author: Johnson, Chief Judge.

text:
    A99A0093.
    WENDER & ROBERTS, INC. et al. v. WENDER.
    (518 SE2d 154)
   Johnson, Chief Judge.

William Wender and Donald Wender are brothers. They were major shareholders of Wender & Roberts, Inc. (“the company”), founded by their father, which owned and operated a chain of retail drugstores. Donald Wender was the president of the company. In order to avoid confusion over the brothers’ names, in this opinion William Wender will be referred to as “Wender,” and Donald Wender will be referred to as “the president.”

Wender had been embezzling money from the company. The president discovered the theft and asked Wender to resign his positions as a corporate officer, director and employee. The brothers and the company entered into a settlement agreement resolving all issues between them. Under the terms of this settlement agreement, Wender agreed to resign. In addition to resigning, the agreement required that Wender sell his stock to the company for significantly less than its market value. The agreement required the company to pay him for the stock in 120 monthly installments of $1,000 each. The agreement also required Wender to provide consulting services to the company at its request. In exchange for these consulting services, the company was required to pay Wender $45,000 per year from 1992 through 1996, and thereafter $20,000 per year through the end of 2001. The agreement further required the company to keep Wender’s health insurance and life insurance benefits in effect until the end of 2001.

The company paid Wender pursuant to the settlement agreement until 1995, when it stopped making payments for his consulting services. Wender sued the company and his brother, the president, for those payments. After Wender filed the lawsuit in 1996, the company also stopped making the $1,000 monthly payments due under the stock purchase portion of the settlement agreement. Wender then amended his complaint to seek recovery of both the unpaid consulting fees and the monthly stock purchase payments. The company and the president counterclaimed, alleging, among other things, fraud and breach of contract. They also sought rescission of the settlement agreement. Wender moved for summary judgment on both his complaint and the counterclaims. The trial court granted his motion as to all claims. The company and the president appeal, challenging the grant of summary judgment to Wender on his claims and on the counterclaims for fraud, breach of contract and rescission.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). When ruling on a summary judgment motion, the opposing party must be given the benefit of all reasonable doubt, and the court must construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). A party opposing a motion for summary judgment is entitled only to the benefit of reasonable inferences; unreasonable inferences have no probative value. Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 683 (3) (a) (498 SE2d 748) (1998). Thus, an inference cannot be based on mere conjecture or possibility or upon evidence which is too uncertain or speculative. Id.

Construed in favor of the president and the company, the evidence in this case shows that Wender is entitled to summary judgment on his claim for the monthly payments under the stock purchase agreement and on their counterclaims, but is not entitled to summary judgment on his claim for consulting fees. Accordingly, the rulings of the trial court are affirmed except as to the grant of summary judgment to Wender on his claim for consulting fees, which is reversed.

1. The company and the president assert that Wender is not entitled to summary judgment on his claim for consulting fees because on several occasions when he was requested to provide required consulting services he declined or otherwise failed to provide the requested services. Having reviewed the record, we agree that there are genuine issues of material fact as to whether the company is obligated to pay the consulting fees.

In an affidavit submitted to the trial court in response to Wender’s motion for summary judgment, the president stated that on two separate occasions, one involving a dispute with an employee and another involving a dispute with a company landlord, Wender was requested by the company to provide consulting services but declined. Less specifically, the president further stated that there were other instances since 1991 when the company tried to use Wender’s services but he was unwilling or unable to help. On the other hand, in his affidavit Wender states that he never declined or refused to provide consulting services to the company.

These conflicting affidavits create genuine issues of material fact as to whether Wender provided consulting services as required by the settlement agreement. Accordingly, summary judgment to him on the count of his complaint seeking payment for consulting services was erroneous and is reversed. OCGA § 9-11-56; City of Acworth v. John J Harte Assoc., 165 Ga. App. 438, 439 (2) (301 SE2d 499) (1983).

2. The company and the president contend the court should have found that the settlement agreement is unenforceable under the terms of an exhibit attached to it which provides that if Wender “materially omitted or understated the facts concerning [his] actions against the Company, then the Company’s release shall be null and void.” The president and the company claim that Wender understated the amount of money he embezzled from the company, and thus, they argue, the settlement agreement is null and void.

Contrary to their claim, there is no evidence in the record before us that Wender understated the amount of money taken. In fact, the president and the company have cited no evidence that Wender ever stated how much he took. During its investigations prior to the settlement, the company discovered approximately $300,000 had been embezzled. With that information in hand, the company decided to settle the matter quickly and without further investigation. The company and the president point to no evidence that Wender told them the discovered loss of $300,000 was the entire amount of money taken. Rather, the evidence shows only that Wender does not know how much money he actually took. The fact that the company and the president now believe that more than $300,000 may have been stolen is not proof that Wender misrepresented the amount, nor is it sufficient to create a genuine issue of material fact.

Moreover, the exhibit upon which the company and the president rely did not require Wender to reveal or even estimate how much money he embezzled. By its plain terms, the exhibit is simply Wender’s description of four different methods he used to embezzle company funds. In the exhibit, there is no representation by Wender as to the full amount of money taken. Likewise, there is no statement anywhere in the settlement agreement that the agreement is premised on Wender’s full disclosure of the exact amount of money he embezzled.

Accordingly, the claim that the settlement agreement is unenforceable on the basis that it is null and void because Wender understated the amount of money taken is not supported by the evidence. The trial court’s finding that the agreement is enforceable is therefore affirmed.

3. The president claims the agreement is ambiguous as to whether he is personally liable to Wender and that this ambiguity requires resolution by a jury. This argument is unpersuasive given the plain language of the contract.

The agreement, which Donald Wender signed in both his official capacity as company president and his personal capacity, provides:

The Company and DW [Donald Wender] hereby agree to indemnify and hold harmless WW [William Wender] from and against any and all losses, liabilities, costs, damages, and expenses (including but not limited to reasonable attorney’s fees) incurred by WW arising out of: (i) any breach of any term, condition or covenant of this Agreement by the Company or DW. . . .

This clear and unambiguous language obligates the president personally to indemnify Wender for losses caused by a breach of the agreement. Because the plain and unambiguous terms of the agreement are controlling, we need look no further to determine the intention of the parties regarding Donald Wender’s personal liability. See Terry v. State Farm &c. Ins. Co., 269 Ga. 777, 778-779 (2) (504 SE2d 194) (1998). The trial court did not err.

4. The president and the company complain that the settlement agreement is unenforceable because they were fraudulently induced into signing it by Wender’s misrepresentation of the full amount of money embezzled. Because of the alleged fraud, they conclude that the court should have denied summary judgment to Wender on both his complaint and on their fraud counterclaim. We disagree.

There are five elements to a claim of fraud: (i) false representation; (ii) scienter; (iii) intention to induce another to act or refrain from acting; (iv) justifiable reliance; and (v) damage. Smalls v. Blueprint Dev., 230 Ga. App. 556, 559 (1) (497 SE2d 54) (1998). In the record before us, there is no evidence of either a false representation by Wender or justifiable reliance by the president and the company.

As discussed in Division 2, the president and the company have failed to show by any evidence in the record that Wender misrepresented the full amount of money taken. However, they contend that because the Wenders had a fiduciary relationship when the settlement agreement was executed, Wender had an obligation to disclose the full extent of his embezzlement, and that his failure to do so amounts to a misrepresentation. This contention is without merit.

Although OCGA § 23-2-53 provides that it constitutes fraud to suppress a material fact when a party is under an obligation to communicate it to another, in this instance Wender had no obligation to communicate the full extent of his embezzlement because he did not have a fiduciary relationship with Donald Wender and the company when the settlement agreement was signed. The opinion in Harish v. Raj, 222 Ga. App. 248 (474 SE2d 624) (1996), is instructive. Contrary to the claims of the president and the company, a confidential and fiduciary relationship is not presumed between brothers or close friends. Id. at 250 (1). This is particularly true when one of the brothers is aware that the other has embezzled substantial amounts of money from their family business and where that particular misconduct is the very subject under investigation.

As in Harish, the Wenders dealt with each other at arm’s length and did not blindly rely upon representations made by one another when preparing and executing the settlement agreement. Before the agreement was signed, the president and the company conducted a thorough in-house investigation, were fully aware that certain corporate records were missing, hired an accounting firm to examine the available corporate records, and were fully aware that Wender had taken at least $300,000 of company funds. Moreover, Wender, the president and the company retained attorneys to represent their respective interests during the negotiation and execution of the agreement. Under these circumstances, although the Wenders “ ‘may have owed each other a fiduciary duty in other respects, there is no basis in this case for an inference that a fiduciary or confidential relationship existed between them with respect to the transaction at issue! [Cit.]” (Emphasis in original.) Harish, supra at 251 (1). Under the circumstances of this case, because no fiduciary relationship existed with respect to the execution of the settlement agreement, Wender had no legally enforceable obligation to disclose the full amount of money he embezzled, and his silence does not amount to a misrepresentation.

Furthermore, even if we assume that by his silence Wender misrepresented the amount of money taken from the corporation, the element of justifiable reliance is not shown by any evidence in the record. In order for a genuine issue of material fact to exist as to justifiable reliance, there must be some evidence that the president and the company exercised their duty of due diligence to ascertain the truth of the matter and to avoid damage. Fowler v. Overby, 223 Ga. App. 803, 804 (1) (478 SE2d 919) (1996). Although questions of due diligence often must be resolved by the trier of fact, that is not always the case. A party may fail to exercise due diligence as a matter of law. Id.

In this case, the president and the company executed the agreement without requiring Wender, as conditions of the settlement, to disclose the location of the missing financial records or to tender any written estimate of the total amount of money he had embezzled. Nor did they seek to delay execution of the settlement agreement until they could obtain a more accurate accounting. Under these circumstances, any reliance by the president and the company on the allegedly limited disclosures made by Wender must be considered unjustified as a matter of law. See Consulting Constr Corp. v. Edwards, 207 Ga. App. 296, 297-298 (1) (427 SE2d 789) (1993).

Because two essential elements of the claimed fraudulent inducement are missing, the trial court did not err in rejecting fraud as a defense to summary judgment on Wender’s complaint and in granting summary judgment to Wender on the fraud counterclaim.

5. Donald Wender and the company claim that genuine issues of material fact exist as to their counterclaim for rescission of the contract. No such issues exist.

A party seeking to rescind a contract for fraud must restore or tender back the benefits received under the contract, or show a sufficient reason for not doing so. A party rescinding a contract is not required to return consideration when to do so would be unreasonable or impossible. Restoration does not require that the other party be placed in the exact situation it was in before the contract, but only that it be placed substantially in its original position. The rescinding party must derive no unconscionable advantage from the rescission. Meadow River Lumber Co. v. Univ. of Ga. &c., 233 Ga. App. 169, 174-175 (2) (503 SE2d 655) (1998); Intl. Software &c. v. Atlanta Pressure &c. Co., 194 Ga. App. 441-442 (390 SE2d 659) (1990); OCGA § 13-4-60.

The president and the company have made no showing that they offered to restore to Wender the benefits they have received under the contract. Although we do not believe they were required to offer to return Wender to his positions with the company, in order to rescind the contract they were required to make some offer regarding the stock that Wender sold to them at a significantly reduced price, such as returning it to him for the money already paid or offering to pay him the full value of the stock. Any lesser offer of restoration would not put Wender in substantially the same position as before the agreement.

Furthermore, the attempt of the president and the company to rescind the agreement was untimely. They did not inform Wender that the contract rescission had occurred until they served their pleadings in this case in April 1996. As a general rule, rescission must occur prior to, and as a condition precedent to, the bringing of an action; it is too late to claim rescission by asserting it for the first time in the pleadings. Consulting Constr. Corp. v. Edwards, supra at 298 (1). The record contains no basis for departing from this rule. The trial court therefore did not err in granting summary judgment to Wender on the rescission counterclaim.

6. The president and the company argue the court erred in granting summary judgment against them on their counterclaim for breach of contract because Wender failed to provide consulting services as required by the settlement agreement. Our review of the counterclaim, however, shows that the president and the company never asserted a breach of contract claim on this ground. Rather, their only counterclaim for breach of contract is that Wender failed to return property to the company as required by the settlement agreement. Because they did not assert a counterclaim for breach of contract on the basis that Wender did not provide consulting services, their enumeration of error alleging such a claim for the first time is without merit. See generally Sage Technology v. NationsBank &c., 235 Ga. App. 405, 406 (1) (509 SE2d 694) (1998); Ale-8-One of America v. Graphicolor Svcs., 166 Ga. App. 506, 507 (3) (305 SE2d 14) (1983).

7. The president and the company contend the trial court exceeded its authority by ordering them to make all future payments due under the terms of the settlement agreement and to provide Wender with insurance coverage as required by the agreement. Although a general prayer for relief was included in Wender’s amended complaint, he did not specifically pray for either of these forms of relief.

Decided May 18, 1999

Reconsideration denied June 1, 1999 — Cert. applied for.

Macey, Wilensky, Cohen, Whittner & Kessler, Susan L. Howick, for appellants.

Kitchens, Kelley & Gaynes, Joel S. Arogeti, Stephen V. Kern, for appellee.

A superior court is authorized to grant appropriate relief, including equitable relief, even though there is no express prayer, provided the propriety of the relief has been litigated and the opposing party has had an opportunity to assert defenses relevant to the relief. See Church v. Darch, 268 Ga. 237, 238 (486 SE2d 344) (1997); OCGA § 9-11-54 (c). The issue of enforceability of the agreement was fully litigated before the trial court, which found that the agreement was valid and enforceable.

In addition, the issue of the president’s personal liability under the terms of the agreement was litigated. Considering the evidence introduced as to the financial condition of the president and the company and the other issues litigated, the trial court reasonably could have concluded that unless it granted this additional relief, a fair risk would exist that Wender’s contractual rights would not be adequately protected. In the exercise of its power, the superior court could grant such additional relief as it deemed necessary in its sound discretion to protect and effectuate its judgment. Ga. Const. of 1983, Art. VI, Sec. I, Par. II. The president and the company were given a full and fair opportunity to litigate the enforceability of the entire contract and cannot now complain. Church, supra.

8. Wender’s motion for imposition of damages or penalties for frivolous appeal is denied.

Judgment affirmed in part and reversed in part.

Andrews and Ruffin, JJ, concur.

       In support of this enumeration of error the president and the company rely on the same argument addressed in Division 1 concerning the court’s improper grant of summary judgment to Wender on his complaint for consulting fees.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A99A0137.
    EDENFIELD v. THE STATE.
    (519 SE2d 452)
   Andrews, Judge.

Randall Edenfield appeals from the denial of his motion for new trial following his conviction of burglary. Edenfield broke into the lumber yard of the Caribbean Lumber Company in Pooler, Chatham County, Georgia, and stole tools kept on the premises. Edenfield contends he was denied effective assistance of trial counsel because his attorney failed to file a motion to suppress evidence. We disagree.

A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Here, [Edenfield] must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel.

(Citation and punctuation omitted.) Harper v. State, 232 Ga. App. 224, 226 (2) (501 SE2d 591) (1998). “This Court will not presume a deficiency from the mere failure to file standard pretrial motions, including a motion to suppress.” Id.; Edwards v. State, 224 Ga. App. 332, 334 (3) (480 SE2d 246) (1997). Rather, to establish a deficiency, Edenfield must make a strong showing that had the motion been filed, the evidence would have been suppressed. E.g., Roberts v. State, 263 Ga. 807, 809 (2) (e) (439 SE2d 911) (1994); Sewell v. State, 229 Ga. App. 685, 687-688 (a) (494 SE2d 512) (1997). He did not make that showing.

At the motion for new trial, Edenfield examined his trial attorney and submitted his trial transcript. Edenfield’s attorney testified he chose not to file a motion to suppress the evidence of tools and a pair of binoculars police found on Edenfield’s person because he believed the police had valid reasons for stopping, frisking, and searching Edenfield. The trial testimony of the arresting officer supports counsel’s opinion.

At about 1:00 a.m., January 8, 1997, Corporal Stanley of the Pooler Police Department noticed a truck parked about 50 to 60 feet off Pine Barren Road near Caribbean Lumber Company as he was patrolling the area. The truck, which had not been there earlier in the day, was backed into a drive that led to a hunting trail. The trail was secured with a cable and signs that said: “Do Not Enter” and “no trespassing.” After Corporal Stanley determined the truck was registered to Edenfield and had not been reported stolen, he continued on his way.

Three hours later, Corporal Stanley patrolled Pine Barren Road again and saw the truck was still there. He also saw two men walking along the wood line toward the truck. He had not seen the men walking beside the road as he patrolled the area before. Concerned that the truck had run out of gas and interested in offering his assistance, Corporal Stanley proceeded toward the truck. As he approached, Corporal Stanley turned on his take-down lights because it was very dark. The area was not illuminated by streetlights. He noticed the men were wearing clothes that were wet and muddy, yet the area where they were walking was dry. Corporal Stanley asked the men what happened and asked where they had come from. The men identified themselves as Edenfield and Robert David Mixon and explained that some women picked them up at the truck earlier and took them to Randall’s Nightlife, a club about four miles away, and that they had to walk back. When Corporal Stanley told the men that Randall’s Nightlife had been closed for about a month, they changed their story and said they had been to Spanky’s, but did not go in.

Corporal Stanley testified that these circumstances made him suspicious. Just as his backup was arriving, Corporal Stanley noticed a bulge beneath the chest area of Edenfield’s shirt. Corporal Stanley patted the bulge and asked what it was. Edenfield, revealing a pair of binoculars, explained: “Oh, that’s binoculars. I carry them with me everywhere I go.”

Corporal Stanley told Corporal Schmitt, who had just arrived, that he was “getting conflicting stories” about what was going on. At that point, Mixon said he wanted to talk with Corporal Stanley privately. While Edenfield waited with Corporal Schmitt at the patrol car, Corporal Stanley stood aside with Mixon, frisked him for weapons, and found a pair of wire cutters in his back pocket. A piece of wire was still in the blade. Mixon then told Corporal Stanley that he could not “lie” and that he had “been in trouble with the law.” Mixon said he and Edenfield had broken into the lumber yard and taken a set of tools. He showed Corporal Stanley where the tools were hidden, about 25 feet away in a swampy area in the woods. Corporal Stanley arrested Mixon and placed him in the patrol car. Corporal Stanley then searched Edenfield and found a pair of pliers, a socket, and a ratchet in his pockets. Edenfield argues these items should have been suppressed because Corporal Stanley had no legitimate reason to stop and question the men and no justification to search Edenfield.

Corporal Stanley was authorized to approach Edenfield and Mixon as they walked along the wood line toward the truck to determine whether the two were in trouble and needed help. Simply approaching Edenfield and Mixon and offering assistance did not constitute a “seizure” under these circumstances. See Buchnowski v. State, 233 Ga. App. 766, 767 (1) (505 SE2d 263) (1998). Further, because a reasonably prudent person would be warranted in believing his safety was in danger under the circumstances as they evolved — the late hour, Edenfield’s and Mixon’s muddy clothes, and the suspicious explanation of their whereabouts — Corporal Stanley was authorized to pat the bulge on Edenfield’s chest to determine if it was a weapon. See Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968); Thompson v. State, 230 Ga. App. 131, 132-133 (495 SE2d 607) (1998). Finally, after Mixon confessed to the burglary, implicated Edenfield, and revealed the location of the stolen tools, Corporal Stanley had probable cause to arrest Edenfield and to conduct a search of his person incident to the arrest. E.g., Johnson v. State, 258 Ga. 506, 507 (2) (371 SE2d 396) (1988); State v. Sumlin, 224 Ga. App. 205, 208 (4) (480 SE2d 260) (1997).

Decided May 21, 1999

Reconsideration denied June 1, 1999.

Randall M. Clark, O. Dale Jenkins, for appellant.

Spencer Lawton, Jr, District Attorney, Jon Hope, Assistant District Attorney, for appellee.

Because Edenfield failed to show that a motion to suppress would have been granted had one been filed, the trial court did not err in finding that trial counsel’s representation of Edenfield did not amount to ineffective assistance of counsel. See Roberts, supra; Sew-ell, supra.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


text:
    A99A0583.
    NALL v. BILL HEARD CHEVROLET COMPANY.
    (518 SE2d 164)
   Andrews, Judge.

Ruthie L. Nall appeals from the trial court’s order granting Bill Heard Chevrolet Company (Bill Heard) summary judgment on Nall’s complaint alleging fraud and unfair and deceptive trade practices. For the following reasons, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant of summary judgment de novo and the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). Viewed in this light, the record reveals that on May 8, 1997, Nall bought a new Chevrolet Monte Carlo from Bill Heard, a Chevrolet dealership. The manufacturer’s suggested retail price for the car was $18,678. About a year after she bought the car, Nall had an accident and hit a deer. The car’s front end and right quarter-panel were damaged. When Nall’s husband was getting repair estimates, body shop employees noticed bondo on the right quarter-panel and informed him that the car had been damaged there before. Nall’s insurance carrier paid the almost $1,900 repair bill, less the deductible. Nall was satisfied with the repairs.

Bill Heard admitted that the car’s right quarter-panel had suffered minor damage in a collision on the sales lot prior to being sold to Nall. Bill Heard presented an affidavit from his service department manager, A1 Garcia, which stated that the damage was repaired by using bondo, by replacing molding, and by retouching paint. Garcia stated that the actual cost of the repairs was $110. The retail cost of the repairs (the price charged by the service department to the new car department) was $300 and is reflected in the itemized invoice attached to the affidavit.

Nall presented no evidence disputing Bill Heard’s actual or retail repair costs. The estimates she attached to her complaint were for damage caused by the collision with the deer. However, Nall did file the affidavit of Jerry Jones, a body shop owner, two days after the summary judgment hearing. Jones estimated he would have charged $1,050 to do the repairs Bill Heard did. Bill Heard moved to strike the affidavit. The order granting summary judgment does not indicate whether the late-filed affidavit or motion to strike was considered.

OCGA § 40-1-5 (b) provides:

prior to the sale of a new motor vehicle, a dealer must disclose to the buyer any damage which has occurred to the vehicle of which the dealer has actual knowledge and which costs more than 5 percent of the manufacturer’s suggested retail price to repair. Prior to the sale of a new motor vehicle, a dealer must also disclose to the buyer any damage which has occurred to the paint of which the dealer has actual knowledge and which costs more than $500.00 to repair. Damages shall he calculated at the actual cost of such repair.

(Emphasis supplied.)

In this case, Bill Heard’s undisputed actual repair costs were less than five percent of the manufacturer’s suggested retail price of the car. Consequently, it was not required to disclose the damage to Nall prior to the sale. OCGA § 40-1-5 (b). The repair estimate in the late-filed affidavit raises no material issue of fact as to Bill Heard’s actual costs.

An affidavit made in opposition to a motion for summary judgment not served at least one day before the hearing is barred by the Civil Practice Act from consideration as evidence unless the record discloses the trial court, in the exercise of its discretion, has allowed the affidavit to be served and considered.

Decided May 19, 1999

Reconsideration denied June 1, 1999 — Cert. applied for.

Roper & McPherson, John W. Roper, Dennis P. McPherson, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, Clarence M. Mullin, Joseph L. Waldrep, for appellee.

(Citations and punctuation omitted.) Brown v. Williams, 259 Ga. 6, 7 (4) (375 SE2d 835) (1989); Mayomi v. Portman Properties, 228 Ga. App. 848 (1) (493 SE2d 39) (1997). Because nothing in the record shows the trial court considered this untimely affidavit, we do not consider it as evidence.

Because Bill Heard had no duty to disclose the prior damage to Nall’s car under these circumstances, Nall could not seek relief “under this or any other provision of this Code, including [the Fair Business Practices Act] due to the fact that the new motor vehicle was damaged and repaired prior to the sale.” OCGA § 40-1-5 (i). The trial court did not err in granting Bill Heard summary judgment.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


author: Ruffin, Judge.

text:
    A99A0215.
    WHITE v. THE STATE.
    (519 SE2d 13)
   Ruffin, Judge.

A jury found David White guilty of first degree arson. White appeals, contending that the trial court erred in failing to direct a verdict of acquittal and that his trial counsel rendered ineffective assistance. White’s contentions lack merit and we affirm.

1. In two enumerations of error, White claims the trial court erred in denying his motion for directed verdict of acquittal and his motion for new trial based upon the trial court’s failure to grant a directed verdict. In a criminal case, alleging error based upon a trial court’s failure to grant a directed verdict of acquittal is tantamount to challenging the sufficiency of the evidence. Watson v. State, 235 Ga. App. 381, 383 (1) (509 SE2d 87) (1998); White v. State, 233 Ga. App. 24, 25 (503 SE2d 26) (1998). Accordingly, we review the denial of a motion for a directed verdict under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Howard v. State, 233 Ga. App. 724, 727 (2) (505 SE2d 768) (1998). As such, the defendant no longer enjoys a presumption of innocence and we view the evidence in the light most favorable to support the verdict. Watson, supra at 383-384.

Viewed in this light, the evidence demonstrates that in 1987 White purchased a house in Fitzgerald, Georgia for $1,500. In February 1994, White insured the house for $18,000. One month later, White increased the insurance coverage on the house to $30,000. On June 18, 1994, the house was destroyed by fire. Fireman Sheldon Conger testified that when the firefighters attempted to douse the flames, the fire had a “violent reaction to the water,” which indicated that the fire had been started with an accelerant such as alcohol, gasoline or kerosene. According to Conger, the house appeared to be uninhabited as there were no utensils or pots in the kitchen, no food in the refrigerator, and no pictures on the wall. Despite the vacant appearance of the house, Conger noticed fresh tire tracks in the yard. Agent Charles Durham, an arson expert with the Georgia Bureau of Investigation, investigated the fire and concluded that it had been intentionally set.

Durham questioned Andrew Deshazor, White’s co-defendant who claimed to rent the house from White. Deshazor told Durham that he and White were at the house on June 18, 1994, that White poured alcohol on clothes on the bed, and that he lit a match and ignited the clothing. Deshazor told Durham that White agreed to pay him $500 to pretend that he lived in the house and to have utilities established in his name. An insurance agent testified that the insurance company would not have insured the house had it known the house was not inhabited.

Although Deshazor pled guilty to one count of arson, he recanted at trial, testifying that he and White did not set fire to the house. However, the jury clearly chose to believe Deshazor’s statement to Durham rather than his trial testimony. As a prior inconsistent statement constitutes substantive evidence, the jury was authorized to do so. Parker v. State, 234 Ga. App. 137, 139 (3) (505 SE2d 784) (1998).

Pursuant to OCGA § 16-7-60 (a) (3), a person who by means of fire knowingly damages a house that is insured against loss is guilty of arson in the first degree. Here, the evidence was sufficient to authorize a rational trier of fact to find that White was guilty of arson. See Allen v. State, 222 Ga. App. 492 (474 SE2d 698) (1996).

White maintains that he was entitled to a judgment of acquittal because the only evidence linking him to the crime was the testimony of his accomplice, Deshazor. Under OCGA § 24-4-8, the uncorroborated testimony of an accomplice is insufficient to authorize a felony conviction. However, only slight evidence from an extraneous source linking the defendant to the crime is required to support the verdict. In the Interest of J. L., 229 Ga. App. 447, 448 (1) (494 SE2d 274) (1997). The evidence corroborating the crime may be entirely circumstantial. Slaughter v. State, 227 Ga. App. 739, 741 (1) (490 SE2d 399) (1997).

Decided June 1, 1999.

John A. Rumker, for appellant.

John C. Pridgen, District Attorney, Kathryn O. Fallin, Assistant District Attorney, for appellee.

In this case, evidence other than Deshazor’s testimony linked White to the crime. One witness, Susan Howard, testified that over a year before the house burned, she heard White offer her husband $500 to burn the house. In addition, the State presented evidence that White was $80,000 in debt, which constitutes circumstantial evidence of his motive. The evidence also showed that, less than two months before the fire, White obtained $30,000 in insurance on a house worth less than $10,000. Finally, the testimony of Conger and Durham established that the fire was intentionally set. Taken together, this evidence serves to corroborate Deshazor’s testimony. Bryant v. State, 179 Ga. App. 653 (347 SE2d 301) (1986). Accordingly, the jury was authorized to find White guilty of arson and the trial court did not err in denying his motion for directed verdict. Id.

2. White contends that he is entitled to a new trial in view of the ineffective assistance of his trial counsel. The ineffective assistance issue was timely raised in White’s motion for new trial. Following a hearing, the trial court denied White’s motion, apparently concluding that his trial counsel rendered effective assistance. As White failed to include a transcript of the hearing conducted on his motion for new trial, “we must presume that the trial court was authorized to find that [White] failed to meet the burden of showing a denial of his constitutional right to counsel.” See Johnson v. State, 270 Ga. 234, 239-240 (7) (507 SE2d 737) (1998); see also Williamson v. State, 234 Ga. App. 658 (1) (507 SE2d 765) (1998). Hence, we affirm.

Judgment affirmed.

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


author: Eldridge, Judge.

text:
    A99A0705.
    VSI ENTERPRISES, INC. et al. v. EDWARDS.
    (518 SE2d 765)
   Eldridge, Judge.

On June 28, 1996, Integrated Network Services, Incorporated (“INS”) merged with INS Acquisition Company, the wholly owned subsidiary of VSI Enterprises, Incorporated (‘VSI”). The INS shareholders received VSI shares as a result of the merger. Appellants are VSI and INS Acquisition Company.

Following the merger, INS delivered to its shareholders a notice explaining their right to dissent to the merger. The cover letter of the notice of dissenters’ rights was dated June 27, 1996. The notice stated that shareholders had a right to refuse to accept the consideration offered for their shares in the merger and to invoke their dissenters’ rights to seek a higher value for their shares. The notice included pertinent portions of the Corporation Code. The notice stated: “If you elect to demand payment for your shares under Article XIII of the Code, the payment demand must be sent to the offices of INS as set forth below and certificates evidencing shares of stock in INS must be deposited at said corporate offices on or before August 9, 1996.”

Peggy Edwards, plaintiff-appellee, was a stockholder of INS. On August 9, 1996, Peggy Edwards through her counsel gave notice to the company that she was invoking her dissenters’ rights. Her counsel did not include with the notice her stock certificates to INS because she did not have them.

In either May or June 1996, Ms. Edwards delivered to INS her old stock certificates of INS so that she could be issued new certificates, but she never received the replacement certificate. She believed that INS still possessed her shares.

Ms. Edwards’ dissenters’ notice stated that “INS already has possession of the stock certificate held by Peggy Edwards; she presented them to the company several months ago in order to have them reissued in her name, but INS failed to deliver new certificates to her.” However, in fact, INS, without Ms. Edwards’ knowledge, sent the replacement stock certificate to Ms. Edwards’ former counsel, James Johnson, on June 24, 1996, which was four days prior to the merger. She did not know that Johnson had possession of the certificate, and Johnson failed to deliver the certificate to her after he ceased to represent her.

After receipt of Ms. Edwards’ payment demand, appellants by letter acknowledged her demand and made a cash offer for her stock. Appellants made no objection to the lack of tender of the stock certificate, did not deny possession of the certificate; and did not tell her who had possession of her stock, but instead treated Ms. Edwards as if she were in full compliance with notice regarding dissenters’ rights. Appellants made a further offer to purchase her stock and advised her for the first time that her stock certificate had been delivered to Mr. Johnson. She was further advised by the appellants regarding how to treat the certificate as lost in the event that it could not be found by executing an affidavit and that the stock certificate would be replaced. The appellants never took the position with Ms. Edwards that she had lost her dissenters’ rights by failing to tender the stock certificate timely during the period to dissent.

When Ms. Edwards learned from appellants where the stock certificate was, she promptly retrieved it. On November 4, 1996, Ms. Edwards immediately tendered the stock certificate and a demand for $140,156 for her stock to appellants. On November 22, 1996, appellants in writing acknowledged receipt of the stock certificate and the demand and renewed the cash offer.

Appellants did not file suit within 60 days of the demand to determine the value of the stock. On January 17, 1997, Ms. Edwards filed this complaint, seeking payment of $140,156 for the shares, plus interest and attorney fees. In its answer, appellants raised only the defense of failure to timely tender her stock certificate when she first demanded payment.

On March 26, 1998, judgment was filed on the cross motions for summary judgment, the trial court ruled for Ms. Edwards and against appellants. Held:

1. Appellants contend that the trial court erred in granting summary judgment in favor of Ms. Edwards and denying it to them. We do not agree.

(a) OCGA §§ 14-2-1323 and 14-2-1324 of the Georgia Business Corporate Code were written to be construed in pari materia. OCGA § 14-2-1323 deals with a situation wherein a dissent is conditioned upon the timely tender of the stock certificate when the dissenter has possession of the stock certificate so that a tender can be made. OCGA § 14-2-1324, however, deals with a situation where the dissenter does not have possession of the stock certificate and cannot sell it.

OCGA § 14-2-1324 provides a method in which a corporation can prevent a dissenter from using the dissent as a way to hedge against the market by restricting transfer from the date of the demand. In this regard, the Comment to OCGA § 14-2-1323 states that the intent of the legislature for the tender of the stock certificate was to prevent a specific abuse:

The deposit of share certificates is necessary to prevent dissenters from giving themselves a 30-day option to make payment if the market price of the shares goes down, but sell their shares on the open market if the price goes up. If this kind of speculation were possible, all sophisticated investors might be expected to file demands that they would not intend to carry through unless the price should fall. If the shares are not represented by certificates, the corporation can prevent speculation by restricting their transfer, as authorized by section 14-2-1324. . . . Subsection (c) provides that a person who . . . does not deposit his share certificates as required by Section 14-2-1324 (a) loses his status as a dissenter entitled to payment for his shares. . . . The Code creates a bright line rather than leave the matter uncertain for extended periods.

Thus, the legislature expected there to be situations where the dissenter lacked actual physical possession of certified shares and provided a method to prevent the evil that delivery of the stock certificates was intended to prevent. Under OCGA § 14-2-141 (c), appellants failed to deliver the stock certificates to Ms. Edwards at the “shareholder’s address shown in the corporation’s current record of shareholders.”

[I]t is the duty of officers of a corporation to see that all transfers of its shares are properly made on its stock books, either by the stockholders themselves or persons having authority from them. A corporation transfers stock at its peril, and must be sure that the person to whom it issues the certificate is the true owner.

(Citations and punctuation omitted.) Frye v. Commonwealth Inv. Co., 107 Ga. App. 739, 741-742 (2) (131 SE2d 569), aff’d, 219 Ga. 498 (134 SE2d 39) (1963).

Thus, INS’ actions deprived Ms. Edwards of physical possession of her stock certificate and made actual delivery to her dependent upon a third party, her former attorney. It was the fault of INS that Ms. Edwards did not know where her stock certificate was; at a minimum, INS should have copied her with the transmittal letter to let her know that the certificate had been issued and that it had been sent to her former attorney. Absent a written authorization from Ms. Edwards in INS’ records, the stock certificate should not have been delivered to Mr. Johnson. As successors to INS, appellants as fiduciaries created this situation. See Rank Organization Ltd. v. Pathe Labs., 33 Misc.2d 748 (227 NYS2d 562) (N. Y. Sup. 1962). Appellants seek to take advantage of a situation of its own creation.

Facts and circumstances may arise, as in this case, where a dissenter has no stock certificate in his physical possession to surrender, although dissenting is the shareholder’s intent. Those circumstances may include situations where the stock was pledged as security, lost, destroyed, physically inaccessible, under a court order, stolen, wrongfully converted, or held by a third person. In such circumstances, 30 days is an insufficient time within which to reacquire physical possession to make a physical tender. Of course, the dissenter could make out an affidavit describing why the share is beyond his control and request that the corporation issue a new certificate; however, the corporation, by delay, has the power to make such issue of a new stock certificate outside the time to tender. Therefore, to request a new certificate would be a futile act. For all practical purposes, the inaccessibility of the shares to make a physical tender also renders the shares inaccessible to transfer on the open market. The circumstances render such shares the functional equivalent of uncertified shares under OCGA § 14-2-1324 and permit the corporation to protect itself by blocking transfer. Therefore, a notice of dissent, absent tender when tender is impossible, acts as substantial compliance with the statutory requirement and the true legislative purpose.

Under OCGA § 1-3-1 (c), “[a] substantial compliance with any statutory requirement . . . shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law.” See O’Neal v. Spencer, 203 Ga. 588 (1) (47 SE2d 646) (1948); City of College Park v. Atlantic S. E. Airlines, 194 Ga. App. 637, 639 (391 SE2d 460) (1990). OCGA § 14-2-1324 prevents OCGA § 14-2-1323 (c) from being “expressly so provided by law” under the circumstances of this case, because the statutory purpose has been satisfied without causing a legislative absurdity, i.e., unjust treatment when delivery is beyond the control of the dissenter. Bd. of Trustees of the Policemen’s Pension Fund v. Christy, 246 Ga. 553, 554 (1) (272 SE2d 288) (1980); Gen. Elec. Credit Corp. v. Brooks, 242 Ga. 109, 112 (249 SE2d 596) (1978); City of Jesup v. Bennett, 226 Ga. 606, 608-609 (2) (176 SE2d 81) (1970).

In interpreting statutes, the courts must look to the intent of the legislature and construe statutes to effectuate that intent. See City of Roswell v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991). Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden. City of Jesup v. Bennett, supra at 608-609. However, when the statute is construed with related statutes, in pari materia, creating a possible conflict, then such statutes should be harmonized whenever possible to assist in determining the legislative intent. Ryan v. Chatham County, 203 Ga. 730, 731-732 (48 SE2d 86) (1948); Monticello, Ltd. v. City of Atlanta, 231 Ga. App. 382, 383 (499 SE2d 157) (1998).

In order to harmonize the two statutes when the statutes have an apparent conflict, the court must determine the purpose of the acts and the intent of the legislature in trying to cure an evil and then try to construe the statutes to implement the intent. Kemp v. City of Claxton, 269 Ga. 173, 175 (1) (496 SE2d 712) (1998); Mullins v. First Gen. Ins. Co., 253 Ga. 486, 487 (322 SE2d 265) (1984); McGuire v. McGuire, 228 Ga. 782, 785 (187 SE2d 859) (1972). All statutes are to be construed in connection and in harmony with existing law and their meaning and effect is to be determined in connection with related law. Thornton v. Anderson, 207 Ga. 714, 718 (64 SE2d 186) (1951).

Although the literal language of the Act may be plain and unequivocal, it is the duty of the courts, in determining the legislative intent, to refrain from ascribing to the legislature a wholly unreasonable intention or an intention to do a futile and useless thing. Bd. of Trustees of the Policemen’s Pension Fund v. Christy, supra; Gen. Elec. Credit Corp. v. Brooks, supra; City of Jesup v. Bennett, supra. Where the letter of the statute results in absurdity or injustice or leads to contradictions, the meaning of the general language may be restrained by the spirit or reason of the statute in order to give effect to the legislative intent. Sirmans v. Sirmans, 222 Ga. 202, 204 (149 SE2d 101) (1966); see also Kemp v. City of Claxton, supra at 175-176; New Amsterdam Cas. Co. v. Freeland, 216 Ga. 491, 495 (117 SE2d 538) (1960). Where the law is susceptible of more than one construction, the Act must be given that construction which is most equitable and just. Ford Motor Co. v. Abercrombie, 207 Ga. 464, 468 (62 SE2d 209) (1950); Jenkins v. State, 93 Ga. App. 360, 366 (92 SE2d 43) (1956).

Thus, here, where the spirit of the law and intent of the law can be carried out so that the legislative purpose is fully satisfied without harm to the statutory scheme, such construction prevails over the literal reading of the language of the Act. Kemp v. City of Claxton, supra at 175-176. It was proper to construe the Act so that Ms. Edwards was in compliance with the requirements establishing dissenters’ rights, even though she did not tender her stock certificate within the dissenters’ rights time period.

(b) OCGA § 14-2-1323 (c) was a right created to protect the appellants with regard to the dissenter. Just as the statute provides that the dissenter may waive his or her right to dissent by failure to comply with OCGA § 14-2-1323 (c), OCGA § 14-2-1330 provides that the corporation may waive its right to contest the dissenter’s evaluation by not timely filing suit. See Riddle-Bradley, Inc. v. Riddle, 217 Ga. App. 725 (459 SE2d 576) (1995). Any suit by the corporation is a proceeding in equity. See OCGA § 14-2-1330 (b). Appellants, by continuing to deal with Ms. Edwards as if she had timely filed her dissent with delivery of stock certificates and by causing her delay in obtaining possession of her stock certificate waived their right to assert a default. See Aaron Rents v. Corr, 133 Ga. App. 296, 302-304 (211 SE2d 156) (1974). While Aaron Rents v. Corr, supra, was decided under a dissimilar former corporate code section dealing with dissenters’ rights and wherein the corporation admitted the intentional waiver, the case controls as to waiver of the timeliness of the dissenters’ notice, because the case stands for the proposition that such defense to dissenters’ rights can be waived. However, a factual issue normally arises as to whether a waiver in fact occurred. But appellants submitted no evidence to raise a material issue of fact of lack of intent to waive and rested on its pleadings and motion instead. Ms. Edwards submitted evidence to make out a prima facie case of waiver, and appellants failed to come forward to meet the shifted burden of persuasion. Therefore, the trial court properly granted Ms. Edwards’ motion for summary judgment based upon the evidence in the record and denied appellants’ motion. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2. Appellants contend that the trial court erred in awarding attorney fees and expert witness fees to Ms. Edwards. We agree.

The award of attorney fees is not generally allowed as part of the damages under the common law. In Georgia, attorney fees are recoverable only where authorized by some statutory provision or by contract. Thus, costs or expenses do not include attorney fees. Bowers v. Fulton County, 227 Ga. 814, 815-816 (183 SE2d 347) (1971); Money v. Thompson & Green Machinery, 155 Ga. App. 566, 567 (271 SE2d 699) (1980); Solomon Refrigeration v. Osburn, 148 Ga. App. 772, 773 (2) (252 SE2d 686) (1979). Since any such statute is in derogation of common law, then it must be strictly construed against the award of such damages. Browning v. Gaster Lumber Co., 267 Ga. 72, 73 (475 SE2d 576) (1996); Mobley v. Commonwealth Mtg. Assur. Co., 264 Ga. 652, 654 (450 SE2d 205) (1994); Warren v. Walton, 231 Ga. 495, 499-500 (202 SE2d 405) (1973).

The trial court awarded the attorney fees and expert witness fees under the authority of OCGA § 14-2-1331, which reads in pertinent part:

[t]he court in an appraisal proceeding commenced under Code Section 14-2-1330 shall determine all costs of the proceeding, including the reasonable compensation and expenses of appraisers appointed by the court, but not including fees and expenses of attorneys and experts for the respective parties.

The official comment to the Act states: “[attorneys’ fees and the costs of experts employed by the parties have been excluded from these assessments. This preserves the approach of former law, § 14-2-251 (g) (7).” OCGA § 14-2-1331, comment p. 378. The plain language of the statute expressly excludes attorney fees. However, this action was not brought as a judicial appraisal proceeding under OCGA § 14-2-1330. Ms. Edwards, throughout the trial and appeal, has maintained that “[i]f the corporation does not commence the proceeding within the 60 day period, it shall pay each dissenter whose demand remains unsettled the amount demanded.” OCGA § 14-2-1330 (a). This Court has held that, where the corporation does not commence the appraisal proceeding within the 60-day window of opportunity, the trial court lacks subject matter jurisdiction to hear such issues. Riddle-Bradley, Inc. v. Riddle, supra at 726 (1). Therefore, the condition precedent to the award of costs of litigation under OCGA § 14-2-1331 (a) or (b) of a judicial appraisal proceeding has not been met, and the trial court lacked authority to make such award of damages under either OCGA § 14-2-1331 (a) or (b). OCGA § 14-2-1331 (b) does not apply in this case, because there was no evidence that there had not been substantial compliance by the corporation with OCGA §§ 14-2-1320 through 14-2-1327. While appellants did not comply strictly with OCGA § 14-2-1325 (a) by making an offer within ten days or producing the financial information required by OCGA § 14-2-1325 (b), on October 4, 1996, the offer was made, accompanied by the required financial information, which was substantial compliance. Since the action before the trial court was not brought under OCGA § 14-2-1330, then OCGA § 14-2-1331 was not applicable, because the trial court lacked subject matter jurisdiction under such statutory scheme. Riddle-Bradley, Inc. v. Riddle, supra at 726 (1). The trial court erred in awarding attorney fees, attorney expenses, and expert witness fees and expenses. Therefore, the judgment as to such awards is vacated and upon remand the trial court shall enter a judgment which is consistent with this opinion.

Decided June 1, 1999.

Smith, Gamhrell & Russell, Edward H. Wasmuth, Jr., Jason S. Bell, for appellants.

William G. Leonard, for appellee.

Judgment affirmed in part, reversed in part and case remanded.

Pope, P. J., and Smith, J., concur.

       In attempting to ascertain the legislative intent of the Act, the court may look to the caption of the act and its legislative history to determine the true purpose of the act. Sikes v. State, 268 Ga. 19, 21 (2) (485 SE2d 206) (1997); Ga. Mental Health Institute v. Brady, 263 Ga. 591, 592 (2) (a) (436 SE2d 219) (1993).


author: Judge Harold R. Banke.

text:
    A99A0925.
    UNITED PARCEL SERVICE v. MOORE.
    (519 SE2d 15)
   Judge Harold R. Banke.

Jerusha Moore sued United Parcel Service for intentional infliction of emotional distress. In this interlocutory appeal of the order denying summary judgment to UPS, the question is whether UPS’ conduct in stopping payment on a check was sufficiently outrageous and extreme to be tortious.

Construed in favor of Moore, the evidence showed that her parents contracted with Lone Star Sports to ship a computer to Moore via UPS. When the computer was damaged during shipment, UPS told Moore it would cover the loss and sent her a check, which she deposited. Without informing Moore, UPS then stopped payment on the check to recoup monies owed by Lone Star Sports to UPS. Three checks written by Moore bounced, and Moore’s bank threatened her with criminal prosecution for writing bad checks. Moore became emotionally distraught as a result. Two months later UPS forwarded another check in the same amount to Moore, which she cashed. Held:

To survive summary judgment on a claim for intentional infliction of emotional distress, a plaintiff must show all four of the following elements:

(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; and (4) The emotional distress must be severe.

(Citation and punctuation omitted.) Odem v. Pace Academy, 235 Ga. App. 648, 654 (2) (510 SE2d 326) (1998); see Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (1) (335 SE2d 445) (1985).

The rule of thumb in determining whether the conduct complained of was sufficiently extreme and outrageous is whether the recitation of the facts to an average member of the community would arouse her resentment against the defendant so that she would exclaim “Outrageous!” Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991). It must be so serious “as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress.” (Emphasis in original.) Peoples v. Guthrie, 199 Ga. App. 119, 121 (2) (404 SE2d 442) (1991). It does not include mere insults, indignities, threats, annoyances, petty oppressions, or other vicissitudes of daily living, but must go beyond all reasonable bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community. Discovery Point Franchising v. Miller, 234 Ga. App. 68, 73 (4) (505 SE2d 822) (1998); Moses v. Prudential Ins. Co. of America, 187 Ga. App. 222, 225 (369 SE2d 541) (1988). Whether reasonable persons could find the conduct reaches this level is a question of law for the court. Yarbray, supra, 261 Ga. at 706 (2).

Stopping payment on a check, especially to recoup monies owed, does not constitute extreme and outrageous conduct. The law fully accords the drawer of an uncertified check the right to order her bank to stop payment, if done before certain events specified in OCGA § 11-4-303 (a). See OCGA § 11-4-403 (a); Ga. R. Bank &c. Co. v. First Nat. Bank &c. Co., 139 Ga. App. 683, 685 (229 SE2d 482) (1976), aff'd, 238 Ga. 693 (235 SE2d 1) (1977). Persons depositing uncertified checks take the risk of non-payment by the drawee bank, which may leave them with remedies against the drawer or others. See Stewart v. C & S Nat. Bank, 138 Ga. App. 209 (225 SE2d 761) (1976). But intentional infliction of emotional distress is not one of those remedies. Sharp or sloppy business practices, even if in breach of contract, are not generally considered as going beyond all reasonable bounds of decency as to be utterly intolerable in a civilized community. Discovery Point Franchising, supra, 234 Ga. App. at 72-73 (3), (4); see Fulton v. Anchor Savings Bank, 215 Ga. App. 456, 469 (7) (452 SE2d 208) (1994) (wrongful repossession that was not abusive was not sufficiently outrageous, especially when auto was returned after mistake discovered); Evans v. Willis, 212 Ga. App. 335, 337 (1) (a) (441 SE2d 770) (1994) (losing wedding dress was not sufficiently outrageous).

Decided June 1, 1999.

Long, Aldridge & Norman, Henry F. Sewell, Jr., David N. Stern, for appellant.

Mills & Chasteen, Ben B. Mills, Jr., for appellee.

Moore’s pre-existing medical condition (hydrocephalus) plays no role in this determination, as no evidence showed UPS was aware of her malady. See Bridges, supra, 176 Ga. App. at 230 (1) (no liability where plaintiff suffers exaggerated emotional distress unless resulting from peculiar susceptibility of which defendant has knowledge).

Because UPS’ conduct was not extreme or outrageous, the court erred in denying summary judgment on Moore’s claim of intentional infliction of emotional distress.

Judgment reversed.

Blackburn, P. J, and Barnes, J., concur.


author: Blackburn, Presiding Judge.

text:
    A99A1076.
    SMITH v. THE STATE.
    (519 SE2d 19)
   Blackburn, Presiding Judge.

Paul Julian Smith appeals his conviction of possession of cocaine, following a jury trial, contending that there was insufficient evidence to support the verdict. We find that there was sufficient evidence, and we affirm.

Decided June 1, 1999.

Ellis R. Garnett, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Smith] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. . . . The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

(Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

The evidence in this case shows that Smith, a trusty at the Richmond County Jail, was wheeling a food cart through the jail. Smith was observed by a corrections officer exchanging an item for money with another inmate. A search revealed the inmate had received a $20 bill from Smith. Smith had hidden in his sock a small package containing crack cocaine. At trial, expert testimony established that the likely value of the crack was approximately $20. This evidence was sufficient to authorize the finding of guilt beyond a reasonable doubt. See Jackson, supra.

Judgment affirmed.

Barnes, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A99A0199.
    JOHNSON v. EQUICREDIT CORPORATION.
    (517 SE2d 353)
   Johnson, Chief Judge.

Harold Johnson and his mother were among the defendants named in an action brought in Brevard County, Florida, to foreclose a mortgage on property located in that county. In its order, the Florida court specifically found that the Johnsons, who were Georgia residents, were legally served with and answered the complaint, and that the court had jurisdiction over the parties and the subject matter. The Florida court entered summary judgment against the John-sons. Johnson, on behalf of himself and his mother’s estate, filed numerous motions for relief from the judgment in the Florida court. The motions were denied, and the judgment of foreclosure was affirmed on appeal.

Johnson then filed a lawsuit in Duval County, Florida, against Equicredit Corporation, a subsequent purchaser of the property, alleging the judgment of foreclosure was void for lack of jurisdiction. The trial court granted summary judgment to Equicredit based on the principle of res judicata, noting that Johnson had raised the “void for lack of jurisdiction” argument previously and that the issue had already been decided. The court also noted that even if, as Johnson claimed, his jurisdiction argument was different now, he had the opportunity to make the argument before and failed to do so; therefore, the action was nonetheless barred based on the principle of res judicata. These decisions were appealed to Florida appeals courts, and the decisions were affirmed.

After his efforts in Florida were unsuccessful, Johnson filed the underlying complaint against Equicredit in the Superior Court of Glynn County, Georgia, asking the court to deny full faith and credit to the Florida judgment of foreclosure and to find the judgment void for lack of jurisdiction. Equicredit moved to dismiss the complaint on several grounds, including res judicata. The trial court dismissed the action. We affirm the trial court’s order.

1. In two enumerations, Johnson contends the trial court erred by not including citations to legal authority in its order of dismissal or its order denying his motion for new trial. These enumerations present no grounds for reversal.

Johnson cites no authority supporting his position that a trial court must include in its orders citations to legal authority. We do not agree that the trial court’s failure to do such is improper. The trial judge is presumed to know the law and presumed to faithfully and lawfully perform his or her duties. In the Interest of A. L. L., 211 Ga. App. 767, 770 (5) (440 SE2d 517) (1994). We will not presume the trial court committed error where that fact does not affirmatively appear in the record. Id.

More importantly, the trial court did not err in dismissing Johnson’s complaint or in denying his motion for new trial. The judgment of a foreign court must be given full faith and credit unless the court lacked jurisdiction over the subject matter or the person or unless the judgment was procured by fraud. Tandy Computer Leasing v. Bennett’s Svc. Co., 188 Ga. App. 594 (373 SE2d 647) (1988). However, where a party appeared and defended in the foreign court, the judgment of that court, regular on its face, may not be attacked in the courts of this state. Chrison v. H & H Interiors, 232 Ga. App. 45, 47 (1) (a) (500 SE2d 41) (1998). And when the issue of jurisdiction was raised in the foreign court and decided against a party, the party cannot collaterally attack the foreign court’s determination. Id. The doctrine of res judicata makes a prior judgment conclusive between the parties and their privies as to all matters put in issue or that might have been put in issue. Id.

Johnson appeared in the Florida court and thus had the opportunity to litigate the issue of lack of jurisdiction. In fact, the issue was litigated and decided against him. He is therefore precluded from collaterally attacking the Florida judgment based on lack of jurisdiction. See Willis v. Nat. Mtg. Co., 235 Ga. App. 544, 545-546 (1) (509 SE2d 403) (1998) (physical precedent only); Packer Plastics v. Johnson, 205 Ga. App. 797 (423 SE2d 690) (1992); Hall v. Cel Oil Products Corp., 175 Ga. App. 813 (1) (334 SE2d 724) (1985); Van Buskirk v. Great American Bank &c., 175 Ga. App. 101, 102 (332 SE2d 394) (1985). Although the trial court stated' a different basis for dismissing the complaint, a judgment right for any reason must be affirmed. See Bailey v. Hall, 199 Ga. App. 602, 606 (2) (405 SE2d 579) (1991). We note that, contrary to Johnson’s claim, the trial court did not err in dismissing the action because Equicredit failed to include citations to legal authority in its motion to dismiss. No motion from Equicredit was even necessary, since the trial court has inherent authority to dismiss a complaint on its own motion in an appropriate case. See Smith v. Adamson, 226 Ga. App. 698, 699 (2) (487 SE2d 386) (1997). The trial court did not err in dismissing Johnson’s complaint.

Nor did the trial court err in denying Johnson’s motion for new trial, inasmuch as a motion for new trial was not the proper procedural vehicle for challenging the judgment. See generally Gooding v. Boatright, 211 Ga. App. 221, 222 (438 SE2d 685) (1993). In light of that, coupled with our determination that Johnson was not entitled to judgment, the court’s failure to hold a hearing on the motion was harmless. See Drohan v. Carriage Carpet Mills, 175 Ga. App. 717, 718 (3) (334 SE2d 219) (1985).

2. Any error by the trial court in striking Johnson’s motion for summary judgment as premature was harmless because, for the reasons discussed above, Johnson was not entitled to have judgment entered in his favor. See generally Fuhrman v. EDS Nanston, Inc., 225 Ga. App. 190, 191 (4) (483 SE2d 648) (1997).

Decided May 4, 1999

Reconsideration denied June 2, 1999 — Cert. applied for.

Harold A. Johnson, pro se.

Holland & Knight, Frank Lonegro, Keith J. Reisman, for appellee.

3. Johnson argues the trial court failed to consider case law he submitted in support of his action. Although the trial court did not -state in its order the authority upon which it relied in making its decision, the judge is presumed to know the law and presumed to faithfully and lawfully perform her duties. See Stolle v. State Farm &c. Ins. Co., 206 Ga. App. 235-236 (1) (424 SE2d 807) (1992). We will not presume that the trial court ignored applicable law.

4. In two enumerations, Johnson contends the trial court erred by “ignoring] its duty under the equity statutes” and in not entering an equitable decree holding the Florida judgment void. The doctrine of res judicata bars claims seeking equitable relief. See McGraw v. Smith, 232 Ga. App. 513, 514 (1) (502 SE2d 347) (1998); Ga. Farm Buildings v. Willard, 165 Ga. App. 325, 326-327 (1) (299 SE2d 181) (1983).

Judgment affirmed.

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


author: Barnes, Judge.

text:
    A97A0150.
    LOMBARD CORPORATION v. COLLINS.
    (519 SE2d 237)
    Decided June 2, 1999.

      Marvin P. Nodvin, for appellant.

      Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy

      Attorney General, Harold D. Melton, Senior Assistant Attorney General, Stefan E. Ritter, Assistant Attorney General, Jonathan A. Weintraub, Joan F. Roach, Kathleen A. Wasch, for appellee.
   Barnes, Judge.

In Collins v. Lombard Corp., 270 Ga. 120 (508 SE2d 653) (1998), the Supreme Court reversed our decision in Lombard Corp. v. Collins, 229 Ga. App. 654 (494 SE2d 538) (1997), in which we reversed the judgment of the trial court dismissing the case. Accordingly, our opinion is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the judgment of the trial court is affirmed.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


text:
    A99A0037.
    CORSINI v. THE STATE.
    (519 SE2d 39)
   Ruffin, Judge.

Following a bench trial, Virginia Corsini was convicted of telephone harassment. She appeals, contending (1) that there was insufficient evidence to support her conviction; (2) that the trial court impermissibly convicted her because she did not testify at trial; (3) that the trial court erroneously limited her cross-examination of a witness; and (4) that the accusation was fatally defective. Because each of these contentions is without merit, we affirm.

1. In a bench trial, the trial court sits as the trier of fact. As such, it determines the credibility of the witnesses and may accept or reject any part of a witness’s testimony, even in the absence of contradictory testimony. Bettis v. State, 228 Ga. App. 120, 121 (491 SE2d 155) (1997). On appeal, we view the evidence in the light most favorable to the trial court’s judgment and will not set aside the trial court’s factual findings unless they are clearly erroneous. A trial court’s factual findings are not clearly erroneous if there is any evidence to support them. This is true even where such findings are based upon circumstantial evidence and the reasonable inferences which flow therefrom. Id.

Viewed in this light, the evidence at trial showed the following. On May 18, 1997, Clarissa Sullivan was at Judy Alexander’s house when the telephone rang. Sullivan answered the telephone because Alexander was in the shower. An older-sounding voice on the other end of the phone asked to speak to Alexander. Sullivan asked the caller if she was Alexander’s mother, and the caller said she was. When Sullivan said, “I’ve heard wonderful things about you,” the caller laughed and asked to speak with Alexander. Sullivan then handed the phone to Alexander. Alexander testified that the voice on the other end of the phone was not in fact her mother’s, but was Corsini’s. Alexander recognized Corsini’s voice because they had lived together for 15 years. They had been lovers, but had broken up four months earlier and were not on speaking terms. Alexander dropped the phone without saying a word. Sullivan testified that she picked up the phone and said, “Jennie?” (which was the name Corsini went by), and that the caller said “yes.” Sullivan then asked, “Why do you continue playing these games?” Sullivan testified that the caller then said, “I will blow you up in the house along with Judy.” Sullivan had never met Corsini and did not recognize the caller’s voice. However, she testified that the voice that made the threat was the same voice she had heard when she first answered the phone.

Corsini contends that because the threat was made to Sullivan, who did not recognize the caller’s voice, there is no evidence that Corsini was the one who made the threat. However, Alexander positively testified that she recognized Corsini’s voice immediately before she dropped the phone, at which point Sullivan picked up the phone and heard the threat. Moreover, Sullivan testified that the caller responded affirmatively when Sullivan asked if it were Jennie. Clearly, there was sufficient evidence to support the trial court’s conclusion that it was Corsini who made the call and the threat. See Hall v. State, 226 Ga. App. 380, 381-382 (487 SE2d 41) (1997) (affirming conviction based primarily upon victim’s recognition of defendant’s voice over telephone); Brown v. State, 266 Ga. 723, 725 (3) (470 SE2d 652) (1996) (defendant’s identification of himself over telephone, combined with other evidence, sufficient to establish identity). Compare Constantino v. State, 243 Ga. 595, 599 (3) (255 SE2d 710) (1979) (identification not sufficient if identity is established only by what is said in the conversation itself).

2. Corsini contends that the trial judge improperly convicted her based on her failure to testify. In finding Corsini guilty, the judge stated that

[e]ven though the testimony on behalf of the State is what I felt was weak, there is no evidence to the contrary that Ms. Corsini — if she had testified and denied making the phone call, I think I would have a doubt. But her failure to testify in her own behalf, and I know I’m not supposed to use that against her, leaves me with nothing but the testimony that a telephone call was made, Ms. Alexander identified the caller as Ms. Corsini, . . . and that statements were made of a threatening nature threatening bodily harm by the caller.

Corsini’s counsel moved for a mistrial, stating that “it appears that the Court is making its ruling largely on the fact that my client didn’t testify.” The judge denied the motion, stating that “I did not have a reasonable doubt and that’s why I found [Corsini] guilty.”

Although the trial judge did comment on Corsini’s failure to testify, he did so in the context of explaining that there was no evidence contradicting the State’s evidence that Corsini was the caller. The judge’s comment indicates that he convicted Corsini not because of her refusal to testify, but because the State’s evidence was essentially uncontradicted. See generally Stewart v. State, 165 Ga. App. 62, 64 (5) (299 SE2d 134) (1983) (not error to reflect upon failure of defense to present any evidence to rebut State’s evidence); Kerr v. State, 193 Ga. App. 165, 166 (1) (387 SE2d 355) (1989) (prosecutor’s comment on defendant’s failure to testify was “directed at the lack of evidence adduced by appellants in contrast to that presented by the State”).

Since this was a bench trial, there was no jury that could have been influenced by the judge’s comments. “[I]n a bench trial it is presumed that the judge, as the trier of fact, is able to distinguish between competent and incompetent evidence and consider only that evidence which is admissible.” Hopkins v. State, 209 Ga. App. 337, 339 (433 SE2d 423) (1993). Indeed, the judge expressly stated that he was aware that a defendant’s silence is not to be used against her, and that he had no reasonable doubt about Corsini’s guilt. Because it does not appear that the trial judge improperly considered Corsini’s failure to testify, this enumeration is without merit. See Moreland v. State, 154 Ga. App. 375, 376-377 (2) (268 SE2d 425) (1980) (trial judge’s comments during sentencing phase did not demonstrate that judge applied improper standard).

3. In her third enumeration of error, Corsini contends that the trial court improperly limited her cross-examination of Alexander. Although her brief fails to provide any record citations relating to this enumeration, it is apparent that Corsini is referring to an exchange that began when her attorney asked Alexander whether Corsini had instituted proceedings against her “seeking relief from — for violence?” After Alexander’s attorney objected on relevancy grounds, Corsini’s attorney stated that “it goes to the credibility of the witness in this matter and I’m entitled to a thorough and sifting cross examination.” The judge stated, “Well, you know, if the fact that she’s been charged with something I don’t think is admissible to the credibility,” and asked whether Corsini had a copy of any convictions against Alexander. Corsini’s attorney replied that she had a certified copy of a nolo plea for violation of a protective order. The judge stated that he thought the nolo plea would be admissible “if it’s a crime involving moral turpitude or a felony,” and then stated that

[i]f it’s for purposes of impeachment, I’m not going to hear it unless it’s a conviction of a felony or a crime involving moral turpitude. Now, it may be a crime involving moral turpitude, I don’t know. I don’t even know what the crime is; I don’t know what the conviction is.

Corsini’s attorney responded, ‘Your Honor, I’ll move on,” and made no further attempt during Alexander’s cross-examination to raise the issue of the restraining order or the nolo plea.

On appeal, Corsini appears to concede that the nolo plea itself was inadmissible. However, she argues that the trial court erred in refusing to allow her to present evidence of the facts underlying the plea — i.e., the facts surrounding Corsini’s obtaining a restraining order and Alexander’s alleged violation of the order. She contends that these facts were relevant because they supported her theory that Alexander fabricated the harassment charges in retaliation against Corsini. As an initial matter, we note that in response to Alexander’s relevance objection, Corsini’s counsel did not argue that the evidence was being offered to show a motive for retaliation, but simply stated that the evidence went to Alexander’s credibility. “[W]e will not consider whether the trial court erred in refusing to admit . . . evidence for a purpose raised for the first time on appeal, when the appellant affirmatively stated a different purpose at trial.” (Punctuation omitted.) Dukes v. State, 224 Ga. App. 305, 307 (2) (480 SE2d 340) (1997). We do not believe that a general statement that evidence “goes to the credibility” of a witness is sufficient to apprise the trial court that the evidence is actually being offered for the specific purpose of showing a motive for retaliation. Indeed, it seems clear that the trial court was under the impression that Corsini was offering the nolo plea simply to attack Alexander’s general credibility. See Henderson v. State, 146 Ga. App. 114, 116 (3) (245 SE2d 437) (1978) (“Generally a witness is subject to impeachment by proof of a conviction of a felony or a crime involving moral turpitude”). Because Corsini did not indicate below that she was offering the evidence in question for the purpose asserted on appeal, we cannot consider whether the evidence was in fact admissible for such purpose. Dukes, supra.

Moreover, contrary to Corsini’s assertions, the trial court did not in fact rule that she could not present evidence of the parties’ past conduct to support a theory of retaliation. Indeed, the trial court never issued a final ruling at all, but simply indicated that it would not allow admission of the nolo plea itself for impeachment purposes unless it involved a conviction of a felony or a crime involving moral turpitude. See Henderson, supra; Durant v. State, 222 Ga. App. 872, 875 (3) (476 SE2d 641) (1996). At this point, Corsini’s attorney stated that she would “move on,” and did not attempt to present evidence relating to the restraining order during Alexander’s cross-examination. Because the trial court did not rule that Corsini was prohibited from introducing evidence of the parties’ prior dealings, Corsini cannot complain on appeal that she was prohibited from introducing such evidence. See O’Neal v. Oxendine, 237 Ga. App. 171, 176 (514 SE2d 908) (1999).

Decided June 2, 1999 — Cert. applied for.

Wolfe & Steel, Larry D. Wolfe, Kristine E. Waddy, for appellant.

Jerry Rylee, Solicitor, Larry A. Baldwin II, Assistant Solicitor, for appellee.

4. Finally, Corsini contends that the trial court erred in denying her demurrer to the accusation because the accusation referenced the wrong statute. The accusation accused Corsini of telephone harassment in that she “telephoned] CLARISSA G. SULLIVAN for the purpose of using language to threaten bodily harm.” However, the accusation mistakenly cited OCGA § 16-11-39, dealing with disorderly conduct, instead of OCGA § 16-11-39.1, dealing with harassing telephone calls.

Corsini contends that the accusation was fatally defective because it cited the wrong statute. However, we have held that “an indictment or accusation is not defective if, while describing the proper elements of the crime, the incorrect statute is referenced.” Broski v. State, 196 Ga. App. 116, 117 (1) (395 SE2d 317) (1990). The accusation properly described the elements of the crime charged. See OCGA § 16-11-39.1 (making it a misdemeanor where one “uses over the telephone language threatening bodily harm”). Therefore, the accusation was not defective.

Judgment affirmed.

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

       In her reply brief, Corsini attempts to expand the scope of this enumeration by arguing that the trial court erred in refusing to allow her to present testimony from one of her own witnesses. “These additional arguments being beyond the scope of the enumeration of error may not be considered by this Court.” In re Harvey, 219 Ga. App. 76, 79 (464 SE2d 34) (1995).


text:
    A99A0045.
    BRANNEN/GODDARD COMPANY et al. v. PNC REALTY HOLDING CORPORATION OF GEORGIA.
    (519 SE2d 35)
   Andrews, Judge.

Brannen/Goddard Company (B/G) and King Industrial Realty, Inc. (King), real estate brokers, sued PNC Realty Holding Corporation of Georgia (PNC) and Nolan Road West, Ltd. (Nolan) alleging that either PNC or Nolan owes them real estate commissions for procuring a tenant which leased commercial property owned first by Nolan then transferred by Nolan to PNC. After the property was leased, Nolan entered into a commission agreement with B/G and King, but claimed that PNC assumed the obligation to pay commissions due under the agreement when the property was transferred to PNC and the lease was assigned to PNC pursuant to a lease assignment agreement. PNC moved for summary judgment claiming that nothing in the lease assignment showed that it agreed to assume Nolan’s obligation to pay commissions to B/G and King. The trial court granted summary judgment to PNC, and B/G and King appeal.

The 1987 commission agreement recognized that B/G and King procured a tenant which leased commercial property owned by Nolan and provided that, as compensation for this service, Nolan would pay commissions to B/G and King during the term of the lease, during any extension or renewal of the lease, or during any new lease of the property to the same tenant. In January 1992, Nolan and the tenant entered into a new lease of the property. The new lease provided in part that “[Nolan] hereby agrees to pay any broker’s commissions due to [B/G] and [King].”

After defaulting on loan obligations to PNC Bank Corporation, Nolan transferred the leased property to PNC in September 1992 to settle those obligations. As part of the settlement, Nolan and PNC entered into a lease assignment agreement in September 1992 which provided in part that:

[Nolan assigns to PNC] all of its right, title and interest in and to . . . (i) all leases, subleases, licenses, rental contracts and other agreements (collectively the “Leases”) relating to the occupancy now existing or hereafter entered into and affecting [the leased property]; and (ii) all rents, issues, profits, income and proceeds to become due from tenants of the Property from and after the Effective Date ....
[PNC], by its acceptance hereof, does hereby assume and agree to perform the obligations and liabilities of [Nolan] as of the aforesaid Effective Date; provided, however, that [PNC] does not assume and perform any obligation or liability under any of the Leases relating to or rising out of events or occurrences on or before such date.

The settlement agreement between Nolan and PNC provided that the effective date referred to in the lease assignment was a date no later than September 14, 1992.

In moving for summary judgment, PNC contended that the 1987 commission agreement between Nolan and B/G and King created an obligation on the part of Nolan to pay the commissions, and that PNC was not a party to that agreement nor did it assume Nolan’s obligation under the agreement when the lease was assigned to PNC in the September 1992 lease assignment agreement. In responding to the motion for summary judgment, B/G and King contended that a question of fact was presented as to whether, under the lease assignment, PNC assumed Nolan’s obligation to pay commissions.

The 1987 commission agreement provided that Nolan agreed to pay commissions to B/G and King under the existing lease or any new lease of the property to the same tenant as compensation for procuring the tenant to lease the property. This was not a covenant binding on PNC because it ran with the leased property when PNC acquired title and took an assignment of the lease; rather, it was a personal covenant binding only on Nolan and any party assuming Nolan’s obligation. Utilities & Indus. Corp. v. Carter & Assoc., 160 Ga. App. 361, 363 (287 SE2d 77) (1981); James Talcott, Inc. v. Roy D. Warren Commercial, 120 Ga. App. 544, 545-546 (171 SE2d 907) (1969). Accordingly, unless the lease assignment agreement can be construed as providing that PNC assumed Nolan’s obligation under the 1987 commission agreement, then PNC is not bound by the commission agreement.

There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the trier of fact must then resolve the ambiguity.

(Citations and punctuation omitted.) Empire Distrib. v. George L. Smith II World Congress Center Auth., 235 Ga. App. 742, 744 (509 SE2d 650) (1998).

Applying these steps, we find no ambiguity in the lease assignment agreement with respect to whether PNC assumed Nolan’s obligations under the 1987 commission agreement, and we conclude that nothing therein can be construed as providing that PNC assumed those obligations. The provision in the assignment agreement that Nolan assigned to PNC all of Nolan’s “right, title and interest in and to . . . all leases, subleases, licenses, rental contracts and other agreements (collectively the ‘Leases’)” makes no reference to obligations of any kind and cannot be reasonably construed to refer to an assumption of Nolan’s obligations under the separate 1987 commission agreement. The lease assignment agreement further provided that PNC assumed and agreed to perform Nolan’s obligations and liabilities under the lease as of an agreed upon effective date, and that PNC did not agree to assume and perform any obligation or liability under the lease relating to or rising out of events or occurrences on or before such date. Although the January 1992 lease, the subject of the assignment, provided that Nolan was obligated “to pay any broker’s commissions due to [B/G] and [King],” the lease itself does not establish that any such commissions are due, and there is no reference in the lease to Nolan’s obligations to pay commissions under the 1987 commission agreement. Accordingly, there is no basis to conclude under any provision of the lease assignment agreement that PNC assumed Nolan’s obligations under the commission agreement. We need not construe the language in the assignment agreement limiting its application to obligations on or before the agreed upon effective date.

Decided June 2, 1999.

Harman, Owen, Saunders & Sweeney, Perry A. Phillips, for appellants.

Parker, Hudson, Rainer & Dobbs, J. Marbury Rainer, Charles W. Lyons, for appellee.

Contrary to B/G and Kang’s contention, the trial court did not err in failing to consider deposition testimony explaining the intention of the parties. Because there was no ambiguity to be explained, extrinsic evidence was not admissible. Holcomb v. Word, 239 Ga. 847-848 (238 SE2d 915) (1977). The trial court correctly granted summary judgment in favor of PNC.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


text:
    A99A0119.
    THE STATE v. KWIATKOWSKI et al.
    (519 SE2d 43)
   Andrews, Judge.

Pursuant to OCGA § 5-7-1, the State appeals the trial court’s order suppressing evidence of 27 pounds of marijuana found in appellees’ car. For the following reasons, we affirm.

In reviewing a trial court’s order granting a motion to suppress, we construe the evidence most favorably to uphold the court’s ruling. Mao v. State, 222 Ga. App. 482, 483 (474 SE2d 679) (1996). It is the trial court’s duty to resolve conflicts in the evidence, and its findings of fact and credibility will not be disturbed on appeal unless they are clearly erroneous. Id.

At about 4:17 p.m. on August 15, 1997, Barrow County Deputy Sheriff McDaniel noticed a black Toyota 4-Runner parked in a Department of Transportation parking lot just off Highway 211. Although Deputy McDaniel saw nothing to make him think the car had broken down or that its passengers were in distress, he went to investigate. The deputy drove up beside the car and spoke with the driver, Tanya Leonard, and the passenger, Chris Kwiatkowski (the appellees). The deputy asked the appellees for identification and asked why they were parked in the DOT lot. The appellees, who were from Virginia, calmly explained that they were looking for Chateau Elan, that they missed their turn, and that they were lost. The deputy took the appellees’ Virginia driver’s licenses and parked his patrol car behind the appellees’ car. He noticed that the car had a North Carolina tag. A check of Kwiatkowski’s driver’s license revealed that it had been suspended.

About three to five minutes later, Deputy Holcomb arrived and parked his patrol car next to Deputy McDaniel’s car. Deputy McDaniel handed Deputy Holcomb the appellees’ driver’s licenses. Deputy Holcomb took the licenses and walked to the appellees’ car. He asked Kwiatkowski if he had any illegal drugs, money, alcohol, or guns in the car and also asked for consent to search the car. Kwiatkowski said “no” to both questions. Deputy Holcomb said Kwiatkowski seemed somewhat nervous because he “would look away when he answered [the deputy’s] questions.” Deputy Holcomb did not give the appellees their driver’s licenses or tell them that they were free to leave.

While Deputy Holcomb was questioning the appellees, a third deputy, Deputy Evans, arrived. Deputy Evans also asked the appellees for consent to search. For the second time, Kwiatkowski said “no.” At 4:37 p.m., Deputy McDaniel radioed for a canine unit. Deputy McDaniel still had the appellees’ licenses. There is no evidence that any of the deputies intended to or ever cited the appellees for any traffic offense. Nor did any deputy ever tell the appellees they were free to leave although, according to Deputy McDaniel, they were free to do so — “[a]ll they had to do was ask.” Deputy McDaniel explained that he called for the drug dog because the appellees were parked in a DOT parking lot in a “high drug area” in an “out-of-state vehicle. At that one point they had done got nervous. You know, if you’re not holding, you don’t say no [to a request to search]. You don’t care.”

After Deputy McDaniel called for the drug dog, Deputy Evans returned the appellees’ driver’s licenses to them. He testified: “I remember I told [Kwiatkowski] the dog would be here in a few minutes, and we would cure the little problem of our suspicion and they would be ready to go.” Fourteen minutes later, at 4:51 p.m., the canine unit arrived. The appellees were placed in the back of Deputy Holcomb’s patrol car with the doors open. The drug dog alerted on the tailgate of the car. Deputy Evans found a large bag containing about 27 pounds of marijuana in a bag in the back of the car.

Although Deputy McDaniel’s initial contact with the appellees can be characterized as a noncoercive, police-citizen inquiry, see O’Donnell v. State, 200 Ga. App. 829, 831 (1) (409 SE2d 579) (1991), the situation rapidly matured into an investigative detention, a seizure within the meaning of the Fourth Amendment for which reasonable articulable suspicion of criminal activity is required. In this case, the appellees were detained without reasonable articulable suspicion while the canine unit was called. As we have explained:

A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. In order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer’s requests or otherwise terminate the encounter.

(Punctuation omitted.) McClain v. State, 226 Ga. App. 714, 716 (1) (487 SE2d 471) (1997). A reasonable person would not have believed he was free to leave considering these circumstances: Three deputies and three patrol cars created an authoritative presence at the scene; the deputies kept the appellees’ driver’s licenses while they asked twice over a twenty-minute period whether any drugs were present in the car and whether they could search; the out-of-state appellees could not have left at that point without their driver’s licenses; the appellees made it clear that they were not amenable to a consent search yet the deputies did not, at any time, inform the appellees that they were free to leave; and, when Deputy Evans finally did return the appellees’ driver’s licenses to them, he made a statement from which the appellees could reasonably infer that they were required to wait until after the drug dog arrived and “cured the little problem” of the deputies’ suspicions. The appellees were “seized” within the meaning of the Fourth Amendment. See United States v. Mendenhall, 446 U. S. 544, 554 (100 SC 1870, 64 LE2d 497) (1980); Rogers v. State, 206 Ga. App. 654, 657-658 (1) (426 SE2d 209) (1992).

“An officer must have a reasonable and articulable suspicion that a person is involved in criminal activity to justify seizing that person for a brief period of time without probable cause to make an arrest.” State v. Stansbury, 234 Ga. App. 281, 282 (505 SE2d 564) (1998). See also Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). The suspicion must be one that provides a “basis from which the court can determine that the detention was not arbitrary or harassing.” McFadden v. State, 218 Ga. App. 327 (1) (461 SE2d 542) (1995).

Given the facts of this case, we cannot agree with the State that the officers possessed a reasonable and founded suspicion for detaining the appellees while awaiting the drug dog. Stopping in a parking lot while lost, being from out-of-state, being in a car with a tag from another state — these are not factors which alone are sufficient to suggest criminal activity. Rather, they are frequent occurrences in our highly mobile society. Also, that appellees were parked in a high drug area does not alone constitute a justification for a brief detention. Barnes v. State, 228 Ga. App. 44, 46 (491 SE2d 116) (1997); Rogers v. State, supra at 659. Further, nervousness does not provide reasonable suspicion of criminal behavior as a matter of law. Parker v. State, 233 Ga. App. 616, 618 (1) (504 SE2d 774) (1998). Finally, Kwiatkowski’s refusal to consent to a search of the car cannot constitute reasonable suspicion. See Smith v. State, 216 Ga. App. 453, 454-455 (2) (454 SE2d 635) (1995). The appellees were detained solely on Deputy McDaniel’s hunch that drugs were in the car.

Decided June 2, 1999.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellant.

Hicks & Massey, William E. Hicks, for appellees.

Because the deputies lacked reasonable articulable suspicion for detaining the appellees while the drug dog was called, the trial court properly granted the motion to suppress the marijuana evidence discovered as a result of the drug dog’s alert.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.