author: Beasley, Judge.

text:
    A96A2546.
    HAYGOOD v. THE STATE.
    (483 SE2d 302)
   Beasley, Judge.

1. Haygood was convicted of criminal trespass and contends the evidence was insufficient to show she acted with criminal intent. The charge stemmed from an incident in which Haygood trimmed a hedge located on the property of her neighbor King. As relevant here, “A person commits the offense of criminal trespass when he intentionally damages any property of another without his consent and the damage thereto is $500.00 or less or knowingly and maliciously interferes with the possession or use of the property of another person without his consent.” OCGA § 16-7-21 (a).

Sufficiency of the evidence is reviewed with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict. Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979); Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986).

Haygood' and King had a history of difficulties, including disputes over the location of their common property line. King testified that before the incident a survey was performed on the boundary line. Photographs showed the relation of surveyor’s stakes and metal pins to utility installations, and the relation of the utility installations to the hedge. When planting his hedge, King placed the individual bushes 15 to 18 inches on his side of the surveyed property line.

Kang learned that the bushes had been sheared on Haygood’s side of the hedge in a vertical line parallel to the property line some ten to fifteen inches on King’s side of the property line. There was then a gap roughly a foot wide between his hedge and Haygood’s property. In addition, he considered the manner in which the hedge was trimmed aesthetically unpleasing as he usually trimmed the hedge in a rounded shape. When he would trim, he did so on all sides while standing on his own property and reaching over. He also testified that Haygood’s cutting reduced the volume by about a third, and he was concerned that the hedge would not grow back properly.

The other State’s witness testified that he saw Haygood, while standing on her property, trim the hedge on the day in question, the Friday of Labor Day weekend in 1995. Haygood, who acted pro se, did not introduce any evidence.

She argues, in part, that there is no evidence she intentionally damaged King’s property because his opinion concerning the aesthetics of the hedge and his concern for its future growth do not show any damage to its value. The jury had ample evidence from which to conclude that Haygood intentionally damaged King’s property to a degree having some monetary value, without King’s consent, by her foot-wide encroachment with her hedge clippers. The evidence of the marked survey and the history of the property line dispute between the neighbors authorized the jury to find that Haygood acted with knowledge that what she cut was on King’s property.

Citing Bowman v. State, 258 Ga. 829 (376 SE2d 187) (1989), Haygood urges that no criminal intent was shown because she was acting on a good faith belief that she was trimming the hedge on her property. Trimming the hedge exactly vertically to the property line would be consistent with her property right, which extends upward along the property line indefinitely. OCGA § 44-1-2 (b). Bowman ruled that a defendant who could establish a good faith reliance on a surveyor’s opinion as to what property was public and what was private, could not be found to have “knowingly” remained on the property of another after receiving notice to depart, under OCGA § 16-7-21 (b) (3). Id. at 831, 833. There is no evidence of any survey showing the boundary lay along the line where Haygood cut the hedge. There is no evidence Haygood ever contended or believed the property line lay where she cut the hedge. There was no evidence to support an argument that she thought the property line was where she cut the hedge, much less require the jury to so find. Although Haygood was not obligated to produce any evidence, in order to assert a good faith defense as done in Bowman, there must be evidence to support it. The only evidence of where the property line might be was the prior marked survey, and the jury could find Haygood knowingly ignored it.

2. In her second enumeration of error, Haygood contends the court exceeded constitutional bounds against cruel and unusual punishment in sentencing her to the maximum 12 months in jail and $1,000 fine, with surcharges totaling an additional $200. See OCGA §§ 16-7-21 (c); 17-10-3 (a) (1).

She relies on the principles applied in Fleming v. Zant, 259 Ga. 687, 689-690 (3) (386 SE2d 339) (1989), a case decided on the state constitutional ground. See Ga. Const, of 1983, Art. I, Sec. I, Par. XVII. Among the tests devised to measure whether a sentence is legally acceptable or not is to question whether it is “grossly out of proportion to the severity of the crime.” (Citations and punctuation omitted.) Id. at 689. It is not a static concept but evolves as society matures. Thus the courts must consider objective evidence such as legislative enactments. These are “the clearest and most objective evidence of how contemporary society views a particular punishment.” Id.

In this instance the legislature provided the whole range of misdemeanor punishment generally to all types of criminal trespass. OCGA § 16-7-21 (c). Considered in a broader context, this is the range for the commission of even the most egregious criminal trespass or other misdemeanor, including ones where personal violence such as simple battery is involved. OCGA § 16-5-23 (a) and (b). The maximum term of imprisonment is the same for misdemeanors of a high and aggravated nature. OCGA § 17-10-4 (a). Confinement can be in local or state custody. Sentences can be suspended or probated. Sentences can be loss of liberty or fine or both. Part-time confinement, such as on weekends or nonwork hours, can be imposed. The legislature left great leeway and a wide degree of discretion to the sentencing court, in all types of misdemeanor cases.

In Donna Haygood’s case, the trial court first offered her a choice of the ultimately imposed sentence or a fine of $625 and 80 hours of community service on probation, with the additional condition of limited contact with the Kings. While defendant was trying to understand the consequences of choosing either one on her right to appeal, and after she made known her decision to appeal, the court imposed the maximum sentence. Since the court could not penalize defendant for appealing, and since the court determined that the crime warranted either sentence, we must conclude that the court viewed the two choices to be equal in severity. But loss of liberty, which in this case would be an extended removal from society and family, differs drastically from monetary punishment and probation with conditions. The disparity is an indication of the gross disproportion. So also is the nature of this particular trespass, which is in the main a property line dispute made manifest by defendant’s trimming of her neighbor’s hedge approximately one foot on his side of the property line. An additional consideration is the status of the defendant, who had no prior valid convictions. Although she had been convicted of violating a local ordinance, the conviction was reversed. Haygood v. State, 221 Ga. App. 477 (471 SE2d 552) (1996).

Decided February 13, 1997

Reconsideration denied March 4, 1997

Christopher J. McFadden, for appellant.

Donna E. Haygood, pro se.

Leslie C. Abernathy, Solicitor, for appellee.

Application of the “standard of decency” which marked the Supreme Court’s adjudication of the constitutionality of the sentence in Fleming leads us to conclude that imposing on Haygood the maximum misdemeanor punishment would be viewed by society as “cruel and unusual” in the constitutional sense of disproportionality.

The conviction is affirmed, but the sentence is vacated and the case remanded for resentencing in conformity herewith.

Judgment affirmed, sentence vacated, and case remanded.

Birdsong, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A97A0002.
    ALLEN DECORATING, INC. v. OXENDINE et al.
    (483 SE2d 298)
   Birdsong, Presiding Judge.

Appellant Allen Decorating, Inc. appeals from the order granting summary judgment to appellees Lee Wall Oxendine and Oxendine & Associates, P.C. Appellant brought suit against appellee attorney and her law firm averring legal malpractice and fraud; appellees filed an $8,940 counterclaim for legal services previously billed to appellant plus interest on the unpaid account.

Appellant corporation is engaged primarily as a commercial painting contractor. In 1980 its corporate president, Ken Allen, became involved in a contested divorce action and sought assistance from attorney Mike Broadbear. Following the divorce, Allen was indebted to Broadbear for $10,000 in legal fees. On July 11, 1990, Allen elected to turn over all corporate accounts to Broadbear so the latter could pursue them to collection and apply any collection proceeds in satisfaction of Allen’s indebtedness. As time progressed, it appeared that Broadbear was too busy to pursue collection of appellee’s various accounts. Accordingly, approximately two years later, Allen retrieved his files, and several months later, on March 31, 1992, met with appellee Lee Oxendine and delivered to her four corporate accounts of a total amount exceeding $150,000. In April 1992, appellee Oxendine filed notices of appearance in collection cases pertaining to two of these accounts. In June 1992, appellee Oxendine filed applications for leave of absence in these two suits. The record, however, reveals that from April 1992 to December 1993, appellee Oxendine sent Allen more than 15 letters informing him of the need to sign a contract for legal services, and in several of these letters appellee expressly wrote that the contract must be signed before she could represent Allen or act in his behalf as his counsel. Allen, however, testified by deposition, that he had never received any of these letters until he ultimately retrieved his file from appellee Oxendine. In any event, Allen failed to sign the professional services contract, and in June 1994, appellee Oxendine filed a motion to withdraw as Allen’s counsel. Ultimately, appellee Oxendine withdrew as counsel regarding all of appellant’s claims.

The trial court issued a detailed order granting appellees summary judgment. In that order the trial court summarized the operative facts of this case as follows: Appellant is a corporation engaged in commercial painting; it is solely owned by Allen. Appellant corporation initiated three lawsuits to recover money allegedly owed it pursuant to painting contracts, and had asserted a counterclaim in another suit brought against it by a contractor. These suits were: Allen Decorating, Inc. v. Traylor Brothers, Inc.; T. H. Taylor v. Kenneth Allen d/b/a Allen Decorating, Inc.; Allen Decorating, Inc. v. Barge-Wagener, Inc.; and, Allen Decorating, Inc. v. Thatcher, Haynes, Kaufman (THK). After discharging Broadbear as counsel, appellant contacted attorney Oxendine regarding representing him in these suits. (For purposes of the summary judgment motion, appellees conceded before the trial court that appellant had employed appellees in regard to these claims.) Approximately two years thereafter, appellant dismissed Oxendine and hired a third attorney to represent him in the instant case.

Appellant’s malpractice claims are based upon allegations of deficient representation by appellees in the above four claims cases, (a) Attorney Broadbear represented appellant in the Traylor Brothers, Inc. case until March or April 1992; attorney Oxendine entered an appearance on behalf of appellant in this case in April 1992. Attorney Oxendine withdrew from the case in June 1994. This case is still pending in Fulton County State Court as Civil Action Case No. 90VS0015963. No attorney has entered an appearance in this case since appellant Oxendine withdrew, (b) Attorney Broadbear represented appellant when T. H. Taylor, Inc. filed suit against Kenneth Allen d/b/a Allen Decorating, Inc. Appellant filed a counterclaim. Subsequently Allen filed a Chapter 7 bankruptcy and the T. H. Taylor claim was automatically stayed until January 1991; the case was closed without prejudice in February 1991. Over a year later, appellant retained appellees and appellee Oxendine filed a notice of appearance in superior court (Civil Action No. 90-A-03797-4). Appellee Oxendine withdrew from the case in June 1994. (c) In June 1991, attorney Broadbear represented appellant with respect to its breach of contract claim against Barge-Wagener, Inc. However, Broadbear filed no suit in this matter. In March or April 1992, appellant sought representation from appellees regarding this claim. In April 1994, appellee Oxendine improperly filed suit on behalf of appellant in Fulton County Superior Court; in May 1994, Barge-Wagener was served properly in Cobb County. In November 1994, appellee Oxendine’s motion to withdraw from this case was granted. Although the Barge-Wagener claim remains pending, no attorney has entered an appearance in the case for appellant and no motion has been filed to transfer the case to the Cobb County Superior Court, (d) In 1989 a contract dispute arose between appellant and THK; attorney Broadbear filed a suit for damages against THK in behalf of appellant in superior court (Civil Action No. D-86029K17-415). In October 1991, THK filed a motion to dismiss the claim for failure of appellant to engage in arbitration pursuant to the terms of the contract and the order of the superior court. The case was dismissed without prejudice in December 1991. Appellee Oxendine received the case file in March 1992 but did not refile suit against THK prior to withdrawing from all of appellant’s other pending cases.

Regarding appellant’s claim of fraud against appellees, the trial court found the following: In June 1992, appellee Oxendine advised Allen that he might have a viable claim due to Broadbear’s alleged mismanagement of the THK case. Appellee Oxendine advised Allen that a malpractice claim against attorney Broadbear was appellant’s strongest case and recommended that course of action be pursued to the exclusion of the other contract claims. The trial court found that Allen “speaking for the corporation as its president, consented to that strategy.” In October 1992, appellee Oxendine allegedly received a purported offer of $495,000 in settlement of the Broadbear malpractice claim; this offer reflected it was tendered on behalf of VASA North Atlantic Insurance Company (VASA) by John Brazell in his capacity as a claims adjuster. Allen testified, by way of deposition, that on October 23, 1992, he received a “page” call from appellee Oxendine and that when he returned her call she informed him of an oral $495,000 settlement offer by the insurance company. It was approximately one month after October 23, 1992, when Allen received the offer in writing. There also is entered in the record letters from Allen, dated in March 1993, requesting appellee Oxendine to accept the offer and offering to give Oxendine a fee of $95,000, and a subsequent letter, dated October 13, 1993, purporting to be from appellee Oxendine to Allen advising that the VASA offer “on its face does not appear legitimate.” Appellee Oxendine did not attempt to contact Brazell or VASA either to confirm, refute or accept the offer; rather in May 1993, Oxendine wrote attorney Broadbear a letter demanding that he settle the malpractice claim against him for $64,000, the amount claimed in the complaint filed against THK. She testified, by deposition, that this latter action was taken to give attorney Broadbear notice of the malpractice claim against him and was with Allen’s knowledge. Attorney Broadbear responded, through his attorney, by letter of July 1993, denying liability. On October 22, 1993, appellee Oxendine wrote a letter addressed to VASA accepting the purported $495,000 settlement offer of October 7, 1992. In December 1993, appellee Oxendine drafted a complaint against VASA to enforce compliance by VASA with the settlement agreement; this complaint was never filed. In January 1994, appellant retained attorney Phears to investigate the VASA settlement offer; Phears provided a VASA professional liability analyst with a copy of the purported settlement offer, the demand letter of appellee Oxendine to VASA, and a copy of a VASA policy alleged to be the policy insuring attorney Broadbear. Thereafter, the VASA analyst sent a letter to appellee Oxendine informing her that he had been contacted by attorney Phears on behalf of Allen, and that Phears recently had been retained by Allen to investigate the offer of settlement from VASA. The analyst further advised that investigation revealed that VASA had never authorized the purported $495,000 settlement, VASA does not insure attorney Broadbear (Broadbear is insured by The Home Insurance Company), John Brazell has not been and is not employed by VASA, and that a search of VASA files reveals that letter of appellee Oxendine, purporting to accept the settlement offer of $495,000, has never been received. At least during the period of February 1993 to February 1994, appellee Oxendine was insured by VASA. Allen denies having received by mail the numerous letters from appellee Oxendine pertaining to the signing of a fee contract or any letters regarding the validity of the VASA settlement offer letter. Held:

1. Regarding the fraud claim, Allen testified in his deposition that, other than waiting for the settlement check and making plans how he “might spend it,” he never entered into any contracts or other legal commitments in reliance on the receipt of the VASA settlement offer. The tort of actual fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. Sears Mortgage Corp. v. Leeds Bldg. Products, 219 Ga. App. 349, 351 (3) (464 SE2d 907). The record contains no admissible evidence establishing damage to the appellant within the meaning of Sears, supra, arising from the false misrepresentation allegedly made by appellee Oxendine. Thus, appellees demonstrated by the record that there exists no evidence sufficient to create a jury issue as to at least one of the essential elements of appellant’s fraud claim. For an action for fraud to survive a summary judgment motion, there must be some evidence from which a jury could find each element of the tort. Id. Appellees carried their burden under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) by showing by the record that there existed an absence of evidence to support the non-movant’s case. At this point appellant could no longer rest on his pleadings or on generalized allegations but was required to point to specific evidence giving rise to a triable issue. Id.; see Precise v. City of Rossville, 261 Ga. 210, 212 (3) (403 SE2d 47). Appellant failed to carry this burden. Appellant’s contentions on appeal regarding the existence of a triable issue of fraud are without merit; the trial court did not err in granting summary judgment on the fraud claim.

2. In a legal malpractice action, the client carries the burden of establishing three elements: (a) employment of the defendant attorney; (b) failure of the attorney to exercise ordinary care, skill and diligence; and (c) that such negligence was the proximate cause of damage to the plaintiff. Mauldin v. Weinstock, 201 Ga. App. 514, 518 (4) (411 SE2d 370). “[I]n a suit for legal malpractice, proof that the attorney’s negligence proximately caused the client’s harm is necessary for recovery.” Whitehead v. Cuffie, 185 Ga. App. 351, 352 (364 SE2d 87). Where the cause(s) of action underlying the malpractice claim remain pending, plaintiff cannot prove the required element of damage because the action may terminate favorably for the client. Id. Accordingly, in this case, appellant cannot maintain any viable malpractice claim based on assertions of appellees’ professional negligence arising from the conduct of suits still pending judicial resolution. Additionally, “ £[a] client suing his attorney for malpractice not only must prove that his claim was valid and would have resulted in a judgment in his favor, but also that said judgment would have been collectible in some amount, for therein lies the measure of his damages.’ ” Perry v. Ossick, 220 Ga. App. 26, 29 (467 SE2d 604). The trial court found “no evidence in the record which shows that the [appellant] would have obtained judgments in its favor [as to] any of its claims.” Based on our independent review of the record, we find the trial court did not err in its finding; the record does not contain a scintilla of evidence to show that appellant would have obtained a favorable judgment as to any of its claims. For these reasons, the trial court did not err in granting summary judgment in favor of appellees. Further, based on appellees’ professional recommendation, appellant consented to the trial strategy of pursuing the malpractice claim and to forego actively pursuing the four underlying contracts claims. “ ‘There can be no liability for acts and omissions by an attorney in the conduct of litigation which are based on an honest exercise of professional judgment.’ ” Hudson v. Windholz, 202 Ga. App. 882, 886 (3) (416 SE2d 120). This Court will not hold an attorney liable for malpractice based merely on the attorney’s choice of trial tactics or strategy or the good faith exercise of professional judgment. See Hudson.

Decided February 13, 1997

Reconsideration denied March 4, 1997

Richardson & Chenggis, George G. Chenggis, for appellant.

Hawkins & Parnell, Christine L. Mast, H. Lane Young II, for appellees.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


author: Blackburn, Judge.

text:
    A97A0162.
    TILLERY v. THE STATE.
    (483 SE2d 333)
   Blackburn, Judge.

Hoyt Nathaniel Tillery appeals his convictions of first degree homicide by vehicle, driving under the influence of alcohol, reckless driving, second degree homicide by vehicle, driving on the wrong side of the road, improper passing, and driving too fast for conditions. On appeal, Tillery contends the trial court erred in failing to grant a directed verdict on the homicide by vehicle charges and in failing to exclude certain testimony and evidence. We affirm Tillery’s convictions because the evidence was sufficient to support the verdict, and the trial court did not err in allowing consideration of the objected-to testimony and evidence.

1. In his first enumeration of error, Tillery contends the State failed to establish the victim’s cause of death and therefore he was entitled to a directed verdict.

“A motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. Further, the test established in Jackson v. Virginia, [443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)], is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” (Citations and punctuation omitted.) Reddin v. State, 223 Ga. App. 148, 150 (2) (476 SE2d 882) (1996).

In order to prove a violation of OCGA § 40-6-393, homicide by vehicle, as alleged in the indictment, the State was required to prove that Tillery’s actions caused the death of Mary Diane Collins. See Brown v. State, 152 Ga. App. 273, 274 (262 SE2d 497) (1979). The evidence is uncontroverted that Tillery was driving his vehicle at a high rate of speed in Collins’ lane of traffic when the nearly head-on collision occurred. Furthermore, Dr. Randall Buss, the cardiothoracic surgeon who was operating on Collins when she died, testified that there was no doubt in his mind that Collins’ death was directly attributed to the blunt trauma received in the wreck. He further testified that his examination of Collins indicated that there was no sign of a pre-existing condition that could have caused her aorta to rupture on its own, independent of the motor vehicle accident. This evidence, viewed in the light most favorable to the verdict, is sufficient to allow a rational trier of fact to find Tillery guilty beyond a reasonable doubt of homicide by vehicle. See Jackson v. Virginia, supra.

Tillery’s argument that Dr. Buss is not a pathologist is without merit. A pathologist’s testimony is not required to determine cause of death. See Beaman v. State, 161 Ga. App. 129 (291 SE2d 244) (1982) (jury could determine cause of death after hearing description of wounds from an emergency medical technician and no evidence of any other cause sufficient to produce death was presented).

2. In two enumerations of error, Tillery contends the trial court erred in allowing the introduction of a photograph of Collins when she was alive. At trial, Tillery objected to Michael Peale’s testimony to introduce a photograph of his aunt, Collins. Tillery also objected to the introduction of the photograph, arguing that it had no relevance and was being used to inflame the jury. This issue has been decided adversely to Tillery’s position in Norton v. State, 263 Ga. 448, 450 (6) (435 SE2d 30) (1993) (“[a]dmission of a photograph of the victim while in life was not error. Davis v. State, 255 Ga. 598 (10) (340 SE2d 869) (1986)”). Therefore, we find that this enumeration is without merit.

Decided February 19, 1997

Reconsideration denied March 4, 1997.

Farless & Newton, Floyd H. Farless, for appellant.

Stephen F. Lanier, District Attorney, Charles S. Cox, Assistant District Attorney, for appellee.

3. In his final enumeration of error, Tillery contends the trial court erred in failing to exclude a certified copy of the death certificate over his hearsay objection.

“A death certificate serves as prima facie evidence only of (1) the death itself and (2) the immediate agency of the death. Other conclusions, such as those regarding the events leading up to the death or whether the cause of death was intentional or accidental, are not admissible.” (Citation and punctuation omitted.) Swanson v. State, 216 Ga. App. 1, 2 (453 SE2d 78) (1995). However, in the present case the information contained in the death certificate is merely cumulative of testimony given and is, therefore, harmless. See Foster v. State, 259 Ga. 206, 207 (378 SE2d 681) (1989) (conclusions in death certificate supported by other evidence were cumulative and harmless). Therefore, we cannot say that the trial court committed reversible error in allowing a certified copy of the death certificate into evidence.

Judgment affirmed.

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


text:
    A97A0260.
    SUMNER v. DEPARTMENT OF HUMAN RESOURCES.
    (483 SE2d 602)
   Birdsong, Presiding Judge.

Appellant/plaintiff Geneva Sumner, individually and as administratrix of the estate of her son, appeals the order of the superior court granting appellee/defendant Georgia Department of Human Resources’ (DHR) motion to dismiss. The trial court converted the motion to a motion for summary judgment, stating it had considered matters outside the pleadings.

This is a suit for damages brought against DHR. Appellant’s four-year-old son, Donovan Clark, was killed by a foster child placed with appellant by DHR. Appellant contends that DHR failed to disclose that the foster child was disposed toward violent conduct, which it is claimed was documented in the records in DHR’s possession. Appellant in the alternative contends her claims arise from breach of a written contract, specifically a breach of appellee’s duty to disclose under the contract. Appellee seeks dismissal on the ground inter alia that the claims of appellant are barred by sovereign immunity. Appellant further contends that DHR’s failure to make her aware of the foster child’s disposition toward violent conduct constitutes a fraud, and that there is no exception in the tort waiver provisions of the Georgia Tort Claims Act based on fraud. Held:

1. At summary judgment a movant/defendant must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. In other words summary judgment is appropriate when the court, viewing all the facts and reasonable inferences flowing therefrom in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Further, in ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). However, the standard for disposing of a motion to dismiss has a substantially different focus. Under the Civil Practice Act, a motion to dismiss with prejudice, such as was filed in this case, should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of the claim. See Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 65 (3) (424 SE2d 632); C. F. I. Constr. Co. v. Bd. of Regents &c. of Ga., 145 Ga. App. 471, 475 (4) (243 SE2d 700).

2. The trial court in its order expressly stated: “This case came before the court on defendant’s motion to dismiss, which the court procedurally treated as a motion for summary judgment since matters of record outside the pleadings were considered.” (Emphasis supplied.) Thereafter the court granted appellee’s motion. Appellant contends that reversible error occurred because the trial court failed to provide it with notice and opportunity to present evidence on the converted motion for summary judgment. We agree.

OCGA § 9-11-12 (b) pertinently provides: “If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.” In Aycock v. Calk, 222 Ga. App. 763, 764 (476 SE2d 274) (whole court), this Court held: “It is clear that in dismissing the [appellant’s] complaint, the trial court considered matters outside the pleadings, thereby converting the order into one for summary judgment. [Cits.] ‘Although our law concerning motions for summary judgment allows a trial court to grant, sua sponte, a summary judgment, a trial court’s authority to do so is not unlimited. The grant of summary judgment must be proper in all other respects. (Cit.) “This means that in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment. (Cits.)” (Cit.)’ ” The court further held: “ ‘ “The crucial point is to insure that the party against whom summary judgment is sought has had a full and final opportunity to meet and attempt to controvert the assertions against him.” ’ . . . While the record as it stands may support the trial judge’s ruling, it also shows that the [appellant was] not notified that the trial court intended to rule upon the merits of [her] claim and that [she was] not provided a full and final opportunity to respond to the court’s sua sponte review. The notice requirement is clear, simple to meet, and necessary. We should not muddy the waters by assuming a party had notice where the record shows none was given. We are thus required to remand the cause so that the [appellant] may be given such fair notice and an opportunity to respond.” (Emphasis in original and supplied.) Id. at 764; see Howell Mill/Collier Assoc. v. Pennypacker’s, Inc., 194 Ga. App. 169 (1) (390 SE2d 257).

Appellee, however, contends that the trial court did not consider any evidentiary matters outside the pleadings, and that any error in treating the motion to dismiss as a motion for summary judgment was harmless. We cannot conclude from our examination of the record what matters outside the pleadings the trial court may or may not have considered. Appellee has failed to establish with the requisite degree of certainty that the trial court did not consider some matter outside the pleadings; in the face of the trial court’s express statement that it did consider such matters, we decline to conclude the trial court erred in stating such fact. Thus the trial court was required, by statute, to provide appellant with notice and opportunity in accordance with Aycock, supra.

Assuming the trial court had erred in converting the motion to dismiss into a motion for summary judgment, the trial court then would have erroneously applied a summary judgment standard rather than a motion to dismiss standard in the resolution of the motion. While it is a general rule that a grant of summary judgment must be affirmed if it is right for any reason (Newsome v. Dept. of Human Resources, 199 Ga. App. 419, 423 (3) (405 SE2d 61)), it is an equally well-established exception that a right-for-any-reason rule cannot be applied where, as in this case, it is apparent that the trial court rested its judgment upon an erroneous legal theory; in such instances the trial court commits reversible error. Huff v. Valentine, 217 Ga. App. 310, 311 (1) (457 SE2d 249), and cases cited therein; accord Gaster Lumber Co. v. Browning, 219 Ga. App. 435, 437 (1) (465 SE2d 524). Christensen v. State of Ga., 219 Ga. App. 10, 11 (4) (464 SE2d 14) is distinguishable; unlike Christensen, appellant in this case submitted no evidence in support of her position and has consistently asserted in her appellate briefs that she would, if allowed, submit evidence in support of her claim.

Decided February 18, 1997

Reconsideration denied March 4, 1997.

Blackwood, Matthews & Steel, James B. Matthews III, John B. Briggs, Blasingame, Burch, Garrard, Bryant & Ashley, J. Ralph Beaird, Kathleen M. Timmons, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, C. Latain Kell, Senior Assistant Attorney General, Patricia Guilday, Assistant Attorney General, for appellee.

The judgment in this case is hereby vacated and the case remanded with direction that the trial court reconsider the motion to dismiss. If the trial court again determines that matters outside the pleadings are to be considered and that the motion to dismiss is to be converted as a motion for summary judgment, appellant shall then be given the requisite statutory notice and opportunity to present evidence prior to any ruling being made as to the disposition of said motion. In view of our holding, appellant’s other contentions are not ripe for adjudication.

Judgment vacated and case remanded with direction.

Ruffin and Eldridge, JJ., concur.

On Motion for Reconsideration.

Appellant’s motion for reconsideration is denied. By our holding, we have returned this issue to the trial court to consider it anew. Both sides shall be given any required notices and the opportunity to be heard regarding their respective positions as to the issue under consideration. In view of the posture of the record before us, we find this disposition necessary in order to protect or effectuate any judgments hereafter resulting in this case. Ga. Const, of 1983, Art. VI, Sec. I, Par. IV.


author: Pope, Presiding Judge.

text:
    A95A2676.
    BAXTER et al. v. COHEN.
    (484 SE2d 90)
    Decided March 4, 1997.

      Alan Z. Eisenstein, Robert M. Goldberg, for appellants.

      Sullivan, Hall, Booth & Smith, Henry D. Green, Jr., David V. Johnson, for appellee.
   Pope, Presiding Judge.

Our judgment in this case, Baxter v. Cohen, 220 Ga. App. 893 (470 SE2d 450) (1996), has been reversed by the Supreme Court on certiorari. Cohen v. Baxter, 267 Ga. 422 (479 SE2d 746) (1997). Accordingly, our judgment is vacated, and the judgment of the Supreme Court is made the judgment of this Court. The judgment of the trial court is affirmed.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.


author: Johnson, Judge.

text:
    A96A1195.
    BENNETT v. MOODY.
    (483 SE2d 350)
   Johnson, Judge.

Walter Bennett filed a petition to find his neighbor, Ellen Moody, in contempt for failure to comply with the terms of a 1987 court order which required her to remove a single-wide mobile home from her property. He also sought damages and equitable relief with regard to other alleged violations of various restrictive covenants contained in her deed and Oglethorpe County’s subdivisión regulations. After a hearing, the trial court entered an order in favor of Moody, and Bennett appeals.

The trial court’s order contains the following findings of fact. Moody owns 12.15 acres of land in rural Oglethorpe County. The deed by which she took title to the property contains three restrictive covenants. The first restriction regards setbacks and is not an issue in this case; the second covenant provides that no single-wide mobile home shall be allowed temporarily or permanently on the property; and the third covenant prohibits subdivision of a tract of less than ten acres but allows subdivision of any tract of land of ten or more acres, provided each resulting lot contains at least five acres. The trial court found no evidence that any single-wide mobile home was on Moody’s property. The court also found that although there are three separate structures on the property (two double-wide mobile homes which are attached and two double-wide mobile homes which stand alone) there was no evidence of any subdivision of the property, either by conveyance to a third party or by recordation of a new plat.

The court concluded as a matter of law that the evidence presented did not establish that the county commissioners had adopted a Comprehensive Land Use and Development Plan either at the time two additional dwellings were placed on Moody’s property or as of the date of the hearing in this case. The court found that the subdivision regulations, by their own terms, did not take effect in the absence of the adoption of the comprehensive plan and, therefore, the subdivision regulations were not in effect as of the date of the hearing. Oglethorpe County has no zoning ordinance or other regulation limiting the use of Moody’s property. The trial court also concluded that Moody’s use of her property did not violate the covenants contained in her deed.

In his pro se appeal, Bennett sets out six enumerations of error which collectively assert that the trial court erred in rejecting his position that Moody’s use of her property violated the subdivision regulations of Oglethorpe County. The enumerations fail to comply with Court of Appeals Rule 27 (c) (3) (i) in that the alleged errors are not supported by specific reference to the record or transcript. Further, the enumerations do not point to distinct errors of law and do not set forth cogent argument and citation of authorities. See OCGA § 5-6-40; Court of Appeals Rule 27 (1), (3). “Our requirements as to the form of appellate briefs were created, not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court. While our goal is to directly address the specific issues raised on appeal, where, as in the case sub judice, the contentions presented are argued generally, we must necessarily answer these issues in a similar fashion. [Cit.]” Aldalassi v. Drummond, 223 Ga. App. 192 (1) (477 SE2d 372) (1996). In deference to Bennett’s status as a pro se appellant, we will consider his contentions.

Bennett argues that the subdivision regulations were in effect, if not at the time Moody moved a double-wide trailer on to her property in 1993, at least at the time of the hearing because the county had adopted a comprehensive land use and development plan. Bennett has attached a photocopy of a May 4, 1995 newspaper article which he asserts establishes that such a plan had been adopted by the county. This Court has often held that “[e]xhibits attached to an appellate brief but not appearing in the record transmitted by the trial court cannot be considered by this court and afford no basis for reversal. [Cit.]” Taylor v. Bentley, 166 Ga. App. 887 (2) (305 SE2d 617) (1983). Therefore, we cannot consider the newspaper clipping. But even if evidence had been presented at the hearing which would support Bennett’s position regarding the proper adoption of the Comprehensive Land Use and Development Plan, however, we agree with the trial court that the subdivision regulations would not apply because there is no evidence that Moody subdivided her property.

Decided March 4, 1997.

Walter M. Bennett, pro se.

Kardos, Warnes & McElwee, James C. Warnes II, for appellee.

Neither did Moody’s use of her property violate the restrictive covenants contained in her deed. The covenant which prohibits subdividing into lots of less than five acres is inapplicable here because, as we have noted, there is no evidence that the property was subdivided. And while Moody’s deed could have contained a restrictive covenant prohibiting the erection of any structures, other than a single dwelling on her property, it did not. “Covenants running with the land must be strictly construed and clearly established.” Columbia Valley Recreation Center v. Massie, 223 Ga. 151, 152 (1) (154 SE2d 215) (1967). This principle mirrors the general rule that “the owner of land in fee has the right to use the property for any lawful purpose, and any claim that there are restrictions upon such use must be clearly established.” (Citations and punctuation omitted.) Reid v. Standard Oil Co. &c., 107 Ga. App. 497, 499 (1) (130 SE2d 777) (1963). The covenants in Moody’s deed did not clearly establish that she could not place additional residences on her property,' and the trial court did not err in so finding.

Judgment affirmed.

McMurray, P. J, and Senior Appellate Judge Harold R. Banke concur.

       If Bennett is arguing that Moody’s use of her property constitutes a new subdivision, it appears that the subdivision regulations allow, in certain circumstances, the division of a tract of land into lots or parcels for use by the owner’s immediate family. See Art. Ill, Sec. 3.1, Par. 43 (5).


text:
    A96A1754.
    COWDELL v. DOE.
    (483 SE2d 347)
   Beasley, Judge.

Cowdell initiated a proceeding to adopt his wife’s daughter, but the trial court ruled that the biological father was “known” and thus had to be notified pursuant to OCGA § 19-8-12 (a). This halted the adoption, and Cowdell appealed. An interlocutory appeal of the court’s order was permitted.

The question is whether the biological father of the child sought to be adopted by the stepparent petitioner is “known” or “unknown” in the context of OCGA § 19-8-12. It is a matter of statutory construction. If he is “known,” as the trial court ruled, he must either surrender his parental rights or be properly notified that the legal mother has consented to her spouse’s adoption of the child. OCGA § 19-8-12 (a). If, on the other hand, the identity or location of the biological father who is not the legal father of the child is “not known” and he has not executed a surrender, then other very particularized steps must be taken by the court to protect his rights before they are terminated and adoption is permitted. OCGA § 19-8-12 (b).

The father in this case, Doe, is not the “legal father” as defined in OCGA § 19-8-1 (6), but is the “biological father” as defined in OCGA § 19-8-1 (1). The mother is the “legal mother,” as defined in OCGA § 19-8-1 (7), is entitled to the little girl’s custody, and “may exercise all parental power over the child.” OCGA § 19-7-25. Her spouse, Cowdell, wishes to adopt her daughter and so provide the child with a legal father. He filed a petition for stepparent adoption pursuant to OCGA § 19-8-6 (a) (1), but neither paragraph (1) nor paragraph (2) of subsection (a) fit the circumstances because the child does not have a “legal father and legal mother” and there is no contention or evidence that the biological father has died. The legislature intended to permit stepparent adoption pursuant to this section, as shown in both subsections (g) and (j) of OCGA § 19-8-6.

Subsection (g), upon which petitioner relies, states: “Whenever the legal mother . . . consents to the adoption of her child by her spouse pursuant to this Code section, she shall execute an affidavit meeting the requirements of subsection (h) of Code Section 19-8-26.” Subsection (j) states: “The parental consent by the spouse of a stepparent seeking to adopt a child of that spouse and required by subsection (a) of this Code section shall be as provided in subsection (1) of Code Section 19-8-26.” Subsection (j) would not apply here, as the child does not have a legal father. Nevertheless, the mother provided the parental consent of the spouse to stepparent adoption in the form required. Petitioner Cowdell also filed, as required by OCGA § 19-8-13 (a) (4) (C), the affidavit described in OCGA § 19-8-26 (h), which petitioner’s spouse, the child’s legal mother, completed and signed.

The information required of the mother does not include the name and address of the biological father. Pursuánt to OCGA § 19-8-26 (h) (1) (F), she has “the right not to disclose the name and address of the biological father of her child should she so desire.” She must, however, give under oath particularized information with respect to whether the father “has lived with the child, contributed to its support, provided for the mother’s support (including medical care) during her pregnancy or during her hospitalization for the birth of the child, or made an attempt to legitimate the child,” and set forth all sources of financial assistance. OCGA § 19-8-26 (h) (1) (G) and (H). At the hearing on Cowdell’s motion to terminate the father’s rights, the mother acknowledged that she knew the identity but stood her ground and stated further that the father was unaware of the child because she never told him.

The law gives to the mother this right and commensurate obligation in all instances of adoption covered by the law, whether through the Department of Human Resources or any child-placing agency as provided in OCGA § 19-8-4, whether by a third party who is neither the stepparent nor relative of the child as provided in OCGA § 19-8-5, whether by the spouse of a parent as provided in OCGA § 19-8-6 (the section invoked by Cowdell), or whether by a relative as provided in OCGA § 19-8-7. This universal usage for which the law prescribes the affidavit specified in OCGA § 19-8-26 (h) carries with it the statutorily created mother’s right.

The affidavit figures prominently in the procedure established to protect the parental rights of the biological father who is not the legal father, when the identity or location of the father is not known and he has not executed a surrender of parental rights. The court “shall be authorized to consider” that affidavit to determine what further inquiry must be required or what notice must be given before the biological father’s rights are terminated. OCGA § 19-8-12 (b) (3). In part, the court must determine whether, in effect, the biological father has abandoned the child or instead has established a familial bond with the child. The sworn information required of the mother in OCGA § 19-8-26 (h) (1) (G) and (H) supplies the factors for the court to consider in making this determination. If the father has performed any of the specified acts, the court must decide if his conduct was sufficient to establish a familial bond, and then the court must consider whether to require petitioner to make further efforts at inquiry and notice to him. The procedure is detailed and explicit and is established to assure that the biological father’s parental rights are not terminated without due process of law.

Applying the rules of statutory construction, it is ineluctably certain that when the mother exercises her right, the biological father is “not known” for purposes of OCGA § 19-8-12 (b). Were it not so, the right which is expressly given in OCGA § 19-8-26 (h) (1) (F) and carried over to OCGA § 19-8-12 (b) (3) would be meaningless. It would have no effect other than to preclude adoption altogether, an intent opposite that demonstrated by the legislative scheme.

We have upheld the efficacy of that right in Northcraft v. Doe, 192 Ga. App. 666 (385 SE2d 756) (1989), where the same provisions of the predecessor statute were involved. As relevant, former OCGA § 19-8-4 (c) (5) (F) is, as of 1990, OCGA § 19-8-26 (h) (1) (F). Ga. L. 1990, p. 1572, § 5. The only difference, with respect to our current inquiry, is that the affidavit form to be signed by the mother contains the express alternative statement that the biological father is “Known to me but I expressly decline to identify him or provide his address because_.” This requirement of a stated reason for the exercise of the right was not in the statutory affidavit form before the 1990 amendment, but the nondisclosure right of the mother existed nevertheless. The 1990 amendment also assured that she knew she had that right.

Former OCGA § 19-8-7 (b) (2), which was in effect when North-craft was decided, is now OCGA § 19-8-12 (b) (3). It was changed by the same 1990 Act to provide a more explicit two-step procedure for terminating the biological father’s rights. The requirement that petitioner show that “reasonable efforts have been made to identify and locate the father,” referred to in Northcraft, was retained for instances where the biological father’s conduct in certain particulars has established a modicum of familial bond. Then, as now, the legal mother could exercise her right of nondisclosure in adoptions by third parties, spouses, or relatives. Former OCGA §§ 19-8-3 (a) (1), (2), (3), (4) and (5); 19-8-7 (b) (1) and (2).

In Northcraft, too, the legal mother knew the identity and whereabouts of the putative biological father. Her refusal to disclose this information did not prevent adoption but instead required the careful statutory procedure for assurance that the biological father’s rights be ascertained and protected. As the court held in that case, so here, exercise of the mother’s right does not preclude adoption because that “cannot be in the child’s best interest.” Id. And that, after all, is paramount.

The problem is that, with respect to stepparent adoptions under OCGA § 19-8-6, the only instances for which the “unknown biological father” procedure is provided in paragraph (3) of OCGA § 19-8-12 (b) are those coming under OCGA § 19-8-6 (a) (2), which are the “only one parent still living” stepparent adoptions. See paragraph (2) of OCGA § 19-8-12 (b). We face the absence of a paragraph (3) in OCGA § 19-8-6 (a) which would cover stepparent adoption by the spouse of a mother of a child whose father is biological only and not legal. That is what confronts Cowdell.

The dilemma is that the legislature left a gap in the stepparent adoption section (OCGA § 19-8-6) by omitting to provide for adoption by the husband of the legal mother of a child whose biological but not legal father is living. No provision is made for termination of his rights through the procedure specified in OCGA § 19-8-12 (b). Under the Code’s adoption procedures in force prior to the amending act of 1990 (Ga. L. 1990, p. 1572), that may have been possible pursuant to then-current OCGA § 19-8-3 (a) (2) by way of termination of the biological father’s rights in accordance with then-current OCGA § 19-8-7 (b).

The court erred in concluding that the father was “known.” But Cowdell’s petition cannot be granted until the legislature fills in the void in the law.

Decided March 4, 1997.

Saveli & Williams, John M. Williams, William E. Turnipseed, for appellant.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A96A1963.
    TAM v. THE STATE.
    (483 SE2d 142)
   Pope, Presiding Judge.

Defendant was convicted by a jury of driving under the influence to the extent it was less safe for him to drive (OCGA § 40-6-391 (a) (1)) and following too closely (OCGA § 40-6-49). On appeal, he challenges the sufficiency of the evidence to support both convictions, the trial court’s admission of similar offense evidence, and the trial court’s admission of evidence relating to his refusal to take a breath test. Although the properly admitted evidence is sufficient to support the convictions, the trial court failed to make the necessary findings, on the record, before admitting the evidence of similar offenses. Accordingly, we reverse and remand for a new trial.

Officer Anthony Menichini stopped defendant for following too closely. Officer Menichini testified that defendant was driving at approximately 45 mph, and was within ten feet of the vehicle in front of him. And Officer Lou Gregoire, a second patrolman who saw defendant’s car from the opposite direction, said defendant was driving so closely behind the vehicle in front of him that Gregoire could not even see the headlights on defendant’s car.

When Officer Menichini stopped defendant, he noticed that defendant smelled of alcohol and had bloodshot eyes. He therefore asked defendant to perform several field sobriety tests. Defendant took the tests, and performed poorly. Officer Gregoire, who viewed defendant taking the tests from a distance, said defendant was very unsteady on his feet. Based on his observations and his experience, Officer Menichini considered defendant to be a less safe driver and arrested him for driving under the influence.

After he was read his implied consent rights, defendant agreed to take a breath test. When he got to the station, however, he put his mouth on the mouthpiece but would not blow. The operator of the Intoxilyzer 5000 breath test machine therefore was unable to get a sufficient air sample to get a reading.

1. Viewed in a light to support the verdict, this evidence is sufficient to enable rational jurors to find defendant guilty of driving under the influence and following too closely beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant argues that the trial court erred in allowing evidence of similar offenses without meeting the requirements of Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). We agree. Under Williams, the trial court must hold a pre-trial hearing pursuant to Uniform Superior Court Rule 31.3 (B), at which the State must show (1) that the evidence is being presented for an appropriate purpose; (2) that the accused actually committed the similar offense; and (3) that the similar offense and the charged offense are sufficiently connected or similar that proof of the former tends to prove the latter. Id. The trial court must make a determination that each of these three showings has been made, and “[t]his determination by the trial court must be made a part of the record.” (Emphasis supplied.) Id. at 642, n. 3.

The State suggests that defendant, as the appellant, has the burden of ensuring we have a transcript of the USCR 31.3 (B) hearing, and that since there is no transcript of the hearing in the record, we must assume that the trial court made the required determination. As a general rule, the complaining party on appeal does have the burden of ensuring we have everything in the record we need to evaluate an alleged error; otherwise, we will presume the trial court acted properly. See Vaughan v. Buice, 253 Ga. 540 (322 SE2d 282) (1984). And we have applied this general rule in the context of USCR 31.3 (B) hearings under some circumstances. See Miller v. State, 219 Ga. App. 284 (1) (464 SE2d 860) (1995); Hightower v. State, 210 Ga. App. 386 (1) (436 SE2d 28) (1993). In Miller, however, the defendant actually had a transcript of the hearing but failed to make it a part of the record on appeal. 219 Ga. App. at 284. And in Hightower, the defendant did not challenge the trial court’s compliance with the procedural requirements of Williams. Rather, he argued that the trial court’s determination that the State had met its burden (which was in the written order, and thus in the record on appeal) was not supported by the State’s showings at the hearing (a transcript of which was not in the record on appeal). In this situation, we held that the defendant’s failure to include a transcript of the hearing was fatal to his argument. Hightower, 210 Ga. App. at 387. In neither of these cases, both of which involved felonies being tried in Superior Court, was there any suggestion that the hearing was not taken down or recorded so that a transcript was not available. In this case, on the other hand, the USCR 31.3 (B) hearing was not recorded because the court involved does not record pre-trial hearings.

Because the admission of evidence of similar offenses is the exception rather than the rule, the State has the burden of ensuring that the requirements of Williams are met before such evidence may be admitted — and this includes ensuring that the trial court’s determination that the State has made the necessary showings is on the record. Cf. Riddle v. State, 208 Ga. App. 8, 11 (1) (b) (430 SE2d 153) (1993) (“the burden of conducting the requisite hearing before similar transaction evidence can be admitted at trial is placed squarely with the State and the trial court; defendant bears no burden to initiate this procedure”). In this case, the hearing on the similar offenses was not taken down or recorded in any manner. Moreover, the written order allowing the State to present its evidence was a form order which did not reflect a determination that the three affirmative showings had been made. Under these circumstances, we must conclude that the similar offense evidence was improperly admitted. And as the properly admitted evidence in this case was sufficient but not overwhelming, we cannot conclude that this error was harmless. See Ragan v. State, 264 Ga. 190, 192 (3) (442 SE2d 750) (1994). Accordingly, defendant’s conviction must be reversed.

3. Defendant contends that testimony about his refusal to blow into the Intoxilyzer should not have been admitted because (1) the operator of the breath test machine failed to request two air samples, and (2) the State failed to show that the machine the operator used was in good working order on the date of his arrest (January 22, 1995).

(a) Under OCGA § 40-6-392 (a) (1) (B), the State must request two sequential breath samples for testing, or the results are not admissible. Defendant argues here that because the tester did not ask for a second sample, testimony regarding defendant’s refusal to provide an adequate first sample should not have been allowed. Defendant failed to raise this argument in the trial court, however. At first blush, it seems doubtful that the two-sample requirement would apply when a defendant refuses to provide an adequate first sample. In any case, we decline defendant’s request to address the issue without the benefit of full argument and a decision below.

(b) Under OCGA § 40-6-392 (a) (1) (A), the State must show that the machine “was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order.” The easiest way to do this for breath-testing machines, without calling the inspector to testify, is set forth in OCGA § 40-6-392 (f): each time the machine is inspected, the inspector prepares a certificate of inspection, signed under oath, which states that he has inspected the machine in question and has found that all the electronic and operating components prescribed by the manufacturer are properly attached and in good working order.

In this case, the State introduced a certificate of inspection stating that the machine used on defendant on January 22, 1995, had passed inspection on January 4, 1995. But the inspector did not sign the certificate under oath until June 12, 1995; and defendant argues that because of this delay, the certificate — the only evidence that the machine was in proper working order on January 22,1995 — was inadmissible. While it is certainly best for the inspector to complete and sign the certificate immediately after the inspection, the statute does not require such immediacy. We therefore conclude that the delay in signing the certificate under oath went to its weight rather than its admissibility.

Decided March 4, 1997.

Dudley W. Garrett, Jr., for appellant.

Gerald N. Blaney, Jr., Solicitor, Jeffrey P. Kwiatkowski, Richard E. Thomas, Assistant Solicitors, for appellee.

Judgment reversed.

Andrews, C. J., and Smith, J., concur.


text:
    A96A2117.
    A96A2118.
    BROCK v. DOUGLAS KOHOUTEK, L.P. HIGHLAND GROVE, L.P. et al. v. DOUGLAS KOHOUTEK, L.P.
    (483 SE2d 342)
   Johnson, Judge.

Douglas Kohoutek, L.P. sued Highland Grove, L.P, three corporations that were partners in Highland Grove, and the presidents of those corporations. Kohoutek contended the Highland Grove partners had twice improperly amended their partnership agreement, resulting in Kohoutek being deprived of profits it would otherwise have received when Highland Grove sold its assets.

Kohoutek was not itself a Highland Grove partner, but had a security interest in the economic rights flowing to defendant Grove Development, Inc. (“GDI”) from GDI’s partnership interest in Highland Grove. GDI was a wholly owned subsidiary of Grove Properties, Inc., whose president was defendant Milton Brock. In Case No. A96A2118, all the defendants except Brock appeal from the jury verdict in Kohoutek’s favor. Brock, who was pro se at trial, retained counsel to handle his motion for new trial and separate appeal, Case No. A96A2117. In both appeals, we affirm.

A brief overview of the facts, the parties’ contentions, and the jury’s findings will be helpful before we reach specific enumerations of error. Highland Grove was engaged in the development and construction of an apartment complex in Gwinnett County. Each challenged amendment to the Highland Grove partnership agreement reduced GDI’s percentage of ownership interest in Highland Grove. Kohoutek claimed the reductions diminished the value of its collateral and were not commercially reasonable or made in good faith, and were therefore prohibited by both its security agreement and OCGA § 11-9-318 (2). This statute provides that when the right to payment under an assigned contract has not been fully earned by performance, “any modification of or substitution for the contract made in good faith and in accordance with reasonable commercial standards is effective against an assignee [here, Kohoutek] unless the account debtor [Highland Grove] has otherwise agreed.”

The defendants maintained the amendments saved Highland Grove from insolvency, and that without them Kohoutek’s interest in Highland Grove, in any percentage, would have been worthless. They also claimed to have acted in good faith and with commercial reasonableness.

All defendants except Brock made oral motions for directed verdict, which the trial court orally granted as to a fraud cause of action, but otherwise denied. The case was then submitted to the jury on a verdict form to which no party objected. The jury found that: (1) The security agreement prohibited both amendments. (2) GDI and Brock did not act in good faith and with commercial reasonableness in entering into the first amendment, but the other defendants did. (3) None of the defendants acted in good faith and with commercial reasonableness in entering into the second amendment. (4) Kohoutek should be awarded actual damages of $575,000 and no punitive damages.

The court entered judgment against all defendants jointly and severally for $575,000. No questions were submitted to the jury before they were discharged. All defendants later filed written motions for j.n.o.v. or, in the alternative, new trial, which were denied.

1. All defendants contend the trial court erred in denying their motions for directed verdict and j.n.o.v. because Kohoutek’s security agreement allowed the amendments to the partnership agreement. A motion for directed verdict should be granted only if there are no conflicts in the evidence on any material issue and the evidence demands a particular verdict. Danfair Properties v. Bowen, 222 Ga. App. 425, 426 (474 SE2d 295) (1996); see OCGA § 9-11-50 (a). The standard for j.n.o.v. is the same, and appellate review of a trial court’s ruling on a motion for j.n.o.v. or directed verdict is under the “any evidence” standard. See Rockdale Body Shop v. Thompson, 222 Ga. App. 821, 822 (1) (476 SE2d 22) (1996); see Danfair Properties, supra.

The critical language in the security agreement prohibited partnership amendments that would “materially diminish the value of the Collateral.” The Highland Grove appellants concede the challenged amendments reduced GDI’s percentage of ownership. However, they contend the amendments allowed new investors with cash and new collateral into the partnership, which allowed Highland Grove to restructure its debt on favorable terms and prevent foreclosure of its principal asset. The Highland Grove appellants claim the amendments therefore increased the dollar value of GDI’s share, which otherwise would have been worthless, and so did not violate the security agreement.

Putting aside for the moment whether the contested language in the security agreement prohibited a percentage reduction in GDI’s ownership interest, it is salient to note that no one objected to the verdict form. The form merely asked the jury whether the security agreement prohibited the first and second amendments, and said that in answering this question, they “should consider” whether the amendments diminished the collateral’s value. The jury’s complete answer: ‘Yes.” This could mean they found either that the contract did not allow GDI to reduce its percentage share of Highland Grove, or that the amendments decreased the dollar value of GDI’s share.

If the verdict could be sustained under either interpretation, the trial court was bound to sustain it, as are we. “Verdicts shall have a reasonable intendment and shall receive a reasonable construction. They shall not be avoided unless from necessity.” OCGA § 9-12-4. “Even if the verdict is ambiguous and susceptible of two constructions, one of which would uphold it and one of which would defeat it, that which would uphold it is to be applied.” (Citations and punctuation omitted.) Harrison v. Martin, 213 Ga. App. 337, 344 (1) (444 SE2d 618) (1994). For reasons that follow, both interpretations of the verdict are sustainable.

First, even if we were to agree with the Highland Grove appellants that the security agreement can only be construed to prohibit a dollar value reduction, there is some evidence the first and second amendments decreased the dollar value of GDI’s share in Highland Grove. The jury was authorized to put its own value on GDI’s share before and after each amendment, based on the following evidence (see Sanders v. Robertson, 196 Ga. App. 739, 740 (1) (397 SE2d 26) (1990)): (1) Financial reports as of December 31, 1989; May 31, 1990; December 31, 1990; and testimony regarding what information was missing from those reports, and Highland Grove’s financial condition between the July 1990 and December 1990 amendments. (2) Testimony about Highland Grove’s untapped marketing potential. (3) Brock and GDI’s release, obtained in connection with one of the amendments, from their guaranty of Highland Grove’s loan. The jury could infer that GDI gave up something of value in order to obtain this release, which absolved Brock and GDI from secondary liability for approximately $9.6 million in debt (net), and enabled them to pay off two other mortgages and generate $65,000 for other purposes.

Second, there is also evidence to support a construction of the security agreement prohibiting a percentage reduction in the circumstances before us: The fact that the agreement specifically allowed reduction of the partnership interest in other circumstances.

Ordinarily, a contractual ambiguity should be submitted to the jury only to ascertain the parties’ intent if the court cannot resolve the ambiguity by applying the rules of construction. Duke v. KHD Deutz of America Corp., 221 Ga. App. 452, 453 (471 SE2d 537) (1996); Century 21 &c. v. Cason, 220 Ga. App. 355, 358 (2) (d) (469 SE2d 458) (1996); see generally OCGA §§ 13-2-1; 13-2-3. The Highland Grove appellants, however, did not invoke a ruling by the court on the contract’s meaning. They could have done so by making sure their construction was expressed in the charge or verdict form, and objecting if it was not. Because they did not do so, they cannot now complain of the jury being allowed to construe the contract. See generally Le Twigge, Ltd. v. Wammock & Co., 187 Ga. App. 446, 448 (370 SE2d 631) (1988).

There was some evidence to support a finding that the amendments violated the security agreement. The security agreement therefore did not require the trial court to grant the appellants’ motions for directed verdict or j.n.o.v.

2. Brock and the Highland Grove appellants claim that, regardless of the terms of the security agreement, the partnership amendments were authorized by OCGA § 11-9-318 (2). This statute, they contend, provides a separate ground on which the trial court should have granted them a directed verdict or j.n.o.v. As mentioned above, OCGA § 11-9-318 (2) allows modifications of assigned contracts if, among other things, the modifications are commercially reasonable and made in good faith. “ ‘Good faith’ means honesty in fact in the conduct or transaction concerned.” OCGA § 11-1-201 (19). When there is some evidence a party acted in bad faith, the issue is for the jury. Crosson v. Lancaster, 207 Ga. App. 404, 407 (4) (427 SE2d 864) (1993). Whether reasonable commercial standards have been met is also a question of fact for the jury. Tifton Bank &c. Co. v. Knight’s Furniture Co., 215 Ga. App. 471, 474 (1) (b) (452 SE2d 219) (1994). Good faith and compliance with reasonable commercial standards are separate requirements, both of which must be shown to establish a defense under the statute. See generally Trust Co. Bank &c. v. Henderson, 185 Ga. App. 367, 370 (1) (364 SE2d 289) (1987) (construing another, similarly worded Uniform Commercial Code statute).

In the case before us, the following evidence supports the jury’s findings of bad faith or commercial unreasonableness: (1) As discussed above, Brock and GDI obtained a release from a guaranty of over $9 million in debt in connection with one of the amendments. (2) Brock conceded that in 1990 he knew that, whatever GDI’s Highland Grove interest was, the value of that interest was unlikely to exceed GDI’s debt to Kohoutek. From this the jury could infer that GDI had no financial motivation to protect its Highland Grove interest. (3) All defendants knew of Kohoutek’s security interest for a month before the second amendment was signed, yet did not communicate with Kohoutek. The jury could infer from Brock’s testimony that the defendants did not notify Kohoutek because they knew Kohoutek would object. (4) In connection with the second amendment, the defendants entered into an “Agreement Regarding Curative Actions” purporting to govern their duties to each other in the event that Kohoutek contested the amendments. (5) Kohoutek presented evidence that Highland Grove’s financial problems were not as severe as the defendants claimed, nor the amendments as beneficial: (i) Though the bank was threatening to foreclose on Highland Grove’s chief asset, no actual foreclosure had been initiated; and this same bank had threatened foreclosure on several of Brock’s other projects in the past, but had never foreclosed on any of them, (ii) The second amendment added no new funding to Highland Grove beyond payment of some materialmen’s liens, and Highland Grove never borrowed any money after the second amendment, (iii) Though the defendants claimed that an interest arrearage created great pressure for the second amendment, the bank ultimately did not insist on payment of the arrearage.

Though the evidence showing good faith and commercial reasonableness is quite substantial, there is some evidence of bad faith or commercial unreasonableness. Whether the defendants violated OCGA § 11-9-318 (2) was therefore properly left to the jury. See generally Danfair Properties, supra, and Rockdale Body Shop, supra. We need not reach the question of whether the security agreement could prohibit the amendments even if the statute allowed them.

3. In two related enumerations of error, the defendants claim the court erred in denying them a new trial because the damages verdict was inconsistent with the jury’s other findings and unsupported by the evidence. The basis of this claim is the lack of any specific evidence that Kohoutek was damaged in the amount of precisely $575,000, and the defendants’ speculation that the jury reached this figure by enforcing some, but not all, of the terms of the second partnership amendment.

This argument fails because of the form of the verdict, which did not require the jury to specify how it reached its damages figure. In the absence of a verdict form requiring more specificity, “[t]he method by which a jury reaches a particular verdict is not a matter of which this court can take judicial cognizance.” (Citation and punctuation omitted.) McGill v. Precision Press, 130 Ga. App. 546 (203 SE2d 764) (1974). If the defendants desired an explanation of the basis for the damage award, they should have objected to the verdict form, which allowed the jury free rein to set damages. See Southern Crate &c. v. McDowell, 163 Ga. App. 153, 155 (3) (293 SE2d 541) (1982). Their failure to do so while the jury was still present and available to reform the verdict waived any objection. See Ploof Truck Lines v. Bennett, 221 Ga. App. 789, 791 (3) (472 SE2d 552) (1996).

Moreover, where there is some evidence to support the verdict, the grant or denial of a new trial on evidentiary grounds is within the trial court’s discretion. See OCGA § 5-5-21; see generally OCGA § 51-12-12 (a). Unless there is no evidence to support the verdict, we will not find that discretion abused. See Mansfield v. Pizza Hut &c., 202 Ga. App. 601, 602 (415 SE2d 51) (1992). Because Kohoutek asked for over $1 million in damages, and put on some evidence to support that request, these enumerations of error are without merit.

4. The final enumeration of error is asserted only by Brock, who contends the trial court should have granted his motion for j.n.o.v. or new trial because his debt to Kohoutek had previously been discharged in bankruptcy.

When Brock’s newly hired counsel supplemented his motion for new trial, they raised the bankruptcy defense for the first time. Brock contends the only reason he did not raise the discharge as a defense at trial is that he was pro se and did not realize he could raise it. Though Brock mentioned at trial that he had filed for bankruptcy protection, he never stated a case number, jurisdiction, type of bankruptcy, or whether he obtained a discharge, and never said the bankruptcy covered Kohoutek’s claim in this case. We note that the trial judge informed Brock early in the trial that discharge in bankruptcy was an affirmative defense that did not appear to have been raised.

Discharge of a debt in bankruptcy is an affirmative defense, and Brock did not plead it or introduce a copy of the order of discharge, as required by Commercial & Exchange Bank v. McDaniel, 147 Ga. App. 378, 379 (249 SE2d 97) (1978). “In a civil case the court cannot put a pro se litigant on a different standard from one represented by counsel.” (Citation and punctuation omitted.) Howell v. Styles, 221 Ga. App. 781, 783 (2) (472 SE2d 548) (1996). This enumeration of error is also without merit.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

Decided March 4, 1997.

Hassett, Cohen, Beitchman & Goldstein, Jeffrey A. Bashuk, Daniel S. Glickman, for appellant (case no. A96A2117).

Smith, Gambrell & Russell, David C. Newman, Bruce D. Cohen, for appellants (case no. A96A2118).

Lynn S. McNeese, for appellee.

       Kohoutek perfected its security interest by filing a UCC-1 statement in September 1990, which was after the first amendment but before the second. No party has raised any issues relating to the timing or substance of the perfection.


author: Ruffin, Judge.

text:
    A96A2168.
    ROBERTS et al. v. MAREN ENGINEERING CORPORATION et al.
    (483 SE2d 141)
   Ruffin, Judge.

Rommel and Brenda Roberts appeal the trial court’s order dismissing their complaint for failure to respond to the defendants’ discovery requests. We affirm.

1. “ ‘This court has repeatedly held that it will not reverse a trial court’s decision on discovery matters absent a clear abuse of discretion.’” Oliff v. Smith, 214 Ga. App. 358, 359 (447 SE2d 707) (1994). We find no such abuse under the facts of this case. Those facts show that on July 7, 1995, defendant Maren Engineering Corporation (“Maren”) served the Roberts with its first interrogatories and requests for production of documents. On July 11, 1995, defendant James Hynes also served the Roberts with his first interrogatories and requests for production of documents. When the Roberts did not respond to the discovery requests within the time allowed, counsel for both defendants notified the Roberts of their non-compliance and requested a response.

Specifically, on two occasions counsel for Maren telephoned the Roberts’ counsel and left messages, but received no return phone calls. Thereafter, on August 25, 1995, counsel for Maren wrote a letter to the Roberts’ counsel advising her that Maren had not received responses and that if the Roberts did not immediately respond, Maren would file a motion to dismiss. Although the Roberts’ counsel subsequently promised Maren that they would serve responses by September 8,1995, no such responses were served. On September 25, 1995, Maren moved to dismiss the Roberts’ complaint due to their failure to respond to the discovery.

The record shows that Hynes took similar action in notifying the Roberts of their failure to respond to his discovery requests. On August 23, 1995 and September 18, 1995, counsel for Hynes wrote the Roberts’ counsel letters requesting responses to Hynes’ discovery requests. In the second letter, counsel for Hynes notified the Roberts’ counsel that if they did not respond within ten days, Hynes would move to dismiss the complaint. The Roberts did not respond to the discovery, and on October 2, 1995, Hynes filed a motion to dismiss the Roberts’ complaint.

Decided March 4, 1997.

Elizabeth Pelypenko, for appellants.

Hawkins & Parnell, Michael A. Mills, Thomas R. Mock, Jr., Fred erick A. Bading, Sharon W. Ware & Associates, Robin P. Lourie, M. Joanne Beauvoir Brown, for appellees.

On November 21, 1995, the trial court conducted a hearing on both defendants’ motions to dismiss. On the date of the hearing, the Roberts filed a response to the motions to dismiss. And, although the Roberts faxed Maren’s counsel incomplete and unverified interrogatory and request for production responses the day before the hearing, there is no evidence showing they ever responded to Hynes’ discovery or otherwise properly responded to Maren’s discovery. On November 22, 1995, the trial court dismissed the Roberts’ complaint pursuant to OCGA § 9-11-37 (b) (2) (C) and (d) (1).

“The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance. A conscious or intentional failure to act is in fact wilful.” (Citations and punctuation omitted.) Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga. App. 344, 345 (373 SE2d 50) (1988).

The facts in this case show that the Roberts failed to respond to the defendants’ discovery requests for over three months after their responses were due. See OCGA §§ 9-11-33 (a) (2) and 9-11-34 (b) (2). Consciousness of their failure to respond is evidenced by their almost complete disregard of the numerous letters and phone calls from defense counsel concerning the discovery. Moreover, the Roberts failed to respond to the discovery even in light of the defendants’ motions to dismiss the complaint. It is patently absurd to argue that they were not aware responses were past due when faced with such motions.

Although the Roberts argue in their appellate brief that their failure to respond was accidental, they fail to cite any portion of the record supporting this argument, and we will not cull the record on their behalf. Court of Appeals Rule 27 (c) (3) (i). Accordingly, we conclude that the trial court did not abuse its discretion in dismissing the Roberts’ complaint. See Oliff, supra; Bells Ferry Landing, Ltd., supra.

2. The record shows that the trial court considered and denied the Roberts’ motion for reconsideration. Accordingly, the Roberts’ second enumeration of error is without merit.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A96A2180.
    WELLS v. ROBERTS.
    (483 SE2d 339)
   Ruffin, Judge.

Mae Pearl Wells sued Lonza Roberts for injuries and damages allegedly resulting from an automobile collision. The jury returned a verdict for Wells in the amount of $10,000. Wells moved for a new trial, arguing that the $10,000 verdict was inadequate as a matter of law. The trial court denied the motion, and Wells appeals. For reasons which follow, we affirm.

The evidence reveals that on September 3, 1993, Wells and Roberts were involved in an automobile collision. Wells, who was 45 years old, was taken to the hospital, treated, and released the next morning at approximately 2:00 a.m. with instructions to stay in bed for several'days and see her doctor. Wells’ family doctor treated her for a period of time and then referred her to the Hughston Clinic, which she first visited on October 15, 1993, complaining of pain in her left shoulder and neck. Physicians at the Hughston Clinic initially diagnosed Wells’ problems as a rotator cuff and cervical strain.

Subsequently, on January 24, 1994, Wells complained to her Hughston Clinic physician, Dr. John Burkus, of pain radiating down her left arm. Believing that this arm pain might be the result of a pinched nerve, Dr. Burkus ordered further diagnostic testing, which revealed that Wells had two bulging discs in the cervical area of her spine and degenerative disc disease.

Approximately one year later, Wells returned to Dr. Burkus, complaining again of pain and weakness in her left arm, as well as neck pain. Dr. Burkus performed more diagnostic testing and, at this point, found no evidence of a pinched nerve in her neck. However, testing did reveal mild carpal tunnel syndrome. Dr. Burkus concluded that Wells had neck pain possibly related to the disc bulges and unrelated arm pain. Dr. Burkus saw Wells for the last time on March 20, 1995, at which time he found that she was “doing well” and that her left arm had improved.

Wells sued Roberts for damages, including medical expenses and lost wages resulting from the collision. Finding for Wells, the jury’s verdict for $10,000 was as follows: $6,235.60 for lost wages, $3,140 for medical expenses, and $624.40 for pain and suffering.

1. In her first enumeration of error, Wells argues that the verdict was inadequate as a matter of law because “the undisputed special damages in the case were $4,507.00 in medical expenses and $10,605.20 in lost wages, for total special damages of $15,112.20.” We disagree.

“[Wjhether the verdict was inadequate is an issue which is addressed to the discretion of the trial judge and the standard of review in this court is whether the trial judge abused his discretion in denying the motion for new trial. [Cit.]” Mansfield v. Pizza Hut &c., 202 Ga. App. 601, 602 (415 SE2d 51) (1992). “The general rule on appeal of an award of damages is that a jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to shock the conscience. . . . Moreover, the trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence.” (Citations and punctuation omitted.) Turpin v. Worley, 206 Ga. App. 341, 343 (1) (425 SE2d 895) (1992).

We find no compelling evidence to disturb the jury’s verdict. On appeal, Wells argues that “where, under the uncontradicted evidence [her] special damages amounted to more than the verdict without even considering any amount for pain and suffering, the verdict [is] so inadequate as to require a new trial.” (Citations and punctuation omitted; emphasis supplied.) Williams v. Opriciu, 198 Ga. App. 663, 664 (1) (402 SE2d 744) (1991). The evidence relating to special damages, however, is not “uncontradicted” in this case.

(a) Although Wells claims that Roberts did not contradict her medical expenses evidence, the record reveals a dispute over whether the incurred expenses resulted from the subject collision.

Dr. Burkus testified that Wells’ injuries were consistent with the type of automobile collision that she had described to him. On cross-examination, however, Dr. Burkus admitted that he could not rule out the possibility that her shoulder problems resulted from the repetitive-motion assembly line work she performs for her employer. As described by Wells, she repeats the same task “over and over again” all day at work. Dr. Burkus similarly testified that carpal tunnel syndrome may result from this type of repetitive activity. Dr. Burkus also agreed that his diagnosis of a pinched nerve in Wells’ neck was based on her subjective complaints and that those same symptoms could have been part of the later-diagnosed carpal tunnel syndrome. Finally, Dr. Burkus testified on cross-examination that degenerative disc disease, as well as the other various symptoms Wells experienced, can occur simply from normal wear and tear on the human body. In light of this testimony, we cannot find that the cause of her injuries was “undisputed.”

To support her claim of no dispute, Wells argues that Roberts stipulated that she incurred $4,507 in medical expenses from the collision. The record, however, shows no such stipulation. Instead, the trial transcript reveals that Roberts stipulated to the amount of Wells’ medical bills. “While the parties did stipulate to the total amount of medical expenses incurred, there was no stipulation that all of these expenses were incurred as a result of the [collision]. Rather, this was a contested issue in the case.” Palmer v. Farmer, 184 Ga. App. 753, 754 (2) (362 SE2d 453) (1987).

“The question of damages is ordinarily for the jury. . . .” Turpin, supra at 342. In this case, Roberts presented testimony indicating that Wells’ medical problems could have been caused by something other than the subject collision. Given this testimony, the $3,140 award for medical expenses is neither “flagrantly inadequate” nor shocking to the conscience. Id. at 343.

(b) Special damages relating to Wells’ lost wages claim were similarly in dispute. Wells testified that as a result of the collision, she stayed out of work for 28 weeks, from September 7, 1993 through January 3, 1994, and again from January 16, 1995 until April 3, 1995. Wells further testified that her doctor recommended that she stay home from work during the first period of absence.

Competing evidence indicates, however, that she may have been able to return to work earlier. The record reveals that by October 29, 1993, her treating physician had decided to “keep her on light duty, with lifting up to twenty pounds, and then see her hack in a month and return her to work without restrictions at that time” (Emphasis supplied.) According to Wells’ appellate brief, her job on the assembly line “is not a heavy job, and it involves only light pieces of aluminum.” Furthermore, Wells has pointed to no evidence in the record that her doctors recommended that she stay out of work from January 16, 1995 through April 3, 1995. In fact, Dr. Burkus testified that by March 20, 1995, Wells was “doing well” and her left arm had “gotten a lot better.”

In light of this testimony, it was not undisputed that the collision forced Wells to stay home from work for 28 weeks. Furthermore, as noted in Division 1 (a), evidence presented to the jury raised questions as to whether the subject collision caused the medical problems afflicting her during these absences. Accordingly, we find no compelling evidence that the jury’s verdict relating to lost wages was shocking, unsupported, or flagrantly inadequate. Turpin, supra.

2. In her second enumeration of error, Wells argues that the trial court erred in excluding the mortality table she offered at trial. “The admission of evidence is a matter resting largely within the sound discretion of the trial court, and appellate courts will not interfere absent an abuse of that discretion.” Hartman v. Shallowford Commu nity Hosp., 219 Ga. App. 498, 501 (3) (466 SE2d 33) (1995).

Decided March 4, 1997.

Douglas L. Breault, for appellant.

Walker, Hulbert, Gray & Byrd, Charles W. Byrd, for appellee.

“ ‘Where the age of a person is shown, his expectancy of life may be determined by the jury without any other direct evidence on the subject. Tables of the probable length of life and its probable worth may be useful, but are not conclusive or absolutely essential for that purpose.’ ” (Citation omitted.) Henslee v. MARTA, 142 Ga. App. 821, 822 (1) (237 SE2d 225) (1977). Wells testified to her age at trial. Accordingly, we find no abuse of discretion, and we affirm the trial court’s judgment.

Judgment affirmed.

McMurray, R J, and Johnson, J, concur.


text:
    A96A2363.
    KEENE v. HERSTAM et al.
    (483 SE2d 335)
   Johnson, Judge.

James Keene, Sr. appeals the trial court’s order granting summary judgment to Chris Herstam and Mark Tharp as receivers for Farm & Home Life Insurance Company for the balance due on a promissory note Keene executed in connection with the purchase of real property.

The record in this case shows that in 1987 Keene bought a lot in Gilmer County from Eagle’s Mountain Resort, Inc. In conjunction with the purchase, he executed an installment note and a deed to secure debt. Eagle’s Mountain Resort later merged with several other entities to form Appalachian Heritage Communities, Inc. According to the parties, the note was assigned several times. Ultimately, Appalachian’s trustee in bankruptcy transferred various notes and deeds, including Keene’s, to Farm & Home in 1994. Farm & Home, through its receivers, filed suit against Keene alleging a default on the note. In his answer Keene admitted executing the note, but denied any indebtedness based on a defense of accord and satisfaction.

Farm & Home filed a motion for summary judgment, supported by the affidavit of Roberta Cagle, manager of Farm & Home’s loan service department. In the affidavit, Cagle states that Keene is in default under the terms and conditions of the installment note and is indebted to Farm & Home in the principal sum of $5,803. In opposing the motion, Keene submitted his own affidavit in which he states that after purchasing his lot, Eagle’s Mountain failed to construct certain improvements to the property in accordance with the representations made in the land purchase agreement. He states further that in 1989 or 1990, to settle the dispute, Eagle’s Mountain agreed to repurchase the note from Beneficial Finance, to whom it had been assigned, and cancel it in exchange for an executed quitclaim deed to the property. The trial court granted summary judgment to Farm & Home, and Keene appeals.

1. Keene contends the trial court erred in granting Farm & Home’s motion for summary judgment because there are genuine issues of material fact regarding the existence of an accord and satisfaction which relieved him of any liability under the note. “When the facts concerning an affirmative defense are uncontradicted, the matter may be disposed of by summary judgment; but the burden is on the movant to prove no genuine issue of fact remains, the evidence is construed in favor of the respondent, and his evidence is treated with considerable indulgence. When signatures on a note are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense. When a plaintiff established execution of a note, the burden was on the defendant to establish an affirmative defense, but on plaintiff’s motion for summary judgment, it was [its] burden to establish non-existence of a genuine issue of fact as to each affirmative defense; [its] papers are carefully scrutinized and all doubts are resolved against [it], while the respondent's] papers are treated with considerable indulgence.” (Citations, punctuation and emphasis omitted.) Maddox v. Leaphart, 214 Ga. App. 340, 342 (3) (447 SE2d 694) (1994). See Gentile v. Bower, 222 Ga. App. 736, 738-739 (1) (477 SE2d 130) (1996).

Farm & Home established a prima facie right to judgment as a matter of law by producing the note and showing it was executed. See Jay Gleason Advertising Svc. v. Gleason, 193 Ga. App. 445 (1) (388 SE2d 43) (1989). The burden then shifted to Keene to establish an affirmative defense to Farm & Home’s claim. See Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 392-393 (2) (469 SE2d 469) (1996). Once Keene raised the affirmative defense of accord and satisfaction, the burden shifted again to Farm & Home to establish the non-existence of that defense. Abdalla v. DDCB, Inc., 216 Ga. App. 667, 668-669 (455 SE2d 598) (1995). Cagle, whose affidavit is relied upon by Farm & Home, acknowledges in response to Keene’s request for admissions that Farm & Home was not the holder of the note in 1989 or 1990 and that she has no direct knowledge as to whether Keene and Eagle’s Mountain had reached an accord and satisfaction of the subject note. Therefore, Farm & Home has failed to come forward with any evidence rebutting Keene’s affirmative defense of accord and satisfaction.

Decided March 4, 1997.

Kenneth W. Revell, for appellant.

Macey, Wilensky, Cohen, Wittner & Kessler, Robert A. Winter, for appellees.

Farm & Home argues that Keene’s affidavit is insufficient because it is self-serving. It is true that an affidavit which is conclusory and is unsupported by substantiating fact or circumstances is insufficient to raise a genuine issue of material fact. See Brooks v. Boykin, 194 Ga. App. 854, 856 (3) (392 SE2d 46) (1990). However, self-serving does not equate with conclusory when the statements contained in an affidavit are supported, as here, by substantiating fact and circumstances of an alleged accord and satisfaction. This Court has repeatedly held that whether there is an accord and satisfaction is generally a question for resolution by a jury. See Derosa v. Shiah, 205 Ga. App. 106, 108 (1) (421 SE2d 718) (1992). Treating Keene’s affidavit with considerable indulgence as the non-movant on summary judgment, we conclude that his uncontradicted sworn statement that a subsequent agreement reached with Eagle’s Mountain relieved him of any further obligations under the terms of the note is sufficient to raise a genuine issue of material fact. The trial court erred in granting summary judgment to Farm & Home.

2. In light of our holding in Division 1, we need not address Keene’s remaining enumerations of error.

Judgment reversed.

McMurray, P. J, and Ruffin, J, concur.