text:
    A92A0686.
    TAYLOR v. THE STATE.
    (421 SE2d 104)
   Pope, Judge.

Defendant Charlotte F. Taylor was tried before a jury in state court and convicted of speeding. She appeals.

1. Defendant, appearing pro se, first argues the trial court erred in admitting evidence of speed obtained by a radar detection device because the State did not present evidence of each of the conditions imposed by OCGA § 40-14-1 et seq. for the admission of such evidence. Failure of proof as to any one of the conditions imposed by law for the admissibility of evidence of speed gained from a speed detection device results in such evidence being inadmissible. Wiggins v. State, 249 Ga. 302 (2a) (290 SE2d 427) (1982). A review of the record shows no evidence was presented to establish that the vehicle in which the detection device was operated in the case at hand was visible to approaching motorists for a distance of at least 500 feet, as required by OCGA § 40-14-7. “Contrary to the State’s contention, [defendant’s] failure to interpose a timely objection on this basis at trial does not preclude [her] from raising this issue on appeal, for this court has held that establishment of the necessary foundation for radar detection device speed evidence is a prerequisite to admissibility even in the absence of an objection. Johnson v. State, 189 Ga. App. 192, 193 (375 SE2d 290) (1988). But see Gray v. State, 156 Ga. App. 117, 118 (1) (274 SE2d 115) (1980).” Brown v. State, 204 Ga. App. 629 (420 SE2d 35) (1992). As in Brown, however, the officer who issued the citation testified he observed the defendant driving, in his opinion, at a speed in excess of the speed limit. Thus, even though the radar evidence was improperly admitted, the error does not require reversal because the evidence was otherwise sufficient to authorize defendant’s conviction. See Brown, id.

2. The trial court did not err in prosecuting the case even though the traffic citation issued to defendant was not placed in evidence because the case was tried upon an accusation, not the uniform traffic citation. See Burks v. State, 195 Ga. App. 516 (1b) (394 SE2d 136) (1990).

3. The State presented evidence of other similar acts of speeding committed by defendant. Defendant argues the evidence was inadmissible because some of the acts occurred over four years before the date of trial whereas OCGA § 40-13-59 permits the recording of traffic violations for up to a period of four years. The statute cited by defendant refers only to the recording of the defendant’s driving record by the traffic violations bureau of the court. It in no way prohibits the State from presenting evidence of independent similar acts of the defendant. The evidence at issue met the requirements for admission of other independent crimes or acts committed by the defendant for the purpose of showing identity, motive, plan, scheme, bent of mind and/ or course of conduct. See Chastain v. State, 260 Ga. 789 (3) (400 SE2d 329) (1991). “[T]he remoteness of time factor is one that goes to the weight and credibility the jury gives to the evidence [of independent acts], and not to its admissibility.” McLendon v. State, 184 Ga. App. 332, 333 (2) (361 SE2d 534) (1987). The trial court did not err in admitting the evidence of similar acts.

Decided July 1, 1992

Reconsideration denied July 21, 1992

Charlotte F. Taylor, pro se.

Andrew Prather II, Solicitor, Maureen M. Callahan, Assistant Solicitor, for appellee.

4. Defendant argues the trial court erred in refusing to admit in evidence a copy of her driving record from the Department of Public Safety. The record contains no ruling by the trial court that the document was inadmissible; instead the record shows only that the court ruled the police officer whom defendant attempted to question concerning the contents of the report was not qualified to give such testimony. The trial court did not err in making such a ruling since the officer testified he was unfamiliar with the report.

5. We reject defendant’s argument that the prosecution of this case was improper and exposed her to “possible double jeopardy” because, pursuant to OCGA § 40-6-376 (a), she could be prosecuted for speeding under either state law or local ordinance. The record shows she was tried pursuant to an accusation of violation of state law. While she could raise the defense of double jeopardy to any future attempt to prosecute her for the same act pursuant to local ordinance, that issue is not present in this case because no evidence was presented that defendant was previously prosecuted for violation of local ordinance arising out of the act of speeding at issue in this case.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A92A0757, A92A0758.
    RAY v. ATKINS; and vice versa.
    (421 SE2d 317)
   Andrews, Judge.

Alice Atkins sued Patricia Ray, Ronald Graham, and Donna Graham (her sister, brother, and sister-in-law, respectively) in Catoosa County claiming that Ray and the Grahams fraudulently conspired to foreclose on a first priority debt deed to extinguish her rights in certain real properly located in Catoosa County, and seeking to set aside the foreclosure deed. This suit, naming Ray as a co-defendant, was consolidated for trial before a jury with a prior suit in which Atkins sued only the Grahams to seek a determination of her interest in the same property. Based on the jury verdict, judgment was entered determining Atkins’ interest in the property, awarding damages against Ray and the Grahams for fraud, and setting aside the foreclosure deed. Ray appeals from the verdict and judgment in Case No. A92A0757, and Atkins cross-appeals in Case No. A92A0758.

With the aid of money loaned by Atkins for a down payment, Ronald Graham purchased the property at issue in 1984. The property was conveyed by warranty deed from Austin to Ronald Graham with Graham giving Austin a note for $43,000 and a first priority debt deed over the property. In July 1987, pursuant to another loan to Ronald Graham, Atkins received a $25,000 promissory note from Graham and his wife, Donna, secured by a mortgage over the property second in priority to Austin’s 1984 debt deed. The Grahams subsequently forged and recorded an instrument giving notice that the $25,000 mortgage had been paid. No payment had been made on it, and Atkins later recorded an instrument refuting the satisfaction notice. On July 31, 1987, Ronald Graham executed a warranty deed to the property to his brother, William Graham. This warranty deed was delivered to Ray, who later recorded it on May 31, 1989. On June 16, 1989, William Graham executed a warranty deed to the property to Atkins, who recorded it on June 19, 1989. The Grahams continued to use the property as their residence, and Ronald Graham continued to be responsible under and make the payments on the indebtedness evidenced by the 1984 note and debt deed. On June 29, 1989, Atkins sued the Grahams seeking a determination of her rights and interest in the property, or in the alternative to foreclose on the 1987 mortgage. Events occurring after the first suit was filed prompted Atkins to file a second suit on December 12, 1989, alleging that Ray had fraudulently conspired with the Grahams to destroy her interest in the property. On September 7, 1989, Austin assigned the 1984 note and debt deed to Ray for $12,700, the approximate amount remaining due on the note. After the Grahams failed to make the October and November payments on the 1984 note, Ray instituted non-judicial foreclosure proceedings under the terms of the debt deed, purchased the property at the public foreclosure sale for $14,183.20, and recorded the foreclosure deed to herself on December 5, 1989.

After a trial of both suits, the jury concluded: (1) that the promissory note from the Grahams to Atkins was a valid debt in the amount of $25,000 plus interest; (2) that the warranty deeds from Ronald Graham to William Graham, and from William Graham to Atkins were valid instruments; (3) that notice was properly given by Ray in the foreclosure sale; (4) that the foreclosure deed be set aside because of fraud, and (5) that damages be awarded against Ray and the Grahams on Atkins’ fraud claim.

1. First, we address the status of Atkins’ interest in the property at the time of the foreclosure. The 1987 instrument from the Grahams to Atkins was sufficient to qualify as a mortgage creating a lien over the property, but conveying no title to Atkins. Cherokee Ins. Co. v. Gravitt, 187 Ga. App. 179, 182-183 (369 SE2d 779) (1988); OCGA § 44-14-30. Although the instrument was not in a typical mortgage form, no particular form is necessary to constitute a mortgage as long as the instrument clearly indicates, as this one does, the creation of a lien, and specifies the debt for which it is given, and the property upon which it is to take effect. OCGA § 44-14-31. Subsequently, on June 19, 1989, by virtue of a warranty deed from William Graham, Atkins obtained the equitable title to the property which William Graham had earlier obtained by warranty deed from Ronald Graham. Legal title remained with the holder of the 1984 first debt deed securing the unpaid note.

These transfers did not result in a merger of interests extinguishing the Atkins mortgage. “[U]nless the contrary intent is clearly shown, the acquisition of the equity of redemption by a mortgagee will not bring about a merger if the continued existence of the mortgage is necessary to protect against intervening liens. . . . [T]he doctrine of merger is designed primarily for the benefit of one who acquires an interest in property greater than he possessed in the first instance and will not be held to apply against his will to his disadvantage.” (Punctuation and citations omitted.) Barron Buick v. Kennesaw Fin. Co., 105 Ga. App. 451, 455 (124 SE2d 918) (1962); Seaboard Air-Line R. Co. v. Holliday, 165 Ga. 200, 204 (140 SE 507) (1927). Accordingly, Atkins not only held equitable title, but remained a creditor for purposes of determining whether there was a fraudulent conspiracy to extinguish her equitable interest, or to defraud her interest as a creditor as Atkins claims occurred under OCGA § 18-2-22 (2).

We find no merit in Ray’s enumeration of error 8 claiming the trial court erred in failing to grant her motion for a directed verdict on the basis that Atkins’ mortgage lien merged with her equitable interest.

2. Next, we address whether Ray’s failure to give Atkins written statutory notice of the non-judicial foreclosure under the power of sale in the debt deed was a basis upon which to find fraud and set aside the foreclosure deed. The verdict and judgment reflect a determination that Ray gave the notice required in the foreclosure sale. In her cross-appeal in Case No. A92A0758, Atkins’ sole claim is that the trial court erred by denying her motion for a directed verdict on the basis that the foreclosure deed be set aside for lack of proper notice.

In foreclosure proceedings instituted pursuant to OCGA § 44-14-160 et seq., only a debtor, as defined by statute, is entitled to receive any notice of the initiation of foreclosure other than by advertisement. Breitzman v. Heritage, 180 Ga. App. 171, 172 (348 SE2d 713) (1986). See OCGA §§ 44-14-162 and 44-14-162.1 through 44-14-162.4. “Those Code sections require that no sale of real estate on foreclosure shall be valid unless notice of the sale has been given the debtor; ‘debtor’ is defined as ‘the grantor of the mortgage, security deed, or other lien contract. In the event the property encumbered by the mortgage, security deed, or lien contract has been transferred or conveyed by the original debtor, the term “debtor” shall mean the current owner of the property encumbered by the debt, if the identity of such owner has been made known to and acknowledged by the secured creditor prior to the time the secured creditor is required to give notice pursuant to Code Section 44-14-162.2.’ OCGA § 44-14-162.1. This notice requirement, however, applies ‘only to the exercise of a power of sale of property all or part of which is to be used as a dwelling place by the debtor at the time the mortgage, security deed, or lien contract is entered into.’ OCGA § 44-14-162.3.” Dickens v. Calhoun First Nat. Bank, 197 Ga. App. 517, 519 (398 SE2d 814) (1990).

As discussed earlier, Atkins retained a creditor’s interest in the mortgage lien, and owned equitable title to the property. As holder of the mortgage lien, Atkins was entitled to notice only by advertisement. Breitzman, supra at 172. However, as one to whom equitable interest in the property was transferred, Atkins fit within the definition of debtor under OCGA § 44-14-162.1 as the current owner of equitable title to the encumbered property. Moreover, the evidence was sufficient to show that Atkins’ identity as such was known to and acknowledged by Ray prior to the foreclosure as required by OCGA § 44-14-162.1. Nevertheless, under the plain language of OCGA § 44-14-162.3 (a), to establish the debtor’s right to notice, the debtor must be one who used the property as a residence at the time he acquired the status of debtor as defined by OCGA § 44-14-162.1 Under OCGA § 44-14-162.2, notice “shall be given to the debtor,” but this requirement applies under OCGA § 44-14-162.3 only to the sale of property “to be used as a dwelling place by the debtor at the time the mortgage, security deed or lien contract is entered into.” The record shows that Atkins resided in Texas when she became the debtor by acquiring equitable ownership of the property by warranty deed. She never resided in the property, and testified she never intended to use the property as her dwelling place. The statute, being in derogation of common law, must be strictly construed according to its terms. Martin v. Fed. Land Bank, 173 Ga. App. 142 (325 SE2d 787) (1984). Accordingly, the lack of notice to Atkins, other than by advertisement, provides no basis for the alleged fraud, or reason to set aside the foreclosure.

For these reasons, we find no merit in Atkins’ argument on cross-appeal in Case No. A92A0758. In light of the verdict and judgment finding notice was proper, Ray’s enumeration 12 is rendered moot.

3. In Ray’s first three enumerations of error she claims the evidence was insufficient to support the verdict and judgment setting aside the foreclosure deed for fraud. Similarly, in enumerations of error 9 and 10, Ray contends the trial court erred in denying her motion for directed verdict on the basis that she made no misrepresentations or otherwise engaged in an illegal conspiracy. Atkins contended, and the jury concluded, that Ray and the Grahams fraudulently conspired to foreclose the first debt deed and extinguish her mortgage lien and equity interest in the property. The theory was that the Grahams arranged for Ray to purchase and take an assignment of the 1984 note and debt deed for the designed purpose of foreclosing Atkins’ interests. Generally, “it is not a fraud against the holder of a junior lien for the owner of the land to arrange with a third person for the purchase of an outstanding valid senior lien, for the purpose of thereafter advertising and selling the property thereunder in order to satisfy any actually unpaid debt secured by the senior lien, since in such a legitimate transaction the remedy of the junior lienholder is the payment or tender of the debt secured by the senior lien . . . .” Sweat v. Arline, 186 Ga. 460, 461 (197 SE 893) (1938). However, where the grantor has actually paid off the first security deed, but instead of cancel-ling it, arranged with a third person to obtain an assignment of the debt deed to foreclose and defeat the claim of a junior lienholder, this was found to be fraudulent. Id. at 461.

The evidence here is insufficient to establish that Ray participated in a fraudulent conspiracy. The first debt deed was unpaid when Ray purchased it from Austin, and, as stated in Sweat, Atkins’ remedy was to pay the senior lien in the foreclosure. Moreover, Atkins obtained equitable title to the property on June 19, 1989, and could have thereafter obtained fee simple unencumbered title by paying off the first debt deed prior to foreclosure. Assuming the evidence was sufficient to support Atkins’ contention that a conspiracy was afoot to defeat her interests, this evidence alone creates no cause of action. “A conspiracy, although wrongful in motive, to effect what one has a legal right to accomplish is not actionable.” Higginbotham v. Harden, 137 Ga. App. 143, 144 (223 SE2d 156) (1975). The gravamen of any civil conspiracy claim is not the alleged collusion, but tortious conduct committed against the plaintiff which proximately causes an injury. McElroy v. Wilson, 143 Ga. App. 893, 895 (240 SE2d 155) (1977). Atkins points to the fact that Ronald Graham conveyed Ray other real property worth $12,000 at the time Ray purchased the first debt deed for about the same amount; that the same lawyer who initially defended the Grahams in the first suit respecting the property also represented Ray in the foreclosure, and that after foreclosure the Grahams allowed the note to go into default. However, nothing precluded the defendants from taking any of these actions as a matter of right. For example, a debtor may act within his rights to make no further payments on a mortgage, and allow it to go into default to the detriment of subordinate interests. Mixon v. Mixon, 161 Ga. App. 645, 646-647 (288 SE2d 678) (1982). “Where damage results from an act which, if done by one alone, would not afford ground of action, the like act would not be rendered actionable because done by several in pursuance of a conspiracy.” (Punctuation and citations omitted.) Id. at 647. Ray took no actions sufficient to form the basis of a conspiracy to defraud Atkins as a creditor under OCGA § 18-2-22 or otherwise. See Caldwell v. Northwest Atlanta Bank, 194 Ga. 370, 376-377 (21 SE2d 619) (1942). Accordingly, we find merit in Ray’s enumerations of error 1, 2, 3, 9 and 10. The foreclosure deed was valid, and the judgment setting it aside and awarding damages for fraud against appellant must be reversed.

4. In her fourth enumeration of error, Ray claims the trial court erred by failing to grant her pre-trial motion to dismiss based on lack of venue. We find no error in the trial court’s refusal to dismiss Ray on lack of venue prior to presentation of the evidence at trial. However, we note the evidence as adduced at trial reflects a lack of venue. Although the suit against Ray sought to have the foreclosure deed set aside, this is not a suit respecting title to land which must be brought in the county where the land is located. Borden v. I. B. C. Corp., 220 Ga. 688, 690 (141 SE2d 449) (1965). As a general rule, a defendant must be sued in the county of his residence. Ga. Const. 1983, Art. VI, Sec. II, Par. VI. However, when multiple defendants are sued as joint tortfeasors, venue is in any county where one of the alleged tortfeasors resides. Smith v. United Ins. Co., 169 Ga. App. 751, 753 (315 SE2d 265) (1984). As a resident of Cobb County, venue over Ray was predicated on the allegation that she was a joint tortfeasor in a conspiracy with at least one resident of Catoosa County. Given the evidence presented and our findings that Ray was not a joint tortfeasor in the alleged conspiracy, it follows that venue was not established in Catoosa County.

Decided June 30, 1992

Reconsideration denied July 21, 1992

Hatcher, Johnson & Meaney, James A. Meaney III, for appellant.

Clifton M. Patty, Jr., for appellee.

5. Ray’s claim in enumeration 5 that the trial court improperly denied her motion for summary judgment was rendered moot by the entry of a verdict and judgment based on evidence introduced at trial. Seabolt v. Cincinnati Ins. Co., 199 Ga. App. 715, 716 (405 SE2d 757) (1991).

6. Based on our determination in Division 3 that the evidence was insufficient to set aside the foreclosure deed on the basis of fraud, we need not address Ray’s additional claims in enumerations 6, 7, 11, and 13 regarding lack of tender, default, and actual damages, and that Ray relied on advice of counsel, nor do we address the remaining enumerations regarding jury instructions.

Judgment reversed.

Birdsong, P. J., and Beasley, J., concur.

       Ray sent statutory notice to Ronald Graham at the property address pursuant to OCGA § 44-14-162.2. Evidence showed that despite the transfer of his equitable interest, no assumption of the first priority debt took place, and he continued making the payments on the note. As he remained responsible for the note secured by the 1984 debt deed, and the Grahams continued to use the property as a residence, he arguably remained a debtor within the meaning of OCGA § 44-14-162.1 as grantor of the security deed and note. However, as Graham retained no legal or equitable interest in the property at the time of foreclosure, he was not a debtor entitled to notice under OCGA § 44-14-162.2 before being deprived of his interest in real property by foreclosure under power of sale. Whether he would occupy the status of debtor for purposes of dealing with the obligation on the debt in an action for a deficiency judgment under OCGA § 44-14-161 is a question not presented here. See Breitzman, supra at 172 (comparing the definition of debtor under OCGA § 11-9-504 (3) as addressed in Branan v. Equico Lessors, 255 Ga. 718 (342 SE2d 671) (1986)).


author: Beasley, Judge.

text:
    A92A0367.
    STRICKLAND et al. v. WILSON et al.
    (421 SE2d 94)
   Beasley, Judge.

Plaintiffs Strickland instituted this wrongful death action as a result of the death of their two-year-old son Ryan. He was killed when a vehicle which his mother was driving collided with a vehicle driven in the opposite direction and into Strickland’s lane by Bobby Wilson. Ryan was a passenger in his mother’s car.

Wilson did not have a valid driver’s license and was operating his vehicle while intoxicated. He had a history of such. Approximately 90 days before the collision, Wilson was arrested for DUI and driving with a suspended license, and his car was impounded. Vaughn, Sheriff of Hart County, who was responsible for sequestering the car, released it to Gaines, a City of Hartwell police officer. Gaines in turn allowed Wilson to reacquire its possession.

The Stricklands sued Wilson; Gaines, individually and in his capacity as a City of Hartwell police officer; Vaughn, individually and in his capacity as Sheriff of Hart County; the City of Hartwell; and Hart County. They sought damages against the individual defendants, as well as against the city and county under the doctrine of respondeat superior.

Plaintiffs allege that Gaines and Vaughn were acting within the scope of their employment; both Gaines and Vaughn were aware of Wilson’s driving record; Gaines, who was Wilson’s friend, confidant, and creditor, persuaded Vaughn to release the car to him without proof that Wilson had insurance or a valid driver’s license; Vaughn knew Wilson would regain possession of the car; Vaughn’s release of the car to Gaines was negligent, grossly negligent, and done with conscious indifference to the consequences. Vaughn maintains that Gaines represented to him that Gaines was taking the car in settlement of a debt owed him by Wilson.

This is an interlocutory appeal from an order dismissing defendant Sheriff Vaughn, who had been sued in his official capacity, because of the Stricklands’ failure to give him notice of their claim within 12 months of its accrual, pursuant to OCGA § 36-11-1. The trial court considered Hayes v. Med. Dept. of DeKalb County Jail, 197 Ga. App. 563 (398 SE2d 837) (1990), to be controlling, but it is not so because it was viewed as only presenting claims against the county.

OCGA § 36-11-1 provides that “[a]ll claims against counties must be presented within 12 months after they accrue or become payable or the same are barred.” This relates to suits against the county itself. Commissioners of Roads &c. of Houston County v. Howard, 59 Ga. App. 451 (1 SE2d 222) (1939). As to such, the county, and not its agents in their representative capacities, is the proper defendant. Stelling v. Richmond County, 81 Ga. App. 571, 579 (4) (59 SE2d 414) (1950). Under the statute, the county is entitled to ante litem notice.

“The purpose of the law requiring claims to be presented within a year of their accrual is to afford the county an opportunity to investigate the claim and ascertain the evidence and to avoid the incurrence of unnecessary litigation. Davis v. Cobb County, 65 Ga. App. 533 (15 S. E. 2d, 814). It further serves a purpose in that, at the beginning of the year, county authorities generally estimate their budget requirements as a basis for the levying of taxes; they thereafter make commitments and pay out funds, and some method is needed for controlling the presentation of delayed claims which might be brought in subsequent years, with the result that suits would be brought and judgments obtained that could only be paid by diverting tax money levied for other purposes.” Stelling, supra at 575 (1).

The statutory requirement, being in derogation of the common law, is strictly construed. Cf. Hicks v. City of Atlanta, 154 Ga. App. 809, 810 (270 SE2d 58) (1980). Its underlying purpose is to protect the county’s purse. By its terms the statute provides this protection only to the governmental entity and does not extend it also to the county’s agents or employees who are sought to be held personally liable.

Instead, this case is somewhat analogous to Acker v. City of Elberton, 176 Ga. App. 580 (336 SE2d 842) (1985), which concerned OCGA § 36-33-5. It requires a party having a claim for money damages against a municipal corporation to present the claim in writing to the governing authority within six months of the happening of the event upon which the claim is predicated or be barred. The claim against the city was barred because of plaintiff’s failure to give ante litem notice under OCGA § 36-33-3, but this was held not to apply to the claim against the former police officer, whose arrest of plaintiff underlay the action.

Sheriff Vaughn argues that a suit against a county employee in his official capacity is in effect a suit against the county, since the county acts through its employees and officials. He has merged the separate doctrines of governmental and official immunity, as applied to a case such as this in which monetary judgments were at first sought against both the governmental entity and the official personally.

“ ‘[A]ny suit against an officer or agent of the State, in his official capacity, in which a judgment can be rendered controlling the action or property of the State in a manner not prescribed by statute, is a suit against the State. ..’... [Cit.]” Hennessy v. Webb, 245 Ga. 329, 330 (264 SE2d 878) (1980). That suit was against a public school principal for personal liability. Plaintiffs, like the Stricklands following their dismissal of the two governmental entities, sought damages only from the official personally and did not seek recovery from public funds.

Where a party seeks rendition of a monetary judgment against a governmental entity under the doctrine of respondeat superior based upon the conduct of a governmental officer or agent in his or her official capacity, that too is a suit against the state. Where, however, as here, a party seeks a money judgment holding a governmental officer or agent personally liable albeit for actions in his official capacity, that is a suit against the individual and not the government, although the doctrine of official immunity may bar the suit. See Hennessy, supra; Hicks v. Walker County School Dist., 172 Ga. App. 428, 429 (3) (323 SE2d 231) (1984). The question of immunity is not before us. It is distinguished from sovereign immunity and “serves as a protective aegis for public officials from tort liability for damages arising from discretionary acts or functions in the performance of their official duties.” 63A AmJur2d, Public Officers & Employees, § 359, p. 926 (1984).

Decided June 30, 1992

Reconsideration denied July 22, 1992

Moffett & Henderson, John W. Henderson, Jr., Henry B. Sams, D. Kevin Wheeler, for appellants.

Walter J. Gordon, Joanna B. Hannah, Joe B. Sartain, Jr., David L. Hudgins, for appellees.

Bobby H. Wilson, pro se.

Walker, Hulbert, Gray & Byrd, Charles W. Byrd, amicus curiae.

Plaintiffs were not compelled, by OCGA § 36-11-1, to notify Sheriff Vaughn of the suit in advance of filing it against him. The complaint against Vaughn is not subject to dismissal under OCGA § 36-11-1.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A1097.
    KITCHEN HARDWARE, LTD. v. KUEHNE & NAGEL, INC.
    (421 SE2d 550)
   McMurray, Presiding Judge.

Randy Kaas and Dana Kaas incorporated appellant Kitchen Hardware, Ltd. (hereinafter “Kitchen”), a kitchen utensil wholesaler, in the summer of 1989 and commenced operations in September. Shortly afterward, the appellee Kuehne & Nagel, Inc. (hereinafter “K & N”), an international freight forwarding business located in Europe and New York with a branch office in Atlanta, agreed to supply Kitchen with a line of credit and perform freight forwarding services.

In November, Kitchen received invoices from K & N which it disputed as containing charges that were excessive or not agreed upon. Kitchen’s treasurer Dana Kaas claimed that when she questioned him, K & N’s sales manager Hans Mixdorf informed her K & N would “teach [Kitchen] a lesson” for challenging the invoices. Although Mixdorf denied such a threat, on the same date he was accused of making the statement he transmitted a telefax message to K & N’s Portuguese shipping affiliate Nakutranslis Transitarios (hereinafter “N. T.”), reciting in pertinent part: “[Kitchen] has money problems and doesn’t want to pay our transportation charges for the former shipments. Pis hold all their freight air and ocean until further advise (sic). ...” The transmission of this message was within the scope of Mixdorf’s responsibilities with K & N in regard to credit/ invoice problems.

N. T. handled the shipments of goods to Kitchen originating in Portugal from the A Metalúrgica corporation (hereinafter “A. M.”), a Portuguese manufacturer and supplier to Kitchen. When N. T. informed A. M. that it would no longer complete shipments for Kitchen, A. M. inquired and N. T. transmitted the fax message from K & N to it in response. The fax transmittal was in turn communicated by A. M. to Kitchen’s creditor and purchasing agent in Europe, Julemi. As a result, A. M. ceased the manufacture of goods for Kitchen and K & N froze all shipments, including some that had been packaged and were ready to be transported. As a further result, Julemi altered the terms of its contract with Kitchen to require prepayments, and arrangements with some mail order catalogs were adversely affected.

Kitchen filed the instant suit against K & N and N. T. in four counts (alleging service upon the latter through the Hague Convention): Count One against K & N for communicating a defamatory statement to N. T.; Count Two against N. T. for communicating the defamatory statement to Kitchen’s suppliers; Count Three against K & N through its agent N. T. for publication of false material; and Count Four against both defendants for tortious interference with the contracts between Kitchen and its suppliers and with its business opportunities. Kitchen sought damages for lost sales and destruction of its reputation with its manufacturers and financial agents in Europe and with the business community. It appears that N. T. filed no answer or other responsive pleadings. K & N moved for summary judgment as to Counts One, Three and Four, which was granted and from which Kitchen appeals. K & N has filed a motion in this court to dismiss the appeal, contending that because the case remains pending as to N. T., Kitchen has not followed the appropriate appellate procedure. Held:

1. The motion to dismiss the appeal is denied. “An order granting summary judgment on any issue or as to any party shall be subject to review by appeal. An order denying summary judgment shall be subject to review by direct appeal in accordance with [OCGA § 5-6-34 (b)].” OCGA § 9-11-56 (h). Subsection (h), “which permits direct appeal from any grant of summary judgment, is an exception to the finality rule expressed in [OCGA § 9-11-54].” Edwards v. Davis, 160 Ga. App. 122 (1) (286 SE2d 301) (1981).

2. The trial court found that only one message was sent by K & N to N. T., its “sister” company, and that K & N had no communication with any of Kitchen’s other suppliers; that statements made with good faith intent on the part of the speaker to protect its interest in a matter in which it is concerned are privileged; that K & N had proved the message it intended to relay was that it did not want to be liable for payments on further shipments of goods if Kitchen had not yet paid for previous shipments; that Kitchen had not substantiated or quantified any damages flowing from the one message sent to N. T.; and that thus there was no genuine issue of material fact to try by a jury. Kitchen contends that this ruling addresses only the privilege defense raised by K & N, without reaching the issues of libel per se and tortious interference with contracts presented by its complaint. It asserts that K & N’s argument, that it did not intend to injure Kitchen, ignores the deposition testimony of Dana Kaas that Hans Mixdorf told her he intended to teach Kitchen a lesson; and that “[statements which tend to injure one in his trade, occupation or business are libelous per se. [Cit.]” John D. Robinson Corp. v. Southern Marine &c. Co., 196 Ga. App. 402, 404 (1) (395 SE2d 837) (1990).

“The publication of the libelous matter is essential to recovery.” OCGA § 51-5-1 (b). “ ‘(T)he usual rules of respondeat superior (the principal is liable for the torts of his employee committed while acting within the scope of his employment) are applicable in libel cases.’ [Cit.] Thus, there is no requirement that the agent be expressly authorized or directed by his principal to publish the libel. [Cits.]” Mulherin v. Globe Oil Co., 173 Ga. App. 790 (1), 791 (328 SE2d 406) (1985). Accord Gantt v. Patient Communications Systems, 200 Ga. App. 35 (3) (406 SE2d 796) (1991). However, statements made with a good faith intent on the part of the speaker to protect his interest in a matter in which he is concerned are privileged. OCGA § 51-5-7 (3).

“The defense of privilege in a libel action is one of confession and avoidance, that is, admission of the publication but on a privileged occasion and bona fide in promotion of the object for which the privilege was granted.” Auer v. Black, 163 Ga. App. 787, 789 (294 SE2d 616) (1982). While the question of good faith and privilege is normally one for the jury, “ ‘ “[o]n summary judgment the issue is simply whether defendant established as a matter of law that he made privileged statements.” ’ [Cits.] Examination of the record in toto reveals that the trial court did not err in concluding that as a matter of law publication [by the fax message] was privileged.” Southern Business Machines &c. v. Norwest Fin. Leasing, 194 Ga. App. 253, 259 (4), 260 (390 SE2d 402) (1990). “ ‘It is well settled that a communication made by one corporate agent to another is not publication in the legal sense. See Kurtz v. Williams, 188 Ga. App. 14, 15 (371 SE2d 878) (1988).’ ” Lepard v. Robb, 201 Ga. App. 41, 42 (1), 43 (410 SE2d 160) (1991). Since the evidence was undisputed that N. T. was an affiliated corporate branch of K & N and was the sole recipient of any information from K & N, there was no jury question presented on the issue of publication and summary judgment was proper.

Nor, is Kitchen entitled to reversal of the summary judgment on the complaint insofar as the subsequent publications to A. M. and Julemi are concerned. “ ‘Every publication of matter which is shown to be libelous is a separate cause of action; and where the plaintiff brings suit for publication at designated places, he cannot show publication to other persons at a different time and place, since it would tend to prove a cause of action separate from the one alleged in the petition.’ [Cit.] Even if the alleged defamation . . . was the same . . . , a republication is still a separate cause of action. ‘Each publication of (a) libel by different persons constitutes a separate and distinct wrong to the aggrieved party.’ [Cits.]” Deal v. Builders Transport, 192 Ga. App. 511, 512 (385 SE2d 293) (1989). In such cases, summary judgment in defendant’s favor “ ‘as to all’ ” of the claim asserted against it is proper even without reaching the questions of whether the statement was or was not defamatory or actionable as a matter of law. Id. at 512.

3. We also reject Kitchen’s contention that a jury issue exists on the question of tortious interference with the contracts between Kitchen and Julemi and A. M. Only “ ‘[t]he intentional and non-privileged interference by a third party with existing contractual rights and relations constitutes a tort for which an action will lie.’ ” Forehand v. Perlis Realty Co., 198 Ga. App. 165, 166 (400 SE2d 644) (1990). To authorize such a verdict, the evidence must show that the defendant “ ‘acted improperly and without privilege. . . .’” Blalock v. Wilensky, 199 Ga. App. 434, 440 (13) (405 SE2d 698) (1991); Contractors’ Building Supply v. Gwinnett Sash & Door, 199 Ga. App. 38 (2) (403 SE2d 844) (1991). Since the publication from K & N to N. T. was a privileged communication by which it sought to protect its own interests, no question of tortious interference could arise.

4. We further agree with the trial court that Kitchen did not substantiate or quantify any damages flowing from the fax message K & N sent to N. T. At most, the statements made therein constituted “ ‘disparaging words’ ” which are actionable only when special damage is incurred. Meyer v. Ledford, 170 Ga. App. 245 (1), 246 (316 SE2d 804) (1984). See OCGA §§ 51-5-4 (b); 51-12-2 (b). Kitchen produced only speculative testimony as to lost future sales and catalog space preferences, and Randy Kaas admitted it was “difficult to quantify the damages.” Even though a large shipment of cake pans was delayed, when A. M. resumed production Kitchen actually shipped more than originally ordered. There was no evidence of any company refusing to do further business with Kitchen, which had been operating only briefly at the time the message was sent. Since Kitchen was unable to substantiate what, if any, losses it suffered, or that such damages actually flowed form a tortious act committed by K & N, summary judgment was appropriate on this issue as well. See generally Denton v. Con-Way Southern Express, 261 Ga. 41, 42 (402 SE2d 269) (1991). We find no grounds for reversal.

Decided June 29, 1992

Reconsideration denied July 22, 1992

Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., Carroll G. Jester, Jr., for appellant.

Macey, Wilensky, Cohen, Wittner & Kessler, Mark L. Golder, for appellee.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A91A0995.
    HERITAGE INSURANCE COMPANY OF AMERICA v. EVANS.
    (421 SE2d 534)
   Andrews, Judge.

Zack Stamp, Director of Insurance for Illinois, appeals the grant of Marvin M. Black Company’s motion for reconsideration of the grant of Stamp’s motion for new trial.

Black was the general contractor on the State of Georgia’s Correctional Training Facility. As such, it was also obligee under performance and payment bonds issued by Heritage Insurance Company, domiciled in Illinois, and posted by ICC, the insulation subcontractor on the project. The face amount of each bond was $210,000. In August of 1985, ICC abandoned the project which was then taken over and completed by Black. In doing so, Black incurred over $299,000 in direct costs and additional indirect costs resulting in a total claim of $705,200. In February 1986, Heritage Insurance Company was declared insolvent by Illinois and Warren Evans, Commissioner of Insurance for Georgia, was appointed ancillary receiver because there were substantial assets located in Georgia, as provided in OCGA § 33-37-43 (a).

Pursuant to OCGA § 33-37-45, on February 25, 1987, Black filed its claim with the receiver, seeking the full face amount recovery on each of the bonds. There was only one supplier/subcontractor left unpaid by ICC, in the amount of $18,902.

The payment bond provided that “the condition of this obligation is such, that if [ICC] shall promptly make payment to all persons supplying labor and material in the prosecution of the work provided for in said Subcontract and any and all modifications . . . that may hereafter be made, then this obligation shall be null and void; otherwise it shall remain in full force and effect. . . . [ICC] and [Heritage] agree that this Bond shall inure to the benefit of all persons supplying labor and material in the prosecution of the work provided for in said Subcontract, as well as to the Obligee. . .

The final report of the Georgia ancillary receiver was filed with the court on March 22, 1989, and allowed recovery of $210,000 by Black, concluding that amount was the “limit of bond.” Black, while not contesting the award of $210,000, did object to the conclusion that this was the limit of the bond and argued that it was entitled to a total recovery under the two bonds of $420,000. By order of June 8, 1989, the court ordered the report filed and the notice required by OCGA § 33-37-45 (b) to be made, including notice to Stamp, the domiciliary state receiver. As stated in OCGA § 33-37-45 (b), “[i]f the domiciliary receiver within 30 days after the giving of such notice, shall give notice in writing to the ancillary receiver and to the claimant, either by registered or certified mail or by personal service, of his intention to contest such claim, he shall be entitled to appear or to be represented in any proceeding in this state involving the adjudication of the claim. The final allowance of the claim by the courts of this state shall be accepted as conclusive as to its amount and shall also be accepted as conclusive as to its priority, if any, against special deposits or other security located within this state.” No such notice to contest was filed by Stamp. The court’s order also stated that “[p]ersons failing to appear for said hearing [July 10, 1989] shall'be deemed to have waived any objections to the Final Report of the Ancillary Receiver and any action taken pursuant thereto.”

On July 3, 1989, Black filed its objection to the final report and an amendment thereto was filed on December 11, 1989. Before the court below, claimant Black and the State of Georgia Insurance Commissioner stipulated that two bonds had issued, one a payment bond and one a performance bond; that Black expended $143,204 on labor and $51,891 for materials to complete ICC’s subcontract work; that Black paid a supplier to ICC $18,902; and that, in addition to these costs, Black had incurred in excess of $210,000 because of ICC’s “failure to well and truly perform” its subcontract. In addition, the court’s order reflects that evidence was taken at the hearing, although no record was made of the proceedings.

The court concluded in its order of January 3, 1990 that the two bonds provided a total available coverage of $420,000 and sustained the objections of Black to the receiver’s report.

On January 18, 1990, Stamp, the Illinois domiciliary receiver, made his first appearance in the Georgia proceedings by filing a motion for new trial, raising for the first time in the Georgia proceedings the claim that the United States had a priority claim on the assets. It was also contended that its interest had not been adequately protected by the Georgia Attorney General. There was present and participating at the proceedings an employee/representative of the Illinois receiver, although no formal appearance had been made in the Georgia proceedings prior to this.

Because Judge Clarence Cooper, sitting at the initial hearing, was appointed to this court in the interim, a second judge considered the motion for new trial, although there was no record of the oral proceedings for his review. The motion was granted on August 13, 1990. On September 7, 1990, Black filed its motion for reconsideration which was heard by a third judge, appointed to fill Judge Cooper’s unexpired term. On October 29, 1990, that court granted the motion for reconsideration and denied the motion for new trial, thereby reinstating the original court order. This appeal by Stamp followed.

Although not raised by either party, it is incumbent upon this court to consider our jurisdiction. Gale v. Hayes Microcomputer Prods., 192 Ga. App. 30, 31 (3) (383 SE2d 590) (1989).

Here, the court’s order on Black’s objections was filed on January 3, 1990. Because these proceedings were pursuant to the Uniform Insurers Liquidation Act, as set out above, Black was required to notify Stamp, the domiciliary receiver, that Black desired to file and prove his claim in this state, setting out a concise statement of the claim, pursuant to OCGA § 33-37-45 (b). Although provided the notice required by the statute and the court’s order of June 8, 1989, no appearance was made by Stamp in the Georgia proceeding. Having filed no objections to the final report prior to the motion for new trial, the domiciliary receiver had failed to comply with the “bar order” and was thereby precluded from making later objections. Fibertex, Inc. v. Caldwell, 236 Ga. 136, 137 (223 SE2d 111) (1976); Preferred Ins. Co. v. Bentley, 225 Ga. 160, 163 (2) (166 SE2d 340) (1969).

Further, having not elected to become a participant in the Georgia proceedings, instead allowing Heritage Insurance Company, the company being liquidated, to appear and contest Black’s claim, Stamp was not a “party entitled” to file a motion for new trial. OCGA § 5-6-36 (a). Stamp, therefore, has no standing to appeal and this court has no jurisdiction over Stamp’s claims. Cf. Salter v. Heys, 207 Ga. 591, 593 (1) (63 SE2d 376) (1951); In re Thomas County Comm., 152 Ga. App. 332, 335 (2) (262 SE2d 604) (1979).

Decided June 4, 1992

Reconsideration denied July 23, 1992.

Alston & Bird, Robert D. McCallum, Jr., James C. Grant, for appellant.

Michael J. Bowers, Attorney General, Thomas A. Cox, Jr., Assistant Attorney General, Griffin, Cochrane, Marshall & Eiger, Terrence Lee Croft, for appellee.

Therefore, this court is without jurisdiction to consider this matter and it must be dismissed.

Appeal dismissed.

Birdsong, P. J., and Beasley, J., concur.

       Pursuant to OCGA § 33-37-7, since these proceedings were conducted prior to the effective date of the 1991 amendment revising this chapter, the substantive provisions of the pre-1991 statutes apply, although, pursuant to the order of the Supreme Court transferring the case back to this court after our transfer to it under former OCGA § 33-37-3 (e), the appellate provisions of that act are no longer in effect after July 1, 1991 and this court has jurisdiction of the appeal.

       There is also a final order dated and filed December 22, 1989 in the record which reaches the same result. We will treat the later filed order of January 3, 1990 (dated December 19, 1989), however, as the controlling one for purposes of our consideration.

       Further, the issues sought to be raised in the motion for new trial were not appropriate for such a motion. See Smith v. Wood, 189 Ga. 695 (2) (7 SE2d 255) (1940); Reid v. Reid, 201 Ga. App. 530, 531 (1) (411 SE2d 754) (1991); Sunn v. Mercury Marine, 166 Ga. App. 567, 568 (1) (305 SE2d 6) (1983).


author: Birdsong, Presiding Judge.

text:
    A92A0003.
    POPE v. WITTER.
    (421 SE2d 725)
   Birdsong, Presiding Judge.

Bob E. Pope appeals from a judgment, based upon a jury verdict, in favor of Richard Witter on Witter’s claims for breach of contract and expenses of litigation. Pope enumerates 18 errors contending generally that the trial court made erroneous rulings on the admissibility of evidence, made charging errors, improperly denied his motions for a mistrial and directed verdict, and erred by denying his motion for a new trial.

The record shows Witter sued to collect $8,000 which he claimed Pope agreed to pay him pursuant to a consulting contract if Witter would go to Chicago, attempt to convince another party to transfer business to Pope, and arrange a meeting between Pope and the other party. After the check was not paid by the bank and efforts to collect were unsuccessful, Witter sued for the amount owed under the agreement and for amounts he claimed as a result of Pope’s bad faith, stubborn litigiousness, or for making Witter go to unnecessary trouble and expense. After the jury’s verdict was made the judgment of the trial court, Pope filed this appeal. Held:

1. Pope’s first enumeration of error alleges that the trial court erred by denying his motion for a new trial because Witter attempted to introduce evidence that Pope gave another person a bad check. Review of the transcript shows that Pope made a motion for a mistrial on this ground rather than a motion for a new trial, and we will consider the enumeration of error on that basis. We find no reversible error.

Witter testified that Pope agreed to pay him $8,000 to act as a consultant and paid him in advance with a check that was later returned because of insufficient funds. Witter then testified that Pope gave a bad check to this other person as evidence showing that Pope entered into the contract with Witter in bad faith because the other bad check was evidence of Pope’s scheme to pay his debts with bad checks. This evidence was ultimately rejected, however, because Witter was unable to lay a proper foundation, and the jury was instructed not to consider the testimony. As Witter had made a claim seeking expenses of litigation under OCGA § 13-6-11, evidence of Pope’s bad faith was relevant. Granting or denying a motion for mistrial is a matter within the discretion of the trial court, and unless it is clear that a mistrial is essential to the preservation of the right to a fair trial, the trial court’s exercise of that discretion will not be disturbed. Salmon v. Salmon, 223 Ga. 129 (153 SE2d 719). Under the circumstances of this case including the trial court’s prompt curative instruction, we do not find that the trial court erred in denying Pope’s motion for a mistrial.

2. Pope’s second enumeration of error asserts that the trial court erred by denying his renewed motion for a mistrial based upon Witter’s unsuccessful effort to introduce evidence that Pope had given still other bad checks to two additional parties. Although the record shows that the trial court sustained Pope’s objection and instructed the jury not to consider this testimony, Pope contends that such curative measures were insufficient. We find no abuse of the trial court’s discretion. “Unless it is apparent that a new trial is essential to the preservation of the right of a fair trial, this court will not interfere with the discretion of the trial court.” (Citation and punctuation omitted.) Menningmann v. Independent Fire Ins. Co., 187 Ga. App. 118, 120 (369 SE2d 295).

3. Pope enumerates as error the failure of the trial court to rebuke counsel after the court sustained Pope’s objection to the testimony discussed in Divisions 1 and 2. We find no abuse of discretion. This evidence was potentially admissible on the issues of fraud or bad faith, but was ultimately excluded because Witter could not lay the proper foundation for admission. Accordingly, the trial court did not abuse its discretion by not rebuking counsel in addition to sustaining Pope’s objection, striking the testimony, and instructing the jury not to consider that testimony.

4. In the same manner we find no error in the trial court’s admission of testimony regarding bad checks given by Pope to another witness, but drawn on a corporate account.'Apparently finding that such evidence would show a fraudulent plan or scheme, the trial court found this evidence relevant on the issue of fraud or bad faith. Such matters are within the discretion of the trial court and our law favors admission of relevant evidence, leaving the weight it should be accorded for the jury. Thus, appellate courts will not interfere with the exercise of that discretion unless it is abused. Palmer v. State, 186 Ga. App. 892, 896 (369 SE2d 38); Kilpatrick v. Foster, 185 Ga. App. 453, 457 (364 SE2d 588). As we find no abuse of the trial court’s discretion, this enumeration is without merit.

5. Pope also claims that the trial court erred by admitting in evidence a letter from Witter to Pope threatening prosecution because of the bad check he was given. Pope alleges that this letter was not admissible because it is merely an allegation that Pope committed a crime. The transcript shows that this letter was admitted to show Witter’s efforts to collect the money he claimed that Pope owed him, and not to maintain that Pope had committed a crime. “The' Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.” (Citation and punctuation omitted.) Department of Transp. v. Swanson, 191 Ga. App. 752, 754 (382 SE2d 711); Palmer v. State, supra. Accordingly, there was no error.

6. Pope also contends that the trial court erred by not striking from this letter certain handwritten comments and failing to instruct the jury that those comments should be disregarded. Examination of the document shows that the comments Pope complains of consist of a person’s name and telephone number and a dated notation stating “hand delivered to Bob Pope @ 10:15 AM at 6 star. Sonny made Xerox and witnessed. RW.” Pretermitting whether it was error not to strike or give a curative instruction on consideration of these notations, it is unreasonable to conclude that these comments could have been harmful to appellant. Accordingly, this enumeration is also without merit. Leverett v. Flint Fuel, 183 Ga. App. 75, 78 (357 SE2d 882).

7. Pope contends the trial court erred by not directing a verdict in his favor because Witter had not obtained a business license. Pope’s argument relies upon the concept that one engaging in a regulated business must be properly licensed to maintain an action to recover fees for engaging in the regulated business. See, e.g., Management Search v. Kinard, 231 Ga. 26, 28 (199 SE2d 899). This concept, however, is unavailing in this instance because nothing in the record, or otherwise, shows that Witter was engaged in a regulated business. Thus, the trial court did not err by denying Pope’s motion for a directed verdict.

8. Relying on the principle that one dealing with a corporation generally cannot hold the owner of the corporation personally liable (see Lamas v. Baldwin, 140 Ga. App. 37, 40-41 (230 SE2d 13)), Pope asserts that the trial court erred by denying his motion for a directed verdict for him personally because Witter accepted a check from a corporation in payment of his fee. This argument, however, is contrary to the uncontradicted evidence that Witter was not dealing with the corporation, but was dealing only with Pope, personally. Accordingly, this enumeration also is without merit.

9. Pope contends the trial court erred by not granting his motion for a directed verdict on Witter’s claims for litigation expenses under OCGA § 13-6-11 because there was no evidence supporting the award of such expenses.

“In determining whether the trial court erred by denying appellants’ motions for a directed verdict . . . this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict... is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” (Citations and punctuation omitted.) Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268). Review of the transcript reveals that Witter’s unrebutted evidence shows that he and Pope reached an agreement that Witter would perform certain services for Pope and that in return Witter would be paid $8,000. The transcript also shows that Witter was paid in advance for these services with a worthless check which Pope did not make good and, further, in the intervening period Pope did not otherwise honor his agreement by paying Witter. Moreover, there was no evidence denying this liability from Pope, who did not attend the trial, and Pope never paid the debt. Further, Witter was required to retain an attorney to secure his money. Consequently, there is evidence from which the jury could infer that Pope entered into the agreement in bad faith and that he made Witter go to unnecessary trouble and expense to secure what he was owed. Under the circumstances this evidence is sufficient to warrant denial of Pope’s motion.

10. Pope combines enumerations 10, 11, 12, and 13 in one argument. Enumeration 10 contends that the trial court erred by allowing testimony that Witter incurred expenses in traveling from his home in California to attend the trial; enumeration 11 contends the trial court erred by denying Pope’s motion to strike this testimony; enumeration 12 contends the trial court’s charge misled the jury into believing these expenses were recoverable; and enumeration 13 that the trial court erred by refusing a requested charge to the effect that Witter could not recover lost profits. These enumerations are also without merit. As the testimony Pope complains about is to some extent relevant to the trouble and expense Witter incurred to recover what he was owed under the contract, we find no abuse of discretion in admitting this testimony. Moreover, we find nothing in the charge which reasonably construed would confuse the jury on whether these expenses were recoverable, and as the jury returned only the amount owed under the contract and attorney fees, it is clear that the jury was not misled. Further, as lost profits was not an issue in the case, the trial court did not err by refusing the requested charge. Accordingly, these enumerations also are without merit.

Decided July 1, 1992

Reconsideration denied July 23, 1992

Glenville Haldi, for appellant.

11. Relying on All Risk Ins. Agency v. Southern Bell Tel. &c. Co., 182 Ga. App. 190, 192-193 (355 SE2d 465), Pope alleges that the trial court erred by giving a charge that a witness who swears falsely, wilfully, and knowingly should not be believed unless corroborated. All Risk, however, does not stand for that proposition; All Risk merely holds that such a charge is not required unless raised by the evidence. The charge that Pope complains of was given as part of the general charge on credibility of witnesses, and under the evidence we cannot say that it was not warranted, or that there was any risk that Pope was harmed by giving such an instruction.

12. In enumerations 15, 16, and 17, Pope argues that the trial court erred by refusing to give charges concerning testimony of witnesses whose testimony was vague, equivocal, uncertain or was incredible, impossible, or inherently improbable. While these requested charges may be appropriate when there is some testimony which arguably can be termed vague, equivocal, uncertain, incredible, impossible, or inherently improbable, there was no such testimony in this appeal. Accordingly, it was not error to refuse to charge on matters inapplicable to the case. Sun v. Bush, 179 Ga. App. 80, 81-82 (345 SE2d 85).

13. Finally, Pope asserts that the trial court erred by not giving a charge applicable when the jury finds the evidence presented by each side is equally balanced. Under the evidence presented in this case, we find no requirement for such a charge, and as the general charge fully instructed the jury on the burden of proof applicable in this case, there was no error. McCurry v. McCurry, 223 Ga. 334, 335 (155 SE2d 378).

Judgment affirmed.

Beasley and Andrews, JJ., concur.

Rice & Keene, Kirk W. Keene, for appellee.


author: Cooper, Judge.

text:
    A92A0017.
    DEROSA v. SHIAH et al.
    (421 SE2d 718)
   Cooper, Judge.

Appellant appeals from the trial court’s grant of appellees’ motions for summary judgment.

In March 1989, appellant accepted an offer of employment with appellee Stratus Petroleum Corporation (“Stratus”). The terms of appellant’s employment with Stratus were reflected in two documents in which appellant was guaranteed two years of employment at a salary of $85,000 per year plus various corporate benefits. In the fall of 1989, appellant became aware of negotiations between Stratus and appellee Louis Dreyfus Energy Corporation (“Dreyfus”) for the takeover of Stratus’ operations. Appellant approached appellee Thomas Shiah (“Shiah”), the president of Stratus, to discuss the rumored takeover and appellant’s employment. In January 1990, Stratus and Dreyfus reached an agreement in the form of a lease of the operating assets of Stratus to Dreyfus. A comprehensive Operating Lease Agreement (“Lease Agreement”) was executed by Stratus and Dreyfus to effect their agreement. Beginning February 1, 1990, appellant was employed by Dreyfus, at the same salary and with the same benefits as were provided by Stratus. On March 14, 1990, appellant was notified that he was being terminated by Dreyfus, effective the next day. Severance pay for 30 work days was wired into appellant’s bank account. Appellant filed a complaint against appellees, alleging breach of contract by both Stratus and Dreyfus in their failure to honor the terms of his original employment contract with Stratus. Appellant also made an allegation of intentional interference with contract against Dreyfus. After a hearing on appellees’ motions for summary judgment, the trial court issued an order which, without explanation, granted the motions.

1. Appellant first argues that the trial court erred in granting summary judgment on the breach of contract claim against Dreyfus. Appellant argues that, pursuant to the terms of the lease agreement, his employment contract was assigned to, and assumed by, Dreyfus and that Dreyfus breached the contract by terminating him without cause. Appellees respond that the lease agreement does not render Dreyfus liable under appellant’s employment contract with Stratus; that the lease agreement only provided that Dreyfus shall employ appellant; that appellant accepted employment with Dreyfus under new terms as an employee at will without a written contract; and that, in any event, there.was an accord and satisfaction between Dreyfus and appellant as to their respective obligations when appellant accepted severance pay from Dreyfus.

The clarity and meaning of the terms of the lease agreement are central to the determination of whether appellant’s employment contract was assigned to, and assumed by, Dreyfus. Although the trial court’s order does not specify the analysis employed by the court in reaching its decision, we will assume that the court proceeded in accordance with the steps required of a trial court for construction of a contract. “ ‘There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity. [Cit.]’ [Cit.]” (Citations omitted.) Copy Systems of Savannah v. Page, 197 Ga. App. 435, 436 (398 SE2d 784) (1990).

Section 6.1 (a) of the lease agreement provides that Dreyfus “shall employ and be responsible for each person whose name appears on Schedule 1.4 and who does not refuse employment. . . (‘Terminal Employees’).” Appellant’s name appears on Schedule 1.4. Section 6.4 states that Dreyfus “shall assume and be responsible for all of the Benefit Arrangements covering nonunion Terminal Employees. . . .” Section 6.7 (a) defines “Benefit Arrangements” specifically as including all employment contracts listed on Schedule 6.7 (a). Schedule 6.7 (a) lists under “employment, labor and collective bargaining agreements” the employment agreement between Stratus and appellant. Also, Section 6.7 (h) states that “[n]either the execution and delivery of this Lease nor the consummation of the transactions contemplated herein will terminate or modify, or give a third party a right to terminate or modify, the provisions or terms of any Benefit Arrangement . . . .” Further, Shiah testified that in his opinion appellant’s contract was an obligation of Dreyfus under the lease agreement. In contrast to these lease agreement provisions which arguably support appellant’s contention that his contract was assumed by Dreyfus, Section 6.8 of the lease agreement disclaims responsibility for contracts specifying employment duration, and provides that “[notwithstanding the foregoing, nothing express or implied in this Lease is intended to confer upon any member or former member of the SPC Employees, the Terminal Employees or the Existing Lessee Employees any rights or remedies (including any rights of employment for any specified period of time), nor shall [any such member or former member] ... be considered to be a third party beneficiary to this Lease.” Appellees further emphasize that Section 6.1 only requires Dreyfus to offer employment but does not impose any liability on Dreyfus for pre-existing employment contracts. Appellees also cite the last paragraph of Section 6.4 which states that Dreyfus is not obligated to provide any specific level of benefits after January 1, 1990 and can amend, terminate or modify benefits thereafter. We conclude that an ambiguity exists on the issue of whether Dreyfus assumed liability under appellant’s employment contract with Stratus based on the language of Sections 6.4, 6.7 (a) and 6.7 (h) of the lease agreement, on the one hand, and the language of Section 6.8, on the other hand. Even after applying the applicable rules of construction, the ambiguity remains. See Karlan, Inc. v. King, 202 Ga. App. 713 (415 SE2d 319) (1992). The intent of the parties to the lease agreement with respect to the assumption of appellant’s employment contract is “ ‘an evidentiary, factual matter for resolution by the jury and not a matter of law for determination by the court.’ ” Prince v. Kujawa, 178 Ga. App. 828 (1) (344 SE2d 680) (1986). Because of the ambiguity of the lease agreement, the grant of summary judgment was in error.

The grant of summary judgment to appellees on the issue of an accord and satisfaction between appellant and Dreyfus was also in error. “Accord and satisfaction occurs where the parties to an agreement, by a subsequent agreement, have satisfied the former agreement, and the latter agreement has been executed.” OCGA § 13-4-101. “Like any other contract, accord and satisfaction requires a meeting of the minds as to the subject matter embraced therein, if it is to be valid and binding. [Cits.] Where there is no agreement to settle all matters in dispute, no accord and satisfaction result. [Cits.]” Wallace v. Harrison, 166 Ga. App. 461 (2) (304 SE2d 487) (1983). Furthermore, “ ‘[a]s a general rule, whether there is accord and satisfaction is a question for the jury. (Cit.)’ [Cit.]” Pierce v. Taylor, 190 Ga. App. 819 (2) (380 SE2d 351) (1989). Appellees contend that appellant’s acceptance of the severance pay offered by Dreyfus and appellant’s choice to accept continuation of health insurance benefits are conclusive of an accord and satisfaction between the parties. We disagree. Although appellees produced evidence that appellant responded to the notice of his severance pay by stating, “that’s fair,” this is not sufficient to show a meeting of the minds on accord and satisfaction. In fact, appellant states in his affidavit that he never negotiated the amount of severance pay with Dreyfus; that the company simply told him how much he would receive; that he never discussed with Dreyfus whether the severance pay was in satisfaction of any other claims he had; that he never intended the severance pay to release Dreyfus or Stratus from their obligations under his employment contract; that he never signed any document releasing any claims he had; and that he never intended the severance pay to be in satisfaction of any other claims he may have. The record shows that the separation notice given to appellant at the time of his termination from Dreyfus says nothing about the satisfaction of any other claims of appellant. Deposition testimony reveals that Dreyfus had no explanation for the amount of severance pay given to appellant but that it was a discretionary amount. The money was wired into appellant’s account; appellant never endorsed a check for the amount or signed any other document indicating his intent with respect to the purpose of the severance pay. “The existence vel non of mutual intention is ordinarily a question of fact which is reserved for determination by the jury. [Cits.]” Mayer v. Turner, 142 Ga. App. 63 (1) (234 SE2d 853) (1977). Compare Mobley v. Fulton Roofing Co., 173 Ga. App. 563 (1) (327 SE2d 540) (1985). In this case, we determine that a genuine issue of material fact as to the existence of an accord and satisfaction does exist, and this issue should be submitted to a jury. Mayer, supra at 64. Therefore, as to appellant’s first enumeration of error, the breach of contract claim against Dreyfus, the trial court erred in granting summary judgment to Dreyfus.

2. In his next enumeration, appellant contends that the trial court erred in granting summary judgment on the breach of contract claim against Stratus in which appellant alleged alternatively that if Dreyfus did not assume his contract, then Stratus remained liable thereunder. Stratus responds that there was a novation in the contract with Stratus, and the contract was terminated when appellant voluntarily accepted the same job with Dreyfus. Stratus presented evidence that appellant approached Shiah during the negotiations with Dreyfus, expressed concern about his employment and asked for Shiah’s help in maintaining his job security. Appellant stated in his affidavit that Shiah assured appellant that he would protect his interests; that Shiah stated to appellant, “you will always have a job with me”; that he never signed any document releasing Stratus from liability on his employment contract; that, based on Shiah’s statements, he believed that Stratus and Dreyfus would continue to both be liable on the contract; that he never consented to a termination or novation of his employment contract; and that he never agreed to become an employee at will with Dreyfus. As with an accord and satisfaction, “ ‘[a] novation. . . is in itself a contract and must have all the elements of a de novo contract. (Cits.) Therefore, there must be a meeting of the minds if the novation ... is to be valid and binding.’ [Cit.] ‘ “In every novation there are four essential requisites: (1) a previous valid obligation, (2) the agreement of all the parties to the new contract, (3) the extinguishment of the old contract, (4) the validity of the new one. If these essentials, or any one of them, are wanting, there can be no novation.” (Cit.)’ [Cit.]” Griffiths v. Phenix Supply Co., 192 Ga. App. 651 (1) (385 SE2d 789) (1989). “ ‘ “(M)ere acceptance by the obligee of performance by the assignee, or substituted obligor, of the contract is not sufficient to establish novation in the absence of words or conduct tending to show an intention or agreement on the part of the obligee to release the original obligor and extinguish his liability.” (Cit.)’ [Cit.]” Phillips v. Plymale, 191 Ga. App. 338, 339 (1) (381 SE2d 580) (1989). Based on the conflicting evidence in the record, we find that there is a genuine issue of material fact as to the intentions of the parties, and appellant’s allegations of breach of contract against Stratus should be determined by a jury. See Mayer, supra at 64. Acree v. Kay, 188 Ga. 783 (4 SE2d 820) (1939), relied on by appellees, is not persuasive in that the court found an agreement among the parties to a novation based on the specific facts of the case. As previously stated, the facts of the instant case present a genuine issue for resolution by a jury. Accordingly, the trial court erred in granting summary judgment to Stratus on the breach of contract claim.

3. Appellant’s last enumeration challenges the trial court’s grant of summary judgment to Dreyfus on the intentional interference with contract count of the complaint. “ ‘The intentional and non-privileged interference by a third party with existing contractual rights and relations constitutes a tort for which an action shall lie. (Cits.) Furthermore, the courts of this state have recognized that such interference with a contractual right or relationship need not result in a breach of the contract to be actionable. It is sufficient if the invasion retards the performance of the duties under the contract or makes the performance more difficult or expensive.’ [Cit.] Thus, ‘it is actionable maliciously and without justification to induce one to break his contract with another to the damage of the latter.’ [Cits.] . . . ‘The act is malicious when it is done with knowledge of the party’s rights and with the intent to interfere with them.’ [Cit.] Intent may be proved by circumstantial evidence.” (Emphasis and citations omitted.) Southern Business &c. of Savannah v. Norwest Fin. Leasing, 194 Ga. App. 253 (3) (390 SE2d 402) (1990). Dreyfus was fully aware of appellant’s employment contract with Stratus. Shiah testified that control over Stratus’ employees was an important factor to Dreyfus in the lease negotiations. Appellant stated in his affidavit that Shiah told him not to mention his employment contract to Dreyfus because it would only antagonize them. From the evidence in the record, we find that there is a genuine issue of material fact as to the intent of Dreyfus to interfere with the contractual relationship between appellant and Stratus. Id. Summary judgment on this count should not have been granted.

Judgment reversed.

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

On Motion for Reconsideration.

We have considered appellees’ motion for reconsideration and adhere to our opinion. With respect to the liability of appellee Stratus discussed in Division 2, however, appellees raise two lines of argument not addressed in the main opinion which will be briefly addressed here. Appellees argue that, totally apart from the novation question, Stratus’ liability under appellant’s employment contract terminated when (1) it voluntarily went out of the business for which appellant was hired by leasing its assets to Dreyfus; and/or (2) appellant started to work for Dreyfus. To support the former line of argument, appellees cite Phillips v. Amoco Oil Co., 799 F2d 1464 (11th Cir. 1986), in which the Eleventh Circuit held that, as a matter of Alabama law, the sale of a business excused the breach of a “lifetime” employment contract. Unlike the “lifetime” contract in Phillips, however, appellant’s employment contract here is for a specified and relatively short period of two years. Under these circumstances, we do not think it unreasonable to hold a company to its obligations under an employment contract, just as it would be held to its obligations under other contracts, despite its voluntary decision to get out of the business for which the obligations were incurred. See, e.g., Martin v. Star Pub. Co., 126 A2d 238 (50 Del. 181) (corporation not excused from performance of agreement to pay money because it voluntarily discontinues its business).

Decided June 8, 1992

Reconsideration denied July 23, 1992

Richard R. Thomas, for appellant.

Stowers, Hayes, Clark & Roane, Fred G. Stowers, E. Hearst Roane, Jr., H. Fred Gober, for appellees.

Acceptance of appellees second line of argument, that Stratus’ liability under the employment contract terminated when appellant accepted other employment, would undermine the policies favoring mitigation of damages. Nonetheless, appellees argue such a rule is mandated by Anderson v. Freeman, 75 Ga. 93 (1886). Appellees’ reliance on Anderson is misplaced, however. In Anderson, the initial employer became a partner in a partnership which took over his business. The new partnership continued to employ the employee, but the employee insisted that the partnership pay him double what the initial employer had paid him. When he refused to work for the new employer for the same wages he had previously been paid, he was discharged; and it was under these circumstances that the court held the employee could not recover from the initial employer. Thus, this second line of argument is also without merit. See Globe &c. Ins. Co. v. Jones, 89 NW 580 (129 Mich. 664) (1902) (“ ‘When a person contracts to work for another for a term, . . . the master cannot shift his liability by turning the servant over to another master before the term is ended. . . .’ [Cits.]”). Stratus’ liability terminated only if there was a novation, and, for the reasons discussed in Division 2, whether there was a novation is a question of fact precluding summary judgment.

Motion for reconsideration denied.


text:
    A92A0018.
    FREEMAN v. THE STATE.
    (421 SE2d 308)
   Cooper, Judge.

In a 41-count indictment, appellant and six others were charged with various crimes resulting primarily from a series of five armed robberies occurring between April 25, 1990 and June 24, 1990. Five of the seven co-defendants entered guilty pleas, and the case proceeded to trial against appellant and the remaining co-defendant. It is undisputed that appellant was incarcerated during the first armed robbery; therefore, the charges against appellant: nine counts of armed robbery, four counts of possession of a firearm, eight counts of false imprisonment, four counts of aggravated assault, three counts of making terroristic threats, and one count of simple battery arose from the last four armed robberies. However, the charges against appellant’s co-defendant arose from all five of the robberies.

Prior to trial, appellant filed a motion for severance, contending that some of the charges against the co-defendant related to the first robbery and that this evidence would prejudice the jury against appellant and create confusion in the minds of the jurors. The trial court denied the motion, and the jury returned a verdict finding appellant guilty of one count of armed robbery, four counts of aggravated assault, three counts of false imprisonment, and one count of possession of a firearm during the commission of a crime. Appellant’s sole enumeration of error is the trial court’s denial of his motion to sever.

“When [jointly] indicted for a capital felony when the death penalty is waived, or for a felony less than capital, or for a misdemeanor, such defendants may be tried jointly or separately in the discretion of the trial court.” OCGA § 17-8-4. “The grant or denial of a motion to sever is within the discretion of the trial court and absent an abuse of discretion, denial of a motion to sever is not grounds for reversal. In Cain v. State, 235 Ga. 128 (218 SE2d 856) (1975), the Supreme Court set forth the considerations for the trial court in exercising its discretion, one of which is whether “there [is] a danger that evidence admissible against one defendant will be considered against another despite admonitory precaution of the court.” Id. at 129. “However, the court in Cain also stated that ‘the burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. (Cit.) He must make a clear showing of prejudice and a consequent denial of due process. (Cits.)’ [Cit.]” Jones v. State, 190 Ga. App. 175, 176 (378 SE2d 518) (1989).

Decided June 26, 1992

Reconsideration denied July 23, 1992.

W. Edward Nethery, John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, J. Thomas Morgan III, Assistant District Attorneys, for appellee.

Appellant has failed to meet his burden. The evidence against appellant as to his participation in four of the robberies, included eyewitness testimony, ballistic testimony, testimony of co-defendants identifying appellant as a participant, and evidence from the scene of the crime which was found in appellant’s home. There was no evidence that appellant participated in the first robbery, and one of the co-defendants who pled guilty confirmed that appellant was not involved in the first robbery. “Under the circumstances, we conclude that the appellant failed to make a showing of clear prejudice that is required to warrant a severance, with the result that the trial court did not manifestly abuse its discretion in refusing to grant the appellant a separate trial. [Cit.] ” Ledbetter v. State, 202 Ga. App. 524, 525 (2) (414 SE2d 737) (1992).

Judgment affirmed.

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


text:
    A92A0056.
    ELBERT COUNTY BOARD OF EDUCATION v. SHANKLE.
    (421 SE2d 536)
   Cooper, Judge.

We granted this discretionary appeal from an order of the superior court reversing a decision of the State Board of Education. The underlying issue involves the ability of a local school board to reassign a properly certified teacher to an area outside her area of certification.

The essential facts of this case are not in dispute. Beginning with the 1990-91 school year, appellant, the Elbert County Board of Education, in an attempt to qualify for incentive grants made available through the Quality Basic Education Act, reorganized its schools so that the middle school consisted of grades 6, 7 and 8. Prior to that time, the middle school had consisted only of grades 7 and 8, and for the past 15 years, appellee had been an eighth grade english teacher in the middle school. Appellee held a teacher’s certification to teach english in grades 7-12, and in 1990 she signed her annual contract which assigned to her the duty of teacher in the Elbert County Middle School. To facilitate the reorganization of the schools, the principal of the middle school reassigned some teachers who had previously taught 7th and 8th grade classes to the 6th grade classes and reassigned some 6th grade teachers to the 7th and 8th grade classes. Although appellee’s certificate was for grades 7-12, she was reassigned to teach 6th grade english. Her reassignment did not involve any reduction in pay or responsibility and allowed her to teach 6th grade english for one year without obtaining another certification. However, to obtain the appropriate certification allowing her to teach the sixth grade, appellee was required to take two courses related to middle school teaching and pass the Teacher’s Certification Test (“TCT”) in the area of middle school education. Appellee was awarded, and accepted, a stipend of approximately $1,400 to assist her in taking the courses required to obtain the new certification and completed all of the necessary requirements with the exception of taking the TCT. Appellee filed a grievance protesting her reassignment, contending that the reassignment violated her rights under the Fair Dismissal Act, OCGA § 20-2-940 et seq. Following a hearing, appellant entered a decision upholding the principal’s decision to reassign appellee. Appellee appealed that ruling to the State Board of Education (“State Board”), which entered an order affirming appellant’s ruling. The State Board concluded that appellee implicitly agreed to the transfer by accepting the stipend and completing the required course work and that appellee’s acceptance of the stipend amended appellee’s contract and created a contractual obligation on the part of appellee to perform accordingly by obtaining the new certification. Pursuant to OCGA § 20-2-1160, appellee appealed the decision of the State Board to the Superior Court of Elbert County. Appellant filed a cross-appeal, contending that the State Board erred in placing a condition on its affirmance of the reassignment and in implying in its order that appellant could not reassign appellee without an amended contractual agreement created by appellee’s acceptance of the stipend. The superior court held that the State Board erred in ruling that there had been a valid amendment to appellee’s contract and remanded the case to the State Board for the entry of an order reversing appellant’s decision to deny appellee’s grievance. As to the appellant’s cross-appeal, the superior court held that the issues raised in the cross-appeal had not been addressed by the State Board, therefore those issues were not properly reviewable by the superior court.

We find no error with the superior court’s determination that appellee’s acceptance of the stipend did not constitute an amendment to her contract. Appellee’s contract expressly states that any amendment must be in writing. We also note that appellant concedes in its brief that what was involved was not an amendment to the contract but merely a reassignment made pursuant to appellee’s contract. Thus, the issue is whether appellant had authority to reassign appellee to a grade outside her area of certification, thereby requiring her to take additional courses and pass the TCT. That issue was argued by both parties beforé the State Board and formed the basis of appellant’s cross-appeal to the superior court. However, the trial court failed to review appellant’s cross-appeal on the ground that the issue raised was not passed upon by the State Board and was not properly reviewable by an appellate court.

The State Board order reads, in pertinent part, as follows: “OCGA § 20-2-943 (b) permits a local board of education to assign and reassign teachers as it deems necessary. The statute does not establish any restrictions on such assignments and reassignments. Here, [appellee] implicitly agreed to the transfer, as evidenced by her acceptance of the stipend and completion of the requisite course work. While [appellee] argues that the transfer will lead to her dismissal, the facts do not show that [appellant] will terminate [appellee’s] employment. [Appellee’s] claim of any violation of the Fair Dismissal Act is premature.

“The issue before this Board is not whether a system can require a teacher to accept a transfer into an area where she lacks the appropriate certification but whether or not by virtue of her performance on an agreement amends the contractual obligation of the employment contract. We find that it does create an amendment to the contract and, therefore, creates the contractual obligation by the [appellee] to perform accordingly, i.e., obtain a middle school certificate. Whether or not [appellee] is in breach of this contract is not a question before this Board.

“Based on the foregoing, the State Board of Education is of the opinion that [appellant] could transfer [appellee] to a sixth grade teaching position if the transfer complies with the regulations of this Board and [appellee’s] certification.

“Accordingly, [appellant’s] decision to transfer [appellee] is sustained if [appellee] is qualified to teach the class to which she has been transferred.”

We agree with the trial court that the State Board did not enter a ruling on appellant’s authority to reassign appellee. However, since this matter was properly raised and argued before the State Board, the proper procedure would have been for the superior court to remand the case to the State Board to enter a decision on the issue of appellant’s authority to reassign appellee to a grade outside her area of certification. Accordingly, this case is remanded to the superior court with direction that the superior court remand the case to the State Board for entry of a decision on that issue.

Case remanded with direction.

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

Decided June 12, 1992

Reconsideration denied July 23, 1992

Heard, Leuerett & Phelps, E. Freeman Leverett, for appellant.

Henry & Pearson, J. Hue Henry, for appellee.


text:
    A92A0117.
    A92A0118.
    A92A0119.
    HOWARD et al. v. DeKALB COUNTY JAIL STAFF et al. HOWARD v. JOSEY et al. HOWARD et al. v. MacDOUGALD et al.
    (421 SE2d 309)
   Cooper, Judge.

These companion cases arise from appellants’ incarceration in the DeKalb County Jail. In Case No. A92A0117, appellants, two inmates, pro se, allege that their constitutional rights were violated by the staff of the jail when their cell assignments were changed and in the administration of medical care to appellant Edgar Howard (“Howard”). In Case No A92A0118, Howard contends his constitutional rights were violated by officers at the jail who revealed to other prisoners that he was convicted of child molestation, thereby putting his life in danger. Case No. A92A0119 was brought against a jail official, the DeKalb County Attorney (“Johnson”) and an associate attorney (“MacDougald”) based on alleged libelous and slanderous statements contained in a motion for summary judgment and an affidavit filed in Case No. A92A0117 on behalf of the jail personnel, which was prepared by the two attorneys. The complaint also charged MacDougald with fraud and deceit based upon an alleged improper attempt by MacDougald to obtain a release and voluntary dismissal of this action from appellant Frederick Waters (“Waters”). Appellants appeal the trial court’s grant of appellees’ motions for summary judgment (Case Nos. A92A0117 and A92A0118) and motion to dismiss for failure to state a claim upon which relief could be granted (Case No. A92A0119).

Case No. A92A0117

1. Appellants enumerate three procedural errors committed by the trial court in its grant of summary judgment to appellees — failure to hold a formal hearing, application of improper standard of review and failure of the trial court to call witnesses. However, in their brief, appellants did not support the enumerations of error with argument or citation of authority. Instead, appellants argued that their actions, which preceded their removal from a particular cell block, did not justify their removal. Enumerations of error not supported by argument or citation of authority are deemed abandoned. Court of Appeals Rule 15 (c) (2); Greenhill v. State, 199 Ga. App. 218, 219 (404 SE2d 577) (1991). Moreover, even giving due consideration to appellants’ pro se pleadings, “ ‘ enumeration [s] of error may not be enlarged by brief on appeal to cover issues not enumerated. [Cit.]’ [Cit.]” Pier 1 Imports v. Chatham County &c. Assessors, 199 Ga. App. 294, 296 (2) (404 SE2d 637) (1991). Inasmuch as appellants have not articulated a basis for reversing the trial court’s order, we find no error in the grant of summary judgment.

Case No. A92A0118

2. Appellant filed this appeal on August 6, 1991. Thereafter, despite a total of four extensions of time and an order requiring submission by December 9, 1991, no enumerations of error and brief were received by this court. We, therefore, dismiss the appeal in Case No. A92A0118 pursuant to Rule 27 (a) and Rule 14 of the Rules of the Court of Appeals; Cauley v. Turman Realty, 188 Ga. App. 238 (373 SE2d 398) (1988).

Case No. A92A0119

3. Appellants enumerate as error the failure of the trial court to conduct a full evidentiary hearing on appellees’ motion to dismiss and the court’s failure to allow appellants to take a deposition. These enumerations are not supported with argument or citation of authority and are deemed abandoned. Court of Appeals Rule 15 (c) (2); Greenhill, supra; White v. State, 179 Ga. App. 276 (346 SE2d 91) (1986).

4. Appellants also argue essentially that the trial court erred in granting appellees’ motion to dismiss.

(a) The alleged inclusion of false statements in the defendants’ brief in support of the motion for summary judgment in Case No. A92A0117 and in an affidavit submitted on behalf of appellee Robert W. Melton, which were prepared by appellees Johnson and MacDougald, is the basis for appellants’ claim of libel and slander. “All charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous.” OCGA § 51-5-8. “Therefore, an action for libel founded on allegations in a pleading fails to state a claim upon which relief can be granted. [Cit.]” Garrett v. DeWorken, 148 Ga. App. 656, 657 (252 SE2d 81) (1979). The superior court was of competent jurisdiction for Case No. A92A0117 and defendants’ motion for summary judgment. Although appellants in the instant case did not set forth which specific statements in the brief and affidavit were libelous, our review of the entire brief and affidavit reveals that they were pertinent, material and necessary in order to establish the defendants’ entitlement to summary judgment. See Garrett, supra. Accordingly, the trial court did not err in granting appellees’ motion to dismiss.

Decided June 26, 1992

Reconsideration dismissed July 23, 1992.

Edgar W. Howard, pro se.

Johnson & Montgomery, Albert S. Johnson, Harry W. MacDou gald, for appellees.

(b) Appellants also allege that MacDougald improperly contacted appellant Waters and, using false statements, attempted to have Waters execute a voluntary dismissal and release of his claim in the lawsuit. Appellants contend that MacDougald’s actions constituted fraud and deceit. OCGA § 51-6-2 (a) provides in pertinent part: “Willful misrepresentation of a material fact, made to induce another to act, upon which such person acts to his injury, will give him a right of action.” “The essential and necessary elements in a case of this nature which must be proved are: (a) that the representations were made by the defendant; (b) that they were knowingly and designedly false; (c) that they were made for the purpose and with the intent to deceive and defraud; (d) that they did deceive and defraud; (e) that they related to an existing or past fact; (f) that the party to whom the false statements were made did not know that they were false; and (g) that the plaintiff relied on their truth and suffered a loss.” D. A. D., Inc. v. C & S Bank, 227 Ga. 111, 117 (2) (179 SE2d 71) (1971). Appellants’ claim is deficient in several respects. In their complaint, appellants failed to set forth any misrepresentation in MacDougald’s letter to Waters. While a pleading should not be dismissed for failure to state a claim merely because allegations of fraud are not pled with sufficient particularity, the trial court did not err in granting appellees’ motion to dismiss because it appears beyond doubt that appellants can prove no set of facts in support of their claim which would entitle them to relief. See Cochran v. McCollum, 233 Ga. 104, 105 (210 SE2d 13) (1974). Inasmuch as Waters is still a party to the case, there was no reliance on alleged misrepresentations, nor was there harm to Waters or Howard.

Judgments affirmed in Case Nos. A92A0117 and A92A0119. Appeal dismissed in Case No. A92A0118.

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