text:
    A95A2540.
    B & D FABRICATORS et al. v. D. H. BLAIR INVESTMENT BANKING CORPORATION.
    (469 SE2d 683)
   Johnson, Judge.

B & D Fabricators, Duval of Georgia, Inc., Electric Supply Company, Inc., Reliance Electric Industrial Company and Simco Supply Company, Inc. (hereinafter collectively referred to as “appellants”) sold electrical components to FiberOptics Machinery Company, Inc. (“FMCI”). When FMCI allegedly failed to pay for the goods, appellants sued FMCI and a related company, Peachtree FiberOptics, Inc. (“PFI”). Appellants also named a passive minority shareholder in FMCI and PFI, D. H. Blair Investment Banking Corporation, Inc., as a defendant. The action was filed in Georgia. D. H. Blair, which is incorporated in Delaware and located in New York, was served in Delaware. When D. H. Blair failed to answer the complaint, the appellants sought and obtained a default judgment against it. Three weeks after the default judgment was entered, D. H. Blair moved to open the default and set aside the default judgment. The trial court initially denied the motion, but later granted D. H. Blair’s motion for reconsideration and vacated the first order. The trial court then entered an order opening the default and setting aside the default judgment on the ground of “proper case.” Appellants moved for but were denied a certificate for immediate review. D. H. Blair filed a motion to dismiss the complaint based on lack of personal jurisdiction which, after a hearing, the trial court granted.

1. Appellants argue that the trial court erred in granting the motion to dismiss based on lack of personal jurisdiction because any such defense was waived by D. H. Blair’s failure to timely answer the complaint after being served with process and by its entry of a general appearance without raising the defense. We disagree with both contentions.

(a) The defense of lack of personal jurisdiction is not waived simply because a foreign corporation which has been served with process fails to answer the complaint timely. “[A] foreign corporation which is not transacting business within this state cannot be forced to come into the state to defend against a claim or to contest jurisdiction. Under OCGA § 9-11-60 (d) (1), (f), a person may bring a motion to set aside a judgment void for lack of jurisdiction at any time. OCGA § 9-11-12 (h) (1) (B) [which provides that a defense of lack of jurisdiction over the person is waived if not made by motion or included in a responsive pleading] cannot be constitutionally applied to preclude a nonresident from bringing such a motion after a default judgment is entered against it.” Hoesch America v. Dai Yang Metal Co., 217 Ga. App. 845, 847 (1) (459 SE2d 187) (1995). “[WJhile it may not be wise to ignore the process, a defendant may do so, risk default, and later attack the judgment based upon the fact that the court did not have jurisdiction over him.” Id. at 848 (1).

(b) D. H. Blair’s act of filing pleadings did not result in a waiver of its jurisdictional defense. “Generally ... a waiver results when a nonresident submits to the jurisdiction of the court by seeking a ruling from the court on the merits of the case or otherwise enters a general appearance without raising the issue. [Cit.]” Hoesch, supra at 848 (1). The first pleading D. H. Blair filed was a motion to open default and to set aside default judgment. In it D. H. Blair alleged, inter alia, that it received no notice of service of process. Eighteen days later, it made the same allegation in a supplemental brief and, in a simultaneously filed answer, it specifically raised lack of personal jurisdiction as a defense. D. H. Blair subsequently filed a motion to dismiss for lack of personal jurisdiction, wherein it specifically alleged that it had no business or other relationship with appellants, transacted no relevant business in Georgia, committed no torts in Georgia and lacked sufficient minimum contacts with Georgia for it to be subject to the jurisdiction of Georgia’s courts. As with earlier motions, it submitted affidavits in support of the allegations. Therefore, the jurisdictional defense was raised. Had D. H. Blair failed to raise the defense of lack of personal jurisdiction either in the answer or by motion filed before or simultaneously with the answer, it would have constituted a waiver. See Whitley v. Hsu, 260 Ga. 539 (397 SE2d 694) (1990). This did not happen here.

We do not agree with appellants that, by alleging in its motion to open and set aside that as a minority shareholder in the businesses it was not liable for the debt underlying the suit, D. H. Blair sought a ruling on the merits. One of the conditions a defendant must satisfy for a default to be opened is that it set up a meritorious defense. See Bryant v. Haynie, 216 Ga. App. 430, 431 (1) (454 SE2d 533) (1995). This is apparently what D. H. Blair attempted to do when it touched upon the merits of the complaint in its motion. Inasmuch as it did not plead to the merits without raising a jurisdictional defense, there was no waiver. See Daughtry v. Cohen, 187 Ga. App. 253, 254 (3) (370 SE2d 18) (1988).

It is important to point out that, in the hearing on the motion to dismiss for lack of jurisdiction, the appellants expressly waived any argument on the issue of whether D. H. Blair was in fact subject to the jurisdiction of Georgia’s courts. The appellants’ only contention on the jurisdiction issue was that D. H. Blair waived any personal jurisdiction defense by not answering or raising the issue timely. Because appellants waived the issue of whether it lacked the requisite contacts with Georgia, and because the lack of personal jurisdiction defense was timely raised, the trial court did not err in dismissing the action based on lack of personal jurisdiction. See generally Apparel Resources &c. v. Amersig Southeast, 215 Ga. App. 483, 486 (1) (451 SE2d 113) (1994).

2. In several enumerations, appellants contend that the trial court erred in considering affidavits filed after the motion to open default and set aside the default judgment was heard, finding that D. H. Blair presented a proper case for opening default, finding that it announced ready for trial and set up a meritorious defense, and granting its motion for reconsideration without allowing appellants 30 days to respond. These enumerations present no grounds for reversal. “Proceedings before a court not having jurisdiction are void and may be treated as a nullity. [Cit.]” (Punctuation omitted.) Carr v. Farmer, 213 Ga. App. 568, 570 (2) (a) (445 SE2d 350) (1994); see Butler v. Home Furnishing Co., 163 Ga. App. 825 (296 SE2d 121) (1982). Inasmuch as the trial court in this case had no jurisdiction, the trial court’s rulings on these issues are immaterial.

In any event, a trial court is afforded broad discretion in deciding the default and reconsideration issues raised in this division. “On appeal the test to determine whether the trial court erred in opening default is not whether this court would have granted or denied the motion had it been ruling thereon at the trial level. OCGA § 9-11-55 (b) allows prejudgment default to be opened on one of three grounds if four conditions are met. The question of whether to open a default on one of the three grounds rests within the discretion of the trial judge. The rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment is a drastic sanction that should be invoked only in extreme situations.” (Punctuation omitted.) Ryles v. First Oglethorpe Co., 213 Ga. App. 327, 328 (1) (444 SE2d 578) (1994). Because the record in this case supports the trial court’s findings that the four conditions were met and that this was a proper case for opening the default, we find no abuse of discretion. Bryant, supra at 432 (1). Furthermore, since under OCGA § 15-1-3 the trial court has the inherent power to entertain a motion for reconsideration at any time within the term of court, and may rule upon the motion with or without notice to either party, Allstate Ins. Co. v. Clark, 186 Ga. App. 58, 59 (2) (366 SE2d 394) (1988) (overruled on other grounds, Stone v. Dawkins, 192 Ga. App. 126 (384 SE2d 225) (1989)), the court did not err in deciding the motion without permitting appellants 30 days to respond.

Finally, we note that a court has a duty to inquire into its jurisdiction, upon its own motion where there is doubt, and is authorized to dismiss a case against a defendant where personal jurisdiction is lacking. See Culwell v. Lomas & Nettleton Co., 145 Ga. App. 519, 522-523 (2) (244 SE2d 61) (1978), rev’d on other grounds, 242 Ga. 242 (248 SE2d 641) (1978). It also has the power to correct its own proceedings before final judgment and to amend and control its orders. OCGA § 15-1-3. Based on the record before us, the trial court did not err in opening the default, setting aside the default judgment, or dismissing the action.

Decided February 8, 1996

Reconsideration denied February 28, 1996

Byrne, Eldridge, Moore & Davis, Francis X. Moore, for appellants.

Sutherland, Asbill & Brennan, Elizabeth V. Tanis, Charles T. Lester, Jr., Thomas W. Curvin, Schreeder, Wheeler & Flint, Lawrence S. Burnat, Alexander J. Simmons, Jr., Holt, Ney, Zatcoff & Wasserman, Stephen C. Greenberg, for appellee.

3. Appellants argue that the trial court erred in refusing to certify for immediate review the court’s order granting D. H. Blair’s motion to open and set aside the default judgment. Even if the trial court had jurisdiction in this case and its rulings were reviewable, this Court would not review the unfettered discretion vested in the trial court in granting or refusing a certificate for immediate review of interlocutory rulings. See Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587, 588 (1) (408 SE2d 103) (1991).

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.

       The four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed to trial, and (4) setting up a meritorious defense. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) a proper case. OCGA § 9-11-55 (b).


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A95A1887.
    DOLLY GRIFFIN & ASSOCIATES, INC. v. INTERNATIONAL INDEMNITY COMPANY.
    (469 SE2d 464)
   McMurray, Presiding Judge.

This declaratory judgment action was filed by plaintiff International Indemnity Company in order to determine whether it owed any defense to defendant Dolly Griffin & Associates, Inc. (“Dolly Griffin”), in a certain personal injury action. Plaintiff issued an automobile insurance policy covering a certain tractor, of the type used to pull trailers on the road, operated by Dolly Griffin. In the personal injury action, Berrey sought damages for injuries which occurred on January 17, 1992, when he drove into a parked trailer which he maintains was negligently parked on the roadway by Dolly Griffin. Plaintiff alleged that no coverage was provided under the policy which is applicable to Berrey’s collision with the parked trailer, but that it was in a position of uncertainty due to Dolly Griffin’s demand for coverage. CSX Transportation, Inc. was named as a defendant in the personal injury action and alleged to be the owner of the trailer, and is also a defendant, along with Berrey, in this declaratory judgment action.

The evidence developed during discovery shows that the trailer was not owned by Dolly Griffin, and that the trailer was placed on the roadway by Dolly Griffin via the use of the insured tractor. But the tractor was not attached to the trailer at the time of the collision.

Dolly Griffin appeals the grant of summary judgment in favor of plaintiff. While several portions of the insurance policy issued by plaintiff are discusséd in the superior court order, only one is relevant to the issues argued on appeal. Held:

The insurance policy provides that plaintiff will pay the personal injury liability of the insured “resulting from the . . . use of a covered auto.” As acknowledged in the superior court order the exact definition of the term “use” is elusive. In Kicklighter v. Allstate Ins. Co., 175 Ga. App. 586, 590 (333 SE2d 670), this Court reiterated that it has adopted a liberal definition of “use,” and noted that this definition extends at least to some point beyond actual physical contact and depends on the factual context of each case.

Under this view, a claim against Dolly Griffin based on the negligent use of the tractor in parking the trailer might remain viable for some interval of time after the trailer is disconnected from the tractor. (By way of comparison, the coverage afforded under the policy for a non-owned trailer attached to the insured tractor terminated when the trailer was disconnected.) Yet, even under the most liberal construction of the term “use,” the injury for which relief is sought may not encompass an event only remotely connected to the use of the insured vehicle. Thus, in City of Rossville v. Britton, 170 Ga. App. 1 (2), 3 (316 SE2d 16), an injury from alleged negligence in leaving a dumpster in an upright position was held to be too remote from the use of the insured vehicle in placing the dumpster two days prior to the injury.

In granting plaintiff’s motion for summary judgment, the superior court finds that Berrey’s collision with the trailer occurred some 11 days after the trailer was transported by the insured tractor and that the injury was thus too remote from and did not result from the “use” of the insured tractor. The primary assertion raised on appeal by Dolly Griffin is that there is no evidence authorizing the superior court’s factual conclusion concerning the length of time the trailer was parked prior to the collision, so that a genuine issue of material fact remains as to the proximity in time, space, and circumstance between the use of the insured tractor and Berrey’s injuries. In other words, Dolly Griffin argues, and correctly so, that whether the collision arose from the use of the insured tractor cannot be determined from the evidence of record.

Decided February 28, 1996.

Albert B. Wallace, Stephen B. Wallace II, for appellant.

Casey, Gilson & Williams, Sandra Gray, Jeffery R. Nabors, James B. Gurley, for appellee.

The factual error may have occurred due to affidavits of Dolly Griffin employees which establish that 11 days prior to the collision, a request to tow a trailer to the scene of the collision was received by Dolly Griffin and instructions given to a driver to perform this task, and that the trailer was subsequently picked up and hauled to the site of the collision. But these affidavits do not reveal when the task was actually accomplished. The complaint in the personal injury action alleges that on the date of the collision, Dolly Griffin “left” a trailer negligently parked in the roadway.

It is black letter law that on consideration of a motion for summary judgment, the evidence must be construed against the movant. The burden is on the movant to show that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law. Rivergate Corp. v. BCCP Enterprises, 198 Ga. App. 761, 762 (403 SE2d 65). Where the movant fails in that burden, the grant of summary judgment is error. 944, Inc. v. Ga. State Bank, 198 Ga. App. 893, 894 (403 SE2d 466). A genuine issue of material fact remains as to whether the negligent use of the insured tractor to park the trailer is a proximate cause of Berrey’s injuries. The record being silent on this issue, the grant of summary judgment was error.

Judgment reversed.

Andrews and Blackburn, JJ., concur.


author: Andrews, Judge.

text:
    A95A1998.
    SCHAFER PROPERTIES et al. v. TARA STATE BANK.
    (469 SE2d 743)
   Andrews, Judge.

This case is before us on appeal from the trial court’s order granting summary judgment to Tara State Bank (“Bank”) on its claim against Schafer Properties and Paul and John Hoffman (“defendants”) for default on an $85,000 promissory note. Defendants admit they are in default on the note but claim the note is void and unenforceable as part of a compromise agreement based on a previous note for which there was no consideration and which allegedly violated the “anti-tying” provisions of 12 USC 1972.

The trial court found the note was part of a negotiated, bargained-for, compromise agreement in which both parties were represented by counsel, both parties made concessions, and to which both parties mutually agreed. Accordingly, the court found the note was valid and enforceable and granted summary judgment to the Bank on its claim. We agree and affirm.

The $85,000 note and the compromise agreement came about as a result of a dispute over another note (“1990 note”) for $242,973.13, executed in 1990 by Schafer Insulation and personally guaranteed by Don Schafer and the Hoffmans. It is the terms of this 1990 note which defendants claim render the compromise agreement and the $85,000 note unenforceable. Schafer Insulation received no cash in exchange for executing this 1990 note. The consideration for this note was another note for approximately $177,000 from Schafer Insulation to the Bank and a credit by the Bank of $66,000 to a previous bad debt of King Stewart Lakewood (KSL) Hardware. KSL Hardware defaulted earlier in 1990 on a note personally guaranteed by Don Schafer and Ralph Kessler, the shareholders. Don Schafer and Kessler declared bankruptcy and the Bank was forced to charge off approximately $300,000 in bad debt from that note.

After a dispute arose over payment of the 1990 note, the Hoffman brothers and the Bank reached a compromise agreement. In addition to the $85,000 note, the agreement called for a $105,000 cash payment to the Bank and also provided that the Bank would forgive approximately $59,000 of debt owed on the previous 1990 note. Although the note was signed by Schafer Properties and the Hoffmans individually, the compromise agreement was signed only by the Hoffman brothers.

1. The Hoffmans argue the note lacked consideration because the 1990 note and the compromise agreement were in violation of 12 USC 1972. This statute provides, in pertinent part: “A bank shall not in any manner extend credit, lease or sell property of any kind, or furnish any service, or fix or vary the consideration for any of the foregoing, on the condition or requirement . . . that the customer shall obtain some additional credit, property, or service from such bank other than a loan, discount, deposit, or trust service; . . . [or] provide some additional credit, property, or service to such bank, other than those related to and usually provided in connection with a loan, discount, deposit, or trust service. . . .” 12 USC 1972 (1) (A) and (C).

Federal courts have found a violation of this statute when the transaction involves “a bank requiring one customer to guarantee the debt of another unrelated or incidentally related customer.” (Emphasis omitted.) Palermo v. First Nat. Bank &c. Co. of Oklahoma City, 894 F2d 363, 370 (10th Cir. 1990). The purpose behind these anti-tying provisions is to “prohibit anti-competitive practices which require bank customers to accept or provide some other service or product or refrain from dealing with other parties in order to obtain the bank product or service they desire.” (Citation and punctuation omitted.) Swerdloff v. Miami Nat. Bank, 584 F2d 54, 58 (5th Cir. 1978).

Although the Bank forgave $59,000 of the debt owed on the 1990 note, $6,783.71 still remained of the $66,000 credited to the bad debt of KSL Hardware. Defendants argue that forcing them to include this $6,783.71 in the compromise agreement violates the anti-tying provisions of 12 USC 1972 discussed above and, therefore, the note is unenforceable because it is based on an illegal transaction and a violation of public policy, resulting in a partial failure of consideration.

The Compromise Agreement provides: “It is the intention of the parties in executing this Settlement Agreement that it shall be effective as a bar to each and every claim, demand, or cause of action hereinabove described except for those documents executed simultaneously as a part hereof. The parties expressly consent that this Release shall be given full force and effect according to each and all of its terms and provisions. The parties agree that this Release is an essential and material term of the Settlement Agreement and that without such Release no settlement would have been reached by the parties. The parties have been advised by their counsel with respect to such Release and understand and acknowledge the significance and consequences of this Settlement Agreement.”

While there is no Georgia case law on this issue, a federal district court has expressly approved the use of settlement agreements to resolve this type of dispute and rejected a claim that the alleged anti-tying violation made the note unenforceable. In that case, the borrower executed a Settlement Agreement with the bank and subsequently defaulted. He claimed that “allowing a waiver of anti-tying claims while the original coercion still exists would defeat the policies which underlie the statute, namely to protect borrowers from unfair and predatory practices by banks.” (Citations and punctuation omitted.) Gustin v. Fed. Deposit Ins. Co., 835 FSupp. 503, 508 (W. D. Mo. 1993). The court rejected this contention, stating that the issue was not one of waiver, but, rather, whether a person could compromise and release his or her private cause of action after it has accrued. Id. The court found that, as a matter of public policy, a private cause of action under the anti-tying statute, like any other cause of action, may be compromised and settled. Id. We agree with this finding, noting that it is in accord with the position that settlement agreements are highly favored under the law and will be upheld whenever possible as a means of resolving uncertainties and preventing lawsuits. D. H. Overmyer Co. v. Loflin, 440 F2d 1213, 1215 (5th Cir. 1971).

2. Defendants also claim that even if the compromise agreement bars these claims as defenses to the 1990 note, the compromise agreement specifically states that these claims are not barred with respect to documents executed simultaneously with the agreement. Because over $6,000 from the previous allegedly illegal 1990 note is included in the $85,000 note, then defendants claim their defenses are not barred in connection with this note, executed as part of the compromise agreement. We disagree. To put such a strained construction on the release provisions would render them meaningless. This Court construes contracts so as to give them the meaning which will best carry out the intent of the parties. Brooke v. Phillips Petroleum Co., 113 Ga. App. 742, 744 (2) (149 SE2d 511) (1966). In doing this we must look at the instrument as a whole and consider it in light of all the surrounding circumstances. Brooke, supra at 744. Thus, the favored construction will be that which gives meaning and effect to all the terms of the contract over that which nullifies and renders meaningless a part of the document. Brooke, supra at 744. The release paragraph is unambiguous and provides: “The parties fully release and forever discharge each other from any and all claims, demands, liens, agreements, contracts, promises, covenants, actions, suits, causes of action, obligations, controversies, debts, costs, expenses, damages (compensatory, punitive, or otherwise), judgments, orders, professional complaints and liabilities of whatever kind or nature, in law, in equity, or otherwise, whether known or unknown, vested or hidden, which may have existed, do exist or which may exist in the future concerning their injuries, relationship, performance reputations, services, or the termination of their relationship.”

Accordingly, pretermitting the issue of whether or not defendants could show any anti-tying violations, we find that these claims were properly the subject of a compromise settlement agreement, and, having bargained for, and negotiated this agreement, defendants are now bound by it. Gustin, supra at 508. Therefore, as the Bank has shown there is no genuine issue of material fact to be decided and it is entitled to judgment as a matter of law, the trial court correctly granted summary judgment to the Bank on the $85,000 promissory note. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

3. In light of our holdings in Divisions 1 and 2, we do not address the remaining enumeration of error.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Decided February 28, 1996.

John W. Mrosek, for appellants.

Glaze, Glaze & Fincher, Laurel E. Henderson, Theodore P. Meeker III, for appellee.

       It appears the Hoffmans had become the sole owners of Schafer Insulation due to Schafer’s conveying or pledging his stock in the company to them. As the Hoffmans were not involved in the default on the KSL Hardware debt, they objected to being forced to assume part of that debt in order to continue their relationship with the Bank.


text:
    A95A2082.
    SCHAFFER v. CITY OF MARIETTA.
    (469 SE2d 479)
   Andrews, Judge.

The City of Marietta brought this interpleader action to determine who was entitled to Howard Schaffer’s retirement benefits after his death. His widow, Virginia Schaffer, contends the survivor’s benefits are payable to Howard Schaffer’s estate, and his brother, Bud Schaffer, claims he is the beneficiary. After a bench trial, the court found Mrs. Schaffer, as remainder beneficiary under the will, was entitled to the benefits, and Bud Schaffer appeals.

The underlying facts in this case are undisputed. Howard Schaffer, as an employee of the City of Marietta, participated in a retirement program called the Joint Municipal Employees Retirement System (“JMERS”). Under this program, if a participant died before retirement, the employee’s designated beneficiary would still receive a monthly retirement benefit. Howard Schaffer initially designated his wife as the beneficiary. But, his wife died before Schaffer retired, and Schaffer filled out a “Request for Change of Name, Address, or Beneficiary Prior to Retirement” form, designating his brother Bud as the beneficiary.

On July 1, 1977, Howard Schaffer retired. At the time of his retirement, Schaffer was required to fill out an “Application for Retirement” form and elect among four different plans for his retirement. Schaffer chose Plan A which provided that he would receive the maximum allowance payable to him during his lifetime. The form explained that, under this plan, all benefits would cease at his death, and there would be no benefits payable to any joint annuitant or beneficiary. Section II of the form provided a space for the designation, in accordance with the plan elected, of a joint annuitant or beneficiary to whom any accrued benefits would be payable in the event of the participant’s death in retirement. Schaffer wrote “N/A” in that space.

In 1988, the City of Marietta, pursuant to a District Court order, extended survivor’s benefits to all employees retiring prior to January 1, 1984, regardless of the plan chosen at the time of retirement. In April 1990, Schaffer married Virginia Morell, and executed a will leaving her the bulk of his estate. Schaffer died in 1992, without having designated a beneficiary for the survivor’s benefits.

At trial, Virginia Hankerson, the benefits manager for the City of Marietta, testified that, at retirement, the employee was given the opportunity to name a beneficiary, and whatever beneficiary he designated at that time could not be changed.

The trial court found the Application for Retirement form served as a revision to the Request for Change of Name, Address or Beneficiary Prior to Retirement form. The court held that Schaffer did not intend to designate a beneficiary on his Application for Retirement. Accordingly, the funds were payable to Schaffer’s estate. Since Shaffer’s will names Virginia Schaffer as the remainder beneficiary, the court held she was entitled to the retirement benefits.

Bud Schaffer appeals, contending the beneficiary named to receive benefits should the employee die before retirement, remained the beneficiary unless the designation was changed prior to retirement. He contends that writing N/A in the space reserved for beneficiary did not change the name of the beneficiary. We disagree.

1. While there is no case law on point, the Georgia Supreme Court has held that provisions of municipal retirement plans will be strictly construed and the rights of the parties will be determined under the law of contracts. See Nash v. Tinch, 235 Ga. 654, 655 (221 SE2d 425) (1975). Where the terms of a contract are susceptible of more than one meaning, the fundamental rule of contract construction is to give them the meaning which will best carry out the intent of the parties. Brooke v. Phillips Petroleum Co., 113 Ga. App. 742, 744 (2) (149 SE2d 511) (1966). In doing this we must look at the instrument as a whole and consider it in light of all the surrounding circumstances. Brooke, supra at 744. Thus, the favored construction will be that which gives meaning and effect to all the terms of the contract over that which nullifies and renders meaningless a part of the document. Brooke, supra at 744.

Accordingly, looking at the Application for Retirement, it is clear that in electing Plan A, it was Schaffer’s intent to have the maximum payout of benefits during his lifetime, and, in accordance with the instructions on the form, his intent also was to not designate anyone as beneficiary. The trial court correctly found that this revised or superseded his designation of his brother to receive benefits prior to retirement. Further, as the parties do not dispute that in the event no beneficiary is named, the survivor’s benefits are payable to Schaffer’s estate, the trial court correctly held that the survivor’s benefits became part of the estate.

2. Bud Schaffer also objects to the introduction into evidence of Howard Schaffer’s will, contending that it was irrelevant since the trial court could only find that the benefits were payable to the estate. We agree. But, this was a bench trial, and the error, if any, was harmless and could not affect the outcome. Indeed, when the judge sits as the trier of fact, it is presumed that she will consider .only legally admissible evidence. Daniels v. State, 211 Ga. App. 23, 25 (438 SE2d 99) (1993).

Decided February 28, 1996.

Donald F. DeFoor, for appellant.

Edwards, Friedewald & Grayson, James W. Friedewald, Haynie & Litchfield, Douglas R. Haynie, Emilie K. Petrovich, for appellee.

Bud Schaffer also objects to language in the trial court’s order which states the benefits are payable to Virginia Schaffer as remainder beneficiary under the will, instead of as executor of the estate. Since the trial court’s order correctly finds the benefits became part of the estate, and since Virginia Schaffer stipulates she does not object to the funds being paid into the estate, we need not address this issue.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A95A2093.
    WINBURN et al. v. McGUIRE INVESTMENT GROUP, # 17.
    (469 SE2d 477)
   Andrews, Judge.

Winburn and Friedenberg, defendants below, appeal from the trial court’s grant of summary judgment to McGuire Investment Group, # 17 (McGuire) in McGuire’s suit for breach of a lease. We affirm.

The lease at issue is over 30 pages in length and was for a unit in a Savannah shopping center. The preamble to the lease states that it is between McGuire and “Ricky S. Friedenberg and James Randal Winburn, III d/b/a T Can’t Believe It’s Yogurt’ (Tenant).” Section 1.1, headed “Reference Provisions,” states in subpart (j) that the “Notice Address” for the tenant is “Fried-Win Inc., 11613 Abercorn St., Savannah, Ga. 31406.” There are two signature lines for the tenant. The names of the two individuals are typed under the signature lines with the typed addition “d/b/a T Can’t Believe It’s Yogurt.’ ” Friedenberg signed his name, with the addition of “Pres.” After Win-burn’s signature is “VP.”

Winburn deposed that Fried-Win, Inc. had been formed around February 1987 and he and Friedenberg were the sole shareholders. The only business of the corporation was running ICBY franchises. There were originally two ICBY franchises in different locations, but one had been closed due to insufficient business.

1. “The construction of the provisions of this lease, as with other contracts, is generally one for the court to determine as a matter of law. OCGA § 13-2-1.” Peachtree &c. Investors v. Reed Drug Co., 251 Ga. 692, 694 (1) (308 SE2d 825) (1983).

“ ‘ “It is the responsibility of the court to determine whether an ambiguity exists. (Cit.) If the contract does not require disentanglement of the language by a jury, i.e., the words used are plain and clear in their common usage, it remains the duty of the trial court to look to the language of the contract with a view to effectuating the intent of the parties.” (Cit.)’ [Cit.]” Paces Partnership v. Grant, 212 Ga. App. 621, 624 (2) (442 SE2d 826) (1994).

Defendants, having been sued for over $8,000 in past due rent, contend that, because the two signatures contain “Pres.” and “VP” and the address for notices was listed as “Fried-Win, Inc.,” even though the tenants are defined as the individuals, this creates an internal ambiguity requiring the intervention of a jury and allowance of parol evidence as to whether or not this was a corporate or individual debt. This contention is premised solely on Schroeder v. Hunter Douglas, Inc., 172 Ga. App. 897, 901 (9) (324 SE2d 746) (1984), and Rockwell Intl. Corp. v. Riddick, 633 FSupp. 276, 279 (2) (N.D. Ga. 1986).

In Schroeder, Hunter Douglas, Inc. sued Superior Discount Materials Corporation on an open account for which it contended Schroeder, president of Superior, was liable under a written guaranty to Crown Aluminum Industries (purchased by Hunter Douglas). Superior had been incorporated for the sole purpose of serving as buying agent for Delta Discount Corporation, of which Schroeder was also president. The guaranty was issued to Crown Aluminum by “Vern Schroeder of Delta Discount.” The signature line contained his signature without further designation. There, this court held that there was an ambiguity in the guaranty as to whether Schroeder had signed the guarantee in his individual capacity or on behalf of Delta. If on behalf of Delta, there would be one corporation guaranteeing the debts of another, which is not the situation here.

Further, here, a provision of the lease specifically identifies the tenant and landlord. The inclusion of the notice address could not and did not create an ambiguity as a matter of law. Paces, supra.

Rockwell, supra, is not legally binding on this court but may be considered persuasive. Head v. State, 253 Ga. 429, 430 (1) (322 SE2d 228) (1984). That case also involved a guaranty situation in which the document referred to “the undersigned” guarantors and the signature line was of “Sam B. Riddick - President.” The guarantee was for the losses of Southeastern Wheels, Inc. of which Riddick was president. After he had left the company, the holder of the guaranty sued him for losses attributable to Southeastern. In defense, he contended that the guaranties were signed by him in his corporate capacity, not personally. The court found that the “form and content of the guaranties manifest a clear intent to bind defendant personally rather than the company of which defendant was president at the time, Southeastern Wheels. Of foremost importance is the fact that the indebtedness which was being guaranteed was that of Southeastern Wheels; this alone strongly suggests that defendant signed in his individual capacity since, as another court has observed, ‘(f)or a corporation to guarantee its own debt would add nothing to its existing obligation and would be meaningless.’ [Cits.]” (Emphasis supplied.) Rockwell, supra at 280.

Decided February 28, 1996

Lee, Black, Scheer & Hart, Steven E. Scheer, Christopher L. Rouse, for appellants.

Hunter, Maclain, Exley & Dunn, J. Reid Williamson III, Robert A. Lewallen, Jr., Robin & Berry, Sherwin P. Robin, Portman & Felser, Barnard M. Portman, for appellee.

Here, even if the parol evidence were to show that Winburn and Friedenberg had an oral understanding between the two of them that the lease was in the corporation’s name, this would result in the situation disapproved of in Rockwell, supra.

2. There is a further legal obstacle to the argument made by defendants. Since “tenant” is defined in the lease as two individuals and cannot otherwise be interpreted, even if Winburn and Friedenberg had such an understanding between themselves, their “agency” for the corporation was not disclosed. Reed v. Burns Intl. Security Svc., 215 Ga. App. 60 (449 SE2d 888) (1994); Hunter Turnkey v. Pilot Property Co., 210 Ga. App. 365, 366 (436 SE2d 84) (1993).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A95A2293.
    BUTLER v. LANIER PARK REGIONAL HOSPITAL.
    (469 SE2d 475)
   Andrews, Judge.

In this slip and fall case, the trial court granted defendant Lanier Park Regional Hospital’s (“Hospital”) motion for summary judgment. Plaintiff Barbara Butler appeals, arguing that issues remain to be tried as to whether the Hospital (1) had constructive knowledge of the substance upon which Butler fell and (2) properly inspected the premises.

This case arose after Butler slipped and fell while visiting her daughter, a patient in the Hospital. Since her daughter’s 5:30 a.m. surgery, Butler had been in a waiting room, in her daughter’s room, or walking up and down the connecting hallway. At around 2:00 in the afternoon, she walked out of her daughter’s room and past the nurses’ station in the hall. Within two minutes, she returned. On her way back, she looked up at the clock, and fell near the garbage can by the nurses’ station. She did not look at the floor as she walked. Butler testified that she fell on a “whole bunch” of plastic caps used to cover needles. Butler injured her elbow, back, knee, and ankle in the fall; her back subsequently required surgery.

Butler’s complaint alleges that the Hospital was negligent in failing to maintain its premises. The Hospital moved for summary judgment, arguing that it had implemented reasonable inspection and cleaning procedures and Butler failed to exercise ordinary care for her own safety. The court granted the Hospital’s motion, finding no issues remained to be tried as to the Hospital’s lack of knowledge of the plastic caps.

To recover, Butler must prove that: (1) the Hospital had actual or constructive knowledge of the plastic caps, and (2) she lacked knowledge of, or the Hospital prevented her from discovering, the caps. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 809 (406 SE2d 234) (1991). The basis for the Hospital’s liability is its superior knowledge. Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (422 SE2d 305) (1992). If Butler knew of the plastic caps, or in the exercise of ordinary care could have avoided them, she cannot recover. Id.

Because there is no evidence that the Hospital had actual knowledge, the issue presented is whether it had constructive knowledge of the allegedly hazardous condition. Constructive knowledge can be established with evidence that (1) the Hospital failed to exercise reasonable care in inspecting its premises, or (2) an employee was in the immediate vicinity of the hazardous condition and could easily have noticed and corrected it. Smith, 199 Ga. App. at 809.

Evidence that housekeepers conducted their usual inspection of the floors every 20 minutes on the day Butler fell precludes Butler’s argument that the Hospital failed to exercise reasonable care in its inspection procedures. Drake v. Kroger Co., 213 Ga. App. 72 (1) (443 SE2d 698) (1994). Moreover, the evidence showed that Butler walked past the area where she fell two minutes before her fall and saw nothing on the floor and her daughter testified that she passed the area five minutes before Butler fell and saw nothing. Where the evidence shows the foreign object at issue could have been on the floor no more than 10 to 15 minutes, there is no actionable negligence in the failure to discover it. Mazur v. Food Giant, 183 Ga. App. 453 (1) (359 SE2d 178) (1987).

Decided February 28, 1996.

Richard W. Summers, for appellant.

Sullivan, Hall, Booth & Smith, David V. Johnson, for appellee.

Nor does the evidence support the theory that the Hospital’s employees could easily have noticed the caps and removed them. Although the evidence as to the number of nurses at the nursing station when Butler fell is disputed, the bare allegation that employees were in the general vicinity of a hazard does not in itself establish constructive knowledge. Drake, 213 Ga. App. at 74. Butler has presented no evidence that would show the nurses were in a position to see or remove the caps from the floor. Moreover, it is undisputed that the only nurse Butler actually identified, who assisted her after she fell, was too short to see the area from her seated position.

Moreover, Butler’s testimony that she was not looking at the floor when she fell warrants the trial court’s disposition of this case. Such testimony reveals a lack of due care. Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327) (1980). Thus, the trial court properly granted summary judgment.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur in the judgment only.

       This evidence is disputed. The nurse who assisted Butler testified that she saw only the single plastic cap in Butler’s hand after the fall, and no other debris littered the floor.


text:
    A95A2330.
    SYKES v. SPRINGER et al.
    (469 SE2d 472)
   Andrews, Judge.

On September 28, 1994, Billy Lee Sykes filed a complaint against David Springer and Earl Sherwood Enterprises, Inc. (“Sherwood”) for personal injuries allegedly sustained in an automobile accident on October 14, 1992. Sykes filed in the wrong county and failed to properly serve either defendant until 106 days after the statute of limitation expired. Finding no adequate explanation for Sykes’ failure to complete service of process in a timely manner, the trial court dismissed the complaint with prejudice. For the reasons which follow, we affirm.

The record shows the following facts. At the time of filing, about 16 days before the expiration of the statute of limitation, Sykes’ complaint listed the correct address of both Springer and Sherwood but Sykes paid for service of process only on Sherwood, the corporate defendant. The sheriff’s entry of service from Pike County, returned on September 30, 1994, indicated that service could not be made because Sherwood’s registered agent’s address was in Spalding County. About two months later, when Sykes’ counsel discovered he had filed in the wrong county, he filed a motion to transfer. Proper service was not effectuated on either Springer or Sherwood until January 28, 1995, 106 days after the statute of limitation had run.

In opposition to Springer and Sherwood’s motion to dismiss, Sykes presented the affidavits of his counsel and counsel’s secretary. Counsel blamed an unidentified person at the fire department for misinforming him as to the correct county of the registered agent of Sherwood. Counsel testified that because he never received a copy of the return of service from Pike County, he did not realize there was a service problem. Counsel testified that at his behest, probably in mid-October, his secretary contacted the Pike County clerk’s office and an unidentified person misinformed her that the action had been served on Sherwood on September 30, 1994.

Counsel further testified that he continued to wait for Sherwood’s answer until he discovered on November 29, 1994, that no service had been made. The next day, counsel filed a motion to transfer, which was granted on December 15, 1994. He did not discover that the Spalding County clerk’s office needed additional funds for service on Sherwood until January 25.

Counsel also attested that he spoke with the defendants’ insurance adjuster and faxed a copy of the complaint to the defendants’ attorney. Counsel’s secretary testified that when she checked with the Pike County clerk’s office in mid-October, someone told her Sherwood had been served on September 30, 1994. She further testified that she never received the service form back.

1. Sykes contends the trial court abused its discretion by dismissing his action because the delay was 1) due to the mistakes and misinformation of public officials and 2) due to the passage of time necessary in effecting a transfer from one county to another.

Where service is made, as here, after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute, but only if the plaintiff shows that he acted in a reasonable and diligent manner in attempting to effectuate proper service as quickly as possible. The plaintiff also has the burden of showing lack of fault. Slater v. Blount, 200 Ga. App. 470, 472 (408 SE2d 433) (1991).

Under the facts of this case, Sykes has not demonstrated he acted in a reasonable and diligent manner as a matter of law. The burden is on a plaintiff to ascertain a defendant’s address including his proper county. See Devoe v. Callis, 212 Ga. App. 618, 619 (442 SE2d 765) (1994), and Ingram v. Grose, 180 Ga. App. 647 (350 SE2d 289) (1986). The fact that the Williamson, Georgia, address is on the border of two counties should have alerted Sykes to investigate more carefully and not to accept the word of an unidentified person at the fire department. When a copy of the return of service paperwork from Pike County did not arrive, it was Sykes’ responsibility to ascertain whether or not there was a problem with service. Additionally, Sykes’ counsel admitted that he failed to pay adequate funds to Spalding County for service on Springer or Sherwood until late January 1995, well after the statute had run. In fact, the evidence shows not only did Sykes fail to pay Spalding County the $25 service fee on either defendant, but also Sykes failed to provide Spalding County with completed entry of service sheets.

Decided February 28, 1996.

Strauss & Walker, John T. Strauss, for appellant.

“ ‘[T]he determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on áppeal absent abuse.’ (Citations and punctuation omitted.) Hossain v. Tohme, 205 Ga. App. 538, 539-540 (1) (423 SE2d 4) (1992).” Devoe, 212 Ga. App. at 619 (1). In this case, we find no abuse of discretion.

2. Sykes contends that “reasonable diligence” did not obligate him to effectuate service of process beyond ordinary and customary methods. We note that this is an inaccurate portrayal of Sykes’ perilous situation after he learned Sherwood had not been served within the statutory limit. From the time Sykes received notice of a problem with service, he was obligated to exercise, not due diligence, but “ ‘ “the greatest possible diligence to ensure proper and timely service.” (Cit.)’ [Cit.]” Devoe, 212 Ga. App. at 620. Here, Sykes caused additional delay by failing to pay the proper filing fees with Spalding County to ensure that both defendants would be served after the transfer. Although the transfer order was signed December 15, 1994, service on both Springer and Sherwood was not accomplished until January 28, 1995.

3. We reject Sykes’ final argument that there was no harm to Springer or Sherwood by the delay in service because Sykes’ counsel provided notice of the impending suit to their agents, an insurance adjuster and their attorney. Such notice is irrelevant. “‘“[W]here there has been no service of a suit, or waiver thereof, the necessity of service is not dispensed with by the mere fact that the defendant may in some way learn of the filing of the suit.” ’ [Cit.]” Trammel v. Nat. Bank of Ga., 159 Ga. App. 850, 852 (285 SE2d 590) (1981). In this case, there was no timely service and there was no waiver thereof.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Downy & Cleveland, G. Lee Welborn, for appellees.


text:
    A95A2351.
    KELLY et al. v. PIERCE ROOFING COMPANY, INC.
    (469 SE2d 469)
   Andrews, Judge.

The Kellys appeal the trial court’s order granting Pierce Roofing’s motion for judgment on the pleadings and denying their motion to file a counterclaim. The pertinent facts are as follows.

The Kellys initially contracted with Associated Interiors to have improvements made on their house. Associated Interiors then contracted with Pierce Roofing to supply labor and materials for the roof, gutter, and copings of the house. Pierce finished its work on the roof on January 18, 1991. That same month, Associated Interiors abandoned its contract with the Kellys without completing the work. Associated Interiors did not pay Pierce Roofing for the labor or the materials supplied by Pierce.

Accordingly, on April 11,1991, Pierce Roofing filed a claim of lien against the Kellys’ property. On June 7, 1991, Pierce filed a complaint-against Associated Interiors and on October 30, 1991, the trial court entered a default judgment for Pierce Roofing against Associated Interiors for $6,713 plus $906.26 interest. Associated Interiors did not pay anything on this judgment and Pierce Roofing then filed a complaint on lien against the Kellys’ property, requesting the amount of their judgment against Associated Interiors. The Kellys answered, denying liability. On September 21, 1994, Pierce Roofing filed a motion for judgment on the pleadings. The Kellys filed no response to the motion, but, on October 28, 1994, the day set for the hearing on the motion, they filed a motion requesting permission to file a counterclaim in which they alleged the roof was defective. The court denied the motion to file a counterclaim and granted Pierce Roofing’s motion for judgment on the pleadings. The trial court awarded Pierce Roofing $6,713 plus interest of $906.26. This appeal followed.

Since this action arose as a complaint on a lien against the Kellys’ property, we conclude the matter is correctly before us by direct appeal under OCGA § 5-6-34 (a) (1). While the amount of the trial court’s award is less than $10,000, an action on a lien is not an action for damages necessitating a discretionary appeal under OCGA § 5-6-35 (a) (6). But, Pierce Roofing contends that when the Kellys executed a bond to discharge lien, thus becoming principal and sureties under the bond, the remedy was no longer against the property, but rather, an in personam remedy against the Kellys as principal and sureties under the bond. Therefore, they claim this is no longer an action in rem, but an action for damages under OCGA § 5-6-35.

We do not find this argument persuasive. The order appealed from gave Pierce Roofing “judgment and special lien” against the Kellys’ property as collateral to secure the bond. The Kellys’ choice to post a bond to satisfy any judgment on the lien does not change the nature of the underlying action and should not result in their inability to appeal based on a technicality. See Blackwell v. Cantrell, 169 Ga. App. 795, 796 (315 SE2d 29) (1984). Accordingly, Pierce Roofing’s motion to dismiss is denied.

1. First, the Kellys claim that since the court clearly considered evidence outside the pleadings, the motion for judgment on the pleadings was converted into a motion for summary judgment which requires that parties be given 30 days notice in order to respond. See OCGA § 9-11-56. The record shows that on September 23, 1994, Pierce Roofing’s counsel mailed a copy of the motion and notice of the hearing on October 28, 1994, to both Mrs. Kelly and the Kellys’ counsel. Beyond the mere allegation that they did not receive proper notice, the Kellys offer no other argument or support for this claim. Further, there is no transcript of the October 28 hearing from which we could determine whether this, issue was ever raised in the trial court. It is well-settled that this court will not review errors raised for the first time on appeal. City of College Park v. Pichon, 217 Ga. App. 53, 55 (456 SE2d 686) (1995). Further, “the burden is on the party alleging error to show it affirmatively by the record.” Campbell v. Powell, 206 Ga. 768, 770 (58 SE2d 829) (1950). Accordingly, as there is nothing before us to review, we are unable to address this enumeration of error.

2. Next, the Kellys contend the trial court erred in granting Pierce Roofing’s motion for judgment on the pleadings because Pierce Roofing did not affirmatively show that it had substantially complied with its contract with Associated Interiors, a prerequisite to recovering on its lien. OCGA § 44-14-361.1 (a) (1); Spicewood, Inc. v. Ferro Pipeline Co., 181 Ga. App. 277 (351 SE2d 711) (1986). As both parties seem to be in agreement that Pierce Roofing’s motion for judgment on the pleadings was converted to a motion for summary judgment under OCGA § 9-11-12 (c), see appellants’ brief, p. 8 (“clearly the trial court considered matters beyond the scope of the pleadings”), the standard of review is that set out in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). This provides that in order “[t]o prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. ...” Lau’s Corp. v. Haskins, supra. “The movant has the original burden of making this showing. Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence.” (Citations omitted.) Ellis v. Curtis-Toledo, Inc., 204 Ga. App. 704, 705 (420 SE2d 756) (1992).

Here, in support of its motion, Pierce Roofing relied on its complaint, the Kellys’ answer, the affidavit of J. C. Pierce, the affidavit of Dennis Kelly, Pierce Roofing’s materialman’s lien, and the judgment obtained by Pierce Roofing against Associated Interiors. The Kellys presented no evidence in rebuttal, relying on their answer which stated that they were without sufficient knowledge to form an opinion as to whether Pierce Roofing’s allegation that it completed its contract with Associated Interiors was true or not. They contend they were not required to respond to the motion because Pierce Roofing failed to establish a prima facie case. They claim Pierce Roofing’s judgment against Associated Interiors does not establish prima facie evidence that Pierce Roofing substantially complied with their contract.

We disagree. While the Kellys are correct in claiming that a materialman’s default judgment against a contractor is not binding bn the bwners, see Tri-State Culvert Mfg. v. Crum, 139 Ga. App. 448 (228 SE2d 403) (1976), it dees net fellow that the judgment cannot be used as prima facie evidence of substantial compliance with the contract. In this instance, a default judgment operates as an admission by the contractor “ ‘of the truth of the definite and certain allegations ... of the declaration.’ ” Stroud v. Elias, 247 Ga. 191, 193 (275 SE2d 46) (1981). Thus, one of the allegations established is that Pierce completed the work required by the contract. Accordingly, we find Pierce Roofing’s judgment against the contractor is prima facie evidence that Pierce substantially complied with its contract. Therefore, the Kellys could not rest on the pleadings, but were required to come forward and point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e); Lau’s Corp., supra at 491. Because they failed to do so, Pierce Roofing was entitled to summary judgment on its claim.

3. The Kellys also claim the trial court erred in denying their motion to file a permissive counterclaim. Pierce Roofing filed its complaint on April 11, 1991, and the Kellys filed a motion to file a counterclaim on October 28, 1994. The Kellys stated in their motion they had only recently discovered damage due to the roofs having been improperly installed.

“A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading. Permission of the court is a necessary prerequisite to the supplemental pleading of a counterclaim under . . . OCGA § 9-11-13 (e) and the decision to grant or deny the motion is totally within the trial court’s discretion.” (Citation and punctuation omitted.) Feifer v. Reliance Kitchens, USA, 189 Ga. App. 653, 655 (377 SE2d 28) (1988). Here, defendants requested permission to file a counterclaim on the date of the hearing on Pierce Roofing’s motion for judgment on the pleadings.

Decided February 28, 1996.

Peter H. Strott, for appellants.

Robert E. Lanyon, for appellee.

Pierce Roofing contends the trial court considered the Kellys’ request to file a counterclaim at the hearing on the 28th. The Kellys contend the trial court “should have held a hearing to determine whether Appellants’ counterclaim was appropriate.” Since there is no transcript of the October 28, 1994 hearing, we are unable to determine whether or not the court considered the motion. In any event, there is nothing before us which shows any abuse of discretion by the trial court in denying this motion. Accordingly, we find this enumeration of error to be without merit. Nickerson v. Candler Bldg., 156 Ga. App. 396, 400 (274 SE2d 582) (1980).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


author: Blackburn, Judge.

text:
    A95A2805.
    CENTRUST MORTGAGE CORPORATION v. SMITH & JENKINS, P. C. et al.
    (469 SE2d 466)
   Blackburn, Judge.

CenTrust Mortgage Corporation (CenTrust) appeals the dismissal of an action it filed against its attorneys regarding a botched real estate closing.

On August 3, 1990, appellees Smith & Jenkins, P. C., Stephen Jenkins and Richard Smith (hereinafter collectively “Smith & Jenkins”) acted as the closing agents for a mortgage loan extended by CenTrust to John B. Webster. The loan transaction was a refinance of two existing mortgages secured by a home located in Fulton County (the “property”). Title to the property was to be completely transferred to Webster, and the closing was to be conducted pursuant to written closing instructions provided by CenTrust which required as a condition of the closing that Smith & Jenkins supply CenTrust with a valid first lien on the property. CenTrust seeks recovery against Smith & Jenkins for two errors allegedly committed in connection with the closing — one involving the title search and one involving the alteration of an already executed deed.

As to the first alleged error, the independent, non-lawyer title examiner working on behalf of Smith & Jenkins failed to detect that Webster had filed for bankruptcy protection approximately five weeks prior to the closing. As to the second alleged error, upon Webster’s representation that he presently owned the property jointly with his wife, Smith & Jenkins prepared a quitclaim deed whereby Mrs. Webster conveyed her one-half interest in the property to her husband. However, after Mrs. Webster signed the quitclaim deed, a review of the title search revealed that she was the property’s sole owner, and, thus, the quitclaim deed should have conveyed her entire interest in the property to Mr. Webster. Smith & Jenkins then changed the deed by “whiting out” the words “undivided half-interest.” Smith & Jenkins claim that this change was made with Mrs. Webster’s full knowledge and consent, an assertion that Mrs. Webster disputes.

CenTrust learned of Webster’s bankruptcy in December 1990, several months after the closing, when Webster defaulted on the loan and CenTrust commenced foreclosure proceedings. In July 1994, CenTrust brought the present action against Smith & Jenkins as well as American Title Insurance Company and Vista Title Company. CenTrust did not support its claims against Smith & Jenkins with an expert affidavit required in certain malpractice cases by OCGA § 9-11-9.1. In response to Smith & Jenkins’ motion to dismiss for failure to file the affidavit, CenTrust reformulated its complaint and argued that an affidavit was not required as its complaint against Smith & Jenkins was based on claims of simple negligence and breach of contract — not malpractice. The trial court disagreed with CenTrust, holding that regardless of how they were styled, CenTrust’s claims were effectively claims for professional malpractice. The trial court then dismissed the complaint against Smith & Jenkins for failure to attach an expert affidavit as required by OCGA § 9-11-9.1. CenTrust’s suit against the other defendants continued unaffected.

In March 1995, after this court denied CenTrust’s application for interlocutory review, CenTrust sought leave to amend its complaint so as to add Smith & Jenkins back into the lawsuit, asserting a new malpractice claim against them concerning the altered deed. CenTrust did not become aware of the alteration until December 1994 and argued that this was newly discovered evidence so as to permit the amendment. CenTrust supported its proposed amendment with an expert malpractice affidavit required by OCGA § 9-11-9.1. On May 15, 1995, the trial court denied CenTrust’s motion seeking leave to amend holding that the new claim was barred by the doctrines of res judicata and collateral estoppel as well as by the statute of limitation. This appeal ensued.

1. CenTrust first argues that the trial court erred in dismissing its initial claims against Smith & Jenkins for failure to file a malpractice affidavit. CenTrust correctly states: “Not every claim which calls into question the conduct of one who happens to be a lawyer is a professional malpractice claim requiring expert testimony or an OCGA § 9-11-9.1 affidavit.” Hodge v. Jennings Mill, Ltd., 215 Ga. App. 507, 508 (451 SE2d 66) (1994). However, expert testimony and an affidavit will be required for those claims “for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.” Id. This is such a claim. CenTrust attempts to argue that no professional malpractice could have occurred in performing the title search because Smith & Jenkins chose to assign the task to a non-lawyer. This fact is not determinative as a lawyer can be held liable in professional malpractice for work performed under his supervision. See Creel v. Cotton States Mut. Ins. Co., 260 Ga. 499, 500 (397 SE2d 294) (1990). Rather, the key question is did the task in question require the exercise of professional judgment and skill. See Hodge, supra. In this case, the title work did involve questions of professional judgment and skill. See Brown v. Kinser, 218 Ga. App. 385 (461 SE2d 564) (1995) (claim against closing attorney for deficiency in title examiner’s search was characterized as a legal malpractice claim). For example, a question exists as to whether a competent title searcher exercising the requisite standard of care would have looked at bankruptcy filings of the purchaser or whether he could properly limit his examination to filings made by the property’s grantor. Moreover, a question exists as to whether Webster’s bankruptcy filing was capable of being located or whether the bankruptcy notice was lost in the “gap” between filing and publication as alleged by Smith & Jenkins. The proper standard for conducting title searches and the violation thereof by Smith & Jenkins’ agent would need to be established for the factfinder by expert testimony. Consequently, the trial court correctly determined that these claims were, in essence, claims of professional malpractice, and were subject to dismissal in light of CenTrust’s failure to file an expert affidavit as required by OCGA § 9-11-9.1. See Hodge, supra.

2. CenTrust asserts that the trial court erred in not permitting it leave to amend its complaint against Smith & Jenkins. The trial court did not permit the amendment on the grounds that the issue concerning the alteration of the deed was precluded by the doctrine of res judicata. We agree with the trial court’s determination. Three elements are necessary to establish res judicata including: (1) the identity of the parties; (2) identity of the cause of action and (3) adjudication by a court of competent jurisdiction. McIver v. Jones, 209 Ga. App. 670 (434 SE2d 504) (1993).

In the present matter, the identity of the parties is not in question. As to the second issue, res judicata bars subsequent actions “as to all matters put in issue or which under the rules of law might have been put in issue” in the original action. (Emphasis supplied.) OCGA § 9-12-40. This requirement has been interpreted to mean that “ ‘one must assert all claims for relief concerning the same subject matter in one lawsuit and any claims for relief concerning that same subject matter which are not raised will be res judicata pursuant to OCGA § 9-12-40.’ ” Fowler v. Vineyard, 261 Ga. 454, 458 (405 SE2d 678) (1991) citing Lawson v. Watkins, 261 Ga. 147, 149 (401 SE2d 719) (1991). The subject matter of the present case concerns a real estate closing allegedly conducted in an improper fashion such that CenTrust did not receive clear title to the property in the event of the borrower’s default.

CenTrust asserts that the issue regarding the altered deed could not have been included in its original action as CenTrust did not learn about the altered deed until December 1994, several months after its suit was filed. We find this argument to be without merit. While this discovery was made several months after the suit was initiated, the discovery was made while Smith & Jenkins’ motion to dismiss was pending in the trial court. Even assuming, as CenTrust alleges, that Smith & Jenkins initially concealed that the deed had been altered, CenTrust could have easily amended its complaint in December 1994 upon learning of the alteration. OCGA § 9-11-15 (a). Instead CenTrust chose to wait several months, to pursue this claim. Clearly, CenTrust had the opportunity to pursue any claim concerning the altered deed earlier in the litigation, it simply chose not to. Consequently, CenTrust cannot now complain that it had no prior opportunity to litigate the issue. As to the third element, the dismissal of CenTrust’s initial malpractice complaint for failure to comply with the affidavit requirement of OCGA § 9-11-9.1 was made by a court of competent jurisdiction. Moreover, the dismissal was adjudication on the merits of the malpractice claim. Lutz v. Foran, 262 Ga. 819, 824 (427 SE2d 248) (1993). “In order that a judgment or decree should be on the merits, it is not necessary that the litigation should be determined on the merits, in the moral or abstract sense of these words. It is sufficient that the status of the action was such that the parties might have had their suit thus disposed of, if they had properly presented and managed their respective cases.” (Punctuation omitted.) Gamble v. Gamble, 204 Ga. 82, 88-89 (48 SE2d 540) (1948).

As the three elements necessary to demonstrate res judicata have been met, the trial court’s denial of CenTrust’s motion for leave to amend is affirmed.

Decided February 28, 1996.

Schweber, Izenson & Anderson, Scott A. Schweber, Barry L. Anderson, Weiss, Jensen, Ellis & Howard, John A. Bender, Jr., for appellant.

Wilson, Brock & Irby, Frank L. Wilson III, Smith, Ronick & Corbin, H. Robert Ronick, Robert T. Efurd, Jr., for appellees.

3. In light of our disposition in Divisions 1 and 2, it is not necessary to reach the other errors enumerated by CenTrust.

Judgment affirmed.

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

       CenTrust did not seek leave to amend its complaint until March 15, 1995, one day after this court denied CenTrust’s application for interlocutory review of the trial court’s decision to dismiss CenTrust’s original claims. Thus, it appears that CenTrust was looking for a theory that would keep Smith & Jenkins in the lawsuit. This is not the purpose nor the intent of OCGA § 9-11-15. See Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 606 (203 SE2d 173) (1973) (Georgia’s liberal amendment provisions should not be used to theory shop by parties dissatisfied with the outcome of their litigation).


author: Pope, Presiding Judge.

text:
    A95A2867.
    PETERS v. HYATT LEGAL SERVICES.
    (469 SE2d 481)
   Pope, Presiding Judge.

This is the second appearance of this legal malpractice, breach pf contract, breach of fiduciary duty, breach of statutory duty case before this court. See Peters v. Hyatt Legal Svcs., 211 Ga. App. 587 (440 SE2d 222) (1993). After a bifurcated trial, the jury awarded plaintiff Richard Peters $10,000 in nominal damages, $35,545.10 in attorney fees and expenses of litigation, and $175,000 in punitive damages against Hyatt Legal Services (Hyatt). The trial court granted Hyatt’s motion for judgment notwithstanding the verdict on punitive damages, and Peters appeals.

Richard E. Peters brought suit against Hyatt, Hyatt attorney Linda Gross and Hyatt legal assistant and notary public Kasonya M. Storey for damages resulting from Hyatt’s representation of Peters in an uncontested divorce action. Although defendant Gross died after Peters filed the complaint, she was aware that legal action had been threatened.

Peters and his former wife were married on July 2, 1986 and had one child. Both were enlisted personnel in the United States Army with Mr. Peters stationed in West Germany. In January 1988, Peters discovered his wife in bed with another man. Peters and his wife took steps to separate legally that same month. Counsel for Mrs. Peters in West Germany prepared a proposed settlement agreement which Mrs. Peters executed on June 24, 1988. However, Peters did not agree to the proposed terms and did not sign the agreement.

On October 14, 1988, Peters returned to the United States on military leave to obtain a divorce. He consulted Hyatt attorney Linda Gross, paying $222.50, half the total fee for an uncontested divorce. Peters signed a fee agreement with Hyatt and signed his name on the signature line titled “client.” Peters returned to duty in West Germany and expected the paperwork would be sent to him within 30 days, and that he would then receive a bill for the balance of the fee. He testified he told Gross if she provided him with 30 days’ notice he expected that he could obtain the military leave necessary to be present in court. When Mrs. Peters asked him about the status of the pending divorce, Peters provided her with the name and address of Gross. Although Peters told his wife he would send the remaining money to Hyatt, Mrs. Peters indicated to him she would satisfy the balance while she was in the United States later in the month. Peters testified he did not authorize his wife to consult with Gross, but only to pay the balance so the divorce could proceed.

In December 1988, Mrs. Peters paid the outstanding balance and Gross began representing her. Although Peters thought that Hyatt continued to represent him, Gross had no contact with him after his initial visit. Instead, Gross filed the complaint for divorce with Mrs. Peters as plaintiff on December 29, 1988, the day after Mrs. Peters went to Hyatt and paid the remainder of the fee. It is undisputed that the acknowledgment of service of the complaint dated December 29, 1988, contains a forged signature of Richard E. Peters, notarized by Kasonya M. Storey, a Hyatt employee. Nor is it disputed that the consent to final hearing dated December 29, 1988, witnessed by Linda M. Gross, the Hyatt attorney, contains a forged signature of Richard E. Peters.

The forged acknowledgment and forged consent were filed with the petition for divorce on December 29, 1988. A final judgment and decree was thereafter entered on January 31, 1989. After Peters discovered the divorce was final, he contacted Hyatt to find out what had transpired and Hyatt informed him that the file had been lost. Peters then obtained the paperwork directly from the court, discovered the forged signatures, and realized something was wrong.

1. Peters first contends that the trial court erred in granting j.n.o.v. on the issue of punitive damages. We agree.

(a) In Peters v. Hyatt Legal Svcs., supra, we previously determined summary judgment was not appropriate on the issue of punitive damages because a question of fact remained concerning “whether Hyatt has injured Peters as a result of that ‘entire want of care which would raise the presumption of conscious indifference to consequences.’ OCGA § 51-12-5.1 (b). See generally Powell v. Ferreira, 198 Ga. App. 465 (402 SE2d 85) (1991).” Peters, 211 Ga. App. at 593 (3). Consequently, our previous decision was and is the law of this case. See Starling, Inc. v. Housing Auth. of Atlanta, 170 Ga. App. 858 (318 SE2d 728) (1984).

Hyatt contends this court’s earlier ruling was not binding because the case was not in the same evidentiary and procedural posture. Hyatt presented a new witness, Scott Lang, who testified as to the audit procedure Hyatt utilized to discover internal problems. However, Lang was hardly a pivotal witness. He testified he did. not directly supervise Gross and was not her managing attorney. Moreover, Lang’s testimony failed to show that the so-called audit process detected the conflict problem at issue here.

(b) Even if we assume that the evidentiary and procedural posture had changed in a material way, in reviewing the grant of j.n.o.v. this court must construe the evidence in the light most favorable to the party who obtained the jury verdict. Pendley v. Pendley, 251 Ga. 30 (302 SE2d 554) (1983). The standard of review is whether there is any evidence to support the jury’s verdict. Lee v. Newman, 240 Ga. 483 (241 SE2d 241) (1978).

OCGA § 51-12-5.1 (b) provides that “[p]unitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” (Emphasis supplied.)

Peters presented the following evidence of Hyatt’s entire want of care from which the jury could have determined the evidence raised the presumption of conscious indifference to consequences. It is undisputed that the forged documents were at all times in Hyatt’s sole custody and control. It is undisputed that Hyatt represented adverse parties in a divorce proceeding without obtaining the informed consent of both. Peters presented evidence of a conflict of interest and breach of fiduciary duty. Mrs. Peters testified that the Army Legal Center refused to represent both her and her husband. Hyatt’s own expert testified he would not allow an attorney in his office to represent both parties to a divorce. Peters’ expert testified Gross’s conduct was “unethical,” “improper,” “illegal,” and constituted a breach of her agreement with Peters. Peters’ expert also claimed Gross had a duty to inform Peters of his case. Yet Peters testified that after he paid half the fee, Hyatt never sent him any paperwork or contacted him in any way. Peters also testified that when he returned stateside and contacted Hyatt he was told his file had been lost. Hyatt’s employee, Storey, admitted she sometimes notarized documents without people signing in her presence, a violation of the statutory duty imposed by OCGA § 45-17-8 (e). No evidence was presented that Hyatt’s so-called audit procedure properly detected the conflict problem. For the foregoing reasons, we reject Hyatt’s contention that there was insufficient factual evidence to support an award of punitive damages.

Hyatt argues that neither dual representation nor witnessing the forging of Peters’ signature supports the imposition of punitive damages because punitive damages are not allowed for violation of an ethical rule. Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C., 265 Ga. 374 (453 SE2d 719) (1995). However, Hyatt has distorted the holding of Allen. The Supreme Court held that standing alone, an alleged violation of the Code of Professional Responsibility or the Standards of Conduct cannot serve as a legal basis for a legal malpractice action. Moreover, evidence of even a potential conflict of interest is sufficient to raise a jury issue on punitive damages in a legal malpractice case. Read v. Benedict, 200 Ga. App. 4, 6 (2) (406 SE2d 488) (1991).

In order for a trial court to correctly grant a motion for j.n.o.v., there must be no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demanding a certain verdict. Hiers-Wright Assoc. v. Manufacturers Hanover Mtg. Corp., 182 Ga. App. 732 (2) (356 SE2d 903) (1987). In this case, construing the evidence in a light most favorable to the party who secured the jury verdict, we do not find that the evidence demands a verdict in Hyatt’s favor. B & C Tire &c. v. Cooper Tire &c. Co., 212 Ga. App. 228, 231 (441 SE2d 468) (1994). Accordingly, the trial court’s granting of j.n.o.v. on the issue of punitive damages must be reversed.

2. Peters also contends that the trial court erred by not considering punitive damages in determining his entitlement to prejudgment interest pursuant to OCGA § 51-12-14. Peters argues that the exclusion of said interest violates the plain statutory language and claims that the issue of prejudgment interest on punitive damages has not been judicially determined.

We disagree. In General Motors Corp. v. Moseley, 213 Ga. App. 875, 889 (447 SE2d 302) (1994), this court held, “The purpose of prejudgment interest is to compensate the injured party for the delay in receiving money damages. [Cits.] Punitive damages, however, are intended to punish, penalize, or deter a defendant, [cit.]. It follows that awarding prejudgment interest on punitive damages would not further the purpose of OCGA § 51-12-14 (a).”

A plaintiff is only entitled to prejudgment interest under OCGA § 51-12-14 (a) if the judgment for compensatory damages is for an amount not less than the amount demanded. In this case, in his statutory letter, Peters demanded $85,000 and the jury awarded $10,000 nominal damages and $35,545.10 attorney fees and expenses of litigation. Peters was not entitled to prejudgment interest because the amount demanded exceeded the amount the jury awarded, exclusive of punitive damages. Moseley, 213 Ga. App. at 889. Accord Martin v. Williams, 215 Ga. App. 649, 651 (451 SE2d 822) (1994).

Decided February 28, 1996

Calabro & Jennette, Michael M. Calabro, for appellant.

Goodman, McGuffey, Aust & Lindsey, William S. Goodman, Judy F. Aust, Powell, Goldstein, Frazer & Murphy, Richard C. Mitchell, Kathlynn L. Butler, for appellees.

Judgment affirmed in part and reversed in part.

.Beasley, C. J., and Ruffin, J., concur.

       The Hyatt Legal Services Fee Statement provided, “When half the total attorney fee and costs is paid, we will complete preparation of the paperwork. When your account is paid in full, we will file the case. This is not binding until you make a payment. Your signature allows us to represent you after payment is made.”


author: Ruffin, Judge.

text:
    A95A2193.
    ALLEN v. ROSCOE WESTON MOTELS GEORGIA, INC.
    (469 SE2d 492)
   Ruffin, Judge.

Susana Allen sued Roscoe Weston Motels Georgia, Inc. d/b/a Weston Savannah Motel and Convention Center (“Weston”) for injuries she allegedly sustained when she fell at Weston’s motel. The trial court granted Weston’s motion for summary judgment and Allen appealed. For reasons which follow, we reverse.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in that light, the facts in this case show that at approximately 9:30 on the evening of the accident, Allen was walking through a motel breezeway while returning to her room. She described the breezeway as “very dark” and stated that she “couldn’t see anything.” And, although there was a light in the breezeway, Allen stated it was a very pale, dim light that did not illuminate the area. Allen testified that immediately before she fell, she was paying attention to where she was walking and that she “was trying to get into the middle of the [breezeway] to avoid [some] stairs and . . . was looking to go through the [breezeway] to go to [her] room.” As Allen walked through the breezeway, she stepped on a raised area of the pavement, twisted her foot, lost her balance, and fell, sustaining the injuries for which she sued. According to Allen, there was less than a one inch rise in the level of the pavement at the location where she fell. Although the rise in the pavement was painted with a yellow line, Allen stated that she did not see the line before she fell and described the line as “yellow but very pale,” “almost invisible,” and “faded away.” Allen stated that she never walked through the breezeway before her fall.

In granting Weston’s motion, the trial court concluded that Allen and Weston had equal knowledge regarding the raised area and that Allen was not looking where she was walking when she fell. In reaching this conclusion, the court found that earlier in the evening before her fall, Allen “had passed similar raised pavement areas without harming herself . . . [and that w]hile there is some dispute over the amount of light in the breezeway on the evening [Allen] fell, there is no dispute over the fact that the breezeway was lit.” Finally, the court found that although the parties disagreed as to the brightness of the yellow paint, there was no disagreement that the paint was present.

“[U]neven pavement is a static condition which alone is not dangerous until someone steps on or in it. It is common knowledge that such defects often exist in pavement . . . and it has been held that where there is nothing to obstruct or interfere with one’s ability to see such a static defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved.” (Citations and punctuation omitted.) Papera v. TOC Retail, 218 Ga. App. 777, 778 (3) (463 SE2d 61) (1995).

In this case, there is a factual dispute concerning whether the darkness interfered with Allen’s ability to see the rise in the pavement. Although the trial court correctly found that there was no dispute that there was a light in the breezeway, the question of whether that light was sufficient to illuminate the rise in pavement is “a matter which the trial court should have submitted to the jury.” Hatcher v. City of Albany, 147 Ga. App. 843, 844 (1) (250 SE2d 537) (1978). See also Sacker v. Perry Realty Svcs., 217 Ga. App. 300, 301 (457 SE2d 208) (1995); Kreiss v. Allatoona Landing, 108 Ga. App. 427 (2) (a) (133 SE2d 602) (1963). As noted above, Allen maintained that the light did not illuminate the area at all. Weston’s response showing that there was a working light in the area did not dispute Allen’s testimony that the light did not illuminate the area.

Likewise, a factual issue remains concerning whether the yellow paint was sufficient to alert Allen as to the rise in the pavement. Allen testified that it was faded to the point that it was not visible to her before she fell. Weston did not dispute that the paint had faded but rather presented deposition testimony from one employee who stated that the yellow markings were repainted twice a year. Another employee stated that she did not recall any yellow markings in the breezeway. The mere fact that the paint was barely visible to Allen after her fall, when her face was perhaps only inches away from the pavement, does not establish that it was visible to her while she walked through the breezeway.

Decided February 29, 1996.

Don Smart, for appellant.

Freeman & Hawkins, Alan F. Herman, B. Rose Miller, Oliver B. Dickins, Jr., for appellee.

It also makes no difference that Allen had earlier passed similar raised pavement areas without harming herself. “It is true that a person who has successfully negotiated a dangerous condition on a previous occasion is presumed to have knowledge of it and cannot recover for resulting injuries. [Cit.] However, there is no evidence [Allen] ever negotiated this particular hazard. . . . ‘It is a plaintiff’s knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely [her] knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which [she] observes and avoids.’ . . . [Cit.]” (Emphasis in original.) Sacker, supra at 301-302.

Finally, the undisputed facts do not show that Allen failed to watch where she was walking at the time that she fell. Although she testified that she was looking for her room, she also testified that she was paying attention to where she was walking and that she “was trying to get into the middle of the [breezeway] to avoid [the] stairs. . . .” Looking for one’s motel room and watching where you are walking are not mutually exclusive. It follows that there remains a jury question as to whether Allen “ ‘use[d] her eyesight for the purpose of determining any discernible obstruction or defect in her path.’ . . . [Cit.]” Papera, supra at 779. See also Sacker, supra at 302.

For all the foregoing reasons, we conclude that the trial court erred in granting summary judgment to Weston.

Judgment reversed.

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


text:
    A95A2202.
    STAPLES et al. v. BHATTI et al.
    (469 SE2d 490)
   Pope, Presiding Judge.

In May 1989, plaintiff M. Wylene Staples (“Staples”) sought treatment from Dr. Sarwat A. Bhatti for an ailment unrelated to the present case. At that time Staples also requested a mammography examination, which was performed on June 1, 1989, at Henry General Hospital. Staples went to Bhatti for a follow-up visit on June 2, 1989, and Bhatti informed her that she had not yet received the mammogram results. It is undisputed that Bhatti subsequently received a written report of the mammogram results and that the report indicated the possibility of cancer. According to Staples, neither Bhatti nor her staff contacted her concerning the results, although Bhatti had informed her she would be notified if the mammogram revealed any abnormalities.

Several years later, in late March 1992, Staples discovered a lump in her breast while on a hunting trip. Staples returned early from her trip and immediately sought medical treatment, including a mammography examination which was performed in early April 1992. Staples also obtained a copy of the 1989 mammogram report, and according to her, learned for the first time that the report indicated the presence of breast cancer. The 1992 mammogram revealed an ill-defined mass measuring approximately two centimeters in diameter located in the spot “where there were clustered calcifications noted on the [1989] prior examination.” A biopsy revealed the mass was cancerous, and a modified radical mastectomy was performed on Staples’ right breast on April 14, 1992. The surgery and resulting pathology report revealed that the cancer in Staples’ breast had spread to one of her lymph nodes.

Staples and her husband James brought this medical malpractice and loss of consortium action against Bhatti and the Multispecialty Medical Surgical Center, P. C. on April 1, 1993, contending that Bhatti was negligent in failing to inform her of the 1989 mammogram results. Defendants moved for summary judgment, contending, inter alia, that plaintiffs’ cause of action was barred by the two-year statute of limitation contained in OCGA § 9-3-71. Plaintiffs attempted to amend their complaint, alleging that the statute of limitation was tolled by fraud. The trial court granted defendants’ motion, and plaintiffs filed the present appeal to this court.

1. We agree with plaintiffs that the trial court erred in granting summary judgment on Staples’ medical malpractice claim. OCGA § 9-3-71 provides that “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” “[T]he focus of OCGA § 9-3-71 (a) is not the date of the negligent act but the ‘consequence of the defendant’s acts on the plaintiff.’ Jones v. Lamon, 206 Ga. App. 842, 845 (426 SE2d 657) (1992).” Vitner v. Miller, 208 Ga. App. 306 (430 SE2d 671) (1993).

According to Staples’ expert, the injury occasioned by Bhatti’s alleged failure to inform Staples of her mammogram results occurred when the small cancer present in 1989 was allowed to grow in mass and to spread to Staples’ lymph node, increasing the risk the cancer would metastasize to other sites and increasing the risk that it would prove fatal to Staples. Although the precise time of this injury cannot be pinpointed, it is undisputed that Staples remained symptom-free until late March, when she began experiencing pain in her breast, which caused her to immediately detect the lump or mass. Suit was filed approximately one year later, well within the two-year limitation period for medical malpractice actions. The trial court thus erred in granting summary judgment on the basis that the suit was barred by OCGA § 9-3-71 (a). Zechmann v. Thigpen, 210 Ga. App. 726 (3) (437 SE2d 475) (1993); Vitner v. Miller, 208 Ga. App. at 307; Whitaker v. Zirkle, 188 Ga. App. 706 (1) (374 SE2d 106) (1988); see also Knight v. Sturm, 212 Ga. App. 391, 392 (1) (442 SE2d 255) (1994).

Decided February 29, 1996.

Freeman & Hawkins, Robert U. Wright, John H. Ridley, Jr., for appellants.

Harman, Owen, Saunders & Sweeney, David C. Will, for appellees.

2. However, we do agree with the trial court that summary judgment was proper on the fraud claim. See Craven v. Lowndes County Hosp. Auth., 263 Ga. 657, 660 (3) (437 SE2d 308) (1993); Rowell v. McCue, 188 Ga. App. 528 (373 SE2d 243) (1988).

Judgment affirmed in part and reversed in part.

Beasley, C. J., and Ruffin, J., concur.

       Although Bhatti contends she notified Staples of the results, as movant for summary judgment the evidence must be construed against her. Bynum v. Gregory, 215 Ga. App. 431 (1) (450 SE2d 840) (1994).