author: Beasley, Judge.

text:
    77455.
    MAIN STATION, INC. v. ATEL I, INC.
    (378 SE2d 393)
   Beasley, Judge.

Defendant-lessee Main Station, Inc. d/b/a Carlyle’s appeals from the grant of summary judgment to plaintiff-lessor Atel I, Inc., and the denial of summary judgment to it in this dispossessory action.

The facts are not in dispute. Carlyle’s entered into a six-year lease of commercial space in Atel’s building for the operation of a restaurant. Approximately two years into the lease, on March 6, 1987, Carlyle’s treasurer wrote Atel a letter informing the landlord of Carlyle’s intention to assign the lease and to sell and transfer its operation and interest in the building.

A paragraph in the lease on assignment or subletting provided that if lessee desired to lease or sublet the premises wholly or partially, lessee would give lessor certain written notice and lessor would then have thirty calendar days following receipt to notify lessee in writing whether lessor elected:

1) to terminate the lease for the space to be subleased or assigned on the effective date specified by lessee, in which event lessee would be relieved of all further obligations to pay rental for the space, or

2) to permit lessee to assign or sublet the space, in which event certain provisions for rental would apply, or

3) to withhold consent and continue the lease in full force and effect. If lessor failed to notify lessee in writing of such election within the thirty days, lessor would be deemed to have elected the third option.

On March 23, Atel’s counsel responded by letter to Carlyle’s treasurer informing him that Atel elected to exercise its right to terminate the lease, effective May 18. The letter was sent certified mail return receipt requested to the treasurer at the sole address which appeared on the letterhead of Carlyle’s notice of intent to assign and also on the first page of the lease.

On May 12, Carlyle’s mailed to the landlord a check for the full month’s rent for May, which the landlord deposited on May 14.

Atel filed the present dispossessory action seeking to evict Carlyle’s and was granted summary judgment. The trial court’s order and judgment directed Carlyle’s to deliver possession of the premises back to the landlord on or before the thirtieth day following entry of the judgment, provided that if Carlyle’s filed a timely appeal from the judgment, it could retain possession of the premises during pendency • of the appeal and until the judgment was affirmed, so long as Carlyle’s continued to pay rent and other monies due under the lease into the registry of the court.

Carlyle’s attacks the judgment on two bases: 1) the letter sent by ; landlord was not in compliance with the notice provision of the lease because it was mailed and delivered to an address other than as listed under the notice paragraph in the lease, and 2) landlord’s acceptance .of rent for a period beyond the date landlord purported to terminate the lease, constituted a waiver or estoppel against termination.

1. Lessee received timely notification that landlord was exercising its express option to terminate the lease because of lessee’s proposed lease assignment. The only issue in this regard is whether or ■not lessor’s mailing to an address other than that listed under the . lease’s notice paragraph rendered the notification ineffective. It did not, under the circumstances.

Lessor’s notification of termination was not inadvertently sent to an individual or to an address having no relationship to the issue at hand but rather to lessee’s treasurer at the address which appeared both on the first page of the lease as “ADDRESS OF LESSEE” and on the letter from the treasurer. The lease’s notice paragraph provided that notice be sent to the treasurer but at a different address; lessor notified the correct individual at the last provided address for that individual.

Lessee’s own letter to the landlord of its intended assignment was sent to an address other than that listed for lessor under the very same notice paragraph on which lessee now relies. In the same breath, lessee seeks to strictly enforce a lease provision it has ignored.

“Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given to the other of intention to rely on the exact terms of the agreement. The contract will be suspended by the departure until such notice.” OCGA § 13-4-4.

Lessee did not indicate to lessor that, following its own departure from the notice provision in the lease, it would then rely on the exact terms of such provision. Moreover, such a mutual departure from the notice term would not affect the enforceability of the other lease provisions. See Southwest Plaster &c. Co. v. R. S. Armstrong &c. Co., 166 Ga. App. 373, 374 (304 SE2d 500) (1983).

While the question of mutual departure is ordinarily a jury question, id., there is absolutely no evidence that the parties intended to do anything other than deviate from the notice provision in the manner by which both proceeded. Moreover, the notice provision does not indicate that notice sent to other addresses would not be effective or that only notices sent to the listed addresses would be effective; it merely provides that notices sent to these addresses “shall be deemed given” and “shall be effective.”

Finally, lessee has failed to demonstrate how it was harmed by the mailing to the alternate address, because the purpose of the notice provision was fulfilled.

2. Carlyle’s contends that by landlord’s acceptance of the rent check for the entire month of May, landlord waived the termination. Lessee cites as controlling the case of C & A Land Co. v. Rudolf Investment Corp., 163 Ga. App. 832 (296 SE2d 149) (1982), which applies the principle that “ ‘[wjhere the landlord accepts rent from the tenant after the default but before the dispossessory proceeding, the landlord then has no right to institute dispossessory proceedings against the tenant during the ensuing period on account of the tenants’ arrears in the payment of past due rent.’ [Cits.]” Id. at 834. This does not obtain.

Landlord did not seek to dispossess for non-payment of rent but rather because it had exercised its option to terminate the lease in the face of a proposed assignment so that lessee was holding over beyond the lease termination. Under such circumstance, acceptance of the May rent did not estop landlord from pursuing recovery of the premises. See Cheeves v. Horne, 167 Ga. App. 786, 787 (307 SE2d 687) (1983).

Any miscalculation in the rent was attributable to lessee because under the lease it was lessee’s obligation to prorate the rent to account for mid-month termination and to pay a late charge for tardiness.

Decided February 7, 1989.

Greenfield, Ellis & Bost, William L. Bost, for appellant.

Curtis E. Anderson, for appellee.

The trial court correctly denied summary judgment to lessee and granted judgment in favor of landlord.

Throughout its argument, lessee raises the spectre of inequity and unfairness in the positions of the parties in regard to the drafting and execution of the lease. It implies that the lease provision for landlord’s options in the case of a proposed assignment or lease should not be enforced. There is no evidence of a challenge and a ruling thereon below to the basic validity of the lease; therefore, it was not appropriately raised in this appeal. Moreover, this court will not rewrite the agreement the parties made, for courts are not at liberty to revise contracts even when construing them. See Brigadier Indus. Corp. v. Pippin, 148 Ga. App. 145, 146 (251 SE2d 114) (1978).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    77712.
    77713.
    GEORGIA INSURANCE COMPANY v. WHITE et al. GEORGIA INSURANCE COMPANY v. POWELL et al.
    (378 SE2d 523)
   Sognier, Judge.

Georgia Insurance Company denied the claims of Juanita C. White and Patricia R. Powell and their employer, AAA Emergency Medical Service, Inc. (AAA), for workers’ compensation benefits, claiming no coverage existed on the date of the accident. The State Board of Workers’ Compensation (Board) and the Superior Court of Muscogee County affirmed the decision of an administrative law judge that coverage did exist on the date of the accident, and we granted Georgia Insurance Company’s application to appeal.

The record reveals that AAA, located in Columbus, Georgia, purchased workers’ compensation insurance through a Phoenix, Arizona insurance agency. The agency placed the insurance with Argonaut Insurance Company, whose branch doing business in Georgia is appellant. The insurance was financed through AFCO Credit Corporation, a premium finance company, and in its agreement with AFCO AAA granted AFCO power of attorney to cancel coverage in its behalf should AAA default in the payment of any installment to AFCO. AAA’s installment payment to AFCO for December 1984 was returned for insufficient funds, and because AAA had failed to remit the payment by the due date, on January 3, 1985 AFCO exercised its power of attorney and requested that Argonaut cancel coverage and sent a copy of that notice to AAA. The notice provided that the cancellation would be effective January 8, 1985 and stated that the account would not be reinstated “except under unusual circumstances.” It is uncontroverted that AAA received this notice.

Relying on assurances received in a phone call to an unidentified person at the Phoenix agency that its coverage would be reinstated, AAA mailed a check to AFCO on January 17, 1985 for the unpaid balance on its installments. AFCO received this check on January 24, 1985 and on February 1, 1985 sent a form captioned “Notice of Insured’s Request For Reinstatement” to Argonaut, and a copy to AAA. The form concluded with a paragraph headed “READ THIS IMPORTANT MESSAGE. TO THE INSURED: The policies listed above are cancelled and are not in force until the insurance company advises you to the contrary. If you are not advised promptly, contact your insurance agent. If your insurance coverage is not reinstated, all payments, made following cancellation will be credited to your account. The fact that you continue to make payments to AFCO does not mean your insurance is in force. Only the insurance companies or your agent can advise you as to the status of your insurance coverage.” (Emphasis in original.)

Argonaut did not agree to reinstate coverage. In compliance with AFCO’s original request to cancel coverage Argonaut cancelled the insurance coverage and on February 4, 1985 filed a Form “B” card with the Board, pursuant to the applicable Board Rule then in effect. The cancellation became effective February 19, 1985. (Former Rule 126 (d) provided that “[t]he filing of a Report of Cancellation, Form “B” ... , is evidence that coverage is terminated, effective not less than 15 days after filing, except” in certain circumstances not relevant here.) A cancellation audit was begun by Argonaut after the effective date of the cancellation. The audit was signed by AAA in April 1985, and was concluded in June 1985, at which time $332 was sent to AFCO as unearned premium. AFCO then sent this amount to the Phoenix agency for return to the employer, who received a credit to its account with the agency.

The accident in question occurred on April 1, 1985. The sole question for determination in this appeal is whether the superior court erred by affirming the Board’s decision that coverage existed on that date. We note that this case is not one in which the facts are in dispute, in which case the “any evidence” rule would govern. Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408, 411 (7) (224 SE2d 65) (1976). Rather, cognizant of the fact that the weight of the evidence is to be determined below, and every presumption in favor of the validity of the Board’s determination is to be indulged, see id. at 410-411, if error of law is found in the decision of the Board and the superior court, that error may properly be corrected on appellate review. See Carroll v. Dan River Mills, 169 Ga. App. 558, 562 (1) (313 SE2d 741) (1984).

We agree with appellant that the ALJ erred as a matter of law by basing his decision that coverage existed on the date of the accident on Horace Mann Life Ins. Co. v. Lunsford, 172 Ga. App. 866 (324 SE2d 808) (1984). Although in Lunsford, we held that coverage existed after cancellation because of the acceptance of premiums from the insured, that case is distinguishable from and inapposite to the case at bar for several reasons. First, in Lunsford the entity accepting the late premiums was the insurer. “An insurer which accepts past-due premiums or assessments in violation of its own regulations cannot invoke the same in order to avoid liability. [Cit.]” Id. at 869. In the instant case, the entity accepting the late premium was not the insurance company but the premium finance company. Second, the insurer in Lunsford waived any forfeiture by engaging in a pattern of accepting late premiums and by sending numerous contradictory and confusing notices and letters to the insured, some of which stated that the policy was in force, as well as by accepting the premium and issuing a receipt more than a month after it was informed the insured had died. “If an insurance company receives, accepts, and retains past-due premiums which are paid subsequent to the due date and expiration of the grace period, it renews the contract and waives the forfeiture for non-payments provided the acceptance is unconditional and the facts are known.” Id. In the case sub judice, AFCO did not engage in a practice of accepting late premiums, but instead informed the insured unequivocally that its policy was cancelled, and gave explicit notice to the insured that although it was requesting reinstatment from the insurer on the insured’s behalf, the policies would not be reinstated unless the insurer so informed the insured. Based on these notices, and unlike the insured in Lunsford, AAA was not misinformed or confused by conflicting information or a previous contrary pattern of behavior, and should have known that no coverage was in effect on the date of the accident.

Appellees cite language from Perry & Co. v. New South Ins. Brokers, 182 Ga. App. 84 (354 SE2d 852) (1987), as authority for the proposition that the actions of a premium finance company are imputable to the insurer to its detriment, regardless of the fact that the premium financing agreement permits the action taken by the premium finance company. Appellees’ argument in this regard misses the mark. Rather than characterizing the premium finance company as the agent of the insurer, Georgia law has established that a premium finance company stands in the shoes of the insured when cancelling an insurance policy. See OCGA § 33-22-13 (c). In Perry, reinstatement of the policy despite cancellation by the premium finance company resulted because the premium finance company failed to return unearned premiums according to law, and thus the case was governed by specific statutory language in OCGA §§ 33-24-44 (c) and 33-22-14 (a), which provided that “[o]nce a policy was cancelled, any payments accepted by [the premium finance company] became unearned premiums owed back to the insured. If not paid within 15 days, the cancellation was voided and [the insurer] was obligated by [the premium finance company]’s actions, of which it had no knowledge, to provide coverage.” Perry, supra at 86 (2). As pointed out by this court in Perry, “[t]he statute[s have] been amended to preclude this result.” Id. at 86 fn. 1. OCGA § 33-22-14 (c), as amended, in effect at the times applicable to this appeal, provides that “[f]ailure to refund any surplus or return any unearned premium . . . shall not invalidate a notice of cancellation given in accordance with this chapter.” (Emphasis supplied.) Thus, in the case sub judice, even if AFCO had been late in forwarding the unearned premiums (which the record does not indicate), cancellation of coverage would not have been affected.

Decided February 7, 1989.

Saveli & Williams, C. Wade McGuffey, Jr., Jennifer L. Houser, for appellant.

H. Michael Bagley, Robert B. Whatley, W. Alexander Byars, for appellees.

Accordingly, as we find that no coverage existed on the date of the accident, we reverse the judgment of the superior court affirming the award of the Board and the ALJ.

Judgment reversed.

Carley, C. J., and Deen, P. J., concur.


author: Pope, Judge.

text:
    77792.
    HABERSHAM v. THE STATE.
    (378 SE2d 489)
   Pope, Judge.

Defendant Alvin Habersham was convicted of trafficking in cocaine and appeals.

1. Defendant first enumerates as error the denial of his motion to sever. The record shows that defendant and co-defendant Winfred Glover (see Glover v. State, 188 Ga. App. 330 (373 SE2d 39) (1988)) repeatedly moved for severance at trial. On appeal defendant insists that Glover would have testified at a severed trial and that his testimony would have been exculpatory. In support of his motion defendant submitted Glover’s affidavit in which he averred, inter alia, that they were at the scene so that Glover could give “Dee Dee” some rent money and that “ [Habersham] did not have any cocaine on him or in his car and neither did I.” Glover further averred that he would testify at a severed trial but not at a joint trial “as it may not be to my benefit.”

“ ‘In order to be entitled to a severance on the ground urged, the movant must demonstrate: (1) a bona fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that the co-defendant will in fact testify if the cases are severed. (Cits.) Given such a showing, the court should (1) examine the significance of the testimony in relation to the defendant’s theory of defense; (2) assess the extent of prejudice caused by the absence of the testimony; (3) pay close attention to judicial administration and economy; (4) give weight to the timeliness of the motion.’ ” Stevens v. State, 165 Ga. App. 814, 817-818 (302 SE2d 724) (1983), citing United States v. Butler, 611 F2d 1066 (5th Cir.), cert. denied, 449 U. S. 830 (1980).

Assessing the defendant’s motion in light of these standards, we conclude that the trial court did not abuse its discretion in denying the request for severance. First we note that Glover’s statement was little more than a bare conclusory assertion that neither defendant was involved in the crime. “Lacking specificity, the affidavit demonstrated little, if any, exonerative significance.” United States v. Johnson, 713 F2d 633, 641 (11th Cir. 1983), cert. denied, 465 U. S. 1081 (1984). “Moreover, because the purportedly exonerating testimony proffered by [the co-defendant witness] did not contravene his own penal interests, but instead was extremely self-serving, it lacked a certain amount of credibility.” United States v. DeSimone, 660 F2d 532, 540 (5th Cir. Unit. B) (1981). “[Lastly, the co-defendant witness’] claim that he would testify in a separate trial is doubtful given that [defendant] has failed to show the reason why [the co-defendant witness] would be willing to give this testimony at a separate trial but not at a joint one. ‘The usual reason for such a strategy is inconsistent or antagonistic defenses—the testimony that exonerates the movant will implicate the co-defendant witness’ [Cit.]” United States v. Hewes, 729 F2d 1302, 1319 (11th Cir.) cert. denied, 469 U. S. 1110 (1984). As stated above, inasmuch as Glover averred that neither he nor Habersham were involved in criminal activity, such is not the case here. Under these circumstances we agree that any prejudice arising from the absence of Glover’s testimony was outweighed by consideration of judicial economy; consequently the trial court did not abuse its discretion in denying the motion to sever.

2. Defendant also contends that the trial court erred by admitting into evidence the cocaine retrieved at the crime scene because a proper chain of custody was not established. The record shows that Officer Goodyear testified that he kept the cocaine in his possession until he returned to his office where he weighed, tested, bagged and sealed the cocaine before putting it into an evidence lockbox. Officer Goodyear stated that he was the only officer with a key to that box and that he filled out a form showing the condition of the evidence. Officer Goodyear further testified that later that night he unlocked the evidence box, retrieved the evidence and gave it to Lt. Bramlett who locked it in a safe. Officer Goodyear testified that although he did not observe Lt. Bramlett locking the evidence in the safe, when he retrieved it the next morning to take it to the crime lab it was in the same condition it had been in when he gave it to Lt. Bramlett the previous evening, and that it did not appear that anyone had tampered with or molested the evidence. Officer Goodyear testified that he then drove the evidence to the State Crime Lab, and released it to Gretchen Hancock, a forensic chemist at the lab. He said Hancock then opened the package and described it to a secretary, who typed the description into a computer. Hancock testified that she received the evidence from Officer Goodyear, and although she could not recall the date on which she received the evidence, she identified a report bearing her signature which listed the evidence received, when it was received, and what action was requested. She further stated that she stored the contraband in her evidence locker and that she was the only person with access to the evidence. Lastly, Hancock identified the contraband and the bag it was contained in at trial.

“When the State seeks to introduce fungible material into evidence, ‘it must show a chain of custody which is adequate to preserve the identity of the evidence. (Cit.) Hence, the burden is on the prosecution “to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.” (Cit.) However, the State need not negate all possibility of tampering, and “need only establish reasonable assurance of the identity” of the confiscated evidence. (Cits.)’ Kelly v. State, 182 Ga. App. 7, 9 (354 SE2d 647) (1987).” Hicks v. State, 187 Ga. App. 671, 672 (371 SE2d 145) (1988). Under the facts here, the chain of custody was sufficiently proved, and the evidence was properly admitted. Accord Spead v. State, 187 Ga. App. 359 (1) (370 SE2d 213) (1988); Tyson v. State, 184 Ga. App. 309 (2) (361 SE2d 386) (1987).

3. We have examined defendant’s remaining enumeration concerning the sufficiency of the evidence and find that the evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime for which he was charged and convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

Decided January 24, 1989

Rehearing denied February 8, 1989

Bert W. Cohen, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.


text:
    77155.
    HAMRICK v. THE STATE.
    (378 SE2d 395)
   Sognier, Judge.

Joseph Richard Hamrick was convicted of two counts of burglary and he appeals.

In his sole enumeration of error, appellant contends the trial court erred by denying his motion for mistrial made after the State allegedly injected his character into issue at trial. At trial, Mitch Dennis positively identified appellant as the driver of the Trans Am automobile which exited the driveway of one victim’s house around 11:30 a.m. on the day in question. Officer Roger Bottoms of the Suwanee Police Department positively identified appellant as the driver of the Trans Am he pursued at great speed at 2:20 p.m. that same day and subsequently tracked to a gravel driveway where appellant was observed unloading items out of the Trans Am before fleeing on foot into nearby woods as Officer Bottoms approached. The Trans Am was owned by appellant and the items appellant was seen unloading from the Trans Am were identified as belonging to the burglary victims.

Defense counsel asked both Dennis and Officer Bottoms about reports that the Trans Am had been stolen and later elicited information from the investigating officer, L. B. Davis of the Gwinnett County Police Department, that appellant stated to police he had spent the day in question in the company of a woman he met at a shopping center, that he had left his Trans Am at the parking lot there around 11:30 a.m., and that upon discovering it gone when he returned at 4:30 p.m., he reported to the police that it was stolen. Defense counsel also asked Officer Davis about his investigation of appellant’s story by inquiring as to what steps had been taken to contact the woman with whom appellant alleged he had spent the day. On redirect, Officer Davis testified that appellant’s report that his vehicle had been stolen was thoroughly investigated and that as a result, appellant was charged with false report of a crime. It was this testimony regarding the investigation and ensuing charges that appellant contends improperly injected his character into issue and demanded a mistrial.

We find no abuse of the trial court’s discretion in denying appellant’s motion for mistrial. See generally Sims v. State, 243 Ga. 83, 86 (4) (252 SE2d 501) (1979). By questioning witnesses about the report appellant had made that his Trans Am was stolen and about the investigation made by the police into the matter, appellant opened the door to the State’s follow-up questions to Officer Davis about the results of that investigation, and he cannot now complain. Smith v. State, 258 Ga. 181, 182 (1) (366 SE2d 763) (1988). Further, even if it were error to have admitted this evidence, considering the overwhelming nature of the evidence against appellant as set forth above, it is highly probable the admission of this evidence did not contribute to the judgment, see generally Louis v. State, 185 Ga. App. 472, 473 (364 SE2d 607) (1988), and thus the trial court did not err by denying appellant’s motion for mistrial.

Decided February 8, 1989.

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, T. David Motes, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, C. J., and Deen, P. J., concur.


author: McMurray, Presiding Judge.

text:
    77255.
    CHASTAIN v. UNITED STATES FIDELITY & GUARANTY COMPANY.
    (378 SE2d 397)
   McMurray, Presiding Judge.

United States Fidelity & Guaranty Company (“USF&G”) initiated this declaratory judgment action against John Timothy Chastain (defendant), to determine the extent of its liability under an automobile liability insurance policy. USF&G alleged, in pertinent part, as follows: “On or about February 2, 1986 USF&G issued its policy of insurance ... to Chastain & Majors, Inc. That policy of insurance was in effect for the period of February 2, 1986 to February 2, 1987. . . .

“On September 25, 1986, Defendant John Timothy Chastain was employed by Chastain & Majors, Inc. On that date [defendant] was involved in a motor vehicle collision with another motorist and in which he received serious bodily injury. At the time of the collision . . . [defendant] was operating a 1985 Nissan pickup truck which was owned by him in his individual capacity. That vehicle was insured by another insurance company for liability, personal injury protection (no-fault) benefits and for uninsured motorist coverage. That vehicle was not scheduled under the policy of insurance issued by USF&G to Chastain & Majors, Inc. and was not an insured vehicle under that policy of insurance. . . .

“Defendant . . . has contended that he is entitled to certain underinsured motorist coverage under the policy of insurance issued by USF&G to Chastain & Majors, Inc. . . . with regard to injuries he received in the collision .... Defendant . . . may also contend he is entitled to certain personal injury protection (no-fault) benefits under the policy of insurance issued by USF&G to Chastain & Majors, Inc. . . .

“Under the terms of the policy issued by USF&G to Chastain & Majors, Inc. there is no coverage available to [defendant] for either underinsured motorist benefits or for personal injury protection. . . .

“Plaintiff USF&G shows that there exists a substantial controversy as to [its] rights, with an immediacy of choice placed upon it to determine the proper course of action and to avoid the possible accrual of damages, so that adjudication of this matter by way of declaratory judgment is warranted. . . .

“There is an actual controversy between Plaintiff USF&G and Defendant . . . , and neither of the parties have sought by any other legal action to have adjudicated their rights under the policy of insurance. . . .”

Defendant answered and subsequently filed a motion to dismiss for failure to state a claim contending that plaintiff sought a mere advisory opinion as to its defenses under the policy which is not a proper subject for a declaratory judgment action. The trial court denied this motion and subsequently entered summary judgment in favor of USF&G. This appeal followed. Held:

1. In his first enumeration of error, defendant contends the trial court erred in denying his motion to dismiss and argues that USF&G failed to state a claim for declaratory relief.

“OCGA § 9-4-2 (c) provides that a ‘(r)elief by declaratory judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies.’ However, it has been held that this provision ‘does not mean that a declaratory judgment (action) will lie to have just any justiciable controversy decided.’ Reliance Ins. Co. v. Brooks Lumber Co., 101 Ga. App. 620, 621 (115 SE2d 271) (1960). ‘(T)he plaintiff must show facts or circumstances whereby it is in a position of uncertainty or insecurity because of a dispute and of having to take some future action which is properly incident to its alleged right, and which future action without direction from the court might reasonably jeopardize its interest.’ Phoenix Assur. Co. v. Glens Falls Ins. Co., 101 Ga. App. 530, 532-533 (114 SE2d 389) (1960). ‘A declaratory judgment may not be granted in the absence of a justiciable controversy. (Cits.) “The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. As many times pointed out by this court, its purpose is to permit one who is walking in the dark to ascertain where he is and where he is going, to turn on the light before he steps rather than after he has stepped in a hole. (Cits.)” (Cit.)’ (Emphasis supplied.) Loyd v. City of Irwinton, 142 Ga. App. 626-627 (1) (236 SE2d 889) (1977).” Oxford Fin. Cos. v. Dennis, 185 Ga. App. 177 (363 SE2d 614).

Decided February 8, 1989.

Weiner, Dwyer & Yancey, J. Matthew Dwyer, Jr., Thomas C. Dempsey, for appellant.

William C. Sanders, for appellee.

In the case sub judice, there is no question that a dispute exists between USF&G and defendant with regard to the parties’ rights and duties under an automobile liability insurance policy. However, all possible rights under the policy have accrued and all obligations have attached. Further, the record discloses that there is no pending action which could possibly expose USF&G to uncertainty with regard to its duty to defend. (See State Farm Mut. &c. Ins. Co. v. Allstate Ins. Co., 132 Ga. App. 332, 334, 335 (208 SE2d 170). Compare Nationwide Mut. Ins. Co. v. Peek, 112 Ga. App. 260 (145 SE2d 50), where an insurance carrier was seeking to relieve itself of an obligation to defend a pending suit against an insured.) It is therefore apparent that USF&G was merely seeking an advisory opinion from the trial court should past events result in an action at law or in equity. Georgia’s Declaratory Judgments Act makes no provision for such an opinion. Oxford Fin. Cos. v. Dennis, 185 Ga. App. 177, 178, supra. Consequently, the trial court should not have entered summary judgment in favor of USF&G but should have granted defendant’s motion to dismiss plaintiff’s action for declaratory judgment. American Mut. Ins. Co. of Boston v. Aderholt, 114 Ga. App. 508 (1) (151 SE2d 833). Accordingly, the judgment below is vacated and the case is remanded. Kaylor v. Kaylor, 236 Ga. 777, 778 (225 SE2d 320).

2. Defendant’s remaining enumerations of error are rendered moot by our holding in Division 1 of this opinion.

Judgment vacated and case remanded.

Pope and Benham, JJ., concur.


text:
    77277.
    ASTON MILLS, INC. v. SUNTEK INDUSTRIES, INC.
    (378 SE2d 399)
   Beasley, Judge.

Suntek Industries, Inc., sued Aston Mills, Inc., on open account for yarn used in manufacturing carpet. While not contesting the amount originally purchased, Aston contended it was entitled to a set-off against that amount because of problems encountered with the yarn, as agreed between the parties. The only uncertainty was the amount of the set-off. A verdict for plaintiff was returned.

Only a portion of the transcript has been provided, consisting of a discussion between the court and parties after the jury charge. This discussion reflects that the issue of prejudgment interest on this amount, which had been prayed for by Suntek under OCGA § 7-4-16, had not been submitted to the jury, plaintiff contending, over objection by defendant, that it should merely be added by the court after the verdict.

Judgment was entered and provided for the addition to the verdict of interest at the commercial rate of 18 percent from the date of the disputed invoice until judgment, and thereafter at the legal rate. Aston’s motion for new trial contended that the addition of 18 percent prejudgment interest was error. The judgment was amended to allow 18 percent interest from the invoice date until the date of the verdict and thereafter at the legal rate.

Aston correctly contends on appeal that the court could not add interest. OCGA § 9-12-9 provides that judgment “shall conform to the verdict.” Although Suntek argues that the parties had agreed to allow the court to add the interest, nothing in the record reflects such an agreement. The pretrial order specifies the form of the verdict but does not mention interest or reserve that issue for the court or stipulate that interest would be added.

“It was necessary that the jury expressly find interest, and, by their verdict, specify as a separate sum the interest found to be due on the principal sum in order that the plaintiff be entitled to recover interest. [Cit.]” Jenkins v. Tastee-Freez, 114 Ga. App. 849, 852 (3) (152 SE2d 909) (1966); Ron Eason Enterprises v. McColgan, 151 Ga. App. 106, 107 (2) (258 SE2d 761) (1979).

“[T]he trial judge was without authority to add interest to that judgment without a direction to do so in the verdict. [Cit.] The entry of an interest judgment here was an impermissible variation of the jury’s verdict. [Cits.]” Erdmier v. Eunice, 143 Ga. App. 505, 507 (3) (239 SE2d 192) (1977); Hopkins v. Clanton Motor Co., 185 Ga. App. 736, 737 (1) (365 SE2d 882) (1988); Dismuke v. Gibson, 174 Ga. App. 546, 547 (2) (330 SE2d 771) (1985); McColgan, supra.

The judgment is affirmed on the express condition that, within ten days of the date of the remittitur, the prejudgment interest be stricken; otherwise, reversed. Jackson v. Layton, 167 Ga. App. 450, 451 (306 SE2d 716) (1983); Erdmier, supra.

Judgment affirmed on condition.

Banke, P. J., and Birdsong, J., concur.

Decided February 8, 1989.

McCamy, Phillips, Tuggle, Rollins & Fordham, Joseph T. Tuggle, Jr., for appellant.

Ronald S. Iddins, for appellee.


text:
    77429.
    BAKER v. THE STATE.
    (378 SE2d 525)
   Pope, Judge.

Defendant James Calvin Baker appeals from his conviction and sentence for driving under the influence. OCGA § 40-6-391. On appeal defendant argues that the trial court impermissibly denied lead counsel the opportunity to voir dire and select the jury in this case; defendant also argues that this case involves an issue of first impression concerning the resolution of conflicts under the Uniform Rules of the Superior Courts of this state.

The record shows that on Monday, March 7, 1988, counsel was informed that defendant’s case would be placed third on the misdemeanor criminal calendar. On Tuesday, March 8, 1988, counsel informed the court that he had a hearing scheduled for 10:00 a.m. that morning in the United States Bankruptcy Court for the Northern District of Georgia. The trial court excused the attorney from attendance for that day so he could attend the bankruptcy hearing. When the case was called on the following day, another attorney from lead counsel’s office appeared and informed the court that lead counsel was at a Chamber of Commerce meeting. Later that day, counsel informed the court that his bankruptcy hearing had been reconvened from the following day. Another attorney from counsel’s firm struck the jury, but lead counsel conducted the remainder of the trial.

Uniform Superior Court Rule 17.1(B) provides: “When an attorney is scheduled to appear in two or more courts (trial or appellate; state or federal), at the same time and cannot arrange for other counsel to represent adequately his client’s interest, the attorney shall give prompt written notice of the conflict to opposing counsel, to the clerk of each court and to the judge before whom each action is set for hearing (or, to an appropriate judge if there has been no designation of a presiding judge). Attorneys confronted by such conflicts are expected to exercise diligence in giving such notice. The judges before whom such actions pend or the clerks of the respective courts shall confer, undertaking to resolve the conflict by agreement. Absent agreement, conflicts shall be promptly resolved by the judges or the clerk of each affected court in accordance with the following order of priorities:

Decided February 8, 1989.

Howard W. Jones, James F. Ledbetter, for appellant.

Darrell E. Wilson, District Attorney, William F. Riley, Jr., Assistant District Attorney, for appellee.

(1) Criminal (felony) actions shall prevail over civil actions;

(2) Jury trials shall prevail over non-jury matters including trials and administrative proceedings;

(3) Trials shall prevail over appellate arguments, hearings and conferences;

(4) The action which was first filed shall take precedence.” (Emphasis supplied.)

In the case at bar, defense counsel did not notify the court that his hearing in bankruptcy court was scheduled to reconvene on Wednesday, March 9, 1988. At the time the calendar was called, the court was informed that lead counsel was at a Chamber of Commerce meeting. Inasmuch as counsel failed to utilize the Uniform Rules in resolving the conflict, he cannot now complain that the rules were improperly applied, or that the trial court erred in going forward with the proceedings in his absence.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Carley, Chief Judge. Deen, Presiding Judge,

text:
    77435.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. UNITED STATES FIDELITY & GUARANTY COMPANY et al.
    (378 SE2d 400)
   Carley, Chief Judge.

Upon discovering that the brakes of his jeep were not working properly, Louis Laminack took the vehicle to Roscoe Brown. Brown had repaired Laminack’s vehicles on several prior occasions and, on those prior occasions, Laminack had allowed Brown to drive the vehicles for his personal convenience. On this occasion, Brown determined that the jeep’s brake cylinders needed to be replaced and the vehicle was left with him. Prior to making the repairs, Brown decided to drive the jeep to his house and eat dinner. On his way, Brown collided with an automobile which was being driven by Katherine Lewis.

At the time of the collision, the following insurance policies were in full force and effect: Laminack’s jeep was insured under a policy issued by appellant-defendant State Farm Mutual Automobile Insurance Company (State Farm). The automobile that was being driven by Ms. Lewis was insured under a policy issued by United States Fidelity & Guaranty Company (USF&G). Brown was insured under a policy which had been issued to his wife by appellee-defendant Georgia Mutual Insurance Company (GMIC). State Farm denied coverage for the collision, relying upon the “automobile business” exclusion in Laminack’s policy and Brown’s lack of permission to drive Laminack’s jeep. GMIC denied coverage, relying upon the “repair shop” exclusion in Mrs. Brown’s policy. Thereafter, USF&G brought a declaratory judgment action, seeking a determination as to whether the policies issued by State Farm and GMIC provided coverage to Mr. Brown at the time of the collision.

The case was submitted to the jury for the return of a special verdict. Based on the special verdict returned by the jury, the trial court entered a judgment declaring that Mr. Brown was afforded coverage under the policy issued to Laminack by State Farm. However, the trial court granted State Farm’s motion for new trial and another jury trial was held.

At the conclusion of the second trial, the trial court again submitted the case to the jury for the return of a special verdict. The jury was first asked: “Did Louis Laminack give consent, either express or implied, for Roscoe Brown to operate his 1977 Jeep automobile for Roscoe Brown’s personal convenience on October 11, 1986?” The jury’s answer to his question was “yes.” The jury was then asked: “Did the accident of October 11, 1986, in which Roscoe Brown was involved, arise out of the operation of a car business?” The jury answered “no” to this question. Based on the jury’s special verdict, the trial court again entered a judgment declaring that Mr. Brown was afforded coverage under the policy issued to Laminack by State Farm. State Farm appeals from the judgment entered on the jury’s verdict.

1. State Farm enumerates as error the trial court’s failure to sustain an objection to the first of the two questions submitted to the jury. State Farm contends that that question should have been phrased in terms of whether Laminack had expressly or impliedly consented to Brown’s driving of the jeep for his personal convenience only after completion of the brake repairs. Under the evidence introduced at trial, however, the jury would have been authorized to find either that Laminack had given Brown unqualified permission to drive his jeep or that Laminack had given Brown no permission whatsoever to drive his jeep. There was no evidence which would have authorized the jury to find that Brown had been given permission to drive the jeep only after the repairs were made. See generally Mattison v. Travelers Indemn. Co., 157 Ga. App. 372, 373 (1) (277 SE2d 746) (1981); American Employers Ins. Co. v. Johns, 122 Ga. App. 577, 579 (1) (178 SE2d 207) (1970). “Since there was no evidence on the trial on the question which the appellant requested the trial [court] to submit to the jury, there was no error in [its] refusal to submit such question.” Anthony v. Morris Hyles, Inc., 222 Ga. 628, 630 (151 SE2d 450) (1966).

2. State Farm objected to the second of the two questions submitted to the jury, urging that, as phrased, that question did not accurately reflect the actual terms of the automobile business exclusion contained in Laminack’s policy. The overruling of this objection is enumerated as error.

The policy issued by State Farm to Laminack contained the following exclusion: “There is no coverage: While any vehicle insured under this section is: being repaired, serviced, or used by any person employed or engaged in any way in a car business.” (Emphasis supplied.) As phrased, however, the second question asked the jury to determine whether the collision arose “out of the operation of a car business.” (Emphasis supplied.) “There are two main types of ‘automobile business’ exclusions. The ‘older type,’ providing a narrower exclusion and correspondingly greater insurance coverage, focuses on the use to which the automobile is being put at collision-time and is phrased in terms of excluding coverage for automobiles being ‘used’ in the automobile business. [Cits.]. . . . The exclusion in the present appeal is the ‘newer’ exclusion and its language . . . focuses on the person in whose charge the automobile is at collision-time.” Haley v. State Farm Mut. &c. Ins. Co., 130 Ga. App. 258, 260 (202 SE2d 838) (1973). See also Phoenix Ins. Co. v. Morters, 179 Ga. App. 40 (345 SE2d 128) (1986).

Thus, the second question that was submitted to the jury reflects an improper interpretation of the applicable exclusionary provision as being of the “older type.” By phrasing the question in terms of whether the collision arose “out of the operation of a car business,” the trial court, in effect, asked the jury to determine whether the jeep was “being used in an automobile business” at the time of the collision. Since the applicable exclusion was of the “newer type,” the relevant focus was upon Mr. Brown and not upon the use to which the jeep was being put at the time of the collision. Accordingly, the trial court erred in failing to sustain State Farm’s objection to the question and, consequently, erred in submitting that question to the jury.

3. Several of State Farm’s enumerations relate to the trial court’s instructions to the jury with regard to the automobile business exclusion provision contained in Laminack’s policy. All of the instructions to which these enumerations relate utilize the “arose out of the operation of a car business” language when discussing the exclusionary provision. As discussed in Division 2, the employment of such language does not accurately reflect the terms and scope of the applicable exclusion. Accordingly, the giving of the inapplicable instructions was erroneous.

4. Laminack was cross-examined with regard to statements that he had made in an earlier deposition. The purpose of this cross-examination was to show the existence of a conflict between his deposition testimony and his testimony at trial. At the conclusion-of the cross-examination, counsel for State Farm requested that he be allowed to read to the jury certain other portions of Laminack’s deposition so as to show the context in which its insured’s prior statements had been made. The trial court refused, and this ruling is enumerated as error.

OCGA § 9-11-32 (a) (5) provides, in pertinent part, “[i]f only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.” “Fairness demands that no less than all portions relevant to that interrogated about be introduced at the same time. These may fully explain any apparent conflict, or at least place the witness in better position to reconcile or explain it. A statement out of context and without accompanying explanatory matter may be damaging and unfairly so.” Wells v. Alderman, 117 Ga. App. 724, 735 (162 SE2d 18) (1968). It follows that the trial court erred in refusing State Farm the opportunity to introduce portions of Laminack’s deposition which were relevant to the parts introduced on his cross-examination. See Reeves v. Morgan, 121 Ga. App. 481 (6) (174 SE2d 460) (1970), rev’d on other grounds 226 Ga. 697 (177 SE2d 68) (1970). See also Strother Ford, Inc. v. Bullock, 142 Ga. App. 843, 846 (5) (237 SE2d 208) (1977); City Council of Augusta v. Youngblood, 120 Ga. App. 616 (1) (171 SE2d 766) (1969).

5. The trial court’s failure to give State Farm’s requested charge on the principle of revocation of consent is enumerated as error. However, “[w]e find that the trial judge’s refusal to give the . . . request to charge was not error, because the requested charge was . . . fairly given to the jury in the general charge of the court. ‘(I)t is no longer necessary to give the exact language . . . when the same principles are fairly given to the jury in the general charge of the court. [Cit.]’ [Cit.]” Shirley v. State, 245 Ga. 616, 619 (3) (266 SE2d 218) (1980).

6. The trial court’s charge as a whole is enumerated as error, the contention being that it was repetitive and argumentative. “ ‘When the whole charge of the court is excepted to, the exception will not be sustained unless the whole charge is wrong. If the object be to reach defects or imperfections in particular parts, they must be pointed out.’ [Cits.]” McTyre v. King, 215 Ga. 417, 421 (5) (110 SE2d 651) (1959). The enumeration “assigning error on the charge as a whole being argumentative and biased . . . presents nothing for consideration. . . .” Wright v. Concrete Co., 107 Ga. App. 190, 200 (9) (129 SE2d 351) (1962).

7. At the charge conference, the trial court indicated that it would not give a particular request to charge. However, this previously rejected instruction was included in the charge subsequently given to the jury. State Farm enumerates this as error, urging that it was deprived of the opportunity to pattern its argument to the law which was charged. After the charge was given, however, State Farm made no request for reargument. Therefore, “we conclude that the initial rejection of the requested instruction is not, by itself, a proper basis for the grant of a new trial.” Daniels v. State, 137 Ga. App. 371, 376 (4) (224 SE2d 60) (1976). See also Hudson v. State, 150 Ga. App. 126 (3) (257 SE2d 312) (1979).

Decided February 8, 1989.

John T. Croley, Jr., for appellant.

Donald D. Rentz, for appellees.

8. The remaining enumeration of error has been considered and found to be without merit.

Judgment reversed.

Sognier, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

The majority opinion relies on Reeves v. Morgan, 121 Ga. App. 481 (6) (174 SE2d 460) (1970). Reeves was overruled by the Supreme Court of Georgia on a different point. Further, Judge Quillian took exception to Division 5 and concurred in the judgment only. To cite and rely upon this case now lessens and limits the precedential value of the instant case. Otherwise, I concur fully.


text:
    77528.
    ANDERSON et al. v. STRECK.
    (378 SE2d 526)
   Beasley, Judge.

The dispositive question in this appeal from the grant of summary judgment to defendant Streck and the denial of such to the plaintiffs Anderson is whether or not the evidence on summary judgment demanded the conclusion as a matter of law that Streck was as a bona fide purchaser without notice under the circumstances of certain real estate transactions.

The Andersons, doing business as Larry Anderson Grading, contracted with North River Builders, Inc. (NRB) to grade and erect a structure on certain of NRB’s real property. NRB failed to pay them for the work and on March 17, 1986, they filed a claim of lien in the amount of $16,085. See OCGA § 44-14-361.

The Andersons remained unpaid and in January 1987 they filed suit against NRB. See OCGA § 44-14-361.1 (a) (3). NRB responded and plaintiffs moved for summary judgment which was granted on June 25, 1987. The court entered judgment against NRB for principal and interest in the amount of $21,221.12.

Meanwhile, in April 1987 Equitable Mortgage Resources, Inc., which held a security deed and agreement on the property, initiated foreclosure proceedings. Equitable advertised the foreclosure proceedings on April 9, 16, 23, and 30, 1987 in the official organ. The advertisement stated that the property would be sold subject to “all unpaid liens or judgments of record.”

Equitable foreclosed on May 5. The next day a deed under power was executed transferring title from NRB to Equitable. It stated that the “sale was made after advertising the time, place and terms thereof in the Fulton Daily Reporter (sic), . . .” Filing and recording occurred on May 22 and on June 12, Equitable conveyed the property by warranty deed to Streck.

The Andersons sued Streck alleging they continued to hold a valid lien against the property. They prayed for a special judgment establishing and foreclosing their lien in the principal amount of $16,085 plus all expenses of litigation including reasonable attorney fees and costs, and for execution permitting sale of the property in compliance with Georgia law governing non-judicial foreclosures.

The court concluded that there was no genuine issue of material fact as to Streck’s status, when he acquired title, as being that of a bona fide purchaser for value without notice of the Andersons’ lien.

The Andersons contend that the trial court erred in holding that Streck was a bona fide purchaser without, notice, because the deed under power in the chain of title incorporated by reference notice of the foreclosure advertisement in the Fulton Daily Reporter, which advertisement stated that the property was being sold subject to all unpaid liens and judgments of record. Therefore, they argue, Streck had constructive notice of the lien. They contend further that the ruling as to Streck’s status was error because Streck failed to offer any evidence that he lacked actual notice of the lien.

“ ‘The burden is on the party who moves for summary judgment to produce evidence which conclusively negates the essential elements entitling the respondent to recover under any theory that may be drawn fairly from the pleadings and the evidence. [Cits.]. . . . There is no duty placed upon the plaintiff to produce evidence until the defendant’s evidence pierces the plaintiff’s pleadings and demands a finding in defendant’s favor on the particular issue of fact made by the pleadings.’ [Cits.]” Hill v. Goodyear Tire &c. Co., 187 Ga. App. 890 (371 SE2d 661) (1988).

In order to enforce their lien, plaintiffs had to show that Streck purchased the property with actual or constructive notice of the lien, because equity extends protection to a bona fide purchaser for value and without notice. OCGA §§ 23-1-19; 23-1-20; 23-2-34; Dept. of Transp. v. Brooks, 254 Ga. 303, 318 (10) (328 SE2d 705) (1985). Thus, in order to prevail on his cross-motion for summary judgment, Streck had to produce evidence conclusively negating, inter alia, the elements of actual or constructive notice. See Trust Co. of N. J. v. Atlanta Aluminum Co., 149 Ga. App. 605 (255 SE2d 82) (1979), where the subsequent purchaser took property subject to a lien even though there was an intervening foreclosure.

The Andersons correctly state that Streck did not produce any evidence that he did not have actual notice of the recorded lien and judgment. However, there is a presumption of good faith which attaches to a purchaser for value and which remains until overcome by proof. Patellis v. Tanner, 199 Ga. 304, 310 (1)-312 (34 SE2d 84) (1945). The question then is whether or not the circumstances raise a question of fact regarding Streck’s having constructive notice of the lien.

Appellants argue that there is a factual issue of constructive notice because the deed under power incorporates by reference the foreclosure ads. This fails because at most, the deed under power states that the conveyance is made after the property was advertised in the official county organ. The wording does not incorporate by reference the language of the advertisements nor the terms of sale as contained therein; nor does it indicate directly that the conveyance is made subject to unpaid liens and judgments. Therefore, there was nothing to put subsequent purchaser Streck on notice to make further inquiry regarding encumbrances on the property outside what was discernible from the recorded chain of title.

Appellants cite Hardman v. Dahlonega &c. Chamber of Commerce, 238 Ga. 551 (233 SE2d 753) (1977), and Spencer v. Poole, 207 Ga. 155 (60 SE2d 371) (1950). The former involved a conveyance under a deed which made the conveyance expressly subject to the terms of a separate agreement of the same day; the latter involved a deed referring to a plat which, the court noted, “would ordinarily be considered as incorporated in the deed itself” and was itself recorded, with the record pages referred to in the deed. Id. at 156 (2).

Inasmuch as the evidence on summary judgment showed without dispute that Streck did not have actual or constructive notice of the lien at the time he purchased the property for value, the trial court did not err in granting judgment to Streck on his cross-motion for summary judgment and in denying the same to the Andersons. OCGA § 9-11-56.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.

Decided February 8, 1989.

Moore & Rogers, Robert D. Igram, for appellants.

Hudspeth & Benedict, Dean A. Williams, Osgood A. Williams, for appellee.


text:
    77585.
    MATCHETT v. THE STATE.
    (378 SE2d 404)
   Pope, Judge.

Defendant Ronnie Matchett was convicted of armed robbery and possession of a gun during the commission of a crime and he appeals.

1. Defendant first asserts the general grounds. The record shows defendant was positively identified both in court and out of court by the cashier of the store which was robbed. The testimony of the victim alone is sufficient to convict the defendant. Gay v. State, 143 Ga. App. 857 (1) (240 SE2d 226) (1977); see OCGA § 24-4-8. Additionally, circumstantial evidence was produced which linked defendant with the crime. The evidence was thus sufficient to sustain the conviction.

2. Defendant moved for a directed verdict of acquittal on the ground that the victim’s out-of-court identification of the defendant was improperly suggestive. However, the victim’s in-court identification of the defendant was sufficient to convict him. Moreover, the record shows that defendant’s attorney expressly abandoned the motion to suppress which was filed prior to trial in regard to the out-of-court identification. Defendant did not object to the victim’s testimony concerning her out-of-court identification of the defendant and first raised the issue at the close of the State’s evidence in his motion for directed verdict. Having waived the objection to the evidence, he was not entitled to a directed verdict on the ground that the evidence was inadmissible. See Skinner v. State, 155 Ga. App. 754 (272 SE2d 570) (1980); cf. Maness v. State, 159 Ga. App. 707 (285 SE2d 193) (1981) (when defendant’s counsel stated he had no objection to the introduction of the evidence in question, defendant thus waived his right to appeal the denial of his earlier motion to suppress the evidence).

Even if defendant had not waived his objection to the out-of-court identification, we find it provided no ground for a directed verdict or for the grant of a new trial. At the showup during which he was identified, defendant was the only person in the room, other than the victim, who was not a police officer. Although as a general rule a police station showup, as opposed to a conventional lineup, is not favored, “in each case it is necessary to look at the ‘totality of the circumstances.’ Davis v. State, 233 Ga. 847 (213 SE2d 695) [(1975)].” Sherwin v. State, 234 Ga. 592, 593 (216 SE2d 810) (1975). The victim in this case made the out-of-court identification of defendant approximately one hour after the robbery. The evidence showed she had ample opportunity to observe the defendant at the scene of the crime and that she made an unequivocal identification of the defendant at the showup. Thus, the totality of the circumstances shows that the showup was not improper and that it did not improperly taint the victim’s in-court identification of him. The trial court did not err in denying the motion for directed verdict or the motion for a new trial.

Decided February 8, 1989.

William R. Folsom, for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Carley, Chief Judge.

text:
    77720.
    TANNER v. BROOKS et al.
    (378 SE2d 405)
   Carley, Chief Judge.

Appellee Jerry Brooks is the owner and operator of a business which provides janitorial services for commercial buildings. Nathan Charlton is one of the individuals who was hired by appellee to perform the actual janitorial work. When Charlton filed a claim for unemployment compensation benefits, he listed appellee as his most recent employer. A “field and wage investigation” led to the determination that, although Charlton was a covered employee under the Employment Security Law, appellee had paid no unemployment compensation taxes on the wages that he had paid to Charlton. Based upon the further determination that appellee was not exempt from the payment of the taxes, Charlton’s claim for unemployment compensation was approved and appellee was ordered to pay the unemployment compensation taxes. When appellee’s administrative appeals proved unsuccessful, he appealed to the superior court. The superior court reversed. The instant appeal results from this court’s grant of the application of the appellant-Commissioner of the Department of Labor for a discretionary appeal from the superior court’s order.

1. The administrative findings that appellee had paid Charlton “wages” within the meaning of OCGA § 34-8-51 (a) and that appellee was an “employer” within the meaning of OCGA § 34-8-38 are undisputed. Accordingly, the only issue for determination is whether there was sufficient evidentiary support for the administrative finding that appellee was not exempt from the payment of unemployment compensation taxes under OCGA § 34-8-40 (g).

OCGA § 34-8-40 (g) provides that “[s]ervices performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown that: (1) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; (2) Such service is outside the usual course of the business for which such service is performed or such service is performed outside of all the places of business of the enterprise for which such service is performed; and (3) Such individual is customarily engaged in an independently established trade, occupation, profession, or business.” (Emphasis supplied.) “Since the above matters are stated conjunctively and not disjunctively, all three of these elements must be established [by the employer] in order that an employer working an individual for wages may be exempted from the unemployment-compensation act.” Young v. Bureau of Unemployment Comp., 63 Ga. App. 130, 136 (10 SE2d 412) (1940). See also Sarah Coventry, Inc. v. Caldwell, 243 Ga. 429, 430 (254 SE2d 375) (1979); Vocational Placement Svcs. v. Caldwell, 168 Ga. App. 198, 199 (1) (308 SE2d 618) (1983); Moore v. Williams, 95 Ga. App. 309, 311 (97 SE2d 718) (1957). Accordingly, if appellee failed to prove any one of these three elements, he would not be entitled to an exemption from the payment of unemployment compensation taxes and the superior court erred in reversing the administrative determination.

A review of the evidence shows the following: Upon appellee being engaged to provide janitorial services, he would accompany one of his employees to the customer’s place of business and introduce the employee to the customer. If the employee who was selected by appellee proved acceptable to the customer, appellee then assigned that employee to that particular job and made him responsible for all of the janitorial needs that appellee had agreed to provide. Based on this evidence, one of the administrative findings was that appellee had failed to show that “such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed.” Thus, there was an administrative finding that appellee had not proven the second of the three elements of OCGA § 34-8-40 (g).

OCGA § 34-8-40 (g) (2) is phrased in the disjunctive rather than the conjunctive. Accordingly, a showing by appellee of either of the alternative grounds provided therein would be sufficient as to this element of the three-pronged test for exemption from the payment of unemployment compensation taxes on Charlton’s wages. As to the first alternative ground provided in OCGA § 34-8-40 (g) (2), the evidence clearly showed that the janitorial service that was provided by Charlton was clearly within rather than “outside the usual course of [appellee’s janitorial] business for which [Charlton’s] service [was being] performed.” See generally Sarah Coventry, Inc. v. Caldwell, supra at 434 (b); Vocational Placement Svcs. v. Caldwell, supra at 200 (b). As to the second alternative ground provided in OCGA § 34-8-40 (g) (2), “the Supreme Court, in Sarah Coventry, held that in construing ‘[this element], we must give effect to the legislative intent thereof, which we deem to be to enable the employer to effectively administer the activities of the individual by limiting the area of performance of services to such areas as the employer can practically oversee and maintain some surveillance and supervision.’ [Cit.]” Vocational Placement Svcs. v. Caldwell, supra at 200. The evidence in this regard shows that appellee conducted his janitorial business on the business premises of others and that, by assigning an employee to a specific job site, appellee “limit[ed] the area of performance of [the] services to [an] area [that] the employer [could] practically oversee and maintain some surveillance and supervision.” Vocational Placement Svcs. v. Caldwell, supra at 200. See also Redwine v. Wilkes, 83 Ga. App. 645 (1) (64 SE2d 101) (1951); Babb & Nolan v. Huiet, 67 Ga. App. 861 (21 SE2d 663) (1942). Charlton had no discretion as to where his janitorial services were performed because those services could be performed only at those specific locations that appellee had assigned him. Compare Sarah Coventry, Inc. v. Caldwell, supra at 434; Vocational Placement Svcs. v. Caldwell, supra at 200-201.

Decided February 8, 1989.

It follows there was sufficient evidence presented to show that the services performed by Charlton were within the usual course of appellee’s janitorial business, and that those services were performed at one of those designated places over which appellee could maintain some element of control. Thus, the evidence supports the administrative findings that appellee had failed to establish either alternative ground of OCGA § 34-8-40 (g) (2) and that he could not, therefore, show all three of the elements necessary to qualify for an exception from the payment of unemployment compensation taxes on Charlton’s wages. See generally Caldwell v. Charlton County Bd. of Education, 157 Ga. App. 395 (277 SE2d 764) (1981); Ga. Real Estate Comm. v. Hooks, 139 Ga. App. 34 (227 SE2d 864) (1976). It follows that the superior court erred in reversing the administrative determination that appellee was not exempt from the payment of those taxes.

2. Appellant’s remaining enumeration is rendered moot by virtue of our ruling in Division 1.

Judgment reversed.

Deen, P. J., and Sognier, J., concur.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Wayne P. Yancey, Senior Assistant Attorney General, Annette M. Cowart, Assistant Attorney General, for appellant.

Fred B. Sheats, for appellees.


text:
    77783.
    PERKINS HARDWOOD LUMBER COMPANY et al. v. BITUMINOUS CASUALTY CORPORATION.
    (378 SE2d 407)
   Carley, Chief Judge.

This declaratory judgment action was precipitated by a tort action that was filed by appellant-defendants Edward DeLoach, Troy Denison and Jerry Mosley against appellant-defendant Perkins Hardwood Lumber Company (Perkins Hardwood). In that underlying tort action, it had been alleged that the negligence of appellant Perkins Hardwood was the proximate cause of injuries sustained in a multivehicle collision. The allegations of negligence related to a wood fire begun by an employee of appellant Perkins Hardwood, the smoke from which fire had allegedly reduced visibility on the roadway and' caused the collision.

At the time of the collision, appellee-plaintiff Bituminous Casu-; alty Corporation was the liability carrier for appellant Perkins Hard-: wood. After the tort action was filed, appellee initiated this declaratory judgment action, seeking a declaration that, under the “pollution exclusion” of the policy, it afforded no liability coverage to appellant Perkins Hardwood for damages resulting from the collision. Cross-' motions for summary judgment were filed. After conducting a hearing, the trial court granted summary judgment in favor of appellee and denied appellants’ motion for summary judgment. Appellants appeal from the trial court’s orders.

1. In relevant part, the “pollution exclusion” provides: “This in-' surance policy does not apply (1) to bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, release, or escape of pollutants. . . . Subparagraph (1) of this exclusion does not apply to bodily injury or property damage caused by heat, smoke or fumes from a hostile fire. As used in this exclusion, a hostile fire means one which becomes uncontrollable, or breaks out from where it was intended to be. Pollutants mean any solid, liquid, gaseous or thermal irritant or contaminant including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes material to be recycled, reconditioned or reclaimed.” The uncontradicted, evidence of record shows that the fire in question was not a “hostile fire.” Thus, the specific limitation on the scope of the exclusion is inapplicable and the contractual interpretation issue that is presented for resolution is whether the exclusion is so broad as to negate the existence of liability coverage for injuries which allegedly resulted from the discharge of smoke from a non-hostile wood fire.

Appellants urge that the pollution exclusion is ambiguous as to whether the smoke from a wood fire is deemed to be a pollutant. However, the exclusion clearly and unambiguously defines a pollutant as an “irritant or contaminant including smoke. . . .” The exclusion does not require that the “smoke” result from the burning of any specified material in order to be considered an “irritant or contaminant.” “ ‘It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties.’ [Cit.] The law will not make a contract for the parties which is different from the contract which was executed by them.” Sellers v. Alco Fin., 130 Ga. App. 769, 770 (4) (204 SE2d 478) (1974). “[A] contract of insurance should follow the cardinal rule of construction so as to carry out the true intention of the parties, and their rights are to be determined by the terms of the contract. Its language should receive a reasonable construction and not be extended beyond what is fairly within its plain terms. Where the language fixing the extent of coverage is unambiguous, as here, and but one reasonable construction is possible, this court must enforce the contract as written. [Cits.]” Fidelity &c. Co. of Md. v. Sun Life Ins. Co. of America, 174 Ga. App. 258, 260 (329 SE2d 517) (1985). “[A] policy of insurance ‘which, when construed reasonably and in its entirety, unambiguously and lawfully limits the insurer’s liability, cannot be extended beyond what is fairly within its plain terms.’ [Cit.]” Showers v. Allstate Ins. Co., 136 Ga. App. 792, 793 (222 SE2d 198) (1975). No ambiguity remains as to the scope of the pollution exclusion and, under the proper construction of that provision, liability coverage is excluded for injuries arising out of the discharge of smoke from a non-hostile wood fire.

2. Appellants further urge the inapplicability of the exclusion on the ground that the underlying tort action is not predicated upon the discharge of the smoke but upon the failure of appellant Perkins Hardwood to warn motorists of the presence of the smoke. However, the policy broadly excludes coverage for damages “arising out of” the discharge of smoke. Any damages that may have resulted from a subsequent failure to warn of the presence of the Smoke would clearly be damages “arising out of” the initial discharge of the smoke. “[N]o right of recovery would exist at all had the [discharge of smoke] not originally occurred. . . . ‘ “Courts have no more right by strained construction to make the policy more beneficial by extending the coverage contracted for than they would have to increase the amount of the insurance. [Cit.]” ’ [Cit.]” Cotton States Mut. Ins. Co. v. Crosby, 244 Ga. 456, 457-458 (260 SE2d 860) (1979). See also St. Paul Fire &c. Ins. Co. v. Cohen-Walker, Inc., 171 Ga. App. 542, 545 (320 SE2d 385) (1984). The underlying tort action seeking a recovery of damages “arising out of” the discharge of smoke and liability coverage for such damages is excluded under the terms of the policy.

Decided February 8, 1989.

Zorn & Caldwell, William A. Zorn, for appellants.

Bovis, Kyle & Burch, James E. Singer, for appellee.

3. The trial court correctly granted summary judgment in favor of appellee and correctly denied appellants’ motion for summary judgment.

Judgments affirmed.

Deen, P. J., and Sognier, J., concur.


author: Birdsong, Judge.

text:
    77799.
    BALDUF v. THE STATE.
    (378 SE2d 409)
   Birdsong, Judge.

Appellant was tried for aggravated assault. The evidence presented at trial showed that while appellant was visiting in his girl friend’s home the victim arrived and a “scuffle” ensued. Appellant fired a revolver, causing the victim to back away, at which time appellant fired again and wounded him. He appeals from the jury’s verdict of guilty, enumerating as error the trial court’s overruling of his motion for new trial “without allowing evidence to be presented to prove the case.” Held:

At the hearing on the motion for new trial, appellant represented himself. Appellant asserted he had received ineffective assistance of counsel because his retained attorney had failed to subpoena a doctor who had treated him for injuries he allegedly incurred during the scuffle with the victim. Appellant also complained of certain events which he had learned about after the trial concerning his attorney’s financial difficulties. The trial judge ruled that based on his observation of the manner in which the attorney conducted appellant’s trial defense and what appellant had presented in the hearing on the motion for new trial, the court could not conclude that appellant’s representation had been ineffective. In his pro se appeal brief, appellant alleges 13 additional points of evidence that he contends could have been proven at the motion hearing in support of his assertion of inadequacy of counsel. However, none of these allegations in any way refutes the uncontradicted testimony that appellant shot the victim as he was retreating, or indicates any deficiency in his attorney’s conduct of his defense. Moreover, the record affirms that trial counsel submitted motions, made objections, presented evidence and vigorously cross-examined the State’s witnesses.

Decided February 8, 1989.

Dennis R. Balduf, pro se.

Johnnie L. Caldwell, Jr., District Attorney, William H. Stevens, Assistant District Attorney, for appellee.

“Under the holding in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), there is a two-pronged test for determining the validity of a claim of ineffective assistance of counsel: whether (1) counsel’s performance was deficient; and whether (2) this deficiency prejudiced the defense (there is a reasonable possibility that the outcome of the proceedings would have been different, but for counsel’s deficiency). Brogdon v. State, 255 Ga. 64, 68 (335 SE2d 383) (1985). In Strickland at 466 U. S. 686, the court approved a ‘reasonably effective assistance’ standard which had already been adopted in Pitts v. Glass, 231 Ga. 638 (203 SE2d 515) (1974). Thus, ‘(t)he reasonableness of counsel’s performance is then considered, in light of the totality of the circumstances, viewed from counsel’s perspective at the time of trial, thereby eliminating the possible distortions of hindsight analysis. [Cit.] The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.’ Brogdon at 68. As to deficient performance, errors in judgment and tactical errors do not constitute denial of effective assistance of counsel. [Cit.] The evidence in this case supports the trial court’s finding of effective assistance of counsel.” (Indention omitted.) Thompson v. State, 188 Ga. App. 508, 509 (373 SE2d 292). Accord Gainer v. State, 188 Ga. App. 314 (372 SE2d 848); Lowe v. State, 187 Ga. App. 678 (2) (371 SE2d 238).

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Banke, Presiding Judge.

text:
    77479.
    FIRST UNION NATIONAL BANK OF GEORGIA v. J. REISBAUM COMPANY.
    (378 SE2d 317)
   Banke, Presiding Judge.

Sweats, Inc., ordered certain merchandise from the appellee, J. Reisbaum Company, simultaneously tendering payment in the form of a draft drawn by the appellant, First Union National Bank of Georgia, upon another bank. After the merchandise was delivered, Sweats, Inc., instructed First Union to instruct the drawee bank to stop payment on the draft. First Union complied, and Reisbaum thereafter brought the present action against both Sweats, Inc., and First Union seeking to recover the balance owed on the merchandise, plus interest and court costs. He obtained a default judgment against Sweats, Inc., and a summary judgment against First Union. On appeal, First Union asserts that a material issue of fact was created by its response to the summary judgment motion.

The parties are in agreement that First Union is entitled to assert any defense which would have been available to Sweats, Inc. In opposing the motion for summary judgment, First Union asserted that the merchandise which was shipped was not in conformity with Sweats’ order, and it reiterated this defense in its statement of material facts filed pursuant to Uniform Superior Court Rule 6.5. In support of this defense, First Union submitted the affidavit of the customer service specialist in its employ who had prepared and filed the stop-payment order at the request and direction of Sweats. Attached to the affidavit was a copy of the stop-payment request form, which specified the following reason for the request: “Discrepancy on goods delivered for which check was payment.”

The trial court concluded that, notwithstanding the employee’s representation that the averments contained in her affidavit were based on personal knowledge, it was evident that she in fact “ha[d] no personal knowledge of the shipment but [was] simply writing it down . . . what she was told by a third party.” Consequently, the court ruled that First Union had failed to create a material issue of fact with respect to the nonconformity defense. (At the hearing on the summary judgment motion, the appellant attempted to submit an affidavit from Sweats’ president in support of its nonconformity defense, but the court granted a motion by Reisbaum to strike this affidavit as untimely.) Held:

“On a motion for summary judgment, the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. . . . [T]he moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.” Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973).

While the affidavit in question may not have constituted evidence in support of the nonconformity defense, First Union had no initial burden of coming forward with such evidence. The assertions contained in First Union’s response to the motion for summary judgment were sufficient, without evidentiary support, to raise the issue of nonconformity as a defense to the complaint, thereby placing the burden on Reisbaum, as movant, to come forward with evidence negating this defense in order to establish its entitlement to summary judgment. Accord Hepner v. Southern R. Co., 182 Ga. App. 346, 351 (356 SE2d 30) (1987). Since Reisbaum failed to come forward with such evidence, we hold that the trial court erred in granting its motion for summary judgment.

Judgment reversed.

Birdsong and Beasley, JJ., concur.

On Motion for Rehearing.

Citing the United States Supreme Court’s decision in Celotex Corp. v. Catrett, All U. S. 317 (106 SC 2548, 91 LE2d 265) (1986), appellee Reisbaum argues on motion for rehearing that we should abandon the rule that a party moving for summary judgment has the burden of negating the existence of facts as to which the respondent would have the burden of proof at trial. While we are bound by the United States Supreme Court’s interpretation of Rule 56 (c) of the Federal Rules of Civil Procedure, we must, of course, follow the decisions of our own Supreme Court with respect to the meaning of Rule 56 (c) of the Georgia Civil Practice Act, OCGA § 9-11-56 (c). See Hepner v. Southern R. Co., 182 Ga. App. 346, 350-351 (356 SE2d 30) (1987). The Georgia Supreme Court has consistently held that Rule 56 (c) of the CPA requires a party moving for summary judgment to negate all material allegations made by the respondent, even those as to which the respondent would have the burden of proof at trial. See, e.g., Burnette Ford, Inc. v. Hayes, 227 Ga. 551, 552 (181 SE2d 866) (1971); Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973); Taylor v. Taylor, 243 Ga. 506, 508 (255 SE2d 32) (1979); Nalley v. Karr, 242 Ga. 16, 17 (247 SE2d 755) (1978).

We further note that even if the Celotex decision controlled our interpretation of CPA Rule 56 (c), it would not require a different result in the present case. In Celotex, the movant on motion for summary judgment was being sued by the respondent based on allegations that the respondent’s husband had died from exposure to asbestos manufactured by movant. The defendant manufacturer asserted in its summary judgment motion that although it had served interrogatories upon the plaintiff seeking the identity of any witnesses who could substantiate the allegation that her husband had been exposed to its asbestos products, the plaintiff had failed to provide such information. The Supreme Court held that the manufacturer was not required under such circumstances to come forward with evidence affirmatively negating the respondent’s allegation that such exposure had occurred, stating: “In our view, the plain language of Rule 56 (c) [of the Federal Rules of Civil Procedure] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” (Emphasis supplied.)

Decided January 3, 1989

Rehearing denied February 9, 1989.

Troutman, Sanders, Lockerman & Ashmore, Herbert D. Shell-house, William T. Plybon, for appellant.

Macey, Wilensky, Cohen & Wittner, Heldon R. Wittner, Chris tine C. Daniel, H. William Cohen, for appellee.

The proposition that a defendant may negate a plaintiff’s allegations on motion for summary judgment by showing that the plaintiff has demonstrated an inability or unwillingness to reveal any evidentiary support for those allegations during the discovery process has previously been recognized by this court. See e.g., Martin v. Newman, 162 Ga. App. 725 (1) (293 SE2d 18) (1982), which was decided prior to the Celotex decision, and Munna v. Lewis, 181 Ga. App. 860 (2) (354 SE2d 181) (1987), which was decided afterwards. However, the case before us clearly does not fall into this category. Here, the party moving for summary judgment (Reisbaum) did so solely on the basis of the affidavit of its president, and the record does not reflect that the parties have ever engaged in any discovery at all. Thus, in contrast to the situation in Celotex, Martin v. Newman, and Munna v. Lewis, it has not been demonstrated that the respondent (First Union) was opposing the motion on the basis of factual allegations which it had previously demonstrated an inability or unwillingness to substantiate.

Additionally, we note that in Celotex, Martin v. Newman and Munna v. Lewis, the character of the factual allegations upon which the respondent relied in opposing the motion for summary judgment was such that it would not have been reasonable to expect the movant to disprove them without some guidance as to what sort of evidence the respondent intended to present in support of them. That is not the case here. First Union’s defense to Reisbaum’s claim was that the goods shipped by Reisbaum did not conform to the purchaser’s order. We can conceive of no reason why Reisbaum would not have been in as good a position as First Union to come forward with evidence on this issue, given that, as between the two of them, it was the only one directly involved in the transaction and thus the only one with firsthand knowledge of what goods were shipped. For these reasons, we conclude that the rationale of Celotex, Martin v. Newman, and Munna v. Lewis is not applicable to the present case; and we reiterate our holding that the burden was on Reisbaum, as movant on motion for summary judgment, to come forward with evidence negating First Union’s nonconformity defense.

Motion for rehearing denied.


text:
    77907.
    GULLY v. GLOVER.
    (378 SE2d 411)
   Birdsong, Judge.

This is an appeal of a bench trial judgment entered in favor of appellee landlord for damages to rental property in the amount of $8,417.

Appellee landlord leased a house to appellant Doris Gully and her son James E. Gully. The term of the lease was from April 15, 1985 to April 14, 1986. With the knowledge of his parents and appellee landlord, James E. Gully moved into the premises with a woman named Linda Law. At no time did Doris Gully actually reside in or assume actual physical possession of the premises, although she had the legal right to do so in accordance with the terms of the lease. At the end of the lease term, the premises was not surrendered to the appellee landlord. James Gully and Linda Law continued to reside in the house. The written lease contained a provision that “ [i]f Tenant remains in possession of premises after expiration of the term hereof . . . Tenant shall be a tenant at will . . . and there shall be no renewal of this lease by operation of law.” Appellee landlord was noti- . fied on August 12, 1986, by Ms. Law that the premises was to be vacated, and he regained possession of the premises on August 26, 1986. Appellee then discovered that the property had been subjected to substantial damage.

At the time the lease was signed, appellants Doris Gully paid the ■security deposit and rent for the first month. Thereafter, rent was ■paid by.the occupants. When the rent was late, appellee landlord would contact appellant Doris Gully who would act as a “go-between” for him contacting Linda Law to pay the rent. At some point in time, “around a year” after the lease was entered, and after its termination, ■ James E. Gully apparently moved out. After the lease period expired, the appellee continued to look to Linda Law and James Gully for the rent or to appellant Doris Gully if the rent had not been paid. Appellee landlord, in fact, contacted appellant Doris Gully at least “a couple of times” regarding late rent payments after expiration of the lease period.

Eugene Gully testified that after his son met Linda Law he asked his parents to help them find a place to live, “which we did.” Appellee landlord apparently would not enter a lease with only James Gully as a tenant. Appellant in her answer to plaintiff/appellee’s complaint admitted that she had entered the lease and further averred that she did so “as a guarantor for her son.”

The trial court entered judgment in favor of the appellee landlord against appellants Doris Gully and James E. Gully, jointly and severally. Held:

1. Appellee asserts that this court lacks jurisdiction to entertain this appeal as appellant failed to file her notice of appeal within thirty days of the entry of judgment.

Judgment was entered on June 16, 1988; appellant’s motion for new trial was denied on August 23, 1988; and, appellant’s notice of appeal was filed on August 30, 1988.

OCGA § 5-6-38 (a) pertinently provides that “[a] notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; but when a motion for new trial . . . has been filed, the notice shall be filed within 30 days after the entry of the order . . . overruling, or . . . disposing of the motion.” In Pillow v. Seymour, 255 Ga. 683, 684 (341 SE2d 447), it was held that “[w]here a motion for new trial is not a proper vehicle for review of a trial court’s action, the motion has no validity and will not extend the time for filing the notice of appeal.” (Emphasis supplied.) And, “ ‘ “[objections which go to the judgment only, and do not extend to the verdict, cannot properly be made grounds of a motion for new trial.” ’ ” Samuels v. Mullins, 181 Ga. App. 665 (353 SE2d 564). Nevertheless, OCGA § 9-11-52 (c) reflects that a motion for new trial may be used in addition to the filing of motions in attacking fact findings, by the court in non-jury trials, contained in the entered judgment. “A motion for a new trial is a [proper] means of seeking a retrial or reexamination, in the same court, of an issue of fact, or of some part or portion thereof, after decision by a jury . . . or a decision by the court thereon.” (Emphasis supplied.) Ga. Prac. & Proc. (5th ed.), Motion for New Trial, § 24-1; see Sunn v. Mercury Marine, 166 Ga. App. 567, 568 (305 SE2d 6).

In the case sub judice, appellant’s motion for new trial was based on the general grounds. Although the motion asserted that the “verdict” was contrary to the evidence, it is clear from examining both the motion and the judgment as a whole that the motion, in fact, was based on the grounds that the trial court’s findings of fact contained in the judgment were contrary to and not supported by admissible evidence of record. There is no magic in the nomenclature of a motion or other pleading, “we will construe them to. serve the best interests of the pleader, judging the pleading by its function rather than by its name.” Holloway v. Frey, 130 Ga. App. 224 (3) (202 SE2d 845). Accordingly, we find that the motion for new trial was procedurally proper, and that the period for filing notice of appeal had not expired. OCGA §§ 5-6-38 (a); 9-11-52 (c).

2. Appellant asserts that the trial court erred in finding that the tenants did not surrender the premises at the conclusion of the lease thereby becoming tenants at will; the appellant/defendants continued to be subjected to all other provisions of the lease between the parties; when the premises were surrendered, they were substantially damaged; and, this damage occurred during the time of the appellant/ defendant’s possession of the premises under the lease. At the onset, we note OCGA § 9-11-52 (a) provides that “[fjindings . . . shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”

OCGA § 44-7-10 pertinently provides that “[t]he tenant shall deliver possession to the landlord at the expiration of his term. . . .” Appellee landlord testified that possession of the property was not surrendered to him before August of 1986. The trial transcript further shows that the appellant’s co-tenant son continued to physically occupy the premises for some period after the written lease expired, and that appellant Doris Gully continued to act as a “go-between” for the appellee landlord when the rent payment was late. Thus, the trial transcript supports the trial judge’s finding that the tenants did not surrender the premises at the conclusion of the lease. Having found no basis for reversing this finding, we find the trial court correctly concluded that the terms of the lease caused the tenants who then were but mere hold-overs to assume the legal status of tenants at will. See generally Pindar, Ga. Real Estate Law, Tenancies & Leases, § 11-39; EGL, Landlord & Tenant, § 14 (e), 15 (b). The case of Turman v. MacLachlan, 257 Ga. 69 (354 SE2d 825), cited by appellant, is distinguishable from the facts of this case.

The trial court technically erred in holding that the defendants, who included appellant Doris Gully, continued to be subjected to all other provisions of the lease. “ ‘One who is a tenant at will by virtue of holding over after the expiration of the term of his lease holds the premises subject to the general terms and conditions specified in the lease, except so far as modified by mutual agreement.’ ” Colonial Self Storage &c. v. Concord Properties, 147 Ga. App. 493 (1) (249 SE2d 310). Certainly, the “general terms and conditions” of the lease would include, at a minimum, provisions for rent and repairs by the landlord and tenant. Thus, the error would not affect the substantial rights of the parties, and was harmless. OCGA § 9-11-61.

The trial transcript also supports the trial judge’s findings of fact that when the premises were surrendered they were substantially damaged, and this damage occurred when the defendants were in possession of the premises under the lease. From the testimony of appellee landlord, from the nature and extent of property damage as reflected by photographic exhibits, and from the admissions made by Eugene Gully as to property deterioration during the year leasing period, some evidence exists to support the trial court’s findings. In fact, we believe the record supports a finding that the damage had substantially occurred before expiration of the written lease signed by the appellant and her co-tenant son.

3. Appellant asserts that she should have been granted judgment as a matter of law because her obligations on the lease terminated on April 14, 1986. We find this enumeration to be without merit.

We are satisfied that appellant by her statements and conduct, reasonably caused appellee landlord to believe that she consented to have her son in her behalf retain physical possession of the premises, both during and after the lease term. Thus, appellee landlord could rely upon this apparent authority vested by appellant in her son as her implied agent. OCGA § 10-6-1; Hinely v. Barrow, 169 Ga. App. 529, 530 (313 SE2d 739). Accordingly, appellant was legally bound by her son’s act of retaining possession of the property after expiration of the lease term, and pursuant to the provisions of the lease, she became a tenant at will with her son. Consequently, either as a tenant or subsequently as a tenant at will, appellant was liable for any damages caused during her tenancy in violation of the general terms of the lease regarding repairs by the tenant.

Moreover, as above indicated, the trial transcript supports a finding of fact that the damage substantially occurred before the written lease terminated. Thus, assuming appellant’s obligations under the lease had terminated on April 14, 1986, her liability for damages to the property would remain.

In view of the above, we need not determine if appellant’s conduct in this matter was so grossly negligent as to amount to a constructive fraud which along with appellee landlord’s detrimental reliance thereon would give rise to equitable estoppel. See generally OCGA § 24-4-27.

This enumeration of error is without merit.

4. Appellant asserts that the trial court erred in admitting in evidence plaintiff’s exhibit number 7, an alleged hourly time schedule as to each repair job undertaken on the premises and as to each employee working thereon. We disagree.

At trial the appellee landlord testified without objection as to the people who helped repair the premises and as to the total number of hours spent by the group. The appellant objected subsequently to the admission of a written record regarding the time taken and persons performing the repair work. The basis of appellant’s objection was that “we have only one plaintiff in the case and that’s Mr. Glover. And what he’s submitting here is work that was supposed to have been done” by others, that is plaintiff is attempting to “recover for their labor.” It is obvious that the objection posed by appellant is not in proper form. Appellant now attempts to expand his enumeration of error and the scope of his objection at trial by also arguing that the appellee failed to prove its damages with certainty as its claim for labor was “estimated.” Appellant did not object to the testimony of appellee regarding either the number of hours spent in making repairs or as to the estimated hourly value of the labor spent on repairs. Thus, in regard to these new matters, there is nothing for us to review on appeal since appellant failed to make his objection at trial on the specific ground he now attempts to raise on appeal. Weaver v. State, 179 Ga. App. 641 (7) (347 SE2d 295). Moreover, “ ‘[a]s “(a)n enumeration of error cannot be enlarged to include other issues not made therein” [cit.] appellant’s attempt to enlarge his . . . enumeration by further asserting that’ ” appellee has failed to prove its damages with certainty is not properly before this court. Burke v. State, 153 Ga. App. 769 (1) (266 SE2d 549).

Decided February 9, 1989.

Claude E. Hambrick, Robert Loewenthal, for appellant.

Alfred L. King, Jr., for appellee.

Construing the above trial objection as being predicated on the specific grounds of lack of relevancy, we will address this enumeration of error on that basis.

Although irrelevant matter should be excluded, OCGA § 24-2-1, “ ‘(t)he issue as to the relevancy and materiality of evidence is for the trial court.’ ” Wright v. State, 186 Ga. App. 231 (2) (c) (366 SE2d 834). Thus, “ ‘[admissibility of evidence is a matter which rests largely within the sound discretion of the trial court,’ ” Santone v. State, 187 Ga. App. 789 (3) (371 SE2d 428), “ ‘and in the absence of an abuse of judicial discretion, this court will not interfere’ with the trial court’s ruling.” Palmer v. State, 186 Ga. App. 892, 898-899 (369 SE2d 38). We find no abuse of discretion in this ruling. Moreover, as the appellee landlord previously had testified without objection as to the total hours of work required for repair of the premises and as to those persons who helped repair the premises, assuming arguendo error had occurred, it would be harmless. OCGA § 9-11-61.

Appellant’s other assertions of error are without merit.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.