text:
    A90A1162, A90A1163.
    CARTER et al. v. ALLSTATE INSURANCE COMPANY; and vice versa.
    (399 SE2d 500)
   Banke, Presiding Judge.

On December 20, 1987, a small fire occurred in the home of Walter and Jean Carter, resulting in substantial smoke damage throughout the house and some minor structural damage to the kitchen and breakfast room. The following day, Mr. Carter reported the fire to Ms. Terry Morris, a small claims adjuster employed by Allstate Insurance Company, which had issued a policy of homeowner’s insurance covering the property. The Carters’ daughter was planning to marry between Christmas and New Year’s Day, and because they were expecting a large number of visitors in connection with the wedding the family was anxious to have the smoke damage cleaned from the house before Christmas. Ms. Morris informed Mr. Carter that Allstate would not be able to send an adjuster to the home to review the loss within that time frame but gave him the name of at least two contractors who would be authorized to perform the necessary clean-up work without the involvement of an adjuster. Later that day, one of these contractors, Billy Howell of H & H Construction Company, spoke with Mrs. Carter and made arrangements with the couple to perform the clean-up work. Mr. Howell was apparently successful in completing this job before Christmas and was paid by Allstate for his services in that regard.

In January of 1988, after discussing the matter with Mr. Carter, Mr. Howell contacted Ms. Morris to ask whether Allstate was planning to send out an adjuster to handle the structural damage portion of the Carters’ claim. Ms. Morris answered this question in the negative and informed Mr. Howell that he would be authorized to commence the repair work forthwith if the Carters wanted him to. Mr. Howell subsequently received authorization from the Carters to proceed; however, he did not actually undertake the work himself but instead subcontracted the job to his son, Ken, who was also in the construction business. At the direction of Allstate, Mr. Howell submitted both his preliminary estimates of the repair costs and his actual bills for the work itself directly to Allstate.

Part of the repair work involved the replacement of the vinyl floor covering in the kitchen and breakfast area of the home. This floor covering had been glued in place, and “chunks” of the backing remained affixed to the floor after it was pulled up. Ken Howell undertook to remove this backing by sanding it. Unfortunately, it was composed at least partially of asbestos, with the result that asbestos dust was released throughout the house.

On February 8, 1988, Mrs. Carter contacted Ms. Morris and told her that she and her husband were dissatisfied with the manner in which the repair work was being performed, in part because of the large amount of dust associated with it. (It appears that mention was made during this conversation of the presence of asbestos in the dust but that neither woman was cognizant at the time of the health threat involved.) Ms. Morris responded to Mrs. Carter’s concerns by telling her that if she and her husband were dissatisfied with the work they should employ another contractor in whom they had confidence to finish it. The Carters did so, retaining Cope Brothers Construction Company to complete the repair work. Allstate subsequently paid Cope Brothers for its services in this regard but did not pay the Howells for their repair work.

After the structural repairs were completed, Mr. Carter became aware of the possibility that the old vinyl floor covering may have contained asbestos and had a sample of it tested. This testing revealed the presence of asbestos in the floor covering but not the amount, if any, released into the air. On March 3, 1988, the Carters had a sample of air from their home analyzed and learned that it contained over five times more asbestos than is normally considered safe. The couple had by this time notified Allstate of their concerns about the asbestos dust and had been advised by Allstate to move out of the residence if they were apprehensive about their safety.

Mr. Carter thereafter consulted an expert in the removal of asbestos contamination, who informed him that much of the interior of the home would have to be stripped and its furnishings, particularly those containing fabric or electrical wiring, destroyed. On March 5, the Carters moved into a trailer, and the decontamination work commenced. Following the completion of this work, Cope Brothers Construction Company returned to the home, repaired the physical damage caused by the decontamination procedures, and installed or caused to be installed replacement carpeting, fixtures, and appliances. The Carters then submitted to Allstate an itemized list of all the expenditures they had incurred in ridding the home of the asbestos contamination.

On October 18, 1988, Allstate filed a declaratory judgment action in the United States District Court for the Northern District of Georgia seeking to determine its rights, duties and obligations in connection with the asbestos contamination claim, naming as defendants the Carters, their daughter, her new husband, and a family friend, all of whom had lived in the house for several weeks following the sanding. On November 7, 1988, these declaratory judgment defendants joined in filing the present action in the Superior Court of Whitfield County against Allstate, the Howells, and the Howells’ respective construction companies, seeking to be compensated for the property loss they had allegedly sustained and to recover damages for the increased risk of cancer to which they had allegedly been exposed as a result of the contamination. The complaint is in four counts. In Count 1, the plaintiffs allege that the contamination was caused by the Howells’ negligence, and they seek to hold Allstate vicariously liable for that negligence under the doctrine of respondeat superior. In Count 2, the Carters seek to recover for the damage to their home on the theory that the defendants breached a “warranty of correct construction and repair,” and in addition they seek to recover policy benefits from Allstate for their personal property losses resulting from the asbestos contamination. Count 3 is a claim for attorney fees and litigation expenses based on allegations of bad faith, stubborn litigiousness and gross negligence; and, finally, Count 4 is a claim by the Carters’ son-in-law for “vindictive damages” for the “injury to his peace, happiness and feelings” he has allegedly suffered due to his awareness of having breathed “the deadly cancer causing” asbestos dust.

Cross-motions for summary judgment were filed in both the state and the federal actions; and on September 12, 1989, the federal district court entered an order denying the motions. While concluding as a matter of law that no master-servant relationship had existed between Allstate and the Howells so as to render Allstate vicariously liable for their alleged negligence, the district court ruled that Allstate might nevertheless be considered liable for the contamination damage on the theory that it had breached “a contractual duty to see that the repairs to the Carter home were done with due care.” In reaching this conclusion, the district court relied on OCGA § 51-2-5 (3), under which an employer may be considered liable for the negligence of an independent contractor “[i]f the wrongful act is the violation of a duty imposed by express contract upon the employer. . . .” The district court determined that if in fact Allstate undertook to repair the structural damage to the home caused by the fire, as opposed to merely paying the Carters for the damage, then in so doing it assumed “a contractual duty to see that the repairs were properly completed, [with the result that] the independent contractor rule would not relieve [it] of vicariously (sic) liability.”

A month after the district court entered its ruling, the superior court ruled on the parties’ cross-motions for summary judgment in the present action. While adopting the statement of facts set forth in the district court’s order and agreeing with the district court’s conclusion that no master-servant relationship had existed between Allstate and the Howells, the superior court took issue with that court’s conclusion “that OCGA § 51-2-5 (3) applies to the facts of this case so as to possibly hold the employer, Allstate, liable for the negligent acts of the independent contractor Howell.” In this regard, the court was persuaded by cases such as Faubion v. Piedmont Engineering &c. Corp., 178 Ga. App. 256 (2) (342 SE2d 718) (1986), and Fields v. B & B Pipeline Co., 147 Ga. App. 875 (250 SE2d 582) (1978), that the contractual duty referred to in § 51-2-5 (3) must be expressly imposed by the contract and that the mere breach by an independent contractor of an implied contractual duty to perform his work in a skillful, diligent and workmanlike manner would not support the imposition of vicarious liability against the employer. The superior court accordingly granted Allstate’s motion for summary judgment with respect to the tort claims asserted in the complaint. However, notwithstanding its conclusion that OCGA § 51-2-5 (3) was inapplicable to the case, the superior court agreed with the district court that Allstate could nevertheless be held liable for the asbestos contamination damage under a breach of contract theory, concluding that if it undertook to repair the original fire damage to the home and then discharged that undertaking in such a manner as to damage the plaintiffs, “then [it] would be liable in damages for breach of contract notwithstanding an independent contractor did the work.” Allstate has appealed from the latter portion of the superior court’s order, while the plaintiffs have cross-appealed from the former. Held:

1. As it is apparent without dispute from the record that Allstate did not retain or exercise any right of control over the time, manner or method of performance of the Howells’ work, we hold that the trial court was correct in its conclusion that Allstate could not be held vicariously liable for the Howells’ alleged negligence under the doctrine of respondeat superior. Accordingly, we affirm the grant of Allstate’s motion for summary judgment with respect to the tort claims asserted in Count 1 of the complaint. Accord Caruso v. Aetna Cas. &c. Co., 181 Ga. App. 829 (354 SE2d 18) (1987). See generally OCGA §§ 51-2-4; 51-2-5 (5).

2. Although there is no basis upon which Allstate could be held vicariously liable to the Carters in tort for the Howells’ alleged negligence, we also agree with the trial court that a fact issue nevertheless remains as to whether, having undertaken to repair the original fire damage to their home, it breached a contractual obligation to perform those repairs (or to see to it that they were performed) in a skillful and workmanlike manner. Allstate was entitled under the terms of the policy either to pay the Carters for the fire damage or to repair the damage itself; and in the event it chose the latter option rather than the former, it necessarily assumed a duty to restore the home to a habitable condition. As the evidence of record in the present case does not conclusively negate the Carters’ contention that it was Allstate rather than they who retained Billy Howell to repair the structural damage caused by the fire, we conclude that a factual dispute exists as to which of these two options Allstate chose to exercise. Compare Owens v. Svc. Fire Ins. Co., 90 Ga. App. 553 (83 SE2d 249) (1954) (holding that a release executed by an insured, acknowledging the correctness of an automobile repair estimate and directing his insurer to pay the amount of estimate, less the deductible, over to the repair company in satisfaction of the insurer’s obligations under the policy, operated to relieve the insurer of any further responsibility in the matter). Accordingly, we hold that the trial court properly denied Allstate’s motion for summary judgment with respect to the breach of warranty claim contained in Count 2 of the complaint.

We reject Allstate’s contention that this court’s decision in Caruso v. Aetna Cas. &c. Co., supra, constitutes authority for a contrary holding. In that case it was apparent without dispute from the record that no contractual relationship had existed between the insurer and the contractor, while in the present case there is at least some basis for an inference that the contractor was retained by the insurer rather than the insured. We consider Allstate’s reliance on such cases as Faubion v. Piedmont Engineering &c. Corp., supra, and Dennis v. Malt, 196 Ga. App. 263 (395 SE2d 894) (1990), to be similarly misplaced. The holding in Faubion was that a general contractor which had been hired by a property owner to repair a fire-damaged warehouse was not liable for personal property damage caused by an independent subcontractor, where “the work which was the subject of the [parties’] contract was completed with no defects. . . .” Id. at 258. In the present case the repair work which was the subject of the alleged contract was not completed without defects. The decision in Dennis v. Malt arose from a suit by a store employee against a general contractor hired by the store to perform certain structural work, seeking to recover for personal injuries he had allegedly sustained due to the negligence of a subcontractor. As there was no contractual relationship whatever between the plaintiff and the defendant in that case, the plaintiff’s claim clearly was predicated solely on tort principles.

3. Allstate contends that it has no liability to the Carters for the loss at issue in this case because the policy expressly excluded coverage for contamination damage. Inasmuch as this issue was not addressed by the trial court, we will not address it in this appeal. We note, however, that the claim for policy benefits set forth in the Carters’ complaint relates only to their personal property losses caused by the asbestos contamination. Their claim against Allstate for the damage to their home is predicated not on the theory that it qualifies as a covered loss under the policy but on the theory that, having undertaken to effect certain repairs to their home for the purpose of discharging an admitted policy obligation arising from the fire, it failed to complete those repairs in a diligent and workmanlike manner.

4. It is apparent from the record that there is a bona fide controversy between the parties as to whether Billy Howell was employed by the Carters or by Allstate. Accordingly, there being no suggestion of any bad faith on the part of Allstate in connection with this matter, we hold that the trial court erred in denying Allstate’s motion for summary judgment with respect to the plaintiffs’ claim for litigation expenses based on bad faith and stubborn litigiousness. Accord Backus Cadillac-Pontiac v. Brown, 185 Ga. App. 746 (1) (365 SE2d 540) (1988); Nestle’ Co. v. J. H. Ewing & Sons, 153 Ga. App. 328 (4) (265 SE2d 61) (1980). See generally OCGA § 13-6-11.

5. There is similarly no evidence that Allstate was itself guilty of any negligence in connection with the work performed on the house, much less the sort of “wilful misconduct, malice, fraud, wantonness, . . . oppression, or . . . conscious indifference to consequences” which is necessary to authorize the imposition of punitive damages. See Gilman Paper Co. v. James, 235 Ga. 348, 351 (219 SE2d 447) (1975); Hub Motor Co. v. Burdakin, 192 Ga. App. 872, 874 (2) (386 SE2d 854) (1989). Accordingly, we hold that Allstate was also entitled to summary judgment with respect to the claim for “vindictive damages.”

Judgment affirmed in part and reversed in part.

Birdsong and Cooper, JJ., concur.

On Motion for Rehearing.

On motion for rehearing, Allstate insists that our holding in the present case cannot be reconciled with Caruso v. Aetna Cas. &c. Co., 181 Ga. App. 829 (354 SE2d 18) (1987). In Caruso, the contractor categorically denied that there had been any contract between it and the insurer, and the only evidence offered by the insured to the contrary consisted of his own testimony that the insurer’s claims adjuster had recommended the contractor to him and that “when [the contractor’s president] contacted him and indicated that [the insurer] had authorized him to repair the roof, he understood that [the insurer] had hired [the contractor] for the job.” Id. at 830. Of course, the insured’s un derstanding in that case that the contractor had been hired by the insurer did not constitute evidence to that effect. Such evidence does, however, exist in the present case, in the form of the contractor’s undisputed testimony that Allstate had instructed him to proceed with the job subject to the Carters’ approval and to submit his repair estimates and bills directly to Allstate rather than to the Carters. While we recognize that the court stated in Caruso that the breach of contract theory of recovery asserted against the insurer by the insured had been “eviscerated by the fact that [the insurer was] not liable for the negligence of the independent contractor,” id. this statement must be considered mere dictum in light of the undisputed evidence that the insurer did not in fact have any contractual relationship with the contractor.

Decided October 30, 1990

Rehearings denied November 27, 1990

Mitchell, Coppedge, Wester, Bisson & Miller, Warren N. Coppedge, Jr., William F. Jourdain, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, E. Alan Miller, for appellee.

Allstate also questions on motion for rehearing how it could “be expected to comply with its policy contract and see to it that the repairs are performed in a skillful and workmanlike manner yet exercise no control over the time, manner and method or (sic) the performance of the work.” It is obviously possible to monitor an independent contractor’s performance without transforming him into an employee. “ ‘[M]erely taking steps to see that the contractor carries out his agreement, by supervision of the intermediate results obtained, or reserving the right of dismissal on grounds of incompetence, is not such interference and assumption of control as will render the employer liable. [Cits.]’ ” Slater v. Canal Wood Corp. of Augusta, 178 Ga. App. 877, 881 (345 SE2d 71) (1986). See also State of Ga. v. Goolsby, 191 Ga. App. 161, 163 (381 SE2d 299) (1989).

Motion for rehearing denied.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A1480.
    ENNIS v. BRADSHAW.
    (399 SE2d 493)
   Cooper, Judge.

Appellant and appellee were involved in an automobile accident on July 15, 1987. On April 4, 1989, appellant filed an action against appellee for negligence in the Superior Court of Bibb County, the county of appellee’s residence at the time of the accident. The sheriff’s return of service reflects that appellee was served personally by the Bibb County deputy sheriff. On May 5, 1989, appellee answered the complaint, raising as defenses insufficiency of service of process, lack of personal jurisdiction, and improper venue. Appellee also alleged in her answer that she was a resident of Houston County and gave her address in that county. On September 11, 1989, appellee filed a motion for summary judgment on the grounds of insufficiency of service, lack of jurisdiction, improper venue, and the statute of limitation. Appellee supported her motion with her personal affidavit, in which she stated that she has resided in Houston County since October 1988 and that she was not personally served with the complaint. Appellant did not respond to appellee’s motion for summary judgment, and on October 18, 1989, the trial court, without ruling on appellee’s motion for summary judgment, transferred the case to the Superior Court of Houston County. On November 20, 1989, appellee was personally served with a copy of the complaint and on December 18, 1989, she answered the complaint, raising as a defense the statute of limitation. On March 12, 1990, the trial court granted appellee’s motion for summary judgment, specifically finding that appellant had not exercised due diligence in perfecting service on appellee after the running of the statute of limitation.

“If an action is filed within the period, of limitation, but not served upon the defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. If reasonable and diligent efforts are not made to insure proper service as quickly as possible, plaintiff is guilty of laches, and in such case, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation. [Cits.]” Bowman v. U. S. Life Ins. Co., 167 Ga. App. 673 (3) (307 SE2d 134) (1983). “ ‘The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.’ [Cit.]” Ingram v. Grose, 180 Ga. App. 647 (350 SE2d 289) (1986).

Our review of the record shows no abuse of discretion. Appellant knew as early as May 5, 1989, over two months before the expiration of the statute of limitation, the address where appellee resided in Houston County yet appellant took no action to have appellee properly served. It further appears that even after appellee raised in her motion for summary judgment that the action was barred by the statute of limitation, appellant took no action until the case was transferred. Inasmuch as there is no evidence in the record showing that appellant exercised due diligence, the trial court correctly granted summary judgment to appellee.

Decided October 24, 1990

Rehearing denied November 27, 1990

John E. James, Kathryn M. Weigand, for appellant.

Chambless, Higdon & Carson, Paul M. Knott, Emitte H. Griggs, for appellee.

Judgment affirmed.

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


text:
    A90A1236.
    DAVIS v. THE STATE.
    (399 SE2d 554)
   Cooper, Judge.

Appellant was convicted of the offense of driving under the influence of alcohol in the Probate Court of Upson County. This conviction was appealed to the Superior Court of Upson County pursuant to OCGA § 40-13-28, and was affirmed. This appeal followed.

1. Appellant first enumerates the general grounds. After reviewing the entire record and transcript before us, including the testimony of the arresting officer and the appellant, in a light most favorable to the verdict, we conclude that there is “ ‘ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that the appellant was guilty of (the offense) charged.’ Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). [Cits.]” Rios v. State, 193 Ga. App. 485 (1) (388 SE2d 527) (1989). We also conclude that the trial court’s determination that venue was proper was supported by evidence in the record. Beard v. State, 193 Ga. App. 877 (1) (389 SE2d 384) (1989).

2. Appellant next enumerates that the probate court did not have jurisdiction to dispose of the case because appellant never waived his right to a jury trial in writing as required by OCGA § 40-13-23 (a). A review of the record reveals that appellant did not sign the jury trial waiver, and consequently the probate court was without authority to dispose of the case. Since the statutory responsibility of the probate court to obtain the written waiver “was not met in this case, the contingency on which the probate court’s subject matter jurisdiction depended did not occur. ‘The judgment of a court having no jurisdiction of the person or subject matter ... is a mere nullity. . . .’ OCGA § 17-9-4.” Snellings v. State, 194 Ga. App. 552, 553 (391 SE2d 36) (1990). See Kendall v. State, 196 Ga. App. 760 (396 SE2d 927) (1990); Rustin v. State, 192 Ga. App. 775 (2) (386 SE2d 535) (1989). Even though there is no indication that the waiver-of-jury-trial issue was raised in the superior court, this is a matter which goes to the subject matter jurisdiction of the probate court and the right to attack the judgment as a nullity is not waived by the failure to attack it before. Barrett v. State, 183 Ga. App. 729 (1) (360 SE2d 400) (1987).

Decided November 27, 1990.

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

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

Judgment reversed.

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


author: Sognier, Judge.

text:
    A90A0958.
    PERIMETER FORD, INC. v. EDWARDS et al.
    (399 SE2d 520)
   Sognier, Judge.

Perimeter Ford, Inc., brought suit in trover against, inter alia, Gary and Colleen Edwards and First National Bank of Atlanta (FNB) to recover possession of a 1988 Ford Escort and its hire. The defendants moved for summary judgment on the grounds that title to the vehicle had passed to the Edwardses either pursuant to OCGA § 11-2-403 (2), (3) or under the provisions governing transfers of motor vehicle titles, and Perimeter Ford filed a cross motion for partial summary judgment. The trial court granted the defendants’ motions and denied Perimeter Ford’s motion, and Perimeter Ford appeals.

In the summer of 1988, appellee Gary Edwards, who was planning to buy a new car, learned from a business acquaintance that United Car & Truck Leasing, Inc. (hereinafter “United”) was in the business of selling cars at a lower markup than charged by franchise dealers. He established contact with Jay Kafka, a United sales and leasing agent, and indicated he wished to purchase a Ford Escort. Kafka contacted Barry Blakely, a fleet sales representative of appellant with whom he often did business, and arranged to obtain the model specified by Edwards. When Kafka arrived at appellant’s place of business on August 2, Blakely was not in, but another of appellant’s employees completed a purchase order and turned over to Kafka the keys, owner’s manual, and the manufacturer’s certificate of origin (“MCO”) for a 1988 Ford Escort, although the MCO was not assigned to United. Kafka then drove the car to United’s place of business, an office in a suburban office complex, and replaced appellant’s dealer tag with a United tag. He then made arrangements with appellee FNB, which often financed United’s sales and leases, to finance the Edwardses’ purchase. Two days later, the Edwardses arrived at United’s office, where they observed the Escort and several other cars with United tags parked in the parking lot. They executed the sales and financing agreements, and Kafka stated he would obtain their title and tag. When they failed to receive these items, the Edwardses authorized FNB to obtain a title and tag for them, which FNB did by obtaining a title bond pursuant to the procedure set forth in OCGA § 40-3-28.

Kafka testified that during his four years of employment with United, United was engaged in the business of selling and leasing cars, with sales comprising 30 percent of its transactions. The record reveals that for at least ten of these transactions, Kafka procured vehicles from appellant on credit, following the same procedure used to obtain the car at issue, and paid appellant with the proceeds from the sale of either the vehicle or the lease. In an affidavit, Blakely confirmed that he regularly obtained vehicles for United pursuant to its specifications, that appellant extended credit to United, and that he approved the sale of the Ford Escort on August 2, 1988, although he was not present when Kafka picked up the car and thus did not sign the purchase order. It is undisputed that United was not registered as a new car dealer under OCGA § 40-2-39 (a) (1) (formerly OCGA § 40-2-36.1 (a) (1)), and that United did not pay appellant for the car at issue.

OCGA § 11-2-403 provides in pertinent part: “(2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business. (3) ‘Entrusting’ includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to. the delivery or acquiescence and regardless of whether the procurement of the entrusting or the possessor’s disposition of the goods have been such as to be larcenous under the criminal law.” In the instant case, if United was a “merchant” as defined in OCGA § 11-2-104 (1) to whom appellant “entrusted” possession of the car within the meaning of OCGA § 11-2-403 (3), then United had the authority to transfer appellant’s ownership interest in the car. Therefore, if the Edwardses were “[b]uyer[s] in ordinary course of business” as defined in OCGA § 11-1-201 (9), they properly were determined to be the owners of the vehicle, see Simson v. Moon, 137 Ga. App. 82 (222 SE2d 873) (1975); Rockwin Corp. v. Kincaid, 124 Ga. App. 570, 572-573 (184 SE2d 509) (1971), and appellant’s suit in trover against appellees must fail because appellant had no title or right to possession as against the Edwardses. See McDaniel v. White, 140 Ga. App. 118, 120 (4) (230 SE2d 500) (1976).

(a) A “merchant” is one “who deals in goods of the kind . . . involved in the transaction.” OCGA § 11-2-104 (1). The undisputed evidence established that at the time of the transaction at issue, United was engaged in the business of selling and leasing cars, and thus was a merchant dealing in vehicles. See Christopher v. McGehee, 124 Ga. App. 310, 311 (183 SE2d 624) (1971).

Appellant maintains the “goods of the kind” in the transaction were new vehicles, and that United cannot be considered to be a merchant dealing in the sale of new cars because it was not registered as a new car dealer under OCGA § 40-2-39 (a) (1). We do not agree. The provisions governing motor vehicle registration and licensing are revenue measures, the violation of which subjects dealers to criminal penalties, see OCGA § 40-2-39 (b), (d); Cambron v. Cogburn, 116 Ga. App. 373, 375 (2) (157 SE2d 534) (1967), but noncompliance therewith does not void a commercial transaction that is otherwise valid under the Commercial Code. Cf. Cambron, supra at 375-376 (2) (automobile dealer’s failure to comply with dealer tag registration statute does not make dealer liable in tort for acts of one whom dealer improperly allowed to drive vehicle with dealer tag). The definition of “merchant” does not require compliance with applicable laws as a prerequisite. Even if United’s failure to register as a new car dealer subjected it to possible liability under OCGA § 40-2-39 (c), (d), its noncompliance with the revenue collection scheme of the motor vehicles laws does not affect the applicability of OCGA § 11-2-403 to the sale of the Ford Escort to the Edwardses. Further, even assuming, without deciding, that United acquired the vehicle from appellant under false pretenses by misrepresenting itself as a licensed new car dealer, OCGA § 11-2-403 (3) provides that an entrustment occurs “regardless of whether the procurement of the entrusting . . . ha[s] been such as to be larcenous under the criminal law.”

(b) We next find that appellant “entrusted” possession of the Ford Escort to United within the meaning of OCGA § 11-2-403 (2), (3) because Blakely, appellant’s undisputed agent, authorized delivery of the car to United’s agent, Kafka, with the knowledge that the vehicle was to be sold or leased in the course of United’s business. Simson, supra at 85; compare Sylvester &c. Co. v. Farmers Bank, 153 Ga. App. 614, 615 (1) (266 SE2d 293) (1980). Appellant’s contentions that it did not entrust the car to United to be sold as a new car and that provisions in the purchase order precluded the subsequent sale to the Edwardses are without merit, as subsection (3) specifically includes any delivery and acquiescence in possession, Simson, supra, and encompasses possession regardless of any condition or limitation expressed between the parties. Christopher, supra at 311. We need not address appellant’s alternative argument that United acted as an agent for the Edwardses, not as an entrustee of appellant, because appellant failed to present that argument to the trial court. McCall v. MARTA, 192 Ga. App. 105 (1) (384 SE2d 215) (1989). Accordingly, since the evidence shows that appellant entrusted the car to United, which was a merchant dealing in such goods, under OCGA § 11-2-403 (2) United was empowered to transfer appellant’s ownership interest in the car to a buyer in ordinary course of business.

Decided November 14, 1990

Rehearing denied November 28, 1990.

Fletcher Thompson, for appellant.

Meals, Kirwan, Goger, Winter & Parks, John J. Goger, Harlan S. Miller III, for appellees.

(c) OCGA § 11-1-201 (9) defines a buyer in ordinary course of business as “a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind.” The record reveals that the Edwardses believed United was in the business of obtaining new cars and selling them without the commission that would be charged by a franchise dealer; that they observed several vehicles with United’s dealer tags in the parking lot at United’s office; that United was indeed “in the business of selling” new cars, whether properly licensed or not; that the documents memorializing the sale did not reveal appellant’s ownership; and that the Edwardses had no knowledge of appellant’s claim or interest until they received a demand letter from appellant’s attorney shortly before suit was filed. See Christopher, supra at 311-312 (1). Contrary to appellant’s assertion, we find no evidence to suggest that the circumstances were so unusual as to put the Edwardses on notice to inquire about any prior interests in the car. See Simson, supra; compare Sylvester, supra at 615 (1) (dealer is charged with stricter standard of conduct and thus has duty to inquire where individual consumer would not).

Consequently, we hold that the trial court was authorized to find that appellant entrusted the car at issue to United, which then sold the vehicle to the Edwardses, who as buyers in the ordinary course of business received all ownership rights of appellant. The Edwardses, having acted in good faith, are entitled to the protection accorded innocent purchasers by OCGA § 11-2-403, see Simson, supra at 85-86, and appellant, having negligently entrusted the car and having failed to perfect a security interest in the vehicle, must bear the loss. Id.

Judgment affirmed.

McMurray, P. J., concurs. Carley, C. J., concurs in Divisions (a) and (c) and in the judgment.


author: McMurray, Presiding Judge. Beasley, Judge, Sognier, Judge,

text:
    A90A1148.
    MABLE v. THE STATE.
    (399 SE2d 509)
   McMurray, Presiding Judge.

Walter Mable was convicted of armed robbery, and he appeals. Held:

1. Appellant’s first enumeration of error raises the sufficiency of the evidence. The cashier at a convenience store was robbed at knife point. An hour and a half later, and again at trial, the cashier identified appellant as the perpetrator of the armed robbery. Another witness, a customer of the store who arrived as the appellant was leaving, recognized appellant as a former resident of this witness’ former neighborhood and pointed him out from a photographic lineup and at trial.

After a.thorough review of the evidence at trial, we find that a rational trier of fact could reasonably have found defendant guilty beyond a reasonable doubt of the offense of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Riley v. State, 196 Ga. App. 148 (395 SE2d 394).

2. Appellant contends the trial court erred in failing to strike testimony by Detective-Sergeant E. C. Mansfield of the Americus Police Department regarding answers appellant gave while in custody to questions Mansfield asked after appellant had invoked his right to counsel. When appellant was apprehended, he had $612 cash in his possession. Mansfield testified that after appellant stated he did not have anything to say and requested a lawyer, the following conversation ensued:

“Mansfield: Is this your money?
Appellant: Yes, that is my money.
Mansfield: How much money is it?
Appellant: It is about two hundred and something dollars, isn’t it?
Mansfield: Where did you get this kind of money from?
Appellant: I have been working.
Mansfield: Can you tell me where you work at?
Appellant: Well, I don’t have anything else to say about it.”

Mansfield testified that other than telling appellant the money totalled $612, there was no further discussion. This testimony was followed by a question posed by the prosecutor regarding the officer’s knowledge of appellant’s ability to earn money prior to the robbery. Appellant’s counsel objected to that question, then moved the court to strike all of Mansfield’s testimony set forth above on the basis that it occurred after appellant invoked his right to counsel and requested the trial court to instruct the jury to disregard that testimony. The trial court overruled the motion.

A primary purpose of a motion to strike evidence is to excise evidence which was admissible when offered but which later appears to be inadmissible. See Annis v. Tomberlin & Shelnutt Assoc., 195 Ga. App. 27, 33 (6), 34 (392 SE2d 717). However, in the light of our general requirement that it is necessary to object to evidence at the time it is actually offered in order to avoid waiver of the objection, a motion to strike evidence may not be used to excise evidence where a movant who had an opportunity to do so fails to object contemporaneously with the admission of the evidence. Guthrie v. Bank South, Douglas, 195 Ga. App. 123, 125 (4), 126 (393 SE2d 60); Clayton County Water Authority v. Harbin, 192 Ga. App. 257, 258 (4) (384 SE2d 453); Woodruff v. Naik, 181 Ga. App. 70, 71 (4) (351 SE2d 233). In the case sub judice, when the testimony which was the subject of appellant’s motion to strike was offered, it had previously been shown to be the product of an uncontroverted violation of appellant’s right to counsel and as such was clearly inadmissible at the time it was offered. Thus, the issue of admissibility of the evidence at issue in the case sub judice was not the proper subject of a motion to strike evidence, but could have been raised only by a timely objection.

Nor can appellant’s motion to strike testimony be viewed as a timely objection. The witness was allowed to relate a lengthy conversation with appellant and the motion was thereafter stated only after the prosecutor moved on to another line of questions. Bennett v. State, 165 Ga. App. 600, 601 (3) (302 SE2d 367).

The State is correct in its contention that the appellant’s failure to object in a timely fashion constituted a waiver of any error. Thompson v. State, 258 Ga. 816, 817 (2) (375 SE2d 219); Nixon v. State, 255 Ga. 656, 658 (2a) (340 SE2d 7).

Judgment affirmed.

Deen, P. J., Banke, P. J., Birdsong and Pope, JJ., concur. Beasley, J., concurs specially. Carley, C. J., Sognier and Cooper, JJ., dissent.

Beasley, Judge,

concurring specially.

I agree. With respect to Division 2, the reason for what appears to be a harsh rule is that it is realistically nearly impossible, as a practical if not a legal matter, to erase evidence from jurors’ minds. Excluding it is the only sure way to avert its influence on the jury’s decision.

Procedural law provides two devices for doing so. The most commonly used device is a timely objection. The second is a motion in limine, an even more cautious device. Allowing a motion to strike after the harm has occurred, when a timely and valid objection could have been made, is not satisfactory nor necessary as a third device.

There was adequate opportunity in this case to raise the objection. Defendant had insisted that the State prove whether or not defendant was advised of his Miranda rights before the officer testified about any conversation they had regarding the money taken from defendant when he was arrested. After that was accomplished, the State asked the detective what happened, and, as the majority states, no objection was made when he related the conversation. In fact, no objection was made to it at any time until after another subject had been introduced and objection by way of the motion to strike the testimony was made.

If this device were permitted in such circumstances, it would require more frequent use of the legal fiction that jurors can and do completely erase from their conscious and subconscious minds evidence, damaging to the movant, which they have already heard or seen.

Sognier, Judge,

dissenting.

I respectfully dissent. The illegal nature of Detective-Sergeant Mansfield’s testimony, as recited in the majority opinion, is not in issue here since even the State has admitted that the introduction of the challenged testimony was error of constitutional dimension. The issue here, rather, is whether appellant’s motion to strike Mansfield’s testimony constituted a proper method of objecting to this illegal evidence. The majority holds that appellant’s motion to strike was not proper, concluding that when a defendant fails to object to challenged evidence at the moment it is introduced, the defendant has waived all objections and cannot subsequently utilize a motion to strike the illegal evidence to preserve those objections.

I disagree with the majority because its conclusion is contrary to the controlling authority of Supreme Court opinions and because the majority neither distinguishes nor overrules opinions of this court, which reach the opposite conclusion. In Blount v. Beall, 95 Ga. 182 (4) (22 SE 52) (1894), the Supreme Court held that “[although testimony may have been admitted without objection, it is the privilege of the party against whom such evidence bears to afterwards move to rule it out for irrelevancy.” In Graham v. Clark, 114 Ga. App. 825, 828-829 (152 SE2d 789) (1966), the appellee made the same argument now endorsed by the majority that the appellant therein had failed to preserve his objection to testimony when he made a motion to strike after the witness had been excused, because the “general rule” is that an objection is waived when the party fails to object during the examination of a witness. Id. at 828. This court rejected that argument and held that “by allowing evidence to be introduced without objection, a party does not lose the right to move to have the evidence excluded at any time before the case goes to the jury. [Cits.] ‘A motion to rule out testimony illegally admitted even without objection is never too late until the cause i[s] finally submitted to the jury. If the testimony is illegal, it should not be considered by the jury, and if it is not to be considered by the jury, it should not be admitted for their consideration.’ [Cit.]” Id. at 828-829. For other cases applying this principle, see McCalman v. State, 121 Ga. 491, 496-497 (5) (49 SE 609) (1904); Patton v. Bank of LaFayette, 124 Ga. 965, 974 (53 SE 664) (1905); Smith v. State, 123 Ga. App. 269, 271 (1) (b) (180 SE2d 556) (1971). For cases acknowledging this principle but distinguishing it on other grounds, see Fluker v. State, 184 Ga. 809 (4) (193 SE 749) (1937); Rushin v. State, 63 Ga. App. 646, 647 (1) (11 SE2d 844) (1940); Harrison v. State, 83 Ga. App. 367, 368 (64 SE2d 83) (1951); Mark Inn v. Dept. of Transp., 174 Ga. App. 420, 421 (1) (330 SE2d 134) (1985).

Decided November 6, 1990

Rehearing denied November 28, 1990

Mark. G. Pitts, for appellant.

John R. Parks, District Attorney, R. Rucker Smith, Assistant District Attorney, for appellee.

Our courts have long acknowledged that when illegal evidence is admitted without objection but is subsequently ruled out on a defendant’s motion to strike, any error in the introduction of that evidence is cured. E.g., Christian v. State, 86 Ga. 430, 431 (3) (12 SE 645) (1890). Since any error in admitting Mansfield’s testimony would have been cured had the trial court granted appellant’s motion to strike (the method appellant chose to challenge that evidence), I cannot agree with Judge Beasley’s special concurrence that this court can justify the denial of that motion merely because it may not have been the most effective way to offset the prejudicial effect on the jury of the admission of that evidence.

I am authorized to state that Chief Judge Carley and Judge Cooper join in this dissent.


author: Beasley, Judge.

text:
    A90A1301.
    JOINER et al. v. LEE et al.
    (399 SE2d 516)
   Beasley, Judge.

Mrs. Joiner and her husband appeal the grant of summary judgment to Dr. Lee, her gynecologist, and Dr. Rottenberg, her urologist, regarding removal of Mrs. Joiner’s right ovary and Fallopian tube. She sued for battery and Mr. Joiner claimed loss of consortium.

In determining whether there are genuine issues of material fact remaining, we must view the evidence in favor of the Joiners, opponents of the summary judgment motions. OCGA § 9-11-56; Gowen v. Cady, 189 Ga. App. 473, 474 (376 SE2d 390) (1988).

Mrs. Joiner began having irregular bleeding after the birth of her youngest child. She underwent a dilation and curettage (D & C) in 1980 which alleviated the problem for a year. She began seeing Dr. Lee in 1985. In July 1986 she underwent a laproscopic examination and another D & C. Fibroid tumors were found. It was determined that a hysterectomy was necessary and Dr. Lee performed it September 17, 1986, at Shallowford Hospital. The consent form which she signed for that surgery listed a possible bilateral salpingo-oophorectomy, or removal of both ovaries and tubes.

During the vaginal hysterectomy, the left ovary was removed because of bleeding complications. The right ovary appeared normal. The next day, she experienced a vaginal discharge which was determined by urologist Rottenberg, brought in by Dr. Lee, to be urine. The leakage was caused by a stitch from the hysterectomy which had entered the bladder, creating a fistula (hole). A second surgery, to be performed by Dr. Rottenberg at St. Joseph’s Hospital, was deemed necessary to close the fistula. It was about six weeks after the first surgery.

Mrs. Joiner signed an authorization form for the second surgery, pursuant to Dr. Rottenberg’s pre-operative orders. The portions which figure in this dispute stated that she authorized and directed “Dr. Rottenberg and/or associates or assistants of his choice to perform the operation(s) or procedure(s) listed above [transvesical repair of vesico-vaginal fistula] including whatever incidental procedures and/or additional services, involving anesthesia, radiology, pathology and the like as may be advisable for my well-being. The general nature of the procedure (s) has been adequately explained to me. ... I understand that, during the course of the operation or procedure, unforseen [sic] conditions may be revealed that necessitate an extension of the original procedure (s) or different procedures than those listed above. I therefore authorize and request that the above named physician, his assistants, or his designees perform such procedures as are necessary and desirable in the exercise of professional judgment. Except in cases of emergency or exceptional circumstances, these operations and procedures are therefore not performed unless the patient has had an opportunity to discuss them with his physician. I understand that I have the right to consent or refuse any proposed operation or special procedure.” During the surgery, in which Dr. Lee participated along with Dr. Rottenberg’s assisting partner, the right ovary and tube were removed upon the advice of Dr. Lee.

The claim against Dr. Lee was that he removed the right ovary and tube “when he had no permission to do so” and therefore committed a battery upon Mrs. Joiner. Plaintiffs stipulated that their cause of action was not one for medical malpractice in either the creation of the fistula or in the removal of the ovaries and tubes.

1. The order granting summary judgment does not specify its basis. One ground relied upon was that this was in reality a medical malpractice case and the failure of plaintiffs to submit an expert’s affidavit in opposition to the defendant-doctors’ affidavits and deposition testimony was fatal.

Plaintiffs are not relegated to a claim of medical malpractice under OCGA § 9-3-70. A cause of action for battery exists when objected-to treatment is performed without the consent of, or after withdrawal of consent by, the patient. OCGA § 51-1-13; Williams v. Lemon, 194 Ga. App. 249, 250 (2) (390 SE2d 89) (1990); Bailey v. Belinfante, 135 Ga. App. 574, 575 (2) (218 SE2d 289) (1975); Mims v. Boland, 110 Ga. App. 477, 481 (1 a) (138 SE2d 902) (1964). Butler v. Brown, 162 Ga. App. 376 (290 SE2d 293) (1982), and Hutcheson v. McGoogan, 162 Ga. App. 657 (292 SE2d 527) (1982), both recognize such claims. See also Perna v. Pirozzi, 92 NJ 446 (457 A2d 431) (NJ S. Ct. 1983); Pizzalotto v. Wilson, 437 S2d 859, 864 (14-15) (La. S. Ct. 1983); Tabor v. Scobee, 254 SW2d 474, 477 (5) (Ky. Ct. App. 1951). As stated by Justice Cardozo while on the New York appellate court, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.” Schloendorff v. Society of N. Y. Hosp., 211 NY 125 (105 NE 92, 93) (1914).

Even if medical treatment is recommended and would be in the patient’s best interest, the patient has the right to refuse such treatment in the absence of conflicting state interest. In re L. H. R., 253 Ga. 439, 446 (321 SE2d 716) (1984); Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 118 (3 c) (372 SE2d 265) (1988).

Consequently, plaintiffs need not meet the requisites of a medical malpractice case. The question is whether Mrs. Joiner’s consent encompassed what transpired, i.e., the removal of the last ovary and tube and the participation of Dr. Lee.

2. The remaining enumerations urge numerous disputes as to material facts.

“In order ‘(t)o prevail on a motion for summary judgment (OCGA § 9-11-56), a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. (Cits.)’ Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981); [Cit.]” Willis v. Allen, 188 Ga. App. 390, 391 (373 SE2d 79) (1988).

Dr. Rottenberg’s motion for summary judgment was based on both the consent forms signed for the St. Joseph’s urologic surgery and the one signed for Dr. Lee’s September gynecological surgery. Dr. Lee’s motion covers only the St. Joseph’s consent form. No authority is cited and we are aware of none holding that a medical consent form signed for one operation or treatment is valid for another operation later and elsewhere. The issue thus centers on the circumstances of the consent and surgery at St. Joseph’s.

The first question is whether it was undisputed that Dr. Lee was one of Dr. Rottenberg’s “associates,” “assistants” or “designees” under the terms of the consent form. Dr. Rottenberg’s understanding after being brought in on the urological problem was that Dr. Lee wanted to be present at the St. Joseph’s surgery to see where the errant stitch was located so the problem could be avoided in the future. He had no hospital privileges at St. Joseph’s, and a temporary privilege was not obtained for this operation.

Dr. Lee first advised Dr. Rottenberg that he would be unable to attend the surgery due to scheduling problems. It was Dr. Rotten-berg’s intention to proceed with the fistula repair without Dr. Lee. At the last moment, Dr. Lee was able to rearrange his schedule. Mrs. Joiner learned from Dr. Rottenberg, while being readied for surgery, that Dr. Lee was present.

No one had mentioned to the Joiners that any reexamination of the pelvic area was planned or anticipated during the surgery. Removal of the right ovary was not contemplated as part of the surgery by Dr. Rottenberg and the ovary and tube would not have been removed had Dr. Lee not been present. Dr. Rottenberg believed, based on what Dr. Lee told him, that Mrs. Joiner’s left ovary and tube were still in place and functioning. After discovering that this was not so, Dr. Rottenberg told Mr. Joiner he would not allow another doctor in his operating room again.

Dr. Lee’s testimony was that he told Dr. Rottenberg to let him know when the surgery was going to take place and they would “do it together.” The removal of the right ovary was not specifically discussed by him with the Joiners or Dr. Rottenberg before the surgery. He was unaware that the consent form did not list the salpingo-oophorectomy. He said he was aware during the surgery that the left ovary had been previously removed, although he acknowledged having told Dr. Rottenberg during the surgery that Mrs. Joiner’s left side had “no problem.”

It is unclear from either doctor’s testimony just what the sequence of events was in the operating room and who did what with respect to the ovary and tube. Thus, the status of Dr. Lee in relation to Dr. Rottenberg within the context of the patient’s consent, and his connection to the gynecological surgery, are for the jury’s resolution.

Another impediment to summary judgment involves the “exceptional circumstances” provision of Mrs. Joiner’s consent. Dr. Rotten-berg deposed that he “thinks” he removed the organs with Dr. Lee’s guidance. If that in fact occurred and Dr. Rottenberg believed that the left ovary was still present and functioning, then the event, according to him, would not have been one of the “exceptional circumstances” which would have merited removal without the patient’s specific consent to it.

The facts under which Dr. Lee concluded the situation merited removal of the remaining ovary and tube are in dispute. Mr. Joiner stated that Dr. Lee, immediately after the surgery, came to the hospital room and told him he had had to remove the right ovary, but there would be no problem because she still had the left one. Mr. Joiner said Dr. Lee disputed him when he reminded him that he had removed the left one in the previous surgery.

Dr. Lee deposed as follows concerning this fact. He initially denied making any statement to Mr. Joiner about the left tube and ovary. He was then asked “Did you ever tell [him] that [her] left tube and ovary were still present in her abdomen?” and answered “Not that I remember. I don’t remember saying that at all.” Mrs. Joiner later spoke with Dr. Lee on the telephone about the situation, and he told her he had been confused when he spoke with her husband. At his deposition, Dr. Lee initially said he did not remember making such a statement to Mrs. Joiner, then denied having done so.

While Dr. Lee’s testimony is not self-contradictory so as to be governed by Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), his failures of recollection as to his conversations concerning the left ovary create questions of fact involving credibility. These are inappropriate for resolution on summary judgment. Griffin v. Housing Auth. of Savannah, 169 Ga. App. 621, 622 (1) (314 SE2d 462) (1984); Whirlpool Corp. v. Hurlbut, 166 Ga. App. 95, 97 (1) (303 SE2d 284) (1983); Jones v. Howard, 153 Ga. App. 137, 142 (2) (264 SE2d 587) (1980).

The doctors argue that whether or not Dr. Lee remembered that he had previously removed her left ovary and tube is not a genuine issue of material fact, but it is. Dr. Lee contends that he concluded the state of her ovary and tube were an “exceptional circumstance” under the terms of the consent form so that removal was needed. It is not conclusively shown, however, that if the jury concluded he did not remember during surgery that he had previously removed the left ovary, as he now contends he did, such would not have changed the “exceptional circumstance” into the type of elective surgery to be done only with the patient’s consent in his mind as it did in Dr. Rottenberg’s.

Because of the inconsistencies between and within the doctors’ testimonies, and considered in light of plaintiffs’ and their witnesses’ testimonies, defendants have not established as a matter of law that Dr. Lee’s involvement was within the scope of the consent or that the circumstances were “exceptional” so that removal of the right ovary and tube was “necessary and desirable in the exercise of professional judgment.” Thus, consent by Mrs. Joiner has not been shown as a matter of law.

Decided November 9, 1990

Rehearing denied November 28, 1990

Drew, Eckl & Farnham, James M. Poe, for appellants.

Sullivan, Hall, Booth & Smith, Terrance C. Sullivan, Michael A. Pannier, Alston & Bird, Dow N. Kirkpatrick II, Karen L. Abrahams, for appellees.

Judgment reversed.

Deen, P. J., and Pope, J., concur.


text:
    A90A1359.
    HART et al. v. SULLIVAN et al.
    (399 SE2d 523)
   Sognier, Judge.

A complaint was filed by plaintiffs, denominated as “George W. Hart and Hart & Sullivan, P.C.,” against Terrance Sullivan, Rush Smith, Jr., Alexander Booth, John Hall, Jr., Elaine Whitehurst, and Michael Frick, the remaining shareholders in the professional corporation, asserting claims, inter alia, for breach of fiduciary duties, tortious interference with contractual relations, RICO violations, and certain equitable matters. Whitehurst and Frick subsequently were voluntarily dismissed from the action. The remaining defendants in their answer specifically challenged the authority of Hart to bring the action on behalf of Hart & Sullivan, P.C. See OCGA § 9-11-9 (a). Defendants moved the court for an order requiring counsel for Hart & Sullivan, P.C. to show proof of authority to act on behalf of the professional corporation, and sought an injunction to prohibit Hart from holding himself out as the professional corporation or as president of the corporation and from interfering with the acts of the corporation. Defendants then filed a motion which was captioned a “motion to dismiss.” The first part of the motion pertained to that part of the complaint involving Hart & Sullivan, P.C. and asserted that the professional corporation had not authorized or permitted the action to be brought. In support of this part of the motion, defendants attached an affidavit and document which set forth a resolution passed by the Board of Directors of Hart & Sullivan, P.C. disavowing the giving of any authorization for the bringing of the action by Hart. The second part of the motion was directed to Hart individually and specified that it was for failure to state a claim upon which relief could be granted.

In its order entered on the three motions, the trial court converted defendants’ motion to dismiss into a motion for summary judgment, then granted it with respect to all claims brought on behalf of Hart & Sullivan, P.C., on the basis that Hart had no authority to bring the action on behalf of the professional corporation. The trial court denied the motion with respect to claims brought by Hart individually, granted defendants’ motion for an interlocutory injunction, and held moot defendants’ motion for an order requiring a showing of proof of authority. This appeal was brought solely from that part of the order granting partial summary judgment to defendants.

1. Because appellants were not given the 30 days to respond to the motion for summary judgment under OCGA § 9-11-56, we agree with appellants that the trial court’s grant of partial summary judgment to appellees was error. The trial court properly treated the first part of appellees’ motion to dismiss as a motion for summary judgment since Hart’s authority to initiate the current action on behalf of Hart & Sullivan, P.C. involved a factual determination which could only be resolved by looking to matters outside the pleadings. Upon the trial court’s conversion of the motion to one for summary judgment (being the first notice to appellants in the record that the motion was one for summary judgment), however, appellants were then entitled to 30 days to respond to the motion as converted before a ruling was made on the motion, Williams v. Columbus, Ga., 151 Ga. App. 311 (259 SE2d 705) (1979), and the entry of the trial court’s order on the summary judgment motion without allowing appellants 30 days to respond was error. Id. As in Williams, the record here is devoid of any notice or a showing that appellants waived notice of conversion to a motion for summary judgment.

We find no merit in appellees’ arguments that appellants’ failure to respond to the “motion to dismiss” as a motion for summary judgment entitled appellees to the grant of partial summary judgment. While courts look to the substance of a pleading rather than its nomenclature in determining its nature, see Chance v. Planters &c. Coop., 219 Ga. 1, 5 (131 SE2d 541) (1963), it would defeat the purpose of the Civil Practice Act as liberally applied by our appellate courts (see Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537, 539 (314 SE2d 903) (1984)) to place the burden on respondents to look beyond the motion as designated by the movant and interpret its “true” nature. A movant’s failure to recognize the nature of a motion and title it accordingly can be allowed neither to penalize the respondent who failed to recognize that the motion was misclassified nor to reward the movant whose error resulted in the incorrect designation.

Thus, we do not agree with appellees that the attachment of an affidavit to their motion to dismiss constituted notice to appellants that the motion was to be converted to a motion for summary judgment. OCGA § 9-11-12 (b) provides that “[i]f, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.” (Emphasis supplied.) Since a trial court is statutorily entitled to exclude from its consideration of a motion to dismiss matters such as affidavits that are attached to the motion to dismiss, until the respondent is notified how the trial court intends to treat the attached material the respondent cannot be certain whether the motion to dismiss will be considered as such or converted into a summary judgment motion. Therefore, until the trial court decides whether to consider or exclude matters outside the pleadings, the mere attachment of an affidavit to a motion to dismiss should not be construed to constitute notice of the conversion of that motion to dismiss into a summary judgment motion. None of the cases cited by appellees supports a contrary result.

Decided November 14, 1990

Rehearing denied November 28, 1990.

Cathey & Strain, Dennis T. Cathey, Edward E. Strain III, for appellants.

Wildman, Harrold, Allen, Dixon & Branch, Thomas B. Branch III, Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, for appellees.

We do not agree with appellees that Uniform Superior Court Rule 6.2 supports their argument that the grant of summary judgment in their favor was correct. That rule provides that “each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion.” While appellants failed to respond to the motion to dismiss, they were not required to respond to the motion for summary judgment, by providing opposing affidavits, until the trial court decided to convert the motion to dismiss into a summary judgment motion. Thus, appellants’ failure to submit affidavits controverting appellees’ affidavit did not entitle appellees to a ruling in their favor.

2. Our holding in Division 1 renders it unnecessary for us to address appellants’ remaining enumerations of error.

Judgment reversed.

McMurray, P. J., concurs. Carley, C. J., concurs in the judgment only.


text:
    A90A1418.
    MARSHALL v. THE STATE.
    (399 SE2d 555)
   Cooper, Judge.

Appellant appeals her conviction by a jury of trafficking in cocaine. Based on information obtained from a confidential informant that appellant was selling cocaine out of her beauty supply store, the police obtained a search warrant for appellant’s business and car. During the search of the store, the police discovered a shoe box containing 100 grams of cocaine of greater than 80 percent purity worth up to $40,000 in clear plastic bags, a briefcase with $3,250, $1,774 in a bank bag and appellant’s handbag containing $1,076 and a small amount of marijuana. Appellant and an employee were charged with trafficking in cocaine. At trial, at the close of the State’s case, the trial court discharged the co-defendant on a motion for directed verdict.

1. Appellant enumerates as error the trial court’s failure to discharge the entire jury panel after prospective jurors made prejudicial remarks in the presence of other jurors during voir dire. The co-defendant’s attorney asked the venire whether anyone believed that because the co-defendant was charged in the indictment, he could not be fair and objective. One prospective juror replied, “I don’t think it’s because he is charged. I think it’s because of preconceived notions of what a drug dealer looks like, and he fits the bill.” Another prospective juror replied, “Well, I used to stay in the projects, and I hated guys like him, and my cousin got killed. He got killed, and I have been trying to set it aside, but I can’t.” Counsel questioned further, “You are going to assume that somebody that’s charged with a crime is guilty of it; is that right?” The juror responded, “Yeah. Because I know him. I used to stay in places like that. So I know.” Both persons were excused for cause. The co-defendant and appellant then moved the court to excuse the entire panel. Denying the motion, the court took no corrective action but commented that it was the court’s impression in cases involving cocaine that the sentiments expressed by the prospective jurors were common. The co-defendant’s attorney then asked the remaining jurors whether there was anyone who did not understand that they should reserve making a decision until all the evidence was presented and not base their decision solely on the State’s evidence. The jury’s silence indicated that they understood their role and could function accordingly. See Pruitt v. State, 176 Ga. App. 317 (1) (335 SE2d 724) (1985).

Appellant argues on appeal that the court should have conducted individual voir dire of each prospective juror out of the presence of the others to eliminate the danger of prejudice; however, the record does not reflect that a request was made for such a procedure. “The conduct of voir dire . . . lies within the sound discretion of the trial court. [Cit.]” Hughey v. State, 180 Ga. App. 375 (2) (348 SE2d 901) (1986). In the instant case, the remarks were directed at the co-defendant exclusively and did not involve appellant’s guilt or innocence. Compare Moore v. State, 156 Ga. App. 92 (274 SE2d 107) (1980); Lingerfelt v. State, 147 Ga. App. 371 (249 SE2d 100) (1978). “While not approving of the trial court’s inaction in this situation, we do not find the potential juror [s’] reference [s] ... so inherently prejudicial as to deny [appellant] a fair trial.” Hughey, supra at p. 378. We conclude that the trial court did not abuse its discretion in refusing to discharge the panel. See Sexton v. State, 189 Ga. App. 331 (2) (375 SE2d 661) (1988).

2. Appellant contends the court’s charge on the lesser included offenses and its repetition of the form of the verdict overemphasized its guilty aspect. “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. [Cits.]” Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982). Appellant was indicted for trafficking in cocaine, and the jury was charged on that offense and the lesser included offenses, possession with intent to distribute and simple possession. The court read the verdict form to the jury once, and “for the purpose of clarity, but not for the purpose of emphasis,” repeated the verdict form. We find that the charge was a correct statement of the law, and viewing the entire charge as a whole, it is apparent that the charge “was a full and fair charge covering all issues to be resolved by the jury.” Id. at 825-826. Further, guilt was not overemphasized by the charge or the verdict form. This enumeration is without merit.

3. Appellant next argues that the affidavit which supported the search warrant did not establish sufficient probable cause for the search of appellant’s business, and the court erred in denying appellant’s motion to suppress. The affidavit provided that the affiant, the officer who supervised the search, was notified by a confidential informant that appellant had recently returned from Florida in a burgundy Camaro with a large amount of cocaine, which she usually transported in her pocketbook. The informant stated that he had seen an “off-white” substance introduced to him as cocaine and that appellant owned a beauty supply store. Affiant averred that the informant had been reliable in the past 90 days, having provided information which led to the, confiscation of illegal contraband. At the hearing on the motion to suppress, affiant testified that four months earlier he had been contacted by the informant, who said that appellant was transporting drugs from Florida and selling cocaine out of her business, and for that reason, affiant began to surveil the location regularly and confirmed via tax records that appellant owned the store. Four days prior to the search, the informant contacted affiant and reported that appellant was in Florida and would soon return. On the night of the search at approximately 9:00, the informant notified affiant that appellant had returned in a burgundy Camaro and that cocaine was in the store. Affiant then drove by the store and spotted a Camaro parked in the store’s lot which matched the description he was given. Affiant also noticed that despite the fact that it was nearly 10:00 p.m., the store was open and people could be seen inside. The warrant was issued at 10:15 p.m., and the search was executed at approximately 11:00 p.m.

“ ‘ “[T]he duty of a reviewing court is simply to ensure that the magistrate [or judge] had a ‘substantial basis ... for conclud(ing)’ that probable cause existed.” ’ [Cits.]” Butler v. State, 192 Ga. App. 710 (1) (386 SE2d 371) (1989). Examination of the contents of the affidavit in support of the warrant, using a totality of the circumstances test, reveals that the judge had a substantial basis for concluding that probable cause existed. Id. This enumeration of error is also without merit.

4. Finally, appellant contends the evidence was insufficient to support the conviction. Viewed in a light to support the jury’s verdict, the evidence demonstrates that at the time the warrant was executed appellant was in her office, sitting behind a desk, and another woman stood next to the desk. The co-defendant was behind the cash register, and a second man faced the co-defendant on the opposite side of the sales counter. On the desk the police discovered an open shoe box, a briefcase, a Douglas County Bank bag, miscellaneous papers and office supplies. Three clear plastic bags of cocaine and a tag receipt referencing a 1986 Camaro belonging to appellant were found in the shoe box. As appellant was removed from the office, her pocketbook was seized by one of the officers. Appellant admitted to one of the officers that she had recently returned from a trip to Disney World in Florida. Appellant denied knowledge of the cocaine and testified that she kept the tag receipt for her car in the car at all times. She argues on appeal that the evidence was tampered with and that other persons had equal access to the cocaine. Based on our review of the entire record, including the evidence discussed above, we find that a rational trier of fact could have found appellant guilty beyond a reasonable doubt of the offense of trafficking in cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

Decided November 28, 1990.

Murray M. Silver, for appellant.

Lewis R. Slaton, District Attorney, Doris L. Downs, Carl P. Greenberg, Joseph J. Drolet, Assistant District Attorneys, for appellee.


text:
    A90A1610.
    ANSLEY v. THE STATE.
    (399 SE2d 558)
   Sognier, Judge.

Shelly Ansley pleaded guilty to a charge of criminal trespass arising from an incident at the Days Inn in Waycross. Her plea was submitted without a sentence recommendation. After conducting a sentencing hearing, the trial court sentenced Ansley to six months in jail. She appeals, enumerating as error the trial court’s consideration of certain testimony of the hotel owner.

Sam Patel, owner of the Days Inn and two other Waycross hotels, testified at the hearing that on several prior occasions he had ordered appellant to depart from the premises of two of his hotels because he discovered her knocking on hotel room doors late at night, and hotel customers called the front desk to complain that she was soliciting for prostitution. When appellant continued this activity despite receiving several warnings from him and one from a police officer, Patel stated he called the police, who arrested appellant for criminal trespass. Appellant contends Patel’s testimony regarding his observations and the actions he took in response was irrelevant because she entered a plea of guilty, that his testimony concerning the complaints received from customers was hearsay, and that the admission of this testimony was unduly prejudicial because it led the court to sentence her based on evidence she was engaging in a crime for which she was not charged.

“ Tn a presentence trial the trier of fact must make a determination as to the sentence to be imposed, taking into consideration all aspects of the crime, the past criminal record or lack thereof, and the defendant’s general moral character. (Cits.) Any lawful evidence which tends to show the motive of the defendant, [her] lack of remorse, [her] general moral character, and [her] predisposition to commit other crimes is admissible in aggravation. . . .’ [Cit.]” Clark v. State, 186 Ga. App. 106, 108-109 (4) (366 SE2d 361) (1988). Actions that are part of the res gestae are included in the type of evidence that may be considered. White v. State, 179 Ga. App. 526 (1) (347 SE2d 6) (1986). Here, evidence of appellant’s actions in knocking on hotel room doors and allegedly soliciting for prostitution would have been admissible at a trial as part of a course of criminal conduct because it was part of the res gestae of the charged crime, see Whitfield v. State, 159 Ga. App. 398, 401 (8) (283 SE2d 627) (1981), and thus the evidence could be admitted in the sentencing hearing. See Boney v. Tims, 254 Ga. 664, 665 (333 SE2d 592) (1985). Patel’s testimony regarding the hotel guests’ complaints, while not admissible to prove solicitation, would have been admissible at a trial of the criminal trespass charge to explain his conduct in giving appellant notice to depart the hotel premises. See OCGA § 16-7-21 (b) (2), (3). Accordingly, we find no error in the court’s consideration of the challenged testimony.

Decided November 28, 1990.

James A. Yancey, Jr., for appellant.

Douglas Gibson, Solicitor, for appellee.

Judgment affirmed.

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


text:
    A90A2319.
    THE STATE v. SEIGNIOUS.
    (399 SE2d 559)
   Beasley, Judge.

Seignious was charged with simple assault, OCGA § 16-5-20, and criminal trespass, OCGA § 16-7-21 (b) (2), stemming from an incident aboard a public school bus.

At the close of the State’s evidence, the court denied defendant’s motion for directed verdict on both counts. At the close of the defendant’s evidence, the court volunteered that in its opinion, there was a fatal variance between the allegata and probata on the criminal trespass charge and that if the jury returned a verdict of guilty, the court would either “set that judgment aside” or “grant a motion for new trial instantly” if defendant requested one on that basis. The court was reluctant to direct a verdict on that charge because it perceived such action would influence the jury’s deliberations concerning the assault charge. The jury acquitted defendant of simple assault and found him guilty of criminal trespass.

Immediately following return of the verdicts, the court stated that it was granting “a new trial” on the criminal trespass charge, impliedly on the ground stated earlier. The court apparently believed there was no evidence of criminal trespass as charged in the accusation, i.e., that defendant had knowingly entered the bus without authority after receiving prior to such entry, notice from the driver that entry was forbidden.

The court recorded its grant of a motion for new trial on the accusation for criminal trespass, recording above it that after hearing evidence stipulated under oath in open court the day after the trial, the court adjudged defendant not guilty based on the allegata/ probata disparity.

The State contends that the court was without authority to “grant a new trial” prior to entry of judgment on the guilty verdict. The State is without standing to bring the present appeal.

This court must look to the substance of what the trial court did. See State v. Bryant, 182 Ga. App. 698, 699 (356 SE2d 656) (1987). The essence of the court’s ruling was to find as a matter of law that there was no evidence that defendant had committed the trespass as alleged and thus, that a verdict of not guilty on the charge was demanded. Regardless of the “new trial” nomenclature used, the court in effect granted a directed verdict of acquittal. See OCGA § 17-9-1. “[W]hat does and does not constitute an acquittal on the merits is to be controlled by the substance of the judge’s action and not the form.” State v. Williams, 246 Ga. 788, 789 (1) (272 SE2d 725) (1980), paraphrasing United States v. Martin Linen Supply Co., 430 U. S. 564 (97 SC 1349, 51 LE2d 642) (1977).

There is no prohibition on the court’s reservation of final ruling on a motion for a directed verdict of acquittal and its rendering a decision after the jury returns a verdict and is dispersed. Ballentine v. State, 194 Ga. App. 560, 562 (4) (390 SE2d 887) (1990). As the statute provides, it “is effective without any assent of the jury.”

Motion for new trial would have been premature as no judgment had been rendered on the jury’s verdict. Joiner v. Perkerson, 160 Ga. App. 343 (287 SE2d 327) (1981); see OCGA §§ 5-5-40 (a) and (b); 5-5-41; 5-5-42 (d).

“A directed verdict of acquittal is not appealable by the [S]tate when the defendant has been put in jeopardy. [Cit.]” State v. Smith, 164 Ga. App. 598 (298 SE2d 583) (1982). The government cannot take such an appeal even if acquittal is erroneously granted. State v. Williams, supra at 788 (1). See OCGA § '5-7-1. Cf. State v. Strickman, 253 Ga. 287 (319 SE2d 864) (1984). “Since the trial court ruled that the [S]tate failed to prove its case as charged and tried, [the State] cannot now appeal [defendant’s] acquittal and subject [him] to a new trial on the merits.” Bryant, supra at 699; State v. Clendinin, 136 Ga. App. 303 (221 SE2d 71) (1975). Even if the order had been a proper grant of new trial, it would not have been appealable by the State, as it is not encompassed in OCGA § 5-7-1.

Decided November 28, 1990.

Jeffrey S. Bagley, Solicitor pro tempore, for appellant.

Guy E. Davis, Jr., for appellee.

Appeal dismissed.

Deen, P. J., and Pope, J., concur.

       In his brief, defendant/appellee asks to supplement the record, and asserts that the trial transcript does not reflect that the trial court’s actions were induced or invited by the State. He claims the supplementation would reflect that following announcement of the guilty verdict on the criminal trespass and release of the jury, the State and the defendant agreed that the court would grant an oral motion for new trial and on a stipulation of the evidence presented at trial would as trier of the facts render a judgment of not guilty, thus avoiding a needless defendant’s appeal. It is unnecessary to reach any question of induced or invited error in order to dispose of the appeal.


text:
    A89A0888.
    DECUBAS et al. v. NORFOLK SOUTHERN CORPORATION et al.
    (399 SE2d 512)
   Cooper, Judge.

This court entered a judgment in the above-styled case at 193 Ga. App. 387 (388 SE2d 336) (1989) reversing the judgment of the trial court. The Georgia Supreme Court granted certiorari in Norfolk Southern Corp. v. Decubas, 260 Ga. 136 (390 SE2d 216) (1990) and reversed our holding, in which we deemed it unnecessary to address one of appellant’s enumerations of error. Accordingly, our judgment is hereby vacated, the judgment of the Supreme Court is made the judgment of this court, and we now address the remaining issue raised in appellant’s appeal.

Appellant contends that the trial court erred in refusing to excuse for cause a prospective juror who knew one of the potential witnesses in the case. During voir dire, appellant’s attorney asked the prospective juror whether he would tend to give the potential witness’ testimony more credit than any other witness. The juror responded: “Like I say, he’s a friend and I know him and I wouldn’t know anybody else. I guess anybody would really, listen to somebody they knew over somebody they didn’t know.” Appellant’s attorney then asked: “You tend to think he might be more truthful based on your knowledge of him as opposed to someone you don’t know?” The juror responded: “Yeah, as far as I know. He’s a pretty truthful man.” When the trial court questioned the juror about whether he could listen to all the evidence from all the witnesses and give them the credit as the court instructed, the juror responded that he could do that regardless of who said what. The juror also stated: “I guess it’s just according to how — what the situation was, just — say him against that fellow right there, I don’t know him. Yeah, I’d probably believe what Joe said before I would that fellow. But, you know, if the evidence was leaning more toward that fellow, I’d go with what — whichever one had the most evidence I guess.” “ ‘Although the juror’s first response to the questions put to [him] indicated a possible bias or prejudice on [his] part, the juror’s opinion was not shown to be so “ ‘fixed and definite that it would not be changed by the evidence or charge of the court upon the trial of the case. [Cit.] [Cits.]’ ” Jones v. State, 184 Ga. App. 4 (2) (360 SE2d 599) (1987). “Whether to strike a juror for cause lies within the sound discretion of the trial court. [Cit.]” Burley v. State, 190 Ga. App. 75, 79 (4) (378 SE2d 328) (1989). Inasmuch as the juror indicated that he could fairly evaluate the evidence, we find no abuse of discretion in the trial court failing to strike the juror for cause. Burley v. State, supra.

Decided November 6, 1990

Rehearing denied November 29, 1990

Taylor & Harp, J. Anderson Harp, Jefferson C. Callier, for appellants.

Blackburn, Bright, Edwards & Dodd, J. Converse Bright, for appellees.

Judgment affirmed.

Deen, P. J., concurs. Birdsong, J., concurs in judgment only.


text:
    A90A0991.
    ADVANCE SECURITY, INC. v. SUPERIOR SURGICAL MANUFACTURING COMPANY, INC.
    (399 SE2d 488)
   Cooper, Judge.

Appellee, a company in the business of selling uniforms, entered into a business relationship with appellant, a security guard firm. The agreement reached by the parties is contained within the contents of a series of letters sent between appellee and appellant. In the first letter, dated March 16, 1983, appellee sent a price list for uniforms to appellant and suggested that appellee maintain an inventory of uniforms at appellee’s warehouse, the level of the inventory to be set forth in a mutually agreeable contract. A letter dated April 28, 1983, from appellee to appellant included a list of proposed inventory levels and provided:

“Enclosed please find various inventory, levels that I propose we carry for Advance Security. We will only carry these levels with your written permission. It is understood that the inventory levels that you authorize are Advance Security’s responsibility and any other inventory that Martin’s Service Uniforms decides to carry on Advance Security’s behalf is the responsibility of Martin’ Service Uniforms.
If at any time Advance Security decides to place its uniform business elsewhere then Advance Security will be required to call in and/or pay for the remaining inventory on hand at that time within a 150 day time period. Advance Security has the right to increase or decrease the attached inventory levels at their own discretion. Marilyn, if you feel that these levels are either too high or too low we will be happy to adhere to whatever you think is in the best interest of Advance.” (Emphasis supplied.)

Appellant responded to this letter on June 6, 1983 as follows:

“This letter is to confirm our agreement concerning inventory levels as per your letter of April 28.
We understand this inventory (copy attached) is our responsibility in the event we should terminate Martin’s Service Uniforms as our supplier." (Emphasis supplied.)

Appellee did approximately $50,000 worth of business with appellant for the six months remaining in 1983 and in 1984, appellant’s business with appellee increased to over $250,000. Because of the increase in business, appellant required more uniforms, and in a letter dated April 9, 1984, appellee notified appellant as follows:

“As per our conversation, we are increasing your inventory levels that we carry for Advance Security. As in our earlier agreement it is understood that the inventory levels that you authorize are Advance Security’s responsibility and any other inventory that Martin’s Service Uniforms decides to carry on Advance’s behalf is the sole responsibility of Martin’s Service Uniforms. All other agreements and understandings as per our letter of April 28, 1983 will remain the same.”

Appellant did not respond to this letter, and appellee proceeded to increase.the inventory levels according to the new inventory levels which were attached to the letter. In 1986, appellant’s business with appellee decreased significantly. Appellee considered the agreement terminated and sent appellant an invoice for the amount of the inventory carried by appellee for appellant. When appellant did not pay the invoice, appellee brought suit against appellant for the balance due on the account. During the trial, appellant moved for a directed verdict which was denied by the trial court. The jury returned a verdict in favor of appellee for $59,928.68, which represented the amount of the inventory remaining in appellee’s warehouse pursuant to the levels set in the April 9, 1984 letter. The trial court subsequently denied appellant’s motions for judgment notwithstanding the verdict and new trial and this appeal followed.

1. In its first two enumerations of error, appellant alleges error in the trial court’s denial of its motion for directed verdict. Appellant first argues that the contract was too vague and indefinite to be enforceable. “The test of an enforceable contract is whether it is expressed in language sufficiently plain and explicit to convey what the parties agreed upon. [Cit.]” Farmer v. Argenta, 174 Ga. App. 682, 683 (331 SE2d 60) (1985). Specifically, appellant contends that the agreement is too vague and indefinite because it does not mention the quantity of goods to be purchased, the price of the goods, the terms of credit or when and where the goods were to be delivered. We find that the April 28 letter and the June 6 letter, when read together, sufficiently express the agreement between appellant and appellee. Appellant agreed to utilize appellee as a supplier of uniforms, and appellee agreed to maintain certain inventory levels provided that if appellant terminated the agreement, appellant would purchase the uniforms remaining in inventory. The record reflects that a price list was sent to appellant with the March 16 letter. At the time the contract was terminated, the “quantity” of uniforms appellant was obligated to purchase equalled the number of uniforms in inventory, previously authorized by appellant, and those uniforms were to be paid for in full within 150 days after appellant was invoiced for the uniforms. “ ‘A contract will not be held unenforceable for indefiniteness because its performance is, as to particular details, left open to subsequent agreement of the parties.’ [Cit.]” Knoxville Med. Investors v. Nat. Healthcorp, 192 Ga. App. 460 (3) (385 SE2d 110) (1989). We do not find that the agreement was so vague and indefinite as to make it unenforceable.

Appellant also contends that the agreement was unenforceable because it was unilateral and lacking in mutuality. While appellant was not required to make any specific purchases, appellant was responsible for the inventory maintained by appellee at appellant’s request, and appellee was required to ensure the specified amount of inventory was available for appellant’s purchase. We find that “the mutual promises and obligations of the parties constituted sufficient consideration for the contract. [Cits.]” Atlanta Six Flags Partnership v. Hughes, 191 Ga. App. 404 (1) (381 SE2d 605) (1989). Accordingly, we find no error with the trial court’s denial of appellant’s motion for directed verdict.

2. In its third and fourth enumerations of error, appellant contends that the trial court erred in failing to charge the jury (1) that where there is no agreement and specific detail as to the quantity of goods to be purchased, the terms of the purchases, or when or where the goods are to be delivered, then such a contract is too indefinite to be capable of enforcement and (2) that where the purported agreement gives the buyer the right to determine how and when it may purchase from the seller and where the buyer has on occasions purchased from sources other than the seller and if the purported contract is unilateral, then the contract is unenforceable. The trial court charged the jury that “a promise to be enforceable must be sufficiently definite as to subject matter.” “A requested charge is properly refused when ‘the principle involved (is) substantially covered in the court’s general charge, the requested language (is) not adjusted to the evidence, or the requested language (is) argumentative.’ [Cit.]” Shaw v. McDonald’s Restaurants, 191 Ga. App. 583 (2) (382 SE2d 632) (1989). The charges requested by appellant were argumentative and not adjusted to the facts of the case; therefore, it was not error for the trial court to refuse to give the charges.

Decided October 19, 1990

Rehearing denied November 29, 1990

Long, Weinberg, Ansley & Wheeler, Dan B. Wingate, Yvette M. Chapman, for appellant.

Fierman & Noland, Martin L. Fierman, for appellee.

3. Since appellant’s motion for judgment notwithstanding the verdict and motion for new trial were based on the same grounds previously discussed in his opinion, the trial court likewise did not err in denying the motions. See Wedgewood Carpet Mills v. Color Set, 149 Ga. App. 417 (4) (254 SE2d 421) (1979).

Judgment affirmed.

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