text:
    A89A1961.
    VICK v. THE STATE.
    (391 SE2d 455)
   Cooper, Judge.

Appellant appeals his conviction of child molestation. The evidence adduced at trial shows that appellant and his live-in companion frequently baby-sat for the twelve-year-old victim and her younger sister, who were unrelated to appellant. On the day in question, appellant’s companion and the younger sister went to the library, and appellant asked the victim to stay and help him with his baby. The victim testified that appellant then pulled down her pants, placed his finger in her vagina, and also placed his penis inside her. Her sister testified that appellant attempted to kiss the victim when they were leaving, but the victim pulled away from him.

1. Appellant contends that the trial court erred in admitting into evidence a video and audiotape interview with the victim. However, a taped interview with a child is admissible under OCGA § 24-3-16, which permits the statement of a child under the age of 14 to be admitted if it describes acts of sexual contact or physical abuse, if the child is available to testify in court, and if the circumstances of the statement are shown to have a sufficient indicia of reliability. Newberry v. State, 184 Ga. App. 356 (1) (361 SE2d 499) (1987). At trial, appellant’s only objection went to the relevance of the statement contained on the tape. On appeal he contends that it was not part of the res gestae. Issues raised for the first time on appeal will not be considered by this court. Stokely v. State, 188 Ga. App. 489 (2) (373 SE2d 230) (1988); Smith v. State, 186 Ga. App. 303, 306 (367 SE2d 573) (1988).

2. Appellant further asserts as error the trial court’s grant of the State’s motion in limine, which excluded evidence related to the victim’s statement that her father periodically “checked her to see if she had been messing around with boys” and impermissibly restricted his right of cross-examination of the victim because he was not allowed to question the victim as to why she was afraid of her father, her motives for testifying, and about possible reasons for the stretching of her hymen. The trial transcript reveals that appellant was allowed to cross-examine the victim about the reasons she was afraid of her father but did not develop this line of questioning. Although appellant was not allowed to cross-examine the victim as to her statement that her father periodically checked to see if she was “messing around” with boys, such a line of questioning is barred because it is irrelevant in proving whether appellant committed the crime for which he is on trial. Chastain v. State, 180 Ga. App. 312 (2) (349 SE2d 6) (1986); aff’d 257 Ga. 54 (354 SE2d 421) (1987). Questions concerning the victim’s use of tampons during menstrual periods and whether she had inserted anything else in her vagina were properly disallowed, as there was no competent evidence introduced of the stretching of her hymen. In any event, such evidence implying sexual experience is barred under Chastain v. State, supra.

3. Appellant asserts as his last enumeration of error the trial court’s refusal to give curative instructions to the jury as to the violation of the rule of sequestration during the trial after it became apparent that the twelve-year-old victim might have discussed the date of the offense and consulted a calendar with her parents one evening after trial. The trial court was not convinced that a violation of the rule had occurred and declined to bring the matter to the attention of the jury at that time. However, in its charge to the jury the court gave a full instruction on violation of the rule of sequestration, explaining that such a violation goes to the credibility rather than the admissibility of the witness’ testimony. See O’Kelley v. State, 175 Ga. App. 503 (1) (333 SE2d 838) (1985). We find no requirement that the trial court instruct the jury immediately following the alleged violation and appellant has failed to show that any harm resulted. After the charge, the trial court asked if there were any objections, and appellant’s counsel stated that he had none. We find that appellant has waived any objection to the charge as given. Gibby v. State, 166 Ga. App. 413 (3) (304 SE2d 518) (1983).

Decided February 22, 1990

George R. Asinc, for appellant.

Thomas J. Charron, District Attorney, Charles Norman, Assistant District Attorney, for appellee.

Judgment affirmed.

Been, P. J., and Birdsong, J., concur.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A89A2102, A89A2103.
    KING et al. v. SHERATON SAVANNAH CORPORATION; and vice versa.
    (391 SE2d 457)
   Birdsong, Judge.

King and the Urban Crisis Center (collectively “King”) appeal from the grant of summary judgment to Sheraton Savannah Corporation and the Sheraton Operation Cooperation (“Sheraton”) on King’s claim for breach of contract. Sheraton cross-appeals from the denial of its motion for summary judgment on King’s bodily injury claim and Urban Crisis Center’s claim for damage to its yacht.

The record shows that King docked a yacht owned by the Urban Crisis Center at the Sheraton. King and Sheraton discussed an arrangement by which Sheraton’s guests could use the yacht, King would receive a rental fee, and Sheraton would cater events on the yacht. King would also use the yacht for seminars and other business of the Urban Crisis Center.

Before the arrangement could be implemented, however, the yacht needed repairs and Sheraton required King to secure a license for the yacht’s intended use, to obtain liability insurance with one million dollar coverage, and to arrange for the yacht to have at least two crew members. While these matters were pending, Sheraton allowed King to dock the yacht there for a monthly fee.

Before the repairs were completed, a storm hit, damaging the yacht and injuring King. After the storm, Sheraton would not allow King’s yacht to use its dock as before. King and the Urban Crisis Center sued Sheraton for breach of the contract for rental of the yacht, King’s bodily injuries, and property damage to the yacht. When Sheraton’s motion for summary judgment was granted in part and denied in part, these appeals followed. Held:

Case No. A89A2102

1. The breach of contract claim asserted the arrangement between the parties was a contract and Sheraton breached it by refusing to permit repairs to be completed at Sheraton’s dock so the yacht could be rented as they agreed. Sheraton contended, however, there was no contract because the parties had only agreed to reach a contract in the future. Sheraton further contended that the agreement reached imposed no obligations because it was not complete as to its terms and conditions.

King’s deposition testimony and a letter from Sheraton to King plainly demonstrated that there was no contract. The parties only anticipated working toward an agreement and Sheraton’s letter merely outlined its conditions. Further, the record shows the conditions had never been met. King did not complete the repairs on the yacht and apparently the other conditions were never satisfied.

The record shows there was no contract. See Jackson v. Easters, 190 Ga. App. 713, 714 (379 SE2d 610). Here, as King’s deposition testimony admitted, “[i]t wasn’t an agreement, it was anticipating our working together. . . .” Thus, it was only an unenforceable agreement to reach an agreement incomplete as to its terms and conditions. Demer v. Capital City Cable, 190 Ga. App. 40, 43 (378 SE2d 162); Jackson v. Easters, supra. Thus, Sheraton met its burden, OCGA § 9-11-56 (c), and the trial court did not err by granting the motion for summary judgment on this claim.

Case No. A89A2103

2. Sheraton’s cross-appeal contends the trial court erred by denying its motion for summary judgment on King’s claim for bodily injury and Urban Crisis Center’s claim for property damage. Sheraton asserts the trial court incorrectly ruled an expert witness’ affidavit could not be used to support a motion for summary judgment. Review of the trial court’s order shows that Sheraton misperceives the trial court’s decision. The trial court merely ruled this particular expert’s affidavit was not sufficient to support Sheraton’s motion for summary judgment. We agree.

In the first instance, the affidavit does not show the statements made therein are from the witness’ personal knowledge. OCGA § 9-11-56 (e). Also, the complaint alleged Sheraton negligently maintained and operated the dock and negligently allowed an oversized boat to use the dock when Sheraton should have known such a large boat would cause the dock to tear apart in a storm. The affidavit, however, goes only to the dock’s construction and not to its operation or maintenance. Consequently, it could not pierce the pleadings on those bases for imposing liability. See Reed v. Adventist Health Systems &c., 181 Ga. App. 750, 752 (353 SE2d 523).

Further, while the affidavit shows the witness’ qualifications as a mariner, the only attempt to qualify him as an expert in the construction of docks is the statement that he was a licensed dock builder and familiar with proper construction of docks. Even assuming the expert was qualified, the affidavit does not establish when he examined the dock or that he was personally familiar with the dock before the events giving rise to these claims. In the same manner, the statements in the affidavit concerning the storm neither indicate the witness’ qualifications to give his opinions nor show the factual basis for the statements. See Mingledolph v. Univ. Emergency Physicians, 174 Ga. App. 75, 76 (329 SE2d 222).

Decided February 22, 1990.

Charles R. Floyd, Jr., for appellants.

Hermann W. Coolidge, Jr., for appellee.

Sheraton failed to meet its burden as a defendant moving for summary judgment (see OCGA § 9-11-56 (c); Corbitt v. Harris, 182 Ga. App. 81 (354 SE2d 637)), and therefore, the trial court did not err by denying the motion.

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A89A2150.
    WEST v. THE STATE.
    (391 SE2d 673)
   Cooper, Judge.

Appellant was convicted of violating the Georgia Controlled Substances Act by trafficking in cocaine. Appellant’s sole enumeration of error is the trial court’s denial of his motion to suppress.

The arresting officer testified that he received a call from a confidential informer, known by the officer to be reliable, who stated that two black males, driving a dark colored, older model car with one taillight out, were trying to sell crack cocaine. The informer stated that one of the individuals was wearing a black outfit with a white coontail cap; that the other individual was believed to be from the Riceboro area; and that he had seen cocaine in the presence of appellant. The officer immediately began to look for the vehicle in the general area indicated by the informant, and located a car fitting the description at a local club. When the vehicle left the club, the officer saw that it had one taillight out, that it was occupied by two black males, and that it was travelling in the direction of Riceboro. The officer stopped the car, and upon approaching the car, saw that appellant had on a black outfit, and that a white coontail cap was on the back seat of the car. The officer asked appellant, seated on the passenger side of the vehicle, to step out of the car, at which time the officer noticed a plastic bag containing a cream colored substance protruding from the top of appellant’s boot. The officer removed the plastic bag from appellant’s boot, observed that the substance appeared to be crack cocaine, and placed appellant under arrest. During questioning at the police station, appellant gave a written statement that he got the cocaine from a man in a nightclub.

Appellant contends that the evidence seized during the stop and the subsequent confession should be suppressed. Appellant argues that the warrantless search was illegal because there was no probable cause to stop the car, and because the officer had time to get a warrant. We disagree. “ ‘Probable cause’ is not the only standard to apply to the reasonableness of the stop of an automobile.” State v. Bassford, 183 Ga. App. 694, 698 (359 SE2d 752) (1987). An individual’s freedom to use public highways is circumscribed by the state’s police power where the officer has specific and articulable facts which warrant a stop of the vehicle to investigate the circumstances which provoke a reasonable and founded suspicion. United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). “[W]hat is a ‘reasonable articulable ground’ for the detention may be less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment. [Cit.]” Allen v. State, 140 Ga. App. 828 (1) (232 SE2d 250) (1976). In Radowick v. State, 145 Ga. App. 231 (3) (244 SE2d 346) (1978), this court held that where an officer has an articulable suspicion that the defendant possessed contraband by reason of the explicit and detailed information provided by an unknown informant, which was verified in part by the observations of the officer, a “Terry-type” stop is justified to obtain more information and investigate the circumstances that provoked the suspicion. In the case at bar, the officer had a reasonable and articulable suspicion, based on the detailed information provided by a reliable informant and the officer’s subsequent verification of part of the information, that appellant would be transporting cocaine. Thus, the brief, investigatory stop was authorized. See State v. Bass-ford, supra.

The officer’s search of appellant after the stop was also lawful. “Where it is immediately apparent that the item involved is contraband, an officer may seize what is in plain sight if he is in a place he is constitutionally entitled to be. [Cit.]” Griffin v. State, 180 Ga. App. 189, 190 (348 SE2d 577) (1986). The officer’s observation of a plastic bag containing a cream colored substance in appellant’s boot, and the officer’s past experience in seeing cocaine, together with the information related to him by the informant, provided a totality of the circumstances sufficient to establish probable cause. Griffin u. State, supra. Accordingly, we find no error in the trial court’s denial of appellant’s motion to suppress.

Decided February 22, 1990.

John E. Pirkle, for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

Judgment affirmed.

Been, P. J., and Birdsong, J., concur.


author: Pope, Judge.

text:
    A89A2252.
    SCHMIDT et al. v. PARNES.
    (391 SE2d 459)
   Pope, Judge.

This case involves a claim for medical (dental) malpractice. In July 1981 plaintiff Linda Schmidt had permanent crowns placed on teeth numbers 15, 18 and 19 by defendant Erwin R. Parnés, D.D.S. Schmidt visited defendant’s office several times over the next three years for other routine procedures, such as cleanings and having fillings placed in her teeth. According to his uncontradicted deposition testimony, on July 14, 1984, defendant suggested that the margins be redone on the crowns which had been placed on teeth numbers 15, 18 and 19 but Schmidt indicated she did not want to undergo the procedure at that time. In August 1984 defendant placed a crown on tooth number 31; in November 1985 defendant performed a root canal on that tooth. In December 1986 Schmidt contacted another dentist, presumably because of her dissatisfaction with treatment rendered to her by defendant.

On June 26, 1987, Schmidt and her husband (hereinafter referred to as plaintiffs) filed the present action for medical malpractice and loss of consortium based on their contention that defendant was negligent in furnishing dental treatment to Schmidt. Defendant filed a motion for summary judgment in response to which plaintiffs filed the affidavit of their expert witness who averred that the placement of the crowns on teeth numbers 15, 18 and 19 in 1981 was negligent. Plaintiffs’ expert further averred that defendant should have observed and repaired the open margins around these crowns and that Schmidt had suffered gum disease, bone loss and abscesses because of defendant’s failure to repair these open margins. On August 30, 1988, the trial court granted defendant’s motion for summary judgment finding, inter alia, that the applicable statute of limitation had expired and that the action was barred by the statute of ultimate repose and abrogation. We affirm.

1. “The statute of limitation relevant to this action is OCGA § 9-3-71 as amended July 1,1985. See Hunter v. Johnson, 259 Ga. 21 (376 SE2d 371) (1989). Subsection (a) of that section permits a medical malpractice action to be filed within two years after the resulting death or injury arising from the alleged negligent or wrongful act or omission. Subsection (b) provides, however, that ‘(n)otwithstanding subsection (a) of this Code section, in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.’ Consequently, [plaintiffs’] action, having been filed more than five years after the alleged negligent act, would be precluded by the statute of repose codified in OCGA § 9-3-71 (b).” Lasoya v. Sunay, 193 Ga. App. 814, 815 (389 SE2d 339) (1989).

Decided February 22, 1990.

Neely & Player, Ronald D. Reemsnyder, David C. Marshall, Mary F. O’Malley, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Allen F. Harris, for appellee.

Plaintiffs argue, however, that the statute of limitation or repose should have been tolled because the negligence here was in the nature of a continuing tort, which, plaintiffs contend, is analogous to the situation which occurs when a patient’s injury in a medical malpractice action has been concealed by the fraud of the tortfeasor. See Hill v. Fordham, 186 Ga. App. 354, 358 (367 SE2d 128) (1988). However, “the statute of limitation [or repose] is not tolled when the plaintiff knew all facts necessary to show malpractice before the running of the period of limitation [or repose].” Hendrix v. Schrecengost, 183 Ga. App. 201, 203 (358 SE2d 486) (1987). In this case defendant’s deposition testimony is uncontradicted that he warned Schmidt in June 1984 that there was a problem with the margins around the crowns on teeth numbers 15, 18 and 19 and that she needed to have them redone, but plaintiff declined to have the work performed at that time. “The statute of limitation or repose is not tolled where there is nothing in the record to suggest that plaintiff was prevented from learning of the doctor’s alleged negligence. . . . Shved v. Daly, [174 Ga. App. 209 (329 SE2d 536) (1985)]. Hendrix v. Schrecengost, supra at 203. See also Cannon v. Smith, [187 Ga. App. 434, 437 (370 SE2d 529) (1988)]; Beaver v. Steinichen, 182 Ga. App. 303 (355 SE2d 698) (1987); Bray v. Dixon, 176 Ga. App. 895, 898 (338 SE2d 872) (1985).” (Punctuation omitted.) Lasoya v. Sunay, supra at 817. Consequently, the order of the trial court awarding summary judgment to defendant is affirmed.

2. Because of our holding in Division 1, it is unnecessary for us to consider plaintiffs’ remaining enumerations of error.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A2357.
    GRIFFIN v. STATE OF GEORGIA.
    (391 SE2d 675)
   Birdsong, Judge.

Appellant, Marvin Griffin III, as surety for four named individuals, appeals the order of the trial court denying appellant’s motion to dismiss bond forfeiture in which a rule absolute was issued.

The record reflects that appellant, as surety, executed bonds on four named individuals who subsequently did not appear. The bonds were of a standard form, which gave notice of the initial dates and times appellant’s principals would be required to appear to answer the averred offenses, but also required that they appear for such purpose “from day to day and term to term thereof until discharged by law.” The State initiated proceedings for forfeiture of bond, under OCGA § 17-6-70 et seq. As proper notices apparently were not delivered as required by statute, forfeiture judgments were vacated and writs fi fa cancelled. Thereafter, the State reinitiated forfeiture proceedings and issued new notices, and a hearing on bond forfeiture was held.

During the course of the hearing, appellant objected to the reinitiated bond forfeiture proceedings. This objection was treated by the trial court as a motion to dismiss the bond forfeiture and taken under advisement. At the conclusion of the hearing the State moved for “a judgment rule absolute” in each case, and rule absolute was granted. Subsequently, the trial court issued its order denying appellant’s motion to dismiss bond forfeiture.

Appellant asserts that the trial court erred in not ordering dismissal of the State’s reinitiated attempt to forfeit the bonds executed by appellant as surety. Held:

1. If the substance of appellant’s motion to dismiss was actually a motion to set aside judgment under OCGA § 9-11-60 (d), this court would lack jurisdiction to entertain this matter as a direct appeal. OCGA § 5-6-35 (a) (8). However, in view of the posture of this record, which includes the fact that appellant orally objected at the forfeiture hearing and the trial judge subsequently disposed of the issue after having taken the matter under advisement and issued rules absolute, we elect not to construe this motion in the appeal before us as a motion to dismiss within the meaning of OCGA § 5-6-35 (a) (8). OCGA § 5-6-30; compare Ace Bonding Co. v. State, 180 Ga. App. 261 (349 SE2d 15) (direct appeal from the overruling and dismissal of motion to set aside judgments of final forfeiture on bonds). In the interest of judicial economy, we will dispose of this direct appeal on the merits.

Decided February 22, 1990.

Wells & Aultman, Charles A. Aultman, for appellant.

Carl A. Veline, Jr., Solicitor, for appellee.

2. The issue presented appears to be one of first impression. A surety on a criminal bond or recognizance has the right to insist that his liability should be fixed upon him according to law. Garner v. Chambers, 75 Ga. App. 756, 758-759 (44 SE2d 507). However, the procedure used by the State in this case is not expressly prohibited by statute, and was in technical compliance with the express provisions of OCGA § 17-6-71. OCGA § 1-3-1 (c); compare AAA Bonding Co. v. State of Ga., 192 Ga. App. 684 (386 SE2d 50); see also Ace Bonding, supra at 262 (1) (no right of appellant violated by nine-month delay).

The record reflects that, subsequent to the vacation of the original bond forfeiture, appellant surety was given written notification of a new appearance date of April 21, 1989, for each of his four principals. Scire facias was issued within 72 hours after this new appearance date and served on appellant on April 24,1989, as to each principal. Bond forfeiture hearing was held and rules absolute issued as to each principal on June 30, 1989. The triggering dates for the applicable statutory notice and hearing provisions were not limited to calculation from the date of a principal’s initial time of required appearance and failure to appear. Rather, we interpret the statute as allowing initiation of the notice and hearing procedures after any time of required appearance and failure to appear thereat. In this regard, had the legislature intended that the statutory triggering dates for notice and hearing were to commence only from the initial date of required court appearance and failure to appear, this easily could have been expressed within the statute. See AAA Bonding, supra at 685.

Moreover, appellant has failed to make a sufficient evidentiary showing of harm in the record resulting from the procedure employed by the State. To obtain reversal of the judgment, “it is necessary not only to show error but injury.” Avary v. Auary, 202 Ga. 22 (1) (41 SE2d 314). Thus, assuming error occurred in this instance, it was harmless. See AAA Bonding, supra 684 (1); see also Jam Bonding Co. v. State of Ga., 184 Ga. App. 246 (361 SE2d 238).

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.


author: Beasley, Judge.

text:
    A89A1693.
    OVIEDO v. CONNECTICUT NATIONAL BANK.
    (391 SE2d 417)
   Beasley, Judge.

Oviedo appeals a final order of confirmation and approval of foreclosure sales of his real property in favor of The Connecticut National Bank.

The bank purchased Oviedo’s lots at foreclosure sale on October 4, 1988. Pursuant to requirements in the security deeds held by the bank prior to foreclosure, Oviedo was given timely written notice of the foreclosure sale and of the bank’s intention to claim attorney fees under OCGA § 13-1-11. Also prior to the sale, the bank ran the required advertisements.

On November 1, it presented its application for confirmation of the sales to a judge of the superior court of the county in which the land was located. On the same day, the court directed that notice be given of a hearing on December 13 on the application for confirmation. The bank’s counsel requested the sheriff of the county of Oviedo’s residence to serve the pleadings and order on Oviedo, which was done on December 6. By consent of the parties, the hearing was rescheduled for February 13, 1989, and notice of the new hearing date was served by mail on Oviedo’s counsel.

Oviedo’s contention is that OCGA § 44-14-161 (a) contains a thirty-day “statute of limitation” requiring that he be served with the application for confirmation within thirty days of the foreclosure sale and that the trial court erred in concluding that the statute did not contain such a condition.

The plain language of the statute does not impose this requirement for service of the report on the debtor within the thirty days. The thirty-day report to the judge is not intended to give notice to the debtor. See Goodman v. Vinson, 142 Ga. App. 420 (236 SE2d 153) (1977). The notice requirement for the debtor is that he be given at least five days notice of the confirmation hearing. OCGA § 44-14-161 (c); Goodman, supra at 421; see Parnell v. Etowah Bank, 144 Ga. App. 794, 795 (1) (242 SE2d 487) (1978). As in this case, this would include a copy of the report.

We recognize that the confirmation statute is in derogation of the common law, and must be strictly construed. First Nat. Bank &c. Co. v. Kunes, 128 Ga. App. 565, 566 (1) (197 SE2d 446) (1973). We also recognize that it is “a debtor’s relief Act,” Wall v. Fed. Land Bank of Columbia, 240 Ga. 236, 237 (240 SE2d 76) (1977), and that it is the debtor who seeks construction of the statute so as to favor him. However, the statutory language is plain and neither needs construction nor, if it needed construction, would it carry the meaning urged by appellant, which amounts to a foreign import. Finally, despite appellant’s suggestion, there is no indication of a legislative intent to incorporate within the reporting provision the time requirement of the Civil Practice Act, OCGA § 9-11-4 (c), for service on the debtor within five days from the day the report is presented to the judge.

Decided February 5, 1990

Rehearing denied February 23, 1990

Glennville Haldi, for appellant.

Hansell & Post, Lowell H. Hughen, for appellee.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A1837.
    ADCOCK v. THE STATE.
    (391 SE2d 438)
   Beasley, Judge.

Adcock was convicted of two counts of incest, OCGA § 16-6-22.

Count 1 charged sexual intercourse between father and daughter “between January 1, 1977 and September 15, 1984 . . . said crime of incest being unknown until September 16, 1987.” Count 2 alleged acts between September .16, 1984, and September 16, 1987. The indictment was returned on August 5, 1988. It named defendant and his daughter, Janice, but the charges against her were not pursued.

The evidence at trial, construed to uphold the verdict, was that Janice was defendant’s illegitimate daughter. Although he had told her he was her father, she began having sex with him in 1977 and she and her daughter began living with him in an Adairsville apartment in late 1977 or early 1978, leaving her husband in Rome. Defendant and Janice slept in one bedroom and the child slept in another. In 1980 they moved to defendant’s house in Adairsville. In 1980, defendant fathered a son by her, conceived in Las Vegas. Janice continued to cohabit with defendant until late 1987, when she moved out and filed a civil suit against him on September 16. The last intercourse occurred in May 1987.

1. Defendant filed a motion to dismiss Count 1 as outside the four-year statute of limitation, OCGA § 17-3-1 (c), based on defendant’s contention that law officers knew of the incest in the early 1980s, thereby removing Count 1 from the tolling provisions of OCGA § 17-3-2 (2). That section excludes from the running of the statute any period in which “the crime is unknown.”

At the conclusion of the pretrial hearing, the judge decided to submit the statute of limitation issue to the jury. See State v. Tuzman, 145 Ga. App. 481, 482 (2) (243 SE2d 675) (1978).

The tolling provision cited does not apply to any acts between 1977, when the daughter testified the first intercourse occurred, and November 1, 1982, when the provision was reenacted, because it was not in effect during this period. OCGA § 17-3-2 (2) originated in Ga. Code Ann. § 27-601 (4), a part of the Cobb Code. When Ga. Code Ann. § 26-503 (2) was enacted in 1968, it provided for tolling only for periods when the person committing the crime was unknown. Although Section 27-601 (4) was not expressly repealed by that section, repeal was implied. State u. Shepherd Constr. Co., 248 Ga. 1, 4 (Ila) (281 SE2d 151) (1981); State v. Benton, 168 Ga. App. 665, 666 (310 SE2d 243) (1983); cf. Kyles v. State, 254 Ga. 49, 51 (326 SE2d 216) (1985). Consequently, there was no tolling on the State’s ground of lack of knowledge from 1977 until the effective date of OCGA § 17-3-2 (2), November 1, 1982. Benton, supra.

Although there was some evidence of intercourse during the period August 6, 1984, to September 16, 1987, the court did not limit to this period the jury’s consideration of the indictment or the evidence. The record does not show that the jury convicted defendant of incest only during that time or that it did not convict him of incestuous acts occurring during the period barred by the statute, that being January 1, 1977, to November 1, 1982.

Therefore, the court erred as a matter of law in not granting the motion to dismiss and taking from the jury’s consideration Count 1 for the period from January 1, 1977, until November 1, 1982, there being no saving provision in effect for that period of time.

2. It is argued that evidence of venue as to Count 2 was legally insufficient. No motion for directed verdict was made on the issue of venue.

“Generally, criminal actions must be tried in the county where the crime was committed. OCGA § 17-2-2 (a). And, venue must be established beyond a reasonable doubt. Adsitt v. State, 248 Ga. 237 (282 SE2d 305) (1981). However, when the evidence is not conflicting and when no challenge to venue is raised at trial, slight evidence is sufficient to prove venue. Jones v. State, 245 Ga. 592 (266 SE2d 201) (1980).” Minter v. State, 258 Ga. 629 (373 SE2d 359) (1988).

In addition to the evidence set out above, there was evidence that defendant and Janice moved into his house on Nolan Street in 1980 and continued to engage in sex twice weekly until the last time in May 1987. There was sufficient evidence from Janice and her daughter that this house was located in Bartow County. Loftin v. State, 230 Ga. 92, 94 (2) (195 SE2d 402) (1973); Hunter v. State, 191 Ga. App. 219, 220 (381 SE2d 525) (1989); Woodruff v. State, 191 Ga. App. 338 (381 SE2d 582) (1989).

3. Defendant enumerates error in the court’s “suggesting in its charge . . . that paternity was an issue in the indictment.” During the trial, the state introduced evidence of the conception of Jason, which admittedly took place in Las Vegas, as a like act, and that a paternity test showed a 99.74 percent probability that defendant was the father. Jason’s paternity was evidence of a similar act. There was also evidence of a 99.93 percent probability that defendant was the natural father of Janice, Jason’s mother, which fact was an element of the charged crime. The court, during its instructions on the use of such evidence, instructed the jury that no certain percentage was necessary to prove paternity and that paternity was an issue for their determination.

The charge was not objected to when the court inquired, Bryant v. State, 256 Ga. 273, 274 (1) (347 SE2d 567) (1986); Allen v. State, 177 Ga. App. 600, 603 (340 SE2d 246) (1986), nor was it raised in the motion for new trial and is considered only under OCGA § 5-5-24 (c).

“It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. [Cits.]” Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982). So considered here, it is clear that the now objected-to charge related only to the jury’s consideration of the like act and to the mother’s parentage and was not error. Bentley v. State, 179 Ga. App. 287, 288 (2) (346 SE2d 98) (1986).

4. The fourth enumeration deals with the court’s failure to charge defendant’s request on mistake of fact, which was objected to.

Defendant did not testify. His doctor testified that he had treated defendant beginning in December 1987 for problems with impotency and in his opinion defendant could not have satisfactorily engaged in sex in May 1987, although the doctor admitted that his conclusion was partially based on defendant’s subjective statements.

The court correctly refused to give the charge on the ground that there was no evidence that defendant labored under the impression that Janice was not his daughter. Defendant relies for his argument upon a copy of the dismissal of a bastardy warrant brought against him in 1950 by Janice’s mother. Such a failure to bind over is not a final judgment in defendant’s favor which would amount to collateral estoppel on the issue of his paternity. Moore v. State, 254 Ga. 674, 675 (333 SE2d 605) (1985). Further, Janice testified that, beginning when she was five years old, defendant repeatedly acknowledged, his paternity, and her daughter said defendant called Janice “daughter” during the time they lived together. In fact, defendant legitimated her in 1986.

Also, when mistake of fact is not the sole defense, as it was not here, it is not error to refuse to charge. Abelman v. State, 185 Ga. App. 278, 279 (2) (363 SE2d 764) (1987); Carswell v. State, 171 Ga. App. 455, 466 (5) (320 SE2d 249) (1984).

5. The last two enumerations deal with the charge on the statute of limitation, which was involved with Count 1. Since a retrial is possible on Count 1 for the period from November 1,1982, until September 15, 1984, and the errors alleged may recur, we address them.

Decided February 15, 1990

Rehearing denied February 23, 1990

Cook & Palmour, Bobby Lee Cook, David N. Vaughan, Jr., Velma C. Tilley, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

These enumerations allege error in the court’s failure to charge that statutes of limitation are to be liberally interpreted in favor of the defendant and that the court erred in using in its charge an “arcane quote.”

Defendant’s fourth request dealt with this issue but did not include the “liberal interpretation” language. Defendant’s charge as requested was given with additional language added by the court. Defendant orally requested during the charge conference that the court instruct that the statute was to be liberally interpreted in favor of the defendant. The court indicated it would give a charge along those lines.

The charge as given in part was: “Criminal limitation statutes are to be liberally interpreted in favor of repose and in favor of the statute of limitations operating.”

The only objection voiced after the charge was that defendant’s counsel did not understand what the phrase using “repose” meant and requested a recharge using “liberally interpreted in favor of defendant.”

Considering the charge as a whole, it was clear and fully instructed the jury regarding the defense of the statute of limitation. The fact that defendant preferred one word and the court used another does not make the charge as given error. A jury of average intelligence would not have been confused by it. Williams v. State, 180 Ga. App. 854 (1) (350 SE2d 837) (1986).

Judgment affirmed in part and reversed in part.

Carley, C. J., and McMurray, P. J., concur.


author: Sognier, Judge.

text:
    A89A1844.
    MARK SINGLETON BUICK, INC. v. TAYLOR.
    (391 SE2d 435)
   Sognier, Judge.

Clifton H. Taylor brought suit against Mark Singleton Buick, Inc. for alleged breach of warranty arising from a lease agreement for a motor vehicle. We granted Singleton Buick’s application for interlocutory appeal from the trial court’s denial of its motion for summary judgment or partial summary judgment.

The basic facts underlying the transaction are not disputed. On February 11, 1984, appellant and appellee entered into a written agreement whereby appellant agreed to lease a 1984 Buick Century station wagon to appellee in exchange for payments of $232 per month for 48 months. Appellee was obligated to pay the taxes and maintain insurance on the vehicle, make all necessary repairs, and return the car to the lessor at the expiration of the lease term. After execution of the agreement, appellant sold the car to Trust Company Bank (the Bank) and assigned its rights as lessor to the Bank. Appellant repaired and serviced the car numerous times between February 1984 and May 1985, but refused to make any further repairs. After that time, the record discloses only that the vehicle was towed to appellant’s lot, where it remains.

1. Appellant contends the trial court erred by denying its motion for summary judgment made on the basis that the contract between the parties expressly excluded all express or implied warranties. Paragraph 12, the lease provision at issue, states that “[i]t is expressly agreed and understood (a) that . . . [APPELLANT] AND ITS ASSIGNEE . . . MAKE NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE CONDITION OF THE LEASED VEHICLE OR ANY PART OR ACCESSORY THEREOF, ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, or as to any patent or latent defects in material, workmanship or otherwise . . . and (b) that the only warranties applicable to any Leased Vehicle are warranties made by the manufacturers or its (sic) dealers and representatives, and that [appellee’s] rights under any manufacturer’s new vehicle warranty shall not be impaired hereunder.”

Contrary to the assumption made by both parties, we do not find that this provision must meet the requirements of OCGA §§ 11-2-316 (2) and 11-1-201 (10) regarding exclusion of implied warranties arising under OCGA §§ 11-2-314 and 11-2-315 because the agreement between the parties is a true lease, not a contract for the sale of goods. See Mejia v. C & S Bank, 175 Ga. App. 80 (332 SE2d 170) (1985); Mays v. C & S Nat. Bank, 132 Ga. App. 602, 609 (208 SE2d 614) (1974), overruled on other grounds Mock v. Canterbury Realty Co., 152 Ga. App. 872, 879 (264 SE2d 489) (1980). Appellee leased the vehicle for four years, title remained with the assignee, and appellee was required to surrender the car at the expiration of the lease term, there being no option to purchase it. “Nowhere therein can it be construed that the parties contemplated a sale, an option to purchase, or creation of a security interest, [cits.],” McGuire v. Assoc. Capital Svcs. Corp., 133 Ga. App. 408, 411 (210 SE2d 862) (1974), and thus neither the implied warranty provisions nor the exclusion rules therefor of the Uniform Commercial Code apply to the agreement at issue. See id.; see also Mejia, supra at 82.

It is clear from the terms of the lease agreement that a contract for hire as defined in OCGA § 44-12-60 was created, with appellant as bailor and appellee as bailee. See James v. Mack Trucks, 146 Ga. App. 689 (1) (247 SE2d 215) (1978). Consequently, the relationship between appellant and appellee is governed by the lease terms, McGuire, supra at 411, and by the statutory obligations of a bailor under OCGA § 44-12-63. See James, supra at 689-690 (1). While appellant’s liability may be excluded by a contractual exculpatory clause provided the clause is not contrary to public policy, Hall v. Gardens Svcs., 174 Ga. App. 856, 857 (332 SE2d 3) (1985), we cannot conclude from the evidence before us that appellant has no warranty obligation to appellee. Although paragraph 12 (a) of the lease agreement purports to exclude all express and implied warranties, paragraph 12 (b) specifically preserves the warranties made by the manufacturer “or its dealers and representatives,” and appellant was clearly a “dealer.” When this ambiguity is construed against appellant, the drafter of the lease, Marjon Assoc. v. Leasing Intl., 174 Ga. App. 679, 680 (331 SE2d 20) (1985), there is a jury question as to whether appellant was obligated under the “dealer” warranties because appellant has produced no evidence to show either that it was not obligated under warranties made as a “dealer” or that if warranties were made, they had expired or otherwise were not applicable to the dispute at issue. Compare Freeman v. Hubco Leasing, 253 Ga. 698, 700-702 (324 SE2d 462) (1985) (dealer and assignor of an automobile lease which contained an exclusion of warranty clause identical to that in the instant case was denied summary judgment because the clause did not eliminate the dealer’s obligation under the manufacturer’s warranty to repair manufacturer’s defects) with Southern Protective Prods. Co. v. Leasing Intl., 134 Ga. App. 945, 948 (3) (216 SE2d 725) (1975) (lease exculpatory clause found to exclude duty at issue).

On a motion for summary judgment the respondent is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence even when the respondent is the party upon whom the burden of proof at trial would lie. Georgia Intl. Life Ins. Co. v. Huckabee, 175 Ga. App. 343, 345 (333 SE2d 618) (1985). The movant must show that “there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law,” OCGA § 9-11-56 (c), and when, as in the case at bar, the movant is the defendant, it “has the additional burden of piercing the plaintiff’s pleadings and affirmatively negating one or more essential elements of the complaint. [Cits.]” Corbitt v. Harris, 182 Ga. App. 81, 83 (354 SE2d 637) (1987). Our review of the sparse record persuades us that appellant has failed to carry this burden, and accordingly we affirm the trial court’s denial of appellant’s motion for summary judgment on the breach of warranty issue. Freeman, supra at 702 (1).

2. However, we do agree with appellant that the trial court erroneously denied its motion for partial summary judgment on the issue of exclusion of consequential damages. The lease agreement provides that appellant “shall not be liable ... for any loss of profits or time, or other consequential damages resulting from any theft, damage, loss, defect or failure of any Leased Vehicle, or through the recovery, repair, adjustment, service or replacement of any Leased Vehicle.” To the extent that consequential damages are recoverable in breach of contract actions, see QCGA § 13-6-8, a clause excluding such damages is valid and binding unless prohibited by statute or public policy. See Hall, supra at 857; see also OCGA § 1-3-7. As the language in the clause at issue is not contrary to public policy, see generally Southern Protective Prods., supra at 947-948 (3), we find that appellant was entitled to partial summary judgment in its favor on any claims for consequential damages except to the extent appellant may be obligated for such damages under the separate warranty agreement between appellee and the manufacturer (see Division 1).

Judgment affirmed in part and reversed in part.

Banke, P. J., and Pope, J., concur.

On Motion for Rehearing.

On motion for rehearing, appellant for the first time presents the argument that because the invoice issued pursuant to appellant’s sale of the car to the Bank expressly disclaimed all dealer warranties, it has no warranty obligation to appellee. However, pretermitting the question of whether that document, which was attached as an exhibit to the pretrial order, was properly before the trial court on summary judgment, and whether its disclaimer indeed resolves the issue of a dealer warranty, the invoice, which apparently was executed as part of a simultaneous transaction among appellant, appellee, and the Bank, states that “[a]ny warranties on the [car] are those made by the manufacturer.” The complaint and answer filed below indicate that the manufacturer did provide a warranty on the vehicle, and the service thereunder was provided by appellant. Appellee’s contention in the pretrial order is that this warranty service was not performed properly, while appellant contends that it has met its obligations under the manufacturer’s warranty and that the warranty has now expired. As neither party offered any testimony on this issue, we conclude that the question of appellant’s performance of its obligations to service the manufacturer’s warranty cannot be resolved on this motion for summary judgment.

Decided February 12, 1990

Rehearing denied February 23, 1990

Moore & Rogers, William R. Johnson, J. Brian O’Neil, for appellant.

Gaines C. Granade, for appellee.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A89A1772.
    ATLANTIC NATIONAL BANK OF FLORIDA v. CHANCE et al.
    (391 SE2d 677)
   McMurray, Presiding Judge.

Plaintiff brought suit against defendants in the Superior Court of Camden County, Georgia, to domesticate a Florida judgment. Defendants answered the complaint and denied liability, asserting, inter alia, the Florida court which rendered the judgment lacked in personam jurisdiction.

Plaintiff moved for summary judgment. In support thereof, plaintiff filed authenticated copies of (1) a Florida judgment which plaintiff obtained against defendants on October 12, 1982; (2) an order entering a default against defendants in the Florida action; (3) an affidavit of return of service demonstrating that service of the Florida action was made upon defendants by the Camden County sheriff’s office; and (4) a summons requiring defendants to answer the Florida action. The Florida judgment recites that copies of the judgment were furnished to defendants at a Waverly, Georgia address.

The trial court denied plaintiff’s motion for summary judgment and certified its ruling for immediate review. We granted plaintiffs application for an interlocutory appeal. Held:

In Toledo Center &c. Covering v. Richfield Carpet Mills, 176 Ga. App. 400 (336 SE2d 320), we stated: “ ‘ In a suit in this State upon a cause of action arising out of a judgment rendered in a sister State, it is not necessary to allege or prove an authenticated copy of the record of the entire proceedings, but a prima facie case is made by alleging and proving a properly authenticated copy of the judgment itself. (Cits.)’ Heakes v. Heakes, 157 Ga. 863 (2) (122 SE 777) (1924). Thus, appellant in the instant case was authorized but not required to introduce the entire record of the proceeding in the Louisianá court. With specific regard to the existence of jurisdiction, our Supreme Court has also held: ‘Where the lack of jurisdiction in the court of another State does not appear on the face of the record (of the foreign proceedings) . . . , the jurisdiction of such foreign court will be presumed by the courts of this State. (Cits.)’ (Emphasis supplied.) Heakes v. Heakes, supra at 863 (3). Compare Allied Fin. Co. v. Prosser, 103 Ga. App. 538 (119 SE2d 813) (1961) (lack of jurisdiction appearing on face of the foreign record introduced by the judgment creditor). As a general proposition, the cases thus hold that where a properly authenticated copy of a foreign judgment or record is introduced and the lack of jurisdiction does not appear on its face, the plaintiff has made out a prima facie case which the defendant must then rebut or suffer the entry of a domestication judgment against him. Minor v. Lillie Rubin, Inc., 84 Ga. App. 112 (65 SE2d 691) (1951). See also Sullivan v. Douglas Gibbons, Inc., 58 Ga. App. 708 (199 SE 554) (1938), aff’d 187 Ga. 764 (2 SE2d 89) (1939).

“The cases recognize but one exception to this general rule. That exception exists when, on the face of such evidence as is introduced by the judgment creditor, it appears that the foreign judgment was entered against a nonresident of the forum state. ‘(W)here a judgment has been entered every presumption in favor of its validity must be indulged. This, of course, includes the inference that the court in which the judgment was entered had jurisdictional authority necessary for the purpose. However, the rule is not applicable in (every) case. “In suing on a judgment of a court of another state, if the declaration, petition, or complaint shows that the court rendering it was a court of record or court of general jurisdiction, it is not necessary to aver in terms that the court had jurisdiction of the parties or the subject matter, or to set out the facts conferring jurisdiction, as this will be presumed until disproved. (But) the rule has been held otherwise, however, where the record (in the foreign case) shows that the judgment was against a nonresident.” (Cits.)’ (Emphasis supplied.) Hartsog v. Robinson, 115 Ga. App. 824, 826-827 (156 SE2d 141) (1967). See also Lurey v. Jos. S. Cohen &c. Co., 86 Ga. App. 356 (71 SE2d 689) (1952).” Toledo Center &c. Covering v. Richfield Carpet Mills, 176 Ga. App. 400 (1), 401, 402, supra.

In the case sub judice, the lack of jurisdiction does not appear on the face of the record of the Florida proceedings. The Florida record presents, however, at the very least, a question of fact as to whether the judgment was entered against nonresidents of the State of Florida. After all, defendants were served with process in Camden County, Georgia and the Florida judgment recites that copies of the judgment were sent to defendants in Waverly,. Georgia.

“The burden is always on the movant for summary judgment, even as to such issues as the non-moving party might have the burden of proof at trial. Price v. B-Line Systems, 129 Ga. App. 34 (198 SE2d 328) (1973); It necessarily follows that when a collateral attack is raised as a defense in an action for domestication of a foreign judgment, the plaintiff-judgment creditor, in order to meet his burden as a successful movant for summary judgment, would be required to negate this defense. The mere production of evidence of the entry of a default judgment, which evidence also shows on its face that it was entered against a nonresident, would not meet the movant’s burden. Such evidence would not negate the defendant’s underlying right to pursue a collateral attack. A foreign judgment may be collaterally attacked for lack of jurisdiction whenever the defendant did not contest that issue in the foreign court, which circumstance would necessarily exist in the case of a default judgment. See Ramsey Winch Co. v. Trust Co. Bank, 153 Ga. App. 500, 501 (1) (265 SE2d 848) (1980).” Toledo Center &c. Covering v. Richfield Carpet Mills, 176 Ga. App. 400, 403, supra. Inasmuch as defendants in the case sub judice did not contest personal jurisdiction in the Florida court (judgment having been entered against them by default), it appears that they may collaterally attack the Florida judgment. Toledo Center &c. Covering v. Richfield Carpet Mills, supra. Compare Van Buskirk v. Great American Bank of Broward County, 175 Ga. App. 101 (332 SE2d 394), in which the Florida court, upon entering final judgment after default, specifically found it had jurisdiction of the parties.

Judgment affirmed.

Carley, C. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

1. The record shows without dispute that defendants in the Florida action had personal service of the suit yet failed to respond as summoned. The defendants cannot lie in wait and allow their opponents to obtain a judgment and then challenge the original jurisdiction when the judgment creditor seeks to domesticate the judgment, when the defendants have had a full and fair opportunity to contest jurisdiction in the first suit. By not denying jurisdiction when it is properly alleged, they admit. As reasoned in the analogous case of Aiken v. Bynum, 128 Ga. App. 212, 213 (2) (196 SE2d 180) (1973), [physical precedent but cited without reservation in Van Buskirk v. Great American Bank, 175 Ga. App. 101, 102 (332 SE2d 394) (1985), “[They] had actual notice of the suit and could have appeared for the limited purpose of challenging [jurisdiction]. ‘Allowing a case to go to default judgment is not better than allowing a case to be tried on the merits before coming in with a technical defense.’ ” The same principle is applied in Van Buskirk, supra at 102. It also reiterated: “According to Georgia law, . . . the defenses of lack of jurisdiction and insufficiency of process are waived where the defendant has notice of the suit and could have appeared to challenge personal jurisdiction, but elects to do nothing and suffers a default judgment. Echols v. Dyches, 140 Ga. App. 191 (230 SE2d 315).” Green Acres Discount v. Freid & Appell, 135 Ga. App. 816, 817 (219 SE2d 39) (1975), states the rule succinctly: “When a party is personally served he is subject to the in personam jurisdiction of the courts of a foreign state and cannot collaterally attack a judgment of such court. Drake v. Drake, 187 Ga. 423 (5) (1 SE2d 573).” Accord Tandy Computer Leasing v. Bennett’s Svc. Co., 188 Ga. App. 594, 595 (373 SE2d 647) (1988).

Decided February 23, 1990.

Eleanor R. Dotson, for appellant.

J. Robert Morgan, for appellees.

It appears, however, that something more is needed. The record must show that the matter of jurisdiction was at least alleged and proved in the foreign judgment case or that the court made such a finding; where this is not done, “ ‘the issue may be raised in Georgia in defense of an action on the judgment in a Georgia court.’ (Berry [v. Jeff Hunt Machinery Co., 148 Ga. App. 35 (250 SE2d 813)]; Process Systems v. Dixie Pkg. Co., 137 Ga. App. 452 (224 SE2d 103)).” Ramseur v. American Mgmt. Assn., 155 Ga. App. 340, 341 (2) (270 SE2d 880) (1980).

The Florida petition is not in the record, so the trial court could not know what it alleged, if anything, regarding jurisdiction, and consequently what facts in this regard, if any, defendants admitted by failing to respond. Also, since the deputy sheriff’s return of service states only that “a copy of the within petition” was served on defendants, the court could not know whether they also received the summons.

2. In the Georgia domestication action, the plaintiff creditor filed a request for admission of fact and authenticity of documents on July 21, having served it on July 19. Defendants did not reply to the same within 30 days as required by OCGA § 9-11-36 (a) (2) but instead, after the time had past, sought an extension which has not been ruled on. Even if these requests should be considered as admissions, see National Bank of Ga. v. Merritt, 130 Ga. App. 85, 86 (1) (202 SE2d 193) (1973), there is no request for admission of the Florida court’s jurisdiction over the defendants in the Florida suit.


text:
    A89A2002.
    CITY OF COLLEGE PARK v. ATLANTIC SOUTHEASTERN AIRLINES, INC.
    (391 SE2d 460)
   Birdsong, Judge.

Atlantic Southeastern Airlines, Inc. (ASA) sought a refund of the license taxes paid in 1984, 1985, and 1986, in the respective amounts of $19,307.75; $38,224.31; and $65,685.21, to the City of College Park. The trial court granted summary judgment to ASA for a refund of the 1985 and 1986 taxes, to the extent that the total amount of tax paid by ASA exceeds the tax which would have been due based on the number of employees of plaintiff, pursuant to Section 11-11 of the College Park City Code. The principal amount of judgment is $102,070.98.

The City of College Park appeals, on grounds that the assessments were not a tax but a proper business license fee based on gross receipts and therefore the refund claim made in 1987 was untimely, being lodged more than one year from the date of the payment of the license “fee.” See OCGA § 48-5-380. Judgment was not given ASA for a refund of the 1984 tax, presumably because the May 1987 refund claim exceeded the time for claim of a “tax” within three years, pursuant to § 48-5-380. ASA does not appeal that element of judgment, but College Park appeals the refund of 1985 and 1986 license “fees.” Held:

The trial court did not err in its judgment granting refunds to ASA for tax paid in 1985 and 1986.

We disagree with appellant City’s argument that these assessments were a license fee for which a refund claim must be made within one year, and not a tax for which a refund claim must be made within three years of payment. See OCGA § 48-5-380.

This assessment of “a tax based on either the total gross receipts of the business or on the business’ total number of employees, whichever assessment would be greater” (Code of City of College Park, § 11-11 (a)), was clearly not a license fee. The immediate preceding ordinance, § 10-10, assessed a “flat fee” license fee of $50 for each person or business engaged in business, without regard to type of business. This is the precondition to do business exacted by the City, securing the “right to do business” which would otherwise be illegal. See, e.g., City of Hawkinsville v. Wilson & Wilson, 231 Ga. 110 (200 SE2d 262); Silverman v. Mayor &c. of Savannah, 125 Ga. App. 41, 47 (186 SE2d 447). No other inference can be made as to the purpose of that ordinance. The “fee” set by the next following city ordinance, § 11-11, is exacted “in addition to” the business license flat fee of $50. Unless the City intended to extract two business license fees, this second ordinance cannot be construed as a prerequisite business license fee. It is a tax, variable in amount, based upon the volume of business revenues or number of employees, whichever is greater. A penalty ordinance (§ 11-16 (5)) authorizes suspension or rescission of the “license” to do business if either assessment is not paid; therefore, at least in this case, it is specious for appellant City to argue that assessments under both § 11-10 and § 11-11 are business license fees on the basis that without payment the doing of business would be illegal. Cf. Silverman, supra.

In any case, whatever it is called, the assessment in § 11-11 based upon gross receipts has been nullified by 49 USCA § 1513 which provides: “No State (or political subdivision thereof. . .) shall levy or collect a tax, fee, head charge, or other charge, directly or indirectly ... on the carriage of persons traveling in air commerce or on the sale of air transportation or on the gross receipts derived therefrom. ...” (Emphasis supplied.)

Decided February 23, 1990.

Glaze, Fincher & Bray, George E. Glaze, Steven M. Fincher, Laurel E. Henderson, for appellant.

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, Perry A. Phillips, for appellee.

Thus, these assessments are illegal. Since it is clear they are a tax, assessed “in addition to” the flat fee license tax preconditioning the privilege to do business, appellee was entitled to a refund for the payments it timely claimed within three years of payment.

We find no merit in the City’s argument that the notice of refund claim was deficient on grounds it failed to state a “summary statement of the grounds upon which the taxpayer relies,” pursuant to OCGA § 48-5-380. The notice here clearly stated such a summary of “grounds upon which the taxpayer [relied].” Assuming arguendo the refund was authorized under different grounds than what was first perceived, the notice was sufficient to apprise the City of a refund claim. There is no requirement that the “summary of grounds” must be the exact grounds upon which refund is ultimately authorized; such a requirement would require the taxpayer to become a seer. Appellant has not shown it was disadvantaged by the form of notice, and did not complain of it until appellee moved for summary judgment. In view of this ruling, holding the notice to be in substantial compliance with § 48-5-380 (see OCGA § 1-3-1), we find it unnecessary to determine whether federal law preempts the provisions of § 48-5-380 which conditions the right to refund of this illegal tax. And, as ASA does not appeal the denial of the 1984 tax refund, the issue is moot.

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.


text:
    A89A2156.
    ENGLISH RESTAURANT, INC. et al. v. A. R. II, INC.
    (391 SE2d 462)
   Birdsong, Judge.

English Restaurant, Inc., and W. Glen English appeal from the grant of summary judgment to A.R. II, Inc., on its claims arising from their purchase from A.R. II of the Aspen Restaurant. The trial court also granted summary judgment to A.R. II on appellants’ counterclaims for rescission of the contract.

Appellants contracted to buy the restaurant, and a promissory note, executed by English Restaurant and personally guaranteed by W. Glen English, was delivered to A. R. II. When the required payments were not made, A. R. II sued English Restaurant on the note and security agreement and sued W. Glen English on his personal guaranty.

The defendants answered admitting execution of the note and security agreement, but denying liability, and raising as defenses breach of the contract clause providing the seller had paid all taxes owed before closing. English Restaurant also asserted that A. R. II had misrepresented the weekly income from the restaurant, and filed a counterclaim for rescission of the contract because of the misrepresentations about the taxes and the income from the restaurant.

A. R. II moved for summary judgment. The motion was supported by the agreement of purchase and sale, the promissory note, and the security agreement, the personal guaranty, W. Glen English’s deposition, and the pleadings and discovery materials filed of record. Appellants’ response to the motion contended genuine issues of material fact remained on whether the contract should be rescinded and contended that summary judgment also should not be granted because any damages owed A. R. II would be offset by the expected recovery on the counterclaim for rescission. Held:

1. Even according to appellants all the benefits to which they are entitled (see Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 29 (343 SE2d 680); Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 603 (203 SE2d 173)), A. R. II established it was entitled to recover on the note, the security agreement, and the personal guaranty because appellants’ answers to the complaint admitted the promissory note, the security agreement, and the personal guaranty and Mr. English’s deposition admitted the required payments were not made. See Yeomans v. Coleman &c. Drug Co., 167 Ga. App. 646, 647 (307 SE2d 121); Hyman v. Horwitz, 148 Ga. App. 647 (252 SE2d 74). Appellants’ argument that the motion was not properly supported is without merit. OCGA § 9-11-56 (c) permits motions for summary judgment to be supported by affidavits, but does not require them.

The response relied on Mr. English’s affidavit stating that during the negotiations in February 1987, A. R. II produced profit and loss statements for the first six months of 1986 showing a certain gross weekly income and gave verbal assurances they were accurate, but the actual income from the restaurant was much less. Because of this, appellants contend a genuine issue of material fact exists on whether they were fraudulently induced to buy the restaurant.

Our consideration is limited to the record and we cannot consider factual allegations in appellants’ brief that are not supported by the record. Behar v. Aero Med Intl., 185 Ga. App. 845 (1) (366 SE2d 223). Therefore, we must disregard appellants’ representations on what evidence they might have introduced.

Also, Mr. English’s affidavit must be considered in conjunction with his deposition testimony. That testimony shows he knew that after the last profit and loss statement another restaurant was operated in the facility, and he admitted no promises were made about the income. Giving appellants the benefit of inferring a difference in its gross weekly receipts creates an issue that the statements misstated the income, this still does not show a genuine issue of material fact. Beard v. McDowell, 174 Ga. App. 793, 794 (331 SE2d 104). Appellants could only rely on these representations if they were justified in doing so (Casgar v. C & S Nat. Bank, 188 Ga. App. 234, 235 (372 SE2d 815); B & W Pipeline v. Newton County Bank, 181 Ga. App. 684, 687 (353 SE2d 829)), and Mr. English’s deposition shows that he knew about the other restaurant, but did not review its financial records. Additionally, his deposition showed Mr. English was an experienced restaurant owner and operator and made his living that way for many years.

Under these facts, Mr. English’s affidavit does not show a genuine issue remains because it would be unreasonable for appellants to rely on these income statements. Thus, any misrepresentation of the gross weekly income would have no legal significance. Casgar, supra.

2. Mr. English’s affidavit also states that after the closing he discovered A. R. II owed taxes to the State of Georgia for the restaurant. From this, appellants assert that A. R. II breached the express warranty in the contract, that no taxes were owed, and therefore, the contract should be rescinded.

Again considering Mr. English’s affidavit in conjunction with his deposition, taken before his affidavit, the deposition stated he did not know what taxes were owed, who owed them, or for what period they were owed. All he knew was his application to change the liquor license on the restaurant was denied because of some unpaid state tax. His deposition states also the liquor license was in the name of the other restaurant operator and not A. R. II.

As Mr. English did not explain the contradictions between his affidavit and his deposition, the contradictory testimony rule applies and requires that his unexplained self-contradictory testimony be construed most strongly against him. Prophecy Corp., supra. Further, whether the testimony was self-contradictory and whether a reasonable explanation for the contradiction was given were questions for the trial court. Id. Therefore, applying the rule and eliminating the favorable portions of English’s testimony (Gentile v. Miller &c. Inc., 257 Ga. 583 (361 SE2d 383)), appellants’ rebuttal did not show that A. R. II breached the contract. Further, appellants also failed to show that a breach of this clause would entitle them to rescission.

Decided February 23, 1990.

Hurt, Richardson, Garner, Todd & Cadenhead,.E. Lewis Hansen, John W. Campbell, for appellants.

Crenshaw & Johnson, John R. Crenshaw, Timothy W. Johnson, James L. Matte, for appellee.

We cannot consider appellants’ argument that the motion should not have been granted because evidence may exist to support their claims. Appellants were obligated to present their evidence before the grant of summary judgment. They did not do so, and this still-to-be-found evidence presents no basis for reversing the trial court. Summer- Minter & Assoc., supra.

3. Because of our disposition of appellants’ claims in Divisions 1 and 2, their enumeration that the trial court erred by granting summary judgment to A. R. II while their counterclaim was pending is without merit. The record shows appellants did not comply with OCGA § 13-4-60, i.e., prompt offer to restore what appellants received under the contract, etc., and then did not establish the alleged breach of the warranty on the taxes would have authorized rescission of the contract. See OCGA § 13-4-62; Mayor &c. of Douglasville v. Hildebrand, 175 Ga. App. 434, 436 (333 SE2d 674) (physical precedent).

Therefore, the trial court did not err by granting summary judgment to A. R. II. At oral argument, however, A. R. II conceded that appellants are entitled to receive a set-off from the judgment for taxes paid after closing. Accordingly, we will affirm the judgment on condition that the trial court reduce the judgment by $5,149.17 to be credited to appellants.

Judgment affirmed on condition that the judgment be reduced by $5,149.17 which appellants paid in taxes; otherwise reversed.

Deen, P. J., and Cooper, J., concur.


text:
    A89A2162.
    CITY OF PEMBROKE v. HAGIN.
    (391 SE2d 465)
   Pope, Judge.

According to the trial court’s findings of fact, defendant Alfonso Hagin was hired in May 1986 by plaintiff City of Pembroke as a police officer. By law, a peace officer, in order to exercise the authority to make arrests, must, among other things, complete a basic training course established by the Georgia Peace Officer Standards & Training Council within twelve months of the date of his appointment as a peace officer. See OCGA § 35-8-9 (a). In order to fulfill this requirement, the City of Pembroke sent officer Hagin to the Police Officer’s Service Training Academy during January and February 1987. Before attending the academy, the police chief presented Officer Hagin with a one-page agreement which he was told he must sign in order to continue his employment. By the terms of the document, the City agreed to pay the costs of training on the condition that the officer remain employed by the City for a period not less than twelve months after graduation from the program. By signing the agreement, the officer promised to repay the City the sum of $1,800 representing “a portion of the total expense of the Police Officer’s attending the [training program]” in the event he voluntarily terminated his employment before the twelve-month period expired. Officer Hagin voluntarily resigned from employment by the City in August 1987 and, apparently, accepted employment with another law enforcement agency. The City brought suit to recover the $1,800 owed under the written agreement. The trial court granted judgment to defendant on the ground that the contract contravened the public policy of Georgia by shifting the expense of minimum training requirements for a peace officer from the law enforcement agency to the individual officer. The City appeals.

1. “ ‘(I)f there is one thing which more than another public policy requires, it is that men of full age and competent understanding, shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by the courts of justice. Therefore, you have this paramount public policy to consider — that you are not lightly to interfere with this freedom of contract.’ [Cit.] Tt is well settled that contracts will not be avoided by the courts as against public policy, except “where the case is free from doubt and where an injury to the public interest clearly appears.” ’ [Cit.]” Cash v. Street & Trail, 136 Ga. App. 462, 465-466 (221 SE2d 640) (1975). “The power of the courts to declare a contract void for being in contravention of a sound public policy is a very delicate and undefined power, and, like the power to declare a statute unconstitutional, should be exercised only in cases free from doubt.” Equitable Loan &c. Co. v. Waring, 117 Ga. 599 (1) (44 SE 320) (1903). “Unless prohibited by statute or public policy, the parties are free to contract on any terms and about any subject matter in which they have an interest, and any impairment of that right must be specifically expressed or necessarily implied by the legislature in a statutory prohibition and not left to speculation. [Cit.] A contract cannot be said to be contrary to public policy unless the General Assembly has declared it to be so, or unless the consideration of the contract is contrary to good morals and contrary to law, or unless the contract is entered into for the purpose of effecting an illegal or immoral agreement or doing something which is in violation of law.” Porubiansky v. Emory Univ., 156 Ga. App. 602, 603 (275 SE2d 163) (1980).

Decided February 23, 1990.

A. G. Wells, Jr., for appellant.

Lloyd D. Murray, for appellee.

We cannot conclude that the agreement in question is contrary to the express or implied purpose of the statutes addressing minimum training requirements for Georgia peace officers. The applicable statutes set forth the minimum standards for employment and minimum training for individual peace officers. E.g., OCGA §§ 35-8-9 and 35-8-10. OCGA § 35-8-17 authorizes the Georgia Peace Officers Standards & Training Council to bring a civil action against an individual officer who does not comply with the certification requirements (subsection b) as well as against the law enforcement unit employing such an officer (subsection c). We find no intent by the legislature in the applicable code sections to impose the financial burden of training a peace officer solely upon the law enforcement unit employing him. We note that pursuant to OCGA § 35-8-7 (20) the Georgia Peace Officer Standards & Training Council may reimburse counties and municipalities for the costs of sending officers to a peace officer training program. A county or municipality is not required to train each officer but may chose to hire individuals who have already met the statutory certification requirements.

We conclude that the agreement at issue in this case is reasonably related to the City’s interest in protecting its investment in training a new officer. In order to avoid the requirement of paying the amount specified in the agreement, the officer could simply have remained in his employment for twelve months. We hold the trial court erred in finding the agreement void for public policy reasons.

2. Because the trial court’s findings of fact show that the defendant entered into the agreement and left his employment before the twelve-month period had expired, plaintiff City of Pembroke is entitled to judgment in its favor.

Judgment reversed.

Banke, P. J., and Sognier, J., concur.


author: Banke, Presiding Judge.

text:
    A90A0053.
    DRAKE v. CLUTTER.
    (391 SE2d 473)
   Banke, Presiding Judge.

The appellant, Paul Drake, filed suit against the appellee, Tracy Clutter, seeking to recover possession of a Ford Mustang automobile. At the conclusion of a non-jury trial, the trial court found that Glutter was entitled to possession of the vehicle but ordered her to make regular lease payments to the appellant. The court entered its judgment on July 13, 1989, and on July 20, 1989, entered findings of fact and conclusions of law as an addendum to the judgment. The appellant filed a motion for new trial on July 27, 1989, and a hearing was scheduled on the motion for September 11, 1989. However, on September 7, 1989, prior to the scheduled hearing date, the appellant filed a notice of appeal. On September 11, 1989, the trial court dismissed the motion for new trial on the ground that it had lost jurisdiction of the case because of the filing of the notice of appeal. No appeal was taken from the latter order. Held:

Decided February 23, 1990.

Oxendine & Associates, John W. Oxendine, for appellant.

Tracy Clutter, pro se.

Richardson, Chenggis & Constantinides, George G. Chenggis, for appellee.

In Dept. of Transp. v. Rudeseal, 148 Ga. App. 179, 180 (251 SE2d 11) (1978), we held that “ ‘[a] notice of appeal from the judgment, filed while a motion for new trial is pending, and unaccompanied by a proper certificate for immediate review, confers no jurisdiction in the appellate court and results in a dismissal of the appeal.’ ” While it follows that the trial court was mistaken in its conclusion that it had lost jurisdiction to rule on the motion for new trial in the present case, it also follows that we are without jurisdiction to consider the present appeal.

Appeal dismissed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0058.
    REGENCY NISSAN, INC. v. TAYLOR.
    (391 SE2d 467)
   Birdsong, Judge.

Appellant, Regency Nissan, appeals from the judgment entered in favor of appellee William H. Taylor, Jr. Appellee brought suit for breach of warranty of title and for a violation of the Fair Business Practices Act (FBPA), OCGA § 10-1-390 et seq.

Appellee purchased a used pickup truck from appellant; the truck, a stolen vehicle, subsequently was confiscated by law enforcement authorities. Appellant denied actual knowledge that the automobile was stolen and asserted that, as an automobile dealer, it duly relied upon proof of ownership by matching the vehicle identification number (VIN) on the dashboard with the vehicle number on the certificate of title presented to it by another automobile dealer from whom it had purchased the vehicle. These numbers did match. However, the federal safety tag on the door was missing, the windshield VIN plate was not attached with Nissan rivets, and the confidential vehicle number and motor number (neither of which matched the VIN and vehicle identification number on the title) were not checked by appellant’s employees.

The trial court “in essence” granted appellant’s motion for directed verdict as to breach of warranty and elected not to instruct the jury concerning that claim. See generally OCGA § 11-2-607. The jury found against appellant as to appellee’s FBPA claim. Held:

1. Appellee’s motion to dismiss appeal on the grounds of appellant’s late filing of appellate brief is denied.

2. Appellant asserts that the trial court erred in failing to grant its motion for directed verdict as to the FBPA claim, on grounds that the appellee had failed to establish that appellant committed an intentional act.

In support of this enumeration of error, appellant, citing Gresham v. White Repair &c. Co., 158 Ga. App. 235, 236 (2) (279 SE2d 528), asserts that “[t]he FBPA does not apply where there is no volitional, unfair, or deceptive act.” In Gresham, this court found that the provisions of Code Ann. § 106-1210 (b) (now OCGA § 10-1-399 (b)) were not applicable where plaintiff failed to present evidence in support of her FBPA claim “of a volitional unfair or deceptive act or practice.” Suffice it to say that when used as technical legal terms the words “volitional” and “intentional” are not synonymous.

Conduct to be actionable under the FBPA must fall within that class of conduct made unlawful by OCGA § 10-1-393 (a), which proscribes unfair or deceptive acts or practices in trade or commerce. Larson v. Tandy Corp., 187 Ga. App. 893, 896 (371 SE2d 663). The court must first determine that the particular activity occurred in the conduct of consumer transactions and consumer acts or practices before determining whether the acts or practices in issue are unfair or deceptive. Id.

The question of “volition” arises in regard to this first step. This court consistently has held that “to be subject to direct suit under the FBPA, the alleged offender must have done some volitional act to avail himself of the channels of consumer commerce. The allegedly offensive activity must have taken place ‘in the conduct of . . . consumer acts or practices,’ i.e., within the context of the consumer marketplace.” (Emphasis supplied.) State of Ga. v. Meredith Chevrolet, 145 Ga. App. 8, 12 (244 SE2d 15); accord Benchmark Carpet Mills v. Fiber Indus., 168 Ga. App. 932, 934 (311 SE2d 216); Zeeman v. Black, 156 Ga. App. 82, 83 (273 SE2d 910). “Offering a product for sale by opening one’s door to the general public should trigger the prohibítions of the act if some deceptive act or practice were involved. ...” Benchmark, supra at 934. We find the transaction in this case did take place in the conduct of consumer acts or practices, i.e., within the context of the consumer marketplace. Compare Burdakin v. Hub Motor Co., 183 Ga. App. 90 (357 SE2d 839) with Paces Ferry Dodge v. Thomas, 174 Ga. App. 642 (331 SE2d 4).

We must now determine whether appellant’s conduct constituted unfair or deceptive acts or practices within the meaning of OCGA § 10-1-393 (a). Such conduct “would necessarily be attended by some [form of] reprehensible conduct on the part of the defendant.” Standish v. Hub Motor Co., 149 Ga. App. 365, 366 (254 SE2d 416). However, in assessing this issue, the FBPA is to be liberally construed and applied to promote its underlying purposes and policies, which are to protect consumers. OCGA § 10-1-391 (a).

A private FBPA claim has three essential elements: a violation of the act, causation and injury. Nims v. Otter, 188 Ga. App. 516 (2) (373 SE2d 396); Zeeman, supra at 86-87. The FBPA “abandons the two elements of the common law [tort of misrepresentation] most difficult to prove, scienter (knowledge of the deception) and intent to deceive.” Wm. Rothschild, 10 Ga. Law Rev., A Guide to Georgia’s Fair Business Practice Act of 1975, pp. 917, 926. However, a plaintiff who can show that the defendant committed an intentional violation is entitled to recover treble damages, so scienter and intent to deceive retain legal significance in FBPA litigation. 10 Ga. Law Rev., supra.

Moreover, OCGA § 10-1-391 (b) expressly states that “[i]t is the intent of the General Assembly that [the FBPA] be interpreted and construed consistently with interpretations given by the Federal Trade Commission in the federal courts pursuant to Section 5 (a) (1) of the Federal Trade Commission Act (15 USC Section 45 (a) (1)), as from time to time amended.” In Gimbel Bros. v. Fed. Trade Comm., 116 F2d 578 (4) (2nd Cir.), the court concluded: “It is in the public interest to prevent the sale of commodities by false and misleading statements. ... [A] deliberate effort to deceive is not necessary to make out a case of ‘using unfair methods of competition’ within the prohibitions of [Section 5 of the Federal Trade Commission Act of 1914, 15 USC § 45].” (Emphasis supplied.) See generally 55 AmJur2d, Monopolies, § 741.

Accordingly, we conclude that establishment of unfair or deceptive acts or practices, within the meaning of the FBPA, does not require proof of an intentional conduct on the part of the defendant. Appellant’s reliance on Attaway v. Tom’s Auto Sales, 144 Ga. App. 813 (242 SE2d 740) is misplaced.

It is equally true, however, that mere negligence is not an element of an FBPA claim. But, consistent with the requirement for liberal construction and application of the- FBPA (OCGA § 10-1-391 (a)), we find it would constitute an unfair business practice if, before merchandise is sold in the consumer marketplace, a seller is placed on reasonable notice that his claim of title to the merchandise could be legally defective and thereafter in blatant disregard of the rights of innocent purchasers fails to take reasonable measures to ascertain the true state of facts concerning title before consummating the sale. Compare Paces Ferry Dodge, supra at 643 (“there was evidence that the slightest attention on appellant’s part, equivalent to knowledge, would have uncovered the defect”) with Gross v. Ideal Pool Corp., 181 Ga. App. 483, 485 (352 SE2d 806) (a misrepresentation presupposes knowledge of the falsity); see 87 CJS, Trademarks, § 228 b.

Except in plain and indisputable cases, the question of whether a particular act or omission, or a series thereof, constitutes unfair or deceptive acts or practices within the meaning of OCGA § 10-1-393 generally is for jury resolution. See Credithrift of America v. Whitley, 190 Ga. App. 833, 837 (1) (380 SE2d 489). Considering the posture of this record, which includes evidence that appellant’s agent was timely contacted by a credit union office regarding the model number discrepancy on the vehicle VIN plate, we do not find this to be a plain or indisputable case. Construing the evidence to support the verdict and judgment, as we are required to do on appeal (Locke v. Vonalt, 189 Ga. App. 783 (1) (377 SE2d 696)), and applying the requisite standard for directed verdict (Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554)), we are satisfied that the trial court did not err in failing to grant appellant’s motion for directed verdict.

3. Appellant asserts that the trial court erred in failing to rule at the inception of trial that its offer of compromise was reasonable or that it should be submitted to the jury, in failing to allow parol evidence to clarify an ambiguous offer of compromise, and in failing to limit damages in light of defendant’s reasonable offer of compromise.

Pretermitting these issues, however, is the issue of whether appellant’s oral offer constituted a “written tender of settlement” within the meaning of OCGA § 10-1-399 (b).

OCGA § 10-1-399 (b) is plain and unambiguous on its face. This statute expressly requires that the tender of settlement be in writing. When a statute is found to be plain and susceptible of but one natural and reasonable construction, an appellate court has no authority to place a different construction upon it, but must construe it according to its terms. Ringewald v. Crawford W. Long Mem. Hosp., 258 Ga. 302, 303 (368 SE2d 490). We find that OCGA § 10-1-399 (b) speaks concisely in establishing the requirements for a “written tender of settlement”; it is so plain and unambiguous that judicial construction is both unnecessary and unauthorized, and the legislature’s clear intent that the settlement offer be in writing will not be thwarted by invocation of the rule of “substantial compliance.” Compare Bible v. Bible, 259 Ga. 418 (383 SE2d 108); see also Southern Guaranty Ins. Co. v. Goddard, 259 Ga. 257, 258-259 (379 SE2d 778). We find appellant’s offer did not meet the express statutory threshold requirement for a written tender of settlement, and accordingly, its assertions of error are without merit.

4. Appellant asserts that the trial court erred in incorporating the jury verdict into its order, as the verdict was excessive. Specifically, appellant asserts that a plaintiff can only recover “actual” damages where he is not entitled to treble damages under OCGA § 10-1-399; that the trial court found plaintiff entitled only to general damages and not to treble damages; that the FBPA limits the remainder of plaintiff’s recovery to actual damages, not general damages; and, that the evidence of record does not establish actual damages in an amount sufficient to support the jury’s award.

Appellee argues the FBPA does allow for the award of general damages; that according to OCGA § 51-12-2 (a) general damages may be recovered without proof of any amount; and, that the proper measure of general damages is limited only by the enlightened conscience of an impartial jury.

OCGA § 10-1-399 (a) pertinently provides that an-FBPA cause of action can be brought “to recover . . . general and exemplary damages sustained as a consequence thereof . . . provided, however, exemplary damages shall be awarded only in cases of intentional violation.” (Emphasis supplied.) Thus, it is clear that general damages can be recovered in an FBPA action (see generally Cobb & Eldridge, Ga. Law of Damages (2d ed.), § 29-5), and this interpretation is consistent with our conclusion in Division 1 that an FBPA violation need not be grounded on deliberate or intentional conduct in all instances.

This court, however, has consistently held that in accordance with the statutory requirements of the FBPA, the measure of damages to be applied for an FBPA violation is that of “actual injury suffered.” Givens v. Bourrie, 190 Ga. App. 425 (1) (379 SE2d 223); Standish v. Hub Motor Co., supra at 366. This holding is consistent with one of the stated purposes of the FBPA “to limit damages for injury caused by bona fide error.” (Emphasis supplied.) Ga. L. 1975, p. 376. Thus, even an award for general damages under the FBPA is limited to those damages that can be measured by “actual injury suffered,” and the general provisions of OCGA § 51-12-2 (a) are not applicable.

We find, as a matter of law, that the evidence of record in this case would not support an award of treble damages. We also find that appellee has failed to provide sufficient evidence from which the jury could determine that actual damage was suffered in the amount of $22,367.27 as awarded.

The trial record, nevertheless, does contain evidence of some “actual injury suffered” by appellee, notwithstanding his election at trial to decline to place a “dollar value” on the aggravation he had suffered as a result of the incident.

Decided February 23, 1990.

Pamela M. Richards, for appellant.

Wayne C. Yancey, for appellee.

The judgment is affirmed on condition that appellee take judgment only as to such damages as the trial court finds from the posture of the trial record can be measured by actual injury suffered; otherwise reversed.

Judgment affirmed on condition.

Banke, P. J., and Cooper, J., concur.


text:
    A90A0060.
    REED v. EASTERN ELECTRIC APPARATUS REPAIR COMPANY et al.
    (391 SE2d 472)
   Birdsong, Judge.

This appeal arises from the denial of Theodore Reed’s partial motion for summary judgment to have an employment covenant held invalid. The trial court held the agreement to be enforceable but subject to modification, and set a date for an evidentiary hearing to prescribe those areas essential for the protection of the interest of Eastern Electric Apparatus Repair Company, Inc. et al. We granted this interlocutory appeal to Reed, however, to determine whether the trial court erred in holding the subject document to be ancillary to the sale of a business and thus subject to “blue pencil” modification, rather than entirely unenforceable as an employment contract, as Reed had contended.

The restrictive document entered into in 1986, prohibited Reed “during the term of the Agreement and for a period of two years following the termination of this Agreement . . . either separately or in association with any other person or entity, directly or indirectly, engage in the business of manufacturing, developing, selling, leasing, licensing, or otherwise marketing a business for the service and repair of electrical apparatus and products in the [31] states listed. . .

Reed’s employment terminated in 1988; by its terms, this agreement and its restrictions terminate November 1990. Held:

We find this agreement to be ancillary to the sale of a business and not a mere employment contract, and therefore, the trial court did not err in finding it may be modified.

Both Reed and Eastern describe exhaustively the machinations by which Reed and another entered a joint venture, with Caronan Fund raising $30.1 million in guarantee, for their purchase of all the repair facilities of Westinghouse Electric Company in 31 states. Reed contends that he “necessarily capitulated to Caronan’s terms because there was insufficient time to negotiate a joint venture financing arrangement with another investment group and personal bankruptcy would have thus been the consequence of noncompliance.” He contends further that after he entered the deal, his stock (for which he paid $88,000) was diluted and his employment was terminated for unspecified “cause.”

Upon a full analysis of all the contortive arrangements Reed brought to bear in forming Eastern Electric and the arguments of all the parties, we conclude Reed’s agreement not to compete was not improperly induced, but instead was voluntarily made and specifically negotiated by him as the instigator of the deal to induce Caronan to put up $30.1 million for purchase of the Westinghouse repair business. Reed’s management expertise was the motivating factor in Caronan’s participation, and his agreement not to join a competitor was a primary basis of the deal.

Although he technically purchased stock in Eastern Electric, he in essence was the seller of his own good will and expertise; this is the quid pro quo which validates the agreement as one ancillary to the sale of a business. See Redmond v. Royal Ford, 244 Ga. 711 (261 SE2d 585); Jenkins v. Jenkins Irrigation, 244 Ga. 95, 98 (259 SE2d 47).

Our conclusion that the agreement should be enforced is further mandated by the terms of the Revolving Credit and Term Loan Agreement between Reed and Fleet Credit Corporation, which provided debt financing for the deal. The loan agreement provided that as a condition precedent to the loans, “Reed . . . shall have entered into an Employment Agreement with the Borrower [Eastern Electric], all upon terms satisfactory to the Lender [Fleet].” If this condition precedent was too much arm-twisting for Reed to have to bear, it illbehoves him to say so now, after the money was laid out upon his promise. That the deal went sour for him later is not cause to break the agreement that he had used to induce the bargain by which, no doubt, he had hoped to reap a more advantageous result.

This restrictive agreement made ancillary to the sale of a business is subject to modification by “blue penciling” such provisions as are overbroad in securing and exceeding the quid pro quo underlying the sale. The trial court did not err in granting only partial summary judgment to Reed, and in determining the agreement to be ancillary to the sale of a business, and hence susceptible to the blue pencil rule. The proceedings are remanded to the trial court for evidentiary hearing, particularly to determine whether the court should “[require] the seller to do that which the buyer and seller bargained for, yet in a smaller area than that agreed to by the seller.” White v. Fletcher/Mayo/Assoc., 251 Ga. 203, 206 (303 SE2d 746).

Decided February 23, 1990.

Kilpatrick & Cody, Matthew J. Mitten, Jerre B. Swann, Patrick A. Bawson, for appellant.

Rogers & Hardin, Phillip S. McKinney, Allie S. Edwards, Long, Weinberg, Ansley & Wheeler, Barry S. Mittenthal, for appellees.

Judgment affirmed.

Been, P. J., and Cooper, J., concur.