author: Smith, Judge.

text:
    A94A2836.
    CARTER v. E. I. DuPONT de NEMOURS & COMPANY, INC. HARRISON v. E. I. DuPONT de NEMOURS & COMPANY, INC.
    A94A2840.
    (456 SE2d 661)
   Smith, Judge.

Gary Harrison, an employee for Union Tank Car Company, mistakenly hooked an air-driven spot grinder to an unlabeled oxygen line and began working inside a tank car. The oxygen ignited, killing Harrison and causing fellow employee Richard Kevin Carter to be severely burned and injured. Appellants Carter and Sharon Harrison (as administratrix of Gary Harrison’s estate) each brought suit against several entities implicated in the incident. Appellee DuPont de Nemours & Company (DuPont) is implicated by the appellants as the developer and manufacturer of the patented “Tyvek” material used to make the coveralls worn by Carter and Harrison — material which allegedly “caught fire” after the oxygen ignited. Appellants alleged that DuPont breached its duty to each of them to warn them of the hazards of wearing Tyvek-based garments near heat, spark, or flame. These appeals are from the grant of summary judgment to DuPont and against each appellant. We have consolidated them for review.

The trial court granted summary judgment to DuPont in these cases based solely on the so-called “learned intermediary” doctrine. See generally Eyster v. Borg-Warner Corp., 131 Ga. App. 702 (206 SE2d 668) (1974). Eyster states: “ ‘Where the product is vended to a particular group or profession, the manufacturer is not required to warn against risks generally known to such group or profession.’ [Cits.] . . . ‘Ordinarily, there is no duty to give warning to the members of a profession against generally known risks. “There need be no warning to one in a particular trade or profession against a danger generally known to that trade or profession.” [Cit.]’ ” Id. at 704-705 (2).

In determining whether the learned intermediary doctrine enunciated in Eyster has any application in the present case, we must first establish the duty that DuPont in essence claims has been satisfied by informing its immediate purchasers. In Moody v. Martin Motor Co., 76 Ga. App. 456 (46 SE2d 197) (1948), this court adopted the first Restatement of Torts, § 388. The substantially similar provision found in Restatement of Torts, 2d, provides: “One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.” See Greenway v. Peabody Intl. Corp., 163 Ga. App. 698, 702 (2) (294 SE2d 541) (1982).

While DuPont argues that it sells Tyvek only in bulk to intermediaries or “converters,” the flammability of the product remains unchanged after being converted from a “sheet good” to a garment — in this case, coveralls. Also, appellants point out that DuPont has actively promoted Tyvek as a material that may be used to make “protective apparel” for the workplace. It is also noteworthy that the garments are generically referred to as “Tyvek suits,” and DuPont pays garment makers to place a “Tyvek” label on the collar. Finally, there is no suggestion that the converter in this case did anything to worsen the flammable characteristics of the material. There is therefore no valid basis to distinguish this case merely because DuPont does not cut and assemble the finished product made from its “sheet good”; that is apparently all that is left to be done in making a “Tyvek suit.” See generally Giordano v. Ford Motor Co., 165 Ga. App. 644 (299 SE2d 897) (1983) (despite integration into assembled product, component maker may be held liable where it fails to warn ultimate user of a specific danger inherent in using the component when such danger is not necessarily obvious or generally known to the ultimate user).

The issue presented in this appeal is whether DuPont sufficiently fulfilled its duty to appellant Carter and Gary Harrison as a matter of law by informing the assembler of the garments of Tyvek’s flammability characteristics. We find the authorities relied upon by DuPont in support of its summary judgments to be inapposite to the facts of the present case.

Eyster v. Borg-Warner, supra, is distinguishable because the issue presented there was strictly whether the installer of a heating/air conditioning unit should have been warned by the manufacturer of the hazards of using aluminum wiring to power the unit. Eyster merely holds that the manufacturer had no such duty because the installer should have already known of the hazard as a matter of law.

Similarly, in Stiltjes v. Ridco Exterminating Co., 178 Ga. App. 438 (343 SE2d 715) (1986), aff’d 256 Ga. 255 (347 SE2d 568) (1986), the plaintiff complained that a pesticide manufacturer failed to warn of the hazards of pesticides containing pyrethrins. The pesticides at issue, however, were not applied by the ultimate beneficiary of the product, but by a professional pest control company chargeable with knowledge that pyrethrins should not be used in the vicinity of persons with respiratory illnesses. As in Eyster, it was a patently improper application of the product by the group or profession to which the product was vended that caused the harm done; the manufacturer of the pyrethrins had no duty to warn its vendees against an application of its product that was generally known to be improper and which application the manufacturer did not otherwise recommend. See also Exxon Corp. v. Jones, 209 Ga. App. 373, 375 (433 SE2d 350) (1993) (negligent delivery of LP gas); Omark Indus, v. Alewine, 171 Ga. App. 207, 209 (319 SE2d 24) (1984) (negligent implementation or maintenance of hydraulic line).

Other cases citing Eyster deal with situations where the user assumed a known risk. See Brown v. Apollo Indus., 199 Ga. App 260 (404 SE2d 447) (1991) (danger in using aerosols in high voltage areas “ ‘common knowledge’ ” among MARTA’s electronic technicians); Lundy v. Stuhr, 185 Ga. App. 72, 74 (363 SE2d 343) (1987) (warning given that dog “ ‘[w]ill bite’ ”). Moreover, where the injury could not necessarily be blamed on the intervening negligence of an intermediary or assumption of the risk by the product’s user, we have reversed the grant of summary judgment to the manufacturer. See Giordano v. Ford Motor Co., supra at 644-645 (1) (observing that “in some situations, a duty to warn may be shared by both the component manufacturer and the assembler”).

Contrary to the unsupported assertion in its briefs, none of the cases relied upon by DuPont can fairly be read for the proposition that any duty to warn owed by DuPont to Gary Harrison and appellant Carter was conclusively satisfied merely by informing DuPont’s immediate customers of the material’s characteristics with regard to flammability. In no case have we held that the manufacturer may always rely on an intermediary to pass along to the ultimate user warnings of dangers inherent in the use of a product. We find the issue presented in these appeals requires an analysis both more flexible and more deliberate than DuPont urges to be the established law.

We are persuaded that the proper approach to analyzing the application of the “learned intermediary” doctrine in these cases is that applied in Stuckey v. Northern Propane Gas Co., 874 F2d 1563 (11th Cir. 1989). In Stuckey, as here, the manufacturer owed a duty to warn the end user of a product hazard under the rule relied upon in Moody v. Martin Motor Co., supra. See also Beam v. Omark Indus., 143 Ga. App. 142 (237 SE2d 607) (1977). Also, as in the present cases, the manufacturer in Stuckey argued that it discharged its duty to warn (of the phenomenon of “odor fade”) by supplying its product to am intermediary familiar with the hazard.

Decided March 17, 1995

Reconsiderations denied March 30, 1995

Reynolds & McArthur, Bradley J. Survant, for appellant (case no. A94A2836).

Sutton & Associates, Berrien L. Sutton, for appellant (case no. A94A2840).

Elliott & Blackburn, W. Gus Elliott, Alston & Bird, William C. Humphreys, Jr., Jennifer L. Hays, for appellee.

The Stuckey court relied upon Comment n to § 388 of the Restatement of Torts, 2d, which “addresses when a supplier’s duty to warn an ultimate consumer can be discharged by a warning given to an intermediary party. . . .” Id. at 1568. “Comment n provides a test that balances several factors: the burden of requiring a warning; the likelihood that the intermediary will provide a warning; the likely efficacy of such a warning; the degree of danger posed by the absence of such a warning; and the nature of the potential harm.” Id.

Such an inquiry has not been actively undertaken by the parties in the present case. A cursory reading of the parties’ briefs, however, reveals that it cannot be said DuPont has established its entitlement to summary judgment using the balancing test outlined above. We note in particular that in the mid-1980s, a group of protective garment assemblers adopted various standards relative to the labeling that would be contained within a given garment. In the late 1980s, DuPont ordered its assemblers “as a condition of sale” to adhere to these standards. This at least suggests that DuPont would have little difficulty in requiring garment manufacturers to place warning labels on their Tyvek-based products as a condition of sale informing the ultimate users that such garments should not be worn near heat, spark, or flame.

Appellants also argue that DuPont officials had actual knowledge that the intermediary was not placing such labels on their Tyvekbased clothing products. Finally, there is not even the bare suggestion by DuPont that a warning label would not have been efficacious, or that the dangers posed by the failure to warn and the nature of the potential harm were less than serious.

The trial court erred in concluding that Eyster and Stiltjes, supra, controlled these cases in DuPont’s favor. While we do not preclude the possibility that DuPont may be able to prove other affirmative defenses in these cases, DuPont argues no other basis for affirming the trial court’s decisions.

Judgments reversed.

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

       According to DuPont, Tyvek melts at 275°F and burns at 650°F. Medical evidence in the case indicates that clothing which melts onto the skin increases the duration of the burning process and the severity of the burn.

        Moody also relied upon the first Restatement of Torts, § 389, which provides: “ ‘One who supplies directly or through a third person a chattel for another’s use knowing that the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put, is subject to liability for bodily harm caused by such use to those whom the supplier should expect to use the chattel or to be in the vicinity of its probable use and who are ignorant of the dangerous character of the chattel or whose knowledge thereof does not make them contributorily negligent, although the supplier has informed the other for whose use the chattel is supplied of its dangerous character.’ ” Moody at 461.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A95A0044.
    YOUNG v. THE STATE.
    (456 SE2d 733)
   Andrews, Judge.

Young was charged in DeKalb County with three counts of armed robbery and two counts of possession of a firearm during the commission of a crime. The indictment charged that on July 2, 1990, Young and co-indictee Raymond Burgess, using a handgun, took property from Janet Stefanowycz and from Janet Cook. The indictment also charged that on July 3, 1990, the two men used a handgun to take property from Billy McNutt.

The case was tried and Young was convicted of the armed robbery counts and acquitted of the other charges. He was sentenced to concurrent life sentences on Counts 1 and 2, and to a consecutive life sentence on Count 3. Through counsel appointed to represent Young on post-trial matters, Young filed a motion for new trial. An evidentiary hearing was held, the motion was denied, and this appeal followed.

Viewing the evidence in the light most favorable to the verdict, it was that on July 2, 1990, Cook and Stefanowycz were entering their motel room at a motel near 1-85. They were approached by two men, one of whom carried a gold handgun. Cook and Stefanowycz were forced at gunpoint into the motel room. Cook was pushed onto a bed and her head was covered with a bedspread to prevent her from observing the perpetrators. Stefanowycz was pushed to the floor, which knocked her unconscious.

At one point Cook tried to get up off the bed, but she was pushed back down with a pillow over her head by one of the perpetrators. He placed the gun against the pillow and pulled back the trigger. The robbers stayed in the room for about half an hour and took jewelry and cash from the women. The perpetrators tied the victims’ hands before fleeing.

Cook got a good look at Burgess during the robbery. Although neither woman was able to identify Young, both women identified the golden revolver, which was later recovered from Burgess, as similar to the one used in the robbery.

There was also evidence that on July 3, 1990, McNutt was coming out of his motel room in a motel near 1-20. As he came out, a man carrying a gold revolver and a second man forced McNutt back into the room. The gunman ordered McNutt into a position where he could not see the perpetrators. When McNutt refused to comply, the gunman pistol-whipped him 12 to 15 times and threatened to blow his face off. Continuing to hold a gun to McNutt’s head, the gunman threw McNutt down and choked him, while the other gunman ransacked the room. The men took jewelry and cash from McNutt and tied him up before they fled.

McNutt saw both perpetrators, but was unable to identify Young. He identified the gold revolver and one of his watches which was recovered from Burgess upon his subsequent arrest.

As stated above, Burgess was arrested and the gold handgun and various pieces of property from the burglaries were found on him. In addition to McNutt’s watch, which was found in Burgess’ possession, Burgess’ wife was wearing Mrs. McNutt’s ring. Burgess directed the police to Young as the co-perpetrator and Young was arrested on July 20, 1990.

A DeKalb County police officer testified that on July 25, 1990, after reading Young his rights, he took two written statements from him. In one statement, Young confessed that he and Burgess robbed a man (McNutt) at the motel near 1-20 with a golden gun. In the other statement, Young confessed to the robbery with a golden gun of two women (Cook and Stefanowycz) at the motel off 1-85. In both statements Young related that Burgess threatened to shoot the robbery victims.

There was also evidence regarding similar transactions. A taped statement which Young made to an officer of the Douglas County Sheriff’s Department, after being read his Miranda rights, was played for the jury. In that statement, Young admitted that on July 16, 1990, he and Burgess held up two people at a motel adjacent to 1-20 in Douglas County. Young stated that Burgess carried the golden gun; that he and Burgess followed the victims to their motel room; that cash was taken from the victims; and that he tied the victims’ hands before leaving.

Also entered into evidence was a confession which Young made on July 22, 1990 to a Clayton County police officer. In that statement, Young admitted robbing a man at gunpoint at a motel adjacent to I-75 in Clayton County on July 9, 1990. Young stated that he and Burgess went to “commit an armed robbery” and that they selected a victim who was standing near his motel room. He stated that an attempt was made to prevent the victim from seeing them and that cash was taken from him.

Young did not testify at trial.

Prior to trial, Young’s attorney stipulated to the inclusion in the record of hearings held in Douglas County regarding the admissibility and voluntariness of statements Young made. In Douglas County, Young and Burgess were charged with armed robbery and murder, and faced the death penalty. The Douglas County court had conducted several days of hearings on the various statements Young gave with regard to the DeKalb, Clayton and Douglas County crimes. Included in the record before us are the transcripts of those extensive hearings which the Douglas County court conducted.

While Young’s attorney stated that Young objected to the use of any similar transactions, counsel recognized that the transcript related to the court’s inquiry on this subject. Young’s attorney stated that the statements from that hearing had been deemed admissible in Douglas County.

1. In Young’s first enumeration of error, he argues that the trial court erred in failing to give his requested robbery charge in that it was a lesser included offense of armed robbery. Citing Edwards v. State, 264 Ga. 131 (442 SE2d 444) (1994), Young contends that the fact that he was acquitted of the charges of possession of a firearm during the commission of the crimes establishes that there was evidence to support the lesser included charge of robbery.

We find no error in the trial court’s failure to so charge. In Edwards, supra, the Supreme Court stated: “[t]he complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” Id. at 133. Here, both the testimonies of the victims and Young’s own confessions established that the robberies were committed with Burgess’ golden gun. The evidence showed the commission of the completed offenses as charged, or the commission of no offense, and there was no error in the court’s failure to charge the lesser offense. See Leaver v. State, 211 Ga. App. 876 (2) (440 SE2d 760) (1994).

Moreover, assuming arguendo, that there was some evidence that Young committed the lesser offense, in light of the overwhelming evidence against him, “it is highly probable that the failure to give this charge did not contribute to the verdict.” Edwards, supra at 133.

2. In Young’s second enumeration of error, he contends that the trial court erred in denying his motion for new trial based on the ineffective assistance of counsel which arose from a conflict of interest. Citing Fleming v. State, 246 Ga. 90 (270 SE2d 185) (1980), he argues that there was a conflict of interest since attorney Michael Mears represented him both in the Douglas County case in which the death penalty was sought, and in the instant matter in which multiple life sentences were sought. Young asserts that he rejected a plea in Douglas County of multiple life sentences, which Mears advised him to accept, but that he wound up receiving that sentence in the DeKalb County case. Young contends that Mears’ sole objective, even while trying the DeKalb County case, was to avoid the death penalty in Douglas County and that because of this agenda, Mears compromised Young’s interest in avoiding multiple life sentences.

Young argues that this conflict led to Mears stipulating to the admission of statements Young made in the Douglas and Clayton County actions and not requesting a Jackson-Denno hearing on those statements. The Douglas County court subsequently ruled that the statements were admissible. Young argues that identification was an issue and that by stipulating to the statements, Young’s attorney provided the State with the additional evidence it needed to convict him.

At the hearing on the motion for new trial, Mears testified that the theory of the defense was to distance Young from Burgess. Mears testified that the defense tried to show Burgess as the gunman and the violent perpetrator and Young as the passive accomplice who showed restraint during the crimes and contrition after his arrest. Mears testified that Young’s statements showed remorse and supported the defense theory that Burgess was the violent perpetrator and that Young was cooperative with police. Moreover, he stated that there was ample evidence that the statements were freely and voluntarily made. Mears testified that the negative aspect of this approach was that the statements furnished the primary evidence regarding the similar transactions. Nevertheless, Mears made the conscious strategic decision not to fight the admission of the statements, since they were the most favorable option in a bad situation and since the evidence probably would be admissible. Mears stated that Young’s “statements in a vacuum were fairly favorable to the strategy that we were trying to carry forward, and that is that he was not the prime mover in these robberies.”

Mears stated that he was also mindful that if Young was convicted in DeKalb County, Douglas County would reevaluate its decision to seek the death penalty against him. Mears conceded that his overriding goal was to save Young from the death penalty.

We find no merit to Young’s argument that Mears was ineffective because of a conflict of interest. Preliminarily we note that Mears did not stipulate to the admissibility of the statements themselves; he stipulated to the court’s consideration of the transcript of the Douglas County hearings. Though Mears did not object to two of the statements, he continually objected to the admission of the statements Young made to a DeKalb County detective. Mears also made a motion to suppress evidence regarding similar transactions, which motion was granted as to the murder charge in Douglas County. Furthermore, although he did not pursue it, Mears also filed a motion to suppress based on Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

Decided March 30, 1995.

Melissa M. Nelson, Alden W. Snead, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Thomas S. Clegg, Assistant District Attorneys, for appellee.

There was no objection made at trial to this alleged conflict of interest. “When conflict of interest is raised in a post-conviction proceeding, the petitioner must show actual conflict which caused his counsel’s performance to be adversely affected. Jones [v. Ivory, 255 Ga. 20 (334 SE2d 666) (1985)], citing Cuyler v. Sullivan, 446 U. S. 335 (100 SC 1708, 64 LE2d 333) (1980).” Wharton v. Thomas, 256 Ga. 76, 77 (343 SE2d 694) (1986).

Here, there has been no showing that there was an actual conflict. At the motion for new trial hearing, Mears testified that he made strategic decisions that he considered best in the DeKalb County action. Despite Mears’ concern about the Douglas County action, he defended the DeKalb action in an appropriate manner.

Moreover, there is no evidence that the alleged conflict adversely affected Mears’ performance. In fact, Young was acquitted of the two charges of possession of a firearm during the commission of a crime.

We find no error in the denial of the motion for new trial.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       On March 24, 1993, the State filed a notice of its intent to present evidence of three similar crimes and sent the court a letter addressing the concerns of Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). The State argued that all of the similar transactions, as with the crimes for which Young was on trial, were committed at motels near an interstate highway; that they were all committed against victims who had just come in or out of a motel room; that they were all committed by two people; that in each case a golden gun was used; that in each case, attempts were made to prevent the victims from seeing the perpetrators; and that in each case attempts were made to tie up the victims.

       It is not clear from the record when the Douglas County court ruled on the admissibility of the statements.


author: Blackburn, Judge.

text:
    A95A0589.
    MOORE v. MOORE.
    (456 SE2d 742)
   Blackburn, Judge.

We granted John Randy Moore’s application for discretionary appeal to review the trial court’s order denying his motion for new trial. Moore filed the underlying petition for contempt asserting that defendant, Dianne Moore, refused to allow him visitation with his children, who were in her custody, under their 1984 divorce decree. Defendant denied Moore visitation after the couple’s oldest daughter, then 17, accused Moore of three incidents of sexual molestation which occurred in 1990.

1. In three enumerations of error Moore claims that the trial court’s judgment modifying the decree of divorce between the parties by restricting his visitation rights was contrary to the evidence, principles of justice and equity, and an abuse of discretion.

In a civil case, “a trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.” (Citations and punctuation omitted.) Mathis v. Dept. of Transp., 185 Ga. App. 658 (1) (365 SE2d 504). The same rule attaches as to findings made by the court in the context of a bench trial. See Carter v. State, 77 Ga. App. 60 (3) (47 SE2d 815) (1948). Moreover, “[a] trial court may modify visitation rights without a showing of changed circumstances, and the trial court’s increase or decrease of visitation rights will be affirmed on appeal unless the trial court abused its discretion. See Gazaway v. Brackett, 241 Ga. 127, 129 (244 SE2d 238) (1978); OCGA § 19-9-3 (b).” Thomas v. Whaley, 208 Ga. App. 362, 365 (3) (430 SE2d 655) (1993).

The record reflects that the trial court rendered its judgment after hearing the testimony of Moore, his present wife, and the children’s maternal grandmother. After considering such evidence, the trial court substantially relaxed the temporary order modifying visitation rights that it had issued after hearing Moore’s contempt action. While the instant order modifying visitation rights does not alter the requirement for supervised visitation imposed as a result of the contempt hearing, it does permit such visitation at the home of the children’s maternal grandmother and under the maternal grandmother’s supervision. Formerly, the court had required that all visitation occur at the Department of Family & Children Services (DFCS) under the supervision of DFCS personnel. Further, in response to Moore’s request, the trial court tailored the instant order modifying his visitation rights to permit visitation outside said grandmother’s home if in her company and at the appellant’s expense.

In light of the foregoing, we conclude that the evidence of record adequately supports the trial court’s modification of visitation under the facts of this case. Accordingly, the trial court did not abuse its discretion, and its modification was proper.

2. Moore further contends that the trial court abused its discretion by refusing to allow him to present evidence concerning his fitness to exercise unsupervised visitation. We disagree.

While the trial court did not permit Moore to reopen the issue of his fitness for unsupervised visitation, it did so in a hearing where Moore did not seek unsupervised visitation. Nevertheless, the trial court considered all evidence which had been adduced in its hearing on Moore’s application for contempt, and, by stipulation, made the transcript of that proceeding a part of the record in the action sub judice. Under these facts, we cannot conclude that the trial court abused its discretion by limiting the evidence it heard below to that which was relevant and material to matters not relating to the need for continuing supervised visitation. See Thomas, supra.

Decided March 30, 1995.

Thomas H. Pittman, for appellant.

Howard B. Slocumb. for appellee.

Judgment affirmed.

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


text:
    A95A0639.
    SPRUELL v. THE STATE.
    (456 SE2d 740)
   Blackburn, Judge.

Benjamin Allan Spruell appeals his conviction of operating a motor vehicle after being declared a habitual violator under OCGA § 40-5-58 (c) (1).

In his sole enumeration of error, Spruell contends the trial court erred in denying his motion for directed verdict in that a fatal variance existed between the allegation in the indictment and the evidence adduced at trial. The indictment charged, in pertinent part, that Spruell “did unlawfully operate a motor vehicle after [he] had received notice that his driver’s license had been revoked under the provisions of Section 40-5-58 of the Driver’s Licensing Act, notice to [him] having been given June 20, 1989, in accordance with the said laws, and [he] thereafter had not obtained a valid driver’s license.”

1. Spruell argues that there was a fatal variance between the indictment and the proof at trial in that the State’s evidence showed he had been issued a probationary license after being declared a habitual violator on October 7, 1988. We disagree.

Absent a variance between the pleadings and the proof resulting in a failure to give sufficient notice of the allegations against an accused or to foreclose the potential for another prosecution against the accused for the same offense, a variance is not fatal. Glass v. State, 199 Ga. App. 530, 531 (405 SE2d 522) (1991). Spruell was issued a probationary license after being declared a habitual violator; however, such license was revoked as a result of his third and fourth convictions for driving under the influence of alcohol more than a year before his commission of the present offense. Neither the revocation of Spruell’s probationary license nor his habitual violator status had expired at the time of the subject incident. Spruell was thus without a valid driver’s license at the time of the instant offense, and he was in habitual violator status at such time. Cody v. State, 170 Ga. App. 712, 713 (318 SE2d 503) (1984).

Decided March 30, 1995.

Spruell & Dubuc, Brian M. Dubuc, for appellant.

Lewis R. Slaton, District Attorney, Joseph F. Burford, Carl P. Greenberg, Juliette O. Scales, Assistant District Attorneys, for appellee.

Accordingly, we conclude that no fatal variance between the indictment and the proof obtained as a result.

2. Spruell also argues that the indictment’s failure to plead all known convictions for driving under the influence of alcohol against him when charged resulted in a fatal variance in that it left him unprotected from potential prosecution under OCGA § 40-5-58 (c) (2) for felony impaired driving.

Material to a violation of OCGA § 40-5-58 (c) (2) is a Department of Public Safety declaration of habitual violator status upon three or more convictions for driving under the influence of alcohol. See OCGA § 40-5-58 (b), (c) (2); see also OCGA §§ 16-1-7; 16-1-8 and Teal v. State, 203 Ga. App. 440, 442 (417 SE2d 666) (1992) (“The procedural aspect of the double jeopardy rule prohibits multiple prosecutions arising from the same conduct. [Cits.]”). At the time of trial, Spruell had not been declared a habitual violator on the basis of more than two convictions for driving under the influence of alcohol, this despite the fact that two additional convictions were then known. Nothing in the record indicates that he has been since. As a consequence, the indictment’s failure to plead all known convictions for driving under the influence of alcohol did not result in error for fatal variance. Rather, it properly pled the instant violation of OCGA § 40-5-58 (c) (1), giving Spruell due notice of that which he was to defend against and protecting him from again being tried thereon, the proper measure of his entitlement. Glass, supra.

There being no fatal variance in the case at bar, the trial court properly denied appellant’s motion for directed verdict. “[A] motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. [Cit.]” Taylor v. State, 252 Ga. 125, 127 (1) (312 SE2d 311) (1984).

Judgment affirmed.

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

       Spruell’s habitual violator’s status would have expired on October 7, 1993, nearly six months after his commission of the instant offense.


text:
    A95A0712.
    RANGEL v. THE STATE.
    (456 SE2d 739)
    Decided March 30, 1995.

      M. Glenn Howell, Sr., for appellant.
   Blackburn, Judge.

Appellant, Thomas Jesse Rangel, appeals from the trial court’s order denying his plea in bar of prosecution upon the charge of simple battery in violation of OCGA § 16-5-23.1.

On July 14, 1994, Rangel and others were involved in a fight in Forest Park, Clayton County, Georgia. The police officer responding to the incident issued Rangel a Uniform Traffic Citation (UTC) charging him with “simple battery” in violation of “Section 16-5-23.” However, the officer checked the “local ordinance” box thereon, indicating that the offense was violative of a local ordinance. Subsequently, Rangel was arrested, released on bond, and given a September 12, 1994, arraignment date in the State Court of Clayton County upon a two-count accusation charging him with the crime of “16-5-23.1 Battery.” On August 24, 1994, Rangel appeared before the Municipal Court of Forest Park in accordance with instructions that he do so on the face of the UTC he had been given. The municipal court found Rangel not guilty of simple battery as set out on the UTC. Rangel argues his subsequent prosecution is barred. We do not agree.

Although “the General Assembly has enacted legislation vesting municipal courts with jurisdiction over various state misdemeanor offenses,” Kolker v. State, 260 Ga. 240, 243 (391 SE2d 391) (1990), it has not done so with respect to simple battery and battery, both state offenses. OCGA §§ 16-5-23; 16-5-23.1. Otherwise, it is well established that a municipal court is without jurisdiction to try anyone for violation of state law. State v. Millwood, 242 Ga. 244, 246 (248 SE2d 643) (1978). Rangel was here prosecuted for simple battery in violation of “Section 16-5-23 of . . . local ordinance”; however, the record reflects that Forest Park had no such local ordinance.

The Municipal Court of Forest Park thus lacked jurisdiction over the offense, and any prosecution of the offense before such court is void and without effect as to a subsequent state court prosecution. Lewis v. State, 207 Ga. App. 212, 213 (427 SE2d 578) (1993); Duncan v. State, 185 Ga. App. 854, 855 (366 SE2d 154) (1988); Parker v. State, 170 Ga. App. 333 (1) (317 SE2d 209) (1984). Accordingly, OCGA §§ 16-1-7 (b) and 16-1-8 (b), do not bar Rangel’s trial in state court on grounds of double jeopardy or prior prosecution. See OCGA § 16-1-8 (d) (1); Parker, supra at 334.

Judgment affirmed.

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

Keith C. Martin, Solicitor, for appellee.


text:
    A95A0780.
    WIMPEY v. NORFOLK SOUTHERN RAILWAY COMPANY.
    (456 SE2d 744)
   Blackburn, Judge.

The appellant, Jimmy Wimpey, commenced the instant action against appellee Norfolk Southern Railway Company (Norfolk) under the Federal Employers’ Liability Act (FELA), 45 USC 51 et seq., based upon injuries that he received when he slipped and fell in the employees’ locker room provided by Norfolk. Following a five-day trial, the jury returned a verdict in favor of Norfolk, and judgment was entered on the jury’s verdict. Wimpey subsequently moved for a new trial, and the motion was denied by the trial court. This appeal followed. In his sole enumeration, Wimpey maintains that the trial court erred in failing to properly and accurately respond to a question posed by members of the jury.

At the conclusion of the evidence, the trial court instructed the jury on the applicable law under FELA and under general negligence principles, which included an instruction on contributory negligence and a section of FELA which effectively abolished the doctrine of assumption of the risk. The trial court further charged the jury on the apportionment of damages in the event that they found Wimpey guilty of contributory negligence. The trial court inadvertently omitted to give this charge earlier. The jury deliberated for approximately one hour and were later sent home for the evening.

The jury returned the next morning, and following several hours of deliberation, the foreman of the jury submitted to the court a handwritten note which read: “We want the judge to read Sect 3/4 of FELA along with his instruction and examples. [Signature of the foreman] P.S. if the contributory negligence stuff you read yesterday should have been in the text at this point then include this.” The note contained an arrow leading from the postscript to the first sentence. In response to this note, after a colloquy between the attorneys, the trial court recharged the jury that the doctrine of assumption of the risk is not applicable to FELA actions and that they could apportion any damages awarded if they found Wimpey guilty of contributory negligence. The trial court also instructed the jury to submit another written question if additional clarification was needed. Wimpey objected to the recharge as given.

Decided March 30, 1995.

Jones & Granger, Harry B. Bailey III, J. Ashton Moss, for appellant.

Branch, Pike & Ganz, Eileen Crowley, Daryl G. Clarida, David M. Atkinson, for appellee.

“When the jury requests a charge or recharge on a particular point, the trial court has discretion to also give or not give additional instructions. [Cit.]” Patterson v. State, 264 Ga. 593, 594 (2) (449 SE2d 97) (1994). The recharge on assumption of the risk and contributory negligence was authorized by the evidence and legally accurate. Id. There was evidence that Wimpey walked directly across the moist locker room floor in leather-soled shoes instead of walking on the non-skid safety strips that had been placed around the room by Norfolk. Consequently, we find that the trial court did not abuse its discretion in recharging the jury. Id.

Judgment affirmed.

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

       The jury did submit another question on the elements of negligence under FELA and the definition of causation. However, Wimpey does not challenge the trial court’s charge to the jury in response to this question.


text:
    A95A0869.
    GRAND UNION COMPANY v. EDWARDS.
    (456 SE2d 736)
   Blackburn, Judge.

Appellee/plaintiff, Diane Edwards, commenced this action against Grand Union Company f/k/a Big Star (Grand Union), to recover damages on the grounds that Grand Union had slandered her and wrongly and maliciously summoned certain arrest warrants against her alleging she had written and failed to honor four checks, and subjected her to severe emotional distress. The trial court denied Grand Union’s motion for summary judgment and this interlocutory appeal followed.

The record shows that four checks, totaling $700, were cashed at a Grand Union store. The checks, drawn upon a Bank South account in Edwards’ name and payable to her brother, Douglas Daniel, were returned to the store as written upon an account which Edwards had closed eight years earlier. In this regard, Edwards deposed that she had hidden the checks in a closet, accused her brother of stealing them, forging them, and negotiating them through a cashier in the store with whom he was friendly.

Grand Union twice sent Edwards notice by certified mail. The first such notice was returned to Grand Union unopened as non-deliverable. The second notice reached Edwards at a corrected address. Receiving no response in the ten days required by OCGA § 16-9-20, Grand Union caused an arrest warrant to be issued for Edwards’ arrest. After its issuance, the manager of the store at which the checks had been cashed received a telephone call from James Hall, a man who identified himself as Edwards’ former common-law husband. As Edwards listened in on another telephone while saying nothing, Hall explained that Edwards could not have issued the checks in question, as they had been stolen and forged. Edwards was later arrested; however, Grand Union voluntarily dropped the charges against Edwards at the preliminary hearing in light of Hall’s explanation.

1. Grand Union argues that the trial court erred by denying its motion for summary judgment in that it was entitled to absolute immunity from civil liability under OCGA § 16-9-20 for giving notice of its holding a worthless check in a manner substantially in compliance with the form provided by subparagraph (a) (2) (B) thereof.

OCGA § 16-9-20 (h) (1) pertinently provides that “[a]ny party holding a worthless instrument and giving notice in substantially similar form to that provided in subparagraph (a) (2) (B) of this Code section shall be immune from civil liability for the giving of such notice and for proceeding as required under the forms of such notice.” (Emphasis supplied.)

Initially, we note that Grand Union went beyond what was statutorily required in the instant circumstances because OCGA § 16-9-20 (h) (1) dispenses with any notice requirement where a bad check is written on a closed account. In an abundance of caution, Grand Union nonetheless noticed Edwards that it held specific checks drawn upon her account; that the checks had been returned as worthless; that Georgia law allowed her ten days from receipt of notice to tender payment thereon; and that failure to do so would authorize it to submit the checks and all other available information to a magistrate, district attorney, or solicitor for issuance of a criminal warrant or citation.

Only insofar as the notice did not advise Edwards that the failure to pay the specified amount within ten days would result in a presumption that the checks were presented for payment with the intent to defraud, did the notice given Edwards differ at all from that notice set out at subparagraph (a) (2) (B). We cannot fault such notice for other than strict compliance with the prescribed form. Edwards does not challenge its form as deficient. Inasmuch as “[w]e are required to look for the intent of the legislature and construe statutes to effectuate that intent giving all words their ordinary significance, [cit.]” Griffin-Spalding County School System v. Daniel, 215 Ga. App. 567, 568 (451 SE2d 480) (1994), we conclude that Grand Union is immune from civil liability for proceeding against Edwards.

Decided March 30, 1995.

Sullivan, Hall, Booth & Smith, Alexander H. Booth, Jeffrey T. Wise, Karl M. Braun, for appellant.

Scott F. Randolph, for appellee.

2. Grand Union further argues that the trial court erred by denying its motion for summary judgment in that a party holding a worthless check who gives proper notice under OCGA § 16-9-20 is deemed to have conclusive evidence that it pursued collection action with probable cause and without malice.

“Except as otherwise provided by law, any party who holds a worthless instrument, who complies with the requirements of subsection (a) of this Code section, and who causes a criminal warrant or citation to be issued shall not forfeit his or her right to continue or pursue civil remedies authorized by law for the collection of the worthless instrument. It shall be deemed conclusive evidence that any action is brought upon probable cause and without malice where such party holding a worthless instrument has complied with the provisions of subsection (a) of this Code section regardless of whether the criminal charges are dismissed by a court due to payment in full of the face value of the instrument and applicable service charges subsequent to the date that affidavit for the warrant ... is made.” (Emphasis supplied.) OCGA § 16-9-20 (h) (2). As in Division 1, we are authorized to construe the law for no more than its plain meaning. Griffin-Spalding, supra. We have concluded that Edwards received appropriate notice in the instant circumstances. As a result, Grand Union pursued its OCGA § 16-9-20 collection action with probable cause and without malice.

In light of the foregoing, we conclude that the trial court erred by denying Grand Union’s motion for summary judgment. See Blankenship v. Home Depot, 182 Ga. App. 358, 359 (356 SE2d 61) (1987); Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

Judgment reversed.

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


author: Johnson, Judge. Beasley, Chief Judge, Andrews, Judge,

text:
    A94A1929.
    SISK v. PATEL.
    (456 SE2d 718)
   Johnson, Judge.

On June 7,1991, an x-ray of Sisk’s chest was taken at a Veteran’s Administration medical facility. Physician Patel interpreted it as showing no abnormalities. Later examination of Sisk’s chest revealed a mass that proved to be a squamous cell lesion; review of the June 7, 1991 x-ray suggested the mass was visible at that time.

Sisk filed a claim under the Federal Tort Claims Act, attaching an affidavit from Dr. Scheer as required. Uncertain over Patel’s employment status, Sisk also sued him in superior court, alleging medical malpractice. Recognizing the need for an expert affidavit asserting malpractice to comply with OCGA § 9-11-9.1, Sisk requested Dr. Scheer to execute and supply another affidavit, identical in wording to the first.

The superior court complaint was filed on June 7, 1993, exactly two years after the x-ray in question. At that time, Sisk did not have an affidavit from Dr. Scheer in hand, but he had a facsimile copy of one and Dr. Scheer’s assurance that the original would be forwarded. Rather than allege in his complaint that an affidavit “could not be prepared” under OCGA § 9-11-9.1 (b), which would have resulted in an automatic 45-day extension to file the affidavit, Sisk filed his complaint with the facsimile of the affidavit, stating the necessary affidavit was attached. When Dr. Scheer’s affidavit arrived at the office of Sisk’s counsel the next day, it was not filed with the court but placed in a file in counsel’s office.

Patel responded and contended that the complaint failed to comply with OCGA § 9-11-9.1. On March 21, 1994, Patel moved to dismiss for failure to state a claim, OCGA § 9-11-12 (b) (6), based upon the failure to submit an expert’s affidavit. See OCGA § 9-11-9.1 (e). On March 28, without a response from Sisk being filed, the court granted dismissal, noting that the original affidavit had not been filed and that the record was devoid of any suggestion that its absence was due to a mistake. See OCGA § 9-11-9.1 (e). On April 1, 1994, Sisk moved to set aside-the dismissal and included the affidavit of Sisk’s counsel setting forth the reasons the original affidavit was not filed and including the original. The brief in support of the motion included a request that Sisk be permitted to amend his complaint to include the original affidavit. The motion was denied. The court noted that Sisk had not availed himself of the benefits of the procedure set forth in OCGA § 9-11-9.1 (b), designed to protect plaintiffs with difficulties such as his, nor had he moved the court for a determination under OCGA § 9-11-9.1 (e) that the affidavit was available when the complaint was filed and its absence was due to mistake.

Sisk filed his notice of appeal contending that there are two issues to be determined: whether the facsimile of the affidavit satisfies the requirements of OCGA § 9-11-9.1, and if not, whether amendment should be permitted when the affidavit existed at the time of submission, as shown by the existence of a facsimile, even though the original was not in the plaintiff’s possession.

The Supreme Court has held that “since § 9-11-9.1 establishes an ‘ “exception to the general liberality of pleading permitted under (the Civil Practice Act, OCGA § 9-11-1 et seq.)” [cit.],’ [cit.], it should be construed in a manner consistent with the liberality of the Civil Practice Act where such construction does not detract from the purpose of § 9-11-9.1 ‘to reduce the number of frivolous malpractice suits being filed,’ [cit.].” Gadd v. Wilson & Co., Engineers &c., 262 Ga. 234, 235 (416 SE2d 285) (1992). There is no question that the purpose of OCGA § 9-11-9.1 is satisfied by the facsimile affidavit Sisk submitted; it is evidence that an expert deems the action to have factual merit, and Patel has made no challenge to the genuineness of the affidavit. “When viewed from this perspective, no question of frivolity could arise from absence of [an original].” Gadd, supra at 235. As the purpose of OCGA § 9-11-9.1 is not offended by the facts of this case, we are required by Gadd to construe the section liberally.

Sisk argues that the existence of a facsimile of the affidavit establishes its existence and shows it is “available,” within the meaning and purpose of the statute. We agree. There can be no facsimile if there is no original. As an affidavit under OCGA § 9-11-9.1 must meet the more generous standards of a pleading requirement rather than those of an evidentiary requirement, Bowen v. Adams, 203 Ga. App. 123 (416 SE2d 102) (1992), it can be considered “available” within the meaning of OCGA § 9-11-9.1 (e) when it is in existence and acquirable by plaintiff, even though not physically in the plaintiff’s possession, as here.

The Supreme Court recently declined to require letter-perfect compliance with procedural requirements in a medical malpractice case. In Paulin v. Okehi, 264 Ga. 604 (449 SE2d 291) (1994), uncertified copies of office and hospital records were attached to an affidavit submitted by plaintiffs’ expert in response to a motion for summary judgment. The Court held that this defect was cured when the defendant doctor acknowledged the authenticity of the records at his deposition, which was subsequently filed with the challenged documents included as exhibits. “Under the[se] circumstances, those records should not be ignored for lack of certification. [Cit.] It is the policy of this Court whenever possible to seek ‘substantial justice and judicial economy rather than strict compliance with procedural technicalities.’ [Cit.]” Paulin, supra at 605.

We recognize that the affidavit at issue in Paulin was submitted in connection with a motion for summary judgment, and held to a stricter standard, than to satisfy the requirements of OCGA § 9-11-9.1. “Unlike OCGA § 9-11-56, which imposes an evidentiary requirement in the context of summary judgment on the merits, OCGA § 9-11-9.1 merely imposes an initial pleading requirement on the plaintiff in a malpractice action. Accordingly, an expert affidavit which would be insufficient to satisfy the evidentiary standards of OCGA § 9-11-56 may nevertheless be sufficient to satisfy the pleading standards of OCGA § 9-11-9.1.” (Citations, punctuation and emphasis omitted.) Bowen, supra at 123.

“With regard to whether a facsimile copy may be filed with the complaint, we turn to Waldroup v. Greene County Hosp. Auth., 204 Ga. App. 256 (2) (419 SE2d 36) (1992) for guidance. In that case, we noted that ‘(a)lthough the statute contemplates that the original affidavit of the expert should be filed, our decision in Gooden v. Ga. Baptist &c., 198 Ga. App. 407 (1) (401 SE2d 602) (1991) does not prohibit trial courts when justice so requires from considering facsimiles of affidavits that are available during the statutory period.” Brown v. Middle Ga. Hosp., 211 Ga. App. 884, 885 (1) (440 SE2d 687) (1994). We disagree with the final analysis in Brown which would require application of the renewal provisions of OCGA § 9-2-61 in those instances in which a facsimile was filed, rendering the filing of a facsimile an amendable defect. Under those provisions the original affidavit would have had to have been in the physical possession of counsel at the time of filing, and the facsimile filed as a result of a mistake.

Electronic transmission of printed material has become an accepted method of communication and an indispensable tool for conducting business. A facsimile clearly establishes that the document existed, and was available, albeit in a different form, during the statutory period. Courts should be open to technological development in order to facilitate substantial justice and judicial economy. The better approach should be to allow the filing of a facsimile of a properly executed affidavit with a complaint in a professional malpractice action so as to avoid the running of the statute of limitation. Then the original should be allowed to be filed as a supplemental pleading, without requiring the action to be “renewed.”

Sisk filed the original affidavit with his motion to set aside the trial court’s dismissal. At that point the trial court had both the facsimile, filed with the complaint, and the original. In the absence of any evidence of differences between the two, the court exalted form over substance in refusing to set aside the dismissal of his complaint.

The dissent argues that the legislature specified the requirements and procedures applicable to OCGA § 9-11-9.1 affidavits and we are precluded from taking judicial exception thereto. However, the history of OCGA § 9-11-9.1 in the appellate courts has shown beyond a reasonable doubt that it is only with great difficulty made workable in the practical arena of litigation, and has largely failed to achieve its purpose of reducing frivolous litigation. Rather, it has created an added layer of motions regarding the sufficiency of affidavits preceding the motions for summary judgment on the merits. Rather than continuing to interpret and reconcile subsection after subsection added to the statute by the legislature in attempts to fix what is fundamentally broken, the better approach is to construe pleadings liberally to do substantial justice in accordance with OCGA § 9-11-8 (f).

Judgment reversed.

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

Beasley, Chief Judge,

dissenting.

I respectfully dissent, as Sisk failed to follow the law.

The legislature set out a very precise and detailed procedure to be followed in such cases, and the majority largely sweeps it away. Whether it is too demanding, and whether it should accommodate facsimile copies, is not for the court to decide unless it violates due process, a claim not advanced. If the legislature has power to establish the procedure, a point which is not challenged, then the judicial branch must honor its requirements. It is no answer to say that the Civil Practice Act is to be construed liberally, according to its own provisions. See OCGA §§ 9-11-1; 9-11-8 (f). OCGA § 9-11-9.1, too, is an act of the General Assembly, which has created within the Civil Practice Act the particularized requirements for professional malpractice affidavits.

The submission of a facsimile of an affidavit does not meet the requirements of OCGA § 9-11-9.1. It does not bear original signatures and thus it does not suffice to constitute an affidavit. See Miller v. Caraker, 9 Ga. App. 255, 256-257 (71 SE 9) (1911). Failure to file an original affidavit is a defect that “bear[s] directly on the determination of whether the requirements of OCGA § 9-11-9.1 were satisfied. . . .” Gooden v. Ga. Baptist Hosp. &c., 198 Ga. App. 407, 408-409 (1) (401 SE2d 602) (1991) (photocopy insufficient; affidavit also defective for lack of referenced exhibits); see also Hardman v. Knight, 203 Ga. App. 519 (417 SE2d 338) (1992) (unsigned affidavit insufficient).

Sisk does not cite any decision holding that a facsimile or other reproduction of an original affidavit can satisfy the requirement that an affidavit be filed, or that a copy will suffice when an affidavit is required by law in other instances. He cannot rely on an understanding of the law unsupported by precedent. He argues instead that the purpose of OCGA § 9-11-9.1, to reduce the number of frivolous malpractice suits, see Hewett v. Kalish, 264 Ga. 183, 184 (1) (442 SE2d 233) (1994), is not advanced by requiring the original affidavit rather than a facsimile, and that once the expert has rendered his opinion as to the basis of the suit, the purpose of the statute is fulfilled and the affidavit is mere evidence of that fulfillment. He contends that to rule that a facsimile of an affidavit is insufficient would be to elevate the form of the requirement over its substance.

In Brown v. Middle Ga. Hosp., 211 Ga. App. 884 (440 SE2d 687) (1994), we were similarly faced with the argument that a facsimile was sufficient or, if not, the failure to file the original was an amendable defect. We did not determine that a facsimile alone was satisfactory, but rather that it was defective and could only be considered for filing purposes if “the failure to file the proper affidavit in the first place constitutes an ‘amendable defect.’ ” Id. at 885 (1). Sisk’s arguments concerning the policy behind the statute and the ability of a facsimile to fulfill that policy have some compelling logic, especially in this age of instant facsimile transmission and often distant witnesses; the process of creating and agreeing upon an affidavit is doubtless facilitated by the technology, and securing the evidence of the expert’s opinion would be more efficient if a facsimile could be submitted. However, the simple fact is that a facsimile, or any reproduction, is not an affidavit. “A signed statement of facts, purporting to be the statement of the signer, followed by the certificate of an officer, authorized to administer oaths that it was sworn to and subscribed before him, is a lawful affidavit.” Phoenix Air Conditioning Co. v. Al-Carol, Inc., 129 Ga. App. 386, 387 (199 SE2d 556) (1973). The only question then is whether the failure to file an original was an amendable defect.

Sisk argues that Waldroup v. Greene County Hosp. Auth., 204 Ga. App. 256 (419 SE2d 36) (1992), requires that amendment of the affidavit be permitted. In that case, the plaintiff had invoked the protection of OCGA § 9-11-9.1 (b), which Sisk did not do. On the 45th day after filing the complaint,' the plaintiff filed a facsimile of an expert’s affidavit. Id. at 257 (1). Subsection (b) includes a provision that extensions of the 45-day period may be given “for good cause . . . [when] justice requires.” That language is not in subsection (e), under which Sisk must travel. Waldroup determined that a subsection (b) extension should have been granted under the facts of that case, because the facsimile showed the original was available.

In Brown, supra, with facts similar to those in this case, we looked to Waldroup and concluded that Waldroup required that a facsimile of an original affidavit would be acceptable only if the original filing could be amended. Whether Sisk is allowed to amend is controlled by OCGA § 9-11-9.1 (e), which states that a plaintiff who fails to file an affidavit cannot amend pursuant to OCGA § 9-11-15 “unless a court determines that the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file the affidavit was the result of a mistake.”

Sisk argues that the existence of a facsimile of the affidavit establishes the existence of the original and shows it is “available,” within the meaning and purpose of the statute. There can be no facsimile if there is no original. As an affidavit under OCGA § 9-11-9.1 must meet the standards of a pleading requirement rather than those of an evidentiary requirement, Bowen v. Adams, 203 Ga. App. 123 (416 SE2d 102) (1992), it can be considered “available” within the meaning of OCGA § 9-11-9.1 (e) when it is in existence and acquirable by plaintiff, even though not physically in the plaintiff’s possession, as here. He had, it may be said, constructive possession of it because it was in his control. This is evidenced by the fact that he soon received it.

Waldroup, supra, is clearly distinguishable because its resolution was governed by the less rigid subsection (b), however. Sisk must also satisfy the subsection (e) requirement that the failure to file the original was the result of a mistake, a requirement not found under the facts of Waldroup. Additionally, Waldroup does not control because the language Sisk wishes to rely upon concerning amendment rests upon St. Joseph’s Hosp. v. Nease, 259 Ga. 153 (1) (b) (377 SE2d 847) (1989), which predates the addition of subsections (e) and (f) to OCGA § 9-11-9.1. Id. at 155, n. 3. The trial court pointed out that plaintiff never moved the court to determine that the failure to file the proper affidavit was the result of a mistake.

It is clear from the record and pleadings that the failure to file the original affidavit contemporaneously with the complaint was not due to any mistake but rather to the fact that it was not physically in plaintiff’s possession when the complaint was filed. The only mistake asserted by Sisk occurred after the required time had expired, when the original affidavit arrived and was placed in an office file. OCGA § 9-11-9.1 (e) prevents the defect from being cured by amendment when there is not a “mistake” within the sense intended by the statute. Brown, supra at 886 (1). This result is consistent with Nease, supra at 155, n. 3. Here there were legal mistakes as to the effect of a facsimile and the procedure to be followed.

Although one might be inclined to construe the pleadings in this case to allow amendment so as to do substantial justice, satisfying both the policy behind OCGA § 9-11-9.1 and the language of OCGA § 9-11-8 (f), we are constrained not only by the choices made by the legislature in crafting OCGA § 9-11-9.1 and by Sisk in pursuit of his case, but as an appellate court also by the trial court’s ruling. Had Sisk invoked OCGA § 9-11-9.1 (b) when filing his complaint, no dismissal would have occurred. Even though he did not do so, had he attempted to amend his complaint to comply with subsection (b) within 45 days of filing, he may have been afforded that privilege. See Thompson v. Long, 201 Ga. App. 480, 481-482 (1) (411 SE2d 322) (1991). He did not file the original affidavit in court until over nine months after the complaint was filed and after defendant’s motion to dismiss the complaint was granted.

Sisk expressly appealed from the March 28, 1994 dismissal of his complaint, by notice filed April 26, 1994. He did not appeal from the subsequent denial of his motion to set aside and amend. The enumeration of error and argument are confined to the acceptability and amendability of the facsimile affidavit. Therefore, the attempted amendment itself is an issue not properly before us. See City of Atlanta v. Jackson, 263 Ga. 426, 428 (6) (435 SE2d 212) (1993).

Moreover, the affidavit is ineffective. The original affidavit, filed with the VA, was sworn to and subscribed before a notary public by Dr. Scheer on June 3, 1993. Suit was filed, without an original affidavit, on June 7, 1993. It had attached a facsimile copy of an affidavit signed by Dr. Scheer on May 31 and by the notary (a different one) on June 7. Thus, on its face it does not appear that Dr. Scheer swore to and subscribed the affidavit before the notary. The original of this one was filed after the complaint was dismissed in March 1994. Even if its filing had been timely, it was invalid. “ ‘In order to make an affidavit there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath.’ ” Harvey v. Kidney Center of Central Ga., 213 Ga. App. 319, 320 (444 SE2d 590) (1994), and cases cited therein.

Although the existence of a valid affidavit at the time of filing the complaint satisfies the policy behind OCGA § 9-11-9.1, the legislature specified the requirements and procedures applicable to OCGA § 9-11-9.1 affidavits and we are precluded from creating a judicial exception for the problems presented by plaintiff. The form, procedure, and permitted deviations are tightly controlled by the statute. The judiciary is given very limited fields of discretion in this matter in order to achieve the purpose of the statute equitably.

The majority suggests that a facsimile be allowed to avoid the statute of limitation with the later filing of the original permitted as a “supplementary pleading.” OCGA § 9-11-9.1 (e) controls such amendments and requires that the failure to file the original was due to a mistake.

The majority also suggests that the submission of the facsimile itself should satisfy the filing requirement of OCGA § 9-11-9.1 (a), with the original being required only if the existence of the affidavit is challenged. This practical solution requires legislative loosening of the reins. There is no basis in the statute for accepting anything other than the original affidavit. As stated in Barr v. Johnson, 189 Ga. App. 136, 137 (375 SE2d 51) (1988), which also involved OCGA § 9-11-9.1, “[i]f the legislature sets forth a specific statutory means by which the plaintiff judicially enforces [his] cause of action, [h]e must follow that law, or [his] action is subject to dismissal. OCGA § 9-11-41 (b).”

In this instance, the legislature has established the method, in fact alternative methods, by which its purpose in requiring an affidavit is to be served. Plaintiffs, and the courts, can devise other and even arguably better methods. However, because they are not empowered to change the law prescribed by the legislature absent constitutional infirmity, they are bound to follow it. The liberality given pleading requirements of the Civil Practice Act (CPA) does not extend to the specific procedural requirements placed on malpractice actions by the legislature after adoption of the CPA. Nor does it apply to the prerequisites for a valid affidavit.

The principle in the majority opinion taken in quote from Gadd v. Wilson & Co., Engineers &c., 262 Ga. 234, 235 (416 SE2d 285) (1992), related to the contents and substance of the affidavit, that is, the sufficiency of affiant’s statements of fact, not the procedural requirements of the statute with respect to such affidavits. Also, as noted by the majority, Paulin v. Okehi, 264 Ga. 604 (449 SE2d 291) (1994), involves an affidavit submitted in opposition to a motion for summary judgment, which is not subject to the procedural filing requirements of OCGA § 9-11-9.1. What is more, neither of these cases dealt with a purported affidavit which lacked any of the essentials of a valid affidavit.

The law permitted Sisk’s complaint to be dismissed, as it was. It cannot be concluded that the court erred as a matter of law in its application of OCGA § 9-11-9.1 (e).

I am authorized to state that Judge Andrews and Judge Ruffin join in this dissent.

Decided March 17, 1995

Reconsideration denied March 31, 1995

Knight & Fisher, Ronald T. Knight, Joy H. Fisher, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., for appellant.

Watson, Spence, Lowe & Chambless, Thomas S. Chambless, Dawn G. Benson, for appellee.

Andrews, Judge,

dissenting.

I join Chief Judge Beasley’s dissent and write separately simply to note that the criticism the majority directs toward the legislation is misplaced. OCGA § 9-11-9.1 is an uncomplicated statute made complicated only by the refusal of the appellate courts of this state to apply it as written.

       See Emory Clinic v. Wyatt, 200 Ga. App. 184 (1) (407 SE2d 135) (1991), disapproved on other grounds, Dixon v. Barnes, 214 Ga. App. 7, 9 (1) (446 SE2d 774) (1994).

       This view goes back to a statement by this court in Continental Invest. Corp. v. Cherry, 124 Ga. App. 863, 865 (2) (186 SE2d 301) (1971), regarding claims of fraud under OCGA § 9-11-9 (b). At that time, the requirement for malpractice affidavits did not exist; it was enacted in 1987. Ga. L. 1987, p. 887, § 3.

       In order to invoke the operation of subsection (e), Patel was required to raise “the failure to file such an affidavit in [his] initial responsive pleading,” which he did. Compare Colston v. Fred’s Pest Control, 210 Ga. App. 362, 364 (436 SE2d 23) (1993).

       In Gooden v. Ga. Baptist Hosp. &c., 198 Ga. App. 407, 409 (2) (401 SE2d 602) (1991), which involved application of the same language in subsection (f), there similarly was “no evidence in the record to indicate that the failure to file a satisfactory affidavit was the result of a mistake.” The dismissal of the complaint on this and other grounds was affirmed.

       In Waldroup, supra at 258 (2), we noted that “our decision in Gooden . . . does not prohibit trial courts when justice so requires from considering facsimiles of affidavits that are available during the statutory period.” This was carried forward in Brown, supra at 885 (1). Gooden involved an application of subsection (f) of the statute, which like subsection (e) applicable here, governs failure to file due to a mistake. Neither subsection expressly provides discretion to act “as justice requires,” although subsection (b), not applicable here, does so.


author: Beasley, Chief Judge. Andrews, Judge, Smith, Judge,

text:
    A94A2044.
    SMITH et al. v. GEIGER et al.
    (456 SE2d 636)
   Beasley, Chief Judge.

Defendant lessees Smith and Pass d/b/a Sylvan Hills Learning Center appeal the grant of a writ of possession, award of attorney fees and costs, and the denial of their motion for new trial in favor of plaintiff landlords, the Geigers, who sued to regain possession of a day care center.

On November 15, 1985, the parties entered into a lease-purchase agreement for “a business known as Sylvan Hills Learning Center, an ongoing concern engaged in the care of children.” Originally, the term of the lease was three years and the monthly rental was $1,800. The lease provided for renewal after the first three years for an additional three years, then again after six years for an additional four years. At the end of the first three years, lessees had the option to purchase the center for a pre-determined sales price of $155,000. After six years, the price changed to $175,000. Finally, the lease provided that the landlords would convey fee simple title to lessees at the end of ten years, at no additional cost, if lessees complied with all terms, conditions, obligations, and covenants under the lease. Lessees paid $10,000 for the buy-out provision, when the lease was executed.

Approximately eight years into the ten-year period, the landlords instituted this “Proceeding Against Tenant Holding Over” on November 3, 1993. The landlords sought to terminate the lease and remove lessees from the premises, thereby foreclosing lessees’ right to purchase. The action was initially brought on the basis of lessees’ failure to pay rent for November 1993. The suit was amended to allege additional default of the agreement, i.e., that lessees had failed to secure adequate insurance coverage and that tax liens had been filed on the premises in violation of the lease requirement for lessees to comply with “all laws.”

Pursuant to a lease term allowing 30 days to cure any alleged defaults, lessees paid the November rent prior to trial. Following the bench trial, the lower court granted the landlords possession ten days from the date of the order plus $1,275 in attorney fees and $113 for court costs. The court found that there was no past rent due but that lessees were in default “due to ‘all laws’ not being observed, factually shown by existence of tax liens” and “insurance amounts contractually required are not now provided. . . .”

Lessees maintain that “the trial court disregarded well-settled rules of contract construction by reading doubtful lease terms against [them] to create a forfeiture.” Landlords counter that this court has no choice but to affirm the trial court’s judgment because the appeal is merely an “any evidence” review and there is evidence to support the judgment.

1. At the outset, we consider the state of the record. The bench trial was not transcribed by a court reporter, but there is a de facto record of the evidence. See OCGA § 5-6-41 (g). By timely motion, the lessees petitioned the trial court to enter additional findings of fact, which was within the court’s discretion, OCGA § 9-11-52 (a) and (c), and submitted proposed findings. The landlords also proposed findings of fact in the event lessees’ motion was successful. Ultimately, the court denied the motion because at the time of trial the parties had waived findings under OCGA § 9-11-52 (a).

The court’s refusal to further detail the ruling did not negate or dilute the record accomplished by the parties’ filings, which expressly incorporated the documents of record as exhibits. The case turns on questions of law applied to the uncontroverted facts of record.

2. “To recover in a suit on a contract, the complaining party must establish both a breach of the contract and resulting damages. [Cit.]” Graphics Products Distributors v. MPL Leasing Corp., 170 Ga. App. 555 (1) (317 SE2d 623) (1984); Solon Automated Svcs. v. Pines Assoc., 156 Ga. App. 34 (1) (274 SE2d 12) (1980). Plaintiffs failed to do so, as is shown below.

(a) One month’s tardy payment of rent: Although defendants failed to pay rent for November 1993, on or before the first day of the month as provided in Paragraph 3 of the lease, they paid it prior to a triggering of default for nonpayment as provided in Paragraph 16 of the lease, and they were current with the rent at the time of trial. Consequently, the trial court found that no rent was due and made no finding of default for nonpayment of rent.

(b) Payroll tax liens: It is undisputed that prior to 1990, defendants fell behind on their payroll taxes and that the Internal Revenue Service filed federal tax liens against taxpayers Smith and Pass personally and against their partnership on all property and rights to property belonging to the taxpayers for the amount of the delinquent taxes. The trial court found that this failure to pay taxes was in violation of Paragraph 11 of the lease, in which lessees agreed to comply with “all laws, rules and orders of all federal, state and municipal governments or departments thereof, applicable to the leased premises.” (Emphasis supplied.) The nonpayment of payroll taxes cannot be read as a default under the plain language of the cited provision of the lease. Although laws providing for payroll taxes may have applicability to defendants’ business venture, those laws are not applicable to the leased premises itself. Paragraph 11 clearly distinguishes between the business and the premises in that earlier in this provision, defendants also agreed “to obtain and maintain all necessary and required licenses, permits and other applicable requirements for the operation of the type of business contemplated hereunder to be conducted on the premises.” Moreover, “[a]s a general rule the provisions of a lease will be construed against the lessor. [Cit.] Provisions in leases which result in a forfeiture of a tenant’s possessory rights will be strictly construed. [Cits.]” Peachtree On Peachtree Investors, Ltd. v. Reed Drug Co., 251 Ga. 692, 695 (1) (308 SE2d 825) (1983).

Even if the delinquent payroll taxes constituted a breach under the agreement, the landlords cannot show damage because of it. Paragraph 13 of the lease states that “the Landlord has no ownership in the Lessee’s enterprise and that this lease shall not be construed as a joint venture or partnership.” In addition, the record contains an Internal Revenue Service “Certificate of Nonattachment of Federal Tax Lien” expressly listing all seven of the tax liens and certifying that the tax liability did not and does not attach to the subject real property “with building thereon, and with furniture, furnishings and equipment therein, all comprising an ongoing business known as Sylvan Hills Learning Center” and that “it has been determined that [the Geigers] are not liable for tax under the . . . assessment.”

The landlords’ assertion that the tax liens might place the property in jeopardy in the future is without support. Furthermore, damages cannot be demonstrated by speculation, conjecture, and guesswork but must be shown with reasonable certainty. Solon Automated, supra at 35 (1).

(c) Insurance coverage: In the lease, defendants agreed to maintain insurance with minimum limits of liability of $250,000 for injury or death to one person, $500,000 for injury or death to more than one person; and $100,000 with respect to damage of property. By letter dated November 18, 1993, the landlords informed defendants that their insurance coverage was inadequate in amount and the insurer was not authorized to do business in Georgia; they demanded compliance with the lease provisions.

Defendants secured additional insurance coverage by a binder dated December 17, 1993, within the 30-day period allowed for curing a default under Paragraph 16. The fact that the landlords may not have received notice of the increased insurance until December 21 did not result in a default of the lease; what was required within the 30 days was that the insurance be procured. Even if notice outside the 30 days constituted a breach of the lease or if the acquired insurance was in some manner less than required by the letter of the agreement, there is no suggestion of damage to the landlords by the later notice or any discrepancy in coverage.

There being no valid legal basis for the issuance of the writ of possession and judgment in favor of the plaintiff landlords, it cannot stand. The denial of defendants’ motion for new trial falls as well.

Judgments reversed.

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

Andrews, Judge,

dissenting.

I respectfully dissent. Assuming arguendo that the issues raised in plaintiffs’ amendment to the complaint bestow jurisdiction on this court, see OCGA § 5-6-35 (a) (1), (3), there is no adequate record before us of the evidence considered by the trial court. There is no transcript. There is no record that the “exhibits” to which appellants refer were introduced into evidence. The parties’ various “filings” do not constitute evidence upon which this court may rely.

Appellants attempted to comply with OCGA § 5-6-41 by filing a “Narrative Transcript from Recollection by Agreement of Counsel.” This document attached as exhibits both appellants’ own “Proposed Additional Findings” and appellees’ “Proposed Additional Findings of Fact.” Appellants agreed to appellees’ “Proposed Additional Findings of Fact,” which document listed the various exhibits sought to be included in the record.

Appellants’ “agreement” to appellees’ “Proposed Additional Findings of Fact” does not comply with the requirements of OCGA § 5-6-41 for supplementing the record. Appellants may not convert appellees’ “Proposed Additional Findings of Fact,” which were not adopted by the trial court, into a stipulated-to-narrative transcript. The fact that no stipulation between the parties was ever reached is demonstrated by appellees’ objection here to the “Narrative Transcript” upon which appellants rely.

I find no authority under OCGA § 5-6-41, nor under OCGA § 44-7-56 for considering the exhibits attached to appellees’ filing as evidence here. Because this attempt to supplement the record was not properly executed, there is no evidence before us of the lease which is the basis for appellants’ appeal. Moreover, the fact that the parties referred to various documents in the argument below, does not mean that such documents are properly before us here.

Decided March 14, 1995

Reconsideration denied March 31, 1995

Christopher J. McFadden, for appellants.

Loewenthal, Jackson & Brown, Gary E. Jackson, for appellees.

“Where a party seeks to have the record on appeal supplemented, it is incumbent on him to follow the procedures set forth in OCGA § 5-6-41 (f). When this is not done, there is nothing for the appellate court to review.” (Citations and punctuation omitted.) Cox v. Fillingim, 184 Ga. App. 205 (1) (361 SE2d 65) (1987). Accordingly, given the state of the record here, the trial court’s judgment should be affirmed.

I am authorized to state that Presiding Judge Birdsong and Judge Smith join in this dissent.

Smith, Judge,

dissenting.

As Justice Oliver Wendell Holmes said in one of his most famous aphorisms, “hard cases make bad law.” This is, at least in some ways, a hard case, and with the majority’s decision, this court has made some very bad law indeed. In the not too distant future, we, or the Supreme Court, will find it necessary either to limit significantly the application of the majority opinion’s holding in Division 1 or overrule it altogether.


author: Andrews, Judge. Beasley, Chief Judge,

text:
    A94A2111, A94A2112.
    BARANCO, INC. v. BRADSHAW; and vice versa.
    (456 SE2d 592)
   Andrews, Judge.

On December 11, 1989, Lita Bradshaw filed a complaint against Baranco, Inc., d/b/a Baranco Acura (“Baranco”) setting forth one count of fraud and one count alleging violation of the Georgia Fair Business Practices Act. The case was tried to a jury and the DeKalb State Court dismissed the Fair Business Practices count. The jury returned a verdict on the fraud count in favor of Bradshaw. Final judgment was entered for $7,000 actual damages plus prejudgment interest, attorney fees of $10,000, punitive damages of $19,170, and court costs. In Case No. A94A2111, Baranco appeals; Case No. A94A2112 is Bradshaw’s cross-appeal.

There is little dispute about the facts. Viewing the evidence in the light most favorable to the verdict, it was that Bradshaw test drove an Acura Integra at the Baranco dealership in the afternoon of August 10, 1989. She told the car salesman, Marion Kelly, that she was interested in leasing the car. She stated that she would obtain the lease through her bank, First Atlanta Bank.

To facilitate the deal, Kelly had Bradshaw sign several documents including: a purchase agreement, an agreement to provide insurance for the vehicle, a “non-leased vehicle odometer disclosure statement,” a power of attorney to obtain title in her name, and a Ford Motor Credit application. The first purchase agreement contained some inaccuracies and Bradshaw was asked to sign a second form. Kelly testified at trial that Baranco’s standard practice was to use the purchase agreement form for leases, as well as for sales. Baranco’s finance manager, Michael Hale, told Bradshaw that despite the ongoing lease discussions, the documents she signed were required in case of an audit. Bradshaw admitted that she knew what she was signing when she signed the documents.

In order to hold the vehicle, Bradshaw gave Baranco a check for $7,000. Hale told Bradshaw that the check was earnest money and would not be cashed. He also told her that the check would be returned if her lease with First Atlanta was not approved. On the basis of the credit application, Kelly then obtained a credit report on Bradshaw. That report indicated that because of insufficient credit, the loan request was declined.

The record contains the corrected purchase agreement, which indicates that the total purchase price of the vehicle, including tax and other incidentals was $19,170. That document indicates that the total down payment was $7,000 and that the outstanding balance on the vehicle was $12,170.

The next morning, August 11, Bradshaw consulted her banker and was told that she could not qualify for a lease. Bradshaw testified that the banker told her that “she might be able to work out something that would be similar to a lease, and [she] didn’t discuss it much further than that.” Bradshaw recalled that the name of the arrangement was “[b]alloon financing; something to that effect.” Bradshaw admitted that at this point, she knew that she could not get a lease from her bank. At that time, the banker also advised Bradshaw that her $7,000 check to Baranco had been cashed. Bradshaw testified that upon learning this she was very angry since she had been assured that it would not be cashed. She then filled out a loan application with the bank for the outstanding amount due on the car.

Later that day, Bradshaw went back to Baranco and was told that her check was cashed as an oversight. Bradshaw explained that she was still trying to work out a lease. She then went to an insurance agency, filled out the paperwork for a six-month policy on the car, and paid for that policy.

That same night Bradshaw returned to Baranco and showed proof of insurance. Hale told her that she could not take delivery of the car unless she wrote a second check for the balance. Accordingly, she wrote a check for $12,170. Because she did not want the check cashed, Hale wrote a note which stated: “Check #005 for $12,170 is for swap only of 1st Atlanta funds.” At this point, Bradshaw believed that the transaction was complete. She drove the car off the lot and continued to drive it for the following six days.

On August 16, 1989, Bradshaw learned that her loan application would be approved by the bank, but that she would be required to put up additional collateral and that the $7,000 would be used as a down payment. Bradshaw instructed the bank to issue a stop payment on the check for $12,170 and to withdraw her loan application. She returned to Baranco and asked to return the car for her $7,000; Baranco declined. She left the vehicle on the premises.

This suit followed.

Case No. A94A2111

1. In its first enumeration of error, Baranco claims that the trial court erred by failing to grant its motions for directed verdict, for judgment n.o.v., and for a new trial since Bradshaw did not justifiably rely on any alleged misrepresentation. It contends that in the absence of this critical element, the fraud action was fatally defective. See generally OCGA § 51-6-2.

Bradshaw’s fraud claim is based on two alleged misrepresentations. First, she claims that the purchase agreement that Baranco used was fraudulent, in that it was clear that Bradshaw only wanted to lease the car. Bradshaw claims that Baranco induced her to sign this document despite knowing that she wanted to lease the vehicle. Secondly, Bradshaw contends that Baranco misrepresented to her that it would not cash her $7,000 check and that the check was being held for “auditing purposes,” when Baranco intended to cash it.

We conclude that, as a matter of law, Bradshaw was not deceived by the alleged misrepresentations since she had knowledge of the alleged falsity prior to completing the transaction. See Forsyth v. Jim Walter Homes, 177 Ga. App. 353 (1) (339 SE2d 350) (1985). Bradshaw’s actual knowledge of the alleged falsity establishes that her reliance was unjustifiable. “Misrepresentations are not actionable unless the hearer was justified in relying on them in the exercise of common prudence and diligence. [Cits.]” Doanes v. Nalley Chevrolet, 105 Ga. App. 846, 848 (1) (125 SE2d 717) (1962).

Bradshaw admitted that at the time she drove the car off the lot she was aware both that the $7,000 check had been cashed and that she would not be able to get a lease. Bradshaw understood that the bank would provide financing “similar” to a lease. Unlike most fraud actions, here Bradshaw knew all of the relevant facts prior to buying the car. The only change regarding the situation between August 11 and August 16 was that the bank supplied concrete details of the loan, which turned out to be unacceptable to Bradshaw. This turn of events does not convert Baranco’s actions into fraudulent ones. See generally Hicks v. McLain’s Bldg. Materials, 209 Ga. App. 191, 193 (2) (433 SE2d 114) (1993).

Given these facts, the trial court’s denial of the motion for directed verdict was erroneous. Because of our conclusion, we do not reach the issue of whether the documents which Bradshaw signed also bar her recovery. See generally Rivergate Corp. v. McIntosh, 205 Ga. App. 189 (421 SE2d 737) (1992).

2. Given our conclusion in Division 1, we need not address Baranco’s second enumeration.

Case No. A94A2112

In Bradshaw’s cross-appeal, she contends that the trial court erred in directing a verdict as to her Fair Business Practices Act claim. The trial court concluded that the case did not involve the “consuming public interest” but was a “private transaction.”

As in common law fraud cases, a claimant under the Fair Business Practices Act must show justifiable reliance. See Heidt v. Potamkin Chrysler-Plymouth, 181 Ga. App. 903, 904 (354 SE2d 440) (1987). As discussed above, no such reliance was shown here. For this and other reasons, we find no merit to Bradshaw’s argument.

Judgment reversed in Case No. A94A2111.

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

Judgment affirmed in Case No. A94A2112.

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

Beasley, Chief Judge,

dissenting.

I respectfully dissent to the majority’s reversal of the trial court’s denial of Baranco’s motion for directed verdict in Case No. A94A2111.

This reversal is premised upon the holding that Bradshaw completed the transaction by writing Baranco the $12,170 check after acquiring knowledge of the falsity of Baranco’s alleged misrepresentations. However, Bradshaw testified that when she wrote the $12,170 check, Baranco’s finance manager, Hale, told her that it was for auditing purposes only and that if financing suitable to her needs was not arranged, she could bring back the car and get all of her money back. Therefore, there is a material issue of fact on the question of whether Bradshaw completed the transaction between herself and Baranco when she wrote the $12,170 check.

In its first enumeration, Baranco argues that any reasonable purchaser should have realized that execution of the purchase and sale documents, together with the other events that transpired in this case, would result in a legally binding purchase and sale transaction. However, Baranco has made no showing that there was a legally binding purchase and sale transaction or that the terms of the purchase and sale documents render Bradshaw’s reliance upon Baranco’s misrepresentations unjustifiable as a matter of law. Compare Doanes v. Nalley Chevrolet, 105 Ga. App. 846, 848 (1) (125 SE2d 717) (1962) (relied upon by the majority).

In its second enumeration, Baranco argues that the evidence demands a finding that Bradshaw waived any fraud by accepting delivery of the vehicle with actual knowledge that the lease had been rejected. The evidence does not demand any such finding. Bradshaw’s evidence was that her purchase of the car was contingent upon her obtaining suitable financing in lieu of the lease.

Whether the facts and circumstances establish false representations by Baranco and justifiable reliance by Bradshaw is peculiarly within the province of the jury. Miles Rich Chrysler-Plymouth v. Mass, 201 Ga. App. 693, 698 (3) (b) (411 SE2d 901) (1991). For example, whether Baranco’s statement to her, that the unauthorized depositing of the $7,000 check was a “mistake,” was honest or a subterfuge geared to effecting a sale, is a matter of credibility. There is also evidence from which it could reasonably be inferred that, despite what Baranco told Bradshaw about holding the $12,170 check, it intended to deposit it. Bradshaw testified that about an hour after she stopped payment, Baranco’s Mr. Jones said to her: “Don’t you know, by the way, that it’s against the law in Georgia to stop payment on a check.” The jury could find that the representations made by Baranco about the nature of the transaction as it progressed over time, about the reason for requiring Bradshaw’s signature on sale documents, about the purpose and use to be made of the checks, were false and deviously misleading, a guise to effect a sale.

“Fraud is subtle in nature, and ‘slight circumstances may be sufficient to carry conviction of its existence.’ [Cits.] . . . Actionable fraud may be proved by circumstantial evidence. [Cit.] Whether the operative facts and circumstances establish actionable fraud ‘is a matter peculiarly within the province of a jury to determine.’ [Cits.]” Marshall v. W. E. Marshall Co., 189 Ga. App. 510, 513 (6) (376 SE2d 393) (1988). Except in “plain and indisputable cases,” so are questions of “the truth and materiality of representations made by a defendant, and whether the plaintiff could have protected himself [or herself] by the exercise of proper diligence.” Brown v. Techdata Corp., 238 Ga. 622, 625 (234 SE2d 787) (1977).

Decided February 15, 1995

Reconsideration denied March 31, 1995

George L. Barron, Jr., Schulten & Ward, William S. Schulten, David L. Turner, for appellant.

Jason M. Braswell, R. Glen Galbaugh, for appellee.

The verdict was reached after a full presentation of evidence concerning the dealings between the parties and a complete charge to the jury on the principles of fraud in the context of contract. There being evidence in support of the jury’s verdict, an affirmance is required under well-recognized legal principles of appellate review. See, e.g., Thompson v. Hardy Chevrolet-Pontiac-Buick, 203 Ga. App. 499, 503 (3) (417 SE2d 358) (1992).

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