text:
    A90A2145.
    JOHNSON v. THE STATE.
    (398 SE2d 432)
   Deen, Presiding Judge.

A. J. Reed Johnson was convicted of entering an automobile and brings this appeal following the denial of his motion for a new trial.

1. Johnson first contends that the trial court erred in denying his motion to obtain the preliminary hearing transcript because it contained the exculpatory admissible evidence of a co-defendant who was now inaccessible.

Appellant contends that the transcript was admissible under OCGA § 24-3-10, and that he had attempted to secure the witness’ presence at trial by attempting to locate him at 2010 Red Drive, Apt. 3, Atlanta, Ga. 30315, an address that the witness gave the court when he was released on bond. All notices sent by the court were returned stamped “No such address.” No other attempts to locate the witness were made.

The party seeking to introduce testimony given at a prior trial must show that the witness is inaccessible. Riley v. State, 237 Ga. 124, 126 (226 SE2d 922) (1976). Whether a witness is inaccessible depends upon the diligence shown by the party seeking to use his testimony in ascertaining the witness’ whereabouts and the attempts made to bring him into court. Smith v. State, 247 Ga. 453, 454 (276 SE2d 633) (1981); Gaither v. State, 227 Ga. 668, 669 (182 SE2d 434) (1971). The sufficiency of the search is left to the sound discretion of the trial court, and its judgment will not be disturbed on appeal absent abuse. Gaither v. State, supra at 669; Thomas v. State, 192 Ga. App. 744 (386 SE2d 402) (1989). The trial court’s finding that appellant had not really done much to find the witness was not an abuse of its discretion. As the witness was determined not to be inaccessible, the court did not err in denying the defendant’s motion for a continuance so he could obtain a transcript of the preliminary hearing.

2. The only time that the prosecutor made an improper remark during closing argument, defense counsel raised an objection that the argument was not a fair commentary on the evidence. The court instructed the jury that whether or not they had been crime victims had nothing to do with the case. Counsel did not raise further objection and made his motion for a mistrial after the jury charge. On appeal he contends that it was error for the court to overrule his motion for a mistrial.

To preserve this issue for appellate consideration, appellant was required to make a motion for a mistrial, request the court to give curative instructions, and then renew the motion. Livingston v. State, 193 Ga. App. 502, 503 (388 SE2d 406) (1988). A motion for a mistrial must be made contemporaneously with the alleged misconduct or it is not timely. Miller v. State, 184 Ga. App. 202 (361 SE2d 63) (1987). As appellant followed none of the requisite procedures in making his motion for a mistrial, the issue has not been preserved for appellate review.

3. The trial court did not improperly comment on the evidence during the jury charge when the judge noted that the jury might be confused by a statement made during argument that there was a possibility that the defendant was not telling the truth. The judge explained that they were not to determine the case “on whether there was a possibility that the defendant may be telling the truth. You are looking at this from the standpoint of whether or not the state or whether or not the evidence shows beyond a reasonable doubt that the defendant is guilty of this offense. That means then arguments can be made that anything is possible, but you are looking for what has been proven to you beyond a reasonable doubt, you see, not beyond all other possibilities.”

Decided October 25, 1990.

Jonathan J. Wade, for appellant.

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

This portion of the charge does not comment on the evidence as alleged by the defendant, but rather fully explains the quantum of proof required for conviction. We find no error.

Judgment affirmed.

Pope and Beasley, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A90A0909.
    NORTH GEORGIA ELECTRIC MEMBERSHIP CORPORATION v. CITY OF DALTON.
    (398 SE2d 209)
   Birdsong, Judge.

The North Georgia Electric Membership Corporation (NGEMC) filed a petition before the Georgia Public Service Commission to enjoin Dow Chemical Company from obtaining electrical power from another supplier, appellee City of Dalton, Georgia, to Dow’s new styrofoam plant adjacent to the Dow latex facilities already serviced by NGEMC. The arguments presented by NGEMC include its posture as having been the sole supplier for the territory wherein Dow’s operations are situated; and the contention that the subject area is part of a “municipality” as defined in OCGA § 46-3-3 (5) (A) known as “Industrial City” and chartered by Act of the General Assembly and signature of the governor on May 29, 1973, and therefore NGEMC is the only eligible supplier for that “municipality”; and that Industrial City is not a “wholly new municipality” coming into existence after May 29, 1973 so as to allow other suppliers to operate therein. See OCGA § 46-3-3 (13).

Principally, however, NGEMC contends that whether, in fact, Dow Chemical had the right to elect among several electrical suppliers pursuant to any interpretation of the statutes just cited, nevertheless Dow Chemical did choose NGEMC as its electrical power supplier by a written request and series of correspondence, resulting in a purchase order and actual performance of NGEMC in laying the facilities to supply the power.

The PSC ruled against NGEMC on the questions of eligibility of other suppliers, and found from the evidence of the letters, correspondence, and acts of the parties, that “[i]t was not Dow’s intent to choose [NGEMC] as its electric supplier for the new facility. While an exchange of letters can constitute a contract, the letters do not make reference to the selection of an electric supplier but rather make reference to the selection of [NGEMC] as an electrical contractor. It is therefore found as a matter of fact that Dow Chemical did not choose [NGEMC] as its electric supplier for the new styrofoam facility.”

The PSC’s rulings constitute findings that the subject letter or agreement of Dow and NGEMC was directed only upon the constructing or laying of facilities for the carriage of power, and not for the supplying of electrical power.

The Superior Court of Fulton County affirmed the ruling of the PSC, and NGEMC appeals. Held:

The PSC ruled that in the facts of this case Industrial City was not a “municipality” within the meaning of OCGA § 46-3-3 (5) (A), and concluded that Industrial City was a “wholly new municipality” within the meaning of § 46-3-3 (13). Assuming arguendo the correctness of this ruling, so that NGEMC was not the sole eligible supplier of electricity for Dow’s new styrofoam plant and Dow could thus choose among several bidding suppliers, this case nevertheless must be reversed.

The PSC erroneously applied the rules of legal construction to the correspondence and actions of appellant NGEMC and Dow. Clearly Dow and NGEMC did assent to contract for the supplying of electrical power and not merely for the “construction of facilities” for the conduction of power. The legal test for mutuality of assent to contract or meeting of the minds requires the application of “an objective theory of intent whereby one party’s intention is deemed to be that meaning a reasonable man in the position of the other contracting party would ascribe to the first party’s manifestations of assent, or that meaning which the other contracting party knew the first party ascribed to his manifestations of assent.” (Emphasis supplied.) Cox Broadcasting Corp. v. Nat. Collegiate &c. Assn., 250 Ga. 391, 395 (297 SE2d 733).

The initiating letter from an Ohio division office of Dow to NGEMC written April 10, 1987, stated: “I am writing you at the suggestion of Mr. David Creekmore, your representative to the Dow Chemical Company Dalton Plant. . . . Dow plans to construct a new process facility at the Dalton location which will require installation of [two new transformers]. ... To supply the two new transformers, we would like to tap into the existing 12.47 KV line and run overhead to a pole located in the proximity of the transformers. [Specifications deleted.] [C]ables would be run down the pole and underground to the transformer primaries. . . . As in the past, it is felt that the most expeditious approach to providing primary power to these transformers would be to engage your organization for these services, using your standard practices and specifications with the right of review prior to construction. . . . Present scheduling calls for energizing the transformers at the end of October 1987 and gradual ascension to full load at the end of March 1988. [Specifications query deleted.] I would appreciate being advised of the following ... 1. Are there any objections to the proposed method of supplying power to the transformers. ... 2. Is your organization in a position to undertake the construction of the primary supply from the point of connection at existing 12.5 KV line to connections to the transformer primaries, supplying the labor, materials and equipment required, within the time frame indicated above [?] [Specifications query deleted.] Yours very truly, Joseph P. Lacey, Electrical Engineer [Dow].” (Emphasis supplied.)

NGEMC promptly replied to Mr. Lacey of Dow in Ohio: “There is no objection to the method of supplying power to the two new banks [as you specified]. . . . NGEMC would work with Dow in any way possible in doing this project. . . . NGEMC would do all the overhead work and make the UG connections. I feel that NGEMC, working with your contractor, could make the October 1987 deadline. I would like to ascertain the fact that all new transformers installed be dual voltage, since this area will be 25KV shortly. [Specification reply deleted.] Sincerely, Richard Berryhill, System Engineer.” (Emphasis supplied.)

Thereafter, on April 20, 1987, Mr. Lacey of Dow wrote Mr. Berryhill of NGEMC: “Thank you for your letter of April 14. . . . Mr. Creekmore . . . indicated that it was your practice to [install specified equipment]. . . . Attached [are data for proposed equipment]. ... If acceptable to you, this is the device which Dow would furnish for installation by NGEMC [otherwise] a comparable switch . . . should be included in your part of the work. As the delivery time on this item is 16-18 weeks, I would appreciate your views as soon as possible. . . . [Further specifications deleted.]. . . Sincerely, William Lacey.”

Dow then issued to NGEMC a series of purchase orders, and NGEMC laid and constructed the facilities for conduction of power as far as it was able pending Dow’s completion of its part of the work.

But, on October 5, 1987, Dow sent NGEMC a letter asking for quotations of power rates, and stating: “If acceptable quotations are received, Dow will award contract by October 15, 1987.”

Thereafter, Dow awarded to the City of Dalton a contract for the supplying of power. The City proceeded to construct more than seven miles of line from Dalton to Dow’s plant; Dow disposed of the two transformers Dow had purchased to connect to the 12.47 KV line through which NGEMC supplied primary power to Dow’s latex facilities.

NGEMC had in the past performed construction and repair of facilities by purchase order for Dow, but obviously this was always in connection with power supplied by NGEMC to Dow’s latex plant on Dow’s existing 12.47 KV line, for it is conceded that NGEMC was the sole supplier of power to Dow until the present time. Therefore, the fact that purchase orders appear to refer to construction and not to supply of power, does not prove Dow never intended NGEMC to supply the power, or negate its request to assent to NGEMC’s supplying the power.

According to certain ordinary facts, the inquiries and correspondence of Dow can allow but one patent conclusion: that it would, and intended to, “tap into” NGEMC’s primary power source being then supplied by NGEMC on Dow’s existing 12.47 KV line; and to connect its transformers so as to transform power directly into the plant from NGEMC’s primary power source. Dow’s initial letter stated unequivocally that it intended to tap into the main power line through which NGEMC supplied power, to provide power to Dow’s transformer, and “the most expeditious approach to providing primary power to [our] transformers would be to engage your organization for these services. . . . Are there any objections to the proposed method of supplying power to the transformers?” There is no reasonable objective meaning in this language except that Dow intended and requested to extract primary power from the existing line, through which power was supplied by NGEMC, straight to its transformers leading to the plant, and intended to use NGEMC’s methods and that power line to supply power to the plant. Why would Dow ask for, and specifically issue purchase orders for, construction of a power line from the primary power source supplied by NGEMC to Dow’s transformers, if not to obtain power from that line? Dow requested the line be built from the primary power source supplied by NGEMC to its transformers, and watched NGEMC perform the physical construction necessary to conduct that power and to “energizfe] the transformers at the end of October and [gradually ascend] to full load at the end of March 1988.”

It is not objectively or subjectively reasonable for any party to imagine that all this language, and this undertaking of building lines from the primary line to which power was supplied by NGEMC, were mere whimsical exercises to construct lines that would perhaps never be used. Nor is it reasonable to imagine, as appellant seeks to persuade and as the PSC found, that after NGEMC built all this “construction” and “facilities” of a line from the 12.47 KV line, to which power was supplied by NGEMC, some other supplier might be allowed to tap into the line supplied by NGEMC at that end point and then be called the “supplier?” Obviously these are not reasonable premises, for the City of Dalton could not have used the facilities without paying NGEMC for the power coming from the primary power 12.47 KV line, and in fact proceeded to build its own line.

Without saying too much by way of making factual conclusions, we think that even without the specific reference to NGEMC’s ‘‘supplying primary power, etc.,” the position taken here by appellee, to wit, that NGEMC was merely asked for and paid to build useless power lines, is untenable. In fact, Dow’s letters and manifestations of assent clearly refer to the construction of facilities as a necessary and exclusive preliminary to the only objective result: that NGEMC was being asked to supply the power through the lines it was asked to build.

Even Dow’s witness admitted that a fair reading of Mr. Lacey’s April 10, 1987, letter would be that Dow wanted and intended NGEMC appellant to serve the styrofoam plant; and this could only mean NGEMC was to supply power, for that is all that could be conducted on those lines, and NGEMC is the only supplier that was conducting power on the existing 12.47 KV line.

We must conclude that the “objective intent” standard of “a reasonable party’s understanding” propounded in Cox Broadcasting Corp., in ascertaining mutual assent in a contract, was not correctly employed in this case. While the PSC concluded that Dow “never made reference to the selection of an electrical supplier” (emphasis supplied), application of these standards in the Cox Broadcasting case lead inexorably to the conclusion that Dow was, in fact, referring to nothing else. And for that matter, Dow never, until after NGEMC’s substantial performance of constructing the lines, suggested it might choose another supplier and that thus NGEMC’s building would amount to nothing.

We have no disagreement with any policy consideration exercised by the PSC in concluding that Dow could choose among suppliers, but we think the evidence here tends to show the reasonable party can only conclude that Dow did choose. The matter must be viewed from the legality of the contract principles involved; policies favoring freedom to compete and to choose a utilities supplier do not contravene ordinary contract law by allowing the consumer to solicit, assent, agree, and obtain substantial performance under mutual contract and then change its mind.

The evidence in this case as to the letters and actions of the parties must be examined again, or put to the jury if appropriate, under the “reasonable understanding” standard of Cox Broadcasting Corp., supra. This issue cannot be decided by a subjective announcement that “Dow had no intent,” if the objective evidence reasonably shows it did. Cox Broadcasting Corp., supra.

Judgment reversed and case remanded for reconsideration.

Banke, P. J., and Cooper, J., concur.

On Motion for Rehearing.

North Georgia Electric Membership Corporation (NGEMC) has filed a Motion to Revise, asking this court to hold as a matter of law that Dow Chemical contracted with NGEMC to supply power to its new styrofoam plant, based on the letters of contract exchanged between Dow and NGEMC. City of Dalton has filed a Motion for Rehearing, insisting this court’s ruling cannot stand because it is contrary to the PSC’s finding of fact that Dow had no intent to contract with NGEMC to “supply power.” The PSC’s finding of fact that Dow had no (subjective) intent to contract with NGEMC to supply power cannot be sustained where, in so finding, the PSC employed an erroneous standard of law. It is a purely circular contention for the appellee to urge that a “fact” found by the PSC on an error of law can control or supersede a ruling on appeal that an error of law was employed in the finding of the “fact.”

We held that the letters exchanged between Dow and NGEMC, when examined under the test clearly set forth in Cox Broadcasting Corp. v. Nat. Collegiate &c. Assn., 250 Ga. 391, 395 (297 SE2d 733) lead to no reasonable conclusion except that Dow Chemical requested NGEMC to build facilities to supply power to its styrofoam plant and to supply power via those facilities.

According to the Supreme Court in Cox Broadcasting, supra at p. 395, “In determining if parties had the mutual assent or meeting of the minds necessary to reach agreement, courts apply an objective theory of intent whereby one party’s intention is deemed to be that meaning a reasonable man in the position of the other contracting party would ascribe to the first party’s manifestations of assent, or that meaning which the other contracting party knew the first party ascribed to his manifestations of assent.” According to one of Dow’s own executives, these letters would evince to the reasonable man the intent to request NGEMC to supply power, and, according to the evidence, Dow observed NGEMC construct the facilities up to the point of full compliance on the part of NGEMC except for “throwing the switch,” waiting only for Dow to install the specified transformers leading directly to its plant.

We rejected in the opinion, and reject again, the appellee’s argument that the letters only requested NGEMC to “construct facilities.” The letters did request NGEMC to “construct facilities,” but this was in the context of NGEMC’s supplying power via those facilities. It is unreasonable to argue otherwise, especially since it is not suggested that anything could be done with those facilities except to obtain the power from NGEMC, and since the, evidence does not show NGEMC ever built facilities for Dow except for and in connection with the supplying of power by NGEMC.

Decided September 4, 1990

Rehearings denied October 26, 1990

James C. Brim, Jr., Robert C. Richardson, Jr., Kinney, Kemp, Pickett, Sponcler & Joiner, L. Hugh Kemp, for appellant.

McCamy, Tuggle, Rollins & Fordham, Carlton C. McCamy, Mollie F. Glitsis, Michael J. Bowers, Attorney General, for appellee.

The case was remanded to the PSC for examination consistent with our ruling as to the objective meaning of the letters pursuant to Cox Broadcasting. While the letters evince no reasonable objective meaning except that Dow intended to and did request and agree with NGEMC to supply power to Dow’s new plant, the PSC may determine whether there is extrinsic evidence mitigating or negating the enforceability of a contract. Cox Broadcasting, id. For example, the City of Dalton asserts it is “understandable” that NGEMC does not want the PSC to reexamine this evidence, because when NGEMC negotiated the agreement with Dow, “NGEMC did not advise Dow of its rights to choose a different supplier than NGEMC for the styrofoam plant. ...” This is a matter unrelated to the issues in their present posture, but clearly if the appellee intends to suggest and if the PSC finds there was a legal duty upon NGEMC to “advise” Dow of Dow’s right to choose a different supplier, or if the PSC finds that NGEMC misled Dow in violation of some clear legal duty, then the case may be reexamined as to whether the contract between NGEMC and Dow was enforceable as it stood. Any such legal decision by the PSC will be reviewable. The posture of this appeal, however, is such that we can only rule that a contract did exist between Dow and NGEMC for the supply of power, and that unless some prepossessing fact renders this contract unenforceable, the choice made by Dow via these letters with NGEMC is binding, consistent with the PSC’s interpretation of the Territorial Act. See Jackson Elec. &c. Corp. v. Ga. Power Co., 257 Ga. 772, 773 (364 SE2d 556).

Motion for rehearing denied.


author: Banke, Presiding Judge.

text:
    A90A1419.
    T. J. MORRIS COMPANY v. DYKES.
    (398 SE2d 403)
   Banke, Presiding Judge.

As the appellee, who owns and operates a grocery store, was helping to unload a shipment of food from a delivery truck belonging to the appellant, which is in the wholesale food business, two boxes of frozen meat weighing approximately 70 pounds each fell from the truck, striking him on the back and neck. He brought the present action against the appellant to recover for his resulting injuries. The case has been tried twice. The first trial resulted in a defense verdict, following which the appellee-plaintiff moved for and was granted a new trial. The second trial resulted in a verdict in favor of the appellee in the amount of $130,000. The trial court denied the appellant’s subsequent motion for new trial, and the present appeal followed. Held:

1. The appellant contends that the trial judge erred in refusing to exclude certain hearsay testimony offered by the appellee and two other witnesses recounting certain statements assertedly made to them by the appellant’s driver regarding why the boxes had fallen.

The appellee was standing on the ground when the accident occurred, attempting to lift a box of frozen chicken from the bed of the truck onto a dolly. As he was doing so, a stack of approximately seven other boxes of frozen meat inside the truck began to fall over. According to the appellee, the appellant’s driver, who was standing on the bed of the truck at the time, placed his back against the boxes in an attempt to hold them in place, but the two on top were stacked above his head and consequently slid down despite his efforts. Afterwards, the two men finished unloading the truck and went inside the store, where the driver telephoned his employer to report the incident. The appellee testified that after the driver completed this call he asked him what had happened, and the driver told him that “they had placed [a] beef box in betwixt the chickens and the beef box had collapsed.” In subsequent testimony, the appellee maintained that the beef boxes were not as sturdy as the chicken boxes and that, unlike the chicken boxes, they were not always filled to the top.

The appellee produced two other witnesses who testified that the driver had made similar statements to them regarding the cause of the accident. The first was a woman who had begun working at the store approximately two months after the accident but who was no longer employed there at the time of trial. She testified that approximately a year after the incident, the appellant’s driver told her that the reason the stack of boxes had fallen was because the appellant’s employees “had put the beef box in the middle in between the chicken boxes and . . . the beef box wouldn’t hold up to the pressure of the chicken boxes.” The second such witness, who had owned another grocery store in the area at the time of the accident, testified that the appellant’s driver similarly told him that “one of the boxes . . . toward the bottom [of the stack had] crushed.” However, the driver was called as a witness by the appellant and denied ever having told anyone that he “thought there was something wrong about stacking a chicken box on top of a beef box.”

The appellant contends that all of this testimony regarding the out-of-court statements assertedly made by the driver should have been excluded as inadmissible hearsay, arguing that the statements could not be considered part of the res gestae of the accident because they were not made contemporaneously therewith or under such circumstances as to render them “free from all suspicion of . . . afterthought” within the contemplation of OCGA § 24-3-3, and that they could not be considered admissions by an agent imputable to the principal under OCGA § 24-3-33 because the driver was not shown to have been acting within the scope of his authority as an employee when he made the statements. See Gordon v. Athens Convalescent Center, 146 Ga. App. 134 (1), 135 (245 SE2d 484) (1978). While we tend to agree with the appellant that neither of these exceptions to the hearsay rule was applicable under the circumstances, we nevertheless conclude, for the following reasons, that the testimony was admissible.

“The hearsay definition in [OCGA § 24-3-1] speaks of rejecting hearsay because its probative value does not rest on the credit of the witness reporting it. This statement has been interpreted to mean that credit is established only after a statement has been subjected to cross-examination, and an out-of-court statement which is not subjected to cross-examination generally has insufficient credit to be admissible. The writers in the field of evidence and the courts generally agree that the lack of opportunity for cross-examination is the one most cogent reason for rejecting hearsay.” Green, Ga. Law of Evidence (3d ed.), § 219, p. 394. Accord Shelton v. Long, 177 Ga. App. 534 (1) (339 SE2d 788) (1986).

The appellant did, of course, have an opportunity to examine the declarant in the present case, since the declarant was present in court and in fact testified regarding what he had seen and whether he had made the statements attributed to him. Moreover, the reliability of the testimony offered by the appellee and the other two witnesses in this regard was enhanced by the fact that all three of them reported having heard the declarant say essentially the same thing. Because the declarant was present in court and because the testimony of these witnesses was thus corroborated, we hold that the trial court did not err in admitting it.

2. The evidence offered by the appellee, construed in favor of the verdict, was sufficient to support an inference that the accident had been caused by the negligence of the appellant’s employees in failing to stack the boxes on the truck in a stable and secure manner. Accordingly, the trial court did not err in denying the appellant’s motion for directed verdict.

3. The appellant complains that the jury was given an erroneous charge on the definition of negligence. The court’s charge in this regard was as follows: “Now every person in our state or every corporation or firm or collection of individuals owes to every one else a duty not to harm those persons. . . . This is an affirmative legal duty, it is imposed by law, it goes with us by day and by night in all things. And so in [this] case the allegation is that where there was a duty on the part of [the appellant] not to injure [the appellee], yet it has done so. Not by criminal acts, that is not brought in here, nor by any claim or moral wrong doing[, b]ut by negligence. . . . Now simple negligence is easy to state. It is either doing what the law itself says should not be done which results in the injury or damage of someone, or simple negligence is a failing to do, that is an omission to act in such way that did bring about by such omission, such damage or injury.”

We must agree with the appellant that this charge was deficient in that it implied that negligence is the breach of an absolute duty to avoid injuring others rather than a failure to exercise “that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances.” OCGA § 51-1-2. See generally Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol. 1: Civil Cases (2d ed.), p. 288. The court’s failure to give a correct charge on this fundamental principle must, of course, be considered reversible error.

4. The appellant contends that the court also gave an erroneous charge on the issue of proximate cause as follows: “The term proximate cause comes up. Now this word proximate ... is not the same as the word approximate. . . . [T]he word proximate ... is a different word entirely, it’s a legal term and we encounter it here and it has to do with nearness, that is what is in proximity, you see, or closeness or nearness to a thing. Now proximate cause becomes clearer when we see this principle involved. If the [appellant] was negligent... in one or more of the ways alleged by the [appellee], and if that is proven to you to have occurred by a preponderance of the evidence, then you look to another link in the chain leading toward the answer to the question for liability or not, and that is whether such negligence proximately caused injuries to the [appellee]. Was the action of the company near in terms of causation. It doesn’t have to be near in terms of time, although time and time intervals may be considered by you, whatever the evidence is. It does not have to be near in physical terms though those things can be included but we are really talking about proximate cause meaning that which is nearest in terms of cause to what happened. So you understand the word proximate as it is used here, meaning proximity or having to do with proximity or nearness to that which happened.”

In addition to being confusing, these instructions failed to convey the fundamental principle that “proximate cause is that which, in the natural and continuous sequence, unbroken by other causes, produces an event, and without which the event would not have occurred.” See Locke v. Vonalt, 189 Ga. App. 783 (7), 788 (377 SE2d 696) (1989). See also Suggested Pattern Jury Instructions, supra, p. 286. Accordingly, we hold that this portion of the court’s charge also constituted reversible error.

5. The appellant contends that it was entitled to a charge on comparative negligence because the evidence showed “that [the appellee] had been in the business of loading and unloading delivery trucks for over 20 years and that he was in as good a position as the truck driver to determine risks.” However, there was no evidence whatever that the appellee knew or should have known that the boxes which fell on him had not been stacked securely, nor was there any evidence suggesting that he otherwise failed to exercise reasonable care for his own safety. Accordingly, this enumeration of error is without merit.

6. The appellant contends that the trial court erred in charging the jury that they could consider the appellee’s “out of pocket business losses” as an element of damages when there was no evidence to support such an award of damages. While the appellee does not dispute that he failed to present evidence from which an award of such damages could have been calculated, he contends that this charge could not have harmed the appellant because the court emphasized to the jury such damages could not be recovered “if they are speculative, if they require guessing.” Since the judgment of the trial court is being reversed on other grounds, we need not reach the issue of whether the charge was harmful; however, we caution that such a charge should not be given upon any retrial of the case unless evidence has been presented which would support a recovery of such damages.

7. The appellant contends that the court erred in refusing to charge the jury that the appellee could not recover for his injuries to the extent that he could have lessened them by obtaining prompt medical treatment or following sound medical advice. The evidence showed that the appellee put off seeking medical treatment for approximately a year before ultimately undergoing shoulder surgery for a torn rotator cuff. However, there was absolutely no evidence from which it could be inferred that such surgery would not have been necessary had he sought medical treatment sooner, nor was there any showing that he could have lessened his injuries by following medical advice. Furthermore, an examination of the transcript reveals that the court in fact charged the jury that if the appellee “could have reduced [his] injuries or the results of these injuries, or the degree of these injuries or pain and suffering or losses, then he would have a duty to exercise ordinary care and caution to reduce and as far as possible, to minimize such losses and damages.” See generally OCGA § 51-12-11. Accordingly, this enumeration of error is wholly without merit.

Decided October 11, 1990

Rehearing denied October 26, 1990

Adams, Gardner, Ellis & Inglesby, Ronald C. Berry, Robert B. Turner, for appellant.

D. Duston Tapley, Jr., for appellee.

8. The appellant contends that the trial court erred in allowing the videotaped deposition of the appellee’s treating physician to be played to the jury, without first requiring the appellee to make a showing of the witness’ unavailability in accordance with OCGA § 9-11-32 (a) (3). As the trial court has the discretion under OCGA § 9-11-32 (a) (4) to permit a deposition to be used at trial even without a showing of the witness’ unavailability, this enumeration of error is also without merit. See Atlanta Coca-Cola Bottling Co. v. Rosser, 250 Ga. 52 (295 SE2d 827) (1982).

9. The appellant’s remaining enumerations of error will not be addressed because they concern matters which are unlikely to occur upon any retrial of the case.

Judgment reversed.

Birdsong and Cooper, JJ., concur.


author: Cooper, Judge.

text:
    A90A0993, A90A0994.
    MORGAN v. THE STATE (two cases).
    (398 SE2d 866)
   Cooper, Judge.

Appellant entered guilty pleas to charges under two indictments. On one indictment (case no. A90A0993) he pled guilty to robbery, OCGA § 16-8-40 (a), and aggravated assault, OCGA § 16-5-21 (a) (2), and received the maximum sentence for each offense, two twenty-year sentences, to be served concurrently. On the second indictment (case no. A90A0994) he pled guilty to making terroristic threats, OCGA § 16-11-37 (a), and was given a one-year sentence, the minimum penalty for the offense, to run concurrently with the earlier sentence. He contends on appeal that the sentences were so disproportionate in relation to the facts of the cases as to amount to cruel and unusual punishment.

“This court is not empowered to modify a sentence which is within the statutory limits for the offense. [Cits.] ‘ “Any question as to the excessiveness of [the] sentence [s], which in this case [were] within the legal limits, should be addressed to the appropriate sentence review panel.” [Cit.]’ ” Gordon v. State, 190 Ga. App. 414 (1) (379 SE2d 221) (1989).

Decided October 26, 1990.

Bennett, Wisenbaker & Bennett, C. Richard Williams, Jr., for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A90A1518.
    BROWN v. THE STATE.
    (398 SE2d 434)
   Cooper, Judge.

Appellant, convicted by a jury of aggravated assault appeals from the denial of his motion for new trial.

Evidence adduced at trial showed that appellant went to the residence of his former girl friend at approximately 8:00 one morning. When no one answered appellant’s knock at the door, he climbed along the side of the house, entered the house through an upstairs window, and found his former girl friend and the victim in the bedroom. Appellant began arguing with the victim and as the victim left the house, appellant and several of his friends chased the victim. When appellant subsequently caught up with the victim, appellant shot the victim three times in his right leg.

1. Appellant first contends that the verdict was contrary to the evidence. We find that the evidence was sufficient to authorize a rational trier of fact to find appellant guilty of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his second and third enumerations of error, appellant contends that the trial court erred in refusing to give his requested charges on reckless conduct and pointing a pistol at another. A person is guilty of reckless conduct who “causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. . . .” OCGA § 16-5-60. Appellant testified that he first shot at the victim when the victim ran towards him; that he shot the victim the second time because he appeared to be reaching for something; and that he did not recall shooting the victim the third time. Because appellant did in fact intend to shoot the victim, “ ‘[t]he act testified to by appellant was either justified as an act of self-defense or constituted a felony.’ [Cit.]” Riley v. State, 181 Ga. App. 667 (3) (353 SE2d 598) (1987). Accordingly, we find no error in the trial court’s refusal to give appellant’s requested charges.

Decided October 26, 1990.

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Lars T. Granade, Assistant District Attorney, for appellee.

For the foregoing reasons we conclude that the trial court did not err in denying appellant’s motion for new trial.

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    A90A2096.
    NORTHEAST ATLANTA SURETY COMPANY et al. v. STATE OF GEORGIA.
    (398 SE2d 435)
   Deen, Presiding Judge.

This is an appeal from the forfeiture of a bond. On August 19, 1988, appellant, Northeast Atlanta Surety Company (Northeast), entered upon the bond of Alphonso Curry (defendant) in the Fulton County Superior Court in the amount of $2,550 for violation of the Georgia Controlled Substances Act and unlawful possession of a firearm. When the defendant failed to appear, the court ordered the bond forfeited on December 1, 1988, and ordered the defendant and Northeast to show cause why final judgment should not be entered on the forfeited bond at an execution hearing on February 16, 1989. After the defendant failed to appear and was not produced by Northeast at the execution hearing, the court entered a final judgment of forfeiture on the bond on February 16, 1989, in the amount of $2,550.

Northeast filed a motion to vacate the final judgment on April 13, 1990. The court denied the motion to vacate by order dated May 14, 1990. Thereafter, we granted Northeast’s application for discretionary appellate review. Northeast asserts the trial court erred by entering final judgment on the bond forfeiture, and later refusing to vacate that judgment, because at the time the judgment was entered, the defendant was incarcerated in the DeKalb County Jail on an unrelated charge. Held:

In Sunrise Bonding Co. v. Busbee, 165 Ga. App. 83, 84 (299 SE2d 153) (1983), this court recognized the rule originating in Buffington v. Smith, 58 Ga. 341 (1877): “When the principal [defendant] in a criminal recognizance, conditioned for his appearance to answer a specific criminal charge therein designated, is thereafter arrested before judgment is executed on the bond for an entirely different crime and remains in the custody of the state, the sureties on the bond are released. This release arises from the sureties’ inability to produce their principal to answer the charge caused by the state assuming custody of their principal to which they were theretofore entitled.” Accord Cooper v. Brown, 10 Ga. App. 730 (73 SE 1101) (1912). It is undisputed that the defendant was incarcerated in the DeKalb County Jail on an unrelated charge during the period December 12, 1988, through March 20, 1989, and that the court was unaware of this fact when it entered final judgment on February 16, 1989. The defendant was subsequently surrendered to the Fulton court, where on March 30, 1989, he entered a guilty plea and was sentenced on the controlled substance charge. The firearms charge was dead docketed. Nevertheless, on similar facts in Sunrise we affirmed the trial court’s refusal to set aside the final judgment because there was no evidence that the motion to set aside the judgment was predicated upon a non-amendable defect appearing on the face of the record or pleadings, which was the only basis, aside from jurisdictional grounds, upon which the surety could seek to have the judgment set aside under the then existing version of the statute. Ga. L. 1974, p. 1138, § 1 (current version at OCGA § 9-11-60 (d)).

As noted in Sunrise, the fundamental rules for seeking relief from judgments apply. Northeast seeks relief from the judgment on the basis that the defendant was held by the State in the DeKalb County Jail when judgment was entered, which prevented it from producing the defendant. Nothing in the record or the pleadings indicates that Northeast informed the court that the defendant was incarcerated elsewhere or that the court otherwise knew this fact prior to the entry of final judgment. Since at the time judgment was entered no credible evidence had been presented which would nullify the effect of the bond, the final judgment was valid on its face when rendered. Ace Bonding Co. v. State, 180 Ga. App. 261, 263 (349 SE2d 15) (1986); Sunrise, supra at 84. However, Northeast seeks relief from the judgment, not on the basis of a non-amendable defect on the record or pleadings, but rather on what amounts to a claim under OCGA § 9-11-60 (d) (2) based on “Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; . . .” Effective July 1, 1986, the legislature added these as additional grounds for the motion. Ga. L. 1986, p. 294, § 1.

None of these grounds provides Northeast with a basis for relief from the judgment. An accident is an event, not proximately caused by negligence, arising from an unforeseen or unexplained cause. Moore v. Barfield, 189 Ga. App. 348, 349 (375 SE2d 623) (1988). A claim of mistake, which is more closely aligned with the present facts, refers to the misapprehension of a past or present fact. Whipple v. County of Houston, 214 Ga. 532, 535-36 (105 SE2d 898) (1958). Regardless of whether the basis for relief from the judgment is characterized as mistake, accident, or because the State’s actions prevented Northeast from producing the defendant, these grounds are mixed with the negligence of Northeast. Relief under OCGA § 9-11-60 (d) (2) may only be granted where the grounds are “ ‘unmixed with the negligence or fault of the movant.’ ” Aycock v. Hughes, 189 Ga. App. 838 (377 SE2d 689) (1989).

The motion to vacate, which was verified by the affidavit of an agent of Northeast having personal knowledge of the facts, shows that Northeast located the defendant in the DeKalb County Jail on or about December 12, 1988, well in advance of the execution hearing. Although the trial court’s order denying the motion at issue recites that at the time of the February 16, 1989, hearing the surety had no knowledge of the whereabouts of the defendant, the only competent evidence in the record on this point is the sworn statement of the Northeast agent that the surety did have such knowledge. Northeast apparently failed to communicate this information to the court or the prosecutor prior to entry of final judgment on February 16, 1989. Although Northeast claims that the Fulton County Sheriff was aware that Northeast put a hold on the defendant at the DeKalb County Jail, even if true, there is no evidence that this information was communicated to the court or the prosecutor prior to the entry of judgment. Had Northeast communicated its knowledge to the court prior to the entry of final judgment, it could have availed itself of a statutory remedy to avoid the forfeiture. During the period at issue, Ga. L. 1987, p. 1342, § 4 (current version at OCGA § 17-6-72 (d)) provided that no judgment shall be rendered on a bond if prior to entry of judgment the court is shown that the defendant is in the custody of the sheriff or another law enforcement agency. Even after entry of final judgment, timely use of the remission statute in effect at the time could have provided Northeast with substantial relief from the bond forfeiture. Ga. L. 1987, p. 1342, § 4 (current version at OCGA § 17-6-72 (f)); AAA Bail Bonding Co. v. State of Ga., 259 Ga. 411 (383 SE2d 125) (1989).

The rationale of the rule set out in Buffington and its progeny is to grant sureties relief from forfeiture where the State has prevented the surety from producing the defendant because it holds the defendant elsewhere with the state on an unrelated charge. The rule recognizes that the State, as obligee on the bond, has an implied obligation not to hinder the surety in the performance of its bond obligations. However, Buffington does not require an omniscient state. It would be unrealistic, considering the sheer number of defendants and various courts within the state, to require that the State be aware in every instance that a defendant it holds in one place is wanted on an unrelated charge elsewhere in the State. Therefore, we do not read Buffington to require that the surety be released in every instance where the State holds a defendant in one place without knowledge of the other unrelated charge. The Buffington rule protects the surety where the State acts or fails to act in a manner that knowingly prevents the surety from producing the defendant. Based on the present record, we find that the negligence of Northeast in failing to communicate its knowledge of the defendant’s whereabouts, and not any act or omission of the State which knowingly hindered the surety, was the primary factor contributing to entry of judgment against Northeast on the bond forfeiture. Accordingly, the trial court did not err when it entered final judgment and denied the motion seeking to vacate the judgment.

Decided October 26, 1990.

Alan Z. Eisenstein, for appellants.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A89A2228.
    SOUTHERN ENGINEERING COMPANY v. CENTRAL GEORGIA ELECTRIC MEMBERSHIP CORPORATION.
    (398 SE2d 866)
    Decided October 29, 1990.

      Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, R. Michael Ethridge, for appellant.

      Jesse Copelan, Jr., C. Robert Melton, David G. Kopp, Nall,

      Miller, Owens, Hocutt & Howard, Robert B. Hocutt, for appellee.
   Deen, Presiding Judge.

The judgment in the captioned case at 193 Ga. App. 878 (389 SE2d 380) (1989) having been reversed by the Supreme Court of Georgia, 260 Ga. 409 (395 SE2d 809) (1990), this case is remanded to the Putnam County Superior Court so that, pursuant to the Supreme Court’s judgment, Central Georgia Electric Membership Corporation may be granted time in which to file the affidavit prescribed in OCGA § 9-11-9.1.

Judgment affirmed with direction.

Birdsong and Cooper, JJ., concur.


text:
    A90A0947.
    COMMONWEALTH FINANCIAL CORPORATION v. SHERRILL.
    (398 SE2d 438)
   Birdsong, Judge.

Commonwealth Financial Corporation (“Commonwealth”) appeals from the judgment of the trial court, after a bench trial, in favor of Mike Sherrill d/b/a Bedtime Waterbed Sleep Shoppe. Commonwealth alleges that the trial court erred by entering verdict and judgment for Sherrill and by denying its motion for award of attorney fees and litigation expenses. Held:

1. The record shows that Commonwealth received an assignment of Wright’s Furniture Mills’ (“Wright’s”) accounts receivable under a security agreement after Wright’s defaulted on a debt. After unsuccessful efforts to obtain payment, Commonwealth sued Mike Sherrill d/b/a Savannah Bedtime Sleep Shoppe and later amended the complaint to name the defendant as “Mike Sherrill d/b/a Bedtime Waterbed Sleep Shoppe.” Although Sherrill’s answer asserted that the debt was not his but was a debt of a corporation, the Bedtime Sleep Shop, Inc. (“Bedtime Sleep Shop”), Commonwealth never amended its complaint to add Bedtime Sleep Shop as a defendant.

Sherrill’s contention that Bedtime Sleep Shop owed the money is a defense to the action against him personally. “An inherent purpose of incorporation is insulation from liability. A corporation possesses a legal existence separate and apart from that of its officers and shareholders so that the operation of a corporate business does not render officers and shareholders personally liable for corporate acts. [Cit.]” Derbyshire v. United Bldrs. Supplies, 194 Ga. App. 840, 844 (392 SE2d 37).

The record reveals that articles of incorporation were issued to Bedtime Sleep Shop by the Georgia Secretary of State in 1983 and at that time Sherrill was not a stockholder of the corporation. Then in 1984 and 1985 Sherrill purchased all the corporation’s stock. The record further shows that Wright’s was doing business with Bedtime Sleep Shop before Sherrill purchased any of the stock and that Sherrill had nothing to do with establishing Bedtime Sleep Shop’s account with Wright’s. This is significant as the controlling period is the time when the credit was originally extended. See Jones v. Burlington Indus., 196 Ga. App. 834 (397 SE2d 174). Moreover, there is no evidence in the record that Sherrill changed any of the terms or conditions on which Bedtime Sleep Shop did business with Wright’s after he purchased the stock of the corporation. No documents were introduced nor any witnesses called from Wright’s showing that this was Sherrill’s debt rather than the Bedtime Sleep Shop’s, and moreover, no evidence was presented that Wright’s was unaware that it was doing business with a corporation, or that Wright’s believed it was doing business with Sherrill personally. Indeed, one of Commonwealth’s officers acknowledged that there was no evidence that Sherrill individually owed the money nor any evidence that Sherrill had guaranteed the debt, and this witness further testified that Commonwealth had access in Wright’s records to a copy of a credit report showing that Wright’s was doing business with the Bedtime Sleep Shop.

Although Commonwealth presented evidence showing that Sherrill’s operation of the corporation was far less than a model of proper corporate procedures and in many instances did not comply with legal requirements for operating in a corporate capacity, this is of no legal significance in this case since there was no evidence that Wright’s was misled by any of these actions or that they resulted in any detriment to Wright’s or anyone else, including Commonwealth. See Hyzer v. Hickman, 195 Ga. App. 213, 216 (393 SE2d 79). “The concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party has over extended his privilege in the use of a corporate entity in order to defeat justice, perpetrate fraud, or evade contractual or tort responsibility.” (Punctuation and citation omitted.) Cheney v. Moore, 193 Ga. App. 312-313 (387 SE2d 575). Despite the evidence showing Sherrill’s shortcomings in running a corporation, there was no evidence showing that Sherrill disregarded the separation of the corporate entity by commingling assets or abusing the corporate form. Derbyshire v. United Bldrs. Supplies, supra; compare Anderson v. Chatham, 190 Ga. App. 559, 562 (379 SE2d 793).

Therefore, as Commonwealth was proceeding on an assignment of Wright’s interest, the absence of evidence authorizing Wright’s to proceed against Sherrill individually is fatal to Commonwealth’s claim against him. Commonwealth had no greater claim against Sherrill or Bedtime Sleep Shop than Wright’s possessed. Hand v. Pelham Banking Co., 186 Ga. App. 520, 522 (368 SE2d 129). Accordingly, since Commonwealth introduced no evidence authorizing Wright’s to proceed directly against Sherrill, Commonwealth had no right to do so.

OCGA § 9-11-52 (a) provides that findings of trial courts in non-jury trials “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” “The clearly erroneous test is the same as the any evidence rule. Thus an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.” (Citations and punctuation omitted.) Kimbrell v. Effingham Bd. of Tax Assessors, 191 Ga. App. 544, 545-546 (382 SE2d 388). Since the transcript of evidence in this case supports the findings of fact of the trial court that Commonwealth simply failed to prove its case against Sherrill individually, there is no basis to disturb them. Accordingly, Commonwealth’s first enumeration of error is without merit.

Decided October 29, 1990.

Gregory N. Crawford, for appellant.

Oldfield & Wilson, James 0. Wilson, Jr., for appellee.

2. In view of the affirmance of the trial court in Division 1, Commonwealth’s enumeration concerning the denial of its motion for attorney fees and litigation expenses is plainly without merit.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1260.
    PARKS v. HOWARD et al.
    (398 SE2d 308)
   Birdsong, Judge.

This appeal arises from litigation over the discovery of termites and termite damage in a recently purchased home. Howard, the purchaser, and his wife, Virginia, sued Parks, the seller, and Danny L. Smith, individually and d/b/a White Oak Exterminating Company (collectively “White Oak”) for fraud seeking general and punitive damages and rescission. Parks appeals from the judgment of the trial court against both defendants awarding the Howards $20,000 in general damages and $5,000 in litigation expenses. White Oak is not a party to the appeal.

Pursuant to a real estate sales contract executed in January 1987, Parks agreed to sell the house in question to Howard. After execution of the contract and before the closing, Howard and others on his behalf looked at the house and apparently discovered no evidence of termite damage. The sales contract provided for, and at the closing in April 1987, Howard was presented, an Official Georgia Wood Infestation Inspection Report.

This report from White Oak showed that the house had no visible evidence of active infestations, that there was visible evidence that there had been earlier infestations by subterranean termites and powder post beetles, but there was no visible evidence of damage. At closing the parties discussed the report and whether the previous termite damage had been repaired. Howard concluded, based upon these discussions, that any damage had been repaired and proceeded to close the sale.

Shortly after the closing, Howard gave a deed to the house to “Virginia E. Howard, as joint tenant with rights of survivorship,” and then months later gave another deed to “Jesse Couch Howard, Jr., and Virginia E. Howard, as joint tenants with right of survivorship.” Although Virginia E. Howard is Jesse C. Howard’s wife, Parks denies that he knew that Virginia E. Howard would own any interest in the house since she did not attend the closing and was not listed on any of the closing documents.

Parks and White Oak filed two motions for summary judgment which were denied. The first motion contended that because of the first deed, Jesse Howard could not maintain the action because he had transferred his entire interest in the property to Virginia, and Virginia could not maintain the action because she was without privity to the contract. The second motion for summary judgment contended that Parks and Howard were entitled to judgment as a matter of law because the Howards could not establish the elements of fraud, particularly scienter and justifiable reliance.

Following a trial in which the jury was permitted to view the house, the verdict was returned upon which judgment was later granted. Parks appeals, contending that the trial court erred by denying both motions for summary judgment, by denying his motion for a directed verdict and his motion for judgment n.o.v. He also contends that the trial court erred by permitting the jury to view the house since it had changed substantially. Held:

1. Howard’s motion to dismiss this appeal because Parks’ brief and enumeration of error were filed one day late is denied. OCGA § 5-6-48 (b).

2. We cannot consider Parks’ contentions that the trial court erred in denying his motions for summary judgment “because after verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case.” (Punctuation and citation omitted.) Brown Realty Assoc. v. Thomas, 193 Ga. App. 847 (389 SE2d 505).

3. Parks also contends that the trial court erred by permitting the jury to view the house because there had been substantial changes in the condition of the house since the house was sold and since the termites and termite damage were discovered. We find no error. The view of the scene was not itself evidence, but was to assist the jury in understanding evidence previously introduced. Further, the trial court properly charged the jury on the purpose of the view and the fact that the scene had changed. Therefore, the fact that the view did not reveal the house as it was two years earlier was not significant. Moreover, the decision to allow a jury to view a scene is discretionary with the trial court (see Sutton v. State, 237 Ga. 418, 419 (228 SE2d 815); State Hwy. Dept. v. Andrus, 212 Ga. 737 (95 SE2d 781)), and under the facts of this case, the trial court did not abuse its discretion in permitting the view. Thus, this enumeration of error is without merit.

4. Parks also contends that the trial court erred by denying his motion for a directed verdict and motion for judgment n.o.v. because he contends that the Howards failed to prove the essential elements of actionable fraud, particularly that Parks knew the house was infested with termites and that Howard justifiably relied upon Parks’ representation. See Hester v. Wilson, 117 Ga. App. 435, 438 (160 SE2d 859).

“In determining whether the trial court erred by denying [appellant’s] motions for a directed verdict and motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. Union Camp Corp. v. Daley, 188 Ga. App. 756 (1) (374 SE2d 329). ‘A directed verdict (and judgment n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict. OCGA § 9-11-50 (a) (b).’ Id.” (Indention omitted.) Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268). Viewed in that manner, we cannot agree with Parks’ allegations that his motions were erroneously denied.

Although Parks lived in the house for several years and acted as his own general contractor in remodeling the house, he contends that there was no evidence he had actual knowledge that the house was infested with termites and he contends that Howard could have discovered the termites between the signing of the contract to sell the house and the closing if he had exercised reasonable diligence. See Webb v. Rushing, 194 Ga. App. 732, 733 (391 SE2d 709). These arguments, however, are misplaced in this appeal. The record shows that the sales contract called for an inspection of the property for termites and receipt of the usual official infestation inspection report. Under these circumstances and in the absence of some other evidence indicating the need for an inspection, we hesitate to impose a duty upon purchasers to conduct independent termite inspections prior to closing.

Further, while we agree that the evidence that Parks had actual knowledge the house was infested with termites is far from overwhelming, under the other evidence in this case, such evidence is not required. Howard’s testimony that, at the closing after seeing the White Oak inspection report showing that there had been prior infestations of termites and powder post beetles, he asked whether there was any damage and whether it had been repaired and Parks replied that it had been, obviates the need for evidence that Parks knew of and concealed the termite infestation. Whether Parks knew of the actual existence of termites, it is beyond dispute that he knew the prior termite damage had not been repaired, and he was not authorized to conceal the fact that the damage had not been repaired. See Wilhite v. Mays, 140 Ga. App. 816, 817 (232 SE2d 141), aff'd. 239 Ga. 31 (235 SE2d 532). Indeed, “concealment of material facts may amount to fraud when direct inquiry is made and the truth evaded.” (Citation and punctuation omitted.) Southern Store &c. Co. v. Maddox, supra; see also OCGA § 51-6-2 (a) and (b). Further, while Parks denies that he said that the damages had been repaired, this merely presents a jury issue and the jury was not bound to accept his testimony over Howard’s.

Decided October 29, 1990.

Sanders, Mottola, Haugen & Mann, A. Mitchell Powell, Jr., for appellant.

Wood, Odom & Edge, Gina Thomas, Gary W. Brown, for appellees.

Although Parks also contends that even if he said the damage had been repaired, Howard was unjustified in relying on his statement. “Questions of fraud, the truth and materiality of representations made by a seller, and whether the buyer could have protected himself by the exercise of proper diligence are, except in plain and indisputable cases, questions for the jury.” (Citations and punctuation omitted.) del Mazo v. Sanchez, 186 Ga. App. 120, 127-128 (366 SE2d 333). With evidence that the inspection report showed no visual damage and Parks represented the damage had been repaired, we cannot say that the evidence was plain and indisputable that Howard failed to exercise diligence by not stopping the closing and securing another inspection report. See Fincher v. Bergeron, 193 Ga. App. 256, 259 (387 SE2d 371).

Since there is evidence supporting the verdict, the trial court did not err by denying Parks’ motions. See Miller v. Economy Trading &c., 193 Ga. app. 344, 345-346 (387 SE2d 620). Accordingly, this enumeration of error is also without merit.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Sognier, Judge.

text:
    A90A1265.
    BULLMAN v. TENNECO OIL COMPANY et al.
    (398 SE2d 311)
   Sognier, Judge.

Patricia Brady Bullman and her husband, Douglas Lynn Bull-man, brought suit against Tenneco Oil Company and its employee Joel Edward Smith (collectively “Tenneco”), Barbara Templin, Rebecca Stewart, and Southern College and its employee Laura Sommer (collectively “Sommer”) seeking damages incurred as the result of an automobile accident on Interstate 285. The defendants answered, and Templin filed a counterclaim against Douglas Bullman for contribution. The case was tried before a jury, which awarded Patricia Bull-man $400,000 and Douglas Bullman $0. The jury found in favor of Stewart against the Bullmans, and in favor of Templin on her counterclaim against Douglas Bullman. Because the Bullmans had previously settled their claims against Sommer for $7,000, the trial court wrote off that amount from the jury’s verdict, entering judgment in favor of Patricia Bullman for $393,000 against Tenneco and Templin jointly and severally. The trial court denied Patricia Bullman’s motion for prejudgment interest on the judgment against Tenneco and Templin pursuant to OCGA § 51-12-14, and she appeals.

OCGA § 51-12-14 (a) provides that “[wjhere a claimant has given written notice by registered or certified mail to a person against whom claim is made for unliquidated damages in a tort action and the person against whom such claim is made fails to pay such amount within 30 days from the mailing of the notice, the claimant shall be entitled to receive interest on the claimed sum if, upon trial of the case in which the claim is made, the judgment is for an amount not less than the sum claimed.” The record reveals that in September 1986, approximately one year after the complaint was filed, appellant and her husband jointly sent separate letters by certified mail to each party sued with an offer to settle their claims against that party. The letters to Tenneco, Templin, and Sommer demanded $300,000 from each; the amount demanded to settle with Stewart was $100,000.

Appellant contends the trial court erred by denying her motion for prejudgment interest on the award against appellees because she has complied with the requirements of OCGA § 51-12-14 (a), and the verdict returned against appellees was for an amount “not less than the sum claimed” in her demand letters. Appellant argues that because the total judgment she was awarded exceeded the sum claimed in her separate demand upon each defendant, she is entitled to prejudgment interest. We do not agree.

Although “the law in this state encourages the resolution in one action of all claims arising from a single occurrence or transaction, [cits.],” Grissett v. Wilson, 181 Ga. App. 727, 729 (1) (353 SE2d 621) (1987), each letter sent by appellant offered to “settle [her] claims by covenant not to sue in favor pi [the letter’s recipient], thus terminating the action as to [that particular party].” It is apparent from the demand letters that if any recipient had paid the sum demanded in the letter it received, that payment would not have ended the entire litigation, which would have continued against the other defendants until the total of the sums demanded from all was paid. Thus, the aggregate sum claimed by appellant from all the defendants — the “sum claimed” — in this case was $1,000,000 rather than $300,000 as urged by appellant.

Decided October 29, 1990.

Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., C. Frederick Overby, Peter J. Daugherty, Tucker & Hollberg, John P. Tucker, Jr., for appellant.

Further, although appellant correctly notes that the judgment against appellees was joint and several, thus entitling her to collect the entire amount from either party, should appellant in fact satisfy her judgment completely by collecting it from one appellee, she would then be entitled to collect nothing from the other. Since the party paying the full judgment under those circumstances would then be entitled to pro rata contribution from the other judgment debtors, Waddey v. Davis, 149 Ga. App. 308, 312 (254 SE2d 465) (1979), in the instant case each appellee ultimately is liable only for a pro rata share of the $393,000, or $196,500.

Appellant’s contention depends upon her incongruent treatment of the terms “judgment” and “sum claimed” in the applicable statute. While arguing that the “sum claimed” in her case is that amount demanded from each party rather than the aggregate amount sought from all the defendants, appellant defines the judgment as the total amount awarded her. “Statutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation. [Cit.]” Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186) (1987). If OCGA § 51-12-14 (a) is to be read fairly and according to its most natural and obvious import, the terms “judgment” and “sum claimed” must be treated congruently. If the terms are treated in like fashion, it becomes apparent that the circumstances present here do not satisfy the requirements of OCGA § 51-12-14 (a). Construing both terms as referring to an aggregate amount, the judgment appellant received for $393,000 was less than either the aggregate sum claimed from all parties sued ($1,000,000) or the aggregate sum claimed from appellees only ($600,000). Similarly, if both terms are construed as referring to amounts from the individual defendants, each appellee’s pro rata share of the judgment is $196,500, which is less than $300,000, the sum claimed from either appellee.

Construing the statute’s terms in either fashion, we must conclude that appellant was not entitled to prejudgment interest under the statute, and the trial court did not err by denying appellant’s motion.

Judgment affirmed.

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

Haas, Bridges & Kane, Alvin L. Bridges, Freeman & Hawkins, Howell Hollis III, Michael E. Hutchins, for appellees.


text:
    A90A1333.
    EMPIRE SHOE COMPANY v. NICO INDUSTRIES, INC.
    (398 SE2d 440)
   Sognier, Judge.

Empire Shoe Company, a tenant in the Healey Building in downtown Atlanta, brought suit against the building owner, Healey Building Associates, Ltd. (HBA), to recover damages allegedly resulting from delays in renovation of the building. HBA then filed a third-party complaint for indemnification and contribution against NICO Industries, Inc., HBA’s renovation contractor. The trial court granted partial summary judgment to third-party defendant NICO on Empire Shoe’s claims against defendant HBA for lost profits and damaged inventory and denied Empire Shoe’s motion for reconsideration. Empire Shoe appeals.

The record reveals that in March 1985, appellant and HBA’s predecessor executed a five-year lease with two five-year renewal options for retail space in the Healey Building to be used by appellant for a retail shoe store. HBA subsequently purchased the building and assumed the landlord’s interest under the lease. As part of its plan for renovating the building, HBA negotiated an amendment to the lease whereby the parties agreed that HBA would endeavor to begin work by June 1, 1986, to substantially complete the interior work by August 1, and to achieve substantial completion of all areas affecting appellant by October 1, 1986, so that appellant could complete its tenant finish work in time for the Christmas buying season. The amendment also provided for rent abatement during the construction period and required HBA to provide safe, dry storage for appellant’s inventory during the work.

Pursuant to this amendment, appellant vacated the leased premises in the summer of 1986 and appellee began work. It is undisputed that the work was not substantially complete until at least late March 1987 and that appellant did not resume retail operations until October 1, 1987. Sometime during early 1987, appellant’s inventory and fixtures stored in the sub-basement sustained severe water damage. Appellant filed this action in October 1987, seeking compensatory and punitive damages for the construction delay and the damage to its goods and fixtures.

1. Although this matter is not raised by either party, we must address the threshold question of NICO’s right as a third-party defendant to assert a motion for summary judgment against appellant, the original plaintiff. A proper third-party complaint must be predicated on secondary liability to the original defendant for its liability on the main claim, not on direct liability from the third-party defendant to the original plaintiff. Southern R. Co. v. Union Camp Corp., 181 Ga. App. 691, 693 (2) (353 SE2d 519) (1987). Nonetheless, “[t]he third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff’s claim.” OCGA § 9-11-14 (a). Accord Opatut v. Guest Pond Club, 188 Ga. App. 478, 482 (10) (373 SE2d 372) (1988). “For the purpose of defense against plaintiff’s complaint, a third party defendant is in the law suit as an adverse party to the same extent as the defendant and must act accordingly. This assures a third party defendant complete defense protection in an action where he may be liable for the judgment in favor of the plaintiff. [Cits.]” F & D Property Co. v. Alkire, 385 F2d 97, 100 (10th Cir. 1967). A third-party defendant is “entitled to participate to the fullest extent as though he had been originally a defendant. To the extent that he fail[s] to exercise that privilege of participation, he [does] so at his peril, for a third-party defendant is bound by the adjudication of the third-party plaintiff’s liability to the plaintiff.” (Footnote omitted.) Knell v. Feltman, 174 F2d 662, 665 (I) (DC Cir. 1949). Thus, the third-party defendant, by participating fully in the defense of the case, is entitled to a complete defense of the action and will not be prejudiced by any lack of diligence on the part of the original defendant.

Other courts have recognized that this right to assert defenses authorizes a third-party defendant to resist the plaintiff’s motion for summary judgment on the same grounds as the defendant could use (F & D Property, supra); to move to disqualify plaintiff’s counsel (Oyster v. Bell Asbestos Mines, 568 FSupp. 80 (ED Pa. 1983)); to move to transfer the action for lack of jurisdiction over the defendant (Ferrigno v. Ocean Transport, Ltd., 188 FSupp. 179 (SDNY 1960)); and to use a defense available to the defendant to obtain dismissal of the plaintiff’s complaint as to the third-party defendant even though the defendant does not raise the issue (Lewis v. Borg-Warner Corp., 315 NYS2d 56 (1968)). We must consider, however, whether this right to assert defenses of the third-party plaintiff authorizes a third-party defendant to move for summary judgment against the original plaintiff on the basis that the plaintiff is not entitled to judgment against the defendant. Our research has yielded no Georgia case on point. Section 56 of the Civil Practice Act, OCGA § 9-11-56 (b), permits “[a] party against whom a claim ... is asserted” to move “for a summary judgment in his favor as to all or any part thereof.” The Georgia Supreme Court held in Taylor v. Donaldson, 227 Ga. 496, 498-499 (181 SE2d 340) (1971) that section 56 must be construed with section 1 of the Act (OCGA § 9-11-1), which provides that “[t]his chapter shall be construed to secure the just, speedy, and inexpensive determination of every action,” and accordingly the term “claim” in section 56 should be “broadly interpreted.” While our courts have evolved a rule of strict construction in favor of the party opposing summary judgment, that rule applies to our construction of the evidence, not to the scope of the statute’s applicability to claims and parties. See, e.g., Georgia Farm Bureau Mut. Ins. Co. v. Allstate Ins. Co., 190 Ga. App. 593, 594 (379 SE2d 619) (1989); Watkins v. Nationwide &c. Ins. Co., 113 Ga. App. 801, 802 (149 SE2d 749) (1966). Accordingly, given the mandate of OCGA § 9-11-1, the broad interpretation to be given to the type of “claim” against which summary judgment may be sought, and the right of a third-party defendant to participate fully in the defense of the primary action to protect its own interests, we hold that a third-party defendant is entitled to move for summary judgment against the original plaintiff on any ground for which the original defendant would be entitled to summary judgment against the plaintiff.

2. We now address the merits of appellant’s challenge to the trial court’s ruling. Appellant first enumerates as error the grant of summary judgment to NICO on the claim for lost profits for the period attributable to the construction delay. In support of its summary judgment motion, NICO submitted the deposition testimony of appellant’s president, Marshall Nerenbaum, who acknowledged that appellant, which was qualified as a subchapter S corporation under 26 USC § 1361 et seq., had reported losses on its income tax returns for several years prior to the period at issue, and that, like many closely held family businesses, appellant distributed its profits in the form of salaries to the employees, most of whom were family members. Nerenbaum acknowledged that the business loss claim related primarily to the salaries paid while the business was not in operation. (We note that appellant has presented a separate claim for the salary expenses, and the trial court denied summary judgment to NICO on that issue.) Appellant submitted no affidavits or other testimony in response to the motion, taking the position that NICO had not set forth a prima facie case so as to shift the burden of proof to appellant. The trial court disagreed, and awarded summary judgment to NICO because it had established that appellant had no profits in prior years and thus was not entitled to recover lost profits as a matter of law.

Ordinarily, anticipated profits are too speculative to be recovered, “but where the business has been established, has made profits and there are definite, certain and reasonable data for their ascertainment, and such profits [were] in the contemplation of the parties at the time of the contract, they may be recovered . . . even though they can not be computed with exact mathematical certainty.” Mizell v. Spires, 146 Ga. App. 330, 332 (2) (246 SE2d 385) (1978). However, a claimant may recover lost profits “only if the business has a proven ‘track record’ of profitability. The jury is not permitted to speculate as to what the allegedly lost profits might have [been]. [Cit.]” Stern’s Gallery &c. v. Corporate Property &c., 176 Ga. App. 586, 592 (3) (337 SE2d 29) (1985). Accord Molly Pitcher &c. v. Central &c. R. Co., 149 Ga. App. 5, 12 (253 SE2d 392) (1979).

In the case at bar, we agree with the trial court’s conclusion that appellant was not entitled to recover lost profits because it had no track record of profitability. Nerenbaum’s testimony clearly established that appellant had no corporate profits in prior years, and appellant presented no rebuttal evidence indicating that a material question of fact remained. Contrary to appellant’s contention, NICO did not have to present independent testimony but was entitled to summary judgment when the testimony of appellant’s own principal revealed an absence of evidence on an essential element of the claim. Grossberg v. Judson Gilmore Assoc., 196 Ga. App. 107, 109 (395 SE2d 592) (1990). Appellant’s assertions in its verified complaint and interrogatory answers that it had incurred lost profits of approximately $96,000 did not suffice to rebut NICO’s prima facie case because “[a]llegations, conclusory facts, and conclusions of law cannot be utilized to support or defeat motions for summary judgment. [Cits.]” Peterson v. Midas Realty Corp., 160 Ga. App. 333, 335 (287 SE2d 61) (1981). See Tri-State Systems v. Village Outlet, 135 Ga. App. 81, 84-85 (217 SE2d 399) (1975) (claim for lost profits must be supported by specific facts and supporting data). Nor can the letter from appellant’s accountant be used to create a material fact question, for, pretermitting the issue of the letter’s admissibility, the accountant stated only conclusory facts with no supporting data, and also referred only to gross profit, which cannot be used as a basis for recovery of damages for lost profits. Grossberg, supra at 108-109 (2). Similarly, appellant’s contention that because of the differences in methodology between tax and financial accounting, its income tax records should not be used as evidence of its lack of profitability raises no fact issue because appellant presented no financial accounting data in rebuttal.

Accordingly, once NICO presented the testimony of appellant’s own principal in support of its contention that appellant had no lost profits to be recovered, the burden shifted to appellant to produce some evidence creating a genuine dispute on that issue. Since appellant failed to produce any evidence regarding past net profits, and this issue was one that could have been raised by HBA, the original defendant, the trial court properly granted summary judgment to NICO on the issue of lost profits. See Grossberg, supra at 109-110 (2).

3. The trial court also granted summary judgment to NICO on appellant’s claim for compensation for the inventory damaged while in storage. Again, the evidence presented by NICO in support of its motion for summary judgment on this issue consisted of Nerenbaum’s deposition testimony. Nerenbaum, who testified to extensive experience in the shoe retailing business, stated that the stored inventory consisted of pairs of shoes purchased , between 1982 and 1986. He valued the goods purchased during 1985 and 1986 at the full wholesale purchase price because of the decline in the value of the dollar since the purchases were made, but applied a depreciation factor of $10 per pair for the older inventory. Receiving no further evidence from appellant in rebuttal, the trial court ruled in favor of NICO on the ground that the only evidence as to the value of the inventory was a record of the purchase price paid for the goods, which is insufficient to establish a claim for recovery of damages.

We disagree. Except in certain limited circumstances not present here (see Braner v. Southern Trust Ins. Co., 255 Ga. 117, 120-121 (3) (335 SE2d 547) (1985)), the general rule is that an opinion as to value based solely on the cost price is inadmissible because it has no probative value. E.g., Hoard v. Wiley, 113 Ga. App. 328, 334 (2) (147 SE2d 782) (1966). Nonetheless, the “cost price óf an item, if coupled properly with other evidence such as a showing of the condition of the item both at the time of purchase and at the time its value is in issue, may be admitted as a element upon which an opinion may be formed as to the item’s value.” Id. This court has recognized that the opinion testimony of an experienced retail proprietor regarding the value of his inventory, which he derived from the wholesale price of the goods, is admissible. First of Ga. Ins. Co. v. Worthington, 165 Ga. App. 303, 307-308 (5) (299 SE2d 567) (1983). Here, Nerenbaum explained the basis for his valuation of different types of inventory, which consisted of shoes that were new when he purchased them and were still in their original boxes and cases when the water damage occurred. Given that opinion evidence, although not sufficient to authorize the grant of summary judgment, can be sufficient to preclude the grant of summary judgment, Dickson v. Dickson, 238 Ga. 672, 674-675 (235 SE2d 479) (1977), we find that Nerenbaum’s testimony had probative value and thus reverse the lower court’s holding on this issue.

4. Appellant finally contends the trial court erred by denying its motion for reconsideration based on the court’s failure to consider affidavits it filed two weeks after the summary judgment hearing. Appellant maintains the court abused its discretion by agreeing to allow the parties fifteen days after the hearing to file additional pleadings but then declining to consider appellant’s affidavits filed within the designated time period. The hearing transcript reveals that the court allowed the parties additional time to file supplemental briefs or affidavits clarifying previously submitted evidence, and specifically admonished the parties not to raise new evidentiary issues. After appellant filed supplemental affidavits addressing various issues raised by the summary judgment motions, HBA moved to strike the affidavits on the ground that they presented new evidence, not clarification of previous evidence, and the court granted the motion. OCGA § 9-11-6 (d) provides that, absent an extension of time authorized by the court, opposing affidavits must be served no later than one day before the hearing on the motion. While the trial court is vested with discretion to consider affidavits not timely filed, the refusal to exercise that discretion is not error, Williamson v. Sunshine Oil Co., 176 Ga. App. 661, 662 (1) (337 SE2d 441) (1985), and we find no error here, especially given that the supplemental affidavits did present new evidence in violation of the court’s admonition, and again presented only conclusory statements.

Decided October 29, 1990.

Lamberth, Bonapfel, Cifelli & Wilson, Jerrell P. Rosenbluth, Carter L. Stout, for appellant.

Drew, Eckl & Farnham, Stevan A. Miller, Haas, Bridges & Kane, Stephen R. Kane, Branch, Pike & Ganz, Caroline C. Kreshy, Hurt, Richardson, Garner, Todd & Cadenhead, C. Michael Johnson, for appellee.

Judgment affirmed in part and reversed in part.

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


text:
    A90A1390.
    In the Interest of T. M. H. et al., children.
    (398 SE2d 766)
   Sognier, Judge.

The father of T. M. H., D. A. H., and L. C. H., Jr., appeals from the order of the Juvenile Court of Butts County terminating his parental rights in the three children.

1. Appellant contends the evidence was insufficient to support the juvenile court’s termination of his parental rights. The evidence adduced at trial established that appellant was convicted in March 1986 of statutory rape, aggravated sodomy, aggravated child molestation, child molestation, and two counts of cruelty to children as to his oldest child, T. M. H., and was sentenced to a total of 50 years in prison. The children’s mother surrendered her parental rights in the children in September 1986. The children have been in foster care with the Butts County Department of Family & Children Services (DFCS), and the petition for the termination of appellant’s parental rights was brought in May 1987.

The foster mother of D. A. H. and L. C. H., Jr., testified to the contents of discussions she had had with the children in which they had detailed the types of sexual abuse inflicted upon them and their siblings by appellant and various paternal relatives. Dr. James E. Stark, an expert in child psychology who had treated all three children, testified that in January 1986 the children were “among the most traumatized children [he] had ever seen” in his extensive career. Dr. Stark testified that based on his testing, interviews, and observations of the three children, “my professional opinion is that most probably they have been severely abused by their father” both psychologically and sexually. As appellant correctly notes, Dr. Stark testified he had never evaluated or tested appellant. However, in response to a hypothetical question posed by the assistant attorney general based on Dr. Stark’s knowledge of the condition of the children and the fact that appellant, named by the children as one of their primary abusers, had denied and continues to deny that he had ever harmed any of the children in any manner, Dr. Stark testified that unless appellant is willing to acknowledge his past behavior, “then there is not hope, I think in my professional opinion, of his changing what appears to be very, very strong abusive behaviors. I think the likelihood of those abusive behaviors continuing would be very, very high. And, it would appear until he is willing to admit some abusive problems, then he’s probably not going to change and I do not think a person like that would be a fit parent of children.” Dr. Stark stated that in his professional opinion, the children would never really recover from the trauma surrounding appellant and their fear of him; that the likelihood of appellant ever being able to provide for the needs of the children was “very, very low”; and that it was in the best interest of the children to have no physical contact with appellant and that the children “need separation in every way possible [from appellant] so they can move on with their lives.”

Nancy Copeland Aldridge, a psychotherapist and licensed clinical social worker treating D. A. H. and L. C. H., Jr. on a bi-weekly basis, testified that both children scored high on tests for the behavioral indicators of sexual abuse and detailed a long list of abusive incidents related to her by these children that the children had either observed or personally endured. Based on her sessions with the children, she stated it was her opinion that appellant “absolutely cannot” provide proper parental care and control for the children and that appellant’s inability to be a proper parent to children “is ever present and he will never be able to function as a parent for them.”

(a) We find no merit in appellant’s contention that the juvenile court based its findings on matters not in evidence.

(b) We find no merit in appellant’s contention, raised in two enumerations, that the juvenile court erred by considering the testimony of witnesses as to the content of conversations they had with D. A. H. and L. C. H., Jr., both under 14 years. Both children were available at trial to testify, and both were qualified by the juvenile court as competent to testify but were never called.

OCGA § 24-3-16 provides that “[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” “As regards the hearsay objection, we find [these witnesses’] testimony falls squarely within OCGA § 24-3-16. [Cit.]” Reynolds v. State, 257 Ga. 725 (1) (363 SE2d 249) (1988). Appellant’s argument that the juvenile court erred by not first determining the children’s statements possessed “sufficient indicia of reliability” is controlled adversely to him by Reynolds, supra at 725-726 (2).

(c) Appellant’s argument that, there was no clear and convincing evidence the children were deprived because none of the State’s witnesses had personally observed appellant together with the children (it appearing that the witnesses’ contact with the children arose after appellant was incarcerated) is based on the position, rejected in Division 1 (b), that the statements made by the children to the witnesses at trial were inadmissible. Thus, there is no merit in this enumeration.

(d) We find the extensive expert testimony regarding the fear and trauma the three children currently experience and probably will always experience as a result of the abuse inflicted on them by appellant amply supports the juvenile court’s finding that the children are deprived under OCGA § 15-11-81 (b) (4) (A) (i). The juvenile court’s finding pursuant to OCGA § 15-11-81 (b) (4) (A) (iii) that the deprivation is likely to continue into the future was supported by the expert testimony that appellant’s failure to admit his abuse of his children renders it most likely that the abusive behavior would continue should appellant ever be allowed contact with his children again. Accordingly, appellant’s final argument under this enumeration is without merit.

2. The juvenile court’s order contains explicit findings as to the existence of parental misconduct and inability as defined in OCGA § 15-11-81 (b) and the deleterious effect appellant has and would continue to have on the children’s physical, mental, emotional, and moral condition. The juvenile court also found that the children “have a strong need for a stable and suitable home in which they can be protected from any further acts of abuse, aggression or molestation by their father.” The juvenile court detailed the State’s investigation of paternal relatives who had offered to take the children and why those offers had been rejected. The juvenile court also found that the prospects for locating a permanent adoptive home for the two younger children were extremely good, and noted the evidence regarding permanent placement for the oldest daughter where she could be protected from her father.

Appellant contends reversible error was committed by the juvenile court by its failure to track the language in OCGA § 15-11-81 (a) by expressly finding that termination of his parental rights was “in the best interest of” the children, citing In the Interest of G. K. J., 187 Ga. App. 443, 444 (3) (370 SE2d 490) (1988). In that case, the juvenile court’s order included the ultimate determination that the best interest of the children would be served by terminating the father’s rights, but failed to set forth the facts supporting that finding. We held that “there is no explicit statutory requirement for entering the specific findings of fact which support the juvenile court’s ultimate finding that, based upon its further consideration of the best interest of the child, the rights of [the father] should be terminated.” Id. at 445.

OCGA § 15-11-81 (a) provides that “[i]n considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability. ... If there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” While the statute mandates the juvenile court consider “the best interest of the child” before ruling on a petition to terminate a parent’s rights in the child, OCGA § 15-11-81 (a) contains no explicit statutory requirement that an order recite the words “in the best interest of the child” before it is correct under the law. Thus, we reject appellant’s argument that the order here in which, by the matters recited therein, the court’s consideration of the children’s best interests is patent, was deficient.

3. In view of the juvenile court’s finding, supported by Dr. Stark’s testimony, that none of appellant’s relatives is suitable for the placement of the children because of the probable history of incestuous behavior in that family, we find no merit in appellant’s argument that the juvenile court improperly failed to make an “exhaustive and thorough search” for a suitable family member to accept the children under OCGA § 15-11-90 (a) (1).

4. Appellant contends the juvenile court erred by admitting into evidence numerous letters sent by appellant to various caseworkers to forward to his children. We find no merit in this enumeration because the transcript reveals that the authenticity of the letters was testified to by appellant at trial, at which point the letters were retendered by the State, and other evidence regarding the subject matter of the letters (appellant’s protestations of affection for his children and his denial of ever abusing the children) was admitted at trial without objection. See Tucker v. Mappin, 149 Ga. App. 847, 848 (B) (256 SE2d 135) (1979).

Decided October 29, 1990.

Lindsey & Jacobs, Tamara Jacobs, for appellant.

Richard W. Watkins, Jr., Michael J. Bowers, Attorney General, Carol A. Cosgrove, William C. Joy, Senior Assistant Attorneys General, for appellee.

Judgment affirmed.

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