author: Carley, Chief Judge. Beasley, Judge,

text:
    A89A2049.
    WARD v. THE STATE.
    (393 SE2d 21)
   Carley, Chief Judge.

Appellant and his wife were jointly tried before a jury and were found guilty of simple possession of cocaine and possession of marijuana with intent to distribute. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant and his wife were represented by the same counsel. It was only in appellant’s motion for new trial that he first objected to this simultaneous representation and urged that it denied him effective assistance of counsel. The trial court’s refusal to grant appellant a new trial on this ground is enumerated as error.

“Where[, as here,] the issue is not timely raised, only in the most flagrant of cases can it be held error for the court to fail to interject itself in the case and sua sponte to appoint new counsel for one or more defendants where its intervention has not been sought. ... It would indeed take a strong case to require intervention by a judge between a defendant and his counsel when the issue had not been raised by the parties involved. . . .” Graham v. State, 152 Ga. App. 233, 238 (3) (262 SE2d 465) (1979). “[I]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance, and a mere possibility of conflict is insufficient to impugn a conviction amply supported by competent evidence. Further, single representation of multiple defendants raises no per se presumption of a conflict of interest or prejudice. [Cit.]” Blasengame v. State, 187 Ga. App. 501, 502 (1) (370 SE2d 797) (1988).

“ ‘(T)he court should inquire, “Did the representation deprive either or both of the defendants of the undivided loyalty of counsel? Did counsel have to, or did he in fact, slight the defense of one defendant for . . . another?” (Cit.)’ [Cit.]” Barnes v. State, 160 Ga. App. 232, 233 (286 SE2d 519) (1981). “ ‘An actual conflict exists if counsel’s introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing.’ [Cits.]” Weeks v. State, 190 Ga. App. 373, 374 (1) (378 SE2d 895) (1989).

“ ‘(T)o justify separate counsel, the conflict may not be merely theoretical or speculative, but must have some substantial basis in fact.’ [Cit.]” Acierno v. State, 176 Ga. App. 600, 601-602 (3) (337 SE2d 39) (1985). The record in this case clearly shows that there was no genuine inconsistency between the defenses of appellant and his wife. See Graham v. State, supra at 236 (3). Counsel was free to investigate and present a defense for each of his clients without damaging the defense of the other and the record shows that he vigorously did so. See Barnes v. State, supra at 233; Davis v. State, 129 Ga. App. 796, 800 (1) (201 SE2d 345) (1973). The instances of alleged conflict of interest cited by appellant are, at most, speculative and have no substantive basis in fact. Acierno v. State, supra. It follows that the trial court did not err in denying appellant’s motion for new trial on the ground of his trial counsel’s conflict of interest.

2. Appellant enumerates as error the denial of his motion to suppress evidence which he asserts was seized in a warrantless entry of his motel room.

Contrary to appellant’s assertion, no evidence was seized from his motel room until a search warrant had first been obtained. The record shows the following: Appellant’s wife requested that an ambulance be sent to their motel room for her husband. Pursuant to standard procedure, a police officer was also dispatched to the scene. The emergency medical technician requested that the officer enter the motel room in order to assist him. As he entered, the officer saw drug paraphernalia in plain view on the table. Appellant’s wife voluntarily handed the officer a package of cocaine which he placed on the table. No evidence was seized from the room without a warrant. Rather, another police officer was placed at the door to secure it until a warrant was obtained.

The officer’s initial entry into the motel room was justified by the reasonable belief that a person within was in need of immediate aid. See Coker v. State, 164 Ga. App. 493, 496-97 (5) (297 SE2d 68) (1982). Thereafter, “instead of seizing the property, he . . . obtained a search warrant based upon probable cause and then, armed with the search warrant, returned and properly conducted a search. Being in reasonable belief that [a person within was in need of immediate aid], the officer had authority to enter the [motel] room. [Cit.] Having observed the [contraband] in plain view from a position where he had a lawful right to be, the subsequent recovery of the property was not improper. [Cit.] The officers were authorized to seize all the items as tangible evidence of the commission of the crime for which probable cause was shown. [Cits.] . . . The trial court did not err in denying the motion to suppress.” Reed v. State, 163 Ga. App. 233, 234-35 (293 SE2d 469) (1982).

3. Appellant enumerates the general grounds, asserting that the evidence was insufficient to authorize his conviction for possession of marijuana with intent to distribute.

Not only did the officers find a large amount of drug paraphernalia, including scales, they also found some 50 grams of marijuana, which was individually packaged, several guns and $1,724 in cash. “[Although ‘mere possession of contraband without more will not serve as the basis for a conviction for possessing contraband for purposes of sale, (cit.),’ [cit.], [the evidence in this case does] give rise to a reasonable inference that appellant possessed the [marijuana] with the intention of distributing it. [Cit.]. . . . We find the evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the charged violations of OCGA § 16-13-30. [Cits.]” Doe v. State, 189 Ga. App. 793, 795 (377 SE2d 546) (1989). See also Midura v. State, 183 Ga. App. 523 (1) (359 SE2d 416) (1987); Wiley v. State, 178 Ga. App. 136 (1) (342 SE2d 342) (1986).

4. The trial court ordered that the seized currency be applied against appellant’s fine. This ruling is enumerated as error.

“[T]here is a ‘power inherently existing in the [c]ourt’ to issue a writ of execution for the purpose of collecting a fine from a criminal defendant. In our view, the trial court in the instant case possessed the inherent power to enter an order directing in effect, that the . . . money in custodia legis be used to pay appellant’s fine. Further legal action was unnecessary. [Cit.] . . . [W]e need not determine at this time whether, in the absence of statute, . . . money in excess of the maximum fine ... is subject to confiscation. The . . . money in this case did not exceed the maximum fine. Regardless of whether the . . . money [is subject to forfeiture pursuant to OCGA § 16-13-49 (a) (6)], the trial court’s order in the instant case did not result in a forfeiture.” Hall v. State, 155 Ga. App. 724, 726 (5) (272 SE2d 578) (1980).

Judgments affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur on the Federal constitutional basis of Cuyler v. Sullivan, 446 U. S. 335 (100 SC 1708, 64 LE2d 333) (1980). See also, for application, Brown v. State, 247 Ga. 298, 299 (2) (275 SE2d 52) (1981) overruled on other grounds, Wilson v. Zant, 249 Ga. 373, 380 (2) (290 SE2d 442) (1982); Hamilton v. State, 255 Ga. 468, 470 (2) (339 SE2d 707) (1986). Cf. Wood v. Georgia, 450 U. S. 261 (101 SC 1097, 67 LE2d 220) (1981).

Decided March 13, 1990

Rehearing denied March 28, 1990.

Bailey & Bearden, J. Lane Bearden, for appellant.

Darrell E. Wilson, District Attorney, Suzanne Hayes, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Beasley, Judge,

license: Public Domain

text:
    A89A2056.
    WEATHERBY et al. v. HONDA MOTOR COMPANY, LTD. et al.
    (393 SE2d 64)
   McMurray, Presiding Judge.

This is a product liability case involving a Honda Model Z50R. This scaled-down off-road motorcycle had been purchased by Jerry Weatherby for the enjoyment of his family. On March 14, 1984, defendant Edwards, a friend and houseguest of the Weatherbys, gave five-year-old plaintiff Randy Weatherby a ride on the Honda. Defendant Edwards knew that there was no cap on the gasoline tank of the Honda. During the ride over uneven terrain gasoline splashed from the open tank and was ignited, causing severe burns to plaintiff Randy Weatherby.

Plaintiff Randy Weatherby proceeding by next friend, his mother Ivy Weatherby, along with plaintiffs Ivy Weatherby and Jerry Weatherby, individually, filed this action for damages against defendant Edwards, American Honda Motor Company, Inc., Honda Research and Development Company, Ltd., and Honda Motor Company, Ltd. The action against Honda Research and Development Company, Ltd., was dismissed pursuant to a stipulation that the remaining two Honda corporations (hereafter “the Honda defendants”) will assume the responsibility and liability, if any, of Honda Research and Development Company, Ltd.

The complaint alleges that the injury to plaintiff Randy Weatherby occurred due to the negligence of defendant Edwards and because the Honda motorcycle was negligently designed, manufactured, and distributed, and was unreasonably dangerous due to a defective design. The action against the Honda defendants which was couched in terms of negligence, strict liability, and breach of warranty is based on the absence of any device attaching the cap to the gasoline tank so as to remind a person to put it in place prior to operation; the absence of a safety device covering the spark plug which would prevent any contact with flammable objects; the absence of a device or foam lining which would prevent fuel spillage in the event the gas cap is not on the tank; and inadequate warnings of the defective nature of the motorcycle.

The Honda defendants moved for summary judgment relying upon the “open and obvious rule” (also known as the “patent danger rule”), that is, that a product is not defective if the absence of a safety device is open and obvious, and there is no duty to warn of an obvious danger. The absence of a device connecting the gas cap to the tank, and the danger attendant to riding a motor bike with an uncapped gas tank could not be more open and obvious, argued the Honda defendants. Plaintiffs appeal the grant of summary judgment in favor of the Honda defendants. Held:

On appeal, the Honda defendants continue to rely upon the “open and obvious” rule. Plaintiffs present several arguments in support of their contention that this rule is inapplicable, and argue that this case is controlled by our recent decision in Ogletree v. Navistar Intl. &c. Corp., 194 Ga. App. 41 (390 SE2d 61) (1989).

Plaintiffs’ reliance on Ogletree v. Navistar Intl., 194 Ga. App. 41, supra, has compelled our review of the facts and law of that case. We have found that while the facts in Ogletree and the present case are similar, we are unable to follow Ogletree since it is predicated upon significant errors of law. It appears that we have inadvertently strayed from our settled adherence to the “open and obvious rule,” perhaps to the point of seemingly abandoning that principle. While the “open and obvious rule” has been the subject of considerable criticism and has been abandoned in some other jurisdictions, including New York where it originated, it continues to be the law in Georgia. Stodghill v. Fiat-Allis Constr. &c., 163 Ga. App. 811, 813 (295 SE2d 183). Therefore, insofar as it fails to correctly apply the “open and obvious rule,” Ogletree v. Navistar Intl., supra, must be overruled.

“In a products liability case predicated on negligence, the duty imposed is the traditional one of reasonable care and the manufacturer need not provide, from a design standpoint, a product incapable of producing injury. Greenway v. Peabody Intl. Corp., 163 Ga. App. 698, 699 (1) (294 SE2d 541) (1982). Georgia law does not require a manufacturer to occupy the status of an insurer with respect to product design, Hunt v. Harley-Davidson Motor Co., 147 Ga. [App.] 44, 46 (4) (248 SE2d 15) (1978), or to provide a collision safe vehicle. Friend v. Gen. Motors Corp., 118 Ga. App. 763, 764 (2) (165 SE2d 734) (1968). The manufacturer is under no obligation to make a machine ‘accident proof or foolproof,’ Fortner v. W. C. Cayne Co., 184 Ga. App. 187, 190 (2) (360 SE2d 920) (1987), and Poppell v. Waters, 126 Ga. App. 385, 387 (1) (190 SE2d 815) (1972), or even ‘more safe.’ Stovall & Co. v. Tate, 124 Ga. App. 605, 611 (1) (184 SE2d 834) (1971). The public policy enunciated by the legislature is a predominant factor in our determination. Rhodes v. R. G. Indus., 173 Ga. App. 51, 52 (1) (325 SE2d 465) (1984).

“Here the vehicle is not alleged to be defective in the operational sense but in that it did not contain what the plaintiffs contend to be the best or more advanced safety device. The instant situation is in-apposite to Ford Motor Co. v. Stubblefield, 171 Ga. App. 331 (319 SE2d 470) (1984), which involved a defective injury-causing component rather than the absence of a superior safety device. If a ‘product is designed so that it is reasonably safe for the use intended, the product is not defective even though capable of producing injury where the injury results from an obvious or patent peril.’ Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 847 (2) (321 SE2d 353) (1984) (affirmed Mann v. Coast Catamaran Corp., 254 Ga. 201 (326 SE2d 436) (1985)), where it was observed that with regards [to] a product-design case ‘only semantics distinguishes’ between a cause of action for negligence and liability under OCGA § 51-1-11. See Griffin v. Crown Central Petroleum Co., 171 Ga. App. 534 (320 SE2d 383) (1984).” Honda Motor Co. v. Kimbrel, 189 Ga. App. 414, 418 (376 SE2d 379).

Care should be taken to distinguish between the “open and obvious rule” and the affirmative defenses of contributory and comparative negligence and assumption of the risk. Although the rationale of the “open and obvious rule” is similar to that of these affirmative defenses, there are important substantive distinctions between them. In determining, under the “open and obvious rule,” whether the peril from which an injury results is latent or patent, the decision is made on the basis of an objective view of the product, and the subjective perceptions of the user or injured party are irrelevant. See 35 ALR4th 861; 96 ALR3rd 22; 95 ALR3rd 1066; 63 AmJur2d Products Liability §§ 342; 369; 378; 932; and 936; and Darling, The Patent Danger Rule: An Analysis & A Survey of Its Vitality, 29 Mercer L. Rev. 683 (1978).

While the “open and obvious rule” imposes on a plaintiff the burden of proving that the peril-causing injury is latent, or not patent, the affirmative defenses of contributory and comparative negligence and assumption of the risk require a defendant to prove that a plaintiff’s conduct was unreasonable under the circumstances or that plaintiff knowingly encountered a known danger with appreciation thereof. Thus, jury questions are often presented as to whether the affirmative defenses have been established.

It is not uncommon for issues concerning both the “open and obvious rule” and the similar affirmative defenses to arise in the same case. Both have been discussed in several Georgia cases and unfortunately, care has not been taken in all instances to separate or otherwise clearly distinguish which portion of a decision relates to a given principle.

Thus, we were led, in Ogletree v. Navistar Intl. Corp., supra, to erroneously view the absence of evidence pertaining to the subjective perceptions of that plaintiff’s decedent as relevant to our analysis concerning the applicability of the “open and obvious rule.” Actual knowledge by the user of the danger posed by a product is not necessary in order to invoke the “open and obvious rule.” 63 AmJur2d Products Liability, § 342; Poppell v. Waters, 126 Ga. App. 385, 388 (190 SE2d 815); Stodghill v. Fiat-Allis Constr. &c., 163 Ga. App. 811, supra. In Ogletree, we should have directed our attention to whether an objective view of the truck disclosed that the absence of the backup alarm was open and obvious, and as an affirmative conclusion was clearly warranted, we should not have reversed the grant of summary judgment to defendant Navistar International Transportation Corporation.

Furthermore, in regard to Ogletree v. Navistar Intl. Corp., supra, we must also acknowledge that our reliance upon Verge v. Ford Motor Co., 581 F2d 384 (3rd Cir. 1978), was misplaced, particularly insofar as we drew therefrom a balancing analysis concerned with economic feasibility, technological feasibility, and practicality. Those jurisdictions which have abandoned or rejected the “open and obvious rule,” have nonetheless generally chosen to consider the patency of a particular defect as a factor in determining whether a product is unreasonably dangerous. In those jurisdictions, factors such as those stated in Verge are considered along with patency to determine if a duty exists with respect to the patent defects. 35 ALR4th 861, 865, § 2(a); 95 ALR3rd 1066, 1070, § 2(a). The factors taken from Verge are not relevant to the application of the “open and obvious rule” which prevails in Georgia.

Finally, we reach the issue of whether the “open and obvious rule” is applicable to the case sub judice. While we begin our objective view of the motorcycle by noting that the absence of a safety device to prevent loss of the gas cap or prevent fuel spillage when the gas cap is removed is patent, such does not address the entire issue submitted. Ultimately, the peril at issue in this case is the open fuel tank resting over the engine and its spark plug. The open fuel tank surely suggests the possibility of spillage and particularly so, on a vehicle designed for off road use. As the fuel tank is located above the engine, gravity can be anticipated to bring the spilled fuel in contact with the engine and spark plug.

While plaintiffs argue that the dangers of spilled gasoline coming into contact with an engine are not generally known, we hold otherwise. Gasoline is well known as an extremely flammable substance which may be easily ignited when subjected to heat or electrical impulses such as found about the surface of an operating gasoline engine. Giordano v. Ford Motor Co., 165 Ga. App. 644 (299 SE2d 897) may be distinguished on the facts. The attempt to prime the carburetor in that case involved an attempt to place a small quantity of gas into the pathway through which fuel was ingested by the engine during its normal operation and is in no way analogous to the uncontrolled spillage of gasoline about the exterior of the engine in this case.

Plaintiffs contend that the motorcycle was a toy and that, as such, it should be viewed through the eyes of a child in determining whether the risks presented by the product are open and obvious. This contention appears to be contradicted by Poppell v. Waters, 126 Ga. App. 385, supra, wherein the absence of a headlight and reflectors from a bicycle used by a 12-year-old child was held to be open and obvious without any apparent application by this court of a child’s standard. Plaintiffs’ reliance on Milton Bradley Co. v. Cooper, 79 Ga. App. 302 (53 SE2d 761), is misplaced as that was not a products liability case, nor did it involve the application of the “open and obvious rule.” Furthermore, even if some alteration of the “open and obvious rule” is deemed appropriate where a toy is involved, this is not an appropriate case for its application. While the Honda Motorcycle was marketed for use by older children, it was not marketed for use by five-year-old children such as plaintiff Randy Weatherby. Nor in fact was plaintiff Randy Weatherby ever permitted to operate the motorcycle, he was only allowed to ride as a passenger with his father or defendant Edwards.

“While in many cases the defense based upon the obvious and common nature of the peril will be a question to be determined by the jury, a manufacturer is entitled to judgment as a matter of law in plain and palpable cases.” Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 846 (2), 848 (321 SE2d 353). We conclude, as a matter of law, that the injuries at issue in this case resulted from an obvious or patent peril. It follows that plaintiffs are barred from recovery on theories of negligence or strict liability. Barnes v. Harley-Davidson Motor Co., 182 Ga. App. 778 (357 SE2d 127); Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 846 (2), supra; Stodghill v. Fiat-Allis Constr., 163 Ga. App. 811, supra; Poppell v. Waters, 126 Ga. App. 385 (1, 3), supra; Stovall & Co. v. Tate, 124 Ga. App. 605, 609 (1) (184 SE2d 834).

A manufacturer is under no duty to warn of a product-connected danger which is obvious or generally known. Barnes v. Harley-Davidson Motor Co., 182 Ga. App. 778, 781, supra; Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 846 (2), supra; Poppell v. Waters, 126 Ga. App. 385, 388, supra. Therefore, plaintiffs are also barred from recovery insofar as their claim is predicated on inadequate warnings.

Finally, plaintiffs’ claim based on breach of warranties must also fail due to lack of privity. Jerry Weatherby purchased the used Honda motorcycle several years after it was manufactured. Plaintiffs were not the beneficiaries of any warranty, express or implied, arising from the manufacture of the motorcycle. OCGA § 11-2-318; Stovall & Co. v. Tate, 124 Ga. App. 605, 614 (3), supra.

Summary judgment is appropriate where there is no genuine issue of material fact. The superior court did not err in granting summary judgment in favor of the Honda defendants.

Judgment affirmed.

Been, P. J., Banke, P. J., Birdsong, Sognier and Pope, JJ., concur. Carley, C. J., and Beasley, J., concur specially. Cooper, J., disqualified.

Beasley, Judge,

concurring specially.

I concur in the affirmance of summary judgment but not in all that is written in reaching that resolution. I also dissent from the overruling of Ogletree v. Navistar Intl. &c. Corp., 194 Ga. App. 41 (390 SE2d 61) (1989), cert. den. March 13, 1990, and do not fully agree with the majority’s analysis of Ogletree.

Ogletree was correct in its two-fold analysis. It focused first on the injured party, as the law provides that if the “defect” and danger arising therefrom were open and obvious to him, then the parties representing his position would be precluded from recovery. There were questions of fact remaining after all the evidence was considered.

A subjective test is applicable when examining the relationship between the injured person and the product, because it is the knowledge and actions of this particular person or the user which are at issue.

If Ogletree knew of the defect and the danger, i.e., if it were subjectively open and obvious to him, then whether or not the manufacturer owed a duty to the world in general would not be reached as it would prevail on the affirmative defense of assumption of the risk. See Yaeger v. Canadair, Ltd., 189 Ga. App. 207, 208 (375 SE2d 469) (1988), for a recognition of this principle. Barnes, in Barnes v. Harley-Davidson Motor Co., 182 Ga. App. 778, 780 (357 SE2d 127) (1987), was in this position. So was the child in Poppell v. Waters, 126 Ga. App. 385, 386 (1) (190 SE2d 817) (1972), and Hunt in Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44 (1) and (2) (248 SE2d 15) (1978).

We concluded in Ogletree that from the state of the evidence at that summary judgment stage, the record did not establish conclusively that he knew there was a blind spot in the driver’s field of vision coupled with an absence of a warning device which would alert him to the danger of the truck’s hitting him. He, as a person located behind the moving truck, would be the intended beneficiary of a backup alarm. If he knew, of course, Navistar would be entitled to judgment in its favor. Barnes, supra, is illustrative.

The same applied to the operator. If he had actual knowledge, not only of the absence of a backup alarm and of a blind spot but also of the danger which such presented under the circumstances, i.e., if these were open and obvious to him, then the manufacturer would be shielded by what amounted to an intervening cause. That was the case in Stovall & Co. v. Tate, 124 Ga. App. 605 (184 SE2d 834) (1971). The evidence was not conclusive in Ogletree.

The Supreme Court, in Mann v. Coast Catamaran Corp., 254 Ga. 201, 202 (326 SE2d 436) (1985), alluded to the particular use in question: “ ‘If the injury results from abnormal handling . . . the seller is not liable.’ ” There was no abnormal operation of the truck in Ogle-tree, as it was simply being driven rearwards, albeit there may have been negligence on the operator’s part as to the caution he took. In sum, there was not a preclusion of liability arising from the affirmative defense of total fault attributable to the user or injured party or both in the particular instance of use.

We then focused on the manufacturer’s duty, the first element of a tort, and examined whether the evidence established that it had no duty to install a backup alarm. Such a device would be primarily for the protection of people and objects located behind the truck when it was being backed up, rather than for the protection of the operator. The Supreme Court in Mann focused on the duty aspect in its opinion. It pointed out that in claims based on OCGA § 51-1-11 (b), which is invoked here and was the foundation of the Ogletree claim, a product “ ‘is not in a defective condition when it is safe for normal handling and consumption.’ ” In Ogletree, there was evidence that it was reasonably foreseeable that an operator would back the truck up without full vision, due to blind spots created by whatever was mounted on the truck. The Supreme Court in Mann recognized that the manufacturer’s duty is, for one thing, to provide adequate warnings and instructions for use, in order for the product to be deemed not defective in law.

We applied the objective standard of “open and obvious” in viewing the manufacturer’s relationship to the product in Ogletree’s case, applying the traditional “reasonably foreseeable” test. See Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 335 (2) (319 SE2d 470) (1984). We discovered that there was evidence of reasonable foreseeability and resultant inadequacy. The ultimate resolution was left to the jury because of disputed material facts.

Thus there was no departure in Ogletree from decisional law. The majority in the case now under consideration may differ with the result in Ogletree insofar as the extent to which a manufacturer’s duty extends, but the principles on which it was based were not askew. There is no cause to overrule it, which would not affect the ruling made for that case nor change, for future cases, the principles applied in it.

The Weatherby case differs significantly. For one thing, the product was being used in an abnormal manner, and “ ‘the injury result[ed] from abnormal handling.’ ” Mann, supra at 202. The off-road one-seat motorcycle, which had the gas tank in front of the seat, was being driven off-road by an adult who had allowed the child to sit in front of him on top of the gas tank and immediately behind the opening at the top through which the adult had just put gas. He did not put the safety device, the gas cap, on because he did not know where it was and had often operated the cycle without it. The gas sloshed out and ignited when he drove down a dip in the terrain. It was “open and obvious” to him, subjectively, that he was riding on a rough surface with gasoline exposed to a motor.

Decided March 16, 1990

Rehearing denied March 28, 1990

Robert K. Finnell, Ellerin & Williams, Irwin M. Ellerin, Denise A. Hinds for appellants.

King & Spalding, Lanny B. Bridgers, Sally C. Quillian, Steven J. Estep, for appellees.

David Boone, amicus curiae.

That does not preclude recovery, say the Weatherbys, because there is no evidence that the danger was open and obvious to the injured party, the child. Even if it were not, however, the manufacturer would not be liable if it owed to the child none of the duties claimed. So the next consideration turns to the manufacturer.

Analogous to Mann, the product as manufactured “was reasonably suited for its intended purpose” of movement off-road. The absence of an additional safety device, to create a failsafe mechanism should the primary safety device, the gas cap, not be used, would not only be irrelevant to the cycle’s “functioning properly in its intended use,” in Mann’s words, but would come close to requiring the manufacturer to be an insurer. As pointed out in the majority opinion and in Ogletree, Georgia law does not impose such a duty. It would be a burden far beyond what the manufacturer should reasonably perceive being needed when the product is put to its intended use. That is to say, Honda would not be expected to foresee that someone would do what was done in this case, so as to create a duty to preclude injury by installing a secondary-stage protective device to keep gasoline confined or at least away from an open source of ignition, or to warn of danger from the absence thereof. Both were objectively “open and obvious,” not latent.

I am authorized to state that Chief Judge Carley joins in this special concurrence.


author: McMurray, Presiding Judge.

text:
    A89A2065.
    HOLTZENDORF et al. v. SECKINGER et al.
    (393 SE2d 13)
   McMurray, Presiding Judge.

Plaintiffs R. L. Holtenzdorf and Mrs. Agnes Irene Holtzendorf brought suit against Malcolm Seckinger, Seckinger Realty Company, and Joseph H. Roberts. The complaint, as amended, was couched in six counts. It was alleged that plaintiffs owned, as tenants in common, certain property in Glynn County, Georgia, known as Oak Grove Island, consisting of approximately 680 acres; that, in June or July 1986 defendant Seckinger, a licensed real estate broker as agent of Seckinger Realty Company, enlisted defendant Roberts, a close acquaintance and confidant of plaintiff R. L. Holtzendorf, in “a scheme to inveigle plaintiffs to sell Oak Grove Island, the purpose and intent being to produce a real estate commission for himself [defendant Malcolm Seckinger]”; that defendants, acting in concert, conspired to inveigle the sale of Oak Grove Island in order to obtain and split the real estate commission derived from the sale; and that in July 1986 defendant Roberts, who was not a licensed real estate broker, associate broker or salesperson, “approached plaintiff R. L. Holtzendorf and wheedled out of said plaintiff an oral promise that plaintiffs would sell Oak Grove Island for $2,500,000.00 net in cash.”

Plaintiffs further alleged that they previously refused to consider offers by one George Skarpalezos to purchase Oak Grove Island and that defendants “cunningly avoided disclosure that they were acting on behalf of Skarpalezos” in connection with the purchase of Oak Grove Island; that, thereafter, defendant Roberts brought plaintiffs a contract which identified Skarpalezos and one Harry Driggers as prospective purchasers of the property; and that, considering themselves “bound, morally if not legally, by plaintiff R. L. Holtzendorf s promise to sell for $2,500,000.00 net in cash . . . plaintiffs signed said contract under date of August 14, 1986.”

A copy of the contract was attached to the complaint as an exhibit. It recites that plaintiffs were to sell Oak Grove Island for $2,600,000 in cash. Plaintiffs signed the contract as sellers; George Skarpalezos and Harry Driggers signed the contract as buyers; defendant Malcolm Seckinger signed the contract as a broker; and defendant Roberts signed the contract “as his interest may appear.”

A key provision of the contract reads: “At the time of closing, Seckinger Realty Company will receive the sum of $25,000 for their services and Mr. Joe H. Roberts will receive $75,000 for his option rights and other services performed on the sale of the property. This sum is included in the selling price of $2,600,000.00 and will be paid from such selling price leaving the seller . . . the sum of $2,500,000.00 for their island.”

With regard to the contract, the complaint alleged that “plaintiffs were not aware of [an] inconsistent provision regarding payment of transfer taxes [by the sellers], which would reduce the net proceeds to become due them; nor did they attach any significance to the reference to defendant Roberts’ ‘option rights’; nor were they aware of the provisions of O.C.G.A. § 43-40-30 making it unlawful for defendant Roberts to act as a real estate broker, associate broker or salesperson.” It was alleged further that defendant Roberts did not have any “option rights” in the property and that the reference to “option rights” in the contract was nothing more than a “thinly veiled disguise” for a $75,000 real estate commission, which defendant Roberts sought with the “knowing assistance” of defendant Malcolm Seckinger.

The complaint went on to allege that following the execution of the contract, the parties learned that plaintiffs’ title to Oak Grove Island was not merchantable and insurable and that title could only be perfected via judicial proceedings; that, thereafter, Harry Driggers withdrew from the contract; but that Skarpalezos affirmed his intention to buy Oak Grove Island if plaintiffs were able to convey merchantable, insurable title. In this regard, plaintiffs alleged that up until December 31, 1986, defendants repeatedly represented to plaintiffs that Skarpalezos was able to pay the full purchase price of the property; that the representations were false and defendants either knew the representations were false or were ignorant about the truth of the representations; that plaintiffs were unaware of the falsity of the representations and relied upon them before taking judicial action to cure the defects in their title; and that the proceedings to quiet title were complex and plaintiffs borrowed and expended more than $100,000 in connection with that action.

It was also alleged that “[i]n order to take advantage of the capital gains treatment afforded by the Federal tax laws in effect in 1986, and relying on defendants’ false representations, plaintiffs conveyed Oak Grove Island to Skarpalezos Realty Co., Inc. (as designated by George Skarpalezos) on December 31, 1986, and accepted in return the promissory note of Skarpalezos Realty Co., Inc., secured by a purchase money deed to secure debt and contingent on satisfactory completion of the . . . quiet title action”; that in June 1987 plaintiffs perfected title in Skarpalezos Realty Co., Inc., subject to the purchase money deed to secure debt; and that, “[i]n the meantime” plaintiffs learned that Skarpalezos was unable to pay the $2,600,000 purchase price of the property as represented by defendants.

The complaint went on to allege: “At that point, as a practical matter, plaintiffs could not back out of the enormous expenditure which they had undertaken in consequence of defendants’ false representations, and they had further committed themselves to very substantial income tax liabilities based on the December 31, 1986, sale . . . . Taking advantage of the situation, Skarpalezos bargained to make a partial payment on the . . . promissory note with plaintiffs refinancing the principal balance of the note, in the amount of $2,000,000.00 themselves. . . . [Defendants refused to allow the partial payment to be made on [the] promissory note on June 22, 1987, without payment of the real estate commissions provided by the original contract, and Skarpalezos Realty Co., Inc. and its attorney, coerced by defendants, refused to carry out the transaction without satisfaction to defendants. . . . [P]laintiffs were forced to accept only a partial payment and the promise of Skarpalezos Realty Co., Inc. to pay a balance in the amount of $2,000,000.00. . . . Moreover, plaintiffs were forced to pay defendant Roberts an illegal real estate commission of $18,000.00 and give said defendant a promissory note in the amount of $57,000.00 for the balance of the illegal commission claimed by defendant Roberts.”

With regard to defendants Malcolm Seckinger and Seckinger Realty Company, plaintiffs also alleged that defendants Malcolm Seckinger and Seckinger Realty Company “assumed the relationship of [plaintiffs’] agent — that relationship being confidential and fiduciary”; that these defendants were paid a $25,000 real estate commission in connection with the sale of Oak Grove Island; and that, in fact, the commission was not earned.

Summing up, the complaint sought general and punitive damages for deceit, fraud and unfair trade practices (Count 1), general damages for breach of contract (Count 2), $18,000 (paid to defendant Roberts) for violation of OCGA § 43-40-30 (b) (Count 3), judgment declaring void the $57,000 promissory note executed by plaintiffs in favor of defendant Roberts (Count 4), cancellation of the $57,000 promissory note (Count 5) and judgment against defendants Malcolm Seckinger and Seckinger Realty Company in the amount of $25,000 for money had and received (Count 6).

Defendants Malcolm Seckinger and Joseph H. Roberts answered the complaint and denied any liability to plaintiffs whatsoever. Defendant Seckinger Realty Company has not been served and is not involved in this appeal. Following discovery, defendant Malcolm Seckinger moved for summary judgment. The motion was granted and plaintiffs appealed.

In support of his summary judgment motion, defendant Malcolm Seckinger submitted an affidavit wherein he testified that he was told by defendant Roberts that Roberts had an option to purchase Oak Grove Island for $2,500,000; that he knew that George Skarpalezos was interested in purchasing the island; that, after inspecting the island, Skarpalezos was willing to purchase the island for a total of $2,600,000; and that the money was to be divided as follows: $2,500,000 to plaintiffs, $75,000 to defendant Roberts for his option and $25,000 to Malcolm Seckinger as a sales commission. Defendant Seckinger testified further that defendant Roberts was to have his option reduced to written form so it could be transferred to Skarpalezos; that plaintiff R. L. Holtzendorf did not want to have the option transferred to Skarpalezos in that manner — plaintiffs preferred a standard sales agreement; that, therefore, he prepared such a standard contract; and that the contract was executed on August 14, 1986. Finally, defendant Seckinger testified that it was his understanding throughout the transaction that defendant Roberts had an option to purchase the island; that defendant Roberts was not paid a sales commission but was paid for his option rights; that he had no contact with plaintiffs before plaintiffs were presented with a sales contract; that he did not make representations to plaintiffs concerning Skarpalezos’ ability to purchase the island; that he did not withhold information or agree with defendant Roberts to withhold information from plaintiffs; and that he was not involved in any of the negotiations between plaintiffs and Skarpalezos following the execution of the contract on August 14, 1986.

Defendant Malcolm Seckinger gave a deposition which essentially reiterated the facts set forth in his affidavit. In his deposition, however, defendant Seckinger added that at the time of the closing in June 1987 plaintiffs agreed to pay him a $25,000 commission and that plaintiffs were represented by counsel throughout that transaction.

In a deposition, plaintiff R. L. Holtzendorf deposed that he owned Oak Grove Island with his mother; that he was now retired at age 64; that he previously owned and operated a mobile home business and a loan company; and that he previously held political offices, including the mayoralty of Brunswick. Plaintiff deposed further that defendant Roberts was a friend for many years but he did not know defendant Malcolm Seckinger personally; that in connection with the sale of the island, he dealt strictly with defendant Roberts and never discussed the sale with defendant Seckinger; that he did not give defendant Roberts an option to sell the island but agreed to sell the island to defendant Roberts for $2,500,000 net; that Roberts had no interest in the island — only a verbal agreement with plaintiffs; and that he did not care if Roberts purchased the property for $2,500,000 or found someone else to purchase it for more. Plaintiff also deposed that after agreeing to sell the island to Roberts, Skarpalezos told plaintiff that he was interested in purchasing the island and that Skarpalezos suggested a deal could be arranged without defendant Roberts. In this regard, plaintiff deposed he replied to Skarpalezos by saying that that could not be done because he had an agreement with defendant Roberts.

With regard to the August 14, 1986, contract, plaintiff R. L. Holtzendorf deposed that he was given ample opportunity to read and review the contract; that he was not prevented from reading the contract; that he was not under duress when he signed the contract; and that he “scanned” the contract. Plaintiff added, however, that he did not know the contract called for plaintiffs to pay the transfer tax.

With regard to allegations of fraud, plaintiff R. L. Holtzendorf deposed that he did not think Skarpalezos had the money to close; that representations that he did have the money were false; and that the representations were made by Skarpalezos and defendant Roberts. Plaintiff allowed, however, that perhaps Roberts was simply under the same impression that he was under, i.e., that Skarpalezos had the money lined up to close the deal.

Asked what defendant Seckinger did to cause plaintiffs damage, plaintiff R. L. Holtzendorf replied: “I did not get my $2.5 million net. That was my agreement, and by the time I found out I wasn’t getting it, I was so far in debt that I had no choice but to close.”

Skarpalezos deposed that he told plaintiff R. L. Holtzendorf that he was interested in purchasing the island and plaintiff replied that he would have to go through defendant Roberts since he had an option on the island; that he had substantial assets (exceeding $2 million) and did not think he would have a problem obtaining the financing to purchase the island; that he did not discover that he would be unable to obtain financing until after he signed the August 14, 1986, contract; and that he did not discuss his financing problems with either defendant. Insofar as defendant Roberts’ option was concerned, Skarpalezos deposed that it did not matter to him whether Roberts’ option was oral or written — that he had given oral options in the past and stood by them. In this regard, Skarpalezos stated that there are still some businessmen willing to honor their oral agreements.

Skarpalezos also deposed that defendant Malcolm Seckinger was the realtor in the transaction; that defendant Roberts was paid for his option; and that when everything was settled, plaintiffs and defendant Roberts agreed that Roberts would be paid over time. In this regard, Skarpalezos asserted that “nobody’s arm was twisted” and that plaintiffs were represented by counsel.

Defendant Roberts was deposed, too. He deposed that he had numerous conversations with plaintiff R. L. Holtzendorf concerning the sale of Oak Grove Island and told him he wanted the “first pop” at the island; that he originally thought about purchasing the island to develop it himself; that plaintiff R. L. Holtzendorf finally agreed to sell the island for $2,500,000 net and told defendant Roberts he had an option to buy the island for 90 days; that plaintiff R. L. Holtzendorf wanted him to advise plaintiffs about tax consequences which plaintiffs would face; and that he and plaintiff R. L. Holtzendorf shook hands on the deal. Defendant Roberts also deposed that he wanted to transfer his option to Skarpalezos but plaintiff R. L. Holtzendorf did not want to let him out of the deal so fast because plaintiffs needed his advice about taxes and other matters; that, in order to keep defendant Roberts in the deal until it closed, plaintiff R. L. Holtzendorf instructed defendant Roberts to draw the contract for $2.6 million and include the real estate commission and defendant Roberts’ cut in the contract.

Insofar as the contract referred to defendant Roberts’ option and “other services,” defendant Roberts deposed that he was to give plaintiffs tax advice and “to handle all the dealings because [plaintiff R. L. Holtzendorf did not] want anything to do with [Skarpalezos].” In other words, plaintiff R. L. Holtzendorf “didn’t want to be bothered with anything.” In that regard, defendant Roberts deposed that he tried his best to represent plaintiffs’ interests in the sale of the property. Finally, with regard to Skarpalezos’ ability to close the deal, defendant Roberts deposed that he told plaintiff R. L. Holtzendorf in December 1986 that Skarpalezos would not be able to come up with $2.5 million; but that plaintiff R. L. Holtzendorf did not believe it because the bank told him that Skarpalezos was good for the money. Held:

1. Plaintiffs insist that genuine issues of material fact remain with regard to defendant Malcolm Seckinger’s liability — but we find none. Defendant Seckinger made no representations to plaintiffs concerning the ability of Skarpalezos to obtain financing. Evidence that defendant Roberts made such representations is thin at best. Although he thought defendant Roberts vouched for Skarpalezos’ ability to come up with the money prior to the December 31, 1986, closing, plaintiff R. L. Holtzendorf allowed on reflection that defendant Roberts might have simply been under the same impression that he was under, i.e., that Skarpalezos was able to obtain sufficient financing. In any event, there is no reason to impute the representations of defendant Roberts to defendant Seckinger. There is no evidence that defendant Roberts was the agent of defendant Seckinger, and there is no evidence that defendants conspired to defraud plaintiffs. See McCulley v. Dunson, 149 Ga. App. 551 (254 SE2d 877). “We are aware that ‘(t)o show conspiracy ... it need not appear that the parties met together either formally or informally and entered into any explicit or formal agreement; nor is it essential that it should appear that either by words or writing they formulated their unlawful objects. It is sufficient that two or more persons in any manner either positively or tacitly come to a mutual understanding that they will accomplish the unlawful design.’ Woodruff v. Hughes, 2 Ga. App. 361, 365 (58 SE 551). But it is also true that ‘(t)he law should not, and does not, authorize a finding that a conspiracy exists merely because of some speculative suspicion . . .’ Grant v. Hart, 197 Ga. 662, 680 (30 SE2d 271).” McCulley v. Dunson, 149 Ga. App. 551, 554 (2), supra.

Decided March 12, 1990

Rehearing denied March 28, 1990

Besides, in view of plaintiffs’ payment to defendant Seckinger, we cannot see how plaintiffs can now assert that defendant Seckinger was not entitled to earn a real estate commission. After all, plaintiffs paid defendant Seckinger voluntarily and with the apparent advice of counsel. The threatening of legal action by defendant Seckinger (in the event he was not paid) did not constitute “business compulsion” or “economic duress.” See General Motors &c. Corp. v. Bowen Motors, 167 Ga. App. 463, 467 (306 SE2d 675). As Skarpalezos deposed, “nobody’s arm was twisted.” If plaintiffs found themselves in an economic crunch, it was an economic crunch of their own making and defendant Seckinger cannot be blamed for it.

Plaintiffs’ claim under OCGA § 43-40-30, insofar as it relates to defendant Seckinger, does not withstand scrutiny. Assuming a genuine issue of material fact exists as to whether defendant Roberts disguised a real estate commission as an “option fee” and that defendant Roberts is liable to plaintiffs for the return of the commission, see generally Grant v. Elder, 146 Ga. App. 64 (245 SE2d 341), we fail to see defendant Seckinger’s liability in this regard. After all, as noted above, there is no evidence that defendant Roberts was the agent of defendant Seckinger in this transaction.

The trial court did not err in granting defendant Malcolm Seckinger’s motion for summary judgment.

2. Plaintiffs assert that we should reverse and remand this case because, in ruling upon defendant Seckinger’s motion for summary judgment, the trial court erred in failing to consider the record. This we will not do. Assuming arguendo the trial court erred in failing to examine the record, “the error was manifestly harmless. There is nothing in the [record] which raises a genuine issue of material fact. To reverse and remand the case under these circumstances would only serve to prolong litigation and undermine the policy in favor of ‘the just, speedy, and inexpensive determination of every action.’ CPA § 1 (Code Ann. § 81A-101 [OCGA § 9-11-1]). . . . Accordingly, we will not reverse the grant of summary judgment, even if it affirmatively appears that the trial court erroneously failed to consider a portion of the record, unless the appellant can show that a genuine issue of material fact remains for trial.” Miller Grading Contractors v. Ga. Fed. &c. Assn., 247 Ga. 730, 734 (279 SE2d 442). But see Maddox v. Brown, 188 Ga. App. 728 (374 SE2d 222).

Judgment affirmed.

Carley, C. J., concurs. Beasley, J., concurs in Division 1 and in the judgment.

Eugene Highsmith, for appellants.

Stanley M. Karsman, George M. Rountree, for appellees.


author: Cooper, Judge.

text:
    A89A2178.
    CURRY CORPORATION v. MOORO.
    (393 SE2d 33)
   Cooper, Judge.

Appellant leased a car to appellee and sued after appellee returned the car and terminated the lease agreement. Appellee defended and counterclaimed on the ground that appellant violated the Federal Consumer Leasing Act (15 USC § 1667 et seq.) by not making certain disclosures. Specifically, appellee claimed that the lease did not disclose the following: the amount paid for registration fees, certificate of title, or taxes; the amount of other charges not included in the periodic payments; the warranties and guaranties made by the manufacturer or lessor; the fair market value of the car at the inception of the lease; and the aggregate cost of the lease at the expiration of the lease. Both parties filed motions for summary judgment. The trial court granted appellee’s motion for summary judgment on the main claim, liability under the lease agreement, but held that appellee’s counterclaim was barred by the applicable statute of limitation. The court denied appellant’s motion on the main claim. This appeal follows.

1. Appellant first contends that the trial court erred in granting summary judgment to appellee. The grant of summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). Neither party disputes the genuineness of the lease agreement or the disclosure statement, both of which are in the record, and appellee’s contentions regarding the nonexistence of various disclosures in these documents can be ascertained from the record. Furthermore, the uncontroverted affidavit of appellee shows that he signed an agreement to pay $337 per month for the lease of a car, but he was actually charged $350.48 per month. Appellant argues, however, that appellee failed to prove that the violations were intentional and did not result from bona fide error; therefore, summary judgment to appellee was error.

15 USC § 1640 (c) expressly provides that a creditor may not be held liable for a violation “if the creditor or assignee shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error. . . .” We have reviewed the pleadings together with the affidavit and find that they do not raise an issue of intentional conduct or bona fide error. Appellant did not respond to appellee’s counterclaim, raising the defense that the alleged violations were unintentional. Nor did appellant, either in its motion for summary judgment or in response to appellee’s motion, submit any affidavit which stated that the failure to make certain disclosures was not intentional or was the result of bona fide error. Had there been any fact question about intentional conduct versus bona fide error, appellee as the movant, would have had the burden of proving that the violation was intentional and did not result from bona fide error. First Citizens Bank &c. v. Owings, 151 Ga. App. 389 (2) (259 SE2d 747) (1979). However, inasmuch as no such issue was raised, it was not error to grant summary judgment to appellee.

2. Appellant contends that the trial court erred in finding that the lease was void and unenforceable due to violations of the Federal Consumer Leasing Act. Appellant relies on First Citizen’s Bank &c. v. Owings, supra, a case arising under the Federal Truth in Lending Act. In Owings, the bank brought an action seeking to foreclose on certain automobiles under the terms of two security agreements, and we held that violations of the Truth in Lending Act did not invalidate the contract and were no defense to the foreclosure proceedings. Unlike Owings, where the default was separate and distinct from the violation, in the case at bar, there has been no default, and the violations are directly related to the provisions of the contract which appellant seeks to enforce. The lease shows that appellee’s monthly payments were to be $337, but appellee’s affidavit establishes that he was actually charged $350.48 per month. Also, the disclosure statement shows that several disclosures were not made with respect to fees and taxes, other charges, warranties, and end of term liability. We have held that “ ‘[w]here the terms of a contract directly involve the infraction of a civil statute not enacted for the purpose of raising revenue, and such infraction is penalized by a fine, or imprisonment or both, the contract is void and unenforceable.’ [Cit.]” Couch v. Blackwell & Assoc., 150 Ga. App. 739 (1) (258 SE2d 552) (1979). We do not hold that a lessee can default under the lease, refuse to return the car, and hide behind the lessor’s failure to make certain disclosures under the Consumer Leasing Act. In such a case, the lessor would not be prevented from seeking a writ of possession. However, here the provisions of the lease, which the lessor seeks to enforce, are directly related to the disclosures it failed to make, and the lessor cannot maintain the action. Therefore, we find no error with the trial court’s finding that the lease contract was void and unenforceable.

For the foregoing reasons, we find no error with the trial court’s denial of summary judgment to appellant.

Judgment affirmed.

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

Decided March 14, 1990

Rehearing denied March 28, 1990

Neil A. Moskowitz, for appellant.

Goldner, Sommers & Scrudder, Glenn S. Bass, for appellee.

On Motion for Rehearing.

On motion for rehearing, appellant contends that we placed a duty on it to respond to appellee’s counterclaim and motion for summary judgment, contrary to the Civil Practice Act. Under the Consumer Leasing Act, a defendant can avoid liability by showing by a preponderance of the evidence that its failure to make certain disclosures was not intentional and was the result of bona fide error. Appellant contends that the allegations of nondisclosure, in appellee’s counterclaim, necessarily included the allegation that appellant’s nondisclosures were intentional and not the result of bona fide error. We disagree. The defense, that the nondisclosures were not intentional is an affirmative defense, which appellant must raise and prove at trial. While a party has no duty to respond to a counterclaim or a motion for summary judgment, where none of the pleadings raised an issue of fact as to the intentional, or unintentional, nature of the non-disclosures, summary judgment was properly granted to appellee.

Motion for rehearing denied.


text:
    A89A2183.
    LINEBERGER v. WILLIAMS.
    (393 SE2d 23)
   Carley, Chief Judge.

Appellant-defendant undertook the restoration of commercial property that he owned. Although appellant acted as his own general contractor, he hired appellee-plaintiff to assist him. Under the terms of the written contract, appellee was to be compensated at the rate of $12 per hour and, in addition, he was to receive $6,000 in equal installments of $2,000 at three different stages of construction. The contract contained no express provision regarding its duration and, after commencement, but before completion of the work, appellee informed appellant that he was moving out-of-state. When appellant could not find a suitable replacement, he offered to pay appellee an additional $12 per hour if he would remain on the job and appellee then agreed that he would continue to perform until the project was completed. However, appellant subsequently refused to pay the promised additional compensation and appellee filed this action, seeking to recover $13,714 and attorney’s fees pursuant to OCGA § 13-6-11. Appellant answered, asserting that his promise to pay the additional compensation was unsupported by legal consideration in that appellee was already obligated under the original written contract to complete the project. Appellant also counterclaimed for breach of contract and abusive litigation.

The case came on for trial before a jury. The trial court denied cross-motions for directed verdict as to contractual liability and appellant’s motion for directed verdict as to his liability for attorney’s fees. The jury returned a verdict in favor of appellee. Appellant’s motion for judgment n.o.v. or, in the alternative, new trial was denied and he appeals from the judgment entered by the trial court on the jury’s verdict.

1. Appellant enumerates as error the denial of his motions for directed verdict and judgment n.o.v. as to his contractual liability for the additional compensation.

As noted, the contract contained no express provision as to the contemplated duration of appellee’s services. If the contract for appellee’s services was for the definite duration of the project, then he was contractually obligated to continue to perform until it was completed and appellant’s promise of an additional $12 per hour would be unenforceable because it was not based upon any new consideration. See Davis & Co. v. Morgan, 117 Ga. 504 (43 SE 732) (1903); Sineath v. Lane Co., 160 Ga. App. 402, 405 (287 SE2d 341) (1981); Hiers-Wright Assoc. v. Manufacturers Hanover Mtg. Corp., 182 Ga. App. 732, 734 (2) (356 SE2d 903) (1987). If, on the other hand, the contract was of indefinite duration and thus terminable at the will of either party, then appellee was not contractually obligated to continue to perform and appellant’s promise of an additional $12 per hour would be enforceable because it was based upon new consideration. See OCGA § 34-7-1.

As written, the provisions of the contract could be construed to mean that appellee was obligated to complete the project. On the other hand, those provisions may only denote the details of appellee’s responsibilities, and the specifics of his compensation should he choose to remain on the job until it was completed. This ambiguity as to the contemplated duration of appellee’s services remains even after application of applicable statutory rules of construction. Accordingly, this is one of those rare cases wherein construction of the contract was for the jury rather than the trial court. “Where the original instrument creating the employment is ambiguous as to whether the hiring was indefinite and determinable at. . . will... , or was for a definite period, a determination of the question would be for the jury.” National Mfg. &c. Corp. v. Dekle, 48 Ga. App. 515, 522 (3) (173 SE 408) (1934). In such cases, “ ‘there is no inflexible rule of law as to the length of time the hiring is to continue. The question . . . will be governed by the circumstances of each particular case.’ ” McClure v. Leasco Computer, 134 Ga. App. 871, 872 (216 SE2d 689) (1975). It follows that the trial court properly denied appellant’s motions for directed verdict and judgment n.o.v. as to his contractual liability for the promised additional compensation.

2. By means of various instructions, the trial court submitted the issue of contractual ambiguity vel non to the jury. The trial court also charged the jury on several of the statutory rules of construction. Appellant enumerates the giving of these charges as error.

The trial court erred in charging the jury on the issue of contractual ambiguity vel non. It is for the trial court, not the jury, to determine the existence or non-existence of an ambiguity in a contract. See Hearn v. Old Dominion Freight Lines, 172 Ga. App. 658 (1) (324 SE2d 517) (1984); Jones v. Barnes, 170 Ga. App. 762, 765 (318 SE2d 164) (1984). The trial court also erred in charging the jury on the statutory rules of construction. “ ‘ “The rules of law set forth in the Code with respect to the construction of contracts are framed for the guidance and direction of the courts.” ’ ” Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (1986).

As we have held in Division 1, the contract at issue in the instant case remained ambiguous even after application of the statutory rules of construction. Accordingly, the trial court should have instructed the jury that the contract was ambiguous and that resolution of that ambiguity required consideration of evidence outside of the four corners of the contract. See Bennett v. Dove, 93 Ga. App. 57 (3) (90 SE2d 601) (1955). Instead, the trial court erroneously charged that it was for the jury to determine whether an ambiguity existed and that, in making that determination, the jury was to apply the statutory rules of construction to the four corners of the contract. Under the erroneously given charge, the verdict that was returned for appellee may have been based upon the jury’s mistaken legal determination that the contract was, on its face, an unambiguous terminable-at-will employment contract. Accordingly, the error in the trial court’s charge was not harmless and requires the grant of a new trial. See generally Clarke County School Dist. v. Madden, 99 Ga. App. 670, 679 (3) (110 SE2d 47) (1959).

3. Appellant enumerates as error the denial of his motions for directed verdict and judgment n.o.v. as to his liability for attorney’s fees under OCGA § 13-6-11.

In the main action, appellee was the plaintiff and he was, therefore, entitled to seek attorney’s fees pursuant to OCGA § 13-6-11 for his prosecution of that claim. As to appellant’s counterclaim, however, appellee was the defendant and he was, therefore, not entitled to seek attorney’s fees pursuant to OCGA § 13-6-11 for his defense of that claim. “[Defendants cannot recover attorney[’s] fees against plaintiffs under [OCGA § 13-6-11]. [Cits.]” DuBose v. Box, 246 Ga. 660, 669-670 (5) (273 SE2d 101) (1980). Appellee’s evidence showed only the amount of reasonable attorney’s fees that would be attributable to both his prosecution of the main action and his defense of appellant’s counterclaim. There was no evidence showing the amount of reasonable attorney’s fees that would be attributable to only appellee’s prosecution of the main action. “Since there can be no recovery under OCGA § 13-6-11 for expenses incurred in the defense of a claim ([cit.]), and [appellee] failed to prove the attorney[’s] fees involved in pursuit of his [main action, the trial court’s failure to direct] a verdict in favor of [appellant] was [erroneous]. [Cits.]” Batchelor v. Tucker, 184 Ga. App. 761, 763 (2) (362 SE2d 493) (1987).

Judgment reversed.

Deen, P. J., McMurray, P. J., Birdsong, Sognier, Pope and Cooper, JJ., concur. Banke, P. J., and Beasley, J., dissent.

Beasley, Judge,

dissenting.

The verdict and the conforming judgment should be affirmed. The charges to the jury on certain principles of contract law, if it was error to give them, were harmless. The award of attorney fees under OCGA § 13-6-11, which included the expense of defending against the counterclaim, was justified in the circumstances.

As correctly concluded in Division 1, the ambiguity in the contract required determination of facts found by the jury based on evidence presented to it. The trial court had come to this same conclusion in ruling on plaintiff’s motion for partial summary judgment. In an order setting out the undisputed facts and the law applicable thereto which, although OCGA §§ 9-11-56 (c); OCGA § 9-11-52 (a) do not require it, is enlightening as an explanation to the parties and helpful to the appellate court, the judge extracted the issue clearly and articulated the legal principles for the construction of contracts. The judge carefully detailed the respective roles assigned to court and jury for the resolution of contract disputes. Relying in part on Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (1986), which is quoted by the majority, and applying the rules of construction in OCGA § 13-2-2, the court concluded that there was still ambiguity, so that the fact of the intention of the parties was up to a jury to find.

In this context, the parties went to trial, each side being of the opinion that the contract was unambiguous in its favor. Although defendant had made no motion for summary judgment, he contended throughout the trial that the contract clearly and unambiguously supported his position. That was also the basis for his motion for directed verdict and for judgment n.o.v., the denials of which he enumerates as error for the very same reason.

Defendant/appellant insisted on two interrogatories to the jury, over plaintiff’s objection: “Do you find that under the original contract the parties’ intent was for [plaintiff] to work until the project was completed[?],” which the jury answered “No”; “Do you find that the promise to pay [plaintiff] the additional $12.00 an hour was supported by legal consideration as that term was defined to you[?],” which the jury answered “Yes.”

Thus the appellant is mistaken when he states, as the caption in that portion of his brief setting out the argument addressing the three enumerations dealing with jury instructions: “The trial court was required to determine as a matter of law whether the contract was ambiguous and committed error by submitting the issue of whether an ambiguity existed to the jury.” The court had undertaken and fulfilled its duty to ascertain whether the contract was unambiguous as a matter of law and, after concluding it was still ambiguous after applying the rules of construction, it submitted the contract to the jury to resolve the remaining ambiguity by a finding of fact as to the intention of the parties. This was in conformity with the sense of the ruling, cited by the majority, in Bennett v. Dove, 93 Ga. App. 57 (3) (90 SE2d 601) (1955): “ ‘The construction of contracts is a prerogative of the courts which is delegated to the jury only when there are ambiguous expressions in the contract and resort must be had to aliunde testimony in order to clarify the meaning of the language used, as it was understood by the parties, and thus make plain their real intention.’ Ludden & Bates Southern Music House v. Dairy & Farm Supply Co., 17 Ga. App. 581 (87 S.E. 823).”

The. court’s statement to the jury of the law governing the ascertaining of the intention of the parties when there is a dispute between them on this matter was not error. It is not error to charge correct legal principles applicable to a case. Davidson v. Consolidated Quarries Corp., 99 Ga. App. 359, 373 (7) (108 SE2d 495) (1959); see also Griffith v. Newman, 217 Ga. 533, 540 (4) (123 SE2d 723) (1962). That is particularly true when the now-targeted instructions are considered as part of the whole charge, which must be done. Shirley v. State, 245 Ga. 616, 619 (3) (266 SE2d 218) (1980). The instructions were not inappropriate, taking into account the defendant’s efforts to persuade the jury that the contract was unambiguous in his favor.

None of the cases cited by the majority holds that it is error, much less reversible error, to instruct the jury on the principles now challenged. By way of the interrogatories which directed the jurors’ attention to finding the contracting parties’ intent, by the plethora of testimony and evidence outside of the written contract, and by the court’s charge in its entirety, it is manifest that the jury was not misled as to its proper function in deciding the case and reaching a verdict. The jury’s answers to the interrogatories also bear this out. It did not find that it was the parties’ intent by the contract that the contractor be found to work until the project was completed. The jury found that there was new consideration for the promise to pay an additional hourly wage if the contractor completed the project, implying of necessity that they took into consideration all of the evidence and found that it had not been the intention of the parties originally to bind the contractor to finish the job.

Decided March 13, 1990

Rehearing denied March 28, 1990

Adams, Gardner, Ellis & Inglesby, George L. Lewis, for appellant.

Oliver, Maner & Gray, Wendy W. Williamson, for appellee.

While instructing the jury on what constitutes a contract and how to ascertain the meaning of its terms, the court merely apprised the jury that, in effect, it could not construe the contract as a matter of law by looking at the four corners of the contract and applying the legal rules of construction, as there was ambiguity and it remained despite the completion of this process. The jury took it from there. This was in compliance with the three-step process of contract construction reiterated in Travelers Ins. Co. v. Blakey, supra at 700. There was no error, as there was in Travelers, where the trial court did not apply the rules of construction after first finding an ambiguity and, concluding that it still remained, only then submitting the ambiguity to the jury.

Further, appellant fails to relate each enumeration to a corresponding section of the argument in the brief. He fails also to show where each of plaintiff’s requested charges and defendant’s related objection and the corresponding giving of the charge appear in the record. Rule 15 (c) (3). See Law v. Smith, 226 Ga. 298 (174 SE2d 893) (1970); Benefield v. Benefield, 224 Ga. 208, 209 (5) (160 SE2d 895) (1968); Hicks v. Maple Valley Corp., 223 Ga. 577, 578 (156 SE2d 904) (1967); Chapman v. Gray, 8 Ga. 337, 339 (1850).

I am authorized to state that Presiding Judge Banke joins in this dissent.


author: Carley, Chief Judge.

text:
    A89A2211.
    MAYER ELECTRIC SUPPLY COMPANY, INC. v. FEDERAL INSURANCE COMPANY.
    (393 SE2d 270)
   Carley, Chief Judge.

One Buckhead Plaza Associates (Owner) contracted with Trans-Con Construction Company (Contractor) for the construction of an office building. The Contractor, in turn, subcontracted to have the electrical work done by Electrical Management, Inc. (Subcontractor). The Subcontractor was supplied with material for the project by appellant-plaintiff Mayer Electric Supply Company (Materialman). Before construction of the building was completed, the Materialman filed its claim of lien for such unpaid materials as it had supplied to the Subcontractor. A bond was secured from appellee-defendant Federal Insurance Company (Surety) to discharge the Materialman’s lien. Thereafter, the Owner continued to make payments to the Contractor and the Contractor continued to make payments to the Subcontractor. However, the Subcontractor eventually filed for bankruptcy and abandoned the job. The building was subsequently completed and the Contractor received the full contract price from the Owner.

The Materialman filed this suit against the Surety, seeking to recover on the bond. Subsequently, the Surety moved for summary judgment on the ground that the Owner’s payment of the full contract price to the Contractor was a complete defense. The trial court granted summary judgment in favor of the Surety, and the Material-man appeals.

The “contract price of the improvements made or services performed” establishes the maximum extent to which an owner’s property may be subject to materialmen’s liens. OCGA § 44-14-361.1 (e). However, an owner’s mere payment of the full contract price to the contractor, standing alone, is not and has never been a complete defense to foreclosure of a materialman’s lien. “The obvious purpose of the statute is to protect materialmen who comply with its terms. If it is held that mere payments to the contractor in discharge of the contract price would defeat the lien of materialmen, the whole statute which undertakes to authorize liens for materialmen would be avoided.” Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499, 504 (3) (83 SE 210) (1914).

“[T]he owner of the real estate improved, who has paid the agreed price or any part of same, may set up the payment in any action brought and prove by competent and relevant evidence that the payments were applied as provided by law, and no judgment shall be rendered against the property improved.” (Emphasis supplied.) OCGA § 44-14-361.1 (a) (4). Thus, an owner must not only show that full payment was actually made to the contractor, he is also “required to show that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor’s statutory affidavit concerning such indebtedness had been obtained. [Cits.]” Jones Mercantile Co. v. Lyn-Har, Inc., 245 Ga. 812, 813 (267 SE2d 251) (1980). Therefore, it is entirely possible that an owner who has paid the full contract price to the contractor may nevertheless still have his property subjected to enforceable materialmen’s liens to the maximum extent of the full contract price. “[Although the owner had paid the contractor the entire contract price, this would provide no defense to the action unless the owner further showed that the affidavit of the contractor had been obtained, or that the money had in fact been used for payment of labor and materials. [Cit.]” Roberts v. Ga. Southern Supply Co., 92 Ga. App. 303, 306 (1) (88 SE2d 554) (1955). Since the Owner in the instant case was unable to secure the Contractor’s statutory affidavit, the only issue for resolution is whether the Surety met its burden of showing that the sums that were paid by the Owner to the Contractor as full payment of the contract price were otherwise “properly appropriated” so as to defeat the Materialman’s lien.

In determining whether payments have been “properly appropriated,” the law provides that if no materialmen “have filed and recorded liens, but all have claims of lien, the payment by the contractor, out of money furnished him by the owner, of any such claims will be sufficient to discharge the liability of the owner to any other materialmen or laborers to the extent of the amount paid. If any material-man or laborer has filed his lien, then payment to others in preference to him would be at the peril of the owner; and if any such lien were finally reduced to judgment, it could be enforced against the owner[’s property]. This construction of the act requires that materialmen and laborers must be paid to the extent of the contract price; that whenever a materialman or laborer presents a claim within the time he would be compelled to file and record his lien, the discharge of his claim by the contractor will protect the owner to this extent against unsatisfied claims of other materialmen and laborers; but that where claims of liens have been duly recorded, payments made to other materialmen and laborers with the money of the owner will be no reply to the claims of such materialmen or laborers so recording their liens.” Green v. Farrar Lumber Co., 119 Ga. 30, 34 (46 SE 62) (1903). Thus, so long as no materialmen’s liens have previously been filed, payment that is made to any materialman as a potential lien claimant is payment which is “properly appropriated” and may be set up by the owner in defense of any subsequently filed materialman’s lien. See Jones Brick Co. v. Seagler Bros., 146 Ga. 19 (1) (90 SE 473) (1916). If, however, materialmen’s liens have previously been filed, payment that is thereafter made to any other materialman as a potential lien claimant is not payment which is “properly appropriated” and may not be set up by the owner in defense of the subsequent foreclosure of those previously filed liens. “ Tf a claim of lien has been filed and recorded, then the owner must see that such materialman or laborer is satisfied out of the money paid by him to the contractor, or he will be held liable for the amount in the event, upon suit brought, it should be determined that the claim was valid.’ ” (Emphasis omitted.) Whatley v. Alto Corp., 211 Ga. 718, 723 (1) (88 SE2d 398) (1955).

The analysis is somewhat different when the contractor has abandoned his contract with the owner. In cases of abandonment, the original contract price no longer establishes the maximum extent to which an owner’s property may be subject to materialmen’s liens. “If the contractor abandons his contract, the owner may have it completed and charge the necessary cost of completion against the contract price, before being liable either to the contractor or to the materialman. . . . [I]f [the owner] does complete the work, the necessary cost of doing so may be deducted from the contract price, and the property will only be subject to the lien of the materialman to the extent of the balance.” Prince v. Neal-Millard Co., 124 Ga. 884, 893 (2, 3) (53 SE 761) (1906). Thus, it is the amount of the original contract price less the expenses incurred in completion of the abandoned project that represents the extent to which the owner’s property may be subject to materialmen’s liens. Accordingly, if the total expense incurred by the owner in completing the abandoned project is itself in excess of the original contract price, then the original materialmen no longer have any lien rights to enforce. Rowell v. Harris, 121 Ga. 239 (48 SE 948) (1904). If, on the other hand, the total expense incurred by the owner in completing the abandoned project is less than the original contract price, the property is, to that extent, subject to foreclosure of the original materialmen’s liens unless the owner can show that “such balance has been lawfully paid out upon the making of an affidavit as provided by the statute, or has been advanced to the [original] contractor and applied as indicated in the case of Green v. Farrar Lumber Co., supra. . . .” Prince v. Neal-Millard Co., supra at 894 (2, 3).

Applying these principles to the facts of the instant case demonstrates the following: The Contractor did not abandon the contract. Accordingly, the Owner’s property is otherwise subject to material-men’s liens to the full extent of the original contract price. Compare Rowell v. Harris, supra. Contrary to the Surety’s assertions, the consequences resulting from the abandonment of the project by the Subcontractor were the responsibility of the Contractor and that abandonment has no bearing on the Materialman’s right to foreclose its lien for such materials as were furnished to the Subcontractor and actually used in the project. “ ‘[W]here the original contractor completes the work in accordance with the contract, the property owner will be responsible to mechanics, materialmen, and subcontractors who have fulfilled their contracts, and who have observed the requirements ... of the statutes for the amount of their claims that do not aggregate more than the contract price, although the owner may have paid the original contractor the full contract price. . . .’” McCrary v. Barberi, 100 Ga. App. 167, 170 (110 SE2d 426) (1959). The Material-man filed its claim of lien before the Owner paid the full contract price to the Contractor. Accordingly, the Surety did not meet its burden of showing that the sums paid by the Owner to the Contractor as full payment of the contract price were “properly appropriated” so as to defeat the Materialman’s lien. As previously noted: “[W]here claims of liens have been duly recorded, payments made to other materialmen and laborers with the money of the owner will be no reply to the claim of such materialmen or laborers so recording their liens.” Green v. Farrar Lumber Co., supra at 34. It follows that the trial court erred in granting summary judgment in favor of the Surety.

Decided March 13, 1990

Rehearing denied March 28, 1990

Macey, Wilensky, Cohen & Wittner, Harvey D. Harkness, for appellant.

Alston & Bird, John I. Spangler III, for appellee.

Robert B. Baker, Jr., G. Stephen Parker, William O. Miller, amici curiae.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A2212.
    TOYS ‘R’ US, INC. v. ATLANTA ECONOMIC DEVELOPMENT CORPORATION.
    (393 SE2d 44)
   Cooper, Judge.

This is an appeal of the grant of summary judgment by the trial court to appellee on appellant’s breach of contract and tort claims.

Appellee contracted to sell, and appellant contracted to purchase, real property in an industrial park upon which appellant intended to construct a regional warehouse. The contract specified that prior to the closing, appellee was to furnish a building pad built to certain grade and soil bearing specifications. Appellee, a non-profit corporation which encourages industrial and business development in underutilized areas of Atlanta through the planning and development of industrial parks, employs no construction personnel and does not perform the construction aspect of industrial park development. Consequently, appellee hired a separate construction company to construct the building pad and a separate engineering firm to design the building pad, manage and inspect the work of the construction company, and act as a liaison with a soils testing firm to perform the requisite soil density tests. The engineering firm subsequently subcontracted with a soils testing firm to test and inspect structural fill placement. Appellee approved the subcontract after the date that appellee had issued its “Notice to Proceed” to the construction company. Thus, grading work began on the site prior to the commencement of soils testing. During the course of construction, the engineering firm, which was supervising the site work, kept appellee apprised of the progress of the work. The building pad was completed and inspected by appellant; the sale closed and appellant began construction of its warehouse. During such construction, appellant became aware that the walls were cracking and a portion of the floor slab appeared to be sinking, which according to a report submitted by the soils testing firm, was caused by “consolidation of uncompacted fill soil at the lower elevations.” Appellant filed suit against appellee and all contractors working on the project for the costs of repair. Summary judgment in favor of appellee was granted as to appellant’s claims against appellee.

1. Appellant first contends that the grant of summary judgment by the trial court on its three tort claims constituted error.

A. Appellant’s initial tort claim, that appellee is liable pursuant to a statutory exception to the general rule that an employer is not responsible for the torts of its independent contractors, is without merit. OCGA § 51-2-5 (5) does not apply because there is no evidence to show that appellee “actually exercised control over the manner and means of doing the details of the work. . . .” (Emphasis deleted.) Bentley v. Jones, 48 Ga. App. 587, 592 (173 SE 737) (1934). It is undisputed that appellee was not involved in the daily progress of the construction. Appellant contends that appellee’s right to approve the soils testing firm and to direct the contractor when to begin construction constituted such control as to render appellee liable. However, “[i]t is not enough that [the employer] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right . . . does not mean that the contractor is controlled as to his methods of work. . . . There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. [Cits.]” Slater v. Canal Wood Corp., 178 Ga. App. 877, 880 (345 SE2d 71) (1986). The undisputed relationship between appellee and its independent contractors was such that, as a matter of law, OCGA § 51-2-5 (5) is inapplicable.

We also determine that appellee is not responsible under OCGA § 51-2-5 (3), which creates an exception to the general rule of non-responsibility “[i]f the wrongful act is the violation of a duty imposed by express contract upon the employer.” This provision has been interpreted as requiring an express obligation by the employer to be responsible for the independent contractor’s conduct. Fields v. B & B Pipeline Co., 147 Ga. App. 875 (250 SE2d 582) (1978). See Faubion v. Piedmont &c. Corp., 178 Ga. App. 256 (342 SE2d 718) (1986) (although decided in contract, previous tort cases were used as precedent for the interpretation of the code section). Appellee in no way assumed or held itself out to assume responsibility for the conduct of its contractors, and therefore there is no question of fact on this issue. Appellant’s argument that the inclusion of the specifications in the contractual description of the building pad created responsibility under this section, falls flat. The purpose of the specifications was to assure that appellant received the building pad it desired. “The agreement does not constitute substantial evidence of an intent . . . to guarantee an independent contractor’s strict day-to-day compliance with detailed construction procedures.” Uniroyal, Inc. v. Hood, 588 F2d 454, 464 (5th Cir. 1979). The cases of Hudgins v. Bacon, 171 Ga. App. 856 (321 SE2d 359) (1984) and Brewer v. Williams, 167 Ga. App. 151 (305 SE2d 891) (1983) cited by appellant are clearly distinguishable in that the builder/sellers therein (and also the investor in Hudgins) held themselves out as having the ability and expertise to build the home. Appellee was never obligated as a builder, nor did it hold itself out as such.

Finally, appellee did not “ratif[y] the unauthorized wrong of the independent contractor” pursuant to OCGA § 51-2-5 (6). There is no evidence to show that appellee, who performs no construction work and has no construction expertise, knew or should have known that uncompacted fill soil was being placed on the site. Merely giving the Notice to Proceed to the contractor, even if appellee was aware that a soils testing firm had not yet been retained, would not necessarily lead to such conclusion by one in the position of appellee. Wilmock, Inc. v. French, 185 Ga. App. 259 (363 SE2d 789) (1987).

B. The second tort claim is predicated on the breach by appellee of an implied duty to furnish the building pad in a skillful and workmanlike manner. As we discussed in Division 1, A., above, appellee cannot be held responsible for the torts of its independent contractors, so any asserted liability on this claim based upon the contractors’ conduct is unfounded. Further, as to appellee’s own actions, we find that there is no implied duty of appellee as claimed by appellant. The contract with appellee was not a construction contract, nor did appellee undertake any construction duties or skilled services with respect to the building pad. Appellee relied on its skilled contractors for such services. As such, the duty implied in every construction contract or in contracts for work or services does not exist in a situation such as the instant case. See Howell v. Ayers, 129 Ga. App. 899 (202 SE2d 189) (1973). The contract between appellant and appellee was not of that class of contract “that create [s] a relation from which the law implies duties a breach of which will constitute a tort. . . . [Cits.]” Bulmer v. Southern Bell Tel. &c. Co., 170 Ga. App. 659, 660 (317 SE2d 893) (1984).

C. Appellant’s assertion that appellee is liable under the “passive concealment” doctrine has no merit. The cases creating and interpreting this doctrine have been clear to limit it to controversies between residential homeowners and residential builder/sellers as an exception to the doctrine of caveat emptor. Worthey v. Holmes, 159 Ga. App. 262 (282 SE2d 919) (1981), aff’d 249 Ga. 104 (287 SE2d 9) (1982). Thus, “passive concealment” has no applicability to the case at bar.

2. In its second enumeration of error, appellant contends that the trial court erred in granting summary judgment on the three contract claims presented.

A. As to appellant’s claim that appellee breached Paragraph 5.2 (b) of the Sales Contract, in which appellee agreed to furnish the building pad, we agree with the trial court that such provision merged into the deed at closing and is therefore “considered as eliminated, abandoned or discarded.” Gray v. Lynch Contractors, 156 Ga. App. 473 (274 SE2d 614) (1980). The application of the doctrine of merger “depends upon the intention of the parties.” Bryant v. Turner, 150 Ga. App. 65 (256 SE2d 667) (1979). The Sales Contract clearly specifies certain provisions which are to survive closing, none of which include Paragraph 5.2 (b). The numerous amendments to the contract, while addressing many points, do not deviate from the sales contract on the issue of survival. The closing statement, which reiterates the survival provision in the contract and also specifies an additional provision that is to survive, makes no mention of Paragraph 5.2 (b). Finally, the closing statement recites that “[a]ll other provisions of the Sales Contract merge into the deed. ...” When, as here, the intent that a provision is to merge “affirmatively appears on the face of the relevant instruments themselves,” no further proof is required and summary judgment is appropriate. Ashburn Bank v. Reinhardt, 183 Ga. App. 292 (2) (358 SE2d 675) (1987).

Appellant cites several cases dealing with the part performance of a sales contract. All of these cases recognize, as we here hold, that the intention of the parties as to merger is the determining factor. Appellant further contends that this court has recognized an exception to the aforesaid rule regarding intent in sales contracts containing provisions to build. We have carefully reviewed the cases cited by appellant, primarily Holmes v. Worthey, supra, and Kuniansky v. Overmyer Warehouse Co., 406 F2d 818 (5th Cir. 1968), and determine that, notwithstanding that heretofore the application of this exception has been limited to contracts between residential homeowners and residential builder/sellers, appellee is not, and never held itself out to be, the entity to perform the construction work; appellee is not a builder/seller. The Kuniansky case, which was decided in a commercial context, is inapposite because the seller therein was in fact a builder/seller and further because the case relied on by the Fifth Circuit is a pre-Holmes case which reiterates the rule that intent governs the issue of merger. Holmes and later cases have clarified the limitations to the builder exception as stated herein. Since we have affirmed the trial court’s ruling on the issue of merger, we likewise do not reach the argument that Paragraph 5.2 (b) is a covenant and not a condition precedent.

Decided March 15, 1990

Rehearing denied March 28, 1990

Hicks, Maloof & Campbell, Bruce M. Edenfield, Virginia B. Peterson, for appellant.

Alston & Bird, Oscar N. Persons, Robert P. Riordan, Lokey & Bowden, Wayne C. Wilson, Terrence Lee Croft, F. Carlton King, Jr., for appellee.

B. Appellant’s second contract claim is based upon a breach of an implied obligation of appellee to furnish a building pad built in a skillful and workmanlike manner. As we decided in Division 2, A., the contract provision giving rise to the asserted implied obligation merged into the deed at closing, and consequently any contractual claim appellant may have had did not survive the closing. Notwithstanding the merger, “absent an express contractual duty [appellee] can not be held liable for damage caused by the collateral torts of independent contractors.” Faubion v. Piedmont Engineering &c. Corp., supra at 259. Likewise, as we discussed in Division 1 above, the contract creates no implied contractual duty of appellee as contended by appellant.

C. The trial court was also correct in granting summary judgment on appellant’s claim that Paragraph 3.1 (c) of the contract was breached. Appellee’s covenant therein that “[t]here are no facts known to Seller . . . which would have a material adverse effect on the Premises, the Contemplated Improvements or the Use . . . ,” relates to the time at which the contract was signed. The contract does not provide for any renewal of the covenant at the time of closing. It is undisputed that the covenant was accurate at the time the contract was signed.

Judgment affirmed.

Birdsong, J., concurs. Deen, P. J., concurs dubitante.