text:
    76788.
    BOHANNON et al. v. FUTRELL. BOHANNON v. FUTRELL. WILSON et al. v. FUTRELL.
    76789.
    76790.
    (375 SE2d 637)
   Benham, Judge.

Appellant Suzanne Bohannon was a passenger in an automobile driven by appellant Katherine Wilson in February 1985 when it was struck by a vehicle driven by Futrell. The women filed suit a month later against Futrell and his employer, seeking damages for their injuries, and their husbands sought recompense for medical expenses and loss of consortium. The tortfeasor’s employer was granted summary judgment following this court’s opinion in Aubrey Silvey Enterprises v. Bohannon, 182 Ga. App. 738 (356 SE2d 693) (1987). Shortly thereafter, appellee J. C. Penney Casualty Insurance Company (J. C. Penney), the uninsured motorist carrier (UMC) for the Wilsons, and appellee State Farm Mutual Automobile Insurance Company (State Farm), the UMC for the Bohannons, were served with copies of the actions (in Case No. 76790 in June 1987, and in Case Nos. 76788 and 76789 in August 1987). Citing the failure of appellants to serve the UMCs within the two-year statute of limitation for personal injury (OCGA § 9-3-33), the trial court granted the motions to dismiss State Farm from Case No. 76788, and J. C. Penney from Case Nos. 76788 and 76790. J. C. Penney was also dismissed from Case Nos. 76788 and 76789 on the ground that it was not the primary UMC for the plaintiffs in those cases. See Georgia Farm &c. Ins. Co. v. State Farm &c. Ins. Co., 255 Ga. 166 (336 SE2d 237) (1985). These appeals are from the trial court’s dismissal of the UMCs from the various lawsuits.

1. OCGA § 33-7-11 (d) states that “[i]n cases where the owner or operator of any vehicle causing injury or damages is known, and either or both are named as defendants in any action for such injury or damages, a copy of the action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy [containing uninsured motorist coverage] as though the insurance company were actually named as a party defendant.”

An uninsured motorist carrier is entitled to service under OCGA § 33-7-11 (d) within the time allowed for service on the defendant in the tort action. Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976). This court has since applied that holding to affirm summary judgments granted to insurers on whom service was not made within the period of limitation. Williams v. Thomas, 183 Ga. App. 51 (2) (357 SE2d 872) (1987). This court has also affirmed the trial court’s grant of the UMC’s motion to dismiss for failure to be served within the appropriate statute of limitation. Harris v. Allstate Ins. Co., 179 Ga. App. 343 (347 SE2d 368) (1986). The statute of limitation is two years for injuries to the person and four years for personal injury involving loss of consortium. OCGA § 9-3-33. Copies of the pleadings served on the UMCs in June and August 1987 were not timely insofar as the claims for personal injury from the February 1985 collision were concerned, but were “within the time allowed for service” insofar as the loss of consortium claims were concerned. OCGA § 9-3-33. Cf. Central of Ga. R. Co. v. Harbin, 132 Ga. App. 65 (207 SE2d 597) (1974). Therefore, the trial court did not err in dismissing the UMCs from the personal injury portions of the lawsuits but did err in dismissing the UMCs from the loss of consortium portions of the lawsuits.

Appellants argue that they did not have the right to add their UMCs as parties to the actions until it was ascertained (by way of this court’s opinion in Aubrey Silvey Enterprises v. Bohannon, supra), that the tortfeasor did not have sufficient insurance coverage. Therefore, they reason, it was not possible to serve appellees prior to the determination that the tortfeasor was underinsured, and it was inappropriate for the trial court to dismiss the UMCs for appellants’ failure to do the impossible.

Appellants’ argument is based upon a misperception of the law. OCGA § 33-7-11 (d) requires service on the UMC by duplicate original copy of the pleadings filed against the owner and/or operator of the vehicle causing the injury or damage. A plaintiff’s compliance with OCGA § 33-7-11 (d) does not make the UMC a party to the lawsuit. Commercial Union Ins. Co. v. Wraggs, 159 Ga. App. 596 (1) (284 SE2d 19) (1981); Vaughn v. Collum, 136 Ga. App. 677, 679 (222 SE2d 37) (1975). See also Knight v. Ga. Farm &c. Ins. Co., 184 Ga. App. 312 (361 SE2d 190) (1987); Chapman v. Burks, 183 Ga. App. 103 (357 SE2d 832) (1987); Moss v. Cincinnati Ins. Co., 154 Ga. App. 165 (268 SE2d 676) (1980); Home Indem. Co. v. Thomas, 122 Ga. App. 641 (178 SE2d 297) (1970). Once so served, the statute gives the UMC the right to participate directly in the proceedings by filing pleadings in its own name, thereby assuming the status of a party, or it may participate indirectly by filing pleadings in the name of the owner or operator of the injury-causing vehicle, thereby avoiding becoming a named party to the proceedings. Smith v. Phillips, 172 Ga. App. 459, 461 (323 SE2d 669) (1984). The UMC may also choose not to file any pleadings in the tort action. See Knight u. Ga. Farm &c. Ins. Co., supra. No judgment can be entered against the UMC in a tort action in which the UMC has been served by duplicate original if the UMC has not chosen to participate directly. Smith v. Phillips, supra, Division 1. Since a UMC does not become a party upon being served with a duplicate original of the action against the tortfeasor, a plaintiff need not have a cause of action against the UMC to so serve the UMC.

Implicit in appellants’ position is the belief that the UMC need not be served with a duplicate original until it has been ascertained that there is an uninsured motorist involved. The service requirement of OCGA § 33-7-11 (d) should instead be read as a statutory prerequisite a plaintiff must fulfill in order to collect uninsured motorist benefits from the UMC following a tort judgment in favor of the plaintiff. Because the UMC may be liable for the amount which a plaintiff/ insured “shall be legally entitled to recover” from an uninsured motorist/tortfeasor, and because a tortfeasor may become “uninsured” subsequent to the injury-causing collision (see, e.g., OCGA § 33-7-11 (b) (1) (D) (ii, iii, iv)), the UMC is entitled to statutory notice of the existence of a lawsuit in which it ultimately may be held financially responsible. If the UMC is not made aware by service pursuant to OCGA § 33-7-11 (d) of the existence of a lawsuit in which it might become financially responsible, the plaintiff/insured will not be able to recover from the UMC. See, e.g., Williams v. Thomas, supra; and Harris u. Allstate Ins. Co., supra, and cases cited therein. Therefore, it behooves a plaintiff who suffers injury as a result of the operation, maintenance, or use of a motor vehicle to have his UMC served with a duplicate original of the action filed against the owner/operator of the injury-causing motor vehicle at the time the action against the owner/ operator is filed, in order to protect his ability to collect insurance proceeds from the UMC should the tortfeasor be or become an uninsured motorist.

2. Appellants maintain that under the auspices of OCGA § 9-11-15 (c), service of the various complaints on the UMCs involved should relate back to the dates of the original filing of the complaints against the tortfeasor and his employer. Even assuming that OCGA § 9-11-15 (c) applies to OCGA § 33-7-11 (d) as it does to the statute of limitation, we disagree with appellants.

“[A]n amendment relates back to the date of the original pleadings if: (1) the claim asserted in the amendment arises out of the conduct, transaction, or occurrence set forth in the original pleading; (2) the party sought to be added has received during the period of limitation such notice of the institution of the action that he will not be prejudiced in maintaining a defense on the merits; and (3) the party sought to be added knew or should have known during the period of limitation that, but for a mistake concerning the identity of the proper party, the action would have been brought against it. [Cits.]” Rose v. Kosilla, 185 Ga. App. 217 (2) (363 SE2d 623) (1987). Assuming that the first condition has been satisfied, there is no evidence that the second and third conditions have been met. Appellants suggest appellees were, or should have been, aware of the existence of a potential uninsured motorist claim against them by the fact that their insureds sought personal injury protection benefits from them. Be that as it may, an application for PIP benefits does not put an insurance carrier in receipt of notice of the institution of an action, and that is what OCGA § 9-11-15 (c) requires. Inasmuch as the conditions for relation back of amendments under OCGA § 9-11-15 (c) have not been met, the trial court did not err in failing to apply the statute to the cases at bar. Rose v. Kosilla, supra; Commercial Union Ins. Co. v. Wraggs, supra; Vaughn v. Collum, supra, 136 Ga. App. 677, 678.

This court’s decision in Yarbrough v. Dickinson, 183 Ga. App. 489 (359 SE2d 235) (1987), does not demand a contrary result. Even if a timely-served UMC is awarded summary judgment on the ground that there is no uninsured motorist involved (as was the situation in Yarbrough), that UMC has been given the OCGA § 33-7-11 (d) notice which would also serve as a basis for permitting the relation back under OCGA § 9-11-15 (c) of a complaint subsequently filed if and when the tortfeasor became an uninsured motorist.

In sum, appellants’ failure to comply with OCGA § 33-7-11 within the two-year limitation period for personal injury was a sufficient ground for the trial court to dismiss the UMCs from those portions of the various lawsuits. However, the counts in Case Nos. 76788 and 76790 alleging loss of consortium have a four-year statute of limitation, and the UMCs were served with duplicate originals “within the time prescribed by law.” Thus, appellees should not have been dismissed from those lawsuits for noncompliance with OCGA § 33-7-11 (d).

3. As stated earlier, J. C. Penney was dismissed from Case Nos. 76788 and 76789 because it was not the Bohannons’ primary UMC. Under the Supreme Court’s holding in Georgia Farm &c. Ins. Co. v. State Farm &c. Ins. Co., supra, the insurance company receiving the premium from the injured party is responsible for compensating the injured party. However, a plaintiff may “stack” multiple policies of uninsured motorist benefits of which he is the beneficiary where the tortfeasor is minimally insured. Lewis v. Atlanta Cas. Co., 179 Ga. App. 185 (1) (345 SE2d 858) (1986). A tortfeasor’s motor vehicle is “uninsured” if the “[b]odily injury liability insurance and property damage liability insurance [have] limits of coverage which are less than the limits of the uninsured motorist coverage provided under the insured’s insurance policy, but the motor vehicle shall only be considered to be uninsured for the amount of the difference between the limits of the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle and the limits of the uninsured motorist coverage provided under the insured’s motor vehicle insurance policy. . . .” OCGA § 33-7-11 (b) (1) (D) (ii) (1986). Under this, the applicable version of the statute, “recovery of under-insured motorist coverage is limited to the amount of the difference between the limits of the coverage on the tortfeasor’s automobile and that of the insured’s motor vehicle policy. [Cits.] . . . [T]he amount actually recovered under the tortfeasor’s policy is irrelevant in determining the availability of uninsured motorist coverage.” Harwell v. Continental Ins. Co., 183 Ga. App. 410, 412 (359 SE2d 172) (1987). We are unable to ascertain from the appellate records before us the limits of the tortfeasor’s policy, the limits of the Bohannons’ policy with State Farm, or the limits of the J. C. Penney policy issued to the Wilsons. If the amount of the uninsured motorist coverage available to appellant John Bohannon under his State Farm policy is greater than the limits of Futrell’s policy, it was error to dismiss State Farm from the loss of consortium count in Case No. 76788. If the amount of uninsured motorist coverage available to John Bohannon from his State Farm policy and the Wilsons’ J. C. Penney policy is greater than the tortfeasor’s liability coverage, State Farm will be initially responsible for the difference. However, should that policy be exhausted before the difference is eliminated, the J. C. Penney policy coverage would take effect. Lewis v. Atlanta Cas. Co., supra. If, however, the aggregate State Farm and J. C. Penney coverage is less than or equal to the tortfeasor’s liability coverage, dismissal of the UMCs was appropriate. Harwell v. Continental Ins. Co., supra.

In Case No. 76789, appellant John Bohannon filed a separate suit to recover medical costs expended on his wife’s behalf and for loss of consortium. Only the Wilson’s UMC, J. C. Penney, has been served with a duplicate original of that suit. As that suit presently stands, J. C. Penney was entitled to dismissal if the tortfeasor’s liability coverage was equal to or greater than the aggregate amount of the uninsured motorist coverage available from the State Farm and J. C. Penney policies. Without knowledge of the policies’ limits, we must remand Case Nos. 76788 and 76789 to the trial court with direction that the coverage limits be ascertained and the appropriate judgments entered.

Judgments affirmed in part and cases remanded with direction in Case Nos. 76788 and 76789. Judgment affirmed in part and reversed in part in Case No. 76790.

McMurray, P. J., and Pope, J., concur.

Decided November 8, 1988 —

Rehearing denied November 21, 1988

Jack F. Witcher, John E. Gilchrist, for appellants.

Johnson Beckham & Price, J. Eugene Beckham, Rogers, Macgruder, Hoyt, Sumner & Brinson, J. Clinton Sumner, Jr., Tisinger, Tisinger, Vance & Greer, David H. Tisinger, Downey, Cleveland & Parker, Robert H. Cleveland, Dickens & Irwin, Jeffrey S. Gilbert, Murphy, Murphy & Garner, Michael L. Murphy, Mundy & Gammage, E. Lamar Gammage, Jr., for appellees.


source: Caselaw Access Project

author: Birdsong, Chief Judge. Banke, Presiding Judge,

license: Public Domain

text:
    76818.
    ADAMS v. THE STATE.
    (375 SE2d 642)
   Birdsong, Chief Judge.

Appellant, Richard Adams, was arrested on July 11, 1987, and charged with the offenses of driving under the influence and failure to obey a traffic control device. He was issued two uniform traffic citations (UTCs) which directed him to appear in the Duluth Recorder’s Court on August 11, 1987. The UTCs were filed in the Duluth “City Court” and appellant appeared and filed a bond and a demand for trial under OCGA § 17-7-170 in the city court on August 11, 1987. The appellant was “bound over to answer the charges” and his case was transferred to the Gwinnett State Court. An accusation was filed by the solicitor’s office of the state court on September 9, 1987, alleging two counts of DUI and one count of a “red light violation.” On November 12, 1987, appellant filed a motion to dismiss in the Gwinnett State Court in which he alleged he had filed “a Demand for Speedy Trial ... in this Court.” Following a hearing, the state court granted appellant’s motion. On motion for reconsideration, the trial court reversed itself, stating that it had made a mistake of fact, i.e., it assumed appellant’s attorney had “physically deposited a copy” of the motion with the clerk of the state court, but in fact the attorney had only mailed a copy to the solicitor’s office before the case was transferred from the Duluth City Court to the Gwinnett State Court. The trial court reversed his decision and denied the motion. Appellant filed this direct appeal. Held:

1. Although this case is pending trial in the court below and a direct appeal has been taken from an interlocutory ruling, this court (Smith v. State, 169 Ga. App. 251 (1) (312 SE2d 375)) and the Supreme Court (Hubbard v. State, 254 Ga. 694 (333 SE2d 827)) have held a criminal defendant is not required to follow the interlocutory procedure when appealing, prior to trial on the merits, a denial of his plea in bar based on OCGA § 17-7-170.

2. A demand for trial under OCGA § 17-7-170 must be filed with the clerk at the term in which the indictment or accusation is filed or at the next succeeding regular court term, or thereafter by special permission of the court. If the accused is not tried during the term in which the demand is made, or at the next succeeding term, “provided at both court terms there were injuries impaneled and qualified to try him, he shall be absolutely discharged and acquitted. ...” OCGA § 17-7-170 (a) (b). Implicit in the wording of this statute is that such a motion is applicable only in courts which have terms and impanel juries; otherwise if the motion was filed in a court which has no terms (i.e. traffic court, mayors’ court, police court, recorder’s court, etc.), it would be impossible to determine if it was timely filed (i.e. “at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter”), or whether the statutory period in which the trial must be held has run (i.e. “the person is not tried [in the term] when the demand is made or at the next succeeding regular court term thereafter . . .”). Likewise, the court in which the demand is filed must also impanel juries, because the trial must occur in a term where “there were juries impaneled and qualified to try him. . . .”

In the instant appeal, although the traffic citation was returnable to the recorders court (see Ga. L. 1958, pp. 3148, 3153, that court was succeeded by the Duluth City Court (see Ga. L. 1976, pp. 4556, 4557), which in turn is now replaced by the Duluth Municipal Court (OCGA § 36-32-1, and Art. VI, Sec. X, Par. I, Ga. Const, of 1983). Accordingly, when the demand for trial under OCGA § 17-7-170 was filed in the Duluth City Court, which does not impanel juries or hold jury trials (see OCGA § 40-13-23), transfer from that court to the Gwinnett State Court was required.

3. Code § 17-7-170 was amended by the 1987 General Assembly and was effective July 1, 1987. The offenses in the case at bar occurred July 11, 1987, and the demand for trial was made on August 11, 1987. Thus, the statute, as amended, applies and it provides that “the demand for trial shall be served on the prosecutor and shall be binding only in the court in which the demand is filed, except where the case is transferred from one court to another without a request from the defendant.” OCGA § 17-7-170 (a). The demand was filed in the Duluth City Court and was never filed with the clerk of the Gwinnett State Court, although a copy of the demand was sent to the State Court prosecutor. But, that copy showed the case was filed in the Duluth City Court. Thus, the demand was ineffective as to the State Court because it was “binding only in the court in which the demand is filed.” OCGA § 17-7-170 (a).

This leaves in issue whether the transfer was made “without a request from the defendant.” OCGA § 17-7-170 (a). Only one conclusion is permissible. The transfer was made only because of the demand from the defendant under OCGA § 17-7-170, which section is applicable only to courts in which juries are impaneled. The Duluth City Court did not impanel juries and was required by the request to transfer defendant’s demand to a court which did impanel juries. The transfer was by request of the defendant. Accordingly, the trial court did not err in denying appellant’s motion for discharge and acquittal.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur specially.

Banke, Presiding Judge,

concurring specially.

Prior to the 1987 amendment to OCGA § 17-7-170 (a), this court held, in Majia v. State, 174 Ga. App. 432 (330 SE2d 171) (1985), and Collins v. State, 154 Ga. App. 651 (269 SE2d 509) (1980), “that a defendant’s right to file a demand for trial with respect to a charge for which he had been arrested and issued a uniform traffic citation commenced upon the return of the citation to recorder’s court, even though the recorder’s court did nothing more than transfer the case to state court for trial. These two cases would appear to stand for the general proposition that an accusation embodied in an existing uniform traffic citation is ‘found’ within the meaning of [the former version of] OCGA § 17-7-170 (a) at the moment any court which is lawfully entitled to do so asserts its jurisdiction over the case.” State v. Spence, 179 Ga. App. 750, 752 (347 SE2d 612) (1986). But see Keller v. State, 183 Ga. App. 717, 719 (359 SE2d 714) (1987), holding that “it is not until the traffic violations bureau loses jurisdiction to the state court under OCGA § 40-13-62 that a uniform traffic citation becomes an accusation and is ‘found’ for purposes of [the former version of] OCGA § 17-7-170.”

The 1987 amendment to OCGA § 17-7-170 (a) eliminated the word “found” from the statute and substituted in its place the words “filed with the clerk” was “filed.” In addition, the amendment substituted for the requirement that “the demand for trial shall be placed on the minutes of the court” the proviso that “the demand for trial shall be served on the prosecutor and shall be binding only in the court in which the demand is filed, except where the case is transferred from one court to another without a request from the defendant.”

In light of these amendments, I believe it is now clear (if it was not clear before) that the Legislature contemplated that a demand for trial would be effective to invoke the statutory sanction of mandatory acquittal only if filed in a court of record having both regular terms and the authority to impanel juries. Consequently, I would hold that the demand filed in the recorder’s court in the present case was ineffective to invoke the statutory sanction of acquittal. The majority reaches the same result but does so by interpreting the 1987 amendment in such manner as to place the defendant in a “Catch-22” situation, holding, in effect, that a defendant is entitled to file a demand for trial in recorder’s court but that by doing so he is requesting that the case be transferred to a court having regular terms and the authority to impanel juries, with the result that upon such transfer the demand becomes invalid.

Decided November 8, 1988 —

Rehearing denied November 21, 1988.

Collar & Roberts, Mickey G. Roberts, for appellant.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Assistant Solicitor, for appellee.

I am authorized to say that Judge Beasley joins in this special concurrence.


author: Benham, Judge.

text:
    76824.
    MOORE v. BARFIELD.
    (375 SE2d 623)
   Benham, Judge.

This appeal raises the issue of what remedies are available to a party whose suit is dismissed because of the actions of that party’s own attorney at a time when the attorney is ill.

Appellant was injured in a collision between her car and one driven by appellee. She employed an attorney named Jarnagin to represent her, and he filed suit on her behalf. Appellee was served on January 7, 1987, and answered on January 26, 1987, though he served appellant’s attorney with interrogatories on January 21, 1987. On April 18, 1987, appellant spent some four hours entering answers to the interrogatories into her attorney’s computer at his home. He did not tell her then, or thereafter, that the answers were already late or that there were any problems with the suit. On April 27, 1987, Jarnagin was served with a motion to compel discovery and to impose sanctions. That motion was supported by copies of appellee’s attorney’s letters to appellant’s attorney seeking responses to the interrogatories. The office of the clerk of the trial court sent appellant’s counsel a notice on June 2, 1987, that appellee’s motion would be decided on the briefs since there had been no request for a hearing. Pursuant to the request therefor in appellee’s motion, the trial court entered an order that was filed on June 19, 1987, dismissing appellant’s complaint as a sanction for totally failing to answer the interrogatories. Jarnagin’s former partner notified appellant by letter dated July 2, 1987, that her action had been dismissed. On the same day, that attorney filed a motion in the trial court seeking to set aside the judgment. The motion was accompanied by an affidavit from a psychiatrist who averred that he had treated Jarnagin for depression, and that the depression was characterized by an inability to work. In further support of her motion, appellant swore that she stayed in contact with her attorney throughout his employment and that he assured her on every occasion that her suit was progressing appropriately. Jarnagin’s former partner also swore that he was aware of Jarnagin’s personal and professional problems; that after they dissolved their partnership, they continued to share office space, but that Jarnagin had come to the office less and less; and that Jarnagin had eventually left and he did not know Jarnagin’s present whereabouts.

Noting that the motion to set aside was filed outside the term in which the dismissal was filed, the trial judge stated that she had no discretion to exercise in setting aside the judgment, and entered an order denying appellant’s motion. This appeal followed our order granting appellant’s application for discretionary appeal.

1. In her first enumeration of error, appellant contends that Jarnagin’s repeated assurances that the case was progressing appropriately when, in fact, it was foundering, was such a fraud as would authorize setting aside the dismissal under OCGA § 9-11-60 (d) (2). That argument is controlled adversely to appellant by Marsh v. Way, 256 Ga. 46, 48 (343 SE2d 686) (1986), in which the Supreme Court held that the fraud which will justify setting aside a judgment is that of the other side of the suit. The first enumeration of error is without merit.

2. Appellant’s second enumeration, directed to the trial court’s rejection of appellant’s assertion that her attorney’s failure to comply with the discovery request was an accident or mistake within the meaning of OCGA § 9-11-60 (d) (2), is equally without merit. This court has held that an “accident” is an event which is not proximately caused by negligence, but arises from an unforeseen or unexplained cause. Chadwick v. Miller, 169 Ga. App. 338 (1) (312 SE2d 835) (1983). Since the failure to file answers to appellee’s interrogatories is not unexplained and, from the record in this case, appears to have as its cause Jarnagin’s neglect of appellant’s suit, that ground is not available to appellant. Similarly, since the mistake here is one by appellant’s own attorney, that ground will not serve to authorize setting aside the judgment under OCGA § 9-11-60 (d) (2). McCullough v. Molyneaux, 163 Ga. App. 352 (3) (294 SE2d 560) (1982).

3. In her fourth and sixth enumerations of error, appellant complains of the entry of the order dismissing her suit without a hearing and of the failure of the trial court to hold a hearing on the issue of the attorney fees sought by appellee in his motion for sanctions. As with the other problems in this case, it is clear that it was because of appellant’s attorney’s default that she did not have an opportunity to appear before the trial court prior to the dismissal of her suit. Appropriate service of the motion was made by mail on appellant’s attorney of record, and notice was given under USC Rule 6.3 that the motion would be decided on the briefs. Since no attorney fees were awarded to appellee, there was no reason to conduct a hearing on that issue.

4. The fifth error which appellant asserts was committed below is premised on Jarnagin’s violation of his ethical responsibilities to her. Appellant contends that Jarnagin’s conduct constituted abandonment of her cause, leaving her unrepresented. That being so, she contends that service on Jarnagin was not sufficient and that the motion which led to dismissal and the order of dismissal itself should have been served on her directly. Since, as appellee points out, neither appellee nor the trial court had any way to know that Jarnagin was not performing as he should have, and he remained attorney of record until after the dismissal, appellant’s asserted rights as a pro se litigant never arose. We find no merit in this enumeration of error.

5. One of the grounds raised by appellant in the trial court was the mental incompetency of her attorney. In support of that ground, she cited Green v. Blankinship, 101 Ga. App. 257 (113 SE2d 503) (1960). There, a defendant’s attorney sat mute in the courtroom while opposing counsel took a judgment. The defendant moved out-of-term for the judgment to be set aside, and the trial court did so. On appeal, in affirming the order setting aside the judgment, this court held that the rule that a trial court cannot, after the term at which an order is entered, set aside the order except for defects appearing on the face of the record, has an exception: when the party can make the same excuses for delay that must be shown in making an extraordinary motion for new trial, it is proper to apply the same rules that apply to such a motion.

“The grant or refusal of an extraordinary motion for new trial lies within the sound discretion of the trial judge. In the cases of extraordinary motions, the discretion of the judge is not unlike that in cases of motions made at the term to which the judgment complained of was entered. [Cit.] This discretion must be exercised as to whether good reason is shown why the motion was not made during the term. [Cit.]” Slusser v. Williams, 100 Ga. App. 599, 601 (112 SE2d 7) (1959). Here, as in Green, the movant showed that she was deprived of her day in court, that she had a meritorious case, and that she brought the facts to the court’s attention immediately upon discovering them. We hold, therefore, that the trial court in this case should have followed Green and, applying to appellant’s motion the rules applicable to an extraordinary motion for new trial, exercised discretion. We do not imply by our holding that the trial court should set aside the judgment against appellant, only that appellant has made a sufficient showing to invoke the discretion of the trial court concerning whether that showing warrants setting aside the judgment.

Decided November 1, 1988 —

Rehearing denied November 21, 1988

Robert L. Herman, David A. Sleppy, for appellant.

Harper & Cooper, Gary M. Cooper, for appellee.

Where, as here, a trial court erroneously fails to exercise its discretion, the proper remedy is to reverse the judgment and remand the case to the trial court for the exercise of its discretion. Spyropolous v. John Linard Estate, 243 Ga. 518 (255 SE2d 40) (1979).

Judgment reversed and case remanded.

McMurray, P. J., and Pope, J., concur.


text:
    76841.
    FLOURNOY v. AKRIDGE et al.
    (375 SE2d 479)
   Benham, Judge.

Appellant, a former employee of the Georgia Department of Community Affairs, sued appellees, the director of the Community Development Division of the department and the commissioner of the department, in the Superior Court of DeKalb County. Appellant’s complaint alleged that his termination was racially motivated and that it violated his civil rights, based on 42 USCA § 2000e et seq. (Title VII) and 42 USCA §§ 1981 and 1983. Appellees answered the complaint, alleging that the state court did not have subject matter jurisdiction over the federal claims. After discovery, appellees moved for summary judgment on the grounds that federal courts have exclusive jurisdiction of Title VII claims (See 42 USCA § 2000e-5 (f) (3); Valenzuela v. Kraft, Inc., 739 F2d 434 (9th Cir. 1984)); that the suit was not timely filed (it was not filed within 90 days of the issuance of the “Right to Sue” notice); and that appellant failed to exhaust his remedies under OCGA §§ 45-20-8 and 45-20-9 (he did not seek review of his adverse decision from the State Personnel Board by filing an appeal in superior court within 30 days of that decision). The trial court ruled in appellees’ favor on the motion for summary judgment, finding that “it lacks jurisdiction over the subject matter of this case for the reasons asserted by defendants in their motion.” Appellant brings this appeal, claiming that state and federal courts have concurrent jurisdiction over Title VII claims and that his claims under 42 USCA §§ 1981 and 1983 are not precluded by the federal doctrines of repose or res judicata.

1. We agree that the trial court did not have subject matter jurisdiction over appellant’s Title VII claim. The statute states that “[e]ach United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter.” 42 USCA § 2000e-5 (f) (3). Although the 11th Circuit has not yet addressed the question of how that statutory language is to be interpreted, other circuit courts have held that it grants jurisdiction in Title VII cases exclusively to federal courts. See, e.g., Bradshaw v. Gen. Motors Corp., 805 F2d 110, 112 (3rd Cir. 1986); Jones v. Intermountain Power Project, 794 F2d 546, 553 (10th Cir. 1986); Valenzuela v. Kraft, supra. State courts that have considered the issue have reached the same conclusion as the circuit courts. See, e.g., Retired Public Employees Assn. v. Bd. of Admin. &c. Systems, 229 Cal.Rptr. 69, 74 (184 Cal App.3d 378) (1986); Fox v. Eaton Corp., 48 Ohio St.2d 236 (358 NE2d 536, 537) (1976). The weight of authority being that jurisdiction does not exist in the state courts for Title VII actions, we affirm the trial court’s ruling on that issue. See Favors v. Alco Mfg. Co., 186 Ga. App. 480 (1) (367 SE2d 328) (1988).

2. Subject matter jurisdiction is vested in the state courts for actions brought under 42 USCA §§ 1981 and 1983. See City of Cave Spring v. Mason, 252 Ga. 3, 4 (310 SE2d 892) (1984); Spencer v. McCarley &c. Storage, 174 Ga. App. 525 (330 SE2d 753) (1985). The question before us is whether appellant is precluded from pursuing his federal law claims in state court because he did not seek judicial review of his adverse State Personnel Board decision. The answer to that question is “no.” OCGA § 45-20-9 (h) states that “[a]ny party . . . who has exhausted all administrative remedies available before the [State Personnel] board and who is aggrieved by a final decision or order of the board on any hearing may seek judicial review of the final decision or order of the board in the superior court of the county of the place of employment of the employee.” (Emphasis supplied.) Appellant did exhaust his administrative remedies, i.e., he followed the steps for appeal before the appropriate state boards. Compare Irvin v. Jenkins, 233 Ga. 16 (209 SE2d 610) (1974), in which the complainant did not complete the required four steps for administrative disposition of the matter. Seeking judicial review of the administrative findings is an option that the aggrieved party can exercise once he has completed the administrative process, but he is not required to do so. Bennett v. Board of Trustees &c., 258 Ga. 201 (3) (366 SE2d 287) (1988), upon which appellees rely, does not stand for the proposition that a complainant must appeal his adverse State Personnel Board decision to superior court within 30 days and that the failure to do so bars later relitigation of the issues in superior court. It only says that before one can raise the issues in the judicial forum, the administrative remedies must have been exhausted. Appellant has done so. Compare Bailey v. Wilkes, 162 Ga. App. 410 (2) (291 SE2d 418) (1982), in which appellant attempted to bypass the State Personnel Board remedies and go straight to state court.

Decided October 25, 1988 —

Rehearing denied November 21, 1988

Action on employment. DeKalb Superior Court. Before Judge Hunstein.

Rumsey & Rumsey, Penelope W. Rumsey, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, for appellee.

Appellee contends that the recent United States Supreme Court decision in University of Tenn. v. Elliott, 478 U. S. 788 (106 SC 3220, 92 LE2d 635) (1986), supports its position that appellant was required to appeal the state administrative decision to superior court instead of bringing a § 1981 and § 1983 action. We do not read that case in the same way. It held that “when a state agency ‘acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate’ [cit.], federal courts must give the agency’s factfinding the same preclusive effect to which it would be entitled in the State’s courts.” 92 LE2d 646-647. The record does not show that appellant had adequate opportunity to litigate in the state agency hearings the issues he raised in his lawsuit, i.e., his termination because of his race, the exercise of his right to free speech, and his apolitical status. Appellees’ assertion that “race did come up in the hearing” is not sufficient to show that the parties had an adequate opportunity to litigate the issues. Since appellant did not previously have the opportunity to litigate the issues he attempted to raise in his present action, the trial court erred in granting appellees’ motion for summary judgment as to his § 1981 and § 1983 claims.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Pope, J., concur.


text:
    77022.
    INSURANCE COMPANY OF NORTH AMERICA v. SMITH.
    (375 SE2d 866)
   Benham, Judge.

Appellee was injured while riding on a bus insured by appellant. In her attempt to recover lost wages for the time she was medically unable to work, she sued appellant, the insurer, who moved for summary judgment, contending that it had paid her all of the lost earnings to which she was entitled. The trial court ruled in appellee’s favor, and that decision was upheld by this court. Insurance Co. of North America v. Smith, 183 Ga. App. 266 (358 SE2d 658) (1987). A trial was held on the issue whether appellant had acted in bad faith in refusing to pay the additional lost wage benefits appellee claimed. See OCGA § 33-34-6. The jury found that appellee’s lost wage benefits had been paid, that appellee was entitled to a penalty of $551.25, attorney fees of $8,075, and punitive damages of $150,000. The trial court entered judgment to that effect, and denied appellant’s motion for judgment n.o.v. and motion for new trial. Appellant again seeks relief from this court.

1. Appellant challenges the sufficiency of the evidence and contends that the trial court erred in denying its motions, arguing that the undisputed evidence showed appellant had acted in good faith since its refusal to pay lost wages was based on a reasonable legal opinion and evidence that the claim related to a job that had been terminated. In reviewing this type of case, the judgment should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer. Ga. Farm Bureau &c. Ins. Co. v. Bestawros, 177 Ga. App. 667 (1) (340 SE2d 645) (1986). Appellee was required to establish “with reasonable certainty [her] entitlement to benefits for loss of income or earnings during the period of [her] disability by showing that [she] ‘had accepted an offer of income-generating employment or has had a continuous pattern of employment prior to the period of disability.’ [Cit.]” Insurance Co. of North America v. Smith, supra, Division 1. The evidence adduced at trial showed that appellee had included on her original application for personal injury benefits (PIP) the fact that she had been employed from 1980 to 1984 by Mary Payne. That information, coupled with her listing of her employer at the time of the accident, Industrial Housekeeping, was sufficient to support a finding that she had a continuous pattern of employment prior to the period of disability. She proved the amount of benefits to which she was entitled with her wage statement showing her lost income with Industrial Housekeeping. There being enough evidence to support the jury’s conclusion that the award of benefits in question was warranted, it fell to the insurer to show a reasonable defense vindicating its good faith in failing to make the award in the appropriate period of time.

Appellant’s defense was that it only received a wage verification from Industrial Housekeeping that showed an August 31, 1984, termination date, and having no reasonable proof that appellee was entitled to more, it only paid the claim relating to that time period. It also contended that further proof of the fact or amount of appellee’s wage loss was not offered until after she filed her lawsuit. However, the record shows that appellant did not seek any further proof, nor did it make appellee aware that further proof would be needed. In its letter of inquiry dated December 13, 1984, apparently in response to the PIP application, the claims adjuster requested that a wage and salary verification be completed by “Ms. Smith’s employer,” and when appellee responded by sending the form executed by “the Payroll Clerk of HIH Services, Inc.” (for Industrial Housekeeping), appellant did not inquire further about the employment with Mrs. Payne that had been indicated on the original PIP application. As for appellant’s claim that it acted on the advice of its legal counsel in not paying the full amount of benefits, it was shown that the legal advice was based on the claims adjuster’s representation to the attorney that the only wage verification received was that from HIH Services, showing the August 31 termination date. At the time the advice was given, the attorney was not aware that appellee had raised a continuous history of employment issue through the information she supplied on the PIP application, and that the adjuster had not pursued that issue. Appellee did provide additional information supporting her claim once it was sought in the course of the lawsuit, and that information was available and could have been supplied earlier had appellant sought it.

Whether appellant acted in bad faith was an issue for the jury to decide. In refusing to pay after appellee’s due demand, the insurer acted at its peril, “a peril neither increased nor diminished by the amount of information it might have or obtain, but only by the weakness or strength of its defense as manifested at the trial . . . [A]ny defense not manifesting such reasonable and probable cause [for making it] would expose the company to the imputation of bad faith and to the assessment of damages therefor under . . . the Code.” Bituminous Cas. Corp. v. Mowery, 145 Ga. App. 45, 50 (244 SE2d 573) (1978). There being some evidence to support the jury’s finding of bad faith and the subsequent assessment of damages, we affirm the judgment.

2. Appellant claims that the trial court erred in denying it the right to make the opening and concluding arguments at the close of the evidence. It contends that since it had the burden of proof under OCGA § 33-34-6 (c), it should have been allowed to open and close. Assuming, but not deciding, that appellant was entitled to claim the right to opening and closing argument, its failure to claim that right until both parties had submitted all of their evidence constituted a waiver of the right. “The rule is that this right to open and conclude must be claimed before testimony by the other party is submitted. [Cits.]” International Indem. Co. v. Coachman, 181 Ga. App. 82 (6) (351 SE2d 224) (1986).

3. On the issue of punitive damages, the trial court charged the jury that “[p]unitive damages are awarded to deter a person from doing something again or because of the wounded feelings of the injured person.” Appellant cites the charge as error, arguing that the “wounded feelings” statement provided the jury with an unauthorized basis for appellee to recover. We find no error in the charge as given. It is an accurate restatement of the principle from OCGA § 51-12-5, which defines punitive damages. Appellant’s contention that the charge allows for a double recovery has no merit, inasmuch as the cases upon which it relies contain a charge that allows for such damages to be awarded to deter conduct and compensate for wounded feelings. The trial court used the disjunctive “or” in giving the charge, in accordance with the statute. Nor do we find any merit in the argument that the definition in § 51-12-5 does not apply to punitive damages in anything other than tort cases. OCGA § 33-34-6 (c) specifically provides for punitive damages, but does not define the term. Therefore, it was proper for the trial court to use the statutory definition provided in § 51-12-5 in the absence of provisions to the contrary. The insurer’s assertion that there was no evidence supporting appellee’s “wounded feelings” is also groundless. “ ‘Wounded’ feelings are such as result from indignities to the self-respect, sensibilities, or pride of a person, as distinguished from the usual mental pain and suffering consequent to a physical injury.” Interstate Life &c. Co. v. Brewer, 56 Ga. App. 599 (5) (193 SE 458) (1937). The record shows that as a result of appellant’s delay of payment, appellee was reduced to living from her daughter’s Social Security check and food stamps; she was unable to pay her bills and her furniture was repossessed; and she was unable to retain her credit cards and her insurance. That was sufficient evidence to justify the charge on “wounded feelings,” and, contrary to appellant’s assertion, the evidence was admissible to show the extent to which appellee was “wounded” by appellant’s conduct. The testimony went directly to the issue of punitive damages, and the cases upon which appellant relies do not involve punitive damage claims. The trial court did not err in its rulings.

4. Appellant also complains that the trial court’s charge on bad faith was inadequate. The trial court instructed the jury that it was to determine whether or not the insurer’s refusal to pay appellee’s claim was justified at the time it originally refused to pay it; that if it was, then appellee would not be entitled to recover the penalty, attorney fees, or punitive damages; that the insurer had a right to contest a claim, but it was also required to make a good faith effort to make a determination and pay on time; and that if the jury found that appellant’s refusal was frivolous or for some unfounded reason, appellee would be entitled to recover, but that if the refusal was in good faith and timely, appellee would not be entitled to recover. Appellant objected to the trial court’s rejection of its request to charge which stated: “Bad faith means a frivolous or unfounded refusal in law or in fact to pay the loss according to the insurance contract. If you find that the refusal of defendant to pay the lost wage claim . . . was not frivolous or unfounded in law . . . then your verdict should be in favor of [appellant].” Although the trial court’s charge did not match exactly the one appellant offered, it covered the salient points adequately. Viewing the charge as a whole, we find that was sound. “[Wjhere the charge as a whole substantially presents issues in such a way as is not likely to confuse the jury ... an appellate court will not reverse a verdict authorized by the evidence. [Cit.] . . . The failure of the court to give a requested charge in the exact language requested, where the charge given covered the same principle of law, is not a ground for a new trial. [Cit.]” Ideal Pool Corp. v. Champion, 157 Ga. App. 380 (4, 5) (277 SE2d 753) (1981).

5. Another enumeration appellant raises is the trial court’s alleged error in failing to charge the jury that this court’s earlier ruling of appellee’s eligibility for benefits was not determinative of the issue submitted to the jury, but that the jury should determine the insurer’s good faith based upon the law as it existed when appellant denied appellee’s additional claim. The trial court instructed the jury that “the fact that the insurance company has now come in and paid it, ladies and gentlemen, is not an admission on their part that it was due at the time they originally refused to pay it. But it is for you to determine whether the refusal was justified at that time or not, and if it was, and if in good faith . . . then the plaintiff would not be entitled to recover the penalty, attorney’s fees, or punitive damages.” We find that that statement was sufficient to cover the point appellant sought to make.

6. Appellant also contends the trial court made an impermissible comment on the evidence and improperly charged the jury that appellee was entitled to recover if she proved she had a loss of income during her period of disability, and that she either accepted an offer of income-generating employment or had a continuous pattern of employment prior to her disability. The insurer argues that that was not the state of the law on August 31, 1984, the time at which appellee was denied further benefits. The insurer is incorrect. In Leonard v. Preferred Risk Mut. Ins. Co., 247 Ga. 574 (1) (277 SE2d 675) (1981), our Supreme Court stated, “While it is not essential to recovery of lost income benefits that the injured party actually be earning income on the date of injury, he must, at a minimum, have accepted an offer of income-generating employment or have a continuous pattern of employment prior to the period of disability. [Cits.]” That being the state of the law at the time in question, and that information having been brought out at trial, the trial court did not err in making its statements.

7. In its last enumeration involving the jury charge, appellant claims the trial court misled the jury into believing that if it found the insurer’s failure to pay was in bad faith, the jury was required to award a 25 percent penalty, attorney fees, and punitive damages. It also contends that the jury verdict form directed such a result. We disagree. Both the trial court’s instructions and the verdict form made it clear that the jury could exercise the option of making one, two or all three awards, in any amount it so chose within the statutory limits. See, e.g., the portion of the jury charge quoted in Division 5 of this opinion. The verdict form was subdivided into parts (a), (b), (c), and (d), one for each of the items (plaintiff’s loss, penalty, attorney fees, and punitive damages) on separate lines with separate spaces for different amounts to be filled in for each item. The explanation and the form could not have been more clear. No error was committed.

8. The jury returned a verdict of $150,000 in punitive damages, which appellant, relying on Colonial Pipeline Co. v. Brown, 258 Ga. 115 (365 SE2d 827) (1988), contends was excessive as a matter of law. That case is distinguishable from the one before us for a number of reasons. The injury suffered in Colonial was to property only, no bodily injury having been suffered by the plaintiff, and the negligence in question was considered “passive.” That was not the situation here. Appellee suffered physical injury, not property damage, and appellant’s decision not to pay was an “intentional and deliberate” one. Id. at 121. We must also note that appellee suffered the indignities that can result from a prolonged loss of income, and it was properly left up to the jury to assess to what extent appellant should be made to feel the impact of its actions on claimants to prevent similar situations from occurring in the future. The punitive damages awarded appellee were not one hundred times the total of actual and consequential damages, as was the case in Colonial Pipeline. These reasons make this situation a unique one, and, under the circumstances, “we do not have the temerity to propose that our ivory tower evaluation should be substituted for that of [12] jurors plus the . . . trial judge . . . who as ‘the 13th juror’ have decided the conduct of [appellant] was such that exemplary damages of [$150,000] should be awarded ‘either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff.’ [Cit.]” Jones v. Spindel, 128 Ga. App. 88, 94 (2c) (196 SE2d 22) (1973).

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.

Decided November 3, 1988 —

Rehearing denied November 21, 1988

Mozley, Finlayson & Loggins, Sewell K. Loggins, D. Keith Calhoun, for appellant.

Mills & Freeman, W. Franklin Freeman, Jr., James A. Vaughn, for appellee.


author: Pope, Judge.

text:
    77037.
    FORESTER v. McDUFFIE et al.
    (375 SE2d 488)
   Pope, Judge.

On January 16, 1978, plaintiff Bob A. Forester purchased a tract of land from defendants in exchange for a warranty deed. According to the warranty deed, the land consisted of 207.6 acres. Shortly after purchasing the land, plaintiff learned that an adjoining landowner held superior title to approximately 7.09 acres which defendants had attempted to convey to plaintiff in the deed. On August 9, 1984, plaintiff filed a complaint against defendants alleging fraud and praying for attorney fees and punitive damages. On January 15, 1987, the complaint was amended to add a claim for breach of warranty of title. The amended complaint alleged the defendants were aware they lacked title to the disputed portion of land and acted in bad faith in issuing the warranty of title. Plaintiff again prayed for punitive damages and attorney fees for the alleged bad faith of defendants. At trial, defendants did not contest liability for the shortage in acreage and the issue of damages was submitted to the jury which awarded plaintiff a verdict of $6,500. The trial court directed a verdict in favor of defendants on the issue of punitive damages and attorney fees. Plaintiff appeals.

1. Exemplary damages are not allowed for a breach of contract. OCGA § 13-6-10. Therefore, plaintiff could recover exemplary or punitive damages only for the alleged tort of fraud and deceit. An action for fraud and deceit for shortage in acreage of land must be brought within four years after the right of action accrues, pursuant to the four-year period of limitation for damages to realty as set forth in OCGA § 9-3-30. See Rigdon v. Barfield, 194 Ga. 77 (2) (20 SE2d 587) (1942). Even if, in this case, the defendants’ actions debarred or deterred the plaintiff from discovering the cause of action, the applicable period of limitation began to run when plaintiff discovered the fraud. See OCGA § 9-3-96. Plaintiff testified that on February 20, 1978, defendant Gerald McDuffie admitted to plaintiff that he had long been aware of a dispute regarding the land boundary. Plaintiff testified he “found out for sure” there was a problem with the property by late summer 1978, after consulting an attorney and a land surveyor. However, plaintiff’s complaint was not filed until August 9, 1984, six years from the time he learned of his alleged cause of action. Consequently, the court did not err in granting a directed verdict to the defendants on plaintiff’s claim for punitive damages because said claim was barred by the applicable statute of limitation.

Plaintiff also prayed for attorney fees for the defendants’ alleged bad faith and stubborn litigiousness. “[W]here the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow [expenses of litigation].” OCGA § 13-6-11. A plaintiff may not recover expenses of litigation for stubborn litigiousness where a bona fide controversy exists. Bayliner Marine Corp. v. Prance, 159 Ga. App. 456 (3b) (283 SE2d 676) (1981); Nestlé Co. v. J. H. Ewing & Sons, 153 Ga. App. 328 (4) (265 SE2d 61) (1980). For purposes of this litigation, defendants did not contest liability for the breach of warranty as to the shorted acreage but did contest the issue of damages in regard to the value of said land. Because a bona fide controversy existed as to plaintiff’s damages, plaintiff was not entitled to expenses of litigation on the ground of stubborn litigiousness.

Nevertheless, plaintiff argues an issue of fact was created as to the bad faith of defendants in issuing a warranty of title to the disputed acres. Defendants, a widow and her children, obtained title to the land sold to plaintiff from the estate of their husband and father, J. N. McDuffie. The predecessor in title to plaintiff’s adjoining landowner was J. N. McDuffie’s brother. Plaintiff presented evidence that defendant Gerald McDuffie admitted his father and uncle never knew for certain where the true land line ran between their adjoining property. Plaintiff also presented evidence that when the adjoining land was surveyed for a new owner in 1977, Gerald McDuffie discussed the uncertainty of the land line with the surveyor who presented McDuffie with evidence that his family “might not own” a certain portion of the property they thought was theirs. Nevertheless, plaintiff failed to show Gerald McDuffie or any other defendant had actual knowledge that they did not hold title to the disputed acreage. For purposes of this litigation, defendants did not contest liability for breach of warranty as to the disputed acreage. However, the evidence showed actual ownership of the acreage in question was still in dispute and had never been judicially determined. Because no evidence was presented from which a jury could find defendants acted in bad faith, the lower court did not err in granting defendants’ motion for directed verdict on the issue of attorney fees and expenses of litigation.

2. Plaintiff argues that the trial court’s charge to the jury regarding calculation of damages for breach of warranty to land was erroneous and confusing. “In actions for recovery for deficiency in land the measure of damages generally is the pro fata part of the purchase-money paid or to be paid for deficiency with interest. . . . However, where a part of such property may be of greater value than other portions this is not necessarily a fixed rule.” Halliburton v. Collier, 75 Ga. App. 316, 324 (43 SE2d 339) (1947); accord Woodstock Village v. Fowler, 154 Ga. App. 82 (1) (267 SE2d 558) (1980). Where evidence shows the unconveyed land was more valuable per acre than the land actually conveyed, the jury need not apply the general rule of strict apportionment but may consider the actual value of the unconveyed land. Woodstock Village v. Fowler, supra. Evidence was presented to show the value of the unconveyed land, pursuant to the strict apportionment rule, was approximately $3,084.15. Plaintiff, however, testified that the unconveyed land was more valuable than the value per acre of the remaining land. In his opinion, the value of the unconveyed land was $6,000. The verdict of $6,500 indicates that the jury did not apply the strict apportionment rule but apparently accepted plaintiff’s testimony that the unconveyed land was of greater value per acre than the land actually conveyed. The verdict indicates the jury granted damages pursuant to plaintiff’s testimony, plus interest. Therefore, the confusion in the jury charges, if any, was harmless.

Decided November 7, 1988 —

Rehearing denied November 21, 1988.

McClure, Ramsay & Dickerson, Allan R. Ramsay, for appellant.

Cathey & Strain, Dennis T. Cathey, for appellees.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Banke, Presiding Judge.

text:
    77336.
    In the Interest of S. L. et al.
    (375 SE2d 484)
   Banke, Presiding Judge.

The appellant’s parental rights with respect to her three minor children, J. J., S. L., and D. R. L., were terminated pursuant to OCGA § 15-11-81 based on findings of parental misconduct and inability. On appeal, she contends that these findings were not supported by clear and convincing evidence.

At the time of the hearing, which was held in April of 1988, the children were approximately 5, 3, and 2 years of age, respectively. The appellant was 21 years of age at the time and was 8-1/2 months pregnant. The Newton County, Georgia, Department of Family and Children Services (DFCS) first became involved with the family in December of 1984, just prior to J. J.’s second birthday. The DFCS obtained custody of J. J. in June of 1985, based upon a showing that the appellant was emotionally unstable and had no place of residence to offer the child. S. L. was born in August of 1985. In June of 1986, both J. J. and S. L. were temporarily removed from the appellant’s custody based on a finding that they had been left with an inappropriate caretaker.

D. R. L. was born on August 21, 1986, suffering from severe medical problems. The day after his birth he was transferred to Henrietta Egleston Hospital for Children in Atlanta for treatment. While D. R. L. was thus hospitalized, the DFCS sought and obtained an order granting it temporary custody of the other two children, based on a showing of deprivation. However, on August 27, 1986, before this custody order could be put into effect, the appellant removed D. R. L. from the hospital against medical advice and fled by bus to Iowa with all three children.

The appellant admitted that upon her arrival in Iowa she did not immediately seek medical attention for D. R. L., even though he was exhibiting signs of medical distress. Four days later, she took the child to a hospital emergency room for treatment; however, she initially refused, again against medical advice, to authorize an emergency transfer of the child to a larger facility, stating that she believed he was not sick. The following day, a juvenile court in Iowa issued a temporary custody order removing all three children from the appellant’s custody. The appellant has not had custody of the children since then and has made only sporadic efforts to remain in contact with the children.

It was shown that while in the appellant’s custody the children had been exposed to physical violence. A psychologist who had evaluated the appellant testified that she believed the appellant lacked the capacity to raise the children, in part because she lacked the ability to take care of herself. There was evidence that the appellant had been uncooperative with and physically abusive to caseworkers, that she had failed to comply with a court-ordered plan requiring her to pay child support and to attend parenting classes, and that she had made little effort either to create a stable home environment or to remain employed. Held:

Based on our review of the record, we hold that the termination order was supported by clear and convincing evidence of “parental misconduct or inability,” within the contemplation of OCGA § 15-11-81 (a) and (b). See generally In re B. D. C., 256 Ga. 511 (350 SE2d 444) (1986); In the Interest of J. T. S., 185 Ga. App. 772 (365 SE2d 550) (1988). “In a case such as this, a plea of [additional time] to improve is without force to overcome the proof of unrelieved detriment already suffered by the children for their entire life, where there is no indication but the promise to suggest hope of improvement.” In re G. M. N., 183 Ga. App. 458, 461 (359 SE2d 217) (1987).

Decided November 4, 1988 —

Rehearing denied November 21, 1988

W. Donald Kelly, for appellant.

Horace J. Johnson, Jr., Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.

On Motion for Rehearing.

On motion for rehearing, the appellant contends that the judgment of the lower court must be vacated and the case remanded pursuant to the Supreme Court’s decision in In re L. L. B., 256 Ga. 768 (353 SE2d 507) (1987), based on the trial court’s failure to appoint an attorney for the children. Because this issue was not raised by the appellant in her original brief and enumeration of errors, it will not now be considered. “Enumerations of error may not be amended after the time for filing has expired.” Burke v. State, 153 Ga. App. 769, 771 (266 SE2d 549) (1980). See also Intl. Furn. Distrib. v. Lifshultz Fast Freight, 176 Ga. App. 102, 103 (3) (335 SE2d 628) (1985). The motion for rehearing is denied.


author: McMurray, Presiding Judge.

text:
    77618.
    ATTWELL v. SEARS, ROEBUCK & COMPANY.
    (375 SE2d 631)
   McMurray, Presiding Judge.

This appeal is from an order of the State Court of Fulton County holding appellant in contempt of court for failing to comply with an order requiring him to appear for a post-judgment deposition. Held:

1. In his first enumeration of error, appellant contends “[t]he order adjudging [him] in contempt is insufficient in law and should be reversed.” We do not agree.

“OCGA § 15-7-4 (5) . . . vests State Courts with jurisdiction to punish ‘contempts by fine not exceeding $500 or by imprisonment not exceeding 20 days, or both.’ [Cit.]” Carey Canada, Inc. v. Hinely, 257 Ga. 150, 151 (356 SE2d 202). In the case sub judice, the state court’s contempt order of June 16, 1988, in addition to finding defendant in contempt for his failure to appear as ordered in a prior order of the court, required defendant to “appear for his deposition . . . [and] to pay $250.00 in attorney’s fees, said sum to be paid on or before taking his deposition.” This penalty did not exceed the state court’s jurisdiction under OCGA § 15-7-4 (5). See OCGA § 9-11-37 (b) and Carey Canada, Inc. v. Hinely, 257 Ga. 150, supra.

Decided November 3, 1988 —

Rehearing denied November 21, 1988

Joseph J. Attwell, pro se.

Goodman, Hudnall & McManus, Lauren J. Larmer, for appellee.

2. In his second enumeration of error, appellant contends “[t]he trial court erred in not vacating the default judgment and dismissing the cause.”

This appeal is not from an order denying appellant’s motion to set aside (designated by appellant as “Motion of Defendant to Vacate Default Judgment”). This is an appeal from the trial court’s order holding appellant in contempt of court. Consequently, this court has no jurisdiction to consider appellant’s second enumeration of error. See Lewis v. Sun Mgt., 182 Ga. App. 560 (356 SE2d 526).

Judgment affirmed.

Pope and Benham, JJ., concur.

       This case first appeared in this court in Attwell v. Sears, Roebuck & Co., 159 Ga. App. 811 (285 SE2d 199).


text:
    77846.
    PIERRE v. THE STATE.
    (375 SE2d 511)
   McMurray, Presiding Judge.

Defendant was indicted for possession of cocaine with intent to distribute. The evidence adduced at a jury trial showed that “Detective-Sergeant” Nelson T. Brown, Jr. and “Detective Carl Brown” of the Americus, Georgia, Police Department arranged to observe two police informants purchase cocaine from defendant. A microphone and a radio transmitter were concealed beneath the clothing of one of the police informants so that the detectives could monitor conversations during the illegal drug transaction. After one of the informants signaled that defendant had produced cocaine, the detectives and other law enforcement officers arrested defendant and seized the controlled substance. From this and other evidence adduced at trial, defendant was found guilty of the crime charged. This appeal followed. Held:

1. In his first enumeration of error, defendant contends the trial court erred in allowing Detective Nelson T. Brown, Jr., to testify as to conversations he observed while monitoring the illegal drug transaction. Defendant argues that the testimony was inadmissible hearsay.

Decided November 21, 1988.

Ellis, Easterlin, Peagler & Gatewood, John V. Harper, for appellant.

John R. Parks, District Attorney, for appellee.

Assuming, without deciding, that the conversations Detective Brown observed during the illegal drug transaction were hearsay, they were admissible as part of the res gestae. OCGA § 24-3-3. See Doughty v. State, 175 Ga. App. 317 (1) (333 SE2d 402). “ ‘In addition, all circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them. (Cits.)’ Fuqua v. State, 183 Ga. App. 414, 419-420 (359 SE2d 165) (1987). See also Eaton v. State, 184 Ga. App. 645 (1) (362 SE2d 375) (1987).” Lawrence v. State, 187 Ga. App. 211, 212 (1) (213 (369 SE2d 531). Consequently, the trial court did not err in allowing Detective Brown’s testimony.

2. In his second enumeration of error, defendant contends “[t]he trial court erred by refusing to allow [his attorney] to respond to objections made by the District Attorney.” However, defendant has failed to indicate where in the trial transcript this alleged erroneous conduct transpired. Consequently, this enumeration of error presents nothing for review. See Rule 15 (c) (3) (i) (ii) of the Rules of the Court of Appeals of the State of Georgia; Ross v. State, 173 Ga. App. 313, 315 (5) (325 SE2d 919).

3. In his final enumeration of error, defendant contends the trial court “erred in denying [him] a fair trial by unnecessarily and repeatedly admonishing [his attorney] before the trial jury.”

“ ‘It is the duty of the trial court to control the trial of the case and to ensure a fair trial to both sides of the disputed issues in the case. Sometimes this requires interference by the court with the conduct of counsel or with a witness in [the] trial. The trial judge has broad discretion in handling these matters, and we are loathe to interfere with that discretion unless it is manifestly abused by clearly demonstrated prejudice or unfairness. . . . (Cits.)’ Westerfield v. State, 176 Ga. App. 195 (3b) (335 SE2d 702) (1985).” Cantrell v. State, 184 Ga. App. 384, 385 (2), 386 (361 SE2d 689). We have examined the portions of the trial transcript in the case sub judice where defendant contends the trial court abused its discretion in directing the trial and we find no interference by the trial judge which deprived defendant of a fair trial. This enumeration of error is without merit.

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Deen, Presiding Judge.

text:
    77880.
    COLEMAN v. THE STATE.
    (375 SE2d 663)
   Deen, Presiding Judge.

In July 1986 appellant Coleman was the sole passenger in an automobile which a State trooper stopped for speeding on Interstate 75 in Crisp County in south Georgia. It was discovered that the vehicle had been rented by appellant in Sarasota, Florida, and that the person driving had no license. Upon arrival at the Crisp County jail, the arresting officer requested and received appellant’s permission to search the automobile, and an “Igloo” cooler containing 165 grams of powdered cocaine and 68 grams of “crack” cocaine were discovered under the hood. A strainer, copper spoons, and a can labeled “Mannitol” (a substance widely used for diluting cocaine but also used as a laxative) were found elsewhere in the car. Both Coleman and the driver were indicted and tried on two counts of trafficking in cocaine.

At trial appellant denied knowledge of the presence of either the cocaine or the cooler and alleged that other persons, including the driver/co-defendant, had had access to the automobile before it was driven into Georgia. The arresting officer testified, however, that at the time of the arrest the appellant had admitted that he knew the cooler was in the car and also that he “knew what the risks were of getting into a business like this.” A jury found Coleman guilty on both counts, and the trial court merged the convictions for sentencing and ordered that appellant be imprisoned for twenty years and pay a $150,000 fine. On appeal Coleman enumerates eight errors. Held:

1. Coleman first alleges that the court erred in admitting into evidence a custodial statement, urging that failure to record the statement electronically violated the constitutional guarantees of due process, right to counsel, right to a fair trial, and right not to incriminate oneself. Although appellant’s exposition of this point, based largely on an Alaska case interpreting a provision of that state’s constitution (Stephan v. State, 711 P2d 1156 [Alaska, 1985]), is extremely interesting, we find that neither the Georgia Constitution nor the Constitution of the United States mandates such a procedure in the instant case. The trial transcript reveals that a Jackson u. Denno hearing was held and that the court found appellant’s custodial statements to have been made freely, voluntarily, and without undue influence, compulsion, or duress. This enumeration has no merit.

2. Appellant next alleges that the trial court erred when once during the trial he referred to appellant, in the jurors’ hearing, as “the prisoner at the bar.” Such designation of an accused has been held not to be error. Collier v. State, 232 Ga. 282, 283 (206 SE2d 445) (1974); Dortch v. State, 158 Ga. App. 233, 234 (279 SE2d 526) (1981). This enumeration, also, is without merit.

3. Appellant enumerates as a third error the trial court’s refusal to permit defense counsel to question potential jurors during voir dire regarding their feelings towards appellant. When counsel asked one juror, “[W]hat are your feelings about Mr. Coleman right now?,” the State objected that the question called for prejudgment of the case, and the court sustained the objection. The trial court has broad discretion as to what questions should be allowed on voir dire, and that discretion will not be disturbed absent abuse. Wilcox v. State, 250 Ga. 745, 749 (301 SE2d 251) (1983); Ridgeway v. State, 174 Ga. App. 663 (330 SE2d 916) (1985). This enumeration, too, is without merit.

4. Appellant further enumerates as error the prosecuting attorney’s statement in closing argument: “[Y]ou heard Agent Whitaker’s testimony, the only purpose he knows of . . . for Mannitol is to cut cocaine.” Defense counsel objected that the witness had testified that Mannitol could also be used as a laxative, and the trial court instructed the jury to recall the testimony accurately. It is well settled that counsel has wide latitude on closing argument, including drawing deductions from the evidence. Walker v. State, 232 Ga. 33, 36 (205 SE2d 260) (1974); Mitchum v. State, 11 Ga. 615, 631 (1852). Moreover, immediately prior to mentioning Mannitol the prosecutor had mentioned the discovery of such items as the strainer and the spoons. In the context of the proximity of these items — as well as of the cocaine — to the Mannitol can, it was surely not unreasonable or unfair for the State to suggest that the Mannitol was there for the purpose of diluting the cocaine. This enumeration, too, is devoid of merit.

5. Appellant is correct in stating, in his fifth enumeration of error, that Georgia’s Supreme Court has disapproved the challenged jury instruction on the presumption of truthfulness. Noggle v. State, 256 Ga. 383 (349 SE2d 175) (1986). What he does not state, however, is that the Supreme Court did not find its use to constitute reversible error. Noggle, supra. See also Davis v. State, 241 Ga. 376 (247 SE2d 45) (1978); Ivie v. State, 151 Ga. App. 496 (260 SE2d 543) (1979); Cupp v. Naughten, 414 U. S. 141 (94 SC 396, 38 LE2d 368) (1973). This enumeration has no merit.

6. In his seventh and eighth enumerations, appellant assigns error to the trial court’s refusal to give two requested jury instructions, one on circumstantial evidence and the other on the “two theories” presented by the evidence. It is well settled that the trial court is not obligated to instruct the jury in the exact language requested and that, where the same principle of law is covered in another instruction, failure to give the requested charge is not error. Caldwell v. State, 167 Ga. App. 692, 695 (307 SE2d 511) (1983). Moreover, a jury charge equivalent to the requested “two theories” charge is required only when all the evidence is circumstantial. Ennis v. State, 130 Ga. App. 716 (204 SE2d 519) (1974). Scrutiny of the transcript clearly indicates that this case involved both direct and circumstantial evidence and that the principle of circumstantial evidence was adequately covered in the court’s charge to the jury. These enumerations have no merit.

Decided November 21, 1988.

Richard E. Thomas, for appellant.

John C. Pridgen, District Attorney, for appellee.

7. In appellant’s sixth enumeration he contends that the trial court erred in instructing the jury that the defendant could be found guilty as charged on Count I of the indictment if he had “actual or constructive possession” of cocaine. In Count I Coleman was charged with trafficking in cocaine by knowingly bringing into the state 28 grams or more of cocaine. See OCGA § 16-13-31 (a) (1). Prior to March 28, 1988 (a period which includes the time when the alleged offenses occurred), the word “actual” preceded the word “possession” in the cited subsection. Under Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988), it was reversible error for the court to add the words “or constructive” to his charge, as this was not a correct statement of the law at the time of the offense. The conviction on Count I therefore cannot stand.

As to Count II, however, the jury was correctly instructed, and the conviction on that count was clearly authorized by the evidence. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We find no merit in appellant’s argument as to the confusion that might allegedly have spilled over from the incorrect charge in Count I. The trial court erred only with respect to Count I.

Judgment affirmed in part and reversed in part.

Carley and Sognier, JJ., concur.


text:
    77897.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. FOWLER.
    (375 SE2d 666)
   McMurray, Presiding Judge.

Georgia Farm Bureau Mutual Insurance Company (“Georgia Farm Bureau”) brought suit against its insured, Brinda Fowler. It was alleged that the insured sustained damage to her automobile when she was involved in a collision with a third party; that she filed a claim with Georgia Farm Bureau pursuant to her contract of insurance and was paid $1,157.63 by Georgia Farm Bureau; that, thereafter, the insured accepted additional monies for her loss from the third party involved in the collision; and that the insured was liable to Georgia Farm Bureau pursuant to its right of subrogation.

The insured answered the complaint and denied liability. She subsequently moved for summary judgment and so did Georgia Farm Bureau. In support of their respective motions, each party submitted copies of the insured’s application for insurance and the policy declaration page. Neither party submitted the insurance policy which Georgia Farm Bureau issued to the insured.

A review of the insurance application and policy declaration page demonstrates that, in addition to other coverages, the insured applied for and received “collision” coverage. That coverage was subject to a deductible of $250.

The insured also filed an affidavit in support of her summary judgment motion. Therein, she averred that she had not been compensated completely for the losses which she sustained as a result of the collision.

Following a hearing, the trial court granted the insured’s motion for summary judgment; it denied Georgia Farm Bureau’s motion for summary judgment. Georgia Farm Bureau appealed, enumerating error upon the grant of the insured’s summary judgment motion and the denial of its summary judgment motion. Held:

Georgia Farm Bureau contends it is entitled to subrogation because it paid benefits to the insured pursuant to traditional collision coverage afforded by the policy. The insured asserts Georgia Farm Bureau is not entitled to subrogation because she purchased no-fault property damage coverage. Thus, the crux of this case is to be found in the type of coverage which the insured purchased. See generally Carter v. Banks, 254 Ga. 550 (330 SE2d 866); Allstate Ins. Co. v. Bohannon, 258 Ga. 131 (365 SE2d 838); Roberts v. Cotton States Mut. Ins. Co., 186 Ga. App. 371 (367 SE2d 272). If the insured purchased traditional collision coverage, subrogation is available. Carter v. Banks, 254 Ga. 550, supra. If, on the other hand, the insured purchased no-fault property damage coverage, subrogation is not available. Allstate Ins. Co. v. Bohannon, 258 Ga. 131, supra; OCGA § 33-34-3 (d) (1). Which type of collision coverage did the insured purchase? Sans policy, we cannot tell.

A review of the record merely shows that the insured obtained collision coverage. The documents submitted by the parties furnish no clue as to the nature of the collision coverage which the insured purchased. Compare Allstate Ins. Co. v. Bohannon, 258 Ga. 131, supra, in which a review of the policy and application made it clear that “optional” collision coverage was provided without regard to fault. It follows that the trial court erred in granting the insured’s motion for summary judgment; the trial court did not err in denying Georgia Farm Bureau’s motion for summary judgment.

Judgment affirmed in part and reversed in part.

Pope and Benham, JJ., concur.

Decided November 21, 1988.

Bobby L. Cobb, for appellant.

Fred V. Westberry, for appellee.


text:
    77905.
    HORTON v. THE STATE.
    (375 SE2d 668)
    Decided November 21, 1988.

      Sexton, Turner & Moody, Lee Sexton, for appellant.

      Johnnie L. Caldwell, Jr., District Attorney, James E. Sherrill, Assistant District Attorney, for appellee.
   Deen, Presiding Judge.

Appellant was convicted on multiple felony and misdemeanor counts of sexual exploitation. His bond was set at $250,000, and on July 8, 1988, the Fayette County Superior Court denied his motion for bond reduction. On August 8 appellant filed an emergency appeal with the Supreme Court of Georgia, which on that same day transferred the appeal to this court. On August 18, 1988, after consideration of the application and response, this court entered an order denying the motion.

Appellant then filed in the Supreme Court an appeal, accompanied by a brief identical to that filed in the August 8 appeal, from this court’s August 18 denial of the emergency appeal. He assigned as error “the denial of appellant’s motion for bond reduction.” The Supreme Court transferred this second appeal to this court. Held:

It is axiomatic that the same issue cannot be relitigated ad infinitum. Norris v. Atlanta & West Point R. Co., 254 Ga. 684 (333 SE2d 835) (1985). The same is true of appeals of the same issue on the same grounds. Our determination of August 18, 1988, is res judicata; the instant appeal is therefore barred, and we are without jurisdiction to review this same matter for a second time.

Appeal dismissed.

Carley and Sognier, JJ., concur.


text:
    77925.
    SZCZUKA v. BELLSOUTH MOBILITY, INC.
    (375 SE2d 667)
   McMurray, Presiding Judge.

Plaintiff William Szczuka was employed by Southern Bell as a network administrator in the marketing department. Using Southern Bell’s computer system, plaintiff ascertained an unpublished telephone number for a local radio station. (The station broadcasted another number which was to be used for call-in contests. By finding the unpublished number, plaintiff believed he would increase his chances of winning the station’s call-in contests.) On November 14, 1985, plaintiff dialed the radio station’s unpublished number using his personal mobile telephone and won a $5,000 cash prize.

Decided November 21, 1988.

Joseph A. Maccione, for appellant.

Kilpatrick & Cody, Edmund M. Kneisel, Frederick W. Johnson, for appellee.

Southern Bell suspected that plaintiff used proprietary company information to win the radio station contest. Accordingly, it asked defendant BellSouth Mobility, Inc., for a list of mobile telephone calls placed by plaintiff. Defendant furnished such a list to Southern Bell and plaintiff’s employment was subsequently terminated.

Plaintiff brought suit against BellSouth Mobility, Inc., alleging it wrongfully disclosed the list of plaintiff’s mobile telephone calls in violation of state and federal law. Defendant answered the complaint, denied liability, and moved for summary judgment. The trial court denied defendant’s summary judgment motion initially. Defendant renewed the motion, however, and it was granted ultimately. This appeal followed. Held:

Defendant did not violate state or federal law by furnishing plaintiff’s employer with a list of mobile telephone calls placed by plaintiff. State and federal law prohibits the disclosure of the contents of telephonic or radio communications. See, e.g., OCGA § 16-11-62; 47 USCA § 605. The disclosure of information concerning what numbers were dialed from a particular phone is not prohibited. Edwards v. State Farm Ins. Co., 833 F2d 535 (5th Cir. 1987). See Stephenson v. State, 171 Ga. App. 938 (321 SE2d 433). See also Mitchell v. State, 239 Ga. 3 (235 SE2d 509); Van Nice v. State, 180 Ga. App. 112, 116 (348 SE2d 515). Thus, plaintiff’s cause of action cannot be sustained. The trial court did not err in granting defendant’s motion for summary judgment.

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Carley, Judge. Deen, Presiding Judge,

text:
    77078.
    TRUST COMPANY BANK OF AUGUSTA v. CHRISTMAS et al.
    (375 SE2d 644)
   Carley, Judge.

Financing for appellee-plaintiffs’ purchase of a van was obtained from appellant-defendant Trust Company Bank of Augusta (Bank). Appellees made only one payment to the Bank and then returned the van to the dealer, having decided that they could not afford to make the remaining payments. On May 5, 1986, appellee Mrs. Christmas telephoned the Bank’s Collections Manager to discuss the situation and to determine how a future deficiency, if any, would be satisfied. During the course of that telephone conversation, the Bank’s Collections Manager allegedly entered into an “agreement” concerning the repayment of any future deficiency. According to appellee Mrs. Christmas, the “agreement” was that the Bank would notify appellees of any sale of the van and that, after such sale, the parties would then reach an agreement as to the payment of any remaining deficiency.

Subsequent to appellee Mrs. Christmas’ conversation with the Bank’s Collections Manager, appellees did receive notice by certified mail that the van would be sold at a private sale, unless appellees demanded a public sale within ten days of the notice or they redeemed the vehicle prior to such sale. Appellees did not respond to this pre-sale notice. Accordingly, the van was sold at a private sale and, after the proceeds were applied to the indebtedness, a deficiency remained. The Bank did not provide appellees with any post-sale notification. Instead, acting pursuant to agreements which had been signed by appellees upon their opening of checking and savings accounts, the Bank applied the funds in those accounts towards a reduction of the indebtedness. As a result of these debits made by the Bank, checks which appellees had drawn were dishonored due to insufficient funds in the accounts.

Appellees filed this suit for damages, alleging conversion of assets, intentional infliction of emotional distress upon Mrs. Christmas, and fraud and misrepresentation based upon the “agreement” of May 5, 1986. Appellant moved for summary judgment as to each count of appellees’ complaint. The trial court granted summary judgment in favor of the Bank only as to the conversion claim and the claim for intentional infliction of emotional distress. Although the trial court denied the Bank’s motion for summary judgment as to the fraud count, it did certify for immediate review its ruling in that regard and this court granted the Bank’s application for an interlocutory appeal.

Appellant enumerates as error the trial court’s denial of its motion for summary judgment on appellees’ fraud claim. “ ‘In order to give rise to an action for damages, the defendant’s fraud must be actual, i.e., the misrepresentation must be made either knowingly or with reckless disregard for the consequences.’ [Cit.]” Stanford v. Otto Niederer & Sons, 178 Ga. App. 56, 58 (2) (341 SE2d 892) (1986). Accordingly, the legal issue that is presented for resolution is whether a genuine issue of material fact remains as to the Bank’s liability for actual fraud.

A review of the record would indicate that discovery has eliminated the very existence of any misrepresentation on the part of the Bank as a genuine issue of material fact in the case. A reading of the deposition of appellee Mrs. Christmas shows that, in her conversation with the Bank employee, she apparently simply misunderstood the legal procedure which the Bank intended to pursue in connection with the repossession of the van and also misconstrued the manner in which the Bank would seek to satisfy any future deficiency. It would appear that appellee Mrs. Christmas, mistakenly assumed that the acknowledged agreement of the Bank’s Collections Manager to provide “notice of the sale” of the van referred to post-sale notice rather than to the statutorily required pre-sale notice. Likewise, appellee Mrs. Christmas mistakenly assumed that the “agreement” of the Bank’s Collections Manager that appellees “could . . . make small installment payments on any deficiency balance” represented a firm commitment that the Bank would definitely elect to so proceed in lieu of exercising any of its existing contractual rights as a secured party. A representation that the Bank would provide “notice of the sale” was entirely truthful, but appellee Mrs. Christmas merely mistakenly assumed that, in addition to the requisite pre-sale notice, appellees would be receiving some form of notification after the sale. Likewise, a statement made by the Bank’s Collections Manager as to what appellees, as defaulting debtors, “could” do in satisfaction of any future deficiency is neither a misrepresentation as to what the Bank, as the secured party, would do to satisfy a possible deficiency, nor a firm commitment by the Bank that the amount of any such future “deficiency” would not reflect the Bank’s prior exercise of its contractual right of set-off against appellees’ accounts. The law provides relief to a plaintiff who is defrauded by a defendant’s actionable misrepresentations. It does not provide relief to a plaintiff who mistakenly construes a defendant’s otherwise truthful statements and representations.

However, even assuming that the evidence of record would authorize a finding that the Bank had misrepresented that appellees would be sent post-sale as well as pre-sale notice and that the Bank would waive its contractual right to a set-off against appellees’ accounts if a deficiency resulted, the grant of summary judgment in favor of the Bank was nevertheless demanded. Such alleged misrepresentations would constitute no more than the Bank’s present agreement to come to a future agreement with appellees as to the specifics of how their defaulted loan was to be repaid. “Although fraud can be predicated on a misrepresentation as to a future event where the defendant knows that the future event will not take place ([cits.]), fraud cannot be predicated on a promise which is unenforceable at the time it is made. [Cits.] A promise to make [or to renegotiate the terms of] a loan with no specification of the interest rate or maturity date is not enforceable and will not support an action for fraud. [Cits.]” Beasley v. Ponder, 143 Ga. App. 810 (240 SE2d 111) (1977). See also First Nat. Bank & Trust Co. v. Thompson, 240 Ga. 494 (241 SE2d 253) (1978); Sierra Assoc. v. Continental Ill. Nat. Bank &c. Co., 169 Ga. App. 784, 790 (3) (315 SE2d 250) (1984). The Bank’s alleged “agreement” that it would not pursue its then-existing remedies, but would provide appellees post-sale notification and arrange a new loan repayment plan for the deficiency “ ‘constitutes nothing more than an unenforceable, broken promise, unsupported by consideration. Consequently, [appellees’] claim of fraud based on this alleged promise must fail.’ [Cit.] Thus, [even] assuming [the Bank] made the statement^] as [appellee] Mrs. [Christmas] claims, [appellees] clearly would not be able to maintain an action for fraud. Summary judgment was authorized.” Clark v. Gen. Motors Acceptance Corp., 185 Ga. App. 130, 136 (7b) (363 SE2d 813) (1987). See also Johnson v. Hinson, 188 Ga. 639 (2) (4 SE2d 561) (1939); Llop v. Nat. Bank of Ga., 154 Ga. App. 504 (268 SE2d 777) (1980).

It is undisputed that appellees failed to make installment payments toward the indebtedness evidenced by the note in favor of the Bank and that such failure constituted a default under the terms of the note. It is also undisputed that, in its repossession and sale of the van and in its subsequent set-off against appellees’ accounts, the Bank was in the lawful exercise of its contractual rights as a secured party. Appellees should not be allowed to place themselves in a more favorable position than any other defaulting party simply because they have alleged the breach of an oral “agreement” on the part of the Bank which was totally unenforceable at the time allegedly made. “[W]e do not find the necessary elements of certainty . . . , mutuality . . . , or consideration . . . which constitute a valid agreement. . . . [Cit.] The promise[s] . . . were mere naked ones, unenforceable in any court of law. [Cits.]” Turpin v. North American Acceptance Corp., 119 Ga. App. 212, 214-215 (1) (166 SE2d 588) (1969). “The mere breach of a valid, enforceable contract does not amount to fraud. [Cit.] A fortiori failure to observe an agreement by which one is not bound and which is unenforceable cannot amount to fraud. ‘It is contrary to common sense to rely upon a promise that is not legally binding upon the person making it.’ [Cit.]” Turpin v. North American Acceptance Corp., supra at 215-216 (1). Appellees’ obtained a loan and, having defaulted thereon, they were not defrauded even if, contrary to the Bank’s alleged “agreement,” they were subjected to the remedies which the Bank was lawfully entitled to pursue against a defaulting debtor. As the result of their “reliance” upon the Bank’s alleged misrepresentations, appellees were treated exactly as any other defaulting debtor. Accordingly, the trial court erred in denying the Bank’s motion for summary judgment.

Judgment reversed.

Sognier, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

Although I concur in the logic of the closely reasoned analysis set forth in the instant case, I feel constrained to comment on the harshness of the result when, as here, the letter of the law is applied in instances where the parties have such disparate bargaining positions.

It is clear from the record in the instant case that the bank’s collections manager understood that Mrs. Christmas was asking that she be given post-sale notice as to the amount of any deficiency, so that a payment schedule could be worked out and repayments begun. Moreover, according to the record, it was — or should have been — clear to the bank officials involved that the Christmases were not, as the majority characterizes them, like “any other defaulting debtor,” in a very significant respect. The Christmases were not seeking to dodge or to walk away from their obligations under the promissory note. To the contrary, on their own initiative, when they realized that they had made an error of judgment in purchasing the van and that they would be unable financially to honor the terms of the note, they returned the almost-new van to the dealer and approached the bank to inquire how they might pay off their debt in full, including any deficiency that might exist after the van had been sold. Their actions were “upfront” and above-board.

It is true that, technically and legally, they (like “any other” depositor or borrower) had notice of the bank’s rights in the event of default; but, like so many others, and particularly those of limited education or business experience, they regarded as just so much unavoidable “fine print” the language of notice appearing on the signature cards and/or other documents they signed when opening accounts or transacting other business with the bank. Moreover, it is doubtful that the language itself, much less its import, was brought to their attention when they affixed their signatures, since the law presumes that one reads what one signs.

In the instant case one can fault appellees’ procedures, but cannot contend that their intentions were otherwise than above reproach; to end up, as they did, seriously in debt and with their credit record in shreds, seems disproportionate to their error. Although the bank almost certainly was not guilty of fraud, actual or constructive, and although this is certainly neither the first nor the last instance of a bank’s pursuing a similar course in a similar situation, one wishes that some sort of equitable intervention were possible when an institution and the proverbial “little man” (or woman) undertake to deal “at arm’s length” and the latter, through mistake, misguidance, or misunderstanding, comes out with little left but his bare arm.

Decided November 9, 1988 —

Rehearing denied November 22, 1988.

Hull, Towill, Norman & Barrett, Patrick J. Rice, George R. Hall, for appellant.

Victor C. Hawk, for appellees.