author: Banke, Presiding Judge.

text:
    77497.
    McQUEEN v. THE STATE.
    (377 SE2d 682)
   Banke, Presiding Judge.

The appellant was convicted of having possessed more than an ounce of marijuana in violation of the Georgia Controlled Substances Act. He contends on appeal that the trial court erred in denying his motion to suppress the contraband.

The marijuana was seized during a search of the appellant’s apartment conducted pursuant to a search warrant. The warrant was issued at 1:10 a.m. on September 30, 1986. The affidavit submitted to the magistrate in support of the warrant specified, in pertinent part, as follows: “On Monday, September 29, 1986, affiant did personally talk with a confidential and reliable informant, who personally stated to affiant that sometime within the past three (3) days [he] was personally at [the address specified in the warrant]. While there the confidential and reliable informant did personally see a quantity of green leafy material being stored at the location which was represented to the confidential and reliable informant as marijuana. The marijuana was represented for sale by a subject known to the confidential reliable informant as ‘Bill,’ who resides at [the address in question]. Confidential reliable informant has given affiant information within the past three (3) months which has led to the seizure of marijuana in violation of the Georgia Controlled Substances Act.”

At the hearing on the motion to suppress, the affiant revealed that he had in fact been totally unacquainted with the informant prior to the occasion in question. The appellant contends that the affiant’s averments to the effect that the informant was reliable and had furnished information in the past which had led to the seizure of marijuana consequently must be viewed as material misrepresentations. However, the affiant further testified at the hearing on the motion to suppress that before he applied for the warrant, he and the informant had gone to the appellant’s apartment, where the informant had “made a controlled buy.” The state asserts in its brief on appeal that this information was properly omitted from the affidavit because “[t]he inclusion of this very specific information . . . would have seriously compromised the confidentiality and possible safety of the informant.” The state further asserts that, in light of this additional information, the affiant’s averment that the informant had given him “information within the past three (3) months which has led to the seizure of marijuana” was truthful. Held:

Initially, we note that the state’s explanation for the affiant’s failure to include the information about the “controlled buy” in the affidavit does not account for the affiant’s failure to bring this information to the attention of the magistrate through oral testimony. See generally Simmons v. State, 233 Ga. 429, 431 (211 SE2d 725) (1975). However, we agree that an acquisition of contraband by a law enforcement officer under circumstances such as those shown in the present case may reasonably be equated with a “seizure” of such contraband. Consequently, we reject the appellant’s contention that the affiant obtained the warrant through misrepresentation. Further concluding that the information set forth in the affidavit provided a substantial basis for a belief that marijuana was currently being stored on the appellant’s premises, we accordingly hold that the trial court did not err in denying the appellant’s motion to suppress. See generally Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983); State v. Luck, 252 Ga. 347 (312 SE2d 791) (1984). Compare State v. Brown, 186 Ga. App. 155 (2) (366 SE2d 816) (1988) (where the affidavit contained no information whatever reflecting either the basis of the informant’s knowledge or the reasons why he should be believed).

Decided December 2, 1988 —

Rehearing dismissed January 3, 1989.

Albert B. Wallace, for appellant.

Robert E. Keller, District Attorney, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    77896.
    LEAH ENTERPRISES, INC. v. CHOUINARD.
    (377 SE2d 514)
   Deen, Presiding Judge.

Leah Enterprises, Inc., d/b/a Solutions, entered into a lease with Alfred R. Chouinard on September 7, 1982. The lease, which expired on October 31, 1987, contained a special stipulation granting the tenant an option to renew for two five-year periods at the then prevailing market rate. The right to exercise the option was conditioned upon the tenant’s being current on all rental payments.

When the lease term expired, the landlord demanded possession and the tenant refused to grant it, contending that on October 14, 1987, it notified the landlord that it was contemplating the exercise of its option to renew the lease and inquired as to the prevailing market rental that Chouinard planned to charge. On October 23, 1987, appellant gave Chouinard’s attorney a certified check for $710.82, which it claims represented the past-due rent that it owed, and stated that it was exercising its option to renew the lease. Appellee rejected the payment and the attempt to exercise the option to extend the lease. In November of 1987, appellee swore out a dispossessory warrant and both parties filed motions for summary judgment. The trial court granted the landlord’s motion, holding that he was entitled to possession of the premises as a matter of law. Held:

Appellant argues that appellee waived strict compliance with the terms of the option to renew the lease by unilaterally terminating its option to renew the lease by inaction and refusal to communicate with appellant.

An examination of the lease shows that the defendant had a right to renew the lease for five years provided the tenant was current in all rental payments. The tenant filed an affidavit stating that it was current in its rent and that the option was exercised properly. The landlord also filed an affidavit in support of his motion, with a copy of the lease and copies of the correspondence between the parties attached. The affidavit stated that the defendant sent an undated letter stating that it sought to renew the lease and that it was current in its rent payments. A second letter, dated October 23, 1987, was also attached, and that letter also stated that the defendant was seeking to renew the option. Chouinard claimed that these attempts were invalid because the tendered amount of arrearages was incorrect, the tenant was in arrears in its rent when it tried to exercise the option, and the rent was still in arrears because the tendered amount was incorrect when it submitted a payment on the arrearage with the second letter. Chouinard contends that the defendant did not take into account the lease provisions which required that a minimum of 4 percent increase in rent, which was to take effect at the time of the new lease; that the option to renew would have required a first and twenty-fifth month’s rent paid in advance (which appellant did not pay); and the $220 per month cleanup fee that was required under the lease was not paid for November or any succeeding month. Other alleged lease violations included installation of coin-operated machines on the premises in violation of the lease and installation of unapproved signs which the appellant refused to remove. Chouinard also claimed that the letter seeking to exercise the option and the check for the arrearages was given to his attorney, who was not authorized to accept rental payments or to negotiate a new lease.

We agree with the trial court that the landlord was entitled to possession of the premises. Appellee’s affidavit that appellant was in arrears in his rent is not rebutted. Chouinard, however, did rebut the statement contained in appellant’s affidavit that it was current in its rental payments. Chouinard’s affidavit set forth the entire basis for his cause of action and gave a detailed calculation as to the amounts of back rental payments which were owed under the lease and set forth the basis as to why appellee could not validly exercise the option to renew the lease. Appellee therefore made out a prima facie case as to why he was entitled to judgment as a matter of law on his motion for summary judgment. Appellant filed nothing further. Once a party moving for summary judgment has made out a prima facie case, the burden of proof shifts to the opposing party who must come forward with rebuttal evidence or suffer judgment against it. Bright v. Knecht, 182 Ga. App. 820, 821 (357 SE2d 159) (1987). As appellant presented no rebuttal to appellee’s affidavit and appellee successfully rebutted appellant’s contention that it was current in its rent, the trial court did not err in finding that Chouinard was entitled to a writ of possession as a matter of law.

Decided December 5, 1988 —

Rehearing denied January 3, 1989.

James W. Wilson, for appellant.

Glenville Haldi, for appellee.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    76155.
    HARVEY v. MOORE et al. MEMORIAL MEDICAL CENTER, INC. et al. v. MOORE et al.
    76156.
    (378 SE2d 531)
    Decided January 3, 1989.

      I. Gregory Hodges, Wendy W. Williamson, for appellant (case no. 76155).

      Lee C. Mundell, Anne V. Marscher, for appellants (case no. 76156).

      Benjamin S. Williams, Carlton R. Stewart, for appellees.
   Banke, Presiding Judge.

In accordance with the Supreme Court’s decision in Moore v. Memorial Med. Center, 258 Ga. 696 (373 SE2d 204) (1988), the decision of this court in Memorial Med. Center v. Moore, 186 Ga. App. 876 (368 SE2d 784) (1988), is vacated and the judgment of the trial court is affirmed.

Judgment affirmed.

Birdsong and Beasley, JJ., concur.


author: Benham, Judge.

text:
    77113.
    POWELL v. JAMES, HEREFORD & McCLELLAND, INC.
    (377 SE2d 683)
   Benham, Judge.

The issues to be decided on this appeal concern the correctness of jury instructions regarding the duty of a plaintiff in a fraud case to use ordinary care to discover the fraud, and the duty of one signing a document to read it first. Appellant brought this suit against appellee, an insurance agency, to recover damages allegedly arising from appellee’s failure to procure insurance for appellant. Basic to appellant’s case is his contention that appellee, by filling in wrong information on an application appellant swore he signed in blank, caused appellant’s application for insurance to be rejected by the insurer. At trial, appellant asserted that appellee was acting as his agent in the transaction rather than as the insurer’s agent. At the close of the evidence, the trial court directed a verdict for appellant on the agency issue, ruling that appellee acted as appellant’s agent. After the charge to the jury, appellant objected to the charges mentioned above on the ground that the principles stated did not apply where there was a fiduciary relationship. Following entry of judgment on a defendant’s verdict, appellant brought this appeal.

1. Where an insurance agent acts as agent for the insured, there is a fiduciary relationship between them. Stewart v. Boykin, 165 Ga. App. 868, 872 (303 SE2d 50) (1983). To counter appellant’s argument that the objected-to charges were improper because of the fiduciary relationship between the parties, appellee argues that the trial court was incorrect in granting appellant a directed verdict on the issue of agency. Since appellee did not directly raise the issue by means of a cross-appeal, we need consider it only if it is material to one of appellant’s enumerations of error. Georgia &c. Plastic Surgeons v. Anderson, 257 Ga. 710 (1) (363 SE2d 140) (1987). We find that it is not material: whether or not appellant was entitled to a directed verdict on the issue, there was evidence that appellee was acting as appellant’s agent. Whether that issue was decided by the court or the jury, if the existence of such a relationship created an exception to the principle of law involved in the charges under consideration, appellant would be entitled to have the jury apprised of the exceptions. The issue not being material to a decision on any of appellant’s enumerations of error, we leave intact the trial court’s ruling that appellee was appellant’s agent.

2. The first charge stated, in essence, that one alleging fraud must show that he exercised ordinary care to find out the facts and protect himself. There is an exception to that rule, however, where there is a fiduciary relationship between the parties. Johnson v. Bogdis, 205 Ga. 535, 541 (54 SE2d 620) (1949). Since that exception would be applicable if appellee were appellant’s agent, the omission of it from the charge was error.

Decided January 3, 1989.

Strickland & Garmon, Dennis J. Strickland Sr., for appellant.

Dickey, Whelchel, Brown & Readdick, J. Thomas Whelchel, for appellee.

3. The other two charges to which appellant objected below and on appeal were to the effect that one signing a paper has a duty to read it first; that one who. signs a paper without reading it is bound thereby; and that one who signs a paper which is to be filled in impliedly authorizes the one to whom it is delivered to do so. To those rules, too, there is an exception when there is a confidential or fiduciary relation. Youngblood v. Mock, 143 Ga. App. 320 (1) (238 SE2d 250) (1977). The failure to mention that exception made the charges incomplete and, therefore, erroneous.

4. Appellant’s other enumeration of error concerning denial of his motion for new trial is rendered moot by the preceding rulings.

Judgment reversed.

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


author: Beasley, Judge.

text:
    77132.
    HURSTON v. THE STATE.
    (377 SE2d 519)
   Beasley, Judge.

Following the denial of his motion for new trial, Hurston appeals his conviction and sentence for burglary, OCGA § 16-7-1.

1. Appellant contends that the evidence was insufficient to support his conviction because it was not proved that he entered the dwelling or had the intent to commit the crime.

The evidence viewed favorably to uphold the verdict, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985), showed: at approximately 12:20 a.m., a police officer observed an automobile parked behind a condominium complex where a number of burglaries had occurred. As the officer drove by, he saw a man running from the edge of the buildings to the parked car. Seconds later, as the car drove off, the officer pursued and stopped it.

While the officer called in information about the vehicle, the driver, Hunter, got out of his car and started back towards the police car. As the officer approached Hunter, passenger Hurston got out of the car and was pacing back and forth beside it. The officer believed that at any minute Hurston was going to run off. After the officer got names and birth dates from both men, he asked Hunter where he was coming from. Hunter replied that he was delivering insurance papers to a friend’s house, but he could not identify the friend or the address.

Another officer arrived. Both officers observed through the windows of Hunter’s car that the back seat was loaded with a television, a V.C.R., and a stereo system. One officer noticed a bulge in Hurston’s rear pocket and, thinking it might be a weapon, patted Hurston down. The bulge turned out to be a set of keys which the officer re- * turned to Hurston.

Hunter gave the second officer permission to look through the car. The officer discovéred speakers for the stereo system in the trunk. Both officers noticed that the television’s cable hook-up line had been cut rather than unscrewed. Hurston and Hunter were separated and placed in the back of the patrol cars.

A third officer who was patrolling the area was radioed and asked to investigate the condominiums near where Hunter’s parked car had first been seen. He discovered an empty stereo cabinet lying on the' ground outside a condominium, the door of which was open. He went in and noticed the imprint where the stereo cabinet had been and saw sections of cable lying on the carpet with a long cut section hanging from the wall outlet. The resident awoke, came out of her room, and was informed by the officer that her condominium had been burglarized.

The victim noticed a number of missing items, including her stereo, television, and keys. She told the officer that she had not given anyone permission to enter her home and remove the items. The officer radioed the first officer and said he had located a victim of a recent burglary.

In the meantime, Hunter was questioned about the items found in the car. He stated that he owned the equipment but misidentified the brand of the television. The third officer radioed the serial numbers on the missing items as given by the victim. The serial numbers matched those on the equipment in Hunter’s car.

After Hurston arrived at the station, he was questioned about the * set of keys found during the pat-down search. Hurston stated he did not have the keys. A search of the police car revealed a set of keys, identified as the victim’s, stuffed under the back seat. The keys had been hanging on a hook in the condominium on the evening of the burglary.

At the station, Hunter gave a written statement. He said he and Hurston had driven to the condominiums, found one with an unlocked door, and entered. Hurston unhooked the equipment and they loaded the items into the car.

After pleading guilty, Hunter was called as a State’s witness at Hurston’s trial. Hunter repudiated his signed statement by testifying that he alone entered the condominium and carried the equipment to his car. The officers testified that the size and weight of some of the equipment were too much for one person alone to have moved out of the condominium while negotiating the screen door and the unlevel ground. The victim testified that it originally required more than one person to put the television into her condominium.

Proof of Hurston’s recent, unexplained possession of the stolen goods was sufficient to create an inference that Hurston was guilty of the burglary of the goods. Bankston v. State, 251 Ga. 730 (309 SE2d 369) (1983). Such inference was corroborated by Hurston’s being in the vicinity of the burglary, by his nervous behavior when stopped by the officer, and by Hunter’s prior out-of-court statement which the jury was authorized to consider as substantive evidence. Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982). The inference together with the other probative evidence was sufficient to enable any rational trier of fact to find Hurston guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Howard v. State, 180 Ga. App. 817 (2) (350 SE2d 825) (1986).

2. Appellant contends the trial court erred in failing to charge the language of OCGA § 24-4-6. The record reveals that defendant did not object below to the failure to give the charge nor was any objection reserved for a motion for new trial or for appeal. Consequently, there is a procedural bar to consideration of the merits of appellant’s contention. Rivers v. State, 250 Ga. 303, 309 (7) (298 SE2d 1) (1982).

3. Appellant contends that the trial court erred by allowing the State, over objection, to introduce into evidence his three prior convictions for marijuana-related violations of the Georgia Controlled Substances Act, OCGA § 16-13-30, and a fourth conviction for theft by shoplifting, OCGA § 16-8-14, because he had not opened the door to the admissibility of bad character evidence.

During direct examination, Hurston testified that on the night of the burglary he and Hunter drank beer and smoked marijuana. Under cross-examination, he testified, “I ain’t done no burglary. I never have.” At the State’s urging, the trial court ruled that Hurston had put his character in issue and permitted introduction of the prior convictions.

The situation is controlled by the principles set forth in Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988). The defendant’s testimony that he committed the criminal act of smoking marijuana did not in and of itself place his character in issue within the meaning of OCGA § 24-9-20 (b). Id. at 759 (1) (b). As to defendant’s denial of commission of burglary, the State would have been permitted to introduce evidence proving the falsity, if any, of the defendant’s specific testimony, but the door was not open for the State to introduce evidence of the prior convictions unrelated and not relevant to the burglary on trial or to defendant’s testimony. Id. at 759 (1) (a) and (c).

Decided January 3, 1989.

Eddie C. Varnadore, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Debra H. Bernes, Thomas A. Cole, Assistant District Attorneys, for appellee.

The defendant did not place his character in issue within the meaning of OCGA § 24-9-20 (b). Consequently, the trial court erred in allowing the evidence of defendant’s prior convictions. The infected trial requires reversal of the judgment.

4. It is unnecessary to address appellant’s remaining two enumerations of error, which concern his sentencing, because of our decision in Division 3, supra.

Judgment reversed.

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


text:
    77140.
    EVANS v. RICHARDSON.
    (377 SE2d 521)
   Beasley, Judge.

Evans, defendant below with Sanders, appeals the grant of summary judgment to plaintiff Richardson.

Richardson sued defendants for $3,500 rent for farmland owned by him for the crop year 1986. The agreement was oral.

Defendant Evans filed for bankruptcy in July 1986, but did not list Richardson as a creditor. After the complaint was filed in the present case in January 1987, Evans sought unsuccessfully to reopen his bankruptcy proceeding to add Richardson.

Evans’ answer in this case raised the affirmative defenses of the Statute of Frauds, contending that the contract was one concerning real property and was for more than $500; discharge in bankruptcy; and failure to state a claim upon which relief could be granted.

The trial court granted summary judgment to plaintiff. The record included Evans’ submission of his affidavit and the transcript of his testimony before the bankruptcy court.

1. The fourth enumeration seeks to appeal the denial of Evans’ motion to dismiss for failure to state a claim, OCGA § 9-11-12 (b) (6). Since the court considered evidence and granted summary judgment, the motion to dismiss was subsumed and leaves nothing independent of it to review. Blasingame v. Blasingame, 249 Ga. 791, 792 (294 SE2d 519) (1982); Davidson v. American Fitness Centers, 171 Ga. App. 691, 693 (2) (320 SE2d 824) (1984).

2. Plaintiff Richardson’s affidavits stated that he rented the land to defendants and assigned to them his peanut allotment for 1986. The rental was $3,500, due January 1. He had the same agreement with defendants for the last three years. He never agreed to rent for any period longer than one year. Defendants’ agent or employee harrowed the land in 1986.

In response, Evans submitted an affidavit of February 14, 1988 which stated that “[d]uring a meeting with Edwin Richardson in May, 1986, or a month prior to May 1986, but in the year 1986,1 told Edwin Richarson [sic], that I would continue to rent his farm for the crop year of 1986 if a loan was approved and I obtained the operating funds to operate the farm.”

He further stated that he had rented the land continuously since 1984 for an indefinite period of time, but “I did not rent the land of [plaintiff] in 1986. I did not use the peanut Quota that was attached to the land. ... I did not rent any land or farm property from [plaintiff] during 1986 or for any crop year of 1986.”

During the hearing on his motion to reopen the bankruptcy proceeding on June 3, 1987, Evans’ counsel stated to the court “[t]here was a debt of Edwin Richardson .... And we would like to reopen the case to be able to add that debt and to be able to . . . discharge that debt.” Evans testified in discussing the 1986 period: “Q. You didn’t rent his peanut crop? A. I rented his peanut crop but . . . Q. Peanut allotment? A. I didn’t make any peanuts. . . . Q. But you do admit that you did rent Mr. Richardson’s farm? A. Yes.” Evans testified that he just forgot to list the debt when he originally filed for bankruptcy.

“[Wjhether on motion for summary judgment or at trial, it must be decided if the testimony of a party-witness is contradictory. On summary judgment this is a question for the judge to decide. It is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony. . . . [E]ven where testimony is contradictory, if a reasonable explanation is offered for the contradiction, the testimony will not be construed against the party-witness. The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge. [Cit.] On the other hand, a careless and untruthful witness may have simply forgotten what was said in the first statement, and tailored his second statement to meet the needs of the occasion without regard to the truth. . . . [S]urely the law will construe this contradiction.” Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986).

Thus, “on summary judgment the self-contradictory testimony of a party-witness, if a reasonable explanation is not offered for the contradiction, must be construed against the party-witness. That is, the favorable portions of the contradictory testimony are excluded. This rule of evidence applies even when the party-witness is the respondent rather than the movant in summary judgment. Prophecy, [supra].” Chapman v. Burks, 183 Ga. App. 103, 106 (2) (357 SE2d 832) (1987).

The trial court apparently recognized, as do we, that there was an unexplained inconsistency in the testimony and affidavit of Evans, thereby requiring that the favorable portions be disregarded. This conclusively established an enforceable oral rental agreement for the 1986 crop year between Evans and Richardson. OCGA § 44-7-2 (a).

3. The discussion in Division 2 negates the need to address the factual conflict urged in Evans’ first and fifth enumerations.

4. The second enumeration argues that the agreement was not just rental of land but also included the sale of goods of a value of more than $500, requiring a written contract under OCGA § 11-2-201. The reasoning is that the inclusion of the peanut allotment as part of the rental amounts to the sale of growing crops pursuant to OCGA § 12-2-107, requiring a writing pursuant to OCGA § 11-2-106 in order to be enforceable.

Evans’ uncontradicted testimony on this issue, however, shows that no crop was ever planted on the land in 1986. This reasoning must be rejected.

5. Evans urges in his third enumeration that there exists an issue of fact as to whether the debt should be deemed discharged in bankruptcy, even though that court refused to re-open the proceeding for that purpose, on the ground that Richardson had “actual knowledge” of the proceeding based on 11 USCA § 523 (a) (3) (A). It provides: “[a] discharge . . . does not discharge an individual debtor from any debt — ... neither listed nor scheduled under section 521 (1) of this title, with the name, if known to the debtor, of the creditor to whom such debt is owed, in time to permit — ... timely filing of a proof of claim, unless such creditor had notice or actual knowledge of the case in time for such timely filing-, . . .” (Emphasis supplied).

Richardson stated that he never received notice of the filing of the bankruptcy until Evans attempted unsuccessfully to open the proceeding in June 1987. The only contrary proof offered was defendant Sanders’ statement that “[d]uring a meeting with Edwin Richardson in October, 1986, I told [him] that John Russell Evans had filed bankruptcy.”

“Once the moving party for summary judgment had carried its burden of making out a prima facie case, the burden shifts and the opposite party must come forward with rebuttal evidence or suffer judgment against him. Meade v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357) (1977) [Cit.]” Bright v. Knecht, 182 Ga. App. 820, 821 (357 SE2d 159) (1987).

Decided January 3, 1989.

L. William Russell, for appellant.

Clayton A. Hall, for appellee.

“After a creditor has shown that he was not duly scheduled, the burden shifts to the defendant-bankrupt to prove that the creditor had notice or actual knowledge of the proceedings. [Cits.] Notice or knowledge must come at such a time as to give the creditor an equal opportunity with other creditors to avail himself of the benefits of the law and to participate in the administration of the estate of the bankrupt. [Cits.] ‘(A)ctual knowledge of the proceedings in bankruptcy,’ [11 USCA § 523], has been construed by one court to mean ‘knowledge of facts at least sufficient to apprise the creditor that a proceeding is actually commenced and where that proceeding is pending.’ [Cits.]” Brown v. Tucker &c. Assoc., 139 Ga. App. 740, 741 (1) (2) (229 SE2d 541) (1976).

Accepting Sanders’ statement, there is still no showing that such knowledge came in sufficient time to allow Richardson to assert his claim and share in the distribution, as required by the statute, or that it imparted the locale of the pending bankruptcy. The only pertinent facts shown concerning the proceeding are that Evans filed his petition on July 22, 1986, and his discharge was entered on December 2, 1986. Title 11 USCA Rule 3002 (c) provides that the proof of claim must be filed within 90 days after the first scheduled meeting of creditors, regarding which there is no evidence of record.

Summary judgment was appropriate.

Judgment affirmed.

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

       Although the brief names both Evans and Sanders as appellants, the notice of appeal was filed only for Evans and his appeal is all that is before us. OCGA § 5-6-37.


author: Birdsong, Judge.

text:
    77171.
    CARDEN v. MUNFORD, INC.
    (377 SE2d 524)
   Birdsong, Judge.

Appellant/plaintiff, Deborah Carden, appeals from the grant of summary judgment to appellee/defendant, Munford, Inc. Carden entered Munford’s convenience store in Marietta to make a purchase. Appellant’s response to appellee’s statement of undisputed material facts alleges that words were exchanged between Carden and the store manager, Trina Shaw. Carden asked to see the manager’s name tag and after receiving it, walked out of the store and gave it “to a friend waiting in a car just outside the door to write the name down.” There is no admissible evidence in the record as to what occurred, but appellee’s brief states that Carden took Shaw’s name tag and threw it into a car through an open sun roof. The complaint alleged Carden was “intentionally struck on the neck and face” by Shaw. This action was filed against Munford on the basis that it was “guilty of negligent hiring and supervision of its employees and is liable under the theory of respondeat superior.”

Appellee moved for summary judgment and filed affidavits of: (1) the individual who first hired Shaw and was her immediate supervisor, (2) the District Security Manager for Munford, who interviewed Shaw prior to her employment and performed a polygraph test on her in which he checked out her prior history, and (3) the Area Supervisor for Munford, which included overall responsibility for the store which was managed by Shaw.

Although appellant’s complaint was brought on the basis of negligent hiring and respondeat superior, appellate briefs of both parties show appellant “abandoned its charge of negligent hiring but maintained that the intentional tort committed was within the scope of Majik Market’s business . . .” and continued to assert that Munford “shall be liable for torts committed by his servant within the scope of his business. ...” Appellee’s affidavits dealt primarily with the allegation of negligent hiring by Munford but the area supervisor recounted what Shaw’s duties were and Munford’s policy toward its customers. Neither side introduced the affidavits of either Carden or Shaw, and there is no admissible evidence in the record as to what occurred during this incident. The trial court granted summary judgment for appellee and Carden filed this appeal. Held:

“The test for the grant or denial of summary judgment is whether there remains after consideration of the pleadings, depositions, answers to interrogatories, admissions on file and affidavits any genuine issue of material fact. [Cit.] The burden is on the movant to show that no material issue remains, and the pleadings will be construed and inferences from the evidence interpreted favorably toward making and retaining a genuine issue of fact.” Hansford v. Robinson, 255 Ga. 530, 531 (2) (340 SE2d 614).

When the movant for summary judgment is the defendant, as here, “ ‘the undisputed facts as disclosed by the pleadings and evidence must negate at least one essential element entitling plaintiff to recovery and under every theory fairly drawn from the pleadings and evidence [(Cits.)] and if necessary, prove the negative or nonexistence of an essential element affirmatively asserted by the plaintiff. [Cits.] And until movant has made a prima facie showing by evidence which demands a finding in his favor as to the particular matter, there is no duty upon the opposing party to produce rebuttal evidence.’ ” (Emphasis deleted.) Lawrence v. Gardner, 154 Ga. App. 722, 724 (270 SE2d 9); accord Shirley v. Bacon, 154 Ga. App. 203, 204 (267 SE2d 809).

Decided January 3, 1989.

Robert E. Richardson, for appellant.

Eve A. Appelbaum, Mary M. House, for appellee.

Pleadings which have not been pierced create issues for jury resolution. Cowart v. Five Star Mobile Homes, 161 Ga. App. 278, 280 (291 SE2d 13); Guthrie v. Monumental Properties, 141 Ga. App. 21, 22 (232 SE2d 369). In the instant case plaintiff alleged that Shaw intentionally struck her on the face and neck. This assault and battery occurred while plaintiff was a customer in appellee’s store and arose from a disagreement within the store. This allegation of intentional misconduct was predicated upon the theory of respondeat superior and states a cause of action. See Odom v. Hubeny, Inc., 179 Ga. App. 250 (345 SE2d 886). This pleading was not pierced by any evidence and remains as a jury issue. The trial court erred in granting summary judgment for appellee.

Judgment reversed.

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


text:
    77194.
    ROYAL v. THE STATE.
    (377 SE2d 526)
   Beasley, Judge.

Defendant appeals his convictions of trafficking in cocaine, OCGA § 16-13-31 (a), and possession of a firearm during the commission of a felony, OCGA § 16-11-106 (b) (4).

Defendant was arrested at the home of his wife’s cousin. An undercover agent had contacted Ms. Muns, the cousin, about purchasing six ounces of cocaine for which the agent was to pay $10,800. Ms. Muns had told the agent that she would contact her “friend” who would bring the cocaine to her house for the agent.

The agent wore a body bug during the transaction at the house and the resulting tape and a transcription of it, which were admitted in evidence, are the focus of the appeal.

1. We note first that defendant’s sentence and judgment was filed on December 4, 1986. A motion for new trial on the general grounds was timely filed on December 19. On February 23, 1988, an amendment to the motion for new trial was filed, dealing with the tape recording. The notice of appeal was filed on February 29, before the order denying the motion for new trial, which was filed on March 24.

“Even without a motion to dismiss the appeal, it is the duty of the reviewing court to entertain the threshold question of its jurisdiction where there may be any doubt. [Cits.]” Shirley v. State, 188 Ga. App. 357 (373 SE2d 257) (1988). As held in Shirley (Division 9), the premature notice of appeal became effective upon entry of the final judgment. Thus, we consider the enumerations.

2. Defendant urges that the tape was improperly admitted because no foundation was laid.

There were no pretrial motions addressed to the admissibility or accuracy of the tape and transcript. When the undercover agent testified, he identified State’s Exhibit 4, a cassette tape. He stated that it was a copy of the actual tape which was made by him on a “nagra” tape recorder as the events occurred. He further stated that the nagra recorder was capable of taking down human voices; he had previously used such a recorder; he had listened to Exhibit 4 and it was a correct recordation of what transpired during the incident; no changes, additions, or deletions had been made to it; the original nagra recording had been in the evidence room from the time it was made by him until the copy was made; he identified the voices of the individuals speaking on the tape; and he stated that all those persons were speaking freely and not due to duress. See Page v. State, 249 Ga. App. 648, 650 (2) (292 SE2d 850) (1982) and cases cited therein.

At the time that Exhibit 4 and Exhibit 6, the transcript of the tape, were tendered into evidence, the only objection made to either was that the tape being played was “a copy of the original.” The ground advanced in this court not having been raised below, we will not consider it here for the first time. Stokely v. State, 188 Ga. App. 489, 490 (2) (373 SE2d 230) (1988). This ground raised below is not argued here and is deemed abandoned. Rule 15 (c) (2),

3. The first enumeration contends that the denial of the motion for new trial was error in that the court “erred in its failure to have an incorrect transcript corrected thereby effectively denying the appellant his right to appeal because a complete and correct transcript of his trial is not available to [him].”

Defendant relies on OCGA § 5-6-41 (f) which provides a means for correction of a transcript or inclusion in it of omitted material. Defendant’s basis in this regard for claiming that he was entitled to a new trial was that the court reporter at the trial did not take down or transcribe what was emitted when the tape was played in open court for the jury to hear, so that the transcript of the evidence was incomplete.

The court did not err. While the tape was being played, each member of the jury, and defendant’s counsel, had a copy of a transcript which had been prepared in advance of trial from the original tape. The transcript was admitted in evidence without objection, and defendant does not claim that it deviates in any way from what was heard in court. Since defendant either has a copy of that exhibit or has access to one since it is in the record, he has not been prejudiced below or on appeal by the failure of the court reporter to record the evidence produced when the tape was played.

Decided January 3, 1989.

Jerry M. Daniel, for appellant.

Sam B. Sibley, Jr., District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Insofar as our reviewing the evidence is concerned, we are not hampered by the absence of a transcript of the tape’s emissions as heard by the jury because the tape itself is before us. Our hearing what the jury heard obviously provides a more direct and complete transmission of the evidence to our understanding than would a transcript of what a third person heard, took down, and transcribed in written form.

The absence of harm, even when there is error, affords no cause for reversal. Hazelrig v. State, 171 Ga. App. 942, 943 (1) (321 SE2d 437) (1984).

Judgment affirmed.

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


text:
    77204.
    BANKS v. AETNA CASUALTY & SURETY COMPANY.
    (377 SE2d 685)
   Beasley, Judge.

Banks appeals from an order granting Aetna’s motion for summary judgment.

On March 28, 1986, the stationary vehicle of Banks was struck by another vehicle which was turning left. She filed a claim with Aetna, under the PIP coverage of a motor vehicle insurance policy, for her personal injuries. She had been insured by Aetna since the mid-seventies, lately by a series of six-month policies. Her two policies following the date of the collision were renewed. However, on March 10, 1987 Aetna mailed her a notice of nonrenewal of the policy for the six-month period to begin April 21. The notification recited: “Your claims record shows losses on 11-16-84 (other party was hit in the rear), and 3-28-86 (other car hit you).” The notification met the requirements of OCGA § 33-24-45 and OCGA §§ 33-39-9, 10 and 11.

Banks, through her attorney, responded that in both incidents the fault was that of the other party and not hers. Aetna did not renew and on April 21, Banks obtained other insurance. She sued Aetna, contending that it violated OCGA § 33-9-40 (Ga. L. 1986, p. 1184, effective July 1, 1986) which provides: “No insurer shall surcharge the premium or rate charged on a policy of motor vehicle insurance or cancel such policy as a result of the insured person’s involvement in a multivehicle accident when such person was not at fault in such accident.” The predicate of her contention is OCGA § 33-39-3 (25) which states that “ ‘[termination of insurance coverage’ or ‘termination of an insurance policy’ means either a cancellation or nonrenewal of an insurance policy, in whole or in part, for any reason other than the failure to pay a premium as required by the policy.” She urges that the failure to renew her policy constitutes a cancellation for accidents in which she was not at fault.

Decided January 3, 1989.

Sonja L. Salo, for appellant.

Spearman, Dunham & Gaughen, William L. Spearman, for appellee.

The fact that, as described by the code section, the generic phrase “termination of insurance coverage” encompasses both cancellation or nonrenewal does not mean that cancellation or nonrenewal equate with one another. If OCGA § 33-9-40 forbade “termination” where a policy holder was not at fault Banks might be right. However, that code section employs instead the more restrictive term “cancel,” which does not include “nonrenewal.” While the insurance carrier could not cancel the policy for accidents not the fault of its insured, it was not prohibited from declining to renew the policy for that reason. OCGA § 33-24-45 makes a clear distinction between the requirements regarding the right to cancel and the right not to renew.

Banks further contends that Ga. L. 1988, p. 677, effective July 1, 1988, which amends OCGA § 33-24-45 and adds subsection (3) (C) (i) would prevent nonrenewal except under stated conditions, but this does not evince a legislative intent that, for the period in question under the law effective July 1, 1986, Aetna was prevented from exercising its choice not to renew the policy with Banks.

Judgment affirmed.

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


text:
    77289.
    LIBERTY NATIONAL FIRE INSURANCE COMPANY v. F & M BANK & TRUST COMPANY.
    (377 SE2d 528)
   Birdsong, Judge.

Liberty National Fire Insurance Company appeals the denial of its motion for summary judgment on the issue of bad faith penalties and attorney fees pursuant to OCGA § 33-4-6 and the grant of partial summary judgment to the appellee bank on the issue of liability. Held:

1. The trial court did not err in denying summary judgment to Liberty National on the issue of Liberty’s liability to the bank for $6,413.13, its proportionate share of coverage for fire damage to a house once owned by the insured, Hoffman.

Although Hoffman had sold the house to another party (Watts) in 1986, Hoffman’s mortgage debt to the bank remained $13,835.96. Watts assumed the mortgage, but to pay this off, Hoffman and Watts together borrowed $13,835.96 from the bank and Hoffman signed a personal guaranty making himself principally liable on the obligation. (Liberty National, and Hoffman by affidavit, assert that Hoffman had paid off the original promissory note and cancelled the security deed in 1984. The undisputed facts show that when Hoffman sold the property to Watts in 1986, Hoffman then had a mortgage and debt outstanding with the bank.)

Shortly before Hoffman had sold the house to Watts, he obtained fire insurance from Liberty National. The policy by endorsement of a “Mortgagee Clause” provides: “Loss, if any, under this policy shall be payable to first mortgagee . . . Farmers and Merchants Bank [endorsement effective April 15, 1986].” The mortgage clause also provides: “Loss . . . shall be payable to the mortgagee ... as provided herein, as interest may appear, and this insurance, as to the interest of the mortgagee . . . shall not be invalidated by any act or neglect of the mortgagor or owner of the . . . property . . . nor by any change in the title or ownership of the property. . . .” (Emphasis supplied.) When Hoffman sold the property to Watts on July 1, 1986, two and one-half months after obtaining this mortgage clause endorsement making the bank loss-payee, Hoffman did not cancel or change this endorsement. He continued to maintain the insurance coverage. Although he was no longer the owner of the property, he remained liable to the bank on his personal guaranty.

According to the express terms of the policy “Mortgagee Clause” endorsement, the bank remained loss-payee despite the fact that Hoffman, the “insured,” no longer held title or ownership to the property. He maintained the policy in force after he sold the property, and it is undisputed he owed money to the bank, not by mortgage, but by personal guaranty arranged to extinguish the mortgage outstanding when he sold to Watts.

There is no rule that provides a named specifically endorsed loss-payee mortgagee is not covered if it does not actually at the time of loss hold a mortgage in the name of the insured. To the contrary, we covered this general subject matter in Cherokee Ins. Co. v. First Nat. Bank of Dalton, 181 Ga. App. 146 (351 SE2d 473). With the naming of the mortgagee as loss-payee, as unaffected by any act of the insured, “ ‘the effect of such language ... is to create a separate and distinct contract on the mortgagee’s interest and to give it an independent status. [Cit.] Thus . . . the mortgagee may frequently recover although the insured . . . [may] not. . . .’” Id., p. 147.

Decided January 3, 1989.

Dennis & Corry, William E. Gray II, for appellant.

Swift, Currie, McGhee & Hiers, Michael H. Schroder, Thomas D. Martin, for appellee.

Under the comparable facts of that case, we held further that “[bjecause the destruction of the property by fire resulted in a direct pecuniary loss to [the bank], the mortgagee, whether the property was owned by [one person insured or another person], it had an insurable interest therein.” Id.

The policy language in this case, like that in Cherokee, expressly covered the mortgagee bank even though Hoffman had sold the property. Obviously this anticipates that even if he himself may have no mortgaged interest with the bank, the bank is still the loss-payee “mortgagee.” Under Cherokee, supra, and the express terms of the policy Mortgagee Clause endorsement, the bank was due coverage and the trial court did right to deny summary judgment to Liberty National.

Moreover, it is clear that since Hoffman by virtue of the mortgage debt he did owe when he sold the property to Watts, and which he extinguished by executing a personal guaranty to the bank, had every good reason to maintain this insurance as he did, especially including the Mortgagee Clause endorsement.

2. Because of the express language in the Mortgagee Clause endorsement, making the mortgage bank loss-payee despite the fact that he did not then have title or ownership; and because Hoffman kept this policy in force after he extinguished his mortgage and made himself liable by personal guaranty, we are unable to say as a matter of law that the trial court erred in leaving to the jury the questions of bad faith penalties and attorney fees against Liberty National for refusal to pay.

Judgment affirmed.

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


text:
    77401.
    BENFORD v. THE STATE.
    (377 SE2d 530)
   Beasley, Judge.

Defendant, convicted of burglary with intent to commit rape, OCGA § 16-7-1 (a), and aggravated assault, OCGA § 16-5-21 (a) (1), appeals.

The charged crimes occurred on August 2, 1983, when a man entered the victim’s house by an unlocked back door and attempted to rape her.

Defendant was arrested nearby within minutes, carrying a brown paper sack and wearing clothing as described by the victim. He was then taken to the victim’s house where she positively identified him as her assailant. She also identified him at trial.

Defendant was originally tried for these crimes in February 1984, in a non-jury trial which was apparently not taken down.

Thereafter, the attorney who represented him was disbarred and defendant’s request for habeas corpus relief was granted, resulting in the trial here appealed.

1. The victim was sitting on her front porch when she saw a man walk by her house carrying a brown paper sack. A few minutes later, her grandson came out of the house and told her there was a man in the house going through her purse. When she went to investigate, she saw a brown paper bag sitting on the pool table. As she walked by the table, she saw the man who then assaulted her, attempting to get her underwear off. She struggled with him for several minutes, during which he hit her in the mouth, loosening several of her teeth. Her grandson went to get her daughter-in-law who lived nearby. The assailant left by the back door when he heard her coming. She saw a man climbing over the back fence.

The victim’s husband, who had been asleep elsewhere in the house, called the police. A description was broadcast and Officer Lawson, patrolling about a half mile from the crime scene, saw defendant walking down the street carrying a brown sack and looking over his shoulder. She picked him up and took him to the scene where he was identified.

Prior to their arrival, the victim found in the area of the struggle “three or four buttons.” She stated that she knew they had not been there before because she kept her small granddaughter and always kept the floor clean because the child played on it.

The victim recalled giving the buttons to Officer Lawson. Lawson recalled that there were “buttons” missing from the suspect’s shirt and the shirt appeared to have been torn. She later stated that “a button” was missing. She did not recall receiving the buttons from the victim, but stated that if she had, she would have turned them over to the investigating officer who was with the victim at the house.

Defendant filed a motion seeking any exculpatory material, i.e., a Brady motion, and a request for discovery seeking “[a] detailed description of all physical items which the State anticipates using in the trial of the Defendant and the exact place where and under whose custody such items are being held.”

Prior to trial, defendant made an oral motion in limine seeking to exclude testimony concerning the button or buttons and the torn shirt. The basis for the motion was that a critical element of the defense was comparing the button and the shirt worn by defendant to show that they did not match. Also, defendant urged that the prejudicial value of the testimony was “just too great without the defense having an opportunity to inspect the shirt and button.”

After the court denied this motion and heard evidence concerning the showup, defendant made another oral motion that all testimony concerning the lunch bag be excluded, on the same ground.

It is unclear which, if any, of these physical items were introduced at the first trial. What is clear is that all of these items had disappeared in the years between the first and second trial and were not available to either side during this trial.

An objection that evidence is “prejudicial” to a party is too vague and general to present any question for determination by the trial court. Sultenfuss v. State, 185 Ga. App. 47, 49 (4) (363 SE2d 337) (1987). Of course, any evidence which goes to prove a defendant’s guilt is prejudicial to him, but that will not make that evidence inadmissible.

To the extent that defendant challenged the testimony on the ground that the State’s failure to produce the items due to their loss amounted to a Brady violation, it will be considered. See State v. Johnson, 249 Ga. 413, 415 (3) (291 SE2d 543) (1982).

The lower federal court cases cited here are not binding on this court unless adopted by it. Head v. State, 253 Ga. 429, 430 (1) (322 SE2d 228) (1984); Felker v. State, 252 Ga. 351, 361 (1 b) (314 SE2d 621) (1984). It is not necessary to consider the persuasiveness of the cited federal cases since our courts have also ruled on the issue presented.

When a due process violation is claimed under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), it is necessary that the defendant indicate the materiality and the favorable nature of the evidence. “The ‘[defendant . . . has the burden of showing that the evidence withheld from him so impaired his defense that he was denied a fair trial within the meaning of the Brady Rule.’ [Cit.]” Wallin v. State, 248 Ga. 29, 33 (279 SE2d 687) (1981); Stevens v. State, 242 Ga. 34, 36 (1) (247 SE2d 838) (1978); Potts v. State, 241 Ga. 67, 74 (5) (243 SE2d 510) (1978).

There was no showing that the evidence sought was favorable. To the contrary, during argument on the motion in limine, defendant acknowledged through counsel that the evidence could have been inculpatory. Defendant has failed to show a Brady violation.

Although the record is not clear as to the whereabouts of the button, shirt, and bag, even when evidence is lost a conviction need be overturned only on a “showing of bad faith or connivance on the part of the government, or a showing that the defendant was prejudiced by the loss of the evidence. West v. State, 251 Ga. 458, 460 (3) (306 SE2d 909) (1983).” Burson v. State, 183 Ga. App. 647, 649 (4) (359 SE2d 731) (1987). Defendant, who was wearing the shirt when arrested, offered no testimony to show that only one button was missing from his shirt but more than one was tendered to the officer, or that the buttons did not match his shirt, or that no buttons were missing. Nor was the investigating officer called as a witness. Mitchell v. State, 184 Ga. App. 181, 182 (361 SE2d 51) (1987).

Decided January 3, 1989.

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Robert E. Houman, Assistant District Attorneys, for appellee.

There was no error.

2. Defendant also urges that the trial court erred in “the denial of a new trial” on the general grounds. The record reflects no motion for new trial below, leaving nothing for us to review in this regard. We have, however, reviewed the evidence under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) and it is sufficient.

Judgment affirmed.

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


text:
    77511.
    McIntyre v. The State.
    (377 SE2d 532)
   Beasley, Judge.

Defendant was charged with possession of more than one ounce of marijuana (OCGA § 16-13-30 (a)) as a result of a search pursuant to a warrant of the home occupied by her and Clarence McIntyre. The indictment was returned on April 21, 1988. On May 17 she filed her motion to suppress contesting the sufficiency of the affidavit upon which the warrant was issued and further requesting return of the items seized, including $59,100 in cash.

On June 2 a motion for nolle prosequi was filed and granted. OCGA § 17-8-3. Defendant was unaware of that order until her hearing on June 7 on her motion to suppress. She was advised of the nolle prosequi but asserted her right to pursue the return of property seized even if the nolle prosequi order had been entered.

Defendant appeals both the entry of the nolle prosequi without her consent and the failure of the court to return the cash.

1. The first two enumerations claim error in the State’s submission of the motion for and the court’s entry of the nolle prosequi order ex parte. A nolle prosequi pursuant to OCGA § 17-8-3 may be entered without the consent of the accused at any time prior to the attachment of jeopardy. Newman v. State, 166 Ga. App. 609 (305 SE2d 123) (1983); Fortson v. State, 13 Ga. App. 681 (79 SE 746) (1913). Jeopardy not having attached, Shaw v. State, 239 Ga. 690, 692 (1) (238 SE2d 434) (1977); White v. State, 143 Ga. App. 315, 319 (4) (238 SE2d 247) (1977), the entry without consent of defendant was not error.

Decided January 3, 1989.

Herbert Shafer, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.

To the extent that defendant complains of alleged violations of the Canons of Ethics governing attorneys and of the Code of Judicial Conduct, those complaints are not properly made to this court.

2. Defendant also contends that the court’s refusal to hear and rule upon her motion for return of the money violated her rights under the Fourth, Fifth and Fourteenth Amendments to the Federal Constitution.

There is presently pending before another panel of this court State u. McIntyre (case no. A89A0123). In that appeal the State seeks reversal of another Clayton County judge’s order which specifically finds that the $59,100 at issue here is not presently in the possession of the State, having been turned over to the United States and now the subject of a federal forfeiture action, but then it orders the State to return the money to Clarence McIntyre.

That order, entered July 19, 1988, moots the question presented by Ms. McIntyre in this action. Her further causes of action, if any, lie against either the United States of America or Clarence McIntyre.

Judgment affirmed.

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


text:
    77517.
    FIRST NATIONAL BANK OF LOUISVILLE, KENTUCKY v. CHILDRESS-ROSS PROPERTIES, INC. et al.
    (377 SE2d 533)
   Banke, Presiding Judge.

This appeal is from the denial of an application seeking the confirmation of certain foreclosure sales conducted under the power of sale provisions contained in seven separate security deeds. See generally OCGA § 44-14-161. The properties at issue consist of a total of 12 residential condominium units located in five different buildings in a development known as Roswell Landings. The appellant was the only bidder at the foreclosure sales and took title to the units on the basis of bids totalling $714,831.36, an amount which was less than the total balance owed on the loans secured by the seven security deeds. The appellees presented expert opinion testimony to the effect that the total value of the properties at the time of the sale had been $884,975. While acknowledging that the total value of all the properties would exceed the total amount bid at the foreclosure sales if the properties were disposed of separately, the appellant’s expert testified that the total market value of the units would be only about $655,000 if sold collectively to a single purchaser.

At the hearing on the confirmation petition, the appellant took the position that because of the added expenses which would be incurred if the properties were sold individually, their true market value was more accurately reflected by the “wholesale” price which they would bring if sold together. However, the trial court rejected this method of valuation, concluding that because they “were handled by separate security instruments, separate loans, separate legal descriptions, and separate appraisals,” the properties involved in each of the seven foreclosure sales would have to be considered separately. Based on that conclusion, the court found that the total market value of all the properties at the time of the foreclosure sales was “substantially higher” than the $714,000 bid by the appellant, and he thus denied the application for confirmation. Held:

The appellant argues that if it marketed and sold the 12 properties individually, it would lose the time value of the money tied up in them and would incur additional expenses for such items as condominium fees, insurance premiums, taxes, marketing fees, brokers’ fees, management and administrative costs, and closing costs. Hence, it maintains that if the properties are to be valued at their “retail” rather than their “wholesale” price, their “true market value” ought to be determined by deducting these “necessary” costs from the total amount a willing purchaser would pay for the properties.

In Wheeler v. Coastal Bank, 182 Ga. App. 112 (354 SE2d 694) (1987), this court rejected a virtually identical contention by a lender in a confirmation proceeding, holding that “[t]he focus of [the] definition [of market value] is the price that two parties agree will be paid for the property itself, without consideration of such collateral issues as the financial responsibility for or the nature and amount of expenses and closing costs to be paid to others in connection with buying or selling it.” Id. at 114. A contrary conclusion was not expressed in Marion G. Davis, Inc. v. Cameron-Brown Co., 177 Ga. App. 646 (340 SE2d 216) (1986). In that case, there was only one security deed, pertaining to an entire, partially constructed condominium complex. Noting that the security deed contained no language requiring the lender to sell the property in individual units, the court simply held that the superior court was not required to add together the true market values of each of the separate units but was permitted to treat the property as a “single investment opportunity” in determining its true market value. Id.

Decided January 3, 1989.

Troutman, Sanders, Lockerman & Ashmore, Mitchell S. Rosen, for appellant.

Thomas S. Bentley, Edwin A. Tate, for appellees.

“At a confirmation hearing, ‘the judge sits as the trier of fact and his findings and conclusions have the effect of a jury verdict; therefore, the trial judge’s findings should not be disturbed by this court if there is any evidence to support them. [Cits.]’ Fleming v. Federal Land Bank, 144 Ga. App. 371, 372 (2) (241 SE2d 271) (1977).” Thomas v. Henry, 150 Ga. App. 792, 793 (2) (258 SE2d 710) (1979). Since the appraisals offered by both parties supported the trial court’s conclusion that the market value of the units involved in the present case had exceeded the amount bid for them at the foreclosure sales, we hold that the trial court did not err in denying the confirmation petition.

Judgment affirmed.

Birdsong and Beasley, JJ., concur.


text:
    77532.
    BENNETT et al. v. BEAN.
    (377 SE2d 534)
   Banke, Presiding Judge.

This appeal follows the return of a verdict for the defendant in an action to recover for property damage arising from an automobile collision.

Defendant Bean agreed to perform body repair work on a Mazda automobile belonging to Bennett. Under the terms of their oral agreement, Bean was to attempt to sell the vehicle for a minimum price of $2,700 after completing the repairs and was authorized to retain any proceeds received in excess of that amount. In the event he was unable to procure a purchaser within 30 days, the car was to be returned to Bennett, who would then pay Bean an unspecified amount for the repairs.

Approximately three weeks after taking delivery of the car, Bean began drinking beer at his body shop and continued to do so “all evening” until 11:00 p.m., when he left the shop driving Bennett’s Mazda. By his own admission, he thereupon “fell asleep” at the wheel and collided with a parked car, causing $6,595 in damage to the Mazda.

Decided January 3, 1989.

Stephen H. Harris, for appellants.

Grady K. Reddick, for appellee.

The vehicle was insured under an automobile insurance policy issued to Bennett by Chicago Insurance Company, which paid policy benefits to Bennett in the amount of $5,602.50 and then brought the present action against Bean seeking subrogation damages. Bennett is also named as a plaintiff in the action.

1. The appellant-plaintiffs contend that the trial court erred in denying their motion for new trial on the general grounds. See generally OCGA §§ 5-5-20; 5-5-21. The complaint alleged that a bailment had been created when the vehicle was entrusted to Bean and that, by operating the vehicle in a negligent and careless manner, Bean had thereafter violated his duty to exercise reasonable care and diligence in protecting the bailed property. See OCGA §§ 40-12-40; 44-12-43. The evidence introduced at trial supported these allegations without dispute. Consequently, the verdict is contrary to the evidence, and the trial court erred in denying the motion for new trial.

2. A review of the charge to the jury in its entirety reveals that it was not misleading. See generally Davis v. MARTA, 186 Ga. App. 366 (367 SE2d 885) (1988).

Judgment reversed.

Birdsong and Beasley, JJ., concur.


text:
    77640.
    BYRD et al v. McKINNON.
    (377 SE2d 686)
   Banke, Presiding Judge.

The appellants bring this appeal from the denial of their caveat to an application for a year’s support which was filed by the appellee as the surviving spouse of the appellants’ deceased mother. The appellee and the decedent had been married for 28 years prior to her death. The appellants are the decedent’s three children from a prior marriage. Each was already over 18 years of age at the time of their mother’s marriage to the appellee.

At issue in this appeal is whether the trial court erred in awarding to the appellee the decedent’s one-half interest in the marital home which had been jointly purchased and owned by the couple as tenants in common. Had there been no year’s support application, the appellee would still have been entitled to one-fourth of the decedent’s one-half interest in this property pursuant to the laws of intestacy, leaving the three appellants with a 3/8 undivided interest in the property. The value of the house was about $24,000. The only other property in the estate consisted of the decedent’s interest in two automobiles and the furniture, household goods, and appliances owned by the couple.

The appellants acknowledge that, as surviving spouse, the appellee was entitled to a year’s support as a matter of law. See OCGA § 53-5-1; Gentry v. Black, 256 Ga. 569 (351 SE2d 188) (1987). However, they complain that in determining the amount to be awarded the trial court erroneously failed to give proper consideration to their request that the appellee only be given a life estate in their 3/8 undivided interest in the house. They contend that the trial judge’s failure in this regard is demonstrated by his expression of improper concern over such possibilities as whether the grant of a life estate would give rise to future disputes over who was responsible for maintenance expenses, taxes, and insurance premiums on the property and whether it would “tie-up” the property in such a manner as to prevent the appellee from using it as collateral in a financial crisis. Held:

“The amount to be set apart. . . shall be an amount sufficient to maintain the standard of living that the surviving spouse . . . had prior to the death of the testator or intestate, taking into consideration the following: (1) The support available to the person, for whom the property or money is to be set apart, from sources other than year’s support, including but not limited to any separate estate and earning capacity of that person; and (2) Such other relevant criteria as the court deems equitable and proper.” OCGA § 53-5-2 (c). (Emphasis supplied.)

The trial court found that the total value of the appellants’ interest in the decedent’s estate was at most about $10,000, and the appellants do not take issue with that finding. This means that, after deduction of the $1,600 minimum amount required by OCGA § 53-5-2 (b) to be set aside as a year’s support, the total amount at issue in this case is about $8,400. It was shown that the appellee had various health problems; that his only source of income was from social security and worker’s compensation disability payments, that he had no significant assets except for the property he had owned with his wife, that he and his wife had purchased the property in 1964 for four or five thousand dollars, and that he personally had made several major improvements to the house since that time. The judgment of the trial court in this case was amply supported by the evidence, and we find no indication whatever that the court abused its statutory discretion or considered any improper criteria in determining the amount to be set aside to the appellee as a year’s support.

Judgment affirmed.

Birdsong and Beasley, JJ., concur.

Decided January 3, 1989.

Sell & Melton, Carl E. Lancaster, Jr., Edward S. Sell III, Kenneth B. Banks, for appellants.

Randall P. Harrison, for appellee.


text:
    77652.
    In the Interest of E. P. M. et al.
    (377 SE2d 535)
   Beasley, Judge.

This is a direct appeal by the maternal grandmother and her husband from an order of the probate court revoking their letters of guardianship and terminating their guardianship of two minor granddaughters. The appeal must be dismissed because it is procedurally infirm.

The case originated in the Probate Court of Clayton County when appellants filed a petition for letters of guardianship on November 6, 1981. The petition was accompanied by the natural mother’s consent to the guardianship. An order appointing appellants as the children’s guardians and letters of guardianship issued on December 7, 1981. Six years went by, and on March 3, 1988, the natural mother petitioned to dissolve the guardianship. On April 8, she moved to set aside the letters of guardianship because of lack of subject matter jurisdiction and jurisdiction of the parties. After a hearing at which the children were represented by a guardian ad litem, the probate court revoked the letters and terminated the guardianships.

Under the provisions of OCGA § 15-9-120 et seq., effective July 1, 1986, appeals of “civil cases” as defined in OCGA § 15-9-120 (1) from certain probate courts as defined in subsection (2) of that statute are no longer de novo in the superior court but instead either party has the right of appeal to the Supreme Court and this Court, as provided by Chapter 6 of Title 5 of the Code. OCGA § 15-9-123 (a). The Act applies to all cases filed on or after its effective date, July 1, 1986. Ga. L. 1986, p. 982 at 995. This case falls within the subsection (2) category. OCGA Vol. 42, 1988 Cum. Supp. 278; Martindale-Hubbell Law Directory 999 (Vol. II 1988).

It is noted that an appeal from the termination of guardianship involving the termination of parental rights would be a direct appeal rather than one requiring application for discretionary review under OCGA § 5-6-35 (a) (2). See In re S. N. S., 182 Ga. App. 803 (357 SE2d 127) (1987); see also Hays v. Jeng, 184 Ga. App. 157 (360 SE2d 913) (1987).

Apparently, because the original petition for guardianship was filed in the probate court prior to the effective date of the new appeal provisions and the mother’s petitions to dissolve the guardianship were filed in the same case after the effective date, appellants appealed both to this Court and de novo to the superior court in order to preserve their right to appeal.

Decided January 3, 1989.

Beverly B. Harris, for appellants.

Monroe Ferguson, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.

Appellants’ caution is rewarded because, even though the subject decision directly addresses the mother’s 1988 petition, the guardianship case remained pending and was not finally disposed of until the order which ended the guardianships before the children reached majority. Since the origin of the case far predates the effective date of the Act, jurisdiction of the appeal properly lies in the superior court. See the estate case of Porter v. Frazier, 257 Ga. 614 (361 SE2d 825) (1987), which is analogous in that it is also characterized as a single “pending case” although various petitions were filed.

The appeal in this Court is dismissed without prejudice to the parties to pursue their de novo appeal in the superior court. Id.

Appeal dismissed.

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


text:
    77706.
    DYKES v. FEDERAL LAND BANK OF COLUMBIA.
    (377 SE2d 537)
   Banke, Presiding Judge.

The Federal Land Bank initiated a dispossessory proceeding against Larry J. Cook, as its predecessor in title, and against appellant Dykes, as Cook’s tenant, to obtain possession of certain property the bank had acquired from Cook by foreclosure. A hearing was held at which the bank presented evidence that it had unsuccessfully demanded possession of the premises from the defendants, that it had never received any rental payments from them, and that it had not otherwise consented to their remaining on the property. Mrs. Dykes, who made a pro se appearance at the hearing, maintained that she had attempted without success to purchase or lease from the bank the portion of the property she was occupying. Her only claim to the property was based on her statement that Cook and his father had promised her she could stay there as long as she wished. The trial court granted a writ of possession to the bank, and this appeal followed. Held:

As a tenant at sufferance, the appellant was subject to summary dispossession by the bank as the legal titleholder to the land. The bank established at the hearing that it had satisfied all the requirements for a writ of possession pursuant to OCGA § 44-7-50 et seq. See West v. Veterans Administration, 182 Ga. App. 767 (1) (357 SE2d 121) (1987); Stevens v. Way, 167 Ga. App. 688 (5) (307 SE2d 507) (1983). Ms. Dykes’ assertion that her constitutional rights were violated because her presence in the courtroom was never recognized is refuted by the transcript of the hearing. Her complaint that she was denied the right to a jury trial is also without merit, inasmuch as “[t]here is no right to trial by jury in a summary dispossessory action. [Cits.]” West v. Veterans Administration, supra at 768 (2). See also Green v. Carver State Bank, 178 Ga. App. 798 (3) (344 SE2d 507) (1986). It follows that no ground for reversal of the trial court’s judgment has been shown.

Decided January 3, 1989.

Jessie Dykes, pro se.

Kirbo & Bridges, David A. Kendrick, for appellee.

Judgment affirmed.

Birdsong and Beasley, JJ., concur.


text:
    77743.
    HAIRSTON v. AUTO-OWNERS INSURANCE COMPANY.
    (377 SE2d 538)
   Deen, Presiding Judge.

The appellant, Shawn Hairston, was injured on June 1, 1985, when the pick-up truck on which he was a passenger was struck by another vehicle. The pick-up truck was owned by Lewis Lockerman, who had an automobile insurance policy issued by the appellee, Auto-Owners Insurance Company. Lockerman had allowed his nephew, John Bryant, and several of Bryant’s friends to drive the truck to Florida after a high school graduation. Lockerman personally never reported the incident to the appellee because his truck was not damaged and the other driver was at fault.

On September 10, 1985, Hairston’s attorney submitted a PIP claim form, a copy of the accident report, and various medical bills to an insurance agency, which passed the material on to another insurance agency that was the appellee’s agent. On September 12, 1985, Hairston’s attorney provided verification of Hairston’s salary for the PIP claim. These communications referenced John Bryant as the named insured and owner of the truck, a 1984 Ford Ranger as the vehicle, State Farm Insurance Company as the insurer, and the insurance policy number as 4721867D0611. The appellee, however, had issued a policy to Lockerman, not Bryant, as the named insured, with the policy number of 840118 03021662, covering a 1983 Ford Ranger owned by Lockerman. The policy did not contain a vehicle identification number. Bryant was listed as a member of Lockerman’s household and as an additional driver.

Decided January 3, 1989.

Chambless & Chambless, Vernon L. Chambless, Sylvester & Associates, Chuck Sylvester, for appellant.

Martin, Snow, Grant & Napier, John C. Edwards, John C. Daniel III, for appellee.

Thomas W. Bennett, James E. Butler, John M. Hyatt, amici curiae.

In an attempt to ascertain whether the 1984 Ford Ranger truck actually was the 1983 Ford Ranger covered under Lockerman’s policy, the appellee made five written requests to Lockerman for him to contact the appellee to discuss the matter. Lockerman did not contact the appellee until November 19, 1985, at which time the appellee determined that the policy mistakenly listed a 1983 rather than a 1984 vehicle. Before payment of the claim could be made under the policy, however, an endorsement amendment had to be issued. Such an endorsement was requested on December 6, 1985, and issued on December 23, 1985. Payment of Hairston’s claim occurred on the same day as the issuance of the endorsement.

Hairston commenced this action on December 3, 1985, seeking attorney fees and punitive damages for the appellee’s tardy payment of the claim. The trial court granted summary judgment for the appellee, and this appeal followed. Held:

The question of reasonableness of an insurer’s failure to pay a claim within the 30/60 day time periods allowed under OCGA § 33-34-6 (b), (c) usually is for jury resolution, “but there are instances in which it can be decided as a matter of law by the court. [Cit.]” Falagian v. Leader Nat. Ins. Co., 167 Ga. App. 800 (307 SE2d 698) (1983). In this case, Hairston’s notice of claim submitted to the appellee provided the wrong name for the insured, the wrong name of the insurance company, the wrong policy number, and a different year model of vehicle. Immediately upon clearing up the confusion, the appellee proceeded to obtain the necessary endorsement and pay the claim. As did the trial court, we find no genuine issue of fact that the delay in payment of Hairston’s claim resulted from the misinformation provided by Hairston, rather than any bad faith refusal to pay, and the trial court properly granted summary judgment for the appellee.

Judgment affirmed.

Sognier, J., concurs. Carley, C. J., concurs in the judgment only.


text:
    77910.
    THOMAS v. THE STATE.
    (377 SE2d 539)
   Banke, Presiding Judge.

The appellant was charged with murder and found guilty of voluntary manslaughter. She appeals from the denial of his motion for new trial.

The appellant and the victim became embroiled in an argument at a neighbor’s house after they had been drinking. The appellant eventually ran into her house, while the victim went his separate way at the request of the appellant’s brother. According to eyewitness testimony, the victim returned shortly thereafter and began “cussing” the appellant from the latter’s porch. The appellant thereupon emerged from her house with a gun and fired three shots. The fatal shot struck the victim in the back as he was running away. While the appellant testified that the victim had threatened her with a knife, no such weapon was found, and none of the eyewitnesses had observed such a weapon in the victim’s possession. Held:

1. The appellant contends the evidence was insufficient as a matter of law to refute her claim of self-defense. “A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. ...” OCGA § 16-5-2 (a). A person is justified in using force which is likely to cause death or bodily harm “only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself. . . .” OCGA § 16-3-21 (a). On the basis of the evidence presented at trial, a rational trier of fact could reasonably have concluded beyond a reasonable doubt that the fatal shot was not fired in self-defense. Accordingly, the trial court did not err in rejecting the general grounds of the appellant’s motion for new trial. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant contends the state should not have been allowed to bring to the jury’s attention evidence that she had previously thrown bottles at another individual during an argument with that individual just prior to the shooting. “Evidence showing intent, motive . . . and bent of mind is admissible although such evidence may also place in issue the character of the defendant. [Cits.] ‘The conduct of the accused, before, at the time of, and immediately following the [crime] is relevant, and any evidence showing this conduct is admissible.’ [Cit.]” Johnson v. State, 182 Ga. App. 822 (357 SE2d 161) (1987). Since the evidence in question was reflective of the appellant’s state of mind on the morning of the event, and since her state of mind was the primary focus of the trial, we hold that the admission of this evidence was proper.

Decided January 3, 1989.

Ken Gordon, for appellant.

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong and Beasley, JJ., concur.


author: Carley, Judge.

text:
    77216.
    BEVENS v. TUTEN.
    (377 SE2d 516)
   Carley, Judge.

In 1978, appellant was appointed administratrix of the estate of her intestate father and, as a condition of appellant’s appointment, the probate court required that she post a surety bond. Appellant procured the required surety bond from appellee-plaintiff. Under the pertinent terms of the contract, appellant “covenant[ed] and agree[d] to pay in advance the premium or fees agreed upon to wit: $460.00 upon execution of the bond and annually in advance thereafter; until [appellee] is furnished with satisfactory and conclusive evidence of the termination of [his] liability under this bond. ...” Notwithstanding the terms of the contract, appellant ceased payment of the bond premiums to appellee after 1979, even though she had neither secured her own discharge as administratrix nor otherwise furnished appellee with evidence of the termination of his liability under the bond. In 1980 and again in 1981, appellant was cited by the probate court for her failure to pay the premiums and to submit the required accountings to appellee. Appellant did eventually petition for her discharge as administratrix in 1981 and a hearing, which appellant did not attend, was held on her petition. No order of appellant’s discharge was ever issued, however, because a claim had been filed against the estate and because appellant had failed to file certain reports required by law. Since 1981, appellant has made no other attempt to secure her discharge as the administratrix.

The present case arises from the “Petition Against Defaulting Administratrix” which appellee filed in the probate court in 1987. In the petition, appellee sought payment from appellant of the surety bond premiums for the years 1980 through 1987 and the issuance of an order of discharge as appellant’s surety. See OCGA §§ 53-7-38; 29-2-52. Following a hearing, the probate court entered an order which required that appellant pay the past due premiums plus interest and which granted appellee’s request to be discharged as appellant’s surety. Appellant filed a de novo appeal to the superior court. The superior court granted appellee’s motion for summary judgment. Appellant appeals from that grant of summary judgment in favor of appellee.

1. Appellant enumerates the superior court’s grant of summary judgment in favor of appellee as erroneous, urging that genuine issues of material fact remain as to her liability for the surety bond premiums because she denies receipt of any notice from appellee that the premiums had become due. According to appellant, this evidence is material to her non-liability for premium payments because it would authorize a finding that appellee had unilaterally renewed the bond without obtaining her consent.

It is undisputed that appellant has never secured her own discharge as administratrix, and that it was not until 1987 that the probate court ordered the discharge of appellee as appellant’s surety. Accordingly, appellant remained contractually liable for the payment of the annual premiums until 1987 and any factual dispute as to whether appellant had received notice that those premiums had become due would not create a genuine issue of material fact. Pursuant to the clear and unambiguous terms of the parties’ controlling agreement, neither appellee’s continuing liability as surety nor appellant’s continuing liability for premium payments was made dependent upon any further notification that premium payments were due. Instead, it was agreed from the very outset that appellee would continue to serve as surety and that appellant would continue to make annual premium payments until such time as appellee was furnished evidence of his legal release from the bond obligations. Under such a contractual provision, the giving of any future notice by appellee to appellant that a payment had become due would have no bearing upon appellee’s obligation to continue to serve as appellant’s surety or upon appellant’s obligation to continue to make premium payments. The parties’ mutual obligations were continuing rather than renewable ones and any attempt by appellant or appellee to terminate the contract prematurely, either unilaterally or by mutual agreement, would be ineffectual. “Unless a contrary provision appears in the bond itself, the " surety is bound by his agreement to see the administration through to the end, and this obligation cannot be terminated earlier except in a way for which provision has been made by statute.” Great American Indem. Co. v. Jeffries, 65 Ga. App. 686, 688 (16 SE2d 135) (1941).

Accordingly, the undisputed relevant evidence of record shows that the surety bond and its underlying obligations were not subject to annual renewal, but were to remain in effect until such time as terminated either by the discharge of appellant as the administratrix or under such limited conditions for appellee’s earlier discharge as were provided by statute. Thus, appellant had a continuing contractual obligation to pay appellee the premiums on the surety bond, notwithstanding any lack of notice of premium payments or any attempt by either or both of the parties to terminate the agreement without the intervention of the probate court.

2. Appellant further contends that appellee’s claim for past due premiums is barred by the statute of limitations.

“ ‘[U]nder an entire indivisible contract, the statute [of limitations] begins to run when and only when the services are terminated or the work is completed, although the work may consist of numerous parts or items, and although the contract provides that the compensation shall be made at stated intervals, or in installments.’ [Cits.]” Burns v. Mitchell, 55 Ga. App. 862, 863 (2) (191 SE 870) (1937). “ ‘In determining whether the contract is entire or severable, the criterion is to be found in the question whether the whole quantity, service or thing — all as a whole — is of the essence of the contract. If it appears that the contract was to take the whole or none, then the contract would be entire. [Cit.]’ [Cits.]” Burns v. Mitchell, supra at 862. The surety bond here in issue was clearly an entire, rather than a severable, contract. Under its terms, appellee proposed to see the administration of the estate of appellant’s father through to the end without any limitation as to time period. Appellant contracted for appellee to serve as her surety throughout administration of the estate. The claim for past due premiums was made prior to the termination of appellee’s duties under the contract. Accordingly, appellee’s claim was not barred by the statute of limitations.

3. Appellant further urges that appellee should be estopped from asserting a claim for unpaid premiums because of his notification to her of the unilateral termination of the bond in 1982.

“ ‘Since the whole doctrine [of estoppel] is a creature of equity and governed by equitable principles, it necessarily follows that the party who claims the benefit of an estoppel must not only have been free from fraud in the transaction, but must have acted with good faith and reasonable diligence; otherwise no equity will arise in [her] favor.’ [Cits.]” (Emphasis in original.) Bachrodt Realty Corp. v. Walker, 237 Ga. 696, 697 (2) (229 SE2d 455) (1976). See also Walker v. Williams, 177 Ga. App. 830, 832 (341 SE2d 487) (1986). The administration of the estate, including the termination of appellant’s surety bond, was a matter which could only be addressed by the probate court. Appellant, by becoming the administratrix, was therefore required to look to the probate court for guidance in the performance of her legal duties and responsibilities. The record in the present case shows a singular lack of diligence on the part of appellant in the pursuit of her discharge as the administratrix and in the performance of her duties under the surety bond in question. Had appellant exercised reasonable diligence in the matter, she would have known that there was no effective unilateral termination of the bond in 1982 and that her duties and responsibilities as administratrix, including payment of the premiums, were continuing ones. “Accordingly, the trial court did not err in granting [appellee’s] motion for summary judgment.” Walker v. Williams, supra at 832.

Decided December 5, 1988 —

Rehearing dismissed January 4, 1989.

Clarence L. Martin, for appellant.

Russell L. Clark, for appellee.

Judgment affirmed.

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


text:
    77237.
    TERRELL v. PORTER.
    (377 SE2d 540)
   Benham, Judge.

Appellant Terrell filed suit against appellee Porter on July 22, 1987, seeking damages for injuries sustained in a vehicular collision on August 30, 1985. Appellee filed a timely answer in which he asserted as defenses insufficient service and lack of personal jurisdiction. In February 1988, appellee, citing supporting affidavits, moved to dismiss the complaint, which motion the trial court granted on the ground that appellee was not properly served with process. This appeal followed.

The deputy sheriff’s return of service reflects that he served appellee personally on July 22, 1987. The affidavits executed by appellee, his wife, and his father, when taken together, show that the deputy sheriff went to 2540 Redwine Road to serve appellee and was told by appellee’s father, a resident of that address, that appellee no longer lived there. The deputy told the senior Porter that he could accept the summons and complaint for appellee and give it to appellee. The senior Porter did so. Appellee and his wife averred that appellee had not resided at 2540 Redwine Road since April 4, 1987, the day they were married, and that no service on appellee had been accomplished at their home.

1. Appellant maintains that a genuine issue of fact was created by the conflict between the deputy sheriff’s return of service and appellee’s affidavits. While the return of service constituted prima facie evidence that personal service was made upon appellee, the affidavits submitted by appellee created a factual dispute to be resolved by the factfinder, the trial court. Garrett v. Godby, 189 Ga. App. 183 (1) (375 SE2d 103) (1988). Appellant was not entitled to resolution of the issue by a jury since jurisdiction is a question for the court. Montgomery v. USS Agri-Chemical Div., 155 Ga. App. 189 (1) (270 SE2d 362) (1980). The trial court concluded appellant did not serve appellee personally by leaving a copy of the summons and complaint at his dwelling house or usual place of abode (OCGA § 9-11-4 (d)), and that service was not accomplished by a statutorily-authorized person (OCGA § 9-11-4 (c)) since appellee’s father, who gave appellee the process, was not specially appointed by the court for that purpose. Appellee’s father “was without authority to serve process and his attempt to do so was without effect. [Cits.]” Townsend v. Williams, 170 Ga. App. 766 (318 SE2d 510) (1984). A copy of the summons and complaint left with a relative at a place other than appellee’s residence or usual place of abode is not sufficient service. Freeman v. Nodvin, 181 Ga. App. 663 (1) (353 SE2d 546) (1987). The fact that appellee, having received the process from his father, had actual knowledge that a complaint had been filed against him did not cure the defect in service. Adams v. Gluckman, 183 Ga. App. 666 (1) (359 SE2d 710) (1987). There being evidence to support the trial court’s findings, the appellate court will not disturb them. Brown v. WTA/ CHC, 172 Ga. App. 636, 637 (324 SE2d 205) (1984).

2. Appellant asserts she was denied the procedural protection of OCGA § 9-11-56 (c) since, she argues, appellee’s motion to dismiss was converted into a motion for summary judgment when the trial court considered the affidavits, matters outside the pleadings. However, a motion to dismiss is the proper vehicle to seek resolution of the issue of lack of service or insufficient service of process. Echevarria v. Hudgins, 173 Ga. App. 39 (1) (325 SE2d 423) (1984). “When a motion is based on facts not appearing of record, the court may hear the matter on affidavits presented by the respective parties. . . .” OCGA § 9-11-43 (b). A motion to dismiss for lack of jurisdiction of the defendant, when tried on affidavits pursuant to OCGA § 9-11-43 (b), does not become a motion for summary judgment. Behar v. Aero Med Intl., 185 Ga. App. 845 (1) (366 SE2d 223) (1988); Boyer v. King, 129 Ga. App. 690 (200 SE2d 906) (1973). Cases relied upon by appellant, Royston v. Royston, 236 Ga. 648 (225 SE2d 41) (1976), and Williams v. Columbus, Ga., 151 Ga. App. 311 (259 SE2d 705) (1979), are distinguishable on the ground that each involves a motion to dismiss for failure to state a claim. OCGA § 9-11-12 (b) specifically provides that such a motion be treated as a motion for summary judgment should matters outside the pleadings be considered by the trial court. No such treatment is statutorily mandated for a motion to dismiss based on insufficient service of process.

Decided January 4, 1989.

Christopher J. McFadden, Guy G. Michaud, for appellant.

Russell D. Waldon, Lynn D. Heath, for appellee.

Judgment affirmed.

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


text:
    77354.
    ECHOLS v. HUDSON.
    (377 SE2d 542)
   Benham, Judge.

This is an appeal from the grant of summary judgment to Hudson in Echols’ appeal to the superior court from a probate court order dispensing with administration of the estate of Hudson’s father, and Echols’ grandfather. Appellee’s petition to the probate court alleged that the decedent’s only property was a checking account and some household furnishings, and that debts of the estate had been paid from the checking account after the decedent’s death.

Appellant complains on appeal, as he did below, that appellee’s petition was defective because it did not allege, as is required by OCGA § 53-10-1 (b), that the estate had no debts and that all the heirs had agreed upon a division of the estate amicably among themselves. Appellant is correct on both counts: the petition stated that the estate did have debts but that appellee had paid them out of the assets of the estate, and it made no mention at all of an amicable division of the estate. The fact that appellant has filed a caveat to appellee’s petition is a clear sign that the heirs are not in agreement on the disposition of the estate.

Appellee argues, in essence, that appellant’s objections are all moot because there was, in reality, no estate to be administered. One basis for that position is appellee’s averment in her affidavit in support of her motion for summary judgment that she, as an “authorized signatory” of the checking account, had exhausted the account in the course of paying debts. However, the amount of the debts listed in the petition was $557.61 less than the amount alleged to be in the checking account (although appellee averred in a conclusory fashion that she and another heir had paid part of the debts because the estate did not have sufficient assets to do so), and appellant made no mention in the affidavit of the disposition of the items of household furnishings. Exhaustion of the estate, even if it were a ground for dispensing with administration (but see OCGA § 53-10-2), has not been shown.

Decided January 4, 1989.

Michael O. Horgan, for appellant.

William M. Wheeler, for appellee.

Another basis for appellee’s position that there was no estate to administer is her assertion that she became the owner of the funds in the decedent’s checking account upon his death. However, all appellee alleged was that she was an “authorized signatory” on the account. There was no showing that appellee was a party to a joint account so as to own it as a survivor (see OCGA § 7-1-813), only an allegation that she was authorized to sign checks on the account. “In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cits.]” Schwartz v. Rennie, 185 Ga. App. 638 (1) (365 SE2d 159) (1988). Applying that rule in this case forecloses appellee’s assertion that she was entitled to summary judgment on that ground.

The trial court mentioned in its order granting summary judg- - ment, and appellee makes much on appeal of the fact, that appellant ' did not file a counter-affidavit in opposition to appellee’s motion. The duty to do so, however, arises only after the movant has made a prima facie showing of entitlement to judgment. Blue Ridge Ins. Co. v. Maddox, 185 Ga. App. 153 (2) (363 SE2d 595) (1987). For all the record shows, there was an estate consisting of a checking account and unidentified household furnishings; there were debts owed by the decedent; and the heirs have not agreed amicably to a division of the assets. Since that showing does not satisfy the requirements of OCGA* §§ 53-10-1 & 2, it cannot be said that appellee was entitled to summary judgment.

Judgment reversed.

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