text:
    A91A1321.
    CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS v. ALLIED READY MIX, INC.
    (412 SE2d 622)
   Carley, Presiding Judge.

Appellant-defendant (Owner) contracted with Georgia Mountain Contracting, Inc. (Contractor) for the construction of a building. Appellee-plaintiff (Materialman) supplied materials which were used in the project. When the Materialman was not paid, it filed its claim of lien against the Owner’s property and filed suit against the Contractor. After obtaining a judgment against the Contractor, the Material-man brought the instant lien foreclosure action. The Owner answered and raised, among its other defenses, payment to the Contractor of all but $15,932.02 of the full contract price. After discovery, the Materialman moved for summary judgment. The trial court granted summary judgment in favor of the Materialman and the Owner appeals.

The contract price as between the Owner and the Contractor establishes the maximum extent to which the Owner’s property may be subjected to liens. If the Owner had actually paid the full contract price to the Contractor and the Contractor had actually applied the full contract price toward the payment of the materialmen and laborers, then the Owner would have a complete defense to the instant lien foreclosure action. It is undisputed, however, that the Owner has paid all but $15,932.02 of the contract price to the Contractor. Accordingly, the owner clearly has no viable defense as to that unpaid $15,932.02. The Owner contends, however, that the Materialman has no viable claim in excess of $15,932.02 because the Owner is entitled to a credit for all such partial payments as have previously been made to the Contractor. “[SJhort of a complete defense, the [OJwner is also entitled to credit for any sums paid to the [CJontractor which were properly applied to bills for labor and material. ‘(T)he [OJwner is bound for the contract price and is bound to see that to the extent of this price the amounts paid to the [CJontractor are appropriated by him to the payment of valid claims of materialmen and laborers. . . .’ [Cits.]” (Emphasis omitted.) Sanford v. Hodges Builders Supply, 166 Ga. App. 86, 89 (3) (303 SE2d 280) (1983). Accordingly, the issue for resolution is whether a genuine issue of material fact remains as to the Materialman’s claim to the extent that it exceeds the unpaid $15,932.02.

At trial, the evidentiary burden would be on the Owner to establish that such sums as it had paid to the Contractor in partial payment of the contract price were properly appropriated by the Contractor toward payment of the materialmen and laborers. On summary judgment, however, the initial burden was on the Material-man to negate the Owner’s defense. Nothing in the Materialman’s motion for summary judgment purported to address the issue of the owner’s entitlement to a credit for such sums as the Owner had paid to the Contractor in partial payment of the contract price. Accordingly, there was no evidentiary burden on the Owner to come forward with evidence as to that issue.

Moreover, even if there had been a shift in the burden to the Owner, the record nevertheless shows that, in opposition to the Materialman’s motion, the Owner did submit evidence as to its entitlement to a credit such as would limit the Materialman’s claim to $15,932.02. This evidence was in the form of an affidavit given by the president of the Contractor, who averred that the Contractor had “directly paid to suppliers and materialmen” an amount which was at least equal to that which the Contractor had been paid by the Owner. Compare Dallas Building Material v. Rose, 191 Ga. App. 783 (383 SE2d 151) (1989) (affidavit of the owner deemed hearsay and affidavit of the contractor did not specify that funds received from the owner had been paid to the materialmen and laborers); Shuman-Mann Supply Co. v. Weaver, 162 Ga. App. 422 (291 SE2d 562) (1982) (affidavit of contractor averred only that sums paid by the owner had been paid to materialmen or laborers). Attached to the affidavit and identified as a business record of the Contractor was a computer printout which supported the averment of the affiant that an amount at least equal to that which the Contractor had been paid by the Owner had, in turn, been “directly paid to suppliers and materialmen. . . .” Compare Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 646 (3) (171 SE2d 782) (1969) (affidavit of contractor not supported “with facts as to what the claims may have been for, or the amounts thereof or as to the amounts that he may have paid to these people, or who they may have been”). Even if this evidence may not have been sufficient to authorize the grant of summary judgment in favor of the Owner, construing it most favorably for the Owner as the non-moving party, it was certainly sufficient to demonstrate the existence of a genuine issue of material fact so as to preclude the grant of summary judgment in favor of the Materialman. “Assuming the accuracy of [the Owner’s evidence, the Materialman] would be entitled to a special lien of only [$15,932.02] ([the difference between the full contract price and the amounts that were shown to be paid over by the Contractor to other materialmen and laborers]), rather than the [full amount of the lien sought by the Materialman and] awarded by the trial court. Of course, the jury may not accept all of the [Owner’s evidence], but it was at least sufficient to create a genuine factual issue as to the amount of the lien, and the grant of summary judgment was consequently in error.” Taverrite v. Lowe’s of Franklin, Inc., 166 Ga. App. 346, 348 (1) (304 SE2d 78) (1983). “Only after resolution of this factual question can there be a proper determination as to the amount of the special lien to which [the Materialman] is entitled. Under this evidence, it was error for the trial court to grant summary judgment for [the Materialman] which had the effect of granting to [the Materialman] a special lien against [the Owner’s] property in a specific amount.” Sanford v. Hodges Builders Supply, supra at 89 (3).

Judgment reversed.

Beasley, J., and Judge Arnold Shulman concur.

Decided November 19, 1991.

Whelchel, Dunlap & Gignilliat, William L. Rogers, Jr., Thomas S. Bishop, Madeline S. Wirt, for appellant.

Small & White, Gus H. Small, Jr., Craig B. Lefkoff, for appellee.


source: Caselaw Access Project

author: Carley, Presiding Judge.

license: Public Domain

text:
    A91A1345.
    WASHINGTON v. CITY OF ATLANTA.
    (412 SE2d 624)
   Carley, Presiding Judge.

Without the benefit of counsel, appellant appeared in municipal court and entered guilty pleas to charges that she had violated municipal ordinances. Thereafter, she petitioned the superior court for a writ of certiorari, asserting that her guilty pleas had not been entered after a knowing and intelligent waiver of counsel. When the superior court denied appellant’s petition for the writ of certiorari, she applied to this court for a discretionary appeal and the instant appeal results from the grant of her application.

“Courts are to ‘. . . satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel. . . .’ [Cits.]” Ward v. State, 248 Ga. 60, 64 (3) (281 SE2d 503) (1981). “ ‘Waiver of counsel and the voluntary, intelligent entry of guilty pleas, cannot be presumed from a silent record, but must be affirmatively shown by the record, or by an allegation and evidence. [Cits.]’ [Cits.]” Warner v. Jones, 241 Ga. 467, 468 (246 SE2d 320) (1978). “It is the responsibility of the trial judge, when the accused is without counsel, to clearly determine whether there has been a proper waiver. [Cit.] ” Campbell v. State, 128 Ga. App. 74, 76 (1) (195 SE2d 664) (1973). In the instant case, the contention is that the municipal court met its responsibility in this regard when, in the context of a mass arraignment, it informed appellant and the other defendants of their rights, including the right to counsel. In Turner v. State, 162 Ga. App. 806 (1) (293 SE2d 67) (1982), however, we held that “it is difficult to imagine a mass arraignment procedure which could satisfy the trial court’s burden.” Here, as in Turner, supra at 806-807 (1), “we find there was no examination by the court of the circumstances of this defendant’s waiver of counsel. The court’s burden ... is to investigate these circumstances personally with particular regard and attention to the nature of the crimes charged and the possible penalties. . . . [T]hat burden was not met in this case. . . .” (Emphasis supplied.) “Because the record in the present case reveals without dispute that the appellant was not represented by counsel and that no inquiry whatever was made into [her] understanding of the consequences of the plea[s], we must conclude that an affirmative waiver of rights was not established, with the result that the [municipal] court erred in accepting the plea[s]. [Cits.]” Lewis v. State, 191 Ga. App. 509, 510 (2) (382 SE2d 207) (1989). It follows, therefore, that the superior court erred in denying appellant’s petition for a writ of certiorari.

Decided November 19, 1991.

Harry S. Gardner, for appellant.

Raines F. Carter, for appellee.

Judgment reversed.

Beasley, J., and Judge Arnold Shulman concur.


author: Judge Arnold Shulman.

text:
    A91A1379.
    BAUMGARTNER v. THE STATE.
    (412 SE2d 874)
   Judge Arnold Shulman.

The appellant was found guilty on an indictment charging that she had sold alcoholic beverages “to inmates sentenced to Decatur County Correctional Institute.” The statute which the appellant was accused of violating was OCGA § 3-3-25 (a) (1) (A), which specifies, in pertinent part, that “[n]o person knowingly and intentionally shall . . . sell . . . alcoholic beverages to . . . [a]ny person confined in any jail, penal institution, correctional facility, or other lawful place of confinement. ...”

The transaction in question took place at a convenience store where the appellant worked as a cashier. The state’s evidence consisted in its entirety of testimony from two employees of the Decatur County Correctional Institute concerning certain statements the appellant had made to them regarding the incident. The first of these employees, Watson Phillips, testified that the appellant had telephoned him at his home on December 4, 1990, to report that she “had sold . . . wine and beer ... to the inmates that worked on the [county prison] farm.” He stated that he asked her why she had not called the “camp, the warden or somebody like that,” and that she responded that the inmates had been “standing there with her, and she was afraid to do that.”

Mr. Phillips reported the matter to the assistant warden of the correctional facility, and the latter subsequently went into the convenience store to purchase a soft drink and a pack of cigarettes. He testified that he spoke with the appellant about the incident at this time and that she told him she “did not realize that it was against the law to sell alcohol to inmates and that the reason she did it was because she was scared.”

The appellant’s testimony was fully consistent with that of the state’s witnesses. She stated that three men had been involved in the incident and that one of them had put two bottles of wine on the counter while another paid for them. She testified that she was alone in the store at the time and that “[t]here was nobody out in the parking lot and ... I was not going to argue anything with them.” She added that these same three men had come into the store on a previous occasion, when other customers were present, and that one of them had told her on that occasion that “he was an habitual violator; he was an alcoholic” and had “asked out loud if I had any objection to serving convicts.” However, she testified that the men had “scattered” through the store during this previous visit without purchasing anything.

1. We find this evidence wholly insufficient to support the appellant’s conviction. In the first place, the three men in question were never identified, and there was no evidence that they were in fact inmates of the Decatur County Correctional Institute, much less that they were “confined” to that or any other such facility within the contemplation of OCGA § 3-3-25 (a) (1) (A). In the second place, the undisputed evidence affirmatively negates any inference that the appellant acted with criminal intent in allowing the men to make the purchase.

“A person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6. As previously indicated, the appellant testified that she had acted out of fear in allowing the men to purchase the wine, and there are no circumstances whatever which could be construed as inconsistent with her testimony in this regard. Furthermore, the officials of the Decatur County Correctional Institute learned of the incident only because the appellant herself reported it to them, presumably in the belief that they needed to monitor their inmates more closely. Based on the record before us, we are at a complete loss to understand how her conduct could reasonably be construed as criminal under these circumstances, and we consequently reverse her conviction. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Redmond v. State, 252 Ga. 142 (312 SE2d 315) (1984).

2. The remaining issues raised by this appeal are rendered moot by the foregoing.

Judgment reversed.

Beasley, J., concurs. Carley, P. J., concurs in judgment only.

Decided November 19, 1991.

Gilbert J. Murrah, for appellant.

Richard A. Epps, Solicitor, for appellee.


text:
    A91A1402.
    ECKMAN v. THE STATE.
    (413 SE2d 221)
   Judge Arnold Shulman.

Following a non-jury trial, the appellant was convicted of contributing to the delinquency of a minor in violation of OCGA § 16-12-1 (b) (2). In this appeal, his sole contention is that the evidence was insufficient to support the conviction.

The state’s evidence showed that on September 15, 1990, the alleged victim, a 13-year-old girl, appeared at the appellant’s home at the request of the appellant, and against the express desires of her mother, at a time when his two 19-year-old male friends Robert and Jay were visiting him. The child’s mother thereafter arrived at the appellant’s house, whipped the child with a belt and took her back home. However, a short while later, with the assistance of the appellant’s girl friend, the child returned to the appellant’s house with a suitcase and informed him that she was leaving home. The appellant initially told her to stay on the porch but then ultimately advised her that “it might be best that I go with Robert.” She thereafter left with the appellant’s two male friends and did not return until approximately two days later, when she was discovered in the appellant’s backyard. The child’s mother testified that the appellant never advised her that her daughter was at his house and. that he had disavowed any knowledge of her whereabouts during the search for her. The appellant contended that he was aware the child intended to run away from home, but denied that he encouraged her to leave with his friends or that he had knowledge that she had departed with them.

“A person commits the offense of contributing to the delinquency, unruliness, or deprivation of a minor when: He knowingly and willfully encourages, causes, abets, connives, or aids a minor in committing an act which would cause such minor to be found to be an unruly child as such is defined in Code Section 15-11-2, relating to juvenile proceedings. . . .” OCGA § 16-12-1 (b) (2). An “unruly child” as set forth at OCGA § 15-11-2 (12) (D) means a child who: “[w]ithout just cause and without the consent of his parent or legal custodian deserts his home or place of abode.” While the appellant does not deny that the minor’s conduct brought her within the definition of an unruly child, he contends that there is no evidence that he knowingly and wilfully encouraged, caused, aided or abetted such conduct. We disagree. The evidence, considered in its entirety, was sufficient to enable a rational trier of fact to find the appellant guilty of contributing to the delinquency of a minor beyond a reasonable doubt. See OCGA § 16-12-1 (b) (2). See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided November 19, 1991.

Glover & Davis, R. Keith Prater, for appellant.

John H. Cranford, Solicitor, for appellee.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


author: McMurray, Presiding Judge.

text:
    A91A1825.
    MEDICAL DOCTOR ASSOCIATES, INC. v. LAB-QUIP COMPANY.
    (412 SE2d 625)
   McMurray, Presiding Judge.

Lab-Quip Company (plaintiff) brought an action against Medical Doctor Associates, Inc. (defendant) and alleged that defendant failed to make monthly rental payments in the amount of $2,500 under terms of an equipment lease agreement entered into between the parties. Defendant admitted that it entered into a lease agreement for medical equipment with plaintiff, but alleged that it was not responsible for payments under the lease agreement because the equipment never “functioned properly nor has it been used commercially by the Defendant.” Defendant counterclaimed for return of a $10,000 down payment.

A bench trial was conducted and the trial court entered, in pertinent part, the following order: “Plaintiff . . . and Defendant ... entered into a six-month minimum rental contract with monthly rental of $2,250.00 for medical instruments, to wit: (a) Coulter S7-120; (b) NOVA IV; (c) Roche Cobas Bio; and (d) MLA 600. . . . Pursuant to the rental contract, Defendant. . . paid an initial $10,000.00 to Plaintiff . . . which was refundable to Defendant if Defendant optioned to purchase the instruments. . . . Defendant . . . did not exercise its option to purchase the instruments and is not due any return of the $10,000. . . . The actions of the parties and the terms of the rental contract evidence . . . that this was a severable contract. . . . The rental contract was legally modified to exclude the MLA 600 and the monthly rental was reduced to $2000.00. . . . [T]he Coulter S7-120, NOVA IV, and Roche Cobas Bio instruments functioned in compliance with the rental contract obligations. . . . Defendant. . . has not carried its burden of proof with regard to its asserted affirmative defenses of accord and satisfaction and failure of consideration. . . . Defendant . . . withheld the contracted instruments (Coulter S7-120, NOVA IV, and Roche Cobas Bio) from Plaintiff for ten (10) months without making any monthly payments to Plaintiff. . . . Defendant . . . did not return the pneumatic glassware for the Coulter S7-120. The reasonable replacement cost for used glassware is $2,500.00. . . . The electrodes for the NOVA IV needed replacement at a cost of $1,448.00. . . . Plaintiff’s damages pursuant to the rental contract provisions are $24,199.76. ... [A] bona fide controversy existed between the parties, and there is no evidence of bad faith or stubborn litigiousness or unnecessary trouble and expense. Therefore, the Court DENIES Plaintiff’s prayer for attorney’s fees pursuant to O.C.G.A. § 13-6-11.

“IT IS HEREBY ORDERED AND ADJUDGED:

“1. That Plaintiff shall have judgment against the Defendant in the total amount of $24,199.76, plus $37.00 court costs. Such sum was calculated in the following manner: (a) Non-payment by Defendant ... of ten months rental at $2,000.00 per month = $20,000.00 .... (b) Replacement by Plaintiff of Coulter pneumatic pump not returned by Defendant . . . = $2,500.00. (c) Electrode replacement on NOVA IV = $1,448.00. ... (d) Freight on Coulter S7-120 = $231.82. ... (e) Freight on NOVA IV and Roche Cobas Bio = $269.94. ...

“2. That Defendant shall take nothing on its counterclaim.” This appeal followed the denial of defendant’s motion for new trial. Held:

1. In the first two enumerations, defendant contends the trial court erred in finding the lease contract severable and in finding the lease agreement, “legally modified.”

(a) “ ‘The issue of the severability of a contract is determined by the intention of the parties, as evidenced by the terms of the contract. Code Ann. § 20-112 [now OCGA § 13-1-8]; Spalding County v. Chamberlin & Co., 130 Ga. 649, 654 (61 SE 533) (1908).’ Dozier v. Shirley, 240 Ga. 17, 18 (239 SE2d 343) (1977). ‘If it appears that the contract was to take the whole or none, then the contract would be entire. Clark, Con. 657.’ Broxton v. Nelson, 103 Ga. 327, 331 (30 SE 38) (1897); Dolan v. Lifsey, 19 Ga. App. 518, 519 (91 SE 913) (1917).” Horne v. Drachman, 247 Ga. 802, 804 (2), 805 (280 SE2d 338). “Whenever there is a contract to pay a gross sum for a certain and definite consideration, the contract is entire, and is not apportionable either at law or in equity. Barnes v. Goodner, 77 Ga. App. 448, 450 (49 SE2d 128).” Williams v. Claussen-Lawrence Constr. Co., 120 Ga. App. 190, 191 (169 SE2d 692).

In the case sub judice, the lease agreement provides a lump sum monthly rental rate of $2,250 for all laboratory “systems” provided. The contract does not segregate the equipment, nor does it assign a monthly rental value for each system. Moreover, the lease designates a singular sale price of $52,500 for the laboratory equipment, i.e., “one each Roche Cobas Bio, Coulter S7-120, MLA 600, and NOVA IV.” These clear and unambiguous terms reveal that the lease contract is entire and not severable. Consequently, the trial court erred in finding that “the terms of the rental contract evidence . . . that this was a severable contract. ...” However, this error is harmless as there was evidence to support the trial court’s finding that the lease agreement was “legally modified.”

(b) Mutual modification of an indivisible contract may compensate for failed consideration. Further, “[a]n oral modification of a preexisting contract need not be expressed in words, in writing or signed, but the parties must manifest their intent to modify the original contract. Ryder Truck Lines v. Scott, 129 Ga. App. 871, 873-874 (4) (201 SE2d 672) (1973).” Dan Gurney Indus. v. Southeastern Wheels, 168 Ga. App. 504, 505 (1) (308 SE2d 637).

In the case sub judice, the owner of the defendant corporation, Alan Ott, testified that he “discussed the malfunction or the failure of the M.L.A. [600 with the president of the plaintiff corporation, Kenneth Marshall Shumard,] and . . . agreed to return the M.L.A. and drop that part of the contract.” Ott further testified that he and Shumard agreed “to reduce the payments on the lease from $2,250.00 to $2,000.00 a month because of the M.L.A. [malfunction].” This evidence supports the trial court’s finding that the parties “legally modified [the rental agreement] to exclude the MLA 600 and [reduce] the monthly rental ... to $2000.00.” Consequently, these enumerations present no basis for reversal. See Dan Gurney Indus. v. Southeastern Wheels, 168 Ga. App. 504, 505 (1), supra.

2. In its third and fourth enumerations, defendant challenges the trial court’s finding that “the Coulter S7-120 . . . and Roche Cobas Bio instruments functioned in compliance with the rental contract obligations.”

“ ‘This court has held that the “any evidence” rule applies to a judge sitting without a jury, and his judgment will not be disturbed if there is any evidence in the record to sustain it.’ McDaniel Printing Co. v. Ben Meadows Co., 144 Ga. App. 419, 420 (241 SE2d 58) (1977).” McGhee v. Starr, 154 Ga. App. 450 (268 SE2d 690). In the case sub judice, there is evidence that plaintiff accepted delivery of the Coulter S7-120 and Roche Cobas Bio instruments on October 26, 1988. This evidence and evidence that defendant possessed the Coulter S7-120 and Roche Cobas Bio instruments for more than 30 days after delivery without complaint is sufficient to sustain the trial court’s finding that “the Coulter S7-120 . . . and Roche Cobas Bio instruments functioned in compliance with the rental contract obligations.” These enumerations are without merit.

Decided November 19, 1991.

Fred L. Cavalli, for appellant.

Nadler, Beskin & Scott, Gary M. Nadler, for appellee.

3. Finally, defendant contends the trial court erred in failing to enter judgment on its counterclaim for return of the $10,000 down payment.

“Under Code Ann. § 20-701 (now OCGA § 13-2-1), the construction of a contract is a question of law for the court. Where the contract is unambiguous, it is the duty of the court to construe it, and in so doing, the court must put a fair and reasonable construction thereon. Whitney v. Hagan, 65 Ga. App. 849 (16 SE2d 779) (1941); Holcomb v. Word, 239 Ga. 847 (238 SE2d 915) (1977).” Smiths’ Properties v. RTM Enterprises, 160 Ga. App. 102, 103 (2) (286 SE2d 334).

In the case sub judice, the lease agreement provides for a down payment of $10,000 and that the “[r]ental agreement will be cancelled and all monies returned to Customer if successful leasing arrangements are finalized and Lab-Quip receives payment in full from leasing organization or Customer ($52,500).” These provisions authorize the trial court’s finding that return of the $10,000 down payment was an inducement (consideration) for defendant to exercise an option to continue renting the equipment after the six-month mandatory lease period. Consequently, since there was evidence that defendant failed to exercise the option as prescribed by the lease agreement, there is no basis for return of the $10,000 down payment to defendant. The trial court did not err in failing to award damages under defendant’s counterclaim.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A1891, A91A1892.
    HAMILTON v. DEUTSCHER et al. (two cases).
    (412 SE2d 875)
   McMurray, Presiding Judge.

The father appeals directly in these child custody cases from an order declaring the father and mother unfit and placing the child in the custody of the maternal grandparents and from the denial of his motions for new trial. He did not seek and we did not grant a discretionary appeal. Held:

“ ‘OCGA § 5-6-35 (a) (2) and (d) (Code Ann § 6-701.1) provides that appeals from judgments awarding or refusing to change child custody shall be by application in the nature of a petition to the appropriate appellate court filed with the clerk of that court within 30 days of the entry of the order. This court has held that appeals from orders dealing with child custody which are not filed pursuant to OCGA § 5-6-35 (Code Ann. § 6-701.1) must be dismissed for lack of jurisdiction. (Cit.)’ Jones v. Warrenfells, 166 Ga. App. 519 (305 SE2d 147) (1983).” Dudai v. Spisak, 170 Ga. App. 744 (318 SE2d 501). It follows that these direct appeals in these child custody cases must be dismissed.

Decided November 19, 1991.

Laurens C. Lee, for appellant.

O’Neal & Long, Michael J. Long, Bond & Zimmerman, Charles V. Bond, Jr., Robert E. Bergman, for appellees.

Appeals dismissed.

Sognier, C. J., and Andrews, J., concur.


author: McMurray, Presiding Judge. Andrews, Judge,

text:
    A91A1907.
    PETER v. THE STATE.
    (412 SE2d 628)
   McMurray, Presiding Judge.

Defendant Peter was charged by indictment with the offenses of murder, felony murder, and aggravated assault. Following his conviction for the offenses of involuntary manslaughter and battery, defendant appeals. The sole enumeration of error complains of alleged prosecutorial misconduct in failing to present substantive evidence of defendant’s innocence to the grand jury and by subornation of perjury by a grand jury witness. Held:

1. Defendant’s motion to transfer his appeal to the Supreme Court of Georgia is denied. Contrary to defendant’s assertion, the case sub judice does not present any question of construction of the Constitutions of the United States or the State of Georgia, but involves only the applicability of plain and unambiguous constitutional provisions. Under these circumstances, jurisdiction is in this Court and not in the Supreme Court of Georgia. Marchman v. State, 232 Ga. 48 (205 SE2d 266); Hilliard v. State, 209 Ga. 497 (2) (74 SE2d 65).

2. The victim and defendant worked together at a car wash. The evidence at trial was in dispute as to the sequence of events which preceded defendant’s striking a fatal blow to the victim with a broom or mop handle. The sole enumeration of error is concerned with the denial of defendant’s motion to dismiss the indictment. Defendant’s motion to dismiss the indictment was predicated on a contention that the prosecution failed to inform the jury of exculpatory evidence. On appeal, defendant seeks to extend his position somewhat by arguing that the evidence presented in relation to this motion shows that the prosecution presented perjured testimony to the grand jury.

At a preliminary hearing before a magistrate, Detective Wiley of the City of Gainesville Police Department testified that a witness of the killing told him that the victim stated to the defendant “[g]o ahead and hit me.” On the hearing of defendant’s motion to dismiss the indictment, the only evidence was given by the assistant district attorney who had presented the case to the grand jury. The assistant district attorney stated that information that “the exculpatory information about who hit who first, and what went on out there, was in fact presented,” including testimony that the victim had hit the defendant first. After the assistant district attorney made her statement in place, defense counsel was permitted to question her. The following exchange ensued: “[DEFENSE COUNSEL]: Did you tell them about the fact that, as you know, based on the testimony at the preliminary hearing, that [tbe victim] had been antagonizing [defendant] over several days, prior to this incident? [ASSISTANT DISTRICT ATTORNEY]: I was not a witness before the grand jury. I didn’t tell them anything. [DEFENSE COUNSEL]: Through any witness, did you provide that information? [ASSISTANT DISTRICT ATTORNEY]: I asked Mr. Wiley if he had any information that, to use your language, out of your motion, that the victim was the aggressor. He responded, basically, that the — if you want to call what happened with the broom stick aggression, maybe. As to whether the victim challenged the defendant, I asked that question specifically to Mr. Wiley, and he said, not to his knowledge. COURT: These questions are not going to be a fishing expedition. They are going to be limited to specifically what is in the motion. [DEFENSE COUNSEL]: Then none of your witnesses told the grand jury that [the victim] had been pursuing [defendant], as you knew when you were in there, and that he had been calling him racial slurs and provoking him to violence.”

Defendant contends that there is a conflict between the testimony of Wiley at the preliminary hearing and the account of his testimony before the grand jury as recounted by the assistant district attorney. From this perceived discrepancy defendant extrapolates that Wiley’s testimony before the grand jury was perjury and that such perjury was suborned by the prosecutors. The hypothesis advanced by the defendant is simply not compelled by the evidence presented in the trial court. There is no indication that the term “challenge” as used by the assistant district attorney referred to the victim’s invitation to defendant to hit him which was related by Wiley at the preliminary hearing. Considering the context in which the term was spoken, it is likely that the “challenge” of which Wiley had no knowledge was a continuing pattern of antagonism by the victim toward defendant. In any event, the evidence in this regard does not conclusively support defendant and presents at most a question of fact for the trial court’s resolution. The trial court’s determination of the factual issue adversely to defendant is not clearly erroneous and therefore, will not be overturned by this Court. Nelms v. State, 255 Ga. 473, 474 (1) (340 SE2d 1); Chastain v. State, 196 Ga. App. 50, 51 (2), 52 (395 SE2d 570).

Decided November 19, 1991.

Watson & Watson, Herman A. Watson III, for appellant.

C. Andrew Fuller, District Attorney, Jessica K. Vaughn, Assistant District Attorney, for appellee.

Similarly, defendant has failed to present any evidence that the State withheld any exculpatory evidence from the grand jury. We do not reach any issues concerning the State’s responsibilities in the manner in which cases are presented to a grand jury. In the case sub judice, it is sufficient to note the failure of defendant to present an appropriate factual predicate for his contentions.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur specially.

Andrews, Judge,

concurring specially.

I would affirm on the sole ground that: “The rule in this state is: ‘(W)here ... it appears that a competent witness or witnesses were sworn and examined before the grand jury by whom the indictment was preferred, a plea in abatement on the ground that it was found on insufficient evidence, or illegal evidence, or no evidence, will not be sustained, because it comes under the rule that no inquiry into the sufficiency or legality of the evidence is indulged. (Felker v. State, 252 Ga. 351, 366 (2 a) (314 SE2d 621) (1984) (quoting Summers v. State, 63 Ga. App. 445 (3) (11 SE2d 409) (1940)).)’ ” (Emphasis omitted.) Isaacs v. State, 259 Ga. 717, 720 (386 SE2d 316) (1989).

I am authorized to state that Chief Judge Sognier joins in this special concurrence.


text:
    A91A2030, A91A2031.
    ROSS v. NINETY-TWO WEST, LTD.; and vice versa.
    (412 SE2d 876)
   McMurray, Presiding Judge.

Ninety-Two West, Ltd. (plaintiff) brought an action against Larry T. Ross, William Rogers and Bell, Cowart and Jackson Realty (defendants) for damages which allegedly arose after defendant Ross breached a real estate sales contract. More specifically, plaintiff alleged that Rogers was a salesman for Bell, Cowart and Jackson Realty; that Rogers procured a real estate sales contract wherein defendant Ross agreed to purchase 14 acres from plaintiff; that defendant Ross backed-out on the deal and that Rogers breached his duty of loyalty as a representative of plaintiff. Plaintiff alleged that Bell, Cowart and Jackson Realty is vicariously liable for its sales agent’s tortious acts. Defendants filed separate answers and denied the material allegations of the complaint. Bell, Cowart and Jackson Realty later filed a motion for summary judgment.

In June 1984 Rogers began working as a real estate sales agent, acting exclusively for Bell, Cowart and Jackson Realty. Rogers was furnished an office, a telephone and a secretary. Rogers attended regular sales meetings and he was provided business cards with the inscription, “Bell, Cowart and Jackson Realty.” Rogers was provided advertising services and was reimbursed for some business expenses. In exchange, Rogers was expected “to go out and obtain listings on behalf of Bell, Cowart [and Jackson Realty and] to show properties. . . .” Rogers was not paid a salary, but he “split [his] commission with the company . . . pursuant to [an] Independent Contract Agreement.”

In 1988, plaintiff contacted Rogers and retained Bell, Cowart and Jackson Realty to broker the sale of a 14-acre tract of commercial property. Rogers formulated a plan for marketing the property, dealing directly with plaintiff’s general partner, Robert E. Rhoads, Jr. It was decided that the property would be most attractive to experienced commercial developers.

In February of 1989, Rogers presented a contract to plaintiff wherein defendant Ross offered to purchase plaintiff’s property for commercial development. The contract offers $103,680 per acre for the land and provides, in pertinent part, as follows:

“2. EARNEST MONEY Purchaser shall pay to Bell, Cowart and Jackson Realty, Inc., ... an earnest money deposit of Five Thousand Dollars ($5,000.00) upon full execution of this Agreement . . .

“14. DEFAULT In the event the transaction ... is not closed because of Purchaser’s default, the Earnest Money shall be paid to Seller as full liquidated damages and as Seller’s sole and exclusive remedy for such failure . . .

“15. PURCHASER’S CONTINGENCIES Purchaser shall have sixty (60) days to secure an engineering report that will . . . allow Purchaser to use said property in Commercial Development, said report and [plat] to be conducted by licensed and approved government authorities. At time said report is submitted and accepted, Purchaser will place an additional amount of Twenty Thousand Dollars ($20,000.00) Earnest Money. If said Closing does not take place as described herein said Earnest Money will be disbursed to Seller.”

The sales contract also provides that “[t]he Closing shall be held on or before . . . (45) days after expiration of the [60 day] period

Plaintiff executed the contract on February 22, 1989, and defendant Ross deposited $5,000 with Bell, Cowart and Jackson Realty. Defendant Ross then acquired an engineering plan for commercial development of the property, but he did not submit the plan to local “government authorities” for approval.

“In late April, 1989, [Robert E. Rhoads, Jr.] inquired of Defendant Rogers as to whether or not the additional [$20,000] earnest money had been paid. . . . Defendant Rogers informed [Robert E. Rhoads, Jr.] that the additional earnest money had . . . been paid by the Purchaser to Bell, Cowart [and Jackson Realty] and that Bell, Cowart [and Jackson Realty] had placed the additional money in its trust account. Based on this representation[, Robert E. Rhoads, Jr.] agreed to allow the contract to remain in effect for a period of some months thereafter . . . After the closing date set forth in the Contract had passed, Defendant Rogers . . . informed [Robert E. Rhoads, Jr.] that Defendant Ross had never paid the additional earnest money to Bell, Cowart [and Jackson Realty].”

Defendant Ross posted a letter, dated July 3, 1989, to plaintiff and Bell, Cowart and Jackson Realty, informing them that he was not going through with the deal and demanding return of his $5,000 deposit. In a letter dated July 14, 1989, plaintiff informed Bell, Cowart and Jackson Realty that defendant Ross had breached the sales contract and that the terms of the sales agreement required disbursement of the earnest money to plaintiff. Bell, Cowart and Jackson Realty did not disburse the “earnest money” to either plaintiff or defendant Ross.

The trial court entered the following order: “Defendant Bell, Cowart & Jackson Realty’s Motion for Summary Judgment having come regularly for hearing before the Court, and all parties having been given notice of said Motion, and, after reviewing the briefs of counsel for Plaintiff and Defendant Bell, Cowart & Jackson Realty, and after hearing argument of counsel of said parties, the other parties having failed to submit briefs or appear for argument, it is hereby ORDERED AND ADJUDGED as follows:

“A) That portion of [Bell, Cowart and Jackson Realty’s] Motion for Summary Judgment addressing the $5,000.00 earnest money held by Defendant Bell, Cowart and Jackson, Inc. is hereby DENIED, and

“B) Summary judgment is hereby GRANTED to Plaintiff and against all the Defendants in this action in the principal amount of $5,000.00, plus pre-judgment interest thereon in the amount of $564.08, for a total judgment of $5,564.08.

“C) That portion of Defendant Bell, Cowart & Jackson Realty’s Motion for Summary Judgment which addresses all the remaining claims of Plaintiff against Bell, Cowart & Jackson Realty is HEREBY GRANTED.”

Defendant Ross appeals in Case No. A91A2030 and plaintiff appeals in Case No. A91A2031. Held:

Case No. A91A2030

1. Defendant Ross contends the trial court erred in granting summary judgment to plaintiff and awarding plaintiff $5,564.08, arguing that approval of an engineering report for commercial development of the property is an unsatisfied condition precedent which defeats the sales contract. This contention is without merit.

“Under Code Ann. § 20-701 [now OCGA § 13-2-1], the construction of a contract is a question of law for the court. Where the contract is unambiguous, it is the duty of the court to construe it, and in so doing, the court must put a fair and reasonable construction thereon. Whitney v. Hagan, 65 Ga. App. 849 (16 SE2d 779) (1941); Holcomb v. Word, 239 Ga. 847 (238 SE2d 915) (1977).” Smiths’ Properties v. RTM Enterprises, 160 Ga. App. 102, 103 (2) (286 SE2d 334).

In the case sub judice, paragraph 15 of the sales contract provides defendant Ross with “sixty (60) days to secure an engineering report that will. . . allow Purchaser to use said property in Commercial Development. . . .” This paragraph also provides, “At time said report is submitted and accepted, Purchaser will place an additional amount of Twenty Thousand Dollars ($20,000.00) Earnest Money.” This unambiguous language does not impose a condition precedent to enforcement of the sales agreement. It requires defendant to exercise an option 60 days after execution of the contract, i.e., either back out of the deal and forfeit $5,000 or submit plans acceptable to local government authorities, pay $20,000 to the escrow agent and go forward with the deal. Consequently, since undisputed evidence shows that defendant Ross decided not to go through with the deal, summary adjudication against him for liquidated damages in the amount of $5,000 is authorized.

2. Defendant Ross contends the trial court had no authority to enter summary judgment against him since he was not a party to Bell, Cowart and Jackson’s motion for summary judgment.

“It is well-settled that summary judgment can be granted to a non-moving party provided the grant is proper in all other respects. Golston v. Garigan, 245 Ga. 450 (1) (265 SE2d 590). As a general rule, ‘(i)f the record demands such a judgment, it would be proper.’ DeMudd v. Atlanta &c. Taxi-Cab Group, 172 Ga. App. 626, 627 (323 SE2d 910). However, ‘ “(c)are should ... be taken by the (trial) court to determine that the party against whom summary judgment is rendered has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried, and that the party for whom summary judgment is rendered is entitled thereto as a matter of law.” ’ Cruce v. Randall, 152 Ga. App. 183 (1) (262 SE2d 488); aff’d 245 Ga. 669 (266 SE2d 486); accord Rasmussen v. Nodvin, 174 Ga. App. 203, 204 (1) (329 SE2d 541). ‘ “ ‘The crucial point is to insure that the party against whom summary judgment is sought has had a full and final opportunity to meet and attempt to controvert the assertions against him.’ ” ’ Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 48 (3) (332 SE2d 304).” Howell Mill/Collier Assoc, v. Penny packer’s, Inc., 194 Ga. App. 169 (1), 170 (390 SE2d 257).

In the case sub judice, there appears to be a dispute over whether defendant Ross was given proper notice of Bell, Cowart and Jackson Realty’s motion for summary judgment. Plaintiff contends that defendant Ross was served with the motion for summary judgment more than 30 days before the hearing and that he “received the briefs of all parties . . . , received notice of the hearing . . . and ignored them all.” Defendant Ross infers that he was not given 30 days notice of the motion for summary judgment and that he was not aware of the issues raised therein.

The record does not show that defendant Ross was served with the motion for summary judgment, supporting brief or plaintiff’s response. However, the trial court found that all parties were given notice of Bell, Cowart and Jackson Realty’s motion for summary judgment and that some of the parties had “failed to submit briefs or appear for argument.”

“ ‘An appeal with enumeration of error dependent upon consideration of evidence heard by the trial court will, absent a transcript, result in an affirmance. (Cit.)’ Uren v. State, 174 Ga. App. 804, 805 (331 SE2d 642) (1985). See also Peek v. Duffy, 172 Ga. App. 834 (1) (324 SE2d 795) (1984); Hammond v. State, 168 Ga. App. 508 (308 SE2d 701) (1983).” In re D. P. T., 176 Ga. App. 409, 410 (1) (336 SE2d 330). In the case sub judice, defendant specifically noted in his notice of appeal that “[a] transcript of evidence and proceedings will not be filed for inclusion in the record on appeal.” Under these circumstances, we cannot say the trial court erred in finding that defendant Ross was properly notified of the motion for summary judgment. The hearing transcript may well support a finding that defendant Ross was properly notified of the motion for summary judgment and supporting brief. Consequently, since the brief filed in support of Bell, Cowart and Jackson Realty’s motion for summary judgment reveals dispute over the issue resolved against defendant Ross on summary judgment, i.e., that the sales contract required payment of $5,000 to plaintiff as a result of defendant Ross’s breach of contract, the trial court did not err in granting summary judgment to plaintiff.

Case No. A91A2031

3. Plaintiff contends the trial court erred in finding that no genuine issues of material fact remain as to whether Bell, Cowart and Jackson Realty is responsible for the alleged tortious acts of its sales agent, William Rogers.

“ ‘The employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer. (Cits.) In determining whether the relationship of parties under a contract for performance of labor is that of employer and servant or that of employer and independent contractor, the chief test lies in whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work as distinguished from the right merely to require certain definite results in conformity to the contract. (Cit.) Where the contract of employment clearly denominates the other party as an independent contractor, that relationship is presumed to be true unless the evidence shows that the employer assumed such control. (Cits.) (Cit.) On the other hand, where the contract specifies that the employee’s status shall be that of independent contractor but at the same time provides that he shall be subject to any rules or policies of the employer which may be adopted in the future, no such presumption arises. (Cits.) McGuire v. Ford Motor Credit Co., 162 Ga. App. 312, 313 (290 SE2d 487) (1982).’ (Punctuation omitted.) Allison v. Nat. Assn. for Self-Employed, 187 Ga. App. 592, 593 (370 SE2d 841) (1988).” Bartlett v. Northside Realty Assoc., 191 Ga. App. 10 (380 SE2d 744).

Decided November 19, 1991.

Dailey & Groover, L. Lee Dailey, Lewis M. Groover, Jr., Wilson, Strickland & Benson, Frank B. Strickland, Samuel T. Brannan, Mary M. Brockington, William Rogers, for appellant.

In the case sub judice, there is no dispute that Rogers entered into an employment contract with Bell, Cowart and Jackson Realty which denominates Rogers as an independent contractor and gives Rogers great latitude in the manner in which he performs his work, i.e., the agreement provides that Rogers “shall set his . . . own hours and time of work[; that Rogers] shall furnish his . . . own transportation [and that Rogers] shall not be required to attend sales meetings or participate in training programs.” Nonetheless, plaintiff contends that genuine issues of material fact remain on the issue of respondeat superior, arguing that evidence exists which shows that Bell, Cowart and Jackson Realty exercised extensive control over Rogers’ business activities. We do not agree.

It is undisputed that Rogers was given an office, a telephone and a secretary. Further, there is evidence that Rogers was expected to attended regular sales meetings and he was provided business cards with the inscription, Bell, Cowart and Jackson Realty. There is also evidence that Rogers was provided with advertising services and that he was reimbursed for some business expenses. However, there is no evidence that Rogers had a supervisor who controlled the time, manner, and method of executing work. On the contrary, the undisputed evidence shows that Rogers formulated his own plan for marketing plaintiff’s property and that Rogers was the only Bell, Cowart and Jackson Realty representative marketing plaintiff’s 14-acre tract. This evidence and evidence that Rogers was not paid a salary, but “split [his] commission with the company . . . pursuant to [an] Independent Contract Agreement^]” pierces any allegation that an employer-employee relationship exists which subjects Bell, Cowart and Jackson Realty to liability for the alleged tortious acts of Rogers. Consequently, the trial court did not err in granting summary judgment to Bell, Cowart and Jackson Realty on the issue of respondeat superior. Bartlett v. Northside Realty Assoc., 191 Ga. App. 10, supra.

Judgments affirmed.

Sognier, C. J., and Andrews, J., concur.

Campbell & Dreger, Richard J. Dreger, for appellee.

       The brief filed on behalf of defendant Ross does not specifically contend that defendant Ross did not receive proper notice of the motion for summary judgment. It does contend, in pertinent part, as follows: “O.C.G.A. 9-11-56 (c) grants thirty days to respond to a motion for summary judgment. A party to the motion, moving or non-moving, would presumably be prepared to defend or prosecute the issue of liability. A party to the litigation whose liability is not to be decided by such a motion finds himself blind-sided by the entry of judgment against him by the trial court. Such a party has no opportunity to defend against an attack of which he is unaware, no chance to present evidence that material issues of fact exist and that the party for whom summary judgment is rendered is not entitled thereto as a matter of law. ‘When such motion is made, the resisting party is entitled ... to have notice at least 30 days before the time fixed for the hearing and he has the right to serve opposing affidavits up to the time fixed for the hearing . . . Neither of these procedural safeguards was allowed ... in this case . . .’ , Thompson v. Hurt, 159 Ga. App. 656, 658 (284 SE2d 671) (1981).”


author: ■ Sognier, Chief Judge.

text:
    A91A1343.
    SIMMONS et al. v. KRALL et al.
    (412 SE2d 559)
   ■ Sognier, Chief Judge.

The City of Atlanta condemned certain property in Fulton County, and when the condemnees appealed the special master’s valuation, a jury determined that the value of the property was $3.5 million, which was deposited in the registry of the trial court. Because the property was the subject of an executory contract of sale entered into before the condemnation, the trial court permitted the sellers, Mary Ann Thomas Simmons, Joseph Simmons, and Martha Miller, to withdraw from the registry $1.3 million, the amount of their contract sale price, and proportionate interest. The trial court then ordered that a second jury trial be held to determine the allocation of the remainder of the proceeds, $2.2 million and proportionate interest, among the sellers, the purchaser under that contract, John Krall, and the purchaser under a second executory contract of sale from Krall to Lacy Curry. The second jury trial resulted in an award in favor of Krall and Curry, and the Simmonses and Miller bring this appeal from the trial court’s denial of their motion for judgment n.o.v. or, alternatively, for a new trial.'

The evidence adduced at trial showed that the property in question had been used by the city as a landfill pursuant to a lease which expired on July 31, 1988. Paragraph six of that lease provided that “[w]hen the City of Atlanta turns said property back over to the owners, it will prepare the land used for landfill purposes and sow grass or other appropriate cover on the property so as to prevent unnecessary erosion.” Appellants, who had acquired the property by inheritance during the term of the lease, did not wish to hold the property, and prior to the expiration of the lease they began efforts to sell it through a real estate broker. On August 10, 1988 appellants and Krall entered into a contract for the sale of the property (the “Krall contract”) for $1.3 million, “[a]ll cash at time of closing.” Krall paid $1,000 earnest money, which was to be applied to the purchase price at closing. The contract provided, in special stipulation four, that “[t]his sale shall be closed on or before 30 days after the City of Atlanta has turned possession back to Seller in accordance with paragraph 6 of the [lease] or by_, whichever comes first.” The blank was not filled in.

On September 29, 1988, although he had not yet closed on his contract with appellants, Krall entered into a contract agreeing to sell the property in issue to Lacy Curry (the “Curry contract”) for $1.76 million, “[all] cash at time of closing,” with a $100 earnest money payment to be applied to the purchase price at closing. The special stipulations in the Curry contract were identical to those in the Krall contract except that the blank in special stipulation four was filled in with the term “15th day of December.” Neither sale ever closed. On October 5, 1988, the city instituted condemnation proceedings against the property.

The evidence was conflicting on the issue of whether the city had complied with its obligation under paragraph six of the lease to restore the property. Appellants presented the testimony of city employees that the work had been done, while appellees adduced evidence to controvert this testimony.

1. Appellants contend the trial court erred by denying their motion for judgment n.o.v. because appellees were not entitled to the proceeds of condemnation. The jury would have been authorized to conclude either that the city had complied with paragraph six of the lease, which was a condition precedent to Krall’s duty to close, see generally Daniel v. Dalton News Co., 48 Ga. App. 772, 773 (1) (b) (173 SE 727) (1934), or that it had not. If the city had complied with paragraph six of its lease by July 31, 1988, Krall’s contract would have expired by its own terms 30 days thereafter unless he had closed the contract by August 30, 1988, which he admitted he did not do, and the contract would have ceased to exist. Under these circumstances, appellants would have been entitled to recover the proceeds of the condemnation. If, on the other hand, the city had not yet complied with paragraph six of the lease at the time of the condemnation, the question arises whether the existence of the unfulfilled condition precedent to Krall’s duty to close the contract entitled appellants to the proceeds of the condemnation.

Under the doctrine of equitable conversion, generally the risk of loss and the consequent entitlement to benefit is on the buyer. Bleckley v. Langston, 112 Ga. App. 63, 64-65 (143 SE2d 671) (1965). “ ‘The rule is based on the principle that the contract gives to the purchaser in fact and substance the real ownership of the land, the vendor retaining in his own right possession, rents and profits for the brief interval before performance, and the legal title as security for the purchase money.’ [Cit.] As a result of the rule, the vendee is entitled to the proceeds arising from condemnation proceedings. [Cit.]” Id. Under the equitable conversion theory this is reasonable, as we assume that any contract for the sale of land is made in contemplation that the taking of land in condemnation proceedings may be possible and, if the vendee is the equitable owner, he is entitled to just compensation. Despite frequent criticism, see, e.g., id. at 65, the doctrine of equitable conversion remains the majority rule throughout the country, and Georgia adheres to that rule.

Appellants argue that the rule is unsound and should be changed. We need not address this argument, however, because the doctrine has been applied in Georgia subject to certain exceptions, and we find that the circumstances sub judice fall under such an exception. The Supreme Court has held that the rule is applicable only “[i]f the contract has been so far completed that the vendee is to be treated as the owner of the premises,” Phinizy v. Guernsey, 111 Ga. 346, 349 (1) (36 SE 796) (1900), and “is not applicable unless there is an ability as well as a willingness on the part of the vendor to convey, the purchaser not being considered as the owner from the date of the contract unless the vendor is prepared to convey a clear title and is not in default. [Cits.]” Id. at 348 (1). Other Georgia cases have declined to apply the rule in the absence of a “perfect equity.” See, e.g., Cloud v. Jacksonville Nat. Bank, 239 Ga. 353, 354-355 (236 SE2d 587) (1977).

Where a condition precedent has not been fulfilled, the purchaser is not required to go forward with the sale, see OCGA § 13-3-4, and thus the contract is not “so far completed that the vendee is to be treated as the owner” within the meaning of Phinizy, supra. See Moore v. Buiso, 235 Ga. 730, 731-732 (1) (221 SE2d 414) (1975) (reaffirming principle in Phinizy, but finding evidence that condition precedent in contract had been met). An unfulfilled condition precedent may also affect the seller’s ability to convey the title as called for by the contract. See Phillips v. Bacon, 245 Ga. 814, 816 (267 SE2d 249) (1980). These cases demonstrate that the presence of an unfulfilled condition precedent in the sales contract provides an exception to the application of the doctrine of equitable conversion so as to prevent the risk of loss —as well as the chance of benefit — from falling on the vendee. See generally Annot., 85 ALR4th 233, § 4.

Appellees had no duty to go forward with the contract because of the unfulfilled condition precedent, and the contract was not “so far completed that [appellees are] to be treated as the owner.” Phinizy, supra. Therefore, even if the jury believed that the city had not complied with its obligations under paragraph six of its lease, appellants were nevertheless entitled to the condemnation proceeds. Accordingly, as there was no evidence from which the jury would have been authorized to conclude that appellees were entitled to the proceeds of condemnation, the trial court erred by failing to grant appellants’ motion for judgment n.o.v. See generally Turner Outdoor Advertising, Ltd. v. Werco, Inc., 194 Ga. App. 14, 15 (1) (389 SE2d 778) (1989).

Decided October 31, 1991

Reconsideration denied November 20, 1991

Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., John W. Harbin, for appellants.

King, Taylor & Stovall, James F. Stovall III, for Krall.

Paul, Hastings, Janofsky & Walker, John G. Parker, Kathy R. Bess, for Curry.

Elizabeth F. Allen, for City of Atlanta.

2. Our holding in Division 1 renders it unnecessary that we consider appellants’ remaining enumerations of error.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.

On Motion for Reconsideration.

In their motion for reconsideration, appellees contend that the grounds upon which we reversed the judgment below and found that the trial court should have entered judgment for appellants n.o.v. were not included in appellants’ motion for a directed verdict, and thus we have overlooked the well-established principle that an appellate court may not consider an appeal from the denial of a motion for j.n.o.v. unless the grounds therefor were previously raised in a motion for directed verdict. Famiglietti v. Brevard Medical Investors, Ltd., 197 Ga. App. 164, 166-167 (2) (397 SE2d 720) (1990).

We have carefully considered this contention and reviewed the motion for directed verdict, and find that the grounds for reversal were clearly encompassed in that motion, even as paraphrased by appellees in their motion for reconsideration.

Motion for reconsideration denied.

       Professor Samuel Williston, in his treatise on contracts, has stated that the rule is an anachronism, deriving from its origin in the British courts of Chancery at the time when the promises in all bilateral contracts were held to be independent of each other. Because a vendor could not refuse to convey land as contracted despite the purchaser’s failure to pay, he thus came much nearer to justifying his description as a trustee for the vendee. 7 Williston, Law of Contracts, § 933 (3rd. ed. 1963).


author: Sognier, Chief Judge.

text:
    A91A0809.
    SWANSON v. THE STATE.
    (412 SE2d 630)
   Sognier, Chief Judge.

Willie Swanson was convicted of possession of cocaine, and he appeals.

Appellant contends in his sole enumeration of error that the trial court erred by denying his motion to suppress. The evidence adduced at the hearing on the motion and at trial established that Atlanta Police Officer J. Martin, Jr. received a radio dispatch that an anonymous caller had reported that a dark-skinned black man wearing a “white Kangol hat,” a sweater, and jeans was selling drugs at 987 Sells Avenue. Martin proceeded to that address, which he testified was in a known high drug trafficking area. Martin stated that appellant was standing at that address and matched the given description, including the wearing of a white hat similar to a golf cap with the name “Kangol” on it. Martin testified that he saw two or three other men near appellant, but did not see any drug transactions. Martin stated that he left his marked patrol car, approached appellant to interview him, and conducted a pat down for weapons before interviewing him. Martin testified that after patting down appellant’s body, he took hold of appellant’s hat in a “crunching manner” in order to verify that no weapons were inside the hat. Martin testified that in his experience people have placed weapons, such as razor blades and small knives, inside hats, although he acknowledged he had never found weapons inside the particular type of hat appellant was wearing. While Martin was checking the hat, a few bags containing what was later determined to be crack cocaine fell out of the hat. Appellant was placed under arrest, and a total of seven bags containing crack cocaine was ultimately retrieved from the hat.

Appellant argues that the anonymous tip Officer Martin received was not sufficient to “warrant a man of reasonable caution in the belief that a stop was appropriate.” (Punctuation and citation omitted.) Alabama v. White,_U. S._(110 SC 2412, 110 LE2d 301) (1990). See also Johnson v. State, 197 Ga. App. 538, 539 (398 SE2d 826) (1990). In White, an anonymous telephone caller alerted police that White would leave a certain apartment at a specific time in a described automobile and would drive to a specific destination while carrying a brown attache case containing cocaine. The officers who investigated the tip observed White leave the designated apartment building (although they could not determine from which apartment) at apparently the specified time, enter the described car, and drive the most direct route to the destination named by the anonymous telephone caller. After White was stopped, a search uncovered a brown attache case containing cocaine in the car. “The Supreme Court in White, supra, made clear that for an anonymous telephone tip to provide a basis for articulable suspicion for police to make an investigatory stop (see Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968)), the tip must provide some basis for predicting the future behavior of the subject of suspicion. In White, the anonymous telephone informant not only gave an accurate and detailed description of the suspect and her vehicle, the information also accurately predicted the suspect’s subsequent activity and behavior.” (Emphasis supplied.) Johnson, supra at 539. The Supreme Court in White established that detailed descriptions relating to easily obtained facts and conditions existing at the time of the tip are not sufficient to justify the stop. Rather, “[wjhat was important was the [anonymous telephone informant’s] ability to predict [White’s] future behavior, because it demonstrated inside information .... The general public would have had no way of knowing that [White] would shortly leave the building, get in the described car, and drive the most direct route to [the stated destination]. Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities. [Cit.] When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.” White, supra at 110 LE2d 310.

In the case sub judice, the anonymous tip consisted solely of information that a described person was at a precise location at the time of the call. “The fact that [Officer Martin] found a [person] precisely matching the caller’s description in front of the [stated address] is an example of [easily obtained facts and conditions existing at the time of the tip]. Anyone could have ‘predicted’ that fact because it was a condition presumably existing at the time of the call.” White, supra at 110 LE2d 310. Unlike the situation in White or State v. Rhule, 197 Ga. App. 47 (397 SE2d 556) (1990) (anonymous tip at 4:00 p.m. informed police that defendant would be conducting drug transaction at stated location at 8:00 p.m.), here the anonymous tip contained no detailed information demonstrating the caller’s ability to predict appellant’s future behavior, and thus contained no information from which the police could have reason to believe the tipster was not only honest but also well informed enough to justify the stop. We do not agree with the State that Martin’s knowledge that the address was in a high drug trafficking area in any manner corroborated the anonymous tipster’s information so as to impart a degree of reliability to the other allegations made by the caller.

“Although the tip [in the case sub judice] certainly warranted police investigation, further observation and corroboration was required before a forcible stop was authorized. In White, the Supreme Court stated that the facts of that case made it a close issue. [Cit.] The facts in the present case clearly put it beyond the pale. We hold that the initial stop of [appellant] was not valid because it was not based upon reasonable suspicion.” Johnson, supra at 539-540. Thus, we need not address appellant’s argument that the officer’s pat down was unauthorized, since we hold that the trial court erred by not granting the motion to suppress. Id.

Decided November 20; 1991.

Leigh B. Finlayson, Luana K. Walsh, Kenneth D. Kondritzer, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Alfred D. Dixon, Richard E. Hicks, Assistant District Attorneys, for appellee.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A91A0914.
    LEWIS et al. v. ROGERS.
    (412 SE2d 632)
   Andrews, Judge.

Lewis and Cloud appeal the damages awarded by the jury after the trial court’s grant of summary judgment on liability.

Rogers, an accountant, was initially contacted by Starke about moving from Tennessee to Savannah to become chief financial officer for Savannah Enterprises, Inc. He was a salaried employee of that company, which was a holding company for several other companies, the principals of which were Starke, Dantis, Lewis and Cloud. The companies were set up to develop golf courses, including providing the sprinkling systems and turf.

Young, who was not an investor or officer, was hired to procure investment funds for the ventures. Starke was traveling to meet with Young and asked Rogers to allow him to use Rogers’ personal American Express card to charge the costs. Rogers agreed and thereafter Starke loaned the card to Young for his use in travelling. Large bills were run up on the card and Rogers became concerned, asking the four investors for a written promise that the bills would be paid. Starke agreed to that and also agreed that a $1 per $1 commission would be paid for use of the card. The document, prepared by Rogers, was signed by Lewis, Cloud, Starke and Dantis on November 7, 1987 and provided that “[t]he officers of Golf Courses International Inc. (Richard P. Starke, Gary W. Dantis, . . . J. Edwin Lewis and Edwin Cloud) personally guarantee all charges incurred on [Rogers’] American Express Card incurred by Michael Young,” as well as for the commission.

The companies did not succeed and the card was not kept current, causing American Express to place the account for collection and register a bad credit report on Rogers. Rogers filed for bankruptcy in November 1989, with American Express filing a claim for $18,828.05.

Rogers sued the four men for the amount owing on the card, attorney fees under OCGA § 13-6-11, the commission, and consequential damages from the adverse credit rating.

Rogers moved for summary judgment on “all matters contained in Plaintiff’s complaint,” which was granted on November 30, 1988.

On January 18, 1989, Lewis and Cloud’s attorney served Rogers’ attorney with a demand that they proceed to collect the debt from Golf Courses International, Inc., contending that company was the principal for whose benefit the charge card was used and that the document was a guaranty under OCGA § 10-7-24.

On February 1, 1989, Lewis and Cloud filed their motion for reconsideration of the summary judgment, contending that the contract was usurious; liability in any event was joint and not several; and attorney fees were not appropriate. On March 1, 1989, the court amended its order holding that liability was only joint and the 100 percent commission was usurious resulting in forfeiture of the interest charges. It also reserved the issue of attorney fees until the damages hearing.

In June 1990, the jury awarded and judgment was entered for $18,828.05 principal, with prejudgment interest of $1,343.52 plus attorney fees of $24,045.

1. Defendants contend that the court’s failure to direct a verdict in their favor on the issue of attorney fees was error. The basis for Rogers’ claim for attorney fees pursuant to OCGA § 13-6-11 was defendants’ stubborn refusal to “make payments according to their contractual agreement,” i.e., the refusal to pay American Express within 30 days as the bills accrued.

“The question of attorney fees under OCGA § 13-6-11 is a question for the jury. [Cit.] The standard of review of an award of attorney fees under OCGA § 13-6-11 is whether there is any evidence to support the award. [Cit.]” Spring Lake Property Owners Assn. v. Peacock, 260 Ga. 80, 81 (390 SE2d 31) (1990). Here, there was sufficient evidence of the refusal of the defendants to pay the outstanding balance of the credit card, even though they admitted that at least portions of the accrued charges were attributable to the business, to allow the case to go to the jury and to support the award. Hirsh v. Goodlett, 196 Ga. App. 127, 128 (2) (395 SE2d 626) (1990).

2. Defendants contend error in the denial of their motion for directed verdict on the issue of whether the judgment against Dantis extinguished any further claim against the joint obligors.

The motion for reconsideration of the grant of summary judgment on liability raised the issue of joint as opposed to joint and several liability by contending that the document was only a joint obligation under the authority of Bank of LaFayette v. Giles, 208 Ga. 674, 681 (5) (69 SE2d 78) (1952). That motion was granted by the court and the initial judgment amended to reflect that the liability was joint and not joint and several. At trial, the only specific motion for directed verdict made by defendants related to the attorney fee issue. Additionally, defendants asked for a directed verdict “on several issues remaining in the case. The same as we had before on the motions for summary judgment.” The motion for summary judgment filed by defendants on the extent of liability was granted, however, leaving nothing pending on this issue for purposes of the directed verdict. Therefore, the second enumeration presents nothing for our review.

3. The third enumeration contends that the court erred in granting Rogers’ motion for summary judgment “and failing to reconsider the issue of liability at the request of Appellants. The failure of appellee to file suit against the principal of the indebtedness within three months after request by Appellants bars the instant litigation.”

Since the court did reconsider the issue of liability on the grounds raised by defendants in their motion for reconsideration, the initial contention fails.

Defendants filed a motion for summary judgment on the issue of whether the failure of the creditor to sue the principal after notice under OCGA § 10-7-24 discharges the guarantor. The motion was based on Pine Timber Co. v. Anthony, 191 Ga. App. 375 (381 SE2d 591) (1989). To the extent this argument can be considered raised by the incorporating motion for directed verdict, OCGA § 9-11-50 (a); Fidelity &c. Ins. Co. of New York v. Massey, 162 Ga. App. 249, 250 (1) (291 SE2d 97) (1982), it is without merit.

Contracts creating the relationship of principal and guarantor and principal and surety are strictly construed. See Glasser v. Decatur Lumber &c., 95 Ga. App. 665, 671 (3) (99 SE2d 330) (1957). Here, the court concluded, and we agree, that the four defendants signed, not as guarantors, but as principals directly obligated under the document and, therefore, OCGA § 10-7-24 was not applicable. Pine Timber does not require a different result, standing only for the proposition that the statute is still in force and was not superseded by the UCC.

4. The remaining enumeration is without merit.

5. The motion for imposition of a ten percent penalty for frivolous appeal is denied.

Judgment affirmed.

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

Decided November 20, 1991.

Ratchford, Hall & Godloue, Joseph M. Hall, for appellants.

Jones, Bordeaux & Associates, Harold J. Cronk, for appellee.

       Starke and Dantis were held liable by the court on summary judgment. Dantis entered into a consent judgment with Rogers on October 31, 1988 (filed January 3, 1989) in which he agreed to pay $75,000. Starke failed to appear for trial and the judgment against him remains.

       That portion of the court’s ruling has not been appealed. But see Ghitter v. Edge, 118 Ga. App. 750, 752 (2) (165 SE2d 598) (1968).


author: Beasley, Judge.

text:
    A91A0929.
    LOYD v. THE STATE.
    (413 SE2d 222)
   Beasley, Judge.

Following the denial of his motion for new trial, Loyd appeals his conviction for incest, OCGA § 16-6-22 (a) (1), by having sexual intercourse with his natural daughter.

1. Appellant contends that the trial court erred in denying his motion to suppress evidence of similar transactions inasmuch as he was denied due process because the State’s notice failed to comply with Uniform Superior Court Rule 31.3. He contends (a) the notice insufficiently apprised him of the transactions (although he does not specify in what regard the notice was lacking), and (b) the court failed to hold a hearing and require the State to meet its burden of showing the admissibility of each separate transaction.

(a) The State served defendant with two separate notices. One notice cited continuing acts of molestation of the victim daughter from the age of ten until the age of 13. It named the girl, detailed the sexual acts and specified the out-of-state cities and years of occurrence. The second notice cited continuing acts of molestation of the victim’s older sister. It named the sister, and likewise detailed the sexual acts and the out-of-state cities and years in which they took place.

The transactions were continuing in nature over a period of years and the State’s notices described them with as much specificity as was possible. Both notices were in substantial compliance with USCR 31.3 (B). See Hall v. State, 181 Ga. App. 92 (1) (a) (351 SE2d 236) (1986).

(b) Approximately two weeks prior to trial, the court held a hearing on several of defendant’s motions, including the motion to suppress evidence of the similar transactions. The prosecuting attorney stated in her place the circumstances of the transactions. The defense offered no contradictory statement or proof.

“Rule 31.3 provides in part: ‘the judge shall hold a hearing . . . and may receive evidence on any issue of fact necessary to determine the request.’ . . .

“[T]he rule clearly grants the trial court discretion as to the reception of evidence. There is no per se right to an evidentiary hearing, nor any mandatory obligation to produce testimonial evidence. . . . [T]he pleadings and the [Sjtate’s attorney stating in [her] place what [she] expected to show at trial reveal facts upon which this court has found sufficient similarity in the transaction, especially as regards sexual crimes, to permit the admission of such evidence. [Cits.] By this means, the [S]tate set forth a prima facie case.” (Emphasis omitted.) Hall, supra at 93 (1c)-94. The jury heard testimony regarding the other acts and could make an independent determination regarding similarity. Compare Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991).

(c) Appellant further attempts to raise a substantive challenge to the similarity of the transactions. First, as we have noted, the State made a sufficient showing before the court and then the jury in this regard. Secondly, such claim may not be considered because “[enumerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration. [Cit.]” Newberry v. State, 184 Ga. App. 356, 357 (1) (361 SE2d 499) (1987).

2. Appellant contends that the court erred in denying his motion for a directed verdict for failure to prove venue in Chattooga County.

The prosecuted instance of sexual intercourse between father and daughter was alleged to have occurred at the paternal grandmother’s house in Berryton in Chattooga County. Although the victim daughter, who was a reluctant State’s witness, recanted her earlier story that the sexual intercourse had taken place at the grandmother’s house, and although the defendant completely denied the occurrence, there was testimony by at least three other witnesses who established that the incest occurred in Chattooga County rather than in Tennessee, where the family lived much of the time and where much of the sexual activity between defendant and his daughters took place. This testimony can be considered as probative of the venue issue because “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.” Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982).

Decided November 20, 1991.

Albert C. Palmour, Jr., for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Susan S. Camp, Melodie B. Swartzbaugh, Assistant District Attorneys, for appellee.

The victim’s sister testified that the victim had related to her that at “Granny Loyd’s” house, defendant had chased the victim and she finally gave in and let defendant do his will. A Department of Family & Children’s Services employee testified that the victim stated that in the summer of 1988 she and the defendant traveled to Chattooga County to attend a flea market and stayed at the grandmother’s house in Berryton, where she gave in to defendant’s advances to have sexual intercourse. The indictment alleged July 1, 1988. The chief investigator for the Chattooga County Sheriff’s Department testified that he specifically questioned the victim about what occurred in Chattooga County and the victim indicated that she had sexual intercourse with the defendant twice, once at her grandmother’s house in Berryton. Also in evidence was a written statement by the victim in which she related that most of the sexual intercourse occurred on trips taken out of town.

“ ‘When the evidence as to venue is conflicting, the State must prove venue as a jurisdictional fact beyond a reasonable doubt. (Cits.)’ [Cit.]” Lumpkin v. State, 182 Ga. App. 505 (1) (356 SE2d 238) (1987). The circumstantial as well as direct evidence was sufficient to permit the jury to find beyond a reasonable doubt that venue of the charged act of incest was in Chattooga County. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). A directed verdict on the basis of insufficient evidence of venue was not demanded.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


text:
    A91A1029.
    DAVIS v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY.
    (413 SE2d 224)
   Andrews, Judge.

Davis appeals the grant of summary judgment to John Hancock Mutual Life Insurance Company in his lawsuit for life insurance benefits.

On December 7, 1987, Davis’ wife was treated for facial acne by Dr. William Hayes, a pathologist. Because Hayes had not treated Mrs. Davis in 20 months and because he planned to prescribe a tetracycline treatment, he drew blood and determined that she was suffering from anemia, a condition he believed was caused by an iron deficiency. Hayes advised Mrs. Davis that she was anemic and that she needed to return for further tests to determine the cause of her condition.

On the evening of the same day, Mrs. Davis and her husband completed an application for “Military Spouse Life Insurance,” which policy was underwritten by John Hancock. The application stated that by their signatures, the applicants certified that: “MY DEPENDENT SPOUSE AND CHILDREN age 15 days to 21 years (age 23 if full-time student) ARE IN GOOD HEALTH (Dependent Spouse must also certify [sign] below) and not under medical care, nor ever had any major illness, injury or disease, i.e., heart disease, cancer, AIDS, etc., nor been confined to a hospital during the past five years......NOTE: If B is not true, describe health problem(s) below (attach sheets as necessary) so that medical evaluation forms can be sent to you, if required.” The Davises signed the application and did not attach any extra responses. The policy itself stated that for an applicant to be eligible for insurance it was required that as of the date of application: “The associate member is in good health and is not under medical care and furnishes evidence that satisfies the John Hancock that such person is insurable. But, if on the date the associate member applies, such associate member is not in good health, or is under medical care, or cannot furnish evidence satisfactory to the John Hancock that such person is insurable, the associate member shall not become eligible for insurance until the date the associate member (1) meets the requirements of subdivisions (a) through (d) above; and (2) is in good health, not under medical care, and can furnish evidence which satisfies the John Hancock that such person is insurable.”

A policy underwritten by John Hancock was issued and delivered to Mrs. Davis on December 11, 1987, and on the “acknowledgement form” listed December 11 as the effective date of the policy. On December 21, 1987, Dr. Hayes made a preliminary diagnosis that Mrs. Davis was suffering from lymphoma, a malignancy of the cells. This diagnosis was eventually changed to acute lymphocytic leukemia, a malignancy involving the bone marrow, from which Mrs. Davis died on July 1, 1989.

John Hancock denied Davis’ claim for life insurance benefits on the basis of Mrs. Davis’ alleged misrepresentation and ineligibility regarding her physical condition, and Davis filed this lawsuit. Both parties filed motions for summary judgment, the superior court granted the insurer’s motion and from this ruling, Davis appeals.

1. In his first enumeration of error, Davis claims that the trial court erred in granting John Hancock’s motion for summary judgment and argues that his wife completed the insurance application in good faith and there was no misrepresentation, omission or incorrect statement in the application to preclude recovery. John Hancock argues that Mrs. Davis’ intent in completing the application was irrelevant and that recovery is precluded since she was not in good health at the time of application.

The trial court did not err in granting summary judgment because Mrs. Davis’ application contained materially incorrect statements so as to preclude recovery. OCGA § 33-24-7 (b) .provides: “Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless: (1) Fraudulent; (2) Material either to the acceptance of the risk or to the hazard assumed by the insurer; or (3) The insurer in good faith would either not have issued the policy or contract or would not have issued a policy or contract in as large an amount or at the premium rate as applied for or would not have provided coverage with respect to the hazard resulting in the loss if the true facts had been known to the insurer as required either by the application for the policy or contract or otherwise.” (Emphasis supplied.)

In determining whether the application contained misrepresentations, omissions, concealment of facts, or incorrect statements sufficient to prevent a recovery under the policy, it is immaterial whether Mrs. Davis acted in good faith in completing the application. United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 238 (248 SE2d 635) (1978); Oakes v. Blue Cross Blue Shield &c., 170 Ga. App. 335, 336 (317 SE2d 315) (1984). “In .cases where the application for insurance is attached to and becomes a part of the policy, in order to avoid the policy for a misrepresentation of the applicant made in the application, the insurer need only show that the representation was false and that it was material in that it changed the nature, extent, or character of the risk. OCGA § 33-24-7 (b). This is true although the applicant may have acted in good faith, not knowing that a representation is untrue.” Haugseth v. Cotton States Mut. Ins. Co., 192 Ga. App. 853, 854 (386 SE2d 725) (1989). In Shirley, the factual situation was similar to the case at bar and the Supreme Court concluded that the trial court had misconstrued the law by requiring that the applicant have actual knowledge of the existence of the disease in order to void the policy.

Viewed in favor of Davis, the opponent of the summary judgment motion, OCGA § 9-11-56, Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981), the uncontradicted evidence established that the incurable leukemia Mrs. Davis suffered from existed on December 7, 1987 when she applied for the insurance, despite the fact that the disease was undiagnosed. Furthermore, testimony from a John Hancock representative was uncontradicted that this information was material and that the company would not have accepted the risk had Mrs. Davis’ actual state of health been known. See generally Sanders v. Southern Farm Bureau Life Ins. Co., 174 Ga. App. 888 (332 SE2d 33) (1985); Wood v. Nat. Benefit Life Ins. Co., 631 FSupp. 6 (N.D. Ga. 1984).

Decided November 20, 1991.

Sprouse, Tucker & Ford, William L. Tucker, T. Michael Jones, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, Joseph L. Waldrep, for appellee.

By the clear terms of OCGA § 33-24-7 (b), “incorrect statements” in the application are grounds for voiding a policy. Although this phrase has been construed previously in conjunction with the provisions of subsections (a) and (b) to mean known incorrect statements, not objectively untrue statements, see, e.g., Georgia Intl. Life. Ins. Co. v. Bear’s Den, 162 Ga. App. 833 (292 SE2d 502) (1982), the statute does not so limit the “incorrect statements” which preclude recovery. Although OCGA § 33-24-7 (a) provides that statements made by the insured in the application are representations and not warranties, Shirley held that despite this, “misstatements or misrepresentations are treated as warranties, for the purpose of preventing a recovery under the policy when they come under any one of the three criteria in § 56-2409. [OCGA § 33-24-7.]” Shirley, supra at 238. In clarifying the law regarding this defense, Shirley drew no distinction between statements regarding asymptomatic, latent or unknown diseases and diagnosed, manifested diseases. Because Shirley explicitly stated that no good faith defense exists for “misrepresentations, omissions, concealment of facts, and incorrect statements,” Davis’ argument, citing Fidelity Bankers Life Ins. Co. v. Renew, 121 Ga. App. 883 (176 SE2d 103) (1970); Gilham v. National Life &c. Ins. Co., 104 Ga. App. 459 (122 SE2d 164) (1961), that a good faith defense for omissions is valid in this case is misplaced.

Here, in light of the incorrect statements Mrs. Davis gave on her application regarding her objective physical condition, her recovery is barred. Although her incorrect statement regarding her physical condition was not fraudulent under § 33-24-7 (b) (1), the uncontradicted evidence established that recovery was barred under subsections (2) and (3). See generally Hall v. Time Ins. Co., 663 FSupp. 599 (M.D. Ga. 1987), reversed on other grounds 854 F2d 440 (1988).

2. Because of our conclusion in Division 1, we will not address Davis’ second enumeration of error.

Judgment affirmed.

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


text:
    A91A1430.
    LITTLE v. THE STATE.
    (413 SE2d 496)
   Sognier, Chief Judge.

Frederick Little was charged with possession of cocaine with intent to distribute, driving without a license, and attempting to elude a police officer. A Lowndes County jury convicted him of cocaine possession and attempting to elude, and he appeals from the denial of his motion for new trial.

1. The State’s case against appellant consisted primarily of the arresting officer’s testimony that he observed appellant throw a plastic bag out his car window when the officer pulled up behind the car and turned on his blue lights. The officer testified that after detaining appellant, he retrieved a plastic bag from the roadside, and tests performed on the contents established that it contained 2.5 grams of cocaine. In addition, the State introduced evidence that in 1986 and 1988 appellant had pleaded guilty to possession of small amounts of cocaine. Appellant contends the admission of this similar crimes evidence was error.

In two recent cases, Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) and Stephens v. State, 261 Ga. 467, 468-469 (6) (405 SE2d 483) (1991), the Supreme Court outlined the procedure to be followed by the State when seeking to admit evidence of prior criminal transactions. First, the trial court must hold a hearing pursuant to Uniform Superior Court Rule 31.3 (B) out of the presence of the jury. At this hearing the State must affirmatively show that (1) it seeks to introduce evidence of an independent crime or offense for an appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility; (2) the evidence is sufficient to establish that the accused committed the independent offense; and (3) there is sufficient similarity between the independent offense and the charged crime so that proof of the former tends to prove the latter. Williams, supra at 642 (2) (b). The trial court then must make and include in the record a determination that each of these elements has been satisfactorily shown by the State. Id. Second, in its presentation during trial the State must present to the trier of fact “evidence establishing both that the accused committed an independent offense or act and that the connection and/or similarity between that offense or act and the crime charged is such that proof that the accused committed the former tends to prove that the accused also committed the latter.” Id. at 642 (2) (c); Stephens, supra at 469 (6).

In the case at bar, the trial court did hold a hearing at which the State proffered proof of the three elements required by Williams. However, we need not decide whether the court made the required findings thereon or whether that ruling was correct because the State failed to comply with the required showing before the jury. When presenting the similar crimes evidence to the jury, the State merely introduced certified copies of the guilty pleas. In Williams and Stephens that procedure was held to be reversible error because the jury was not presented with any evidence to establish the similarity or connection between the former transactions and the charged crime. Williams, supra at 642 (2) (d); Stephens, supra at 468-469 (6). We note that some evidence concerning the circumstances of the prior offenses was adduced during the prosecutor’s cross-examination of appellant during the presentation of his defense. However, given the express statement in Williams that the State bears the burden of presenting the requisite evidence to the jury, we do not believe this duty was obviated by the fortuitous circumstance of appellant having elected to testify concerning the prior offenses. Moreover, we cannot say that the evidence was so overwhelming as to make the erroneous admission of the evidence harmless, see Stephens, supra, and accordingly we reverse.

2. Appellant also maintains the evidence was insufficient to authorize a conviction for attempting to elude an officer. At the time of the offense, OCGA § 40-6-395 (a) proscribed the willful failure or refusal to stop for a police officer “when given a visual or an audible signal to bring the vehicle to a stop.” (Emphasis supplied.) However, the indictment charged appellant with attempting to elude “after having been given visual and audible signal to bring the vehicle to a stop.” (Emphasis supplied.) At trial, the arresting officer testified that he used only visual signals.

“The general rule that allegations and proof must correspond is based upon the requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at trial; and (2) that he may be protected against another prosecution for the same offense. [Cit.] If the indictment sets out the offense as done in a particular way, the proof must show it. [Cits.]” Talbot v. State, 198 Ga. App. 636, 637 (402 SE2d 366) (1991). Here, the failure to stop after receiving a signal is an essential element of the offense of attempting to elude, and accordingly the State was required to prove the signal was given in the manner alleged. See id. at 637-638. Since it failed to do so, the evidence was insufficient to support the charge as made in the indictment. See generally Hardrick v. State, 98 Ga. App. 649, 652 (2) (106 SE2d 342) (1958).

Decided November 20, 1991.

J. Bennett Threlkeld, for appellant.

H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

3. Appellant’s remaining enumeration concerns a matter that is unlikely to recur upon retrial, and thus we need not address it.

Judgment reversed.

       OCGA § 40-6-395 (a) was amended effective January 1, 1991 to substitute “and an audible” for “or an audible.” Ga. Laws 1990, p. 2048, § 5.


text:
    A91A0999.
    BALDWIN COUNTY HOSPITAL AUTHORITY et al. v. WRIGHT.
    Decided November 14, 1991
    Reconsideration denied November 21, 1991 —

      Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, Mark E. Robinson, for appellants.
    (413 SE2d 484)
   Andrews, Judge.

We granted the application of the Baldwin County Hospital Authority for interlocutory review of the trial court’s order allowing discovery from it in a lawsuit filed by a physician denied hospital privileges.

Dr. Wright sued for defamation and also alleged that the Hospital proceedings violated due process based in part on hearsay information.

Since this was an action by a physician denied privileges by a peer review committee contending that false information motivated by malice was the basis of the denial, the trial court concluded that a violation of the peer review statute had been alleged and the privilege did not apply.

This court’s analysis reflected in our opinion in Emory Univ. v. Houston, 185 Ga. App. 289 (364 SE2d 70) (1987) recognized differences in the medical review statute, OCGA § 31-7-140 et seq. and the peer review statute, OCGA § 31-7-130 et seq. As to the privilege from discovery, however, the Supreme Court has held that both proceedings are absolutely privileged. Emory Clinic v. Houston, 258 Ga. 434, 435 (369 SE2d 913) (1988).

Therefore, the order granting discovery was in error.

Judgment reversed.

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

Cedric T. Leslie, for appellee.