text:
    A01A1649.
    O’CONNELL v. CORA BETT THOMAS REALTY, INC.
    (563 SE2d 167)
   Ruffin, Judge.

Malcolm O’Connell leased the basement and first floor of an historic building in Savannah. Three days after O’Connell signed the lease, he was seriously injured when a portion of the ceiling collapsed, pinning him under the rubble. O’Connell sued Cora Bett Thomas Realty, Inc. (CBT), the management company, for negligence and breach of contract. CBT moved for summary judgment, which the trial court granted. As the trial court ruled correctly, we affirm.

On appeal from a grant of summary judgment, we conduct a de novo review, and we view the evidence and the inferences drawn from it in the light most favorable to the nonmoving party. A defendant demonstrates entitlement to summary judgment by showing that the record lacks evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case. The defendant does not need to affirmatively disprove the plaintiff’s case, but may prevail simply by pointing to the lack of evidence. If the defendant does so, the plaintiff cannot rest on his pleadings, but must point to specific evidence that gives rise to a triable issue of fact.

Viewed in this light, the record establishes that on July 30,1997, O’Connell signed a five-year lease with the property owner, Historic Investments of the South, Inc., for the commercial space, which was located in the basement and first floor of a three-story building. Although the lease designated CBT as the building’s property manager, CBT did not sign the lease.

The lease provided, in pertinent part, that the landlord and manager were responsible for “keeping] in good repair and maintaining] all structural components of the leased premises including foundation, roof and walls, including keeping same water tight.” The tenant, on the other hand, was responsible for “repairing] and maintaining] at its expense all interior, nonstructural portions of the building.” The lease further provided that the tenant had examined the property and agreed to accept it “as is,” with the following proviso: “[w]ithin 30 days after this lease agreement is signed . . .Landlord and Manager agree . . . [t]o repair leaking roof and gutters to make property water tight, to keep roof from leaking into Tenant’s space, and to maintain [the] water integrity of the repaired roof.”

The record demonstrates that all parties were aware that the roof leaked. Prior to signing the lease, O’Connell inspected the premises six times. During his inspections, O’Connell saw that, whenever it rained, water leaked all the way from the ceiling to the first floor and basement. O’Connell also noticed that a portion of the ceiling had either fallen in or been removed, exposing the joists. According to O’Connell, the ceiling consisted of three layers — the original ceiling of plaster and lath, a layer of gypsum board, and a layer of tongue and groove. O’Connell intended to renovate the space and contemplated removing the ceiling to fully expose the truss beams.

Although O’Connell signed the lease on July 30, his first rent payment was not due until December 1, 1997. The landlord agreed to the rent-free period to give O’Connell time to renovate the premises. On August 2, 1997 — three days after signing the lease — O’Connell was cleaning the interior of the building when the ceiling collapsed, breaking his neck.

O’Connell sued CBT, alleging that the company’s negligence in inspecting, maintaining, and/or repairing the premises caused his injury. O’Connell also alleged that CBT was liable for breach of contract based upon its failure to repair the premises, as required by the lease.

CBT moved for summary judgment. In its order, the trial court noted that “ ‘in Georgia, an agent who undertakes complete control and responsibility for management of a property owes the same duty as the owner would owe to third parties for injuries resulting from the agent’s negligence.’ ” The trial court then noted that there was no evidence regarding the degree of control CBT exercised over the property. Thus, the trial court concluded that CBT could not be held liable for negligently causing O’Connell’s injury. With respect to O’Connell’s breach of contract claim, the trial court concluded that, under the terms of the contract, O’Connell assumed responsibility for repair, which precluded recovery. Accordingly, the trial court granted CBT’s motion for summary judgment, and this appeal ensued.

1. In O’Connell’s first enumeration of error, he contends that the trial court erred in granting summary judgment because issues of fact remain regarding whether CBT had a duty to inspect the damage caused by the leaking roof. O’Connell cites several cases in which this Court held that an issue of fact existed regarding a landlord’s duty to inspect premises after the landlord received notice that the premises were in disrepair. What O’Connell fails to address, however, is that CBT, as the management company, could not be held liable to the same degree as a landlord absent competent evidence of record that CBT assumed total control over the premises.

In his reply brief, O’Connell argues that we should leave the issue of whether CBT assumed total control to the jury. We disagree with this argument for two reasons. First, the record belies O’Connell’s contention that CBT assumed total control over the property. It instead shows that CBT would report the need for structural repairs to the landlord, but that the landlord remained responsible for ensuring that repairs were made. Second, after a defendant pierces a plaintiff’s pleadings, this Court does not simply assume a jury issue exists. To do so would completely undermine the summary judgment framework. The rule remains that, when a defendant pierces the plaintiff’s allegations, it is incumbent upon the plaintiff to point to some evidence of record that creates an issue of fact. In its motion for summary judgment, CBT asserted that, under the contract, any duty owed to O’Connell was owed by the landlord rather than by CBT. Such assertion eviscerates O’Connell’s negligence claim against CBT.

Thus, absent some evidence that CBT owed O’Connell a duty, O’Connell’s claim of error must fail. In reviewing O’Connell’s complaint, the only duty to which he alludes is a general duty to inspect and repair the property — which is owed by the landlord. In responding to CBT’s motion for summary judgment, O’Connell argued that the management company owed him a duty, suggesting that CBT assumed total control over the property. As discussed above, however, this suggestion is belied by the record. Under these circumstances, O’Connell did not carry his burden of demonstrating that an issue of fact remains, and the trial court did not err in granting CBT’s motion for summary judgment.

Decided March 19, 2002.

Bouhan, Williams & Levy, Walter C. Hartridge, David B. Denni-son, for appellant.

Hunter, Maclean, Exley & Dunn, Christopher W. Phillips, for appellee.

2. In a separate enumeration of error, O’Connell contends that the trial court erred in concluding that the terms of the lease agreement exculpated CBT from a claim of negligence. We find no error.

Initially, we note that O’Connell’s argument is unclear. Although O’Connell asserts that the contract should not bar his negligence claim against CBT, his negligence claim fails for the reasons set forth in Division 1. He also seems to argue that CBT was bound by the lease to repair the premises. As CBT noted in its motion for summary judgment, however, it cannot be held liable for breaching a contract that it did not sign.

To establish a claim for breach of contract, O’Connell must prove mutual assent by all of the parties to the contract. Because the lease is for a term in excess of one year, it falls within the statute of frauds, which requires that the contract “be in writing and signed by the party to be charged therewith or some person lawfully authorized by him.” Here, it is undisputed that no one from CBT signed the lease. It follows that CBT was not a party to the contract. As a stranger to the contract, CBT may not be held liable for its breach.

Although the trial court did not base its ruling on this argument, a “grant of summary judgment will be affirmed if it is right for any reason.” Here, the trial court clearly rejected O’Connell’s breach of contract claim. As such rejection was nonetheless right, we affirm.

Judgment affirmed.

Johnson, P. J, and Ellington, J., concur.

       O’Connell signed the lease on behalf of a limited partnership, M. W. O’Connell, Ltd.

       O’Connell also sued Historic Investments of the South, Inc., the landlord, which is not a party to this appeal.

       See Jackson v. Ford, 252 Ga. App. 304 (1) (555 SE2d 143) (2001).

       See Traicoff v. Withers, 247 Ga. App. 428 (544 SE2d 177) (2000).

       See id.

       See id.

       Quoting from Total Equity Mgmt. Corp. v. Demps, 191 Ga. App. 21, 22 (1) (381 SE2d 51) (1989).

       Specifically, O’Connell cites Ween v. Saul, 88 Ga. App. 299, 302-303 (76 SE2d 525) (1953); Garner v. LaMarr, 88 Ga. App. 364, 365 (2) (76 SE2d 721) (1953); Canfield v. Howard, 109 Ga. App. 566 (2), (3) (136 SE2d 431) (1964); and Amberley Suite Hotel v. Soto, 214 Ga. App. 72 (1) (446 SE2d 778) (1994).

       See Ramey v. Pritchett, 90 Ga. App. 745, 751 (3) (34 SE2d 305) (1954).

       See Traicoff, supra.

       See Cope v. Enterprise Rent-A-Car, 250 Ga. App. 648, 649 (551 SE2d 841) (2001) (essential element of negligence claim is duty to protect others against unreasonable risk of harm).

       See OCGA § 44-7-14.

       See Broughton v. Johnson, 247 Ga. App. 819 (1) (545 SE2d 370) (2001).

       (Emphasis supplied.) OCGA § 13-5-30 (5). See also Digby’s, Inc. v. Emory Univ., 227 Ga. App. 176, 177-178 (2) (489 SE2d 81) (1997).

       Cf. Mansour Properties v. Reinhardt College, 252 Ga. App. 214, 216 (1) (555 SE2d 877) (2001) (stranger to contract accrues no rights thereunder).

        Dover v. City of Jackson, 246 Ga. App. 524, 526 (1) (541 SE2d 92) (2000).


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A01A1917.
    ALLSTATE INSURANCE COMPANY v. WALKER et al.
    (562 SE2d 267)
   Barnes, Judge.

Ricky and Tammy Walker sued Allstate Insurance Company, claiming that they were entitled to recover under their automobile insurance policy for the theft of their van and were entitled to bad faith penalties and attorney fees for Allstate’s failure to pay their claim. Allstate answered and after discovery moved for summary judgment, arguing that the Walkers failed to give notice of the loss “as soon as possible” as required by the policy; that their loss was not covered under their policy; and that it was not liable for penalties because 60 days had not passed between the Walkers’ demand for payment and their filing of suit. The trial court denied Allstate’s motion for summary judgment and granted a certificate of immediate review. We granted Allstate’s application for interlocutory appeal and reverse the denial of summary judgment to the insurance company because, as a matter of law, the Walkers failed to give notice of the loss “as soon as possible,” as required by their policy.

On appeal from the grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998).

Viewed in this light, the record shows that on June 2, 1998, Ricky and Tammy Walker traded in their 1993 GMC Safari van at Star Nissan as partial payment for a 1996 Pontiac Bonneville. Star Nissan was supposed to pay off approximately $11,000 owed on the van, and the Walkers borrowed almost $6,000 more to buy the Bonneville.

A couple of weeks later, the Walkers twice called the dealership to question why they had not received the paperwork to get the car tag. Mrs. Walker testified that by the end of June, she was getting suspicious because she could not get a tag, and then the bank called about their past-due payment for the van. Mrs. Walker went to the dealership, where she had a confrontation with the employees there. At that point, she said, she knew “something was bad wrong.” The Walkers hired a lawyer in June and filed a stolen vehicle report at the sheriff’s office in July 1998. They made only one payment on the Bonneville before leaving it with the lender on September 1, 1998; then they bought another car for which they were able to obtain a tag and title. Star Nissan never paid off the loan on their van. The dealership owner was indicted in October 1998 on forty counts of theft by taking and theft by deception, two of which involved this transaction. According to the Walkers’ lawyer, the owner subsequently pled nolo contendere and agreed to make restitution, although he had not yet done so.

The Walkers became dissatisfied with their lawyer, and in April 1999, they hired the lawyer now representing them regarding these transactions. On May 20, 1999, the lawyer sent a letter to Allstate, notifying them of the claim and requesting payment of $11,100 for the theft of the van. After the company took the Walkers’ statements, the Walkers sent another letter to Allstate on June 21, 1999, seeking a response to their claim. On August 11, 1999, the company orally denied the claim, and the Walkers filed suit on August 19, 1999. After answering the complaint, Allstate moved for summary judgment, arguing that the Walkers failed to give Allstate notice of the incident “as soon as possible,” as the policy required, that the incident was not a covered theft, and that it was not liable for bad faith penalties.

The trial court denied the motion, finding that Allstate was not entitled to summary judgment on the ground that the loss was not covered or that the notice was not timely. Regarding the notice provision, after outlining the facts as set out above, the court held: “The reporting requirements of the policy (p. 25) are to make a claim ‘as soon as possible,’ and report all theft losses promptly to the police. Under the facts of this case, and reasonableness issues being generally a question for the jury, the Court cannot say that the policy notice was untimely as a matter of law.”

1. Allstate argues that the trial court erred in denying its motion for summary judgment because as a matter of law the Walkers’ notice of the incident came too late. “[Questions [about] the adequacy of the notice and the merit of appellees’ claim of justification are ones of fact which must be resolved by a jury as they are not susceptible to being summarily adjudicated as a matter of law.” State Farm &c. Ins. Co. v. Sloan, 150 Ga. App. 464, 466 (2) (258 SE2d 146) (1979). The jury generally determines whether the excuse or justification was sufficient and whether the insured acted diligently in giving the notice, “according to the nature and circumstances of each individual case.” (Punctuation omitted.) Plantation Pipeline Co. v. Royal Indem. Co., 245 Ga. App. 23, 25 (1) (537 SE2d 165) (2000). An unexcused significant delay in notifying an insurer about an incident or lawsuit, however, may be unreasonable as a matter of law. Id.; KHD Deutz &c. Corp. v. Utica Mut. Ins. Co., 220 Ga. App. 194, 195 (1) (469 SE2d 336) (1996).

The Walkers both testified that they did not notify the insurance company of the loss for almost a year because they did not know their policy might afford coverage for the theft. “There is no evidence, indeed, not even an assertion, that [the insured’s] ignorance of the terms of the subject insurance policy was due to any fraud or overreaching on the part of [the insurer] or its agents. The law requires more than just ignorance, or even misplaced confidence, to avoid the terms of a valid contract.” (Punctuation omitted.) Protective Ins. Co. v. Johnson, 256 Ga. 713, 714 (1) (352 SE2d 760) (1987). See also Townsend v. Nat. Union Fire Ins. Co., 196 Ga. App. 789 (397 SE2d 61) (1990) (notification over five years after incident untimely as matter of law where insured’s only excuse for delay was not knowing he was covered); Snow v. Atlanta Intl. Ins. Co., 182 Ga. App. 1 (354 SE2d 644) (1987) (ten-month delay in notification unexcused and unreasonable as matter of law where insured claimed he did not know which company carried insurance on tractor-trailer). Therefore, the trial court erred in denying Allstate’s motion for summary judgment on the ground that the Walkers did not give the company notice of loss as soon as possible following the incident.

Decided March 19, 2002.

Downey & Cleveland, Alan J. Gibson, for appellant.

T. Michael Flinn, for appellees.

2. In light of the foregoing, Allstate’s remaining enumerations of error are moot.

Judgment reversed.

Smith, P. J., and Phipps, J., concur.


author: Ruffin, Judge.

text:
    A01A2405.
    DI UNIFORM SERVICES, INC. v. UNITED WATER UNLIMITED ATLANTA, LLC.
    (562 SE2d 260)
   Ruffin, Judge.

DI Uniform Services, Inc. d/b/a DII Uniform Services (“DI Uniform”) and United Water Unlimited Atlanta, LLC (“United Water”) entered into a contract requiring DI Uniform to supply uniforms for United Water workers. After United Water terminated the agreement, DI Uniform sued, alleging that United Water breached the contract. Following trial, a jury found in favor of United Water. DI Uniform appeals, challenging the sufficiency of the evidence, the court’s refusal to give certain jury instructions, and its rulings on evi-dentiary matters. For reasons that follow, we affirm.

1. In two enumerations of error, DI Uniform asserts that there was insufficient evidence that United Water properly terminated the contract. In the first enumeration, DI Uniform merely asserts that “[t]he trial court erred by entering judgment on the jury’s verdict” and argues that United Water improperly terminated the contract. DI Uniform claims that it preserved this error for review by filing its notice of appeal. In the other enumeration, DI Uniform asserts that the trial court erred in denying its earlier motion for summary judgment, in which it raised the same argument.

The first enumeration of error is waived. DI Uniform has not shown that it ever raised this argument in a motion for directed verdict at trial and accordingly cannot challenge the court’s judgment on this ground on appeal.

The waiver is without consequence, however, because we must also determine whether the trial court erred in denying DI Uniform’s motion for summary judgment. In making this inquiry, we are not limited to the evidence presented at the time DI Uniform moved for summary judgment, but instead consider all the evidence presented to the jury. And, if the evidence presented authorized the verdict, “the prior order overruling the motion for summary judgment will be affirmed as constituting, at most, harmless error.” We conduct this review under the “any evidence” standard and review the proof in a light most favorable to support the verdict.

Viewed in this manner, the evidence shows that, in September 1998, United Water was bidding for Atlanta’s water contract and selected DI Uniform to supply and launder uniforms for its workers. At that time, United Water’s Gregory Wilson, who was in charge of vendor support and contract negotiations, met with two representatives from DI Uniform, Moses Adedire and Cindy Williams. Wilson informed Adedire and Williams that, if Atlanta accepted United Water’s bid, it would take over operations on January 1, 1999, and wanted all of its employees in uniform at that time. According to Wilson, Adedire and Williams assured Wilson that “they had done uniforms before,” gave him a brochure listing the company’s uniform services, and guaranteed they could provide the service. In fact, DI Uniform had never before supplied or laundered uniforms.

In October 1998, United Water was awarded Atlanta’s water contract, and Wilson continued meeting with Adedire and Williams about the company’s uniform requirements. United Water required a total of 13,500 articles of clothing to dress 400 employees, and at each of these meetings, Wilson reminded DI Uniform about the importance of the January 1 start-up date. DI Uniform measured employees for uniforms from November 17 through 19. At a November 30 meeting with Adedire and Williams, Wilson granted Adedire’s request to move the required delivery date back to January 7, 1999, and, Wilson testified, Adedire said DI Uniform would deliver all the uniforms by that time.

On December 29,1998, DI Uniform and United Water executed a written contract formalizing their agreement for DI Uniform to supply and launder the uniforms. Under the contract, the uniforms remained the property of DI Uniform, and the company rented the garments to, and maintained them for, United Water. The written contract did not provide a delivery date, but merely stated that it “takes effect as of the date of signing and continues for sixty (60) months after the date of first installation.” The contract also contained a termination clause providing:

Any complaints about the quality of service which have not been taken care of in the normal course of business must be sent by registered letter to [DI Uniform’s] General Manager. If [DI Uniform] then fails to resolve any material complaint in a reasonable period of time, [United Water] may terminate this agreement provided all rental items are paid for at the rates listed above as replacement value or returned to [DI Uniform] in good and usable condition.

On January 7, 1999, DI Uniform failed to deliver any uniforms. Wilson telephoned Adedire, who assured Wilson that he was working things out. On January 25, DI Uniform delivered 77 of the required 13,500 garments required under the contract. Wilson testified that, in addition to the obvious deficiency in the number of items delivered, there were several quality-related problems. Wilson called Adedire, told him what was wrong, and asked him to pick up the uniforms.

The following month, United Water continued its efforts to have DI Uniform deliver conforming uniforms. During a February 17 meeting, Wilson toured DI Uniform’s facilities, and, after seeing only two employees — one on a sewing machine and the other pressing patches on uniforms — he became concerned that DI Uniform was not “capable of supporting [a] large uniform contract.” Thus, on February 20, United Water, still without acceptable uniforms, hand-delivered to DI Uniform a letter complaining about incomplete delivery and other quality-related problems. The letter concluded: “[t]hese delays can not continue because our employees can no longer be without uniforms. All uniform issues must be resolved immediately. I would like a written response addressing these issues.”

Two days later, on February 22, 1998, DI Uniform delivered 418 articles of clothing, and on February 24, it delivered another 892 articles. According to Wilson, not only were these deliveries incomplete, many garments were the wrong size and some jackets were made of material that did not meet United Water’s requirements.

On February 25, Wilson again met with Adedire and Williams to discuss the deficiencies. At the meeting, Wilson complained about quality-related problems such as mis-sizing, inappropriate fabric, and supplying short-sleeve shirts where long-sleeve shirts were required, and about DI Uniform’s incomplete delivery. The parties agreed that Adedire and Williams would call the next day to provide a firm delivery date. According to Wilson, however, they failed to do so. Instead, on March 3, 1999, DI Uniform apparently delivered another 1,347 articles that had the same defects as the previous delivery. That same day, United Water sent DI Uniform a certified letter summarizing the deficiencies Wilson had raised during the February 25 meeting and complaining that DI Uniform had still not provided a firm delivery date. Although United Water’s letter required a response by the following day, Williams testified that DI Uniform did not receive the letter until March 10.

On March 10,1999, United Water sent DI Uniform a third letter outlining the deficiencies discussed in its previous letter and requesting a written response by March 12. On the afternoon of March 11, DI Uniform attempted to deliver more uniforms to United Water, but was unsuccessful because DI Uniform had not scheduled the delivery and United Water’s warehouse had already closed for the day. At a March 18 meeting between the parties, DI Uniform apparently complained about unpaid invoices, and the parties discussed a possible delivery date and another meeting date. Although meeting notes indicated that April 1 was mentioned as a delivery date, Wilson testified that DI Uniform never provided a firm completion date. Adedire testified that he left the March 18 meeting thinking that the only unresolved complaint was the undelivered uniforms.

Contrary to Adedire’s impressions, Wilson testified that, from United Water’s perspective, most of the problems remained unresolved. Accordingly, United Water decided to terminate the contract and notified DI Uniform of its decision at a March 29 meeting and in a letter sent to DI Uniform that same day. As part of its efforts to wind up the parties’ business affairs, United Water offered to buy any uniforms that met its specifications, or alternatively, to return the uniforms in its possession. It appears that DI Uniform was not receptive to either offer and, at the time of trial, the delivered uniforms remained in United Water’s warehouse.

On appeal, DI Uniform argues that the evidence showed United Water’s termination of the contract was improper for three reasons. First, United Water did not notify DI Uniform of any unresolved complaints in its registered letter. Second, United Water did not give DI Uniform a reasonable amount of time to cure the deficiencies. And third, United Water failed to pay for or return the delivered uniforms. These arguments give virtually no credence to the evidence discussed above.

In addressing these arguments, we must first dispel DI Uniform’s apparent belief that United Water had no right to terminate the contract for untimely delivery because no delivery date was stated in the written contract. The delivery deadline, however, could have been established by the parties’ verbal agreement. The law provides that

a distinct, collateral oral agreement that is consistent with and usually forms part of the consideration or inducement for the second written agreement may be established by parol evidence. The test to determine whether the oral agreement is one which the law will permit to be plead [ed] and proved is whether the oral agreement constitutes a part of the written contract or whether, instead, it is a separate and distinct oral contract which is not inconsistent with the written contract. If the latter, it admits of pleading and proof.

In this case, the written contract did not provide a delivery date or contain a merger clause that would preclude consideration of other, consistent oral agreements. Thus, the January 7, 1999 delivery date could have been established by a separate oral agreement. Because evidence of such oral agreement was presented to the jurors, they were not required to rely exclusively on the parties’ written contract.

As for United Water’s termination of the uniform contract, evidence showed that it repeatedly complained to DI Uniform about its untimely delivery and about numerous, quality-related deficiencies. Even if DI Uniform resolved the quality problems noted in United Water’s first, hand-delivered letter, DI Uniform had still not delivered most of the garments required under the agreement, a complaint raised in that letter. Furthermore, DI Uniform mischaracter-izes the second, certified letter, by arguing that it did not complain about deficiencies, but merely “summarize [d] . . . topics.” The summarized topics were statements about specific problems of uniform quality and incomplete delivery that Wilson raised at the February 25 meeting. Thus, the jury was authorized to find that both letters raised specific, unresolved complaints about the quality of DI Uniform’s service.

Evidence also showed that United Water gave DI Uniform a reasonable period of time to resolve the complaints. The issue of what constitutes a reasonable time was for the jury to resolve. Here, nineteen days elapsed between the time DI Uniform received United Water’s certified complaint letter and the time United Water terminated the agreement, and over one month had passed since the hand-delivered letter. Even if the jury ignored the hand-delivered letter, evidence showed that, after receiving the certified letter, DI Uniform still refused to provide a firm delivery date and made no reasonable attempts to deliver any uniforms. In addition, evidence showed that the industry standard for delivery is four to six weeks from the time employees are measured. In light of DI Uniform’s inaction, and considering that almost three months had passed since the uniforms were required to be delivered under the parties’ agreement and pursuant to industry standards, the jury could have found that DI Uniform failed to resolve United Water’s complaints in a reasonable period of time.

As for DI Uniform’s last argument — that United Water failed to pay for or return the uniforms — evidence showed that United Water attempted to do so, but its attempts were frustrated by DI Uniform’s rejection of both offers. Thus, DI Uniform cannot complain that United Water failed to perform this last condition of termination.

For these reasons, we conclude that, if the trial court erred in denying DI Uniform’s motion for summary judgment, the error was harmless.

2. DI Uniform also asserts that the trial court erred in refusing to instruct the jury that United Water was required to strictly comply with the contract’s termination clause. We disagree. In a similar case, Lager’s, LLC v. Palace Laundry, we recently addressed the issue of whether Lager’s complied with a termination clause in the parties’ linen services contract. We ruled that Lager’s actions must be reviewed for “substantial compliance, not strict compliance.” Although DI Uniform cites other cases in which we have required strict compliance to terminate an agreement, these cases concerned termination notices that resulted in forfeiture of real property rights under a lease or easement, or revocation of a surety. The cited cases are, therefore, distinguishable. Because the requested charge was an incorrect statement of the law, the trial court properly refused to give it to the jury.

3. DI Uniform similarly asserts that the trial court erred in refusing to instruct the jury that United Water’s termination of the contract without complying with the termination clause would be a breach of contract. The requested charge, however, did not inform the jury that only substantial compliance was required and was thus an incomplete statement of the law that was properly rejected. Furthermore, the trial court covered the same principle by instructing the jurors that, in the termination clause, the parties agreed on the circumstances and procedure under which United Water could terminate the contract, that DI Uniform alleged United Water breached the contract by improperly terminating it, and that the parties were required to substantially comply with the contract. The court was not required to charge the exact language requested.

4. DI Uniform next contends that the trial court erred in admitting hearsay into evidence. The purported hearsay concerned United Water’s post-termination attempt to either purchase the uniforms or return them to DI Uniform. United Water’s attorney, Kevin Rew, testified that he received no written response to his offer, on behalf of United Water, to purchase the uniforms. New then testified that he telephoned DI Uniform “to get an address so that United Water could deliver to [DI Uniform] the uniforms that it had in its possession. . . . [United Water] had given up on the prospect of purchasing the uniforms.” But according to Rew, the woman who answered the phone “didn’t identify herself, . . . treated [his] call with suspicion, and . . . was uncooperative. She would not give me the address.” DI Uniform objected to the testimony as hearsay, and the trial court overruled the objection. We find no error.

Decided March 19, 2002.

Smith, Currie & Hancock, George D. Wenick, James W. Copeland, for appellant.

Hearsay is defined as evidence that “does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” It is “a statement made out of court . . . offered in evidence to prove the truth of the matter stated in the out-of-court statement.” In this case, it is not clear that New testified about any statement that meets this definition. Though he talked about the phone call, his impressions, and what was not disclosed, New did not report what the unidentified receptionist said. We cannot discern how the credibility of this testimony required the presence of the declarant in court.

Furthermore, to the extent that New testified about what the unidentified speaker said, such testimony was clearly relevant to explain his client’s conduct in failing to return the uniforms, as required by the contract. OCGA § 24-3-2 renders such evidence admissible. When the conduct and motives of the actor are relevant to the issues on trial, then conversations and similar evidence known to the actor are admissible to explain his conduct. Because United Water’s performance and DI Uniform’s frustration of that performance were issues central to the controversy, Rew’s testimony about the unidentified speaker’s failure to cooperate was admissible as original evidence, and the trial court did not err in overruling DI Uniform’s objection.

5. DI Uniform acknowledges that its remaining enumerations of error are significant only if this matter is remanded. Because we have not found any error requiring remand, it is unnecessary to address the remaining asserted errors.

Judgment affirmed.

Johnson, P. J, and Ellington, J., concur.

Arnall, Golden & Gregory, Richard A. Mitchell, Charles T. Hud-dleston, Andrew B. Flake, for appellee.

       See generally OCGA § 9-11-50 (a), (b) (addressing motions for directed verdict and judgment notwithstanding the verdict); Dukes v. Ruth, 203 Ga. App. 246, 247 (2) (416 SE2d 565) (1992) (failing to move for directed verdict during trial results in waiver of issue on appeal); Fidelity &c. Ins. Co. of N.Y. v. Massey, 162 Ga. App. 249, 250 (1) (291 SE2d 97) (1982) (same).

       See Hill v. Willis, 224 Ga. 263, 265-267 (2) (161 SE2d 281) (1968), overruled in part on other grounds, Jebco Ventures v. City of Smyrna, 259 Ga. 599, 601 (1) (385 SE2d 397) (1989); see also Weir v. Kirby Constr. Co., 213 Ga. App. 832, 835-836 (4) (446 SE2d 186) (1994).

       See Hill, supra at 267 (2).

       Id.

       See H. J. Russell & Co. v. Jones, 250 Ga. App. 28-29 (550 SE2d 450) (2001).

       Although DI Uniform asserts in its brief that it was attempting “to make its final delivery,” it has not cited any evidence that supports this assertion. (Emphasis supplied.)

       We note that, in addressing this issue below, both parties and the trial court relied on general contract law to the exclusion of the Uniform Commercial Code’s provisions on leases. See OCGA § 11-2A-101 et seq. Although it is possible that the parties’ contract was subject to the UCC, inasmuch as this was not argued below or on appeal, we need not address it now.

       (Citations and punctuation omitted.) Lee v. White, 249 Ga. 99, 100-101 (1) (a) (286 SE2d 723) (1982).

       Cf. Great American Builders v. Howard, 207 Ga. App. 236, 240 (2) (427 SE2d 588) (1993) (merger clause precluded consideration of distinct oral agreement).

       See Lee, supra; Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 61-62 (2) (240 SE2d 572) (1977).

       See Dean v. Great Northern Nekoosa Corp., 251 Ga. 131, 132 (1) (303 SE2d 445) (1983); Solomon Refrigeration v. Osburn, 148 Ga. App. 772, 775 (3) (252 SE2d 686) (1979).

       See id.

       See Taliafaro, Inc. v. Rose, 220 Ga. App. 249, 250 (1) (469 SE2d 246) (1996); Feagin v. Feagin, 174 Ga. App. 474, 475 (330 SE2d 410) (1985).

       See Hill, supra at 267.

       247 Ga. App. 260, 261-262 (1) (543 SE2d 773) (2000).

       Id.

       See Woodall v. Pharr, 119 Ga. App. 692, 693 (1) (168 SE2d 645) (1969).

       See Preferred Real Estate Equities v. Housing Systems, 248 Ga. App. 745, 747 (548 SE2d 646) (2001).

       See Cosby v. A. M. Smyre Mfg. Co., 158 Ga. App. 587, 590-591 (3) (281 SE2d 332) (1981).

       See Roswell Properties v. Salle, 208 Ga. App. 202, 208 (10) (430 SE2d 404) (1993).

       See Heffernan v. Home Depot U.S.A., 226 Ga. App. 167, 168 (2) (486 SE2d 51) (1997).

       See Wadkins v. Smallwood, 243 Ga. App. 134, 140 (5) (b) (530 SE2d 498) (2000).

       OCGA § 24-3-1 (a).

       (Emphasis in original.) Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982).

       See id. at 866-867.

       See id. at 867; Harrison v. Jenkins, 235 Ga. App. 665, 670 (2) (510 SE2d 345) (1998).

       See id.


text:
    A01A2448, A01A2449.
    STEDMAN v. COTTON STATES INSURANCE COMPANY; and vice versa.
    (562 SE2d 256)
   Barnes, Judge.

These consolidated appeals arise from the trial court’s grant of two directed verdicts in this case involving insurance coverage for an automobile accident. Daniel Stedman was involved in an automobile accident and sought coverage under an insurance policy with Cotton States Insurance Company. Cotton States denied coverage to Stedman on the ground that his policy lapsed because he failed to pay the required premium. Stedman appeals the trial court’s grant of a directed verdict in favor of Cotton States on his claim for bad faith penalties and attorney fees in Case No. A01A2448. Cotton States appeals the trial court’s grant of Stedman’s motion for a directed verdict in his favor on the issue of coverage under the policy in Case No. A01A2449.

“A directed verdict is authorized only when there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” (Citation and punctuation omitted.) Carden v. Burckhalter, 214 Ga. App. 487, 488 (1) (b) (448 SE2d 251) (1994). On appeal, we conduct a de novo review and will uphold the grant of a directed verdict only if all the evidence demands it. Id.

‘Viewed in this light, the trial transcript shows that Stedman first purchased an automobile insurance policy from Cotton States in 1991 through an independent insurance agent, Jim Willis. On November 28, 1995, Stedman and his wife moved to Newark, Delaware, as a result of a job transfer.

On December 19, 1995, Stedman received a renewal declaration statement for the policy period December 16, 1995, to June 16, 1996, that stated in preprinted ink “THIS IS NOT A BILL” and “Declarations are provided at renewal for your information.” On December 29, 1995, Stedman received two “lapse notices” and a bill from Cotton States in three separate envelopes. Both of the lapse notices stated: “Payment has not been received and your coverage has lapsed. Send payment immediately. Payment received too late to reinstate will be refunded by company check. Please disregard if payment has already been made.” The bill stated that a minimum amount of $117 was “now due.” On January 2,1996, Stedman’s wife sent a payment totaling $171 to Cotton States. Cotton States deposited this check on January 15, 1996, and it cleared on January 19, 1996. At some point after January 15,1996, Cotton States refunded the $171 to Stedman.

On January 18, 1996, the day before the check cleared, Stedman was involved in a car accident, and his car was totaled. He pled no contest to a traffic citation, and the driver of the other car filed a lawsuit against him. According to Stedman, neither Cotton States nor his agent informed him before the accident that his insurance was cancelled and that it would not be renewed.

Stedman testified that, after the accident, he received a letter from Willis dated December 21,1995, stating, “We have been advised by Cotton States . . . that the coverage on the above policy has LAPSED DUE TO NONPAYMENT. If you have already paid this premium, please give us a call so that we can check with the Company and make sure they have received your payment.” Stedman also testified that he did not receive a bill for the December 16, 1995-June 16, 1996 policy period until after the accident. This bill stated that the payment should be mailed by December 11, 1995. A representative of Cotton States testified that they sent this bill to Stedman around November 27, 1995, and that it was returned to Cotton States by the U. S. Postal Service with the remark:

Return To Sender

No Forward Order On File

Unable to Forward

Return to Sender

On January 18, 1996, Mrs. Stedman called Willis’ agency and asked about the status of their coverage. Stedman called again on January 19, 1996, the day after his accident, and asked Willis about his insurance coverage. According to Willis, he told both of the Stedmans that coverage could not be provided to them in Delaware and that they needed to obtain insurance there. After obtaining this information, Stedman told Willis about his accident the day before.

On July 4, 1996, a Cotton States claims adjuster sent a letter to Stedman stating:

I recently received notice of a claim for an auto accident occurring on the date of loss above at your new home in the state of Delaware. Attached to this letter is a notice of cancellation effective due to nonpayment of premiums effective 12/16/95. Because your policy was not in force on the date of loss, we cannot extend coverage to you[ ] or anyone else for damages sustained at the time.

The notice of cancellation enclosed with the letter was addressed only to the lienholder, not Stedman, and was dated December 26, 1995.

Stedman subsequently filed a complaint for declaratory judgment and breach of contract to (1) resolve whether he was insured by the Cotton States policy at the time of the accident, and (2) obtain compensatory damages for Cotton States’ breach of contract. Sted-man later amended his complaint to assert a claim for bad faith and attorney fees under OCGA § 33-4-6.

After all evidence was introduced by both parties during the trial, the trial court granted the two directed verdicts at issue in this appeal. It granted Cotton States’ motion on the issue of bad faith penalties and attorney fees because Stedman failed to comply with the 60-day demand requirement of OCGA § 33-4-6. It granted Stedman’s motion for a directed verdict on coverage because the policy automatically renewed by operation of law before Stedman received any notices from Cotton States.

Case No. A01A2448

1. Stedman contends the trial court should not have directed a verdict on the issue of bad faith and attorney fees because the facts support the conclusion that (1) Cotton States did receive a demand for payment 60 days before the suit was filed, or (2) that Cotton States waived the demand requirement “because it did not intend to pay the claim in any event.”

OCGA § 33-4-6 (a) provides that an insurer owes a bad faith penalty and reasonable attorney fees “[i]n the event of a loss which is covered by a policy of insurance and the refusal of the insurer to pay the same within 60 days after a demand has been made by the holder of the policy and a finding has been made that such refusal was in bad faith. . . .” “As [this] section imposes a penalty, it is strictly construed ([cit.]); consequently, a proper demand for payment is essential for recovery. [Cit.]” Howell v. Southern Heritage Ins. Co., 214 Ga. App. 536, 537 (1) (448 SE2d 275) (1994). “It has long been the law that in order to serve as a bad faith demand, the demand must be made at a time when immediate payment is due. [Cits.]” Primerica Life Ins. Co. v. Humfleet, 217 Ga. App. 770, 772 (1) (458 SE2d 908) (1995). An insured cannot legally demand immediate payment “if the insurer has additional time left under the terms of the insurance policy in which to investigate or adjust the loss.” Dixie Constr. Products v. WMH, Inc., 179 Ga. App. 658 (1) (347 SE2d 303) (1986). In order to recover under OCGA § 33-4-6, the insured must submit evidence at trial showing compliance with the statute’s demand requirements. Nat. Cas. Co. v. Borochoff, 45 Ga. App. 745, 749 (3) (165 SE 905) (1932).

In this case, Stedman submitted no direct evidence that he demanded payment from Cotton States before filing suit. The evidence shows only that he notified the independent insurance agent of the claim the day after the accident, well before the time immediate payment could be due.

Stedman asserts that an earlier complaint he filed that was dismissed without prejudice before the complaint in this suit was filed should serve as a demand for payment from the insurance company. We disagree. The demand for payment is a prerequisite to filing suit against the insurer for bad faith, and we must strictly construe OCGA § 33-4-6. Thus, we cannot consider the filing of a lawsuit a proper demand for payment under OCGA § 33-4-6.

Stedman further contends that the jury could have inferred that Cotton States received a timely demand from Cotton States’ July 4, 1996 denial letter. Again, we disagree. The letter makes no reference to a demand for payment and simply acknowledges receiving a notice of claim, which is not the same as a demand for payment. See Guarantee Reserve Life Ins. Co. &c. v. Norris, 219 Ga. 573, 575 (134 SE2d 774) (1964) (a proof of loss standing alone is not a demand for payment).

Finally, we find no merit in Stedman’s waiver argument. An insurer’s mere denial of a claim does not waive the statutory demand for payment requirement in OCGA § 33-4-6. Kilpatrick Marine Piling v. Fireman’s Fund Ins. Co., 795 F2d 940, 947 (11th Cir. 1986).

Based on the above, we affirm the trial court’s grant of Cotton States’ motion for directed verdict on the issue of bad faith damages and attorney fees under OCGA § 33-4-6.

2. In the alternative, Stedman argues that the trial court should have awarded attorney fees under OCGA § 33-7-15 (b.l) which provides: “In the event the insurer denies coverage and it is determined by declaratory judgment or other civil process that there [was] in fact coverage, the insurer shall be liable to the insured for legal cost and attorney’s fees as may be awarded by the court.” A “recovery of attorney fees under OCGA § 33-7-15 (b.l) is limited to those situations involving non-cooperation by an insured with his insurance company. [Cit.]” Gibson v. Southern Gen. Ins. Co., 199 Ga. App. 776, 777 (2) (406 SE2d 121) (1991).

[A]lthough the language of subsection (b.l) does not expressly limit recovery of attorney fees only to situations of non-cooperation by the insured, placement of the subsection in the context of OCGA § 33-7-15 [, titled “Cooperation by insured with insurer in connection with defense of action or threatened action under policy,”] leads to the conclusion that the legislature did intend to so limit the application of the subsection.

Hall v. Canal Ins. Co., 195 Ga. App. 16, 17 (392 SE2d 340) (1990). Since this case was not predicated upon Stedman’s failure to cooperate with Cotton States, the trial court properly denied a recovery of attorney fees under OCGA § 33-7-15 (b.l).

Case No. A01A2449

Cotton States contends the trial court erred by granting Stedman’s motion for directed verdict on the issue of coverage and denying its motion for directed verdict on the same issue. Cotton States claims the policy lapsed for nonpayment on December 16, 1995, and thus no coverage existed for Stedman’s accident. According to Cotton States, it was not subject to the notice of nonrenewal requirements of OCGA § 33-24-45 (e) because it complied with the requirements of OCGA § 33-24-45 (f) (3). Subsection (e) specifies the particular method in which an insurer must notify an insured that it will not be renewing the insured’s policy. “If the insurer does not. . . comply with the notice requirements of OCGA § 33-24-45, then the insured’s policy is automatically renewed.” Ga. Mut. Ins. Co. v. Mims, 187 Ga. App. 783, 784 (2) (371 SE2d 426) (1988).

Subsection (f) of OCGA § 33-24-45 provides that subsection (e) “shall not apply” if one of three conditions is met. Cotton States claims it met the following statutory condition: “The insurer having manifested its willingness to renew by delivering a renewal policy, renewal certificate, or other evidence of renewal to the named insured or his representative or by offering to issue a renewal policy, certificate, or other evidence of renewal or having manifested such intention by any other means.” OCGA § 33-24-45 (f) (3).

The trial court granted Stedman’s directed verdict motion based on its conclusion that our interpretation of these Code provisions in Prudential Property &c. Ins. Co. v. Pritchett, 169 Ga. App. 564 (313 SE2d 706) (1984), governs the outcome of this case. After reviewing the undisputed facts before us and our opinion in Pritchett, we agree with the trial court.

In Pritchett, we held “[t]he insurer’s intent to renew cannot act to bar automatic renewal of the policy unless that intent to renew is communicated to and received by the insured prior to the expiration date of the policy.” (Emphasis supplied.) Id. at 566 (1). In this case, the uncontroverted evidence at trial shows that Stedman received the renewal declaration statement three days after the policy expired. Thus, the policy was automatically renewed under subsection (e). Because the uncontroverted facts show that Cotton States failed to subsequently fulfill the cancellation requirements of subsection (e) before the accident, the trial court correctly concluded that Cotton States must provide coverage to Stedman. Id. at 566-567.

Decided March 19, 2002.

Thomas C. Rowsey, for appellant.

Temple, Strickland & Binges, William A. Binges, John C. Patton, for appellee.

Judgments affirmed.

Smith, P. J., and Phipps, J., concur.

       She testified that she sent $171 instead of $117 because she “must have transposed the numbers.”


author: Blackburn, Chief Judge.

text:
    A02A0636.
    In the Interest of T. N., a child.
    (562 SE2d 374)
   Blackburn, Chief Judge.

Following his admission to committing aggravated child molestation, T. N., a minor male, appeals the juvenile court’s imposition of restrictive custody, contending that (1) the juvenile court’s order failed to adequately set forth findings of fact required by OCGA § 15-11-63 (c) and (2) the evidence did not support a sentence of restrictive custody. For the reasons set forth below, we affirm.

The record shows that, on the afternoon of March 1, 2001, T. N. followed a female classmate, J. O., into the girls’ restroom. T. N. approached the toilet stall J. O. was using and asked her to open the door so that he could watch her. When J. O. attempted to leave the stall, T. N. pushed her back inside, held her against her will, and forced her to perform oral sex. J. O. then fled the bathroom, and T. N. told a friend of his that he had forced J. O. to comply with his wishes.

In determining whether restrictive custody is required, OCGA § 15-11-63 (c) states that the court shall consider:

(1) The needs and best interests of the child; (2) The record and background of the child; (3) The nature and circumstances of the offense, including whether any injury involved was inflicted by the child or another participant; (4) The need for protection of the community; and (5) The age and physical condition of the victim.

In addition, where a child is adjudicated guilty of a designated felony,

the order of disposition . . . shall include a finding based on a preponderance of the evidence as to whether, for the purposes of this Code section, the child does or does not require restrictive custody under this Code section, in connection with which the court shall make specific written findings of fact as to each of the elements set forth in paragraphs (1) through (5) of subsection (c) of this Code section as related to the particular child.

OCGA § 15-11-63 (b).

Here, contrary to T. N.’s arguments, the trial court made the appropriate findings of fact. The order of disposition explicitly references each of the five paragraphs of OCGA § 15-11-63 (c) and sets forth findings of fact. In these findings, the trial court ruled that, although T. N. had no prior disciplinary problems, the egregiousness of his offense made restrictive custody necessary to promote the best interest of T. N. and to protect the community. The trial court emphasized that, in making this ruling, it considered all of the evidence before it. These findings, therefore, were made in accordance with OCGA § 15-11-63 (b).

And, although T. N. vociferously argues that the evidence did not support restrictive custody, the record nonetheless supports the trial court’s decision. In essence, T. N. attempts to challenge the sufficiency of the evidence against him in this case, although he actually conceded his guilt.

The sufficiency of the evidence supporting juvenile court adjudication where a juvenile is charged with an offense which for an adult would be a crime is reviewed under the standard set forth in Jackson v. Virginia. See also In the Interest of A. M. And, as always, an appellate court determines evidence sufficiency, but does not weigh the evidence or determine witness credibility. Jackson, supra.

In his brief, T. N. argues that the imposition of restrictive custody was inappropriate because the sexual encounter with J. O. was consensual and numerous parties testified that he was a well-behaved child. The trial court, however, specifically found that T. N. was not a credible witness and that his version of events was fabricated. And, because of the egregious nature of the crime, T. N. was a threat to the public. This Court must accept this finding of credibility and fact by the trial court, and T. N.’s attempt to relitigate will not be heard on appeal.

The trial court’s order of disposition was properly drafted in accordance with OCGA § 15-11-63 (b), and the evidence supported the imposition of restrictive custody.

Decided March 19, 2002.

Anthony J. Morgese, for appellant.

Tommy K. Floyd, District Attorney, Mary Evans-Battle, Assistant District Attorney, for appellee.

The issuance of this opinion renders T. N.’s motion for superse-deas bond pending the outcome of this appeal moot.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

       Only minutes before in the boys’ locker, T. N. had forcibly pulled J. O. behind a row of lockers and asked her to perform oral sex on him, and he had also fondled her breasts.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        In the Interest of A. M., 248 Ga. App. 241 (1) (545 SE2d 688) (2001).


author: Miller, Judge.

text:
    A01A2026.
    ESI, INC. OF TENNESSEE v. WESTPOINT STEVENS, INC.
    (562 SE2d 198)
   Miller, Judge.

WestPoint Stevens, Inc. hired ESI, Inc. of Tennessee, a general contractor, to install a new boiler facility at WestPoint’s plant in North Carolina. ESI hired H & L Electrical as a subcontractor for the electrical work on the project. Believing that the power to the area in which they were working was shut off, two H & L employees suffered electrical bums while handling conduit and electrical wires. The employees sued H & L Electrical, WestPoint, and others for their injuries. WestPoint settled the suit and paid $500,000 to the H & L employees, and WestPoint’s insurer, Travelers, paid the injured employees an additional $250,000. WestPoint then sued ESI under theories of contractual and common law indemnity. Both parties moved for summary judgment. The trial court denied ESI’s motion and granted WestPoint’s motion as to its claim for contractual indemnity. ESI appeals, challenging the trial court’s ruling.

Summary judgment is proper when there is no genuine issue of material fact and when the undisputed facts, viewed most favorably to the nonmoving party, warrant judgment as a matter of law.

The contract between ESI and WestPoint included a “Hold Harmless Agreement.” This indemnity clause provided that:

The Contractor shall be responsible from the time of signing the Contract, or from the time of the beginning of the first work, whichever shall be earlier, for all injuries or damage of any kind resulting from this work, to persons or property. The Contractor hereby assumes the obligation to save the Owner harmless and to indemnify the Owner from every expense, liability or payment arising out of or through injury to any person or persons, including death, or damage to property of any person or the City or the State in which the work is located, suffered through: 1. Any act or omission of the Contractor or any Subcontractor, or anyone directly or indirectly employed by or under the supervision of any of them; or 2. Arising out of any act or omission incident to the inspection or supervision by the Owner or his representative(s) of the work included in this Contract.

The contract farther required ESI to furnish to WestPoint “Workmen’s Compensation Insurance” and “Comprehensive Liability Insurance covering all operations and automobiles: ... 4. Including an endorsement incorporating the Hold Harmless Agreement assumed by the Contractor under the terms of this Contract.”

1. In granting WestPoint’s motion for summary judgment, the trial court found that OCGA § 13-8-2 (b) did not void the indemnification provision since the contract required ESI to procure liability insurance for its own benefit. ESI argues that the indemnification clause is void and unenforceable and that recovery is allowed only where the indemnitor has agreed to obtain insurance naming the indemnitee as an insured. ESI farther argues that in most construction contracts, the indemnitor procures liability insurance for itself, but that this should not suffice to sustain a cause of action on a void indemnity agreement.

ESI’s argument is misplaced. As we held in McAbee Constr. Co. v. Ga. Kraft Co., where an insurance clause shifts the risk of loss to the insurance company, regardless of which party is at fault, an indemnification provision is not made void by OCGA § 13-8-2 (b). In McAbee Constr., this Court construed the indemnity provision together with the clause requiring insurance coverage for the indemnity provision and held that the provisions show that the parties intended coverage by insurance. Therefore, OCGA § 13-8-2 (b) is inapplicable, and the court did not err in granting summary judgment to WestPoint on the issue of contractual indemnity. Moreover, we see no requirement that WestPoint be named as an insured in order to validate the indemnity provision as ESI argues.

2. In two enumerations, ESI argues that there were issues of fact as to common law indemnity. This issue, however, is moot in light of WestPoint’s right to contractual indemnity as explained in Division 1.

3. ESI argues that WestPoint failed to create an issue of fact regarding the contributory negligence of the injured plaintiffs in the underlying case. More specifically, ESI contends that because the injured workers were contributorily negligent (a complete bar to recovery in North Carolina), WestPoint is therefore barred from recovering any amount from ESI.

ESI’s argument is without merit, however, in light of the language of the hold harmless agreement. That provision requires ESI to indemnify WestPoint for all injuries suffered through any “act or omission of the Contractor or any Subcontractor, or anyone directly or indirectly employed by or under the supervision of any of them. . . .” This would include any failure on the part of the injured employees to use ordinary care for their own safety. Therefore, under the contract ESI was required to indemnify WestPoint regardless of whether the employees were contributorily negligent. Further, as explained in Division 1, the contract provided that coverage of ESI’s indemnity obligation would be through insurance.

4. ESI argues that WestPoint had no right to claim the $250,000 paid by WestPoint’s insurance company to the injured workers, as it was not the real party in interest. The trial court held that the fact that WestPoint’s insurance company paid $250,000 was immaterial to WestPoint’s right of recovery for contractual indemnity as Travelers would be a real party in interest only if WestPoint had assigned its claims to Travelers, which it did not do. The trial court was correct. Unless the insured assigns to the insurer any claims which it may have against third parties, the insured is the real party in interest and not the insurer. As we see no evidence that WestPoint assigned its claim to Travelers, this argument is without merit.

5. ESI contends that the court erred in denying its expedited motion for reconsideration because there were factual issues concerning whether the settlement of the underlying case was reasonable in amount and entered into in good faith. This issue was raised for the first time in ESI’s motion, and we can assume that the trial court denied this motion because the issue of the reasonableness of the settlement was not properly raised below. Inherent in a motion for reconsideration is a request to the court to reconsider an issue previously raised and/or ruled on. ESI, however, raised this argument for the first time in the expedited motion for reconsideration, which is improper to preserve this issue for appeal.

Decided February 22, 2002

Reconsideration denied March 20, 2002

Shapiro, Fussell, Wedge, Smotherman & Martin, Robert B. Wedge, for appellant.

Magill & Atkinson, David M. Atkinson, for appellee.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); see OCGA § 9-11-56 (c).

       “A covenant, promise, agreement, or understanding . . . relative to the construction, alteration, repair, or maintenance of a building structure, . . . purporting to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee, his agents or employees, or indemnitee is against public policy and is void and unenforceable. . . .”

       178 Ga. App. 496, 498 (343 SE2d 513) (1986).

       See Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27, 28 (1) (262 SE2d 794) (1980).

        McAbee Constr., supra, 178 Ga. App. at 498.

       See Bowen v. Waters, 170 Ga. App. 65, 66 (316 SE2d 497) (1984); see also Jones v. State Farm &c. Ins. Co., 228 Ga. App. 347, 349-350 (2) (491 SE2d 830) (1997).

       See Northgate Village Apts. v. Smith, 207 Ga. App. 479, 480-481 (1) (428 SE2d 381) (1993); cf. Crown Andersen, Inc. v. Ga. Gulf Corp., 251 Ga. App. 551, 553-554 (1) (b) (554 SE2d 518) (2001).


text:
    A01A2114.
    MATHIS v. ORKIN EXTERMINATING COMPANY, INC.
    (562 SE2d 213)
   Miller, Judge.

David Mathis appeals from the trial court’s injunction preventing Mathis from operating his pest control business in alleged violation of restrictive covenants that he signed when he was an Orkin Exterminating Company, Inc. employee. On appeal he contends that the trial court erred by (1) finding the nonsolicit and noncompete clauses in the employment agreement enforceable, (2) finding the anti-piracy clause in the employment agreement enforceable, and (3) failing to find that the employment agreement was a contract of adhesion. We discern no error and affirm.

The evidence reveals that Mathis worked as a Branch Account Manager for Orkin. His responsibilities consisted mostly of soliciting commercial accounts. Mathis’s employment agreement with Orkin contained the following restrictive covenants and anti-piracy clause in paragraph 5:

The Employee hereby expressly covenants and agrees that he/she will not, during the term of his/her employment and for a period of two (2) years immediately following termination of his/her employment by the Company within the territory stated in Paragraph 5 (c) below, for any reason whatsoever, directly or indirectly, for hirnself/herself or on behalf of, or in conjunction with, any other person, persons, company, partnership or corporation: (a) Call upon any customer or customers of the Company for the purpose of soliciting or selling any pest control, exterminating, fumigating or termite control service for the eradication or control of, without limitation, rats, mice, roaches, bugs, vermin, termites, beetles or other insects, rodents and birds, within the territory stated in Paragraph 5 (c). (b) Directly or indirectly, alone or in any capacity, solicit or in any manner attempt to solicit or induce any person or persons employed by the Company or any parent, subsidiary or affiliated corporation to leave such employment for purposes of engaging in such prohibited activities, (c) Engage in the pest control, exterminating, fumigating or termite control business in any capacity identical with or corresponding to the capacity or capacities in which employed by the Company, anywhere within the following jurisdictions or territories: THE COUNTIES OF BANKS, JACKSON, MADISON, ELBERT, CLARKE, BARROW, OCONEE, OGLETHORPE, GREENE, WILKES, LINCOLN, BARROW [sic], AND TALIAFERRO ALL IN THE STATE OF GEORGIA[ ] or within any jurisdiction or territory in which the Employee worked for the Company at any time during the six (6) calendar months preceding termination of employment, and identified in an employment agreement with the Company in effect during such six (6) month period.

While employed with Orkin, Mathis solicited business for Orkin from all of the counties listed in paragraph 5 (c).

Within two years after Mathis was terminated from Orkin, he started his own pest control business with a former colleague from Orkin and sold pest control services to former Orkin clients in the restricted territories outlined in paragraph 5 (c). Orkin sued Mathis, alleging breach of the employment agreement and seeking injunctive relief. After an evidentiary hearing, the court found the restrictive covenants and anti-piracy clause to be enforceable and granted an injunction to Orkin.

1. Mathis contends that the trial court erred by finding the non-solicit and noncompete clauses in the employment agreement to be enforceable. However, the Supreme Court of Georgia has already determined that strictly construed restrictive covenants in employment contracts with precisely the same language as paragraphs 5 (a) and (c) of the contract at issue in this case are valid and enforceable. Nunn v. Orkin Exterminating Co., 256 Ga. 558-559 (1) (a), (b) (350 SE2d 425) (1986). Accordingly, we hold that the provisions at issue here are similarly enforceable.

Mathis attempts to distinguish Nunn by arguing that the nonso-licitation clause here is unreasonable when applied to the facts of this case. Mathis argues that he worked only with commercial clients while at Orkin and that the clause would unreasonably prohibit him from soliciting both commercial and residential clients in his current business. We need not address the merits of this argument because the record belies the underlying premise. Mathis testified that he “mostly” worked with commercial clients while at Orkin, not that he worked exclusively with such clients. Since there is some evidence to support the conclusion that Mathis worked with both commercial and residential clients while at Orkin, we will not find error in the trial court’s issuing of an injunction where the trial court could have come to this same conclusion based on the evidence before it. See, e.g., Chambers v. Peach County, 268 Ga. 672, 673 (1) (492 SE2d 191) (1997) (trial court has broad discretion to grant or deny interlocutory injunction, which will not be disturbed on appeal absent manifest abuse or unless there was no evidence on which to base the ruling).

Decided March 6, 2002

Reconsideration denied March 20, 2002.

Silver & Archibald, Arthur S. Archibald, for appellant.

2. Mathis further argues that the anti-piracy clause in the employment agreement is unenforceable. We disagree.

We analyze anti-piracy clauses in employment agreements separately from nonsolicit clauses and noncompete clauses dealing with clients of the former employer. See Sunstates Refrigerated Svcs. v. Griffin, 215 Ga. App. 61, 62 (2) (449 SE2d 858) (1994). Since the clause at issue here is both reasonable in duration and is not vague or ambiguous in any way that would make it unenforceable (see id. at 64 (2)), we hold that the trial court did not err by finding the clause to be enforceable.

3. Mathis urges that the trial court erred by failing to find the employment agreement to be a contract of adhesion. However, contracts of adhesion are enforceable in Georgia, even though they are strictly construed against the drafter. Walton Elec. Membership Corp. v. Snyder, 226 Ga. App. 673, 678, n. 6 (487 SE2d 613) (1997). In light of our holdings in Divisions 1 and 2, in which we have already subjected the restrictive covenants and the anti-piracy clause in the employment contract to strict scrutiny (see, e.g., Northside Hosp. v. McCord, 245 Ga. App. 245, 247 (1) (537 SE2d 697) (2000) (restrictive covenants ancillary to employment contracts are subject to strict scrutiny)), we find no error here.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

Blasingame, Burch, Garrard, Bryant & Ashley, Andrew J. Hill III, Christopher G. Conley, for appellee.


author: Eldridge, Judge.

text:
    A02A0745.
    YARGUS v. SMITH et al.
    (562 SE2d 371)
   Eldridge, Judge.

Following a bench trial, John W. Yargus, defendant to this equitable action for specific performance, appeals from an adverse judgment by the superior court, finding that this was an appropriate case for specific performance and that the plaintiffs, Rebekah J. and Eugene F. Smith, were entitled to have title to the house at 3435 Canadian Way, Tucker, DeKalb County, conveyed to them pursuant to the real estate sales contract. The issue underlying the equity action is one of contract construction; therefore, it is proper for this Court to resolve this case based upon contract construction. See Lee v. Green Land Co., 272 Ga. 107 (527 SE2d 204) (2000).

The defendant contended that the closing was not held at the time provided under the terms of the contract and that the contract expired by the failure to close on such date. The plaintiffs contended that they unilaterally extended the time to close under the contract terms so that the defendant’s repair of the defects would be completed prior to closing as provided under the contract and so that the loan documents could be completely processed. Finding that there was no legal error or abuse of discretion, we affirm.

On March 29, 2000, Yargus and the Smiths entered into a purchase and sale agreement for Yargus’ home at 3435 Canadian Way. The written agreement called for a closing on April 20, 2000, which was typed, but under the terms of the agreement, the Smiths alone extended the closing to April 26, 2000, in order to obtain the loan documentation and because the inspection turned up defects in the house that required repairs prior to closing. Yargus, through his agent who had a power of attorney, failed and refused to close or to attend the closing on the new closing date, contending that the contract closing date had expired without the parties closing the transfer of the property. The Smiths sued for specific performance as well as damages.

The defendant contends that the trial court erred in entering a judgment of specific performance for the plaintiffs. We do not agree.

The printed standard sale-purchase contract, in a printed Section 4 of the agreement, contained a standard unilateral extension of the closing for seven days to remedy either (1) that the mortgage cannot close before the closing date or (2) that the seller fails to satisfy a valid title objection prior to the closing date; otherwise, the contract provided that all the parties in writing must agree to any extension of the closing date. To the extent that there existed an inability to obtain the completion of the loan documents prior to the April 20 closing date, such satisfied this condition for a unilateral extension.

The defendant contends that there was no evidence before the trial court that there was any delay in closing the loan and that the trial court allowed the unilateral extension based upon the need to repair. Therefore, we will construe the contract regarding'an extension for repair. In construing the extension provisions of the contract, we must look to the four corners of the document. Any apparent ambiguity should be resolved under the rules of contract construction without resorting to parol or other evidence, unless there is no other way to resolve the apparent ambiguity and conflict in the contract.

A standard printed Section 8 A provided for inspection by the purchaser and for repair obligation by the seller after the inspection report had been submitted. The contract was dated March 29, 2000. The contract provided that no later than April 8, 2000, ten days after the execution of the agreement, which was a typed number, plaintiffs had to submit to the defendant a copy of the inspection report and written amendment to the agreement requesting the repair of specific defects. Until April 21, 2000, thirteen days after the report and amendment, which was a typed number, defendant had to repair the defects or to make a counter repair proposal as a new term to the agreement, which was one day after the contract closing date. Neither party could terminate the agreement during such “Repair Resolution Period,” which ended on April 21, after the contract closing date. If the parties did not reach an agreement on what repairs had to be made by written agreement, then the plaintiffs had to either accept the defendant’s last counteroffer of repair or accept the property “as is,” and give notice of such decision within three days of the end of the repair period, which was no later than April 24 and which was four days after the contract closing date. If the plaintiffs failed to give timely notice, then the agreement was terminated on April 25. Critical to this action for specific performance was the standard printed term that “[a] 11 agreed-upon repairs and replacements shall be completed in a good workmanlike manner prior to closing” and that neither party could terminate the agreement during the “Repair Resolution Period.” All specific time periods as well as the closing date were typed into the printed contract except for the printed notice period.

Yargus refused to make repairs when the inspection was completed and made no counteroffer, because he felt that he had agreed to too low a purchase price and had a higher backup contract. The defendant ultimately paid for the repairs after the closing date had expired. Thus, at the end of the maximum “Repair Resolution Period,” plaintiffs had to give notice within three days that they took the house “as is,” which they did; such “Repair Resolution Period” and notice under the contract ended not on April 20 but on April 24. However, in determining the intent of the parties under the terms of the contract, such facts do not control, since it is not what they did after the execution of the contract but what they expressed as their intent under the contract that is determinative in construing the intent under the contract as to the extension provisions.

Thus, there existed apparent ambiguities and conflicts in the contract’s standard printed terms and the typed time periods, because the inspection and repair terms could not be completed prior to the typed contract closing date. The defendant’s real estate agent made errors in setting the closing date and setting out the various time periods so that they should expire prior to the closing date. However, if the maximum typed days under the contract to inspect, to negotiate repairs, and to give notice are computed, then the notice would occur on April 24, after the April 20 closing date. Therefore, the closing date of April 20 conflicts with the requirement that repairs be completed in a workmanlike fashion prior to closing, if that was the correct closing date.

Further, the contract does not allow either party to frustrate and terminate the contract prior to the end of the 13-day “Repair Resolution Period,” which did not end until after the original contract closing date. All time in days, including the closing date, were typed by the defendant’s agent, having equal dignity, and such computation by the drafter, defendant’s real estate agent, was flawed, with 22 days given to close after execution of the contract and with 26 days given to inspect, report, negotiate, repair, and give notice under the same contract. When an unskillfully drafted contract in computing time to perform the duties of the parties must be construed by the court to resolve any conflict in terms, it is the court’s duty to discover and to give effect to the intent of the parties in the contract. See generally Skinner v. Bearden, 77 Ga. App. 325, 326-327 (1) (48 SE2d 574) (1948).

If the defendant’s construction of the contract is followed, then he would be allowed to frustrate the purpose of the contract by delaying the completion of repairs that he could be obligated to make under a repair resolution amendment beyond the contract closing date, by refusing to agree to a contract extension, and could keep the earnest money, giving no effect to the printed repair provisions of the contract, which are entitled to equal effect to carry out the intent of the parties. Such is an unreasonable construction of the contract, which would defeat the contract on its face.

The unilaterally permitted extensions of the closing date for seven days under the contract are primarily for the protection of the plaintiffs and not the defendant, although the defendant could evoke them to allow the contract to be continued into effect until such problems are resolved either by the purchaser or by the seller. Likewise, the contract term, requiring the completion of all agreed-upon repairs prior to closing, is for the sole protection of the plaintiffs. Therefore, impliedly under the contract, there must be an automatic extension of the closing date until not only the agreed-upon repairs are completed, but also until such repairs are made in a workmanlike fashion; otherwise, the failure to repair would defeat the contract. To otherwise construe the contract would have repairs outside the closing date and allow the seller to frustrate the contract at his will by insisting upon the closing on the contract date.

A conflict in the express terms of a contract, when reasonably construed, creates an apparent ambiguity for the trial court to resolve as a matter of law, but the trial court must seek to resolve such apparent ambiguity without the intervention of a jury through the application of the rules of construction. Booker v. Hall, 248 Ga. App. 639, 642-643 (548 SE2d 391) (2001); Crooks v. Crim, 159 Ga. App. 745, 748 (285 SE2d 84) (1981). The entire contract must be considered in construing the intent of the parties. OCGA § 13-2-2 (4); Booker v. Hall, supra at 643; see also Hull v. Lewis, 180 Ga. 721, hn. 1 (180 SE 599) (1935). The cardinal rule of contract construction is to determine the intent of the parties as expressed within the four corners of the written agreement. OCGA § 13-2-2; Paul v. Paul, 235 Ga. 382, 384 (219 SE2d 736) (1975). The construction of the contract which allows the contract to be upheld is preferred. Bd. of Regents &c. of Ga. v. A. B. & E., Inc., 182 Ga. App. 671, 675 (357 SE2d 100) (1987); Burch v. Ragan, 92 Ga. App. 605, 607 (89 SE2d 541) (1955). All terms should be given effect if possible. OCGA § 13-2-2 (4); Bd. of Regents v. A. B. & E., Inc., supra at 675; Burch v. Ragan, supra at 607. Since the typed closing date conflicts with the typed inspection repair negotiation requirements,. and the repair negotiation period conflicts with the printed two unilateral extension provisions, then the printed two unilateral extension provisions must yield to the clear intent that closing could not take place until repairs are completed in a workmanlike fashion. OCGA § 13-2-2 (7); Quinlan v. Bell, 189 Ga. App. 8, 9 (374 SE2d 823) (1988); Hodsdon v. Whitworth, 153 Ga. App. 783, 786-787 (1) (266 SE2d 561) (1980); Capital Wall Paper Co. v. Callan Court Co., 38 Ga. App. 428 (1) (144 SE 135) (1928). Since the printed and typed contract was formulated by the defendant, then the agreement must be construed most strongly against him. L & B Constr. Co. v. Ragan Enterprises, 267 Ga. 809, 811 (482 SE2d 279) (1997); Simmerman v. Dept. of Transp., 167 Ga. App. 383, 386 (1) (307 SE2d 4) (1983). Further, while the contract contained a printed "time is of the essence” clause, the typed time periods to inspect and repair prior to closing are controlling and were not exceeded, because closing is conditioned upon the completion of the repair obligation as provided for in the contract. See generally Woodhull Corp. v. Saibaba Corp., 234 Ga. App. 707, 710-711 (1) (507 SE2d 493) (1998). Therefore, the trial court in seeking to determine the intent of the parties under the contract properly used the rules of construction and construed the contract to give all terms effect; the trial court found that, under the contract terms when the ambiguity was resolved, the plaintiffs could unilaterally in writing extend the closing date, just as in the case of loan delays or title defects.

Decided February 8, 2002

Reconsideration denied March 20, 2002

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Peter L. Lublin, Monica K. Gilroy, for appellant.

Weissman, Nowack, Curry & Wilco, Ned Blumenthal, John C. Pennington, Ernest M. Moran, for appellees.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.


text:
    A01A2061.
    MARSH v. THE STATE.
    (562 SE2d 269)
   Ruffin, Judge.

A Hall County jury found Recondo Marsh guilty of armed robbery and aggravated assault. Marsh appeals his conviction, asserting that the trial court erred in denying his motion “to prevent unlawful contact” between prospective jurors and various state and county officials. Marsh also contends that the trial court erred in instructing the jury. We find no error and, thus, affirm.

Viewed in a light favorable to the jury’s verdict, the record shows that, on March 17, 1996, Ausencio Villanueva was robbed at gunpoint by a foursome, which included Marsh, William Waller, Stacey Nix, and Jamie Bell. After the four relieved Villanueva of $300, his watch, two gold chains, and a beeper, Marsh shot him in the chest.

Marsh, Waller, Nix, and Bell were all charged with armed robbery, aggravated assault, and possessing a firearm during the commission of felonies. Waller pled guilty to armed robbery, and Bell pled guilty to robbery by force. At Marsh’s trial, Waller, Nix, and Bell testified against Marsh, and the jury found him guilty of armed robbery and aggravated assault, but acquitted him of possessing a firearm during the commission of felonies.

1. Prior to trial, Marsh filed a “Motion to Prohibit Unlawful Contact with Prospective Jurors.” Specifically, Marsh objected to the following three practices: (1) the sheriff greeting prospective jurors as they entered the jury assembly room; (2) the district attorney addressing the jury pool in the jury assembly room; and (3) the judge addressing the jury pool in the jury assembly room. According to Marsh, these practices undermined his right to a fair trial.

After Marsh requested that the jury panel be dismissed because of this “unlawful contact,” the trial court examined the jurors to determine whether any pre-trial contact had occurred and, if so, whether it would undermine their ability to serve as fair and impartial jurors. No juror responded affirmatively, and the trial court did not dismiss the jury. On appeal, Marsh contends that the trial court abused its discretion in failing to dismiss the jury panel.

We do not condone the conduct of the sheriff and district attorney, which might predispose jurors to favor the State. Although we are not troubled by the conduct of the trial judge — who is presumed to be impartial — such conduct, in concert with that of the sheriff and district attorney, might be construed as presenting a united front. Despite these concerns, we nonetheless conclude that the trial court did not abuse its discretion in refusing to dismiss the jury panel. Where, as here, the government officials do not say anything to jurors regarding a specific case, but only make general comments or questions, dismissal is not required.

2. In two enumerations of error, Marsh contends that the trial court erred in instructing the jury. According to Marsh, the trial court erred in charging the jury on aggravated assault in a manner not alleged in the indictment. Marsh also argues that the trial court erred in failing to instruct the jury that it could find him “not guilty of all charges.” We address each alleged error in turn.

(a) As this Court has recognized, “[i]t is reversible error to instruct the jury that an offense may be committed in more than one manner where only one manner is alleged in the indictment and no remedial instructions are given to limit the jury’s consideration to that particular manner.” Here, Marsh asserts that the trial court erred in charging the jury on two subsections of the simple assault statute, OCGA § 16-5-20, when the indictment alleged only one manner of aggravated assault. This assertion is meritless.

The indictment alleged that Marsh committed aggravated assault “with a .380 caliber handgun, a firearm and a deadly weapon and an object . . . which when used offensively against a person is likely to and actually did result in serious bodily injury.” The judge instructed the jury on this offense using language found in OCGA § 16-5-21, which criminalizes aggravated assault. In addition to this instruction, the trial court also charged the jury on simple assault, which the court correctly defined as “an attempt to commit a violent injury ... or an act which places another person in reasonable apprehension of immediately receiving a violent injury.”

Contrary to Marsh’s contention, the “assault” charge did not present an improper basis on which jurors could convict him of aggravated assault. Rather, assault is a lesser included offense of aggravated assault. And the trial court clearly stated that the additional jury charge was for “assault” rather than “aggravated assault.” Not surprisingly, Marsh has not cited any authority for his novel proposition that a jury charge on assault — which would allow jurors to convict him of a misdemeanor rather than a felony — harmed him. Under these circumstances, we find no error.

(b) Marsh contends that the trial court erred in failing to clarify for jurors that they could find him not guilty of all three charges against him. He cites Garrett v. State for the proposition that he was entitled to a jury charge that gave all of the verdict choices. We find no error.

Initially, we note that the jury acquitted Marsh of the third charge — possession of a firearm during the commission of felonies. Such acquittal undermines Marsh’s argument that the jury was somehow confused as to their verdict choices. Moreover, we note that the trial court fully informed the jury regarding their choices. The trial court read each count of the indictment separately and explained that jurors were free to “find the defendant not guilty of count 1 or count 2 or count 3 or any combination of those which you find to be proper.” Under these circumstances, the charge adequately informed the jury of their choices, and we find no error.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

Decided March 20, 2002.

H. Bradford Morris, Jr., for appellant,

Lydia J. Sartain, District Attorney, for appellee.

       The record does not indicate whether Nix pled guilty to any offense.

       See House v. State, 237 Ga. App. 504, 506-507 (2) (515 SE2d 652) (1999); Jones v. State, 240 Ga. App. 723 (1) (524 SE2d 773) (1999).

       Id.

       (Punctuation omitted.) Lyman v. State, 188 Ga. App. 790, 792 (2) (374 SE2d 563) (1988).

       See OCGA § 16-5-20 (a) (defining simple assault).

       See Cordis v. State, 236 Ga. App. 629, 630 (1) (513 SE2d 45) (1999) (“simple assault is necessarily a lesser included offense of aggravated assault”).

       Compare OCGA § 16-5-20 (b) (as a general rule, “a person who commits the offense of simple assault shall be guilty of a misdemeanor”) with OCGA § 16-5-21 (b) (“a person convicted of the offense of aggravated assault shall he punished by imprisonment for not less than one nor more than 20 years”).

       184 Ga. App. 593, 595 (5) (362 SE2d 150) (1987).

       See Smith v. State, 251 Ga. App. 452, 454 (2) (554 SE2d 596) (2001) (this Court will not simply presume that the jury was confused).

       See Sweat v. State, 203 Ga. App. 290, 292 (5) (416 SE2d 845) (1992).


text:
    A01A2104.
    BROWN v. THE STATE.
    (562 SE2d 513)
   Ruffin, Judge.

A Peach County jury found Leroy Brown guilty of selling cocaine. On appeal, Brown challenges the sufficiency of the evidence. Brown also asserts that the trial court erred in removing a juror during deliberations without permitting Brown to question that juror. Brown’s assertions lack merit, and we affirm.

1. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and we determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In so doing, “we do not weigh the evidence or determine the credibility of the witnesses. As long as there is some evidence, even though contradicted, to support each necessary element of the state’s case, the jury’s verdict will be upheld.”

So viewed, the evidence shows that on January 18, 2000, Deputy Sheriff Jeff Monroe was working as an undercover agent, “trying to make street level buys of crack cocaine.” Monroe drove to a house where he had purchased cocaine on previous occasions. A man walked out of the house and approached Monroe’s car. Monroe handed the man $50, and the man gave Monroe four pieces of crack cocaine.

Monroe immediately took the cocaine to his partner, Deputy Sheriff Cornelius Flowers. Monroe then gave Flowers “a description of who he purchased [the cocaine] from, [including] height, weight, skin complexion, mustache with a goatee.” The next day, Flowers went to the area where the sale took place to look for individuals matching that description. Flowers saw Brown, who Flowers testified was “the only person fitting that description.” Flowers then put together an array that included photos of Brown and four other men who generally matched the suspect’s description. A day and a half after Monroe purchased the cocaine, Flowers showed the array to Monroe, and Monroe identified Brown as the man who sold him the cocaine. At trial, Monroe again identified Brown as the man who sold him the cocaine. Based upon this evidence, the jury found Brown guilty of selling cocaine.

On appeal, Brown asserts that his conviction was not supported by the evidence. Specifically, Brown points to evidence that he was at his girlfriend’s house when the sale took place. Both Brown and his former girlfriend testified that Brown was at the girlfriend’s house at the time of the sale on January 18, 2000. In addition, Brown’s aunt, who lives across the street from where the sale took place, testified that she did not see her nephew in the neighborhood the day of the sale. Although Brown seems to suggest that the jury was required to believe this testimony, he is mistaken.

“The credibility of the witnesses and the weight to be given the evidence are the sole province of the jury.” Thus, the jury was authorized to reject the testimony presented by Brown, his aunt, and his former girlfriend in favor of the State’s evidence. It follows that this claim of error presents no basis for reversal.

2. In his second enumeration of error, Brown argues that the trial court erred in dismissing a juror. After the jury started deliberating, the foreman informed the trial court that one of the jurors had “a problem with undercover investigation by the police.” The trial court questioned the juror, who informed the court that he did not have a problem with undercover investigations but, for religious reasons, was unable to render a guilty verdict. The trial court then removed that juror, replacing him with an alternate. Brown objected to the removal of the juror and requested an opportunity to further question him. The trial court declined Brown’s request, stating that it had “already decided to take [the juror] off.”

“OCGA § 15-12-172 provides that [an] alternate juror may take the place of a juror who becomes ill or for other good or legal cause is shown to be incapacitated.” A trial court must exercise its discretion in determining whether the substitution of a juror is warranted. We will not overturn a trial court’s decision absent an abuse of that discretion. Here, the trial court dismissed the juror only after that juror stated that he could not render a guilty verdict due to his religious beliefs. And, as our Supreme Court has determined, it is not an abuse of discretion to dismiss a juror under these circumstances.

To the extent Brown argues that he had a right to rehabilitate the juror, we disagree. Once a trial court, in the exercise of its discretion, has questioned a juror and concluded that the juror is disqualified, “the defendant is not entitled to further questioning as a matter of right, although the trial court may allow it.”

Decided March 20, 2002.

Robert M. Bearden, Jr., for appellant.

Howard Z. Simms, District Attorney, Eugene Felton, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       See St. Romaine v. State, 251 Ga. App. 212, 214 (3) (554 SE2d 505) (2001).

       (Footnote omitted.) Id.

        Autry v. State, 230 Ga. App. 773, 774 (1) (498 SE2d 304) (1998).

       See Mulvey v. State, 250 Ga. App. 345, 346 (1) (551 SE2d 761) (2001).

        Perry v. State, 255 Ga. 490, 493 (5) (339 SE2d 922) (1986).

       See id.

       See Williams v. State, 272 Ga. 828, 830 (5) (537 SE2d 39) (2000).

       See id.

        Roberts v. State, 252 Ga. 227, 233 (7) (314 SE2d 83) (1984) (no right to rehabilitate during voir dire).