text:
    A91A1797.
    CROUCH v. CSX TRANSPORTATION, INC.
    (417 SE2d 216)
   Cooper, Judge.

Appellant was driving over a one-lane railroad overpass, constructed by appellee, when he swerved to avoid an oncoming vehicle. Appellant’s vehicle crashed through the guardrails on the overpass and fell onto the tracks below. In an action for personal injuries against appellee, appellant alleged that appellee was negligent in its construction and maintenance of the bridge in that the bridge was “totally inadequate for modern day traffic.” In its answer, appellee admitted owning the bridge but stated that the bridge was part of the Cobb County road system and that maintenance responsibilities with respect to the bridge were set forth by law. After discovery, appellee moved for summary judgment. Granting summary judgment, the trial court found that the bridge was on a road which appellee demonstrated to be a part of the Cobb County road system and that pursuant to OCGA § 32-6-199, the determination as to when an existing overpass becomes unsafe to serve the traffic for which the overpass was constructed is the responsibility of the road authority. Appellant appeals the grant of summary judgment.

Appellant enumerates as error the trial court’s determination that the bridge was part of the Cobb County road system. Appellant concedes that the road on which he was travelling is a part of the county road system but contends that the accident occurred on the bridge and that appellee failed to present any evidence that the bridge was part of the county road system, such as a deed conveying the bridge to the county. Appellant submitted the deposition of Archie Burnham (“Burnham”), a former official with the Georgia Department of Transportation (“DOT”), who offered, by way of hearsay testimony from unidentified Cobb County officials, that the bridge was under the jurisdiction of the railroad and that ownership of the land had not been transferred to the county at the time of the accident. Appellant urges, therefore, that there is at least a presumption that appellee retained control of the bridge. Appellant also argues that OCGA § 32-6-197 (b) requires appellee’s maintenance of the bridge.

“ ‘ “While the moving party on a motion for summary judgment has the burden of establishing the non-existence of any material fact and all doubts are resolved in favor of the party opposing the motion, the burden of proof can be shifted . . . when a prima facie showing is made that the moving party is entitled to judgment as a matter of law. The opposing party must come forward with rebuttal evidence at that time or suffer a judgment against him.” . . . (Cit.)’ [Cit.]” (Emphasis omitted.) Spicewood, Inc. v. Dykes Paving &c. Co., 199 Ga. App. 165, 168 (2) (404 SE2d 305) (1991). In support of its motion for summary judgment, appellee submitted the affidavit of an official from the DOT in which the official averred that the DOT County Bridge Report, dated six months prior to appellant’s accident, pertaining to the “bridge on Concord Road in Cobb County” over CSX’s right-of-way, indicated that the bridge was identified by a serial number in the DOT system of numbering and that Concord Road was part of the Cobb County road system. We agree with the trial court that appellee established that the road on which the bridge is located and the bridge are part of the Cobb County road system. Appellant has put forth no admissible rebuttal evidence to the contrary. See Strickland v. DeKalb Hospital Auth., 197 Ga. App. 63 (2a) (397 SE2d 576) (1990).

Furthermore, appellee points out that in Burnham’s deposition, he specifically set forth the alleged defects in the bridge, and while questioning the use of a one-lane bridge on a permanent basis, Burn-ham did not offer an opinion regarding specific defects in the basic structure of the bridge and conceded that the bridge complied with minimum standards at the time it was constructed. Thus, appellant raised no genuine issue of fact with regard to the construction of the bridge. However, Burnham did testify that the bridge was inadequate for the proper and safe control of motorists by current standards because of the devices selected for traffic control and assignment of the right-of-way on the structure, i.e., the yield sign on one of the approaches to the bridge and hazard boards affixed to the bridge. Burn-ham also testified that the handrail and guardrail systems on the bridge did not adequately contain vehicles on the structure. OCGA § 32-6-199 provides, “[w]henever an existing underpass or overpass involving railroads is unsafe or inadequate to serve reasonably the traffic for which it was constructed, the department, the county, or the municipality may proceed to bring about improvement of said existing structure.” According to OCGA § 32-6-197 (b), the county is responsible for maintaining, at its own expense, “the drainage, surface, pavement, approaches, and guardrails of all overpasses involving railroads on its respective public road system[,]” and pursuant to OCGA § 32-6-50, the county is also responsible for placing and maintaining, within its public road system, traffic control devices sufficient to regulate, warn, or guide traffic. On the other hand, railroads are required “to maintain . . . any floors constructed of wood and the foundations, piers, abutments, and superstructures of all overpasses on the county . . . public road system.” OCGA § 32-6-197 (b). Appellee has indisputably established that the specific defects alleged by appellant’s expert are within the county’s statutory responsibility; therefore, based on the foregoing we conclude that the trial court did not err in granting summary judgment to appellee.

We need not reach appellant’s remaining enumerations of error as we have determined that appellee cannot be liable for the defects alleged by appellant as a matter of law.

Decided March 17, 1992

Reconsideration denied April 1, 1992.

Falanga, Barrow & Chalker, Robert A. Falanga, Jesse E. Barrow III, for appellant.

Awtrey & Parker, Toby B. Prodgers, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A91A1831.
    PATEL et al. v. ALPHA INVESTMENT PROPERTIES, INC. et al.
    (417 SE2d 739)
   Beasley, Judge.

Plaintiffs Sumanbhai Naranbhai Patel and Sharadkumar Sumanbhai Patel appeal the grant of partial summary judgment to defendants Alpha Investment Properties, Inc. (formerly J. A. Patel Group, Inc.), Niranjan Naranbhai Patel, Jayantibhai Naranbhai Patel and Mayur Jayantibhai Patel, in this action for declaratory relief resulting from the alleged breach of a settlement agreement.

After consideration of the enumerations of error and the arguments advanced by the parties and upon examination of the record, no reversible error of law appears and a lengthy opinion would have no precedential value.

However, this case is remanded for the court to modify its order by striking the grant of judgment to defendants on the claims involving absent parties, the court having properly dismissed those claims pursuant to OCGA § 9-11-19 (b). See OCGA § 9-11-41 (b). Compare Pickett v. Paine, 230 Ga. 786, 796 (4) (a) (199 SE2d 223) (1973); Brunswick Floors v. Carter, 199 Ga. App. 110, 111 (1) (403 SE2d 855) (1991); Warrior Constructors v. E. C. Ernst Co., 127 Ga. App. 839, 840 (195 SE2d 261) (1973); Brooke v. Phillips Petroleum Co., 113 Ga. App. 742, 744 (2) (149 SE2d 511) (1966). The undisputed material evidence supports the judgment. The intent of the parties is determinable from the four corners of the settlement agreement and, as a matter of law, the intent is that which is set out in the detailed and well reasoned judgment of the trial court, which adequately explains the decision. OCGA §§ 13-2-3; 13-2-2; Paul v. Paul, 235 Ga. 382, 384 (219 SE2d 736) (1975); Carsello v. Touchton, 231 Ga. 878 (204 SE2d 589) (1974).

Judgment affirmed in part and case remanded with direction.

Decided February 25, 1992

Reconsideration denied April 1, 1992

Rogers & Hardin, John J. Almond, Jennifer D. Roorback, for appellants.

Fendig, McLemore, Taylor & Whitworth, Gilbert C. McLemore, Jr., Brennan & Wasden, Joseph P. Brennan, Mary R. Piette, for appellees.

Carley, P. J., and Judge Arnold Shulman concur.


author: Pope, Judge.

text:
    A91A1863.
    ESCHENA v. THE STATE.
    (417 SE2d 214)
   Pope, Judge.

Defendant Anthony Eschena and two co-defendants, Huffman and McKinney, were accused of armed robbery of a convenience store. The co-defendants pled guilty and the pleas were accepted on the condition that they give truthful testimony at defendant Eschena’s trial. Defendant was convicted and appeals.

1. At trial, co-defendant Huffman testified that defendant actively participated in the robbery. Guns and a ski mask identified as those used in the commission of the crime were found in the defendant’s trailer. We reject defendant’s argument that the evidence was insufficient to enable a rational trier of fact to find proof of guilt beyond a reasonable doubt. The testimony of the co-defendant, corroborated by circumstantial evidence, was sufficient to support the conviction. See OCGA § 24-4-8. Although the second co-defendant refuted his earlier statements and testified that he committed the crime alone without defendant’s assistance, the credibility of the witnesses and the weight to be'given their testimony is a question of fact for the jury. See Lawrence v. State, 198 Ga. App. 287 (4) (401 SE2d 275) (1991). Sufficient evidence was presented for the jury to find defendant guilty beyond a reasonable doubt.

2. The second co-defendant, McKinney, gave earlier sworn and unsworn statements that defendant committed the crime, but at trial refuted those statements and testified he committed the crime alone, without defendant’s assistance. Ultimately, the witness became belligerent and, after consulting his own attorney, informed the trial court he wished to withdraw his guilty plea and refused to testify further. The State then offered the witness use immunity for his testimony at defendant’s trial, but he continued to refuse to testify.

Defendant argues the trial court violated his right to due process by failing to strike the testimony of the recalcitrant witness. We note, however, that defendant’s attorney never moved to strike the testimony. An error not raised at trial cannot be considered on appeal. Barnwell v. State, 197 Ga. App. 116 (397 SE2d 717) (1990). Defendant also argues the trial court erred by vacating the witness’ sentence on his guilty plea, thereby denying defendant the opportunity to cross-examine him because he then had the right to refuse to testify. First, we note that the withdrawal of the witness’ guilty plea was never accepted by the trial court. Moreover, the witness was offered use immunity, after which he had no right to refuse to testify. See OCGA § 24-9-28. After use immunity was offered, no further questions were asked of the witness. Defendant’s counsel had already cross-examined the witness before he stated his desire to withdraw his plea and testify no further. Defendant’s counsel then refused to question the witness further, “whether that’s a waiver or not . . . .” After the offer of use immunity, defendant’s counsel was again offered the opportunity for further cross-examination but he declined. At the request of the prosecuting attorney, the trial judge offered the defendant, himself, the opportunity to ask questions of the witness, but he also declined. Thus, the record shows defendant exercised the opportunity to cross-examine the witness and expressly waived his right for further cross-examination after use immunity was offered to the witness. No denial of due process is shown.

3. We also reject defendant’s argument that the trial court violated his right to due process and to a fair trial by allowing the prosecuting attorney to “pistol whip” the recalcitrant witness when he refused to incriminate the defendant. We have examined the record and, contrary to defendant’s argument, conclude no improper threats or comments were made by the prosecuting attorney in the presence of the jury. He was merely reminded, outside the presence of the jury, that the sentence based on his negotiated guilty plea could be vacated and informed that he was subject to prosecution for perjury for inconsistent sworn statements made to the court. Moreover, the record shows the witness never changed his testimony after he was so admonished and never offered testimony incriminating to the defendant. In light of the witness’ prior inconsistent statements incriminating the defendant, the State’s efforts to impeach him were proper. See Warren v. State, 197 Ga. App. 23 (397 SE2d 484) (1990). The credit to be given a witness’ testimony after he has been impeached by contradictory out-of-court statements is a question for the jury. Arnold v. State, 198 Ga. App. 514 (402 SE2d 312) (1991).

Judgment affirmed.

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

Decided March 16, 1992

Reconsideration denied April 1, 1992

Alden W. Snead, J. M. Raffauf, for appellant.

David McDade, District Attorney, for appellee.


author: Cooper, Judge.

text:
    A91A1871.
    THE STATE v. THOMAS et al.
    (417 SE2d 328)
   Cooper, Judge.

The State appeals from the grant of defendants’ motions to suppress evidence seized from their residence during a search conducted pursuant to a search warrant. Following- the search, defendants, George and Mattie Thomas, were charged with violations of the Georgia Controlled Substances Act.

The search warrant was issued for a search of George Thomas’ residence, more particularly identified in the warrant as the fifth trailer in a row of 'trailers located on a specified dirt road in Murray County. The affidavit submitted in support of the search warrant was executed by a narcotics agent with a north Georgia drug task force. The affiant stated that within seven days of 11/17/90, he conducted a controlled buy of marijuana with a confidential informant from a subject known to the informant as George Thomas; that affiant conducted a thorough search of the confidential informant prior to commencement of the operation; that affiant provided the informant with $60 in county funds and maintained a constant surveillance of the informant while the informant went to the residence listed in the application for the warrant; that the informant made a buy of a green leafy substance contained in a plastic bag; that the substance cost $50; and that at the completion of the operation, the informant gave affiant the plastic bag and $10 change. The affidavit also stated that within seven days of 12/19/90, affiant conducted another controlled buy of a green leafy substance from George Thomas at the same residence using the same informant and the same surveillance procedure, and that upon completion of the opération, the informant again gave affiant a plastic bag containing a green leafy substance which the informant stated he had purchased for $50. The affidavit further stated that the results of a field test on the green leafy substance showed that the substance was marijuana; that the car in the driveway of the residence where the purchase was made was registered to Mattie Thomas; and that the owner of the trailer where the purchase was made was George Thomas. The informant also identified a photograph of George Thomas as the person from whom he purchased the marijuana. A search of the residence revealed approximately 60 plastic bags of marijuana as well as items commonly associated with the sale of marijuana.

At the hearing on defendants’ motion to suppress, the affiant testified that prior to the first buy, he searched the informant’s person and his car; that he gave the informant $60; that he followed the informant into the trailer park in a separate vehicle and maintained surveillance from approximately 50 yards away; that he saw the informant stop his car in front of trailer #5, exit his vehicle and go to trailer #5; that although he could not see the informant enter the trailer, he could see all of the other trailers in the park; that the informant did not go into any of the other trailers; that he followed the informant from the trailer park and received from him the suspected marijuana and $10. With respect to the second buy, affiant testified that he searched the informant and his car; that he followed the informant to the trailer park in a separate vehicle; that he surveilled the informant from the same location as during the first buy; and that he observed a male figure walk from trailer #5 to the driver’s side of the informant’s vehicle, but he could not see the male figure clearly enough to identify the person.

The trial court found that the affiant’s statement in the affidavit that he maintained a “constant surveillance” of the informant while at the residence during the buys was a false statement given the affiant’s testimony at the hearing that he did not actually see the transactions. We do not agree. Although the affiant’s use of the words “constant surveillance” may have implied to the trial judge that the agent observed the entire transaction, including the handing over of money in exchange for the drugs, we cannot conclude that this is the only implication flowing from those words. The affidavit contains facts which constitute circumstantial evidence of the sale, and arguably suggest that the actual transaction was not observed by the affiant. However, “[t]here is no evidence that material misrepresentations were knowingly or recklessly included in the affidavit, and there was no showing of misconduct on the part of the affiant. [Cit.]” Hayes v. State, 182 Ga. App. 319, 320 (1) (355 SE2d 700) (1987). Consequently, we cannot conclude that the affiant obtained the warrant through a material misrepresentation in the affidavit. See McQueen v. State, 189 Ga. App. 743 (377 SE2d 682) (1989). Furthermore, we note that even if the affiant’s statement regarding constant surveillance is excised from the affidavit, the remaining information is sufficient to show probable cause; therefore, the search warrant is valid. Rimmer v. State, 197 Ga. App. 294 (1) (398 SE2d 282) (1990).

Nor do we find the affiant’s inability to identify defendant George Thomas as the person from whom the informant purchased the marijuana to be a basis for the trial court’s grant of the motion to suppress. “The task of the issuing magistrate is simply to decide whether, under the totality of the circumstances, ‘ “there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud(ing)’ that probable cause existed.” ’ [Cit.]” Pinkston v. State, 189 Ga. App. 851, 854 (4) (377 SE2d 864) (1989). Although the affiant could not positively identify the person who sold the marijuana to the informant, there was probable cause to believe that the marijuana would be found at the premises described in the warrant.

Decided January 15, 1992

Reconsideration denied April 1, 1992

Jack O. Partían III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellant.

William W. Keith III, for appellees.

For the foregoing reasons, we conclude that the trial court erred in granting defendants’ motion to suppress.

Judgment reversed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1885.
    DAWSON CONSTRUCTION COMPANY, INC. et al. v. GEORGIA STATE FINANCING & INVESTMENT COMMISSION.
    (417 SE2d 190)
   Pope, Judge.

In June 1985, plaintiff/appellant Dawson Construction Company, Inc. (“Dawson”) entered into a construction contract (the “Contract”) with defendant/appellee Georgia State Financing and Investment Commission (“GSFIC”) to renovate the Old State Office Building owned by GSFIC (the “Project”). On March 2, 1988, Dawson submitted Periodical Estimate No. 29 seeking to be paid $1,065,057.16 for work performed at the Project and retainage.

On March 4, 1988, Tom Dawson, president of the construction company, met with Bill Roberts of the GSFIC to review various claims filed by Dawson and its subcontractors seeking damages for a series of delays at the Project allegedly caused by defective plans and specifications prepared by GSFIC’s architect. Two of the subcontractors who had claims pending at this time were Hays Heating & Plumbing Company (“Hays”) and Ralph A. Davis Construction Company, Inc. (“Davis”). Another subcontractor, Centin Corporation, had not yet filed a claim but did so later. During this meeting, GSFIC apparently asserted claims against Dawson in the amount of $593,126 allegedly caused by Dawson’s defective or unfinished work on the Project. At the end of the meeting, both parties agreed to defer negotiation of their respective claims until a later date. Tom Dawson claims that at no time during the meeting did Bill Roberts dispute the amount of money claimed by Dawson in Periodical Estimate No. 29.

On March 9, 1988, GSFIC sent Dawson a check in the amount of $863,599.06 made payable to Dawson and its surety. The back of the check contained an endorsement which read: “NEGOTIATION OF THIS CHECK CONSTITUTES PAYMENT IN FULL OF ITEMS LISTED ON THE VOUCHER.” The accompanying voucher provided: “FINAL PAYMENT EXCEPT FOR THE SUM OF $200,000.00 WITHHELD FOR INCOMPLETE WORK.” An accompanying memorandum quoted from Article E-25 (b) of the Contract as follows: “Acceptance of the final payment shall operate as and shall be a release to the owner from all claims of any kind or character under the contract except for such specific amount or amounts as may have been withheld to cover the fair value of any incomplete work, which has been certified by the architect under the provision of Paragraph (d) of Article 5 of the Form of Agreement as incomplete through no fault on the part of the contractor.” The bottom of the memorandum also noted that $200,000 was being withheld for incomplete work.

On March 11, 1988, Dawson wrote Bill Roberts a letter seeking confirmation of the agreement reached during the March 4 meeting to defer review of outstanding subcontractor claims. Dawson also noted that despite the conditional language on the voucher and memorandum providing that the check represented final payment except for $200,000 withheld for incomplete work. Dawson was not, by accepting the check, waiving its right to assert the various claims for damages by Dawson and its subcontractors.

On March 15, 1988, Mr. Roberts wrote to Dawson stating that during the March 4 meeting, Dawson agreed to give up one of its claims, referred to as the “granite claim,” if GSFIC paid a substantial portion of the retainage being held by GSFIC. According to the letter, it was in reliance on this agreement that GSFIC paid Dawson $863,599.06 as final payment less the sum of $200,000 withheld for incomplete work. GSFIC went on to deny certain of the pending subcontractor claims, but specifically noted that the claims made by Hays and Davis were considered still pending. After reminding Dawson that GSFIC also had unresolved claims against the construction company in the amount of $595,126 for defective or unfinished work on the Project, GSFIC offered to execute a mutual release or covenant not to sue if the parties agreed to settle their claims against each other. In such case, GSFIC would issue Dawson a check for the remaining $200,000 of retainage. Neither party acted on this proposal.

After Dawson received Robert’s March 15 letter, it deposited the March 9 check first marking out the language on the back. GSFIC argued in support of its motion for summary judgment that Dawson’s acceptance of the March 9 check constituted an accord and satisfaction of all claims by Dawson and its subcontractors, except the claims made by Hays and Davis. The alleged accord and satisfaction included Dawson’s claim for the balance of retainage requested in Periodical Estimate No. 29 in the amount of $200,000.

On August 8, 1988, Dawson wrote GSFIC requesting one-half of the $200,000 retainage being withheld for incomplete work. On August 18, 1988, GSFIC issued Check No. 4123 payable to Dawson and its surety in the amount of $100,000. The back of the check contained the same conditional language as on the March 9 check referencing the voucher. The accompanying voucher provided: “FINAL PAYMENT EXCEPT FOR THE SUM OF $100,000.00 WITHHELD FOR INCOMPLETE WORK.” The memorandum accompanying the check and voucher stated that the memorandum supplemented the March 9 memorandum, and that $100,000 was being withheld for incomplete work. GSFIC argued in support of its motion for summary judgment that Dawson’s acceptance of the August 18 check constituted an accord and satisfaction of Hays’ and Davis’ claims, the only remaining claims under the Contract. Thus, it is GSFIC’s contention that an accord and satisfaction occurred in two parts, each covering separate and independent claims which, taken as a whole, encompassed all of Dawson’s claims on behalf of itself and its subcontractors.

On October 5, 1988, Dawson wrote GSFIC requesting payment of the remainder of the retainage and asked GSFIC to make a decision about the pending claims of Dawson and its subcontractors. On November 18, 1988, Bill Roberts responded by letter, stating that he had reviewed the claims of Dawson’s mechanical and drywall subcontractors with GSFIC’s architect and was denying them. (Although the record is not clear, Hays appears to be the referenced mechanical subcontractor, and Davis, the referenced drywall subcontractor.) The letter further provided: “We are anxious to make final payment as soon as possible. Final payment will be made promptly after all requirements of the contract have been met.” One of the requirements for final payment set forth in the letter was the delivery of a final certificate from the architect. On June 26, 1989, Dawson provided GSFIC with a statutory affidavit, but GSFIC never paid any further money to Dawson. Thereafter, Dawson, for itself and on behalf of Hays, Davis and Centin Corporation, which by this time had filed a claim against GSFIC for delay damages, brought this action to recover damages against GSFIC. GSFIC answered the complaint and raised as one of its defenses, accord and satisfaction. GSFIC also filed a counterclaim against Dawson for damages incurred by GSFIC as a result of Dawson’s incomplete and defective work on the Project.

On August 16, 1989, two days after GSFIC’s answer in this action was filed, GSFIC sent Dawson a third check in the amount of $90,770.73 made payable to Dawson and its surety. This time the accompanying voucher and memorandum contained the following language: “FINAL PAYMENT AND SETTLEMENT OF ALL CLAIMS AND SUITS EXCEPT FOR THE SUM OF $7,500.00 WITHHELD FOR INCOMPLETE WORK.” Thus, three checks were tendered by GSFIC containing the language “final payment.” The third check was never negotiated by Dawson and was eventually returned to GSFIC at the request of GSFIC’s attorney, after the attorney notice GSFIC’s counterclaim in the action exceeded the amount of the check.

GSFIC moved for summary judgment on Dawson’s complaint based on its affirmative defense of accord and satisfaction. Relying on Wood Bros. Constr. Co. v. Simons-Eastern Co., 193 Ga. App. 874 (389 SE2d 382) (1989), the trial court granted GSFIC summary judgment, ruling that because the March 9 and August 18 checks along with the accompanying vouchers and memoranda contained language denoting payment in full, “there appears to be no issue of material fact concerning the requisites of an accord and satisfaction being met in this case.”

On appeal, Dawson claims the trial court erred in granting summary judgment to GSFIC because genuine issues of material fact exist as to: (1) whether there was a passage of benefit, advantage or consideration to Dawson, as a result of the purported accord and satisfaction (OCGA § 13-4-102); (2) whether there as a bona fide dispute as to the amount due Dawson which was communicated to Dawson (OCGA § 13-4-103 (b) (1); (3) whether there was a meeting of the. minds as to which of Dawson’s claims were encompassed by the purported accord and satisfaction (see State Farm Fire &c. Co. v. Fordham, 148 Ga. App. 48 (2) (250 SE2d 843) (1978)); (4) whether the conditional language used on the three checks met with the requirements of OCGA § 13-4-103 (b) requiring “payment in full” or language of equivalent condition be placed on checks; (5) whether GSFIC presented evidence of satisfaction of the purported accord (OCGA § 13-4-103 (a)); and, (6) whether GSFIC waived the effect of any purported accord and satisfaction by its subsequent actions (see Motorola Communications &c., Inc. v. South Ga. &c. Gas Co., 104 Ga. App. 376 (2) (121 SE2d 672) (1961)).

1. We first reject Dawson’s arguments (1), (2), (4) and (5), above, in accordance with our holding in Wood Bros. Constr. Co. v. Simons-Eastern Co., supra..

2. We next consider Dawson’s argument (3), that a question of fact remains as to whether there was a meeting of the minds between GSFIC and Dawson as to which of Dawson’s claims were encompassed by the accord and satisfaction asserted by GSFIC. “Like any other contract, accord and satisfaction requires a meeting of the minds as to the subject matter embraced therein, if it is to be valid and binding. [Cits.] Where there is no agreement to settle all matters in dispute, no accord and satisfaction resúlt. [Cits.] Moreover, parol evidence is admissible to show the scope of the agreement that forms the basis of the alleged accord and satisfaction. [Cit.]” Wallace v. Harrison, 166 Ga. App. 461, 464 (2) (304 SE2d 487) (1983). This court has also held “[a]n accord and satisfaction may be made between contracting parties pro tanto. If the contract is of such a nature as to give rise to separate and distinct demands or to create a number of separate obligations and cross-obligations, and a number of distinct breaches as to these separate obligations occurs, the parties may make an accord and satisfaction, or what in law amounts to an accord and satisfaction, as to one or more of these demands, without affecting the others.” (Punctuation and citations omitted.) State Farm Fire &c. Co. v. Fordham, supra at 52.

In Wood Bros. Constr. Co. v. Simons-Eastern Co., supra, relied on by the trial court, GSFIC and the contractor entered into a construction contract to build a wood energy system plant at Central State Hospital. Various change orders and delays caused the construction to be delayed approximately six months past the scheduled date. After extensive correspondence between the contractor and GSFIC failed to resolve the contractor’s claims for delay damages, the contractor notified GSFIC of its intent to file a claim for damages. The contractor submitted a statutory affidavit for final payment as required under the construction contract; however, it was qualified by a reservation of the contractor’s right to file a claim for delay damages and recover payment for completion of grassing. GSFIC responded by notifying the contractor that final payment would not be made until the contractor furnished an unqualified statutory affidavit. A few months later, the contractor submitted a request for final payment in the amount of $73,308.49, and GSFIC issued a check for the specified amount even though the contractor had not submitted an unqualified affidavit. The check, which provided that it represented “final payment except for the sum of $2,000.00 withheld for completion of grassing,” was delivered to the contractor by its surety. A letter accompanying the check indicated the check was tendered in satisfaction of all debts existing under the contract. While the contractor’s president was in a meeting and unable to look at the check, his bookkeeper endorsed and deposited the check in the contractor’s account. Two months later, GSFIC denied the contractor’s subsequent claim for delay damages, asserting that final payment had already been made.

In Wood Bros. we held that the evidence was clear that a bona fide dispute existed between GSFIC and the contractor as to the amount the contractor was due altogether. Because GSFIC tendered a check to the contractor as full satisfaction of all claims asserted by the contractor, the contractor’s “acceptance and deposit of the check made upon condition carried with it the acceptance of the condition, and thus worked an accord and satisfaction. [Cit.]” Id. at 876. We also held the circumstances of the contractor’s endorsement and acceptance of the check did not create an issue of fact as to whether there was an understanding between the parties that acceptance of the check represented full payment of the debt.

In the case sub judice, we are also presented with a situation where a contractor and its subcontractors filed claims with GSFIC for damages due to delays incurred on a project. As in Wood Bros., GSFIC tendered a check to the contractor representing “Final payment except for the sum of $. . . withheld for incomplete work” which ultimately was accepted by the contractor. However, unlike Wood Bros., Periodical Estimate No. 29 did not seek final payment, so when Dawson received the March 9 check marked “final payment,” the contractor immediately sought clarification from GSFIC as to the meaning of the conditional language. Dawson deposited the check only after Mr. Roberts stated that the March 9 check represented final payment under the Contract of the amount of $863,599.06 with $200,000 being withheld for incomplete work and that GSFIC still considered Hays’ and Davis’ claims pending.

Furthermore, unlike the circumstánces present in Wood Bros., in this case, GSFIC sent Dawson a second check representing “final payment except for the sum of $100,000 withheld for incomplete work,” after Dawson requested GSFIC to pay one-half of the remaining retainage. The check, voucher and accompanying memorandum failed to mention, in any way, that the check was intended to satisfy Hays’ and Davis’ claims. We therefore conclude that under these circumstances, a question of fact exists as to Dawson’s understanding of the subject matter embraced by the alleged accord and satisfaction.

We also note that in October 1988, when Dawson sought payment of the balance of the retainage requested in Periodical Estimate No. 29, GSFIC apparently did not itself embrace its present position that the March 9 and August 18 checks had already satisfied in full all Contract claims because on November 18, 1988, Roberts expressed a desire to make yet a third “final payment” under the Contract. In fact, GSFIC tendered a third check marked “final payment” eight months later, which check contemplated yet a fourth “final payment” in the amount of $7,500, when work on the Project was completed. Robert’s November 1988 letter also stated that GSFIC had considered and rejected the claims by Dawson’s mechanical and drywall subcontractors, another indication that GSFIC did not, at that time, embrace its present position that the subcontractor claims had already been satisfied by the August 18 payment to Dawson.

Decided March 10, 1992

Reconsideration denied April 1, 1992

Shapiro, Fussell, Wedge & Smotherman, Ronald J. Garber, David L. Tank, for appellants.

Michael J. Bowers, Attorney General, Lawson & Davis, G. Thomas Davis, for appellee.

As a general rule, whether there is an accord and satisfaction is a question for the jury. Pierce v. Taylor, 190 Ga. App. 819, 820 (2) (380 SE2d 351) (1989). Moreover, because GSFIC moved for summary judgment based on the affirmative defense of accord and satisfaction, GSFIC as a defendant undertook “to discharge a treble burden: not only that ordinarily imposed upon the proponent of an affirmative defense, but a second burden that requires the movant for summary judgment to establish that there exist no material issues of fact in the case, and yet a third that requires the movant who is also the defendant affirmatively to negate one or more essential elements of the case made out by [the plaintiff]. [Cits.]” Wallace v. Harrison, 166 Ga. App. 461 at 464-465 (2). The fact that so many different checks were issued purporting to be the “final payment” in the Contract creates an issue of fact concerning what the parties intended by issuing and negotiating these checks. In our view, GSFIC failed to meet its burden of presenting clear evidence from which, as a matter of law, it could be determined that GSFIC’s tender and Dawson’s acceptance of the March 9 and August 18 checks were made pursuant to a mutual understanding that all of Dawson’s claims under the Contract were being satisfied.

3. We also conclude that a material question of fact exists in regard to Dawson’s argument (6), as to whether GSFIC’s conduct subsequent to its tender of the March 9 check, including the tender of two additional checks marked “final payment’ and GSFIC’s consideration of subcontractor claims which supposedly had already been satisfied, waived the effect of the purported accord and satisfaction. “[A]ccord and satisfaction may be rescinded by agreement, or waived by acts or conduct of a party thereto, whereby the debt would be restored to its original status. [Cit.]” Motorola Communications &c., Inc. v. South Ga. &c. Gas Co., supra at 381. Consequently, the trial court’s grant of summary judgment to GSFIC was error.

Judgment reversed.

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


author: Andrews, Judge.

text:
    A91A1912.
    A92A0525.
    MAGLIARO et al. v. LEWIS et al. MAGLIARO et al. v. PEDRICK.
    (417 SE2d 395)
   Andrews, Judge.

Shortly after purchasing and occupying their house, Charles and Lori Magliaro allege they discovered that the roof leaked and was in such poor condition it had to be replaced. They brought the present action to recover the replacement cost of the roof, certain related expenses, plus punitive damages, attorney fees and expenses of litigation. In a ten-count complaint, appellants sued Glenn A. Lewis & Associates, Inc. (Lewis & Assoc.), the seller’s realtor; Glenn A. Lewis, the president of Lewis & Assoc.; M’ada Pedrick, a real estate agent who worked out of the Lewis & Assoc, office, and who showed the house to appellants; Charles Wells, d/b/a Wells Roofing Company (Wells), who issued an inspection report on the roof, and William D. Flanders, the seller of the house. In Case No. A91A1912, appellants appeal from: (1) the trial court’s order granting partial summary judgment to defendants Lewis and Lewis & Assoc, on counts 4, 5, 6, 7, and 8 of the complaint; and, (2) the trial court’s order denying their motion to extend the discovery period. In Case No. A92A0525, appellants appeal from the trial court’s order granting partial summary judgment to Pedrick on counts 4, 5, 6, 7, and 8 of the complaint. Except for the discovery matter, the issues and errors claimed are the same in both cases and will be addressed together.

1. Appellants claim the trial court erred by granting summary judgment to Lewis, Lewis & Assoc, and Pedrick on count 4 of the complaint. In this count, appellants allege that Pedrick fraudulently concealed from them that she and Lewis & Assoc, represented the seller of the house, and that Pedrick withheld information she had about a roof inspection she agreed to arrange for the appellants prior to the closing. Viewed in favor of the non-moving parties, the record reflects that Pedrick showed appellants the house and prepared the sales contract executed by the parties for the sale of the house. Appellants claim that Pedrick, by her actions, induced them to believe that she represented them in the purchase, although appellants concede Pedrick never explicitly claimed to be their agent, and their understanding was that the seller would pay her commission. Nevertheless, the sales contract prepared by Pedrick clearly disclosed that Pedrick and Lewis & Assoc, acted as agents for the seller and not for appellants in the transaction. The sales contract also contained a disclaimer clause whereby appellants as the buyers acknowledged that they have not relied upon the advice or representations of the realtor or its agents relative to the structural condition of the property, and recognizing that they should seek independent advice about any such concerns.

After first seeing the house, appellants had serious concerns about the condition of the roof which appeared to them to be in a deteriorated condition. Under the sales contract, the appellants were responsible for having the property inspected at their expense to determine the existence of any defective condition. Based on their concerns, appellants decided after signing the sales contract that they should obtain a separate inspection of the roof and informed Pedrick of that intention. Since appellants lived out of town, Pedrick offered to arrange for a qualified roofer to inspect the roof and give a written report on its condition. Appellants informed Pedrick that they wanted a complete roof inspection determining the cost, if any, for any needed repair or replacement of the roof. The sales contract called for the sale to be closed in about six months, when the appellants planned to move. Thereafter, appellants contacted Pedrick on numerous occasions over the ensuing months expressing concern that a roof report had not been obtained. Pedrick finally arranged for an inspection by a local roofer, who reported to Pedrick that the roof looked like it had “a lot” of damage and needed “a lot” of work, and that because of his previous experience with the type of roof at issue (wood shingles) he was not willing to write up a report on its condition. Appellants admit they received a phone call from Pedrick about this roof inspection from which they concluded that there was a problem with the condition of the roof, and that Pedrick had been unable to obtain a written report on the inspection. The deposition of Charles Magliaro shows that he received “a verbal indication through the realtor that he indicated the damage was significant and that the roof needed to be replaced.” Appellants instructed Pedrick to get a written report on the roof with a dollar value as to any repair or replacement cost so that this information would be available prior to the closing. A couple of days later, and only a day or two prior to the' closing, Pedrick called appellants and informed them that she had contacted another roofer, Wells, who had inspected the roof and issued a written report that the roof was in good condition and did not need to be replaced. In light of the initial bad report and their own concerns based on the appearance of the roof, appellants expressed surprise at the good report by the second roofer. The written report from Wells was produced by Pedrick at the closing, and appellants relied on it to close on the house without any deduction from the sales price or other consideration given for the condition of the roof.

We agree with the trial judge that, based on the record before us, there is no evidence of concealment of material facts proximately causing the damages sought by appellants. Pretermitting appellants’ claims of dual agency, there is no evidence to support the allegation that Pedrick concealed facts from appellants about the condition of the roof, or otherwise caused the alleged damages by failing to communicate information. Rhodes v. Perimeter Properties, 187 Ga. App. 55 (369 SE2d 332) (1988). Moreover, the alleged fraudulent concealment of information about the roof occurred after the appellants read the sales contract and expressed surprise at the disclosure that Pedrick and Lewis & Assoc, were agents for the seller, so there is no claim that they relied upon any alleged confidential relationship by not reading the provisions of the sales contract. Van Den Berg v. Northside Realty Assoc., 172 Ga. App. 591-592 (323 SE2d 839) (1984). The trial court did not err in granting partial summary judgment as to count 4.

2. There was no error in the trial court’s grant of partial summary judgment as to count 5' of the complaint. In this count, appellants allege that Pedrick and Lewis & Assoc, deviated from various regulations governing real estate brokers and that appellants have a separate cause of action for the claimed damages based on such deviations. Although some violations of these regulations may serve as the basis for a cause of action under other principles of law, breach of the regulatory provisions alone will not support a separate cause of action. Campagna v. Sara Hudson Realty Co., 137 Ga. App. 451 (224 SE2d 102) (1976); Johnson Realty v. Hand, 189 Ga. App. 706, 708-710 (377 SE2d 176) (1988).

3. In count 6 of their complaint, appellants pursue a cause of action for the claimed damages against Pedrick and Lewis & Assoc, for alleged violation of provisions of the Uniform Deceptive Trade Practices Act (OCGA § 10-1-370 et seq.). Although the Uniform Deceptive Trade Practices Act does not preclude a right of recovery under the common law or other statutes, neither does it provide a vehicle, in and of itself, for the recovery of the money damages sought by appellants. Recovery under this Act is limited under OCGA § 10-1-373 to injunctive relief. Lauria v. Ford Motor Co., 169 Ga. App. 203, 206 (312 SE2d 190) (1983). Accordingly, the trial court did not err by granting partial summary judgment as to count 6.

4. In counts 7 and 8 of the complaint, appellants assert causes of action to collect the claimed damages on the basis that Pedrick and Lewis & Assoc, violated the Fair Business Practices Act (FBPA) (OCGA § 10-1-390 et seq.) and the Federal Trade Commission Act (15 USC § 45), the federal counterpart to the Georgia Act. There is ho support in the record for a cause of action under either of these Acts, and the trial court properly granted partial summary judgment as to counts 7 and 8. The gravamen of the appellants’ claim is that actions by Pedrick and Lewis & Assoc, prevented them from discovering the damaged condition of the roof prior to closing. Aside from the lack of evidence to support any cause of action based on misrepresentation or failure to disclose information, as discussed in Division 1, we find no sufficient demonstration of a public policy interest necessary to invoke the provisions of the FBPA. Even assuming the truth of the allegations, we would deal here with misrepresentations made to appellants alone relating to the condition of a roof in a single residential real estate transaction, which is not the type of consumer transaction covered by the FBPA. Zeeman v. Black, 156 Ga. App. 82, 86, (273 SE2d 910) (1980).

5. Appellants claim the trial court erred by denying their motion to extend the period of discovery under Uniform Superior Court Rule 5. We have jurisdiction of this claim pursuant to OCGA § 5-6-34 (d). Under Rule 5, the trial court is granted wide discretion in a civil case to extend, reopen, or shorten the time for discovery. Stewart v. Stewart, 260 Ga. 812, 813 (400 SE2d 622) (1991). Here appellants sought an indefinite extension of the discovery period for the purpose of additional discovery to determine whether Pedrick and Lewis & Assoc, may have engaged in a pattern of improper actions with respect to other purchasers of houses. To do this, appellants proposed to identify and question every person who has purchased a home in a transaction involving Pedrick or Lewis & Assoc, from February 1985 to the present. Appellants claimed in their motion that this information is relevant to the issue of whether the appellees engaged in any such improper practices with appellants prior to the drafting of the sales contract. The trial court found that the discovery sought was not reasonably calculated to lead to admissible evidence relevant to the issues in the case, and denied the motion. Based on the present record and the damages sought to be recovered under the complaint, we find no abuse of the trial court’s discretion.

Judgments affirmed.

Sognier, C. J., and McMurray, P. J., concur.

Decided March 16, 1992

Reconsideration denied April 1, 1992

Robert G. Wainwright, for appellants.

Dickey, Whelchel, Brown & Readdick, Richard A. Brown, Jr., Pipkin & Williams, James G. Williams, Quinton S. King, Eugene Highsmith, John R. Ferrelle, for appellees.

Edward C. Stone, amicus curiae.

       Although the record reflects that appellants had various recollections of the report given to them by Pedrick on the first inspection (and that Pedrick had no recollection of it) the trial court was authorized to construe the vague or equivocal testimony given by appellants on this point against them. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986); Thacker v. Matthews Tuxedo, 183 Ga. App. 474, 475 (359 SE2d 231) (1987).

       Based on these facts, the trial court concluded that questions of fact remained for jury determination under count 3 of appellants’ complaint as to whether Pedrick negligently failed to exercise a reasonable degree of care in obtaining the roof inspection she agreed to arrange for the appellants.


text:
    A91A1913.
    BOWERS et al. v. HOWELL.
    (417 SE2d 392)
   Beasley, Judge.

Plaintiff, Alton Howell, brought this suit for $10,825 to foreclose a materialman’s lien on Ted and Sharon Bowers’ property, arising from his performance of a contract under which he made renovations and additions to their home. Following the return of a jury verdict in plaintiff’s favor for $8,400 defendants appeal the trial court’s denial of their motions for directed verdict, jnov, and new trial. They contend that the parties’ contract is void and unenforceable in its entirety, in that plaintiff, who did electrical and plumbing work, had neither a plumbing nor an electrical contracting license.

Plaintiff testified that he has been a carpenter for 14 years, cannot read or write, and did not realize until doing this job that he needed a license to do electrical and plumbing work. The parties’ contract was written by plaintiff’s wife. It itemizes the work to be performed but not the price, which is stated as a sum of $11,975. The contract required plaintiff to build a 20 by 30 bedroom; to construct flooring, roofing, and a closet; to install insulation, sheeting decking, interior and exterior doors, exterior siding; and windows, as well as a cabinet, tub, commode, and vanity; to do interior and exterior painting; and to remove walls and wallpaper. In regard to electrical work, the contract called for plaintiff to install a 200 amp switch box with breakers and to wire new rooms for outlets and lights.

The only major complaint concerning the wiring was that the dryer overheated and almost caught fire, but plaintiff attributed this to the appliance and not the wiring. The only plumbing work done by plaintiff was to connect the commode and lavatories to the water supply. The remaining plumbing was done by a subcontractor.

Although defendants made an initial payment to plaintiff in the amount of $1,150, they refused to pay the remainder on grounds he had failed to substantially complete the work and there were numerous defects.

1. “[W]here a statute provides that persons proposing to engage in a certain business shall procure a license before being authorized to do so, and where it appears from the terms of the statute that it was enacted not merely as a revenue measure but was intended as a regulation of such business in the interest of the public, contracts made in violation of such statute are void and unenforceable.’ [Cits.]” Bernstein v. Peters, 68 Ga. App. 218, 221 (1) (22 SE2d 614) (1942); accord Robinson v. Colonial Discount Co., 106 Ga. App. 274, 277 (3) (126 SE2d 824) (1962). “Accordingly, at whatever stage of the proceedings it appears that the plaintiff is seeking to recover upon a contract permitted to be entered into only by persons holding licenses issued as a regulatory measure, it becomes imperative for the plaintiff to prove that he holds such a license and held such license at the time the contract was entered into in order to authorize a recovery.” Management Search v. Kinard, 231 Ga. 26, 29 (3) (199 SE2d 899) (1973).

“No person shall engage in the electrical contracting business as an electrical contractor unless such person has a valid license. . . .” OCGA § 43-14-8 (a). “No person shall engage in the business of plumbing as a master plumber unless such person has a valid license. . . .” OCGA § 43-14-8 (b) (1). These licensing requirements are intended for the protection of the public against faulty, inadequate, inefficient, or unsafe electrical or plumbing work. OCGA § 43-14-1.

Plaintiff argues that his failure to procure a license raises the affirmative defense of illegality, which has been waived by defendants since it was not pled as required by OCGA § 9-11-8 (c) and was not made an issue in the pretrial order pursuant to OCGA § 9-11-16 (b). Defendants respond that plaintiff cannot argue that they waived this defense, since evidence that plaintiff did not possess the required license was admitted without objection at trial. “[T]he purpose of the pleading rules set out in CPA § 8, supra, is ‘to prevent surprise and to give the opposing party fair notice of what he must meet as a defense.’ [Cit.] . . . ‘ “[F]ailure to plead an affirmative defense is immaterial if evidence of the defense is introduced and not objected to for failure to plead it, and no surprise is claimed.” ’ ” Hall v. First Nat. Bank of Atlanta, 145 Ga. App. 267, 269-270 (3) (243 SE2d 569) (1978).

Under OCGA § 9-11-15 (b), “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Implied consent usually is found where one party raises an issue material to the other party’s case, or where evidence is introduced without objection. Carreras v. Austell Box Bd. Corp., 154 Ga. App. 135, 137 (2) (267 SE2d 792) (1980).

“The fact that [defendants] did not raise the issue in the pretrial order is not controlling where evidence is introduced on the issue without objection; the opposing party is not surprised; and the issue is litigated. [Cit.] Rule 16 must always be considered in light of the mandatory provisions of Rule 15 (b), [cit.], and the test of implied amendment of pleadings should always be whether the opposing party had a fair opportunity to defend, offer evidence or was misled. [Cit.]” (Emphasis in original.) Id. at 138.

Decided March 13, 1992

Reconsideration denied April 1, 1992.

Thomas M. Strickland, for appellants.

Heard, Leuerett & Phelps, Richard D. Campbell, for appellee.

The defense of illegality was not waived.

2. Plaintiff maintains that defendants’ failure to assert the defense of illegality before trial misled him and prejudiced his case, in that pretrial notice would have allowed him to more effectively pre-' sent evidence that the parties’ contract was severable. “A contract may be either entire or severable. In an entire contract, the whole contract stands or falls together. In a severable contract, the failure of a distinct part does not void the remainder.” OCGA § 13-1-8 (a). “The character of the contract in such case is determined by the intention of the parties.” OCGA § 13-1-8 (b); Hunnicutt & Bellingrath Co. v. Van Hoose, 111 Ga. 518 (36 SE 669) (1900); see also OCGA § 13-8-1. “ ‘[W]here an agreement consists of a single promise, based on a single consideration, if either is illegal, the whole contract is void. But where the agreement is founded on a legal consideration containing a promise to do several things or to refrain from doing several things, and some only of the promises are illegal, the promises which are not illegal will be held to be valid.’ [Cits, omitted.]” Kem Mfg. Corp. v. Sant, 182 Ga. App. 135, 140 (4) (355 SE2d 437) (1987). Contracts void as against public policy or merely legally unenforceable “may be severable so that the entire contract not be void but merely unenforceable as to ‘that which is illegal.’ [Cits.]” Johnson v. Frazier, 121 Ga. App. 212, 213 (3) (173 SE2d 434) (1970).

Issues concerning the severability of the parties’ contract were jury questions. The contract called for the plaintiff to do extensive construction in addition to electrical and plumbing work. In awarding the plaintiff some but not all of the monies payable under the contract, the jury could have found that plaintiff was entitled to be compensated for the enforceable provisions of the contract only. Viewing the evidence in a light most favorable to the verdict requires an affirmance of the judgment.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A91A1947.
    NUNNALLY v. THE STATE.
    (417 SE2d 170)
   Cooper, Judge.

In a multi-count indictment, appellant was charged with four violations of the Georgia Controlled Substances Act, OCGA § 16-13-30 (b). Prior to trial, the State served notice pursuant to OCGA § 17-10-2 (a) of its intent to seek a mandatory life sentence under OCGA § 16-13-30 (d) in the event that appellant was convicted on a second count of the indictment. Appellant was convicted by a jury on three of the four counts in the indictment and sentenced by the court to ten years on the first count and life imprisonment on the second and third counts. Appellant’s sole enumeration of error on appeal is that the trial court erred in sentencing him to a term of life imprisonment pursuant to OCGA § 16-13-30 (d).

OCGA § 16-13-30 (d) provides that “any person who [sells any controlled substance] . . . shall be guilty of a felony. . . . Upon conviction of a second or subsequent offense, he shall be imprisoned for life.” Appellant argues that his sentence is void because the prior conviction did not antedate the convictions for which appellant received the life sentences. The State argues that a literal reading of OCGA § 16-13-30 (d) does not indicate that the legislature intended the conviction for the second or subsequent offense to occur after the first conviction. The issue in this case was decided adversely to the State in State v. Sears, 202 Ga. App. 352, 355 (414 SE2d 494) (1991).

In Sears, the defendant was found guilty of two counts of selling controlled substances in violation of OCGA § 16-13-30 (b). The trial court did not impose a life sentence on the second count and the State appealed, contending that a life sentence was mandated by the statute upon the defendant’s second conviction. We held that “in order for the imposition of life sentences to be mandatory pursuant to OCGA § 16-13-30 (d), [defendant’s] prior conviction need not have preceded his instant violations of OCGA § 16-13-30 (b), but his prior conviction must necessarily have preceded [the defendant’s] instant trial for violating OCGA § 16-13-30 (b).” Id. We noted in Sears that neither of the defendant’s convictions could be the basis for a life sentence as to the other conviction, since at the time the State was required to give its pre-trial notice, neither of the' two convictions was final. Accordingly, we hold that since appellant’s conviction on the first count of the instant indictment was not final at the time the State gave its pre-trial notice pursuant to OCGA § 17-10-2 (a), the conviction on the first count could not be the basis for the imposition of a life sentence on either of the remaining counts of the indictment.

Judgment reversed.

Birdsong, P. J., and Pope, J., concur.

Decided February 28, 1992

Reconsideration denied April 1, 1992

Charles C. Mayers, for appellant.

Michael C. Eubanks, District Attorney, J. Wade Padgett, Richard E. Thomas, Assistant District Attorneys, for appellee.


text:
    A91A1955.
    McDEVITT & STREET COMPANY v. K-C AIR CONDITIONING SERVICE, INC. et al.
    (418 SE2d 87)
   Beasley, Judge.

Plaintiff McDevitt & Street Company sued defendants K-C Air Conditioning Service, Inc., and its surety, Employers Insurance of Wausau, to recover damages allegedly sustained as the result of the breach of a construction subcontract. Plaintiff appeals a judgment entered on a jury verdict in favor of defendants.

On February 26, 1985, plaintiff as general contractor and K-C as subcontractor entered into a written agreement (the subcontract) for the design, purchase and installation of a waste water riser system in an Embassy Suites Hotel. The agreement provided that “[t] he work shall be performed by subcontractor in a good and workmanlike manner strictly in accordance with the Contract Documents. . . .” It further contained a guarantee whereby “Subcontractor warrants and guarantees the Work to the full extent provided for in the Contract Documents. Without limiting the foregoing or any other liability or obligation with respect to the Work, Subcontractor shall, at its expense and by reason of its express warranty, make good any faulty, defective, or improper parts of the Work discovered within one year from the date of acceptance of the project by the Architect and Owner or within such longer period as may be provided in the Contract Documents.”

Specified as a “Contract Document” and specifically incorporated into the agreement, was an American Institute of Architects (AIA) contract A201, 1976 Edition as amended by Supplementary Conditions. In an article of that AIA contract pertaining to subcontractors, it was specified that “the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by the terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities which the Contractor by these documents assumes toward the Owner and the Architect.” Pursuant to that AIA agreement, the Contractor warranted to the Owner that “[a] 11 Work will be of good quality, free from faults and defects and in conformance with the Contract Documents. All Work not conforming to these requirements . . . may be considered defective. . . . This warranty is not limited by the provisions of Paragraph 13.2.” Paragraph 13.2.2 related to “correction of work” and required that if within “one year after acceptance by Owner ... or within such longer period of time as may be prescribed by law . . . any of the Work is found to be defective or not in accordance with contract documents, the contractor shall correct it promptly after receipt of written notice to do so” unless Owner has “given a written acceptance of such condition. This obligation shall survive termination of the contract.”

The subcontract further required K-C as subcontractor to furnish “a performance bond ... in an amount equal to the [contract] Price [$1,564,500.] . . . with surety or sureties satisfactory to Contractor.” In compliance with that requirement, K-C posted a “subcontractor performance bond” with defendant Wausau. The bond was to remain in full force and effect, obligating Wausau as surety, until such time as “[K-C] shall well and truly perform all the undertakings . . . and conditions and agreements of [the] subcontract within the time provided therein . . . and during the life of any guaranty required under [the] subcontract, . . . and shall indemnify and save harmless [plaintiff] of . . . any loss, damage, and expense, including costs and attorney’s fees, which [plaintiff] may sustain by reason of failure to do so. . . .”

Embassy Suites opened for business in December of 1985. In early February of 1988, plaintiff received complaints about ten random leaks that were occurring in the plumbing risers in the hotel. On four or five different occasions ceiling tiles fell and raw sewage leaked from the guest rooms into the restaurant and meeting rooms below. On each occasion, a guest suite was out of service for three days. Such leaks were occurring randomly throughout the system with more frequency, at a rate of approximately one a week.

By letter dated February 4, 1988, Plaintiff provided both Subcontractor and Wausau with “formal notice of a claim against the . . . subcontract,” due to “mechanical connections [which] have failed throughout the building,” resulting in “damage caused by [ ] sewage flowing from the failed joints,” and requested that Wausau assign an adjustor to investigate before “we start the repairs to the mechanical system.” Wausau acknowledged receipt of plaintiff’s February 4 letter, and although it responded that it would investigate the problem with its principal, plaintiff received no confirmation that such an investigation had been conducted.

Plaintiff arranged a meeting on February 5 to review the problem with all those involved. Representatives of K-C were present, but Wausau declined to be represented. A decision was made to randomly open certain wall cavities to assess the problem. Upon doing so, it became apparent that segments of pipe throughout the system had been improperly bonded. It was thought that the defect could potentially result in future leaks.

That information was presented at a second meeting which was held on February 8. It was agreed upon that a system-wide failure had occurred and a “decision was made to replace all the proset sleeves because no one was comfortable with the fact that [they] wouldn’t be back doing patch jobs again, again and again.”

Analysis of the couplings removed from the building revealed an adhesive failure due to contaminated cement that was used at the joints. This resulted in a system with a propensity to leak. Approximately 85-95 percent of the couplings examined were affected in that manner. K-C had installed at least 2,200 couplings of a similar nature in the hotel.

Although plaintiff offered K-C the opportunity to correct the problem, it declined. Plaintiff paid another subcontractor $151,986.97 to perform the repair.

Plaintiff informed Wausau that it would negotiate a settlement of the claim with Embassy Suites. It later sent K-C an itemized invoice reflecting payments totaling $338,594.57 it had expended for repairs and losses to the owner. Plaintiff sought reimbursement for those expenses from both K-C and Wausau under the performance bond. Both denied liability.

Plaintiff filed the present multi-count complaint seeking actual damages against K-C for negligence, breach of contract, breach of express and implied warranties, and expenses of litigation resulting from its alleged bad faith refusal to pay the claim. The complaint further alleged joint and several liability on the part of Wausau for K-C’s failure to perform. It sought actual damages, a 25 percent bad faith penalty and attorney fees from the surety.

1. Although plaintiff contends that it was entitled to a directed verdict in its favor as a matter of law, no such motion was presented below. It cannot now be made the basis for appellate review. See generally Fidelity &c. Ins. Co. v. Massey, 162 Ga. App. 249 (1) (291 SE2d 97) (1982). Appellant cites Denny v. D. J. D., Inc., 188 Ga. App. 431 (373 SE2d 383) (1988), as authority for its position, but in that case the plaintiff had raised the issue before the trial court in a motion for new trial, and it was the denial of that motion which was reviewable. There was no such motion in this case.

2. Plaintiff contends that the trial court erred in granting defendants’ pre-trial motion in limine, and excluding from the trial of the case any evidence of a default provision of the subcontract.

The operative provision specified: “Should Subcontractor at any time: fail to supply the labor, materials, equipment, supervision and other things required ... of sufficient quality to perform the Work with the skill [and] conformity . . . required hereunder ... or fail in the performance or observance of any of the covenants, conditions, or other terms of this subcontract, . . . each of which shall constitute a default hereunder by Subcontractor, Contractor shall, after giving Subcontractor notice of default and 48 hours within which to cure, have right to exercise any one or more of [four specified] remedies.” These included correcting the work through others and recovering from subcontractor all losses, damages and reasonable attorney fees incurred by reason of the default.

The trial court’s ruling was apparently predicated on a finding that the default provision applied only during performance and within the one-year warranty period. However, as K-C concedes, the express warranty provision of the subcontract was not an exclusive remedy. Correction of the work was required within the first year “or such longer period of time as may be prescribed by law.” K-C was contractually obligated to provide the labor, material and equipment necessary to perform good quality work, free from faults and defects, and an event of default was deemed to have occurred should the subcontractor “at any time” fail to do so.

Evidence showed that the defect resulted from improper bonding of the pipe joints (couplings) due to an adhesive failure. There was at least some evidence to support a finding that the defect was attributable to K-C’s failure to provide good quality materials and/or workmanship. Under an indemnification provision of the subcontract, K-C was required to “indemnify and save harmless Contractor . . . from and against any liability, loss, damage, or expense arising out of’ any claim asserted by owner against plaintiff “involving the sufficiency of the performance of the Work.” Refusal on the part of K-C and Wausau as its surety to indemnify plaintiff for the claim asserted by Embassy Suites is evidence of failure to perform under the indemnification provision. Even if the default provision had no applicability after the expiration of the one-year warranty period, there was evidence that leaks in the system were manifested “from the beginning of the time Embassy Suites was there.”

K-C nevertheless asserts that the default provision is inapplicable because plaintiff failed to provide the contractual requirement of notice and 48 hours within which to cure. Plaintiff’s February 4 letter was sufficient to demonstrate notice and opportunity to correct the defect.

As there was evidence from which the jury could conclude that defendants were in default of the subcontract, the trial court abused its discretion in excluding that provision from their consideration. Compare Department of Transp. v. Wright, 169 Ga. App. 332 (1) (312 SE2d 824) (1983).

3. Plaintiff contends that the trial court erred in directing a verdiet on damages which it paid to Embassy Suites in settlement of the hotel’s claim.

Embassy Suites sent plaintiff an itemized statement setting forth damages of $135,768.50 it had incurred as the result of the construction defect and subsequent repair. This statement was received into evidence through the testimony of plaintiff’s risk manager who had personally investigated the charges and reimbursed the hotel. He testified that the charges were considerably less than he had estimated, since the hotel had not billed for loss of occupancy for each night that rooms were out of service but based its calculations on past occupancy rates. He stated that the charges appeared reasonable based on his independent calculations and estimate.

OCGA § 13-6-8 allows for recovery, in contract cases, of “profits which are the immediate fruit of the contract, and are independent of any collateral enterprise entered into in contemplation of the contract.” Where a defendant’s breach of contract causes a hotel to lose business, compensation for lost income is recoverable. Stewart v. Lanier House Co., 75 Ga. 582 (1) (1885) (interpreting predecessor to OCGA § 13-6-8). The hotel operator need only “show generally [the] facts . . . which will enable the jury to approximate his losses and ascertain his damages”; for to compel him to do more than this would “deprive him of an effective remedy to secure his rights.” Id. at 601 (5). “Lost profits, i.e., lost rental income, is recoverable as damages if shown with reasonable certainty.” Getz Svcs. v. Perloe, 173 Ga. App. 532, 536 (327 SE2d 761) (1985).

“A motion for directed verdict is to be granted only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions, demands a particular verdict. OCGA § 9-11-50 (a).” Doyle v. Estes Heating &c., Inc., 173 Ga. App. 491, 493 (3) (326 SE2d 846) (1985). The evidence is construed most favorably to the nonmovant. Davis v. Glaze, 182 Ga. App. 18 (354 SE2d 845) (1987).

Plaintiff established sufficient proof of the business interruption claim to withstand the direction of a verdict.

The parties also argue about the direction of a verdict on certain markups and attorney fees as damages, but these are not embraced in this enumeration of error and are dealt with in Divisions 4 and 5, infra, which address the separate enumerations of error.

4. Plaintiff contends that it was entitled to have the jury consider an additional 15 percent markup (10 percent overhead and 5 percent profit) on the actual damages as a remedy provided under the default provision of the subcontract. However, the evidence did not establish plaintiff’s entitlement to exercise that remedy, which was applicable when monies were due the subcontractor or in the event of termination of the subcontract by the contractor. Although plaintiff further asserts entitlement to such additional damages for the general contractor or supervisor as “industry custom,” the evidence did not establish that plaintiff acted in such capacity with respect to the repair work. The trial court properly directed a verdict in favor of K-C with respect to this claim for additional damages.

5. The trial court erred in directing a verdict with respect to plaintiff’s claim for expenses of litigation under OCGA § 13-6-11. Mere refusal to pay a disputed claim without suit is not sufficient to support an award of expenses of litigation, nor are they authorized where a bona fide controversy exists. However, “[questions of bad faith, stubborn litigiousness, and unnecessary expense, under OCGA § 13-6-11, are generally questions for the factfinder. [Cit.] ” Manderson & Assoc. v. Gore, 193 Ga. App. 723, 735 (9) (389 SE2d 251) (1989). It was for the jury to determine whether there was a bona fide controversy in this case.

6. Plaintiff enumerates as error the grant of Wausau’s motion for a directed verdict as to its liability under the performance bond.

The performance bond obligated Wausau as surety until K-C has performed all the undertakings, conditions and agreements of the subcontract “within the time provided therein . . . and during the life of any guaranty required under the subcontract.” The court construed the document to unconditionally relieve Wausau from liability under the bond at the conclusion of the one-year warranty period. However, K-C was obligated under the subcontract to make good any defective work discovered within one year from the date of acceptance “or within such longer period as may be provided within the contract documents.” The relevant portion of the AIA contract, recited earlier, expressly states that the one-year provision does not limit the warranty, and extends it to the “period of time as may be prescribed by law.” The statute of limitation is six years. OCGA § 9-3-24. This construction is consistent with the indemnification provision of the subcontract requiring K-Q to indemnify plaintiff in the event of its default, without limitation as to time or scope.

“Sureties . . . are jointly and severally liable with their principal unless the contract provides otherwise.” OCGA § 10-7-1. Since Wausau’s obligation under the bond remained in full force and effect until K-C’s obligations under the subcontract were terminated, and there was evidence that K-C did not “well and truly perform” within the statute of limitation, the trial court erred in directing a verdict in Wausau’s favor.

7. Plaintiff also submits that the trial court erred in directing a verdict in Wausau’s favor for a statutory bad faith penalty and attorney fees pursuant to OCGA § 10-7-30.

“In the event of the refusal of a corporate surety to . . . commence performance in accordance with the terms of a contract of suretyship within 60 days after receipt from the obligee of notice of default or demand for payment, and upon a finding that such refusal was in bad faith, the surety shall be liable to pay such obligee, in addition to the loss, not more than 25 percent of the liability of the surety for the loss and all reasonable attorney’s fees for the prosecution of the case against the surety.” OCGA § 10-7-30 (b). That statute is virtually identical to OCGA § 33-4-6, which deals with the liability of insurance companies on their insurance contracts. Columbus Fire &c. Co. v. Am. Druggist Ins. Co., 166 Ga. App. 509, 510 (304 SE2d 471) (1983). The question of bad faith under the insurance statute is for the jury unless it can be said as a matter of law there was a reasonable defense which vindicates the insurer’s good faith. St. Paul Fire &c. Ins. Co. v. Snitzer, 183 Ga. App. 395 (2) (358 SE2d 925) (1987).

The statutory 60-day waiting period was satisfied. Compare Columbus Fire, supra. Evidence of Wausau’s refusal to participate in ascertaining the cause of the problem and its failure to investigate the claim was sufficient to raise a jury question as to its liability for statutory damages and attorney fees. See generally Central Manufacturers Mut. Ins. Co. v. Graham, 24 Ga. App. 199 (99 SE 434) (1919); Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703 (1) (302 SE2d 605) (1983). It was error to direct a verdict on the claim for damages pursuant to OCGA § 10-7-30.

8. Plaintiff contends that the trial court erred in excluding certain hearsay statements, made by two alleged agents of K-C. The proponent of hearsay evidence of an agent’s admissions must show that the individual was an agent acting within the scope of his authority at the time the statements were made. Seaboard Coastline R. Co. v. Carter, 226 Ga. 825 (2) (177 SE2d 683) (1970). Although agency may be shown by the sworn testimony of the alleged agent, Terminal Trans. Co. v. Decatur Truck &c. Co., 90 Ga. App. 859 (84 SE2d 494) (1954), it may not be shown by his out-of-court statements alone. Colt Co. v. Wheeler, 31 Ga. App. 427 (5) (120 SE 792) (1923); Mullis v. Merit Fin. Co. of Savannah, 116 Ga. App. 582 (158 SE2d 415) (1967). Some of the statements at issue here were allegedly made by K-C’s former project manager both orally and in the minutes of the two February meetings, to the effect that K-C used defective materials. Plaintiff has not directed the court’s attention to any sworn evidence that the declarant was K-C’s agent at the time the statements were made or that he was acting within the scope of his authority. His hearsay statements were properly excluded. Amicalola Marble &c. Co. v. Coker, 111 Ga. 872 (2) (36 SE 950) (1900). Likewise, there was no showing of agency or apparent agency so as to render admissible as an admission against interest certain statements attributable to K-C’s insurance agent. The only evidence was that he was an independent contractor.

Since the minutes contained hearsay opinions and conclusions concerning the cause of the leaks, they were not admissible under the business record exception. Luke v. Spicer, 194 Ga. App. 183 (2) (390 SE2d 267) (1990).

Correspondence from plaintiff’s former attorney, written within the context of good faith negotiations, was properly excluded. OCGA § 24-3-37.

9. Plaintiff requested a jury instruction in the language of Norair Eng. Corp. v. St. Joseph’s Hosp., 147 Ga. App. 595, 602 (3) (249 SE2d 642) (1978), as follows: “[The provision of the subcontract requiring K-C to correct defects within one year of acceptance of the project] . . . is an added guarantee, inserted in the contract to extend rather than limit [K-C’s] liability for faulty construction. As such, it [is] not [plaintiff’s] exclusive remedy, and it in no way impairs [K-C’s] general obligation to perform his contract in a proper, workmanlike manner.”

The trial court refused to give the requested charge, stating that the legal principle contained therein would be covered in the general charge. It was not. The request contained a correct statement of law and was adjusted to the evidence. The objection was properly preserved. Failure to give the requested charge on a critical legal theory of recovery constituted substantial error and was harmful as a matter of law. OCGA § 5-5-24 (c); Fowler v. Gorrell, 148 Ga. App. 573, 577 (2) (251 SE2d 819) (1978).

10. It was likewise error to refuse to give plaintiff’s request to charge on the law of indemnification obligations.

K-C was required under the subcontract to indemnify plaintiff against any claim asserted by Embassy Suites involving sufficiency of the subcontractor’s work, and for the reasons stated in Division 4 supra, the issue of Wausau’s obligation to indemnify its principal should have been presented to the jury. Although the court instructed the jury concerning the legal liability of the indemnitor, that charge was confusing and could have misled a jury of ordinary capacity and understanding. See generally King Cotton, Ltd. v. Powers, 190 Ga. App. 845 (2) (380 SE2d 481) (1989). An instruction as requested by plaintiff was mandated. Fowler v. Gorrell, supra.

11. Any error in the court’s refusal to charge on the meaning of a “design-build” contract was rendered harmless by the admission of the subcontract and other included contract documents which fully described K-C’s obligations to design, purchase and install the waste water riser system. A further definition of the concept was provided by the testimony of a design build mechanical contractor.

Judgment reversed.

Carley, P. J., and Johnson, J., concur.

Decided March 18, 1992

Reconsideration denied April 1, 1992

Griffin, Cochrane & Marshall, Jennifer W. Fletcher, Peter H. Strott, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Lisa M. Smith, Smith & Fleming, George D. Wenick, Robert 0. Fleming, Jr., for appellees.


text:
    A91A1956, A91A1957.
    ROSE et al. v. KENNESAW HOUSE, INC. et al; and vice versa.
    (417 SE2d 379)
   Cooper, Judge.

Appellants Dorrie and Wayne Rose brought suit against Kennesaw House, Inc., d/b/a Brickworks Restaurant, and Kennesaw House, Ltd. for injuries Mrs. Rose sustained when she slipped and fell on a ramp as she left the restaurant and for loss of consortium. The complaint alleged that appellees failed to properly maintain the premises and to warn business invitees of the hazardous condition of the premises. After discovery, appellees moved for summary judgment. The motion was granted, and appellants appealed.

The record on appeal contains none of the deposition testimony referenced by the parties in their briefs; however, the undisputed facts as found by the trial court in its order demonstrate that on December 27, 1987, after spending an evening of eating, dancing and playing video games in the restaurant, Mrs. Rose, while making her way to her car, noticed that it was raining, and that the front porch of the restaurant was wet. The ramp upon which Mrs. Rose slipped is located on the front porch and “is constructed of poured, small aggregate concrete with a relatively smooth but somewhat uneven surface.” Mrs. Rose admitted going up and down the ramp previously in rainy weather and noticed other customers using the ramp on the night of her fall. According to the trial court, Mrs. Rose does not know what caused her to slip and fall; there were no claims that debris was in her path, that she was distracted or that the lighting was poor. In opposition to the motions for summary judgment, appellants submitted the affidavit of an engineer who averred that the slope of the ramp was excessively severe; that the top surface texture of the ramp provided inadequate skid resistance; that the handrails provided were inadequate; and that its construction made the ramp a serious slip hazard for pedestrians walking down the ramp. Mrs. Rose averred that she had no knowledge prior to her fall that the ramp was in any way defective and that by stepping on it, her foot would lose traction and she would fall.

Case No. A91A1956

“ ‘In order to establish a right of recovery against (an owner or occupier of land) for negligently allowing a hazardous or defective condition to exist on the premises, a plaintiff-invitee must prove that the owner had superior actual or constructive knowledge of the existence of the condition and of the danger presented thereby. [Cits.] However, to prevail on motion for summary judgment, the defendant in such a case, as movant, has the burden of proof and thus must establish the absence of such superior knowledge on its part, with all doubts and conflicts in the evidence being resolved in favor of the plaintiff. (Cits.)’ [Cit.]” Spivey v. Bd. of Education &c. County, 194 Ga. App. 726 (391 SE2d 783) (1990). “ ‘ “[I]f [the] invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.” ’[Cits.]” Harmon v. Reames, 188 Ga. App. 812, 814 (374 SE2d 539) (1988). The evidence is clear and unequivocal that Mrs. Rose had previously walked up and down the ramp in rainy weather, such that her knowledge of the alleged inadequacies was equal to that of the appellees. “When a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. [Cits.]” Rossano v. Am. Legion Post No. 29, 189 Ga. App. 610, 612 (376 SE2d 698) (1988).

The trial court found that appellees never received a complaint about the condition of the ramp prior to the date of Mrs. Rose’s fall and that there was no evidence that an employee was in the immediate vicinity to notice a dangerous condition or that appellees failed to exercise reasonable care in inspecting the premises; thus, no inference of constructive knowledge of a hazardous condition could be implied. Moreover, appellants failed to sustain the shifting evidentiary burden of demonstrating such superior constructive knowledge. See Parker v. Food Giant, Inc., 193 Ga. App. 337 (2) (387 SE2d 615) (1989). Appellees also were under no duty to warn Mrs. Rose of a condition of which she had equal knowledge. “ ‘An invitee is under an equal duty with the owner to use her sight to discover any defect or dangers. (Cits.)’ [Cit.]” Roberts v. Gardens Svcs., 182 Ga. App. 573, 574 (356 SE2d 669) (1987). Based on the foregoing, we conclude that the trial court did not err in granting summary judgment to appellees.

Decided March 10, 1992

Reconsideration denied April 1, 1992

Edwards, Friedewald & Grayson, James W. Friedewald, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Robert C. Semler, Philip P. Taylor, for appellees.

Case No. A91A1957

In their cross-appeal, appellees contend the trial court abused its discretion in failing to dismiss this appeal for appellants’ failure to timely file a transcript. Appellants’ notice of appeal, filed on March 19, 1990, included the following language: “Transcript of evidence and proceedings will be filed for inclusion on the record on appeal.” Because of this language, transmittal of the record to this court was delayed. However, no transcript was ever taken in the case. Appellees filed their motion to dismiss on July 11, 1990. Appellants explained that the language was mistakenly not deleted from its computer generated notice of appeal. The trial court determined that appellants’ failure was a scrivener’s error, was neither unreasonable nor inexcusable and that while appellees had no duty to inform appellants of the error, they could not rely on the language when they knew no transcript had been taken. The trial court noted that immediately upon being informed of the error, appellants corrected the error. The trial court has discretion to dismiss an appeal for failure to timely file a transcript, and inasmuch as the trial court determined that the delay in transmitting the record was neither unreasonable nor inexcusable (see Baker v. Southern R. Co., 260 Ga. 115, 116 (390 SE2d 576) (1990)), we find no abuse of discretion in the trial court’s refusal to dismiss the appeal.

Judgments affirmed.

Birdsong, P. J., and Pope, J., concur.