text:
    A90A1793.
    JAMES, HEREFORD & McCLELLAND, INC. v. POWELL.
    (402 SE2d 348)
   Birdsong, Presiding Judge.

This appeal follows the second trial of Thomas O. Powell’s suit against the defendant insurance agency (James, Hereford & McClelland, Inc.) for fraud in connection with his application for disability insurance. Powell complained that he applied for disability insurance through the insurance agency, and was denied insurance because of material misrepresentations inserted in the application by the defendant’s employee to the effect that Powell had not had any previous disability.

The first trial resulted in a verdict for defendant, which we reversed for an erroneous grant of directed verdict on the issue whether a fiduciary relationship existed which would excuse any lack of diligence of Powell. Powell v. James, Hereford & McClelland, 189 Ga. App. 747 (377 SE2d 683). The second trial resulted in a verdict for Powell for $96,000 actual damages and $40,000 punitive damages. This appeal follows the denial of judgment n.o.v. to defendant. Held:

1. The evidence construed most favorably to the verdict shows that in June 1982, six months before he applied for the disability policy, Powell’s orthopedist, Dr. Bickerstaff, executed forms saying he was totally disabled, so as to relieve him of paying premiums on a life insurance policy. Powell had sustained a back injury in 1975 and did not work again until 1980. From 1980 he worked in construction until January 1983, less than a month after he applied for disability insurance, when he fell in a store and injured his back again.

Powell paid a conditional premium when he applied for coverage, but the application provides clearly that coverage was conditional on acceptance by the insurer. The insurer at first approved the policy but then decided not to issue or deliver the policy after it “receiv[ed] information from Dr. Bickerstaff . . . that [Powell] has been permanently disabled due to back . . . and neck injuries since at least 1978. . . . The policy was not issued because [Powell] made material misrepresentations on the disability insurance application concerning his medical history.” It is clear from this statement that the insurer declined insurance because it learned Powell was disabled when he applied for disability insurance, and the evidence shows that whether it learned these facts after material misrepresentations had been made or even if the facts had been truthfully represented, coverage would have been denied.

There is no evidence Powell could have obtained disability coverage from any source if his medical history were known.

In cases where the insurance agent made a “material” misrepresentation, the cause of action is generally against the insurer for coverage, where the insurer has accepted the risk and agreed to provide a contract for coverage. The theory is that conditions which enter into the validity of the contract at its inception were waived by the insurer’s agent (Metropolitan Life Ins. Co. v. Hale, 177 Ga. 632 (170 SE 875); Mechanics &c. Ins. Co. v. Mutual Real Estate &c., 98 Ga. 262 (1) (25 SE 457)); also, the insurer’s agent’s fraudulent insertion of false answers in an application imputes to the insurer knowledge of the falsity and estops the insurer from denying such notice. National Accident &c. Co. v. Dauis, 179 Ga. 595 (176 SE 387); reversed on other grounds, Stillson v. Prudential Ins. Co., 202 Ga. 79 (42 SE2d 121); Clubb v. American Accident Co. &c., 97 Ga. 502 (25 SE 333).

While the insured may thus have a cause of action against the insurer for coverage, we have found no authority indicating an applicant may recover from the agent for fraud in making material misrepresentations for the purpose of inducing an insurer to provide coverage which the applicant could not otherwise obtain. The one injured in such a case would be an insurer who accepted the risk because it was unaware of certain material facts. Powell was the beneficiary of such alleged fraud; he had no cause to complain when it failed, unless he had shown it prevented him from seeking other coverage which he actually could have obtained. In reality, Powell is complaining only that an alleged false representation which would have benefitted him if it had succeeded somehow “injured” him by having failed. This “injury” is entirely illusory. It is the nature of illusion that it deceives, either by prestidigitation or by crude appearance; by creating the illusion that he had been injured, Powell’s case has deceived many. One of the elements that must be present and proven in fraud is damages. Appellee has shown no damages as hereto set forth in this opinion.

Powell was not entitled to rely upon false representations made to the insurer, for that would be to suborn fraud and encourage, collusion. See German American Mut. Life Assn. v. Farley, 102 Ga. 720, 738 (29 SE 615). This is not a case for even nominal damages to Powell, for the alleged fraud of the agent was against the insurer. Powell cannot recover damages based upon an alleged false statement which was entirely to his benefit and which, when it failed, caused him no harm.

2. Even if Powell could have a cause of action for fraud against the agent, he cannot recover under the evidence in the case.

In the first trial he swore he signed the application in blank. See Powell, supra. His testimony in this trial is that the agent asked him some questions about his health history but never asked him the questions about back injury; he signed the document, but he did not know what he signed. There is no evidence of a fiduciary relationship between Powell and the agent. The mere fact that Powell “trusted” the agent does not make the agent his fiduciary. Thomas v. Eason, 208 Ga. 822 (69 SE2d 729). “ ‘The mere fact that one reposes trust and confidence in another does not create a confidential relationship. “In the majority of business dealings, opposite parties have trust and confidence in each other’s integrity, but there is no confidential relationship by this alone.” Dover v. Burns, 186 Ga. 19, 26 (196 SE 785) (1938).’ Lewis v. Alderman, 117 Ga. App. 855 (1) (162 SE2d 440) (1968).” Kienel v. Lanier, 190 Ga. App. 201, 203 (378 SE2d 359). There is no evidence the agent served as a “broker” for Powell so as to make him Powell’s agent. Wright Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268, 269 (210 SE2d 801). No fiduciary relationship existed to excuse Powell from exercising due diligence in signing this statement: “I declare that all of the above statements and answers are complete and true to the best of my knowledge and belief.”

3. Moreover, the terms of this statement require Powell himself to declare to the best of his knowledge and belief. The statement is formulated to prevent an applicant from asserting that he relied upon someone else, and to ensure that the declaration of truth is “ ‘not the act of one whose insertion of [material misrepresentations] would be binding upon the company. . . .’ ” (Emphasis supplied.) Prudential Ins. Co. v. Perry, 121 Ga. App. 618, 628 (174 SE2d 570). If Powell signed it in blank as he swore at the first trial, he could not have signed it truthfully, since it provides: “I declare that all of the above statements and answers are complete and true to the best of my knowledge and belief.” And while maintaining, as he did, that the paper was “folded or rolled” to conceal questions 18-23 and that the agent never asked him those questions, he could not, as he did, suggest that the answers were “changed” after he answered them, because he said he never answered them and never saw them.

Powell gave no excuse as to why he could not have detected that the application had been “folded or rolled” to conceal material questions as he surmised at trial. He did not contend he was prevented from unrolling or unfolding it. He does not suggest he could not have seen by simple observation, as he did at trial, that the paper was folded or rolled. The terms of the statement required him to examine all the questions and answers before he signed it, and there is no evidence he made any effort to do so. “Nothing appears as to why he could not have taken all the time he wished to take in reading it, or that he was in any way prevented from doing so.” Prudential Ins. Co. v. Perry, supra at 623. Recovery on a policy has been allowed where the agent practiced some artifice or device to prevent the applicant’s discovery of the agent’s false answers (Stillson, supra; Tallent v. Safeco Ins. Co. of America, 99 Ga. App. 11 (107 SE2d 331)), but the evidence here is not that Powell was prevented from discovering the false answers or from discovering a contrivance which he now suggests concealed the answers from his view. In McCommons v. Greene County, 53 Ga. App. 171, 173-174 (184 SE 897), we held: “The mere fact that the plaintiff signed the deed in a room where the shades were not up and the blinds were not open, where it does not appear that she could not have raised the shades or opened the blinds and let in sufficient light by which she could read the deed, is insufficient as an excuse for her not reading the deed and becoming acquainted with its contents before she signed it.”

“Being able to read and write ... he could have readily determined, when he signed the application, that it called for [certain] information. . . . Its preparation was on his own responsibility, and was not the act of one whose insertion of false and material matter or wilful concealment of material facts would be binding upon the company. ...” (Emphasis supplied.) Prudential Ins. Co. v. Perry, supra at 628.

4. The trial court committed reversible error in this trial by giving the jury instructions which permitted the jury to infer a fiduciary relationship existed between Powell and the agent. There was no evidence to support such an inference. See Division 2, supra.

Moreover, the charge was error also for the reason that even a fiduciary relationship would not excuse Powell from exercising ordinary diligence in reading and signing this particular statement which by its terms required him to declare personally according to his own knowledge and belief, and there was no evidence he was prevented from doing so or from discovering any alleged contrivance. See Division 3, supra.

We note the trial court also erred in refusing to give the charge on impeachment, since it was authorized by the evidence.

5. There is an independent controlling reason Powell cannot recover for fraud.

Powell’s own evidence shows that he misrepresented the material facts to the agent. Question 22 asked the name of Powell’s physician; “Dr. Jennins” is written in by hand. When asked at trial how the agent could have gotten this information if he did not ask questions 18-23, Powell said the agent asked “had I had any previous medical impairment, and I told him Dr. Jennins had operated on me in 1981.” (Emphasis supplied.)

This is a conscious suppression by Powell from the agent of the material fact that he consulted Dr. Bickerstaff for a disabling medical impairment (back injury) in 1978 and 1980, and in June 1982, when Dr. Bickerstaff certified he was permanently disabled. Even where an insured made false representations at the suggestion of the agent, recovery on the policy has been denied on grounds the insured’s own act “manifests a conscious suppression of information which was sought by the company, even though he acted on the agent’s suggestion, and which concealment . . . must be held as a matter of law material to the risk.” Mutual Benefit Health &c. Assoc, v. Marsh, 62 Ga. App. 425, 431 (8 SE2d 117); Prudential Ins. Co. v. Perry, supra at 628; see esp. National Life &c. Co. v. Preston, 68 Ga. App. 614, 615 (23 SE2d 526). Powell’s “conscious suppression” of material facts prevents him from claiming that the agent’s misrepresentations alone caused the insurer to refuse coverage. And, Powell can hardly accuse the agent of fraud when, for all that appears, it was Powell who deceived the agent in the first place.

We have construed all the evidence in favor of the verdict, yet the evidence clearly demands a verdict for appellant. Accordingly, the trial court erred in failing to grant judgment n.o.v. to appellant. See OCGA § 9-11-50 (b).

Decided February 18, 1991.

Dickey, Whelchel, Brown & Readdick, J. Thomas Whelchel, for appellant.

Dennis J. Strickland, Sr., for appellee.

Judgment reversed.

Banke, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A90A1881.
    WEBB v. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY.
    (402 SE2d 352)
   Sognier, Chief Judge.

Zella Webb brought suit in January 1986 against Patricia Corbin seeking to recover $3,793.84 in property damage incurred in an automobile accident. On July 16, 1986 Webb executed a subrogation assignment and release in favor of her insurer, State Automobile Mutual Insurance Company (SAMIC). SAMIC thereafter settled with Corbin and her insurer, but Webb refused to enter into the settlement agreement, contending she was entitled to pursue a claim against Corbin for $200 (her deductible under the policy), which amount she claimed had not been included in the subrogation agreement she and SAMIC had executed. Nine months after execution of the subrogation agreement, SAMIC moved both to intervene in Webb’s suit against Corbin in order to recover from Corbin the amount it had paid to Webb and to enforce the settlement agreement as to Webb. It was not until nearly four months after SAMIC moved to intervene that Webb amended her complaint against Corbin to seek recovery' of only $200. In Webb v. State Automobile Mut. Ins. Co., 187 Ga. App. 425 (370 SE2d 492) (1988), in a 5-4 decision this court distinguished the Supreme Court’s opinion in Lindsey v. Samoluk, 236 Ga. 171 (223 SE2d 147) (1976) to hold that the subrogation assignment and release executed by Webb and SAMIC did not apply to the deductible, thereby authorizing Webb to proceed with her suit against Corbin to recover $200. Thereafter, Webb amended her complaint to add a cross claim against SAMIC for 1.25 million dollars in damages arising out of the dispute over the $200 deductible. The trial court granted SAMIC’s motion to dismiss the cross claim, and the main claim having been resolved below, Webb appeals from the dismissal.

As the trial court’s order on appellee’s motion references the briefs and arguments of the parties, appellee’s motion relies upon agreements executed by the parties attached as exhibits to the pleadings, and it appears in the record that matters other than the cross claim itself were presented to the trial court for consideration, appellee’s motion to dismiss was converted into a motion for summary judgment pursuant to OCGA § 9-11-12 (b) and will be treated accordingly. See generally Blasingame v. Blasingame, 249 Ga. 791, 792 (294 SE2d 519) (1982).

We find no merit in appellant’s arguments that her cross claim alleged anything other than the tort of abusive litigation. An examination of her cross claim reveals that all of her allegations are based on her objections to the legal actions appellee has taken in intervening in appellant’s suit against Corbin, in moving the trial court to impose on appellant the settlement agreement appellee had negotiated with Corbin’s insurer, and in challenging appellant’s interpretation of the subrogation agreement as to the viability of her claim for the $200 deductible. We cannot agree with appellant that her allegations regarding verbal threats or coercive behavior by appellee or its institution of legal proceedings (outside of a claim for abusive litigation) alone can give rise to a cause of action under the circumstances presented here. See Kornegay v. Mundy, 190 Ga. App. 433, 434-435 (1) (379 SE2d 14) (1989); Georgia Power Co. v. Johnson, 155 Ga. App. 862, 863 (2) (274 SE2d 17) (1980).

In order for appellant to state a claim for abusive litigation, it must appear that appellee has asserted “a claim, defense, or other position with respect to which there exists such a complete absence of any justiciable issue of law or fact that it reasonably could not be believed that a court would accept the asserted claim, defense, or other position; or [that appellee’s motions] lack[ed] substantial justification, or [were] interposed for delay or harassment.” Yost v. Torok, 256 Ga. 92, 96 (13) (344 SE2d 414) (1986). The record supports appellee’s contention that at the time it initiated legal action, it had two valid reasons for so doing: (1) the language in the subrogation agreement and the opinion in Lindsey, supra, supported its claim that appellant had assigned her entire claim to appellee; and (2) the language in appellant’s complaint sought damages from Corbin for the full amount of property damage appellant had suffered, even though more than nine months had elapsed since she had executed the subrogation agreement assigning all but $200 worth of that claim to appellee. While appellant eventually did amend her complaint against Corbin, it took a decision of this court to determine that the subrogation agreement was not controlled by Lindsey, supra, a decision to which four judges of this court dissented. See Webb, supra at 426. It thus appears that the language of the subrogation agreement was subject to two valid interpretations, and accordingly appellee’s legal actions did not lack substantial justification so as to support appellant’s abusive litigation claim. See generally Bulldog Trucking v. Adams, 259 Ga. 382, 384 (380 SE2d 702) (1989). Furthermore, the trial court was entitled to rely on its original ruling in favor of appellee on the merits of appellant’s claim regarding the deductible as establishing “substantial justification” for appellee’s actions. See Colquitt v. Network Rental, 195 Ga. App. 244, 246 (2) (a) (393 SE2d 28) (1990).

Decided February 18, 1991.

Donald B. Walker, for appellant.

Edward M. Harris & Associates, Edward M. Harris, Jr., Vicki M. Knott, for appellee.

Where the issue of abusive litigation can be determined as a matter of law, summary judgment is an appropriate remedy. Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 796 (359 SE2d 920) (1987). In view of the fact that appellee’s intervenor action did not suffer from such a complete absence of justiciable issues of law and fact that no court would accept it, see generally Colquitt, supra, we find no error in the trial court’s ruling in appellee’s favor on appellant’s cross claim. Id.

Judgment affirmed.

McMurray, P. J., and Carley, J., concur.


text:
    A90A2024.
    SCOTT v. PURSER TRUCK SALES, INC. et al.
    (402 SE2d 354)
   Sognier, Chief Judge.

Joe Scott brought suit against Purser Truck Sales, Inc. alleging his automobile was negligently destroyed while in Purser Truck’s possession and control. Purser Truck answered, denying that the car had been in its possession or control when damaged, and counterclaimed to recover the balance due it as seller of the car under the conditional sales contract and security agreement executed by the parties. Purser Truck then brought a third party complaint against Lonz Radford, alleging that the car had been in the possession and control of Rad-ford, an independent contractor, for purposes of repair when it was damaged, and seeking to hold Radford liable for any sums Scott might recover against Purser Truck. After a bench trial, which was not reported and for which no transcript is present in the record, see OCGA § 5-6-41, the Civil Court of Bibb County found against Scott on his claim, thereby assessing no damages against Radford, and found in favor of Purser Truck on its counterclaim. Scott appeals. See Ga. L. 1955, pp. 2552, 2565, § 26.

1. Appellant contends the trial court erred by finding in favor of appellee because appellee, as bailee, failed to prove it exercised the proper duty of care to protect appellant’s car. Appellant, as the party asserting error, has the burden of affirmatively showing such error by the record. See Taylor v. Colwell Mtg. Corp., 187 Ga. App. 397, 398 (370 SE2d 520) (1988). Appellant argues that the findings contained in the trial court’s judgment support his argument. In its order, the trial court specifically found that appellant “enlisted the assistance” of appellee in making repairs to the car, that appellee “obtained the services” of Radford “for the purposes of making said repairs,” and that the car was in Radford’s possession when it was destroyed. The trial court then found that “[tjhere was no evidence submitted at trial or in supporting documents that demonstrated any negligence on the part of [appellee]” in regard to the destruction of the car. Subsequently, the order sets forth that the trial court “specifically finds that [appellant] did not carry [his] burden of proof in presenting any evidence of negligence or failure to use ordinary care and diligence by [appellee] in maintaining the property that was given to [it].”

We reverse. OCGA § 9-11-52 (a), which is applicable to the trial court here, see Ga. L. 1955, pp. 2552, 2559, §§ 16, 17, provides that findings of trial courts in nonjury trials “shall not be set aside unless clearly erroneous.” See generally Commonwealth Fin. Corp. v. Sherrill, 197 Ga. App. 403, 404-405 (1) (398 SE2d 438) (1990). This principle does not apply, however, where it appears that the trial court’s findings and judgment are based on an error of law. See generally Kingston Dev. Co. v. Kenerly, 132 Ga. App. 346, 349 (1) (208 SE2d 118) (1974). We acknowledge initially that the trial court’s findings arguably could be construed as establishing that appellee, although having “obtained the services” of Radford, was not in possession of appellant’s car at the time of its destruction for the purposes of a bailment. See Davidson v. Ramsby, 133 Ga. App. 128, 131 (5) (210 SE2d 245) (1974) (“[t]o create a bailment, express or implied, there must be an actual or constructive delivery of the goods with actual or constructive possession in the bailee, exclusive and independent of the bailor and all other persons. [Cits.]”). However, we cannot here apply the “right for any reason” rule to affirm the judgment in favor of appellee on the basis that no bailment existed, because despite the ambiguity of the trial court’s findings on the issue of possession of the bailed item, the language employed by the trial court as a whole establishes that its judgment was based on the existence of a bailment between appellant and appellee, and we are thus unable to construe the facts otherwise.

Given the existence of a bailment, we agree with appellant that the language used by the trial court in its order manifests an incorrect application of the law of bailment. Because a bailee is bound to use ordinary care and diligence to protect the thing bailed, see OCGA § 44-12-43, a presumption of negligence arises where possession is shown in the bailee at the time of damage to the property. See OCGA § 44-12-44; United States Security Whse. v. Brooks, 115 Ga. App. 834 (3) (156 SE2d 217) (1967). The burden then is on the bailee to prove that the injury to the property was not occasioned by negligence on the bailee’s part. See Jet Air v. Epps Air Svc., 194 Ga. App. 829, 830 (1) (392 SE2d 245) (1990). In order to rebut this evidentiary presumption, the bailee must negate every inference of negligence on its part, as the presumption in itself is sufficient to support a verdict in favor of the bailor, Camp v. T. E. Cline, Inc., 141 Ga. App. 328, 329 (1) (233 SE2d 280) (1977); Red-Cross Laundry v. Tuten, 31 Ga. App. 689 (2) (121 SE 865) (1924), and it is only after the bailee has met its burden of proof by showing it exercised the required standard of diligence that the burden of going forward with the evidence shifts back to the bailor, who then has the burden of producing evidence to show negligence on the part of the bailee. See Rhodes v. Duarte, 142 Ga. App. 885 (237 SE2d 212) (1977).

Decided February 18, 1991.

Lonzy F. Edwards, for appellant.

Sarah E. Stevenson, for appellees.

Lonz Radford, pro se.

Applying these principles to the case sub judice, the burden was not on appellant to adduce any evidence to demonstrate appellee’s negligence, but on appellee to rebut the presumption that such negligence was the cause of the destruction of appellant’s car. The trial court’s order fails to reflect that appellee carried its burden of proving that it exercised the required standard of diligence. Rather, it is apparent that the trial court applied incorrect legal standards when it found that “no evidence [was] submitted . . . that demonstrated any negligence” on appellee’s part and that appellant “did not carry its burden of proof in presenting any evidence of negligence or failure to use ordinary care and diligence” on appellee’s part. The incorrect shifting of the burden of proof from appellee, the bailee, to appellant, the bailor, renders the trial court’s application of the relevant law clearly erroneous under OCGA § 9-11-52 (a), and therefore mandates reversal of the judgment.

2. Our holding in Division 1 renders it unnecessary for us to address appellant’s final enumeration.

Judgment reversed.

McMurray, P. J., and Carley, J., concur.


author: Beasley, Judge.

text:
    A90A2297.
    CARROLL v. HARRY NORMAN, INC.
    (402 SE2d 357)
   Beasley, Judge.

Defendant Carroll appeals the grant of summary judgment for plaintiff Harry Norman, Inc., on its suit for recovery of a real estate sales commission.

Carroll as purchaser and the Mathes as sellers contracted for the sale of residential property. Harry Norman, Inc., was the listing and selling broker and under the contract was to be paid a seven percent commission on a sales price of $288,000. The contract was contingent on purchaser’s ability to obtain a fixed rate mortgage loan, “with an interest rate of not more than 10.5% per annum on the unpaid principal balance.” Ability to obtain meant “that purchaser is qualified to receive the loan described herein based upon lender’s customary and standard underwriting criteria.” The agreement also provided that “purchaser, at its option without voiding this agreement with seller, may also apply for a loan with different terms and conditions and close the transaction” [under certain provisos]. “Notwithstanding the above option, Purchaser shall be obligated to close this transaction if Purchaser qualifies for a loan with terms described in Paragraph 2 B.” That was the fixed rate mortgage loan. Purchaser disclaimed any reliance on sellers or their agent in choosing a loan or lender and accepted responsibility for the choice of lender, type of loan and loan program.

December 9, 1988 was the date of closing but the contract provided that “purchaser or seller may, at his option, by written notice to the other party, extend this contract closing date until midnight on the third business day following loan approval, but in no event for a period of time longer than seven (7) calendar days from the initial closing date.” When no loan had been approved by December 9, purchaser extended the closing date until December 14 at the urging of one of Harry Norman’s agents. Apparently a loan was approved on December 13 and the purchaser was notified on December 14, but she refused to close on December 16 although sellers extended the closing to that date. The loan which was approved was an adjustable rate mortgage with an initial rate of 9.875 percent but with a 5 percent cap on each change date and a maximum rate of 14.875 percent.

Harry Norman contended on motion for summary judgment that having obtained a loan, purchaser was obligated to close the sale and that either party was entitled to obtain an extension of the contract for the specified time. The trial court agreed, holding “the record simply does not show an issue of fact as to whether defendant was approved for an adjustable rate loan rather than a fixed rate as required by the . . . contract.” It further stated as undisputed that either party could extend the term of the contract not to exceed the seven-day period and concluded that purchaser had breached the contract by failing to close so that Harry Norman was entitled to its commission.

1. Purchaser contends that she was not required by the agreement to close the sale because the loan which was approved was not a fixed rate loan.

Under the contract, which controls, purchaser was only required to close if she was able to obtain a fixed rate loan. The proviso that she might apply for any type of loan she wished gave her the option in that regard but did not require her to close if she was approved. The fact that she was approved for a loan which was an option available to her under the terms of the contract did not impose upon her the requirement that would have arisen if she had been approved for a fixed rate loan. .Because the option was for her benefit, Prestige Realty Co. v. CM & W Constr. Co., 177 Ga. App. 843, 844 (341 SE2d 321) (1986), choosing it or being approved for it instead of for the fixed rate applied for did not compel her to close the sale.

“The broker’s commissions are earned when ... he finds a purchaser who is ready, able, and willing to buy and who actually offers to buy on the terms stipulated by the owner.” OCGA § 10-6-32; Prestige Realty Co., supra at 843. In a suit for commissions the burden of showing all the requirements is on the broker. Phinizy v. Bush, 129 Ga. 479 (2) (59 SE 259) (1907). The sale need not actually occur if the parties entered into a binding and enforceable agreement. Davis v. Holbrook, 75 Ga. App. 417 (43 SE2d 791) (1947).

An agreement such as the instant one impliedly obligates the purchaser to make a diligent effort to bring about the desired financing contingency. Brack v. Brownlee, 246 Ga. 818 (273 SE2d 390) (1980). Each promisor must “use his best efforts to bring about the happening of the condition to his promise.” Jackson Elec. Membership Corp. v. Ga. Power Co., 257 Ga. 772, 774 (1) (364 SE2d 556) (1988). This implied duty must be exercised in good faith. Fourteen West Realty v. Screws, 147 Ga. App. 362 (248 SE2d 722) (1978).

The crucial issue is whether purchaser qualified for a fixed rate loan and made a reasonable effort to obtain one. This is what was demanded of her by the contract’s unambiguous wording. Aside from the purchaser’s testimony on deposition that she applied for a fixed rate loan and the evidence that she was approved for an adjustable rate loan, the record is silent on this question. There is nothing to show that she did not diligently pursue the application for a fixed rate loan or that she chose the option and agreed to close with an adjustable rate loan. The application in the record, from which the approved loan apparently ensued, does not describe the type of loan; it shows only the rate of 9.875 percent, the amount and period of the loan, and the monthly payments. The fact that purchaser received a loan approval but not the one under which she would have been required to close the sale does not authorize the grant of summary judgment. Griffith v. FDIC, 242 Ga. 367, 369 (249 SE2d 54) (1978); Nalley v. Harris, 176 Ga. App. 553, 555 (2) (336 SE2d 822) (1985).

Decided February 18, 1991.

Michael N. Mantegna, for appellant.

McCalla, Raymer, Padrick, Cobb & Nichols, Carol V. Clark, R. Teresa Perrotta, for appellee.

Harry Norman did not carry the burden of demonstrating that purchaser failed to make a reasonable attempt to obtain the loan she was obliged to seek under the contractual terms, or that she qualified for such, or that she agreed to close with the optional loan. The evidence does not require a finding thát purchaser did not act diligently and in good faith in seeking to obtain a fixed loan. Plaintiff was not entitled to summary judgment on this issue. Smithloff v. Benson, 173 Ga. App. 870, 873 (328 SE2d 759) (1985); Koets, Inc. v. Benueniste, 169 Ga. App. 352, 354 (2) (312 SE2d 846) (1983) (affirmed Benueniste v. Koets, Inc., 252 Ga. 520 (314 SE2d 912) (1984)); Nalley, supra at 556 (2).

2. Her second contention, that the contract closing date could be extended by either the sellers or the purchaser but not by both, is not meritorious. Either party could extend up to the expiration of the seven-day period. Purchaser’s extension for part of the period did not deprive seller of the right to extend for the balance.

Judgment reversed.

Pope and Andrews, JJ., concur.


author: Banke, Presiding Judge.

text:
    A90A1835.
    WILSON v. MALCOLM T. GILLILAND, INC. et al.
    (402 SE2d 291)
   Banke, Presiding Judge.

In 1980, the appellant, Gene L. Wilson, filed an action in equity against Malcolm T. Gilliland and Malcolm T. Gilliland, Inc. (hereafter referred to as “the company”), seeking an accounting to determine the book value of certain stock in the company which Gilliland was obligated to purchase from Wilson pursuant to a buy-sell agreement. At the request of the parties, Hayes Clement of the accounting firm Arthur Andersen & Co. was appointed as a statutory auditor to conduct an audit of the company to determine the book value of the stock. Employing the resources of Arthur Andersen & Co., as he was authorized and directed to do by the order appointing him, Clement completed the audit and submitted a report some two-and-a-half years later in which he concluded that the book value of the stock at the time the appellant had exercised his rights under the buy-sell agreement was zero, with the result that the appellant was not entitled to any monetary recovery under that agreement. The appellant filed exceptions to this report and also amended his complaint to assert an action for damages against Arthur Andersen & Co., Mr. Gilliland, and Gilbert D. Bennett (the in-house accountant for the company), based on allegations that they had fraudulently conspired to procure the issuance of a false report by the auditor, thereby tortiously interfering with his rights under the buy-sell agreement. In a previous appeal, the Supreme Court rejected a contention by Arthur Andersen & Co. that it was entitled to judicial immunity against this claim by virtue of the trial court’s order authorizing and directing the auditor to employ its services in performing the audit. Arthur Andersen & Co. v. Wilson, 256 Ga. 849 (353 SE2d 466) (1987).

On March 17, 1989, the trial court issued an order rejecting the appellant’s exceptions to the auditor’s report and adopting the report as the order of the court, thereby judicially establishing that the appellant was not entitled to any recovery under the buy-sell agreement. Subsequently, on September 7, 1989, the trial court issued an order pursuant to OCGA § 9-11-54 making the March 17 order the final judgment of the court on Count I of the complaint. The appellant thereafter applied to the Supreme Court of Georgia for a discretionary appeal from that judgment, but the application was denied.

The present appeal is from an order entered on March 15, 1990, granting summary judgment to the defendant-appellees on the tortious interference claim asserted in Count II of the complaint. In that order, the trial court stated that it had carefully reviewed the entire record in the case before rendering its order of March 17, 1989, and, based on that review, had found “that the evidence in the record supported the auditor’s report; that there was no evidence in the record that the auditor’s report was tainted by, or the product of, any fraud; and that none of [the appellant’s] arguments and contentions had any merit.” The court additionally noted that in a subsequently filed motion seeking to modify and reverse the order of March 17, 1989, the appellant had renewed his contentions that the auditor’s report should be set aside and vacated based on the alleged fraudulent conduct of the defendants; and the court stated that in entering its order of September 7, 1989 (making the March 17 order the final judgment of the court with respect to Count I of the complaint) it had again denied those contentions on the merits. Based on a determination that “the fraudulent conduct alleged to be the basis for [the appellant’s] Count II claim against the defendants [was] the same conduct” which had formed the basis for his attack on the auditor’s report, the court accordingly concluded that “the final judgment of the court on Count I constitutes collateral estoppel as to the . . . claims asserted by [the appellant] in Count II.” In this appeal from that ruling, the appellant asserts 42 separate enumerations of error. Held:

1. We are unable to address separately the merits of each of the appellant’s 42 enumerations of error due to certain deficiencies in his brief. First, he has not complied with Rule 15 (c) (1) of this court, which requires that “[t]he sequence of argument or arguments in the briefs shall follow generally the order of the enumeration of errors, and shall be numbered correspondingly,” an omission he candidly acknowledges with the following statement: “Because their length forbids a separate argument of each of the 42 enumerations, appellant asks the court to consider that all enumerations to which a given argument applies are being dealt with whether specifically cited each time or not. Appellant specifically states that the entire argument is addressed to enumerations of error 1 through 5.” The appellant has similarly disregarded the requirement, imposed by Rule 15 (c) (3) (i), that “[e]ach enumerated error shall be supported in the brief by specific reference to the record or transcript or both,” an omission which this court finds to be particularly significant in light of the fact that the record on appeal, including depositions, is some 5,000 pages long. We additionally note that the appellant has omitted to include in his brief “a succinct and accurate statement of such pleadings, facts, and issues of law as are made in the appeal,” as required by Court of Appeals Rule 15 (a) (1), with the result that we have had to rely on the briefs filed by the appellees and the orders entered by the trial court for an overview of the case. (While the appellant’s brief does contain a three-page “statement of facts” setting forth the procedural history of the case, it does not reveal the nature of the factual allegations underlying the appellant’s claims but rather appears to assume a preexisting familiarity on the part of the court with the events on which the litigation is predicated.)

2. The trial court correctly ruled that a recovery on Count II of the complaint was precluded by the judgment rendered on Count I, even as to the two additional defendants named in Count II who were not named in Count I. “The modern trend in applying the doctrines of res judicata and collateral estoppel is to confine the privity requirement to the party against whom the plea is asserted, so as to permit one who is not a party to the judgment to assert the judgment against a party who is bound by it, and thus to preclude relitigation by that party of issues which have been determined adversely to him in the prior action, even though if the issue had been decided in his favor in the prior action, he would not have been entitled to assert the prior adjudication in a subsequent action against a stranger to the judgment. [Cit.] The central question in determining whether the doctrines of res judicata and collateral estoppel apply is whether the party against whom the plea is raised has had a full opportunity to litigate the issue in question.” Watts v. Lippitt, 171 Ga. App. 578, 579 (320 SE2d 581) (1984). Accord Winters v. Pund, 179 Ga. App. 349, 352-3 (346 SE2d 124) (1986).

Decided January 31, 1991

Rehearing denied February 19, 1991

Smalley & Cogburn, Robert H. Smalley, Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., for appellant.

King & Spalding, Joseph B. Haynes, James N. Gorsline, Beck, Owen & Murray, James R. Fortune, Jr., for appellees.

Gilbert D. Bennett, pro se.

The doctrine of collateral estoppel “bars parties or their privies from relitigating issues which they have actually had adjudicated at a prior time, even though the adjudication may have taken place in a cause of action, or in litigation of a claim, different from the one at bar. [Cit.]” Jebco Ventures v. City of Smyrna, 259 Ga. 599, 601 (385 SE2d 397) (1989). In adopting the auditor’s findings and entering judgment against the appellant on Count I of the complaint, the trial court specifically rejected the appellant’s allegations of fraud; and that judgment became final upon the Supreme Court’s denial of the appellant’s application for a discretionary appeal therefrom. See McLemore v. Stephenson, 181 Ga. App. 828 (354 SE2d 17) (1987). Since a recovery by the appellant on Count II, alleging a fraudulent conspiracy among the appellees to procure the issuance of a false report by the auditor, would be inconsistent with the judgment entered on Count I, the trial court did not err in concluding as a matter of law that the claim asserted in Count II was barred by the doctrine of collateral estoppel.

3. Under the circumstances, the award of summary judgment to the appellees on Count II was similarly mandated by OCGA § 9-11-60 (h), which, while otherwise abolishing the “law of the case” rule, provides that “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.”

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A90A1944, A90A1945.
    CHENEY v. FULTON-DeKALB HOSPITAL AUTHORITY; and vice versa.
    (402 SE2d 294)
   Birdsong, Presiding Judge.

Debra Cheney appeals the grant of summary judgment to the Fulton-DeKalb Hospital Authority (Authority) in this personal injury suit filed after an escape down a stairwell during a purported fire left her with a broken bone in her foot. The Authority cross-appeals on grounds that, in awarding summary judgment to it, the trial court erred in considering a plaintiff’s affidavit filed after the summary judgment hearing to combat issues raised by the Authority at the summary judgment hearing.

The plaintiff was attending a nursing seminar at Grady Hospital in May of 1987, and was staying on the third floor of a nursing student dormitory adjacent to the hospital. In the night, a fire alarm awakened residents to the presence of smoke. Plaintiff and several other residents quickly left their rooms and went down a nearby stairway exit. The plaintiff’s testimony, consistent in her deposition and affidavits, was that the stairwell was dimly lit on the third-floor landing where she entered the stairwell, and got darker as she and the others descended the stairs. By the time they reached the bottom floor landing, there was no light at all, except moonlight or streetlight shining in the first-floor door. Evidence in the case shows it was discovered the next day that there were a total of eight independently operating light bulbs on the three floors of stair landings which were out or were not working. As she reached the first floor landing, the plaintiff “landed on [her] left foot hard, unexpectedly, and [she] couldn’t understand what had happened because . . . [she] couldn’t see when [she] looked down to look at [her] foot.”

The only light she remembered was one dim bulb on the third floor landing, and after that, when she looked down the stairwell, she could see nothing. She consistently maintained that when she stepped off one step onto the landing, she “couldn’t understand it at the time. I must have skipped a stair to have landed so hard. I still don’t know exactly what happened, but that’s what I figure.” She did not know if she tripped or what had happened; “it caught me by surprise because I didn’t have any trouble with my footing at all. And when I landed, you know, on my left foot, it popped. I landed very hard. ...” She surmised that “there must have been another step before the landing that I skipped. . . .” She repeated: “I remember that dimly lit light on the third landing. As I proceeded down the stairs it got darker. I don’t even remember that door that. . . entered into the lobby, and I guess I was using the side rail ... to follow down the stairwell.” She did not fall, but landed very hard on her left foot. There was evidence that plaintiff was not the only person who injured a foot while going down the stairwell that night. Held:

1. The Hospital Authority contended below at the hearing on motion for summary judgment, and contends here, that the plaintiff’s testimony in her deposition and affidavit is “inconsistent” and ought to be construed unfavorably to her, pursuant to Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). However, the Authority is in error on this point. There is nothing contradictory about the plaintiff’s consistent statements that she did not know exactly how the injury occurred except to surmise that in the darkness she had skipped a step before landing hard on her left foot. The plaintiff’s testimony should not be taken out of context or twisted. She consistently maintained that the reason she did not know exactly what had happened was “because it was dark.” (Emphasis supplied.) If she missed a step because it was dark, it stands to reason that she would not have known about the step because it was dark, and therefore cannot now say for a certainty that she missed a step she did not see. .It would be inconsistent or doubtful testimony if, on the other hand, she testified that she missed a step because it was too dark to see, and then looked down and saw it. There was nothing inconsistent or contradictory about what she did testify, which was that because it was dark she did not see the bottom step and she did not know it was there, and for the same reason she cannot say to this day for a certainty that she missed the bottom step. The facts and evidence are such that the jury, based on its own experience and knowledge of ambulatory affairs, may make an inference as to how or why she landed so hard on her left foot in the darkness that she broke a bone in it.

There being no inconsistency in plaintiff’s statements, the trial court’s consideration of her “explanatory” affidavit, which she filed after the hearing to combat this argument raised by defendant for the first time at the hearing on motion for summary judgment, if it was error, was harmless. As to consideration of late affidavits, see Howell Mill/Collier Assoc, v. Gonzales, 186 Ga. App. 909 (368 SE2d 831); compare Brown v. Williams, 259 Ga. 6 (4) (375 SE2d 835).

2. The evidence that eight independently operating light bulbs were found to be “out” shortly after the incident, is sufficient to raise a jury question as to whether the Authority was negligent in failing to make proper inspections. It might be considered unlikely that eight light bulbs would extinguish simultaneously, and that they had therefore extinguished themselves over a period of time sufficient for the Authority maintenance personnel to discover upon reasonable inspection. See Paul v. Sharpe, 181 Ga. App. 443 (352 SE2d 626); Palagano v. Georgian Terrace Hotel Co., 123 Ga. App. 502 (181 SE2d 512). The stairwell was dark; according to the plaintiff’s evidence, eight bulbs were out. This could have been a “static” condition, in the jury’s estimation upon hearing all the evidence. The jury could determine the injury was not caused from the plaintiff’s lack of due care in the fire emergency, since more than one person injured a foot going down the stairwell that night. This is evidence which should be given to the jury; particularly where there is doubt, or in a close case, it is less likely that the issues can be decided as a matter of law. The trial court erred in awarding summary judgment to the Authority in this case.

Decided January 31, 1991

Rehearing denied February 19, 1991.

Daniel B. Simon III, for appellant.

Alston & Bird, Bernard Taylor, Judson Graves, Karen L. Abrahams, for appellee.

Judgment reversed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A2098, A90A2099.
    KING v. BISHOP; and vice versa.
    (402 SE2d 307)
   Birdsong, Presiding Judge.

Appellant/cross-appellee Sandra Wilson King appeals the award of attorney fees to appellee/cross-appellant Winford Kent Bishop who as trustee apparently hired himself as attorney to represent the trust against appellant’s suit in equity to remove him as trustee. Bishop asserts that the award of attorney fees was proper, but by cross-appeal contends in essence that the removal action was invalid for diverse reasons, including that the trust provided for certain vested remaindermen who were not properly joined as parties to the action, that his resignation as trustee was conditional and that the condition has not been met, and that the order and judgment of the court does not express the terms to which he consented.

Pretermitting questions regarding the interpretation of the trust and whether either the main appeal or cross-appeal concerns equitable issues over which the Supreme Court of Georgia must exercise jurisdiction (compare OCGA § 53-13-29; Citizens &c. Bank v. Orkin, 223 Ga. 385, 392 (156 SE2d 86); Ewing v. First Nat. Bank &c., 209 Ga. 932 (76 SE2d 791); Georgia Veneer &c. Co. v. Fla. Nat. Bank, 198 Ga. 591 (32 SE2d 465); Shoup v. Elliott, 192 Ga. 213 (14 SE2d 736) and Harrell v. Parker, 186 Ga. 760 (198 SE 776) with Pickett v. Georgia &c. R. Co., 214 Ga. 263 (104 SE2d 450) and Robinson v. Lindsey, 184 Ga. 684 (192 SE 910); see also Citizens &c. Bank v. Haskins, 254 Ga. 131, 137 (4) (327 SE2d 192) (attorney fees under OCGA § 13-6-11 allowable in equity actions)), is the issue of whether the record adequately reflects that all multiple claims (counterclaims) have been finally adjudicated, as the orders being appealed do not comply on their face with the requirements of OCGA § 9-11-54 (b).

The record reflects that appellee Bishop filed a timely answer to the petition for his removal as trustee and averred certain counterclaims against appellant King. Subsequently, after appellee Bishop made certain statements on the record that may reasonably be interpreted as constituting an offer to resign as trustee without condition, the trial court entered what it apparently considered to be a “consent” order and judgment of the parties. This order and judgment removed Bishop as trustee and pertinently stated that “the only issue remaining for adjudication is the defendant’s request for attorney fees incurred in the defense of this lawsuit.” The court reserved ruling on the issue of attorney fees, and directed the parties to follow a certain procedure for the filing of an itemized application for attorney fees and for any objection thereto. Thereafter the court awarded Bishop $8,000 in attorney fees “for representing himself as the trustee” of the subject trust in this litigation, and directed that no additional expenses are to be awarded for fees incurred in anticipation of the litigation.

The record does not contain any order or judgment expressly disposing of any of Bishop’s counterclaims. Nevertheless, under certain circumstances, it might be inferred from the wording of the existing order and judgment that all of the counterclaims had been disposed of to the satisfaction of the parties, at least by the time the order granting attorney fees was entered. However, such is not the case in this instance. During a subsequent hearing on a motion for reconsideration, Bishop had several other motions pending; one of which was a motion for partial summary judgment as to Count 3 of Bishop’s counterclaim. Although the order granting attorney fees to Bishop also contained a provision declaring that the motion for partial summary judgment was moot, no disposition was taken of this count in this or in any subsequent order attached to the record. Moreover, during the hearing, Bishop in essence asserted that his other pending motions were not rendered moot; one of these motions was a motion for an additional award of attorney fees on two grounds, including that of an award pursuant to OCGA § 9-15-14. Count 4 of Bishop’s counterclaim is a separate count for attorney fees, and Bishop in his prayer for relief requested “attorney fees and expenses of litigation pursuant to OCGA § 9-15-14 (b).” Bishop also averred a counterclaim for abusive litigation which has not been expressly addressed. Thus, this record in its present posture obfuscates the actual rulings of the lower court, and currently reflects that at least some if not all of Bishop’s counterclaims have not been subjected to final disposition.

“ ‘Where there is a case involving multiple parties or multiple claims, a decision adjudicating fewer than all the claims or the rights and liabilities of less than all the parties is not a final judgment. [Cit] In such circumstances, there must be an express determination under OCGA § 9-11-54 (b) or there must be compliance with the requirements of OCGA § 5-6-34 (b).’ ” Cleveland v. Fulton County, 196 Ga. App. 168, 170-171 (396 SE2d 2), citing Spivey v. Rogers, 167 Ga. App. 729 (307 SE2d 677).

Decided February 4, 1991

Rehearings denied February 19, 1991

Schreeder, Wheeler & Flint, David H. Flint, Timothy C. Batten, for appellant.

W. Kent Bishop, pro se.

As the record tends to reflect that certain of the counterclaim issues may still be subject to litigation by and appear to remain under judicial consideration of the lower court, even after the alleged final order and judgment was entered, and as the record does not thereafter contain an affirmative disposition of all these counterclaims, and further as the parties were unable, during appellate argument to stipulate as to the final adjudication by the trial court of all multiple claims, it is therefore necessary in the aid of appellate jurisdiction to remand this case to the trial court with direction that it clarify the scope and nomenclature of the purported consent order. In doing so, the superior court may conduct such hearings and exercise such power, including those powers and principles of equity, as necessary to protect or effectuate its judgment. Ga. Const, of 1983, Art. VI, Sec. I, Par. IV.

Appeals dismissed without prejudice and cases remanded with direction.

Banke, P. J., and Cooper, J., concur.


text:
    A90A2101.
    WOODALL v. HAYT, HAYT & LANDAU.
    (402 SE2d 359)
   Sognier, Chief Judge.

Kenny R. Woodall filed suit against J. F. Shaw Agency, Inc. (“Shaw”), alleging malicious abuse of process (later amended to allege malicious use of process) in a suit on account previously filed against him by Shaw. Shaw filed a third party complaint against the attorneys who represented it in the prior suit, Hayt, Hayt & Landau (“Hayt”), alleging that Hayt had both filed the action and then dismissed it without authority. Hayt’s motion for summary judgment on the main claim was granted by the trial court, and Woodall appeals.

The record reveals that in the prior action, Shaw sought recovery from appellant of an amount allegedly due for an insurance policy premium. Appellant retained an attorney, who indicated to appellee, Shaw’s counsel, that appellant had canceled the insurance and thus did not owe the premium; that the statute of limitation barred Shaw’s claim; and further, that appellant would make a claim for a fire loss he had sustained if the insurance had not been canceled. After this conversation, and before the filing of an answer, that lawsuit was dismissed.

In the present lawsuit, appellee first moved for summary judgment on the third party claim, which was denied. Appellee then moved for summary judgment on the original main claim of malicious abuse of process, see generally Empire Shoe Co. v. Nico Indus., 197 Ga. App. 411 (1) (398 SE2d 440) (1990), and appellant amended its complaint to allege malicious use of process instead. The trial court did not recite its basis for granting appellee’s amended motion for summary judgment on this claim. Nonetheless, regardless of the actual grounds for the trial court’s decision, we agree with both parties to this appeal that analysis of the merits of the claim is proper using the elements of the tort of abusive litigation set forth in Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986) and its progeny. See Vogtle v. Coleman, 259 Ga. 115,118 and n. 6 (376 SE2d 861) (1989). We note that although Yost, supra, mandates that the abusive litigation claim be filed as a compulsory counterclaim, we have refused to apply the compulsory counterclaim requirement of Yost retroactively where, as here, the Yost claimant had no opportunity to file his claim as a counterclaim because the prior, allegedly abusive, litigation ended before the Supreme Court’s decision in Yost. See Ostroff v. Coyner, 187 Ga. App. 109, 113-114 (3) (a) (369 SE2d 298) (1988); Easley v. Clement, 187 Ga. App. 799, 800 (1) (371 SE2d 416) (1988), aff’d on this ground, 259 Ga. 107 (376 SE2d 860) (1989).

Appellant contends that under the standard set forth in Yost for abusive litigation the trial court erred by granting summary judgment to appellee. Although there is no question that the prior action was brought outside the applicable statute of limitation and appellee appears to concede in its brief on appeal that it was not meritorious, appellee argues vigorously that summary judgment in its favor was proper because institution of the action was a mistake which was corrected promptly by voluntary dismissal of the action even before an answer had been filed, and thus was not abusive litigation.

OCGA § 51-7-82 (a), which was enacted as part of Article 5 of Title 51, Chapter 7 (Ga. L. 1989, p. 408), provides that it is a complete defense to any claim for abusive litigation that the suit was voluntarily dismissed “prior to a ruling by the court relative to the civil proceeding, claim, defense, motion, appeal, civil process, or other position, whichever shall first occur.” However, because appellant’s action was filed before April 3, 1989, the effective date of OCGA § 51-7-80 et seq., and OCGA § 51-7-85 provides that the article shall not affect claims filed prior to its effective date, OCGA § 51-7-80 does not control this case. Looking to the applicable case law, we find that in Moore v. Memorial Med. Center, 258 Ga. 696 (373 SE2d 204) (1988) the Supreme Court indicated that a common law Yost claim may be maintained after voluntary dismissal of the underlying lawsuit. See also Roberson v. Central Fidelity Bank, 190 Ga. App. 382 (378 SE2d 698) (1989). Accordingly, summary judgment in appellee’s favor was not proper on this basis. Id.

Decided February 19, 1991.

Greene & Davis, H. Darrell Greene, Paul Shimek III, for appellant.

Garvis L. Sams, Jr., Freeman & Hawkins, T. Ryan Mock, Jr., for appellee.

Appellee also argues that the grant of summary judgment was proper because absent proof of malice, physical injury is required for recovery of damages. While we agree with that abstract statement of the law, we find that in the case sub judice a fact question exists whether appellee’s action in filing suit was wilful or was undertaken with conscious disregard for the consequences so as to support appellant’s claim for damages under OCGA § 51-12-6. Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149 (311 SE2d 818) (1984). See generally Vogtle, supra at 116 (1). Like the Yost claimant in Wheat v. First Union Nat. Bank, 196 Ga. App. 26, 27-28 (2) (395 SE2d 351) (1990), appellant elected to seek damages only under OCGA § 51-12-6, which was expressly approved in Vogtle, supra. However, unlike the movant in Wheat, in the case at bar appellee’s motion for summary judgment was not supported by evidence that its actions forming the basis of the Yost claim were unintentional and not wilful, wanton, or in reckless disregard of consequences. Accordingly, appellee has not pierced those portions of appellant’s amended complaint alleging harassment and malice. The material question remaining for jury determination whether appellee acted with malice to harass appellant, the trial court erroneously granted summary judgment to appellee. See generally Boss v. Food Giant, 193 Ga. App. 434, 436 (388 SE2d 37) (1989).

Judgment reversed.

McMurray, P. J., and Carley, J., concur.


text:
    A90A2264.
    THOMPSON et al. v. QUEEN et al.
    (402 SE2d 361)
   Banke, Presiding Judge.

Acting as “freeholders” of Walton County, Georgia, the appellants filed a petition in superior court pursuant to OCGA § 48-5-296, seeking to remove from office the entire membership of the Walton County Board of Tax Assessors on the following asserted grounds: “(a) Failure to properly and impartially discharge their duties by improperly delegating their statutory duties and by adopting assessments which are not uniformly, equally, and equitably assessed as to the parties of like kind and character as required by OCGA § 48-5-311 (d) (2); (b) failure to assess properties based upon their fair market value as defined in OCGA § 48-5-2; and (c) failure to properly base valuations upon the existing zoning of the property, existing use of same, and deed restrictions impacting uses of the property.” The appellants additionally alleged that “ [t]he ad valorem tax reassessments recently issued for tax year 1989, as established by the Walton County Board of Tax Assessors, are contrary to law and result in discrimination in favor of certain citizens or classes of citizens and against others by virtue of arbitrary and capricious actions taken by the board of tax assessors.”

Following an evidentiary hearing, the superior court denied the petition, concluding that the appellee board members were qualified, that they had acted in a proper, reasonable, and impartial fashion in preparing the 1989 tax digest, and that they “did not discriminate in favor of certain citizens or classes of citizens and against others.” While the court determined that “no written formula or criteria relative to mass re-evaluation procedure was promulgated by the [board],” it further determined that “the board members were able to articulate a procedure that was followed which substantially complies with the law pertaining to mass re-evaluation” and that they had “substantially complied with statutory requirements as to what elements should be considered in mass re-evaluation. . . .” This appeal followed. Held:

OCGA § 48-5-296 provides, in pertinent part, as follows: “Whenever by petition to the judge of the superior court any 100 or more freeholders of the county allege that any member of the county board of tax assessors is disqualified or is not properly and impartially discharging his duties or is discriminating in favor of certain citizens or classes of citizens and against others, . . . the judge shall hear and determine the matter without a jury and shall render such judgment and order as may be right and proper, either dismissing the petition or removing the offending member of the board of tax assessors from office and declaring a vacancy in the office.” It has been held that under the plain wording of the statute, “the breach of a duty imposed by law [does not], ipso facto, mandate[] removal from office,” but that it is “within the court’s discretion to remove the members from office upon a showing of cause.” Allen v. Norris, 151 Ga. App. 305, 306 (259 SE2d 701) (1979).

Decided February 19, 1991.

Lipscomb, Johnson & Ashway, R. Timothy Hamil, for appellants.

Hulsey, Oliver & Mahar, Julius M. Hulsey, for appellees.

The trial court determined in the present case that “there was no set, established formula for classifying land and that the [board] had promulgated no written definitive method to be followed by the appraisers in undertaking county wide mass re-evaluation,” and the court further noted that “there was testimony as to discrimination in appraising specific parcels of land belonging to” three of the appellant landowners. However, the court concluded that the board had “substantially complied with statutory requirements as to what elements should be considered in mass re-evaluation,” that there had been no discrimination “in favor of certain citizens or classes of citizens and against others,” and that “where discrepancies [were] apparent, the property owners [had] a remedy by appealing to the board of tax equalizers.” We hold that the trial court did not abuse its discretion in determining that removal of the board members was not warranted under these circumstances. Accord Allen v. Norris, supra. The cases relied upon by the appellants do not constitute authority for a contrary conclusion in that they involved appeals by individual landowners challenging their property tax assessments rather than actions seeking the removal of the tax assessors from office. See Dotson v. Henry County Bd. of Tax Assessors, 155 Ga. App. 557 (271 SE2d 691) (1980); Sibley v. Cobb County Bd. of Tax Assessors, 171 Ga. App. 65 (318 SE2d 643) (1984).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A90A1898.
    JONES et al. v. THE STATE.
    (402 SE2d 522)
   McMurray, Presiding Judge.

Defendants were convicted of violating the Georgia Controlled Substances Act. They appeal, enumerating error upon the trial court’s denial of their motion to suppress evidence.

Sergeant Donald E. Cowart, a University of Georgia campus police officer, obtained a search warrant to search the premises of a private residence located within 500 yards of the campus. Accompanied by two other University campus police officers and four Athens Police Department officers, Sergeant Cowart searched the premises. Contraband was found and seized, leading to defendants’ arrests.

Decided January 17, 1991

Rehearing denied February 20, 1991

Cook, Noell, Tolley & Aldridge, Edward D. Tolley, for appellants.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

In the recent whole court decision rendered in State v. Harber, 198 Ga. App. 170 (401 SE2d 57) (1990), and followed in the whole court case of Willingham v. State, 198 Ga. App. 178 (401 SE2d 63) (1990), this Court upheld the validity of a warrant executed by University of Georgia campus police more than 500 yards from the campus. A fortiori, a warrant executed by a University campus police officer within 500 yards of the campus must be deemed valid. The trial court did not err in denying defendants’ motions to. suppress evidence.

Judgment affirmed.

Sognier, C. J., and Carley, J., concur.


text:
    A90A2073.
    GUNTER et al. v. JACKSON ELECTRIC MEMBERSHIP CORPORATION et al.
    (402 SE2d 309)
   Sognier, Chief Judge.

Martha Gunter and her husband B. E. Gunter, individually and as administrator of the estate of his son, Mitchell, brought suit against Jackson Electric Membership Corporation (Jackson) and Robert Allen McIntosh,, to recover damages incurred when the motorcycle Mitchell was riding collided with a Jackson boom truck driven by McIntosh and Mitchell was killed. Judgment was entered on a jury verdict returned in favor of Jackson and McIntosh, and the Gunters appeal.

The evidence adduced at trial showed that McIntosh, while in the course of his employment at Jackson, backed the boom truck out of a private driveway onto a two lane highway just north of a curve in the road, completely blocking the southbound lane and partially blocking the northbound lane. There was evidence that overhanging tree limbs blocked both sight of the truck from approaching northbound traffic south of the curve, and the truck driver’s view of approaching northbound traffic. The decedent was traveling north and apparently was unable to stop in time after rounding the curve to avoid colliding with the truck. He was killed instantly.

The trial transcript reveals that immediately after the accident, in the course of his duties, Bobby Gunter (who coincidentally is appellant B. E. Gunter’s second cousin), a Division Superintendent at appellee Jackson, inspected the collision site and spoke with Curtis McMillan, a Jackson employee who was a passenger in the truck. Several days later, Bobby Gunter (hereinafter “Gunter”) interviewed appellee McIntosh about the collision and thereafter, in accordance with company policy, completed a “Supervisor’s Report of Accident Investigation” on a form furnished by Jackson. In paragraph ten of the report, in the space provided for recording “UNSAFE ACT (refers to violation of safe practice rules as failure to wear hard hats)” Gunter marked: “Backing into road in unsafe condition.” In paragraph 11, in the space provided for “WHAT I SUGGEST TO PREVENT A SIMILAR ACCIDENT,” he entered: “Do not back into road with curve nearby. Passenger should get out of truck.” Finally, in paragraph 12, under “COMMENTS,” he wrote: “Should never back into road with curve nearby[,] and if have to passenger should get out of truck and check for traffic around curve.”

Appellees moved in limine to exclude the report from evidence, contending that it contained opinions and conclusions, and that its completion constituted a subsequent remedial action, which is inadmissible. See Brooks v. Cellin Mfg. Co., 251 Ga. 395, 397 (306 SE2d 657) (1983). The trial court reserved ruling until immediately prior to Gunter’s testimony, when it allowed the document to be introduced, but ordered deletion of paragraphs 11 and 12.

1. Appellants contend the trial court erred by failing to admit the entire report into evidence because, regardless of its character as a subsequent remedial measure or the inclusion of hearsay, it was an admission against interest. We do not agree. It is generally presumed that evidence of subsequent remediation is submitted by plaintiffs for the purpose of showing that the defendant recognizes and admits his negligence, Brooks, supra at 396, and it is the prospect of having just such an admission inferred which prompts the exclusion. “The policy supporting our rule prohibiting introduction of evidence of subsequent remedial measures to prove negligence is grounded in the view that parties should be encouraged to take the steps necessary to render dangerous circumstances harmless. [People] should be encouraged to improve, or repair, and not be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrong-doers.” (Citations and punctuation omitted.) Id. We agree with the trial court’s conclusion that admission of the entire document would have subverted the policy behind the rule, and accordingly find no error in the trial court’s initial deletion of paragraphs 11 and 12. See generally Chastain v. Fuqua Indus., 156 Ga. App. 719, 722-723 (3) (275 SE2d 679) (1980).

Decided February 4, 1991

Rehearing denied February 20, 1991

Charles H. Hyatt, John M. Hyatt, Cashin & Davis, Harry L. Cashin, Jr., for appellants.

2. Gunter was first called to testify during appellants’ case in chief, for purposes of cross examination. During that testimony Gunter testified concerning the report without referring in any way to the contents of the deleted paragraphs. When he was called later for direct examination by appellees, however, in an answer unresponsive to the question posed, Gunter elaborated extensively on the entries he had made in those portions of his report which had been excluded from evidence and deleted. Appellants then sought the admission of the previously excluded paragraphs of the report, arguing that the door to showing subsequent remedial measures had been opened by Gunter’s testimony on direct examination. The trial court refused to change its prior evidentiary ruling, and appellants now contend this was error.

We agree. Although evidence of subsequent remedial action generally is not admissible as proof of negligence of the defendant in not having taken the remedial action or precaution before the injury, such evidence may be admitted under the proper circumstances. Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 686-687 (1) (178 SE2d 543) (1970). “This is such a case. The door to [evidence] of remedial measures was opened when counsel [allowed] the witness [to testify] as described above.” Brooks, supra at 397. Accord APAC-Georgia v. Padgett, 193 Ga. App. 706, 709 (388 SE2d 900) (1989). Appellees having gratuitously opened the door to examination of the witness regarding remedial measures taken after the collision, appellants were entitled to have the jury examine the report dealing with those measures.

Exclusion of the report cannot be characterized as harmless error, because although the jury heard something of the substance of paragraphs 11 and 12 in Gunter’s direct testimony, it did not have the full document before it when deliberating and appellants were not able to refer to the missing paragraphs in their closing argument. Accordingly, despite the correctness of the trial court’s initial ruling deleting the two paragraphs, continued application of that ruling after Gunter’s direct testimony served no legitimate purpose, and deprived appellants of an important strategic tool. A new trial is necessary.

Judgment reversed.

McMurray, P. J., and Carley, J., concur.

Murray, Temple & Dinges, William D. Strickland, for appellees.


author: Carley, Judge.

text:
    A89A2016, A89A2017.
    ATLANTA OBSTETRICS & GYNECOLOGY GROUP, P.A. et al. v. ABELSON et al; and vice versa.
    (403 SE2d 253)
    Decided February 20, 1991.

      Alston & Bird, Judson Graves, Bryan A. Vroon, for appellants.

      Keenan Law Firm, Don C. Keenan, David S. Bills, for appellees.

      Jones, Brown & Brennan, Taylor W. Jones, Myles E. Eastwood, amici curiae.
   Carley, Judge.

In Atlanta Obstetrics & Gynecology Group, P.A. v. Abelson, 195 Ga. App. 274 (392 SE2d 916) (1990), we affirmed in part and reversed in part the main appeal and affirmed the cross-appeal. However, on certiorari, the Supreme Court reversed our affirmance on the main appeal of the trial court’s denial of the defendants’ motion to dismiss the plaintiffs’ complaint for failure to state a claim. Atlanta Obstetrics & Gynecology Group, P.A. v. Abelson, 260 Ga. 711 (398 SE2d 557) (1990). Accordingly, the judgment of the Supreme Court is made the judgment of this court and the trial court’s denial of the defendants’ motion to dismiss the plaintiffs’ complaint for failure to state a claim is hereby reversed. As the result of this reversal, the defendants’ remaining enumerations of error in the main appeal need not be considered and the plaintiffs’ cross-appeal has been rendered moot.

Judgment reversed in Case No. A89A2016. Appeal dismissed in Case No. A89A2017.

Sognier, C. J., McMurray, P. J., Banke, P. J., Birdsong, P. J., Pope, Beasley, Cooper and Andrews, JJ., concur.


text:
    A90A1638.
    BAILEY v. THE STATE.
    (402 SE2d 363)
   McMurray, Presiding Judge.

Defendant appeals his conviction of the offenses of burglary and rape. Held:

1. The prosecutor asked a police officer witness if any fingerprints were taken. The officer responded that he did not recall. The prosecutor then asked: “Is it common to lift prints when a defendant is found on the scene like that?” Defendant’s counsel then interposed: “I object to that line of questioning.” The trial court overruled defendant’s objection and the witness was permitted to answer.

Defendant contends the trial court erred in allowing the testimony of the witness in response to the quoted question. While defendant’s sole argument on appeal is that no foundation was laid explaining why the witness would be able to answer the question, such is unrelated to the grounds for objection stated by defense counsel at trial. Since we are limited to those grounds urged to the trial court and defendant’s objection at trial was entirely different, we cannot consider defendant’s argument raised for the first time on appeal. Ridley v. State, 141 Ga. App. 854 (1) (234 SE2d 688).

2. Defendant enumerates as error the trial court’s refusal to give in charge to the jury a requested instruction that where one is so impaired by alcohol, or other drugs, as to render him incapable of forming an intent to do the act charged, he is not criminally responsible. The requested charge was not a correct statement of the law. Only involuntary intoxication sufficient to remove the mental capacity to distinguish between right and wrong in relation to the act may excuse a criminal act. Voluntary intoxication is not an excuse for any criminal act. OCGA § 16-3-4. Defendant’s requested charge failed to address this distinction and “is misleading to the extent that it implies that voluntary intoxication in and of itself may be a defense to a crime, and the trial court did not err in refusing the requested charge.” Gilreath v. State, 247 Ga. 814, 831 (13) (279 SE2d 650). See also Tutton v. State, 179 Ga. App. 462, 463 (4), 464 (346 SE2d 898).

Defendant also contends that the trial court should have given a charge concerning a defense of excessive use of alcohol since this was defendant’s only defense. See in this regard Jackson v. State, 154 Ga. App. 867, 868 (2), 869 (270 SE2d 76). This contention lacks a factual predicate in the record. Not only does the transcript lack any evidence of involuntary intoxication such as would excuse defendant’s criminal acts, additionally, defendant’s testimony presented other defenses. This enumeration of error is without merit.

3. Defendant contends the trial court erred in its instructions as to the form of the verdict in that it did not instruct the jury as to every possible permutation. In other words, even though the trial court instructed separately as to the elements of each offense and that a verdict of guilty or not guilty could be returned as to each charge, defendant complains that the jury was not informed that it could find him guilty of burglary but not guilty of rape. In our view, the trial court’s separate instructions as to the form of the verdict for each offense sufficiently apprised the jury that their determinations as to each offense were to be made independent of the other offense. “It is not necessary in considering the charge to assume a possible adverse construction, but a charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required.” Clark v. State, 153 Ga. App. 829, 831 (266 SE2d 577). This enumeration is without merit.

Decided February 20, 1991.

Charles C. Grile, for appellant.

Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.

4. Finally, defendant enumerates as error his sentencing as a recidivist. During the sentencing phase of the trial the State introduced into evidence two prior felony convictions of defendant. While defendant concedes that the record shows that he was represented by counsel in both of the prior cases, defendant now raises for the first time issues concerning whether his pleas in the prior cases were voluntary and whether the State has satisfied its burden in this regard. “[O]nce the defendant raises the issue of intelligent and voluntary waiver with respect to prior guilty pleas, the burden is on the state to establish a valid waiver.” Pope v. State, 256 Ga. 195, 209 (17) (345 SE2d 831). However, where as in the case sub judice this issue is not raised before the trial court, it may not be raised for the first time on appeal. Mincey v. State, 186 Ga. App. 839, 841 (4) (368 SE2d 796).

Judgment affirmed.

Sognier, C. J., and Carley, J., concur.


text:
    A90A1707.
    TARVER v. THE STATE.
    (402 SE2d 365)
   McMurray, Presiding Judge.

On November 16, 1989, defendant was charged, via accusation, with driving while under the influence of alcohol to an extent which rendered him a less safe driver and unlawfully operating a motor vehicle on the left side of a public road. The offenses allegedly occurred on June 22, 1986. In an “AMENDMENT TO ACCUSATION,” filed November 16, 1989, the State alleged that it hereby “amends the accusation filed herein during the March Term, 1986, by striking all the language therein and replacing the same with the language in the document attached hereto as Exhibit ‘A’ [November 16, 1989, amendment to accusation].”

Defendant filed a subpoena for the production of accusation number 86R-234 and a motion to dismiss and plea in bar. At a hearing on these motions, defense counsel stated that he had “not been provided with a copy of . . . accusation [number 86R-234, but that he had] been provided with a copy of . . . what purports to be an amendment to the accusation which alleges that [defendant] did on the 22nd day of June, 1986 commit the offense of D.U.I. in count one and count two, left of center.” The State’s attorney offered to stipulate that accusation number 86R-234 had been lost and explained, “We don’t know exactly what happened to it. All we can say — because a diligent search was made — is that it has not been located and cannot be located in the Clerk’s Office for some period of time. We can tell from records in the Clerk’s Office that this case was on the calendar in one term of court for arraignment, it was continued to the next term of court and never seen again until it came up pursuant to a letter from the Sheriff’s Department inquiring as to what happened about the case, we got to looking for it, and that’s when we discovered it was no longer in the Clerk’s Office.” The trial court then examined the Upson County Superior Court Clerk’s Criminal Docket Book of 1986 and found a record of accusation number 86R-234, showing that defendant had been charged therein with “DUI” and “Left of Center.” Based on this evidence, the trial court denied defendant’s motion to dismiss and plea in bar and informed defense counsel that he “might as well take this on up and find out what’s going to happen to it.” Held:

Defendant contends that the trial court erred in denying his motion to dismiss and plea in bar, asserting the State’s failure to prove a tolling of the two-year statute of limitation.

“Prosecution for misdemeanors must be commenced within two years after the commission of the crime.” OCGA § 17-3-1 (d). “ ‘[T]he key to determining when the statute of limitation begins to run is to find when the offender or offense became known. (Cits.)’ State v. Brannon, 154 Ga. App. 285, 286-87 (267 SE2d 888) (1980).” Sears v. State, 182 Ga. App. 480 (1) (356 SE2d 72). The burden is on the State to prove that a crime occurred within the applicable statute of limitation. State v. Tuzman, 145 Ga. App. 481, 483 (3) (243 SE2d 675).

In the case sub judice, the November 16, 1989, accusation was filed more than two years after the alleged traffic offenses of June 22, 1986. However, the State contends that the statute of limitation is no bar because the November 16, 1989, accusation was a valid amendment to the timely filed accusation number 86R-234.

“Prior to trial, the prosecuting attorney may amend the accusation to allege or to change the allegations regarding any offense arising out of the same conduct of the defendant which gave rise to any offense alleged or attempted to be alleged in the original accusation.” OCGA § 17-7-71 (f). In the case sub judice, the State’s evidence proved only that defendant was charged in 1986, via accusation number 86R-234, with “DUI” and “Left of Center.” There is no showing that the crimes charged in the November 16, 1989, accusation arose out of the same conduct which gave rise to the offenses alleged in accusation number 86R-234. Consequently, since the November 16, 1989, accusation was not shown to be a valid amendment to accusation number 86R-234, the trial court erred in failing to dismiss the November 16, 1989, accusation.

Decided February 20, 1991.

Virgil L. Brown & Associates, Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Judgment reversed.

Sognier, C. J., and Carley, J., concur.


text:
    A90A1754.
    TALBOT v. THE STATE.
    (402 SE2d 366)
   Birdsong, Presiding Judge.

Marion Talbot was convicted of two counts of armed robbery and sentenced to 20 years on each count, tó serve consecutively. On appeal, he contends inter alia there was a fatal variance in the allegata and the probata, in that the indictments alleged he used a knife in the robbery, but at trial there was no proof of a knife. Held:

1. The indictments charged appellant with taking $3 and $69 in money respectively from Freddie Carson and Pierce Horton, “by intimidation and by use of a knife, the same being an offensive weapon.” The State’s evidence showed that Carson and Horton were each confronted by appellant and relieved of their money as they left a liquor store on Cascade Avenue. Horton left the store first; he testified he saw appellant “with something shiny” in his right hand, and that appellant “had his arm down like this,” and that his arm was “down beside him like,” and defendant was positioned “like this.” Horton testified appellant punched him in the face with his fist but that there was nothing in appellant’s fist. He testified appellant never held out a knife. As to whether appellant told him he had a knife, Horton said, “Naw, he didn’t say what it was. I just seen it.” As to what “it” was, Horton said it was something shiny.

Freddie Carson testified he and Horton went to the liquor store together, and Horton left first. When Carson came out of the store, he saw that appellant “had [Horton] and had something behind his back like this right here. I couldn’t see exactly what it was.” Carson testified appellant had his hand in Horton’s pocket (which Horton denied), and when Carson asked what was going on, appellant told him to “lay it down, too”; Carson threw his money down and ran “because I didn’t know what he had in his hands. . . . [His arm] look like this here, like he had something and they rob and stuff over there so much, and stuff like that.” When asked if he had ever stated he saw a knife being held by appellant, Carson said “No, I didn’t see anything.” As to whether he ever saw a knife, he said, “No, I didn’t.” As to what he thought appellant had in his hand, Carson said, “Well, I was scared. I didn’t know. I went in my pocket and throwed [my money] down and I ran back the other way.” When asked, “Did you think he had anything in his hand,” he said, “I couldn’t take no chances. ... I just let him have it.”

When the police officer arrived, Carson said appellant “had taken Pierce’s money and liquor again.” Neither Carson nor Horton told the officer appellant had a knife or a shiny object. Carson did not say he was robbed, but only that Horton had been robbed of $20. After Carson and Horton pointed appellant out on the street, the officer arrested appellant. Her report charged him with robbery, not armed robbery.

Appellant moved for a directed verdict on the point of no knife having been proved, but the trial court denied it. The jury was charged as to armed robbery, robbery by intimidation, and theft by taking. The charge did not allude to the allegation of the use of a knife, but stated: “I charge you that a person commits armed robbery when with intent to commit theft he takes property of another from the person or the immediate presence of another by use of an offensive weapon or by any replica, article or device having the appearance of such a weapon. . . . [T]he weapon does not have to be visible as far as being in the hand or shown to the victim by the accused. The presence of a weapon during the commission of a robbery may be established by circumstantial evidence. And you may convict the accused for armed robbery even though the weapon itself was neither seen nor accurately described by the victim. Some physical manifestation of the weapon is required, however, or some evidence from which the presence of a weapon may be inferred.” During deliberation the jury asked for a recharge on armed robbery, and the trial court repeated the above.

The general rule that allegations and proof must correspond is based upon the requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at trial; and (2) that he may be protected against another prosecution for the same offense. DePalma v. State, 225 Ga. 465, 469 (169 SE2d 801). If the indictment sets out the offense as done in a particular way, the proof must show it. Fulford v. State, 50 Ga. 591, 593; Walker v. State, 146 Ga. App. 237, 240 (246 SE2d 206); compare Lumpkin v. State, 249 Ga. 834, 836 (295 SE2d 86), distinguishing Walker. In Habersham v. State, 79 Ga. App. 244, 245 (53 SE2d 578), we held there was a fatal variance where the indictment alleged the commission of murder “ ‘with a certain pair of metal knuckles,’ ” and the only evidence was of the use of the bare fist.

Decided February 20, 1991.

Mary E. Erickson, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, William Akins, Carl P. Greenberg, Assistant District Attorneys, for appellee.

The allegation in this indictment that appellant committed robbery with “the use of a knife” was the only charge that would make the offense armed robbery, and was therefore a necessary element to be proved. The charge of armed robbery requires proof of the “use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41 (a). If the indictment had alleged the “use of an offensive weapon,” the evidence that the theft victims saw “something shiny” in appellant’s hand might have sufficed as circumstantial proof of “an offensive weapon, or [a] replica, article or device having the appearance of such weapon.” But this indictment alleged only the use of a knife and the evidence does not prove the use of a knife.

We have held that “ ‘the weapon does not have to be visible as far as being in the hand of or shown to the victim by the accused,’ ” so that use of concealed offensive weapons “or other devices,” may constitute armed robbery (Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336)), but the evidence must at least show that there was an offensive weapon or an article having the appearance of one. The charge and recharge in this case could easily have misled the jury to conclude that no offensive weapon or appearance of an offensive weapon had to be proved; the charge was therefore harmful. See Walker, supra at 244. The conviction for armed robbery is reversed. However, the evidence clearly supports a conviction of the lesser included offense of robbery by intimidation. Holcomb v. State, 230 Ga. 525 (198 SE2d 179). The case is remanded for a new trial or for resentencing for this lesser included offense. See Bundren v. State, 160 Ga. App. 367 (287 SE2d 248), following 247 Ga. 180 (274 SE2d 455).

2. Appellant’s remaining enumerations of error are rendered moot by the holding above, or are without substantial merit.

Judgment reversed and case remanded.

Banke, P. J., and Cooper, J., concur.


author: Pope, Judge.

text:
    A90A1761.
    PALMER v. PALMER et al.
    (402 SE2d 369)
   Pope, Judge.

This appeal arises from a dispute over the location of property or boundary lines between land belonging to plaintiff/appellant and certain of the defendants/appellees.

By warranty deed dated December 30, 1977, plaintiff Raymond C. Palmer deeded to his son defendant/appellee Emmett Mike Palmer a parcel of land located in Montgomery County, Georgia. As recited in the deed, the land consisted of “300 acres as shown by plat made by Leland H. Moss, Surveyor, from survey of November 4, 1977, recorded in Plat Book 4, Page 144, in the Office of the Clerk of the Superior Court of Montgomery County, Georgia, which plat and the record thereof are incorporated herein by reference and made a part hereof.” On May 27, 1987, Mike Palmer conveyed substantially this same tract of land to defendants/appellees A. E. Branch and Brian A. Myers “[s]aid property being more particularly shown on a certain plat of survey prepared by Leland H. Moss, Surveyor, dated May 1, 1987, and recorded in Montgomery County Plat Book 6, Page 7. . . .”

Branch and Myers subsequently retained defendant/appellee Stone Container Corporation to cut timber from the property. Plaintiff, contending that defendants encroached upon and wrongfully removed timber from approximately 40 acres of his adjacent property, filed an action to restrain trespass and to recover damages for the timber he alleged was wrongfully cut. After the case was called for trial and the jury impaneled the parties entered into a Memorandum of Settlement wherein they agreed, and the trial court ordered, “that a panel of surveyors comprised of Charles Zeigler, Leland Moss, Sr., and Joe Davis, . . . establish that certain survey, [and] run and mark the lines thereby established, as shown on that certain plat of survey prepared by Leland H. Moss, Sr., dated 11-4-77 and recorded in Plat Book 4, page 144, Montgomery County Records. ... In the event that the line established by said surveyors or surveyor substantially agrees with the compiled plat prepared by Charles M. Zeigler, surveyor, dated 9-28-88, the cost of this further survey work shall be born by Defendants, pro-rata. Conversely, in the event that the line established by said surveyors . . . substantially agrees with the plat prepared by Joe Davis dated 7-25-89 (4-25-89) the cost of this further survey work shall be paid by Plaintiff. In the event that the further survey establishes a line which does not comport to either of the above mentioned plats (Zeigler or Davis plat), but is found located between said southern boundaries as shown on said plats, the cost shall be paid by all parties pro-rata. In any event a determination shall be made whether timber has been wrongfully removed from lands of Plaintiff, and if so, the value of the timber. ...” The agreement also provided the mechanism for the appointment of an independent surveyor if a majority of the surveyors failed to establish the plat and specified that the “surveyors findings shall be binding upon these parties and the issues attendant in this case.”

A majority of the surveyors subsequently presented to the court a plat of survey which “substantially agrees with the plat of survey, prepared by Joe Davis dated 7-25-89 (4-25-89).” Following an evidentiary hearing (which was not recorded), and pursuant to the Memorandum of Settlement, the trial court issued its “Final Order” finding, inter alia, that the plat presented to the court by a majority of the surveyors “represents the true property conveyed to Emmett Mike Palmer from Raymond C. Palmer, by warranty deed dated December 30, 1977. . . . The court further found “the southernmost property line as shown on the plat ... is the true division line between the properties of Brian A. Myers and A. E. Branch (formerly lands of Emmett Mike Palmer) and property of Raymond C. Palmer, Plaintiff.” Based upon the testimony of Joe Davis, the court also found that defendants did not wrongfully remove timber from plaintiff’s land. The order of the court further provided that “[t]he lines as established by this order shall be binding on all parties, their heirs, successors and assigns. . . . When the above styled case was called for trial, Plaintiff did orally announce that he was dismissing his claim against defendants. . . . Therefore it is hereby ordered that said defendants are hereby dismissed with prejudice.”

1. On appeal plaintiff contends the surveyors did not follow the order of the court in preparing the plat, the plat does not conform to the plat referred to in the settlement agreement and the plat as established by the court increases the amount of acreage conveyed. Conversely, defendants argue the plaintiff is bound by the terms of the memorandum of settlement, wherein the parties agreed to be bound by the findings of a majority of the surveyors.

Parties to a suit involving a dispute over property lines who agree to be bound by the result of a survey will be bound in accordance with their agreement. Whaley v. Ellis, 86 Ga. App. 790 (72 SE2d 653) (1952). “A compromise of a dispute is binding on the parties. The law favors compromises, and a promise made in extinguishment of a doubtful claim is sufficient to support a valid contract. Where parties to litigation have entered into a definite, certain, and unambiguous settlement agreement, which is not denied, the trial court should make the agreement the judgment of the court, thereby terminating the litigation. An agreement to dismiss a case upon the happening of a certain contingency is enforceable.” (Citations omitted.) Skinner v. Smith, 120 Ga. App. 35, 36 (169 SE2d 365) (1969). “An order entered with the consent of counsel is binding on the client in the absence of fraud, accident, mistake or collusion of counsel. (Cit.) ... In the absence of fraud or mistake, a party cannot complain of a judgment, order, or ruling that his own conduct produced or aided in causing. No fraud or mistake being shown, the [plaintiff] cannot complain of the judgment entered by consent and the judgment of the trial court must be affirmed.” (Citations and punctuation omitted.) Attwell v. Lane Co., 182 Ga. App. 813, 814 (2) (357 SE2d 142) (1987). See also Johnson v. Shook, 156 Ga. App. 878 (2) (275 SE2d 815) (1981).

Decided February 20, 1991

D. Duston Tapley, Jr., for appellant.

David B. Pittman, Jon Gary Branan, for appellees.

2. Defendants’ motion for imposition of a penalty pursuant to Court of Appeals Rule 26 (b) is granted and the trial court is hereby directed to enter judgment against the plaintiff in the amount of $200 upon return of the remittitur in this case.

Judgment affirmed. Motion for penalty granted.

Beasley and Andrews, JJ., concur.