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

text:
    76735.
    GENERAL HOSPITALS OF HUMANA, INC. v. JENKINS.
    (374 SE2d 739)
   Sognier, Judge.

Ben H. Jenkins, M. D., brought suit against General Hospitals of Humana, Inc., alleging tortious interference with business relations, tortious interference with contract rights, restraint of trade, and intentional infliction of emotional distress, and seeking a declaratory judgment in regard to the validity of a lease agreement. At a pretrial hearing, a consent order was entered allowing Jenkins to remain in possession of disputed rental premises and pay the monthly rent pending a trial on the declaratory judgment portion of the case and a claim for expenses and attorney fees. Those issues were tried by a jury, whose answers to interrogatories determined, inter alia, that a valid oral lease existed and that Jenkins was entitled to $15,000 for attorney fees and expenses of litigation. Final judgment was entered as to these issues on the jury’s special verdict pursuant to OCGA § 9-11-54 (b), and General Hospitals of Humana appeals.

The record reveals that appellee, a physician who had been practicing medicine in the community for over thirty years and had been instrumental in establishing the county hospital which is now operated by appellant, had rented office space from appellant adjacent to appellant’s hospital facility in Newnan pursuant to a written lease from April 1, 1984 until March 31, 1987. At the time appellee agreed to move his medical offices into that space, he was told he needed no renewal option in the lease, but would be able to renew his lease as long as he paid rent. At no time during the course of the three-year written lease was appellee ever in default in his rental payments. However, during that time, a change occurred in appellant’s administration and, although appellee had received recognition for his services to the hospital, differences in regard to administration policies (some of which are the subject of the remaining counts of the lawsuit but were not before the court in this trial) developed between appellee and Jack D. Davis, the executive director of appellant’s hospital.

Shortly before appellee’s written lease expired, he was approached about renewing his lease by the associate executive director of the hospital, Howard Lott, whose duties included the preparation and presentation of leases to physician tenants. All discussions concerning lease renewal took place between appellee and Lott and, after several discussions regarding lease terms, an agreement was finally reached on a one-year lease at a rate 10 percent higher than the rate in the old lease, which was identical to the increases being given the other doctor tenants. Lott then prepared the lease containing the terms to which they had agreed, including a March 31, 1988 termination date, and delivered it to appellee’s office. Appellee signed the lease but did not immediately return it to Lott. Thereafter, on May 13,1987, while appellee was on vacation, Davis wrote appellee a letter attempting to rescind the lease negotiated by Lott and advising appellee to vacate the premises. That demand was repeated in a letter from Davis dated June 11, 1987, stating that since the offer to lease space had been rescinded by the May 13 letter, and “we have not communicated since that correspondence, I do want you to know that we intend to have you vacate [the premises] on or about June 13, 1987

Appellee filed the instant action, alleging that because of the past conduct and actions of appellant and Lott, appellant should be es-topped from contending that Lott did not have the authority to discuss, prepare, present and offer the renewal to him or to bind appellant to those terms. He further contended that appellant’s actions had been in bad faith, stubbornly litigious, and had caused him unnecessary trouble and expense, thereby entitling him to recover reasonable attorney fees and expenses of litigation should the jury find that he was entitled to remain in the office under the terms of an oral lease.

Lott testified at trial that there was no question in his mind that he and appellee agreed on the essential terms of length and rental rate that were typed into the standard renewal form that was submitted by him for appellee’s signature. Appellee testified that he failed to return the signed renewal lease to appellant immediately because he “didn’t think it was anything so earth shaking that I had to do it right then. I knew we had a deal anyway.”

1. In its first four enumerations of error, appellant contends the trial court erred by denying its motion for judgment n.o.v. or for new trial, alleging the absence of any evidence to support the jury’s findings that there was a valid lease agreement. We note initially that we agree with appellant that although the purported oral contract expired on March 31, 1988, and appellee no longer occupies the premises, the correctness vel non of the jury’s determinations on the validity of the lease must still be addressed because the award of attorney fees and expenses of litigation depended on the jury’s determination of the lease issues.

Appellant argues that a lease agreement could not have been established because the condition precedent in the written contract requiring the signatures of its officers was never satisfied. We find this argument fallacious. The written lease was not executed and, therefore, its terms and conditions never became effective. Nor did appellee seek specific performance of the written lease. Rather, he sought a determination that, based on the law and the evidence presented at trial, an oral lease resulted between him and appellant for a period of one year at a rental rate of 10 percent in excess of the rate in the previous lease. OCGA § 44-7-2 (a) provides that “ [contracts creating the relationship of landlord and tenant for any time not exceeding one year may be by parol.” Appellant’s reliance on 20/20 Vision Center v. Hudgens, 256 Ga. 129 (345 SE2d 330) (1986), and Seligman v. Savannah Wholesale Co., 185 Ga. App. 250 (363 SE2d 785) (1987), is misplaced, as the lessees in those cases did not seek to establish valid oral leases but specifically sought to enforce written contracts.

It was undisputed here that Lott and appellee agreed upon a renewal lease upon the terms discussed above, and that both considered the matter to be resolved. There was no evidence that either party contemplated that the oral agreement would become effective only if it was reduced to writing and signed by appellant’s officers, although they both expected the written lease would be executed. The sole probative value of the unexecuted written lease would have been to demonstrate this expectation or, alternatively, the intention not to enter into an oral lease. The jurors had this evidence before them, and no doubt considered it in arriving at their verdict. “Considering all of the evidence together, the jury was authorized to find that there was a ‘meeting of the minds’ as to all of the terms of the contract and a present agreement to lease the premises. Although the parties contemplated the future execution of a written lease agreement, the jury was authorized to find that a binding oral agreement was in effect, and the failure to sign the written instrument did not affect the validity of the oral agreement.” Merry v. Ga. Big Boy Mgt., 135 Ga. App. 707, 708 (1) (218 SE2d 694) (1975).

2. In its final two enumerations of error appellant contends the trial court erred by denying its motions for judgment n.o.v. and for a new trial because the award of attorney fees and expenses of litigation pursuant to OCGA § 13-6-11 was improper in this declaratory judgment case.

We do not agree with appellee that we are precluded from addressing the merits of appellant’s enumerations of error pertaining to the award of attorney fees and expenses of litigation in this action. Appellee argues, relying on Joseph v. Bray, 182 Ga. App. 131 (1) (354 SE2d 878) (1987) and Tanner v. Gilleland, 186 Ga. App. 377 (367 SE2d 257) (1988), that because this issue was not raised in appellant’s motions for a directed verdict, it may not be raised on appeal. However, the record reveals that appellant objected at trial to the introduction of any evidence pertaining to attorney fees, on the ground that attorney fees and expenses of litigation were improper here. Appellant’s post-trial motion, which also raises this ground, was not only a motion for judgment n.o.v. but also, alternatively, a motion for a new trial. See OCGA § 9-11-50 (b). Thus, although appellant may not raise the denial of its motion for judgment n.o.v. as to this issue because the grounds were not specified in its motions for directed verdict, see Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858(2) (360 SE2d 418) (1987), it may enumerate as error the denial of its motion for new trial as to the introduction of evidence regarding attorney fees, having properly objected to the introduction of this evidence at trial. See OCGA § 5-5-22.

Turning, then, to the merits of appellant’s enumeration, we find that the award of attorney fees and expenses of litigation is fatally flawed in this context. Although the complaint, as amended, sought damages for various alleged torts in addition to seeking a declaratory judgment, and we intimate no opinion as to the recoverability of expenses of litigation and attorney fees in connection with those claims, those claims are still pending and have not yet been tried. It is undisputed that the sole issue actually tried and now reviewed here was the declaratory judgment, to which the claim for attorney fees was appended.

The purpose of a declaratory judgment is “to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” OCGA § 9-4-1. In Shippen v. Folsom, 200 Ga. 58 (35 SE2d 915) (1945), the first case in the Georgia Supreme Court addressing the declaratory judgment statute, the court made the oft-quoted remark that prior to the passage of the declaratory judgment act “ ‘you [would] take a step in the dark and then turn on the light to see if you stepped into a hole. Under the declaratory judgment law you turn on the light and then take the step.’ ” Id. at 67-68. “Uncertainty” and “insecurity” are, by definition, necessary before the courts will entertain an action for a declaratory judgment, and its purpose is to permit one to seek direction from the courts as to the propriety of future conduct which might jeopardize one’s interest. Pendleton v. City of Atlanta, 236 Ga. 479 (224 SE2d 357) (1976). Absent this requirement of uncertainty on the part of appellee, no declaratory judgment would have been possible. However, this same requirement of uncertainty makes the award of attorney fees under OCGA § 13-6-11 to appellee in this action impossible.

OCGA § 13-6-11 provides that “[t]he expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.” It is clear that no attorney fees are recoverable under this section for stubborn litigiousness or causing unnecessary trouble and expense where there exists between the parties a bona fide controversy, Buffalo Cab Co. v. Williams, 126 Ga. App. 522 (191 SE2d 317) (1972), such as was present here in regard to whether there existed a valid lease agreement. Although this court has held that an award of attorney fees may be made under OCGA § 13-6-11 despite a bona fide controversy between the parties where attorney fees are sought on the ground that the party has acted in bad faith, Formica Corp. v. Rouse, 176 Ga. App. 548, 549 (336 SE2d 383) (1985), the “bad faith” alleged here was the same conduct showing stubborn litigiousness — i.e., appellant’s insistence that it was not bound because there was no executed written contract. In these circumstances, “[s]uch bad faith damages are not recoverable where there exists a bona fide controversy. [Cit.]” Hightower v. Gen. Motors Corp., 175 Ga. App. 112, 115 (332 SE2d 336) (1985).

Although penalties and attorney fees for “bad faith” have been awarded numerous times in declaratory judgment actions involving an insurance carrier’s refusal to pay a claim, the award of attorney fees in those cases usually involved a different standard under a different statute. OCGA § 33-4-6. Even in those few cases which did involve OCGA § 13-6-11, see, e.g., Hilde v. U. S. Fire Ins. Co., 184 Ga. App. 611 (362 SE2d 69) (1987), we have found no cases, and appellee has cited none, involving the award of attorney fees to the plaintiff in the declaratory judgment action, for whom the threshold requirement of uncertainty raises the specter of a bona fide controversy defense.

Under the circumstances presented here, where the substantial uncertainty and disagreement between the parties led appellee to seek a declaratory judgment as to whether a contract existed between the parties, the award of attorney fees pursuant to OCGA § 13-6-11 was improper and is accordingly reversed.

Judgment affirmed in part and reversed in part.

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

Deen, Presiding Judge,

dissenting.

While I agree fully with the first division of the majority opinion, I must respectfully dissent from the holding in Division 2 because I do not believe that the issue of awarding expenses of litigation and attorney fees was properly raised or preserved for review.

Humana moved for directed verdict both at the close of Jenkins’ evidence and the close of the case, asserting as the sole ground of both motions that because the proper officials did not sign the written renewal lease as required by the condition precedent therein, no oral lease could have resulted. The trial court denied both motions and the case was submitted to the jury on interrogatories. Humana made no objection to these interrogatories or to any instructions given the jury, including charges on the issues of a valid oral contract, an agent’s apparent authority and expenses of litigation under OCGA § 13-6-11.

The jury’s answers to the interrogatories determined (1) that Lott did have the authority, either actual or apparent, to bind Humana to an oral lease with Jenkins; (2) that Lott and Jenkins entered into an oral lease agreement on the essential terms to renew his occupied office space for a term of one year beginning April 1, 1987; (3) that Jenkins and Humana agreed to reduce their oral lease agreement to writing; (4) that Jenkins and Humana did not agree that they would not be bound by their oral lease agreement unless it was subsequently reduced to writing and signed by both parties; and (5) that Jenkins be awarded $15,000 for expenses of litigation. Humana filed a motion for judgment notwithstanding the verdict, or in the alternative for a new trial, again on the basis of Jenkins’ failure to prove that the condition precedent of the written lease renewal agreement had been satisfied, and also challenging the propriety of the award of attorney fees and expenses. This motion was denied and the trial court thereafter amended its judgment on the verdict to direct entry of a final judgment on these issues pursuant to OCGA § 9-11-54 (b), upon the express determination that there was no just reason for delaying the appeal.

Although Humana’s arguments on appeal attack all of the determinations made by the jury in reaching its verdict, no objections were made to the interrogatories upon which it was based prior to their submission to the jury or to the instructions given on these issues. Moreover, the record reveals that the pretrial order agreed to by both parties stated that imposition of attorney fees and costs of litigation would be one of the issues in the case. Parties to stipulations entered into during the course of judicial proceedings are estopped to complain when the results of such agreements or stipulations work adversely to their positions. Thompson v. Wise, 182 Ga. App. 335 (356 SE2d 40) (1987); see also McDonald v. Hester, 115 Ga. App. 740 (155 SE2d 720) (1967).

The trial transcript reveals that shortly before the close of appellee’s evidence appellant, out of the hearing of the jury, objected to the admission of evidence regarding attorney fees and litigation costs, but that the trial court replied that he had previously ruled adversely to that position, in accordance with Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986) (see also OCGA § 9-15-14); and that such evidence should and would be admitted. Thereafter, counsel for plaintiff/appellee testified briefly as to the amount of time spent on the case by himself and his paralegal at their respective hourly rates. However, at the close of all the evidence appellant made absolutely no objection to the trial court’s distribution to the jurors of the interrogatories which would form the verdict, including Nos. 6 and 7, which dealt respectively with whether attorney fees and litigation costs should be awarded; and if so, in what amount. Nor was any objection raised to the trial court’s instructions as to what considerations the jurors should take into account in determining the answers to the interrogatories. Thus, not only did appellant ratify the inclusion of evidence regarding attorney fees and litigation costs by participating in the pretrial order, but it subsequently waived any intermediate objection that might have been raised when it failed to object to the interrogatories and the accompanying instructions. Furthermore, the language of OCGA § 5-5-22 is merely permissive, and the trial court therefore did not err in denying the motion on that ground.

Since appellant’s sole assertion in both of its motions for directed verdict which was validly raised in its motion for judgment n.o.v. or new trial was that the oral lease agreement could not be established due to noncompliance with the condition precedent in the written contract, that is the only question this court is called upon to examine. “ ‘A motion for a directed verdict shall state the specific grounds therefor.’ OCGA § 9-11-50 (a). ‘A ground not mentioned in a motion for directed verdict cannot thereafter be raised on appeal. [Cits.]”’ Grabowski v. Radiology Assoc., 181 Ga. App. 298, 299 (2) (352 SE2d 185) (1986). Accord Johnson v. Hensel Phelps Constr. Co., 250 Ga. 83 (295 SE2d 841) (1982); Allgood Rd. &c. Church v. Smith, 173 Ga. App. 28 (1) (325 SE2d 392) (1984). Likewise, “[t]he grounds asserted in the motion for judgment n.o.v. and on appeal will not be considered because they were not asserted in support of the motions for directed verdict as required by OCGA § 9-11-50 (b). [Cit.]” Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858 (2) (360 SE2d 418) (1987); Revco Discount Drug Centers v. Famble, 173 Ga. App. 330 (3) (326 SE2d 532) (1985).

It is thus clear that by failing to assert the other grounds now argued, either by way of a directed verdict so as to preserve them as the basis for a motion for judgment n.o.v., or by timely objections for consideration in a motion for new trial, Humana may not now raise these issues on appeal. Dubberly v. P. F. Moon & Co., 184 Ga. App. 221 (3) (361 SE2d 223) (1987); Gorlin v. Halpern, 184 Ga. App. 10 (7) (360 SE2d 729) (1987); Long v. Marion, 182 Ga. App. 361 (1) (355 SE2d 711) (1987); F.A.F. Motor Cars v. Childers, 181 Ga. App. 821 (4) (354 SE2d 6) (1987). It follows that even if attorney fees are not recoverable in declaratory judgment actions, as Humana now asserts, “[n]o motion [for directed verdict] having been made on the issue of attorney fees awarded pursuant to OCGA § 13-16-11, this question will not be considered for the first time on appeal.” Joseph v. Bray, 182 Ga. App. 131 (1) (354 SE2d 878) (1987). Accord Tanner v. Gilleland, 186 Ga. App. 377 (367 SE2d 257) (1988).

I therefore respectfully dissent from Division 2.

Beasley, Judge,

dissenting.

I respectfully dissent. I would concur with the majority opinion with respect to the attorney fees issue except that in my view it would not be reached because I depart from both the majority and dissenting opinions with respect to the oral lease issue.

“Where’s the lease?”

The original lease, and the written renewal document submitted to Jenkins and signed by him, provided at the close immediately above his signature:

“Condition Precedent. Notwithstanding anything contained herein to the contrary, this Lease shall not be effective or legally binding upon the parties hereto until it has been reviewed and approved in writing by Landlord’s Regional Vice-President or designee and its Legal Counsel.”

The law provides: “A condition precedent must be performed before the contract becomes absolute and obligatory upon the other party.” OCGA § 13-3-4.

Thus, to be effective, the lease had to be signed by the designated persons and, of necessity, it had to be in writing, for one cannot sign a non-existent document. It is totally contradictory to say that the parties could and did orally agree to be bound by an agreement which, to be effective, had to be not only in writing but also approved in writing by two persons not part of the negotiations.

The original lease was signed by both parties (Lott was not the signer as landlord’s representative although he had negotiated it), and the vice president and legal counsel signed as having approved.

Jenkins testified that the renewal lease was to be the same as the original lease, but for the rental rate and time period. It was. He testified without deviation that the document which Lott sent was, except for rate and period, “exactly like the one I signed before,” “identical,” and because it was in conformity with what he and Lott had negotiated, he signed it. He expressly admitted the Condition Precedent was part of the renewal lease.

However, although Jenkins intended to deliver the document back to the landlord’s negotiating representative, he did not do so. Thus its execution was never completed with the signature of landlord’s representative (not Lott) and written approval of the vice president and legal counsel. It is undisputed that they never even knew Jenkins had signed it. Instead, Jenkins as prospective lessee kept control of the document and could have ignored or discarded it with no breach of it resulting. Everyone, including the jury, seems to agree that there was no binding written lease.

There was no evidence that the parties intended an oral lease, much less one without the Condition Precedent. Jenkins admitted that he intended it to be in writing and “expected” it. He assumed it would be a written lease because that was the prior procedure followed and the other tenants had written leases. He acted on it when it was received, entering his signature and having his assistant sign as witness. Negotiations involved only the rental rate and time period. The other terms, which were many, were never mentioned because the parties intended that they would be the same as in, the original written lease.

If the parties intended an oral lease, what were all of its terms, and what then was the purpose of the written document which both sides referred to as “the lease”?

Because the Condition Precedent goes to the very issue of whether the lease could be oral or written (there was in addition to the Condition Precedent an incorporation provision limiting the lease to its four corners) and requires that it be written, which Jenkins agreed to, there could not possibly be an oral lease.

The Condition Precedent also goes to the very issue of whether the lease could be entered into by negotiator Lott. It requires otherwise, and Jenkins agreed to this provision, as he had before. So there could be no lease without signed approval.

The standard used to review the grant or denial of a directed verdict is the “any evidence” test. Sheffield v. Kirkley, 184 Ga. App. 877, 878 (1) (363 SE2d 68) (1987). Where there is no evidence to support the verdict, the judgment must be set aside. Wright Contracting Co. v. Davis, 93 Ga. App. 810, 816 (1) (92 SE2d 812) (1956); Carr v. Jacuzzi Bros., 133 Ga. App. 70, 74 (7) (210 SE2d 16) (1974).

The fact that Jenkins sought declaratory judgment rather than specific performance is irrelevant. The determinative issue, which would be crucial in both instances, is whether there was a lease. Also, what Jenkins was told prior to entering into the original lease is irrelevant, because it as well as the renewal document contained an incorporation provision.

Likewise, the fact that the hospital did not voice objection to the interrogatories or instructions just prior to their submission to the jury does not preclude its insisting there was no lease. It steadfastly maintained, in motions for directed verdict, for JNOV, and for new trial, that there was no evidence of a binding lease, and it is these rulings which are enumerated as error. I find no authority for the proposition that failure to object to jury interrogatories and instructions deprives a losing party of the right to review of these rulings.

Decided September 15, 1988

Rehearing denied October 18, 1988

Kevin E. Grady, Reta G. Jordan, Michael E. Sumner, for appellant.

Louis K. Polonsky, for appellee.

In sum, all that Jenkins had was a tenancy as described in the provision for “End of Term” pursuant to the original lease. The oral negotiations did not constitute an oral contract but were simply oral negotiations which did not develop into an executed contract.

The effect of the majority decision is to allow the factfinder to create an oral lease out of every year-or-less written lease document which is not signed by both parties yet contains terms which are the same, including the provision that to be effective, the lease must be approved in writing by lessor’s representatives.

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

       Contrary to the statement in the majority opinion, Jenkins did not seek to enforce an oral agreement when he filed suit. In his original complaint, and even as amended, he bottomed his tenancy on the written document as “the lease” and alleged that he “intends to honor all terms and conditions of said lease.” It was only in the pretrial order that he contended there was an oral agreement.

       “Incorporation of Prior Agreement; Amendments. This Lease contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Lease, and no prior agreement or understanding pertaining to any such matter shall be effective for any purpose. No provision of this Lease may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successors in interest.”


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    76907.
    JACKSON v. THE STATE.
    (374 SE2d 777)
   Sognier, Judge.

George Watson Jackson was convicted of unlawful possession of diazepam, a controlled substance, and he appeals.

1. In his first enumeration of error, appellant contends the trial court erred by denying his motions for a directed verdict of acquittal or for a new trial because the State failed to offer any evidence in response to appellant’s motion to suppress evidence obtained in a search of his trailer home pursuant to a no-knock warrant, and thus failed to carry its burden of proving the validity of the search warrant. This enumeration is without merit. Where no additional testimony was furnished, the facts recited in the affidavit itself are determinative of the question of whether probable cause existed for the issuance of a warrant. Lewis v. State, 126 Ga. App. 123, 127 (190 SE2d 123) (1972).

2. We turn therefore to the question of whether the affidavit was insufficient to support the issuance of a warrant, as appellant contends. The record reveals the warrant was issued by a magistrate pursuant to the affidavit of Investigator Brown of the Monroe County Sheriff’s Department, who related information received from three sources that appellant and others were dealing in Quaaludes and other controlled substances. The first source was a confidential informant whom Brown had known for more than six months, and who had provided reliable information on at least two prior occasions. This informant told Brown of overhearing conversations between appellant and Jimmy Smallwood on at least three occasions, in which they discussed selling illegal drugs, including Quaaludes, “crystal meth,” and marijuana. He told Brown where both appellant and Smallwood lived, and related that he had seen marijuana in the home and car of Smallwood, and that appellant had warned him that he would be harmed if he mentioned the drug business.

The second source was a confidential informant who had given reliable information to the FBI in the past that had led to the seizure of illegal drugs on at least three occasions. This informant corroborated the first informant’s information about where appellant and Smallwood lived, and told Brown that he had personally had conversations with appellant, Smallwood, and a third person which indicated involvement by those three people in the distribution of Quaaludes, crystal meth, and marijuana. He also advised Brown that these conversations led him to believe the three men were to receive a shipment of Quaalude tablets by Friday, July 18, 1986.

The third source was Captain A. J. Mathern of the Warner Robins Police Department. Captain Mathern told Brown that he had received information from two sources known by him to be reliable that appellant and others living near him were the source of Quaalude tablets in the Warner Robins area.

In addition, Brown obtained other corroborating information. He confirmed the addresses of appellant and Smallwood by checking with Captain Bohannon of the Monroe County Sheriff’s Department, owner of the trailer park where both appellant and Smallwood lived. On July 21, 1986, a confidential informant advised FBI agent Twibell that appellant had told him the Quaalude tablets would be arriving the following weekend. That informant contacted Brown on July 26, 1986, and stated that appellant and Smallwood had told him the Quaaludes were in, and that they were going to spread them out to avoid detection.

In Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), the Supreme Court adopted an analysis based upon the “totality of the circumstances” made known to the magistrate to determine the sufficiency of an affidavit to support a search warrant. “Under [Gates], the task of the magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Our duty as a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. . . . ‘It is enough, for purposes of assessing probable cause, that “corroboration through other sources of information reduced the chances of a reckless or prevaricating tale,” thus providing “a substantial basis for crediting the hearsay.” [Cit.]’ [Cits.]” State v. Hockman, 171 Ga. App. 504, 505-506 (320 SE2d 241) (1984).

Here, affiant Brown had information from three different sources that appellant and others were dealing in Quaaludes and other drugs. These sources, and several others, corroborated each other. “ ‘ “A magistrate’s determination of probable cause should be paid great deference by reviewing courts.” [Cit.] And, in cases where the demonstration of probable cause in a warrant is doubtful or marginal, “the resolution . . . should be largely determined by the preference to be accorded to warrants.” [Cits.]’ [Cit.]” State v. Morrow, 175 Ga. App. 743, 748 (4) (334 SE2d 344) (1985). “ ‘ “A grudging or negative attitude by reviewing courts toward warrants,” [cit.], is inconsistent both with the desire to encourage use of the warrant process by police officers and with the recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case. [Cit.] A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.’ [Cit.] Utilizing this standard of review, which was adopted by the Georgia Supreme Court in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984), we find that the information, viewed as a whole, provided a substantial basis for the magistrate’s finding of probable cause to believe that contraband was located on the premises.” Borders v. State, 173 Ga. App. 110, 111-112 (325 SE2d 626) (1984).

3. Appellant contends the trial court erred by denying his motion for a directed verdict of acquittal at the conclusion of the State’s evidence and by admitting the State’s Exhibit 1 into evidence because the chain of custody was not adequately established, and the contents of the exhibit were different in description and number from that documented on the return of service.

On July 27, 1986, law enforcement officers from the Monroe County Sheriff’s Department and the FBI, accompanied by a game warden, executed a no-knock search warrant on the trailer occupied by appellant and his wife. Deputy Keith Corley searched the closet in the bedroom where appellant and his wife had been sleeping, and found a paper bag on a shelf. Corley looked in the bag, and handed it to Jimmy Griffin, the game warden, who had witnessed the discovery of the bag. Griffin took the bag into the kitchen and prepared an inventory of its contents. He listed the contents of the bag as being two plastic bags, one containing 100 white tablets marked Lemon 214 and the other containing 61 white tablets marked Lemon 214.

The paper bag and its contents were introduced at trial as State’s Exhibit 1. Griffin testified at trial that S-l was the same bag he had received from Corley, and that there was no other bag of pills with which it could have gotten mixed up. He had control of the bag until he left the trailer, and left the bag with Investigators Mack Brown and Pete Jones of the Monroe County Sheriff’s Department. Jones signed the inventory which had been prepared by Griffin. Asked at trial by counsel for appellant to read the number on the tablets, Jones first thought it was 712, but then agreed it was 714. Brown testified that he took S-l to the crime lab in Macon and turned it over to Shawn Davis of the crime lab. Davis testified that she had received S-1 from Brown and found it to contain two plastic bags, one containing 100 white tablets marked Lemon 714 and the other containing 50 tablets marked Lemon 714. She testified that tablets marked Lemon 714 had been produced by the Lemon Company in the early 1980’s under the trade name Quaalude, but that those tablets had been removed from the market in 1983 because of abuse, and that she knew the tablets in S-l were not the original Quaalude tablets manufactured by Lemon because the “4” in the “714” stamped on the tablets she examined was different from that in the original Lemon-produced tablets. Davis further testified that she had tested the tablets, and determined they contained diazepam, a tranquilizer similar to but stronger than Valium.

Asked about the discrepancy in both the markings on the tablets . and the number of tablets inventoried, Griffin testified that he had no prior familiarity with the marking Lemon 714, and that obviously, he had made a mistake both in reading the marking wrong and in miscounting the number of pills.

“The burden the State must carry to gain admission of such evidence ... is to show with reasonable certainty that the evidence is the same as that [seized] and that there has been no tampering or substitution. [Cits.] The circumstances need only establish reasonable assurance of the identity of the evidence. [Cits.]” Tyson v. State, 184 Ga. App. 309, 311 (2) (361 SE2d 386) (1987). “The State need not negative every possibility of tampering .... [Cit.] ‘(W)hen there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to the weight.’ [Cit.] Appellant has produced no evidence to show substitution of or tampering with the evidence. He relies solely on the discrepancy in testimony as to [the stamped number on the tablets and the number of tablets in one of the plastic bags.] However, it is clear from the record that [State’s Exhibit 1] was in the custody of the law enforcement officers at all times until taken to the State Crime Lab. Thus the State has shown with ‘reasonable certainty’ that the [exhibit] offered into evidence is the same as that which was seized.” Anderson v. State, 247 Ga. 397, 399 (2) (276 SE2d 603) (1981).

We find that the chain of custody was adequately accounted for. The discrepancies noted would go to the weight of the evidence and not its admissibility. “The weight of the evidence and the credibility of the witnesses are questions for the factfinder. [Cits.]” Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986). Here, the jury chose to believe the State’s witnesses as to State’s Exhibit 1, and it was authorized to do so. We find no merit in this enumeration.

4. Appellant maintains the trial court erred by denying his motion for a directed verdict of acquittal at the close of all the evidence because appellant denied any knowledge of the presence of any illegal substance in his home, and nothing in the record shows appellant had actual or constructive possession of State’s Exhibit 1. We do not agree.

Contrary to appellant’s argument that no evidence showed he had knowledge of the contraband or the power or intention to control it, and that it could have been the property of someone else in the household, the contraband was found in the closet of his bedroom and consequently he had at least joint constructive possession of the contraband, along with his wife, who was also arrested and indicted. Further, there was testimony from the law enforcement officers that appellant appeared to be under the influence of something, but that they detected no odor of alcohol. The jury thus had the task of evaluating the materially conflicting testimony. “We cannot say which evidence the jury believed and which evidence the jury rejected, nor will we now substitute our judgment because we did not have the opportunity to hear the witnesses and observe their demeanor. [Cits.] The verdict evinces that the jury chose to disbelieve the material parts of [appellant’s] testimony .... [Cits.] We must view the evidence in a light most favorable to the verdict and, in doing so, we conclude that the evidence was sufficient to exclude every reasonable hypothesis save [appellant’s] guilt and that any rational trier of fact could have found [appellant] guilty beyond a reasonable doubt. [Cits.]” Castillo v. State, 166 Ga. App. 817, 821 (1) (305 SE2d 629) (1983).

5. Appellant finally alleges the trial court erred by charging the jury that it could not consider the guilt or innocence of his wife in determining his guilt or innocence, and by failing to charge the jury as to equal access as requested. Appellant argues that although normally the guilt or innocence of another party may not be considered by the jury, in this case the trial court deprived appellant of his defense of equal access by charging the jury they could not consider the guilt or innocence of his wife. Because appellant and his wife were indicted jointly, we find no merit in this enumeration, since “[t]he ‘equal access’ rule is not nearly as broad as [appellant] sought to apply it at trial or as [he] now would have us apply it. . . . The rule, conceptually and historically, has no application where, as here, all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of that contraband. [Cits.]” Castillo, supra at 821-822 (2). Further, the trial court did charge the jury that if they determined from the evidence “that persons other than [appellant] had equal opportunity to possess or place the articles of contraband upon the described premises, then in that event, [they] should acquit [appellant] unless it be shown beyond a reasonable doubt that [appellant] knowingly possessed the contraband or shared possession or control with another person and aided and abetted or procured the other in possessing and having under his control contraband.” We find that this did not deprive appellant of any “equal access” defense except as to his wife, to whom the rule would not apply. Accordingly, we find no error in the trial court’s failure to charge the jury in the exact language requested by appellant. Daniels v. State, 184 Ga. App. 689, 690 (2) (362 SE2d 775) (1987).

Decided October 7, 1988

Rehearing denied October 18, 1988

F. Robert Raley, for appellant.

E. Byron Smith, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


text:
    76948.
    PIGGLY WIGGLY SOUTHERN v. THIGPEN.
    (374 SE2d 773)
   Sognier, Judge.

Lawrence Thigpen brought suit against Piggly Wiggly Southern to recover damages incurred when he slipped and fell in a Piggly Wiggly supermarket. The trial court denied Piggly Wiggly’s motion for summary judgment but certified its order for immediate review, and we granted this interlocutory appeal.

The record reveals that on July 9, 1984, appellee and his wife entered appellant’s market at approximately 6:00 p.m. to purchase groceries. The weather was fair at the time they entered the store. They shopped for approximately thirty to forty-five minutes, and went through the checkout line, where appellee’s wife paid for the groceries and exited the store. Appellee was walking behind his wife and was about halfway to the exit from the checkout counter when he fell.

During the time appellee and his wife were shopping, it had begun to rain lightly, and Bobby Gladdin, the manager of the store, testified by deposition that some water was being tracked into the store on shopping carts that were wheeled back into the store from outside. Gladdin testified that he was responsible for mopping the store on such occasions, and that he had mopped the area where appellee fell about five minutes before appellee’s fall. He also testified that two signs reading “Caution, Wet Floor” were placed near the entrance and exit, and were so close to where appellee fell that appellee “could have touched the sign.”

Both appellee and his wife denied seeing any such signs, and appellee’s wife testified that “[t]here was none.” Both also denied they knew it was raining until they exited the store. Both denied seeing any water on the terrazzo floor of the store, but appellee testified that after getting up from his fall, he noticed that portions of his clothing that had made contact with the floor were damp.

Appellant contends the trial court erred by denying its motion for summary judgment, relying on Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44 (332 SE2d 304) (1985), because here, as in Colbert, there was no evidence of negligence on the part of the store, where “the evidence is undisputed that, under the rainy conditions, the [store] exercised ‘such diligence toward making the store safe as a good business man is in such matters accustomed to use[,] [Cits.]’ [Cits.],” id. at 46 (1), and that consequently there remains no genuine issue of material fact and appellant is entitled to judgment as a matter of law.

However, we find this case distinguishable factually from Colbert, supra, and from Gibson v. Consolidated Credit Corp., 110 Ga. App. 170 (138 SE2d 77) (1964), which appellant also cites. In both those cases, it had been raining earlier in the day, and thus, whether or not it had been raining at the precise time they entered the respective stores, the plaintiffs in those cases had, or should have had, the expectation that they might encounter wet floors because of prior rainy conditions. In the case sub judice, the weather had been fair that day, and it did not actually rain until appellee was inside the store. Thus, the “common knowledge” present in both Colbert and Gibson, supra, that “some water will normally be present where shoppers pass during rainy weather,” Colbert, supra at 45 (1); see also Gibson, supra at 174-175, may not be attributed to appellee, and the knowledge of the parties in the case at bar is not equal, as it is uncontroverted that appellant actually knew the floor was wet.

In addition, we find an issue of fact as to whether there were signs warning the store’s patrons of wet floors. The evidence is in sharp conflict on this point. The manager testified the signs were put out before appellee’s fall. Appellee’s wife insisted not only that she did not see them, but that they were not there. Although appellant argues that this is irrelevant because the rain itself provides the warning, citing Colbert, supra, and Alterman Foods v. Munford, 178 Ga. App. 214 (342 SE2d 480) (1986), unlike the situation in the case at bar, in both those cases “ ‘ “(appellee) was aware of the weather conditions ....”’ [Cits.]” Id. at 215. We cannot say as a matter of law that in a case where no rain had fallen before appellee entered the store, and appellee had no knowledge that it was raining while he was in the store, he had or should have had ample warning of wet and slippery conditions in the store because of weather conditions.

Decided October 6, 1988

Rehearing denied October 18, 1988

Daniell S. Landers, Bryant H. Bower, Jr., for appellant.

Robert B. Sumner, Robert L. Cork, for appellee.

“Summary judgment is proper when ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ [Cits.] In terms of evidentiary standards, the award or denial of summary judgment is analogous to the granting or the denial of a directed verdict. [Cit.] All evidence must be construed against the movant; the party opposing the motion is to be given the benefit of all reasonable doubts and favorable inferences. [Cits.] Moreover, when the movant is the defendant, he bears a double burden: he must pierce the plaintiff’s pleadings and affirmatively negate one or more of the elements of plaintiff’s case, and he must establish that there are no genuine issues of material fact to be tried. [Cit.]” Coca-Cola Co. v. Denmark, 182 Ga. App. 883, 884 (1) (357 SE2d 286) (1987). We find that appellant in this case has not carried either burden, and consequently the trial court did not err by denying its motion for summary judgment. See id. at 884-885 (1).

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


text:
    76993.
    CRAWFORD v. THE STATE.
    (374 SE2d 781)
   Sognier, Judge.

James Daniel Crawford was convicted in a bifurcated trial of burglary and possession of a firearm by a convicted felon, and he appeals.

1. Appellant enumerates as error the trial court’s denial of his motions for mistrial made after the district attorney on two occasions asked questions which suggested that appellant may not have disclosed to police his contention that he and the burglary victim staged the crime to defraud her insurance company. Appellant contends these questions constituted impermissible comments on his right to remain silent. The record reveals that the trial court denied defense counsel’s motions for mistrial made after each question was asked, but did sustain counsel’s objections, gave the jury extensive curative instructions, and also asked the jurors whether they could disregard the matter, receiving affirmative responses from them.

After curative instructions were given, counsel interposed no further objections or motions. Thus, appellant’s enumeration presents nothing for this court to review. Powell v. State, 185 Ga. App. 464, 465 (2) (364 SE2d 599) (1988). Further, given the substantial evidence of guilt and the scope of the curative instructions given by the trial court, the challenged questions are unlikely to have contributed to the jury’s conclusions. See Yeargin v. State, 164 Ga. App. 835, 840 (12) (298 SE2d 606) (1982).

2. In his remaining enumeration of error, appellant contends the trial court’s charge to the jury regarding the elements of the offense of burglary was erroneous because the charge authorized the jury to find him guilty based on a manner not alleged in the indictment. The trial court instructed the jury that “a person commits the offense of burglary when without authority and with the intent to commit a felony or theft therein, he enters the dwelling house of another. I further charge you that if you should find beyond a reasonable doubt that the crime of burglary has been committed as charged in this Indictment and that certain personal property was stolen as a result of such crime, . . . you, the jury, may infer guilt as to the charge of burglary as set forth in the Indictment . . . .”

“It is reversible error to instruct the jury that an offense may be committed in more than one manner when only one manner is alleged in the accusation if no remedial instructions are given to limit the jury’s consideration to the manner alleged. [Cit.]” Mathews v. State, 176 Ga. App. 394, 395 (336 SE2d 259) (1985). In the instant case, the trial court did begin the charge by reciting the full statutory definition of burglary, see OCGA § 16-7-1 (a), although appellant was charged only with entry into a home with intent to commit a theft. However, the trial judge then limited the jury’s consideration to the method set forth in the indictment, which was sent to the jury room when the jury retired to deliberate, and specifically referred to “certain personal property [that] was stolen.” “This remedial charge effectively cured any possible prejudice to the appellant arising from the earlier, more general charge. We therefore find no error.” Lumpkin v. State, 249 Ga. 834, 836 (295 SE2d 86) (1982). See also Slack v. State, 159 Ga. App. 185 (2) (283 SE2d 64) (1981).

Judgment affirmed.

Deen, P. J., and Carley, J., concur.

Decided October 7, 1988

Rehearing denied October 18, 1988.

W. Keith Davidson, for appellant.

Thomas C. Lawler III, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.


author: Birdsong, Chief Judge.

text:
    77052.
    RICHMOND LEASING COMPANY, INC. v. FIRST UNION BANK OF AUGUSTA.
    (374 SE2d 746)
   Birdsong, Chief Judge.

Richmond Leasing Company, Inc., appeals from the trial court’s grant of summary judgment to appellee, the First Union Bank of Augusta. The trial court found that appellant had executed a security deed on two parcels of real estate as security for loans from the appellee bank, and upon failure of appellant to make timely payments the bank foreclosed upon the security. Foreclosure proceedings were automatically stayed when appellant filed for bankruptcy. The bankruptcy court released the property to the bank and the foreclosure proceeded. The property was advertised for sale and the sale took place on April 7, 1981, with the appellee being the successful bidder. This action was filed on April 6, 1987.

The complaint sought recovery of approximately $376,000 for an alleged breach of contract, contending the bank breached its obligation of good faith to the appellant in the sale of the property securing appellant’s obligations to the bank. Appellee’s answer asserted, inter alia, the defense of the statute of limitations. The bank filed a motion to dismiss, contending the complaint had been filed after the statute ran. Subsequently, the bank filed an affidavit “in support of Motion for Summary Judgment” by its senior vice president, showing execution of two notes and a security deed by appellant, default on payment of the notes, and foreclosure under the power of sale in the security deed. Thereafter, the bank filed an affidavit of its attorney, to support its “Motion to Dismiss,” which showed the attorney had examined the realty records in the office of the Clerk of Richmond County and they showed three security deeds from appellant to appellee, which were unsatisfied of record and outstanding on the date of the foreclosure sale, April 7, 1981.

The trial court issued its judgment, citing the fact that appellee bank “having moved the Court for a summary judgment” found “there is no genuine issue of material fact and that defendant [bank] is entitled to judgment as a matter of law . . . and that the complaint is dismissed. . . .”

The record does not contain a motion for summary judgment or a rule nisi for a hearing on such motion. Appellant debtor brings this appeal from the trial court’s judgment. Held:

1. Appellant has enumerated four errors. We will discuss and resolve only the errors enumerated, and only upon the grounds set forth for the claim of error. See Velkey v. Grimes, 214 Ga. 420, 421 (105 SE2d 224); Gee v. Chattahoochee Tractor Sales, 172 Ga. App. 351, 354 (323 SE2d 176).

2. Appellant contends the trial court erred in granting summary judgment to appellee, because the record shows no motion for summary judgment was ever made and no notice of a hearing on a motion for summary judgment was ever given to the appellant. It is clear that OCGA § 9-11-56 (c) contemplates a written motion will be made when asking for summary judgment for it is to be “served [on the opposing party] at least 30 days before the time fixed for the hearing.” It is equally clear that the Civil Practice Act provides that if a party files a motion for judgment on the pleadings and “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56.” OCGA § 9-11-12 (c). Hence, in a procedural context, the CPA sanctions the hearing of a motion for a summary judgment even though no such motion is ever filed. See Williams v. Columbus, Ga., 151 Ga. App. 311 (259 SE2d 705).

In the instant case, the defense of the statute of limitations is required to be specially pleaded (OCGA § 9-11-8 (c)) and appellee raised this defense in his answer and then filed a motion to dismiss based on the same ground. The trial court must have recognized that the summary judgment procedure is the proper method to secure a ruling on the sufficiency of the evidence to establish the running of the statute of limitations. Bingham v. Advance Indus. Security, 138 Ga. App. 875 (2) (228 SE2d 1); Houston v. Doe, 136 Ga. App. 583 (2) (222 SE2d 131). After appellee filed its motion to dismiss on the ground of the running of the statute of limitations (May 3) and the hearing was scheduled (July 8), appellee then filed an affidavit “in support of motion for summary judgment” (August 26, 1987).

Appellant has filed a motion to supplement the record on appeal and attached, inter alia, a Motion to Strike Defendant’s Briefs, which bears a stamp indicating it was filed with the clerk of the trial court. We will grant appellant’s motion as to this document. See OCGA § 5-6-41 (f) (last sentence). This motion to strike requested that appellee’s brief “in Support of Motion for Summary Judgment” be stricken. It reflects that “[a] hearing was held on July 8, 1987 concerning [appellee’s] Motion to Dismiss” and was continued to August 31, 1987. And, that on August 26, 1987, the appellee “filed another brief in Support of Summary Judgment which it is assumed is another name given to its Motion to Dismiss as no other notice of hearing has been filed.” In this motion to strike, appellant argued that he had not been given five days’ notice of the motion before the hearing under OCGA § 9-11-5 (d). We will note in passing that appellant is appearing pro se, and that his Motion to Strike, and his request for a 15-day extension to reply, was filed on December 3, 1987, and the court had entered its judgment on November 9, 1987. Also, on the same date that appellant filed his motion to strike, he filed his notice of appeal from the court’s judgment, which deprived the trial court of jurisdiction since the case is on appeal after the filing of the notice. Cohran v. Carlin, 249 Ga. 510 (291 SE2d 538).

The record also reflects that the hearing of July 8 was continued to August 31, and that on August 26, 1987, the appellee filed its brief in support of summary judgment. Thereafter, on September 16, 1987, the trial court issued its order “to allow for the notice provided by law in which to reply to Defendant’s Brief in Support of Motion to Dismiss and for Summary Judgment, [in which] the Plaintiff is hereby allowed 30 days from August 31, 1987 in which to file a Supplemental Brief in Reply to the same.”

In consideration of the foregoing, it is apparent that the trial court and the parties recognized the proper procedure to test the sufficiency of the evidence to support a claim of the running of the statute of limitations was by motion for summary judgment. Bingham, supra; Houston, supra. Further, that a motion to dismiss based on the pleadings in which additional evidence was heard automatically converted the motion to dismiss to one for summary judgment. OCGA § 9-11-12 (c). Hence, all parties and the court treated the motion to dismiss as one for summary judgment (in the briefs and the court’s orders). The court’s order recited that appellee “having moved the Court for a summary judgment” and “to allow for the notice provided by law in which to reply to the Defendant’s Brief in Support of Motion to Dismiss and for Summary Judgment” (emphasis supplied), the appellant was allowed an additional 30 days to file a brief. Thus, all parties and the court treated the motion to dismiss as one for summary judgment since evidence was heard and a hearing was held thereon with notice being given to appellant of this fact. No objection was made to this procedure. And, under the Uniform Rules (Rule 6.3), unless otherwise ordered by the court, or requested by one of the parties, all motions in a civil action, including a motion for summary judgment, will be decided without oral argument. Dallas Blue Haven Pools v. Taslimi, 180 Ga. App. 734 (1) (350 SE2d 265), aff’d, 256 Ga. 739 (354 SE2d 160). There is no request for oral argument in the record, the trial court did not err in deciding the sufficiency of the evidence to support a claim of the running of the statute of limitations by summary judgment, after all parties treated the motion to dismiss as one for summary judgment and after notice was given to the respondent.

3. Appellant complains that the trial court dismissed his action even though appellee “cited no case or statute which would indicate that the six-year statute on written contracts would start running on April 3, 1981, and not later as the appellant claims.” Appellant contended in the trial court, and now on appeal, that his action was one for breach of contract, and it was treated as such by the trial court. The parties were in agreement that the period of limitation for this contract was six years. What the parties disagreed on was when the statute began running. Appellee argued that if there was a breach of contract, “ ‘ “[u]nder Georgia law, the statute of limitations runs from the time the contract is broken ‘and not at the time the actual damage results or is ascertained.’ ” ’ ” Owen v. Mobley Constr. Co., 171 Ga. App. 462 (1) (320 SE2d 255); accord Space Leasing Assoc. v. Atlantic Bldg. Systems, 144 Ga. App. 320 (2) (241 SE2d 438). Appellant contends “the statute started to run on the day of the foreclosure [April 7, 1981] or perhaps the date that the foreclosure was recorded on April 16, 1981.”

The trial court found no breach by appellee in the content of the advertisement of the sale of the secured property, or in the manner in which the sale was conducted. The trial court followed the rule set forth in Owen, supra, and concluded that the last possible breach occurred on April 3, 1981, the date of the last notice of the advertised sale, and was barred by the six-year limitation for an action on a simple contract. We agree with the trial court that nothing occurred after April 3, 1981, which would constitute a breach and any action sounding in tort or simple contract was barred by the six-year statute of limitations.

4. We find no merit to appellant’s remaining enumerations of error alleging the appellee “never specified any grounds on which it sought summary judgment” and that the affidavit of appellee’s senior vice president “should not have been given any credence by the trial court” because appellant contended it contained “gross misrepresentations and instances of abject perjury.” The “grounds” for every motion for summary judgment are the statutory grounds, i.e. “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .” OCGA § 9-11-56 (c).

Appellant’s appellate brief refers this court to a document not contained in the record or in his motion before this court to supplement the record. An appellate court takes its evidence from the record, and such support cannot be done by evidentiary assertions in the brief. A brief cannot serve in lieu of the record or the transcript for the purpose of demonstrating error. Holzmeister v. State, 156 Ga. App. 94 (1) (274 SE2d 109); accord York v. Miller, 168 Ga. App. 849, 850 (310 SE2d 577); Lowery v. Horn, 147 Ga. App. 880 (251 SE2d 840).

Decided September 21, 1988

Rehearing denied October 18, 1988

Richard S. Hesley, Jr., pro se.

O. Palmour Hollis, Ziva Bruckner, for appellee.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Deen, Presiding Judge.

text:
    77205.
    FIRST GEORGIA LEASING, INC. v. FIRST GEORGIA BANK et al.
    (374 SE2d 751)
   Deen, Presiding Judge.

First Georgia Leasing, Inc., appeals from an order of the trial court which granted a directed verdict in favor of First Georgia Bank. First Georgia Leasing brought suit against the bank under the Georgia Trademark Statute and the Uniform Deceptive Practices Act seeking to recover all of the profits earned by First Georgia Bank from its vehicle leasing operation for a seven-year period, exemplary damages, and attorney fees. A few months before trial, the complaint was amended to assert a claim for “unsanctioned appropriation of plaintiff’s corporate name” and sought to recover “the reasonable value of the benefit derived by the defendant in its use of the plaintiff’s name.”

1. Although appellant claimed that First Georgia Bank, by calling its auto leasing division “First Georgia Bank Leasing,” appropriated its corporate name, “First Georgia Leasing, Inc.,” the evidence showed that no one ever adopted the leasing company’s corporate name to describe its vehicle leasing operation. The issue is therefore whether the bank appropriated appellant’s trade name, “First Georgia Leasing,” and whether the bank’s use of “First Georgia Bank Leasing” rendered it liable for unfair competition.

It has long been established that “when a person has adopted, as the name of a business, a term originally geographical and by his efforts develops a reputation and goodwill for his business and products so that the name comes to mean that particular business and its products in the public mind, the name acquires a secondary meaning and the owner is entitled to protection in its use.” National Brands Stores v. Muse & Assoc., 183 Ga. 88 (187 SE 84) (1936). The courts have found that the absence of any proof by the plaintiff of a secondary meaning for its trade name was dispositive of the case. See White’s Wig Imports v. Wigmasters’ Import Co., 226 Ga. 779 (177 SE2d 678) (1970); First Fed. Savings &c. Assn. v. First Fin. &c. Corp., 207 Ga. 695 (64 SE2d 58) (1951); Dolphin Homes Corp. v. Tocomc Dev. Corp., 223 Ga. 455 (156 SE2d 45) (1967); Multiple Realty v. Multiple Listing Svc., 220 Ga. 437 (139 SE2d 326) (1964).

In the instant case, the evidence showed that First Georgia Bank had used the name “First Georgia” for four and one-half years before appellant was incorporated. The testimony of the plaintiff’s witnesses showed that the general public equated the name “First Georgia” with the bank because the leasing company frequently received telephone calls from people who thought that they were calling the bank’s leasing department. The remaining evidence presented no proof that the leasing company’s trade name had acquired a secondary meaning. It consisted of newspaper advertisements (without the name of the publication, date, or frequency of the ads), testimony that flyers were placed on cars in shopping centers (without the number of cars, dates, or location stated), and testimony that the business was listed in the 1985 suburban Yellow Pages telephone directory.

As appellant presented no evidence to prove that its trade name had acquired a secondary meaning, the trial court did not err in granting a motion for a directed verdict in favor of the defendant. “The directing of a verdict is a ‘very, very grave matter’ [Cit.], and as a vehicle of justice, is proper only where ‘there is no issue of (material) fact, or unless the proved facts, viewed from every possible legal point, would sustain no other finding than the one so directed [Cit.]’ . . . The directed verdict is á substantive procedure for removing the case from the jury when the plaintiff’s evidence viewed in the most favorable light is without conflict, and all the reasonable deductions therefrom demand a verdict for the defendant.” Able-Craft, Inc. v. Bradshaw, 167 Ga. App. 725, 726 (307 SE2d 671) (1983). We find no error in the trial court’s grant of a directed verdict in favor of the defendant.

2. As appellant has not established a prima facie case of liability and had completed all of its case except for the testimony of the bank’s comptroller, it was not error to exclude his testimony. Appellant sought this evidence only as a part of its effort to prove the bank’s profits, which it contended were the proper measure of damages. We find no error in excluding this evidence.

3. Appellant also asserts as error the trial court’s exclusion of certain newspaper and telephone directory advertisements. There was no authentication of these documents except for the testimony of the widow of First Georgia Leasing’s president that she saw such advertisements in the suburban Yellow Pages. The court sustained the defendant’s objection to the admission into evidence of photocopies of the advertisements. OCGA § 24-5-4 (a) provides: “The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.” Photostatic copies are not best evidence and may not be admitted over objection without accounting for the original. Jones v. Sudduth, 162 Ga. App. 602, 603 (292 SE2d 448) (1982); Cox v. State, 93 Ga. App. 533 (92 SE2d 260) (1956).

Decided October 3, 1988

Rehearing denied October 18, 1988

James L. Ford, for appellant.

Herbert D. Shellhouse, for appellees.

4. Appellee’s motion for a $500 penalty for a frivolous appeal is denied.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Per curiam.

text:
    77393.
    In the Interest of C. C. C.
    (374 SE2d 754)
   Per curiam.

Appellant, a minor child, was found to be delinquent and in need of supervision after a hearing in juvenile court. He was accused of Criminal Damage to Property in the Second Degree pursuant to OCGA § 16-7-23 in that he caused more than $100 in damage to a metal building.

The evidence showed that the eleven-year-old child was camping out in the backyard of a friend with four other boys when they decided to obtain some spray paint from the basement of a neighbor. The evidence showed that appellant did not participate in obtaining the paint, but that he did accompany the other boys to the metal building where the spray paint was applied to the exterior of the building and a concrete hutment. The evidence is conflicting as to whether appellant participated in the painting episode. The other four boys had a separate hearing, as appellant’s attorney had requested a severance. The court found C. C. C. IV, to be delinquent as he was involved “in some manner” in the misconduct, ordered that he and the four other children pay $3,254.52 in damages, and placed him on probation until he reached majority.

1. Appellant contends that Judge Bryant was disqualified to hear evidence in the case because he discussed the case with a stranger to the proceedings and secretly held resentment, bias and prejudice against him which was not disclosed until he ruled upon the case.

Counsel for appellant appeared before Judge Bryant in September of 1987, and requested that the charges against C. C. C. IV, be severed from those against the other boys. The continuance was granted and a hearing was set in December of 1987 for C. C. C. IV. Between these dates, counsel made statements to a third party that the judge should disqualify himself because he was biased. This statement was related by the third party to the judge.

Appellant’s counsel knew that the judge heard the evidence in the other boys’ case, but proceeded to trial with that knowledge without filing a motion to recuse. After a careful examination of the transcript, we find no evidence of the judge’s alleged bias. While the judge did state prior to making his ruling that he was hurt by and resented counsel’s statement to a third party, there is nothing in the transcript to indicate that his ruling was based upon anything other than the evidence presented in the case.

Bias or prejudice on the part of a judge, absent a statutory provision, does not disqualify him in a case. J. B. v. State of Ga., 139 Ga. App. 545 (228 SE2d 712) (1976). A waiver of a disqualification may occur by implication by proceeding with the trial of the case without objection. Georgia Power Co. v. Watts, 184 Ga. 135 (190 SE 654) (1937). As counsel did not file a motion to recuse, he waived any objection that he had to the judge’s presiding over the case. A careful examination of the transcript shows that the court considered only the facts which were presented in evidence in the instant case.

2. Appellant next asserts as error the trial court’s amendment of the petition to show the juvenile to be C. C. C. IV, rather than C. C. C., as stated on the petition, in finding the child to be delinquent, and in entering the order and conditions of probation based on a void complaint.

The court inquired if the juvenile was C. C. C. Ill, since his father’s name was stated as C. C. C., Jr., on the complaint. Counsel informed the court that he was C. C. C. IV. The court then ordered that the petition be amended to reflect this change. The Uniform Juvenile Court Rules provide that “[a] petition may be amended on the court’s motion or on motion of the petitioner at any time prior to adjudication, provided that the court shall grant the parties such additional time to prepare as may be required to ensure a full and fair hearing. Amendments shall be freely permitted in the interest of justice and the welfare of the child.” Counsel made no objection to the amendment and did not request additional time to prepare. Therefore, there is no issue preserved for appellate review. Daniels v. State, 183 Ga. App. 222 (358 SE2d 637) (1987).

3. It was not error for the trial court to refuse to have J. R., one of the other boys involved in the incident, produced to testify.

The evidence showed that the boy was not subpoenaed and that he was in school when the hearing began. Counsel contends that C. C. C. IV’s mother understood that a deputy who notified her of the hearing date would notify the other parties to be present. There is nothing in the record to indicate that anyone requested J. R.’s presence at the hearing, and counsel admitted to the court that he was not subpoenaed. There is no merit in this enumeration.

4. In his fourth enumeration of error, appellant contends that the court erred in denying certain counts contained in his motion for a new trial. We have dealt with some of those issues above and will here consider his contention that the court erred in adjudicating C. C. C. IV to be delinquent and in ordering restitution.

There was sufficient evidence presented for the court to find that he participated in the spray-painting episode. One of the witness-participants testified that appellant did some painting on the retaining wall which maintains the driveway to the building in question. C. C. C. IV denied that he had done any painting, but claimed that he was afraid to leave because of a big Doberman dog in the neighborhood. Counsel tried to impeach the witness. The question of the credibility of a witness is an issue for the trier of fact. Redd v. State, 154 Ga. App. 373 (268 SE2d 423) (1980). We find no merit in the argument that he could not be found to be a participant because the complaint alleged only that he painted the metal building. Due process requires that the juvenile petition must “(1) . . . contain sufficient factual details to inform the juvenile of the nature of the offense; and (2) . . . provide data adequate to enable the accused to prepare his defense.” T. L. T. v. State of Ga., 133 Ga. App. 895, 897 (212 SE2d 650) (1975). The concrete butment was a part of a driveway leading up to the building, and we find that the complaint was sufficient to place the juvenile and his parents on notice of the charge against him so that he could prepare his defense.

The trial court had the authority under OCGA § 15-11-35 (5) to require the juvenile to make restitution.

5. Finally, appellant asserts as error the trial court’s refusal to permit his attorney to remain in the courtroom at the September hearing for the other participants in the spray-painting episode and in denying him access to the transcript of the hearing.

When counsel requested and was granted a continuance, he was no longer a party to the case and was properly excluded under Rule 11.6 of the Uniform Rules for the Juvenile Courts: “The general public shall be excluded from all hearings except those concerning juvenile traffic offenses. Only the parties, their counsel, witnesses, other persons accompanying a party for his assistance and any other persons as the court finds have a proper interest in the proceeding or in the work of the court may be admitted by the court.” The record does not contain any motion filed by counsel, under the exception provision, claiming that he had a right to be present at the hearing. As he did not object, he cannot now complain. Daniels v. State, supra.

Decided October 4, 1988

Rehearing denied October 18, 1988

William 0. Carter, for appellant.

Lindsay A. Tise, Jr., District Attorney, John H. Bailey, Jr., Assistant District Attorney, for appellee.

Counsel admits that he made only an oral request for a transcript of the hearing. Under Rule 3.3 papers pertaining to Juvenile cases cannot be removed from the clerk’s office without a written order from the judge. As counsel did not obtain the requisite order, he may not object to the court’s failure to supply him with a transcript of the September hearing. Daniels v. State, supra.

Judgment affirmed.

Deen, P. J., Carley and Sognier, JJ., concur.


author: Beasley, Judge.

text:
    77069.
    M. WALTER & COMPANY v. NORTH HIGHLAND ASSEMBLY OF GOD, INC.
    (374 SE2d 792)
   Beasley, Judge.

The basic facts in this case were set forth in a prior appearance before this court. See M. Walter & Co. v. N. Highland Assembly of God, 184 Ga. 270 (361 SE2d 256) (1987), where the trial court’s grant of summary judgment to defendant N. Highland was reversed. This court found there were issues for a jury’s determination, in the context of accord and satisfaction, regarding whether a voucher was sent and received, what was meant by the language on it, and whether plaintiff Walter understood its proffer as a final settlement and so accepted it.

Afterwards the case was tried by the court without a jury. Upon Walter’s request (see OCGA § 9-11-52 as amended by Ga. L. 1987, p. 1057), the court entered findings of fact and conclusions of law, holding in favor of N. Highland. The determination was based upon these facts. N. Highland ordered 777 Christmas trees from Walter and on November 27, 1986 received a shipment of 428 trees, leaving a shortage of 349 trees. Robert French who was in charge of the Christmas tree sale for N. Highland testified that he notified Walter of the shortage and was assured that the remaining trees would soon arrive but they never did. Walter was also notified that a portion of the delivered trees was not merchantable because of broken limbs, excessive shedding and other problems and did not conform to the order because they were too tall. N. Highland was unable to sell many of the trees, which had to be thrown away. Walter inspected the trees and a dispute developed regarding the quality of the trees and the amount owed.

The trial court also found that Tom Maxsenovitch, who collected on accounts for Walter, had apparent and implied authority to settle and reduce accounts because he had done so on other accounts. After a discussion with French, Walter and N. Highland agreed that N. Highland was to send a check for $3,700 to pay the account in full. Pursuant to this discussion N. Highland forwarded a check to Walter with language stating “adjusted balance per telephone conversation from Macon, Georgia, from Mr. Tom Mak on 1/13/86.” The check was cashed by Walter resulting, the court concluded, in an accord and satisfaction.

The trial court further found that many of the 428 delivered trees were damaged and not merchantable; that the parties agreed a $1,000 deduction was appropriate based upon the condition of the trees; that the reasonable value of the trees delivered was $3,700; that N. Highland paid that amount to Walter. The court concluded that because there was an accord and satisfaction Walter could not recover on its complaint and N. Highland was precluded from any recovery on its counterclaim.

Walter’s enumerations of error are that the court erred in finding that: the trees did not meet the standards for quality and size as provided in the contract; a $1,000 reduction in price was appropriate and the reasonable value of the trees delivered was $3,700; Maxsenovitch had apparent and implied authority to settle accounts; Maxsenovitch agreed to accept $3,700 as full settlement of N. Highland’s account.

The trial court’s finding was not that the trees did not meet the standards provided in the contract, but instead that the trees were damaged and not merchantable.

In view of the testimony given by witnesses for N. Highland, a finding that $3,700 was a reasonable value for the trees delivered and constituted a fair settlement price was authorized.

“Accord and satisfaction occurs where the parties to an agreement, by a subsequent agreement, have satisfied the former agreement, and the latter agreement has been executed.” OCGA § 13-4-101. Since accord and satisfaction is itself a contract, Woodstock Rd. &c. Properties v. Lacy, 149 Ga. App. 593 (254 SE2d 910) (1979), it requires a meeting of the minds as to the subject matter embraced in the accord and satisfaction. Myers v. American Fin. System, 615 F2d 368 (11th Cir. 1980); Wallace v. Harrison, 166 Ga. App. 461 (304 SE2d 487) (1983); Chrietzberg v. Kristopher Woods, 162 Ga. App. 517 (292 SE2d 100) (1982).

Decided October 18, 1988.

Peter G. Williams, for appellant.

Kenneth M. Henson, Bruce A. Hagen, for appellee.

“[A]n agreement by a creditor to receive less than the amount of his debt cannot be pleaded as án accord and satisfaction unless it is actually executed by the payment of the money ... or some other new consideration.” OCGA § 13-4-103 (a). Further, a bona fide dispute or controversy as to the amount due must exist. OCGA § 13-4-103 (b) (1). (This is a statutory change of the law as pronounced by Rivers v. Cole Corp., 209 Ga. 406 (73 SE2d 196) (1952), which abrogated the effect of whether a claim or demand be disputed or undisputed, liquidated or unliquidated.)

If the debtor tenders a sum of money less than the amount claimed upon the condition, express or implied, that it satisfied the entire debt, and the creditor accepts the tender, an accord and satisfaction results. State Farm Fire &c. Co. v. Fordham, 148 Ga. App. 48, 52 (250 SE2d 843) (1978). Of course, the burden is on the proponent to prove accord and satisfaction. Fuller v. Squires, 242 Ga. 475 (249 SE2d 261) (1978); Clark &c. Corp. v. Refrigerated &c. Co., 148 Ga. App. 405, 407 (251 SE2d 321) (1978).

There was a dispute as to the amount owed. There was a tender of a check which was accepted and cashed. The attached voucher recited in part: “adjusted balance per telephone conversation from Macon, Ga., from Mr. Tom Mak on 1-13-86 — $3,700.” There was evidence that Maxsenovitch informed representatives of N. Highland that he had authority and negotiated with N. Highland in an effort to resolve the matter. He reiterated this in his first affidavit submitted to the court but later this was repudiated, leaving a question of credibility for the factfinder. The essential issue is not whether Maxsenovitch agreed to accept the check in full settlement but whether Walter with knowledge of the nature of the offer did so.

On summary judgment our previous decision ruled that the meaning of the language on the voucher, what Walter understood by it, and upon what basis were for a jury to decide. The trial judge performed the jury’s duties and his findings will not be disturbed when there is any evidence to sustain them. L.M. Wiley, Parish & Co. v. Kelsey, 13 Ga. 223 (1853). See Scott v. Imperial Hotel Co., 75 Ga. App. 91, 95 (1 & 2) (42 SE2d 179) (1947); Fuller, supra at 478 (3).

Judgment affirmed.

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


author: Benham, Judge.

text:
    77084.
    ARMOUR v. THE STATE.
    (374 SE2d 794)
   Benham, Judge.

In this appeal from appellant’s conviction for sale of marijuana, the sole enumeration of error is that the trial court abused its discretion by permitting voir dire questions concerning prospective jurors’ acquaintance with persons whom appellant’s counsel describes as “well-known local convicted or suspected drug dealers.” The record shows that the prosecuting attorney asked prospective jurors whether they knew certain named persons. Defense counsel objected, asserting that the jurors might make inappropriate associations from the naming of those names. Noting that it did not know why the State wanted to ask about the named persons, the trial court declined to limit the questioning. Defense counsel then stated in the presence of the jury that the persons named were “known criminals.” Appellant now contends that he was unfairly prejudiced by the questioning.

Trial courts are vested with the “broadest of discretion” in controlling voir dire and that discretion will not be disturbed unless manifestly abused. White v. State, 230 Ga. 327 (5a) (196 SE2d 849) (1973). The question here, then, is whether that discretion was exercised and, if so, whether it was abused.

That the trial court exercised discretion in permitting the questioning is shown by the fact that when the prosecuting attorney named a well-known television evangelist and his wife, the trial court admonished him to stick to relevant names, by which, we take it, he meant names of persons who could be within the acquaintance of the prospective jurors. The question remains whether the trial court’s discretion was abused.

Considering the approach taken by the prosecuting attorney, asking about acquaintance with named persons but making no characterizations about those persons, we find no abuse of discretion. Until defense counsel informed the prospective jurors that the names were those of criminals, there was nothing in the record to show that the jurors had the information necessary for them to make the associations which counsel professed to fear; i.e., there is nothing in the record to show that any of the jurors were aware that they were being asked about their acquaintance with criminals. Under those circumstances, we are of the opinion that any prejudice to appellant was self-induced.

That is not to say that prosecuting attorneys have an absolute right to question jurors in every criminal case about their acquaintance with anyone at all. “ ‘The single purpose of voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias or prior inclination.’ [Cit.] Counsel on voir dire ‘should confine his questions to those which may illustrate any prejudice of the juror against the accused or any interest of the juror in the cause.’ [Cits.]” Freeman v. State, 132 Ga. App. 615 (8) (208 SE2d 625) (1974). If defense counsel believes that the prosecuting attorney is going too far afield, as defense counsel in this case did, the proper procedure is to request that the purpose of the questioning be explained to the court outside the presence of prospective jurors. The trial court will then have the opportunity and the duty to determine, in its discretion, whether the questions being asked are within the scope of OCGA § 15-12-133, that is, whether their answers will “illustrate any interest of the juror in the case . . .” The approach taken in this case, defense counsel informing the court in the presence of the prospective jurors of his belief concerning the reason for the questions, deprives the court of the opportunity to make such a determination without creating the very prejudice sought to be avoided.

Decided October 18, 1988.

Charles R. Hunt, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

Under all the circumstances in this case, we find no abuse of discretion which would warrant a reversal of appellant’s conviction.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    77477.
    In the Interest of J. G.
    (374 SE2d 796)
   Deen, Presiding Judge.

In this appeal from the juvenile court’s adjudication that the appellant had committed the delinquent act of peeping Tom, OCGA § 16-11-61, the sole enumeration of error concerns the sufficiency of the evidence.

On April 30,1988, the appellant and a friend were driving around and stopped in front of the residence of a female high school classmate. Shortly after midnight, the classmate’s older brother heard whispering and giggling outside his bedroom window. When he looked out the window, he saw two boys running towards a pick-up truck parked in front of the house. He ran outside to the truck, in which he found the appellant sitting with the doors locked. The appellant’s friend was hiding behind a nearby house. The police were summoned, and the appellant and his friend were charged with a violation of OCGA § 16-11-61.

The appellant’s friend testified at the hearing and explained that he and the appellant had merely wanted to get their classmate to come to the window so that they could talk with her. He admitted that both he and the appellant looked through the window.

Decided October 18, 1988.

Jeffrey G. Giltey, for appellant.

Harry N. Gordon, District Attorney, Steve C. Jones, Assistant District Attorney, Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.

Under OCGA § 16-11-61 (b), “the term ‘peeping Tom’ means a person who peeps through windows or doors, or other like places, on or about the premises of another for the purpose of spying upon or invading the privacy of the persons spied upon and the doing of any other acts of a similar nature which invade the privacy of such persons.” The appellant contends that the evidence failed to show his specific intent to spy upon or invade the privacy of those persons spied upon. However, countering the appellant’s explanation of his innocent intention of conversing with his classmate was the evidence of his conduct, i.e., laughing or giggling outside the window where he looked into the house, fleeing to the vehicle, and trying to crank the truck when confronted by the person actually spied upon. This evidence excluded all reasonable hypotheses save that of guilt, OCGA § 24-4-6, and, viewed in the light most favorable to the adjudication, authorized the finding beyond a reasonable doubt that the appellant had violated the peeping Tom statute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley and Sognier, JJ., concur.