author: Andrews, Chief Judge.

text:
    A96A1974, A96A1975.
    THOMAS FINANCIAL GROUP, LTD. v. STANDARD CHARTERED BANK; and vice versa.
    (485 SE2d 237)
   Andrews, Chief Judge.

In Case No. A96A1974, The Thomas Financial Group, Ltd. (TFG) appeals from the grant of partial summary judgment to Standard Chartered Bank (SCB) and the grant and denial of various procedural motions by way of certificate of immediate review. In Case No. A96A1975, SCB has filed a cross-appeal addressing the trial court’s grant of partial summary judgment to TFG on SCB’s claim in Count 3 of its amended complaint, alleging breach of contract, which would come into play only if this Court reverses the trial court’s conclusion that the business arrangement between SCB and TFG was void as violative of various federal and state laws and, therefore, unenforceable.

Case No. A96A1974

1. Although TFG has filed 29 enumerations of error, its brief does not comply with Rule 27 (a) (3) of this Court in that there is no statement of the applicable standard of review of these claimed errors. Further, although twenty-nine enumerations are designated, the argument and citation of authority section, in violation of Rule 27 (c) (1), contains only three main headings, alleging (1) that the joint venture between TFG and SCB was legal and should not be void as against public policy (designated as addressing enumerations 1, 4, 5, 6,17,18,19, 20, 21, 22, 23, 24, 25, 27); (2) TFG is entitled to lost profits from the joint venture (designated as addressing enumerations 2, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19); and (3) TFG is entitled to judgment in its favor on all other issues and motions (designated as addressing enumerations 3, 19, 21, and 23).

We exercise our discretion, despite these errors which subject the appeal to dismissal, to consider the three main arguments presented, to the degree that we discern the enumerated errors discussed. Finch v. Brown, 216 Ga. App. 451, 452 (454 SE2d 807) (1995); McHaffie v. Decatur Federal Sav. &c. Assn., 214 Ga. App. 368, 369 (448 SE2d 36) (1994).

2. Viewed under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the facts necessary for our determination are as follows. SCB, an English public company, and TFG, a corporation formed by Michael Thomas in 1984, engaged in business activities beginning in 1986 and continuing through early 1991 dealing with loans funded by SCB which had been originated by TFG and were guaranteed by the federal Small Business Administration (SBA). The loans, if approved by SBA, were guaranteed for 80 percent of the unpaid balance. SCB remained exposed on the unguaranteed portion of the loans if the borrowers defaulted.

The guaranteed portion of the loan was subject to being sold to investors on a secondary market for a percentage of the loan known as a premium. SCB also collected the payments on the loans and thereby earned a servicing fee. Although no written agreement was ever entered into by SCB and TFG, a pattern evolved through their working together on approximately 100 loans over this period of time. Loans would be originated by TFG, approved by the SBA, funded by SCB, and then sold through the secondary market, with TFG and SCB agreeing to share the servicing fee, premiums, and any losses equally.

Efforts were made by SCB and TFG over the course of their dealings to reduce this arrangement to a written agreement, but those efforts were unsuccessful, culminating in SCB officials declining to enter into such an agreement.

As a result of the deterioration beginning in 1990 of the SBA loan portfolio maintained by SCB and its decision to abandon SBA loans, SCB began attempting to sell its portfolio. It was unable to do so, however, because of TFG’s continuing claim to a portion of the servicing fees, which resulted in the initiation of SCB’s declaratory judgment action here at issue. The complaint was filed in 1992, alleging that TFG claimed an “interest as a joint venturer with SCB in the servicing fees” and SCB could not therefore dispose of these loans while TFG asserted this interest. The complaint sought a declaration that the anticipated losses on the loans were greatly in excess of any fees due and that TFG should share in these losses.

In its answer and counterclaim, filed in September 1992, TFG alleged as its third defense that the complaint “is barred by reason of illegality and violation of public policy.” The answer acknowledged that a pattern had developed between SCB and TFG whereby premiums and servicing fees were to be shared, but alleged there was no agreement regarding offsetting losses from one loan toward fees payable on another loan. TFG further alleged that “any agreement or agreements that [TFG] would share losses with [SCB] on any basis would be void as against public policy, applicable regulations, and agreements” with the SBA.

TFG admitted that “it claims a vested ownership interest in fees with respect to the loans in [SCB’s] portfolio which were referred to [SCB] by [TFG], but. . . denies the characterization of its interest or status as that of a ‘joint venturer’ on any particular loan or series of loans and the fees to be derived therefrom.” TFG filed a counterclaim contending that, through this “general pattern” of conducting business, it was entitled to service fees of over $100,000. It also alleged counts in quantum meruit or implied contract on four specific loans; a quasi contract theory regarding office space leased by TFG in 1991; rescission of a side deal on the Pilgreen’s loan; breach of a confidential relationship; and breach of the duty of good faith as a result of which TFG claimed over $2,500,000 in business injury and “lost profits.”

On September 14, 1993, SCB filed its motion for partial summary judgment on TFG’s count regarding lost profits, based partially on TFG’s denial in its pleadings of the existence of a joint venture and the assertion that, if one existed, it was illegal. In its response, on October 19, 1993, TFG contended that its allegations in paragraph 47 of its answer did allege a joint venture and that SCB illegally withdrew in 1991, causing it the claimed business losses in 1991 and 1992. Alternatively, TFG contended that, if that paragraph did not allege a joint venture, justice required that TFG be allowed to add such a claim by amending its counterclaim. A motion to add such a claim was filed that same day, alleging that there was a joint venture, joint enterprise, or partnership “according to oral and written agreements evidenced by part performance” and not limited to particular loans, but “extended in fact to future loans and the series of loans which would have materialized and been consummated in the future.” That same day, TFG also filed its motion to add as a party and defendant in counterclaim StanChart Business Credit, Inc., the corporation which had been proposed as the vehicle in the never consummated written joint venture agreement.

On October 22, 1993, the SBA Office of Inspector General issued two audit reports, one of SCB’s operations and one of loans by Tara State Bank, originated by TFG. One of the conclusions of the audit of SCB was that it had improperly “shared premiums . . . with an associate [TFG] involved with packaging loans.”

TFG then filed its motion for partial summary judgment, denial of which is enumerated as error, seeking the court’s declaration that there was an “oral partnership/joint venture between itself and SCB regarding SBA lending through SCB’s Atlanta office.”

By Thomas’ affidavit of June 17, 1994, TFG added to the litigation its contention that it was not a “loan packager,” but a “bank service corporation” which was not legally prohibited from sharing premiums and losses. TFG had admitted in its answer that it had functioned as a loan packager.

On June 21,1994, SBA General Counsel Spotila, in response to a request for approval of a written contract between TFG and Oconee State Bank regarding SBA loans, the terms of which were comparable to those proposed between SCB and TFG, found the proposed arrangement illegal and subsequently published a Procedural Notice to this effect.

It was in this procedural context that the trial court entered the order appealed.

3. With regard to the various orders enumerated as error which deal with discovery disputes, addition of counterclaims, and other procedural matters, the appropriate standard of review requires that TFG demonstrate that the court abused its discretion in these matters. See, e.g., Intl. Indem. Co. v. Saia Motor cfee., 223 Ga. App. 544 (478 SE2d 776) (1996); Remira, Inc. v. Arnory, 210 Ga. App. 48, 51-52 (1) (435 SE2d 236) (1993). We hereby adopt the trial court’s order as our own with regard to these procedural and discovery matters and we find that there has been no abuse of discretion regarding these matters.

4. We need only to address the illegality of the proposed joint venture and the state of the pleadings to resolve this case. Again, we adopt the trial court’s order regarding this issue, finding that the denial of a joint venture in its answer and counterclaim was binding on TFG and that any such joint venture would have been illegal and unenforceable. We add only the following authority in support of the conclusions reached therein. Moss v. Moss, 265 Ga. 802, 803 (463 SE2d 9) (1995); Drug Line v. Sero-Immuno Diagnostics, 217 Ga. App. 530 (458 SE2d 170) (1995); Cherokee Falls Investments v. Smith, 213 Ga. App. 603, 604 (1) (445 SE2d 572) (1994); Bridges v. Reliance Trust Co., 205 Ga. App. 400, 401 (2) (422 SE2d 277) (1992); Zappa v. Basden, 188 Ga. App. 472, 475 (373 SE2d 246) (1988); Sierra Assoc., Ltd. v. Continental Illinois Nat. Bank &c., 169 Ga. App. 784 (315 SE2d 250) (1984). All deal with requirements for a binding contract and the unenforceability of an agreement to agree.

Walker v. Sutton, 222 Ga. App. 638 (476 SE2d 34) (1996); Ga. Farm Bureau &c. Ins. Co. v. Hand, 211 Ga. App. 703, 705 (440 SE2d 92) (1994); Jabaley v. Jabaley, 208 Ga. App. 179 (1) (430 SE2d 119) (1993); Ditch v. Royal Indem. Co., 205 Ga. App. 478 (422 SE2d 868) (1992); Shaw v. Hughes, 199 Ga. App. 212, 213 (404 SE2d 309) (1991). All deal with admissions in judicio.

Decided March 18,1997

Reconsideration denied April 3,1997

Davis, Matthews & Quigley, Ron L. Quigley, Ronald Tigner, for appellant.

Smith, Gambrell & Russell, Stephen M. Forte, Thomas M. Barton, for appellee.

Case No. A96A1975

5. This appeal is dismissed as moot as the result of our conclusions in Case No. A96A1974.

Judgment affirmed in Case No. A96A1974. Appeal dismissed in Case No. A96A1975.

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

       No argument is presented regarding enumerations 3, 6, 7,10,15,19, 26, 28, or 29, and they are deemed abandoned. Rule 27 (c) (2). This is true even though enumeration 19 is designated in all three major headings.


source: Caselaw Access Project

author: Blackburn, Judge. Beasley, Judge,

license: Public Domain

text:
    A96A2191.
    NATIONAL AMERICAN INSURANCE COMPANY, INC. et al. v. THORNTON et al.
    (485 SE2d 530)
   Blackburn, Judge.

National American Insurance Company, Inc. (National), Fast Freight, Inc., and J. C. Mobley sued Michael Thornton and Michael Thornton, PC. (Thornton) for legal malpractice. Thornton moved for summary judgment which the trial court granted. National appeals from that ruling.

“The standard of review of the trial court’s grant of defendant[’s] motion for summary judgment is a de novo review of the evidence to determine whether there is any genuine issue of material fact as to the elements required to establish the causes of action stated by plaintiff in [its] complaint. The standard for granting summary judgment is that the moving party must demonstrate that there is no genuine issue of material fact, and that undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Citation omitted.) Artlip v. Queler, 220 Ga. App. 775, 776 (470 SE2d 260) (1996). See also Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); OCGA § 9-11-56 (c).

Based on the above standards, the record reflects that the alleged legal malpractice which forms the basis of this case arose out of a wrongful death action which Thornton was retained to defend. The wrongful death action was brought after Mary Atkinson, a pedestrian, was struck and killed by a truck driven by Mobley and owned by Fast Freight. National insured both Mobley and Fast Freight. National retained Thornton to represent both Fast Freight and Mobley, and retained another firm to represent itself. It was agreed, however, that Thornton would try the case on behalf of National as well as Fast Freight and Mobley. According to National and its attorney, the case was one of nonliability or minimal damages, as Mary Atkinson had allegedly failed to yield the right-of-way to vehicular traffic.

The wrongful death action was placed in position twelve on Judge Thompson’s two-week trial calendar in the State Court of Fulton County, which was scheduled to commence on Monday, October 4. Thornton had notice of this calendar, and it provided that there would be no calendar call, that cases would not necessarily be called in the order in which they were published, and that all cases would remain on a two-hour notice. As of the Friday before the commencement of the two-week calendar, Thornton knew the case was “on call” for trial the following week.

As a result of conversations with the calendar clerk, on Tuesday, October 5, Thornton informed National’s claims supervisor, Gulley, that the case was not likely to be reached for trial that week. Later that same day, Gulley received notice from National’s own attorney, Noeltner, that the case was set for trial, and that it was scheduled to commence at 9:00 a.m. the following morning, October 6. Gulley then telephoned Thornton in an attempt to relay this information, but when he could not reach Thornton, he left a message on Thornton’s answering machine. This same day, October 5, someone from Judge Thompson’s staff left a message on Thornton’s office answering machine after 5:00 p.m. directing him to report for trial the following morning at 9:00 a.m.

Concerned that he had not reached Thornton, Gulley called again at 8:45 a.m. EST on October 6 to tell Thornton the case had been scheduled for trial. Not receiving any answer, Gulley left another message. At 9:15 a.m. on October 6, Judge Thompson’s office called Thornton’s office for a second time, and again received no answer. Thornton having failed to report for trial, upon motion, the court struck his clients’ answer. A hearing on damages was held immediately thereafter, and the court entered a default judgment in excess of $400,000 against National, Fast Freight, and Mobley.

1. The plaintiffs contend that the trial court erred in finding, as a matter of law, that Thornton did not receive reasonable notice of the call of the wrongful death action for trial.

According to Thornton, he had no notice of trial until between 10:00 and 11:00 a.m. on October 6, when his secretary called him at a deposition he was attending and informed him that the case had been called for trial. He claims he arrived at his office at approximately 7:30 a.m. on October 6 to prepare for a deposition, was aware of no messages on his answering machine directing him to report for trial at that time, and then left the office to attend the deposition at approximately 8:45 a.m. He also states that he had no staff present in the office on October 6 prior to 10:00 a.m. Our review of the record indicates conflicting representations by Thornton regarding what was on his answering machine on the morning of October 6, when he was alone in his office preparing for depositions. He averred in his January 10, 1996 affidavit that he was in fact present at his office between 7:30 a.m. and 8:45 a.m. On cross-examination at his deposition, he testified that when he arrived at the office at 7:30 a.m. on October 6, he checked, and there were no messages on the answering machine. In his brief in support of his motion to open the default judgment, Thornton represented that his secretary called him at the deposition at 11:00 a.m. on October 6, and advised him that “a message had been left by Judge Thompson’s office after business hours with regard to the scheduling of the trial of this case.”

In view of the fact that the after-hours message was on the answering machine when Thornton’s secretary opened the office at 10:00 a.m., October 6, it necessarily follows that such message would have been present when Thornton checked the answering machine at 7:30 a.m. that same day. Also, Gulley’s 6:00 p.m. message left on October 5 would have been on the answering machine when Thornton checked same the morning of October 6. Thornton’s contradictions must be construed against him. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

We cannot say, as Thornton contends, that reasonable notice must consist of two business hours notice as a matter of law. Nowhere in the record does it even reflect the normal business hours of the subject court. In this case however, Judge Thompson’s calendar simply specified two-hours notice, without reference to business hours. Uniform Superior Court Rule 8.1 provides that the assigned judge shall be solely responsible for scheduling actions for trial, and USCR 8.4 (B) simply provides that there be “reasonable notice to counsel.” In this case, the specific instructions contained in the calendar controlled the conduct of the calendar and superseded the general provisions of USCR 8.4.

One of the issues in this case is whether or not Thornton received actual notice of the scheduling of the original case for trial in accordance with the published calendar instructions. We must view the evidence in this summary adjudication most favorably to National, and such evidence would permit a jury to conclude that Thornton did receive two hours notice of trial. The undisputed evidence reflects that the case was not called for trial until 9:40 a.m., October 6. Therefore, this issue cannot be resolved on a motion for summary judgment, as genuine issues of material fact remain for jury resolution.

2. The plaintiffs further allege that the trial court erred in finding, as a matter of law, that the proximate cause of their damages was their settlement of the wrongful death action after entry of the default judgment, and not the actions of Thornton following the entry of the default judgment.

Thornton continued to represent the plaintiffs for approximately two months after the default, until his employment was terminated and a new attorney was hired. The plaintiffs ultimately settled the case for $275,000, and instituted the present malpractice action against Thornton. The issue in this enumeration is whether or not Thornton breached his duty to his clients after the default judgment was entered and before his employment was terminated, and whether the plaintiffs were injured by such breach, if any.

Thornton knew at approximately 11:00 a.m. on October 6, 1993, the day of trial, that his answer had been stricken and that the case was in default. Thornton was also aware that the trial court had indicated that it would be willing to set aside the default if Thornton had a good reason for not appearing.

While Thornton contends that he attempted to telephone the judge five times without success for several days beginning on October 6, he testified that he never sought an emergency hearing in this matter. Although default judgment was entered and filed October 6, 1993, Thornton took no action to check the court docket or otherwise determine the status of the case prior to filing an inappropriate motion to open default rather than a motion to set aside the judgment. He only became aware that a default judgment had been entered on October 6, 1993, when opposing counsel mailed him a copy of the judgment which he received on November 4, 1993, 29 days after judgment had been entered.

After receiving a copy of the judgment on November 4, Thornton filed a motion to set aside the default judgment. Nineteen minutes later, Thornton filed a notice of appeal to this Court. Thornton correctly argued to the trial court in his brief in support of his motion to open the default that default judgments are not favored in Georgia, and that the rules permitting the opening of defaults should be liberally applied. See Ewing v. Johnston, 175 Ga. App. 760, 764 (334 SE2d 703) (1985); Whitley v. Bank South, N.A., 185 Ga. App. 896, 898 (2) (366 SE2d 182) (1988).

Thornton contends that this Court would have reversed the trial court had the appeal been pursued, rather than being settled by National after his termination. On appeal, all inferences and presumptions are in favor of the validity of a judgment. Lofty v. Fuller, 223 Ga. App. 95, 97 (477 SE2d 30) (1996). Under Thornton’s argument, one must also assume that the trial court would have followed the law, and set aside the default judgment. The trial court would have been free to exercise its discretion in setting aside the default judgment and it would be free of the presumptions which would limit the appellate court in its action.

Parties are charged with the obligation to mitigate their damages and plaintiffs did just that when confronted with a default judgment in excess of $400,000, a limited time for appeal, and a lack of counsel familiar with the events which led to their predicament. Had the plaintiffs not settled their case and unsuccessfully appealed, it would certainly be argued that they had failed to mitigate their damages when they had the opportunity to do so.

Because genuine issues of material fact remain for the jury’s determination with respect to Thornton’s obligations as attorney, which did not end with the issuance of the default judgment, summary judgment was erroneously granted.

Judgment reversed.

Andrews, C. J., McMurray, P. J., Birdsong, P. J., Pope, P. J., Johnson, Smith and Ruffin, JJ., concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

I respectfully dissent.

1. In their first enumeration, plaintiffs contend that there is a question of fact in regard to whether Thornton received reasonable notice of the call of the underlying case for trial, so that summary judgment on this ground was error.

As amended in 1989, USCR 8.4 (B) provides that in actions other than the first ten actions on the published trial calendar, the parties may contact the calendar clerk to obtain permission to await the call of the action for trial upon reasonable notice to counsel. See Green v. Green, 263 Ga. 551, 552, n. 1 (437 SE2d 457) (1993); see also Fulton v. State ofGa., 183 Ga. App. 570, 572 (359 SE2d 726) (1987) (applying USCR 8.4 prior to its 1989 amendment).

When the Atkinson case, which was in the number twelve position on the trial calendar, was called for trial at 9:00 a.m. on October 6, it was on two-hour notice. Counsel was thus entitled to receive actual notice of the trial two hours before it began. As acknowledged by plaintiffs, any call from the calendar clerk to Thornton was not made until after 5:00 p.m. on October 5. Thornton’s testimony was not self-contradictory nor did it conflict with representations in his brief. Thornton testified in his affidavit that on the morning of October 6, he went to his office and checked his answering machine for messages, and the light was not blinking, indicating there were no new messages. In his deposition, he testified that he checked his answering machine and there were no messages. In the brief in support of his motion to open the default, he stated that he did not notice any messages on the answering machine. In his deposition, Thornton testified that when he was informed by his secretary that the case had been called for trial that morning, he interrupted the deposition he was attending in order to telephone the judge’s office and then terminated the deposition. It cannot reasonably be inferred that Thornton actually received the message from the clerk or Gulley and chose to ignore it.

Moreover, it could not reasonably be expected that counsel would actually receive the message from the clerk any sooner than the start of business hours on October 6, which was not two hours before the start of the trial. Without court rule defining “two hours notice” otherwise, it should be construed to mean two business hours, in keeping with the business day orientation of OCGA § 1-3-1 (d) (3). The message did not constitute such two-hour notice for trial at 9:00 a.m. and thus, as a matter of law, was not reasonable notice. The trial court did not err in so concluding. Declaring default at 9:30 a.m. was premature.

2. In their second enumeration, plaintiffs maintain that there is an issue of fact in regard to whether the proximate cause of their damages was the negligent acts and omissions of Thornton or their voluntary settlement of the underlying case. In this regard, they assert that Thornton was also negligent in not diligently seeking to set aside the default judgment and in filing a notice of appeal after filing the motion to set aside the judgment, thereby depriving the trial court of jurisdiction to act on the motion.

“ Tn a legal malpractice action, the client has the burden of establishing three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff. (Cits.)’ [Cits.]” Huntington v. Fishman, 212 Ga. App. 27, 29 (441 SE2d 444) (1994).

A motion to set aside under OCGA § 9-11-60 (d) does not extend the time for filing a notice of appeal, which must be filed within 30 days of the judgment, OCGA § 5-6-38 (a); Austin v. Carter, 248 Ga. 775, 776 (1) (285 SE2d 542) (1982). A motion to set aside may be filed within three years from entry of the judgment complained of. OCGA § 9-11-60 (f). Had it been denied, it would have been appealable in its own right under OCGA § 5-6-35. N. C. Constr. Co. v. Action Mobil-platform, 187 Ga. App. 507 (370 SE2d 800) (1988). In filing both, Thornton preserved the two options. His clients chose neither one.

Even if a jury could find Thornton negligent in not having the default judgment set aside immediately, the damages ultimately suffered by his clients were not proximately caused by him in that they could have withdrawn the notice of appeal and pursued the motion and sought to set aside the default judgment rather than settling the case. See generally Rogers v. Norvell, 174 Ga. App. 453, 457 (2) (330 SE2d 392) (1985); compare Nix v. Crews, 200 Ga. App. 58 (1) (406 SE2d 566) (1991).

Decided March 21,1997

Reconsideration denied April 3,1997

Jones, Copeland, Lefkowitz & Greer, Taylor W. Jones, Rebecca A. Copeland, for appellants.

Shapiro, Fussell, Wedge, Smotherman & Martin, Robert B. Wedge, Mary L. Hahn, for appellees.

“The appellate courts of Georgia have held that failure of counsel ... to receive notice of trial is such a defect as will authorize the setting aside of judgment under authority of OCGA § 9-11-60 (d). [Cit.]” Beach’s Constr. Co. v. Moss, 168 Ga. App. 462, 463 (309 SE2d 382) (1983).

Flint v. Hart, 917 P2d 590 (Wash. App. 1996), relied on by plaintiffs, is distinguishable. In that case, the plaintiff entered into a settlement after obtaining an adjudication that his former law firm had made the omission charged to it, i.e., failed to retain a security interest in the intangible assets of a business which the plaintiff had sold. In this case, the plaintiffs settled the case in lieu of adjudicating the question of whether the default judgment should have been set aside.

Moreover, the present case, unlike Flint, involves litigation malpractice in which the existence of redressable harm depends on the outcome of the litigation. See Coble v. Aronson, 647 S2d 968 (Fla. App. 1994). In a case such as this, the plaintiff abandons its malpractice claim when it settles the underlying litigation while the appeal (or post-judgment motion) is pending, if the appeal or motion would, in all likelihood, have resulted in a reversal of the judgment. See Segall v. Segall, 632 S2d 76, 78 (1) (Fla. App. 1993). That is the case here.


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A96A2209.
    YOUNG et al. v. BRANDT.
    (485 SE2d 519)
   Birdsong, Presiding Judge.

Brandt was injured when a horse threw her and kicked her in the face. The horse was a stallion named Loverboy, trained in dressage. Brandt sued Tamingo Farms, Inc. and Young. Young and Tamingo each owned one-half interest in Loverboy, and Young was Loverboy’s trainer.

Brandt’s complaint primarily alleged the defendants were negligent in using hunter-jumper tack on Loverboy rather than dressage tack, failing to use a lunge line, and placing Brandt in a position of unknown danger. Young was Brandt’s instructor and invited Brandt to exercise Loverboy at an equestrian center where a competition was to be held the next day. Young took the horse there and had supervision of it but did not control the equestrian center.

Brandt had ridden Loverboy before but always with dressage tack, which was more comfortable and secure for her than hunter-jumper tack. When she saw that Loverboy had been saddled with hunter-jumper tack, she expressed concern but accepted Young’s assurance that ‘You’ll be fine.” After Brandt had been exercising Loverboy for a few minutes, Young directed Brandt to execute a certain maneuver. As she did so, Loverboy bucked and threw her off. While Brandt was on the ground, she was kicked in the face by Loverboy, causing considerable skeletal damage.

Judgment was entered on the jury’s $250,000 verdict in Brandt’s favor. Young and Tamingo appeal the judgments and denial of their motions for directed verdict.

Appellants now contend the trial court erred by denying their motion for a directed verdict because any negligence on their part was not the proximate cause of Brandt’s injuries, Brandt assumed the risk of injury, and recovery is barred by the Injuries From Equine Activities Act, OCGA § 4-12-1 et seq. Held:

1. Appellants have waived review of any claim that the Equine Activities Act provided them immunity from suit as a matter of law. Their motion for judgment notwithstanding the verdict stated: “With this brief, the defendants do not contend that they were entitled to judgment as a matter of law concerning their defense that liability is barred by statute. At trial, a question was raised whether the statutorily required warning signs were posted on the premises where the plaintiff was injured. The presence of the warning signs is an integral element of any claim for statutory immunity. As a result, whether or not the signs were present was properly a jury issue.” This statement thus agreed with and acquiesced in the court’s decision to submit the question of the act’s application to the jury. “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further. [Cits.]” Whisnant v. State, 178 Ga. App. 742, 744 (2) (344 SE2d 536).

The statement in the motion for j.n.o.v. controls not only review of that motion but review of the motion for directed verdict as well. “[T]he sole purpose of a motion for judgment notwithstanding the verdict is to permit the court to review and reconsider [its] ruling on the antecedent motion for a directed verdict.” Shetzen v. C. G. Aycock Realty Co., 93 Ga. App. 477, 479 (1) (b) (92 SE2d 114). This is to be the court’s ruling “on the motion for directed verdict made at the close of all the evidence rather than the one made at the close of plaintiff’s evidence.” Wright v. Millines, 217 Ga. App. 464, 465 (1) (458 SE2d 488).

No issue of the act was raised in the motion made at the close of plaintiff’s case, and the only reference in the record to a motion for directed verdict at the close of all evidence appears after a conference in chambers, when appellants’ counsel stated: “[W]e would state our motion concerning a sign which was in place we contend at Wills Park. It turns upon statutory immunity from liability. I believe that is enough to say about that.” By their later acquiescence to the court’s submission of issues under the act to the jury, appellants waived review. Whisnant, supra.

2. Because we find that the trial court erred by denying appellants’ motion for a directed verdict based on assumption of the risk, we need not address appellants’ contention regarding the lack of proximate cause.

3. Appellants contend Brandt conclusively assumed the risk of injury when riding Loverboy. “The defense of assumption of risk requires: ‘ “(1) that the plaintiff had some actual knowledge of the danger; (2) that he understood and appreciated the risk therefrom, and (3) that he voluntarily exposed himself to such risk.”’ [Cit.] Stated another way: ‘ “(T)he doctrine of the assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury.” [Cit.]’ [Cit.] . . . ‘ “In its simplest and primary sense, assumption of risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.” [Cit.] “In by far the greater number of cases, the consent to assume the risk has not been a matter of express agreement, but has been found to be implied from the conduct of the plaintiff under the circumstances,” [Cits.]’ [Cit.]” Gen. Tel. Co. &c. v. Hiers, 179 Ga. App. 105, 106-107 (2) (345 SE2d 652). Although assumption of the risk is ordinarily a jury question (Taylor v. Bloodworth, 198 Ga. App. 186, 187 (400 SE2d 691)), in plain, palpable, and indisputable cases resolution of the issue by a jury is not required. Moore v. Service Merchandise Co., 200 Ga. App. 463, 464 (408 SE2d 480).

Although not properly before us as a matter of defense in this appeal, it must be recognized, nevertheless, that passage of OCGA § 4-12-1 et seq. has substantially changed the law relating to assumption of the risk of injury from engaging in equine activities. The General Assembly of this state has now recognized that as a matter of public policy those who engage in equine activities may incur injuries as a result of the well-known risks associated with those activities and has defined specifically those inherent risks in OCGA § 4-12-2 (7). Thus, when injuries have arisen from risks identified in OCGA § 4-12-2 (7), in most cases, the plaintiff should be found to have assumed the risk, as a matter of law, even when defendants are not asserting the immunity granted under the Equine Activities Act.

In any event, however, even under traditional assumption of the risk standards, we find the trial court erred by denying appellants’ motion for a directed verdict because the evidence showed that Brandt, an experienced, highly capable horsewoman, was aware of all the dangers associated with riding Loverboy yet freely chose to ride him anyway. This constituted assumption of the risk as a matter of law. “Assumption of risk assumes that the actor, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.” (Citation and punctuation omitted.) Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (4) (409 SE2d 524).

Although Brandt testified she was relying on Young’s knowledge of both the horse and her own riding skills, and she contends she did not assume the risk of being thrown and kicked because she did not know Loverboy had any such propensity, her testimony established that she voluntarily assumed the risk of riding this horse with full awareness of the risks associated with so doing. She testified that she knew that the hunter-jumper tack was on and that there was no lunge line. She also testified that she was aware of no defects in the tack. She knew Loverboy was a stallion; knew stallions are unpredictable and can be hard to handle; knew he had bucked with her on prior occasions; knew horses buck, rear up, and can be spooked; knew horses can bolt and can kick; knew horses could be unpredictable, bothered by sudden movements, unfamiliar objects, and unfamiliar people; knew horses could throw a person in any number of ways; and knew horses could kick or injure in any number of ways.

Further, Brandt’s testimony shows she participated in putting the tack on Loverboy that day. While Brandt may have preferred to use the dressage tack, hunter-jumper tack or dressage tack is merely a matter of the rider’s preference. She rode hunter-jumper tack as a child and went to a clinic on hunter-jumper tack.

Moreover, Brandt was not an inexperienced rider. She started riding when she was ten years old and was actively involved in the U. S. Pony Club from ages 10-18. She took riding lessons for years and worked on a farm. In the Pony Club she reached “B” rider status, the third highest ranking, and had an “HA” rating in book knowledge on horses and riding, the highest ranking. Brandt also has an Associate of Arts degree in animal husbandry.

Brandt has ridden other show horses. She rode from three to five times a week at appellants’ farm where she rode several different horses, including Loverboy, and may have ridden Loverboy as many as twenty times. At the time of the accident she was teaching riding to beginners and intermediate level riders, and she returned to teaching riding after the accident.

Considering all of these factors, it cannot be said reasonably that Brandt did not assume the risks of her injuries as a matter of law. Her testimony shows that she had a full appreciation of the dangers involved in horseback riding and particularly riding a stallion, yet freely decided to ride Loverboy knowing that the tack was not to her personal preference and that there was no lunge line. Because she admitted that she knew all horses can buck and kick, and Loverboy had bucked with her, it is immaterial that Brandt did not know that on one prior occasion Loverboy may have bucked and kicked one of the appellants. Brandt is not allowed to say that she did not comprehend this risk which she has admitted was well known to her. This is not a case in which the horse deliberately kicked Brandt; the evidence shows that she was bucked from the horse and was kicked while the horse continued bucking.

Considering all these factors, the only conclusion that can be reached is that this is a case in which it is plain, palpable, and indisputable that Brandt assumed the risk of her injuries, as a matter of law, and the trial court erred by denying appellants’ motion for a directed verdict. Accordingly, the judgment must be reversed and the case remanded to the trial court with direction to enter judgment granting appellants’ motion for a directed verdict.

Judgment reversed with direction.

Andrews, C. J., Johnson, Blackburn, Smith and Ruffin, JJ, concur. McMurray, P. J., Pope, P. J., and Beasley, J., dissent.

Beasley, Judge,

dissenting.

Although I concur in Division 1 of the opinion, I respectfully dissent with respect to Divisions 2 and 3. The judgment of the trial court and the underlying verdict of the jury should be affirmed.

1. The trial court was not remiss in submitting to the jury the issue of plaintiff’s conduct. As in Waits v. Makowski, 191 Ga. App. 794, 795-796 (1) (383 SE2d 175) (1989), so here: “£ “As a general proposition, issues of negligence, contributory negligence and lack of ordinary care for one’s own safety are not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial before a jury. . . .”’ (Cits.) . . . [Considering the reasonable inferences that may be drawn [from the evidence, it] presents matters which should be resolved by the jury. [Cit.]” Accord Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 119 (4) (372 SE2d 265) (1988).

Brandt testified she consented to ride the horse “[b]ecause I trusted Tammy [Young], I relied on her judgment. She was the expert in the situation, she was my instructor, it was her horse, she knew all about her horse and she knew all about my riding ability.” Brandt contends she did not assume the risk of being thrown and kicked because she did not know Loverboy had any such propensity.

On the other hand, appellants counter that Brandt’s knowledge of the risks was substantial, noting she knew Loverboy could buck because he had previously bucked while she was riding him; that she willingly agreed to exercise Loverboy, with no lunge line and hunter-jumper tack rather than dressage tack; and that she knew that horses, and stallions in particular, could behave unpredictably and might be bothered by unfamiliar surroundings.

Appellants contend this evidence required a directed verdict because it shows “[t]he knowledge among the parties here was nearly, if not precisely, equal, and a warning from defendants would have to be met with the response T know.’ ” McNish v. Gilbert, 184 Ga. App. 234, 236 (361 SE2d 231) (1987). But a warning from Young that Loverboy had previously kicked a thrown rider would not have met with such a response because Brandt testified she did not know this and would not have mounted Loverboy if she had known he was a kicker. When Brandt asked if she would be all right with that particular saddle and bridle, Young assured her that she would “be fine.” Since Loverboy’s propensity to kick was an undisclosed risk, Brandt did not have a full appreciation of the dangers involved as a matter of law.

The recent case of Muller v. English, 221 Ga. App. 672 (472 SE2d 448) (1996), does not support the conclusion that Brandt assumed the risk of being kicked, as a matter of law. That case was specifically decided in the context of fox hunting, “a very dangerous sport, over and above the inherent dangers of all equine activities.” (Footnote omitted.) Id. at 676 (2) (c). There was evidence that being kicked by a horse is a “particular risk” of fox hunting, that kicking does occur during hunts, and that plaintiff knew that. Id. at 677-678. Here there was no such evidence about dressage or that Brandt knew kicking does occur during dressage exercises. Muller is inapposite.

The motion for directed verdict based upon assumption of the risk was properly denied.

Decided March 20,1997

Reconsideration denied April 3,1997

Webb, Carlock, Copeland, Sender & Stair, Dennis J. Webb, Marvin D. Dikeman, for appellants.

Finestone & Morris, Bruce H. Morris, Kenneth J. dayman, for appellee.

2. Appellants contend a directed verdict should have been granted because any negligence on their part was not the proximate cause of Brandt’s injuries, in that the incident was not foreseeable because Loverboy had no propensity to buck and kick. “ ‘(T)o support an action for damages for injuries sustained by being bitten or kicked by a horse, it is necessary to show that the horse was vicious and that the owner had knowledge of that fact.’ [Cit.]” McNish, supra at 235. The question is whether Brandt showed Loverboy had any propensity to act as he did. See Banks v. Adair, 148 Ga. App. 254 (251 SE2d 88) (1978). Young testified Loverboy had never kicked anyone. Bandaras, a former employee of Young’s, testified that prior to the Brandt incident, Young returned from a horse show in Florida and stated Loverboy had thrown her and kicked her in the stomach. Brandt testified that Young told her essentially the same thing in the hospital after she was kicked.

Although the only evidence that Loverboy had previously acted similarly concerned a single act, that is sufficient to establish a propensity for an animal to engage in such conduct. Sutton v. Sutton, 145 Ga. App. 22, 25 (1) (243 SE2d 310) (1978); LaHoste v. Yaarab Mounted Patrol, 89 Ga. App. 397, 402 (79 SE2d 570) (1953). Appellants argue that the prior instance of bucking and kicking was unrelated and isolated, but “[t]he test should be whether the one incident was of such a nature as to cause a reasonably prudent person to believe the animal was sufficiently dangerous as to be likely to cause an injury at a later time. [Cit.]” Sutton, supra. This question is usually for the jury and was in this instance. Id. at 26. There was some evidence from which the jury could determine that Young was on notice that Loverboy had a dangerous propensity to buck and kick a thrown rider.

It was not error to deny the motion for directed verdict on the ground of proximate cause.

I am authorized to state that Presiding Judge McMurray and Presiding Judge Pope join in this dissent.


author: Beasley, Judge.

text:
    A97A0059.
    OSBORNE BONDING & SURETY COMPANY ex rel. CASTANEDA v. STATE OF GEORGIA.
    (485 SE2d 235)
   Beasley, Judge.

An indictment charged Castaneda with various theft offenses. He executed a $25,000 appearance bond as principal with Osborne Bonding & Surety Company as surety but failed to appear for arraignment. The court declared the bond forfeited and, following an execution hearing, entered final judgment. About 40 days later, the authorities in the same county acquired custody of Castaneda. Osborne appeals an order holding that Osborne is not entitled to a reduction of the bond amount. Osborne, which had not yet paid the judgment, invokes OCGA § 17-6-72 (d) (1) and (d) (3).

As amended in 1992 (Ga. L. 1992, p. 2933, § 4), subsection (d) (1) required the court to direct remission of 95 percent of the bond amount to the surety if certain conditions were met and if the bond amount had been “paid at any time within 120 days after judgment.” Since Osborne never paid the bond amount, subsection (d) (3) allowing reduction rather than (d) (1) allowing remission controls.

Two sentences comprise (d) (3). Before the 1996 amendment, the first sentence stated, “If, within 120 days after judgment, the surety surrenders the principal to the sheriff or responsible law enforcement officer, or said surrender has been denied by the sheriff or responsible law enforcement officer, or surety locates the principal in custody in another jurisdiction, the surety shall only be required to pay costs and 5 percent of the face amount of the bond.”

The parties presented a consent order under which Osborne would have been allowed to pay only five percent of the amount of the bond, i.e., $1,250. The court rejected it because, among other things, costs were not specified. A hearing as to that issue was held, after which the court met with counsel and questioned the applicability of the statute. To satisfy the court’s concerns, counsel was given additional time to present evidence or request another hearing. None of this transpired. In the subsequent order, the court held that Osborne is not entitled to reduction because it presented no evidence that it played any role in returning Castaneda to the authorities in the jurisdiction.

1. Osborne’s first enumeration relates to subsection (d) (1). As explained above, that part of the statute is inapplicable here.

2. Osborne’s second enumeration addresses subsection (d) (3). This subsection requires that, as a condition to reduction, the surety surrender the principal to the sheriff or other responsible law enforcement officer, that there be a denial of such surrender, or that the surety locate the principal in custody in another jurisdiction. Osborne argues that it was not obliged to present evidence that it met one of these conditions because, by its second sentence, subsection (d) (3) only requires the presentation of evidence by the sheriff or the institution holding the principal. It stated, “If it is shown to the satisfaction of the court, by the presentation of competent evidence from the sheriff or the holding institution, that said surrender has been made or denied or that the principal is in custody in another jurisdiction or that said surrender has been made and that 5 percent of the bond amount and all costs have been tendered to the sheriff, the court shall be authorized to direct that the judgment be marked satisfied and that the writ of execution (fi. fa.) be canceled.” (Emphasis supplied.)

Decided March 18,1997

Reconsideration denied April 3,1997

Stephen E. Boswell, for appellant.

Robert E. Keller, District Attorney,. Albert B. Collier, Assistant District Attorney, for appellee.

This second sentence does require certain facts to be shown by way of evidence from witnesses or entities other than the surety. It relates to the source of the evidence, that is, what will be acceptable and sufficient evidence to warrant a reduction. However, the surety, as the debtor and party seeking a reduction of the debt under the statute, clearly has the burden of producing such evidence. Just as the surety must surrender or locate his principal, so the surety must prove it did so.

The surety earns reduction by fulfilling one of the conditions set forth in the statute; otherwise reduction would amount to an unconstitutional grant of a gratuity. AAA Bail Bonding Co. v. State of Ga., 259 Ga. 411 (383 SE2d 125) (1989). It is a matter of quid pro quo.

The State’s participation in the proposed consent order does not conclusively establish that one of the statutory conditions was met. The court was authorized to require that such fact be established through the prescribed evidence. None was presented although Osborne was given an adequate opportunity. The court’s refusal to partially reduce the judgment was not error.

Judgment affirmed.

McMurray, P. J, and Smith, J, concur.

       Amendments in 1996 do not affect this case.


text:
    A97A0140.
    SANFORD v. THE STATE.
    (485 SE2d 233)
   Beasley, Judge.

Sanford was convicted of rape (OCGA § 16-6-1) and burglary (OCGA § 16-7-1), and his motion for new trial was denied.

A masked intruder wielding a knife broke into the victim’s apartment, demanded money she did not have, and raped her. Within an hour, officers apprehended Sanford walking down a road in a remote area about one mile away. Found in his pocket was a pair of nylon socks, which he explained he had removed after stepping in an ant bed.

The next day, a knife and mask positively identified by the victim as those used by the rapist were found by officers in the area of numerous ant beds 200 yards from the victim’s apartment complex. Officers observed a footprint in an ant bed and a worn foot path leading from the victim’s apartment to the location of the knife and mask and toward the area where Sanford was arrested.

On the authority of a search warrant, officers seized items of Sanford’s clothing and hair and blood samples. A DNA expert testified that semen in the victim’s vagina came from Sanford, and that the probability it was not Sanford’s ranged from one in eight billion to one in 100 or 200 million, depending on which test was used. A fiber specialist testified that fibers matching those taken from Sanford’s clothing were found in hairs from the victim’s cat, in the victim’s pubic hair combings, and in the discarded mask; and that fibers matching those taken from the mask, as well as cat hairs, were found in Sanford’s clothing.

1. Sanford’s first three enumerations raise the general evidentiary grounds but he concedes in his brief that the evidence, if it was all admissible, is sufficient to support the verdict.

2. In his fourth enumeration, Sanford maintains that his trial counsel was constitutionally ineffective because he failed to object to identification by the victim.

Both prior to and at trial, the victim described the rapist’s height (fairly short, approximately 5'2" to 5'6"), build (small stature, wiry), skin color (a very, very dark black man), and hair. Although the rapist removed his mask during the rape, the victim could not describe his face because her eyesight was extremely poor and she purposely did not look at his face. Based on the characteristics the victim had observed, she testified that she felt as though Sanford was the person who raped her, although she had been unable to identify him in a pretrial photographic lineup.

Sanford argues that the courtroom identification procedure was impermissibly suggestive because he was the only African-American at either the defense or prosecution table. He claims that the totality of the circumstances gave rise to a substantial likelihood of misidentification.

Decided March 18,1997

Reconsideration denied April 3,1997.

David M. Simpson, for appellant.

Thomas J. Charron, District Attorney, Joan V. Bloom, Debra H. Bernes, Nancy I. Jordan, Russell J. Parker, Assistant District Attorneys, for appellee.

“This argument misses the mark. The ‘totality of the circumstances’ test. . . applies to extrajudicial pretrial identification procedures such as lineups, showups and photographic displays, not to the in-court procedureG used in this case.” Ralston v. State, 251 Ga. 682, 683 (2) (309 SE2d 135) (1983). Ralston held that “a witness’ failure to make a pretrial identification of the accused is not grounds for striking a subsequent in-court identification.” Id. at 684. Ralston also rejected the contention that an in-court identification was “tainted by the suggestiveness of [defendant’s] position at the defense table and the fact that he was the only black participant in the trial.” Partridge v. State, 218 Ga. App. 580 (462 SE2d 415) (1995) (physical precedent only).

Although the victim was unable to positively identify Sanford as the rapist, she could state facts within her knowledge sufficient to support an opinion that he was the person in question. See Randall v. State, 73 Ga. App. 354, 367 (2) (36 SE2d 450) (1945). “[T]he jury, as in cases of opinion evidence, could have said either that we, upon the consideration of the facts detailed by you upon which you base your opinion, do not accept that opinion and will, therefore, disregard it, or that we will give it credence. [Cit.]” Id.

Since the victim’s identification testimony was admissible, counsel did not deprive defendant of a valid objection to it. Sanford has not carried his burden of showing that counsel’s performance was deficient. See generally Martin v. State, 193 Ga. App. 581, 587 (5) (388 SE2d 420) (1989).

3. Sanford’s fifth enumeration is that the court erred in admitting evidence of a 1969 rape committed by him because it was not a similar transaction.

Given the fiber and DNA evidence, it is highly probable that any error in the admission of the earlier crime did not contribute to the verdict and was not harmful. See Howard v. State, 215 Ga. App. 342, 344 (2) (450 SE2d 824) (1994) and cits.

4. Under our holdings above, the trial court was not obliged to grant Sanford’s motion for new trial.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A97A0235.
    LITTLETON v. THE STATE.
    (485 SE2d 230)
   Smith, Judge.

Jerome Littleton was convicted of the offenses of rape (OCGA § 16-6-1), burglary (OCGA § 16-7-1), aggravated stalking (OCGA § 16-5-91), and aggravated assault with a deadly weapon (OCGA § 16-5-21 (a) (2)). His motion for new trial was denied, and he appeals, contending the evidence was not sufficient to convict him. We disagree and affirm.

Construed to support the verdict, evidence was presented that the victim was Littleton’s estranged wife and that in November 1994, a temporary protective order had been issued enjoining Littleton from “injuring, maltreating, molesting, harassing, harming, or abusing” the victim or their children and from going to her place of employment or within 100 yards of her residence. On April 3, 1995, the victim went to bed at approximately midnight. Her four young children and a friend of one of her sons were inside the house. Her four-year-old was in bed with her.

Some time later, she awoke to find Littleton “over my bed and he had his hand over my mouth and something to my neck.” At the time of the incident, she could not specifically identify the object he held to her neck, but she knew it was a hard, blunt object. The victim described Littleton as being sweaty and having glassy eyes, as well as a foul odor about him. He instructed her not to say anything and not to move. She feared that she might have a heart attack because of heart problems she had been experiencing. Littleton talked about killing himself and then told her to remove her clothes, while he held the object to her neck and his hand over her mouth. He told her he had cut the telephone lines. She stated she complied because her son was in the bed and the other children were in the house; she did not know what Littleton held to her neck, and she thought that if she complied with his instructions, “maybe things would be better for us.” She was “very fearful.” According to the victim, after she removed her clothes, Littleton had sexual intercourse with her against her will. She then walked into her kitchen, followed by Littleton. The telephone lines had been cut, and one of her children climbed through a window and called the police from another residence.

The victim testified that after a police officer arrived, she saw Littleton lay something on a kitchen chair; when she walked toward the chair, she saw that the object was a knife. She had never seen the knife prior to the incident, and she testified that it was not one of her kitchen knives. She believed that the knife was the object Littleton held to her neck in the bedroom. The victim’s son testified that after the police officer began talking with Littleton, he noticed a knife “hanging half out of [Littleton’s] pocket” and later in the chair where Littleton was sitting during his conversation with the officer. The police officer identified a knife at trial as the knife on which Littleton had been sitting; she testified that it was under his left leg. This evidence was sufficient to convict Littleton of all charges.

1. To prove rape, the State must show “carnal knowledge of a female forcibly and against her will.” OCGA § 16-6-1 (a). The victim did not state explicitly that the sexual intercourse with Littleton was done “forcibly.” She did, however, testify concerning her fear for herself and her children, and it is well settled that “lack of resistance, induced by fear, is not legally cognizable consent but is force.” Curtis v. State, 236 Ga. 362, 363 (1) (223 SE2d 721) (1976). She also testified that the intercourse was against her will.

Littleton’s argument on appeal that the victim consented is unavailing. He points out that she waited until the next day to report the rape. The record also shows indisputably that on at least two other occasions Littleton slept at the victim’s home in violation of the temporary protective order and had sexual intercourse with her. Any consideration of these facts, however, and any decision whether the victim consented to sexual intercourse on the night of April 3 or early morning hours of April 4, 1995, are matters solely within the province of the jury; they address themselves to credibility of the witnesses. See generally Johnson v. State, 214 Ga. App. 531 (448 SE2d 274) (1994). As for Littleton’s argument that the only evidence of the rape came from the victim, corroboration of a victim’s testimony is unnecessary to support a rape conviction. See, e.g., Shirley v. State, 188 Ga. App. 357, 361 (2) (373 SE2d 257) (1988). Because the victim described acts constituting the essential elements of rape — force and penetration against her will — evidence was presented authorizing a rational trier of fact to find Littleton guilty of rape under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. As for Littleton’s conviction on the charge of aggravated assault with a deadly weapon, a knife, OCGA § 16-5-21 (a) (2) provides that one commits that crime when he or she assaults “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Id. Although the victim did not initially know the exact identity of the “blunt, hard object” held to her neck, she testified that shortly after the incident she realized that the object was an unfamiliar knife. This evidence, in addition to her son’s testimony that he saw the knife hanging from Littleton’s pocket, and the police officer’s testimony that the knife was hidden under Littleton’s leg, was sufficient circumstantial evidence to enable a rational trier of fact to determine that the State had excluded all reasonable hypotheses, except that of Littleton’s guilt. See generally Harris v. State, 223 Ga. App. 661, 662 (478 SE2d 458) (1996) (issue of whether State met burden of excluding other reasonable hypotheses is question for jury).

3. With regard to Littleton’s burglary conviction, the State was required to prove that Littleton entered the victim’s house “without authority and with the intent to commit a felony or theft therein.” OCGA § 16-7-1 (a). The evidence is in dispute concerning whether Littleton broke in through a window or used his own key to make his entry. This dispute is immaterial, however, because evidence was presented that he entered the house without authority or the victim’s permission. Whether he intended to commit a felony inside the victim’s house was for the factfinder to determine based on the facts and circumstances proved. Igle v. State, 223 Ga. App. 498, 500 (3) (478 SE2d 622) (1996). As noted in Division 2, evidence was presented that Littleton committed an aggravated assault inside the victim’s house. It follows that the jury was authorized to determine that at some point before he entered the house or while he remained in it, he intended to commit the aggravated assault. See Hewatt v. State, 216 Ga. App. 550, 551 (2) (455 SE2d 104) (1995) (requisite intent to commit felony need not be formed at moment of entry but could have been formed while perpetrator “remained on the premises”); Griffin v. State, 148 Ga. App. 311 (251 SE2d 161) (1978).

4. Finally, Littleton’s conviction for aggravated stalking was supported by the evidence presented. One commits aggravated stalking when he or she “follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person” in violation of a temporary protective order or certain other enumerated orders. OCGA § 16-5-91 (a). “[T]he term ‘harassing and intimidating’ means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear of death or bodily harm to himself or herself or to a member of his or her immediate family, and which serves no legitimate purpose.” OCGA § 16-5-90 (a).

Decided March 18,1997

Reconsideration denied April 3,1997.

Letitia B. Delan, for appellant.

Jerome Littleton, pro se.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Anne M. Long, Assistant District Attorneys, for appellee.

It is undisputed that a temporary protective order was issued against Littleton on behalf of the victim and their children in late 1994. Although the victim and the children allowed Littleton to enter the victim’s home prior to the night of April 3, the evidence showed that Littleton on that date did not have permission to come inside the victim’s home and had been informed some weeks before that he was no longer allowed inside the house. Furthermore, in addition to the victim’s testimony that she was afraid and that her telephone wires were cut, the evidence showed that Littleton had the victim’s house “under surveillance” within the meaning of the statute. Evidence was presented, via a neighbor’s testimony, that Littleton drove his truck, without the headlights, illuminated, down the street where the victim lived and also sat inside the truck, with the headlights off, on the victim’s street for a period of time on the night of the attack. In addition, at least one of the victim’s children was “kind of scared” by Littleton’s presence in the house. Viewing this evidence in the light most favorable to the verdict, the jury was authorized to find Littleton guilty of aggravated stalking under OCGA § 16-5-91 (a). See Hooper v. State, 223 Ga. App. 515 (478 SE2d 606) (1996).

Judgment affirmed.

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

       The victim’s son testified that between 11:30 p.m. and 12:30 a.m. he and his friend heard the kitchen window “fall in” and the sound of someone’s foot stepping into the kitchen sink. They also heard the refrigerator being opened and movement as if someone were sitting on the couch. Being fearful, the boys hid for 30 to 45 minutes before they went into the victim’s bedroom, where they discovered Littleton sitting on the side of the victim’s bed with his zipper open. The victim’s son testified that his mother signalled him to call the police and that he woke his sister and sent her through a window to call the police; their telephone lines had been cut.

       Although rape is also a felony, and we have concluded that sufficient evidence was presented to support the jury’s conviction on the rape charge, the indictment specifically charged Littleton with entering the victim’s house without authority and with intent to commit aggravated assault therein. We therefore focus our analysis of the burglary on evidence of aggravated assault, rather than rape.


author: Johnson, Judge.

text:
    A97A0275.
    THOMAS v. THE STATE.
    (485 SE2d 246)
   Johnson, Judge.

Van Kenneth Thomas appeals from his conviction, following a bench trial, of driving under the influence of alcohol to the extent he was a less safe driver, in violation of OCGA § 40-6-391 (a) (1). We affirm.

1. Thomas contends the evidence is insufficient to support his conviction. On appeal, the presumption of innocence no longer applies, and we must view the evidence in the light most favorable to the verdict. We may not weigh the evidence, or speculate which testimony the factfinder chose to believe or disbelieve. Redding v. State, 217 Ga. App. 529 (458 SE2d 168) (1995).

Viewed in this light, the evidence shows that in the early morning hours of July 2, 1995, Thomas and his girl friend were staying in a motel in Douglas, Georgia, when another man tried to break into their room. Thomas’ girl friend called the police between 4:00 and 5:00 a.m., and two officers responded to the call. One of the officers testified that Thomas was “extremely” intoxicated, and that they warned him not to drive until he became sober.

At 6:47 that morning, as that officer drove his patrol car into the parking lot of a nearby restaurant, Thomas followed him in another vehicle and flashed his lights for the officer to stop. Thomas got out of his car and spoke with the officer, who noticed Thomas still smelled strongly of alcohol, was unsteady on his feet, and had bloodshot, glassy eyes. Thomas’ speech was so slurred the officer had difficulty understanding him.

The officer arrested Thomas for DUI, read him the required implied consent warning, and took him to the police station to obtain a breath test. Thomas blew at least twice into the testing machine, but did not blow enough air for it to obtain a reading. He then requested a blood test. The arresting officer construed Thomas’ failure to complete the breath test as a refusal, however, and refused to take him to the local hospital for a blood test.

Thomas contends this evidence is insufficient because the state did not have evidence of the results of any field sobriety tests or chemical tests, the officer did not observe anything wrong with his driving, and the officer did not opine that Thomas was intoxicated to the extent he was a less safe driver. These arguments go to the weight of the evidence, which is a matter for the trier of fact. Based on the officer’s description of Thomas’ speech, behavior, appearance, and odor, a rational trier of fact could have found Thomas guilty of driving under the influence of alcohol to the extent he was a less safe driver. See Duncan v. State, 205 Ga. App. 181, 182 (2) (421 SE2d 336) (1992); see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Thomas claims that the trial court erred in finding he refused to complete the breath test, and that he therefore had a right to a blood test. In most circumstances, a motorist asked to submit to an alcohol test under our implied consent law has a right to an independent test of his own choosing after completing the state’s designated test. OCGA § 40-6-392 (a) (3); see Duckett v. State, 206 Ga. App. 651 (426 SE2d 271) (1992). For the reasons set out below, however, we find Thomas’ claims to be without merit.

Thomas’ contentions regarding his cooperation in the breath test attempt and his right to a blood test are not within the scope of his enumerations of error, which assert only that the verdict is against the evidence and “contrary to law and the principles of justice and equity.” We therefore are not required to consider these claims. See Payne v. State, 219 Ga. App. 318, 319-320 (4) (464 SE2d 884) (1995); cf. OCGA § 5-6-48 (f). We note, however, that there was conflicting testimony regarding the sincerity of Thomas’ efforts to perform the breath test. Finding he intentionally failed to supply a sufficient breath sample was therefore within the purview of the factfinder as judge of the witnesses’ credibility.

Thomas relies upon Burson v. Collier, 226 Ga. 427, 428-429 (1) (a), (2) (175 SE2d 660) (1970), for the proposition that failure to supply a sufficient breath sample may not be considered a refusal. Bur-son, however, is distinguishable. In that case, the accused motorist suffered from emphysema, and the trier of fact did not find he had refused to complete the test. Id. Here, however, the evidence would support a finding that Thomas intentionally refused to complete the test designated by the state, and therefore had no right to obtain a test of his own choosing. See Duckett, supra.

Decided March 20, 1997

Reconsideration denied April 3, 1997.

Before Judge McRae.

Dwayne H. Gillis, for appellant.

Rebecca L. Sims, Solicitor, Wendell B. English, Assistant Solicitor, for appellee.

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A97A0424.
    BONNER v. SMITH et al.
    (485 SE2d 214)
   Birdsong, Presiding Judge.

Appellant/defendant Bobby E. Bonner has appealed pro se from the judgment of the superior court entered in favor of appellees/ plaintiffs Daniel Jackson Smith and Joyce Smith.

This is a suit for damages and loss of consortium for injuries arising from appellant’s averred intentional and negligent tortious conduct when he shot appellee Daniel Smith with a handgun. Appellant, who was incarcerated, twice failed to respond to the call of this case for trial; accordingly, the trial court granted appellees/plaintiffs’ motion to strike appellant’s defensive pleadings and motion for a bench trial. Trial was held, testimonial evidence was provided, and judgment was entered on behalf of appellees as follows: $2,639.48 for medical expenses, $15,000 for lost income, $70,000 for pain and suffering, and $100,000 for punitive damages. Held:

1. Appellant’s enumerations that the trial court erred by not granting his motion to vacate and set aside judgment for insufficiency of service and for lack of jurisdiction and venue are without merit.

The trial court had subject matter jurisdiction. See generally Ga. Const. of 1983, Art. VI, Sec. IV, Par. I; OCGA § 15-6-8 (a) (1).

In his motion to vacate and set aside judgment, filed September 10, 1996, appellant contended that jurisdiction and venue were not proper in the Superior Court of Bibb County as defendant’s “current [residential] address” is at the Bostick State Prison in Baldwin County. Therefore, appellant claimed that jurisdiction and venue were in the Baldwin County Superior Court. The record reflects the trial court did not issue any order denying appellant’s motion to vacate and set aside judgment. This Court will not consider issues which were not passed upon in the trial court. Norwood v. State, 199 Ga. App. 536 (405 SE2d 526).

Further, the record contains no transcript of the evidence at the bench trial. In such situations, an appellate court must “assume that the trial court was correct in its factual finding relative to venue.” Tuggle v. Tuggle, 251 Ga. 845 (1) (310 SE2d 224). Accordingly, assuming arguendo the trial court tacitly denied the motion to vacate and to set aside the judgment, thereby rendering an implicit finding that venue existed, this Court would still be obligated to assume the trial court did not err in such determination. See id.

The record reveals that appellant was personally served with the original summons and complaint at the Law Enforcement Center in Macon, Georgia, in Bibb County on March 21, 1995. See generally OCGA § 9-11-4 (a)-(d). Venue and personal jurisdiction of a trial court do not shift merely because a defendant changes his county of residence subsequent to the commencement of a suit. After appellant was served with original process in Bibb County, personal service of process was not required as to any amended complaint or subsequent pleading. In the Interest of W. R. S., 213 Ga. App. 616, 618 (2) (445 SE2d 367); see also OCGA § 9-11-15 (a) and (b). “Service of the amended complaint by mail was proper.” Day v. Norman, 207 Ga. App. 37, 38 (1) (427 SE2d 31). A party amending a pleading need only certify service of the amendment on the opposite party by mail contemporaneous with the filing of the amendment. See id.; Locklear v. Morgan, 127 Ga. App. 326 (193 SE2d 208).

2. Appellant’s contention that the trial court erred by accepting, without issuing a written order, appellees’ out-of-time amended complaint and motions is without merit. The record does not reveal the presence of a pretrial order; therefore, we must assume that no pretrial order was entered in this case. Further, we will not presume error from a silent record. See generally Williams v. State, 219 Ga. App. 167, 169 (2) (464 SE2d 404). “After the original complaint was served, [appellees were] entitled to file an amended complaint as long as no [pretrial] order was entered in the case. OCGA § 9-11-15 (a).” Day, supra. Prior to entry of a pretrial order, no leave of the court was required before the filing of an amended complaint which did not seek to add a new party. See OCGA § 9-11-15 (a); Clover Realty Co. v. Todd, 237 Ga. 821 (229 SE2d 649).

3. Appellant asserts the trial court erred by disregarding his motions in violation of OCGA § 15-6-21. “The only remedies for violation of the statute are mandamus and impeachment of the judge.” Brooks v. State, 265 Ga. 548, 549 (3) (458 SE2d 349), citing Graham v. Cavender, 252 Ga. 123 (311 SE2d 832). Appellant’s enumeration of error, as crafted, is without merit.

4. Appellant’s enumeration that the trial court erred by denying his demand for a jury trial is without merit. The trial court struck appellant’s defensive pleadings after appellant missed both calendar call and the call of the case for trial (see generally Uniform Superior Court Rule 14); subsequently, appellees’ motion for a bench trial was granted.

Decided March 13, 1997

Reconsideration dismissed April 3, 1997.

Before Judge Culpepper.

In civil suits, the right to trial by jury may be implicitly waived by a party’s conduct. Goss v. Bayer, 184 Ga. App. 730 (362 SE2d 768). “[0]ne may . . . waive the right [to trial by jury] by conduct indicative of the fact that the right is not asserted.” Id. at 731 (2). Appellant, after being duly notified of both the calendar call and the court call voluntarily elected not to take action either to obtain his timely presence in court or to provide for an authorized representative to appear on his behalf at these proceedings. The bench trial was held on August 8, 1996. Appellant received a copy of appellees’ motion for bench trial and to strike his defensive pleadings on August 6, 1996; however, he did not file his objections until August 12,1996, after the bench trial was held. Neither did appellant inform the court of any difficulties nor communicate to the court in any manner, regarding the calendar call or subsequent call of the case to trial. By this repetitive conduct, which ultimately resulted in the striking of his entire defensive pleadings, appellant implicitly waived his right to trial by jury. Compare Goss, supra; see also Robertson v. Central Mut. Ins. Co., 165 Ga. App. 167 (299 SE2d 894); Galanti v. Emerald City Records, 144 Ga. App. 773, 774 (2) (242 SE2d 368). This holding is consistent with the well-established appellate rule that on appeal a party cannot complain of a judgment or ruling of the trial court which his own conduct or legal strategy aided in causing. Williams v. Food Lion, 213 Ga. App. 865, 868 (446 SE2d 221).

Green v. Snellings, 260 Ga. 751 (400 SE2d 2) is distinguishable; although incarcerated, appellant had ample notice of both the calendar call and the court call, and he also had prior notice of appellees’ motions to dismiss appellant’s defensive pleadings and for bench trial. Appellant already had filed a demand for a jury trial; he did not need express notice of the bench trial to safeguard his opportunity to make such demand. The case at bar, unlike Green, supra, involves the issue of waiver of an existing demand for trial by jury. In view of this holding, we need not address the issue of harmless error. Compare Newman v. Greer, 131 Ga. App. 128, 131-132 (205 SE2d 486).

Judgment affirmed.

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

Bobby E. Bonner, pro se.

Dozier, Lee, Graham & Sikes, Joel M. Grist, Jr., for appellees.


text:
    A97A0517.
    JONES v. DESTINY INDUSTRIES, INC.
    (485 SE2d 225)
   Birdsong, Presiding Judge.

Appellant Verlon Jones appeals the order of the superior court granting appellee Destiny Industries’ motion for directed verdict. Appellant brought suit against appellee for breach of an oral contract. Appellant, who was an exclusive dealer of mobile homes for appellee in Sylvester, Georgia, entered an oral contract with appellee to move his business from Sylvester to Yulee, Florida; appellee agreed to provide appellant with an exclusive dealership sales area in the Florida location. Appellant moved to Yulee and incurred approximately $36,500 in relocation expenses. Appellant operated his dealership in the Yulee area for approximately one year and then contacted and obtained from appellee a commitment that he was to remain the exclusive Destiny dealer in Yulee. Approximately five weeks later, appellee notified appellant that it was terminating its contractual agreement with appellant and had selected a new dealership for its homes.

Appellant enumerates that the trial court erred in granting the directed verdict motion based on its determination that the agreement between appellant and appellee was terminable at will and lacked definite duration. Held:

1. The standard for granting a motion for directed verdict is that set forth in Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554).

2. The averred contract in this case was an oral or parol contract. OCGA § 13-1-6 provides: “Parol contracts shall include only contracts in words as remembered by witnesses.” Once evidence is admitted as to the terms of an alleged oral contract, applicable rules of contract construction or interpretation will be utilized to determine its scope and effect. The cardinal rule of contract construction is to ascertain the intention of the parties. OCGA § 13-2-3. Where the intent of the parties is clear and unambiguous, the court will look to the contract alone to determine the parties’ intent. Howell Mill/Collier Assoc. v. Pennypacker’s, Inc., 194 Ga. App. 169, 173 (3) (390 SE2d 257). During its judicial examination of a parol contract, the court should apply appropriately the three-step process of contract construction discussed in Duffett v. E. & W. Properties, 208 Ga. App. 484, 486 (2) (430 SE2d 858). A contract should be construed by examining the agreement in its entirety and not merely isolated clauses and provisions thereof. Id.

3. Mrs. Jones testified that the move to Yulee was made based on the promises made to them by appellee’s agents and that it was her understanding that the Joneses would remain the exclusive dealers for appellee for more than ten months and, at least, for the same four-year time span that they had been the exclusive dealers for them in Sylvester, Georgia. Mrs. Jones believes that Destiny had promised them they would have the line “as long as [they] stayed committed to Destiny,” that is, Destiny would never take the line from them as long as they sold Destiny mobile homes exclusively. She also testified as to various promises expressly made and kept by appellee; none of these express promises, however, pertained to the duration of the exclusive dealership contract. Mrs. Jones does not believe appellee treated them fairly because they were not allowed to continue under the exclusive dealership contract in Yulee long enough to recoup their expenses for moving to that area. She conceded that appellee kept all promises except as to the alleged duration of the exclusive dealership contract and the length of time the market area would be protected. However, appellee did protect the exclusiveness of the marketing area until it elected no longer to sell appellant its trailers. Mrs. Jones and appellant entered their “deal,” regarding the move to Yulee with appellee Destiny and appellee’s vice-president, Donnie Edwards.

Appellant testified and adopted, without objection, the entire testimony of his wife as his own. He further testified as follows: He would not have spent the money, time, effort and trouble to move to Yulee had he expected to have the exclusive Destiny dealership taken away from him in ten months. Appellant conceded that he had gone to Yulee based on a meeting with a Destiny sales representative who told him that the Yulee area had great sales potential, and he talked with a mobile home salesman who worked on the lot at Yulee. It was agreed that appellee’s agents would give him a few thousand dollars DAP money (sales incentive payments) in advance to help him liquidate three homes in his Sylvester lot inventory, to pay the interest on that transaction, and “the promise to protect the territory” from encroachment by other Destiny dealers by giving appellant an exclusive Destiny dealership in that area. At the time he made the decision to move to Yulee in reliance on appellee’s promises, the only thing appellee had told appellant was that they would give him an exclusive dealership in the Yulee sales area for an indefinite period of time. Appellant never had any discussion with appellee regarding any specific period of time that he would have the exclusive dealership in the Yulee sales area. Rather, appellant merely assumed that he would be able to stay in Yulee as long as he remained committed as an exclusive Destiny dealer. Appellant “assumed it would be indefinite as long as [he] stayed committed” to the exclusive sale of the Destiny line.

Applying the three-step test of contract construction in Duffett, supra, it was a question for the court to determine whether the oral contract was entered for an indefinite term. Appellant conceded in open court that the duration of the oral dealership contract was for an indefinite period of time. Moreover, even assuming appellee promised to continue its exclusive dealership contract “as long as [appellant and his wife] stayed committed to Destiny,” any question as to the effect of this phrase in the oral dealership contract created a question for the trial court to determine. The trial court could properly conclude that the duration of the oral contract was for an indefinite period of time. Barker v. CTC Sales Corp., 199 Ga. App. 742 (1) (406 SE2d 88); see generally Duffett, supra.

Whether the dealership contract was an agency contract or a contract of employment, the result under the facts of this case remains the same, the oral contract being for an indefinite duration was terminable at will by either party. Barker, supra at 742 (1); Loy’s Office Supplies v. Steelcase, Inc., 174 Ga. App. 701 (331 SE2d 75); see Atlanta Dairies &c. v. Grindle, 182 Ga. App. 409, 410 (1) (356 SE2d 42); Walker v. Gen. Motors Corp., 152 Ga. App. 526 (263 SE2d 266). An indefinite hiring may be terminated at the will of the parties (OCGA § 34-7-1); thus, a promise of employment for an indefinite term is insufficient to support a cause of action for breach of an employment contract. Barker, supra at 742 (1). Additionally, OCGA § 10-6-33 pertinently provides that “[generally, an agency is revocable at the will of the principal. ... If, however, the power is coupled with an interest in the agent himself, it is not revocable at will.” “In order to make such a power irrevocable because coupled with an interest, that interest must be in the subject-matter of the power or agency, and not merely in the profits or proceeds resulting from an exercise of the power.” Wheeler v. Pan-American &c. Corp., 48 Ga. App. 378 (1) (172 SE 826); accord Cutcliffe v. Chesnut, 126 Ga. App. 378, 382 (1) (190 SE2d 800). We find that any power of agency at issue in this case would have been for an indefinite period of time, and would not be coupled with an interest in the agent himself within the meaning of OCGA § 10-6-33; therefore, any such power would be revocable at will. Compare Wheeler, supra; Gunter Bros. v. Cooper Tire &c., 87 Ga. App. 626, 627 (74 SE2d 744).

Miami &c. Farm v. Southern &c. Co., 214 Ga. App. 624 (448 SE2d 482), involving a peach crop harvesting agreement that was intended by the parties to continue no more than for a single season, is distinguishable from this case and not controlling. Also distinguishable is Ray v. Hemphill, 97 Ga. 563 (25 SE 485), which involves a relationship not merely of principal and agent; it had been expressly stipulated in the contract creating the security in Ray, supra, that the power and agency should be irrevocable and this stipulation was made as a part of the consideration moving to the mortgagee (id. at 567).

Decided March 17, 1997

Reconsideration denied April 3, 1997

Before Judge Horkan.

J. Hugh Gordon, for appellant.

Moore, Tyndall & Castellow, Lester M. Castellow, for appellee.

Appellant’s reliance either on the doctrine of promissory estoppel or on the doctrine of additional consideration is misplaced. The doctrine of additional consideration is not recognized in this state. Morris v. Park Newspapers &c., 149 Ga. App. 674, 675 (3) (255 SE2d 131). Promissory estoppel has no application in the instant case where the promise relied on, if any, was for employment or an agency relationship for an indefinite period. Barker v. CTC Sales Corp., supra at 743 (2); Loy’s Office Supplies v. Steelcase, Inc., supra at 702. A discharged agent’s or employee’s mere understanding, assumption and conclusion concerning the duration for which a contract terminable at will shall remain in full force and effect certainly are not enforceable. Id.

Judgment affirmed.

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


text:
    A97A0011.
    SMITH v. THE STATE.
    (485 SE2d 572)
   Johnson, Judge.

Joseph Smith, Jr. contends that the evidence was insufficient to support his burglary conviction because the unfinished house from which he removed a fireplace was not completely enclosed or secured and had not yet been used as a dwelling. This argument is without merit.

Under OCGA § 16-7-1 (a), “[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or enters or remains within any other building, railroad car, aircraft, or any room or any part thereof.” (Emphasis supplied.)

The indictment in this case alleged Smith “without authority and with intent to commit a theft therein, enter[ed] the building of Greg Mills d/b/a M & M Custom Homes.” (Emphasis supplied.) Before trial, the parties stipulated that Smith entered the house without authority and removed a fireplace. Both parties agreed that the only issue for consideration by the trial court was whether the house, which was under construction, was sufficiently complete so as to come within the meaning of OCGA § 16-7-1 (a).

At trial, evidence was introduced showing that on the night the fireplace was taken, the house had a roof, walls, windows and some vinyl siding. With the exception of the garage door and the door leading from the garage to the interior of the house, all exterior doors were installed. When Mills left for the evening, the windows and doors were all closed. Smith and a co-defendant entered the house through the garage.

We are not persuaded by Smith’s argument that the evidence was insufficient to authorize a burglary conviction because the house had not yet been used as a dwelling. Whether the house was a dwelling is irrelevant inasmuch as the indictment did not charge Smith with entering a dwelling house, but with entering a building. The issue for our determination, therefore, is whether the house under construction constitutes a “building” within the meaning of OCGA § 16-7-1 (a).

The word “building” is not defined in the statute. And, after a diligent search, we have found no Georgia cases specifically addressing the issue of whether an unfinished house can properly be considered a “building” as that term is used in OCGA § 16-7-1 (a). Nonetheless, for the reasons set out below, we agree with the trial court’s ruling that the house entered, though unfinished, is a “building” as contemplated by the burglary statute.

Where our appellate courts have considered the meaning of the word “building,” we have defined or interpreted it broadly. For instance, in Williams v. State, 105 Ga. 814, 815 (32 SE 129) (1898), the Supreme Court of Georgia considered whether the theft of pigeons from a stationary, wire-enclosed chicken house fell within the purview of a larceny statute which prohibited theft from “any dwelling-house, store, shop, warehouse, or any other building.” The court defined “building” as “an edifice for any use; that which is built, as a dwelling-house, barn, etc.,” and held that the chicken house came within the meaning of the statute. Id. at 815. In Floyd v. State, 207 Ga. App. 275, 280 (1) (427 SE2d 605) (1993) (discussed more fully below), this Court recited the same definition and held that a garden center enclosed by a fence and unmortared blocks contiguous to a store was a part of the store’s main building.

The Supreme Court of Georgia offered a more elaborate definition of “building,” albeit in a civil proceeding involving the interpretation of a restrictive covenant. It defined “building” as “a structure in the nature of a house built where it is to stand; as commonly understood, a house for business, residence, or public use, or for shelter of animals or storage of goods, and very generally, but not always, the idea of a habitation for the permanent use of man, or an erection connected with his permanent use.” Turner v. Standard Oil Co. &c., 220 Ga. 498, 502 (2) (140 SE2d 208) (1965). The unfinished house in the instant case clearly satisfies the definitions set out in each of these cases.

A survey of appellate court decisions from other states which have burglary statutes similar to Georgia’s reveals that, in every case we located involving a house or similar structure under construction, the unfinished structure was held to come within the meaning of the term “building.” In Clark v. State, 33 NW 436 (Wis. 1887), the Wisconsin Supreme Court held that a house under construction, which had walls, sides, and a roof, though no windows or doors, was a building under that state’s burglary statute, and that “building” does not necessarily mean a structure so far completed as to be in all respects fit for the purpose for which it was intended. Id. at 437. It need only be so far complete that it may be used for shelter or occupation of man or animal or storage of tools or other personal property. Id. at 438. Similarly, in People v. Angel, 577 NYS2d 116 (1991), the appellate division of the New York Supreme Court held that a house under construction which needed windows, a skylight and interior work before it was completed was a “building” for purposes of the burglary statute. And, in People v. Gillespie, 176 NE 316 (Ill. 1931), the Supreme Court held that a tool shed under construction comes within the “other buildings” language used in Illinois’ burglary statute, despite the fact that no doors or windows had been installed. Id. at 318 (1).

As with the other states’ burglary statutes, Georgia’s statute is very broad and does not limit its application to buildings of any particular type or in any particular condition. To hold that a structure is not a building simply because it is not perfect for the purpose for which it is eventually to be used, would be to give the statute a stricter construction than we are disposed to place upon it. See generally Clark, supra at 438. Indeed, it appears that the legislature, by placing the word “any” before “building,” intended that the statute include búildings of whatever kind. Furthermore, we note that this court has affirmed burglary convictions where the house burglarized was under construction, although the specific issue of whether an unfinished house is a “building” within the meaning of the burglary statute was not raised. See, e.g., Davis v. State, 134 Ga. App. 750 (216 SE2d 348) (1975); Thurston v. State, 186 Ga. App. 881 (368 SE2d 822) (1988).

We find the decisions in cases such as Clark and Angel persuasive, and hold that a “building” under the burglary statute includes a house under construction which is so far completed as to be capable of providing shelter to people, animals, or property, such as the house in this case. We note that this holding is consistent with the definitions of “building” set out in Turner, Williams, and Floyd, supra.

Decided April 3, 1997.

Before Judge Ozburn.

William D. Kelly, for appellant.

Alan A. Cook, District Attorney, for appellee.

Smith argues that the structure is not a building because it is not “wholly enclosed and secured.” This language is taken from Floyd, supra, and Dixon v. State, 165 Ga. App. 133, 135 (2) (299 SE2d 608) (1983), cases which have very limited applicability here. In Dixon, we held that an enclosed area inside a grocery store was a “room” for the purposes of the burglary statute because it was “wholly enclosed and secured as a room.” Id. In Floyd, we held that a garden center constructed of chain link fencing and unmortared blocks was “any room or any part” of the adjacent retail building within the meaning of the burglary statute. Floyd, supra at 278-281 (1). Neither case involves houses or other structures under construction. Nor does the court in either case decide whether the structure at issue is a building. In any event, we note that the areas at issue in Floyd and Dixon were held to be “wholly secured and enclosed” despite the fact that in Floyd there was an opening above the fence and the blocks were movable; and in Dixon the room had no ceiling and could be entered by reaching over the door and unlatching it. Thus, the “wholly enclosed and secured” language does not require that the structure contains no possible means of entry. The evidence was sufficient to authorize Smith’s conviction of burglary. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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