author: Blackburn, Judge.

text:
    A96A2365.
    PETTIS v. THE STATE.
    (479 SE2d 460)
   Blackburn, Judge.

Patrick Lamont Pettis appeals his conviction of armed robbery, raising the sufficiency of evidence and challenging several of the trial court’s evidentiary rulings. Because Pettis raises no reversible error, we affirm the conviction.

On January 4, 1994, Pettis and another young man walked into Little Caesar’s Pizza in Stockbridge around 8:20 p.m. The second man, wearing a brown jacket, ordered pizza while Pettis, in a black hat and black “White Sox” jacket, paced nervously. When the cashier opened the register, Pettis pulled a pistol, pointed it at her, and demanded money. After taking approximately $300 from the register, the men left the store. In court, the cashier identified Pettis as her assailant.

Pettis claimed he was nowhere in the vicinity of the pizza store that night, but was with his mother and brother. On cross-examination and in rebuttal, the State showed Pettis had given a different story to police when he was arrested. Although Pettis’ mother and brother supported his alibi, the prosecutor showed that both witnesses had criminal records. Other witnesses who had seen Pettis before and after the crime stated they did not know his whereabouts at the time of the robbery.

1. The evidence, viewed in a light most favorable to the verdict, supported the jury’s finding that Pettis committed this armed robbery beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Four of Pettis’ enumerations challenge the State’s introduction of evidence relating to his activities the night before the armed robbery. Pettis was charged with entering an automobile in the parking lot of Olympia Pizza the evening of January 3, 1994, but the trial court severed trial of that offense from trial of the armed robbery. However, the court did permit the State to introduce evidence related to the January 3, 1994, offense in the armed robbery trial. Evidence was introduced that the night before the robbery, Pettis was seen in the Olympia Pizza parking lot wearing a brown jacket similar to the one worn in the robbery by his cohort. Olympia is a short distance from Little Caesar’s. When spotted at Olympia Pizza, Pettis was accompanied by another man wearing a black Chicago White Sox jacket, and the two men left Olympia in an orange Volkswagen Beetle. The jury also heard that the same night, an Olympia Pizza employee found a pager in the parking lot. Pettis later claimed this was his lost pager, and he retrieved it from another business in the same shopping center as Olympia. When he was arrested, Pettis was driving an orange Volkswagen Beetle.

Considering the similarity in dress of Pettis and his companion the night of January 3, 1994, and the dress of the armed robbers, as well as the evidence of Pettis’ presence in the area of the armed robbery the night before it occurred, the trial court did not err in admitting this evidence to show the identity of the armed robber. “Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant. . . . Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors.” (Citations and punctuation omitted.) Moclaire v. State, 215 Ga. App. 360, 365 (7) (451 SE2d 68) (1994). See also Anderson v. State, 200 Ga. App. 29, 30 (3) (406 SE2d 791) (1991) (testimony material to show defendant’s clothing); King v. State, 195 Ga. App. 865 (3) (395 SE2d 1) (1990) (testimony relevant to show defendant’s presence at scene shortly before crime).

Pettis also claims this evidence impugned his character, as it allowed the jury to infer that he must have been doing something wrong at Olympia Pizza the night before the armed robbery. A review of the record, however, reveals no testimony linking Pettis’ activities of January 3, 1994, to any crime that evening. Even if the jury could infer from the testimony that Pettis had trouble with the law as a result of his activities in the Olympia Pizza parking lot, the testimony did not improperly place his character in evidence. This case is similar to Norman v. State, 212 Ga. App. 105, 106 (1) (441 SE2d 94) (1994), in which we found that similar testimony did not impugn the defendant’s character and further stated, “[mjoreover, even if the jury could infer from the [testimony] that defendant had a prior brush with the law, it did not improperly place his character in evidence.” See also Bennett v. State, 177 Ga. App. 643 (340 SE2d 273) (1986) (relevant evidence which minimally places character in evidence is admissible where relevance outweighs prejudice).

3. Pettis asserts error in the court’s instruction that his counsel cease objecting to evidence of his activities the night before the armed robbery. Although a trial court should allow a party to make sufficient objection to preserve the appellate record, Pettis does not show how this claimed error harmed him. See Gregg v. State, 216 Ga. App. 135, 137 (453 SE2d 499) (1995) (error and harm must be shown to warrant reversal of criminal conviction). In light of our holding in Division 2, we find no harmful error requiring reversal.

4. Pettis claims the court improperly allowed the State to ask a defense alibi witness to speculate as to Pettis’ activities at 8:30 p.m. the night of the armed robbery. The transcript shows the prosecutor was demonstrating that this witness did not know Pettis’ whereabouts at the time of the robbery. Even assuming the question was error, it is highly probable that it did not contribute to the verdict. See Pardo v. State, 215 Ga. App. 317 (2) (450 SE2d 440) (1994).

5. Pettis claims the trial court erred by allowing the State to question him on his whereabouts the night before the armed robbery. The trial court did not abuse its discretion in allowing the State to cross-examine Pettis on this issue, as it had previously ruled his whereabouts on that date to be relevant. See Division 2. Furthermore, Pettis attempted to attribute inconsistencies in his statements to his having “mixed up” dates, and the trial court properly allowed the State to examine him concerning his activities the week of the robbery and his inconsistent statements concerning those activities. See Nuckles v. State, 207 Ga. App. 63, 64 (2) (427 SE2d 54) (1993) (scope of cross-examination is within trial court’s discretion).

6. In Pettis’ remaining enumeration of error, he claims the trial court erred by allowing the State to imply he had tried to avoid the police because he knew a warrant had been issued for his arrest. Because Pettis made no objection to this evidence at trial, he has waived any error and may not raise this issue on appeal. See Far gason v. State, 266 Ga. 463, 464 (2) (467 SE2d 551) (1996); Mobley v. State, 218 Ga. App. 739, 741 (3) (463 SE2d 166) (1995).

Decided December 17, 1996

Edea M. Caldwell, for appellant.

Tommy K. Floyd, District Attorney, Kelley S. Powell, Assistant District Attorney, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A96A1615.
    MOSELEY et al. v. INTERFINANCIAL MANAGEMENT COMPANY et al. LEVENTHAL v. MOSELEY et al.
    A96A2435.
    (479 SE2d 427)
   Smith, Judge.

Anne Moséley and her two sons, Thomas C. Moseley, Jr., and Richard Clay Moseley, as co-executors under the will of Thomas H. Moseley, Sr., brought an action in the State Court of Cobb County against Ronald S. Leventhal on four notes (the “state court action”). Leventhal’s defenses to that action involved property subject to a security deed granted by Leventhal to the Moseleys as security for the notes. Summary judgment was granted in favor of the Moseleys in that action. Leventhal did not timely appeal, but later sought to set aside the judgment in the state court action. His motion to set aside the judgment was denied, and this Court eventually affirmed. Leventhal v. Moseley, 217 Ga. App. XXXI (1995) (unpublished). Leventhal then brought another motion in the state court seeking to vacate and set aside the judgment entered there for fraud, accident, or mistake. The trial court denied that motion as well.

During the pendency of the state court action but prior to the entry of judgment, Leventhal and two closely-held corporations he controlled, Interfinancial Management Company and Interfinancial Properties, Inc. (collectively “Leventhal”), brought suit in Cobb County Superior Court against the Moseleys. They sought reformation of the Moseleys’ security deed, cancellation of the notes, and a declaration that Leventhal was not indebted to the Moseleys. In that case, the superior court entered summary judgment in favor of Leventhal and against the Moseleys. The order granting summary judgment to Leventhal in that case was entered after the order entered in the state court action that granted summary judgment in favor of the Moseleys.

Case No. A96A1615, in which the Moseleys appeal from the summary judgment entered against them in the superior court action, was filed in the Supreme Court. It was transferred to this Court because its subject matter is not within the exclusive jurisdiction of the Supreme Court. Because the state court judgment and the superior court judgment appear to be contradictory, we granted Leventhal’s application to appeal from the denial of his motion in the state court action to vacate and set aside the judgment for fraud, accident, or mistake. His pro se appeal from that judgment is now before us in Case No. A96A2435. The subject matter of the two actions is identical. The two appeals are related, and we have therefore consolidated them for review.

These appeals arose from certain financial transactions. Beginning in 1985, Thomas H. Moseley, Sr., Thomas H. Moseley, Jr., and Leventhal had several business dealings, generally involving the sale of real property to Leventhal. Thomas H. Moseley, Sr. died in 1988. His two sons and his wife, Anne Moseley, were named executors of his estate. In settlement of a certain claim their decedent made against Leventhal, in March 1990, Leventhal executed the four promissory notes in issue in the total principal amount of $701,450. Three of the notes were payable to Anne Moseley; one was payable jointly to the three Moseleys as executors of the estate. The notes were secured by various tracts of land in Cobb County. Most of the security interests conveyed were of second or third priority; Leventhal was already indebted to others and the same properties also served as security for those other loans.

Eventually, all properties but one were foreclosed on by other creditors. Trust Company Bank held a first-in-priority security deed on that one remaining tract of land in Cobb County, which was known as Cumberland Creek, owned by Leventhal and/or his companies, Interfinancial Management Company and Interfinancial Properties. The same property was the subject of a second-in-priority security deed to Gene Jackson to secure a $50,000 loan. It was this property on which the Moseleys held a third-in-priority security deed as security for the four notes. The property consisted of approximately 20 lots in a residential subdivision.

In late 1991, Leventhal was in default on his loan from Trust Company Bank, which was preparing to foreclose on the Cumberland Creek property. To prevent the loss of his interest, Jackson purchased the property in December 1991, obtained a loan from Smyrna Bank & Trust, and paid off the note to Trust Company Bank. The Moseleys were not parties to this transaction. Smyrna Bank would not make the loan to Jackson unless it received a first priority security deed, however, and the Moseleys realized they were in danger of losing their security altogether if Trust Company foreclosed on the Cumberland Creek property. Anne Moseley therefore entered into an agreement with Jackson and Smyrna Bank whereby she agreed to subordinate her existing security deed to that of Smyrna Bank.

As part of the consideration for Anne Moseley’s agreement to subordinate her security deed, Jackson agreed (based upon a proposal suggested by Leventhal) that as soon as enough lots in Cumberland Creek were sold to retire his debt to Smyrna Bank, the net proceeds of all other lot sales would be divided between Jackson and the Moseleys, with Jackson receiving one-third of the proceeds and the Moseleys receiving two-thirds. The Moseleys agreed to release their security interest in each lot sold after the proceeds from that lot were disbursed in that manner. Leventhal defaulted in his payments under one of the four Moseley notes. Pursuant to cross-default provisions in the note, the Moseleys accelerated all four notes and demanded payment by Leventhal. When payment was not forthcoming, the Moseleys on January 29, 1992, filed the state court action against Leventhal on the notes. Leventhal admitted execution and failure to pay, but denied liability; he raised several affirmative defenses, including accord and satisfaction, novation, compromise, and estoppel.

Leventhal supported these defenses with novel arguments. He asserted that the provision in the modification and subordination agreement executed by Anne Moseley actually transferred two-thirds of the equity of redemption in the Cumberland Creek property to the Moseleys, and that transfer, combined with their subsequent receipt of two-thirds of the proceeds of the sale of individual lots (after the Smyrna Bank loan was paid off), constituted “constructive foreclosure.” Leventhal argued that the Moseleys’ suit on the notes, therefore, was really an improper attempt to collect a deficiency without confirming the foreclosure as required by OCGA § 44-14-161 (a).

The Moseleys moved for summary judgment in the state court action. At a hearing on the motion, the trial court informed the parties that he intended to grant summary judgment in favor of the Moseleys. An order was entered two months later, on October 28, 1992. Leventhal did not file a timely appeal from that order. Instead, two months later, claiming that neither he nor his counsel received notice of the entry of judgment in that action, he filed a motion to allow an out-of-time appeal or alternatively to set aside the judgment. The motion was denied in an order entered on April 15, 1993, in which the state court found that a copy of the order had been duly mailed by the court. Reconsideration was denied, and Leventhal appealed to this Court. As noted above, the direct appeal was dismissed, then reinstated by the Supreme Court, which found that the appeal involved OCGA § 9-11-60 (g) and was not subject to the discretionary appeal procedure. This Court affirmed the denial of the motion. Leventhal v. Moseley, supra (unpublished).

On July 12, 1995, Leventhal again moved to set aside the state court judgment and to stay its execution. His motion was denied on February 21, 1996. Meanwhile, the superior court action was proceeding. In that action, Leventhal raised the very same arguments that had been raised as defenses in the state court action. The Moseleys, in turn, asserted the defenses of res judicata and collateral estoppel. These defenses were rejected by the superior court, and summary judgment was granted to Leventhal in an order entered March 5, 1996.

We now affirm the state court’s denial of Leventhal’s motion to set aside and reverse the superior court’s grant of summary judgment to Leventhal.

1. The superior court’s order is replete with error. First and foremost is its purported vacation and setting aside of the order of the state court. OCGA § 9-11-60 clearly provides that only a judgment void on its face “may be attacked in any court by any person.” OCGA § 9-11-60 (a). Other judgments must be attacked by motion, and only in the court of rendition. OCGA § 9-11-60 (b). The state court order is not void on its face — in fact, it was affirmed by this Court — and the superior court lacked jurisdiction to vacate it or set it aside.

2. The superior court’s findings of fact are clearly erroneous. Leventhal did not own the Cumberland Creek property at the time the subordination agreement was signed and therefore had no standing to complain of its provisions or any arrangement the Moseleys made with Jackson for distributing the proceeds. Moreover, the record belies Leventhal’s insistence on designating the subordination agreement an “ownership” agreement of any kind.

3. Leventhal’s “constructive foreclosure” and “virtual deficiency” theories are unsupported in law. Georgia has not recognized the doctrine of “constructive foreclosure.” Further, the holder of a note secured by a deed to secure debt is not required to exercise the power of sale in the security deed to recover on the note; the holder has the option of suing on the note. Stewart v. Diehl, 219 Ga. App. 821, 822 (466 SE2d 913) (1996). That is precisely the course elected by the Moseleys, and it was perfectly right and proper.

4. No basis in law appears for reforming the subordination agreement or the Moseleys’ security deed. The superior court ruled that the subordination agreement somehow transformed the Moseleys’ security deed into a warranty deed making the Moseleys joint owners with Jackson of the Cumberland Creek property in fee simple. Reformation of title is a remedy used to correct an instrument so as to reflect the true intention of the parties. It is not to be used to make a new and different contract for the parties but must be used to establish the actual, original agreement. Deck v. Shields, 195 Ga. 697, 701-702 (25 SE2d 514) (1943). It was not the intention of the Moseleys to become owners of the property, and Leventhal does not suggest that it was.

Moreover, reformation is not available to a stranger to the deed. Volunteer State Life Ins. Co. v. Powell-White Co., 187 Ga. 705, 708 (3) (1 SE2d 662) (1939). Here, Leventhal was not a party to the subordination agreement. The Moseleys are strangers to the deed to Jackson, who was not a party to the security deed or to this lawsuit. The trial court had no authority to enter a judgment altering the title to Jackson’s property.

5. The trial court improperly entered its order nunc pro tunc to February 16, 1996. The order was actually signed on March 3, 1996 and entered on March 5, 1996. The obvious purpose of entering the judgment nunc pro tunc was to avoid the Moseleys’ argument that res judicata and collateral estoppel barred its entry because the state court had ruled otherwise on these same issues on February 21, 1996 when it denied Leventhal’s motion to set aside. This is not a proper use of a nunc pro tunc entry. The purpose of such an entry is to record some previously unrecorded action actually taken or judgment actually rendered. Kendall v. Peach State Machinery, 215 Ga. App. 633, 634 (2), n. 1 (451 SE2d 810) (1994). It may not be used to supply an order not yet made by the court. Id. Here, the superior court did not act until March 3, 1996. The nunc pro tunc entry was therefore improper.

6. Perhaps most importantly, although Leventhal’s arguments were not meritorious, even if they were, they were barred by the doctrines of res judicata and collateral estoppel. These arguments were considered and rejected in the state court action. They may not be raised again. OCGA § 9-12-40; Usher v. Johnson, 157 Ga. App. 420 (278 SE2d 70) (1981).

7. Remaining enumerations of error in both cases are moot and need not be addressed. The state court correctly denied Leventhal’s motion to set aside the judgment on the notes. The superior court erred in granting summary judgment in favor of Leventhal, setting aside the state court judgment, cancelling the fi. fa., entering a nunc pro tunc order, reforming title, and denying the Moseleys’ motion for summary judgment.

Decided December 3, 1996

Reconsideration denied December 18, 1996

Cobb State Court. Before Judge Adams (case no. A96A2435). Schreeder, Wheeler & Flint, David H. Flint, Timothy C. Batten, for Moseley et al.

Ronald S. Leventhal, pro se, and for Interfinancial Management Company et al.

Judgment affirmed in Case No. A96A2435. Judgment reversed in Case No. A96A1615.

Pope, P. J., and Andrews, J., concur.

       This Court originally dismissed Leventhal’s appeal of the motion to set aside because he failed to follow the discretionary appeal procedure. The Supreme Court reversed this Court’s dismissal, holding that since Leventhal’s motion was premised upon his insistence that he did not receive a copy of the summary judgment order from the state court, the motion was one for correction of a clerical error under OCGA § 9-11-60 (g) and thus not subject to the discretionary appeal procedure. Leventhal v. Moseley, 264 Ga. 891 (453 SE2d 455) (1995). The Supreme Court reinstated Leventhal’s appeal for decision on its merits by this Court, and the unpublished opinion in Case No. A94A0562 resulted, in which we affirmed the trial Court’s denial of Leventhal’s motion.

       Leventhal’s complaint also sought injunctive relief, but he never pursued such relief; it is not at issue here.


text:
    A96A1863, A96A1864.
    BONARD v. LOWE’S HOME CENTERS, INC.; and vice versa.
    (479 SE2d 784)
   Smith, Judge.

Kimberly Bonard brought suit against Lowe’s Home Centers, Inc., and others to recover damages for injuries she incurred in a five-car collision. She later amended her complaint to seek punitive damages from Lowe’s. Lowe’s moved for summary judgment or, alternatively, for partial summary judgment on the issue of punitive damages. The trial court denied Lowe’s motion for summary judgment but granted its motion for partial summary judgment as to punitive damages. In Case No. A96A1863, Bonard appeals from the trial court’s grant of partial summary judgment to Lowe’s; in Case No. A96A1864, Lowe’s cross-appeals from the denial of its motion for summary judgment.

The record reveals that Melissa and Philip Carl purchased a 4' x 8' pegboard at Lowe’s in Savannah. A Lowe’s employee, Jeffery Tourney, tied it to the top of the Carls’ van and they drove away. With Mrs. Carl driving, they exited the Lowe’s parking lot slowly and turned right onto Abercorn. Shortly after they did so, the pegboard snapped off the van. Mrs. Carl slowed the van and waited for traffic to pass. She then stopped the van in the right hand lane, while Mr. Carl exited the van and went back to retrieve the pegboard. The vehicle immediately behind the van, driven by Sandra Carter, was able to slow and stop in time. The third car in line, however, was not able to do so. That car, driven by Bonard’s husband, collided with the Carter car from the rear. Although the initial impact with the Carter vehicle was not severe, the Bonard car was then hit from the rear and collided with the Carter car again, injuring Mrs. Bonard. The last car also joined the pileup.

Bonard claimed that Lowe’s was liable for her injuries because it negligently secured the pegboard to the Carl van and the pegboard was ultimately responsible for causing the collision. Her claim for punitive damages against Lowe’s was based upon her allegation that Lowe’s knew or should have known the pegboard was composed of material that was unstable when exposed to wind pressure, so that its conduct in tying the board to the Carls’ vehicle despite this knowledge exhibited a conscious indifference to consequences. She claimed she was entitled to unlimited punitive damages under OCGA § 51-12-5.1 (f) because Lowe’s actions exhibited a specific intent to harm.

1. Punitive damages are authorized when clear and convincing evidence shows that the defendant’s conduct exhibits “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). If the defendant’s actions evince a specific intent to harm, unlimited punitive damages are authorized. OCGA § 51-12-5.1 (f). The trial court found that even construing the facts in favor of Bonard, Bonard had presented no evidence indicating that Tourney or Lowe’s was anything more than negligent. We agree, and we affirm the grant of partial summary judgment as to punitive damages.

Bonard is correct that a conflict exists between Tourney’s deposition testimony and that of the Carls. Tourney testified that he suggested placing the pegboard inside the van and tying down the hatch, but Mr. Carl insisted on having it tied to the roof. He testified that he told the Carls that it was Lowe’s policy that it would not be responsible once they left the parking lot and that the pegboard was constructed of very unstable material and was subject to wind pressure, so they should drive slowly. He asked the Carls repeatedly if the pegboard was satisfactorily tied, and he informed them that Lowe’s would deliver the pegboard. The Carls testified that it was Tourney who suggested tying the pegboard to the roof of the van. They testified that Tourney never told them Lowe’s had a policy that it was not responsible once their vehicle left the parking lot, that Lowe’s would deliver, that the material was unstable, or that they should drive slowly.

These conflicts are not material, however, because even taking the Carls’ testimony as true, no evidence exists that Lowe’s had a policy of disregarding consequences, as Bonard suggests. No evidence indicates anything other than possible negligence on the part of Tourney. We certainly do not agree with Bonard that .Tourney’s actions meet the standard for unlimited punitive damages set forth in Viau v. Fred Dean, Inc., 203 Ga. App. 801, 804-805 (4) (418 SE2d 604) (1992). In that case, even where it was established that the defendant’s employee intended to drink and drive, this Court held that he had no specific intent to cause harm. The trial court did not err in granting partial summary judgment to Lowe’s as to punitive damages.

Decided December 18, 1996.

Alton D. Kitchings, for appellant.

2. The trial court did err, however, in denying Lowe’s motion for summary judgment. To state a claim against Lowe’s, Bonard is required to show that Lowe’s negligence was the legal cause of her injuries, i.e., that Lowe’s negligence was the cause to which the law attributes her injury. She must show “a legally attributable causal connection between the defendant’s] conduct and the alleged injury. The inquiry is not whether the defendant's] conduct constituted a cause in fact of the injury, but rather whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery. In Georgia, questions of negligence and proximate cause are ordinarily reserved for the jury, but in plain and undisputed cases the court may make a determination as a matter of law. A cause which is merely incidental is not the proximate and responsible one. Where the evidence plainly and manifestly shows that the injury was caused by the intervening efficient act of a third person, the defendant cannot be held responsible for having produced the injury, and the question is then one of law for determination by the court, and not one of fact for the jury.” (Citations and punctuation omitted.) Baughcum v. Cecil Key Paving, 190 Ga. App. 21, 23 (2) (378 SE2d 151) (1989).

In this case, Bonard cannot show that Lowe’s conduct was the legal cause of her injuries. Even assuming Lowe’s employee was negligent in tying the pegboard atop the Carls’ van, that negligence was not the legal cause of her injuries. The actions of several other people intervened and were the cause of her injuries. These actions include Mrs. Carl’s stopping her van in the lane of traffic, Bonard’s husband’s failure to stop his own car in time, and the actions of the driver behind the Bonards in hitting her car from the rear and causing Bonard to hit her head against the windshield. None of these people even saw the pegboard. In fact, at the time of the collision, the pegboard had been retrieved by Mr. Carl. The trial court erred in denying Lowe’s motion for summary judgment.

Judgment affirmed in Case No. A96A1863. Judgment reversed in Case No. A96A1864.

Pope, P. J., and Andrews, J., concur.

Forbes & Bowman, Morton G. Forbes, Johnny A. Foster, for appellee.


author: Beasley, Chief Judge.

text:
    A96A2492.
    CARNES v. McNEAL.
    (479 SE2d 474)
   Beasley, Chief Judge.

Carnes filed a “complaint on an oral partnership agreement” against McNeal, seeking to recover monies Carnes paid into a corporate bank account. McNeal sought, and was granted, partial summary judgment on the ground that the incorporation of the partnership business terminated the partnership.

The following facts are uncontested. Carnes and McNeal entered into a partnership through which they operated a trucking business. After deciding to incorporate, they opened a corporate bank account and used it as their depository to conduct the business. Articles of incorporation were signed by McNeal, and the Georgia Secretary of State issued a certificate of incorporation. For the purpose of continuing business operations, Carnes later made three separate deposits into the corporate account totalling $36,300. Carnes and McNeal subsequently had a disagreement which caused the company to cease doing business, and each filed individual bankruptcy petitions. Carnes sued, claiming he is entitled to $18,150 as one-half of the total sum he deposited into the corporate account.

The trial court rejected this claim because, among other things, the partnership terminated as a matter of law upon the parties’ commencement of business under the corporate form. As authority, the court cited Baker v. Schneider, 210 Ga. 493 (80 SE2d 783) (1954), and various New York cases including Judelson v. Weintraub, 390 NYS2d 455 (A.D. 1977).

In 1984, Georgia adopted the Uniform Partnership Act. OCGA § 14-8-1 et seq. Various causes of dissolution of a partnership are set out in OCGA § 14-8-31 (a) (1) — (7). Under subsection (a) (2), dissolution is caused “[b]y the express will or withdrawal of any partner.” Prior Georgia law permitted dissolution by the express will of a partner only in a partnership at will and then only upon three months notice (former OCGA § 14-8-24 (Code Ann. § 75-106)), or with the consent of all other partners (former OCGA § 14-8-90 (Code Ann. § 75-107)). See OCGA § 14-8-31, Comment.

In Baker, supra, Baker filed a petition for an accounting in 1953 alleging that in 1941 he, Schneider, and Walsh entered into an oral partnership agreement pursuant to which they conducted a chemical business; in 1946, the business was incorporated; Baker was ill at the time and was not told of the incorporation until some time later; Baker contributed services and monies to the business both before and after its incorporation; and in 1952, Schneider refused to recognize him as having any interest in the corporate stock.

The Supreme Court held that “[t]he judgment of incorporation terminated the partnership and was notice to the plaintiff and all interested persons of its termination.” Baker, supra at 494 (2). The court concluded that the action for an accounting based on the parol contract of partnership, filed more than four years after the termination of the partnership, was barred by the statute of limitation in OCGA § 9-3-25 (Code Ann. § 3-706).

Courts in other states have held that incorporation of a partnership may terminate the partnership but does not do so automatically. See generally 59A AmJur2d, Partnership, § 841 (1987); Rowley on Partnerships, § 31.1 (1st ed. 1960). An intermediate appellate court held in Judelson v. Weintraub, supra at 456 (1), that where partners agree to conduct a partnership business through a corporation and put that agreement into effect, they adopt the corporate form, with the corporate shield extended over them to protect them against personal liability; they thereby cease to be partners and have only the rights, duties, and obligations of stockholders. On the other hand, Box v. Crowther, 473 P2d 417, 422 (3) (Wash. App. 1970), and Barker v. Smith & Barker Oil &c. Co., 294 SE2d 919, 924 (2) (W. Va. 1982), held that the mere incorporation of a partnership business without further action to transfer some or all of the partnership assets and business to the corporation will not terminate the existence of the partnership.

In this case, as in Baker and Judelson, the parties incorporated the partnership business and conducted that business under the corporate form. Baker supports the trial court’s holding that the partnership terminated upon the parties’ commencement of business under the corporate form. We hold that the court correctly concluded that the partnership agreement provides no basis for the recovery of monies Carnes paid into the corporate account.

The remaining issues are moot, and only a counterclaim remains pending.

Judgment affirmed.

Birdsong, P. J, and Senior Appellate Judge Harold R. Banke concur.

Decided December 18, 1996

Robert P. McFarland, for appellant.

Banks, Stubbs & Neville, John R. Neville, for appellee.

       When Baker was decided, private companies in Georgia were generally incorporated by order of the superior court granting an application for incorporation. See former Code Ann. §§ 22-201; 22-1801; 22-1803 (b). Georgia law now provides for incorporation through the Secretary of State’s filing articles of incorporation which have been delivered to the Secretary. See OCGA §§ 14-2-201; 14-2-203; 14-5-20.


author: Pope, Presiding Judge.

text:
    A96A0837.
    DYNASTY SAMPLE COMPANY et al. v. BELTRAN.
    (479 SE2d 773)
   Pope, Presiding Judge.

Rosendo Beltran was employed by Dynasty Sample Company. On January 12, 1994, while working for Dynasty, Beltran severed two of his fingers on a piece of machinery. Subsequently, he sought workers’ compensation benefits from Dynasty. Dynasty terminated Beltran’s employment on February 24, 1994, and denied his claim for weekly indemnity benefits after learning that Beltran had intentionally misrepresented the fact that he was an illegal alien by presenting false documents to Dynasty at the time he applied for employment. Although Dynasty admitted that it could not deny benefits to Beltran solely on the basis of his status as an illegal alien, Dynasty argued that it was entitled to deny the benefits because the contract it entered with Beltran was void or voidable based on Beltran’s misrepresentations.

Relying on Barge-Wagener Constr. Co. v. Morales, 263 Ga. 190 (429 SE2d 671) (1993), the administrative law judge determined that Beltran was entitled to weekly indemnity benefits, starting on the date he was injured and ending on the date of his termination, on equal protection grounds. The ALJ, however, denied Beltran any income benefits after the date of his termination, finding that Bel-' tran’s status as an illegal alien was not a justifiable reason for failing to return to otherwise available and suitable employment existing after the date of his termination. The Appellate Division of the Board of Workers’ Compensation adopted the ALJ’s findings and award. Beltran did not dispute the decision reached by the ALJ or Board, but Dynasty and its insurer appealed the decision to the superior court. The superior court determined that the ALJ and Board erred in relying on Barge-Wagener. We agree with that determination because Barge-Wagener dealt with a deceased claimant who was presumed to be a legal resident alien or citizen of the United States, and not an illegal alien. Moreover, we note that illegal aliens are clearly not a “suspect classification” for equal protection purposes. See Plyler v. Doe, 457 U S. 202 (102 SC 2382, 72 LE2d 786) (1982).

The superior court nevertheless concluded that Beltran should receive weekly indemnity benefits based on Ga. Elec. Co. v. Rycroft, 259 Ga. 155 (378 SE2d 111) (1989), because Dynasty had failed to demonstrate a causal relation between Beltran’s false representations and the injury he suffered. We granted Dynasty and its insurer’s application for discretionary appeal to consider whether Rycroft is applicable to the case at bar.

In Rycroft, the Georgia Supreme Court acknowledged that there were limitations to an employer’s ability to deny benefits under the Workers’ Compensation Act based on claims of fraudulent inducement in the creation of an employment contract. Therefore, the mere fact that under traditional principles of contract law an employment contract might be void or voidable based on misrepresentations made by the employee is not dispositive in the instant case. In Rycroft, the Supreme Court adopted a three-part test for determining when fraud in the inducement is sufficient to bar an employee’s claim for benefits. Although the three-factor test adopted in Rycroft dealt specifically with misrepresentations regarding an employee’s pre-existing physical condition, rather than the employee’s resident status, in the absence of any clear legislative direction on the issue to the contrary, we conclude that the test is equally applicable to all cases involving fraud in the inducement of a type not specifically addressed by the Workers’ Compensation Act. We reach this conclusion in part by noting that fraud of the type involved in Rycroft is even more egregious in relation to workers’ compensation than is fraud involving the resident status of an alien worker. Consequently, if fraud in the inducement of the type involved in Rycroft alone is not sufficient to necessitate the voiding of an employment contract, neither should fraud of the type involved in the case at bar.

Therefore, for purposes of determining an employee’s entitlement to indemnity benefits under the Workers’ Compensation Act, we hold that the employment contract between the employee and his employer will not be considered void or voidable for fraud in the inducement concerning matters not specifically addressed by the Workers’ Compensation Act, unless the employer can demonstrate: (1) that the employee knowingly and wilfully made a false representation at the time the employee applied for work; (2) that said false representation was relied on by the employer and was a substantial factor in its hiring decision; and (3) that there is a causal connection between the false representation and the injury for which the employee seeks benefits.

Decided December 5, 1996

Reconsideration denied December 19, 1996

Drew, Eckl & Farnham, Harold M. Bagley, Phillip C. Griffeth, for appellants.

Craig & Elrod, Gene F. Cantrell, John A. Moore, for appellee.

Although we realize that meeting each prong of the above-stated test in cases based on fraud in the inducement of the kind found here will be all but impossible, based on the above, application of the test is warranted.

Accordingly, we affirm the superior court’s application of the Rycroft test. Because Dynasty failed to meet the third prong of that test by showing a causal connection between Beltran’s misrepresentation and the injury he suffered, we also affirm the award of weekly indemnity benefits to Beltran for the period of January 12, 1994 to February 24, 1994.

Judgment affirmed.

Andrews and Smith, JJ., concur.

       The fact that traditional contract principles are not always applicable in determining whether a person is an “employee” for purposes of recovering workers’ compensation benefits is further evidenced by the definition of “employee” found in OCGA § 34-9-1 (2), which includes minors working under contracts that are illegal based on child labor laws, and thus traditionally would be void or voidable.

       Under the holding in Rycroft, before fraud in the inducement involving an employee’s pre-existing physical condition can serve to bar a claim for workers’ compensation benefits, the employer must demonstrate that: (1) the employee knowingly and wilfully made a false representation concerning a pre-existing physical condition; (2) that the employer relied on the false representation and that such reliance was a substantial factor in the hiring of the employee; and (3) that there was a causal connection between the false representation and the injury the employee suffered. 259 Ga. at 158, 160.


author: Blackburn, Judge. Beasley, Chief Judge, Smith, Judge,

text:
    A96A1123.
    LAROCQUE v. THE STATE.
    (479 SE2d 450)
   Blackburn, Judge.

Jerry Lee Larocque appeals his convictions of rape, false imprisonment, sexual battery, and battery.

1. Larocque contends the trial court erred by allowing the State to introduce testimony regarding purported threats and intimidation which put his character in issue.

Over Larocque’s objection, the State was allowed to cross-examine him concerning alleged acts of intimidation and violations of his bond. Larocque’s bond required that he stay a certain distance away from the victim’s home and place of work. During cross-examination, Larocque denied purchasing a beverage from a Golden Pantry near the victim’s home. However, a State witness testified that Larocque did make a purchase at that location. Larocque also denied going to the victim’s place of employment, as to which a State witness testified that he saw Larocque drive by the back of the victim’s place of employment. The State maintained, and the trial court agreed, that this evidence was admissible to show Larocque’s attempts to intimidate the victim. The State’s evidence, however, failed to show any intimidation by Larocque against the victim or any other witness.

“Evidence of an act by an accused, intended to obstruct justice or avoid punishment for the crime for which he or she is on trial, is admissible if the act constitutes an admission by conduct.” (Citation and punctuation omitted.) Riden v. State, 151 Ga. App. 654, 657 (261 SE2d 409) (1979). Therefore, we have previously held that evidence of a defendant’s threats against witnesses are admissible where such threats are properly linked to the defendant. See Conner v. State, 160 Ga. App. 202, 203 (286 SE2d 441) (1981) (evidence that defendant hired a “hitman” to kill accomplice and co-indictee who planned to testify against the defendant properly admitted); Payne v. State, 152 Ga. App. 471, 473 (263 SE2d 251) (1979) (evidence of defendant’s purported threats and actions against State witness admissible); Riden, supra (defendant’s properly authenticated threatening letters sent to victim admissible); Grindle v. State, 151 Ga. App. 255, 256 (259 SE2d 663) (1979) (evidence that defendant attempted to influence testimony of witness admissible); Smith v. State, 142 Ga. App. 1, 3-4 (234 SE2d 816) (1977) (defendant’s threats to witnesses regarding their testimony admissible).

The present case, however, does not involve evidence of threats or threatening conduct. The only evidence presented indicates that Larocque was seen at locations near the victim’s residence and place of employment. The victim did not testify that Larocque threatened her. Furthermore, the witnesses who testified that they saw Larocque did not indicate that he exhibited threatening or intimidating behavior. While such evidence might have been admissible in a bond revocation hearing, we find that it has no relevance to the present trial. Furthermore, its potential prejudicial effect on Larocque requires that his convictions be reversed. The jury could have inferred that Larocque’s conduct constituted a threat against the victim and was an admission of guilt. See Fields v. State, 260 Ga. 331, 333 (393 SE2d 252) (1990) (admission of threatening phone call to witness without evidence connecting calls to the defendant resulted in reversible error).

In Riden and similar cases cited supra, it is the evidence of an actual threat communicated to the witness or victim that allows the jury to find an admission by conduct. But as in Fields, the State’s evidence in this case never connected Larocque to any act which could be considered intimidation of the victim. The mere fact that he may have violated the conditions of his bond does not allow the jury to infer that his goal was to intimidate the victim. To do so allows the jury to engage in rank speculation.

2. The trial court properly excluded evidence of the victim’s past sexual relationship with Larocque, including their mutual participation in “rough sex.” OCGA § 24-2-3 (a) provides that evidence of the victim’s past sexual behavior shall not be admissible. The exception provided in OCGA § 24-2-3 (b) was not applicable to the present case as the trial court properly concluded that Larocque’s offer of proof did not support an inference that Larocque “could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution.” OCGA § 24-2-3 (b).

3. Larocque’s remaining enumeration of error is rendered moot as it will not recur upon any retrial of this matter.

Judgment reversed.

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

Beasley, Chief Judge,

dissenting.

I respectfully dissent because the admission of the evidence of which defendant complains did not constitute reversible error, as held in Division 1 of the majority.

1. Several witnesses testified they saw defendant near the victim’s residence and place of work prior to trial. Not all of this evidence was adequately objected to. When the district attorney first approached the subject of visits to the convenience store at a certain crossroads in Hall County near the victim’s residence, during cross-examination of defendant, defendant objected on the ground that it was not relevant to the particular incident for which he was on trial. In a bench conference the court asked the district attorney to connect it up, and the district attorney explained that defendant would get close to the victim’s residence just prior to a trial setting, nearly violating his bond condition that he stay away from her. The State’s theory was that this was an attempt to intimidate her with respect to the trial. That being a reasonable inference and the very reason it was made a condition of bond (so she would not be intimidated and harassed before trial), the court permitted the questions about the store visits to be asked.

Thus the relevancy objection to evidence of his visits to the nearby store was preserved.

Continuing at the bench conference, defendant asked the court if the State was required to have given defendant advance notice of these incidents, as “similar transactions.” The court responded that it did not think so. Defendant said “all right,” but the court liberally construed this as a second ground of objection and overruled it as well as the objection that it was not relevant. Defendant does not raise as enumeration of error the lack of notice ground of objection, nor is it mentioned in the argument in support of enumeration of error “C.”

In further cross-examination the defendant denied visiting the store, stating that to have done so could have violated the condition of his bond, as would visiting her work premises at a certain location. He admitted that he had no business in Hall County and said he would be in Hall County only if 1-85 traversed it on the route between Lawrenceville and Athens. He agreed that he was not to have any contact with the prosecutrix, his former girl friend, directly or indirectly, and that before this condition was placed on him he had attempted to call her from the jail the day after he was arrested. There was no objection to this nor to the cross-examination regarding his visit to a car rental business diagonally across the intersection from the Home Depot where the victim worked, at another time close to a trial setting. Defendant testified that he was there to rent a car for himself and his brother-in-law and had used his own white Ford Festiva. He admitted that he lived in Lawrenceville and this rental agency was in Stone Mountain.

He also denied slowly driving a white pickup truck on a service road behind a Home Depot at which the victim was working, two days before the car rental incident. He denied even knowing that the victim was at that location. The cross-examination about this was not objected to, nor was there objection to the subsequent testimony from the convenience store clerk and a Home Depot employee who both placed defendant at the locations in close proximity to the victim at the time defendant had denied his presence. The store clerk testified that defendant came to the convenience store five or six times within eleven days, about the same time each day, bought a certain soft drink, and was memorable because he was solemn and never looked her in the eye. The Home Depot employee had worked with defendant and testified that he recognized him out behind the store, driving a white Mazda truck five to ten mph.

On none of the many pages of the transcript cited by appellant in the recitation of this enumeration of error is there any objection other than the one described above involving the relevancy of the Hall County store visits. Yet these pages include not only testimony of defendant but also of the witnesses who saw defendant at the store near the victim’s residence and near the place she worked or she sometimes worked. Both the State and defendant examined these witnesses. The very fact that defendant now takes the position that it was a continuing objection and he did not have to object to each incident shows that he considered detrimental all evidence which could lead a jury to infer he tried to intimidate the victim before trial or get her to relent. We cannot ignore the history of their relationship and its nature at the time of the crimes after she had broken it off. The one ruling, on the relevancy objection to the cross-examination of defendant about his visiting a nearby store when he had no business in Hall County and was under bond to stay away from the victim, does not cover all the other evidence of sightings of defendant near the victim before trial. The judge need not divine what the evidence will be and assume that the defendant is objecting to all of it regardless of what it is. Defendant did not even request a continuing objection. Compare Funderburk v. State, 221 Ga. App. 438 (1) (471 SE2d 535) (1996); Hudson v. State, 163 Ga. App. 845, 847 (4) (295 SE2d 123) (1982); Barnes v. State, 163 Ga. App. 61 (1) (293 SE2d 717) (1982).

Appellant cannot enumerate as error the admission of evidence introduced without objection. Salem v. State, 228 Ga. 186, 187-188 (3) (184 SE2d 650) (1971). It is necessary to object at the time it is actually offered, or it is waived. Curtis v. State, 212 Ga. App. 237, 239 (4) (441 SE2d 776) (1994). Moreover, an objection different from that made below may not be claimed on appeal; appeal is limited to the ground advanced below. Nelson v. State, 210 Ga. App. 249 (2), 250 (435 SE2d 750) (1993); Price v. State, 204 Ga. App. 288 (1), 289 (419 SE2d 126) (1992); Norman v. State, 197 Ga. App. 333, 334 (2) (398 SE2d 395) (1990); Horan v. Pirkle, 197 Ga. App. 151, 153 (1) (397 SE2d 734) (1990); Hagger v. State, 179 Ga. App. 16 (2) (345 SE2d 118) (1986). Below, it was generally relevancy; now it is relevancy and that it put defendant’s character in issue. In Richardson v. State, 256 Ga. 746, 747 (4) (353 SE2d 342) (1987), the court stated that the objection at trial on relevancy grounds does not preserve an argument that the defendant’s character was impermissibly placed in issue.

On the merits, as quoted in the majority opinion, the rule is that “Evidence of an act by an accused, intended to obstruct justice or avoid punishment for the crime for which he or she is on trial, is admissible if the act constitutes an admission by conduct. [Cits.]” Smith v. State, 142 Ga. App. 1, 3-4 (4) (234 SE2d 816) (1977). “‘“Any statement or conduct of a person, indicating a consciousness of guilt, where such person is, at the time or thereafter, charged with or suspected of crime, is admissible against him upon his trial for committing it.”’ [Cits.]” Moon v. State, 154 Ga. App. 312, 315-316 (5) (268 SE2d 366) (1980).

Intimidation of a witness, particularly the prosecuting witness, is relevant because seeking to prevent the witness from testifying against the accused is an admission by conduct of commission of the crime. Fugitt v. State, 256 Ga. 292, 293-294 (1) (a) (348 SE2d 451) (1986); Ross v. State, 255 Ga. 1, 3 (2) (b) (334 SE2d 300) (1985); Conner v. State, 160 Ga. App. 202, 203 (4) (286 SE2d 441) (1981); Payne v. State, 152 Ga. App. 471, 473 (3) (263 SE2d 251) (1979); Riden v. State, 151 Ga. App. 654, 658 (1) (a) (261 SE2d 409) (1979); Smith, supra. A special condition of defendant’s bond, as he himself admitted, was to stay away from the victim and not contact her, so as to protect her from harassment. Considering the circumstances of the volatile relationship of the defendant and the victim and the emotional condition of defendant who had wished to resume it and who now certainly did not want to risk trial and punishment, overt threats would not be the only acts relevant to the issue of intimidation. Defendant was charged with brutalizing his former girl friend, and ominous presence could be as intimidating as an outright verbal threat.

In Fields v. State, 260 Ga. 331, 333 (4) (393 SE2d 252) (1990), the trial court’s allowance of testimony by a prosecution witness concerning a threat received from an unidentified telephone caller was held to be inadmissible hearsay and irrelevant because the State could not link it to defendant. The present objected-to evidence does not share the same defects. It was not hearsay, and it was linked to the victim by her relationship to defendant, their physical proximity particularly in the face of the prohibitions imposed on defendant’s whereabouts, and the timing of the trial settings.

Whether or not defendant actually visited the locations testified to, and what his intent was on those occasions, were jury questions. Whether these actions constituted attempts to intimidate the witness depended on the weight and credit which the jury accorded this evidence, but it was not irrelevant so as to require a new trial. As in Riden, supra at 658 (1) (a), “[t]he trial judge properly admitted the [evidence] for the jury’s consideration and determination.”

2. I concur in Division 2 and, with respect to the enumeration of error addressed in Division 3, find no reversible error. Appellant therein contends that the court erred in refusing a continuance on the day of trial after material was disclosed to defendant at trial pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

The conviction should be affirmed.

I am authorized to state that Judge Andrews and Judge Smith join in this dissent.

Smith, Judge,

dissenting.

I join in Judge Beasley’s dissent, and also write separately to point out that footnote 1 of the majority is an incomplete account of the colloquy between the trial court and defense counsel. Based upon that discussion, I cannot agree with the majority’s assertion that “[t]he single objection, therefore, adequately preserved for review the entire line of questioning.” The only evidence under discussion was Larocque’s repeated visits to a convenience store near the victim’s home. Defense counsel asserted that Larocque’s conduct was a “similar transaction” and that he should have been given notice of the State’s intent to present such evidence. The trial court’s verbatim response was: “I think intimidation, evidence of intimidation of a witness is relevant. I don’t think it would require notice but I will note your objection and overrule it.” The trial court was merely stating the basis for its ruling, which was confined to the defense objection to the testimony regarding the visits to the convenience store. It is also apparent that defense counsel made no continuing objection to this evidence, or to any additional evidence offered to show intimidation. Counsel’s only response to the judge’s ruling was, “Okay.”

Decided December 5, 1996

Reconsideration denied December 19, 1996

Chandler & Britt, Walter M. Britt, Gregory D. Jay, for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

The other, unobjected-to, evidence of intimidation was far more damaging to Larocque than the convenience store visits: Larocque admitted that he rented a car at an agency across the street from the victim’s workplace in Stone Mountain, although he lived in Lawrenceville; he was also seen and recognized by a former co-worker driving along a private service road in the rear of the victim’s workplace. All of this occurred in the context of a condition placed on Larocque’s bond that he keep away from the victim; moreover, evidence was presented that Larocque’s visits coincided with the appearances of his case on the trial calendar. As the other dissent observes, such conduct is clearly relevant to the issue of guilt or innocence. For these reasons, I respectfully dissent.

       Once the State delved into this area, Larocque’s attorney objected. At a bench conference, however, the trial judge noted but overruled his objection and stated he was going to allow the question at hand as well as other evidence of “intimidation of a witness.” The single objection, therefore, adequately preserved for review the entire line of questioning.


author: Johnson, Judge. Blackburn, Judge, McMurray, Presiding Judge,

text:
    A96A1133.
    SOUTHEAST TIMBERLANDS, INC. et al. v. HAISEAL TIMBER, INC.
    (479 SE2d 443)
   Johnson, Judge.

A jury returned a verdict in favor of Haiseal Timber, Inc., and against Southeast Timberlands, Inc., and Jewett Tucker, Southeast’s president (hereinafter collectively referred to as “Southeast”) after Southeast’s default under the terms of a promissory note, deed to secure debt and personal guaranty. Southeast appeals from the judgment entered on the verdict, arguing that the action was actually one for a deficiency judgment, which both parties agree would be barred because Haiseal failed to obtain judicial confirmation of the sale after foreclosing upon the secured property, and that Haiseal had relinquished its interest in one of the two parcels which was the subject of the lawsuit.

The pertinent facts are as follows: Southeast purchased real estate from Haiseal and executed a promissory note in Haiseal’s favor for part of the purchase price. The promissory note was secured by a deed to secure debt. The deed to secure debt, likewise, referenced the note. The security deed contained provisions regarding Southeast’s rights and duties as to the sale of timber from the secured land, including a clause which provided that Southeast had the right to a release of portions of the secured property upon paying Haiseal 80 percent of the proceeds gained from timber sales from the secured property. It further provided that proceeds from the timber would reduce the principal due on the note. Tucker personally guaranteed payment of the note.

Southeast subsequently entered into a lease agreement with Thompson Hardwoods, Inc., giving Thompson the right to harvest timber from a tract of the secured property. Thompson paid approximately one-half of the purchase price of the lease at closing and exe-. cuted a promissory note to Southeast for the balance, which was to be repaid from timber proceeds. The remainder was paid in full to Southeast. Southeast paid 80 percent of the money it received from Thompson at closing to Haiseal but did not pay Haiseal 80 percent of the proceeds it received from Thompson as the timber was harvested. Before the lease agreement between Thompson and Southeast closed, Haiseal executed and delivered a quitclaim deed to Southeast relinquishing any interest in the tract.

Southeast also contracted with S. M. Baxter Timber Company, which harvested timber on another tract of the secured property. According to Haiseal, Southeast paid less than 80 percent of the proceeds derived from the sale of timber to Baxter.

When Southeast failed to make its scheduled interest payments under the deed to secure debt, Haiseal foreclosed upon most of the property described by the deed. The Thompson tract was inadvertently omitted from the foreclosure notice and was not foreclosed upon. The price paid at foreclosure was insufficient to satisfy the indebtedness and resulted in a deficiency of approximately $350,000. Haiseal sought confirmation of the sale, but dismissed its petition without prejudice before the court issued a ruling. Haiseal then filed a complaint against Southeast and Tucker, only the first and third counts of which are relevant on appeal. Count 1 alleges that Southeast breached the covenant contained in the deed to secure debt to pay 80 percent of the timber sale proceeds to Haiseal. Count 3 alleges that Tucker was liable based on his personal guaranty. Southeast moved for summary judgment and a directed verdict on the basis that the action was for a deficiency judgment, which was prohibited because Haiseal failed to obtain judicial confirmation of the sale. The trial court rejected the argument and denied the motions. Southeast appeals from the verdict and judgment for Haiseal.

The parties agree that the critical issue is whether Haiseal is simply suing for breach of contract or is seeking a deficiency judgment, which it cannot do since Haiseal failed to confirm the sale. We hold that the action does seek a deficiency judgment as to the Baxter tract. Whether it seeks a deficiency judgment as to the Thompson tract is not as clear because that tract was not listed in the foreclosure notice and arguably was not foreclosed upon. In any event, Haiseal was not entitled to recover for unpaid timber proceeds from the Thompson tract because Haiseal relinquished its entire interest in the tract and its timber by quitclaim deed. Therefore, we reverse the judgment of the trial court.

“[OCGA § 44-14-161] prohibits an action to obtain a deficiency judgment with respect to real estate sold at a nonjudicial foreclosure sale unless, within 30 days after the sale, the person who instigated the foreclosure proceeding seeks confirmation of the sale by the superior court. . . .” Turner v. Commonwealth Mtg. Assurance Co., 207 Ga. App. 428, 429 (1) (428 SE2d 398) (1993). A deficiency judgment is “a judgment for that part of a debt secured by a mortgage not realized from a sale of the mortgaged property.” (Citation omitted.) Hill v. Moye, 221 Ga. App. 411, 412 (1) (471 SE2d 910) (1996).

The Baxter Tract

Regardless of the characterization given it by Haiseal, the action pending between Haiseal and Southeast as to the Baxter tract is a deficiency action. Haiseal filed this action only after the property Southeast pledged as security did not bring at the foreclosure sale the amount owed on the note.

Haiseal correctly argues that if Southeast’s obligation to pay timber proceeds is an obligation which is independent, unsecured and separate from its obligation under the note, this action is not barred. See Kennedy v. Trust Co. Bank &c., 160 Ga. App. 733, 734-735 (288 SE2d 87) (1981). For example, where there are two separate debts evidenced by two separate notes and secured by two separate security deeds, the failure to confirm foreclosure under one security deed does not bar a creditor from suing on the remaining independent, separate, unsecured obligation. See Baby Days v. Bank of Adairsville, 218 Ga. App. 752, 754 (2) (463 SE2d 171) (1995). Even if the obligations are related, where the notes involved are either secured by separate deeds to different properties or are not secured at all, suit on one note after foreclosure without confirmation on the other note is not prohibited. Ward v. Pembroke State Bank, 212 Ga. App. 322, 324 (441 SE2d 691) (1994). In this case, however, the obligation to share the proceeds was not independent, separate, or unsecured.

The promissory note signed by the parties expressly provided that it was secured by the deed to secure debt; the deed to secure debt provides that it was intended to secure the debt shown in the promissory note; the timber covenant which was allegedly breached is found in that security deed; a violation of the timber provision constitutes a default under the deed to secure debt; and a default under the security deed authorizes foreclosure on the property. Moreover, the timber sale proceeds were expressly intended to reduce the amount of the debt contemplated by the note and secured by the security deed. There was but one promissory note and one deed to secure debt, and the only obligation Southeast owed Haiseal was this note secured by the foreclosed property. See Hill v. Moye, supra.‘When the instrument sued upon is embraced by the previous foreclosure, it is a deficiency judgment.’ ” (Citations omitted; emphasis supplied.) Ward, supra at 324.

Were we to permit Haiseal to sue on the same note after foreclosure and without confirmation, we “would allow the creditor to avoid, without substantial justification, the very purpose of the confirmation statute; that being to protect debtors from deficiency judgments when their property is sold at foreclosure sale for less than its market value. [Cit.]” Id. Southeast’s promise to repay the debt to Haiseal and the security deed’s provision allowing Southeast to satisfy the debt by paying Haiseal a portion of the timber proceeds from the secured property are inextricably intertwined. See C. K. C. v. Free, 196 Ga. App. 280, 282-283 (2) (395 SE2d 666) (1990); see also Tufts v. Levin, 213 Ga. App. 35 (443 SE2d 681) (1994). A verdict in Southeast’s favor was demanded as a matter of law, and the trial court erred in denying its motion for directed verdict. See generally Alexie, Inc. v. Old South Bottle Shop Corp., 179 Ga. App. 190, 194 (5) (345 SE2d 875) (1986).

The Thompson Tract

Southeast contends that a directed verdict was authorized as to the Thompson tract for two reasons: (1) Haiseal relinquished any right to timber proceeds when it executed and delivered a quitclaim deed to the tract; and (2) the action was for a deficiency judgment even though the tract was omitted from the foreclosure notice; the two tracts could not properly be treated as separate parcels during or after foreclosure because the land was pledged for payment of the debt in its entirety and had to be sold as a whole. See Doyle v. Moultrie Banking Co., 163 Ga. 140, 142-143 (135 SE 501) (1926). We need not decide the latter issue, however, because it is clear that Haiseal no longer had any interest in the Thompson tract at the time it commenced this action.

Haiseal executed and delivered a quitclaim deed to Southeast which released all of its interest in the tract, relinquishing any claim, right or title to the premises or its appurtenances. Where a grantor of a quitclaim deed assigns all its right, title, interest, claim or demand in the tract of land conveyed, it is estopped from asserting any title to or interest in the property conveyed, acquired previously to the execution of the quitclaim deed. McDonald v. Dabney, 161 Ga. 711, 714 (9) (a) (132 SE 547) (1926). Haiseal argues that the quitclaim deed was ineffectual because the parties had a verbal agreement that delivery of the deed was conditioned upon the assignment of Thompson’s promissory note to Haiseal. The quitclaim deed, however, contains no conditions as to its delivery or validity. Further, it specifically indicates that Haiseal received valuable consideration before the deed was executed and delivered. A grantor cannot engraft upon a written quitclaim deed an oral contract which would impose an additional affirmative obligation upon the grantee. Dodson v. Phagan, 227 Ga. 480, 482 (181 SE2d 366) (1971). Similarly, parol evidence is not admissible to place conditions upon a quitclaim deed which is absolute on its face. Harden v. Orr, 219 Ga. 54, 55 (1) (131 SE2d 545) (1963). Inasmuch as the quitclaim deed passed title to the parcel and its appurtenances to Southeast, Haiseal’s interest therein was extinguished. See generally McDonald, supra. There is no conflict in the evidence on the material issue of the terms of the quitclaim deed, regardless of any testimony from witnesses purporting to give their understanding of the deed and the existence of any conditions thereto. The trial court erred in denying Southeast’s motion for directed verdict. See Alexie, Inc., supra.

Judgment reversed.

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

Blackburn, Judge,

concurring specially.

I agree with the conclusion reached by the majority that Haiseal Timber’s action is, in reality, a deficiency action barred by OCGA § 44-14-161 because Haiseal failed to obtain confirmation of its nonjudicial foreclosure. Southeast Timberlands’ promissory note to Haiseal was secured by a single security deed listing numerous pieces of property. The “default” on which Haiseal based its foreclosure was the claimed violation of a clause in that security deed. As the majority opinion correctly concludes, the obligation allegedly created by that clause was not independent but was part and parcel of the secured transaction.

However, I cannot agree with all that is said in the majority opinion, for it improperly concludes that 1) Haiseal quitclaimed title to the “Thompson” tract to Southeast and 2) that this quitclaim somehow represented an accord and satisfaction. The quitclaim deed itself specifies that it transfers title only to certain timber growing on the property, and it makes no mention of any intent to satisfy a debt. The boilerplate printed language at the bottom of the deed waiving “any right or title to said premises or appurtenances, or any rights thereof” cannot overcome the stated, limited transfer specified. See Massey Assoc., Ltd. v. Whitehorse Inns of Ga., 265 Ga. 320, 322 (454 SE2d 513) (1995).

The majority’s overstatement of the effect of this quitclaim deed, however, does not affect the result in this case. Haiseal foreclosed under a power of sale contained in this single security deed. Pursuant to the plain language of OCGA § 44-14-161, “[wjhen any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, . . . and at the sale the real estate does not bring the amount of the debt secured by the deed, . . . no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings . . . shall obtain an order of confirmation.” (Emphasis supplied.) Strictly construing this language as we must, it bars Haiseal’s deficiency action. See Mobley v. Commonwealth Mtg. Assurance Co., 264 Ga. 652, 654 (450 SE2d 205) (1994) (confirmation statute must be strictly construed). Southeast defaulted on its obligations, Haiseal foreclosed, it failed to confirm, and it may not now sue for a deficiency whether or not it failed to foreclose on a portion of the property described in the single security deed. “When the instrument sued upon is embraced by the previous foreclosure, it is a deficiency judgment. [Cits.]” (Punctuation omitted.) Ward v. Pembroke State Bank, 212 Ga. App. 322, 324 (441 SE2d 691) (1994). It is the action for deficiency which the statute bars, and Southeast is protected from such an action as if it had been discharged in bankruptcy. Turpin v. North American Acceptance Corp., 119 Ga. App. 212, 217 (1) (166 SE2d 588) (1969). While not addressing whether or not Haiseal could now foreclose on the Thompson tract, it is prohibited from seeking a deficiency judgment on this instrument. Compare Worth v. First Nat. Bank of Alma, 175 Ga. App. 297, 298 (1) (333 SE2d 173) (1985) (failure to confirm a nonjudicial sale does not prohibit foreclosure on additional security on the debt) with Pindar, Ga. Real Estate Law, § 21-59 (3rd ed.) (“[t]he basic equity rule is that only one foreclosure of a mortgage will be allowed, and the same rule applies to security deeds”).

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

McMurray, Presiding Judge,

dissenting.

I, respectfully, dissent because I cannot go along with the majority’s holding that Haiseal’s claim against Southeast is nothing more than a veiled attempt to collect a deficiency judgment without judicial confirmation. Neither Haiseal’s claim against Southeast nor the jury’s verdict is based upon a deficiency under the promissory note. Haiseal’s claim against Southeast, as well as the jury’s verdict, is based upon Southeast’s failure to turn over proceeds from the sale of collateral (timber) off the Baxter and Thompson tracts. The majority nonetheless holds that this judgment is void — absent confirmation under OCGA § 44-14-161 — because Southeast’s obligation to pay Haiseal for the harvested timber springs from the same note and security deed which authorized Haiseal’s foreclosure of Southeast’s interest in the property. It is my view that this logic superficially discounts the rule that a lender’s failure to confirm a foreclosure sale does not estop the lender from pursuing other contractual security on the debt. See Turner v. Commonwealth Mtg. Assurance Co., 207 Ga. App. 428 (1) (428 SE2d 398). To this end, I believe Southeast’s duty to compensate Haiseal for diminishing the collateral (timberland) is not the same as Southeast’s promise to pay principal and interest under the promissory note. I would therefore affirm the trial court’s determination that confirmation is not mandatory before holding Southeast to its promise to pay Haiseal for cutting timber from the Baxter tract. Saying otherwise, in my view, not only ignores the jury’s finding that Southeast unfairly profited from the timber sale, but also overlooks the fact that Southeast — by retaining the entire worth of the collateral — was not in danger at the foreclosure sale of being victimized by injustices the confirmation statute was designed to overcome, i.e., exposing debtors to double payment in cases where collateral is sold for less than its fair market value. See Redman Indus. v. Tower Properties, 517 FSupp. 144, 148-150 (N.D. Ga. 1981).

I also disagree with the majority’s holding that Haiseal relinquished its right to recover timber proceeds from the Thompson tract by providing Southeast with a “QUITCLAIM DEED.” While this instrument may have effectively transferred certain rights to Southeast, it did not extinguish Southeast’s obligation to pay Haiseal for the timber that was harvested from the Thompson tract. See Morris v. Johnson, 219 Ga. 81, 83 (1), 85 (132 SE2d 45).

The Baxter Tract

“ ‘Although the failure to confirm a foreclosure sale precludes a lender from seeking a deficiency judgment, it does not extinguish the underlying debt. Further, failure to confirm does not estop even the actual lender from pursuing other contractual security on the debt.’ (Citations omitted.) Turner[ v. Commonwealth Mtg. Assurance Co., 207 Ga. App. 428 (1), 429,] supra.” Lund v. Commonwealth Mtg. Assurance Co., 216 Ga. App. 322, 324 (2) (454 SE2d 194). That is, “[t]he confirmation statute does not bar [the lender from pursuing] a subsequent action ‘to recover on an independent, separate, unsecured obligation. . . .’ Murray v. Hasty, 132 Ga. App. 125, 126 (207 SE2d 602) (1974).” Kennedy v. Trust Co. Bank &c., 160 Ga. App. 733, 734 (288 SE2d 87). The controlling question in the case sub judice, then, is whether the majority is correct in holding that Southeast’s obligation to pay Haiseal 80 percent of the timber sale proceeds is not such an independent, separate, unsecured obligation.

In Turner v. Commonwealth Mtg. Assurance Co., 207 Ga. App. 428 (1), 429, supra, a lender’s private mortgage insurance carrier required the borrowers to .execute an indemnity agreement covering the insurer against loss by reason of the borrowers’ default. When a subsequent foreclosure sale failed to satisfy the underlying debt, the borrowers refused to indemnify the private mortgage insurance carrier for the lender’s losses because the lender failed to have the foreclosure sale confirmed. The borrowers reasoned that the indemnity agreement was merely a subterfuge for avoiding compliance with the confirmation statute. Id. at 429 (2), 430. The Court of Appeals rejected this reasoning, holding that the lender’s failure to confirm the foreclosure sale did not preclude enforcement of the indemnity agreement because — even though the indemnity agreement was an essential element of the underlying loan transaction — the indemnity agreement was a “completely independent source than the debt the [borrowers] owed the lender. . . .” Id. at 428 (1), 429. I find no material difference between this holding and the circumstances in the case sub judice.

Just as it was obvious that the indemnity agreement in Turner was a completely separate promise than the debtor’s obligation under the promissory note, it is obvious to me in the case sub judice that Southeast’s duty to compensate Haiseal for selling timber off the encumbered premises is an entirely different obligation than Southeast’s promise to make regular principal and interest payments under the promissory note. Further, like the indemnity agreement in Turner, Southeast’s promise to pay Haiseal a percentage of the timber sale proceeds was merely an additional means of securing the underlying loan transaction. Moreover, Southeast’s obligation to share timber sale proceeds with Haiseal — unlike Southeast’s principal and interest payment obligations — only vested after Southeast sold timber off the encumbered property. Under these circumstances, I believe that Haiseal’s claim for the timber sale proceeds is based upon a separate, distinct and unsecured obligation. I would therefore affirm the trial court’s determination that Southeast should not be allowed to dishonor its promise to share its timber sale profits with Haiseal simply because Haiseal did not have the underlying foreclosure sale confirmed. Saying otherwise, in my view, ignores the jury’s finding that Southeast unfairly profited from the sale of timber off the encumbered land and overlooks the fact that Southeast — by retaining the entire worth of the collateral — was not in danger of being victimized by injustices the confirmation statute was designed to overcome, i.e., exposing debtors to double payment in cases where collateral is sold for less than its fair market value. See Redman Indus. v. Tower Properties, 517 FSupp. 144, 148-150, supra.

Decided December 5, 1996

Reconsideration denied December 19, 1996

Martin, Snow, Grant & Napier, John T. McGoldrick, Jr., Linwood R. Lovett, for appellants.

The Thompson Tract

I also disagree with the majority’s holding that Haiseal relinquished its right to recover proceeds from the sale of timber from the Thompson tract by giving Southeast a “QUITCLAIM DEED.” While this instrument may have effectively transferred certain rights to Southeast, it did not extinguish Southeast’s obligation to pay Haiseal for the timber that was harvested from the Thompson tract. “The . . . fact that such sum was not actually paid . . . creates a liability upon the purchaser which may be enforced in an action at law.” Morris v. Johnson, 219 Ga. 81, 83 (1), 85, supra.

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

Westmoreland, Patterson & Moseley, Thomas H. Hinson II, for appellee.

       The instrument Haiseal gave Southeast is a form document entitled, “QUITCLAIM DEED,” which conveys to Southeast “[a]ll trees and timber, regardless of species or size, standing, growing, lying or being upon the property set forth hereinbelow, save and except, white oak and pine.” Consequently, the majority incorrectly states that “Haiseal executed and delivered a quitclaim deed to Southeast relinquishing any interest in the tract,” and for the same reason, the majority also wrongly concludes that “Haiseal no longer had any interest in the Thompson tract at the time it commenced this action [and that] Haiseal executed and delivered a quitclaim deed to Southeast which released all of its interest in the tract, relinquishing any claim, right or title to the premises or its appurtenances.”