author: Ruffin, Judge.

text:
    A98A2011.
    CAGLE et al. v. STATE FARM FIRE & CASUALTY COMPANY.
    (512 SE2d 717)
   Ruffin, Judge.

Brad and Marty Cagle sued State Farm Fire & Casualty Company to recover for a loss pursuant to an insurance policy. They also asserted a claim under OCGA § 33-4-6 for bad faith refusal to pay the loss. After State Farm paid the policy limits, the trial court granted summary judgment to State Farm on the bad faith claim, and plaintiffs appeal this ruling. Because plaintiffs failed to make a timely demand for payment as required by OCGA § 33-4-6, 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). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view 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).

Plaintiffs suffered a loss under the insurance policy when a mini-warehouse in which they had stored certain items of personal property was destroyed by fire on December 21, 1994. Plaintiffs notified State Farm of the fire on December 22, 1994, and State Farm sent plaintiffs personal property inventory forms for plaintiffs to list the damaged items. Plaintiffs were obligated under the policy to complete such forms as part of their proof of loss. Although State Farm contacted plaintiffs numerous times over the next several months requesting the inventory forms, plaintiffs did not submit such forms to State Farm until October 26, 1995, more than 11 months after the loss. Between October 26, 1995 and November 13, 1995, plaintiffs submitted 52 pages of inventory forms listing personal property worth approximately $140,000, well in excess of the policy limits of approximately $65,000. Under the insurance policy, a loss was not payable until 60 days after State Farm received the insured’s proof of loss, including the inventory forms.

On December 20, 1995, plaintiffs filed this lawsuit against State Farm, seeking recovery under the policy and bad faith penalties under OCGA § 33-4-6. On the same day, plaintiffs’ attorney sent State Farm a letter demanding payment of the policy limits and stating that they would seek bad faith penalties and attorney fees under OCGA § 33-4-6 if payment was not made within 60 days.

“An insurance company is liable for penalties under OCGA § 33-4-6 when it fails to pay a covered loss within 60 days after a demand for payment has been made and there has been a finding that the refusal to pay was in bad faith. The purpose of the section is to penalize insurers that delay payments without good cause. As the section imposes a penalty, it is strictly construed; consequently, a proper demand for payment is essential to recovery. In this sense, a demand for payment must be made when immediate payment is in order.” (Citations omitted.) Howell v. Southern Heritage Ins. Co., 214 Ga. App. 536-537 (1) (448 SE2d 275) (1994). It is well settled that, in order to assert a claim under OCGA § 33-4-6, the demand for payment be made at least 60 days before suit is filed. See Guarantee Reserve Life Ins. Co. v. Norris, 219 Ga. 573, 575 (134 SE2d 774) (1964). “[A] failure to wait at least 60 days between making demand and filing suit constitutes an absolute bar to recovery of a bad-faith penalty and attorney fees under this statute.” Blue Cross & Blue Shield v. Merrell, 170 Ga. App. 86, 87 (316 SE2d 548) (1984). In this case, plaintiffs did not make a demand for payment at least 60 days before filing suit. Indeed, they sent their demand for payment to State Farm on the very day they filed suit. Accordingly, State Farm was entitled to summary judgment on plaintiffs’ claims under OCGA § 33-4-6. See Howell, supra; Norris, supra.

Decided March 2, 1999

Akin & Tate, William M. Akin, Samuel L. Tate III, for appellants.

Plaintiffs contend that it would be inequitable to bar their claim because they were forced to file suit before the 60-day period expired due to a policy provision requiring that any actions be brought within one year after the date of loss. However, nothing in the case law suggests that there is an equitable exception to the 60-day rule if the lawsuit is filed shortly before the expiration of a limitation period. Indeed, we have held that, because “the section imposes a penalty, it is strictly construed; consequently, a proper demand for payment is essential to recovery.” (Citations omitted.) Howell, supra at 537 (1). Moreover, even if there were an equitable exception to the 60-day rule, plaintiffs would not be entitled to such an exception in this case. Plaintiffs’ failure to make a timely demand for payment stemmed from their 11-month delay in submitting the property inventory forms required by the policy, despite frequent requests therefor by State Farm. Having waited 11 months to submit the necessary documentation, plaintiffs cannot now complain that they were “forced” to file suit before the expiration of the 60-day period. “ ‘It was the misfortune of the insured [s] that [they] so long delayed that, at the time [they were] aroused to action, [they] did not have time sufficient to submit [their] proofs of loss at least sixty days before the expiration of the twelve months within which [they] could bring [their] action in the event the company declined to pay the loss.’ Graham v. Niagara Fire Ins. Co., 106 Ga. 840, 842 (32 SE 579) [(1899)].” Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 708 (4) (a) (172 SE2d 159) (1969).

Plaintiffs also point out that they offered to give State Farm a 30-day extension in which to answer the complaint, thus effectively allowing State Farm 60 days to process the demand for payment. However, the case law is clear that the demand for payment must be made at least 60 days before suit is filed, not 60 days before an answer is required. Indeed, in Norris, the demand for payment was made 51 days before suit was filed, so the 60-day period would have expired before an answer was due. Norris, supra at 575. Nevertheless, the Supreme Court held that the defendant was entitled to judgment as a matter of law because the demand was not made 60 days before suit was filed. Id. Similarly, plaintiffs’ claims in this case are barred due to their failure to make a proper demand 60 days before filing suit.

Judgment affirmed.

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

Swift, Currie, McGhee & Hiers, Thomas D. Martin, Eleanor L. Martel, for appellee.

       Plaintiffs’ complaint also asserted a claim for attorney fees and expenses of litigation under OCGA § 13-6-11. This claim was not addressed in the trial court’s order and is not raised by plaintiffs on appeal. However, we note that “[t]he penalties contained in OCGA § 33-4-6 are the exclusive remedies for an insurer’s bad faith refusal to pay insurance proceeds.” Howell v. Southern Heritage Ins. Co., 214 Ga. App. 536, 537 (2) (448 SE2d 275) (1994).

       It does not appear that this demand constituted a proper demand under OCGA § 33-4-6, since the loss was not payable until 60 days after the insureds submitted their proof of loss, which occurred no earlier than October 26, 1995, when plaintiffs submitted their first property inventory lists. “[T]he demand must be made at a time when a demand for immediate payment is in order.” (Punctuation omitted.) Napp v. American Cas. Co., 110 Ga. App. 673, 675 (2) (139 SE2d 425) (1964). Nevertheless, it is not necessary to consider this issue, since the demand, even if proper, was not made 60 days before suit was filed.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A98A2028, A98A2029.
    HYDE et al. v. GILL; and vice versa.
    (513 SE2d 278)
   McMurray, Presiding Judge.

Hyde Recreation, a partnership composed of William C. Hyde, Gary Hyde and Clint Hyde (“the Partnership”), turned over a pool hall business known as Hyde Recreation (“the business”) to Steve Gill on June 14, 1993, under an agreement (“the Option Contract”) which provided Gill with a one-year lease and an option to purchase the business by May 15, 1994. The Option Contract lists the business’ inventory and equipment and, under its purchase price provision, states that “[t]he business shall include all equipment and inventory referred to herein, the goodwill of the business, and the right to use the name Hyde Recreation, Kendrick’s Recreation, or any combination thereof.” The Option Contract required Gill to pay an escrow agent $6,000 at the Option Contract’s inception plus $600 per month during the agreement’s lease term. The Option Contract also required Gill to assume Clint Hyde’s $600 per month rental payment obligation under a lease for certain real property (“the business premises”) he acquired for the business’ operation through July 31, 1995. The provision required Gill to “abide by all terms and conditions of the [business premises] lease during all such times as [Gill] occupies said premises unless [Gill] obtains a modification or new lease agreement with [the landlord of the business premises].” This right to modify the business premises lease was accompanied by a requirement that, “[a]t the termination of [the Option Contract] lease [term, Gill] shall surrender the premises to [the Partnership] in the same condition as at the commencement of [the Option Contract] lease, normal wear and tear excepted.”

In August 1993, Gill entered into a $700 per month lease (“the modified lease”) with the business premises’ landlord providing Gill use and control of the property through July 31, 1995. Sometime later, Steve Gill abandoned the business premises, moved the business’ inventory and equipment to another location and began using this new location to operate a pool hall business known as “Stevo’s Pool Room.”

Gill notified the Partnership, via letter dated April 12,1994, that he did not intend to exercise his option to purchase the business; that he wanted to “get together and talk about arrangements for ending the relationship and returning the property” to the Partnership, and that he was interested in purchasing some of the business’ inventory and equipment. Gill thereafter (apparently) honored his monthly rental payment obligation for the business until the Option Contract lease expired on June 13, 1994. But he did not honor his promise to surrender the business “in the same condition as at the commencement of [the Option Contract] lease [term], normal wear and tear excepted.” Instead of restoring the business at the business premises, four days after expiration of the Option Contract lease term (June 17, 1994), Gill subleased the business premises to tenants who promised to use the business premises “as a video game room and grill only.” Ten days later, via a letter dated June 27, 1994, Gill advised the Partnership that, “[o]n the 30th day subsequent to your failure to pick up [the business’ inventory and equipment (which then, apparently, remained at “Stevo’s Pool Room”), a] storage . . . rate of $20.00 per day shall be assessed against this property.”

The Partnership posted a letter, dated July 26, 1994, notifying Gill of his failure to comply with the Option Contract’s requirement for him to surrender the business “in the same condition as at the commencement of [the Option Contract] lease.” In this letter, the Partnership suggests that Gill cure this default by purchasing the business as specified in the Option Contract, paying the Partnership $31,800 for the business’ assets, restoring the business at the business premises, or surrendering “Stevo’s Pool Hall” to the Partnership.

Gill posted a letter to the Partnership, dated August 2, 1994, offering to purchase some of the business’ inventory and equipment (at a rate lower than suggested by the Partnership) and informing the Partnership that, if the Partnership does “not accept this proposal, [Gill stands] ready to return the property to [the Partnership] as contemplated in the original agreement [and that his] previous demand for storage charges would still apply in the future.”

The Partnership did not respond, and in a letter dated November 1, 1994, Gill directed the Partnership to “pick up” its equipment, pay storage costs, or lease “Stevo’s at a negotiated price.” When the Partnership did not respond, Gill posted another letter to the Partnership on “June 21, 1995, stating that [the Partnership] could retrieve the property or ... be subject to risk of any loss as the property could not be fully protected.” The Partnership did not respond, and on April 2, 1996, Gill “notified the Partnership that the property would be disposed of if not reclaimed within ten (10) days.”

On April 10, 1996, plaintiffs Gary Hyde and Clint Hyde, d/b/a Hyde Recreation, brought an action against Gill for breach of contract and conversion of the business’ inventory and equipment. Gill denied the material allegations of the complaint and counterclaimed for damages based on plaintiffs’ alleged bad faith and stubborn litigiousness. Gill also sought to recover for storing the business’ inventory and equipment. The trial court granted Gill’s motion for summary judgment as to plaintiffs’ breach of contract claim, but denied this motion as to plaintiffs’ conversion claim. The trial court denied Gill’s motion for summary judgment as to his counterclaim. Plaintiffs appeal in Case No. A98A2028, and Gill cross-appeals in Case No. A98A2029. Held:

Case No. A98A2028

1. Plaintiffs contend the trial court erred in granting Gill’s motion for summary judgment, arguing that genuine issues of material fact remain as to their breach of contract claim. We agree.

“ ‘In order to prevail on a motion for summary judgment (OCGA § 9-11-56), a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. . . . The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him.’ (Citations and punctuation omitted.) Collier v. Evans, 199 Ga. App. 763, 766 (5) (406 SE2d 90) (1991).” Trust Co. Bank v. Stubbs, 203 Ga. App. 557, 560 (1) (417 SE2d 373). In the case sub judice, the trial court erred in finding that Gill made a prima facie showing that he is entitled to judgment as a matter of law on the Partnership’s breach of contract claim. Gill’s own affidavit reveals that he failed to comply with the Option Contract’s requirement that Gill, “[a]t the termination of [the Option Contract] lease, . . . surrender the premises to [the Partnership] in the same condition as at the commencement of [the Option Contract] lease, normal wear and tear excepted.”

Gill, nonetheless, contends “[t]he Partnership’s failure to accept the tender of the premises and the personal property results in a waiver and estoppel which would prevent it from obtaining damages against Gill as a matter of law.” This assertion is not supported by the record.

While there is evidence that Gill asked the Partnership to “pick up” the business’ inventory and equipment at the end of the Option Contract lease term, there is no proof that he then offered to surrender the business to the Partnership as he found it at the beginning of the Option Contract, i.e., a pool hall business establishment at the business premises. In fact, the evidence is undisputed that, instead of restoring the business to the Partnership as promised, Gill subleased the business premises four days after expiration of the Option Contract lease term (June 17,1994) to tenants who promised to operate a business which would not compete with “Stevo’s Pool Room.” While Gill excuses this conduct by arguing that the landlord of the business premises refused to allow the Partnership to occupy the property after expiration of the Option Contract, any such proof (indicating conduct by the Partnership which may have compromised Gill’s ability to fulfill his promise to restore the business) amounting to estoppel or implicit waiver would be a matter for jury resolution. See Jefferson-Pilot Communications Co. v. Phoenix City Broadcasting &c., 205 Ga. App. 57, 62 (2) (421 SE2d 295); Rowe v. Ben’s Truck Stop, 197 Ga. App. 514, 515 (1) (398 SE2d 760).

Gill next contends the trial court properly granted his motion for summary judgment as to the Partnership’s breach of contract claim, arguing that the Partnership did not provide written notice of his alleged breach as required under the Option Contract’s provision that, “[i]n the event [Gill] defaults in the payment of any installment of rentals when due, or otherwise breaches this lease, the [Partnership] shall give written notice of such breach to [Gill] and [Gill] shall have an additional 15 days from receipt of notice to cure said breach.” This assertion is not supported by the record.

Gill’s own evidence shows that the Partnership posted a letter, dated July 26, 1994, notifying Gill of his failure to comply with the Option Contract’s provision requiring restoration of the business to the Partnership. Even though this letter provided Gill with several ways to cure this default, it is undisputed that Gill failed to do so within 15 days after receiving this letter.

Gill also contends the trial court properly granted his motion for summary judgment as to plaintiffs’ breach of contract claim, arguing that plaintiffs were not the real party in interest to press a claim on behalf of the Partnership. This argument is without merit. “[S]ummary judgment cannot properly be granted to a defendant on the basis of a real party-in-interest objection. See Walsey v. Lockhart, [136 Ga. App. 624, 625 (1) (222 SE2d 141)].” Warshaw Properties v. Lackey, 170 Ga. App. 101, 102 (316 SE2d 482). See also Hodgskin v. Markatron, Inc., 185 Ga. App. 750, 751-752 (3) (365 SE2d 494); Wurlitzer Co. v. Watson, 207 Ga. App. 161, 164 (1) (427 SE2d 555).

The trial court erred in granting Gill’s motion for summary judgment as to the plaintiffs’ breach of contract claim.

Case No. A98A2029

2. The trial court did not err in denying Gill’s motion for summary judgment as to plaintiffs’ conversion claim. Proof that Gill lost his right to use or possess the business’ inventory and equipment upon expiration of the Option Contract lease term, that Gill kept this equipment at “Stevo’s Pool Room” after expiration of the Option Contract lease term, and that he did not return the business’ inventory and equipment to the business premises upon expiration of the Option Contract lease term raises genuine issues of material fact as to Gill’s liability for conversion. “Conversion involves an ‘unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.’ Southern Express Co. v. Sinclair, 130 Ga. 372, 373 (60 SE 849) (1908).” King v. Crain-Daly Volkswagen, 207 Ga. App. 583, 585 (428 SE2d 586). “ ‘Any distinct act of dominion wrongfully asserted over another’s property in denial of his right, or inconsistent with it, is a conversion. It is unnecessary to show that the defendant applied it to his own use, if he exercised dominion over it in defiance of the owner’s right, or in a manner inconsistent with it. . . . It is immaterial that such dominion was exercised in good faith, for whoever meddles with another’s property . . . does so at his peril. . . .’ (Citations and punctuation omitted.) Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 261 (356 SE2d 877) (1987); see Adams & Adams, Ga. Law of Torts, § 2-7.” Katz v. Harris, 217 Ga. App. 287, 289 (2) (457 SE2d 239). Gill’s reliance, in the case sub judice, on Kornegay v. Thompson, 157 Ga. App. 558, 559-560 (2) (278 SE2d 140), is misplaced in light of proof which would authorize a finding that Gill, without authority, unfairly converted the Partnership’s property. See Lovinger v. Hix Green Buick Co., 110 Ga. App. 698, 700 (2) (140 SE2d 83).

Gill argues that the trial court should have granted his motion for summary judgment with regard to plaintiffs’ conversion claim based on his laches defense. We do not agree. “ ‘The doctrine of laches is a purely equitable defense and is not applicable to a complaint for the enforcément of a legal right.’ Stuckey v. Storms, 265 Ga. 491 (458 SE2d 344) (1995); Jones v. Tri-State Elec. Coop., 212 Ga. 577, 582 (3) (94 SE2d 497) (1956).” (Footnote omitted.) Dept. of Human Resources v. Mitchell, 232 Ga. App. 215, 216-217 (1) (501 SE2d 508).

Decided March 2, 1999.

Thomas H. Pittman, for appellants.

Kunes & Kunes, G. G. Joseph Kunes, Jr., for appellee.

3. Construing the evidence most strongly in favor of the Partnership, the trial court did not err in denying summary judgment as to Gill’s counterclaim for his alleged costs of storing the business’ inventory and equipment. Burnette Ford, Inc. v. Hayes, 227 Ga. 551, 552 (181 SE2d 866); Combs v. Adair Mtg. Co., 245 Ga. 296 (264 SE2d 226). Evidentiary deficiencies in this regard include lack of proof regarding how long, under what conditions and where Gill allegedly stored the business’ inventory and equipment.

The trial court did not err in denying summary judgment as to Gill’s claim for attorney fees and expenses of litigation. “ ‘(T)he intent of the law . . . is to leave the matter of expenses ... to the jury trying the case. (Cit.)’ Brannon Enterprises v. Deaton, 159 Ga. App. 685, 687 (285 SE2d 58) (1981).” J. M. Clayton Co. v. Martin, 177 Ga. App. 228, 232 (6) (339 SE2d 280).

Judgment affirmed in Case No. A98A2029. Judgment reversed in Case No. A98A2028.

Blackburn and Eldridge, JJ, concur.

       Gill explained this move in his affidavit. He deposed that “after [he] had operated the business for some time, it became apparent to him that the business was not profitable due to several factors, not the least of which included the deteriorated condition of the building and the fact that the highway in front of the business had been widened by the State and all of the onstreet parking had been eliminated. As the [Option C]ontract did not have any requirement that [he] continuously keep the business open, he chose to close the business and .. . opened a new business under another name at a different location.”

       Plaintiffs filed an amended complaint seeking damages for “tortious destruction of and interference with their business, business location, equipment and goodwill.” This claim was not addressed in the trial court’s summary judgment order.

       The parties assert opposing arguments regarding the propriety of the trial court’s ’ order striking Gary Hyde’s affidavit. We do not address this issue because we do not consider Gary Hyde’s affidavit in reviewing the cases sub judice.


author: Johnson, Chief Judge.

text:
    A98A2181.
    BIK ASSOCIATES et al. v. TROUP COUNTY.
    (513 SE2d 283)
   Johnson, Chief Judge.

Troup County commenced a condemnation action against land owned by BIK Associates, a partnership. The declaration of taking was filed against BIK and other condemnees who had an interest in the subject property. The county contended the taking was necessary for a road construction project which would reroute a portion of U. S. Highway 29 (“Highway 29”). Troup County acquired two easements and 726.98 square feet of BIK’s property, for which the jury awarded $30,000 in compensation. Being dissatisfied with the amount of its recovery, BIK appeals. We find no error and affirm.

BIK’s property consisted of two parcels of land which abutted and were directly accessible to Highway 29. A commercial building is located on each parcel. From one parcel, Troup County took 726.98 square feet of land located in a drainage basin. It acquired a permanent slope easement and temporary construction easement on the other parcel.

As a result of the road project, Highway 29 was rerouted, and the public road abutting BIK’s remaining property was modified and renamed “New Airport Road.” After the project is completed, the elevation of New Airport Road will be five to six feet higher at its center-line, and the centerline will be moved approximately twenty-five feet further away from BIK’s buildings. BIK will retain direct access to New Airport Road. Although BIK’s new driveways will be substantially in the same location and of the same width as its current driveways, the new driveways will be longer and have an approximate 11 percent increase in elevation. BIK’s property will have access to Highway 29 by use of an access ramp. The ramp’s entrance will be approximately 200 feet from the property.

1. Troup County filed a motion in limine to prevent BIK from introducing any evidence of consequential damages resulting from a change in traffic conditions and from introducing such evidence to determine value before and after the taking. The trial court entered an order directing BIK not to present any evidence of consequential damages based on alleged changes of traffic pattern, traffic volume, or circuity of travel resulting from the relocation of U. S. Highway 29, a ruling BIK argues was error. We disagree.

“[O]ne whose right of access from his property to an abutting highway is cut off or substantially interfered with has a special property right which entitles him to damages. But if his access is not so terminated or obstructed, if he has the same access to the highway as he did before the closing, his damage is not special, but is of the same kind, although it may be greater in degree, as that of the general public, and he has lost no property right for which he is entitled to compensation.” (Citation and punctuation omitted.) MARTA v. Fountain, 256 Ga. 732, 733 (352 SE2d 781) (1987). This principle applies to both condemnation and inverse condemnation cases. Compare id. and Dept. of Transp. v. Durpo, 220 Ga. App. 458, 460 (1) (469 SE2d 404) (1996), with Dept. of Transp. v. Taylor, 264 Ga. 18, 20 (3) (c) (440 SE2d 652) (1994), and Dept. of Transp. v. Katz, 169 Ga. App. 310, 311 (2) (312 SE2d 635) (1983). Although the length and grade of driveways to the property have been changed, BIK has substantially the same direct access to New Airport Road as it previously had to Highway 29. BIK’s access to New Airport Road, which still abuts BIK’s land parcels, has neither been obstructed nor terminated.

Inconveniences shared by the public in general, such as changes in traffic pattern, circuity of travel, and similar traffic conditions, are not compensable; thus, a “ ‘greater difficulty in ingress and egress which is occasioned by a change in traffic patterns is not an appropriate item of damages in proceedings such as this.’ [Cit.] ” Dept. of Transp. v. Taylor, supra at 20 (3) (b). The trial court did not err in excluding evidence of changes in traffic conditions.

2. One of BIK’s witnesses testified: “The total driveway will be longer than it is now. The centerline of the new road ... is maybe 100 feet beyond where the centerline is now. In addition, as I remember from looking at the plans, despite what the site superintendent said earlier. . . .” (Emphasis supplied.) The trial court interrupted the testimony at that point, and ruled, sua sponte, that the witness could not pass judgment on another witness’s testimony. The trial court directed BIK’s counsel to just ask questions and let the witness answer. BIK asserts the trial court erred because its ruling prevented BIK from introducing evidence to contradict the testimony of an opposing witness. Judging from the record before us, this is not what happened. The trial court merely prevented BIK’s witness from expressing an opinion about the credibility of another witness’s testimony. Witness credibility is a matter for jury determination. OCGA § 24-9-80. It is not the function of witnesses to determine the veracity of other witnesses. Golden v. State, 233 Ga. App. 703 (505 SE2d 242) (1998).

3. BIK asserts that the trial court erroneously denied it the opportunity to introduce evidence of diminished value to its property caused by drainage and water run-off. The record and transcript do not support this contention.

Following the deposition of BIK’s engineer, Troup County filed a third motion in limine to exclude the engineer’s testimony about drainage problems existing prior to the construction project and to exclude testimony about potential drainage and water problems arising from the entire road extension project. Thus, Troup County sought to preclude BIK from introducing evidence of pre-existing drainage problems and evidence of drainage problems caused by conditions existing in other parts of the project, which did not arise from the taking of the 726.98 square feet of BIK’s property and the acquiring of the easements.

In a pre-trial deposition, the engineer testified that in the event of a “100-year rain,” structural flooding could occur to a home downstream as well as to one of BIK’s buildings if the drainage channel was not properly designed or it was not properly maintained. He further testified that if the new drainage channel was properly maintained, BIK’s property should be protected from flooding; however, even if the drainage channel was properly maintained, BIK’s parking lot could still flood from water coming from town, rather than from the drainage channel. He also testified that if the sewer lines were properly installed, BIK’s property would not flood.

(a) Drainage and water problems allegedly due to negligent construction or maintenance. The trial court ruled that BIK’s engineer could not testify as to any consequential damages which would result from drainage or water problems arising from and negligent construction of the road project. The trial court did not err in this ruling.

Consequential damages are damages which naturally and proximately arise to the remainder of the owner’s property from the taking of the condemned portion and the use of the property for the purposes for which it is taken. Butler v. Gwinnett County, 223 Ga. App. 703, 704 (1) (479 SE2d 11) (1996). While a condemnation proceeding is conclusive as to all damages whether foreseen or unforeseen resulting from proper construction on condemned property, damages caused by negligent or improper construction on condemned property are recoverable in a separate suit from the condemnation proceeding. Id.

The collection and discharge of surface water caused by negligent or improper construction or maintenance are not proper matters for consideration in a condemnation proceeding. See Panos v. Dept. of Transp., 162 Ga. App. 53-54 (2) (290 SE2d 295) (1982). Such damages do not naturally and proximately arise from the taking and thus do not qualify as consequential damages.

(b) Drainage and water problems not arising from the taking. We find the trial court did not prevent BIK from introducing admissible evidence of drainage or water damage caused by the taking. The record shows that the trial court initially asked the parties if they understood that water and drainage issues would be the subject of a new suit. The trial court further stated that the issue of water and drainage did not appear to be relevant in determining fair and just compensation. The apparent purpose of this inquiry was to notify the parties of the court’s intent to preclude the introduction of irrelevant or immaterial evidence. BIK’s counsel replied that its expert witness would testify as to damages resulting from the taking and would also testify that the remaining property would be damaged by the taking.

Upon examining the argument of BIK’s counsel and the responses of the trial court, it appears that the trial court’s subsequent ruling was neither intended to nor did it prohibit BIK’s expert from testifying as to any water or drainage damages which would naturally and proximately arise from the taking. The trial court appears to have correctly concluded that BIK could not introduce evidence of drainage problems existing prior to the taking, drainage problems to property not belonging to BIK, or evidence of drainage problems which might exist in the future if the County was negligent in its construction. The trial court did not err in excluding this evidence as it would be neither relevant nor material to establish consequential damages in this case. As also recognized by the trial court, any drainage problems which might hereafter arise to BIK’s property if the County should negligently construct the roadway project would be admissible only in a separate suit for damages resulting from that negligent construction. OCGA § 24-2-1; see also Panos, supra at 53 (2).

After the trial court’s ruling, BIK did not establish the existence of any specific drainage or water damage which would naturally and proximately arise from the taking. We must conclude that BIK either did not have such evidence or misconstrued the scope of the trial court’s ruling. If any doubt exists as to the ruling of a trial court, it is the party’s responsibility to seek timely clarification of its scope and intended purpose.

4. BIK contends that the trial court erred by not allowing it to introduce evidence of diminished value to the remainder resulting from reduced visibility of the property caused by the taking. We find this contention to be without merit.

The trial court allowed William Johnson, a partner of BIK Associates, to testify that as a result of the construction, BIK’s property now sits in a hole because the elevation of New Airport Road has been raised and the centerline of the road has been moved away from BIK’s building, and that the value of the property was also diminished by the increased length and elevation of the driveways to BIK’s property. The court would not allow Johnson to testify as to the visibility of the property from rerouted Highway 29.

An objection was sustained when Gordon Smith, Jr., a licensed architect, attempted to testify how “a section elevation view of the proposed new Vernon Road” (the rerouted Highway 29) would affect the visibility of BIK’s property. In determining the elevation depicted in his elevation drawing, Smith used “the center line of the height of the new Vernon Road as it relates to the buildings” on BIK’s property. BIK’s property does not abut the new Vernon Road.

The trial court did not abuse its discretion when it did not admit evidence of a decrease in visibility of the BIK property from road locations which did not abut that property. New Airport Road is old Highway 29; particularly it is the same road that abutted BIK’s property both before and after the rerouting of Highway 29. BIK’s reliance on Perry v. Dept. of Transp., 193 Ga. App. 254 (387 SE2d 445) (1989), is misplaced. This Court did not rule in Perry that evidence of reduced visibility of the remainder could be admitted to show diminished value where the reference point of visibility did not abut the remaining property. Questions neither brought to the attention of the Court nor ruled upon will not be considered as precedent. See Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 SE2d 529) (1960); Jackson v. City of College Park, 230 Ga. App. 487, 490 (1) (496 SE2d 777) (1998). To be admissible as evidence of consequential damages, reduced visibility must have resulted in damage which naturally and proximately arose to the remainder from the taking and the devoting of the taking to the purposes for which it was condemned. Butler, supra at 704 (1). BIK has failed to show how the excluded evidence met the consequential damages test; both error and harm must be shown before a case will be reversed.

Decided March 2, 1999.

Daniel W. Lee, for appellant.

Lewis, Taylor, Todd & Dixon, Jeffrey M. Todd, for appellee.

Judgment affirmed.

Smith and Barnes, JJ, concur.


text:
    A98A2252, A98A2253.
    BRYAN v. BROWN CHILDS REALTY COMPANY, INC.; and vice versa.
    (513 SE2d 271)
   McMurray, Presiding Judge.

Plaintiff Brown Childs Realty Company, Inc. (“Childs”) filed this action against defendant Bryan seeking declaratory judgment, injunctive relief, damages, and cost of litigation. The action is based on a contract between the parties concerning commissions arising from sales of real estate.

The contract upon which plaintiff relies was negotiated and executed in connection with defendant’s purchase of a tract of approximately 128.5 acres. This “REALTOR’S COMMISSION AGREEMENT” recites that, in addition to certain compensation to be paid by the sellers of the 128.5-acre tract, Childs (the plaintiff herein) “is entitled to additional compensation, both for being the procuring agent of the sale, as well as [plaintiff’s] willingness to enter into a listing agreement with [defendant] under which [plaintiff] will market the subject property for resale. . . .” The agreement provided for a deferred payment to plaintiff of $1,000 per acre as the property is closed at resale and for an exclusive listing agreement providing for a commission of six percent on any acceptable contract for the sale of all or a portion of the property. There is additional provision for an equal sharing by plaintiff and defendant of the sum remaining after sales proceeds are reduced by plaintiff’s six percent commission, plaintiff’s $1,000 per acre deferred commission, defendant’s closing costs, defendant’s acquisition cost, and defendant’s profit. This contract between plaintiff and defendant was executed on August 14, 1992.

Plaintiff’s attempts to resell the property were unsuccessful, and no acceptable contract was submitted to defendant prior to March 13, 1996, when defendant entered into an option contract with a potential purchaser for a portion of the property. Plaintiff was not the procurer of the option contract and requested defendant’s assurances that their 1992 contract would be honored. Plaintiff filed this action after defendant asserted that the 1992 contract was void and unenforceable.

Subsequently, plaintiff moved for partial summary judgment on four issues. Initially, plaintiff’s motion was denied as to three issues. The remaining issue, which was also the subject of an opposing motion for partial summary judgment by defendant, was whether plaintiff had standing to seek enforcement of the 1992 contract in the light of the statutory licensing requirements for real estate brokers and salespersons. See OCGA § 43-40-24. The superior court granted plaintiff’s motion for partial summary judgment on the standing issue and denied defendant’s motion for partial summary judgment resulting in the main appeal by defendant, Case No. A98A2252.

On January 28, 1996, approximately three weeks after the entry of the original order on the opposing summary judgment motions and after the filing of defendant’s notice of appeal, the superior court entered an amendment to the earlier summary judgment order. In the amended order, the superior court finds as a matter of law that the agreement between the parties does not create an equitable interest for the plaintiff in the property owned by defendant. This amendment addresses one of the three grounds for partial summary judgment which were raised by plaintiff and initially denied. The change is in effect a grant of partial summary judgment to defendant on this issue. In Case No. A98A2253, plaintiff appeals both the original and amended orders of the superior court on the summary judgment issues. Held:

1. In the main appeal, Case No. A98A2252, the sole enumeration of error maintains that pursuant to OCGA § 43-40-24 (b), the plaintiff lacked standing to pursue its claim for real estate commissions because the real estate agent, Brown Childs, was not duly licensed. OCGA § 43-40-24 (b) provides that: “No broker shall bring or maintain any action in the courts of this state for the collection of compensation for the performance of any of the acts mentioned in this chapter without alleging and proving that any person acting in the broker’s behalf was duly licensed in Georgia at the time the alleged cause of action arose.” Brown Childs is plaintiff’s salesperson and was the only representative of the plaintiff realty company to deal with defendant. The Georgia Real Estate Commission placed the real estate salesperson’s license of Brown Childs on inactive status on April 1,1992. “Any licensee whose license has been placed on an inactive status may not engage in the real estate brokerage business except in connection with property owned by the licensee.” OCGA § 43-40-12 (g). Compare OCGA § 43-40-29 (a).

The license of Brown Childs was returned to active status on June 10, 1996. Plaintiff maintains that under the plain language of OCGA § 43-40-24 (b), the interval during which Brown Childs’ license was inactive is of no consequence since it had been returned to active status prior to the time the alleged cause of action arose. This is correct, and the superior court was correct to determine that the provisions of this statutory subsection do not bar plaintiff’s claims. (We need not reach the further question of whether the entire contract being sued upon is a brokerage contract subject to OCGA § 43-40-24 (b), or whether some portions of the contract are in the nature of a promissory note given for past services. See Azar-Beard & Assoc. v. Wallace, 146 Ga. App. 671-672 (1) (247 SE2d 154).)

In so holding, we do not disregard the clearly stated public policy of Georgia that certain enumerated services connected with real estate be performed by licensed persons. See Northside Realty Assoc. v. MPI Corp., 245 Ga. 321, 322 (265 SE2d 11); Atlanta Apt. Investments v. New York Life Ins. Co., 220 Ga. App. 595 (469 SE2d 831). And for purposes of opposing a motion for summary judgment, the evidence in the case sub judice must be construed as showing a number of violations of that public policy by Brown Childs and by his principal, the plaintiff. Nonetheless, for purposes of applying OCGA § 43-40-24 (b), we are concerned under the provisions of the statute with only that point in time when the alleged cause of action arose.

The earliest date upon which plaintiff’s cause of action could be deemed to have arisen was November 8, 1996, when defendant acting through his attorney repudiated the 1992 contract. See Feagin v. Feagin, 174 Ga. App. 474, 475 (330 SE2d 410). On' this date and thereafter, the real estate salesperson’s license of Brown Childs was active, and consequently OCGA § 43-40-24 (b) provides no bar to plaintiff’s claim.

We have examined the authority cited by both parties and find that these cases may invariably be distinguished on the facts, in most instances, because they involve brokers or salespersons who lacked the appropriate licenses and whose status in this regard did not vary. However, one of these-cases does involve a change in licensing and may be somewhat instructive in relation to the case sub judice.

In Northside Realty Assoc. v. MPI Corp., 245 Ga. 321, supra, an unlicensed corporation served as co-broker in a contract for the sale of realty. The corporation became a licensed broker after the signing of the sales contract and before the date upon which the sale was closed. The Supreme Court of Georgia carefully enunciated the strong public policy interest involved in the licensing of those who conduct certain aspects of real property transactions and noted the statutory bar to any person bringing an action for compensation for the performance of such acts without alleging and proving that he was a duly licensed broker or salesperson. Nonetheless, the decision of the case was based entirely upon application of the statutory language, with the holding that compensation was barred because the claim arose at the signing of the contract which was prior to that corporation obtaining a broker’s license. The opposite result must be reached in the case sub judice because Brown Childs was properly-licensed at the time plaintiff’s cause of action arose.

Decided March 2, 1999

Edenfield, Cox, Bruce & Classens, Gerald M. Edenfield, Susan W. Cox, for appellant.

Franklin, Taulbee, Rushing, Bunce & Brogdon, James B. Franklin, Daniel B. Snipes, for appellee.

2. The cross-appeal, Case No. A98A2253, must be dismissed. Defendant filed his notice of appeal five days before the superior court entered its amended order. “ ‘The filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect.’ Brown v. Wilson Chevrolet-Olds, 150 Ga. App. 525, 531 (2) (258 SE2d 139) (1979). Accord Anaya v. Brooks Auto Parts, 208 Ga. App. 491, 493 (1) (430 SE2d 825) (1993). See OCGA § 5-6-46 (a).” Screven v. Drs. Gruskin & Lucas, PC., 227 Ga. App. 756, 757 (1) (490 SE2d 422). See also Deans v. Dain Mgmt., 201 Ga. App. 466, 468 (411 SE2d 354). The amended order is void, and we lack jurisdiction to consider the appeal.

Judgment affirmed in Case No. A98A2252. Appeal dismissed in Case No. A98A2253.

Blackburn and Eldridge, JJ, concur.


author: Blackburn, Judge.

text:
    A98A2191.
    WYMBS v. STOKES.
    (512 SE2d 669)
   Blackburn, Judge.

Franklin Wymbs appeals the trial court’s apportionment, pursuant to OCGA § 19-7-1 (c), of a recovery for the wrongful death of his son, Aquontius, between himself and his ex-wife, Beverly Stokes. Wymbs contends that the court abused its discretion by: (1) not considering Wymbs’ relationship to Aquontius prior to his divorce from Stokes; (2) considering the relationship between Aquontius and his maternal grandmother, Mildred Stokes; and (3) awarding Wymbs only three percent of the wrongful death recovery. For the reasons set forth below, we affirm.

Following the death of her minor son in a car accident on March 9, 1995, Stokes, as administrator of Aquontius’ estate, sued the Department of Transportation for wrongful death. Stokes had previously divorced Wymbs in 1991. Although Wymbs initially refused to take part in the wrongful death action, Stokes brought her suit against the DOT pursuant to OCGA § 19-7-1 (c) (2) (C), which provides: “If the deceased child does not leave a spouse or child, the right of recovery shall be in the parent or parents ... as follows: If both parents are living but are divorced . . . , the right shall be in both parents. However, if the parents are divorced . . . and one parent refuses to proceed . . . the other parent shall have the right to contract for representation on behalf of both parents, thereby binding both parents, and the right to proceed on behalf of both parents to recover for the homicide of the child with any ultimate recovery to be shared by the parents as provided in this subsection.”

Subsequently, after deciding that he did want to participate, Wymbs was allowed to intervene in Stokes’ action prior to the time the parties agreed to a settlement in the sum of $250,000. Stokes moved the trial court to apportion the settlement proceeds pursuant to OCGA § 19-7-1 (c) (6), which states: “For cases in which the parents of a deceased child are divorced , a motion may be filed by either parent prior to trial requesting the judge to apportion fairly any judgment amounts awarded in the case. Where such a motion is filed, a judgment shall not be automatically divided. A post-judgment hearing shall be conducted by the judge at which each parent shall have the opportunity to be heard and to produce evidence regarding that parent’s relationship with the deceased child. The judge shall fairly determine the percentage of the judgment to be awarded to each parent. In making such a determination, the judge shall consider each parent’s relationship with the deceased child, including permanent custody, control, and support, as well as any other factors found to be pertinent. The judge’s decision shall not be disturbed absent an abuse of discretion” After a post-judgment hearing, the trial judge awarded three percent of the settlement proceeds to Wymbs and ninety-seven percent to Stokes.

1. Wymbs contends that the trial court erred by refusing to consider evidence of his relationship with Aquontius prior to the time he divorced Stokes in 1991. A review of the transcript, however, indicates that the trial court did not wholly exclude such evidence. The trial court merely concluded that evidence of Aquontius’ relationship with each of his parents during the four years subsequent to the divorce was more pertinent than evidence of such relationship prior to the divorce. Furthermore, Wymbs agreed with this conclusion on the record without objection of any kind. As such, he waived his right to complain about this issue on appeal. See, e.g., Price v. State, 222 Ga. App. 655 (1) (475 SE2d 692) (1996).

2. Wymbs contends that the trial court erred in considering evidence of Aquontius’ relationship with his maternal grandmother in apportioning the settlement. Wymbs argues that OCGA § 19-7-1 (c) (6) requires the judge to hear only evidence regarding the parents’ relationship to the child. This argument is misplaced. The statute allows a judge to consider permanent custody, control, and support, as well as other factors found to be pertinent. Certainly, the impact of the relationships between a grandparent and a parent and a grandparent and a grandchild may be pertinent factors in determining the depth and extent of the relationship between a parent and a child in some cases. As such, we do not find an abuse of the trial court’s discretion based on the consideration of such testimony. Moreover, we note that Wymbs solicited evidence regarding the relationship of his parents to Aquontius during the hearing and failed to object to testimony from and about Aquontius’ maternal grandmother, thereby waiving his right to complain on appeal. Price, supra.

Decided February 19, 1999

Reconsideration denied March 3, 1999

David W. Griffeth, for appellant.

Scott, Quarterman & Wells, Howard T. Scott, Johnson & Ward, William C. Lanham, Clark H. McGehee, for appellee.

3. Finally, Wymbs contends that the evidence does not support the trial court’s apportionment. We disagree.

The testimony and evidence showed, among other things, that Wymbs neither paid child support nor visited his son on a regular basis following the divorce. As such, the evidence supported a determination that Wymbs’ emotional and financial relationship to his son was bankrupt. On the other hand, the evidence also showed that Stokes retained custody of Aquontius following the divorce and did all that she could to support her son. Accordingly, the trial court did not abuse its discretion in apportioning the settlement proceeds in this case.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A2263.
    PHILLIPS v. THE STATE.
    (512 SE2d 32)
   Blackburn, Judge.

Larry Phillips, proceeding pro se, appeals both the trial court’s order denying his motion to correct illegal sentences and its subsequent order dismissing his motion for reconsideration. Phillips contends the sentences he received for child molestation and sexual exploitation of children, among other things, in 1990 and in 1994, after entering negotiated pleas, are illegal. We find Phillips’ sentences are not illegal and, therefore, affirm.

In 1990, Phillips, with the assistance of counsel, negotiated a guilty plea to three counts of sodomy, one count of violating the Georgia Controlled Substances Act, and one count of sexual exploitation of children. The trial judge accepted the guilty plea and followed the State’s recommendation to impose: (1) a twenty-year sentence, three years to serve and seventeen on probation; (2) banishment from the Cherokee Judicial Circuit; and (3) a $10,000 fine with applicable surcharges.

At the 1990 sentencing hearing, the court was informed by Phillips’ counsel that the State was in possession of certain computer equipment which had been seized from Phillips. The judge indicated that Phillips was entitled to the return of his property or, if he wished, could allow the State to keep it and apply its appraised market value to his fine. Phillips contends he allowed the State to retain his property but did not receive credit toward his fine.

In 1994, after serving his prison time for his 1990 convictions, Phillips violated his probation and was arrested. With the assistance of counsel, he again negotiated a guilty plea to two counts of aggravated child molestation and eight counts of sodomy. The trial court accepted this guilty plea and followed the recommendation of the State to impose: (1) a sentence of thirty years, ten to serve and twenty on probation; (2) restitution for any counseling needed by the teenage victim; and (3) a prohibition from fraternizing with any child under the age of eighteen without the supervision of an adult not related to Phillips. Phillips’ counsel was present at the sentencing hearing, and the court asked Phillips if his counsel did anything to which he objected. Phillips answered, “No, sir.”

In 1998, Phillips filed a motion in the trial court to correct illegal sentences, contending that both his 1990 and 1994 sentences are illegal for multiple reasons. The court denied the motion, and Phillips filed a notice of appeal. After filing his notice, Phillips filed a motion for reconsideration in the trial court. The trial court then properly dismissed this motion for lack of jurisdiction since Phillips had already. filed a notice of appeal. State v. Ganong, 221 Ga. App. 250 (470 SE2d 794) (1996).

1. Phillips inappropriately groups several arguments under a single enumeration of error contending the trial court erred in denying his motion to correct illegal sentences and in denying his motion for reconsideration. “[T]his court has long recognized that OCGA § 5-6-40 requires that an enumeration of errors shall set out separately each error relied upon. In the exercise of our sound discretion, we may elect to review any one or more of the several assertions of error contained within a single enumeration and to treat the remaining assertions of error therein as abandoned.” (Punctuation omitted.) Holt v. Leiter, 232 Ga. App. 376, 380 (1) (501 SE2d 879) (1998). For this reason, our focus here is whether Phillips’ sentences in 1990 and in 1994 are in fact void “based on what we perceive [his] arguments to be.” In the Interest of C. W. S., 231 Ga. App. 444, 445 (1) (498 SE2d 813) (1998).

This Court has previously held that “[w]here a sentence is void, . . . the court may resentence the defendant at any time.” (Punctuation omitted.) Thomas v. State, 226 Ga. App. 409 (486 SE2d 673) (1997). However, both of Phillips’ sentences were imposed upon the recommendation of the State after Phillips, his attorney, and the prosecutor negotiated the plea agreements. A person may “validly [waive his or her constitutional] rights through the plea bargaining process.” Allen v. State, 258 Ga. 424, 425 (4) (369 SE2d 909) (1988). Likewise, when a person “knowingly and voluntarily enter [s] into [a] negotiated plea agreement and accept [s] [the conditions] of his [or her] probation in open court, he [or she waives] the right to challenge [the] issue on appeal.” Darby v. State, 230 Ga. App. 32, 33 (4) (495 SE2d 146) (1997). As such, Phillips, who agreed to the sentences against him as part of a negotiated plea, has waived his right to challenge the conditions of his sentence on appeal.

2. Moreover, even if Phillips had preserved his right to appeal, his contentions would be meritless. Phillips contends that his 1990 sentence is illegal because he did not receive: (1) relief from the banishment provision of his sentence; or (2) credit toward his fine for his computer equipment in the possession of the State. The record, as it exists before this Court, does not support Phillips’ claim that the banishment provision would be expunged in exchange for his computer equipment. Furthermore, the record indicates that any agreement regarding Phillips’ computer equipment was a collateral agreement between Phillips and the prosecutor regarding the manner or means by which Phillips would pay his fine. “When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” (Punctuation omitted.) Thompson v. Greene, 265 Ga. 782, 784 (1) (462 SE2d 747) (1995). There is no evidence before us to indicate that this collateral agreement constituted any part of the inducement to enter a plea. Moreover, “there can be no serious question here of an unfulfilled promise made by the prosecutor to induce [a] guilty [plea],” Cunningham v. State, 235 Ga. 664 (221 SE2d 428) (1975), since the court made it unequivocally clear that Phillips could choose or not choose to relinquish his computer equipment, but that “the fine has got to be paid.” The sentence which Phillips received is the sentence to which he and his counsel agreed during plea bargaining, and as such, is not illegal. Darby, supra.

Decided February 5, 1999

Reconsideration dismissed March 3, 1999

Larry Phillips, pro se.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

Phillips also claims that the surcharges applied to his 1990 fine for jail construction and maintenance are illegal. The Georgia Code provides, “[i]n every case in which any superior court . . . shall impose a fine ... for any offense against a criminal. . . law of this state . . ., there shall be imposed as an additional penalty a sum equal to 10 percent of the original fine.” OCGA § 15-21-93 (a) (1). The surcharges total $1,000 on a $10,000 fine. These surcharges do not exceed the statutory maximum of the total fine and consequently are not illegal.

3. Finally, Phillips objects to the imposition of restitution without a hearing in his 1994 sentence. The hearing, however, would have been moot since Phillips and his attorney agreed to the payment of restitution. Phillips had the opportunity, either on his own volition or through his attorney, either during the negotiation or in open court, to object to any provision or condition of the plea arrangement with which he did not agree. Neither Phillips nor his attorney objected to the imposition of restitution, and as such, Phillips waived his right to object now. Darby, supra. Phillips’ motion to withdraw his appeal is denied.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


author: Eldridge, Judge.

text:
    A99A0197.
    BELLAMY et al. v. FEDERAL DEPOSIT INSURANCE CORPORATION.
    (512 SE2d 671)
   Eldridge, Judge.

Kenneth and Ivory Bellamy, defendants-appellants (“Bellamy”), previously lost on appeal many of the same issues as presented in the case against Resolution Trust Corporation (“RTC”), predecessor in title to the Federal Deposit Insurance Corporation (“FDIC”) as receiver for Southern Federal Savings Association of Georgia (“Southern”) holder of a note and deed to secure debt. Bellamy v. Resolution Trust Corp., 266 Ga. 630, 631 (469 SE2d 182) (1996). To understand this case, the facts underlying the prior case must be set forth:

Case No. S96A0510, prior appeal

Bellamy purchased the lot upon which to build a house. Bellamy entered into a construction contract with Sunflower Properties, Inc. (“Sunflower”) to build a house and to obtain the construction financing. Bellamy conveyed the lot to Sunflower. Using the lot as collateral, Sunflower obtained a $200,000 construction loan from Southern. Sunflower gave a real estate note and a deed to secure debt to Southern for the $200,000, using the lot and house to be built on it as collateral. Sunflower and Bellamy got into a dispute over the construction, and Sunflower sued Bellamy for money owed; Bellamy counterclaimed for reconveyance of the lot and house. The Sunflower suit went to trial, and the jury returned a verdict against Bellamy to reconvey the house and lot, which the trial court reduced to judgment.

However, no one paid Southern on the construction loan. RTC, on behalf of Southern, gave notice that the default was accelerated both to Bellamy and Sunflower, as well as notice of sale under power. The foreclosure was advertised. RTC bid at foreclosure for the house and lot.

On February 13, 1995, RTC commenced a dispossessory action against Bellamy by serving them personally in the Magistrate Court of Fayette County. Bellamy answered and demanded a jury trial. In the second defense, Bellamy alleged that RTC was not the owner of the property. The first count of the Bellamy counterclaim seeks to set aside the foreclosure because of a failure of notice, a failure to comply with the security deed exercise of power of sale, and other defects. Count 2 of the counterclaim alleged fraud. Bellamy asked that the case be transferred to the Superior Court of Fayette County because equitable relief was sought in the counterclaim.

RTC moved to dismiss the two counts of the counterclaim because the foreclosure had been properly carried out, notice given, and the sale was properly conducted. Further, the oral fraud count was barred by 12 USCA § 1823 (e). Bellamy responded, raising issues as to advertising, improper foreclosure procedure, fraud, and deficiency of notice. After a hearing, the trial court treated the motion to dismiss the counterclaim as a motion for summary judgment and granted summary judgment to RTC against Bellamy on the counterclaim. In the original appeal, Bellamy enumerated only two errors: (1) the trial court’s grant of summary judgment while a motion to compel discovery was pending; and (2) the trial court’s finding that 12 USCA § 1823 barred fraud under the facts of the case. Bellamy did not raise any issues as to Count 1 of the counterclaim in the enumerations of error.

(a) Any attack on the foreclosure procedure and the deed into RTC had to be brought as a compulsory counterclaim to set aside the foreclosure deed. OCGA § 9-11-13 (a). Thus, any defect in the advertising of the foreclosure, conduct of sale, deed under power of sale, or other basis to set aside the foreclosure had to be asserted as a compulsory counterclaim or it becomes barred by res judicata. See Calhoun First Nat. Bank v. Dickens, 264 Ga. 285, 286 (1) (443 SE2d 837) (1994); Williams v. South Central Farm Credit, ACA, 215 Ga. App. 740, 742 (2) (452 SE2d 148) (1994). “The purchaser at a foreclosure sale under a power of sale in a security deed is the sole owner of the property until and unless the sale is set aside. It is not germane to a dispossessory proceeding to allege that a contract under which the plaintiff claims to derive title from the defendant is void and should be canceled. If the sale of the premises under the power of sale in the loan deed was void on account of its improper exercise, or because the loan was not mature, this could not be set up as a defense to a dispossessory proceeding under the former Code Ann. §§ 61-301, 61-303 (now OCGA §§ 44-7-50; 44-7-53). A tenant can not dispute the title of his landlord. [In this case,] the relation of landlord and tenant did exist between the plaintiffs and the defendants in the form of a tenancy at sufferance. This principle is applicable in a dispossessory proceeding by the grantee in a security deed against the grantor or his heirs or assigns in possession, after the property has been sold under the deed and purchased by the grantee.” (Citations and punctuation omitted.) Womack v. Columbus Rentals, 223 Ga. App. 501, 503-504 (3) (478 SE2d 611) (1996); see also Dodson v. Farm & Home Savings Assn., 208 Ga. App. 568, 569 (430 SE2d 880) (1993); Hague v. Kennedy, 205 Ga. App. 586, 588 (423 SE2d 283) (1992).

(b) Bellamy raised in the counterclaim some of the grounds that were sought to be raised again after the appeal. The grant of the summary judgment based upon RTC’s motion to dismiss all the counterclaims resulted in an adjudication on the merits of all grounds raised or that could be raised by counterclaim. Bellamy’s failure to raise such issues in the enumerations of error acted as a waiver, so that the judgment of the Supreme Court barred such counterclaim to set aside the foreclosure for defects.

(c) Bellamy asserted such new theories as to the alleged defective foreclosure after remittitur; such new theories constituted additional grounds for Count 1 of the compulsory counterclaim and, thus, were new counterclaims which were barred under OCGA § 9-11-13 (a), (f). However, the record does not show leave was obtained from the trial court to raise such additional grounds on counterclaim, and such new counterclaims were subject to dismissal as a matter of law.

See Cornelius v. Auto Analyst, 222 Ga. App. 759, 762 (3) (476 SE2d 9) (1996); Conerly v. First Nat. Bank, 209 Ga. App. 601, 603-604 (3) (434 SE2d 143) (1993); Eudaly v. Valmet Automation (USA), 201 Ga. App. 497, 498 (1) (411 SE2d 311) (1991). On February 12, 1998, Bellamy could not again raise issues as to defective foreclosure and the deed into RTC, because the trial court’s grant of summary judgment as to Bellamy’s counterclaim had been affirmed by the Supreme Court, which barred further counterclaim. Such issues could not now be raised as a defense to dispossession and constituted final adjudication and binding precedent that prevents Bellamy’s relitigation of such issues. See OCGA § 9-11-60 (h); Bellamy v. Resolution Trust Corp., supra; Jebco Ventures v. City of Smyrna, 259 Ga. 599, 601-602 (1) (385 SE2d 397) (1989); Faircloth v. A. L. Williams & Assoc., 219 Ga. App. 560, 561 (2) (465 SE2d 722) (1995).

Case No. A99A0197

On December 19, 1995, the trial court entered an order compelling Bellamy to pay rent into the court for RTC. On June 4, 1996, the judgment on remittitur was entered. On June 7, 1996, Bellamy filed a notice of lis pendens against the property. On August 7,1996, FDIC was substituted into the case for RTC. In November 1996, Bellamy stopped paying rent.

On January 6,1998, FDIC filed its motion for Writ of Possession, Disbursement of Rents Paid, and Removal of Lis Pendens. The trial court granted the motion, but vacated it to allow Bellamy a hearing on February 4, 1998 after motion by Bellamy. The February 4, 1998 hearing was not an evidentiary hearing. OCGA § 9-11-43 (b). At the hearing, Bellamy’s counsel admitted in judicio that no rent had been paid since November 1996.

On February 12, 1998, the trial court (1) ordered a writ of possession in favor of FDIC; (2) ruled upon all issues pending in favor of FDIC, including possession, demand, removal of lis pendens, and disbursement to FDIC; and (3) ruled that any appeal by Bellamy was for the purpose of delay. On February 20, 1998, Bellamy filed the notice of appeal.

1. Bellamy asserts that the trial court erred by ordering Bellamy to pay rent into the trial court and by granting FDIC a writ of possession when Bellamy stopped paying. We do not agree.

After foreclosure sale, the former owner cannot attack dispossession without first setting aside the foreclosure and deed. Womack v. Columbus Rentals, supra at 503-504. Where former owners of real property remain in possession after a foreclosure sale, they become tenants at sufferance. Frank v. Fleet Finance, 227 Ga. App. 543, 547 (1) (c) (489 SE2d 523) (1997); Hyman v. Leathers, 168 Ga. App. 112, 114 (2) (308 SE2d 388) (1983).

In this case, from January 1996, Bellamy remained tenants at sufferance. As tenants at sufferance, they were subject to being summarily dispossessed by the purchaser at foreclosure sale. See Browning v. Fed. Home Loan Mtg. Corp., 210 Ga. App. 115, 117 (3) (435 SE2d 450) (1993); see also Hyman v. Leathers, supra at 114.

OCGA § 44-7-56 provides that, pending an appeal the trial court may require payment of rent into the registry of the court, even if the relationship as tenants at sufferance has not been decided by the court. See Thomas v. Wells Fargo Credit Corp., 200 Ga. App. 592, 594 (5) (409 SE2d 71) (1991); Hyman v. Leathers, supra at 113; Williams v. Durham, 77 Ga. App. 840, 841-842 (50 SE2d 373) (1948). The amount of rent is the reasonable rental value if no prior rent had been established and, upon failure to pay, the landlord is entitled to an immediate writ of possession. Hall v. VNB Mtg. Corp., 170 Ga. App. 867 (318 SE2d 674) (1984); Bible v. Allday, 93 Ga. App. 231 (2) (91 SE2d 306) (1956). Bellamy failed to pay rent after November 1996. Accordingly, there was no error.

2. Bellamy contends that the trial court erred in ruling that all issues in the case had been disposed of in the prior appeal. We do not agree.

Bellamy v. Resolution Trust Corp., supra at 631, disposed of most of the issues of the case, including notice under OCGA § 44-14-162 et seq., validity of foreclosure, and fraud in obtaining the deed to secure debt. Res judicata or the law of the case doctrine precludes the relitigation of such issues. See OCGA §§ 9-12-40; 9-11-60 (h); Sorrells Constr. Co. v. Chandler Armentrout & Roebuck, P. C., 214 Ga. App. 193, 194 (447 SE2d 101) (1994).

Demand for possession under OCGA § 44-7-50 was determined adversely to Bellamy in the February 12, 1998 order. The trial court ruled, “[g]iven the history of litigation of this case, including the foreclosure sale, it’s almost laughable to believe the defendants do not have notice that the plaintiffs are demanding possession of the property.” Thus, on February 12, 1998, all remaining issues were decided by the trial judge; the prior appeal determined the other issues. This enumeration lacks merit.

3. Bellamy next claims that the trial court erred in ruling that a demand was not required prior to the filing of the dispossessory action. We do not agree.

The trial court ruled that the demand for possession was properly made by the plaintiffs. See Division 2. Thus, this enumeration is without merit.

4. Bellamy asserts that the trial court erred in granting summary judgment to FDIC. We do not agree.

Bellamy contends that the trial court adjudicated the remaining issues on summary judgment, but concedes that FDIC never moved for summary judgment. See OCGA § 9-11-56. Most of the issues raised by Bellamy were barred by res judicata or law of the case by the prior appeal adverse to Bellamy as to foreclosure, notice, and defective advertisement. Bellamy v. Resolution Trust Corp., supra at 631. The trial court at a non-jury hearing correctly decided the remaining issues against Bellamy.

(a) As a tenant at sufferance under a foreclosure deed, Bellamy was subject to summary dispossession. Browning v. Fed. Home Loan Mtg. Corp., supra at 117. Bellamy failed to pay the rent as ordered by the trial court, which non-payment was admitted. As a tenant at sufferance, Bellamy could not attack RTC’s title as his landlord in a dispossession action. Womack v. Columbus Rentals, supra at 503-504.

(b) Under OCGA §§ 44-7-54 and 44-7-56, FDIC was entitled to the funds held in the registry of the trial court. Failure to pay rent into court entitles the property owner to an immediate writ of possession and disbursement of funds as a non-jury matter. OCGA § 44-7-54 (b), (c). Issuance of such writ of possession is a non-jury matter where the tenant at sufferance fails to pay court-ordered rent into court. Mitchell v. Excelsior Sales &c., 243 Ga. 813, 815-816 (2) (256 SE2d 785) (1979). Where the property owner makes no claim for damages beyond the rent ordered paid by the court and the tenant fails to pay, the issuance of the writ of possession constitutes a final judgment. Diplomat Restaurant v. Anthony, 180 Ga. App. 431 (349 SE2d 284) (1986).

Under OCGA § 44-7-54 (c), determination of any dispute as to the funds paid into the registry of the court shall be “a determination of the issues by the trial court. If either party appeals the decision of the trial court, that part of the funds equal to any sums found by the trial court to be due from the landlord to the tenant shall remain in the registry of the court until a final determination of the issues. The court shall order the clerk to pay the landlord without delay the remaining funds in court and all payments of future rent made into court. . . .” Ga. L. 1988, p. 923, § 2; Ga. L. 1998, p. 1380, § 2.

In this case, Bellamy v. Resolution Trust Corp., supra at 631, by determining that the RTC had title by foreclosure, also determined that RTC and its assigns were entitled to all funds paid into the trial court as rent. Thus, in ordering the disbursement of funds on February 12, 1998, the trial court decided a non-jury legal issue, because Bellamy no longer had a valid claim to the fimds.

(c) Any ownership interest that Bellamy had in the property was extinguished by the foreclosure and sale; the validity of the foreclosure is res judicata or law of the case as to Bellamy. Bellamy v. Resolution Trust Corp., supra at 631. Under power of sale contained in the deed to secure debt, RTC obtained complete legal title by purchase at foreclosure, which it assigned to FDIC. Thus, the lis pendens was void and subject to removal by the trial court after judgment of the Supreme Court was entered in the trial court. See OCGA § 44-14-612; Panfel v. Boyd, 187 Ga. App. 639, 646-647 (4) (371 SE2d 222) (1988).

(d) As determined in Division 2, the trial judge ruled as a matter of law on undisputed facts and determined under Bellamy v. Resolution Trust Corp., supra, that OCGA § 44-7-50 (a) “demand for possession of the property,” had been satisfied, which was a non-jury determination of a mixed question of law and fact. See Green Room v. Confederation Life Ins. Co., 215 Ga. App. 221, 222 (1) (450 SE2d 290) (1994); see also Burns v. Reves, 217 Ga. App. 316, 318 (2) (457 SE2d 178) (1995); Sandifer v. Long Investors, 211 Ga. App. 757, 758-759 (1) (b) (440 SE2d 479) (1994).

After the hearing, the trial court adjudicated these remaining issues of undisputed fact against Bellamy as a matter of law. However, this was not a motion for summary judgment under OCGA § 9-11-56, as erroneously characterized by Bellamy. Under OCGA § 44-14-612, since Bellamy v. Resolution Trust Corp., supra at 631, was a final adjudication on the merits of the lis pendens, then the order to the clerk to cancel and remove the lis pendens was not a matter for jury trial; however, the order to the clerk should have instructed the clerk to mark the notice of lis pendens “final judgment for the defendant and against the plaintiff” and give the book and page in the docket where such final order or judgment is recorded in the docket book. See OCGA § 44-14-612; Snow’s Farming Enterprises v. Carver State Bank, 206 Ga. App. 661, 662 (3) (426 SE2d 158) (1992), rev’d on other grounds, Vance v. Lomas Mtg. USA, 263 Ga. 33, 36, n. 5 (426 SE2d 873) (1993). “OCGA § 44-14-612 now directs the clerk to indicate on the face of the recorded lis pendens notice a dismissal, settlement, or final judgment entered in the underlying action and the book and page in the records where such final order or judgment is to be found. The statute does not address the status of a recorded lis pendens notice on which no such indication regarding a dismissal, settlement, or final judgment entered in the underlying action is made, notwithstanding that such an entry should have been made pursuant to the statute.” Vance v. Lomas Mtg. USA, supra at 36. The reason that the notice for lis pendens is now marked on the face of the notice as to disposition rather than physically canceled or removed is that the judgment in the underlying action may be set aside, new trial granted, or appealed so that the action could be revived later and the notice of lis pendens still provide warning to potential purchasers. Vance v. Lomas Mtg. USA, supra at 36; Land Dev. Corp. v. Union Trust Co., 180 Ga. 785, 789 (180 SE 836) (1935). Since on June 4, 1996, the judgment in the underlying action in this case was final on remittitur in Bellamy v. Resolution Trust Corp., supra, then the trial court’s order was harmless error. Vance v. Lomas Mtg. USA, supra at 36. Thus, this enumeration of error lacks merit.

Decided February 19, 1999

Reconsideration denied March 3, 1999

Michael Kessler, for appellants.

Miller & Martin, William A. DuPre IV, Glass, McCullough, Sherrill & Harrold, Michael A. Kaeding, Charles W. Ingraham, Shannon L. Nagle, for appellee.

Judgment affirmed.

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

       While the effective date of Ga. L. 1998, p. 1380 was July 1, 1998, this Code section is procedural only and does not affect substantive rights. See OCGA § 1-3-5; Focht v. American Cas. Co., 103 Ga. App. 138 (118 SE2d 737) (1961). Thus, it has retroactive effect. Even if it could not be applied retroactively, it assists in interpreting the intent of the General Assembly regarding this section. See Porquez v. Washington, 268 Ga. 649, 652 (1) (492 SE2d 665) (1997). Thus, under Ga. L. 1988, p. 923, “determination of the issues” refers to the trial court and not a jury.


author: Andrews, Judge.

text:
    A98A2061.
    DOVE v. SENTRY INSURANCE.
    (513 SE2d 289)
   Andrews, Judge.

Martin Dove was injured on the job and Sentry, his employer’s workers’ compensation carrier, paid benefits and medical bills as a result of the injury. Dove continued to experience various symptoms and his doctors recommended additional testing, which Sentry refused to approve. Four months after the injury, Dove committed suicide by prescription drug overdose.

Dove’s widow, Martha, claimed Sentry was responsible for causing Martin to take a drug overdose because it refused necessary medical treatments. Sentry maintained that because Martin’s death was self-inflicted, it was not liable to pay death benefits. See OCGA § 34-9-17 (a) (no compensation for self-inflicted injury). Martha maintained that there was no proof that Martin had intentionally killed himself. The parties finally agreed to settle their differences by entering into a Stipulation and Agreement, whereby Sentry paid Martha and the minor children $50,001 in settlement of any and all claims. The agreement was approved by the State Board of Workers’ Compensation, as required by OCGA § 34-9-15.

Martha Dove then filed suit against Sentry for wrongful death, pain and suffering, and punitive damages, alleging Sentry committed “intentional torts . . . outside the purview of the Workers’ Compensation Act” in refusing to authorize medical treatment for Martin. The suit named all of Martin’s children as plaintiffs, including Regan Dove, who was not a party to the OCGA § 34-9-15 settlement agreement because, as a nondependent adult, he was not entitled to death benefits under the Workers’ Compensation Act. See OCGA § 34-9-13.

The trial court granted Sentry’s motion for summary judgment, finding that the suit was barred by the settlement agreement. This Court affirmed in an unpublished opinion. Martha Dove filed a motion for reconsideration, reiterating that Regan was not a party to the settlement. This Court then added language to its original opinion, as follows: “There can be no dispute that this language estops and precludes appellant from filing this lawsuit. Obviously it does not bar suit by one who has a claim or cause of action but was not a party to the settlement.”

Martha Dove then went back to the trial court and asserted the case remained pending in light of the language added by this Court on reconsideration, and she asked to be allowed to recast the complaint to reflect Regan Dove’s cause of action. The trial court denied her motion and refused to re-open the case. She appeals.

Regan’s only possible claim against Sentry is wrongful death, which must be brought by Martha, the surviving spouse of Martin. See OCGA § 51-4-2. As suggested in the earlier unpublished opinion, a wrongful death suit by Martha Dove on behalf of Regan is not barred on account of the settlement agreement entered into by Martha, since Regan was not a party to the settlement agreement in any capacity, and Martha did not represent his interest or sign the agreement on his behalf. See Matthews v. Douberley, 207 Ga. App. 578 (428 SE2d 588) (1993) (child’s right of recovery under wrongful death statute is independent of surviving spouse’s).

However, a compensable injury under the Act is defined as one “arising out of and in the course of the employment.” OCGA § 34-9-1 (4). Regan, as one of Martin’s “next of kin,” has no claim if Martin’s injury and death arose out of and in the course of his employment, since any such claim is barred by the exclusive remedy provision of the Act, OCGA § 34-9-11 (a), which provides in pertinent part: “The rights and the remedies granted to an employee by [the Act] shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death.” (Emphasis supplied.) “The exclusive remedy provision of the workers’ compensation law, by its express terms, applies [whether the employee is injured or killed], ‘supplanting the common law with an absolute liability of an employer, and fixed entitlements for an employee and “his personal representative, parents, dependents, or next of kin, at common law or otherwise.” [OCGA § 34:9-ll (a).]’ [Cit.]” Smith v. Gortman, 261 Ga. 206, 207 (403 SE2d 41) (1991).

Only if Martin’s death falls outside the purview of the Act would Regan have a separate common law cause of action for the wrongful death of his father, specifically, if the death were caused by fraud or other intentional tort committed by the employer or its insurer, and then only if “the tortious 'act [was] not an accident arising out of and in the course of employment and where a reasonable remedy for such conduct is not provided by the Workers’ Compensation Act.’ [Cit.]” Potts v. UAP-GA. AG CHEM., 270 Ga. 14, 16 (506 SE2d 101) (1998). The gravamen of Martha Dove’s wrongful death action is Sentry’s refusal to authorize medical treatment for Martin. In Doss v. Food Lion, 267 Ga. 312, 313 (1) (477 SE2d 577) (1996), the Supreme Court held that when an employee’s initial injury is made worse by the employer’s intentional delay in authorizing treatment, no independent cause of action arises from the intentional delay, since such delay exacerbates a work-related physical injury. Accordingly, under the reasoning of Doss, Martha Dove’s wrongful death action on behalf of Regan is barred. See also Dutton v. Ga. Associated Gen. Contractor &c. Trust Fund, 215 Ga. App. 607 (451 SE2d 504) (1994).

Martha Dove maintains Doss is distinguishable because it involved an employee who was covered under the Act. Here, she argues, Regán, as a nondependent child of the employee, was not covered by the Act. This argument, however, ignores the exclusive remedy requirement discussed above. Moreover, Martin Dove had no independent tort claim against his employer because Doss does not permit such a claim for an employer’s intentional delay in authorizing treatment; and his wife, on behalf of their nondependent child Regan, has no claim for wrongful death, since that claim is derivative from Martin Dove’s right. Accord Henderson v. Hercules, 253 Ga. 685 (324 SE2d 453) (1985) (The legislative intent of the Act “was to bring the entire family group within its coverage,” so that “if a wife’s injury is covered by workers’ compensation, her husband’s common law action for loss of consortium is barred.”). Cf. Hitachi Chem. Electro-Products v. Gurley, 219 Ga. App. 675 (466 SE2d 867) (1995) (physical precedent only) (claims of minor children injured in útero by exposure of employees to hazardous and dangerous chemicals were not derivative of any work-related claim that could be asserted by the parent/employees against Hitachi and were thus outside the purview of Workers’ Compensation Act and not subject to its exclusive remedy rule).

For the foregoing reasons, the judgment of the superior court is hereby affirmed.

Judgment affirmed.

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

Decided March 3, 1999

A. Russell Blank, for appellant.

Richter, Head & Shinall, James W. Richter, for appellee.


text:
    A98A2446.
    TODD v. THE STATE.
    (513 SE2d 287)
   Ruffin, Judge.

On January 7, 1994, Thomas Todd pled guilty to seven counts of burglary and to possession of a firearm by a convicted felon. The trial court sentenced Todd to twelve years on probation for the burglary charges and five years on probation for the possession of the firearm charge, to be served concurrently. On June 2, 1997, the trial court revoked Todd’s probation because, while on probation, he had been found guilty of assault and battery and burglary in South Carolina. In February 1998, Todd, proceeding pro se, filed a “Motion to Correct Sentencing Errors and Evidentiary Hearing” claiming, inter alia, that the sentence imposed pursuant to his probation revocation was void and that the trial court should have considered alternative sentencing. Todd appeals the trial court’s denial of his motion. For reasons which follow, we dismiss Todd’s appeal.

Although Todd purportedly challenges the denial of his motion to correct sentencing errors, it is apparent that the underlying subject matter of his appeal is the revocation of his probation. In his first enumeration of error, Todd claims that, upon revoking his probation, the trial court erred in failing to exercise “its broad authority to correct or modify an illegal and erroneous sentence.” According to Todd, the trial court should have imposed a sentence of two years or less pursuant to OCGA § 42-8-34.1 (b). In his second enumeration of error, Todd reiterates his complaint that the trial court erred in failing to sentence him pursuant to OCGA § 42-8-34.1 (b) and also claims the trial court should have considered alternative sentencing pursuant to this Code section. In his third enumeration of error, Todd contends that the trial court failed to notify him of his right to appeal. To correct the alleged omission, Todd asks this Court to order “appellant’s sentence to fit the OCGA § 42-8-34.1 (b), two years or less provisions.” In his final enumeration of error, Todd questions the trial court’s jurisdiction to revoke his probation.

Decided March 3, 1999.

Thomas P. Todd, pro se.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

With the exception of his jurisdiction argument, Todd’s sole complaint is that, upon revoking his probation, the trial court erred in failing to impose a sentence of two years or less pursuant to OCGA § 42-8-34.1 (b). Thus, the underlying subject matter of Todd’s appeal is the sentence imposed following the revocation of his probation. We note that it is “the underlying subject matter [that] determines which appellate procedure is required.” White v. State, 233 Ga. App. 873, 874 (505 SE2d 228) (1998). Pursuant to OCGA § 5-6-35 (a) (5) & (d), appeals from orders revoking probation are discretionary and require that an application be filed with the clerk of the appropriate court within 30 days of the date of the revocation order.

“A party should review the discretionary application statute to see if it covers the underlying subject matter of the appeal. If it does, then the party must file an application for appeal as provided under OCGA § 5-6-35. This approach fulfills the legislature’s intent to give appellate courts more discretion in managing their caseload. Otherwise, any party could avoid the discretionary review procedure by seeking relief, however inappropriate, that would trigger the right to a direct appeal. This Court has refused to treat a direct appeal as an application, even where requested.” (Citation and punctuation omitted.) White, supra. Since Todd failed to file an application for discretionary appeal, we do not have jurisdiction to address his grievances. See Scriven v. State, 179 Ga. App. 513-514 (346 SE2d 906) (1986).

Appeal dismissed.

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

       Todd’s jurisdiction argument is entirely specious. It is undisputed that the revocation proceeding took place in a court that had original jurisdiction over the criminal proceeding. OCGA § 42-8-34 (a).

       Todd does not contest the original sentences imposed following his guilty plea. Moreover, we note that neither the twelve year sentence for burglary nor the five year sentence for possession of a firearm by a convicted felon was void. OCGA §§ 16-7-1; 16-11-131 (b).


text:
    A98A2448.
    STEPHENS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (513 SE2d 508)
   Johnson, Chief Judge.

Lisa Kay Stephens was involved in an automobile accident. She filed an action in the State Court of Rockdale County against the driver of the van, Carol Carver Hudson, and the church that owned the van and employed Hudson. The van was insured by State Farm Mutual Automobile Insurance Company under a policy with a $50,000 liability limit.

Following a nonjury trial in Rockdale County, the trial court entered an order dismissing Hudson based on charitable immunity. In a somewhat confusing order, the trial court found for Stephens against the church, but recognized and declared applicable the charitable immunity doctrine as to the church. The trial court correctly held that the church waived charitable immunity to the extent of any applicable liability coverage. Therefore, in its judgment, the trial court awarded Stephens “the lesser of $425,000 or the amount of liability insurance benefits applicable.” The trial court specifically noted in the judgment that “[t]his Court makes no finding and expresses no opinion as to the existence or availability of liability insurance coverage, or the amount thereof.” Stephens subsequently received the $50,000 policy liability limit.

In this DeKalb County action, Stephens attempts to collect an additional amount from the church, alleging that the van was insured as an additional vehicle under a separate policy issued to the church with liability limits of $500,000. She alternatively alleges that if the van was not included under this separate policy as an additional vehicle, it was only due to the negligence of State Farm’s agent in causing the van to be listed on the wrong insurance policy. The trial court granted State Farm’s motion for summary judgment, and Stephens appeals. We affirm.

1. It is axiomatic that a grant of summary judgment must be affirmed if it is right for any reason. See Coffey v. Brooks County, 231 Ga. App. 886, 891-892 (2) (d) (500 SE2d 341) (1998). In the present case, the trial court granted summary judgment based on the alternative grounds that the underlying Rockdale County State Court judgment was conditional, that the instant action was barred by collateral estoppel, and that there was no privity of contract between Stephens and State Farm. We need look no further than the underlying Rockdale County judgment to determine that this is a conditional judgment and that the trial court correctly granted State Farm’s motion for summary judgment in the DeKalb County action.

Georgia law requires that every judgment must be certain and definite as to its amount. Hutcheson v. Hutcheson, 197 Ga. 603, 604 (30 SE2d 107) (1944). In Hutcheson, the Supreme Court found that a judgment in an amount not to exceed an allotment made or in an amount to which the husband was entitled was “incomplete, ineffective, and may be termed an inchoate judgment.” Id.

In the present case, as in Hutcheson, the Rockdale County trial court entered a judgment for “the lesser of $425,000 or the amount of liability insurance benefits applicable.” However, the trial court specifically stated that it was not making any finding as to the existence or availability of liability insurance coverage. Without such a finding, there is no way for the clerk of the court to enter judgment for the prevailing party “to the extent of available liability insurance if any applicable to the incident giving rise to the litigation.” Such a judgment is incomplete and ineffective.

Decided March 3, 1999.

Hughes & Kaplan, Robert W. Hughes, Jr., for appellant.

Harper, Waldon & Craig, Thomas D. Harper, for appellee.

Despite the fact that the existence and amount of liability insurance available is an essential issue of a charitable immunity case (Morehouse College v. Russell, 219 Ga. 717 (135 SE2d 432) (1964)), the Rockdale County trial court mistakenly concluded that it could not determine the existence or availability of liability insurance. In fact, the trial court expressly refused to rule on issues concerning the availability of liability insurance coverage for fear that an insurance policy covering this accident might be discovered after its ruling. However, it was the duty of the Rockdale County court to have an evidentiary hearing and make a determination regarding the existence and amount of liability insurance which applies. It is Stephens’ burden to prove the existence and amount of liability insurance coverage possessed by the church or by Hudson. See Cutts v. FultonDeKalb Hosp. Auth., 192 Ga. App. 517, 518 (1) (385 SE2d 436) (1989). Any calculation of the amount of judgment necessitates resolution of the issues which the Rockdale County court refused to determine. Since no such decision has been made, the Rockdale County judgment is not final. Davis v. Transairco, 141 Ga. App. 544, 545 (1) (234 SE2d 134) (1977). The action in DeKalb County is, at best, premature, and the trial court properly granted State Farm’s motion for summary judgment.

2. Based on our holding in Division 1, Stephens’ remaining enumerations of error are rendered moot.

Judgment affirmed.

Smith and Barnes, JJ, concur.


author: Judge Harold R. Banke.

text:
    A99A0039.
    AKINTOBI et al. v. PHOENIX FIRE RESTORATION COMPANY, INC.
    (513 SE2d 507)
   Judge Harold R. Banke.

Phoenix Fire Restoration Company, Inc. (“Phoenix”) sued M. O. Akintobi and Dolly Akintobi (collectively “Akintobi”) for breach of contract. Phoenix sought damages for unpaid invoices, consequential damages, and attorney fees. In a counterclaim, Akintobi, inter alia, sought attorney fees. After the parties consented to binding arbitration, both sides requested attorney fees. The arbitrator found solely in favor of Phoenix and awarded it $72,498.76 which included $24,575.60 in attorney fees. Under OCGA § 9-9-13 (b) (4), Akintobi applied to vacate the arbitrator’s award claiming that the parties did not agree to arbitrate the issue of attorney fees. After determining that the fees issue was properly before the arbitrator, the court denied Akintobi’s motion, and subsequently confirmed the arbitration award. Held:

Akintobi’s sole enumeration of error is that the trial court erred in confirming the arbitration award because neither the written contract nor the parties’ arbitration agreement expressly provided for the recovery of attorney fees.

OCGA § 9-9-13 (b) sets forth the exclusive grounds upon which an arbitration award may be vacated. Greene v. Hundley, 266 Ga. 592, 595-596 (3) (468 SE2d 350) (1996). The Georgia Arbitration Code requires a trial court to confirm an award upon timely application by a party, unless one of the statutory grounds for vacating or modifying the award is established. Haddon v. Shaheen & Co., 231 Ga. App. 596-597 (1) (499 SE2d 693) (1998). “[T]he power of a court to vacate an arbitration award has been severely limited in order not to frustrate the legislative purpose of avoiding litigation by resort to arbitration.” (Emphasis in original.) Id.

Here, nothing on the face of the arbitration award including the award of attorney fees appears to be the result of corruption, fraud, or misconduct. Greene, 266 Ga. at 596. Nor does the award evince any partiality or overstepping by the arbitrator. Gilbert v. Montlick, 232 Ga. App. 91, 93 (2) (499 SE2d 731) (1998). In fact, although no contract provided for attorney fees, the record demonstrates that both sides vigorously pursued such fees before the arbitrator. Not only did Akintobi fail to object to the evidence of Phoenix’s attorney fees at arbitration, Akintobi submitted its own evidence of attorney fees. In so doing, Phoenix and Akintobi implicitly agreed to arbitrate that issue. See Hope & Assoc. v. Marvin M. Black Co., 205 Ga. App. 561, 562 (1) (422 SE2d 918) (1992). Inasmuch as Akintobi failed to sustain its burden of showing that the arbitrator’s decision was “completely irrational” or constituted a “manifest disregard of the law,” it must be upheld. Amerispec Franchise v. Cross, 215 Ga. App. 669, 671 (1) (452 SE2d 188) (1997); OCGA § 9-9-13 (b).

Judgment affirmed.

Smith and Eldridge, JJ., concur.

Decided March 3, 1999

Bowman S. Garrett, Jr., for appellants.

Greenfield, Bost & Kliros, William L. Bost, Jr., Thad C. Gould, Hawkins & Parnell, Jeb T. Branham, Matthew F. Barr, Warner S. Fox, for appellee.