text:
    A97A0906, A97A0907.
    T & R CUSTOM, INC. v. LIBERTY MUTUAL INSURANCE COMPANY; and vice versa.
    (488 SE2d 705)
   Johnson, Judge.

Liberty Mutual Insurance Company filed suit against T & R Custom, Inc. to recover $62,921 in insurance premiums for-workers’ compensation insurance coverage provided by Liberty from March 1, 1988 through March 1,1990. T & R answered the complaint contending that all of the premiums had been paid to Venture Insurance Brokers, Inc., which T & R claimed acted as Liberty’s agent. T & R also asserted a counterclaim alleging that Liberty had tortiously issued inaccurate bills for premiums which had been calculated “using a wrongful, illegal and fraudulent method” and that monies paid to Venture which were subsequently converted constituted a tort attributable to Liberty as Venture’s principal. The trial court granted a motion for partial summary judgment filed by Liberty, concluding as a matter of law that Venture and/or its owner Bob Conway were agents of T & R rather than Liberty and dismissing T & R’s counterclaim. The case was tried to a jury which returned a verdict in favor of Liberty in the amount of $43,921. In Case No. A97A0906, T & R appeals from the trial court’s grant of partial summary judgment to Liberty. In Case No. A97A0907, Liberty appeals from the judgment entered on the jury’s verdict.

Case No. A97A0906

1. T & R asserts that a genuine issue of material fact exists regarding whether Venture was Liberty’s agent for the purpose of collecting insurance premiums from T & R. “Independent agents or brokers are generally considered the agent of the insured, not the insurer. [Cit.]" Kirby v. Northwestern Nat. Cas. Co., 213 Ga. App. 673, 678 (2) (445 SE2d 791) (1994). It is clear from the facts of this case that Venture was T & R’s agent for the purpose of procuring coverage. Relying on Nat. Property Owners Ins. Co. v. Wells, 166 Ga. App. 281, 282 (2) (304 SE2d 458) (1983), T & R argues that Venture also acted as Liberty’s agent for the purpose of collecting premiums and therefore at least acted in a dual capacity, as an agent for both the insurer and the insured. The lion’s share of the evidence upon which T & R relies in support of this argument on appeal was produced at trial, however, rather than in response to Liberty’s motion for partial summary judgment. “We consider only the evidence before the court at the time of its ruling on the motion for summary judgment. Any evidence [T & R] may have produced at trial in the course of establishing [its] case ... is not part of our review, as [it] was bound to produce it in response to the motion for partial summary judgment. Appellate courts will review only evidence presented to the trial court before its ruling on the motion.” (Citations and punctuation omitted.) Avery v. Chrysler Motors Corp., 214 Ga. App. 602, 605 (1) (448 SE2d 737) (1994).

In support of its motion for partial summary judgment, Liberty relied on the pleadings and admissions of record, as well as the affidavit of Debora Knott, District Audit Manager for Liberty, and the depositions of Jimmie Sue Robinson, T & R’s corporate secretary and office manager, and Conway. Knott’s affidavit establishes that neither Conway nor Venture was the agent of Liberty for any purposes whatsoever. In Robinson’s deposition, she stated “[Conway] was our agent; he said he was representing us, taking care of us, and we believed that.” With respect to the collection of premiums, Knott stated that Liberty does not use independent agents to collect premiums on its behalf and never asked Conway or Venture to do so. In his deposition, Conway testified that T & R asked him to collect all of its insurance premiums and forward them to the various companies as a convenience. He agreed that Liberty never authorized him or Venture to> collect premiums on its behalf.

The only evidence submitted in response to Liberty’s motion for partial summary judgment was the deposition of Conway in which he characterized himself as a dual agent. Where there is no evidence, however, that a principal authorized someone to act as its agent, agency cannot be proven by declarations of the alleged agent. Oglesby v. Farmers Mut. Exchange, 128 Ga. App. 387, 389 (6) (196 SE2d 674) (1973).

“The denials of the purported parties of an agency relationship may not be disregarded by the trial court and are sufficient to support a motion for summary judgment. [T & R’s] pleadings having been pierced, the burden of establishing the fact of agency fell upon [it], and [it] failed to carry that burden. Therefore, summary judgment in favor of [Liberty] was appropriate. [Cit.]” Bush v. Vanguard Ins. Co., 172 Ga. App. 704, 706 (324 SE2d 554) (1984).

2. In a second enumeration of error, T & R asserts that the trial court erred in dismissing the counterclaim in its entirety because certain portions of the counterclaim were not dependent on the existence of an agency relationship. T & R argues that its counterclaim against Liberty was not entirely premised on Venture’s tortious conduct, specifically pointing out that portion of the counterclaim in which it was alleged that Liberty had billed for premiums based on a wrongful, illegal, and fraudulent method of calculation. Once a movant for summary judgment points to an absence of evidence to support at least one essential element of the non-movant’s case, the non-movant cannot rest on the pleadings, but is required to come forward and point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In response to Liberty’s motion for partial summary judgment, T & R did not come forward with any specific evidence in support of its claim that Liberty wrongfully, illegally, or fraudulently calculated its premiums. Liberty was entitled to summary judgment on this portion of the counterclaim. See Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 393 (2) (469 SE2d 469) (1996).

Case No. A97A0907

3. In Case No. A97A0907, Liberty first contends there was no evidence to support the jury’s decision to reduce the judgment in its favor from $62,921 to $43,921. On appellate review, in the absence of a material legal error, a jury’s verdict and the judgment entered thereon will not be disturbed if there is any evidence to support them. Horan v. Pirkle, 197 Ga. App. 151, 153 (397 SE2d 734) (1990). Viewed in this light, the evidence showed that there was a dispute over the amount owed on certain additional endorsements totaling $19,679. Jimmie Sue Robinson, T & R’s office manager, gave conflicting testimony regarding two monthly premium increases which reflected additional endorsements. The confusion appears to have arisen as a result of the effective dates of the new coverage. Robinson testified that there had been an overcharge of the premiums because the increases had been paid one month too early resulting in an overcharge of some $19,000. She also testified, however, that the correct number of premiums had been charged. Although Liberty’s representative explained the relationship between effective dates and the due dates of the increased premiums, there was at least some evidence supporting the jury’s verdict. Therefore, we will not disturb it. See also Professional Consulting Svcs. &c. v. Ibrahim, 206 Ga. App. 663, 665 (1) (426 SE2d 376) (1992).

4. Finally, Liberty asserts the jury erred in failing to award Liberty prejudgment interest. In paragraph 20 of the pretrial order, the parties agreed to submit the issue of prejudgment interest to the jury. The trial judge charged the jury that they were authorized to award prejudgment interest in the amount of one and one-half percent per month from the date the premium came due. No exception was taken to this charge. The jury, on a specially drafted verdict form; found in favor of Liberty in the principal amount of $43,921 and indicated specifically that it did not find in favor of Liberty for prejudgment interest. Neither party objected to the form of the verdict after it was returned. By failing to object, Liberty acquiesced in the submission of the issue of prejudgment interest to the jury. See Outdoor Systems v. Woodson, 221 Ga. App. 901, 902 (2) (a) (473 SE2d 204) (1996). Where a party agrees to the manner in which his rights shall be submitted for determination, he will not be permitted to complain on appeal. Le Twigge, Ltd. v. Wammock & Co., 187 Ga. App. 446, 448 (370 SE2d 631) (1988). Because the amount claimed by Liberty was in dispute, OCGA § 7-4-15 does not apply. And while OCGA § 13-6-13 authorizes a separate award of prejudgment interest, it does not require such an award. As in Bishop Contracting Co. v. North Ga. Equip. Co., 203 Ga. App. 655, 656-657 (1) (417 SE2d 400) (1992), the trial judge correctly charged the jury on the issue of prejudgment interest and entered judgment based on the jury’s findings. We see no error.

Decided July 3, 1997.

Byrd, Anthony & Davis, Garland T. Byrd; Lovick P. Anthony, Jr., Alston & Bird, Gerald L. Mize, Jr., Douglas A. S. Chalmers, Jr., for appellant.

Arnall, Golden & Gregory, James P. Smith, Ronald C. Thomason, for appellee.

Judgments affirmed.

Pope, P. J., and Blackburn, J., concur.

       The parties stipulated that T & R retained Venture, a company solely owned by Bob Conway, to obtain coverage through the National Counsel on Compensation Insurance. T & R’s application was randomly assigned to Liberty as part of Georgia’s Assigned Risk Pool. Except for a dispute over $19,679 allegedly owed for two disputed endorsements, T & R agrees that there is no dispute about the amount of premiums earned by Liberty during the coverage period. T & R asserts, however, that the monies were paid to Venture. Venture filed bankruptcy in July 1993. Conway was indicted on 35 counts of theft by deception and pled guilty to three of those counts. He was ordered to pay $83,273 in restitution.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A97A0936.
    WILLIAMS v. THE STATE.
    (488 SE2d 708)
   Johnson, Judge.

A jury found Melvin Williams guilty of burglary. He appeals from the conviction entered on the verdict and the denial of his motion for new trial.

1. Williams claims that the evidence was insufficient to support the verdict. Specifically, he argues that the state failed to disprove his affirmative defense that he “acted under an honest ‘claim of right’ to the property” taken from the residence.

The evidence was sufficient to support the verdict. On appeal, the presumption of innocence no. longer prevails. This Court views the evidence in the light most favorable to the verdict and does not speculate which evidence the jury chose to believe or disbelieve. Gurlaskie v. State, 196 Ga. App. 794 (1) (397 SE2d 66) (1990). At trial, the victim testified that he returned home one evening and found Williams coming out of the bedroom. The victim fought with Williams and injured and detained him until police arrived. Police discovered the window and handle on the rear door were broken and found exercise bikes, weights, and radios belonging to the victim in or near Williams’ car. The victim testified that he had not given Williams permission to enter his house or to remove any property. Williams testified that he entered the house because the victim’s neighbor, Ronald Washington, told him he could purchase some weights there. Washington testified he did not tell Williams that anyone was selling weights. The credibility of the witnesses’ testimony is determined by the jury, and they, being the exclusive judges of witness credibility, may accept whatever evidence they deem most reasonable and credible. See Upshaw v. State, 221 Ga. App. 655, 656 (472 SE2d 484) (1996). The evidence was sufficient for any rational trier of fact to find Williams guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Black v. State, 222 Ga. App. 80 (473 SE2d 186) (1996). Moreover, assuming he presented a “claim of right” defense, this evidence was sufficient to disprove such a defense beyond a reasonable doubt.

2. Williams argues the trial court erred in not charging the jury on his sole defense of claim of right. In his brief, he says his sole defense was that he believed he had a right to enter the premises and remove the property because he had purchased the property. “A requested charge . . . must be legal, apt and precisely adjusted to some principle involved in the case and be authorized by the evidence.” (Citation, punctuation and emphasis omitted.) Minor v. State, 264 Ga. 195, 197 (3) (442 SE2d 754) (1994). Even regarding a sole defense, a charge is not mandated without some evidence to support it. See Hayes v. State, 193 Ga. App. 33, 37 (8) (387 SE2d 139) (1989). In this case, there was no evidence that Williams purchased the weights or had permission to remove any of the other property found in or near his car. Thus, the charge was not authorized by the evidence. The court instructed the jury on the elements of burglary, criminal intent, circumstantial evidence, credibility of witnesses, burden of proof, and mistake of fact. We find no error.

Judgment affirmed.

Pope, P. J, and Senior Appellate Judge Harold R. Banke concur.

Decided July 3, 1997.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Lori L. Canfield, Assistant District Attorney, for appellee.


text:
    A97A0786.
    WALKER v. MELTON et al.
    (489 SE2d 63)
   Johnson, Judge.

In this medical malpractice action, the trial court granted summary judgment to defendants W. C. Melton, M.D. and Radiology & Medical Imagery of Newnan, Inc. based on the statute of limitation. Plaintiff Stanley Walker appeals. Because we find the facts in this case present a situation substantially the same as those present in Zechmann v. Thigpen, 210 Ga. App. 726, 728-729 (3) (437 SE2d 475) (1993); Staples v. Bhatti, 220 Ga. App. 404, 405-406 (1) (469 SE2d 490) (1996); and Whitaker v. Zirkle, 188 Ga. App. 706, 708 (1) (374 SE2d 106) (1988), we agree with Walker that summary judgment was not authorized, and reverse.

Summary judgment should be granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Our review of a grant of summary judgment is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996).

Viewed in this light, the evidence shows Walker was injured in a car accident on May 12, 1992. He was taken to a hospital emergency room, where x-rays were taken of his spine. The x-rays were read the same day by Melton, a radiologist employed by Radiology & Medical Imagery. Though the x-rays showed Walker had sustained a 35 percent compression fracture of a vertebra, Melton failed to recognize any fracture. As a result, Walker received no treatment for his broken back.

Walker continued to experience back pain for approximately two months. During this time, he received treatment appropriate for a back strain from Dr. Kevin Greenwell, his primary care physician. Following this treatment, his back pain ceased in late July 1992, and did not recur until approximately December 1993, prompting him to seek further treatment from Dr. Greenwell in January 1994.

Walker’s doctor then took x-rays that revealed the fracture damage to the vertebra, which by that time had worsened to 66 percent compression. He also diagnosed a failure of a ligament in Walker’s back, occurring in December 1993, which he attributed to its having been placed under constant strain since May 1992 by the collapse of the vertebra. Walker’s doctor opined that Walker should not have realized his vertebra had been fractured until January 1994. Walker filed the instant action on May 2, 1995.

1. OCGA § 9-3-71 (a) provides that “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” Walker claims the trial court erred in granting summary judgment to the defendants because the statute of limitation began to run not on May 12, 1992, when Melton misread the x-rays, but in January 1994, when his doctor told him his vertebra was fractured.

(a) We note initially that Walker could have filed suit after the January 1994 diagnosis but before May 12, 1994, and thereby eliminated any issue regarding the statute of limitation. He did not, however, so we must decide whether he was required to do so. For reasons explained below, we hold he was not.

(b) The limitation period set forth in OCGA § 9-3-71 (a) runs from the date of injury. In most misdiagnosis cases, “the injury begins immediately upon the misdiagnosis due to the pain, suffering or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated. The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis. . . . Surgery Assoc., P.C. v. Kearby, 199 Ga. App. 716, 717 (405 SE2d 723) (1991). This is not always the case. Whitaker v. Zirkle, 188 Ga. App. 706, 708 (1) (374 SE2d 106) (1988).” (Punctuation omitted.) Zechmann, supra, 210 Ga. App. at 728-729 (3). In the case before us, as in Zechmann, Whitaker, and Staples, supra, the injuries sued for arose after the date of the misdiagnosis that caused them. Consideration of the particular injuries for which Walker seeks compensation will make this clear.

Walker does not allege Melton’s misdiagnosis caused his broken back. “[Plaintiff’s evidence shows that [he] had it all along or at least during the time of the ministrations by [defendant].” Zechmann, supra. Indeed, Walker concedes that even with proper diagnosis and treatment, his compression fracture would have deteriorated from the 35 percent level shown on the May 12, 1992 x-rays to 50 percent, but no further. Walker’s medical expert opined that his spinal ligament failure and spine destabilization could probably have been prevented, however, with only 50 percent compression. The injuries which form the gravamen of Walker’s complaint are the worsened compression of his vertebra from 50 to 66 percent, the failure of his spinal ligament, and the destabilization of his spine.

Construed in Walker’s favor, the evidence shows these injuries occurred between July 1992 and January 1994, but the evidence does not show a precise date when they occurred. Their first manifestation was the back pain Walker suffered in December 1993. When a misdiagnosis results in subsequent injury that is difficult or impossible to date precisely, the statute of limitation runs from the date symptoms attributable to the new injury are manifest to the plaintiff. See Zechmann, supra at 729; see generally Staples, supra at 405-406 (1). See also Whitaker, supra, 188 Ga. App. at 708 (1): “When an injury occurs subsequent to the date of medical treatment, the statute of limitation commences from the date the injury is discovered.”

Because the statute of limitation is an affirmative defense, OCGA § 9-11-8 (c), the burden was on the defendants to show its applicability. See generally Glenridge &c. Assn. v. Felton, 183 Ga. App. 858, 861 (6) (360 SE2d 418) (1987), and Jones v. Littlejohn, 222 Ga. App. 494, 496-497 (2) (474 SE2d 714) (1996). The defendants have not shown Walker had any manifestations of the new injuries until December 1993, and suit was filed less than two years afterward. Therefore, summary judgment on statute of limitation grounds was inappropriate and unauthorized by law.

Defendants urge us to hold the statute of limitation commenced to run in May 1992, which was before the injuries sued for existed. If we were to adopt a rule allowing such a result, we would run afoul of the Supreme Court of Georgia’s landmark decisions in Shessel v. Stroup, 253 Ga. 56, 58-60 (316 SE2d 155) (1984), and Clark v. Singer, 250 Ga. 470, 472 (298 SE2d 484) (1983). These cases struck down Georgia’s previous medical malpractice statutes of limitation on equal protection grounds because they began to run when the negligent act occurred, even though no cause of action exists until there is injury. The former statutes therefore barred some, but not all, medical malpractice actions before a cause of action even arose. The rule urged by defendants here would lead to the same unconstitutional result.

2. The trial court entered no explicit ruling on Walker’s motion for partial summary judgment as to liability, and Walker enumerates the failure to grant this motion as error. Walker presents no argument or authority on this issue in his brief, however. The issue has therefore been abandoned. See Court of Appeals Rule 27 (c) (2); see Schneider v. Tri Star Intl., 223 Ga. App. 85, 87 (3) (476 SE2d 846) (1996).

Judgment reversed.

Pope, P. J., and Blackburn, J., concur.

Decided July 8, 1997

Cabaniss & Adkins, George M. Cabaniss, Jr., for appellant.

Drew, Eckl & Farnham, James M. Poe, for appellees.

        Whitaker has been questioned. See Bryant v. Crider, 209 Ga. App. 623, 625 (3) (434 SE2d 161) (1993), and Ford v. Dove, 218 Ga. App. 828, 830-831 (3) (463 SE2d 351) (1995). It has not been overruled, however, and is binding precedent. See Vitner v. Miller, 208 Ga. App. 306, 308 (430 SE2d 671) (1993) (Pope, J., concurring specially).


text:
    A97A0811.
    ARNOLD v. ARNOLD.
    (489 SE2d 65)
   Johnson, Judge.

In contemplation of their pending divorce, Robert Arnold and Annette Arnold executed two contracts. One of the documents, entitled “Contract of Settlement,” provided for the distribution of the couple’s real and personal property. According to the terms of this agreement (hereinafter “settlement agreement”), Mr. Arnold would convey his one-half interest in the real estate to Mrs. Arnold and she would assume responsibility for the mortgage and utility payments on the property. The settlement agreement also provided that Mr. Arnold released Mrs. Arnold from any and all claims he might have or might have had against her arising out of the relationship, and vice versa.

The second agreement, signed the same day, was termed “Contract” and contained more specific terms regarding the real estate. This contract (hereinafter “real property contract”) provided that Mr. Arnold would convey his one-half interest in the real estate to Mrs. Arnold, and that she would make the mortgage and utility payments on the property. Additionally, it required Mrs. Arnold to maintain the property and place the real estate on the market as soon as practicable. Upon the sale of the property, Mrs. Arnold would give Mr. Arnold one-half of the proceeds. The real property contract also included provisions allowing credit for repairs and setting limits on the parties’ shares of the proceeds. The contract specifically referred to the pending divorce proceeding and provided that the real property contract shall have “the same force and effect as any agreement made the judgment and Final Decree and Order of said Court [in the divorce action],” and that “both parties will fully abide by the terms of the [real property contract].”

A month after these contracts were executed, the court in the divorce action entered its “Total Divorce Judgment and Decree,” which incorporated only the settlement agreement executed by the parties. The decree did not refer to the real property contract.

Nearly two years later, Mr. Arnold sued Mrs. Arnold for breach of contract and in equity, alleging that she failed to effectuate the sale of and failed to maintain the real property as agreed in the real property contract. He also alleged that Mrs. Arnold expressed the fact that she had no intention of paying him as agreed. At trial, Mrs. Arnold moved for directed verdict, claiming she was not bound by the provision in the real property contract because the terms of that contract were not incorporated into the subsequent divorce decree. The trial court denied the motion. The jury returned a verdict for Mr. Arnold for $15,434. Mrs. Arnold made motions for judgment n.o.v. and for new trial, which the trial court denied. Mrs. Arnold appeals.

The standard used to review the denial of a motion for directed verdict or judgment n.o.v. is the “any evidence” test. See Beasley v. Paul, 223 Ga. App. 706, 707 (2) (478 SE2d 899) (1996). The standard of reviewing the denial of a motion for new trial is whether the verdict is contrary to or strongly against the weight of the evidence. Id. at 707 (1). For the following reasons, we find no error in the denial of these motions.

1. We disagree with Mrs. Arnold’s contention that because the real property contract was not incorporated into the final divorce decree, the former was not binding. The real property contract sued upon was a separate, written agreement which involved a subject matter not completely covered by the separation agreement and which specifically provided that it would have the same force and effect as the order entered in the divorce action.

We are aware that “[n]egotiations and oral agreements between husband and wife, preceding divorce, as to alimony and child support, are, by presumption of law, merged in the final judgment in the divorce suit [and that] [understandings between the husband and wife which are not incorporated into the divorce decree are not binding.” (Citations omitted.) Cabaniss v. Cabaniss, 251 Ga. 177, 179 (4) (304 SE2d 65) (1983). That is not to say, however, that the real property contract at issue in this case necessarily merged into the final decree or is otherwise not binding.

The instant case involves a written rather than an oral agreement. Thus, there was more than just an oral agreement or an “understanding.” Compare Estes v. Estes, 192 Ga. 100 (14 SE2d 680) (1941), where the ex-husband sought to modify or alter the terms of the settlement agreement based on the parties’ alleged “understanding” that his support obligation would terminate upon the occurrence of certain events.

Moreover, prior agreements are only presumed to merge into the final judgment. Here, there was evidence rebutting that presumption. In general, whether the doctrine of merger applies depends upon the intention of the parties. See generally Toys ‘R’ Us v. Atlanta Economic Dev. Corp., 195 Ga. App. 195, 198 (2) (A) (393 SE2d 44) (1990). The attorney representing Mr. Arnold in the divorce proceeding testified that Mrs. Arnold, acting pro se, requested that the real property contract be drawn up separately. Mrs. Arnold told Mr. Arnold’s attorney that she did not want to include the provisions regarding Mr. Arnold’s entitlement to one-half of the sale proceeds in the settlement agreement because she wanted Mr. Arnold, who had a limited income and no place to live, to be able to qualify for government-subsidized housing. Mrs. Arnold told the attorney that she was concerned that if Mr. Arnold’s right to the proceeds was reflected in court records, he would have difficulty qualifying for subsidized housing. The attorney added that both parties intended for Mrs. Arnold to sell the house and share the proceeds with Mr. Arnold. We point out that in this case we are not asked to, nor do we find it necessary to, address the ethical or legal issues involved in the parties’ apparent efforts to hide assets in order to qualify for public assistance. The reason the testimony is important in this case is that it is indicative of the parties’ intent to enter into two separate, binding agreements. Further evidence of their intent to have two separate, enforceable contracts is found on the face of the real property contract, which states that the real property contract will be of the same force and effect as the divorce decree. The jury could have found from the evidence that both parties intended the real property contract to be a separate contract which could be enforced independently as a contract, and that they did not intend in signing the settlement agreement to release each other from any claims arising out of this separate real property contract.

The rule that an existing contract may be superseded and discharged by a valid and inconsistent agreement completely covering the subject matter embraced by the original contract does not require a contrary result. See generally City of Buford v. Intl. Systems, 158 Ga. App. 682, 684 (282 SE2d 165) (1981). The settlement agreement incorporated into the decree in this case was entirely consistent with the real property contract and did not completely cover the same subject matter. The fact that the two contracts here did not completely cover the same subject matter distinguishes the instant case from Pannell v. Pannell, 162 Ga. App. 96 (290 SE2d 184) (1982), where an ex-wife sued to enforce a separation agreement which had been incorporated into a final divorce decree. We also note that Pannell primarily involves a personal jurisdiction issue, and the court’s holding on the merger issue is not explained. The trial court did not err in denying Mrs. Arnold’s motions under either the “any evidence” or the “strongly against the weight of the evidence” standards.

2. Mrs. Arnold did not assert in her responsive pleadings below the arguments raised on appeal that Mr. Arnold’s action was barred by the doctrines of res judicata and estoppel by judgment. In failing to timely assert these affirmative defenses, she has waived them. See Northgate Village Apts. v. Smith, 207 Ga. App. 479, 481 (3) (428 SE2d 381) (1993); see generally Glen Oak v. Henderson, 258 Ga. 455, 458 (2) (a) (369 SE2d 736) (1988).

Decided July 8, 1997.

R. Lars Anderson, for appellant.

Westmoreland, Patterson & Moseley, Bradley G. Pyles, Earl T. Shaffer, Jr., for appellee.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


author: Judge Harold R. Banke.

text:
    A97A1065.
    SINGLETERRY v. THE STATE.
    (489 SE2d 42)
   Judge Harold R. Banke.

Dana Singleterry was convicted of driving with an unlawful alcohol concentration. He enumerates three errors on appeal.

This case arose after Singleterry sped past a law enforcement officer running radar in the early morning hours. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). Once Singleterry’s Jeep stopped, the officer noticed the smell of alcohol and Singleterry’s glassy eyes and asked if he had been drinking. Singleterry answered in the negative. When the two men walked over to the patrol car to examine the radar screen, the officer again noticed the smell of alcohol and asked Singleterry to take some field sobriety tests. When Singleterry declined, the officer arrested him for driving while intoxicated and read him the implied consent warning.

Although Singleterry initially refused to undergo a blood test, ultimately he agreed to a breath test.. He was taken to the police department where he registered a .150 on the Intoximeter 5000. Held:

1. We reject Singleterry’s contention that his arrest was unsupported by probable cause. “ ‘The same strictness of proof required for a finding of guilt is not necessary for probable cause. (Cit.)’ ” Campbell v. State, 221 Ga. App. 105, 107 (2) (470 SE2d 503) (1996). The record shows that before the arrest the officer observed Singleterry speeding and swerving within his lane and noticed the smell of alcohol, his glassy, watery eyes, and slowness in exiting his car. While this evidence, without more, may be inadequate to support a conviction, it was sufficient to establish probable cause to arrest. See Lee v. State, 222 Ga. App. 389, 391 (474 SE2d 281) (1996); Martin v. State, 214 Ga. App. 614, 616 (1) (448 SE2d 471) (1994). Singleterry’s reliance on such cases as Clay v. State, 193 Ga. App. 377, 378 (2) (387 SE2d 644) (1989), and Mulling v. State, 156 Ga. App. 404 (1) (274 SE2d 770) (1980), which address sufficiency of the evidence required to convict, is misplaced.

Decided June 19, 1997

Reconsideration denied July 9, 1997

William C. Head, for appellant.

Ralph T. Bowden, Jr., Solicitor, Michael D. Johnson, W. Cliff Howard, Assistant Solicitors, for appellee.

2. Singleterry maintains that the State’s use of a breath testing device inspection certificate, authorized under OCGA § 40-6-392 (f), violated his right to confrontation. The Supreme Court recently rejected this argument in Brown v. State, 268 Ga. 76 (485 SE2d 486) (1997), holding that the certificate was admissible as a business record.

3. We reject Singleterry’s contention.that the arresting officer’s failure to initiate administrative license suspension proceedings rendered the implied consent warning he imparted so misleading and coercive as to make the results of the State administered breath test inadmissible. Singleterry maintains that the implied consent warning’s validity was contingent on the filing of a DPS 1205 or 1205-S form.

The implied consent warning was not rendered defective or misleading by the arresting officer’s failure to file a DPS 1205 form immediately after Singleterry’s arrest. Nothing in the implied consent statute authorizes the relief Singleterry seeks. OCGA § 40-5-67.1 (f) (1). It does not contain an exclusionary rule. On the contrary, it contemplates situations where an officer might fail to give notice or timely transmit the DPS form. OCGA § 40-5-67.1 (f) (1) and (2). Further, nothing in the warning Singleterry received promised the immediate filing of these forms. In the absence of any legal authority allowing the relief Singleterry seeks, we decline to adopt his interpretation of the law or to find the warning misleading or defective. See Howard v. State, 219 Ga. App. 228, 230 (2) (465 SE2d 281) (1995).

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


text:
    A97A0987.
    BUMGARNER et al. v. GREEN et al.
    (489 SE2d 43)
   Judge Harold R. Banke.

Norman B. Green, a special limited partner of Wauka Mountain, Limited (“Wauka”), sued Wauka, the other two limited partners, W. S. Bumgarner III and Douglas Bruce, and the sole general partner, Senson, Inc., a Georgia corporation. Following a jury verdict in Green’s favor, Bumgarner, Bruce, and Senson, Inc. appeal.

In the summer of 1987, Green approached Douglas Bruce regarding possible residential development of about 104 acres of Green family property in Hall County. Green and his two brothers each owned an undivided one-third interest in the property, and Green proposed that he, Bruce, and W. S. Bumgarner form a partnership to subdivide and sell the property minus the family farmhouse and a few acres to be retained by Green. On January 13, 1988, using funds primarily borrowed from personal lines of credit, Bumgarner and Bruce purchased the interests of Cam and Sherman Green, paying each $100,000. Bumgarner and Bruce then conveyed the family farmhouse and two acres to Green in fee simple.

On that same day, Bumgarner, Green, and Bruce created Wauka as a Georgia limited partnership. Bumgarner and Bruce executed deeds conveying the balance of the property into the limited partnership for development and sale. Under the Wauka partnership agreement, Bumgarner and Bruce were denoted as limited partners and the sole general partner was Senson, Inc. Green, as “special limited partner,” was not required to fund any of the development costs of the property and was relieved of any obligation to contribute funds to the partnership. Green conveyed his undivided one-third interest to Wauka, and Bumgarner and Bruce contributed $100,000 each as their initial investment. According to the partnership agreement, Green, Bumgarner, and Bruce had an approximate 33V3 percent interest in the real property.

Paul Kesmodel, the closing attorney who drafted the agreement, testified that everyone had an opportunity to read the document before signing it. Kesmodel, who represented Bumgarner and Bruce, explained that he specifically inserted language in the document to enable Bumgarner and Bruce to recoup their cash investment and all other expenses. Kesmodel testified that during the closing he went through the agreement, explaining and summarizing the salient provisions. Green admitted that he signed the Wauka partnership agreement without bothering to obtain counsel and without reading most of the document.

About two months after Wauka’s formation, Senson, Inc., through its president, Bumgarner, borrowed $342,000 from Brand Banking Company (“Brand”). Wauka, through its general partner, Senson, Inc., executed two deeds to secure debt and a promissory note in favor of Brand, encumbering the property. In addition to requiring a security deed, Brand had Bumgarner individually and personally guarantee the debt. After receipt of the $342,000, Bum-garner reimbursed himself, individually, and Bruce, individually, for their $200,000 initial investment plus interest.

Lot sales progressed exceedingly slowly. From 1988 through 1995, Wauka’s total net profits from land sales were $119,668. For the same period, Wauka’s interest payments to Brand totaled in excess of $192,000. In the spring of 1993, Brand’s president began making demands for payment. Shortly thereafter, Green became disillusioned with the partnership, especially when he discovered that the partnership had mortgaged the property in order to obtain the substantial loan with Brand. In July 1993, Wauka sold 37 acres to Green’s son, Dean Green, and used the funds to partially reduce Wauka’s indebtedness to Brand.

In January 1995, Green sued Bumgarner, Bruce, and Senson, Inc., alleging inter alia, breach of duty of good faith, fraud, mental distress, and conversion. Green alleged that Bumgarner and Bruce breached their fiduciary duties to him by borrowing money against the property and recouping their acquisition costs for the property. Green also brought a statutory claim for the return of his contribution to the partnership. Prior to trial, Green dismissed Wauka as a defendant.

The trial court determined that because the Wauka partnership agreement was ambiguous as to whether the agreement authorized Bumgarner and Bruce to be reimbursed for their $200,000 initial investment, a jury needed to resolve the matter. Similarly, the issues of Green’s claim for return of his contribution, breach of the duty of good faith, conversion, and attorney fees were also submitted to the jury. The court, however, directed a verdict on Green’s fraud claim, finding that Green failed to offer any evidence of concealment, active or passive misrepresentation, or misimpression.

The jury awarded Green $100,000 plus attorney fees of $15,000. On appeal, Bumgarner, Bruce, and Senson, Inc. (collectively “Bum-garner”) assert seven errors, including the judgment dismissing Bumgarner’s claims against Dean Green, Green’s son, whom they sued as a third-party defendant. Held:

1. In three enumerations of error, Bumgarner asserts that the trial court erred in construing the partnership agreement and in ' finding that actions specifically permitted by the agreement could constitute a breach of fiduciary duty. Bumgarner contends a directed verdict was required because the acts that Green complained of were authorized under the terms of the Wauka partnership agreement. We agree and reverse.

Under the rules of contract construction, where the language in an agreement is clear and unambiguous, no construction is required or permitted by the trial court. Lothridge v. First Nat. Bank &c., 217 Ga. App. 711, 714 (3) (a) (458 SE2d 887) (1995). Here, Paragraph VI of the Wauka agreement provides, “[t]he Special Original Limited Partner [Green] shall be entitled to receive or be allocated profit and loss in accordance with his respective percentage interest only after the Original Limited Partners [Bumgarner and Bruce] and the General Partner [Senson, Inc.] have been reimbursed all additional funds which the General Partner and the Original Limited Partners shall advance from time to time to the Limited Partnership for the purposes of paying the acquisition costs of the real property, title insurance premiums, recording charges, and any and all other acquisition cost expenses incurred in connection with the acquisition of the real property described on Exhibit A’ [the entire 106-acre parcel].” The partnership agreement expressly authorized the General Partner to mortgage and encumber the underlying property (Section 11.01 (b)). According to Section 14.02: “The Property may be encumbered, sold, or otherwise transferred by the General Partner. . . .”

As a general rule, “[t]he construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.” OCGA § 13-2-2 (4). Considering the agreement as a whole, it plainly authorized Senson, Inc. to encumber the real property and the limited partners, Bumgarner and Bruce, to recover acquisition costs. See U. S. Fire Ins. Co. v. Capital Ford &c., 257 Ga. 77, 79 (1) (355 SE2d 428) (1987) (when words in a contract are plain and obvious, they must be given their literal meaning).

Nor do we find the language of the partnership agreement ambiguous. Ambiguity is “ ‘duplicity, indistinctness, an uncertainty of meaning or expression.’ ” Tarbutton v. Duggan, 45 Ga. App. 31 (5) (163 SE 298) (1932). A word or phrase is ambiguous when “ ‘ “it is of uncertain meaning and may be fairly understood in more ways than one.’”” (Citations omitted.) Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 256 (2) (381 SE2d 322) (1989). In this case, the partnership agreement is not ambiguous with respect to the issue of reimbursement for acquisition costs. By its express terms, the agreement bars the distribution of Wauka’s profits and losses until after the limited partners had been reimbursed for future advances and for “any and all other acquisition cost expenses incurred in connection with the acquisition of the real property. . . .” See Lyle v. Southern Fed. Sav. &c., 160 Ga. App. 196, 197 (2) (286 SE2d 438) (1981) (judicial construction inappropriate where contract terms are plain and unambiguous).

Nor was Green excused from reading the agreement to which he assented. Although Green in hindsight expressed regret that he had not retained a lawyer, he admitted that he had been afforded an opportunity to read the agreement and to ask the closing attorney questions about it. Green conceded that although he took a copy home he did not read the agreement until several years later in mid-1993. Where one who can read signs a contract "without reading it, he is bound by its terms, unless he can show that an emergency existed at the time of signing that would excuse his failure to read it, or that the opposite party misled him by an artifice or device which prevented him from reading it, or that a fiduciary or confidential relationship existed between the parties upon which he relied in not reading the contract. Cochran v. Murrah, 235 Ga. 304, 305 (219 SE2d 421) (1975). Inasmuch as Green failed to show a valid excuse for not reading the contract, he is bound by its terms despite that fact that they did not operate to his benefit. See id.; Kochis v. Mills, 233 Ga. 652, 653 (212 SE2d 823) (1975) (limited and general partners may make any agreement among themselves that they deem desirable provided their agreement does not violate a statute, the common law, or applicable public policy considerations). For the above reasons, we reverse the judgment rendered in Green’s favor and find that Bum-garner was entitled to a directed verdict as a matter of law. OCGA § 9-11-50 (e); compare Mattox v. MARTA, 200 Ga. App. 697, 698 (1) (409 SE2d 267) (1991).

2. Notwithstanding his claim to the contrary, Green was not entitled to recover his contribution from the limited partners. Green filed a statutory claim under OCGA § 14-9A-47 seeking a return of the value of his contribution. Neither the partnership agreement nor OCGA § 14-9A-47 permitted Green to recover his contribution from the limited partners.

We next address Green’s recovery for his contribution from the general partner, Senson, Inc. It is undisputed that Wauka had sold all the land, the partnership was at an end, and Green had voluntarily dismissed Wauka as a party. However, even after Green voluntarily dismissed Wauka as a defendant, Green could recover against Senson, Inc., but only if “there remains property of the partnership sufficient to pay [him, as a limited partner].” OCGA § 14-9A-47 (a) (1). See Kochis, 233 Ga. at 653. Inasmuch as the record is unclear as to what, if any, assets remained after the dissolution of the partnership, we remand for a determination by the trial court as to whether any partnership assets remain from which Green could recover his contribution from Senson, Inc. or from partnership assets. OCGA § 14-9A-47 (b) (1).

Decided June 20, 1997

Reconsideration denied July 9, 1997

Webb, Tanner & Powell, Anthony O. L. Powell, Robert J. Wilson, for appellants.

Banks, Stubbs & Neville, John R. Neville, Eric D. Miller, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., for appellees.

3. The award of attorney fees must be reversed. Green sought attorney fees based on bad faith and stubborn litigiousness. Because the actions taken were authorized by the partnership agreement, the record does not sustain a bad faith predicate upon which to liase attorney fees. Holmes v. Drucker, 201 Ga. App. 687, 689 (4) (411 SE2d 728) (1991).

4. The trial court did not err in directing a verdict in favor of third-party defendant, Dean Green, on his alleged derivative liability. Only one who is secondarily liable to the original defendant may be brought in as a third-party defendant. Quality Ford Sales v. Greene, 201 Ga. App. 206, 207 (410 SE2d 389) (1991). For this reason, Bumgarner’s third-party action was not proper. See Owens v. Citizens Trust Bank, 190 Ga. App. 501 (2), 502 (379 SE2d 594) (1989).

5. Based on the foregoing divisions, we need not reach the remaining enumerations.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Johnson, J., concur.

       The corporate minutes of Senson, Inc. list Bumgarner as president and treasurer, and Bruce as vice president and secretary.

       The total amount of reimbursement was $222,035.01 which included the $200,000 initial investment, interest, closing costs, and survey fees.

       Although Green did not allege in his complaint that Bumgarner breached the partnership agreement, the trial court instructed the jury on that theory.

       Section 11.06 precludes personal liability for the General Partner, absent fraud, gross negligence, or gross misconduct.


author: Ruffin, Judge. Birdsong, Presiding Judge,

text:
    A97A0060.
    FUSSELL v. JIMBO’S LOG KITCHEN, INC.
    (489 SE2d 71)
   Ruffin, Judge.

Linda J. Fussell sued Jimbo’s Log Kitchen, Inc. (“Jimbo’s”) for personal injuries sustained when she slipped and fell on Jimbo’s property. The trial court granted summary judgment to Jimbo’s, and Fussell appeals. For reasons which follow, we reverse.

Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the nonmovant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. 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. [Cit.]” Id.

Viewing the evidence favorably to Fussell, the record shows the following. At about 12:00 p.m. on the day of the accident, Fussell and her husband went to Jimbo’s, a local restaurant in Valdosta, Georgia, for lunch. Although it rained earlier that morning, the rain stopped by lunchtime. Fussell testified, however, that the streets were still wet from rain when they arrived at Jimbo’s.

The Fussells approached the restaurant on a wooden walkway leading from the parking lot. The conditions on the walkway were “not good” because the boards were wet, slippery, and in disrepair. Nevertheless, the Fussells traversed the wooden walkway without incident and ate lunch in the restaurant. Upon leaving, however, they decided not to use the walkway because of its bad condition. Instead, they approached the parking lot via an asphalt handicap ramp. As Fussell started down the ramp, the heel of her right shoe caught in a crack on the ramp, and her left foot slipped from under her. She fell on the ramp and heard a bone pop on her right side. According to Fussell, the ramp was slippery at the time of her fall. She further testified that if her left foot had not slipped on the ramp, she would not have fallen.

In the ambulance on the way to the emergency room, the attendant remarked that Fussell had little chicken feathers on her clothes. Mr. Fussell testified that he also saw chicken feathers on his wife’s clothing and noticed feathers on the handicap ramp while he was assisting her on the ground after the fall. The record reveals that Jimbo’s housed several chickens in a chicken coop on the premises.

Prior to Fussell’s fall, Jimbo’s had never received any complaints regarding slip and fall incidents on the handicap ramp and was not otherwise aware of any other incidents or complaints. Jimbo’s similarly had not received any complaints about the safety of the ramp and was not aware of any dangerous condition, including any alleged danger caused by chicken feathers. The record reveals that Jimbo’s swept the sidewalks and handicap ramps on its premises daily. Jimbo’s president further testified that on the day of Fussell’s fall, and in accordance with Jimbo’s policy, the handicap ramps and sidewalk areas on the premises were swept between 10:00 a.m. and 11:00 a.m. At that time, no chicken feathers or other debris were present in the area where Fussell fell.

Fussell sued Jimbo’s for injuries sustained in the fall, alleging that Jimbo’s negligence and failure to maintain the premises in a safe condition caused her to slip on wet chicken feathers. Thus, she contends that a foreign substance caused her fall, rather than a crack in the pavement or other static condition. To support her claim, Fussell must show “(1) that [Jimbo’s] had actual or constructive knowledge of the foreign substance and (2) that [she] was without knowledge of the substance or for some reason attributable to [Jimbo’s] was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). Fussell argues on appeal that the trial court improperly granted summary judgment to Jimbo’s. We agree.

1. In its summary judgment order, the trial court focused on Fussell’s knowledge of the hazard, concluding that Fussell’s knowledge was greater than Jimbo’s and that she failed to exercise ordinary care for her own safety. Viewing the evidence favorably to Fussell, however, we find that fact issues remain as to her knowledge and exercise of ordinary care.

(a) We note initially that the parties dispute whether the chicken feathers caused Fussell’s fall. The trial court found, and Jimbo’s argues, that Fussell presented no evidence supporting her allegation that she slipped on chicken feathers. According to Jimbo’s, rainwater and a crack in the pavement caused the fall and Fussell had equal knowledge of these hazards. Viewing the evidence favorably to Fussell, however, we find that a question of fact remains regarding the cause of Fussell’s fall. As revealed by her deposition, Fussell cannot pinpoint what caused her to fall on the ramp. Asked whether she slipped on chicken feathers, Fussell testified that she does not know; she knows only that “[she] slipped on this ramp, and that it was slippery. . . .” The record also shows, however, that Fussell’s clothing was covered with chicken feathers after the fall and that her husband noticed feathers on his clothes and on the ramp while helping her on the ground.

“The existence of [chicken feathers on the ramp] was otherwise shown by direct evidence^] and the circumstantial evidence [that both Fussell and her husband noticed feathers on their clothes following the fall] would authorize a finding that [the feathers were] the cause of [Fussell’s] fall. Thus, construing the evidence most favorably for [Fussell] and most strongly against [Jimbo’s], a genuine issue of material fact remains” as to the cause of Fussell’s fall. Bramblett v. Hansel-Scales, Inc., 200 Ga. App. 722, 723 (2) (409 SE2d 280) (1991). Compare Kenny v. M & M Supermarket, 183 Ga. App. 225, 226 (358 SE2d 641) (1987) (“Considering the ultimate fact that [plaintiff] testified in her deposition that she did not see any [slippery] substance, did not feel it or experience it on her clothing and did not inspect the floor after her fall, leads inescapably to the conclusion that only a fall was involved. . . .”).

(b) The record raises further questions as to whether Fussell knew or should have known about and avoided the hazard. “The customer must exercise ordinary care for [her] own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to [her] or in the exercise of ordinary care [she] should have learned of it. [She] must make use of all [her] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [her].” (Citations and punctuation omitted.) Alterman Foods, supra at 623. Yet, “ £[l]ooking continuously, without intermission, for defects ... is not required in all circumstances. What is a reasonable lookout depends on all the circumstances at the time and place.’ [Cit.]” Newell v. Great A & P Tea Co., 222 Ga. App. 884, 885 (1) (476 SE2d 631) (1996).

In an effort to show superior knowledge and lack of ordinary care by Fussell, Jimbo’s points to the following passages from her deposition. Asked whether she was looking down or ahead of her while descending the ramp, Fussell replied, “I was just looking straight on like anyone else leaving anywhere, you know.” Fussell also testified that, although she did not notice any cracks in or chicken feathers on the handicap ramp at the time she fell, nothing on the ramp would have prevented her from seeing cracks or chicken feathers had she been looking. Fussell further admitted that concrete and other surfaces are more slippery when wet and that handicap ramps are sloped.

Despite this testimony, we conclude that Jimbo’s was not entitled to summary judgment based upon Fussell’s alleged knowledge and lack of ordinary care. Although Fussell admits that she was not looking down at the time of the fall, she also testified that she ££pay[s] attention where [she] walk[s] and was very cautious. . . . [She] even had hold of [her] husband’s arm, being very cautious, and [her fall] just happened.” In addition, she testified that she has never considered whether “an inclined surface is going to be more slippery than a flat surface as a general rule. . . .” Under these circumstances, we do not find that, as a matter of law, Fussell descended the ramp in an unreasonable manner.

Furthermore, even if, as the dissent argues, Fussell should have known that chicken feathers were on the ramp, such knowledge would not entitle Jimbo’s to summary judgment. We have previously found that the hazard presented by a wet, sloping handicap ramp is not, in all situations, a “patently open and obvious condition which could have been discovered through the exercise of ordinary care.” (Punctuation omitted.) Metromedia Steakhouses Co. v. Ray, 219 Ga. App. 716, 718 (2) (466 SE2d 618) (1995). In Metromedia, for example, we concluded that a jury should decide whether the customer, who had not previously traversed the ramp in the rain, exercised ordinary care. Id.

The record in this case reveals that Fussell had never before visited Jimbo’s and that she entered the restaurant by a wooden walkway, rather than the asphalt handicap ramp. Furthermore, the allegedly slippery surface was not simply a wet ramp, but a wet ramp covered with little chicken feathers. The record presents no evidence that, as a matter of law, the hazard allegedly posed by the chicken feathers on the wet ramp was a condition about which Fussell should have been aware, even if she had seen the feathers. Accordingly, a jury question remains as to Fussell’s knowledge of the hazard and her exercise of ordinary care. See id.

2. Questions of material fact similarly exist regarding Jimbo’s knowledge of the claimed hazard. On appeal, Fussell assumes “arguendo” that Jimbo’s did not have actual knowledge of the hazard. Liability, however, may be based upon a proprietor’s constructive knowledge of the hazard, which is established by showing either that: “(1) an employee of the proprietor was in the immediate area of the hazard and had the means and opportunity to easily see and remove it; or (2) the proprietor failed to exercise reasonable care in inspecting the premises. [Cit.]” Newell, supra at 886.

Traveling under the constructive knowledge theory, Fussell claims that Jimbo’s failed to reasonably inspect the premises. Recovery based upon lack of reasonable inspection requires proof of the length of time the dangerous condition was allowed to exist before Fussell’s fall. Daniel v. John Q. Carter Enterprises, 218 Ga. App. 223, 224 (460 SE2d 838) (1995). On summary judgment, however, Fussell need not present evidence establishing the length of time the substance was on the ground until Jimbo’s produces evidence of a reasonable inspection. Id. at 225. “In seeking summary judgment, [Jimbo’s] has the initial burden of showing that this theory of recovery is not viable by demonstrating that it exercised reasonable care in inspecting the premises. [Cit.] This burden may be carried by evidence of compliance with reasonable inspection procedures. [Cit.] . . . Once [Jimbo’s] demonstrates a lack of actionable constructive knowledge by compliance with reasonable inspection procedures, the burden shifts back to [Fussell] to show how long the foreign substance had been allowed to remain on the [ground]. [Cit.]” Id. at 224-225.

The record establishes that Jimbo’s swept the handicap ramp and sidewalk areas on its property “daily” and that, pursuant to this policy, the handicap ramp was swept on the day of Fussell’s fall between 10:00 a.m. and 11:00 a.m. At that time, no chicken feathers or other debris were on the handicap ramp where Fussell fell.

This evidence does not, as a matter of law, establish that Jimbo’s reasonably inspected the premises. We recognize that “a proprietor is under no duty to patrol the premises continuously in the absence of facts showing that the premises are unusually dangerous.” (Citations and punctuation omitted.) Barker v. Shoney’s, Inc., 222 Ga. App. 387, 389 (474 SE2d 284) (1996). The record reveals that Jimbo’s was not aware of any dangerous condition on the handicap ramp. Reasonable minds could differ, however, as to whether a once-a-day sweeping of the ramp possibly completed over two hours before Fussell fell conforms with a “reasonable inspection” of the premises. Accordingly, a jury question remains regarding Jimbo’s knowledge of a hazárd on the handicap ramp.

Judgment reversed.

Pope, P. J., Johnson, Blackburn, JJ, and Senior Appellate Judge Harold R. Banke concur. Andrews, C. J., and Birdsong, P. J., dissent.

Birdsong, Presiding Judge,

dissenting.

Because the majority’s misapplication of law to the facts of this case has made appellee Jimbo’s Log Kitchen an insurer of the safety of appellant Fussell, contrary to the long-standing legal precedent of this state, I am compelled to dissent.

The majority correctly recounts that appellant Fussell admitted in her deposition testimony that she was not looking down at the ramp as she descended it; rather she “was just looking straight on like anyone else leaving anywhere.” At the time she “knew everything was slippery so [she] was trying to be as cautious as [she] could”; she was holding her husband’s arm. (Emphasis supplied.) Her fall was caused when her right heel caught on something, which, due to the marks on the heel of her shoe, she believed was a crack in the concrete; simultaneously her left foot slipped out from under her. She did not see any chicken feathers on the wooden walkway when she entered the premises, although she saw some feathers on the leaves off of the walkway; neither did she see any cracks or chicken feathers on the handicap ramp as she attempted her exit. Appellant further testified that she does not know whether she slipped on chicken feathers; all she knows is that the ramp was slick and she slipped. Even on her earlier entry into the building she realized that the wooden plank was “abnormally slippery,” whether it was chicken excrement draining from the coop or some other substance. While she knew everything was slippery, she concluded it would be safer to go down the concrete ramp rather than the wooden one. She further admitted in her deposition that had she been looking for such conditions nothing existed at the scene of her fall to prevent her from seeing either the crack in the concrete (which she speculates is the condition which caused her right foot to catch going down the ramp) or chicken feathers on the handicap ramp if such were present.

While it is true that the presence of a wet, sloping ramp does not per se present in all circumstances a patently open and obvious condition which could have been discovered through the exercise of ordinary care, this is not the situation before us in this case. Appellant has admitted in her testimony that had she looked she could have seen any chicken feathers on the ramp or the cracks in the concrete; by her own testimony she has in essence conceded that the circumstances which she avers combined to cause her fall were open, obvious and capable of detection if one only was looking for such conditions. (Any other testimony contained in appellant’s deposition which is inconsistent, directly or indirectly, with her testimony, as above discussed, would compel the invocation of the rule pertaining to inconsistent testimony set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680); appellant has not offered any reasonable explanation for any potentially inconsistent deposition testimony by her regarding these material matters.)

Assuming without deciding that the facts of this case present a scenario requiring application of a foreign substance (rather than the static condition) legal model, the proper test to apply would be that stated in Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327): “[T]o state a cause of action . . . where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show . . . (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Appellant has unequivocally testified that nothing prevented her from seeing either the feathers or the concrete cracks in the ramp. To show that she was without knowledge of the substance, appellant/plaintiff, under the Alterman Foods foreign substance model, “must also show that [s]he was without knowledge of its presence.” Id. To make this latter showing, a “ ‘ “customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” ’ ” (Emphasis supplied.) Id. The majority pays lip-service to the Alterman Foods model but seeks to circumvent its effect by citing the ancillary rule that a customer is not required to look continuously, without intermission, for defects. See generally Newell v. Great A & P Tea Co., 222 Ga. App. 884 (476 SE2d 631). This rule is not applicable under the facts here attendant. Appellant has admitted that she was fully aware of the slippery conditions existing throughout the area leading to and from the premises; in fact, it was this knowledge which prompted her to select an exit route which she concluded would not be as dangerous to her as again traversing the wooden ramp and walkway. She nevertheless was fully aware of the slippery conditions as unequivocally evidenced by her testimony that she was holding her husband’s arm and proceeding as cautiously as she could. Under these known conditions, appellant had the duty to remain álert and to remain on continuous look-out where she was walking in order to protect her own safety; this duty was not negated merely because she elected to hold her husband’s arm; rather this unrefuted recognition of the slippery conditions merely increased the degree of alertness which a reasonably prudent person would exercise for their safety. It is well established that an invitee must use all his or her senses in a reasonable manner amounting to reasonable care to discover the presence of and to avoid a dangerous condition. Baker v. Winn-Dixie Stores, 219 Ga. App. 513, 514 (465 SE2d 710), citing Alterman Foods, supra. This appellant has conceded by her own deposition testimony that she failed to do. “[A] grant of summary judgment must be affirmed ... if it is right for any reason.” Newsome v. Dept. of Human Resources, 199 Ga. App. 419, 423 (3) (405 SE2d 61). By their holding, a majority of my colleagues have in effect made the proprietor an insurer by not requiring an invitee to be vigilant when fully aware of the existence of dangerous conditions on the premises.

The majority’s reliance on Daniel v. John Q. Carter Enterprises, 218 Ga. App. 223 (460 SE2d 838), is misplaced on two grounds. First, appellant has failed as a matter of law to meet the second prong of the foreign substance test of Alterman Foods, supra; Daniel, supra, addresses itself to constructive knowledge under the first prong of the test. Secondly, the continued viability of Daniel, supra, regarding burden of proof in summary judgment cases is highly questionable and will need to be re-visited by this Court in futuro. See generally Blake v. Kroger Co., 224 Ga. App. 140, 147 (480 SE2d 199) (Andrews, J., concurring specially).

Decided July 9, 1997

Mark A. Gilbert, William R. Folsom, for appellant.

Young, Thagard, Hoffman, Scott & Smith, Henry P. Scott, for appellee.

Thus, I must respectfully dissent. I am authorized to state that Chief Judge Andrews joins in this dissent.

       Jimbo’s president submitted an affidavit stating when the handicap ramp was swept on the day of Fussell’s fall. We note that the affidavit in the record is incomplete. In particular, the signature page is missing. Fussell, however, has judicially admitted in her brief that Jimbo’s president “testified that the handicap access ramp was swept on the morning of [her] fall, between 10:00 a.m. and 11:00 a.m.” See Thorp v. State of Ga., 217 Ga. App. 275, 276 (1) (457 SE2d 234) (1995).


author: McMurray, Presiding Judge.

text:
    A97A0446.
    FRAME et al. v. HUNTER, MACLEAN, EXLEY & DUNN, P.C.
    (488 SE2d 713)
   McMurray, Presiding Judge.

Plaintiffs Christopher K. Frame, Rosemary Frame and C. F., Inc. filed this legal malpractice action against Hunter, Maclean, Exley & Dunn, PC. (“HME&D”) alleging substandard disclosure practices during a closing transaction involving transfer of various businesses to Golden Isles Petroleum, Inc. (“Golden Isles”). Plaintiffs alleged HME&D’s failure to include an accurate financial statement in the closing package, reflecting the businesses’ true value, provided Golden Isles with the basis for a federal lawsuit which resulted in a $585,000 jury verdict against Christopher K. Frame and C. F, Inc. for securities fraud and sales contract violations. Because plaintiffs filed their complaint more than four years after the law firm’s alleged malpractice, HME&D moved for summary judgment based upon expiration of the applicable statute of limitation. Plaintiffs pertinently argued, in defense, that the statute of limitation tolled because HME&D — taking advantage of a long-term confidential relationship with Christopher K. Frame and his family — lulled the Frames into not understanding HME&D’s alleged malpractice until the eve of the Golden Isles jury trial, on or about May 12, 1992. The trial court did not agree and granted HME&D’s motion for summary judgment. We reverse because proof that attorney-client confidences (which may have actually diverted attention away from the law firm’s alleged malpractice), remaining between HME&D and the Frames during the Golden Isles lawsuit raises genuine issues of material fact as to the tolling of the statute of limitation.

The trial court entered a detailed summary judgment order which includes undisputed findings of fact. These findings as well as other pertinent matters of record, either quoted or construed according to the standard prescribed in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474), reveal the following: Christopher K. Frame and his spouse, Rosemary Frame, are the owners, officers and sole stockholders of C. F, Inc., a holding company which formerly owned a wholesale gasoline jobbership known as Wes Frame, Inc. In the fall of 1988, Christopher K. Frame began negotiating with Golden Isles to sell Wes Frame, Inc.’s assets and other related convenience store businesses. HME&D, a law firm which had “been representing [Christopher K. Frame, the Frame] family and the above-mentioned [business] entities for general legal matters since the early 1970’s,” represented the Frames during these negotiations and, on April 25, 1989, conducted a closing whereby Golden Isles acquired Wes Frame, Inc. and the convenience store entities. The deal soured, however, when Golden Isles discovered that Wes Frame, Inc. was worth considerably less than the closing documents revealed.

Although HME&D failed to include a financial statement in the closing package which would have disclosed Wes Frame, Inc.’s true value, the HME&D lawyer in charge of the closing assured Christopher K. Frame that this omission did not expose him to liability and then attempted to resolve the Golden Isles dispute. When these efforts failed, Golden Isles filed an action against Christopher K. Frame and C. F, Inc. (on July 27, 1990) in the United States District Court for the Southern District of Georgia, seeking damages for securities fraud, breach of contract and misappropriation of funds. Golden Isles’ complaint “alleges inappropriate acts by [Christopher K. Frame] and C. F, Inc. surrounding the negotiations and transaction that was finalized on April 25, 1989.”

HME&D advised Christopher K. Frame that the firm “would not be able to represent him in the [Golden Isles] lawsuit because potentially [its lawyers] would be witnesses and the rule is that you cannot be both the witness and the lawyer in the same lawsuit.” Christopher K. Frame thereafter retained the services of a law firm which HME&D recommended and answered the Golden Isles’ complaint. This change, however, did not end Christopher K. Frame’s confidential reliance on HME&D’s advice. “Hunter, Maclean represented [Christopher K. Frame] and C. F, Inc. throughout this litigation[, advising Frame as to] the appropriateness of all actions surrounding the negotiations and closing transactions [that were finalized on April 25, 1989].” Specifically, “[throughout the litigation, [HME&D] advised [Christopher K. Frame] that [he] had no exposure to legal liability from the suit brought by Golden Isles. [This advice changed, however, on] or around the 12th of May, 1992[,] which was on the eve of . . . trial, [when HME&D] for the first time related to [Frame] that [it] made an error in the [Golden Isles closing] transaction documents which exposed [him] to liability.” This point was highlighted during the federal jury trial which followed. The HME&D lawyer in charge of the Golden Isles closing testified that “a clerical error” resulted in omission of a financial statement which would have accurately disclosed Wes Frame, Inc.’s value. This testimony and other evidence adduced at trial resulted in a $585,000 jury verdict against Christopher K. Frame and C. F, Inc. for securities fraud and breach of contract. Held:

1. “Where fraud by a defendant debars or deters a plaintiff from bringing an action, OCGA § 9-3-96 tolls the statute of limitation until the plaintiff discovers the fraud. And while the fraud described in this Code section must be actual fraud, or fraud involving moral guilt or any artifice by which another is deceived, ‘(a) confidential relationship between the parties . . . lessens, if not negates, the necessity for showing (such) actual fraud. Sutlive v. Hackney, 164 Ga. App. 740, 741 (297 SE2d 515) (1982).’ Arnall, Golden & Gregory v. Health Svc. Centers, 197 Ga. App. 791, 793 (2) (399 SE2d 565).” Gilmore v. Bell, 223 Ga. App. 513, 514 (1) (478 SE2d 609). This critical aspect of the parties’ relationship in the case sub judice, however, is not the nucleus of the trial court’s comprehensive summary judgment order.

The trial court, citing Riddle v. Driebe, 153 Ga. App. 276 (265 SE2d 92), and Frates v. Sutherland, Asbill & Brennan, 164 Ga. App. 243 (296 SE2d 788), granted HME&D’s motion for summary judgment concluding that the law firm’s assurances to Christopher K. Frame, regarding his liability to Golden Isles and (apparently) the benign effects of the law firm’s omission of an accurate financial statement at closing, were expressions of opinions which do not establish the type of fraud required to toll the statute of limitation under OCGA § 9-3-96. In both Riddle and Frates, however, attorney-client confidences were severed when the defendant lawyers expressed their views as to the quality and effect of their legal services. The circumstances are different in the case sub judice. Indeed, just as in Arnall, Golden & Gregory v. Health Svc. Centers, 197 Ga. App. 791, 793 (2), supra, plaintiffs have filed proof that HME&D’s confidential relationship with Christopher K. Frame remained (at least until the eve of Golden Isles’ federal jury trial) and that HME&D’s advice to Christopher K. Frame during this time actually lulled the Frames into not understanding the quality and effect of HME&D’s prior legal services.

“The existence of a confidential relationship depends heavily upon the circumstances of each case and is therefore an issue best suited for resolution by a jury. See Adams & Adams, Ga. Law of Torts (1995 ed.), § 32-3. Further, in determining whether genuine issues of material fact remain as to the existence of a confidential relationship, all the law requires is a showing of a relationship which justifies the reposing of confidence by one party in another. Cochran v. Murrah, 235 Ga. 304, 307 (219 SE2d 421).” Gilmore v. Bell, 223 Ga. App. 513, 514 (1), supra. In the case sub judice, plaintiffs’ evidence shows that HME&D had been Christopher K. Frame’s legal representative for at least 20 years before the Golden Isles closing; that HME&D represented Christopher K. Frame and C. F., Inc. when the Golden Isles deal started crumbling (i.e., allegedly because the Frames had irregularly diverted cash from Wes Frame, Inc. prior to closing); that HME&D maintained close contact with Christopher K. Frame during Golden Isles’ federal lawsuit; and that HME&D advised Christopher K. Frame, during the Golden Isles action and until the time of trial, “that [he] had no exposure to legal liability from the suit brought by Golden Isles.” This evidence alone is sufficient to authorize a finding that a confidential relationship existed between Christopher K. Frame and HME&D so as to toll the statute of limitation. See Arnall, Golden & Gregory v. Health Svc. Centers, 197 Ga. App. 791, 793 (2), supra. Accordingly, the trial court erred in granting HME&D’s motion for summary judgment.

Decided July 9, 1997

Savage & Turner, Robert B. Turner, Robert S. Kraeuter, Shapiro, Fussell, Wedge, Smotherman & Martin, Robert B. Wedge, Mary L. Hahn, for appellants.

Oliver, Maner & Gray, Patrick T. O’Connor, Timothy D. Roberts, Warlick, Tritt & Stebbins, William B. Warlick, for appellee.

2. Our holding in Division 1 renders it unnecessary to address plaintiffs’ remaining enumeration of error.

Judgment reversed.

Beasley and Eldridge, JJ, concur. Smith, J, disqualified.

       HME&D also represented C. E, Inc. and the convenience store entities. For ease and brevity, however, we refer to Christopher K. Frame only in reference to these fiduciary bonds.

       Although proximate cause is not an issue in the case sub judice, we observe that “a client may recover for legal malpractice only if the negligence of the attorney proximately caused damage to the client. Crowley v. Trust Co. Bank &c., 219 Ga. App. 531, 532 (466 SE2d 24) (1996).” Morris v. Atlanta Legal Aid Society, 222 Ga. App. 62, 65 (4) (473 SE2d 501).


author: Pope, Presiding Judge.

text:
    A97A0650.
    BARNETT et al. v. QUINN.
    (489 SE2d 68)
   Pope, Presiding Judge.

We granted defendants Marion H. Barnett, Jr. and Vivian F. Barnett’s application for review of an order issued by the Superior Court of Wilkes County. The order sought to transfer back to the State Court of Fulton County venue over a suit that had initially been filed against the Barnetts and three corporate defendants in Fulton County State Court, but that had subsequently been transferred by that court to the Wilkes County Superior Court. Upon review, we conclude that the Wilkes County Superior Court erred in ordering the case transferred back to Fulton County and, therefore, reverse the court’s order.

On March 30, 1991, Grant Quinn was severely injured in Wilkes County when the roof of the Honda Prelude in which he was riding purportedly collapsed during a collision with a Black Angus bull that allegedly had escaped its fencing and gotten into the roadway. The bull was owned by the Barnetts d/b/a Barnett Angus Farm, who are residents of Wilkes County. Plaintiff Mary Anne Quinn, as Grant Quinn’s guardian, brought a personal injury suit in the State Court of Fulton County on behalf of her son against the Barnetts for negligence and against defendants American Honda Motor Company, Inc., Honda Motor Company, Ltd., and Honda Research & Development Company, Ltd. based on theories of product liability. American Honda was the only defendant having residency in Fulton County.

On April 17, 1995, pursuant to a written agreement, plaintiff settled its suit with all of the Honda defendants. Thereafter, on August 16, 1995, the nonresident Honda defendants were dismissed from the suit with prejudice, and American Honda was dismissed without prejudice. In addition to releasing plaintiff’s claims against the Honda defendants, the settlement agreement provided that in the event the Barnetts obtained a non-appealable final order transferring venue in the case from Fulton County State Court to another court, American Honda alone would deliver to plaintiff’s counsel an executed consent judgment for filing in Fulton County State Court. Pursuant to the settlement agreement, plaintiff and the Honda defendants also entered into a consent order in which they agreed that the Fulton County State Court would retain jurisdiction to enter the abovementioned consent judgment should the Barnetts obtain a final non-appealable order transferring venue in the case.

Following the Honda defendánts’ dismissal from the suit, the Barnetts moved to transfer the case. The State Court of Fulton County granted the motion and, by order dated January 9, 1996, transferred the case to the Superior Court of Wilkes County. The Fulton County State Court further refused to grant plaintiff a certificate of immediate review, thereby making its transfer order nonappealable. Subsequently, as contemplated by the settlement agreement, in March 1996, American Honda accepted service of an amended complaint re-naming it as a party in the suit and entered into a consent judgment with plaintiff regarding the amended complaint. When plaintiff attempted to file these documents in the Fulton County State Court, however, she was prevented from doing so based on the fact that the case had been transferred some two months earlier. Consequently, on March 29, 1996, plaintiff filed the amended complaint and consent judgment in the Superior Court of Wilkes County. Plaintiff then moved to have the case transferred back to Fulton County on April 14, 1996. After conducting a hearing on the matter, the Wilkes County Superior Court granted plaintiff’s motion and thereafter certified the matter for immediate appellate review.

In their sole enumeration, the Barnetts contend that the Wilkes County Superior Court erred in concluding that the case must be transferred back to the Fulton County State Court. We agree.

“A defendant is entitled to be sued in the county of his [or her] residence. Ga. Const. 1983, Art. VI, Sec. II, Par. VI. [But s]uits against joint tortfeasors residing in different counties may be tried in either county. Ga. Const. 1983, Art. VI, Sec. II, Par. IV. However, proper venue against a nonresident joint tortfeasor may vanish. The venerable principle of vanishing venue was well established at the turn of the century. ‘(W)here suit is brought against two defendants, one of whom resides in the county, the court has no jurisdiction of the nonresident defendant unless the resident codefendant is liable in the action.’ (Emphasis supplied.) Ross v. Battle, 117 Ga. 877, 880 (45 SE 252) (1903). In Timberlake Grocery Co. v. Cartwright, 146 Ga. App. 746, 747 (247 SE2d 567) (1978) this court clarified the concept: ‘(I)f no judgment is taken against a resident defendant, the court loses venue as to the nonresident defendant(s). . . .’ ” Collipp v. Newman, 217 Ga. App. 674, 675 (458 SE2d 701) (1995).

Eelying on Motor Convoy v. Brannen, 194 Ga. App. 795 (391 SE2d 671) (1990), the Wilkes County Superior Court concluded that plaintiff’s filing of the amended complaint and consent judgment against American Honda in Wilkes County prevented venue from vanishing in Fulton County and, therefore, that the case should be transferred back to that county. Finding the circumstances presented in Brannen clearly distinguishable from those presented in the case at bar, we cannot agree.

In Brannen, noting that the controlling factor governing the retention of jurisdiction over a nonresident was the resolution of liability on the part of the resident, we held that the requirement that a judgment be entered against the resident joint tortfeasor could be satisfied by the entry of a consent judgment against that tortfeasor in the court presiding over his or her county of residence. Id. Implicit in this holding is the recognition that the resident tortfeasor must actually be a party to the lawsuit while the suit is pending in his or her county of residence in order for a consent judgment to prevent venue from vanishing in that county. And in Brannen, because a final consent judgment had been entered against the resident joint tortfeasor in the court presiding over that tortfeasor’s county of residence while that tortfeasor was still a party to the suit, we concluded that venue as to the nonresident joint tortfeasor had not vanished. Id.

In the instant case, however, no consent judgment ever was entered against American Honda in the State Court of Fulton County. And plaintiff’s only attempt to enter such a judgment in that court was not made until several months after American Honda had been voluntarily dismissed from the lawsuit and the case had been transferred to Wilkes County. With the dismissal of American Honda, venue in Fulton County vanished because there was no longer any resident party defendant to be held liable in the case. See Collipp, 217 Ga. App. at 676. Consequently, at the time plaintiff attempted to have a consent judgment entered in Fulton County, the Fulton County State Court had properly transferred the case to Wilkes County. Id. In doing so, it also had lost jurisdiction over the lawsuit and, with it, the authority to entertain the filing of plaintiff’s amended complaint and the consent judgment.

While it is true that plaintiff eventually filed her amended complaint and the consent judgment in the Wilkes County Superior Court approximately seven months after dismissing her case against American Honda, as set forth above, at that time venue was properly in Wilkes County. And we know of no statutory or case law authorizing a court having proper venue over an action to transfer that action to another county based on the mere addition of a defendant to the lawsuit who resides in the other county and has agreed to have a judgment entered against it. Moreover, upon close review, we conclude that by its very nature the agreement between plaintiff and American Honda, which contemplated the filing of an amended complaint and acknowledgment of its service by American Honda after its dismissal from the case so that a consent judgment could be entered against it in the event that the Barnetts obtained an order transferring venue to another jurisdiction, amounts to no more than a creative attempt to keep American Honda in the case as a party defendant in name only for venue purposes. This cannot be allowed. See Bell v. McDonald, 117 Ga. App. 570, 571-572 (161 SE2d 432) (1968).

Decided July 9, 1997.

Fain, Major & Wiley, Charles A. Wiley, Jr., Brian H. Alligood, for appellants.

Doffermyre, Shields, Canfield & Knowles, Foy R. Devine, Fowler & Wills, Samuel A. Fowler, Jr., for appellee.

Accordingly, the Superior Court of Wilkes County’s order transferring venue back to Fulton County must be reversed.

Judgment reversed.

Johnson and Blackburn, JJ, concur.

       This is so even though plaintiff and American Honda had the State Court of Fulton County enter a consent order on their behalf stating that it would reserve jurisdiction in the case for the limited purpose of entering a consent judgment in the event the case was transferred to another jurisdiction. Such a reservation constituted an improper and unenforceable attempt to have the State Court of Fulton County exercise jurisdiction in a case at a time when it no longer had the authority and ability to do so due to the case’s transfer to and pendency in another forum.


author: Andrews, Chief Judge.

text:
    A97A0764.
    DIGBY’S, INC. v. EMORY UNIVERSITY.
    (489 SE2d 81)
   Andrews, Chief Judge.

Digby’s, Inc. d/b/a Ballard Optical Company (Digby’s) appeals from the grant of summary judgment to Emory University d/b/a Emory Crawford Long Hospital (Emory) in this lease dispute. Emory sued Digby’s for default of Digby’s lease of space for an optical store at Crawford Long and acceleration of the balance due on the lease. Digby’s defended, contending there was an accord and satisfaction or surrender of the premises by Digby’s and acceptance by Emory, thereby terminating the remainder of the lease.

1. “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 nonmoving 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 plaintiff’s 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. All of the other disputes of fact are rendered immaterial. [Cit.]” (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

There is no dispute that, on May 14, 1993, Digby’s executed the office space lease for a period beginning July 1, 1993, until June 30, 1995, requiring monthly rental payments of $2,800. The lease provided that, in the event of default by the lessee, the lessor “shall have the option to do any one (or more, if not inconsistent) of the following, in addition to and not in limitation of any other remedy permitted by law or by this lease, within six (6) months thereafter (but only during the continuation of such event of default: . . . (b) Declare the entire amount of the rent for the remainder of the Term of this lease to be due and payable immediately, in which event, Lessee agrees to pay the same at once, together with all rents theretofore due.”

In July 1994, David Digby approached Roper, the property manager for Emory, and explained that the business was experiencing financial difficulties. By December 1994, Digby’s had fallen behind in its rental payments and was in arrears $19,106.87.

Both Roper and Digby agree that discussions ensued in the fall of 1994 regarding Digby’s terminating the lease early and moving from the space. As Roper stated “[i]n November 1994, [Emory] agreed to allow Digby’s to move from the Premises in December 1994 and further agreed that Digby’s would not be liable for the balance due on the Lease on the express condition that Digby’s paid the outstanding balance due through December 1994 no later than December 31, 1994. Digby’s agreed to this condition as a prerequisite to Digby’s moving out of the Premises in December 1994.”

Digby states that Roper told him she had another tenant interested in the premises and “that she needed the premises vacant and that she wanted Digby’s to vacate the space before the end of its lease. Ms. Roper told me that Emory would not hold Dighy’s responsible for any rent that accrued after we vacated the premises. In reliance on Ms. Roper’s representations, I agreed to vacate the premises and did in fact, vacate on December 31, 1994.” (Emphasis supplied.) Digby does not agree that payment of the past due rent was a condition precedent to vacating the premises.

Although Digby told Roper on January 20, 1995, that payment of the rental through December would be forthcoming, he later advised her that Digby’s did not have the money and did not know when it could be paid. Despite efforts to re-lease the premises vacated, Emory was not able to do so.

2. Digby’s contends that there remain issues of fact concerning the defense of accord and satisfaction that preclude summary judgment on the issue of future rent.

This argument is controlled adversely to Digby’s by White v. Orton Indus., 224 Ga. App. 342 (480 SE2d 620) (1997) and Johnson v. Ashkouti, 193 Ga. App. 810 (389 SE2d 27) (1989). In both of those cases, as here, tenants under written leases claimed that oral agreements with the lessors modified the written leases’ requirement that they pay future rentals upon default.

Where the statute of frauds requires a contract to be in writing, as is the case with a lease for a term in excess of one year, an alleged oral modification of it is ineffective unless the oral agreement falls within an exception to the operation of the statute of frauds. White, supra; Johnson, supra. The only performance relied upon by Digby’s to qualify under the exception of OCGA § 13-5-31 (3) (partial performance) is the vacating of the premises in reliance on the purported oral modification. “Such a unilateral surrender of possession of the leased premises confers no benefit upon the lessor and results in no consequent loss to the tenant so that the applicability of OCGA § 13-5-30 would thereby be demonstrated. [Cits.]” Johnson, supra at 811 (1).

Decided July 9, 1997.

Schreeder, Wheeler & Flint, John A. Christy, Debbie A. Wilson, for appellant.

Macey, Wilensky, Cohen, Wittner & Kessler, Richard C. Litwin, Susan L. Howick, for appellee.

3. Additionally, even accepting Digby’s contention that payment of the past due rental was not a prerequisite to early termination of the lease, summary judgment was still appropriate. Since Eoper’s affidavit is unequivocal in this regard, Digby’s statement indicates that, in fact, there was no agreement, only continuing discussions and an agreement to attempt to agree. Lamb v. Decatur Fed. Sav. &c. Assn., 201 Ga. App. 583, 585 (1) (411 SE2d 527) (1991); Vaswani v. Wohletz, 196 Ga. App. 676 (396 SE2d 593) (1990).

4. Finally, any such oral modification of the written lease is precluded by the “entire agreement” clause, which states that the lease “contains the entire agreement of the parties, and not [sic] representations, inducements, promises or agreements, oral or otherwise, between the parties not embodied herein shall be of any force or effect. No failure of Lessor to exercise any power given Lessor hereunder or to insist upon strict compliance by Lessee of any obligation hereunder, and no custom or practice of the parties at variance with the terms hereof shall constitute a waiver of such power of default hereunder unless given in writing.” Talmadge v. Respess, 224 Ga. App. 768, 769 (1) (482 SE2d 709) (1997); Pennington v. Braxley, 224 Ga. App. 344, 347 (2) (480 SE2d 357) (1997).

Judgment affirmed.

Beasley and Smith, JJ, concur.

       Digby’s does not dispute its obligation for pre-January 1995 rental.