text:
    A98A0194.
    WOODMEN OF THE WORLD, UNIT NUMBER 3 et al. v. JORDAN.
    (499 SE2d 900)
   Judge Harold R. Banke.

D. L. Jordan sued Woodmen of the World, Unit Number 3 (“Unit 3”) and Woodmen of the World Life Insurance Society (“Society”), seeking an injunction for a continuing nuisance and damages. After the jury returned a plaintiff’s verdict of $25,000 and the court issued a permanent injunction, the Society and Unit 3 commenced this appeal, enumerating four errors.

This case arose after Jordan purchased property from Unit 3. Jordan’s property adjoined Unit 3’s offices and its lodge, which was periodically leased for wedding receptions and other functions. In conjunction with the sale, the parties entered into an agreement granting Unit 3 a driveway easement and parking rights on nights and Sundays in a specified area of Jordan’s property “as long as such right does not interfere with Jordan’s use” of the tract. This arrangement worked well for Society meetings and their Bingo games, but Jordan objected to the debris created by customers of Unit 3’s lessees, such as fraternities and nightclub operators, and the problems of ingress and egress such activities imposed on his own tenants. After numerous complaints to Unit 3 over a three-year period, Jordan commenced this action. Jordan then amended his complaint to add the Society as a party, alleging it controlled and managed Unit 3’s property through its agents. Held'.

1. The Society argues that it was entitled to a directed verdict because the undisputed evidence showed that it had no authority or control over Unit 3’s property. We disagree.

An agency relationship arises when an entity, expressly or by implication, authorizes another to act for it or subsequently ratifies the other’s act on its behalf. OCGA § 10-6-1. “ ‘A claim of agency may be proved, as any other fact, by circumstantial evidence. . . . The fact of agency may be established by proof of circumstances, apparent relations, and the conduct of the parties.’ [Cit.]” Nissan Motor &c. Corp. v. Stovall Nissan, 224 Ga. App. 295, 298 (1) (480 SE2d 322) (1997). The threshold for showing agency in this procedural posture is low, and any factual support will suffice. See Trustees of Trinity College v. Ferris, 228 Ga. App. 476 (1) (491 SE2d 909) (1997).

Here, the record showed that Michael Yelverton, a Society employee, was active in managing the property at issue. He testified that the Society was lienholder of the property and financed the building of the lodge. Yelverton denied any affiliation with Unit 3, but testified that his office was located on the property at issue rent-free. The record shows that he hired field representatives for the Society, authored Unit 3’s annual report for the Society, mowed the grass and performed general maintenance at the lodge.

Identifying himself as the area manager of Woodmen of the World, Yelverton responded to Jordan’s complaints by contracting for security services to prevent any trespassing on Jordan’s property when the lodge was in use. He also admitted to preparing a rental agreement with a lessee of the lodge. During the function the lessee held, a teen dance, Yelverton visited the premises to assure that security was provided.

Jordan testified that he appealed to Yelverton “any number of times” to stop abusing the agreement. When Jordan got midnight complaints from his tenants, he relayed his threats of legal action to Yelverton and his predecessor managers. Jordan testified that Yelverton promised that no more parties would be held at the lodge, but he reneged. The testimony that the Society exercised no control over Unit 3 and Yelverton’s claim that he sought Unit 3’s permission before initiating any action on the lodge are insufficient to take the issue from the jury. Peterson v. First Clayton Bank &c., 214 Ga. App. 94, 100 (1) (447 SE2d 63) (1994) (questions of agency are ordinarily for the trier of fact).

2. The Society and Unit 3 maintain that the denial of their motion for a reduction in the verdict was error, arguing that the amount of damages did not conform to the evidence. The jury awarded Jordan $25,000 in general damages and specifically declined to award punitive damages.

In a nuisance action, recovery is authorized for damage to both person and property. OCGA § 41-1-4; City of Atlanta v. Murphy, 194 Ga. App. 652, 653 (1) (391 SE2d 474) (1990). “Unlawful interference with the right of the owner to enjoy possession of his property may be an element of damages.” (Punctuation omitted.) Roddenbery Farms v. Leverich, 192 Ga. App. 153 (384 SE2d 243) (1989). The measure of damages for discomfort, disrupted peace of mind, unhappiness and annoyance caused by a nuisance is for the enlightened conscience of the jury. Id. Light v. Mason, 225 Ga. App. 260, 261 (2) (483 SE2d 685) (1997).

Here, the trial court gave the general pattern charge on damages and charged on both nominal and general damages. Suggested Pattern Jury Instructions, Vol. I: Civil Cases (2nd ed. 1991), p. 79. As given, the charge did not preclude damages for discomfort, disrupted peace of mind, unhappiness and annoyance. None of the parties excepted or reserved objections to the charge. Smith v. State, 268 Ga. 42, 43 (2) (485 SE2d 189) (1997) (failure to object or reserve objections ordinarily waives right to raise issue on appeal). Because the jury heard evidence of Unit 3’s interference with Jordan’s right to enjoy possession of his property and his discomfort and annoyance and the unobjected-to jury form specifically authorized general dam ages, we cannot say the trial court abused its discretion in rejecting the claim of excessiveness. Leverich, 192 Ga. App. at 153; Valdosta Housing Auth. v. Finnessee, 160 Ga. App. 552, 553 (1) (287 SE2d 569) (1981); see Southern Cotton Oil Co. v. Thomas, 155 Ga. 99, 108 (8) (117 SE 456) (1923) (power to set aside award should be “very sparingly used”).

Decided March 24, 1998.

Self Mullins, Robinson, Marchetti & Kamensky, Lucius M. Layfield III, for appellants.

Grogan, Jones, Rumer & Gunby, Lee R. Grogan, for appellee.

3. The Society and Unit 3 contend that the decision to overrule their objection to Jordan’s Request to Charge No. 9 as confusing requires reversal. We disagree.

The charge stated, “though an act may be lawful, if, by reason of its location in a particular place it damages the property of another it is a nuisance.” As we read it, this charge implicates both parking and littering, acts rendered unlawful by the location in which they are committed. See OCGA § 16-7-43 (a) (3). Because this is a correct statement of the law, “sufficiently clear to be understood by jurors of ordinary capacity,” and supported by the evidence, we see no error. Dept. of Transp. v. Dalton Paving &c., 227 Ga. App. 207, 223 (9) (489 SE2d 329) (1997); Gatewood v. Hansford, 75 Ga. App. 567, 570 (44 SE2d 126) (1947); see also Galaxy Carpet Mills v. Massengill, 255 Ga. 360 (1) (338 SE2d 428) (1986). Notwithstanding the appellants’ contention to the contrary, we see nothing in the charge which provides the jury with an additional ground for awarding damages.

4. The trial court did not abuse its discretion in sustaining Jordan’s relevance objection to Wanda Watford’s testimony. Jeffers v. State, 263 Ga. 133, 134 (2) (429 SE2d 519) (1993). Watford’s testimony about parking problems which occurred two years after the actions at issue at another property Jordan owned was of marginal, if any, relevance. Nothing in her testimony directly impeached Jordan, who professed his ignorance of parking problems at the other property.

Judgment affirmed.

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

       Notwithstanding the potential for conflict inherent in this argument, this appeal is asserted jointly by the Society and Unit 3.

       The Society’s argument is further undermined by the fact that the same counsel represented them both at trial and in this appeal.

       The record showed that the parking blocked Jordan’s tenants’ ingress and egress to the point that they were threatening to leave.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A98A0312.
    BULLARD v. WEST STAR FINANCIAL CORPORATION.
    (500 SE2d 51)
   Eldridge, Judge.

On July 18, 1996, the plaintiff, Sparkle Bullard, filed a complaint in the Superior Court of Fulton County against West Star Financial Corporation (“West Star”) and two other financial institutions seeking unspecified damages for their threatened foreclosure of her real property. A summons dated the same day was issued by the trial court directing West Star to answer the complaint within 30 days of service of the summons.

According to the return of service, the complaint and summons were served upon Cindy J. Zidick of C.T. Corporation System (“CT”), as registered agent for West Star, on July 26, 1996. West Star did not answer and went into default. A default jury trial was held on November 13, 1996; West Star did not appear. The jury returned a verdict on the main case and the punitive damages. Judgment was entered on the jury verdict on November 14, 1996.

West Star filed a motion to set aside judgment, asserting lack of service of process, which was granted by the trial court. It is from this order setting aside the judgment against West Star that the plaintiff appeals. Finding no error, we affirm.

“The entry of service of the sheriff or his deputy imports verity. The return of service is not conclusive, but it is evidence of a high order as to the facts recited therein, and it may be traversed and impeached by proof that such facts are untrue. However, it can only be set aside by evidence which is not only clear and convincing but the strongest of which the nature of the case will admit.” (Citations and punctuation omitted.) Webb v. Tatum, 202 Ga. App. 89, 91 (413 SE2d 263) (1991); Wolfe v. Rhodes, 166 Ga. App. 845, 846-847 (305 SE2d 606) (1983); Rupee v. Mobile Home Brokers, 124 Ga. App. 86, 88 (183 SE2d 34) (1971). “Such proof may be presented, along with other evidence, in the form of sworn statements made on personal knowledge.” (Citations and punctuation omitted.) Kim v. Platt, 229 Ga. App. 92, 93 (493 SE2d 249) (1997); Hudson v. Williams, 188 Ga. App. 726, 727 (374 SE2d 220) (1988). “The burden to show error in matter reflected in a return of service is on the defendant.” (Citations and punctuation omitted.) Webb v. Tatum, supra at 91. “Where, as in this case, the trial court sat as the trier of jurisdictional issues of fact, absent legal error an appellate court is without jurisdiction to overturn factual findings supported by some evidence.” (Citation and punctuation omitted.) Wahnschaff v. Erdman, 216 Ga. App. 355, 356 (454 SE2d 213) (1995).

At the hearing on West Star’s motion to set aside judgment, it was undisputed that CT was the registered agent for service for West Star on July 26, 1996. On this date, Deputy Doster of the Fulton County Sheriff’s Department, who had been serving process for only about six or seven months, was assigned to the downtown zone, which included CT, for the purpose of making service of process. The downtown zone was not Deputy Doster’s normal zone. However, due to the Olympics, Deputy Doster had been re-assigned to this zone. Deputy Doster testified that he had no specific independent recollection of whom he served or what papers he served on July 26, 1996. Deputy Doster went on to testify that he did not know Zidick by sight at that time. Deputy Doster testified that, according to his logbook, he served process on CT in twenty different suits on July 26, 1996, one of which was this action. Deputy Doster testified that his normal procedure was to fill in his service log sheet, which indicated what papers he was serving at a specific location, while sitting in his car prior to serving the process and to leave his logbook in his car while he went into the building to make service.

Employees of CT’s Atlanta office admit processing 59 services of process on July 26, 1996, which included 19 services of process corresponding to entries on Deputy Doster’s log; it denied receiving service of process in this action. While Deputy Doster’s entry of service reflects that West Star was served by leaving a copy of the summons and complaint with Cindy J. Zidick, the uncontradicted evidence is that Zidick could not have received service of process because she was not even present at CT’s Atlanta office on July 26, 1996, due to scheduling changes caused by the Olympics; Zidick averred that she did not receive process in this action on July 26,1996, or on any other date. Moreover, Monique Jobes and Lynn MacDonald, the only other two employees authorized to accept service in CT’s Atlanta office on July 26, 1996, averred that they did not receive process for West Star in this action on July 26, 1996, or on any other date. In addition, CT’s business records of receipt and forwarding of process for the Atlanta office, which records were kept in the ordinary course of business and were created at the time process was received and forwarded by CT, indicated that CT did not receive process or forward process to West Star in this action on July 26,1996, or on any other date. Kenneth C. Knudson, president of West Star, averred that West Star never received the original or a copy of the complaint, summons, or any other pleading in this case.

Decided March 24, 1998.

Michael P. Froman, for appellant.

Powell, Goldstein, Frazer & Murphy, Jeffrey W. Kelley, Matthew J. Troy, for appellee.

The sworn affidavits and depositions submitted by West Star were “direct evidence and therefore sufficient to contradict the return of service.” Adair Realty Co. v. Parrish, 192 Ga. App. 681 (385 SE2d 770) (1989). We find that the evidence submitted by West Star was sufficient to support the trial court’s determination that West Star was not properly served with process.

Judgment affirmed.

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

       There has never been an actual foreclosure of the plaintiff’s property.

       The plaintiff argues that CT’s admission that it received 19 of the 20 services of process from Deputy Doster was an admission against interest and, therefore, under Earley v. Dyson, 220 Ga. App. 586 (469 SE2d 841) (1996), the standard of review for the appellate courts as to factual findings of the trial court would no longer be “some evidence,” but would be “clear and convincing evidence, the strongest of which the nature of the case will admit.” We disagree. Early, supra, simply holds that when a defendant makes an evidentiary admission against interest stating that he resides at a specific address and later attacks service of process made on him at that address, alleging that he did not reside therein, the defendant may contravene such admission against interest only with positive evidence, stating affirmatively where his place of residence was at the time of service. Negative evidence that the defendant resided elsewhere, without stating where he resided, is not sufficient.


text:
    A98A0331.
    GODWIN v. CALDWELL.
    (500 SE2d 49)
   Eldridge, Judge.

Defendant-appellant Charles Godwin appeals a jury verdict in favor of plaintiff-appellee Felicia Caldwell. We affirm.

Godwin owned a piece of residential property in Thunderbolt, Chatham County, that he rented to Caldwell in February 1992. Although Godwin testified that he had previously rented the property for $350 per month, it is undisputed that Caldwell’s rent was $200 per month. Godwin testified that his waiver of the additional $150 per month in rent was intended to be a credit toward Caldwell’s minor repair and general maintenance of the property. However, Caldwell testified that she expended several thousands of dollars in repairs and improvements on the property in reliance upon an agreement that she would have the right of first refusal when Godwin decided to sell the property.

In the spring of 1993, the parties agreed on a purchase price of $43,500 for the property. However, the sale did not take place; the facts are in dispute as to which party was responsible. Godwin subsequently received an offer of $44,500 for the property. On July 7, 1993, he wrote a letter to Caldwell which allegedly summarized their previous ongoing conversations about the sale of the property; the letter also included his assertion that Caldwell had been given the opportunity to purchase the property and had refused the offer. In this letter, Godwin also notified Caldwell that he had sold the property to another individual and that Caldwell must vacate the property by September 1, 1993.

Caldwell did not directly respond to Godwin’s letter, but instead immediately filed suit to compel Godwin to perform his alleged contract to sell the property to her for $43,500; in the alternative, she sought damages for breach of contract and unjust enrichment. A jury trial was held in November 1995. The jury found no breach of contract, but awarded Caldwell $9,000 in damages, finding that Godwin was unjustly enriched by Caldwell’s efforts to restore the property. Godwin moved for a new trial, which was denied, and he appeals.

In his sole enumeration of error, Godwin asserts that the trial court erred in denying his motion for new trial; such motion was premised upon the court’s failure to give a requested jury charge that recited the language of OCGA § 24-4-23. That statute provides as follows: “In the ordinary course of business, when good faith requires an answer, it is the duty of the party receiving a letter from another to answer within a reasonable time. Otherwise he is presumed to admit the propriety of the acts mentioned in the letter to his correspondent and to adopt them.”

In this case, following Godwin’s objection for failure to so charge the jury, the trial court responded, “I deliberately did not give that. I think mainly because I think the law ought to be that that presumption only applies between business men who have a regular course of dealings by letter and I’d like to see the law clarified in that respect. So I’ve got to give you something to appeal on if you lose.”

However, in construing this statute, this Court has previously held that “a strict mutual correspondence, in the sense of an exchange of several letters, is not always necessary. The statute refers to the ‘ordinary course of business,’ and the question is whether the evidence shows such a ‘due course of business’ as to warrant the application of this Code section. Western Union Tel. Co. v. Nix, 73 Ga. App. 184, 191 (3) (36 SE2d 111) (1945).” (Punctuation omitted.) Crotts Enterprises v. John Payne Co., 219 Ga. App. 173, 175 (464 SE2d 844) (1995). The phrase “due course of business” has been construed to apply “to those cases where two parties have carried on a mutual correspondence in reference to a particular matter, and one of the parties has written a letter to the other making statements concerning a subject of which the latter has knowledge, and which the latter would naturally deny if not true.” Western Union Tel. Co. v. Nix, supra at 191 (3). As such, the facts of this case support a finding that Godwin and Caldwell were involved in a course of business to which this statute would apply.

Decided March 24, 1998.

Duffy, Feemster & Lewis, Robert J. Duffy, John R. Strother III, for appellant.

Calhoun & Associates, Jonathan J. Hunt, for appellee.

Even so, this Court has held that “the requested charge was an incomplete statement of law. The presumption arising from a failure to answer a letter is not a presumption of law, but one of fact, and subject to explanation. The charge requested by [Godwin] was incomplete because it did not include any clarification that the presumption stated was not one of law but of fact and subject to explanation; in other words that it was a rebuttable presumption. Accordingly, we find no error.” (Citations and punctuation omitted.) Bakery Svcs. v. Thornton Chevrolet, 224 Ga. App. 31, 36 (8) (479 SE2d 363) (1996); Lyons Mfg. Co. v. Cedarbaum, 174 Ga. App. 218, 219-220 (329 SE2d 559) (1985).

Judgment affirmed.

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


author: Blackburn, Judge.

text:
    A98A0380.
    WILSON v. THE STATE.
    (499 SE2d 911)
   Blackburn, Judge.

Vincent J. Wilson appeals his conviction for possession of cocaine with intent to distribute. He contends the trial court erred in denying his motion for directed verdict because the evidence was insufficient to show he constructively possessed the cocaine. He also argues the court erred by allowing testimony regarding a prior conviction. Finally, Wilson claims the court should have granted his motion for new trial because his counsel was ineffective. For the reasons discussed below, we affirm.

On August 3, 1996, police officers spotted a suspected stolen car parked at 1012 Calvin Avenue, an apartment complex. As they were confirming that the car was stolen, the officers saw Wilson leave the apartment building. When they asked Wilson if he owned the car, he denied ownership, saying the car belonged to his cousin, a man later identified as Edward Townsend. Wilson told the officers that Townsend was inside the apartment. Wilson appeared “very nervous, sweating.” Wilson told the officers that he also lived inside the apartment and gave them permission to enter so they could question Townsend.

The officers found Townsend in the apartment bathroom. From just outside the bathroom, one officer saw a razor blade and two yellow lumps of what appeared to be crack cocaine on the sill of the open bathroom window. Upon noticing that the window screen was missing, the officer looked outside and saw on the ground just beneath the window several clear plastic packets containing suspected crack cocaine. The officers retrieved 30 individually packaged “rocks” which tested positive for cocaine. Although Wilson did not state that the cocaine was his, he gave a statement to police naming his cocaine supplier and said he would work with the police “in an effort to better himself.” Townsend, with whom Wilson was jointly indicted, pled guilty to possession with intent to distribute.

After obtaining a written consent to search from Townsend, the officers located a lease agreement showing that Townsend and Wilson had both rented the apartment on June 20,1996. Wilson testified that although he and Townsend rented the apartment together, he decided to move because he and Townsend shared the same parole officer, who would not let them live together. When cross-examined on this point, Wilson admitted he was on parole from a conviction for possession of cocaine. Wilson testified that he lived with his girl friend at the time of the incident.

1. Wilson first contends he was entitled to a directed verdict because the evidence was insufficient to support a finding that he was in constructive possession of cocaine. “[T]he test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Furthermore, on appeal of the overruling of a motion for directed verdict, an appellate court can consider all relevant evidence of record whether presented before or after the motion was made.” (Citations and punctuation omitted.) Love v. State, 227 Ga. App. 772 (490 SE2d 527) (1997); see also Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990).

Possession of contraband may be joint or exclusive, and actual or constructive. Lowe v. State, 223 Ga. App. 172, 173 (477 SE2d 341) (1996). Although Wilson testified that he did not in fact live in the apartment at the time of the incident, the State presented evidence that he admitted to police that he did live there. In addition, the State presented evidence that Wilson and Townsend were both named as lessees on the lease. Because the State presented evidence that Wilson was a lessee and occupant of the apartment in which the cocaine was found, this raised a rebuttable presumption that Wilson possessed the cocaine. Love, supra at 7-73; Whitfield v. State, 217 Ga. App. 402, 405 (3) (457 SE2d 682) (1995). Because Townsend was a member of Wilson’s immediate household, evidence of his access is not sufficient, as a matter of law, to rebut the presumption against Wilson and, therefore, does not demand an acquittal under the equal access rule. Love, supra at 773.

“Furthermore, there is no requirement that the State must in every case prove that contraband was in the exclusive possession of one who is shown to be the owner or lessee of the premises. While evidence that the defendant-owner or lessee sháred the premises with another does not demand a conviction, it may nevertheless authorize the jury, as the trior of fact, to find that the defendant was in at least joint possession of the contraband.” (Punctuation omitted.) Love, supra at 773. Thus, the jury was entitled to find that Wilson and Townsend were in joint constructive possession of the cocaine. This evidence is sufficient to meet the standard of proof required by Jackson v. Virginia, supra, and the trial court therefore did not err in denying Wilson’s motion for a directed verdict of acquittal. Love, supra at 773; Lowe, supra at 173.

2. Wilson testified at trial that he did not live in the apartment at the time of the incident. To support this claim, he testified that his parole officer would not let him live with Townsend, another parolee. On cross-examination, the State asked Wilson what he was on parole for. After the trial court overruled Wilson’s objection, Wilson stated that he was on parole for a prior conviction of possessing cocaine. On appeal, Wilson contends the trial court erred in allowing this evidence of his bad character.

This contention is without merit. Assuming that Wilson did not, merely by volunteering that he was on parole, place his character “in issue” within the meaning of OCGA § 24-9-20 (b) so as to permit rebuttal by the State, he nevertheless subjected himself to a thorough and sifting cross-examination by the State on that point. Weston v. State, 216 Ga. App. 806 (456 SE2d 214) (1995); Dowdy v. State, 209 Ga. App. 95, 96 (2) (432 SE2d 827) (1993). Such cross-examination was material because Wilson was attempting to use this testimony to support his claim that he did not reside at the apartment even though his name was on the lease. Accordingly, the prosecutor was entitled to inquire into the circumstances regarding Wilson’s claimed parole, and the trial court did not err in allowing this evidence or in denying Wilson’s motion for a mistrial.

3. Wilson contends that the trial court erred in denying his motion for new trial on the grounds of ineffective assistance of counsel. Wilson’s brief refers to testimony of his trial attorney at the hearing on the motion for new trial, but the record on appeal includes no transcript of that hearing. Nor did Wilson indicate in his notice of appeal that such a transcript was to be included with the record. Therefore, “we must presume that [Wilson] failed to meet his burden of proving the ineffectiveness of his trial counsel and that the trial court correctly denied the motion for new trial on this ground.” Sorrells v. State, 267 Ga. 236, 241 (476 SE2d 571) (1996).

Decided March 24, 1998.

William D. Kelly, Jr., for appellant.

J. Gray Conger, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A98A0398.
    PAUL v. THE STATE.
    (499 SE2d 914)
   Blackburn, Judge.

Travis Lee Paul appeals his convictions of two counts of simple assault. Paul contends that the evidence was insufficient to support the verdict.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Paul] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson [v. Virginia] is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” (Punctuation omitted.) Jester v. State, 229 Ga. App. 490, 493 (494 SE2d 284) (1997).

So viewing the evidence, the State established that Paul, a 43-year-old male, was living with his parents when he began making nonverbal threats toward them. Paul acted like he was shooting his parents between the eyes by pointing his index finger at them and making a noise like a gun going off. Paul also made slashing motions directed at his parents. Paul was trained in martial arts and was a marksman in the Special Forces. On one occasion, Paul put on his martial arts pants and swung a sword over a chair in the dining room. Mrs. Paul, who was home alone with the defendant when she witnessed these actions, became so afraid that she slept in the family-camper in the backyard. At trial, she admitted that she believed that if she had stayed in the house that night, the defendant would have hurt her.

Decided March 24, 1998.

Mario S. Ninfo, for appellant.

Alan A. Cook, District Attorney, William K. Wynne, Jr., Assistant District Attorney, for appellee.

Paul’s nonverbal threats became more frequent and more violent. Paul acted like he shot his parents, he kicked in the door to an outbuilding, and he kicked the side of his father’s truck. Each time that Mr. Paul confronted the defendant about drinking alcohol, he got violent. Mr. Paul was afraid that the defendant would hurt him or his wife. Mr. Paul testified that he was afraid that the defendant would either shoot them, cut them, or beat them. The evidence also established that the defendant had access to guns and knives in the house.

Pursuant to OCGA § 16-5-20 (a), “[a] person commits the offense of simple assault when he either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.” It is a jury question as to whether the victims’ apprehension was reasonable. See Richards v. State, 222 Ga. App. 853, 855 (1) (c) (476 SE2d 598) (1996). In the present case, both victims testified that they were afraid of Paul and that he had the capability of carrying out what he was threatening. See McGee v. State, 165 Ga. App. 423, 425 (3) (299 SE2d 573) (1983) (victim’s testimony that she felt she was in tremendous danger, combined with other circumstances, supported conviction for simple assault). Therefore, having reviewed the record in the light most favorable to the verdict, we conclude that a rational trier of fact could have found Paul guilty of simple assault beyond a reasonable doubt. See Jackson v. Virginia, supra.

Judgment affirmed.

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


text:
    A98A0404, A98A0405.
    WARE et al. v. RENFROE et al.; and vice versa.
    (499 SE2d 907)
   Eldridge, Judge.

This is an appeal and cross-appeal from a final order and judgment entered by the State Court of Glynn County in a breach of contract action. On September 1, 1995, sellers Patricia N. Renfroe and Charles H. Renfroe (“Renfroes”) contracted in writing to sell their home on St. Simons Island to buyers Mary Chiles Ware and H. Hall Ware III (“Wares”) for $285,000. The Wares paid the Renfroes $5,000 in earnest money upon execution of the contract. The contract provided that the closing date would be “as soon as practicable” after the sale of the Wares’ home in Atlanta. The contract also provided that, if the Wares had not sold their home by November 30,1995, the closing date could be extended until February 29, 1996, upon payment of an additional $5,000 in earnest money.

On November 1,1995, the parties executed an amendment to the sales contract, which provided that the Wares would become tenants of the St. Simons home upon payment of $1,500 in monthly rent, with a portion of the rental payments being applicable to the purchase price of the home. In addition, the written amendment waived all contingencies to closing contained in Section 13 of the original sales contract. Further, the amendment provided that “[c]ommencing November 1, 1995, the Buyer, as Tenant, shall be solely responsible for all maintenance and utilities of the property.”

On December 14, 1995, Mr. Ware wrote a letter to the Renfroes, which read as follows: “This letter confirms our telephone conversation whereby you agreed to defer until January 2, 1996 the $5,000 earnest money payment due on December 1, 1995 under our contact [sic] to purchase the house at 1801 Bruce Drive. Your agreement to defer this payment does not constitute a waiver of any right or remedy available to you under the terms of the contract. The deferred payment will bear interest at 10% per annum from December 1, 1995 until paid.”

The Wares failed to pay the additional $5,000 in earnest money on January 2, 1996; the Wares also failed to close on the home by February 29, 1996, although the Renfroes continued to honor the contract extension until that time. On March 1, 1996, after the contract extension had expired, Mr. Ware wrote to the Renfroes and offered to pay $255,000 for the home, $30,000 less than the sales contract price. The same letter again confirmed that the Wares owed the Renfroes $5,000 in additional earnest money, plus interest from December 1, 1995, and proposed a third payment of $5,000 in earnest money “to extend the contract on the existing terms to June 30, 1996.” The Renfroes refused to lower the sales price and continued to demand the overdue $5,000 in earnest money; they also demanded an additional payment of $5,000 in earnest money to secure another extension of the sales contract. On March 5, 1996, when the Wares failed to pay the overdue earnest money or to extend the contract, the Renfroes demanded that the Wares vacate the property. The Renfroes also demanded that the Wares, as holdover tenants, “continue to maintain the premises, including the swimming pool and grounds, in a condition equal to the condition in which the premises were maintained at the time you entered occupancy.” The Wares vacated the property on April 6, 1996, after failing to pay the rent due on April 1, 1996.

The Renfroes filed suit for breach of contract on June 12, 1996, seeking the $5,000 in earnest money that was due on January 2, 1996; rent money for the first six days of April 1996; and other money damages. The Wares counterclaimed, asserting that the Renfroes owed them money for funds expended to repair and maintain the property during the rental period of November 1, 1995 through April 6, 1996. Both parties moved for summary judgment on their claims. On July 14, 1997, the trial court granted summary judgment to the Renfroes on both the claim and counterclaim, awarding the Renfroes $5,000, plus $41.66 in prejudgment interest at the contract rate of ten percent per annum, and costs of $89; no rent money was awarded. Both parties appealed the judgment.

Case No. A98A0404

1. In their first two enumerations, the Wares assert that the trial court erred in denying their motion for summary judgment, while granting the Renfroes’ motion for summary judgment, on the breach of contract claim. We disagree.

The facts clearly show that the parties entered into a written sales contract with an expiration date of November 30, 1995, which allowed the contract to be extended until February 29, 1996, upon payment of an additional $5,000 in earnest money; that the sales contract was amended in writing on November 1, 1995, to eliminate the sales contingencies of the original contract and to establish a rental agreement between the parties; that the Wares promised to pay the additional earnest money in exchange for an extension of the contract until February 29, 1996, but requested that the Renfroes defer such payment until January 2, 1996; that the Renfroes orally agreed to such deferral but expressly retained all of their legal rights under the contract; and that, in reliance on the Wares’ promise to pay the additional earnest money plus interest, the Renfroes remained bound under the sales contract and refrained from selling the property to another until after the contract extension expired on February 29, 1996. Further, the facts show that the Wares failed to close on the property by February 29, 1996, and that the Wares never paid the overdue earnest money, even though the Renfroes had fully performed their part of the bargain by keeping the property off the market.

However, on appeal, the Wares assert that the sales contract was never extended beyond November 30, 1995, because they had never actually paid the $5,000 due under the contract. This Court finds such assertion entirely without merit and offensive to long-standing legal and equitable principles. Under the doctrine of promissory estoppel, “[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee . . . and which does induce such action or forbearance is binding. . . .” OCGA § 13-3-44 (a); Insilco Corp. v. First Nat. Bank of Dalton, 248 Ga. 322 (1) (283 SE2d 262) (1981); see also Gen. Communications Svc. v. Ga. Public Svc. Comm., 244 Ga. 855, 856 (262 SE2d 96) (1979); Pethel v. Waters, 220 Ga. 543, 552 (140 SE2d 252) (1965). The oral amendment to allow the additional earnest money to be paid at a later date for the written extension of the contract was reasonable reliance under the circumstances. W. R. Grace & Co. v. Taco Tico Acquisition Corp., 216 Ga. App. 423, 426 (1) (454 SE2d 789) (1995); Fidelity & Deposit Co. v. West Point Constr. Co., 178 Ga. App. 578 (344 SE2d 268) (1986). As such, under the facts of this case, the Wares were bound to pay the promised $5,000 in earnest money, plus interest.

Further, the Wares clearly extended the sales contract when they promised to pay the earnest money by January 2, 1996. Once the Renfroes agreed to defer the payment, both parties were bound both to the agreement to defer the earnest payment and to the terms of the sales contract. See Atlanta Six Flags Partnership v. Hughes, 191 Ga. App. 404, 407 (381 SE2d 605) (1989). As such, this case is clearly distinguishable from Floyd v. Morgan, 60 Ga. App. 496 (4 SE2d 91) (1939), cited by the Wares. Floyd, supra, held that, under an option contract which required at least partial payment for the property as a condition precedent to exercising a purchase option, mere notice that one intends to exercise the option was insufficient to bind the purchaser to the contract, as long as one had not received the benefits of the contract. In this case, the Wares expressly promised to pay the earnest money on January 2, 1996, and thereby received the benefits from the extension of the exclusive, non-contingent sales contract. Therefore, the actual failure to make the promised payment did not relieve the Wares from their contractual obligations.

Further, the Wares’ assertion that they are not bound by their asserted “oral” promise to pay the second earnest payment because such promise did not satisfy the Statute of Frauds is meritless. Under OCGA § 13-5-30 (4), Mr. Ware signed a letter expressly confirming the terms of the oral amendment to the written extension, i.e., the oral promise to defer payment of the additional earnest money, including the promise to pay interest from December 1,1995. Indus. Welding &c. Supplies v. C.I.T. Corp., 157 Ga. App. 611 (278 SE2d 50) (1981). In addition, the facts clearly show that the Renfroes fully performed under the contract in reliance on the Wares’ promise to pay the earnest money. See OCGA § 13-5-31 (2); Alkaril Chemicals v. O’Lenick, 202 Ga. App. 230 (414 SE2d 257) (1991).

As such, the evidence presented no jury issue as to whether the Wares were required to pay the $5,000 in additional earnest money plus interest thereon, or whether they failed to make such payment. Therefore, the trial court did not err in granting summary judgment to the Renfroes. OCGA § 9-11-56; Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2. The Wares also assert that the trial court erred in granting the Renfroes’ motion for summary judgment on the Wares’ counterclaim for reimbursement of repair and maintenance expenses. However, under the express terms of the sales contract amendment, which was executed on November 1, 1995, the Renfroes agreed to rent the property to the Wares for $1,500 per month from November 1, 1995, until the sales contract could be closed, and the Wares agreed to be solely responsible for the maintenance of the property during such rental period. Accordingly, this enumeration is without merit.

Case No. A98A0405

3. In their cross-appeal, the Renfroes assert that the trial court erred in awarding only $41.66 in prejudgment interest on their claim for the unpaid earnest money. The express terms of the agreement between the parties provided that the Wares would pay “10% per annum” on the $5,000 earnest money payment beginning December 1, 1995, until it was paid. Having found in Division 1, supra, no jury issue existed as to whether the Wares owed the $5,000 payment plus ten percent interest per annum to the Renfroes under the contract, as well as under the principle of promissory estoppel, this Court finds that the trial court erred in failing to award such interest for the period from December 1, 1995, until the final judgment was rendered. See also OCGA §§ 7-4-2 (a) (1) (A); 7-4-15; Consulting Constr. Corp. v. Edwards, 207 Ga. App. 296 (427 SE2d 789) (1993); TypoRepro Svcs. v. Bishop, 188 Ga. App. 576, 579 (2) (373 SE2d 758) (1988). Therefore, we vacate the judgment as to the trial court’s award of prejudgment interest and remand for a recalculation of prejudgment interest in a manner consistent with this opinion.

4. The Renfroes also assert that the trial court erred in failing to award a rental payment for the period between April 1 through 6, 1996, during which time the Wares admittedly occupied the premises without paying rent, as well as prejudgment interest thereon. We agree.

No jury issue existed as to how much rent was owed by the Wares, whether the Wares owed such rent, or whether they failed to make such rental payment. Therefore, the trial court abused its discretion in failing to award rent to the Renfroes in the amount of $50 per day, or $300 total. Further, as the amount of rent due was fixed and ascertainable under the rental agreement, the Renfroes were entitled as a matter of law to prejudgment interest on the unpaid rent for the period of April 6, 1996, until the final judgment. OCGA § 7-4-15; Consulting Constr. Corp., supra; Typo-Repro Svcs. v. Bishop, supra; see also In re Central of Ga. R. Co., 47 FSupp. 786 (S.D. Ga. 1942). This case is remanded with directions to enter a judgment in the amount of $300 plus prejudgment interest at the legal rate of seven percent per annum. OCGA § 7-4-2 (a) (1) (A).

Decided March 24, 1998.

Gilbert, Harrell, Gilbert, Sumerford & Martin, Monroe L. Frey, H. Hall Ware III, for appellants.

Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling, for appellees.

Judgment affirmed in part and vacated and remanded in part for disposition in accordance with this opinion.

McMurray, P. J., and Blackburn, J., concur.


text:
    A98A0690.
    MULLINAX v. THE STATE.
    (499 SE2d 903)
   Blackburn, Judge.

Michael Jason Mullinax appeals his conviction after a bench trial of DUI. Mullinax contends that the trial court erred in denying his motion for plea in abatement and that the State failed to lay the proper foundation for the admission of the State-administered breath test.

1. Mullinax asserts that the State’s proof did not meet the allegations contained in the accusation. The accusation charged that on June 5,1996, Mullinax was “driving with an unlawful alcohol concentration by being in actual control of a moving vehicle while having an alcohol concentration of 0.10 grams or more at anytime within three hours after such control from alcohol consumed before such control ended in violation of OCGA § 40-6-391 (a) (5).” Mullinax argues that on June 5, 1996, OCGA § 40-6-391 (a) (5) proscribed driving while under the influence of marijuana, and that therefore, the accusation contained a fatal variance. Not only is this issue without merit because the description of the offense charged prevails over any Code section cited, see Phillips v. State, 215 Ga. App. 526 (2) (451 SE2d 517) (1994), Mullinax also failed to properly preserve the issue by waiving any objections to the form of the accusation. See id. (“[a]n alleged variance between the offense as named or the Code section cited and the allegations specified in the indictment goes only to the form of the indictment”).

2. Mullinax enumerates as error the trial court’s admission of the testing certificates for the Intoxilyzer 5000 without requiring the proper foundation pursuant to the business records exception to the hearsay rule, OCGA § 24-3-14.

In Brown v. State, 268 Ga. 76, 80-81 (485 SE2d 486) (1997), the Supreme Court of Georgia held that “breath-testing device certificates are records made within the regular course of the business within the meaning of OCGA § 24-3-14 and may, upon the proper foundation being laid, be introduced into evidence under the business record exception to the hearsay rule.” OCGA § 24-3-14 (b) provides that “[a]ny writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, ... if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, ... or within a reasonable time thereafter.”

In the present case, Trooper Mitchell testified that he was familiar with the actual book in which the records were maintained, where the book was maintained, and that it contained documents prepared by Trooper Bobby Beall whose job it was to maintain and calibrate the Intoxilyzer 5000 machines. Trooper Mitchell also testified that he did not know if the documents were made contemporaneously with the testing. He further agreed that the extent of his knowledge regarding the certificates is that he knows where they are kept and that he had seen them at different points in time.

The evidence presented in this case is not significantly different from that presented in Hamilton v. State, 228 Ga. App. 285, 287 (491 SE2d 485) (1997), wherein we found that the result of the breath test was erroneously admitted. In Hamilton, the State introduced testimony describing the certificates and “showing that they were maintained in the log book for the Intoxilyzer 5000.” (Punctuation omitted.) Id. In the present case, Trooper Mitchell was unable to provide additional information satisfying the foundational requirements of OCGA § 24-3-14. Therefore, the trial court erroneously admitted the results of Mullinax’s breath test and his “per se” DUI conviction must be reversed. See id. See also Daniel v. State, 227 Ga. App. 92 (488 SE2d 129) (1997); Brahm v. State, 230 Ga. App. 407 (497 SE2d 240) (1998).

Judgment reversed.

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

Decided March 24, 1998.

William C. Head, for appellant.

John H. Cranford, Solicitor, for appellee.


text:
    A98A0715.
    BRACKETT v. CARTWRIGHT.
    (499 SE2d 905)
   Eldridge, Judge.

On March 5,1996, in the Superior Court of Clark County, Wayne F. Brackett, plaintiff-appellant, filed a dispossessory warrant against his tenant, Marion L. Cartwright, defendant-appellee, for the property leased at 585 South Harris Street, Athens, contending that the defendant owed rent in the amount of $22,635.43 and overdue ad valorem taxes in the amount of $8,957.34. The defendant answered, denied such allegations, and demanded a jury trial. A copy of the lease was attached to the verified answer.

The lease, which began in 1970, ran for a term of twenty-five years and had a renewal provision for two additional ten-year periods; the initial rent was $450 per month. Rent increased to $475 in the first renewal period and to $500 for the second renewal period. The plaintiff agreed in the lease to pay the ad valorem taxes for 1970 and thereafter at the 1970 tax amount, while the defendant agreed to pay any increase in the ad valorem tax above such amount.

The building burned in December 1970, and the plaintiff did not rebuild on the property until 1977 or 1978; the parties orally departed from the written lease by reducing the rent by $200 per month until the rebuilding. Prior to 1978, the defendant paid no increase in taxes above the 1970 ad valorem taxes. After the rebuilding, the parties orally agreed to divide the taxes differently from the terms of the lease. Plaintiff orally agreed to pay the ad valorem taxes on the land, and the defendant orally agreed to pay the taxes on the new improvements. However, even though the taxes on the land alone went up, the defendant did not pay any increase in the taxes on the land alone above the 1970 level of ad valorem taxes as provided in the lease.

In 1978, plaintiff wrote the defendant and requested that he pay the amount of the tax increases for the prior years. The defendant allegedly requested copies of the tax bills, but the plaintiff contended that he never received the requests for the tax bills. Although the defendant did not pay the tax increases during the term of the lease, the plaintiff did nothing to make further demand or to collect the alleged arrearage for taxes until the defendant sought to renew the lease on April 14, 1994.

On July 13,1994, the plaintiff gave the defendant’s lawyer specification of deficiencies and notice of default, on the original lease, with 30 days to cure the default under the terms of the lease. On August 14, 1994, after the lapse of 30 days with no cure of the default, plaintiff declared a default and demanded immediate possession. On March 5, 1996, the plaintiff commenced this action on the original lease.

At the close of plaintiff’s case, the defendant moved for a partial directed verdict as to damages that had accrued prior to March 6, 1976, because the claim was barred by the statute of limitation. The trial court granted the motion. The plaintiff, at the close of all the evidence, moved for directed verdict as to the right of possession as a result of default, which the trial court denied.

On August 20, 1997, the jury awarded the plaintiff $15,551.95, but found that the plaintiff was not entitled to recover possession of the leased premises. Judgment was entered on August 20, 1997. Plaintiff filed his notice of appeal on September 17, 1997.

1. Plaintiff’s first enumeration of error is that the trial court erred in granting a partial directed verdict for the defendant. We do not agree.

“The standard for directed verdict and j.n.o.v. is the same. ‘Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.’ Pendley v. Pendley, 251 Ga. 30 (302 SE2d 554) [(1983)].” Rockdale Body Shop v. Thompson, 222 Ga. App. 821, 822 (1) (476 SE2d 22) (1996).

Plaintiff is correct that the defendant failed to raise the statute of limitation, an affirmative defense, either in the answer or the pretrial order. The pre-trial order reads in part that it “supersedes the pleadings which may not be further amended except by order of this court to prevent manifest injustice.” However, OCGA § 9-11-15 (b) provides that, at trial, the pleadings are deemed automatically amended to conform to the evidence that has been admitted without objection; therefore, an affirmative defense may be asserted for the first time at trial. See Borenstein v. Blumenfeld, 250 Ga. 606 (299 SE2d 727) (1983); McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510 (250 SE2d 424) (1978); Rockdale Body Shop v. Thompson, supra; Gresham v. White Repair &c. Co., 158 Ga. App. 235 (279 SE2d 528) (1981). “As a general rule, a pretrial order, when entered, controls the subsequent course of the action and serves to limit the issues for trial, unless modified at trial to prevent manifest injustice. OCGA § 9-11-16 (b). However, OCGA § 9-11-16 (b) (Rule 16 (b)) must always be considered in light of the mandatory provisions of OCGA § 9-11-15 (b) (Rule 15 (b)). (Emphasis in original.) Carreras v. Austell Box Board Corp., 154 Ga. App. 135, 138 (2) (267 SE2d 792) [(1980)].” (Punctuation omitted.) Rockdale Body Shop v. Thompson, supra at 822 (2). Therefore, the pleadings were automatically amended to conform to the evidence, and OCGA § 9-3-23, regarding the statute of limitation, attached as to claims prior to March 1976. The evidence was not in dispute as to this issue. As such, the trial court did not err in granting a partial directed verdict.

2. The second enumeration of error is that the trial court erred in denying the plaintiff’s motion for a directed verdict returning possession of the property in question to the plaintiff. We do not agree.

OCGA §§ 13-4-4 and 13-4-5 are raised by the evidence, because the express terms of the contract, without amendment, were mutually departed from regarding the rent and the way the taxes were to be calculated and paid. This went on for a substantial period of time. Defendant never paid the tax increase on the land, and after 1978, the plaintiff took no action until the defendant sought to exercise the option to renew.

Paragraph 14 of the lease provides that notice of default must be given with an opportunity to cure. It provides that the lessee must receive written notice of any termination during default; however, the lease does not specify how notice shall be made upon the lessee. Thus, there was a conflict in the evidence, and a jury question existed as to whether or not notice to the defendant’s lawyer was reasonable notice of default and provided an opportunity to cure.

If there is any conflict in material issues, then a directed verdict is not proper. “The standard of appellate review of a trial court’s denial of a directed verdict motion is the ‘any evidence’ standard. Mattox v. MARTA, 200 Ga. App. 697, 698 (1) (409 SE2d 267) [(1991)].” Rockdale Body Shop v. Thompson, supra at 822 (1). Under such standard, the trial court did not err in denying plaintiff’s motion for directed verdict as to this issue.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Decided March 24, 1998.

David W. Griffeth, for appellant.

Alan M. Alexander, Jr., for appellee.

       OCGA § 44-6-100 (a) creates an estate for years; under this lease for more than 20 years, made under seal, it is an estate. Ward v. McGuire, 213 Ga. 563 (100 SE2d 276) (1957). Where certain terms of usage of the leasehold interest are placed upon the lease or the lease is for less than five years, then the lease passes a usufruct only, which could be an installment contract. Camp v. Delta Air Lines, 232 Ga. 37 (205 SE2d 194) (1974). An estate for years does not come under OCGA § 13-6-14 as an installment contract; therefore, Thimble Square v. Frost, 221 Ga. App. 379 (471 SE2d 305) (1996) is inapplicable to this case. Further, Wall v. C & S Bank, 153 Ga. App. 29, 31 (264 SE2d 523) (1980), was decided not under OCGA § 13-6-14, which is applicable to installment contracts, but under the Uniform Commercial Code, which is applicable to notes and other negotiable instruments. OCGA §§ 11-3-105; 11-3-109; 11-3-603. Thus, the statute of limitation commenced to run on each rental payment as it became due.


author: Birdsong, Presiding Judge.

text:
    A97A2157.
    ASHKOUTI v. WIDENER et al.
    (500 SE2d 337)
   Birdsong, Presiding Judge.

Gerald J. Ashkouti appeals the grant of summary judgment to Patricia Marie Widener and Janet Widener Sims, individually and as Trustees of the Item VI Trust of the will of Marie Louise Brown Widener (“the Trustees”). Ashkouti claimed that, after agreeing to sell him certain property owned by the Trust, the Trustees breached their agreement with him by selling the property to another. The Trustees contend, however, that the agreement with Ashkouti had expired before they sold the property.

The record shows the Trustees initially agreed to sell Ashkouti approximately 66 acres of land for $3,000,000 with a closing date to be designated by Ashkouti that would be no later than 90 days after the end of a six-month inspection period. Under the original agreement, the effective date of the agreement was April 11, 1994, the inspection period would have ended October 11,1994, and the closing would have been no later than January 9, 1995.

Subsequently, on August 1, 1994, however, the parties amended the agreement as follows: ‘Whereas the parties do agree to amend the contract for the rezoning of 38 acres (more or less) known as tract No. 2 . . .to residential multi-family (RM). The parties agreed that if the County zones the property RM-13 that the purchase price of three million dollars ($3,000,000) shall be the acquisition price. In the event the property is zoned RM-10 the purchase price of two million eight hundred thousand ($2,800,000) shall be the acquisition price. The remainder of the property as presently zoned is acceptable to Purchaser and shall not be submitted for any zoning change. The cost of zoning shall be at the expense of Purchaser and Sellers shall cooperate in necessary documents for the subject zoning.”

Then, on August 2, 1994, the parties also agreed to amend paragraph 9 (a) of the original agreement regarding the inspection period: “The parties agree to extend the ‘inspection period’ stipulated per Paragraph 9 (a) to forty-five (45) days from the date of the official execution of the zoning to RM-10 or RM-13 as per the decision of the Gwinnett County Commissioners.” Neither the original agreement nor the amendments addressed what might happen if rezoning was denied or if rezoning was to some other classification. The agreement provided, however, that the parties might waive any unsatisfied conditions that had been imposed for their benefit and proceed with the. closing.

The parties apparently were doing just that until the County refused to rezone the property. Then, when the closing did not take place within 45 days after the county’s action, the Trustees elected to consider the agreement terminated, to return the earnest money to Ashkouti, and to sell the property to another purchaser for $3,200,000. Although Ashkouti wrote the Trustees, advising them they had anticipatorily breached the contract, stating that he had waived the zoning condition, and demanding that they rescind the termination, no response was received.

The real estate agent representing the Trustees testified at his deposition that he sent the letter withdrawing the sales agreement because he determined that 45 days had passed after the rezoning decision and no closing had taken place. After the rezoning decision, however, the parties continued to negotiate a possible amendment to the sales agreement, and as late as April 6, 1995, the Trustees sent Ashkouti a proposed amendment to the original agreement. This proposed amendment referred to the original sales agreement and the other amendments thereto and stated that the parties desired to further amend the agreement. The proposed amendment, among other items, sought to modify the purchase price and the terms of payment and to provide that the sale would close on or before June 1, 1995. The record also shows that the realtor representing the Trustees offered to sell the property to other potential purchasers in January 1995, and began negotiations with the party who finally bought the property sometime in the first week of April 1995, and that a final agreement on that sale was reached on April 14, 1995.

Ultimately, Ashkouti sued the Trustees for breach of the agreement and expenses of litigation under OCGA § 13-6-11, and after discovery, both parties moved for summary judgment.

The Trustees contended the contract terminated 45 days after the county refused to rezone the property, that the failure to rezone terminated the contract, and that the contract was unenforceable because no purchase price was set forth in the agreement. Ashkouti contended, however, that according to the terms of the contract there was a closing period of 90 days after the end of the inspection period, that the zoning condition was one for his benefit that could be waived, and that a price of $3,000,000 was specified in the purchase agreement.

Thereafter, the trial court denied Ashkouti’s motion for summary judgment and granted the Trustee’s motion. This appeal followed. Held:

1. Construction of a plain and definite contract is a question of law for the court (OCGA § 13-2-1; Crooks v. Crim, 159 Ga. App. 745 (285 SE2d 84)) susceptible to disposition by summary judgment. Atlanta Six Flags Partnership v. Hughes, 191 Ga. App. 404, 407 (381 SE2d 605). The standards applicable to motions for summary judgment generally are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. “The cardinal rule of construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.” OCGA § 13-2-3. Further, “[t]he construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.” OCGA § 13-2-2 (4).

Considering the terms of the purchase agreement in light of these principles, we find that the trial court erred by granting summary judgment to the Trustees. Although the parties in drafting amendment 3 apparently did not contemplate that rezoning might be denied, it is apparent from the conduct of both parties that they intended that the amendment provided for an inspection period of 45 days after the county’s action on the zoning request. OCGA §§ 13-2-2 (4) and (6); 13-2-3. Therefore, we find that under paragraph 9 (a), as amended, the inspection period ran through April 14, 1995, and thus under paragraph 5 (a) of the agreement, which was not modified by the later amendments, Ashkouti had until 90 days after the end of the inspection period to close the purchase. Therefore, under the facts and the agreement in this case, as amended, Ashkouti had until July 12, 1995, to close on the property. Accordingly, the sales agreement had not terminated at the time the Trustees notified Ashkouti that the purchase agreement was terminated and returned the earnest money.

3. Further, we also agree with Ashkouti that a purchase price was specified in the agreement. Although the amendments to the agreement did specify different purchase prices depending upon the zoning change made by the county, Ashkouti points out that he, under the terms of the agreement, could waive the zoning condition because that condition was placed in the agreement for his benefit. Brack v. Brownlee, 246 Ga. 818 (273 SE2d 390). We find that position well taken. A party to a contract may waive contractual provisions which are to his benefit. Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 257 (381 SE2d 322). Even though both parties wished to amend the sales agreement regarding the rezoning, the amendment was for Ashkouti’s benefit because it provided for a reduced purchase price in the event the rezoning was less favorable than requested. Under these conditions, Ashkouti was authorized to waive the amendment concerning the rezoning. Once that amendment was waived, the purchase price of $3,000,000 as specified in the original agreement remained as the acquisition price for the property. Accordingly, the Trustees’ contention regarding the failure of the agreement to contain a purchase price is without merit.

Decided February 23, 1998

Reconsideration denied March 25, 1998

Schreeder, Wheeler & Flint, John A. Christy, Debbie A. Wilson, for appellant.

Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., for appellees.

Accordingly, the grant of summary judgment must be reversed.

4. As Ashkouti did not enumerate as error the denial of his motion for summary judgment, that issue is not before us. Accordingly, the case must be remanded to the trial court for further proceedings in accordance with this decision.

Judgment reversed.

Ruffin and Eldridge, JJ, concur.


author: Ruffin, Judge.

text:
    A97A2234.
    BOOTH et al. v. ESSEX INSURANCE COMPANY et al.
    (498 SE2d 528)
   Ruffin, Judge.

Kevin Helms, while living and working at Project Adam Community Assistance Corporation, Inc. (“Project Adam”), a residential facility for recovering alcohol and drug addicts, was killed by another resident of the facility. Judith Booth, individually and as administratrix of Helms’ estate, filed a wrongful death action against Project Adam. At the time of the murder, Project Adam was insured by Essex Insurance Company. Essex filed the instant declaratory judgment action raising the issue of coverage, and Booth intervened. After a bench trial, the superior court ruled that due to an exclusion in the policy, there was no professional liability insurance coverage because Helms was an employee of the facility whose death arose out of and in the course of his employment. Booth appealed, and for the following reasons, we affirm.

This Court reviews the trial court’s finding of fact under the “any evidence” standard. See Kingston Dev. Co. v. Kenerly, 132 Ga. App. 346, 348 (1) (208 SE2d 118) (1974); Pinkerton & Laws Co. v. Atlantis Realty Co., 128 Ga. App. 662, 665 (1) (197 SE2d 749) (1973) (clearly erroneous standard set forth in OCGA § 9-11-52 is same as any evidence standard).

The record reveals that Helms first entered Project Adam in May 1991 as a patient/resident. Helms graduated from the program and moved out of the residential facility in February 1992. However, several months later he asked to return. Project Adam allowed him to move back, but since he had graduated from the recovery program, it did not treat him as a “client.” Instead, he was given “all the responsibilities that other people had who worked for Project Adam.”

From the time of his return to the facility, in April 1992, to the time of his death on July 4, 1992, Helms assumed various work responsibilities. For example, he was a cook for Project Adam, for which he received a $60 reduction in his rent. His duties in this capacity included assisting in the preparation of meals and the grocery lists. He was allowed access to the kitchen, a privilege not afforded mere residents of the facility. In addition, Helms drove the Project Adam van, another privilege or duty afforded only to the Project Adam staff. On the July 4 weekend when Helms was killed, he had the responsibility of overseeing the facility while the other staff members were away. He was in charge of Bernard Christie, his assailant, and another resident who stayed at the facility over the weekend. Helms was required to prepare the meals for himself and the two residents.

Sometime on July 4, while Helms was in the kitchen, Christie stabbed Helms to death with a steak knife. Helms was found on the floor of a closet in the kitchen the next day. On the kitchen counter was a box of chicken; some chicken had been removed from the box. The investigating officer said that it appeared as if Helms or someone was planning to prepare some chicken to eat. Christie admitted to murdering Helms.

In holding there was no coverage, the superior court looked to the policy’s exclusionary language that provided that the policy did not apply to “bodily injury to any employee of the INSURED arising out of, and in the course of his employment by the INSURED.” In appealing, Booth argued that Helms was (1) not an employee, (2) that his actions did not arise out of employment, and (3) that he was not in the course of employment when he was killed.

The first issue we address is whether any evidence supported the superior court’s determination that Helms was an employee of Project Adam. In support of her argument that Helms was not an employee, Booth noted that Helms had no contract of employment with Project Adam, was not listed as an employee on state and federal quarterly wage reports, and Project Adam had no W-4 forms, W-2 forms, 1099 forms or employment benefit records for him.

“Employment means the existence of the relationship of master and servant. [Cit.] In determining the existence of the relationship, the main consideration is the right of the employer to control the activities of the employee in the employment duties. [Cits.]” Metro. Life Ins. Co. v. Forsyth, 122 Ga. App. 463 (177 SE2d 505) (1970). “The main tests are whether the master is granted or assumes the right to control the time, manner, means, and method of executing the work, and whether the master has the right to discharge the servant. [Cits.]” Housing Auth., City of Cartersville v. Jackson, 226 Ga. App. 182, 183 (2) (486 SE2d 54) (1997). Another issue to be considered is whether the master receives a benefit from the servant’s actions. Id. at 184.

Even though Helms lived at the facility, he was not considered a resident since he had graduated from the program. Helms was more than a mere resident; he cooked and purchased groceries for the residents, drove the Project Adam van to purchase groceries and transport residents and supervised the facility and the residents on occasion. In exchange for these services, which benefited Project Adam, he received compensation: a reduction in his rent. Project Adam controlled what duties Helms performed as well as the manner in which he performed them. Accordingly, there was some evidence to conclude that Helms was an employee under the common law definition of the term.

This is true even though Project Adam did not have a written contract of employment with him, did not have employment tax forms or employment benefit records for him and he was not listed as an employee on state and federal quarterly wage reports. In Jackson, supra, this Court ruled that payment of compensation is not mandatory to prove an employer/employee relationship under common law or the Workers’ Compensation Act. While compensation is one factor to be considered, it is not dispositive of the issue of whether a person is an employee. Jackson, supra at 184. Just as compensation is one factor to consider, the existence or absence of tax forms, wage reports, etc. is relevant in determining the existence of an employer-employee relationship, but is not dispositive of the issue. See id.

In addition, for the policy exclusion to apply, Helms’ death had to arise out of his employment. Georgia has adopted the positional risk theory of “arising out of employment.” Nat. Fire Ins. Co. v. Edwards, 152 Ga. App. 566 (1) (263 SE2d 455) (1979). This theory provides that for an “injury to be compensable it is only necessary for the claimant to prove that his work brought him within range of the danger by requiring his presence in the locale when the peril struck, even though any other person present would have also been injured irrespective of his employment.” Id. at 567. Without doubt, Helms’ duties to oversee the Project Adam facility over the July 4 weekend placed him within the range of the danger, i.e., Bernard Christie. Because Helms was responsible for supervising Christie and the Project Adam facility, his job duties placed him in the range of danger under the positional risk theory, so his death arose out of his employment.

The third part of the policy exclusion requires that the injuries Helms sustained occurred within the course of his employment. “ £An injury arises “in the course of” employment when it occurs within the period of the employment, at a place where the employee may be in performance of [the employee’s] duties and while [the employee] is fulfilling or doing something incidental to those duties.’ ” (Emphasis omitted). South Ga. Timber Co. v. Petty, 218 Ga. App. 497, 498 (462 SE2d 176) (1995).

Booth argues that there was only circumstantial evidence supporting the superior court’s conclusion that Helms was actually in the course of performing his duties as a cook when he was stabbed. Booth maintains that the fact Helms was killed in the kitchen and there was some chicken out on the counter did not mean he was cooking for the facility at the time of his death.

However, if Helms had been a mere resident, he would not have been allowed to go into the kitchen. His status as an employee placed him in the kitchen. Helms was performing a dual mission by staying at the facility over the holiday weekend: providing himself a place to stay and supervising the facility and the residents as a benefit to Project Adam. He was within the period of employment at the time of his death. The kitchen was a reasonable place for Helms, the cook, to be to perform his duties for Project Adam. As for the third prong of “in the course of employment,” we may never know his exact purpose for being in the kitchen at the time of his death. However, this is of no consequence. If Helms was in the kitchen to cook for the residents, he was fulfilling his duties as cook for Project Adam. If Helms were in the kitchen for a personal reason, he was still performing his duties of overseeing the facility simply by his mere presence. At a minimum, obtaining food for himself was incidental to his duties of overseeing the facility over the holiday weekend. See Petty, supra.

In summary, Helms was an employee of Project Adam at the time of his death, and his murder arose out of and in the course of his employment. Given the clear language of the exclusion in the Professional Liability Insurance Coverage Part of Project Adam’s insurance policy, Helms’ death was not covered under the policy and the trial court did not clearly err in concluding that Helms’ death was not covered by the policy.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.

Decided November 6, 1997

Reconsideration denied March 25, 1998

Cook, Noell, Tolley & Wiggins, J Vincent Cook, David A. Webster, for appellants.

Alston & Bird, Gerald L. Mize, Jr., Kenneth D. Steele, for appellees.

       The court previously granted partial summary judgment to Essex, ruling that an “assault and battery” exclusion in the policy precluded coverage under all parts of the policy except for the Professional Liability Coverage Part.


author: Johnson, Judge.

text:
    A97A2256.
    KELLER v. THE STATE.
    (499 SE2d 713)
   Johnson, Judge.

A jury found Harry Keller guilty of armed robbery. He appeals from the conviction entered on the verdict.

1. Keller claims the evidence was insufficient to support the conviction because there was no proof that a weapon was used in the bank robbery as alleged in the indictment. We disagree.

“The presence of an offensive weapon or the appearance of such may be established by circumstantial evidence, and a conviction for armed robbery may be sustained even though the weapon was neither seen nor accurately described by the victim. Some physical manifestation is required or some evidence from which the presence of a weapon may be inferred, but OCGA § 16-8-41 (a) does not require proof of an actual offensive weapon.” (Citations and punctuation omitted.) Terry v. State, 224 Ga. App. 157, 159 (1) (480 SE2d 193) (1996).

Keller’s ex-wife, who contacted authorities a year after the robbery was committed and notified them of Keller’s participation in the crime, testified that she did not actually see a gun when she drove Keller to the bank to commit the robbery. However, she testified that the couple had a .44 magnum at home, that Keller showed her the note he planned to give to the teller, which stated that he had “a 44 mag” pointed at her and would shoot if she did not give him the money in her drawer, and that he told his ex-wife he had a gun when she drove him to the bank to commit the robbery.

The bank teller testified that she did not see a weapon, but that the robber handed her a note indicating he had a gun pointed at her and would shoot. When she looked up at him, the man told her he was serious. The teller testified that she was afraid and “didn’t question” whether he really had a gun. The note was admitted into evidence. The circumstantial evidence authorized a finding that Keller used a gun to commit the robbery. See McCluskey v. State, 211 Ga. App. 205, 208 (2) (438 SE2d 679) (1993); Nicholson v. State, 200 Ga. App. 413, 414 (1) (408 SE2d 487) (1991). Compare Bradford v. State, 223 Ga. App. 424 (477 SE2d 859) (1996), where, as Judge Beasley points out in her special concurrence, direct evidence that the perpetrator did not have a gun negated the inference that he had one.

2. Because the evidence introduced at trial regarding the presence of a weapon did not demand a verdict of acquittal, Keller’s enumeration that the trial court erred in denying his motion for directed verdict on that basis is similarly without merit. See generally Alford v. State, 200 Ga. App. 483 (408 SE2d 497) (1991).

3. Keller contends the evidence identifying him as the robber was not sufficient. Specifically, he argues that his ex-wife’s testimony in which she admitted helping him plan the robbery, driving him to the bank, waiting for him, driving him away after he jumped into the open trunk of their car, and spending the money was not credible; that there were other possible explanations for the fact that his fingerprints were found on the envelope to which the threatening note was attached, namely that the robber somehow came into possession of an envelope Keller had touched; and that Keller’s mother’s signed statement to police that Keller told her that he and his wife committed a robbery was not reliable since at trial she claimed to have been on medication at the time and did not recall making the statement.

It is not within the province of this Court to judge the credibility of witnesses. On appeal we are required to view the evidence in a light most favorable to the verdict. See Page v. State, 198 Ga. App. 338, 339 (1) (401 SE2d 564) (1991). It was the prerogative of the jury to find Keller’s ex-wife’s and his mother’s pre-trial statements implicating him credible. See id.

It was also for the jury to decide whether Keller’s non-specific theory explaining the presence of his fingerprints on the envelope was to be believed. See Aleman v. State, 227 Ga. App. 607, 609 (1) (489 SE2d 867) (1997). The jury resolved this issue against Keller. The evidence identifying Keller as the perpetrator of the armed robbery was sufficient under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. Keller contends the trial court impermissibly allowed the state to place his character in evidence by admitting his fingerprint record from an unrelated offense in another county. We find no abuse of discretion.

The indictment charged Keller with committing armed robbery on September 11, 1992 in Fayette County. The FBI fingerprint document showed July 8,1993 as the date of the arrest and indicated that the record was being sent to the Coweta County Sheriff’s Department. We are uncertain whether the jury was informed of the date Keller was arrested for the armed robbery, although a sheriff’s deputy testified that the robbery investigation stalled until Keller’s wife reported her husband in October 1993.

Keller is correct that admission of fingerprint cards indicating prior criminal activity may impermissibly place a defendant’s character into evidence in violation of OCGA §§ 24-2-2 and 24-9-20 (b). See Jinks v. State, 229 Ga. App. 18, 19 (2) (493 SE2d 214) (1997). Admission of fingerprint cards alone, however, does not introduce character into evidence, particularly where crime-identifying information has been redacted. See Bright v. State, 265 Ga. 265, 284 (15) (455 SE2d 37) (1995); McGuire v. State, 200 Ga. App. 509, 510 (2) (408 SE2d 506) (1991).

One issue, therefore, is whether the fingerprint record as admitted contained any information linking Keller to prior criminal activity. That the fingerprint record indicates a date of arrest and the name of a different county is somewhat problematic. However, the arrest date shown on the fingerprint record in this case was after the date of the charged offense. The fact that Keller was arrested after the charged crime was committed does not necessarily imply he was ever arrested for another offense. See Gates v. State, 205 Ga. App. 333, 334 (2) (422 SE2d 232) (1992), where we found no undue prejudice to the defendant where a police officer testified that police had the defendant’s photograph because he had been arrested; such a statement did not necessarily imply that the defendant had a prior arrest. And see Holloway v. State, 190 Ga. App. 528, 529 (2) (379 SE2d 542) (1989), where we found no undue prejudice in the admission of a mug shot bearing a date after the commission of and arrest for the charged robbery. Indeed, Keller’s fingerprints may have been taken in connection with the investigation of the charged armed robbery. The cases we have found requiring reversal involve clear indications of arrests before the charged offenses occurred, and usually contain more definite references to other crimes. See, e.g., Strauder v. State, 207 Ga. App. 365 (2) (427 SE2d 792) (1993), where reversal was required because the fingerprint card included dates of the previous offenses and Code sections identifying the prior crimes. Nor do we agree that an indication on the card that the fingerprints were sent to another county implies a connection with another crime. While the better practice would have been to redact the arrest date and the county name, the admission of the fingerprint card under the circumstances presented in this case does not place the defendant’s character into evidence. More importantly, we fail to see how the introduction of this evidence was harmful given the overwhelming evidence of Keller’s guilt. See Gooden v.' State, 204 Ga. App. 62, 64 (2) (418 SE2d 632) (1992); Woodliffv. State, 177 Ga. App. 508 (339 SE2d 777) (1986). Considering the nature of the information on the card and the other evidence in the case, we hold that the trial court did not abuse its discretion in allowing the fingerprint card into evidence. See generally White v. State, 268 Ga. 28, 32 (4) (486 SE2d 338) (1997).

Decided March 11, 1998

Reconsideration denied March 25, 1998

Ballard & Ballard, Scott L. Ballard, for appellant.

William T. McBroom III, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

5. Keller claims the trial court erred in allowing the state to introduce, along with the fingerprint card, a photograph taken of him at the same time his fingerprints were lifted. We fail to see how this was prejudicial inasmuch as it contains no information other than “Keller, Harry Craig #16072” on the back; the same numbers appear on the fingerprint card. There being no implication of a prior arrest, we find no error. See Gates v. State, 205 Ga. App. 333, 334 (2) (422 SE2d 232) (1992).

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    A97A2284.
    ALLEN v. PEACHTREE AIRPORT PARK JOINT VENTURE. ANKROM v. PEACHTREE AIRPORT PARK JOINT VENTURE.
    A97A2297.
    (499 SE2d 690)
   Beasley, Judge.

Pursuant to a two-year lease agreement, Peachtree Airport Park Joint Venture leased certain premises to Jim Suggs. After various discussions with Peachtree and with Jack Allen and Aubrey Ankrom, Suggs soon withdrew from the premises and Allen and Ankrom moved in. A document was prepared assigning the lease to Allen and Ankrom and obligating them to assume Suggs’ covenants under the lease. The document also amended various terms of the lease. Peach-tree, Allen, and Ankrom executed the document, but Suggs had disappeared and did not sign.

Within six months Allen and Ankrom ceased paying rent, claiming the premises were in disrepair even though, under the lease, they bore the burden of making those repairs.

After unsuccessfully demanding possession, Peachtree filed a dispossessory action against Allen and Ankrom and sought back rent, late fees, attorney fees, and interest. Not disputing possession, Allen and Ankrom apparently claimed at the unreported bench trial they owed no monies because Suggs had not executed the assignment document and they were therefore not bound to the lease provisions. The court found “[t]he testimony and the exhibits in this case leave no doubt that the parties understood their agreement. The defendants were taking over the lease between the Plaintiff and Mr. Suggs subject to certain amendments which were negotiated between the parties. It is clear that the parties relied upon that lease ... as amended by the [assignment document]. . . . [T]he parties intended to enter into a lease agreement and did so.” The court awarded back rent, late fees, interest, and 15 percent attorney fees.

Allen and Ankrom separately appealed, raising three issues: (i) whether DeKalb State Court had “subject matter jurisdiction to determine equitable issues such as quantum meruit”; (ii) whether the entity signing the assignment document on behalf of Peachtree had authority to do so; and (iii) whether, absent Suggs’ execution of the assignment document, Allen and Ankrom were bound by the provisions of Suggs’ lease with Peachtree or were instead tenants at will.

1. The first issue is not properly before us, for the court did not base its judgment on any claims of quantum meruit, nor did Peach-tree assert such a claim. The award was based on the written lease as amended. Besides, state courts have subject matter jurisdiction of quantum meruit claims, which are considered actions at law.

2. Regarding the second issue, there is nothing in the record indicating any party ever contested the authority of the entity signing on behalf of Peachtree. Issues not raised below will not be considered on appeal. Also, the court found a representative of Peachtree had signed the assignment document and that Peachtree had entered into the agreement, which necessarily would include a finding the representative had the authority to sign the agreement. There being no transcript of the trial, we must presume the ruling of the trial court was based on sufficient evidence.

3. The third issue is whether Allen and Ankrom, as occupants of the premises, were bound to the provisions of the Suggs/Peachtree lease even though Suggs did not assign the lease to them. The answer is yes. Whether Suggs was bound is not at issue and is not instrumental to a determination of whether appellants are bound.

“It appears to be the settled law of this State that where premises are under lease, and someone other than the lessee or his recognized assignee occupies the premises in the guise of or as if he were a subtenant . . . and pays the rent stipulated in the lease directly to the landlord, the landlord has the exclusive prerogative to elect to treat the occupant then in possession as his tenant under the lease, thus binding both himself and the occupant to the conditions of the lease for the unexpired term.” In Liberty Loan Corp. v. Leftwich, Liberty Loan, after the original lessee had abandoned certain leased premises, immediately occupied the premises without entering into any express agreement with the landlord. In response to Liberty’s claim that its tenancy was on a monthly basis, the landlord stated it considered Liberty bound by the provisions of the original lease. The trial court correctly held the landlord’s actions effected a substitution of tenants and bound Liberty to the original lease, as amended by agreement of landlord and substituted tenants.

“The landlord’s election may be effected by an express recognition of the subtenant or be implied from affirmative acts and conduct. The election establishes privity of contract between the subtenant and the landlord and renders the former liable to the landlord as a tenant” occupying under and bound by the provisions of the lease.

Allen and Ankrom began occupying the premises during the term of the Suggs lease with Peachtree. Peachtree openly elected to recognize them as tenants occupying under the lease. The document executed by the parties expressed their agreement to this relationship and to the terms of the lease as modified by the document. Whether Suggs signed this document and whether it constituted a valid assignment of the lease are irrelevant; all that was needed was a unilateral act or statement by Peachtree making the election which Allen and Ankrom had already made by their conduct. At that point both Peachtree and the defendants became bound to the lease. OCGA § 13-2-3.

Moreover, a subtenant’s representation to the landlord that it had assumed the obligations of the lease, upon which the landlord relies, equitably estops the subtenant from taking an inconsistent position. Under such circumstances, a valid assignment is not required for the landlord to recover from the subtenant under the lease.

The trial court did not err in rendering judgment against Allen and Ankrom based on the provisions of the lease.

4. Pursuant to OCGA § 5-6-6, this Court is authorized to award damages for frivolous appeals. Based on their express representation that they assumed the obligations of the Suggs lease, Peachtree allowed Allen and Ankrom to occupy the premises, and then sought only back rent and related collection fees occasioned by their breach. No valid reason appears for Allen and Ankrom to anticipate reversal of the trial court’s judgment. We conclude that these appeals were brought only for purposes of delay. The clerk is directed to enter ten percent damages upon the remittitur.

Decided March 10, 1998

Reconsideration denied March 25, 1998

Peevy & Lancaster, Gregory W Lancaster, for appellant (case no. A97A2284).

Ralph J. Hunstein, for appellant (case no. A97A2297).

Wiles & Wiles, Lee B. Perkins, N. Jackson Cotney, Jr., for appellee.

Judgment affirmed with direction.

Smith, J., concurs. McMurray, P. J., concurs as to Divisions 1, 2, and 3 and dissents as to Division 4.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

Although this Court has found no merit in these appeals and while I agree that these cases should be affirmed, I cannot conclude these appeals were solely for purposes of delay. Consequently, I oppose this Court’s sua sponte imposition of frivolous appeals damages. For this Court to award damages in this manner, the chill of winter would pervade the appeals process with the question: If I appeal, will I be assessed?

       See Bullock v. Bullock, 162 Ga. App. 744 (1) (292 SE2d 872) (1982); Spain v. Stubbs, 156 Ga. App. 179, 180 (2) (274 SE2d 149) (1980).

        Hobdy v. State, 222 Ga. App. 625, 626 (475 SE2d 686) (1996).

        Wright v. Archer, 210 Ga. App. 607, 608 (1) (436 SE2d 775) (1993).

        Liberty Loan Corp. &c. v. Leftwich, 118 Ga. App. 383, 384 (2) (163 SE2d 837) (1968).

       Id.

        Step Ahead v. Lehndorff Greenbriar, Ltd., 171 Ga. App. 805, 806 (321 SE2d 115) (1984); see Meadows v. Siegal, 217 Ga. App. 59, 60 (456 SE2d 268) (1995); Bloch v. Brown, 199 Ga. App. 127, 129 (1) (404 SE2d 288) (1991).

        Touch Indus, v. 75 Canton Business Park Ltd. Partnership, 202 Ga. App. 548 (415 SE2d 40) (1992).

       Id.; see Primo’s, Inc. v. Clayton Common Assoc., Ltd., 197 Ga. App. 286, 289 (1) (398 SE2d 231) (1990).

       See Cunningham v. Tara State Bank, 212 Ga. App. 470, 471 (442 SE2d 18) (1994).