text:
    A97A0738.
    MACK II, INC. v. CITY OF ATLANTA et al.
    (489 SE2d 357)
   Smith, Judge.

This action arose after the City of Atlanta Bureau of Purchasing & Real Estate (the Bureau) withdrew its approval of a food concession contract from Mack II. Following the withdrawal, Mack II filed a petition for writ of certiorari in superior court and also filed a complaint for equitable relief and damages. The trial court dismissed the complaint, concluding that review by writ of certiorari was the exclusive means of review of the Bureau’s decision. From this dismissal Mack II appeals. We agree with the trial court’s conclusion and affirm.

The following facts are undisputed. Mack II and two other corporations, Sylterbran, Inc. and J-Curt, Inc., submitted proposals for two food concessions at the Hartsfield Atlanta International Airport. The Department of Aviation reviewed the proposals and recommended acceptance of Mack II’s proposal. The City of Atlanta passed a resolution approving the recommendation, which the Mayor approved in May 1995. The Bureau subsequently notified Sylterbran that the contract had been awarded to Mack II, and Sylterbran filed a protest of that award; the protest was denied by the Bureau.

Sylterbran then requested a hearing before a procurement appeals hearing officer, which was held August 1, 1995 (the first hearing). In a written order, the hearing officer concluded, among other things, that Mack II’s bid must be rejected because Mack II did not meet certain criteria required by the “Invitation for Proposals” (IFP) issued by the City and that the City acted improperly in awarding the contract to Mack II because Mack II was not the most responsible and responsive bidder or firm as required by the City Code. The officer went on to require the City to consider the proposals submitted by the other two corporations. Finally, the order recited that if, after considering the other proposals, the City determined neither to be qualified, the City could reject both proposals. Defendant Felicia Strong-Whitiker, the Director of the City Bureau, notified Mack II that the City would reject all three proposals and would solicit new proposals.

Mack II then protested Strong-Whitiker’s decision pursuant to certain provisions of the Atlanta City Code. After that protest was denied, Mack II filed a notice of appeal. On January 4, 1996, a hearing before another procurement appeals hearing officer was convened to address, among other things, Mack II’s appeal (the second hearing). By order issued February 12, 1996, the hearing officer dismissed Mack II’s appeal. The officer concluded that under the doctrines of res judicata and collateral estoppel, the decision rendered following the first hearing precluded Mack II from pursuing its appeal.

On March 13, 1996, Mack II obtained a court order sanctioning its petition for a writ of certiorari to the superior court. On March 14, 1996, Mack II filed its petition, and the writ was issued by the Fulton County Clerk of Court. On the same day the court sanctioned Mack II’s petition for a writ of certiorari, Mack II filed a complaint against the City of Atlanta and Strong-Whitiker seeking a declaratory judgment, an injunction, specific performance, and damages under the United States and Georgia Constitutions. The trial court dismissed Mack II’s complaint on the ground that the proceeding that aggrieved Mack II was quasi-judicial, from which a writ of certiorari was the only available means of review. This appeal by Mack II ensued.

1. The principal issue to be decided in this case is whether Mack II was required to seek review of the second hearing officer’s February 1996 decision by certiorari to superior court. OCGA § 5-4-1 (a) provides in relevant part: “The writ of certiorari shall lie for the correction of errors committed by any inferior judicatory or any person exercising judicial powers.” In determining whether a writ of certiorari is the appropriate method of review we must decide whether the hearing officer whose order is being reviewed exercised judicial or quasi-judicial powers, or whether the officer merely exercised administrative or legislative functions. If the officer exercised judicial powers, his or her actions are subject to review on certiorari; if, however, the officer exercised legislative, executive, or ministerial powers, any error cannot be corrected by certiorari. Carr v. City Council of Augusta, 124 Ga. 116, hns. 1 & 2, 118 (52 SE 300) (1905).

The distinction between judicial and administrative functions is succinctly set out in South View Cemetery Assn. v. Hailey, 199 Ga. 478 (34 SE2d 863) (1945): “[T]he basic distinction between an administrative and a judicial act by officers other than judges is that a quasi-judicial action, contrary to an administrative function, is one in which all parties are as a matter of right entitled to notice and to a hearing, with the opportunity afforded to present evidence under judicial forms of procedure; and that no one deprived of such rights is bound by the action taken. [Cits.] . . . [T]he test is whether the parties at interest had a right under the law to demand a trial in accordance with judicial procedure.” (Emphasis supplied.) Id. at 481 (4) (a).

The City Code provides a mechanism by which certain parties “aggrieved in connection with the . . . solicitation or award of a contract may protest.” City Code § 2-1161 (a). The aggrieved party may protest to the purchasing agent, who has authority, “prior to administrative appeal and commencement of an action in court ... to settle and resolve a protest of an aggrieved [party], actual or prospective.” City Code § 2-1161 (a), (b). An aggrieved party may appeal the purchasing agent’s decision to a procurement appeals hearing officer. See City Code §§ 2-1164; 2-1166. Of particular importance to this case, the City Code specifically sets out hearing procedures. The hearing officer must set a hearing date and “shall cause notice of the hearing date to be served upon all parties, by registered mail. Such notice shall set forth with particularity the charges filed by the aggrieved party and shall include the hearing date, time and place.” City Code § 2-1166 (b) (1). The City Code further provides that “[a]t the hearing, all parties shall be provided a fair and impartial hearing and shall be allowed to produce any and all evidence in either party’s possession concerning the complaint.” (Emphasis supplied.) City Code § 2-1166 (b) (2).

Applying the test set forth in South View, supra, it is beyond reasonable argument that the City Code conferred on Mack II, as an aggrieved party, the right to a hearing “in accordance with judicial procedure.” Id. at 481 (4). Mack II was entitled to notice under the City ordinance, and a “fair and impartial hearing” was mandatory. In addition, Mack II was entitled pursuant to the ordinance to present “any and all evidence” in its possession concerning its grievance.

Contrary to Mack II’s argument, the fact that the Civil Practice Act did not apply to the proceeding to limit evidence did not make the proceeding as defined by the City Code any less “judicial.” The law does not so narrowly define a “judicial proceeding” as one requiring application of the Civil Practice Act. On the contrary, strict compliance with the rules of evidence is not required for a proceeding to be characterized as judicial. See Jackson v. Spalding County, 265 Ga. 792 (462 SE2d 361) (1995). Judicial actions simply cannot be so strictly defined. Several factors must be examined when determining whether a proceeding or action is judicial. For example, “judicial action” has been described as “an adjudication upon the rights of parties who in general appear or are brought before the tribunal by notice or process, and upon whose claims some decision or judgment is rendered. It implies impartiality, disinterestedness, a weighing of adverse claims, and is inconsistent with discretion on the one hand, — for the tribunal must decide according to law and the rights of parties, — or with dictation on the other; for in the first instance it must exercise its own judgment under the law, and not act under a mandate from another power. The tribunal is not always surrounded with the machinery of a court, nor will such machinery necessarily make its action judicial.” (Citation and punctuation omitted.) Southeastern Greyhound Lines v. Ga. Public-Svc. Comm., 181 Ga. 75, 78-79 (181 SE 834) (1935).

Here, the process required by the City Code and undertaken by the litigants imports judicial action. It is not disputed that notice of the January 1996 hearing was given, and the rights of the respective parties were addressed. Adverse claims were analyzed and weighed by the hearing officer. The officer was required to make a decision according to the law — to exercise discretion and judgment in application of the law to a particular set of facts. Such action by the officer speaks of judicial, rather than merely ministerial or administrative, functions. See generally Carr, supra at 118 (council action was judicial, because council was required to apply the law to facts). The hearing and subsequent decision by the hearing officer were judicial in nature, and a writ of certiorari would lie.

What It Is v. Jackson, 146 Ga. App. 574 (246 SE2d 693) (1978) and Ga. Farm Bureau Mut. Ins. Co. v. DeKalb County, 167 Ga. App. 577 (306 SE2d 924) (1983), cited by Mack II, do not persuade us otherwise. The city ordinances in those cases did not provide the litigants with a hearing or trial as a matter of right “in accordance with judicial procedure.” See What It Is v. Jackson, supra at 575; Ga. Farm Bureau, supra at 579. It is true that the ordinance in Jackson recited that all hearings were to be “administrative” in nature and that we relied on this fact in part to conclude that the actions at issue were not judicial in character. Id. at 576. Here, too, portions of the City Code use the word “administrative.” But descriptive uses of this word are not controlling. It is not the description of the office, body, or board performing the action that is scrutinized; the “character and nature of the authorized function” controls the issue of whether the function is judicial or quasi-judicial. South View, supra at 480.

The Supreme Court determined in Southeastern Greyhound, supra, that the Public Service Commission was exercising a regulatory function when it revoked a certificate of necessity; it did not apply a particular law to certain facts, thereby exercising a judicial function. The converse was true in Jackson v. Spalding County, supra, in which the Supreme Court held that the county board of zoning appeals was functioning “as an administrative body making a quasi-judicial decision when it acted on” variance applications because it “determine[d] the facts and applie[d] the ordinance’s legal standards to them.” (Footnote omitted.) Id. at 794 (2).

Decided July 14, 1997

W. Roy Mays III, for appellant.

In this case, regardless of the description of the process in the City Code, we must look to the particular function performed at the hearing in determining whether it was judicial or quasi-judicial in nature. When so viewed, it is clear that it was. The hearing officer engaged in a decision-making process, which is “akin to a judicial act.” Jackson v. Spalding County, supra at 794 (2). In making its decision, the officer was required to examine evidence and apply legal standards to determine whether Mack II was precluded from litigating certain issues. Even though the nomenclature of the City Code mentioned “administrative” review, the officer made a quasi-judicial decision in acting on Mack II’s claims. Id.

In summary, the January 1996 hearing was a quasi-judicial proceeding as contemplated by OCGA § 5-4-1 because the ordinance authorizing the hearing entitled the litigants to a hearing “in accordance with judicial procedures” and because the hearing officer acted judicially, rather than administratively, in hearing argument and applying the law as the officer interpreted it to the facts before it. Consequently, review by writ of certiorari was required. The trial court therefore did not err in dismissing Mack II’s complaint for equitable relief. See Wilson v. Latham, 227 Ga. 530, 533 (181 SE2d 830) (1971); Soerries v. City of Columbus, 222 Ga. App. 745 (476 SE2d 64) (1996); Wooten v. City of Atlanta, 149 Ga. App. 568 (254 SE2d 889) (1979).

2. Mack II also contends the trial court erroneously concluded that the January 1996 hearing comported with due process. We do not reach that issue because Mack II’s complaint was not a proper method for raising this contention. The issue is properly reserved for the trial court on review of Mack II’s writ of certiorari.

Judgment affirmed.

McMurray, P. J, and Beasley, J., concur.

Clifford E. Hardwick IV, Lemuel H. Ward, Jerolyn W. Ferrari, E. Y Teague, for appellees.

       Sylterbran also appealed the City’s decision to reject all three proposals and reissue its bid. The hearing officer in the second hearing consolidated these appeals over Mack II’s objection and also considered the protest of another corporation, Atlanta Specialty Foods, on a related issue.

       We also note Mack II’s argument that the ordinance did not provide him a right to intervene, such as that provided by OCGA § 9-11-24. He claims that the ordinance did not give him the right to participate as a party in the first hearing, Sylterbran’s appeal. It may be true that Mack II was not given this opportunity to participate as a party in the first hearing under the City Code, because it was not an aggrieved party. It is noteworthy, however, that the hearing officer found that Mack II was nevertheless represented at the first hearing and was not denied the opportunity to present evidence but did not seek to do so. Of more importance, though, is the fact that once Mack II became “aggrieved,” it then was expressly permitted by the City Code to pursue an appeal. Mack II therefore was never denied the right to review by the City Code and cannot complain that the lack of any provision regarding intervention harmed it or negated the judicial nature of the proceeding.

       For example, the City Code gives the purchasing agent the “authority, prior to administrative appeal and commencement of an action, ... to settle and resolve a protest.” City Code § 2-1161 (b). The Code further recites that the purchasing agent’s decision regarding a protest is “final and conclusive . . . unless any person adversely affected by the decision appeals administratively to the procurement appeals hearing officer.” City Code § 2-1161 (d).

       We make no decision here as to whether the hearing officer correctly or incorrectly applied the doctrines of res judicata and collateral estoppel, or whether it erroneously dismissed Mack II’s appeal. That issue is not ripe, and it is reserved for the trial court’s determination on the court’s review by certiorari.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A97A1658.
    ATLANTA MEDICAL ACCOUNTING CORPORATION, INC. v. FINANCIAL SOFTWARE, INC.
    (489 SE2d 93)
   Judge Harold R. Banke.

Atlanta Medical Accounting Corporation, Inc. (“AMAC”) appeals the entry of a default judgment in favor of Financial Software, Inc. (“Financial”).

The salient facts are undisputed. Financial filed its complaint against AMAC on October 17, 1996, for amounts purportedly past due on an account. On October 28, AMAC’s counsel signed an acknowledgment of the service of the process of summons, complaint, first interrogatories, and requests for production of documents. In executing the acknowledgment, AMAC’s counsel agreed to “waiv[e] all additional service of process, waiv[e] issuance of an original Summons, waiv[e] service of a Summons, and waiv[e] service of the Complaint.” This acknowledgment of service was file stamped November 11.

When AMAC filed its answer and counterclaim on December 5, 1996, even though its response was more than 30 days past the date when its counsel acknowledged service, AMAC failed to pay late fees. Nearly immediately thereafter, on December 16, Financial moved for the entry of a default judgment. After oral argument, the trial court granted Financial’s motion for default judgment for the undisputed amount set forth in the pleadings. AMAC appeals that judgment. Held:

AMAC contends that the trial court erred as a matter of law in granting the default judgment because the time to respond had not yet expired for filing its initial answer. AMAC claims that when its counsel signed the acknowledgment he did not realize the complaint had already been filed because the attorneys were still attempting to negotiate a settlement. AMAC argues that it had 30 days to answer from when the acknowledgment of service was filed with the court, not 30 days from when its counsel acknowledged service of the unfiled complaint.

Notwithstanding AMAC’s claims to the contrary, expressly acknowledging service of a complaint prior to the commencement of the action is permissible as long as the waiver of service before commencement of the action is limited to a specific suit intended by the parties that is filed without unreasonable delay. Whitley v. Whitley, 232 Ga. 866, 867-868 (1) (209 SE2d 199) (1974). Nevertheless, service of summons, unless waived, is required to notify a defendant of an impending action and his duty to respond within a specified time or incur judgment by default. Stamps v. Bank South, N.A., 221 Ga. App. 406, 408 (1) (471 SE2d 323) (1996); OCGA § 9-11-4 (b). See Henry & Co. v. Johnson, 178 Ga. 541 (1) (173 SE 659) (1933) (party may waive process and service of process before action is filed).

Decided July 14, 1997.

Levinson & Paul, Stephen M. Levinson, for appellant.

Higgins & Dubner, Steven Dubner, for appellee.

In this case, AMAC’s counsel expressly waived service of summons in the acknowledgment he executed. Because of the waiver, AMAC was not entitled to receive any further service of the action. Jones v. Jones, 209 Ga. 861, 863 (76 SE2d 801) (1953).

After service was made on AMAC’s agent under OCGA § 9-11-4 (d) (1), AMAC failed to answer within 30 days as required by OCGA § 9-11-12 (a), and the case automatically went into default. OCGA § 9-11-55 (a). See Ewing v. Johnston, 175 Ga. App. 760, 762 (1) (a) (334 SE2d 703) (1985) (30-day period begins to run when defendant served regardless of when return is filed). It is undisputed that AMAC failed to move to reopen the case and did not pay costs within 15 additional days. OCGA § 9-11-55 (a).

For the relief from a judgment by default, there must be a motion, meritorious defense, a legal excuse for late filing, and payment of costs. OCGA § 9-11-55 (b). AMAC presented no legal excuse for its late filing, merely asserting without supporting legal authority that it was entitled to file its answer later than permitted by OCGA § 9-11-12 (a). Further, AMAC’s counsel conceded that he had actual notice of the pendency of the suit and even knew the civil action number on or about November 6, approximately 21 days before the answer was due. Under these circumstances, we are not able to conclude that the trial court manifestly abused its discretion in refusing to open the default. Gowdey v. Rem Assoc., 176 Ga. App. 83, 84 (3) (335 SE2d 309) (1985); Taurus Productions v. Maryland Sound Indus., 155 Ga. App. 147, 148 (2) (270 SE2d 337) (1980).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Ruffin, Judge.

text:
    A97A0390.
    A97A0391.
    MORROW v. VINEVILLE UNITED METHODIST CHURCH et al. MORROW v. WOOD et al.
    (489 SE2d 310)
   Ruffin, Judge.

Jeannine Morrow appeals pro se from several orders entered by the Bibb County Superior Court in these two companion cases. For reasons which follow, we affirm in part and reverse in part.

Morrow is one of 11 beneficiaries to a trust formed by Mabel Anderson Coggin, who died May 31, 1990. The record reveals that in her will, Coggin bequeathed to the Vineville United Methodist Church Foundation (“the Church”) a sum equal to ten percent of her gross estate as finally determined for federal estate tax purposes. Except for a few other minor personal property bequests, Coggin directed that the remainder of her estate be placed into the trust. The will further appointed Trust Company Bank of Middle Georgia (“Trust Company”) as executor of Coggin’s estate.

To satisfy the Church’s bequest, Trust Company, as executor, transferred to the Church a percentage of the estate’s interest in Burgess Washington Clay, Ltd. (“BWC”). The record shows that the Church then sold that interest to several BWC partners. Trust Company also sold the estate’s remaining interest in BWC to various BWC partners.

Claiming that Trust Company had breached its fiduciary duty to the estate, transferred the estate’s interest in BWC without consent, undervalued that interest, and overpaid the Church, Morrow and the other trust beneficiaries sued Trust Company, as well as BWC, Malcolm Burgess, Jr., and other unnamed partners in BWC (collectively “the Burgess defendants”). The trust beneficiaries later added the Church as a defendant on the theory of money had and received. This suit forms the basis of Case No. A97A0390. In a separate suit, which resulted in Case No. A97A0391, the trust beneficiaries sued the estate’s attorneys for negligence, professional malpractice, and breach of fiduciary duty.

On October 19, 1994, the trial court granted summary judgment to the Burgess defendants. After further litigation and discovery, the remaining parties submitted to mediation on July 14, 1995. The Church and all trust beneficiaries except Morrow (“the appellee-trust beneficiaries”) contend that a settlement agreement was reached during the mediation, pursuant to which the Church agreed to pay the estate $121,430.17 in exchange for a dismissal and release from suit. No agreements were reached with the other defendants.

Following the mediation, Morrow disputed the settlement with the Church and refused to sign the release prepared by her attorneys. The appellee-trust beneficiaries signed the agreement. Morrow’s attorneys subsequently withdrew as her counsel, and the Church moved to enforce the settlement against her. After an evidentiary hearing, the trial court granted the Church’s motion and enforced the Mutual Release and Settlement Agreement drafted by counsel.

At the time of the hearing, the appellee-trust beneficiaries also moved to appoint a “virtual representative” to represent the entire group of beneficiaries, including Morrow. To support their motion, the appellee-trust beneficiaries argued that Morrow’s decisions to renege on the Church settlement and ignore the other beneficiaries’ wishes with respect to litigation strategy had impeded progress on the cases. According to these beneficiaries, “Morrow is so angry and emotionally involved in these suits that she is not capable of making a rational decision on these matters, and would prefer to stall indefinitely if matters do not proceed her way.” In their view, appointing a virtual representative would protect the interests of all beneficiaries, including Morrow, and enable the parties to arbitrate the cases, as desired by the other beneficiaries. The trial court granted the motion, appointed David E. Morrow, Sr. as a “virtual representative” of all beneficiaries, and dismissed the other beneficiaries from the cases.

Morrow appeals, claiming that the trial court erred in several respects. In Case No. A97A0390, she enumerates as error (1) the trial court’s order appointing David E. Morrow, Sr. as “virtual representative” of the trust beneficiaries; (2) the trial court’s order enforcing the settlement with the Church; and (3) the trial court’s October 19, 1994 order granting summary judgment to the Burgess defendants. The enumerated errors in Case No. A97A0391 revolve solely around the virtual representation order, which was also entered in that case.

The parties have filed several motions, which we will resolve before addressing the merits of these appeals.

The appellee-trust beneficiaries have moved to recuse Presiding Judge Birdsong from these appeals. This recusal motion, however, is moot. As shown by a November 14, 1996 order of this Court, Presiding Judge Birdsong is not participating in the appeals. Accordingly, the appellee-trust beneficiaries’ motion for recusal is denied. Morrow’s related motion for sanctions is also denied.

In addition, Morrow has moved (1) to dismiss the appellee-trust beneficiaries as improper parties to the appeals and (2) to restyle the appeals so that those beneficiaries are not designated as appellees. Under OCGA § 5-6-37, “[a]ll parties to the proceedings in the lower court shall be parties on appeal. . . .” See also Marsden v. Southeast ern Sash & Door Co., 193 Ga. App. 597 (1) (388 SE2d 730) (1989) (physical precedent only). The appellee-trust beneficiaries were parties to the trial court orders at issue here. Accordingly, they are proper parties to this appeal. OCGA § 5-6-37.

Furthermore, it appears that the appellee-trust beneficiaries’ interests are primarily adverse to Morrow’s interests in the appeals. The record shows that only Morrow opposed the Church settlement and that the appellee-trust beneficiaries moved the trial court to appoint a virtual representative, the two primary issues in these appeals. We conclude, therefore, that the appellee-trust beneficiaries were properly designated as appellees. Accordingly, Morrow’s motions to dismiss the appellee-trust beneficiaries and to restyle the appeals are denied.

Case No. A97A0390

1. Morrow first argues that the trial court erred in appointing a “virtual representative” to represent all trust beneficiaries in the suit. We agree.

Although recognized by Georgia courts, the doctrine of virtual representation has received only limited discussion, and no Georgia decisions applying the doctrine are factually similar to this case. The Supreme Court of Georgia has described the doctrine as a method for encouraging the free alienation of property. Leathers v. McClain, 255 Ga. 378, 379 (338 SE2d 666) (1986). In Cooney v. Walton, 151 Ga. 195, 208 (106 SE 167) (1921), for example, the Court found that an individual holding a remainder in a life estate could virtually represent and bind his unborn children in a suit regarding the sale of the property. The Court noted that “[i]n cases where titles are complicated by limitations and contingencies, both private and public interests may, under some circumstances, require the sale of the involved real estate, even as against persons not in being. In such a situation, courts are sometimes impelled to act by expediency and practical necessity, binding the interests of person [sic] not in being by recourse to the principle of representation.” Cooney, supra at 200.

Georgia courts have further described the doctrine as an “aid to securing justice, preventing hardship, inconvenience, and injustice.” Webb & Martin, Inc. v. Anderson-McGriff Hardware Co., 188 Ga. 291, 295 (3 SE2d 882) (1939). Latching onto this language, the appelleetrust beneficiaries argue that justice required the trial court to take action in the face of Morrow’s “intransigence.” They also claim that a representative can adequately protect her rights because all of the beneficiaries share a common interest in the suits.

To support their position, the appellee-trust beneficiaries cite numerous cases from other jurisdictions that explain the virtual representation doctrine. The cited cases, however, do not address whether a virtual representative may be appointed to silence opposition and dissension within a group of party plaintiffs. On the contrary, these cases involve virtual representation where, as in Cooney, all potential parties cannot be or simply were not joined in a suit. See Bowles v. Superior Court, 283 P2d 704 (Ca. 1955); In re Estate of Putignano, 368 NYS2d 420 (1975); Pittman v. Barker, 452 SE2d 326 (N.C. App. 1995). We have found, and the appellees have cited, no authority applying the doctrine of virtual representation to prevent a named plaintiff from further direct participation in a suit.

“The constitution of this state guarantees to all persons due process of law and unfettered access to the courts of this state. [Cit.] These fundamental constitutional rights require that every party to a lawsuit... be afforded the opportunity to be heard and to present his claim or defense, i.e., to have his day in court. [Cits.]” Hart v. Owens-Illinois, Inc., 165 Ga. App. 681, 682 (302 SE2d 701) (1983). The trial court’s virtual representation ruling effectively shuts Morrow out of litigation that she, along with the other trust beneficiaries, commenced in her individual and representative capacities. Similarities between Morrow’s interests and the representative’s interests do not justify the virtual representation order. Furthermore, we note that Morrow’s view of this case, and in particular its potential judgment value, differs greatly from that of the appellee-trust beneficiaries, thus undermining the claimed protection offered by the “virtual representative.” We find that the trial court’s order denies Morrow her day in court, thus infringing upon her due process rights. See Hart, supra.

The doctrine of virtual representation cannot be used to foreclose a party plaintiff’s access to the courts. We also reject Trust Company’s argument that the trial court’s equitable power to control the litigation and parties appearing before it supports the ruling. “Discretion in regulating and controlling the business of the court is necessarily confided to the judge.” (Citations and punctuation omitted.) Ace Bonding Co. v. State, 180 Ga. App. 261, 262 (1) (349 SE2d 15) (1986). That discretion, however, “ ‘is subject to the proviso that in so doing a judge does not take away or abridge any right of a party under the law. (Cit.)’ [Cit.]” Id.

Justice and equity do not allow the trial court to force Morrow out of this litigation simply because the appellee-trust beneficiaries find working with her difficult. Accordingly, the trial court’s order appointing David E. Morrow, Sr. as the “virtual representative” of the trust beneficiaries and dismissing all other beneficiaries from the suit is reversed.

2. Morrow further argues that the trial court erroneously enforced the settlement between the trust beneficiaries and the Church. We disagree.

Following a non-jury trial on the motion to enforce settlement, the trial court entered findings of fact and conclusions of law pursuant to OCGA § 9-11-52 (a). Those factual findings “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” OCGA § 9-11-52 (a); Tranakos v. Miller, 220 Ga. App. 829, 832 (1) (470 SE2d 440) (1996). Under the “clearly erroneous” test, we will not disturb the trial court’s factual findings if there is any evidence to sustain them. Hanson v. Kent, 263 Ga. 124 (2) (428 SE2d 785) (1993). Furthermore, we must construe the evidence to uphold the judgment. Exxon Corp. v. Butler, 173 Ga. App. 146, 147 (325 SE2d 806) (1984).

At the evidentiary hearing, the Church presented testimony from Geoffrey Cederholm, who served as counsel for all trust beneficiaries (including Morrow) at the July 14, 1995 mediation. Cederholm testified that Morrow and nine of the other ten beneficiaries attended the mediation. He further testified that before the mediation, the beneficiaries sent letters to all defense counsel indicating that their counsel did not “have the authority to offer or accept a settlement in these cases without the expressed written consent to all the terms from all the plaintiffs.”

As the mediation began, Cederholm and the attorney for the Church discussed the possibility of settlement. Cederholm then met with his clients, relayed the Church’s interest in settling the case, and communicated an offer from the Church. The beneficiaries rejected that offer and discussed reasonable counteroffers. Cederholm continued to negotiate with the Church, which eventually offered to pay $121,430.17 for a release and dismissal from the suit. Cederholm met again with his clients, discussed their options, and gave his opinion that the Church’s settlement offer was reasonable.

Cederholm testified that the beneficiaries, including Morrow, ultimately agreed to accept the Church’s offer and gave Cederholm actual authority to communicate that acceptance to the Church. Counsel for the Church then met with the beneficiaries, expressed his pleasure that they had reached a settlement, and shook hands with each beneficiary. The beneficiaries expressed no dissatisfaction regarding the settlement during or immediately after the meeting with the Church’s attorney.

Four days later, Cederholm wrote counsel for the Church, confirming the settlement as follows: “In exchange for the payment of $121,430.17, the Plaintiffs will dismiss with prejudice their claims against the church, and both sides will enter into a release agreement.” Counsel for the Church responded in writing that Cederholm’s letter accurately set forth the settlement agreement. Cederholm subsequently drafted a settlement release, which was forwarded to counsel for the Church, as well as each trust beneficiary. Cederholm testified that in addition to the typical “boilerplate” language, the written agreement provided that “the church will pay the plaintiff[s], will pay, in this case, the Estate [$]121,430.17 in exchange for a mutual releases [sic] and a dismissal with prejudice.” After several revisions to address specific concerns raised by Morrow and other beneficiaries, the agreement was finalized and signed by all but Morrow.

In opposition, Morrow presented the testimony of her father, one of the trust beneficiaries, who stated that he did not recall any discussions during the mediation about releasing employees of the Church. The record shows, however, that Morrow’s father signed the settlement agreement, which releases “the Church and each of its employees, successors and assigns.” Morrow also testified on her own behalf that the beneficiaries only “tentatively” agreed to release the Church for a dollar amount and that “none of the other information ... [in the] written agreement was presented to [the beneficiaries] or the full ramifications of it discussed with [them] on the day of that mediation.” She conceded, however, that one reason she refused to sign the settlement agreement was that no settlement had been reached with the other defendants in the case.

Based upon the evidence presented, the trial court found that during the mediation, the beneficiaries withdrew their requirement that they expressly consent in writing to each settlement term and accepted the Church’s settlement offer. The court further found that the final draft of the written settlement agreement embodies the terms of the settlement offered and accepted at the mediation. In light of these factual findings, the court concluded that the essential terms of the agreement were unambiguous and complete and that the written agreement accurately records these essential terms. Accordingly, the trial court enforced the written agreement and dismissed with prejudice the beneficiaries’ claims against the Church.

Construing the evidence to uphold the trial court’s judgment and applying the “any evidence” standard, we find sufficient evidence to support the judgment. Cederholm testified that the trust beneficiaries, including Morrow, orally authorized him to accept the Church’s settlement offer, whereby the Church would pay a stated sum into the estate in exchange for a full release and dismissal of claims. When the Church’s attorney subsequently met with the beneficiaries to thank them for entering the settlement, they raised no objection. Attorneys for the beneficiaries and the Church then exchanged letters memorializing the terms of the agreement. This evidence supports the trial court’s findings that the beneficiaries withdrew their requirement for express written consent and entered into a binding settlement agreement. See Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 676 (2) (308 SE2d 544) (1983) (“Ordinarily, for an attorney to bind his client to a settlement agreement where there is a dispute as to terms, the agreement must be in writing. [Cit.] . . . However, letters or documents prepared by attorneys which memorialize the terms of the agreement reached will suffice.”).

We similarly find no error in the trial court’s decision enforcing the written settlement release. The essential terms of the settlement were agreed upon at the mediation conference and confirmed by letters of counsel. The final written release simply memorialized those terms. The evidence authorized the trial court to find that the final draft of the release accurately reflected the terms of the settlement and the intention of the parties. The evidence further supported the trial court’s conclusion that concerns raised by Morrow regarding the form of the release were addressed in the final version. Accordingly, the trial court did not err in enforcing the written release.

3. In her final enumeration, Morrow claims that summary judgment should not have been granted to the Burgess defendants because Judge Bryant Culpepper entered the summary judgment order after recusing himself. Morrow does not challenge the summary judgment ruling on any other grounds.

The record shows that Judge Culpepper and the other superior court judges in the Macon Judicial Circuit decided, on their own motion, to recuse themselves after the trust beneficiaries initiated their separate suit against the estate’s attorneys because those attorneys are “members of the local Bar, who in [their] professional capacities work closely with the Judges of said court. . . .” Although dated October 14, 1994, the trial judges’ “Motion and Order” regarding recusal was not entered by the clerk’s office until November 17, 1994. Judge Culpepper’s summary judgment order in favor of the Burgess defendants was signed and entered on October 19, 1994.

Morrow argues that Uniform Superior Court Rule (“USCR”) 25 required Judge Culpepper to cease all action in this case on October 14, 1994, the date shown on the recusal “Motion and Order.” Pursuant to USCR 25.3, “[w]hen a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination . . . whether recusal would be warranted.” The clear purpose of this provision is to halt a trial judge’s work on a case following an allegation of bias for or prejudice against a party until that allegation can be resolved. USCR 25.3.

Decided June 6, 1997

Reconsideration denied July 15, 1997

L. Jeannine Morrow, pro se.

Glass, McCullough, Sherrill & Harrold, Geoffrey H. Cederholm, Martin, Snow, Grant & Napier, John T. McGoldrick, Jr., Jones, Cork & Miller, Thomas C. James III, King & Spalding, Frank C. Jones, O’Neal, Brown & Sizemore, Lamar W. Sizemore, Jr., for Vineville United Methodist Church and Wood.

We find that the superior court judges moved to recuse themselves from this case on October 14, 1994, before Judge Culpepper issued his summary judgment ruling. That motion, and the eventual order of recusal, however, did not result from allegations of bias or prejudice regarding the parties in this case. Rather, the motion and order stemmed from possible judicial partiality in the trust beneficiaries’ companion case against the estate’s attorneys. In light of the clear purpose of USCR 25.3, we do not find that the superior court judges’ October 14, 1994 motion for recusal required Judge Culpepper to cease all activity in this case, which involved no allegations of bias or prejudice.

Judge Culpepper’s power to rule in this case extended until November 17, 1994, when the order of recusal was entered by the clerk’s office and became effective. See OCGA § 9-11-58 (b); In re Smith, 211 Ga. App. 493, 495 (1) (439 SE2d 725) (1993) (“The scope of OCGA § 9-11-58 (b) appears to have been extended by implication beyond ‘judgments’ to include orders of any kind. [Cits.]”). Accordingly, this enumeration of error has no merit.

Case No. A97A0391

Morrow’s enumerations of error in Case No. A97A0391 revolve around the trial court’s virtual representation order, which was entered in both of the companion cases. As discussed in Division 1 of Case No. A97A0390, the virtual representation doctrine does not support the trial court’s decision to foreclose Morrow’s participation in these suits. For the reasons stated in that division, the trial court’s order appointing David E. Morrow, Sr. as the “virtual representative” of the trust beneficiaries and dismissing all other beneficiaries from this suit is reversed.

Judgment affirmed in part and reversed in part in Case No. A97A0390. Judgment reversed in Case No. A97A0391.

Pope, P. J., and Eldridge, J., concur.

       The record shows that the trust beneficiaries added the Vineville United Methodist Church and the Vineville United Methodist Church Foundation to the suit. We will refer to these two entities collectively as “the Church.”

       After Morrow refused to sign the settlement agreement with the Church, Cederholm withdrew as her counsel. He still represents the ten appellee-trust beneficiaries.


author: Pope, Presiding Judge.

text:
    A97A0543.
    AMERICAN MOTORISTS INSURANCE COMPANY v. NATIONAL UNION FIRE INSURANCE COMPANY.
    (489 SE2d 36)
   Pope, Presiding Judge.

In 1989 two women were assaulted and raped at an apartment complex owned by First Gibraltar Bank. Both women filed premises liability suits against First Gibraltar, and First Gibraltar made a claim for coverage under its commercial general liability policy (Policy 249) issued by defendant/appellant American Motorists Insurance Company. The aggregate limit on Policy 249, which provided coverage only for First Gibraltar’s repossessed properties, was $2 million, including defense costs.

The first premises liability case went to trial in February 1993, and the jury returned a verdict of $2.5 million for the victim. At that time the amount remaining available under Policy 249 was less than $1 million. American Motorists notified First Gibraltar’s excess umbrella carrier, plaintiff/appellee National Union Fire Insurance Company, that the aggregate policy limits had been reached and tendered to it the remaining policy limits. National Union took over defense of the claims and, a short time later, settled both claims for a combined amount of approximately $3,475,000.

In February 1995 National Union brought suit against American Motorists, contending, inter alia, that it had negligently failed to settle the premises liability cases. In February 1996 National Union amended its complaint to allege that American Motorists was obligated to provide coverage for the premises liability cases under a general liability policy issued by American Motorists to Mac Andrews & Forbes Holdings, Inc., First Gibraltar’s parent company (Policy 246). The trial court granted National Union partial summary judgment on this issue, and American Motorists filed the present appeal to this Court.

1. At the outset we note that it is undisputed that First Gibraltar is a named insured under Policy 246 and that the claims here are of the type that would come within the coverage afforded by that policy. There is also no dispute that National Union was the excess/ umbrella carrier for both Mac Andrews under Policy 246 and First Gibraltar under Policy 249, and that both are listed on its underlying schedule of insurance. The issue is whether National Union was relieved of its obligation to provide excess coverage to the extent Policy 246 afforded additional insurance to First Gibraltar covering these claims.

In support of its argument that Policy 246 provided coverage of these claims, National Union points to amendatory policy endorsement 21, which provides as follows: “If other valid and collectible insurance is available to the insured covering a loss also covered by this policy (other than insurance that is specifically in excess of the insurance afforded by this policy), the insurance afforded by this policy shall be in excess of and shall not contribute with such other insurance.” But American Motorists, quoting portions of endorsement 18 amending the “Coverage territory” provision of the contract, and relying on parol evidence about the intentions of the contracting parties, argues that Policy 246 did not provide coverage for the “geographic location” of First Gibraltar’s repossessed properties. National Union argues that endorsement 18 is inapplicable here because it amends only paragraph (c) of the “Coverage territory” provision of the policy, which defines coverage for locations outside the United States.

We agree that endorsement 18 expressly and unambiguously amends only paragraph (c) of the “Coverage territory” provision. “ ‘An insurance policy is governed by the ordinary rules of contract construction. (Cit.) The hallmark of contract construction is to ascertain the intention of the parties. (Cits.) However, when the terms of a written contract are clear and unambiguous, the court is to look to the contract alone to find the parties’ intent.’ [Cit.]” State Farm Fire &c. Co. v. American Hardware &c. Ins. Co., 224 Ga. App. 789, 791 (2) (482 SE2d 714) (1997). Under the terms of the insurance contract, Policy 246 provided coverage for the claims once the limits of coverage available under Policy 249 were reached, and parol evidence was inadmissible to vary the terms of the policy to show that Policy 246 and Policy 249 provided mutually exclusive coverage.

2. American Motorists also argues that National Union should be precluded from asserting its claims based on the doctrines of waiver and estoppel. Our Supreme Court has held that the defense of noncoverage can be subject to the doctrine of waiver and estoppel “where the insurer, without reserving its rights, assumes the defense of an action or continues such defense with knowledge, actual or constructive, of noncoverage. . . .” Prescott’s Altama Datsun v. Monarch Ins. Co. &c., 253 Ga. 317, 318 (319 SE2d 445) (1984). And this Court has held that “ ‘ “[i]f a liability insurer, with [full] knowledge of a ground of forfeiture or noncoverage under the policy, assumes and conducts the defense of an action brought against the insured, without disclaiming liability and giving notice of its reservation of rights, it is thereafter precluded in an action upon the policy from setting up such ground of forfeiture or noncoverage.” (Cit.) “The general rule of estoppel is . . . limited by the principle that a liability insurer may avoid the operation of the rule by giving the insured timely notice that, notwithstanding its defense of the action against him, it has not waived the defenses available to it against the insured. Such notice, to be effective, must fairly inform the insured of the insurer’s position, and must be timely. . . .” (Cit.)’ [Cit.]” Jacore Systems v. Central Mut. Ins. Co., 194 Ga. App. 512, 513 (1) (390 SE2d 876) (1990).

First we note that National Union had at least constructive knowledge of the existence of Policy 246 because it was listed as underlying insurance on the umbrella policy. But National Union argues that it reserved its rights to contest coverage, by letter dated May 24, 1993. That letter provided, in relevant part: “We acknowledge and accept your tender of the remaining limits . . . based on the claim documentation provided in the bordereau, subject to a full Reservation of Rights to explore your financial records with regards to these matters and to preserve any additional actions that we may deem necessary after investigating the circumstances of both the . . . claims.”

We do not find this language to be either broad enough or specific enough to preserve National Union’s right to contest coverage on the basis asserted here. National Union did not reserve its right to contest coverage on the basis that the claims were payable by other insurance but instead merely reserved its right to review the financial circumstances leading to the exhaustion of the policy limits under Policy 249 and to investigate the underlying claims. Moreover, several weeks prior to sending this letter, National Union sent another letter to its insured in which it specifically stated that it was not raising any “coverage” issues. Cf. Andrews v. Ga. Farm Bureau Mut. Ins. Co., 226 Ga. App. 316 (487 SE2d 3) (1997); Jacore Systems, 194 Ga. App. at 513-514 (1) (a) (wherein insured sent reservation of rights letter stating it “does not waive any of its rights or admit any obligation under the policy,” and explained further that the reservation was being made because of certain definitions and policy exclusions).

On motion for reconsideration National Union makes a new and additional argument that it was not required to reserve its right to contest coverage. National Union also posits for the first time in its motion for reconsideration that it had a right of contractual as well as equitable subrogation. We find these arguments to be without merit.

National Union cites Zurich Ins. Co. v. New Amsterdam Cas. Co., 117 Ga. App. 426, 429 (3) (160 SE2d 603) (1968) and Aetna Cas. &c. Co. v. Empire Fire &c. Ins. Co., 212 Ga. App. 642, 645 (1) (c) (442 SE2d 778) (1994) in support of its motion for reconsideration argument. In Zurich, this Court held that a subrogation provision in an excess insurer’s policy subrogating it to all the remedies of its insured entitled it to recover from the primary insurer “in the same manner that its insured would have had, had [the primary insurer], defended the case and paid off the judgment.” Id. at 430. Although Zurich did not specifically address the reservation of rights issue, in Aetna, relying on Zurich, we held a subrogation provision entitled the excess insurer to seek indemnification from the primary carrier, and that it was entitled to do so without a reservation of rights. National Union argues that paragraph 10 of the excess policy in this case gives it the same contractual rights. We disagree. That paragraph allows National Union to act “in concert” with the insured in the exercise of the insured’s rights of recovery against other persons and entities and sets up a formula for the apportionment of any recovery. Under these circumstances we are not prepared to say, as we did in Aetna, that the absence of a reservation of rights was of no consequence, especially in light of the fact that the insured in this case never sought coverage under Policy 246 and would have been required to pay American Motorists a substantial amount in “return dividends” under the terms of that policy had it done so.

Decided June 18, 1997

Reconsideration denied July 15, 1997

E. Wycliffe Orr, Kristine E. Orr, for appellant.

Goldner, Sommers, Scrudder & Bass, Glenn S. Bass, Benjamin D. Ladner, for appellee.

Judgment reversed.

Johnson and Blackburn, JJ, concur.

       National Union made this argument in .its motion for reconsideration but not in its original brief to this Court.


text:
    A97A0701.
    In re BILLY L. SPRUELL.
    (489 SE2d 48)
   Pope, Presiding Judge.

After notice and a hearing, the trial court held attorney Billy L. Spruell in indirect criminal contempt of court. On appeal, Spruell challenges the sufficiency of the evidence of contempt and argues that the trial court erred in considering testimony from an earlier hearing in the underlying proceedings. We conclude that the properly considered evidence was sufficient to support an inference of wilful contempt. The trial court erred in considering the testimony from the earlier hearing, however. We. therefore vacate the trial court’s judgment of contempt and remand the case to allow the court to reconsider the question without relying on the improperly admitted evidence.

1. On appeal of a conviction for criminal contempt, we view the evidence in a light to support the verdict and consider it sufficient if any rational trier of fact could have found defendant guilty of contempt beyond a reasonable doubt. In re Irvin, 254 Ga. 251 (2) (328 SE2d 215) (1985); In re Gouge, 206 Ga. App. 462 (1) (425 SE2d 882) (1992). Criminal contempt involves some form of wilful disrespect toward the court; it may involve intentional disregard for or disobedience of an order or command of the court, or it may involve conduct which interferes with the court’s ability to administer justice. Id. at 463-464. We are mindful that a court’s contempt power should be used sparingly. See Johnson & Reaves, Contempt of Court in Georgia, 23 Ga. State Bar Journal 66, 72 (1986). But we are also mindful that a court must be given room to act when faced with conduct which evinces resistance to authority and interferes with the ability of the court, in its broad institutional sense, to administer justice. Id. at 66. See also Bradley v. State, 111 Ga. 168 (36 SE 630) (1900); Gouge, 206 Ga. App. at 464 (1).

Viewed to support the trial court’s determination, the properly admitted evidence shows that a client came into Spruell’s office on a Thursday night and hired Spruell to represent him at his DUI trial, which was scheduled to begin the following Monday morning. Spruell knew he would be unable to represent the client at his scheduled trial, as Spruell was leaving the country early Friday morning for an extended vacation in a remote area where he would be totally unreachable. He nonetheless accepted payment from the client and agreed to represent him. Spruell’s office did file a request for a leave of absence (and, subsequently, a motion for continuance). But Spruell left without knowing if the request was granted, and without making arrangements for someone else to cover if it was not, thereby forcing the court to either postpone the trial or try the client without his attorney. This evidence is sufficient to support a finding of contempt, as a rational factfinder could infer that Spruell was wilfully disrespectful when he disregarded the scheduling order and forced the court to revise its schedule to fit his convenience.

Spruell contends that his failure to appear on Monday could not be contemptuous because it was impossible for him to appear on Monday, and one cannot be held in contempt for failing to do an act which is impossible for him to do. See In re Henritze, 181 Ga. App. 560, 562 (353 SE2d 58) (1987). But this contention misses the point: Spruell’s contempt was not in simply failing to appear on Monday, but in wilfully creating the impossibility by accepting an obligation he knew he would be unable to fulfill. We are not holding that an attorney should never accept a case in which a court date is scheduled that the attorney will be unable to make. But we are saying that an attorney should not accept a case just before leaving for a place where he will be totally unreachable up to and through that court date, without making sure that a leave of absence and/or continuance is granted, and without making arrangements for how the case should be handled if it is not.

Spruell suggests his conduct did not really delay or inconvenience the court, because the court would not have reached his client’s case on Monday anyway. At the contempt hearing, however, the assistant district attorney testified that he was ready to try the case and had his witnesses present, and the judge testified that all cases on the list to be tried were reached that week, with time to spare. In any case, it is clear that Spruell’s conduct wasted judicial resources and put the court in an untenable position, and that severe disruption of judicial processes would result if attorneys routinely engaged in this practice. The fact that a court will usually grant a leave of absence or continuance does not mean that an attorney can simply assume it will do so, thereby depriving the court of its ability to exercise its discretion.

2. Spruell also argues that the trial court erred in considering his client’s testimony from the hearing on the motion for a continuance, in which the client said that Spruell had failed to tell him that he would not be at the scheduled trial. We agree this testimony should not have been considered, as it was hearsay and violated Spruell’s right to confront witnesses against him. Testimony from a prior proceeding may be admissible if, among other conditions, the witness is unavailable for the later proceeding. Jones v. State, 250 Ga. 166, 167 (2) (296 SE2d 598) (1982). But there was no showing of unavailability in this case. Moreover, another condition for admissibility of prior testimony is relevant here: the party challenging the testimony must have had the opportunity at the earlier proceeding to cross-examine the witness on the issue to be decided in the later proceeding — which necessarily means that the earlier and later proceedings have to involve substantially the same issue. Prater v. State, 148 Ga. App. 831 (5) (253 SE2d 223) (1979); see also OCGA § 24-3-10. Here, Spruell’s associate was present at the earlier hearing and theoretically had the opportunity to cross-examine the client regarding what Spruell had told him. Because the prior proceeding was about continuation of the trial rather than the propriety of Spruell’s conduct, however, she had no practical reason to do so. Thus, the trial court erred in admitting the transcript of the client’s testimony from the earlier hearing for this reason as well.

The trial court’s error in admitting the transcript was arguably harmless, since Spruell’s lack of candor toward his client, while it may be of interest to the State Bar, is only marginally relevant to whether he was wilfully contemptuous toward the court. Yet this argument is belied by the trial court’s written order, which indicates that the court relied on the client’s inadmissible testimony in making its decision regarding Spruell’s contempt. In its findings of fact, the court twice refers to the client’s testimony that he did not realize Spruell would not be there on Monday; and in its conclusions of law, in setting forth the behavior that constituted the contempt, the court says that Spruell “cast his client upon the mercy of the court.”

Decided June 24, 1997

Reconsideration denied July 15, 1997.

Spruell & Dubuc, Melinda D. Taylor, Steven H. Sadow, for appellant.

Albert F. Taylor, Jr., District Attorney, Mary E. Moore, Assistant District Attorney, for appellee.

As discussed in Division 1, the properly admitted evidence was sufficient to support an inference of wilful contempt, regardless of what Spruell told his client. But the evidence would also have supported an inference that Spruell, while exhibiting arrogance and poor judgment, did not actually act with wilful contempt for the court. In making the former inference (wilful contempt) rather than the latter (poor judgment), the trial court apparently was influenced by testimony it should not have considered. Accordingly, we vacate the trial court’s order and remand the case to allow the court to reconsider the contempt question without relying on this evidence. Cf. Life for God’s Stray Animals v. New North Rockdale County Homeowners Assn., 256 Ga. 338 (349 SE2d 184) (1986); Harford v. Harford, 238 Ga. 351 (233 SE2d 183) (1977) (where basis of trial court’s decision on contempt is erroneous or unclear, it is appropriate to vacate judgment and remand for further consideration or clarification).

Judgment reversed and remanded.

Johnson and Blackburn, JJ, concur.


author: Birdsong, Presiding Judge. POPE, Presiding Judge, Beasley, Judge,

text:
    A97A0360.
    BALKCOM v. THE STATE.
    (489 SE2d 129)
   Birdsong, Presiding Judge.

Arthur Lee Balkcom appeals his conviction of felony involuntary manslaughter and the denial of his motion for new trial. Held:

The State has moved to dismiss this appeal because as a direct appeal, it is untimely, and as an appeal from an extraordinary motion for new trial, it has not been brought by the required discretionary appeals procedure. For the following reasons the State’s motion is granted.

Appellant was convicted of involuntary manslaughter on September 16, 1994, and no notice of appeal or motion for new trial was filed within 30 days as statutorily required to perfect a direct appeal. OCGA § 5-6-38 (a). On January 23, 1995, however, appellant filed a pro se motion for out-of-time appeal, but this motion was never ruled on by the trial court. Later, on March 23, 1995, appellant filed a pro se extraordinary motion for new trial, and on June 8, 1995, he filed a pro se notice of appeal of the trial court’s failure to rule upon his extraordinary motion for new trial. After appellant filed a motion for appointment of counsel in September 1995, the trial court apparently granted this motion as counsel entered an appearance on behalf of appellant on February 23, 1996. On August 1,1996, appellant’s counsel filed an amended motion for new trial which referred to appellant’s pro se extraordinary motion for new trial. After the trial court denied the extraordinary motion on September 13, 1996, on September 23, 1996, appellant’s attorney filed a notice of appeal purporting to appeal from the 1994 judgment of conviction and the denial of the extraordinary motion for new trial. The appeal was docketed with this Court on October 3, 1996.

Contrary to the dissent’s contention, the trial court did not merely unartfully refer to the motion as an extraordinary motion for new trial. After appointed appellate counsel entered the case, counsel filed a motion, captioned an amended motion for new trial, that amended “the motion for new trial previously filed by [Balkcom] pro se as an extraordinary motion for new trial.” Therefore it is apparent that Balkcom, the State, and the trial court all considered this motion for what it was — an extraordinary motion for new trial. Even on appeal Balkcom does not contend that this motion was anything other than an extraordinary motion for new trial. Although the dissent relies upon OCGA § 5-5-41, this section, which regulates extraordinary motions for new trial, adds nothing to the dissent’s argument.

Moreover, this appeal does not concern a ruling on a motion for out-of-time appeal or a motion for out-of-time motion for new trial. Even though Balkcom filed a pro se motion for an out-of-time appeal, the trial court did not rule on that motion before appellate counsel was appointed, and Balkcom’s appointed appellate counsel apparently abandoned the pro se motion for out-of-tiime appeal by not seeking a ruling on it. Additionally, this record does not support, nor does Balkcom contend, the trial court granted authority for Balkcom to file an out-of-time motion for new trial. Therefore, this was an extraordinary motion for new trial.

Disposition of this motion raises questions concerning the proper procedure for appealing the denial of an extraordinary motion for new trial. Under OCGA § 5-6-35 (a) (7), the discretionary appeals procedures are required for “[ajppeals, when separate from an original appeal, from the denial of an extraordinary motion for new trial.” It appears that the legislature, being well aware of the appellate practice in this state, contemplated that most extraordinary motions for new trial would be filed subsequent to and separate from an original appeal, and, thus, would be subject to the discretionary appeals procedure.

Nevertheless, when presented with the question of what appellate procedure is required when no timely notice of appeal was filed and only an extraordinary motion for new trial is filed, a panel of this Court held that the denial of an extraordinary motion for new trial was directly appealable, as it was not separate .from the original appeal in the case. Walls v. State, 204 Ga. App. 348 (419 SE2d 344). Further reflection reveals, however, that this case is an anomaly because its effect is to allow a party to avoid the consequences of failing to file a timely direct appeal simply by filing an extraordinary motion for new trial. As this practice would be contrary to that contemplated by our legislature in normal appellate circumstances, to the extent Walls can be read to authorize such a procedure, it must be overruled. To do otherwise would thwart the legislative intent expressed in OCGA § 5-6-38 (a) by allowing direct appeals of judgments entered more than 30 days before the notice of appeal was filed.

The fact that the notice of appeal filed on September 23, 1996, in this case designates both the judgment of conviction and the denial of the extraordinary motion for new trial as the subject of the appeal does not render this case subject to a direct appeal. Regardless of that designation, because no viable direct appeal was filed in this case, the appeal of the denial of appellant’s extraordinary motion for new trial is, perforce, separate from the original appeal. Consequently, this is an appeal of the denial of the extraordinary motion for new trial which was filed “separate” from an “original appeal,” within the meaning of OCGA § 5-6-35 (a) (7). A direct appeal does not lie.

In addition, the position taken in Walls v. State, supra, was rejected by the majority of this Court in the whole court case of Bohannon v. State, 203 Ga. App. 783 (417 SE2d 679) (Bohannon I). Although Bohannon I was reversed by .our Supreme Court (see Bohannon v. State, 262 Ga. 697 (425 SE2d 653),(Bohannon II)), the reversal was based on the conclusion that the appeal arose from the trial court’s grant of an out-of-time motion for new trial, and not from disagreement with the rationale espoused in Bohannon I. The Supreme Court held that “[t]he judgment of the Court of Appeals is reversed because the record shows that the trial court granted an out-of-time appeal and, consequently, this case is not subject to the rules governing extraordinary motions for new trial; that is, no application for appeal was required. We disagree with the Court of Appeals that by seeking (and obtaining) permission to file an out-of-time motion for new trial rather than an out-of-time appeal, Bohannon was necessarily pursuing an extraordinary motion for new trial.” (Emphasis in original.) Id.

Under these circumstances the majority’s rejection of the dissent’s position in Bohannon I is still valid: “If the dissent’s analysis were correct, neither a civil nor a criminal appellant would ever have to comply with the jurisdictional 30-day limitation established by OCGA § 5-6-38 (a). A civil or criminal appellant could simply file an extraordinary motion for new trial, asserting therein only issues that could and should have been raised in a timely motion for new trial, and then secure a direct appeal by filing a notice of appeal within 30 days of the denial of the extraordinary motion for new trial. Whatever else OCGA § 5-6-35 (a) (7) means, it does not purport to confer direct appellate jurisdiction to consider the merits of issues that could and should have been raised in a timely motion for new trial. The law is otherwise clear that an extraordinary motion for new trial is properly denied and will be affirmed on appeal if the motion raises only issues that could and should have been raised in a timely motion for new trial. Gaddis v. State, [245 Ga. 200 (265 SE2d 275)]. The law is also otherwise clear as to the proper method by which a criminal appellant can secure a direct appellate review of issues that could and should have been raised in a timely motion for new trial. That method is to secure leave to file an out-of-time appeal by demonstrating that the lack of diligence was attributable to his counsel and not to himself. Cannon v. State, [175 Ga. App. 741 (334 SE2d 342)]. It is that proper method which appellant in the instant case must follow. To hold, as the dissent suggests, would penalize neither civil nor criminal appellants for their own lack of diligence in pursuing their appellate rights and would effectively repeal the jurisdictional 30-day limitation established by OCGA § 5-6-38 (a).” (Emphasis in original.) Bohannon I, supra at 784.

Further, as Walls v. State, supra, was decided on May 27, 1992, after the whole court opinion in Bohannon I, decided on March 13, 1992, but well before the Supreme Court’s reversal in Bohannon II on February 5, 1993, it was inconsistent with whole court precedent and, thus, is of doubtful precedential authority. Moreover, considering our Supreme Court’s decision in Bohannon II, it is also doubtful that Walls still stands for the proposition it asserted. In Bohannon II, the Supreme Court held that the motion in question was not an extraordinary motion for new trial because the trial court gave permission to file an out-of-time motion for new trial. Bohannon II, supra at 697. As permission was obtained from the trial court to file the motion in Walls, the same reasoning should apply, and the appeal in Walls was from the denial of an out-of-time motion for new trial rather than from an extraordinary motion for new trial. Therefore, Walls was overruled, sub silentio, by the Supreme Court in Bohannon II. To remove all doubt, however, today we specifically overrule Walls v. State, supra.

These questions arise from the statement in OCGA § 5-6-35 (a) (7) that extraordinary motions for new trial are subject to the discretionary appeals procedures “when separate from an original appeal,” without defining that phrase. The whole court majority in Bohannon I held the term meant when separate from the original timely appeal in a case. We re-affirm that holding.

One cannot refuse or neglect to file a timely notice of appeal, wait for years to pass, file an extraordinary motion for a new trial, and then file a direct appeal from the denial of that motion by bootstrapping the unauthorized direct appeal to an untimely direct appeal. A timely filed notice of appeal is an absolute requirement to confer jurisdiction on the appellate court. Jordan v. Caldwell, 229 Ga. 343 (191 SE2d 530); Moody v. Moody, 141 Ga. App. 185, 186 (233 SE2d 385). Consequently, the jurisdiction of this Court cannot be based upon an untimely direct appeal over which the Court has no jurisdiction.

Moreover, OCGA § 5-6-36 (a) by indicating which extraordinary motions for new trial are not separated from the original appeal tac-. itly shows what is intended by “when separate from the original appeal.” Although captions of Code sections are not part of the law (OCGA § 1-1-7; Brown v. Earp, 261 Ga. 522, 523-524 (407 SE2d 737)), the caption for OCGA § 5-6-36 (“Filing of motion for new trial and motion for judgment notwithstanding verdict where appeal taken from judgment, ruling, or order” (emphasis supplied)) gives some idea of the General Assembly’s intent. This Code section contemplates that some extraordinary motions for new trial will be made before the record on appeal is forwarded to the appellate court and provides that when “matters complained of arise or are discovered subsequent to verdict or judgment which otherwise would not appear in the record, such as newly discovered evidence, and in other like instances, a motion for new trial or other available procedure shall be filed and together with all proceedings thereon shall become part of the record on appeal.” Otherwise, according to OCGA § 5-6-36 (a), the motion for new trial need not be transmitted as part of the record on appeal. Thus, this section contemplates a record that is being prepared as part of a timely appeal, and not some case that was final because no appeal was taken or because an appeal was taken and decided. Therefore, any extraordinary motion for new trial not forwarded with the record of the original, timely filed direct appeal falls within OCGA § 5-6-35 (a) (7), and an application to appeal is required.

Moreover, the notice of appeal is untimely with regard to the attempted appeal of the judgment of conviction entered on September 16, 1994. See generally OCGA §§ 5-6-34 (a); 5-6-37; 5-6-38. Accordingly, to the extent this appeal is from a judgment of conviction, it must be dismissed as untimely. Thompkins v. State, 157 Ga. App. 203 (276 SE2d 885).

In any event, the matters asserted in Balkcom’s extraordinary motion for new trial concern potential errors that should have been attacked as part of a direct appeal or as part of the motion for new trial filed after judgment. Therefore, these issues are not properly the subject of an extraordinary motion for a new trial. See Douthit v. State, 244 Ga. 471 (260 SE2d 875); Goodwin v. State, 240 Ga. 605 (242 SE2d 119).

As Balkcom’s appeal is untimely or is otherwise subject to the discretionary appeals procedure, it must be dismissed.

Appeal dismissed.

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

POPE, Presiding Judge,

concurring specially.

Under OCGA § 5-5-41 (b), any out-of-time motion for new trial must be an extraordinary motion for new trial; under OCGA § 5-6-35 (a) (7), any appeal from the denial of an extraordinary motion for new trial must be by application. Thus, it would appear from the statutes alone that the denial of any out-of-time motion for new trial would have to be appealed by application.

Yet in Bohannon v. State, 262 Ga. 697 (425 SE2d 653) (1993), the Supreme Court held that when a trial court granted a party permission to file an out-of-time new trial motion and then denied the motion on the merits, it was effectively granting an out-of-time appeal; so its denial of the motion on the merits was appealable without application.

In this case, it does not appear from the record that defendant sought and obtained permission to file an out-of-time appeal. Accordingly, this case is not controlled by Bohannon, and I agree with the majority that defendant’s failure to file an application must result in dismissal of his appeal.

In Walls v. State, 204 Ga. App. 348 (419 SE2d 344) (1992), and in her dissent here, Judge Beasley expresses the view that an application is unnecessary because the appeal from the denial of the out-of-time new trial motion cannot be “separate from an original appeal” when there was no original appeal. See OCGA § 5-6-35 (a) (7) (applications are required in “[ajppeals, when separate from an original appeal, from the denial of an extraordinary motion for new trial”). But the clause she relies on is simply a specific application of OCGA § 5-6-34 (d), allowing a direct appeal from the denial of an extraordinary motion for new trial when it can be addressed within the context of an existing appeal from an already appealable order. Language and logic dictate that an appeal from the denial of an extraordinary motion for new trial is in fact “separate from an original appeal” whenever there is no original appeal in the case.

Nonetheless, Walls need not be overruled, because like the defendant in Bohannon, the defendánt in Walls sought and obtained permission to file an out-of-time motion for new trial. 204 Ga. App. at 348. The specific language indicating that an application was not necessary because the appeal was not separate from the original appeal should be disapproved however.

I am authorized to state that Judge Smith joins in this special concurrence.

Beasley, Judge,

dissenting.

I respectfully dissent because OCGA § 5-6-35 (a). (7) is not involved. It requires that an application in the nature of a petition for permission to appeal (subsection (b)) be filed in cases in which a party desires to appeal from the denial of an extraordinary motion for new trial when separate from the original appeal. Balkcom’s appeal is from the judgment of conviction entered September 16, 1994, and the order denying his amended motion for new trial entered September 13, 1996. The notice of appeal was filed within 30 days of the latter event, and Balkcom’s court-appointed attorney filed an affidavit of poverty on his behalf in order to pursue the appeal.

Balkcom has been trying to get an appeal since January 1995 when, four months after his conviction, he filed pro se a motion for out-of-time appeal, explaining that it was not filed by counsel earlier because he could not pay her fee. Two months later, before that motion was acted on, Balkcom pro se filed a pleading which he entitled a “Motion for New Trial” and “Extraordinary Motion for New Trial.” He asserted the general grounds, plus ineffective assistance of counsel and voidness of the indictment on its face. The contents of the pleading determine its nature. It set out grounds appropriate to a motion for new trial, not an extraordinary motion. Goodwin v. State, 240 Ga. 605 (242 SE2d 119) (1978); Douthit v. State, 244 Ga. 471 (260 SE2d 875) (1979); Gaddis v. State, 245 Ga. 200 (265 SE2d 275) (1980). Balkcom also sought a copy of the record and transcript by a motion, but no action was taken by the court on either motion so he attempted to appeal the lack of a ruling. Nothing occurred, so he moved for appointment of counsel in September 1995, and again in November, together with a supporting brief in each instance.

The court eventually did appoint counsel, who entered an appearance on February 23, 1996. After the trial transcript was filed by the court reporter in June, counsel filed an “Amended Motion for New Trial” and argument and citation of authority in support of it on August 1. The motion was based on the general grounds, sought a hearing, and prayed for a new trial.

In light of this, a few days later the court ordered that Balkcom’s custodians return him to court for disposition of what the order referred to as the “Motion for New Trial.” Hearings are required on motions for new trial but not on extraordinary motions which fail to show any merit. Dick v. State, 248 Ga. 898, 899 (1) (287 SE2d 11) (1982). A hearing was held on August 26, and the court entered a denial of the motion on September 13, although it inartfully and inaccurately referred to the matter as a “Motion for Extraordinary Motion for New Trial”; such does not exist in legal procedure and was not attempted by Balkcom. Considering the grounds that were raised, it was an ordinary motion for new trial, as counsel had styled it and as the cases cited above hold. The amended motion raised only the general grounds, and it is evident that the court did not consider the aborted and inappropriate “extraordinary” motion which Balkcom had filed pro se in March 1995, because the court expressly noted that defendant did not file an allegation of ineffective assistance of counsel and ruled that any such allegation would be merit-less. The March motion had asserted that ground. It is from the order denying the amended motion and from the conviction that Balkcom appeals.

Balkcom is properly before this Court on a direct appeal. The events which transpired below, and particularly the actions taken by the trial court, demonstrate that the court treated the amended motion as one which met the requirement for consideration on the merits despite its untimeliness. OCGA § 5-5-41 (a) provides: “When a motion for a new trial is made after the expiration of a 30 day period from the entry of judgment, some good reason must be shown why the motion was not made during such period, which reason shall be judged by the court.” Appointing counsel long after the 30-day period following judgment, acknowledging the viability of counsel’s motion for new trial by having defendant brought back to court from prison, setting and holding a hearing, and denying the motion after considering not only its grounds but also one raised by the court, all demonstrate that the trial court permitted an out-of-time motion for new trial. That is authorized by OCGA § 5-5-41 (a), as judicially construed. Bohannon v. State, 262 Ga. 697 (425 SE2d 653) (1993).

Decided July 15, 1997.

William D. Phillips, for appellant.

Charles H. Weston, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

Balkcom’s appeal, initially sought in January 1995 and never abandoned, should be considered on its merits and decided.

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

        Bohannon v. State (concurred in by six justices) appears to contradict OCGA §§ 5-5-41 (b), 5-5-40 (a), and 5-6-39 (b), which contemplate that motions for new trial must be filed within 30 days of judgment, that no extension of time shall be granted, and that late motions for new trial are considered as a matter of law to be extraordinary motions for new trial. As stated by the Supreme Court in an earlier decision concurred in by all the justices, “there is a distinction between a motion for new trial and an extraordinary motion for new trial. A motion for new trial is one made ‘within 30 days of the entry of the judgment on the verdict, or entry of the judgment where the case was tried without a jury.’ [OCGA § 5-5-40.] An extraordinary motion for new trial is one made after the time for filing a motion for new trial has expired. See [OCGA §§ 5-5-40; 5-5-41].” (Footnote omitted.) Dick v. State, supra at 898-899 (1). See Gibbs v. State, 213 Ga. App. 117 (443 SE2d 708) (1994); Hooks v. State, 210 Ga. App. 171, 172 (435 SE2d 617) (1993); King v. State, 208 Ga. App. 77, 82 (430 SE2d 640) (1993) (Beasley, P. J., concurring specially), overruled on other grounds, Glover v. State, 266 Ga. 183 (465 SE2d 659) (1996). We are bound to follow Bohannon, supra, which allows a motion for new trial on general grounds to be filed late and not be considered an extraordinary motion for new trial, if the trial court is satisfied of good reason for the delay and grants leave to do so.


author: McMurray, Presiding Judge.

text:
    A97A0408.
    ARVIDA/JMB PARTNERS, L.P.-II et al. v. HADAWAY et al.
    (489 SE2d 125)
   McMurray, Presiding Judge.

Plaintiffs Thomas E. Hadaway and Linda R. Hadaway brought this trespass and nuisance action against defendants Arvida/JMB Partners, L.P.-II and Arvida/JMB Managers-II, Inc. to recover for damages caused by increased siltation of Upper Allatoona Creek which flows over the boundary of their property. Defendants appeal following a jury verdict and entry of judgment in favor of plaintiffs. Held:

1. Defendants’ first two enumerations of error maintain that the trial court erred in denying their motion for judgment notwithstanding the verdict on the issue of liability for damages for trespass or nuisance and on the issue of attorney fees. The standard for granting a motion for j.n.o.v. is the same as for the grant of a directed verdict, that is, that there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a).

The plaintiffs purchased their property in 1977 and completed construction of a home the following year. The siltation problem first arose in 1988, about the time that development began of a subdivision known as Burnt Hickory Lakes (hereafter “BHL”). At that time BHL was being developed by Douglas F. Dowd and various entities with which he was involved. Dowd and the related entities were sued by the plaintiffs in an earlier action grounded on essentially the same trespass and nuisance theories as those upon which the present case is predicated. That earlier action was terminated by a settlement agreement which is the primary basis for the defense in the case sub judice.

Defendants acknowledge that the decision in Ross v. Hagler, 209 Ga. App. 201 (433 SE2d 124) provides authority that the evidence in the present case presents jury questions on the liability issue and the bad faith attorney fees issue. However, defendants argue that the present case is factually distinguishable from those in that earlier case because the settlement agreement in the Dowd action operates to bar plaintiffs’ claims in the present action.

The relevant portions of that settlement agreement provide that:

“1. Plaintiffs will dismiss with prejudice the amended complaint filed April 26, 1989; . . .

“3. Plaintiffs will provide a full and final release of any and all claims against Douglas F. Dowd, Dowd Developments, Burnt Hickory Development Corporation or any other entity in which Douglas F. Dowd has an interest, their officers, directors, agents, employees, predecessors in interest, successors, assigns, and other legal representatives arising out of the development of Burnt Hickory Lakes Subdivision;

“4. Plaintiffs represent that they are not aware of any downstream property owners who have asserted or plan to assert any claims against Defendants with respect to sediment and silt in the creek;

“5. Plaintiffs acknowledge that Arvida will purchase the Burnt Hickory Lakes Subdivision and will resume further construction at said subdivision. Plaintiffs enter into this agreement with the acknowledgment that further siltation in the creek may occur as a result of the Arvida construction;

“6. Plaintiffs will commence removal of silt from that portion of the creek on the Plaintiffs’ property within 30 days of the occurrence of the following events;

“(a) finding by Cobb County of compliance with county regulations for erosion and sediment control at the Burnt Hickory Lakes Subdivision and a removal of the Stop Work Order now in place, and

“(b) notification to Plaintiffs by Arvida of sufficient sediment and erosion control measures in place to prevent further adulteration of the creek on Plaintiffs’ property;

“7. Prior to beginning the silt removal operation Plaintiffs will cooperate with Arvida in any reasonable interim measures Arvida deems necessary to prevent downstream adulteration of the creek and further, once silt removal begins on Plaintiffs property, Plaintiffs will proceed in good faith to complete silt removal as soon as practicable. Plaintiffs further agree not to take any action which will cause the silt in the creek on Plaintiffs property to flow further downstream;

“8. Upon commencement of silt removal said operation will be done under the supervision of Derry Stockbridge who, upon completion of said silt removal operation will provide a letter of completion of work which will be provided to Defendants;

“9. Defendants agree to pay to Plaintiffs the sum of $30,000.00 by cashiers check madé payable to the law firm of Porter & Doster upon the execution of this agreement and receipt of the documents referenced in paragraphs one and three of this agreement;

“10. Plaintiffs enter into this agreement with the understanding that Defendants are performing no further work at Burnt Hickory Lakes Subdivision other than efforts to achieve compliance with Cobb County Erosion and Sediment Control Ordinances; . . .

“This document fully and accurately details all elements of the agreement between the parties.”

This settlement agreement was signed by the plaintiffs and by Dowd, both individually and for certain related entities. Neither the defendants nor any related Arvida entities signed or participated in the negotiations culminating in the Dowd action settlement agreement.

The crux of defendants’ position is their argument that they are third-party beneficiaries under the Dowd settlement agreement to whom is granted under the terms of that agreement the consent of plaintiffs, or a license, to trespass upon the land of the plaintiffs by continued siltation of the creek in connection with their development of BHL. See Spencer v. Mayor &c. of Gainesville, 140 Ga. 632 (2) (79 SE 543); Sheftall v. Zipperer, 133 Ga. 488, 492 (2) (66 SE 253); Newman Mfg. Co. v. Young, 109 Ga. App. 763 (137 SE2d 367). While the proposition advanced by defendants may be authorized under the evidence from the trial, in the present posture of the case we need hold only that such a conclusion is not compelled as a matter of law. We therefore find defendants’ first two enumerations of error which are predicated on the supposition that the Dowd settlement agreement bars plaintiffs’ claims to be lacking in merit.

While the defendants may benefit from plaintiffs’ performance of their obligations under the Dowd settlement agreement, such is not alone sufficient to establish that defendants are third-party beneficiaries of the settlement agreement. It must also be established that there was an intent on the part of the parties to the settlement agreement to bestow some advantage upon defendants. Broadfoot v. C & S Nat. Bank, 208 Ga. App. 382, 383-384 (430 SE2d 638), overruled in part on other grounds, Hanna v. McWilliams, 213 Ga. App. 648, 651 (2) (446 SE2d 741); Walls, Inc. v. Atlantic Realty Co., 186 Ga. App. 389, 391-392 (1) (367 SE2d 278). In our view, the Dowd settlement agreement is at best ambiguous on this question of whether there was any intent to benefit the Arvida entities such as defendants.

The defendants rely particularly upon plaintiffs’ receipt of a sum of money combined with the indication under paragraph 5 that plaintiffs recognized that further siltation would occur during the Arvida construction of BHL and the agreement in paragraph 6 that plaintiffs would see to silt removal after receiving certain notices. However, we do not agree that plaintiffs’ acknowledgment that further siltation would be a likely result of further construction necessarily means that they consented to a further trespass upon their land. Nor does the provision regarding the timing of the cleanup necessarily suggest consent to a further trespass since it may only reflect an attempt to seek an end to the siltation problem before expending resources for this purpose. We also note the obvious alternative hypothesis that the provisions relied upon by defendants merely reflect measures taken by the parties to the settlement agreement to avoid liability to other downstream property owners.

Furthermore, application of the statutory rules of construction fails to resolve the apparent ambiguity of the settlement agreement. See OCGA § 13-2-2. Consequently, the trial court did not err in submitting to the jury the question of the proper construction of the Dowd settlement agreement. Chattahoochee Chase Condo. Assn. v. Ruben, 221 Ga. App. 724, 725 (1) (472 SE2d 520); Century 21 Pinetree Properties v. Cason, 220 Ga. App. 355, 358 (2) (d) (469 SE2d 458); Travelers Indem. Co. v. A. M. Pullen & Co., 161 Ga. App. 784, 790 (8) (289 SE2d 792).

It follows that defendants’ theory of estoppel was also properly submitted to the jury. This theory of defense is predicated on alleged promises contained in the Dowd settlement agreement and whether or not such promises existed must be determined by the jury in the course of resolving the ambiguity of the agreement.

Insofar as defendants’ contention that it was error for the trial court to deny their motion for j.n.o.v. as to the attorney fees issue is predicated upon the alleged consent provided by the Dowd settlement agreement, it requires no further comment. However, defendants’ argument may also present a second position, that even if there is a factual question as we have found to exist with regard to the intent of the parties to the Dowd agreement, that the motion should have been, granted because the evidence compels a conclusion that defendants were not guilty of bad faith. This supposition is based on the apparent knowledge of both plaintiffs and defendants, from the time that defendants assumed control of the development, that further development would likely result in further siltation of defendants’ property despite the prodigious efforts of defendants to curtail the problem. The flaw in this argument, that the siltation was unintentional, is the presumption that development of the project would inevitably continue. In fact, defendants chose to continue development of the project in the face of certain knowledge that further damage to plaintiffs’ property would result. In view of this evidence of bad faith on the part of defendants, the trial court did not err in denying defendants’ motion for j.n.o.v. as to the attorney fees issue. Ross v. Hagler, 209 Ga. App. 201, 204 (3), supra.

2. In their remaining enumeration of error, defendants maintain that the trial court erred in charging the jury under OCGA § 51-12-6. We are referred by defendants’ brief to an objection that “I have a problem with whichever of the charges the Court was using, and it would have been 41 or 43,1 think, to the extent that damages for discomfort, loss of peace of mind, happiness and annoyance was given.” The language from the charge which defendants identify as that which they challenge was not contained in plaintiffs’ Request to Charge Nos. 41 or 43, although it may have been given in lieu of those requests.

“ A party may not complain of the giving or failure to give an instruction to the jury unless he objects to the instruction before the jury returns its verdict, stating distinctly his objection and the grounds of his objection. OCGA § 5-5-24 (a). Failure to except before verdict generally results in a waiver of any defects in the charge (cit.), the exception (being) a substantial error which was blatantly apparent and prejudicial, and which resulted in a gross miscarriage of justice. (Cits.)’ (Punctuation omitted.) Hayden v. Sigari, 220 Ga. App. 6, 11 (6) (467 SE2d 590) (1996).” Pope v. Goodgame, 223 Ga. App. 672, 675 (3) (c) (478 SE2d 636). In this instance, nothing is preserved for appellate review because of the failure to state any grounds for the objection. Dept. of Transp. v. Old Nat. Inn, 179 Ga. App. 158, 162 (4) (345 SE2d 853).

Nonetheless, there has been no actual prejudice to defendants or miscarriage of justice arising from the trial court’s use of language from OCGA § 51-12-6, which sets the measure of damages for injury to peace, happiness, or feelings, by the enlightened consciences of the jurors. Pursuant to OCGA § 41-1-4, a plaintiff in an action for nuisance may recover for both damage to the person and the property. City of Atlanta v. Murphy, 194 Ga. App. 652 (391 SE2d 474). In the nuisance case, “[t]he measure of damages for ‘discomfort, loss of peace of mind, unhappiness and annoyance’ of the plaintiff caused by maintenance of a nuisance is for the enlightened conscience of the jury. Mayor &c. of Waynesboro v. Hargrove, 111 Ga. App. 26 (2) (140 SE2d 286) (1965).” City of Columbus v. Myszka, 246 Ga. 571, 573 (6) (272 SE2d 302). See also Roddenbery Farms v. Leverich, 192 Ga. App. 153 (384 SE2d 243). The issue of damages to the person was a proper element of plaintiffs’ recovery and was submitted to the jury on the proper measure of damages.

Decided July 15, 1997.

Greene, Buckley, Jones & McQueen, Francis C. Schenck, for appellants.

Hamil, Dickinson & Dubuc, Brian M. Dubuc, for appellees.

Judgment affirmed.

Ruffin, J., concurs. Smith, J., concurs in the judgment only. Beasley, J., not participating.