text:
    A89A0592.
    WEIDLUND v. THE STATE.
    (382 SE2d 709)
   Sognier, Judge.

Donald Weidlund appeals from the trial court’s denial of his motion for acquittal pursuant to OCGA § 17-7-170. See Cook v. State, 183 Ga. App. 720 (1) (359 SE2d 716) (1987).

Appellant was indicted in Camden Superior Court on November 25, 1987 on one count of trafficking in cocaine. Camden Superior Court has two terms, Constitution of Georgia 1983, Art. VI, Sec. I, Par. VI, which terms start on the first Monday in April and November. OCGA § 15-6-3 (7) (B). Thus, appellant was indicted at the November Term. Appellant made a demand for trial within that term, on March 23, 1988. The trial court in its order on appellant’s motion noted that a jury was impaneled during the November 1987 term of court, on March 28, 1988, which could have tried appellant. Trial was set for April 11, 1988, within the April Term of the court. Appellant’s co-defendant requested a continuance and agreed to withdraw his demand for trial, but appellant’s counsel announced ready and stated that appellant was not withdrawing his demand. The trial court thereupon severed appellant’s trial from that of his co-defendant, and a jury was selected. However, when court reconvened on April 14, 1988 for the trial, appellant’s counsel moved for a continuance on the basis that although a demand for all scientific reports had been made, appellant had not been provided with a crime lab report concerning the identity of latent fingerprints that had been lifted from the package alleged to have contained the contraband. Appellant also moved for a continuance on the ground that one of the jurors had failed to appear. The motion for a continuance was granted and subsequently appellant’s case was placed on the trial calendar and was tried on October 24, 1988, during the April Term. The trial resulted in a hung jury. When the case was placed on the trial calendar in the succeeding November Term, appellant moved for acquittal under OCGA § 17-7-170.

OCGA § 17-7-170 provides in pertinent part: “(a) Any person against whom a true bill of indictment or an accusation is filed with the clerk for an offense not affecting his life may enter a demand for trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter .... (b) If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.” “ ‘A defendant who has made a proper demand for a trial is entitled to an automatic discharge without further motion if he is not tried on the second term of court provided a jury is present at each term who is qualified to try him.’ [Cit.] It is not disputed that juries were present, qualified and impaneled during all pertinent terms of court. [Appellant’s] demand for trial in accordance with OCGA § 17-7-170 (a) was properly filed in the [November 1987] term of court. Therefore, [appellant] was entitled to an absolute discharge and acquittal if he had not been put on trial before the end of the [April 1988] term . . . provided ‘that the failure to try be not due to the voluntary act of the defendant; as, for instance, voluntary absence from court, or obtaining a postponement to another term, and the like. In all such cases the defendant will be held to have waived his demand. It has been said many times that unless the demand be waived by some affirmative act of the defendant, the only alternative is trial or acquittal by discharge.’ . . . [Cit.] The inquiry, thus, becomes whether [appellant] waived his right to automatic discharge and acquittal by some affirmative act on his part. ‘(T)he burden of showing a waiver is on the (S)tate.’ [Cit.]” State v. McNeil, 176 Ga. App. 323, 324-325 (335 SE2d 728) (1985).

The State argues, and the trial court found, that appellant waived his rights under OCGA § 17-7-170 when he moved for a continuance based on the State’s failure to provide him with a scientific report demanded by appellant pursuant to OCGA § 17-7-211. In the transcript of the conference before the trial court on Monday, April 11, 1988, in which appellant’s co-defendant waived his right to a speedy trial but appellant declined to do so, the assistant district attorney stated to the court that the State did not have a written copy of the fingerprint analysis sought by both defendants, but that he had been assured the test would be conducted the following day (Tuesday, April 12th) and that the fingerprint expert would be available to testify “by Thursday.” That Thursday was April 14th, the day appellant moved for a continuance in the absence of the test results. Appellant’s counsel testified he received the report from the crime lab in late September or early October and the report, dated September 6, 1988, was submitted into evidence during appellant’s October 24, 1988 trial.

Even assuming appellant was not entitled to the fingerprint report in April 1988 because, contrary to statements made by the assis- . tant district attorney to the trial court that the test would be conducted and the expert ready to testify by trial on April 14th, the report was not “written” and “in the possession of or available to the prosecuting attorney” under OCGA § 17-7-211 (b), so that appellant was not entitled to the continuance upon the State’s failure to produce the report, see Law v. State, 251 Ga. 525 (307 SE2d 904) (1983), nevertheless, the continuance “ ‘did not delay the trial past the time within which trial could be held in accordance with his demand. In Walker v. State, 89 Ga. 482 (15 SE 553) ([1892]), appellant’s case was called on the last day when he could be tried consistent with his timely demand. The court agreed, at defendant’s request, to pass the case until later in the day. The day ended and the court adjourned, closing the term, without calling defendant’s case again. The Supreme Court held that there was no waiver under those facts and stated: “A waiver of the demand would result from a continuance granted on the motion of the accused, or from any other act on his part showing affirmatively that he consented to passing the case until a subsequent term.” ’ [Cit.] ‘That “passing the case until a subsequent term” means to a term outside the period of the demand was made clear in Adams v. State, 129 Ga. App. 839 (201 SE2d 649) ([1973]).’ [Cit.] In Adams, the defendant’s trial held in the same term as [her] demand ended in a mistrial. She agreed to a postponement of the re-trial until the next term of court. However, she was not tried during that term. Instead, without her consent, the trial was continued until the following term. This court held that there was no waiver of her demand. Specifically, no waiver occurred by her agreement to postpone the trial until the second term covered by her demand because it was still within a term suitable for her trial according to her demand. A waiver would have occurred in Adams only if she had agreed to postpone the trial to a time outside the term of the demand.” McNeil, supra at 325.

Decided May 24, 1989.

Clyde M. Urquhart, for appellant.

W. Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

Based upon the foregoing, we do not agree with the State that appellant’s action in moving for a continuance until the test results were forthcoming, when the State failed to produce scientific test results it had informed the trial court would be ready on the day of trial, constitutes a waiver of appellant’s rights. The continuance appellant obtained, even if it could be characterized as an affirmative or voluntary act by appellant, did not postpone his trial to another term, since the report was ultimately provided to appellant within the April 1988 term. Appellant was then tried and “ ‘[t]he fact that a mistrial was declared at the next term after the defendant had made demand for trial is not a reason for refusing his discharge. “The court could have put the defendant on trial before another jury at the same term of the court.” [Cits.]’ [Cits.] ‘So far as the record discloses, there was no obstacle in the way of trying the defendant again at the [April] term, except the difficulty and expense of obtaining another jury.’ [Cit.]” State v. Allen, 165 Ga. App. 86, 88 (299 SE2d 158) (1983). Therefore, the trial court erred by denying appellant’s motion for discharge and acquittal. McNeil, supra.

Judgment reversed.

Banke, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    A89A0858, A89A0859.
    WILLIS v. HEALTHDYNE, INC.; and vice versa.
    (382 SE2d 651)
   Deen, Presiding Judge.

Frederick L. Willis III contends that he purchased 3,500 shares of Healthdyne stock in 1972 for $2 per share and that he gave a nonrecourse note which was secured by the shares as consideration. Healthdyne claims that Willis defaulted on the note and, pursuant to an agreement between the parties, the certificate which represented the 3,500 shares was cancelled and the shares were distributed to another party. The value of the shares at the time of Willis’ default was less than Willis’ debt as represented by the note, and Healthdyne claims that it discharged Willis’ obligation and did not seek a deficiency against him.

Four years after the default, Willis learned that Healthdyne was preparing for its first public stock offering and that the price would be $17.75 per share. Approximately two weeks before the public offering, Willis’ attorneys contacted Healthdyne demanding that 3,500 shares of Healthdyne’s common stock be issued to Willis in return for their tender of payment under the note. The demand was rejected, and Willis brought suit against Healthdyne claiming that cancellation of the shares without notice to him violated the Uniform Commercial Code, OCGA § 11-9-502, and that Healthdyne’s cancellation of the stock certificate and distribution of the shares to a third party constituted conversion. He also sought attorney fees and punitive damages.

At the conclusion of the jury trial, Healthdyne moved for a directed verdict. The trial court granted the motion, holding that cancellation of the stock certificates did not constitute conversion, and that counsel’s stipulation that the shares were worth less than $2 when they were cancelled did not state a claim under the Uniform Commercial Code because Willis had not suffered any actual damages when they were cancelled. As Willis did not prevail on his substantive claims, the court also directed a verdict on his claims for punitive damages, prejudgment interest and attorney fees.

Case No. A89A0858

1. Healthdyne enacted a restricted stock plan in the early 1970’s. Participants in the plan executed three documents: a Restricted Stock Purchase Agreement, a Secured Note Collateral Agreement and a nonrecourse Secured Note. The documents set forth the rights and obligations of the parties and were executed by Healthdyne and Willis on December 23, 1972. Willis agreed to purchase 3,500 shares of Healthdyne stock at $2 per share. Willis reviewed each document with Healthdyne’s president before he signed it. He did not pay anything for participation in the plan, but executed a nonrecourse note in which he promised to pay the principal amount of the stock purchase ($7,000) plus interest no later than December 23, 1977. The only collateral pledged was the certificate for 3,500 shares. The collateral agreement provided that Willis’ interest in the shares was governed by it, and that it entitled Healthdyne to sell or otherwise liquidate the collateral upon default and to apply the proceeds to Willis’ obligation. The agreement also provided that in the event of Willis’ default the pledged stock could be liquidated “with or without any advertisement or notice whatsoever as the company in its sole discretion shall determine.” (Willis’ contention that the restricted legend placed upon his certificate was improper is misplaced because he agreed to the placing of such a restriction in the agreement.)

The evidence showed that by December 23, 1977, when the non-recourse note was due, Healthdyne’s stock was selling for $1 per share, or one-half price that Willis agreed to pay for it under the note. He defaulted. Later, when he was given other opportunities to purchase shares of stock at less than $2 per share, he declined.

Healthdyne took steps to cancel Willis’ certificate on April 30, 1980, by sending a letter to Trust Company Bank instructing the bank to cancel the certificate and issue new shares to other plan participants. The certificate was marked “cancelled” on May 1, 1980. Willis did not take any action until the following year, when Healthdyne was contemplating a public offering of its stock.

A sale of collateral, even if it is without notice, does not constitute conversion, but a defaulting debtor can recover actual damages under OCGA § 11-9-507 for any loss caused by an inadequate sale price. Clark v. Gen. Motors Acceptance Corp., 185 Ga. App. 130, 132 (363 SE2d 813) (1987); Trust Co. of Columbus v. Kite, 164 Ga. App. 119 (294 SE2d 606) (1982). The debtor, however, is protected by a rebuttable presumption that the value of the collateral is equal to the indebtedness. Emmons v. Burkett, 256 Ga. 855, 857 (353 SE2d 908) (1987).

2. Appellant, however, argues that the mere cancellation of the certificate does not constitute a sale or other disposition of the stock under OCGA § 11-9-504 and that OCGA § 11-9-505 (2) provides for the only situation in which collateral can be retained by a secured party in satisfaction of a debt. Under that Code section, the secured party has the option of retaining the collateral in satisfaction of the obligation, provided the creditor gives written notice of such proposal if he has not signed a statement after default renouncing or modifying his rights under this subsection. The debtor has 21 days in which to raise an objection to such a proposal. This Code section has been held to set forth a permissive, not a mandatory, remedy. McCullough v. Mobiland, 139 Ga. App. 260 (228 SE2d 146) (1976). Under OCGA § 11-9-501, which sets forth the rights and remedies of the secured parties, subsection (2) states that “the debtor has the rights and remedies provided in this part, those provided in the security agreement, and those provided in Code Section 11-9-207.” (Emphasis supplied.)

In making his arguments as to lack of notice of Healthdyne’s decision to cancel the certificate and retain the stock in lieu of the debt, appellant totally overlooks those provisions in the Collateral Agreement in which he granted Healthdyne the right to choose the course of action which it took. As the trial court astutely pointed out, Willis suffered no damages because the stock was worth less than the amount of the debt, and Healthdyne honored its part of the agreement not to seek a deficiency in the event of a default.

Decided May 9, 1989

Rehearing denied May 25, 1989

Davis, Matthews & Quigley, Ron L. Quigley, Robert E. Casey, Jr., James E. Gilson, for appellant.

King & Spalding, William S. Duffey, Jr., William A. Clineburg, Jr., for appellee.

3. Where a note provides a specific date of maturity, a cause of action against the maker accrues on the day after maturity. OCGA § 11-3-122 (1) (a). Willis, through his counsel, admitted at trial that the note required payment by December 23, 1977, and that he failed to make the required payment. He does not contend that Healthdyne had no right of possession of the certificate after default. He argues that he should have been permitted to redeem the collateral nearly four years after default, when the value of the stock appeared to be worth over seventeen dollars a share in the near future.

Under OCGA § 11-9-506, the defaulting party is permitted to redeem the collateral only before the secured party has disposed of it or entered into a contract for its disposition “by tendering fulfillment of all obligations secured by the collateral,” as well as expenses incurred by the secured party in retaking, holding, etc. the collateral. All the evidence showed that Healthdyne had disposed of the collateral as it was permitted to do under the Collateral Agreement and discharged Willis’ obligations prior to his demand for redemption. His request was therefore untimely.

4. As Willis did not suffer any actual damages, the trial court did not err in granting a directed verdict against him. He stipulated that the shares were worth less than $2 each when the certificate was can-celled approximately three years after his default. The recovery of “any loss” by the debtor under OCGA § 11-9-507 (1) for the creditor’s noncompliance with the Codal provisions must necessarily be limited to actual damages caused by a sale at less than an adequate price. See Trust Co. of Columbus v. Kite, supra. Appellant did not suffer such damages.

Case No. A89A0859

As Case No. A89A0858 is affirmed, it is not necessary to address the issues raised in the cross-appeal, and the same is dismissed.

Judgment in Case No. A89A0858 affirmed. Case No. A89A0859 is dismissed.

Birdsong and Benham, JJ., concur.


text:
    A89A1073.
    DARRACOTT v. THE STATE.
    (382 SE2d 664)
   Deen, Presiding Judge.

Jeff Mills Darracott was convicted of two counts of underage possession of alcoholic beverages (OCGA § 3-3-23 (a) (2)). He appeals following the denial of his motion for a new trial.

1. The trial court did not err in denying appellant’s motion to suppress both counts against him. The evidence showed that on July 17,1987, police officers were asked to investigate a loud party in some woods behind a Cobb County shopping center. When they arrived they observed approximately 200 young people at a party, a keg of beer, and people walking around with cups. The partygoers scattered after someone shouted, “Police!” One of the officers spotted appellant, who had a cup in his hand and was leaving the scene. When the officer asked him to stop, appellant cursed him and ran. The officer pursued and caught him, and noticed that he was intoxicated. Darracott’s identification showed him to be seventeen years old.

About midnight on August 1, 1987, a police officer in a patrol car observed several young people standing around two cars in an empty Cobb County shopping center parking lot. Beer cans and other litter were scattered on the ground. The officer’s suspicions were aroused when three people jumped into a vehicle and drove off when the police car approached the area. After the vehicle was stopped, the officer determined that all of the occupants, including appellant, had been drinking. Prior to his arrest, Darracott stated that he had consumed three to four beers earlier.

Under the standard enunciated in Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), the officer in both cases against Darracott was authorized to conduct a limited investigatory stop because each one possessed an articulable suspicion of criminal conduct. We also find that the evidence in this case is remarkably similar to that in Hadaway v. State, 190 Ga. App. 5 (378 SE2d 127) (1989), and find that the trial court did not err in denying appellant’s motion to suppress.

2. The trial court also did not err in denying appellant’s general demurrer to both counts of underage possession of alcohol. He raised no legal defense that he was in legal possession of alcohol and raises for the first time on appeal an argument that the accusations omitted the word “knowingly” as a part of the offense. Issues not raised in the court below may not be raised for the first time on appeal. Durham v. State, 185 Ga. App. 163, 167 (363 SE2d 607) (1987). An examination of the accusations reveals that they were drawn with sufficient specificity to inform the accused of the charge against him so that he could prepare a defense against each charge. Rowles v. State, 143 Ga. App. 553, 554 (239 SE2d 164) (1977).

Decided May 11, 1989

Rehearing denied May 25, 1989

Billy L. Spruell, for appellant.

Patrick H. Head, Solicitor, Melodie H. Clayton, J. William Morse, Assistant Solicitors, for appellee.

3. The jury charge as to the elements of the offense contains no error. Appellant argues that the court failed to charge the jury that knowing possession of alcohol was an essential element of the crimes of which he was accused.

We have examined the charge as a whole and find that the court gave a lengthy charge on intent as a part of the general charge and later read the statute he was alleged to have violated verbatim to the jury: “No person except as otherwise provided by law, who is under 21 years of age, shall purchase or knowingly possess an alcoholic beverage.” (Emphasis supplied.) The court then proceeded to charge the three exceptions to the law.

In examining a jury charge, we must take it in its entirety to determine if it contains reversible error. Anderson v. State, 150 Ga. App. 318 (257 SE2d 385) (1979). While terms of common usage and meaning need not be specifically defined, Garvey v. State, 176 Ga. App. 268 (335 SE2d 640) (1985), the lower court’s failure to define meanings of terms used in the charge is not ordinarily ground for reversal. Clark v. State, 185 Ga. App. 513 (364 SE2d 641) (1988). Therefore, taking the charge as a whole and applying the case law applicable to the necessity for defining the meaning of certain terms contained within the charge, we find no error. Moreover, “[s]ince the charge was verbatim from the Code and states a correct principle of law, in the absence of a request for more specific instructions, we find no error in the court’s charge as given. [Cit.]” Prickett v. State, 155 Ga. App. 668, 669 (272 SE2d 534) (1980).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A1119.
    DUBLIN PUB, INC. v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK.
    (382 SE2d 654)
   Deen, Presiding Judge.

This is the second appeal between these parties arising from dispossessory proceedings under a ten-year lease agreement entered into in 1984. In the first appeal this court affirmed a ruling of the trial court, entered March 28, 1988, dismissing the dispossessory action brought by MONY in February of 1987 and enforcing the terms of a settlement agreement between the parties. Mutual Ins. Co. of N. Y. v. Dublin Pub, 190 Ga. App. 94 (378 SE2d 497) (1989). Under the settlement agreement, in consideration of the payment by Dublin Pub of a specified amount, MONY agreed to withdraw its termination of the lease, acknowledging that it remained in full force and effect and continuing to honor its rights, obligations, and duties thereunder.

The subject of the instant appeal is the rental payment due in February 1988, which was tendered to MONY’s attorney by Dublin Pub while it was involved in Chapter 7 bankruptcy proceedings requiring all rental payments to be turned over to the bankruptcy trustee. See 11 USC § 704. The check was delivered to the bankruptcy trustee, but when the proceedings were terminated shortly thereafter it was never received by MONY. The disposition of this check was not determined and on July 6, 1988, Dublin Pub placed a stop payment order on it. No replacement check was issued and on September 21, 1988, MONY mailed._a letter to Dublin Pub demanding payment of the February rent no later than October 3, 1988, and advising it that failure to comply would be considered a default under the lease.

On Monday October 3, Dublin Pub’s president, Jim Oliver, mailed two checks by certified mail to the office of MONY’s leasing agent, one to replace the February 1988 check that had been lost and the second for the rent due in October. On October 11 Oliver received a letter from MONY’s rental agent stating that the October rent was past due and “[therefore, you shall have ten (10) days from the date of your receipt of this letter to pay the outstanding rental without assessment of . . . attorney’s fees. If you have not responded to this request within ten (10) days, we will have no other alternative but to fully prosecute the legal remedies available to us . . . .” (Indention omitted.) Oliver called the rental agent and, upon learning that neither the February replacement check nor the October rental check had been received, stopped payment on both of them and issued two new checks. These two checks, with Oliver’s cover letter explaining the circumstances of the delay, arrived at MONY’s leasing office the next day, October 13; the two original checks mailed October 3 were received on October 14. The instant dispossessory action was filed on October 12. The case was tried by jury, which rendered a verdict in favor of MONY, and Dublin Pub appeals from the denial of its motions for directed verdict, new trial and judgment n.o.v.

1. Appellant contends that the dismissal of MONY’s first dispossessory action on March 28, 1988 acted as an adjudication upon the merits, barring relitigation of all issues raised or which could have been raised by the pleadings pursuant to OCGA § 9-11-41 (b). This argument, however, overlooks the fact that the trial court’s dismissal of the first dispossessory action was based upon enforcement of the terms and conditions of the settlement agreement between the parties. The trial court found that “[t]he delivery of this sum by [Dublin Pub’s] attorney to [MONY] along with subsequent acceptance of monthly rental payments paid directly to [MONY], considered together, amounts to an acceptance of the settlement offer.” This court affirmed, concluding that the trial court’s findings were amply authorized by the evidence. Mutual Ins. Co. of N. Y. v. Dublin Pub, supra at 95. The settlement agreement cleared the dispute over past-due rent owed by Dublin Pub, but MONY did not relinquish or release its claim to future rents. See Lokas v. Greer, 169 Ga. App. 537 (313 SE2d 725) (1984); Kahn v. Columbus Mills, 188 Ga. App. 90 (371 SE2d 908) (1988). Because of the misplacement of the February 1988 check due to the bankruptcy proceedings, the issue of its repayment did not give rise to a termination of the lease until after Dublin Pub became in default on October 3, 1988. This was well beyond the time it could have been raised in the first dispossessory action, since judgment was entered on March 28, 1988. Therefore the trial court’s ruling on Dublin Pub’s res judicata claim was correct.

2. Under the lease MONY had the right to terminate if the tenant failed to pay a rental installment when due and it remained unpaid for ten days. Although the February 1988 rental check was timely tendered to MONY by delivery to its attorney, the attorney turned it over to the bankruptcy trustee as he was obligated to do by 11 USC § 542. Dublin Pub argues, however, that receipt of the check by MONY prior to the time it was due prevented MONY from claiming a default regardless of the bankruptcy requirements, and that the lease as negotiated did not contemplate nor provide for such an eventuality. MONY asserts that because the check was the property of the bankrupt estate at the time the rent was due, its tender was a nullity and the rent remained unpaid for ten days.

We agree with MONY. Regardless of whether the tender was timely, the fact remains that MONY did not receive the February 1988 rent check and the rent remained unpaid for over ten days. In the event of such an occurrence, the terms of the lease authorized MONY to terminate and demand immediate possession of the premises. See Perimeter Mall v. Retail Sense, 162 Ga. App. 465 (291 SE2d 392) (1982); Eason Publications v. Monson, 163 Ga. App. 370 (294 SE2d 585) (1982). In a commercial lease, the default provisions are controlling. Hardwick, Cook & Co. v. 3379 Peachtree, Ltd., 184 Ga. App. 822 (1) (363 SE2d 31) (1987); Eason Publications, supra. MONY had the right to insist upon these terms and to bring dispossessory proceedings in accordance with the law. Hinton v. Jackson, 78 Ga. App. 62 (2) (50 SE2d 254) (1948).

Decided May 9, 1989

Rehearing denied May 25, 1989

Michael J. Reily, for appellant.

Alston & Bird, Bernard Taylor, for appellee.

3. Likewise, for the same reasons, MONY did not waive its right to terminate the lease prior to October 21, 1988, because of the letter written by its rental agent extending the demand for payment of the October rent until that date. By the terms of the lease, which are controlling, Dublin Pub was in default when it failed to insure that the February rent check was paid within ten days of the time it was due. It failed to do this on three occasions: after the bankruptcy was concluded; after a stop payment order was issued on that check in July; and by October 3 pursuant to MONY’s demand letter of September 21, 1988. The lease gave MONY the right to pursue a number of remedies upon default, and it expressly declared that forbearance to enforce one or more of these remedies would not be deemed to constitute a waiver.

“ ‘The jury is the final arbiter of the facts and the verdict must be construed by the trial and appellate courts in the light most favorable to upholding the jury verdict.’ [Cit.]” Gorin v. FPA 2, P.C., 184 Ga. App. 239, 240 (361 SE2d 193) (1987). Under the terms of the lease and the evidence presented, the jury was authorized to reach its verdict and, finding no error, we will not disturb it. It follows that the trial court also correctly denied Dublin Pub’s motions for directed verdict, new trial and judgment n.o.v.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A1126.
    BROWN et al. v. THOMAS.
    (382 SE2d 656)
   Deen, Presiding Judge.

Eddie F. Thomas sued appellants R. Lynn Brown and Charlie G. Brown on a promissory note, seeking recovery of principal, interest, attorney fees and costs. The Browns answered and counterclaimed for damages and rescission of the note on the basis of fraud. The case was tried before a jury, and at the close of all the evidence the trial court granted Thomas’ motion for directed verdict. The Browns appeal from the judgment, enumerating seven errors, all of which involve the trial court’s conduct of the trial in regard to the admission or failure to admit certain evidence and the submission or refusal to submit specified issues to the jury. However, no trial transcript is included on appeal, and it affirmatively appears from the record that the failure to file it was caused by the appellants. Held:

Decided May 9, 1989

Rehearing denied May 25, 1989.

Pamela M. Richards, for appellants.

Verlin L. Jones, Jr., for appellee.

1. “ ‘When the only question [s] for determination [require] a consideration of the evidence and where no transcript of the evidence is contained in the record, the judgment of the trial court must be affirmed. [Cit.]’ [Cit.]” Lawson v. Watkins, 188 Ga. App. 245, 246 (1) (372 SE2d 830) (1988). The notice of appeal is silent as to transmission of the court reporter’s transcript. “ ‘Where the appellant fails to bring up a transcript or otherwise meet his burden of affirmatively showing error by the record, the judgment will not be disturbed. (Cit.)’ [Cit.]” Id. “[I]t is well established that ‘(a) brief cannot be used in lieu of the record or transcript for adding evidence to the record. (Cits.) We must take our evidence from the record and not from the brief of either party.’ [Cit.] Since in the absence of a transcript or other appropriate substitute, OCGA § 5-6-41 (g), an appellate court is bound to assume that the trial court’s findings are supported by sufficient competent evidence for there is a presumption in favor of the regularity of all proceedings in a court of competent jurisdiction, [cit.], we are constrained to affirm the [judgment.]” In re Holly, 188 Ga. App. 202, 203 (372 SE2d 479) (1988). Compare Wagner v. Howell, 257 Ga. 801 (363 SE2d 759) (1988).

2. Thomas has requested in his brief that this court assess ten percent damages for frivolous appeal pursuant to OCGA § 5-6-6. However, without a transcript we are unable to “carefully examine the record ... in the light of the entire history of the case as there presented[,]” and therefore are unable to determine whether the appeal presented a “bona fide contest over a colorable matter.” Prattes v. Southeast Ceramics, 132 Ga. App. 584, 586 (3) (208 SE2d 600) (1974). Accord Newell v. Brown, 187 Ga. App. 9 (369 SE2d 499) (1988). Accordingly, an award of damages is denied.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: McMurray, Presiding Judge.

text:
    75316, 75317.
    AVERY v. KEY CAPITAL CORPORATION (two cases).
    (383 SE2d 909)
    Decided May 25, 1989.

      G. Kennedy McLeod, Jr., for appellant.

      William K. Carmichael, John R. Hunt, Timothy W. Hewett, for appellee.
   McMurray, Presiding Judge.

In accordance with the judgment of the Supreme Court in Key Capital v. Avery, 259 Ga. 133 (376 SE2d 886) (1989), we vacate the judgments of this court in Avery v. Key Capital Corp., 186 Ga. App. 712 (368 SE2d 364) (two cases). The judgment of the Supreme Court is made the judgment of this court and the judgments of the trial court are affirmed.

Judgments affirmed.

Corley, C. J., Deen, P. J., Banke, P. J., Birdsong, Sognier, Pope, Benham and Beasley, JJ., concur.


author: Sognier, Judge.

text:
    A89A0258.
    POLLARD et al. v. MARTIN et al.
    (382 SE2d 720)
   Sognier, Judge.

J. L. Todd Auction Company brought this interpleader action to determine which of the defendants, James and Carol Pollard or Larry Martin, was entitled to funds held by Todd in an escrow account. The defendants filed cross-motions for summary judgment, and the Pollards appeal from the trial court’s order denying their motion and granting Martin’s motion for summary judgment.

The material facts are not disputed. Todd contracted with appellants to auction the real property and inventory of appellants’ sporting goods business. Appellee was the high bidder, and he and appellants entered into a contract dated October 16, 1987 for a purchase price of $98,500. Appellee deposited $24,625 with Todd as earnest money. The sales contract provided for a closing within 31 days, but also gave appellants ninety days after written notice from appellee to cure any title defects. On November 16th appellants met with their banker and appellee’s attorney in an attempt to clear the $97,000 lien held by the bank. Appellee’s counsel informed appellants that other title problems remained, but appellants insisted that the sale be closed the next day. Appellee’s attorney responded with a letter to appellants delivered on November 17th in which he detailed eight remaining title problems, including outstanding security deeds and security interests, unpaid taxes, and a judgment lien. Appellee received no response from appellants, and on January 21, 1988 requested return of the earnest money. Appellants objected, contending they were entitled to the funds as liquidated damages for appellee’s failure to close the sale by the date specified in the contract. Todd then filed this action and deposited the money into the registry of the court.

1. Appellants enumerate as error the trial court’s conclusion that appellee was entitled to summary judgment because of appellants’ inability to tender marketable title as required by the contract, contending that questions of fact remain regarding whether appellee’s title objections are valid and whether appellants can cure the title problems. However, the record reveals appellants did not raise this issue below, but instead based their argument entirely on the theory that appellee had failed to give timely notice of any alleged title defects. As “ ‘[g]rounds which may be considered on appeal are limited to those which were urged before the trial court’ [cit.],” Long v. Marion, 182 Ga. App. 361, 362-363 (1) (355 SE2d 711) (1987), we will not review this issue. See id. Accordingly, the trial court did not err by granting summary judgment to appellee, see generally Hinkley v. Bldg. Material Merchants &c., 187 Ga. App. 345, 346-347 (370 SE2d 201) (1988), or by ruling that appellee was entitled to the escrowed funds. See Higgins v. Kenney, 159 Ga. 736-737, 748 (126 SE 827) (1925).

2. We find meritless appellants’ contention that the trial court erred by denying their motion for summary judgment made on the ground that they were entitled to retain the earnest money as liquidated damages because appellee failed to give written notice of the title objections until the day after the closing date specified in the contract. Time was not of the essence of the contract, as the contract did not so provide, and merely specifying a closing date does not make time of the essence in a contract for the sale of land. Mangum v. Jones, 205 Ga. 661, 667 (1) (c) (54 SE2d 603) (1949). Thus, there was no requirement that appellee tender his notice of title objections prior to the time set for the closing. See Belk v. Nance, 232 Ga. 264, 267-268 (3, 4) (206 SE2d 449) (1974). Unlike the buyer in Real Estate World v. Southeastern Land Fund, 137 Ga. App. 771, 774 (1) (224 SE2d 747) (1976), relied upon by appellants, in the instant case appellee raised specific objections concerning the merchantability of the property and requested that appellants resolve each one before closing. Given that the record does not establish that appellants were entitled to judgment as a matter of law on their breach of contract theory, the trial court properly denied their motion for summary judgment. See generally Bragg v. Missroon, 186 Ga. App. 803, 806 (368 SE2d 564) (1988).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.

Decided May 25, 1989.

Archer & Howell, Shepherd L. Howell, for appellants.

William D. Payne, James S. Garner III, Larry J. Barkley, for appellees.


author: Sogniek, Judge.

text:
    A89A0546, A89A0547.
    STRATTON INDUSTRIES, INC. v. NORTHWEST GEORGIA BANK; and vice versa.
    (382 SE2d 721)
   Sogniek, Judge.

Northwest Georgia Bank (the Bank) brought suit against Printaire Systems, Inc. to obtain a writ of possession for certain carpet dyeing equipment pledged by Printaire as collateral for a loan obtained from the Bank to fund development and manufacture of the equipment. The system had been ordered from Printaire by Stratton Industries, Inc., a carpet manufacturer, and installed at Stratton’s facilities. Stratton moved to intervene in the action filed by the Bank, and its motion was granted. The Bank then asserted claims against Stratton for the unpaid balance of the purchase price, and for damages under various theories. After the close of the evidence at trial, the trial court denied the Bank’s motion for a directed verdict on the issue of Stratton’s liability for the full amount of the purchase price based on its acceptance of the equipment. The jury returned a verdict for the Bank for $191,000 plus prejudgment interest as damages for the decline in value attributable to Stratton’s delay in returning, disposing of, and dismantling the equipment. Judgment was entered thereon and Stratton appeals. The Bank cross-appeals from the trial court’s denial of its motion for directed verdict.

The record reveals that the equipment was the machinery and parts for an innovative method of dyeing carpet using air pressure to force dye foam into the carpet’s pile. It was hoped that the new process would result in dramatic savings in dyes, chemicals, and energy costs. The system consisted of a twelve foot dye head and vertical and horizontal steamers, as well as various other parts and related accessories. The purchase price for the entire system was $581,500. Stratton made a downpayment of $181,000 with its purchase order, which was executed on April 18, 1980 with the balance due in installments, the final installment being due on or before January 2,1981, when the equipment was to have been fully installed and functional. In connection with the purchase order, Printaire also executed a performance agreement, signed by Herman Caldwell, its president, which provided that if the equipment failed to perform as agreed Printaire would refund the downpayment and remove the equipment. On July 15, 1980, three months after Stratton executed the purchase order, the Bank made the first of its loans to Printaire, which in turn executed the first of two security agreements to the Bank, granting the Bank a security interest in the equipment it was developing. In March 1981 Printaire also assigned to the Bank all its accounts receivable, including that of Stratton, and Caldwell personally guaranteed Printaire’s notes to the Bank.

The equipment was installed late and testing began in July 1981 and continued for some months thereafter. Because they were unable to resolve certain persistent problems in the operation of the system, by various letters of agreement Stratton and Printaire repeatedly extended the deadline they had set for proper performance of the equipment, with the final extended deadline being June 15, 1982. However, before reaching that final deadline, in May 1982, Printaire ceased operations and Cherokee Machinery, the company actually constructing the machinery for Printaire, filed for protection from its creditors under the bankruptcy laws. The Bank then commenced efforts to gain possession of the collateral or otherwise secure payment of the Printaire loans.

After complex negotiations among Stratton, the Bank, and Caldwell fell through, Burton M. Gold, Stratton’s chief executive officer, sent separate but identical letters to Carl Griggs and Caldwell, two of the three principals in Printaire (the third had left the country), dated February 15,1983, in which Stratton unequivocally rejected the equipment and demanded a refund of all monies paid. In the letter, Gold alleged that Stratton had paid $193,698.35 under the purchase order and was thus owed that sum by Printaire under the performance agreement. The letter stated that “[a]s this equipment has not proven to be satisfactory, Stratton hereby requests a prompt full refund . . . and the subsequent removal of the equipment from its Main Plant . . . .” No response was received to the letter, and the equipment remained at Stratton’s facility for the next nine months in virtually the same condition.

In November 1983, Stratton began efforts to modify the Printaire equipment, other than the dye head, so that at least portions of it, including the steamers, might be made to work with a dye head ordered from another manufacturer. Finally, Stratton dismantled the equipment, using neither the dye head nor the steamers manufactured by Cherokee for Printaire, but incorporating certain other minor portions of the equipment into a new dyeing system. The remainder of the equipment was stored. In 1987, long after Stratton had intervened in this action, Stratton advised the Bank that it would no longer store the remaining unused portions of the original equipment, and after advising the Bank that it would do so, removed and retained some other parts of the system and returned the rest to the Bank. After storing the returned equipment briefly, the Bank sold it for $5,000.

1. We first consider the cross-appeal, in which the Bank asserts that as a matter of law Stratton accepted the equipment because Stratton’s actions in modifying the equipment, dismantling it improperly, and using parts of it constituted acts inconsistent with Printaire’s ownership, and thus the trial court erred by denying its motion for a directed verdict on that issue. Noting that OCGA § 11-2-606 (1) (c) provides that despite an attempt at rejection “[acceptance of goods occurs when the buyer . . . [d]oes any act inconsistent with the seller’s ownership,” the Bank argues that retention and use or modification of goods have been held to be such acts as are inconsistent with the seller’s ownership, citing W. M. Hobbs, Ltd. v. Accusystems of Ga., 177 Ga. App. 432 (339 SE2d 646) (1986), and Fiat Auto U. S. A. v. Hollums, 185 Ga. App. 113 (363 SE2d 312) (1987). These abstract principles of law, although otherwise correct, are inapplicable here. In both W. M. Hobbs and Hollums the purchasers were dealing with already manufactured goods bought from dealers who remained in business and could have been contacted had the purchasers actually desired to return the goods. Instead, those purchasers, while notifying the sellers of their desire to reject the goods, also continued to use the goods.

In the case sub judice, the record reveals that the equipment was not in existence when ordered by Stratton. There is no dispute that the equipment being developed was new and revolutionary in the field of carpet dyeing. It is also uncontroverted that Stratton had paid some $193,000 toward the purchase of the equipment, that the equipment did not function satisfactorily, and that Stratton waited 9 months for Printaire (or the Bank) to respond appropriately to its letters of rejection before attempting to take some action to salvage its investment.

Although the Bank argues that it sought to recover the equipment and was refused by Stratton, and although the record reveals that negotiations took place between Stratton and the Bank with a view toward returning at least portions of the equipment and crediting Stratton with the amount it had paid for the nonfunctioning equipment as part payment for some other parts, the record reveals no offer by the Bank, as Printaire’s assignee, to refund Stratton’s downpayment. On the contrary, the evidence shows that in February 1983, Stratton made an absolutely unequivocal demand that Printaire remove the equipment and refund Stratton’s money, to which the Bank, although aware of Stratton’s February 1983 letter, made no response.

“ ‘In reviewing the overruling of a motion for a directed verdict, the proper standard to be utilized by the appellate court is the “any

evidence” test. (Cits.)’ [Cit.]” Summerour v. St. Joseph’s Infirmary, 160 Ga. App. 187, 188 (286 SE2d 508) (1981). Under the circumstances presented here, viewing the evidence in the light most favorable to Stratton, as required, see Concrete Constr. Co. v. Atlanta, 176 Ga. App. 873, 874 (2) (339 SE2d 266) (1985), we find some evidence existed that Stratton’s actions after its unequivocal rejection (i.e., modifying, altering, and using parts of the equipment) were undertaken to protect the investment it had made which, in view of Printaire having ceased operations and the lack of response to its letters, Stratton felt it had little hope of recovering. Thus, there existed a fact question to be determined by the jury as to whether Stratton’s actions constituted acts inconsistent with Printaire’s ownership. The jury was instructed in that regard and returned a verdict which indicates the jury did not find an acceptance. Accordingly, the trial court did not err by denying the Bank’s motion for directed verdict. See generally Scott v. Hussmann Refrigeration, 183 Ga. App. 39, 40 (1) (357 SE2d 860) (1987).

2. Turning to the main appeal, Stratton contends the trial court erred by awarding prejudgment interest on the verdict because the jury awarded damages on a tort theory, and because the claim was unliquidated. We do not agree with either argument made by Stratton, and affirm the award of prejudgment interest.

(a) The verdict form alternative chosen by the jury awarded damages to the Bank “for the decline in value attributable to [Stratton’s] delay in returning, disposing of and dismantling the [e]quipment.” The wording of this alternative embraced three different theories of recovery against Stratton offered by the Bank at trial: conversion and tortious interference with its contract with Printaire, both of which sound in tort, and a failure to comply with the UCC, which sounds in contract. See generally UIV Corp. v. Oswald, 139 Ga. App. 697, 700 (229 SE2d 512) (1976). The jury was instructed that should they award damages to the Bank, if their award was based on either of the tort theories, punitive damages were awardable, but if their award was based on breach of contract, prejudgment interest could be awarded “at the rate of twelve percent from the time of breach until the time of recovery.” The jury returned a verdict which included 12 percent interest from November 1983.

“ ‘The verdict may be construed in the light of the pleadings, the issues made by the evidence and the charge. (Cits.) . . . The presumptions are in favor of the validity of verdicts, and if possible a construction will be given which will uphold them. (Cit.) Even if the verdict is ambiguous . . . and susceptible of two constructions, one of which would uphold it and one of which would defeat it, that which would uphold it is to be applied. (Cit.)’ [Cit.]” West Ga. Pulpwood v. Stephens, 128 Ga. App. 864, 870 (198 SE2d 420) (1973). See also Rucker v. Camden Tel. &c. Co., 181 Ga. App. 504, 505 (353 SE2d 50) (1987). Thus, if possible, we must construe the verdict as based on the Bank’s contract theory, because only that theory allows us to uphold the jury’s verdict in its entirety, including the award of interest.

Although we have found in Division 1, supra, that Stratton did not accept the equipment, and thus is not liable for the entire purchase price, nevertheless it may be liable in damages to the Bank because its retention of the equipment as security for the return of its downpayment placed it in the relationship of a secured creditor vis-avis Printaire (and its assignee, the Bank), and made it subject to the requirement in OCGA § 11-9-504 that it treat the equipment in a commercially reasonable manner.

Evidence was presented at trial which was sufficient to authorize the jury to conclude that Stratton’s treatment of the equipment was not commercially reasonable, thus exposing Stratton to liability for damages for the equipment’s decline in value. Accordingly, we presume the jury’s verdict was based on Stratton’s breach of its duty under the UCC, West Ga. Pulpwood, supra, and affirm the award of prejudgment interest.

(b) OCGA § 13-6-13 provides that “[i]n all cases where an amount ascertained would be the damages at the time of the breach, it may be increased by the addition of legal interest from that time until the recovery.” In Norair Engineering Corp. v. St. Joseph’s Hosp., 147 Ga. App. 595, 604-606 (6) (249 SE2d 642) (1978), this court held that prejudgment interest may be awarded in a contract case. In Braner v. Southern Trust Ins. Co., 255 Ga. 117, 119 (335 SE2d 547) (1985), the Supreme Court held that a jury in its discretion may make a separate award of interest in contract cases even where the damages are not liquidated. See also Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576, 579-580 (2) (373 SE2d 758) (1988). Hence, the award of interest was entirely proper.

(c) Stratton failed to object to the court’s charge instructing the jury that it could award 12 percent interest from the date of a breach of contract, and thus it cannot now complain that the rate is improper. See generally Financial Bldg. &c. v. St. Charles &c. Co., 145 Ga. App. 768, 771 (3) (244 SE2d 877) (1978).

3. Finally, Stratton contends the trial court erred by finding as a matter of law that the Bank had a security interest in all of the equipment because the security agreements between the Bank and Printaire do not specifically list the steamers as part of the collateral. We find no merit in this contention.

First, we find the language of the security agreements giving the Bank an interest in all the equipment clear and unambiguous. Although the 1980 security agreement does not specifically list the steamers, the document does convey a security interest in a dye head “[c]omprised of: [various listed items] and on the ancilliary (sic) equipment.” The contract language fails to support Stratton’s argument that the ancillary equipment is one of the items of which the dye head is comprised. Rather, the language plainly indicates that the document conveys a security interest both in the dye head and its components and also in the ancillary equipment, which obviously includes the necessary steamers.

Stratton’s contention also overlooks the language in the security agreement giving a security interest in “the following described property together with all accessions thereto.” (Emphasis supplied.) OCGA § 11-9-314 defines accessions as goods which are “installed in or affixed to other goods.” Accessions have also been defined as “goods of such a nature as to form an ‘integral part’ of the [whole] ‘and are so attached to it, that (they) are one and the same thing under the accession rule.’ [Cits.]” Glenn v. Trust Co. of Columbus, 152 Ga. App. 314, 317 (262 SE2d 590) (1979). The steamers were affixed to and installed in the system and the system was sold as one integrated whole. Thus, the steamers would be included in the collateral as accessions even if they were not included elsewhere in the description.

Similarly, contrary to Stratton’s argument, we find the language in the 1981 security agreement is clear in including the steamers in the description of the collateral, which includes “the following described property together with all accessions thereto[:] 1 - 12 Foot CFD II Printaire Foam Dye Carpet Dying (sic) Machine with Manufacturer’s ID # A-80-003 located at Stratton Industries, Inc.,” since that description includes not only the dye head, but the entire system, including the steamers, which comprises the “Carpet Dy[e]ing Machine.”

Second, however, even if the language in the security agreement were to require construction, “[t]he proper construction of a written contract is generally a question of law for the court. [Cit.]” Shore v. Loomis, 187 Ga. App. 674, 675 (1) (371 SE2d 96) (1988). “ ‘The existence or non-existence of ambiguity is always a question of law for the court, [cit.]’ [cit.],” Stover & Sons, Inc. v. Harry Norman, Inc., 187 Ga. App. 514, 515-516 (2) (370 SE2d 776) (1988), and “ ‘[t]he cardinal rule of construction (of a contract) is to ascertain the intention of the parties.’ [Cit.]” Giddens Constr. Co. v. Fickling & Walker Co., 188 Ga. App. 558 (2) (373 SE2d 792) (1988). Caldwell testified that “[a]ncillary equipment is everything that goes with the dye head, the dye head being the primary part of the system and everything else is ancillary to that, that was included with that purchase order,” and that was what he understood Printaire was assigning to the Bank. Moreover, both Wesley Smith, the Bank’s president, and Caldwell testified that it was the understanding between the Bank and Printaire that the Bank agreed to make the loan to Printaire upon the condition that the Bank would have a security interest in all the equipment being fabricated, and both principals testified that it was the parties’ intention that the steamers be included in the collateral. Therefore, any ambiguity in the contract as to the inclusion of the steamers in the collateral was eliminated by the use of principles of contract construction to ascertain the intention of the parties, and the trial court was authorized to find that the Bank had a security interest in all the collateral, including the steamers. See Shore, supra at 675 (1).

Decided May 25, 1989.

Alston & Bird, W. Terence Walsh, Donna P. Bergeson, for appellant.

Hansell & Post, R. Matthew Martin, Clifton M. Patty, Jr., for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0039.
    POUNDS et al. v. HOSPITAL AUTHORITY OF GWINNETT COUNTY.
    (382 SE2d 602)
   Deen, Presiding Judge.

Appellant Pounds operated an ambulance service in Gwinnett County, Georgia, for several years prior to the incidents giving rise to the action below. In July 1981 Pounds, doing business as Gwinnett Ambulance Service, Inc. (Gwinnett Ambulance), was granted by the Gwinnett County Hospital Authority (the Authority) an exclusive five-year franchise to provide both primary (from scene of illness/injury to local hospital) and secondary (from hospital to another, more specialized or otherwise more appropriate treatment facility) transport for ill or injured persons within the county. The franchise agreement contained clauses pertaining to nature and quality of services and equipment and provided a fee schedule which included a clause stating that any price increases made for each successive year of the duration of the franchise would be based upon the consumer price index for the preceding year. There were also clauses providing that the agreement could be terminated by either party prior to the end of the specified five-year term or “for a violation of the terms thereof,” upon ninety days’ notice; and also that upon termination the county would purchase the ambulances and other equipment.

In August 1982, slightly more than one year into the five-year span of the franchise, the Gwinnett County Hospital Authority, with the approval of the county’s Board of Commissioners, arranged to buy out the remaining term of Pounds’/Gwinnett Ambulance’s franchise with respect to primary transport (as defined, supra) but to give him the exclusive right to provide secondary transport. It was understood by all the parties that such transport would be provided (and billed for) by Metro Ambulance Services, a corporation wholly owned by Pounds. Relevant portions of the latter agreement were as follows:

“11. Miscellaneous.
“(a) Time is of the essence of this contract.
“(k) Agreement Not to Compete. During the term of this agreement, and for a period of ten (10) years thereafter, Seller shall not, except with the written consent of Purchaser, engage in any business the same as or similar to the business covered by this Agreement within the boundaries of Gwinnett County, Georgia. More specifically, Seller shall not engage in, either directly or indirectly in any manner, financing, consulting, advising or participating in any business, association, partnership, sole proprietorship, or corporation which performs any of the services the same as or similar to the business covered by this Agreement, including but not limited to convalescent transport for the elderly, within the boundaries of Gwinnett County, Georgia, for the period specified above.
“The business covered by this agreement is an emergency ambulance service. The service provides for the emergency transport of the aged, infirmed [sic] and injured.
“(m) Secondary Transport.
“Seller [Pounds] shall have exclusive rights of ‘secondary transport’ for the Purchaser [the Authority]. ‘Secondary transport’ means transportation of patients requiring the use of a helicopter or a mobile intensive care unit.
“Seller agrees to provide this secondary transport at a discounted cost to Purchaser of twenty percent (20%) less than the current price charged by Seller for these services. The annual increase in this price paid by Purchaser to Seller for secondary transport shall not exceed the percentage increase in the Consumer Price Index for the previous year.
“Upon the invitation of the Purchaser, Seller also agrees to provide secondary ground assistance in emergency situations beyond the capacity of the Purchaser.” Although the first of the provisions under “Miscellaneous,” supra, states that “[t]ime is of the essence of this contract,” nowhere in the agreement itself is its duration specified. The sole references to specific time periods are the 10-year covenant not to compete; the phrase regarding “annual increase” and “the previous year” in subsection 11. (m), supra; and a guarantee (subsection 6 (g)) that the seller will buy back the assets for a specified price, “at the end of one year upon the written request of the purchaser.”

During the first year under the agreement, Pounds, through Metro, provided secondary transport by means of two helicopters which he had purchased and also by means of a specially equipped ground unit; additionally, as provided in the agreement, he furnished primary transport (through Metro) when called upon to do so. Through Metro, Pounds sent to the Authority bills showing 100 percent of the cost of each service, and the Authority deducted 20 percent of the cost as billed and remitted the remaining 80 percent. At the end of that year the Authority informed Pounds that it was terminating his exclusive franchise for secondary transport and that, for such calls as might be referred to him, he would have to bill the patients directly. (The record is unclear as to how this actually worked out; e.g., the Authority alleges that Pounds did not continue to offer the 20 percent discount, but Pounds counters that the billing was consistently done in the same manner, and that it was the Authority which, on its own initiative and without prior notice, at the end of the first year ceased to deduct 20 percent but remitted 100 percent of the amount billed to it.)

In January 1987 Pounds, both individually and as Gwinnett Ambulance Service, Inc., filed a complaint against the Authority, seeking a declaratory judgment and damages. He alleged that the ten-year covenant not to compete violated Art. Ill, Sec. VI, Par. V (c) of the Georgia Constitution and that the Authority had breached the contract by honoring the exclusive franchise for secondary transport for only one year. He subsequently contended that the secondary transport franchise was coterminous with the covenant not to compete or, alternatively, was, like the 1981 contract, of five years’ duration. The Authority answered, alleging inter alia that Pounds had breached the contract by (a) assigning the franchise to Metro without the Authority’s written permission and by (b) failing to provide the agreed-upon 20 percent discount on secondary transport; the Authority further alleged that Pounds’ (i.e., Metro’s) response times had not been completely satisfactory on either primary or secondary transport calls.

In April 1988 the Authority moved for summary judgment, alleging (1) that Metro, not Pounds or Gwinnett Ambulance Service, was the proper plaintiff and that Metro, not being a party to the agreement, had no enforceable rights and therefore lacked standing to sue; (2) that the maximum possible term for the duration of the secondary transport franchise was the term of the original franchise, or 3-Vz years from the date of execution of the purchase/sell agreement; (3) that when a contract does not specify a time limit for performance, the law implies a reasonable time, and that if a seeming ambiguity exists concerning time of performance (or any other essential term of the contract), it is the duty of the trial court to determine the existence of the ambiguity vel non and to apply the rules of construction. The Authority further alleged that the covenant not to compete was reasonable and therefore enforceable.

In opposing the motion Pounds urged that the issue of the constitutionality of the covenant not to compete be reserved until the hearing. He argued that there had been no assignment of the franchise because the Authority had known from the inception of the agreement that service would actually be provided by Metro and that Pounds was Metro’s sole owner. He further contended that the Authority’s knowledge concerning Metro and its acceptance of Metro’s services amounted to a waiver of the alleged breach. The motion was denied.

The record reveals that the trial court closely questioned witnesses and counsel for both parties as to the language of the contract and the intent underlying the various provisions, and expressed some surprise at learning that an attorney — specifically, counsel for the Authority — had drafted the agreement. Conflicting testimony was offered regarding the original understanding as to the duration of the agreement and also regarding response times in answering calls for secondary and primary transport. After making findings of fact and conclusions of law, the court entered an order holding (1) that plaintiff had not met his burden of proof in establishing a time of performance for the agreement’s secondary transport provision; (2) that because neither party had established a time frame for performance, the secondary transport provision was terminable at will and the Authority had therefore acted properly in terminating it; (3) that Pounds had breached the contract by failing to provide consistently fast emergency transport during the first year of the agreement. Pounds appeals, alleging that the trial court erred in failing to construe the contract so as to find a reasonable term for the secondary transport provision of the contract, and in finding that Pounds’ performance was untimely. Held:

1. We first address appellant’s second enumeration of error. According to the record, Pounds’ (or Gwinnett Ambulance’s) duty under the 1982 contract was to provide secondary transport on a regular basis, and to provide primary transport only when the Authority called upon him to do so. Although a representative of the Authority offered testimony that Pounds’ performance was “unsatisfactory” and not always timely (allegations which Pounds denied), no written records or other competent primary evidence to substantiate this testimony was adduced at the hearing. Moreover, Pounds testified without contradiction that after the first year of the contract had passed, the Authority had called upon Metro (i.e., Gwinnett Ambulance) for secondary transport only twice, and primary transport on only a few occasions. Since the agreement by its terms imposed upon Pounds (or Gwinnett Ambulance) a duty to provide secondary rather than primary transport on a regular basis, and since the evidence was undisputed that Pounds was requested to provide secondary transport on only two occasions after the first year, the alleged deficiencies in performance would hardly seem, from the standpoint of statistical validity, to have a solid basis in fact — and therefore would not rise to the level of sufficiency to carry the appropriate evidentiary burden, absent documentation or other corroborative evidence. As it is the prerogative of the appellate court to determine the sufficiency of evidence adduced at trial, we find that the trial court erred in holding that Gwinnett Ambulance’s performance was so deficient as to constitute a “violation of the agreement.”

2. When a written contract or agreement appears to be incomplete, or its terms inconsistent with one another, it is the duty of the trial court to construe that contract or agreement, OCGA § 13-2-1, applying the rules of construction set forth in OCGA § 13-2-2. Where the writing is incomplete on its face, parol evidence is admissible to assist in determining the parties’ intent. Preferred Risk Mut. Ins. Co. v. Jones, 233 Ga. 423 (211 SE2d 720) (1975); Thomas v. Clark, 178 Ga. App. 823 (344 SE2d 754) (1986). In construing a contract, the court must look to the four corners of the instrument. McCann v. Glynn Lumber Co., 199 Ga. 669 (34 SE2d 839) (1945); Brooke v. Phillips Petroleum Corp., 113 Ga. App. 742 (149 SE2d 511) (1966). When, after application of the rules of construction, there appears to be an ambiguity, it must be resolved by the finder of fact against the draftsman: in the instant case, the Authority. OCGA § 13-2-2 (5); Hill v. John P. King Mfg. Co., 79 Ga. 105 (3 SE 445) (1887). The contract sub judice specifies that time is of the essence but states no time period for its duration.

After close scrutiny of the entire record, and especially of the contracts/agreements and the trial transcript, we are persuaded that the reasonably prudent person would regard the agreement at issue not as a terminable-at-will agreement (despite the possible import of the inclusion of a for-cause termination clause), but rather as a multiyear contract the duration of which would be coterminous either with the 1981 five-year franchise bought out by the Authority, or possibly with the ten-year (actually, ten years plus the unspecified term of the franchise agreement) covenant not to compete contained in the agreement at issue here; or which, alternatively, might be construed as having an independent five-year duration analogous with that of the franchise purchased by the Authority in 1982. The language cited, supra, which alludes to “ten years,” “annual increase,” etc., would make no sense and would therefore be rendered mere surplusage if it were interpreted otherwise. The law does not favor such a construction. See Board of Regents v. A. B. & E., Inc., 182 Ga. App. 671 (357 SE2d 100) (1987).

Decided April 19, 1989

Rehearing denied May 26, 1989

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, for appellants.

Webb, Fowler & Turner, Anthony O. L. Powell, for appellee.

Moreover, Pounds testified without contradiction that a part of the consideration for his entering into the ten-year covenant not to compete, and thereby surrendering his exclusive right to provide primary transport for that period of time, was his understanding that during that same ten-year (or ten-year plus) period, as a quid pro quo, he would have the exclusive right to provide secondary transport. This testimony was not rebutted but was corroborated by the testimony of others. Moreover, nothing in the minutes of the Gwinnett County Commissioners, as proffered in evidence, is inconsistent with this characterization of the intent underlying the agreement.

We agree with appellant that it was the duty of the trial court to construe the contract, not the duty of the plaintiff (who had not drafted the contract) to “prove” the existence and nature of the missing term. See OCGA § 13-2-2; Western Contracting Corp. v. State Hwy. Dept., 125 Ga. App. 376 (187 SE2d 690) (1972). The rule is that a contract (or segment thereof) involving a possible ambiguity must first be construed by the court, applying the rules of construction set forth in OCGA § 13-2-2. See also OCGA § 13-2-1.

We do not favor judgment by abdication. We therefore remand this case to the trial court for determination of the duration of the contract (3- Vi years, 5 years, 10 years, or another term), in accordance with the considerations delineated, supra.

Judgment reversed; case remanded for proceedings consistent with the above.

Birdsong and Benham, JJ., concur.


author: Birdsong, Judge.

text:
    A89A0382.
    LDS SOCIAL SERVICES CORPORATION et al. v. RICHINS et al.
    (382 SE2d 607)
   Birdsong, Judge.

This action was brought by Victoria and Scott Richins, as parents of Tiffany Richins, and by Scott Richins, as administrator of Tiffany’s estate. Tiffany was eleven years old, but had a mental age of only three to four years. The case arose from Tiffany’s death after her placement for foster care in the home of Allen and Birdie Lou Weaver through the involvement of the Church of Jesus Christ of Latter-Day Saints (the Church), the Corporation of the President of the Church (COP), the LDS Social Services Corporation (LDS), Paul Evans, Doyle Hotter, and Dean Black. Tiffany’s placement in the Weavers’ home for foster care was made through LDS, a Utah non-profit corporation licensed by Georgia to provide social services. Doyle Hotter and Dean Black were licensed counselors with LDS and took an active part in placing Tiffany with the Weavers, who had been recommended as possible foster parents by Paul Evans, a Bishop of the Church and leader of the Church’s congregation in Chamblee, Georgia, where the Weavers and the Richins were members. The COP, LDS, Black, Hotter, and Evans are the appellants in this action.

Tiffany was first placed in foster care by arrangements made by her mother through the auspices of the Church and LDS. In 1980, the Richins moved to Hawaii, leaving Tiffany behind in Georgia with the Chamblee church congregation paying for her foster care. LDS began looking for a foster home for Tiffany in Hawaii, but was unsuccessful. Then the person caring for Tiffany decided to end her foster care, and LDS was faced with promptly finding another foster home. Because of various problems in locating another foster home, finding foster care for Tiffany became an immediate necessity. Bishop Evans knew the Weavers and suggested them to LDS. Under the circumstances, LDS approved the placement without a formal pre-placement evaluation of the Weavers. The Weavers accepted Tiffany in their home because the Church requested it, even though they had received no training in foster parenting, and no orientation, materials or guidance from LDS on the needs and care of one with Tiffany’s mental retardation.

On September 8, 1980, Allen Weaver came home from work and decided that Tiffany needed to be disciplined. He has admitted slapping her “seven, eight, nine times,” and pushing her head into the carpeted floor. Mrs. Weaver said that her husband told her something was wrong with Tiffany — “[s]he can’t seem to breathe.” The Weavers took Tiffany to the hospital emergency room. The neurosurgeon who operated on Tiffany said he observed “multiple contusions or bruises over her body,” and diagnosed her as having a “subdural hematoma,” a blood clot on the brain caused by the rupture of the veins connecting the brain with the brain covering. The doctor testified that “it takes a very significant amount of force to rupture these veins” in a child. Tiffany died on April 26, 1981, from complications arising from her original injury. Her parents filed this action for her wrongful death and their medical and funeral expenses, and her father, as administrator of her estate, also sought damages for her pain and suffering as well as punitive damages.

At the close of the evidence, all defendants moved for a directed verdict, which the trial court denied. The jury returned a verdict for the plaintiffs against the Church, LDS, Kotter, Black, and Evans. The jury found for the COP on all counts, and the jury specifically found for the Weavers on all counts, except the count seeking damages for pain and suffering but they awarded no damages against the Weavers for Tiffany’s pain and suffering. Damages were awarded to the parents in the amount of $153,103 for funeral and medical expenses and $100,000 for the full value of Tiffany’s life. Damages were also awarded to the administrator of Tiffany’s estate for $750,000 for punitive damages. No damages were awarded for Tiffany’s pain and suffering against any defendant. Judgment was entered on the verdict on May 6, 1987, and the appellants made a motion for judgment notwithstanding the verdict on May 15, 1987. This motion was also in the alternative to amend the judgment or to strike portions of the judgment. The trial court granted the motion notwithstanding the verdict as to the Church, but denied the motion as to the remaining appellants on December 8, 1987. The appellants filed their notice of appeal on December 23, 1987. The appellees thereafter on January 7, 1988, pursuant to a nunc pro tunc order filed January 12,1988, filed a motion for a new trial on the grant of judgment notwithstanding the verdict to the Church. The appellees’ motion was denied on September 12, 1988. Held:

1. The appellees have filed two motions to dismiss the appeal. The principal thrust of the first motion is two-pronged: (a) All appellants who moved for a directed verdict at the close of the evidence were not proper parties in the later motion for judgment notwithstanding the verdict (JNOV) or to amend or strike the judgment and thus were not entitled to the tolling period for motions JNOV provided in OCGA § 5-6-38 (a), and (b) all enumerations of error, except the denial of the motion JNOV, are not appropriate for consideration by this court on appeal.

(a) At the close of the evidence, the Church, COP, LDS, Kotter, Black and Evans moved for a directed verdict. The basis for the motion as to each appellant, but LDS, was listed. This motion was denied as to all appellants, and after the trial court considered other matters, the “church defendants,” i.e., all defendants other than the Weavers, made another motion to the effect that there was insufficient evidence to submit any issue of punitive damages against any of the church defendants to the jury. The trial court denied the motion, ruling that this was a jury question. Although the jury verdict and the judgment did not include a finding of liability of the COP, all appellants filed a motion for JNOV or in the alternative to amend or strike the judgment on behalf of all defendants/appellants on numerous grounds.

Admittedly the church defendants’ motion on punitive damages was not a model of clarity, and it was not titled a motion for directed verdict. The failure to give the motion the proper title, or any title, however, is not controlling. Jones v. Spindel, 128 Ga. App. 88, 103 (196 SE2d 22). During the trial, the only way an issue may be eliminated from the consideration of the jury is with a motion for directed verdict, Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858, 862 (360 SE2d 418), and whether punitive damages should be submitted to the jury is within the scope of a motion for directed verdict. Miller &c. Assoc. v. Diedrich, 174 Ga. App. 249, 256 (329 SE2d 918), reversed in part on other grounds, 254 Ga. 734 (334 SE2d 308). Consequently, while no name was given to this motion, it is the substance and function of the motion which is determinative and not the name. Holloway v. Frey, 130 Ga. App. 224, 227 (202 SE2d 845). Further, that this motion was not made immediately after the close of all the evidence is no defect. Anderson v. Universal C.I.T. Credit Corp., 134 Ga. App. 931 (216 SE2d 719). Considering the substance of the church defendant’s motion, it was a motion for directed verdict on the issue of punitive damages and stated as grounds the insufficiency of evidence to submit the issue to the jury. Thus, LDS, which is one of the church defendants, made a motion for directed verdict for which the ground was specified, and, even accepting the appellees’ legal argument, LDS could properly make a motion for JNOV, at least on this one issue. Accordingly, the motion JNOV would toll the time in which all appellants could file their notice of appeal. OCGA § 5-6-38 (a). As we find no factual support for this part of the appellees’ motion to dismiss the appeal, we need not address the legal conclusions they would have us draw therefrom and we express no opinion on their validity.

(b) Because all appellants are proper party appellants, they can enumerate error, under OCGA § 5-6-34 (c) any and “all judgments, rulings, or orders rendered in [this] case . . . which may affect the proceedings below . . . without regard to the appealability of the judgment, ruling or order standing alone. . . .” Thus, we find no merit to the appellees’ claim that we should consider only the enumeration of error that the motion JNOV was improperly denied. Accordingly, the appellees’ first motion to dismiss the appeal is denied, and we will consider the other proper enumeration of error necessary to decide this appeal.

(c) The appellees also moved to dismiss the appeal because the notice of appeal filed by the appellants on December 23, 1987, allegedly was filed prematurely because the appellees, on January 7, 1988, filed a motion for a new trial against the Church under OCGA § 9-11-50 (c) (2), which grants authority for parties to make such a motion following the grant of a motion JNOV against them. The appellees argue that the earlier notice of appeal was ineffective, and, as no notice of appeal was filed by the appellants after the denial of the appellees’ motion for a new trial against the Church on September 12, 1988, this court lacks jurisdiction to hear the appeal. Pretermitting the timeliness of the appellees’ motion for new trial, the law is against them. The cases they rely on stand for the opposite factual circumstance where the motion for new trial predated the notice of appeal. The subsequent filing of a motion for new trial does not deprive the previously filed notice of appeal of its effectiveness. Housing Auth. &c. v. Geter, 252 Ga. 196, 197 (312 SE2d 309); Rich v. Ga. Farm &c. Ins. Co., 176 Ga. App. 663 (337 SE2d 370).

Moreover, there is some question that the appellees’ motion for new trial was not timely filed. Though filed through a nunc pro tunc order, in effect the appellees sought and received an extension of time in which to file their new trial motion. Extensions of time in which to file motions for new trial are expressly prohibited, OCGA §§ 9-11-6 (b) and 5-6-39 (b), and whether such can be extended through a nunc pro tunc order in emergency situations as alleged need not be addressed here in view of our other disposition of the motion. This motion is also denied.

2. Appellants enumerate as error the refusal of the trial court to “enter judgment in favor of Appellants on the grounds that the jury’s finding in favor of the Weavers, the persons directly responsible for the injuries at issue, entitled the Appellants to judgment as a matter of law. . . .” We agree and reverse.

The jury reached a verdict in favor of the Weavers, either by finding for them specifically or by awarding no damages against them. This constitutes a finding that the Weavers were not liable for Tiffany’s death. If the Weavers were not liable for her death, there can be no liability on the part of those who placed Tiffany with the Weavers, or who were responsible for supervising the foster care after placement. ESAB Distrib. v. Flamex Indus., 243 Ga. 355, 357 (254 SE2d 328); Duke Trucking Co. v. Giles, 185 Ga. App. 833, 836 (366 SE2d 216). The verdict is inconsistent, contradictory, and repugnant. “ ‘A verdict that is contradictory and repugnant is void, and no valid judgment can be entered thereon. A judgment entered on such a verdict will be set aside.’ ” Four Oaks Homes v. Smith, 153 Ga. App. 326 (1) (265 SE2d 76); accord Miller &c. v. Diedrich, supra; Wade v. Culpepper, 158 Ga. App. 303, 305 (279 SE2d 748).

We have considered whether any independent negligent act of the appellants standing alone would support a verdict against them, as the appellees suggest, and have found none which would support the verdict. The cases cited to our attention by the appellees all stand for the proposition that an independent act of negligence by the principal or employer will sustain a judgment when the agent or employee causing the injury is relieved of liability. See Colonial Stores v. Fishel, 160 Ga. App. 739 (288 SE2d 21). That is not the case here. There were no independent acts of the appellants which operating without the actions of the Weavers caused Tiffany’s death. Under these circumstances, the judgment against the appellants cannot stand.

In view of our treatment of this issue, it is not necessary for us to consider the appellants’ other enumerations of error.

Judgment reversed.

Deen, P. J., and Benham, J., concur.

On Motion for Rehearing.

The appellees have moved for rehearing asserting that we have overlooked certain controlling authorities. In particular, they find inconsistency between the decision in Overground Atlanta v. Dunn, 191 Ga. App. 188 (381 SE2d 137) (1989) and our opinion here. We find to the contrary. In Overground this court found that there was a separate independent basis for liability for the owner which would support the damages even though the employee who apparently caused the injuries was not found liable. Such is not the case here. Further, in Overground we found that the verdict was not inconsistent where the jury made no finding in regard to liability of the employee, but found against the owner. Such was also not the case here. The jury in this case specifically found in favor of the Weavers, except in one instance, and in that instance, although finding against the appellants, the jury specifically awarded no damages against any defendant. Under the verdict rendered by the jury in this case on the form prepared by appellees’ counsel, there was no finding against the Weavers which would support the award of damages against the appellants.

The appellees also find fault with our failure to distinguish the case of McBerry v. Ivie, 116 Ga. App. 808 (159 SE2d 108). We are hard pressed to understand their reliance upon McBerry. In McBerry the jury awarded damages against both the son and the father. Consequently, the case cannot stand for the proposition the Richins assert: that the father may be held liable even though the son is found not to be liable. The McBerry case has no application to the present case.

The decision in. Colonial Stores v. Fishel, 160 Ga. App. 739 (288 SE2d 21) also does not conflict with our decision here. In Colonial Stores there was again a separate basis for holding the owner liable when no damages were assessed against the employee. See 160 Ga. App. 740-741. Here we have found no basis for holding the other defendants liable when the jury did not find the Weavers to be liable. Significantly, the appellees have not identified any theory of liability which is not dependent upon the actions of the Weavers for imposing liability. Assuming that the child was negligently placed with the Weavers, that the Weavers were not properly trained, and that the Weavers were not visited, the appellees still have not identified even now some action, which apart from the attack by Mr. Weaver, was the proximate cause of the damages to Tiffany Richins. See Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693). Under these circumstances, the findings against the appellants cannot stand.

Decided April 28, 1989

Rehearing denied May 26, 1989

Smith, Gambrell & Russell, Harold L. Russell, William W. Maycock, Edward H. Wasmuth, Jr., for appellants.

Davis, Brofman, Zipperman & Kirschenbaum, E. Marcus Davis, Steven A. Suna, Bennett, Williams & Henry, Benjamin S. Williams, Phillip J. Walsh, John L. Blanford, for appellees.

The appellees are mistaken about the effect of OCGA § 5-6-34 (c) and would, if their argument has followed, impose a requirement to make a motion for new trial in virtually every case. That is not the law. The appeal in this case was timely and the issues considered were appealable under OCGA § 5-6-34 (c). See Executive Jet Sales v. Jet America, 242 Ga. 307, 308 (248 SE2d 676). Further, we remain satisfied that the motion made by the church defendants, which under the terminology used during the trial included the LDS Social Services Corporation, was a motion for directed verdict sufficient to permit the corporation to make a motion JNOV. Although not termed a motion for directed verdict, that was the function of the motion. See Holloway v. Frey, 130 Ga. App. 224 (202 SE2d 845).

Although not cited in their argument, the Richins have directed our attention to Taylor v. Ledbetter, 818 F2d 791 (11th Cir. 1987), a 42 USC § 1983 action against state officials acting under color of state law. We find no inconsistency between the Taylor case and the result here as it did not address any of the issues in this case.

Motion for rehearing denied.


text:
    A89A0726.
    LANCE v. THE STATE.
    (382 SE2d 726)
   Birdsong, Judge.

Appellant James Lance appeals his conviction of possession of methamphetamine, no proof of insurance, and violation of the Drivers Licensing Act by driving a motor vehicle after being declared a habitual violator and having his license revoked; appellant also appeals his sentence.

On or about December 1-3, 1986, appellant negotiated the purchase of an automobile. He was given permission to test drive it for a few weeks apparently before finalizing the sale. As appellant was on the way home, the car developed transmission problems, and he parked it near a friend’s house. On December 25, 1986, appellant and the co-defendant, Steve Dale, retrieved the vehicle. Appellant and Dale drove in the car to look at another transmission. En route, appellant was observed by Deputy Jessee McGee, Hall County Sheriff’s Department, to make a wide turn in the vehicle and twice turning without giving a turn signal. Deputy McGee stopped appellant for these traffic infractions and discovered that appellant was a habitual violator who was driving, without a license, a vehicle for which proof of insurance could not be produced. Appellant’s eyes were “extremely red” and dilated; he spoke with rapid sentences through gritted teeth. Although not formally charged with driving under the influence, appellant was arrested for driving as a habitual violator and for driving under the influence. Appellant was patted-down for weapons. The pat-down resulted in appellant’s removing a knife and certain objects from his pocket, including plastic baggies. Appellant consented to a search of the glove compartment for insurance papers. As Deputy McGee was entering the vehicle, he observed a clear plastic container enclosing little plastic baggies containing white powder on the floorboard in front of the passenger seat. Further investigation revealed a compact containing white powder under the passenger seat. Laboratory testing confirmed that the white powder contained methamphetamine. Appellant declined to submit to a urine test. At trial, appellant judicially admitted to being “declared a habitual violator” and to knowing that he was not supposed to be driving. Held,-.

1. Appellant asserts that the trial court erred in refusing to grant a mistrial when a juror, during a deliberation recess, inadvertently overheard third parties discussing the co-defendant. The gist of the conversation was that, while the co-defendant may have committed past criminal acts, in this instance he was innocent. The juror informed the other jurors about this conversation, but apparently did not mention to them that the third-parties considered the co-defendant innocent.

Appellant moved for a mistrial claiming that if the jury believed the co-defendant innocent of drug possession it would per force find appellant guilty. Ultimately, the jury acquitted the co-defendant and convicted appellant.

The trial judge examined each juror individually and obtained from each assurance that the information obtained would not affect the juror’s deliberations. The trial judge also ascertained that jurors would base their verdict solely upon the evidence and the charge. Thereafter, the trial judge recalled all jurors collectively and obtained substantially the same assurances from each juror. Although no curative instructions were requested, the trial judge then instructed the jurors in part as follows: “Please base . . . your verdict solely on the evidence and the court’s instructions.”

“There should be no communication [with any juror] which would tend in any manner to prejudice the accused . . . and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial. . . .” Stewart v. State, 165 Ga. App. 428, 430 (300 SE2d 331). “ ‘[T]he burden is on the state to rebut the presumption of harm. [Cit.]’ [Cits.] However, ‘a new trial will not be granted unless there is a reasonable possibility that the improper evidence collected by jurors contributed to the conviction.’ [Cit.]” Boy v. State, 187 Ga. App. 487, 488 (370 SE2d 787). We find that the trial court’s prompt action in voir dire and in instructing the jury, as above discussed, established on the record that the presumption of prejudice was overcome. Compare State v. Newsome, 259 Ga. 187 (2) (378 SE2d 125). Moreover, the subsequent acquittal of the co-defendant does not serve to impeach the jurors’ responses to the trial judge. We will not speculate as to the basis for the jury’s actual verdict. Dimauro v. State, 185 Ga. App. 524, 525 (364 SE2d 900). Accordingly, the trial judge did not manifestly breach his discretion in denying appellant’s motion for mistrial.

2. Appellant asserts that the trial court erred in refusing to charge on equal access.

On appeal, “ ‘evidence must be viewed in the light most favorable to the verdict.’ ” Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849). Viewing the evidence in this light, it appears that between December 1-3, appellant drove the car from the place of negotiated purchase and parked it near his friend’s home when the car developed mechanical problems. On Christmas Day, appellant returned to the car, placed some property therein, and called the co-defendant to come and look at the car. No evidence was introduced as to whether the car was locked or unlocked during the period when it was parked, and no evidence was introduced that anyone had gained unauthorized access to the car while it was parked. At the time the drugs were seized, only appellant and the co-defendant were inside the vehicle. While the trial judge refused to give an equal access charge, he also elected not to give any charge pertaining to the presumption of possession of contraband flowing from vehicle ownership or operation. The jury was charged inter alia on the principles of circumstantial evidence, reasonable doubt, actual and constructive possession, joint possession, and that mere presence at the scene of the crime will not support conviction.

“ ‘The equal access rule, “as it applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver.” ’ ” Lombardo v. State, 187 Ga. App. 440 (5) (370 SE2d 503); Mendez v. State, 185 Ga. App. 1 (1) (363 SE2d 262); Castillo v. State, 166 Ga. App. 817 (2) (305 SE2d 629). “However, ‘(i)f two or more persons shared actual or constructive possession of a thing, possession is joint.’ ” Mendez, supra at 1-2.

We are satisfied that the evidence of record, when viewed in a light most favorable to the verdict, does not reasonably raise the issue of equal access, but only the issue of joint possession. It is not error to decline to instruct on an issue not reasonably raised by the evidence. See Britt v. State, 184 Ga. App. 445 (1) (361 SE2d 710); Pittman v. State, 175 Ga. App. 50 (1) (332 SE2d 356). Equal access is merely a defense available to the accused to whom a presumption of possession flows. Where “ ‘the (S)tate did not show the indicia giving rise to the presumption, that is, ownership or exclusive control of the vehicle, no presumption arose and therefore there was no triggering of the equal access defense.’ ” Akins v. State, 184 Ga. App. 441 (1) (361 SE2d 707). Likewise, when the trial judge elects not to charge the court on the presumption of possession, an equal access instruction is not required. See Akins, supra.

Further, reviewing the charge given to the jury in toto, see generally Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177), we are satisfied it was properly adjusted to the evidence; and, if appellant’s requested, unadjusted equal access instruction had been injected into the body of the court’s adjusted charge, it could have been misleading to the jury. See Crosby v. State, 150 Ga. App. 555, 557-558 (258 SE2d 264).

3. Appellant asserts that the trial court erred in failing to direct a verdict of acquittal based on the equal access rule.

“[A] motion for directed verdict in a criminal [case] should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311). “If there is any evidence of guilt, it is for the jury to decide whether that evidence, circumstantial though it may be, is sufficient to warrant a conviction.” Castillo, supra at 819.

Decided May 26, 1989.

H. Bradford Morris, Jr., for appellant.

C. Andrew Fuller, District Attorney, Jessica K. Vaughn, Daniel A. Summer, Assistant District Attorneys, for appellee.

In this case, evidence established that the drugs were wrapped in small baggies, baggies were found in appellant’s possession, and appellant was observed to have executed a wide turn without signaling, to have extremely red, dilated eyes, and to have spoken with gritted teeth in rapid sentences. The reasonable inferences that can be drawn from this evidence, coupled with the location and nature of the drugs, precludes the evidence from demanding a verdict of acquittal within the meaning of Taylor.

4. Appellant asserts the court erred in allowing appellant’s entire driving record to go out with the jury.

In this case appellant judicially admitted that he was a habitual violator and that he knew he should not be driving. Under the circumstances, we fail to see how appellant could have been prejudiced, as to the Drivers Licensing Act violation, by the court allowing the jury access to appellant’s entire driving record. See Harper v. State, 175 Ga. App. 703 (334 SE2d 30); Key v. State, 166 Ga. App. 546, 547 (305 SE2d 20).

Appellant, however, asserts that the production of appellant’s lengthy record of criminal traffic related offenses “is extremely prejudicial,” particularly as to the drug possession charge. The contention that “listing . . . prior traffic convictions in an habitual offender case improperly places the recipient’s character into issue has . . . been considered and rejected by this court... as being nothing more than harmless error.” Stowe v. State, 176 Ga. App. 169, 171 (335 SE2d 431). Applying the high probability test for harmless error, Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869), to the entire circumstances before us, we find that assuming error did occur, it was harmless. There exists a “high probability” that this alleged error did not contribute to the jury’s verdict of guilty as to any of the counts of which appellant was convicted.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.