text:
    A00A1973.
    SALINAS v. SKELTON et al.
    (547 SE2d 289)
   Ruffin, Judge.

Fair Side Lofts, LLC (Fair Side) was formed in 1994 for the purpose of converting an old warehouse into residential condominium units. Richard Skelton was Fair Side’s managing member, and Ronald Creel was Fair Side’s only other member. The company that financed the conversion required Skelton and Creel to individually purchase a certain number of condominium units as a condition for loan approval. One of those units was unit 13. Cynthia Salinas purchased unit 13 from Skelton and Creel. After partially knocking out one of the walls in her unit to reveal an old boiler, Salinas discovered that the boiler was insulated with asbestos. Salinas sued Skelton, Creel, Fair Side, and their real estate agent, alleging that they knew of the asbestos, yet failed to disclose this knowledge to her. Salinas alleged causes of action against Skelton, Creel, and Fair Side for breach of contract, fraud, intentional infliction of emotional distress, and punitive damages. Salinas alleged causes of action against the real estate agent, John A. Silliman, and ReMax North Atlanta, Inc. (ReMax) for negligent misrepresentation, intentional infliction of emotional distress, and punitive damages. The trial court granted summary judgment to all the defendants, and Salinas appealed. For reasons which follow, we affirm in part and reverse in part.

On appeal, we review the trial court’s grant of summary judgment de novo to determine whether the evidence of record, viewed in the light most favorable to the nonmoving party, demonstrates any genuine issue of material fact. Summary judgment is proper only when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.

Viewed in a light most favorable to Salinas, the evidence in this case shows that the converted warehouse contained an old boiler. Skelton stated in an affidavit that he “was aware that asbestos was a common insulating material in old buildings and knew that there was a possibility that the boiler might be insulated with asbestos.” Skelton further stated that “[r]ather than testing the boiler for the presence of asbestos, the boiler was slightly moved diagonally into its present position and encapsulated in two layers of sheet rock [sic]. Encapsulation of asbestos is a common method of dealing with asbestos.”

Floor plans of unit 13 reveal that the boiler is housed in an alcove of masonry walls located on the basement floor of the unit. Fair Side apparently enclosed the alcove with a fourth wall constructed of Sheetrock. Although Fair Side asserts that the enclosed area is not part of unit 13, the floor plans do not clearly define the unit boundaries as such. On one plan, the enclosed area is crosshatched, and the architect who prepared the plan stated in an affidavit that the cross-hatched space was not included as part of the unit. On another plan, however, the enclosed area is not cross-hatched.

In February 1997, Salinas looked at unit 13 with an interest in purchasing it. The seller’s agent, Silliman of ReMax, informed her about the enclosed boiler, told her that the enclosed area was part of the unit, and suggested that she could remove the wall to take advantage of the extra space.

Salinas decided to purchase the unit and entered into a purchase agreement. In connection with the purchase, Skelton completed a Seller’s Property Disclosure Statement (Disclosure Statement). The Disclosure Statement defines “the Property” as unit 13 and asks the seller numerous questions about the physical condition of “the Property.” The statement required the seller to respond to all questions by checking either ‘Tes,” “No,” or “Don’t Know.” Under a section titled “TOXIC SUBSTANCES,” the Disclosure Statement asks: “Are you aware of any underground tanks or toxic substances on the Property . . . such as asbestos . . . ?” Skelton failed to answer this question, but in another section of the Disclosure Statement designated for additional explanations, he wrote: “Behind sheet rock [sic] walls in basement area are walls which most likely contain lead based paint. The original boiler for the building is also behind these walls.”

After entering the purchase agreement, which contained a merger clause, Salinas frequently visited the condominium to check for water leaks and to meet the residents. However, Salinas did not hire a building inspector to examine the property because she understood that “new homes do not require an inspection.”

Upon closing the sale, Salinas decided to expand her living space into the enclosed area occupied by the boiler. Thus, Salinas took a hammer, punched a big hole in the wall, and went inside the enclosure to look at the boiler. When Salinas asked a contractor for an estimate on removing the boiler and expanding the space, he informed her that the area contained asbestos. Salinas then read the Disclosure Statement for the first time and realized that the sellers had failed to answer the question concerning the presence of asbestos on the property.

Salinas subsequently filed this action. In her complaint, Salinas alleged that Skelton and Creel breached the purchase agreement, which “incorporated by reference [the] Seller’s Property Disclosure Statement,” by failing to disclose “their knowledge or belief that the property contained asbestos.” During discovery, Skelton produced a letter, dated October 5, 1994, which was purportedly written to him by the project manager for the construction company performing the condominium conversion (Notification Letter). The Notification Letter states in part: “Located at the above referenced project we . . . have encountered two areas containing hazardous materials. ... At unit #13 basement (a/k/a boiler room) the existing boiler and some pipe lines are covered in asbestos.” The Notification Letter indicates that it was carbon copied to Creel.

When Skelton, Creel, and Fair Side moved for summary judgment, they asserted, among other arguments, that they did not know of the asbestos. Skelton stated in an affidavit: “Because I never tested for the presence of asbestos, I never had knowledge that there was asbestos around the boiler.” Similarly, Creel stated in an affidavit that he “had no knowledge as to whether the boiler contained asbestos.” In response, Salinas proffered the Notification Letter produced by Skelton in discovery, but did not take further steps to authenticate the letter.

After Silliman and ReMax also moved for summary judgment, the trial court granted summary judgment to all five defendants. Regarding Skelton, Creel, and Fair Side, the court found that Salinas’s claims founded on misrepresentations made outside the contract were barred by the merger clause in the purchase agreement. The court further ruled, “given that all parties agree that the disclosure statement was incorporated into the contract,” claims based on misrepresentations in the statement survived. Thus, Salinas’s remaining claims, the court found, “stand and fall on whether Defendants knew that the boiler contained asbestos.” The court concluded that even if the Notification Letter

has been authenticated, the statements on which Plaintiff rely are inadmissible hearsay. . . . On the evidence before the Court, Plaintiff was on notice that an old boiler was behind the wall and had the obligation to discover, using due diligence, what that meant to her plans to expand and to her health.

In granting summary judgment to Silliman and ReMax, the court essentially echoed this reasoning, finding that Salinas’s misrepresentation claims are barred by the merger clause and that her other claims are unsupported by the evidence because she failed to exercise due diligence to discover the asbestos.

1. Initially, we must determine whether the trial court properly excluded the Notification Letter from evidence. In Davis v. First Healthcare Carp. , we ruled that a document can be authenticated by circumstantial evidence. One such circumstance, when coupled with other evidence, is a party’s production of the document during discovery. The appearance and content of a document may also be cir'cumstantial evidence of authentication.

In this case, Skelton admits that he produced the Notification Letter during discovery, and neither Skelton nor Creel contends that they did not receive the letter from the construction project manager. In addition, the letter refers to the warehouse conversion project and the existing boiler in unit 13’s basement area. It is undisputed that the basement area of unit 13 of the Fair Side condominium conversion project contained a boiler. The letter further states that the boiler and some pipes are covered in asbestos, and test results presented by Salinas confirm that the boiler and some of the pipes are covered with asbestos. Finally, the letter refers to the Rowhouse Design Group as the architects who drew the plans, and the plans were undisputably prepared by that entity. Under these circumstances, we conclude that the letter was sufficiently authenticated.

We further conclude that the statement in the letter informing Skelton and Creel of the asbestos was not hearsay. This is because “[a]s a fundamental rule, the definition of hearsay does not include out-of-court statements which are not offered as proof of the facts asserted in such statement, but are offered merely as proof that such a statement was made.” In this case, the issue is not whether the letter’s author was telling the truth when he informed Skelton and Creel about the presence of asbestos, but whether the author’s statement provided those defendants with knowledge that there was asbestos on the boiler. Thus, although the letter was inadmissible to prove that there actually was asbestos on the boiler, it was admissible evidence of both Skelton’s and Creel’s knowledge of the toxic substance.

2. If a seller of real estate knows of a defect in the property of which the purchaser is ignorant, and which would likely influence the purchase decision, the seller has a duty to disclose his knowledge to the purchaser. Where a buyer seeks to recover from a seller who has passively concealed a defect,

the buyer must prove that the vendor’s concealment of the defect was an act of fraud and deceit, including evidence that the defect could not have been discovered by the buyer by the exercise of due diligence and that the seller [or agent] was aware of the problems and did not disclose them.

In this case, there is evidence that the sellers were aware of the asbestos. As we concluded in Division 1, the Notification Letter is admissible evidence, probative of the sellers’ knowledge of the asbestos.

In addition, there is evidence that Salinas could not have discovered the asbestos by the exercise of due diligence. The evidence shows that the boiler was completely hidden behind a wall. Although the appellees place great emphasis on the fact that Salinas failed to hire a professional building inspector, they have not established that an inspector would have broken through the wall to test the boiler insulation for asbestos. Likewise, the fact that Salinas failed to read the Disclosure Statement until after she learned of the asbestos is without consequence. Although the Disclosure Statement provided Salinas with constructive notice that the “original boiler for the building” was behind the basement wall on her property, we cannot say as matter of law that further inquiry would have informed her that the boiler was insulated with asbestos. We are aware of no authority or evidence which places real estate purchasers on inquiry notice that a boiler may contain asbestos.

Accordingly, the trial court erred in finding, as a matter of law, that the sellers lacked notice of the asbestos and that the purchaser failed to exercise due diligence in discovering the substance. Because the evidence of record creates a genuine issue of material fact concerning these issues, the trial court erred in granting summary judgment to Skelton, Creel, and Fair Side.

3. Skelton argues that even if the trial court erred in granting summary judgment on the stated grounds, the judgment must still be affirmed under the “right for any reason” rule. In this regard, he claims that the trial court’s grant of summary judgment on Salinas’s breach of contract claim should be affirmed because the evidence shows that Fair Side was the seller under the purchase agreement. Although Skelton is correct that Fair Side is identified as the seller in the purchase agreement, the evidence also shows that the Disclosure Statement was signed by Skelton, as the “seller,” in his individual capacity. Moreover, it is undisputed that Skelton and Creel were the true owners of unit 13 and that they were the individuals who actually sold the unit to Salinas under the agreement. Thus, to the extent that the evidence identifying the seller is conflicting, such defect was cured by Skelton’s and Creel’s performance under the agreement.

Skelton also argues that he is entitled to summary judgment because the undisputed evidence shows that the boiler area was not part of unit 13. This assertion ignores evidence that one of the floor plans of the unit did not contain cross-hatching over the boiler area and evidence that Skelton inferentially identified the boiler area as part of unit 13 in the Disclosure Statement when he stated that “the Property,” (unit 13), contained the boiler. Finally, Silliman, the seller’s agent, stated in his deposition that he understood that unit 13 contained the boiler area. Thus, it remains for the. jury to determine whether unit 13 included the boiler area.

The remainder of Skelton’s arguments are also without merit. Viewing the evidence in a light most favorable to Salinas, a jury could infer that Skelton intentionally failed to disclose the asbestos on the Disclosure Statement, which specifically asked about the presence of the toxic substance. Furthermore, inasmuch as the Disclosure Statement expressly provided that the purchaser was relying on the representations in the statement, a jury could infer that the sellers knew Salinas was acting under the misapprehension that the condominium unit did not contain asbestos.

4. Finally, Salinas argues that the trial court erred in granting summary judgment to Silliman and ReMax because evidence shows that Silliman failed to disclose the asbestos. We disagree. Without belaboring the point, Salinas does not dispute that she is bound by the merger clause in the purchase agreement, and there is no evidence that Silliman made any misrepresentations outside the agreement. The Disclosure Statement, by its express terms, was clearly limited to representations made by the seller. Accordingly, the trial court correctly granted summary judgment to Silliman on Salinas’s claims against him. Likewise, we find no error in the trial court’s grant of summary judgment to ReMax, whose liability was predicated solely on Silliman’s alleged wrongdoing.

Decided March 13, 2001

Reconsideration dismissed April 13,2001

Sylvia R. Jones, for appellant.

Long, Aldridge & Norman, Bruce P. Brown, Gregory S. Brow, Cruser & Mitchell, Joseph R. Cruser, Jennifer M. McBath, Rowen & KLonoski, Sharon L. Rowen, for appellees.

5. It is clear that, because the trial court found summary judgment was merited on Salinas’s contract, fraud, and intentional infliction of emotional distress claims against Skelton, Creel, and Fair Side, the court did not consider these defendants’ motions for summary judgment on Salinas’s claim for punitive damages. Accordingly, on remand, the court is directed to consider and rule upon this motion.

Judgment affirmed in part, reversed in part, and remanded with direction.

Andrews, P. J., and Ellington, J., concur.

       Although the trial court’s orders reveal that the court granted summary judgment to the defendants on Salinas’s claim for intentional infliction of emotional distress, she has not contested this portion of the court’s order on appeal.

       See OCGA § 9-11-56 (c); Leal v. Hobbs, 245 Ga. App. 443 (538 SE2d 89) (2000).

       See id.; see also Paden v. Murray, 240 Ga. App. 487 (523 SE2d 75) (1999).

         234 Ga. App. 744, 746-747 (1) (507 SE2d 563) (1998).

       See id. at 747; see also John Paul Mitchell Systems v. Quality King Distrib., 106 FSupp.2d 462, 472 (S.D. N.Y. 2000) (citing United States v. Brown, 688 F2d 1112, 1116 (7th Cir. 1982), for proposition that just as a defendant can identify documents by oral testimony, his act of production is implicit authentication).

       See Davis, supra at 747.

       See id.

       (Punctuation omitted.) Quiktrip Corp. v. Childs, 220 Ga. App. 463, 466 (3) (469 SE2d 763) (1996) (quoting Green, Ga. Law of Evidence (4th ed.), Hearsay, § 218).

       See id.

       See id.

       See Smalls v. Blueprint Dev., 230 Ga. App. 556, 557 (1) (497 SE2d 54) (1998).

       (Punctuation omitted.) Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74, 76 (441 SE2d 421) (1994) (quoting U-Haul Co. &c. v. Dillard Paper Co., 169 Ga. App. 280, 282 (312 SE2d 618) (1983)).

       See Smalls, supra at 558 (ruling that “ ‘[ijgnorance of a fact, due to negligence, shall be equivalent to knowledge, in fixing the rights of the parties’ ”).

       See id. (stating that “ ‘[n]otice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found such inquiry might have led’ ”).

       Salinas has not challenged the trial court’s ruling that the merger clause precludes any claims she may have regarding misrepresentations made outside the purchase agreement.

       See, e.g., Gilliam v. Fletcher Bright Co., 244 Ga. App. 315, 317 (2) (535 SE2d 325) (2000) (holding that “[a] grant of summary judgment that is right for any reason must be affirmed”).

       See Holland, v. Holland Heating &c., 208 Ga. App. 794, 795 (1) (432 SE2d 238) (1993); Selfv. Smith, 98 Ga. App. 876, 882 (107 SE2d 721) (1959).

        See Perimeter Realty v. GAPI, Inc., 243 Ga. App. 584, 596 (10) (533 SE2d 136) (2000) (ruling that “[sjcienter is seldom susceptible of direct proof, and recourse to circumstantial evidence usually is required”).

       The trial court made this finding in its order, and Salinas has not appealed that finding.

       See ReMax North Atlanta v. Clark, 244 Ga. App. 890, 893-894 (537 SE2d 138) (2000).

       See id.


source: Caselaw Access Project

author: Mikell, Judge. Andrews, Presiding Judge, Miller, Judge,

license: Public Domain

text:
    A00A2362.
    GOLDEN PEANUT COMPANY v. BASS et al.
    (547 SE2d 637)
   Mikell, Judge.

Golden Peanut Company (“Golden Peanut”) appeals a judgment in favor of Neon Earl Bass, Jr., Dry Branch Farms, Inc., and VarnerBass Enterprises (“plaintiffs”) on a breach of contract claim. Following a two-week trial, the jury returned a large verdict in favor of the plaintiffs. The trial court denied Golden Peanut’s motions for directed verdict and judgment notwithstanding the verdict, and this appeal followed. Because the trial court committed harmful error in refusing to give Golden Peanut’s requested jury charge on accord and satisfaction, we reverse.

This case involves contracts for the sale of unshelled peanuts. Golden Peanut is a “sheller,” and plaintiffs are peanut farmers. It is undisputed that under federal regulations, each farm is assigned a limited quantity of “quota peanuts” that may be sold for domestic consumption. All peanuts produced in excess of the quota are labeled “additional peanuts,” which generally must be exported or crushed for oil. Contracts for the sale of additional peanuts are subject to regulation and must be approved by a federal agency. 7 CFR § 1446.107 (a) (1990).

At issue in this case are contracts for the sale of plaintiffs’ 1990 crops to Golden Peanut. Viewed in the light most favorable to upholding the jury’s verdict, the evidence adduced at trial demonstrates that Golden Peanut agreed to pay a “floor price” for plaintiffs’ quota peanuts and additional peanuts, with the understanding that a final price could be “lock[ed] in” later in the year. Witnesses for both sides testified that a floor price is simply a minimum price. The parties reduced their agreement to writing in April 1990, when they signed fifty-five contracts, one contract for each individual peanut farm. The words “floor price” were typed next to the term “firm price” on each of the form contracts. See Estate of Sam Farkas, Inc. v. Clark, 238 Ga. App. 115, 120 (2) (517 SE2d 826) (1999) (terms added to a contract prevail over terms in a pre-printed form). See also OCGA § 13-2-2 (7) (“When a contract is partly printed and partly written, the latter part is entitled to most consideration.”). The contracts were approved by the local Agriculture Stabilization & Conservation Service (“ASCS”) office in each of the counties where plaintiffs’ farms were located.

After the contracts were signed, each party partially performed their contractual obligations. For example, as the peanuts were harvested on each of the plaintiffs’ 55 farms, they were delivered to Golden Peanut to be processed for resale. Upon each delivery, Golden Peanut paid the plaintiffs at the following rate: (1) for quota peanuts, the plaintiffs were paid the higher of the agreed-upon floor price of $675 per ton or the market “spot” price for that particular day; and (2) for additional peanuts, they were paid the floor price of $401 or $440 per ton, depending on the type of peanut. The deliveries and payments continued into the fall of 1990. Meanwhile, the parties negotiated regarding the final prices of the quota peanuts and additional peanuts.

The prescribed method for “locking in” the actual price would be slightly different for quota peanuts and for additional peanuts. For quota peanuts, the plaintiffs had the right to designate as the sale price for all deliveries during the crop year Golden Peanut’s “spot price” on whatever date the plaintiffs wished to “lock in” a price. The parties anticipated that the “spot prices” would rise as the harvest continued and the effects of the drought were felt. As to additional peanuts, the plaintiffs’ evidence was that they could “lock in” a price by reference to the “market price” on the date of their choosing.

The parties were unable to agree on the final prices. In mid-October, after a series of unsuccessful negotiations, Gaylord Coan, the president of Golden Peanut, unilaterally made what he deemed to be a final offer to pay plaintiffs $875 per ton for all quota peanuts and the previously agreed-upon floor price for additional peanuts ($401 or $440 per ton, depending on the type of peanut). Immediately following Coan’s offer, Golden Peanut sent plaintiffs a payment of approximately $900,000 which brought the amount that had previously been paid for quota peanuts to $875 per ton. The payment was accompanied by the “Varner-Bass Settlement Report,” which was a spreadsheet showing the calculation of the offered price for the quota peanuts. Plaintiffs accepted and negotiated the payment. Golden Peanut continued to pay plaintiffs $875 per ton for each subsequent delivery of quota peanuts and the floor price of $401 or $440 per ton for additional peanuts. Plaintiffs accepted the payments and never attempted to “lock in” a different price in accordance with the procedure regarding “spot prices,” “market prices,” and Rotterdam prices, et cetera. It is undisputed that plaintiffs never complained to Golden Peanut about the amount paid for the 1990 crops during the period between November 5,1990, and the filing of this lawsuit in 1994. The plaintiffs explained that Golden Peanut had prevented them from “locking in” a price by its unilateral actions in October and that Varner-Bass could not sue Golden Peanut in 1990 or 1991 because they were highly leveraged and hence compelled to accept the payments. In this action plaintiffs contend that they accepted the $875 per ton price for quota peanuts and the floor price for additional peanuts merely as partial payment of the total amount due.

Plaintiffs’ complaint alleges that Golden Peanut breached the parties’ contracts by refusing to allow plaintiffs to lock in a higher market price for peanut crops in 1990 and, as a result, that Golden Peanut grossly underpaid them. After hearing the evidence, the jury returned a verdict in favor of plaintiffs and awarded compensatory damages and interest for the quota peanuts and additional peanuts, as well as attorney fees for Golden Peanut’s bad faith.

On appeal, Golden Peanut enumerates two errors with respect to the jury charge given by the court and argues that the court erred in denying its motions for directed verdict and j.n.o.v. Because our decision regarding the jury charge on accord and satisfaction is dispositive of the case, we will address it first.

1. In its answer to the complaint, Golden Peanut raised the affirmative defense of accord and satisfaction. At trial, Golden Peanut requested two pattern jury instructions on the subject, the charges found on page 24 of the Suggested Pattern Jury Instructions, Vol. I: Civil Cases. The trial court gave only one of the two charges requested by Golden Peanut, defendant’s request to charge no. 20, which is part A of the pattern charge on accord and satisfaction:

When a new agreement takes the place of an old one, this ends the old agreement. The legal words for such an end to an old agreement are accord and satisfaction. It takes place where the parties satisfy one agreement by making and carrying out a new one; where they expressly agree that the new one takes the place of the old; or where there is a new consideration for a new promise in place of the old one.

Despite Golden Peanut’s written request, the court declined to give its second requested charge on the subject, defendant’s request to charge no. 21, which is part B of the pattern charge:

When a party makes an offer of a certain sum to settle a claim, the amount of which is the subject of a bona fide dispute, with the condition that the sum offered, if taken at all, must be received in full satisfaction of the claim, and the party receives the money, he takes it subject to the condition attached to it, and it will operate as an accord and satisfaction.

Although we are most reluctant to disturb any jury’s verdict, and especially a verdict rendered after a lengthy and expensive trial, we conclude that the court’s failure to give request no. 21 was reversible error.

It is the duty of the court to charge the jury on the law as to every controlling, material, substantial [,] and vital issue in the case. Where the court fails to give the benefit of a theory of the defense which is sustained by the evidence, a new trial must be granted.

Pritchett v. Anding, 168 Ga. App. 658, 663 (6) (310 SE2d 267) (1983).

After a verdict and judgment, an appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict in the face of motions for a new trial or motions for j.n.o.v. See, e.g., Cohen v. Lowe Aviation Co., 221 Ga. App. 259 (470 SE2d 813) (1996). On the other hand, when we decide whether a jury instruction should have been given, we do not allocate inferences and presumptions but merely examine the record to see if evidence was presented which created a substantial, material, and controlling issue in the case. See generally Pritphett, supra at 663; King v. Luck Illustrating Co., 21 Ga. App. 698 (94 SE 890) (1918). The test for whether such an issue was created is whether the evidence, if believed by a jury in accordance with the disputed jury instruction, would have affected the outcome. It is also necessary to decide whether the law given in the disputed charge was adequately explained by other portions of the trial court’s instruction.

In the case at bar, if the court’s giving of part A of the pattern charge, defendant’s request to charge no. 20, adequately explained the defense, then no error would exist from the court’s failure to give part B of the pattern charge, defendant’s request to charge no. 21. There is no requirement “that [a] court instruct in the exact language of the request, even though the request may be correct as an abstract principle of law which is directly applicable to a material issue.” (Punctuation omitted.) Harper v. Samples, 164 Ga. App. 511, 514-515 (5), (6) (298 SE2d 29) (1982), quoting Seagraves u. ABCO Mfg. Co., 121 Ga. App. 224, 226 (3) (173 SE2d 416) (1970).

We will first discuss whether the evidence made the disputed charge “directly applicable to a material issue” and then discuss whether the requested charge was redundant in view of the court’s having given part A of the pattern charge.

There was evidence of a dispute between the parties as to the final price, which dispute, according to Golden Peanut’s evidence, lasted from July through mid-October 1990. Bass and John Varner, principals of the corporate plaintiffs, testified that representatives of Golden Peanut and plaintiffs disagreed over the price, and Jerry Adams, a banker who loaned money to plaintiffs, testified without objection that Bass and Varner told him about the dispute concerning the 1990 crops. Likewise, Coan, Golden Peanut’s president, testified that the parties disagreed about the final price of the peanuts. Further, in his opening statement, counsel for plaintiffs referred to several disagreements between the parties in September and October. John H. Smith, Inc. v. Teveit, 175 Ga. App. 565, 567 (1) (a) (333 SE2d 856) (1985) (“Statements of counsel during the trial of a case may be regarded as admissions in judicio.”) (punctuation omitted).

Next, there is evidence that Coan made a final offer to plaintiffs to settle the claim during a telephone conversation with Bass and Varner in mid-October. Bass testified that following the “pretty heated conversation,” Coan said: “I’m tired of negotiating with /all. You’re going to take 875 and be happy with it, and that’s the deal. You are not going to get anything on the additionals.” According to Varner, there was “no question” that Coan said, “you’re going to take it, you’re going to be happy. I’m going to pay you the floor price on the additionals. I’m going to pay you 875 on the quotas, and we are going to stop talking about 1990.”

The evidence further demonstrates that Golden Peanut tendered the payment offered by Coan, and plaintiffs accepted that payment. Both Bass and Varner testified that they never attempted to lock in a different price for the 1990 crops with Golden Peanut. Accordingly, despite plaintiffs’ contention that they believed that the amount tendered by Golden Peanut was merely a partial payment, we find that the evidence warranted the rejected jury charge on accord and satisfaction. The next jury may believe the defendant’s evidence, or it may believe the plaintiffs’ argument that no good faith dispute existed, and no offer to settle was ever made. We cannot weigh the evidence nor predict the outcome. But it is clear that the rejected jury charge was adjusted to the evidence.

Plaintiffs argue that the error, if any, was harmless, because the refused charge was substantially covered by the charge given. We disagree.

The jury was given part A of the pattern charge on accord and satisfaction. According to the official note to that paragraph, the charge is a restatement of OCGA § 13-4-101 “in simplified form.” The first sentences of the charge would be applicable to all accords and satisfactions. They are, like novations, new contracts substituted for old. See 6 Corbin on Contracts, § 1293, p. 189 (1962). But an existing contract can be discharged pursuant to OCGA § 13-4-101 only where there is an express agreement to a satisfaction or new consideration. See, e.g., Fowler v. Gorrell, 148 Ga. App. 573 (251 SE2d 819) (1978); Wood v. Wood, 239 Ga. 120 (236 SE2d 68) (1977); McCullough v. Mobiland, Inc., 139 Ga. App. 260 (228 SE2d 146) (1976). There does not appear to have been any new consideration. Moreover, neither party claims that there was ever an express agreement that a new arrangement existed which would satisfy the claims of Varner-Bass to a higher price. There are numerous decisions interpreting OCGA § 13-4-101 which stress the necessity for a “meeting of the minds.” See, e.g., Fowler, supra; Clark Equip. Credit Corp. v. Refrigerated Transp. Co., 148 Ga. App. 405 (251 SE2d 321) (1978); First Nat. Bank of Gainesville v. Appalachian Indus., 146 Ga. App. 630 (247 SE2d 422) (1978). Whatever the confusing and much contested trial evidence does show, it fails to show a meeting of the minds.

By contrast, part B of the pattern charge, which the court declined to give, describes a nonstatutory form of accord and satisfaction, having a different lineage than part A, and being more closely adjusted to the evidence at trial. The precise language of the charge first appeared in 1921 in Riley & Co. v. London Guaranty &c. Co., 27 Ga. App. 686 (109 SE 676) (1921), relying on similar language in the seminal decision of Redmond & Co. v. Atlanta &c. R., 129 Ga. 133 (58 SE 874) (1907). Redmond & Co. relied on decisions from other American jurisdictions and on language in the earlier Georgia case of Hamilton & Co. v. Stewart, 105 Ga. 300 (31 SE 184) (1898). In the 1898 decision Justice Cobb asserted that: “Nothing could be clearer than the proposition that where one person delivers to another property, to be retained upon the condition stated, the party receiving it cannot retain the property and repudiate the condition.” Id. at 302.

Significantly, part B requires no meeting of the minds. The satisfaction occurs by operation of law if the claimants keep the payment knowing of the implied condition. We have held that a creditor’s

acceptance of such a conditional payment extinguishes the disputed debt, “notwithstanding the fact that [the creditor] protests at the time that the remainder of the account is still due and owing.” (Punctuation omitted.) Chrietzberg v. Kristopher Woods, Ltd., 162 Ga. App. 517, 518 (292 SE2d 100) (1982). Accord Collins u. Commercial Union Ins. Co., 154 Ga. App. 450, 451 (268 SE2d 685) (1980); Redmond & Co., supra at 141 (“ ‘notwithstanding any protest he may make to the contrar' ”). The Georgia rule on this matter is in accord with the general view in common law jurisdictions. See, e.g., Frank Culver Elec. v. Jorgenson, 136 Ariz. 76 (664 P2d 226) (1983); Flambeau Products Corp. v. Honeywell Information Systems, 116 Wis.2d 95 (341 NW2d 655) (1984). See generally Restatement (2d) of Contracts, §281.

The plaintiffs deny that any conditions were stated when the payment of approximately $900,000 was made by Golden Peanut in October 1990. They are correct that no notation on the check said “payment in full” and that no accompanying paperwork stated conditions. Furthermore, the plaintiffs are correct that the document labeled “Varner-Bass Settlement Report,” which accompanied the payment, is not necessarily determinative because all payments were accompanied by similar “settlement reports.” But the testimony of Coan and that of Bass and Varner raise jury issues as to whether the telephone conversation of mid-October was an offer to settle and whether the payment was accompanied by the requisite implied condition.

The plaintiffs contend that their acceptance of the $900,000 payment and their later acceptance of $875 per ton for new deliveries of quota peanuts and of the floor price for additional peanuts did not constitute an acceptance of Coan’s offer to settle but were merely acceptances of partial payments of the total amount due to them. Their assertions, even if true, would not avail them if a bona fide dispute existed and if Coan did in fact attach the requisite condition to the payments. Even a partial payment admittedly due will extinguish the whole debt if a bona fide dispute exists, and the offeror makes the payment conditional on its acceptance being a satisfaction. Riley & Co., supra at 687, citing, e.g., Chicago &c. R. Co. v. Clark, 178 U. S. 353, 367 (20 SC 924, 44 LE 1099) (1900). But if no bona fide dispute exists, then acceptance of a partial payment does not work a satisfaction. Riley & Co., supra, citing Alfred Struck Co. v. Slicer, 23 Ga. App. 52, 55 (97 SE 455) (1918). Ultimately, whether a bona fide dispute existed in mid-October and whether the payments were made conditionally were questions for the jury. But it is clear that part A of the pattern charge did not adequately cover the issues raised by the evidence. The failure to give part B of the pattern charge deprived Golden Peanut of defenses fairly raised by the evidence.

2. Although no issue is raised on appeal concerning whether Golden Peanut’s objection to the trial court’s failure to give its request to charge no. 21 was sufficient to preserve this issue for appellate review, our research has disclosed conflicting opinions on what is necessary to preserve objections to the trial court’s failure to give a written request to charge. For instance, we have held on several occasions that grounds for objection to the failure to give written requests to charge need not be stated at the conclusion of the charge; it is enough if the party voices an objection or exception and simply refers to the number of the requested charge. See Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 856 (3) (360 SE2d 415) (1987) (whole court); see also Robinson v. MARTA, 197 Ga. App. 628 (1) (399 SE2d 252) (1990); City of Dalton v. Smith, 210 Ga. App. 858, 860 (5) (437 SE2d 827) (1993) (dictum).

However, there are other decisions of this Court which have held that a litigant must distinctly state the grounds for objection after the trial court fails to give a written request to charge in order to preserve the issue for appellate review. See, e.g., Mays v. Farah U.S.A., 236 Ga. App. 1, 2 (2) (510 SE2d 868) (1999); First Union Nat. Bank v. Cook, 223 Ga. App. 374, 377-378 (6) (477 SE2d 649) (1996). These decisions parallel those of federal courts interpreting Federal Rule of Civil Procedure 51, a rule which also requires that an objection and the grounds thereof must be stated after the trial court has instructed the jury. See, e.g., Affiliated FM Ins. Co. v. Neosho Constr. Co., 192 FRD 662 (D. Kan. 2000).

Many of our panel decisions trace their ancestry to Lissmore v. Kincade, 188 Ga. App. 548, 551 (4) (373 SE2d 819) (1988), which has not been expressly overruled. However, Lissmore relied on U. S. Security Warehouse v. Tasty Sandwich Co., 115 Ga. App. 764 (1) (156 SE2d 392) (1967), which was expressly disapproved by the Supreme Court in Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 14-17 (2) (195 SE2d 417) (1973), and on Ga. Power Co. v. Maddox, 113 Ga. App. 642, 643-646 (1) (149 SE2d 393) (1966), which was disapproved and overruled by the Supreme Court in Christiansen v. Robertson, 237 Ga. 711, 712 (229 SE2d 472) (1976). Moreover, all of the decisions following Lissmore and U S. Security Warehouse are panel decisions which seem to be in conflict with our controlling, unanimous, whole court decision in Kres. See OCGA § 15-3-1 (d) (“[a] decision concurred in by all the Judges shall not be overruled or materially modified except with the concurrence of all the Judges”).

In the seminal decision of Continental Cas., supra, the Supreme Court expressly rejected the federal rule and made a distinction between subsections (a) and (b) of Code Ann. § 70-207, now OCGA § 5-5-24. The Court stated that objections to the charges which the trial judge did give are governed by subsection (a); therefore, a litigant must state distinctly the grounds for an objection to the charge as given. Id. at 16. By contrast, the Court stated expressly that subsection (b), and not subsection (a), governs how written requests to charge will be “handled” by a trial court. The Supreme Court noted that subsection (b) makes no mention of objections. Id. It then concluded that a mere objection to the trial court’s refusal to give a requested written charge, without restating the grounds, is adequate to preserve the issue for appeal. Writing for the majority, Justice Hawes reasoned as follows:

[N]o useful purpose could possibly be served by requiring that the grounds upon which counsel contend the charge should be given be repeated after the court has announced to counsel its decision that the requested charge will not be given and has instructed the jury omitting such requested charge. After the charge has been given, to require a restatement of grounds of objection to the refusal to charge timely submitted written requests would be putting form ahead of substance — a result we should always endeavor to avoid.

Continental Cas., supra at 17 (2).

The Continental Cas. opinion expressly holds that a party which has submitted a written request to charge need not “restate,” after the court has instructed the jury, the grounds for the party’s objection to the court’s omission of the requested charge. Justice Hawes, speaking for the Court, thus implies that the reason has already been stated to the trial judge. The opinion explains that “the court normally affords such party at that time[, i.e., when the charges are submitted,] an opportunity to state the grounds. . . .” Id. at 16 (2). The opinion does not address whether the charge conference must be reported or whether the grounds must appear somewhere in the record.

The otherwise clear decision in Continental Cas. does make a confusing distinction between a trial court’s failure to give a charge and its refusal to give a requested charge. Id. at 16 (2). The opinion states that subsection (a) of the Code section “relates to the manner in which a party may complain of the giving or of the failure to give an instruction to the jury.” (Emphasis in original.) Id. The opinion then states that subsection (b) relates to the manner in which written requests shall be submitted and handled by the court. The opinion pointed out that, unlike subsection (a), subsection (b) contains no provision relating to objections to the refusal to grant requests to charge. Id.

The confusion between failure and refusal to give a charge was eliminated by Kres v. Winn-Dixie Stores, supra, a 1987 unanimous whole court decision, where Judge Carley (now Justice Carley) parenthetically modified “failure” with the words “without request.” Id. at 856 (3). The whole court decision quoted with approval Roberson v. Hart, 148 Ga. App. 343, 344 (1) (251 SE2d 173) (1978), where it was explained that

“(although past decisions may suggest that objections to the court’s refusal to charge as requested are controlled by the same rule governing objections to the failure to charge (without request) or objections to the charges as given ((cits.)), the Supreme Court has held otherwise.”

Kres, supra at 856 (3). Thus, Continental Cas., as interpreted by our controlling whole court decision, stands for the proposition that subsection (a) of the applicable Code section governs objections to a court’s having given a particular charge or its failure to give an unrequested charge, and subsection (b) governs objections to the court’s refusal to give a properly requested written charge. The holdings of Continental Cas. and Kres, taken together, provide that all objections regarding a jury charge must be made on the record after the jury has been instructed, but that objections made after the charge to the court’s refusal to give a timely requested written charge need not be accompanied by the grounds for the objection.

Because we are bound by the Supreme Court decision of Continental Cas. and by our unanimous, whole court decision in Kres, it appears that Adams v. MARTA, 246 Ga. App. 698 (542 SE2d 130) (2000); K-Mart Corp. v. Lovett, 241 Ga. App. 26 (525 SE2d 751) (1999); Gay v. Hatfield, 237 Ga. App. 826 (516 SE2d 856) (1999); Mays v. Farah U.S.A., supra; Alpha Beta Dickerson Southeastern v. White Co., 235 Ga. App. 273, 276-277 (2) (509 SE2d 351) (1998); Evans Toyota v. Cronic, 233 Ga. App. 318, 322 (3) (a) (503 SE2d 358) (1998); Anderson v. State, 231 Ga. App. 807, 810-811 (3) (a) (499 SE2d 717) (1998); Bedeski v. Atlanta Coliseum, 224 Ga. App. 435 (1) (480 SE2d 881) (1997); First Union Nat. Bank v. Cook, 223 Ga. App. 374 (477 SE2d 649) (1996); Gen. Accident Ins. Co. v. Straws, 220 Ga. App. 496, 497-498 (2) (472 SE2d 312) (1996); James v. Tyler, 215 Ga. App. 479, 481-482 (5) (451 SE2d 506) (1994); Roswell Properties v. Salle, 208 Ga. App. 202 (430 SE2d 404) (1993); Lissmore v. Kincade, supra; Kittles v. Kittles, 187 Ga. App. 537, 539-540 (5) (370 SE2d 803) (1988); and Carpet Transport v. Dixie Truck Tire Co., 185 Ga. App. 181, 183-184 (2) (363 SE2d 840) (1987), and any like opinions, were incorrectly decided and should no longer be followed. We need not overrule Ga. Power Co. v. Maddox, supra, as its gravamen was expressly overruled by a whole court decision of this Court in A-1 Bonding Svc. v. Hunter, 125 Ga. App. 173, 183 (186 SE2d 566) (1971) (Chief Judge Bell speaking for the Court in an “addendum” to the opinion). Ga. Power Co. was also expressly overruled in 1976 by the Supreme Court in Christiansen, supra.

In the case at bar, counsel for Golden Peanut made his objections to the trial court’s jury instructions using the two different techniques authorized by our whole court decision in Kres and by the Supreme Court in Continental Cas. Counsel for Golden Peanut first made a minimalist, perfunctory objection to the court’s failure to give the charges he had requested, to wit: “We object to the failure to give defendant’s request to charge No. 21, 22, 23, 25, 26, 28.” He then went on, as required by OCGA § 5-5-24 (a), to state more elaborate objections to the charges the court did give, stating the grounds for each objection, to wit:

We object to the Court instructing the jury that if a person willfully testifies falsely, that they are required to disregard or shall disregard the remainder of their testimony unless corroborated. The jury has discretion to determine ... or accept any part of a witness’ testimony. I object to the burden of proof charge on confidential relations, not only in imposing the burden on the defendant, but the charge as written suggested to the jury as if the Court were commenting on the evidence in that we had failed to read the agreement. We object to the Court charging that the agreement on additional peanuts is legally enforceable. . . .

The minimalist objection by Golden Peanut to the failure to give timely submitted written requests to charge was adequate to preserve the objection according to Continental Cas. Significantly, in that case, appellant’s counsel did not even mention the numbers of the refused charges. The precise objection which was held to have been adequate to preserve the issue was the following: ‘Your Honor, I object to the failure of the court to charge those charges that I gave that the court did not give.” Continental Cas., supra at 15 (2). The objection obviously fails to state the grounds of the objection, and the Supreme Court used the opportunity expressly to disapprove our holding in U. S. Security Warehouse v. Tasty Sandwich Co., supra, “and all other cases to a like effect.” Continental Cas., supra at 17 (2).

Similarly, Kres held that an alleged error was preserved for appeal by counsel merely objecting “to the Court’s failure to charge [her] Request to Charge [No. 15]. . . .” (Punctuation omitted.) Id. at 856 (3). Accord Robinson v. MARTA, supra at 628 (1); City of Dalton v. Smith, supra at 860 (5) (“ ‘unnecessary for [a] party to state grounds of objection’ ”). The decision in Kres was concurred in by all nine judges then on our Court. However, the Kres decision was not mentioned by the later panel decisions of Carpet Transport (1987), Kittles (1988), Lissmore (1988), Roswell Properties (1993), James (1994), Gen. Accident Ins. Co. (1996), First Union (1996), Bedeski (1997) , Anderson (1998), Alpha Beta Dickerson (1998), Evans Toyota (1998) , Gay (1999), Mays (1999), K-Mart (1999), and Adams (2000). See OCGA § 15-3-1 (d) (“A decision concurred in by all the Judges shall not be overruled or materially modified except with the concurrence of all the Judges.”).

Although we find that Golden Peanut did all that it was required to do to preserve its objections to the trial court’s refusal to give its written requests to charge, this does not end our consideration of this issue. Both Continental Cas. and Kres are premised on the rationale that it is unnecessary for litigants to state their grounds for objections to the trial court’s failure to give their written requests to charge at the conclusion of the charge because they have already done so. Thus, Continental Cas. states that the ground of objection need not be “restated.” Continental Cas., supra at 17. This obviously implies that the reason has already been stated to the trial judge. And Kres states

[t]hus, where the trial court refused to instruct the jury in accordance with a timely submitted written request, in order to secure review of that action on appeal it is unnecessary for the party to state grounds of objection to such refusal at the conclusion of the charge. It is only necessary that the refusal to charge be objected to at some point.

(Citations and punctuation omitted; emphasis supplied.) Id. at 856-857 (3). As Continental Cas. explains, the requirements of OCGA § 5-5-24 (b) that the charges be submitted to the court and served on the opposing party afford the trial court “every opportunity to be informed as to the contention of the respective parties concerning such request.” Id. at 17 (2). Moreover, the statute requires the trial court to inform the parties of its proposed action upon the requests prior to argument.

Neither Continental Cas. nor Kres requires that these pre-charge objections or discussions appear on the appellate record. Obviously, if the requested charge is a pattern charge, such as the one in the case at bar, or otherwise embodies a well-established principle of law, the argument urged to the court in support of giving the charge might itself be quite minimal. When the request is a pattern charge approved by the Council of Superior Court Judges, a citation to the book of Suggested Pattern Jury Instructions, placed at the bottom of the written request, should suffice to alert the trial court to counsel’s contention that the requested instruction is valid law in Georgia. Similarly, a party’s submission of a written charge is an assertion that counsel believes that the requested instruction is adjusted to the evidence presented at trial. Nothing else should be needed to preserve for appeal an objection to the court’s refusal to give such a charge except, of course, a reminder to the trial judge after the judge has instructed the jury that the party still objects or excepts to the charge not having been given. As explained by the Supreme Court of a neighboring state, we should not require “that the objecting party, in order to preserve for review an erroneous jury instruction, . . . deliver a discourse before the trial judge on the applicable law of the case.” Gardner v. Dorsey, 331 S2d 634, 637 (Ala. 1976).

On the other hand, there are other cases involving charges on novel points of law, in which a record of what transpired below would greatly aid this Court in deciding the issue on appeal. In novel cases, it would be helpful for counsel to cite on the record what authority supports the validity of the legal point made in the requested charge and precisely which evidence at trial makes the legal point applicable. Moreover, this comports with our general rule of appellate procedure that we will not consider grounds on appeal which are different from those urged below, and this rule pertains to objections to charges as well as other trial matters. See, e.g., City of Dalton, supra at 858-859 (1).

Thus, the better practice, and the one we would urge the litigants and courts of this state to follow, is that the grounds of objection, i.e., the reasons urged for the requested charge, should be placed somewhere on the record, although all that is needed after the charge is a perfunctory objection identifying the omitted requested charge. And while the record need not be made with any particular formality, enough should appear so that the reviewing court can ascertain the grounds urged below.

3. While we conclude that the court erred in not giving the pattern jury charge on the theory of accord and satisfaction, we reject Golden Peanut’s contention that the court erred in denying its motions for directed verdict and j.n.o.v. on that issue.

It is well settled that the standard of appellate review of the denial of both a motion for directed verdict and a motion for j.n.o.v. is the any evidence test. Pulte Home Corp. v. Woodland Nursery &c., 230 Ga. App. 455, 456 (2) (496 SE2d 546) (1998).

The question before this court is not whether the verdict and the judgment of the trial court were merely authorized, but is whether a contrary judgment was demanded. A judgment n.o.v. is properly granted only when there can be only one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is not error to deny the motion.

(Citations and punctuation omitted.) Id. See also Ruben’s Richmond Dept. Store v. Walker, 227 Ga. App. 867 (490 SE2d 536) (1997); Professional Consulting Svcs. &c. v. Ibrahim, 206 Ga. App. 663, 665 (1) (426 SE2d 376) (1992).

Based on this standard, we conclude that there was evidence to support the rejection of Golden Peanut’s accord and satisfaction defense and that the trial court properly denied the motion for directed verdict and submitted the case to the jury. Likewise, because there was an evidentiary basis for the jury’s verdict, the court properly denied the motion for j.n.o.v.

4. Next, Golden Peanut argues that the court erred in denying its motions for directed verdict and j.n.o.v. as to plaintiffs’ additional peanuts, alleging that plaintiffs’ theory of recovery violates a federal statute and its implementing regulations. We note that the court’s denial of the motions must be upheld if there is any supporting evidence and conclude that the court did not err. See Pulte Home Corp., supra at 456.

According to the statute in force in 1990, 7 USC § 1359 (a) (1988), additional peanuts could be marketed only through contracts that complied with federal regulations. The applicable regulations required that “the final contract price” of the additional peanuts appear on the contract and that the contract contain a prohibition against changing the price. 7 CFR § 1446.107 (a) (7), (12) (1990). In order for a contract to be approved, the contract price for additional peanuts must have been “[expressed in such a manner that a third party may determine . . . the actual price of the peanuts without a need for additional negotiations.” 7 CFR § 1446.108 (a) (1990). In 1990, contracts for additional peanuts had to be submitted to the local ASCS office by July 31. 7 CFR § 1446.107 (a).

Golden Peanut argues that the contracts at issue failed to comply with the applicable federal regulations because they did not specify a final price for additional peanuts other than the stated “floor price,” nor did they contain a formula by which a third party could determine the higher price. Thus, the additional peanuts could not have been purchased for a price higher than that specified in the contract. According to Golden Peanut, plaintiffs’ theories of recovery based on an alleged agreement that they could pick a market price at any time during the year were illegal and unenforceable. We reject this argument.

As a preliminary matter, we note that the three amici are correct that federal regulation of the production and marketing of peanuts is supreme, and we are in no way contesting or diminishing the federal authority to regulate the peanut industry. If Georgia sought to regulate any aspect of the production and marketing of peanuts, the applicable federal regulations would preempt the state legislation and render it void. See generally Gentry v. Volkswagen of America, 238 Ga. App. 785, 786-787 (2) (521 SE2d 13) (1999). But Georgia has not attempted to regulate the peanut industry. It is clear that the federal regulatory scheme contemplates the sale of peanuts, and it is certainly foreseeable that disputes over contracts for the sale of peanuts would be resolved in state court in accordance with state law. The federal regulations do not expressly provide that a contract that is not in accordance with the regulations is necessarily void. Thus, we turn to Georgia law to determine whether the contracts required illegal conduct and were therefore unenforceable.

The contracts were negotiated by the parties and were actually prepared on a form supplied by Golden Peanut. Because Golden Peanut was one of the largest peanut shellers in the industry, it might be presumed that Golden Peanut was familiar with the applicable federal regulations. We are therefore troubled by one who negotiated a contract that it knew, or should have known, violated federal regulations subsequently attempting to evade its performance of that contract by claiming that the contract violated those regulations.

Regardless, while Georgia law dictates that a court cannot enforce a contract “to do an immoral or illegal thing,” we do not find that the contracts in the case sub judice required illegal conduct. See OCGA § 13-8-1; Moore v. Dixon, 264 Ga. 797 (452 SE2d 484) (1994). See also Adams v. Trust Co. Bank, 206 Ga. App. 554 (426 SE2d 36) (1992); Golden Peanut Co. v. Hunt, 203 Ga. App. 469 (416 SE2d 896) (1992).

Our recent decision, cited by amicus, Maner v. Chatham County, 246 Ga. App. 265 (540 SE2d 248) (2000), is distinguishable. In that case, a defendant successfully escaped compliance with its contractual obligations because the county employee who made the promises lacked authority to enter into contracts on the county’s behalf and also because the promises required violation of explicit state statutes involving police officers and public safety. By contrast, the three amici ask this Court to deny enforcement of a contract negotiated between experienced business persons on the ground that the contract violated technical aspects of complex federal regulations regarding price specification in contracts for the sale of farm products. If the contracts were executory, we might be inclined to leave the parties as we find them. But the contracts in dispute have been performed, tens of thousands of tons of peanuts have been delivered, and the remaining dispute concerns only price. The farmers were entitled at least to quantum meruit.

Furthermore, the evidence does not preclude a finding that the contracts complied with federal regulations. First, we recognize that nine ASCS offices independently approved the contracts as complying with federal regulations. At a minimum, there was evidence to support plaintiffs’ contention that the parties had agreed to a method for determining the final price of additional peanuts by locking in a market price later in the year. Accordingly, we conclude that the court did not err in denying Golden Peanut’s motions for directed verdict and j.n.o.v. as to the additional peanuts.

5. Golden Peanut assigns error to the court’s denial of its motion for j.n.o.v., based on its contention that the jury impermissibly relied on parol evidence of the parties’ alleged agreement to lock in a price later in the year. Golden Peanut argues that evidence of an alleged oral agreement reached before the contracts were executed was barred by the contracts’ merger clause.

As a preliminary matter, we recognize that Golden Peanut failed to object to the admission of parol evidence at trial and actually introduced its own parol evidence. Golden Peanut’s failure to object acts as a waiver of this argument on appeal. Franklin v. Towe, 233 Ga. 950 (3) (213 SE2d 892) (1975). Likewise, Golden Peanut’s introduction of parol evidence waived any argument it might have regarding plaintiffs’ parol evidence. See Williams v. Mem. Med. Center, 218 Ga. App. 107, 108 (2) (460 SE2d 558) (1995).

For purposes of retrial, we note that it is well settled that parol evidence is admissible to explain ambiguities in a written agreement. OCGA §§ 24-6-3 (b); 13-2-2 (1); Empire Distrib. v. George L. Smith II Ga. &c. Auth., 235 Ga. App. 742, 744 (509 SE2d 650) (1998). “Parol evidence is admissible to explain all ambiguities, the question as to what was intended being an issue of fact for the jury.” (Citations and punctuation omitted.) Alpha Beta Dickerson Southeastern v. White Co., supra at 275 (1).

In the case sub judice, plaintiffs introduced parol evidence of the parties’ agreement to lock in a higher price later in the year to explain the meaning of the term “floor price” in the contracts. Because parol evidence is admissible to complete an agreement, the court did not err in allowing the jury to consider it. See Preferred Risk Mut. Ins. Co. v. Jones, 233 Ga. 423, 424-425 (1) (211 SE2d 720) (1975). Furthermore, evidence of the agreement to lock in a price was not inconsistent with or contradictory to the written contracts. Compare Golden Peanut Co. v. Hunt, supra at 471.

6. Finally, Golden Peanut argues that the court erred in charging the jury on OCGA § 11-2-305 (3), which provides: “When a price left to be fixed otherwise than by agreement of the parties fails to be fixed through the fault of one party [,] the other may at his option treat the contract as cancelled or himself fix a reasonable price.” Golden Peanut contends that the charge was inapplicable to the evidence and misled the jurors by leading them to believe that Golden Peanut’s refusal to pay the disputed amount gave plaintiffs the right to fix a price bearing no relationship to the contracts. See John D. Robinson Corp. v. Southern Marine &c. Co., 196 Ga. App. 402, 408-409 (395 SE2d 837) (1990).

There was evidence, however, that the parties had agreed to a method for arriving at a price, by which plaintiffs would lock in a market price during the year. There is at least some evidence that Golden Peanut prevented plaintiffs from locking in a price and, thus, caused the “floor price” agreement to fail. At a minimum, the evidence presented a jury question as to the fault of Golden Peanut.

Golden Peanut relies on a Seventh Circuit case for the proposition that the charge at issue applies only when some action by the parties is required to enable a third party or external agency to set the price in accordance with the agreement. Weisberg v. Handy & Harman, 747 F2d 416, 420 (7th Cir. 1984). However, Golden Peanut has cited no Georgia case to support its argument, and our research reveals none. Moreover, OCGA § 11-2-305 (3) is silent as to third parties. Because it is the duty of the court to charge the jury on the law as to every issue in the case which is even minimally sustained by the evidence, we cannot conclude that the court erred in charging the

Judgment reversed.

Blackburn, C. J., Johnson, P. J., Eldridge and Ellington, JJ., concur. Pope, P. J., Smith, P. J., Ruffin, Barnes and Miller, JJ., concur and concur specially as to Division 2. Andrews, P. J., concurs and concurs specially as to Division 3. Phipps, J., not participating.

Andrews, Presiding Judge,

concurring specially.

Although I concur fully in Divisions 1, 2, 4, 5, and 6,1 must concur specially as to Division 3 because I believe Golden Peanut (Golden) was entitled to a directed verdict on the issue of accord and satisfaction.

As set out in the majority, it is not disputed that in October 1990, Coan, on behalf of Golden, told Bass and Varner that $875 per ton on the quota peanuts and the floor price on the additional peanuts was all that Golden was going to pay and there would be no further discussion of the 1990 peanuts. It is also undisputed that, after this declaration by Coan, Varner-Bass was sent, received, and cashed over $900,000 in payments based on the $875 per ton quota peanuts and floor price per ton additional peanuts. As Bass testified, “we had to take it. We couldn’t turn down any checks.” Varner estimated that his and Bass’ personally guaranteed debt for Varner-Bass was approximately $36 million and they did not refuse the money paid by Golden or make any protest at that time that additional monies were owed on the 1990 peanuts.

The later protest, made by instituting this litigation and contending in response to Golden’s motion for directed verdict and judgment notwithstanding the verdict that the payments were accepted only as an advance on a larger sum, was unavailing. Redmond & Co. v. Atlanta &c. R., 129 Ga. 133, 136 (58 SE 874) (1907) (acceptance of money due to great financial distress does not prevent accord and satisfaction); Hamilton & Co. v. Stewart, 105 Ga. 300, 302 (31 SE 184) (1898); M. Walter & Co. v. North Highland Assembly of God, 188 Ga. App. 852 (374 SE2d 792) (1988).

Therefore, I believe Golden was entitled to a directed verdict or j.n.o.v. on the defense of accord and satisfaction. See Gary v. E. Frank Miller Constr. Co., 208 Ga. App. 73, 75 (2) (430 SE2d 182) (1993).

Miller, Judge,

concurring specially.

I concur fully with the result reached by the majority, but write specially with regard to Division 2. In assessing any error in the failure of the trial court to give a written request to charge, our main concern is whether at some point the grounds for the objection have been given on the record. Of course if the grounds were given prior to the charge to the jury, and this court has those grounds of record, there is no requirement that they be restated, and this court can review the error after determining whether those same grounds are argued on appeal. It is well established that review of the charge enumerated is limited to the ground of objection stated at trial. In summary, my view is that the proper method of making an objection to a requested charge that was not given is to state that objection and the charge, and then state the legal basis. As a practical matter, this gives the trial judge a final opportunity to evaluate whether the grounds given require the giving of the charge or whether an additional charge should be given prior to the jury beginning its deliberations. This will assist in maintaining the integrity of the verdict and eliminate the need for appeals on this issue.

Decided March 30, 2001 —

Reconsiderations denied April 13, 2001 —

Alston & Bird, Jay D. Bennett, Candace N Smith, Paul J. Kaplan, Bondurant, Mixson & Elmore, Emmet J. Bondurant, Michael B. Terry, Frank M. Lowrey TV, for appellant.

King & Spalding, Griffin B. Bell, Benjamin F Easterlin TV, Michael C. Russ, John P. Brumbaugh, for appellees.

Watson, Spence, Lowe & Chambless, Evans J. Plowden, Jr., Dawn G. Benson, Charles K. Wainright II, amici curiae.

I am authorized to state that Presiding Judge Pope, Presiding Judge Smith, Judge Ruffin and Judge Barnes join in this special concurrence.

       Accord Adams v. MARTA, 246 Ga. App. 698 (542 SE2d 130) (2000); K-Mart Corp. v. Lovett, 241 Ga. App. 26 (525 SE2d 751) (1999); Gay v. Hatfield, 237 Ga. App. 826 (516 SE2d 856) (1999); Alpha Beta Dickerson Southeastern v. White Co., 235 Ga. App. 273 (509 SE2d 351) (1998); Evans Toyota v. Cronic, 233 Ga. App. 318 (503 SE2d 358) (1998); Anderson v. State, 231 Ga. App. 807 (499 SE2d 717) (1998); Bedeski v. Atlanta Coliseum, 224 Ga. App. 435 (480 SE2d 881) (1997); Gen. Accident Ins. Co. v. Straws, 220 Ga. App. 496 (472 SE2d 312) (1996); James v. Tyler, 215 Ga. App. 479 (451 SE2d 506) (1994); Roswell Properties v. Salle, 208 Ga. App. 202 (430 SE2d 404) (1993); Kittles v. Kittles, 187 Ga. App. 537 (370 SE2d 803) (1988); Carpet Transport v. Dixie Truck Tire Co., 185 Ga. App. 181 (363 SE2d 840) (1987).

       The parties stipulated that a general objection was sufficient “basis for the record” without reading the request into the record.

         Benson v. Tucker, 160 Ga. App. 217, 218 (1) (286 SE2d 485) (1981).


author: ELDRIDGE, Judge.

text:
    A01A0500.
    BOGAN v. THE STATE.
    (547 SE2d 326)
   ELDRIDGE, Judge.

A Houston County jury convicted Lewis Bogan of theft by receiving stolen property, aggravated assault, and robbery by sudden snatching in violation of OCGA §§ 16-8-7, 16-5-21, and 16-8-40 (a) (3), respectively. He was sentenced to 60 years confinement without parole. The defendant appeals from the superior court’s denial of his motion for new trial, as amended, contending: (1) that the superior court erred because the evidence was insufficient to support his convictions; (2) that he was denied the effective assistance of counsel, and (3) that the superior court erred in granting the State’s motion in limine as to cross-examination of the State’s witnesses extending to any record of arrest, suspicion, or accusation of a crime or other evidence of bad character denying him his right to a thorough and sifting cross-examination on material impeachment evidence under Davis v. Alaska, 415 U. S. 308, 316 (94 SC 1105, 39 LE2d 347) (1974), as interpreted in Kinsman v. State, 259 Ga. 89, 91 (376 SE2d 845) (1989). Finding no merit in defendant’s claims of error, we affirm. Held:

1. By his brief on appeal, defendant has neither argued nor provided citations of authority for the proposition that the jury verdicts against him for receiving stolen property and robbery by sudden snatching were not supported by sufficient evidence. Inasmuch as the defendant has abandoned the instant claim of error to the extent it was intended to reach these offenses, we address the instant claim of error only in the context of the offense of aggravated assault by automobile. See Court of Appeals Rule 27 (c) (2); Cline v. State, 199 Ga. App. 532, 533 (1) (405 SE2d 524) (1991).

Viewed in the light most favorable to the verdict, the evidence shows that during the early morning hours of December 27,1997, the defendant snatched a woman’s purse in the parking lot of a Cracker Barrel restaurant located in Perry as she and her husband walked to the restaurant. The defendant ran. The husband pursued the defendant and managed to attach himself to the driver’s side of the pickup in which defendant sped away. In an unprompted confession to his cellmate admitted at trial, the defendant stated that he nonetheless drove off, “dragging” the husband with him, managing to shake him from the vehicle, leaving him injured on the ground. Defendant was arrested in the afternoon of January 2, 1998, after he was found hiding in the darkened men’s room of Hughes Auto Care in Perry — this upon a 911 call to the Perry Police Department from a Hughes Auto Care employee. The employee reported a suspected stolen vehicle in that he had overheard a conversation between a man who had driven a black, like-new, 1997 Toyota Tacoma to the shop and his employer in which the driver offered to sell the vehicle for only $1,500, although the vehicle appeared to be worth nearly ten times as much. Other evidence showed that the police confirmed the vehicle’s status as stolen and found its ignition key in the restroom in which the defendant hid.

The offense of aggravated assault is committed when a person assaults another “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). Since the offense of aggravated assault is inclusive of the elements of simple assault, Cline v. State, supra at 533 (2), an aggravated assault by automobile under OCGA § 16-5-21 (a) (2) is committed with a general intent to injure. Watkins v. State, 254 Ga. 267, 269 (328 SE2d 537) (1985); Riddle v. State, 145 Ga. App. 328, 329-330 (243 SE2d 607) (1978), overruled on other grounds, Adsitt v. State, 248 Ga. 237, 240 (6) (282 SE2d 305) (1981). Further, while an automobile is not in and of itself a deadly weapon, it may become such a weapon dependent upon the circumstances attendant to its use. Cline v. State, supra at 534 (2); Spaulding v. State, 185 Ga. App. 812, 813 (1) (366 SE2d 174) (1988). “The question of whether an automobile, or other instrumentality, has been used so as to constitute a deadly or offensive weapon is properly for the jury’s determination.” Id.

That the defendant dragged the victim husband alongside his vehicle as he made his getaway from the scene of the Cracker Barrel purse snatching, ultimately doing his victim substantial injury by shaking him free of the car, is undisputed. On appeal, we neither weigh the evidence nor determine witness credibility. Rather, our duty is to determine the sufficiency of the evidence. Elrod v. State, 238 Ga. App. 80, 81 (1) (517 SE2d 805) (1999); Davis v. State, 225 Ga. App. 627 (1) (484 SE2d 655) (1997). The evidence here was sufficient to enable any rational trier of fact to find the defendant guilty beyond a reasonable doubt of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Spaulding v. State, supra at 812-813 (1).

2. Defendant contends his trial counsel was ineffective for failing to interview witnesses in preparation for trial; for failing to file a motion to sever Count 1 of the indictment, receiving stolen property, from Counts 2 and 3 thereof, aggravated assault and robbery by sudden snatching, respectively; for failing to request jury charges as to reckless conduct and theft by taking as lesser included offenses of aggravated assault and robbery by sudden snatching, respectively; for failing to reserve defendant’s right to object to the superior court’s charge; and for failing to object to defendant’s in-court identification in the absence of a ruling on his motion to suppress the pretrial photographic lineup shown to the husband and wife victims.

To prove the ineffectiveness of trial counsel, “a defendant must show that counsel’s performance was deficient and that ‘the deficient performance prejudiced the defense.’ ” Landers v. State, 270 Ga. 189, 191 (4) (508 SE2d 637) (1998), citing Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). “We must affirm a trial court’s finding that a defendant has not been denied effective assistance of counsel unless it is clearly erroneous. [Cit.]” Turner v. State, 237 Ga. App. 642, 645 (4) (516 SE2d 343) (1999). “As a general rule, matters of tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.) Milliken v. State, 230 Ga. App. 810, 812 (2) (b) (498 SE2d 127) (1998).

(a) Defendant’s trial counsel was not deficient for failure to interview witnesses in preparation for trial. By trial counsel’s answers to defendant’s first interrogatories, substituted by consent of the parties for a hearing on defendant’s motion for new trial (“trial counsel’s answers”), trial counsel admitted that he had not interviewed the State’s witnesses. However, he otherwise attested that he was adequately prepared for trial after preparing for a month and that he was not unfamiliar with the testimony of the State’s witnesses, having two times “read the [S]tate’s file containing their information, statements.” This does not establish deficient performance as counsel for inadequate trial preparation. Cochran v. State, 262 Ga. 106, 107-108 (2) (414 SE2d 211) (1992).

Trial counsel also attested he had not subpoenaed defendant’s witnesses “Robby Hughes and Deputy Ford,” because the husband and wife victims were unable to identify the perpetrator. While trial counsel conceded that during trial he felt the need for additional time to interview them, defendant does not support this aspect of his ineffectiveness claim by evidence showing that trial counsel’s decision not to seek a continuance was deficient as not legitimately a sound trial strategy. “The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered [a] sound trial strategy.” (Citations and punctuation omitted.) Cochran v. State, supra at 107 (2).

(b) Defendant challenges as ineffective assistance of counsel the fact that his trial counsel failed to file a motion to sever the theft by receiving stolen property count from those charging him with aggravated assault and robbery by sudden snatching. However, “[t]he decision [not] to file a motion to sever is a matter of trial tactics and the fact that such a motion was not filed does not require a finding that trial counsel was ineffective.” Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990). A defendant must do more than raise the possibility that separate trials upon the charges against him would have provided him a better chance of acquittal. Mitchell v. State, 220 Ga. App. 264, 266 (469 SE2d 707) (1996). Such a defendant must make a clear showing of prejudice proximately causing a denial of due process. Id. In his answers, trial counsel speculates that defendant might have been acquitted of the offenses of aggravated assault and robbery by sudden snatching had the superior court granted a motion to sever in this case. However, such speculation raises no more than a mere possibility, a showing which is insufficient in these circumstances. Id.; Cochran v. State, supra at 107.

(c) Trial counsel’s failure to request charges on the offenses of theft by taking and reckless conduct as lesser included offenses of robbery by sudden snatching and aggravated assault did not constitute deficient performance as counsel. “[T]o pursue an all-or-nothing defense [is] a matter of trial strategy. [Cits.]” Turner v. State, supra at 645.

(d) Defendant also contends that his trial counsel was ineffective for failing to reserve objections to the jury charge. “Failure to object to a court’s charge, however, is not ineffective assistance where the appellant does not show how this prejudiced his case. [Cit.]” (Punctuation omitted.) Gomillion v. State, 236 Ga. App. 14, 18 (3) (c) (512 SE2d 640) (1999). Defendant makes no such showing on appeal.

(e) Finally, the defendant fails in his claim that trial counsel was ineffective in not objecting to the in-court identification testimony of the husband and wife victims, the superior court not having ruled on his pretrial motion to suppress any in-court identification evidence. Here, the husband and wife victims testified that the defendant and the perpetrator shared similar features; however, both were unable to positively identify the defendant as the perpetrator in court. Likewise, the husband and wife testified that they had been unable to positively identify the defendant in the photographic lineup shown to them before trial. Beyond the absence of any in-court identification, the testimony of the husband and wife as to the perpetrator’s identity was not otherwise inadmissible, since it was relevant on the question of the defendant’s identity — whether to show that he was the perpetrator or to show that he was not. Under these circumstances, trial counsel’s failure to object to the identification testimony cannot be considered deficient performance, since objection was not warranted. See Bagwell v. State, 270 Ga. 175, 178 (1) (c) (508 SE2d 385) (1998) (failure to object to otherwise relevant evidence not ineffective); Gomillion v. State, supra at 17-18 (3) (b). In any event, in light of defendant’s admissions of record, prejudice is not shown under the second prong of Strickland.

3. The superior court’s grant of the State’s motion in limine did not deny the defendant his right to impeach the State’s witnesses by a thorough and sifting cross-examination as to their prior arrests, offenses of which they had been suspected or accused, and other evidence of bad character. By its terms, the State’s motion did not seek the suppression of such evidence in an absolute sense, as defendant argues by brief on appeal. Rather, by its terms, the motion sought to foreclose only such impeachment as defendant could not show to be admissible in an out-of-court hearing. Moreover the record reflects that the superior court and the parties were mindful of the right of a criminal defendant to cross-examine concerning “pending criminal charges against the witness in order to expose the witness’ motivation in testifying, e.g., bias, partiality, or agreement between the government and the witness. Davis v. Alaska, [supra at 316-317]; Hines v. State, [supra at 259-260].” Johnson v. State, 244 Ga. App. 128, 131 (1) (534 SE2d 480) (2000). In this regard, defendant, following extensive testimony on direct to the same effect, was permitted an unimpeded cross-examination of the cellmate through whom his jailhouse confession was admitted. There is no indication in the record that defendant could not have further exercised his right of cross-examination for the purpose of demonstrating in a like manner the partiality of any of the State’s witnesses. Accordingly, the superior court did not err in granting the motion in limine. Even were this not the case, any error would be harmless for want of prejudice inuring to the detriment of the defendant. Tarleton v. Griffin Fed. Sav. Bank, 202 Ga. App. 454, 455 (2) (b) (415 SE2d 4) (1992) (“An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful. [Cits.]”).

Decided March 15, 2001

Reconsideration dismissed April 13,2001.

Grantham & Peterson, William M. Peterson, for appellant.

Lewis Bogan, pro se.

Kelly R. Burke, District Attorney, Elaine L. Smith, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J, and Miller, J., concur.

       Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

        Jackson v. State, 243 Ga. App. 289, 293 (3) (h) (531 SE2d 747) (2000).

       Pertinently, the State’s motion in limine
      request[ed] that defendant be prohibited from discussing any of the State’s witnesses’ prior arrests, having been suspected or accused of committing any crimes, or any other basis of “bad character,” absent a showing, outside the presence of the jury, that such areas are legitimate areas that can be explored by [defendant.


author: Eldridge, Judge.

text:
    A99A1980, A99A2150.
    CROSBY et al. v. COOPER TIRE & RUBBER COMPANY; and vice versa.
    (548 SE2d 30)
    Decided April 13, 2001.

      Cathey & Strain, Edward E. Strain III, David A. Sleppy, James E. Staples, Jr., Cottingham & Porter, Sidney L. Cottingham, Robert L. Porter, Jr., for appellants.

      Drew, Eckl & Farnham, W. Wray Eckl, Melanie C. Eyre, Lucian Gillis, Jr., Watson, Spence, Lowe & Chambless, Dawn G. Benson, for appellee.
   Eldridge, Judge.

In Cooper Tire & Rubber Co. v. Crosby, 273 Ga. 454 (543 SE2d 21) (2001), the Supreme Court found that this Court erred in Crosby v. Cooper Tire & Rubber Co., 240 Ga. App. 857 (524 SE2d 313) (1999), “[in] ruling that the trial court was required to admit evidence of consumer claims honored by the tire manufacturer for tires manufactured at the tire plant where the tire involved in this action was manufactured.” Cooper Tire, supra, 273 Ga. at 454. The Supreme Court found that “[w]ithout an independent showing of a substantial similarity between the purported tire defect that caused the injuries in this case and the basis for the consumer claims that were honored by the manufacturer, this evidence was inadmissible.” Id. Therefore, we vacate that portion of our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment reversed and case remanded for new trial.

Blackburn, C. J., and Barnes, J., concur.


author: Ruffin, Judge.

text:
    A01A0145.
    MEYERS v. THE STATE.
    (547 SE2d 781)
   Ruffin, Judge.

Following a bench trial, the trial court found Blaine Meyers guilty of armed robbery. Meyers appeals, challenging the sufficiency of the evidence. Finding the evidence sufficient to support Meyers’ conviction, we affirm.

In reviewing Meyers’ challenge, we do not weigh the evidence or determine witness credibility. Instead, we review the evidence presented at trial in the light most favorable to support the trial court’s verdict and determine whether this evidence is sufficient to authorize a rational trier of fact to find Meyers guilty of armed robbery beyond a reasonable doubt.

Viewed in this light, the evidence shows that on the evening of the robbery, the victim, Marvin Quick, was at home watching television with his son and his girlfriend. Suddenly, the side door to Quick’s house was kicked open — it was Meyers and four of his companions who had gone to Quick’s house to rob him. Armed with guns and a baseball bat and cloaked in ski masks, Meyers and his cohorts entered the house. Once inside, Meyers and another individual went to the living room where they held Quick, his son, and his girlfriend at gunpoint. Meanwhile, the other thieves searched the house for items to steal. After taking $3,500, which was hidden under Quick’s mattress, and a handgun from a dresser drawer, all five fled the house and jumped into a waiting pickup truck.

Decided April 16, 2001.

Donald R. Donovan, for appellant.

James R. Osborne, District Attorney, Thomas J. Melanson, Assistant District Attorney, for appellee.

Fortunately, a police officer was driving by Quick’s house at the time and saw the thieves jump into the truck. Finding the circumstances “highly suspicious,” the officer followed the truck. After stopping the truck and watching one of its occupants flee and another discard firearms, the officer arrested Meyers and the others.

On appeal, Meyers asserts that this evidence is insufficient to support his conviction for armed robbery because there is no proof that he and the other thieves took property from Quick’s person or his immediate presence. Instead, Meyers argues, the evidence showed that “the property was taken from a bedroom, which was down the hall and perhaps (by witnesses’ guesses) more than thirty (30) feet from the alleged victim.” Although Meyers is correct that a conviction for armed robbery requires proof that the robber took “property of another from the person or the immediate presence of another,” the term “ ‘[immediate presence’ has been held to extend ‘fairly far,’ and robbery convictions are upheld even [when the theft occurs] out of the physical presence of the victim.” Considering that Quick was held at gunpoint in his living room while property was taken from his bedroom, the theft was not too far afield to be outside Quick’s immediate presence.

Judgment affirmed.

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

       Although not at issue in this appeal, Meyers was also convicted of three counts of aggravated assault, three counts of false imprisonment, four counts of burglary, and four counts of possession of a firearm during the commission of a crime.

       See Russell v. State, 230 Ga. App. 546, 549 (4) (497 SE2d 36) (1998).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       We note that, in violation of Court of Appeals Rule 27 (c), Meyers has not supported his enumerated error with any citations to the record. Though such deficiency is usually deemed an abandonment of the claimed error, we exercise our discretion and review the evidence in this case based on the record citations in the State’s brief.

       OCGA § 16-8-41 (a).

        Culver v. State, 230 Ga. App. 224, 231 (6) (496 SE2d 292) (1998).

       See id.; Welch v. State, 235 Ga. 243, 245-246 (1) (219 SE2d 151) (1975).


author: Smith, Presiding Judge.

text:
    A01A0162.
    HINKLE v. WOOLEVER.
    (547 SE2d 782)
   Smith, Presiding Judge.

In this appeal, we must consider whether a party to a divorce succeeded in deleting his wife’s designation as the beneficiary of his life insurance policy before his death. Because we find that the insured clearly evinced his intent to remove his wife as named beneficiary and took every possible affirmative act to do so before his death, we affirm the judgment of the trial court.

The parties have stipulated to the relevant facts. In July 1998, appellant Thelma Hinkle filed a complaint for divorce against Frank D. Hinkle. Mr. Hinkle answered the complaint in September 1998, noting the existence of the life insurance policy in dispute here and stating in part: “Defendant has been informed that he has to present a court order awarding him ownership of his policy before he can access any information on same. Therefore, Defendant requests the Court issue an order awarding him sole ownership of his policy so that he can change the beneficiary thereof.” In January 1999, Mr. Hinkle executed a will, in which he declared that he was in the process of divorce and, “[i]n consideration of this fact,” left his wife only certain specified items of personal property “in lieu of year’s support and any and all other claims she may have against my Estate.”

As Ms. Hinkle acknowledges, Mr. Hinkle corresponded with the insurer seeking to remove her as beneficiary of his policy. On May 15, June 22, and July 15,1998, he sent letters to the insurer requesting a change of beneficiary. On August 4, 1998, the insurer responded, apologizing for the delay and stating,

We cannot change the beneficiary designations nor delete the Rider for Thelma J. Hinkle because of divorce proceedings. We first need to establish the ownership of this policy. Since the Court can award the policy to either party in a divorce, we will need a copy of the entire Divorce Decree, including the property settlement, to verify the ownership.

On April 7, 1999, after the final hearing in the divorce but before entry of the written order, Mr. Hinkle again wrote the insurer requesting removal of Ms. Hinkle from the policy. The insurer responded that it required “a complete copy of your final Divorce Decree, including property settlement, to verify the ownership.”

Mr. Hinkle had known as early as the filing of his answer in the divorce action that he was suffering from throat and skin cancer; he died on July 31, 1999. On August 11, 1999, the trial court entered a final judgment and decree of divorce, nunc pro tunc March 16, 1999, the date of the final hearing. This judgment states in part: “The Defendant is declared the owner of the National Western Life Insurance Company Policy No. 0100711446 insuring his life. The Plaintiff is the declared owner of the rider on said policy insuring her life. Each party shall execute the necessary documentation to separate the rider from the principal policy.” On the same date, Mr. Hinkle’s attorneys forwarded a certified copy of the decree to the insurer.

When both the estate of Frank Hinkle and Ms. Hinkle made claims against the policy, this legal action ensued with Mr. Hinkle’s executor filing a motion for contempt and to enforce the divorce decree. The insurer requested an interpleader of the policy proceeds and was dismissed by consent order after paying the appropriate sum into court. The trial court issued an order noting that the parties had stipulated to the relevant facts and finding in favor of the estate of Frank Hinkle. This appeal followed.

Ms. Hinkle correctly notes that the general law in Georgia requires that an insured change the beneficiary of a life insurance policy before his death:

In the field of life insurance the law of this State recognizes the right of the insured to purchase with his own funds an insurance policy on his own life, to name a beneficiary to the proceeds of the policy payable at his death, and to reserve the right to change the beneficiary at any time during his life. In such a contract the beneficiary has no vested interest, but a mere expectancy, subject to be withdrawn by the insured at any time during his lifetime. But when the insured dies without changing the beneficiary, the person named in the policy as beneficiary has a vested title to the proceeds.

(Citations and punctuation omitted.) Taylor v. Aetna Life Ins. Co., 235 Ga. 630, 632 (2) (221 SE2d 45) (1975). Even in the event of a divorce decree and settlement agreement, the beneficiary of an insurance policy generally remains the same until a change of beneficiary is effected in accordance with the terms of the policy. Ward v. Phoenix Mut. Life Ins. Co., 201 Ga. App. 307 (410 SE2d 795) (1991).

But this general rule does not apply in all circumstances. For example,

[w]hen an insured is authorized by the insurance policy to change the beneficiary during his life, and the insured dies without having exercised the authority, the named beneficiary has a vested interest in the proceeds of the policy. If, however, the insured has done substantially all that is required of him, or all that he is able to do, to effect a change of beneficiary, and all that remains to be done is ministerial action of the insurer, the change will take effect though the details are not completed before the death of the insured. Some affirmative act, however, on the part of the member to change the beneficiary is required; his mere intention will not suffice to work a change of beneficiary.

(Citations and punctuation omitted.) Maxwell v. Britt, 171 Ga. App. 230, 231 (2) (319 SE2d 88) (1984); see also Mitchell v. Mitchell, 126 Ga. App. 664 (191 SE2d 587) (1972) (full concurrence as to this issue). In Faircloth v. Coleman, 211 Ga. 356 (86 SE2d 107) (1955), the insured requested a change of beneficiary form from the local office of the insurer and executed it sometime before his death. The petitioner alleged that the original form had been mailed to the insurer “but had been lost, destroyed, or misplaced in the mails.” Id. at 358. While acknowledging that a mere intention to change the beneficiary of a policy, without more, is insufficient to effect a change, the Supreme Court concluded that “[s]ince the insured did substantially all he could to change the beneficiary,” the trial court did not err in directing a verdict “upon the ground that there had been substantial compliance by the insured to change the beneficiary from his wife to his mother.” Id. at 361.

Here, Mr. Hinkle and his attorneys did everything within their power to effect a change of beneficiary. Mr. Hinkle wrote the insurer on at least four occasions asking that the change be made. The insurer responded that it must receive a copy of the final judgment and decree in the pending divorce action first. Although Ms. Hinkle argues that Mr. Hinkle did not do substantially all that was required of him because he did not fill out a “change of beneficiary form,” nothing in the record shows that Mr. Hinkle was required to complete such a form or given an opportunity to do so. In response to Mr. Hinkle’s persistent inquiries, the insurer requested only a copy of the divorce decree, which was forwarded to the insurer by Mr. Hinkle’s attorneys the very day the decree was entered.

Mr. Hinkle’s attorneys obtained an oral ruling in the divorce action but were unable to obtain the required written decree until after Mr. Hinkle’s death. Mr. Hinkle also indicated his intention to change the beneficiary of the insurance policy in his answer to the divorce complaint, requesting that the trial court enter the necessary order so that he could satisfy the insurer’s requirement. This was “all that he [was] able to do” within the meaning of Maxwell, supra, until the court provided him with the written order.

Since the record demonstrates that Mr. Hinkle “did substantially all he could to change the beneficiary,” Faircloth, supra at 361, and that Mr. Hinkle’s fulfillment of all the necessary requirements was prevented only by his impending death in conjunction with a delay in obtaining a written order in the divorce action, the trial court did not err in finding substantial compliance and in awarding the proceeds of the policy to Mr. Hinkle’s estate.

Decided April 16, 2001.

Murl E. Geary, for appellant.

Jerrell T. Hendrix, Carl M. Nelson, Jr., for appellee.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       By entering the written order nunc pro tunc, the trial court caused the written dismissal to relate back to March 16, the date of the hearing and its oral ruling. See Franklin v. State of Ga., 227 Ga. App. 30, 31, n. 1 (488 SE2d 109) (1997). But while the nunc pro tunc entry made the divorce and the award of the policy to Mr. Hinkle effective as of that date, it did not enable Mr. Hinkle to receive and forward to the insurer the required physical copy of the order earlier than August 11.