author: Johnson, Judge. Andrews, Judge,

text:
    A94A2187.
    In re SHAFER.
    (455 SE2d 421)
   Johnson, Judge.

Herbert Shafer, an attorney, appeals from the judgment of contempt entered against him by Judge David T. Emerson of the Douglas County Superior Court.

The only record before this court is the trial court’s June 20,1994 order holding Shafer in contempt. The order reflects the following: At a June 20, 1994 calendar call, the trial judge admonished Shafer regarding improper use of the court’s subpoena power and cautioned him to deal with witnesses in a professional manner in accordance with State Bar rules. In response, the order indicates that Shafer “proceeded to make numerous remarks concerning his resentment of the treatment he had received from the court . . . [and] through his words, conduct and demeanor in open court exhibited disrespect for this court and its authority.” The order further recites that, “[u]pon that conduct,” the trial judge found Shafer in contempt and ordered that he be held in the custody of the sheriff until 8:00 p.m. of that same day and fined the sum of $250.

It is clear from the trial court’s order (and from the briefs before this court) that, based on Shafer’s conduct in the presence of and observed by the trial judge, Shafer was summarily adjudicated and punished for direct (i.e., committed in the judge’s presence) criminal (i.e., punitive rather than remedial) contempt of court. The power to summarily adjudicate and punish for direct criminal contempt is derived from the court’s authority to maintain courtroom order and decorum. “During trial, a trial judge has the power, when necessary to maintain order in the courtroom, to declare conduct committed in his presence and observed by him to be contemptuous, and, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing.” Dowdy v. Palmour, 251 Ga. 135, 141-142 (304 SE2d 52) (1983). “A trial judge may find an attorney in contempt of court without trial by jury where the penalty actually imposed does not exceed six months.” Id. at 141; OCGA § 15-7-4 (5).

1. In his first enumeration of error, Shafer contends that the contempt order is deficient on its face in that it fails to set forth the facts upon which the trial court concluded that he was guilty of contempt. The order sets forth the trial judge’s conclusions regarding Shafer’s conduct but does not give any factual description of the conduct itself and we have no transcript of the calendar call at which the allegedly contumacious behavior occurred.

In a summary contempt proceeding, objectively observable and describable behavior that causes an articulable interference with the administration of justice must be demonstrably present. Both the bad conduct and its adverse impact must be set forth with specificity in the ruling by the court that finds as a matter of fact that no justification exists for the alleged contemnor’s behavior. If these procedural steps are taken verbally, as is usually the case with a court trying to restore some immediate order in its proceedings, the judge must as soon as possible create a written record that preserves the following: (1) the notice to the perpetrator of the offensive conduct subject to being viewed as contemptuous due to its actual or imminent adverse impact; (2) a detailed description of the bad acts committed or omitted by the perpetrator despite a contemporaneous warning by the court to refrain; (3) an explanation of the deleterious impact on the court’s operations or its integrity; (4) a recitation of the perpetrator’s reasons given as justification for the questionable conduct; (5) a finding of fact by the judge of direct conduct interfering with the court’s administration of justice, or imminently threatening such consequences; and (6) an order declaring the respondent in contempt of court and imposing a statutorily authorized sanction. Because the order does not sufficiently set forth the words or acts or circumstances upon which the trial judge found Shafer in contempt, we are unable to review the court’s judgment to determine whether the evidence was sufficient for the trial court to conclude beyond a reasonable doubt that Shafer was guilty of conduct constituting direct criminal contempt for which summary adjudication and punishment was authorized. See Garland v. State, 99 Ga. App. 826 (110 SE2d 143) (1959); In re Bryant, 188 Ga. App. 383, 384 (373 SE2d 74) (1988).

Because, in effect, the trial judge is the judge, jury and executioner with regard to direct, summary contempt findings, it is imperative for purposes of review that the record clearly reflect the behavior of both the court and the offender. Here, the trial judge did not contemporaneously set forth with specificity those comments or actions which it found objectionable, summarily stating in its order: “Mr. Schaefer (sic) them (sic) proceeded to make numerous remarks concerning his resentment of the treatment he had received from the court. Mr. Schaefer through his words, conduct and demeanor in open court exhibited disrespect for this court and its authority.” This summary order, unsupported by a properly perfected record, is insufficient for appellate review. Neither do we believe that the deficiency in perfecting the record can be cured on remand. Remand is only appropriate in those cases where there was a proper record made at the time and the order is inadequate but could be made adequate upon review of the existing record. In cases such as this, where no record was properly made below, remand is clearly inappropriate.

This case is similar to In re Adams, 215 Ga. App. 372 (450 SE2d 851) (1994), a case in which the events which triggered the courtroom behavior which the trial court claimed constituted the contempt actually occurred sometime previously. In Adams, it was alleged fraudulent modification of an accusation form, here, an alleged misuse of the court’s subpoena power. In Adams, this court pointed out that if it is the underlying contempt the court wishes to address, the proper procedure to be followed must include being cited for contempt, notice of a hearing before another judge, the opportunity to be represented by counsel and to call witnesses on his behalf. Here, the trial judge, by his own admission, publicly admonished Shafer regarding his use of subpoenas, intimating that it was contemptuous. Shafer’s frustration with having been denied due process, if in fact, the judge intended to find him in contempt for his previous actions is understandable. We do not in any way intimate here that Shafer’s subsequent behavior, whatever it was, was becoming of an officer of the court.

“[T]his Court is compelled, on review of an appeal of a criminal contempt conviction, to utilize the standard of whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.” In re Smith, 205 Ga. App. 857, 858 (424 SE2d 45) (1992). To the extent that we have no competent evidence before us for review, and the creation of competent evidence at this point, raises a specter of unreliability, Shafer’s contempt must be reversed.

2. In light of our holding in Division 1 above we decline to address Shafer’s remaining allegations of error.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Pope, P. J., Blackburn and Smith, JJ., concur. Beasley, C. J., Andrews and Ruffin, JJ., concur in part and dissent in part.

Andrews, Judge,

concurring in part and dissenting in part.

I agree with the majority’s conclusion that this case involved summary adjudication and punishment for direct criminal contempt. As the majority states: “During trial, a trial judge has the power, when necessary to maintain order in the courtroom, to declare conduct committed in his presence and observed by him to be contemptuous, and, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing.” Dowdy v. Palmour, 251 Ga. 135, 141-142 (304 SE2d 52) (1983).

I further agree that, because the trial court’s order failed to sufficiently set forth the words, acts, or circumstances upon which the court based its judgment of contempt, this court cannot review the trial court’s judgment under the reasonable doubt standard, and the judgment of contempt must be reversed.

I disagree, however, with the majority’s conclusion that a remand is inappropriate because there is no existing record or transcript of the allegedly contemptuous behavior made at the time of such behavior. This court has held that, where the judgment of contempt does not contain facts sufficient for appellate review, a remand for the purpose of allowing the trial court to set forth the facts is the appropriate procedure. Garland v. State, 99 Ga. App. 826 (110 SE2d 143) (1959); Garland v. State, 101 Ga. App. 395 (114 SE2d 176) (1960); Spruell v. State, 145 Ga. App. 720 (244 SE2d 636) (1978); Spruell v. State, 148 Ga. App. 99 (250 SE2d 807) (1978); Jordan v. Hodges, 162 Ga. App. 473 (291 SE2d 778) (1982).

The majority holds that a reviewable record of the events cannot be reconstructed on remand where there is no transcript of the events, and the trial court did not contemporaneously create an adequate written record describing the events. To the contrary, reconstruction of the record on remand comports with the procedures set forth in OCGA § 5-6-41 for preparation of a record from recollection. “Where a trial is not reported as referred to in subsections (b) and (c) of this Code section or where for any other reason the transcript of the proceedings is not obtainable and a transcript of evidence and proceedings is prepared from recollection, the agreement of the parties thereto or their counsel, entered thereon, shall entitle such transcript to be filed as a part of the record in the same manner and with the same binding effect as a transcript filed by the court reporter as referred to in subsection (e) of this Code section. In case of the inability of the parties to agree as to the correctness of such transcript, the decision of the trial judge thereon shall be final and not subject to review; and, if the trial judge is unable to recall what transpired, the judge shall enter an order stating that fact.” OCGA § 5-6-41 (g).

Under OCGA § 5-6-41 (g), the trial judge is empowered to act as the final arbiter in any reconstruction of a description of unreported events. The judge’s recollection is final unless the judge enters an order stating that he or she is unable to recall what transpired. The section obviously contemplates that, if the trial judge is able to recall, the decision of the judge is final as to disputed matters involving the parties and the court. There is no reason to hold that trial judges involved in direct summary contempt proceedings are not allowed on remand to recall what happened in front of them in the trial court.

Decided March 17, 1995.

Herbert Shafer, pro se.

Spruell & Dubuc, Billy L. Spruell, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Moreover, this case is not, as the majority states, like In re Adams, 215 Ga. App. 372 (450 SE2d 851) (1994). There, we held that the case was not properly one for imposition of summary contempt, because it was clear that the trial court held Adams in contempt, not for present conduct observed by the court, but for conduct which occurred 21 days earlier. Accordingly, we found that Adams was entitled to notice of the charges, and a hearing before another judge. See Strayhorn v. Staley, 177 Ga. App. 458 (339 SE2d 740) (1986); In re Gouge, 206 Ga. App. 462, 464-465 (425 SE2d 882) (1992); Dowdy, supra at 141-142. Here, the contempt order shows that the trial judge’s inquiry into Shafer’s conduct in the prior matters was not a basis for the court’s finding of contempt. The only action taken by the trial judge as a result of Shafer’s prior conduct in these matters was to verbally caution Shafer. Shafer’s reaction to this caution, in the presence of the court, was the basis for the judge’s finding that he was guilty of direct criminal contempt of court. Under these circumstances, Shafer was only entitled to be given an opportunity to speak in his own behalf prior to the court’s announcement of summary punishment for contempt. Dowdy, supra at 141-142. Accordingly, I disagree with the majority’s suggestion that Shafer was deprived of any due process rights to notice of charges or a hearing.

This case should be reversed and remanded for the trial court to set forth the specific facts upon which the judgment of contempt was based, if the trial judge recalls.

I am authorized to state that Chief Judge Beasley and Judge Ruffin join in this dissent.

       Shafer was cautioned for his conduct in two separate incidents recounted in the trial court’s order. First, Shafer subpoenaed various law enforcement officers and their investigative files to the court’s calendar call on June 13, 1994, even though the June 13 calendar call was held, not for the purpose of considering testimony or evidence, but merely to ascertain whether or not cases would be ready for trial on June 20, 1994. Second, at the June 20 calendar call, the State’s attorney brought to the court’s attention that a witness present in court pursuant to a subpoena issued by Shafer was complaining about how she had been treated by Shafer. On inquiry into the matter, the trial judge was informed that Shafer had engaged in a heated discussion with the witness’ employer and had informed the employer that he would subpoena “his ass to court.” Shafer confirmed to the trial judge that the incident with the witness’ employer had occurred and that he had used the above quoted language. Shafer was not found in contempt for these two incidents. Rather, as the trial court’s order indicates, the judge decided to caution Shafer based on a concern that Shafer had improperly used the court’s subpoena power in these incidents to inconvenience the law enforcement officers and to harass or threaten a potential witness.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A94A2199, A94A2200.
    WILLIS v. ARATEX SERVICES, INC.; and vice versa.
    (455 SE2d 415)
   Pope, Presiding Judge.

Plaintiff Michael Willis was recruited for the position of General Manager Trainee by one of defendant Aratex Services, Inc.’s (Aratex) area presidents, Karl Fillip. Plaintiff was presented with an “offer of employment” (the Offer) dated March 26, 1990. The Offer consisted of a form letter that specifically set forth detailed information regarding various insurance benefits, including ARA Travel Insurance (Travel Insurance), and other benefits available to employees of Aratex. On April 1, 1990, plaintiff signed and accepted the Offer.

Plaintiff started work with Aratex on April 30, 1990, at which time he had an orientation session with Aratex’s Human Resource Manager, Ginny Paterni. During this session plaintiff received a document entitled “Benefits Handbook.” Like the Offer, this document listed various benefits available to Aratex employees, including the Travel Insurance policy. Plaintiff also signed an “Employment Agreement” (the Agreement) at this time. Aratex contends that the Agreement, which does not mention the above benefits, superseded the Offer. On August 12, 1990, while traveling on an airplane, plaintiff contends he was injured, and as a result has become permanently disabled. Plaintiff made a claim for permanent disability benefits under the Travel Insurance policy. His claim was denied. Subsequently he learned, and Aratex has admitted, that the Travel Insurance policy had been cancelled by Aratex prior to the date the Offer was made to plaintiff. Both Fillip and Paterni deposed that they were not aware of this fact at the time the Offer was extended to plaintiff.

On April 29, 1993, plaintiff filed suit against Aratex for breach of contract and for fraud. On September 22, 1993, Aratex moved for summary judgment contending that plaintiff’s claims were preempted by ERISA; that plaintiff was not entitled to recovery because the Agreement superseded the Offer; and that plaintiff would not have been entitled to recovery under the Travel Insurance policy even if the policy had been in effect. On February 1, 1994, plaintiff dismissed his fraud allegation, and moved for summary judgment as to each of the matters set forth in Aratex’s motion for summary judgment. By order dated May 4, 1994, the trial court denied plaintiff’s motion for summary judgment and granted summary judgment to Aratex based on its contention that ERISA preempted plaintiff’s breach of contract claim. However, in its order, the trial court specifically rejected the other arguments asserted by Aratex. Plaintiff’s appeal of the trial court’s denial of his motion and the trial court’s grant of Aratex’s motion was docketed in this court as Case No. A94A2199. Aratex’s cross-appeal as to that portion of the trial court’s order rejecting Aratex’s alternative summary judgment arguments was docketed in this court as Case No. A94A2200.

Case No. A94A2199

1. Plaintiff contends that the trial court erred in holding that plaintiff’s state law claim for breach of contract was preempted by ERISA. We disagree and affirm. “ ‘With the exception of four narrow exclusions not relevant to this action, Congress has mandated that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan (. . .)” 29 USC § 1144 (a); Whitaker v. Texaco, Inc., 566 FSupp. 745, 748 (N.D. Ga. 1983). “The term ‘State law’ includes all laws, decisions, rules, regulations, or other State action having the effect of law,” 29 USC § 1144 (c) (1), and any state law having “a connection with or a reference to” an employee benefit plan covered by ERISA is preempted. Shaw v. Delta Airlines, 463 U. S. 85, 97 (103 SC 2890, 77 LE2d 490) (1983).’ ” Norton v. North Ga. Foods, 211 Ga. App. 684, 685 (440 SE2d 263) (1994).

In this case, plaintiff contends that cancellation of the Travel Insurance policy prior to the time he started work negates the very existence of an ERISA covered benefit plan. Consequently, plaintiff asserts that his breach of contract claim cannot be said to relate to such a plan. This contention fails to take into account the distinction between the existence of a benefit under an ERISA covered plan, and the existence of the plan itself. “ERISA applies, inter alia, to any ‘employee welfare benefit plan,’ which is defined as ‘any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer ... to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits[, or benefits in the event of sickness, accident, or disability].’ 29 USC 1002 (1).” Time Ins. Co. v. Roberts, 191 Ga. App. 766, 767-768 (1) (382 SE2d 718) (1989). “[A] plan, fund, or program under ERISA is established if from the surrounding circumstances a reasonable person can ascertain the intended benefits, a class of beneficiaries, the source of financing, and procedures for receiving benefits.” (Citation and punctuation omitted.) Williams v. Wright, 927 F2d 1540, 1543 (11th Cir. 1991). Applying the above criteria to the case at bar, it is clear from a review of the Offer and Benefits Handbook that Aratex did in fact have an ERISA covered benefit plan in place at the time plaintiff started work. It also is clear that the Travel Insurance was listed as an intended benefit under said plan.

In determining whether plaintiff’s breach of contract claim relates to Aratex’s ERISA benefit plan, we note that the “relate to” language of 29 USC § 1144 (a) has been broadly interpreted by the United States Supreme Court. See Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 138 (111 SC 478, 112 LE2d 474) (1990); see Nat. Treasury Employees Union v. Macon-Bibb County Hosp. Auth., 213 Ga. App. 724-725 (1) (445 SE2d 777) (1994). “[A] state law cause of action ‘relates to’ an employee benefit plan if the employer’s conduct giving rise to such claim was not ‘wholly remote in content’ from the benefit plan.” (Citation omitted.) Farlow v. Union Central Life Ins. Co., 874 F2d 791, 794 (11th Cir. 1989). In the case at bar, plaintiff’s claim arises out of Aratex’s failure to provide plaintiff with insurance benefits promised to him as part of a comprehensive benefit plan maintained by Aratex. Therefore, the conduct giving rise to plaintiff’s breach of contract action is not merely tenuously related to or wholly remote in content from the benefit plan. Moreover, the calculation of damages for the breach plaintiff asserts here further demonstrates the relationship between his claim and Aratex’s benefit plan. See Sanson v. Gen. Motors Corp., 966 F2d 618, 621 (11th Cir. 1992). Accordingly, plaintiffs claim is not beyond the preemptive reach of ERISA.

Decided March 17, 1995.

Zipperer & Lorberbaum, Ralph R. Lorberbaum, Janet S. Foerster, for appellant.

Jones, Day, Reavis & Pogue, W. Lyman Dillon, David M. Monde, Painter, Ratterree & Bart, R. Clay Ratterree, for appellee.

Case No. A94A2200

2. In light of our holding in Division 1 of this opinion, we need not consider the matters set forth in Aratex’s cross-appeal.

Judgments affirmed.

McMurray, P. J., and Smith, J., concur.


author: McMurray, Presiding Judge.

text:
    A94A2219.
    FIRST UNION NATIONAL BANK v. BOYKIN et al.
    (455 SE2d 406)
   McMurray, Presiding Judge.

Superior Yarn Dyeing, Inc. (“Superior Yarn” or “the company”) entered into a loan agreement with First Union National Bank (“First Union”) in November 1988 with a principal amount of $400,000, plus a $250,000 line of credit. This loan was secured via the company’s assets and separate guaranty agreements executed by the president of Superior Yarn, John Boykin, and Michael L. Percy, a major stockholder of the company. The guaranty Boykin executed provides for unlimited personal liability and the guaranty Percy executed provides for personal liability up to $100,000, “plus all interest or Finance charges, Costs of Court, penalty interest, late payment charges and the reasonable attorneys’ fees of [First Union].” Superior Yarn subsequently defaulted on the loan and First Union liquidated the assets of the company. Claiming a deficiency, First Union brought an action against defendants Boykin and Percy under their guaranty agreements for $92,729.61 in unpaid principal, attorney fees and interest.

At a jury trial, the issue of the amount and propriety of the alleged deficiency remaining under the loan agreement was disputed and the jury was properly charged in this regard. Also in dispute was whether First Union discharged defendant Percy as a co-surety (apparently with defendant Boykin’s consent) and whether First Union waived material terms of the loan agreement, thereby discharging the guarantors via novation. See OCGA § 10-7-21. In this regard, defendant Percy testified that he and defendant Boykin met with a representative of First Union in November 1990 to discuss Superior Yarn’s violation of certain loan covenants (apparently) relating to the company’s insolvency and that First Union then insisted upon infusion of additional capital into the company in order to prevent declaration of a default under the loan agreement. Defendant Percy testified that he responded to First Union’s demand by supplying Superior Yarn with $50,000 in cash and by taking steps to convert $80,000 the company owed him into corporate stock. Defendant Percy explained that he provided this capital in exchange for First Union’s waiver of default under the loan agreement and promise to “satisfy any obligations [he] had to the bank. . . .” First Union countered by introducing evidence of a follow-up letter posted to defendant Percy wherein he affirmed (via execution and return of the letter to First Union) that consideration for the capital-infusion transaction did not include First Union’s promise to discharge obligations related to the limited guaranty he executed. This letter pertinently provides as follows: “Your purpose and reasoning for offering this financial support to Superior [Yarn is] to assist the company by providing needed working capital, obtain a waiver of certain loan covenant violations, and if no other shareholder should elect to acquire like amounts of the company’s stock, a greater position of ownership in Superior Yarn Dyeing, Inc.”

Upon the conclusion of evidence, the parties did not request nor did the trial court charge the jury as to any aspect of defendants’ liability as co-guarantors. The only instructions relating to defendants’ liability under the guaranty agreements (other than the amount and propriety of the alleged deficiency under the loan agreement) were as follows: “Any change in the nature or terms of a contract is called a novation, and such novation, without the consent of the surety, discharges him. . . . While a stipulation of a contract may be waived by the conduct of the parties, the intent of the parties must be mutual. ... I charge you that the Defendant carries the burden to establish the existence of his affirmative defense [of] accord and satisfaction. . . . And I charge you that an accord and satisfaction must be of some advantage, legal or equitable, to the creditor, or it shall not have the effect of barring him from his legal rights under the original agreement.” The trial court then provided the jury a special verdict form with spaces (if found to be applicable) for entry of separate verdicts against defendant Boykin and defendant Percy. Neither First Union nor defendants objected. First Union’s only complaints to the trial court’s charge were expressed via a general objection (without supporting argument) to the trial court’s charge on the law of novation and an objection that the trial court failed to give the following written request to charge: “To be effective, a notice of revocation of a guaranty agreement must be in strict and full compliance with provisions of the guaranty contract calling for notice, must be clearly expressed, unqualified, positive, and absolute.”

The jury returned a special verdict against defendant Boykin for $84,750 and defendant Percy for $28,250. When the trial court solicited objections to the verdict, First Union agreed that the form of the verdict was proper. The jury was then allowed to disperse. This appeal followed entry of judgment on the jury’s verdict and denial of First Union’s motion to amend the verdict or, alternatively, for a new trial. Held:

1. First Union contends the trial court erred in failing to amend the jury’s verdict to reflect defendants’ liability as guarantors of the same principal and the same debt, reasoning that the verdict should be molded to accomplish judgment against defendants, jointly and severally, for the aggregate sum of the jury’s award, i.e., $113,000. Alternatively, First Union contends the trial court should have granted a new trial because the verdict illegally apportioned damages among joint and several obligors.

The undisputed evidence reveals that defendants Percy and Boykin contemporaneously executed guaranty agreements in favor of a common principal (Superior Yarn) to insure performance of the same duty or obligation, thus binding them (as a matter of law) jointly and severally to the limit of defendant Percy’s personal liability of $100,000, “plus all interest or Finance charges, Costs of Court, penalty interest, late payment charges and the reasonable attorneys’ fees of [First Union].” See Snow v. Brown, 100 Ga. 117, 120 (28 SE 77); 72 CJS, Principal & Surety, § 277 (c). See OCGA § 10-7-50. However, the jury was never directed to embrace the issue of defendants’ joint and several liability and, as a consequence, entered varying awards against defendants Boykin and Percy which appear to be inconsistent as a matter of law and as a matter of fact. Unfortunately, there is no indication in the jury’s verdict that the aggregate amount of the differing awards equal the sum of defendants’ joint and several obligation. Consequently, since the jury dispersed before clarifying this substantive issue, the trial court lost authority to correct or otherwise amend the seemingly inconsistent verdict. See MARTA v. Tuck, 163 Ga. App. 132, 137 (2) (292 SE2d 878). This, however, does not mean that the judgment entered on the verdict must be set aside and a new trial ordered as to defendants’ liability. A similar situation arose in LaBanz v. Bank South, Macon, 198 Ga. App. 79, 81 (1), 82 (400 SE2d 357), where there was no challenge to a seemingly illegal apportioned verdict before dismissal of the jury. This court held as follows:

“ ‘(W)here “an inconsistent and void verdict is returned by the jury, it is proper for the trial judge to refuse to receive the verdict, and to require them to return for further deliberations, under proper instructions. (Cits.)” Thompson v. Ingram, 226 Ga. 668, 671 (2) (177 SE2d 61) (1970). See OCGA §§ 9-12-4; 9-12-8.’ Kemp v. Bell-View, 179 Ga. App. 577, 581 (4) (346 SE2d 923) (1986). However, ‘(u)pon hearing an improper verdict rendered, a litigant should not sit silently by, hoping to gain a retrial by failing to object. Todhunter v. Price, 248 Ga. 411 (1) (283 SE2d 864) (1981).’ Clifton v. Clifton, 249 Ga. 831, 832 (294 SE2d 518) (1982).” LaBanz v. Bank South, Macon, 198 Ga. App. 79, 81 (1), 82, supra. The same result was reached in Ray v. Stinson, 254 Ga. 375 (329 SE2d 502), where the parties failed to object to or otherwise seek to cure a special verdict (before dismissal of the jury) which was purportedly in excess of the amount of damages proved at trial. Id. at 375. Similarly, in the case sub judice, First Union not only failed to object to the seemingly inconsistent verdict before the jury was dismissed, it agreed that the special verdict consisting of separate awards to defendants was correct as to form. Further, First Union neither requested an instruction as to defendants’ joint and several liability as co-guarantors up to the limit of defendant Percy’s limited liability, nor did it object when the trial court instructed the jury to return (if applicable) separate awards as to defendants Boykin and Percy. These omissions along with First Union’s failure to move for the directed verdict as to defendants’ liability as joint and several obligors amounted to a waiver as to the form of the seemingly inconsistent verdict. See Ray v. Stinson, 254 Ga. 375, supra; LaBanz v. Bank South, Macon, 198 Ga. App. 79, 81 (1), supra. Consequently, the trial court did not err in denying First Union’s motion to amend the verdict or, alternatively, for a new trial.

2. In its second enumeration of error, First Union contends the trial court erred in allowing defendants “to present evidence that [First Union] waived or did not enforce certain loan covenants against the principal debtor, Superior Yarn Dyeing, Inc.” To the same extent, First Union contends in its third enumeration that the trial court erred in giving a charge on the law of novation, citing Dunlap v. Citi zens &c. DeKalb Bank, 134 Ga. App. 893, 895 (4) (216 SE2d 651), in support of an argument that defendants consented in advance in the guaranty agreements to alleged waivers which otherwise would have discharged their obligations as guarantors. With similar reasoning, First Union contends in its final enumeration that the trial court erred in refusing to give its written request to charge that, “[t]o be effective, a notice of revocation of a guaranty agreement must be in strict and full compliance with the provisions of guaranty contract calling for notice, must be clearly expressed, unqualified, positive, and absolute.”

Decided March 17, 1995

Minor, Bell & Neal, Rickie L. Brown, Robert G. McCurry, for appellant.

Avrett, Ponder & Withrock, John T. Avrett, Mitchell & Mitchell, James H. Bisson III, William J. Kimsey, for appellees.

These enumerations provide no basis for reversal. The jury’s verdict in favor of First Union indicates rejection of claims that defendants are discharged under their guaranty agreements via waiver of any term under the principal’s loan agreement which materially altered defendants’ liability under the guaranty agreements. See OCGA § 10-7-21; Dunlap v. Citizens &c. DeKalb Bank, 134 Ga. App. 893, 895 (3), supra.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


text:
    A94A1919.
    SMITH v. REPUBLIC REALTY SERVICE, INC.
    (456 SE2d 55)
   Pope, Presiding Judge.

In this wrongful eviction action, tenant Smith appeals the trial court’s grant of summary judgment to landlord Republic Realty Service, Inc. We affirm.

Landlord brought a dispossessory proceeding against tenant for nonpayment of her July 1990 rent. In an order issued September 20, 1990, the magistrate court found for landlord and directed that if tenant appealed, she would have to pay the past due July rent ($435) into the court registry by September 30,1990, and would then have to pay her monthly rent into the court registry on the first day of every month for the duration of the appeal. See OCGA § 44-7-56. Although tenant appealed and paid her October rent on October 5, 1990, she apparently failed to pay the past due July rent as ordered. Landlord was therefore able to obtain an immediate writ of possession, and evicted tenant October 29, 1990.

Decided January 12, 1995

Reconsideration denied March 17, 1995

Boone, Papadakis & Levine, James J. Gormley III, Gregg Loomis, for appellant.

Fred J. Rushing, Jr., for appellee.

Tenant nonetheless pursued her de novo appeal on the issue of past due rent to the state court (see OCGA § 15-10-41 (b) (1)). There she was able to produce documentation showing she had in fact paid her July rent back in July. The state court thus found for tenant on the issue of back rent, and tenant then brought this action for wrongful eviction.

Even though the magistrate court’s order directing tenant to pay $435 into the court registry by September 30 was based on an erroneous finding that tenant’s July rent was unpaid, tenant was bound by that order and was not free to disregard it. See Golden Key Restaurant & Lounge v. Key Mgmt. Corp., 137 Ga. App. 251 (2) (223 SE2d 284) (1976). Accordingly, when tenant failed to pay into the court the monies required by the magistrate court’s order, tenant lost her right to possession of the premises and landlord was entitled to immediate possession. See Mitchell v. Excelsior Sales & Imports, 243 Ga. 813 (2) (256 SE2d 785) (1979). It follows that the eviction was not wrongful. Tenant still might have had a cause of action for malicious eviction if there were any evidence that landlord’s failure to record tenant’s payment was wilful and malicious rather than negligent, see, e.g., Mizell v. Byington, 73 Ga. App. 872 (38 SE2d 692) (1946); but the record fails to reveal any evidence of maliciousness.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A2105.
    BRYANT v. EMPLOYEES RETIREMENT SYSTEM OF GEORGIA.
    (455 SE2d 839)
   Pope, Presiding Judge.

In a divorce decree issued in 1992, plaintiff Harriet Bryant was awarded one-third of her ex-husband’s monthly retirement benefits. The ex-husband’s retirement benefits were administered by defendant Employees Retirement System of Georgia (“ERS”), and the divorce decree purportedly ordered ERS, a non-party to the divorce proceeding, to pay plaintiff one-third of each monthly payment her ex-husband was entitled to receive. Plaintiff brought an action to enforce this provision of the divorce decree against ERS as well as her ex-husband, but the trial court granted ERS’ motion to dismiss. We agree with the trial court that the court issuing the divorce decree could not properly order ERS to pay benefits to plaintiff directly, and therefore affirm.

There is no question that the ex-husband’s retirement benefits are marital property subject to equitable division. See Courtney v. Courtney, 256 Ga. 97 (2) (344 SE2d 421) (1986). The issue here is whether ERS may be ordered to transfer ownership of a portion of the benefits and pay them directly to plaintiff, or whether plaintiff must collect her share of the benefits from her ex-husband after he receives them.

Plaintiff argues that OCGA § 47-2-332 (a) is intended as a “spendthrift” provision to protect an employee’s benefits from his creditors only. We cannot agree with such a narrow reading of the statute. The language is quite expansive and prohibits any transfer of property rights in benefits, whether voluntary or by legal process. See Kirksey v. Teachers Retirement System of Ga., 250 Ga. 884 (3) (302 SE2d 101) (1983) (anti-attachment provisions of analogous Act render retirement benefits immune even from family support claims); Op. Atty. Gen. 77-18 (State employee cannot voluntarily transfer ERS benefits to spouse).

1. Under OCGA § 47-2-332, a State employee’s retirement benefits are exempt from attachment or other legal process and are not assignable. The court issuing the divorce decree nonetheless ordered the assignment of a portion of the ex-husband’s benefits, relying on the Retirement Equity Act of 1984, 29 USCA § 1056 (d). This portion of the federal statute provides that while benefits under a pension plan may not be assigned or alienated as a general matter, they may be assigned or otherwise transferred to an alternate payee pursuant to a “qualified domestic relations order.” The divorce court’s reliance on this provision was misplaced, however, as pension plans established for employees of state governments are expressly excluded from the Act’s coverage. See 29 USCA §§ 1003 (b) (1) & 1002 (32).

Moreover, even if the transfer of property rights in a portion of the ex-husband’s benefits was not explicitly precluded by OCGA § 47-2-332 (a), ERS would not be authorized to make such a transfer. As an administrative body created by the legislature, ERS “has only such powers as the legislature has expressly, or by necessary implication, conferred upon it.” Bentley v. State Bd. of Med. Examiners of Ga., 152 Ga. 836, 838 (111 SE 379) (1922). ERS was established “for the purpose of providing retirement allowances and other benefits under this chapter for employees of the state.” OCGA § 47-2-20. The power to transfer an employee’s benefits to another is neither expressly granted nor necessary to carry out this purpose. And contrary to plaintiff’s assertion, the use of the term “person” rather than “member” or “employee” in OCGA § 47-2-332 does not contemplate transfer of an employee’s rights in benefits to another; it simply recognizes that some benefits under the Act accrue to spouses or dependents of employees directly. See, e.g., OCGA § 47-2-128 (survivors benefits).

Decided January 13, 1995

Reconsideration denied March 17, 1995.

Fraser & Bussart, Mark S. Fraser, Sherman C. Fraser, for appellant.

Michael J. Bowers, Attorney General, Susan L. Rutherford, Senior Assistant Attorney General, Kenneth L. Drucker, for appellee.

Plaintiff calls our attention to cases from other jurisdictions in which state retirement systems have been ordered to pay benefits to a non-employee ex-spouse directly. See, e.g., Koelsch v. Koelsch, 713 P2d 1234 (9) (Ariz. 1986). However, these cases are distinguishable because they are from community property states. In those states the spouse’s benefits are jointly owned by both spouses as soon as they come into being during the course of the marriage; thus, no actual transfer of property rights is required to order the retirement system to pay the non-employee spouse directly. Moreover, these courts take a broader view of the powers of administrative agencies than we do. See Koelsch, 713 P2d at 1243 (“we see no reason why the retirement agencies should not send checks to both the employee and the non-employee spouses [because] [t]here is no language in the statute expressly precluding such an arrangement”). We are therefore not persuaded by these cases, and affirm the trial court’s dismissal of plaintiffs complaint against ERS. Of course, plaintiff may still pursue her complaint against her ex-husband.

2. Plaintiff also argues that, to the extent OCGA § 47-2-332 (a) prevents her from recovering benefits from ERS directly, it violates her right to equal protection. As plaintiff failed to secure a ruling on this constitutional issue below, however, it is not properly raised on appeal. See Wright v. Transus, 209 Ga. App. 771 (2) (434 SE2d 786) (1993).

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

       OCGA § 47-2-332 provides that rights “accruing to any person under this chapter” are exempt from tax and legal process, and are not assignable.


text:
    A94A2203.
    EDWARDS v. THE STATE.
    (456 SE2d 213)
   Pope, Presiding Judge.

Defendant entered guilty pleas to the offenses of statutory rape, child molestation and sodomy, and was sentenced to 18 years, 12 years to serve on the statutory rape charge, and to probation on the remaining counts. While defendant was serving the probated portion of his sentence, the State filed a petition to modify/revoke defendant’s probation because defendant refused to undergo sex-offender treatment after being instructed to do so by his probation supervisor. According to the State, this was a violation of the condition of defendant’s probation that he obey all instructions of his probation supervisor. The trial court subsequently entered an order modifying the conditions of defendant’s probation by requiring defendant to enter and successfully complete an appropriate sex-offender treatment program, to be paid for by defendant. Defendant appeals from that order, enumerating three errors.

1. Defendant acknowledges the trial court’s authority to require a sex offender to undergo treatment as a condition of a probated sentence, but argues that in this case the trial court was without authority to add this condition after he began serving his probated sentence. We reject this contention. “[U]nder OCGA § 42-8-34 (g), a sentencing judge is empowered to modify or change a probated sentence at any time during the term of probation. [Cits.] Consequently, since the defendant remained on probation after serving time in confinement, the trial court had authority to [modify the terms of defendant’s probated sentence so as to add the condition that defendant obtain treatment].” Taylor v. State, 181 Ga. App. 199 (1) (351 SE2d 723) (1986). See also State v. James, 211 Ga. App. 149, 150-151 (438 SE2d 399) (1993).

2. In a related argument, defendant contends his alleged violation of the condition that he obey the instructions of his probation supervisor could not be used as a basis for modifying his probated sentence, in that such condition was too vague and ambiguous to be enforceable. However, our holding in Division 1 establishes that the trial court retains authority to modify the conditions of probation whether or not there has been a violation of existing provisions. Thus, it is unnecessary for us to consider whether the alleged violation of the condition requiring defendant to obey the instructions of his probation supervisor constituted an additional basis for the modification in this case.

3. Defendant also contends that the addition of the condition that he obtain treatment constituted an impermissible increase in his sentence. We disagree. The purpose of the additional condition was clearly and completely rehabilitative, and cannot be logically construed to constitute the imposition of an additional punishment. Cf. Harris v. State, 261 Ga. 859 (413 SE2d 439) (1992). Defendant’s third enumeration is thus also without merit.

Decided January 12, 1995

Reconsideration denied March 17, 1995.

Scott K. Camp, for appellant.

David McDade, District Attorney, Jackie N. Stanton, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A2272.
    LISTER et al. v. SCRIVER.
    (456 SE2d 83)
   McMurray, Presiding Judge.

Plaintiffs Thomas J. Lister and 690019 Ontario, Ltd. (“Ontario”) brought an action against Richard L. Scriver (defendant), alleging defendant fraudulently induced a contract (“the agreement”) whereby plaintiffs subsequently assigned $150,000 to defendant for the purpose of establishing and directing the affairs of ACA Joe of Savannah, Inc. (“ACA Joe Savannah”), a corporation intended to operate under a franchise authorizing the establishment of a retail clothing store in Savannah, Georgia. Plaintiffs not only allege that defendant breached the agreement by failing to properly acquire and assign corporate assets, they also allege defendant (individually and as a corporate officer) misappropriated corporate assets and fraudulently carried out the business of ACA Joe Savannah in violation of his fiduciary duty to plaintiffs. Defendant admits entering into an agreement with plaintiffs whereby the parties agreed to enter into a joint corporate venture to develop a retail clothing store in Savannah, but denies any wrongdoing stemming from the transaction and alleges (via counterclaim) that plaintiffs misappropriated certain assets of ACA Joe Savannah after the business venture failed and upon dissolution of the corporation. Defendant also asserted accord and satisfaction as a defense, claiming the parties resolved their differences before ACA Joe Savannah was dissolved. The case was subsequently heard by a jury before hotly disputed evidence. The result was a verdict in favor of plaintiff Ontario for $177,549 and in favor of plaintiff Lister for $108,238. The jury found for the plaintiffs on defendant’s counterclaim. The evidence adduced at trial, construed in a light which favorably supports the jury’s verdict, reveals the following:

In the fall of 1985, defendant met with Norman Burkowski, Mark McLean and Dave Boushay (“principals”) in the City of Windsor, Ontario, Canada. He was seeking funding to open a retail clothing store in Columbus, Georgia, similar to several such establishments defendant operated in the Atlanta area. Specifically, defendant informed the principals that for $100,000 he would form a corporation to operate such a business; that he would also contribute $100,000 in cash to such a corporation; that the corporation would be formed with authority to issue 100,000 shares of stock; that the principals would own 50 percent of the stock (50,000 shares) and that he would be the exclusive owner of the remaining 50,000 shares of stock. The principals’ discussions with defendant continued through May 1986, principal Burkowski (apparently) acting as primary representative of the other principals.

In June 1986, the principals resolved to go through with the deal and agreed with defendant that Savannah, Georgia, would be the location of the proposed corporation’s retail establishment. In the meantime, and unknown to principal Burkowski, defendant was negotiating a similar $50,000 transaction with plaintiff Lister, formerly a sales clerk at a retail establishment owned by defendant in Ontario, Canada. Defendant promised that if plaintiff Lister could raise $50,000, he would provide plaintiff Lister with a corporate title, a job and 25,000 shares of corporate stock. Defendant suggested that plaintiff Lister obtain the money from his parents.

In June 1986, the principals formed plaintiff Ontario to consummate their agreement with defendant and, during the latter part of June, they traveled from Canada to view the location in Savannah chosen by defendant for the retail store. However, defendant did not make good on his promise to show the location of the Savannah store, instead taking the principals on tours of several ACA Joe Savannah retail establishments in the Atlanta area. The principals (apparently) did not then know that defendant had not yet acquired a site for the Savannah store.

In July 1986, defendant contacted principal Burkowski and advised him that $30,000 was needed to purchase a franchise for the proposed store in Savannah and that plaintiff Ontario’s contribution for the franchise would be $15,000. Plaintiff Ontario borrowed the money on a line-of-credit and delivered it to defendant. Unfortunately and unknown to plaintiff Ontario, defendant did not purchase the needed franchise for the retail store he planned to develop with plaintiff Ontario. Instead, he deposited the funds in his personal bank account and purchased franchise rights which were used for other stores developed by defendant in the Savannah area. Thereafter, defendant advised principal Burkowski that the $15,000 tendered for the franchise would be forfeited if plaintiff Ontario did not come up with the balance of the parties’ agreement and, to this extent, plaintiff Ontario borrowed aggregate sums totaling $85,000 secured by principal Burkowski’s home and real estate held by plaintiff Ontario. Defendant promised that he would personally guarantee these loans. However, when the parties memorialized their agreement in writing on August 1, 1986, defendant did not include such a guaranty. Instead, the agreement only provided that ACA Joe Savannah (which was not yet formally incorporated) would provide plaintiff Ontario with monthly dividends sufficient to service said loans.

On August 5, 1986, unknown to plaintiff Ontario, defendant executed a lease agreement in his individual capacity for the purpose of establishing the retail establishment contemplated during negotiaItions with plaintiff Ontario. This lease provides defendant with $80,000 to renovate the retail space and an additional $25,000 loan, apparently an incentive for negotiating the lease. Defendant deposited the $80,000 designated for improvement of the lease premises in his bank account.

On August 10, 1986, defendant entered into an agreement with plaintiff Lister whereby Lister raised $50,000 in cash (acquired in part via a loan secured by his parents’ home) and gave the money to defendant in exchange for 25,000 shares of ACA Joe Savannah, a job managing the retail establishment recently set up by defendant in Savannah and a promise of becoming a corporate officer. At that time, plaintiff Lister was unaware of the agreement between defendant and plaintiff Ontario. He was led to believe that defendant owned 50 percent of the corporate stock in ACA Joe Savannah. Thereafter, defendant deposited most of plaintiff Lister’s $50,000 contribution into his personal bank account and, on August 11, 1986, defendant formally incorporated ACA Joe Savannah.

Plaintiff Lister began managing an “ACA Joe” retail clothing store set up by defendant, working hard to overcome initial under-capitalization by defendant and depressed conditions at the shopping center where the store was located. The store managed by plaintiff Lister simply did not enjoy good pedestrian traffic and this deficiency was the result of unclean conditions at the shopping center and a corresponding low rate of occupancy by other retail tenants.

In June 1987, plaintiff Ontario first learned of defendant’s transactions with plaintiff Lister and principal Burkowski and immediately contacted defendant to investigate. Defendant gave no good explanation and, as a consequence, principal Burkowski (and apparently others) traveled to Georgia and met with defendant and plaintiff Lister to resolve the matter. It was later determined that the best course would be to move toward closing the ACA Joe Savannah retail store. Thereafter, plaintiffs and defendant agreed to dissolve the corporation and allow plaintiffs to take the remaining assets of the corporation, i.e., whatever cash remained, the store’s inventory and ACA Joe Savannah’s franchise. However, before execution of this agreement, principal Burkowski discovered that defendant never acquired a franchise for the “ACA Joe” store managed by plaintiff Lister. He therefore decided not to go through with the deal struck with defendant and, on January 22, 1988, called an emergency meeting of the stockholders of ACA Joe Savannah. It was then resolved, with defendant’s consent, to dissolve the corporation and liquidate its assets. Plaintiffs thereafter seized the assets of the corporation and used them in an unsuccessful attempt to establish another “ACA Joe” retail store in South Carolina.

After judgment was entered on the jury’s verdict, defendant filed a motion for judgment n.o.v. or, alternatively, for a new trial. The trial court granted both of these motions and this appeal followed. Held:

1. Plaintiffs contend the trial court erred in granting a judgment n.o.v., arguing the evidence was sufficient to sustain the jury’s verdict based on fraud, breach of fiduciary duty and accord and satisfaction.

“ ‘[T]he primary question for determination is whether the evidence introduced, with all reasonable deductions therefrom demanded a verdict for the defendant, as the standards for granting a motion for judgment n.o.v. are the same as those governing direction of a verdict. (Cits.) (T)he motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a “one-way” verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.’ Bryant v. Colvin, 160 Ga. App. 442, 444 (287 SE2d 238) (1981). ‘ “While it is erroneous for a court to direct a verdict in favor of a particular party to the cause where there is an issue of fact, when the proved facts, viewed from every possible legal point raised by the evidence, would sustain no finding other than the one directed, i.e., where there is no issue of fact, then it is error to refuse to direct an appropriate verdict. (Cits.) Further, in giving consideration to a motion for judgment notwithstanding the verdict, the court is concerned substantially with the same principles of law as are applicable upon consideration of the motion for directed verdict. The question for determination is whether or not the evidence demands a verdict for movant (cits.), and if there is no evidence to support the verdict returned, denial of the motion is error.” ’ City of Atlanta v. West, 160 Ga. App. 609 (2) (287 SE2d 558) (1981). ‘The standard for granting a directed verdict or a judgment notwithstanding the verdict are the same.’ Pendley v. Pendley, 251 Ga. 30 (302 SE2d 554) (1983).” Miller & Meier & Assoc. v. Diedrich, 174 Ga. App. 249, 250 (1) (329 SE2d 918), rev’d on other grounds at 254 Ga. 734, 735 (1) (334 SE2d 308).

(a) Fraud. “ ‘Fraud by one, accompanied with damage to the party defrauded, in all cases gives a right of action.’ Code § 105-301[, now OCGA § 51-6-1]. ‘Wilful misrepresentation of a material fact, made to induce another to act, and upon which he does act to his injury, will give a right of action. Mere concealment of such a fact, unless done in such a manner as to deceive and mislead, will not support an action. In all cases of deceit, knowledge of the falsehood constitutes an essential element. A fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended to deceive, is equivalent to a knowledge of the falsehood.’ Code § 105-302[, now OCGA § 51-6-2]. The elements essential to an action in tort for damages resulting from a material misrepresentation constituting fraud are: ‘(1) that the defendant made the representations; (2) that at the time he knew they were false (or what the law regards as the equivalent of knowledge); (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on such representations; (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made.’ Brown v. Ragsdale Motor Co., 65 Ga. App. 727, 728 (3) (16 SE2d 176). See also Brooke v. Cole, 108 Ga. 251 (33 SE 849), and Cosby v. Asher, 74 Ga. App. 884, 886 (41 SE2d 793).” McLendon v. Galloway, 216 Ga. 261, 263 (2) (116 SE2d 208).

In the case sub judice, plaintiffs presented evidence that defendant, at the time they purchased the stock in ACA Joe Savannah, did not inform them of the separate stock transactions involving plaintiff Ontario and plaintiff Lister; that defendant assured plaintiff Ontario there were no stockholders of ACA Joe Savannah other than himself (indicating the same to plaintiff Lister); that defendant affirmed plaintiff Ontario’s belief that he had made a $100,000 cash investment in the corporation and that defendant advised plaintiff Ontario that he needed $15,000 to purchase a franchise at a cost of $30,000. There was also evidence that defendant knew these representations were false; that defendant made these statements in order to induce plaintiffs to purchase the stock; that both plaintiffs purchased capital stock in ACA Joe Savannah because of their faith in defendant and because of their belief in the truth of his statements and that, by reason of the misrepresentations, ACA Joe Savannah’s retail operation was worth substantially less than the stated value (at the time of the stock transactions) of $200,000. Pretermitting other evidence authorizing a finding of deceitful conduct by defendant which damaged plaintiffs, this proof alone was sufficient to leave the question of fraud to the jury. See State Farm Fire &c. Co. v. Fordham, 148 Ga. App. 48, 50 (1), 51 (250 SE2d 843).

(b) Accord and Satisfaction. “ ‘Parties may settle frauds as well as anything else, if they act with knowledge of the facts; and such a settlement is as effectual when made by the parties, as when made by a court.’ Ham v. Hamilton, 29 Ga. 40, 42 (1859). See also Montgomery v. Morris, 32 Ga. 173 (3) (1861). ‘Even a fraud may be compromised, provided the party had knowledge of its existence, and entered into the agreement to have his rights springing from or growing out of it settled.’ Collins v. Collins, 165 Ga. 198 (4) (140 SE 501) (1927).” (Emphasis supplied.) Fraser v. C & S Bank of Fulton County, 166 Ga. App. 804, 805 (2) (305 SE2d 494).

In the case sub judice, defendant claims the evidence is undisputed regarding the parties’ resolution of all issues relating to his alleged deceitful acts. To this extent, we agree that it is undisputed that plaintiffs and defendant agreed to dissolve the corporation after discovery of defendant’s alleged deceit, all parties then agreeing to close the ACA Joe Savannah store and allow plaintiffs to take the remaining corporate assets. However, defendant’s assertion that this amounted to an accord and satisfaction (as a matter of law) ignores principal Burkowski’s testimony that he did not learn of defendant’s failure to acquire an ACA Joe franchise on behalf of ACA Joe Savannah until after the parties reached a settlement agreement. This term was certainly a material element of the parties’ settlement agreement. Accordingly, the issue of an accord and satisfaction was properly for the jury. See McLendon v. Galloway, 216 Ga. 261, 263 (2), 264, supra.

(c) Breach of Fiduciary Duty as Corporate Officer. Although there is evidence which would authorize a finding that defendant breached his duty as an officer of ACA Joe Savannah (see Quinn v. Cardiovascular Physicians, P. C., 254 Ga. 216, 217 (2) (326 SE2d 460)), we have difficulty determining whether a verdict would be proper in the case sub judice based on such liability since plaintiffs failed to press their stockholders’ derivative action (as set out in the pre-trial order) against defendant. See Quinn v. Cardiovascular Physicians, P. C., 254 Ga. 216, 218 (3), supra; Dunaway v. Parker, 215 Ga. App. 841, 845 (1) (453 SE2d 43). In any event, we deem it unnecessary to reach the issue in light of other holdings in this division. However, we note that defendant’s liability as a corporate officer may be reasserted at a new trial upon leave of the trial court. See Division 2 of this opinion.

The trial court erred in granting defendant’s motion for judgment n.o.v.

Decided March 17, 1995.

Teddy R. Price, William G. Maston, for appellants.

Glass, McCullough, Sherrill & Harrold, Geoffrey H. Cederholm Ill, for appellee.

2. Next, plaintiffs contend the trial court erred in granting defendant’s motion for new trial. We do not agree.

“Code Ann. § 6-1608[, now OCGA § 5-5-50] provides that ‘(t)he first grant of a new trial shall not be disturbed by the appellate court, unless the plaintiff in error shall show that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.’ [As we stated earlier, the facts are hotly disputed in the case sub judice and plaintiffs have] shown neither abuse of the trial court’s discretion [in this regard] nor legal and factual circumstances in this case which dictate judgment in [their] favor. ‘When a trial court grants separate motions for judgment notwithstanding the verdict and for new trial on the general grounds, we interpret the grant of the motion for new trial to be conditional on the appellate court’s vacating or reversing the judgment n.o.v. As the law and facts of this case do not demand a verdict for either party, this first grant of a new trial will not be disturbed on appeal.’ Helton v. Zellmer, 238 Ga. 735, 736 (235 SE2d 35) (1977).” Hicks v. American Interstate Ins. Co. of Ga., 158 Ga. App. 220, 225 (2) (279 SE2d 517).

3. The basis of plaintiffs’ contention regarding the trial court’s exclusion of rebuttal testimony of principal McLean is not likely to exist upon retrial. We therefore do not address this assertion.

4. In one enumeration of error, plaintiffs challenge the trial court’s refusal to give 12 requested jury instructions. We will not address this enumeration since it is deemed abandoned as it is not supported by specific argument or citation of authority. See former Court of Appeals Rule 15 (c) (2), now Court of Appeals Rule 27 (c) (2). Spivey v. Safeway Ins. Co., 210 Ga. App. 775, 778 (5) (437 SE2d 641). Further, these issues are an improper expansion of a single enumeration of error. Brown v. State, 205 Ga. App. 822 (1), 823 (423 SE2d 442).

5. Plaintiffs contend in a final enumeration of error that the trial court erred in directing the jury to disregard an earlier jury instruction covering plaintiffs’ purported right to recover for invalid issuance of corporate stock. See OCGA § 11-8-104 (1). We do not agree. Neither plaintiff Ontario nor plaintiff Lister asserted such a right of recovery in the pre-trial order.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Smith, J., concur.

       Defendant testified that he informed principal McLean of the $80,000 allowance for improvements of the lease premises and principal McLean was called in rebuttal to challenge this testimony. However, the trial court refused to allow principal McLean’s testimony because he was not listed as a witness on the pre-trial order. Plaintiff proffered the relevant rebuttal testimony outside the presence of the jury and moved for a mistrial.


author: Ruffin, Judge.

text:
    A94A2326.
    HELTON v. THE STATE.
    (455 SE2d 848)
   Ruffin, Judge.

In two trials Timothy Helton was convicted by a jury of five counts of reckless conduct and one count of simple battery. He appeals from the trial court’s denial of his consolidated motion for new trial.

Prior to being charged with the offenses in this case, Helton was incarcerated at the Jackson County Correctional Institute. While on a work detail, Helton escaped in a prison pickup truck. Shortly thereafter, a Jackson County sheriff’s deputy spotted Helton driving south on Interstate 85, turned on his blue lights and siren, and began pursuing the truck. The sheriff testified that Helton was driving at approximately 90 mph and was passing traffic by driving in the median strip and emergency lane. Other officers joined the pursuit and before Helton stopped several miles later, he hit three patrol cars, and four civilian cars.

Although Helton does not dispute the facts above, he asserted as his sole defense in both trials that the collisions were accidents and on appeal contends that the trial court erred in failing to charge the jury on this defense. OCGA § 16-2-2 provides that “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” (Emphasis supplied.) “ ‘Criminal negligence as used in the statutes of this State means not merely such negligence as might be the foundation of a damage suit, but reckless and wanton negligence and of such a character as to show an utter disregard for the safety of others who might reasonably be expected to be injured thereby.’ [Cit.]” Keye v. State, 136 Ga. App. 707, 708 (1) (222 SE2d 172) (1975).

Helton’s “own testimony belies his argument that failure to charge on accident is error in this case.” Gaston v. State, 209 Ga. App. 477 (1) (433 SE2d 306) (1993). During the second trial, Helton testified that he “was speeding down the highway, and . . . dodging traffic. [He] was not trying to hit anybody intentionally, but there was a lot of traffic on the highway.” He further testified that he “cared about people getting hit, but some people’s going to get hit when you’re speeding down the highway and they’re so many people around you.” Even by Helton’s own admission, it was obvious that he would most likely hit other cars while driving at such a high rate of speed and in such an erratic manner while in so much traffic; yet in utter disregard for the safety of the other drivers, he continued to evade the pursuing officers. “ ‘(E)very person is presumed to intend the natural and probable consequences of his conduct, particularly if that conduct be unlawful and dangerous to the safety or lives of others.’ ” Keye, supra at 708. Accordingly, despite Helton’s contentions that he did not intentionally collide with any of the other cars, his conduct clearly amounted to no less than criminal negligence. See Jordan v. State, 214 Ga. App. 598 (2) (448 SE2d 917) (1994). “Thus, notwithstanding [Helton’s] contention that accident constituted his sole defense, the trial court was not required to give a charge thereon since it was not authorized by the evidence.” (Citations and punctuation omitted.) Gaston, supra at 478.

Decided March 17, 1995.

Dauid L. Whitman, for appellant.

Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Smith, Judge. Beasley, Chief Judge, McMurray, Presiding Judge,

text:
    A94A2345.
    A94A2346.
    PERRY v. THE STATE. HUNTER v. THE STATE.
    (456 SE2d 89)
   Smith, Judge.

Aaron Perry and Carlton Hunter were indicted and convicted by a jury of kidnapping, OCGA § 16-5-40, and armed robbery, OCGA § 16-8-41. Their motions for new trial were denied, and they appeal.

1. Perry and Hunter enumerate as error the conduct of the trial court in removing them from the courtroom during the testimony of three rebuttal witnesses for the State. Out of the presence of the jury, the prosecutor informed the trial court that the witnesses were afraid to testify and feared for their lives. The trial court agreed to speak with the witnesses. Counsel for appellants objected to proceedings taking place out of the presence of their clients. The trial court overruled the objections and ordered appellants removed from the courtroom while the witnesses were examined.

Contrary to the dissent’s contention, the proceedings which took place while appellants were excluded clearly were not “a conference in chambers dealing solely with questions of law.” Three witnesses gave testimony out of the presence of the jury on the rebuttal issues for which the State had called them, primarily concerning the alibi of appellants’ co-defendant and communications with his attorney. This testimony was lengthy and, according to counsel for appellant Hunter, lasted almost three hours. However, only two of the witnesses testified with respect to any fear for their lives; both testified that no threats had been made against them and they were not fearful of the defendants, but rather were uneasy about testifying and about the judicial process in general. Two of the witnesses later testified before the jury to essentially the same substantive matters to which they testified earlier before the trial court. This was clearly not a “conference” on a “question of law,” but testimony given by three witnesses for the State.

The trial court erred in removing appellants from the courtroom, over objection, while witnesses testified for the State in a criminal prosecution. This is, on its face, a violation of appellants’ rights under the confrontation clauses of the Georgia and United States Constitutions, as well as their right to be present at their trial under Ga. Const. 1983, Art. I, Sec. I, Par. XII. “ ‘The accused and his counsel have the right to be present at every stage of the proceedings and personally see and know what is being done in the case. To say that no injury results when it appears that what occurred in their absence was regular and legal would, in effect, practically do away with this great and important right, one element of which is to see to it that what does take place is in accord with law and good practice.’ [Cits.]” Wilson v. State, 212 Ga. 73, 74-75 (90 SE2d 557) (1955) (new trial granted where defendant absent for portion of the State’s closing argument; counsel for defendant could not waive defendant’s presence without acquiescence). “We think that the right to be present at all stages of the trial ranks among the defendant’s most substantial rights. It ranks next in importance to, if not on a par with, his right to be presumed to be innocent until proved guilty . . . ‘The presence of counsel was no substitute for that of the [men] on trial. [Perry and Hunter] should have been present.’ [Cit.]” Pierce v. State, 47 Ga. App. 830, 831 (171 SE 731) (1933) (reversible error in failing to grant mistrial where defendant absent for portion of the State’s closing argument).

Appellants’ right to be present even during argument of counsel is unquestioned; certainly appellants had the right to be present while witnesses testified against them. Even if that testimony was ostensibly in the nature of a proffer, that does not transform those proceedings into a “conference,” as the dissent contends. The presence of the accused during actual testimony is crucial; he may identify inconsistencies or other problems in a witness’s testimony which are unknown to his attorney and may guide his attorney in effective cross-examination.

The cases cited by the dissent do not provide authority for this unprecedented and drastic curtailment of the right of confrontation. In Wanzer v. State, 232 Ga. 523, 526 (207 SE2d 466) (1974), appellant’s counsel initiated a motion for mistrial in the trial judge’s chambers without requesting the presence of his client, who was in the next room when the motion was made. However, appellant was present in the courtroom during the questioning of the jurors in connection with the motion. The Georgia Supreme Court held that under the particular facts presented the trial court did not err in denying the motion for mistrial. In Ortiz v. State, 188 Ga. App. 532, 535 (2) (374 SE2d 92) (1988), we approved the practice of allowing victims in child molestation cases to testify from a chair placed at an angle, so that they need not stare directly at the accused while testifying. However, the child victim in that case remained in full view and hearing of the accused, the court, and the jury. In Andrews v. State, 196 Ga. 84, 94 (26 SE2d 263) (1943), court-appointed counsel requested dismissal by the trial court in the presence of and with the consent of defendant’s retained counsel. The Georgia Supreme Court held that the trial court’s action in releasing appointed counsel, which the court described as “a gratuity to which the defendant had no right,” id., was not reversible error. In Gray v. State, 229 Ga. 808 (194 SE2d 479) (1972), the trial court belatedly realized the defendant was returning from lunch or a cigarette break as the district attorney began administering the oath to the jury. The trial judge immediately stopped the proceedings and reswore the jury in the defendant’s presence, and the Georgia Supreme Court held that “nothing occurred in the trial of the case in the absence of the appellant.” 229 Ga. at 809.

None of these cases deals with the primary focus of appellants’ right of confrontation: to be present and observe the witnesses testifying against them. Moreover, the cases cited by the dissent involve either an inadvertent absence from the courtroom or action initiated by defense counsel in his client’s absence. Here, the trial court itself acted to deprive appellants of “this great and important right,” over the objection of counsel.

We do not foreclose the possibility that other circumstances might warrant an inquiry into real and verifiable threats against a witness or require further action on the trial court’s part. However, it is undisputed that the witnesses here, when examined on the point, testified that no threats had been made against them and they were not in actual fear for their lives. What inquiries may be necessary and what remedies may be crafted to protect a witness from the threat of imminent physical harm, we reserve for decision when that issue is squarely presented. In this instance, however, the trial court erred in barring appellants from the courtroom during the testimony of three witnesses for the State, and therefore a new trial is required.

2. Appellants’ remaining enumerations of error need not be addressed, as they involve matters unlikely to recur on retrial.

Judgment reversed.

Birdsong, P. J., Pope, P. J., Andrews, Johnson, Blackburn and Ruffin, JJ., concur. Beasley, C. J., concurs specially. McMurray, P. J., dissents.

Beasley, Chief Judge,

concurring specially.

Three rebuttal witnesses for the State were examined outside the presence of the defendants (and the jury), with only counsel present. Counsel for each of the three co-defendants on trial objected on the ground the defendants had a constitutional right to be present at all proceedings in the trial. The three witnesses were from the company at which co-defendant Aaron Hunter had testified he worked on the day and at the time of the incident on trial. They testified that Aaron Hunter did not work for the company and that the time sheet he presented was a forgery, thus rebutting his alibi. Two of them testified again, to the same effect, in the presence of defendants and the jury.

Appellant Hunter rests his argument on “the legal right of a person accused of crime in this State to be present at all stages of his trial.” Wilson v. State, 212 Ga. 73, 74 (90 SE2d 557) (1955). It is derived from the 1983 Georgia Constitution, Art. I, Sec. I, Par. XII, which provides that “No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” He cites, however, Paragraph XIV, which contains the confrontation clause.

Appellant Perry rests his argument in support of the right to be present at every stage on what he terms the confrontation clauses of the Georgia and United States Constitutions, citing Paragraph XII of the Georgia Bill of Rights and the federal Sixth Amendment. Federal constitutional law need not be decided in this case because there is an adequate state constitutional remedy. It lies in Paragraph XII, but probably not in Paragraph XIV.

The three witnesses at issue were not witnesses against either appellant but rather against their co-defendant. Although defendants were not present when they were first examined out of the jury’s presence due to some professed fear, two of them were examined and cross-examined when the jury and defendants returned to the courtroom and the third was not called. Thus they fully confronted those witnesses who testified in front of the jury, which witnesses were not witnesses against either of them. Appellant Aaron Perry’s counsel did not even conduct any cross-examination. Carlton Hunter did not present an alibi. Aaron Hunter presented his alibi, that he was at work, through his own testimony. Aaron Perry presented his alibi, that he was at the dentist’s office, through the dentist.

Even though the witnesses’ testimony did not relate directly to either of these two appellants but only to the alibi presented by their co-defendant Aaron Hunter for himself alone, the involuntary absence of appellants during their preliminary testimony constituted a clear violation of their right to be present at all stages of their trial. It goes back at least to Georgia’s first constitution, that of 1777, Article LVIII. I cannot conclude that, because the witnesses did not testify against them, there was harmless error. It is impossible to discern whether the undermining of their co-defendant’s alibi infected their own defenses as well. More importantly, it has long been the law that no injury need be shown. Wade v. State, 12 Ga. 25, 28 (2) (1852).

For these reasons, I agree that a new trial is necessary.

McMurray, Presiding Judge,

dissenting.

“It is the legal right of a person accused of crime in this State to be present at all stages of his trial, such right being derived from our Constitution, [Art. I, Sec. I, Par. XII].” Wilson v. State, 212 Ga. 73, 74 (90 SE2d 557). However, these rights, along with additional confrontation rights under the Georgia and United States Constitutions are not absolute and in appropriate circumstances may give way to other legitimate circumstances in the criminal trial process. Wanzer v. State, 232 Ga. 523, 526 (207 SE2d 466); Ortiz v. State, 188 Ga. App. 532, 533 (2), 535 (374 SE2d 92).

In the case sub judice the sole matter before the trial court during defendants’ absence was a question of law, the proffer from the State’s witnesses serving only to frame and define a contested legal issue. The majority of jurisdictions recognize a general rule that no claim of error, or at least no claim of prejudicial error, can be based upon the exclusion or absence of a defendant, pending the trial of his case, from the courtroom, or from a conference between court and attorneys, during argument on or discussion of a question of law. 85 ALR2d 1111, 1112, § 2; 23 ALR4th 955, 1008, § 16. As well stated almost half a century ago, “[t]he prisoner’s right of personal presence in a felony case throughout the trial from arraignment to sentence, when anything is done that can affect his interest, is an inalienable one. It is to be rigidly and jealously guarded. Yet, in its protection and enforcement, it must not be so enlarged as to exceed its true scope and thereby made to exclude all inquiry into and consideration of purely legal matters by the trial judge which are in fact and reality merely careful and prudent preparation for the resumption and conduct of the trial.” Williams v. Virginia, 188 Va. 583 (50 SE2d 407, 411).

Decided March 17, 1995.

In the case sub judice, the trial court elected to conduct an in chambers conference with counsel, albeit the conference was actually conducted in the courtroom as a matter of logistical convenience. The matter for decision was the State’s request to present the testimony of three additional rebuttal witnesses to the jury in the absence of appellants and their co-defendant. In retrospect, we recognize that such a request could not have been granted, that the request was meritless on its face, and that the conference could have correctly led to only the trial court’s inevitable decision rejecting the State’s request. However, it is apparent that the trial court, perhaps confused by the security concerns of the witnesses related by the prosecuting attorney, did not immediately recognize the fundamental nature of the legal question before it. Being uncertain of the correct resolution of the legal issue, the trial court elected to proceed in the manner found defective by the majority.

In my view, the majority has extended the constitutional provisions at issue beyond their intended and commonly stated bounds. I would hold that a conference in chambers dealing solely with questions of law is not part of the trial in a constitutional sense. This is the rule which was at least implicitly adopted by our Supreme Court by citing a foreign jurisdiction case with approval for this proposition in Ferrell v. State, 261 Ga. 115, 122 (12) (401 SE2d 741). I would hold that the trial of the case sub judice was suspended while the trial court dealt with a question of law raised by the prosecuting attorney and that there was no constitutional error arising from the absence of appellants during consideration of that question of law. Furthermore, there was no action taken which had any material effect upon the case against appellants and their co-defendant and therefore no violation of the appellants’ constitutional rights. Andrews v. State, 196 Ga. 84, 93 (1), 94 (26 SE2d 263) (not followed as to a different issue). See also Gray v. State, 229 Ga. 808 (194 SE2d 479).

As I find no merit in the remaining enumerations of error, I would affirm appellants’ convictions. For these reasons, I respectfully dissent.

Richard S. Alembik, for appellant (case no. A94A2345).

Mercedes Murrell, for appellant (case no. A94A2346).

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Anita T. Wallace, Assistant District Attorneys, for appellee.

       A third defendant, Aaron Hunter, was convicted of armed robbery. In an earlier appeal, Aaron Hunter’s conviction was affirmed. Hunter v. State, Court of Appeals Case No. A94A1137 (June 23, 1994, unpublished). He did not raise the issue discussed here.

        Frady v. State, 212 Ga. 84, 86 (90 SE2d 664) (1955), involves the question of cross-examination of the complaining witness in a rape prosecution before the enactment of the Rape Shield Statute, OCGA § 24-2-3. We fail to see its relevance here.

       Walter McElreath, A Treatise of the Constitution of Georgia, p. 240, The Harrison Co., 1912.


text:
    A94A2376.
    GARDNER v. BOATRIGHT.
    (455 SE2d 847) .
   Ruffin, Judge.

Roger Boatright, mayor of Alma, Georgia, sued Max Gardner, owner and publisher, and Freddy Gardner, editor of the Alma Times-Statesman, for libel in connection with the publication of certain letters on the editorial page concerning Boatright’s sister-in-law’s use of credit cards issued to Boatright and suggesting Boatright’s involvement in “illegal practices.” We granted Max Gardner’s application for interlocutory appeal of the trial court’s denial of his motion for summary judgment.

Gardner contends the court erred in failing to grant his motion for summary judgment because Boatright is a public official and there is no evidence of actual malice.

“On summary judgment, a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. The nonmoving party cannot then rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]” Stange v. Cox Enterprises, 211 Ga. App. 731, 732 (1) (440 SE2d 503) (1994). As a public official, Boatright is subject to the standard of New York Times Co. v. Sullivan, 376 U. S. 254 (84 SC 710, 11 LE2d 686) (1964). That is, he “must demonstrate that the statements complained of were made with ‘actual malice’ — that is, with knowledge that they were false or with reckless disregard for their truth or falsity. [Cits.] The ‘reckless disregard’ necessary to show actual malice ‘is not measured by whether a reasonably prudent man would have published or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.’ [Cit.] . . . The public official in a defamation action must show actual malice with ‘convincing clarity.’ New York Times Co. v. Sullivan, supra, 376 U. S. at 285-286. The requirement of clear and convincing evidence of actual malice is equally applicable in ruling upon a motion for summary judgment. [Cits.]” (Indention omitted.) Stange, supra at 732-733.

Decided March 17, 1995.

Gardner, Willis, Sweat & Goldsmith, Todd S. Handelman, for appellant.

Jimmy J. Boatright, for appellee.

In support of his motion for summary judgment, Gardner submitted his own affidavit testimony that as owner of the Alma Times-Statesman, he had no prior knowledge of the letters at issue and bore no malice toward Boatright. He averred further that the letters were published in good faith and in accordance with the editorial policy of the newspaper to print signed letters. In response to such a showing, Boatright presented no clear and convincing evidence of actual malice, i.e., reckless disregard for the truth or publication of a known falsehood, on the part of the editor Freddy Gardner or the publisher Max Gardner. Contrary to Boatright’s position that Freddy Gardner’s revised editorial policy requiring telephone numbers on letters to the editor to facilitate verification, and his editorial comment that “Mayor Boatright has not been accused of any wrongdoing” create a triable issue, we do not find that such evidence meets the requisite clear and convincing standard. Under the “ ‘doctrine of respondeat superior, the employer becomes liable . . . because the employee’s [conduct is] imputed to him as a matter of law. . . .’ [Cit.]” Harris v. Hanna Creative Enterprises, 208 Ga. App. 549, 550 (430 SE2d 846) (1993). It follows that Max Gardner as owner of the newspaper is entitled to judgment as a matter of law on the derivative claim against him where Boatright has not produced clear and convincing evidence of actual malice on the part of Freddy Gardner as editor of the Alma Times-Statesman.

Judgment reversed.

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


author: Smith, Judge. McMurray, Presiding Judge,

text:
    A94A2385.
    NELSON et al. v. POLK COUNTY HISTORICAL SOCIETY, INC.
    (456 SE2d 93)
   Smith, Judge.

Dennis and Faye Nelson brought suit against the Polk County Historical Society, as landlord, for injuries resulting when tenant Dennis Nelson, along with a ladder and a negligently constructed church awning, fell to the ground. Nelson was pastor of a small church group using the property at the time of the incident. The awning was added by a former tenant — also a church group. Due to his resulting severe and permanent brain injury, Nelson cannot recall the incident, and there were no other witnesses to the fall. The trial court granted the landlord’s motion for directed verdict at the close of the Nelsons’ case based on the Nelsons’ failure to show sufficient evidence that the failure of the church awning to remain attached to the building was a cause-in-fact of his injuries. The landlord also moved for directed verdict on the basis that no duty owed to the Nelsons was breached, but the trial court rejected this theory. The Nelsons appeal.

1. As a preliminary matter, we note that the Nelsons’ burden at trial was to show that: (1) they would not have suffered the injuries they complain of but for the awning’s negligent construction; (2) the landlord owed a duty to the Nelsons to inspect the awning; (3) the duty was breached; (4) the breach contributed to Dennis Nelson’s fall by causing the latent hazard to remain unknown and uncorrected; (5) the landlord’s role in causing Nelson’s fall was a “proximate cause” of that fall; and (6) harm resulted to the Nelsons from the fall for which damages are recoverable. See generally Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982).

However, since this is an appeal from the grant of directed verdict, we consider only whether the directed verdict was proper on any of the specific grounds properly raised in the landlord’s motion. See generally Grabowski v. Radiology Assoc., 181 Ga. App. 298, 299-300 (2) (352 SE2d 185) (1986). Our review is therefore restricted to whether there was sufficient evidence introduced that the negligent construction of the awning contributed to Nelson’s fall and, if so, whether the landlord can be held liable for failing to discover and at least warn Nelson about the negligently constructed awning.

2. “ ‘On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.’ Prosser and Keaton on Torts (5th ed. 1984), § 41, p. 269.” Anneewakee, Inc. v. Hall, 196 Ga. App. 365, 367 (1) (396 SE2d 9) (1990).

Toward this end, the Nelsons presented the following evidence, which we view most strongly in their favor. On the previous evening Nelson made known that he planned to tack a piece of plyboard over a window located a few inches directly above the awning. He was to do this to cover an opening in the window frame where a piece of plexiglass had blown out. The next morning, Faye Nelson understood that her husband was headed to church to “see what had to be done” to fix the window. Shortly after Nelson arrived, a neighbor heard a “crashing sound.” Nelson was eventually found “laying with his head toward the church on his side or — kind of face down, but his head was turned to the side.” The awning “was laying up against him . . . on the steps.” The ladder, Nelson’s hammer, and the plyboard were also found on the ground nearby. The awning had to be moved in order for ambulance personnel to assist Nelson.

Appellee’s position on appeal, as stated by the trial court prior to its ruling, is that the jury had no basis to determine whether Nelson simply fell off the ladder, hitting the awning and causing it to fall with him, or whether the awning failed to hold his weight. However, such reasoning misses the point, which is whether Nelson would have experienced the impact with the ground and the injuries he in fact experienced but for the failure of the negligently constructed awning to remain in place. The jury was certainly given a reasonable evidentiary basis to infer, by a preponderance of the evidence, that Nelson would not have sustained the injuries he suffered but for the failure of the awning to remain attached. The trial court erred in holding there was a failure of proof on the issue of causation. See generally Atlanta Obstetrics &c. v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990).

3. Within the confines of Grabowski, supra, we agree with the landlord’s contention that “[i]t is the grant [of directed verdict] itself that is to be reviewed for error, and not the analysis employed. [Cit.]” Albany Oil Mill v. Sumter EMC, 212 Ga. App. 242, 243 (3) (441 SE2d 524) (1994). Accordingly, even though the trial court rejected the landlord’s argument that it was not legally responsible for the negligent construction performed by its former tenant, we may nevertheless consider whether the grant of directed verdict was right for this reason. We hold that it was.

The landlord conceded during the hearing on its motion that it had a duty (presumably for Nelson’s benefit) to inspect the awning. It therefore follows that at the time this incident occurred, the landlord is deemed to have knowledge superior to Nelson’s of any defects that only an inspection of the awning would have revealed. See generally Harris v. Sloan, 199 Ga. App. 340, 341-342 (1) (405 SE2d 68) (1991). However, on this critical point the evidence at trial showed only that the landlord “had no actual knowledge of the construction defect, and [it] established a lack of actionable constructive knowledge by demonstrating that [it] was incapable of discovering it by means of reasonable inspection.” Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546) (1992).

Specifically, the Nelsons’ expert testified that the awning was fastened to the wall of the church by 16-penny nails that, according to the expert, did not sufficiently penetrate into the structural members of the church building. However, the expert also confirmed that the only way to inspect such a defect would be to remove the awning from the building. The expert further testified that “I don’t think just the average person would be able to tell. The only thing you could really see would be a visual inspection with the fastening schedule. And you can visibly see the metal flashing and supporting of it. But a normal person would not — probably would not know that it was not properly supported or fastened.”

In light of this testimony by plaintiffs’ expert, which was not contradicted, the reasoning of Barksdale v. Nuwar, supra, controls our decision in this case. The Nelsons do not contend that the landlord had the type of knowledge required to detect the negligent construction. The jury therefore could not reasonably have found that the landlord’s failure to inspect was a breach of a duty owed to Nelson that in any way contributed to his injuries. Also, while cases mention in passing the rule “that the landlord is conclusively presumed to have knowledge” of construction defects (see, e.g., Parking Co. of America v. Sucan, 195 Ga. App. 616, 617 (1) (394 SE2d 411) (1990)), this rule applies only when the landlord was the builder or when the builder was otherwise acting under the landlord’s supervision or direction. Dobbs v. Noble, 55 Ga. App. 201, 203 (3) (189 SE2d 694) (1937). We note, too, that there is no contention the awning was placed on the church with the landlord’s consent so as to make the landlord liable for this improvement under OCGA § 44-7-13; on the contrary, the landlord was apparently not at all pleased with the unauthorized addition to the historic structure.

Finally, while we acknowledge that the plaintiffs’ expert identified certain building code violations in his testimony, there was no evidence presented that the landlord was or should have been aware of those violations. Bastien v. Metro. Park Lake Assoc., 209 Ga. App. 881 (434 SE2d 736) (1993), is readily distinguishable in that Bastien involved a patent failure to supply a handrail required by an applicable building code. In contrast, this case, like Barksdale, supra, involves a latent defect the landlord did not create and could not discover by ordinary means.

Because no breach of duty by the landlord contributed to Nelson’s fall, we affirm the trial court’s grant of directed verdict here.

4. Our holding in Division 3 renders the Nelsons’ remaining enumeration moot.

Judgment affirmed.

Birdsong, P. J., Pope, P. J., Johnson, Blackburn and Ruffin, JJ., concur. Andrews, J., concurs in Division 3 and in the judgment. Beasley, C. J., concurs in the judgment only. McMurray, P. J., dissents.

Decided March 17, 1995

Daniel B. Simon III, for appellants.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert L. Berry, Mark M. Webb, for appellee.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the judgment affirming the direction of the verdict against plaintiffs in the case sub judice. There is evidence from which the trier of fact could determine that the owner acquiesced in the erection of this awning (by previous occupants) without insisting that the addition comply with the 1985 Standard Building Code in its attachment to the structure. This is some evidence of causation. Surely, the fact that it would have been difficult to determine this noncompliance with an after-the-fact visual inspection does not relieve the owner of the responsibility to have the improvement accomplished correctly in the first instance.

I agree that Bastien v. Metro. Park Lake Assoc., 209 Ga. App. 881 (434 SE2d 736), is not applicable because the structure here is a meeting hall and not a residence. While the tenant may not waive the rights and the landlord may not avoid any of the duties enumerated at OCGA § 44-7-2 (b) (1) through (b) (7) in “any contract... for the use or rental of real property as a dwelling place,” the converse proposition is that the parties may contractually alter these statutory rights and duties with respect to the rental of real property for purposes other than a (mundane) dwelling place. See OCGA § 44-7-2 (b). See, e.g., Wilkerson v. Chattahoochee Parks, 244 Ga. 472, 473 (3) (260 SE2d 867); Colonial Self Storage of the South East v. Concord Properties, 147 Ga. App. 493, 494 (1), 495 (249 SE2d 310). Accordingly, the landowner may validly insist that the occupier be responsible for repairs, shifting the statutory obligations of OCGA § 44-7-13. Assuming, without deciding, that the parties could agree to exculpate the owner from liability for injuries received because of negligent repairs, the evidence in the case sub judice does not address that point regarding the earlier church group and is not conclusive with respect to plaintiffs and their organization.

       In the interest of clarity, we point out that in its motion for directed verdict, the landlord did not present a question of whether Nelson could have placed more stress on the awning than a properly constructed awning would be designed to withstand, but simply whether Nelson’s injuries can be fairly attributed to the failure of the awning to sustain whatever force Nelson applied to it.