text:
    A98A2234.
    PHINAZEE v. INTERSTATE NATIONALEASE, INC. et al.
    (514 SE2d 843)
   Andrews, Judge.

Stanley Phinazee appeals from the trial court’s grant of summary judgment to his former employer, Interstate Nationalease, Inc. (Interstate), and Jim Stokley, his former employer and immediate supervisor respectively, on his claims for intentional infliction of emotional distress and negligent retention.

Phinazee originally filed suit in federal district court in 1995, alleging these same state grounds as well as racial discrimination in violation of 42 USC § 1981 and Title VII of the Civil Rights Act of 1964. The state law claims were then dismissed and refiled in state court in April 1996. On March 27, 1997, the district court granted Interstate and Stokley’s motion for summary judgment on the federal claims, finding that Phinazee had failed to make out prima facie claims of racial discrimination, retaliation, and constructive discharge.

To succeed on [the claim of intentional infliction of emotional distress, Phinazee] must establish all four of the following elements: “(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; (and) (4) The emotional distress must be severe.” (Punctuation omitted.) Hendrix v. Phillips, 207 Ga. App. 394, 395 (1) (428 SE2d 91) (1993). “Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.” (Citation and punctuation omitted.) Taylor v. Gelfand, 233 Ga. App. 835, 837 (3) (505 SE2d 222) (1998). Moreover, “(i)t has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Citation and punctuation omitted.) Bowers v. Estep, 204 Ga. App. 615, 618 (2) (420 SE2d 336) (1992).

Odem v. Pace Academy, 235 Ga. App. 648, 654-655 (2) (510 SE2d 326) (1998).

This Court conducts a de novo review of the evidence in reviewing the grant or denial of summary judgment. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996). The trial court’s order below did not specify the basis upon which summary judgment was granted, but “[a] grant or denial of summary judgment must be affirmed if it is right for any reason. Gibbs v. Dodson, 229 Ga. App. 64, 69 (2) (492 SE2d 923) (1997); Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746) (1993).” Jimerson v. Republic Land & Investment Co., 234 Ga. App. 417, 420 (3) (506 SE2d 920) (1998).

The bulk of the record in the court below and here consisted of pleadings, depositions, and exhibits from the federal district court action. A complete and detailed recitation of the facts is set out in the district court’s order and will not be repeated here.

The issue is whether the same facts which were found insufficient to make out a prima facie case of racial discrimination and constructive discharge under federal law are sufficient to prevent summary judgment to defendants on Phinazee’s infliction of emotional distress and negligent retention state claims.

In this regard, OCGA § 9-12-40 states that

[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.
Res judicata and collateral estoppel are related and similar, but separate, doctrines. “The former, also known as claim preclusion, requires a plaintiff to bring all his claims against a party (or its privies) arising out of a particular set of circumstances in one action; while the latter, sometimes called issue preclusion, prevents relitigation of an issue already litigated by the parties (or their privies). In other words, under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action” (Citations and punctuation omitted.) Sorrells Constr. Co. v. Chandler Armentrout & Roebuck, P.C., 214 Ga. App. 193-194 (447 SE2d 101) (1994).

(Emphasis supplied.) Brewer v. Schacht, 235 Ga. App. 313, 315 (1) (509 SE2d 378) (1998). See also Smith v. Maytag Corp., 216 Ga. App. 676, 679 (2) (455 SE2d 379) (1995).

The issue of whether race was the basis for the supervisory actions taken by Stokley which Phinazee contends caused emotional distress was decided adversely to Phinazee in the district court action and cannot be relitigated here. Brewer, supra. In Georgia, absent a racial or other motive in violation of public policy, an employer may discharge an at-will employee for any reason or no reason. OCGA § 34-7-1; Borden v. Johnson, 196 Ga. App. 288, 290 (2) (395 SE2d 628) (1990). Here, Phinazee was not constructively or actively discharged, but opted initially to leave the supervisor’s position with Interstate and resume his mechanic’s position before taking another job with another company.

Had he been discharged, in the absence of an improper racial motive, such a discharge will not give rise to a claim for intentional infliction of emotional distress. Kitfield v. Henderson, Black &c., 231 Ga. App. 130,135 (6) (498 SE2d 537) (1998); Borden, supra at 289 (1). Nor will mere insults and indignities, even assuming that such acts have been shown by the record before us. Amstadter v. Liberty Healthcare Corp., 233 Ga. App. 240, 243 (2) (503 SE2d 877) (1998).

No valid claim for intentional infliction of emotional distress having been sustained, the essentially derivative claim of negligent retention also fails. Coleman v. Housing Auth. of Americus, 191 Ga. App. 166, 168 (1) (381 SE2d 303) (1989).

Therefore, summary judgment was appropriate.

Decided March 16,1999.

Thomas, Means, Gillis, Devlin, Robinson & Seay, Marvin A. Devlin, Quinton Seay, Jennifer D. Odom, for appellant.

Fisher & Phillips, Griffin B. Bell, Jr., Rene W. Berman, for appellees.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.

       This order, although specifically cited by Interstate and Stokley, is not, as they incorrectly describe it, a “dismissal order,” but one granting summary judgment to the defendants. The order was affirmed on appeal. Phinazee v. Interstate Nationalease, 158 F3d 588 (11th Cir. 1998).

       The standards for the federal claims are also set out in the district court’s order and establish a lower threshold for defeating a motion for summary judgment than the standard of “outrageous” conduct required for intentional infliction of emotioned distress.

        Trimble v. Circuit City Stores, 220 Ga. App. 498 (469 SE2d 776) (1996), relied upon by Phinazee, involved an interlocutory appeal from dismissal of a complaint and underlying sexual harassment, neither of which is involved here.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A98A2337.
    CLARK v. CITY OF KENNESAW.
    (514 SE2d 701)
   Smith, Judge.

Following a jury trial in this condemnation proceeding instituted by the City of Kennesaw, a jury awarded $285,000 to condemnee Kenneth Clark. Clark’s motion for new trial as amended was denied, and he appeals. We find no error, and we affirm.

1. Clark contends that the trial court erroneously limited the scope of his testimony concerning the basis for his opinion of the value of his property. On direct examination he testified, without objection, that he considered the fair market value of his property to be $500,000. When asked how he arrived at this figure, he stated that, as a bail bondsman, by using the property as collateral, he was authorized to sign up to $500,000 worth of bonds. The trial court sustained the city’s objection and instructed the jury to disregard this testimony concerning bonding collateral.

We find no error. Although the jury was not permitted to consider Clark’s testimony concerning the value of his property as collateral for bail bonds, Clark did testify as to other bases for his opinion concerning its value. He twice testified that he had familiarized himself with real estate, including property values, in Cobb County and that he had used other property sales in reaching his opinion as to the value of his property.

Furthermore, evidence concerning use of the property for bail bond collateral was not relevant to the issue of fair market value, defined as the sum a willing buyer under no obligation to buy would pay to a willing seller under no obligation to sell. See, e.g., Jotin Realty Co. v. Dept. of Transp., 174 Ga. App. 809, 811 (331 SE2d 605) (1985). The objected-to testimony was evidence of the property’s particular value to Clark, and

as long as there is an ascertainable market value, no consideration need be given to value peculiar to the owner. . . . Condemnation proceedings are in rent and just compensation must be based upon the value of the rights taken, without regard to the personality of the owner or his personal relationship to the property taken. The value of the property for his personal purposes must he disregarded.

(Citations and punctuation omitted; emphasis supplied.) Dept. of Transp. v. Metts, 208 Ga. App. 401, 402 (430 SE2d 622) (1993).

Dept. of Transp. v. Arnold, 154 Ga. App. 502 (268 SE2d 775) (1980) and Sharpe v. Dept. of Transp., 267 Ga. 267 (476 SE2d 722) (1996), relied on by Clark, are not controlling. In Arnold, this court did state the general rule that “[a]nything that actually enhances the value of the land must be considered in order to meet the demands of the Constitution that the owner be paid . . . adequate and just compensation.” (Citation and punctuation omitted.) Arnold, supra at 503. But the opinion evidence in that case addressed an intrinsic characteristic of the condemned property itself: its character as “an integral part,” id., of a larger tract owned by the condemnee and other owners. Similarly, the opinion evidence in Sharpe addressed the inherent value of mineral deposits located on the condemned property. As argued by the city here, Sharpe demonstrates the rule that evidence of value must relate to the realty rather than to use of the property for the owner’s personal purposes; mineral deposits are clearly connected to the realty in which they are discovered.

Clark’s reliance on Central of Ga. R. Co. v. Little, 126 Ga. App. 502, 506 (6) (191 SE2d 105) (1972) also is misplaced. The issue in that case was whether the owner of a damaged vehicle could testify as to value, despite the fact that he was not an expert. Id. This court stated in Little that the owner could give his opinion on this issue whether or not he was an expert and that if he were not an expert, he must give the basis for his opinion. Id. The issues in this case do not involve the question of whether Clark was an expert; moreover, as discussed above, he was permitted to testify to the basis for his opinion of value of the property. We find no error.

2. Clark contends the trial court erroneously refused to allow him to question the city’s appraiser concerning the city’s intended use of Clark’s property. In the same enumeration, he also argues that the trial court erred in admitting two documents representing the city’s parks and recreation master plan. He further has expanded his argument beyond these dual contentions in a single enumeration by arguing that he was prevented from introducing at trial his plans to develop a replica of a historic site on this property, plans the city took steps to implement after the condemnation occurred. We first note that because Clark has asserted more than one error in a single enumeration, we would be authorized, in our discretion, to elect not to review any of these claims. See, e.g., Wilson v. Southern R. Co., 208 Ga. App. 598, 606 (6) (431 SE2d 383) (1993). However, examining Clark’s arguments as a whole with regard to these dual contentions, we have elected to address what appears to be the crux of his contention: the trial court’s refusal to admit evidence that allegedly would have shown enhanced value of Clark’s property at the time of taking.

Evidence was introduced that in the summer of 1995, before the taking of Clark’s property in 1996, the city passed a “historic preservation (HPV) ordinance.” This ordinance apparently adopted an HPV zoning classification, or an “overlay” onto the general commercial zoning in the vicinity of Clark’s property. This non-mandatory “overlay,” however, was not implemented until actual rezoning of the property occurred, approximately two months before trial.

Clark sought to show that the value of his property was enhanced by its location at the “epicenter” of this HPV district. The court excluded evidence which, according to Clark, would have accomplished this end. As mentioned above, Clark unsuccessfully sought to introduce two documents comprising the city’s parks and recreation master plan. He also sought to ask the city’s appraiser whether the appraiser was aware of plans before the taking of Clark’s property “to zone multiple parcels HPV.”

The record does not clearly show that Clark laid a proper foundation for admission of the documents. He did not show whether the plan, in its entirety, was implemented at the time of the taking. It is well settled that “[i]n all cases, the only question for decision is the value of property taken ... at the time of taking. [Cit.]” Dept. of Transp. v. Benton, 214 Ga. App. 221, 222 (447 SE2d 159) (1994).

But even assuming that Clark did lay a proper foundation for the admission of these documents, we find no reversible error with regard to the trial court’s rulings concerning the excluded evidence. We recognize the general rule that a landowner is entitled to compensation for “[a]nything that actually enhances the value” of land. Hard v. Housing Auth &c. of Atlanta, 219 Ga. 74, 80 (132 SE2d 25) (1963). “[A] condemnee is entitled to recover the value, at the time of taking, of the land taken, and . . . evidence showing an enhancement in its value, as of the time of taking, resulting from the previously announced plans of the condemnor is admissible.” Ivy Inn, Inc. v. MARTA, 255 Ga. 557, 558 (340 SE2d 600) (1986), citing Hard, supra. See also Zone Enterprises v. Geo. L. Smith II Ga. World Congress Center Auth., 234 Ga. App. 238, 239-240 (506 SE2d 424) (1998).

But here, although Clark was not permitted to introduce certain documents or to ask the city’s appraiser a question concerning the city’s intent concerning HPV zoning, we cannot say that Clark was foreclosed from introducing evidence concerning potential development of a historic preservation village or the location of Clark’s property within this village. On cross-examination, for example, the city manager testified concerning the document that adopted the HPV district in August 1995. Also, Clark elicited testimony showing that Clark’s property was located in the center of the historic preservation village. Because it appears that the excluded evidence would have been merely cumulative of evidence admitted without objection, we cannot say that the trial court abused its discretion. See generally Wood v. Browning-Ferris Indus. of Ga., 206 Ga. App. 707, 708 (3) (426 SE2d 186) (1992).

Finally, even assuming that the excluded evidence may have shown some enhanced value not otherwise shown by other evidence admitted at trial, reversal is not required, for Clark never made a proffer of evidence showing any enhanced value of his property by virtue of the plans. As in Zone Enterprises, supra, “there is no evidence in the appellate record showing the enhanced value . . . that [Clark] was prevented from introducing at trial.” Id. at 240. Clark therefore has waived appellate argument that the evidence was erroneously excluded. See id.; Dent v. State, 220 Ga. App. 147, 149 (469 SE2d 311) (1996).

3. Clark argues that the trial court erred in ruling inadmissible his testimony concerning the city’s excavation of his property after the taking. On direct examination, Clark testified that the city “[Recently . . . dug up the spot where the old Lacy Hotel sat.” Counsel for the city objected on the ground that Clark should have submitted the minutes of the city council meeting authorizing this action, and the trial court sustained the objection.

Regardless of the city’s basis for objection, we conclude that the trial court did not commit reversible error in excluding Clark’s unresponsive testimony. The objected-to comment was made in the context of questioning by Clark’s attorney about plans Clark submitted to the mayor and city council concerning his intentions to develop the property as the recreation of the old Lacy Hotel and whether the city had agreed to participate with him in this endeavor. Clark’s attorney asked whether “formal action” had been taken by the city with respect to the hotel, and Clark responded that the city had begun excavation of the site. Following the city’s objection, Clark’s counsel stated that he had not anticipated this response from Clark and rephrased his question to ask whether the city had taken action with respect to participating with Clark concerning his proposal to recreate the hotel.

It appears from this context that Clark may have been attempting to show, by virtue of the city’s excavation, that his own pre-taking plans to reconstruct the historic site were viable and that these plans enhanced the value of the property. But despite the city’s post-taking action with respect to the land, Clark was required to show that his plans to reconstruct the hotel amounted to more than mere speculation at the time of taking.

In determining just and adequate compensation, a jury may consider the value of property for uses other than its use at the time of taking. But the property’s mere adaptability to a different use is insufficient for consideration of this different use as a basis for compensation. Such use of the property must be so reasonably probable as to affect the property’s present value. Dept. of Transp. v. Great Southern Enterprises, 137 Ga. App. 710, 713 (225 SE2d 80) (1976). See also Colonial Pipeline Co. v. Williams, 206 Ga. App. 303, 304 (425 SE2d 380) (1992); Benton, supra at 222. The trial court’s determination of whether the evidence shows a reasonable probability that the property can be used for a different purpose will not be disturbed absent a manifest abuse of discretion. Great Southern, supra at 713.

We cannot say that the trial court’s exclusion of Clark’s testimony was a “manifest abuse of discretion.” Regardless of the city’s ultimate use of Clark’s property, Clark has not shown that any plans he had at the time of taking were more than mere speculation or conjecture. Approximately four years before the date of taking, he presented these plans to the city council more than once, and the plans were rejected on each occasion. A former city council member who testified on Clark’s behalf about these meetings stated that Clark’s plans amounted to “more of a dream, I think, more than anything else.” Finally, Clark failed to proffer any evidence showing the enhanced value of the site by virtue of its status as the site of the former hotel. See Zone Enterprises, supra. We therefore conclude that Clark has shown no basis for reversal on this ground.

4. Clark contends that the trial court erroneously refused to allow him to question the city’s appraiser concerning comparable sales used by the expert but disregarded in his final analysis. In this regard, he argues that the court should have admitted two documents containing notes prepared by an employee of the city’s appraiser, but not relied on by the appraiser, in valuing his property.

It does appear that the expert did not rely on the comparables prepared by his employee and apparently referred to in the objected-to documents. Moreover, contrary to Clark’s argument that he was precluded from cross-examining the witness concerning the reasons he discarded those comparables, the record shows that he was afforded ample opportunity to cross-examine the witness on this issue. The admissibility of evidence is a matter largely within the trial court’s discretion. See generally Icy Inn v. MARTA, 175 Ga. App. 580, 582 (2) (334 SE2d 319) (1985), aff’d 255 Ga. 557, supra. Under these facts, we find no such abuse here.

Decided March 16,1999.

Moore, Ingram, Johnson & Steele, John H. Moore, Michael R. Wing, for appellant.

Bentley, Bentley & Bentley, Fred D. Bentley, for appellee.

Judgment affirmed.

Johnson, C. J., and Barnes, J., concur.

       Clark’s property was a nearly vacant lot in downtown Kennesaw.

       On cross-examination, the city’s appraiser testified that use of the “guidelines of the village” when property was developed was not mandatory.

       We also note the statement to the trial judge by Clark’s trial counsel that the general commercial zoning of Clark’s property represented its highest and best use.


author: Johnson, Chief Judge.

text:
    A99A0442.
    SELLEY v. THE STATE.
    (514 SE2d 706)
   Johnson, Chief Judge.

A jury found Sherrum Selley guilty of armed robbery (OCGA § 16-8-41) and theft by bringing stolen property into the state (OCGA § 16-8-9). He appeals from the judgment of conviction entered upon the jury verdicts. We affirm.

Viewed in a light most favorable to support the verdict, the record shows that Selley and his co-defendant drove a car into Georgia after stealing it in Alabama. Selley confessed to the crimes at trial. According to Selley, he and his co-defendant were driving the stolen car to a “chop shop” as part of a gang initiation. When the car broke down in Georgia, Selley and his co-defendant attempted to locate another car to steal. They found a pistol inside the stolen car. Unable to locate a parked, empty car to steal, they decided to use the pistol to rob someone of a car. They identified an automobile to “caijack” as it entered the parking lot of a Days Inn. The driver had gotten out of the car and was “fishing around for something” in the back of the car when Selley and his companion pointed the gun at the victim and demanded the keys to his car. Selley then ordered the victim into the car, but the victim dropped the keys and ran away. The victim testified that he felt threatened by Selley during the armed robbery. Selley admitted he and his co-defendant “jacked” the car, referring to the armed robbery.

1. The trial court did not err by denying Selley’s motion in limine to suppress portions of his taped statement to police. Selley claims the gang references in the taped statement impermissibly impugned his character and were overly prejudicial.

Selley’s statement regarding the gang activity helped establish the motive for the crime of bringing the stolen car into Georgia. See Warren v. State, 233 Ga. App. 699, 700 (2) (505 SE2d 777) (1998). Selley testified that he came to Georgia in the stolen car as part of “an initiation thing.” In addition, some of the gang details in his statement to which Selley objected, e.g., the requirement that a person had to kill somebody to get into the gang, were introduced at trial without objection. The admission of evidence as to which there may be a valid objection is harmless if admissible evidence of the same fact is before the jury. Richardson v. State, 233 Ga. App. 233, 237 (3) (504 SE2d 65) (1998). The trial court did not abuse its discretion in admitting this evidence. See Cyrus v. State, 231 Ga. App. 71, 72 (2) (498 SE2d 554) (1998).

2. Selley argues that the trial court should have exercised its discretion and severed the offenses of theft by bringing stolen property into the state and armed robbery for trial. We disagree, finding the trial court properly denied Selley’s motion to sever the charges.

When a defendant argues for severance based on the trial court’s discretion, it is his burden to demonstrate that severance should be granted because of one or more discretionary concerns. Smith v. State, 225 Ga. App. 553, 554 (1) (484 SE2d 515) (1997). In rendering its decision, the trial court should consider whether the jury will be able to distinguish the evidence and apply the law intelligently as to each offense, in view of the number of offenses charged and the complexity of the evidence to be offered. Dingler v. State, 233 Ga. 462, 463-464 (211 SE2d 752) (1975). Distinct offenses may be joined for trial if they are based (1) on the same conduct, (2) on a series of acts connected together, or (3) on a series of acts constituting part of a single scheme or plan. Barber v. State, 176 Ga. App. 103,104 (2) (335 SE2d 594) (1985).

It is undisputed that the armed robbery occurred because the vehicle involved in the theft by bringing stolen property charge broke down. Evidence regarding the stolen vehicle would have been admissible in the armed robbery trial to establish motive and as part of the res gestae, even if the two charges were tried separately. Even Selley acknowledges that “it is arguably correct that the crime of bringing the stolen vehicle into the state and the armed robbery are such a ‘series of acts’ connected together or forming a common scheme that the exception in Dingler is applicable.” Thus, it was not error for the offenses to be tried together. See Sabree v. State, 195 Ga. App. 135, 137 (1) (392 SE2d 886) (1990); see generally Phillips v. State, 160 Ga. App. 345 (1) (287 SE2d 69) (1981).

3. Selley contends the trial court erred in admitting his custodial statement because it was not voluntarily given but was given in the hope of receiving a benefit. We disagree.

“When a trial judge holds a suppression hearing and determines the voluntariness of a confession, that determination will be upheld on appeal unless clearly erroneous. [Cit.]” Leigh v. State, 223 Ga. App. 726, 727 (1) (478 SE2d 905) (1996). After conducting a hearing under Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), the trial judge found that Selley’s custodial statement was freely and voluntarily made. At the hearing, Selley testified that the detective told him he would talk to the prosecutor and see if he could get Selley a good deal if Selley cooperated. No promises were made, and Selley signed the waiver form indicating that his statement was made without promises or threats. “Merely telling a defendant that his or her cooperation will be made known to the prosecution does not constitute the ‘hope of benefit’ sufficient to render a statement inadmissible under OCGA § 24-3-50.” (Citation and punctuation omitted.) Lawrence v. State, 227 Ga. App. 70, 73 (5) (487 SE2d 608) (1997) . The trial court’s finding that Selley’s confession was made freely and voluntarily was not clearly erroneous. See Leigh, supra; Lyles v. State, 221 Ga. App. 560, 561 (1) (472 SE2d 132) (1996).

4. According to Selley, the trial judge’s questions at the end of the victim’s testimony constituted an improper comment on the evidence. However, Selley never objected to the trial judge’s questions and never moved for a mistrial. Thus, this issue is not preserved for appeal. Rowe v. State, 266 Ga. 136, 137 (2) (464 SE2d 811) (1996); Walker v. State, 258 Ga. 443, 444 (3) (a) (370 SE2d 149) (1988).

5. The trial court properly allowed the jury to hear Selley’s taped confession again during deliberation. “The replaying of evidence which the jury asked to hear is within the discretion of the trial court. [Cits.]” Brooks v. State, 231 Ga. App. 561, 564 (4) (500 SE2d 11) (1998) .

6. Selley asserts there was a fatal variance between the indictment count charging him with theft by bringing stolen property into the state and the evidence adduced at trial. OCGA § 16-8-9 provides that a defendant is guilty of theft by bringing stolen property into the state if he brings into this state property which he knows or should have known was stolen in another state. Count 2 of the indictment charges Selley as follows:

And the Jurors aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse the said SHERRUM PERU SELLEY and [his co-defendant] with the offense of THEFT BY BRINGING STOLEN PROPERTY INTO THE STATE (16-8-9); for that the said SHERRUM PERU SELLEY and [his co-defendant] in the County of Troup and the State of Georgia, on or about February 6, 1995, did then and there unlawfully receive, dispose of and retain stolen property, to wit: one Black Grand Am automobile bearing Alabama tag number 3AFV617, the property of [another], which they knew and should have known said property was stolen without the intent to restore said property to said owner, contrary to the laws of said State, the good order, peace and dignity thereof.

According to Selley, the indictment is cast in the language of the theft by receiving statute (OCGA § 16-8-7), and the proof at trial did not show that he “received” stolen property in Troup County. Clearly, the language of this charge could have been more artfully crafted. And if the wording at issue had merely described a theft by receiving charge, Selley’s argument may have merit. However, the language in this count of the indictment, while describing a theft by receiving charge, specifically charged Selley with the offense of theft by bringing stolen property into the state and specifically cited Code section 16-8-9, the statute defining the offense of theft by bringing stolen property into the state. Thus, there was an alleged variance between the offense named, the Code section cited, and the allegations specified in the indictment. Such a variance requires Selley to object to the form of the indictment prior to trial, which Selley failed to do.

An alleged variance between the offense as named or the Code section cited and the allegations specified in the indictment goes only to the form of the indictment. Where the accused desires to take exception to the form of an indictment, it is essential that he should do so by a demurrer or motion to quash, made in writing and before entering a pleading to the merits.

(Citations and punctuation omitted.) Bentley v. State, 210 Ga. App. 862 (1) (438 SE2d 110) (1993); see also Phillips v. State, 215 Ga. App. 526 (2) (451 SE2d 517) (1994). Since the record does not show that Selley objected to the form of the indictment in a timely, written pretrial motion, he waived any exception to the form of the indictment. OCGA §§ 17-7-111; 17-7-113; Mullinax v. State, 231 Ga. App. 534 (1) (499 SE2d 903) (1998); Bentley, supra.

In Mullinax, the accusation charged the defendant with a different crime from the cited Code section. Mullinax asserted that the trial court erred in denying his motion for plea in abatement because the evidence did not show he violated the Code section cited in the accusation. We held that Mullinax failed to properly preserve the issue by waiving any objections to the form of the accusation. Id. A defendant cannot proceed to trial on an objectionable indictment or accusation, receive a guilty verdict, and then argue the state’s proof did not meet the allegations contained in the objectionable indictment or accusation. He must object to the form of the indictment in a timely, written pretrial motion. Thus, the issue was not preserved for appeal.

Decided March 16,1999.

Law Offices of Ellis C. Smith, James C. Thornton, for appellant.

Peter J. Skandalakis, District Attorney, for appellee.

7. The evidence was sufficient to support Selley’s conviction of armed robbery. Not only did Selley’s co-defendant testify regarding Selley’s involvement in the armed robbery, but Selley admitted in his taped confession that “we jacked” the motor vehicle from the victim. In addition, the victim testified that both Selley and his co-defendant were present during the armed robbery and that he felt threatened by both of them. Viewed in a light most favorable to support the jury’s verdict, the evidence was sufficient for a rational trier of fact to find Selley guilty beyond a reasonable doubt of armed robbery. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Earl v. State, 214 Ga. App. 891 (1) (449 SE2d 361) (1994).

Judgment affirmed.

Andrews and Ruffin, JJ., concur.


author: Andrews, Judge.

text:
    A98A1836.
    O’NEAL v. THE STATE.
    (513 SE2d 50)
   Andrews, Judge.

Aubrey Allen O’Neal appeals from his conviction of voluntary manslaughter of Robert Fountain.

Viewed in favor of the jury’s verdict, the evidence was that O’Neal allowed Christie Barnette, a 25-year-old woman, to live in his home. She occupied the front bedroom of the home, with her dog and three cats, while O’Neal occupied a rear bedroom. O’Neal contended that the relationship was sexual and Barnette slept with him when he was not working, but Barnette said it was platonic. Prior to moving in with O’Neal, Barnette had lived with Ricky Willingham.

After moving in with O’Neal, Barnette had allowed Willingham into the house to stay with her for a weekend in October 1996, without O’Neal’s knowledge. Barnette told Willingham she would not return to living with him and he became angry. When he would not leave, she pretended to call the police, but called O’Neal instead and told him he would not leave. O’Neal called the police and Willingham was arrested.

Barnette had also dated Fountain earlier and became reacquainted with him before Thanksgiving 1996. She began regularly talking to Fountain on the phone and O’Neal became upset by this. She and O’Neal encountered Fountain before Christmas at a gas station and words were exchanged between the two men.

On her birthday, December 31, Barnette called Fountain from her parents’ home, where she was visiting with O’Neal, and told him to go to O’Neal’s house and wait for her, which he did. When she returned, she snuck Fountain into the house while O’Neal was gone because she knew O’Neal would have a problem with his presence. After O’Neal returned, she spent several hours talking with him in the living room while Fountain hid in her bedroom. Around 4:30 a.m. on January 1, 1997, O’Neal went to work to help another clerk stock the convenience store’s cooler. Barnette took her dog and cats into the bedroom with Fountain and they talked and listened to music for a while. She then went into O’Neal’s bedroom to use his bathroom and, when she returned, she had O’Neal’s rifle. She asked Fountain to check to see whether it was loaded and it was not. Barnette then returned the gun to O’Neal’s bedroom.

Barnette, wearing lingerie, and Fountain, wearing his underwear, were lying on her bed when O’Neal arrived home and heard music and voices from her room. O’Neal went back to his truck and got his .35 caliber Marlin rifle, which was loaded. O’Neal turned the door handle and, when it did not open, he shoved it with his shoulder and knocked it off its hinges.

O’Neal said to Fountain, “[W]hat did I say I was going to do to you the next time I ever saw you? You are a S-O-B.” Fountain was then shot in the right arm and side. O’Neal then hit Fountain in the head with the rifle butt repeatedly, cracking and penetrating his skull and breaking the rifle. Either of these injuries was potentially fatal.

O’Neal went to the kitchen and retrieved a knife which he placed on the floor beside the bed. He then told Barnette to tell police that Fountain was assaulting her and he came to her rescue. He called 911 and advised the police he had shot a guy who had broken in on his girlfriend and tried to rape her.

The evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

1. O’Neal’s first and second enumerations are that the trial court violated his federal Sixth and Fourteenth Amendment rights and his corresponding Georgia rights by refusing to allow questioning of Barnette about crime scene photographs which had been stipulated into evidence and by not allowing him to discuss in his closing argument photos showing animal feces in Barnette’s room and other photos that showed she was messy.

There is no independent argument, either below or here, concerning the State constitutional grounds and we do not address those grounds. Fritzius v. State, 225 Ga. App. 642, 643 (484 SE2d 743) (1997).

The objection voiced below was that not allowing further cross-examination was an “impermissible limitation on the right of cross-examination. I think it deprives my client of his rights under the 6th and 14th Amendments to the United States Constitution . . . and ... I move for a mistrial.” No further argument was made concerning the alleged constitutional violations.

Regarding the court’s direction that he not mention those photos in closing solely for the purpose of showing Barnette’s sloppiness, counsel stated that limited his argument and would “deny my client effective assistance of counsel under the 6th amendment and 14th amendment of the United States Constitution and ... I would move for a mistrial. . . .”

“[R]ote repetition of constitutional provisions is totally ineffective in raising a constitutional issue for this court’s determination. See Taylor v. State, 177 Ga. App. 624, 628 (3) (340 SE2d 263) (1986), where we pointed out that “merely intoning” a citation to a constitutional provision fails to provide a basis for our examination of the right purportedly deemed to have been violated. (Cit.)” [Cit.]

Hall v. State, 200 Ga. App. 585-586 (1) (409 SE2d 221) (1991).

Therefore, there is nothing for us to consider regarding these two enumerations.

2. O’Neal contends that the trial court’s jury instructions concerning a verdict form prepared by the court was so confusing as to leave the jury with the impression it must find him guilty of one of the three charged crimes, i.e., malice murder, felony murder, or voluntary manslaughter, and that the court’s charge on aggravated assault was improper because the court had removed that charge from the jury’s consideration by “directing a verdict” in O’Neal’s favor as to it.

The trial court had prepared a verdict form as follows:

“We the jury find the defendant (not guilty) (guilty) of Malice Murder.” The same language was included for Felony Murder and Voluntary Manslaughter. No option was given for aggravated assault, the underlying felony for the felony murder charge.

As acknowledged by the State, the court’s instructions to the jurors that they should mark out the option that did not apply were less than clear and the court incorrectly charged the jury that it could convict O’Neal of only one of the three options contained on the form. In fact, O’Neal could have been convicted of felony murder, malice murder, and aggravated assault, but only sentenced for either malice murder or felony murder with the aggravated assault merging with the felony murder at sentencing. Hayes v. State, 265 Ga. 1, 2 (2) (453 SE2d 11) (1995); Malcolm v. State, 263 Ga. 369, 371 (4) (434 SE2d 479) (1993).

Decided February 24,1999

Reconsideration denied March 17,1999.

Fanning & Hudson, Steven E. Fanning, for appellant.

Peter J. Skandalakis, District Attorney, Rudjard M. Hayes, Hope F. Smelcer, Assistant District Attorneys, for appellee.

A review of the entire charge given, Mobley v. State, 218 Ga. App. 739, 740 (2) (463 SE2d 166) (1995) and Young v. State, 221 Ga. App. 462, 463 (3) (471 SE2d 523) (1996) (physical precedent), including the incorrect recharge regarding whether the jury could only convict of one charge, shows that the error in the charge benefitted O’Neal. Despite his argument here, the charge as a whole made it clear to the jury that their options were to find him not guilty of all of the charges or guilty of only one of them.

Harm as well as error must be shown to authorize reversal and where none has been shown, the judgment will be affirmed. Robinson v. State, 229 Ga. 14, 15 (1) (189 SE2d 53) (1972); Beene v. State, 202 Ga. App. 857 (1) (415 SE2d 545) (1992).

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Beasley, P. J., concurs as to Division 2 and in the judgment.

       Barnette’s parents both testified that they had heard O’Neal threaten Fountain.


author: Judge Harold R. Banke.

text:
    A99A0086.
    PRICE v. THE STATE.
    (513 SE2d 40)
   Judge Harold R. Banke.

Brian S. Price was convicted of aggravated assault. He enumerates five errors on appeal.

This case arose in the evening after the victim, Price’s wife, took the keys to his car to prevent him from driving drunk. She left with the keys and stayed away all night, drinking coffee in a gas station until she reported for work the next morning. After she arrived at work, Price came in, still intoxicated, wanting his keys. At that point, the victim telephoned the police. When she refused to relinquish the keys, he threw her to the ground, hit her in the face, and repeatedly kicked her in the back and stomach. Price left as the police arrived, but was apprehended and arrested. Held:

1. The record refutes Price’s contention that the evidence was insufficient to sustain his conviction because the State introduced no evidence showing that the victim sustained serious bodily injury. The victim testified that Price pushed her down and hit her in the face. A paramedic who drove her to the hospital testified that the victim “had massive damage to the face, [her] left eye was swollen, [and] she had a large hematoma to the back of her head.” The victim told the paramedic that her husband had kicked her several times in the stomach and the back and hit her on the back of the head with a telephone. Photographs and other witnesses corroborated the extent of the victim’s injuries. This evidence is sufficient to support the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

In this same enumeration, Price also appears to argue that his indictment was fatally flawed because it failed to (1) allege the manner in which each of the three weapons mentioned therein delivered each injury or (2) characterize those weapons as deadly. Our law prohibits defendants from enlarging the scope of their enumerations in their briefs. Guest v. State, 229 Ga. App. 627, 628 (1) (494 SE2d 523) (1997). Were we to reach his arguments, we would reject them in any event. See Stone v. State, 229 Ga. App. 367, 370 (1) (b) (494 SE2d 48) (1997) (proof that Stone committed the crime in one of the ways alleged in the indictment was all that was required); see also Jay v. State, 232 Ga. App. 661, 662 (1) (503 SE2d 563) (1998) (when an indictment charges that the weapon used in an aggravated assault was likely to cause serious bodily injury, no reference to deadly weapons is required).

2. Price maintains that the trial court’s recharge on aggravated assault improperly defined the offense as “an attempt to commit a violent injury to the person of another.” The record shows that after the recharge, the trial court inquired whether counsel had any exceptions. Defense counsel stated, “None from the defendant.” A party cannot acquiesce to an error and then assert it on appeal. Brooks v. State, 190 Ga. App. 430, 432 (2) (379 SE2d 228) (1989). We note that the initial charge correctly stated the law and the evidence of aggravated assault was overwhelming. Willingham v. State, 268 Ga. 64, 66 (5) (485 SE2d 735) (1997); Hunley v. State, 227 Ga. App. 234, 235 (1) (488 SE2d 716) (1997); OCGA § 16-5-21 (a) (2).

3. Price argues that the trial court erred by failing to define deadly weapon in its charge or inform the jury that hands, feet, and a telephone may or may not be deadly weapons, depending upon their use. Price’s failure to request this charge in writing precludes his argument. Grice v. State, 199 Ga. App. 829, 830-831 (6) (406 SE2d 262) (1991). Moreover, Price was not charged with assault with a deadly weapon.

4. Price claims the trial court erred in reading the indictment to the jury without including an allegation that deadly weapons were involved. The indictment did not charge the deadly weapons language of OCGA § 16-5-21, and such was not required. Jay, 232 Ga. App. at 662 (1). It follows that that language would not have been in the indictment when the trial court read it to the jury and its exclusion was not error.

We observe that the trial court’s reading of the indictment also erroneously omitted language describing the weapons as “when used offensively likely to result in serious bodily injury.” But Price does not argue that this omission was error. Moreover, the evidence is overwhelming, the indictment was sent into the deliberations, and the court instructed the jury that the official charge they should consider was in the indictment. See Favors v. State, 182 Ga. App. 179, 180 (1) (355 SE2d 109) (1987).

5. Price maintains his trial counsel was ineffective for failing to object and reserve objections to the erroneous recharge on aggravated assault. See Division 2. To establish ineffectiveness, a defendant must show that trial counsel’s performance was deficient and the deficiency caused sufficient prejudice to deprive him of a fair trial. Earnest v. State, 262 Ga. 494, 496 (5) (422 SE2d 188) (1992). Such evidence must overcome the “strong presumption” that counsel’s performance fell within the wide range of reasonable professional assistance. Id. We need not reach the deficiency issue absent a showing of prejudice. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995). Here, the overwhelming evidence and the fact that the jury had the indictment during its deliberations prevent Price from establishing a reasonable likelihood that the trial’s outcome would have been different had counsel objected to the recharge. Tucker v. State, 232 Ga. App. 350, 351 (501 SE2d 868) (1998).

Judgment affirmed.

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

Decided February 23,1999

Reconsideration denied March 17,1999

William J. Mason, for appellant.

Brian S. Price, pro se.

J. Gray Conger, District Attorney, Patrick B. Moore, Assistant District Attorney, for appellee.

       The indictment charged Price with striking and kicking the victim “with his hands and feet and a telephone receiver, which when used offensively . . . [was] likely to result in serious bodily injury.”

       In an apparent slip of the tongue, the trial court characterized assault as aggravated assault. The court charged the jury as follows:
      Aggravated assault is an attempt to commit a violent injury to the person of another, an act which places another person in reasonable apprehension of immediately receiving a violent injury. A person commits the offense of aggravated assault when that person assaults another person with any object which, when used offensively against a person, is likely to result in serious bodily injury.


author: McMurray, Presiding Judge.

text:
    A99A0844.
    GREIG v. PUTNAM COUNTY et al.
    (513 SE2d 294)
   McMurray, Presiding Judge.

Appellant Victor Greig was tried in the Magistrate Court of Putnam County and convicted of four violations of Putnam County’s Zoning Ordinances of 1997. Appellant Greig filed a notice of appeal in that court specifying that he is seeking review of his judgment of conviction and sentences in the Putnam County Superior Court under OCGA §§ 15-10-41 and 15-10-65. Appellant Greig later initiated review of his judgment of conviction and sentences under these Code sections by filing a renewed petition for writ of certiorari in the Putnam County Superior Court. After sanctioning this petition under OCGA § 5-4-3, the Putnam County Superior Court dismissed appellant Greig’s efforts for appellate review via orders entered on July 23, 1998, and September 15, 1998. The Putnam County Superior Court entered an order on November 10, 1998, denying appellant Greig’s motions to extend time to file an appeal and to set aside that court’s dismissal orders. This direct appeal arose when appellant Greig filed a notice of appeal in the Putnam County Superior Court. Held:

Although appellant Greig’s notice of appeal designates that he is appealing the Putnam County Superior Court’s orders as well as his judgment of conviction and sentences in the Putnam County Magistrate Court, this Court’s jurisdiction is defined by the case sub judice’s posture as an appeal from a superior court reviewing a decision of a lower court via certiorari. Such appeals must be made via discretionary application. OCGA § 5-6-35 (a) (1). Since appellant Greig did not comply with the discretionary appeal procedures prescribed by this Code section, this Court is without jurisdiction to consider this direct appeal. The case sub judice must therefore be dismissed.

Appeal dismissed.

Andrews and Ruffin, JJ., concur.

Decided March 4,1999

Reconsideration denied March 17,1999

Roy Miller, for appellant.

Lawrence, Ford & Ridgway, Francis N. Ford, Dorothy J. Adams, for appellees.


author: Ruffin, Judge.

text:
    A98A1711.
    GEORGIA MILITARY COLLEGE v. SANTAMORENA.
    (514 SE2d 82)
   Ruffin, Judge.

Yasmin Santamorena, individually and as next friend of her daughter, H. S., a minor, sued Georgia Military College (GMC) for negligence and violation of the public duty doctrine, alleging that GMC was responsible for the rape of H. S. by a fellow student on GMC’s premises. GMC moved to dismiss plaintiff’s complaint, arguing that plaintiff’s claims were barred by sovereign immunity. The trial court denied GMC’s motion, and we granted GMC’s application for interlocutory appeal. Because plaintiff’s suit is barred by the doctrine of sovereign immunity, we reverse.

“A motion to dismiss may be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of [her] claim.” Croxton v. MSC Holding, 227 Ga. App. 179,180 (489 SE2d 77) (1997). Our review is de novo. Id.

In her complaint, plaintiff alleges that in August 1995, H. S., then age 13, was enrolled as a freshman in the high school program at GMC. Before her admission, H. S.’ parents made repeated inquiries regarding their daughter’s safety. Plaintiff claims that school officials, including Major Walter Banks, assured her that H. S. would be adequately supervised and safeguarded. Specifically, Major Banks advised that he and his wife lived in a unit near H. S., and that an adult supervisor would be assigned to H. S.’ barracks and would be available “at all times.”

According to plaintiff, when she arrived with her family at GMC on August 13, 1995, she learned that only one other high school age female would be living on campus and that she would be H. S.’ roommate. During that same visit, plaintiff alleges that Major Banks showed her H. S.’ room, which was located near his own quarters. When H. S.’ parents expressed concern that the observation window in the room’s door was painted black, Major Banks assured them that the paint would be removed and replaced with a piece of sliding cardboard. Major Banks explained that a security person would be stationed between the dormitory’s two wings and that any persons attempting to enter H. S.’ wing would be screened. Plaintiff also claims that Major Banks described a “bed-check procedure” wherein high school students were confined to their rooms at 10:00 p.m. Since school policy required new students to remain on campus for their first four weeks, plaintiff alleges that H. S. was in GMC’s custody twenty-four hours a day, seven days a week during this time period.

According to the complaint, GMC performed bed checks only during H. S.’ first week on campus. In addition, a week after H. S. arrived, and without her parents’ knowledge, H. S. and her roommate were moved to the opposite wing of the barracks, a substantial distance from Banks, where no school personnel or other students lived. The observation window in the door of the new room had “a wooden block nailed from both the inside and outside, preventing the occupants from being able to visually identify persons knocking on the door.”

Thereafter, on September 1, 1995, at approximately 10:00 p.m., H. S. was raped by a 19-year-old GMC student in her room. Plaintiff alleges that no one performed a bed check on the evening of the rape; that the supervisor for the main barracks and the female hall was not on campus at the time; and that no supervisory female was assigned in her place.

1. GMC contends that the trial court erred in denying its motion to dismiss, because plaintiff’s claim for negligence under the Georgia Tort Claims Act (GTCA) is barred by the doctrine of sovereign immunity. In addition, GMC asserts that plaintiff’s claim under the public duty doctrine is barred because that doctrine applies only to cases involving police protection. We address each of plaintiff’s claims in turn.

(a) Doctrine of sovereign immunity. The Georgia General Assembly established GMC to “be a state-wide institution dedicated to providing a high-quality military education to the youth of this state.” OCGA § 20-3-560. As a state institution, GMC is entitled to sovereign immunity except to the extent sovereign immunity has been waived. See Holloway v. Rogers, 181 Ga. App. 11,12-13 (1) (351 SE2d 240) (1986) (Georgia Academy for the Blind entitled to sovereign immunity). Plaintiff contends that GMC may be sued under the GTCA, OCGA § 50-21-20 et seq., which sets forth a limited waiver of sovereign immunity. See OCGA § 50-21-23. However, the legislature carved out an exception to this limited waiver in OCGA § 50-21-24 (7), which provides that “[t]he state shall have no liability for losses resulting from . . . [a]ssault [and] battery.” This exception to the waiver of sovereign immunity has been held to apply in rape cases. See Christensen v. State of Ga., 219 Ga. App. 10 (464 SE2d 14) (1995). Plaintiff argues that OCGA § 50-21-24 (7) does not bar her claim because it is based not upon the rape, which she describes as “incidental,” but upon the breach of the affirmative duty GMC undertook to protect H. S. while she was in its care. We do not agree.

The doctrine of sovereign immunity requires that the conditions and limitations of the statute that waives immunity be strictly followed. Applying this rule of statutory construction, the exception to the waiver of immunity covers any and all losses resulting from the torts enumerated in OCGA § 50-21-24 (7), regardless of who committed them.

(Citations and punctuation omitted; emphasis supplied.) Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 71 (1) (456 SE2d 642) (1995). In Hutchinson, a juvenile who had been declared delinquent shot his foster parent after being placed in her home by the Department of Human Resources (DHR). The parent sued DHR, “alleging that it was negligent and consciously indifferent to her safety in placing the juvenile in her home and in failing to warn her of the juvenile’s violent propensities.” Id. at 70. In holding that sovereign immunity barred the claim, we explained that

“Moss” is extensively defined in OCGA § 50-21-22 (3) and includes “any . . . element of actual damages recoverable in actions for negligence.” The focus of the exceptions to liability in OCGA § 50-21-24 (7) is not on the government action taken [or, in this case, on the actions GMC did not take], but upon the act that produces the loss.

Id. at 71-72. In Hutchinson, “the government action taken, placing the juvenile in Hutchinson’s home, itself produced no loss to her; it was the juvenile’s independent tort, one specified in OCGA § 50-21-24 (7), that resulted in Hutchinson’s injury and damages.” Id. at 72. Likewise, in the present case, GMC’s actions and omissions themselves produced no loss to H. S.; it was the other student’s independent tort that resulted in her injury and damages. Because her losses stem from the rape, we find that GMC is not subject to liability under the GTCA. See id.; Christensen, supra; OCGA § 50-21-24 (7); see also Sherin v. Dept. of Human Resources, 229 Ga. App. 621, 625 (4) (494 SE2d 518) (1997).

Plaintiff cites several federal cases construing the Federal Tort Claims Act (FTCA) for the proposition that the assault and battery exception should not apply given the special relationship between H. S. and the State. However, plaintiff’s reliance on these cases is misplaced, as those cases are based upon language in the FTCA that differs from the GTCA. The FTCA provides that its waiver of sovereign immunity “shall not apply to . . . [a]ny claim arising out of assault [or] battery.” (Emphasis supplied.) 28 USC § 2680 (h). Thus, the FTCA focuses not on the act causing plaintiff’s loss, but on the nature of plaintiff’s claim.

For instance, plaintiff cites Doe v. United States, 838 F2d 220 (7th Cir. 1988), in which parents sued to recover for injuries their children sustained when they were sexually molested while under the care of Scott Air Force Base Day Care Center. Id. at 221. There, the Court held that

[w]here the government affirmatively assumes a duty to the victim prior to the assault, and the government breaches that duty causing injury to the victim, we cannot say that her claim arises out of the assault. Rather, it arises out of the breach of that affirmative duty. The occurrence of the actual assault and battery thus serves only to establish the extent of the plaintiff’s injury, not to establish the government’s breach of duty.

(Punctuation omitted; emphasis supplied and omitted.) Id. at 223.

In construing the phrase “any claim arising out of assault [or] battery,” Doe focused on the duty allegedly breached by the government, and therefore not on the act causing the plaintiff’s loss. In contrast, under the GTCA, we do not look at the duty allegedly breached by the government, but focus on the act causing the plaintiff’s loss. See Hutchinson, supra. As this Court explained in Rhoden v. Dept. of Public Safety, 221 Ga. App. 844, 845 (1) (473 SE2d 537) (1996), plaintiffs can6not “attempt to circumvent the General Assembly’s specific refusal to waive the State’s sovereign immunity for the intentional torts enumerated under OCGA § 50-21-24 (7) by alleging negligence.” Id. Here, “[a]ny alleged losses arising from [the State’s alleged acts and omissions] were caused by the intentional acts alleged[, i.e., the rape], not negligence. The State has no liability for such losses.” Id.

(b) Public duty doctrine. Plaintiff also attempts to avoid the bar of sovereign immunity by arguing that GMC’s actions constitute a violation of the “public duty doctrine.” However, the Supreme Court in Hamilton v. Cannon, 267 Ga. 655, 656 (1) (482 SE2d 370) (1997) expressly held that “the public duty doctrine . . . does not apply outside the police protection context.” Because this case does not involve police protection, the public duty doctrine is inapplicable. See Dollar v. Dalton Public Schools, 233 Ga. App. 827, 828 (1) (c) (505 SE2d 789) (1998); Queen v. City of Douglasville, 232 Ga. App. 68, 70 (2) (500 SE2d 918) (1998).

2. Because of our holding in Division 1, GMC’s remaining enumeration concerning punitive damages under the GTCA is rendered moot.

Judgment reversed.

Pope, P. J., and Beasley, P. J., concur.

Decided March 17,1999

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, John C. Jones, Carol A. Cosgrove, Senior Assistant Attorneys General, for appellant.

Schulten, Ward & Turner, David L. Turner, for appellee.


author: Blackburn, Judge.

text:
    A98A1785.
    JONES v. WELLON.
    (514 SE2d 880)
   Blackburn, Judge.

In this action to clear title, Steven Jones appeals the trial court’s grant of summary judgment to his former attorney Robert Wellon, contending that Wellon’s lien for attorney fees against real property owned by Jones was invalid because an action on the underlying debt was time barred. As this Court is bound by the precedent of our Supreme Court, we must agree with Jones and reverse the trial court’s order.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

In this case, the material facts are not disputed. Jones hired Wellon to represent him in a divorce action. Subsequently, the attorney-client relationship deteriorated due to disagreements over representation and accumulated attorney fees, so Wellon withdrew from the representation. Wellon last provided legal services to Jones on January 22, 1991. After withdrawing, Wellon established and recorded a lien for his attorney fees under OCGA § 15-19-14 (c) against certain real property still owned by Jones. Wellon never filed suit to recover the fees or attempted to foreclose on the real property. On April 1, 1996, more than four years after the fees were claimed due, Jones filed suit to clear the lien from the title of the property, contending that the four-year statute of limitation on open accounts applicable to the underlying claim had expired, and therefore, the lien was no longer viable. OCGA § 9-3-25. On cross motions for summary judgment, the trial court granted Wellon’s motion, holding that the lien was enforceable even though suit for the underlying debt was barred by the statute of limitation. The trial court denied Jones’ motion. Jones contends that the trial court erred in so ruling.

As an initial matter, we note that this action in equity to clear title deals specifically with the viability of Wellon’s lien, not its value or enforcement. Had the latter been the case, Wellon would have been required to, at the very least, set forth evidence showing the value of his services, of which the record before us is devoid. However, as the nature of this action requires no review of such evidence, the lack of evidence in the record regarding the lien’s imposition and value does not affect this opinion. The issue of the validity of the original lien, or its value, is not before us.

Attorney liens are recognized under- the chapter of the Georgia Code dealing with liens generally, OCGA § 44-14-320 (a) (11); however, the parameters of such liens and the rights associated with them are established under a separate title and chapter of the Code dealing specifically with attorneys at law, OCGA § 15-19-1 et seq.

The right to impose an attorney lien against real property for services rendered is set forth in OCGA § 15-19-14 (c) which provides:

Upon all actions for the recovery of real or personal property and upon all judgments or decrees for the recovery of the same, attorneys at law shall have a lien for their fees on the property recovered superior to all liens except liens for taxes, which may be enforced by mortgage and foreclosure by the attorneys at law or their lawful representatives as liens on personal property and real estate are enforced. The property recovered shall remain subject to the liens unless transferred to bona fide purchasers without notice.

(Emphasis supplied.)

OCGA § 15-19-14 (d) further provides: “If an attorney at law files his assertion claiming a lien on property recovered in an action instituted by him, within 30 days after a recovery of the same, his lien shall bind all persons.” (Emphasis supplied.)

It is well established that the attorney’s lien created under OCGA § 15-19-14 (c) attaches to the fruits of the labor and the skill of the attorney, whether realized by judgment or decree, or by virtue of an award, or in any other way, as long as they are the result of his exertions.

(Punctuation omitted; emphasis in original.) Smith, Bassett, Purcell &c. v. Word of God Ministries, 234 Ga. App. 263, 264 (506 SE2d 427) (1998).

An attorney lien arises upon the attorney’s employment and is perfected at the time of the ultimate recovery of the judgment by the client. Although [Wellon] withdrew from representation prior to the final settlement, it is undisputed that [Jones] obtained title of the real property pursuant to the divorce settlement. The liens for attorney fees asserted against the real property which [Jones] recovered pursuant to the divorce [agreement] were not unlawful. See OCGA § 15-19-14 (c).

(Citations omitted.) Lipton v. Warner, Mayoue &c., P.C., 228 Ga. App. 516, 518 (2) (492 SE2d 281) (1997). In this case, however, the question remains whether the lien remained viable beyond the statute of limitation period for debts on open account.

Chapter 19 of Title 15 of the Code places no time limitation on the enforcement of an attorney lien. Likewise, Chapter 14 of Title 44, under which liens of attorneys are recognized, cannot properly be construed to create any such time constraint. OCGA § 44-14-530 (a) provides:

Liens on real property which are provided for in this chapter, other than mortgages, shall be foreclosed, when not otherwise provided for, by a compliance with his contract by the person claiming the lien and recording his claim and the commencement of an action therefor according to the provisions and requirements of Code Section 44-14-361.1.

(Emphasis supplied.) OCGA § 44-14-361.1 (a) (3), which is part of the materialmen’s lien statute, requires “[t]he commencement of an action for the recovery of the amount of the party’s claim within 12 months from the time the same shall become due.”

However,

[n]othing in OCGA § 44-14-361 authorizes its application to attorneys. By its plain terms the reach of the materialmen’s lien statute is limited to persons who have improved the property at issue. . . . The General Assembly did not elect to include attorneys in the list of persons having a special materialmen’s lien on real estate. . . . The attorney lien statute establishes the priority of attorneys’ liens and the method of enforcement. OCGA § 15-19-14. According to the statute’s plain terms, it permits but does not require enforcement of attorney liens by means of mortgage and foreclosure. OCGA § 15-19-14 (c). Nor does the statute require that suit be filed to enforce the lien within 12 months.

Hester v. Chalker, 222 Ga. App. 783, 784 (1) (476 SE2d 79) (1996).

Moreover, analysis of Chapter 19 of Title 15 of the Code also indicates that the legislature did not intend for attorney liens on real property created under OCGA § 15-19-14 to be governed by the time restrictions of Chapter 14 of Title 44. This legislative intent can be inferred from a comparison of OCGA §§ 15-19-14 and 15-19-15. “The legislature enacted a bright line rule that ‘(l)iens of attorneys at law in possession of personal property under a lien for fees [pursuant to OCGA § 15-19-15] shall be satisfied according to Code Section 44-14-550.’ ” (Emphasis in original.) Ellis, Funk, Goldberg &c., P.C. v. Kleinberger, 235 Ga. App. 360, 361 (1) (509 SE2d 660) (1998). No similar constraints were placed on liens on real property created under OCGA § 15-19-14. Clearly, if the legislature had intended for attorney liens on real property to be governed by the procedures set forth under Title 44, it would have explicitly provided therefor, as it did for liens covered by OCGA § 15-19-15.

Furthermore, review of the statutory amendments of Georgia’s attorney lien statutes indicates that such liens should be considered freestanding remedies governed by the standards of Chapter 19 of Title 15. Although liens for attorneys at law were originally provided for in conjunction with other types of liens under one chapter of the Code (Ga. L. 1873, p. 42, § 16; Code 1873, § 1989; Ga. L. 1880-1881, p. 63, § 3; Code 1882, § 1989; Civil Code 1895, § 2814; Civil Code 1910, § 3364), the legislature decided to remove attorney liens from general consideration in 1933 and place them in a completely separate Chapter and Title of the Code (Code 1933, § 9-613) which mirrors the provisions in our current statute. This segregation of the attorney lien indicates an intent by the legislature that it be treated as a special remedy for attorneys, separate and distinct from other remedies created under the Code. As such, construction of attorney liens should be generally limited to Chapter 19 of Title 15, which, as discussed above, does not place a time restriction on their enforcement.

Therefore, for all of the reasons set forth above, the imposition of an attorney lien on real property, as a separate and distinct remedy governed by Chapter 19 of Title 15 of the Code, should not be subject to extinction for failure of the attorney to bring suit to enforce it within a specific period of time.

Nevertheless, we are constrained to follow the holdings of our Supreme Court and apply its construction of the applicable statutes to the case at hand. In Peavy v. Turner, 107 Ga. 401 (33 SE 409) (1899) and Johnson v. Giraud, 191 Ga. 577, 583-584 (3) (13 SE2d 365) (1941), on which Jones bases his case, our Supreme Court has indicated that the statute of limitation for debts on open account may vitiate the validity of an attorney lien, despite the fact that it is a separate remedy distinct from the remedy of generally filing suit to recover a debt on open account. In Johnson, the Supreme Court opined:

The plaintiffs in error sought by their intervention to foreclose an attorney’s lien given to them by law under the Code, § 9-613 (3). The claim of lien was not filed and recorded within thirty days, as provided in the Code, § 9-613 (4). While originally the debt of the plaintiffs in error was in the form of an open account and was subject to the statute of limitations of four years, and had it remained in the form of an open account for a period exceeding four years it would have become barred by limitation, and if the debt is barred then the lien likewise is barred (Peavy v. Turner, [supra]), yet, as set forth in the intervention, the statute of limitations was avoided by taking a note as evidence of the debt, and no claim is here made that the note is barred by the statute of limitations. Accordingly, the ruling in Peavy v. Turner, supra, has no application, and the intervention alleges a valid lien.

Id.

In relying on Peavy, which was decided prior to the segregation of attorney liens under the Code of 1933, the Supreme Court failed to take into consideration this significant statutory alteration which occurred between Peavy and Johnson. When Peavy was decided in 1899, attorney liens were grouped with other liens subject to the time limitations of the general lien statute. By the time Johnson was decided, however, attorney liens had been segregated to a separate chapter which was no longer subject to such general time limits.

The ramification of the law as it now stands under Johnson is that attorneys are prompted to sue their clients at the earliest opportunity to receive their fees. The unfortunate bottom line is that attorneys are encouraged to sacrifice the ethical and moral ideals embodied in the lawyer-client relationship in order to protect their economic livelihood. Surely, this is not what our legislature intended, and, hopefully, outmoded common law will soon catch up to current statutory law.

Until such time as the Supreme Court corrects the Johnson holding, we have no choice but to apply Johnson to the cases before us. Here, Wellon’s attorney fees, which were protected by the lien against Jones’ real property, were based on an open account. Wellon did not bring suit against Jones within the four-year statute of limitation for open accounts. Accordingly, any action on the debt is time barred, “and if the debt is barred then the lien likewise is barred.” Johnson, supra.

Decided March 17,1999

Furlong & Franco, Leonard L. Franco, for appellant.

Martin L. Fierman, for appellee.

Judgment reversed.

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A1926.
    BUCKMON et al. v. FUTCH.
    (514 SE2d 863)
   Ruffin, Judge.

Jack Futch sued Cynthia Buckmon and Carl Buckmon, as joint administrators of the estate of Maeleather Buckmon Carter, claiming breach of contract pursuant to a public sale of land. Following a bench trial, the trial court ordered specific performance of the contract, and defendants appeal. For reasons discussed below, we reverse and remand the case for proceedings consistent with this opinion.

Oil August 25, 1997, defendants petitioned the probate court for leave to sell, at public outcry, property belonging to the estate that included three adjoining tracts of land together with a house. The petition stated that defendants wanted the sale to be conducted subject to the following conditions: (1) sale of the separate parcels first, followed by sale of the whole; (2) use of the method of sale bringing the highest bid “shall be accepted”; (3) that the sale be conducted by defendants’ attorney or other designated agent; and (4) that bidders must present “certified funds, cash, or a letter of credit.” On October 6, 1997, the probate court granted defendants’ petition and ordered that the property be sold as prescribed by the petition. The probate court further ordered that the property be sold on the first Tuesday in November 1997, “to the highest and best bidder for cash, at public outcry . . . after first advertising the same ... in the Bryan County Times”

On November 4, 1997, the property was offered for sale on the Bryan County courthouse steps. Among those in attendance were plaintiff; Barry Bacon who represented plaintiff and submitted a bid on his behalf; Wayman Hagan, a bidder; Doris Thompson, a bidder; and Ralph Chapman, plaintiff’s bank loan officer. The sale was conducted by defendants’ attorney, who read the legal advertisement and announced that the house had sustained termite damage and would be sold “as is.” Those who attended the sale gave conflicting testimony regarding whether defendants’ attorney also announced that the sale would be subject to the probate court’s approval. It is undisputed that plaintiff, through his agent, was the highest bidder at the sale, having bid $42,500 for all three lots and the house.

Shortly after the auction, the parties went to the probate office where plaintiff gave defendants’ attorney a loan commitment letter, confirming that he had secured the funds to purchase the property. Plaintiff testified that it was his understanding that defendants’ attorney would prepare the deed granting him the property. On the same day, plaintiff went to the bank and procured $42,500 in certified funds from the bank made payable to himself and to defendants’ attorney. Plaintiff delivered the check to defendants’ attorney and agreed to wait a few days before taking possession of the house so that defendants could remove personal belongings.

Three days after the auction, plaintiff went to the defendants’ attorney’s office to pick up the key to the house and learned that defendants did not want to sell the property at the auctioned price. Defendants’ attorney returned plaintiff’s check by certified mail on November 14, 1997. Plaintiff thereafter brought this suit, seeking specific performance of the contract. At trial, defendants argued, among other things, that the trial court should not order specific performance since the sale was never approved by the probate court. The trial court found that defendants’ attorney made an announcement that “the sale had to be approved by the Probate Court,” but ruled that since there was “no such provision in the laws of Georgia,” plaintiff was entitled to specific performance of the contract.

1. In two enumerations of error, defendants contend that the trial court erred in ordering specific performance because the sale was conditioned upon approval by the probate court. To the extent the trial court based its order on the erroneous legal conclusion that probate court approval cannot be made a condition of a public sale, we agree.

The trial court found that defendants’ attorney announced, prior to the auction, that the sale of the property would be subject to the probate court’s approval. Although there was conflicting testimony on this issue, we are bound by the trial court’s determination.

The finder of fact, in this case the superior court judge, is the final arbiter of the weight of the evidence and the credibility of witnesses. The judge’s findings of fact will not be disturbed on appeal as long as there is any evidence to support those findings. OCGA § 9-11-52 (a).

Hughes v. Cobb County, 264 Ga. 128, 130 (1) (441 SE2d 406) (1994). Thus, the issue on appeal is whether the trial court erred in concluding that an administrator cannot condition a public sale upon probate court approval. Since “[t]he construction of a contract is a question of law for the court,” we review this issue de novo. Sagon Motorhomes v. Southtrust Bank of Ga., N.A., 225 Ga. App. 348, 349 (484 SE2d 21) (1997).

Plaintiff first argues that the administrator’s power to make parol modifications at the time of sale are limited commensurate with the authorizing language of the probate court’s order granting the petition to sell. However, the Supreme Court has held that “[t]here is no specific requirement that an order granting leave to sell specify the terms of sale.” Adamson v. Petty, 230 Ga. 87, 89 (2) (195 SE2d 436) (1973). In Adamson, the Court also explained that while “[t]he administrator shall, however, state the terms of sale in all advertisements for sale,” it declined to strictly apply the common law rule that “printed or written . . . conditions of sale could not be contradicted, added to, or altered by verbal declarations made by the auctioneer at the time of sale.” Id. at 89-90. Indeed, the Court held that “when the bidder or purchaser has full knowledge of such altered terms, and acts upon them” it would not “exclude all parol declarations as to the altered terms of sale from the printed or written advertisements made by . . . administrators at their public sales.” (Punctuation omitted.) Id. at 90; see also Duncan v. Baggett, 247 Ga. 609, 611 (2) (277 SE2d 733) (1981) (“mere failure of the administrator to advertise specific terms of sale is not a sufficient ground to set aside the sale, where the terms of the sale were announced on the day of the sale”).

Plaintiff argues that cases wherein oral modifications at the time of sale were upheld only relate to additional terms “that enhance and complete the sale, such as extension of credit or detailed financing terms.” See, e.g., Duncan, supra (“advertisement of sale made no mention of credit[,] [y]et credit was extended at the sale”). However, nothing in these cases suggests that their holdings are limited to methods of payment after a sale. Rather, the appropriate focus is on whether “the bidder or purchaser has full knowledge of such altered terms, and acts upon them.” See Adamson, supra. Here, plaintiff came to the auction prepared to bid on the estate’s land, without having previously been advised that the conditions of sale would be altered from those enumerated in the advertisement. If plaintiff heard the defendants’ attorney condition the sale upon probate court approval, and he bid on the property with that condition in mind, he cannot complain now that he does not wish to be bound by that condition. It would then be for the probate court to decide whether it should entertain defendants’ argument that they did not obtain an adequate price for the property or whether defendants should be bound by their initial desire, as stated in their petition, that the highest bid “shall be accepted.”

It is true, as plaintiff points out, that there is no provision in Georgia law that requires a public sale to be approved by a probate court. See Smith v. Tippins, 207 Ga. 262, 270 (1) (d) (61 SE2d 138) (1950). As a general rule, “where an administrator has authority to make a sale of real estate at public auction, a contract of purchase and sale is completed upon the fall of the auctioneer’s hammer at a properly conducted sale.” Id. at 269 (1) (a). However, it is also true that nothing in Georgia law precludes an administrator from requiring probate court approval as a condition of sale.

OCGA § 53-8-23 (a) provides that the administrator of an estate may petition the court for leave to sell “[i]f at any time it becomes necessary for the payment of the debts of the estate or for the purpose of distribution to sell the real property of the decedent.” A sale without an order from the probate judge granting such a petition is void and passes no title to the purchaser. See Dowling v. Keen, 187 Ga. 394, 395 (1) (200 SE 789) (1939). OCGA § 53-8-24 governs where, when and how such a sale is to take place and sets forth the guidelines pursuant to which it first must be advertised. Nothing in either of these Code sections enumerates what conditions may be placed upon such a sale.

In determining whether an administrator can condition a public sale on probate court approval, we also look to Smith v. Tippins, supra, wherein the Supreme Court contemplated the possibility of such a condition. In that case, Tippins, one of the estate’s heirs, made the highest bid, which the administrator accepted after the property was knocked off to him. Id. at 267. Immediately thereafter, a majority of the other heirs objected to the sale because Tippins’ bid was far less than the property’s appraised value. The Court upheld the sale because it was final “upon the fall of the auctioneer’s hammer” and it was “the right and duty of [the] administrator who [was] conducting [the] public sale of property belonging to the estate of his intestate to withdraw the same from sale when it is manifest that the property is about to be sacrificed at a grossly inadequate price.” Id. at 269 (1) (a). In considering whether the heirs had a right to have the sale approved by the probate court, the Court noted that “[t]here is no statute in this State requiring confirmation of an administrator’s sale.” Id. at 270 (1) (d). The heirs argued that pursuant to the probate court’s order authorizing the sale, they had a right to such review. In dicta, the Court assumed that a probate court “may authorize an administrator to sell his intestate’s land upon that condition,” but found under the language of that order, the court had not done so. Thus, the inference is that while probate court approval is not required by law, it is not prohibited either.

Decided March 17,1999.

Lloyd D. Murray, for appellants.

Brown & Livingston, Charles H. Brown, for appellee.

Here, nothing in the probate court’s order itself authorized the sale to be conditioned upon approval of that court. However, as discussed above, while the order gives the administrator the authority to conduct the sale, there is no requirement that that order specify the conditions therein. See Adamson, supra. Thus, given that (1) an order authorizing a public sale need not contain all conditions of the sale; (2) the Supreme Court has allowed oral modifications to be made after the sale has been advertised; (3) nothing in the law prohibits an administrator from conditioning such a sale on probate court approval; and (4) the Supreme Court has contemplated the possibility that probate court approval may be had after a sale, we conclude that the trial court erred in summarily rejecting defendants’ contention that the sale was subject to probate court approval. In so concluding, we note that the trial court did not have the opportunity to determine whether plaintiff in fact heard the defendants’ attorney’s announcement and acted on it or whether the defendants’ attorney’s conduct after the sale waived any such condition. Accordingly, we reverse the trial court’s order granting plaintiff specific performance and remand the case for further proceedings consistent with this opinion.

2. Because of our holding in Division 1, we need not address defendants’ remaining enumerations of error.

Judgment reversed and remanded.

Pope, P. J., concurs. Beasley, P. J., concurs in the judgment only.

       There is no copy of the legal advertisement giving public notice of the sale in the record.

       Also on this date, defendants filed a motion with the probate court to disaffirm the public sale, stating that the $42,500 price was below the value assessed by the county tax assessor. There is no indication in the record that this motion has been ruled upon.


text:
    A98A1969.
    FRANKLIN v. UAP/GA. AG. CHEM., INC.
    (514 SE2d 241)
   Judge Harold R. Banke.

UAP/Ga. Ag. Chem., Inc. (“UAP”) sued R. D. Franklin for the unpaid balance on an open account. Franklin appeals the order granting summary judgment to UAP.

On June 19, 1994, Franklin applied for a $10,000 line of credit with UAP in the name of “R. D. Franklin.” Franklin paid his 1994 account balance in full and, during 1995, made additional purchases. Sometime in 1995, Franklin’s son, Sam Franklin, also a farmer, began to order and charge chemicals and fertilizer on his father’s account. Because cotton crop proceeds were particularly poor, the account fell into arrears. On June 28, 1996, UAP demanded payment from Franklin for $92,337.69, plus interest and attorney fees. When UAP sued Franklin, he admitted his liability for $36,507.90 but asserted he was not responsible for charges made by Sam Franklin for Sam’s business. After UAP moved for summary judgment, UAP and Franklin offered conflicting evidence as to the existence of a subsequent oral agreement which allowed Sam Franklin to make charges on his father’s account with the understanding that Sam Franklin and not Franklin would be responsible for those charges. Held:

Franklin contends that a jury must determine whether he and UAP entered into a subsequent, new parol agreement that was supported by valuable consideration. Franklin also claims that a jury must resolve whether UAP breached its agreement to issue him credit for 1996 as asserted in his counterclaim.

When reviewing summary judgments, we must construe the evidence and all inferences most favorably toward the non-movant. McDuffie v. Argroves, 230 Ga. App. 723, 724 (1) (497 SE2d 5) (1998). In this case, the parties vigorously contested whether UAP extended credit to Sam Franklin through the R. D. Franklin account with the understanding that Sam would pay for the charges incurred. See Carpenter v. Cordele Elec. Supply, 220 Ga. App. 548, 550 (3) (469 SE2d 799) (1996).

Parol evidence is admissible to prove a subsequent oral agreement that is supported by adequate consideration. American Century Mtg. Investors v. BankAmerica Realty Investors, 246 Ga. 39, 41 (2) (268 SE2d 609) (1980); see OCGA § 24-6-6 (parol evidence admissible to prove a new and distinct agreement). Both Franklin and his son testified about this agreement. Franklin offered evidence, although controverted by UAP, that the parties agreed to modify the original open account agreement. See South Atlantic Production Credit Assn. v. Gibbs, 257 Ga. 521, 523 (361 SE2d 167) (1987) (alleged oral agreement supported by consideration enforceable). Both Franklins testified that UAP agreed that Sam Franklin could make charges to the R. D. Franklin account for which Sam would be responsible. Both testified that they had entirely separate farm operations in 1995. Sam Franklin testified that whenever he ordered products from UAP, he advised either John Martin, UAP’s branch manager, or Rex Cook, a UAP salesman, that he was ordering for himself and not for his father, and that UAP agreed that he would be solely responsible for the payment thereon. Carpenter, supra at 550 (3). Notwithstanding UAP’s denial that it knew that its products were going to Sam, one UAP invoice provides, “SOLD TO: R. D. Franklin,” and instructs, “SHIP TO: For Sam Franklin.” Franklin testified that Cook knew that his son’s farming operation was entirely separate and distinct from his own. According to Franklin, both Cook and Martin made separate inquiries to him regarding his business and Sam’s business and they asked him whether Sam was in a position to pay for his purchases.

Further, Franklin testified that in January/February 1996, Harry Johnson, UAP’s regional credit manager, met with him and asked him whether he would sign a note to cover Sam’s indebtedness on this account and whether Sam had collateral he could pledge on his own behalf. Yet, if Franklin had already been contractually obligated for these charges, a note would have been superfluous. Franklin also testified that Dennis Tomlinson, UAP’s assistant credit manager, asked him whether Sam was in a position to make a payment on his portion of the account.

Without question, UAP and Franklin dispute whether the parties’ original written account agreement was, in fact, orally modified. Sam Franklin testified that UAP solicited, received, and accepted a $25,000 payment from him, not from his father, for his charges on this account. A copy of a $25,000 check made payable to UAP from the “SAM FRANKLIN FARM ACCOUNT” appears in the record. In light of the disputed evidence, a jury must determine the existence of a subsequent agreement. H. G. Hastings Co. v. Long & Patrick Nursery, 166 Ga. App. 228 (303 SE2d 768) (1983); see Marable v. Altman, 173 Ga. App. 522 (327 SE2d 504) (1985).

By concluding that the alleged oral modification was not mutually beneficial to the parties, UAP overlooks controverted evidence as well as applicable law. See Jackson Elec. Membership Corp. v. Ga. Power Co., 257 Ga. 772, 774 (1), n. 2 (364 SE2d 556) (1988). Assuming arguendo that the alleged modification is proven, UAP plainly benefited both by selling an additional $80,000 worth of products to Sam Franklin and by earning additional interest accruing at 18 percent on that extra $80,000. To decide that “Franklin’s position stayed exactly the same,” we would have to disregard the well-established principle of contract law that “consideration need not be a benefit accruing to the promisor, but may be a benefit accruing to another.” (Punctuation omitted.) Owens v. Svc. Fire Ins. Co. &c., 90 Ga. App. 553, 556 (1) (83 SE2d 249) (1954); see Porter Fertilizer Co. v. Brewer, 36 Ga. App. 329, 330 (136 SE 477) (1927). Moreover, Franklin testified that Cook suggested he permit his son to make purchases on his account in view of Sam’s difficulties in obtaining funds for the 1995 crop year. In any event, the Supreme Court implicitly disapproved the archaic notion of “mutuality of obligation.” Jackson Elec. Membership Corp., 257 Ga. at 774 (1).

Decided March 17,1999.

Donald D. Rentz, for appellant.

Gardner, Willis, Sweat & Goldsmith, Deena L. Plaire, Lewis R. Lamb, for appellee.

Although UAP contends that it received no benefit and Franklin no loss in connection with the alleged modification, the record shows otherwise. Slight consideration is sufficient to sustain a contract. Wolfe v. Breman, 69 Ga. App. 813, 817 (1) (26 SE2d 633) (1943). Where mutual promises are given, each promise is itself consideration for the return promise. Philips Audio Video Systems Corp. v. Bateman, 160 Ga. App. 12, 14 (285 SE2d 747) (1981). By permitting $80,000 in additional charges by Sam to be made to Franklin’s account and by obtaining thousands of dollars of additional interest accruing at a daily rate of .04931 percent, UAP plainly would have benefited from this arrangement.

Part performance, the doing of contemplated acts, can furnish the required consideration and mutuality otherwise lacking. Roberson v. Eichholz, 218 Ga. App. 511, 513 (2) (462 SE2d 382) (1995). Here, the undisputed evidence shows that Sam Franklin received UAP products charged to the R. D. Franklin account, and UAP received and accepted a $25,000 payment from Sam Franklin for the R. D. Franklin account. In light of the disputed testimony, here, as in Jackson Elec. Membership Corp., summary judgment must be reversed.

Judgment reversed.

Beasley, P. J., and Ruffin, J., concur.

       The material facts are too controverted for us to determine as a matter of law the possible applicability of OCGA § 13-5-30 (2) and (7) to either the claim or to the counterclaim.

       Sam Franklin testified that in 1994, Cook had solicited sales from him but that he declined to make purchases from UAP in 1994 because he had made credit arrangements with another supplier.