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

text:
    A97A1715.
    A97A1716.
    In re WOODALL. In re ROBERSON.
    (526 SE2d 69)
   Blackburn, Presiding Judge.

John Woodall and David Roberson appeal the ruling of the Probate Court of Chatham County finding them in wilful contempt. The probate court found Woodall and Roberson refused to comply with its order requiring the return of $2.4 million in attorney fees paid to them from settlement sums in the litigation arising from a medical malpractice case involving Julia Mae Shiggs, an incapacitated adult. On appeal, Woodall and Roberson argue that the probate court lacked jurisdiction to enforce a contempt order against them and, alternatively, that the imposition of contempt violated their due process rights. For the reasons set forth below, we affirm the probate court.

1. In In re Woodall, 231 Ga. App. 391 (499 SE2d 150) (1998), this Court considered Woodall’s and Roberson’s contention that the probate court lacked jurisdiction to impose a finding of contempt against them. We agreed and reversed the trial court based on Georgia’s longstanding restrictions on probate court jurisdiction. On review, our Supreme Court, citing Ohio law, held that

the probate court’s jurisdiction to approve the settlement of the malpractice claim and to protect the best interests of the incapacitated ward confers upon that court the authority to require that the attorneys pay into the registry of court such settlement funds as they disbursed to themselves, and to hold them in contempt for their refusal to do so[,]

Gnann v. Woodall, 270 Ga. 516 (511 SE2d 188) (1999), and reversed our opinion. Accordingly, our prior opinion in this case, which dealt exclusively with this issue, is hereby vacated, and we adopt the Supreme Court’s holding with regard to this issue.

We note that the Supreme Court relied only on Ohio case law, which differs in many ways from our own, in reversing our opinion. The implications of the Supreme Court’s ruling as to the application of Ohio law to enlarge the jurisdiction of Georgia probate courts must await future clarification. Left unanswered are questions regarding the propriety of joint hearings held by state and probate court judges as well as questions concerning the functions of the probate court relating to the appointment and review of guardians and their authority to act pursuant to Georgia statutes.

As to this latter consideration, in light of the unfortunate facts of this case, we urge our probate courts to employ utmost caution in the appointment of guardians. Here, Mydell was grossly and patently unqualified to act as Shiggs’ guardian, yet this fact was not discovered until the damage had already been done. Appointment of qualified guardians is a judicial function, not a clerical one, and it requires a judge to use discretion to determine if the appointee has the experience and faculties to inspect, protect, and account for the estate of his or her potential ward. As a practical matter, the probate courts should prevent situations such as this one by imposing limitations and controls on guardians at the time of their appointment rather than relying on their authority to review the conduct of the guardian at a later time. Prevention is better than cure in the protection of estates. Third parties will be reluctant to contract with guardians, notwithstanding statutory law, where the probate court has authority to rescind or modify fully performed contracts, to the detriment of all.

2. Woodall and Roberson contend, in the alternative, that, despite the probate court’s ability to hold them in contempt, the manner in which it did so denied them certain due process rights. We cannot agree.

(a) While this case has previously been before this Court and our Supreme Court, due to the complicated nature of the facts, we repeat them here in their entirety for completeness.

On August 12,1994, Julia Mae Shiggs was admitted as a patient to Memorial Medical Center, Inc., where a caesarean section was performed on her on that day by Dr. Speir N. Ramsey. Following this operation, Shiggs developed internal bleeding which required additional surgery hours later. Shiggs subsequently developed bleeding and respiratory disorders and experienced a cardiac-respiratory arrest, leaving her severely brain damaged and comatose. All of the alleged acts of medical malpractice occurred in August 1994.

On October 15, 1994, while Shiggs remained comatose at Memorial, Michael L. Mydell, her common-law husband, was appointed as guardian of the person and property of Shiggs due to her permanent incapacity. Shiggs was subsequently transferred from Memorial to a nursing institution on November 11, 1994. Her condition continued to deteriorate, and she ultimately died on December 30, 1996.

On April 14, 1995, Roberson, acting on behalf of Mydell as an individual and as guardian for Shiggs, filed an action in the State Court of Chatham County against Memorial and Dr. Ramsey alleging an individual claim on behalf of Mydell for loss of consortium and a claim on behalf of Shiggs for medical malpractice. On September 12, 1995, Mydell signed a contingency fee contract with Roberson which provided for attorney fees of 50 percent of the proceeds of any recovery, plus reimbursement for any expenses. Roberson, in turn, retained Woodall to assist him in the trial of the malpractice action, under an agreement between the lawyers, which provided for a division of the attorney fees under Roberson’s contract with Mydell. This agreement was executed by Woodall and Roberson nunc pro time to January 1, 1996.

Prior to the beginning of trial on January 16, 1996, Mydell dismissed, with prejudice, his individual claim for loss of consortium against the defendants. The case then proceeded to trial on Shiggs’ claims based on medical malpractice, and on January 22, 1996, the sixth day of trial, the parties orally agreed to settle the case, with the approval of the trial judge, for $3,325,000 in cash plus the continued provision of certain medical services to Shiggs for the remainder of her life, the details of which remained to be worked out between the parties. No reasonable present monetary value of the future medical services was established or approved at that time.

Dr. Ramsey agreed to contribute $600,000 and Memorial agreed to contribute $2,725,000 for a cash settlement of $3,325,000, plus the provision of certain future medical services to Shiggs, for which Memorial would be solely responsible. Certain trusts were to be established for the benefit of Shiggs and her children and the $600,000 payment by Dr. Ramsey was to be used to fund the trusts.

The $3,325,000 cash portion of the settlement was paid as follows: On January 25, 1996, a partial settlement check in the amount of $1,900,000 was delivered by Memorial to Roberson, was endorsed by the appropriate parties and deposited in Roberson’s trust account. An additional sum of $825,000 was wire-transferred by Memorial into Roberson’s trust account on January 26, 1996.

On January 28, 1996, prior to the approval of any written settlement agreement by Mydell or the court, Roberson calculated the attorney fees and issued checks to himself and to Woodall. Roberson issued a check to Woodall for his share of the attorney fees in the amount of $1,100,000, in accordance with the agreement between the lawyers, which Woodall deposited on January 29, 1996. Roberson also distributed $1,300,000 to himself as his own fee. Roberson used a gross settlement amount of $4,800,000 to calculate 50 percent attorney fees of $2,400,000. Roberson also retained $102,295.24 for his expenses. It is unclear how Roberson arrived at the gross figure, as there were only two components that made up that figure, the cash settlement and the present value of the future medical services to be rendered to Shiggs, which figures do not agree with the figure used by Roberson.

Roberson apparently relied on his expert’s evaluation of the present value of the future medical services which were to be provided to Shiggs of $1,425,000, plus the cash settlement of $3,325,000, to arrive at the gross settlement figure of $4,800,000 upon which he calculated the 50 percent attorney fees in the amount of $2,400,000. In its November 1, 1996 order, the state court pointed out, among other things, a discrepancy in the valuation of future services by Memorial. The court noted:

The record reflects that the value of the future services to be provided by Memorial Medical Center, Inc. may have been inaccurately calculated and used in making distribution of the proceeds pursuant to the attorney fee contract. Specifically, the distribution sheet, which was presented to the Court following the first hearing and at the request of the Court, reveals that the future services were valued at $1,425,000. The court noted that the actual documentation of medical expenses for Shiggs was $1,091,909 and may have included expenses other than those for respiratory equipment and the special mattress which were the only future medical expenses for which American was liable. On further inquiry by the Court, the counsel for the Plaintiff explained their methods for calculating the value of the future benefits and appear to have overvalued the services.

On February 16, 1996, Mydell, as guardian for Shiggs, signed a disbursement statement prepared by Roberson indicating a gross settlement in the amount of $4,800,000. The statement listed attorney fees of $2,400,000, attorney expenses of $102,295.24, a payment to Mydell, as guardian, in the amount of $151,359.33, and other expenses. The amount of the fees taken by Roberson and Woodall equaled one-half of the cash settlement and approximately one-half of the value of future services to be provided to Shiggs, as calculated by an economist hired by Roberson. The only purpose in establishing the present value of the future medical services was to calculate attorney fees. Such value was of no benefit to anyone else, as Memorial was obligated to pay the cost without regard to the amount thereof. Thus, Roberson and Mydell took 72 percent of the cash received in the settlement to pay their fees. This left a $600,000 trust fund and the medical services received by Shiggs prior to her death as the total benefits to the plaintiff and her children. Although the settlement statement listed Mydell as a payee in his capacity as guardian, the check issued to Mydell on February 16, 1996, actually was made out to him in his individual capacity. It is unclear from the record whether this payment was intended to compensate Mydell for statutory guardian fees or was in consideration of his earlier dismissal of his individual claim.

Also on February 16, 1996, Roberson and Woodall filed petitions with the probate and state courts seeking approval of the settlement. The settlement agreement submitted to the court was not executed. It was returned to Roberson and was ultimately executed on July 1, 1996. Then, on July 29,1996, Roberson filed a second petition to compromise a doubtful claim and for approval of the settlement agreement in the probate court and a second motion for approval of the settlement in the state court. A hearing was held on October 1,1996, and both the state court judge and probate judge were present. At this hearing, it became apparent that the attorneys for Shiggs and Memorial were in disagreement as to the future services the parties had intended to be provided to Shiggs, and, which necessarily raised questions with regard to the value of such services. The written agreement, however, was clear and unambiguous as the court ultimately found. The written settlement agreement provided:

As additional consideration [for the settlement], Memorial Medical Center, Inc. agrees to provide to Julia Mae Shiggs the respiratory care services currently provided and the use of the same or similar Hill-Rom mattress currently provided, for the lifetime of Julia Mae Shiggs.

On October 14, 1996, the probate court removed Mydell as guardian for Shiggs. After a subsequent hearing on November 1, 1996, the state court issued an order which approved the written agreement, including its provision for future medical services. The court could not reconcile Mydell’s disbursement figures with the settlement agreement between the parties and therefore refused to approve the distributions which had actually been made. Rather, the state court judge requested that the probate court review “the distribution of funds and the conduct of the Guardian, Michael Mydell, in regard to his fiduciary duties and responsibilities to his ward, Julia Mae Shiggs.”

On November 8, 1996, the judge refused to approve Mydell’s petition to compromise claim filed in the probate court, finding that the disbursements of the settlement proceeds which were made were improper. The probate court ordered that “the attorneys who have come into possession of the assets of Julia Mae Shiggs, i.e. David Roberson and John T. Woodall, pay all money received by them on behalf of Julia Mae Shiggs . . . into the registry of the State Court of Chatham County, Georgia.”

After issuing a show cause order requiring Roberson and Woodall to explain why they had not reimbursed Shiggs’ estate, the probate court found Roberson and Woodall in contempt of its November 8, 1996 order and provided that the attorneys could purge themselves of contempt by depositing surety in the amount of $2,400,000, the amount of attorney fees disbursed without approval of the court. The probate court further ordered that if Roberson and Woodall failed to deposit the funds as directed they would be incarcerated. This appeal then ensued.

(b) Both Woodall and Roberson contend that their due process rights were denied with regard to the November 8 order of the probate court which required them to pay their fees into the registry of the state court. In their answers to this order, filed in early December 1996, Woodall and Roberson contended, without any specificity, that the order violated their due process rights and, as such, should be vacated. Neither Woodall nor Roberson requested a hearing on this issue, however, and neither one moved the court to make a ruling at any time. In fact, the issue was not even argued at the contempt hearing held on January 21, 1997.

As with most constitutional rights, due process rights may be waived by failing to appropriately pursue them at the trial level.

It is well settled that, even if a defendant has a due process right to a hearing, that right [might] be waived by failure to request a hearing. The trial court has no duty to initiate [a] hearing until requested by one of the parties. The party seeking a hearing must take affirmative steps to request one.

(Citations and punctuation omitted.) Isaac v. State, 237 Ga. App. 723, 728 (3) (516 SE2d 575) (1999).

In this case, Woodall’s and Roberson’s only attempt to pursue their due process rights was to vaguely raise them in their answers to the probate court’s November 8 order. Having failed to take further action by requesting a hearing on this matter or compelling the trial court to make a ruling on it, Woodall and Roberson have waived their right to receive a ruling on such matters on appeal. Id.

(c) Moreover, Woodall and Roberson also waived their due process claims that they were not given appropriate notice that the hearing on January 21,1997, was a contempt hearing. After claiming that they were ready to proceed with the hearing, neither Roberson nor Woodall raised any objection during the course of the hearing as to its nature. Moreover, both acquiesced to the hearing’s nature as it unfolded, moving for a directed verdict on the grounds that wilful contempt had not been shown. Having failed to state any objection and having acquiesced in the nature of the proceedings, Roberson and Woodall cannot now complain that their due process rights were violated because they were not given appropriate advance notice that the hearing regarded their contempt. See, e.g., Gwinnett County v. Vaccaro, 259 Ga. 61, 62 (376 SE2d 680) (1989) (trial court can enter order of permanent relief at hearing for interlocutory injunction if parties acquiesce).

(d) Woodall and Roberson also contend that they were denied their right to a trial by jury with regard to both the November 8 order and the subsequent finding of contempt. However, Woodall and Roberson have waived their rights in this regard as well.

OCGA § 15-9-121 (a) provides:

A party to a civil case in the probate court shall have the right to a jury trial if such right is asserted by a written demand for jury trial within 30 days after the filing of the first pleading of. the party or within 15 days after the filing of the first pleading of an opposing party, whichever is later. . . . If a party fails to assert the right to a jury trial, the right shall be deemed waived and may not thereafter be asserted.

Furthermore, as a more general matter, “[i]n civil suits, the right to trial by jury may be implicitly waived by a party’s conduct. One may waive the right to trial by jury by conduct indicative of the fact that the right is not asserted.” (Punctuation omitted.) SurgiJet v. Hicks, 236 Ga. App. 80, 81 (2) (511 SE2d 194) (1999). The record contains no evidence that either Woodall or Roberson ever asserted any right to a jury trial below with regard to the November 8 order or the contempt hearing. To the contrary, as discussed above, they acquiesced in the proceedings as they were conducted. Accordingly, Woodall and Roberson have waived their right to argue that they should have received a jury trial.

(e) Woodall further contends that he could not be held in contempt because the record shows that he complied with the November 8 order of the probate court. Specifically, Woodall argues that, because his contract was with Roberson, the funds he received must be considered a payment by and through Roberson, not Shiggs’ estate. Therefore, Woodall argues that he has never held any of the funds of Shiggs’ estate, which the November 8 order required to be paid into the registry of the state court. This argument is untenable.

Decided November 19, 1999

Arnall, Golden & Gregory, Ann S. Infinger, Scott F. Bertschi, Caroline E. Taylor, Ladson & Suthers, John E. Suthers, for appellant (case no. A97A1715).

The record clearly shows that Woodall received $1.1 million as compensation for his representation of Mydell, and the funds became available as a result of the settlement of the action. The probate court ordered Woodall to return the monies he had received pursuant to the representation. Woodall failed to do so, and the probate court properly held him in contempt for violating its November 8 order.

(f) In turn, Roberson, without citation to any authority, argues on appeal that he cannot be held liable for wilfully refusing to pay his fees into the court’s registry because he previously had spent all of the money. Roberson, however, admitted that he had the ability to raise some money, and he provided no evidence that he was broke and could not pay. As such, the evidence was sufficient to support the trial court’s finding that Roberson acted in wilful contempt of its November 8 order. Schiselman v. Trust Co. Bank, 246 Ga. 274, 276 (1) (271 SE2d 183) (1980).

Judgment affirmed.

Johnson, C. J., and Pope, P. J., concur specially.

Johnson, Chief Judge,

concurring specially.

I fully concur with both the analysis and the disposition of these two cases as to the substantive issues. I cannot agree, however, with the language of the majority suggesting that the Supreme Court’s reliance, in part, on Ohio authority in support of its conclusion that the probate court had jurisdiction over the matters which are the subject of these appeals either expands the jurisdiction of Georgia’s probate courts or causes confusion in the law of Georgia which “must await future clarification.” Nor do I find it appropriate for this court, on remand, to criticize by implication the Supreme Court’s use of Ohio authority to shed light on the inherent authority of probate courts in Georgia to act in furtherance of their broad statutory obligations to wards in guardianship matters. Legal reasoning is, most often, reasoning by analogy, and the citation of foreign authorities to assist in the orderly development and interpretation of the law is a time-honored tradition of the common law, one which this court itself has employed on many occasions.

I am authorized to state that Presiding Judge Pope joins in this concurrence.

Betty Walker-Lanier, for appellant (case no. A97A1716).

Karsman, Brooks & Callaway, Dana F Braun, Gannam & Gnann J. Hamrick Gnann, Jr., Bordeaux & Abbot, Louisa Abbot, Frederick S. Bergen, for appellee.


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A99A0990.
    BOWEN et al. v. HUNTER, MACLEAN, EXLEY & DUNN et al.
    (525 SE2d 744)
   Barnes, Judge.

Mrs. Robert Sieg, Sr. and Deborah Sieg Bowen sued attorney John Tatum and the law firm of Hunter, Maclean, Exley & Dunn, alleging that Tatum committed professional malpractice, breach of fiduciary duty, negligence, conspiracy, fraud, and conversion. The plaintiffs, mother and sister of the late Robert Sieg, Jr., based their claims on assertions that Tatum should have given them a copy of Sieg’s prenuptial agreement, which allegedly barred his widow from inheriting and would have informed them they were entitled to Sieg’s entire estate.

The trial court granted summary judgment to the defendants on plaintiffs’ legal malpractice and breach of fiduciary duty claims, because the plaintiffs were never the defendants’ clients. The trial court also found that under Georgia law the defendants owed no fiduciary duty to the plaintiffs. The trial court then bifurcated the trial of the remaining issues.

In the first phase of the trial, the jury considered whether the prenuptial agreement was valid. If it found the agreement valid, then in the second phase of the trial the jury would consider whether Tatum and the law firm were liable for failing to disclose its contents. Because the jury concluded that the prenuptial agreement purporting to bar the widow from inheriting anything was invalid, the trial court entered judgment for the defendants.

Plaintiffs appeal, alleging the trial court erred in granting summary judgment to Tatum and the law firm on the plaintiffs’ fiduciary claims, in bifurcating the trial, in making certain evidentiary rulings, in denying plaintiffs’ motion for directed verdict on the widow’s failure to rescind the prenuptial agreement, and in declining to give certain jury charges. For the reasons that follow, we affirm.

In February 1990, Robert Sieg, Jr. fell down a set of stairs in his house and died. He had no children and no will. His widow, Lynne Sieg, hired attorney Tatum to help her administer the estate. The probate court appointed her the estate administrator, and she was discharged from those duties in December 1990.

Although Sieg’s mother and sister were aware of the existence of a prenuptial agreement before the administration was closed, they waited until May 1991, five months after the discharge, to ask Tatum if Sieg had entered into a prenuptial contract with Lynne Sieg. Tatum responded by letter that he was aware of such a contract (he did not draft it), but could not deliver a copy to them without his client’s permission, which Lynne Sieg declined to give. In August 1994, three years after receiving Tatum’s letter, the decedent’s mother and sister sued Lynne Sieg, asserting she had waived her rights as an heir at law in a prenuptial agreement. The widow responded in defense that the mother and sister had no standing to enforce the prenuptial agreement.

The Supreme Court of Georgia disagreed in Sieg v. Sieg, 265 Ga. 384 (2) (455 SE2d 830) (1995), holding that the prenuptial agreement “constituted an actual legal settlement under which the rights of the parties vested.” (Punctuation omitted.) Id. at 386. Thus, the mother and sister of the decedent had standing to maintain an action against the widow based on the prenuptial agreement. The Supreme Court noted it was not considering the agreement’s validity, only the standing issue. Id. at in. 2. After the case was remitted to the trial court, the parties settled in April 1996, on the eve of trial, agreeing the widow would keep half the estate and give half to the mother and sister.

Nine months after the settlement, in January 1997, the mother and sister sued Tatum and his former law firm, alleging that Tatum should have given them a copy of the prenuptial agreement, or at least told them that they had a potential interest in the estate under that agreement. After numerous motions and orders, including the summary judgment granted to Tatum and his former firm on plaintiffs’ claims for malpractice and breach of fiduciary duty, the court bifurcated the trial. The court apparently concluded that the jury had to find the prenuptial agreement valid before the decedent’s mother and sister could make any claims against the widow’s former lawyer. When the jury concluded the prenuptial agreement was not valid, the trial court entered judgment for the defendants.

1. The decedent’s mother and sister contend on appeal that the trial court erred in bifurcating the trial and granting summary judgment to attorney Tatum and his former law firm on the breach of fiduciary duty claims. We disagree.

“Courts are authorized to bifurcate issues to further convenience or avoid prejudice. OCGA § 9-11-42 (b). The decision to bifurcate is reviewed for clear and manifest abuse of discretion.” Whitley v. Gwin- nett County, 221 Ga. App. 18, 19 (2) (470 SE2d 724) (1996); Cantrell v. Northeast Ga. Med. Center, 235 Ga. App. 365, 368 (1) (b) (508 SE2d 716) (1998).

Tatum and his former firm moved to bifurcate the trial to determine first whether the mother and sister of the decedent were legal heirs who would have prevailed in their underlying suit against the widow but for the allegedly tortious conduct of the widow’s former attorney, Tatum. The mother and sister responded that they had a tort claim against Tatum for his failure to disclose the agreement, from which damages flowed “in the form of fees and expenses to force disclosure.” The trial court found that, “in order to avoid undue prejudice, the issue of the enforceability and validity of the prenuptial agreement should be tried prior to and separately from Plaintiffs’ claims of fraud, conspiracy, conversion, etc.” The trial court had previously granted the defendants’ motion for summary judgment on plaintiffs’ claims of professional malpractice and breach of fiduciary duty, finding that “no attorney/client relationship existed between Plaintiffs and Defendants” and further finding that

[t]he issue of whether the Plaintiffs were beneficiaries of the estate is a question of fact which hinges on whether or not the prenuptial agreement was valid and enforceable. Genuine issues of material fact remain for jury determination concerning these issues. Regardless of these questions of fact however, the Plaintiffs have conceded in their briefs that “Georgia has not yet specifically addressed whether . . . the attorney [of a fiduciary] otherwise owes a fiduciary duty to the beneficiary.”

The court then granted defendants summary judgment on the plaintiffs’ claims for breach of fiduciary duty.

Appellants cite no case law or statutes supporting their assertion that they had a tort claim against Tatum for his failure to disclose the “voidable” agreement. Whether the agreement was voidable or void, we decline to create such a tort claim here and hold that the trial court did not abuse its discretion in bifurcating the trial.

2. Sieg’s mother and sister assert that the trial court erred in granting summary judgment to Tatum and his former law firm on their fiduciary duty claim. According to the trial court and the parties, Georgia has not addressed the issue of whether the attorney of a fiduciary — such as the administrator of an estate — owes a fiduciary duty in turn to heirs at law. In its order granting summary judgment to Tatum and his former firm on this issue, the trial court concluded that “[t]he issue of whether the Plaintiffs were beneficiaries of the estate is a question of fact which hinges on whether or not the prenuptial agreement was valid and enforceable.”

However, Sieg’s mother and sister argue that Tatum had a fiduciary duty to them as potential or possible heirs, regardless of whether they were actual heirs. They argue without citation that “justifiable reliance eliminates the duty to exert due diligence,” but again cite no authority supporting that proposition. Further, while they cite cases holding that a fiduciary cannot divert trust property to his own use and that a person helping a fiduciary divert trust property is equally liable (Hickson v. Bryan, 75 Ga. 392, 395 (2) (1885); Ausley v. Cummings, 145 Ga. 750 (89 SE 1071) (1916)), none of these cases is applicable to this situation, in which no evidence has shown that the widow Sieg, as the administrator of Sieg’s estate, diverted property to herself. In fact, the case law addressing a fiduciary’s responsibilities deals with situations in which the aggrieved party was an actual party to a fiduciary relationship, not a potential or possible party to the relationship.

A fiduciary or confidential relationship arises “where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.” OCGA § 23-2-58.

Kienel v. Lanier, 190 Ga. App. 201, 203 (378 SE2d 359) (1989); see Physician Specialists v. Wildmon, 238 Ga. App. 730, 732 (1) (521 SE2d 358) (1999). The party asserting the existence of a fiduciary or confidential relationship bears the burden of establishing its existence. Crawford v. Crawford, 134 Ga. 114, 119 (67 SE 673) (1909). Here, Sieg’s mother and sister could not argue that a fiduciary duty arose out of any attorney-client relationship and did not in fact appeal the trial court’s summary judgment to Tatum on their legal malpractice claim. See Guillebeau v. Jenkins, 182 Ga. App. 225, 231 (1) (355 SE2d 453) (1987) (an attorney-client relationship cannot be created in the mind of a would-be client).

When a fiduciary or confidential relationship is not created by law or contract, we must examine the facts of a particular case to determine if such a relationship exists. Cochran v. Murrah, 235 Ga. 304, 306 (219 SE2d 421) (1975). Here, Tatum disclosed the existence of the prenuptial agreement to Sieg’s mother and sister at least five years before they filed suit against him and his former firm. Between that disclosure and this suit, Sieg’s mother and sister sued his widow and settled with her for half of the estate, which amounted to approximately $1 million. Any allegation that the widow had breached her fiduciary duty as the estate administrator, or that Tatum assisted her in breaching that duty, could have been raised in this earlier action.

Sieg’s mother and sister argue that they trusted Tatum when he told them they had no interest in the prenuptial agreement, and thus he owed them a fiduciary duty. However, we have, held that an allegation that a defendant had been a close personal, confidential, and business adviser to the plaintiff did not establish the existence of a confidential relationship within the meaning of OCGA § 23-2-58. Charles v. Simmons, 215 Ga. 794, 796 (113 SE2d 604) (1960); see Parello v. Maio, 268 Ga. 852, 853 (1) (494 SE2d 331) (1998). That Code section provides that a confidential relationship arises when “one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith.” OCGA § 23-2-58. We conclude that Tatum was not “so situated as to exercise a controlling influence over” Sieg’s mother and sister based on the particular facts of this case. The trial court did not err in granting summary judgment to Tatum and his former law firm on the breach of fiduciary duty claims.

3. The appellants argue that the trial court erred in numerous evidentiary rulings, sustaining objections to appellants’ cross-examination of Tatum regarding his understanding of the intestacy statute, the date he first gave appellants a copy of the prenuptial agreement, when he disclosed other defenses, and when he thought the statute of limitation began running on appellants’ claim. Appellant Bowen was not allowed to testify on direct about whether Tatum told her anything about the statute of limitation. Additionally, the trial court ruled that appellants could not argue in closing that Tatum prevented the appellants from seeing the agreement, finding that those issues would more properly be considered in the trial’s second phase, if there were one. Appellants argue that this evidence was relevant to both phases of the trial and thus should not have been excluded in the first phase.

We review a trial court’s evidentiary rulings for abuse of discretion. Nalley Motor Trucks v. Cochran, 200 Ga. App. 487, 488 (408 SE2d 501) (1991). Here, the trial court’s rulings were consistent and logical. While appellants assert in their brief that Tatum’s motion in limine to keep out a portion of Lynne Sieg’s answer in a previous case “was expanded to include any reference to their alleged tortious conduct and was denied . . . [and] [t]he Trial Court thereby recognized the admissibility of the evidence,” the record does not support this contention. The trial court initially denied Tatum’s motion in limine to keep out a portion of Lynne Sieg’s answer to the appellants’ previous suit against her, but noted that it would rule on specific objections as they arose. It proceeded to do so during the course of the trial. The excluded evidence listed above did not address the prenuptial agreement’s validity, and we conclude the trial court did not abuse its discretion in sustaining the objections.

4. Appellants argue that the trial court erred in overruling their objections to the testimony of Lynne Sieg’s sister that Bowen, the decedent’s sister, admitted after her brother’s funeral that she was spoiled and used to getting everything she ever wanted. Appellants also claim as error the admission of a neighbor’s testimony that Bowen had asked questions at her brother’s wake implying that Lynne Sieg had pushed her husband down the stairs. Tatum responds that the neighbor’s testimony contradicted Bowen’s testimony in which she denied implying that Lynne Sieg had harmed her husband. Further, Tatum asserts, testimony that Bowen wanted to inherit all of her brother’s estate was relevant to establish her interest and bias and to cast doubt on her testimony that her brother’s relationship with Lynne Sieg before they signed the prenuptial agreement did not appear to be a common-law marriage.

Again, we review evidentiary rulings for abuse of discretion. Nalley Motor Trucks v. Cochran, supra, 200 Ga. App. at 488. Deborah Bowen’s credibility was clearly an issue in the first phase of the bifurcated trial, because if her testimony were believed, the jury would have been authorized to conclude that her brother did not have a common-law marriage with Lynne Sieg that would invalidate the prenuptial agreement. “The interest of a witness in the result or outcome of the case, especially where the witness is a party to the cause, may always be considered by the jury in passing upon his or her credibility.” Smith v. Davis, 203 Ga. 175, 182 (3) (45 SE2d 609) (1947). Bowen’s interest as a party in the case is a factor affecting the credibility of her testimony. Lewis v. American Road Ins. Co., 119 Ga. App. 507, 511 (2) (167 SE2d 729) (1969). We conclude that the trial court did not abuse its discretion in overruling the objections.

5. Appellants argue the trial court erred in denying their motion for a directed verdict, brought on the ground that Lynne Sieg failed to rescind the prenuptial agreement once she became aware that it was invalid. Tatum responds that, in order to rescind a contract, the rescinding party must discharge any benefit gained under that contract. The only arguable benefit Lynne Sieg gained under the prenuptial agreement was her ceremonial marriage to the decedent, and she could not “rescind” her marriage once her husband died. Further, he argues, if she already had a common-law marriage, then the prenuptial agreement was invalid and there was nothing to rescind, a point appellants agreed with at trial.

“If a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it. Otherwise he cannot avoid or rescind such contract.” Brooks v. Hooks, 221 Ga. 229, 235 (1) (144 SE2d 96) (1965); see also Tingle v. Harvill, 228 Ga. 332, 336 (2) (b) (185 SE2d 539) (1971). These cases, however, are factually distinguishable from the case at bar. As Tatum points out, Lynne Sieg could not have discharged any benefit she might have received under the prenuptial agreement, which would have been her marriage at most. The trial court did not err in denying appellants’ motion for a directed verdict on this ground.

6. The trial court further did not err in declining to give two of appellants’ requests to charge as written. Appellants asked the court to give two charges relating to common-law marriages. “In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge.” (Citations and punctuation omitted.) Lee v. Bartusek, 205 Ga. App. 551 (1) (422 SE2d 570) (1992).

A portion of the first charge not given states that “[djlefendants attempt to attack the validity of a ceremonial marriage between Bobby Sieg and Lynne Warren which took place on December 31, 1997, by asserting the pre-existence of a common law marriage.” The charge further explains that if the parties begin living together while one of them is married to someone else, the parties must make a new agreement after the married party is divorced in order to establish a common-law marriage. This charge is not adjusted to the evidence.

While appellants argue in their brief that the evidence “showed the [Siegs’] cohabitation arose from an adulterous relationship,” the cite is to the testimony of Sieg’s first wife that, while married to her, Sieg had an affair with Lynne. This testimony does not show that the Siegs cohabited during his first marriage; Sieg’s first wife testified that she remained married to him for four years after she discovered his relationship with Lynne.

Appellants argue further the trial court should have charged the jury that “[t]he parties to an alleged common law marriage cannot hold themselves out to be married where circumstances would benefit them, and then maintain a non-marital status when to do so would be of benefit,” citing Baynes v. Baynes, 219 Ga. App. 848 (467 SE2d 195) (1996). This charge is also not adjusted to the evidence, none of which showed that the Siegs held themselves out to be married only when it was of benefit to them.

Finally, the trial court charged the jury that the defendants had the burden of proving the existence of the common-law marriage; that the jurors had to decide whether the Siegs held themselves out to the world as being married; that common-law marriages required a capacity to contract, an actual agreement, and consummation; and that the fact that a ceremonial marriage occurs does not necessarily mean that a common-law marriage did not already exist. These charges sufficiently covered the principles of common-law marriage, and we find no error in the trial court’s refusal to give appellants’ requests to charge.

Decided November 18, 1999

Reconsideration denied December 2, 1999

Ronald C. Berry, for appellants.

Oliver, Maner & Gray, Patrick T. O’Connor, Timothy D. Roberts, for appellees.

Judgment affirmed.

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

       The index to the pleadings is 25 pages, and the record on appeal contains more than 7,000 pages of pleadings and depositions.


author: Smith, Judge.

text:
    A99A1254.
    BACON v. MAYOR & ALDERMEN OF THE CITY OF SAVANNAH.
    (525 SE2d 115)
   Smith, Judge.

Vernada Boyd, a six-year-old child, was injured when she ran into the street and into the side of a passing car. Her mother, Anne G. Bacon, brought this action on her behalf against the City of Savannah, alleging that the city was negligent and maintained a nuisance by failing to remove a number of large trees growing alongside the street. According to Bacon, one of these trees obscured the driver’s vision, prevented him from seeing the child as she ran into the street, and prevented the child from seeing the car. The trial court granted summary judgment in a carefully reasoned and thorough order, holding that, while some questions of fact existed, summary judgment was proper absent a showing that the presence of the tree was the proximate cause of the accident. Because the undisputed facts demonstrate that the tree had no causal relationship to the accident, we affirm.

On September 28, 1987, Vernada Boyd was six years and eleven months old. She had come home from school and was sitting on the front porch of a relative’s house on the west side of a residential street. Vernada saw her father driving a truck on the opposite or northbound side of the roadway and started running toward the street to show him a school paper. When she reached the street, she ran into the side of a passing car in the southbound lane. She was looking at her father and did not look at anything else or stop running from the time she left the porch until the collision occurred. After the collision, the child’s relative found her lying on the pavement, within the painted white line marking the edge of the pavement.

Vernada had been instructed not to play in the street and to cross the street only after looking both ways. According to her relative, she crossed the street almost every afternoon or evening, and on previous occasions she had stopped and looked both ways before crossing. The only eyewitnesses in the record, the.relative and the driver of the car, agreed that there was enough space between the tree and the roadway for a pedestrian to stand and look for traffic. No evidence supports Bacon’s contention that “a reasonable jury could conclude Vernada . . . had stopped and peered out around the tree to look both ways when the side of her head was struck by the right side mirror.” It is undisputed that the tree did not encroach on the roadway, that Vernada was found on the pavement after the collision, and that she did not stop or look for traffic. And no evidence was presented that the driver ever swerved from the traffic lane.

Bacon points out that the city had attached reflectors to the tree to “provide greater visibility to motorists.” She also points to evidence that the tree in question had been inspected by the city about one month before the accident and slated for “safety removal,” although the director of Savannah’s Park and Tree Department testified that the designation had no connection to traffic safety but rather indicated the tree had significant defects in its trunk and lacked the structural integrity to withstand a storm. He also testified that over 4,000 trees had been designated for removal but that the department had the capacity to remove only about 800 trees per year. Bacon also submitted the affidavit of a transportation consultant that the road should have had a “clear zone” of seven to fourteen feet from the edge of the roadway without any trees larger than six inches in diameter. This evidence, Bacon contends, creates a genuine issue of fact as to whether the city was on notice that the tree was encroaching on the street and constituted a danger to motorists and pedestrians.

Assuming without deciding that genuine issues of fact exist with regard to negligence or the maintenance of a nuisance by the city, we agree with the trial court that those issues are not reached in this case due to the absence of proximate cause. “The requirement of proximate cause constitutes a limit on legal liability; it is a policy decision that, for a variety of reasons, e.g., intervening act, the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery.” (Citation and punctuation omitted.) Atlanta Obstetrics &c. Group v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990). See also Stegall v. Central Ga. Elec. Membership Corp., 221 Ga. App. 187, 190 (2) (470 SE2d 782) (1996). For this reason, “[b]efore any negligence, even if proven, can be actionable, that negligence must be the proximate cause of the injuries sued upon.” (Citations and punctuation omitted.) Bulloch County Hosp. Auth. v. Parker, 196 Ga. App. 438, 439 (396 SE2d 37) (1990). To establish proximate cause, a plaintiff must show a “legally attributable causal connection between the defendant’s conduct and the alleged injury.” (Citations and punctuation omitted.) Whitt v. Walker County, 176 Ga. App. 643, 645 (337 SE2d 425) (1985). Conversely, “no matter how negligent a party may be, if his act stands in no causal relation to the injury it is not actionable.” (Citation and punctuation omitted.) Id. at 646.

In City Council of Augusta v. Booker, 229 Ga. App. 566 (494 SE2d 374) (1997) (physical precedent only), this court reversed a denial of summary judgment on facts and allegations remarkably similar to those presented here. In Booker, a five-year-old child rode his bicycle out of a side street, ignoring a stop sign, and was struck by a motorist on the main thoroughfare. The child’s mother brought an action against the City of Augusta, claiming that the child’s view of the stop sign was obscured by a power pole and that the driver’s view was obscured by vegetation on an overgrown lot. She contended that both conditions constituted the maintenance of a nuisance by the city and caused the accident. Id. at 567.

In concluding that the child’s conduct, rather than the maintenance of any nuisance, was the proximate cause of the accident, this court noted testimony that the child knew the intersection was controlled by a two-way stop sign and understood that he was supposed to stop and look both ways. When the accident occurred, however, he chose to ignore the sign in his hurry to get home before his mother found him playing where he was not allowed to play. Id. at 566. The child’s awareness of the stop sign and his decision to ignore it were sufficient to demonstrate that neither the power pole nor the overgrown lot was the proximate cause of the accident. Id. at 567. We further noted that our decision was not based on any determination of contributory negligence on the part of the child. Id.

We find the reasoning employed in Booker to be persuasive here. It is undisputed that the child here had been instructed in the proper method of crossing the street, that she crossed the road on a daily basis, and that on those previous occasions she had stopped and looked both ways before crossing. On the day in question, Vemada overlooked her duty to yield to vehicular traffic, see OCGA § 40-6-92 (a), in her hurry to reach her father. Her act of running into the street without stopping or looking, not the presence of trees along the roadway, was the proximate cause of the accident. This is particularly true because the undisputed evidence shows that Vernada ran into the side of the car rather than being struck by it, as in Booker. Because it is apparent that the city was not responsible for the child’s injury, the trial court correctly granted summary judgment in favor of the City of Savannah.

Decided November 9, 1999

Reconsideration denied December 2, 1999

George L. Lewis, Howard E. Spiva, Cecil C. Davis, for appellant.

Oliver, Maner & Gray, Patrick T. O’Connor, Wiseman, Blackburn & Futrell, James B. Blackburn, for appellee.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

        Booker was cited with approval, but on other grounds, in Parks v. Multimedia Technologies, 239 Ga. App. 282, 290 (3) (c) (520 SE2d 517) (1999).


author: Ruffin, Judge.

text:
    A99A1585.
    KILBURN v. PATRICK.
    (525 SE2d 108)
   Ruffin, Judge.

Steven Patrick sued Galen Kilburn, Jr., Kilburn Young Asset Management Corporation (KYAMC), Robert Young, and Donald Burton for conversion and breach of fiduciary duty stemming from the defendants’ alleged conversion of shares of KYAMC stock that had been given to Patrick. After the trial court directed a verdict against Kilburn on the conversion claim, the jury found that defendants had breached their fiduciary duty and awarded punitive damages and attorney fees against Kilburn. Kilburn appeals, contending that the trial court erred in (1) directing a verdict on conversion; (2) permitting an award of punitive damages and attorney fees; (3) admitting prejudicial evidence; and (4) failing to give a requested jury charge. For reasons that follow, we reverse.

In August 1989, Kilburn hired Patrick to work for Galen Kilburn & Company (GKC), a real estate development company. Kilburn subsequently formed KYAMC with Robert Young. Corporate documents designated Kilburn as chairman, Young as president/chief executive officer, Patrick as vice-president, and Sandra Hutchenson, another employee of GKC, as secretary/treasurer.

KYAMC issued 10,040 shares of stock. Initially, the shares were divided between Kilburn and Young, but Kilburn later gave Patrick 437 shares. Patrick signed a shareholder agreement, drafted by Kil-burn’s attorney, that provided,

3. OTHER INTER VIVOS TRANSFERS (a) Right of First Refusal and Redemption by Corporation. (1) In the event that any Shareholder . . . withdraws, resigns, or is terminated with or without cause by the Board of Directors from his employment by the Corporation, then the other Majority Shareholder (if the event relates to a Majority Shareholder), or Kilbum (if the Event relates to a Minority Shareholder) ... is hereby granted the option and right... to purchase from such Transferring Shareholder . . . all, but not less than all, of the Stock owned by such Transferring Shareholder prior to such Event. To the extent any such option is not exercised, the Corporation shall have the option to purchase such Transferring Shareholder’s shares on the terms set forth herein.

(Emphasis supplied.)

On August 15, 1995, Patrick resigned. According to Patrick, he resigned only from GKC, but remained a shareholder, officer and director of KYAMC. Kilbum, on the other hand, said that Patrick resigned from both GKC and KYAMC, and he reminded Patrick that, by resigning, he would be walking away from a significant amount of money in KYAMC.

In a letter dated August 16, 1995, Kilbum wrote Patrick that he was exercising his option to purchase Patrick’s shares in KYAMC in accordance with the shareholder agreement. Kilburn then forwarded a check in the amount of $14,594.56 — the book value of the stock — which Patrick refused. Subsequently, KYAMC made distributions to its shareholders, but did not pay Patrick.

Patrick brought suit against Kilburn for converting his shares in KYAMC and against Kilburn, KYAMC, and the other officers for breaching their fiduciary duty. At trial, Patrick and Kilburn disputed whether the shareholder agreement gave Kilbum the right to purchase Patrick’s stock. Patrick argued that the agreement did not give Kilbum any such right because the stock purchase provision applied only to “employees” of KYAMC, and he was not an employee. The trial court agreed and directed a verdict against Kilburn on the conversion claim and awarded $108,396.25 in compensatory damages.

With regard to the remaining claims, the jury found that all defendants breached a fiduciary duty, but that Kilburn, alone, acted in bad faith. Although the jury awarded no compensatory damages on the breach of fiduciary duty claim, it ordered Kilburn to pay punitive damages and attorney fees to Patrick.

1. Kilburn asserts that the trial court erred in directing a verdict on conversion. We agree. A directed verdict is proper only where there is no conflict in the evidence on any material issue, and the evidence, with all reasonable deductions construed in favor of the non-movant, demands a particular verdict. Here, the evidence did not demand a finding that Kilburn converted shares of stock owned by Patrick.

“[CJonversion involves an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights.” The very essence of conversion is that the act of dominion is wrongfully asserted. Thus, if a party has a right to assert ownership, the act of dominion is not wrongful and does not constitute conversion. Accordingly, if the shareholder agreement gave Kilburn the right to purchase Patrick’s shares at book value, then he could not have converted the stock.

Under the express language of the shareholder agreement, Kil-burn had the unilateral right to purchase Patrick’s shares of stock if Patrick withdrew, resigned or was terminated “from his employment by the Corporation.” The trial court found that the term “employment” was unambiguous because employment is commonly understood as a master-servant relationship. In directing a verdict against Kilburn, the trial court concluded that “there is simply no evidence from which a jury could determine that Mr. Patrick was an employee of [KYAMC].” We disagree.

Under Georgia law, the term “employment” is capable of a broader meaning than that given by the trial court. Significantly, according to the Georgia Business Corporation Code, an “[ejmployee includes an officer” of the corporation. In the workers’ compensation context, an employer-employee relationship may be inferred where one receives valuable services from another and retains the right to discharge the one performing the services. Although payment of compensation is relevant to the issue of employment, it is not disposi-tive.

The trial court erred in concluding that there was no evidence that Patrick was in the employment of KYAMC. Patrick was the vice president of KYAMC. As such, he acknowledged that he could be fired from the company. Although Patrick did not receive a salary for his work at KYAMC, he did perform services for the company. Patrick helped locate office space for KYAMC, participated in company meetings, and signed and processed checks for the company. At one point, he served as the comptroller of the company. In a KYAMC business proposal, Patrick was listed as “key personnel.” And, on direct examination, Patrick asserted that he was “integral in the success of [KYAMC].” Under these circumstances, there is at least some ambiguity as to whether Patrick was in the employ of KYAMC.

As there is an ambiguity, we turn to the rules .of contract construction to determine whether the ambiguity may be resolved. “If after applying the rules, the ambiguity still remains, then the trier of fact must resolve the ambiguity.

Here, the rules of construction resolve the ambiguity. We note the rule that, “[t]he construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.” Thus, in interpreting the agreement, we must strive to give it a reasonable and effective meaning that does not render some sections meaningless.

Under the express terms of the shareholder agreement, the only majority shareholders were Kilburn and Young, and the only minority shareholders were Patrick and Hutchenson. Using the traditional master-servant definition of employment, neither minority shareholder was an “employee” of the company. So this definition of the word “employment” renders the clause granting Kilburn the right to purchase the shares from a minority shareholder meaningless. On the other hand, both minority shareholders were officers of KYAMC. By using the definition of the term “employment” found in the corporate code, we give the contract a reasonable interpretation that upholds the contract in its entirety. The rules of construction require that we use the latter definition. Accordingly, the term “employment” is unambiguous, and Patrick was in the employment of KYAMC. Therefore, the trial court erred in directing a verdict against Kilburn on conversion.

2. Kilburn contends that the erroneous entry of the directed verdict was pivotal to the award of punitive damages and attorney fees. Thus, he argues that the reversal of the conversion claim mandates the reversal of the award of punitive damages and attorney fees. We agree. As the jury awarded no actual damages on the breach of fiduciary duty claim, the only damages awarded stemmed from the conversion claim. As we reversed the directed verdict on conversion, the award of punitive damages and attorney fees cannot stand.

Decided November 9, 1999

Reconsideration denied December 2, 1999

Womble, Carlyle, Sandridge & Rice, Everett W. Gee III, for appellant.

3. Kilburn contends that the trial court erred in admitting evidence of a similar act. Over objection, the trial court allowed Patrick to testify that Kilburn terminated another employee, Hutchenson, who was the other minority shareholder in KYAMC, and that Kil-burn wrongfully purchased all of her stock. According to Kilburn, this testimony was prejudicial and should have been excluded. We disagree.

Although evidence of similar acts is generally inadmissible, such evidence may be admitted where “the nature of the action renders necessary or proper the investigation of. . . conduct.” With regard to allegations of bad faith, it is frequently difficult to establish the defendant’s state of mind. The defendant’s state of mind may be illustrated by other acts of a similar nature that indicate a general practice or course of conduct or display intent, motive, knowledge, or bad faith. Here, Patrick alleged that Kilburn acted in bad faith in breaching a fiduciary duty. Accordingly, Kilburn’s treatment of the only other minority shareholder arguably demonstrated a course of conduct. Under these circumstances, we cannot say that the trial court abused its discretion in admitting the evidence.

4. In view of our holding in Division 1, we need not address Kil-burn’s remaining enumeration of error.

Judgment reversed.

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

Meadows, Ichter & Trigg, Cary Ichter, Steven M. Kushner, Michael J. Bowers, for appellee.

       Kllbum also gave Hutchenson 219 shares.

       The agreement provided that the purchase price of the stock would be book value, unless the majority shareholders agreed upon a different amount.

       Patrick also sought to inspect the corporate records of KYAMC.

       OCGA § 9-11-50 (a); Moore v. American Suzuki Motor Corp., 203 Ga. App. 189 (1) (416 SE2d 807) (1992).

       (Punctuation omitted.) Paulsen Street Investors v. EBCO Gen. Agencies, 237 Ga. App. 116, 121 (3) (514 SE2d 116) (1999).

        Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 261 (1) (356 SE2d 877) (1987).

        Ogletree v. Brokers South, 192 Ga. App. 53, 54 (1) (383 SE2d 900) (1989).

       OCGA § 14-2-140 (8).

        Housing Auth., City of Cartersville v. Jackson, 226 Ga. App. 182, 184 (2) (486 SE2d 54) (1997).

        Empire Distrib. v. George L. Smith II Ga. World Congress &c., 235 Ga. App. 742, 744 (509 SE2d 650) (1998).

       Burton subsequently took over this role.

        Empire Distrib., supra.

       Id.

       OCGA § 13-2-2 (4).

        Whitmire v. Colwell, 159 Ga. App. 682, 683 (285 SE2d 28) (1981).

       See Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 270 (2) (416 SE2d 274) (1992) (“ ‘[p]unitive damages may not be recovered where there is no entitlement to compensatory damages’ ”); Instrument Repair Svc. v. Gunby, 238 Ga. App. 138, 141 (4) (518 SE2d 161) (1999) (“[t]he absence of liability for compensatory damages precludes an award of OCGA § 13-6-11 attorney fees or other expenses of litigation”).

       (Punctuation omitted.) Layfield v. Southeastern Constr. Coordinators, 229 Ga. App. 71, 72 (2) (492 SE2d 921) (1997).

       Id.

       Id.

       See Kent v. Brown, 238 Ga. App. 607, 615 (5) (518 SE2d 737) (1999).


author: Pope, Presiding Judge.

text:
    A99A1420.
    DPLM, LTD. v. J. H. HARVEY COMPANY.
    (526 SE2d 409)
   Pope, Presiding Judge.

DPLM, Ltd. brought suit against J. H. Harvey Company (Harvey’s) for damages incurred when Harvey’s chose not to expand its existing grocery store in a DPLM-owned shopping center, but instead chose to close the store. Because we find that jury questions exist as to whether DPLM reasonably relied upon any promises by Harvey’s regarding the expansion of its store, we reverse the trial court’s grant of summary judgment to Harvey’s on DPLM’s claim of promissory estoppel. But because we find that the parties’ lease does not contain an implied covenant of continuous operation and thus that Harvey’s has not breached its lease in vacating the store, we affirm the trial court’s grant of summary judgment to Harvey’s on that claim. We also reverse the trial court’s grant of Harvey’s motion for summary judgment on the issue of attorney fees.

Harvey’s operates a number of grocery stores and in 1989 entered into an amended lease with DPLM on its existing store in Americus. That store was located in the Bel-Air Plaza shopping center, which was owned and operated by DPLM. Beginning in 1991 or 1992, the parties began discussing the possibility that Harvey’s might enlarge its Bel-Air Plaza store. As these discussions continued over the next few years, the parties discussed various options for the size, layout and location of the expansion.

In 1995 DPLM began to take steps to facilitate the proposed store expansion. These steps included notifying several existing tenants in Bel-Air Plaza that DPLM would be unable to renew their long-term leases, relocating at least one tenant, refusing other prospective tenants, purchasing options on adjoining property, conducting various surveys and analyses, negotiating with the city to postpone required landscaping and cooperating with Harvey’s architect in obtaining a variance. DPLM kept Harvey’s informed of many of the actions it was taking.

By February 14, 1996, Harvey’s authorized its attorney to sign a letter of intent, setting forth the “basic terms and conditions of the new, proposed lease” on a 33,000-square-foot store in Bel-Air Plaza. On April 5, 1996, however, Harvey’s offered a “modification” and indicated that it was willing to enter into “lease negotiations” for a 39,500-square-foot store. Harvey’s later prepared a draft lease for DPLM’s consideration. DPLM proposed a number of changes to the draft lease, and the parties continued to negotiate the terms of the lease, as well as how the expansion would be structured and financed. And Harvey’s was still considering various sizes and layouts for the proposed store. Despite DPLM’s repeated requests to conclude the negotiations, the parties never signed a lease for the proposed expansion.

Instead, on or around October 16, 1996, Harvey’s notified DPLM that it was considering the purchase of two existing grocery stores in Americus, and several weeks later, on November 12, 1996, it closed its Bel-Air Plaza store and moved to the newly purchased locations. Harvey’s has continued to pay the base rent, and a pro fata share of other obligations under the lease on its Bel-Air Plaza store, but discontinued any rent payments based upon percentage sales. And the Bel-Air Plaza location has remained vacant.

DPLM’s complaint sought reimbursement of the expenses it incurred in preparing for the proposed expansion, as well as damages it claims to have incurred as a result of Harvey’s abandoning Bel-Air Plaza. The trial court granted summary judgment to Harvey’s, and DPLM appeals from that order.

1. While DPLM acknowledges that the parties never finalized their negotiations or signed a lease on an expanded store, it argues that questions of fact remain as to whether Harvey’s is liable under the theory of promissory estoppel. DPLM is correct that the doctrine of promissory estoppel can provide a basis for enforcing a promise even in the absence of a binding contract:

The principle of promissory estoppel merely provides that, in certain circumstances, the reliance by the promisee or third party upon the promise of another is sufficient consideration, in and of itself, to render the executory promise enforceable against the promisor.

Loy’s Office Supplies v. Steelcase, Inc., 174 Ga. App. 701, 702 (331 SE2d 75) (1985). Thus, the fact that the parties did not enter into a binding lease agreement, in and of itself, does not preclude DPLM’s claim under promissory estoppel. See Augusta Surgical Center v. Walton &c. Office Venture, 235 Ga. App. 283, 286 (2) (508 SE2d 666) (1998) .

“Promissory estoppel claims are extremely fact specific and are not susceptible to application of general rules.” (Punctuation omitted.) Kent v. Brown, 238 Ga. App. 607, 612 (2) (f) (518 SE2d 737) (1999) . And because the appeal in this case is from the trial court’s grant of summary judgment, we must view the facts in the light most favorable to DPLM. Parks v. Multimedia Technologies, 239 Ga. App. 282, 286 (1) (521 SE2d 207) (1999). To establish its claim for promissory estoppel, DPLM must show that (1) Harvey’s made a promise regarding the expansion of their Bel-Air Plaza store; (2) Harvey’s should have expected that DPLM would rely on the promise; (3) DPLM did in fact rely upon that promise to its detriment; and (4) injustice can be avoided only by enforcement of the promise. See id.; Kamat v. Allatoona Fed. Sav. Bank, 231 Ga. App. 259, 264 (3) (498 SE2d 152) (1998).

The first issue, therefore, is whether Harvey’s made any promises in the course of the parties’ negotiations. This Court has accepted the Restatement definition of a promise: “A promise is a manifestation of an intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.” Kemira, Inc. v. Williams Investigative &c. Svcs., 215 Ga. App. 194, 198 (2) (450 SE2d 427) (1994), quoting Restatement, 2d, Contracts, § 2 (1).

In support of its claims that Harvey’s did make certain commitments, DPLM points to a series of correspondence between the parties beginning in 1992. The first letter in the series, dated April 21, 1992, from Harvey’s representative indicates that Harvey’s is “still interested” in expanding its Bel-Air Plaza store. The next letter, dated March 29, 1993, states that Harvey’s is “very interested in expanding the Americus store and [it] is one of our top priorities.” DPLM also points to Harvey’s February 14, 1996 letter of intent, which set out the terms of a proposed lease, and a letter from Harvey’s enclosing a copy of a proposed lease.

In addition to this correspondence, DPLM’s general partner testified that Harvey’s president had stated on several occasions that Harvey’s wanted to move forward with the project and on at least one occasion directed them to “move ahead.” Moreover, a DPLM memorandum indicates that in October 1995, Harvey’s president may have authorized DPLM to begin plumbing work in an area of the shopping center that had been vacated by other tenants and that would be encompassed by the then-existing plan for the proposed expansion.

While Harvey’s continued to vacillate on the size and design of the new store and no definite plan was approved, we conclude that this evidence raises a jury question as to whether Harvey’s made any promises relating to the expansion of its Bel-Air Plaza store upon which it should have expected DPLM to rely.

Closely related to this issue is the question of whether the steps DPLM took to prepare for the proposed expansion were made in reliance upon any promises by Harvey’s. Because promissory estoppel is an equitable doctrine, DPLM must show that its reliance was reasonable and not based upon DPLM’s own preconceived ideas:

This means that the plaintiff relied exclusively on such promise and not on his or her own preconceived intent or knowledge; that the plaintiff exercised due diligence, so as to justify reliance as a matter of equity; and that there was nothing under the circumstances which would prevent the plaintiff from relying to his detriment.

Simpson Consulting v. Barclays Bank, 227 Ga. App. 648, 657 (5) (490 SE2d 184) (1997). Therefore, while there is no question that DPLM took a number of steps in anticipation of the proposed expansion and that Harvey’s was aware of some or all of these steps, DPLM bears the burden of showing it took action in reliance upon a promise by Harvey’s and not based upon its own expectations.

Harvey’s argues that DPLM cannot meet this burden and cites to what it asserts is the closely analogous case of Doll v. Grand Union Co., 925 F2d 1363 (11th Cir. 1991) (construing Georgia law). While that case is not binding authority, the facts are sufficiently similar to merit a closer analysis. In Doll, Grand Union was negotiating the lease of space for a grocery store in a proposed shopping center owned by a real estate development partnership. Grand Union sent the partnership a letter stating that its real estate board had approved the project and laying out the basic terms the parties had negotiated up to that point. The letter went on to state, however, that the board’s approval was conditioned upon three contingencies and further that the parties’ agreement was conditioned upon the resolution and execution of a “ ‘mutually agreeable lease document.’ ” Id. at 1365. The parties’ negotiations ended, however, when one of the contingencies — ensuring easy access to the shopping center — fell through because the Georgia Department of Transportation decided to put a median down the center of the road in front of the development, which would prevent shoppers from turning left into the planned shopping center. The partnership sued Grand Union to recover losses sustained when it refused to enter into a lease. Id. at 1366.

After determining that the parties had not entered into a binding agreement to sign a lease, the Eleventh Circuit considered the partners’ promissory estoppel claim. It held that because the parties had agreed to the essential terms of the lease, there was sufficient evidence of a promise to withstand summary judgment. Doll v. Grand Union Co., 925 F2d at 1371. The court later concluded that Grand Union had, in fact, made certain promises:

Grand Union did indeed make promises to the partners. It promised them it was interested in leasing space in their development. It promised them that it planned to pursue negotiations. It promised them that it had every intention of finalizing an agreement with them.

Id. at 1373. Nevertheless, the court found that summary judgment was proper because the partnership could not prove reasonable reliance in light of Grand Union’s consistent assertion, in its letter of intent and its proposed draft lease, that it “had no intention of becoming obligated until the lease was drafted, approved, and signed by both parties.” Id. The Eleventh Circuit concluded that Grand Union had done everything it could to protect itself against liability during the course of negotiations by placing conditions on the deal, and that these conditions prevented the partnership from relying upon Grand Union’s promises. Id. Moreover, the court noted that the parties’ negotiations broke down not because of any actions by Grand Union, but due to the independent actions of a third party that negated one of the essential elements of the parties’ agreement. Id.

Although the facts in Doll are quite similar to those in this matter, the cases are distinguishable in important respects. While the record in this case contains evidence that both parties considered it important to reach a final agreement on the store expansion before proceeding further, Harvey’s did not make this an explicit condition to its making a commitment to the project. According to the record before us, Harvey’s made no written condition in its letter of intent, or elsewhere, stating that it would not be bound until the agreement was finalized, nor did it spell out any specific contingencies that had to be met. Instead, the February 1996 letter of intent simply sets out in a straightforward manner the basic terms of the parties’ agreement. And although the parties continued to discuss various “modifications” to this agreement, the later correspondence contains no explicit reference to any conditions. Thus, in contrast to the Doll case, a jury might conclude that Harvey’s did not do everything it could to protect itself against liability and thus that DPLM could have reasonably relied on its representations. Moreover, unlike Doll, the negotiations in this case broke down not due to factors beyond the parties’ control, but rather due in large part to Harvey’s own indecisiveness as to the final design for the store.

Instead, we find instructive the Supreme Court of Georgia’s decision in 20/20 Vision Center v. Hudgens, 256 Ga. 129, 135 (7) (345 SE2d 330) (1986). As in this case, the parties had negotiated terms and exchanged revisions to a proposed draft lease. But one of the parties, the landlord, later attempted to change a previously agreed-upon term. The landlord never signed the proposed lease and instead indicated that he had found another tenant who would pay a higher rent and who would not require as many changes to the property. Id. at 131. The Supreme Court held that although the tenant could not enforce the proposed lease, triable issues of fact existed on the issue of promissory estoppel. Id. at 135 (7).

Similarly, we conclude that the record in this case creates triable issues as to whether DPLM reasonably relied upon any promise by Harvey’s in taking steps to prepare for the expansion. See Augusta Surgical Center v. Walton &c. Office Venture, 235 Ga. App. at 286 (2).

2. DPLM next contends that the trial court erred in granting summary judgment on its breach of contract claim because issues of fact remain as to whether the parties’ existing lease agreement contains an implied covenant of continuous operation. The construction of a contract, however, is generally a matter of law for the court, unless the court determines that ambiguities remain after the appropriate rules of construction are applied. Asian Square Partners v. Ly, 238 Ga. App. 165, 166 (1) (518 SE2d 166) (1999). Moreover, courts will introduce terms into a contract only when the term does not conflict with any express provision of the agreement and “where there arises from the language of the contract itself, and the circumstances under which it was entered into, an inference that it is absolutely necessary to introduce the term to effectuate the intention of the parties.” (Citations and punctuation omitted.) Higginbottom v. Thiele Kaolin Co., 251 Ga. 148, 149 (1) (304 SE2d 365) (1983).

Georgia courts have discussed several factors which should be considered in determining whether an implied covenant of continuous operation exists, including: (1) whether the lease provides the tenant can use the premises in any other lawful manner; (2) whether the lease is freely assignable; and (3) whether the lease contains a provision that the tenant pays a percentage of revenue as rent. See Piggly Wiggly Southern v. Heard, 261 Ga. 503 (405 SE2d 478) (1991); Forehand v. Perils Realty Co., 198 Ga. App. 165 (400 SE2d 644) (1990); Kroger Co. v. Bonny Corp., 134 Ga. App. 834 (216 SE2d 341) (1975).

In their 1989 amendment the parties “ratified and confirmed” various provisions of an amended lease signed in 1969 by their predecessors in interest: Colonial Stores, Inc. as tenant and Martha Dykes as landlord. The provision in that lease governing the use of the premises provides:

Anything in this lease to the contrary notwithstanding Colonial shall open and use the premises for a food supermarket, and not otherwise. Thereafter, if Colonial elects, it may use said premises for any lawful purpose that does not conflict with any then existing negative or affirmative covenant as to use which the Landlord had made with another tenant in said shopping center.

Colonial, therefore, was required to open and operate a grocery store, but at any later time it, and Harvey’s as its successor, could elect to use the premises for “any lawful purpose.” The lease further provides that Harvey’s could transfer and assign the lease, or sublet the premises, without DPLM’s permission so long as it caused no conflict with the business of other tenants. If Harvey’s did make such an assignment, however, it remained liable for rent payments. The lease also gave Harvey’s the right to remove any fixtures it had installed in the premises “at any time.”

Nothing in these provisions, therefore, expressly required Harvey’s to maintain its grocery store on the premises, but instead the provisions “weight] strongly against a construction of the contract which would require the tenant to continue its business throughout the term.” Piggly Wiggly Southern v. Heard, 261 Ga. at 504. See also Kroger Co. v. Bonny Corp., 134 Ga. App. at 837 (“The lease must be read in the light of what is omitted as well as what is required.”).

But we must also consider the rental provisions of the lease, which required Harvey’s to make payments of one percent of its gross sales in excess of $4,005,540, in addition to a set monthly base rent. As a general rule, courts will not infer a covenant of continuous operation where the lease provides for the payment of both a percentage of gross receipts and a “substantial minimum” rent. Kroger Co. v. Bonny Corp., 134 Ga. App. at 839. The Supreme Court of Georgia has held that a base rent constituting only 47 percent of the total rental payment could be considered a substantial minimum base rent, suggesting “the absence of an implied covenant of continuous operation.” Piggly Wiggly Southern v. Heard, 261 Ga. at 504.

Here, the record reflects that the base portion of the rent was around 54 percent of the total rent Harvey’s has paid since 1982 and approximately 50 percent of the rent paid since the parties signed the 1989 lease amendment. Under the binding authority of Piggly Wiggly Southern v. Heard, therefore, the parties’ lease provides for a substantial minimum base rent, which argues against the implication of a covenant of continuous use. Id.

Accordingly, nothing in the lease reflects that the parties agreed to or bargained for Harvey’s continuous operation of the premises, “and we are not authorized to rewrite the contract to create such a provision. [Cit.]” Piggly Wiggly Southern v. Heard, 261 Ga. at 504-505.

3. DPLM also asserts error in the trial court’s grant of summary judgment to Harvey’s on its claim for bad faith attorney fees under OCGA § 13-6-11. “Bad faith” in this context means bad faith in connection with the transaction out of which the claim arose, and not bad faith in defending the claim. Smith v. Stuckey, 233 Ga. App. 103, 107 (3) (503 SE2d 284) (1998). Here, there is evidence to show that unbeknownst te DPLM, Harvey’s may have been exploring other. rental options as early as mid-1996, while at the same time negotiating terms for the Bel-Air Plaza expansion. Moreover, Harvey’s would have been exploring these options with full knowledge that DPLM was incurring costs to prepare for the proposed expansion. We find that this evidence is sufficient to raise a jury issue on DPLM’s claim of bad faith. See generally Kemira, Inc. v. Williams Investigative &c. Svcs., 215 Ga. App. at 200 (3).

Decided December 2, 1999.

Harper & Barnes, John V. Harper, for appellant.

Ellis, Easterlin, Peagler, Gatewood & Skipper, Benjamin F. Eas-terlin IV, for appellee.

Judgment affirmed in part and reversed in part.

Smith and Eldridge, JJ, concur.

       The Supreme Court’s opinion does not discuss specific rent figures, but a more complete discussion of the rental payments may be found in this Court’s opinion in the same case. Piggly Wiggly Southern v. Heard, 197 Ga. App. 656, 657-658 (1) (399 SE2d 244) (1990). In that opinion, this Court affirmed the trial court’s conclusion that the base rent was not a “substantial minimum,” but the Supreme Court reversed.


author: Smith, Judge. Eldridge, Judge,

text:
    A99A1442.
    ROBERSON v. THE STATE.
    (526 SE2d 428)
   Smith, Judge.

Lucious Roberson appeals his conviction for child molestation and denial of his motion for new trial. The State acknowledges that the prosecutor “was laying a foundation as to the credibility and veracity of the victim” and that such bolstering testimony is generally improper, but contends the testimony was permissible because it was introduced to show the reliability of a witness under OCGA § 24-3-16, the child hearsay statute. We have previously rejected the State’s position in Buice v. State, 239 Ga. App. 52, 56 (2) (520 SE2d 258) (1999). Here, the State attempted to elicit credibility evidence before the jury instead of in a separate hearing pursuant to OCGA § 24-3-16, and this occurred as a direct result of the State’s opposition to a separate hearing. This conduct was improper, and in allowing it the trial court erred. But because the witness’s response to the State’s question was relatively innocuous and ambiguous, we find this error to be harmless in the context of the evidence presented at trial, and we affirm.

1. The objectionable testimony occurred during the State’s direct examination of the child’s mother. In response to the prosecutor’s questioning, the mother testified that she had taught the victim the difference between right and wrong and that she had taught her to tell the truth. Asked if she “ever had any problem with her lying to you,” she responded, ‘You know, normal things that children lie about.” At this point, Roberson’s counsel approached the bench and objected that the State was using one witness to bolster the credibility of another. The State responded that it was nevertheless entitled to explore the child’s credibility under OCGA § 24-3-16, and the trial court overruled the objection. The prosecutor then abandoned this line of questioning.

It is significant that Roberson requested a separate hearing to determine the “reliability” of the victim’s testimony under OCGA § 24-3-16 but was opposed by the State. The State relied then and relies now on such decisions as Gregg v. State, 201 Ga. App. 238 (411 SE2d 65) (1991). Gregg and similar cases hold that a hearing is not required prior to receiving the victim’s testimony, but the State uses them to argue that a separate hearing is never necessary. Cases decided by the appellate courts of this state make clear, however, that when evidentiary rules conflict with the provisions of the child hearsay statute, a separate hearing may be necessary to avoid the presentation of inadmissible matter to the jury. That is precisely what occurred here, as a direct result of the State’s opposition to Roberson’s timely request for a hearing.

A fundamental principle of Georgia evidentiary law, established as long ago as 1860, provides: “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80, derived from Strozier v. Carroll, 31 Ga. 557, 563-564 (1860). “In no circumstance may a witnesses] credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth.” (Citations and punctuation omitted.) Roberson v. State, 214 Ga. App. 208, 210 (4) (447 SE2d 640) (1994). Testimony that another witness believes the victim — for example, testimony that the witness has not had a problem with the victim telling lies — impermissibly bolsters the credibility of the victim. Lagana v. State, 219 Ga. App. 220, 221 (464 SE2d 625) (1995). “ ‘(I)t is not the function of witnesses to determine the veracity of other witnesses.’ [Cit.]” Golden v. State, 233 Ga. App. 703 (505 SE2d 242) (1998).

The State concedes that it is generally improper to bolster the testimony of a witness. Yet, while acknowledging this well-established prohibition, the State claims that testimony about a child victim’s truthfulness is nevertheless permissible under OCGA § 24-3-16. This is plainly wrong. Otherwise, a prosecutor could present an endless succession of witnesses praising the witness’s impeccable veracity and admirable credibility. OCGA § 24-3-16 imposes a dual burden on the trial court and the proponent of child hearsay testimony. The State must present evidence proving the child’s reliability, and the court must assess that evidence. But this statute does not authorize the State to eviscerate the rule against improper bolstering.

In both Tucker v. State, 208 Ga. App. 441 (430 SE2d 811) (1993), and Gregg v. State, supra, relied upon by the State, the trial court held a separate hearing outside the presence of the jury to determine the sufficiency of the “indicia of reliability” of child hearsay testimony under OCGA § 24-3-16. A separate hearing before the trial court on a threshold determination, such as a motion to suppress or motion in limine, often involves testimony that would be improper for the jury to hear. The Supreme Court of Georgia has recognized that when considering child hearsay testimony under OCGA § 24-3-16, “it may be advisable in some situations to hold such a hearing outside the presence of the jury.” Reynolds v. State, 257 Ga. 725, 726 (2) (363 SE2d 249) (1988). In Reynolds, the Supreme Court concluded that a separate hearing before introduction of the testimony was not required under the facts of that case, noting that the trial court “ultimately found the statements reliable and admitted them and obviously would have done the same following a separate hearing.” Id. The only objection raised by Reynolds was a hearsay objection to allowing a teacher and social worker to testify to the child victim’s statements without first holding a hearing on the indicia of reliability under OCGA § 24-3-16. The decision does not indicate that the victim’s believability, credibility, or veracity was ever testified to or raised as an issue.

While a trial court’s threshold determination of a statement’s “reliability” under OCGA § 24-3-16 may involve some consideration of the witness’s veracity, this is not necessarily the case. “[T]he child’s general credibility” is only one of ten wide-ranging factors which the trial court may consider in determining reliability, and the trial court is not limited to a consideration of those ten factors alone. Gregg, supra at 240 (3) (b). Many decisions base the determination of reliability entirely on other factors such as the victim’s age, consistency of the victim’s version of events as recounted to different witnesses, immediate outcry demonstrating lack of “coaching,” physical evidence of abuse, or fear of the accused, without considering the veracity of the witness. See, e.g., Medina v. State, 234 Ga. App. 13, 14 (1) (a) (505 SE2d 558) (1998).

But when the State seeks to support its argument for reliability under OCGA § 24-3-16 with otherwise inadmissible testimony, that testimony must be received outside the presence of the jury. “[P]ointed questions regarding a victim’s credibility” must be asked outside the presence of the jury if they violate “well-established rules forbidding testimony that bolsters the credibility of the victim,” even if asked by the trial court itself. Buice v. State, supra. If the' State asks the trial court to render a decision under OCGA § 24-3-16 based upon testimony that should not be heard by the jury, it cannot first oppose a separate hearing on reliability and then insist on presenting the objectionable testimony to the jury, as it did here.

We find, however, that although the State apparently sought to elicit testimony regarding the victim’s credibility and veracity, the mother’s answers were not directly responsive. While she testified that she had taught her child the difference between right and wrong and to tell the truth, she responded to the final question by testifying not that her child was always truthful but that she sometimes had been untruthful, albeit with respect to “normal things that children lie about.” At most, this testimony only implied or suggested that the victim would be truthful with respect to her allegations against Roberson.

Moreover, viewed in light of all the evidence presented at trial, it is highly probable that the mother’s ambiguous testimony did not contribute to the jury’s verdict. Letlow v. State, 222 Ga. App. 339, 343 (474 SE2d 211) (1996). The victim made an immediate outcry to her mother, who confronted Roberson and called the police. The victim’s account of Roberson’s actions to her mother, a caseworker, and the arresting officer remained consistent. The victim’s videotaped interview also was played for the jury. The victim testified at trial, and Roberson had the opportunity to test her memory and credibility before the jury. Evidence of several similar transactions was introduced, including the testimony of another young girl whom Roberson attempted to sodomize several months after his arrest in this case. This girl’s mother testified that when she confronted Roberson, he initially denied the accusation, but then took the girl aside and “told her that he would do nothing to hurt her, that he ... he didn’t remember doing that to her, ’cause he was drunk. And that’s all he said to her. And I’m trying to remember if it was. ... I think he told her that he was sorry.” The mother also testified that her two young boys later told her that Roberson had attempted to sodomize them in the shower.

Under these circumstances, we must conclude that although the State improperly attempted to place inadmissible testimony before the jury, the testimony itself did not rise to the level of harmful error in the context of all the evidence presented in this case.

2. Roberson also contends the trial court erred in denying his motion for mistrial when the State introduced evidence of acts not set out in the indictment and also in failing to limit consideration of this evidence in its charge to the jury. We disagree.

It is true that

when the indictment specifies the commission of a crime by only one of several methods possible under the statute, if a reasonable possibility exists that the jury may convict the defendant of committing the crime in a way not alleged in the indictment, it is reversible error to charge the entire Code section.

(Citations and punctuation omitted.) Perguson v. State, 221 Ga. App. 212, 213 (1) (470 SE2d 909) (1996). But Ferguson involved the offense of aggravated child molestation, which may be committed either by an act which injures the child or by an act of sodomy. Id.; see OCGA § 16-6-4 (c). In contrast, OCGA § 16-6-4 (a) does not specify alternative ways in which the crime of child molestation may be committed. Buice v. State, supra at 59 (5).

Here, the trial court charged the jury with the text of the Code section, “Ladies and gentlemen, a person commits child molestation when he does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” The court read the text of the indictment to the jury and additionally instructed them that they must find that Roberson committed the specific acts alleged in the indictment in order to return a verdict of guilty. The trial court also explicitly instructed the jury, in the context of similar transaction evidence, that Roberson was “on trial for the particular offense charged in this bill of indictment only.” Under these circumstances, the trial court properly limited the elements of the crime to those charged in the indictment, and we find no error. Buice v. State, supra.

3. Finally, Roberson complains that similar transaction testimony was admitted at trial without any finding of the indicia of reliability under OCGA § 24-3-16. But Roberson did not raise this objection at trial. While Roberson requested a § 24-3-16 hearing with respect to the testimony of the victim in this case, he did not raise this issue with respect to the similar transaction evidence, either at the similar transaction hearing or at the time the witness testified. Although he renewed his earlier motion at trial, he never raised the ground now asserted. His only objections to the similar transaction testimony were that the sexual activities were not sufficiently similar and that the notice given by the State under Uniform Superior Court Rule 31.3 was insufficient to apprise him of the substance of the transactions. We will not address this argument made for the first time on appeal. Ramsey v. State, 214 Ga. App. 743, 744 (1) (448 SE2d 790) (1994).

Judgment affirmed.

Pope, P. J., concurs. Eldridge, J., concurs specially.

Eldridge, Judge,

concurring specially.

I concur in judgment only.

Both in this Court and in the court below, Roberson has contended only that the mother’s testimony improperly bolstered the credibility of the victim. That is the error that is before us. In that regard, the defense specifically objected to only one question from the prosecution and the subsequent answer from the victim’s mother:

[D.A.:] Have you ever had any problem with her lying to you?
[Mother:] You know, normal things that children lie about.
[Defense:] Your Honor, it’s improper for the State to use another witness to bolster the credibility of yet another witness with regard to whether she lies or not.

That was it. And that is all Roberson claims on appeal. Because the mother’s statement that the victim lies about things other children lie about neither bolstered the credibility of the victim nor contributed to the verdict, the judgment should be affirmed.

However, the bulk of the majority’s analysis goes to the impropriety of the State’s attempt to bolster the credibility of the victim by proving the “indicia of reliability” before the jury pursuant to OCGA § 24-3-16, the Child Victim Hearsay Statute. I agree with the majority that the State cannot get credibility evidence before the jury in this “backdoor” fashion, but nowhere before this Court has Roberson raised this issue or even mentioned the Child Victim Hearsay Statute. It has long been a guiding principle of this Court that “our consideration is necessarily limited to such specific objections to the admission of that evidence as were raised below.” Hunter v. State, 202 Ga. App. 195, 197 (413 SE2d 526) (1991); Carridine v. State, 234 Ga. App. 330, 331 (506 SE2d 688) (1998); Altman v. State, 229 Ga. App. 769 (1) (495 SE2d 106) (1997). In my view, taking the State (or the defense) to task on the basis of unenumerated and unpreserved issues only undermines the credibility of this Court.

Decided December 2, 1999.

Hal T. Peel, for appellant.

J. Thomas Durden, Jr., District Attorney, Ross H. Pittman III, Jeffery N. Osteen, Assistant District Attorneys, for appellee.

       Certiorari has been granted in Buice by the Supreme Court of Georgia, but on other grounds.

       While the special concurrence asserts that Roberson has failed to raise this issue, this is not the case. Roberson appealed on the basis that the trial court erred in permitting the State to introduce improper bolstering evidence. The State concedes that bolstering is improper, but asserts that the testimony is nevertheless admissible under OCGA § 24-3-16, the same argument that Buice rejects. Buice, moreover, was decided June 29,1999, after the parties’ briefs were filed in this court, and long after the trial in June 1996.

       The defense did not object to the State’s prior two questions asking (1) whether the mother had taught the victim the difference between right and wrong and (2) whether the mother had taught the victim to tell the truth. Moreover, the mother’s testimony that she “taught” her child these principles is not the same as testimony that the child employs them, especially when — in the next instant — the mother states the child has lied to her.