text:
    A00A1769.
    BUTTS v. WILLIAMS.
    (543 SE2d 779)
   Ruffin, Judge.

Danya Butts sued Dedric Williams for injuries she allegedly sustained in an automobile collision. The jury returned a verdict for Williams, and Butts appeals. She contends that the trial court erred by denying her motions for directed verdict and a new trial because the evidence of Williams’ negligence was undisputed and she was legally entitled to damages. Finding no error, we affirm.

On review of a trial court’s denial of a motion for directed verdict or new trial,

this Court determines if there is any evidence to support the jury’s verdict. Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict. . . . This standard of review requires [Butts] to show that there was no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demanded the verdict sought.

The record shows that, on March 19, 1997, Butts and Williams were both driving north on North Jefferson Street in adjacent lanes. Williams turned into Butts’ lane of traffic, colliding with her car. Although Williams testified that he used his turn signal, Butts stated that she never saw the signal and did not “anticipate anything.” According to Butts, Williams admitted fault to her and to a police officer who arrived at the scene. At trial, however, Williams testified that Butts “was trying to pass me when I had on a signal light.”

After the collision, Butts lost control of her car, which “ended up on the grass in somebody else’s driveway on the opposite side of the road.” She testified that her body jerked from side to side with the movement of the car, her leg hit the console, and her abdomen hit another part of the car. Butts did not tell the police officer that she was injured and said she did not want an ambulance.

Later, however, Butts’ husband told her that she was limping, and he took her to the emergency room at Oconee Regional Medical Center, where she complained of bruises on her leg and pain in her right side. She was released after a series of x-rays revealed no fractures, misalignments, or other abnormalities. Butts testified that she returned to the emergency room two more times in March because she was still in pain. More x-rays were taken, as well as a CT scan of her abdomen. According to Dr. Robert Berger, a diagnostic radiologist at the hospital, these additional tests also showed no abnormalities.

Butts consulted a private physician, who prescribed a variety of muscle relaxants and pain medications which, according to Butts, did not work. Butts then went to see a chiropractor recommended by her lawyer. After two or three months of chiropractic care, her condition improved. Nevertheless, Butts testified that she still experiences occasional pain in her leg and that she can no longer play tennis. When questioned on cross-examination about her medical history, Butts admitted that she “ha[s] had female problems in the past” that have “affect [ed] the whole stomach area.”

Dr. Berger testified that Butts had visited Oconee Regional Medical Center a number of times before her 1997 collision complaining of pain in her abdominal region. According to Dr. Berger, the hospital performed a CT scan of Butts’ abdomen in 1992 after she complained of acute gastritis, urinary tract infection, and dehydration. That same year, the hospital took x-rays of Butts’ ribs and chest after she complained of pain underneath her rib cage. Additional chest x-rays, as well as a series of rib x-rays, were taken on three separate occasions in 1994. In May 1995, another chest x-ray and CT scan of Butts’ abdomen were performed after she again complained of abdominal pain. In October 1995, a “small bowel series” was performed for abdominal pain. And in August 1996, a gallbladder sonogram and an “acute abdominal series” were performed for abdominal pain.

In addition to the hospital visits related to and preceding the collision, Dr. Berger testified that Butts visited the hospital at least twice after the collision. In December 1997, Butts’ right hip and thigh were x-rayed after she apparently fell. According to Dr. Berger, those x-rays showed no abnormalities. In July 1998, an MRI scan was performed on Butts’ right knee due to a history of knee pain. Dr. Berger testified that the MRI revealed “wear and tear” and a small amount of fluid on the joint, but no indication of traumatic injury. Butts testified that the MRI was taken after her leg “gave out” on her at work and that surgery was then performed on her knee. Butts further testified that she could not say whether her knee problem resulted from the 1997 collision.

At trial, Butts sought $10,844.44 in medical expenses and lost wages. At the close of the evidence, Butts moved for a directed verdict, which the trial court denied. The jury then deliberated and returned the following handwritten verdict: “We, the jury, did find Mr. Williams was negligent; however we do not feel Ms. Butts is entitled to any damages.” After consulting counsel, the trial court instructed the jury to resume deliberations and return a unanimous verdict on the form provided by the court. The jury then returned a verdict for Williams.

On appeal, Butts contends that “there was no question about [Williams’] negligence having caused the collision and there was undisputed and unrefuted evidence that [Butts] did sustain some injury in the accident.” Pretermitting whether the evidence demanded a conclusion that Williams was negligent, the jury could have concluded that Butts failed to establish the essential element of proximate cause.

“A negligence action requires proof that the defendant breached a duty of care owed to plaintiff, which breach proximately caused damage to plaintiff.” In the case of injuries allegedly arising from an automobile accident,

[e]ven if plaintiff has established that she has suffered certain substantial physical injuries and even if the nature of these injuries is consistent with her assertion they were the result of a motor vehicle collision, the evidence does not require a conclusion that plaintiff’s injuries were proximately caused by defendant’s negligence.

Likewise, “[e]vidence that plaintiff’s injuries were pre-existing is sufficient for a jury to find the accident did not proximately cause the injuries.” The question of whether the plaintiff has proven proximate cause generally is one for the jury.

Butts asserted that she suffered pain in her abdomen and leg as a result of the collision with Williams. There was evidence, however, that Butts had complained of abdominal pain on multiple occasions prior to the collision. Dr. Berger testified that from 1994 to 1996, the hospital performed two CT scans, multiple x-rays, a gallbladder sonogram, a “small bowel series,” and an “acute abdominal series” on Butts — all as a result of her complaints of abdominal pain. In addition, Butts did not tell the police officer at the scene of the accident that she was injured, and she said that she did not want an ambulance. She eventually went to the emergency room only after her husband told her that she was limping. According to Dr. Berger, the diagnostic tests performed on Butts after the collision showed no abnormalities. And a 1998 MRI on her leg revealed “wear and tear,” but no sign of traumatic injury. In light of this evidence, the jury could have concluded that any abdominal and leg pain that Butts experienced after the collision resulted from pre-existing conditions or from normal degeneration, and not from the collision.

Because the jury could have concluded that Butts failed to establish the element of proximate cause, the trial court did not err in denying her motions for directed verdict and new trial.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

Decided December 11, 2000.

Dozier & Sikes, Lester Z. Dozier, Jr., for appellant.

Daniel Bullard IV, Jon R. Hawk, for appellee.

       (Citations and punctuation omitted.) CSX Transp. v. West, 240 Ga. App. 209, 210 (1) (523 SE2d 63) (1999).

       With the exception of a small, nonproblematic cyst in her kidney first noted during the May 1995 abdominal CT scan, Dr. Berger did not testify to any abnormality found in any of these tests.

        Levine v. Choi, 240 Ga. App. 384, 385 (1) (522 SE2d 673) (1999).

       (Punctuation omitted.) Blosfeld v. Hall, 236 Ga. App. 286, 288 (511 SE2d 196) (1999).

        Levine, supra.

        Duncan v. Randolph, 236 Ga. App. 566, 567 (512 SE2d 688) (1999).

       See Levine, supra at 385-386.


source: Caselaw Access Project

author: Barnes, Judge. Eldridge, Judge,

license: Public Domain

text:
    A00A1863.
    SCHLOMER v. THE STATE.
    (543 SE2d 472)
   Barnes, Judge.

Tony Eugene Schlomer, pursuant to the grant of an interlocutory appeal, appeals the denial of his motion for a directed verdict of acquittal in a bench trial and his motion to quash an accusation charging him with five counts of contributing to the delinquency of a minor. He contends he cannot be convicted of the crimes charged because the State neither alleged nor proved that the victims had committed delinquent acts, and the alleged victims all testified that they did not commit any of the delinquent acts alleged.

The accusation charged Schlomer, a public school bus driver, with committing the crime of contributing to the delinquency of a minor in that he did: (1) “encourage [J. L. P.], a minor under the age of 17 years, to be delinquent by explicitly instructing her on how to have sexual intercourse with three men simultaneously”; (2) “encourage [S. L. V.], a minor under the age of 17 years, to be delinquent by explicitly instructing her on how to have sexual intercourse with three men simultaneously”; (3) “encourage [J. L. R], a minor under the age of 17 years, to be delinquent by telling her she could bring a liquor drink on the bus”; (4) “encouraging [S. L. V.], a minor under the age of 17 years, to be delinquent by talking to her about how long his penis is and how he would hurt her if they were to engage in sexual intercourse”; and (5) “encouraging [E. N. B.], a minor under the age of 17 years, to be delinquent by talking to her about how long his penis is and how he would hurt her if they were to engage in sexual intercourse.”

Schlomer contends that the trial court should have granted his motion to acquit because none of these victims testified at the bench trial that they had acted upon Schlomer’s conversations. He further argues that the trial court should have granted his motion to quash because the accusation failed to allege that the victims had committed delinquent acts.

1. Most jurisdictions in the United States do not require that the victim actually be delinquent or commit delinquent acts to convict an accused of contributing to the delinquency of a minor. See J. A. Bock, Annotation, Criminal Liability for Contributing to Delinquency of Minor as Affected by the Fact that Minor Has Not Become a Delinquent, 18 ALR3d 824 (2000). The Supreme Court of Georgia and this court, on the other hand, have required that the accusation allege and the evidence show that the child is delinquent. Jones v. State, 214 Ga. 163 (103 SE2d 559) (1958); Dabney v. State, 143 Ga. App. 655 (239 SE2d 698) (1977). Dabney held that “[t]o support a conviction for the criminal offense of contributing to the delinquency of a minor, the accusation must allege, and the evidence must show, that the person affected by the forbidden acts and conduct of others was a delinquent or neglected child.”

These cases, however, may not be controlling on the issue because the statute on contributing to the delinquency of a minor has been substantially amended since these cases were decided. The statute formerly provided:

When any parent, guardian, or person having the custody, control or supervision of any delinquent or neglected child, or any other person has knowingly and wilfully encouraged, aided, caused, abetted or connived at such state of delinquency or neglect, or has wilfully done any act or acts which he knew or should have known would produce, promote or contribute to, or tend to produce, promote or contribute to the conditions which render such a child delinquent or neglected, such parent, guardian or other person shall be guilty of a misdemeanor and may be punished as for a misdemeanor.

Ga. L. 1953, Nov. Sess., p. 321.

The statute now provides:
A person commits the offense of contributing to the delinquency . . . of a minor when such person [k]nowingly and willfully encourages, causes, abets, connives, or aids a minor in committing a delinquent act as such is defined in Code Section 15-11-2, relating to juvenile proceedings.

(Punctuation omitted.) OCGA § 16-12-1 (b) (1). The statute now also provides that “[i]t shall not be a defense to the offense provided for in this Code section that the minor has not been formally adjudged to have committed a delinquent act or has not been found to be unruly or deprived.” OCGA § 16-12-1 (c).

To avoid the impact of this amendment, Schlomer argues that although the state was not required to show that the minor was formally adjudicated delinquent, it was required to allege and prove that the victims had committed delinquent acts. The statutory language itself specifies that a person who “encourages, causes, abets, connives, or aids a minor in committing a delinquent act” commits the offense. (Emphasis supplied.) Thus, to resolve this issue we must construe OCGA § 16-12-1 (b) (1).

In doing so we must construe the statute in accordance with the legislature’s real intent and meaning and not so strictly as to defeat the legislative purpose. Johnson v. Housing Auth. of Atlanta, 198 Ga. App. 816-817 (403 SE2d 97) (1991). Further, we must read the statute according to the natural and most obvious import of its language, without resorting to subtle and forced constructions to limit or extend its operation. Burbridge v. Hensley, 194 Ga. App. 523, 524 (1) (391 SE2d 5) (1990). Most significantly, “a court must first look to the literal meaning of the act. [Cit.] If 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) (1990).

In this instance, OCGA § 16-12-1 (b) (1) requires that the accused “encourages, causes, abets, connives, or aids a minor in committing a delinquent act. . . .” Under these circumstances, we agree with Schlomer that under the testimony in this case he cannot be convicted under OCGA § 16-12-1 (b) (1) because all of the minors testified that they did not commit a delinquent act. Jones v. State, supra, 214 Ga. at 164; Dabney v. State, supra, 143 Ga. App. 655. This position is buttressed by the fact that the General Assembly was aware of the decisions that required that the juvenile commit a delinquent act when they added OCGA § 16-12-1 (c) to the statute, but did not amend the statute to alter those holdings.

All statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it, and are therefore to be construed in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect [are] to be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and decisions of the courts. [Cits.]

(Punctuation omitted.) Peachtree-Cain Co. v. McBee, 254 Ga. 91, 93 (1) (327 SE2d 188) (1985).

Accordingly, the trial court’s denial of Schlomer’s motion is reversed and the case is remanded with direction to enter a finding of a directed verdict of acquittal.

2. In view of our disposition above, we need not consider Schlomer’s other enumeration of error.

Judgment reversed with direction.

Blackburn, P. J., concurs. Eldridge, J., concurs fully and specially.

Decided December 11, 2000.

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

L. Jack Kirby, Solicitor, for appellee.

Eldridge, Judge,

concurring specially.

I concur fully with the majority. Georgia’s statute defining the offense of “contributing to the delinquency of a minor,” OCGA § 16-12-1 (b) (1), clearly calls for a defendant to encourage or aid the child in the actual commission of a delinquent act, although under OCGA § 16-12-1 (c), such child need not be formally adjudicated therefor.

I write separately, however, to encourage our legislature to reconsider this approach. As noted by the majority most jurisdictions do not require the child to actually commit the delinquent act before the defendant can be found guilty of encouraging and/or abetting its commission. This would seem logical. Society as a whole is best served when an adult who encourages illegal behavior in a child is stopped before the child can act on such encouragement. Law enforcement should not be forced to sit by idly waiting for a child to commit a criminal act in order to hold accountable the adult who promoted it. In short, an adult’s otherwise criminal behavior should not be contingent upon taking the child down with him or her.


author: Mikell, Judge.

text:
    A00A2076.
    LAGER’S, LLC v. PALACE LAUNDRY, INC.
    (543 SE2d 773)
   Mikell, Judge.

Plaintiff Palace Laundry, Inc. d/b/a Linens of the Week (“Linens”) brought a breach of contract and open account action against defendant Lager’s, LLC (“Lager”). On summary judgment, Linens argued that as a matter of law, it was entitled to recover liquidated damages, damages on an open account, and attorney fees, as a result of Lager’s premature termination of the contract. The trial court agreed. Lager appeals. For reasons fully stated below, we affirm the trial court’s grant of summary judgment to Linens as to Lager’s breach of contract, but reverse as to Linens’ remaining claims and remand the case for a trial on damages.

“In reviewing a grant or denial of summary judgment, this Court conducts a de novo review of the evidence.” To prevail at summary judgment under OCGA § 9-11-56 (c), the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant judgment as a matter of law.

Viewed most favorably to Lager, the evidence shows that Linens is in the business of renting and laundering linens, uniforms, and other related goods. On December 8, 1997, Lager, owner of Max Lager’s American Grill & Brewery, entered a three-year contract with Linens to utilize its services for Lager’s restaurant. The cost to Lager for each delivery depended upon the number and the type of items ordered.

Linens made its first delivery to Lager on March 2, 1998, in preparation for Lager’s opening three days later. After several weeks of deliveries, Lager terminated the contract. In its letter dated June 29, 1998, Lager stated, “This is our 30-day notice of cancellation of linen service. . . . We have not been happy with delivery dependability, quality of the linen, the originally agreed upon prices . . . , and the infrequency of the soiled linens to be picked up.” Linens made its last delivery to Lager on August 10, 1998.

Linens filed this lawsuit on September 21, 1998. Lager filed its answer and counterclaim alleging that Linens deliberately overcharged Lager and falsified accounts. Linens moved for summary judgment on the grounds that Lager’s premature termination triggered the liquidated damages provision. Linens also sought judgment on an open account. The trial court agreed and entered judgment against Lager for $33,117 in liquidated damages, $8,818.11 on an open account, attorney fees equal to 15 percent of the sum total of both amounts, and pre-judgment interest.

1. Lager argues that genuine issues of fact exist as to whether its cancellation of the contract was excused by Linens’ alleged deficient service. Lager’s argument is without merit.

The Supreme Court of Georgia has stated, “The court will take the contract by its four corners, and determine its meaning from its language, and, having ascertained from the arrangement of its words what its meaning is, will construe it accordingly.” Further, “[i]f the language of a contract is clear and unambiguous, the terms of the agreement are controlling and an appellate court should look no further to determine the intention of the parties.” Finally, the general rule in determining contract compliance is substantial compliance, not strict compliance. It is with these mandates from our Supreme Court that we examine the terms of the contract.

As to Linens’ deficient performance, the contract provides:

13. Deficiencies in Service. The Customer expressly waives the right to terminate this agreement during the term hereof or any extensions hereto for deficiencies in service and/or quality of goods unless and until: (1) A written complaint is made promptly to supplier stating the precise nature of the deficiencies in service and/or quality of goods; and (2) Supplier is afforded a thirty (30) day period from the date the written notice is received to correct the deficiencies; and (3) Supplier fails to take action to correct those deficiencies within the thirty (30) day period.

Lager argues that its cancellation letter substantially complied with the contract’s notice provision. The cancellation letter followed Lager’s repeated verbal complaints during the first few months of the contract. These complaints, Lager contends, provided Linens notice of the deficiencies and the opportunity to cure them as required by the contract. Thus, in light of Lager’s previous verbal complaints, the letter substantially complied with the notice provision of the contract. We disagree.

Although it is undisputed that Lager repeatedly complained about Linens’ performance, Lager’s verbal complaints do not abrogate its obligation to comply with the contract’s unambiguous notice provision. “It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties. Defendant in the case must stand upon the contract as made by the parties.”

The contract provides that before termination due to Linens’ deficient service, Lager was required to provide Linens a prompt, written complaint stating the precise nature of the deficiencies. Lager did not do so, as evidenced by Alan LeBlanc’s affidavit. It states that Linens’ service was deficient from its first delivery. The first delivery was made on March 2, 1998. Yet, the first written complaint was made on June 29, 1998. According to the contract, after receiving the written complaint, Linens had 30 days to correct the deficiency. Lager’s June 29 letter cancelled the contract without giving Linens the opportunity to cure the deficiencies. Because Lager did not take the steps necessary to terminate prematurely the contract for deficient service, we find that there is no genuine issue of fact as to its breach of the contract’s notice provision.

Lager next argues that it was excused from complying with this provision because of Linens’ deficient service, which Lager contends constituted a material breach. We rejected a similar argument in Mayor &c. of Douglasville v. Hildebrand. The Hildebrand defendant prematurely terminated the plaintiff’s employment contract without giving him the notice the contract required. In its defense, the defendant argued that it was excused from complying with the contract’s notice provision because the plaintiff did not perform all of the services enumerated in the contract. We held:

Assuming the [defendant] could repudiate the contract without giving ninety days notice, the requirement for such termination must be based on a material breach, a substantial failure to perform. A breach which is incidental and subordinate to the main purpose of the contract . . . does not warrant. . . termination nor does a mere breach of contract not so substantial and fundamental as to defeat the object of the parties in making the agreement.

In this case, we find that Linens’ alleged deficient performance was not a material breach. The object of the contract was the delivery of linen items to Lager’s restaurant so that they could be used in its operation. The object was not defeated by Linens’ alleged deficient service. There is no allegation in LeBlanc’s affidavit that Lager was unable to use the goods delivered by Linens or that Linens’ deficient service impeded or prevented the operation of the restaurant. Thus, Lager’s argument that the affidavit creates genuine issues of fact as to Linens’ material breach is without merit. At most, the affidavit’s allegations about deficient service are evidence of a breach which was incidental to the purpose of the contract.

Lager cites several cases in support of its argument that its performance should be excused due to Linens’ alleged material breach. All of them, however, are inapposite to this case. In Powers Ferry Constr. v. Commerce Builders and Corrosion Control v. William Armstrong Smith Co., this Court excused one party’s performance where the other party completely failed to perform. In this case, Linens did not completely fail to perform.

In Taliafaro, Inc. v. Rose, this Court found that evidence that one party prevented the other from performing its obligations under the contract created a jury question. Here, in LeBlanc’s affidavit, Lager alleges that Linens’ promises to remedy the deficiencies induced Lager to remain in the relationship. This, however, is not evidence that Linens prevented Lager from submitting its complaints in writing as the contract required. Finally, in Foote & Davies Co. v. Houchin Mfg. Co., we held that the trial court should have permitted evidence as to the quality of materials used in a novel, custom-ordered machine to determine whether the buyer was excused from payment of the seller’s expenses. Foote has no application here, as the trial court considered all of the evidence when it ruled on Linens’ motion for summary judgment. Accordingly, we agree with the trial court’s conclusion that Linens did not materially breach the contract. Thus, Lager was required to comply with the contract’s notice provision.

2. In its second enumeration of error, Lager contends that the trial court erred in granting summary judgment on Linens’ open . account claim.

A suit on open account is available as a simplified procedure to the provider of goods and services where the price of such goods or services has been agreed upon and where it appears that the plaintiff has fully performed its part of the agreement and nothing remains to be done except for the other party to make payment. However, when there is a dispute that goes to either assent to the services, terms of the contract, what work was performed, the quality of performance, or cost, then suit on account is not the proper procedure for suit, because there is a factual issue other than nonpayment on the account.

Because we find that a suit on account is not the proper procedure for recovery in this case, we reverse the trial court’s grant of summary judgment on the open account claim.

LeBlanc’s affidavit evidences disputed issues which preclude summary judgment on the open account claim. The affidavit disputes the quality of Linens’ performance. It alleges that items were tattered, worn, discolored, and mismatched. The contract, however, provides that Linens shall provide its goods in a laundered and finished condition.

LeBlanc’s affidavit also disputes cost, specifically Linens’ billing accuracy. It states that Linens’ invoice no. 26229 shows that Linens charged 850 per unit for pants and coats, when the contract unit price was 800. Once Lager produced evidence, however slight, of these factual issues, the burden of persuasion shifted back to Linens to establish the nonexistence of genuine issues of fact. Linens did not attempt to meet its burden. Accordingly, summary judgment was improper.

3. Lager contends that as a matter of law, the contract’s liquidated damages provision is unenforceable. We agree and remand the case for a trial on damages.

“Determining whether [the] clause constitutes an enforceable liquidated damages provision or an unenforceable penalty is a question of law for the court.” To decide whether the clause is enforceable,

the court makes a tripartite inquiry to determine if the following factors are present: First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-estimate of the probable loss.

On summary judgment, the movant has the burden of showing that as to the three prongs, no genuine issue of material fact exists.

The liquidated damages provision at issue in this case provides, in relevant part:

10. Liquidated Damages. The CUSTOMER acknowledges that because of the particular nature of the SUPPLIER’S business, the actual money damages that would be sustained by SUPPLIER in the event of a breach, premature termination or reduction of this AGREEMENT by the CUSTOMER will be substantial and difficult to determine. The parties, therefore, agree that in the event the CUSTOMER terminates this AGREEMENT prior to the expiration of the term hereof . . . , then the CUSTOMER shall pay to SUPPLIER as reasonable liquidated damages (and not as penalty) . . . the total of: (a) One-half (50%) of the average weekly rental for the prior 52 weeks, multiplied by the number of revenue weeks remaining in the terms of this AGREEMENT, plus (b) The charges for . . . any services rendered which are outstanding at the time of termination; plus (c) All costs, including reasonable attorney’s fees incurred by SUPPLIER in enforcing its rights hereunder (in the sum of 15 percent of the sum due under Paragraphs (a) and (b) hereof). . . .

The labels and forms of words used in a contract do not determine whether the provision is enforceable as liquidated damages. Thus, the fact that the contract states that damages are difficult to determine and that no penalty is intended, while perhaps reflecting the parties’ intent, is inapposite. What is clear, however, is that the contract’s formula for computing liquidated damages does not yield a reasonable pre-estimate of probable loss. For this reason, we find that the clause is not enforceable.

Linens relies on Ramada Franchise Systems v. Motor Inn Investment Corp, in support of its argument that the liquidated damages provision is enforceable. Though factually similar to this case, Ramada is distinguishable particularly as it relates to the third prong of the tripartite inquiry, i.e., the reasonable pre-estimation of probable loss.

The Ramada liquidated damages provision looked to the percentage of gross room sales over two years to determine a reasonable estimate of losses. The evidence was undisputed that two years was utilized because it represented the average time required to find a replacement franchisee. Additionally, the Ramada agreement included an exception for contracts that expired in less than two years.

In this case, the liquidated damages formula depends on the average weekly rental cost for the prior 52 weeks. The only evidence offered by Linens in support of the liquidated damages clause was the contract itself. There was no testimony or other evidence about the reasonableness of the formula. Even if there had been testimony explaining the reasonableness of the use of 52 weeks in the formula, the formula still could not be utilized because Linens had made, at most, 16 weeks of deliveries before the contract was terminated. Unlike the Ramada contract, the contract in this case did not include an exception for early termination. Also, the liquidated damages clause demanded payment for the remainder of the contract. There was no evidence, however, that Linens would not be able to find a replacement for Lager within the weeks remaining in the contract.

Decided December 11, 2000.

Long, Aldridge & Norman, Steven P. Smith, Thomas B. Bosch, O. Jackson Cook, for appellant.

Smith, Gambrell & Russell, Shannan L. Freeman, Stephen M. Forte, Cele Ogawa, for appellee.

“Where the amount plainly has no reasonable relation to any probable actual damage which may follow a breach, the contractual provision will be construed as an unenforceable penalty.” Since we find no reasonable relation between the stipulated liquidated damages sum and Linens’ probable loss upon Lager’s breach of the contract, the liquidated damages clause is unenforceable. Accordingly, we reverse the trial court’s entire damages award as it depended upon the enforceability of the contract’s liquidated damages clause and remand the case for a trial on damages.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Miller, J., concur.

       (Citation and punctuation omitted.) Carter v. Tokai Financial Svcs., 231 Ga. App. 755 (500 SE2d 638) (1998).

       Id.

       (Citation and punctuation omitted.) Terry v. State Farm Fire &c. Ins. Co., 269 Ga. 777, 779 (504 SE2d 194) (1998).

       Id. at 778-779.

        Dennard v. Freeport Minerals Co., 250 Ga. 330, 332 (1) (297 SE2d 222) (1982).

       (Citation and punctuation omitted.) Atlanta Six Flags Partnership v. Hughes, 191 Ga. App. 404, 407 (2) (381 SE2d 605) (1989).

       The affidavit was submitted in opposition to Linens’ summary judgment motion.

       175 Ga. App. 434 (333 SE2d 674) (1985).

       (Citation and punctuation omitted.) Id. at 436 (1). We found that the plaintiff’s breach of the contract’s provisions requiring him to attend meetings and keep the director knowledgeable of his whereabouts was not material.

       191 Ga. App. 327 (381 SE2d 755) (1989).

       148 Ga. App. 75 (251 SE2d 49) (1978).

       220 Ga. App. 249 (469 SE2d 246) (1996).

       2 Ga. App. 195 (58 SE 368) (1907).

       (Citations and punctuation omitted.) Five Star Steel Constr. v. Klockner Namasco Corp., 240 Ga. App. 736, 738-739 (524 SE2d 783) (1999).

       See Schluter v. Perrie, Buker &c., PC., 230 Ga. App. 776, 778 (1) (498 SE2d 543) (1998) (wherein a disagreement about billing entries precluded a suit on open account).

        Five Star Steel Constr., supra, 240 Ga. App. at 738.

       (Citation and punctuation omitted.) Jamsky v. HPSC, Inc., 238 Ga. App. 447 (519 SE2d 246) (1999).

       (Citations and punctuation omitted.) Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976).

        Peterson v. P. C. Towers, L.P., 206 Ga. App. 591, 592-593 (3) (426 SE2d 243) (1992).

        Alexander v. Steining, 197 Ga. App. 328, 330 (I) (2) (398 SE2d 390) (1990).

        Daniels v. Johnson, 191 Ga. App. 70, 72 (1) (381 SE2d 87) (1989).

       755 FSupp. 1570 (S.D. Ga. 1991).

        Ramada involves the breach of a franchise agreement that expressly provides for the recovery of liquidated damages upon premature termination.

       (Citations and punctuation omitted.) Daniels, supra, 191 Ga. App. at 72 (1).


text:
    A00A2324.
    WHITEHILL v. THE STATE.
    (543 SE2d 470)
   Mikell, Judge.

A Cobb County jury convicted Christopher Howard Whitehill of burglary and aggravated assault with intent to rape. On appeal, he contends that insufficient evidence of intent exists to support his convictions. We disagree and affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and the evidence must be viewed in the light most favorable to the verdict. Redd v. State, 232 Ga. App. 666 (1) (502 SE2d 467) (1998).

Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citation and punctuation omitted.) Jackson v. State, 236 Ga. App. 260, 261 (511 SE2d 615) (1999).

Construed to uphold the jury’s verdict, the evidence reveals that on August 18, 1998, at approximately 1:00 p.m., Whitehill rang the doorbell of a home owned by Sylvia Urrutta and her husband. The victim, Mrs. Urrutta’s housekeeper, was alone in the house. She looked through a side window and saw Whitehill, whom she recognized as having performed yard work in the area. The victim, who is Hispanic and speaks little English, testified through an interpreter that she opened the door “a little bit.” Whitehill asked to speak with the homeowner. When the victim indicated no one was home, Whitehill forced his way inside and knocked the victim to the ground. Whitehill pinned the victim with his knee and pulled up her shirt and bra. The victim testified that Whitehill tried to unbutton her pants as well as his own trousers. As they struggled on the floor, Whitehill struck the victim repeatedly. Finally, the victim spied a golf club, grabbed it, and swung at Whitehill. She missed, but he fled.

The victim called a bilingual friend, who called the police. Officer Jerald Hood responded. He testified that when he arrived at the Urrutta residence, the victim was trembling, breathing rapidly, and tearful. Through an interpreter, the victim explained the attack and described her assailant. The officer noted golf clubs in the foyer. Mrs. Urrutta testified that she returned home while the police were there. Mrs. Urrutta attested to the bruises on her housekeeper’s body.

Whitehill testified at trial. He claimed that the victim permitted him to enter the foyer. Whitehill also claimed that the victim was provocatively dressed and made sexual advances toward him. The defendant testified that the victim grabbed his waist; he pushed her away, she fell, and he left, closing the door behind him.

In his sole enumeration of error, Whitehill contends that the evidence of intent to rape is insufficient to support his convictions. Intent to rape is an essential element of both the burglary and aggravated assault charges against Whitehill. The indictment charged him with committing burglary by entering Mrs. Urrutta’s home without authority and with the intent to commit rape. See OCGA § 16-7-1 (a). Similarly, he was charged with assaulting the victim with intent to rape by removing her clothing. See OCGA § 16-5-21 (a) (1).

Intent to rape may be proved by circumstantial evidence. Mangham v. State, 234 Ga. App. 567, 570 (2) (507 SE2d 806) (1998).

It is not necessary for the State to show that appellant expressed an intent to rape in so many words, or declared a purpose to carry the intent into effect, for the jury to arrive at the conclusion he so intended. The intention may be gathered from the circumstances of the case as proved. Whether appellant intended to rape the victim was a matter for the jury to determine and, as a general rule, the State must of necessity rely upon circumstantial evidence.

Decided December 11, 2000.

Richard D. Wilson, for appellant.

Patrick H. Head, District Attorney, Maria B. Golick, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Butler v. State, 194 Ga. App. 895, 897 (2) (392 SE2d 324) (1990). In the instant case, the victim testified that Whitehill pulled up her shirt and bra, exposing her breasts, and that he tried to remove her pants as well. “Thus, there was evidence, although circumstantial insofar as intent is concerned, sufficient to establish that the defendant assaulted the victim with intent to commit rape.” (Citations and punctuation omitted.) Id. Since the jury is the sole arbiter of the credibility of witnesses, it was authorized to disbelieve Whitehill and believe the victim. The evidence was sufficient for any rational trier of fact to find Whitehill guilty beyond a reasonable doubt of burglary and aggravated assault with intent to rape.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.


author: MlKELL, Judge.

text:
    A00A2345.
    TOUCHTON et al. v. AMWAY CORPORATION et al.
    (543 SE2d 782)
   MlKELL, Judge.

Don and Sue Ellen Touchton (“appellants”) filed this action against Amway Corporation (“Amway”) and several individuals in the Amway distribution network, asserting claims of fraud, breach of contract, and violations of the Sale of Business Opportunities Act (“SBOA”), OCGA § 10-1-410 et seq. The trial court granted Amway’s motion for summary judgment on all claims. Appellants appeal the judgment only as to the SBOA claims, contending that the court erred in finding that those claims are barred by the two-year statute of limitation. OCGA § 10-1-401 (a) (l). We disagree and affirm.

In reviewing grants of summary judgment, “this [c]ourt conducts a de novo review of the law and the evidence.” Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997). To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Contrary to appellants’ argument, we conclude that the trial court properly held that the SBOA claims are barred by the statute of limitation. Appellants alleged that Amway violated OCGA § 10-1-411 (a) (1), which prohibits pyramid marketing programs, by participating in the operation of a network of Amway distributors known as the Yager network. Appellants claim the Yager network is directed primarily at the recruitment of new members rather than the sale of Amway products. Similarly, appellants claim that Amway, through the actions of the Yager network, violated OCGA § 10-1-414, which prohibits sellers from representing, without supporting documentation, that a business opportunity or multilevel program provides income or earning potential.

Claims for damages under the SBOA may not be brought more than two years after a claimant knew or should have known of the occurrence of the alleged violation. League v. U. S. Postamatic, 235 Ga. App. 171, 174 (3) (508 SE2d 210) (1998). Appellants’ deposition testimony demonstrates that they knew or should have known of the alleged SBOA violations as early as 1988. It is undisputed that appellants became associated with Amway in September 1986 when they applied to be Amway distributors. As part of the application process, appellants purchased Amway’s Business Reference Manual containing the Amway Rules of Conduct, which define the duties and responsibilities of distributors. However, appellants admitted that they did not read the manual until after leaving Amway in 1995. Appellants were part of the Yager network.

Mr. Touchton stated that he first became aware of wrongdoing by the Yager network at a seminar he and his wife attended in May 1988, when they had a “very, very rude awakening.” Appellants realized that the Yager network violated Amway rules by operating a recruitment-based system and focusing on the sale of non-Amway motivational materials. According to appellants, immediately following the seminar, they were told by two senior distributors that “even though [Amway] did not approve of the [Yager] system, they would not do anything about it for fear that Yager may pull his people out of Amway. . . .” Appellants’ 1995 document “A History of Our Business” provides that they continued to become aware of the abuses of the Yager network in 1988 and 1989, when they learned that a larger percentage of network earnings was derived from non-Amway items and recruitment than from the sale of Amway products. Therefore, based on the evidence in the record, the statute of limitation began to run at the end of 1989, at the latest, and expired in 1991. Appellants did not file this action until March 28, 1996.

We reject appellants’ contention that an affidavit Mr. Touchton filed in response to Amway’s motion for summary judgment raises a genuine issue of material fact. The affidavit, in which Mr. Touchton swore that he and his wife did not become fully aware of the alleged wrongdoing in the Yager network and Amway until November 1995, directly contradicts appellants’ earlier deposition testimony.

It is well settled that a party cannot survive summary judgment by contradicting his own prior testimony. Tri-Cities Hosp. Auth. v. Sheats, 247 Ga. 713, 714 (279 SE2d 210) (1981); Harrison v. Beckham, 238 Ga. App. 199, 202 (2) (518 SE2d 435) (1999). In Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), the Supreme Court left open the possibility that a party may offer a reasonable explanation for his contradictory testimony. However, the Court held that “the burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge.” Id. at 30 (2). “A trial judge’s determination as to the reasonableness of such an explanation will be upheld unless clearly erroneous.” Rhodes v. ABC School Supply, 223 Ga. App. 134, 136 (1) (476 SE2d 773) (1996).

In a detailed order, the trial court rejected the contradictory portions of Mr. Touchton’s self-serving affidavit, and we conclude that the decision was not clearly erroneous. Contrary to appellants’ argument, Touchton’s earlier testimony was not ambiguous, and his affidavit fails to provide a reasonable explanation for the contradiction. See Worley v. State Farm &c. Ins. Co., 208 Ga. App. 805, 807 (432 SE2d 244) (1993).

Absent Mr. Touchton’s affidavit to the contrary, the record demonstrates that appellants were aware of the alleged wrongdoing within the Yager network and Amway in 1988 and 1989. Furthermore, even if appellants were not fully aware that the alleged abuses within the Yager network constituted SBOA violations, any failure to discover their claims is the result of appellants’ lack of diligence and will not toll the statute of limitation. “Mere ignorance of the facts constituting a cause of action does not prevent the running of the statute of limitations, for a plaintiff must exercise reasonable diligence to learn of the existence of a cause of action.” (Citations omitted.) Limoli v. First Ga. Bank, 147 Ga. App. 755, 757 (250 SE2d 155) (1978). Thus, the record shows that appellants knew or should have known of the alleged SBOA violations in 1988 and 1989, and the trial court properly held that their claims were time-barred.

Decided December 11, 2000.

Warlick, Tritt & Stebbins, Edward L. Speese, for appellants.

Fulcher, Flagler, Reed, Hanks & Harper, James W. Purcell, for appellees.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       In League v. U. S. Postamatic, 235 Ga. App. 171, 173-174 (3) (508 SE2d 210) (1998), we held that because OCGA § 10-1-417 (b) makes any violation of the SBOA a violation of the Fair Business Practices Act (“FBPA”), OCGA § 10-1-390 et seq., claims for damages under the SBOA are governed by the two-year statute of limitation provided by the FBPA.


author: Ruffin, Judge.

text:
    A00A2391.
    YODER v. THE STATE.
    (543 SE2d 784)
   Ruffin, Judge.

In September 1997, a jury found Harold Yoder guilty of two counts of child molestation. Yoder did not file an appeal. In February 2000, however, he filed a motion for an out-of-time appeal. The trial court denied the motion, and Yoder appeals. We affirm.

A criminal defendant may be entitled to an out-of-time appeal if he was denied his right to an appeal through his counsel’s negligence or if he was not adequately informed of that right. It is well settled that

[a] criminal defendant who has lost his right to appellate review of his conviction due to error of counsel is entitled to an out-of-time appeal. However, a convicted party may, by his own conduct or in concert with his counsel, forfeit his right to appeal by sleeping on his rights.

After pronouncing Yoder’s sentence, the trial court instructed Yoder as follows:

Now you have a right to appeal this conviction to the Appellate Courts of Georgia and if you wish to do so, notice of appeal or motion for new trial must be filed within thirty days of today’s date. [Your attorney] will advise you further about this, I’m sure. If you cannot afford an attorney, the Court will appoint you one to represent you on appeal. However, you have the right and really the duty if you wish to appeal to obtain your own attorney if you can.

Decided December 11, 2000.

Michael D. Reynolds, for appellant.

J. Gray Conger, District Attorney, Roger H. Anderson, Assistant District Attorney, for appellee.

Notwithstanding the trial court’s instructions, Yoder did not file an appeal or motion for new trial within 30 days. At the hearing on his motion for out-of-time appeal, Yoder testified that, after his sentence was read, he was in such a state of shock that “[i]t was like a switch went off in my mind, and after that, I know there’s background noise, but [it] was just like an out-of-body experience, just like I wasn’t there.”

Yoder testified that he met with his attorney to discuss an appeal, but concluded that he could not afford it. He said that, following the trial, “there was just a little money left over for my wife to live on.” Yoder’s family met with his trial attorney to discuss filing an appeal, but Yoder directed them “not to try to pursue the appeal” for financial reasons. Eventually, Yoder’s family raised the money, and this motion for out-of-time appeal was filed.

The trial court concluded that Yoder had been fully advised of his right to appeal and that he failed to exercise that right. Although Yoder argues that he could not afford an appeal at that time, the trial court clearly informed him that, if indigent, an attorney would be appointed. Under these circumstances, the trial court did not err in denying Yoder’s motion.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

        Burroughs v. State, 239 Ga. App. 600 (1) (521 SE2d 652) (1999).

       (Citations and punctuation omitted.) Id.

       See Grovenstein v. State, 233 Ga. App. 230, 231-232 (504 SE2d 24) (1998).


text:
    A00A2549.
    JACKSON v. THE STATE.
    (543 SE2d 770)
   Mikell, Judge.

A Clayton County jury convicted David Dequanta Jackson and his brother, Dudley Morton, of criminal attempt to commit armed robbery, carrying a concealed weapon, and carrying a pistol without a license. Jackson appeals from the denial of his motion for new trial. We affirm.

1. In two enumerations of error, Jackson contends that the trial court erred in denying his motion for a directed verdict of acquittal.

A directed verdict of acquittal should be granted only when there is no conflict in the evidence, and the evidence, with all reasonable deductions and inferences, demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Gunter v. State, 237 Ga. App. 863 (517 SE2d 105) (1999). The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether, under the rule set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Id. On appeal from a criminal conviction, the defendant no longer enjoys a presumption of innocence, and the evidence must be viewed in the light most favorable to the verdict. Moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Mincey v. State, 237 Ga. App. 463, 464-465 (2) (515 SE2d 433) (1999).

Viewed in this light, the transcript reveals that on December 17, 1998, the defendants entered a NationsBank branch in Clayton County. Betty Jo Grossnickle, the head teller, testified that despite the moderate weather, the defendants were wearing heavy ski jackets with hoods tied tightly around their heads. The defendants were standing at a table, holding brochures, and looking around. The branch manager, Laura Stewart, testified that she saw them at the customer service sign-in podium. When she approached them to offer assistance, they seemed “surprised.” Jackson kept his face turned away from her. Morton inquired about opening an account, which the manager explained could not be done at that branch. The defendants did not leave. Stewart felt uncomfortable because her office was isolated, so she called Grossnickle to sit nearby. The defendants walked to a teller line on the far side of the bank and asked for a deposit slip. The teller testified that she asked for an account number. Although Morton held an account, he could not recall the number. The defendants took the deposit slip and left.

Grossnickle testified that the defendants had stayed in the bank for ten to fifteen minutes. When she observed the defendants return a few minutes later, she alerted Stewart, who set off the alarm. Grossnickle testified that Jackson’s jacket pocket was bulging and he kept his hand in it. She believed he had a gun and that the defendants were preparing to rob the bank.

Stewart testified that she met the defendants at a point inside the front door where their images could be captured on the surveillance camera. They asked again for information about opening an account. After Stewart gave them the same information she had previously, she asked if they wanted anything else. They replied no and left. Stewart testified that she closely examined their physical appearance so that she could relate it to the police later. The police arrived, and Grossnickle pointed them in the defendants’ direction.

Captain Scott D. Martin and Detective Alex Manning spotted the defendants on the street nearby and approached them with their guns drawn. Manning searched them and found a loaded nine millimeter Lorcin in Jackson’s pocket. Shortly after taking them into custody, Detective Manning discovered that her wallet was missing. The officers returned to the spot where they had encountered the defendants and saw a piece of paper blowing across the road. It was a NationsBank deposit slip, bearing Morton’s fingerprints, which read: “no shit. . . give me the money, no dye pack . . . you are scared . . . all of it. . .all of it.” A similar note was found in a car parked nearby that was registered to the defendants’ mother. The note stated: “Nothing funny, I have two guys watching you, please give me all your money and no one would get hurt. Keep both your hands where I can see them.”

“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon.” OCGA § 16-8-41 (a). A person commits the offense of criminal attempt when, “with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. Jackson argues that the absence of a threat or demand for money inside the bank mandates reversal of his conviction. We disagree.

To constitute an attempt there must be an act done in pursuance of the intent, and more or less directly tending to the commission of the crime. In general, the act must be inexplicable as a lawful act, and must be more than mere preparation. Yet it cannot accurately be said that no preparations can amount to an attempt. It is a question of degree, and depends upon the circumstances of each case.

(Citations and punctuation omitted.) Adams v. State, 178 Ga. App. 261, 263 (2) (b) (342 SE2d 747) (1986). In Adams, the defendant had discussed the method by which he intended to commit armed robbery and drove to the location, a hotel. He was apprehended in the parking lot before he had an opportunity to find a victim. The defendant was armed with a handgun, and his face was covered with two stocking masks. We held that his actions constituted substantial steps toward the commission of armed robbery. Similarly, in the instant case, we hold that the jury was authorized to find that Jackson’s actions in entering the bank with a loaded, concealed weapon, attempting to hide his face, and casing the premises, coupled with the circumstantial evidence of his possession of a demand note, are inexplicable under the circumstances as lawful acts and are more than mere preparation.

Decided December 11, 2000.

Robert H. Sutiles, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

Accordingly, we conclude the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Jackson was guilty of attempted armed robbery, carrying a concealed weapon, and carrying a pistol without a license. Jackson v. Virginia, supra. It follows that the trial court did not err by denying Jackson’s motion for a directed verdict of acquittal.

2. Jackson also enumerates as error the trial court’s refusal to give his requested charges on “bare suspicion” and “two theories.” The latter charge states that where all the facts and circumstances of the case and all reasonable deductions present two equal theories, one of guilt and the other of innocence, then the jury must acquit the accused. However, “this statement of law does not accurately state the principle addressed and should never be given.” Johnson v. State, 210 Ga. App. 99, 102 (2) (435 SE2d 458) (1993), citing Langston v. State, 208 Ga. App. 175 (430 SE2d 365) (1993). In any event, when the jury charge given substantially covers the principles in the requested charge, it is not error to fail to give the requested charge. Stephens v. State, 214 Ga. App. 183, 185 (3) (447 SE2d 26) (1994). In the case sub judice, the trial court correctly charged the jury on the law of circumstantial evidence, the presumption of innocence, and the need to prove Jackson’s guilt beyond a reasonable doubt. Under these circumstances, it was not error to refuse to give the “two theories” charge. Id.; see also Ward v. State, 271 Ga. 648, 653 (7) (b) (520 SE2d 205) (1999).

In addition, since the trial court gave complete instructions on reasonable doubt and the presumption of innocence, the court did not err in refusing to give the requested charge on bare suspicion. Lowe v. State, 267 Ga. 180, 181 (2) (476 SE2d 583) (1996); Kennedy v. State, 205 Ga. App. 152, 156 (5) (d) (421 SE2d 560) (1992).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.


text:
    A00A2568.
    LITLAND v. SMITH.
    (543 SE2d 468)
   Mikell, Judge.

John Litland sued Jackie W. Smith for fraud and breach of an oral contract relating to the construction of Litland’s home. The trial court converted Smith’s motion to dismiss into a motion for summary judgment and entered judgment in favor of Smith. Litland appeals, arguing that the court erred in concluding that Smith acted in his corporate capacity and that there was no consideration for the alleged oral contract. We affirm.

In reviewing grants of summary judgment, “this [c]ourt conducts a de novo review of the law and the evidence.” Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997). To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in this light, the evidence shows that Smith is the president of Taurus Development, Inc. (“Taurus”), with whom Litland contracted to build his home. The contract contained a mandatory arbitration clause. Following an inspection, Litland and Smith realized that the home would not be completed by the closing date. Smith urged Litland to go forward with the closing and personally guaranteed that the work would be done to Litland’s satisfaction; however, this agreement was not reduced to writing. The closing took place as scheduled.

The disputed items were not corrected. As a result, Litland filed suit against Smith “d/b/a Taurus Development, Inc.,” alleging that he breached the oral agreement and committed fraud. Taurus was not a party to the litigation.

1. First, Litland challenges the court’s determination as a matter of law that he had not contracted with Smith in an individual capacity. Litland argues that Smith acted individually when he made an oral promise to complete the work in a satisfactory manner. We disagree. “Because the cardinal rule of corporate law is that a corporation possesses a legal existence separate and apart from that of its officers and shareholders, the mere operation of a corporate business does not render one personally liable for corporate acts.” Fuda v. Kroen, 204 Ga. App. 836, 837 (1) (420 SE2d 767) (1992). “ffinsulation from liability is an inherent purpose of incorporation.” Clark v. Cauthen, 239 Ga. App. 226, 227 (2) (520 SE2d 477) (1999).

We conclude that the trial court properly found that Smith acted on behalf of the corporation in his dealings with the plaintiff. Litland admits that he contracted with Taurus for the construction of his home, and he has not attempted to pierce the corporate veil to hold Smith liable for an alleged breach by Taurus. Because Litland knowingly contracted with Taurus, he is estopped from denying its corporate existence in an effort to avoid the mandatory arbitration clause. OCGA § 14-5-4.

2. Litland inexplicably raises an argument regarding the Statute of Frauds in connection with the preceding enumerated error, perhaps in an effort to bolster his claim against Smith individually. Litland contends that Smith’s alleged promise constituted an original undertaking, in which Smith substituted himself as the party required to perform, releasing Taurus from its obligation under the contract, and, therefore, the agreement was not subject to the Statute of Frauds. See Donald H. Gordon Co. v. Carswell, 184 Ga. App. 701, 704 (362 SE2d 483) (1987); OCGA § 13-5-30 (2).

The trial court did not rule on whether the alleged agreement was subject to the Statute of Frauds, however. “Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken.” Lee v. American Central Ins. Co., 243 Ga. App. 759, 761 (1) (530 SE2d 731) (2000). See also Mapp v. Drake, 178 Ga. App. 830, 831 (344 SE2d 682) (1986).

Furthermore, even if we were able to consider the merits of Litland’s argument, he would not prevail. In order for a promise to be considered an original undertaking, the new promisor, for valuable consideration, must substitute himself as the party who is to perform, and the original promisor must be released. Donald H. Gordon Co., supra, 184 Ga. App. at 704. In the case sub judice, the record is devoid of any evidence demonstrating that Smith acted in any capacity other than as the president of Taurus, or that Taurus was released from its obligation under the contract. Thus, the alleged agreement was not an original undertaking and would have been unenforceable under the Statute of Frauds had the court considered this argument. OCGA § 13-5-30 (2).

3. In his next enumeration, Litland argues that the court erred in concluding that the alleged oral agreement fails for want of consideration. Likewise, this argument has no merit.

Assuming, arguendo, that the alleged promise by Smith constituted a new oral contract, it must be supported by consideration separate from that which formed the basis for the former contract between Litland and Taurus. Bearden v. Ebcap Supply Co., 108 Ga. App. 375 (133 SE2d 62) (1963). Litland produced no evidence of additional consideration for the alleged agreement. Thus, the trial court correctly granted summary judgment in Smith’s favor.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

Decided December 11, 2000.

Morgan M. Robertson, for appellant.

Talley & Darden, Charles L. Davis, Jr., for appellee.


text:
    A00A0929.
    WHITE v. NORFOLK SOUTHERN RAILWAY COMPANY.
    (542 SE2d 511)
   Barnes, Judge.

Nancy E. White, administratrix of the estate of her late husband, James E. White, appeals the grant of summary judgment to Norfolk Southern Railway Company in her action against the railroad under the Federal Employers’ Liability Act, 45 USC § 51 et seq. (“FELA”), and the Federal Safety Appliance Act, 49 USC § 20301 et seq. (“FSAA”), for the death of her husband. The trial court granted summary judgment to Norfolk Southern because it found that Kelson v. Central of Ga. R. Co., 234 Ga. App. 200 (505 SE2d 803) (1998), required that result. The issue before us is whether Kelson requires the result reached by the trial court. As we find that the trial court misapplied Kelson, we must reverse.

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the party opposing the motion should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988). When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

2. Giving Mrs. White the benefit of all reasonable doubt, and construing the evidence and all inferences and conclusions in her favor, as the party opposing the motion, the record shows that James White, a conductor for Norfolk Southern, was killed while attempting to couple two railroad cars on a freight train. The cars would not attach properly, and it was later determined that this failure resulted from defective coupling devices on both cars.

Norfolk Southern contends that, after the first attempt to couple the cars failed, White decided to stand between the cars during coupling to hold the defective coupling device on one car so that the device would hold its position and attach to the coupling device on the other car. When the coupling was again attempted, the rail cars came too close together and White was crushed between the cars. Norfolk Southern contends further that it cannot be liable for White’s death because its work rules prohibit its employees from standing between cars during coupling for any reason and that White’s violation of this rule was the sole, proximate cause of his death. See Kelson, supra, 234 Ga. App. at 209 (4):

Kelson’s voluntary and deliberate action in climbing between the moving train cars and, in the process, letting go of the handgrip, when he could have waited mere seconds for the coupling to be complete, was so unreasonable, unnecessary, and dangerous that the trial court was justified in finding that such action constituted the sole, proximate cause of his injuries.

We find significant differences, however, between the facts in Kelson and the facts in this case. Kelson testified about his actions and admitted that he voluntarily decided to climb between the cars while the cars were being coupled. Id. at 201. Also, in Kelson, no defects were found in the equipment on the cars. Id. In this case, the coupling devices on both cars were defective, and no direct evidence shows that White voluntarily or intentionally remained between the cars. Norfolk Southern would have us infer that he intentionally stood between the cars because, after the accident, he was found caught between the cars and a conductor on another train heard him order his engineer to “slack off” in a tone of voice that suggested that something was wrong.

All that is known with certainty, however, is that after the first unsuccessful attempt to couple the cars, White instructed the engineer to try again, then instructed him to “ease back about ten feet,” and finally ordered the engineer to slack off. We find that this evidence does not support Norfolk Southern’s proposed inference that White was intentionally standing between the cars at the time. Although it is possible that White may have done what Norfolk Southern suggests, “ ‘[a]n inference cannot be based on mere conjecture or possibility.’ ” Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 683 (3) (a) (498 SE2d 748) (1998). It is equally possible that White may have been caught between the cars unintentionally. Accordingly, we find no factual support for the trial court’s application of Kelson to these facts, and, therefore, the grant of summary judgment to Norfolk Southern based on Kelson must be reversed.

3. This case also differs from Kelson because there an FSAA violation was alleged, but not shown. Here, the evidence showing that the coupling devices failed on two occasions and the additional evidence that the coupling devices on both rail cars were found to be defective after the accident at the very least creates an issue of fact concerning a violation of the FSAA. See 45 USC § 53; 49 USC § 20302 (a) (1) (A) (formerly 45 USC § 2); Central of Ga. R. Co. v. Carter, 212 Ga. App. 528, 529 (1) (442 SE2d 269) (1994); Western & Atlantic R. v. Gentle, 58 Ga. App. 282, 288-296 (198 SE 257) (1938). When some evidence shows an FSAA violation, summary judgment is not appropriate. Shiver v. Norfolk-Southern R. Co., 269 Ga. 168 (496 SE2d 903) (1998).

Further, under the FELA, an employee’s contributory negligence is not a bar to recovery, 45 USC § 53, and a railroad can be held liable even for slight negligence that was the proximate cause of an employee’s injury. Kelson, supra, 234 Ga. App. at 203. Thus, if the railroad’s negligence was the proximate cause of his death, Mrs. White could still recover for her husband’s death even if he were somehow shown to have been negligent also. Under the evidence in this case, the violations of the FSAA and the misalignment of the rail cars raise the issue of the railroad’s negligence sufficiently to send this case to a jury.

Accordingly, the trial court erred by granting summary judgment to Norfolk Southern.

Judgment reversed.

Eldridge, J., concurs fully and specially. Blackburn, P. J., concurs in the judgment only.

Eldridge, Judge,

concurring specially.

While I agree totally with the opinion of the majority, I feel it necessary to clarify some points, because my Kelson v. Central of Ga. R. Co., 234 Ga. App. 200 (505 SE2d 803) (1998), opinion has been misconstrued in the trial court.

In Kelson v. Central of Ga. R. Co., supra, plaintiff’s conduct was the sole proximate cause of his injuries, because Kelson negligently moved from a position of safety on a side ladder to the end ladder while attempting to hold his radio in his free hand, released his hold on the side ladder, attempted to grab the end ladder with such hand, missed the grab, and jumped to the coupling to break his fall just prior to the coupling impact; his foot was caught in the coupling. Although Kelson alleged a violation of the Federal Safety Appliance Act, he presented no evidence of such violation.

1. Under the FSAA and the Automatic Coupler Act, proof of a defect in safety equipment at trial by the injured employee constitutes strict liability of the railroad under either of the federal acts. See 45 USC § 53; 49 USC 20302 (a) (1) (A) (formerly 45 USC § 2); Central of Ga. R. Co. v. Carter, 212 Ga. App. 528, 529 (1) (442 SE2d 269) (1994); Western & Atlantic R. v. Gentle, 58 Ga. App. 282, 288-296 (198 SE 257) (1938). Therefore, the railroad is not entitled to summary judgment where there exists any evidence that either the FSAA or ACA has been violated, causing injury to the employee. Shiver v. Norfolk-Southern R. Co., 269 Ga. 168 (496 SE2d 903) (1998).

Decided November 2, 2000

Reconsideration denied December 12, 2000

Burge & Wettermark, F. Tucker Burge, Grover & Childs, Denmark Groover, Jr., for appellant.

Weissman, Nowack, Curry & Wilco, William C. Thompson, Laura S. Morris, for appellee.

2. As to the Federal Employers’ Liability Act, the railroad is liable for slight negligence; therefore, the employee’s negligence cannot constitute the sole proximate cause of his injury but only a concurrent proximate cause where the railroad’s negligence constituted a concurrent proximate cause of his injuries. See Kelson v. Central of Ga. R. Co., supra at 203. Thus, where the railroad is negligent in the misalignment of the box cars, negligent in violation of the FELA, FSAA, or ACA that causes the employee to have to go between the box cars to effect a coupling, then the negligence of the employee in violating the work rules and placing himself in a position of danger does not constitute the sole proximate cause of his injuries but merely a concurrent proximate cause. See Kelson v. Central of Ga. R. Co., supra at 203. If the railroad could escape liability under the FELA, FSAA, or ACA by merely making all dangerous acts required to be performed in the employment on the railroad the sole proximate cause of the employee’s injury, then the railroad would successfully avoid the intent and purpose of these Acts in contravention of the intent of Congress, because it knows that such dangerous conduct must be engaged in by employees to keep the railroad functioning despite any work rules.


author: Pope, Presiding Judge.

text:
    A00A1179.
    TELESCRIPPS CABLE COMPANY v. WELSH.
    (542 SE2d 640)
   Pope, Presiding Judge.

Mark D. Welsh filed this class action against Telescripps Cable Company asserting that the late charge assessed by the company on overdue monthly payments was an unenforceable penalty under Georgia law.

Telescripps provided cable television service to portions of the Atlanta metropolitan area. Each subscriber to the service signed a Service Agreement, which stated that an unspecified late fee would be charged to a customer’s account if payment was not received by the due date. At the time they signed up for the service, Telescripps customers were provided with a rate card showing the current late fee. The fee was $2 in February 1991; it increased to $5 in March 1991 and then to $6 in January 1994.

Under the Service Agreement, Telescripps billed in advance for its services. Each monthly statement showed the balance owing and a payment due date, which was 27 days after the statement was mailed. If a subscriber did not pay by the stated due date, Telescripps notified the subscriber on the next monthly billing statement. That statement was mailed approximately 30 days after the previous month’s statement was mailed. If the subscriber did not make a payment by the next due date, an additional 27 days later, the late fee was added to the account and showed up on the next monthly statement. Therefore, subscribers had 57 days from the mailing of the first statement in which to make payment before a late fee was assessed.

If payment was not received by the sixty-second day of the billing cycle, Telescripps performed an electronic, or “soft,” disconnection. If the subscriber had not paid by the sixty-fifth day, Telescripps initiated collection efforts such as collecting payments in the field or disconnecting the service at the subscriber’s residence, a “hard” disconnection. The Service Agreement provided for a $20 collection fee “if a technician collects the balance when he comes to disconnect the service,” (i.e., a field collection). And if a hard disconnection occurred, the subscriber was required to pay a reconnection fee to restore service. These fees were in addition to the late fee. If the account still was not paid, Telescripps continued its collection efforts, including telephone calls, mailings and referral to a collection agency. After 90 days, the account was closed for nonpayment.

Approximately ten percent of Telescripps’ subscribers per month failed to pay on time. The costs incurred by Telescripps in collecting on delinquent accounts varied according to how often and how long a particular subscriber was delinquent, what collection efforts were used and whether the charges were ever paid. The costs included payroll costs, telephone costs, equipment costs, mailing costs, costs of funds and collection fees.

In 1996, Welsh filed suit on behalf of himself and all others similarly situated, asserting claims for breach of contract and money had and received. After the class was certified, Welsh moved to redefine the class, and the trial court granted the order. As redefined, the class consists of: (a) current Georgia residents, (b) who were, for the six-year period prior to the effective date of the class action, subscribers to Telescripps cable service, under any trade name, and (c) who were assessed and paid a “late fee” prior to either a “soft” or a “hard” disconnection of cable services.

Welsh subsequently moved for partial summary judgment as to liability, and Telescripps filed a motion to dismiss and a cross-motion for summary judgment. The trial court granted Welsh’s motion for partial summary judgment and denied Telescripps’ motions. Telescripps appeals from that order, as well as from the trial court’s class certification orders.

1. Telescripps asserts that the trial court erred in denying its motion to dismiss based upon the voluntary payment doctrine. This doctrine is set forth in OCGA § 13-1-13, which reads:

Payments of claims made through ignorance of the law or where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered unless made under an urgent and immediate necessity therefor or to release person or property from detention or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule prescribed in this Code section.

The party seeking to recover payment bears the burden of showing that the voluntary payment doctrine does not apply. See Rod’s Auto Finance v. Finance Co., 211 Ga. App. 63 (1) (438 SE2d 175) (1993). But as movant, Telescripps bears the burden of establishing that Welsh would not be entitled to relief under any state of facts that could be proven to support the claims. Butler v. Dawson County, 238 Ga. App. 808, 810 (518 SE2d 430) (1999). “Even taking this standard into account, however, we agree with [Telescripps] that dismissal is warranted.” (Citation omitted.) Id.

Under the Service Agreement, a late fee was incurred if payment was not made by the due date. Each of the members of the plaintiff class was aware of this policy, yet failed to make timely payment. They then chose to voluntarily pay the late fee after it was assessed. The plaintiffs raise no claim of misplaced confidence, artifice, deception or fraudulent practice. Nor do they assert that the payment was made under urgent necessity or to prevent the improper seizure of or to secure the release of person or property. OCGA § 13-1-13. Instead, they assert that they did not know the late fee was not a reasonable preestimate of Telescripps’ probable loss incurred ás a result of a subscriber’s late payment.

This assertion ties in with plaintiffs’ claim that the late fee was an unenforceable penalty. In order for the late fee to be considered an enforceable liquidated damage provision, rather than a penalty, it must comply with three requirements, one of which is that it must be a reasonable preestimate of probable loss:

Such provisions are enforceable if (1) the injury caused by a breach of contract is difficult or impossible to estimate accurately; (2) the parties intended to provide for damages rather than a penalty; and (3) the stipulated sum is a reasonable estimate of the probable loss.

Swan Kang, Inc. v. Kang, 243 Ga. App. 684, 686 (1) (534 SE2d 145) (2000). See also Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976).

Assuming, without deciding, that the late fee was not a reasonable preestimate, the plaintiffs are asserting that they did not know that the late fee was unenforceable under the law. In other words, the plaintiffs are simply stating that they made their payment under ignorance of the law. And when payment is made through mere ignorance of the law, it is not recoverable:

When money is paid with a full knowledge of all the facts and circumstances upon which it is demanded, or with the means of such knowledge, it cannot be recovered back upon the ground that the party supposed he was bound in law to pay, when in truth he was not. He shall not be permitted to allege his ignorance of the law, and it shall be considered a voluntary payment. White v. Rowland, 67 Ga. 546, 557 (1881).

(Punctuation omitted.) Hawkins v. Travelers Ins. Co., 162 Ga. App. 231, 235 (1) (290 SE2d 348) (1982). See also Cotton v. Med-Cor Health Information Solutions, 221 Ga. App. 609, 611 (2) (472 SE2d 92) (1996) (voluntary payment doctrine bars claim made through an unexcused ignorance of the law); Twin Oaks Assoc. v. DeKalb Venture, 190 Ga. App. 854, 856 (2) (380 SE2d 469) (1989) (recovery barred where payment of prepayment penalty was not legally required).

This holding is in accord with a recent Florida appellate decision, which held that the claims of a similar plaintiff class were barred in the light of the voluntary nature of the plaintiffs’ payments:

Even if the [subscribers] were unaware of the actual costs which the [cable company] incurred in connection with the late payment, the [subscribers] were informed of the payment deadline and the possibility that the late charges could be imposed upon late payment. They nevertheless decided to make late payment, and to pay the late charges assessed thereon. Having so decided to make voluntary payment of the late charges, the appellants are now precluded from maintaining an action for recovery of those voluntary payments.

Hassen v. MediaOne of Greater Fla., 751 S2d 1289, 1290 (Fla. App. 2000). See also Hill v. Galaxy Telecom, Case No. 1:98CV51-D-D, 2000 U. S. Dist. LEXIS 2404 (N.D. Miss. 2000) (voluntary payment doctrine entitled cable company to judgment as a matter of law on claim that late fee was an unlawful penalty); McWethy v. Telecommunications, 988 P2d 356 (Okla. Civ. App. 1999) (motion to dismiss on claim that late fee was an illegal penalty was properly granted under voluntary payment doctrine).

The plaintiffs assert, however, that the application of the voluntary payment doctrine must be considered in conjunction with the equities of OCGA § 23-2-32 under their claim for money had and received. In particular, they point to our Supreme Court’s holding that:

In an action for money had and received, the plaintiff generally can recover a payment mistakenly made when that mistake was caused by his lack of diligence or his negligence in ascertaining the true facts and the other party would not be prejudiced by refunding the payment — subject to a weighing of the equities between the parties by the trier of fact.

Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 406 (349 SE2d 368) (1986). But this holding presupposes that a plaintiff made payment under a mistake of fact, as was the case in Folsom, where plaintiff overpaid due to a computer mistake. Id. at 400. See also Cochran v. Ogletree, 244 Ga. App. 537, 540 (536 SE2d 194) (2000) (OCGA § 13-1-1 does not bar recovery under a balancing of the equities where parties laboring under a mutual mistake of fact).

Here we have found that there was no mistake of fact, merely ignorance of the law. Under these circumstances, it is not necessary to apply the Folsom balancing test. See, e.g., Yeazel v. Burger King Corp., 241 Ga. App. 90, 99 (3), n. 20 (526 SE2d 112) (1999) (Folsom inapplicable where payments made voluntarily with knowledge of all the facts and not due simply to plaintiff’s negligence in failing to ascertain the facts); Chemin v. State Farm &c. Ins. Co., 226 Ga. App. 702, 704 (487 SE2d 638) (1997) (voluntary payment doctrine bars recovery where plaintiffs failed to show mistake of fact or law); Cot ton, 221 Ga. App. at 612 (where no evidence of mistake of fact, voluntary payment doctrine bars recovery even if the charges imposed were in violation of a statute).

Decided November 22, 2000

Reconsideration denied December 13, 2000

Gerry, Friend & Sapronov, William D. Friend, John W. Sandifer, Mari Myer, for appellant.

Page & Bacek, Brian N. Smiley, James M. Bishop, Butler, Wooten, Overby, Fryhofer, Daughtery & Sullivan, Joel O. Wooten, Jr., C. Frederick Overby, Jeffrey G. Casurella, for appellee.

Mark M. Middleton, amicus curiae.

Accordingly, we hold that the voluntary payment doctrine barred plaintiffs’ claims for recovery of the late fees and Telescripps was entitled to the dismissal of the plaintiffs’ complaint.

2. In light of our holding in Division 1 above, we do not find it necessary to reach the remaining enumerations of error.

Judgment reversed.

Miller and Mikell, JJ, concur.

       For purposes of this argument, we assume, without deciding, that plaintiffs were entitled to assert a claim for money had and received despite the parties’ express written agreement. See, e.g., Baghdady v. Central Life Ins. Co., 224 Ga. App. 170, 171 (2) (480 SE2d 221) (1996) (theory of money had and received applies only when there is no legal contract).


text:
    A00A1208.
    OUTDOOR SYSTEMS, INC. v. WOOD et al.
    (543 SE2d 414)
   Pope, Presiding Judge.

This dispute over a lease for a parcel of land and a billboard raises a question of standing.

On September 23, 1986, National Advertising Company (“National”) entered into an agreement with Robert Vinson to lease a small parcel of real property in Fulton County upon which it erected and maintained an outdoor advertising sign. The lease established the term as follows: “The term of this lease shall commence on November 1, 1986, and . . . shall continue for an initial term of ten years from the first day of the first month following erection of the advertising display(s) (hereinafter called ‘the effective date’).”

On July 21,1987, the same parties entered into an almost identical agreement for the same property. This second agreement apparently replaced the first because the parties agree that this is the operative agreement. This agreement established the term as follows: “The term of this lease shall commence on September 1, 1987, and . . . shall continue for an initial term of ten years from the first day of the first month following erection of the advertising display(s) (hereinafter called ‘the effective date’).” The parties agree that the sign was built on or about December 10, 1987. The lease further provided that it would continue thereafter at the option of the lessee on the same terms, “until terminated as of any subsequent anniversary of the effective date by written notice of termination given not less than sixty days prior to such anniversary date by either the lessor or lessee.” The parties amended the lease in 1992 to alter the rental rate. The amendment, signed by both National and Vinson, does not purport to change the effective date of the agreement, but in a recital, it refers to the “effective date” as “September 1, 1987.”

In a letter dated August 7, 1996, Vinson gave notice that it was terminating the “September 23, 1986” agreement and that the termination would be effective November 1, 1996. In April 1997, Vinson spoke with Randy Whitaker of National and reminded him of the letter of termination and the need to begin negotiations on a new lease. On April 22,1997, Vinson sent a memorandum to National proposing terms for a new agreement. On April 28, 1997, Vinson received a letter from National indicating that an agreement had been reached to “renew our sign lease commencing September 1, 1997 for ten years.” But on July 16, 1997, Vinson wrote National regarding “the renewal contract I sent to you on June 4, 1997. . . .” The letter went on to say, “This Letter is to remind you that the present lease expires on August 31, 1997. If a new lease is not fully executed by that date, by your company, myself and Dr. Goldman, the billboard will need to be removed from the property.” On August 4, National sent a lease agreement to Vinson for his signature. Vinson sent a counteroffer to National. But Vinson never agreed with the terms National sought, and no agreement was reached.

On August 15, 1997, Outdoor Systems, Inc. (“Outdoor”) purchased all of National’s common stock. Thereafter, Outdoor began to correspond with Vinson about the lease. Specifically, on September 18, 1997, Outdoor sent a renewal agreement regarding the lease to Vinson for his signature. Vinson never signed the agreement.

In October 1997, Vinson allegedly allowed Jere Wood to place campaign signs on the billboard during his campaign for mayor of Roswell.

On November 18, 1997, Outdoor brought suit seeking a declaratory judgment that the lease had renewed by its own terms on an annual basis beginning August 31, 1997, on the grounds that neither Outdoor, National nor Vinson gave proper notice of termination at least 60 days in advance of the anniversary date of the effective date of the second lease. Outdoor also claimed that Vinson and Wood breached the lease, trespassed, and wrongfully took possession of the billboard and replaced the advertising with campaign signs. Vinson filed a counterclaim for wrongful possession and trespass by Outdoor.

Approximately six months after filing suit, National purported to assign its rights in the lease to Outdoor effective retroactive to August 15, 1997. The assignment was not filed in the case until September 1998.

Outdoor eventually moved for partial summary judgment seeking a determination that the lease remained in effect in accordance with its terms through August 31, 1999. Vinson and Wood sought summary judgment of Outdoor’s claims on the grounds that the lease was properly terminated on August 31, 1997, that Outdoor did not have standing to sue, that the lease was not transferable, and that it was not even assigned until after the lawsuit was filed. The trial court granted Vinson’s and Wood’s motions and denied Outdoor’s. Outdoor appeals.

1. Standing to Sue. The trial court held that Outdoor did not have standing to sue because there was no contract between Outdoor and Vinson when suit was filed and the lease was not assigned until later. The court relied on Macintosh v. Marvin M. Black Co., 114 Ga. App. 777 (1) (152 SE2d 804) (1966). That case held: “An action brought by the assignee of a written contract in its own name must affirmatively show that the transfer or assignment was in writing in order to withstand a proper demurrer.” Id. But that case does not address the exact situation here where the lessee purportedly executed a written assignment of the lease, after suit was filed, that purports to be effective prior to the suit.

Outdoor’s trespass claim and its claim that the contract renewed automatically must be analyzed separately because they are based on different principles of law.

(a) The Trespass Claim. National was the lessee at the time of the alleged trespass. Although Outdoor had already purchased all of National’s stock, there is nothing in the record to show that National was not still a valid corporate entity at the time of the alleged trespass. “Unlike a merged company, a corporation whose stock is acquired usually remains in business as a subsidiary of the acquiring corporation.” United States v. Philadelphia Nat. Bank, 374 U. S. 321, 389 (83 SC 1715, 10 LE2d 915) (1963). Indeed, the written assignment from National to Outdoor executed in 1998 indicates that National still existed as a separate entity at that time. Thus, in order for Outdoor to pursue the trespass claim in its own name, it must have obtained that claim from National.

Although a trespass claim may be assignable, see OCGA § 44-12-24, National never specifically assigned the cause of action to Outdoor. Rather, it purported to assign “its right, title and interest as lessee or tenant in and to the Lease, . . . and all rights, powers, and privileges associated therewith.” The law in Georgia is that a cause of action for trespass does not run with the land even when a fee simple interest is conveyed. Rome Kraft Co. v. Davis, 213 Ga. 899, 901-902 (102 SE2d 571) (1958). In that case, the Supreme Court held that a cause of action did not pass to the transferee of property even though the conveyance included “all rights, remedies, and powers” contained in the security deed. Id. “[A] conveyance of land, without more, does not assign to the grantee therein a right of action resulting from a trespass previously committed on such land.” Id. at 901-902. It follows that a cause of action for trespass does not pass with an assignment of a lease for real property. Thus, the lease assignment did not convey the cause of action for trespass.

Nor can Outdoor claim that it was the lessee at the time of the alleged trespass just because the assignment was retroactive to before the trespass occurred. It is true that the parties to a contract may execute a contract on one date stating that it is effective retroactive to an earlier date:

It is elemental that contracting parties may agree to give retroactive effect to their contracts as they may see fit. And, it is fundamental that where parties to an agreement expressly provide that a written contract be entered into as of an earlier date than that on which it was executed, the agreement is effective retroactively as of the earlier date and the parties are bound thereby.

(Citation and punctuation omitted; emphasis supplied.) American Cyanamid Co. v. Ring, 248 Ga. 673, 675 (286 SE2d 1) (1982). As shown by the above quotation, the retroactive date is effective between the parties to the agreement. We find no case law to support the proposition that the retroactive date is effective against third parties to the agreement. And, such a rule would lead to anomalous results in this case. Thus, the trial court correctly ruled that Outdoor has no standing to pursue the trespass claim.

(b) Renewal of the Lease. Outdoor contends it has standing based on the lease assignment to assert that the lease automatically renewed because Vinson did not give the proper notice of termination and therefore Vinson has breached the lease. The lease contemplates assignment. Paragraph 8 of the lease provides: “This lease . . . shall inure to the benefit of and be binding upon the parties hereto and to their respective tenants, heirs, successors, personal representatives, executors, administrators, and assigns.” See Dennard v. Freeport Minerals Co., 250 Ga. 330, 334 (2) (297 SE2d 222) (1982).

Vinson contends that he never consented to an assignment. But, as shown in Dennard, the above-quoted clause indicates “clear assent to the assignability and delegability of all the contract terms.” Id. Thus, Vinson had consented in advance to an assignment. Accordingly, Outdoor has standing to assert that the lease automatically renewed. In this instance, the fact that the assignment is retroactive does not affect Vinson’s rights. Rather, Outdoor simply stands in the shoes of National.

2. Notice of Termination. Outdoor contends that the undisputed facts show that Vinson failed to give proper notice of termination and that therefore the lease automatically renewed in accordance with its terms beginning August 31, 1997, and continuing through August 31, 1999. Vinson claims that the undisputed facts show that he gave proper notice of termination. We hold that there is an issue of fact.

As set forth above, Vinson gave an ambiguous notice of termination on August 7, 1996. Although the lease was not due to terminate until the fall of 1997, the notice stated that the lease was being terminated on November 1, 1996. Yet the parties continued to operate under the lease past November 1, 1996. Vinson and National then had discussions over the course of the next year regarding a possible new lease, and Vinson reminded National of the letter of termination. In July 1997, Vinson sent a second letter that indicated that the present lease was due to expire on August 31,1997. But that letter is inconsistent with the earlier letter, although it could be consistent with the dialogue between the parties. That letter is also insufficient standing alone to constitute notice of termination because it was not sent at least 60 days in advance of the termination date as required by the lease. The record does not contain any evidence to show that Vinson and National agreed that the ambiguous notice of termination was sufficient notice under the circumstances, although the letter suggests that they did. Finally, some of the correspondence between Vinson and National refers to there being a “renewal agreement.”

Although there is no contrary evidence from National, Vinson’s evidence of termination is contradicted by the language of the contract itself and the ambiguous nature of the continuing discussions between the parties. A jury will have to decide whether notice was sufficient, whether National agreed that it was, or whether National waived any complaint about notice. “It is . . . well-recognized that a party to a contract ‘may waive contractual provisions for his benefit.’ [Cits.]” Kusuma v. Metametrix, 191 Ga. App. 255, 257 (3) (381 SE2d 322) (1989).

Decided December 1, 2000

Reconsideration denied December 13, 2000

Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling, for appellant.

Wood & Perry, Jere F. Wood, Mark B. McManus, for appellees.

Vinson argues that under Solon Automated Svcs. v. Corp. of Mercer Univ., 221 Ga. App. 856, 857-858 (1) (473 SE2d 544) (1996), he is entitled to summary judgment because the notice he gave was sufficient. But here, unlike in Solon, the allegedly faulty notice referred to the wrong termination date, and the parties continued to operate under the lease after that date thus making the effect of the early notice unclear. The simple error in the notice of termination in Solon only resulted in the tenant having more than the required notice of termination.

The trial court did not err in denying summary judgment to Outdoor or granting summary judgment in favor of Wood. (The only claims against Wood were based on the alleged trespass.) But the court erred in granting summary judgment to Vinson on the claim of wrongful termination of the lease.

Judgment affirmed in part and reversed in part.

Miller and Mikell, JJ, concur.

       Although the trial court struck various paragraphs in Vinson’s affidavit because they contained hearsay, Vinson may testify as to his own remarks in his conversations with National.

       Although Outdoor initially alleged that the lease commenced on January 1, 1988, the first day of the first month after the sign was built, it later amended its complaint to allege that it commenced on September 1, 1987, in accordance with the August 17, 1992 amendment.