author: Smith, Judge.

text:
    A95A2259.
    SHILLIDAY et al. v. DUNAWAY.
    (469 SE2d 485)
   Smith, Judge.

Robert and Linda Shilliday brought this action against Kimberly Dunaway after the vehicle Dunaway was driving struck Robert Shilliday as he was walking on Courtland Street in downtown Atlanta on April 10, 1991. The case was tried before a jury, which returned a verdict in favor of Dunaway. The Shillidays moved for new trial and to set aside the judgment. The trial court denied their motions, and they appeal.

1. Pursuant to OCGA § 9-11-60 (d), the Shillidays contend the judgment should be set aside because of fraud. This contention centers around the introduction of a photograph purportedly representing the accident scene. Near the end of the trial, Dunaway introduced a photograph as her only documentary evidence. She identified the photograph as showing skid marks left by her automobile after she applied her brakes. Over objection, the photograph was admitted. On motion for new trial, counsel for the Shillidays stated that she was not shown the photograph “until in the courtroom during or just before the trial, not long before [Dunaway’s counsel] offered it into evidence.”

The Shillidays contend on appeal, as they did below on motion for new trial, that the photograph was fraudulently obtained and was not shown to their trial counsel and that the judgment therefore should be set aside. The trial court conducted an evidentiary hearing on the motion for new trial. At the hearing, Marcel Reed, a crime technician for the Atlanta Police Department, testified he was contacted by Lieutenant J. T. Warren (Dunaway’s uncle) at approximately 2:30 a.m. on April 11, 1991, and was instructed to take photographs in the vicinity of Courtland Street and Ralph McGill Boulevard. Warren directed Reed where to take photographs and provided the name “Kimberly Kimbrough” as the victim of the collision scene. A report filed by Reed at Warren’s direction cited “Kimberly Kimbrough” as the subject. The report indicated that the investigator of the collision was “Lt. Warren” and bore the handwritten notation on it “Print for Lt. Warren.” Further, a photograph release form indicated that photographs from the file were signed for by Lt. Warren.

OCGA § 9-11-60 (d) (2) provides that a motion to set aside a judgment may be brought based on “[f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant.” (Emphasis supplied.) We are disturbed that the photograph apparently was placed in police files under a fictitious name at the direction of Lt. Warren. Such conduct by one in whom the public places its trust is utterly reprehensible. Despite our concerns, though, we are constrained to affirm the decision of the trial court. The trial court found that no “smoking gun” linked Dunaway to her uncle’s actions. The record supports this finding. We find no evidence that Dunaway had knowledge that Warren planned to have the photographs taken or asked him to take the photographs. Further, it does not appear from the record that Dunaway had any knowledge that the photographs were placed in police files under a fictitious name or that any wrongdoing occurred.

We are bound by the language of Bagwell v. Parker, 182 Ga. App. 313, 315 (355 SE2d 463) (1987): “One who has obtained a judgment at law according to the prescribed method, and who is not chargeable with any conduct which would amount to fraud or imposition upon the adverse party in relation to the judgment, will not be interfered with by a court of equity for the mere reason that a stranger perpetrated a fraud which prevented the other party to the judgment from interposing a defense. The remedy of the party who is the victim of such fraud at the hand of a stranger to the plaintiff is not by resort to a court of equity to have the judgment set aside, but by seeking proper redress against him who perpetrated the fraud.” (Citations and punctuation omitted; emphasis in original.) Because the record supports the trial court’s finding that the evidence did not show that Dunaway was linked to her uncle’s actions, we must affirm the denial of the motion to set aside.

Further, the record supports the trial court’s finding that counsel for the Shillidays failed to exercise “due diligence” in obtaining the photograph. The pre-trial order entered several months before the trial recited that Dunaway’s exhibits included “photographs of the area where the incident occurred.” Trial counsel for the Shillidays stated below that Dunaway’s counsel told her he had given her “everything on his exhibit list.” That contention is not dispositive, however. At the hearing on the motion for new trial, Dunaway’s counsel stated that the Shillidays’ counsel did not ask for photographs listed on the pre-trial order. The trial court sat as the finder of fact and was authorized to find that counsel for the Shillidays did not ask to see the exhibits listed on the pre-trial order and that she failed to exercise the required ordinary diligence. See generally Morgan v. Morgan, 193 Ga. App. 302, 304-305 (5) (388 SE2d 2) (1989). Some evidence was presented that the alleged fraud was not unmixed with the negligence of the Shillidays’s counsel. See OCGA § 9-11-60 (d) (2). Because the record supports the trial court’s ruling that no “smoking gun” linked Dunaway to Lt. Warren’s actions and that the Shillidays’s counsel failed to exercise due diligence in obtaining the photograph, we affirm.

2. The Shillidays also contend the trial court erroneously denied their motion for new trial based on newly discovered evidence. We disagree. One seeking a new trial on the ground of newly discovered evidence must meet six well-established requirements, one being that the failure to acquire the evidence earlier was not caused by the lack of due diligence. See Cantrell v. Red Wing Rollerway, 184 Ga. App. 506, 508 (1) (361 SE2d 720) (1987). As held in Division 1, the record supports the trial court’s finding that the Shillidays’ counsel failed to exercise due diligence in obtaining the photograph. Because all six requirements must be met, the trial court’s denial of the motion may be affirmed on this ground alone. See Leventhal v. Seiter, 208 Ga. App. 158, 161 (1) (430 SE2d 378) (1993).

3. The Shillidays contend on appeal that the photograph should not have been admitted because it was not properly authenticated. Counsel for the Shillidays, however, did not object on this ground to its admission at trial; she merely stated, “I object,” and renewed the objection after voir dire of Kimberly Dunaway. She cannot now complain that her objection was overruled and that the evidence was admitted. See generally James v. Tyler, 215 Ga. App. 479, 482 (5) (451 SE2d 506) (1994). Moreover, authentication of a photograph requires only a showing that it fairly and truthfully represents what it purports to depict. See Paul Davis Systems &c. v. Peth, 201 Ga. App. 734, 737 (4) (412 SE2d 279) (1991). Dunaway’s testimony satisfied this requirement; she agreed that the photograph depicted the skid marks left by her car on the date of the accident. The trial court did not abuse its discretion in admitting the photograph.

4. The Shillidays contend the trial court erroneously refused to charge the jury on the doctrine of last clear chance. “The last clear chance doctrine simply has no application unless the defendant knew of the plaintiff’s perilous situation and had opportunity to take proper evasive action to avoid injuring him. It does not apply to a ‘should know’ or ‘should have known’ situation.” (Citations and punctuation omitted.) Steiner v. Melvin, 143 Ga. App. 97, 99 (3) (237 SE2d 635) (1977). We agree with the trial court that no evidence was presented showing Dunaway had time to take evasive action to avoid the accident. The trial court did not err in refusing to give the requested charge.

5. The Shillidays complain of the trial court’s failure to charge OCGA § 40-6-92 (a). In its order denying the Shillidays’ motion for new trial, the trial court found that the request was not submitted in writing and that any ground for appeal was thus waived. The Shillidays contend that during the charge conference, the trial court stated it did not need the charge in writing to preserve the objection. Their contention is misleading. The trial court said nothing about preserving an objection but merely denied the request to charge. “It is never error to deny an oral request to charge.” (Citation and punctuation omitted.) Slaughter v. Linder, 122 Ga. App. 144, 146 (2) (a) (176 SE2d 450) (1970). That the trial court did not need a written request in order to deny the charge did not absolve trial counsel from filing a written request for this Court’s review. OCGA § 5-5-24 (b) mandates that charges be written. Because no written request to charge on OCGA § 40-6-92 (a) appears in the record, the trial court did not err in refusing to give such a charge.

6. The Shillidays contend the trial court erroneously charged OCGA § 40-6-92 (c), requested by Dunaway. At trial, however, counsel for the Shillidays acquiesced in the charge provided her request was given concerning the definition of an intersection. The court agreed to charge the jury on this issue as requested by the Shillidays’ counsel. The Shillidays cannot complain on appeal about a consequence of their own behavior. “One cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.” (Citation and punctuation omitted.) Stephenson v. Wildwood Farms, 194 Ga. App. 728, 729 (391 SE2d 706) (1990). The trial court did not err in giving the requested charge.

7. Citing Smith v. Hardy, 144 Ga. App. 168 (240 SE2d 714) (1977) and contending that whether Dunaway was speeding was a jury question, the Shillidays complain of the trial court’s refusal to charge OCGA § 40-6-180. Hardy is inapt. The charge given in Hardy was former Code Ann. § 68-1626 (a), which addressed speed in a narrower context than does the requested charge in this case. The requested charge here was not adjusted to the evidence. The law is well established that “[a] request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence; it must not be argumentative or seek an expression of opinion on the part of the court; and it must not be so phrased as to have tendency to confuse and mislead the jury or to becloud the issues in the case.” (Citations and punctuation omitted.) Byrd v. Daus, 218 Ga. App. 145, 148 (4) (460 SE2d 819) (1995). See also Mattox v. MARTA, 200 Ga. App. 697, 699 (4) (409 SE2d 267) (1991). The requested charge simply quoted the Code section and contained matters irrelevant to the evidence presented in this case. References to the approach to a curve, intersection, railroad grade crossing, and the approach and traversing of a hill crest were not pertinent to the issues on trial here. The charge was overbroad and could well have confused the jury and “beclouded” the issues. Hence, the charge was inapt, and the trial court did not err in refusing to give it.

Decided February 29, 1996

Jacobs & Slawsky, David J. Worley, for appellants.

Ervin H. Gerson, for appellee.

8. The Shillidays contend the trial court erroneously charged the jury on assumption of risk and sudden emergency. Trial counsel, however, never excepted to these charges. In fact, trial counsel for the Shillidays suggested that the pattern charge on assumption of risk be given. The Shillidays cannot now complain on appeal that the charge was erroneous. See Division 6, supra.

While OCGA § 5-5-24 (c) does provide that unobjected-to charges may be reviewed “where there has been a substantial error in the charge which was harmful as a matter of law,” instances of reversal under this section “are likely to be very, very rare.” Nathan v. Duncan, 113 Ga. App. 630, 638 (6) (149 SE2d 383) (1966). “Generally, if counsel, who are skilled and trained in the law and who have prepared and tried the case, fail to see the error and enter an exception as provided in subsections (a) and (b), it is not to be regarded as harmful.” Id. A charge “harmful as a matter of law” is one that is “blatantly apparent and prejudicial to the extent that it raises the question of whether the losing party has, to some extent at least, been deprived of a fair trial because of it, or a gross injustice is about to result or has resulted directly attributable to the alleged errors.” (Citations and punctuation omitted.) Central of Ga. R. Co. v. Luther, 128 Ga. App. 178, 181 (1) (196 SE2d 149) (1973). We have reviewed the record, and even assuming the charges were erroneous, we cannot hold that the allegedly erroneous charges were so blatantly prejudicial as to deprive the Shillidays of a fair trial. In light of trial counsel’s failure to except to these charges, the Shillidays’ contentions are without merit.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       Counsel also stated that she objected below on the ground that the photo was not properly authenticated and also that she objected to markings on the backside of the photograph as being “rank hearsay.” These objections do not appear in the transcript, however.

       Though Lt. Warren may not have been a “stranger” to Dunaway in the common use of the word, he was a “stranger” to the litigation in the legal sense. See, e.g., Miller v. Charles, 211 Ga. App. 386, 388 (1) (439 SE2d 88) (1993) (biological father of child nevertheless “stranger” to earlier paternity litigation where not a party).

       The colloquy regarding the charge follows: Trial counsel for the Shillidays: “I’ll except to you not giving OCGA § 40-6-92 (a)”; The Court: “The one that you have not otherwise submitted in writing?” Counsel: “Right. I mean, if that’s all you need I can get it submitted in writing.” The Court: “I don’t need anything.”

         The section states: “No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing. Consistently with the foregoing, every person shall drive at a reasonable and prudent speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching and traversing a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.”

       The former Code section stated: “No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.” Ga. Code Ann. § 68-1626 (a), quoted in Cottongim v. City of East Point, 167 Ga. App. 21, 22 (306 SE2d 30) (1983). The Code section was repealed in 1975. Id.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A95A2729.
    WILLIAMS v. FALLAIZE INSURANCE AGENCY, INC. et al.
    (469 SE2d 752)
   Ruffin, Judge.

Ellen Williams d/b/a Fine Gold (“Williams”) sued Fallaize Insuranee Agency, Inc. (“Fallaize”) and Lloyds Underwriters (“Lloyds”) after she sustained a loss of approximately $13,000 for which Lloyds denied insurance coverage. She appeals the summary judgments granted to both Fallaize and Lloyds. For reasons which follow, we affirm.

On summary judgment, we must construe the evidence and all reasonable inferences and conclusions in favor of the non-movant, Williams. Medley v. Boomershine Pontiac &c., 214 Ga. App. 795, 798 (4) (449 SE2d 128) (1994). Viewed in that light, the evidence shows that on December 3, 1990, Williams purchased through Fallaize an insurance contract underwritten by Lloyds. The policy provided insurance for Williams’ jewelry business and contained an exclusion for an unattended vehicle. About one year later, Williams renewed her initial policy, and the renewed policy was identical in all material respects. Both the original policy and the renewed policy contained the same exclusion for unattended vehicles which provided: “This policy does not insure loss of or damage to property: 3) in or upon any automobile or any other vehicle unless at the time the loss or damage occurs there is actually in or upon the vehicle, the Assured, or a person whose sole duty it is to attend the vehicle.”

On June 11, 1992, approximately six months after Williams renewed the policy, she suffered a loss when someone stole jewelry out of her car. At the time the jewelry was stolen, Williams was inside a store, delivering jewelry to a customer and at least 25 feet away from her car. The record shows that while Williams was inside the store, someone smashed her car window, punctured the tires, released the trunk, stole a briefcase containing jewelry worth approximately $13,000 from the trunk and fled the scene. Williams admitted that she was not watching her vehicle at all times because she was busy transacting business. She further admitted that she did not actually see anyone break her car window, open her trunk, and take the jewelry. Lloyds, relying on the policy’s exclusion for unattended vehicles, denied coverage.

1. Williams contends that the trial court erroneously granted summary judgment to Fallaize on her negligent misrepresentation claim. She alleged that on at least two different occasions she requested that Fallaize find insurance which would cover an unattended vehicle, and that Fallaize falsely represented to her that the coverage was unavailable. Williams argues that because she relied on Fallaize’s misrepresentation, she did not attempt to obtain coverage from another agency and suffered an unnecessary loss. Williams points out that after the loss at issue here, she obtained the desired coverage through another insurance agency.

“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). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. . . . See, e.g., Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981). ... If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

At the outset we note that Williams is not claiming that Fallaize failed to procure coverage, but rather that Fallaize told her no such coverage was available.

In Robert & Co. Assocs. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983), our Supreme Court adopted the Restatement of Torts 2d rule on negligent misrepresentation. Under this rule, “[o]ne who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. [Cit.]” (Punctuation omitted.) Robert & Co. Assocs., supra at 681, n. 1. “In order to survive a motion for summary judgment, [Williams] must show some evidence as to each element. [Cit.] In order to prove the element of justifiable reliance, [Williams] must show that [she] exercised [her] duty of due diligence. [Cit.]” Hanlon v. Thornton, 218 Ga. App. 500, 501 (1) (462 SE2d 154) (1995). Thus, assuming, without deciding, that an employee of Fallaize misinformed Williams that unattended vehicle coverage was unavailable, Williams still must show that she exercised due diligence in relying on the information.

In support of its motion, Fallaize offered evidence that Williams admitted that she never did anything to remove the exclusion, and that she had little difficulty obtaining the unattended vehicle coverage after she shopped for it elsewhere. In addition, the record shows that Williams’ Lloyds’ policy contained a page titled “ADDITIONAL COVERAGES.” That page contained a section titled, “UNATTENDED VEHICLES” with sections to be completed for: NAME OF SALESMAN (“none” typed in space); DETAILS OF AUTOMOBILE (section left blank); PROTECTION (section left blank); AMOUNT TO BE INSURED (section left blank).” This portion of Williams’ Lloyds’ policy indicates that coverage for an unattended vehicle was available somewhere in the insurance marketplace and upon reading her policy, Williams should have inquired further. Furthermore, even without such language alerting Williams to the availability of coverage, she should have exercised due diligence by shopping the marketplace as she did after her loss. Thus, inasmuch as the record reflects a failure by Williams to exercise due diligence, Fallaize has pierced the pleadings and shown the absence of evidence of Williams’ justifiable reliance thereby negating an essential element of Williams’ prima facie case of negligent misrepresentation. Williams has produced no evidence in response showing her reliance was justifiable. Accordingly, the trial court did not err in granting summary judgment to Fallaize. See, e.g., Newton, supra at 437.

2. Williams contends the trial court erred in granting summary judgment to Lloyds because the terms of the unattended vehicle exclusion are ambiguous and subject to more than one interpretation in that the policy fails to define “actually in or upon the vehicle” or “attend the vehicle.” Williams claims there is a jury question as to whether she was “actually in or upon” the vehicle at the time of the loss.

When the language in an insurance policy is clear, an insurance policy is interpreted according to its plain language and express terms, just like any other contract. Alewine v. Horace Mann Ins. Co., 197 Ga. App. 479, 480 (398 SE2d 756) (1990). Although Williams contends the exclusion is ambiguous, a word or phrase is ambiguous only when “ ‘ “it is of uncertain meaning and may be fairly understood in more ways than one.” (Cit.)’ ” Kusuma v. Metametrix, 191 Ga. App. 255, 256 (2) (381 SE2d 322) (1989). And, although ambiguous exclusions may be construed liberally in favor of the insured and strictly construed against the insurer, this cannot be done when the exclusion is clear and unequivocal. United Svcs. Auto. Assn. v. Lail, 192 Ga. App. 487, 489 (385 SE2d 424) (1989). Because the words in this contract are plain and obvious, they must be given their literal meaning.

Thus, Williams’ contention that she was “in or upon” and attending her vehicle within the meaning of her policy is without merit. Although Williams claims that she attempted to keep a watchful eye on the vehicle, she acknowledged that she was unable to do so at all times. Her own testimony indicated that: she did not watch her vehicle at all times; she was away from her vehicle by at least 25 feet and inside a store when the loss occurred; she was distracted as she transacted a sale with a customer; and she failed to notice the break-in as it occurred. Based on the plain language of the contract and construing the ordinary meaning of its words, it is apparent that at the time of loss, Williams was neither “actually in” nor “upon” her vehicle.

Decided February 29, 1996.

Goldner, Sommers, Scrudder & Bass, Stephen L. Goldner, William W. Horlock, Jr., for appellant.

Mozley, Finlay son & Loggins, Wayne D. Taylor, Lawrence B. Domenico, Michael T. Thornton, for appellees.

3. Finally, we address Williams’ contention that Lloyds is es-topped from asserting the unattended vehicle exclusion because Lloyds failed to provide her with a policy within a reasonable period of time of its issuance as required by OCGA § 33-24-14.

Even assuming that Williams did not receive a copy of the renewal policy until after the loss occurred, Lloyds is not estopped from relying on the exclusion to deny coverage. When an insurance company fails to mail or deliver the insurance policy to the insured within a reasonable amount of time after its issuance, the insurance company may still rely on exclusions contained in the policy of which “the insured otherwise had notice. . . .” Investors Nat. Life Ins. Co. v. Norsworthy, 160 Ga. App. 340, 341 (287 SE2d 66) (1981). Because the record clearly shows that Williams had prior notice of the exclusion, Lloyds could rely on it in denying coverage. Accordingly, the trial court properly granted summary judgment in Lloyds’ favor.

Judgment affirmed.

Beasley, C. J., and Pope, P. J., concur.


author: McMurray, Presiding Judge.

text:
    A95A2588.
    TIDWELL v. WHITE et al.
    (469 SE2d 258)
   McMurray, Presiding Judge.

Propounder William Harlow Tidwell and caveators Patsy Tidwell White and Jimmy Otto Tidwell are the adult children of the late Bonita B. Tidwell. After provision for her debts, Bonita B. Tidwell’s last will and testament left the residuary “to my son, WILLIAM HARLOW TIDWELL, provided he survives me, to be his own absolutely and in fee simple.” Caveators challenged the will on the ground that “William Harlow Tidwell subjected Bonita B. Tidwell to duress and undue influence, fear and intimidation, influencing her to make the 1988 will leaving everything to propounder to the exclusion of caveators.” Caveators also alleged that this will had been revoked by a subsequent will. The probate court admitted the will for probate and the caveators appealed to the superior court.

Prior to trial, caveators moved to enforce a purported settlement agreement. They supported their motion with the affidavit of John R. Earl, propounder’s original counsel, who deposed that, on Monday, August 1, 1994, he and “Wm. Morgan Akin, counsel for the caveators, entered settlement negotiations [; . . . that he] discussed the [caveators’ written settlement proposals] with his client[; . . . and that at about] noon on Monday August 1, 1994, both counsel settled the above styled action. . . . [John R. Earl] discussed the settlement with [his] client, William Harlow Tidwell, and [William Harlow] Tidwell agreed to the settlement terms and conditions. This settlement was [an oral] settlement^]” Based upon this oral settlement between the attorneys, John R. Earl “reported to two of the superior court judges, during the lunch hour, that the case had been settled and should be removed from the jury trial calendar. . . .” In response to the caveators’ proposed consent final order, propounder “desired that a paragraph be added in which the caveators withdrew their caveat and stating that [William Harlow] Tidwell, as propounder, did not admit committing any wrongful conduct or any conduct which would justify denying probate of the will.” A revised proposed consent final order, incorporating the desired changes was submitted on August 15, 1994. But on August 17, 1994, propounder “refused to agree to the same, refused to allow [his counsel, John R. Earl,] to sign the same, and discharged [counsel] from representing [propounder].” This version of events was corroborated by the affidavit of Wm. Morgan Akin, counsel for the caveators.

Through new counsel, propounder opposed the motion, arguing that “settlement negotiations were ongoing after the August 1, 1994 date on which the Motion alleges the case was settled.” He submitted an affidavit in opposition, deposing that during settlement discussions with his attorney, “John R. Earl indicated to me that Caveators had agreed to admit that they had lied about certain relevant matters in the Probate Court trial. . . [and that he] rejected the settlement proposal based upon the refusal of Caveators to admit in writing what they had already admitted verbally.”

After a hearing, the trial court granted caveators’ motion to enforce the settlement agreement. The trial court’s order recites: “Prior to the call of the case for trial, counsel for the propounder announced to the Court that the parties had reached a settlement, and requested that the case be removed from the jury trial calendar.” The trial court determined that the propounder’s affidavit shows that the only issue not expressly settled was the propounder’s “insistence that caveators admit they lied in probate court. By affidavit, [Wm. Morgan] Akin denies this was part of the settlement. By testimony, [John R.] Earl denies it was part of the settlement. [John R.] Earl states this was discussed, and propounder agreed to a provision that caveators withdrew their allegations in probate court.” Propounder’s direct appeal to the Supreme Court of Georgia was transferred to the Court of Appeals of Georgia. Held,'.

Propounder does not contend that he did not agree to settle the will contest. Rather, in his sole enumeration of error, propounder contends the trial court erred in imposing settlement terms to which he did not agree. He argues that “Georgia law is very clear that an attorney may bind his client to a settlement only by executing a written agreement.” He further argues “[a]n alleged oral settlement agreement by counsel is simply unenforceable, particularly when the undisputed evidence shows that the client rejected the alleged terms.” We disagree.

1. Initially, we note that no transcript of the testimony adduced before the superior court has been included with the record. “In order for the appellate court to determine whether the judgment appealed from was erroneous, it is the duty of the appellant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings. OCGA § 5-6-41 (c). ‘Thus, where the transcript is necessary(, as in the case sub judice,) and appellant omits it from the record on appeal (or fails to submit a statutorily authorized substitute), the appellate court must assume the judgment below was correct [as authorized by the evidence]. See McAllister v. City of Jonesboro, 242 Ga. 95 (249 SE2d 565) (1978); Brooks v. Home Credit Co., 128 Ga. App. 176 (196 SE2d 176) (1973).’ Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16).” Deen v. United Dominion Realty Trust, 218 Ga. App. 443 (1), 444 (462 SE2d 384). Consequently, in the case sub judice, we accept as correct the recital from the trial court’s order that the attorneys for each side testified that a provision containing caveators’ admission as insisted upon by the propounder was not a term of the settlement agreement as reached between the attorneys.

2. “ ‘Under Georgia law an attorney of record has apparent authority to enter into an agreement on behalf of his client and the agreement is enforceable against the client by other settling parties. Stone Mountain Confederate Monumental Assn. v. Smith, 170 Ga. 515 (153 SE 209) (1930)(.)’ Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (2) (308 SE2d 544). ‘Ordinarily, for an attorney to bind his client to a settlement agreement where there is a dispute as to terms, the agreement must be in writing. OCGA § 15-19-5 (Code Ann. § 9-605). This requirement of a writing goes to the certainty that an agreement exists and to the certainty of the terms of the agreement, not to the question of the consent of the client to the agreement. The writing which will satisfy this requirement ideally consists of a formal written agreement signed by the parties. However, letters or documents prepared by attorneys which memorialize the terms of the agreement reached will suffice.’ Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (2), 676, supra. A party’s ‘denial that (an) agreement was reached is, however, immaterial . . . where it is undisputed that the attorney for the party denying (the) agreement communicated acceptance of the settlement offer. . . . Brumbelow v. Northern Propane Gas Co., 169 Ga. App. 816-817 ((2)) (315 SE2d 11) (1984).’ Stone v. King, 196 Ga. App. 251, 252 (2) (396 SE2d 45). In the case sub judice, [the propounder’s former] attorney of record, Mr. [Earl], did not dispute the existence of a settlement agreement or the terms thereof. Consequently, the trial court correctly concluded that the oral settlement agreement as made between the attorneys and memorialized by the [typed] document rendered [propounder’s] alleged lack of consent irrelevant to the existence and terms of any such agreement. See Brumbelow v. Northern Propane Gas Co., 169 Ga. App. 816, 817 (2), supra. Furthermore, in the case sub judice, since the existence and terms of this oral agreement are not disputed by the attorneys, that settlement agreement is enforceable and ‘the client is bound by its terms even in the absence of a writing or detrimental reliance on the part of the opposite party.’ Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (2), 676-677, supra. Compare LeCroy v. Massey, 185 Ga. App. 828, 829 (366 SE2d 215), where ‘(t)hree of the six attorneys involved swore that there was a settlement agreement (and) three swore that there was not.’ ” Penny Profit Foods v. McMullen, 214 Ga. App. 740, 741 (2) (448 SE2d 787).

Decided February 6, 1996

Reconsideration dismissed March 1, 1996.

Paul T. Wright, for appellant.

Wm. Morgan Akin, for appellees.

Judgment affirmed.

Andrews, and Blackburn, JJ., concur.


author: Judge Harold R. Banke.

text:
    A95A2631.
    SEAY v. THE STATE.
    (469 SE2d 496)
   Judge Harold R. Banke.

Dwight Olen Seay was convicted of two counts of child molestation in January 1994. His sole enumeration of error is that the trial court erred in ruling that he was not entitled to appointed counsel on appeal.

Seventeen months after his conviction, Seay filed a motion for out-of-time appeal, arguing that the failure of his retained trial counsel and the court to inform him of his right, as an indigent, to appointed appellate counsel prevented him from filing a timely appeal and violated his rights to counsel and due process. After a hearing, the trial court denied the motion, finding that Seay was not harmed by the failure to inform him of his right to appointed appellate counsel because he was not indigent during the time that an appeal could have been timely filed. Held:

Decided March 1, 1996.

Joseph F. Bertollo, for appellant.

Cheryl F. Custer, District Attorney, Richard R. Read, Assistant District Attorney, for appellee.

Without question, criminal defendants are entitled to counsel at every critical stage of the proceedings against them, including appeal. Wood v. State, 199 Ga. App. 252, 253 (1) (404 SE2d 589) (1991). Defendants “unable, without undue hardship, to employ the legal services of an attorney or to defray the necessary expenses of legal representation” are indigent and therefore entitled to appointed counsel. OCGA § 17-12-2 (5). But where a defendant retains trial counsel and then claims indigence on appeal, he bears the burden of making that fact known to the trial court or some responsible state official. Hopkins v. Hopper, 234 Ga. 236, 238 (215 SE2d 241) (1975). “If the trial court has no reason to believe that the defendant is indigent and cannot afford the services of retained counsel for the purpose of appeal, it is under no duty to inquire as to the defendant’s indigence and may presume that his retained counsel will protect his appellate rights.” Id.

It is undisputed that Seay was not informed that indigents are entitled to appointed counsel on appeal. The record shows, however, that Seay failed to make his alleged indigence known, even to his trial counsel. Moreover, Seay possessed assets which could have been converted easily to cash by sale or mortgage sufficient to mount an appeal and was therefore not indigent at the time of his conviction. Uniform Superior Court Rule 29.5. Seay had between $1,500 and $2,000 in a checking account, owned a house worth $55,200 with approximately $40,000 unincumbered equity in it, and possessed an equity line of credit of $15,000, with $1,600 in available credit. He also owned a Cavalier automobile that was approximately five or six years old, a personal computer, and a television satellite system. Furthermore, the record shows that Seay and his wife made no effort to arrange a timely appeal and never even sought estimates of the cost of an appeal after trial counsel informed them that an appeal would be expensive. Under these circumstances, the trial court properly denied Seay’s motion for out-of-time appeal.

Judgment affirmed.

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


text:
    A96A0078.
    DENNIS v. THE STATE.
    (469 SE2d 494)
   Judge Harold R. Banke.

Aaron Dennis was convicted of two counts of misdemeanor obstruction of an officer, two counts of felony obstruction of an officer, interference with government property, and simple battery. He enumerates four errors.

The State’s evidence revealed that these charges arose after Dennis’s wife informed police that Dennis had physically abused her. She reported the incident in person because as she was telephoning, Dennis jerked the cord from the wall. Two police officers followed her home to investigate and attempted to talk with Dennis, who is hearing impaired. After Dennis cursed them, ordered them to leave, and pulled out a machete, the officers called for assistance. During the subsequent attempt to arrest Dennis, he kicked, butted, and hit them. As the officers transported Dennis to the police station, he broke a window on the patrol car and escaped. During the ensuing pursuit, he hit an officer in the nose and threatened the others. Held:

1. The trial court properly denied Dennis’s motion for directed verdict because the evidence was sufficient to show that one of the arresting officers, who had just completed his basic training course at the police academy and was a sworn reserve officer with arrest powers, was a “law enforcement officer” within the meaning of OCGA § 16-10-24. Proof that the law enforcement officer was certified is not an essential element of OCGA § 16-10-24.

2. The evidence that the officers were in lawful discharge of their duties, when viewed in the light most favorable to the verdict, was sufficient. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). Warrantless arrests are lawful “if the officer has probable cause to believe that an act of family violence, as defined in Code Section 19-13-1, has been committed.” OCGA § 17-4-20 (a). The OCGA § 19-13-1 definition of family violence includes simple battery, and the record shows that before the officers confronted Dennis, they had probable cause to believe he had committed battery on his wife. See OCGA § 16-5-23 (a). Because the officers were acting in the lawful discharge of their duties during this incident, Dennis’s resistance constituted obstruction. Wagner v. State, 206 Ga. App. 180, 182 (424 SE2d 861) (1992); compare Brooks v. State, 206 Ga. App. 485, 488-489 (425 SE2d 911) (1992). The State’s evidence refutes Dennis’s arguments that his resistance was justified to prevent further mistreatment by the officers and that his actions were unintentional. See O’Neal v. State, 211 Ga. App. 741, 743 (440 SE2d 513) (1994). In determining evidence sufficiency, this Court does not weigh the evidence or determine witness credibility. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).

Decided March 1, 1996.

James P. Brown, Jr., for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

3. We reject Dennis’s argument that a modified Allen charge given at the close of the first day of jury deliberations was coercive. See Romine v. State, 256 Ga. 521, 526-527 (1) (350 SE2d 446) (1986) (discussing the parameters of the jury charge authorized under Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896)). The charge essentially instructed the jury that failing to agree would cause a mistrial resulting in another trial by another jury. This is not unduly coercive. Hardy v. State, 242 Ga. 702, 706 (4) (f) (251 SE2d 289) (1978); see McMillan v. State, 253 Ga. 520, 523 (4) (322 SE2d 278) (1984).

4. The trial court’s jury charge on misdemeanor obstruction did not misinform the jury. The court charged that the definition of misdemeanor obstruction was identical to felony obstruction except that “misdemeanor obstruction is not offering to do violence, but simply resisting arrest.” Although the better practice would have been to fully charge on both misdemeanor and felony obstruction, the charge given, considered as a whole, communicated all the elements of misdemeanor obstruction in a manner not likely to mislead the jury. Brown v. State, 197 Ga. App. 365, 366 (2) (398 SE2d 424) (1990); see Parks v. State, 234 Ga. 579, 582 (2) (216 SE2d 804) (1975) (charging in the exact language of the Code is not required).

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

       The statement at issue is as follows: “If you do not arrive at a verdict in this case, that cannot be helped, but another jury might have to be impaneled to decipher and to try the same issues which you, ladies and gentlemen, are charged with resolving.”


author: Birdsong, Presiding Judge.

text:
    A96A0869.
    RANKIN v. COMPOSITE STATE BOARD OF MEDICAL EXAMINERS.
    (469 SE2d 500)
   Birdsong, Presiding Judge.

Pursuant to its investigative authority under OCGA § 43-34-37 (d), the Composite State Board of Medical Examiners served Dr. Michael Rankin with an administrative subpoena to produce certified copies of the treatment records, insurance claim records, and financial sheets for certain of his patients. Dr. Rankin refused to comply with the subpoena on the ground that the records at issue contain AIDS confidential information as defined in OCGA § 31-22-9.1.

Decided March 1, 1996.

Neely & Player, Steven A. Westby, Thompson, O’Brien, Kemp & Nasuti, Robert C. Buck, for appellant.

Michael J. Bowers, Attorney General, Brenda H. Cole, Deputy Assistant Attorney General, Katherine R. Smith, Janet B. Wray, Assistant Attorneys General, for appellee.

The State Board then filed a petition with the Superior Court of Fulton County, seeking an order requiring compliance with the investigative subpoena. On November 9, 1995, the superior court granted the State Board’s petition. On December 8, 1995, Dr. Rankin filed this direct appeal from that order. (He also filed an application for discretionary appeal, which this Court denied on January 4, 1996.)

The State Board contends that this direct appeal should be dismissed because the matter requires the discretionary appeal procedures set forth in OCGA § 5-6-35. Under OCGA § 5-6-35 (a) (1), the discretionary appeal procedures are required in appeals from decisions of superior courts reviewing decisions of state administrative agencies. The instant case does not involve the typical situation where an administrative proceeding results in a formal administrative decision that is reviewed by the superior court, but it does concern the superior court’s review of an administrative agency’s use and enforcement of its investigative powers.

As such, this case does not fall squarely within the ambit of either OCGA § 5-6-34 or OCGA § 5-6-35. However, where both Code sections may be implicated, “the underlying subject matter generally controls over the relief sought in determining the proper procedure to follow to appeal.” Rebich v. Miles, 264 Ga. 467, 469 (448 SE2d 192). Inasmuch as the decision of a superior court reviewing a final decision of the State Board would require the discretionary appeal procedures, those procedures were required in the instant case. Accordingly, this direct appeal must be dismissed.

Appeal dismissed.

Beasley, C. J., and Blackburn, J., concur.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A95A2338.
    FARR v. TRUST COMPANY BANK OF SAVANNAH, N. A.
    (469 SE2d 501)
   Blackburn, Judge.

Nancy Farr brought the underlying defamation action against Bud’s Wholesale and Trust Company Bank of Savannah, N. A. (Trust Company) to recover damages allegedly sustained upon being wrongfully prosecuted on a check which had been honored by her bank, Wachovia Bank. By her complaint, Farr alleged, among other things, that Trust Company negligently discharged its duties as the “collecting bank” in presenting her check for payment to Wachovia. Trust Company answered denying any negligence, but moved for partial summary judgment limiting damages to those authorized a collecting bank pursuant to OCGA § 11-4-103 (5). On appeal, Farr contends that the trial court’s grant of partial summary judgment for Trust Company was error in that she was a non-party to the Uniform Commercial Code (UCC) transaction involved.

“The measure of damages for failure to exercise ordinary care in handling an item is the amount of the item reduced by an amount which could not have been realized by the use of ordinary care, and where there is bad faith it includes other damages, if any, suffered by the party as a proximate consequence.” OCGA § 11-4-103 (5). Farr argues that the foregoing limitation on damages is inapplicable because she did not participate in a UCC transaction within the meaning of OCGA § 11-1-201 (29).

OCGA § 11-1-201 (29) defines the word “party” as a “person who has engaged in a transaction or made an agreement within this title.” It is uncontroverted Farr drew the check in question on her bank and made it payable to Bud’s Wholesale in the amount of $79.50. Bud’s Wholesale, in turn, deposited the same in its Trust Company account for collection. Farr does not dispute that her check was a negotiable instrument. Having used a negotiable instrument she may be deemed to have done so in contemplation of its presentment for payment upon the action of a collecting bank. Under these circumstances, Farr’s assertion that she has not engaged in a transaction governed by the UCC is without merit. See OCGA § 11-3-104 (2) (b) (a check is a writing constituting a negotfable instrument “if it is a draft drawn on a bank and payable on demand”). See also OCGA § 11-4-101 et seq. (UCC rules for the governance of bank deposits and collections).

The UCC is clear. As a collecting bank, Trust Company “[is] required to exercise ordinary care under O.C.G.A. § 11-4-202 and thus has the right to invoke the damage limitation of O.C.G.A. § 11-4-103 (5).” Alimenta (U.S.A.), Inc. v. Stauffer, 568 FSupp. 674, 678 (N.D. Ga. 1983). Accordingly, we deem this enumeration of error to be without merit.

Judgment affirmed.

Andrews, J., concurs. McMurray, P. J., concurs specially.

McMurray, Presiding Judge,

concurring specially.

I fully agree that the partial grant of partial summary judgment is not erroneous for the reason assigned by plaintiff Nancy C. Farr. I further agree that OCGA § 11-4-103 (5) would limit the liability of Trust Company of Georgia Bank of Savannah, N. A. (“Trust Company”) as a collecting bank, but only with respect to any direct pecuniary consequences of Trust Company’s negligent handling of the check plaintiff Nancy C. Farr drew and which defendant Bud’s Wholesale deposited with Trust Company for collection. But I do not see how that limitation applies to the case sub judice. “An action for wrongful dishonor of checks sounds in tort. Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55, 61 (2c) (390 SE2d 55) (1989). ‘This kind of action may be analogized to an action of libel or slander. . . .’ Hilton v. Jesup Banking Co., 128 Ga. 30, 32 (1) (57 SE 78) (1907).” Associated Writers Guild &c. v. First Nat. Bank of Atlanta, 195 Ga. App. 820 (1) (395 SE2d 23). I recognize in the case sub judice that Trust Company is a collecting bank and not the drawee or payor bank. Nevertheless, the essence of Count 3 is defamation.

Plaintiff’s check was presented by Trust Company to her bank in the form of a facsimile, containing the affidavit that the original had been “lost, stolen, or destroyed while in the regular course of [Trust Company’s] collection.” Wachovia paid on this facsimile, and a stop-payment order was issued for the original, in accordance with Trust Company’s instructions accompanying the facsimile. Trust Company collected, and the Bud’s Wholesale account was credited. Nevertheless, the original was subsequently presented to plaintiff’s bank for collection by Trust Company. When Wachovia refused payment, Trust Company returned the check to Bud’s Wholesale, indicating “the check was not paid[.]” Bud’s Wholesale then swore out a “criminal warrant after [plaintiff’s] check was returned to Bud’s Wholesale marked Insufficient Funds[.]”

The complaint alleged that Trust Company, acting as a depository bank, “undertook to collect instruments such as [plaintiff’s] check . . . , negligently signed the statement/affidavit indicating that the original was lost, stolen or destroyed, when in fact, it had returned that instrument to . . . Bud’s Wholesale, indicating . . . that said instrument was not paid and Trust Company . . . [was] further negligent in its attempts to rectify this matter by informing its customer in a timely manner, so as to spare the Plaintiff the injuries and damages [,]” namely false arrest and defamation. Trust Company moved for partial summary judgment, contending that its liability for any negligence in the handling of plaintiff’s check is limited by the provisions of OCGA § 11-4-103 (5). The trial court granted Trust Company’s partial summary judgment motion in part, that is, “as to any claim which arises out of Bank’s alleged negligent second presentation of the check. . . .” Standing alone, this appears to be over-broad. In my view, the limitation of OCGA § 11-4-103 (5) would apply only if, for example, plaintiff had been charged twice for the item owing to Trust Company’s negligence in handling the item. But plaintiff has alleged no such damage as a proximate cause of Trust Company’s negligent presentation of the original after the facsimile was paid. Rather, the gist of the claim is defamation resulting from Trust Company’s accurate but still tortious statement that the item was returned because of insufficient funds. What Trust Company failed to do, allegedly, is to act with dispatch to make it clear to its customer, Bud’s Wholesale, that the returned item had already been paid. I find no support for the application of OCGA § 11-4-103 (5) to such defamatory omissions by the collecting bank. There is no contention in the case sub judice that the collecting bank should be responsible for the debts of the drawer, as was the case in Alimenta (U.S.A.), Inc. v. Stauffer, 568 FSupp. 674 (N.D. Ga. 1983), and so I am uncertain how that authority applies here. Even if OCGA § 11-4-103 (5) should apply, there is, in my view, a question whether Trust Company acted promptly and in all good faith to prevent precisely the type of defamation allegedly sustained by plaintiff in this case.

Decided March 4, 1996.

Simon, Booth & Cook, William M. Simon, for appellant.

The trial court also deniéd partial summary judgment in part based on the affidavit testimony indicating that Judy Griffin, Trust Company’s officer, “agreed to straighten out the problem of the second presentment and to inform . . . Bud’s Wholesale that the check was not dishonored and that Bud’s Wholesale had been paid.” The trial court reasoned that these promises were “not governed by the Uniform Commercial Code.” Since the net result is that a jury will determine whether Trust Company defamed plaintiff, I concur in the judgment.

Brannen, Searcey & Smith, David R. Smith, Hunter, Maclean, Exley & Dunn, William E. Dillard III, for appellee.

       Bud’s Wholesale is not involved in this appeal.

       The court interpreted an identical statute in Marcoux v. Van Wyk, 572 F2d 651 (8th Cir. 1978). There the court explained that “[w]hen a bank handles an item carelessly, it is liable for the damages caused by its negligence in the amount of the item reduced by the amount that could not have been collected in any event. [Cit.] In other words, the plaintiffs’ measure of damages is the amount they could have collected had the Bank returned the unpaid drafts seasonably; conversely, if the amounts due were uncollectible in any event, the Bank’s negligence caused no damage.” (Emphasis supplied.) Id. at 653.


author: Ruffin, Judge. Beasley, Chief Judge,

text:
    A95A2795.
    GOLD KIST, INC. v. WILSON et al.
    (469 SE2d 504)
   Ruffin, Judge.

This is the second appearance before us of the complex litigation emanating from Gold Kist’s production agreements with Renade Wilson and 14 other egg and pullet producers (“the plaintiffs”) and the sale of Gold Kist’s egg processing facility. In Gold Kist v. Wilson, 213 Ga. App. 154 (444 SE2d 338) (1994), we determined that various material issues of fact remained with respect to both parties’ motions for summary judgment, and the case then proceeded to trial. After a bench trial, the trial court entered judgment in favor of all 15 plaintiffs, collectively awarding them $2,350,000 in compensatory damages. Because we find the trial court’s judgment incomplete due to the absence of findings of fact and conclusions of law, we remand the case for the entry of appropriate findings of fact and conclusions of law.

Gold Kist is a non-profit agricultural cooperative organized under the Georgia Cooperative Marketing Act, OCGA § 2-10-80 et seq. On September 23, 1989, Gold Kist sold its egg processing facility in Hilliard, Florida, to Hillandale Farms (“Hillandale”). Gold Kist assigned the production agreements it entered into with the plaintiffs to Hillandale and received approximately $432,000 for doing so.

Plaintiffs then sued Gold Kist for breach of oral contracts and for fraud based upon alleged misrepresentations by Gold Kist’s representatives that Gold Kist would remain in the egg business indefinitely or until plaintiffs were debt-free. In Count 1, certain plaintiffs, most of whom remodeled or built new chicken houses in the early 1980s, alleged that Gold Kist employees had fraudulently or negligently advised them that Gold Kist would operate the plant for seven years, the length of a typical chicken house loan. They alleged that the value of their chicken houses and equipment decreased substantially when Gold Kist sold the Hilliard processing plant and assigned their contracts.

In Count 2, plaintiffs claimed the full amount of notified equity allocated to them on Gold Kist’s books. Count 3 sought the equity earned in 1989 and the patronage earnings that would have been earned on their flocks had Gold Kist not assigned them to Hillandale. Plaintiffs also contended that the production contracts were unassignable personal services contracts.

In Count 4, plaintiff James Crews asserted an individual breach of contract claim involving a contract he had with Gold Kist to produce eggs. In Count 5, plaintiff F. Murray asserted an individual negligence claim alleging Gold Kist negligently recommended that he purchase certain inappropriate and unnecessary equipment.

In Count 6, plaintiffs claimed they were substantially damaged by the negligent and/or fraudulent advice and broken promises of Gold Kist’s agents which included: 1) advising them that Gold Kist would continue to contract with each of them so long as they continued to perform satisfactorily; 2) encouraging them to expend large sums of money for plants and equipment; 3) promising them that Gold Kist would continue to do business with them until the indebtedness secured by the plant and equipment was paid in full; 4) selling the Hilliard processing plant to a buyer lacking the financial strength of Gold Kist; and 5) causing a decrease in value of their plant and equipment by assigning their contracts to Hillandale. Plaintiffs also alleged that Gold Kist violated the Packers and Stockyard Act.

Count 7 alleged that the parties were in a confidential relationship which required Gold Kist to act with the utmost good faith; that plaintiffs sought and relied upon Gold Kist’s advice regarding all aspects of their chicken operations including financial matters; and that Gold Kist failed to protect their interests. Count 7 also alleged that Gold Kist should account for any excess proceeds from the sale of eggs and chickens it received and that Gold Kist overcharged them for feed costs, medicines, vaccines, and other supplies. Plaintiffs requested an accounting for profits made on their behalf under each production contract and that Gold Kist be required to pay over profits to them.

In February 1995, the eight-day bench trial concluded. The record demonstrates that in lieu of closing arguments, both parties submitted post-trial briefs, and both agreed on the record to the date by which their briefs and proposed findings of fact and conclusions of law were to be submitted to the court. The court took the matter under advisement until July 14, 1995, and then issued a one and one-half-page final judgment which recited no findings of fact or conclusions of law but simply set forth each plaintiff’s individual award.

1. Gold Kist contends the trial court erred by failing to issue findings of fact and conclusions of law pursuant to OCGA § 9-11-52 (a) and by denying its motion for findings and conclusions pursuant to OCGA § 9-11-52 (c).

“[I]n all nonjury trials in courts of record, the court shall upon request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law.” OCGA § 9-11-52 (a). In this case, however, Gold Kist cannot show it made a formal request pursuant to subsection (a). In its motion for reconsideration of the court’s order denying its request for findings and conclusions pursuant to OCGA § 9-11-52 (c), Gold Kist asserted that “[i]t was clearly within the contemplation of both parties that specific findings of fact and conclusions of law would be made in this case,” referencing that part of the record where the parties agreed and the court concurred that specific findings of fact and conclusions of law would be submitted to the court by a specified date. Pursuant to this discussion, the parties submitted lengthy, detailed findings of fact and conclusions of law for the trial court’s adoption. Gold Kist argues that it requested the court to issue such findings and conclusions, and that although the request is not evinced in the record, the foregoing discussion and submission demonstrates the intent of both parties that the court do so.

In denying Gold Kist’s motion for reconsideration, the trial court determined that “[t]he record does not reflect a request by either party for the Court to enter findings of fact and conclusions of law prior to the entry of the Court’s ruling.” Pretermitting whether the foregoing discussion among counsel and the court was in effect a request under OCGA § 9-11-52 (a) that such findings be made, we agree that the court abused its discretion by denying Gold Kist’s post-judgment motion for the issuance of findings of fact and conclusions of law under OCGA § 9-11-52 (c).

In a case of this magnitude and complexity involving so many plaintiffs and claims, we find that it was an abuse of discretion for the trial court to fail to issue findings of fact and conclusions of law. By omitting these crucial ingredients in the judgment, appellate review has been rendered impossible. See, e.g., Zumpano Enterprises v. Ga. Title Distrib., 200 Ga. App. 563 (408 SE2d 813) (1991). We caution, however, that our decision is not be read as a general rule allowing a party to dispense with the requirement that it formally request findings and conclusions pursuant to OCGA § 9-11-52 (a) or holding that a party will always be rescued from its failure to make such a request on the record. Rather, given the particular facts of this complex case, and because the record clearly shows that Gold Kist timely moved post-judgment for the issuance of findings and conclusions which are essential for appellate review, we remand for the issuance of findings of fact and conclusions of law by the trial court.

2. Because our decision with respect to Gold Kist’s remaining enumerations of error will depend in part on the findings of fact and conclusions of law issued on remand, we will not address them herein.

Case remanded with direction.

Pope, P. J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur in the judgment that the case must be remanded for findings of fact and conclusions of law to be made by the trial judge. This is so because the law requires the court to do so “upon request of any party made prior to such ruling.” OCGA § 9-11-52 (a). The statute uses the word “shall.” The statutory requirement is an instance of procedural due process, designed not only to assure that the court as the sole factfinder and law applicator had an evidentiary basis for its understanding of the facts but also to allow appellate review of its legal conclusions applied to those facts. The latter is discernible by the appellate court, when there is a jury trial, from the court’s charge on the law. Spivey v. Mayson, 124 Ga. App. 775, 776 (186 SE2d 154) (1971), describes other purposes as well.

In this instance there was a sufficient request, as a matter of law, as is evident from the discussions of the court and the parties and their actions thereafter. In this regard, the case differs from Burks v. First Union Mtg. Corp., 209 Ga. App. 41 (1) (432 SE2d 822) (1993), and Cage v. Chase Home Mtg. Corp., 212 Ga. App. 861 (1) (443 SE2d 504) (1994), where no request was made. Here the court erred in finding, as it did in its order denying defendant Gold Kist’s motion for reconsideration of the order denying Gold Kist’s post-judgment motion, that “[t]he record does not reflect a request by either party for the Court to enter Findings of Fact and Conclusions of Law prior to the entry of the Court’s ruling.”

As evidenced by the consolidated pre-trial order, the parties planned to try the case before a jury. At the commencement of trial, at the request of plaintiffs, it was decided to proceed with a bench trial. The parties did retain the original designation that the case was to be reported. This, like findings of fact and conclusions of law, are necessary ingredients for an appeal. Carole Lyden Smith Enterprises v. Mathew, 193 Ga. App. 320, 321 (2) (387 SE2d 577) (1989).

At the conclusion of the lengthy trial, and after a recess, the parties announced the time table “we discussed earlier, and some stipulations” regarding the submission of exhibits and “an index, for inclusion in the clerk’s records.” The parties agreed and announced when their “post-trial briefs and proposed findings of fact and conclusions of law” would be submitted, which was agreeable with the court.

In accordance with the schedule, both sides submitted extensive proposed findings of fact and conclusions of law together with their respective arguments, and Gold Kist filed “Responses to Plaintiffs’ Proposed Findings of Fact and Conclusions of Law.”

Decided March 4, 1996.

Alston & Bird, Jay D. Bennett, Richard R. Hays, K. David Steele, for appellant.

Gibson & Spivey, Douglas L. Gibson, for appellees.

The judgment was issued on July 14, and within two weeks Gold Kist by motion sought the absent findings and conclusions, stating that it had “requested” them so that their issuance was “mandatory” pursuant to Gold Kist’s right as provided in OCGA § 9-11-52 (a). It pointed out that the nature of the case, that is, its complexity, multiple parties, and amount of money involved, and the ramifications of an unexplained judgment, confirmed the necessity for the request in the first place.

OCGA § 9-11-52 (a) provides for stated fact findings and legal conclusions. The parties agreed to submit proposed ones reflecting the view of the evidence which each side desired the court to take. The court approved of this procedure and acted upon it, except that it did not set out its findings or conclusions. Although the legal issue of the sufficiency of the request could have been easily avoided by an express and direct oral recitation or written demand by Gold Kist, the record is clear that the request was impliedly made before the judgment was filed. There is little doubt that, had the judgment been for defendant, plaintiffs would be here on the same issue, with the same arguments.

I agree with the majority that a formal request should be made, to obviate the risk of failure and to preclude the wasteful consumption of judicial time and parties’ monetary resources.

       “Notified equity” is each person’s ratable share of the “allocated resources” of the cooperative.

       The plaintiffs’ response to Gold Kist’s motion for reconsideration states that it was the court, not Gold Kist, who instructed the parties to submit proposed findings of fact and conclusions of law.


author: Beasley, Chief Judge.

text:
    A95A1443.
    GRAPHIC ARTS MUTUAL INSURANCE COMPANY v. PRITCHETT et al.
    (469 SE2d 199)
   Beasley, Chief Judge.

Defendant Graphic Arts Mutual Insurance Company appeals from the denial of its motion for summary judgment and the grant of partial summary judgment to plaintiffs Donald and Linda Pritchett. They seek to recover under an insurance policy for the value of property destroyed by fire, interest, and statutory penalties and attorney fees for bad faith refusal to pay the claim.

The application for insurance was executed only by Donald Pritchett, although both plaintiffs were named insureds. Graphic Arts contends the policy was void because Donald made a material misrepreservation on the insurance application. He answered “no” to the question whether he had had any insurance policy canceled within the three years preceding the application when, in fact, he had had three such cancellations, including a policy with Utica Mutual Insurance Company, the corporate parent of Graphic Arts. The insurance agency which sold the Pritchetts the Graphic Arts policy, Dean & Moore Insurance, Inc., had also sold the Pritchetts the Utica policy, although through two different agents.

1. Graphic Arts contends the court erred in ruling it was es-topped from asserting the policy was void because of Donald Pritchett’s misrepresentation about the canceled Utica policy. The court determined Graphic Arts had actual knowledge of the falsity because its agent, Dean & Moore, secured it. The agent must have actual knowledge in order for such knowledge to be imputed to the insurer/principal. Burkholder v. Ford Life Ins. Co., 207 Ga. App. 908, 909 (1) (429 SE2d 344) (1993).

Graphic Arts contends that the only person with actual knowledge of the canceled Utica policy was the former agent of Dean & Moore who in fact took the Utica application. It argues that since the agent had no knowledge of the prior Utica cancellation, knowledge cannot be imputed to Graphic Arts. OCGA § 10-6-58 provides that “[njotice to the agent of any matter connected with his agency shall be notice to the principal.” The “agent,” for purposes of determining whether OCGA § 10-6-58 applies, is Dean & Moore and not merely either of the individuals working for the agency: “[A corporation] cannot escape liability on the ground that the agent who actually performed the forbidden act on behalf of the corporation was entirely innocent, in that such agent lacked knowledge which was possessed by other agents of the corporation, or which is attributable to it as being a part of its documents and records. A company is chargeable with the composite knowledge acquired by its officers and agents acting within the scope of their duties. [Cits.]” Walker v. State, 89 Ga. App. 101, 105 (78 SE2d 545) (1953). See also Gem City Motors v. Minton, 109 Ga. App. 842 (137 SE2d 522) (1964). Dean & Moore’s knowledge is actual, not merely constructive. See Copeland v. Leathers, 206 Ga. 280, 286-287 (2) (56 SE2d 530) (1949), and cases cited therein. Thus Graphic Arts is estopped from declaring the policy void on account of the misrepresentation as it related to the Utica cancellation.

2. The trial court determined that whether the misrepresentations as to the State Farm and Allstate canceled policies could be used by Graphic Arts to void the policy was a jury question. Consequently, it denied Graphic Arts’ motion for summary judgment. Graphic Arts asserts, correctly as to the two unknown cancellations, that it was entitled to rely on Donald Pritchett’s representation in the application that “no” insurance had been declined, canceled or non-renewed in the three years prior to the date of application. Although Graphic Arts relies on OCGA § 33-24-6 (c) to support this position, this Code section applies only to statements involving applications for life or accident and sickness insurance. See, e.g., Fidelity Bankers Life Ins. Co. v. Renew, 121 Ga. App. 883, 884 (2) (176 SE2d 103) (1970). However, OCGA § 33-24-7 (a) provides that statements in applications are “representations” and subsection (b) states the circumstances under which an insurer can avoid the policy for “(m)is-representations, omissions, concealment of facts, and incorrect statements.” (Emphasis supplied.) Thus it is implicit that an insurer is entitled to rely on statements of an applicant as true, without conducting an independent investigation. Of course, it assumes a risk, because recovery on policies issued on such representations is prevented only in the three instances in the statute. The burden on the insurer is to prove one of them.

OCGA § 33-24-7 (b) provides in the part invoked by Graphic Arts: “Misrepresentations . . . shall not prevent a recovery under the policy . . . unless ... (3) The insurer in good faith would . . . not have issued the policy ... if the true facts had been known.” Graphic Arts contends that it is entitled to summary judgment because the uncontroverted evidence shows that it would not have issued the policy to the Pritchetts had it known the true facts regarding the prior cancellations.

The Pritchetts do not dispute that these cancellations occurred in 1990, and according to the affidavit of James Reilly, Underwriting Manager for Utica National Insurance Group, “Under [applicable] underwriting guidelines, Graphic Arts Mutual Insurance Company would not have issued a homeowners policy to an application [sic] who had had a policy or binder, declined, cancelled or non-renewed.” The Pritchetts agree that Reilly testified “that Appellant would not have issued the policy had it known of any one of the previous cancellations.” Their apparent position, that the estoppel related to the Utica policy also estopped Graphic Arts from claiming it would not have issued the policy sued on had it known of either of the other two cancellations, is not sound. It is evident that Graphic Arts was literally unaware that it had canceled the Utica policy, but we have concluded that it knew of it as a matter of law because another agent at the same agency had secured it for the Pritchetts. This conclusion does not controvert Reilly’s statement of fact or raise a triable issue as to whether Graphic Arts in good faith would have issued the instant policy despite knowledge of the State Farm and/or the Allstate cancellations.

As in Burkholder, supra, 207 Ga. App. at 908 (1), the uncontradicted affidavit of the insurer that it would not have issued the policy in question had it known the truth regarding the insured’s condition precludes any genuine issue of fact with respect to whether the insurer in good faith would not have issued the policy. That being the case, Graphic Arts was entitled to summary judgment. See also Worley v. State Farm &c. Ins. Co., 208 Ga. App. 805, 807 (432 SE2d 244) (1993); Bolin v. Mass. Indem. &c. Ins. Co., 203 Ga. App. 570, 572 (2) (417 SE2d 325) (1992); Miller v. Nationwide Ins. Co., 202 Ga. App. 737 (415 SE2d 700) (1992); Davis v. John Hancock &c. Ins. Co., 202 Ga. App. 3, 4-5 (1) (413 SE2d 224) (1991).

3. Graphic Arts submits that the court erred in ruling Linda Pritchett’s claim was unaffected by any of Donald Pritchett’s misrepresentations. We must decide if voiding the policy because of Donald’s misrepresentations relating to the State Farm and Allstate canceled policies voids the policy completely or only as to him.

The trial court ruled that Fireman’s Fund Ins. Co. v. Dean, 212 Ga. App. 262, 263-265 (1) (441 SE2d 436) (1994), was controlling so that, as a matter of statutory construction of OCGA § 33-32-1 (a), which relates to minimum policy language protection for insureds prescribed by the State Insurance Commissioner in the Standard Fire Policy, the policy was not void as to Linda Pritchett since she did not participate in the misrepresentation. In Dean, a panel of this Court was asked to determine whether an insured’s estate should be protected from fire insurance policy language holding it responsible for the misconduct of another insured. The court determined that under Georgia law an insurance policy is void for misrepresentation by “the insured,” and the use of “the insured” in the fraud clause of the Standard Fire Policy must be construed to provide several obligations as to each co-insured. Dean, supra at 265, citing Richards v. Hanover Ins. Co., 250 Ga. 613 (299 SE2d 561) (1983).

Graphic Arts argues that Dean does not apply in this case, since the company relied on no policy language to void the Pritchett policy, but instead on OCGA § 33-24-7 (b) (3). We agree. Dean and related cases deal with whether breach of a condition by one co-insured under an existing policy bars the innocent co-insured from recovery under that policy. In this case, no policy had been issued when Donald made the misrepresentations. Graphic Arts would not have issued the policy as to any of the Pritchetts had it known of the misrepresentations regarding the canceled Allstate and State Farm policies, and Linda is thus barred from recovery as well.

In addition, Donald acted as Linda’s agent in making the misrepresentations; that also bars her recovery. See Vickery Ins. Agency v. Chambers, 215 Ga. App. 48 (449 SE2d 885) (1994). “The principal shall be bound by all the acts of his agent within the scope of his authority.” OCGA § 10-6-51. Where a spousé is permitted to manage and control property or is allowed to deal with it so as to induce others to believe that he is acting as the authorized agent for the other spouse, such facts are sufficient to establish the agency in favor of third persons who deal with the spouse, where the other spouse knows of the situation and makes no objection. Vickery, supra at 50. Aronoff v. Woodard, 47 Ga. App. 725 (5) (171 SE 404) (1933); Brogdon v. Hallman, 119 Ga. App. 464, 465 (2) (167 SE2d 673) (1969). The Dean & Moore agent who took the Pritchett application was entitled to rely on the fact that Donald was acting on his own behalf and as Linda’s agent. Linda cannot now demand recovery where she has ratified all actions of Donald relating to applying for the policy at issue by demanding its benefits.

Decided December 20, 1995

Reconsideration denied March 5, 1996

Drew, Eckl & Farnham, Kenneth A. Hindman, for appellant.

Avrett, Ponder & Withrock, R. Mike Withrock, for appellees.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A1981.
    MOORE v. THE STATE.
    (469 SE2d 211)
   Beasley, Chief Judge.

Moore was found guilty by a jury of two counts of aggravated assault (OCGA § 16-5-21), possession of a firearm during commission of a crime (OCGA § 16-11-106), and interference with government property (OCGA § 16-7-24). After he was sentenced and his motion for new trial was denied, he brought this appeal, enumerating four alleged errors.

The incident occurred shortly after 5:00 a.m. on the morning of February 12, 1994, at the home at which Moore lived with his parents. The night before, he and his girl friend Stephanie went with friends to a nightspot where he drank whiskey and beer and became drunk. He also smoked marijuana and consumed Valium. They left on foot at about 2:30 a.m. and hitched a ride to the house. After arguing with his girl friend and mother, he began to damage the inside of the house with two baseball bats, an ax, a shotgun, a rifle and his fists.

Shooting from the hip with the rifle, he fired one shot towards the ceiling of his parents’ bedroom and one into a wall near the ceiling in the kitchen. During this time his father climbed out a window to summon help from the sheriff, and his mother and Stephanie tried unsuccessfully to stop Moore’s behavior. After the deputy sheriffs arrived, the women left the house separately and obtained shelter behind the deputy sheriffs’ car.

At first the deputy sheriffs tried to talk with Moore in the house, but he appeared to be going for a gun so they left. Four more shots were fired by Moore at the officers outside, some of which struck the two patrol cars, and the officers returned fire until he surrendered. A live round had jammed in the breech of his bolt-action rifle.

In an interview that afternoon, Moore told the officer he did not recall “what made [him] that mad” and that he “shot a cop” to get rid of the officers but was careful not. to endanger “an old lady that lives next door.”

1. Moore requested a jury charge on the defenses of misfortune and accident, but the court refused to give it, prompting the first enumeration of error. The charge, based in part on OCGA § 16-2-2, was properly rejected because there was not even slight evidence to support it. Cf. Facison v. State, 152 Ga. App. 645 (2) (263 SE2d 523) (1979); Koritta v. State, 263 Ga. 703, 704 (438 SE2d 68) (1994). The law is that “unless there [is] evidence to authorize a finding that the . . . shot(s) had been fired without any ‘criminal scheme or undertaking, intention, or criminal negligence’ on the part of the appellant, the trial court correctly refused to give a charge on the defense of accident.” Campbell v. State, 263 Ga. 824, 825 (3) (440 SE2d 5) (1994), citing OCGA § 16-2-2. As the State points out, Moore knew he was firing the high-powered rifle in the direction of his mother, girl friend, and two law enforcement officers. A jury could not find that his actions and manifested intent constituted an accident or simply misfortune. New v. State, 260 Ga. 441 (396 SE2d 486) (1990). See also Stewart v. State, 261 Ga. 654 (409 SE2d 663) (1991); Sumner v. State, 210 Ga. App. 856 (437 SE2d 855) (1993). In Teasley v. State, 228 Ga. 107 (184 SE2d 179) (1971), defendant shot at a locked metal box for the purpose of opening it, whereas Moore shot at the interior of the house and at the people inside.

2. The trial court did not err in calling the court-appointed mental health expert to illuminate for the jury Moore’s mental condition and capacity at the time of the acts charged.

The witness was not called by the State but by the court itself, in accordance with OCGA § 17-7-130.1. Thus his name was not required to be listed by the State in response to Moore’s demand under OCGA § 17-7-110, even after the State received notice (pursuant to Uniform Superior Court Rules 31.4 and 31.1) of intent to raise issues of insanity and mental incompetence. In response to Moore’s demand for scientific reports, the State did furnish a copy of the examining psychologist’s report, even though Moore’s counsel had already been mailed a copy by the expert over two months prior to trial. Counsel knew the week before trial this expert was to be on call.

Moore himself triggered the calling of the expert by the court. By his filing a notice of intent to interpose the defense of insanity, the court was compelled to appoint a psychiatrist or licensed psychologist to examine him “and to testify at the trial.” OCGA § 17-7-130.1. The fact that the court ordered the evaluation prior to the filing of the notice does not require the appointment of another expert, either as a matter of statutory construction or common sense. The statute states that appointment is necessary “when,” not “after,” defendant notifies the State and the court that sanity will be an issue. To require a second evaluation by the same or another expert would make futile the first evaluation, which is not challenged as being non-objective or conducted by an incompetent expert. The court’s early appointment facilitated the proceedings and provided expeditious information to defense counsel as well as to the court and the State, not only with respect to possible defenses but also with respect to competence to stand trial in the first place.

Moreover, the pre-notice appointment was made “by agreement of the parties” and, after raising the defense by notice, Moore never sought the appointment of another expert. Nor did he call one as his witness.

Moore has cited no case in support of his position on this point. On the other hand, Tolbert v. State, 260 Ga. 527, 528 (2) (b) (397 SE2d 439) (1990), and USCR 31.5 support the trial court’s action.

3. Division 2 answers the third enumeration of error, which is that Moore was entitled to have another psychiatrist or licensed psychologist appointed to examine him and testify at trial after he filed notice of an insanity defense. He mistakenly considers the court-appointed clinical psychologist, who was Director of Forensic Services at Northwest Georgia Regional Hospital, as the State’s witness. There is no evidence that the State asked for this particular person to perform the tasks assigned by the court in its order for mental evaluation. Both parties agreed to the order, as stated above, and it named only the Department of Human Resources or Forensic Psychiatry Service, not a specific individual. All evidence of record is that the expert was independent of either party and was impartial. In addition, he was called as a witness by the court after both parties had rested.

The court did not err in failing to appoint a second expert either sua sponte or to meet the requirement of OCGA § 17-7-130.1.

4. When the court called the expert who had examined and evaluated Moore, the court carefully instructed the jury that he would be “the court’s witness.” The court also explained what that meant, that both sides would be permitted to examine both directly and by cross-examination. That is precisely what the statute provides. OCGA § 17-7-130.1.

The inadvertent one-time reference to the expert as “State’s witness” did not constitute reversible error. In the first place, it was not part of the court’s instruction to the jury but was a direction to the bailiff to bring the witness into the courtroom. In the second place, when considered in the context of the immediately preceding instruction and the manner in which witness examination was conducted thereafter, the possibility is nil that the jury considered the witness to be that of the State.

Decided January 22, 1996

Reconsideration denied March 5, 1996

Hill & Henry, Larry B. Hill, W. Ralph Hill, Jr., Christopher A. Townley, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: Blackburn, Judge.

text:
    A95A2862.
    POTTER et al. v. WAL COMPUTERS, INC. et al.
    (469 SE2d 691)
   Blackburn, Judge.

This complex litigation involves the sale of a computer business, Wal Computers, Inc. (Wal). The buyers, James H. Potter and his corporations, Management Matters, Inc. and Beverage Management Solutions, Inc. (referred to collectively as the Potter defendants), appeal the trial court’s orders denying their motions to set aside the judgment and for new trial. The Potter defendants’ motions were based primarily on violations of the Uniform Superior Court Rules (USCR) concerning the withdrawal of their attorney and the scheduling of their trial.

Walter Lee, working for Wal, created and marketed a software program to manage sales, inventory, and other financial matters in the retail liquor industry. Due to financial pressures, Lee sought investors and, ultimately, entered into negotiations with Potter to sell Wal. The negotiations culminated in several separate contracts, including an asset purchase agreement, an escrow agreement, and an employment contract with Lee. Within a short time after the sale, the parties’ relationship deteriorated and this litigation ensued.

On June 3, 1994, Potter’s counsel, G. William Long III, sent Potter a notice of his withdrawal as counsel. Long also notified Potter and his corporations of their obligation to apprise the court of the location where they could be served and to prepare for trial or hire other counsel. Potter objected to Long’s withdrawal and throughout the summer and fall of 1994, Potter and Jeff Muir, an attorney who represented Potter in other matters, negotiated with Long concerning his desire to withdraw.

These negotiations were not successful and, on September 27, 1994, Long formally filed a motion to withdraw. His cover letter to the court stated that the case currently appeared on the October 17 trial calendar and that because he was withdrawing, he understood it would be placed on the December calendar. Long’s letter indicated that the Potter defendants were sent copies of the correspondence as was Muir.

On September 28, 1994, the trial court entered an order allowing Long to withdraw as counsel and the case was then continued until the December calendar. Potter claims he never received notice that Long’s request to withdraw was granted. It is undisputed that Potter never received a copy of the December trial calendar, but he admitted to knowing that his case had been moved from the October calendar until December. On Friday December 9, Potter sent a facsimile to the trial court requesting a continuance due to his inability to secure representation in time for trial scheduled to begin on the following Monday, December 12.

On December 12, before the trial was scheduled to begin and on December 13, after the trial had commenced, the trial court heard argument on Potter’s request for a continuance to obtain counsel. The court denied the request, observing that despite the fact that Potter received notice of Long’s intent to withdraw in June, Potter first requested a continuance only days before trial. Upon hearing evidence, the court granted a directed verdict to Robert Lee, Walter Lee’s father, who had been made a party to a cross-claim filed by Potter and his affiliated corporations. The jury then returned verdicts in favor of Walter Lee and Wal, awarding them collectively over $740,000.

The Potter defendants moved for a new trial asserting that the trial court acted improperly in permitting the withdrawal of Long as counsel and not continuing the trial. The trial court denied the motion, and the Potter defendants then moved to set aside the judgment on the grounds that the trial court violated various provisions of the USCR. The court summarily denied the motion.

1. We reject the Potter defendants’ preliminary contention that any violation of the USCR constitutes reversible error. Under certain circumstances, including the facts of this case, substantial compliance with the USCR is acceptable. See Robinson v. Robinson, 256 Ga. 188 (345 SE2d 597) (1986). The contrary authority relied upon by the appellees, Barrett v. Wharton, 196 Ga. App. 688 (396 SE2d 603) (1990), is inapposite as it turned upon the due process concerns inherent in treating a motion to dismiss as a motion for summary judgment without providing the parties with proper notice. Such constitutional issues are not here involved.

2. The Potter defendants argue that the trial court erred in permitting Long to withdraw because the notice of withdrawal failed to comply with the terms of USCR 4.3 in a number of different respects.

First, the Potter defendants assert that the notice was deficient because it failed to state that they had a right to object to the withdrawal. USCR 4.3 (H) requires withdrawing attorneys to notify their clients that unless requested withdrawal is being made with the client’s consent, the client has a “right to object within 10 days” of the withdrawal. The notice at issue was deficient because it did not inform the clients of their right to object within ten days. However, we find that Long substantially complied with USCR 4.3 and that the error was harmless. The Potter defendants have offered no objection to Long’s withdrawal that would have warranted a different decision by the trial court. OCGA § 9-11-61. Moreover, Muir, an attorney who represented the Potter defendants in other matters, attested that throughout the summer and fall of 1994 he negotiated on numerous occasions with Long about the fee dispute underlying Long’s desire to withdraw. In light of the length and nature of the fee dispute, the Potter defendants cannot claim that they were surprised by Long’s withdrawal. Finally, parties with a case in court have a duty to look after their own interests. Dunn v. Duke, 216 Ga. App. 829, 832 (456 SE2d 65) (1995). Despite the failure to comply with the USCR in connection with Long’s withdrawal, the Potter defendants failed to exercise due diligence in keeping apprised of the progress of their case once they knew Long’s request to withdraw had been filed.

Second, the Potter defendants argue that the trial court erred in denying their motion to set aside the judgment because the notification certificate failed to state their telephone numbers as required by USCR 4.3. This enumeration is meritless as the Potter defendants failed to show any injury caused by this deficiency. Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 385 (6) (277 SE2d 753) (1981).

Third, the Potter defendants argue that the denial of their motion to set aside was error because they received no notice that Long’s request to withdraw had been granted. USCR 4.3 provides that “[a]fter the entry of an order permitting withdrawal, the client shall be notified by the withdrawing attorney of the effective date of the withdrawal.” Previously, we have held that clients who did not receive notice from their attorney that his request to withdraw had been granted by the trial court, must look to the withdrawing attorney for redress. Dunn v. Duke, supra at 831. Moreover, assuming arguendo that the Potter defendants did not receive notice of Long’s withdrawal, “ ‘in order for a defendant to obtain a new trial because of his absence or the absence of his counsel at the trial, it must be shown that the party was without fault.’ ” Id. The Potter defendants have not made that showing.

Finally, with respect to USCR 4.3, the Potter defendants argue that Long’s withdrawal was manifestly unfair and prejudicial. Rule 4.3 provides that a request to withdraw will be granted “unless in the judge’s discretion, to do so would ... be manifestly unfair to the client.” The Potter defendants received ample notice of Long’s intent to withdraw and were provided sufficient time to secure the services of another lawyer. Consequently, we find the trial court acted within its discretion by determining that the withdrawal was not unfair and would not cause the Potter defendants undue prejudice. See Everman v. State, 203 Ga. App. 350, 351 (2) (416 SE2d 861) (1992).

3. The Potter defendants argue that the trial court erred in denying their motion to set aside the judgment because they never received a copy of the trial calendar for the session when their case was tried in violation of USCR 8.3. Rule 8.3 requires that clerks of court distribute trial calendars “not less than 20 days . . . prior to the session of court at which the actions listed thereon are to be tried.” However, a new trial is not warranted by the failure to receive a calendar when parties have actual notice of an upcoming trial and are prejudiced only by their own lack of due diligence. See Abercrombie v. Miller, 191 Ga. App. 858, 859 (383 SE2d 358) (1989); see also Glennco, Inc. v. Silver Shoes, Inc., 164 Ga. App. 30, 31 (295 SE2d 357) (1982); cf. Taylor v. Chester, 207 Ga. App. 217, 219 (427 SE2d 582) (1993) (no actual notice); Ga. Hwy. Express v. Whaley, 166 Ga. App. 662 (305 SE2d 411) (1983) (no evidence of actual notice).

The record shows that in September 1994 the Potter defendants had actual notice that their case was on the December trial calendar. Exact notice of the specific trial date is not required. Redding v. Raines, 239 Ga. 865, 866 (239 SE2d 32) (1977). The Potter defendants received further notice of their appearance on the December trial calendar on November 21, 1994, when counsel representing their opponents sent notice of his withdrawal. In light of the Potter defendants’ actual notice that their case was scheduled to be heard in December, the trial court committed no error in refusing to continue the trial due to the clerk’s failure to comply with USCR 8.3.

4. The Potter defendants argue that the trial court abused its discretion in denying their motion for continuance to obtain counsel and secure the attendance of material witnesses. The record reflects that Potter may have discussed this matter with opposing counsel; however, he never requested a continuance from the trial court so that he could secure the attendance of missing witnesses. Issues not raised before and decided upon by the trial court cannot be raised on appeal. Tyler v. Bennett, 215 Ga. App. 87, 88 (449 SE2d 666) (1994).

5. The Potter defendants argue that the trial court erred in granting a directed verdict for Robert Lee. The fraud cross-claim filed by Beverage Management Solutions, Inc. against Robert Lee asserted that he made various misrepresentations that induced the sale. In particular, Beverage Management Solutions, Inc. claimed that, as part of the purchase price for Wal, it agreed to satisfy a debt that Wal supposedly owed Robert Lee when in fact no such debt existed or said debt was much smaller than Robert Lee had represented.

Decided February 9, 1996

Reconsideration denied March 5, 1996

Ruffin & Dell, Charles L. Ruffin, J. V. Dell, Jr., for appellants.

Chambless, Higdon & Carson, Marc T. Treadwell, Christopher D. Balch, Sell & Melton, Jeffrey B. Hanson, for appellees.

“A directed verdict is authorized only when ‘there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.’ OCGA § 9-11-50 (a).” Carden v. Burckhalter, 214 Ga. App. 487, 488 (448 SE2d 251) (1994). Robert Lee testified that Wal owed him the amount outlined in the purchase agreements and that he played no role in the sales negotiations or in the due diligence investigation performed by the purchasers prior to the sale. The contrary assertions of the Potter defendants are not supported in the record. The trial court did not err in granting a directed verdict to Robert Lee.

6. The Potter defendants argue that the trial court erred in denying their motion for a new trial in that the jury’s verdicts were strongly against the weight of the evidence. However, after the jury returns a verdict and the trial judge approves it, “ ‘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.’ ” Bldg. Materials Wholesale v. Reeves, 209 Ga. App. 361, 364 (2) (433 SE2d 346) (1993). A review of the lengthy record, replete with a seven-volume trial transcript, reflects that the jury’s verdicts are supported by evidence and this enumeration of error is thus without merit.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       Wal Computers was formerly known as Computer Source, Inc.

       The Potter defendants argue that evidence was introduced that a promissory note Wal had signed in the fall of 1991 was “intentionally and maliciously backdated to June 1, 1989” so as to inflate the sums Wal owed Robert Lee. However, the Potter defendants have provided no reference as to where this backdated note may be located in the lengthy record, replete with a seven-volume trial transcript. “ ‘It is not the function of this court to cull the record on behalf of a party in search of instances of error.’ ” Asbury v. Ga. World Congress Center, 212 Ga. App. 628, 632 (442 SE2d 822) (1994).