author: McMurray, Presiding Judge.

text:
    A90A1051, A90A1052.
    ARTRAC CORPORATION et al. v. AUSTIN KELLEY ADVERTISING, INC. et al.; and vice versa.
    (399 SE2d 529)
   McMurray, Presiding Judge.

Austin Kelley Advertising, Inc. (“Austin Kelley”) filed a multicount complaint against Artrac Corporation (“Artrac II”), Duramed Corporation (“Duramed”) and BEI Holdings, Inc. (“BEI”), seeking recovery for an advertising and publicity services debt allegedly owed by Duramed and Artrac II’s predecessor corporation, Artrac Corporation (“Artrac I”), f/k/a Health Services Group, Ltd. In Count 2, Austin Kelley seeks quantum meruit recovery from BEI, Artrac II and Duramed. In Count 3, Austin Kelley asserts fraud and seeks to set-aside a transfer of assets from Duramed (Artrac I) to Artrac II which allegedly left Duramed (Artrac I) with insufficient resources to pay the advertising debt. In Count 7, Austin Kelley seeks recovery from BEI and Artrac II, alleging malicious interference with contract.

Artrac II, Duramed and BEI denied the material allegations of the complaint. Artrac II then cross-claimed against Duramed and filed a third-party claim against Morris Bradley (Duramed’s president and chief executive officer), alleging that Duramed (Artrac I) and Bradley agreed to indemnify it for any claims asserted by Artrac I creditors.

Artrac II filed motions for summary judgment on its indemnity claims against Duramed and against Morris Bradley, respectively. Duramed and Morris Bradley filed opposing motions for summary judgment on the indemnity claims. Artrac II and BEI then filed a joint motion for summary judgment against Austin Kelley, BEI asserting that it is an improper party. In response, the trial court entered an order with the following findings of fact:

“This is an action for payment for advertising services rendered by [Austin Kelley] to a corporation originally known as Health Services Group, which changed its name to Artrac Corporation (sometimes called Artrac I in this Order), later sold a substantial part of its assets, including its name, to BEI Management [Services, Inc.], and subsequently became Duramed Corporation. BEI Management became Artrac Corporation (sometimes called Artrac II) after the purchase of the assets and name; the present Artrac Corporation^ Artrac II,] (formerly BEI Management) is a wholly-owned subsidiary of BEI Holdings, Ltd. Third-Party Defendant Morris Bradley is the chief executive officer of Duramed, and formerly the President and Chief Executive Officer of Artrac I.

“The advertising services provided by [Austin Kelley] included the creation of a new name and logo [for Health Services, Inc.], as well as brochures, pamphlets, trade show displays, newspaper ads, and stationery. [T]hese services were rendered from March 1987 through July 1987 [. The] purchase agreement between Artrac I and BEI Management was entered September 1987, and . . . the two companies agreed as to which debts Artrac II would assume in October 1987. The debt to Austin Kelley Advertising was not assumed by Artrac II (formerly BEI Management). Defendant Duramed (formerly Artrac) has admitted liability of $93,644.70 on its contract with [Austin Kelley], but is apparently insolvent.”

The trial court granted Artrac II’s and BEI’s motion for summary judgment on Austin Kelley’s quantum meruit claim, but denied the motion as to BEI’s improper party defense and Austin Kelley’s fraudulent transfer of assets claim. Morris Bradley’s and Duramed’s counter motions for summary judgment on Artrac II’s indemnity claims were granted. Artrac II and BEI now appeal in Case No. A90A1051. Austin Kelley cross-appeals in Case No. A90A1052. Held:

Case No. A90A1051

1. BEI and Artrac II first contend the trial court erred in denying their motion for summary judgment, arguing that the undisputed evidence does not support Austin Kelley’s fraudulent conveyance claim.

“The following acts by debtors shall be fraudulent in law against creditors and others and as to them shall be null and void: . . . Every conveyance of real or personal estate, by writing or otherwise ... or contract of any description had or made with intention to delay or defraud creditors, where such intention is known to the taking party [and every] conveyance, not for a valuable consideration, made by a debtor who is insolvent at the time of the conveyance.” OCGA § 18-2-22 (2) (3). “It is well established that whether a [conveyance] was made with the intent to delay or defraud creditors is a question of fact for the jury to decide from all of the circumstances of the case. Powell v. Westmoreland, 60 Ga. 572 (4) (1878). It is likewise well established that whether the debtor is solvent or insolvent is a question of fact for the jury. Primrose v. Browning, 56 Ga. 369 (3) (1876).” Goodman v. Lewis, 247 Ga. 605, 606 (1) (277 SE2d 908).

In the case sub judice, the evidence shows that BEI was a major investor and creditor of Artrac I; that Artrac I was in serious financial trouble in September of 1987 and could not pay its debts; that BEI was aware of Artrac I’s financial problems; that Artrac I’s debt to BEI was forgiven in exchange for the transfer of Artrac I’s most valuable assets to BEI’s wholly-owned subsidiary, BEI Management Services, Inc. (Artrac II) and that Artrac I was virtually worthless compared to its remaining debts after the transfer of assets to BEI Management Services, Inc. (Artrac II). This evidence raises genuine issues of material fact as to whether the transfer of Artrac Es assets was accomplished to delay or defraud creditors. This proof also raises genuine issues of material fact as to whether Artrac I was solvent or insolvent at the time of the transfer of assets. Consequently, the trial court did not err in denying summary judgment on Austin Kelley’s fraud claim.

2. Next, BEI and Artrac II contend the trial court erred in denying their motion for summary judgment, arguing that the undisputed evidence does not support Austin Kelley’s malicious interference with contract claim.

“The intentional and non-privileged interference by a third party with existing contractual rights and relations constitutes a tort for which an action shall lie. Sheppard v. Post, 142 Ga. App. 646 (1) (236 SE2d 680) (1977); Piedmont Cotton Mills v. H. W. Ivey Const. Co., 109 Ga. App. 876 (1) (137 SE2d 528) (1964); Code Ann. § 105-1401 [now OCGA § 51-9-1]. Furthermore, the courts of this state have recognized that such interference with a contractual right or relationship need not result in a breach of the contract to be actionable. It is sufficient if the invasion retards performance of the duties under the contract or makes the performance more difficult or expensive. Piedmont Cotton Mills v. H. W. Ivey Const. Co., supra at 879-880; Southern R. Co. v. Chambers, 126 Ga. 404 (55 SE 37) (1906).” McDaniel v. Green, 156 Ga. App. 549 (1), 550 (275 SE2d 124).

In the case sub judice, the evidence showing that BEI was aware of Artrac I’s debt to Austin Kelley at the time of the transfer of assets to BEI Management Services, Inc. (Artrac II) and that Artrac I possessed virtually no valuable assets after the transfer is sufficient to authorize a finding that BEI’s and Artrac II’s actions in causing the transfer of assets from Artrac I was a fraudulent attempt to preserve BEI’s interest in Artrac I over the interests of other Artrac I contract creditors. Consequently, genuine issues of material fact remain as to malicious interference with contract. The trial court did not err in denying summary judgment on Count 7 of Austin Kelley’s complaint.

3. BEI contends the trial court erred in denying its motion for summary judgment as to its being an improper party, arguing that “it was an improper party to the instant action because [Austin Kelley] failed to establish any evidence . . . that BEI was the alter ego of [Artrac II] who was the purchaser of assets at issue . . . nor has [Austin Kelley] shown any evidence that [Artrac II] was created by BEI as a sham, used to justify wrong or protect fraud.”

“ ‘Where the courts have disregarded the corporate entity because the corporation is the mere alter ego or business conduit of a person [or, as in the case sub judice a subsidiary corporation], it has generally been on the idea that the corporate entity has been used as a subterfuge and to observe it would be to work an injustice. “To establish the alter ego doctrine it must bé shown that the stockholders’ disregard of the corporate entity made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exists; and to adhere to the doctrine of corporate entity would promote injustice or protect fraud.” (Cits.)’ Farmers Warehouse of Pelham v. Collins, 220 Ga. 141, 150 (137 SE2d 619) (1964).” Carver v. Battey Machinery Co., 161 Ga. App. 315 (1) (291 SE2d 63). Further, issues of whether a subsidiary company is the alter ego of a parent company and whether the subsidiary company was formed to promote injustice or protect fraud are generally questions for the trier of fact, not the court on summary adjudication. See Liberty Lumber Co. v. Silas, 181 Ga. 774, 778 (184 SE 286).

In the case sub judice, it is undisputed that Artrac II is a wholly-owned subsidiary of BEI and that the companies have overlapping officers and directors. Further, there is evidence that BEI was a stockholder of Artrac I; that BEI was a major creditor of Artrac I and that BEI Management Services, Inc., was created by BEI to manage Artrac I at a time when Artrac I’s financial affairs were in disarray. This evidence and evidence that BEI pressured other Artrac I shareholders to sell Artrac I’s most valuable assets to BEI Management Services, Inc. (Artrac II) is sufficient to authorize a finding that BEI Management Services, Inc. (Artrac II) was created as a subterfuge to protect BEI’s financial interests over the interests of other Artrac I creditors. Consequently, the trial court did not err in denying summary judgment on BEI’s improper party defense. See Kaplan’s Nadler, Ga. Corps. & Limited Partnerships (1990 ed.), §§ 3-30; 3-31 and 3-32, pp. 97-99.

4. Artrac II argues that the trial court erred in granting summary judgment to Duramed and Bradley on its indemnity claim and denying Artrac II’s motion for summary judgment on the indemnity claims.

It is undisputed that Bradley and Artrac I (Duramed) entered into a “PURCHASE AGREEMENT” with BEI Management Services, Inc. (Artrac II) wherein Artrac I agreed to transfer certain assets to BEI Management Services, Inc., in exchange for the forgiveness of Artrac I debts .to BEI and BEI’s assumption of enumerated Artrac I liabilities. It is also undisputed that BEI Management Services, Inc., did not assume Artrac I’s debt to Austin Kelley; that Artrac I and Bradley agreed to indemnify BEI Management Services, Inc., for any liability incurred by BEI Management Services, Inc. (Artrac II) as a result of Artrac I’s (Duramed’s) failure to pay debts not specifically assumed by BEI Management Services, Inc., and that BEI Management Services, Inc., agreed to “promptly advise [Artrac I] and Bradley of the assertion of any claim which might give rise to liability against [Artrac I] and Bradley and they shall have the right to defend such claims with counsel of their choice at their own expense.” (Emphasis supplied.)

The trial court strictly construed the “prompt” notice provision of the purchase agreement and granted summary judgment to Duramed and Bradley on the indemnity claims based on Artrac IPs failure to give “prompt” written notice of Austin Kelley’s lawsuit against Artrac II. The trial court relied on undisputed evidence showing that Artrac II gave written notice to Duramed and Bradley of Austin Kelley’s lawsuit 24 hours before Artrac IPs answer was due.

Duramed was a party to the Austin Kelley lawsuit and was served by a deputy sheriff with notice of the Austin Kelley complaint five days before Artrac II was served with process. Further, Duramed and Bradley were obviously aware of Austin Kelley’s claim against Artrac II because Artrac II was named as a defendant in the complaint served upon Duramed. This evidence and evidence that Duramed answered the complaint without exercising its right to defend Artrac II is sufficient to present “a jury question as to whether there was a waiver of the written notice requirement. Assurance Co. of America v. Bell, 108 Ga. App. 766 (1) (134 SE2d 540).” Wolverine Ins. Co. v. Sorrough, 122 Ga. App. 556, 558 (2 b), 559 (177 SE2d 819). Consequently, the trial court erred in granting summary judgment to Bradley and Duramed on Artrac II’s indemnity claims. However, the trial court did not err in denying Artrac II’s motions for summary judgment on the indemnity claims because genuine issues of material fact remain as to the validity of the “PURCHASE AGREEMENT” and the indemnity clause contained therein. See Division 1 of this opinion.

Decided November 15, 1990

Rehearing denied November 29, 1990

Cohen, Pollock & Merlin, Martin M. Pollock, Lynn E. Marsal, for appellants.

Sutherland, Asbill & Brennan, Patricia B. Cunningham, John H. Fleming, for appellees.

Case No. A90A1052

5. Austin Kelley contends the trial court erred in granting summary judgment to BEI and Artrac II on its quantum meruit claim.

“[I]n order to recover under a quantum meruit theory, [claimant must] show (1) his performance as agent of services valuable to the defendants; (2) either at the request of the defendants or knowingly accepted by the defendants; (3) the defendants’ receipt of which without compensating [claimant] would be unjust; (4) [and claimant’s] expectation of compensation at the time of the rendition of the services .... See OCGA § 9-2-7, generally; Johnson v. Lipscomb-Weyman-Chapman Co., 46 Ga. App. 798 (169 SE 266) (1933).” Allen v. T. A. Communications, 181 Ga. App. 726, 727 (353 SE2d 569). In the case sub judice, the services performed by Austin Kelley were for Artrac I, not BEI or Artrac II. Consequently, Austin Kelley’s quantum meruit claim cannot survive against BEI and Artrac II since Austin Kelley could not possibly have held an expectation of compensation from BEI or Artrac II. The trial court did not err in granting summary judgment for BEI and Artrac II on Austin Kelley’s quantum meruit claim.

Judgment affirmed in part and reversed in part in Case No.

A90A1051. Judgment affirmed in Case No. A90A1052.

Birdsong and Sognier, JJ., concur. Carley, C. J., disqualified.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A90A1385.
    CHRISTENSEN et al. v. INTELLIGENT SYSTEMS MASTER LIMITED PARTNERSHIP.
    (399 SE2d 495)
   Pope, Judge.

In January of 1986 defendant Roy E. Christensen entered into negotiations with plaintiff Intelligent Systems Master Limited Partnership to purchase its wholly-owned subsidiary, Asher Technologies, Inc. Christensen submitted a written proposal to Intelligent Systems, dated March 5, 1986, whereby he expressed his intent for either him or his “nominee” to purchase the company pursuant to certain terms and conditions. Evidence was presented at the trial of this case that in reliance on Christensen’s expressed intent, Intelligent Systems permitted Christensen to take over the operation of Asher Technologies in April while the purchase agreement was being finalized. Between April and July, Intelligent Systems advanced a total of $600,000 to Asher Technologies to cover operating expenses which was to be paid back as part of the purchase agreement which was being negotiated throughout this period. In April, Christensen incorporated an entity known as Christensen Electronics, Inc., and became its president. All further negotiations for the purchase of Asher Technologies were conducted by Christensen acting in his capacity as president of Christensen Electronics, including a letter of intent signed in that capacity dated April 3, 1986. Ultimately, Christensen Electronics refused to close on the sales agreement and Intelligent Systems filed an action against both Christensen and Christensen Electronics. Evidence was presented that another loan of $400,000 was advanced to Asher Technologies to compensate for losses sustained while it was operated by Christensen. At the trial of the case the jury returned a verdict against Christensen Electronics in the amount of one dollar for breach of contract and against Christensen, individually, in the amount of $166,666.66 on plaintiff’s claim of promissory estoppel. Defendant Christensen (individually) appeals.

1. Defendant’s first two enumerations of error assert that the trial court erred in denying defendant’s motion for directed verdict on the promissory estoppel claim and his motion for judgment notwithstanding the verdict. Defendant argues no evidence was presented to support the promissory estoppel claim and that the verdict against the corporation for breach of contract precludes a finding of liability for promissory estoppel. The verdict form indicates the jury found only against the corporation on the breach of contract claim and found defendant Christensen individually liable only on the theory of promissory estoppel. This indicates the jury found in favor of the plaintiff on two separate causes of action. The evidence supports such a finding since plaintiff presented evidence it was injured not only by the breach of the agreement to purchase Asher Technologies but also by the loss of funds advanced to operate the business while the agreement was being negotiated. Even if the breach of contract was committed by the corporation and not Christensen, individually, evidence was presented from which the jury could find the funds were advanced in reliance upon the promises of Christensen, individually. Therefore, the jury could find Christensen individually liable for the loss of these funds pursuant to the doctrine of promissory estoppel, OCGA § 13-3-44. Even when a party may not be liable for breach of contract, a cause of action under the doctrine of promissory estoppel may remain. See 20/20 Vision Center v. Hudgens, 256 Ga. 129 (7) (345 SE2d 330) (1986).

Moreover, defendant admitted at trial that Christensen Electronics had no employees other than himself and no assets other than a “few thousand dollars” and the letter of intent to purchase Asher Technologies. In essence, the evidence showed Christensen Electronics was merely a shell corporation and the jury was entitled to pierce the corporate veil and find defendant Christensen individually liable for the obligations of the corporation. Thus, even if the promises plaintiff relied upon to advance the operating funds were those of the corporation, the evidence would permit plaintiff to hold defendant Christensen individually liable.

2. The measure of damages for plaintiff’s claim of promissory estoppel is the amount advanced for operating funds in reliance on defendant’s promise to execute the sale agreement and reimburse plaintiff as part of the payment. We reject defendant’s argument that no evidence was presented from which the jury could calculate damages under the promissory estoppel claim. Evidence was presented that one million dollars was advanced by plaintiff to Asher Technologies for losses sustained during the six-month period the corporation was operated by Christensen. The amount awarded by the jury was exactly one-sixth of the total amount advanced. Evidence was presented from which the jury could find plaintiff relied on the representations of defendant Christensen, individually, for the first month after operation of the company was taken over by Christensen and that after plaintiff learned that Christensen Electronics had been incorporated, plaintiff thereafter relied on the representations of the corporation. Construing the evidence in the light most favorable to the verdict, it appears the jury found defendant Christensen was personally liable for one-sixth of the funds advanced to operate the company. The evidence supports the award of damages.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.

Decided October 24, 1990

Rehearing denied November 29, 1990

Hotz & Associates, Walter H. Hotz, for appellants.

Kilpatrick & Cody, Stephen E. Hudson, Marc K. Ritzmann, William H. Boice, for appellee.


author: Deen, Presiding Judge.

text:
    A90A2263.
    WHITE v. LAWYERS TITLE INSURANCE CORPORATION.
    (399 SE2d 526)
   Deen, Presiding Judge.

Lawyers Title Insurance Corporation (“Lawyers Title”) issued a title insurance policy to White which insured title to certain property that White purchased from Blackman for $131,896.74, and which was described only as “2727 Spalding Drive” in the purchase contract. White claims that he was led to believe that he was purchasing four tracts of land (referred to as parcels 1, 2, 3, and 4) when he walked the property line with Blackman, but in reality, he paid for parcels 2, 3, and 4, and received a warranty deed describing only parcels 2 and 3. The metes and bounds description contained in the warranty deed was repeated in the title insurance certificate.

The four original parcels of land were owned by Herndon, who conveyed parcels 1 and 2 by warranty deed to McLean in 1973, and the deed was duly recorded. In 1975 Herndon executed a warranty deed in favor of South, but, because of a faulty survey, the deed described parcels 2 and 3 instead of parcels 3 and 4. This deed was also recorded. The title policy issued to South by Lawyers Title also described parcels 2 and 3. In 1977 South conveyed his interest to Blackman, and the erroneous property description was repeated. Lawyers Title again issued a title policy to Blackman insuring the described lands of parcels 2 and 3, and the deed was recorded. After August 24, 1979, the date White closed his contract with Blackman, McLean held title to parcels 1 and 2, appellant had clear title to parcel 3, and, because of the faulty survey, when Herndon attempted to convey parcel 4 to South, title to parcel 4 remained in Herndon. Shortly after the closing, appellant attempted to sell one acre from parcels 1 and 2 and was informed by McLean that he (McLean) held title to these two parcels of land. In 1980 White made a claim against the title insurance company for parcel 2, reached a settlement in the amount of $30,000, and executed a release. Nearly six years after the settlement, White brought suit against Lawyers Title, Herndon, South, Blackman, and the law firm which acted as closing attorney for the bank, contending that the title policy described only about one-half of the property that the parties intended to convey and included a description of three-fourths of an acre already owned by a third party. White sought reformation of his deed to include parcel 4, reformation of the title insurance contract, a claim for legal fraud alleging a careless misrepresentation to him that he was purchasing good title to 2727 Spalding Drive, damages for loss of the sale of one acre from parcels 1 and 2, restitution of the money he paid for parcel 1, attorney fees, punitive damages, and title to parcels 1 and 4. South and Blackman have since disappeared and were served by publication, but did not respond to the complaint.

Lawyers Title filed a motion for summary judgment, which was heard in March of 1988, contending that there were no issues relating to White’s claim to parcels 1, 2, and 4 for which it could be held responsible. The court granted the motion as to parcels 1 and 2, but denied it as to parcel 4 because issues remained with respect to White’s claim to parcel 4. Subsequently, White moved for summary judgment as to parcel 4 and, by order filed January 27, 1989, the trial court entered summary judgment in favor of appellant and against Herndon as to title to parcel 4. White sold parcels 3 and 4 in 1989 for $465,000.

In 1989, more than one year after the March 1988 grant of partial summary judgment, appellant took the position that the order granting partial summary judgment to Lawyers Title was not final and could and should be reconsidered. The parties entered into a consent order in September 1989, which provided that parcel 4 was awarded to White after the entry of partial summary judgment (in January of 1989) so that it was no longer a matter of contention between White and Lawyers Title, that the parties disagreed that the March 1988 order was substantively correct as to parcels 1 and 2, and agreed that the order was not a final order pursuant to OCGA § 9-11-54 (b) (grant of partial summary judgment). The agreement further stated that the parties desired a determination of whether the March 1988 summary judgment order should be set aside, revised, or made a final order.

When a hearing was finally held, the trial judge (Judge Fuller) ordered that the motion for reconsideration should be heard by Judge Peeler because he granted the original motion. When the motion came before Judge Peeler, he held that the motion for reconsideration was not timely and that Lawyers Title was entitled to final judgment on all claims since White had been awarded summary judgment against Herndon as to parcel 4 and it was no longer an issue in the case. White brings this appeal against only Lawyers Title.

1. We find no error in the trial court’s refusal to reconsider the 1988 grant of partial summary judgment to Lawyers Title. It is well-established that a motion to reconsider does not toll the time for filing an appeal. Lawler v. Ga. Mut. Ins. Co., 156 Ga. App. 265 (276 SE2d 646) (1980); Ellis v. Continental Ins. Co., 141 Ga. App. 809 (234 SE2d 377) (1977). The trial court was not required, as alleged by appellant, to reconsider the grant of summary judgment simply because the consent order was set down for a hearing. Judge Fuller did not order Judge Peeler to reconsider his order; he merely transferred the matter to Judge Peeler because it was his original order that was at issue. Judge Peeler exercised his discretion in declining to reopen the case, holding that the motion was not timely. We find no error in this ruling. Only the filing of a motion for a new trial, a motion in arrest of judgment, or a motion for a judgment notwithstanding the verdict can toll the period for filing a timely appeal. Ellis v. Continental Ins. Co., supra.

2. We further find that the consent order did not leave before the court the issue of recovery of expenses in obtaining title to parcel 4 as contended by appellant. The consent order merely states that Lawyers Title maintains that the order was correct substantively as to parcels 1 and 2, that White disagrees, and “both parties agree that it is not a final order pursuant to OCGA § 9-11-54 (b).” Appellant now argues that the consent order only settled legal title, but that he may still recover the expenses incurred in obtaining parcel 4 from defendant Herndon. As this appeal involves only appellee Lawyers Title, and Lawyers Title did not attempt to insure parcel 4, we cannot see where any claim can be made against it. White claims that he walked the boundaries of the property in question with his seller and that the seller, Blackman, represented that he owned title to parcels 1 through 4 when, in fact, he held title only to parcel 3. Title insurance, however, does not insure the representations of the seller, it insures only the warranty of title contained in the deed. Lynburn Enterprises v. Lawyers Title Ins. Corp., 191 Ga. App. 710, 711 (382 SE2d 599) (1989). See also OCGA § 33-7-8 for a definition of title insurance. Appellee satisfied its duty under the title insurance policy when it paid appellant’s claim for failure to receive good title to parcel 2 in. 1980. While we agree that the March 1988 order states that there were other issues remaining as to parcel 4, and it would not grant summary judgment to Lawyers Title as to parcel 4, we agree with Judge Peeler that the court’s subsequent award of title to that parcel to White settled the issue of title to the property.

3. As to the issue of expenses incurred in obtaining title to that property, the only contract between White and Lawyers Title was the title insurance policy. After the consent order was entered, appellant amended his pleadings, but made no mention of the parcel 4 claim now asserted, and a deposition taken shortly before the scheduled hearing makes no mention of such a claim. It was only one week prior to the hearing that appellant filed another amendment seeking an added claim for expenses incurred in obtaining parcel 4. As this issue was not a part of the record on which summary judgment order was entered and appellant was seeking to have reconsidered, the trial court did not err in failing to consider it.

Decided November 14, 1990

Rehearing denied November 29, 1990.

Walter B. Russell, Jr., for appellant.

Smith, Gambrell & Russell, David C. Newman, Robert W. Beynart, for appellee.

4. As to the issue of reformation of the title insurance policy to include parcel 4, appellant’s reliance upon Armstrong v. Lawyers Title Ins. Corp., 138 Ga. App. 727 (227 SE2d 409) (1976), as controlling in this case is misplaced. In that case Lawyers Title issued a policy for the entire fee, but the purchaser, who believed that he was purchasing the entire fee, received only a one-half interest under the warranty deed. Upon trying to sell the property, the purchaser learned that he had received only a one-half undivided interest in the property and could not convey fee simple title. Armstrong brought suit against Lawyers Title seeking a money judgment for the value of the fee. This court held that it was a question of fact as to whether Lawyers Title insured the entire fee or only a one-half undivided interest therein. The court went on to note that the plaintiff purchased the title insurance policy and paid the premium for the entire fee, but the insurer wished to reduce its coverage to one-half of what it charged premiums for insuring. In the case sub judice, appellant received and paid for title insurance on only two of the four parcels in question. Armstrong does not support appellant’s position that evidence of his belief that he was getting all four parcels from his seller can create a material issue of fact as to the intent of the parties outside the description of the property contained in the title insurance policy, or that the scope of the policy can be expanded beyond its terms by such evidence. The policy is clear and unambiguous: it specifically covers only parcels 2 and 3. “Parol evidence is inadmissible to add to, take from, or vary a written contract.” OCGA § 13-2-2 (1).

5. Appellant’s fraud claim is time-barred under OCGA § 9-3-31 which provides for a four-year statute of limitation.

We find no merit in any of appellant’s enumerations of error.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Beasley, Judge.

text:
    A90A1199.
    BRIGHT v. THE STATE.
    (400 SE2d 18)
   Beasley, Judge.

Bright appeals his conviction for the molestation of his girl friend’s daughter, who was five at the time of trial, by touching the child’s vaginal area with his penis. OCGA § 16-6-4 (a).

1. Appellant contends the evidence was legally insufficient but does not specify how it was lacking; he merely presents his version of it and points to arguably favorable portions. The evidence as a whole was sufficient to enable a rational trier of fact to find appellant guilty of child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant claims error in the admission of a videotape of an out-of-court interview of the child because she was not under oath at the time of the interview (OCGA § 24-9-60). There is no requirement that a child be placed under oath prior to such an interview in order for this documentary evidence, which contains a contemporaneous record of the child’s statements, to be admissible. “The admission of videotapes [exhibiting the child’s out-of-court statements] in child molestation cases is governed by OCGA § 24-3-16. See Hunter v. State, 194 Ga. App. 711 (391 SE2d 695) (1990).” Frazier v. State, 195 Ga. App. 109 (393 SE2d 262) (1990). Cf. Idaho v. Wright, _ U. S_ (110 SC 1520, 108 LE2d 760) (1990).

3. Appellant claims error in that the district attorney and the court examined the child in the presence of the jury but not under oath (OCGA § 24-9-60), as though she were a special witness entitled to credibility without oath.

First, the crime as well as the trial occurred after the effective date of OCGA § 24-9-5 (b). It specified a certain class of cases where testimony is desirable despite lack of competency. This is an instance of necessity, as alluded to by the Supreme Court in Huiet v. Schwob Mfg. Co., 196 Ga. 855, 859 (2) (27 SE2d 743) (1943). Cf. Westbrook v. State, 186 Ga. App. 493, 498 (368 SE2d 131) (1988) (concurring opinion); Ward v. State, 186 Ga. App. 503, 505 (368 SE2d 139) (1988) (concurring opinion); In the Interest of K. T. B., 192 Ga. App. 132 (384 SE2d 231) (1989). It provides that in certain limited categories of cases such as this one the child is deemed legally competent to testify. The child may testify even if he or she does not understand the nature of an oath, such as would be required in cases other than the limited ones. Since the legislature has carved out this exception, the prerequisite administration of the oath otherwise called for by OCGA § 24-9-60 has been obviated when the child does not comprehend its nature. The child simply becomes an unsworn witness, made so because incapable of taking an oath.

Second, to the degree that this child understood, she was placed under oath in effect when she promised to tell the court the truth, the whole truth, and nothing but the truth. See Chapman v. State, 257 Ga. 19, 20 (3) (354 SE2d 149) (1987); cf. Smith v. State, 247 Ga. 511 (277 SE2d 53) (1981).

4. Appellant claims error in the court’s failing, contrary to the Sixth Amendment right to confrontation and OCGA § 24-9-64, to strike testimony of witnesses who related what the child had told them. The ground is that the victim refused to answer questions on cross-examination.

OCGA §§ 24-3-16 and 24-9-5 must be construed together. Since the effective date of OCGA § 24-9-5 (b), out-of-court statements of a victim of child molestation are admissible whenever the victim is available to appear at trial, whether or not the child is capable of understanding the nature of an oath and thus regardless of age or degree of comprehension. See In the Interest of K. T. B., 192 Ga. App. 132, supra.

The purpose of cross-examination is to test the intelligence, memory, accuracy and veracity of the witness. Ledford v. State, 89 Ga. App. 683 (1) (80 SE2d 828) (1954). At lease one of the purposes of the right to confrontation is to test the certitude and credibility of the accuser when brought face to face with the accused. See Coy v. Iowa, 487 U. S. 1012 (108 SC 2798, 101 LE2d 857) (1988).

OCGA § 24-9-5 (b) expressly leaves credibility to the determination of the jury. So long as the witness is made available for confrontation and cross-examination, the defendant’s rights are protected, even if the witness is uncommunicative or unresponsive. The thrust of the child witness statute is to allow the jury, which must be convinced of guilt beyond a reasonable doubt, to judge the credibility of a child’s accusations. If a child, who has reported child molestation to an adult permitted to testify to the out-of-court statement at trial, is incapable of reiterating the accusation at trial or is unresponsive or evasive during cross-examination, the jury must decide the child’s credibility, taking into consideration the child’s maturity and ability to withstand the pressure and intimidation of the courtroom environment. The manner in which the witness responds to cross-examination is, itself, evidence as to credibility.

The child was called as an unsworn witness by the court and defendant had unlimited opportunity to examine. Her unresponsiveness to a number of questions as put by him did not constitute a deprivation of his constitutional confrontation right so as. to require that her out-of-court statements be stricken. The Sixth Amendment right “includes the right to conduct reasonable cross-examination. Davis v. Alaska, 415 U. S. 308, 315-316 (94 SC 1105, 39 LE2d 347) (1974).” Olden v. Kentucky, 488 U. S. 227, 231 (109 SC 480, 102 LE2d 513) (1988). This he was allowed to do. Defendant was . not restricted by the court in any way. Cf. Delaware v. Van Arsdall, 475 U. S. 673 (106 SC 1431, 89 LE2d 674) (1986). See Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987); see also Sosebee v. State, 190 Ga. App. 746, 748 (2) (380 SE2d 464) (1989).

Decided November 29, 1990.

May & Horkan, Dwight H. May, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Nor was the child rendered unavailable to testify in terms of OCGA § 24-3-16. Her silence itself was evidence, as the jury could observe her demeanor as each question was posed. A witness’ responsiveness or unresponsiveness, evasiveness or directness, verbal skills, intelligence, memory, perception, and apparent understanding are all factors which can be assessed by the jury and may raise a reasonable doubt.

The fact that defendant was unable to elicit more was not an infringement of his rights nor the result of any court-imposed or law-imposed barrier. The statutory right of cross-examination in Georgia is broad, Eason v. State, 260 Ga. 445 (396 SE2d 492) (1990), although it may sometimes be difficult to exercise as a practical matter in the circumstances expressly provided for in OCGA §§ 24-3-16 and 24-9-5 (b). A defendant is not denied the right to a thorough and sifting cross-examination when the witness appears to answer as well as he or she is capable of answering. Holmes v. State, 224 Ga. 553, 561 (9) (163 SE2d 803) (1968).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Carley, Chief Judge.

text:
    A90A1336.
    TOWNS v. THE STATE.
    (399 SE2d 561)
   Carley, Chief Judge.

Appellant and a co-defendant were tried before a jury and both were found guilty of rape. The conviction and sentence entered against appellant’s co-defendant was affirmed by this court in Ford v. State, 189 Ga. App. 395 (376 SE2d 418) (1988). Appellant now appeals from the judgment of conviction and sentence entered against him.

1. Appellant enumerates the general grounds, “claiming that there was no corroboration of the victim’s testimony. There is no longer any requirement that the victim’s testimony in a rape case be corroborated. [Cits.] Moreover, the victim’s testimony in this case was in fact corroborated. . . . The evidence in this case was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of . . . the [offense] of which he was convicted.” Barnes v. State, 184 Ga. App. 513 (1) (361 SE2d 876) (1987).

Decided November 29, 1990.

Robert H. Reeves, for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

2. In related enumerations of error, appellant urges that the trial court erroneously refused to allow the introduction of evidence regarding the victim’s purported prior false accusations of rape against another man. See Smith v. State, 259 Ga. 135, 136 (1) (377 SE2d 158) (1989).

Appellant and his co-defendant were represented by different counsel. Appellant’s counsel conducted a cross-examination of the victim without ever seeking to pursue the topic of her purported prior false allegations of rape. It was only during the cross-examination of the victim by counsel for appellant’s co-defendant that this evidentiary issue was ever raised and ruled upon. The record shows that appellant’s counsel never joined co-defendant’s counsel in the effort to adduce the evidence. Accordingly, appellant cannot now raise the issue on appeal. “ ‘If several parties are entitled to make an objection, and it is made by any number less than all, it does not inure to the advantage of the party or parties not joining in it.’ [Cit.] Thus, where a defendant does not expressly adopt the objection of a co-defendant, he thereby waives that objection and may not utilize it to gain review. [Cits.] In the instant case[, appellant] waived any objection [to the trial court’s evidentiary ruling] by failing to adopt the objection of [his co-defendant].” Barnes v. State, 168 Ga. App. 925, 926 (2) (310 SE2d 777) (1983).

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


author: Banke, Presiding Judge.

text:
    A90A1923.
    TRAVELERS INSURANCE COMPANY v. TY COMPANY SERVICES, INC.
    (399 SE2d 562)
   Banke, Presiding Judge.

Ty Company Services, Inc., brought this action against Travelers Insurance Company, Patricia Hamilton, Parrish Farms, Inc., James L. Allen, and Kennon Tractor Company, seeking a declaratory judgment to the effect that a policy of general liability insurance issued to it by Travelers covered a wrongful death claim being asserted against it by Ms. Hamilton. Travelers counterclaimed seeking a declaration that no coverage was afforded under the policy and that it had no obligation to defend Ty Company in the wrongful death action. At the conclusion of a bench trial, the trial court ruled that the policy did provide coverage under the circumstances. Travelers brings this appeal from that ruling.

The material facts are not in dispute. In 1984, a movable irrigation system, called a “Lockwood center pivot irrigation system,” was installed on certain property belonging to James Allen. On June 6, 1987, Ty Company was hired to make certain repairs to this irrigation system, consisting of the removal and replacement of a damaged electrical plug. The company has not performed any subsequent work on the system. Sometime after the repair was completed, the system was towed to another location on Allen’s property, where the plug in question was modified by others. On August 17, 1987, the decedent, who had leased certain farmland owned by Allen, including the use of the irrigation system, participated in towing the rig to yet another location on Allen’s property; and in attempting to operate it at that location, he received an electrical shock which resulted in his death.

The policy issued to Ty Company by the appellant contained a “completed operations hazard” exclusion. The term “completed operations hazard” was defined by the policy as follows: “ ‘Completed operations hazard’ includes bodily injury and property damage arising out of operations or a reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. ‘Operations’ include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times: (1) When all operations to be performed by or on behalf of the named insured under the contract have been completed, (2) when all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or (3) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.” Held-.

We must agree with Travelers that the policy exclusion is applicable as a matter of law, it being apparent without dispute that the insured had fully completed its repairs to the irrigation system approximately two months before the accident occurred and that the system had thereafter been put to its intended use. There is no way, consistent with the unambiguous language of the policy, that the appellant could be held liable for coverage under these circumstances. See generally 12 Couch on Insurance 2d (Rev. ed.) § 44A:24; Savannah Laundry &c. Co. v. Home Ins. Co., 189 Ga. App. 420 (376 SE2d 373) (1988); Continental Ins. Co. v. Hawkins, 170 Ga. App. 274 (316 SE2d 596) (1984); Aetna Cas. &c. Co. v. Ammons, 125 Ga. App. 74 (186 SE2d 495) (1971). Compare Southern Guaranty Ins. Co. v. Nixon, 194 Ga. App. 398 (390 SE2d 638) (1990) (where certain installation work remained to be performed); Southern Guaranty Ins. Co. of Ga. v. Jeffares, 190 Ga. App. 449 (379 SE2d 167) (1989), overruled on other grounds in Strozier v. Simmons U.S.A. Corp., 192 Ga. App. 601, 604 (385 SE2d 677) (1989) (where certain remaining work was similarly necessary for full performance of the contract requirements).

Decided November 29, 1990.

Divine, Wilkin, Deriso & Raulerson, R. Kelly Raulerson, for appellant.

Allen & Kelley, Roy Benton Allen, Jr., for appellee.

The appellees further contend that if the “completed operations hazard” exclusion is applicable, this case falls within an exception to the exclusion pertaining to injuries arising out of “(a) operations in connection with the transportation of property . . . [or] (b) the existence of tools, uninstalled equipment or abandoned or unused materials. . . .” (Emphasis supplied.) Clearly, the first of these exceptions was intended to cover injuries arising from transportation activities associated with work being performed by the insured, rather than ongoing transportation activities occurring after the insured’s operations have been completed and the property has been put to its intended use by the insured’s customer. It is similarly obvious that the “uninstalled equipment” exception was intended to apply to equipment placed on the premises in connection with the insured’s operations. Otherwise, the policy would provide coverage for activities completely disassociated with the insured’s operations and over which the insured has no control. Accordingly, we hold that the evidence in this case demanded a judgment in favor of the appellant insurer.

Judgment reversed.

Birdsong and Cooper, JJ., concur.


text:
    A90A2076.
    LLAGUNO v. THE STATE.
    (399 SE2d 564)
   Banke, Presiding Judge.

The appellant was convicted of trafficking in cocaine and misdemeanor possession of marijuana. He brings this appeal from the denial of his motion for new trial.

The appellant was seated on the right side of the rear seat of an automobile which was stopped by a state trooper on Interstate 75 in Houston County for following too closely. The car was being driven by one Feliberto Delgado, whose brother, Onelio Delgado, occupied the front passenger seat. At the trooper’s request, the driver. exited and stepped to the rear of the vehicle, where he identified himself and produced a Georgia driver’s license. After advising Mr. Delgado that he intended to issue him a warning ticket, the trooper asked to see the registration papers for the vehicle, whereupon Delgado produced a Florida registration document indicating that the vehicle was registered to his wife. In response to the trooper’s inquiries, Delgado revealed that he was en route to Atlanta after being in Miami for two days. The trooper then questioned the appellant concerning their itinerary, and his responses were consistent with Delgado’s. After a backup unit arrived on the scene, the trooper sought and obtained Delgado’s permission to search the vehicle; and during the ensuing search, two clear ziplock bags containing a total of approximately 2-Vfe grams of cocaine were found inside the plastic seat belt enclosure on the right side of the front passenger seat. The three occupants of the vehicle were thereupon arrested and the car impounded. During a more extensive search of the vehicle which was conducted at the jail, approximately a pound of cocaine as well as a small amount of marijuana were discovered behind the two rear door panels.

Based on these discoveries, the appellant and the Delgado brothers were all jointly indicted for trafficking in cocaine and possession of less than one ounce of marijuana. The appellant filed a pretrial motion to sever his trial from that of Feliberto Delgado, on the ground that he intended to call him as a defense witness. This motion was apparently granted; and at the ensuing joint trial of the appellant and Onelio Delgado, Feliberto Delgado, appearing as a defense witness, claimed ownership of the contraband and testified that the appellant and Onelio had not known of its presence in the automobile. Held:

1. The appellant contends that the trial court erred in denying his motion for a directed verdict of acquittal. The trafficking statute in effect at the time of the appellant’s arrest authorized a conviction upon proof of either actual or constructive possession of 28 or more grams of cocaine. See OCGA § 16-13-31 (a) (1), as amended by Ga. L. 1988, pp. 420-424. “ ‘A person who knowingly has direct physical control over a thing at a given time, is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.’ [Cit.] ” Lockwood v. State, 257 Ga. 796, 797 (364 SE2d 574) (1988). “ ‘A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity.’ [Cit.] . . . Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” Shirley v. State, 166 Ga. App. 456, 457 (304 SE2d 468) (1983). Because it was established without dispute that the appellant had neither a possessory nor a proprietary interest in the vehicle but was simply occupying it as a passenger, we find no evidentiary basis upon which a rational trier of fact could have concluded beyond a reasonable doubt that he was in knowing possession of the contraband. Therefore, we hold that the trial court erred in denying his motion for directed verdict. Accord Cochran v. State, 190 Ga. App. 884 (1) (380 SE2d 319) (1989); Oldwine v. State, 184 Ga. App. 173 (360 SE2d 915) (1987); Shirley v. State, supra.

Decided November 29, 1990.

Laurens C. Lee, for appellant.

Edward D. Lukemire, District Attorney, for appellee.

2. The appellant’s remaining enumeration of error is rendered moot by the foregoing.

Judgment reversed.

Birdsong and Cooper, JJ., concur.


text:
    A90A2362.
    ARNALL, GOLDEN & GREGORY v. HEALTH SERVICE CENTERS, INC.
    (399 SE2d 565)
   Deen, Presiding Judge.

Health Service Centers, Inc. (“HSC”), brought a legal malpractice action against Arnall, Golden & Gregory (“AG&G”) alleging negligence in the drafting of an agreement between HSC and Evan Boddy, the owner of a nursing home. On July 29, 1980, HSC and Boddy entered into a lease agreement containing an option to purchase the nursing home. On August 8, 1980, the parties entered into another agreement including a lease which provided, in part, that HSC would lease the nursing home and that HSC would have the right of first refusal if Boddy tried to sell the home during the term of the lease. This agreement also contained a merger clause which provided that it constituted the entire agreement between the parties. All the documents in question were drafted by AG&G. When HSC attempted to exercise its option to purchase the nursing home in 1985, Boddy repudiated the validity of the option. In Health Svc. Centers v. Boddy, 257 Ga. 378 (359 SE2d 659) (1987), the Supreme Court held that the option provision contained in the July 29, 1980, agreement did not survive the agreement of August 8, 1980, because of the merger provision. HSC then brought suit against AG&G on July 14, 1989, alleging legal malpractice in drafting the second contract. The complaint was later amended to contend that AG&G made assurances that the purchase option contained in the first contract was valid, and that the law firm concealed the fact that no option had been created. An affidavit was sdbmitted by HSC to support its contention. AG&G moved to dismiss the complaint, contending that the statute of limitation on HSC’s claim had run.

The trial court recognized the statute of limitation claim, but held that under Whitehead v. Cuffie, 185 Ga. App. 351 (364 SE2d 87) (1987), there had to be both negligence and damages shown to sustain a malpractice action, and if there was no harm there was no breach of duty. The court went on to hold that the statute of limitation was tolled until the harm was done, i.e., the attempt to exercise the option. The lower court also considered the plaintiff’s affidavit and held that there were questions of fact as to a fraud issue.

1. The trial court erred in holding that Whitehead v. Cuffie, supra, was controlling. That case did not involve a statute of limitation question, and the case law in Georgia has always held “that a cause of action for legal malpractice, alleging negligence or unskillfulness, sounds in contract (agency) and, in the case of an oral agreement, is subject to the four-year statute of limitation in OCGA § 9-3-25. . . . (Cits.)” Ballard v. Frey, 179 Ga. App. 455 (3) (346 SE2d 893) (1986). “In Georgia legal malpractice is based upon the breach of a duty imposed by the attorney-client contract of employment, and as such, the applicable statute of limitation is four years.” (Citations and punctuation omitted.) Royal v. Harrington, 194 Ga. App. 457, 458 (390 SE2d 668) (1990). See also Ekern v. Westmoreland, 181 Ga. App. 741 (353 SE2d 571) (1987); Frates v. Sutherland, Asbill & Brennan, 164 Ga. App. 243 (296 SE2d 788) (1982); and Riddle v. Driebe, 153 Ga. App. 276 (265 SE2d 92) (1980). Appellee’s argument that it did not sustain any damage until it attempted to exercise the option is without merit. The damage was done at the time the August 8, 1980, contract was signed because the merger clause it contained destroyed the option provision of the July 29, 1980, contract, and it failed to include another option provision. Appellee paid consideration for the option, but did not get it.

2. Appellant contends that HSC’s complaint does not allege fraud with the sufficiency necessary to toll the statute of limitation under OCGA § 9-3-96. “The fraud which will relieve the bar of the statute of limitation must be of that character which involves moral turpitude, and must have the effect of debarring or deterring the plaintiff from his action. [Cit.]” Riddle v. Driebe, supra at 280. In Riddle, this court held that mere statements by the attorney that the documents that he prepared for the plaintiff were legally sufficient are not actionable as actual fraud or designed to deter or debar him from filing suit, and are not sufficient to toll the statute of limitation. “Fraud cannot consist of mere broken promises, unfilled predictions or erroneous conjecture as to future events. [Cits.]” Riddle v. Driebe, supra at 281. A confidential relationship between the parties, however, lessens, if not negates, the necessity for showing actual fraud. Sutlive v. Hackney, 164 Ga. App. 740, 741 (297 SE2d 515) (1982). “ ‘Where a person sustains towards (another) a relation of trust and confidence, his silence when he should speak, or his failure to disclose what he ought to disclose, is as much a fraud in law as an actual affirmative false representation.’ Morris v. Johnstone, 172 Ga. 598 (3) (158 SE 308) (1931).” Sutlive v. Hackney, supra at 742. In the pleadings and affidavit, plaintiff alleged that it received several assurances from AG&G that an enforceable option to purchase was in existence. Indeed, the record reveals that AG&G continued to represent HSC through the appeal in Health Svc. Centers v. Boddy, supra. In view of the confidential and highly sensitive nature of the relationship between the attorney and his client, we must find that the rule set forth in Sutlive v. Hackney, supra, is controlling. Attorneys are held to the same standard with respect to their fraudulent actions or omissions with their clients as doctors are with their patients. See Hughes v. Malone, 146 Ga. App. 341, 345 (247 SE2d 107) (1978); Berman v. Rubin, 138 Ga. App. 849, 853 (227 SE2d 802) (1976). Concealment per se constitutes actual fraud where one party has the right to expect full communication of the facts from another. “Where the fraudulent concealment ... is in breach of a confidential relation involving a duty to make full disclosure, the statute [of limitation] does not begin to run until the discovery of the fraud. [Cit.]” Lowe v. Presley, 86 Ga. App. 328, 333 (71 SE2d 730) (1952).

Construing the pleadings in favor of the party opposing the motion for summary judgment, Mixon v. Ga. Bank &c. Co., 154 Ga. App. 32 (267 SE2d 483) (1980), we agree with the trial court that there remain questions of fact requiring jury resolution about AG&G’s representations as to the purchase option.

3. Appellant argues that the trial court should not have converted its motion to dismiss into one for summary judgment without giving it 30 days’ notice as required under OCGA § 9-11-56. We cannot find where appellant raised an objection in the lower court after the court converted the motion to dismiss into one for summary judgment, and it did not enumerate the court’s action as error on appeal. Enumerations of error cannot be enlarged by brief to cover an issue not raised in the enumeration. Fulton County v. Collum Properties, 193 Ga. App. 774, 777 (388 SE2d 916) (1989).

Judgment affirmed in part and reversed in part.

Pope and Beasley, JJ., concur.

Decided November 29, 1990.

Pursley, Howell, Lowery & Meeks, Paul A. Howell, Jr., for appellant.

Jones, Brown & Brennan, Taylor W. Jones, Rebecca A. Copeland, for appellee.


author: Birdsong, Judge.

text:
    A90A1111.
    COLQUITT ELECTRIC MEMBERSHIP CORPORATION v. CITY OF MOULTRIE.
    (399 SE2d 497)
   Birdsong, Judge.

The Colquitt Electric Membership Corporation (“EMC”) appeals from the judgment of the superior court affirming the decision of the Public Service Commission (“PSC”) authorizing the City of Moultrie (“the City”) to provide permanent electric service to Colquitt County’s new jail.

After Colquitt County selected the City to provide electric service to the new jail, the EMC petitioned the PSC to prohibit the City from providing the service. When the PSC upheld Colquitt County’s authority to obtain the service from the City, the EMC appealed that decision to the Superior Court of Fulton County. After conducting the required review (see OCGA § 50-13-19), the superior court affirmed the decision of the PSC, and the EMC now appeals.

Although expressed in several enumerations of error, the thrust of the appeal is that the PSC and the superior court erroneously determined that the new jail and the Colquitt County Correctional Institute (“CCCI”) will be separate facilities for purposes of the Act. Held:

The new jail is built on land owned by Colquitt County and on which the CCCI is also located. Although the new jail and the CCCI are separate buildings, they are connected by permanent enclosed covered walkways to a new, free-standing dining facility which was built at the same time as the new jail. After completion of the new dining facility, the CCCI’s existing dining facility will be closed. Regardless which party provides electric service to the new jail, the EMC will provide electricity to the dining facility since it is part of the CCCI.

The PSC hearing officer found as fact that while the CCCI is owned by the county, it is operated under the supervision and management of the State Department of Corrections because it is a county facility housing state and county prisoners. (See generally OCGA § 42-5-1 et seq.)

The hearing officer also found that the new jail will be primarily a pretrial detention facility, but will also hold some convicted prisoners awaiting transfer to the state prison system and some prisoners convicted of misdemeanors who are also serving sentences. The new jail, however, is under the control of the county sheriff. (See OCGA § 42-4-1 et seq.)

Additionally, the hearing officer found that the City and Colquitt County had agreed that city prisoners will be housed in the county jail, and the City will pay the county an agreed per-prisoner per diem rate. Further, the hearing officer found that the county desired that electric service for the CCCI and the new jail be separately metered, in part, to ascertain the cost of operating the new jail so that an appropriate per diem fee could be charged the City.

The hearing officer also found as fact the new dining facility is an expansion of the CCCI and that it will be under the supervision of the CCCI’s warden. Further, while prisoners in the CCCI will be fed in the new dining facility, prisoners in the new jail will be fed in their cells with their food transported from the new dining facility.

The parties stipulated, and the hearing officer found as fact, that both the EMC and the City are electric suppliers within the meaning of the Georgia Territorial Electric Service Act, OCGA § 46-3-1 et seq. (“the Act”), which regulates provision of retail electric service in this state. They also stipulated that the site of the new jail is in an “unassigned area” within the meaning of the Act, that both the EMC and the City have electric lines within 500 feet of the new jail, and that the EMC has provided electric service to the CCCI since 1949.

Therefore, the hearing officer concluded that both the City and the EMC meet the criteria for providing electric service to the area of the new jail, and the EMC would have the exclusive right under OCGA § 46-3-8 (b) to provide electric service to the hew jail unless it is a new premises. If the new jail is a new premises, however, then Colquitt County could choose either the EMC or the City to provide electricity.

After considering the definition of premises in OCGA § 46-3-3 (6), the hearing officer concluded that although the CCCI and the new jail are located on the same tract of land and the county will pay both electric bills, the electricity was not furnished to one consumer. This conclusion was based on his determination that the two facilities constituted two separate entities in terms of purpose and operation with two different legal entities responsible for operating the different facilities: the CCCI is supervised and managed by the Department of Corrections to house convicted prisoners and the new county jail is supervised and managed by the county sheriff to house primarily pretrial detainees.

Considering those factors the hearing officer decided that the new jail facility is not an addition to or extension of the existing CCCI, but is a new premises physically separate from the existing CCCI, and physically distinct with a separate electric system.

“The standard of review of contested cases under the Georgia Administrative Procedure Act, OCGA § 50-13-1 et seq., is set forth in OCGA § 50-13-19 (h), which provides in pertinent part that the reviewing court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, but may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are affected by error of law or clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record [or arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion].” (Punctuation omitted.) Georgia Messenger Svc. v. Ga. Pub. Svc. Comm., 194 Ga. App. 340-341 (390 SE2d 283). Moreover, “the PSC, as the agency charged with the enforcement and administration of the Georgia Territorial Electric Service Act, is entitled to great deference in its interpretation of the Act.” (Citation and punctuation omitted.) North Ga. EMC v. City of Calhoun, 195 Ga. App. 382, 384 (393 SE2d 510).

In reviewing the PSC’s decision, we must first consider OCGA § 46-3-3 (6) which defines “premises” as meaning “the building, structure, or facility to which electricity is being or is to be furnished, provided that two or more buildings, structures, or facilities which are located on one tract or contiguous tracts of land and are utilized by one electric consumer shall together constitute one premises; provided, however, that any such building, structure, or facility shall not, together with any other building, structure, or facility, constitute one premises if the permanent service to it is separately metered and the charges for such service are calculated independently of charges for service to any other building, structure, or facility. ...” (Emphasis supplied.)

The EMC argues that under OCGA § 46-3-3 (6) the permanent covered walkway connecting the CCCI to the dining facility and the similar walkway from the dining facility to the new jail make all the facilities one premises for purposes of the Act. The City, however, contends that the significant factor is the separate metering and that the walkway does not make the CCCI and the jail one facility.

We do not find controlling the fact that the covered walkway connects the CCCI to the dining facility and the dining facility to the new jail. If we held otherwise, a narrow separation or gap in the covered walkway could require a different result. Instead, we agree with the hearing officer that the walkway, or degree to which the structures are physically separated or connected, is but a factor to be considered with the actual purpose, control, and operation of the structure in determining whether one electric consumer uses the premises. Further, we find the hearing officer’s findings and conclusions that the CCCI and new jail are two electric premises, separately metered, are supported by evidence in the record and are not contrary to or in excess of the PSC’s statutory authority, and further, we do not find the PSC decision was arbitrary or capricious.

Decided October 29, 1990

Rehearing denied November 30, 1990

James C. Brim, Jr., Robert C. Richardson, Jr., Moore & Chambless, Saxby Chambless, for appellant.

Whelchel, Whelchel & Carlton, Hoyt H. Whelchel, Jr., James C. Whelchel, Mollie F. Glitsis, for appellee.

Moreover, considering the facts of this case, we do not find that this interpretation of “new premises” violates the purpose and intent of the Territorial Act, as both electric providers have lines within 500 feet of the new jail and are otherwise prepared to deliver electric service efficiently and economically. See OCGA § 46-3-2.

Accordingly, we find that the superior court did not err in affirming the PSC decision.

Judgment affirmed.

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


text:
    A90A1427.
    MANTOOTH v. THE STATE.
    (399 SE2d 505)
   Birdsong, Judge.

James Mantooth appeals his convictions for sexually molesting his two stepdaughters, “H,” age three years, and “S,” age four years. Witnesses testified the little girls told them that Mantooth had molested them. Indeed, one witness authenticated a drawing which “S” drew showing Mantooth sexually molesting her while she lay in her bed.

Further, a pediatrician testified she examined both girls and found that “S” showed evidence of repeated vaginal and anal penetration and that “H” showed evidence of repeated anal penetration. The doctor also testified that “S” displayed a lack of effect consistent with having been repeatedly sexually molested. The doctor, however, also testified “H” told her someone named “Blue” had molested her and “H” selected from a group of drawings one of a young black man as looking like Blue. Also, a videotape was played which showed both “H” and “S” being interviewed by their mother and an investigator. On the tape both girls told how Mantooth hurt and touched them. Other witnesses testified, however, that at various times the girls either stated that Mantooth had not hurt them or that it was someone else who had.

The prosecution also introduced testimony from Mrs. Mantooth that Mantooth was a drug abuser. Then, after a Jackson-Denno hearing, the prosecution introduced Mantooth’s statement that he would have had to be under the influence of drugs to have committed the acts charged.

When called to testify, “H” refused to answer any questions and the trial court found that she was not a competent witness. Nevertheless, “S” testified fully and identified Mantooth as the person who molested her, demonstrated for the jury how this was done, and also testified that she saw Mantooth molest “H” while “H” was in the next bed.

In his defense, Mantooth called witnesses who testified that the little girls identified others as having molested them and Mantooth took the stand to deny the allegations. Held:

1. Mantooth’s first three enumerations of error contend that the verdict is contrary to the evidence and without competent evidence to support it; the verdict is against the weight of the evidence; and the verdict is contrary to law and the principles of justice and equity. The thrust of these arguments is that the verdict was based upon inadmissible hearsay evidence since “H” was not a competent witness and hence the witnesses were not authorized to testify about what “H” told them. See OCGA § 24-3-16; In the Interest of K. T. B., 192 Ga. App. 132, 133-134 (384 SE2d 231); In the Interest of A. H., 192 Ga. App. 692, 693 (385 SE2d 776).

While these contentions could have merit if the convictions were based only on “H’s” testimony, that is not the case. The pediatrician’s testimony established that both little girls had been sexually molested. Further, “S” also told others that Mantooth had molested her and this testimony was properly admitted under the Child Hearsay Statute. More significantly, “S” testified in open court that Mantooth molested her and also testified that she saw Mantooth sexually molest “H.” We find this sufficient evidence of Mantooth’s guilt to satisfy the requirements of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Accordingly, these enumerations of error are without merit.

2. Mantooth also alleges the trial court erred by denying his motion for a directed verdict of not guilty on the count of the indictment alleging that he molested “H.” “[A] motion for [a] directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” Taylor v. State, 252 Ga. 125, 127 (312 SE2d 311). “S’s” testimony that she saw Mantooth molest “H” was sufficient competent evidence to support a conviction for that crime, and the trial court did not err by denying the motion. OCGA § 17-9-1 (a); Taylor v. State, supra.

3. Mantooth also alleges the trial court erred by not granting, sua sponte, a motion for a mistrial on the count of the indictment alleging he molested “S” because the prosecutor violated OCGA § 17-8-75 by making statements in the hearing of the jury about prejudicial matters not in evidence, i.e., the prosecutor’s comments about all the matters concerning “H.” Mantooth, however, does not specify what these comments were and does not cite us to any particular comment in the record. Moreover, with the exception of one portion of the argument not relevant here, neither the opening statement nor the closing argument of the prosecutor was transcribed. Under the circumstances Mantooth has failed to meet his burden of establishing error in the record. Maroney v. State, 173 Ga. App. 434 (327 SE2d 231); Brown v. State, 146 Ga. App. 286 (246 SE2d 370). We cannot assume that the prosecutor made improper comments upon prejudicial matters which were not in the record, or that if he did, the comments were so prejudicial as to mandate a mistrial even without such a motion. Moreover, by not objecting and moving for a mistrial, Mantooth waived any error. Hollis v. State, 191 Ga. App. 525, 528 (382 SE2d 145). Further, to the extent that Mantooth’s brief argues issues not included within the enumeration of error we cannot consider them. See Vinson v. State, 190 Ga. App. 676, 677 (379 SE2d 792). Accordingly, this enumeration of error is also without merit.

4. Similarly, Mantooth contends the trial court erred by not charging, sua sponte, that hearsay evidence about “H’s” accusations against Mantooth had no probative value. Mantooth admits, however, that no such charge was requested, and no objection was made about the failure to give such a charge. Indeed, Mantooth’s counsel responded to the trial judge that he had no exceptions to the charge or requests for additional charges. Under the circumstances any complaint about the charge not given was waived. OCGA § 5-5-24; Gaines v. State, 177 Ga. App. 795, 799 (341 SE2d 252). Moreover, the transcript shows that after the trial court determined that “H” was not a competent witness, Mantooth made no motion for any corrective action about the earlier testimony and made no objections to any hearsay testimony concerning “H’s” allegations. Although an instruction on the probative value of hearsay evidence might be required under other circumstances, we find that in this case the instruction was not required. Accordingly, we will not, after the fact, find the trial court erred by not giving an instruction which was not requested and which, even as posed in the appellate briefs under the testimony in this case would not have accurately instructed the jury on the law applicable to the evidence before them. Therefore, this enumeration of error is also without merit.

5. Mantooth also contends the trial court erred by denying his motion for a mistrial after the prosecution put his character in issue by asking Mrs. Mantooth whether her husband had a drug problem. “The granting or refusing of a motion for [a] mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with.” Salmon v. Salmon, 223 Ga. 129 (1) (153 SE2d 719). The transcript shows that this testimony was relevant because of Mantooth’s statement that he could only have committed the crimes if he were on drugs. Not all evidence which places a defendant’s character in issue is inadmissible. “If evidence is relevant and material to an issue in a case, it is not inadmissible because it incidentally puts the defendant’s character in issue.” (Citation and punctuation omitted.) Richie v. State, 258 Ga. 361, 362 (369 SE2d 740). “What is forbidden is the introduction by the state in the first instance of evidence whose sole relevance to the crime charged is that it tends to show that the defendant has bad character.” (Emphasis deleted.) Frazier v. State, 257 Ga. 690, 698 (362 SE2d 351). Considering the testimony of Mrs. Mantooth with the appellant’s statement to the police, the evidence was relevant on the issue of satisfying the criteria Mantooth established for him having committed these acts. Moreover, admission of evidence is within the sound discretion of the trial court and appellate courts will not interfere absent abuse of that discretion. Evidence having a tendency to establish facts in issue is relevant and admissible, and no matter how slight the probative value, our law favors admission of relevant evidence. Whisnant v. State, 178 Ga. App. 742, 743 (344 SE2d 536). Accordingly, we find no error.

6. Mantooth alleges that he was denied the effective assistance of counsel as guaranteed by the United States and Georgia constitutions. The record shows, however, that while Mantooth’s appellate counsel made this claim in an amended motion for new trial, no request was made for an evidentiary hearing on the issue, and none was held. Accordingly, the claim of ineffectiveness of counsel is waived. Johnson v. State, 259 Ga. 428, 429-430 (383 SE2d 115); Dawson v. State, 258 Ga. 380, 381 (369 SE2d 897).

7. Mantooth contends that the procedures used in the trial court violated his constitutional right to confront the witnesses against him and that the Child Hearsay Act, OCGA § 24-3-16, as applied to him violates both the Georgia and United States constitutions. The record shows that these matters were not raised in the trial court and therefore we may not consider them for the first time on appeal. Scott v. State, 243 Ga. 233, 234-235 (253 SE2d 698); Cooper v. State, 173 Ga. App. 254, 256 (325 SE2d 877).

Decided October 30, 1990

Rehearing denied November 30, 1990.

James R. McKay, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Further, the record shows that the admission of “H’s” hearsay allegations was not the result of an unconstitutional application of OCGA § 24-3-16; but instead resulted from Mantooth’s trial strategy not to object to the testimony or move to strike after the trial court found that “H” was not a competent witness. “A defendant will not be allowed to induce an asserted error, sit silently by hoping for an acquittal, and obtain a new trial when that [trial] tactic fails.” (Citation and punctuation omitted.) Hill v. State, 237 Ga. 523, 525 (228 SE2d 898). Additionally, considering the evidence against Mantooth, particularly “S’s” convincing testimony that she saw him molest “H,” we are satisfied beyond a reasonable doubt that any error resulting from the failure to strike “H’s” testimony was harmless. Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38). Mantooth was entitled to a fair trial, not a perfect one. Hill v. State, supra. Under these circumstances, we find this enumeration also to be without merit.

Judgment affirmed.

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


text:
    A90A1457.
    MILLER v. APAC-GEORGIA, INC.
    (399 SE2d 534)
   McMurray, Presiding Judge.

Plaintiff Miller brought suit against Florida Rock Industries, Inc., Buffington & Smith Contracting Company and APAC-Georgia, Inc. (“APAC”). She alleged she was injured in an automobile collision as a result of defendants’ combined negligence.

APAC contracted with the Georgia Department of Transportation (“DOT”) for the widening of Highway 92 from two lanes to four lanes and it was engaged in that endeavor on September 28, 1987. On that date, at approximately 7:00 a.m., plaintiff was traveling north on White Mill Road toward the intersection of White Mill Road and Highway 92. (The roads intersect in a “T” pattern. Thus, as a motorist approaches Highway 92 from White Mill Road, the motorist must turn right or left onto Highway 92.) A stop sign was placed on White Mill Road at the intersection.

Plaintiff had driven through the intersection two or three times previously without incident. On the morning in question, plaintiff’s infant daughter was sitting in an infant carrier on the front passenger seat. The infant began to cry and plaintiff momentarily took her eyes off the road to locate a baby bottle. When she looked up, she realized that she was only two car lengths from the stop sign. She was traveling between 30 and 35 miles per hour.

Plaintiff applied the brakes — but her car did not stop. It slid on gravel, crossed Highway 92 and plunged down a 15-foot embankment into a construction area. Miraculously, plaintiff suffered only soft tissue injuries to her head, neck and knees and her daughter was not hurt.

Ultimately, plaintiff dismissed her claims against Florida Rock Industries, Inc., and Buffington & Smith Contracting Company.

APAC, the remaining defendant, moved for summary judgment and submitted the affidavit of its project manager in support of its motion for summary judgment. He testified that he supervised the construction on Highway 92; that the contract between APAC and the DOT did not require that guardrails be erected on the far side of Highway 92; that APAC complied with all of the contract requirements, including those which pertained to barriers and warnings; that he personally asked if a barrier should be placed on the far side of Highway 92 and was told by the DOT engineer that that was not necessary; that APAC complied with industry standards concerning the placement of warnings at construction sites; and that APAC did not haul any gravel in the area of White Mill Road and Highway 92.

Plaintiff submitted the affidavits of two experts in opposition to APAC’s motion for summary judgment. One, a construction engineer, testified that the general contractor on a road construction project is responsible for maintaining the roadway free from loose gravel. The other, a police officer who investigated automobile accidents for over seven years, testified that plaintiff would have been able to stop her car before it crossed Highway 92 if gravel had not been scattered on the roadway.

The trial court granted APAC’s motion for summary judgment and plaintiff appeals. Held:

1. APAC contends the trial court properly granted its motion for summary judgment because plaintiff’s failure to keep a proper lookout and to stop at the stop sign was the proximate cause of her injuries. We disagree.

“As a general proposition issues of negligence, contributory negligence and lack of ordinary care for one’s own safety are not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the ordinary manner. [Cit.] The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable.” Ellington v. Tolar Constr. Co., 237 Ga. 235, 237 (227 SE2d 336).

Decided November 15, 1990

Rehearing denied November 30, 1990

Joe A. Weeks, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Robin L. Frazer, for appellee.

The evidence of contributory negligence on plaintiff’s part is not plain, palpable and undisputable. Plaintiff’s traffic investigation expert testified that plaintiff was unable to stop her car from going down the embankment because of the gravel on the roadway and the absence of a guardrail. Thus, even if plaintiff was negligent in failing to keep a proper lookout, a jury could conclude that plaintiff’s negligence was not the proximate cause of her injuries. Compare Suib v. Seaboard Systems R., 185 Ga. App. 713 (365 SE2d 842).

2. APAC points out that, in the absence of an inherently dangerous situation, a general contractor cannot be held liable for injuries to the public if it properly executes the DOT’s plans and specifications pertaining to barriers and warnings. C. W. Matthews Contracting Co. v. Marasco, 184 Ga. App. 150 (361 SE2d 34). APAC argues that because it complied with all the specifications of the construction contract and the DOT did not require the erection of a guardrail on Highway 92, it cannot be held liable for injuries occasioned by the absence of the guardrail. APAC’s argument in this regard is well taken. However, plaintiff contends that APAC was negligent in two respects: the failure to erect a guardrail and the failure to maintain the roadway free from loose gravel.

APAC asserts that it cannot be deemed negligent with regard to the loose gravel because it did not haul the gravel to the work site. This assertion misses the mark. APAC can be held liable if it negligently permitted the gravel to remain on the roadway. The burden was upon APAC, the summary judgment movant, to show that it was not responsible for the gravel on the roadway. APAC made no showing in this regard. Thus, at trial, plaintiff should be permitted to submit proof that APAC was negligent in failing to maintain the roadway free from gravel and that that negligence was the proximate cause of her injuries.

Judgment reversed.

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