary to give the exact language of the requested charge if the same principle is fairly covered. Radford v. State, 202 Ga. App. 532, 534 (1) (415 SE2d 34) (1992). Moreover, “justification” was not Waugh’s sole defense; he also claimed he did not actually “possess” the gun.

4. Waugh contends the trial court erred in charging the jury on the definitions of constructive and joint possession. Citing Donaldson v. State, 180 Ga. App. 879 (350 SE2d 849) (1986), and Wilson v. Zant, 249 Ga. 373 (290 SE2d 442) (1982), he argues that actual possession is a necessary element of the crime embodied in OCGA § 16-11-131. Waugh misconstrues these cases. The discussion in Donaldson and Wilson cited by Waugh did not involve OCGA § 16-11-131 but rather the offense of possessing a firearm during the commission of certain felonies, OCGA § 16-11-106. The latter statute states that to be found guilty of the crime, the weapon must be “on or within arm’s reach of [the] person,” OCGA § 16-11-106 (b). In contrast, the statute setting forth the crime with which Waugh was charged, OCGA § 16-11-131 (b), states that a felon who “receives, possesses, or transports any firearm commits a felony.” To enable the jury to consider whether Waugh “possessed” the firearm within the meaning of the statute, the trial court correctly instructed them on the definitions of the various forms of possession.

5. Waugh asserts that by questioning him and other defense witnesses regarding underage drinking, firearms, and other matters, the State impermissibly placed his character in issue and used improper impeachment methods.

With respect to several of the claims of error raised by Waugh in this enumeration, no proper objection was made below, and review of the alleged error is foreclosed. Because this is a court for review and correction of error, we cannot consider objections to evidence different from those raised at trial. Walls v. State, 204 Ga. App. 348, 349 (2) (419 SE2d 344) (1992).

As to those alleged errors properly preserved, “[t]here are numerous instances where the state may properly offer evidence that the defendant has committed prior crimes for a purpose other than to show the defendant is a person of bad character. [Cits.] The fact that such evidence may reflect adversely on the defendant does not place his character ‘in issue’ within the meaning of OCGA § 24-9-20 (b). [Cits.]” Jones v. State, 257 Ga. 753, 759 (1) (c) (363 SE2d 529) (1988). Evidence about Waugh’s educational reprieve was introduced by the State for the purpose of clarifying to the jury Waugh’s status as a still-convicted felon, despite his presence on the streets of Douglas County rather than in the State prison system. It was therefore relevant and admissible. See generally Toth v. State, 213 Ga. App. 247, 250 (4) (444 SE2d 159) (1994). Much of the other evidence challenged by Waugh concerned acts and circumstances surrounding his possession of the gun, and it constituted res gestae. See Dean v. State, 211 Ga. App. 28, 31-32 (4) (438 SE2d 380) (1993).

6. Because direct evidence was introduced that Waugh possessed the gun, was a convicted felon, and had no permit, a charge on circumstantial evidence was not necessary.

7. We have carefully reviewed Waugh’s remaining enumerations of error and have found them to be meritless.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

Decided August 1, 1995.

Jill L. Anderson, Elizabeth A. Geoffroy, for appellant.

David McDade, District Attorney, for appellee.


author: Blackburn, Judge.

text:
    A95A1077.
    A95A1078.
    A95A1079.
    COPELAND v. CONTINENTAL KEWITT et al. WOODARD v. CONTINENTAL KEWITT et al. HAWKINS v. CONTINENTAL KEWITT et al.
    (461 SE2d 277)
   Blackburn, Judge.

L. J. Copeland, Bernard Woodard, and Raymond Hawkins appeal the superior court’s order affirming the decisions of the Appellate Division of the State Board of Workers’ Compensation (Board), denying each appellant’s claim for benefits due to alleged hearing losses. We granted appellants’ applications for discretionary appeal on November 14, 1994, and they subsequently caused the record to be transmitted to this Court where it was docketed on February 10, 1995. On February 14, 1995, appellee, Crown, Cork & Seal/Cigna (CCS) filed a motion to dismiss the appeals in this court and in the trial court under OCGA § 5-6-48 (c) claiming that the appellants unduly delayed transmitting the appellate record. Particularly, CCS asserts that appellants’ failure to timely pay the trial court’s costs caused an unnecessary delay.

1. We first must deny CCS’s motion to dismiss these appeals pursuant to OCGA § 5-6-48 (c).

“No appeal shall be dismissed by the appellate court nor consideration of any error therein refused because of failure of any party to cause the transcript of evidence and proceedings to be filed within the time allowed by law or order of court. . . .” (Emphasis supplied.) OCGA § 5-6-48 (c). Rather, the power to make such dismissals is in the trial court. Id. Thus lacking the authority to dismiss an appeal for failure to file a transcript timely, we must deny the instant motion to dismiss. See Beavers v. Gilstrap, 210 Ga. App. 46, 47 (435 SE2d 267) (1993).

Additionally, we conclude that once the case was docketed in this court, the trial court lost its jurisdiction to act on the motion. Accordingly, its filing is a nullity. See Ovestco Corp. v. Bowen, 216 Ga. App. 121, 122 (453 SE2d 94) (1995); see also Turner v. Taylor, 179 Ga. App. 574 (1) (346 SE2d 920) (1986).

2. Appellants first enumerate that the trial court erred in failing to find that the administrative law judge (ALJ) acted ultra vires in considering the deposition of a CCS expert, Dr. Sean D. Peppard, in that they were not noticed of its taking and denied an opportunity to confront and cross-examine the deponent as a result.

In workers’ compensation hearings, the admissibility of a deposition is contingent upon satisfaction of the right to notice of the deposition and of the right to be present when the deposition is taken. OCGA §§ 34-9-102 (d) (1); 9-11-30 (b) (1); Ga. Power Co. v. Brown, 169 Ga. App. 45, 47 (311 SE2d 236) (1983). We conclude that error in this regard was here harmless.

The evidence shows that the parties to the underlying consolidated action, appellants and Donald L. Martin, the party deponent, were all given notice of the Board’s rules. Such notice necessarily was inclusive of Board Rule 102 (b) (3) authorizing the parties in cases pending before an ALJ to request that the proceedings be held open before and after the conduct of workers’ compensation hearings. Notwithstanding the foregoing, the appellants neither chose to depose Dr. Peppard nor requested leave of the ALJ to hold the proceedings open for the purpose of allowing appellants an opportunity to participate in taking the deposition before or after the hearing. Moreover, OCGA § 34-9-102 (e) (2) authorizes parties introducing a medical report before an ALJ to supplement the same by the testimony of the expert who has signed the report. Additionally, the substance of the complained deposition was not inconsistent with Dr. Peppard’s medical report, a document which was received in evidence without objection pursuant to OCGA § 34-9-102 (e), and the appellants otherwise permitted Martin to testify on their behalf in this consolidated case. Accordingly, this enumeration of error is without merit.

3. The appellants also contend that the evidence was insufficient to support the ALJ’s findings that CCS provided noise protection devices in the workplace for the regular use of employees and that such devices were regularly used in accordance with OCGA § 34-9-264 (b) (6) and (7).

“The claimant in a workers’ compensation proceeding has the burden of proof to show that his injury is compensable. This tenet embodies the basic precept of [OCGA § 24-4-1] which states that the burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential.” (Citations and punctuation omitted.) Holt Svc. Co. v. Modlin, 163 Ga. App. 283, 285 (293 SE2d 741) (1982). In order to meet the threshold requirements of a compensable hearing loss, an employee must show an exposure to harmful noise, a sound greater than 90 decibels, A scale, for at least 90 days. OCGA § 34-9-264 (a) (1), (b) (7). OCGA § 34-9-264 (b) (6) provides employers with an affirmative defense to an otherwise compensable exposure to harmful noise by regularly providing protective devices capable of preventing hearing loss occasioned by the harmful noise where the employee works.

Decided August 2, 1995.

Diane M. Zimmerman & Associates, Charles P. Taylor, for appellants.

There is no evidence in the record establishing noise levels in excess of 90 decibels, A scale, at the instant plant after 1987, approximately three years before CCS purchased the plant from Continental Kewitt, Peter Kewitt, Inc. (Continental Kewitt). The medical report prepared by Dr. Peppard, among other things, indicates that the hearing losses sustained by the appellants had stabilized in 1985, more than five years before CCS purchased the plant in which the claimed hearing losses were alleged to have occurred; and that the hearing protection devices provided by CCS, if used, were effective to remove employees from exposure to harmful noise levels. Appellants’ own witness, audiologist Detra Curtis, testified that the hearing protection devices provided by CCS were capable of reducing the harmful noise, if any, below 90 decibels, A scale.

Other evidence of record indicates that CCS provided hearing protection devices to its employees with only occasional exception not exceeding 48 hours, gave emphasis to the need to use hearing protection in monthly employee safety meetings, and regularly audited employees to ensure that such protective equipment was being used. No union grievance was filed against the CCS for failure to provide hearing protection devices. The appellants themselves testified that they consistently used the hearing protection devices provided by CCS. None was disciplined for not having done so. In light of the foregoing, we find that the appellants have not met their burden to establish compensable hearing losses. OCGA § 34-9-264 (a), (b) (6), (7).

We must affirm if there is any evidence supporting the Board’s findings. Buschel v. Kysor/Warren, 213 Ga. App. 91, 95 (444 SE2d 105) (1994). Finding such evidence in the record, we deem this enumeration of error to be without merit and affirm.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

Murphy & Sibley, R. Napier Murphy, Shivers, Johnson & Wilson, Edwin G. Russell, Jr., Laurens C. Lee, Judith A. Hodges, for appellees.

       Our Rules of Court no longer provide for waiver of any objection due to appellants’ failure to timely file the transcript of the evidence and proceedings with this court. While we could exercise our inherent power under Court of Appeals Rule 40 (b) to prevent the issue from becoming moot by dismissing the appeal and remanding the case to the trial court, here we decline to do so in the interests of judicial economy.


text:
    A95A1369.
    PRECISION CARPET CARE, INC. v. REALTY MANAGEMENT CORPORATION.
    (460 SE2d 875)
   Blackburn, Judge.

After an unsuccessful effort to collect a $38,534 default judgment awarded against Lane Company, Inc., in 1991, Precision Carpet Care attempted to seize property in the possession of Realty Management Corporation (RMC) in satisfaction of the judgment. By consent order, execution of the levy was stayed, and RMC posted a $40,000 surety bond. RMC moved to dismiss the levy, submitting affidavit and documentary evidence of its separate corporate identity and the series of stock transfers by which RMC ultimately acquired “the Lane Company” as a trade name. In response, Precision Carpet Care produced the affidavit of its president testifying simply that “the one time president and sole owner of Lane fraudulently transferred the assets and liabilities of Lane Company to Realty Management Company” and “Lane Company and Realty Management Company have the same business identity and customers.” This appeal followed the trial court’s grant of RMC’s motion to dismiss the levy and release its posted surety bond.

Precision Carpet Care contends dismissal of the levy against the assets of RMC was erroneous. It reasserts on appeal that, under the name of “the Lane Company,” RMC conducts the same type of enterprise as had Lane Company, Inc., and further maintains that Lane Company, Inc. fraudulently transferred its assets to RMC to avoid the debt to Precision Carpet Care.

Since the property levied on was not in the possession of Lane Company, Inc., it was Precision Carpet Care’s burden to show that it was subject to levy under the execution. OCGA § 9-13-102. Here the motion to dismiss was supported by the affidavit of George H. Lane III, former president of Lane Company, Inc., and sole shareholder and president of RMC, along with other evidence of a ten-year course of stock transfers, mergers, and corporate restructurings. The evidence shows that by 1987 Lane had no ownership interest in Lane Company, Inc., and RMC never possessed such an interest. Further, RMC conducts business as “the Lane Company” by virtue of Lane’s 1988 purchase of the right to use that trade name.

Thus supported, the motion to dismiss levy became a motion for summary judgment. OCGA § 9-11-12 (c). RMC’s evidence established a prima facie right to have judgment rendered in its favor. To survive the motion, Precision Carpet Care was obliged to produce rebuttal evidence to show the existence of a genuine issue of fact. While we view the evidence in a light most favorable to the party opposing a motion for summary judgment, unsupported conclusionary allegations of fraud and corporate identity are nevertheless insufficient to raise a genuine issue of fact in the face of uncontradicted evidence of RMC’s separate corporate existence. Germaine v. Webster’s Shopping Center, 116 Ga. App. 547 (158 SE2d 682) (1967). Accordingly, the trial court correctly dismissed the levy and released RMC’s bond.

Decided August 2, 1995.

Richard A. Coleman, for appellant.

Morris, Manning & Martin, Frank W. DeBorde, William J. Sheppard, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A95A1619.
    LAWTON v. THE STATE.
    (460 SE2d 878)
   McMurray, Presiding Judge.

Defendant Lawton appeals his conviction of the offenses of criminal attempt to commit armed robbery, possession of a firearm during the attempt to commit certain crimes (i.e., during the attempt to commit an armed robbery, OCGA § 16-11-106), and possession of a firearm by a convicted felon. Held:

1. The first two enumerations of error raise issues as to the sufficiency of the evidence to authorize the conviction for criminal attempt to commit armed robbery and for possession of a firearm during the attempted armed robbery. The evidence viewed in the light most favorable to upholding the jury’s verdict shows that defendant Lawton was the driver of the getaway car and that companions, McNeil and Sheppard, approached the victim with handguns and attempted to obtain money. The victim of the attempted armed robbery was able to observe the tag number of the getaway car as it sped away. The car was registered as defendant’s and he along with McNeil and Sheppard were apprehended as they returned to defendant’s residence a little over two hours after the robbery attempt. Two handguns were found in the car, one of which was matched with shell casings from shots fired during the robbery attempt.

Defendant maintains that the evidence shows no more than his presence at the scene of a crime and that there is no evidence of his participation in the commission of a crime. But this argument disregards a portion of the State’s evidence. Sheppard testified as to conversations in the car as the three drove to the site of the attempted robbery. The three companions discussed going to get some money and, while they were traveling towards a bank, they had no bank account or check. McNeil passed a handgun to Sheppard, moving it between the bucket seats occupied by defendant and Sheppard. Sheppard testified that the three men, including defendant, were in the car when the victim drove up and he was encouraged to “go ahead on,” to rob him. After the attempted armed robbery, defendant drove rapidly from the scene. The jury was authorized to consider the conduct of defendant and his companions before and after the attempted armed robbery and infer defendant’s criminal intent from these circumstances. Hildebrand v. State, 209 Ga. App. 507, 511 (4) (433 SE2d 443). While Sheppard was a less than enthusiastic and articulate witness, his testimony sufficiently demonstrates that between the three individuals in the car there had been stated an explicit purpose and intent to commit an armed robbery, and that defendant had not dissented from that goal. Also, the speed with which defendant drove from the scene supports an inference that such was done to avoid identification. The jury was authorized to convict defendant of criminal attempt to commit armed robbery.

There was also ample evidence of defendant’s guilt of possession of a firearm during the attempt to commit an armed robbery. Defendant maintains that he never had possession of the handguns or even knew they were in the car. But defendant’s knowledge of the guns may be inferred from the referenced evidence. Under a party to the crime theory, defendant was properly convicted even if he never had actual possession of a firearm. OCGA § 16-2-20; Howze v. State, 201 Ga. App. 96, 97 (410 SE2d 323); Perkins v. State, 194 Ga. App. 189, 190 (1) (390 SE2d 273).

The evidence presented at trial was sufficient to authorize a rational trier of fact to determine that defendant was guilty beyond a reasonable doubt of the offenses of criminal attempt to commit armed robbery, possession of a firearm during the attempt to commit certain crimes and possession of a firearm by a convicted felon. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). We thus conclude that the evidence was sufficient to authorize defendant’s conviction of these crimes.

2. “Defendant also enumerates as error the trial court’s refusal to give the ‘two theories’ charge, that is, that where all the facts and circumstances of the case and all reasonable deductions present two equal theories, one of guilt and the other of innocence, then the jury must acquit the accused. However, this court has held that this statement of the law does not accurately state the principle addressed and should never be given. Johnson v. State, 210 Ga. App. 99, 102 (2) (435 SE2d 458).” Matthews v. State, 214 Ga. App. 104, 105 (2) (446 SE2d 790).

Decided August 2, 1995.

Stanley C. House, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1649.
    GENTER v. THE STATE.
    (460 SE2d 879)
    Decided August 2, 1995.

      Al Johnson, for appellant.

      Thomas J. Charron, District Attorney, Debra H. Bernes, Bruce D. Hornbuckle, Nancy I. Jordan, Assistant District Attorneys, for appellee.
   McMurray, Presiding Judge.

Defendant filed this direct appeal after the denial of his motion to suppress. Held:

“Although the defendant obtained a certificate of review from the trial judge, he failed to make an application to this Court for interlocutory review within 10 days after the grant of the certificate. Since an order denying a motion to suppress is not a final judgment (Cody v. State, 116 Ga. App. 331 (157 SE2d 496) (1967)), this [direct] appeal is premature and thus is subject to dismissal for failure to comply with OCGA § 5-6-34 (b). Williams v. State, 148 Ga. App. 176 (251 SE2d 130) (1978).” Holton v. State, 173 Ga. App. 249 (326 SE2d 240). Accordingly, this direct appeal is hereby dismissed.

Appeal dismissed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1826.
    HENDERSON v. THE STATE.
    (460 SE2d 876)
   McMurray, Presiding Judge.

Defendant Henderson appeals his conviction for the offenses of armed robbery and aggravated assault. Held:

1. The first enumeration of error questions the sufficiency of the evidence to authorize the conviction of defendant. Viewing the evidence presented at trial in the light most favorable to upholding the verdict, it shows that defendant robbed a convenience store by threatening the store clerk with a knife. After defendant went behind the counter and closely approached the store clerk, the clerk attempted to restrain defendant by grabbing his wrist and an altercation ensued during which defendant used the knife to cut the store clerk. Defendant then stood over the store clerk and ordered him to “[g]ive me the money.” After taking a quantity of cash from the cash register, defendant fled.

Defendant had been at the convenience store earlier on the evening of the robbery and sold the store clerk a lawn mower. Defendant testified that when he sold the lawn mower, he did not count the money given him by the store clerk until after leaving the store and that upon discovering that it was less than the agreed sum he returned to the store. According to defendant, the store clerk greeted his return with harsh words which escalated into an altercation over the lawn mower. Defendant denied that he had a knife. Defendant testified that after the altercation, the store clerk handed over the additional money for the lawn mower and he left the store.

The store clerk denied that the altercation related to the lawn mower transaction. A customer in the store saw defendant and the store clerk struggling, and that defendant had a knife, before leaving to notify police of the incident.

The conflicts in the testimony presented an issue of credibility for resolution by the jury. Stephens v. State, 264 Ga. 761 (1) (450 SE2d 192); Hall v. State, 201 Ga. App. 626 (1) (411 SE2d 777). The evidence is sufficient to authorize the jury’s determination that defendant was guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Grant v. State, 215 Ga. App. 10, 11-12 (449 SE2d 545).

2. Defendant contends the trial court erred in failing to charge the jury on robbery by intimidation, a lesser included offense of the offense of armed robbery. But no written request for such a charge was submitted to the trial court. “ ‘The failure to instruct on a lesser included crime is not error, regardless of whether the evidence would have authorized or demanded such a charge, in the absence of a written request.’ Walston v. State, 245 Ga. 572, 573 (266 SE2d 185) (1980).” Daniel v. State, 248 Ga. 271, 272 (1) (282 SE2d 314).

3. In his final enumeration of error, defendant contends that the offense of aggravated assault merged into the armed robbery offense as a matter of fact, resulting in the erroneous imposition of a separate sentence for each offense. But this issue was not raised below and no objection was made to the sentences imposed. Thus, the matter was not preserved for appellate review. Hall v. State, 200 Ga. App. 585, 588 (5) (409 SE2d 221); Johncox v. State, 189 Ga. App. 188 (1) (375 SE2d 139); LeGallienne v. State, 180 Ga. App. 108, 111 (4) (348 SE2d 471).

Decided August 2, 1995.

William R. Thompson, Jr., for appellant.

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

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Birdsong, Presiding Judge. Smith, Judge,

text:
    A95A0874.
    GEORGIA RECEIVABLES, INC. v. WILLIAMS.
    (461 SE2d 280)
   Birdsong, Presiding Judge.

Appellant/plaintiff Georgia Receivables, Inc., as assignees, appeals from the sua sponte order of the superior court dismissing appellant’s suit on contract. The superior court concluded that the four-year statute of limitation had expired thereby barring the action. Held:

1. Appellant’s brief contains statements of fact, particularly concerning whether the contract at issue was under seal, which are not supported by evidence of record; factual assertions in briefs not supported by evidence of record cannot be considered on appeal. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223).

2. After concluding that the pro se answer filed by appellee was sufficient to put appellant on notice of appellee’s intent to use the statute of limitation as an affirmative defense, the trial court dismissed appellant’s complaint on the grounds the action was barred by the expiration of the four-year statute of limitation period. A trial court has inherent authority to dismiss sua sponte a complaint in an appropriate case. OCGA § 15-6-9 (8); compare Star Mfg. v. Edenfield, 191 Ga. App. 665, 668 (3) (382 SE2d 706) (trial court directed a verdict sua sponte). Pretermitting whether the record establishes that appellant was not given adequate notice that the trial court was going to dismiss the complaint sua sponte or whether such notice generally is required as a matter of due process is whether this court is required, based on the state of the record, to affirm the dismissal ordered by the trial court. Appellant’s sole contention as to the merits of the trial court’s dismissal of the complaint is that a 20-year statute of limitation controlled, as the contract at issue was under seal. However, the contract is not a part of the record before us on appeal, and there exists no evidence of record from which this court may determine the contents and nature of the contract. “When a portion of the record is not before this court which is necessary for our determination of one or more of the appellate issues raised, an affirmance as to those issues must result.” Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48, 51 (3) (397 SE2d 466); see Lyon v. State, 262 Ga. 247, 249 (4) (416 SE2d 523). Such an affirmance is tantamount to an appellate determination that, as a matter of law, the trial court did not err in dismissing the case on the grounds of expiration of the applicable statute of limitation. We will not reverse a correct ruling of the trial court dismissing a complaint regardless of the reason therefor. See Malin Trucking v. Progressive Cas. Ins. Co., 212 Ga. App. 273 (1) (441 SE2d 684); see also Tony v. Pollard, 248 Ga. 86 (1) (281 SE2d 557). Georgia Receivables v. Cheatham, 216 Ga. App. 656 (455 SE2d 375) and Georgia Receivables v. Maddox, 216 Ga. App. 164 (454 SE2d 541), where the court examined the legal document at issue which was a part of the official record, are distinguishable and not controlling in this case. We do not address the merits of Cheatham, supra, and Maddox, supra, as we have disposed of this cause using a well-settled appellate rule.

3. In view of our holding in Divisions 1 and 2 above, we also conclude that the trial court did not err in denying appellant’s motion for summary judgment. Appellant would not be entitled to summary judgment in view of our affirmation of the trial court’s ruling regarding the expiration of the statute of limitation in this case. A grant of summary judgment must be affirmed if it is right for any reason. Newsome v. Dept. of Human Resources, 199 Ga. App. 419, 423 (3) (405 SE2d 61); accord Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746); see Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47).

Judgment affirmed.

Beasley, C. J., Pope, P. J., Andrews, Johnson and Ruffin, JJ., concur. McMurray, P. J., Blackburn and Smith, JJ., dissent.

Smith, Judge,

dissenting.

I must respectfully dissent. In my view, the very fact that the contract at issue is not a part of the record on appeal, and that it likewise was not made a part of the record below, demonstrates conclusively that the trial court’s sua sponte dismissal was, at best, premature. Even assuming, as did the trial court, that Williams’ bare observation in his answer that “over 7 seven [sic] years is a long time to charge interest on a debt that should not exist” is sufficient to put Georgia Receivables on notice that Williams intended to use a particular statute of limitation defense, this would still not be sufficient to authorize the trial court’s sua sponte dismissal in this case.

The reason a sua sponte dismissal was not authorized here is that Georgia Receivables had as yet received no opportunity to respond with particularity to the undisputedly vague “defense” purportedly raised by Williams. As I noted in my special concurrence in Georgia Receivables v. Cheatham, 216 Ga. App. 656 (455 SE2d 375) (1995), “ ‘(t)he purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense.’ [Cit.]” Id. at 658. It seems clear to me that it is never proper for the trial court to dismiss an action sua sponte based on an affirmative defense where there remains any possibility that the plaintiff could yet introduce matters otherwise outside the record that would “meet” that defense.

Decided August 3, 1995.

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

Michael A. Williams, pro se.

Because Georgia Receivables was given no reasonable opportunity to show that the statute of limitation under OCGA § 11-2-725 (1) does not apply under the facts of this case and that the 20-year statute of limitation for contracts under seal generally should apply, I would reverse the judgment of the trial court.

I am authorized to state that Presiding Judge McMurray and Judge Blackburn join in this dissent.

       It is not enough that the contract may have been under seal, because where the UCC statute of limitation in contracts for sale, OCGA § 11-2-725, does indeed apply, it, and not OCGA § 9-3-23, pertaining to sealed instruments generally, controls. McLean v. Gray, 180 Ga. App. 794, 795 (350 SE2d 815) (1986).