author: Andrews, Presiding Judge. SMITH, Presiding Judge,

text:
    A01A2290.
    In the Interest of J. W. K., a child.
    (563 SE2d 514)
   Andrews, Presiding Judge.

The mother of J. W. K. appeals from an order of the juvenile court finding her nine-year-old child was deprived and awarding temporary legal custody of the child to the child’s paternal aunt and uncle for a period of two years. The mother claims the juvenile court lacked jurisdiction and that the disposition portion of the order awarding custody of the child failed to comply with statutory requirements for efforts to reunify her with the child. Although we find the juvenile court properly exercised jurisdiction, we conclude that the disposition portion of the court’s order failed to comply with the requirements of OCGA § 15-11-58 regarding efforts, if appropriate, to reunify the mother and child. Accordingly, we affirm the portion of the order finding the child was deprived, reverse the disposition portion of the order, and remand the case to the juvenile court for consideration of the requirements of § 15-11-58 in the disposition of the child.

1. The mother first challenges the jurisdiction of the juvenile court, asserting that this is in reality a custody dispute and therefore should have been brought in the superior court. This contention is without merit.

The juvenile court has exclusive original jurisdiction over juvenile matters and is the sole court in which to initiate an action concerning any child who is alleged to be deprived. [OCGA § 15-11-28 (a) (1) (C).] The definition of a deprived child, as contained in OCGA § 15-11-2 (-8), focuses upon the needs of the child regardless of parental fault. The petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue. If the child is found to be deprived, the juvenile court is authorized under [OCGA § 15-11-55 (a)] to impose alternative orders of disposition best suited to the protection and physical, mental and moral welfare of the child. Although the determination of where the child will be placed is necessary to such disposition, the proceeding itself is to determine whether the child is deprived and is not an action brought to decide custody matters.

(Citations, punctuation, footnote and emphasis omitted.) In the Interest of J. P., 267 Ga. 492 (480 SE2d 8) (1997).

In the case of a deprivation petition brought by relatives against the parent, we examine the petition with particular care to ensure that it is not “a transparent attempt to use the juvenile court system to seek custody of the child.” (Citation and punctuation omitted.) In the Interest of K. R. S., 253 Ga. App. 678, 680 (1) (560 SE2d 292) (2002). Here, the petition brought by the child’s paternal aunt and uncle (the petitioners) alleges that the mother abandoned the child to the custody of the petitioners for a period of seven years while failing to pay child support, that the mother has no stable home or residence and is unable to care for the child, and that the mother’s live-in companion has threatened physical harm to the child. This was a valid deprivation petition, see OCGA § 15-11-2 (8) (C) (abandonment ground for finding deprivation), and properly within the jurisdiction of the juvenile court.

The mother’s reliance upon In the Interest of B. C. P., 229 Ga. App. 111, 112-114 (1) (493 SE2d 258) (1997), is misplaced. In that decision, we found lack of jurisdiction in the juvenile court because the petitioner alleging deprivation had been appointed the legal guardian of the child. As the petitioner “had assumed the status and obligations of a parent by way of the guardianship, she [stood] in loco parentis.” (Citation and punctuation omitted.) Id. at 113 (1). The petitioner accordingly had an equal obligation to provide for the child, and the child, therefore, was not “deprived” within the meaning of the Code. Id. at 113-114. Here, in contrast, no legal guardianship exists, and B. C. P. is therefore inapplicable.

2. The mother also contends the juvenile court erred by refusing to comply with the requirements of OCGA § 15-11-58 regarding efforts to reunify her with the child.

This case was initiated by the child’s paternal aunt and uncle who filed a petition in the juvenile court on February 24, 2000, alleging that the nine-year-old child was deprived and seeking temporary legal custody of the child. The petition was filed nine days after the death of the child’s father, the brother of the petitioning aunt. After a hearing on February 28, 2000, at which no formal evidence was presented, the juvenile court entered a “Temporary Order” on March 24, 2000, finding the child was deprived. In that order, the court further held, “balancing the protection of the child’s physical, mental, moral, educational and health needs against a need to reunify the child with his mother, if possible, that temporary legal custody should be placed in [the petitioners] subject to specified visitation rights in [the mother]Thereafter the order sets forth the mother’s visitation rights and child support obligations as agreed to by the parties and states that the order shall be reviewed by the court on May 26, 2000.

The court conducted a review of its March order in a hearing held on July 7, 2000, during which evidence was presented. After the hearing, the court entered an order on September 13, 2000, in which it restated the previous finding that the child was deprived and set forth terms of disposition for the deprived child. In concluding the child was deprived, the court found the child had been living with the petitioners with the mother’s consent since he was about two years old and that the mother’s contacts with the child during the last four years consisted of visits about once a month and on occasions like Christmas and birthdays. In the disposition portion of the order, the court awarded temporary legal custody of the child to the petitioners for a period of two years and essentially concluded that, based on the evidence presented at the hearing, it was not in the child’s best interest for the court to require the petitioners or the child to make any effort to facilitate reunification of the child with the mother. There was evidence that the child was afraid of the mother’s boyfriend, and the child’s school counselor (a licensed professional counselor) testified for the petitioners that, based on counseling sessions she had with the child at school, it was her opinion that attempts to reunify the child with the mother were not in the child’s best interest.

In addressing the mother’s contention that the court was required to consider efforts to reunify her with the child, the court held that, although Title 15 of the Georgia Code required the courts and the Department of Family & Children Services (DFACS) to make reunification efforts or develop plans for permanent placement of a deprived child, “nothing in this Code requires case plans, reviews, special findings or goals for deprived children who are not under the government’s care.” The court reasoned that, since this was a “private” deprivation petition and not one brought by DFACS, it was “not inclined to inflict such a bureaucratic morass upon every private case which comes to court without regard to the child’s best interest.” The court held that “the court declines to require [the petitioners] or [the child] to facilitate reunification.” Nevertheless, the court did not conclude that reunification was not possible, holding that “[i]f it should appear that [the child] is no longer deprived, the Court can consider a return of custody.” The court struck the visitation privileges granted to the mother in the temporary order and held that the petitioners “may allow visitation between [the child] and his mother under the terms and conditions that they determine are in [the child’s] best interest, and at such times and locations as they decide.”

OCGA § 15-11-58 sets forth requirements for court orders which temporarily remove a deprived child from the child’s home and implements a process of review for determining whether reunification of the child and parent or permanent placement of the child is appropriate. Subsection (a) of § 15-11-58 provides as follows:

(a) A court’s order removing a child from the child’s home shall be based upon a finding by that court that continuation in the home would be contrary to the welfare of the child. The court shall also determine as a finding of fact whether reasonable efforts were made by the Division of Family and Children Services of the Department of Human Resources and any other appropriate agencies to preserve and reunify families prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from that child’s home, and to make it possible for the child to return safely to the child’s home. Such findings shall also be made at every subsequent review of the court’s order under this chapter. (1) In determining reasonable efforts to be made with respect to a child, as described in this subsection, and in making such reasonable efforts, the child’s health and safety shall be the paramount concern; (2) Except as provided in paragraph (4) of this subsection, reasonable efforts shall be made to preserve and reunify families: (A) Prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child’s home; and (B) To make it possible for a child to return safely to the child’s home; (3) If continuation of reasonable efforts of the type described in paragraph (2) of this subsection is determined to be inconsistent with the permanency plan for the child, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child; (4) Reasonable efforts of the type described in paragraph (2) of this subsection shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that: (A) The parent has subjected the child to aggravated circumstances which may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse; (B) The parent has: (i) Committed murder of another child of the parent; (ii) Committed voluntary manslaughter of another child of the parent; (iii) Aided or abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of another child of the parent; or (iv) Committed a felony assault that results in serious bodily injury to the child or another child of the parent; or (C) The parental rights of the parent to a sibling have been terminated involuntarily; (5) If reasonable efforts of the type described in paragraph (2) of this subsection are not made with respect to a child as a result of a determination made by a court of competent jurisdiction in accordance with paragraph (4) of this subsection:' (A) A permanency hearing shall be held for the child within 30 days after such determination; and (B) Reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child; and (6) Reasonable efforts to place a child for adoption or with a legal guardian may be made concurrently with reasonable efforts of the type described in paragraph (2) of this subsection.

Contrary to the court’s disposition order in this case, there is nothing in the language of OCGA § 15-11-58 (a) or in subsequent subsections (b) through (q) of the statute that limits it to deprivation petitions brought by DFACS or that excludes deprivation petitions brought by individuals. For example, subsection (b) of the statute requires that, within 30 days of the court’s award of temporary custody, DFACS shall prepare a report for consideration by the court which either provides a plan and goals for reunification services or states why reunification is not appropriate. An evaluation by DFACS of the need for reunification services and the need for DFACS resources to implement a reunification plan, if adopted by the court, is just as critical whether a court awards temporary legal custody of a deprived child to DFACS, to another public agency or private organization, or to an individual. Under § 15-11-58, DFACS efforts toward reunification or permanent placement are required in all cases in which the government, acting through a court, takes legal custody of a deprived child from the child’s parents and awards temporary legal custody to other individuals or entities entitled to such custody under OCGA § 15-11-55.

Contrary to the position taken by the dissent, the language of OCGA § 15-11-58 (a) stating that the section applies to “[a] court’s order removing a child from the child’s home” based upon a finding that “continuation in the home would be contrary to the welfare of the child” does not exclude the present case from the requirements of the statute. Even though the court’s order awarding custody did not result in the child being physically removed from the petitioners’ home, when referring to the deprived child’s home, the statute does not mean the child’s current physical residence, but the home of the child’s legal custodian. Here, the child’s home within the meaning of the statute was not where the child resided with the petitioners, but the home of the child’s mother who had legal custody and the right to take the child from the petitioners at any time. In fact, the very reason the petitioners sought a court order for temporary legal custody was because the child’s legal home was with his mother. Accordingly, there was a court order removing the child from the child’s home within the meaning of § 15-11-58 (a).

Under OCGA § 15-11-58 (a), the juvenile court was required to

determine as a finding of fact whether reasonable efforts were made by the Division of Family and Children Services of the Department of Human Resources and any other appropriate agencies to preserve and reunify families prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from that child’s home, and to make it possible for the child to return safely to the child’s home.

The court made no such finding in the disposition portion of its order. Subsection (a) (2) of § 15-11-58 also requires that “reasonable efforts shall be made to preserve and reunify families . . . [p]rior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child’s home; and . . . [t] o make it possible for a child to return safely to the child’s home.” These efforts are not required if the court finds that the parents have abandoned the child or have engaged in other abusive or criminal misconduct as set forth in § 15-11-58 (a) (4). However, the juvenile court made no finding in this case that the mother had abandoned the child or engaged in any such misconduct. Nevertheless, the court’s disposition order giving temporary legal custody of the child to the petitioners for two years refuses to require any efforts to reunify the mother with the child during that time and gives the petitioners total discretion over whether the mother will be allowed to have any contact with the child. Although the court’s order leaves open the possibility of reunification by stating that “[i]f it should appear that [the child] is no longer deprived, the Court can consider a return of custody,” it renders this possibility highly unlikely by leaving the mother without any right to have contact with the child. This is precisely the kind of case where, under the provisions of § 15-11-58, the professional resources of DFACS are needed to help determine if reunification is appropriate and, if so, to propose a reunification plan to the court.

The disposition portion of the juvenile court’s order giving temporary legal custody of the child to the petitioners failed to comply with the requirements of OCGA § 15-11-58 because it did not contain necessary findings about reasonable efforts by DFACS or any other appropriate agencies to reunify the mother with the child and foreclosed any consideration of a DFACS plan to provide reunification services. In the Interest of W.P.H., 249 Ga. App. 890 (549 SE2d 513) (2001). Accordingly, the disposition portion of the order is reversed and the case remanded for consideration of these requirements in the disposition of the child. Id.

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

Blackburn, C. J., Ruffin, Eldridge, Miller, Ellington and Phipps, JJ., concur. Pope, P. J., Johnson, P. J., Smith, P. J., Barnes and Mikell, JJ., concur in part and dissent in part.

SMITH, Presiding Judge,

concurring in part and dissenting in part.

While I concur in Division 1 of the majority, I respectfully dissent as to Division 2. This is an unusual and anomalous case that should not be forced into the mold of the typical deprivation case under the auspices of the Department of Family and Children Services. To apply the provisions of OCGA § 15-11-58 (a) for the first time at this late date will require a remand for full investigation, reunification efforts by DFACS in addition to those already undertaken by the juvenile court, reports by DFACS personnel, and additional hearings by the juvenile court. This unwieldy process runs exactly counter to the public policy of this court to expedite the determination of child custody cases, particularly since the child is already ten years old and fully understands and is harmed by continuing uncertainty regarding his future.

OCGA § 15-11-58 (a) provides:

A court’s order removing a child from the child’s home shall be based upon a finding by that court that continuation in the home would be contrary to the welfare of the child. The court shall also determine as a finding of fact whether reasonable efforts were made by the Division of Family and Children Services of the Department of Human Resources [(DFACS)] and any other appropriate agencies to preserve and reunify families prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from that child’s home, and to make it possible for the child to return safely to the child’s home. Such findings shall also be made at every subsequent review of the court’s order under this chapter.

This Code section contains 17 subsections providing in detail the efforts which DFACS must undertake to attempt reunification, in-eluding extensive case plans and reports to be made to the court and the judicial citizens review panel, if applicable.

This issue was extensively discussed by the parties at the hearing and addressed by the juvenile court in the order appealed from. Specifically, the juvenile court noted that this is a private petition for deprivation rather than one brought by a government child protective agency. The juvenile court determined that OCGA § 15-11-58 is “designed to pass due process muster when there is government intervention into custody matters,” but that “nothing in this Code requires case plans, reviews, special findings or goals for deprived children who are not under the government’s care.”

Most importantly, this Code section by its terms applies only when a court has entered an order “removing a child from the child’s home.” OCGA § 15-11-58 (a). The only home this now ten-year-old child has known since the age of two is that which he currently occupies. The mother began leaving J. W. K. with the paternal aunt when he was between the ages of one and two. When he was “[n]o more than two,” she left him with the aunt “pretty much full-time.” The mother was hospitalized for a drug problem and then lived with the aunt for six to eight weeks before moving in with her boyfriend and leaving J. W. K. behind. She visited the child only sporadically; the aunt testified that the mother had seen the child more in the four months between the two juvenile court hearings than “in the whole seven years I’ve had him put together.” There was no court-ordered removal either in the temporary order or in the order appealed from. As the juvenile court correctly pointed out, J. W K. was not placed in the aunt’s home by any action of a state agency, but “by this family with no court intervention.”

It is apparent from a reading of OCGA § 15-11-58 that it contemplates at every turn the involvement of DFACS in the investigation of the deprivation petition, in the filing of a case plan, and in the presentation of regular, detailed reports to the court and the judicial citizens review panel. The Code section consistently refers to the placement of a child in foster care under the auspices of DFACS. See, e.g., OCGA § 15-11-58 (c) (1) (referring to placement in foster care); (c) (3) (describing actions to be taken by DFACS in order for child to be returned home); (k) (ordering placement of deprived child in foster care under the supervision of DFACS). Such is not the case here, as the record contains no indication of the involvement of DFACS in any aspect of this matter.

In addition, the juvenile court recognized that orders bearing a “strong resemblance” to DFACS case plans are often employed by the courts when ruling on petitions made by persons other than a government child protective agency, when that is in the best interest of the child. In this case, the court did, in fact, consider the issues addressed by OCGA § 15-11-58, but rejected the. imposition of a case plan or further reunification efforts as not in the best interest of the child. The evidence presented at the hearing supports that decision.

The temporary order explicitly provided for visitation and efforts at reunification. These efforts did not go well. J. W. K. was afraid of the mother’s live-in boyfriend, the father of her other child, described by the juvenile court as “a local criminal of some renown,” with multiple convictions for burglaries, sexual assaults, alcohol, drug, and DUI offenses, “and misdemeanors too numerous to mention herein.” Evidence was presented that the boyfriend drank and fought with the mother in the child’s presence and that “they were forced to get out of a car on the side of the road and walk to someone’s house. He was afraid for his physical safety.” The mother defended her boyfriend, stating that “you shouldn’t judge a person by his past.”

The licensed professional counselor who examined J. W. K. recommended strongly against attempts to reunify J. W. K. with the mother, and she opined that “there’s not enough therapy out there to take a 9-year-old child and place him in a new home and try to have him form new attachment relationships with other adults in a forced situation.” The counselor testified that the child felt “forced” to visit his mother and feared that she and her boyfriend would kidnap him. The child’s aunt testified that she had noticed negative changes in J. W. K.’s behavior after the court-ordered visitation. Finally, evidence was presented that the mother failed to abide by the provisions of the temporary order, including failing to follow the instructions for payment of child support and discussing custody and child support issues with J. W. K., in direct violation of the juvenile court’s explicit prohibition of such talk due to the risk of upsetting the child. In view of this evidence that court-ordered attempts at reunification were not only unsuccessful but placed the child in some danger, this court should not order still further attempts at reunification under the auspices of DFACS and place J. W. K. back into a situation already known to be harmful. In the Interest of A. S. H., 239 Ga. App. 565, 571 (1) (521 SE2d 604) (1999) (court not obligated to return children to parent and wait until they have actually been harmed).

Moreover, the juvenile court did not follow the guardian ad litem’s recommendation to employ the new provisions of OCGA § 15-11-58 (i) and grant extended custody until J. W. K.’s eighteenth birthday. Instead, it awarded temporary legal custody to the aunt and uncle for a period of two years. The court’s order specifically anticipates that the mother may remedy the problems leading to the finding of deprivation and may reapply to the court at that time. Although the majority contends this prevents the mother from pursuing reunification, this would not be the case if she were willing to sever her association with a notorious criminal and provide a safe environment for J. W. K. during his visits with her. The juvenile court properly considered her apparent unwillingness to do so during earlier attempts at reunification.

In the process of considering whether a child is deprived within the meaning of OCGA § 15-11-2 (8), and the disposition of the child under OCGA § 15-11-55, the juvenile court will necessarily address many of the issues contemplated by OCGA § 15-11-58, as the court in fact did here. A mechanical compliance with the provisions of OCGA § 15-11-58 should not be required in cases in which the Department of Family and Children Services is not involved and no court has ordered the child removed from its home.

For this reason, In the Interest of W. P. H., 249 Ga. App. 890, 892 (2) (549 SE2d 513) (2001), should be disapproved to the extent that it requires DFACS to participate in á custody case in such unusual circumstances. In W. P. H., we held that a finding of whether reasonable reunification efforts were made by DFACS “and any other appropriate agencies” is required by OCGA § 15-11-58 (a) whenever a disposition order is entered “transferring temporary legal custody.” Id. at 892 (2). The text of the Code section, as noted above, actually requires such a finding of fact, not in an order transferring custody, but in an order “removing a child from the child’s home.” OCGA § 15-11-58 (a). It is not clear from the text of the opinion in W. P. H. whether DFACS had any previous involvement in the investigation of the deprivation petition. Here, it is plain that DFACS had no such involvement, and remand for the purpose of such a finding of fact would be meaningless and futile. The record reflects that the child’s interests were protected by a guardian ad litem, who investigated the case on behalf of the child, made recommendations to the court, and participated in the hearing. It does not appear that the juvenile court in W. P. H. had entered a previous custody order providing for attempts at reunification or that any evidence was presented or findings made that those attempts had been harmful and not in the best interest of the child, as was done here.

The juvenile court and J. W. K.’s guardian ad litem have already completed the process which DFACS would have to duplicate from its inception, following the numerous complex mandates of the statute. To involve DFACS in this litigation at this point is unnecessary, time-consuming, duplicative, and wasteful of the limited resources of the State that would be better spent in caring for children whose circumstances have not been already fully investigated by two sets of private litigants represented by counsel, a guardian ad litem, and the juvenile court. Meanwhile, the ten-year-old child must suffer continued uncertainty regarding his future as a new DFACS investigation wends its way through the system.

Decided March 29, 2002

William, R. Thompson, Jr., for appellant.

James F. Ledbetter, Joseph D. Little, for appellee.

For these reasons, I respectfully dissent.

I am authorized to state that Presiding Judge Pope, Presiding Judge Johnson, Judge Barnes and Judge Mikell join in this opinion.

       The Code concerning juvenile proceedings was revised and renumbered in 2000. Ga. L. 2000, p. 20, § 1 et seq.

       The juvenile court’s ultimate finding that the child was not abandoned but “would be deprived if removed from [the aunt and uncle] and placed with [the mother]” appears to conflict with the Supreme Court of Georgia’s opinion in Lewis v. Winzenreid, 263 Ga. 459, 461-462 (435 SE2d 602) (1993), holding that an allegation of deprivation cannot be based upon the assertion that the child is not deprived but would be deprived if returned to the custody of the noncustodial parent. But we do not reach this issue because the parties are bound by the unappealed temporary custody order finding the child deprived. In the Interest of L. S. M., 236 Ga. App. 537, 538 (512 SE2d 397) (1999). The juvenile court also noted that a finding of deprivation was consented to by the parties. Finally, the mother did not enumerate this issue as error on appeal. “Matters not enumerated as error will not be considered on appeal.” (Citations and punctuation omitted.) Smith v. State, 224 Ga. App. 819, 821 (3) (481 SE2d 896) (1997).

       At the time of the hearing in July 2000, her boyfriend was again in jail for 120 days, on charges involving drugs and driving without a license and insurance.


source: Caselaw Access Project

author: Andrews, Presiding Judge. Eldridge, Judge,

license: Public Domain

text:
    A01A2313.
    LAWRENCE v. DIRECT MORTGAGE LENDERS CORPORATION.
    (563 SE2d 533)
   Andrews, Presiding Judge.

Direct Mortgage Lenders Corporation sued Rodney Lawrence alleging that he breached an agreement to lease a trailer, converted the trailer to his own use, and wrongfully obtained title to a truck from Direct Mortgage by presenting a bad check for the purchase price. After a bench trial, the trial court entered a judgment in favor of Direct Mortgage and against Lawrence in the amount of $1,500 as past due rent on the trailer claim; $30,750 on the truck claim; $1,800 in attorney fees pursuant to OCGA § 9-15-14 (b); and $50,000 in punitive damages.

On appeal Lawrence claims the trial court erred: (1) by refusing to continue the trial to permit him to conduct discovery; (2) by erroneously admitting parol evidence; (3) by awarding punitive damages; and (4) by awarding attorney fees. For the reasons set forth below, the judgment should be affirmed except for the award of attorney fees.

1. The trial court did not abuse its discretion by refusing to continue the trial to allow Lawrence to commence discovery.

Direct Mortgage filed its complaint on November 16, 2000, and Lawrence (represented by defense counsel) filed an answer and counterclaim on November 21, 2000. On January 9, 2001, Lawrence’s defense counsel filed a motion to withdraw as attorney of record on the basis that Lawrence had failed to pay attorney fees. The trial court granted the motion and allowed defense counsel to withdraw on January 25, 2001. On January 17, 2001, before defense counsel withdrew, Direct Mortgage served defense counsel with an amendment to the complaint adding the truck claim. The case was subsequently placed on the trial calendar for trial on February 26, 2001. When the case was called for trial on February 26, Lawrence appeared represented by new defense counsel who told the court that he had met with Lawrence and reviewed the file for the first time ón February 25. Defense counsel made an oral motion that the trial court continue the case so Lawrence could commence discovery in the case and argued that Lawrence had a right to conduct discovery within six months after filing his answer on November 21, 2000, pursuant to Uniform Superior Court Rule (USCR) 5.1 (as applicable in the state courts). The trial court denied the motion to continue the case for this purpose. It ruled that Lawrence had failed to diligently pursue any discovery, even after receiving notice of the trial date, and that the mobile nature of the assets at issue demanded a prompt trial.

Lawrence also objected to trying the claim raised in the amendment to the complaint on the basis that the amendment was not located in the court’s file prior to the call of the case. The record shows that the filed amendment had been misplaced by the trial court clerk, and the trial court allowed a copy of the amendment to be filed on the day of the trial to complete the record. Lawrence raised no objection in the trial court, and makes no claim in this appeal, that he did not receive proper notice of the amendment to the complaint. The record shows that Lawrence’s first defense counsel was served with the amendment over a month prior to the trial date, and subsequent defense counsel who appeared for Lawrence at the call of the case indicated that he had reviewed the file and was aware of the amendment.

Contrary to Lawrence’s argument, USCR 5.1 did not give him a right to conduct discovery for a six-month period of time after he filed his answer. Rule 5.1 provides that:

In order for a party to utilize the court’s compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay and within six months after the filing of the answer. At any time, the court, in its discretion, may extend, reopen or shorten the time to utilize the court’s compulsory process to compel discovery.

This rule does not require that Lawrence be given six months in which to complete discovery. Alexander v. Macon-Bibb County Urban Dev. Auth. &c., 257 Ga. 181, 184 (357 SE2d 62) (1987); Walton v. Datry, 185 Ga. App. 88, 90 (363 SE2d 295) (1987). Rather, the time for conducting discovery rests in the sound discretion of the trial court. “A trial court has wide discretion to shorten, extend, or reopen the time for discovery, and its decision will not be reversed unless a clear abuse of that discretion is shown.” Woelper v. Piedmont Cotton Mills, 266 Ga. 472, 473 (1) (467 SE2d 517) (1996); Ambassador College v. Goetzke, 244 Ga. 322, 323 (260 SE2d 27) (1979).

In the present case, Lawrence made no effort to conduct discovery after he filed his answer on November 21, 2000, or after the amendment to the complaint was served, or after he was notified that the case had been placed on the court’s trial calendar. The first defense counsel withdrew because Lawrence failed to pay him, and Lawrence did not obtain and meet with his new defense counsel until the day before the case was set for trial. Given Lawrence’s complete lack of diligence in failing to conduct any discovery prior to the trial date, we find the trial court did not abuse its discretion by denying the motion made at the start of the trial to continue the case so discovery could be commenced. Woelper, 266 Ga. at 473.

2. Lawrence waived his claim that the trial court erroneously admitted parol evidence by failing to make any objection when the evidence was introduced. Golden Peanut Co. v. Bass, 249 Ga. App. 224, 239 (547 SE2d 637) (2001).

3. There was evidence supporting the award of punitive damages, and the amount awarded was not excessive.

The original complaint included an allegation that Lawrence converted a trailer owned by Direct Mortgage and sought punitive damages for the conversion. In an amendment to the complaint, Direct Mortgage alleged that Lawrence purchased and obtained title to a truck from Direct Mortgage by presenting a bad check in the amount of $30,750. The amendment sought to recover $30,750 from Lawrence but did not allege a conversion or pray for punitive damages. In the judgment in favor of Direct Mortgage, the trial court made findings with respect to Lawrence’s conduct on the trailer claim and the truck claim. The court found that “Defendant’s actions constituted wilful conversion” and awarded $50,000 in punitive damages. Although the judgment did not specify whether the conduct justifying the award of punitive damages related to the trailer claim or the truck claim, the trial court made clear in its oral pronouncement of judgment at the trial that it intended to award punitive damages solely on the conversion claim stated in the complaint which prayed for the award of those damages. When the written judgment is read in conjunction with the court’s oral pronouncement of judgment, it is clear that punitive damages were awarded based on the trial court’s finding that Lawrence converted and refused to return the trailer to Direct Mortgage after he stopped paying the rent due. In the Interest of L. H., 242 Ga. App. 659, 660 (530 SE2d 753) (2000).

The record shows that Lawrence came into possession of the trailer lawfully pursuant to his agreement to lease it from Direct Mortgage. Where a defendant lawfully acquires, possession of the property at issue, there is no conversion in the absence of proof that the owner made a demand for possession and that the defendant wrongfully refused to deliver possession. Brooks v. Fincher, 150 Ga. App. 201, 203 (257 SE2d 326) (1979). Direct Mortgage produced evidence showing that, after Lawrence failed to pay the rent due, it demanded that he return the trailer, that Lawrence refused to return the trailer despite several attempts by Direct Mortgage to take possession of it, and that Lawrence attempted to conceal the trailer and misrepresented the location of the trailer in an effort to frustrate repossession. Direct Mortgage eventually obtained possession of the trailer from Lawrence with the aid of the sheriff and an order from the trial court granting a writ of possession. Because there was “clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences,” the evidence was sufficient to support the award of punitive damages under OCGA § 51-12-5.1.

The trial court made a finding in compliance with OCGA § 51-12-5.1 (d) (1) that an award of punitive damages was justified, but it awarded $50,000 in punitive damages without complying with the procedural requirements of § 51-12-5.1 (d) (2) that it hold a bifurcated hearing to consider the amount of punitive damages to be awarded. Nevertheless, because no objection was raised to this deficiency in the trial court, the error was waived. Shaw v. Ruiz, 207 Ga. App. 299, 300 (428 SE2d 98) (1993); Wal-Mart Stores v. Forkner, 221 Ga. App. 209, 210 (471 SE2d 30) (1996).

Although the $50,000 in punitive damages awarded substantially exceeded the compensatory damages of $1,500 awarded on the trailer claim, the award was not excessive given the evidence of misconduct before the trial court. Punitive damages are not awarded based on the actual harm caused, but to punish reprehensible conduct and deter its occurrence in the future. Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. 759, 761-766 (386 SE2d 120) (1989). “Because deterrence is based on factors other than the actual harm caused, we have rejected the notion that punitive damages must necessarily bear some relationship to the actual damages awarded by the [court].” (Emphasis omitted.) Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. 613, 614 (1) (409 SE2d 501) (1991). The trial court did not abuse its discretion in awarding punitive damages in the amount of $50,000. Hosp. Auth. of Gwinnett County, 259 Ga. at 766; Moody v. Dykes, 269 Ga. 217, 221-222 (496 SE2d 907) (1998); Time Warner Entertainment Co. v. Six Flags Over Ga., 254 Ga. App. 598, 599 (2) (563 SE2d 178) (2002).

4. The trial court also awarded Direct Mortgage $1,800 in attorney fees pursuant to OCGA § 9-15-14 (b) based on the court’s finding that there was no substantial justification for Lawrence’s defense to the claim asserted in the amended complaint that he obtained title to the truck by presenting a bad check. Evidence was presented that Direct Mortgage incurred attorney fees in the amount of $1,800 for prosecution of the entire case. Although the trial court did not abuse its discretion in awarding attorney fees in some amount pursuant to § 9-15-14 (b) (Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (360 SE2d 566) (1987)), Direct Mortgage was only entitled to attorney fees attributable to the conduct that the trial court found justified the award. Accordingly, we reverse the attorney fees award and remand the case to the trial court for a hearing to allow Direct Mortgage to establish what portion of the $1,800 in attorney fees it expended on the entire case was attributable to the successful truck claim asserted in the amendment to the complaint. Duncan v. Cropsey, 210 Ga. App. 814, 815-816 (437 SE2d 787) (1993).

Judgment affirmed in part, reversed in part and case remanded with directions.

Johnson, R J, Ruffin, Miller and Ellington, JJ., concur. Eldridge and Phipps, JJ., dissent.

Eldridge, Judge,

dissenting.

I respectfully dissent, because the conduct of the trial judge was arbitrary and capricious, evidencing a prejudice against the defendant.

On November 16, 2000, Rodney Lawrence, defendant, was sued in the State Court of Gwinnett County by Direct Mortgage Lenders Corporation for breach of contract to purchase and conversion of a 1999 camper trailer. On November 17, 2000, Lawrence was personally served. On November 16, 2000, the trial court granted ex parte the plaintiff a prejudgment writ of possession of the property. On November 22, 2000, the Sheriff of Gwinnett County seized the trailer and gave it to the plaintiff’s agents. Defendant answered, alleging. that the transaction was not a real sale but a loan to avoid usury and that defendant’s title to the property was, in fact, given as security only.

On January 9, 2001, prior defense counsel made a written motion to withdraw for failure by the defendant to pay for services, and on January 25, 2001, the trial court allowed defense counsel to withdraw. Prior to the expiration of the period for discovery and while the defendant was unrepresented, the trial court had the case expeditiously calendared for a bench trial for February 26, 2001, only 71 days after answer and without a written order shortening the time for discovery and trial. From January 9, 2001, through February 24, 2001, the defendant was effectively unrepresented by counsel to conduct discovery on his behalf of complex legal and factual issues. The defendant orally moved for a continuance, which was denied.

At a bench trial on February 26, 2001, after the defendant objected to trial on the new claim for the truck, the trial court overruled this objection and ordered the clerk to file the courtesy copy of the amendment to plaintiff’s complaint when the clerk could not find evidence that the amendment had ever been filed of record with the trial court; thus, the trial court had plaintiff file the amendment to the complaint at trial to assert this new independent claim for $30,750 for the purchase of a truck and dishonor of the check. The amendment filed bore a certificate of service on the defendant dated January 17, 2001; however, this service was made on the first defense counsel, who the plaintiff was on notice on that date had a pending motion to withdraw and who was allowed to withdraw eight days later on January 25. The trial court had received a courtesy copy of the amendment from the plaintiff and allowed the plaintiff to go forward over objection of defense counsel even though this new claim constituted the majority of the consequential damages claimed and had not been filed of record until the objection was made as to its absence from the court records.

The trial court conducted the bench trial of the issues raised in the complaint and the tardily amended complaint, entering a judgment for $1,500 rent on the trailer; the new claim of $30,750 purchase price of the truck; $1,800 in attorney fees under OCGA § 9-15-14 (b) for lack of substantial justification for the defense of payment on the new claim; and punitive damages of $50,000, without making specific findings of fact as to the bad faith conduct under OCGA § 13-6-11, OCGA § 9-15-14 (b) lack of substantial justification on the new claim, or OCGA § 51-12-5.1 aggravated conduct for punitive damages.

Clearly, the trial court abused its discretion in placing the case on the trial calendar within the discovery period without sufficient justification and reasonable written notice to the parties, by denying the motion for continuance to complete discovery, by allowing the trial over objection of a new claim asserted by amendment at trial, by erring in its award of punitive damages, and by awarding attorney fees.

Uniform Superior Court Rule 5.1 provides that the parties have six months from the filing of the answer to complete discovery; however, “[a]t any time, the court, in its discretion, may . . . shorten the time to utilize the court’s compulsory process to compel discovery.” “[T]he court shall in all cases afford to the parties reasonable time for discovery procedures, subsequent to the date that defensive pleadings were required to be filed.” OCGA § 9-11-40 (a); Partain v. Mayor &c. of Royston, 246 Ga. 297, 298 (271 SE2d 201) (1980). This case raised complex factual issues as to the defense and showed conflict as to material fact as to plaintiff’s claims so that the need for discovery was manifest upon the face of the pleadings with the resulting harm apparent. See Baker v. Housing Auth. of Savannah, 152 Ga. App. 64, 66-67 (7) (262 SE2d 183) (1979) (the party must show that denial of discovery caused harm and would benefit the party). While the trial court has broad discretion to limit the time of discovery, arbitrary and capricious exercise of such discretion should be reversed as an abuse of discretion. Partain v. Mayor &c. of Royston, supra. Trial after only four months, 120 days, where a party is unrepresented during a substantial portion of this time, to complete discovery does not automatically constitute an abuse of discovery; however, trial after only seventy-one days without an adequate reason may constitute an abuse of discretion where there exists no valid justification for expedited trial. Defense counsel’s motion for continuance at the commencement of trial, coupled with the objection to trial of the new claim asserted under the amendment, should be read as a renewal of the motion for continuance or exclusion from trial of the independent new claim; such objections satisfy the mandatory requirements of OCGA § 9-10-158. See Wells v. Wells, 118 Ga. 812, 815 (2) (45 SE 669) (1903) (surprise by amendment is grounds for continuance); Hill v. Harris, 11 Ga. App. 358 (2) (75 SE 518) (1912) (surprise by an amendment requires counsel to state to the court how harmed). Further, allowing trial of a newly asserted claim without allowing discovery where such new claim comprised the majority of the consequential damages awarded in the judgment, and attorney fees were awarded for the defense of accord and satisfaction for such claim for lack of substantial justification, indicated that substantial discovery issues existed. See OCGA § 9-10-158; McFarland v. Hodge Homebuilders, 168 Ga. App. 733 (1) (309 SE2d 853) (1983) (denial of continuance to meet new amendment not error absent harm where the defendant prevailed on the amendment claim). It was within the sound discretion of the trial court to allow or to disallow the amendment to be tried or to grant or to deny a continuance on such grounds. Johnson v. Caldwell, 229 Ga. 548, 552-553 (192 SE2d 900) (1972). However, in this case, the trial court abused its discretion in allowing the new claim but denying the motion for continuance to complete discovery where it should have been obvious to the trial court from the record that the defendant had no knowledge of such new issue, because service of the amendment had been made upon his former counsel, while his motion to withdraw as counsel was pending. SurgiJet, Inc. v. Hicks, 236 Ga. App. 80, 82 (4) (511 SE2d 194) (1999); Hall v. Scott USA, Ltd., 198 Ga. App. 197, 201-202 (3) (400 SE2d 700) (1990) (a six-month continuance to complete discovery had already been granted). Further, under OCGA § 9-11-40 (b), the trial court by written order should give reasonable notice that the discovery period has been shortened and notice of imminent trial to the parties.

At trial, the trial court attempted to justify its exercise of discretion in shortening discovery and articulated reasons on the record just prior to trial when the defendant, through new counsel, renewed his oral motion for continuance, because discovery had not been completed. “This man went for three months [(from January 9 until January 24, counsel was seeking to withdraw and was putting in no additional work to perform discovery; from January 25 until February 24 the defendant was unrepresented)] without doing anything [paying his first attorney]. He’s acted at his own peril.” The reasons stated were: (1) “the first attorney that was retained by Mr. Lawrence filed a motion to withdraw because he was not paid. That gave me some pause for concern because for weeks [(January 25 to February 26)] after that, there was not another notice of appearance filed by another attorney.” However, the defendant had new counsel request a continuance at trial. Second,

[g]iven what was presented to me in the prejudgment writ of possession affidavit, given the mobile nature of the assets that allegedly [(the trial court granted immediate seizure)], according to the pleadings, belong to the plaintiff, I felt that it was incumbent upon me to expedite these proceedings to make sure that the plaintiff was not deprived of any assets which may or may not rightfully belong to it.

The record contains an affidavit in support of the writ of prejudgment possession that was granted and that “Defendant has in the past, during repossession attempts of the property, attempted to conceal the property and has misrepresented the location of said property. The property is a wheeled vehicle and is easily movable.” These statements are not facts but mere opinions and conclusions to influence the trial court and which fail to state facts mandated under OCGA § 9-11-56 (e) as to affidavits. McPherson v. McPherson, 238 Ga. 271 (232 SE2d 552) (1977) (codification of common-law requirements as to all affidavits); Dews v. Ratterree, 246 Ga. App. 324, 325-326 (540 SE2d 250) (2000) (opinions and conclusions in affidavit must be excluded because not admissible in evidence); Oglesby v. Farmers Mut. Exchange, 128 Ga. App. 387, 389 (5) (196 SE2d 674) (1973) (noncomplying affidavits must be disregarded by trial court).

I expedited that process [(no written order or notice)] when Mr. Lawrence, in my opinion, just didn’t take this seriously, number one, by not paying the attorney that first filed an entry of appearance and that I let withdraw, and number two, by not hiring another attorney expeditiously [(it took defendant 31 days)] so that an attorney could file an entry of appearance and get started in the discovery process.

However, defense counsel appeared before the trial court 32 days after the trial court granted leave to former counsel to withdraw.

At the call of the case, which had been filed only 101 days, the defendant had counsel who objected to trial being rushed without discovery and requested a continuance to do discovery on complex issues of the nature of transaction, i.e., a usurious loan disguised as a sale, resale and rental with option to purchase, conversion, and punitive damages. Thus, the first reason for the expedited trial had been satisfied by the defendant, i.e., new defense counsel. The second reason was that the assets could be moved; however, within six days of the filing of the suit and based upon the defective affidavit, the plaintiff had recovered possession of the recreational trailer by a prejudgment seizure conducted by the sheriff. The claim for recovery of the truck was asserted by amendment filed on the day of trial, although plaintiff claimed to have served the defendant’s former counsel 40 days prior to trial, according to the certificate of service upon the attorney the trial court had allowed to withdraw. But more importantly, the plaintiff felt safe enough regarding the truck that it delayed asserting its new claim for the truck until nearly three months after filing suit. The record reveals that the amendment was served on former counsel, which should have raised in the trial court’s mind the question of actual notice to the defendant and more importantly the opportunity to prepare a defense to the complex issues raised in the amendment, which was the largest portion of the actual damages awarded. Thus, it is highly questionable whether the defendant had actual notice of the amendment prior to trial. Where proper notice has been given, three weeks notice may be deemed adequate in the discretion of the trial court. Central Truckaway System v. Harrigan, 79 Ga. App. 117, 129 (8) (53 SE2d 186) (1949) (defendant upon a deposition taken for use in evidence three weeks prior to trial learned of the new injuries raised in the amendment during trial). However, in this case, the trial court made no inquiry as to actual notice and ordered the courtesy copy served on the court be filed without inquiry as to whether the defendant had actually received notice of the amendment. Plaintiffs amended claim for purchase of a truck from the defendant for $30,750 with a resale, rental, and right to repurchase by the defendant constitutes a very peculiar transaction, giving credence to the defendant’s contention that the sales and lease arrangement were shams to conceal usurious loans. Further, when the new, unprepared defense counsel sought to assert the defense of accord and satisfaction with inadequate evidence, the trial court imposed sanctions under OCGA § 9-15-14 (b) as made without substantial justification, evidence of which the trial court prevented by cutting short the discovery period.

In general, the statements of the trial judge evidenced a prejudice against the defendant for not paying his first counsel or quickly getting new counsel so that the trial court rushed the case to trial while the defendant was a pro se. The reasons given for the exercise of discretion to expedite trial fail to justify the expedited trial and constitute an abuse, because the reasons were without substance in reality; to cut short the normal discovery period, the trial court should do so by written order given prior to calendering the case; in the written order, the trial court should articulate the sound reasons for shortening the discovery period and expediting trial ahead of other older cases. OCGA § 9-11-40 (b). In this case, the trial court’s actions in shortening discovery, rushing the case to bench trial, and denying a continuance should constitute arbitrary and capricious conduct. See SurgiJet, Inc. v. Hicks, supra at 82.

(a) On April 2, 2000, Lawrence executed a note which stated that it was for $5,500 to Direct Mortgage Lenders Corporation due in full on May 12, 2000, with a 1999 Hyline Travel Trailer as security. The note provided for no interest amount on its face. The cashier’s check, which the plaintiff’s testimony claimed was the purchase price of the trailer, showed on its face that these funds were “LOAN PROCEEDS.” On August 21, 2000, title to the camper was recorded in the plaintiff’s name, although it was claimed to have been purchased on April 12, 2000, from Mrs. Lawrence and sold back to the defendant on a lease purchase. However, Paul D’Agnese, president of the plaintiff, testified that the plaintiff bought the trailer from Mrs. Lawrence for $5,000 on April 2, 2000, and then leased/rented the trailer to the defendant for $500 per month with the option to repurchase the trailer, and that the defendant bought the trailer back for $5,500 evidenced by the note. Plaintiff claims title to the camper trailer through a purchase from the defendant’s wife with a lease purchase option in the defendant, while the defendant claims that the plaintiff was given the title as security for a loan. Thus, at the time an action for trover or conversion is brought, plaintiff must show title, actual possession, or right of immediate possession, and in this case, mixed questions of law and fact exist as to who owned the property and whether the plaintiff was entitled to a prejudgment seizure of it. See Livingston v. Epsten-Roberts Co., 50 Ga. App. 25, 27-30 (1), (2) (177 SE 79) (1934). How can a purchaser of personalty convert what the purchaser has a legal right to possess and has given consideration for the purchase of as evidenced by the note, even on a conditional sale; if the conditional sales title remains in the seller, then how did the prejudgment repossession and sale act as an election of damages? If the oral contract was a lease with an option to buy, then what was the purchase note for and can there be a conversion? See generally OCGA §§ 44-12-150; 44-12-151; 44-12-152; 44-12-154; Mallary Bros. & Co. v. Moon, 130 Ga. 591, 594 (1) (61 SE 401) (1908) (conditional sales contract where levies and sells the property is not entitled to elect to take a money verdict); Graham v. Frazier, 82 Ga. App. 185, 195-196 (4) (60 SE2d 833) (1950) (plaintiff can either recover the property or recover damages for conversion). Plaintiff claimed $1,500 in unpaid rent on this trailer as a lease purchase agreement; however, there was no written agreement in evidence.

On November 15,1999, defendant is alleged to have sold a house in Alabama and a 1999 Ford truck to the plaintiff for $30,000 and executed a lease with the option to repurchase with rent of $750 per month; however, there was no written lease regarding the purchase of land by the plaintiff required by the statute of frauds. OCGA § 13-5-30 (4). The title certificate showed that on February 19, 1999, the defendant purchased the Ford truck, that a replacement certificate of title was issued on July 31, 2000, and the plaintiff was the first lienholder. On July 19, 2000, the defendant gave a check to pay off the balance, plus a month’s rent; however, the check bounced. Plaintiff in its amended complaint sued for the bad check.

It is well-established law that

where parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements can not be allowed to add to, take from, or vary the written instrument.

Albany Fed. Sav. &c. Assn. v. Henderson, 198 Ga. 116, 143 (6) (31 SE2d 20) (1944); see also OCGA § 24-6-1; Schluter v. Perrie, Buker, Stagg &c., 230 Ga. App. 776, 777 (1) (498 SE2d 543) (1998). However, there is no single document which evidences what either party testified was the agreement expressing the intent of the parties, because unwritten portions of a written contract may be established by parol evidence where the writing appears to be an incomplete contract and the parol evidence is consistent with the written instrument. OCGA § 24-6-2; Harden v. Orr, 219 Ga. 54, 56 (131 SE2d 545) (1963); Choice Hotels Intl. v. Ocmulgee Fields, 222 Ga. App. 185, 186-187 (1) (474 SE2d 56) (1996). Where there exist material issues of fact as to the terms and conditions of the contract, which are not all contained in the written instrument, or where an ambiguity in the written terms exists, parol evidence is admissible to explain the intent of the parties. In this case, neither party agrees on what the terms of the contract were, and each party made contentions as to the terms that make the intent of the parties in direct conflict.

(b) (1) “[P]unitive damages must be specifically prayed for in [the] complaint,” which must be more than a mere prayer for punitive damages in the ad damnum. OCGA § 51-12-5.1 (d) (1); Drug Emporium v. Peaks, 227 Ga. App. 121, 128-129 (2) (488 SE2d 500) (1997). “We cannot affirm an award of punitive damages in which the trial court declined to follow the procedures and standards now required by OCGA § 51-12-5.1, awarded punitive damages against [the defendant] to a party who did not pray for them.” Id. at 124 (2). “[The plaintiff] is not entitled to punitive damages because the complaint’s prayer for relief contain [ed] no specific prayer for punitive damages (OCGA § 51-12-5.1 (d) (1)) on his behalf from [the defendant] .” Id. at 126 (2) (b). The complaint must set forth a claim for punitive damages as well as the aggravating circumstances which authorize such damages. Id. at 127-128. Thus, the complaint must set forth facts that bring the claim within the aggravating circumstances authorized by statute, i.e., “willful misconduct, malice, fraud, wantonness, oppression, or that . . . want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b); Drug Emporium v. Peaks, supra at 129. In this case, punitive damages were not properly pled nor prayed for in the complaint, which is an amendable defect prior to retrial.

(2) The trial court in the findings of fact must set forth specifically what has been found to constitute the statutory grounds of spe-tifie aggravating factors and also set forth the aggravating circumstances, demonstrating the evidence satisfied the standard of clear and convincing evidence. OCGA § 51-12-5.1 (d) (1); Hill v. Johnson, 210 Ga. App. 824, 825 (437 SE2d 801) (1993); Chrysler Credit Corp. v. Brown, 198 Ga. App. 653, 656 (3) (402 SE2d 753) (1991). The trial court held that the “Defendant’s actions constituted wilful conversion.” The trial court found that the defendant converted something but does not specifically find that it was the trailer or the truck as the aggravating conduct. The complaint sets forth that the trailer was converted; however, the plaintiff recovered the trailer by prejudgment writ of possession while in possession as a tenant owing rent, which the plaintiff recovered a judgment for past due rent. “[T]he judgment reveals on its face that the trier of fact failed to make a specific finding that punitive damages were awardable here ... to set a specific amount in accordance with the mandate of OCGA § 51-12-5.1 (d) (2). Both of these defects render the judgment violative of OCGA § 51-12-5.1 (d),” requiring reversal. Chrysler Credit Corp. v. Brown, supra at 656 (3). In this case, the findings of fact failed to specifically state what conduct was wilful, wanton, and performed with the specific intent to cause harm to the plaintiff, rendering defendant liable for damages under OCGA § 51-12-5.1. Id. at 656-657.

(c) The trial court found a lack of substantial justification for the defense of accord and satisfaction under OCGA § 9-15-14 (b) and bad faith under OCGA § 13-6-11, which both authorize the award of attorney fees and costs of litigation. However, the record is void of evidence to support that $1,800 in attorney fees is either reasonable or related to issues authorizing such award. There were no time sheets for plaintiff’s counsel itemizing what work was related to defendant’s defense of accord and satisfaction or to bad faith; nor was a bill introduced showing what work was done. D’Agnese never testified regarding the plaintiff’s attorney fees incurred. However, plaintiff’s counsel testified in his place that he billed at $225 per hour and had spent eight hours on the case, giving a breakdown of two hours consulting with his client prior to suit; one and a half hours to draft the suit; trial four hours and twenty minutes; and travel time one hour. These legal services were unrelated to the factors authorizing such award, except some unidentified portion of trial time. Significantly, plaintiff’s counsel failed to specify what time he spent at trial or in preparation to deal with the defendant’s defenses that lacked substantial justification, what defense conduct in the transaction constituted bad faith causing expenses of litigation, or that the attorney fees were reasonable.

The award of attorney fees under OCGA § 9-15-14 (b) is discretionary with the trial court; therefore, the any evidence and abuse of discretion standard of review applies. Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987); Gibson v. Southern Gen. Ins. Co., 199 Ga. App. 776, 778 (3) (406 SE2d 121) (1991). The findings of fact found that the award of attorney fees was authorized. Porter v. Felker, 261 Ga. 421, 422 (2) (405 SE2d 31) (1991). However, in this case, plaintiff failed to present the necessary evidence to demonstrate what attorney fees were related to the defendant’s improper conduct, as opposed to cost of conducting the entire litigation in general as testified to by plaintiff’s counsel; therefore, the trial court abused its discretion in awarding attorney fees on the evidence in this record, which failed to show what attorney fees were attributable to the sanctioned conduct of the defendant. Hallman v. Emory Univ., 225 Ga. App. 247, 252-253 (4) (483 SE2d 362) (1997) (physical precedent only); Duncan v. Cropsey, 210 Ga. App. 814, 815-816 (2) (437 SE2d 787) (1993). When a judgment awards expenses of litigation and attorney fees under this Code section, the trial court must make findings of fact that such attorney fees or expenses were related to such conduct and authorized as a consequence of such conduct or such portion of the judgment must be struck. Wyatt v. Hertz Claim Mgmt. Corp., 236 Ga. App. 292, 293-294 (2) (511 SE2d 630) (1999).

When expenses of litigation are awarded to the plaintiff under OCGA § 13-6-11 for bad faith of the defendant in the transaction, plaintiff’s counsel must show by competent evidence that the attorney fees and expenses were related to the prevailing claim, that the expenses of litigation were caused by such conduct, that the expenses and attorney fees were reasonable, and that the fees were apportioned between the claims asserted and the claim authorizing such award. R. T. Patterson Funeral Home v. Head, 215 Ga. App. 578, 585-586 (5) (451 SE2d 812) (1994). Only attorney fees allocable to efforts to establish liability as to the claim in which defendant engaged in bad faith are recoverable under such statute under such factor. Fuller v. Moister, 248 Ga. 287, 288 (282 SE2d 889) (1981); Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402-403 (1) (433 SE2d 606) (1993). Plaintiff must prove the actual costs of litigation and the reasonableness of the costs. Crosby v. DeMeyer, 229 Ga. App. 672, 674 (2) (494 SE2d 568) (1997). Where, as here, plaintiff’s counsel testifies about the hours worked, the amount per hour, and what the work was for but failed to testify that the attorney fees were reasonable, such attorney fees are not recoverable. See Hughes v. Great Southern Midway, 265 Ga. 94, 95-96 (1) (454 SE2d 130) (1995); Cannon Air Transport Svcs. v. Stevens Aviation, 249 Ga. App. 514, 519 (6) (548 SE2d 485) (2001); Evans Toyota v. Cronic, 233 Ga. App. 318, 321-322 (2) (503 SE2d 358) (1998).

I am authorized to state that Judge Phipps joins in this dissent.

Decided March 29, 2002

Alexander P. LeVorse, for appellant.

George L. Kimel, S. Robert Plahn, Jr., for appellee.

       The trial court took judicial notice of the writ of possession it granted in the case and the sworn statements contained in the request for the writ.

       Whether the award of punitive damages was excessive under the Due Process Clause of the Fourteenth Amendment to the United States Constitution was not raised as an issue in this case. Accordingly, there is no need to address whether the award conforms with the substantive standards for determining compliance with federal due process set forth in BMW of North America v. Gore, 517 U. S. 559 (116 SC 1589, 134 LE2d 809) (1996). Cooper Indus. v. Leatherman Tool Group, 532 U. S. 424, 433, n. 7 (121 SC 1678, 149 LE2d 674) (2001); Brouming-Ferris Indus. &c. v. Kelco Disposal, 492 U. S. 257, 276-277 (109 SC 2909, 106 LE2d 219) (1989). Nor do we apply the de novo standard of review required for appellate review of the federal due process issue by Cooper Indus., 532 U. S. at 430-434. Since no federal constitutional due process issue was raised, state standards apply to determine the validity of the award, and the standard for appellate review of the award for excessiveness under state common law is whether the trial court abused its discretion. Hosp. Auth. of Gwinnett County, 259 Ga. at 766; Cooper Indus., 532 U. S. at 433-434; Time Warner, 254 Ga. App. at 601 (2) (a) (ii).

       Uniform State Court Rules state that “[t]he Uniform Rules of the Superior Courts shall be applicable in the State Courts.”


author: Phipps, Judge.

text:
    A01A2498.
    A01A2499.
    COLONIAL BANK v. BOULDER BANKCARD PROCESSING, INC. et al. BOULDER BANKCARD PROCESSING, INC. v. COLONIAL BANK.
    (563 SE2d 492)
   Phipps, Judge.

Boulder Bankcard Processing, Inc. (BBP) sued Colonial Bank (Colonial) for breach of an indemnity agreement. Colonial denied liability and filed a third-party complaint against American Security Bank (ASB), contending that if it was liable to BBP, ASB was liable to it under an asset purchase agreement between it and ASB. ASB denied liability, asserting that the asset purchase agreement did not include an assumption of liability for the indemnity agreement. The trial court granted BBP summary judgment against Colonial. It also granted ASB summary judgment against Colonial on the issue of liability.

In Case No. A01A2498, Colonial appeals, contending that BBP failed to show breach of the indemnity agreement and thus contesting BBP’s recovery of damages, prejudgment interest, attorney fees, and expenses. Colonial maintains that even if it breached the indemnity agreement, ASB would be liable under the asset purchase agreement. We disagree with Colonial’s contentions and affirm.

In Case No. A01A2499, BBP cross-appeals, contending that the trial court erred in its calculation of prejudgment interest, attorney fees, and expenses. We affirm the award of prejudgment interest. But because the record reveals that the trial court improperly calculated the awards of attorney fees and expenses, we vacate those awards and remand for determination.

Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. We review a grant of summary judgment de novo and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Construed in this light, the record shows that BBP provided credit card transaction processing services to merchant customers of banks who offered credit card deposit accounts to them. Colonial’s predecessor, Commercial Bank of Georgia (CBG), asked BBP to take over credit card processing for the accounts of its merchant customers on an emergency basis. While BBP agreed to do so, the expedited time frame would not have permitted BBP to take the merchants through its normal credit and underwriting procedures to determine creditworthiness. BBP therefore required CBG to indemnify it for losses it could incur as a result of the immediate conversion and processing. CBG and BBP entered into an indemnity agreement.

CBG agreed to submit to BBP its account information for merchant customers. BBP agreed that upon receipt of such information, it would begin processing those merchant accounts. CBG agreed to indemnify BBP for any resulting losses and related expenses. The indemnity agreement stated that CBG’s indemnity obligation terminated with the earliest of “(i) The termination of the Merchant Agreement between Merchant and BBP; (ii) BBP’s approval of the Merchant’s Application as provided herein; [or] (iii) BBP and [CBG] otherwise ágree in writing to terminate this Indemnity.”

BBP would approve a merchant’s application as follows. CBG would send each merchant a standard BBP merchant processing agreement and application to complete, execute, and send back to BBP. BBP agreed in the indemnity agreement to use its “best efforts” to review each merchant application and notify CBG within ten days of receiving an application whether it had approved or declined the merchant. If BBP approved the merchant, indemnity as to that merchant terminated. If BBP declined the merchant, CBG agreed to advise BBP whether it should continue processing that merchant, apparently with continued indemnification.

The day after CBG and BBP entered into the indemnity agreement, the parties executed a letter agreement. It specified that BBP would begin processing for a merchant when it received from CBG the merchant’s account information submitted on a “completed (but unexecuted) [merchant] application.” Within three days of the letter agreement, CBG began submitting to BBP unexecuted merchant applications that contained account information from CBG’s files for BBP’s immediate conversion of the information into its computer system and processing services.

Subsequently, CBG merged into Colonial. The following month, Colonial entered into an asset purchase agreement with ASB, wherein Colonial sold its electronic banking services division (i.e., its credit card business) to ASB.

When Colonial later refused to pay BBP for alleged losses on the accounts of 15 merchants, BBP sued.

Case No. A01A2498

As an initial matter, we note that Colonial’s brief does not comply with this court’s rules. Enumerated errors are grouped together and argued collectively.

Our requirements as to the form of appellate briefs were created not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court; a party will not be granted relief should we err in deciphering a brief which fails to adhere to the required form.

1. Colonial argues that a condition precedent to indemnification of a particular merchant’s account was BBP’s written merchant agreement with that merchant.

Colonial points to a provision of the indemnity agreement, which, when read alone, tends to support its argument. But we interpret the indemnity agreement as a whole and find that it did not require BBP to enter into written merchant agreements as a condition precedent to indemnification. To require a written merchant agreement between BBP and a merchant before BBP had the opportunity to review the merchant, as Colonial contends, would eviscerate the purpose of the indemnity agreement — to shift the risk of loss from BBP to CBG during the time between the expedited conversion and BBP’s approval of a merchant.

2. Colonial contends that BBP cannot recover alleged losses for five merchant accounts because BBP failed to use its “best efforts” to notify it of approved or declined decisions.

BBP agreed that within ten days of receiving a “merchant application” it would use its best efforts to notify CBG of its decision. We interpret “merchant application,” as used in this context, as the one signed and sent by the merchant, not the unexecuted merchant application that CBG used to submit initial merchant account information to BBP. It is uncontroverted that as to the five merchant accounts at issue in this contention, BBP did not receive merchant applications signed by the merchants. Therefore, BBP had no review or notification duties as to those merchants.

3. Colonial contends that there is no evidence that CBG requested BBP to provide processing services for several merchants, pointing out that in response to discovery requests, BBP failed to produce the unsigned merchant applications that it had received from CBG.

But BBP presented evidence that it began processing the merchant accounts at issue in this contention after logging into its computer system information provided on the unexecuted merchant applications submitted by CBG. Colonial’s argument that the best evidence rule requires BBP to produce the unexecuted merchant applications used here only as source documents is without merit.

4. Colonial contends that BBP is not entitled to interest because it failed to show entitlement to damages.

A computer-generated summary attached to an affidavit of BBP’s vice president of credit review shows that for the merchant accounts at issue in this case, BBP sustained losses in various amounts. Colonial makes no claim that any of the conditions terminating indemnification as to those merchant accounts occurred. Therefore, Colonial is liable to BBP for damages under the terms of the indemnity agreement.

5. Colonial contends that the trial court erroneously granted BBP attorney fees and expenses. It asserts that BBP’s claims for such were based on an allegation that it acted in bad faith and that there is no evidence of bad faith.

The record shows, however, that while BBP sought attorney fees and expenses based on an allegation of bad faith, it also based its claims, in the alternative, on the indemnity agreement. The trial court granted attorney fees and expenses based on the indemnity agreement, which entitled BBP to recover attorney fees it incurred in connection with losses resulting from its providing processing services to CBG’s merchant accounts. Based on our determination in Division 4 that BBP incurred such losses, it is entitled to recover attorney fees and expenses. No bad faith showing is required.

Colonial also argues that the recovery of attorney fees is barred because BBP failed to comply with the notice provision of OCGA § 13-1-11. That Code section, however, applies only where attorney fees were incurred in the collection of a “note or other evidence of indebtedness” upon maturity and default. We conclude that BBP’s enforcement of the indemnity agreement is not the type of default situation contemplated by OCGA § 13-1-11. Therefore, that Code section is inapplicable to this case.

6. Colonial contends that the trial court erred in granting summary judgment to ASB, maintaining that to the extent it is liable to BBP, ASB is liable to it under the asset purchase agreement between the two corporations.

“Generally, a purchasing corporation does not assume the liabilities of the seller unless: (1) there is an agreement to assume liabilities; (2) the transaction is, in fact, a merger; (3) the transaction is a fraudulent attempt to avoid liabilities; or (4) the purchaser is a mere continuation of the predecessor corporation.” Colonial argues that ASB should be held liable under the theory that it assumed liability in the asset purchase agreement.

The purchase agreement provided:

It is the intention of Colonial to transfer the [electronic banking services division] to ASB along with its liabilities, obligations, and Assets as shown on the exhibits. It is the intention of ASB to acquire the [electronic banking services division] and to assume the liabilities and obligations of the [electronic banking services division] as of the Closing Date, except as otherwise limited herein.

It further specified the “exhibits”: “ASB agrees to assume and discharge all of the liabilities and obligations pursuant to the contracts and agreements listed on Exhibits 4, 5, 6, and 8 (collectively, the ‘Contracts’) which are actually assigned to ASB on the Closing Date (collectively, the ‘Assumed Contracts’).” Finding that BBP’s indemnity agreement was not listed on any of such exhibits, the trial court granted ASB summary judgment. Colonial contends that the trial court’s conclusion was erroneous for several reasons.

(a) First, Colonial contends that ASB assumed liability of these merchant accounts in a section of the purchase agreement that provided,

ASB agrees to and shall hold Colonial harmless from and shall indemnify Colonial for any loss, cost, liability, lawsuit, claim, damage or expense (including attorneys’ fees and court costs) arising out of, related to or stemming from the acquisition of the [electronic banking services division] by ASB and its operations after the Closing Date.

But Colonial has not shown that section to be applicable. The record shows that Colonial’s liability is based on its obligation pursuant to the indemnity agreement. Colonial has not shown with citation to the record that its liability is related to ASB’s acquisition and operations of the electronic banking services division.

(b) Next, Colonial argues that ASB is liable to it because a section of the purchase agreement provided, “all revenue for the period of time prior to the Closing Date shall belong to Colonial; and there shall be no adjustment for chargebacks or other offsets, which shall be the sole responsibility of ASB.” But Colonial has not shown that section to be applicable. Again, the record shows that Colonial’s liability is based on its obligation pursuant to the indemnity agreement. Despite its claim in its reply brief, Colonial has not shown with citation to the record that its liability is based on chargebacks or offsets.

(c) Finally, Colonial maintains that although BBP was not expressly listed on an exhibit, BBP was synonymous with Nova Information Systems and Bank of Boulder. It contends that because both of those companies were expressly listed on an exhibit, ASB therefore assumed liability for the indemnity agreement.

Colonial asserts that two years before the asset purchase transaction, the Bank of Boulder sold its credit card division, which it had operated under the name “Boulder Bankcard Processing,” to Nova Newco, Inc., which then changed its name to “Boulder Bankcard Processing” (“BBP”). But even assuming this assertion is accurate, there is no showing that BBP was “synonymous” with Bank of Boulder when the asset purchase transaction occurred. Thus, the fact that Bank of Boulder was listed on an exhibit is of no consequence.

Colonial claims that Nova Newco was a subsidiary of Nova Information Systems and that after Nova Newco purchased the credit card division from Bank of Boulder, “Nova Information Systems, Inc. . . . and BBP became synonymous and literally operated as one entity.” It supports this claim essentially by pointing out that the two companies shared an attorney and that a spreadsheet submitted by BBP showing its losses reflected a column heading, “Date Processing Started with Nova.” This information presents no genuine issue as to any material fact. Moreover, the record shows that BBP and Nova Information Systems were separate entities at the time of the asset purchase transaction. They did not merge until three years later. Thus, the fact that Nova Information Systems was listed on an exhibit is of no consequence.

Case No. A01A2499

7. BBP contends that the trial court erred when it calculated the prejudgment interest at seven percent, pursuant to OCGA § 7-4-2, rather than at eighteen percent, pursuant to OCGA § 7-4-16.

In the absence of a liquidated demand, OCGA § 7-4-16 is inapplicable. The record does not support BBP’s claim that the sum it sought was liquidated within the meaning of OCGA § 7-4-15. Damages are liquidated when they are “an amount certain and fixed, either by the act and agreement of the parties, or by operation of law; a sum which cannot be changed by the proof; it is so much or nothing.” Here, there was no certain and fixed amount; rather, Colonial agreed to indemnify and hold BBP harmless from “any costs, fines, fees, including attorney’s fees . . . arising from or in connection with any losses resulting from and related expenses incurred resulting from BBP performing credit card processing and/or related services for Merchant under the merchant agreement between said Merchant and BBP.” Although BBP offered undisputed evidence of the amount of damages, such does not convert unliquidated damages to liquidated damages. OCGA § 7-4-16 is therefore inapplicable.

In actions for unliquidated damages arising out of breach of contract, it is within the discretion of the factfinder to increase the amount of damages by an allowance of interest. Thus, we affirm the trial court’s award of interest to BBP at seven percent.

Decided March 29, 2002.

Gray & Gilliland, Charles A. Ratz, for appellant.

Nations, Toman & Nutter, David C. Nutter, Craig M. Frankel, for appellees.

8. BBP contends that although the trial court correctly concluded it was “entitled to recover attorney’s fees and expenses pursuant to the Indemnity Agreement,” it erred (a) in setting the amount of fees pursuant to the formula set forth in OCGA § 13-1-11 (a) (2), rather than the actual fees and expenses incurred, and (b) in failing to grant it its expenses.

The indemnity agreement indisputably granted BBP reimbursement for expenses and attorney fees related to or resulting from its providing processing services to CBG’s merchant accounts. We held in Division 5, supra, that OCGA § 13-1-11 is inapplicable to the indemnity agreement in this case. It follows that the trial court erred in using only the formula set forth in that Code section to compute the attorney fees and expenses awards. We therefore vacate that portion of the judgment and remand the case to the trial court for proper determination of attorney fees and expenses awards.

Judgment affirmed in Case No. A01A2498. Judgment affirmed in part, vacated in part and case remanded with direction in Case No. A01A2499.

Smith, P. J., and Barnes, J., concur.

       OCGA § 9-11-56 (c).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       See Court of Appeals Rule 27 (c) (1).

       (Punctuation and footnote omitted.) Campbell v. Breedlove, 244 Ga. App. 819, 821 (535 SE2d 308) (2000).

       See generally Thornton v. Kumar, 240 Ga. App. 897, 898-899 (525 SE2d 735) (1999).

       See Morris v. Nat. Western Life Ins. Co., 208 Ga. App. 443, 444 (1) (c) (430 SE2d 813) (1993); Tyner v. Sheriff, 164 Ga. App. 360-361 (2) (297 SE2d 114) (1982) (summarized statements of what account and records show are admissible, provided records themselves are accessible).

        Thompson v. Enterprise Leasing Co. &c., 240 Ga. App. 222, 224 (2) (522 SE2d 670) (1999).

       OCGA § 13-1-11 (a) (1), (2), (3); Boddy Enterprises v. City of Atlanta, 171 Ga. App. 551, 552 (320 SE2d 374) (1984).

        Boddy Enterprises, supra at 553.

       See, e.g., Holcomb v. Evans, 176 Ga. App. 654, 657 (3) (337 SE2d 435) (1985) (personal services contract was not “note or other evidence of indebtedness” within meaning of Code section); O’Brien’s Irish Pub v. Gerlew Holdings, 175 Ga. App. 162, 165-166 (4) (332 SE2d 920) (1985) (exclusive listing contract was not a “note or other evidence of indebtedness” within the meaning of Code section); Boddy Enterprises, supra (provision in a deed that a bank sought to enforce for reasonable attorney fees incurred as the result of an eminent domain proceeding in order to protect its security interest in condemned property was not contemplated by Code section). Compare Groover v. Commercial Bancorp &c., 220 Ga. App. 13, 17 (1) (d) (467 SE2d 355) (1996) (personal guaranty on a note was within Code section); Ga. Color Farms v. K.K.L., Ltd. Partnership, 234 Ga. App. 849, 852 (3) (507 SE2d 817) (1998) (lease agreement found to be evidence of indebtedness within meaning of Code section); Kenemer v. First Nat. Bank &c., 210 Ga. App. 389-390 (436 SE2d 96) (1993) (Code section applicable where attorney collected debt via a foreclosure proceeding where note and security deed provided for attorney fees).

        Bullington v. Union Tool Corp., 254 Ga. 283, 284 (328 SE2d 726) (1985).

       (Emphasis supplied.)

       (Emphasis supplied.)

       See Court of Appeals Rule 27 (a) (1), (c) (3) (i); Cox v. Erwin, 246 Ga. App. 439, 440 (1) (541 SE2d 69) (2000) (it is not the function of this court to cull the record on behalf of a party in search of instances of error; the burden is upon the party alleging error to show it affirmatively in the record).

       See Court of Appeals Rule 27 (a) (1), (c) (3) (i); Cox, supra.

       See, e.g., Carswell v. Nat. Exchange Bank &c., 165 Ga. 351, 354 (140 SE 755) (1927) (fact that same person was president of both companies and that other persons were directors in both companies did not alter fact that companies were separate and distinct).

        Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576, 579 (2) (373 SE2d 758) (1988).

       (Punctuation and footnote omitted.) Carter v. Ravenwood Dev. Co., 249 Ga. App. 603, 605 (2) (549 SE2d 402) (2001).

       See Thompson, supra at 224 (3).

        Typo-Repro Svcs., supra at 579-580; OCGA § 13-6-13.

       See Boddy Enterprises, supra at 553.

       See id.


author: Ellington, Judge.

text:
    A02A0619.
    VAUGHN, COLTRANE & ASSOCIATES et al. v. VAN HORN CONSTRUCTION, INC.
    (563 SE2d 548)
   Ellington, Judge.

This appeal is from the grant of the appellee’s motion for summary judgment on the appellants’ claim for indemnification in a wrongful death suit. Because the trial court misconstrued the controlling contract, we reverse.

Summary judgment is appropriate under OCGA § 9-11-56 “when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” (Punctuation omitted.) Dover v. Mathis, 249 Ga. App. 753 (549 SE2d 541) (2001). We apply a de novo standard of appellate review and “view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (Footnote omitted.) Id. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In 1996, Keystone Food Corporation, as owner, hired Van Horn Construction, Inc., as contractor, to build a poultry plant in Camilla. Reginald Jackson, an employee of Van Horn, was electrocuted on the work site; his parents filed a wrongful death action against several entities, including two alleged consultants of Keystone: KCV Construction Services, Inc. and Vaughn, Coltrane & Associates (‘VCA”). KCV and VCA filed a third-party complaint seeking indemnification from Van Horn on the basis that, in Van Horn’s written contract with Keystone, Van Horn undertook to indemnify Keystone’s consultants and agents. The trial court concluded, however, that KCV and VCA were not third-party beneficiaries of the contract which created Van Horn’s indemnity obligation, citing Walls, Inc. v. Atlantic Realty Co., 186 Ga. App. 389 (367 SE2d 278) (1988), and granted Van Horn’s motion for summary judgment.

KCV and VCA acknowledge that because they were not parties to the contract they seek to enforce they must prove they were third-party beneficiaries of that contract. In order for a nonparty to have standing to enforce a contract as a third-party beneficiary under OCGA § 9-2-20 (b), it must clearly appear that one party to the contract promised another party to the contract to render some performance to the nonparty to the contract. Starrett v. Commercial Bank, 226 Ga. App. 598, 599 (1) (486 SE2d 923) (1997). Further, it must appear that both parties to the contract intended that the contract benefit the nonparty. Walls, Inc. v. Atlantic Realty Co., 186 Ga. App. at 392 (1).

In the case the trial court identified as controlling here, Walls, Inc. v. Atlantic Realty Co., supra, a site owner filed a third-party complaint seeking indemnification from a subcontractor, the decedent’s employer. 186 Ga. App. at 389 (1). The subcontractor’s agreement with the contractor contained (by incorporation) the subcontractor’s promise to indemnify the owner. Id. at 390-391 (1). The contract also included the following provision: “[the contractor and the subcontractor] agree . . . this subcontract is solely for the benefit of the signatories hereto.” (Punctuation omitted.) Id. at 392 (1). We held “[t]he intent of the parties to this particular subcontract was to the effect that no others benefit from it[J and this intent could scarcely have been more clearly expressed.” Id. Because the owner was not a signatory to the subcontract, and because the contract excluded any others from benefitting, the subcontractor was entitled to summary judgment. Id.

In this case, Paragraph 7.2 of the agreement between Keystone and Van Horn, in a section entitled “Agreement Documents,” provided: “The agreement documents shall not be construed to create a contractual relationship between the owner, sub-contractors, sub-sub-contractors or any other persons or entities other than the owner and the contractor.” By holding that Walls, Inc. v. Atlantic Realty Co., supra, demanded summary judgment in favor of Van Horn, the trial court implicitly found that Paragraph 7.2 had the same effect as the solely-for-the-benefit-of-the-signatories provision in Walls, Inc. v. Atlantic Realty Co., that is, that there could be no third-party beneficiaries to any part of the contract. We reject this analysis.

First, by its plain terms, Paragraph 7.2 in the agreement in this case prevented subcontractors and other nonsignatories from relying on the contract to pursue contractual remedies against the owner (Keystone), as is commonly provided in construction contracts. See Tucker Materials (Ga.) v. Devito Contracting &c., 245 Ga. App. 309, 311 (535 SE2d 858) (2000) (similar provision). Paragraph 7.2 in no way limited the contractor’s (Van Horn’s) promise in the more specific indemnity provision in Paragraph 9.12 to indemnify Keystone and its consultants and agents from claims arising from the project. If the parties intended that no others benefit from the construction contract, that intent could have been expressed in such unmistakable language as that seen in Walls, Inc. v. Atlantic Realty Co., supra.

Furthermore, “a contract must be interpreted to give the greatest effect possible to all provisions rather than to leave any part of the contract unreasonable or having no effect. And, one of the most fundamental principles of construction is that a court should, if possible, construe a contract so as not to render any of its provisions meaningless.” (Citations and footnote omitted.) Sofran Peachtree City v. Peachtree City Holdings, 250 Ga. App. 46, 50 (550 SE2d 429) (2001). The intention of the parties to a contract is ascertained “from the entire contract, considering each provision in connection with the others, and not giving the contract a construction which entirely neutralizes one provision if it is susceptible of another which gives effect to all of its provisions.” (Citation and punctuation omitted.) Alimenta Processing Corp. v. South Ga. Pecan Co., 185 Ga. App. 330, 332 (364 SE2d 84) (1987). See OCGA § 13-2-2 (4) (“The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.”).

Decided April 1, 2002.

Cobb, Grabbe, Spillers & Irwin, R. Chris Irwin, for appellants.

Mozley, Finlayson & hoggins, Sewell K. hoggins, Jennifer E. The-obald, for appellee.

Because Van Horn promised in Paragraph 9.12 to render some performance (indemnity) to certain nonparties to the contract (Keystone’s consultants and agents), the contract clearly created a class of third-party beneficiaries. Starrett v. Commercial Bank, 226 Ga. App. at 599 (1). The trial court’s construction of the contract as providing that no one other than the signatories (Keystone and Van Horn) could benefit from the contract neutralized Paragraph 9.12. See Sofran Peachtree City v. Peachtree City Holdings, 250 Ga. App. at 50. Because the trial court erred in so construing the contract, we reverse the grant of summary judgment in favor of Van Horn.

Judgment reversed.

Smith, P. J., and Eldridge, J, concur.

       Paragraph 9.12 of the construction contract between Keystone and Van Horn provided, in pertinent part: “To the fullest extent permitted by law, [Van Horn] shall indemnify and hold harmless [Keystone], [Keystone’s] consultants, agents, employees [or] any of them from and against claims, damages, losses and expenses . . . arising out of or resulting from performance of the work.”

       See also Sink & Petersen, The A201 Deskbook (1998) (American Institute of Architects (AIA) Contract A201-1997 (construction contract between owner and contractor), Paragraph 1.1.2 (definition of the contract): “The Contract Documents shall not be construed to create a contractual relationship of any kind. . . between the Owner and a Subcontractor or Sub-subcontractor.”); Acret, Construction Industry Formbook (2nd ed. 1990) (Associated General Contractors (AGC) Standard Form No. 415 (design-build agreement between owner and contractor), Paragraph 4.3 (subcontracts): “No contractual relationship shall exist between the Owner and any Subcontractor.”).

       We do not decide that KCV and VCA were in fact Keystone’s consultants or agents within the terms of Paragraph 9.12, and therefore third-party beneficiaries - only that Van Horn is not entitled to judgment as a matter of law based on the trial court’s erroneous construction of the contract and the holding in Walls, Inc. v. Atlantic Realty Co., supra. We cannot determine on the existing record whether Van Horn is entitled to summary judgment on some other basis.