author: Ruffin, Judge.

text:
    A97A0960.
    WALKER et al. v. VIRTUAL PACKAGING, LLC et al.
    (493 SE2d 551)
   Ruffin, Judge.

Paul Walker and other plaintiffs (collectively ‘Walker Plaintiffs”) sued The Color Studio, LLC (“TCS”), Virtual Packaging, LLC (“Virtual”), and Thomas Sucher to dissolve TCS and to recover damages for breach of contract and breach of fiduciary duty. The defendants moved for partial summary judgment on the ground that the Walker Plaintiffs could not recover damages for breaches of contractual obligations that exclusively benefited TCS. The trial court granted the defendants’ motion for summary judgment, and the Walker Plaintiffs appeal. For reasons which follow, we affirm in part and reverse in part.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review is de novo. Bandy v. Mills, 216 Ga. App. 407 (454 SE2d 610) (1995).

Viewed in the light most favorable to the Walker Plaintiffs, the record shows that they are the original individual members of TCS, which was a Georgia limited liability company. Defendant Virtual purchased a 50 percent membership interest in TCS from the Walker Plaintiffs and entered into an agreement (“Members’ Agreement”) regarding the reconstituted limited liability company. The Members’ Agreement included a non-competition covenant, which provided that TCS’s members could not “solicit, contact, call upon, communicate with or attempt to communicate with any employee of [TCS], with a view to soliciting said employee to either leave [TCS’s] employment or to become employed by [TCS’s competition].”

TCS’s members also signed an operating agreement (“Operating Agreement”) controlling the management and operations of TCS. As part of this agreement, the parties chose defendant Thomas Sucher, a member of Virtual, to manage TCS. The Operating Agreement placed certain limitations on Sucher’s authority as manager. For example, under the Operating Agreement, Sucher could not, “without the express consent” of one of the Walker Plaintiffs, Daniel L. Sessions, execute assignments on behalf of TCS.

When disputes between the Walker Plaintiffs and the defendants arose concerning TCS’s operations, it became impossible for TCS’s members to continue the company in conformity with the Operating Agreement. The Walker Plaintiffs therefore sued to dissolve TCS and to recover damages for breach of contract. As the basis for their breach of contract claim, the Walker Plaintiffs asserted that Virtual and Sucher solicited TCS’s employees in violation of the non-competition covenant in the Members’ Agreement. They also alleged breach of fiduciary duty as follows: “Defendant Sucher individually and on behalf of Defendant Virtual breached the non-compete agreement regarding solicitation of [TCS] employees, breached his fiduciary duty to plaintiffs, breached paragraph 3 of the Operating Agreement and has otherwise violated the letter and spirit of the agreements among the parties.” Afterwards, the Walker Plaintiffs filed amended complaints alleging that “Defendants breached their fiduciary duty to Plaintiffs to Plaintiffs’ damage.” The factual basis of the claim for breach of fiduciary duty is unclear from the record.

The parties subsequently entered a consent order (“Consent Order”) dissolving TCS and reserving for resolution the issues involving breach of the non-competition covenant, breach of fiduciary duty, and an accounting in connection with the dissolution of TCS. Thereafter, the defendants moved for summary judgment on the Walker Plaintiffs’ claim for breach of the non-competition covenant, contending that no issue of damages remained after the dissolution of TCS. The defendants argued that the Walker Plaintiffs were not beneficiaries of the contract, and “[i]n order for a third party to have standing to enforce the contract it must clearly appear from the contract that it was intended for his or her benefit.” The Walker Plaintiffs responded and also filed a cross-motion for summary judgment. They argued that “if [TCS] were to still exist, any claim . . . would be in the form of a derivative action[,]” but when TCS was dissolved, it assigned its causes of actions for damages to the individual members of the company. (Emphasis supplied.)

The trial court granted the defendants’ motion for summary judgment and denied the Walker Plaintiffs’ cross-motion. In its order, the trial court found as follows: (1) the Walker Plaintiffs were claiming damages derivatively, as former members of TCS, as a result of the alleged breach of the Members’ Agreement by Virtual and Sucher; (2) the Members’ Agreement was for the sole benefit of TCS; (3) the Walker Plaintiffs were not third-party beneficiaries of the Members’ Agreement; (4) there is no provision in the Georgia Limited Liability Company Act that would permit a cause of action belonging to a limited liability company under these circumstances to survive the dissolution of the company; and (5) the Walker Plaintiffs provided no evidence that Virtual or Sucher competed with TCS before the court-ordered winding up of the company. The trial court concluded that “since [TCS] could not conduct business [after the dissolution], there was no entity with standing to enforce the [non-competition covenant in the] Members’ Agreement.”

The Walker Plaintiffs appeal the grant of the defendants’ motion for summary judgment, asserting that a material issue of fact remains concerning their claim for breach of the non-competition covenant. In addition, the Walker Plaintiffs allege error because the trial court did not consider their claim for breach of fiduciary duty when ruling on the summary judgment motions.

1. We first address the Walker Plaintiffs’ argument that the trial court erred in not considering the breach of fiduciary duty counts of the amended complaints in its ruling. The trial court’s order does not refer to the Walker Plaintiffs’ claim for breach of fiduciary duty. Therefore, the trial court implicitly ruled on and granted summary judgment on this issue by not specifically reserving that claim when the court granted the defendants’ summary judgment motion. Walker and Virtual neither raised the issue of breach of fiduciary duty in their respective motions, nor later amended their motions to include such a claim. Moreover, our review of the record shows that neither party provided the trial court with a statement of undisputed material facts regarding the claim for breach of fiduciary duty. In addition, on appeal, the defendants do not dispute the Walker Plaintiffs’ assertion that “the trial court erred in failing to consider the breach of fiduciary duty counts of the Amended Complaints in its ruling.” As a result, that issue was not properly raised and the trial court should not have ruled on it. See Aycock v. Calk, 222 Ga. App. 763, 764 (476 SE2d 274) (1996). Accordingly, the trial court’s order granting summary judgment to the defendants is reversed to the extent that it includes a ruling on the Walker Plaintiffs’ breach of fiduciary duty claims.

2. The Walker Plaintiffs also assert that the trial court erred in ruling on the issue of whether “Virtual or Sucher competed with Color[.]” Like the breach of fiduciary duty claim, that issue was not before the trial court. Therefore, we also reverse the trial court’s judgment with regard to that ruling. See Aycock, supra.

3. We next consider the various standing theories raised by the Walker Plaintiffs and the trial court to determine if they are meritorious. First, the Walker Plaintiffs contend that TCS, in the Consent Order, implicitly assigned to them its right to sue for the breach of the non-competition covenant. To support this contention, the Walker Plaintiffs rely on language in the Consent Order that distributes, pro rata, the assets of TCS to its members and reserves any unresolved disputes left in this civil action after the dissolution of TCS.

Specifically, the Walker Plaintiffs stated their argument in the trial court as follows: “Since the parties expressly reserved this claim unless it was disposed of by the Consent Order and since the Consent Order specifically did not dispose of it and specifically left all undis-posed of claims open, the sole remaining issue can only be whether — as a matter of law and independent of the parties expressed agreement — a claim for damages originally belonging to a Limited Liability Company can be distributed pro rata to the members upon dissolution. The claim by TCS against [defendants Sucher and Virtual is a ‘chose in action’ belonging to TCS prior to its dissolution. The question therefore must be whether such a chose in action is distributable to the owners of TCS. Clearly TCS has attempted an assignment by its agreement to assign its property to its owners.”

On appeal, the Walker Plaintiffs argue that if the trial court had found that TCS, via the Consent Order, assigned the claim for breach of the non-competition covenant to them, then the trial court would have concluded that they had standing to proceed. Accordingly, the Walker Plaintiffs assert that the trial court erred.

As a general rule, an action on a contract is brought by a party to it. Reaugh v. Inner Harbour Hosp., Ltd., 214 Ga. App. 259, 261 (3) (447 SE2d 617) (1994). Nevertheless, if one of the original contracting parties assigns all of its rights, title and interest in that contract to an assignee, the assignee is the real party in interest. Allman v. Hope, 200 Ga. App. 137, 138 (1) (407 SE2d 107) (1991). And, “[e]very action shall be prosecuted in the name of the real party in interest.” OCGA § 9-11-17 (a). Moreover, because “a proper consent order may be treated as a binding agreement, enforceable as a contract[,]” Collins v. Collins, 148 Ga. App. 103, 105 (2) (250 SE2d 870) (1978), we look to the Consent Order to see if an assignment occurred.

“ ‘The cardinal rule of [contract] construction is to determine the intention of the parties. But no construction is required or even permissible when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation.’ [Cit.]” Bradley v. British Fitting Group, 221 Ga. App. 621, 623 (3) (472 SE2d 146) (1996). Contrary to the Walker Plaintiffs’ argument, the record shows that TCS did not assign a chose in action to the Walker Plaintiffs in the Consent Order because TCS did not comply with the terms of the Operating Agreement regarding assignments. According to the Operating Agreement, TCS’s manager, Sucher, could not, “without the express consent” of one of the Walker Plaintiffs, Daniel L. Sessions, execute assignments on behalf of TCS. (Emphasis supplied.) Neither the Consent Order nor any other part of the record shows such express consent.

Further, the Consent Order was not a novation of the Operating Agreement or of the Members’ Agreement because the Walker Plaintiffs and Sucher did not extinguish those agreements in the Consent Order. See Beasley v. Agricredit Acceptance Corp., 224 Ga. App. 372, 373-374 (1) (480 SE2d 257) (1997). TCS continued to operate pursuant to the Members’ Agreement and the Operating Agreement. The Walker Plaintiffs and Virtual do not dispute that Sucher continued to act as the manager of TCS until its dissolution — seven days after the Consent Order was filed. The Members’ Agreement and Operating Agreement are the only documents in the record that gave Sucher this authority. Consequently, it is obvious that the Consent Order did not extinguish the earlier agreements. TCS therefore did not assign a chose in action to the Walker Plaintiffs. Accordingly, we affirm the trial court’s decision that no assignment occurred.

4. The Walker Plaintiffs further claim that the trial court erred in finding that the Walker Plaintiffs did not have standing to bring their claim for breach of the non-competition covenant because they were not third-party beneficiaries of the Members’ Agreement. Although we agree with the trial court’s finding that the Walker Plaintiffs were not third-party beneficiaries, we disagree with the conclusion that the Walker Plaintiffs therefore did not have standing to sue for breach of the non-competition covenant. The defendants do not dispute that the Walker Plaintiffs were parties to the Members’ Agreement, which contains the non-competition covenant at issue. Each of the Walker Plaintiffs signed the agreement on behalf of TCS and “individually.” Accordingly, the Walker Plaintiffs were not “third parties” at all, they were parties to the contract at issue. The trial court therefore erred in concluding, based on a third-party beneficiary analysis, that the Walker Plaintiffs could not bring a claim for the breach of the non-competition covenant in the Members’ Agreement. As a result, we also reverse the trial court’s grant of the defendants’ summary judgment motion on this basis.

5. Finally, we address the Walker Plaintiffs’ argument that “the trial court erred by finding that [their] claims were derivative claims.” The trial court found that the “[Walker] Plaintiffs in this action are claiming damages derivatively (as former members of [TCS]) as a result of the alleged breach by Virtual and Sucher of the Agreement.” In their response to the defendants’ summary judgment motion, however, the Walker Plaintiffs specifically stated that they were not pursuing a derivative action. Moreover, the defendants never raised the issue of whether the Walker Plaintiffs’ claims were derivative in nature. We interpret the trial court’s order to mean that the Walker Plaintiffs could not have maintained a direct action against the defendants. The distinction between a derivative action and a direct action rests upon the party being directly injured by the alleged wrongdoing. Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584, 586 (1) (397 SE2d 699) (1990). A trial court must determine whether the claims are derivative claims or direct claims. Id. at 585. Therefore, while the trial court properly raised this issue, sua sponte, the court could not decide this issue without giving the parties an opportunity to be heard.

“Although our law concerning motions for summary judgment allows a trial court to grant, sua sponte, a summary judgment, a trial court’s authority to do so is not unlimited. The grant of summary judgment must be proper in all other respects. This means that in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment. The crucial point is to insure that the party against whom summary judgment is sought has had a full and final opportunity to meet and attempt to controvert the assertions against him.” (Citations and punctuation omitted; emphasis in original.) Aycock, supra at 764.

The record does not support the conclusion that the Walker Plaintiffs had a full and final opportunity to controvert the trial court’s findings that their claims were derivative. For example, neither party cited legal authority or presented any legal analysis on the issue of whether the plaintiffs were “claiming damages derivatively[.]” In addition, no facts, undisputed or otherwise, were alleged by either party to support or contest that finding by the trial court. We therefore also reverse the trial court’s ruling on this issue.

Judgment affirmed in part and reversed in part and case remanded.

Decided October 15, 1997

Reconsideration denied November 4, 1997

John T. Longino, for appellants.

Mitchell & Mitchell, James H. Bisson III, Witt, Gather & Whitaker, Jonathan M. Minnen, for appellees.

Birdsong, P. J, and Senior Appellate Judge Harold R. Banke concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Smith, Judge,

license: Public Domain

text:
    A97A1462.
    CRAVEY v. JOHNSON.
    (493 SE2d 536)
   McMurray, Presiding Judge.

Larry Eugene Cravey seeks to avoid a release he and his spouse executed in favor of Georgia Farm Bureau Mutual Insurance Company’s (“Farm Bureau”) deceased insured, James Emory Sheppard. Cravey contended that a Farm Bureau agent (claims adjuster) duped him into signing the release in exchange for $15,000 by misrepresenting facts relevant to Cravey’s own insurance coverage at a time when Cravey was bed-ridden, under the influence of pain medication and recovering from severe head and body injuries sustained during a head-on automobile collision with Sheppard. The trial court granted summary judgment in favor of Sheppard’s estate finding that Cravey was not mentally incapacitated when he signed the release and that Cravey had no right to rely on the representations of Farm Bureau’s claims adjuster. We reverse because genuine issues of material fact remain as to whether the release is voidable based on alleged material misrepresentations by Farm Bureau’s claims adjuster during a time when Cravey’s capacity was diminished.

Cravey filed his affidavit in opposition to Sheppard’s estate’s motion for summary judgment. He pertinently deposed as follows: “My name is Larry Eugene Cravey, and ... I am 32 years old. . . . On May 31, 1990, I was involved in an automobile collision which occurred on Ga. Hwy. 31 approximately .7 of a mile south of the city limits of McRae, Georgia. At that time, a vehicle driven by James Emory Sheppard crossed the center line of the roadway, entered my lane of travel and collided with my vehicle. At the time of the collision, I was insured under a policy of insurance issued by Southern Trust Insurance Company [(“Southern Trust”) providing] uninsured motorist coverage in the amount of $50,000.00. . . .

“The vehicle driven by Mr. Sheppard was insured by Georgia Farm Bureau Mutual Insurance Company. The week following the accident I was contacted by Jim Norris, an adjuster employed by Georgia Farm Bureau. He told me that he wanted to go ahead and pay the coverage under Mr. Sheppard’s policy of insurance because he considered it to be a case of clear liability and that Mr. Sheppard was responsible for my injuries. I was seriously injured in the accident and was hospitalized for five days immediately following the accident. I sustained the following injuries: both bones in my left lower forearm were shattered and required surgery and the installation of metal plates to hold them together, my teeth and upper jaw were severely injured and required surgery to repair facial bones and I now wear a partial plate for five teeth. When I was discharged from the hospital on June 4, 1990, I was confined to a hospital bed at home. Because both of my knees were injured in addition to my arm and mouth injuries, I could not get out of bed. Also, because of the injuries to my mouth and teeth, I could not speak very well. I was swollen and bruised all over, especially in my chest. I was in a lot of pain and took pain medication approximately every two or three hours. Further, I was out of work for six months at which time I returned to only occasional work. I worked in a family owned, business and therefore could arrange convenient hours. However, it was almost a year before I returned to regular full-time employment. My medical expenses for all of the surgeries and medical treatment total over $28,000.00. Further, I anticipate having to have further medical treatment for my injuries.

“The accident occurred on Thursday, May 31, 1990 and I remained in the hospital, the Medical Center of Central Georgia, in Macon, for five days and was discharged on or about June 4, 1990. I first spoke with Mr. Norris on just one or two days after I got home to McRae[, Georgia]. At that time, I was on pain medication. In my conversation with Mr. Norris he told me that he would talk to my insurance agent and then get back in touch with me. Mr. Norris told me that all the coverage Farm Bureau had was $15,000.00. He also told me that because Mr. Sheppard had been killed in the accident, there was no one that I could sue.

“A day or so later Mr. Norris got back in touch with me at my home. At that time I was still on pain medication. Mr. Norris reiterated to me what he had previously told me about coverage and that he talked with my insurance agent. He told me there was no more coverage and that I might as well take the $15,000.00. In reliance upon Mr. Norris’ representation, I signed the release and took the money.

“Several months after the accident, I started getting notices from the doctors and hospitals that my bills were unpaid because my insurance benefits were exhausted. I called Southern Trust and spoke with a lady named Jill Selph. I told her that I did not think my coverage was exhausted and that I should have uninsured motorist coverage sufficient to pay any outstanding medical bills. Initially, Ms. Selph told me that I was wrong and that my coverage was exhausted. When I told her that could not be right, she indicated that she would check with her supervisor and get back with me. She called back and told me that I did in fact have uninsured motorist coverage of $50,000.00.

“A few days after that conversation, I received a letter from Southern Trust asking for certain information. I provided that information and ultimately received a letter from Southern Trust indicating that they were denying any claims under the uninsured motorist coverage.” Held:

A claims adjuster, even absent a fiduciary relationship, may not induce a claimant by trick, artifice or misrepresentations to sign a general release while the claimant is under a disability which deprives him of the capacity to read, reason or investigate for himself. See Mallard v. Jenkins, 179 Ga. App. 582, 583 (347 SE2d 339). This rule is consistent with OCGA § 33-6-3’s ban against unfair or deceptive acts or practices in the business of insurance and is in harmony with OCGA § 51-1-35 (a)’s provision that no person whose interest may become adverse to an injured person may, for 15 days from the date of the occurrence causing the injury, negotiate or attempt settlement of a matter with an injured party who is confined to a health care facility.

In the case sub judice, there is not only proof that Farm Bureau’s claims adjuster persuaded the Craveys to sign a general release eight days after Mr. Cravey sustained serious head and body injuries and while Mr. Cravey was under the influence of mind-dulling drugs, there is evidence that this claims adjuster may have purposely misled the Craveys about his investigation into the extent of Mr. Cravey’s coverage and then inaccurately informed Mr. Cravey that he had no further insurance coverage — a representation relating to a subject outside the terms of the release but within Mr. Cravey’s alleged reasons for executing the release. Under such circumstances, we find that genuine issues of material fact remain as to whether Mr. Cravey may avoid the release based on the alleged practices and utterances by Farm Bureau’s claims adjuster in violation of the ban mandated in OCGA § 33-6-3. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Compare Fincher v. Dempsey, 209 Ga. App. 222 (433 SE2d 78), and McCoy v. State Farm Ins. Cos., 199 Ga. App. 675 (405 SE2d 743), where there was no proof that the insurers’ agents prevented the claimants from reading releases which would have disclosed the agents’ alleged duplicity.

The trial court erred in granting Sheppard’s estate’s motion for summary judgment.

Judgment reversed.

Beasley, Ruffin and Eldridge, JJ, concur. Andrews, C. J., Birdsong, P. J., and Smith, J., dissent.

Smith, Judge,

dissenting.

I respectfully dissent. In my view, Cravey’s amended complaint and affidavit submitted in opposition to Johnson’s motion for summary judgment did not raise genuine issues of material fact.

1. With regard to Cravey’s claim that he was mentally incompetent to execute the release, this Court should recognize and apply the rule that “every man is presumed to have all his mental faculties and to be of normal and ordinary intelligence, and where it is contended that one who executed a contract was not competent to execute it, the burden is upon him who asserts the incompetency. Mental or physical impairment is never presumed. It must be proved. In order to void a contract on the ground of mental incapacity of the maker, he must have been non compos mentis, that is, entirely without understanding, at the time the contract was executed. It is also the policy of Georgia law, wherever possible, to uphold contracts and to uphold the capacity of one to enter into a contract.” (Citations and punctuation omitted.) Nelson v. State Farm Life Ins. Co., 178 Ga. App. 670, 672 (1) (344 SE2d 492) (1986).

It is true that Cravey claimed in his amended complaint that he was mentally incompetent to execute the release because he was under the influence of medication at the time he executed it. But this contention is belied by other allegations. Cravey contended in the amended complaint that his intent at the time he executed the release was only to release claims against liability coverage afforded by Georgia Farm Bureau on behalf of its insured, the driver of the other vehicle in the collision. He also claimed, however, that he did not intend to release any claims to the extent that they were covered by uninsured motorist benefits under a policy issued to him by Southern Trust. It is disingenuous to argue that Cravey was competent to execute the release insofar as it affected Farm Bureau’s coverage but incompetent to execute it inasmuch as it affected other coverage. Cravey’s allegation of incompetence simply does not satisfy his burden of showing that he “was entirely without understanding at the time the contract was executed.” (Citation and punctuation omitted.) Nelson, supra at 672. While Cravey may have been mistaken as to the effect of the release, mistake is not equivalent to incompetency.

Cravey’s affidavit testimony also failed to show that he was mentally incompetent to sign the release. While it recited that Cravey suffered significant injuries to his knees, face, and one arm, that he took pain medication approximately every two or three hours, and that he was on that medication when he signed the release, this evidence alone does not show that he was unable to read and understand the release under the standard of Nelson, supra, when he signed it. It shows m.erely that Cravey was taking pain medication. This case is factually distinguished from Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339) (1986), cited by the majority. In Mallard, plaintiff was in pain and under the effects of pain medication when she signed a release. But she also swore that she was semi-literate and could not read with any proficiency. Id. at 583. And while we concluded that the medication affected her ability to reason, we based our reversal of the trial court’s grant of summary judgment to defendants primarily on the “even clearer reason” that a jury issue was presented as to whether plaintiff could have read and understood the release “even had she not been under any other disability.” Id. Mallard is inapt because, unlike the plaintiff in that case, Cravey has not claimed that he suffered from “a disability which deprived him of the capacity to read or reason.” (Emphasis omitted). Id. See also McCoy v. State Farm Ins. Cos., 199 Ga. App. 675 (405 SE2d 743) (1991).

Contrary to Cravey’s argument, reversal is also unwarranted under Wheat v. Montgomery, 130 Ga. App. 202, 205-206 (7) (202 SE2d 664) (1973). In that case, plaintiff signed a release but raised the issue of her incompetency in opposition to summary judgment. She swore, among other things, that she was unable “to think clearly.” Id. at 205. This Court reversed the trial court’s grant of summary judgment to defendant. We stated that once she raised the issue, defendant bore the burden of rebutting her allegation that she was not competent. Apparently defendant failed in this regard. But here, the record — including Cravey’s own pleadings — rebuts his claim of incompetence by revealing his ability to reason at the time he signed the release. Cravey’s reliance on Wheat is consequently misplaced.

2. The documents submitted by Cravey also do not show that the adjuster’s alleged statements amounted to actionable misrepresentation. “[N]o fiduciary relationship exists between one having a claim against an insured and the agent of a liability carrier who seeks settlement of the claim, and a release obtained by him from a party having a claim for damages is binding, even if the statements and representations made by him relative to liability or non-liability for the damages were incorrect or based upon erroneous reasons, unless he has prevented the claimant from making investigation of his legal rights. [Cits.]” Conklin v. Liberty Mut. Ins. Co., 240 Ga. 58, 60 (239 SE2d 381) (1977). Here, as in Conklin, even assuming the adjuster made the alleged statements to Cravey, the record does not show that he engaged in any “artifice, trick or actual fraud . . . that would avoid the release.” Id. Cravey had no reasonable basis to rely upon the alleged representation of another’s insurer, especially when Cravey could himself have determined the extent of his own coverage through the simplest of measures — a telephone call to his own insurer. The law is clear that a person cannot claim fraud “about a matter equally open to the observation of all parties where no special relation of trust or confidence exists. [Cits.]” Hubert v. Beale Roofing, 158 Ga. App. 145, 146 (279 SE2d 336) (1981).

Decided October 10, 1997

Reconsideration denied November 4, 1997

Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, for appellant.

Groover & Childs, Frank H. Childs, Jr., McNatt, Greene & Thompson, Hugh B. McNatt, Troy L. Greene, for appellee.

Cravey’s argument that a fiduciary relationship was created by the adjuster’s statements that he would — and did — talk with Cravey’s own insurance agent is unavailing. Universal Underwriters Ins. Co. v. Smith, 253 Ga. 588 (322 SE2d 269) (1984), relied upon by Cravey, does not support this argument. That case addresses the issue of personal injury damages to a third party when an insurance company undertakes to make and negligently performs a safety inspection on which the third party was entitled to rely. The issues in this case are wholly unrelated to such a pre-accident inspection but instead focus on representations concerning coverage made with regard to a post-accident claim.

Because Cravey failed to show that he was legally incompetent when he signed the release or that the adjuster made material misrepresentations amounting to fraud, I would affirm the trial court’s grant of summary judgment.

I am authorized to state that Chief Judge Andrews and Presiding Judge Birdsong join in this dissent.


author: Blackburn, Judge.

text:
    A97A1780.
    SINGLETON v. THE STATE.
    (493 SE2d 556)
   Blackburn, Judge.

James Bennett Singleton appeals his conviction by a jury of selling cocaine and attempting to sell cocaine. Singleton contends that the trial court erred in charging the jury on attempt, in denying his challenge to the jury array, and in denying his motion for new trial on those grounds.

1. Singleton asserts that he wás denied equal protection and due process under the law as a result of the trial court’s alleged interference with the jury array. Prior to jury selection, Singleton’s counsel objected to the jury array, contending that because it contained no African-Americans, it did not properly reflect the minority population of the county. During the trial court’s inquiry into this challenge, it was determined that the 1990 census for White County reflected that African-Americans over the age of 18 made up 2.6 percent of the county population. The trial court also determined that African-Americans made up 2.53 percent of the jury array for that day. The trial court acknowledged that an African-American was originally to be included within the panel from which Singleton’s jury was selected; however, because that juror was late reporting for duty, he was put at the end of the list with the other late jurors. Singleton contends that the trial court’s failure to include this juror on his panel artificially excluded the juror so that the make-up of the panel was no longer random.

The mere fact that a jury panel contains no members of a defendant’s race will not, standing alone, support a challenge to the array and warrant the granting of a motion for new trial. See Hudson v. State, 185 Ga. App. 508 (1) (364 SE2d 635) (1988). Rather, the proper “inquiry concerns the procedures for compiling the jury lists and not the actual composition of the grand or traverse jury in a particular case.” Patterson v. Balkcom, 245 Ga. 563, 565 (1) (266 SE2d 179) (1980).

In the present case, Singleton challenges the trial court’s practice of putting late jurors at the end of the jury list. Although we have found no cases that specifically address this practice, we cannot say that such a procedure affects the randomness of the jury panel as it is entirely random as to which jurors will arrive late on a given day. There was no competent evidence of systematic exclusion or under-representation of prospective jurors of Singleton’s race. See Campbell v. State, 240 Ga. 352, 355 (2) (240 SE2d 828) (1977). “The fact that the jury panel in this particular case actually contained a lower percentage of blacks is not especially significant. There is no constitutional guarantee that the grand or petit juries, impanelled in a particular case will constitute a representative cross-section of the entire community.” (Punctuation omitted.) Truitt v. State, 212 Ga. App. 286, 287 (441 SE2d 800) (1994). See also Smith v. State, 151 Ga. App. 697, 699 (4) (261 SE2d 439) (1979). Therefore, the trial court did not err in overruling Singleton’s objection to the jury array.

2. Singleton next contends that the trial court erred in charging the jury on attempt. Singleton was indicted for two counts of selling cocaine. However, at trial it was discovered that the second sale did not take place in White County. Because evidence was presented regarding an attempt to sell cocaine in White County, the trial court charged on attempt.

OCGA § 16-4-3 provides that “[a] person charged with commission of a crime may be convicted of the offense of criminal attempt as to that crime without being specifically charged with the criminal attempt in the accusation, indictment, or presentment.” The evidence presented, viewed in the light most favorable to the verdict, establishes that on October 17, 1995, an informant asked Singleton for some cocaine. Singleton did not have any cocaine but said he could get some. Together they drove to Tony Rucker’s house where Singleton took the informant’s money and got out of the car to go to the house. When Singleton returned to the car he stated that Tony was not home and that the “girl [at the house] didn’t want to sell him anything because she was afraid of [the informant].” Tony Rucker’s house is in White County. Singleton and the informant then drove to a location in Hall County where Singleton obtained cocaine and sold some to the informant.

Decided October 20, 1997

Reconsideration denied November 4, 1997

Charles B. Brown, for appellant.

Albert F. Taylor, Jr., District Attorney, Darrell E. Wilson, Mary E. Moore, Assistant District Attorneys, for appellee.

“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. As there was evidence that Singleton attempted to sell the informant cocaine in White County, the trial court did not err in charging the jury on attempt.

Judgment affirmed.

Johnson, J, and Senior Appellate Judge Harold R. Banke concur.


author: Judge Harold R. Banke.

text:
    A97A2275.
    ALLSTATE INSURANCE COMPANY v. JUSTICE et al.
    (493 SE2d 532)
   Judge Harold R. Banke.

This appeal arose from a declaratory judgment action in which Allstate Insurance Company sought a determination as to whether the homeowner’s insurance policy at issue afforded coverage for personal injuries sustained when its insured shot a bystander. Enumerating four errors, Allstate appeals the jury verdict obligating it to defend and indemnify its insured.

While at a party, Allstate’s insured, Kenneth Justice, discovered that George Jordan was armed and threatening to steal his gold necklace. Justice then walked home and retrieved his father’s revolver from a nightstand. Justice returned to the party, became embroiled in a confrontation with Jordan in which both youngsters displayed their weapons, but eventually tempers subsided. Shortly thereafter, Jordan left the party and returned with a shotgun. When Justice spotted Jordan armed with the shotgun, he pulled out the revolver and jumped behind a car. After Jordan fired a shot from behind a tree, Justice returned fire, shooting the gun twice. A stray bullet struck Leonard Williams, who was uninvolved in the incident and had parked across the street. Williams was wounded in the hip as he exited his car with his young daughter. Justice, who was 13 or 14 at the time of the incident, denied aiming the weapon at Jordan. He testified that he did not intend to hurt Jordan, was scared, and was shooting to protect himself and to frighten Jordan away. According to Justice, he had never met Williams, did not know that Williams was in the area, and had no intent to hurt or shoot him. Allstate paid Williams’ medical expenses and allegedly assured Justice’s parents that the incident was covered under the policy at issue.

After Williams filed suit against Kenneth Justice and his parents, Robert and Ann Justice, Allstate then filed the underlying declaratory judgment action against the Justices and Leonard Williams. Allstate contended two exclusions for criminal and intentional acts foreclosed coverage. One exclusion precluded coverage for “bodily injury . . . intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of any insured person.” It further stated: “This exclusion applies even if: (b) such bodily injury . . . is of a different kind or degree than that intended or reasonably expected; or (c) such bodily injury ... is sustained by a different person than intended or reasonably expected.” The other exclusion provided: “[w]e do not cover bodily injury . . . intended by, or which may reasonably be expected to result from the intentional act or acts or omissions of, any insured person, which are crimes pursuant to the Georgia Criminal Code. However, this exclusion shall not apply if such act or omission was for the preservation of life or property.”

At trial, the parties disputed the nature of Justice’s conduct. Allstate contended his actions were criminal and intentional. The defendants countered that Justice’s actions were taken for self-preservation and that although Justice intended to fire the pistol, he had absolutely no intention of injuring Jordan or Williams. Allstate appeals the jury’s determination the shooting incident fit within the parameters of the policy. Held:

1. Allstate asserts that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict because Williams’ injuries did not “arise from an occurrence” within the meaning of the policy. An “accident” is an event which takes place without one’s foresight, expectation, or design. Southern Guaranty Ins. Co. v. Phillips, 220 Ga. App. 461, 462 (1) (469 SE2d 227) (1996). Under the facts here, the jury could find that the shooting was an accident caused by a stray bullet and an “occurrence” within the meaning of the family liability policy at issue. Compare Phillips, 220 Ga. App. at 462 (1) (“accident” refers to “unexpected happening” as opposed to deliberate and intentional shooting of victim). Inasmuch as the nature of the incident was a disputed issue, we cannot say Allstate was entitled to a directed verdict. OCGA § 9-11-50 (a). Hiers-Wright Assoc. v. Manufacturers Hanover Mtg. Corp., 182 Ga. App. 732 (2) (356 SE2d 903) (1987) (directed verdict and motion j.n.o.v. only proper where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a particular verdict).

2. Allstate contends that coverage for the incident at issue was precluded by the intentional and criminal acts exclusion. In employing the rules of contract construction, insurance policy exclusions are construed most strongly against the insurer and in favor of providing the coverage sought. Southern Guaranty Ins. Co. v. Saxon, 190 Ga. App. 652 (379 SE2d 577) (1989).

In applying the exclusion for intentional or expected bodily injury, the general rule is “if the insured intends some injury, however slight or minor, and a different or greater injury occurs, then the exclusion applies.” West American Ins. Co. v. Merritt, 216 Ga. App. 822, 823 (456 SE2d 225) (1995). “Intent” means having a desire to bring about particular consequences which are substantially certain to result from the act. Merritt, 216 Ga. App. at 823. “ ‘[M]ere knowledge and appreciation of a risk, short of a substantial certainty, is not the equivalent of intent.’ (Citations omitted.)” Brown v. St. Paul Fire &c. Ins. Co., 177 Ga. App. 215, 216 (338 SE2d 721) (1985). In using the substantial certainty test for determining intent, a jury could find that when Justice deliberately fired the pistol, he had no intent to wound Jordan and that he had no reason to be substantially certain that an errant bullet might hit a person whose presence he was unaware of. While the general risk of some third party’s* injury during the shooting may have been appreciable, the evidence did not demand a finding that Justice knew that an injury was substantially certain to occur. See Brown, 177 Ga. App. at 217. Because the evidence did not demand a finding that the insured intended to harm Jordan, a jury could find that the intentional injury exclusion including the exclusion for a different kind of injury, did not apply. Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 335 (2) (291 SE2d 410) (1982). See Southern Guaranty Ins. Co. v. Saxon, 190 Ga. App. at 653. Notwithstanding Allstate’s contention to the contrary, the jury had to determine the meaning of “intended” and “reasonably expected.” See Stinson v. Allstate Ins. Co., 212 Ga. App. 179, 181 (1) (441 SE2d 453) (1994) (jury issue created as to whether insured’s conduct fit objective “reasonable person” standard). Compare Ga. Farm &c. Ins. Co. v. Purvis, 213 Ga. App. 239, 240 (444 SE2d 109) (1994) (where vandals intended to inflict property damage, the fact that damage exceeded their intent did not vitiate exclusion).

Moreover, the policy exclusion for intentional or criminal acts was inapplicable “if such act or omission was for the preservation of life or property.” The evidence showed that after the initial confrontation for which Justice had armed himself had concluded, Justice had no reason to believe that his assailant would return armed with a shotgun and fire at him. A jury could, therefore, find that Justice fired the pistol to preserve his own life. See OCGA § 16-3-21. Notwithstanding Allstate’s contention to the contrary, the facts do not support a finding of “mutual combat” which requires mutual fault and mutual intent to engage in such combat because of a sudden quarrel. Langford v. State, 212 Ga. 364, 366 (1) (93 SE2d 1) (1956).

3. Allstate asserts that the trial court erred in two jury instructions. However, although Allstate excepted to Williams’ charge number one and Justice’s charge number three, it failed to inform the court of its reasons for doing so, depriving the trial court of the opportunity to evaluate the nature of the objections and to rule intelligently on the specific points raised. OCGA § 5-5-24 (a); Christiansen v. Robertson, 237 Ga. 711, 712 (229 SE2d 472) (1976). By not setting forth its grounds for its exceptions, Allstate failed to preserve the alleged errors for appeal. Lissmore v. Kincade, 188 Ga. App. 548, 551 (4) (373 SE2d 819) (1988); see First Union Nat. Bank v. Cook, 223 Ga. App. 374, 378 (6) (477 SE2d 649) (1996).

Notwithstanding its failure to properly except to the charge, Allstate contends that the instructions constituted substantial error harmful as a matter of law under OCGA § 5-5-24 (c). We disagree. See Greenhill v. State, 199 Ga. App. 218, 222 (404 SE2d 577) (1991); Wisenbaker v. Warren, 196 Ga. App. 551, 555 (5) (396 SE2d 528) (1990) (appellant must show erroneous charge caused gross injustice which likely deprived it of fair trial).

(a) In one instruction, the court charged that the jury would be required to find for the defendants if it concluded that the actions of Kenneth Justice were for the preservation of life or property. Although the language could likely have been worded better, the instruction as a whole is not confusing and the latter portion of the charge tracks the language of the insurance policy at issue.

Decided October 9, 1997

Reconsideration denied November 4, 1997

Chambers, Mabry, McClelland & Brooks, Eugene P. Chambers, Jr., Deeann B. Waller, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, Joseph L. Waldrep, Self, Mullins, Robinson, Marchetti & Kamenski, Miller P. Robinson, Deron R. Hicks, F. Houser Pugh, for appellees.

(b) In the other charge, the trial court instructed, “I further charge you that under the Georgia law an exclusion in a family liability insurance policy based on an intentional act of a person under the policy does not exclude coverage under the policy where there is an intentional act by the insured, but the insured did not intend to causé the injury which resulted from the intention or act.” However, the intentional act exclusion at issue expressly stated that coverage • was precluded even if the bodily injury is of a different kind or degree than intended, and even if the bodily injury is sustained by a different person than intended or reasonably expected. This instruction did not accurately reflect that part of the exclusion. Nevertheless, in light of Allstate’s failure to properly except to this instruction, and because the jury could still have found for the defendants if it determined that Justice acted to preserve his own life, Allstate cannot prove the requisite harm to necessitate reversal. Moon v. Kimberly, 116 Ga. App. 74, 75 (2) (156 SE2d 414) (1967).

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       Although Allstate repeatedly claims that Justice aimed and fired into a crowd of people, Allstate failed to offer any evidence that Williams was part of a crowd or that Justice aimed and fired into a crowd.

       The policy in Stinson differed from the instant policy and provided: “We do not cover any bodily injury . . . which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by an insured person.” Stinson, 212 Ga. App. at 180 (1).


author: Birdsong, Presiding Judge.

text:
    A95A1429.
    NELSON et al. v. C. M. CITY, INC. et al.
    (493 SE2d 569)
   Birdsong, Presiding Judge.

In Nelson v. C. M. City, Inc., 218 Ga. App. 850 (463 SE2d 902), we reversed the trial court’s grant of summary judgment to Curtis Mathes, C. M. City, Inc. and NEC Technologies, Inc. in a suit for damages caused by a defective television.

The trial court held that Curtis Mathes was merely a “product seller” under OCGA § 51-1-11.1 and Alltrade, Inc. v. McDonald, 213 Ga. App. 758 (445 SE2d 856). We held in Division 1 (Nelson, supra) that defendant Curtis Mathes was not a mere “product seller” of the television set because Curtis Mathes had “input into its making, either by design or manufacture or assembly.” (Emphasis supplied.) Id. We held in Division 2 that where OCGA § 51-1-11.1 defines “product seller” as one who assembles a product pursuant to “a manufacturer’s” plan, intention, design or specifications, this language refers to one who assembles a product “pursuant to some other’s plan, intention, design [or] specifications.” Curtis Mathes sold a product made and assembled pursuant to its own plan, intention, design or specifications and was not a “product seller” entitled to immunity. Nelson, supra at 853. The Legislature did not intend to immunize a “seller” who conceives and formulates a certain product, represents to the public that this product is of high quality because it manufactured it, puts its name on the product, and as evidence and confirmation thereof, affixes to it warranties, warnings, or instructions. Id. at 852-853.

Decided November 4, 1997

Newton, Smith, Durden, Kaufold & Rice, Howard C. Kaufold, Jr., for appellants.

Howard & Racz, Wayne S. Racz, Dillard, Bower & East, Bryant H. Bower, Jr., Hunter, Maclean, Exley & Dunn, Glen M. Darbyshire, Jones & Smith, Julian B. Smith, Jr., Robert B. Sullivan, for appel-lees.

We further held in Divisions 3 and 5 in Nelson that C. M. City, Inc. may be liable for breach of an implied warranty of fitness and that Curtis Mathes may be liable for the actual maker’s negligence if such negligence violates Curtis Mathes’s express warranty.

Those holdings have not been reversed and they stand affirmed.

The Supreme Court issued a writ of certiorari to other issues in the case. See Divisions 4 and 6 of Nelson, id. That court’s remittitur indicates our entire decision was “reversed,” but the Supreme Court’s decision proves otherwise. NEC Technologies v. Nelson, 267 Ga. 390 (478 SE2d 769). The Supreme Court addressed only Divisions 4 and 6 of our opinion. Our rulings in those divisions were the only part of our opinion which was reversed.

The judgments of the trial court stand reversed according to Divisions 1, 2, 3 and 5 of our decision in Nelson, supra, and the trial court’s judgments stand affirmed according to the Supreme Court’s view of the issues stated in Divisions 4 and 6 of Nelson. NEC Technologies, supra. The trial court is directed to enter judgment and proceed accordingly.

Judgments affirmed in part and reversed in part.

Johnson and Smith, JJ, concur.


author: Pope, Presiding Judge.

text:
    A97A1156.
    COFFEE COUNTY SCHOOL DISTRICT v. KING.
    (493 SE2d 563)
   Pope, Presiding Judge.

Appellant Coffee County School District claims that the superior court erred in denying its motion for summary judgment, in which it argued that Tammy Jo King’s personal injury suit was barred because of sovereign immunity. Concluding that the denial of the motion was proper, we affirm.

This lawsuit arose from an accident on April 18,1995, between a vehicle King was driving and a Coffee County school bus driven by Mathew Roberts. On November 9, 1995, King filed suit against the Coffee County Board of Education (she subsequently substituted Coffee County School District for this defendant) and Roberts. King alleged that she was injured when Roberts, acting in the scope of his employment, negligently drove the bus. It is undisputed that on the accident date, the Coffee County School District had in effect a liability insurance policy.

The Coffee County School District and Roberts filed a summary judgment motion, claiming that the lawsuit was barred by sovereign and official immunity. The superior court denied the motion and we granted the school district’s application for interlocutory review. Here, citing Coffee County School Dist. v. Snipes, 216 Ga. App. 293 (454 SE2d 149) (1995), and Rawls v. Bulloch County School Dist., 223 Ga. App. 234 (477 SE2d 383) (1996), the school district argues that the court erred by denying its motion. We disagree and affirm.

In Coffee County School Dist. v. Snipes, this Court concluded that the 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983 extended sovereign immunity to county-wide school districts. “This sovereign immunity can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver. Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e). See Gilbert v. Richardson, 264 Ga. 744, 747-748 (3) (452 SE2d 476) (1994).” (Punctuation omitted.) Rawls v. Bulloch County School Dist., 223 Ga. App. at 235. Thus, in deciding whether the Coffee County School District is immune from suit, we must determine whether there is legislation which specifically waives the immunity.

Although the Georgia Tort Claims Act provides for a limited waiver of the state’s sovereign immunity, school districts are expressly excluded from the waiver. Coffee County School Dist. v. Snipes, 216 Ga. App. at 295; OCGA § 50-21-22 (5). Thus, the pertinent statutes to our inquiry are OCGA § 33-24-51 and the statutes regarding the liability of school boards, OCGA §§ 20-2-991 and 20-2-1090. OCGA § 33-24-51 (b) waives the sovereign immunity of a county as to tort claims which arise out of the alleged negligent use of an insured motor vehicle — to the extent of the insurance. Gilbert v. Richardson, 264 Ga. at 749 (4); Woodard v. Laurens County, 265 Ga. 404 (1) (456 SE2d 581) (1995); Blumsack v. Bartow County, 223 Ga. App. 392 (477 SE2d 642) (1996). In Blumsack v. Bartow County, this Court explained: “[pjursuant to OCGA § 33-24-51 (a), a county has the authority to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the county. Subsection (b) of this statute provides that if the county provides liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties, its governmental immunity shall be waived to the extent of the amount of insurance so purchased. OCGA § 33-24-51 (a) gives counties the right to purchase insurance; OCGA § 33-24-51 (b) describes when insurance operates to waive sovereign immunity.” (Citations and punctuation omitted.) Blumsack v. Bartow County, 223 Ga. App. at 393.

OCGA § 20-2-991 provides that boards of education are authorized to purchase liability insurance policies insuring employees and board members against damages arising out of the performance of their duties based on negligence. OCGA § 20-2-1092 provides that — in addition to insuring school children against injury pursuant to OCGA § 20-2-1090 — the school boards are authorized to insure the general public against injury resulting from the negligent operation of school buses. Then OCGA § 20-2-1092 states: “[njothing, however in this part shall be construed as imposing legal liability upon such boards on account of such accidents. Wherever an insurance company issues a policy containing such a provision, the company shall be estopped to deny its liability thereunder on account of the nonlia-bility of the school board.”

Here, the Coffee County School District argues that Snipes and Rawls indicate that because OCGA §§ 20-2-991 and 20-2-1090 pertain specifically to boards of education and because nothing in those statutes specifically waives sovereign immunity, OCGA § 33-24-51 does not apply, and the immunity was not waived. We disagree. In Coffee County School Dist. v. Snipes, 216 Ga. App. at 296, which involved a lawsuit for injuries a child suffered in a fall, the court explained that because neither OCGA § 20-2-991 nor any other legislative act specifically waived the school district’s immunity, the Coffee County School District was entitled to summary judgment. See also Davis v. Dublin City Bd. of Ed., 219 Ga. App. 121 (3) (464 SE2d 251) (1995).

Decided November 4, 1997

Dillard, Bower & East, Bryant H. Bower, Jr., Joseph E. East, for appellant.

Starling & Starling, Donald A. Starling, for appellee.

Rawls v. Bulloch County School Dist., 223 Ga. App. at 234, involved a fight between school children near a school bus, in which this Court also determined that there was no waiver of sovereign immunity. The Court stated: “[n]o bus was involved in a collision or accident in this case, and OCGA § 20-2-1090 says nothing about a waiver of sovereign immunity or the extent of any such waiver. Compare OCGA § 33-24-51 as interpreted in Gilbert, supra at 748-751 (4).” Id. at 235-236. Neither Snipes nor Rawls involved a vehicular accident with an insured bus and thus this Court did not address the interrelation of OCGA §§ 20-2-1092 and 33-24-51.

The critical fact in this case is that a vehicular accident was involved and the waiver of sovereign immunity under OCGA § 33-24-51 is dispositive. See Blumsack v. Bartow County, 223 Ga. App. at 393; Crider v. Zurich Ins. Co., 222 Ga. App. 177 (474 SE2d 89) (1996); see generally Crisp County School System v. Brown, 226 Ga. App. 800 (1) (487 SE2d 512) (1997). This result does not conflict with OCGA § 20-2-1092 and comports with prior cases interpreting OCGA § 33-24-51 as a specific waiver of immunity. See, e.g., DeKalb County School Dist. v. Bowden, 177 Ga. App. 296 (339 SE2d 356) (1985); Ga. Farm &c. Ins. Co. v. Greene, 174 Ga. App. 120, 121 (329 SE2d 204) (1985); see generally Roberts v. Burke County School Dist., 267 Ga. 665 (482 SE2d 283) (1997).

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


author: Johnson, Judge.

text:
    A97A1208.
    MORRISON v. TRUST COMPANY BANK.
    (493 SE2d 566)
   Johnson, Judge.

Michael Morrison filed a complaint for specific performance, alleging Trust Company Bank (hereinafter “the bank”) breached a contract to sell real estate. The parties filed cross-motions for summary judgment. The court granted the bank’s motion and denied Morrison’s motion for summary judgment. Morrison appeals, and we affirm.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]” Id.

Viewed in that light, the record shows the following: Morrison and the bank, through their brokers, entered into negotiations for the sale of commercial real estate owned by the bank. Morrison’s broker faxed a proposed contract to the bank’s broker. The bank’s broker and vice-president made several changes to the proposed contract, striking a provision that permitted the inspection of the bank’s books and records, and sent the changed proposal back to Morrison’s broker. A day or two later, Morrison’s broker sent a new draft which failed to include all the proposed revisions by the bank. The new draft still contained the inspection provision deleted by the bank. The bank’s vice-president once again deleted the inspection provision, made a few other changes, and signed several copies of the document. Meanwhile, Morrison signed counterparts which did not contain these deletions.

It is undisputed that the two parties failed to agree in writing to a single set of terms. The contract proposed by Morrison and the contract proposed by Trust Company Bank contradicted one another in two ways: (1) Morrison’s proposed contract contained an inspection provision that would allow Morrison to inspect the bank’s books and records regarding the property and (2) Morrison’s proposed contract provided for closing at a place designated by Morrison as opposed to the bank. Both these proposals contained a merger clause, stating each document contained the entire agreement and no effect would be given to any prior oral agreements or understandings.

As stated above, the bank twice refused to accept the inspection provision, and Morrison twice failed to delete the provision. As a matter of policy, the bank did not accept inspection provisions of this type. Upon discovering that Morrison intended to use the property to operate an adult bookstore, the bank terminated negotiations and notified Morrison it was withdrawing its offer to sell the property.

1. Morrison first alleges that his failure to delete the inspection clause and failure to modify a clause relating to the place of closing were merely “scrivener’s errors” and were never intended to actually modify the contract. According to Morrison, he had no interest in the bank’s records and such a mistake does not constitute a counteroffer because he did not have the specific intent to make a counteroffer. This argument lacks merit.

Georgia law is clear: “[Acceptance of an offer must be unconditional, unequivocal, and without variance of any sort; otherwise, there can be no meeting of the minds and mutual assent necessary to contract formation. Accordingly, a subsequent communication by one party to the alleged contract that varies even one term of the original offer is a counteroffer. [Cit.]” Lamb v. Decatur Fed. &c., 201 Ga. App. 583, 585 (1) (411 SE2d 527) (1991). Attempting to circumvent the law, Morrison argues that he did not intend to make a counteroffer. However, intent has never been an element of making a counteroffer. This is especially true when, as here, a party’s nonconforming proposed contract contained a merger clause stating that all prior agreements and understandings would have no effect.

Contrary to Morrison’s argument, this case does not involve a “scrivener’s error.” Morrison cites no authority and we have located no authority for the proposition that varying terms can constitute a scrivener’s error. McLoon v. McLoon, 220 Ga. 18, 19 (1) (136 SE2d 740) (1964), the only case cited by Morrison in support of his argument, is inapplicable. In McLoon, the parties did not dispute entering into a binding contract, and the court was only asked to resolve an ambiguity arising from documents prepared after the creation of the contract. Id. at 18-19. By contrast, the case before us does not involve “mistake of the scrivener and . . . oversight of the parties,” but presents the question of whether a contract existed in the first place. Id. at 19. Accordingly, Morrison’s argument lacks merit.

2. Morrison further contends that the differing terms constitute an “immaterial variance” and should not prevent the contract formation. In support of this argument, Morrison relies on Crystal Cubes &c. v. Kutz, 201 Ga. App. 338 (1) (411 SE2d 53) (1991), cases from other jurisdictions, which are not binding on this Court, and the Uniform Commercial Code, which he admits is not applicable to real estate transactions.

OCGA § 13-3-2 states as follows: “The consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition.” Morrison, contending that Georgia applies a materiality exception to the “mirror image” rule, concludes that the inspection provision was not material to the contract and that he, not the bank, should have been granted summary judgment.

We need not decide whether Georgia law contains a materiality exception to the “mirror image” rule because it is clear from the record that the provision for inspection of the bank’s books and records was a material provision that the bank did not want in the contract. This is not a case where an additional term or condition finds its way into a contract without prior discussion between the parties, leaving for debate whether either party would have cared about the additional term had they discussed it. On two separate occasions the bank removed the inspection provision from Morrison’s proposed contract. Both times, Morrison failed to do so. Although Morrison contends he had no intention of inspecting the bank’s books and records, this is not a minor variation such as a change in the date of delivery of documents in Crystal Cubes.

Morrison asserts that the discrepancies are immaterial because the bank would have proceeded with the sale, notwithstanding the discrepancies, but for his intention to run an adult bookstore. In support of this assertion, Morrison cites testimony of the bank’s broker, where he speculated that Tedd Watts, the bank’s representative in charge of negotiations, might have gone forward but for Morrison’s intention to run an adult bookstore. However, Watts clarified that, but for Morrison’s line of business, “[w]e would have continued to negotiate and hopefully sold the property to Mr. Morrison.” (Emphasis supplied.) This testimony, as well as other undisputed evidence that the bank would not have agreed to the inspection provision under any circumstances, illustrates that the inspection provision was a material term which needed to be agreed upon by both parties before a valid, binding contract was formed.

3. Morrison asserts that even if we find the trial court did not err in refusing to grant his motion for summary judgment, we must reverse the trial court’s grant of summary judgment to the bank because a question of material fact exists regarding whether the parties intended to form a contract. He argues that the bank’s representatives made reference to the “contract” between the parties and used words indicating that the parties had an enforceable contract. However, words used by the bank’s representatives are not evidence of whether an enforceable contract was formed, especially considering that the words could be interpreted in different ways and that all the representatives whose words were cited by Morrison unequivocally denied the existence of a binding contract between the parties.

Based on the foregoing, we find that the trial court did not err in granting the bank’s motion for summary judgment and denying Morrison’s motion for summary judgment.

Judgment affirmed.

Pope, P. J., and Senior Appellate Judge Harold R. Banke concur.

Decided November 4, 1997.

Stanley E. Kreimer, Jr., for appellant.

King & Spalding, Mark M. Maloney, for appellee.


text:
    A97A1824.
    McNEIL v. THE STATE.
    (493 SE2d 570)
   Ruffin, Judge.

A jury found James C. McNeil guilty of driving under the influence of alcohol and failure to maintain lane. McNeil appeals, challenging the trial court’s decision to sequester his expert during the presentation of the State’s case. For reasons which follow, we affirm.

“The trial court is vested with broad discretionary powers in enforcement of the sequestration rule, which will not be controlled absent abuse of discretion. [Cit.]” Lassiter v. State, 175 Ga. App. 338, 340 (5) (333 SE2d 412) (1985). We therefore review the record to determine if that abuse was committed. The record shows that prior to presenting its evidence at trial the State asked to “invoke the rule,” and to sequester McNeil’s only witness, an expert on the subject of field sobriety evaluations. McNeil responded, alleging that the arresting officer’s testimony would be the basis for his expert’s opinion. McNeil argued that an expert may hear the testimony that will be the basis for his opinion and that “the defense would be greatly prejudiced by not allowing [its] expert to sit in court and to hear the [arresting officer’s] testimony.” In support of his argument, McNeil cited Greenway v. State, 207 Ga. App. 511, 514 (4) (428 SE2d 415) (1993) (affirming trial court’s ruling that forced defendant to choose between having his expert assist during trial or be sequestered before testifying). The judge questioned McNeil’s counsel to determine how the defense would be prejudiced if the court enforced the sequestration rule. During that questioning, the judge learned that McNeil’s expert had already reviewed a motions hearing transcript containing the arresting officer’s testimony. In addition, the judge considered the Greenway case and discussed that case’s holding with McNeil’s counsel. The judge then sequestered McNeil’s expert.

On appeal, McNeil claims that the trial court abused its discretion when it did so. McNeil argues that the trial court could not exclude his expert from the courtroom because Georgia’s sequestration statute, OCGA § 24-9-61, provides only that “either party shall have the right to have the witnesses of the other party examined out of the hearing of each other” (Emphasis supplied.) He contends that his expert would only be present during the State’s case, so no violation of the sequestration statute would occur because based on this Court’s interpretation of OCGA § 24-9-61, “no violation of the statute occurs [when] a witness hears the testimony of the witnesses of the opposing party. [Cit.]” Greenway, supra at 514.

Decided November 4, 1997.

Glaze & Glaze, Amy K. Waggoner, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Assistant Solicitor, for appellee.

McNeil is correct that “[a]s a matter of right a party can invoke the ‘rule’ only as to the witnesses of the opposite party. However, the court in the exercise of its sound discretion as an inherent power to administer justice may apply the rule to all witnesses of all parties from either direct or indirect communication to preserve the integrity of testimony.” (Citations omitted.) Gray v. State, 222 Ga. App. 626, 631 (2) (476 SE2d 12) (1996). We have previously approved the longstanding practice of the trial courts, which, when asked, have required all witnesses to leave the courtroom and remain outside until they are called to testify. Rooks v. State, 65 Ga. 330, 331 (1880). See also Gray, supra at 631. Furthermore, the trial court, in its broad discretion, may permit or deny a witness to remain in the courtroom to assist counsel, even if OCGA § 24-9-61 does not require the court to sequester the witness. Gray, supra at 631. Accord Greenway, supra at 514. Thus, “[e]ven when an expert witness would be assisted by hearing the testimony of preceding witnesses instead of answering a hypothetical question and could assist counsel in conducting the cross-examination, the grant or denial of such exemption lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion.” Gray, supra at 631.

In this case, the judge heard McNeil’s arguments and evaluated the appropriate legal principles before deciding to sequester the expert. While it is permissible to allow an expert to remain unseques-tered in the circumstances of this case, we cannot say that the trial judge abused his discretion by requiring the expert to be sequestered. Accordingly, we affirm the trial court’s judgment.

Judgment affirmed.

Birdsong, P. J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A2015.
    COUCH v. THE STATE.
    (493 SE2d 577)
   Ruffin, Judge.

A jury found Terry Lee Couch guilty of aggravated battery, aggravated assault and possession of a firearm during the commission of a crime. Couch appealed, claiming that the trial court erred in refusing to grant his motion for new trial and in failing to charge the jury on voluntary intoxication. We affirm.

Viewed in a light most favorable to support the jury’s determination of guilt, the evidence at trial reveals that on October 3, 1995, Couch and a friend, Jimmy Coe, each consumed a 12-pack of beer. That evening, while still intoxicated, Couch and Coe went to the home of Terry Brown, Couch’s friend at the time. Brown invited them in and Couch, who was acting mad and agitated, repeatedly asked Brown why Brown had not come to see him lately. Couch then went into a bathroom. When he returned, he told Brown, “I’m going to kill you.” Couch took a gun from his pocket, pointed it at Brown and pulled the trigger. The gun did not fire, so Couch cocked the gun and pulled the trigger a second time. The gun fired, hitting and wounding Brown in his midsection. As Brown lay on the floor, Couch stood over him and said, “I hope you die, mother f_.” At trial, Couch claimed to remember nothing of the events that transpired at Brown’s home.

1. Ón appeal, Couch claims that he was entitled to a new trial because his voluntary intoxication caused him to suffer “more than a temporary alteration of brain function which negated his malicious intent to commit the crimes in question.” See Horton v. State, 258 Ga. 489 (8) (371 SE2d 384) (1988). While the evidence shows that Couch was drinking prior to the incident and perhaps even intoxicated, there was insufficient evidence to support a voluntary intoxication defense. See Peters v. State, 224 Ga. App. 837 (1) (481 SE2d 898) (1997). Couch failed to show that his ability to distinguish between right and wrong had been affected or that the alteration in his brain function was more than temporary. Sydenstricker v. State, 209 Ga. App. 418 (2) (433 SE2d 644) (1993).

Accordingly, the evidence adduced at trial was sufficient to enable a rational trier of fact to find Couch guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Therefore, Couch’s motion for new trial was properly denied.

2. Couch incorrectly asserts that the trial court failed to charge on voluntary intoxication. The record shows that the court did charge on voluntary intoxication. It merely refused to give the portion of Couch’s requested charge that stated “if because of the influence of alcohol. . . one’s mind becomes so impaired as to fender him incapable of intentionally doing the act charged or of understanding that a certain consequence would likely result form [sic] it, he would not be criminally responsible for the act.” The charge requested by Couch “ ‘is misleading to the extent that it implies that voluntary intoxication in and of itself may be a defense to a crime[.]’ [Cit.]” Williams v. State, 180 Ga. App. 854, 855 (2) (350 SE2d 837) (1986). Couch’s charge was not an accurate statement of the law and the trial court did not err in refusing to give it. Id.

Decided November 4, 1997.

Johnny B. Mostiler, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A2224.
    ABRAMS v. THE STATE.
    (493 SE2d 561)
   Ruffin, Judge.

A jury found Darnell Abrams guilty of armed robbery and possession of a firearm during the commission of a crime. Abrams appeals, challenging the admission of certain testimony, the trial court’s limitation on his closing argument, and the sufficiency of the evidence to support the convictions. For reasons which follow, we affirm.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that Abrams used a gun to demand money from John Hardin. Hardin was working at a package store, John’s Party Center, Inc., which is a corporation owned by him and his wife. Hardin and his employee, Harold Alexander, saw a man wearing a hood over his head enter the store carrying a nine millimeter gun. The man pointed the gun at Hardin and said, “I want your money.” Hardin complied, and handed the man more than $2,000 in $20 bills. When the man left with the money, Hardin saw his car and called 911 with its description. A short while later the police saw the car, gave chase in their cars and later on foot, and eventually arrested Abrams. At that time, Abrams voluntarily told the police that he had gone into John’s Party Center and that he knew the location of Hardin’s money. Afterwards, the police took Abrams back to John’s Party Center for Hardin and Alexander to identify. Because Abrams wore a hood during the robbery, Hardin and Alexander could only tell the police that Abrams was the correct height and wore the same clothing as the disguised man.

The police then took Abrams to jail where he made a second voluntary statement admitting his involvement in the robbery, but denying that he had a gun. Abrams also voluntarily gave a third statement to the police later that evening. Although the police recorded this third statement on audiotape, and the State played it for the jury, the court reporter did not transcribe the audiotape, and we do not have that statement for appellate review.

Abrams testified at trial and admitted entering John’s Party Center, raising a gun, and demanding money. Abrams claimed, however, that a man named Holmes or Thess forced him to commit the robbery by holding Abrams at gunpoint. No other witness testified to seeing this second man during the robbery, although the police saw a second man, a passenger in Abrams’ car, after the robbery.

1. In his first enumeration of error, Abrams argues that the trial court improperly admitted hearsay testimony. On appeal, we will uphold the trial court’s admission of this evidence unless it is clearly erroneous. Cf. Stovall v. State, 216 Ga. App. 138 (453 SE2d 110) (1995). The record shows that a police investigator testified about the identification of Abrams by Hardin and Alexander. Over objection, the investigator testified that Hardin told him that Abrams “was the right size and the clothing was right.” The investigator also testified that Alexander provided similar information. We find no error.

“A law enforcement officer is permitted to testify to a vocal fact of identification witnessed by himself without its being subject to a hearsay objection.” (Citation and punctuation omitted.) Neal v. State, 211 Ga. App. 829, 830 (1) (b) (440 SE2d 717) (1994). Accordingly, based on Neal, the trial court properly admitted the investigator’s testimony. The trial court also correctly admitted the investigator’s statements because Hardin and Alexander testified about their identification of Abrams at the trial and they both were available for Abrams to cross-examine. See Williams v. State, 224 Ga. App. 665 (2) (482 SE2d 415) (1997); Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985) (purpose of the hearsay rule satisfied when declarant is in court and available for cross-examination). We therefore find no error in the trial court’s ruling.

2. Next, Abrams contends that the trial court improperly limited his closing argument. On appeal, we review the record to determine if the trial court abused its discretion by limiting the scope of defense counsel’s closing argument. Morgan v. State, 267 Ga. 203 (1) (476 SE2d 747) (1996). The trial court prohibited Abrams’ counsel from highlighting for the jury a variance between the allegations of the indictment and the proof at trial. Hardin testified that Abrams stole money from his corporation, John’s Party Center, and not from him personally, but the State alleged in the indictment that Abrams took Hardin’s property. The trial court did not abuse its discretion in prohibiting Abrams from making this improper argument.

“[0]ne charged with theft ‘will not be heard to raise nice and delicate questions as to the title of the article stolen.’ [Cit.]” Holbrook v. State, 209 Ga. App. 301, 303 (2) (433 SE2d 616) (1993). “Thus, the ownership of personal property, in an indictment for [armed robbery], may be laid in a bailee having possession of the property when it was stolen. . . .” (Citations and punctuation omitted.) Jones v. State, 156 Ga. App. 646 (276 SE2d 50) (1980). The indictment was sufficient as a matter of law, id., and the trial court should not have allowed Abrams to imply otherwise to the jury. Accordingly, the trial court correctly prohibited this argument. See Robinson v. State, 215 Ga. App. 125 (3) (449 SE2d 679) (1994). Thus, this enumeration is without merit.

3. In his final enumeration of error, Abrams argues that the evidence was insufficient to authorize the verdict. “ ‘On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine . . . witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses . . . [are] a matter of credibility for the jury to resolve.’ ” Porter v. State, 224 Ga. App. 276, 279 (2) (480 SE2d 291) (1997). Consequently, “[t]he evidence is sufficient as a matter of law if, when viewed in the light most favorable to the verdict, a rational trier of fact could find all the essential elements of the crimes. [Cit.]” Gable v. State, 222 Ga. App. 768, 769 (1) (476 SE2d 66) (1996).

In this case, Abrams testified to every essential element of the offenses of armed robbery and possession of a firearm during the commission of a crime. See OCGA §§ 16-8-41 and 16-11-106. Abrams told the jury that he was at John’s Party Center where he had a gun, he raised the gun and demanded Hardin’s money from him, and then left with that money. Furthermore, the testimony offered by the State’s witnesses corroborated Abrams’ testimony that he went to John’s Party Center and took money from Hardin at gunpoint. Although Abrams further claimed that another man forced him to do those things, no other witness testified to seeing a second man in the store. “Thus, the jury was faced with a conflict in the evidence. ‘The jury resolved this conflict in favor of the State, and this Court will not substitute its judgment as to witness credibility for that of the jury.’ [Cit.]” Porter v. State, supra at 279. We therefore conclude that the evidence, construed in a light most favorable to support the verdict, was sufficient to authorize a rational trier of fact to find Abrams guilty beyond a reasonable doubt of both offenses. See Jackson v. Virginia, supra.

Decided November 4, 1997.

Stanley C. House, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


author: Eldridge, Judge.

text:
    A97A2540.
    SYKES v. SIN et al.
    (493 SE2d 571)
   Eldridge, Judge.

Plaintiff, Thomas B. Sykes, filed suit against defendants, Nin Sin and Chann Song, seeking recovery for property damage to his 1986 Jaguar XJ6, which arose from an automobile collision on February 7, 1996, occurring at the intersection of Church Street and Georgia Highway 85 in Clayton County. A jury trial was conducted in the State Court of Clayton County on February 24, 1997. At the close of the plaintiff’s case, the trial court granted a partial directed verdict in favor of the defendants, finding that the plaintiff failed to prove the value of his automobile after the collision and held that the plaintiff would, therefore, be precluded from proving his damages by showing the difference between the fair market value of the automobile immediately prior to the collision and the fair market value of the automobile immediately afterwards. The case was submitted to the jury with the plaintiff’s proof of damages limited to evidence of cost of repairs, loss of use or hire, and diminution of value. The jury returned a verdict in favor of the plaintiff, but awarded no damages.

The plaintiff filed a motion for new trial on the grounds of: (1) the verdict was contrary to the evidence and (2) the verdict was strongly against the evidence. The trial court denied plaintiff’s motion for new trial. It is from this order that the plaintiff appeals.

1. In his first enumeration of error, the plaintiff alleges that the trial court erred by granting a partial directed verdict that the plaintiff had failed to prove the immediate after-collision fair market value of his automobile.

Recovery for property damage to an automobile is an item of special damages. “Special damages are those which actually flow from a tortious act; they must be proved in order to be recovered.” OCGA § 51-12-2 (b). “When [a] plaintiff seeks recovery for damages to an automobile, he may claim the reasonable value of repairs made necessary by the [collision], together with hire on the vehicle while rendered incapable of use, and the value of any permanent impairment, provided the aggregate amount of these items does not exceed the [fair market] value of the automobile before the injury. In the alternative, plaintiff may prove the difference in [fair market] value of the property before the injury and afterwards.” (Citations and punctuation omitted; emphasis supplied.) Archer v. Monroe, 165 Ga. App. 724, 726 (302 SE2d 583) (1983).

In proving damage to an automobile, “[t]he owner of property is considered to be qualified to state his opinion as to [the fair market] value. [Lay] [o]pinion evidence as to the value of an item, in order to have probative value, must be based upon a foundation that the witness has some knowledge, experience or familiarity with the value of the property or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion.” (Citations and punctuation omitted.) Dixon v. Williams, 177 Ga. App. 702, 704 (340 SE2d 286) (1986). “The testimony of the owner of property as to his opinion of the value of the property, without giving his reasons therefor, is inadmissible in evidence as it has no probative value[,]” because the jury has no way to judge the weight and credibility of the lay opinion without the foundation. (Citations omitted.) Holbrook v. State, 168 Ga. App. 380 (308 SE2d 869) (1983).

In this case, the sole testimony as to the value of the plaintiff’s automobile immediately after the accident was given by the plaintiff. The plaintiff described the damage to the automobile; when asked what he felt the value of the automobile was after the collision, the plaintiff testified, “[w]ell, that would be a difficult question to answer because I didn’t really have any estimates because I give [sic] no thought to selling it like it was. Of course, I’m sure at the time if I would have just called some junk yard to come out and get it, it wouldn’t have been worth very much, maybe a thousand dollars, probably, would have been all I’d get for it.” However, the plaintiff did not testify that he had priced the vehicle at various salvage yards to determine what the salvage value of the automobile was. In fact, the plaintiff gave no explanation whatsoever as to how he had arrived at the $1,000 figure. Therefore, the plaintiff failed to give a basis or foundation to show he had an opportunity to form an accurate opinion, and, as such, there was no probative evidence as to the fair market value of his automobile immediately after the collision.

In any event, even if the plaintiff had presented probative evidence as to the fair market value of the automobile immediately after the collision, the plaintiff had not proven the fair market value of his automobile immediately prior to the collision in order for the jury to make a determination as to the difference between the two figures. Testimony regarding the damage to an automobile alone is not sufficient to establish a foundation for an owner to base his opinion of the value of the automobile immediately before and immediately after the collision. In order for a proper foundation to be laid to show that a lay witness had an opportunity to form a correct opinion of the difference between the value of the automobile immediately prior to the collision and immediately afterwards, in addition to testimony describing the damage to the automobile, a lay witness would have to show other reasons to support his opinion, such as the purchase price, the manner in which he had maintained the automobile, and the overall condition of the automobile immediately before the collision, the actual cost of repairs or actual salvage value, or other relevant evidence to provide the jury with some guidance as to the value and the extent of the loss. See Crowe v. Harrell, 122 Ga. App. 7 (176 SE2d 190) (1970). The sole testimony as to the fair market value of the automobile immediately prior to the collision was given by the plaintiff.

In establishing the fair market value of his automobile prior to the collision, the plaintiff initially attempted to establish the purchase price. The plaintiff stated that his son located the automobile in 1990 or 1991. The plaintiff went on to testify that his son did not pay any money for the car, but that the plaintiff traded a 1974 Cadillac Fleetwood and a 1979 BMW 735 plus $3,000 cash for the automobile. However, he tendered no evidence as to the value of either the 1974 Cadillac or the 1979 BMW at the time they were traded. Plaintiff also testified that after the automobile was purchased, he had it repainted. However, while the plaintiff stated he thought the paint job was worth about $1,000, he never paid any money for the paint job or gave any explanation as to how he arrived at this figure. Therefore, the plaintiff’s attempt at establishing that he initially paid $15,000 for the automobile failed.

The plaintiff also attempted to establish the fair market value of the automobile immediately prior to the collision by testifying that prior to the accident he checked the want ads in the newspaper on a monthly basis and talked with other “people who had another car in that area” to determine for what price cars of the same model and type were selling. The plaintiff opined that, based on the information he received, his automobile had a fair market value of $9,000 to $10,000 immediately prior to the collision. However, he did not testify that the condition of his automobile, i.e., the way it was maintained, the mileage, the condition of the interior and exterior, accessories, and the general mechanical condition, was comparable to the automobiles other people had or the automobiles he found in the newspaper want ads on which he had based his opinion. Therefore, the plaintiff failed to lay a proper foundation to show that he had an opportunity to form a correct opinion, and such testimony was not probative evidence to prove the fair market value of his automobile immediately prior to the collision.

Therefore, under the evidence presented, the trial court did not err in granting the partial directed verdict. In fact, the trial court erred in letting the issue of special damages go to the jury at all, because such damages, in aggregate, cannot exceed the fair market value of the automobile prior to the collision and place the plaintiff in a position superior to that which he previously held. Thus, absent proof of the fair market value immediately prior to the collision, any other special damages cannot be calculated as coming within the maximum limit on recovery. Archer v. Monroe, supra at 726.

2. The plaintiff further alleges that the trial court erred by denying the plaintiff the right to open and conclude closing arguments.

Even though OCGA § 9-10-186 gives a plaintiff the right to opening and concluding closing arguments, except when the defendant introduces no evidence, it is incumbent on counsel for the plaintiff to assert her right to make the last argument at the trial level. At the close of the evidence, counsel for the plaintiff made her initial closing argument. At the end of her opposing counsel’s closing argument, the court inquired if the jury wanted to continue or be excused for the day. The jury elected to continue, and the trial judge began his charge. Counsel for the plaintiff did not object at this time, or at any other time during the remainder of the trial, that the plaintiff had been denied his right to conclude closing argument. Plaintiff’s counsel failed to demand the right to make her final closing argument.

“It is well established law that enumerations of error which raise questions for the first time on appeal present nothing for decision.” (Citations and punctuation omitted.) Rowe v. Fleet Mtg., 226 Ga. App. 593, 595 (487 SE2d 133) (1997). Therefore, this enumeration of error is without merit.

3. In his third enumeration of error, the plaintiff contends that the trial court erred by charging the jury not to consider the after-collision market value of the vehicle.

“In a civil case, an exception or objection to a charge must be made after the jury is charged and before the verdict[.] [Cits.]” Johnson v. Bruno’s, 219 Ga. App. 164, 166 (464 SE2d 259) (1995). The plaintiff failed to object to the charge at trial. Moreover, after examining the court’s charge, we do not find that it establishes substantial error within the meaning of OCGA § 5-5-24 (c), which would warrant this Court’s review regardless of whether objection was made at trial level or not. Thus, this enumeration of error is without merit. Further, the plaintiff failed to lay a predicate for such special damages as shown by Division 1.

4. In his final enumeration of error, plaintiff alleges that the trial court erred by not granting plaintiff’s motion for a new trial because the verdict was contrary to the law and strongly against the weight of the evidence.

“The appellate court will not disturb the trial court’s refusal to grant a new trial if there is any evidence at all to support the verdict, however slight, and regardless of what may be the character of the witnesses. Our function is to review the sufficiency of the evidence, and not to determine its weight. Though the evidence might have authorized a different verdict or the verdict is supported by only slight evidence or the evidence is conflicting or preponderates against the verdict[,] where no material error of law appears, this court will not disturb the trial judge’s judgment in overruling the motion for new trial.” (Citations and punctuation omitted.) Haynes v. McCambry, 203 Ga. App. 464, 465 (416 SE2d 893) (1992). “The question of damages is ordinarily for the jury; and the court should not interfere with the jury’s verdict unless the damages awarded are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case. OCGA § 51-12-12. The general rule on appeal of an award of damages is that a jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to ‘shock the conscience.’ ” (Citations and punctuation omitted.) Turpin v. Worley, 206 Ga. App. 341, 342-343 (425 SE2d 895) (1992).

As set forth in Division 3, the trial court’s charge on property damages was a correct statement of the law under the facts and circumstances of this case. This Court has already held in Division 1 that the plaintiff failed to prove the fair market value of the automobile immediately prior to the collision and immediately afterwards. Since the aggregate amount of the reasonable value of repairs made necessary by the collision, together with hire on the vehicle while rendered incapable of use, and the value of any permanent impairment, cannot exceed the fair market value of the automobile immediately prior to the collision, there was no basis for the jury to determine if the damages alleged by the plaintiff were excessive.

Decided November 4, 1997.

George C. Creal, Jr., for appellant.

Sharon W. Ware & Associates, Darren W. Penn, Paul L. Groth, for appellees.

Furthermore, even if the plaintiff had proven the fair market value of the automobile immediately prior to the collision, the plaintiff failed to prove through probative evidence the cost of repairs, loss of use of the vehicle, and the value of any permanent impairment. Even though the plaintiff testified that in his opinion the cost of repairs was about $8,000, he did not establish a foundation for his opinion, and, therefore, such evidence was not probative. The only evidence before the jury concerning the repair work was the plaintiff’s testimony that the repairs to his automobile were done by his son’s friend in Tennessee and that, even though he had received a bill, he had never paid any money for the repairs. Plaintiff presented no evidence by a qualified mechanic or repairman regarding the value of any repairs to his automobile. Further, the plaintiff presented no evidence of the loss of use of his automobile and no evidence of the diminution of the value of his automobile.

Therefore, the jury’s determination that the plaintiff had failed to prove any damages was proper under the evidence.

Judgment affirmed.

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

       Plaintiff also failed to raise this issue in his motion for new trial. If it had been raised at this point, the trial court could have, in the exercise of his sound legal discretion, granted plaintiff a new trial.

       Upon examination of the charge of which the plaintiff complains, this Court finds that, under the facts and circumstances of this case, such charge is a correct statement of the law as given.