text:
    A92A0633.
    HORNE et al. v. EXUM.
    (419 SE2d 147)
   Johnson, Judge.

In this discretionary appeal, Junior Horne d/b/a Junior Horne Roofing asserts that the superior court erred in reversing the State Board of Workers’ Compensation’s affirmance of the award of the Administrative Law Judge (ALJ) which denied benefits to Robert Lee Exum.

It is uncontested that Exum suffered a displaced comminuted fracture of his right heel bone as a result of a fall which occurred on the job. Subsequent to this injury, Horne voluntarily paid Exum his regular weekly salary from November 30, 1989 until May 1, 1990 and had paid or agreed to pay all medical expenses incurred through the date of the hearing in superior court. The ALJ found that the employer was a partnership owned and operated by Junior Horne and Jake Horne, that they had fewer than three full-time employees and, pursuant to OCGA § 34-9-2 (a), that the partnership was not subject to the provisions of the Workers’ Compensation Act. The Full Board agreed. The superior court reversed, finding that Horne had voluntarily elected to be bound by the Act by paying Exum’s salary and medical expenses and was estopped to deny benefits.

The superior court and Exum rely on Hartford Ins. Group v. Voyles, 149 Ga. App. 517 (254 SE2d 867) (1979), in which we held that equitable estoppel was a doctrine which could, in some circumstances, be applied to workers’ compensation cases. In Hartford, we held that an employer could be bound by the Act regardless of whether valid insurance coverage existed if the worker reasonably relied on a representation that he was covered by workers’ compensation insurance. In that case, a deduction was regularly made from the employee’s pay over a period of three years for the stated purpose of contributing to workers’ compensation coverage. The employer as well as the claimant, believed that they were covered by insurance, which proved not to be the case. The court held: “It is implicit in the circumstances thát the worker relied upon the declaration that he is to be covered by workers’ compensation insurance. It would contravene any sense of justice to allow the employer to disavow his declaration that the worker is covered by this insurance.” Id. at 520.

The essential elements of equitable estoppel are set forth in Bell v. Studdard, 220 Ga. 756, 760 (4) (141 SE2d 536) (1965). A party asserting estoppel must establish “(1) conduct amounting to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intention, or at least expectation, that such conduct shall be acted upon by the other party; (3) knowledge, actual or constructive, of the real facts; and, as to the party claiming the estoppel: (1) lack of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) action based thereon of such a character as to change his position prejudicially.” Id. .at 760. In this case there were no findings made by the ALJ and there is no evidence in the record which establishes that Exum was ever told or led in any way to believe that he was covered by workers’ compensation. Furthermore, there is no evidence that Exum did or failed to do anything which would have prejudiced his position. “Estoppel to be good must be reciprocal. . . Estoppels are not favored at law and in no case can the doctrine be invoked save where the estoppel is mutual.” (Citations and punctuation omitted.) Lott v. Ace Post Co., 175 Ga. App. 196, 197 (332 SE2d 676) (1985).

“ ‘The superior court is not authorized to substitute its judgment for that of the Full Board. (Cit.) The superior court is authorized to reverse an award of the Full Board only when there is plain error of fact or an error purely of law. (Cit.)’ [Cit.]” Selfridge v. Morrison Cafeteria Co., 192 Ga. App. 469, 470 (1) (385 SE2d 137) (1989). It cannot be extrapolated from the fact that Horne made voluntary payments to Exum after the injury that he voluntarily elected to bring himself under the broad provisions of the Act under the theory of equitable estoppel or any other theory. Therefore the superior court’s order must be reversed, and the order of the Full Board reinstated. To hold otherwise would not only be unfair to employers who find themselves in Horne’s situation by blindsiding them when they were attempting to do the right thing by an injured employee, but would discourage such employers from making voluntary payments in any case where they were under no legal obligation to do so.

Decided May 22, 1992.

Langdale, Vallotton, Chapman & Linahan, J. Bennett Threlkeld, for appellants.

The Ellerbee Law Firm, 0. Wayne Ellerbee, for appellee.

Judgment reversed.

Carley, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Carley, Presiding Judge.

license: Public Domain

text:
    A92A0122.
    PEACOCK et al. v. RAPID GROUP, INC.
    (419 SE2d 61)
   Carley, Presiding Judge.

Appellant-plaintiff Robin Denise Peacock was injured in an automobile collision while driving her employer’s vehicle. She thereafter submitted no-fault claims to both appellee-defendant Rapid Group, Inc. (RGI), her employer’s no-fault carrier, and appellant-plaintiff Southern General Insurance Company (SGIC), her own personal no-fault carrier. Neither the RGI nor the SGIC policy afforded an insured more than the mandatory minimum no-fault coverage of $5,000. See former OCGA § 33-34-4 (a) (2). RGI refused to pay Peacock any no-fault benefits, but SGIC paid her the full $5,000 for her medical expenses and loss of income. Subsequently, the instant suit was brought against RGI, SGIC seeking to recover the no-fault benefits that it had paid Peacock and Peacock seeking to recover a bad-faith penalty, attorney’s fees, and punitive damages under former OCGA § 33-34-6 (b, c). A motion for partial summary judgment on the issue of RGI’s liability for Peacock’s no-fault benefits was granted and the case proceeded to trial on the issue of RGI’s liability for a bad faith penalty, attorney’s fees, and punitive damages. At the close of SGIC’s and Peacock’s evidence, RGI moved for a directed verdict. The trial court granted RGI’s motion but, pursuant to its earlier grant of summary judgment, awarded no-fault benefits and attorney’s fees to SGIC. Both SGIC and Peacock appeal.

1. Having paid no-fault benefits to Peacock, SGIC sought to recover against RGI under the doctrine of equitable subrogation. SGIC urges that, under this doctrine, it would be entitled to recover a penalty, attorney’s fees and punitive damages from RGI and that it was error to grant RGI’s motion for directed verdict as against such a recovery. However, “[w]ith but two exceptions, neither of which is applicable here, subrogation as to no-fault benefits is prohibited. [Cit.] Thus, to [apply equitable subrogation] would be to countenance the indirect accomplishment of that which the law expressly prohibits from being accomplished directly.” (Emphasis supplied.) National Surety Corp. v. McDonnell, 194 Ga. App. 597, 598 (1) (391 SE2d 424) (1990). See former OCGA § 33-34-3 (d) (1).

Therefore, the trial court did err, but that error was not in granting RGBs motion for a directed verdict as against SGIC. The error was in awarding SGIC no-fault benefits and attorney’s fees to which SGIC was not entitled. SGIC has no cause for complaint that the trial court did not compound this error. By granting RGBs motion for directed verdict, the trial court correctly precluded SGIC from any additional unauthorized recovery against RGI.

2. Peacock had no viable claim for no-fault benefits from RGI. She had already received $5,000 in no-fault benefits from SGIC and she had “no viable claim for PIP benefits in excess of [$5,000] simply because [RGI] may have been the primary no-fault [carrier] and it was [RGI], rather than [SGIC], that would have been obligated for the entirety of the [$5,000] in PIP benefits which she was otherwise entitled to receive. [Cit.]” National Surety Corp. v. McDonnell, supra at 598 (1).

Nevertheless, “ ‘(a) consideration of (RGBs) liability under [former] OCGA § 33-34-6 is not precluded by (SGIC’s) eventual payment of no-fault benefits to (Peacock) and by (her) acceptance of those benefits.’ [Cit.] If, notwithstanding (its) purported status as the primary no-fault [carrier], [RGI is] otherwise entitled to claim the benefit of the payments which were made [to Peacock] by [SGIC], [it] must also bear the legal consequences if those payments were made untimely.” (Emphasis supplied.) National Surety Corp. v. McDonnell, supra at 598-599 (3).

“In regard to [Peacock’s] claim for medical bills, the record is . . . clear that [she] received payment [from SGIC] within 30 days [of submission of her claim to RGI] for all medical bills submitted to [RGI]. . . .” (Emphasis supplied.) Strickland v. American Home Assur. Co., 186 Ga. App. 425, 427 (367 SE2d 241) (1988). Accordingly, Peacock has no claim under former OCGA § 33-34-6 (b, c) based upon the payment of no-fault benefits for her medical bills.

However, Peacock did not receive payment from SGIC for any of her lost income until more than 60 days after submission to RGI of her claim. Although RGI cannot be held liable for penalties or punitive damages under former OCGA § 33-34-6 (b, c) as to any benefits which were timely paid by SGIC, as to that portion of Peacock’s claim for loss of income for which payment was untimely, RGI has not met its burden of proving that “its delay in paying [Peacock’s] claim ‘was attributable to (Peacock’s) failure to submit reasonable proof in support of that claim rather than to bad faith on the part of [RGI].’ [Cit.]” Hufstetler v. Intl. Indem. Co., 183 Ga. App. 606, 609-610 (2) (359 SE2d 399) (1987). Although RGI had received sufficient documentation to know that a claim was being made, RGI produced no evidence that it took any sort of action to verify or disprove, by any means, the basic components of Peacock’s claim. Moreover, the evidence shows that RGI never notified Peacock that further proof was needed. “Whether [RGI] acted in bad faith was an issue for the jury to decide.” Insurance Co. of North Amer. v. Smith, 189 Ga. App. 353, 355 (1) (375 SE2d 866) (1988). See also Hufstetler v. Intl. Indem. Co., supra at 608-609 (2); State Farm Mut. Auto. Ins. Co. v. Ainsworth, 198 Ga. App. 740, 747 (3) (402 SE2d 759) (1991).

Decided April 30, 1992

Reconsiderations denied May 27, 1992.

Sutton & McCreary, Richard C. Sutton, Wetzel & Associates, Michael L. Wetzel, for appellants.

William V. Hall, Jr., for appellee.

Therefore, the trial court erred in directing a verdict on the issue of Peacock’s entitlement to recover a penalty, attorney’s fees, and punitive damages from RGI based upon the alleged untimely payment of benefits for lost income. Remaining grounds which were not urged below in support of the trial court’s grant of RGI’s motion for a directed verdict will not be considered on appeal. Grabowski v. Radiology Assoc., 181 Ga. App. 298, 299 (2) (352 SE2d 185) (1986).

3. The trial court’s grant of RGBs motion for directed verdict as to SGIC’s additional recovery is affirmed. The trial court’s grant of RGBs motion for directed verdict as to Peacock’s recovery of a penalty, attorney’s fees, and punitive damages based upon untimely payment of no-fault benefits for medical bills is affirmed. The trial court’s grant of RGBs motion for directed verdict as to Peacock’s recovery of a penalty, attorney’s fees, and punitive damages based upon the untimely payment of no-fault benefits for lost income is reversed.

Judgments affirmed in part and reversed in part.

Pope and Johnson, JJ., concur.


author: Pope, Judge.

text:
    A92A0552.
    JAMISON et al. v. BUTTON GWINNETT SAVINGS BANK, FSB.
    (419 SE2d 91)
   Pope, Judge.

Appellants/plaintiffs David K. Jamison and E. K. Jamison purchased land in Fulton County and built a house on it. Financing for the lot and construction of the house was provided by appellee/defendant Button Gwinnett Savings Bank, FSB (the “bank”). Plaintiffs executed in favor of and delivered to the bank a promissory note (the “note”) in the original principal amount of $434,000, which was secured by a deed to secure debt and security agreement (the “security deed”). The note and security deed were later modified. Plaintiffs subsequently defaulted on payments due pursuant to the note. The bank then accelerated the maturity of the note and declared the principal balance, accrued interest and late charges due. The bank did not seek to foreclose against the property.

Plaintiffs filed a complaint against the bank and certain other defendants. In the complaint, plaintiffs sought declaratory relief against the bank asking the trial court to declare that the bank’s remedy, if any, against the plaintiffs was to foreclose against the subject property. The bank counterclaimed against the plaintiffs for the amount owing under the note. The bank also filed a motion for summary judgment on its counterclaim and motion to be dismissed as a defendant. The trial court granted both motions and plaintiffs appeal. The bank filed a motion pursuant to OCGA § 5-6-6 seeking to have this court award it damages against plaintiffs in an amount equal to ten percent of the judgment on the basis that this appeal was filed for delay only.

1. We hold that the trial court correctly granted the bank’s motion for summary judgment and motion to be dismissed as a party. The law of this state is well-settled that “[t]he holder of a note who is also the grantee in a deed to secure the indebtedness of the note is not forced to exercise the power of sale in the deed. He may sue on the note or exercise the power of sale. [Cits.]” Trust Investment &c. v. First Ga. Bank, 238 Ga. 309, 310 (1) (232 SE2d 828) (1977). We have reviewed the note and security deed and find nothing in those documents to support plaintiffs’ contention that the bank was required to foreclose on the property first.

2. It does not appear that there was any valid reason for plaintiffs to anticipate reversal of the trial court’s judgment. Plaintiffs attempted to distinguish this case from the Trust Investment decision and its progeny by insisting that there are special circumstances in this case, but plaintiffs failed to point out what those circumstances are. We conclude that this appeal was brought only for purposes of delay. Accordingly, we grant the bank’s motion for ten percent damages for frivolous appeal pursuant to OCGA § 5-6-6. See Covrig v. Miller, 199 Ga. App. 864 (4) (406 SE2d 239) (1991); United Controls v. Alpha Systems, 195 Ga. App. 331 (393 SE2d 694) (1990). The clerk is directed to enter ten percent damages upon the remittitur.

Judgment affirmed with direction.

Carley, P. J., and Johnson, J., concur.

Decided May 7, 1992

Reconsideration denied May 27, 1992.

Greer, Klosik & Daugherty, Frank J. Klosik, Jr., Jeffrey F. Leasendale, for appellants.

Schreeder, Wheeler & Flint, Warren 0. Wheeler, Debra A. Wilson, for appellee.

On Motion for Reconsideration.

On motion for reconsideration, plaintiffs urge that both the trial court and this court have failed to address the principal issue in this case, i.e., that there are special circumstances existing in this case that justify an exception to the general rule stated in Trust Investment &c. v. First Ga. Bank, 238 Ga. 309 (232 SE2d 828) (1977). As we noted in the original opinion, however, although plaintiffs have consistently argued there are “special circumstances” existing in this case, they have failed to specify what these special circumstances are.

Plaintiffs also urge that an award of ten percent damages for frivolous appeal is inappropriate in this case because their action against defendant was for declaratory relief. If the judgment rendered by the trial court only dealt with plaintiffs’ claim against the defendant their argument would be meritorious. In this case, however, the bank counterclaimed against plaintiffs for the amount owing under the note. In the final judgment in this case, the trial court not only granted defendant’s motion for summary judgment as to plaintiffs’ claim against it, but also granted defendant summary judgment on its counterclaim against plaintiffs for the amount owing under the note in total amount of $509,428.28. That award was clearly a sum certain within the meaning of OCGA § 5-6-6.

Motion for reconsideration denied.


author: Johnson, Judge.

text:
    A92A0665.
    WILLIAMS v. ATLANTA FAMILY RESTAURANTS, INC.
    (419 SE2d 328)
   Johnson, Judge.

Amber Noel Williams (Williams) appeals the denial of her claim for workers’ compensation benefits for injuries which she alleges arose out of and were sustained in the course of her employment with Atlanta Family Restaurants, Inc. (AFR). The issues in this case were first heard by an administrative law judge who found Williams’ claim not to be compensable. On appeal, the State Board of Workers’ Compensation affirmed the denial of benefits. The Superior Court of Banks County affirmed the Board’s decision by operation of law. This is a discretionary appeal granted pursuant to OCGA § 5-6-35.

Following a hearing, the administrative law judge made the following findings of fact. Williams went to Commerce, Georgia, to assist in the training of waitresses for a new Shoney’s restaurant owned by AFR. She was housed at the Econo Lodge motel along with several other members of the training staff. After working for several days, she and some other employees decided that their uniforms needed washing. The supervisory personnel were staying at a Holiday Inn motel nearby which had laundry facilities. It was decided that while the laundry was being done, all of the employees would have something to eat and drink at the lounge at the Holiday Inn. There was a live band playing at the lounge and it is uncontroverted that everyone was drinking. At approximately 11:00 p.m., Williams’ roommate informed her that the laundry was finished and that she was returning to the Econo Lodge. Williams had met some people not associated with AFR and decided not to accompany her, but to stay and dance. Later in the evening, prior to retiring, Williams’ supervisors offered to give her a ride back to her motel. She again refused, stating that she preferred to remain with her new friends who would drive her back to the motel. Williams left the Holiday Inn around midnight with a woman and three men whom she had met in the lounge. After dropping off the only other woman in the group and her boyfriend, Williams was taken down a dirt road, raped and sodomized by the remaining two men.

In denying Williams’ claim for benefits, the administrative law judge found that Williams “stepped aside from her job” at the time she refused her supervisors’ offer of a ride and had “embarked on a personal mission unrelated to her job.” (Order of Judge Stargel dated April 2, 1991, paragraph [2]). We agree.

Williams’ three enumerations of error address the same issue, that the State Board erred in failing to find that her injuries arose out of and in the course of her employment. “To be compensable under workers’ compensation, an injury or death of an employee must be one ‘arising out of’ and ‘in the course of’ the employment. OCGA § 34-9-1 (4). These two terms are not synonymous. [Cit.] An injury or death ‘arises out of employment’ when it is apparent to the rational mind, upon consideration of all the circumstances, that there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. [Cit.] ‘In the course of’ employment ‘refers to time, place and circumstances under which the accident took place. . . .’ [Cit.]” Blair v. Ga. Baptist &c., 189 Ga. App. 579, 580-581 (377 SE2d 21) (1988). “An accident ‘arises in the course of the employment’ within the meaning of the compensation Act when it occurs within the period of employment at a place where the employee reasonably may be in the performance of his duties while he is fulfilling his duties or engaged in doing something incidental thereto.” Barge v. City of College Park, 148 Ga. App. 480, 481 (1) (251 SE2d 580) (1978). The courts of this state, in effectuating the humane purposes for which the Workers’ Compensation Act was enacted, have taken a broad view in evaluating those activities which are incidental to employment, particularly in those cases which require employees to travel away from home.

Williams argues that this case is “incredibly similar” to McDonald v. State Hwy. Dept., 127 Ga. App. 171 (192 SE2d 919) (1972). In McDonald, the employee was required to stay in a hotel while working at an out-of-town job site. After an evening of playing poker and drinking with fellow employees and having a final drink in the hotel lounge, McDonald fell down a flight of stairs on his way back to his room. The fall resulted in injuries which caused his death. Although not engaged in sales, this court likened his employment situation to that of a traveling salesman. “ ‘By the very nature of his work, a traveling salesman is not usually restricted to working on a schedule of hours. His employment is broader in scope than that of ordinary employees, his hours are more irregular, and usually longer, than those of general employees working in a fixed location. ... He must of necessity eat and sleep in various places in order to further the business of his employer . . . The eating of meals, while a pleasure indulged in by a traveling salesman and all mankind, is as necessary to the continuance of his duties as the breath of life; and where his duties take him away from his home, his acts of ministration to himself should not and we believe do not take him outside the scope of his employment, so long as he performs these acts in a normal and prudent manner.’ ” Id. at 173-174.

Our examination must focus on the operative phrase: “in a normal and prudent manner.” The McDonald case is particularly helpful to us because in that case and the case presently before us, the claimants had consumed alcoholic beverages. The court in that case was not troubled by the fact that the claimant had been drinking as it is not an illegal activity, and there was no showing that it was a causative factor in his fall. McDonald was walking back to his room at the time the accident occurred. He had not left the premises. That distinction alone is not dispositive and the court specifically noted that a travelling employee could not reasonably be expected to be confined to his own room. Nonetheless, Williams was a 22-year-old woman staying in a strange town. By her own admission, she had consumed five drinks. After refusing two rides back to her motel from her co-employees, she entrusted her safety to people who she had met only that evening. In these circumstances, we cannot find that the decisions made by Williams with regard to her own safety were normal or prudent.

Decided May 15, 1992

Reconsideration denied May 27, 1992

Byars & Slappey, E. Scott Slappey, for appellant.

Sligh, Presmanes & Jackson, Gregory T. Presmanes, James G. Jackson, for appellee.

“While lodging in a hotel or preparing to eat, or while going to or returning from a meal, he is performing an act incident to his employment, unless he steps aside from his employment for personal reasons.” (Emphasis supplied.) Thornton v. Hartford Accident &c. Co., 198 Ga. 786 (32 SE2d 816) (1945). In this case, when Williams declined the offered rides back to her motel and chose to remain “to finish her drink and dance” she stepped aside from her employment. We concur with the findings of the administrative law judge who noted that Williams left even the expanded scope of employment recognized by the courts of this state for travelling employees at that point and relieved her employer of any responsibility under workers’ compensation for her own injury.

“Upon appeal, the evidence will be construed in a light most favorable to the party prevailing before the board, and every reasonable factual inference and presumption of validity of award should be indulged in by the reviewing court.” Harper v. L & M Granite Co., 197 Ga. App. 157, 159 (2) (a) (397 SE2d 739) (1990).

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0398.
    BARTON v. MARUBENI AMERICA CORPORATION.
    (419 SE2d 342)
   Pope, Judge.

Plaintiff Marubeni America Corporation filed an action against defendant Walter F. Barton to collect payment on an overdue real estate note. The note, dated December 23, 1986, was in the amount of over $2.3 million with a maturity date of November 22, 1989. Defendant answered and admitted that the note remained unpaid but denied the note was in default. Defendant raised several affirmative defenses, including estoppel, failure of consideration, waiver, usury, and the claim that plaintiff was not entitled to recover on the grounds of fraudulent inducement, violation of fiduciary duty and because plaintiff exercised dominion and control over the property which secured the note. The trial court granted plaintiff’s motion for summary judgment and defendant appeals.

Defendant argues plaintiff is not entitled to summary judgment because it did not pierce or even address all of defendant’s affirmative defenses and, therefore, issues remain for jury determination. Our review of the record reveals that each and every defense was refuted by the evidence. We agree with the trial court that summary judgment is appropriate in this case because plaintiff showed the “evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

The record shows the loan was made to defendant and he used the money to purchase the property secured by the note. Thus, no issue exists as to defendant’s claim of failure of consideration. The record contains no evidence that plaintiff waived its right to collect the sum due pursuant to the note and in fact indicates the plaintiff pursued collection on the note before suit was filed. Defendant may not prevail on his claim of usury because the amount of the note is outside the provisions of Georgia’s usury statute. See OCGA § 7-4-2 (a) (1) (B). Defendant’s claim that plaintiff is barred from recovering because plaintiff has exercised dominion or control of the secured property is belied by defendant’s own testimony that the property is titled in his name and that he has continued to market the property, though to no avail.

Defendant also claims plaintiff is estopped from enforcing the maturity date of the note and is precluded from recovering because he was fraudulently induced into believing that the maturity date would not be enforced if the property had not been sold by that date. At his deposition, however, defendant could not identify the person who made such representations to him, merely saying that the agreement about the maturity date was understood by all representatives of the plaintiff. This testimony is insufficient to modify the clear and unambiguous terms of the written note. OCGA § 24-6-2 permits parol evidence of collateral undertakings between the parties only when the writing does not purport to contain all the stipulations of the contract and only when such evidence is not inconsistent with the writing. In this case, defendant’s testimony that the maturity date was waived by parol agreement is directly inconsistent with the certain and unambiguous maturity date stipulated in the written note. Moreover, the general rule prohibiting parol evidence may not be avoided on the theory of a confidential or fiduciary relationship between the parties. Richards v. First Union Nat. Bank, 199 Ga. App. 636 (405 SE2d 705) (1991).

Defendant’s remaining claim is based on his theory that the relationship between the parties is not that of debtor/creditor but partners in the venture to purchase the property which secures the note and resell it for a profit. This theory is based on the fact that, in addition to interest of a stated amount, the note granted plaintiff the right to share in any profits which might be realized upon sale of the property. The terms of contract granting a party the right to profits is not evidence, however, that a partnership, as opposed to a debtor/ creditor relationship, existed between the parties. See OCGA § 14-8-7 (4) (E).

Decided May 27, 1992.

Chestnut & Livingston, Tom Pye, for appellant.

Troutman, Sanders, Lockerman & Ashmore, William T. Plybon, Jule J. Kreyling, for appellee.

Because the record contains evidence refuting each and every theory of defense raised by the defendant and contains unrefuted evidence in support of plaintiff’s claim, the trial court did not err in granting summary judgment to plaintiff.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


author: Beasley, Judge.

text:
    A92A0533.
    WALLS et al. v. THE STATE.
    (419 SE2d 344)
   Beasley, Judge.

Walls and Claude appeal from their judgments of conviction and sentence following denial of their joint motion for new trial. The motion was filed beyond the time statutorily provided. OCGA § 5-5-40 (a). However, this was with permission of the court, apparently for the reason that new counsel was not appointed for post-conviction proceedings until after 30 days had elapsed. The motion was an extraordinary motion, allowed under OCGA § 5-5-41. A direct appeal is authorized, because it is not separate from the original appeal. If it had been, an application would first have been necessary. OCGA § 5-6-35 (a) (7).

Appellants, inmates at the Lee Correctional Institute, were individually indicted for aggravated assault against two other inmates. Walls was charged with two counts of violating OCGA § 16-5-21 (a) (2) in that he assaulted the two victims with a deadly weapon, a homemade knife. Claude was charged in a single count with aiding and abetting Walls in the commission of one aggravated assault. They were jointly tried and convicted of all charges.

Enumerated as error on hearsay grounds is the admission into evidence of six photographs of the crime scene bearing descriptive notations allegedly implicating appellant Walls as the perpetrator of the attacks, and admission of the knife which bore the engraving, “E. Walls,” on the handle.

1. The photographic evidence was introduced through the testimony of a victim who testified that each photograph accurately depicted the scene as it existed after his attack. Neither appellant objected. At the conclusion of its case-in-chief, the State moved for the admission of the photographs. Although the trial court expressly invited objection from counsel, none was raised. Failure to object to the admissibility of the photographic evidence by either appellant at any time prior to verdict, constituted a waiver Johnson v. State, 255 Ga. 703 (3) (342 SE2d 312) (1986); Viener v. State, 150 Ga. App. 175, 177 (2) (257 SE2d 22) (1979); Smith v. State, 123 Ga. App. 269 (180 SE2d 556) (1971).

Decided May 27, 1992.

Betty S. Frazer, for appellants.

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

2. Error is enumerated with respect to admission of the knife, for the reason that the etching of appellant Walls’ name, performed by an officer after commission of the crimes, constituted impermissible hearsay.

The exhibit was initially identified by a victim as the knife with which he was stabbed. Neither appellant objected. It was also identified by a corrections officer as the knife confiscated on the night of the assaults. He explained that it was standard procedure to engrave the inmate’s name on it “to make sure . . . that we can positively identify this as the knife that we took and who was involved with it.” The foregoing testimony was received without objection.

When the State sought admission of the exhibit at the conclusion of its case-in-chief, appellant Claude asserted no objection. Counsel for appellant Walls merely stated: “[T]he only objection I would have is, of course, Mr. Walls’ name is written on it, but I guess it was testified to the jury that it was done the night it was confiscated.” An objection on hearsay grounds was neither raised nor passed on in the trial court. “ ‘ “[W]here an entirely different objection is presented on appeal, we cannot consider it because this is a court for review and correction of error committed in the trial court.” (Cit.)’ [Cit.]” Warren v. State, 185 Ga. App. 108, 111 (3) (363 SE2d 357) (1987). It is well established that appellate courts may not consider objections to evidence not raised at trial.” Sales v. State, 199 Ga. App. 791, 792 (2) (406 SE2d 131) (1991).

Judgments affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A0628.
    SPIEZIO v. AMERICAN GENERAL FINANCE, INC.
    (419 SE2d 149)
   Pope, Judge.

Appellant/plaintiff Salvatore Spiezio appeals from the trial court’s grant of summary judgment in favor of appellee/defendant American General Finance, Inc. Plaintiff brought suit in both tort and contract alleging defendant wrongfully demanded full payment on a five-year promissory note only two months after the loan was consummated.

On October 12, 1991, plaintiff obtained a second mortgage on property located in Chamblee, Georgia, from defendant in the principal amount of $98,187.42 for a five-year term (the “loan”). Shortly after the loan closed, plaintiff reached an agreement with the Georgia Department of Transportation (“DOT”) to convey to DOT access rights in the property for consideration in the amount of $210,000. Plaintiff agreed to convey the access right to DOT in lieu of condemnation. At the closing, DOT insisted that all mortgage lenders for that property consent to the execution of the conveyance of the access rights to DOT and to waive their interests under the deeds to secure debt they held on the property as to the access right’s conveyed. Defendant refused to consent to the plaintiff’s conveyance of access rights to the property and to waive its interests under the deed to secure debt. Therefore, plaintiff completed his deal with DOT and under protest paid the second mortgage in full.

1. With regard to plaintiff’s claim of breach of contract against defendant, we find that the trial court did not err in granting defendant summary judgment on those claims. While none of the loan documents contained a specific condemnation provision, the deed to secure debt contains the following provision: “If not prohibited by law or regulation, this Deed to Secure Debt and all sums hereby secured shall become due and payable at the option of mortgagee and without notice to Grantor forthwith upon the conveyance of Grantor’s title to all or any portion of said mortgaged Grantor’s title to all property and premises, or upon the vesting of such title in any manner in persons or entities other than, or with, Grantor unless the purchaser or transferee assumes the indebtedness secured hereby with the consent of the beneficiary.” Pursuant to that provision, defendant clearly had the right to demand payment in full under the mortgage since plaintiff planned to convey a portion of title to the property securing the mortgage to DOT. Furthermore there is nothing in the loan documents obligating defendant “to agree to the sale and place itself in a less secure position with respect to the [second mortgage it held].” Ambase Intl. Corp. v. Bank South, 196 Ga. App. 336, 339 (3) (395 SE2d 904) (1990).

2. Plaintiff further argues that the trial court erred in concluding the lender could insist that the borrower pay his loan in full merely because the lender concluded that their original 65% loan to value requirement was no longer met after the conveyance to DOT. A review of the trial court’s order granting defendant summary judgment, however, reveals that the trial court did not reach such a conclusion and the only mention of the 65% loan to value requirement was in a section of the order in which the contentions of the parties were set forth. This enumeration of error is without merit.

3. Defendant contends the trial court erred in failing to hold that Harwell v. Ga. Power Co., 250 Ga. 435 (298 SE2d 498) (1983) was controlling in regard to the amount of compensation the lender was entitled to demand in exchange for its consent to the borrower’s conveyance of access rights to DOT. In Harwell, the Georgia Supreme Court held that in a condemnation proceeding both the grantor and grantee under a security deed have an interest in the property conveyed and are both entitled to an equitable amount of compensation for their respective interests. In this case, however, the plaintiff conveyed the property to DOT in lieu of condemnation. Accordingly, the decision in Harwell is not controlling.

4; Plaintiff asserts that the trial court erred in granting defendant summary judgment on his tortious claims against defendant for misrepresentation, fraud in the inducement and wrongful acceleration of a loan. Assuming arguendo that defendant’s conduct can be considered an acceleration of the loan, for the reasons discussed in Division 1, we find no merit to plaintiff’s contention that defendant wrongfully accelerated the loan. With regard to plaintiff’s other claims of tortious conduct, plaintiff alleges he informed defendant of his negotiations with DOT and defendant expressly promised plaintiff the loan would not be called as a result of plaintiff conveying certain access rights to DOT. Plaintiff concedes in his brief that a promise made with regard to a future event cannot constitute actionable fraud, unless there is a showing of present intent not to perform. Sams v. Duncan & Copeland, Inc., 153 Ga. App. 765 (2) (266 SE2d 546) (1980), overruled on other grounds, Wood v. Dan P. Holl & Co., 169 Ga. App. 839 (315 SE2d 51) (1984). Plaintiff failed to meet its burden on motion for summary judgment of presenting evidence of defendant’s intent at the time of the alleged promise.

Furthermore, prior and contemporaneous agreements cannot vary, contradict or change the terms of a valid written agreement, which purports on its face to contain all the terms of the agreement between the parties. “ ‘Making and violating a contemporaneous parol agreement inconsistent with the writings would not be such fraud as would permit a varying of the written instrument, even if pleaded as fraud, no sufficient reason appearing why the agreement was not incorporated in the writings.’ [Cit.]” Hodge Residential v. Bankers First Federal &c., 199 Ga. App. 474, 476 (405 SE2d 302) (1991). The trial court did not err in granting defendant summary judgment as to plaintiff’s tortious claims.

Decided May 27, 1992.

Hudspeth, Williams & Petersen, Dean A. Williams, for appellant.

Prior & Buser, Thomas E. Prior, 0. Byron Meredith III, for appellee.

5. Finally, plaintiff alleges the trial court erred in determining that OCGA § 13-1-13 barred plaintiff’s claims against defendant because he is not seeking to recover any payments made to defendant, but is instead seeking damages against defendant for breach of contract and in tort. It is well-settled that a judgment that is right for any reason will be affirmed. Dunwoody-Woodlands Condo. Assn. v. Hedquist, 199 Ga. App. 91 (2) (403 SE2d 893) (1991). For the reasons set forth above, we hold that summary judgment was proper concerning all claims asserted by plaintiff against defendant. Regardless of whether the trial court properly applied OCGA § 13-1-13, the trial court’s grant of summary judgment in favor of defendant was correct for the reasons set forth in the preceding divisions.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A0640.
    WEEMS v. THE STATE.
    (419 SE2d 346)
   Beasley, Judge.

This is an appeal of a conviction of burglary. OCGA § 16-7-1. •

The dwelling that was burglarized was an apartment at 125 Berlin Street in Athens, Georgia. The occupants of the apartment left at approximately 6:00 p.m. on March 24, 1990, and returned at approximately 11:00 p.m. on March 25 to find that their apartment had been ransacked. Cushions were off the sofas and drawers were pulled out. Several items had been stolen, including a CD player, a stereo receiver, an answering machine, a television, $200 to $250 in cash, two cameras, and some cologne. Entry was made by throwing a rock through a double-pane window in the back bedroom. The thief apparently exited through the back door of the apartment.

The next-door neighbor testified that she had seen appellant standing on her back patio peering into her apartment at approximately 3:30 to 4:00 p.m. either the day of the burglary or the day before. Latent fingerprints taken from the crime scene matched inked fingerprints of appellant.

Outside of the presence of the jury, the trial court heard argument on the state’s notice of intent to introduce evidence of prior transactions. When asked the salient characteristics of the offenses, the prosecutor responded that they were all daylight burglaries of residences, entry was gained through windows when no one was home, and one of the burglaries involved an apartment in the same complex as the one in this case. Appellant objected, on grounds that the crimes were not sufficiently similar and there was nothing in the indictments sought to be admitted which showed the underlying facts of the offenses as stated by the prosecutor. The trial court ruled that the State could introduce evidence of the prior transactions, subject to proving similarity through the facts stated in the prosecutor’s offer of proof.

During the course of the trial, the state introduced the following evidence of two similar transactions. The first involved a burglary committed by appellant a few days later on March 29, 1990, at the other apartment in the same complex. The investigating police officer testified that he responded to a burglary in progress at approximately 12:59 p.m. and encountered appellant running from the scene. Entry had been made by breaking a rear bedroom window, which had putty all over it where the glass had apparently just been replaced. A lot of white putty was found on appellant’s clothing and shoes. Some items taken from the apartment were found in appellant’s possession. Several small electrical appliances had been placed beside the broken window.

The second transaction concerned a burglary committed by appellant on December 16, 1987, at a single-family residence at 3896 Old Lexington Road in Clarke County. It occurred around 11:30 a.m. Entry was gained by breaking a glass pane in a window to the right of the front door. The house had been ransacked. Several items, including six rifles, a shotgun, a television, and a VCR had been placed near the inside of the front door.

The trial court charged the jury that evidence of the other, similar transactions was to be considered only for the limited purpose of showing that the bent of mind or the method of operation employed by the person who committed the other two burglaries was such that it tended to point to defendant as the person who committed the burglary on trial. The court also reminded the jury that defendant was on trial only for the March 24-25 incident.

Citing Williams v. State, 261 Ga. 640, 641 (2b) (409 SE2d 649) (1991), Stephens v. State, 261 Ga. 467, 468 (6) (405 SE2d 483) (1991), and Bacon v. State, 209 Ga. 261 (71 SE2d 615) (1952), appellant argues that the independent burglaries did not bear a sufficient similarity to the one at bar to authorize their admission in evidence. Appellant also complains that, contrary to the requirements of Williams, the State did not inform the trial court of the purpose for which evidence of the other crimes was being offered, and the trial court did not make any findings with respect to whether such purpose was appropriate.

Williams, decided after this trial, establishes a procedure which requires that before any evidence of independent offenses may be admitted in evidence, a hearing must be held pursuant to USCR 31.3 (B) at which the State makes three affirmative showings. “The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility. The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act. The third is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. [Cit.] After the 31.3 (B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act.” (Footnotes omitted.) Williams, supra at 642.

Williams and Stephens both recognized as seminal the decision in Bacon. Bacon was convicted of burglary based on his having entered an upstairs room in a rooming house by breaking a window and taken certain articles. A police officer testified that he had also arrested the defendant on two other occasions, once while attempting to burglarize a store by breaking and entering through a rear window, and a second time while trying to remove a window from the back porch of a residence.

The Court of Appeals held that evidence of the independent crimes was admissible under familiar exceptions to the general rule of inadmissibility. Bacon v. State, 85 Ga. App. 630, 632 (2) (70 SE2d 54) (1952). The Georgia Supreme Court reversed, holding that evidence of the other burglaries should not have been admitted under the general rule “that, on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible.’ . . . [Cits.]” (Emphasis in original.) Bacon, supra at 262.

The Supreme Court held that “[w]hile other offenses shown by the evidence objected to were of the same sort as the one for which the defendant was on trial, this did not render the evidence admissible, for they were wholly independent, separate and distinct. [Cit.] There was absolutely no logical connection between them and the case on trial, as required . . . before such evidence would be admissible for the purpose of showing intent. [Cits.] . . . [C]riminal intent is an essential element in every crime where criminal negligence is not involved . . . and to hold . . . that evidence of other offenses is always admissible to show intent, whether or not there be any logical connection between them and the case on trial, would be to abolish the general rule, and to establish the exception as the general rule without any exception thereto.” Id. at 263-264.

Decided May 27, 1992.

Russell C. Gabriel, for appellant.

Harry N. Gordon, District Attorney, Richard J. Weaver, Assistant District Attorney, for appellee.

Williams noted: “The rationale ... is that evidence of an independent offense or act committed by the accused is highly and inherently prejudicial, raising, as it does, an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or in a similar manner on another occasion and thereby putting the accused’s character in issue.”

Under these decisions, there is an insufficient similarity or connection between the burglary of the single-family residence in 1987 and the crime charged so that evidence of that independent crime was inadmissible. However, the burglary of another apartment in the same apartment complex by the same mode within days after the commission of the present burglary was sufficiently similar and connected to warrant admission of the evidence of it, for the purpose of showing method of operation and therefore identity. As to this evidence of repetitious behavior close in time and location, which the court limited the use of, a reversal for failure to follow William’s sequential procedure is not warranted.

The improper admission of evidence of other crimes is prejudicial. However, given the permissible proof of the burglary of the other apartment in the same complex, and in view of the fingerprint evidence against appellant as to the crime charged, it is highly probable that any error in the admission of evidence of the burglary of the single-family residence did not contribute to the verdict. See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A0645.
    LEGG v. THE STATE.
    (419 SE2d 151)
   Pope, Judge.

Defendant Robert E. Legg was charged with burglary and convicted by a jury of criminal attempt to commit burglary. He appeals from the denial of his motion for new trial, asserting the general grounds and challenging certain portions of the trial court’s charge to the jury. Held:

Construed so as to support the jury’s verdict, the evidence adduced at trial showed the following: On July 15, 1991, law enforcement officials discovered that the front window of McFalls Garage had been broken out. An old air conditioner compressor, which had been placed outside the building, was found inside the building and appeared to have been thrown through the window. Blood was found both inside and outside the building and a blood trail was seen leading away from the building. The garage owner’s son and Detective Keith Smith of the Dalton Police Department followed the trail to a house approximately three blocks away. Blood was observed on both the back and front porch of the dwelling and on the driveway. Defendant’s wife admitted the officer into the house where defendant was lying in bed with a sheet pulled up to his mouth. The officer asked defendant to get out of bed and when he refused the officer pulled the sheet down. Defendant was bandaged from his elbows to his wrists on both arms. The officer asked defendant how he hurt himself and defendant initially responded that he had fallen through a glass table. The officer placed defendant under arrest. As defendant was being led to the squad car he volunteered that he now “remembered what happened” and stated that he had been intoxicated the night before and had fallen through the window of McFalls Garage as he attempted to urinate next to the window. At trial defendant also testified that he was intoxicated on the night in question and had walked over to McFalls Garage with the intention of urinating beside the building but that he had stumbled over “some stuff” placed outside the garage and had fallen through the window which, according to defendant, was already broken. Defendant testified he then walked back home, and at his wife’s insistence, ultimately went to the hospital where his cuts received in the fall through the window were sutured.

1. Defendant first challenges the sufficiency of the evidence to support his conviction for criminal attempt to commit burglary. In support of this enumeration defendant argues that no evidence was presented at trial that he entered or attempted to enter McFalls Garage or that he intended to steal anything from the garage. As stated above, according to defendant’s version of events, he merely fell through an already broken window while he was attempting to urinate outside the building. However, when police came to defendant’s home he initially tried to conceal the wounds received from the broken glass by covering up with a sheet and refusing the officer’s request to get out of bed. Defendant admitted that his initial statement to Detective Smith about how he had been hurt was not true, and stated that he had lied because he was “nervous, shook up, drunk, and everything else.” Although defendant testified at trial that his intention in going over to the garage was to get off the street so that nobody could see him, he admitted on cross-examination that he was visible from the street from his position in front of the building. Defendant also denied that he intended to steal anything from inside the building, and testified at trial that there was nothing in the building he wanted. The owner of the building testified, however, that valuable tools and other items were located in the building and that cars are sometimes stored there overnight.

“In order to commit the offense of criminal attempt, a person must have the intent to commit a specific crime. OCGA § 16-4-1. The question of intent to commit burglary ‘ “is for the determination of the jury under the facts and circumstances proved.” (Cit.)’ Griffin v. State, 148 Ga. App. 311 (1) (251 SE2d 161) (1978). ‘ “As a general rule the state must, of necessity, rely on circumstantial evidence in proving intent. (Cit.) . . . (Cits.)’ Kinney v. State, 155 Ga. App. 95, 96 (1) (270 SE2d 209) (1980). The presence of valuables inside the premises, . . . could support an inference of the intent to steal particularly when no other motive is apparent. Bradshaw v. State, 172 Ga. App. 330, 332 (2) (323 SE2d 253) (1984); Parrish v. State, 141 Ga. App. 631 (1) (234 SE2d 174) (1977).” (Indention omitted.) Methvin v. State, 189 Ga. App. 906, 907-908 (1) (377 SE2d 735) (1989). Although defendant denied his intention to commit a theft, it is axiomatic that “[t]he credibility of the witnesses is solely a jury question. [Cits.] Questions of reasonableness are likewise issues for jury determination. [Cit.] From the evidence presented, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Cit.]” Plummer v. State, 168 Ga. App. 108, 109 (2) (308 SE2d 210) (1983); see also Glanton v. State, 195 Ga. App. 533 (394 SE2d 577) (1990).

2. Defendant also contends that the trial court erred in charging the jury as follows: “An intent to steal may be inferred where the [evidence] shows an unlawful entry into the building of another where valuable goods are stored or kept inside, and where there is no other apparent motive for the entry.- Whether or not you may make any such inference is a matter solely within the discretion of the jury. What is sufficient to constitute an entry. If a person were to, with the intent to commit a theft in a building, break the window out of a building and reach inside the building, that would constitute a sufficient entry. The Court does not indicate or suggest that that is what happened or did not happen, but simply states the rule of law that that would be an adequate entry, as far as the entry requirement is concerned.” Citing Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979) and Francis v. Franklin, 471 U. S. 307 (105 SC 1965, 85 LE2d 344) (1985), defendant argues that this portion of the court’s charge was impermissibly burden shifting. We disagree. This court and our supreme court have previously held that a charge which is presented in terms of inferences which might be drawn by the jury, as opposed to legal presumptions, is not impermissibly burden shifting. See Wood v. State, 258 Ga. 598, 599 (2) (373 SE2d 183) (1988); Pace v. State, 258 Ga. 225 (3) (367 SE2d 803) (1988); Stewart v. State, 182 Ga. App. 576, 577 (3) (356 SE2d 535) (1987); Bogan v. State, 177 Ga. App. 614, 618 (4) (340 SE2d 256) (1986); see also Prothro v. State, 186 Ga. App. 836 (2) (368 SE2d 793) (1988); cf. Powell v. State, 187 Ga. App. 878, 879 (372 SE2d 234) (1988). Consequently, this enumeration is without merit.

Decided May 27, 1992.

Bates, Kelehear & Starr, Harlan M. Starr, for appellant.

Jack 0. Partain III, District Attorney, Albert H. Tester, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A0273.
    REID v. THE STATE.
    (419 SE2d 321)
   Beasley, Judge.

Reid appeals from a judgment of conviction and sentence entered for the offense of burglary, OCGA § 16-7-1, and from the denial of his motion for new trial.

A window had been broken at the Greene County Community Service Building and the offices occupied by the Health Department, the Veteran’s Administration and the Director of the Senior Center had been ransacked. Approximately $300 in United States Treasury Bonds had been stolen from the VA office, $15 to $20 in change had been taken from a soft drink machine and a small amount of change had been taken from a cash box kept in the health office. Three latent fingerprints lifted from the cash box conclusively matched Reid’s. He had been there a month earlier and had seen the cash box.

1. Appellant contends that the court erred in failing sua sponte to declare a mistrial when it learned that a member of the jury had served on the grand jury which returned the indictment, thus depriving him of his “constitutional rights.”

No prospective juror responded when they were asked during voir dire whether anyone was a member of the grand jury which brought the indictment against appellant. Defendant (and the State) presumably did not notice that the name of “Willie D. Hobes” was on the indictment as a grand juror and was also on the list of jurors, both of which documents he had in advance of the voir dire. Nor was anything said when the panel was called and Hobes’ name was read aloud.

Almost immediately after the jury retired for deliberations, it advised the court by note that a juror had indeed served on the grand jury. Defendant responded that the person could not continue on the jury. The court said it would bring in the alternate as a substitute and asked if there were any other ideas for a solution. None was offered, and defendant expressly stated he had no motions in this regard but that the grand juror could not serve. The court called the jury back out and explained why Mr. Hobes was disqualified and directed the alternate to take his place. The jury then retired, the court asked for objections, and none were raised. Appellant did not complain of the substitution until after the verdict, when he amended his motion for new trial.

“ ‘[Objections to irregularities must ordinarily be made at a time when they may be remedied, or they are waived. (Cit.) (However, a) failure to object may be excusable . . .’ State v. Williamson, 247 Ga. 685, 686 (279 SE2d 203) (1981). The question presented ... is whether or not appellant failed to exercise due diligence.” Thomas v. State, 249 Ga. 339, 340 (290 SE2d 462) (1982).

The first opportunity to object was when Hobes’ name was called as a panel member. The proper time for objection and request for mistrial occurred when the jury notified the court of the participation of the grand juror. Appellant affirmatively agreed at that time to the substitution of the alternate, thus indicating satisfaction with the jury as composed. Unlike Thomas, where the participation of a grand juror on the trial jury did not become apparent until after the return of a guilty verdict infected by that participation, appellant learned of the irregularity at the latest when the remedial action demanded in the post-verdict motion could have been sought. Instead, he agreed to be tried by the jury with the substitute. He fails to show that what the court did, with his approval, constituted reversible error because a mistrial was mandated by law or that the grand juror’s brief part in deliberations, if indeed he had any on the case itself, denied him a fair trial by an impartial jury. Thomas’ verdict was returned by a jury whose members included the grand juror; appellant’s did not. Cf. Evans v. State, 196 Ga. App. 1 (395 SE2d 342) (1990), where it also does not appear that a mistrial was requested when the irregularity was discovered but it does not appear that defendant expressly agreed to the substitution, as here. As to the merits, the juror in Evans had expressed to the other jurors during deliberations that she knew defendant well enough for this to influence her decision and the foreman reported that it was interfering with her ability to arrive at a verdict. That is not the case with respect to appellant’s grand juror. If there was a “presumption of prejudice” because the juror failed to respond properly during voir dire and sat briefly as a trial juror, it is overcome by the particular circumstances of this case. See Motes v. State, 192 Ga. App. 302, 303 (3) (384 SE2d 463) (1989).

2. It is further asserted that a new trial is mandated because the alternate juror who participated in the jury deliberations was appellant’s first cousin and allegedly had improper information concerning the case.

During voir dire, the jury panel was asked “whether any of you are related by blood or marriage to the Defendant. . . That would be third cousins or closer. . . .” No response was heard.

The alternate juror was called as a witness during a hearing on appellant’s motion for new trial. She disclosed that she and one of the State’s trial witnesses had borne a child out of wedlock. It was established that the juror was not related to the child’s father by blood or marriage. Appellant’s counsel attempted to question the juror concerning her alleged familial relationship to his client, but the court prohibited such questioning.

OCGA § 15-12-135 (a) provides: “All trial jurors in the courts of this state shall be disqualified to act or serve in any case or matter when such jurors are related by consanguinity or affinity to any party interested in the result of the case or matter within the sixth degree as computed according to the civil law.”

If the juror was in fact the first cousin of appellant and therefore related within the prohibited degree, she would be disqualified to serve in the trial of the case. “But the mere fact that the juror was disqualified, standing alone, is not sufficient to require the grant of a new trial. The accused must go further and show that neither he nor his counsel had knowledge of such disqualification. If either had such knowledge and took the chance of being acquitted by the jury upon which this juror was serving, they could not then be heard to say that the juror was disqualified.” Williams v. State, 206 Ga. 107, 109 (2) (55 SE2d 589) (1949). Williams places the burden on the defendant to establish lack of knowledge even where juror’s relationship was known to the prosecutor.

“The disqualification of a juror . . . may be expressly or impliedly waived by a party having cause to complain, and if expressly or impliedly waived, it is conclusively presumed that no harm or benefit to either party resulted from the disqualification, and where it appears that the party having cause to complain either knew of the relationship or could have discovered it by the timely exercise of ordinary diligence, and remained silent, that party will be presumed to have waived the disqualification. [Cit.] After verdict, an accused cannot obtain a new trial by reason of the fact that a juror is disqualified by relationship. . . , unless he can show that before the verdict he and his counsel did not know of the relationship, and could not have discovered it by the exercise of ordinary diligence. [Cit.]” Brindle v. State, 125 Ga. App. 298, 299 (1) (187 SE2d 310) (1972). Waiver in the present case is presumed.

3. Relying on Brown v. State, 180 Ga. App. 188 (348 SE2d 575) (1986), appellant contends that the state failed to prove to the exclusion of every reasonable hypothesis that his fingerprints on the cash box could only have been impressed when the crime was committed.

“A conviction based soley on fingerprint evidence is authorized where fingerprints corresponding to those of the accused are discovered at the crime scene and under circumstances disclosing they could only have been impressed at the time of the offense. [Cits.] The state’s burden is to prove to the exclusion of every reasonable hypothesis that the fingerprints could only have been impressed when the crime was committed.” Brown, supra at 188. The evidence established that appellant had been on the premises and purchased a birth certificate from the Health Department one month before the burglary. The State established that the cash box was routinely kept in a locked cabinet in an area unaccessible to the public and that even during a cash transaction, it was never positioned so that the public was given an opportunity to touch it. The only persons authorized to handle the box were the two office clerks. The State met its burden of establishing, to the exclusion of every reasonable hypothesis, appellant’s lack of opportunity to leave the identified prints on another occasion.

As in Brown, supra at 189, “a trier of fact could reasonably infer that the print[s were] placed at the time of the burglary and there is no evidence to draw a contrary inference that the imprinting occurred on another occasion.”

The evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the offense of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Collins v. State, 176 Ga. App. 634 (1) (337 SE2d 415) (1985); Prothro v. State, 186 Ga. App. 836 (368 SE2d 793) (1988).

4. Appellant contends that the trial court erred in failing to conduct an evidentiary hearing in accordance with Bearden v. Georgia, 461 U. S. 660 (103 SC 2064, 76 LE2d 221) (1983) to pay a $5,000 fine.

Appellant was sentenced to 15 years, to serve 8 in confinement and the balance on probation. The fine was to be paid “monthly as directed upon release from confinement.” Clearly, probation was not conditioned upon the fine first being paid. A Bearden hearing is required only when the fine is made a condition precedent of probation or probation is about to be revoked for failure to pay the fine. Massey v. Meadows, 253 Ga. 389, 390 (321 SE2d 703) (1984). Neither condition is present here.

Decided May 7, 1992

Reconsideration denied May 28, 1992

Robert E. Surrency, for appellant.

Joseph H. Briley, District Attorney, James L. Cline, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A0463, A92A0641.
    TRULOVE v. WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY; and vice versa.
    (419 SE2d 324)
   Beasley, Judge.

Trulove filed the present action against Woodmen, alleging that he had been induced by the fraud and misrepresentation of Woodmen’s agent Jones to pay $10,000 as a deposit on an adjustable-rate life insurance certificate or policy which he later chose not to purchase, and although Jones assured Trulove that the money would be returned, Woodmen refused to return it. The jury returned a verdict in favor of Trulove for the $10,000 plus interest, attorney fees, and expenses under OCGA § 13-6-11. Woodmen filed alternative motions for j.n.o.v. or new trial. The trial court granted Woodmen’s motion for j.n.o.v. and denied the motion for new trial.

In Case No. A92A0463, Trulove appeals the grant of the j.n.o.v. In Case No. A92A0641, Woodmen appeals the denial of its motion for new trial, in the event we reverse the grant of its motion for j.n.o.v.

Page 1 of the certificate states: “TEN DAY RIGHT TO EXAMINE CERTIFICATE: All premiums paid will be returned if the member wants to cancel this certificate within ten days from the date it is received. To cancel the certificate, give it to the Woodmen representative who delivered it or send it to the Home Office of the Society at 1700 Farnam Street, Omaha, Nebraska 68102.” This is referred to by Woodmen as the statutory ten-day “free look” period. See OCGA § 33-15-11 (c). The policy is described as an “ADJUSTABLE LIFE INSURANCE CERTIFICATE DEATH BENEFIT PAYABLE AT DEATH PRIOR TO MATURITY DATE - CASH VALUE PAYABLE ON MATURITY DATE [-] ADJUSTABLE DEATH BENEFIT - FLEXIBLE PREMIUMS PAYABLE DURING LIFETIME OF MEMBER UNTIL THE MATURITY DATE.” The “TOTAL ANNUAL PLANNED PREMIUM AND DUES” are stated as $4275.00, and the “FACE AMOUNT” is stated as $156,529 which “includes cash value.”

Included on both pages one and two are statements that the issue date is September 28, 1989. Included on page two is that the certificate date is October 1, 1989; the maturity date is October 1, 2016; the maximum initial surrender charge is $6261.16.

Under the heading “SURRENDER VALUE,” the certificate states, “Woodmen will pay the surrender value of this certificate, plus any refunds on deposit with Woodmen, to the member after receipt of this certificate and written request for surrender at the Home Office. The surrender value is the cash value less any debt with interest, and less any surrender charge.” The certificate also allows “PARTIAL SURRENDER.”

At the time of trial in March 1991, Trulove testified that he was a 74-year-old semi-retiree. He was in the lumber and sawmill business, does some work as a real estate broker, and has an auction license. He met Jones through a friend who had purchased supplemental Medicaid insurance from him and recommended him very highly. In August 1989, Jones came to Trulove’s house in order to sell him supplemental Medicaid insurance. Jones told Trulove that the health insurance was a sideline, and that his “bread and butter” was selling life insurance policies issued by Woodmen of the World through which money could also be invested with deferred taxation of the interest.

Jones returned to Trulove’s house on August 16 to deliver medicaid policies to Trulove and his father-in-law. At that time Trulove also signed an application for an adjustable life certificate, which was subject to a physical examination that was performed on Trulove at Woodmen’s expense. A week later Trulove gave Jones a cashier’s check in the amount of $10,000.

On October 18, the adjustable life certificate was delivered to him by Jones, and he signed a certificate delivery receipt as well as a document referred to by Woodmen as a “free-standing” ratification form, which Jones then returned to Woodmen. It stated that the planned premium had been increased in order for the certificate to remain in force beyond the first year for adjustable life. This was prompted by Trulove’s physical examination. It is stated at- the bottom of this form, “IMPORTANT - If this form is signed, this certificate immediately will be in force as of the certificate date shown on Page 2, or as of the date of the signing, whichever comes first. In any event, this form must be signed not later than OCTOBER 28, 1989 and returned to the Payment Adjustment Section or.the certificate will be can-celled.” The “OCTOBER 28” date was marked through and replaced with a handwritten date of “November 4.” A copy of this ratification form was included in the certificate left with Trulove, but Truelove retained it unsigned.

Under the certificate, Trulove was insured through October 1, 1990. The certificate was returned to Jones on November 3, 1989, and Woodmen received Trulove’s request to cancel it on November 6. Woodmen informed Trulove by letter that it could not cancel the certificate since the request was received after the 10-day review period, and the ratification was signed on October 18. Woodmen stated in the letter that Trulove could “cash surrender” the certificate by completing and returning an enclosed form. He did not do that.

Trulove testified as follows. Based on representations by Jones, it was his understanding that Jones was offering him an adjustable life certificate for a one-time premium payment of $100,000. The $10,000 cashier’s check represented a deposit in the event he decided to purchase the certificate, rather than a premium payment, and if he decided to purchase the certificate, he was to deliver an additional $90,000 to Jones. Trulove also testified that Jones represented to him that the ratification form related to an application for an increase in coverage from $156,529 to $200,000. He told Jones that before making a final decision he wanted his accountant and attorney to review the certificate, which they did. Based on their advice, he decided not to purchase the certificate, and he notified Jones of this, after October 28 but on or before November 4, the interlined date on the ratification form. Jones assured him that the $10,000 would be refunded. Trulove acknowledges that he signed the various forms bearing his signature without reading them, instead placing trust and reliance on oral representations by Jones inconsistent with the terms on the forms.

In granting the motion for j.n.o.v., the court found that there was no conflict in the evidence as to any material issue and that the evidence introduced, with all reasonable deductions therefrom, demanded a verdict in favor of defendant. See generally OCGA § 9-11-50; Hiers-Wright Assocs. v. Manufacturers Hanover Mtg. Corp., 182 Ga. App. 732 (2) (356 SE2d 903) (1987). Specifically, the trial court found that the notice requirement was disclosed in bold print in plain English on the face of the policy; after the plaintiff decided too late, i.e., beyond the 10-day period, that he did not want the policy but wanted a refund, defendant offered to return the unearned portion of the premium as calculated from the policy; the insurance company continued the policy in force with full coverage until the policy lapsed for failure to pay the second year’s premium and that is all defendant was required to do; under well-established law, after a policy of insurance is issued, prior representations of the agent afford no basis for recovery.

1. Trulove concedes that under such cases as Thomas v. Union Fidelity Ins. Co., 168 Ga. App. 267 (308 SE2d 609) (1983), oral statements by an agent of an insurance company generally cannot bind the insurance company, and, as recognized in such cases as Powell v. James Hereford & McClelland, 189 Ga. App. 747 (377 SE2d 683) (1989), one signing a document has a duty to read it and is bound by the terms of a document he does not read. Trulove argues there are facts from which the jury could have found that a confidential or fiduciary relationship existed between him and Jones, and, as recognized in Powell, this gives rise to an exception to the foregoing rules. “[A] party to a confidential or fiduciary relationship may rely upon representations made. . . .” Dover v. Burns, 186 Ga. 19, 25 (1) (196 SE 785) (1938).

Trulove relies upon the broad language of OCGA § 23-2-58: “Any relationship shall be deemed confidential, whether arising from nature, created by law, or resulting from contracts, where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.” Thus, some confidential relationships are created by law, some by contract, and others may be created by the facts of a particular case. Cochran v. Murrah, 235 Ga. 304, 306 (219 SE2d 421) (1975). The record is wholly devoid of evidence from which it could be found as fact that a confidential relationship existed between Trulove and Jones. The mere fact that one reposes trust and confidence in another does not create a confidential relationship. Clinton v. State Farm Mut. Auto Ins. Co., 110 Ga. App. 417, 423 (2b) (138 SE2d 687) (1964).

2. The policy for which Trulove signed a receipt on October 18 stated on its first page that he could cancel it within ten days of its receipt. The ratification form stated that the policy would be in force immediately if it was signed, which it was. Trulove could not .reasonably have been misled in these regards by the statement that it had to be signed no later than November 4 or would be cancelled by the insurer, because he signed it forthwith on October 18. Providing until November 4 for it to be signed did not affect the 10-day period, “from the date (the certificate) is received,” for cancellation by the insured, even though the original signing period happened also to be 10 days.

3. Citing Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assn., 250 Ga. 391 (297 SE2d 733) (1982), Trulove argues that there was no enforceable contract because there was no meeting of the minds. As recognized in Cox, it is rudimentary contract law that in some instances the only conduct of the parties manifesting their intent is the express language of the agreement, whereas in other instances the language is ambiguous, in which case the courts are free to consider extrinsic evidence of the parties’ intentions. Cox was a case of the latter variety. This is a case of the former.

Decided May 7, 1992

Reconsideration denied May 28, 1992

William V. Evans, for appellant.

Preston & Preston, Robert H. Preston, for appellee.

4. Attorney fees and expenses of litigation are not recoverable under OCGA § 13-6-11 unless other damages are recoverable. Connell v. Houser, 189 Ga. App. 158, 160 (5) (375 SE2d 136) (1988).

Judgments affirmed.

Birdsong, P. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A92A0244.
    GEORGIA NORTH CONTRACTING, INC. v. HANEY & HANEY CONSTRUCTION & MANAGEMENT CORPORATION.
    (419 SE2d 348)
   Andrews, Judge.

This court granted interlocutory appeal to Georgia North Contracting, Inc. to consider the dismissal of that portion of its complaint seeking foreclosure of three liens.

All three liens, one in Gwinnett County and two in Forsyth County, arose from a contract between Georgia North Contracting, Inc. and the owners of three tracts of land, Haney & Haney Construction & Management Corp. (Haney) and Suwanee/85 Business Park, L. P. The Schwartzes purchased the Forsyth County parcel from Haney on May 7, 1990, before the filing of the lien on August 23, 1990.

The liens stated that they were “claimed by Ron Smith, d/b/a Georgia North Contracting, Inc.” and stated that “[t]his lien is filed within three months after supplying the labor and material for the improvements to said property.” No date was specified.

After filing three suits to foreclose on the liens, all three complaints were amended noting that the liens were filed by the individual instead of the corporation. As stated in the amended complaints, “[w]hen the clerical error was discovered, Ron Smith, one of only two owners of the Plaintiff corporation, transferred all of his rights under the claim of lien to the Plaintiff corporation.”

The owners filed motions to dismiss on two grounds: (1) the lien failed to specify the date the claim came due as required by OCGA § 44-14-361.1 (a) (2) and was therefore unenforceable and (2) the suit to foreclose the lien was brought by a party different from the one who filed the underlying lien leaving the plaintiff without standing to foreclose the lien. The court granted the motions on both grounds.

1. (a) The owners contend that because the lien, on its face, does not reflect the date from which the three month and twelve month time periods mandated in OCGA § 44-14-361.1 (a) (2) & (3) run, the lien is unenforceable for failure to comply with the statute.

Subsections (2) and (3) require filing of record of the claim of lien within three months after completion of the work in the case of a contractor, which claim shall be “in substance” as follows, including “(specify the date the claim was due).”

Georgia North relies on J. H. Morris Bldg. Supplies v. Brown, 245 Ga. 178 (264 SE2d 9) (1980), and L & W Supply v. Whaley Constr. Co., 197 Ga. App. 680 (399 SE2d 272) (1990).

In L & W, it was determined that the statement by a material-man that the “last day . . . material [was] delivered was [August 16, 1988 and September 21, 1988, respectively]” was the legal equivalent of stating that the “claim became due” on said date. “What it stated was the same thing as what is required.” Id. at 681.

Therefore, the L & W lien was effective for all purposes. Even absent a specific calendar date, “[t]he Supreme Court has held that if the lien is filed on time and the action is commenced on time, it is still effective against the property owner despite the lienholder’s failure to specify the amount or due date in the lien claim. J. H. Morris Bldg. Supplies v. Brown, 245 Ga. 178 (264 SE2d 9) (1980).” Id. at 682.

The owners argue that a calendar date which was the legal equivalent of the due date was stated in L & W, while only the defining language “filed within three months after supplying the labor and material for the improvements to said property” is used here and this language is comparable to that used and found insufficient in Lowe’s of Savannah v. Jarrell, 150 Ga. App. 220 (257 SE2d 341) (1979). That case, however, was decided under the statute prior to the 1983 amendment which deleted the proviso that “[t]he failure to specify both the amount claimed due under the lien and the date said, claim was due shall result in such lien not constituting notice for any purposes.” OCGA § 44-14-362 (2), formerly Ga. Code Ann. § 67-2002 (2). See also Cherokee Culvert Co. v. Gurin, 153 Ga. App. 296 (265 SE2d 106) (1980). The language here is similar to the liens involved and found effective at least against the owners in J. H. Morris, supra. As noted in L & W, the 1983 amendment to the statute did not affect the rationale of that case as far as property owners are concerned.

Therefore, the dismissal of the claims as against the owners was improper on this ground.

(b) As to the Schwartzes, the lien would be effective as to them only if they purchased the property with actual notice of the construction or the lien claim. J. H. Morris, supra at 179.

“A motion to dismiss for failure to state a claim is not to be granted unless under the pleadings, construed in a • light most favorable to the plaintiff, plaintiff can establish no set of facts that would entitle it to relief against the defendant. [Cits.]” Wehunt v. ITT &c. Corp., 183 Ga. App. 560, 561 (2) (359 SE2d 383) (1987). Since the issue of actual notice cannot be eliminated at this stage, the dismissal was also improper as to them on this ground.

2. The liens were all filed in August 1990 by “Ron Smith, d/b/a Georgia North Contracting, Inc.” although the suit was filed by Georgia North Contracting, Inc. After the Motion to Dismiss was filed, an amendment to the complaint was filed in which Georgia North acknowledged that the lien was filed by Smith individually instead of the corporation but contended that an assignment of rights on May 17, 1991 corrected this problem.

An instrument signed in this manner merely “shows descriptio personae and does not render the instrument that of the designated principal.” Latham &c. Co. v. Ledbetter Trucks, 96 Ga. App. 219, 221 (99 SE2d 545) (1957). In Allen v. Arrow Contracting Co., 110 Ga. App. 369 (138 SE2d 600) (1964), the lien claim in the name of “Jack A. Spielberg, trading as Arrow Contracting Co., Inc.” was not sufficient to assert a lien for work done under a contract by Arrow Contracting Company by Jack A. Spielberg. See Nix v. Luke, 96 Ga. App. 123, 127 (3) (99 SE2d 446) (1957).

“Contractor” for purposes of the lien statutes is defined by OCGA § 44-14-360 (1) as a “contractor having privity of contract with the owner of the real estate.” Ron Smith was not, either at the time the contract was entered into or at the time the lien was filed, the “contractor” under this definition and therefore had no standing to assert any lien rights. Compare Coe & Payne Co. v. Foster & Kleiser Co., 258 Ga. 161 (366 SE2d 292) (1988) (suit to foreclose lien may be amended to substitute defendant when the lien names the correct owner) and Summit-Top Dev. v. Williamson Constr., 203 Ga. App. 460 (416 SE2d 889) (1992) (corporate veil of owner of property may be pierced under certain circumstances in lien foreclosure proceeding).

Therefore, the dismissal of the count seeking foreclosure of the lien was correct on this premise.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

Decided May 28, 1992.

Calhoun, Whiteside & Coyle, Lee B. Whiteside, for appellant.

McCurdy & Candler, Dana B. Miles, Michael C. McGoff, Hurt, Richardson, Garner, Todd & Cadenhead, Harold N. Hill, Jr., Daniel F. Hinkel, for appellee.

       There were two separate projects involving two properties, resulting in two operative delivery dates.


text:
    A92A0353.
    JOHNSON v. THE STATE.
    (419 SE2d 96)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of rape. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. The trial court’s refusal to give appellant’s written request to charge on the defense of mistake of fact is enumerated as error.

Under controlling Supreme Court authority, appellant’s reliance upon defenses in addition to mistake of fact would not be a valid ground for refusing his written request to charge on that defense. Adcock v. State, 260 Ga. 302 (392 SE2d 886) (1990). Accordingly, the State’s reliance upon decisions of this court which hold to the contrary, such as Laymac v. State, 181 Ga. App. 737, 738 (2) (353 SE2d 559) (1987), is misplaced. If the evidence authorized a charge on mistake of fact, it would be error to fail to give it.

Appellant urges only that he was “mistaken” as to whether the victim had consented to engaging in sexual intercourse with him. Under the evidence, however, the victim either eventually consented and was not thereafter forcibly raped or she never consented and was thereafter forcibly raped. There is no construction of the evidence which would authorize a finding that, although the victim had never consented, appellant nevertheless acted in the reasonably mistaken belief that she had. Moreover, “the jury found the appellant guilty of forcible rape, after proper instruction by the trial court. The element of force negates any possible mistake as to consent. This enumeration [regarding the failure to charge on mistake of fact] has no merit.” Lamar v. State, 243 Ga. 401, 403 (6) (254 SE2d 353) (1979).

2. Appellant asserts that, in two instances during closing argument, comments made by counsel for the State impermissibly shifted the burden of proof. The denial of motions for mistrial based upon these two instances is enumerated as error.

The record demonstrates that, in one of the instances, “[t]he trial court immediately and forcefully . . . instructed the jury [as to the correct placement of the burden of proof]. ‘The extent of a[n] . . . instruction is within the discretion of the court[.] . . .’ (Cit.) We cannot say that [the trial] court abused its discretion in refusing to grant a mistrial in this case.” Love v. State, 173 Ga. App. 85, 86 (3) (325 SE2d 449) (1984).

Decided May 8, 1992

Reconsideration denied May 29, 1992

James A. Yancey, Jr., for appellant.

W. Glenn Thomas, Jr., District Attorney, Kevin R. Gough, Assistant District Attorney, for appellee.

The record further demonstrates that, in the other instance, the motion for mistrial was properly denied on the ground that the closing argument of counsel for the State did not constitute a burden-shifting comment. “ ‘We view the remarks to be a permissible comment on [appellant’s] failure to adduce evidence rebutting the State’s evidence. [Cits.]’ [Cit.] This enumeration is without merit.” Williams v. State, 200 Ga. App. 84, 86 (3) (406 SE2d 498) (1991). See also Bell v. State, 180 Ga. App. 170 (2) (348 SE2d 712) (1986).

3. “Construing the evidence in the light most favorable to sustain the verdict, we hold that the evidence was sufficient to convince a rational trier of fact that [appellant] was guilty beyond a reasonable doubt. [Cit.]” Cherry v. State, 199 Ga. App. 879, 880 (2) (406 SE2d 531) (1991). Accordingly, appellant’s enumeration on the general grounds is without merit.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A0719.
    DILBECK et al. v. YATES.
    (419 SE2d 154)
   Beasley, Judge.

This is a discretionary appeal pursuant to OCGA § 5-6-35 (a) (6).

Yates leased a storage room in a mini-warehouse from Dilbeck. His personal property was stolen in a break-in which left no signs of forced entry. Yates testified that he questioned Dilbeck prior to leasing the space, and in response Dilbeck stated that no one had ever broken into any of the storage rooms and he would furnish a large lock resistant to bolt cutters in order to prevent break-ins. How they occurred, access-wise, is not in evidence. Unbeknownst to Yates, there had been numerous prior break-ins. Dilbeck testified that although he did not remember the specific conversation he had with Yates, he never denied or failed to disclose the prior break-ins to any prospective lessee who made inquiry.

Entry could have been gained by a prior lessee in possession of a key to Yates’ lock, in that when a lock was returned to Dilbeck he would assign it to another lessee. Yates testified that Dilbeck did not so inform him. In addition, there was an open, visible crawl space between the top of the ten-foot wall in the storage space and the peak of the roof. Its width was contested. After the theft, Yates brought a ladder and discovered that this crawl space could be used to gain access to his storage room from other rooms in the warehouse. Previously, he was not aware of this.

In order to recover the value of the stolen goods, Yates filed this complaint for misrepresentation against Dilbeck, the corporation which owns the warehouse, and the corporation in the name of which Dilbeck does business. A bench trial resulted in a judgment for $6,000.

1. Citing Whipper v. McLendon Movers, 188 Ga. App. 249 (372 SE2d 820) (1988), and Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27 (262 SE2d 794) (1980), defendants argue that Yates’ claim against them must fail because a provision in the parties’ rental agreement provided that insurance on property stored on the premises for loss caused by theft, among other things, would be the responsibility of the tenant, and the landlord would not be liable for any loss or damage to the tenant’s property caused by any acts of negligence or the acts of others. Defendants argue that under such cases as Morrison v. Roberts, 195 Ga. 45 (1) (23 SE2d 164) (1942), Yates’ failure to read the rental agreement prior to signing it, as admitted by Yates, bars this action.

In this case, unlike Morrison, the plaintiff is not arguing that the placement of a provision in the contract constituted fraud. Rather, the plaintiff’s position is that he was induced by oral misrepresentations to enter into the written contract in the first place. As recognized in Whipper, supra, fraud in the inducement may be a viable defense to the enforceability of a leasehold contract which contains a provision absolving the lessor from liability to the lessee. The same is true with respect to a claim of fraud.

2. Defendants argue that Yates’ action for fraud must fail for several reasons: he had equal means of ascertaining whether there had been prior thefts (by contacting the police or the Better Business Bureau), and whether other tenants could gain access to his storage space; he did not exercise due diligence in these regards; his reliance on any misrepresentations by Dilbeck was not justifiable. See Lorick v. Na-Churs Plant Food Co., 150 Ga. App. 209, 210 (2) (257 SE2d 332) (1979); McClelland v. Westview Cemetery, 148 Ga. App. 447 (251 SE2d 351) (1978); see also Hubert v. Beale Roofing, 158 Ga. App. 145 (279 SE2d 336) (1981).

These issues, including the core element in this case, i.e., justifiable reliance, concerned questions of fact which were resolved by the court as their trier. Defendants were not entitled, as a matter of law, to judgment in their favor on these issues.

Decided May 29, 1992.

Hill & Henry, F. Bryant Henry, for appellants.

Joseph E. Willard, Jr., for appellee.

3. Defendants finally argue that Yates’ action must fail because “ ‘(f)raud cannot consist of mere broken promises, unfulfilled predictions or erroneous conjectures as to future events.’ [Cit.]” Lorick, supra at 209. Fraud could not be predicated upon assurances by Dilbeck that break-ins in the future would not occur. However, Yates’ fraud claim is based upon misrepresentations as to the occurrence of prior break-ins. Had he known of them, he testified, he would not have rented the space and subjected his property to the degree of risk to which they bore witness.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.