text:
    A92A2430.
    MAYS et al. v. LAMPKIN.
    (429 SE2d 113)
   Johnson, Judge.

Pierce Lampkin was involved in a traffic accident while driving a tractor-trailer. The sheriff’s department contacted E. Harold Mays d/b/a Mays International Trucks to tow the tractor-trailer from the scene of the accident to Mays’ storage facility. Approximately four days after the collision, Mays released the trailer to its owner, Jack Whitaker, after he paid the entire towing and storage charges of $1,631 for both the tractor and the trailer. Two days later, Lampkin went to Mays’ storage facility to get his tractor. Mays refused to release the tractor to Lampkin because the sheriff’s office had placed a “hold” on it, instructing Mays not to move the vehicle because it was evidence in a possible criminal case against Lampkin arising out of the accident. Approximately a month later, Lampkin made another unsuccessful attempt to retrieve his tractor from Mays. The State eventually brought criminal charges against Lampkin. These charges were resolved approximately four months after the accident. The hold was lifted and Lampkin attempted to retrieve his tractor four days later. Mays refused to release the tractor to Lampkin unless he paid almost $2,000 in storage fees which had accrued while the sheriff’s hold on the vehicle was in effect. Lampkin filed a complaint against Mays and Robert Foster, a Mays employee, for conversion of his property. Mays filed a counterclaim, asserting that he is entitled to a lien on the truck as security for his storage charges. The jury returned a verdict in favor of Lampkin, finding that he is entitled to damages in the amount of $2,500 and attorney fees of $3,000 to be paid solely by Mays. The jury also found that Mays was not entitled to anything on his counterclaim. Mays and Foster appeal from the judgment entered on the jury’s verdict and the denial of their motion for judgment n.o.v. or, in the alternative, for a new trial.

1. In their first enumeration, Mays and Foster contend that the court erred in denying their motions for a directed verdict and for judgment n.o.v. because Mays had a lien on Lampkin’s tractor as an abandoned motor vehicle under OCGA § 40-11-4. “Any person who removes or stores any motor vehicle which is or becomes an abandoned motor vehicle shall have a lien on such vehicle for the reasonable fees connected with such removal or storage. . . .” (Emphasis supplied.) OCGA § 40-11-4 (a). “ ‘Abandoned motor vehicle’ means a motor vehicle or trailer: (A) Which has been left by the owner or some person acting for the owner with an automobile dealer, repairman, or wrecker service for repair or for some other reason and has not been called for by such owner or other person within a period of 30 days after the time agreed upon; or within 30 days after such vehicle is turned over to such dealer, repairman, or wrecker service when no time is agreed upon; or . . . (C) Which has been lawfully towed onto the property of another at the request of a law enforcement officer and left there for a period of not less than 30 days without anyone’s having made claim thereto. . . .” OCGA § 40-11-1 (l).

Here, Lampkin made repeated and timely claims to his vehicle. A week after his tractor was towed onto Mays’ property, Lampkin made a claim for it. Foster told Lampkin he could not get the tractor until the sheriffs hold was lifted. Lampkin made another attempt to retrieve his tractor only a few weeks later and again he was refused possession. Several months later the hold was lifted. Four days later, Lampkin again tried to retrieve his tractor. The entire time the tractor was in storage, Mays knew that Lampkin was claiming his vehicle. Under these circumstances, Lampkin’s tractor was not an “abandoned motor vehicle” within the meaning of OCGA § 40-11-4 (a). Mays’ claim that he had a lien on the truck as an abandoned motor vehicle is wholly without merit. “A trial court’s ruling on a motion for directed verdict or judgment notwithstanding the verdict shall not be disturbed if supported by ‘any evidence.’ Moreover, in the case of the latter motion, the evidence must be viewed in the light most supportive of the jury’s verdict. [Cit.]” Stolle Corp. v. McMahon, 195 Ga. App. 270, 273 (3) (393 SE2d 52) (1990). The court’s denials of the appellants’ motions for directed verdict and for judgment n.o.v. shall not be disturbed.

2. The appellants contend that the court erred in denying their motions for a directed verdict and for judgment n.o.v. as to Lamp-kin’s claim for attorney fees under OCGA § 13-6-11. That Code section “provides for an award of attorney fees against a defendant who has 1) acted in bad faith, 2) been stubbornly litigious, or 3) caused plaintiff unnecessary trouble and expense.” Spring Lake Property &c. v. Peacock, 260 Ga. 80 (390 SE2d 31) (1990). Mays and Foster contend that because there was bona fide controversy in this case, attorney fees under OCGA § 13-6-11 are not available. “The question of attorney fees under OCGA § 13-6-11 is a question for the jury. [Cit.] The standard of review of an award of attorney fees under OCGA § 13-6-11 is whether there is any evidence to support the award. [Cit.]” Spring Lake Property, supra at 81. As discussed in Division 1 of this opinion, Mays’ claim of a lien on Lampkin’s tractor as an abandoned vehicle is wholly without merit. This circumstance alone would support a claim of attorney fees. Under the facts of this case, there is evidence to support a finding by the jury that Mays acted in bad faith, was stubbornly litigious, or caused Lampkin unnecessary trouble and expense by refusing to release his tractor to him after the sheriffs hold was lifted. The court did not err in denying the appellants’ motion for directed verdict and judgment n.o.v. on the issue of attorney fees.

3. In their third enumeration, Mays and Foster challenge the sufficiency of the evidence supporting the verdict. “On appeal, we construe all evidence most strongly in support of the verdict, for that is what we must presume the jury did; and if there is evidence to sustain the verdict, we cannot disturb it.” (Citations and punctuation omitted.) Pappas v. Southeast &c. Dev., 202 Ga. App. 627, 628 (3) (415 SE2d 190) (1992). Having reviewed the entire record most strongly to support the jury’s verdict, we find that there is evidence to support it. The verdict cannot be disturbed.

4. In their fourth enumeration, the appellants contend that the court erred in allowing Lampkin to testify as to his opinion about the value of his tractor because his opinion was based in part on hearsay. This enumeration is without merit because such testimony is admissible. Four Oaks Properties v. Carusi, 156 Ga. App. 422, 423-424 (3) (274 SE2d 783) (1980).

5. Mays and Foster assert that the court erred in refusing to allow a police officer to testify that Lampkin’s tractor posed a threat to public safety at the scene of the accident and in refusing to admit into evidence a copy of the criminal charges brought against Lampkin. Mays and Foster claim that both the officer’s testimony and the copy of the charges were relevant to show that the sheriffs department needed to have the vehicle towed from the scene of the accident and placed in storage until the charges against Lampkin were resolved. These facts, however, were not in dispute; Lampkin stipulated that the vehicle needed to be towed and stored. “(T)he admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” (Citations and punctuation omitted.) Holden v. State, 202 Ga. App. 558, 562 (3) (414 SE2d 910) (1992). In light of the fact that there was no dispute that the sheriff’s department needed to have Lampkin’s tractor towed and stored, the court did not clearly abuse its discretion in excluding the officer’s testimony and the copy of the criminal charges from evidence.

6. Mays and Foster contend that the court erred in giving Lampkin’s second requested charge concerning his possible right of recovery under the evidence. Mays and Foster rely on-the same argument they assert in support of their first enumeration of error. Because of our decision in Division 1 of this opinion, the appellants’ contention as to the court’s charge is without merit.

Decided March 1, 1993

Reconsideration denied March 11, 1993

Jay M. Sawilowsky, for appellants.

Kenneth R. Chance, for appellee.

7. The appellants assert that the court erred in charging the jury on the issue of attorney fees. As we noted in Division 2 of this opinion, there is evidence on the issue of attorney fees. “Where there is evidence, however slight, upon, a particular point, it is not error for the court to charge the law in relation to that issue.” (Citations and punctuation omitted.) Lingo v. Brasington, 202 Ga. App. 813, 814 (415 SE2d 534) (1992).

8. In their final enumeration, Mays and Foster claim that the court erred in denying their motion to strike the award of attorney fees. The jury’s verdict and the court’s judgment specified that the attorney fees were to be assessed only against Mays. The appellants argue that this assessment of attorney fees was improper because Mays could only be held vicariously liable as Foster’s employer. Thus, they conclude, if no attorney fees were assessed against Foster, none could be assessed against Mays. The appellants’ argument, however, is faulty because Mays was not merely vicariously liable. Lampkin alleged and presented evidence showing that Mays and Foster were jointly responsible for depriving him of his tractor. Accordingly, this enumeration of error is without merit.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.

       Based on this court’s recent decision in Southern Gen. Ins. Co. v. Auto Transformation, 206 Ga. App. 243 (424 SE2d 883) (1992), Mays clearly could not assert a mechanic’s lien under OCGA § 40-3-54 (a) for towing and storage charges.

       The other definitions of the term “abandoned motor vehicle” set forth in OCGA § 40-11-1 are inapplicable to the facts of this case.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A91A0976.
    SELLERS et al. v. NODVIN.
    (429 SE2d 138)
   Andrews, Judge.

This is the second appearance of this case before us. In Sellers v. Nodvin, 201 Ga. App. 550 (411 SE2d 723) (1991), we affirmed the trial court’s dismissal of the appeal, which decision was reversed in Sellers v. Nodvin, 262 Ga. 205 (415 SE2d 908) (1992). Accordingly, our decision with respect to that issue is vacated and the judgment of the Supreme Court is made the judgment of this court.

We now address appellants’ additional enumerations of error regarding the underlying default judgment against them. The case arises out of the following facts. Plaintiff/appellee, Marvin Nodvin d/b/a The Nodvin Firm, filed the complaint in this case on June 8, 1990 against defendants/appellants Michael Sellers, William Atkinson IV, Harold Jose and Sellers, Atkinson & Jose, P.C. to recover damages arising out of his legal representation of them. With the complaint he filed and served requests for production of documents to the defendants. The defendants were served on June 18 and 19, 1990.

On July 9, 1990, defendants filed a motion for a protective order with regard to the discovery requests, based on the fact that the case from which Nodvin claimed fees was still pending. Nodvin objected to the motion and claimed that the information sought in the requests was outside the scope of the issues in the pending litigation.

On July 16, 1990, defendants filed their answer to the complaint. On that same date, Nodvin filed notices to produce to the defendants.

On August 2, 1990, the trial court issued an order denying the defendants’ motion to stay and ordering that defendants comply with the requests for production of documents and produce the documents requested within 15 days. The order also instructed defendants to pay Nodvin $1,893.35.

On September 6, 1990, Nodvin filed a motion requesting an extension of time within which to respond to discovery which had been served on him and contemporaneously therewith filed a motion for sanctions for defendants’ failure to respond to the discovery.

The court issued a rule nisi setting a hearing on the motion for sanctions for September 24, 1990. The court also granted Nodvin’s motion for an extension of time within which to respond to defendants’ discovery until his motion for sanctions was heard.

On September 24, 1990, the defendants filed “a motion for continuance of hearing” for 30 days and a notice to take a deposition. In the motion to postpone thé hearing, defendants stated that before responding to the discovery, they wanted to take plaintiff and plaintiff’s counsel’s depositions. Also on that date, defendants filed a reply to plaintiff’s motion to stay in which they asserted that “plaintiffs have acted in bad faith in seeking this order while soliciting settlement during the period of time when the parties had mutually suspended and deferred discovery though neither plaintiff nor defendants had waived any discovery rights.” Defendants represented that they were “ready, willing and able” to make the discovery documents available. Defendants also submitted the affidavit of John Feagin, defendants’ counsel, in which he swore that settlement discussions in the case were ongoing.

Also on September 24, 1990, Nodvin filed his own affidavit in which he recounted the interactions of the parties since July regarding settlement in the case. He stated that on July 26, 1990, prior to the hearing on their motion to stay, defendants’ counsel had approached him, seeking to enter into settlement negotiations. Nodvin stated that defendants had continued attempting to negotiate settlement through August and September, and that on August 29, 1990, he had written a letter rejecting defendants’ offer and stating that “[a]s you also are aware, the Order of August 2, 1990, has not been complied with and has not been waived by us.”

On September 24, 1990, the hearing on Nodvin’s motion for sanctions was held and the trial court ordered defendants to settle the claims within two days or suffer a default judgment. Subsequent to that hearing, on September 25, 1990, defendants filed, for the first time, a “response to plaintiff’s first request for production of documents.” On September 26, 1990 defendants filed a motion to “stay, modify and vacate the court’s order.”

On September 27, 1990, the trial court issued an “order and judgment as to plaintiff’s motion for sanctions.” In that document, the court made explicit findings of fact regarding the interactions between the parties and concluded that defendants had wilfully disregarded the court order and wilfully attempted to deny Nodvin the discovery sought. Thus, pursuant to OCGA § 9-11-37, the trial court struck defendants’ answer, declared defendants in default and entered judgment in favor of Nodvin. The court allowed an additional ten days for affidavits to be submitted regarding expenses.

Defendants filed their first notice of appeal on October 3, 1990. On December 17, 1990, Nodvin filed a motion to dismiss the appeal on the basis that defendants had failed to file a transcript as required by OCGA § 5-6-42. The trial court held a hearing and granted the motion to dismiss because of the delay in the filing of the transcript. From that order, defendants filed the instant appeal enumerating as error both the dismissal of the appeal and various matters underlying the judgment against them.

1. In their first enumeration, appellants claim that the trial court erred in finding them in wilful violation of the discovery order and imposing the sanction of a default judgment against them. They argue that because the parties were engaged in settlement negotiations, the trial court abused its discretion by finding a wilful failure to respond to the discovery. They further argue that their failure to respond to the discovery was based on: 1) an implicit understanding that discovery was being held in abeyance; 2) a good faith reliance on an implicit agreement to delay discovery; 3) a misunderstanding between counsel regarding the discovery; 4) having been “set up” by Nodvin’s counsel into overlooking the legal requirement.

Appellants’ enumeration is without merit and we find no abuse of the trial court’s discretion here. “A very broad discretion is granted judges in applying sanctions against disobedient parties in order to assure compliance with the orders of the courts. By OCGA § 9-11-37 (b) (2) (C) the courts are specifically granted the discretion to dismiss complaints or to render default judgments against disobedient parties. This applies to the disobeying of an order to produce. Historically it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court’s exercise of its discretion in absence of abuse. This policy is applicable to a trial judge’s exercise of the broad discretionary powers authorized under the discovery provisions of the Civil Practice Act.” (Citations and punctuation omitted.) Joel v. Duet Holdings, 181 Ga. App. 705, 707 (353 SE2d 548) (1987); see also Peoples v. Yu, 184 Ga. App. 252 (361 SE2d 244) (1987). We will not address the additional matters which appellants seek to argue which are not enumerated as error.

2. In their second enumeration, appellants claim that the trial court erred in conducting a hearing on Nodvin’s motion for discovery sanctions in that he did not file a certificate — that he attempted to resolve discovery disputes as required by Uniform Superior Court Rule 6.4 (B). There is no merit to this argument, since it was pursuant to appellants’ own motion for a protective order that the court’s August 2 order directing appellants to respond to the discovery issued. Defendants failed to comply with the court order and therefore it was unnecessary for Nodvin to file a certificate prior to filing the motion for sanctions. See generally Green v. Snellings, 260 Ga. 751 (1) (400 SE2d 2) (1991).

3. In appellants’ third and fourth enumerations, which they argue together, they cite Hazlett &c. Constr. Co. v. Womack Constr. Co., 181 Ga. App. 25 (351 SE2d 218) (1986), and claim that the trial court erred in finding Nodvin’s contract claim to be liquidated and in denying the defendants’ right to a trial on the issue of damages.

Here, the complaint alleged that defendants had entered into a contract with Nodvin for legal services. The complaint alleged that the agreement between the parties was for “regular charges” for expenses, plus interest on “any unpaid balance of an invoice rendered for the services and expenses for the preceding month.” Nodvin alleged that he performed the services, and that the defendants were, jointly and severally, indebted to him in the amount of $60,788.83 plus interest from June 1, 1990. In their answer, defendants denied the allegations concerning the amount owed to Nodvin, although they admitted that they orally agreed to let him represent them regarding certain matters. It is unclear from the record whether the fee arrangement with Nodvin was in writing.

OCGA § 9-11-55 (a) provides that in the event of a default, the plaintiff shall be entitled to a verdict and judgment as if every item and paragraph of the complaint were supported by proper evidence, without the intervention of a jury “unless the action is one ex delicto or involves unliquidated damages, in which event the plaintiff shall be required to introduce evidence and establish the amount of damages before the court without a jury, with the right of the defendant to introduce evidence as to damages and the right of either to move for a new trial in respect of such damages. . . . An action based upon open account shall not be considered one for unliquidated damages within the meaning of this Code Section.”

The definition of liquidated damages is “an amount certain and fixed, either by the act and agreement of the parties, or by operation of law; a sum which cannot be changed by the proof; it is so much or nothing; and that the term does not necessarily refer to a writing: an open account is the reverse of this.” (Citations, punctuation and emphasis omitted.) Hazlett, supra at 26.

By statutory definition, an action on an open account is considered an action for liquidated damages. “Black[’s Law Dictionary] defines an open account as one which has not been finally settled or closed, but is still running or open to future adjustment or liquidation. [Cit.] Georgia law agrees with this definition.” Welch Constr. Co. v. Quantum Group, 188 Ga. App. 740 (1) (374 SE2d 232) (1988).

A second type of liquidated claim “would be a suit upon an account for a stated balance which, when no defense having been filed and the case having been marked in default, the correctness of the balance sued for by the plaintiff became established and fixed without the necessity of proof thereof by the plaintiff. . . .” Hazlett, supra at 26; see, e.g., Ale-8-One of America v. Graphicolor Svcs., 166 Ga. App. 506, 508 (7) (305 SE2d 14) (1983). Black’s defines an “account stated” as “[t]he settlement of an account between the parties, with a balance struck in favor of one of them; an account rendered by the creditor, and by the debtor assented to as correct, either expressly, or by implication of law from the failure to object.”

In addition to the type of account, another critical fact to the determination of whether damages are liquidated for purposes of OCGA § 9-11-55 (a) is whether the amount of damages is ascertainable from the pleadings. See Hazlett, supra; Welch, supra. In the instant case, we find that the damages were unliquidated since there is no gauge by which to determine the amount of damages owed. Nodvin failed to allege an agreement to pay which allows us to calculate the amount of damages, and we have no tool with which to measure that amount. Hazlett, supra at 27. In his complaint, Nodvin alleges only that the defendants agreed to pay “regular charges” for the services. He does not set forth the method in which a “regular charge” was calculated, nor does he set forth a number of hours for which he is owed payment. Thus, for purposes of OCGA § 9-11-55 (a), the damages are unliquidated.

The fact of the default alone did not convert the damages into a liquidated claim. Welch, supra; Hazlett, supra. The conclusory allegations of the amount owed were not sufficient to render the damages liquidated. Compare Henry v. Adair Realty Co., 141 Ga. App. 182, 183 (1) (233 SE2d 39) (1977). Otherwise “every case where a specific amount is stated in the complaint as due and owing would be turned into a liquidated amount by the default, and the Code section’s provision for trial as to damages involving unliquidated amounts in contract cases would rarely if ever occur.” Welch, supra at 741. Accordingly, the trial court’s determination that the damages alleged were liquidated was erroneous. Compare McGuire v. Norris, 180 Ga. App. 383 (1) (349 SE2d 261) (1986).

4. In their fifth enumeration of error, citing Nodvin v. West, 197 Ga. App. 92 (3) (397 SE2d 581) (1990), appellants claim that the trial court erred in awarding Nodvin one-and-one-half percent (1.5%) per month as post-judgment interest in that this amount is more than provided for in OCGA § 7-4-12. Despite our determination in Division 3, we will address this issue since it will be likely to arise on remand.

OCGA § 7-4-12 provides: “[a]ll judgments in this state shall bear interest upon the principal amount recovered at the rate of 12 percent per year unless the judgment is rendered on a written contract or obligation providing for interest at a specified rate, in which case the judgment shall bear interest at the rate specified in such contract or obligation.”

As stated above, the record contains no written contract between the parties. Nevertheless, Nodvin’s complaint alleges that defendants contracted, in addition to paying for his services, to pay him 1.5 percent per month interest. Because defendants’ answer was stricken, this contractual provision is deemed admitted, as if supported by proper evidence. See generally Cassidy v. Wilson, 196 Ga. App. 6 (395 SE2d 291) (1990). Thus, this admitted provision constitutes an “obligation” under OCGA § 7-4-12 which would exempt the judgment from the post-judgment rate of 12 percent.

The case is distinguishable from both Nodvin v. West, supra, and ADC Constr. Co. v. Hall, 202 Ga. App. 119 (413 SE2d 522) (1991). In both of those cases, the court discussed the interaction between OCGA §§ 7-4-12 and 7-4-16 in situations in which no bilateral obligation had been shown. In Nodvin, supra, Nodvin claimed that such an agreement existed, but the court held that the evidence was insufficient to find error in the trial court’s application of the standard statutory post-judgment interest rate. In ADC Constr., supra, no agreement between the parties was claimed.

In the instant case, if a written contract had existed between the parties regarding the 1.5 percent monthly rate, the provisions of OCGA § 7-4-12 clearly would not have been applicable. Therefore, because of the default, and because the rate is that which is allowable under OCGA § 7-4-16, we find no error in the trial court’s application of a 1.5 percent per month post-judgment rate. See generally Chilivis v. Rogers Oil Co., 135 Ga. App. 176 (3) (217 SE2d 179) (1975).

Decided March 11, 1993.

Fred L. Cavalli, for appellants.

Richard A. Gordon, Marvin P. Nodvin, for appellee.

“The burden is on appellant to show error by the record, and when a portion of the evidence bearing upon the issue raised by the enumeration of errors is not brought up so that this court can make its determination from a consideration of all relevant evidence bearing thereon, an affirmance as to that issue must result.” Nodvin, supra at 97.

Judgment affirmed in part and reversed in part. McMurray, P. J., and Blackburn, J., concur.


author: Pope, Chief Judge.

text:
    A92A1685.
    HENRY ROY PORTWOOD, INC. v. SMITH et al.
    (429 SE2d 143)
   Pope, Chief Judge.

On September 20, 1988, LeRoy Smith, an employee of B & A Roofing Company, Inc. (“B & A Roofing”) was injured while performing a reroofing job at the West Georgia Technical Institute (“West Georgia Tech”). At the time of his injury, Smith was using a metal handle mop to mop tar on an area of roof. He received an electrical shock when the mop’s handle touched a power line running from an electrical transformer located on the roof. Smith and his wife initially filed suit against several defendants and later other defendants were impleaded and/or substituted. Plaintiffs eventually dismissed all defendants except Henry Roy Portwood, Inc., a roofing consultant company. Portwood filed a motion for summary judgment which the trial court denied, but certified that order for immediate review. This court granted Portwood’s application for interlocutory appeal.

1. Portwood argues the trial court erred in denying his motion for summary judgment because Portwood owed no duty to plaintiff. We agree and reverse the trial court’s denial of Portwood’s motion for summary judgment.

In September 1987, Portwood was hired by the State Board of Post Secondary Education (“State Board”) to prepare specifications for reroofing and repair work for Building A of West Georgia Tech. After the Portwood specifications were approved, the State Board contracted with Torrance Construction Company (“Torrance”) for the reroofing and repair work for Building A of West Georgia Tech as provided by the specifications prepared by Portwood. Torrance then hired a subcontractor, B & A Roofing.

Pursuant to Portwood’s contract with the State Board he prepared a project manual for the job, which was incorporated into his professional services contract. In the specifications contained in the project manual, the term architect is defined as meaning “Henry Roy Portwood, Inc., consultant. . . .” Article E-2, Part 2.3 of the project manual sets forth the architect’s responsibilities: “The architect will make periodic visits to the site to familiarize himself generally with the progress and quality of work and to determine in general if the work is proceeding in accordance with the Contract Documents. On the basis of his on-site observations as an architect, he will keep the Owner informed of the progress of the work, and will endeavor to guard the Owner against defects and deficiencies in the work of the contractor. The Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the work. The Architect will not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work, and he will not be responsible for the Contractor’s failure to carry out the work, in accordance with the contract documents.” (Emphasis supplied.)

The duties of the contractor, Torrance, are set forth in Article E-4, Part 4.1 as follows: “The Contractor shall supervise and direct the work, using his best skill and attention. The Contractor shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the work under the Contract.” Article E-ll further provides: “The contractor shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the work. He shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury, or loss to (1) all employees on the Work and other persons who may be aifected thereby, (2) all the Work and all materials and equipment to be incorporated therein, and (3) other property [of] the city or adjacent thereto.”

B & A Roofing assumed certain responsibilities of the contractor, Torrance, under the terms of its subcontract agreement. Section 11.1 of that agreement provides: “the Subcontractor shall be bound to the Contractor by the terms of this Agreement and of the Contract Documents between the Owner and Contractor, and shall assume toward the Contractor all the obligations and responsibilities which the Contractor, by those Documents, assumes toward the Owner. ...”

Although there are some factual disputes about exactly who was to request that the power should be turned off and when the conversation occurred, the undisputed evidence shows that at either the preconstruction conference meeting and/or the inspection of the roof area following that meeting, it was agreed that the power to the school should be shut off when roofing was performed in the area of the electrical wires. It is also undisputed that the specifications prepared by Portwood for this project required that “the contractor shall notify the owner at least four days in advance if any interruption of utilities is necessary.” The only evidence that such a request was made was the testimony of the B & A roofing foreman that the day before his crew was to begin work in that area he requested that Tom Gorman, who was the West Georgia Tech employee in charge of building maintenance and grounds, and who was designated as the resident engineer inspector under the contract documents concerning this project, turn off the power. The foreman further testified that Gorman told him he could not turn off the power because the school needed the power to operate, but that he would provide covers for the wires. It is also undisputed that the power was not turned off, wire covers were not provided, and the foreman was aware the wires were “hot” and the roofers were working in a “dangerous” area. Smith disputes, however, that the foreman warned the workers of the danger as the foreman contends.

Yow v. Hussey, Gay, Bell & DeYoung, Intl., 201 Ga. App. 857 (412 SE2d 565) (1991) provides controlling authority in this case. In that case we held that a party who “did not expressly or impliedly have control over or assume any responsibility for construction site supervision or safety . . . could not be held liable in tort for claims of common law simple negligence regarding site safety.” Id. at 861. In Yow, the pertinent contract provisions contained language identical to the language used in the pertinent contract provisions in this case. In both cases, the architect’s contract with the owner provided that “[t]he Architect will not be responsible for . . . construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work. . . .” Id. at 859.

Plaintiffs argue this case does not offer controlling authority because the architect in Yow was actually an architect and Portwood is not. Portwood testified that he is not an architect, only a roofing consultant, and was only described in the contract documents as an architect because the Board of Regents deals with so many contractors they insisted on their representative being described as an architect so one set of documents could be used for their jobs. Plaintiffs offered no evidence to refute this testimony. The stated logic in Yow “is that one should not be held responsible for that over which one does not exercise any control.” Id. at 858. Thus, the rationale underlying our decision in Yow does not turn on the status of the party, that is, whether the party was an architect, but the contractual responsibilities of the party.

Decided March 11, 1993.

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Robin L. Frazer, for appellant.

Blackwood & Matthews, B. Randall Blackwood, Michael C. Smith, for appellees.

We also reject plaintiffs’ argument that because Portwood knew of the danger of the low lying electrical wires and transformer located on the roof and knew people involved in the project were relying on him, he is liable to the plaintiffs. As we held in Yow, knowledge of a danger does not create a duty to one injured by the danger when responsibility for construction site supervision and control are contractually designated to another party. Id. at 861.

2. Plaintiffs also assert that Portwood is responsible for Gorman’s failure to turn off the power. Construing the evidence on the issue of the alleged request to turn off the power in the light most favorable to plaintiff, we will assume arguendo that Portwood designated Gorman as the resident engineer inspector under the contract and that there is a basis for holding him liable under a theory of respondeat superior for Gorman’s actions taken pursuant to this contract. Even when the evidence is construed in this light, however, we hold there is no basis for finding Portwood liable to plaintiffs. There is no evidence that Portwood ever instructed Gorman not to turn off the power. In fact, Portwood’s specifications for the project anticipated the need for an interruption of electrical service during the roofing project. The reason allegedly offered by Gorman not to turn off the power was that the school needed the power to operate, which reflects that he was acting in his role as the person in charge of building maintenance of West Georgia Tech and was concerned about the operation of the school, not the facilitation of the roofing project. Clearly, Portwood cannot be held liable for decisions Gorman made in his capacity as an employee of West Georgia Tech.

3. In light of our holding in Division 1, it is not necessary to address Portwood’s remaining enumerations of error.

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

       Because Henry Roy Portwood, Inc. is a closely held corporation and all actions by this defendant were the acts of its principal Henry Roy Portwood, this defendant will be hereinafter referred to as “Portwood” and personal pronouns will be used to reference it.

         The party to whom the contractual responsibility for construction site supervision and safety was ultimately transferred, the subcontractor, as the employer of plaintiff was in a better position to protect Smith from dangerous conditions on the job site than was Portwood who only periodically visited the job site, and in fact was not present at the job site on the day Smith was injured.


author: Beasley, Judge.

text:
    A92A1760.
    DECATUR FEDERAL SAVINGS & LOAN ASSOCIATION v. LITSKY.
    (429 SE2d 300)
   Beasley, Judge.

We granted Decatur Federal’s application for interlocutory appeal to review the trial court’s denial of its motions for complete and partial summary judgment. Litsky sued the bank to recoup his losses as a result of the bank’s payment of checks forged on Litsky’s account. The application of OCGA § 11-4-406 is central.

Facts

In 1985, Litsky, who lived in New York, opened a checking account with Decatur Federal. He executed a signature card bearing only his name. The bank sent monthly bank statements to him at his New York address until 1987, when he moved to Georgia, and instructed the bank to mail the statements to him at his new address.

From January to September 1990, Litsky’s housekeeper forged a number of checks on his account. He discovered this on September 19, when she was killed. He immediately went, the same day, to the bank and filled out an affidavit identifying a number of forged checks which had been paid.

Litsky testified that he does not balance his checkbook, write checks in numerical order, or keep a ledger of checks he has written. It is his practice to review his account statements to ensure that he has enough money in the bank to cover his checks. He then looks at the signatures on the front and back of the checks. After doing that, he discards the statement.

He testified that he had destroyed the account statements received by him for the pertinent months, except July, which statement he took to the bank when he reported the forgeries. This statement does not correspond with the photostatic copy of the July statement sent to Litsky by the bank; among other things it showed a much smaller balance than was his actual ending balance at that time.

Litsky’s position is that the statements sent to him by the bank were intercepted by his housekeeper, that those statements which he ultimately received were spurious documents constructed by her, and that the forged checks were not with the statements received by him.

The bank submitted evidence that its depositors’ checks are routinely processed and paid by automated system or computer and signatures are not generally examined or verified by bank employees. If items are presented for payment in person at one of the branches, bank employees have the discretion to verify the signature if the situation warrants it. They can do this easily by “faxing” a copy of the customer’s signature card.

The bank states that it mailed monthly statements to Litsky for January through September, as evidenced by the affidavit of an employee that customers’ monthly account statements are generated by computer and are mailed to customers at the last address provided by them. If a statement is returned, a return code is entered on the computer. If a customer requests that the statements be held, a separate code is entered. Neither such code appeared on Litsky’s record. His statements were generated by the computer on the third day of each month and mailed to him by automated process within three business days thereafter.

1. The bank invokes the time limitations for customer assertions of payment on unauthorized signature or indorsement or alteration, which is provided by OCGA § 11-4-406 (4).

“(4) Without regard to care or lack of care of either the customer or the bank:

“(a) A customer who does not within 60 days from the time the statement and items are made available to the customer (subsection (1) of this Code section) discover and report his unauthorized signature or any alteration on the face of the item is precluded from asserting against the bank such unauthorized signature or alteration; and

“(b) A customer who does not within one year from the time the statement and items are made available to the customer (subsection (1) of this Code section) discover and report any alteration on the back of the item or any unauthorized indorsement is precluded from asserting against the bank such alteration or unauthorized indorsement.”

“The theory behind this section ... is not unakin to a statute of limitation.” Trust Co. Bank v. Atlanta IBM &c. Union, 245 Ga. 262, 264 (264 SE2d 202) (1980). It places absolute time limits on Litsky’s claim, without regard to any allegations that Decatur Federal negligently paid the forged checks. Id.

In order to claim the benefit of the time limits, Decatur Federal must demonstrate that it complied with the requirement in subsections (a) and (b) that “the statement and items are made available to the customer” as contemplated in OCGA § 11-4-406 (1), which provides that the bank’s obligation is fulfilled if it: “sends to its customer a statement of account accompanied by items paid in good faith in support of the debit entries or holds the statement and items pursuant to a request or instructions of its customer or otherwise in a reasonable manner makes the statement and items available to the customer. . . .”

There is unrefuted evidence that the bank sent monthly statements to the customer at the correct address pursuant to his instruction. Its sending, not the customer’s receiving, is what governs because this is the plain word used in the statute. Such a construction has been given in Mesnick v. Hempstead Bank, 434 NYS2d 579, 580 (1) (S.Ct. 1980) and Cooley v. First Nat. Bank of Little Rock, 635 SW2d 250, 252 (1) (Ark. 1982). The meaning of “send” is explained in OCGA § 11-1-201 (38).

The record also establishes that the cancelled checks, or “items,” were also mailed by Decatur Federal to Litsky. The uncontroverted deposition testimony of Decatur Federal’s security officer was that the statements were mailed to Litsky accompanied by the original checks.

Although the record provides a list of the checks showing the payee on each, the forged checks themselves are not in the record, so it is not possible to ascertain exactly how or if the checks were indorsed. The list of checks identified by Litsky as containing his forged signature reflected payees such as Southern Bell, Georgia Power, and the IRS, along with over 20 checks payable to Charles Jackson, who may or may not have been a fictitious person. Under these circumstances, Litsky’s employee’s indorsement in the name of the named payee would be effective under OCGA § 11-3-405 (b). See Northbrook Property &c. Ins. Co. v. C. & S. Nat. Bank, 184 Ga. App. 326, 327 (361 SE2d 531) (1987); Perini Corp. v. First Nat. Bank of Habersham County, 553 F2d 398, 409 (2) (5th Cir. 1977); see also First Nat. Bank of Gwinnett v. Barrett, 141 Ga. App. 161 (233 SE2d 24) (1977) (holding that where the intended payee cashes a check but fails to indorse it, payment by the collecting and drawee banks is still proper, although the check cannot be negotiated). “ ‘The purpose of § 3-405 is to promote negotiability and foster the commercial reliability of paper. The rationale of UCC § 3-405 is that the employer-drawer should bear the loss caused by his dishonest employee rather than thrusting it upon the drawee bank.’ ” Id., citing Anderson, Uniform Commercial Code, p. 163, § 3-405.3.

Where a missing or defective indorsement is on a check which also contains a forgery of the drawer’s name on its face, “[t]he ostensible drawer’s loss in such a situation can generally, as here, be related to the defective indorsement in only the most speculative fashion. No sound basis exists for extending liability for handling the indorsement beyond the unlikely event of a claim [by the named payee] of superior right to payment under the instrument.” Perini Corp. v. First Nat. Bank, supra at 414 (2). Litsky’s claim against Decatur Federal is not predicated upon the status of any payee’s indorsement, but rather upon a claim for payments made on the basis of his forged signature. See Winkie, Inc. v. Heritage Bank of Whitefish Bay, 299 NW2d 829, 836-837 (Wis. 1981); Brighton, Inc. v. Colo nial First Nat. Bank, 422 A2d 433, 440 (N.J. Super. 1980).

Decided March 11, 1993.

McCurdy & Candler, Dana B. Miles, Michael C. McGoff, for appellant.

Bruce D. Duncan, for appellee.

The rationale for allowing the drawer more time to report an unauthorized indorsement than his unauthorized signature is that “there is little excuse for a customer not detecting an alteration of his own check or a forgery of his own signature. However, he does not know the signatures of indorsers and may be delayed in learning that indorsements are forged.” Anderson, Uniform Commercial Code, p. 193, § 4-406:1. Where both are present, the customer should discover and report the unauthorized payment within the shorter time period.

For the foregoing reasons, Bank of Thomas County v. Dekle, 119 Ga. App. 753 (168 SE2d 834) (1969), is overruled to the extent that it is inconsistent with our holdings.

Consequently, Litsky’s unauthorized payment claim against Decatur Federal is limited to those checks on which he discovered and reported his forged signature within the 60-day limit of OCGA § 11-4-406 (4) (a).

The bank’s argument that Litsky is barred from complaining of forged indorsements on the back of the checks because they were not delivered to him and he is therefore not a holder is patently without merit. Litsky is seeking to enforce his rights as a depositor and not as a holder. Cf. First Nat. Bank of Gwinnett v. Barrett, supra.

2. Appellee challenges the constitutionality of OCGA § 11-4-406 but he cannot do so. In the first place, although he raised the issue below in his brief in opposition to the bank’s motion for summary judgment, and the trial court took note of it in its order, the issue was not ruled on. There is no ruling to review on appeal. Alexander v. State, 239 Ga. 810 (239 SE2d 18) (1977); Trust Co. of Ga. v. Montgomery, 234 Ga. 187 (215 SE2d 8) (1975). In the second place, appellee did not file a cross-appeal, which he would have to do in order to challenge such a ruling. Chester v. Ga. Mut. Ins. Co., 165 Ga. App. 783, 784 (1) (302 SE2d 594) (1983). Thus, constitutionality is not before the appellate court and transfer to the Supreme Court under 1983 Ga. Const., Art. VI, Sec. VI, Par. II (1) need not be considered.

Judgment affirmed in part and reversed in part. Pope, C. J., McMurray, P. J., Birdsong, P. J., Cooper, Andrews, Johnson and Blackburn, JJ., concur. Carley, P. J., disqualified.


author: Cooper, Judge.

text:
    A92A1852.
    BOYNTON v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (429 SE2d 304)
   Cooper, Judge.

Appellant is a policyholder and member of appellee, a “mutual” insurance company. Appellant brought a putative class action against appellee, alleging that appellee breached various duties it owed to its policyholders with respect to use of income in excess of the amount required fo.r payment of claims, operating costs, and the maintenance of a reasonable reserve. She appeals from the trial court’s denial of her motion for default judgment, the grant of appellee’s motion for summary judgment on her claims based on fraud, misrepresentation, and the Deceptive Trade Practices Act, and the grant of appellee’s motion to dismiss her breach of contract and conversion counts for failure to state a claim.

1. Appellant first argues that the trial court abused its discretion in opening appellee’s default and denying her motion for default judgment. Appellant filed her complaint February 2, 1990. Within the extended period for an answer agreed to by the parties, appellee filed a motion to dismiss for failure to state a claim which arguably contained a general denial of the allegations of appellant’s complaint. However, appellee did not file an actual answer until March 21, 1991, after its motion to dismiss was partially denied. Appellant made no motion for default judgment or to strike the answer at that time. Then, in November 1991, after appellant’s motion for class certification had been denied and appellee had filed a motion for summary judgment, appellant moved for default judgment. “At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened . . . where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened. . . .” OCGA § 9-11-55 (b). “The rule permitting opening of default is remedial in nature and should be liberally applied [cit.], for default judgment is a drastic sanction that should be invoked only in extreme situations. [Cits.] Whenever possible cases should be decided on their merits for default judgment is not favored in law. [Cits.]” Ewing v. Johnston, 175 Ga. App. 760, 764 (1c) (334 SE2d 703) (1985). In this case the trial court determined, among other things, that this was a proper case for opening default. Assuming arguendo that appellee was in default and that appellant had not waived her right to seek a default judgment, we conclude that the trial court did not abuse its discretion in determining that this was a proper case for opening default. See Donalson v. Coca-Cola Co., 164 Ga. App. 712 (1) (298 SE2d 25) (1982).

2. Appellant next contends the trial court erred in granting summary judgment to appellee on her fraud, misrepresentation, and Deceptive Trade Practices Act claims because genuine issues of material fact remained and her motion to compel discovery was pending. Appellant’s basic theory is that appellee’s use of the word “mutual” in its name and advertising, its charge of a membership fee, and its statement in promotional materials that appellee will pass along to policyholders any savings resulting from efficient operations all give the false impression that company proceeds in excess of those needed for operations and a reasonable reserve will be distributed to policyholders as dividends, in the form of a credit against their next premium. Moreover, appellant asserts, if she is allowed to discover additional promotional materials, she may be able to present additional misleading representations along these lines.

However, the “Mutual Conditions” sections of appellant’s policies with appellee clearly stated that the policyholder “is entitled . . . to receive dividends the Board of Directors in its discretion may declare” and/or “to share in the earnings and savings of the company in accordance with the dividends declared by the Board of Directors.” Whether the cause of action is fraud or misrepresentation, “ ‘ “[misrepresentations are not actionable unless the complaining party was justified in relying thereon in the exercise of common prudence and diligence.” ’ ” Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 793 (2b) (359 SE2d 920) (1987). In light of the clear statements in appellant’s policies that she was entitled to share in company earnings and savings only if and to the extent dividends were declared by the Board in its discretion, any reliance on impressions to the contrary she may have received from appellee’s name, the membership fee, or promises in appellee’s promotional materials was not justified as a matter of law. Moreover, the same clear statements preclude injunctive relief and recovery of costs under the Uniform Deceptive Trade Practices Act, OCGA §§ 10-1-372 and 10-1-373, for a name or promotion violates that Act only if it is misleading or confusing to those “using reasonable care.” Giant Mart Corp. v. Giant Discount Foods, 247 Ga. 775, 777 (279 SE2d 683) (1981). Contrary to appellant’s contention, the term “mutual” does not necessarily mean that income in excess of operating costs and a reasonable reserve is rebated to the policyholders in the form of dividends every year. See, e.g., OCGA § 33-14-2 (1) (“mutual insurer” is any incorporated insurer without shareholders which is owned and governed instead by its policyholders). In light of an explicit provision to the contrary, an actual or potential policyholder using reasonable care would not be misled or confused by the assumption that “mutual” has the meaning appellant desires.

Decided March 11, 1993.

Falanga, Barrow & Chalker, Robert A. Falanga, Jesse E. Barrow III, for appellant.

Powell, Goldstein, Frazer & Murphy, Dean S. Daskal, C. Scott Greene, Elmer A. Simpson, Jr., Richard C. Mitchell, Michael S. French, King & Spalding, Eugene G. Partain, for appellee.

Accordingly, no genuine issue of material fact remained as to appellant’s fraud, misrepresentation, and Deceptive Trade Practices Act claims. Moreover, no additional materials appellant might discover could negate the lack of justifiable reliance and reasonable care that stand as barriers to her recovery. Thus, summary judgment was properly granted despite the pending motion to compel.

3. Appellant also asserts that the trial court erred in granting appellee’s motion to dismiss her breach of contract and conversion claims. “A motion to dismiss for failure to state a claim is not to be granted unless under the pleadings, construed in a light most favorable to the plaintiff, plaintiff can establish no set of facts that would entitle it to relief against the defendant.” Wehunt v. ITT Business &c. Corp., 183 Ga. App. 560, 561 (2) (359 SE2d 383) (1987). The validity of appellant’s breach of contract and conversion claims depends on the validity of her assertion that she had a contractual right to her pro rata share of the company’s income in excess of its needs. Yet the possibility of such a contractual right was negated by each of the Mutual Conditions provisions quoted in Division 2, supra. The first of those provisions, which entitled appellant to dividends the Board in its discretion declared, was attached as an exhibit to appellant’s complaint, and was thus part of the pleadings. See H & R Block v. Asher, 231 Ga. 780 (204 SE2d 99) (1974). Accordingly, it was not possible for appellant to prove facts consistent with her pleadings which would support her breach of contract and conversion claims, and the trial court did not err in granting appellee’s motion to dismiss those claims.

Judgment affirmed. Andrews and Blackburn, JJ., concur in judgment only. McMurray, P. J., disqualified.

       Civil damages are never available under this Act. Lauria v. Ford Motor Co., 169 Ga. App. 203 (3) (312 SE2d 190) (1983).


text:
    A92A2327.
    ARNOLD et al. v. GWINNETT COUNTY BOARD OF TAX ASSESSORS et al.
    (429 SE2d 146)
   Pope, Chief Judge.

In this case, 19 individuals brought a claim in the Superior Court of Gwinnett County against the Gwinnett County Board of Tax Assessors and Gwinnett County Board of Equalization seeking a judgment declaring the method of re-assessment of real estate property valuation made by the defendants to be “fatally flawed and void and of no legal effect” and ordering the county tax digest to be re-evaluated in its entirety. The individuals sought to be certified as a class for all similarly situated owners of real property in the county. The trial court denied the request for class certification and granted defendants’ motion for summary judgment on the ground that the board of equalization is the appropriate forum for plaintiffs’ claim, citing, inter alia, Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208 (367 SE2d 43) (1988). Plaintiffs appeal.

In their brief, plaintiffs cite no authority for their assertion that their claim is not one that must be brought before the county board of equalization pursuant to OCGA § 48-5-311, as we held in Vann. Plaintiffs make no argument in attempt to distinguish their case from the clear and unambiguous holding in Vann, in which, as in the case now before us, the plaintiff initiated a class action suit challenging the method of property appraisal of the county board of tax assessors. In ruling that the plaintiff “failed to assert a claim cognizable by the superior court,” this court held: “OCGA § 48-5-311 provides a statutory appeal system which authorizes any taxpayer to appeal from an assessment by the county board of tax assessors ‘as to matters of tax-ability, uniformity of assessment, and value, and as to denials of homestead exemptions.’ Id. at OCGA § 48-5-311 (e) (1). If a remedy at law is plain and adequate, that is, as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity, it will exclude appropriate equity relief. [Cits.] OCGA § 48-5-311 provides a plain and adequate remedy at law to [plaintiffs’] challenge that the county’s tax assessment and appraisal system deprived [them] of due process of law, equal protection of the law, and lacked uniformity as required under the provisions of the Constitution of Georgia. See generally Wilkes v. Redding, 242 Ga. 78 (247 SE2d 872) [(1978)] (holding that the board of equalization is the appropriate forum for deciding taxpayers’ constitutional and procedural issues as well as questions of uniformity, valuation and taxability); see generally Butts County v. Briscoe, 236 Ga. 233 (223 SE2d 199) [(1976)] (holding that all legal and constitutional questions can be settled in a statutory tax appeal action); see also Acree v. Walls, 240 Ga. 778, 786 (243 SE2d 489) [(1978)]; Chilivis v. Backus, 236 Ga. 88 (222 SE2d 371) [(1976)]; Tax Assessors v. Chitwood, 235 Ga. 147 (218 SE2d 759) [(1975)]. . . . Further, in addition to barring injunctive relief, this rule bars the issuance of a declaratory judgment or mandamus. Wilkes v. Redding, supra at 79; Barr v. Jackson County, 238 Ga. 332 (232 SE2d 923) [(1977)]; Butts County, supra at 236.” Vann, 186 Ga. App. at 210-211.

Decided March 11, 1993.

Davis, Norvell & Norvell, Ray C. Norvell, Sr., for appellants.

Jonathan A. Weintraub, for appellees.

We affirm the trial court’s order. We also determine plaintiffs’ appeal to be frivolous and grant defendants’ motion for the imposition of a penalty pursuant to Rule 26 (b) of the Rules of the Court of Appeals of Georgia. “The cursory nature of appellants’ brief supports this conclusion.” Jernigan Auto Parts v. Commercial State Bank, 186 Ga. App. 267, 272 (367 SE2d 250) (1988). Thus, on remittitur, the trial court is ordered to impose a penalty of $500 against plaintiffs.

Judgment affirmed with direction. Carley, P. J., and Johnson, J., concur.


text:
    A92A2362.
    BENNETT v. L. L. BLOCKER ESTATE.
    (429 SE2d 147)
   Pope, Chief Judge.

This case involves a processioning of land gone awry. The record shows appellant Wilma H. Bennett, in her capacity as executrix of the estate of Joseph L. Harris, filed in the probate court an application for processioning of land to determine the boundary between land held by the estate of Mr. Harris and adjoining land held by the estate of L. L. Blocker. The petition alleged that title to the adjoining land was vested in Gertrude Irene Floree Blocker as the executrix of Mr. Blocker’s estate. The processioning was conducted and a plat was filed by the processioners with the probate court. Appellant filed a protest to the return of the processioners with the probate court. The record shows the deputy clerk of the Wayne County Superior Court acknowledged receipt of the record transferred by the probate court in response to appellant’s protest.

The earliest document in the record after the case had been transferred to the superior court is an order from the trial judge scheduling a pre-trial conference. The style of the order is as follows: “Wilma H. Bennett, Executrix Estate Joseph L. Harris, Plaintiff vs. L. L. Blocker Estate, Defendant.” The superior court case proceeded under this style. A motion to dismiss was brought by the defendant/ appellee on the ground the action was not brought against a legal entity. Plaintiff/appellant also brought a motion to dismiss, or in the alternative to remand the case to probate court for a new processioning, on the ground that the owner of the adjoining land, Gertrude Irene Floree Blocker, was never given notice of the processioning. The trial court issued an order dismissing the action on the ground it was filed against an estate, which is not a legal entity, and is therefore a nullity. We reverse.

Pursuant to OCGA § 44-4-9, the way a protest to a processioning is taken up from the probate court to the superior court is by the filing of a protest with the probate court. “Upon the filing of a protest, it shall be the duty of the judge of the probate court to return all the papers, including the plat made by the surveyor, and the protest to the clerk of the superior court of the county or counties where the disputed land lies. . . . The clerk shall enter the protest on the issue docket to be tried in the same manner and under the same rules as other cases.” OCGA § 44-4-9. Thus, pursuant to the applicable statute, and as reflected in the record of this case, it was the trial court which docketed the case under an invalid case style and not the appellant. Compare Estate of Norton v. Hinds, 182 Ga. App. 35 (354 SE2d 663) (1987) (in which this court ruled an appeal to the superior court from a judgment of the probate court should have been dismissed because the petitioner filed the appeal naming an estate as party defendant and the record showed the estate was not properly represented during the proceedings so that a real party existed upon whom the orders and judgments could be effective). The only pleadings appellant filed prior to the superior court’s docketing of the case consisted of the application for processioning and other papers in the probate court which properly alleged that Gertrude Irene Floree Blocker, a natural person, was the holder of title to the adjoining land in her capacity as executrix of the estate of Mr. Blocker. It was improper to dismiss the case on the ground that it was not filed against a legal entity since the style of the case was apparently chosen by the superior court itself and could have been amended to reflect the true status of the litigation. See Tingle v. Cate, 142 Ga. App. 467 (3) (236 SE2d 127) (1977).

We reject defendant/appellee’s argument that the judgment should be affirmed under the right for any reason rule. The plaintiff/ appellant’s motion to dismiss or in the alternative to remand is an entirely different motion brought not only on different grounds but also requesting, alternatively, different relief. The trial court has not yet considered plaintiff’s motion including the issue of the appropriate relief in response to it. Thus, it is not properly before this court on appeal and we may not consider it as a basis for affirming the order on defendant/appellee’s separate motion brought on different grounds.

Decided March 11, 1993.

Richard Phillips, for appellant.

Zorn & Caldwell, William A. Zorn,, for appellee.

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


text:
    A92A2391.
    SMITH v. THE STATE.
    (429 SE2d 149)
   Pope, Chief Judge.

We granted defendant’s petition for interlocutory review of the trial court’s order denying his motion for discharge and acquittal of the charges against him. The issue in this case is whether the period for filing a demand for speedy trial may expire before arraignment. Pursuant to the terms of OCGA § 17-7-170, the answer is clearly yes.

The record shows that on April 1, 1991 a Fulton County police officer issued two uniform traffic citations to defendant, charging him with driving under the influence of alcohol and driving on the wrong side of the road. The citations ordered him to appear to answer the charges on April 3. The trial court’s order recites that defendant was still incarcerated at the time of the hearing and unable to post bond and the magistrate court transferred the case to the Fulton County State C°urt. The record reflects that the citations were filed in the state court on April 17,1991. By notice dated June 7,1991, defendant was notified to appear for arraignment on July 9, 1991. Defendant appeared pro se and waived formal arraignment. The trial court granted him ten days in which to file motions. On July 18, 1991 defendant filed a demand for speedy trial. The prosecutor filed formal accusations on August 8, 1991. Defendant filed a motion for discharge and acquittal on January 31, 1992 on the ground he had not been tried during the term of court in which the demand for speedy trial was made or the next succeeding term.

We affirm the trial court’s denial of defendant’s motion for discharge and acquittal. Pursuant to OCGA § 17-7-170, a defendant “may enter a demand for trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter. ...” In this case, the uniform traffic citations served as the accusations. See OCGA §§ 17-7-71 (b); 40-13-1. Although formal accusations were later filed in this case, they were superfluous. See Duncan v. State, 193 Ga. App. 793 (389 SE2d 365) (1989); Majia v. State, 174 Ga. App. 432 (1) (330 SE2d 171) (1985). Defendant does not contest the finding of the trial court that the State Court of Fulton County has six two-month terms of court, commencing with the January-February term. The citations were filed in the Marcha April term of court. Thus, pursuant to OCGA § 17-7-170 (a), defendant had until the May-June term to file a demand. The demand was not filed, however, until the July-August term. Thus, it was untimely and ineffective and the trial court did not err in denying defendant’s motion for discharge and acquittal.

Despite the clear and unequivocal language of OCGA § 17-7-170 (a), defendant argues he should not be required to enter a demand for trial before arraignment because “[u]ntil arraignment or a waiver thereof there can be no jury impaneled and no placing of the defendant in jeopardy.” Hardwick v. State, 231 Ga. 181, 183 (6) (200 SE2d 728) (1973). Pursuant to the provisions of OCGA § 17-7-170. (b), defendant is entitled to discharge and acquittal if, during the term at which the demand for trial is made and the next succeeding term, juries were impaneled and qualified to try him but he was not tried. Because he could not have been tried before arraignment, defendant argues it is meaningless to require the demand for trial to be made before arraignment. Defendant’s argument is without merit because the purpose of demanding a speedy trial is to require the State to try a defendant within a specified period. Thus, if a speedy trial demand is timely entered, the State must act to arraign and try the defendant within the allotted time or else he is entitled to discharge and acquittal. In this case, for example, if defendant had entered a demand for trial during the March-April term in which the accusation was filed, assuming a jury was impaneled between the date the accusation, was filed and the expiration of the term, he would have been entitled to trial no later than the expiration of the May-June term. Thus, the State would have been required to place the case on an earlier arraignment calendar in order for the case to be tried before the period for trying defendant had expired. Defendant cannot complain that the delay in placing him on the arraignment calendar prejudiced his right to a speedy trial. He may have been entitled to an earlier arraignment date if he had entered a demand for trial at the earliest possible time. The record does not reflect whether defendant was notified that the citations had been filed in the state court. Once a defendant knows a criminal charge has been brought against him, however, he is, in effect, under a duty to monitor the status of the case if he wishes to file a timely demand for trial pursuant to OCGA § 17-7-170.

Decided March 11, 1993.

Daniel F. Byrne, for appellant.

James L. Webb, Solicitor, Helen A. Roan, Scott E. Heffington, Assistant Solicitors, for appellee.

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

       Moreover, we note defendant did not enter a demand after the formal accusations were filed and even if, as defendant argues, only the filing of the formal accusations triggered his right to enter a demand, a demand filed prior to an accusation is not effective. See State v. Frazier, 201 Ga. App. 6 (410 SE2d 134) (1991).


text:
    A92A2398.
    MARLOWE v. CABE et al.
    (429 SE2d 151)
   Pope, Chief Judge.

Plaintiff Jacque Marlowe filed a complaint alleging she was injured when she fell because the heel of her boot became trapped in a hole in the sidewalk in front of a restaurant operated by defendant Cabe Enterprises, Inc. on property owned by defendant Thorton B. Cabe. Defendants moved for summary judgment and the trial court granted that motion. Plaintiff appeals.

The alleged defect in the sidewalk was described as triangular in shape, starting out as a crack and opening up to a hole or “mouth” at the edge of the curb approximately four or five inches wide. The record contains a photograph which plaintiff testified was taken within one week after her fall which shows that a crack, opening into a hole, had formed over a pipe which ran under the sidewalk to what appears to be a cut in the curb of the sidewalk. Defendant Cabe testified the pipe served as a spout for the gutter of the building. The photograph shows the widest part of the hole was at the curb, at the end of the pipe.

At the time of the fall, plaintiff and several members of her family were exiting the restaurant after dark after having eaten there. As to the issue of plaintiff’s actual or constructive knowledge of the condition of the sidewalk, the record does not establish that plaintiff walked past the spot where she fell as she entered the restaurant. The testimony of plaintiff and several of her family members establishes that none of them noticed the hole in the sidewalk before plaintiff fell, but they did notice it afterwards and each, including plaintiff, admitted one could see the hole when looking for it or when standing over it. Plaintiff testified that because of the darkness and shadows on the sidewalk, it was necessary to stand directly over the hole and look down into it to appreciate its depth. As to the issue of defendants’ actual or constructive knowledge of the condition of the sidewalk, defendant Thorton Cabe, owner of both the premises and the corporation which operated the restaurant, testified that during the week following plaintiff’s fall he walked over the premises and did not see anything which was, in his opinion, a hazard to “anybody that was looking where they were going. . . .” He admitted, however, that because he was in and about the premises on almost a daily basis he probably had seen the hole before plaintiff’s fall but did not think it was necessary to repair it because he did not think it was a condition that would cause an accident.

Pursuant to the facts of this case, and given the presumption in favor of the non-moving party in a motion for summary judgment, we are constrained to hold that a jury issue is presented. Defendants rely heavily upon this court’s decision in Crenshaw v. Hogan, 203 Ga. App. 104 (416 SE2d 147) (1992). In that case, the plaintiff fell when the heel of her shoe caught in a “hole” or space about fourteen inches long and three inches wide between the edge of defendant’s driveway and the adjoining walkway to the front door. At the time plaintiff fell, the sun was out and she acknowledged there was nothing to obscure her view of the hole. This court held: “Based on the photographic evidence included in the record and on the [plaintiff’s] own . . . testimony, we conclude that the asserted defect which caused her to fall was so open and obvious that it could not be considered actionable. . . . It is common knowledge that small cracks, holes and uneven spots often develop in pavement; and it has been held that where there is nothing to obstruct or interfere with one’s ability to see such a ‘static’ defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved.” One issue in this case is whether defendant acted reasonably in assuming the defect, which he acknowledged he probably had seen prior to the fall, was noticeable and the risk it caused was appreciable by a visitor.

Even if the trier of fact could find defendant did not exercise ordinary care, plaintiff would nevertheless be precluded from recovering if the evidence showed, as a matter of law, that she failed to exercise ordinary care for her own safety. The exercise of ordinary care does not require an invitee to scan the ground continuously for possible defects, but depends on all the circumstances at the time and place. Pinkney v. VMS Realty’, 189 Ga. App. 177 (375 SE2d 90) (1988). The plain view doctrine imposes a duty on an invitee “to look where he is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to be. . . .” (Citations and punctuation omitted.) Wallace v. Pointe Properties, 202 Ga. App. 537, 538-539 (414 SE2d 678) (1992). Here, as in Wallace, evidence was presented that the hole which caused plaintiff’s fall was not a “large object” and was not in plain view “but was obscured by a combination of factors.” Id. These factors included not only darkness and shadows but also plaintiff’s testimony that the depth and width of the hole could not be discerned from the angle at which she approached it and could only be discerned when looking directly into it. Another circumstance relating to whether plaintiff exercised ordinary care in this case is her testimony that as she approached the curb, she was checking for vehicular traffic in the parking lot of the restaurant. “ ‘A possible confrontation with vehicular traffic on the property may be a significant “distraction” for a pedestrian-invitee on the premises.’ [Cits.]” Magee v. Federated Dept. Stores, 187 Ga. App. 620, 621 (371 SE2d 99) (1988).

Decided March 11, 1993.

Davidson, Hopkins & Booth, Jack S. Davidson, Joseph H. Booth, for appellant.

Blasingame, Burch, Garrard & Bryant, Andrew J. Hill III, Milton F. Eisenberg II, for appellees.

Although in Crenshaw we held that the hole in the pavement which allegedly caused the plaintiff’s fall was open and obvious, the circumstances surrounding this case are different and require a different result. In Globe Oil Co., USA v. DeLong, 182 Ga. App. 395 (1) (356 SE2d 47) (1987), another case involving a fall allegedly caused by cracked and uneven pavement, we ruled that under the factual circumstances of the case, whether the plaintiff’s failure to observe the defect amounted to a lack of reasonable care was a jury question. Likewise, the factual circumstances surrounding this case create a jury question concerning whether the plaintiff’s failure to observe the hole in the sidewalk amounted to a lack of reasonable care.

Judgment reversed. Carley, P. J., concurs. Johnson, J., concurs in judgment only.