author: Andrews, Judge. Beasley, Presiding Judge,

text:
    A94A1611.
    HYDE et al. v. FULTON COUNTY HOSPITAL AUTHORITY.
    (452 SE2d 517)
   Andrews, Judge.

Carl Hyde and his wife filed a malpractice action against Dr. William Nisbet Toole and the Fulton County Hospital Authority d/b/a Northside Hospital (“Northside”). Separate judgments were entered pursuant to the jury’s verdict against-Dr. Toole in the total amount of $150,000 and in favor of the hospital. Following the trial court’s denial of the Hydes’ motions for new trial, Dr. Toole tendered and the Hydes accepted payment of $150,000 in full satisfaction of the judgment. Nevertheless, the Hydes appeal from the judgment entered in favor of Northside Hospital.

Northside filed a motion to dismiss the appeal on grounds that regardless of the separate documentary judgments entered pursuant to the jury’s verdict against Dr. Toole and in favor of Northside, the sole judgment in this case has been fully satisfied.

“The case of Western Union Telegraph Co. v. Griffith, 111 Ga. 551 (36 SE 859) is controlling authority as to [the motion to dismiss]. The Griffith case holds that where, in a case against co-defendants alleged to be joint and several tortfeasors, the verdict is in favor of the plaintiff as to one of the defendants but absolves the other from liability, the plaintiff may have the election of being content with the verdict, or of moving for a new trial. If the latter is chosen and a new trial granted the entire verdict would be set aside, hence both defendants are interested in an appeal from a judgment overruling the motion and must be named defendants in error in the bill of exceptions.” Griffin v. Ross, 93 Ga. App. 407, 411 (1) (91 SE2d 815) (1956). Having accepted payment of the judgment against Dr. Toole in full satisfaction of the jury’s verdict against that defendant, the Hydes are thus estopped from appealing the judgment entered against them as to the liability of Northside Hospital.

Such conclusion is also demanded since, were the judgment in favor of the hospital reversed, on retrial Northside would be authorized to introduce the satisfaction of the prior judgment against Dr. Toole as a limitation on the amount of damages the Hydes might recover against the hospital for the same injuries. Thompson v. Hardy Chevrolet-Pontiac-Buick, 211 Ga. App. 521 (1) (439 SE2d 689) (1993). Accordingly, the appeal in this case is dismissed.

Appeal dismissed.

Johnson, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur because plaintiffs sought to hold the defendants jointly and severally liable for the injuries they alleged were due to the separate acts of negligence of defendant doctor and the hospital’s nurses. Plaintiffs requested jury charges on multiple proximate causes which jointly contributed to injuries, using the words of Suggested Pattern Jury Instructions (3rd ed. 1991), pp. 231-232, and joint and several liability of joint tortfeasors, citing Phillips v. Tellis, 181 Ga. App. 449 (352 SE2d 630) (1987).

These charges were given, and the hospital objected. It contended that “the evidence has been that there was no concert of action between the action of the nurses and the actions of the doctor . . . the actions of the nurses did not contribute directly or indirectly with anything Doctor Toole did.” Thus, argued the hospital, the charges were not adjusted to the facts of this case. Nevertheless, plaintiffs prevailed on this point.

The verdict form, about which the court recited no special instructions, gave eight choices, i.e., verdicts for each plaintiff against each defendant in blank amounts, and for each defendant against each plaintiff. The jury chose four, i.e., for each plaintiff against Dr. Toole in sums certain, and for defendant hospital against each plaintiff. Since the theory presented allowed the return of all the damages against only one defendant, and plaintiffs have been paid that total amount, they are precluded from appealing from that part of the judgment with which they are dissatisfied and retaining that part under which they were fully paid.

It is true that plaintiffs alleged that Dr. Toole’s negligence was three failed surgeries, as well as failure in subsequent diagnosis and treatment, and that Northside’s alleged negligence was the nurses’ failure properly' to recognize, assess and treat the problem which appeared several days post-operatively, that is to say, serial acts of negligence which at separate times proximately caused the injuries which left Mr. Hyde in his ultimate, worsened condition. In this respect, the case differs from Thompson v. Hardy Chevrolet-Pontiac-Buick, 211 Ga. App. 521 (439 SE2d 689) (1993), where it was alleged that the separate acts of negligence combined to proximately cause a motor vehicle wreck and consequent injuries. It is easier to see in that case that, because the infliction of injuries occurred at one moment in time, the liability of those whose negligent acts proximately caused the resulting same injuries was joint and several. Yet plaintiffs Hyde cannot avoid the fact that their case was presented on the theory of joint and several liability, the jury was not instructed to return separate damages, for different injuries, against each defendant it found liable. This is confirmed in the pretrial order, which set out plaintiffs’ contention that the nurses’ negligence “combined with” the doctor’s negligence to cause the injuries, which were set out with particularity.

Decided November 14, 1994

Reconsideration denied December 19, 1994

England, Weaver & Kytle, J. Melvin England, for appellants.

Meadows, Ichter & Trigg, James D. Meadows, Powell, Goldstein, Frazer & Murphy, Randall L. Hughes, for appellee.

So the result is the same, and the doctrine of collateral estoppel or issue preclusion applies. As in Thompson, the single amount of damages (combining the amounts for each plaintiff) was the jury’s assessment of what plaintiffs could recover from anyone. Since they have been paid that amount, they could recover no more even if we reversed the judgment in favor of the hospital on the sole enumeration of error raised. That enumeration relates only to the liability of the hospital, it is true, as it complains of the admission of certain testimony on the standard of care for nurses. But if a new trial were held with the hospital as the sole defendant and that evidence excluded, and the hospital were found liable, the damages would be fixed at $150,000. The hospital might then be subject to a claim from the doctor for contribution, OCGA § 51-12-32, but that is of no concern to plaintiffs.

Having asked for a joint and several verdict, plaintiffs would have had to seek a new trial as to both defendants, in order to avoid the amount of total damages fixed by the jury against one of them. For a list of possible scenarios when there are multiple defendants, see Posey v. Med. Center-West, 257 Ga. 55 (354 SE2d 417) (1987).


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A94A1670.
    BRANDON v. MAYFIELD.
    (452 SE2d 181)
   Andrews, Judge.

Brandon appeals from the grant of Mayfield’s motion for summary judgment and denial of her motion for partial summary judgment. Brandon was sued by Humana Hospital for sums owed as the result of surgery on her left knee in June 1991. Brandon then filed her third-party complaint against her employer at the time, Mayfield d/b/a Family Practice of Lithonia (Mayfield). Cross-motions for summary judgment were filed and the court denied Brandon’s and granted Mayfield’s, concluding that Mayfield had breached no duty to Brandon regarding the provision of group medical coverage.

The following facts are not contested. Brandon had surgery on her left knee in 1983. Thereafter, she worked for Mayfield as a licensed practical nurse and the director of nursing from September 1987 until December 1991. On October 19, 1989, she filled out an application for group health insurance, to be provided by Mayfield at no cost to employees. Anthem issued a policy and Brandon and the other employees received booklets explaining the provided coverage as well as insurance cards. This policy continued in force until its termination by Mayfield, effective at midnight on April 30, 1991.

On March 11, 1991, prior to cancellation of Anthem coverage, Brandon, along with the other employees of Mayfield, filled out applications for group health insurance with Metropolitan Insurance Company (Met). Mitchell, Met’s agent, was present at the doctor’s office for the purpose of taking the applications and discussing any questions with the employees. Brandon acknowledges filling out the Met application, but states that she was not told the ending and beginning dates of the respective policies. On April 18, 1991, Brandon sustained an injury to her left knee for which she sought treatment initially from a doctor in Mayfield’s group practice.

Met’s group health coverage became effective on May 1, 1991. On May 2, 1991, Mitchell brought the insurance cards and policy booklets to Mayfield’s employees, including Brandon, for the Met coverage.

On June 7, 1991, Brandon had surgery on her left knee at Humana. Her post-operative diagnosis was a “torn [medial] meniscus.” Her 1983 operation had also been for this condition. Met refused to cover the 1991 operation, contending it was a pre-existing condition which had not been revealed on the application, based either on the 1983 surgery or the April 18, 1991 injury. Mitchell, Met’s agent, stated in his affidavit that all employees, including Brandon, were told that all pre-existing conditions revealed on their application would be covered by Met. (Emphasis supplied.) As issued, however, the Met policy included in the record states that “MEDICAL CARE BENEFITS FOR PRE-EXISTING CONDITIONS — No benefits shall be payable for any services rendered during the first 12 months of coverage for any sickness or injury the symptoms of which were evident during the 12 months immediately preceding the effective date of the Employee’s coverage. Symptoms shall be considered as evidence if there were clear, distinct symptom or symptoms of the . . . injury demonstrable prior to the effective date of the Employee’s coverage and which in the opinion of a legally qualified physician, would (1) indicate that the . . . injury probably began and manifested itself before such effective date. . . .”

Anthem refused to pay for the June 1991 surgery, stating that “Your employer had cancelled his group coverage when you received this care. For this reason, it is not covered.”

In her third-party complaint, Brandon asserted that her employment contract was breached because of Mayfield’s failure to inform her of termination of the Anthem coverage and by cancelling her coverage with Anthem “so as to deprive [Brandon] of rights to benefits under that policy.” Further, she asserted that Mayfield did not notify her of changes in her health insurance coverage from Anthem to Met within 30 days of April 30, 1991, as required by OCGA § 33-24-21.1 (e). Mayfield’s motion for summary judgment addressed both grounds and was granted.

1. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. [Cit.] A [third-party] defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.]” (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

We note first that the trial court, instead of viewing the facts with all inferences in Brandon’s favor on Mayfield’s motion, has erroneously proceeded to make credibility and other factual decisions. This, however, does not preclude our consideration of the record and our de novo determination of whether summary judgment in favor of Mayfield was appropriate or whether, instead, genuine issues of material fact remain for jury resolution. Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (1) (392 SE2d 535) (1990).

2. OCGA § 33-24-21.1, “Group accident and sickness contracts; conversion privilege and continuation right provisions,” was enacted in 1986 and applied to all policies issued after July 1986. Prior to that enactment, however, as acknowledged by Mayfield, there existed and still exists in Georgia certain fiduciary duties owed by the employer to the employee regarding group health insurance.

In Dawes Mining Co. v. Callahan, 246 Ga. 531 (272 SE2d 267) (1980), employee Callahan began working for Dawes in 1957 and started participating in the employer-provided group health insurance a few years later.

“In 1975, without consulting the employees, Dawes changed coverage from the existing insurer to another insurance company. The employees were told of the change and to come to the office to sign up with the new insurer. The local representative of Dawes and a representative of the new insurer were present in the office. The insurer’s representative said the coverage was the same as under the former policy and said nothing about exclusion of coverage for pre-existing illnesses. Callahan . . . could not read. . . .” (Footnotes omitted.) Dawes, supra at 532. In fact, the new policy had a pre-existing condition exclusion requiring no treatment of such a condition for 90 days before coverage would begin under the new policy. During the 90 days, Callahan’s wife became ill with a pre-existing condition and eventually died. When the new insurer refused coverage due to this clause, Callahan sued Dawes to recover the expenses of his wife’s illness.

The Supreme Court upheld the jury verdict in favor of Callahan and concluded that, after insurance is procured by an employer, that employer acts as an agent of the insurer for purposes of determining which employees are eligible for coverage, employed full-time, etc. “However, in selecting a group insurer, in selecting a policy, in selecting coverages to be afforded by the insurer, the employer is negotiating with the prospective insurer; there is no contract in force; and the employer cannot be the agent of the insurer. It has been said that ‘ “When procuring the policy (and) obtaining applications of employees . . . employers act not as agents of the insurer but for their employees or for themselves.” ’ Thigpen v. Metropolitan Life, [57 Ga. App. 405 (1) (195 SE 591) (1938)]; [cit.]” Dawes, supra at 534.

Noting Dawes’ defense that Callahan could have discovered the change if he had read the new policy, the Supreme Court instead relied on OCGA § 23-2-58 to recognize a duty of utmost good faith due from employer to employee.

“Where a confidential relationship is found to exist between employer and employee or principal and agent, the duty to read does not bar recovery against the employer or agent. [Cits.] We are persuaded by these decisions and find that the employer owed the employee a duty which cannot be ignored simply because the employee, pursuant to instruction, signed the application for insurance without reading the new master policy.

We therefore hold that when changing a group policy insuring contributing employees and obtaining the applications of those employees, the employer acts as an agent of the employees, [cits.] and as such is under a duty to notify the employees of differences between the old and new policies and of any rights the employees may have to continue the old insurance on an individual basis. We hold further that where this duty is breached, an employee can recover such damages as result from the difference in coverage.” (Emphasis supplied.) Dawes, supra at 535-536.

Brandon’s affidavit in support of her motion for summary judgment states that neither “Mayfield nor anyone else notified me of the changes in coverage under the p[o]licy with Met . . . that the Met replacement. . . would not cover my pre-existing injury.” A review of the record reveals that Mayfield himself was under the impression that the Met policy would cover pre-existing conditions, though the policy, quoted supra, clearly does not.

This factual dispute, in and of itself, is sufficient to preclude the grant of summary judgment to Mayfield based on breach of fiduciary duty discussed in Dawes.

Further, the case relied upon by the trial court, Jenkins v. Hogan, 206 Ga. App. 294 (424 SE2d 898) (1992), is factually inapposite. There, the employee was terminated and removed from the group insurance policy. The employee had the booklet for the policy which included rights to conversion, etc. The employer did not procure new group insurance upon the expiration of that policy’s term. Therefore, the employer had no obligation to apprise her of any changes between the two nor did the employer misrepresent any provisions of the prior policy and misrepresent any of her rights thereunder.

The present situation is more comparable to A & P Transp. v. Dean, 212 Ga. App. 351 (441 SE2d 818) (1994) and City of Brunswick v. Carney, 187 Ga. App. 634 (371 SE2d 201) (1988). In Dean, the employee had given his insurance application to A & P for processing. Because A & P was considering changing insurers, however, the application was forwarded only to the potential new insurer and not the current one. When the new one declined to insure the group, Dean was left without coverage for his wife who had been hospitalized in the interim. He was allowed to recover under Dawes. In Carney, the employee was seriously injured and unable to return to work while her employer was providing group coverage by Sentry. Because of her inability to return, the employer terminated her in April 1984, after which it allowed the Sentry policy to lapse and obtained a new carrier under which she was not insured. Again, after a jury trial, recovery from the employer was allowed. See Calhoun v. Kut-Kwick Corp., 172 Ga. App. 511 (323 SE2d 699) (1984).

Decided December 2, 1994

Reconsideration denied December 19, 1994.

Cheeley & King, John P. Cheeley, Joseph E. Cheeley III, for appellant.

C. Alan Mullinax, for appellee.

Therefore, considering the factual disputes and the trial court’s inappropriate reliance on Jenkins, the grant of summary judgment to Mayfield on the Dawes claim was error.

3. The ruling of the trial court on the claim asserted under OCGA § 33-24-21.1 is also based on improper resolution of contested facts, e.g., including when Brandon became aware of the Met coverage, whether there were any appreciable differences in the Anthem and Met policies, whether such differences were explained, whether she had participated in deciding to obtain the new coverage, and what she and other employees had been told by Mitchell of Met about preexisting conditions.

Therefore, this portion of the court’s order is also reversed.

4. There is another procedural impediment to the grant of May-field’s summary judgment. Mayfield’s motion for summary judgment was filed on October 5, 1993. The affidavit of Met agent Mitchell was not filed until November 23, 1993. Hearing on Mayfield’s motion had been set by rule nisi for December 1, 1993. In a supplemental response to Mayfield’s motion, filed December 1, 1993, Brandon objected to consideration of the late filed affidavit. Brandon had previously filed a motion to strike portions of Mayfield’s affidavits which she contended, properly, were hearsay and inadmissible.

Since Mayfield’s supplemental affidavit was not filed 30 days before the time fixed for the hearing, OCGA § 9-11-56 (c), it was not properly considered by the trial court. Corry v. Robinson, 207 Ga. App. 167, 170 (2) (427 SE2d 507) (1993); Gunter v. Hamilton Bank of Upper East Tenn., 201 Ga. App. 379, 381 (411 SE2d 115) (1991).

Judgment reversed.

Beasley, P. J., and Johnson, J., concur.

       Discussed below in Division 4.


author: Smith, Judge. McMurray, Presiding Judge,

text:
    A94A1679.
    WILLIAMS v. SOUTH CENTRAL FARM CREDIT, ACA et al.
    (452 SE2d 148)
   Smith, Judge.

This litigation arose from loans and corresponding deeds to secure debt executed by Loron E. Williams, Jr., in favor of the predecessors in interest of South Central Farm Credit, ACA (“Farm Credit”). Williams began purchasing land in 1946, financing his purchases with mortgages and security deeds to individuals, banks and other entities. In 1987 he filed for relief under Chapter 11 of the United States Bankruptcy Code. A reorganization plan was provisionally confirmed in 1988, discharging approximately half of Farm Credit’s claim and providing for periodic payments to retire the remainder of Farm Credit’s claim. When Williams failed to make those payments, Farm Credit and Williams renegotiated the plan, and the resulting settlement agreement was approved by the bankruptcy court. However, Williams also failed to make the payments provided under the settlement agreement. Farm Credit notified Williams of the acceleration of his indebtedness and gave notice of foreclosure and sale to take place on April 7, 1992.

On April 3, 1992, Williams filed a second bankruptcy proceeding, which he testified was for the purpose of stopping the foreclosure. After an emergency hearing held on April 6, 1992, the bankruptcy court determined Williams had failed to abide by the terms of the settlement agreement, terminated the automatic stay of bankruptcy with respect to Farm Credit, and authorized Farm Credit to proceed with the foreclosure. On the morning of the foreclosure sale, Williams filed a petition to enjoin the sale in Crisp County Superior Court. The petition was denied, and the property was sold to Brooks County Land Partnership.

Williams then filed this action in Crisp County Superior Court seeking injunctive relief and damages against Farm Credit, the partners of Brooks County Land Partnership, Farmers & Merchants Bank, The Citizens Bank, Del-Cook Lumber Company, and The Commercial Bank of Thomasville. After his prayer for an interlocutory injunction was denied, Williams dismissed all defendants except Farm Credit and filed a second amended complaint naming Farm Credit and one of its officers as defendants. The amended complaint alleged wrongful foreclosure on his property and sought compensatory damages for loss of equity in the property, punitive damages and attorney fees. After extensive discovery, the trial court denied Williams’s motion for summary judgment and granted defendants’ motion for summary judgment. Williams appeals.

1. In his first enumeration of error, Williams contends the realty should not have been advertised and sold as a single unit. Citing decisions from other jurisdictions, Williams urges the adoption of a rule that distinct parcels of land secured by separate deeds to secure debt should be advertised and sold separately. However, we need not address that question on the facts presented here. The four deeds to secure debt at issue do not each refer to a distinct and separate tract of realty. The same tracts of land are described in more than one deed. Moreover, the deeds were successive deeds executed in favor of Farm Credit’s predecessors in interest over a period of eleven years; two deeds expressly refer to priorities established on the same tracts of property by earlier deeds. This enumeration is without merit.

2. Williams next contends the trial court should not have granted summary judgment to defendants because there was evidence their pre-foreclosure conduct “chilled” the sale, causing the realty to be sold at a grossly inadequate price. He first contends Farm Credit and its officer chilled the sale by fraudulently leading him to believe it would accept delinquent payments or a deed in lieu of foreclosure. However, these contentions were fully addressed in the April 6, 1992 emergency hearing before the bankruptcy court. At the hearing, Williams testified at length to the alleged negotiations regarding the payment of the delinquent installments as well as the alleged agreement to accept a deed in lieu of foreclosure. The bankruptcy court concluded Williams had failed to abide by the terms of its final order incorporating the parties’ settlement agreement and allowed the foreclosure sale to proceed. These issues were litigated and necessarily decided by the bankruptcy court, and Williams is barred by the doctrine of collateral estoppel from reasserting them here. Sorrells Constr. Co. v. Chandler Armentrout & Roebuck, P.C., 214 Ga. App. 193, 194 (447 SE2d 101) (1994). Because the bankruptcy court ruled that Farm Credit had a right under the terms of the court-approved settlement agreement to require timely payments and to proceed to foreclosure, Williams cannot now complain that this conduct chilled the sale. There can be no liability for the exercise of an absolute right. See generally Automatic Sprinkler Corp. v. Anderson, Inc., 243 Ga. 867 (257 SE2d 283) (1979) (no breach of implied covenant of good faith); Systems Engineering Assoc. v. Peachtree Corners, Inc., 179 Ga. App. 48 (345 SE2d 136) (1986) (no liability based on fraud); J. C. Penney Co. v. Davis & Davis, Inc., 158 Ga. App. 169, 170-171 (1) (279 SE2d 461) (1981) (no tortious interference with contract). Even were this not the case, Williams has not shown, as he must, a causal connection between this conduct and any chilling of the sale. Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327, 329-331 (1) (270 SE2d 867) (1980).

Williams next contends Farm Credit represented to a prospective purchaser that the property would be sold for ten percent down, with the balance due in thirty days. He alleges Farm Credit’s later withdrawal of this representation chilled the sale. However, assuming without deciding such a representation was indeed made and relied upon by the prospective purchaser, this does not establish that the sale was chilled. Williams must also establish that the particular conduct complained of caused the property to be sold for a grossly inadequate price. Kennedy, supra. Here, though, the prospective purchaser testified the property ultimately sold for more than he was prepared to pay for it. It is apparent, therefore, that any belief or conduct on the part of this witness did not cause the property to be sold for a grossly inadequate price.

Williams also contends three errors in the advertisement for the sale had a chilling effect. The advertisement consisted of ten closely printed columns published in the Cordele Dispatch on four successive occasions. The three errors were two substitutions of “southeast” for “southwest” in describing an outparcel, and the omission of one line of text referring to a land lot identified immediately below. The errors appeared in the first two publications of the advertisement but were corrected in the third and fourth publications. Each advertisement referenced the deeds to secure debt, giving the book and page number in the records of Crisp County.

If a notice or advertisement of a foreclosure sale under power does not substantially meet the legal requirements, the sale should be set aside. However, in order to void the sale, the irregularity or deficiency in the advertisement must contribute to chilling the price on the sale of the property. Walker v. Northeast Production Credit Assn., 148 Ga. App. 121, 122 (2) (251 SE2d 92) (1978). Errors that would not confuse the bidding intentions of any potential bidder of sufficient mental capacity to enter a binding contract for the sale of the real property do not show a chilling of the sale so that a fair market value bid was not obtained. Tarleton v. Griffin Fed. Savings Bank, 202 Ga. App. 454, 455 (2) (b) (415 SE2d 4) (1992). Moreover, reference in a foreclosure advertisement to extrinsic evidence such as official records constitutes “a sufficient key” to correct a typographical error and show the precise location of the property. Penn Mut. Life Ins. Co. v. Donalson, 177 Ga. 84, 85, hn. 4 (169 SE 337) (1933) (reference to recorded security deed). See also Shantha v. West Ga. Nat. Bank, 145 Ga. App. 712, 713 (244 SE2d 643) (1978) (reference to unrecorded plat).

Williams’s witness acknowledged the reference in the advertisements to the deeds to secure debt. Also, he did not examine those deeds or any other extrinsic evidence to determine whether the errors were cured. There was no evidence that any prospective purchaser was confused by three errors in two out of four publications of the advertisement. Williams stated in aft interrogatory response that he knew of no prospective purchasers who were confused by the advertisement. The only testimony presented was that the prospective purchasers had no problem determining the property offered for sale through the use of official records such as tax plats and maps. Again, Williams has failed to show a causal connection between the alleged wrongdoing and any chilling of the sale. As the trial court observed, the only evidence of any chilling of the sale appeared to be Williams’s own conduct in filing petitions in the bankruptcy court and the superior court immediately before the sale, leading prospective purchasers to believe the sale might not take place. This enumeration of error has no merit.

3. In his remaining enumerations of error, Williams contends Farm Credit’s assignment as collateral of two of the four deeds to secure debt rendered the advertisement and sale null and void and destroyed Farm Credit’s right to attorney fees. These contentions have no merit. Williams acknowledges that the deeds to secure debt had been reassigned to Farm Credit at the time of the sale. Williams contends, however, that the deeds should have been reassigned to Farm Credit before advertisement of the sale. A similar contention was raised in Scroggins v. Harper, 138 Ga. App. 783 (2) (227 SE2d 513) (1976). Scroggins, the debtor, contended that Harper, the lender, had assigned his security interest as collateral to a bank and thus had no right to foreclose it. Id. at 785. This court disagreed, noting the assignment was for the purpose of collateral and that the security deed was reassigned to the lender “prior to the sale.” Id. at 786. Furthermore, Farm Credit’s assignment expressly incorporated by reference a reservation of the right to exercise the power of sale. These enumerations of error have no merit.

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

“The foreclosing party is not a guarantor or insurer of satisfactory results for a defaulting debtor as to market price. Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327, 331 (270 SE2d 867). Its obligation is to sell according to the terms of the security instrument, in good faith, in compliance with the statutory requirements, and to obtain the highest amount possible by such a sale. Id.” Shingler v. Coastal Plain Prod. Credit Assn., 180 Ga. App. 539, 543 (4) (349 SE2d 785). Breach of this duty is a tort compensable at law. Clark v. West, 196 Ga. App. 456, 457 (395 SE2d 884).

In the case sub judice, plaintiff has presented evidence that the price realized on the foreclosure was grossly inadequate, amounting to approximately one-half the true market value of the property and a shortfall of perhaps $5,000,000. However, as this is a wrongful foreclosure claim, plaintiff’s burden extends beyond a showing of inadequate price as he must also demonstrate that the power of sale was exercised other than in good faith. Threadmill, Ltd. v. First Union Nat. Bank of Ga., 207 Ga. App. 688, 689 (1) (428 SE2d 685); Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327, 331 (1) (270 SE2d 867).

One of the circumstances of the sale which plaintiff maintains was improper is the sale of many non-contiguous parcels of land, totaling several thousands of acres, as one unit. Recognizing an absence of direct Georgia authority, plaintiff has cited the cases of several other jurisdictions for the proposition that such an en masse sale of property is inconsistent with the foreclosing party’s duty to adopt a procedure intended to obtain the highest amount possible by such sales. See for example Garris v. Fed. Land Bank of Jackson, 584 S2d 791, 793-794. If we may not take notice of such as a general rule of economics, there is ample evidence that the offering of the many non-contiguous parcels in this case separately or in smaller lots would have opened the field to a greater number of bidders who would have offered higher prices.

Defendants have responded by relying upon the contractual language of the deeds to secure debt which authorize defendant Farm Credit to sell “all or any part of said land.” Such language has been construed to permit the secured party to sell the pledged property, in its sole discretion, either in parcels or en masse. Wardlaw v. Wood-ruff, 175 Ga. 515, 516 (7) (165 SE 557); Doyle v. Moultrie Banking Co., 163 Ga. 140, 142 (135 SE 501); Dutton v. Faulk, 159 Ga. 736 (1) (126 SE 718). Each of these cases involves a single security deed.

There are also cases holding that where property is sold under authority of a single security deed, it need not be sold in parcels absent a provision in the deed requiring such a sale. See Harwell v. First Fed. Savings &c. of Winder, 245 Ga. 757 (2) (267 SE2d 229); Marett Properties, L.P. v. Centerbank Mtg. Co., 204 Ga. App. 265 (419 SE2d 113); Marion G. Davis, Inc. v. Cameron-Brown Co., 177 Ga. App. 646 (340 SE2d 216); Classic Enterprises v. Continental Mtg. Investors, 135 Ga. App. 105 (1) (217 SE2d 411).

In the present case there are four security deeds. As noted by the majority, some tracts of land are described in more than one deed. However, none of the security deeds refers to all of the parcels. The simultaneous foreclosure of multiple security deeds upon the same property is permitted, Williams v. Joel, 89 Ga. App. 329 (3) (79 SE2d 401), and of course, several properties may be referenced by a single security deed. However, I find no authority for the procedure used by defendants of aggregating for sale different properties which are to be sold under the authority of multiple security deeds. To permit such a procedure is to make a mockery of the foreclosing party’s obligation to conduct the sale in a manner intended to bring the highest price. Recognizing that our case law is clear that in some respects Georgia does not aggressively demand procedures which attempt to maximize the proceeds from foreclosure sales, there still must be limits set in regard to the extent which foreclosing parties may depress prices by aggregating properties for sale.

Decided November 29, 1994

Reconsideration denied December 19, 1994

Warren S. Shulman, Bemon G. McBride III, for appellant.

Martin, Snow, Grant & Napier, John T. McGoldrick, Jr., Kirbo & Kendrick, Bruce W. Kirbo, Sr., for appellees.

In my view, the combined sale of all of the properties referenced in these four deeds as one unit was improper and when considered in conjunction with the inadequate price realized on the sale constitutes a just basis for an award of damages on plaintiff’s wrongful foreclosure claim. Therefore, I cannot agree with Division 1 of the majority opinion and must respectfully dissent. I would hold that, where multiple security deeds are involved, the foreclosing party’s duty to maximize the proceeds of the sale requires that the property be offered in parcels which maximize the proceeds of the sale, although the parameters of this rule must be limited by the foreclosing party’s rights to offer en masse the property referenced in a single security deed. This supposition has been seen in the confirmation case of First Nat. Bank of Louisville, Kentucky v. Childress-Ross Properties, 189 Ga. App. 765 (377 SE2d 533), and while the issues in the case sub judice are somewhat different, this earlier case is at least consistent with the rule I propose.

       Because of our disposition of this appeal, we need not consider whether Farm Credit’s officer properly was added as a party in the amended complaint. See OCGA §§ 9-11-15 (a); 9-11-21.

       There were also questions raised as to whether local tax liens and other encumbrances placed on the property as a whole could be apportioned among smaller parcels.


author: Pope, Chief Judge.

text:
    A94A1683.
    FAIRFIELD PLANTATION ACTION COMMITTEE, INC. v. PLANTATION EQUITY GROUP, INC. et al.
    (452 SE2d 147)
   Pope, Chief Judge.

Fairfield Plantation is a large residential community with lakes, a marina, a recreation center, a club house, a golf course, tennis courts and swimming pools. Defendant Plantation Equity Group, Inc. (“PEGI”) is a corporation formed to purchase and operate the community’s amenities when the developer fell into financial difficulties, and defendant Fairfield Plantation Property Owners Association, Inc. (“POA”) is an association which collects mandatory monthly dues from all property owners, maintains the roads, fire department and security for the community and generally protects the interests of the community as a whole. Plaintiff Fairfield Plantation Action Committee, Inc. (“PAC”) is a sub-group of property owners unhappy with the transfer of the amenities to PEGI and the fact that POA has amended various covenants to allow PEGI to make mandatory assessments on some property owners for the upkeep of the amenities, even if those property owners do not use the amenities. PAC, which was an unincorporated association when this lawsuit began, seeks to represent a class of all property owners at Fairfield Plantation, and asks the lower court (1) to nullify the transfer of the amenities to PEGI; (2) to nullify the amendments to the covenants allowing PEGI to collect mandatory assessments from some property owners; and (3) to allow property owners who have paid such mandatory assessments to PEGI to recover those payments. Although a hearing was held on the question of class certification, the trial court did not rule on this issue. Instead, it dismissed PAC’s action on the ground that an unincorporated association could not bring a legal action.

1. Plaintiff first argues that the trial court improperly dismissed its complaint without giving it an opportunity to be heard on the capacity-to-sue issue. Defendant POA first moved to dismiss on this ground in February 1993; it renewed its motion to dismiss on this ground on November 4, 1993; and the trial court issued its order dismissing the action on December 17, 1993. Plaintiff had plenty of opportunity to respond, but failed to do so. See Superior Court Rules 6.2, 6.3. “Under the Rules, service of a motion on an opposing party serves as notice to that party that the court will take the matter under advisement after 30 days (the time during which the opposing party may file a response to the motion) after service of the motion has passed.” Jacobsen v. Muller, 181 Ga. App. 382, 383 (2) (352 SE2d 604) (1986). As more than 30 days had passed after service of the motions challenging plaintiff’s capacity to sue, the trial court did not err in considering and ruling on the motion.

Decided November 29, 1994

Reconsiderations denied December 14, 1994 and December 19, 1994.

Kunz & Associates, Robert A. Kunz, Lynda L. Moser, for appellant.

Sutton & McCreary, Timothy A. McCreary, Price & Pyles, Sam Price, Kurt M. Thomas, for appellees.

2. However, we agree with plaintiff that the trial court erred in concluding that plaintiff did not have capacity to bring suit when it initially filed its complaint as an unincorporated association. “An action may be maintained by and in the name of any unincorporated organization or association.” OCGA § 9-2-24. The trial court relied on two cases in holding otherwise: O’Jay Spread Co. v. Hicks, 185 Ga. 507 (195 SE 564) (1937) and Embassy Row Assoc. v. Rawlins, 162 Ga. App. 669 (292 SE2d 541) (1982). The former case predated the statute, which was enacted in 1959, and the latter erroneously relied on the former without noting the intervening enactment. Because Embassy Row is contrary to the statute, it must be overruled.

3. Although the parties briefed the questions of class certification and whether plaintiff is a real party in interest, the trial court did not decide these questions, and we decline to address them for the first time here. We note, however, that a ruling for defendants on either or both of these issues would not warrant dismissal of plaintiff’s complaint. See Equitable Life Assurance Society v. Tinsley Mill Village, 249 Ga. 769, 772 (2) (294 SE2d 495) (1982) (after finding plaintiff is not a real party in interest, trial court must allow reasonable time for joinder or substitution of real party in interest before dismissing action).

Judgment reversed.

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


author: Blackburn, Judge.

text:
    A94A1734.
    MANN et al. v. ATLANTA CASUALTY COMPANY.
    (452 SE2d 130)
   Blackburn, Judge.

This is an appeal from the trial court’s dismissal of appellant/ plaintiffs Necola and James Mann’s complaint against appellee Atlanta Casualty Company, Necola Mann’s uninsured motorist carrier, for damages arising from an automobile collision which occurred July 22, 1991.

The complaint was filed on July 19, 1993, and on that same date, service of process was unsuccessfully attempted on William McFarland, Jr., the named defendant, who had moved. Plaintiffs hired two skip tracers to locate McFarland, and he was subsequently found in Harris County, Georgia, where he was served on August 13, 1993, with the summons and complaint by a purported private process server hired by plaintiffs.

Pursuant to OCGA § 33-7-11 (d), Atlanta Casualty was properly served with a copy of the complaint on July 21, 1993. On August 13, 1993, Atlanta Casualty answered in its own name, asserting several defenses, including the expiration of the applicable statute of limitation.

During the discovery process, Atlanta Casualty advised plaintiffs, by letter dated December 23, 1993, that there had been a lack of service upon the defendant as the process server hired by plaintiffs had never been appointed by the trial court to serve the summons and complaint as required by OCGA § 9-11-4 (c). On January 4, 1994, plaintiffs forwarded the pleadings and discovery in this matter to the Harris County sheriff, who served the defendant on January 19, 1994.

On January 20, 1994, Atlanta Casualty filed its motion to dismiss plaintiffs’ complaint, based in part upon a lack of service upon the defendant/tortfeasor and a lack of due diligence on the part of the plaintiffs in not serving defendant for a period of over five months after the expiration of the statute of limitation. The trial court considered plaintiffs’ affidavit in response, and because of such consideration, converted the motion into one for summary judgment, which the trial court granted. Plaintiffs’ appeal followed.

On appeal, the Manns assert in a single enumeration of error that the trial court erred in converting the motion to dismiss to a motion for summary judgment, erred in granting the motion, and erred in dismissing the complaint against Atlanta Casualty and McFarland. While the Manns’ enumeration contains three separate errors in violation of OCGA § 5-6-40, we will exercise our discretion to address plaintiffs’ enumerations of error to the extent it is necessary to do so to resolve this appeal. See Meeks v. Cason, 208 Ga. App. 658 (1) (431 SE2d 407) (1993). The Manns do not present any argument or citation of authority on the trial court’s allegedly erroneous conversion of the motion to dismiss to one for summary judgment, and consequently, this alleged enumerated error is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). Jabaley v. Jabaley, 208 Ga. App. 179 (2) (430 SE2d 119) (1993).

The Manns erroneously assert that Atlanta Casualty, by answering the complaint in its own name, waived its right to assert the defenses of insufficiency of process and statute of limitation on behalf of McFarland. The defense of insufficiency of process is waived if not asserted either by motion before or at the time of pleading or in an answer. See Morgan v. Morgan, 193 Ga. App. 302 (3) (388 SE2d 2) (1989). However, insufficiency of process is not an issue in this case because service of process has been perfected upon McFarland, albeit outside the applicable statute of limitation. “Thus, no ground exist[s] for any objection to the method of service. . . . Where an action is filed within the applicable limitation period but is not served upon the defendant within five days thereafter or within the limitation period, the plaintiff must establish that he acted in a reasonable and diligent manner in attempting to insure that proper service was effected as quickly as possible; and if he is guilty of laches in this regard, service will not relate back to the time of filing of the complaint for the purpose of tolling the statute of limitation. The plaintiff has the burden of showing that due diligence was exercised. Ordinarily, the determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” (Citations and punctuation omitted.) Starr v. Wimbush, 201 Ga. App. 280, 281 (1) (410 SE2d 776) (1991).

In addition, “[w]hile the bar of the statute of limitation is a personal defense, and as a general rule can be interposed only by the party in whose direct favor it operates, it may be invoked by his privies in law or in contract. Inasmuch as [Atlanta Casualty] had a right under the Uninsured Motorist Statute to file all available defenses in the action, either in its name or in the name of the defendant, it is a privy in law as to this action, and is entitled to invoke the statute of limitation.” (Citations omitted.) Railey v. State Farm Mut. Auto. Ins. Co., 129 Ga. App. 875, 880 (3) (201 SE2d 628) (1973).

In order to recover benefits under the uninsured motorist policy issued by Atlanta Casualty, the Manns must, as a condition precedent, recover a judgment against McFarland, the uninsured motorist. McCrary v. Preferred Risk Mut. Ins. Co., 198 Ga. App. 727, 728 (402 SE2d 519) (1991). The action against McFarland is only viable if the Manns can show that the applicable limitation period was tolled at the time service was perfected belatedly upon McFarland. Contrary to the Manns’ contentions, the service attempted on McFarland on August 13, 1993, was a nullity, as the process server was not appointed by the trial court as required by OCGA § 9-11-4 (c), and “service under this [statute] must be made as provided.” Bible v. Bible, 259 Ga. 418, 419 (383 SE2d 108) (1989). See also Denny v. Croft, 195 Ga. App. 871 (2) (395 SE2d 72) (1990).

It was plaintiffs’ duty to insure that the person retained to effectuate service was authorized by law to do so. This is especially true where the plaintiffs went outside of governmental service authorities and sought the services of a private individual. If Atlanta Casualty, after service upon it, was able to ascertain that the process server had not been duly appointed, why could not the plaintiffs, who had the duty to do so, have insured proper authority of the agent they selected to effectuate service on the defendant? We cannot say that the trial court abused its discretion in granting defendant’s motion for summary judgment, based upon plaintiffs’ lack of due diligence in serving the defendant.

Decided November 22, 1994

Reconsideration denied December 19, 1994

Paul C. Parker & Associates, William S. Sarandis, William Rhymer, Philip L. Westee, for appellants.

Lay field, Rothschild & Morgan, W. Donald Morgan, Jr., for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A1738.
    HINTON v. THE STATE.
    (452 SE2d 519)
   Andrews, Judge.

Hinton, a/k/a Rico Cobb, appeals from his conviction of aggravated assault, kidnapping, and rape, arising from incidents occurring on November 14, 1992.

Viewed in favor of the verdict, the evidence was that, in 1991, G. W. was a student at a local university who regularly left her infant son with a child care provider who lived on Hinton’s street. Hinton, who was otherwise unemployed, was renovating a house on that street. During this period, as G. W. walked past the house and waited at a nearby bus stop, she and Hinton would engage in casual conversation. They began dating in February 1992 and engaged in consensual sexual relations beginning in March 1992.

Hinton began striking G. W. in March, but would always apologize afterwards. In the summer, he beat her after she refused to tell him how much she had spent to have her hair braided. Hinton also dictated what type of clothing and makeup G. W. could wear and became more domineering.

In September, G. W. began to notice money missing from places where only she and Hinton knew it was located. When she mentioned this to him, Hinton threatened to beat her and she falsely accused someone else. Thereafter, Hinton wanted to borrow $100 and she told him if he did not pay it back in one week, she considered the relationship over. Although Hinton agreed to repay the money in one week, he told her that nobody was going to break them up. When Hinton did not repay the money, G. W. believed the relationship was over. Hinton then told her he was spending the money on drugs, although at trial he said he was gambling but believed she would be more sympathetic if she believed he used drugs.

Shortly thereafter, Hinton called to G. W. as she and her child were going to the bus stop and asked her to talk to him. She went to the steps on his house and he began accusing her of telling people “his business.” He screamed and cursed at her. Because a neighbor was outside, Hinton told her to go inside. She picked up her child, but Hinton would not allow her to bring the child in. Hinton then took her in his bedroom and forced her to have sex.

She did not report this incident for fear Hinton would harm her child or her mother, with whom she lived. Hinton began following her as she came to leave and pick up her child and on her way to school.

The college homecoming parade was October 31 and Hinton showed up and accompanied G. W. and a friend and their children. When G. W. refused to go home with him, Hinton popped balloons she had bought for her son. He then followed her as she walked home and grabbed the house keys and ran when she told him to leave.

Hinton continued to call and on November 13, he called and she told him not to call or come by anymore. Hinton became upset but she hung up on him because, the next day, she was supposed to take an exam required for her graduation. Saturday morning, she left her son with her mother and went to catch the bus about 7:40 a.m. to go to the exam. Hinton came out from behind a tree as the bus approached and told her she better not get on, if she did, “I’m going to shoot you.” He opened his jacket and displayed a 9 mm handgun which he pulled out and loaded. She did not get on the bus and Hinton told her to walk. She thought he was going to walk her to the school, but as they approached the campus, he told her she was not going and forced her to walk several blocks to his house.

He and she sat on the steps for several hours and he apologized for the October incident, which he blamed on drugs. Eventually, Hinton calmed down, removed the clip from the gun, put the clip in his pocket, and gave her the gun. G. W. wanted to go home and they began to walk. He took her into a store, where he said he wanted to buy her something. G. W. realized Hinton was not going to let her leave. She walked out of the store and he followed her, asking if he could call or come by. She said no and Hinton requested the gun back. She gave it to him and turned to walk away when he slipped the clip back in the gun and told her to come with him. While she thought about running, she did not because of a heart murmur.

After going into his house, Hinton padlocked the door, and told her to remove her clothes. When she hesitated, he told her he would “shoot the s—t” out of her. She got into bed and Hinton threatened her again and ordered her to perform sodomy on him, which she would not do. He then put his penis in her vagina against her will.

After committing the assault, Hinton again became pleasant and allowed her to go home. He walked with her there.

The next morning, Ross, G. W.’s niece, called G. W. and G. W. told her that Hinton had pulled a gun on her while she was waiting for the bus and wanted her to perform oral sex. On the morning of the test, G. W. was supposed to meet Tyson and go to the test with her. The next day, G. W. told her Hinton had a weapon, forced her to his home and made her have sex. Goodman, another student, was also called by G. W. the next day and told that Hinton forced her to his home and hurt her.

G. W. did not report the incident for fear that Hinton would injure her son or her mother. Hinton began calling and stalking G. W. again and, on November 24, he met her at the bus stop and wanted to know why she could not forgive him and why she was treating him this way. He wanted to walk and they walked toward the campus where she worked part time. While walking down the street, Hinton exhibited a knife. She alerted a campus police officer and told him Hinton threatened her. She ran into a building and the officer told Hinton to leave the campus. G. W. then told the dean of student activities, another administrator, and a counselor about the threats and prior rape. The police were contacted and this prosecution ensued.

Hinton continued to call G. W. who told her counselor, Garrett. Garrett suggested that when Hinton called, G. W. should call her on her three-way calling system and she would assist her in dealing with him. On December 13, G. W. did so and the three of them spoke. G. W. told Hinton to tell Garrett what he had done to her. Hinton said “Ms. Garrett, she think I raped her. I didn’t know I raped her until I read those pamphlets in your office. She say I raped her. I would never hurt her.” When asked about the knife and gun, Hinton said the gun was a rusty revolver he found during the renovations which would not fire and that, on the 24th, G. W. would not follow him, although he denied displaying the knife. Hinton said if G. W. would drop the charges, he would not bother her again.

1. During Garrett’s testimony, the State tendered into evidence Exhibits 11, 13, and 14, three of the pamphlets which were displayed in Garrett’s office. The pamphlets concerned “date rape” and various misconceptions concerning rape. They quoted sources such as Ms. Magazine and a report by the National Clearing House on marital and date rape. Hinton’s second enumeration contends it was error to admit them because they were hearsay and that the court erred in charging the jury on their use.

Hinton has improperly included two claimed errors in the same enumeration of error. Robinson v. State, 200 Ga. App. 515, 518 (2b) (408 SE2d 820) (1991). We will consider the admission of the documents, although not required to. Id. The second argument is deemed abandoned.

With regard to the admissibility of the documents, as stated by the State and instructed by the court, the documents were not entered to prove their truth and, therefore, were not hearsay. Hurston v. State, 194 Ga. App. 226 (390 SE2d 119) (1990). Further, even if considered hearsay, the subject of the documents was brought up by Hinton and they were merely being used to explain his statement and prior conduct. See Dover v. State, 250 Ga. 209, 212 (5) (296 SE2d 710) (1982); Berryhill v. State, 235 Ga. 549, 551 (6) (221 SE2d 185) (1975).

2. The first enumeration is that the court erred in not giving a charge on circumstantial evidence upon Hinton’s written Request No. 11 to charge the language of OCGA § 24-4-6. Although the court indicated during the charge conference that a charge on that section would be given and the State acquiesced in such a charge, it was not given to the jury. Such a failure is error. Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994); Barner v. State, 263 Ga. 365, 366 (1) (434 SE2d 484) (1993); Postell v. State, 261 Ga. 842 (412 SE2d 831) (1992).

However, it was harmless error as it is highly probable that the error did not contribute to the jury’s verdict, given that the evidence against Hinton was overwhelming and given that his testimony offered no reasonable hypothesis to contradict the direct testimony of the victim. Alexander v. State, 263 Ga. 474, 476, 478 (2b, d) (435 SE2d 187) (1993); Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976) ; Roura v. State, 214 Ga. App. 43 (447 SE2d 52) (1994); Manning v. State, 207 Ga. App. 181, 182 (2) (427 SE2d 521) (1993); Rash v. State, 207 Ga. App. 585, 587 (5) (428 SE2d 799) (1993).

Judgment affirmed.

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

Beasley, Presiding Judge,

concurring specially.

I concur fully in Division 1 but not entirely in Division 2.1 do not join in the holding that the failure to give the charge was error.

The charge was not adjusted to the evidence. First, the jury could not possibly have convicted defendant on circumstantial evidence; it could either accept the victim’s direct evidence or it would have to reject guilt altogether. It would be totally inconsistent to reject her testimony and find defendant guilty on the circumstantial evidence presented. The jury simply could not be in a position of having to be “familiar with how to weigh that circumstantial evidence.” Mims v. State, 264 Ga. 271, 272 (443 SE2d 845) (1994).

Decided November 29, 1994

Reconsideration denied December 19, 1994.

Michael A. Barkin, for appellant.

Lewis R. Slaton, District Attorney, Leonora Grant, Vivian D. Hoard, Assistant District Attorneys, for appellee.

Second, defendant offered no other reasonable hypothesis, as the majority recognizes. His defense was that he was not even in the victim’s presence during at least part of the time the alleged crimes occurred. He and his friend testified that they met around 10:15 a.m. and drove to Newnan to a car auction, for which there was television advertising all week. They went to look for a car for the friend, who had neither a job nor a driver’s license. Witnesses from two auctions testified that they held no car auctions on that day and knew of no other possible agencies or persons holding car auctions in the Newnan area on that day. This defense not only was not a reasonable hypothesis, it was none at all.

Thus a charge on the law contained in OCGA § 24-4-6 was not needed for a determination of guilt or innocence in this case.

I am authorized to state that Presiding Judge McMurray and Judge Ruffin join in this special concurrence.

       Even if properly enumerated, however, we note that it would be meritless since the court did instruct the jury on the limited purpose of the evidence when it was tendered and Hinton did not request additional instruction. Thomas v. State, 199 Ga. App. 49, 50 (4) (404 SE2d 315) (1991).