author: McMurray, Presiding Judge.

text:
    A94A1702, A94A1877.
    CROW et al. v. COOK et al.; and vice versa.
    (451 SE2d 467)
   McMurray, Presiding Judge.

Dulcie DeFoor Cook, Leonard Mercer DeFoor, Nancy Lee Sullivan, John C. Sullivan, Jr., as trustee under the last will and testament of Charles W. DeFoor, Julia McNeel DeFoor, Charles W. DeFoor III, Jane Lee Home, James Allison DeFoor, Linda DeFoor Wickham, M. L. Brittain III, individually and as trustee of the Olive DeFoor Brittain Intervivos Trust and as executor of the will of Olive DeFoor Brittain, Charles Cook, Robert L. McCaffrey, as trustee under the will of Virginia Lee McCaffrey, Marcus A. Cook III and Bank South, N.A., as trustee under the will of H. L. DeFoor, (plaintiffs) brought an action against Trammell Crow, individually and in his capacity as trustee of the Stuart M. Crow Trust, and John C. Portman, Jr., (defendants) to recover monthly rentals allegedly due under a 99-year ground lease (“DeFoor lease”) executed on or about July 1, 1969, by defendants as lessees and plaintiffs or their predecessors in title as lessors. Plaintiffs further allege defendants failed to pay monthly rentals under a separate 99-year ground lease (“Pickett lease”) executed on or about April 1, 1970, by defendants as lessees and Roscoe Pickett as lessor. Plaintiffs (apparently) seek to recover the unpaid rentals under the Pickett lease on behalf of Pickett’s successor in title, Bank South, N.A., as trustee under the will of H. L. DeFoor.

Defendants filed a joint answer, admitting execution of the DeFoor and Pickett leases and failure to pay the monthly rentals as alleged by plaintiffs. However, defendants claim they are not liable for these unpaid rentals because plaintiffs waived, released or settled (via novation, estoppel or accord and satisfaction) their rights against defendants under the lease agreements. Defendant Crow denies individual liability, claiming he executed the ground leases in his capacity as trustee of the Stuart M. Crow Trust. Defendant Portman claims a right of indemnity via third-party complaint against Georgia ROS Development Corporation (“Georgia ROS”), alleging Georgia ROS failed to honor promises to assume all obligations under the lease agreements.

Defendant Crow filed a motion for partial summary judgment as to his individual liability under the lease agreements and plaintiffs filed a motion for summary judgment as to defendants’ liability under both the DeFoor and Pickett lease agreements. Defendant Portman filed a motion for summary judgment as to his indemnity claim against Georgia ROS. The undisputed evidence shows that the DeFoor lease was executed on July 1, 1969; that the Pickett lease was executed on April 1, 1970; that defendant Portman executed the lease agreements in his individual capacity and that defendant Crow executed the lease agreements in his capacity as trustee of the Stuart M. Crow Trust. In this regard, defendant Crow’s signature appears on signature lines printed on the last page of the DeFoor and Pickett lease agreements. The signature lines are captioned, “Trammell Crow, as trustee aforesaid,” and the first paragraph of both lease agreements describe “TRAMMELL CROW, as Trustee of THE STUART M. CROW TRUST under the Indenture of Trust dated January 20, 1963 and recorded in Deed Book 4137 beginning at page 357 in the Office of the Clerk of the Superior Court of Fulton County, Georgia. . . .”

The DeFoor and Pickett lease agreements provide that the lessees have the right to sell or assign their leasehold estates and that any subsequent purchaser or assignee may sell or assign any interest acquired in the leasehold estates. However, both lease agreements provide that “no such sale or assignment shall release the original Lessee or any assignee or grantee from the liabilities of the Lessee hereunder.” The only manner provided under the lease agreements for any such sale or assignment to operate as a release of any grantor or assignee is upon completion of certain improvements “having a value of not less than $1,000,000 [on the DeFoor property and not less than $250,000 on the Pickett property and only] if the sale or assignment [is] evidenced by an instrument in writing, properly executed and acknowledged by all the parties thereto and duly recorded in the Office of the Clerk of the Superior Court of Fulton County, Georgia, wherein and whereby the grantee or assignee assumes all of the obligations of Lessee hereunder and if a copy of such instrument is delivered to the Lessor. ...”

On June 30, 1970, the 230 Peachtree Company (purportedly a general partnership composed of Trammell Crow, as trustee of the Stuart M. Crow Trust and John C. Portman, Jr.), Trammell Crow as trustee of the Stuart M. Crow Trust, individually, John C. Portman, Jr., and Trammell Crow, individually, entered into a document entitled, “ASSIGNMENT OF LEASES,” providing for assignment of all right, title and interest in the DeFoor and Pickett lease agreements to defendant Portman and for defendant Portman’s assumption of all obligations and liabilities under the lease agreements. After this assignment, plaintiffs or their predecessors in title dealt exclusively with defendant Portman for over 21 years in executing the terms of the lease agreements, i.e., Portman paid the monthly rentals and the parties agreed to an amendment of the Pickett lease (apparently) to cure an error in the metes and bounds legal description of the lease premises. Plaintiffs also allege that defendant Portman resolved a default (failure to pay property taxes) under the DeFoor lease and that they negotiated with Portman to adjust monthly rentals pursuant to a schedule prescribed in the original lease agreement.

On September 9, 1991, defendant Portman assigned all of his right, title and interest in the DeFoor and Pickett leases to Georgia ROS. In turn, Georgia ROS assumed all obligations and liabilities under the lease agreements. Plaintiffs then began accepting rental payments from Georgia ROS and subsequently entered into negotiations with Georgia ROS regarding substantive changes to the lease agreements, i.e., the parties allegedly negotiated building restrictions prescribed in the DeFoor lease and plaintiffs purportedly offered to transfer their freehold estates in leased properties for certain monetary consideration. These alleged negotiations did not result in modification of the terms of the original lease agreements. Further, no improvements have been made on the DeFoor or Pickett lease premises so as to satisfy the express conditions of defendants’ release from liability under the lease agreements.

Georgia ROS ceased making payments under the DeFoor and Pickett leases in January 1992, and defendants have failed to cure the resulting defaults.

The trial court entered an order denying defendant Crow’s motion for partial summary judgment and entered a separate order on plaintiff’s motion for summary judgment and defendant Portman’s motion for summary judgment. This order provides (in pertinent part) as follows: “After having read and considered the entire record in this matter, and after hearing the oral argument of counsel for all parties, the Court finds [that whether] Defendant Trammell [Crow] signed the subject leases in his individual capacity is a remaining genuine issue of material fact. However, Plaintiff is entitled to judgment against Defendant Trammell Crow as trustee of the Stuart M. Crow Trust. Plaintiff is also entitled to judgment against Defendant John C. Portman. Therefore, Plaintiff’s Motion for Summary Judgment is hereby Granted in part, and Denied in part, in accordance with the Court’s aforementioned directions. . . . Consistent with the above ruling, [defendant/third party plaintiff Portman’s] Motion [for summary judgment as to his third-party claim for indemnity against Georgia ROS] is hereby GRANTED.”

Defendant Portman appeals along with defendant Crow, in his capacity as trustee of the Stuart M. Crow Trust, in Case No. A94A1702 from the partial grant of plaintiffs’ motion for summary judgment. Plaintiffs appeal in Case No. A94A1877 from the denial of their motion for summary judgment as to defendant Crow’s individual liability under the lease agreements. We consolidate Case Nos. A94A1702 and A94A1877 in this opinion. Held:

Case No. A94A1702

1. In four enumerations, defendant Crow, in his capacity as trustee of the Stuart M. Crow Trust, and defendant Portman contend the trial court erred in granting plaintiffs’ motion for summary judgment as to liability under the lease agreements.

(a) Defendants Portman and Crow argue that the first amendment to the DeFoor lease executed by defendant Portman and plaintiffs or their predecessors in title raise genuine issues of material fact as to their defense of novation.

“In order for a novation to occur there must be a mutual intention on the part of the parties to extinguish the old contract and substitute the new one for it. See Code § 20-115[, now OCGA § 13-4-5]; Hennessy v. Woodruff, 210 Ga. 742 (1) (82 SE2d 859) (1954); Hewlett v. Almand, 25 Ga. App. 346 (103 SE 173) (1920); Savannah Bank &c. Co. v. Wolff, 191 Ga. 111, 120 (11 SE2d 766) (1940); Mayer v. Turner, 142 Ga. App. 63 (1) (234 SE2d 853) (1977). Accord Code § 20-1201[, now OCGA § 13-4-101].” Leasing Systems v. Easy Street, 161 Ga. App. 756, 757 (1) (288 SE2d 879). In the case sub judice, the first (and only) amendment to the DeFoor lease was merely an agreement to correct an apparent error in the metes and bounds legal description of the leased premises. This amendment did not amount to a material deviation from the terms of the DeFoor lease so as to evidence substitution of a new agreement for the original lease agreement. Moreover, there is no evidence to sustain a finding that plaintiffs intended a novation of parties under the lease agreements.

“There may be a novation of debtors, but the novation must be such as to release the original debtor and substitute a new debtor in his place. This release and substitution may be by express terms, or may be inferred from the acts of the parties or by necessary implication from a construction of the new agreement. Yancey Bros. Co. v. Bowling, 92 Ga. App. 291, 293 (88 SE2d 566) (1955).” Franchise Enterprises v. Ridgeway, 157 Ga. App. 458, 459 (1) (278 SE2d 33). In the case sub judice, both the DeFoor and Pickett lease agreements provide for assignment without release of the original lessees. The only manner provided under the lease agreements for any such sale or assignment to operate as a release of any grantor or assignee is upon completion of certain improvements “having a value of not less than $1,000,000 [on the DeFoor property and not less than $250,000 on the Pickett property and only] if the sale or assignment [is] evidenced by an instrument in writing, properly executed and acknowledged by all the parties thereto and duly recorded in the Office of the Clerk of the Superior Court of Fulton County, Georgia, wherein and whereby the grantee or assignee assumes all of the obligations of Lessee hereunder and if a copy of such instrument is delivered to the Lessor. . . .” There is no evidence that these conditions have been met.

(b) Next, defendant Crow argues that the actions of plaintiffs or their predecessors in title in dealing exclusively with defendant Portman for over 21 years after the 1970 lease assignments raise genuine issues of material fact as to the parties’ intent to substitute defendant Portman as lessee and release defendant Crow from liability under the lease agreements. Similarly, defendant Portman argues that the actions of plaintiffs or their predecessors in title in negotiating with Georgia ROS after the 1991 lease assignments evidence an intent to relieve him of liability under the lease agreements. See Step Ahead v. Lehndorff Greenbriar, Ltd., 171 Ga. App. 805, 806 (321 SE2d 115). These contentions are without merit.

“We agree with [plaintiffs] that this case is controlled by Southland &c. Corp. v. McIntosh, 137 Ga. App. 216 (223 SE2d 257) (1976) (physical precedent), see also Rotruck v. Grandma’s Biscuits, 243 Ga. 512, 514 (255 SE2d 36) (1979), and that [they were] entitled to [summary judgment] on the assignment issue since under the [DeFoor and Pickett] lease [provisions defendants were] not relieved from [their] contractual obligation to make the rental payments upon assignment of the lease [agreements]. Step Ahead v. Lehndorff Greenbriar, Ltd., 171 Ga. App. 805, 806-807[, supra], cited by [defendant Portman and defendant Crow], is distinguishable in that the lease therein contained no express provision whereby the landlord retained its rights against the old tenant.” Sprayberry Crossing Partnership v. Tuley, 198 Ga. App. 53, 55 (2), 56 (400 SE2d 334).

The trial court did not err in granting plaintiffs’ motion for summary judgment with regard to the liability of defendant Portman and defendant Crow, as trustee of the Stuart M. Crow Trust.

2. Defendants entered into the Pickett lease with Roscoe Pickett. The other plaintiffs in the case sub judice were not parties to the Pickett lease. Consequently, it appears the trial court inadvertently entered summary judgment in favor of all plaintiffs under the Pickett lease. The trial court is directed to correct this oversight upon remand.

Case No. A94A1877

3. Plaintiffs contend the trial court erred in denying their motion for summary judgment as to defendant Crow’s personal liability, arguing that defendant Crow is bound by the common law rule existing at the time the parties executed the lease agreements, i.e., a trustee is individually liable under any contract he negotiates and executes on behalf of the trust estate. Oberdorfer v. Smith, 102 Ga. App. 336 (116 SE2d 308) (1960).

OCGA § 53-12-199 (b) provides that, “[ujnless otherwise provided in the contract, a trustee is not personally liable on contracts properly entered into in the trustee’s fiduciary capacity unless the trustee fails to reveal the trustee’s representative capacity in the contract.” Subsection (c) of this Code section provides (in pertinent part) that “[a] judgment rendered in an action brought against the trust shall impose no personal liability on the trustee. . . .” However, OCGA § 53-12-199 (b) was not effective in 1969 and 1970 when defendant Crow executed the DeFoor and Pickett lease agreements as trustee of the Stuart M. Crow Trust (Ga. L. 1991, p. 810, § 1; p. 886, § 12), and OCGA § 53-12-199 (c) (formerly OCGA § 53-12-154, and Code 1933, § 108-505) had been deemed ineffective by the Court of Appeals as abolishing the common law rule that a trustee may be sued individually under any contract he negotiates and executes on behalf of the trust estate. Oberdorfer v. Smith, 102 Ga. App. 336, 338-339, supra. This rule was the law in Georgia at the time the DeFoor and Pickett leases were executed and “ ‘[t]here [was then] little tendency [for the Georgia Court of Appeals] to relieve the trustee of personal liability ... on contracts made by him in the administration of the trust, unless, indeed, in contracting with third persons he stipulates that he shall not be personally liable.’ [3 Scott on Trusts (2d ed.) 2155, § 261.] [In fact, this court had already held that] ‘[t]he personal liability rule applies even though the party with whom the trustee contracted knew of the trustee’s position as fiduciary and even though the trust instrument stated that the trustee was to be liable in a representative capacity only, unless there was directly or indirectly an exclusion of personal liability.. . .’ Bogert, Trusts and Trustees (2d ed.) 450, § 712.” (Emphasis supplied.) Oberdorfer v. Smith, 102 Ga. App. 336, 338, supra.

In the case sub judice, there is no stipulation in either the DeFoor lease or the Pickett lease that defendant Crow shall be relieved of personal liability under the lease agreements. Nonetheless, defendant Crow argues that his execution of the lease agreement “as trustee aforesaid” and the language in the first paragraphs of the lease agreements naming him “Trustee of THE STUART M. CROW TRUST under the Indenture of Trust dated January 20, 1963 and recorded in Deed Book 4137 beginning at page 357 in the Office of the Clerk of the Superior Court of Fulton County, Georgia . . .” sufficiently reference the indenture of trust for Stuart M. Crow which provides that the “Trustee shall not incur any personal liability to any person or corporation dealing with the Trustee in the administration of any trust.” This argument is without merit.

“ ‘As a matter of contract law, incorporation by reference is generally effective to accomplish its intended purpose where . . . the provision to which reference is made has a reasonably clear and ascertainable meaning. (Cits.)’ Binswanger Glass Co. v. Beers Constr. Co., 141 Ga. App. 715, 717 (2) (234 SE2d 363) (1977). See also Hartline-Thomas v. Arthur Pew Constr. Co., Inc., 151 Ga. App. 598, 599 (260 SE2d 744) (1979).” Walls, Inc. v. Atlantic Realty Co., 186 Ga. App. 389, 390 (1) (367 SE2d 278). In the case sub judice, there is no indication in either the DeFoor lease or the Pickett lease that the terms of the indenture of trust for Stuart M. Crow are binding upon plaintiffs as parties to the lease agreements. The references in the first paragraphs of the lease agreements naming defendant Crow “as Trustee of THE STUART M. CROW TRUST under the Indenture of Trust dated January 20, 1963 and recorded in Deed Book 4137 beginning at page 357 in the Office of the Clerk of the Superior Court of Fulton County, Georgia ...” are merely descriptive and in no way indicate an intent to incorporate the terms of the trust indenture into the original lease agreements. In fact, we find no evidence that the parties intended these descriptive provisions to work as vehicles for incorporation of any terms outside the lease agreements. Consequently, genuine issues of material fact do not remain as to the parties’ intent to adopt the terms of the indenture which implemented the Stuart M. Crow Trust.

“[P]arties will be presumed to contract under the existing laws, and no intent will be implied to the contrary unless so provided by terms of their agreement.” Jenkins v. Morgan, 100 Ga. App. 561, 562 (1) (112 SE2d 23). See Van Dyck v. Van Dyck, 263 Ga. 161, 163 (2) (429 SE2d 914). The controlling law at the time defendant Crow executed the lease agreements in his capacity as trustee of the Stuart M. Crow Trust was that a trustee is presumed to be personally liable under any contract he executes on behalf of the trust estate absent specific language in the contract relieving the trustee of personal liability. Oberdorfer v. Smith, 102 Ga. App. 336, 340, supra. Accordingly, since it is undisputed that no such stipulation appears in the DeFoor lease or the Pickett lease and since parties will be presumed to contract under the existing laws, Jenkins v. Morgan, 100 Ga. App. 561, 562 (1), supra; Van Dyck v. Van Dyck, 263 Ga. 161, 163 (2), supra, defendant Crow became individually liable when he executed the DeFoor lease in July 1969 and the Pickett lease in April 1970. The fact that defendant Crow executed the lease agreements, “Trammell Crow, as trustee aforesaid,” did not diminish his personal liability thereunder. This issue was also resolved in Oberdorfer v. Smith, 102 Ga. App. 336, supra.

Decided October 25, 1994

Reconsideration denied December 12, 1994

Jones, Day, Reavis & Pogue, R. Matthew Martin, for appellants.

Robert S. Wiggins, Jr., Troutman Sanders, Mark S. Vanderbroek, for appellees.

4. Defendants’ remaining argument is without merit for the reasons stated in Division 1 (b) of this opinion.

Judgment affirmed in Case No. A94A1702 and case remanded. Judgment reversed in Case No. A94A1877.

Pope, C. J., and Smith, J., concur.

       These allegations are from letters and a memorandum identified by defendants’ attorney as business records produced by Georgia ROS during discovery or from defendant Portman’s files. The letters and memorandum are not otherwise identified, authenticated or tested for the truth of the matters asserted therein and therefore have no probative value. However, we rely on them in construing the evidence, allegations and defenses in a light most favorable to defendants as non-moving parties on summary judgment. Garmon v. Warehouse Groceries Food Center, 207 Ga. App. 89, 91 (1) (427 SE2d 308).


source: Caselaw Access Project

author: Pope, Chief Judge.

license: Public Domain

text:
    A94A1717.
    POSEY v. THE STATE.
    (451 SE2d 463)
   Pope, Chief Judge.

Defendant, Thomas Jason Posey, was convicted of impeding traffic and DUI. He appeals following the denial of his motion and amended motion for new trial.

1. Defendant first contends that the trial court erred by admitting inadmissible hearsay. However, our review of the record shows the complained of testimony was properly admitted, pursuant to OCGA § 24-3-2, to explain the officer’s conduct in arresting the defendant. See, e.g., Ivester v. State, 252 Ga. 333, 334-335 (2) (313 SE2d 674) (1984); McCloud v. State, 210 Ga. App. 69, 70 (2) (435 SE2d 281) (1993); Frazier v. State, 195 Ga. App. 599, 600 (4) (394 SE2d 396) (1990); Warren v. State, 179 Ga. App. 890 (1) (348 SE2d 88) (1986); id. at 891. (Pope, J., concurring specially); Hanson v. State, 169 Ga. App. 765, 766 (3) (315 SE2d 278) (1984).

2. Defendant also argues that the trial court erred in denying his motion for directed verdict because, other than inadmissible hearsay, no evidence was presented which showed he was the driver of the vehicle. The defendant admitted at trial that he was very intoxicated on the night in question, but denied being the driver of the vehicle.

Construed so as to support the verdict, the evidence adduced at trial showed the following: Officer Anthony Annis, a DUI task force officer with the Clayton County Police Department, testified that at approximately 2:00 a.m. on April 16, 1993, he observed a white 1985 Honda traveling southbound on Tara Boulevard. Officer Annis testified he could see that there was a female riding in the front passenger seat, that the back seat appeared empty and that he could not tell who was driving the car. Officer Annis testified about five minutes after first observing the car he received a request to meet another officer at the intersection of Tara Boulevard and Parkwood Way. When he arrived on the scene, the white Honda was stopped up against the cement divider at the red light at the intersection. Defendant was standing beside the driver’s side of the car talking to another police officer. The back doors of the car were locked, but both front doors were unlocked. Defendant told the officer he and his girl friend were traveling south on Tara, that they got into a fight, that his girl friend burned him with the cigarette lighter and hit him and then turned off the car and jumped out with the keys and started walking south on Tara. Defendant also stated to the officer that he was driving the car. Annis instructed the other officer on the scene to go and search for defendant’s girl friend and the officer returned to the scene with her a short time later. Defendant’s girl friend, Tori Farmer, told the officer that they were traveling southbound on Tara Boulevard, that the defendant was driving, that she and defendant got into a fight and that when defendant stopped at a red light she turned off the vehicle, took the keys, and started walking south on Tara. She also told him that she and the defendant were the only two people in the vehicle. Officer Annis said that defendant stated to him again that he had been driving the vehicle and when the officer questioned the defendant about being too drunk to drive, the defendant stated “John” was driving, but he took off running.

Farmer testified at trial that she did not remember anything after she left the bar where she and the defendant had been drinking, and that she was very intoxicated on the night in question. Defendant also testified, and denied driving the car. Defendant testified that his friend Matthew Jackson was driving and that when he told the officer “John” was driving he merely stated the wrong name. Defendant also testified that he asked Farmer to tell the officer that “John” was driving but that she did not respond to his request. Matthew Jackson also testified at trial, and stated that he was driving the car on the night in question.

A conviction for driving or being in actual physical control of a moving vehicle while under the influence of intoxicants may be based on circumstantial evidence. Schoicket v. State, 211 Ga. App. 636, 637 (2) (440 SE2d 65) (1994). “The circumstantial evidence need not exclude every hypothesis save that of guilt, but only reasonable hypotheses, so as to justify a finding of guilt beyond a reasonable doubt. [Cits.]” Melendy v. State, 202 Ga. App. 638 (1) (415 SE2d 62) (1992). We have no yardstick to measure consistency or reasonableness, save the opinion of the jurors, whose function it is to determine credibility of witnesses and questions of reasonableness. Gazaway v. State, 207 Ga. App. 641, 642 (1) (428 SE2d 659) (1993). Here the jury chose to reject the alternate hypothesis offered by the defendant. “On appeal from a finding of guilt, the presumption of innocence no longer prevails and evidence must be viewed in the light most favorable to the verdict, for it reflects the jury’s determination on the credibility and weight of evidence which determination we must accept; we consider only the sufficiency of the evidence to support a conviction. [Cit.] We have reviewed the evidence in favor of the jury’s verdict and find it sufficient to enable a rational trier of fact to find [defendant] committed the offenses charged, . . . beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)].” Id. 642-643. See also Marsh v. State, 211 Ga. App. 751, 752 (440 SE2d 478) (1994); Dean v. State, 203 Ga. App. 836 (418 SE2d 117) (1992); Melendy, 202 Ga. App. at 638.

Decided October 18, 1994

Reconsideration denied December 12, 1994

W. Donald Patten, Jr., for appellant.

Keith C. Martin, Solicitor, Elizabeth B. Cofer, Assistant Solicitor, for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


author: Ruffin, Judge.

text:
    A94A1748.
    GRIFFIN-SPALDING COUNTY SCHOOL SYSTEM v. DANIEL.
    (451 SE2d 480)
   Ruffin, Judge.

Plaintiff, Mary Frances Daniel, a kindergarten through fifth grade teacher, challenged her school principal’s decision prohibiting teachers from leaving campus during their “duty-free” lunch period. The principal’s decision was affirmed on Daniel’s appeals to the superintendent of schools, the county board of education and the state board of education. Daniel appealed the decision of the state board to the Superior Court of Spalding County. The superior court reversed the state board’s decision and this appeal followed by the Griffin-Spalding County School System (school system).

1. In its first enumeration of error, the school system asserts the superior court erred in reversing the decision of the state board of education. The state board concluded OCGA § 20-2-218 does not grant K through 5 teachers the unrestricted ability to leave campus during their lunch period.

Decided November 21, 1994

Reconsideration denied December 12, 1994

Beck, Owen & Murray, J. C. Owen, Jr., for appellant.

OCGA § 20-2-218 (a) provides in pertinent part that “[e]very teacher who is employed in grades K through 5 for a period of time of more than one-half of the class periods of the regular school day shall be provided a daily lunch period of not less than 30 consecutive minutes, and such employee shall not be assigned any responsibilities during this lunch period. . . . This duty-free lunch period shall not be calculated under any circumstances as a part of any daily planning period or other noninstructional time.” (Emphasis supplied.) If necessary, in cases of “unforeseen and unavoidable personnel shortage [s], a local unit of administration may require a teacher otherwise entitled to a duty-free lunch period to supervise students during such lunch period but for no more than one day in any school week.” OCGA § 20-2-218 (d). The superior court adopted Daniel’s argument that the rule requiring her to remain on campus during her duty-free lunch period creates a “duty” to stay on campus and therefore violates the statute. We disagree.

We are required to look for the intent of the legislature and construe statutes to effectuate that intent giving all words their ordinary significance. City of Roswell v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991). It appears as though the legislature’s intent was to insure teachers will be provided a period during the day when they will be free from assignment of any instructional, administrative or supervisory responsibilities. We find no indication the legislature intended to allow teachers to unconditionally leave campus during this period. To the contrary, in cases of unforeseen personnel shortages, teachers can be required to supervise students during their duty-free period. If a school experienced an unforeseen personnel shortage during the day, and all the teachers left campus during their “duty-free” period, no teachers would be available to supervise students during this time. Such a result was clearly not intended by the legislature. Since we believe the pertinent language only prohibits the assignment of instructional, administrative or supervisory responsibilities, a rule restricting teachers from leaving the school campus during this period is not in conflict with the statute.

2. Having determined the trial court erred in Division 1, it is not necessary to address the school system’s remaining enumerations of error.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.

Pamela V. Sloane, James D. Dunham, for appellee.


text:
    A94A1839.
    WRIGHT v. THE STATE.
    (452 SE2d 118)
   Pope, Chief Judge.

This is the second appearance of this case before this court. Defendant appeals her misdemeanor convictions of obstruction of a law enforcement officer (OCGA § 16-10-24) and maintaining a disorderly house (OCGA § 16-11-44).

The record shows that defendant was tried and convicted on May 30, 1990. On February 7, 1991, this court dismissed defendant’s pro se appeal without prejudice and remanded in order that she might be properly advised of her right to have counsel appointed for appeal. Wright v. State, 198 Ga. App. 531 (402 SE2d 807) (1991). See Cochran v. State, 253 Ga. 10 (315 SE2d 653) (1984); Jacobs v. State, 184 Ga. App. 869 (363 SE2d 155) (1987). Appellate counsel was appointed on January 6, 1994, and the present appeal was brought on February 4, 1994.

1. Defendant first contends the trial court failed to appoint appellate counsel in a timely fashion. Three years elapsed between this court’s February 1991 order that defendant be advised of her right to appellate counsel and the actual appointment of counsel; however, defendant states in her brief that a hearing was set for March 1, 1991, to determine defendant’s indigency for court-appointed representation. The record indicates that a certificate of indigency was not filed by defendant until January 6, 1994, and appellate counsel was appointed the same day. There is nothing in the record to indicate the trial court failed to comply with this court’s order to advise defendant of her right to appellate counsel in a timely fashion. Nor does the record indicate that defendant sought to avail herself of appellate counsel prior to January 1994. “ ‘There is a presumption, in the absence of a showing to the contrary, that a public official, including a trial judge, performed faithfully and lawfully the duties devolving upon him by law.’ ” Walker v. State, 163 Ga. App. 684 (294 SE2d 717) (1982). In light of the facts presented, this enumeration of error is without merit.

2. Defendant next challenges the sufficiency of the evidence. On March 22, 1994, defendant filed a stipulated transcript of the proceedings at trial. However, the State refused to stipulate to defendant’s transcript because the witnesses were unable to remember their testimony, and the trial judge indicated on the front of defendant’s proposed stipulation that he did not remember what transpired at trial. See OCGA § 5-6-41 (a); Smith v. State, 260 Ga. 274 (3) (393 SE2d 229) (1990); Patterson v. State, 233 Ga. 724, 730-731 (213 SE2d 612) (1975); Pahnke v. State, 203 Ga. App. 88, 89 (416 SE2d 324) (1992). “Without a transcript to review, this court must assume as a matter of law that the evidence at trial supported the court’s findings. [Cit.]” Johnson v. State, 261 Ga. 678, 679 (2) (409 SE2d 500) (1991). It is the burden of the complaining party, including pro se appellants, see Frasier v. State, 160 Ga. App. 812 (287 SE2d 669) (1982), to compile a complete record of what happened at the trial level, and “when this is not done, there is nothing for the appellate court to review.” Zachary v. State, 245 Ga. 2, 4 (262 SE2d 779) (1980).

Decided October 21, 1994

Reconsideration denied December 12, 1994.

Darrel L. Hopson, for appellant.

Carolyn R. Wright, pro se.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.

3. Defendant also challenges the constitutionality of OCGA § 16-11-44. However, there is nothing in the record to indicate that this issue was raised at trial. It is well settled that this court will not review constitutional questions which were not addressed by the trial court. Dye v. State, 205 Ga. App. 781 (423 SE2d 713) (1992); Arp v. State, 249 Ga. 403 (291 SE2d 495) (1982); Alexander v. State, 239 Ga. 810 (239 SE2d 18) (1977). This enumeration is thus without merit.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


author: Blackburn, Judge.

text:
    A94A2645.
    KING v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (451 SE2d 482)
   Blackburn, Judge.

This is a discretionary appeal of the trial court’s orders denying appellant Michael B. King’s motion to set aside the dismissal of his complaint against the Board of Regents of the University System of Georgia, and awarding fees and costs against him.

King, an attorney, filed a breach of contract action pro se against the appellee, the Board of Regents of the University System of Georgia (Board), based upon his unsuccessful tenure as a student at Georgia State University’s College of Law. On September 8, 1993, because of difficulties in the scheduling of depositions, the trial court granted King’s request to extend discovery for 30 days. The trial court further instructed King to cooperate with the Board’s counsel concerning the scheduling of his deposition in the event that counsel desired to depose him within this period. When King indicated that he would not be available to be deposed on September 27, 1993, the Board, on September 23, 1993, moved to compel his attendance in accordance with the notice to depose, or in the alternative, to dismiss the complaint and assess attorney fees and costs against King. The next day, King moved the court to vacate the notice to depose.

Decided November 22, 1994

Reconsideration denied December 12, 1994

Michael B. King, pro se.

Michael J. Bowers, Attorney General, Dennis R. Dunn, Senior

On December 13, 1993, the trial court held a hearing on the motions, and King failed to appear at the hearing. The record does not show that King was served with notice of the hearing. However, in the trial court’s order of December 28, 1993, the court indicated that the motions were heard “pursuant to published notice in accordance with the Rules of this Court.” The court denied King’s motion, granted the Board’s motion, and dismissed the complaint. The court found that the Board’s counsel was entitled to attorney fees based upon King’s wilful refusal to cooperate with discovery, and subsequently entered an order awarding attorney fees and costs to the Board.

King maintains that he did not receive notice of the hearing on the motion to compel discovery or in the alternative to impose sanctions and dismiss the complaint, and this absence of notice warranted setting aside the December 28, 1993, order. We agree.

OCGA § 9-11-6 (d) provides that a written motion and notice of the hearing thereon shall be served. “Service of such notice is controlled by OCGA § 9-11-5 (b), which provides specific means by which service may be accomplished and does not make provision for service by publication. Publication of notice of a motion hearing date is not, by itself, sufficient compliance with [OCGA] § 9-11-6 (d).” (Citation and punctuation omitted.) TMS Ins. Agency v. Galloway, 205 Ga. App. 896, 898 (424 SE2d 71) (1992). It is undisputed that King was not served with notice of the motion hearing in the manner provided by statute. “ ‘The failure of counsel or a party acting pro se to receive notice of a hearing constitutes such a defect as will authorize the setting aside of the judgment under OCGA § 9-11-60 (d) (3).’ [Cits.]” Id. at 897. Accordingly, the trial court erred in denying King’s motion to set aside.

King’s remaining enumerations of error are rendered moot by the foregoing.

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.

Assistant Attorney General, for appellee.


author: Birdsong, Presiding Judge.

text:
    A94A2692.
    STRONG v. WACHOVIA BANK OF GEORGIA, N.A.
    (451 SE2d 524)
   Birdsong, Presiding Judge.

Appellant Robert W. Strong appeals the judgment entered in favor of appellee Wachovia Bank of Georgia, N.A. (Wachovia).

Appellee Wachovia was the secured party of a loan made to appellant for the purchase of a cabin cruiser. Appellant defaulted and appellee repossessed the cruiser, which served as collateral for the loan; appellee tendered notice to appellant of its intent to sell said collateral at private sale and the boat subsequently was sold. Appellee Wachovia thereafter filed suit asserting its entitlement to deficiency judgment against appellant in the amount of $20,596.59 plus accrued interest. Following denial of appellant’s motion for directed verdict, the jury rendered a verdict in favor of appellee in an amount of $12,500 and judgment was entered. Held:

1. Appellant asserts the trial court abused its discretion by denying appellant’s motion to compel discovery. “ ‘(A) trial court has broad control over the use and limitations of discovery procedures, and unless there is a clear abuse of this discretion the appellate courts will not interfere.’ ” Lewis v. Evans, 212 Ga. App. 49, 51 (441 SE2d 425). While appellant has established a basis on which the trial court could have granted its motion to compel discovery, appellee has shown certain deficiencies in procedure which would provide a basis for the trial court to deny the motion. Specifically, the record reflects, inter alia, that appellant failed to comply with the requirements of Uniform Superior Court Rule 6.4 (B) in that at the time of filing of the motion to compel discovery, appellant failed to attach thereto a certifying statement that a conference had been conducted with opposing party’s counsel in a good faith effort to resolve the matters involved and that such effort failed. As appellant failed to comply fully with the Uniform Superior Court Rules pertinent to discovery, some basis existed for the trial court to deny the motion to compel discovery; no clear abuse of discretion by the trial court has been established.

2. Appellant asserts the trial court abused its discretion in denying appellant’s motion to add a counterclaim, as authorized pursuant to OCGA § 9-11-13 (f). Specifically, appellant contends that he made the affirmative showings required by OCGA § 9-11-13 (f) and, further, that justice required the trial court to allow the pro se appellant/defendant to file his counterclaim against appellee/plaintiff “for selling his property in a commercially unreasonable manner.” However, during the pretrial proceedings, appellant failed to ground his motion to file a counterclaim out-of-time on grounds that the sale was conducted in a commercially unreasonable manner. Rather, after acknowledging his current awareness that “the price obtained at the time of sale of the property was far less than commercially reasonable,” appellant nonetheless stated the following position to the trial court as the grounds for his motion: “Therefore, it is the [appellant/] defendant’s position, that the [appellee/] plaintiff willfully and deliberately breached its fiduciary duties owed to the [defendant] by the sale of the property in question at a price that was known to the plaintiff to be below the appraisal of the boat and trailer in question.” (Emphasis supplied.) This assertion of grounds would mislead the trial court into believing that the basis of appellant’s proposed counterclaim was that of breach of fiduciary duty. In May v. C & S Nat. Bank, 202 Ga. App. 217, 219 (1) (413 SE2d 780), it was held that creditors deal with debtors at arm’s length and do not stand in a fiduciary capacity in relationship to them, and this is true even where the debtor places special trust and confidence in a bank or its officers. Thus, no viable claim of breach of fiduciary duty by appellee bank existed as a matter of law, and the trial court would not err in denying a motion to add such a counterclaim. Appellant cannot now assert that he was seeking authorization to file a counterclaim grounded on a claim of the commercial unreasonableness of the sale. First, such a claim would constitute a shifting of the position raised before and ruled upon by the trial court; as such, it is not preserved for appellate review, as there was no ruling as to the permissibility of filing the particular counterclaim here being asserted. Cf. Westwind Corp. v. Washington Fed. Savings &c. Assn., 195 Ga. App. 411 (1) (393 SE2d 479). Additionally, the motion filed by appellant would tend to mislead the trial court as to the viability of the proposed counterclaim thereby contributing to the trial court’s denial of the motion. It is well settled that a party cannot complain of an appellate ruling, order, or judgment that his own legal strategy, litigative procedure, or conduct aided in causing. Williams v. Food Lion, 213 Ga. App. 865, 868 (446 SE2d 221); Perryman v. Rosenbaum, 205 Ga. App. 784, 790 (423 SE2d 673).

3. Appellant contends the lower court erred in denying his motion for directed verdict because appellee failed to establish the value of the repossessed collateral at time of repossession.

In considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion; and a verdict shall be directed only where there is no conflict in the evidence as to any material issue, and the evidence introduced with all reasonable deductions therefrom, shall demand a particular verdict. Mattox v. MARTA, 200 Ga. App. 697, 698 (1) (409 SE2d 267). The standard of appellate review of a trial court’s denial of a directed verdict motion is the “any evidence” standard. Id.

“ ‘Where the commercial reasonableness of a sale is challenged by the debtor, the party holding the security interest has the burden of proving that the terms of the sale were commercially reasonable and that the resale price was the fair and reasonable value of the collateral. The secured party must also prove the value of the collateral at the time of repossession and that the value of the goods does not equal the value of the debt. If this proof is not forthcoming, it is presumed that the value of the goods is equal to the amount of the debt.’ . . . [Further,] [e]ven if the sale is conducted in a commercially reasonable manner, proof of the sale price is not sufficient to overcome the presumption against appellee that the value of the collateral equals the debt on it.” Brewer v. Trust Co. Bank, 205 Ga. App. 891, 893 (3) (424 SE2d 74).

The transcript reveals that the balance due on the debt at time of repossession was approximately $42,000. Mr. Southwick, who had owned a boat brokerage company for about 14 years expressed his expert opinion, without objection, that if the boat had been sold in July 1991 in the same repaired condition in which it was sold in January 1992, the boat would have been “worth” $33,000 to $35,000. On cross-examination, he also opined that if the boat had been sold in July 1991, with none of its electronic equipment missing and in an “improved condition” the value of the boat would have been $40,000 but it could not have been any more than that. In regard to this testimony, “ ‘(a) 11 evidence is admitted as a matter of course unless a valid ground of objection is [timely] interposed.’ ” Hite v. State, 208 Ga. App. 267, 269 (1) (430 SE2d 125). The fact that the witness did not know the actual condition of the boat at the time of repossession did not render speculative the witness’ value estimates (certain of which were elicited by appellant). The lack of a personal inspection of the boat at the time of repossession would affect only the weight to be given his value testimony and not its admissibility; this is particularly true, as the witness also gave a detailed explanation of the condition of the boat at the time he was ordered by appellee to make certain repairs thereon in order to facilitate its sale, and he explained that certain of the damage was due to lack of adequate maintenance over a prolonged period of time spanning at least several years. Additionally, Mr. Morley who had worked for appellee for fourteen years and who had handled repossessions and foreclosures for the last eight years, testified without objection, that in the regular course of business he received condition reports from the repossession company which repossesses property for the bank and that P-16 was the report received; appellant’s counsel on cross-examination stated that he desired to “tender P-16 so we can get into the contents,” and in apparent response, appellee’s counsel immediately tendered P-16 and other documents without objection by appellant. By his conduct and trial tactics appellant aided in the admission of the condition report; he cannot complain of the result thereon on appeal. Perryman v. Rosenbaum, supra at 790. Thereafter, Mr. Morley testified that he used the “NADA” large boat guide to get a general idea of the value of a particular boat. After examining the NADA and the condition report, Mr. Morley formed an opinion as to the value of the boat; specifically, he determined that “in June, July of ‘91” the average book value of the boat with trailer was $40,542 and the rough book value was $31,730. Mr. Morley never observed the boat personally, but he “spoke to people about it at length.” The fact that he did not personally observe the boat would be a factor in determining the weight of his testimony but not its admissibility. “While generally hearsay has no probative value with or without objection, it is no objection to the evidence of a witness testifying as to market value that such evidence rests on hearsay. Evidence of value is not to be excluded merely because the valuation fixed by the witness as a matter of opinion depends on hearsay, hence the testimony of the witness is not objectionable on hearsay grounds. Market value may rest wholly or in part upon hearsay, provided the witness has had an opportunity of forming a correct opinion. If it is based on hearsay this would go merely to its weight and would not be a ground for valid objections.” (Citations and punctuation omitted.) Truck Parts &c. v. Rutledge, 211 Ga. App. 166, 167-168 (2) (438 SE2d 404); compare McMillian v. Bank South, 188 Ga. App. 355 (373 SE2d 61). BVA Credit Corp. v. May, 152 Ga. App. 733 (264 SE2d 32), where the collection manager speculatively fixed a $10,000 sales price, as it “was pretty close to the balance” due on the debt and was in accordance with “a rule of thumb” of 50 percent of the value, is distinguishable and not controlling. Id. at 733-734. There exists some admissible evidence of record as to the value of the boat at time of repossession; the trial court did not err in denying appellant’s motion for directed verdict.

4. Appellant asserts the verdict was illegal being contrary to the law and the facts; specifically, appellant contends that if the jury had followed the applicable statutes of OCGA Title 11, Article 9, it could not have arrived at the announced verdict. The scenarios advanced by appellant in support of this enumeration would require this court to speculate as to the fact findings underpinning the announced verdict, including whether the jury arrived at its verdict by allowing appellant some form of setoff; this we will not do. See generally Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510); Thomas v. Clark, 188 Ga. App. 606, 608 (373 SE2d 668); Dimauro v. State, 185 Ga. App. 524, 525 (364 SE2d 900). Moreover, the verdict form pertinently states: “We, the Jury, find for the plaintiff in the amount of $12,500.” Appellant did not request special findings in this case and did not object to the verdict form. A verdict in the amount of $12,500 is not illegal on its face. By failing to object to the form of the verdict when returned by the jury, any deficiency thereto was waived. Potts v. State, 259 Ga. 96, 104 (22) (376 SE2d 851); Fort &c. Enterprises v. Scrocca, 195 Ga. App. 554, 555 (2) (394 SE2d 364). Appellant’s enumeration is without merit.

Decided December 12, 1994.

Zimmerman & Associates, Keith F. Brandon, for appellant.

Mann, Bracken, Laying & Knezo, M. Douglas Mann, for appellee.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2760.
    DOWDY v. THE STATE.
    (451 SE2d 528)
   Birdsong, Presiding Judge.

James Lee Dowdy appeals his conviction and judgment of entering an auto, involving theft of items from a truck. Held:

1. Appellant contends the trial court erred in admitting in evidence two typed confessions. He contends that under the best evidence rule (OCGA § 24-3-38) he was entitled to have the State introduce the notes made by police during the interviews, not merely the statements typed four days later. The officer who testified at the Jackson-Denno hearing stated that he and another officer, Jarrard, talked with appellant; Jarrard took notes and these notes were reduced to a typed statement. The testifying officer did not take the notes and did not know whether they were still in existence, but he reviewed the typed statements at trial and agreed they contained appellant’s verbal statements. Appellant did not call Jarrard at the Jackson-Denno hearing for examination. During trial, appellant fully cross-examined Jarrard about the existence and nature of the notes; Jarrard testified the statements were the same as his notes except that the typist changed his punctuation and spelling. Although it was shown the notes were probably in the sheriff’s office in Jarrard’s filing cabinet, appellant did not demand that they be produced.

The best evidence rule requires introduction of “[t]he best evidence which exists of a writing . . . unless its absence shall be satisfactorily accounted for.” OCGA § 24-5-4 (a). Assuming arguendo that the “best evidence” rule applies to this evidence, the absence of Jarrard’s notes was satisfactorily accounted for and explained. Moreover, the best evidence rule may be waived. See Moret v. State, 246 Ga. 5, 6 (268 SE2d 635). In this case, although the notes were shown to be accessible, appellant did not demand they be produced; even assuming there was error, he aided in causing it. He could have introduced the notes himself. Appellant may not take advantage of his own failure to demand production of the notes to bar the State from introducing the typed statements on “best evidence” grounds. See Rider v. State, 207 Ga. App. 519 (428 SE2d 423). Finally, Jarrard testified the notes were substantially the same as the typed statement and both officers testified the typed statements were the same as appellant’s verbal statement. Appellant has not shown the notes were inconsistent with the typed statements and has therefore shown no harm.

Decided December 12, 1994.

William W. Woody, for appellant.

David C. Turk III, District Attorney, for appellee.

Appellant also relies on OCGA § 24-3-38 as barring the State from introducing the typed statements without the original notes. In fact, “the whole admission and all the conversation [s] connected” to this offense (id.) were contained in the typed statements; appellant has made no showing otherwise. Appellant’s reliance on § 24-3-38 is therefore misplaced.

2. Appellant contends it was hearsay error to permit Jarrard to testify that the victim identified a truck parked at Dowdy’s home as the truck he had seen near where he had left his vehicle. The victim testified at trial and was fully available for cross-examination, so any hearsay objections were satisfied. See Cuzzort v. State, 254 Ga. 745 (334 SE2d 661).

3. Appellant complains of the trial court’s failure to charge on leniency to a co-conspirator. No written request to charge was filed, and no request for this charge was made until after the jury was charged. Generally where there is no written request to charge, failure to give the charge is not error. Bullock v. State, 202 Ga. App. 65 (1) (413 SE2d 219); see Gadson v. State, 264 Ga. 280 (444 SE2d 305).

4. The evidence is sufficient to persuade a rational trier of fact of appellant’s guilt of the crime convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A0962.
    R. T. PATTERSON FUNERAL HOME, INC. et al. v. HEAD.
    (451 SE2d 812)
   McMurray, Presiding Judge.

Plaintiff William H. Head brought this action seeking to recover damages allegedly sustained as a result of defendants’ repudiation of an oral agreement for a three-party like-kind exchange of real estate combined with a sale of corporate stock in exchange of corporate assets. Named as defendants were the corporate entities R. T. Patterson Funeral Home, Inc. (“the Company”), and Patterson-Hartsock, Inc. Also named as defendants were R. T. Patterson, Thomas I. Patterson, Claude E. Hartsock, as well as a non-party to this appeal, each “Individually and in [his or] her corporate capacity.” The multiple count complaint alleged fraud, tortious interference with contracts and business opportunities, breach of corporate fiduciary duty, and breach of contract. The complaint also sought punitive damages and OCGA § 13-6-11 expenses of litigation. Defendants answered, denying the existence of an agreement, and further claiming that any oral agreement to transfer real property was unenforceable because it was not in writing as required by OCGA § 13-5-30 (4), the Statute of Frauds.

The case was tried before a jury on theories of fraud and breach of contract. Defendants adduced no witnesses. Viewed in the light to uphold the jury’s verdicts, plaintiff’s evidence showed the following: The Company “operates [two] funeral homes . . .” in Gwinnett County, Georgia: the Lilburn Chapel and the Norcross Chapel. Since 1977, plaintiff has been a 40 percent shareholder in the Company and “the funeral director in charge of the Lilburn Chapel.” Defendant R. T. Patterson owns the remaining 60 percent and is the Company’s president. R. T. Patterson also is the sole shareholder of defendant Patterson-Hartsock, Inc., a corporation he formed “to manage real estate^]” The other individual defendants are relatives of R. T. Patterson and are officers and directors of the Company and PattersonHartsock, Inc. R. T. Patterson funded an irrevocable trust which owns the real property where the Company operates the Lilburn and Norcross Chapels. R. T. Patterson “calls the shots on all [three] entities: R. T. Patterson Funeral Home, Inc., Patterson-Hartsock, Inc., and the trust. . . .” If R. T. Patterson “wanted [the trust realty] to be conveyed, it would be conveyed . . . ,” even though only his children are the co-trustees.

In February 1990, plaintiff approached R. T. Patterson and expressed an interest in purchasing the Lilburn Chapel portion of the business and the real estate. R. T. Patterson “said at that time that he would sell [plaintiff] the Lilburn Chapel but [that plaintiff] would have to buy [R. T. Patterson] something to exchange. . . . [R. T. Patterson] said he wanted Tim Stewart’s funeral home at Duluth, and [plaintiff], in turn, asked had [R. T. Patterson] spoken with Tim and he had, and [R. T. Patterson gave me a figure [. . . of eight] hundred and fifty thousand dollars ($850,000.00).” Plaintiff thereafter contacted Timothy L. Stewart and “worked an agreement with him whereby [Timothy L. Stewart] could net eight hundred thousand dollars out of the . . . exchange and [plaintiff] would pay in turn all of the legal costs involved with facilitating that agreement.”

On April 15, 1990, a meeting of the parties was held, attended by Timothy L. Stewart’s tax accountant, Rex A. Millsaps, Sr., and William G. Tanner, Esq., “a neutral, non-biased attorney to handle the paperwork. . . .” There, R. T. Patterson agreed to a sale and exchange of plaintiff’s 40 percent interest in the Company in return for the inventory and assets of the Lilburn Chapel as the first step in plaintiff’s leaving the Company and establishing his own funeral home. As to the second step in the overall transaction, plaintiff affirmed that “[he], Mr. [R. T.] Patterson and Mr. [Tim] Stewart [orally] reached an agreement where [a] swap of the funeral home would occur [. . . with the] clear understanding that [he was] going to end up with the Lilburn Chapelf.]” The parties stipulated to a value of $800,000 for each of the three properties to be exchanged: The Lilburn Chapel going to plaintiff, Tim Stewart’s Duluth funeral home going to R. T. Patterson, and a new funeral home in Winder, Georgia, going to Tim Stewart. The Winder funeral home was to be constructed with the proceeds of a loan plaintiff would be obligated to repay.

The three-way like-kind exchange of properties was intended to qualify for non-recognition of taxable gain pursuant to § 1031 of the Internal Revenue Code. This second step was memorialized in the “Escrow and Exchange Agreement” which R. T. Patterson refused to sign. Plaintiff explained that the Stock Purchase Agreement and the “Escrow and Exchange Agreement” together made one “overall agreement with two dependent parts,” and confirmed that, “if there had not been an agreement in [his mind] on the real estate transaction, [he would never have] signed the June 25 [1990] stock purchase agreement.” Plaintiff only agreed “to the terms and provisions of the stock purchase agreement in reliance upon the representations of Mr. [R. T.] Patterson and the Patterson group that [he was] going to get the Lilburn Chapel[.]” Defendant R. T. Patterson also affirmed that the written Stock Purchase Agreement (which he did sign) exchanged plaintiff’s 40 percent interest in the Company for the bulk of the assets at the Lilburn Chapel, because those assets “were going to stay in the Lilburn Chapel with [plaintiff] once he took ownership. . . .” The stock agreement also contained a provision whereby plaintiff would pay R. T. Patterson approximately $59,000, which sum represented “the difference between the business volume at the [Norcross and Lilburn] chapels.” According to the tax accountant, Mr. Millsaps, the division of Company personal property in the 60 to 40 percent ratio of ownership had to be a separate transaction from the exchange of real property. “It couldn’t be done as one transaction and maintain a tax free status, it had to be two separate transactions.” Timothy L. Stewart, a party to the like-kind exchange, “left the [April 15, 1990,] meeting at Mr. Millsaps’ office, [thinking] the deal was going through. . . . [Stewart] did not hear anything [to the contrary] from either party until [June 28, 1990, when, unbeknownst to plaintiff,] Mr. Thomas [L] Patterson met [Timothy L. Stewart] and told [him] the [three-way] deal was off.” Instead, Thomas I. Patterson made a separate offer to buy Stewart’s Duluth funeral home for $500,000. Stewart informed plaintiff of this event.

When plaintiff and defendants met again at 5:00 p.m. on June 30, 1990, apparently to execute the three-way “Escrow and Sales Agreement,” Thomas I. Patterson “advised [plaintiff] that they were ready for [him] to sign [his] stock over.” Plaintiff declined, “because they had cancelled the real estate exchange with Stewart and [him]self.” Thomas I. Patterson informed plaintiff that the Lilburn Chapel was for sale, but insisted for the first time that the price was “one point two million dollars. . . .” As plaintiff left, he reiterated his refusal to perform the stock sale without the transfer of the business. Then, “Thomas [L] Patterson said, ‘Well, you can talk to our attorney.’ [Plaintiff’s] comment was, ‘You know where I will be,’ [and Thomas I. Patterson’s reply] was, ‘You won’t be at the funeral home. . . .” Plaintiff “took that to mean that [he] wasn’t welcome, that [he] would not be there [. . . so he] had all [his] personal effects [moved] out of the funeral home.”

R. T. Patterson confirmed that he “approve [d] and ratified] what Thomas [I. Patterson] said to [plaintiff . . .]” at the June 30, 1990, meeting and that he had earlier authorized and ratified Thomas I. Patterson’s approach to Tim Stewart with a separate offer to buy Stewart’s Duluth funeral home for $500,000, after plaintiff had signed the stock agreement but before R. T. Patterson signed any real estate agreement or informed plaintiff that he would not go through with the planned like-kind exchange. Other evidence further indicating that R. T. Patterson never intended to follow through with the agreed-upon transfer of the Lilburn Chapel portion of the Company’s business but “concocted all this just to get [plaintiff’s] stock[,]” was that he had registered and reserved the trade name “Lilburn Chapel” in his own name on April 12, 1990. In “April of 1990,” three weeks after Easter Sunday, Thomas I. Patterson began soliciting Stanley Powell to work for the Company to operate “the two chapels that they owned . . . ,” which Mr. Powell recognized as the Norcross Chapel and the Lilburn Chapel. Before the 5:00 p.m. meeting of June 30, 1990, defendants had already prepared a notice, also dated June 30, 1990, of a special meeting of the directors and shareholders of the Company, “called for the purpose of removal and election of officers and transactions of other such business. . . .” The next day, July 1, 1990, “[t]hey fired [plaintiff’s] son-in-law.” Also on July 1, 1990, R. T. Patterson wrote to the Company notifying it that “it has become necessary to increase the monthly rental amounts for the two funeral homes ... [in the total amount of $10,000 per month, . . . effective] August 1, 1990.”

In support of his contention that his part performance rendered the oral agreement enforceable pursuant to OCGA § 13-5-31 (3), plaintiff showed that he was prepared to tender his shares concurrently with the real estate exchange, that he negotiated a loan commitment from the Bank of Gwinnett County via the Small Business Administration for $876,400 using “legal descriptions of the cemetery and the funeral home property . . .” furnished to him for that purpose by R. T. Patterson; and that a survey and an appraisal of the Lilburn property were performed to get the loan approved. Plaintiff performed those “Conditions As To Closing” itemized in the Stock Purchase Agreement, such as paying for “supplies, inventory and other items that have been ordered for the Lilburn Chapel under the R. T. Patterson Funeral Home, Inc. account. . . He “cease[d] using any accounts of [R. T. Patterson Funeral Home, Inc.]” and arranged for a different telephone number to be installed at the Lilburn Chapel. However, R. T. Patterson’s son “Thomas told the telephone company not to install [plaintiff’s] number. . . .”

The jury returned a special verdict for plaintiff against specified defendants for both breach of contract and for fraud. The jury awarded no punitive damages but did award the expenses of litigation. The damages awarded for breach of contract are identical to those awarded for fraud, namely one year’s lost profits from the scuttled deal. After the entry of judgment, defendants moved for judgment n.o.v. The trial court denied the motion and this appeal followed. In five related enumerations, defendants complain of the denial of their collective motion for judgment n.o.v. Held:

1. In their first enumeration, defendants contend the trial court erred in denying their motion for summary judgment and their motion for directed verdict as to Count 1 of the complaint, alleging fraud.

(a) Once a case has been submitted to the jury and a judgment rendered on its verdict, the denial of a summary judgment motion is a moot issue. White v. Lance H. Herndon, Inc., 203 Ga. App. 580 (1) (417 SE2d 383).

(b) “If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a). Plaintiff’s claim of fraud is supported by the evidence showing that R. T. Patterson falsely promised to exchange the Lilburn Chapel, including the realty, for plaintiff’s 40 percent interest in the Company, knowing that he never intended to keep that promise. Instead, R. T. Patterson attempted to obtain Timothy L. Stewart’s Duluth property for himself while depressing the value of plaintiff’s 40 percent interest in the Company, in that he artificially inflated Company expenses by unilaterally increasing the rent the Company must pay to the real estate management company he controlled, Patterson-Hartsock, Inc. “Concealment per se amounts to actual fraud when from any reason one party has a right to expect full communication of the facts from another.” Morris v. Johnstone, 172 Ga. 598, 605 (158 SE 308). Defendants contend the trial court erred in denying their motion for directed verdict, arguing that, since the oral agreement for the transfer of an interest in land is unenforceable at the outset, there can be no reasonable detrimental reliance upon such a promise. See Adamson v. Maddox, 111 Ga. App. 533, 535 (3) (142 SE2d 313). Specifically, they argue on appeal that plaintiff’s part performance were merely acts “in preparation of the transaction, not in furtherance of it [or] essential to it [. . . and, in] a real estate transaction, the cases hold that only possession of the land itself can amount to the requisite partial performance described in OCGA § 13-5-31.”

OCGA § 13-5-31 (3) provides: “The provisions of Code Section 13-5-30[, the Statute of Frauds,] do not extend to . . . cases: . . . [w]here there has been such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance.” This language is to be contrasted with that of OCGA § 23-2-131: “The specific performance of a parol contract as to land shall be decreed if the defendant admits the contract or if the contract has been so far executed by the party seeking relief and at the instance or by the inducements of the other party that if the contract were abandoned he could not be restored to his former position. . . . Full payment alone accepted by the vendor, or partial payment accompanied by possession, or possession alone with valuable improvements, if clearly proved in each case to have been done with reference to the parol contract, shall be sufficient part performance to justify a decree.”

“It is contended by the defendant^] that the contract is not taken out of the statute of frauds for the reason that the plaintiff was not in possession of the property. As we understand the law, this rule applies to cases in equity for specific performance or damages in lieu thereof, and not to actions at law for damages for breach of contract. Code [Ann.] § 37-802 [now 23-2-131 (b)], applies only to actions for specific performance or damages in lieu thereof, in equity. . . . See McLeod v. Hendry, 126 Ga. 167 (54 SE 949); Woodall v. Williams, 176 Ga. 343 (167 SE 886).” Moore v. Deal, 75 Ga. App. 823, 827 (4), 828 (44 SE2d 571). See also Warren v. Camp, 232 Ga. 681, 682 (1) (208 SE2d 489); Taylor v. Cureton, 196 Ga. 28 (2) (25 SE2d 815). In the case sub judice, plaintiff did not seek the equitable remedy of specific performance nor damages in lieu of title to the Lilburn real property, valued at either $800,000 or $1,200,000. Rather, plaintiff sought only money damages and only for one year’s anticipated profit, traveling under theories of fraud and breach of contract. Consequently, the fact that plaintiff never had exclusive possession of the Lilburn Chapel (after being essentially ousted by Thomas I. Patterson and fired by the board of directors) does not demonstrate that his actions were, as a matter of law, insufficient partial performance within the purview of OCGA § 13-5-31 (3). The trial court did not err in failing to direct a verdict as to plaintiff’s claim of fraud on this ground.

Nevertheless, defendants urge that the acts plaintiff performed were merely “in preparation of the transaction, not in furtherance of it, essential to it, or beneficial to [defendants], and therefore, [are not] sufficient performance of the alleged agreement to remove it from the Statute of Frauds.”

“The part performance referred to in the Code, § 20-402 (3) [now OCGA § 13-5-31 (3)], as forming an exception to the requirements of § 20-401 [now OCGA § 13-5-30], means part performance of the contract. The doing of an independent thing, even though the act would not have been done but for the contract, is not sufficient.” Smith v. Davidson, 198 Ga. 231, 232 (3) (31 SE2d 477). “[T]he part performance shown must be consistent with the presence of a contract and inconsistent with the lack of a contract.” Hudson v. Venture Industries, 243 Ga. 116, 118 (252 SE2d 606). In the case sub judice, proof that plaintiff obtained a business license in the name of Bill Head Funeral Home, Inc. and paid to have business cards and stationery printed is proof only of acts done in anticipation of a contract, and so are not proof of plaintiff’s partial performance as contemplated by that contract. See, e.g., Cofer v. Wofford Oil Co. of Ga., 85 Ga. App. 444, 449 (3) (69 SE2d 674). However, having secured the commitment of Tim Stewart as demanded by R. T. Patterson, plaintiff’s subsequent acts in paying for the survey and appraisal, and in negotiating the successful loan application, all were essential to the three-way like-kind exchange and in performance of plaintiff’s obligations thereunder. Moreover, plaintiff’s performance of the “Conditions As To Closing” are consistent with the existence of an overarching contract for the exchange of real estate in conjunction with the sale of Company stock in exchange for the Lilburn Chapel inventory and assets and are inconsistent with the lack of such a contract. Otherwise, the stock purchase agreement made no sense without a place for plaintiff to run his business, and there is no contention that defendants intended to lease the property to plaintiff as a competitor. The existence of facts authorizing an exception to the requirement of a writing as provided by OCGA § 13-5-31 (3) need only “be established by a preponderance of the evidence.” Tidwell v. Garrick, 149 Ga. 290, 291 (2) (a) (99 SE 872). The evidence of partial performance in the case sub judice is sufficient to create a jury question whether the oral agreement to transfer an interest in land is enforceable pursuant to OCGA § 13-5-31 (3). Furthermore, that evidence of part performance is sufficient to distinguish the case sub judice from Adamson v. Maddox, 111 Ga. App. 533, 535 (3), 536, supra, and from the general rule that there is no justifiable reliance upon future promises which must be in writing to be enforceable. “The doing of the contemplated act furnishes the consideration [and mutuality] for the original agreement, even though such agreement at its inception was nudum pactum. [Cits.]” Wilson v. Whitmire, 212 Ga. 287, 290 (92 SE2d 20). Although plaintiff in the case sub judice never tendered complete performance, that is not required under the express terms of OCGA § 13-5-31 (3). “If the nonperformance of a party to a contract is caused by the conduct of the opposite party, such conduct shall excuse the other party from performance.” OCGA § 13-4-23. R. T. Patterson’s refusal to fulfill the three-way like-kind exchange rendered any further performance futile. Since there is “some evidence of . . . part performance sufficient to take the oral contract out of the [S]tatute of [F]rauds, the trial court did not err in denying [defendants’] motion [for a directed verdict] on [the] issue [of fraud]. See Rose v. O’Brien, 191 Ga. App. 36 (2) (380 SE2d 730) (1989).” Haehn v. Alheit, 212 Ga. App. 252, 254 (3) (441 SE2d 529).

2. Defendants’ second enumeration, complaining of the denial of a directed verdict with respect to plaintiff’s claim sounding in breach of contract, has been considered and is found to have been rendered moot by our disposition in Division 1.

3. Next, defendants contend the trial court erred in submitting the issue of lost profits to the jury, arguing that plaintiff’s evidence was “too speculative and remote to be admissible.”

“It is not the rule in this State that all profits are too remote and speculative to be recoverable.” Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252, 253 (2), 254 (76 SE2d 536). “ ‘It may be stated as a general rule that in tort actions a recovery may be had for loss of profits, provided their loss is the proximate result of the defendant’s wrong[,] and they can be shown with reasonable certainty. The profits recoverable in such cases are limited to probable, as distinguished from possible benefits. . . .’ [Cit.]” Norris v. Pig’n Whistle Sandwich Shop, 79 Ga. App. 369, 372 (1), 373 (53 SE2d 718). In the case sub judice, plaintiff’s evidence of anticipated profits was an extrapolation from the Company’s history of actual profits, achieved as an established business under plaintiff’s direction. This was an adequate evidentiary foundation for the jury’s award. Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252, 253 (2), supra.

4. In their fourth enumeration, defendants Patterson-Hartsock, Inc., R. T. Patterson, Claude E. Hartsock, and Thomas I. Patterson, contend the trial court erred in denying their motion for directed verdict. They first argue that the “only evidence that R. T. Patterson was personally liable for fraud or breach of contract was his [own] testimony that he ‘called the shots’ in the corporation and the trust [which owned the real property at issue].” However, the evidence was sufficient to authorize the conclusion that R. T. Patterson personally engaged in a campaign to relieve plaintiff of the value of his interest in the Company by fraudulently promising to trade the Lilburn Chapel land and business, with the present intent never to fulfill that promise.

Next, defendants Thomas I. Patterson, Claude E. Hartsock, and Patterson-Hartsock, Inc. argue that “[t]here was no evidence that any of the [Defendants] acted in such a manner as to expose themselves to personal liability. The only claimed evidence was that they failed to notify [Plaintiff] that there was no agreement. ...”

Thomas I. Patterson participated in the ongoing deception by surreptitiously negotiating directly with Timothy L. Stewart at the direction of R. T. Patterson, after the three-way like-kind exchange agreement already had been reached. The trial court did not err in refusing to direct the verdict as to him. However, with respect to Claude E. Hartsock and the real estate management company Patterson-Hartsock, Inc., there is no evidence of participation in or perpetuation of the fraudulent promise to trade the Lilburn Chapel land along with the business, in exchange for cash and plaintiff’s shares in the Company. Moreover, Claude E. Hartsock and Patterson-Hart-sock, Inc. are not parties to the oral agreement and could not be liable for any breach thereof. Consequently, the trial court erred in failing to direct the verdict as to them.

5. Lastly, defendants enumerate the denial of their motion for directed verdict as to plaintiff’s claim for OCGA § 13-6-11 attorney fees, arguing that counsel “failed to apportion his time between the six counts of his Complaint,” relying on Southern Cellular Telecom v. Banks, 209 Ga. App. 401 (433 SE2d 606).

Plaintiff’s counsel expressly excluded from the calculation of time spent on the case those “attorney’s fees for the defense of [a] counterclaim [defendants had] filed.” He further testified to the reasonableness of the fee in light of the experience and abilities of the lawyers involved and considering the area of practice. The jury awarded $25,102 as OCGA § 13-6-11 expenses of litigation in addition to compensatory damages in tort (and in contract) of $99,244. Of this $25,102, “twenty-three thousand six hundred seventy-eight dollars and fifty cents ($23,678.50) . . .” represented attorney fees.

“The question of attorney fees under OCGA § 13-6-11 is a question for the jury. Brannon Enterprises v. Deaton, 159 Ga. App. 685 (285 SE2d 58) (1981). The standard of review of an award of attorney fees under OCGA § 13-6-11 is whether there is any evidence to support the award. Fuller v. Moister, 248 Ga. 287 (282 SE2d 889) (1981).” Spring Lake Property Owners Assn. v. Peacock, 260 Ga. 80, 81 (390 SE2d 31). Inasmuch as defendants Claude E. Hartsock and Patterson-Hartsock, Inc. are not liable to plaintiff for compensatory damages under either theory submitted to the jury, they cannot be held liable for OCGA § 13-6-11 attorney fees and expenses of litigation. See Russell Corp. v. BancBoston Fin. Co., 209 Ga. App. 660, 663 (6) (434 SE2d 716).

With respect to defendants R. T. Patterson and Thomas I. Patterson, “[d] espite the existence of a bona fide controversy as to liability, [the] jury [in the case sub judice was authorized to] find that defendant[s] ‘acted in the most atrocious bad faith in . . . dealing with the plaintiff.’ Powell v. Watson, 190 Ga. App. 375, 376 (378 SE2d 867) (1989). See also Ga.-Carolina Brick &c. Co. v. Brown, 153 Ga. App. 747, 750 (2) (B) (266 SE2d 531) (1980).” Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55, 62 (3), 63 (390 SE2d 55). This would authorize an award of OCGA § 13-6-11 expenses of litigation, including such attorney fees, but only such attorney fees as are attributable “solely to the prevailing claim. . . .” Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402, supra. Accordingly, the trial court did not err in denying the motion for directed verdict insofar as the motion failed to distinguish between liability vel non and the quantum of damages.

Although defendants chose not to cross-examine counsel about whether he could distinguish time spent on viable theories of liability as opposed to unsuccessful, unpersuasive, or unsupported theories, verdicts were directed as to theories of liability in tortious interference and breach of corporate fiduciary duty, and as to one party on all theories. Accordingly, this award of OCGA § 13-6-11 attorney fees must be reversed in part “and the case remanded for an evidentiary hearing to establish the amount of attorney fees attributable to [plaintiff’s prevailing claims]. See Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402, supra.” Mitcham v. Blalock, 214 Ga. App. 29, 31 (2), 33 (447 SE2d 83).

6. As to defendants Claude E. Hartsock and Patterson-Hartsock, Inc. the judgment is reversed in its entirety with direction to enter judgment in accordance with their motions for directed verdict. OCGA § 9-11-50 (e). As to defendants R. T. Patterson and Thomas I. Patterson, the judgment awarding compensatory damages in tort is affirmed. The judgment awarding OCGA § 13-6-11 attorney fees as expenses of litigation is affirmed as to liability, reversed in part as to the amount of damages, and remanded for an evidentiary hearing.

Decided December 1, 1994

Reconsideration denied December 13, 1994

Deming, Deming, Born & Parker, Paul M. Hoffman, for appellants.

Andersen, Davidson & Tate, Gerald Davidson, Jr., Larry C. Old-ham, for appellee.

Judgment affirmed in part, reversed in part, and remanded with direction.

Pope, C. J., and Smith, J., concur in the judgment only.