author: Birdsong, Chief Judge. Sognier, Judge,

text:
    73452.
    KESLER et al. v. VEAL et al.
    (356 SE2d 254)
   Birdsong, Chief Judge.

The appellants here are brothers, Jimmy and H. V. Kesler, against whom a jury verdict was rendered for the setting aside of a deed, $5,000 actual damages against both and $65,000 against each in punitive damages, all for fraudulent conveyance of property under OCGA § 18-2-22. Four days after Jimmy Kesler was convicted of the murder of Jan Veal Evans, he conveyed certain real property to his brother H. V. Kesler. Mrs. Evans’ minor children subsequently filed a wrongful death action against Jimmy Kesler and, before this case was tried, received a verdict of $550,000 in that lawsuit.

On appeal, appellants do not complain of the verdict setting aside the deed, but contend the law does not allow money damages in such an action. Held:

1. Appellants contend that evidence that H. V. had advanced $40,000 to Jimmy for attorney fees in his murder trial proved a “valuable consideration” under Brown v. C & S Bank, 253 Ga. 119 (317 SE2d 180), and therefore the conveyance could not be found fraudulent. However, what Brown said was that the defraudee, C & S Bank, was not entitled under § 18-2-22 (3) to a directed verdict on liability because a jury could find Mr. Brown’s conveyance to his wife was based on valuable consideration. The verdict in this case is sustained under § 18-2-22 (2), which makes a bona fide transaction on a valuable consideration valid, if “the taking party is without notice or ground for reasonable suspicion of said intent of the debtor [to delay or defraud creditors].” Manifestly, notwithstanding evidence of valuable consideration, if the jury finds that the debtor made the conveyance with the intention to delay and defraud creditors, and the taking party has notice or even ground for reasonable suspicion of the debtor’s intent, the act is fraudulent in law.

The fraud proscribed in § 18-2-22 (2) is purely in the intention, which is a question of fact for the jury. The degree of legislative opprobrium expressed in this paragraph is clear recognition that a fraudulent conveyance is most easily accomplished when it appears to be otherwise, and that the statute means to reach the fraudulent intent regardless of appearances. It has long been the law that the presence of a bona fide consideration or indebtedness does not render the conveyance valid. Dixie Mfg. Co. v. Ricks, 153 Ga. 364 (5), 371-372 (112 SE 370). Evidently the jury concluded that not only did Jimmy Kesler transfer his property to H. V. “with intention to delay and defraud creditors,” but that “such intention [was] known to the taking party.” And the jury, being well and truly charged on the matter, evidently concluded that H. V. had notice of Jimmy’s fraudulent intent or ground to reasonably suspect it. We are not at liberty to disregard this finding of fact merely because there was the appearance of propriety, because this is the very thing the statute attempts to pierce in finding the intent.

2. Jimmy and H. V. Kesler contend, as they did below, that no authority exists allowing damages, much less punitive damages, for a conveyance with intent to avoid creditors under OCGA § 18-2-22. They advance Bacote v. Wyckoff, 251 Ga. 862 (310 SE2d 520) as meaning that there is no fraud and money damages cannot be collected in a suit to cancel a deed, unless there were actual fraudulent misrepresentations; and Brown v. C & S Bank, supra, as meaning damages are not recoverable in a wrongful conveyance case unless a “conspiracy” is involved.

Appellants’ reliance on these cases is misplaced. Bacote, supra, did not involve a conveyance to delay or defraud creditors and was not a suit on a fraudulent conveyance under OCGA § 18-2-22. The petition alleged a conspiracy to defraud between Bacote and the plaintiff’s former husband, who conveyed plaintiff’s property to Bacote. The Supreme Court upheld the voidance of the deed but reversed the award of money damages against Bacote, as there was no evidence Bacote had committed fraud because he made no “representations” to the plaintiff and there was no “reliance.” Bacote involved actual fraud, and not being a § 18-2-22 fraudulent conveyance case, it does not stand to mean that actual representations by the transferee and reliance by the defrauded party are required in a suit under OCGA § 18-2-22. Appellants contend that Plough Broadcasting Co. v. Dobbs, 163 Ga. App. 264 (293 SE2d 526) required the trial court to give a jury charge on actual fraud, but that case had to do with actual fraud committed in a fish-catching contest and thus is inapposite to this case. The trial court would have erred if it had charged the jury in this case that actual “misrepresentation” must be proved in a fraudulent conveyance case, since OCGA § 18-2-22 does not require it, but rather makes the described acts fraudulent-in-law.

The fact that the plaintiffs in Brown v. C & S Nat. Bank, supra, alleged a conspiracy to accomplish a fraudulent conveyance patently does not mean damages can be recovered for fraudulent conveyance only where a jury finds a conspiracy. The acts described by OCGA § 18-2-22 (2) are the acts and intentions of both the grantor and grantee, a conspiracy of sorts in the inception. They constitute acts “fraudulent in law” and that is all that is required to render a conveyance fraudulent under the statute.

The dissent proffers that transferees cannot be liable in suit brought on fraudulent conveyances. OCGA § 18-2-22 (2) states that if the transferee takes the property on a bona fide transaction on a valuable consideration “without notice or ground for reasonable suspicion of said intent of the debtor [to delay or defraud creditors the deed] shall be valid.” There would not and could not be a cause of action against the transferee in such an instance; however, in the case sub judice the jury found fraud on the part of both the transferor and transferee and set aside the deed. Are we to conclude that when two parties act to perpetuate a fraud-in-law according to the terms of the statute, only one of the two parties can be sued for the fraud? We think not and hope not; and the statute does not say so nor does it imply that the fraudulent act of the transferee which renders the act of the debtor fraudulent in law is not actionable against the transferee. Logic forbids such a result, for if the act of the transferee in taking with knowledge of or ground for reasonable suspicion of debtor’s fraudulent intent is not fraudulent, then the conveyance is not fraudulent under the terms of the act itself, and the debtor is not liable either.

3. The contention is made generally that a fraudulent conveyance action under OCGA § 18-2-22 will not support damages, and that the only remedy allowed is the setting aside.

The precedent in this area is scarce and very uneven, but it indicates the critical distinction between a suit in equity to set aside the conveyance based on the original debt, and an action at law for the fraud itself. OCGA § 18-2-22 makes the acts “fraudulent in law”; fraud is a tortious injury. Damages are given as compensation for tortious injury (OCGA §§ 51-6-1; 51-12-4) and are presumed to flow from a tortious act. OCGA § 51-2-2. There is no statutory hint that the fraud found under OCGA § 18-2-22 will not support damages. To the contrary, it seems to us that in specifying what acts and intentions “shall be fraudulent in law against creditors and others and as to them shall be null and void,” the legislature has expressed a degree of opprobrium not common in law and has stated far more than it would have in a provision merely that certain acts shall be null and void. It has made fraud-in-law what the plaintiff would have much difficulty in proving as a subtle form of constructive fraud. Moreover, if it had meant to apply to such specific acts only an equitable remedy of setting aside the conveyance so as to satisfy the debt, the legislature had only to say: “These acts shall be null and void”; and certainly most debtors would then be well advised to convey whatever they could, since the described acts, should they ever be proved, could subject them to no penalty at all. In going to the length to specify that these acts are fraud-in-law, the legislature did create a tort and particularly in view of the uncommonality of making such subtle intentions “fraudulent in law,” we are hard put to say it constitutes no injury or that there is no cause of action for it and no redress for the injury itself. Clearly the legislature found this injury more odious than a mere avoidance of debt which the setting aside will put right. In Brown v. C & S Nat. Bank, supra, the Supreme Court sanctioned an award of actual damages and punitive damages, even though the conveyance of a motor vehicle was never effected, on the basis that the Browns’ attempted conveyance caused real injury, creating at minimum a cloud on the title and forcing the bank to take affirmative action. In that case there was nothing to set aside on behalf of the debt, but clearly the Supreme Court found an injury.

In Chambers v. C & S Nat. Bank, 242 Ga. 498 (3) (249 SE2d 214), the suit was brought to declare the conveyance void. No damages were sought except attorney fees, and these the court approved on grounds the appellants had acted in bad faith. A similar holding was made in Jones v. Spindel, 239 Ga. 68, 71-72 (235 SE2d 486), where it was also held that there was nothing to support punitive damages because the plaintiff had not claimed any compensatory damages but had only prayed for equitable relief by the setting aside of the conveyance. Thus the suit in Jones was not a suit for the fraud itself.

Jones v. Spindel (p. 71) stated that Foremost Dairy Prods, v. Sawyer, 185 Ga. 702 (196 SE 436) held “that one can not set aside a fraudulent conveyance and win money damages from the grantee as that would be a double recovery.” This is a correct statement of law, but it does not say one cannot set aside the conveyance and win money damages for the tort of fraud. The Supreme Court is referring to the double recovery on the original debt that would result if equity both set aside the conveyance and gave a money judgment in satisfaction of the debt. In Foremost Dairy Prods., the judgment creditor, Sawyer, alleged at length that the “old” Foremost Dairy Products, Inc. had conveyed to the “new” company Foremost Dairies, Inc. all its shares and property for the purpose of defrauding and defeating creditors. The petitioner prayed to make the property of the new company subject to his claim and, by amendments, he alleged (p. 710) specific fraud of the new company but he did not ask for damages for the fraud. He prayed for a judgment against the new company in the amount of his original debt judgment, thus to make the property wrongly conveyed to the new company subject to his claim. Id. pp. 703-704, 710. The Supreme Court struck the “personam judgment” award (pp. 716, 720), and held erroneous and misleading the jury charge: “ ‘The purpose of this action ... is that the plaintiff may recover of and from the defendants a sum of money. . . .’ ” Id. pp. 717-718. In fact, this was a petition in equity to set aside the conveyance or subject the property to Sawyer’s lien; it was not a suit for damages for the fraudulent conveyance and thus no “personal judgment” for damages could be awarded for the fraud. The trial court set aside the conveyance and rendered a judgment in rem against the property; this was all the court could do on the equitable petition. The personal judgment on the debt was not authorized, because it was unnecessary and hence was a relief beyond the power of equity to satisfy the debt by cancelling the conveyance and subjecting. the property to Sawyer’s lien by judgment in rem. See Miller v. Kaiser, 164 Colo. 206 (433 P2d 772).

Foremost Dairy Prods, and all of the cases on this subject must be seen in light of this critical distinction between an equity action seeking to satisfy the underlying debt by setting aside the conveyance or pursuing its proceeds, and an action at law for damages for the fraud. These are two distinct and separate wrongs. The equitable remedy of setting the conveyance aside may authorize damages based on the debt, but only to the extent the property has been disposed of or dissipated and the conveyance cannot be effectively set aside. See Jones v. Spindel, supra; Sullivan v. Ginsberg, 180 Ga. 840 (181 SE 163); Miller v. Kaiser, supra. But this has nothing to do, except in the way of proof and circumstance, with an action for damages for the fraud.

In Graves v. Horton, 132 Ga. 786 (65 SE 112), the plaintiff sought to make the transferee pay a debt owed him by the bankrupt debtor. The plaintiff had no judgment and no lien; it was not a proceeding to subject the property to the payment of a debt, but “was a direct suit, by one claiming to be a creditor of a bankrupt.” Id. p. 789. The court found itself confounded to detect what the plaintiff wanted of the transferee that he had any right to get. The facts are too sparse to indicate whether the plaintiff sued in equity on the underlying debt or at law for damages for the fraud, but the court was convinced he had no case for either because he had no judgment and no lien to which to hold the property or its proceeds. But this was based on the assumption that the plaintiff was no real creditor because he had no judgment or lien, and thus no equity to set the conveyance aside; and the court reasoned further, since the result of the transfer was the loss of a mere possibility of realization too speculative to be measured in damages, there was no fraud, for how could it be a wrong to avoid one who was not even a creditor? See Glenn, Fraudulent Conveyances & Preferences, § 74, pp. 122-123 (1940). But this is clearly not the rule in Georgia, which holds to the opposite rule (see Moore, Fraudulent Conveyances, Chap. XII, § 21, p. 757 (1908)), and expressly declares in OCGA § 18-2-22 that the certain acts “shall be fraudulent in law against creditors and others and as to them shall be null and void.” These “others” include plaintiffs with claims against debtors “liable as tortfeasors, or otherwise ... for an unascertained damage to person or property, so far as fraudulent conveyances are concerned.” Westmoreland v. Powell, 59 Ga. 256, 258. In 1895, the legislature put back in the statute the words declaring certain acts to be fraudulent in law against creditors “and others” (Civil Code § 2695) using as its source Westmoreland. Thus the perception implied in Graves v. Horton, supra, that there can be no action either in equity to set aside a conveyance or at law for damages for the fraud in one who has only an uncertain claim, cannot be sustained, and indeed has not been repeated. See Banks v. McCandless, 119 Ga. 793 (47 SE 332).

Matthews v. Pass, 19 Ga. 141, is cited by the dissent for the proposition that historically there never has been an action at law for damages for the fraud, but examination of that case reveals that the action against that transferee was not pursued under the fraudulent conveyance statute, but was an action for actual fraud in aiding a debtor to remove property; and was by a plaintiff creditor who had no lien and no judgment and therefore had no right to the property. The premise of the case is like that in Graves v. Horton, and surmises that the creditor was not wronged by the transferee because he was in fact not a creditor, and that is why he had no action for fraud. Matthews v. Pass was decided well before Westmoreland v. Powell, supra, which established, beyond debate (particularly since the legislature then adopted the rationale in the statute), that the fraudulent conveyance statute protects creditors “and others,” meaning plaintiffs with an undetermined claim. It thus might have been true in 1858 when Matthews v. Pass was written, that the “creditor” without a lien or judgment was not injured by the transferee or a debtor; but it is not true since Westmoreland, and under today’s statute he is protected from the fraud of the debtor and the transferee.

Bigby v. Warnock, 115 Ga. 385 (41 SE 622) was not an action for damages for fraud. It was a petition in equity to set aside the conveyance or to subject the grantee’s proceeds to Warnock’s lien. Thus, in that case the equitable action, the remedy and the recovery were on the original debt; the thing the creditor wanted was the satisfaction of his lien. All of the limitations stated in Bigby are to that end.

The Colorado case cited in Jones v. Spindel, supra, p. 71, proves this critical distinction between an action for damages for the fraud, and an action “seeking and securing the equitable remedy of voiding [the] fraudulent conveyances.” Miller v. Kaiser, supra, p. 775. The Colorado court held that a personal judgment and punitive damages on the debt are incompatible with that equitable action because “[implicit in this remedy is a bar to any money judgment against the fraudulent transferor. . . . [In] this equitable remedy ... a judgment creditor cannot... be the recipient, as against the fraudulent transferor, of a money judgment, for the very basis of this action is the judgment debt he is endeavoring to collect. ... To award the judgment creditor a money judgment would amount to an increase in the judgment debt owed to the judgment creditor by the fraudulent transferor. . . . [But] a different situation might be presented in an action in which special damages were alleged and proved” (id., emphasis supplied); that is to say, in an action for the fraud itself. This statement from Miller explains the striking of the judgment in personam in Foremost Dairy Prods., which also was not an action for damages for the fraud, and the statement in Jones v. Spindel that “one cannot set aside a fraudulent conveyance and win money damages from the grantee as that would be a double recovery” on the debt.

Nearly all of the cases and authority which have asseverated that damages cannot be recovered in these cases refer to the action for equitable relief on behalf of the original debt; we certainly agree that damages are not recoverable in such a proceeding unless they are necessary in equity to answer to the debt. But the acts of fraud are a different matter entirely, and to say there is no remedy for them is to deny that the creditor was even wounded by the fraudulent conveyance.

We conclude that the remedy of setting aside the conveyance or (if the property has been put out of reach of the creditor) damages to aid equity not exceeding the debt or the value of the property, is the equitable remedy on the debt which the grantor and grantee sought to avoid by the fraudulent conveyance as set up by OCGA § 18-2-22. Jones v. Spindel, supra. The creditor reaches the property by proving the fraudulent conveyance. But the fraud itself might constitute a tortious injury so clearly that it might be proven even where the creditor succeeded in preventing the conveyance, and will support actual damages and exemplary damages. Brown v. C & S Bank, supra; see Sheppard v. Tribble Heating &c., 163 Ga. App. 732, 734 (3) (294 SE2d 572).

We find this result to be mandated by the statute itself and every consideration of public policy. To say the only remedy of the creditor is in equity to set aside the conveyance would be to urge the debtor to convey his property away to hinder and defraud creditors, for if he should get caught at it, no matter how fraudulent his intent or how odious the injury, the worst that could happen would be the setting aside of the conveyance and, even if the asset is destroyed or moved out of reach, equity would aid the creditor in damages only to the extent of the debt. We think this defect in equity jurisdiction requires a remedy at law for damages for the fraud itself (see Moore, Fraudulent Conveyance, supra); it is indispensable to effect the legislative aversion to such a conveyance, which is so strong it declared the acts to be “fraudulent in law.”

Accordingly, this money judgment for damages at law for the fraud is not subject to attack for any of the reasons suggested by the appellants. Clearly, the jury found that the appellees were damaged by the fraudulent transfer (see Baggett v. Nat. Bank &c. Co., 174 Ga. App. 346, 349-350 (330 SE2d 108)), and evidently found such “aggravating circumstances, in either the act or intention,” as to justify punitive damages under OCGA § 51-12-5, as well. We are not authorized to disturb the jury’s findings of fact.

4. As we took pains to show in Division 3, the equitable remedy of setting aside the conveyance for satisfaction of the original debt is completely different from the right at law to recover damages for the fraud of the conveyance itself. The setting aside and the recovery of damages for the fraud are not “two bites of the apple” or “paying the debt twice.” Equity pays the debt by setting aside the conveyance; but the law compensates the creditor in damages for the tort of fraud. The statement in Brown v. C & S Bank that the plaintiff bank voluntarily “elected” to recover damages for the fraud does not amount to a holding that it was required to make an election; and in fact, since there was nothing to set aside because the bank had prevented the transfer, there was really nothing to elect.

The statute not only does not imply there must be an “election,” but it mandates the conclusion that the creditor may recover for the fraud and set aside the conveyance, for it expressly provides that the described acts “shall be fraudulent in law . . . and . . . shall be null and void.”

We conclude the petitioners are not required to give up their right to satisfy the judgment debt by getting the conveyance set aside, in order to get damages for the fraud. To hold otherwise would be to facilitate a fraudulent conveyance by encouraging a debtor to remove the property, for he would know that even if he gets caught in the fraud he will not be penalized for it but can force the creditor to choose between setting aside the conveyance to satisfy the debt and recovering damages for the fraud. In such a case the requirement to elect would compound the injury to the creditor, because if he gives up the setting aside to recover damages for the fraud, that judgment debt will likely have been avoided as well by the conveyance. He will thus be unable to satisfy his original debt, unable to satisfy his fraud judgment, and the debtor will suffer no penalty at all.

5. The jury returned a first verdict of $65,000 general damages against both appellants,, and $5,000 punitive (exemplary) damages against H. V. Kesler and $145,000 against Jimmy Kesler. The trial court refused to approve this verdict because the general damages award exceeded the $5,000 general damages prayed for. When the jury retired with instructions to adjust the general damages award, it adjusted the punitive damages as well to $65,500 but without specifying against whom this amount was assessed. Again, the judge refused to approve the verdict, but he accepted the third verdict of $5,000 general damages against both defendants, and punitive (exemplary) damages of $65,500 against each. Appellants contend this third verdict assessed, over the second verdict, an excess amount of $65,500 in punitives against H. V., which was contrary to the court’s instructions to adjust the general damages. There is no merit in this contention. Neither the first nor the second verdict was approved by the court and neither was the verdict of the jury until it was accepted and approved. Davis & Shulman, Ga. Prac. & Proc., § 16-8. The trial court has the right and duty to have the jury mold the verdict in proper form, to require the adjustment of damages to what the plaintiff sued for or is entitled to (Chieffe v. Alcoa Bldg. Prods., 168 Ga. App. 384 (4) (309 SE2d 167)), or to call the jury’s attention to an indefinite or ambiguous verdict and require them to retire and correct the same. Smith v. Pilcher, 130 Ga. 350 (60 SE 1000). The second verdict in this case ($65,500 exemplary damages) was no more the “final verdict” of the jury than the first one and no verdict was final until the trial court approved and accepted it. Until then, when the jury was instructed to remold the general damages, it was free to remold the rest of the verdict to reflect its determination of total liability.

6. The verdict in this case is not subject to attack on grounds that it constituted a double recovery for injury to feelings or of punitive damages under Westview Cemetery v. Blanchard, 234 Ga. 540 (216 SE2d 776) or that the trial court failed to give proper charges as to compensatory and “punitive” damages.

It is suggested that the only injury for which damages were prayed was injury to the plaintiff’s peace, happiness or feelings, and that therefore the compensatory award was given under OCGA § 51-12-6 and, with punitive damages under OCGA § 51-12-5, this constituted an impermissible double recovery under Westview Cemetery, supra. However, assuming arguendo that the only compensable injury alleged and found was to the plaintiffs’ feelings, it is well-established that compensatory damages are recoverable for injury to feelings under OCGA § 51-12-4 (which the trial court charged) if the conduct complained of was malicious, wilful or wanton, as in this case (Westview Cemetery, supra, pp. 543-544); and this is true even though the injury is not accompanied by physical or pecuniary loss and even though the tort be in relation to property rights. Id.; Montega Corp. v. Hazelrigs, 229 Ga. 126 (189 SE2d 421).

The trouble with a “double recovery” arises when the jury is allowed to award additional (punitive) damages for aggravation under OCGA § 51-12-5 and to consider the worldly circumstances of the parties for an award under OCGA § 51-12-6, which is also a form of punitive damages. Westview Cemetery, supra. No such charge was made in this case, and no such award. The only form of “punitive” or additional damages the jury was allowed to return was charged under OCGA § 51-12-5.

Thus the compensatory award of $5,000 was authorized under OCGA § 51-12-4 for injury to wounded feelings in a willful and wanton tort, without any pecuniary or physical injury. And the punitive damages were authorized under OCGA § 51-12-5 by the “aggravating circumstances in either the act or the intention” which the jury evidently found. There was no “double recovery.”

Judgment affirmed.

McMurray, P. J., and Pope, J., concur. Deen, P. J., and Beasley, J., concur in judgment only. Banke, P. J., Carley, Sognier, and Benham, JJ., dissent.

Sognier, Judge,

dissenting.

I respectfully dissent.

1. OCGA § 18-2-22 provides: “The following acts by debtors shall be fraudulent in law against creditors and others and as to them shall be null and void.” A judgment creditor can proceed either at law, by levying an execution on the property as though the title was not clouded by the fraudulent conveyance, see Varn Investment Co. v. Bankers’ Trust Co., 165 Ga. 694 (141 SE 900) (1928), or in equity to set aside the conveyance. See 8 EGL Debtor & Creditor, § 20 (1978 Rev.). The courts have recognized that in order to prevent equity from being outwitted or frustrated, money damages may be allowed under certain circumstances, such as where the fraudulently transferred property has depreciated in value or where the property has been placed, in whole or in part, beyond the reach of the court. In such a case an election must be made between these two remedies in order to prevent double recovery. See Foremost Dairy Prods. v. Sawyer, 185 Ga. 702 (196 SE 436) (1938).

In the case sub judice, however, the damages the majority would uphold were not awarded as an alternative to the equitable remedy and have no relation to the value of the property or the amount of the creditors’ debt. Rather the damages were awarded simply for the fact a fraudulent conveyance took place. Thus, the majority finds that OCGA § 18-2-22 provides not only an equitable remedy, which either restores ownership in the fraudulent transferor or makes available the monetary equivalent of the property transferred (thereby allowing the judgment creditor to reach the asset and collect his debt), but also finds that OCGA § 18-2-22 provides a remedy independent of the creditor’s debt for the fraudulent transfer of the property, which authorizes actual and punitive damages against both the fraudulent transferor and fraudulent transferee.

This remedy for damages for the fraudulent transfer itself, as opposed to damages elected because the equitable remedy was inadequate, has never been recognized by the courts of this state since the virtually unchanged language of OCGA § 18-2-22 was first enacted in 1863. See Code 1863, § 1954. Nor is this remedy inherent in fraudulent conveyance statutes. See 37 CJS, Fraudulent Conveyances, §§ 279 (b) (1), 318, 444; Miller v. Kaiser, 164 Colo. 206 (433 P2d 772) (1967), cited with approval in Jones v. Spindel, 239 Ga. 68, 71 (3) (235 SE2d 486) (1977). Rather, these damages are typically sought in concert with allegations of conspiracy, Brown v. C & S Nat. Bank, 253 Ga. 119, 120 (317 SE2d 180) (1984), or bad faith, Chambers v. C & S Nat. Bank, 242 Ga. 498 (3) (249 SE2d 214) (1978), or actual fraud. See generally Bacote v. Wyckoff, 251 Ga. 862, 865 (1) (310 SE2d 520) (1984). In their amended complaint, appellees alleged damages for injury to their peace, happiness and feelings under OCGA § 51-12-6 and damages for appellants’ bad faith and fraud. No charge was given the jury on the bad faith and fraud or on any conspiracy issue which may have been raised by the evidence. Thus only OCGA § 51-12-6, alleged by appellees, supported by the evidence, and charged by the trial court, supports the actual damages awarded by the jury. But see Jones, supra, at 71-72. However, actual damages awarded solely under OCGA § 51-12-6 will not support an award of exemplary damages under OCGA § 51-12-5, see Westview Cemetery v. Blanchard, 234 Ga. 540, 543 (B) (216 SE2d 776) (1975), and thus the award of $65,000 exemplary damages against each appellant must be stricken.

2. Even assuming, for the sake of argument, that the statute does support the award of actual and exemplary damages for fraudulent conveyance as to the transferor, the statute cannot be read as extending liability for these damages to the transferee of the fraudulent conveyance. The language of the statute explicitly states that it is the “acts by debtors” that shall be fraudulent at law. Transferees are mentioned only in that their knowledge of a solvent debtor’s intent to delay or defraud a creditor must be proven in order to make an “act by debtors” fraudulent in law under OCGA § 18-2-22 (2).

In conclusion, the majority’s holding is not explicitly authorized by OCGA § 18-2-22, nor are there any cases in the 124-year history of this statutory language to support that holding. The few cases which do discuss fraudulent conveyances and damages are distinguished by the majority on the basis that they did not involve “suits on the fraud”: an unsurprising conclusion if viewed from the perspective that no such suit exists within the purview of the statute. The significance of the absence of any precedent was noted by Justice Benning in Matthews v. Pass, 19 Ga. 141, 144 (1855), who, in addressing a similar argument raised by a creditor seeking damages against a fraudulent transferee, stated, “[c]ases like this have been continually occurring ever since the birth of credit. Has there ever been a time when men were not aiding debtors to evade the payment of their debts? Yet, there is not to be found an instance of an action on the case against such men, by the creditor. If the law had been such as to give the creditor that action, should we not, at some time, have seen the creditor resorting to the action? Cases may be of such a character, that if they are without the support of a precedent, it may be almost certainly said, that it is because they are without the support of law. And this is one of them.”

Therefore, I would dissent from the decision of the majority upholding the award of actual and exemplary damages under OCGA § 18-2-22 as to both appellants and would affirm only the award of $5,000 actual damages under OCGA § 51-12-6, striking the exemplary damages of $65,000 against both transferor and transferee appellants.

I am authorized to state that Presiding Judge Banke, Judge Carley and Judge Benham join in this dissent.

Carley, Judge, dissenting.

I join Judge Sognier’s dissent in all that is said therein except that I do not believe that, within the parameters of this litigation, there exists a tort for which any money damages are recoverable. See Jones v. Spindel, 239 Ga. 68, 71 (3) (235 SE2d 486) (1977). I would reverse in its entirety the judgment for money damages entered on the verdict.

Decided March 20, 1987

Rehearing denied April 1, 1987

Edward E. Strain III, Andrew J. Hill, Jr., for appellants.

A. Jack Kemp II, for appellees.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    73472.
    ABERNETHY et al. v. CATES et al.
    (356 SE2d 62)
   Benham, Judge.

Appellants leased commercial property from appellees under a lease which provided that the tenants were financially responsible for maintaining and repairing the leased premises and were to return the premises to the landlords in as good a condition and state of repair as when first received, normal wear and tear and casualty damage excepted. Appellants subsequently sublet the premises, with appellees’ permission. The subleasing agreement, signed by appellants and appellees as well as the subtenants, provided that nothing in the subleasing agreement altered or amended the duties and obligations of appellants under the original lease. When the subtenants vacated the premises prior to the termination of the lease, appellees reentered the premises and repaired the damage done to the building after appellants refused to do so. Appellees then filed this lawsuit to recover the amount expended to repair the damages incurred during appellants’ lease. Judgment in favor of appellees in the amount of $13,835.48 was entered following a jury verdict in that amount. This appeal followed.

1. Each of appellants’ initial three enumerated errors concerns the trial court’s decision permitting a lay witness to testify as to the amount of the damages attributable to ordinary wear and tear. The trial court allowed the owners’ agent to testify that between five and ten percent of the monies expended to repair the building after the subtenants vacated was attributable to fixing ordinary wear and tear. Appellants contend that such an opinion can be rendered only by an expert witness and, even if lay testimony on the subject is permissible, no factual basis for the witness’ opinion was established.

“Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor . . .” OCGA § 24-9-65. “ ‘The class of questions here referred to must be such as lie within the range of common opinion.’ [Cit.] That is, an opinion which is supposed to be within the common knowledge, experience, and education of men. [Cit.]” Cone v. Davis, 66 Ga. App. 229 (6) (17 SE2d 849) (1941). Expert testimony is permitted “[i]f the nature of the question is such that factors leading to a conclusion are not known to the common or average man, but are among those things shrouded in the mystery of professional skill or knowledge . . ." Smith v. State, 247 Ga. 612, 616 (277 SE2d 678) (1981). Inasmuch as the concept of ordinary wear and tear is within the common knowledge of man and is not shrouded in the mystery of professional skill or knowledge, we agree with the trial court that expert testimony on the subject was not necessary.

We turn to appellants’ argument that the agent/witness did not have a sufficient opportunity to form a correct opinion as to the amount of damage attributable to normal wear and tear. The witness testified that he had been in the real estate business for 33 years; had constructed the. building at issue; had maintained an office in the building up until three years before the effective date of appellants’ lease; and knew the condition of the building at the time it was leased to appellants. “The question of whether a witness has established sufficient opportunity for forming a correct opinion or has stated a proper basis for expressing an opinion is for the trial court. [Cits.] We have found no abuse of discretion by the trial judge.” Dept. of Transp. v. McLaughlin, 163 Ga. App. 1 (3) (292 SE2d 435) (1982). Through the testimony of their agent, appellees established “the specific acts of waste or damage alleged and the reasonable cost of restoration in relation to the specific injuries shown.” Zeeman Mfg. Co. v. L. R. Sams Co., 123 Ga. App. 99, 101 (179 SE2d 552) (1970). The agent’s testimony, coupled with documents admitted into evidence, established a “basis upon which the jury could compute the cost of restoration . . . which may be required in repairing or replacing damage, if any, chargeable to the lessee.” Id. at 103.

Appellants argue the trial court should have directed a verdict in their favor because appellees did not present evidence that the value of what they received at the end of the tenancy (after repairs were made) was equal to the value of the premises at the inception of the lease, less normal wear and tear over the term of the lease. “[I]t is essential that the [landlord] prove with a reasonable degree of certainty and specificity the condition of the premises . . . both at the inception and at the termination of the tenancy, or that he show specific acts of waste or damage the results of which at the end of the term had not been repaired.” Spacemaker, Inc. v. Borochoff Properties, 112 Ga. App. 512, 514 (145 SE2d 740) (1965). (Emphasis supplied). If it is shown that the tenant’s actions resulted in such gross and extensive injuries as to require complete reconstruction of the entire premises or portions thereof, the cost of the complete reconstruction, if reasonable, will suffice as proof of damages. Under the terms of the lease, appellants were required to maintain and repair the building and improvements. Thus, appellants would have been required to replace the lighting that had been removed; the broken acoustical tile ceiling; the floor tiles; the broken plate glass windows; and the broken air conditioner. Zeeman Mfg. Co. v. L. R. Sams Co., supra, is distinguishable from the case at bar. There, the lessor sought compensation for repairing the roof, a portion of the structure the lessor was contractually obliged to maintain. Since, under the lease, appellants would have had to replace those items so extensively damaged as to require replacement, they were not entitled to a credit of pre-lease depreciation as a mitigation of the replacement costs. The trial court did not err in denying appellants’ motion for directed verdict on the proof of damages.

2. Appellants’ next three enumerated errors concern appellees’ failure to give appellants notice of default and an opportunity to cure that default, as allegedly called for in the lease. As appellees point out, the lease required them to give appellants notice and opportunity to cure as a condition precedent to appellees’ termination of the lease. There was no contractual requirement to give notice and opportunity to cure when appellees were seeking unpaid rent and compensation for repair of the damaged premises. Enumerations 4 through 6 are without merit.

3. In light of our holding in Division 2, the trial court erred in giving a jury instruction on the issue of the notice and opportunity to cure. However, the charge given was favorable to appellant and, therefore, must be deemed harmless. Swim Dixie Pool Corp. v. Kraemer, 157 Ga. App. 748 (2) (278 SE2d 448) (1981). “To obtain a reversal of the judgment of which complaint is made, the burden is upon [appellant] to show not only error but injury. [Cit.]” Williams v. Kerns, 153 Ga. App. 259, 268 (265 SE2d 605) (1980).

4. In the next set of enumerated errors, appellants claim a right of setoff. Appellants maintain their right arises out of appellees’ failure to give notice of default and opportunity to cure. In light of the holding in Division 2, there was no error in limiting testimony on set-off and in refusing to give requested charges on the subject.

5. Appellants next find error in the trial court’s refusal to charge the jury on the doctrine of equitable estoppel and refusal to admit into evidence the document upon which appellants base their estoppel theory. Appellants claim the document, a letter written by appellees’ agent to appellants’ subtenants putting the subtenants on notice of appellants’ intent to enforce strict compliance with the lease, caused the subtenants to vacate the premises. However, abandonment was not the issue in the case at bar. Rather, the repair of the damages inflicted on the property at the hands of the subtenants and the payment of unpaid rent were the issues before the trial court. There was no error in refusing to bring in the issue of equitable estoppel.

6. Appellants sought and were denied a directed verdict on the ground that the doctrine of res judicata barred appellees’ claims. In April 1984, appellees filed a dispossessory proceeding describing appellants’ subtenants as tenants holding over. A jury found in favor of the subtenants in June 1984. Appellants now maintain that the claims for damages and unpaid rent filed by appellees in March 1985 were matters which might have been put in issue in the dispossessory action and therefore are now barred. See OCGA § 9-12-40; Twin Tower &c. Venture v. American Marketing &c. Corp., 166 Ga. App. 364 (304 SE2d 493) (1983). In the present action, appellees sought rent for September-December 1984. Inasmuch as that rent was not due and owing in April-June 1984, it was not a matter which might have been put in issue in the dispossessory action. See Lowenberg v. Ford & Assoc., 165 Ga. App. 753 (302 SE2d 433) (1983). See also Garmon v. Boozer, 209 Ga. 570 (74 SE2d 865) (1953). Appellants contend that appellees were aware of the claim for damages asserted herein when they filed the dispossessory action. The only evidence to support appellants’ assertion is the testimony of the owners’ agent that he sent a letter to the subtenant in March 1984, telling the subtenant he was going to have to “fix up” the premises before he returned possession of the property to the owners. Neither that letter nor a description of the repairs contemplated by it is contained in the record. In the absence of that evidence and in light of the subtenant’s contractual duty to return the premises to the landlords in as good a condition and state of repair as when first leased to appellants, we cannot interpret the testimony as proof that, in March 1984, appellees’ agent was aware of the damages for which appellees sought recompense in this action. Therefore, the denial of the motion for directed verdict based on the doctrine of res judicata was not error.

7. In detailing his efforts to repair the building, the owners’ agent testified that one contractor he approached said it was too big a job for him, and two others gave him estimates the witness described as “too high.” Appellants’ hearsay objection was overruled on the ground the testimony was admissible to explain the witness’ conduct.

The witness’ statement that the estimates of the two contractors were “too high” was not hearsay; rather it was the opinion of the witness. The witness was available for cross-examination on the subject if appellants had wished to determine upon what he based his opinion. The statement that the repair job was “too big a job for the first contractor,” however, was hearsay, and not admissible to explain the witness’ conduct since his conduct and motives in obtaining a contractor were irrelevant to the issues on trial. See Teague v. State, 252 Ga. 534 (1) (314 SE2d 910) (1984); Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982). However, the admission of that hearsay statement was not harmful error. The witness had previously testified as to the breadth of the repair job when he chronicled the state of disrepair in which he had found the building after the subtenants had vacated, and the parties had stipulated that appellees had spent $12,415.24 to repair the building.

8. In their final enumerated error, appellants claim the trial court erred in permitting appellees to amend their complaint to assert a claim for lost rent after the trial had commenced. After opening statements and outside the presence of the jury, appellants’ counsel stated his objection to the admission of evidence concerning lost rent because that issue was not raised by the pleadings. OCGA § 9-11-15 (b). Appellees’ counsel advised the court of his intention to amend the pleadings, and court adjourned for the day. When court reconvened the next day, appellees presented their amendment, to which appellants objected, contending that, since trial had begun, appellees’ ability to amend pleadings as a matter of right had come to an end. See Black v. Lowry, 159 Ga. App. 57 (1) (282 SE2d 700) (1981). The trial court permitted the amendment over appellants’ objection. Appellants now contend that the trial court did not balance possible prejudice to appellants with appellees’ reason for delay in amending, and “would not hear arguments” concerning the matter. While appellants voiced objection to the amendment, they only argued that appellees no longer had the unfettered right to amend their pleadings. Appellants did not mention the potential prejudice they foresaw as a result of the amendment, and now would have this court reverse the judgment on the ground that the trial court failed to inquire of appellants the possible prejudice the amendment would cause them. We decline to do so. Appellants had the opportunity to inform the trial court of the prejudice they feared they would suffer as a result of the amendment, and they failed to do so. We will not place upon the trial court the duty to inquire of parties how they are going to be affected by actions taken by the trial court. Moreover, we must point out that appellants had precipitated the amendment by voicing an objection to the introduction of evidence concerning lost rent, contending it was not within the issues made by the pleadings. In such a case, OCGA § 9-11-15 (b) provides that “the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of the evidence would prejudice him in maintaining his . . . defense upon the merits. The court may grant a continuance to enable the objecting party to meet the evidence.” Appellants failed to present argument of prejudice, much less evidence of prejudice, and did not seek a continuance. We will not hear them complain at this point.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur. Beasley, J., disqualified.

Decided March 17, 1987

Rehearing denied April 1, 1987

Robert M. Martin, Leslie A. Dent, for appellants.

J. Garland Peek, for appellees.


author: McMurray, Presiding Judge.

text:
    73523, 73568.
    WILLIAMS v. CITIZENS BANK OF ASHBURN; and vice versa.
    (356 SE2d 80)
   McMurray, Presiding Judge.

The case sub judice began as an action in equity for an accounting under the will of Preston E. Williams. The defendant, executrix under the will, filed third-party complaints. The third-party complaints allege that any sums which plaintiff may recover against defendant are in turn recoverable by defendant as third-party plaintiff against the third-party defendants Sarah Phelps, Paul Phelps and The Citizens Bank of Ashburn. The third-party complaints allege that third-party defendants Paul Phelps and Sarah Phelps converted to their own use certain monies, properties and various banking instruments that rightfully belonged to Preston E. Williams and that such occurred while Paul Phelps was an employee and agent of, and with the knowledge and consent of, The Citizens Bank of Ashburn.

Upon the trial of the case the jury returned a verdict in favor of plaintiff and against defendant in the main equity case. However, the details of the verdict in the equity action are of no concern to us on this appeal which deals solely with the third-party action.

The jury’s verdict as to the third-party action was in favor of the third-party plaintiff and against the three third-party defendants. Following the entry of judgment, third-party defendant The Citizens Bank of Ashburn moved for judgment notwithstanding the verdict or in the alternative for new trial. The trial court granted The Citizens Bank of Ashburn’s motion for judgment notwithstanding the verdict and the third-party plaintiff appeals from this order. The third-party defendant The Citizens Bank of Ashburn has cross-appealed contingent upon our decision on the main appeal. Held:

The evidence clearly shows the taking of certain monies of Preston Enoch Williams, by Sarah and Paul Phelps (mother and son), the purchasing of certificates, dates, amounts, banks involved, assignment and dissipation of the funds.

The converted monies were initially deposited in a money market certificate of deposit in the Bank of Edison. While the certificate was made to “Preston E. Williams or Mrs. Sarah B. Phelps,” it was uncontroverted that Mr. Williams was the owner of these funds. Sarah Phelps was the step-daughter-in-law of Preston E. Williams, who was approaching 80 years of age and was experiencing failing eyesight.

On or about March 11, 1981, at the maturity of the Bank of Edison certificate of deposit, the certificate was endorsed by Sarah Phelps and the funds deposited in a certificate of deposit in the third-party defendant The Citizens Bank of Ashburn in the names of Preston E. Williams or Sarah B. Phelps (the same names as the Bank of Edison certificate). At the maturity of The Citizens Bank of Ashburn certificate of deposit, the certificate was endorsed by Sarah Phelps and at her direction the funds were redeposited in two certificates of deposit, one in the amount of $16,000, in the name of Preston E. Williams or Sarah B. Phelps and the balance of $45,391.22 was placed in a certificate of deposit in the name of Sarah B. Phelps or Paul S. Phelps. In each of these two transactions, the transfer of the funds from bank to bank and the splitting of the funds into two certificates, Paul Phelps was involved in his capacity as an officer of the third-party defendant The Citizens Bank of Ashburn. The certificate in the amount of $45,391.22 was dissipated by Paul Phelps, who pledged the certificate as a security for a personal indebtedness upon which he defaulted. Interest payments on both certificates were sent to the address of Sarah Phelps and endorsed by her.

The sole defense presented at trial by the Phelpses was that the monies were a gift to Sarah Phelps from Preston E. Williams. This defense was rejected by the jury who found “no gift.”

In regard to The Citizens Bank of Ashburn’s lack of duty to question these transactions see OCGA §§ 7-1-816 and 7-1-820. Thus, there was no misconduct apparent (to the bank) on the surface of the transactions involving these funds, nor is there any evidence of the bank receiving actual notice of the conversion.

Unless the knowledge of Paul Phelps is imputed to the bank, the record fails to show any knowledge by the third-party defendant The Citizens Bank of Ashburn as to the acts of conversion perpetuated by Paul Phelps through and with the bank while serving in his official capacity. Thus, the key issue is whether the knowledge of Paul Phelps should be imputed to the bank. The trial court decided this issue in the negative and the third-party plaintiff contends this decision was error. The third-party plaintiff argues that the knowledge of Paul Phelps is imputed to the bank and that the bank is liable because Paul Phelps was acting in the course of his employment and for the benefit of the bank. However, it is clear that Paul Phelps was acting in his own interest, that any communication regarding same to the bank would be adverse to his own interest, and that any benefit to the bank arising from having the funds on deposit with the bank was entirely incidental. Under these circumstances the third-party defendant The Citizens Bank of Ashburn was not chargeable with the knowledge of its agent, Paul Phelps. Pursley v. Stahley, 122 Ga. 362 (1) (50 SE 139); Hodgson v. Hart, 165 Ga. 882 (1) (142 SE 267). We find no error in the trial court’s grant of judgment notwithstanding the verdict to third-party defendant The Citizens Bank of Ashburn. The issues raised in the cross-appeal are moot.

Decided March 18, 1987

Rehearing denied April 1, 1987.

Willis A. Duvall, Jesse G. Bowles, for appellant.

J. Harvey Davis, for appellee.

Judgment affirmed in Case No. 73523. Cross-appeal in Case No. 73568 dismissed.

Carley and Pope, JJ., concur.


author: Benham, Judge. Deen, Presiding Judge,

text:
    73562.
    ELLIS-ADAMS v. WHITFIELD COUNTY BOARD OF EDUCATION.
    (356 SE2d 219)
   Benham, Judge.

With a series of related enumerations of error, Gilda Ellis-Adams appeals from an adverse decision of the Whitfield County Board of Education, which was affirmed by the State Board of Education and by the Whitfield County Superior Court. At the heart of this controversy is a determination by the local board that appellant had been “transferred” rather than “demoted,” and that she was not therefore entitled to a due process hearing under the Georgia Fair Dismissal Law. OCGA § 20-2-940 et seq. Though enumerated separately, appellant’s claims of error are part and parcel of one main argument; therefore, the enumerations will be treated as one.

At the time of the incident in question, Ellis-Adams had been a teacher for over twelve years. For the last five of those years, she was Language Arts Coordinator of the Whitfield District Schools, with responsibility for coordinating programs in the sixteen-member school district. On April 15, 1985, she was notified by the superintendent of her reassignment as a classroom teacher. Being dissatisfied with that decision, appellant requested a hearing before the school board pursuant to OCGA § 20-2-940 et seq. That request was granted, but the proceedings were limited to a consideration of whether she had been “transferred” or “demoted,” and the issue of “cause” was specifically excluded from the hearing. It is that limitation which forms the basis of the issue before us.

Under OCGA § 20-2-943 (a) (2) (C) and Rockdale County School Dist. v. Weil, 245 Ga. 730 (266 SE2d 919) (1980), demotion takes place when there is a reduction in responsibility, prestige, and pay. The absence of any one of those necessary elements deprives the employee of an absolute right to a hearing as is prescribed in the Georgia Fair Dismissal Law. Since it has been stipulated that the change in appellant’s position did amount to a reduction in prestige and responsibility, we are left with the task of determining whether there has been a reduction in pay. Unfortunately, since there has been very little litigation of this issue in Georgia courts, other than the skeletal framework provided in Rockdale County School Dist. v. Weil, supra, and Morris Brown College v. Walker, 155 Ga. App. 236 (270 SE2d 464) (1980), we are left to add flesh to the bone, and in doing so, we turn to decisions of federal courts and of the other state courts.

We find most instructive the recent Eleventh Circuit Court of Appeals’ opinion in Hatcher v. Bd. of Public Education, — F2d — (Case No. 86-8049, decided February 17, 1987). Although the case was decided under 42 USCA 1983 and on federal constitutional grounds, we find grist for our mill in the excellent analysis provided therein. At p. 1571 of that slip opinion, the Eleventh Circuit succinctly states that “Georgia law creates a property interest in continued employment for tenured teachers that may not be denied without granting certain substantive and procedural due process rights. OCGA § 20-2-942 (b) (1) provides that: ‘[a] teacher who accepts a school year contract for the fourth consecutive school year from the same local board of education may be demoted or the teacher’s contract may not be renewed only for those reasons set forth in subsection (a) of Code Section 20-2-940.’ OCGA § 20-2-940 (a) provides several acceptable reasons for demotion, including any ‘good and sufficient cause.’ A property interest is created by Georgia law whenever the teacher may be demoted or terminated only for cause. [Cit.]”

In Hatcher, at page 1572, footnote 9, Judge Kravitch stated that even though the salary involved in that case remained the same, there was an adverse impact on retirement benefits which amounted to a reduction in pay; therefore, a demotion had taken place. While we feel that application of the analytical framework of Hatcher would be sufficient to require a reversal of this case, we choose to provide a broader rule for measuring whether there has been a decrease in pay, a rule that fosters observance of the procedural safeguards under the Georgia Fair Dismissal law rather than avoidance of them. In doing so, we have looked to decisions in other states to see how demotions have been handled.

In Hayes v. Orleans Parish School Bd., 225 S2d 131 (La. App.) (1969) and Perkins v. Director of Personnel, 220 S2d 253 (La. App.) (1969), the Court of Appeals of Louisiana ruled that reallocation to a lower classification and yearly salary amounted to a demotion. In Norwin School Dist. v. Chlodney, 37 Pa. 284 (390 A2d 328) (1978), a reduction from full-time to half time status with a corresponding decrease in pay amounted to a demotion. In Smith v. School Dist. of Darby, 388 Pa. 301 (130 A2d 661) (1957), an assignment without annual increments of increase amounted to demotion.

From these cases we discern a clear rule: in determining whether there has been a demotion, we look to whether there has been a decrease in responsibility, prestige, and pay (Rockdale County School Dist. v. Weil, supra); and in determining whether a decrease in pay has taken place, we must look to the totality of the circumstances to see whether there has been a measurable adverse impact on the employee’s pay. Determining factors must go beyond mere cosmetic changes, and may include but are not limited to failure to provide normal increments of pay, downward adjustments in pay, decreased working hours, and decreases in employee benefits.

The record in the present case shows that in reassigning appellant, the superintendent of schools devised a method of payment whereby appellant would make the same amount during the 1985-1986 school year as she made during the 1984-1985 school year. That was accomplished by giving her a $5,568.80 reassignment fee. When questioned about this matter at the hearing, the superintendent testified as follows:

“Q. [W]hy did you give Ms. Ellis-Adams a transfer supplement this year?

A. Again, to match the promise that I’d made that her salary would remain the same and would not be lowered.

Q. Why did you promise to keep her salary the same for next year?

A. Because the fact that it was a transfer.

Q. To make it a transfer?

A. That’s correct.”

As a regular classroom teacher, appellant would make $24,028; with the addition of the reassignment supplement of $5,568.80, she would earn $29,596.80. Had she remained in the position of Language Arts Coordinator, she would have made $32,829.60; however, the coordinator position was a twelve-month position requiring summer duties, whereas the teaching position required no summer duties. The difference in pay was due to the summer duties. In sum, appellant would make $3,232.80 less per calendar year as a classroom teacher than she would make as a Language Arts Coordinator.

Applying the rule we announce above to the facts of the present case, we note that appellant has suffered both a downward adjustment in pay ($3,232.80 less per calendar year) and a decrease in working hours (from full-year employment to school-year employment only). Therefore, we reverse the decision of the trial court and rule that appellant suffered a demotion and is entitled to a hearing as is provided in the Georgia Fair Dismissal Law.

Judgment reversed.

McMurray, P. J., Banke, P. J., and Sognier, J., concur. Carley and Beasley, JJ., concur in judgment only. Birdsong, C. J., Deen, P. J., and Pope, J., dissent.

Deen, Presiding Judge,

dissenting.

“I have not been able to bring my mind to concur with my associates in the judgment rendered in this cause. This is to me a source of sincere regret. I esteem it a personal misfortune. I have labored to see this question in the light in which they view it, but have been unable to attain to the same conviction. With profound respect for them, and sincere distrust of the justness of my own conclusions, I am constrained to dissent.” Tuttle v. Walton, 1 Ga. 43, 56 (1846).

The trial judge in reviewing the appeal from the State Board of Education, which in turn had reviewed the findings of the Whitfield County Board of Education, indicated that the decision was a close question and razor-thin point of law. “It is obvious to this Court that the payment of a ‘transfer supplement’ of the exact minimum amount needed to keep the Appellant’s 1985-86 salary the same as it was in 1984-85 is a smug attempt to demote without going through a hearing. The transfer of the Appellant looks, smells, feels, sounds, and tastes like a demotion. However, under the legislative act, it meets the bare minimum legal requirements to be classified a transfer, rather than a demotion.” (R. 26)

The majority opinion in this novel and unique area seeks to “add flesh to the bone” in the “skeletal framework” by quoting from several federal circuit cases in order to “find grist for our mill.” These several federal cases, though we may find persuasive, are not binding on this court and furthermore are not exactly on point. For example, in Norwin School Dist. v. Chlodney, 390 A2d 328 (37 Pa. Cmwlth. 284) (1978), there was a reduction in work-time from full-time to halftime which is not the case here. In Hayes v. Orleans Parish School Bd., 225 S2d 131 (La. App.) (1969), there was a reduction of work time from full-time to 9. months, which was the normal full-time work period for most teachers. The main point in the latter case is that the teacher’s pay was reduced more than $200 per month, which of course would be a reduction in pay. In the instant case there was also a reduction of work-time from full-time to 9 months, but the monthly pay was subsequently the same when measured against the work hours. The actual arithmetical accuracy of the mathematical methodology under consideration is actually ascertainable, and, as stated by the trial court, meets the minimum, adequate or basic foundation for a transfer rather than a demotion.

Both the superior court and this court are required to apply the “any evidence” rule in reviewing the decision of the local board. Ran- sum v. Chattooga County Bd. of Education, 144 Ga. App. 783 (242 SE2d 374) (1978). In this case, it was undisputed that the actual monthly salary of the appellant had not been reduced. In reviewing the matter, the superior court concluded that this evidence supported a finding that no reduction in pay had occurred. This court similarly must affirm where there is such evidence to support the local board’s decision.

Decided March 13, 1987

Rehearing denied April 1, 1987

Theodore G. Frankel, Michael E. Kramer, for appellant.

F. Gergory Melton, Timothy H. Allred, for appellee.

Unless the teacher’s individual state and federal constitutional rights have been breached, courts must yield to both the local and state boards of education in providing flexibility in handling complex questions in educational areas. We should affirm the local Board of Education, the State Board of Education and the Superior Court.

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


text:
    73594.
    DAVENPORT v. KUTNER.
    (356 SE2d 67)
   McMurray, Presiding Judge.

Plaintiff Davenport brought this action against defendant Kutner for damages alleging fraud, deceit and misrepresentation in that defendant induced her to submit to unnecessary eye surgery. Plaintiff further alleged that defendant misrepresented the condition of her eye before the surgery. A jury trial was conducted and a verdict was returned in favor of defendant. Plaintiff now appeals. Held-.

1. In her first and second enumerations of error plaintiff contends the trial court erred in prohibiting her from introducing evidence of similar transactions committed by defendant. In this regard, the trial court did not allow plaintiff to cross-examine defendant and introduce documents concerning a disciplinary action initiated against defendant by the Composite State Board of Medical Examiners (Composite State Board) wherein defendant was charged, among other things, with performing unnecessary surgeries and entering false information upon a surgical report. (The Composite State Board concluded the disciplinary proceeding by entering a “Consent Order” wherein defendant denied all of the malignant allegations; but, “in the interest of resolving this matter, . . .” defendant submitted to disciplinary sanctions and monitoring by the Composite State Board.)

At the outset, we must address defendant’s contention that this evidence was properly excluded based on OCGA § 31-7-143. This Code section “provides that ‘[t]he proceedings and records of medical review committees shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee; and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions, or other actions of such committee or any members thereof.’ ‘ “(T)he purpose for the enactment of Code Ann. § 88-3204 [OCGA § 31-7-143] is to foster the delivery of quality medical services by preserving the candor necessary for the effective functioning of hospital medical review committees.” [Cit.] The statute legislatively approves the view that “(c)onstructive professional criticism cannot occur in an atmosphere of apprehension that one doctor’s suggestion will be used as a denunciation of a colleague’s conduct in a malpractice suit.” [Cit.] “It embraces the goal of medical staff candor at the cost of impairing plaintiffs’ access to evidence.” [Cit.]’ Hollowell v. Jove, 247 Ga. 678, 680 (279 SE2d 430) (1981).” Poulnott v. Surgical Assoc., 179 Ga. App. 138 (2), 139 (345 SE2d 639). In the case sub judice, plaintiff argues the evidence adduced as a result of the disciplinary proceeding against defendant is not subject to the exclusionary rule of OCGA § 31-7-143 because the Composite State Board is not a “medical review committee” as contemplated in the statute.

“ ‘Medical review committee’ is defined in OCGA § 31-7-140 (Code Ann. § 88-3201) as ‘a committee of a state or local professional society or of a medical staff or a licensed hospital, nursing home, medical foundation, or peer review committee, provided the medical staff operates pursuant to written bylaws that have been approved by the governing board of the hospital or nursing home, which committee is formed to evaluate and improve the quality of health care rendered by providers of health service or to determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care or that the cost of health care rendered was considered reasonable by the providers of professional health services in the area.’ Thus, in order for the information generated or maintained by a committee exercising review functions to be subject to the provisions of OCGA § 31-7-140 et seq., the committee must meet the qualifications set forth in OCGA § 31-7-140. Hollowell, supra at 683.” Poulnott v. Surgical Assoc., 179 Ga. App. 138, 139-140 (2), supra. From our reading of this statute, we find that the Composite State Board does not meet the requirements of OCGA § 31-7-140 inasmuch as it does not fall within the class of “medical review committees” intended to be protected by OCGA § 31-7-143. “The rationale for such statute is apparently to afford hospitals and similar institutions rendering medical care to examine, in the first instance, the propriety of procedures used within their institutions . . .” (Emphasis supplied.) Scott v. McDonald, 70 FRD 568, 573 (N.D. Ga. 1976). See Eubanks v. Ferrier, 245 Ga. 763, 765 (3) (267 SE2d 230). With this view in mind, we find the term “medical review committee” to mean a “grass roots” committee formed to make in-house examinations of the adequacy of the treatment afforded its patients. The Composite State Board is not such an “in-house” committee, formed only to regulate a narrowly defined segment of the medical community. It is an administrative body formed by legislative action for the protection of public health by regulating the practice of medicine and osteopathy throughout the State. OCGA § 43-34-21 (d). From this perspective, we find that the goal of promoting candor among the staff of medical care facilities and members of medical professional societies would not be accomplished by applying the exclusionary rule of OCGA § 31-7-143 to the Composite State Board. Consequently, the evidence sought to be introduced by plaintiff in the case sub judice should not have been excluded from evidence at trial based upon the exclusionary rule of OCGA § 31-7-143. See OCGA § 31-7-133.

We turn now to plaintiff’s contention that evidence of the disciplinary proceeding was relevant to show defendant’s fraudulent intent and “evil purpose” in persuading her to submit to the alleged unnecessary surgery. “Evidence of similar transactions is admissible to show fraudulent intent or motives. Deckner-Willingham Lumber Co. v. Turner, 171 Ga. 240 (155 SE 1); Wyatt v. State, 16 Ga. App. 817 (81 SE 802).” Grainger v. Jackson, 122 Ga. App. 123 (3), 128 (176 SE2d 279). See Ballard v. Turner, 147 Ga. App. 584, 585 (2) (249 SE2d 637). In the case sub judice, since plaintiff contends defendant fraudulently induced her to submit to unnecessary surgery and misstated her medical condition in her medical records before the surgery, evidence of similar acts by defendant should have been allowed as it related to defendant’s propensity to perform unnecessary surgeries and his intent in recommending surgery to plaintiff. However, in passing on the admissibility of similar transaction evidence, the trial court must determine whether the act on another and different occasion relates to the issue before the jury. See Johnson v. Myers, 118 Ga. App. 773, 774 (1) (165 SE2d 739). In the case sub judice, the issue before the jury related to the intentional tort of fraud and deceit, not to the negligent performance of a surgical procedure. Consequently, after reviewing the materials contained in the records of the Composite State Board’s disciplinary action against defendant, we find that the evidence concerning defendant’s false operative reports after surgery and the evidence relating to the excessive surgeries performed by defendant to be admissible. This evidence relates to defendant’s propensity to perform such surgeries and his intent in persuading plaintiff to submit to surgery. However, we find the evidence concerning defendant’s negligent post-operative treatment of other patients to be irrelevant. See Gunthorpe v. Daniels, 150 Ga. App. 113 (257 SE2d 199). Further, we find the information contained in the “Consent Order,” concerning the details of defendant’s disciplinary punishment, to bear little, if any, significance on defendant’s propensity to commit fraud by recommending unnecessary surgery. Consequently, the trial court did not err in excluding the “Consent Order” from evidence. However, since the trial court precluded plaintiff from examining defendant concerning other relevant similar transactions, and since this evidence was likely to bear on the outcome of the jury’s verdict, the trial court erred in failing to grant plaintiff’s motion for new trial in this regard.

Decided March 17, 1987

Rehearing denied April 1, 1987

Olin Rambo, for appellant.

Sidney F. Wheeler, Stephen H. Sparwath, for appellee.

2. Other errors alleged in plaintiff’s remaining enumerations of error, if harmful at all, are unlikely to occur upon retrial.

Judgment reversed.

Carley and Pope, JJ., concur.


text:
    73075, 73076.
    HARRELL et al. v. THOMPSON (two cases).
    (356 SE2d 69)
   Benham, Judge.

In 1983, appellants Harrell and Southern Diversified Properties filed several suits against appellee Thompson, seeking resolution of a dispute concerning the ownership of and authority to control AMC Realty Company. The decision in a related case may be found in Thompson v. Bank of the South, 172 Ga. App. 579 (323 SE2d 877) (1984). The various lawsuits were consolidated for trial, and the jury returned a verdict consisting of five parts. In four areas the jury found in favor of appellee Thompson and awarded her damages of $68,750 from each appellant; in the fifth part, the jury found that appellant Southern Diversified Properties owned 100% of the stock of AMC Realty. Subsequent to the jury’s return of its verdict, the trial court granted appellee’s motion for directed verdict on appellants’ claims against appellee. The trial court later granted appellee’s motion for judgment notwithstanding the fifth part of the verdict, and found appellee to own 50% of the stock in AMC Realty. In Case No. 73075, appellants appeal from the judgment entered on the jury verdict; in Case No. 73076, appellants seek reversal of the trial court’s entry of j.n.o.v. on the fifth part of the jury’s verdict.

1. Appellant Harrell contends that the trial court erred in failing to direct a verdict in his favor on Thompson’s counterclaim for malicious use of process and for malicious interference with her contractual relations with AMC Realty. Inasmuch as there is nothing in the record to indicate that appellant Harrell sought a directed verdict on appellee’s malicious use of process claim, we are precluded from consideration of this enumeration. “ ‘Grounds which may be considered on appeal are limited to those which were urged before the trial court. [Cit.]’ ” Cox v. City of Lawrenceville, 168 Ga. App. 119 (1) (308 SE2d 224) (1983). While appellant Harrell did seek a directed verdict on the malicious interference claim, “ ‘[a] directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict. OCGA § 9-11-50 (a) [Cit.]’ ” Wheeler v. McDonald, 175 Ga. App. 785 (2) (334 SE2d 367) (1985). A brief recitation of salient facts is necessary to show that the evidentiary burden for the direction of a verdict was not met.

In support of her allegation that appellant Harrell had maliciously interfered with her contractual relationship with AMC Realty, Thompson showed that she had opened a bank account in order to carry on the business of AMC Realty without the interference of Harrell. Thereafter, the trial court issued an order denying Harrell’s motion for temporary restraining order which sought to restrain Thompson from acting on behalf of AMC Realty. Disregarding the order, Harrell caused to be sent to all area banks a letter stating appellee was not authorized to do business on behalf of AMC Realty. The bank where appellee had opened AMC Realty’s account received a copy of the letter and, acting upon its contents, froze the AMC Realty account. As a result, numerous checks were returned and Thompson’s credit record was blemished. The trial court issued another order instructing Harrell not to interfere with Thompson’s operation of AMC Realty. Despite receipt of this order, Harrell did not retract the letters sent to the area banks, nor did he retract articles with similar language which he had placed in the newspaper. The trial court issued still another order which demanded that Harrell retract any and all notices sent to appellee’s purporting that Thompson lacked authority to act on behalf of AMC Realty. Harrell failed to comply with this order as well.

The above facts establish that the evidence and all reasonable deductions therefrom, considered in a light most favorable to appellant, did not demand a verdict in favor of appellant Harrell. Therefore, the denial of Harrell’s motion for directed verdict was not error.

2. In their second enumeration of error, appellants contend the trial court erred in failing to dismiss appellee’s counterclaim. The record is devoid of any motion to dismiss the counterclaim. “Inasmuch as there is nothing whatsoever in the record to support this contention, appellants’] enumeration is without merit.” Acker v. Jenkins, 178 Ga. App. 393 (3) (343 SE2d 160) (1986).

3. Appellants next assert that the trial court erred in directing a verdict for Thompson on appellants’ claims. The directed verdict in favor of appellee was not made until after the jury had rendered a verdict in her favor. This procedure was expressly approved in Mayor &c. of Savannah v. Palmerio, 242 Ga. 419 (249 SE2d 224) (1978), and error, if any, was harmless in light of the jury verdict for appellee. Gibbs v. First Fed. &c. Assn., 161 Ga. App. 27 (3) (289 SE2d 1) (1982).

4. Appellants’ fifth enumeration of error, entry of a judgment in favor of appellee based on the verdict of the jury, is deemed abandoned by appellants’ failure to argue it. Rule 15 (c) (2) of the Rules of the Court of Appeals. Brown v. Phillips, 178 Ga. App. 316 (2) (342 SE2d 786) (1986).

5. The appeal in Case No. 73076 arises from the grant of j.n.o.v. to appellee. While the jury had returned a verdict finding that appellant Southern Diversified Properties owned 100% of the stock of AMC Realty, the trial court granted appellee’s motion for j.n.o.v., concluding that appellee owned 50% of the stock of AMC Realty.

There was evidence presented at trial that, at one time, Southern Diversified Properties had owned all of the AMC Realty stock. Entered into evidence, however, were documents signed by appellant Harrell as president of Southern Diversified Properties reflecting the corporate decision to sell 50% of its stock in AMC Realty to appellee, and acknowledging that the sale had taken place. While Harrell testified that appellee was to receive 10% of AMC Realty stock, the documents he signed as president of Southern Diversified Properties belie his testimony.

Where a verdict for a party is demanded as a matter of law and the jury has returned an adverse verdict, the grant of a j.n.o.v. is not error. National Property Mgt. &c. v. Pope, 163 Ga. App. 713 (3) (295 SE2d 848) (1982). A j.n.o.v. may be granted where “there can be but one reasonable conclusion as to the proper judgment.” Johnston v. Bill Fancher & Assoc., 179 Ga. App. 67 (1) (345 SE2d 144) (1986). Since all the evidence led to the conclusion that appellee owned 50% of the stock of AMC Realty, the grant of appellee’s motion for j.n.o.v. was proper.

Decided March 17, 1987

Rehearing dismissed April 2, 1987.

Charles N. Center, for appellants.

Martin L. Ellin, William R. King, for appellee.

6. Appellee has moved for the imposition of damages for a frivolous appeal pursuant to OCGA § 5-6-6. Although we find no merit in appellants’ enumerations of error, we cannot conclude that the appeal was totally frivolous or solely for purposes of delay. Accordingly, appellee’s motion for the assessment of penalties is denied.

Judgments affirmed.

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


author: Benham, Judge. Beasley, Judge,

text:
    73228.
    QUATTLEBAUM v. COWART et al.
    (356 SE2d 91)
   Benham, Judge.

This appeal follows this court’s grant of appellant’s application for interlocutory review of the trial court’s denial of his motion for partial summary judgment.

1. After the appeal was filed, appellees’ counsel became cognizant of the fact that twelve depositions had never been filed in the trial court. Counsel notified the trial court who, at the request of counsel for appellant and appellee, ordered the depositions filed and sent to the appellate court as supplementary record. However, because there is no evidence that the depositions were available to the trial court when it rendered its decision denying summary judgment, we cannot consider those depositions upon review of the trial court’s decision. See Pitman v. Griffeth, 231 Ga. 136 (2) (200 SE2d 760) (1973); Action, Inc. v. Toddler’s Lane, 150 Ga. App. 532 (3) (258 SE2d 172) (1979).

2. Appellant performed a cholecystectomy (gall bladder removal) on Mrs. Cowart on January 2, 1974. When she developed complications, appellant, suspecting residual gallstones in his patient’s ducts, reopened Mrs. Cowart on January 24, 1974. He did not find any gallstones, but did remove 4,000 cc of bile from Mrs. Cowart’s abdominal cavity. He was unable to locate the left hepatic duct, but connected the right hepatic duct to the small intestine. On the medical records, however, he stated that he had connected the common hepatic duct to the small intestine. Mrs. Coward, still suffering complications, underwent a third operation at the hands of appellant in August 1975; was seen at the Mayo Clinic later that year; and suffered complications for the next five years. In 1981, she was seen by a specialist at Emory Clinic who connected Mrs. Cowart’s left hepatic duct to her gastrointestinal tract.

In 1982, appellees filed this medical malpractice action against appellant, contending he was negligent in his care of appellee Linda Cowart in 1974 and 1975, and had caused her seven years of suffering when he failed to connect her left hepatic duct to her gastrointestinal system. Appellees also allege that appellant filed incorrect and misleading medical reports, thereby preventing appellees and other physicians from determining Mrs. Cowart’s true physical condition. Appellant sought summary judgment on the ground that the two-year statute of limitation of OCGA § 9-3-71 precluded appellees’ suit. Appellees contended that the statute of limitation was tolled by fraud allegedly perpetrated by appellant. OCGA § 9-3-96. Appellant also sought partial summary judgment, maintaining that the fraud alleged by appellees did not relate to the January 2, 1974, surgery appellant performed on Mrs. Cowart. Appellant’s sole enumeration of error on appeal is the trial court’s denial of his motion for partial summary judgment.

“The statute of limitation for medical malpractice is clear and unambiguous: ‘Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which the negligent or wrongful act or omission occurred.’ (Emphasis supplied.) OCGA § 9-3-71.” Gillis v. Palmer, 178 Ga. App. 608 (1) (344 SE2d 446) (1986). See also Sutlive v. Hackney, 164 Ga. App. 740 (297 SE2d 515) (1982) (in which, as here, the alleged acts of malpractice occurred before the 1976 legislative revision of the medical malpractice statute of limitation, and suit was brought after the change). However, fraud perpetrated by a defendant doctor will toll the statute of limitation. See OCGA § 9-3-96; Gillis v. Palmer, supra, Division 2.

Appellees allege appellant was negligent in his care and treatment of appellee Linda Cowart in 1974 and 1975, more than two years before the instant action was filed. Appellees contend that appellant committed fraud, tolling the statute of limitation, by making deliberate misrepresentations in medical records and by reassuring appellees he had done all he could to correct the problems with Mrs. Cowart’s biliary system. On summary judgment, all facts and favorable inferences therefrom must be construed in favor of the non-movant. Pritchard v. Neal, 139 Ga. App. 512 (1) (229 SE2d 18) (1976). “In cases involving a relation of trust and confidence, such as a physician and patient, silence on the part of the physician when he should speak, or his failure to disclose what he ought to disclose, is as much a fraud in law as an actual affirmative false representation. [Cit.]” Lea gan v. Levine, 158 Ga. App. 293 (1) (279 SE2d 741) (1981). In the case at bar, there is evidence of an actual affirmative false representation on the part of appellant as well as evidence that he never told appellees that Mrs. Cowart’s problems were caused by his failure to connect the left hepatic duct to the small intestine. Inasmuch as appellant’s failure to inform appellees had its inception in the January 2 operation, the trial court did not err in denying appellant’s motion for partial summary judgment. The questions of the actual existence of such fraud as well as appellees’ diligence in discovering the injury and the fraudulent concealment are, in this case, for the jury. Shved v. Daly, 174 Ga. App. 209, 210 (329 SE2d 536) (1985).

Appellant and the dissent maintain that partial summary judgment should have been granted appellant because they contend there is no evidence of fraud relating to the January 2 operation, and that all the evidence of fraud related to the January 24 operation and appellant’s subsequent treatment of Mrs. Cowart. However, construing the facts and inferences drawn therefrom in favor of appellees/nonmovants, the record reflects that Mrs. Cowart had 4,000 cc of bile in her abdominal cavity on January 24 because action was not taken during the January 2 operation to ensure proper bile flow into the small intestine. While it might be argued that Mrs. Cowart’s postoperative condition after the January 2 operation might have triggered the running of the statute of limitation, the record is replete with evidence that the fraud allegedly perpetrated by appellant on January 24 and beyond tolled the running of that statute of limitation. Since appellees’ lawsuit was filed within one year of the discovery of the alleged negligence and fraud, the statute of limitation, though it may be said to have partially run as to the January 2 operation, had not expired. The fraud alleged by appellees to have been perpetrated by appellant prevented appellees from realizing appellant’s alleged negligence on January 2 just as it prevented them from discovering subsequent alleged negligence as well as the existence of the fraud itself.

Our decision today comports with previous appellate pronouncements on the issue of limitation-tolling fraud in medical malpractice suits. In the present case, the record supports a reasonable inference that appellant knowingly attempted to conceal his negligence throughout his post-January 2, 1974 relationship with appellees (see Sutlive v. Hackney, supra) and that appellant failed to disclose or acknowledge that Mrs. Cowart’s condition was related to his previous treatment of her. See Lorentzson v. Rowell, 171 Ga. App. 821 (321 SE2d 341) (1984); Leagan v. Levine, supra. There is evidence from which it can be inferred that appellant knew of his improper conduct and tried to cover up such conduct (compare Gillis v. Palmer, supra), and appellees’ allegations of fraud amount to more than mere misdiagnosis. Compare Johnson v. Gamwell, 165 Ga. App. 425 (301 SE2d 492) (1983).

Decided March 19, 1987

Rehearing denied April 2, 1987

Viewing the evidence of record in favor of appellees, we conclude the trial court did not err in denying appellant’s motion for partial summary judgment.

Judgment affirmed.

Banke, P. J., Carley and Pope, JJ., concur. Deen, P. J., and McMurray, P. J., concur in judgment only. Birdsong, C. J., Sognier and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

1. I agree that in our consideration of the case, we cannot take into account the depositions which were not considered by the trial court in ruling on the motion. Although the court may have used copies, it being clear that the originals were not filed until after the entry of the order appealed from, the record does not so demonstrate and we cannot assume it.

2. I dissent because I can find no evidence in the record which raises a question of fact with respect to fraud as to the first operation. That was the surgery on January 2 in which Dr. Quattlebaum found a number of small stones in Mrs. Cowart’s gall bladder and removed the gall bladder. Even assuming he did so negligently, in order for this medical procedure to be tested legally, it would have to survive the statute of limitation which otherwise controls. Fraud would toll it, to be sure, but there is no evidence of fraud as to this first surgery; what is focused on by the majority is evidence of fraud with respect to the surgery on January 24, which is quite another matter and is furthermore not a subject of this appeal.

“If facts do exist which would toll the statute of limitations, the appellant [plaintiff] has the burden of setting forth and supporting these facts, Carroll v. Pittsburgh Steel,” [Co., 103 FSupp. 788, 790 (W. D. Pa. 1952)]. Wade v. Thomasville Orthopedic Clinic, 167 Ga. App. 278, 281 (2) (306 SE2d 366) (1983). There must be evidence of fraud, as to the matter complained of, so as to excuse plaintiff for not bringing suit within the statutorily prescribed time. See Shved v. Daly, 174 Ga. App. 209 (329 SE2d 536) (1985); Gillis v. Palmer, 178 Ga. App. 608, 610 (2) (344 SE2d 446) (1986). The absence of any fraud with respect to the January 2 surgery entitles defendant to a partial summary judgment on that issue.

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

Thomas A. Withers, for appellant.

Albert Fendig, Jr., William H. Pinson, Jr., for appellees.