author: Banke, Presiding Judge.

text:
    75067, 75068.
    CALIFORNIA FEDERAL SAVINGS & LOAN ASSOCIATION et al. v. HUDSON et al.; and vice versa.
    (364 SE2d 582)
   Banke, Presiding Judge.

Bruce Hudson and his wife, Janie Hudson, brought suit against California Federal Savings & Loan Association (“the bank”) and its service corporation, Savers Investment Corporation (“the service corporation”), seeking to recover damages arising from the alleged breach of a real estate development contract between Bruce Hudson and the service corporation. This contract, which pertained to certain raw land owned by the service corporation in Douglas County, Georgia, entitled the developer to 50 percent of the net profits realized from the sale of developed lots after payment of all development costs. Such compensation was not due the developer, however, “until the final sale and receipt of payment for all of the developed lots as to each separate tract of ‘property’ developed.”

The development contract further specified that the first $200,000 earned by the developer and 50 percent of any earnings subsequently earned by him were to be pledged to the service corporation’s parent company (i.e., the bank), until a total reserve of $500,000 had been accumulated. These funds were to be held by the bank as collateral until all construction loans made by the bank with respect to the lots sold pursuant to the development agreement had been paid in full. In the interim, the developer was to receive all dividends earned on the pledged funds, which, pursuant to the terms of the original agreement were to be placed in a savings account. A separate collateral pledge agreement was executed by Hudson and the bank on December 12, 1976, identifying the pledged funds by a certain specified savings account number. The latter agreement was supplemented on December 23, 1976, by a second collateral pledge agreement, which was a duplicate of the first except that it specified a different savings account number.

As previously indicated, the development contract provided that profits from the sale of developed lots would be distributed only after all the lots in each separate tract of development property were sold. However, the service corporation evidently began making payments to Hudson from the income generated by the sale of properties contained in certain of the tracts even though there were lots remaining in the tracts to be sold. The bank contends that these payments, which ultimately totalled $344,068, were “advances” which were to be repaid in the event they exceeded Hudson’s share of the profits actually earned on these tracts.

The development contract was terminated in July of 1982, allegedly due to a rise in interest rates and a resulting decrease in demand for residential subdivision lots. Hudson thereafter demanded full payment of the $500,000 in earnings which, by that time, had apparently been generated by completed tracts and pledged to the bank. The bank refused this demand, taking the position that the $344,068 in “advances” which Hudson had received from the income generated by the ongoing projects exceeded his actual share of the profits in those projects by $183,690. Hudson thereupon filed the present action against the bank and the service corporation, praying for an accounting, the return of the $500,000 in pledged earnings, and a recovery of damages from the service corporation for its alleged breach of its obligations under the original development contract. Hudson’s wife filed a separate action against the bank, asserting that she was a joint owner of the pledged earnings, which at some point had evidently been transferred from the savings account into a series of certificates of deposit. The service corporation filed a counterclaim in which it sought to recover the $183,690 in excess advances which it alleged had been made to Hudson pursuant to the development contract, while the bank counterclaimed to obtain a $21,367.07 set-off against the $500,000 in pledged earnings, as compensation for certain construction loan losses it had allegedly sustained. Both the bank and the service corporation also sought damages for fraud and other alleged tortious misconduct on Hudson’s part.

At the conclusion of a lengthy trial, the jury returned a special verdict specifying: (1) That the Hudsons were entitled to the return of the $500,000, plus interest on that amount at the rate of 16.5 percent annually; (2) that Hudson had received no payments to which he was not entitled; (3) that he had not engaged in any fraudulent or tortious misconduct resulting in any damage to the defendants; (4) that he was entitled to $500,000 in damages for breach of contract; and (5) that the defendants had been guilty of bad faith in the transaction, resulting in a judgment of $62,462.39 against the defendants as costs and expenses of litigation. The defendants appealed, and the plaintiffs cross-appealed, attacking the sufficiency of a supersedeas bond which the defendants were required to post pending the outcome of the appeal. Held:

1. Initially, we reject the plaintiffs’ assertion that the defendants’ appeal should be dismissed as legally insufficient on the ground that certain of their enumerations of error concern multiple rulings by the trial court, resulting in a violation of the requirement, set forth in OCGA § 5-6-40, that enumerations of error “shall set out separately each error relied upon.” A dismissal of the appeal on such ground would quite clearly be contrary to the spirit and purpose of the Appellate Practice Act, which provides, in pertinent part, as follows: That “[n]o appeal shall be dismissed or its validity affected for any cause nor shall consideration of any enumerated error be refused, except: (1) For failure to file notice of appeal within the time required as provided in this article or within any extension of time granted hereunder; (2) Where the decision or judgment is not then appealable; or (3) Where the questions presented have become moot.” OCGA § 5-6-48 (b). See Contractors Mgt. Corp. v. McDowell-Kelley, Inc., 136 Ga. App. 116 (1) (220 SE2d 473) (1975); MacDonald v. MacDonald, 156 Ga. App. 565 (1) (275 SE2d 142) (1980).

2. The plaintiffs further contend that we should not address several of the defendants’ challenges to the sufficiency of the evidence because these challenges were not properly preserved in the tried court. Pretermitting whether these challenges were previously asserted by the defendants by motion for directed verdict, judgment notwithstanding the verdict or new trial, they may be considered on appeal pursuant to OCGA § 5-6-36 (a), which provides that “[t]he entry of judgment on a verdict by the trial court constitutes an adjudication by the trial court as to the sufficiency of the evidence to sustain the verdict, affording a basis for review on appeal without further ruling by the trial court.” Consequently, we proceed to the merits of the evidentiary challenges.

3. The defendants contend that the evidence does not support the award of damages against them in any amount for breach of the development contract. Pretermitting whether there was any showing that the defendants in fact breached the development contract, we must agree that there was no evidence to support an award of damages for such breach in the amount of $500,000 or in any other amount.

In support of the $500,000 award, the plaintiffs assert that they were entitled under the terms of the development contract to share in any net gain in the value of the remaining “inventory property” at the time of the termination of the contract; and they cite the testimony of the bank’s former president and chief executive officer, Frank Cunningham, as evidence that the amount of that gain was $1,000,000. Cunningham’s testimony in this regard was actually as follows: “Well, there was some developed lots out there, and it was some other land that the service corporation had bought for future development that hadn’t been developed, and I couldn’t tell you the dollar value on those because I don’t have the books of the service corporation, probably around a million dollars.”

This testimony proves nothing, for three reasons. First, Cunningham’s estimate of the value of the inventory property was obviously speculative, there having been no showing whatever, pursuant to OCGA § 24-9-66, that he was in a position to form a correct opinion as to such value. See generally Sisk v. Carney, 121 Ga. App. 560, 563 (174 SE2d 456) (1970). Secondly, even if it were assumed that the remaining inventory property was worth $1,000,000 at the time of the termination of the contract, this does not establish the amount of the bank’s gain on the property. Thirdly, Cunningham’s testimony had reference to the value of the property on January of 1981, which was approximately 18 months prior to the June 1982 termination date, and there was no evidence of actual increase in property values during the intervening period. There being no evidence to support an award of damages to Hudson on the breach of contract claim, that portion of the judgment must be reversed.

4. The service corporation contends that the evidence established as a matter of law its entitlement to recover the $183,690 in alleged overpayments made to Hudson. This counterclaim was premised on the contention that the $344,068 which had undisputedly been paid to Hudson prior to termination of the contract were advances which were subject to repayment in the event they exceeded Hudson’s actual share of the profits. Based on evidence purportedly establishing that the total profits realized on the projects with respect to which these advances were made ultimately proved to be only $360,689, the service corporation contends that the total amount Hudson was entitled to receive on these projects was only $160,344, with the result that he was overpaid by $183,690.

Although the development contract specified that Hudson would be entitled to receive no compensation until all lots comprising each separate tract of development property had been sold, the evidence demonstrated that there had been a departure from the agreement in this regard, a departure which former bank president Cunningham testified had been initiated by the defendants after consultation with their accountants in order to minimize their tax liability. Cunningham supported Hudson’s contention that these distributions were not intended to be advances but were intended as a division of the profits actually earned on the developed lots as of the distribution dates.

A mutual departure from one contractual provision does not necessarily affect the enforceability of the remaining provisions. “Whether the conduct of the parties constitutes a mutual departure from and a waiver of a contract provision ordinarily is a question of fact for the jury.” Southwest Plaster &c. Co. v. R. S. Armstrong &c. Co., 166 Ga. App. 373, 374 (304 SE2d 500) (1983). The evidence did not demand a recovery by the service corporation on its counterclaim.

5. The bank alleges that the evidence entitled it to a recovery as a matter of law on its claim for a set-off of $21,376.07 against the $500,000 in pledged earnings which it held as collateral. The collateral pledge agreements clearly contemplated that Hudson’s share of any construction loan losses would be satisfied from the pledged collateral, and there appears to be no dispute that certain construction loans did in fact go into default. However, there was at least some evidence from which the jury could have determined that the bank did not incur a net loss as the result of these construction loan defaults because it was able to sell the properties serving as security for the loans for an amount greater than the remaining indebtedness. Accordingly, we conclude that the jury was not required to accept the bank’s set-off claim.

6. We must, however, agree with the defendants that the evidence does not support the amount of prejudgment interest awarded to the plaintiffs on the pledged funds. The contractual provisions governing the accrual of interest on the pledged collateral contemplated that the funds would be placed in a savings account, with Hudson receiving the dividends earned on the funds. The evidence showed that when the amount of the pledged collateral reached $500,000, the funds were removed from the savings account and invested in a series of certificates of deposit with the bank, until, at some later point in time, the money was again placed in a savings account. While the rates paid on the various certificates of deposit varied, they were generally higher than those offered by the. bank on regular savings accounts during the same period. Indeed, there was evidence that one of the certificates of deposit had earned interest at the rate of 16.5 percent annually. It was evidently on the basis of that evidence that the jury awarded the plaintiffs prejudgment interest on the pledged collateral at the rate of 16.5 percent to be computed from December 31, 1983. However, as there is no support in the record for a conclusion that the plaintiffs were entitled to interest on the pledged collateral at such a rate throughout the entire period the collateral was held, the prejudgment interest award is vacated, and the case is remanded for a new determination of the amount of prejudgment interest to which the plaintiffs are entitled.

7. The defendants contend that there was no evidentiary support for the jury’s finding that they were guilty of bad faith in the transaction. We agree. In defending the jury verdict, the plaintiffs primarily rely on evidence that the bank failed to timely enter certain interest charges on records maintained to show the accumulated income and expenditures pertaining to the various properties. While it is true that the interest charges in question were not entered until several months after they had accrued, there was no evidence to support the plaintiffs’ contentions that the figures recorded were incorrect or that they were “fixed” by the bank after the litigation had begun in order to provide support for their set-off claim. Consequently, we must agree with the defendants that this evidence provides no support for an award of expenses of litigation pursuant to OCGA § 13-6-11. “Since there was no [other] evidence from which a jury could find that the contract was made in bad faith or that the [appellants] breached it as a result of some sinister motive, the award of [costs and expenses of litigation] cannot be sustained on the basis of bad faith.” Glen Restaurant v. West, 173 Ga. App. 204, 205 (325 SE2d 781) (1984).

8. The defendants enumerate as error the denial of their motions for new trial with respect to their counterclaims for fraud and tortious misconduct. Specifically, they assert that the trial court should not have admitted into evidence certain opinion testimony offered by the bank’s general counsel, E. B. Jones, which, they submit, tended to exculpate certain misconduct on Hudson’s part.

In its amended counterclaim, the bank alleged that the Hudsons had conspired with others to fraudulently procure the transfer to Mrs. Hudson of a 24.5-acre parcel of land which had been paid for by the service corporation. During direct examination by the Hudsons’ counsel, Jones was asked to assume that a deed had been executed to Mrs. Hudson without any knowledge or acceptance either on her part or by Mr. Hudson and was then asked to state the legal effect of such a deed. A timely objection was asserted on the ground that the question assumed facts not in evidence, whereupon an answer was permitted subject to proof of the hypothetical facts. Mr. Jones then responded that, absent delivery of the deed, the purported transfer of title would be ineffective. A follow-up question seeking an opinion as to whether, under those same facts, the plaintiffs would “have done anything wrong” was answered by Jones in the negative. No objection was interposed to this second question; however a motion to strike Jones’ testimony with specific reference to the first question was made and denied at the close of the evidence.

Decided December 3, 1987

Rehearing denied December 17, 1987

G. Conley Ingram, Walter G. Elliott II, R. Wayne Thorpe, G. Michael Hartley, for appellants.

Irwin W. Stolz, Jr., Seaton D. Purdom, Donald B. Howe, Jr., John L. Coney, for appellees.

Subsequent to Mr. Jones’ testimony, evidence was introduced showing that Cunningham had expressed a desire to acquire the 24.5-acre tract in question as a home site for his son and daughter-in-law and had sought to place the property in Hudson’s name so that he (Cunningham) could later approve a bank loan on the property. There was further evidence which would support a finding that Mrs. Hudson was later named as the grantee of the property without any knowledge on her part or on her husband’s part and without any delivery of the deed to her. Thus, there was evidence in the record to support the hypothetical question. See generally Woodruff v. Naik, 181 Ga. App. 70 (351 SE2d 233) (1986). Consequently, this enumeration of error is without merit.

9. The plaintiffs’ cross-appeal, in which they assert the insufficiency of the supersedeas bond, is dismissed as moot, there having been no motion by the plaintiffs for a ruling on this issue during the pendency of the appeal.

Judgment affirmed in part and reversed in part in case no. 75067. Appeal dismissed in case no. 75068.

Carley and Benham, JJ., concur.

       California Federal Savings & Loan Association was formerly known as Peach State Federal Savings & Loan Association. Prior to that, it was known as First Federal of Bremen, and prior to that as Haralson Federal Savings & Loan Association. California Federal and any of its predecessor associations hereinafter will be collectively referred to as “the bank.”

       California Federal’s original service corporation was First Suburban Corporation. In a 1977 merger with another savings and loan association, California Federal acquired a second service corporation known as Savers Investment Corporation. First Suburban Corporation was subsequently merged into Savers Investment Corporation. Savers Investment Corporation and its predecessors will hereinafter be referred to collectively as “the service corporation.”


source: Caselaw Access Project

author: Pope, Judge. Deen, Presiding Judge,

license: Public Domain

text:
    75511.
    ALLSTATE INDEMNITY COMPANY v. DENISON et al.
    (364 SE2d 103)
   Pope, Judge.

In this declaratory judgment action, appellant Allstate sought a determination that it was not obligated to pay appellee Ellen M. Denison, as widow and administratrix of her deceased husband’s estate, personal injury protection benefits under an automobile insurance policy in effect at the time of Mr. Denison’s death.

The stipulated and undisputed facts were as follows. Mr. Denison was found dead of carbon monoxide poisoning in his Chevrolet van parked in Greensboro, North Carolina, on January 30, 1986. The source of the carbon monoxide was a propane fuel heater devised by Denison from a propane lantern on which he had replaced the glass globe with an open peanut can. The device was placed in a five-gallon bucket on the floor of the van. Denison was an independent contractor who did mobile home repair work in various locations in several southeastern states for a Georgia company. Denison purchased the van, which was insured by Allstate, in connection with his work and outfitted the entire rear portion with shelving and racks in which to transport and store tools, supplies and materials used in his repair jobs. Between the two front seats of the van Denison built a storage compartment which was approximately the height of the seats. As he was responsible for paying his own expenses, including lodging, to save money on his out-of-town trips on some occasions Denison would sleep in his van overnight by lying across the two front seats and storage compartment. During cold weather he used the propane heating device to warm the van while he slept.

Denison’s auto insurance policy provided for no-fault benefits “in accordance with the Georgia Motor Vehicle Accident Reparations Act” and “only when bodily injury, sickness, disease or death is caused by an accident arising from the use of a motor vehicle as a motor vehicle.” The statute requires insurers to “pay basic no-fault benefits ... for economic loss resulting from . . . [accidental bodily injury sustained ... by the insured . . . while occupying any motor vehicle. . . .” (Indention omitted.) OCGA § 33-34-7 (a) (1). “ ‘Accidental bodily injury’ means bodily injury, sickness, or disease, including death at any time resulting from bodily injury, sickness, or disease, arising out of the operation, maintenance, or use of a motor vehicle which is accidental as to the person claiming basic no-fault benefits. . . .” OCGA § 33-34-2 (1). “ ‘Operation, maintenance, or use of a motor vehicle’ means operation, maintenance or use of a motor vehicle as a vehicle.” (Emphasis supplied.) OCGA § 33-34-2 (9). See Cole v. Allstate Ins. Co., 173 Ga. App. 454 (326 SE2d 817) (1985).

Allstate moved for summary judgment on the ground that the use of a van which was not constructed for normal sleeping purposes as overnight lodging was a real and substantial departure from the normal and intended purpose of the vehicle; that thus Denison’s death did not arise from the use of the van as a motor vehicle; and, therefore, no-fault coverage did not exist. Mrs. Denison also moved for summary judgment, relying on the construction of the rule made in Southeastern Fid. Ins. Co. v. Stevens, 142 Ga. App. 562, 563-564 (1) (236 SE2d 550) (1977), “that the term ‘arising out of [the use or operation of a vehicle] does not mean proximate cause in the strict legal sense, nor require a finding that the injury was directly and proximately caused by the use of the vehicle, nor that the insured vehicle was exerting any physical force upon the instrumentality which was the immediate cause of the injury [and that] almost any causal connection or relationship will do. ...” Insofar as “[e]ach case turns on its precise individual facts,” id. at 564, Mrs. Denison cited Kicklighter v. Allstate Ins. Co., 175 Ga. App. 586 (333 SE2d 670) (1985), as supporting authority. In Kicklighter, this court found that the insured’s injuries from a fire occurring while he was sleeping in his van, which had been modified and renovated to include cabinets, a sink and a bed, arose from the use of his vehicle while he was occupying it and was a covered insured event.

Based on the law and facts recited above the trial court granted Mrs. Denison’s motion for summary judgment and denied Allstate’s motion. Allstate appeals. Held:

We find the facts of this case are fundamentally distinguishable from those of Kicklighter v. Allstate Ins. Co., supra. In Kicklighter, the camper-van had been outfitted to include cabinets, a sink and a double bed at the time the policy was issued. One of the “visual and patent” purposes of the multi-purpose vehicle at the time it was insured was “for camping in, and it was being used in a regular way for that second pre-ordained purpose. Its use as a camper-van was intended and contemplated by insurer and insured.” Id. at 588.

By contrast, transportation and storage were the only “visual and patent” purposes of the particular multi-purpose vehicle which is the subject of this case. The use of this van for overnight lodging was a substantial departure from its normal, intended and insured purposes. The renovations of the van in this case were made after the policy was issued. Even after the owner built the storage compartment between the two seats, which he used at night as a bed, a visual inspection would not have disclosed the van was to be used for regular overnight lodging.

We agree with the dissenting opinion that drivers should not be discouraged from using their vehicles for occasional sleeping and resting in order to avoid the danger of fatigue on the highway. Occasional resting is an obvious and foreseeable use of any vehicle primarily used for transportation and, therefore, should be an insured use of such a vehicle. However, the transformation of an automobile, van or any other vehicle into a place of lodging, particularly by the installation of a dangerous instrumentality such as a propane heater, is a substantial departure from the normal and intended purpose of a motor vehicle. To hold otherwise would, as a practical matter, transform the automobile insurer into a premises insurer. It follows that the trial court erred in granting Mrs. Denison’s motion for summary judgment and in denying that of Allstate.

Judgment reversed.

Birdsong, C. J., Banke, P. J., Carley and Beasley, JJ., concur. Deen, P. J., McMurray, P. J., Sognier and Benham, JJ., dissent.

Deen, Presiding Judge,

dissenting.

I agree with the trial court’s conclusion that Denison’s injury grew out of his “use” of his van within the contemplation of the defined coverage. “ ‘Use’ while an admittedly elusive term, may be defined as ‘to employ for some purpose.’ [Cit.]” Rustin v. State Farm &c. Ins. Co., 254 Ga. 494, 495 (1) (330 SE2d 356) (1985). “This court has adopted a liberal definition of the word ‘use.’ ” Ga. Farm &c. Ins. Co. v. Greene, 174 Ga. App. 120, 122 (329 SE2d 204) (1985). Therefore, in my view the position taken by this court in Kicklighter v. Allstate Ins. Co., 175 Ga. App. 586, 591 (333 SE2d 670) (1985), is equally applicable here: “Applying a realistic approach to the present case, and in keeping with the Supreme Court’s ruling in Rustin [, supra], we find that the insured vehicle was one which was equipped to convey its operator from place to place and to provide a place of shelter and for [storage] and sleeping occasionally when it was not being used strictly as a conveyance at the moment. [Denison’s] use of the vehicle at the time of his injury was clearly within the normal and intended purpose of the vehicle.”

The majority distinguishes Kicklighter because the court there considered the vehicle’s “obvious and outfitted purpose,” and its “visual and patent purposes, at the time it was insured,” in determining that its use as a camper-van “was intended and contemplated by insurer and insured.” Id. at 588. It holds that the only intended purposes for use of Denison’s van were for transportation and storage, and that its use for sleeping was a “substantial departure” from its “intended and insured purposes.” In my opinion, however, pure common sense dictates that sleeping in one’s vehicle, whether or not it is outfitted with an actual bed, when regular lodging is not elected or is unavailable at the time or place it is needed, is only normal and natural behavior. Clearly, in the interest of public policy, fatigued drivers should be encouraged by their insurers to remove themselves from the highways to sleep or rest so they will not be a danger to other drivers.

As this court noted in Kicklighter (at 591), “[t]he broader concept of motor vehicles, which guides our approach to this issue, is reflected in the U. S. Supreme Court’s recent decision in California v. Carney, 471 U. S. 386, 393 (105 SC 2066, 85 LE2d 406) (1985): “ ‘In our increasingly mobile society, many vehicles used for transportation can be and are being used not only for transportation but for shelter . . .’ ” I likewise find pertinent the sentiment expressed in Carney that to distinguish between the camper-van in Kicklighter and Denison’s van, as the majority does on the issue of considering the intended purpose of using the vehicle, would require that this determination be based “upon the size of the vehicle and the quality of its appointments.” Carney at 393. I find such an analysis impractical and would decline, as did the Carney court, “to distinguish between ‘worthy’ and ‘unworthy’ vehicles.” Id. at 394.

Decided December 4, 1987

Rehearing denied December 17, 1987

Thomas S. Carlock, Paul R. Vancil, for appellant.

J. Alvin Leaphart, for appellees.

Accordingly, insofar as use of the van as a vehicle is concerned, I find this case to be indistinguishable from Kicklighter; and since Denison’s injury arose from the use of his vehicle and he was occupying it at the time, would hold that his death was an insured event and was compensable. For these reasons, I respectfully dissent from the reversal of the grant of summary judgment in favor of Mrs. Denison.

I am authorized to state that Presiding Judge McMurray, Judge Sognier, and Judge Benham join in this dissent.


author: Pope, Judge.

text:
    75535.
    BURTON v. KEY CAPITAL CORPORATION.
    (364 SE2d 296)
   Pope, Judge.

Appellant Carolyn Burton appeals the trial court’s order granting summary judgment to appellee Key Capital Corporation. The record shows that appellant leased a 1984 Plymouth automobile from Ed Voyles Chrysler Plymouth in November 1983. Voyles assigned the lease agreement to Key Capital Corporation. Appellant ceased making payments as provided in the lease and was deemed to be in default under the terms provided therein. Appellee subsequently instituted the present action against appellant, seeking $8,555.34 in payments allegedly owed, 8 percent interest, plus attorney fees. Appellant answered and counterclaimed, denying liability for any amounts owed and contending that the car was defective.

On October 22, 1986 appellee filed a motion for summary judgment and supporting documents on both its claim and appellant’s counterclaim, including the affidavit of its assistant vice-president, setting forth appellant’s liability under the terms of the lease. Following four extensions of time in which to respond to appellee’s motion, appellant filed an amended answer and response to appellee’s motion on January 6,1987. Although appellant did not file either a statement of material facts as to which she contended there existed a genuine issue for trial (USC Rule 6.5) or affidavit, she argued in her response that appellee’s motion should be denied based on its failure to address the defenses raised in her amended answer (filed contemporaneously with her response) and because said motion was premature, as discovery had not yet been completed. The record further shows that appellant’s amended answer stated that: (1) appellee violated the Consumer Leasing Act of 1976, 15 USC § 1667 et seq.; (2) there was a failure of consideration; (3) the contract had created an illegal penalty; (4) appellee failed to mitigate damages; and (5) the contract was unconscionable.

On appeal appellant reasserts her argument that appellee’s motion for summary judgment should be denied because it does not negate those affirmative defenses raised in her amended answer. Specifically, appellant argues that appellee failed to refute her contention that it violated the Consumer Leasing Act of 1976, that the contract created a penalty and was thus unenforceable and that appellee failed to mitigate damages. Under the facts presented here, we find no error.

“If a prima facie showing is made that the moving party in summary judgment is entitled to judgment as a matter of law, the opposing party must come forward with rebuttal evidence at that time or suffer judgment against him. When a motion for summary judgment is made and supported by evidence outside the pleadings, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. . . . Although it is permissible to allege defenses in a conclusory format, where a plaintiff files ... a motion for summary judgment, and evidence is offered on the issue, if the plaintiff establishes a prima facie right to summary judgment, a defendant may not rest upon conclusory allegations or defenses in his pleadings, but must Gome forward with facts showing a genuine issue remains for trial. Since appellee’s prima facie entitlement to summary judgment was in no way refuted by evidence from [appellant], the trial court did not err in granting summary judgment to appellee . . . and entering judgment thereon.” (Citations, punctuation and indention omitted.) Dunoco Dev. Corp. v. Ed Taylor Constr. Co., 178 Ga. App. 738, 739 (344 SE2d 531) (1986). See also Meade v. Heimanson, 239 Ga. 177 (236 SE2d 357) (1977); Thomasson v. Pineco, Inc., 173 Ga. App. 794 (328 SE2d 410) (1985); Bradley v. Tattnall Bank, 170 Ga. App. 821 (2, 3) (318 SE2d 657) (1984); Norris v. Kunes, 166 Ga. App. 686 (305 SE2d 426) (1983).

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.

Decided December 4, 1987

Rehearing denied December 17, 1987.

Ralph S. Goldberg, for appellant.

Karl M. Terrell, William K. Carmichael, John R. Hunt, for appellee.


author: Deen, Presiding Judge.

text:
    75718.
    PRIME BUSINESS INVESTMENTS, INC. v. PEACOCK et al.
    (364 SE2d 106)
   Deen, Presiding Judge.

On February 18, 1985, the appellant, Prime Business Investments, Inc. (PBI), entered a listing agreement with the appellee, Southern Building Services, Inc. (Southern), which gave PBI the exclusive right to sell the appellee’s business for a six-month period. On March 20, 1985, Raymond Peacock, as president of Southern, notified PBI that he had decided to withdraw the offer to sell the business. PBI subsequently commenced this action against Peacock and Southern, seeking to recover $34,000 (the full commission that would have been due had the business been sold). This appeal follows from the trial court’s grant of summary judgment for the appellees. Held:

1. The listing agreement provided that Southern would pay PBI 12 percent of the proposed total purchase price ($248,000) if Southern withdrew the business from the market or terminated the listing agreement prior to the expiration of the listing period. In contesting liability under that clause, the appellees contended that that clause was unenforceable as a penalty, rather than a valid liquidated damages clause.

“We note a marked custom among the judges who have had occasion to deal with the question as to whether a sum so named is a penalty or liquidated damages, to begin the discussion with some statement to the effect that the construction of such contracts presents a question of most vexing and perplexing nature; and in conformity to the custom we may as well make the same remark.” Mayor of Brunswick v. Aetna Indem. Co., 4 Ga. App. 722, 726 (62 SE 475) (1908). When all the vexation and perplexion settles, however, it appears that the contract in this case did provide for a penalty, and not valid, liquidated damages.

Where the amount agreed to be paid as liquidated damages has no reasonable relation to any probable actual damage resulting from the termination of the contract, the contract provision for such damages will be construed as an unenforceable penalty. Gibson v. Sheriff, 155 Ga. App. 578 (271 SE2d 710) (1980); Miazza v. Western Union Tel. Co., 50 Ga. App. 521 (178 SE 764) (1935). In the instant case, the listing agreement provision requiring payment of the entire commission, should Southern change its mind about selling the business and terminate the listing agreement, is manifestly unreasonable, as it allows for no proportion between the probable actual damage and the amount of damages to be paid.

Decided December 4, 1987

Rehearing denied December 17, 1987.

Thomas W. Tobin, Valerie G. Tobin, for appellant.

Rickman P. Brown, for appellees.

2. The listing agreement also provided that the 12 percent commission would be due if PBI procured a purchaser ready, willing, and able to purchase the business on Southern’s terms. PBI claimed that it had procured such a purchaser prior to Southern’s termination of the listing agreement, and that the sale had not been consummated only because of Southern’s withdrawal of the business for sale. See Steinemann v. Vaughn & Co., 169 Ga. App. 573 (313 SE2d 701) (1984). Southern did not specifically rebut this basis for recovery, but presented evidence of an agreement between PBI and Southern for a mutual rescission of the listing agreement altogether, except that Southern would remain liable for the commission should it eventually sell the business to one of the prospective purchasers found by PBI prior to the termination of the listing. PBI’s president, however, denied making such an agreement. Because of this conflict in the evidence concerning rescission of the listing agreement, summary judgment for the appellees was inappropriate.

Judgment reversed.

Birdsong, C. J., and Pope, J., concur.


author: McMurray, Presiding Judge. Deen, Presiding Judge, Beasley, Judge,

text:
    74504.
    SPICEWOOD, INC. v. DYKES PAVING & CONSTRUCTION COMPANY, INC. et al.
    (364 SE2d 298)
   McMurray, Presiding Judge.

Dykes Paving & Construction Company, Inc. (Dykes) entered into a contract with Spicewood, Inc. whereby Dykes agreed to furnish all labor, equipment, and material to perform certain work described as asphalt paving, curb and gutter, clearing, grading, erosion control, sanitary sewer, storm sewer, and waterline installation for a construction project. Dykes then contracted with Ferro Grading Company, Inc., to do a portion of the work it had contracted for with Spicewood, Inc. Ferro Grading Company, Inc., in turn contracted some of its work to Ferro Pipeline Company, Inc.

A dispute arose between Dykes and Spicewood, Inc. as to the proper performance of their contract resulting in Spicewood, Inc., declaring its contract with Dykes breached and informing Dykes that it would make arrangements to complete the contract.

Subsequently, Ferro Grading Company, Inc. sued Dykes on their contract and Dykes filed its answer and counterclaim. Spicewood, Inc. then intervened as a defendant filing its answer, counterclaim and cross-claim. Dykes added its cross-claim against Spicewood, Inc. Following a jury trial a verdict was returned in favor of Ferro Grading Company, Inc. against Dykes on both its claim and Dykes’ counterclaim. As to Dykes’ cross-claim against Spicewood, Inc. the jury returned an award of “$63,379.63 with interest to be awarded on $58,756.85 . . .” from a specified date. On Spicewood, Inc.’s cross-claim against Dykes a verdict in favor of Dykes was returned.

Spicewood, Inc. moved for a new trial on several grounds including that the trial court erred in submitting to the jury documentary evidence that had not been admitted into evidence by the trial court. Spicewood Inc.’s motion for new trial was denied and this appeal followed. Held:

1. On appeal Spicewood, Inc. again contends the trial court erred in submitting to the jury documentary evidence that had not been admitted into evidence by the trial court. Dykes does not deny that the exhibits at issue were submitted to the jury but contends that they were tendered and admitted without objection. However, we may not rely on these assertions contained in the briefs of the parties but must look to the record sent up by the clerk of the trial court to determine if there is harmful error. Desai v. Safeco Ins. Co., 173 Ga. App. 815, 817 (328 SE2d 376); Continental Ins. Co. v. Carter, 171 Ga. App. 162 (318 SE2d 770); Howard v. Estate of Howard, 176 Ga. App. 86, 88 (335 SE2d 171).

In the transcript of the trial, Dykes’ Exhibit No. 30 is identified as a bill prepared by Dykes and sent to Spicewood, Inc. after Dykes was told to leave the job. The complete transcript of the trial does not suggest that this exhibit was tendered or admitted into evidence. On page three of this bill appears a list of items billed which are collectively identified as “Extra work requested by Ferro Pipeline” and which are added together to provide a total of $4,622.78.

Spicewood, Inc. points out that this number ($4,622.78) does not appear in the record other than on Exhibit 30. Spicewood, Inc. also points out that the record does not contain the amount of $58,756.85 which was awarded as liquidated damages, yet that amount of liquidated damages is the remainder when the referenced amount from Dykes’ Exhibit 30 is subtracted from the amount awarded of $63,379.63. As our examination of the record, other than Dykes’ Exhibit 30, does not disclose evidence suggesting a verdict for liquidated damages in the amount returned by the jury and the low probability of a coincidence (the probability of the jury randomly selecting an identical six digit number is one in a million) we conclude that the record supports Spicewood, Inc.’s assertion that Dykes’ Exhibit 30 was utilized by the jury in reaching their verdict. At the same time we find no corroboration of Dykes’ assertion that its Exhibit 30 was tendered and admitted.

Documents upon which a party rests his case must be offered into evidence. It is error to permit the trier of fact to consider documents which have not been tendered or admitted into evidence. Stanley v. Stanley, 138 Ga. App. 560 (226 SE2d 800). We reject Dykes’ argument that any error was harmless as the erroneously considered evidence was incorporated into and is reflected in the jury’s verdict. Thus, the trial court erred in denying Spicewood, Inc.’s motion for new trial and enumerations 1 and 4 are meritorious.

2. In view of our holding in Division 1, enumerations of error 2, 3 and 5 are moot.

3. Enumerations of error 6, 7 and 8 contend error in the trial court’s sustaining objections to questions propounded by Spicewood, Inc. to its expert witness. The objections sustained at trial address the proper form of a hypothetical question or attempts to elicit testimony as to the ultimate issue to be determined by the jury. On appeal Spicewood, Inc. appears to suggest that it was required to examine the expert witness only through the use of hypothetical questions and that the expert witness was not allowed to testify on the basis of facts he had observed. Thus, the factual predicate of Spicewood, Inc.’s argument on these enumerations does not appear in the record. These enumerations of error are without merit.

4. Spicewood, Inc.’s remaining enumerations of error (9, 10, 11, 12,13) involve the trial court’s refusal to give all or portions of certain requested charges to the jury. In each instance the requested charge or portion thereof was properly refused because the principle involved was substantially covered in the court’s general charge, the requested language was not adjusted to the evidence, or the requested language was argumentative. See Turner v. Malone, 176 Ga. App. 132 (1), 133 (335 SE2d 404).

Judgment reversed.

Birdsong, C. J., Banke, P. J., Carley, Sognier, Pope and Benham, JJ., concur. Deen, P. J., concurs specially. Beasley, J., concurs in part and dissents in part.

Deen, Presiding Judge,

concurring specially.

While concurring otherwise with the majority opinion, I cannot agree fully with the mathematical methodology or the arithmetical accuracy that “the probability of the jury randomly selecting an identical six digit number is one in a million.”

Beasley, Judge,

concurring in part and dissenting in part.

I respectfully dissent with respect to Division 1, although I concur in Divisions 3 and 4.

1. As to Division 1, there are three reasons why a new trial is not necessary.

First. At oral argument the parties indicated that a hearing had been set before the trial court on Dykes’ motion to correct the record, pursuant to OCGA § 5-6-41 (f), with respect to the two exhibits. The hearing was held thereafter and a supplemental record and transcript thereof has now been filed.

The motion to correct the record sought to have the record reflect that the two exhibits, which were invoices of September 23, 1982 and December 3, 1982 sent by Dykes to Spicewood, were admitted in evidence. The court found that they were not in fact ruled admitted but that there had been a great deal of testimony about each one. It declined to grant the motion. It stated, however, that it had directed counsel at the end of the case to go over the documents and be sure that those to be sent to the jury comprised all of the proper ones. Dykes’ attorney spoke up to confirm this. It is undisputed that appellant Spicewood participated and registered no objection to these two documents being sent out.

In my opinion, Spicewood waived formal judicial admission of the documents in permitting the jury to deliberate with them in hand, without registering any objection until after trial. Analogous is Chieffe v. Alcoa Bldg. Prods., 168 Ga. App. 384 (2) (309 SE2d 167) (1983), where no objection was made during trial. The point is, there is no ruling by the trial court in this regard for us to review.

Second. The record shows that there was a great deal of testimony about these documents and their contents, and the figure which was awarded to Dykes against Spicewood, $63,379.63, was testified to repeatedly as the net amount due. So the documents were cumulative in this respect. See Crosswell v. Arten Constr. Co., 152 Ga. App. 162, 165 (2)-166 (262 SE2d 522) (1979); McArthur v. Roadway Express, 109 Ga. App. 30, 31 (1) (135 SE2d 67) (1964). The jury awarded this amount but permitted prejudgment interest only on $58,756.85, apparently denying prejudgment interest on the amount Ferro had requested from Dykes for extra work. Ferro’s invoices were in the record. Thus it does not appear that the evidence on which the prejudgment interest was based was not submitted to the jury other than by the two exhibits. The date from which prejudgment interest was to run, August 11,1982, was demonstrably not derived from these exhibits, because it does not appear on them, so they were not its source.

Decided December 4, 1987

Rehearing denied December 18, 1987

Neil L. Heimanson, for appellant.

Kenneth W. Carpenter, Stephen Gibbs, for appellees.

Third. Spicewood has shown no harm. The fact which the majority points out was impermissibly derived by the jury from the exhibits, i.e., the amount for Ferro’s extra work, redounded to Spicewood’s benefit rather than to its prejudice. Instead of awarding prejudgment interest on the whole amount due, the jury limited it to a smaller amount, in Spicewood’s favor. “Appellant must show harm as well as error to prevail.” Pope v. Propst, 179 Ga. App. 211, 217 (10) (345 SE2d 880) (1986).

2. With respect to enumerations of error numbers 2, 3 and 5, insofar as they go beyond the question dealt with above, I find no reversible error.


author: Beasley, Judge. Sognier, Judge,

text:
    74564.
    WHISENAUT v. GRAY.
    (364 SE2d 285)
   Beasley, Judge.

We granted this interlocutory appeal to consider a discovery dispute and the intent of the Uniform Superior Court Rules regarding discovery procedures.

Plaintiff Whisenaut was involved in a collision and sued the driver of the vehicle involved and Ms. Gray, the vehicle owner. Gray was served on January 20, 1986. No answer was filed within 45 days (30 days per OCGA § 9-11-12 (a) plus 15 days per OCGA § 9-11-55 (a)) leaving her in default (OCGA § 9-11-55 (a)). Her motion to open the default was denied on November 21, 1986.

A notice of appearance was filed by her counsel on September 3. He filed interrogatories and requests for production on October 3, a “Defense to Damages” on November 26, and a Motion to Compel Discovery on November 12. Plaintiff raised various objections to this motion, including that defendant had failed to comply with USCR 5 and 6.4 (B). The triál court nevertheless granted defendant’s motion to compel, from which this appeal is taken. It is based solely on USCR 5, and that is all we consider.

1. USCR 5 provides that “[i]n order for a party to utilize the court’s compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay and within 6 months after the filing of the answer unless for cause shown the time has been extended or shortened by court order.” The USCR rules, enacted by the Supreme Court pursuant to Ga. Const. 1983, Art. VI, Sec. IX, Par. I, have the force and effect of law. Dallas Blue Haven Pools v. Taslimi, 180 Ga. App. 734, 736 (1) (350 SE2d 265) (1986), aff'd 256 Ga. 739 (354 SE2d 160) (1987).

The issue is not whether one in default may engage in discovery at all, as argued by Gray; it may be done. See Taylor v. Stapp, 134 Ga. App. 468 (3) (215 SE2d 23) (1975). This does not, however, resolve the issue of the failure to comply with the Rules.

The objective of the Rules is “to provide for the speedy, efficient and inexpensive resolution of disputes ...” with some uniformity throughout the judicial system, as stated in the authorizing constitutional provision. One device for achieving this is Rule 5’s cap on the period of time within which parties may engage in discovery. As any attorney engaged in litigation can attest, discovery can be and often is the most time consuming part of civil litigation.

The “answer” chosen by Rule 5 as the beginning point of the discovery period is plainly that pleading allowed in response to the complaint which initiates litigation. OCGA § 9-11-7 (a). It is this pleading which joins issue, including any with regard to damages. It does not encompass that “pleading” referred to in OCGA § 9-11-55 (a), as argued by defendant. The only purpose of the latter is to allow the defaulting party an opportunity to try the issue of damages to a jury.

The six-months’ period for discovery with aid of the court’s compulsory process is not unrealistically inflexible, since the Rule provides for extension or shortening of this period by court order obtained during it. No additional or other latitude is given if the defendant goes into default. The time period is to be measured from either the day the answer is actually filed or the 45th day after service on the defendant, the last day on which an answer may legally be filed without obtaining a discretionary extension from the court. If an extension is obtained, of course, then the period would be measured from the day the answer is actually filed within that extension.

It was not possible, as argued by defendant, for the court to “impliedly” extend the six-month period after its expiration. This is so because, for one thing, Rule 5 provides that the period may be extended only “for cause shown.” No such showing of any cause is contained in the record before us.

Defendant was served and opted to do nothing for over seven months, when a counsel appearance was filed. The time periods are not computed from counsel’s appearance, but from legal notice to the party of the suit. By lagging, defendant lost the benefit of the court’s compulsory process.

Certainly the trial court has broad discretion over discovery procedures, see Shannon v. Huntley's Jiffy Stores, 174 Ga. App. 125 (1) (329 SE2d 208) (1985), but that discretion may not be exercised in violation of the Rules. See Jack Eckerd Drug Co. v. Covington, 183 Ga. App. 164, 165 (358 SE2d 311) (1987). Therefore, the order of the trial court compelling discovery from plaintiff outside the six-month period must be reversed.

2. This ruling makes unnecessary the consideration of the remaining enumeration.

Judgment reversed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., and Banke, P. J., concur. Carley, Sognier, Pope, and Benham, JJ., dissent.

Sognier, Judge,

dissenting.

I respectfully dissent. I am in accord with the majority that the Uniform Rules for Superior Courts have an entirely laudable purpose. However, Rule 5 simply provides that “[i]n order for a party to utilize the court’s compulsory process to compel discovery, any desired discovery procedures must first be . . . completed . . . within 6 months after the filing of the answer unless for cause shown the time has been extended or shortened by court order.” 253 Ga. at 816.1 cannot agree with the majority that the order appealed from is in violation of that rule. The rule is silent as to when the discovery period begins or ends in a situation such as this, where no answer is filed and the case goes into default. The majority, without citation to authority, holds that in such a situation, we are to calculate the six-month time period allowed for discovery beginning with the 45th day after service. However logical that addition to the rule may seem, in my view it is unwarranted and results in an injustice in this case.

There is no question that appellee has defaulted, and she will suffer the consequences of her failure to answer by forfeiting her chance to present evidence as to the issue of liability: she is liable for damages. But OCGA § 9-11-55 (a) specifically requires the plaintiff in an answer ex delicto or involving unliquidated damages to introduce evidence and establish the amount of damages even after the defendant has defaulted. The statute specifically gives the defaulting party the right to place the amount of damages in issue by filing a pleading raising such issue and to try the case — even to a jury, upon demand — as to damages. This would be but a hollow right without the ability to prepare one’s case adequately, and in Taylor v. Stapp, 134 Ga. App. 468, 469 (3) (215 SE2d 23) (1975), we held that since the defaulting party has the undisputed right “to introduce evidence on his own behalf on the issue of damages [, i]t follows that he has the right to engage in discovery . . . [Cits.]”

OCGA § 9-11-55 (a) sets no time limit on the defaulting party’s right to place the amount of damages in issue (except, of course, that a defaulting party cannot contest the amount of damages after judgment has been entered) and I see no reason to limit the time indirectly by adding to the language of Rule 5 a requirement which enfeebles the right given in the statute. Appellant argues cogently that Rule 5 sets the filing of an answer as the commencement of the time allotted for discovery because that is when the issue is joined and the parties and counsel make their appearances. In this case, where no answer was filed, I would read Rule 5 to preserve that logic, and to harmonize it with OCGA § 9-11-55 (a), by allowing 6 months to conduct discovery, beginning from the date an appearance of counsel was filed. On that date, the issue was joined and parties and counsel were all identified. Reading the Rule in this manner, I find the discovery was proper and the trial court’s ruling correct. It is also equitable, because the litigants here must share equally the blame for the delay. Although it is true that appellee “opted to do nothing” for over 7 months after service, it is also true that the statute gave appellant the right to present evidence and take his judgment any time after the 45th day, which he failed to do.

Decided December 1, 1987

Rehearing denied December 18, 1987

Larry D. Ruskaup, for appellant.

Kenneth R. Starr, for appellee.

I find a second reason for affirming the trial court’s ruling. I disagree with the majority’s judgment that the trial court could not impliedly have extended the 6-month period in its order. The majority states that it was not possible for the court to do this because Rule 5 provides that the period may be extended only “for cause shown,” and no such cause is contained in the record before us. However, the record before us indicates affirmatively that a hearing was held on the motion to compel discovery, but the record contains no transcript of that hearing. It is well established that “ ‘[w]here there is no transcript of evidence before the court, we must assume that the evidence authorized the ruling below. [Cit.]’ [Cit.]” Estate of Sam Farkas v. Dougherty County School System, 178 Ga. App. 135-136 (342 SE2d 501) (1986). We would be authorized, therefore, to assume that the trial court properly extended the time for cause shown.

Since I find the remaining argument advanced by appellant to be without merit, I would affirm the trial court’s ruling.

I am authorized to state that Judge Carley, Judge Pope and Judge Benham join in this dissent.


author: Beasley, Judge. Benham, Judge, Banke, Presiding Judge,

text:
    74586.
    VMW, INC. et al. v. FOSTER.
    (364 SE2d 301)
   Beasley, Judge.

The employee in this workers’ compensation case died of acute bilateral pneumonia on the morning of December 12, 1984, after having been admitted to the hospital on the evening of December 11. It appears without dispute from the medical evidence that the employee suffered from diabetes and that his physical condition generally and his ability to resist infection in particular had been greatly weakened by his failure to take insulin during the four-day period immediately prior to his hospital admission.

The administrative law judge denied a claim for death benefits brought by the employee’s former wife on behalf of his minor son, based on a conclusion that the death was not attributable to any work-related injury. On appeal to the full board, the claimant sought to introduce as newly discovered evidence the deposition testimony of co-worker Pete Mercer to the effect that the decedent had been involved in logging operations for the employer on December 10 under swampy, rainy conditions which could have caused or aggravated his pneumonia. The board did not specifically rule on the claimant’s motion to permit the introduction of this evidence but simply made the findings and conclusions of the ALJ its own based on “de novo consideration of all evidence,” thus confirming the denial of compensation.

The superior court remanded the case to the board for further proceedings, after concluding as a matter of law that Mercer’s “testimony” was “newly discovered evidence” which the board was required to admit in evidence and consider in the de novo proceedings before it.

The alleged employer and its insurer appealed from this remand on two grounds: that the superior court erroneously found as fact that the board did not consider the Mercer testimony, and that the superior court erroneously concluded as a matter of law that the Mercer testimony was “newly discovered evidence” and required to be considered. In addition, they urge, even if the board did not consider the Mercer testimony and should have, denial of compensation would still be the result. The error if any would thus be harmless and the remand uncalled for.

The claimant’s position is that the record supports the superior court’s finding that the Mercer testimony was not considered by the board, that the Mercer testimony qualified as “newly discovered evidence” which the board was compelled to consider, and that a consideration of it would likely have caused a different result, i.e., an award of compensation to the decedent’s claimant.

In its current posture, the problem in the case is procedural. There were three motions pending before the board on which it did not expressly rule: employer/insurer’s motion to quash the notice to take Mercer’s deposition, their motion to quash and suppress the deposition, and claimant’s motion to permit “newly discovered evidence and additional evidence, allowed under Board Rule 708” or to remand to the ALJ for receipt of this evidence. Since the board did not in any decipherable way rule on these several motions, we remand the case to the board to state its rulings, and make them in the first instance if it did not do so originally, in these regards.

The perfunctory order of the board is sparse and leaves one guessing as to whether it granted the motion of claimant and considered this evidence which was not before the ALJ, or whether it granted the opponents’ motions and thus excluded this evidence in its reference to “all evidence.” It did not say, “all evidence before the ALJ,” which would mean it did not permit the Mercer affidavit or deposition. Neither did it say, “all evidence including that additionally submitted to the board by claimant.” Nor does the order issued on claimant’s motion for reconsideration give a clue.

The record transmitted by the board to the superior court, which the cover letter repeatedly states is “the material documents and papers then on file” contains Mercer’s affidavit but not his deposition. (Emphasis supplied.) This makes it appear that the board did consider the former but not the latter.

The parties, and subsequent reviewers in the event of appeal, should not be made to apply assumptions or presumptions, about which there will be a dispute, when so much is at stake and so few words could avoid the doubt. The authority of the board embraces the power to rule on motions before it, OCGA §§ 34-9-102; 34-9-103; and 34-9-48, and it should do so expressly. See, e.g., Harrison v. Southern Talc Co., 245 Ga. 212, 213 (3) (264 SE2d 2) (1980); Transport Ins. Co. v. Ferguson, 156 Ga. App. 715 (275 SE2d 354) (1980). It also has authority to remand to the ALJ for the purpose of receiving additional evidence. Rule 103 (c) of the Rules and Regulations of the State Board of Workers’ Compensation, as amended effective July 1, 1985. It abandoned, as of that date, the alternative practice of receiving additional evidence itself. Thus, at the time of the proceedings before it in 1986, its rule no longer accommodated the optional practice of directly receiving additional evidence. This would weigh in favor of interpreting its order as having rejected the additional evidence. But because of the clouds and the lack of clarity, the reviewing superior court could not find as fact nor conclude as law that the board did not consider Mercer’s affidavit or his deposition.

Thus, while the reasons for remand and the directions to the board are in error, a remand should indeed be ordered. The board should make a complete record so as not to becloud an appeal with extraneous issues which not only waste time and resources but also delay final resolution to the parties’ detriment.

The interplay between subsections (c) and (d) of Board Rule 103 is not yet before us, for we do not know how the board applied these rules in this case. It should interpret the rules it is empowered by OCGA § 34-9-60 (a) to make, before we do. See Strickland v. Douglas County, 246 Ga. 640, 642 (1) (272 SE2d 340) (1980); 2 AmJur2d, Administrative Law, § 233.

Judgment affirmed with direction.

Birdsong, C. J., Deen, P. J., Corley and Pope, JJ., concur. McMurray, P. J., and Benham, J., concur in part and dissent in part. Banke, P. J., and Sognier, J., dissent.

Benham, Judge,

concurring in part and dissenting in part.

I agree that the superior court acted correctly in remanding the case for reconsideration in light of Mercer’s deposition testimony and, accordingly, that we should affirm the court’s judgment, but I disagree with the majority’s reasoning and direction. It is my opinion that the evidence, while not “newly discovered,” was still “additional evidence.” See Rule 103 (c) and (d) of the Rules and Regulations of the State Board of Workers’ Compensation, Appendix to OCGA Title 34, Ch. 9, as amended. Since the superior court’s act of remanding was correct, although not for the reason stated in its order, it should be affirmed, but without the direction as indicated by the majority. Matthews v. Matthews, 238 Ga. 201, 204 (232 SE2d 76) (1977). Moreover, I do not see that it will save the litigants time and resources or that it will expedite final resolution of the case to send it back to the board to act as the majority requires.

I am authorized to state that Presiding Judge McMurray joins in this opinion.

Banke, Presiding Judge,

dissenting.

Considered in isolation, the alleged newly discovered evidence establishing that the decedent worked for the employer on December 10, 1984, under swampy, rainy conditions which might have caused or aggravated his pneumonia, certainly seems like the sort of evidence which might support an award of death benefits to his former wife on behalf of their minor son. However, in the context of the other evidence in this case, it is apparent that the decedent’s death cannot reasonably be attributed to his one-day of work on the employer’s logging crew; for although pneumonia may, technically speaking, have been the immediate cause of his death, the medical evidence establishes without dispute both that the pneumonia predated his work on the logging crew and that what enabled the disease to kill him was his own admitted failure to take insulin during the four-day period prior to his hospitalization.

Decided December 4, 1987

Rehearing denied December 18, 1987.

Daniel C. Kniffen, for appellants.

Dewey N. Hayes, Jr., for appellee.

After working on the employer’s logging crew on December 10, 1984, the decedent spent the night in a trailer made available by his supervisor near the work site. The next morning, he was experiencing flu-like symptoms and was permitted at his request to remain in the trailer that day. He declined the supervisor’s offer to take him home, stating that he did not feel “that sick.” When the crew returned from work that evening, the decedent’s condition had worsened, and he was taken to the emergency room of a nearby hospital.

According to the attending physician at the hospital, the decedent was a severe, insulin-dependent diabetic whose failure to take insulin during the previous four days had, in effect, poisoned his system, rendering him badly “immunal (sic) compromised.” Indeed, so impaired was the decedent’s ability to resist infection by the time he arrived at the emergency room that the pneumonia, which was described in the pathology report as being of approximately three to five days duration, progressed from an asymptomatic to a terminal stage within the next 12 hours, notwithstanding all efforts to halt it. The physician testified that the diabetic ketoacidosis from which the decedent was suffering as a result of his failure to take insulin would have developed regardless of whether or not he had worked during the period in question.

I can conceive of no rational basis under these circumstances for a determination that the decedent’s death was work-related. My conclusion in this regard is actually buttressed rather than weakened by the testimony of the co-worker whose deposition is offered as newly discovered evidence, for it is revealed in that deposition that before the rest of the logging crew left for work on the morning of December 11, 1984, the decedent was drinking a Coca-Cola, an act which, in combination with his failure to take insulin, must be viewed as virtually suicidal.

I am authorized to state that Judge Sognier joins in this dissent.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    74689.
    COMPREHENSIVE BOOKKEEPING & ACCOUNTING, INC. et al. v. JOHN B. WOODWARD, INC.
    (364 SE2d 108)
   Beasley, Judge.

John B. Woodward, Inc. sued Comprehensive Bookkeeping and Accounting, Inc. and Martin L. Van Winkle III to recover sums allegedly due under a promissory note executed by defendants in favor of plaintiff. Defendants denied the material allegations of the complaint and alleged that the note “was one of several documents entered into between the parties and a third party, and [that] one of the other documents entered into between the parties provided for a discharge of Defendants [under the promissory note] upon certain terms and conditions and [that] such terms and conditions occurred discharging Defendants.”

The evidence at trial, construed in favor of the jury’s verdict, was as follows: Comprehensive Accounting Corporation (CAC) provides a standardized accounting system, which includes data processing support and client referrals, to accountants and accounting firms. Plaintiff is a small accounting firm which provided services to its clients through CAC’s accounting system. Plaintiff was capitalized in part by CAC through purchase money financing for accounts provided by CAC to plaintiff, and its assets were pledged as collateral for the financing.

In 1980 plaintiff’s business was “marginal” and, by the latter part of 1980, it sought to sell its accounts, satisfy its debt to CAC and withdraw from operating. Plaintiff communicated its intentions to CAC and CAC brought plaintiff and defendants together to negotiate a sales agreement. In this regard, the parties entered into an agreement entitled, “ASSIGNMENT AGREEMENT, SETTLEMENT, REAFIRMATION OF POST-TERMINATION RESTRICTIVE COVENANTS, AND MUTUAL RELEASE” (the agreement), wherein plaintiff agreed to transfer its accounts to defendants in exchange for the following consideration: “8. SETTLEMENT Upon completion of the assignment contemplated herein, [defendants] shall pay [CAC] by notes acceptable to [CAC] the purchase price. . . . [Plaintiff does] hereby guarantee [defendants] that the value of the accounts will be at least $38,961.56 [plaintiff’s debt to CAC] as of 30 April 1981. [CAC] agrees to limit the indebtedness due [CAC] by [plaintiff] to $38,961.56. [Defendants] agree to pay [plaintiff] directly by note in the sum of the account value above and beyond $38,961.56 . . . [CAC] shall cancel the notes of [plaintiff] . . . and release [plaintiff] of all the other amounts set forth . . . above, and release the mortgage, UCC financing statements, assignment of life insurance, stock pledge, and any other liens it may have on [plaintiff’s] practice, realestate [sic] or other property.”

The agreement further provided, in pertinent part: “18 REFINANCING [CAC] further agrees to assist [defendants] to secure reasonable and adequate refinancing for the balance of the indebtedness due [CAC] and [plaintiff] by [defendants] including such type financing to construct a prototype [CAC] type office building. . . . Such financing shall be completed before 1 May 1981. In the event that financing cannot be arranged before said date, this agreement may be extended between [CAC] and [defendants] for an additional 60 days upon written agreement between the two parties. In the event that said financing has not been completed by 1 July 1981, ownership of the accounts . . . shall be transferred to [CAC]. [Defendants] and [plaintiff] shall be relieved of all liabilities and [defendants] shall become the agent of [CAC] to process [and] protect [CAC’s] accounts in its possession.”

Pursuant to the agreement, plaintiff assigned its accounts to defendants and defendants executed a promissory note in favor of CAC for the amount of plaintiff’s debt to CAC. Defendants also executed a promissory note in favor of plaintiff for the net value of plaintiff’s accounts after deducting an amount equal to plaintiff’s debt to CAC. Defendants failed to procure financing as provided in paragraph 18 of the agreement and refused to pay plaintiff its equity in the accounts.

The trial court denied defendants’ motion for directed verdict, submitted the case to the jury and a verdict was returned in favor of plaintiff in an amount which was reduced so as not to exceed the amount of principal and interest due under the note. The appeal is from the judgment entered thereon.

1. Defendants first contend the trial court erred in failing to grant their motion for directed verdict because paragraph 18 of the agreement “clearly and unambiguously” required procurement of “refinancing” by defendants of their “indebtedness” to plaintiff and CAC as a condition of their liability to plaintiff under the promissory note. In other words, paragraph 18 provides a condition which would relieve both plaintiff and defendants of “all liabilities” under the agreement “ [i]n the event that said financing has not been completed by 1 July 1981. . . .’’On the other hand, plaintiff contends that this language is ambiguous and argues that a question of fact remained regarding the impact of paragraph 18 on defendants’ liability to plaintiff under the note.

“ ‘The construction of a contract is a question of law for the court.’ Code Ann. § 20-701 [now OCGA § 13-2-1]. A jury question arises only if the contract remains ambiguous after application of the rules of construction. Merely because two interpretations might be used in construing the contract it does not follow that the matter automatically becomes a jury question. Holcomb v. Word, 239 Ga. 847 (238 SE2d 915) (1977).” Kennedy v. Brand Banking Co., 152 Ga. App. 47, 53 (4), 53 (262 SE2d 177). The words of a contract generally bear their usual and common signification. OCGA § 13-2-2 (2).

Reading the entire instrument to arrive at the construction of the particular provision whose meaning is disputed, as we must pursuant to OCGA § 13-2-2 (4), there is an ambiguity which lends itself to resolution by a jury. Its meaning cannot be established as a matter of law by the court. For example, the assignment agreement states at the outset that the “Assignors do hereby assign, sell and transfer to Assignees those accounts hereafter identified and defined . . .” and “Assignors hereby transfer to Assignee any and all rights, tangible or intangible, economic or contractual to each account so defined. . . .” (Emphasis supplied.) These provisions introduce a current transfer.

The provision in dispute comes near the end of the lengthy agreement and is entitled “Refinancing.” It could be construed as a side agreement between the assignee of the accounts, that is, the purchaser and the licensor CAC. In this context, the term “all liabilities” would relate to the liabilities purchaser and seller each owed to CAC, as it would be reasonable to conclude that the assignor/seller would have no liabilities to itself.

The lack of clarity is not filled by an application of the legal rules for the construction of contracts, with the result that the court did not err in denying the assignee/purchaser’s motions for directed verdict and j.n.o.v. OCGA § 13-2-1; Gans v. Ga. Fed. &c. Assn., 179 Ga. App. 660, 662 (347 SE2d 615) (1986).

2. The remaining enumerations establish no reversible error. As to certain rejected jury instructions requested by defendants on the subject of conditions precedent and subsequent, they were not material to the issues in the case. Even defendants admitted that it did not make a difference under the circumstances.

Appellants also complain that the court should not have given two of plaintiff’s requests to charge. We do not find them in the record as such, and no objection was voiced during the charge conference. However, defendants’ exception after the charge was given embraces them. If, in the absence of appellants’ compliance with our Rule 15 (c) (3), we are correct in our identification of those portions of the charge to which appellants refer, and assuming that they are substantially what was requested by plaintiff, the charges do not require a new trial. City Dodge v. Gardner, 130 Ga. App. 502, 504-505 (2) (203 SE2d 729) (1973).

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Banke, P. J., Carley, Sognier, Pope, and Benham, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

“ ‘The construction of a contract is a question of law for the court.’ Code Ann. § 20-701 [now OCGA § 13-2-1]. A jury question arises only if the contract remains ambiguous after application of the rules of construction. Merely because two interpretations might be used in construing the contract it does not follow that the matter automatically becomes a jury question. Holcomb v. Word, 239 Ga. 847 (238 SE2d 915) (1977).” Kennedy v. Brand Banking Co., 152 Ga. App. 47, 53 (4), 53 (262 SE2d 177). In light of this interpretation of OCGA § 13-2-1, I am compelled to dissent to the majority’s finding that an ambiguity exists in the agreement which “lends itself to resolution by a jury.”

After examining the entire agreement, as we must pursuant to OCGA § 13-2-2 (4), it is apparent that the object of the agreement is the sale of plaintiff’s accounting practice to defendants and that paragraph 18 is an integral part of the sales transaction which provides a condition which would relieve plaintiff and defendants of “all liabilities” thereunder “[i]n the event that said financing has not been completed by 1 July 1981. . . .”

The majority’s position that paragraph 18 of the agreement could be construed as a “side agreement” between defendants and CAC is not tenable as the record clearly indicates that CAC did not execute the agreement and is therefore not bound by the terms thereof. Under these circumstances, CAC is at best named in the agreement as an agent to assist defendants in obtaining financing for the purchase of plaintiff’s accounting practice, not as a party to the sales transaction.

Even though paragraph 18 “comes near the end of the lengthy agreement,” as noted by the majority, we cannot ignore the impact of this provision on the parties to the agreement. It is essential for the court to ascertain the intention of the parties from the plain language of the instrument and, where the language of the contract as a whole contravenes no rule of law, it should be given effect regardless of the unskillful manner in which it was prepared. See OCGA § 13-2-3; Brooks v. Folds, 33 Ga. App. 409 (1) (126 SE 554); and Skinner v. Bearden, 77 Ga. App. 325 (1) (48 SE2d 574).

The words of a contract generally bear their usual and common signification. OCGA § 13-2-2 (2). In the case sub judice, the subject of paragraph 18 is clearly the “refinancing for the balance of the indebtedness due [CAC] and [plaintiff] by [defendants]. . . .” From this perspective, it follows that the words, “[defendants] and [plaintiff] shall be relieved of all liabilities . . . ,” includes defendants’ liability to plaintiff under the promissory note. Consequently, since the language of the agreement unambiguously expressed a condition of payment under the promissory note held by plaintiff and since the undisputed evidence shows that this condition was not satisfied, the trial court erred in failing to grant defendants’ motion for directed verdict.

Decided December 4, 1987

Rehearing denied December 18, 1987

P. Kevin Walther, for appellants.

David R. Autry, for appellee.


author: Carley, Judge. Benham, Judge, Beasley, Judge,

text:
    74727.
    WALDEN v. THE STATE.
    (364 SE2d 304)
   Carley, Judge.

Appellant was convicted and sentenced for the offense of failure to yield the right-of-way. Thereafter, judgment was also entered against her for court costs in the amount of $382.20. This figure was an aggregate of the following elements: $100 for bailiffs; $150 for 6 jurors; $63 for witnesses; and, $69. [2] 0 for services of the clerk of the trial court. Appellant appeals from the judgment for court costs.

1. “The costs of a prosecution, except the fees of his own witnesses, shall not be demanded of a defendant until after trial and conviction. If convicted, judgment may be entered against the defendant for all costs accruing in the committing and trial courts and by any officer pending the prosecution. The judgment shall be a lien from the date of his arrest on all the property of the defendant. The clerk shall issue an execution on the judgment against the property.” (Emphasis supplied.) OCGA § 17-11-1. There would appear to be two elements which comprise recoverable “costs” pursuant to OCGA § 17-11-1. There are those “costs accruing in the committing and trial courts” and, in addition, there are those “costs accruing . . . by any officer pending the prosecution.” (Emphasis supplied.) If recoverable “costs” were limited to only those costs accruing by officers of the court, then witness fees would not be recoverable. However, witness fees are clearly recoverable from a convicted criminal defendant as “costs.” See generally Brown v. State, 86 Ga. 375 (12 SE 649) (1890); State v. Everett, 93 Ga. 575 (20 SE 73) (1894). Thus, while recoverable “costs” can include fees of officers of the court, “costs” is not necessarily limited to that element of recovery. “The term ‘costs,’ as applied to proceedings in a Court of Justice, has, in the acceptation of the profession, and by the practice of all Courts in Georgia, a well understood meaning. It includes all charges, fixed by statute, as compensation for services rendered by officers of the Court in the progress of the cause.” (Emphasis supplied.) Davis v. State, 33 Ga. 531, 533 (1) (1863).

Bailiffs are officers of the court. There is, “fixed by statute, [provision for the] compensation for services rendered by [bailiffs] in the progress of the cause.” Davis v. State, supra at 533 (1). See OCGA § 15-12-7 (1). See also OCGA § 15-12-6 with regard to fees of special criminal bailiffs which is not applicable in this case. Compare Peters v. State, 9 Ga. 109 (1850), holding that there is no specific statutory authority for a sheriff to charge railroad fare or to charge for guarding the jail (see OCGA § 15-16-21 (c)) and that, therefore, fees for such services are not recoverable “costs”; Walton County v. Dean, 23 Ga. App. 97 (97 SE 561) (1918). Accordingly, regardless of whether the compensation of bailiffs is ultimately considered to be a “cost” accruing in the trial court or a “cost” accruing by an officer of the court, it is clear that such compensation may be a recoverable element of “costs” as against a convicted criminal defendant pursuant to OCGA § 17-11-1.

In this case, a sworn affidavit was filed on behalf of the State, indicating that two bailiffs had served in appellant’s trial, for which services a combined total compensation of $100 had accrued as “costs.” Compare Peters v. State, supra, wherein a charge submitted for “other expenses” was held to be too indefinite; Holloway v. State, 178 Ga. App. 141, 142 (3) (342 SE2d 363) (1986). Appellant made no attempt to show that two bailiffs had not served in her trial or that the total amount of $100 assessed as compensation for their services was excessive under OCGA § 15-12-7 (1). Her sole contention was that the State was not authorized to recover as “costs” pursuant to OCGA § 17-11-1 such compensation as had accrued to bailiffs under OCGA § 15-12-7 (1). That contention is without merit. There being nothing to contradict the sworn affidavit that the sum of $100 for two bailiffs was the proper amount assessable against appellant as “costs” pursuant to OCGA § 17-11-1, the trial court did not err in entering judgment against appellant in that amount.

2. As indicated, although witnesses are not officers of the court, the “costs” attributable to them are nevertheless recoverable pursuant to OCGA § 17-11-1, and appellant concedes this. See OCGA § 17-11-2; Brown v. State, supra; State v. Everett, supra. Compare Peters v. State, supra, and Walton County v. Dean, supra, both of which discuss the recoverability of the fees of court officers and not the recoverability of witness fees by a court officer. The $63 assessed against appellant as the “costs” of witnesses was based upon the affidavits filed by two witnesses in the case. One affidavit purported to be that of a lay witness and sought $14. The other affidavit purported to be that of a police officer and sought $49. With regard to the sum of $14 in “costs” assessed against appellant for the lay witness, the State concedes that the correct amount is $10 pursuant to OCGA § 24-10-24. Since appellant concedes that the authorized fee of a witness would be recoverable against her and since the State concedes that the authorized fee of the lay witness was $10 rather than $14, the trial court is hereby directed to write off $4 from the judgment.

With regard to the affidavit of the police officer, the State concedes that witness fees to on-duty officers would not be authorized. However, the State relies upon OCGA § 24-10-27 (a), which provides, in relevant part, that certain law enforcement officers who are subpoenaed to attend a criminal proceeding “as a witness on behalf of the state during any hours except the regular duty hours to which the officer is assigned, shall be paid for such attendance at a rate fixed by the court, but not less than the per diem paid grand jurors in the preceding term of the superior court of such county or $20.00 per diem, whichever is greater. The claim for the witness fees shall be endorsed on the subpoena showing the dates of attendance and stating that attendance was required during the hours other than the regular duty hours to which the claimant was assigned. The claimant shall verify this statement. The dates of attendance shall be certified by the judge or the prosecuting attorney of the court attended. The [officers’ superior] shall certify that the claimant has been paid no additional compensation nor given any time off on account of such service.” (Emphasis supplied.) The affidavit which was submitted by the police officer in this case would not authorize the payment to him of a witness fee pursuant to OCGA § 24-10-27 (a). The officer did not in his affidavit verify that his attendance at appellant’s trial was required during hours which were other than his regularly assigned duty hours. Even assuming that this particular deficiency might be cured if the trial court was authorized to find that the officer was off-duty when he testified at appellant’s trial, there is still no certification from the officer’s superior that the officer was neither paid additional compensation nor given time off on account of his service.

Since the State concedes that an on-duty officer would not be entitled to a witness fee and since the claim for the witness fee of $49 that was made by the officer in this case is not sufficient to show the applicability of OCGA § 24-10-27 (a), there was a failure of proof that such a witness fee had accrued. See Holloway v. State, supra at 142 (3). “All officers charging costs must always show the authority of the law to do so. [Cit.]” Silverboard v. Iteld, 248 Ga. 589, 590 (2) (285 SE2d 182) (1981). Accordingly, the trial court is hereby directed to write off the $49 from the judgment.

3. Jurors are not officers of the court. However, as indicated previously, recoverable “costs” are not limited to those accruing by officers of the court, but also include such costs as accrue in the trial court as the result of the prosecution. It is clear that jurors are entitled to an expense allowance under statute. See OCGA § 15-12-7 (2). Compare Peters v. State, supra, holding there to be no statutory authority for the sheriff to recover fees for certain enumerated acts. Since there is no dispute that a statutorily authorized expense allowance of $25 was incurred in the trial court for the services of each of the six jurors who tried appellant’s case, the trial court did not err in entering judgment against appellant for $150 as the recoverable “cost” of the jurors’ services.

4. The remaining item of cost was for the services of the clerk of the trial court. Appellant concedes that the assessment in this regard is correct. Accordingly, that element of the judgment is affirmed.

5. For the reasons discussed in Division 2, the trial court erred in entering judgment in the amount of $63 for witness fees and is directed to write off a total of $53 from that amount. In all other respects, the judgment is affirmed.

Judgment affirmed with direction.

Birdsong, C. J., Deen, P. J., McMurray, P. J., and Pope, J., concur. Banke, P. J., Sognier, Ben-ham, and Beasley, JJ., concur in part and dissent in part.

Benham, Judge,

concurring in part and dissenting in part.

While I concur with the majority’s decision on the issues of witness fees and the fee for the services of the clerk of the trial court, my conviction that the fees for jurors and bailiffs are not recoverable from appellant requires that I dissent as to the affirmance of the portions of the judgment imposing those costs.

It has always been the law in this state that costs charged against litigants must be statutorily authorized. “The officer charging costs should always show the authority of the law to exact its payment from the pocket of the citizen.” Peters v. State, 9 Ga. 109, 111 (1850). While it is true that there is a statute establishing compensation for bailiffs and jurors (OCGA § 15-12-7), that statute does not make that compensation taxable to litigants. It was noted in Chambers v. State, 22 Ga. App. 748, 752 (97 SE2d 256) (1918), that there is a statute which “provides for the fixing of [bailiffs’] compensation [cit.], in the same manner as the pay of jurors. It is certainly contemplated that they shall be paid out of the county treasury. The paying of court bailiffs is in other words a legal charge against the county.” I find applicable to the charges in this case for the services of bailiffs and jurors the same holding by which the Supreme Court disallowed part of the costs in Peters, supra: “We are not aware of any fee bill, regulated by Statute, which authorizes such a charge to be made against a defendant; and those who charge costs, and exact its payment, as before remarked, must show the authority of the law to do so.”

The majority’s reliance on Davis v. State, 33 Ga. 531, 533 (1863), ignores the word “charges” in that case’s definition of costs. When that word is considered with the rest of the definition, it is clear that “costs” is not so broad as to include the compensation of every officer of the court, only those compensations which are by statute chargeable to a litigant. The logical extension of the majority’s position would require that unsuccessful litigants bear a proportionate share of all the costs of maintaining a judicial system. If litigants are to pay for the compensation of bailiffs and jurors, should they not pay a pro rata share of the compensation of the salary of the clerk of the court, of the judge, of the solicitor, of the janitorial staff whose efforts are necessary to keep the court facilities operational? They should not, for the same reasons set out in Peters: those are charges the county is required to bear, not the litigants.

Decided December 4, 1987

Rehearing denied December 18, 1987

Larry W. Yarbrough, for appellant.

Patrick H. Head, Solicitor, Melodie H. Clayton, Philip Gold-stein, Assistant Solicitors, for appellee.

I am authorized to state that Presiding Judge Banke and Judge Sognier join in this opinion.

Beasley, Judge,

concurring in part and dissenting in part.

I respectfully dissent, but only in connection with that portion of Division 1 regarding the cost for bailiffs.

The court assessed $100 for “bailiff.” The court services director’s affidavit states that the cost was for two bailiffs for one day at $50 per day, which is their compensation as set by OCGA § 15-12-7 (1). The bailiffs were apparently deputy sheriffs, and the only fee statutorily authorized for the service performed was the $10 for “service in every criminal case before a judge or a judge and jury” as provided in OCGA § 15-16-21 (c) (10). Appellant concedes that this amount, a total of $20, would lie due. That is correct, and the dispute about the difference of $80 should be resolved against the state. Even if OCGA § 15-12-7 (1) applies, the state did not show that the bailiffs served all day in this case.