author: POPE, Presiding Judge.

text:
    A01A0564.
    INTERSTATE NORTH SPORTING CLUB v. COBB COUNTY BOARD OF TAX ASSESSORS.
    (551 SE2d 91)
   POPE, Presiding Judge.

Interstate North Sporting Club appeals to this Court following the trial court’s dismissal of its ad valorem property tax appeal. The trial court granted the Cobb County Board of Tax Assessors’ motion to dismiss the appeal on the ground that the notice of appeal violated OCGA § 48-5-311 (g) (2) in that it was not filed by an attorney, but by a tax consulting firm. Because we find that there was no requirement that the notice of appeal be filed by an attorney, we reverse.

Interstate, an out-of-state entity, hired the independent tax consulting service of Easley, McCaleb & Associates (EMA) to act as its agent with regard to ad valorem taxes on real and personal property. In that regard, EMA filed an ad valorem tax return on behalf of Interstate in July 1994 reflecting an assessment of Interstate’s property in the amount of $7.2 million. But the Cobb County Board of Tax Assessors assessed Interstate’s property in the amount $8,063,920 for that year. EMA subsequently filed an appeal of that assessment on behalf of Interstate. After the Board of Tax Assessors determined that no change was required, it certified the matter to the Board of Equalization. Following a hearing, the Board of Equalization recommended that no change be made to the assessment and informed Interstate that it had the right to appeal the Board’s decision to superior court.

On February 27, 1995, EMA sent a letter to the Board of Assessors asking that the findings of the Board of Equalization be certified to the Cobb Superior Court for appeal. The letter listed virtually the same grounds as listed in the original appeal to the Board of Tax Assessors: “(1) the current valuation exceeds fair market value, (2) the property is not uniformly assessed to like and similar properties within the jurisdictional boundaries of Cobb County and (3) the tax assessment placed on the property is unconstitutional and in violation of the Fourteenth Amendment.”

Two years later, on February 24, 1997, the Board of Assessors replied by letter to EMA requesting $65 as the superior court’s filing fee. The Board certified Interstate’s appeal to the superior court on April 21,1997. This certification was the first filing made in superior court, followed over a week later by an entry of appearance by Douglas R. Haynie as counsel for the Board. That same day, Haynie served EMA with discovery requests directed to Interstate. At no time during this process did the Board object to Interstate’s failure to hire an attorney to file the notice of appeal on its behalf. Moreover, EMA itself filed no pleadings with the superior court; instead, Interstate hired attorney Scott Tinnon to represent it in the court proceedings.

The matter was referred to mediation on June 25, 1997, and the mediation process continued through February 1998 with no resolution. In April 1998, the matter was again placed upon the superior court docket. Then, in October 1998, more than three and one-half years after EMA wrote the letter of appeal on behalf of Interstate and eighteen months after the appeal was originally certified, the Board filed its motion to dismiss on the ground that the appeal had been filed by a tax consultant and not an attorney in violation of .OCGA § 48-5-311 (g). The trial court granted the motion on August 22, 2000, and this appeal followed.

OCGA § 48-5-311 (g) (1) states “[t]he taxpayer or, except as otherwise provided in this paragraph, the county board of tax assessors may appeal decisions of the county board of equalization ... to the superior court of the county in which the property lies.” The statute also provides that “[a]n appeal by the taxpayer as provided in paragraph (1) of this subsection shall be effected by mailing to or filing with the county board of tax assessors a written notice of appeal.” OCGA § 48-5-311 (g) (2).

The Board argues that this language precludes a tax consulting firm such as EMA from filing a notice of appeal to superior court on behalf of its client. In making this argument the Board points to other language in the statute allowing a taxpayer to appear in an appeal before a board of equalization “in person, by his or her authorized agent or representative, or both.” OCGA § 48-5-311 (e) (6) (A). The Board notes that no such language appears in OCGA § 48-5-311 (g). Rather, the subsection omits the term “representative” in stating whom the board of assessors may serve with a copy of the notice of certified appeal. Such service must be made upon “the taxpayer or his or her attorney or agent of record.” OCGA § 48-5-311 (g) (2).

This Court previously interpreted the language of OCGA § 48-5-311 in Grand Partners Joint Venture I v. Realtax Resource, 225 Ga. App. 409 (483 SE2d 922) (1997). There, we found that in OCGA § 48-5-311 (e) (6) (A), the General Assembly specifically authorized nonlawyers to appear before a board of equalization on behalf of a taxpayer. Id. at 411. In reaching this conclusion, we contrasted the legislature’s use of the term “representative” in connection with the board of equalization proceedings, with the use of the term “attorney” in the service provisions of subsection (g) (2). Id. at 412. But we did not specifically address the portion of the statute dealing with the filing of the notice of appeal to superior court.

This Court, however, has previously addressed the validity of a notice of appeal to superior court filed by a tax consulting firm. In DeKalb County Bd. of Tax Assessors v. Kendall, Inc., 164 Ga. App. 374 (295 SE2d 345) (1982), the county board first raised the issue of the insufficiency of the notice of appeal on the eve of trial. The opinion in that case did not address the appeal procedures set forth in the statute, but rather turned upon the timing of the board’s objection. We held that the board could not first question the sufficiency of the notice in superior court. Id. at 375 (1). Instead, we held that the board should have refused to certify the appeal until the notices were amended. Id. at 376 (on rehearing). See also Vaughters v. DeKalb County Bd. of Tax Assessors, 198 Ga. App. 589, 590 (402 SE2d 340) (1991).

In Kendall, this Court relied upon a Supreme Court of Georgia decision holding that a board of assessors should not certify an inadequate notice of appeal to the board of equalization until any defects were amended. Ledbetter Trucks v. Floyd County Bd. of Tax Assessors, 240 Ga. 791, 792 (3) (242 SE2d 596) (1978). The Kendall opinion simply extended this finding, noting on rehearing that any difference between an appeal to the board of equalization and an appeal to superior court is “a distinction without a difference” in terms of the procedures the board of assessors should follow. Kendall, Inc., 164 Ga. App. at 376.

But this reasoning has been undercut by more recent Supreme Court decisions. In Fulton County Bd. of Tax Assessors v. Jones, 264 Ga. 828 (452 SE2d 99) (1995), a board of tax assessors refused to certify a taxpayer’s appeal to superior court because it concluded that the taxpayer had failed to exhaust its administrative remedies. The taxpayer filed a mandamus action to compel the board of assessors to certify his appeal. The Supreme Court held that OCGA § 48-5-311 gave the board of tax assessors no discretion to refuse to certify an appeal; rather, certification is mandatory. Id. at 829. See also Fulton County Bd. of Tax Assessors v. Boyajian, 271 Ga. 881 (1) (525 SE2d 687) (2000). Under this authority, therefore, the Board here was not authorized to demand an amendment before certifying Interstate’s appeal, and thus, it could only raise the issue in superior court.

We must accordingly turn to the language of the statute to determine whether the trial court was correct in ruling that the notice in this case was insufficient. Pretermitting the issue of whether the Board here waived its defense of insufficiency by waiting over three and one-half years after the notice was filed to first raise it, we find that nothing in the language of the statute prohibits a tax consulting firm from writing a letter to the board of tax assessors requesting certification of an appeal to superior court.

In discussing the procedure for filing an appeal, the statute refers only to the “taxpayer.” In fact, the language addressing the mechanics for filing the notice is written in the passive voice. It states that the appeal “shall be effected by mailing to or filing with the county board of tax assessors a written notice of appeal,” OCGA § 48-5-311 (g) (2), but is silent on the matter of who must do the mailing or filing.

This creates an ambiguity that must be resolved in Interstate’s favor. It is well settled that “when a taxing statute has doubtful meaning, it must be construed liberally in favor of the taxpayer and against the State.” (Citation omitted.) Telecom*USA v. Collins, 260 Ga. 362, 364 (1) (393 SE2d 235) (1990). That is because “revenue laws are neither remedial statutes nor laws founded upon any permanent public policy, and are not, therefore, to be liberally construed; and hence, whenever there is a just doubt, that doubt should absolve the taxpayer from his burden.” (Citations and punctuation omitted.) Mystyle Hosiery Shops v. Harrison, 171 Ga. 430, 431 (1) (155 SE 765) (1930). In this case, the ambiguous provision must be interpreted to allow a tax consulting firm to file the notice of appeal.

Further, nothing in the language of subsection (g) (2) requiring that the Board must serve the taxpayer or his attorney or agent of record with a copy of the notice of certified appeal affects this interpretation. One provision governs the procedures the taxpayer must follow, and the other sets forth the procedures the state must follow. Under the principle of statutory construction favoring the taxpayer, that is a distinction that makes a difference.

In addition, we find that EMA’s simple filing of the notice did not constitute the unauthorized practice of law under Eckles v. Atlanta Technology Group, 267 Ga. 801 (485 SE2d 22) (1997). The Board is not a court of record but is rather a quasi-judicial administrative body created by the legislature. Grand Partners, 225 Ga. App. at 412. Eckles addressed only the representation of corporations in the courts of record in this state. As Justice Sears noted in her concurring opinion: “By permitting lay persons to serve as a corporation’s legal representative in courts not of record, the majority has prudently allowed corporations to be represented by non-lawyers in forums which include, among others: . . . administrative tribunals. . . Eckles, 267 Ga. at 806-807 (Sears, J., concurring specially). Here, EMA filed nothing in the superior court. The notice itself was filed with the Board as required by statute, and all court filings were made through Interstate’s counsel.

Decided June 27, 2001

Ragsdale, Beals, Hooper & Seigler, David K. Beals, Lisa F. Stuckey, for appellant.

Haynie, Litchfield & Crane, Douglas R. Haynie, Harbert S. Gregory, Jr., for appellee.

Webb, Carlock, Copeland, Semler & Stair, Johannes S. Kingma, amicus curiae.

Moreover, EMA simply reasserted in its letter to the Board the same grounds previously raised in its appeal before that Board and subsequently before the Board of Equalization. To the extent that the Board now argues that the nature of the grounds raised somehow constituted the unauthorized practice of law by EMA, it should have raised that issue and demanded an amended notice filed by an attorney before certifying the appeal to the Board of Equalization. Ledbetter Trucks, 240 Ga. at 792 (3). The Board of Equalization itself could have refused to hear the appeal on the grounds raised unless Interstate was represented by counsel. Id. But because the matter proceeded through the administrative appeal process without objection, the Board of Tax Assessors waived its right to assert that the arguments raised by EMA constituted the unauthorized practice of law. Id.

In sum, while a taxpayer may wish to consult an attorney prior to filing its notice of appeal to ensure that no legal grounds for appeal are omitted, we find nothing in Georgia law that requires the taxpayer to do so. This conclusion is in accord with the longstanding policy in this state that tax appeals should be decided on their merits and not on “procedural technicalities.” Ledbetter Trucks, 240 Ga. at 791 (2). See also Andrew v. DeKalb County Bd. of Tax Assessors, 194 Ga. App. 274 (390 SE2d 115) (1990).

Judgment reversed.

Blackburn, C. J., and Mikell, J., concur.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A01A0813.
    BAIR v. THE STATE.
    (551 SE2d 84)
   Pope, Presiding Judge.

Verna Bair appeals following the trial court’s denial of her plea of former jeopardy. Because we find, under the facts of this case, that the trial court erred in failing to grant Bair’s request to accept the jury’s unanimous verdict on three counts of a seven-count accusation where the jury was hung on the remaining counts, we reverse the denial of Bair’s plea as to the three decided counts.

The record reflects that the accusation filed against Bair asserted one count each of (1) obstruction of an officer; (2) simple battery; (3) fleeing/eluding a police officer; (4) reckless driving; (5) license to be carried and exhibited on demand; (6) speeding and (7) improper stopping/standing/parking. The matter proceeded to a jury trial. After the presentation of evidence, the jury announced that it had reached a unanimous verdict on three counts of the accusation but was deadlocked on the remaining four counts. The trial court directed the jury to continue their deliberations and attempt to resolve the remaining four counts. When the jury was unable to break the deadlock on the remaining counts, Bair’s counsel requested that the trial court receive the verdicts on the counts as to which the jury was unanimous. The state objected, and the trial court entered a mistrial on all seven counts.

At no time did the trial court ask the jury to identify the counts it had decided and the counts as to which it was deadlocked. Nevertheless, the record contains the completed verdict forms, signed by the foreperson, indicating that the jury had found Bair not guilty on the charges of simple battery, license to be carried and exhibited on demand and speeding. The forms are blank as to the four remaining charges.

We find that jeopardy attached when the jury was seated and sworn and that Bair was entitled to receive any verdict reached by that jury. Further, unless manifest necessity existed for granting a mistrial as to the counts decided by the jury, double jeopardy bars any retrial on those counts. Smith v. State, 263 Ga. 782, 783 (1) (439 SE2d 483) (1994). The state bears the “heavy” burden of showing such manifest necessity where, as here, a mistrial is granted over the defendant’s objection. Arizona v. Washington, 434 U. S. 497, 505 (98 SC 824, 54 LE2d 717) (1978); Tieu v. State, 257 Ga. 281, 285 (358 SE2d 247) (1987).

Additionally, a mistrial is appropriate under only limited, urgent circumstances, and it is incumbent upon the trial court to consider less drastic alternatives before concluding that a mistrial is warranted:

A manifest necessity to declare a mistrial may exist “under urgent circumstances,” United States v. Perez, 22 U. S. 576 (6 LE 165) (1824), such as where “an impartial verdict cannot be reached, or (where) a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial,” Illinois v. Somerville, 410 U. S. 458, 464 (93 SC 1066, 35 LE2d 425) (1973). Because of “ ‘the severe consequences of ordering a mistrial without the accused’s consent,’ (cit.),” Cherry v. State Bd. of Corrections, 613 F2d 1262, 1266 (5th Cir. 1980), a trial court should give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives, calling for a recess if necessary and feasible to guard against hasty mistakes, see id.

Smith v. State, 263 Ga. at 783 (1). Thus, in determining whether such urgent circumstances exist, the trial court “must scrupulously exercise its discretion in ‘weighing the defendant’s right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into [account] all the surrounding circumstances.’ [Cits.]” Jefferson v. State, 224 Ga. App. 8, 9 (479 SE2d 406) (1996).

Here, the state has failed to show any manifest necessity for granting a mistrial on the three counts decided by the jury. And it appears that the trial court could easily have followed the less drastic alternative of accepting the jury’s verdict on the decided counts and declaring a mistrial only on the four undecided counts. Under these circumstances, we find that the trial court abused its discretion in granting a mistrial on the three decided counts and a retrial on those counts is barred under the Double Jeopardy Clause. See Jefferson v. State, 224 Ga. App. at 10; OCGA § 16-1-8 (a) (1).

To hold otherwise would require Bair to face a second prosecution on crimes of which she has already been acquitted. “There is no acceptable reason why the state should have a second opportunity to convince a jury of facts necessary to secure a conviction of a crime. Indeed, one of the purposes of the Double Jeopardy Clause is to prevent the state from having such a second chance.” Wallace v. Havener, 552 F2d 721, 724 (6th Cir. 1977).

Decided June 27, 2001.

Dwight L. Thomas, Jo Ann C. Fields, Caprice J. Small, for appellant.

Joseph J. Drolet, Solicitor-General, Marko L. Burgar, Gerald Mason, Assistant Solicitors-General, for appellee.

Accordingly, we reverse the trial court’s denial of Bair’s plea of former jeopardy as to the counts of simple battery, license to be carried and exhibited on demand and speeding but affirm the denial as to the remaining four counts.

Judgment affirmed in part and reversed in part.

Blackburn, C. J., and Mikell, J., concur.

       While the record in this case does not contain a trial transcript, the transcript on Bair’s plea of former jeopardy reflects agreement among the parties and the trial court as to these underlying facts.

       For example, unlike Williams v. State, 173 Ga. App. 207 (325 SE2d 783) (1984), upon which the state relies, there was no indication that the jury’s verdict was somehow incomplete as to the counts decided. See id. at 210-211 (Beasley, J., concurring specially).


author: Miller, Judge.

text:
    A01A0392.
    A01A0393.
    WILLIAMSON v. YANG et al. YANG v. WILLIAMSON.
    (550 SE2d 456)
   Miller, Judge.

Claiming Jan Yang had failed to keep a promise to give Ron Williamson five percent of a newly formed company (Enzymatic Deinking Technologies or “EDT”), Williamson sued Yang and EDT in five counts to obtain the promised ownership shares or to recover damages. The counts were stated as claims for trover, breach of contract, breach of fiduciary duty, fraud, an accounting, and attorney fees. The court directed a verdict in EDT’s favor on all counts and in Yang’s favor on all counts excepting breach of contract. The jury found in Yang’s favor on the breach of contract count, and Williamson appeals in Case No. A01A0392. In Case No. A01A0393, Yang cross-appeals the court’s denial of his directed verdict motion on the breach of contract claim.

The questions on appeal are whether (1) the court abused its discretion in certain evidentiary rulings and in refusing to grant a mistrial, (2) the court erred in entering the directed verdicts, and (3) the court erred in refusing to compel the appellees to pay the record costs arising out of their record designations. We answer these questions in the negative and thus affirm in Case No. A01A0392. These rulings moot the cross-appeal in Case No. A01A0393.

Construed in favor of the verdict, the evidence shows that Yang and another scientist, both employed at the University of Georgia, developed certain technology that used enzymes to “deink” paper for recycling. Williamson, who was counsel for the university, assisted Yang on some personal legal matters and also advised him on how to set up EDT, a corporation that would license the technology from the university and commercialize the process. Williamson claims that in July 1994, Yang orally promised him five percent of EDT in exchange for Williamson’s assistance in setting up EDT. He further claims that soon thereafter Yang promised him another five percent if Williamson would help Yang obtain the technology license from the university. Yang counters that no such promises were made, but that he simply told Williamson he would eventually compensate Williamson for his time and advice.

Williamson made a phone call to reserve the corporate name, prepared a one-page sheet setting forth articles of incorporation authorizing one million shares, and commented on proposed confidentiality agreements with third parties. He did not help obtain the license, as he felt such conflicted with the interest of his employer, the university. Using the articles of incorporation and the reserved name, Yang incorporated EDT in September 1994 and issued himself 750.000 shares at $.002 per share. On October 5, EDT obtained the license without the help of Williamson. On October 7, Yang as the sole shareholder amended the articles of incorporation to authorize ten million shares. On October 11, Williamson signed a subscription agreement and received 60,000 shares in EDT at $.002 per share. Even though the share certificate reflected on its face that ten million shares were authorized, Williamson claims that he did not read this information and that he believed he was receiving six percent of the initially authorized one million shares.

EDT was converted from a corporation to a limited liability company in November. Williamson consented to the conversion in a document which had attached to it a conversion plan showing him as owning 0.6 percent of the ten million authorized shares or 1.6 percent of the shares actually issued. He received an equivalent number of units in the limited liability company, which had also authorized ten million ownership units.

Nevertheless, Williamson claims he did not become aware of his ownership percentage until early December, after which he arranged a meeting with Yang. He demanded more shares from Yang, who refused. Williamson drafted a letter for Yang’s signature in which Williamson had Yang acknowledge a promise to Williamson of six percent of the authorized shares. Yang refused to sign and was offended by the inclusion of this fictionalized promise, which even Williamson agreed did not reflect the agreement between the parties.

In January 1995 and then February 1996, Williamson sent letters to Yang demanding that Williamson receive an additional 940.000 ownership units for a total of one million or ten percent of the authorized ten million ownership units. He claimed that Yang had promised him five percent in the summer of 1994 for help in setting up the corporation and had promised him an additional five percent in the early fall for help in obtaining the technology license from the university. Counsel for Yang declined the demands, noting among other things that if Williamson were to receive pay for help in obtaining a license from his staté university employer, criminal actions of bribery against Williamson were possible.

In 1998, EDT obtained a patent on the licensed technology. Williamson then sued Yang and EDT on the alleged initial five percent promise.

1. In nine separate enumerations of error, Williamson argues that the court erred in excluding or admitting various pieces of evidence on grounds of relevancy. Williamson objected to much of this evidence in a pre-trial motion in limine, which the court for the most part denied. Of course, even though the admission of marginal evidence is favored, ultimately the admission or exclusion of evidence on grounds of relevancy lies within the sound discretion of the trial court, whose decisions we will not disturb absent a clear abuse of discretion. Our review of the disputed evidence reveals no abuse of that discretion.

(a) The trial court refused to allow a third-party witness to testify about his attempts to negotiate a deal with Yang in June 1994 regarding another way to incorporate, fund, and commercialize the deinking technology. In the proffer to the court without the jury present, this witness testified that Yang came to California to negotiate a deal to set up two organizing companies, one by the name of Enzyme Works, which the witness and others would fund. The witness claimed that during the negotiations Yang referenced that he anticipated that Williamson as legal counsel would receive a five to ten percent “shareholdership.” This deal never materialized, and instead Yang formed EDT, which he funded through others.

After hearing the proffered testimony and cross-examination, the court found that the testimony concerned a deal wholly distinct from EDT and thus was irrelevant to the issue of whether Yang promised Williamson five percent of EDT. The court excluded the testimony. As there is evidence to support the determination that the evidence concerned a similar but entirely distinct transaction between Yang and third parties, we discern no abuse of discretion in the court’s finding the evidence irrelevant and thus inadmissible.

(b) The court allowed EDT to question Williamson about his not filing suit until September 1998, more than two years after his February 1996 demand letter and more than four years after the alleged promise in July 1994. Williamson admitted that he filed suit not long after receiving notice of EDT receiving a patent on the technology. Citing Turner v. W. E. Pruett Co., Williamson contends that the court erred in allowing the testimony in that a delay in filing suit is irrelevant when the suit is filed within the applicable statute of limitation.

The court did not abuse its discretion in allowing the questioning. First, EDT had properly pled that the applicable four-year statute of limitation had run, and there was some evidence that key events occurred more than four years before the suit was filed, thus making this a triable issue. Turner held that delay evidence was possibly admissible when the statute of limitation is at issue. The fact that the court had denied a summary judgment motion raising this defense decided nothing except that under the evidence before the court at that time it could not render a judgment deciding the issue as a matter of law; it became an issue for the jury to resolve.

Second, the evidence showed that the five percent agreement was less likely in that Williamson did not pursue his claim until he received notice of the patent. This lent possible credence to EDT’s argument that Williamson was fabricating the agreement to benefit from EDT’s recently hard-won success. Thus, even if the evidence were irrelevant as to the statute of limitation, it was possibly relevant as to the very existence of the alleged agreement and was therefore admissible on this ground alone. Evidence of doubtful relevance should be admitted with its weight left to the jury.

(c) The court refused to allow Williamson to recount the hearsay statements of a lawyer he consulted pre-suit. As Williamson was explaining at length why he filed suit in 1998, he threw in the statement that in 1996 an attorney told him that Yang had violated federal and state securities laws. The court did not abuse its discretion in holding that such tangential hearsay testimony was not only irrelevant but highly prejudicial.

(d) The court allowed evidence that Williamson demanded an additional five percent based on the alleged promise that he would receive such if he helped Yang obtain the technology license from the university. Williamson claims that this evidence was irrelevant in that in his suit he did not choose to seek this additional five percent but only the initial five percent. Regardless of what damages Williamson as a matter of tactics eventually chose to pursue, such does not diminish from the fact that Williamson at various times demanded five percent, six percent, and ten percent of EDT’s stock. The constantly shifting demands made the existence of a definite agreement less likely and thus were all relevant to the core question of whether Yang and Williamson ever made the five percent agreement pursued by Williamson in the suit. The court did not abuse its discretion in allowing this evidence.

(e) The court allowed evidence showing the price Williamson received when he sold half of his 60,000 shares in January 1995. Williamson argues this evidence was irrelevant to the issue of whether Yang and he had entered into the five percent agreement in July 1994. Williamson’s argument is somewhat disingenuous, for in proving his damages his attorney had him testify to this sale as a basis for his valuation of the shares. As shown by Williamson’s own testimony, a sale of the shares to a willing buyer is relevant to determining damages. The trial court did not abuse its discretion in allowing the evidence.

(f) Similarly, the court did not abuse its discretion when it allowed Yang to testify as to the current value and finances of EDT. Such also went to show the value of the shares. Moreover, Williamson affirmatively stated he had “[n]o objection” when Yang moved to admit EDT’s recent financial statements. He thereby waived his objection to the admission of such evidence.

(g) The court refused to allow Williamson to use a certain interrogatory response to impeach Yang. Before a prior statement can be used to impeach, it must contradict the witness’s testimony given on the stand. “Proof of a different but not inconsistent statement would not suffice to raise an issue either as to impeachment or as to substantive use.” This is a question of law for the court.

Here Williamson does not dispute that the interrogatory question was different from the question asked at trial. After carefully reviewing the interrogatory response, the court determined that the response, though related to Yang’s trial testimony, did not contradict that testimony. Based on our review of the record, we discern no abuse of discretion.

(h) The court disallowed testimony as to whether EDT was paying Yang’s legal expenses. Williamson argues that because an EDT corporate bylaw obligated EDT to pay the legal expenses of officers sued for any act taken in connection with the business of EDT, a showing that EDT was paying Yang’s expenses would prove that EDT believed that in July 1994, Yang’s dealings with Williamson were in connection with EDT’s business. Williamson argues that this would show that EDT had ratified Yang’s actions and was therefore responsible for those actions. The argument, however, falls apart in light of the jury verdict exonerating Yang. As the jury found Yang did not breach any contract, whether EDT was responsible for his actions is now moot.

(i) The court allowed Yang to testify as to Williamson’s minimal contributions to the success of EDT. This testimony was relevant to show whether Williamson abided by the agreement to help start up EDT and to show whether an agreement to give Williamson five percent of the stock was likely in light of what he actually did to earn it. The court did not abuse its discretion in allowing the testimony.

2. Williamson contends the trial court should have granted his motion for mistrial based on the introduction of a statement implying Williamson may have been acting criminally. Citing Lylerly v. Phillips, Williamson claims that such testimony served no purpose other than to raise the “odor of criminality” and thus irreparably prejudiced the jury against him.

The granting or refusing of a motion for mistrial is a matter largely within the discretion of the trial court and will not be disturbed unless a mistrial was essential to the preservation of the right to a fair trial. Here the facts amply support the trial court’s decision to allow the testimony and to deny the motion for mistrial. Williamson wrote Yang that Williamson was entitled to an additional five percent of EDT as a result of Yang’s alleged promise to him in the early fall of 1994 that Yang would give him such if Williamson helped EDT obtain the technology license from the university. At trial, Williamson testified that because ethically he could not directly help EDT obtain the license from his employer, he did not believe he was entitled to the additional five percent but had asserted the claim to gain leverage in negotiations with Yang and EDT. Thus, he was not seeking the additional five percent at trial.

To rebut this testimony that the additional five percent claim had been dropped as a result of Williamson believing he had not really earned it, Yang introduced statements from a letter sent to Williamson soon after he reasserted the ten percent claim in which Yang’s counsel pointed out the criminal implications of an agreement by a state employee to obtain a governmental benefit for a corporation in exchange for personal compensation to the employee. Yang sought to show that the real reason for dropping the claim was this letter highlighting that to be entitled to the additional five percent, Williamson would have had to engage in criminal misconduct. Moreover, the criminal implications of the second five percent agreement would tend to show that the illegal agreement was never made, which would throw doubt on Williamson’s veracity and would make less likely that the first five percent agreement was ever made. As the evidence was relevant to these issues, the trial court did not abuse its discretion in allowing the testimony and in denying the motion for mistrial.

3. Williamson claims that the court erred in allowing Yang to make various misstatements in his closing argument. Williamson, however, failed to make any objections to those statements either during the argument or thereafter. “Having failed to object to any erroneous argument below, [Williamson] will not now be allowed to complain because the trial court has had no opportunity to consider the issue.”

4. Williamson contends that the court erred in granting the directed verdicts on all the claims against EDT and on the fiduciary claims against Yang. A directed verdict is authorized when there is no conflict in the evidence as to any material issue and the evidence and all reasonable deductions therefrom demand a particular verdict.

The fiduciary claim hinged on the existence of a fiduciary relationship and duty between Yang as the majority shareholder and Williamson as the minority shareholder, which duty was allegedly breached when Yang increased the authorized shares to ten million without informing Williamson. The undisputed evidence showed that at the time the additional shares were authorized, Williamson was not yet a shareholder of EDT. In fact, Williamson’s share certificate reflected on its face that ten million shares were authorized. Thus, there was no fiduciary relationship at the time of the actions causing the alleged breach. And because the jury found there was no contract for the shares, there is no arguable evidence that Yang owed Williamson any fiduciary duty at the time the additional shares were authorized. The court did not err in granting a directed verdict on this claim.

The court’s granting EDT a directed verdict is now moot. EDT was liable only through Yang. As the jury found in Yang’s favor on the breach of contract claim, and as no other claims against Yang survived, the claims against EDT have dissipated.

5. Williamson contends that the court erred in failing to compel EDT to pay for the costs of supplying the entire record. Williamson had directed the clerk to include particular parts of the record, including some materials used in discovery disputes and in the summary judgment motion. Unable to determine just how these particular portions of the record would be used on appeal, EDT responded by designating the entire record. Williamson moved the court to compel EDT to pay the $2,439 expended to include the parts of the record additional to that designated by Williamson, which motion the court denied.

“Ordinaiily the costs for the record and transcript in an appeal are borne by the appellant. . . .” “The cost of additional portions of a record designated by the appellee that are necessary to complete the record on appeal must be paid by the appellant; only if considered unnecessary on appeal, should the costs be taxed against the appellee.” “The trial court’s decision [in this regard] will not be reversed absent a manifest abuse of discretion.”

Here Williamson designated discovery and summary judgment portions of the record in addition to. the pleadings and transcript. This placed EDT in a quandary as to how those record portions would be used and as to how it would rebut same. Evidence thus supported the conclusion that the additional portions of the record were necessary for the appeal. We discern no manifest abuse of discretion in the trial court’s decision to place the record costs on the shoulders of the appellant.

These rulings moot the cross-appeal in Case No. A01A0393.

Judgment affirmed in Case No. A01A0392. Appeal dismissed as moot in Case No. A01A0393.

Andrews, P. J., and Eldridge, J., concur.

Decided June 11, 2001

Reconsideration denied June 28, 2001

Eric T Johnson, for appellant.

Pursley, Howell, Lowery & Meeks, John R. Lowery, for appellees.

       See OCGA § 16-10-2.

        Piggly Wiggly Southern v. Snowden, 219 Ga. App. 148, 150 (3) (464 SE2d 220) (1995).

        Dennis v. Dennis, 227 Ga. 164, 166 (3) (b) (179 SE2d 238) (1971).

       202 Ga. App. 287, 288 (2) (414 SE2d 248) (1991).

       OCGA §§ 9-3-26; 9-3-31.

        Turner, supra, 202 Ga. App. at 288 (2).

        Ellington v. Tolar Constr. Co., 142 Ga. App. 218, 221 (1) (235 SE2d 729) (1977).

        See Nottingham Co. v. Resource Materials Corp., 210 Ga. App. 128, 131 (2) (435 SE2d 447) (1993) (physical precedent only) (delay in filing may be shown where it pertains to other issues).

        Dept. of Transp. v. Swanson, 191 Ga. App. 752, 754 (3) (382 SE2d 711) (1989).

       Cf. Oglethorpe Power Corp. v. Seasholtz, 157 Ga. App. 723, 724 (1) (278 SE2d 429) (1981) (recent sale of comparable land is relevant in determining damages).

       See Amalgamated Transit Union Local 1324 v. Roberts, 263 Ga. 405, 408 (1) (434 SE2d 450) (1993) (all facts down to time of trial are relevant in determining damages).

       See Dyer v. State, 233 Ga. App. 770, 771-772 (505 SE2d 71) (1998).

        Hardeman v. MARTA, 157 Ga. App. 271, 272 (1) (277 SE2d 65) (1981).

       (Citations omitted.) Hopkins v. State, 167 Ga. App. 811, 814 (1) (307 SE2d 707) (1983).

        Travelers Ins. Co. v. Bailey, 76 Ga. App. 698, 703 (1) (47 SE2d 103) (1948).

       See Hardeman, supra, 157 Ga. App. at 272 (1).

       188 Ga. App. 566, 569 (1) (373 SE2d 663) (1988).

        Piggly Wiggly Southern, supra, 219 Ga. App. at 150 (5).

       (Citations omitted.) Gearing v. Etowah Bank, 240 Ga. App. 449, 450 (2) (523 SE2d 899) (1999).

       OCGA § 9-11-50 (a); Carden v. Burckhalter, 214 Ga. App. 487, 488 (1) (b) (448 SE2d 251) (1994).

       See OCGA § 14-2-1003 for the procedure for amending the articles of incorporation.

       See generally LDS Social Svcs. Corp. v. Richins, 191 Ga. App. 695, 698-699 (2) (382 SE2d 607) (1989) (absent an independent act of negligence, finding of nonliability against person directly responsible for bad acts exonerates those supervising that person).

        Jones v. Spindel, 239 Ga. 68, 70 (2) (235 SE2d 486) (1977).

       (Citations and punctuation omitted.) Bennett v. Cotton, 244 Ga. App. 784, 787 (3) (536 SE2d 802) (2000).

        Jones, supra, 239 Ga. at 71 (2); see Morris v. Budd, 226 Ga. App. 455, 458 (4) (486 SE2d 682) (1997).


author: Blackburn, Chief Judge.

text:
    A01A0400.
    ALDRIDGE et al. v. KING’S COLONIAL FORD, INC. et al.
    (550 SE2d 439)
   Blackburn, Chief Judge.

Darrell T. Aldridge and Mary Ann Aldridge appeal the trial court’s order granting summary judgment to the defendants, King’s Colonial Ford, Inc. and Ford Motor Company, in the underlying action for negligence and breach of express and implied warranties with regard to the Aldridges’ purchase of a new 1994 Ford Aerostar from King’s Colonial. The trial court granted the defendants’ motions for summary judgment, and we affirm.

“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. OCGA § 9-11-56 (c). A 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.” (Emphasis in original.) Lau’s Corp. v. Haskins. On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the non-moving party.

Padilla v. Hinesville Housing Auth.

In October 1997, Mary Ann Aldridge, while driving her Ford Aerostar, collided with the car in front of her. The Aldridges contend that the collision occurred because the brakes “failed,” and they filed the present action against the car’s manufacturer and the dealership, King’s Colonial. The Aldridges have failed to present evidence as to what caused the collision other than their conjecture that the brakes failed. In affidavits, the Aldridges aver that, after purchasing the Aerostar, they experienced numerous problems with the brakes, including a leak in the brake line at some point prior to the collision. King’s Colonial repaired the leak. Darrell Aldridge testified in his affidavit that on the day of the collision, he came to the scene, checked the brake fluid level and found that it was not low. He also asserted that the brake pedal did not have the appropriate resistance and that it could be pressed to the floor. Mary Ann Aldridge explained that while she was driving at a safe speed below the speed limit, she braked to stop for a traffic light and the vehicle failed to stop. Her car collided with the car in front of her. She contends that the brakes did not have the proper resistance and that the pedal would go almost to the floor.

The defendants present the affidavit of Hugh Delaughder, a certified automotive master technician, who worked on the Aldridges’ car prior to the collision and who inspected the car after the collision. Delaughder outlined the service records on the Aldridges’ car. He testified in his affidavit that after the Aldridges purchased the car, they brought it in for service numerous times because the rear anti-lock braking system (RABS) light would occasionally remain on after the vehicle started. Delaughder determined that nothing was wrong with the brakes, and after numerous visits, he determined that the light’s failure to go off might be caused by a delay in the return of the ignition switch from the start position to the run position. This could be caused by a heavy key chain which puts extra weight on the ignition switch delaying its return to the proper position. After Mary Ann Aldridge’s collision, Delaughder tested the brakes on the vehicle. Darrell Aldridge averred that, other than some body work, nothing had been done to the car after the collision. After numerous tests, Delaughder was unable to find anything wrong with the brakes. Delaughder’s affidavit details the road tests conducted by him, a Ford Motor Company Design Analysis Engineer and the expert hired by the Aldridges. The vehicle braked in a normal fashion on every occasion. Additionally, Delaughder averred that Mrs. Aldridge’s complaint regarding the brake pedal going almost to the floor was consistent with the normal functioning of a RABS. This system stops the rear wheels from locking so that no skid marks are produced and the brake pedal travels further downward than normal causing the driver to experience a feeling that the vehicle was not slowing as quickly as it should.

Based upon Delaughder’s affidavit, the defendants have come forward with expert testimony disproving the allegations contained in the plaintiffs’ complaint and amended complaint. The plaintiffs, therefore, were not entitled to sit back and rely on the allegations contained in their complaint. The plaintiffs’ affidavits did not create an issue of fact in the face of expert testimony which explains how the plaintiffs’ allegations are consistent with the proper functioning of the braking system. On the record before us, the plaintiffs have failed to present any evidence supporting their case. See Lau’s Corp., supra. Therefore, the trial court did not err in granting the defendants’ motions for summary judgment.

Decided June 8, 2001

Reconsideration denied June 28, 2001

Walter D. Adams, for appellants.

Brennan & Wasden, Marvin W. McGahee, William A. Bowen, Cabaniss, Conroy & McDonald, James B. Manley, Jr., Charles K. Reed, Michael R. Boorman, for appellees.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Padilla v. Hinesville Housing Auth., 235 Ga. App. 409 (509 SE2d 698) (1998).


author: Ruffin, Judge.

text:
    A01A0636.
    F & W AGRISERVICES, INC. et al. v. UAP/GA. AG. CHEM., INC.
    (549 SE2d 746)
   Ruffin, Judge.

This appeal arises out of a dispute between creditors. UAP/Ga. Ag. Chem., Inc. (“UAP”) sued F & W Agriservices, Inc. and King Cotton Gin, LLC (collectively “F & W”), alleging that the defendants converted cotton crop proceeds in which UAP held a security interest. UAP subsequently moved for summary judgment, which the trial court granted. F & W appeals, and we reverse.

“On appeal, we review the trial court’s grant of summary judgment de novo to determine whether the evidence of record, viewed in the light most favorable to the nonmoving party, demonstrates any genuine issue of material fact.” Viewed in this manner, the evidence shows that James Darley obtained a farm operating loan, including a line of credit, from UAP. As collateral for the loan, Darley gave UAP a security interest in his cotton crops.

Darley exhausted his line of credit before he harvested his cotton. Facing significant operating costs to harvest the crop, he asked UAP for additional financial help and arranged to have certain expenses paid. UAP, however, did not loan Darley additional funds for labor, fuel, and some other harvest costs. According to Darley, John Martin, a UAP salesman, suggested that Darley cover these other costs by obtaining advances on his cotton crop sales from F & W, which managed the cotton gin where Darley processed his cotton and also handled the cotton sales. Darley testified that UAP agreed F & W could make these advances on the cotton crop directly to Darley, despite UAP’s security interest and the general requirement that all crop proceeds checks be made jointly to Darley and UAP:

[Martin] said as long as you need the money for fuel or labor or whatever, you can just get [F & W] to advance you money against your cotton crop, which hadn’t been harvested at that time. And I said, well, you know, those checks will be made jointly [to Darley and UAP]. You’ll need to probably send [F & W] some kind of [re] lease or something, or I’ll have [F & W] call you. And [Martin] indicated . . . that [F & W] could make the checks without putting their names on it, without putting [UAP’s] name on them.

Darley believed that F & W would be paid back for any advances “out of the cotton.”

Dennis Barrentine, president of F & W, testified that Darley asked him for an advance to finish the cotton harvest. Darley told Barrentine that UAP had advised him to get the advance from F & W. Barrentine understood from Darley that UAP had approved the advance and that, despite UAP’s lien, F & W could deduct the advanced amounts from the money “due [Darley] on the cotton.” Barrentine recalled that either he or Darley verified the arrangement with UAP in a telephone conversation. Apparently, however, Barren-tine never saw any written confirmation of UAP’s agreement.

Martin, the UAP salesman, denied advising Darley to obtain advances from F & W. According to Martin, Darley mentioned that he planned to obtain a loan from F & W to harvest his crop, but Martin did not discuss the details of that loan with Darley or suggest that F & W could take any payments out of the cotton proceeds. UAP’s credit manager similarly testified that UAP did not give F & W oral or written authorization to deduct the advanced funds from the crop proceeds checks. Martin admitted, however, that UAP needed Darley to harvest his cotton crop so that Darley could pay back the operating loan.

F & W advanced Darley $200,000 over several months. When F & W later sold Darley’s cotton, it deducted $200,000 from the sale proceeds. UAP reviewed the proceeds checks, which were made out jointly to UAP, Darley, and another party, shortly after they were issued. Although the checks clearly showed deductions for the advance, UAP did not question Darley or F & W about the subtracted amounts.

After Darley failed to make payments on his farm operating loan, UAP sued F & W. UAP claimed that F & W converted $200,000 by advancing funds directly to Darley and deducting the advance from Darley’s crop sale proceeds, which were subject to UAP’s security interest. The trial court subsequently granted summary judgment to UAP, finding that F & W “never received any written evidence from [UAP] that it agreed to release its lien on the crop proceeds which [F & W] inappropriately advanced.”

On appeal, F & W argues that genuine issues of material fact remain as to (1) whether UAP subordinated its security interest to F & W’s $200,000 claim; and (2) whether promissory estoppel precludes UAP from asserting priority over F & W’s claim. We agree.

1. F & W argues that UAP subordinated its lien on Darley’s cotton crop to F & W’s claim, which entitled F & W to deduct $200,000 from the crop proceeds checks. The trial court rejected this argument, apparently because F & W received no written waiver or lien release. Under Georgia law, however, a written agreement is not necessary: “The legal order or priority as between mortgages and other liens or claims may be fixed, reversed, or modified by an agreement of the parties or by a waiver or release on the part of the senior lienholder. The agreement or waiver may be written or verbal.” Furthermore, even absent a specific agreement, a lienholder may waive priority by implication; “[w]ithout any agreement there may be facts and circumstances which would indicate an intention to make one of two [claims] prior to the other.”

The record contains evidence that a UAP representative encouraged Darley to secure advances on his cotton proceeds from F & W. Those advances allowed Darley to finish his harvest, which benefitted UAP. Evidence also indicates that, despite its security interest, UAP authorized Darley to receive the advanced funds directly, instead of jointly with UAP. Both Darley and F & W understood that F & W would recoup the advanced money from the cotton proceeds, and UAP did not initially object when it reviewed checks that clearly showed deductions for the advance. This evidence raises a question of fact as to whether UAP subordinated its interests in the crop proceeds to F & W’s claim.

On appeal, UAP argues that F & W enjoyed no security interest in the crop proceeds and thus had no interest that could take priority over UAP’s lien. Regardless of whether F & W was a secured creditor, however, subordination may have occurred. Under the Commercial Code, “a creditor may subordinate his right to payment of an obligation by agreement with either the person obligated or another creditor of the person obligated.” UAP could certainly elect to subordinate its claim to less than a secured creditor. F & W advanced Darley $200,000 on his future cotton sales. Factual issues remain as to whether UAP subordinated its security interest to F & W’s claim for these advanced funds. Thus, the trial court erred in granting summary judgment to UAP.

2. F & W also argues that the trial court erroneously granted UAP summary judgment on its promissory estoppel defense. We agree.

Under OCGA § 13-3-44 (a), “[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” To establish a promissory estoppel claim, a party must show that (1) the promisor made certain promises; (2) the promisor should have expected that the party would rely on the promises; and (3) the party relied on those promises to its detriment.

A promise is “a manifestation of an intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.” Darley’s testimony about his conversation with Martin raises a question of fact as to whether UAP manifested an intention to waive priority of its security interest and permit an advance on the cotton proceeds.

A fact question similarly remains as to the second promissory estoppel requirement. According to Darley, Martin encouraged him to seek the advance from F & W. Under those circumstances, a jury could find that UAP should have expected F & W, a third party, to rely on its promise.

Decided May 30, 2001

Reconsideration denied June 28, 2001

Ellis, Gatewood, Skipper & Farr, William D. Nesmith III, for appellants.

Gardner, Willis, Sweat & Goldsmith, Donald A. Sweat, Deena L. Plaire, for appellee.

Finally, Barrentine, F & W’s president, testified that he advanced Darley $200,000 after Darley told him about the arrangement with UAP, which either he or Darley verified in a telephone call with UAP. This testimony at least creates a factual issue as to whether F & W reasonably relied on the alleged promise.

Genuine issues of material fact surround F & W’s promissory estoppel defense. Accordingly, the trial court erred in concluding that this defense is “without merit as a matter of law.”

Judgment reversed.

Johnson, P. J., and Ellington, J., concur.

       F & W is a 25 percent managing member of King Cotton Gin, LLC. As its name suggests, King Cotton Gin gins cotton.

        Rent to Own v. Bragg, 248 Ga. App. 130 (1) (546 SE2d 9) (2001).

       (Citation and punctuation omitted.) North Ga. Sav. &c. Assn. v. Corbeil, 177 Ga. App. 523, 524 (1) (339 SE2d 779) (1986); see also Cameron v. Churchill Mtg. Corp., 249 Ga. 362, 363-364 (1) (290 SE2d 474) (1982).

        Mitchell v. West End Park Co., 171 Ga. 878, 887 (1) (156 SE 888) (1930). As noted in Mitchell, which involved land mortgages, “[a] mortgagee of land may be estopped to assert the priority of his lien as against a subsequent encumbrancer, when it would be unconscionable to enforce his security to the prejudice of such subsequent encumbrancer.” Id.

       (Emphasis supplied.) OCGA § 11-1-209.

       Id.; see also OCGA § 11-1-201 (12) (“ ‘Creditor’ includes a general creditor, a secured creditor, a lien creditor and any representative of creditors.”).

        Nickell v. IAG Fed. Credit Union, 213 Ga. App. 516, 519 (4) (445 SE2d 335) (1994); Presidential Financial Corp. v. Francis A. Bonanno, Inc., 244 Ga. App. 430, 434 (2) (535 SE2d 809) (2000).

       (Punctuation omitted.) DPLM, Ltd. v. J. H. Harvey Co., 241 Ga. App. 219, 221 (1) (526 SE2d 409) (1999).

       Id. at 221-222 (reliance must be reasonable and not based upon preconceived ideas). UAP claims that, as a matter of law, F & W acted unreasonably by relying on Darle/s representations about a promise allegedly made by UAP. Promissory estoppel, however, may apply to a promise that “induce[s] action or forbearance on the part of ... a third person.” OCGA § 13-3-44 (a). Clearly, a third party — here, F & W — can argue promissory estoppel even if the promise was not made directly to it. Given the facts of this case, the reasonableness of F & W’s reliance is a question for the jury. See Ambrose v. Sheppard, 241 Ga. App. 835, 837 (528 SE2d 282) (2000) (“Questions of reasonable reliance are usually for the jury to resolve”).


text:
    A01A0638.
    WASHINGTON v. CLARK et al.
    (550 SE2d 671)
   Miller, Judge.

This protracted medical malpractice action originated in events of November 1992 when plaintiff-appellant D’Arcy Washington was shot in the chest and shoulder during his attempt to burglarize a residence. Walton County emergency medical personnel responded and applied inflatable military anti-shock trousers (MAST), redirecting blood from Washington’s legs to his chest to maintain blood pressure to the vital organs, thereby preventing shock and death. Washington was transported to Georgia Baptist Medical Center where defendantappellee Michael D. Clark, M.D., the vascular surgeon on call that night, was summoned from home to perform emergency surgery on the unsuccessful burglar. Dr. Clark successfully treated the massive gunshot wounds. Ten days later, however, allegedly due to the negligent use or negligent monitoring of the MAST, Washington experienced renal failure, sepsis, and infection in his legs, requiring amputation of both legs above the knee to save his life.

This Court initially reversed the grant of summary judgment to Dr. Clark and other medical defendants because a timely filed expert’s affidavit created genuine issues of material fact. On certiorari, the Supreme Court of Georgia remanded the case to consider whether summary judgment for Dr. Clark was warranted by the statutory immunity afforded a voluntary health care provider under OCGA § 51-1-29.1. On remand, this Court adhered to its reversal of summary judgment, ruling that Dr. Clark’s affidavit testimony showing he received no compensation from the patient Washington or anyone acting on his behalf failed to establish that neither Dr. Clark nor his employer professional corporation “was [ever] compensated at all by anyone for the provision of on-call services generally, or for [his] visit to the emergency room in this instance.”

Renewing his motion for summary judgment, Dr. Clark submitted a revised affidavit, testifying that the nature of Washington’s wounds created a true emergency situation, that Dr. Clark’s assistance as the on-call vascular surgeon was voluntarily provided with no expectation of payment whatsoever, that Dr. Clark has not received any payment from any private person or public entity in connection with the services provided to Washington, and that Dr. Clark received no compensation for his general services as an on-call surgeon for Georgia Baptist. Similarly, Dr. Clark’s employer professional corporation received no private or public payments for Dr. Clark’s services to Washington or for his general services as an on-call surgeon.

Based on this evidence, the trial court granted Dr. Clark’s motion for summary judgment, and Washington appeals. Since no evidence contradicts this testimony, we are constrained to affirm.

1. No health care provider “who voluntarily and without the expectation or receipt of compensation provides professional services ... at the request of a hospital . . . shall be liable” for damages or injuries, including death, allegedly sustained by reason of an act or omission in rendering such services, unless such injuries were caused by gross negligence or wilful or wanton misconduct.

Relying on Henry v. Barfield, Washington first argues that the immunity afforded by OCGA § 51-1-29.1 applies only to emergency rescue efforts and immunizes only those health care providers who are not under a pre-existing duty to rescue. This contention is without merit. Henry v. Barfield is not binding precedent under Court of Appeals Rule 33 (a) because one judge concurred in the judgment only. And it purports to interpret OCGA § 51-1-29, the so-called Good Samaritan Statute, and not OCGA § 51-1-29.1, which is the only basis for any immunity applicable to this case. In our view, Dr. Clark’s revised affidavit establishes a prima facie case of immunity under OCGA § 51-1-29.1 in that neither he nor his professional corporation expected or received any payment for his on-call services, whether from a public or a private source.

Decided June 14, 2001

Reconsideration denied June 28, 2001

Zachary & Segraves, J. Ed Segraves, Charles M. Hardman, for appellant.

Hall, Booth, Smith & Slover, Alexander H. Booth, Howard W. Reese III, Harman, Owen, Saunders & Sweeney, H. Andrew Owen, Jr., Arnall, Golden & Gregory, Walter H. Bush, Jr., Gleaton, Persons, Egan & Jones, Frederick N. Gleaton, Alston & Bird, Robert D. McCallum, Jr., for appellees.

2. Washington nevertheless argues that this statutory immunity does not apply here because, he alleges, substantial portions of his hospital bill and physician charges were in fact paid by Medicaid. Plus, Georgia Baptist Medical Center billed Washington personally for $38,735 out of total expenses of $247,640 after Medicaid paid $208,905. There is no evidence, however, that any money Georgia Baptist received or that Medicaid paid was paid over to Dr. Clark or his professional corporation. Without proof that Dr. Clark or his professional corporation actually received money traceable to his voluntary on-call assistance generally or traceable to his assistance rendered specifically at the request of Georgia Baptist in Washington’s case, we conclude that this evidence does not contradict Dr. Clark’s prima facie entitlement to immunity under OCGA § 51-1-29.1.

Even though Washington initially received his injuries as a result of his own criminal conduct, we would allow the suit against Dr. Clark to proceed if Washington had submitted some evidence that either Dr. Clark or his corporation had expected to receive or did receive compensation for emergency room volunteer medical assistance generally or for this particular instance. Based on the complete absence of such evidence, however, we are constrained to hold that the trial court correctly granted summary judgment to Dr. Clark.

Judgment affirmed.

Eldridge, J., concurs. Andrews, P. J., concurs in judgment only.

        Washington v. Ga. Baptist Med. Center, 223 Ga. App. 762, 767 (3) (478 SE2d 892) (1996).

        Porquez v. Washington, 268 Ga. 649, 652 (3) (492 SE2d 665) (1997).

        Washington v. Ga. Baptist Med. Center, 230 Ga. App. 654 (501 SE2d 1) (1998).

       OCGA § 51-1-29.1 (a) (1). There is no contention that Dr. Clark was grossly negligent or that he acted wilfully or wantonly.

       186 Ga. App. 423 (1) (367 SE2d 289) (1988) (physical precedent only).

       Id.


text:
    A01A0796.
    JOHNSON v. THE STATE.
    (550 SE2d 113)
   Miller, Judge.

A jury convicted Ricky Charles Johnson of selling cocaine. Prior to trial, the State notified Johnson it would seek the imposition of a recidivist sentence under OCGA § 17-10-7 (a). Following the denial of his motion for new trial, Johnson filed this appeal. Johnson now asserts six reasons to reverse his conviction: a biased trial judge, ineffective counsel, insufficient evidence, and three erroneous evidentiary rulings during his trial. After review of these issues, we affirm.

When viewed in a light most favorable to the verdict, the evidence established that during an undercover drug operation, Johnson sold five bags of cocaine for $50. This drug transaction occurred in a motel room and was captured on a videotape shown to the jury at trial. On the night of the sale, a member of a narcotics task force, Special Agent Tasha Norris Peterson, was working undercover in tandem with “LA,” a confidential informant. After accompanying Agent Peterson to a local motel, LA telephoned Johnson, who came there later. Peterson personally saw LA hand over $50 to Johnson in exchange for five small pieces of crack cocaine that Johnson removed from a pill bottle. Prior to Johnson’s arrival, Peterson concealed a videotape camera. Peterson was questioned in considerable detail about parts of the video.

After being arrested and placed in custody, Johnson initialed a waiver of rights form and admitted to Agent Randall Snyder and Sergeant Randy Munday that he had, in fact, sold $50 worth of crack cocaine to LA. At trial, Snyder and Munday described Johnson’s demeanor, appearance, as well as the context and content of Johnson’s incriminating comments. A crime lab technician conducted a chemical analysis of the subject of the sale and confirmed it as being cocaine.

At the sentencing phase, the State presented certified copies of Johnson’s prior convictions which included financial card transaction theft, robbery, aggravated battery, possession of cocaine, and sale of marijuana. Johnson was sentenced as a recidivist.

1. Johnson contends that his rights to due process and to a fair trial and a fair hearing were violated because the trial judge was biased against him. In support of this allegation, Johnson points to three incidents: a colloquy between the trial court and the jury foreman after the jury deadlocked in his first trial, the court’s refusal to cooperate with scheduling a post-trial deposition of his trial counsel, and the court’s frequent interruptions of his lawyer during the motion for new trial hearing.

Motions to recuse must be timely and made as soon as the facts demonstrating the basis for disqualification become known. Uniform Superior Court Rule 25.1 requires that such motions must be made “not later than five (5) days after the affiant first learned of the alleged grounds for disqualification,” unless good cause is shown. If Johnson was aware of a possible basis for recusal, he had no right to sit back, hope for a favorable outcome at trial or sentencing or at the motion hearing, and then raise the issue for the first time on appeal. Absent the filing of a timely recusal motion accompanied by a legally sufficient affidavit, such motion is subject to denial on its face. Here we have neither. After the first trial ended in a mistrial, Johnson did not file a recusal motion. Nor did Johnson file a recusal motion between the second trial and the motion hearing. At no time was an affidavit filed. Consequently, he waived any objection to the judge’s presiding over his second trial or over the motion hearing.

Johnson argues that this rule should not apply here because neither he nor his counsel became aware of the colloquy between the trial court and the jury foreman until after the motion hearing. Even if true, Johnson has not shown the requisite harm and error needed for reversal. After declaring a mistrial and alarmed by certain remarks of the foreman, the judge decided to investigate whether a juror had violated his oath and whether a juror had refused to enter a guilty vote out of fear of reprisal. After conferring with the jurors, in order to alleviate a concern posed by a juror, the trial judge offered an opinion that since the State routinely retries cases, it would likely retry this one. That opinion was not indicative of any personal bias or prejudice toward the defendant. Nor did the comment show bias of such nature and intensity as to have prevented Johnson from obtaining a trial or a hearing “ ‘ “uninfluenced by the court’s [prejudice].”’” Because Johnson failed to raise the issue of trial court recusal at the earliest moment within the meaning of Pope v. State, this issue was not preserved for appellate review.

The transcript, moreover, discredits an unsubstantiated allegation that the trial court foreclosed or curtailed the presentation of the ineffectiveness claim. While Johnson’s trial counsel was being questioned during the motion hearing, the trial court interjected this observation: “I mean, how can somebody — and the Court of Appeals will decide this, but this is ridiculous for somebody to have a contract to pay an attorney and then fail to pay the attorney, doesn’t pay the attorney, then comes in and complains about what the attorney did for them. I don’t think the guy’s got standing. But go ahead, please.” The court emphasized, however, that this opinion “is not going to affect the ruling at all.” The examination of trial counsel then resumed. After Johnson testified, conceding that she had no further witnesses, counsel then articulated all the reasons forming the legal basis for the motion. Thus, the record does not substantiate this claim.

2. Asserting five reasons, Johnson contends that the trial court erred in denying his motion for new trial on ineffectiveness grounds.

To establish an ineffective assistance of counsel claim, an appellant must show not only that his trial counsel’s performance was deficient but also that the deficient performance prejudiced his defense. Failure to satisfy both requirements is fatal to an ineffectiveness claim. Also, unless the trial court’s ruling on an ineffectiveness claim is clearly erroneous, it must be affirmed. With those rules in mind, we now consider each purported deficiency.

(a) Johnson claims that he was not told about the range of punishment or informed of the State’s intent to introduce his prior convictions in aggravation. Counsel testified that he had a “very serious discussion” with Johnson about negotiating a plea because, in his view, the evidence against Johnson was “compelling.” Despite this advice, Johnson insisted on proceeding to trial. Johnson failed to offer any evidence to show that he had not been fully informed about the possible sentence upon conviction. Even if the evidence demanded a finding that Johnson’s attorney failed to inform him of the consequences of being sentenced as a repeat offender, that failure does not amount to ineffective assistance of counsel.

(b) Johnson argues that his trial counsel failed to file a motion to compel the identity and location of the confidential informant. According to his trial counsel, although the information was requested but was not disclosed, he did not pursue the issue because “Mr. Johnson knew this individual.”

(c) Johnson claims that his counsel did not file any discovery motions or prepare any jury charges. However, his counsel explained that under the district attorney’s open file policy, he had access to and reviewed the entire file. As to the jury charges, defense counsel explained that as a result of a charge conference, the instruction encompassed what “the defense wished.”

(d) Johnson complains that neither his brother, Kenneth Jones, nor his girlfriend, Victoria Byrd, were called to testify as witnesses. Defense counsel was not able to recall that Johnson had sought his girlfriend’s testimony. In any event, since neither Jones nor Byrd had been present during the drug sale, and Johnson admitted that he did, in fact, appear, on the incriminating videotape, it is unclear how either person’s testimony could have assisted his defense.

(e) Johnson claims that his counsel failed to obtain a copy of the transcript from the prior trial to enable him to explore inconsistencies in the testimony of witnesses. Defense counsel explained that no copy of the transcript from the first trial was obtained because Johnson failed to pay the court reporter and because he did not consider a copy of that transcript to be essential for the retrial.

3. Johnson contends that the evidence was insufficient to sustain the verdict. On the contrary, an undercover officer testified that she witnessed Johnson sell five pieces of crack to LA, a concealed camera captured the drug transaction on tape, and Johnson confessed to selling the drugs. This evidence was sufficient within the meaning of Jackson v. Virginia to sustain the jury’s verdict.

4. Johnson claims that his confession was improperly admitted into evidence. The trial court held a Jackson-Denno hearing and determined that Johnson’s oral statement was preceded by appropriate Miranda warnings and was voluntary. The record supports that determination. Since Johnson did not establish that the trial court clearly erred in finding that the confession was voluntary and admissible, no error occurred in permitting its admission.

5. Johnson contends that the trial court erred in allowing the contraband into evidence because a proper chain of custody was not established. When the State’s Exhibit 2, a clear plastic bag containing five small pieces of cocaine, was offered into evidence, defense counsel voiced no objection, noting, “I think we just had the chain of custody [shown].” Therefore, this issue must be considered waived.

Decided June 8, 2001

Reconsideration denied June 28, 2001

Arleen Evans, for appellant.

William T. McBroom III, District Attorney, Robert H. English, Assistant District Attorney, for appellee.

6. Johnson asserts that the trial court erred in admitting the videotape into evidence over objection. Defense counsel objected to the introduction of the tape on the ground that it was not the same tape as had been introduced at the earlier trial. The prosecutor then explained that this videotape was the original and that “at the time of the last trial, we didn’t have access to a recorder that played these 8mm tapes, so we had to copy it over to . . .a standard size VCR tape that we had in the last trial.” After defense counsel was permitted to view it outside the presence of the jury, no further objection was made.

Pretermitting consideration of whether the issue of the tape’s admission was, in fact, preserved, we find no error. Peterson, a witness to the events, identified the tape as the original recording of the crime scene and testified that it was a true and accurate depiction of what occurred that night. This was sufficient foundation for the tape’s admission. Although Johnson now claims that the videotape “had been altered, modified, and certain of the events were deleted,” Johnson has not offered a shred of evidence to support those allegations. Even assuming that scenes on the video appear somewhat blurry or the quality of the videotape is less than exemplary, such deficiencies merely go to the weight of the evidence and not to its admissibility.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        Pope v. State, 256 Ga. 195, 214 (26) (345 SE2d 831) (1986).

        Gillman v. State, 239 Ga. App. 880, 884 (2) (b) (522 SE2d 284) (1999).

        Daker v. State, 243 Ga. App. 848, 855 (21) (533 SE2d 393) (2000).

       See In the Interest of C. C. C., 188 Ga. App. 849, 850 (374 SE2d 754) (1988).

        Ellis v. State, 235 Ga. App. 837, 838 (4) (510 SE2d 127) (1998).

        Birt v. State, 256 Ga. 483, 486-487 (4) (350 SE2d 241) (1986).

       257 Ga. 32, 35 (2) (b) (354 SE2d 429) (1987).

        Harris v. State, 202 Ga. App. 618, 623 (7) (414 SE2d 919) (1992).

        Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844) (1997).

        Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997).

       See Johnson v. State, 266 Ga. 380, 383 (2) (467 SE2d 542) (1996).

        Gary v. State, 244 Ga. App. 577, 578 (536 SE2d 220) (2000); see Williams v. Duffy, 270 Ga. 580, 582 (1) (513 SE2d 212) (1999).

       See Robinson v. State, 164 Ga. App. 652, 654 (1) (297 SE2d 751) (1982) (sale of drugs complete when seller delivers the drugs to the feigned buyer).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Jowers v. State, 245 Ga. App. 773, 775 (5) (538 SE2d 853) (2000).

        Gadson v. State, 197 Ga. App. 315, 316 (1) (398 SE2d 409) (1990).

        Newton v. State, 226 Ga. App. 501, 503 (3) (486 SE2d 715) (1997).

       See Godfrey v. State, 227 Ga. App. 576, 577 (2) (489 SE2d 364) (1997) (entirely new basis for objecting to evidence cannot be raised and argued on appeal).

        Harper v. State, 213 Ga. App. 444, 447-448 (4) (445 SE2d 303) (1994).

        Ellison v. State, 242 Ga. App. 636, 637 (4) (530 SE2d 524) (2000).


text:
    A01A0502.
    GEORGIALINA ENTERPRISES, INC. v. FRAKES et al.
    (551 SE2d 95)
   Pope, Presiding Judge.

Lawrence and Patricia Frakes bought a car wash from Georgialina Enterprises, Inc. and partially financed the purchase by borrowing $100,000 from the sellers, evidenced by a purchase money promissory note and a deed to secure debt on the property. Six months later, Sunset Landings, Inc., a corporation formed by Mr. Frakes, entered into a promissory note in favor of Georgialina, which stated that it “superseded” the earlier note but that it was secured by the same deed to secure debt. The main issue on appeal is whether the second note functioned as a complete novation of the earlier note and thereby also nullified the deed to secure debt so that Georgialina no longer has any rights against the Frakeses or the property.

Sunset Landings signed the second note in 1996. Two years later after Georgialina concluded that someone failed to make payments, it issued a demand letter to the Frakeses in which it purported to accelerate the balance due. In response, the Frakeses filed suit against Georgialina and Wayne Raiford, its president, alleging that they fraudulently induced the Frakeses into buying the car wash. Georgialina and Raiford answered and counterclaimed on the note and for fraud in connection with a lakefront lot that was allegedly part of the consideration for the sale. They then sought summary judgment on the Frakeses’ claims and on their first counterclaim, i.e., the note. In response, the Frakeses amended their complaint to assert that the first note had been “extinguished, superseded and discharged” by the second note and that the deed to secure debt should be cancelled. The Frakeses then filed a cross-motion for summary judgment on the same issues. The Frakeses later dismissed their fraud claim against Georgialina, but not against Raiford.

The trial court held that the second note was a novation of the first and that it fully discharged the Frakeses from any obligation to Georgialina. The court then held that the deed to secure debt had “answered the object of its creation and, as a matter of law, must be canceled.” The court also found no evidence of fraud by Raiford. Accordingly, the court granted partial summary judgment in favor of the Frakeses on Georgialina’s counterclaim on the note and in favor of Georgialina on the Frakeses’ claim of fraud. Georgialina appeals the judgment on the note. The court did not rule on Georgialina’s second counterclaim and therefore that claim remains pending below.

In ten enumerations of error, Georgialina essentially contends that there are issues of fact and that the court erred by finding a novation of the note and by finding that a novation of the note would affect the security agreement. “It is well established that on appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. This requires a de novo review of the evidence.” (Citation and punctuation omitted.) Dumas v. Tripps of North Carolina, 229 Ga. App. 814 (495 SE2d 129) (1997). See also OCGA § 9-11-56 (c).

The undisputed facts show that the Frakeses purchased the property in 1995 with financing from a bank and from Georgialina. The bank took a superior security interest in the property, and ’Georgialina took a secondary position. The Frakeses were the promisors on the first note to Georgialina. Within months of the purchase, the Frakeses had difficulty making ends meet at the car wash. So, the Frakeses approached Raiford to negotiate a reduced interest rate on the note. Raiford agreed to reduce the rate from ten percent per year to eight. Frakes had his wife type the new note, and, at his instruction, she made it show Sunset Landings as the promisor. When asked if he told Raiford that he was changing the promisor, Frakes responded, “No. He read the thing before he signed it.” This statement directly confirms Raiford’s statement in his affidavit that, prior to signing the second note, he never discussed that Georgialina would release or discharge the Frakeses or give up the security in the property.

The great majority of the second note is identical to the first; it is fairly obvious that the first was copied to make the second. Indeed, Mrs. Frakes, who handles all of the accounting and bookkeeping for the couple and their corporation, stated that she used the existing promissory note to type the second and that the second was a verbatim copy of the first. The only significant differences are that the second note: (1) states that it “Supersedes Note dated 6/23/95”; (2) includes the lower interest rate and specifies a monthly payment that is less than what the lower rate would require, but establishes a balloon payment to make up the difference; (3) indicates that the principal amount of $98,000 equals the remaining balance on the first note; (4) is signed by Lawrence A. Frakes as president of Sunset Landings; and (5) is also signed by Raiford as president of Georgialina. Both notes have the following language about security: “This Note is secured by a Deed to Secure Debt dated June 23, 1995 executed by the undersigned in favor of the holder herein, conveying the property described on Exhibit ‘A’ attached hereto and which is more fully described in said Deed to Secure Debt.” And both notes contain a homestead exemption provision that obviously relates to the secured property.

Mrs. Frakes did not sign or consent to the second note. When questioned about the purpose of the second note, she explained that the only intended change was the interest rate reduction:

Q: Do you know who prepared the note?
A: I did.
Q: And it appears to be a note executed by or, at least it has a name on there of, Sunset Landings, Incorporated.
A: Yes.
Q: Were you intending to make a change in the promissory note, other than the interest rate?
A: No, sir.

Also,

Q: And it has your husband’s signature above the name Sunset Landings, Inc. and I think the word president around there somewhere.
A: Yes, sir.
Q: Was it your intention or your understanding that the corporation was being substituted for you and your husband individually?
A: No.

Again,

Q: Did you have a discussion, Ms. Frakes, with your, husband about what the purpose of [the second note] was?
A: Yes.
Q: You actually prepared the note?
A: Yes.
Q: And what was your discussion with your husband about what the purpose of [the second note was]?
A: To lower the interest rate.

Mr. Frakes testified that it was his intent to release himself and his wife from the obligation and put the obligation on the corporation instead. But, he also stated, “The only reason I had [the second note] prepared was to lower the interest rates.” When asked why the second note showed Sunset Landings as the promisor, Mr. Frakes responded, “Because Sunset Landings wasn’t in effect at the time that we signed the original note to Mr. Raiford. It was in process, but we hadn’t got the approval from the State for our corporation.” He also said, “We operate Sunset Landings exclusively for the car washes. So that’s why I have it signed as Sunset Landings and I signed it. This is owned by Sunset Landings.” Yet, the Frakeses remain the obligors on the debt to the bank, and the bank apparently retains its security interest in the property as owned by the Frakeses. Also, the Frakeses never transferred any interest in the car wash to Sunset Landings. Mr. Frakes stated in an affidavit that “Sunset Landings, Inc. has never had any legal or equitable interest in the Property.” Finally, in their verified pleadings, the Frakeses stated that they continued to make payments, personally, for at least three months after the second note was signed.

The Frakeses are not lawyers. Construed in favor of Georgialina, both Mr. and Mrs. Frakes’ testimony supports the inference that the only reason they put Sunset Landings on the second note was simply because they had established a corporation in the time between the two notes. And they thought that this simple fact meant that they should sign the note as the corporation even though they still understood that they were personally responsible for the loan and that the loan was still secured by the property. Given that the second note states that it supersedes the earlier note but that it also says it is subject to the same security interest, the note is ambiguous. The Frakeses may have used the word “supersede” to simply mean that the new interest rate and payment terms superseded those of the first note and that they intended all other aspects of the obligation to remain the same including the promisors and/or the security. Further, Mr. Frakes’ statement that he intended to release his wife and himself from obligation is contradicted by his and his wife’s testimony that they intended only to change the interest rate. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28-30 (1) (343 SE2d 680) (1986).

The relevant law of novation follows:

A novation or accord and satisfaction is in itself a contract and must have all the elements of a de novo contract. Therefore, there must be a meeting of the minds if the novation or accord and satisfaction is to be valid and binding. In every novation there are four essential requisites: (1) a previous valid obligation, (2) the agreement of all the parties to the new contract, (3) the extinguishment of the old contract, [and] (4) the validity of the new one. If these essentials, or any one of them, are wanting, there can be no novation. Thus, it must appear that the person substituted for the debtor was, by agreement between the creditor, the debtor, and himself, substituted for the original debtor, who was released from the promise. In other words, it must be shown that the person substituted as the debtor in the place of the person released [ ] became such as the result of an agreement in which all three concurred.

(Citations and punctuation omitted.) Griffiths v. Phenix Supply Co., 192 Ga. App. 651-652 (1) (385 SE2d 789) (1989). Further, “[t]he question of the parties’ mutual intention for an accord and satisfaction or novation is ordinarily a question of fact reserved for jury determination.” Feely v. First American Bank of Ga., 206 Ga. App. 53, 56-57 (2) (b) (424 SE2d 345) (1992). And parol evidence is admissible when determining whether a novation has occurred. Farmers & Merchants Bank &c. v. Rogers, 55 Ga. App. 38 (1) (189 SE 274) (1936).

Decided June 28, 2001.

Richard E. Miley, for appellant.

William A. Trotter III, for appellees.

The evidence in this case shows that, at a minimum, there are issues of fact regarding whether the parties intended for the second note to extinguish the security interest. See Williams v. Rowe Banking Co., 205 Ga. 770 (55 SE2d 123) (1949). In Williams, the Supreme Court held that a second note issued by a third party in lieu of the note by the original promisor, which left unchanged the security deed executed by the original promisor, was only a change in one of the terms of the original contract. It changed the source of payment, but not the associated security deed. Id. at 771-772. And, here, there may also be a question of mutual mistake regarding having Sunset Landings be the promisor on the second note. See Fox v. Washburn, 264 Ga. 617, 618-619 (2) (449 SE2d 513) (1994) (failure to read contract does not necessarily preclude a claim of mutual mistake of fact). Therefore the court erred in finding that there were no issues of material fact and in finding a novation as a matter of law.

Judgment reversed.

Blackburn, C. J., and Mikell, J., concur.

       The second note omits the words “on Exhibit ‘A’ attached hereto.’


author: Andrews, Presiding Judge.

text:
    A01A0504, A01A0505.
    SOUTHWEST GEORGIA AREA HEALTH EDUCATION CENTER, INC. v. ROWELL; and vice versa.
    (551 SE2d 99)
   Andrews, Presiding Judge.

In Case No. A01A0504, pursuant to the grant of interlocutory review, Southwest Georgia Area Health Education Center, Inc. (hereinafter referred to as SOWEGA) appeals from the trial court’s partial denial of its motion for summary judgment in its breach of contract suit against William Scott Rowell. In Case No. A01A0505, Rowell cross-appeals from the trial court’s partial grant of SOWEGA’s motion.

Pursuant to Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), we view the evidence in the light most favorable to Rowell. SOWEGA is a nonprofit corporation formed pursuant to the Public Health Act and guidelines and regulations of the Department of Health & Human Services for the purpose of seeking to improve the health services delivery system in southwest Georgia, especially rural and underserved areas. SOWEGA’s service area consists of 38 counties, which are specifically listed in Exhibit A to the contract at issue here and include Coffee County but not Wayne County.

SOWEGA had established a physician assistant (PA) training program with the Medical College of Georgia (MCG), known as the Satellite Physician Assistant Program. Through this program, SOWEGA was assigned by its contract with MCG eight of thirty-six available slots in the 1996 entering class of PA students. In 1995, Rowell applied directly to MCG for admission to the PA program. He had previously applied to MCG’s dental school and physical therapist program but was not accepted to dental school and did not timely apply for the physical therapy program. After applying to the PA program, he was given information by MCG on the SOWEGA program because he was then living in its service area. Rowell opted to have his application considered through SOWEGA.

Rowell was notified by letter of January 22, 1996, from SOWEGA that he had been selected to interview for “a position in the next SOWEGA . . . Satellite PA Program class.” Rowell was then interviewed at the Albany offices of SOWEGA on February 6, 1996. Rowell was not interviewed by MCG, although all students admitted through the general applicant pool must be interviewed by MCG faculty before admission. On March 6,1996, SOWEGA mailed Rowell a letter at the address which he provided, telling him he had been selected as an alternate. Rowell was then advised by letter of March 19, 1996, that his name was being recommended to MCG for admission through SOWEGA’s program. Included with both letters was a copy of the contract between SOWEGA and Rowell for his signature. On March 20,1996, SOWEGA sent a letter to MCG advising that one of the original eight students was not entering the program, but Rowell was to take her place. On March 25,1996, MCG sent Rowell a letter welcoming him to the program and enclosing an Acceptance Agreement, which he was requested to return to secure his place in the class.

For its PA program class entering in 1996, MCG received 712 applications. Of those, forty-four students, including Rowell, requested referral to SOWEGA in order to be considered for one of SOWEGA’s eight slots. One hundred seven applicants were forwarded to other Area Health Education Centers (AHEC) for consideration in their programs, leaving a “general pool” of 561 applicants to be considered directly by MCG.

In excess of eighteen percent of the forty-four SOWEGA applicants were admitted to the program, while only three percent of the applicants not considered through an AHEC were admitted in 1996. According to the director of the PA program at MCG, Rowell would not have been admitted to the program if he had been considered from the general pool.

On April 1, 1996, Rowell signed the contract with SOWEGA. On April 30, Rowell signed and returned to MCG the Acceptance Agreement. Rowell thereafter completed the two-year program, graduated in 1998, and was licensed as a PA in Georgia.

While participating in the SOWEGA program, on February 20, 1997, Rowell signed a contract with Coffee County Regional Hospital, pursuant to which he was advanced $36,000 during his training. Rowell agreed to work for the hospital upon graduation. Instead, he went to work for a doctor in Wayne County, which was not in SOWEGA’s service area.

The contract provides, in its first numbered paragraph, that

SOWEGA-AHEC hereby agrees to submit Student’s name to Medical College of Georgia Physician Assistant Program to fill one of the slots designated by Medical College of Georgia Physician Assistant Program to SOWEGA-AHEC, with the result that Student may be accepted as a physician assistant student at Medical College of Georgia Physician Assistant Program. Thereafter, Student will be entitled to participate fully in all Satellite Program activities and benefits. At the time of signing this contract, these benefits include, but are not limited to, assistance in arranging clinical rotations, assistance in arranging lodging during assignment to clinical rotations, reimbursement of certain travel expenses necessitated by clinical rotations as funds are available, assistance in arranging use of required textbooks, and orientation program prior to commencement of Student’s academic program, and assistance in locating employment to comply with Paragraph 4 below.

(Emphasis supplied.)

Paragraph 4 provided that, upon successful completion of the program, Rowell would accept employment only within SOWEGA’s thirty-eight-county service area and would complete two years service in that area.

Case No. A01A0505

SOWEGA sued, seeking recovery of the liquidated damages of $36,000 provided by Paragraph 5 of the contract. Rowell’s original answer pled lack of consideration, breach of contract by SOWEGA, and that Rowell was approved by the program “prior to the execution of this Contract.” In his amended answer, Rowell claimed “great inadequacy of consideration” amounting to fraud. The trial court granted partial summary judgment to SOWEGA, finding the contract, including the liquidated damages clause, enforceable.

We conclude that the trial court’s order fully, adequately, and correctly explains the reasons for this partial grant of summary judgment and hereby adopt that order as our own, with the exception of the paragraph regarding textbooks, which is addressed in Case No. A01A0504. Therefore, the partial grant of summary judgment is affirmed.

Case No. A01A0504

In partially denying the motion for summary judgment, the trial court stated that

[SOWEGA] contracted to provide [Rowell] with “assistance in arranging use of required textbooks.” Unlike the foregoing provision related to housing, a student about to embark on a professional training course could reasonably construe this provision to mean that textbooks would be supplied at the expense of [SOWEGA]. [Rowell] testified that he had to purchase between fifty and one hundred textbooks, and that he was offered only one book by [SOWEGA]. After applying the rules of contract construction, the Court concludes that an ambiguity remains as to this provision, and thus a jury will need to determine its import. As is the case with the alleged failure to arrange for adequate housing, this alleged breach by [SOWEGA] did not prevent the parties from performing the contract and [Rowell] is not relieved of his obligations thereunder but can seek damages. If the construction put forward by [Rowell] is accepted, he would be entitled to set-off the cost of his textbooks against his contractual liability to [SOWEGA], in an amount to be determined by the jury.

(Emphasis supplied.)

The construction of a contract is a question of law for the trial court. OCGA § 13-2-1. In construing contracts, the trial court should apply the three-step process of contract construction.

First, if no ambiguity appears, the trial court enforces the contract according to its terms irrespective of all technical or arbitrary rules of construction. Thus, where the terms of the contract are clear and unambiguous, the court looks only to the contract to find the parties’ intent. Second, if the potential for ambiguity appears, the existence or non-existence of an ambiguity is itself a question of law for the court, unless an ambiguity remains even after the court has applied the pertinent rules of contract construction. [OCGA § 13-2-2.] Finally, issues of contract construction will be submitted to the jury only when there appears to be an ambiguity in the contract which cannot be resolved by the court’s application of the statutory rules of construction.

(Citations omitted.) Gill v. B & R Intl., 234 Ga. App. 528, 530 (1) (a) (507 SE2d 477) (1998). See also Ga. Assn. of Educators v. Paragon Productions, 238 Ga. App. 681, 682 (520 SE2d 37) (1999).

Here, the only claimed ambiguity is with “assistance in arranging use of required textbooks.” In this instance, unlike when considering the contract provisions regarding assistance with clinical rotations and housing, the trial court went beyond the four comers of the contract and engaged in speculation to conclude that “assistance” with regard to textbooks meant that SOWEGA would provide all required textbooks at no charge to Rowell.

“ A word or [a] phrase is ambiguous when it is of uncertain meaning and may be fairly understood in more ways than one.’ [Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 497 (1) (455 SE2d 601) (1995).]” Garrett v. Women’s Health Care &c., 243 Ga. App. 53, 57 (3) (532 SE2d 164) (2000). Assistance cannot be said to be of uncertain meaning or understood in more than one way. Assist means to “aid; help.” American Heritage Dictionary (2nd college ed. 1985), p. 135.

Considering the contract as a whole, we conclude that its terms are clear and unambiguous, requiring no construction. Even assuming an ambiguity can be found, however, we find it was resolvable by applying the contract construction rules of OCGA § 13-2-2, and SOWEGA was entitled to summary judgment on this issue. Because Rowell acknowledged that he received at least one textbook from SOWEGA, even assuming that “assistance” was mandatory, assistance was provided to Rowell regarding textbooks, applying the normal meaning to “assistance” as mandated by OCGA § 13-2-2 (2). Thomas v. American Global Ins. Co., 229 Ga. App. 107, 108 (2) (493 SE2d 12) (1997). Therefore, Rowell has failed to show any breach of the agreement which would entitle him to a set-off, and SOWEGA was entitled to summary judgment on this issue also.

Decided June 28, 2001.

Langley & Lee, Donald W. Lee, Paula K. Jernigan, for appellant.

Robert B. Smith, for appellee.

Judgment affirmed in part and reversed in part in Case Nos. A01A0505 and A01A0504.

Eldridge and Miller, JJ, concur.

       Other Area Health Education Centers served other underserved areas of Georgia.