text:
    A92A2333.
    LEVENTHAL v. SEITER et al.
    (430 SE2d 378)
   Blackburn, Judge.

The appellees, William and Kathleen Seiter, in July 1989, brought a breach of contract action against the appellant, Ronald Leventhal, seeking monetary damages and specific performance pursuant to the terms of three separate contracts for the sale of three different properties and improvements thereon. The appellant responded, asserting several defenses and counterclaims, including counterclaims for fraud and breach of contract. The case was tried by the trial court sitting without a jury, and on October 8, 1991, judgment was entered against the appellant in the amount of $65,610 principal and interest, $33,604 attorney fees, cost of the action and post-judgment interest. The appellant moved for new trial and to set aside the judgment, both of which were subsequently denied by the trial court, and this appeal followed.

In the summer of 1988, the appellees, one of several builders of custom homes on lots in a subdivision that had been developed by the appellant, were contacted by the sales agent for the subdivision concerning the possibility of purchasing four remaining lots in the subdivision that the appellant had been unable to sell. The appellant needed to sell these lots to obtain working capital and to increase his cash flow. However, the appellees initially were not interested in purchasing these lots because the terrain of the lots was undesirable and they would be difficult to build upon. In addition, the appellees did not want to tie up their working capital in constructing speculative homes on these lots because the homes would be difficult to sell.

As a result of the appellees’ concern over the risks of purchasing these lots, the appellant suggested that the appellees design homes for these lots, supervise the construction of the homes, and the appellant would pay them $4,000 for their efforts. The appellant further indicated that he would obtain construction loans on the properties and bear the responsibility for all costs and expenses. This arrangement was suitable to the appellees, but the appellant was unable to obtain a construction loan from the bank. Thereafter, the appellees indicated that, in order for them to obtain a construction loan on the three lots, the appellant would have to agree to purchase the property for a certain amount to decrease the risk of the venture. A representative of Smyrna Bank & Trust (“the bank”), was consulted about this arrangement, and was willing to allow the appellees to borrow the money because of the appellees’ good track record. The bank, however, conditioned the loan on the appellant’s execution of contracts in favor of the appellees for the purchase of the properties in the event that the appellees were unable to sell the homes within a certain period of time.

Pursuant to this agreement between the parties, the appellees designed plans for the construction of homes on each of the three properties. On behalf of the appellant, the sales agent for the subdivision approved the home designs and approved the proposed cash prices for the homes of $117,000 for lot #1, $115,500 for lot #14, and 114,500 for lot #29 in cash on behalf of the appellant. The prices of the homes included the cost of the lots. Afterwards, the appellees applied for a construction loan to buy the three lots and build homes upon them. Based upon the agreement that the appellant would purchase each of the properties in the event that they were not sold to third parties, the bank agreed to loan the appellees in excess of $287,000 for the construction of homes on each of the three properties. An attorney for the bank prepared the three contracts evidencing the agreement between the parties that the appellant would purchase lot #1 for $117,000, lot #14 for $115,500, and lot #29 for 114,500 in cash, before May 15, 1989, if any of the homes had not been purchased by third parties by that date.

The contract contained a clause which provided that if any of the properties were sold by either party at a price that would net the seller an amount equal to or greater than the sales price under the agreement, the contract between the appellant and the appellees would become a nullity, ending all obligations to the appellees and the appellant under original contract for any lot which was so sold. This clause was later amended in writing by the parties on October 21, 1988, and provided that if any third party sale netted to the seller an amount in excess of the agreed upon sales price, the appellees and the appellant would split the profits equally. The original contract also contained a merger clause, which provided that the agreement “constitute [d] the entire agreement between the parties and no modifications, representations, inducements, promises or agreements . . . not embodied herein shall be of any force or effect.”

On October 14, 1988, at the closing of the construction loan, the bank executed quitclaim deeds on each of the properties in favor of the appellant, releasing and conveying to the appellant, all of the bank’s rights, title and interest in each of the lots. The appellees purchased the three lots in question from the appellant, and paid the appellant $64,500, $21,500 for each lot, out of the loan receipts that the appellees simultaneously received from the bank for the purpose of constructing new homes on the three lots. Thereafter, the appellant executed a warranty deed on each of the three lots in favor of the appellees. The appellees subsequently built homes on each of the three lots. Although the homes were marketed by the sales agent of the subdivision and a private realtor, the appellees were unable to sell any of the three properties before May 1989.

On May 15, 1989, pursuant to the terms of the contracts between the parties, the appellees demanded that the appellant purchase the homes at the contract prices and the appellant refused. In a letter of that same date, the appellant, through counsel, indicated that the contracts did not reflect all of the terms and agreements of the parties because the agreed upon purchase price was $4,000 above the cost incurred by the appellees in building the homes. The appellant further demanded that the appellees convey title to the properties for the sum of $4,000 plus costs. On May 16, 1989, the appellees responded, stating that the contract terms were entirely reflected in the agreement. As a result of the appellant’s failure to comply with the terms of the contract, this action ensued. The properties in question and the homes thereon were subsequently purchased by third parties for less than the price contained in each of the contracts after the commencement of this action.

1. In his first enumeration of error, the appellant contends that the trial court erred in refusing to grant further discovery pursuant to his motion to compel. We disagree.

This action was filed on July 5, 1989, and pursuant to a consent order that had been entered into between the parties on February 19, 1990, the time period for discovery had been extended through June 1, 1990. The appellant requested that the court compel responses to his interrogatories and request for production of documents on September 10, 1991, over a year after the discovery deadline had expired.

“ ‘Under the discovery provisions of the Civil Practice Act, the trial judge is granted broad discretion. Historically, it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court’s exercise of such discretion in absence of abuse. (Cits.)’ [Cit.]” Freeman v. Ripley, 177 Ga. App. 522, 523 (339 SE2d 795) (1986). Considering that the time period for completion of discovery, by consent of both parties, had expired approximately 15 months before the appellant’s motion to compel discovery, and the motion was filed approximately 20 days before the scheduled date for trial, we find no abuse of discretion in the trial court’s denial of the appellant’s motion to compel discovery. Consequently, this enumeration is without merit.

2. The appellant contends that the appellees did not produce information concerning the appellees’ failure to meet certain standards in compliance with the appellant’s Notice to Produce, and the concealment of this recently discovered information warrants a new trial. The appellant further asserts, in the alternative, that he is entitled to a new trial based upon the affidavit of Sandra Smith, the appellant’s secretary, which impeaches the testimony of one of the appellees’ witnesses. In her affidavit, Ms. Smith avers that Mike Connolly, a former employee of the appellant, wanted her to ask the appellant to pay him $5,000 to prevent him from testifying against the appellant ever again. The appellant also offers as a basis for a new trial, the affidavit of Randy Chambers, another builder, who avers that the appellees, through counsel, tried to encourage him to testify against the appellant contrary to his conviction.

“ ‘It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be. to impeach the credit of a witness.’ [Cits.] All six requirements must be complied with to secure a new trial. [Cit.]” Tim berlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980). “[A] trial court’s denial of the motion [for new trial] will not be reversed absent an abuse of discretion. [Cits.]” Dick v. State, 248 Ga. 898, 901 (2) (287 SE2d 11) (1982).

In the case sub judice, the appellant has not shown that it was not from want of due diligence that he did not acquire this information earlier. In addition, he has not shown that the information that he proposes to submit is so material that it would have resulted in a different judgment. Further the affidavit of Mike Connolly serves as merely impeachment evidence and it does not warrant a new trial. Therefore, we conclude that the trial court did not abuse its discretion in failing to grant the appellant’s motion for new trial based upon the appellant’s failure to meet all of the requirements enunciated in Timberlake.

3. In enumerations 3 and 4, the appellant contends that the trial court erred in admitting documents in violation of OCGA §§ 24-7-1; 24-7-2; 24-5-2; 24-5-3; and 24-5-4. However, these enumerations are not supported by argument or citation of authority. Accordingly, these enumerations are deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). Plante v. State, 203 Ga. App. 33, 35 (3) (416 SE2d 316) (1992).

4. The appellant contends that the trial court erred in finding that the contract and the amendment were complete, thereby excluding parol evidence, although the testimony at trial showed that collat: eral oral agreements existed.

“ ‘An oral agreement between the parties, made contemporaneously with the execution of the note or prior thereto relating to a condition not expressed in the note is incompetent to change the contract as represented on the face of the note.’ [Cit.] Evidence as to an alleged understanding which is antagonistic to and inconsistent with the terms of the instrument is inadmissible to vary such terms and legally insufficient to sustain a defense of fraud. [Cits.]” Curtis v. First Nat. Bank of Commerce, 158 Ga. App. 379, 381 (1) (280 SE2d 404) (1981). As parol evidence is inadmissible to challenge the unambiguous terms of the contract, we conclude that the appellant’s enumeration is without merit.

5. The appellant also asserts that the trial court erred in finding that the underlying contracts were enforceable because the evidence shows that the appellees wilfully misled the appellant as to the terms of the contract, including the contract price of the property in question. In the alternative, the appellant contends that if the appellee did not wilfully mislead the appellant, then a mutual mistake of fact occurred. We disagree.

Fraud which constitutes a ground for voiding a contract under OCGA § 13-5-5 must be fraud which induced the parties to enter the contract. Castellana v. Conyers Toyota, 200 Ga. App. 161, 165 (2) (407 SE2d 64) (1991). “ ‘In order to show fraud and misrepresentation in the procurement of the contract as a defense to an action on the contract, it is not sufficient to show that false representations were made, which were known to be false and which were made with the intention to deceive. It must also be shown that the defendant exer-i cised due care to discover the fraud. . . . (Cits.)’ [Cit.]” Charter Medical Mgmt. Co. v. Ware Manor, 159 Ga. App. 378, 380 (2) (283 SE2d 330) (1981). “ ‘It is peculiarly the province of the [factfinder] to pass on these circumstances. (Cits.)’ ” Allen v. Sanders, 176 Ga. App. 647, 648 (1) (337 SE2d 428) (1985).

In this case, the appellant has not shown that he has been duly diligent in ascertaining the fraud that is alleged to exist. In fact, the appellant admitted at trial that he was present at the closing in October 1988, scanned the contract and signed the contract on that date, which contained a merger clause, providing that the agreement constituted the “entire agreement between the parties and no modifications, representation, inducements, promises or agreements, oral or otherwise, between the parties not embodied herein shall be of any force or effect whatsoever.” The appellant also admitted that he did not carefully read the contract until the spring of 1989, months after the execution of the contract, and, at that point, he allegedly discovered that the contract did not reflect the true understanding of the parties.

Further, “a defendant seeking in a court of law to avoid his contract for [the defense of mutual mistake] must allege the grounds of the mistake as fully as he would be required to do in a court of equity. [Cits.] This means that the pleading must show the particular mistake and illustrate how it occurred, why the terms of the contract which the pleaders insist should have been inserted were left out, or how terms not agreed upon came to be inserted. [Cits.]” Mangham v. Hotel & Restaurant Supply Co., 107 Ga. App. 619 (131 SE2d 74) (1963). The appellant has failed to specifically allege in his counterclaim how any mutual mistake occurred and why the terms that should have been inserted were allegedly left out of the agreement. Accordingly, this enumeration is also without merit.

6. The appellant contends that the trial court erred in failing to reduce the judgment in mitigation of the appellees’ damages in accordance with OCGA § 13-6-5.

While it is true that in a breach of contract action, the injured party is “bound to lessen the damages as far as is practicable by the use of ordinary care and diligence,” OCGA § 13-6-5, the contention that one has failed to comply with the duty to mitigate damages “must be supported by evidence from which [the factfinder] could reasonably estimate the amount by which damages could have been mitigated. [Cits.] Considine Co. of Ga. v. Turner Communications Corp., 155 Ga. App. 911, 913 (3) (273 SE2d 652) (1980). In the instant case, the appellant did not present any evidence by which the trial court could have reasonably estimated the amount by which damages could have been mitigated. Consequently, this enumeration is without merit.

7. The appellant contends that the trial court erred in awarding attorney fees to the appellees pursuant to OCGA § 13-6-11, because the record does not support any finding that the appellant was stubbornly litigious or caused unnecessary expense or delay. We disagree.

“The issue of attorney fees under OCGA § 13-6-11 is a question for the [factfinder] and an award will be upheld if any evidence is presented to support the award. [Cit.]” Arford v. Blalock, 199 Ga. App. 434, 439 (9) (405 SE2d 698) (1991). In the case sub judice, the trial court found that the appellant caused the appellees unnecessary trouble and expense in litigation, warranting the payment of attorney fees, based upon his failure to comply with the terms of the unambiguous contract. The contract clearly required the appellant to purchase the lots in question from the appellees on a date certain and the appellant has not presented sufficient evidence to justify his absolute failure to do so. We conclude that there is evidence to support the trial court’s finding, and the award of attorney fees must be upheld.

8. The appellant contends that the trial court erred in finding that the appellees acted in good faith in fulfillment of the terms of the contract. He further asserts that their failure to perform according to the terms of the contract bars this action.

“ ‘When a trial court sits as both judge and jury, the court’s findings of fact are binding on appeal, and, unless wholly unsupported or clearly erroneous, will not afford a basis for reversal. (Cits.) On appeal, this court must not substitute its judgment for that exercised by the trial court when there is some support for the trial court’s conclusion. Our duty is not to weigh evidence de novo, but to merely determine if there is any evidence which supports the judgment below. (Cit.) Even in the face of conflicting evidence, the trial court’s judgment will be upheld as long as there is “any evidence” to uphold the lower court’s determination. (Cit.)’ [Cit.]” Edwards v. Wilson, 185 Ga. App. 514, 515 (1) (364 SE2d 642) (1988).

In this case, there is evidence in the record to show that the appellees, in good faith, complied with the terms of the contractual agreement. They constructed the homes on the properties, and were ready, willing and able to convey title of the properties to the appellant on May 15, 1989. Contrary to the belief of the appellant, the contract did not require the appellees to aggressively market the property, although the appellees put forth effort to have the property marketed by the agent on the property as well as by a private realtor. The amendment to the contract merely permitted the sale of the property to a third person by either party. Therefore, this enumeration is also without merit.

9. The appellant asserts that the trial court erred in requiring a supersedeas bond pending the motion for new trial, because the evidence produced did not show that good cause existed as required under OCGA § 9-11-62 (b). On the contrary, one of the appellant’s former employees testified that, at the time that the appellant was required to purchase the properties based upon the terms of the contract, the appellant was having financial difficulties. In fact, the appellant’s former attorney withdrew from the representation of the appellant because of his financial difficulties. In addition, the appellant’s former employee further testified that the appellant had no intention of abiding by the terms of the contract. Another builder testified that he declined a similar offer made to him by the appellant because he did not think that the appellant would have been in a financial position to purchase these properties based upon information that he had received that the appellant was experiencing financial problems.

It is within the inherent discretion of the trial court to require a party to give a bond upon the filing of a motion for new trial pursuant to OCGA § 9-11-62 (b) and the statute does not require that the trial court outline in the order that good cause has been shown. Considering the above evidence adduced at trial, we find that good cause existed and the appellant has not shown that the trial court abused its discretion in requiring the appellant to post a supersedeas bond pending the motion for new trial. Accordingly, this enumeration is without merit.

10. The appellant contends that the trial court erred in requiring the appellant to answer post-judgment interrogatories which included information concerning the appellant’s wife, not a party to the action, in violation of the husband-wife privilege under OCGA § 24-9-21.

OCGA § 24-9-21 specifically provides that communications between husband and wife are excluded on the grounds of public policy. However, a bank statement addressed to the appellant’s wife does not constitute a communication between appellant and his wife. Accordingly, this enumeration is also without merit.

11. Lastly, the appellant contends that the trial court erred in finding that no supersedeas was in effect pending the appeal, because a timely notice of appeal was filed, payment of the trial transcript had been made, and he was not at fault for the failure of the superior court to transfer the transcript. We disagree.

“In a civil action, the filing of a notice of appeal does not serve as a supersedeas until all costs in the trial court have been paid. OCGA § 5-6-46 (a); [Cit.]” Duncan v. Ball, 172 Ga. App. 750, 751 (1) (324 SE2d 477) (1984). In this case, the record shows that the costs of the appeal had not been paid at the time that the trial court rendered .its decision. Accordingly, the trial court was correct in concluding that a supersedeas was not in effect as of May 27, 1992. Although the appellant asserts that this court should alter the rule to establish that if an appeal has been timely filed, a supersedeas is in effect if the bill of costs has not been presented to an appellant, we are without authority to do so. “[W]here, as here, the language of a code section is plain, unambiguous and positive, and is not capable of two constructions, no court has a right to construe it to mean anything other than what it declares. . . . [Cits.]” Sirota v. Kay Homes, 208 Ga. 113, 115 (3) (65 SE2d 597) (1951).

Decided March 12, 1993 —

Reconsideration denied March 24, 1993

Ronald S. Leventhal, pro se.

Bauer, Deitch & Raines, Henry R. Bauer, Jr., for appellees.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A92A2349.
    RICE v. STATE FARM FIRE & CASUALTY COMPANY.
    (430 SE2d 75)
   Birdsong, Presiding Judge.

Appellant Joseph G. Rice d/b/a Curtis Mathes and Rice Home Electronics Corporation (Rice) appeals from the judgment entered and the order of the trial court denying his motion for new trial and reformation of verdict.

This case involves an action brought by Rice for recovery under a business policy of insurance issued to him by appellee State Farm Fire & Casualty Company (State Farm). In September 1988, appellant reported that his business had been burglarized. The inventory in the store was floor-plan financed by ITT Commercial Credit (ITT) which, at the time of the burglary, had an interest in the missing merchandise of $25,184.11. Mr. Rice filed a “Sworn Statement in Proof of Loss” with State Farm, claiming a loss of merchandise of approximately $30,500 in value. ITT was a loss payee under the policy.

Apparently ITT filed a separate suit, pursuant to the terms of its floor plan security agreement, as a creditor of appellant to obtain compensation as to certain inventory missing and not paid for by appellant. The ITT suit was settled by execution of a settlement agreement and mutual release. This agreement and release pertinently provided that ITT and the Curtis Mathes Corporation (appellant’s franchisor) fully relinquished any and all claims to any future insuranee proceeds payable to appellant or his business from State Farm. The agreement and release also contained a broad release provision by ITT to “fully release . . . and forever discharge [appellant and others], of and from all, and all manner of, action or actions, cause or causes of action, suits . . . damages, claims, contests and demands of whatsoever kind of character, in law or equity, whether known or unknown, which exists or may exist on the date hereof for, upon or reason of any agreement, document, writing, instrument . . . act, omission or thing or cause whatsoever.”

The trial court subsequently granted partial directed verdict for State Farm, ruling that appellant could not recover for the amount owed to ITT at the time of the loss. The trial court also removed from consideration of the jury the issue of bad faith and attorney fees pursuant to OCGA § 33-4-6. However, the trial court sent appellant’s entire claim (other than bad faith and attorney fees) to the jury. The jury returned a verdict in favor of appellant for $26,592.70; pursuant to its earlier ruling, the trial court deducted $25,184.11 (the established amount of ITT’s security interest in the missing inventory) from the verdict, and entered judgment for appellant in the sum of $1,408.59. Held:

1. Appellant asserts the trial court improperly withdrew the issue of bad faith and attorney fees (OCGA § 33-4-6) from consideration of the jury by granting partial directed verdict to appellee as to this issue.

There exists substantial, unrefuted evidence in this case that there was no visible sign of pry marks or breaking and entering into the doors of either appellant’s business or into the adjacent premises being used by a construction company. The adjacent premises were separated from appellant’s business by only a fire wall. Further, there was evidence the sheetrock section that was found removed from between the two premises, at a height of at least eight feet from the floor, had a single pry mark on appellant’s side. There were no scuff marks or dirt marks found on either the construction company’s or appellant’s side of the common wall, which would indicate that someone had slid down the wall. Neither was any of the dust disturbed on the tops of the refrigerator or the boxes located in proximity to where the sheetrock had been removed. The location of the only pry mark found made it appear that the sheetrock had been removed from appellant’s side of the wall. The piece of sheetrock that was removed was the only one that could have been removed without bumping into some object located against appellant’s side of the wall. Moreover, although it had rained very hard the night before, no muddy footprints were found in either appellant’s or in the construction company’s business areas. Further, although several lines were in the building, a single phone line had been cut or broken so as to disable the line from the alarm (and Rice was a very competent and experienced electrician). It was “almost impossible to get into [appellant’s business] from [the area where the sheetrock was removed] without [activating] that alarm system,” as a person would have to cross the alarm path system to cut the phone wire. It was also observed that none of the remaining boxes appeared to have been checked for contents. In the opinion of a deputy sheriff, the sheetrock was taken down from appellant’s side.

The auditor for ITT testified that Rice gave her a list of allegedly stolen items. She did a complete floor check audit of retail, rental, and lease items, and found some discrepancies in Rice’s list. Of the approximate one hundred items, which Rice listed as stolen, five or six were found in stock and about nine items were found to have been rented out. At the time of the theft, Rice was in default on his principal payment to ITT by several months; he also owed back store rent.

Although requested by the police for serial numbers of the property determined to be stolen, Rice never provided that information to the policemen who were investigating the incident. State Farm did not receive the proof-of-loss form until March 15, 1989, although the alleged break-in occurred on September 10 or 11, 1988.

A member of State Farm’s senior referral unit for suspicious claims testified he also observed no pry marks, footprints or scuff marks on the construction company side of the wall, and found no sign of forced entry on doors. Rice declined to sign a consent form for release of certain information, such as phone call records, bank records, and various business records. State Farm never supplied the police with any serial numbers because they never got a confirmed list from Rice verifying which items by model number and serial number had been stolen. The senior referral unit member also made a request of both Rice and an independent contractor hired by Rice for a list of all former and current employees, but he never was given this information.

Evidence was also admitted without objection, pertaining to Rice’s past claims history. Previously, Rice had taken his station wagon to a local service center to have tires installed; he was told tire installation would take a couple hours; while waiting, he was observed by a vending machine located directly in front of the center’s alarm box; the alarm box was subsequently found to have been moved out of position; after an hour passed, Rice departed without waiting for his car; he was informed later that his car was ready, but he did not return that day to pick it up; that night the service center was broken into, Rice’s car keys were obtained from inside the premises, and only his car, which was parked outside, was stolen; a switch on the alarm subsequently was found to have been moved so that the phone-alarm system was deactivated; Rice’s vehicle was found the next day in Alabama, but it was stolen again a week or two weeks later and never recovered.

Rice and Townsend (the independent contractor working for Rice) both testified and denied any complicity in the break-in of Rice’s business. Rice in essence asserted that his inability to respond quicker to the demands for information was predicated in large measure on the seizure of his office computer and paperwork by ITT.

After Rice filed suit, State Farm denied Rice’s claim on the basis that “no burglary actually ever occurred and that Mr. Rice had concealed and misrepresented material facts to [State'Farm] in the course of [the insurance company’s] investigation.” From the inception of the claim, the evidence was in conflict whether a break-in and burglary occurred as reported by Rice, and whether Rice concealed or misrepresented material facts to State Farm.

Appellant’s reliance on Gary v. State, 262 Ga. 573 (422 SE2d 426) is misplaced. Gary is distinguishable and not controlling as to our disposition of this error as enumerated.

The trial court granted partial directed verdict to State Farm on the issue of bad faith and attorney fees relying on Massachusetts Bay Ins. Co. v. Hall, 196 Ga. App. 349 (395 SE2d 851). “ ‘To support a cause of action under OCGA § 33-4-6, the insured bears the burden of proving that the refusal to pay the claim was made in bad faith. (Cits.) “A defen(s)e going far enough to show reasonable and probable cause for making it, would vindicate the good faith of the company as effectually as would a complete defense to the action.” (Cits.) “Penalties for bad faith [and attorney fees] are not authorized where the insurance company has any reasonable ground to contest the claim and where there is a disputed question of fact.” (Cit.)’ ” Id. at 355 (3). This type of directed verdict case is somewhat of an anomaly. Normally the standard for directed verdict and judgment n.o.v. are the same: “[w]here there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” Pendley v. Pendley, 251 Ga. 30 (302 SE2d 554). However, it is the very fact that certain factual issues regarding the merits of a claim are in genuine conflict that causes there to be no conflict, as a matter of law, whether an insurance company had reasonable grounds to contest a particular claim. In reaching this determination a court should carefully scrutinize any claim of a contest in facts to preclude the reliance by an insurance company on fanciful allegations of factual conflict to delay or avoid legitimate claims payment. Carefully scrutinizing the evidence of record, we find that, as a matter of law, State Farm had reasonable grounds to contest Rice’s claim. Thus, the evidence demands a verdict, under the precedent of Massachusetts Bay, supra, that State Farm could not be held liable, under OCGA § 33-4-6, either for the imposition of bad faith penalties or for attorney fees. Accordingly, the trial court did not err in granting partial summary judgment to State Farm as to these matters. Id.

2. Appellant asserts the trial court erred by failing to enter judgment in favor of appellant for that portion of the verdict which was owed to ITT as loss payee under the terms of the policy in question at the time of the loss.

ITT is not a party in this suit. Appellant’s assertion that the ITT settlement and release agreement included an assignment to him of the rights of ITT against State Farm is without merit. The document is clear and unambiguous, and does not contain any assignment of rights to appellant. Where, as here, the terms of a contract are clear, unambiguous, and capable of but one reasonable interpretation, the court will look to the contract alone to find the intent of the parties; in such instances, no construction is necessary or even permissible. Howell Mill/Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169, 173 (3) (390 SE2d 257); Stern’s Gallery &c. v. Corporate Property &c., 176 Ga. App. 586, 593 (337 SE2d 29). Moreover, the insurance policy provides that an assignment of interest thereunder would not bind State Farm until its consent thereto is endorsed on the policy; the policy contains no such endorsement.

The trial court concluded that appellant’s insurable interest in the missing inventory was limited to the difference between ITT’s insurable interest as loss payee and the market value of the property at the time it was stolen. The court further concluded that appellant could not assert the rights of ITT in the absence of a valid assignment of those rights to appellant.

The record establishes that ITT relinquished its right to pursue its claims for the indebtedness against appellant without relinquishing its security interest in the missing property simply by releasing appellant from certain liability, including liability for any obligation to pay the amount due and owing ITT, at the time of the release, under the floor-plan financing agreement. The issue then becomes whether appellant had an insurable interest in the allegedly missing inventory, which would authorize his recovery of an amount equal to ITT’s insurable interest as loss payee under the policy, in addition to appellant’s actual loss, when ITT had not assigned to appellant its rights as loss payee.

This issue presents a case of first impression for this court. In this case, the policy contained two loss payable endorsements naming as loss payee ITT and Curtis Mathes Corporation, respectively. These endorsements expressly provided that a “loss, if any, under this policy shall be payable to the above named loss payee as lender, mortgagee, or trustee, as interest may appear.” (ITT’s interest at time of theft was $25,184.11.) Although not directly in point, the case of Simmons v. American Security Ins. Co., 107 Ga. App. 364 (130 SE2d 351) is enlightening. In Simmons, where, by the terms of the motor vehicle insurance contract, the loss payable was to the named insured and a named mortgage loan company “ ‘as interest may appear,’ ” this court held that an “insured may not, over timely special demurrer, sue in his own name to recover the [entire] loss to the exclusion of the mortgagee.” Id. at 364-365. Likewise informative is Georgia Cas. &c. Co. v. Pincus, 89 Ga. App. 836 (1) (81 SE2d 527) wherein it was held: “The policy by its very terms is made payable to two legal entities, the insured and the named bank, as interest may appear. The defendant insurer would not be released, under the terms of the policy, by a payment to one from his obligation to the other. The contract of insurance is simply an obligation to the insured and the named bank as interest may appear; and, until that is ascertained, the defendant would not be acquitted if he paid the insured the total liability limited in the policy. Nor would a judgment ascertaining the amount due the insured be a bar upon the bank, unless it is made a party with an opportunity to contest the amount of its interest.”

As above determined, ITT’s interest as loss payee under the policy was not extinguished by its settlement agreement with and release of appellant, nor did it thereby assign its interest as loss payee to appellant. We are satisfied that the right of an insured to insurance proceeds, claimed pursuant to an insurance contract containing a loss payee endorsement “as interest may appear,” is determined at the time of loss and to the extent of the insured’s established actual loss. Cf. Ga. Farm &c. Co. v. Brewer, 202 Ga. App. 127, 128 (413 SE2d 770). Consistent with these principles, the trial court properly protected the loss payee’s legal interest by reducing the jury verdict to the extent of ITT’s established interest of $25,184.11. Moreover, the trial court’s entry of judgment was consistent with the general legal policy in this state prohibiting windfall and double recovery. Cf. OCGA § 9-2-4; Ga. Farm, supra at 129 (once satisfaction is received, no entitlement exists to additional recovery by mortgagee).

Appellant has cited, in addition to certain Georgia precedent, certain decisions from courts of other states. The decisions of other state courts, like the opinions of legal scholars, constitute only secondary authority before this court; these decisions are mere opinions, which are not binding upon us, and will be followed only in the event this court considers them sound and compatible with the orderly and fair development of the law of this state. See Thompson v. Eastern Air Lines, 200 Ga. 216, 222 (39 SE2d 225). Moreover for reasons above discussed, we find the position advanced by appellee more persuasive in arriving at our disposition of this matter.

3. Appellant, relying upon the statutory provisions of OCGA § 7-4-15, asserts the trial court erred by failing to include prejudgment interest in its judgment.

OCGA § 7-4-15 pertinently provides: “All liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them; if payable on demand, they shall bear interest from the time of the demand.”

In support of this enumeration, appellant argues that the damages in issue became liquidated when appellant made his demand for payment upon submitting his claim by letter of May 18, 1989. This letter pertinently states: “This letter represents a formal demand for payment on the above referenced claim [Claim No. 11-G009-464]. [Appellant] had completed and mailed to your office the appropriate ‘Sworn Statement in Proof of Loss’ regarding the loss by theft which occurred in September 1988 and has yet to receive payment according to the terms of the policy.” However, the “Sworn Statement in Proof of Loss,” pertaining to Claim No. 11-G009-464, reflects that “the interest of the insured in the described property was -0- Unk,” and that the “insured hereby claims of this company . . . under this policy the sum of $30,500.00 approx.” It is clear that contrary to appellant’s contention, the demand letter of May 18, 1989, on its face did not demand liquidated damages in a fixed or certain amount. Rather, the “Sworn Statement in Proof of Loss” incorporated by reference into the demand letter made claim merely to an approximate amount. “A sum is liquidated when it is certain how much is due and when it is due.” Turner Constr. Co. v. Electrical Distrib., 202 Ga. App. 726, 727 (3) (415 SE2d 325). The sum demanded in the letter relied upon by appellant in its brief was not liquidated within the meaning of OCGA § 7-4-15. Appellant cites this court to no other document which contains a demand for a fixed or certain sum; it is not the function of an appellate court to cull the record in search of error on behalf of a party. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (8) (389 SE2d 251). Moreover, as appellant does not cite any authority or make any argument in its appellate brief that a liquidated demand was made, under OCGA § 7-4-15, in any manner other than by letter of May 18, 1992, the issue of whether the demand was made in any other manner has been abandoned. Court of Appeals Rule 15 (c) (2).

Additionally, the record establishes that a bona fide dispute existed as to the amount, if any, of the principal indebtedness. Although appellant asserted a missing property loss of $30,500, the jury rendered a verdict in the amount of only $26,592.70. The trial court properly reduced that amount on judgment to $1,408.59 in favor of appellant. An amount is unliquidated where, as here, there is a bona fide dispute as to principal indebtedness. Federal Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 769 (4) (417 SE2d 671). In this instance the amount of the claim was vigorously contested throughout trial, and the amount of claim due and payable remained unliquidated until judgment was entered properly subtracting a monetary amount equal to ITT’s interest from the verdict. Compare Enfinger v. Intl. Indem. Co., 257 Ga. 385 (359 SE2d 884) with Intl. Indem. Co. v. Terrell, 178 Ga. App. 570 (344 SE2d 239); cf. Restina v. Crawford, 205 Ga. App. 887 (424 SE2d 79) (interest awarded per Unliquidated Damage Interest Act, OCGA § 51-12-14); Home Ins. Co. v. North River Ins. Co., 192 Ga. App. 551, 557 (4) (385 SE2d 736) (where amount of damages can only be established by the trier of fact, the damage award is unliquidated).

Decided March 9, 1993 —

Reconsideration denied March 24, 1993

Rafe Banks III, for appellant.

Greer, Klosik & Daugherty, Frank J. Klosik, Jr., Donald J. Sharp, for appellee.

The issue of prejudgment interest, pursuant to OCGA § 13-6-13, where contract damages are unliquidated is not before this court for adjudication in this appeal.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Cooper, Judge.

text:
    A92A2355.
    SIGHTLER et al. v. TRANSUS, INC. et al.
    (430 SE2d 81)
   Cooper, Judge.

In this tort action, appellants challenge the trial court’s grant of partial summary judgment to appellees on the issue of punitive damages.

Appellants Mr. and Mrs. Sightler were damaged when Payne ran the tractor-trailer truck he was driving into Mr. Sightler’s service station. Appellants sued Payne and appellees — Payne’s employer, the employer’s insurer, and the owners of the truck who leased it to the employer. Relying on the rule that employers or principals may be vicariously liable for punitive damages arising from the misconduct of their employees or agents in Georgia, see Gasway v. Atlanta & W. Point R. Co., 58 Ga. 216 (2) (1877); American Fidelity &c. Co. v. Farmer, 77 Ga. App. 166 (3) (48 SE2d 122) (1948), appellants sought punitive as well as compensatory damages from all defendants based on Payne’s alleged recklessness. However, Payne died before the case reached trial, and the estate of a deceased tortfeasor may not be liable for punitive damages. Morris v. Duncan, 126 Ga. 467, 470 (1) (54 SE 1045) (1906). Appellees then moved to strike appellants’ prayer for punitive damages, arguing that because appellees’ potential liability for punitive damages is derivative of Payne’s liability and Payne’s estate cannot be liable for punitive damages, appellees also could not be liable for punitive damages. The trial court treated the motion as one for partial summary judgment and granted it.

Decided March 9, 1993 —

Reconsideration denied March 24, 1993

Reynolds & McArthur, Charles M. Cork III, for appellants.

Federal, Goetz & Cronkright, Charles M. Goetz, Jr., Julie A. Goodwin, for appellees.

In their sole enumeration of error, appellants contend the trial court erred in granting summary judgment to appellees on the issue of punitive damages. We agree. Although appellees’ syllogism appears logical at first blush, it misconstrues the language of Gasway and Farmer. “In this State, the master is liable for exemplary damages in case the wrongful acts are committed by the agent or servant in the course of or in connection with his duties or employment, provided such wrongful acts are sufficient to authorize a recovery for exemplary damages. ... ‘If the tortious acts of the servant or agent be such, when committed in the business of the company and within the scope of the servant’s employment, as would have subjected the servant to exemplary or vindictive damages had he been sued as principal, the company will be responsible for like damages when it is sued for such misconduct of its servant in its business.’ [Gasway, supra.]” (Emphasis supplied.) Farmer, supra at 178. This language does not require that the agent actually be liable for punitive damages, as long as the nature of his misconduct would be sufficient to support a recovery of punitive damages. The immunity from punitive damages of Payne’s estate, like other immunities agents may enjoy, is a personal defense which depends on something other than the nature of agent’s misconduct and does not insulate the principal from liability for that misconduct. Cf. Bradley v. Tenneco Oil Co., 146 Ga. App. 161 (2) (245 SE2d 862) (1978). Appellees’ citation of dicta in Willis v. Hill, 116 Ga. App. 848, 868 (159 SE2d 145) (1967), rev’d on other grounds, 224 Ga. 263 (161 SE2d 281) (1968), for the proposition that punitive damages cannot be assessed against any joint defendants unless all are liable does not convince us otherwise. We have already held that this dicta in Willis, even if binding, would not apply to bar a verdict against all defendants for compensatory damages and against all but one of the defendants for punitive damages where “[t]he jury returned a verdict against all defendants as to whom it was empowered to do so.” See Crow v. Evans, 183 Ga. App. 581, 582 (1) (359 SE2d 446) (1987). Accordingly, the trial court erred in granting summary judgment to appellees on the issue of punitive damages.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.


author: Beasley, Judge.

text:
    A93A0135.
    LANGSTON v. THE STATE.
    (430 SE2d 365)
   Beasley, Judge.

Langston was convicted of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b), and his motion for new trial was denied.

He contends that the evidence at trial was circumstantial, and that the trial court’s refusal to give his requested charge on circumstantial evidence was therefore error.

The evidence at trial in support of the conviction showed that at approximately 9:45 p.m., a police detective patrolling a known drug area in Augusta observed Langston leaning into the driver’s window of a car stopped in the roadway. The detective testified that when the police car pulled up behind the stopped car the driver sped away and Langston stepped back to the curb, dropping both hands to his sides. He noticed that Langston had paper money clutched in his left hand, and that a small plastic bag containing a piece of plastic was on the ground about two inches from Langston’s foot. Langston was the only person on that side of the street. The paper money in Langston’s hand was a $20 bill, and the plastic in the bag contained eight pieces of what later proved to be crack cocaine. Langston also had about $90 in a pocket.

Langston, his own sole witness, testified that he was just teasing the young lady in the car, whom he knew, with the $20 bill, that he had no cocaine, and that the cocaine retrieved was more than a car length away from where he was standing.

No direct evidence was presented that the cocaine had been in Langston’s possession or that he intended to distribute it. Rather, these elements were proved circumstantially, by inferences from the evidence presented.

Appellant requested the trial court to charge the jury that “[wjhere all the facts and circumstances of the case, and all reasonable deductions therefrom, present two equal theories, one of guilt and the other of innocence, then the jury must acquit the accused.”

This charge does not accurately state the principle addressed. First, it relates to the weight of the evidence and therefore is not an accurate statement of the “two theories” principle. That principle does not require that the two “theories” be “equal.” See, e.g., Davis v. State, 13 Ga. App. 142 (1), 143 (78 SE 866) (1913). This inaccuracy alone would be reason enough for the trial court’s refusal to instruct the jury to use it. Daniels v. State, 184 Ga. App. 689, 690 (1) (362 SE2d 775) (1987).

Second, even an accurate version of the charge “has been criticized from the date it was written.” Booker v. State, 156 Ga. App. 40, 42 (4) (274 SE2d 84) (1980), rev’d on other grounds 247 Ga. 74 (274 SE2d 334) (1981). Although Booker states that the charge is taken from Davis, the court in Davis describes the evidentiary yardstick for circumstantial evidence as “well settled.” In Davis, there was only circumstantial evidence that defendant sold the liquor. Allen v. State, 13 Ga. App. 657, 658 (79 SE 769) (1913), decided only three months after Davis, cites Riley v. State, 1 Ga. App. 651 (57 SE 1031) (1907), for the same principle. The holding in Riley, however, is that when the evidence of guilt is entirely circumstantial, the jury must be charged on the applicable statute, section 984 of the Penal Code of 1895. Id. at 655. Section 984 is the predecessor statute to, and contains the exact wording as, the present OCGA § 24-4-6: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” This is a codification of even earlier caselaw. Hamilton v. State, 96 Ga. 301 (22 SE 528) (1895), states: “[I]n a case where the State depended for conviction upon circumstantial evidence alone, it [is] the duty of the judge, whether so requested or not, to instruct the jury, in substance, that to authorize a verdict of guilty the evidence must connect the accused with the perpetration of the alleged offense, and must not only be entirely consistent with his guilt, but inconsistent with every other reasonable hypothesis. The failure to give some such instruction, in a close and doubtful case . . . , will entitle the accused to a new trial. The law upon this subject is very concisely and aptly stated in the 12 Am. & Eng. Enc. of Law, p. 879. . . .” Id. at 302.

Subsequent cases took, out of context, language used in Riley to support and explain its holding, including the statement that “[circumstantial evidence is worth nothing in a criminal case, if the circumstances are reasonably consistent with the hypothesis of innocence, as well as the hypothesis of guilt.” Supra at 655. Such cases paraphrased that language, which was not intended as a jury charge, and created a poor substitute for the clear principle embodied in the statute. See Carr v. State, 119 Ga. App. 540, 544 (167 SE2d 707) (1969). In addition to being cited for its holding that the statute must be charged, Riley also began appearing regularly as supporting authority for the “two theories” explicatory language. See, e.g., Middleton v. State, 7 Ga. App. 1, 2-3 (1) (66 SE 22) (1909); Thomas v. State, 8 Ga. App. 95, 96 (68 SE 522) (1910). Eventually, the “two theories” description was submitted as a proper charge on the law of circumstantial evidence, in lieu of a charge on the statute itself. Although criticized often and severely, its use in cases where the evidence is entirely circumstantial has been authorized by the Supreme Court. General v. State, 256 Ga. 393, 394 (3) (349 SE2d 701) (1986). It also appears in the Suggested Pattern Jury Instructions, Criminal Cases (2d ed.), p. 18, item B. In the latter it even contains the quantitative word “equal.”

Instructions to the jury, particularly those explaining difficult concepts, are to be “the lamp ... to guide [the jury’s] feet in journeying through the testimony in search of a legal verdict.” Riley, supra at 655. “[T]he charge of the court must contain such clear, apt, and definite exposition of the specific principles of law applicable to the case as will enable the jury to deal with the real issue in the case and properly to decide it.” Glaze v. State, 2 Ga. App. 704, 709 (58 SE 1126) (1907). Instructions must be given in straightforward, lay language, in as easily comprehensible terms as possible. Otherwise there is created the danger that the jury’s deliberations will be derailed from a legally correct track.

The statutory language of OCGA § 24-4-6, when given in charge, plainly directs the jury to measure the circumstantial evidence in support of guilt by this yardstick. The language in the “two theories” charge, in contrast, is not limited to circumstantial evidence but appears to be directed to all the evidence on the elements, both direct and circumstantial, including defendant’s. It is thus misleading and confusing, and it is certainly not a clear statement of the crucial principle involved.

This problem is now exacerbated because of the Supreme Court’s recent holding in Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991), that a charge on the law of circumstantial evidence must be given on request even where there is also direct evidence as to the elements and it has not been impeached. The likelihood that this charge may confuse or mislead the jury is increased manifold. Id. at 699-700. If a “two-theories” charge is given in a case where there is unimpeached direct as well as circumstantial evidence, a risk is created that the jury may apply this standard as well to the direct evidence. It only applies when all of the evidence of guilt is circumstantial or when the jury is authorized to discredit the direct evidence and must base its decision on circumstantial evidence of guilt. Where the evidence of the elements is direct, the principle in OCGA § 24-4-6 has no application. “It is not then a question of a comparison of the reasonableness of hypotheses, but the question is rather whether the direct testimony is credible.” Middleton v. State, supra at 1, 3 (1) (66 SE 22) (1909).

Here, the evidence of the elements of possession and intent was wholly circumstantial. The requested charge was not accurate. A charge on OCGA § 24-4-6 would have been appropriate and proper. A charge defining and describing direct and circumstantial evidence was given as were cautions on such examples of circumstantial evidence as presence and association. The trial court also instructed the jury that the comparative weight to be given direct and circumstantial evidence on a given issue was always theirs to decide. But the charge on OCGA § 24-4-6 was neither requested nor given sua sponte. Undoubtedly, it would have been “[t]he better practice, if the principle of circumstantial evidence is to be charged at all, ... to charge both the pattern charge book’s definition of circumstantial evidence as well as the cautionary language of OCGA § 24-4-6. [Cit.]” Terrell v. State, 258 Ga. 722, 724, n. 2 (373 SE2d 751) (1988). See Suggested Pattern Jury Instructions, Vol. II, Criminal Cases (2d ed.), pp. 11-12, item J2.

Decided March 9, 1993 —

Reconsideration denied March 24, 1993.

Richard O. Ward, for appellant.

Michael C. Eubanks, District Attorney, Daniel W. Hamilton, Richard E. Thomas, Assistant District Attorneys, for appellee.

Nevertheless, this was not “a close or doubtful” case. Germany v. State, 235 Ga. 836, 840-844 (2) (221 SE2d 817) (1976). As to the circumstantial evidence, that is, discounting defendant’s description of the distance between himself and the cocaine and his denial, and accepting instead the officer’s testimony, as the jury was authorized to do, it is not a reasonable hypothesis that the cocaine found two inches from defendant’s foot had not been in his possession, was unbeknownst to him, and was not intended by him to be distributed. No reasonable hypothesis of innocence as to these circumstances was offered, and none appears. The trial court charged the jury fully and fairly on the presumption of innocence, reasonable doubt, and the State’s burden to prove every material allegation of the indictment and every essential element of the crime beyond a reasonable doubt, as well as on circumstantial evidence as referenced above. Thus, the failure to charge on OCGA § 24-4-6 was not reversible error. Germany, supra. Accord Hawes v. State, 240 Ga. 327, 330 (3) (240 SE2d 833) (1977); Stoker v. State, 177 Ga. App. 94, 96 (338 SE2d 525) (1985). See also Tubman v. State, 185 Ga. App. 731, 733-734 (2) (365 SE2d 879) (1988) (Beasley, J., concurring specially).

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A93A0353.
    JABALEY et al. v. JABALEY.
    (430 SE2d 119)
   Birdsong, Presiding Judge.

This appeal is taken by Richard Paul Jabaley and his wife from the order of the superior court vacating and re-issuing, without modification, its order dismissing as untimely appellants’ appeal de novo from the orders of the probate court. The appeal de novo to the superior court had been taken from the rulings of the probate court granting appellee Yolanda Jabaley a year’s support award, and for denying appellants’ subsequent motion for new trial or in the alternative motion to amend judgment. The superior court vacated and re-issued its original order (compare Cambron v. Canal Ins. Co., 246 Ga. 147 (269 SE2d 426)) apparently in view of appellants’ claim that he had not been notified of the superior court’s original order in accordance with OCGA § 15-6-21 (c). Held:

1. Appellants assert the trial court erred in ruling they waived their claims by admitting that the judgment of the probate judge, dated March 4, 1992, had been “entered,” because such ruling was not supported by any facts or evidence of record; and that the trial court erred when it ruled appellants had waived their claims as to the entry or non-entry of the probate court judgment on March 4, 1992, as no objection in the pleadings of appellee or in the evidence suggests that such issue was waived. Appellants’ first and second enumerations of error are without merit.

Appellants made an admission in judicio, in their motion for new trial or in the alternative motion to amend judgment, of the fact that the probate court “entered a judgment styled ‘Final Order’ dated the 4th day of March, 1992.” (Emphasis supplied.) Bannister v. State, 202 Ga. App. 762 (1b) (415 SE2d 912); Time Ins. Co. v. Lamar, 195 Ga. App. 452 (393 SE2d 734); see OCGA § 24-3-30. Contrary to appellants’ contention, this admission in judicio does not constitute an opinion as to the legal effect of an instrument, but expresses the fact that the order was entered on the date specified; appellants’ reliance on Clift &c., Inc. v. Mincey Mfg. Co., 41 Ga. App. 38 (152 SE 136) and its progeny is misplaced as those cases are distinguishable. Such an admission is conclusive; “ [i]t is binding upon the party and estops the party from denying the admission or introducing any evidence to controvert such admission, even if the admission is not true.” Green, Ga. Law of Evid., Admissions, § 238, p. 422. Thus, a judicial admission in effect is “ ‘a waiver relieving the opposing party from the need of any evidence,’ ” as to that matter. Piedmont Aviation v. Washington, 181 Ga. App. 730, 731 (2) (353 SE2d 847). Appellants cannot claim as error that they were not informed of the effect of their admission and, thus, prevented from requesting on formal motion to withdraw or amend it. Failure to comprehend the legal effect of making an admission provides no excuse for the maker; “[i]gnorance of the law excuses no one.” OCGA § 1-3-6; see also Bragg v. Bragg, 225 Ga. 494, 496 (170 SE2d 29). Burger King Corp. v. Garrick, 149 Ga. App. 186 (253 SE2d 852) relied upon by appellants is distinguishable and not controlling regarding the conclusive effect of admissions in judicio. To the contrary, “[i]t is presumed that the opposite party has relied upon the admission in judicio to provide or to establish the fact or facts; that he does not have proof readily at hand to supply evidence in place of the admission; and that he must have a reasonable time to supply the missing evidence in the proof of his case caused by the withdrawal [if court approved] of the admission in judicio.” Green, supra. Thus, the superior court was correct in its conclusion of law that appellants could not contend that the final order was not entered on March 4, 1992.

Further, the superior court’s finding of fact that “the evidence presented by the caveators also established that the order dated March 4, 1992, was entered on the same date,” is supported by some independent evidence of record in the form of testimony of the clerk of the probate court that she entered the order by entering the notation “granted” in the docket book and an extract of a “granted” entry appearing in the probate court docket. Appellants have established no legitimate basis for this court to reject this finding of fact; moreover, the testimony of the clerk establishes the order was entered in substantial compliance with OCGA §§ 9-11-58 (b) and 15-9-37.

2. Appellants’ third original enumeration of error refers to an alleged order, dated June 23, 1992; however, they provide no citations of authority or argument in their briefs concerning such an order. Accordingly, any issue regarding the filing of such order and its entry by the clerk of the probate court has been abandoned. Court of Appeals Rule 15 (c) (2). Moreover, appellants’ argument pertaining to some other order, under this particular enumeration, cannot be considered as one cannot expand the scope of review or supply additional issues through a process of switching, shifting, and mending your hold; statements in appellate briefs cannot expand the scope of review to include issues not reasonably contained within the enumeration under consideration. City of College Park v. Ga. Power Co., 188 Ga. App. 223 (372 SE2d 493).

Subsequently, appellants filed a purported amendment of enumeration of errors after the extension of time granted by this court for the filing of enumerations of error had passed. It is well-established that an enumeration of error may not be amended after the original filing time has expired. Brown v. State, 198 Ga. App. 590 (4) (402 SE2d 341), and cases cited therein. However, to the limited extent appellants intended to assert and argue that the order of March 4, 1992, was not duly entered, see Division 1 above.

3. Appellants assert the trial court erred by dismissing the “de novo” appeal from the probate court on the grounds it was untimely. In view of our holding in Division 1 above, the appeal to the superior court was filed more than 30 days after the entry of the probate court’s final order, but less than 30 days from the filing and entry of the order denying appellant’s motion for new trial or, in the alternative, motion to amend judgment. Accordingly, the notice of appeal would be untimely and the appeal would have to be dismissed (see generally OCGA §§ 5-5-1 (a) and 5-3-20 (a); King v. King, 137 Ga. App. 251 (223 SE2d 752)), unless the time for the notice of appeal commenced to run from the date of entry in the probate court of the order denying appellant’s motion for new trial or, in the alternative, motion to amend judgment.

(a) In 1954, the Supreme Court in Byrd v. Riggs, 210 Ga. 473 (3) (80 SE2d 785), construed then Code Ann. § 70-101, and held that the court of ordinary lacked jurisdiction to entertain a motion or extraordinary motion for new trial, as only superior courts and city courts can grant new trials. In 1984, this court construed the then current provisions of OCGA § 5-5-1 and followed the holding in Byrd, supra, and concluded that whether the motion was designated a motion to set aside or a motion for new trial, the probate court lacked jurisdiction to entertain it. In re Lott, 171 Ga. App. 25 (318 SE2d 688). It was further held that “[o]n appeal, the jurisdiction of the superior court was limited to that of the probate court.” In re Lott, supra at 26. However, effective July 1, 1986 (Ga. L. 1986, p. 982, § 4), OCGA § 5-5-1 (b) was modified by adding subsection (b) thereto, as follows: “(b) Probate. courts shall have power to correct errors and grant new trials in civil cases provided for by Article 6 of Chapter 9 of Title 15 under such rules and procedures as . apply to the superior courts.” The statutory provisions of Article 6 currently include OCGA §§ 15-9-120 through 15-9-127.

Pretermitting whether the case at bar constituted a “civil case” within the meaning of OCGA § 15-9-120 (1) is that the statutory term, “probate court,” is strictly limited by definition in OCGA § 15-9-120 (2) to include only a probate court of a county having a population of more than 100,000 persons according to the United States decennial census of 1980 or any future such census, and in which the judge thereof has been admitted to the practice of law for at least seven years. Troup County does not have a population of more than 100,000 persons according to either the 1980 or 1990 decennial census. OCGA Volume 42, p. 348 (1992 cumulative supp.). Accordingly, the Troup County probate court lacked authority to entertain a motion for new trial, and any such motion therefore being without legal force and effect before the Troup County probate court, would not serve to extend the time for filing a notice of appeal under either OCGA § 5-6-38 (a) or § 5-3-20. Byrd, supra; In re Lott, supra. “Where a motion for new trial is not a proper vehicle for review of a trial court’s action, the motion has no validity and will not extend the time for filing the notice of appeal.” Pillow v. Seymour, 255 Ga. 683, 684 (341 SE2d 447), citing, inter alia, Shine v. Sportservice Corp., 140 Ga. App. 355 (231 SE2d 130) (motion for new trial not proper vehicle to obtain reexamination of grant of summary judgment and did not extend filing date of notice of appeal). Reid v. Reid, 201 Ga. App. 530 (411 SE2d 754) (an appeal arising from a grant of summary judgment) is distinguishable as Richmond County has a census population in excess of 100,000 within the meaning of OCGA § 5-5-1 (b).

(b) Appellants, however, enumerate that the trial court erred by ruling against appellants and in failing to address their contentions that the probate court had authority to entertain and rule upon a timely motion to amend judgment, that is to amend its own order of March 4, 1992. The motion for new trial and alternative motion to amend judgment were entered on March 6, 1992 (compare OCGA § 15-9-83).

(1) Every court has the general power to amend and control its processes and orders so as to make them conformable to law and justice; to amend its own records so as to make them conform to the truth; and to correct its own proceedings before final judgment. OCGA § 15-1-3 (6) and (7). A probate court is included within the term “[e]very court,” and thus is vested with the general powers of OCGA § 15-1-3, unless otherwise limited by law.

(2) For reasons stated in Division 3 (a) above, denial of a motion for new trial would not extend the date for filing the notice of appeal. The question then becomes whether the alternative motion was denied, and whether such a denial would serve to extend the filing date.

(3) The order of the probate court reflects on its face that “the motion for new trial or in the alternative motion to amend judgment is denied.” This order establishes that both motions were denied on March 27, 1992, by the probate court. The order of the trial court, dated June 23, 1992, makes express reference to the caveators’ pleading styled “ ‘motion for new trial or in the alternative motion to amend judgment.’ ” Inherent within the trial court’s ruling that the notice of appeal was untimely since OCGA § 5-3-20 provides “[a]ppeals to the superior court shall be filed within 30 days of the date the judgment, order or decision complained of was entered,” is a determination that neither a motion for new trial nor a motion to amend judgment would extend the filing date.

(4) Appellants assert, inter alia, that, pursuant to the provisions of OCGA §§ 5-3-2 (a) and 5-3-20 (a) their motion in the alternative to amend judgment is an appealable decision, and that accordingly the notice of appeal was timely filed.

A motion to amend judgment does not inherently include vacation or setting aside of the entire judgment at issue; rather, it constitutes a motion for some form of modification thereof. Cases pertaining to the vacation of judgment for fraud or other illegality are distinguishable and not controlling.

Notwithstanding the broad language of OCGA § 5-3-2 pertaining to the appealability of “any decision” from the probate court (except an order appointing a temporary administrator), this court has concluded that “[t]his [statutory provision] has been interpreted to apply only to final judgments rendered by the probate court.” Sears v. State, 196 Ga. App. 207 (396 SE2d 1), citing Harnesberger v. Davis, 86 Ga. App. 41, 46 (1) (70 SE2d 615). Examination of the motion to amend judgment here at issue establishes that it is in substance and function a motion for reconsideration by the probate court of that portion of its final judgment purporting to award year’s support equivalent to the schedule of property set forth in applicant’s petition, and that upon such reconsideration to correct á portion of the year’s support award by modifying it “to reflect the amounts claimed as proven in the evidence.” An appeal from a motion to amend judgment of a probate court is not a final judgment (see Sears, supra) and thus, is not an appealable decision within the meaning of OCGA § 5-3-2 (a). Cf. LeCraw v. L. P. D., Inc., 114 Ga. App. 281 (150 SE2d 927). Nor will such a motion extend the date for filing a notice of appeal under the plain and literal language of OCGA § 5-3-20 (a). The filing requirement of OCGA § 5-3-20 (a) is jurisdictional in nature. Rowell v. Parker, 192 Ga. App. 215 (384 SE2d 396). The trial court’s judgment was correct and a judgment or decision right for any reason will be affirmed. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673). OCGA § 5-3-2 contemplates an orderly progressive appellate process, and not a delaying, costly, and cumbersome shuttling of cases back and forth between two courts. Sears, supra at 208. Our holding supports the continuation of the former. Moreover, as above concluded, appellants could not directly obtain an extension of the notice of appeal filing date by means of a motion for new trial. The argument posed by appellants that the filing of an alternative motion to amend judgment would authorize such an extension merely is an indirect attempt to obtain that which is directly prohibited by the current state of the law. One cannot do indirectly that which the law does not allow to be done directly. See Kingsmill Village &c. Assn. v. Homebanc &c. Bank, 204 Ga. App. 900, 902 (2a) (420 SE2d 771).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.

Decided March 12, 1993 —

Reconsideration denied March 24, 1993

Louis Levenson, for appellants.

Wyatt, Solomon & Kendinger, Jackie M. Kendinger, for appellee.


author: Pope, Chief Judge.

text:
    A92A1711.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. SILLS et al.
    (430 SE2d 32)
    Decided February 24, 1993 —
    Reconsideration denied March 25, 1993

      Young, Clyatt, Turner, Thagard & Hoffman, F. Thomas Young, Sherry S. Harrell, for appellant.
   Pope, Chief Judge.

On September 9, 1990, plaintiff Barbara Sills’ husband was struck and killed by a truck. On June 21, 1991, plaintiff filed suit against defendant State Farm Mutual Automobile Insurance Company seeking to recover, inter alia, attorney fees, punitive damages and a 25 percent penalty under former OCGA § 33-34-6. On February 4, 1992, State Farm filed a partial motion for summary judgment contending that the October 1, 1991 repeal of the Georgia Motor Vehicle Accident Reparations Act (No-Fault Act), of which OCGA § 33-34-6 was a part, precluded plaintiff’s recovery of penalties, punitive damages and attorney fees under that section. The trial court denied State Farm’s motion, but granted a certificate of immediate review. This appeal follows our grant of State Farm’s application for interlocutory appeal.

“[T]his court has recently held that, in the absence of a contractual term in the policy providing for bad faith damages, there can be no post-repeal recovery of penalties, attorney fees, or punitive damages for an insurer’s bad faith failure to pay under the repealed No-Fault Act. See Terry v. State Farm &c. Ins. Co., 205 Ga. App. 224 (422 SE2d 212) (1992). Although the repeal is not retroactive with respect to coverage, it is retroactive with respect to available remedies. Id.” Green v. State Farm Ins. Cos., 206 Ga. App. 478, 481 (2) (426 SE2d 3) (1992). Consequently, the trial court’s denial of State Farm’s motion for partial summary judgment must be reversed. See also Khosravi v. Aetna Cas. &c. Co., 206 Ga. App. 481 (425 SE2d 905) (1992).

Judgment reversed.

Corley, P. J., and Johnson, J., concur.

Berrien L. Sutton, for appellees.


text:
    A92A2057.
    A92A2058.
    A92A2059.
    A92A2060.
    LEGUM et al. v. CROUCH et al. DESAI v. CROUCH et al. GWINNETT COUNTY HOSPITAL AUTHORITY v. CROUCH et al. PARIKH v. CROUCH et al.
    (430 SE2d 360)
   Birdsong, Presiding Judge.

This is an interlocutory review of the order of the trial court denying various motions of appellant/defendants to dismiss the complaint, and motions for summary judgment, based upon appellee/ plaintiffs’ failure to comply with the affidavit requirements of OCGA § 9-11-9.1 (a).

On July 22, 1991, appellee Marie Crouch filed a complaint averring a wrongful death claim as the widow of the deceased husband and averring a medical malpractice claim as the administratrix of the deceased’s estate. It was averred, inter alia, that the various appellant doctors were negligent in failing to timely diagnose deceased’s lung cancer. Mr. Crouch died on March 6, 1991; on June 3, 1991, appellee was appointed as administratrix of Mr. Crouch’s estate; until that time the estate was without representation. The claims against appellant Gwinnett Medical Center (hospital authority) provided adequate CPA notice solely as to claims of liability based upon the doctrine of respondeat superior for the averred medical negligence (malpractice) of two radiologists. No expert affidavit was filed contemporaneously with this complaint; however, in the complaint, it was averred that the claims were within ten days of the applicable statute of limitation and, accordingly, appellees attempted to invoke therein the 45-day filing delay provisions of OCGA § 9-11-9.1 (b). Appellants filed motions to dismiss and/or motions for summary judgment asserting noncompliance with the affidavit requirements of OCGA § 9-11-9.1 (a). Appellees filed an amended complaint within the 45-day delay period by filing an expert’s affidavit with attached medical records. The trial court denied appellants’ motions to dismiss and motions for summary judgment. Held:

1. Appellant hospital authority asserts that because the claims averred against it are based solely on its liability under the doctrine of respondeat superior for acts of malpractice committed by two doctors performing duties as radiologists, therefore medical affidavits were required to be filed in support of these claims pursuant to OCGA § 9-11-9.1, notwithstanding the hospital authority is not a professional within the meaning of said statute. OCGA § 9-11-9.1 (a) pertinently provides that “[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert.” In Lamb v. Candler Gen. Hosp., 262 Ga. 70, 71 (1) (413 SE2d 720), it was held that where professional skill and judgment are not involved, an affidavit under OCGA § 9-11-9.1 is not necessary. In the case at bar it appears that all of the claims adequately averred against the hospital authority were grounded upon the authority’s liability for the acts and omissions of its agents and employees under the doctrine of respondeat superior. Moreover, these acts or omissions, as averred in the complaint, required the exercise of some form of medical skill and judgment on the part of the two agents or employees concerned who were, at that time, medical doctors. (Additionally, no claim based on simple negligence, which per se would not require a supporting affidavit, has been averred in the complaint against any of the appellants.)

In Gillis v. Goodgame, 262 Ga. 117, 118 (414 SE2d 197), it was concluded that “the legislature intended for the term ‘professional’ as used in OCGA § 9-11-9.1 to be defined by OCGA §§ 14-7-2 (2); 14-10-2 (2), and 43-1-24. . . . [Tjherefore . . . the affidavit requirements of § 9-11-9.1 apply only to those professions recognized under Georgia law in OCGA §§ 14-7-2 (2); 14-10-2 (2); and 43-1-24.” This holding was further clarified in Lamb, supra at 72 (2), which recognized that Gillis, supra, held that the affidavit requirements of § 9-11-9.1 apply only to those professions recognized under Georgia law in OCGA §§ 14-7-2 (2); 14-10-2 (2); and 43-1-24.

Thereafter, the Supreme Court concluded in Lamb, supra at 72, “[i]nsofar as [appellant’s] complaint alleges negligence against the hospital for supplying defective equipment for use in treating its patients, the case is not one against a ‘professional’ or involving ‘professional malpractice.’ Therefore, OCGA § 9-11-9.1 is inapplicable and no affidavit is required.” (Emphasis supplied.) The essence of this holding appears to be that an appropriate affidavit is required not only when a particular claim is against a “professional” but also when a particular claim is grounded upon “professional malpractice,” that is, an act or omission caused by a “professional” which constitutes malpractice. However, as the hospital authority is not classified as such a “professional,” the affidavit requirement does not apply automatically as to any claim asserted against it. Greene County Hosp. Auth. v. Turner, 205 Ga. App. 213 (421 SE2d 715) and Thornton v. Ware County Hosp. Auth., 205 Ga. App. 202 (421 SE2d 713). Rather, the affidavit requirement applies regarding tort claims filed against a hospital not only when averred liability is based upon the doctrine of respondeat superior but when it is further grounded upon the additional averment of acts or omissions requiring the exercise of professional skill and judgment by agents or employees who themselves are recognized as “professionals” under OCGA §§ 14-7-2 (2); 14-10-2 (2); or 43-1-24. Compare Thornton v. Ware County Hosp. Auth., supra, with Greene County Hosp. Auth. v. Turner, supra. See Lamb, supra at 72 (2).

Thus, to the extent that a complaint avers claims of hospital liability, based on the doctrine of respondeat superior, arising from acts or omissions constituting malpractice by doctors, registered professional nurses, or other “professionals,” as recognized by said statutes, an appropriate affidavit, as defined in Thornton, supra, at 203, is required under OCGA § 9-11-9.1. Greene County Hosp. Auth., supra. However, to the extent that a complaint avers claims based on the acts or omissions of agents or staff employees who are not “established” by the movant hospital as qualifying as professionals under Gillis, supra, no supporting affidavit would be required and those claims could not be dismissed or summary judgment granted for want of an affidavit. (Compare Greene County Hosp. Auth., supra at 214.) As, in this case, the authority’s liability under respondeat superior is based solely on averments of acts or omissions of medical malpractice by agents or employees thereof who are shown to be “professionals,” as above defined, an appropriate medical affidavit was required to be filed, in accordance with OCGA § 9-11-9.1, in support of the claims against the authority. Compare Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62 (424 SE2d 632). However, the question remains as to when the affidavit was required to be filed regarding the claims against appellants.

2. Pursuant to the provisions of OCGA § 9-3-71, the two-year statute of limitation for wrongful death cases emanating from medical malpractice, such as the wrongful death averments in this case, begins to run from the date of death, not from the negligent act or omission of the practitioner. See generally Hart v. Eldridge, 250 Ga. 526 (299 SE2d 560); Clark v. Singer, 250 Ga. 470 (298 SE2d 484). Thus, the statute of limitation as to all wrongful death claims averred in the complaint would not expire until March 6, 1993, and appellee could not invoke the 45-day grace period of OCGA § 9-11-9.1 (b) based on the averments of these claims on behalf of the deceased’s widow. Accordingly, we must next examine whether the 45-day grace period nevertheless could be invoked as to this case based on the medical malpractice claims averred on behalf of the estate (see generally OCGA § 9-11-9.1 (b)).

3. Assuming without deciding that the statute of limitation applicable to every medical malpractice claim averred on behalf of the estate normally would have expired within ten days of the filing of the complaint, the question remains whether in the case at bar the statute of limitation was tolled by operation of law by OCGA § 9-3-92 for a period of 89 days, so that in legal effect the complaint was filed more than ten days before the expiration of any applicable statute of limitation (OCGA § 9-3-73). If the statute of limitation was so tolled, appellees could not then avail themselves of the 45-day delay provision of OCGA § 9-11-9.1 (b).

OCGA § 9-3-92 pertinently provides that: “The time between the death of a person and the commencement of representation upon his estate . . . shall not be counted against his estate in calculating any limitation applicable to the bringing of an action, provided that such time shall not exceed five years.” “This court has generally held that, unless the context clearly indicates otherwise, the word ‘shall’ is to be read as a word of command.” Dept. of Medical Assistance v. Llewellyn, 197 Ga. App. 231 (1) (398 SE2d 256). The context of this statute is clear and unequivocal. By use of the word “shall,” the legislature intended to provide and did provide that the tolling calculation therein provided was mandatory in every instance where the statute was applicable; that is, tolling occurs by operation of law to the extent provided by the statute. Any other conclusion would lead to the absurd result that estates could sporadically invoke the tolling provisions for their exclusive benefit and to the unnecessary detriment of opponents in litigation thereby resulting in different limitation periods applying under identical fact patterns. “In construing a legislative act, a court must first look to the literal meaning of the act. [Cit.] If[, as in this case,] the language is plain and does not lead to any absurd or impractical consequences, the court simply construes it according to its terms and conducts no further inquiry.” Diefenderfer v. Pierce, 260 Ga. 426, 427 (396 SE2d 227). The terms of this statute are plain and reasonable in consequences, the tolling provision is triggered by operation of law and not by the unilateral act of the legal representative of an estate. Furthermore, statutes should be construed in pari materia with other statutes to which they relate and courts should strive to give meaningful effect to the purpose of these statutes. See Ga. Marble Co. v. Whitlock, 260 Ga. 350, 354 (1) (392 SE2d 881). It would thwart the legislative propose of OCGA § 9-11-9.1 (b) to construe OCGA § 9-3-92 in such a manner as to allow appellees a right to manipulate their entitlement to the otherwise strictly limited 45-day delay provisions of OCGA § 9-11-9.1 (b) by unilaterally declining to invoke the tolling benefits of OCGA § 9-3-92. Conversely, by interpreting OCGA § 9-3-92 in pari materia with OCGA § 9-11-9.1 (b), we find that it is both fundamentally fair and statutorily compatible to conclude that the tolling provisions of OCGA § 9-3-92 are triggered by operation of law.

Appellees, citing inter alia, the descriptive heading or catch line of OCGA § 9-3-92 and the case of Lazenby v. Ware, 178 Ga. 463 (173 SE 86), assert the tolling provision of OCGA § 9-3-92 is not triggered by operation of law, but can only be invoked on a case-by-case basis and in benefit of the estate by its legal representative. The descriptive heading or catch line immediately preceding the text of a Code section does not constitute a part of such statute and is not controlling regarding the construction or interpretation thereof. OCGA § 1-1-7; compare Brown v. Earp, 261 Ga. 522 (407 SE2d 737); Walker v. State, 199 Ga. App. 701 (405 SE2d 887). Moreover, Lazenby, supra, and State Farm &c. Co. v. Pace, 176 Ga. App. 737 (337 SE2d 401) are distinguishable from this case and likewise are not controlling. Lazenby, supra at 463 (3), provides that the tolling provision of the statute does not apply in favor of heirs at law who elect to sue in their own right; the remaining language in Division 3 of Lazenby is dicta and merely establishes that such heirs at law cannot invoke the automatic tolling provisions of the statute in their own suits, albeit for purposes ostensibly beneficial to and in behalf of the estate, as it is only in suits legitimately prosecuted or defended in behalf of the estate by its legal representative that the estate can lay claim to a benefit flowing from this tolling provision. Likewise, Pace, supra at 738, merely holds that OCGA § 9-3-92 is inapplicable to appellees “as individuals suing as heirs at law” of an estate. Such is not the situation in this case. Neither Lazenby nor Pace prohibits appellants from gaining the benefit of the automatic tolling provision of OCGA § 9-3-92 in their defense of the suit brought against them by the estate. Statutes of limitation are not intended to operate solely for the benefit of the party in whose favor they have run, but are also for the public good (Bank of Jonesboro v. Carnes, 187 Ga. 795, 799 (2 SE2d 495)); this rationale is equally applicable to statute of limitation tolling provisions.

In view of the above, we conclude that appellants are correct in their claim that appellees were not entitled to invoke the 45-day delay provisions of OCGA § 9-11-9.1 (b), as the applicable statute of limitation would not expire as to any of appellees’ averred claims, within ten days of the date of filing of the complaint. In view of this holding, we need not address appellants’ remaining assertions in support of their enumerations of error.

4. Appellee Crouch refers in her brief to certain “constitutional issues” allegedly raised before the trial court, and asserts that “by this reference, these arguments and citations of authority are incorporated herein and hereby preserved.” These matters currently are not before this court for adjudication; appellee elected not to file timely notice of cross-appeal, together with appropriate enumerations of error, as was necessary to raise these issues for appellate consideration during this interlocutory review. We express no advisory opinion (Board of Trustees &c. v. Kenworthy, 253 Ga. 554, 557 (322 SE2d 720)) whether these constitutional issues have been adequately raised and preserved before the trial court in the event of a future direct appeal or cross-appeal thereto.

Decided March 8, 1993 —

Reconsideration denied March 25, 1993

Blasingame, Burch, Garrard & Bryant, Gary B. Blasingame, J. Ralph Beaird, Milton F. Eisenberg II, for appellants (case no. A92A2057).

Sullivan, Hall, Booth & Smith, Jack G. Slover, Jr., A. Spencer McManes, Jr., for appellant (case no. A92A2058).

Long, Weinberg, Ansley & Wheeler, J. M. Hudgins IV, David A. Sapp, Glenn E. Kushel, for appellant (case no. A92A2059).

Harman, Owen, Saunders & Sweeney, H. Andrew Owen, Rolfe M. Martin, Robert J. Higdon, Jr., for appellant (case no. A92A2060).

David W. Boone, Leigh M. Smith, Margaret A. McDermott, Richard T. Alexander, Jr., Dover & Sexton, Jonathan P. Sexton, Davis, Gregory & Christy, Hardy Gregory, Jr., for appellees.

In view of the holdings in Divisions 1-3 above, we conclude the trial court erred in denying appellants’ motions to dismiss (as converted by consideration of matters outside the pleadings to motions for summary judgment) and motions for summary judgment, as appellees were required to file the expert affidavit in accordance with OCGA § 9-11-9.1 (a) and could not utilize the 45-day delay provision of OCGA § 9-11-9.1 (b). Compare Kalustian v. McDonald, 194 Ga. App. 435 (390 SE2d 657); see Foskey v. Foster, 199 Ga. App. 205 (404 SE2d 303). Further, the authority cited by appellees, as to the various errors herein discussed, is not deemed to be controlling. Accordingly, judgments shall be reversed and the cases remanded to the trial court for appropriate disposition consistent with this opinion.

Judgments reversed and remanded with direction.

Beasley and Andrews, JJ., concur.


author: Andrews, Judge.

text:
    A92A1853.
    GRIFFIN v. KANGAROO, INC. et al.
    (430 SE2d 82)
   Andrews, Judge.

Griffin appeals from the entry of judgment upon the court’s direction of a verdict in favor of defendants Kangaroo, Inc. and Mansfield Oil Co. on her claims for trespass, nuisance and negligent maintenance of gasoline storage tanks.

1. “ ‘(O)n appeal, we must construe the evidence most strongly to support the jury verdict and the judgment’ [cit.]; likewise, in considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion. [Cit.] The standard for review of a directed verdict and a judgment n.o.v. are the same: ‘Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.’ [Cit.]” Mattox v. MARTA, 200 Ga. App. 697, 698 (1) (409 SE2d 267) (1991).

So viewed in favor of Griffin, the opponent of the motion for directed verdict, the evidence was that she and her deceased husband had owned their residence on Hwy. 78 since the 1950s. They obtained their water from a well dug on their property. During that period, her husband had built a service station on part of the property, including the installation of two gasoline storage tanks. He eventually sold the station and property to Esco which continued to operate it. Foster had also operated another station across the street. The Griffins experienced no problems with their well through the 1970s.

In December 1983, Mansfield Oil bought a piece of the property from Esco. On April 3, 1984, Mansfield sold a portion of that property to Kangaroo, Inc. Kangaroo, Inc. contracted with M. Cameron Head, Inc. to build a new service station on the lot . on a cost plus basis. Head then negotiated with Cooper Construction for the site work on the project, entering into a lump sum purchase order on April 11, 1984 for “topsoil removal — tree/brush, underground tank removal, all site grading as per drawings. ...”

Cooper removed three or four storage tanks from the site with a front end loader. In the process, the teeth on the loader bucket pierced the tanks. The tanks were placed on a corner of the property by Cooper although he did not ultimately dispose of them.

Griffin began experiencing problems with her well water in 1984. When she first discovered an odor, she walked outside and saw that a big tank had been lifted out of the ground. She said Mr. Mansfield was on the site and she talked to him about the tank. He told her they would crush the tank and bury it at the back of the lot.

Griffin contacted the Environmental Protection Agency about the problem sometime between 1984 and 1987. In 1987, the EPA tested the well water and found it unfit for consumption. In December 1987, Mansfield ran a hose from the service station to her house to allow her access to potable water until she could be connected to the county system, which was eventually done.

In the summer of 1989, Griffin retained a private engineering firm to analyze the source of the contamination of her well.

Her complaint was filed on June 28, 1989.

2. The fourth enumeration claims error in the trial court’s denial of her summary judgment on the issue of strict liability of the defendants. “[T]he denial of a motion for summary judgment becomes moot after the case has proceeded to resolution by trial. [Cits.]” Harrison v. Dorsey, 184 Ga. App. 870, 872 (2) (363 SE2d 151) (1987).

Decided March 9, 1993 —

Reconsideration denied March 26, 1993

Donn M. Peevy, G. Wayne Lancaster, for appellant.

Forrester & Brim, James E. Brim III, Bovis, Kyle & Burch, James E. Singer, Charles M. Medlin, for appellees.

3. The first and second enumerations contend the trial court erred in directing a verdict for the defendants on two bases, the statute of limitation and agency. We need address only the former, as it is dispositive of the case.

OCGA § 9-3-30 provides that “[a]ll actions for trespass upon or damage to realty shall be brought within four years after the right of action accrues.”

As set out in the pre-trial order and shown by the evidence at trial, the plaintiff’s claim was based on alleged spillage of gasoline from the tanks when they were removed during the 1984 construction. During the argument on the motion for directed verdict by defendants, Griffin relied on the discovery rule for staying the running of the statute. That rule, however, does not apply to property damage. Corporation of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (1) (368 SE2d 732) (1988); Andel v. Getz Svcs., 197 Ga. App. 653, 655 (2) (399 SE2d 226) (1990).

4. The decision reached in Division 3 makes unnecessary consideration of the remaining error.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.