author:
Pope, Judge.
      Sognier, Judge,

text:
    A89A1728.
    DAVIS v. THE STATE.
    (392 SE2d 253)
   Pope, Judge.

John Miron Davis was charged by accusation with battery and simple battery. He was tried by a jury and acquitted of the battery charge but convicted of simple battery. He appeals.

1. Davis’s first enumeration, in which he contends the trial court erred by denying his amended motion for a new trial, is not supported by citation of authority or argument. Accordingly, this enumeration is deemed abandoned pursuant to Rule 15 (c) (2) of this court. Fowler v. State, 188 Ga. App. 873, 874 (3) (374 SE2d 805) (1988).

2. Davis enumerates as error the trial court’s denial of his motion for a directed verdict of acquittal made on the ground of a fatal variance between the allegata and the probata. We find no merit in this enumeration. The accusation charged Davis with simple battery by striking his wife “in the face with his fist, causing a black eye.” However, a portion of Davis’s left arm had been amputated, and the victim testified that he struck her not with his fist but with his stump. “ ‘The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.’ (Citations omitted.) [Cit.]” DePalma v. State, 225 Ga. 465, 469-470 (169 SE2d 801) (1969). The variance complained of here did not subject Davis to either of these dangers, and thus we find no error. See Hancock v. State, 188 Ga. App. 870 (374 SE2d 757) (1988).

3. The record reveals the trial judge instructed witnesses not to “discuss your testimony with each other or any third person while the trial is pending,” and that a State witness, Joyce Goodroe, refused to discuss the case with Davis’s attorney during a lunch break, based on her understanding that the trial court’s instruction prohibited such a conversation. Davis contends the trial court’s instruction to witnesses regarding the rule of sequestration was erroneous, and that the trial court failed to cure that error by affording him the opportunity to interview Goodroe after correcting her mistaken impression.

The trial court questioned Goodroe outside the presence of the jury, told her that “it would not have been improper ... for [her] to talk to [Davis’s counsel],” and inquired whether she would have talked to him but for her misunderstanding of the court’s instruction regarding sequestration. After first referring again to needing the court’s permission, Goodroe finally said: “No, I don’t think so. I don’t believe I would have, sir.” On that basis, the trial court refused to allow Davis’s counsel to recess the trial to interview the witness, and permitted her to testify over his objection and despite counsel’s statement in his place that the question he planned to ask Goodroe was one that could not have been asked prior to the beginning of the trial.

We find that the trial court not only took care to correct the witness’ misapprehension about the propriety of speaking with defense counsel, but also ascertained that the witness would not have spoken with counsel even had she not been laboring under the erroneous belief that she was instructed not to do so. Accordingly, any possible error in refusing to grant Davis a recess to interview the witness would be harmless. It is elementary that “[t] he absence of harm, even when there is error, affords no cause for reversal. [Cit.]” Royal v. State, 189 Ga. App. 756, 758 (377 SE2d 526) (1989).

4. Davis contends the trial court erred by denying his motion to strike the testimony of Goodroe or, in the alternative, give the jury a limiting instruction concerning her testimony. The victim testified the simple battery alleged in the accusation took place on April 10, 1988, during an argument inside the mobile home she shared with Davis. Goodroe’s testimony, admitted as part of the res gestae over Davis’s objection, was that she was a neighbor and that on that day, as she was in her yard watering her flowers, she noticed Davis’s wife “beating frantically on a neighbor’s door” and observed Davis follow her in his pickup truck. Goodroe stated that she saw Davis get out and jerk at his wife, trying to hit her, and that he pulled and kicked her. Goodroe testified that she then called the police. At the close of the State’s evidence, counsel for Davis argued that it was possible for the jury to convict Davis of simple battery based solely on his conduct as testified to by Goodroe, which was not the battery alleged in the accusation, and moved the court to strike Goodroe’s testimony, or to give limiting instructions. The trial court refused. We find no error. Although the State argues that the evidence is admissible under exceptions to the hearsay rule and the dissent cites Harrell v. State, 241 Ga. 181 (2) (243 SE2d 890) (1978), which is a case dealing with the exception to the hearsay rule embodied in OCGA § 24-3-2, the issue is not a hearsay problem. Davis objected to testimony by Goodroe of what she saw (David jerking at, kicking and pulling the victim on the neighbor’s porch), saying that the testimony described a simple battery other than that charged in the accusation.

The simple battery described in Goodroe’s testimony “occurred during the commission of the offense for which [Davis] was charged, and thus was an integral part of the res gestae and admissible in evidence. [Cits.]

“ ‘Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. (Cit.) Hence, acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae and it does not matter that the act is another criminal offense and does not tend to establish the main offense. (Cit.)’ [Cits.]” Cooper v. State, 188 Ga. App. 629 (373 SE2d 796) (1988).

In addition, Goodroe’s testimony was cumulative of testimony given by the victim without objection by Davis. “Q.: Now, what happened on April 10. Were you able to get away during the course of this incident? A: I ran down the street to a lady’s house. I was knocking on the door. He drug me off the doorstep. . . .” “Evidence which is cumulative of other legally admissible evidence of the same fact, renders harmless admission of incompetent evidence. [Cits.]” Lynn v. State, 181 Ga. App. 461, 464 (352 SE2d 602) (1987). The dissent makes much ado about Goodroe’s testimony that the defendant “pulled and kicked” the victim while the victim merely testified that the defendant “drug” her off the porch. The fact is that the act of being dragged is as much a simple battery (OCGA § 16-5-23 defines it as “(a) Intentionally [making] physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally [causing] physical harm to another”) as is being “pulled and kicked.”

Furthermore, the trial court clearly charged the jury that it had to find that Davis committed the offenses charged in the accusation in the “way and manner alleged” in order to find him guilty. Thus, even if it was error to refuse to give limiting instructions, no reversal is required.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., and Beasley, J., concur. Carley, C. J., Birdsong, Sognier and Cooper, JJ., dissent.

Sognier, Judge,

dissenting.

I must respectfully dissent to Division 4 of the majority opinion and to the judgment. Appellant’s argument, that it was possible for the jury to convict appellant of simple battery based solely on appellant’s conduct testified to by Goodroe, which was not the battery alleged in the accusation, and his motion to strike Goodroe’s testimony or, in the alternative, to instruct the jury that Goodroe’s testimony was not direct evidence of the crime charged, appear to me to be valid. Goodroe’s testimony was admissible only for the purpose of shedding light on what had already occurred inside the trailer (which was the battery charged in the accusation), and could not serve as an independent basis for finding appellant guilty of a separate battery, which had not been charged. The trial court refused, and in its ruling stated “there’s no reason why the jury cannot find that what [Goodroe] witnessed was a simple battery and convict him on the basis of that offense having occurred in her presence,” despite the fact that appellant had not been charged with that battery in the accusation, and Goodroe’s testimony had been admitted only as part of the res gestae.

In my view, that statement by the trial court brings the error of its ruling into focus. Although the majority concentrates on the admissibility of Goodroe’s testimony, I have no quarrel with the majority’s view that Goodroe’s testimony was admissible as part of the res gestae. The majority fails to inform us, however, why the requested limiting instruction was not required. “It is well recognized that when evidence is admitted for one purpose, as it was in the instant case, it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury. [Cits.]” Harrell v. State, 241 Ga. 181, 186 (2) (243 SE2d 890) (1978). Here, however, as in Harrell, appellant made such a request, and the “requested instruction would have informed the jury as to the limited purpose of the evidence and would have eliminated the possibility of the jury considering the evidence for any purpose other than that for which it was intended.” Id. Despite the majority’s attempt to distinguish Harrell on the basis that it involved hearsay, which is not relevant here, the quoted holding in Harrell is not restricted to hearsay matters. Moreover, although the majority finds Goodroe’s testimony merely cumulative of that of the victim, the victim testified only that appellant “drug” her off the doorstep, and not that he pulled or kicked her, as did Goodroe.

Appellant made a proper request for a limiting instruction, and the trial court’s failure to give such an instruction raised the possibility of the jury convicting appellant of an uncharged simple battery based solely on Goodroe’s testimony. I believe that was reversible error. Id.

Decided February 20, 1990

Rehearing denied March 13, 1990

John D. McCord III, T. Stanley Sunderland, for appellant.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Faye S. Pous, Assistant Solicitors, for appellee.

I am authorized to state that Chief Judge Carley, Judge Birdsong, and Judge Cooper join in this dissent.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A89A1980.
    HODGES v. THE STATE.
    (392 SE2d 262)
   Pope, Judge.

Hodges was convicted of two counts of child molestation. The evidence at trial allowed the jury to find that Hodges had given his minor daughter a “pelvic examination” after she fell off of her bicycle and that he had her remove her clothing so that he could measure her for a bra during which time he touched her breasts. There was evidence of similar transactions involving three older step-daughters in which Hodges gave the girls “pelvic examinations” to determine if their hymens were intact and in which he had them remove their clothes and rubbed their breasts, ostensibly to demonstrate to the girls how to examine their breasts for cancer.

1. Hodges argues that there was insufficient evidence that the offense charged in Count 1, the giving of the “pelvic examination,” occurred within the applicable statute of limitation. The record shows conflicting evidence on this point. At trial, the victim, Hodges’ daughter, testified that the incident occurred when she was six, seven or eight years old. The victim was born in August 1973; by her testimony at trial, the incident occurred either in 1979, 1980 or 1981, outside the statute of limitation period which ran from February 1984 to February 1988. However, the State impeached this testimony with a prior inconsistent statement made by the victim to Diane Walden, a Department of Family & Children Services worker, in which the victim said that she was twelve or reaching adolescence at the time of the incident. This would put the incident in 1985, within the statute of limitation. Diane Walden also testified at trial that this is what the victim told her.

“[A] prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence . . . .” Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982). We find that the evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that the incident occurred within the applicable statute of limitation.

Decided February 23, 1990

Rehearing denied March 13, 1990.

John W. Greer III, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Assis tant District Attorney, for appellee.

2. Hodges, represented on appeal by new counsel, argues that his trial counsel was ineffective because he did not interview three witnesses who would have testified that the incidents alleged occurred outside the statute of limitation. The trial court had a hearing on the issue. The record shows that trial counsel was an experienced criminal trial lawyer of some 25 years who had tried between 500 and 1,000 cases as a prosecutor and defense counsel. He testified that he met with Hodges on several occasions before trial and that he was prepared to try the case and that Hodges told him of no defense that was not presented at trial. The trial lawyer also testified that he interviewed each of the witnesses at issue and that it was his opinion that their testimony was cumulative, circumstantial and that they would not be effective witnesses in the face of cross-examination.

“ ‘To establish that there has been actual ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced the defense. In order to prove the defense has been prejudiced, defendant must show there is a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional deficiencies. (Cit.)’ ” Waddell v. State, 190 Ga. App. 499 (379 SE2d 592) (1989). Our review of the record convinces us that Hodges has not made the requisite showing and that he received effective assistance of counsel.

3. Hodges enumerates as error the trial court’s decision to allow the State to play during closing argument the videotape of the victim’s prior inconsistent statement that had been admitted into evidence. He argues that, in effect, the State was allowed to recall a witness during closing argument. We do not agree. The replay of a portion of the videotape is not a recall of a witness, but rather the verbatim repetition of testimony already in evidence. “Since counsel in argument clearly have the right to comment on the evidence, it is not improper for them to repeat what testimony was, to read from documents which have been admitted in evidence, or to read from admitted transcripts of recordings played for the jury.” Ramsey v. State, 165 Ga. App. 854, 859 (303 SE2d 32) (1983). As the videotape statement had been admitted into evidence, we find no abuse of the trial court’s discretion in allowing counsel to replay the tape rather than having a transcript prepared and read.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A2145.
    RADFORD v. MAYOR & ALDERMEN OF SAVANNAH.
    (392 SE2d 23)
   McMurray, Presiding Judge.

Plaintiff Radford filed this action for damages, arising from the intentional and negligent infliction of emotional distress, against the defendant Mayor and Aldermen of the City of Savannah. The complaint alleges that on August 9, 1984, plaintiff was attending the funeral of her deceased husband at a cemetery operated by defendant, when employees of defendant, acting within the scope of their employment, wilfully and wantonly interfered with the burial of plaintiff’s deceased husband, causing plaintiff to suffer severe embarrassment and humiliation.

This appeal is taken from the grant of summary judgment in favor of defendant and against plaintiff. The súperior court’s order states two independent grounds for its decision. Held:

1. First, the superior court held that the operation of the cemetery is a governmental function. If this conclusion is correct, plaintiff’s claim is barred by municipal immunity. See OCGA § 36-33-1. In reaching this holding, the superior court declined to follow our decision in City of Atlanta v. Rich, 64 Ga. App. 193 (12 SE2d 436), and characterized that decision as “seemly abandoned,” apparently due to the criticism of Rich’s reasoning stated in City of Atlanta v. Mapel, 121 Ga. App. 567 (174 SE2d 599). In the Rich case, we found the operation of a cemetery by a municipality under the circumstances stated in that decision to be a ministerial function and we continue to adhere to that position.

Additionally, we find the facts and circumstances of the Rich case indistinguishable from those in the case sub judice. While there is evidence that the cemetery in the case sub judice, Bonaventure Cemetery, is open to the public and used by the public at large for some recreational purposes, including picnicking and sightseeing, such ancillary uses do not alter the fact that at the time of the incident in question the defendant’s employees were performing a task related solely to the cemetery function of the facility. Insofar as there continue to be lots sold for burial purposes and related services provided, the operation of Bonaventure Cemetery is a ministerial function, and the superior court erred in ruling otherwise.

2. As a second ground for its grant of defendant’s motion for summary judgment, the superior court also concluded that the damages plaintiff seeks are in the nature of punitive damages which cannot be recovered from a municipality. It is true that absent statutory authority a municipality cannot be held liable for punitive damages. Camp v. Columbus, Ga., 252 Ga. 120, 122 (3) (311 SE2d 834); City of Columbus v. Myszka, 246 Ga. 571, 572 (4) (272 SE2d 302). However, generally a bar against an award of punitive damages is not alone sufficient to warrant the grant of a defendant’s motion for summary judgment since an accompanying claim for compensatory damages would preclude the grant of summary judgment. Therefore, the superior court’s ruling necessarily implies a conclusion that the plaintiff seeks only punitive damages and presents no claim for compensatory damages. Where, as in the case sub judice, plaintiff’s whole injury is to “peace, happiness or feelings,” the damages allowable are determined under OCGA § 51-12-6. Mallard v. Jenkins, 186 Ga. App. 167 (1), 168 (366 SE2d 775). (The language of OCGA § 51-12-6 prior to amendment by the Tort Reform Act of 1987, Ga. L. 1987, p. 915, is applicable to the case sub judice. Id at 169 (2).) Since there are several respects in which the damages allowable under OCGA § 51-12-6 are analogous to the punitive damages allowable under OCGA § 51-12-5, damages may not be awarded under both sections lest a double recovery be permitted. Westview Cemetery v. Blanchard, 234 Ga. 540, 543 (B) (216 SE2d 776). The damages awarded under OCGA § 51-12-6 are in part punitive (Id at 545), but also serve to compensate for the extent of the injury. Id at 546. Thus, as OCGA § 51-12-6 also provides for compensatory damages, the prohibition against awarding punitive damages against a municipality does not bar plaintiff’s claim. The superior court erred in granting defendant’s motion for summary judgment.

Decided February 27, 1990

Rehearing denied March 13, 1990

Ashman & Zipperer, Alex L. Zipperer, Ralph R. Lorberbaum, for appellant.

Friedman, Haslam, Weiner & Ginsberg, Patrick T. O’Connor, Wiseman, Blackburn & Futrell, James B. Blackburn, for appellee.

Judgment reversed.

Carley, C. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    A89A1872.
    DERBYSHIRE et al. v. UNITED BUILDERS SUPPLIES, INC.
    (392 SE2d 37)
   Beasley, Judge.

Consideration of the issues involves the interlocking relationship of appellant John Derbyshire and certain corporations he formed and the extent to which these corporate entities may be disregarded in this case. Derbyshire owns 100 percent of the stock in three corporations, Thermocon International, Inc., and Durlin & Associates, Inc., (d/b/a Weathertite Contracting Company), and Jeslan Enterprises, Inc. In turn Jeslan Enterprises, Inc., completely owns Stanley Steele Company, Inc., (d/b/a Thermocon Southeast) which controls National Boric Acid Corporation.

All were defendants in an action brought by United Builders Supplies, Inc., seeking recovery under a lease agreement and for damages to the premises owned by United Builders. Defendants appeal after a jury verdict in favor of plaintiff.

On February 15, 1984, Stanley Steele Company, then an independent business, leased premises in Columbus from United Builders Supplies. The agreement was for three years ending January 31, 1987, with an option for three three-year additional terms. The lease also contained a provision for assignment and for payment of attorney fees in the event of default.

In 1985 and 1986 Richard Lane, Vice-President of United Builders, met with John Derbyshire who informed him that Derbyshire intended to move his insulation business, under the name Thermocon, into the Columbus area as part of a plan for national expansion. Derbyshire indicated an interest in purchasing Stanley Steele, extending the lease and later buying the property owned by United Builders.

In September 1986 Derbyshire formed a wholly-owned corporation, Jeslan Enterprises, for the purpose of acquiring 100 percent interest in Stanley Steele. On September 25 Jeslan Enterprises purchased all the stock of Stanley Steele.

On October 28, Keith Wright, signing as Secretary-Treasurer under a letter head styled “Thermocon” with the Columbus leased premises address, informed United Builders’ Lane that “we would like to exercise our option to extend the lease for an additional term of three years as indicated in paragraph 25 of the original lease,” bringing it to January 31, 1990.

In 1987 lease payments were delinquent and Lane met with certain corporate officers of Thermocon and Stanley Steele and also spoke with Derbyshire over the telephone about bringing the payments current. Lane understood that Derbyshire and Thermocon were responsible for the rent and informed the officials that he was looking to them for payment. He received a letter on May 14 under the name of Thermocon Southeast, signed by Keith Wright, setting forth a payment plan. Subsequently payments stopped and Lane contacted Derbyshire who said he would not be pressured about the rent.

During this time the building was occupied or being used by each of the defendant corporations and several of the officers worked for more than one corporation. Besides his exclusive ownership and control of the three principal corporations, Derbyshire was president of Stanley Steele, Thermocon International and Jeslan Enterprises. Stanley Steele and National Boric Acid issued paychecks out of the Columbus location.

On November 7 the premises were vacated and the lease agreement abandoned. Extensive damages were done to the premises when defendants moved out and two large vats of sulfuric acid, were left behind. United Builders expended almost $14,000 in repairs and renovations in order to make the property suitable for leasing. Neither Derbyshire nor his corporations gave any notice to United Builders. Derbyshire refused to respond to any inquiries about the damages or of future intentions with regard to the lease.

United Builders sued in December. Defendants answered; Derby-shire, Thermocon International and Durlin & Associates d/b/a Weathertite moved for summary judgment; Derbyshire and Thermocon moved to dismiss on jurisdictional grounds. Discovery was completed and the motions were denied.

Plaintiff filed an amended and recast complaint naming Derby-shire and the corporations as they appear in the initial paragraph of this opinion. A jury returned a verdict in favor of plaintiff for $125,000. Judgment was entered thereon and appeal was taken. The judgment was then modified to award $72,381.60 in lost rent, $10,857.13 for attorney fees, $5,366.26 for damages to the property and $8,000 for expenses to make the premises rentable. Appeal also from that judgment followed.

1. Derbyshire, Thermocon and Jeslan assign error on the denial of their motions to dismiss for lack of jurisdiction. Jeslan must be eliminated from consideration because it did not file a motion to dismiss on this basis. As to Derbyshire and Thermocon their motions were denied on the grounds, as found by the trial court in separate orders as to each, that “there remain genuine issues as to material facts regarding whether this Court has jurisdiction over this defendant.”

This might be a proper ruling to make on motion for summary judgment, but a motion based on lack of jurisdiction targets a matter in abatement, not the merits of a case. Behar v. Aero Med Intl., 185 Ga. App. 845 (1) (366 SE2d 223) (1988); Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459) (1974). Summary judgment is appropriate only when ascertaining whether the merits of a case should reach a jury. International Indem. Co. v. Blakey, 161 Ga. App. 99, 101 (1) (289 SE2d 303) (1982).

When ruling on a motion to dismiss based upon jurisdictional grounds, the trial court must make the determination acting as the trier of fact. Big Canoe Corp. v. Williamson, 168 Ga. App. 179, 180 (308 SE2d 440) (1983); Montgomery v. USS Agri-Chem. Div., 155 Ga. App. 189, 190 (1) (270 SE2d 362) (1980). Its evaluation rests on where the preponderance of evidence lies, not necessarily on whether the issue may be decided as a matter of law. Barrow v. Gen. Motors Corp., 172 Ga. App. 287, 288 (2) (322 SE2d 900) (1984). A holding that issues of fact remained would necessitate the resolution of those facts and a determination of jurisdiction by the trial court; it would not be cause for submission to a jury.

The effect of the trial court’s ruling was to avoid its responsibility to decide the jurisdictional question. OCGA §§ 9-11-12 (d) and 9-11-43 (b); Ogden Equip. Co., supra; Montgomery, supra at 190; Myers v. McLarty, 150 Ga. App. 432, 433 (258 SE2d 56) (1979). We do not construe the ruling as an order that the determination be deferred until trial under OCGA § 9-11-12 (d) (Sherwood Mem. Park v. Bryan, 142 Ga. App. 664 (236 SE2d 903) (1977)), because no further ruling on the issue was ever made. It was left unresolved. The right for any reason principle does not rise to save the day because a judgment based on an erroneous legal conclusion or theory is reversible error. Universal Scientific v. Wolf, 165 Ga. App. 752, 753 (2) (302 SE2d 616) (1983); Ayers v. Yancey Bros. Co., 141 Ga. App. 358, 361 (2) (233 SE2d 471) (1977).

The ruling on the motions must be reversed and remanded for a hearing and judgment predicated on the relevant principles of law. If the court finds no jurisdiction as to Derbyshire and Thermocon, the final judgment rendered against them must fall.

2. (a) Because they were not signatories on the lease, defendants Derbyshire, Thermocon, Jeslan, Durlin and National Boric Acid contend there is no basis for holding them liable.

Evidence that defendant corporations jointly occupied the building gives a sound reason for finding them jointly liable for the physical damages to the building. Whether they all may be liable on the lease is another matter. Their using the premises does not per se impose liability upon them for the rent. A sublessee incurs liability to the lessor for the rent only where he assumes liability not merely because of his status. 49 AmJur2d 488, Landlord & Tenant, § 509, and cases cited. Unless they were joint tenants or cotenants they would not be liable for the rent.

Two reasons would sustain liability here. First, the letter from Thermocon, signed by Keith Wright, indicates that Thermocon and Derbyshire were exercising the right to extend the lease although there was no written assignment of the lease to those two. Performance by one party and acceptance by the other or such part performance as would render it a fraud on the part of the party refusing to comply would establish an enforceable contract even though there was no compliance with the Statute of Frauds. OCGA § 13-5-31 (2) & (3). This theory for sustaining the verdict, while viable, was not presented to the jury.

Second, the individual defendant and the corporations, in addition to Stanley Steele, could be impressed with responsibility for complying with the obligations of the lease and particularly its requirements for payment of rent by the process of piercing the corporate veil or disregarding the corporate entity.

An inherent purpose of incorporation is insulation from liability. A corporation possesses a legal existence separate and apart from that of its officers and shareholders so that the operation of a corporate business does not render officers and shareholders personally liable for corporate acts. Raynor v. American States Ins. Co., 176 Ga. App. 564, 565 (1) (337 SE2d 43) (1985); Trans-State v. Barber, 170 Ga. App. 372, 374 (1) (317 SE2d 242) (1984).

Using terminology such as “piercing the corporate veil,” “looking at the substance rather than at the form,” or “disregarding the corporate fiction,” our courts have disregarded the separate entity of a corporation where it has overextended its privileges. Bone Constr. Co. v. Lewis, 148 Ga. App. 61, 63 (4) (250 SE2d 851) (1978). To activate this cut-through, there must be abuse of the corporate form. “Sole ownership of a corporation by one person or another corporation is not a factor, . . . and neither is the fact that the sole owner uses and controls it to promote his ends.” Amason v. Whitehead, 186 Ga. App. 320, 322 (367 SE2d 107) (1988).

The law intervenes when the separate personalities of the corporation and its owner no longer exist. The question is whether the corporation serves as the alter ego or business conduit of its owner. To establish this, “it must be shown that the stockholders’ disregard of the corporate entity made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist; and to adhere to the doctrine of corporate entity would promote injustice or protect fraud.” Trans-American Communications v. Nolle, 134 Ga. App. 457, 460 (lb) (214 SE2d 717) (1975).

“When litigated, the issue of ‘piercing the corporate veil’ is a jury question.” Fla. Shade &c. Growers v. Duncan, 150 Ga. App. 34, 35 (256 SE2d 644) (1979). For the issue to be submitted to a jury there must be evidence that the corporate arrangement was a sham, used to defeat justice, to perpetrate fraud or to evade statutory, contractual or tort responsibility. Keller Bldg. Prods. v. Young, 137 Ga. App. 682, 685 (1) (224 SE2d 815) (1976). Accord Williams Plaza v. Sedgefield Sportwear Div., 164 Ga. App. 720, 721 (297 SE2d 342) (1982); Farmers Warehouse v. Collins, 220 Ga. 141, 150 (2d) (137 SE2d 619) (1964).

The proof offered was somewhat ambiguous and certainly not free from doubt, but it indicated Derbyshire and his family of corporations acted as a unit. Derbyshire referred to his corporations in an interchangeable manner and in testifying had difficulty, remembering what corporation did what and which corporation had which officers. His confusion was understandable because some of them worked for more than one corporation and because Derbyshire was also the president of Stanley, Thermocon and Jeslan as well as the sole owner of three corporations. In dealings with United Builders the corporations appeared not as separate units but as an amalgamated whole. The acceptance of the option for an extension of the lease was on “Thermocon” letterhead and stated “we would like to exercise our option.” The corporations functioned together to produce a common product and of course used the same address and were housed in the same building, the leased premises.

Derbyshire apparently employed the corporations as his alter egos or as business conduits. When used as a subterfuge to work an injustice, this furnishes grounds which in equity and good conscience would justify the disregard of their separate entities.

Applying the rule that an appellate court construes the evidence in favor of the verdict, Wright v. Thompson, 236 Ga. 655, 659 (V) (225 SE2d 226) (1976), there was some evidence to sustain the finding of the jury that “we” meant “we.”

(b) Having determined there were grounds to disregard the corporate entities, the Statute of Frauds issue becomes moot as it is immaterial which of Derbyshire’s alter egos actually executed the lease extension.

3. Defendants moved for directed verdict as to attorney fees under the contract on the grounds that plaintiff failed to comply with OCGA § 13-1-11. On appeal they enumerate as error the denial of their joint motion. Plaintiff contended below that it was not necessary to give notice or otherwise comply with the Code section. It now asserts that if the Code section were applicable then there was substantial compliance, citing Carlos v. Murphy Warehouse Co., 166 Ga. App. 406, 408 (2) (304 SE2d 439) (1983).

The provision for attorney fees in the lease agreement is governed by OCGA § 13-1-11. Kasum Communications v. CPI North Druid Co., 135 Ga. App. 314 (217 SE2d 492) (1975). Accord Reach Out v. Capital Assoc., 176 Ga. App. 585, 586 (2) (336 SE2d 847) (1985); Burgess v. Clermont Properties, 141 Ga. App. 112 (2) (232 SE2d 627) (1977). While substantially complying with the code section is sufficient, it is necessary that the essentials as described in General Elec. Credit Corp. v. Brooks, 242 Ga. 109, 119 (249 SE2d 596) (1978), be met. Considering the complaint as providing notice, nothing therein warned defendants they had 10 days from receipt of notice to pay the sum owed and avoid attorney fees. A directed verdiet on this issue was mandated.

Decided March 13, 1990.

Bradford C. Dodds, John W. Denney, for appellants.

Kenneth M. Henson, Jr., for appellee.

Direction is given that attorney fees be written off.

Judgments affirmed in part and reversed in part; and case remanded with direction.

Car ley, C. J., and McMurray, P. J., concur.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A89A2015.
    MERCER v. MERCER.
    (392 SE2d 41)
   McMurray, Presiding Judge.

Appellant Gary Mercer and appellee Betty Ruth Von Demfange, nee Mercer, were divorced in 1982. The divorce decree was entered in the Circuit Court of the Thirteenth Judicial Circuit of the State of Florida. Custody of the parties’ two children was awarded to the father and mother jointly. Jurisdiction was retained, however, “for the possible entry of any future orders related to child support, custody and property.”

Within a few months of the entry of the divorce decree, the mother took the children without permission to Douglas County, Georgia. When the father discovered the whereabouts of the children, he brought this action in the Superior Court of Douglas County, Georgia, seeking their custody on December 27, 1982. In so doing, he informed the Superior Court of Douglas County, Georgia, of the Florida joint custody decree. He also informed the superior court that no other custody proceedings pertaining to the children were pending. The mother filed an answer and counterclaim seeking custody of the children.

On December 28, 1982, the superior court awarded the father temporary visitation. The father took advantage of the visitation award and returned to Florida with the children. There, the father initiated a modification proceeding on January 11, 1983, to have himself declared the primary custodian of the children. The modification proceeding was filed with the same case number as the original Florida divorce action.

In the modification petition, the father informed the Florida court of the custody action pending in the Superior Court of Douglas County, Georgia. The father added that he deemed it best to have the custody action in Georgia dismissed. But that was not done until February 8, 1988.

The mother moved back to Florida in January 1983. Represented by counsel, she participated in the Florida modification proceeding and on September 27, 1983, the Florida court awarded the father “primary residential custody” of the children. The mother was given visitation rights. It was ordered that neither party was to remove the children from the jurisdiction of the Florida court without the court’s prior consent.

The mother remained in Florida until July 1988. At that time she took the youngest child (by this time the older child had reached majority) back to Douglas County, Georgia.

In the meantime, as noted above, the father dismissed his superior court complaint without prejudice. Furthermore, he filed a certified and exemplified copy of the Florida decree awarding him “primary residential custody” of the children in the office of the Clerk of the Superior Court of Douglas County, Georgia.

During the hearing in the Superior Court of Douglas County, Georgia, the father attempted to introduce in evidence the modified Florida decree awarding him “primary residential custody.” The superior court would not permit the decree to be introduced in evidence.

Following the hearing, the superior court determined on January 30, 1989, inter alia, that the mother is fit to have custody of the youngest child and that it is in the best interest of the youngest child to change custody from the father to the mother. In so ruling, the superior court failed to give any consideration whatsoever to the effect of the Florida decree awarding “primary residential custody” of the children to the father.

We granted the father’s application for a discretionary appeal. Held:

1. The superior court erred in failing to consider the effect of the Florida decree awarding the father “primary residential custody” of the children. See OCGA §§ 19-9-54; 19-9-55. See also Youmans v. Youmans, 247 Ga. 529, 532 (276 SE2d 837). Accordingly, the judgment of the superior court is reversed and the case is remanded with direction that the superior court consider the effect of the Florida decree awarding the father “primary residential custody” prior to the rendition of its ruling in the case sub judice. See generally Tapley v. Veal, 182 Ga. App. 880, 882 (357 SE2d 268).

2. We do not reach the remaining enumerations of error since the superior court made no ruling upon the effect of the Florida decree. See generally Kipp v. Rawson, 193 Ga. App. 532 (388 SE2d 409).

Judgment reversed and case remanded with direction.

Carley, C. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur, but it should be pointed out that the opinion in effect requires the trial court which excludes consideration of the foreign decree to make an explicit ruling that the foreign court “does not now have jurisdiction ... or has declined to assume jurisdiction,” in the words of OCGA § 19-9-54 (a) (1). This is a “jurisdictional threshold.” Gordon v. Gordon, 185 Ga. App. 100, 102 (363 SE2d 353) (1987); Osgood v. Dent, 167 Ga. App. 406, 408 (1) (306 SE2d 698) (1983). The Georgia court could not issue a new custody decree unless one of these two alternatives existed. If one did exist so that a court of this State could fashion new custody terms, the law does not mandate a consideration of the foreign decree. This is not an instance of simultaneous proceedings, which is governed by OCGA § 19-9-46.

Decided March 13, 1990.

Dodson & Emerson, David T. Emerson, for appellant.

Custer, Hill & Clark, Lawrence B. Custer, Douglas A. Hill, for appellee.

Since the record does not clearly show why the trial court refused to admit into evidence the foreign decree, I agree that remand is imperative.


author: Cooper, Judge. Deen, Presiding Judge,

text:
    A89A2025.
    LAMB v. GEORGIA-PACIFIC CORPORATION.
    (392 SE2d 307)
   Cooper, Judge.

Appellant, a general contractor residing in Ohio, was hired to construct a meeting hall. For the construction and installation of the floor, appellant purchased, from an Ohio company, particle board manufactured by appellee. Shortly after the construction was completed, portions of the floor began to “bubble,” and appellant, alleging that the floor “bubbled” because the particle board was defective, sued appellee, seeking actual and punitive damages. This appeal follows the trial court’s grant of summary judgment to appellee.

1. Appellant first enumerates as error the trial court’s consideration of appellee’s motion for summary judgment, which was filed after the case appeared on a trial calendar. We find no merit to appellant’s argument. There is no evidence in the record that the motion was filed to delay the trial, and we find no error with the trial court’s consideration of the motion.

2. In his second and fourth enumerations of error, appellant contends that the trial court erred in granting summary judgment on Count I of his complaint. Count I of appellant’s complaint is not pleaded with particularity, but appears to be a claim for strict liability in tort since no breach of duty or negligence has been alleged. As to the second enumeration, appellee argues that the only damages appellant seeks are “purely economic losses” which are not recoverable under negligence or strict liability theories. Long v. Jim Letts Oldsmobile, 135 Ga. App. 293 (2) (217 SE2d 602) (1975). Appellant, however, argues that his action is not based solely upon economic loss because the particle board caused damage to property other than the particle board, specifically the tile portion of the floor. See Mike Bajalia, Inc. v. Amos Constr. Co., 142 Ga. App. 225 (1) (235 SE2d 664) (1977). We find that, with the exception of damage to the tile, all of the damages for which appellant seeks compensation are for purely economic losses and are not recoverable under theories of either negligence or strict liability.

Appellee supported its motion for summary judgment with the affidavits of two experts, one who stated that the “bubbling” was caused by moisture under the particle board underlayment, and another who stated that appellant violated several industry standards in installing the floor, including the failure to employ a moisture barrier. Appellant .relies on the affidavit of an expert who stated that the particle board was not subject to moisture, and that it had been properly installed. Neither appellant’s nor appellee’s expert gives an opinion as to any defect or lack of a defect in the particle board. Rather, both affidavits focus on the cause of the “bubbling” (other than any defect) in the floor. We agree with appellee that appellant has failed to submit any evidence showing that the particle board was defective. However, appellee’s evidence has also failed to refute the allegation of appellant’s complaint. “In order to pierce allegations of material fact contained in the plaintiff’s petition, the evidence offered by defendant on motion for summary judgment must unequivocally refute those allegations and must clearly show what is the truth of the matter alleged.” Watkins v. Nationwide Mut. &c. Ins. Co., 113 Ga. App. 801, 802 (149 SE2d 749) (1966). “If the defendant/movant does not pierce the pleadings and disprove one or more of the essential elements of plaintiff’s case, the mere fact that the evidence submitted by the plaintiff does not prove the latter’s case is not tantamount to the defendant/movant’s carrying his burden. [Cits.]” Scott v. Owens-Illinois, 173 Ga. App. 19, 21 (325 SE2d 402) (1984). “ ‘Summary judgments should only be granted where, construing all inferences against the movant, it yet appears without dispute that the case can have but a single outcome.’ [Cits.]” Bragg v. Missroon, 186 Ga. App. 803, 805 (368 SE2d 564) (1988). Appellee has failed to pierce the bare allegation of appellant’s complaint that the particle board was defective, and, notwithstanding the affidavits presented, an issue of fact remains as to the presence or absence of a defect. Accordingly, in response to the fourth enumeration, we find that summary judgment was not properly granted as to Count I of the complaint.

3. In his third enumeration of error, appellant contends that the trial court erred in granting summary judgment on Count II of his complaint. Count II of the complaint alleges that appellee wilfully and wantonly refused to repair the defective particle board causing damage to appellant’s professional reputation. Appellant having submitted no evidence that appellee’s conduct was wilful or wanton, we find appellant’s argument to be totally without merit. Appellant’s argument that he is entitled to punitive damages because the failure of appellee to assume responsibility for the allegedly defective particle board constituted an “aggravating circumstance” under OCGA § 51-12-5 is likewise without merit. The trial court properly granted summary judgment to appellee on this count.

4. In his fifth enumeration of error appellant contends that the trial court erred in granting summary judgment on Count III of his complaint, which alleges a breach of the implied warranty of merchantability. Under OCGA § 11-2-314 a warranty that the goods are merchantable is implied in a contract for their sale. “As this warranty clearly arises out of a contract of sale of goods, it can only run to a buyer who is in privity of contract with the seller. [Cit.]” Chaffin v. Atlanta Coca Cola Bottling Co., 127 Ga. App. 619 (1) (194 SE2d 513) (1972). Unlike the cases relied on by appellant, in this instance there is no evidence of any express warranty made by appellee which would extend to appellant as the ultimate purchaser. “[I]f a defendant is not the seller to the plaintiff-purchaser, the plaintiff as the ultimate purchaser cannot recover on the implied or express warranty, if any, arising out of the prior sale by the defendant to the original purchaser, such as distributor or retailer from whom plaintiff purchased the product. [Cit.]” (Punctuation omitted.) Chem-Tech Finishers v. Paul Mueller Co., 189 Ga. App. 433 (1) (375 SE2d 881) (1988). There being no privity between appellee and appellant, the trial court’s grant of summary judgment was proper.

5. Appellant contends in his sixth enumeration of error that Ohio law would govern the count based upon a breach of the implied warranty of merchantability. A review of the record reveals that this is the first time appellant has raised this issue. “Enumerations of error which raise questions for the first time on appeal present nothing for decision. [Cits.]” (Punctuation omitted.) Wilson v. City of Atlanta, 184 Ga. App. 651 (362 SE2d 460) (1987).

6. Appellant’s argument that the trial court erred in taking “judicial notice” that the floor and particle board were improperly installed is without merit. We have reviewed the record and conclude that the comments made by the trial judge do not amount to judicial notice.

Judgment reversed in part, affirmed in part.

Carley, C. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier and Pope, JJ., concur. Deen, P. J., and Beasley, J., dissent.

Decided March 13, 1990.

Lamb & Associates, T. Gordon Lamb, David S. Beale, Andrew R. Bickwit, for appellant.

Saveli & Williams, William E. Turnipseed, Jennifer H. Chapin, for appellee.

Deen, Presiding Judge,

concurring in part and dissenting in part.

In this case, the appellant alleged that the particle board manufactured by the appellee contained a defect which caused the board to “bubble.” The appellee refuted this allegation with the expert’s affidavit indicating that the “bubbled” particle board submitted for examination had a high moisture content and that dry particle board does not “bow or cup.” The appellee’s expert did not literally declare the absence of any defect, but I do not believe his affidavit is subject to any reasonable construction other than that the bubbling was due to moisture rather than any defect.

The appellant raised the specific issue of the cause of the bubbling of the particle board, and the appellee’s evidence refuted the specific allegation that the bubbling was caused by a defect in the board. The majority opinion’s contrary conclusion in Division 2 results from too technical a reading of the affidavits in this case. “Now, formalism and technicality are very important to the successful and orderly administration of justice in any juridic system; but there is too much plain common sense stored away in the substructure upon which our whole system is based to allow of any such result. . . .” Roberts v. Arnall, 9 Ga. App. 328, 332 (71 SE 590) (1911).

I concur fully with the majority opinion except for Division 2, from which, for the reason stated above, I respectfully dissent. I am authorized to state that Judge Beasley joins in this opinion.


author: Cooper, Judge.

text:
    A89A2069.
    THORNTON et al. v. AMERICAN HOME ASSURANCE COMPANY.
    (392 SE2d 43)
   Cooper, Judge.

Andreas and Margaret Anne Gruentzig died simultaneously in a plane crash in which Dr. Gruentzig was the pilot and Mrs. Gruentzig was a passenger. While both decedents were insured under an accidental death insurance policy obtained by the Emory University Clinic in which Dr. Gruentzig was a partner, death benefits were paid only for Mrs. Gruentzig since the policy excluded coverage for death while piloting an airplane. Her failure, however, to designate a beneficiary triggered the payment of claims provision which dictated that payment be made to the “estate of the insured person.” When the estates of both decedents sought the benefits due on account of Mrs. Gruentzig’s death, the insurance company filed an interpleader and tendered the insurance policy proceeds into the court registry. This appeal follows the trial court’s construction of the policy’s payment of claims provision, with the resulting holding that both estates were to share equally in the proceeds of the policy.

Appellants, the co-administrators of Mrs. Gruentzig’s estate, contend that the trial court erred in ruling that the proceeds payable on the death of Mrs. Gruentzig should be paid equally to the estate of two of the many “insured persons” under the policy rather than payable entirely to the estate of the “insured person” whose death triggered the insurance company’s payment obligation. While we do not necessarily adopt appellants’ interpretation of the trial court’s ruling, we do agree that the court erred in its ruling on the parties’ cross motions for summary judgment. The question before us is purely the proper construction of the phrase, “estate of the insured person,” used in the payment of claims provision of the policy.

“ [A] contract of insurance should follow the cardinal rule of construction so as to carry out the true intention of the parties, and their rights are to be determined by the terms of the contract. Its language should receive a reasonable construction and not be extended beyond what is fairly within its plain terms. Where the language ... is unambiguous, as here, and but one reasonable construction is possible, . . . [cit.] [i]t is the function of an appellate court to construe the contract as written. . . . [Cit.]” Fidelity &c. Co. of Md. v. Sun Life Ins. Co., 174 Ga. App. 258 (1) (329 SE2d 517) (1985).

Both Dr. and Mrs. Gruentzig were eligible for coverage under the policy; Dr. Gruentzig as a partner and Mrs. Gruentzig as his spouse. The term “insured person” used throughout the policy is defined to include both the “insured” and the “insured dependent.” Its singular reference indicates that where applicable, it refers to either the insured or the insured dependent. In the payment of claims provision and in the context of this case, it is clear that “insured person” is the one “person” who failed to make an effective beneficiary designation and whose death triggered the insurance company’s obligation to pay, in this case, Mrs. Gruentzig. The language is clear and unambiguous. Mrs. Gruentzig’s estate is entitled to the proceeds in their entirety. Fidelity, supra.

It is not reasonable to construe the term, as it is used in this policy, to refer to both Dr. and Mrs. Gruentzig. There is no language in the policy that requires her estate to share the proceeds with any other estate. It is clear that had Mrs. Gruentzig been the only death, her estate would have received all the proceeds. Dr. Gruentzig, in such an instance, would have no estate. Dr. Gruentzig’s status should be irrelevant to the payment of benefits upon the death of Mrs. Gruentzig.

Decided March 13, 1990.

Alston & Bird, Jay D. Bennett, Walter G. Elliott II, for appellants.

King & Spalding, Ralph A. Pitts, David C. Nutter, for appellee.

Judgment reversed.

Carley, C. J., and Deen, P. J., concur. Birdsong, J., disqualified.


text:
    A89A2313.
    SAYLER MARINE CORPORATION v. DIXIE METAL COMPANY.
    (392 SE2d 45)
   Cooper, Judge.

This appeal is from the confirmation by the superior court of an arbitrator’s award in a construction contract dispute. Submitted to arbitration were appellee subcontractor’s claims against appellant general contractor relating to a contract for construction of a warehouse. After an extended hearing and discussion of the case, the arbitrator made several awards in favor of appellee, including an interest award calculated from March 1, 1986, to the date of the award total-ling $30,699.58. Appellant’s sole enumeration of error is that the superior court erred in confirming the interest award.

1. The contract at issue describes the “Work” to be performed thereunder as including the provision by appellee of a “water tightness bond” covering the building. Final payment under the contract is due when the “Work,” as described therein, is “fully completed.” Any payments not paid when due are to bear interest from the date payment is due at the legal rate prevailing at the location of the warehouse. Thus, the contract clearly requires a bond from appellee before the “Work” can be “fully completed,” before payment is due and before interest can begin to run. In his award, the arbitrator indicated that a bond had been “proposed.” From the record submitted to us, we cannot determine whether the requirement for a bond as stated in the contract (as opposed to a bond meeting certain requirements suggested by the arbitrator) has in fact been satisfied, such that the “Work” can be deemed completed. It appears to us that the arbitrator did determine from the evidence presented that the actual construction work and necessary roof repair had been substantially completed. However, by awarding interest, the arbitrator indicated that he considered all the “Work” to be fully complete. Without a specific finding as to whether the requisite bond under the contract was submitted, we cannot determine if the arbitrator overstepped his authority or imperfectly executed his authority in awarding interest. OCGA § 9-9-13.

Decided March 13, 1990.

Hunter, MacLean, Exley & Dunn, Robert S. Glenn, Jr., Douglas M. Muller, Wade W. Herring II, for appellant.

Peterson, Young, Self & Asselin, Gregg E. Bundschuh, for appellee.

2. Furthermore, the arbitrator ruled that interest should begin to run on March 1, 1986. There is no evidence in the record before us or in the arbitration award to support the arbitrator’s conclusion that March 1, 1986, is an appropriate date on which to begin the computation of interest. Again, without sufficient support in the record for the use of this particular date, we cannot determine if the interest award was within the arbitrator’s authority. Accordingly, we remand to the superior court for action not inconsistent with the decision of this court and the provisions of OCGA § 9-9-13. See West v. Jamison, 182 Ga. App. 565 (356 SE2d 659) (1987) and Jamison v. West, 191 Ga. App. 431 (382 SE2d 170) (1989).

3. Appellee’s motion for damages for a frivolous appeal is denied. Appellant’s enumerations are not “so specious as to warrant the conclusion that this appeal was taken for the purpose of delay only.” Ale-8-One of America v. Graphicolor Svcs., 166 Ga. App. 506 (10) (305 SE2d 14) (1983).

Judgment vacated and case remanded with direction.

Deen, P. J., and Birdsong, J., concur.


author: Sognier, Judge.

text:
    A90A0112.
    BROOKS v. BOYKIN.
    (392 SE2d 46)
   Sognier, Judge.

Kenneth Brooks filed suit against Elizabeth Boykin, seeking either to recover damages for breach of a contract for the sale of land or to obtain specific performance of the contract. His appeal from the trial court’s order denying his motion for summary judgment and granting Boykin’s motion to dismiss was transferred by the Supreme Court to this court.

The record reveals that in August 1988, appellant and appellee entered into a contract whereby appellee agreed to sell a certain parcel of land in Chatham County described as containing “approximately 11 acres, more or less.” When appellant’s survey of the parcel established that it was composed of over 18 acres, appellee refused to close the sale on either the scheduled date, September 15,1987, or the time to which the contract was extended, September 30. On October 1, appellant’s counsel notified appellee by letter that appellant remained ready and willing to close the sale at the contract price. However, on November 30, appellee’s real estate agent refunded appellant’s escrowed earnest money payment, and appellant negotiated the check.

1. We note that although appellee’s motion was styled as a motion to dismiss, the record indicates that the trial court considered affidavits and discovery responses outside the original pleadings. Accordingly, appellee’s motion must be treated as a motion for summary judgment. OCGA § 9-11-12 (b).

2. While we believe the paramount issue in this case is specific performance of a contract for the sale of land, a category by Constitution reserved to the Supreme Court, Art. VI, Sec. VI, Par. Ill (2), Const, of Ga., 1983, nevertheless, the Supreme Court’s transfer of the appeal “is tantamount to a ruling eliminating and resolving the equitable . . . issues which lie only within the jurisdiction of that court to determine. [Cits.]” Swicegood v. Heardmont Nursing Home, 183 Ga. App. 319, 320 (359 SE2d 3) (1987).

3. Appellant maintains the trial court erred by granting appellee’s motion because the evidence established the continued existence of a valid and binding contract between the parties which was breached by appellee. We do not agree. “ ‘A suit on contract for damages on account of a breach thereof can not be maintained except by affirmance of its continuing validity. . . .’ [Cit.]” (Emphasis omitted.) Allen Housemouers v. Allen, 135 Ga. App. 837, 839 (1) (219 SE2d 489) (1975). If the claimant’s actions are inconsistent with his rights .under the contract, “he [is] debarred from any right to sue on the contract.” Id.

In the case at bar, there is no dispute that the sale was not closed by the contract deadline, and the closing date was not extended beyond September 30, 1988. Nor is there any evidence that appellant made an unconditional tender of the payment due at closing. Instead, he accepted the refund of his earnest money. “Parties may by mutual consent abandon an existing contract between them so as to make it not thereafter binding and the contract may be rescinded by conduct as well as by words. [Cits.]” (Punctuation omitted.) Holloway v. Giddens, 239 Ga. 195, 197 (236 SE2d 491) (1977), overruled on other grounds, Brown v. Frachiseur, 247 Ga. 463, 465 (277 SE2d 16) (1981). “The circumstances surrounding the sending and cashing of the refund check are adequate to show that both parties intended to walk away from this contract, which was thereby rescinded.” Id. at 196-197. Although appellant avers he remained ready and willing to perform his obligations, on summary judgment “[cjonclusory allegations . . . are insufficient — in the absence of substantiating fact or circumstances, to raise a material issue for trial. [Cit.]” (Punctuation omitted.) Cornell Indus, v. Colonial Bank, 162 Ga. App. 822, 824 (1) (293 SE2d 370) (1982). Appellant’s actions in negotiating the refund check and failing to tender the amount due or otherwise affirm his obligations under the contract belie his averment, and accordingly we find appellee was entitled to summary judgment.

Decided March 13, 1990.

M. Ross Becton, Jr., for appellant.

Horace L. Cheek, Jr., for appellee.

4. Our decision in Division 2 renders moot appellant’s enumeration concerning the trial court’s denial of his motion for summary judgment.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A90A0172.
    In re PARROTT.
    (392 SE2d 48)
   Sognier, Judge.

Lorenzo Parrott appeals from the denial of his petition to change his name. Although appellant contends his First Amendment rights were violated by the trial court’s holding, in effect challenging the constitutionality of OCGA §§ 19-12-1 and 19-12-4, the record does not reflect that this issue was raised below or that the trial court made any ruling regarding the issue. “Our appellate courts have no original jurisdiction and will decide no question on appeal not clearly presented to and passed upon by the trial court. [Cit.] Consequently no constitutional issue is involved, and this court has jurisdiction of the appeal.” Security Mgmt. Co. v. King, 132 Ga. App. 618, 619 (1) (a) (208 SE2d 576) (1974).

“The action of the superior court in granting or refusing a proper application to change the name of a person is based solely on a sound legal discretion. . . .” Binford v. Reid, 83 Ga. App. 280 (63 SE2d 345) (1951). Based on the fact that appellant’s request to proceed in forma pauperis, attached to his petition to change his name, reflected that appellant was in jail, the trial court stated in its order that it inquired into the reason for appellant’s incarceration and was informed appellant was convicted of first degree forgery. The trial court concluded that “[s]ince a legal change in [appellant’s] name at this time might result in confusion, allow him to conceal his true identity and disassociate himself from his past criminal record, the petition to change name is hereby denied.” We find no abuse of the trial court’s discretion in so holding.

Decided March 13, 1990.

Lorenzo Parrott, pro se.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A90A0531.
    HOWARD v. THE STATE.
    (392 SE2d 562)
    Decided March 13, 1990.

      Herbert Shafer, for appellant.

      Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

This is a direct appeal from an order denying defendant’s motion for pretrial bail. Ordinarily, the denial of a motion for pretrial bail is an interlocutory matter requiring a defendant to follow the interlocutory procedure set forth in OCGA § 5-6-34 (b). See Lane v. State, 247 Ga. 387 (276 SE2d 644). At one time, pursuant to OCGA § 17-6-1 (c), the legislature provided that the denial of bail in such circumstances was directly appealable. See Foster v. State, 165 Ga. App. 137 (299 SE2d 420). Accord Merritt v. State, 169 Ga. App. 523, 524 (313 SE2d 780). Effective July 1, 1988, however, the language allowing for a direct appeal in such circumstances was deleted from the applicable Code section. Ga. L. 1988, pp. 358, 362. Defendant’s motion for pretrial bail is not a final judgment as defined in OCGA § 5-6-34 (a) (1). Since the defendant has not followed the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b), the appeal must be dismissed.

Appeal dismissed.

Carley, C. J., and Sognier, J., concur.


text:
    A89A1739.
    LAKE LANIER COTTAGE OWNERS ASSOCIATION, INC. et al. v. BMS ENTERPRISES, INC. et al.
    (392 SE2d 312)
   Pope, Judge.

Appellant Lake Lanier Cottage Owners Association, Inc. (the Association) appeals that portion of a judgment entered against it pursuant to a jury verdict that awarded appellee BMS Enterprises, Inc. (BMS) $196,000 for the use of amenities owned by BMS at a development at Lake Lanier Islands. The Association sued BMS and its sole shareholder, Edwin L. Jackson, for an accounting, an injunction and a declaration of the property rights between the parties. BMS counterclaimed for breach of contract, tortious interference with contract, negligent mismanagement and an accounting.

For purposes of this appeal, we need only to sketch the background as presented by the evidence below. Essentially, BMS acquired and developed an interest in property on Lake Lanier Islands. In the development plan, BMS sold, as securities to individual investors, interests in cottages built on the property. The investor got the right to use his or her cottage for two weeks each year, but more importantly agreed to make the cottage available for rental for the rest of the year. At issue below was the effect of the declarations and covenants running with the property. In the development scheme, each cottage owner was required to join the Association which was charged with running the resort rental program. However, BMS retained ownership of the common areas and resort amenities, such as the conference center and pool, tennis courts and roads. After changing management companies for the development, the Association became aware that BMS was being paid eight percent of the gross revenués from the rental program as rent for the amenities. Although the Association paid the fees for a period of time, it concluded that it was not liable for such rent and ceased payment. In its counterclaim, BMS alleged that there was a contract between the parties for payment of the amenities. In a bifurcated proceeding, the trial court found that the Association had no property interest in the amenities and the jury found that there was no enforceable contract between the Association and BMS for the payment of eight percent of the gross revenues for use of the amenities. However, the jury further found that the Association had used the amenities owned by BMS and awarded it $196,000 in damages. The Association argues on appeal that the verdict is inconsistent and raises an issue not formed by the pleadings or the evidence: that is, the value of the amenities. Held:

We affirm. Although the Association argues that it never consented, expressly or by implication, to an amendment of the pleadings, and that the only issue before the jury was whether the Association had contracted to pay BMS for use of the amenities, the evidence in the record shows otherwise. The court charged the jury, without objection from the Association, “Where one enters into possession of property as a tenant and no amount of compensation is agreed upon, the law implies an undertaking to pay a reasonable amount as rent.” The evidence at trial was sufficient to show that the Association used and benefitted from the property owned by BMS. There was evidence that the Association first paid the amount claimed by BMS, but then ceased payment based upon its belief that it owned the amenities, not that it disputed the reasonableness of the rent charged. BMS presented evidence of the gross revenues of the development for the years in question and testimony by Jackson that the eight percent figure was fair and what was agreed upon. Further, we note that BMS filed its request to charge on the issue of the implied rental amount at the beginning of the trial and therefore the Association had notice of the issue.

Decided March 14, 1990.

Hyatt & Rhoads, James B. Rhoads, Kathy S. Kraft, for appellants.

William D. Smith, for appellees.

Although the Association attempts to distinguish Thompson v. Frost, 125 Ga. App. 753 (3) (188 SE2d 905) (1972), we find it persuasive here. In Thompson, plaintiffs alleged an oral contract with the defendant by which they agreed to purchase certain land and to erect a gas station on it to be operated by defendant. The verdict returned by the jury awarded plaintiffs a sum based not on the contract, but on the theory of quantum meruit, an. issue not raised by the pleadings. The court applied the Code section of the Civil Practice Act, codified now as OCGA § 9-11-15 (b), that allows amendments to the pleadings to conform to the evidence at trial, and found that the parties had impliedly consented to submit the issue of quantum meruit to the jury. As stated above, we cannot agree with the Association that it did not consent by implication to the trial of the issue of implied rent in this case.

Nor can we agree that the verdict and judgment are improper because BMS did not specifically ask for that relief. We need only point to BMS’s request in its pleadings that it sought “such other and further relief as [is] proper,” coupled with our analysis above, to conclude that the trial court did not err in entering judgment on the verdict.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Carley, Chief Judge.

text:
    A89A1843.
    WAFFLE HOUSE, INC. v. BOZEMAN.
    (392 SE2d 48)
   Carley, Chief Judge.

Appellee-employee suffered an on-the-job injury and began to receive workers’ compensation income and rehabilitation benefits from appellant-employer. Thereafter, it was determined that appellee was addicted to certain drugs and he participated in several addiction recovery programs. On each occasion, however, he left the program without completing it. Appellant eventually sought and obtained from the Board of Workers’ Compensation an order which “directed [appellee] to cooperate with medical treatment for detoxification and rehabilitation as prescribed by [his physician] and [appellant] shall be permitted to suspend benefits in the event of failure to cooperate.” Subsequently, appellant made the independent determination that appellee was not cooperating in his rehabilitation treatment and was, therefore, in violation of the Board’s directive. Construing the Board’s directive as self-effectuating, appellant then unilaterally suspended appellee’s benefits.

At appellee’s request, a hearing was held to determine the propriety of appellant’s unilateral suspension of his benefits. Finding that the unilateral suspension by appellant had been “unlawful,” the Administrative Law Judge (ALJ) ordered the recommencement of payment of income benefits and also awarded attorney’s fees to appellee pursuant to OCGA § 34-9-108 (b) (2). In addition, the ALJ “further directed [appellant] to provide detoxification care. ...” Upon its de novo review, the Full Board adopted the award of the ALJ. On appeal to the superior court, the Full Board’s award was affirmed. Appellant’s application to this court for a discretionary appeal from the superior court’s order was granted.

1. Appellant enumerates as error the superior court’s affirmance of that portion of the Full Board’s award directing that it provide appellee with detoxification care.

“Drug addiction or disabilities resulting therefrom shall not be deemed to be ‘injury’ or ‘personal injury’ by accident arising out of and in the course of employment except when such addiction was caused by the use of drugs or medicines prescribed for the treatment of the initial injury by an authorized physician.” (Emphasis supplied.) OCGA § 34-9-1 (4). The award in the instant case includes no finding that appellee’s drug addiction was caused by the use of drugs or medicines prescribed for the treatment of his initial compensable injury. The only finding that was made is that appellee’s drug addiction had been “aggravated by the medications which were prescribed to him by the attending physicians for treatment of his compensable injuries.” “It is not enough that the medication for the first injury ‘worsened’ an already existing addiction. . . . The legislature was very specific in its allowance of coverage for drug addiction and that coverage cannot be expanded. [Cit.]” Fulmer Bros. v. Kersey, 190 Ga. App. 573, 576 (379 SE2d 607) (1989). “[I]t is clear that the legislative intent of [OCGA § 34-9-1 (4) is] to address the compensability of claims involving addiction . . . and to authorize the recovery of claims for compensation based upon drug addiction under limited circumstances.” Dan Riuer, Inc. v. Shinall, 186 Ga. App. 572, 574 (367 SE2d 846) (1988). Since there is no finding that those “limited circumstances” exist in the instant case, it follows that the superior court erred in affirming that portion of the award which directs appellant to provide appellee with workers’ compensation benefits in the form of detoxification care.

2. Appellant enumerates as error the superior court’s affirmance of the award to appellee of attorney’s fees pursuant to OCGA § 34-9-108 (b) (2).

As noted, appellant’s unilateral suspension of appellee’s benefits was found to have been “unlawful.” However, “unlawfulness” is not the correct standard for awarding attorney’s fees pursuant to OCGA § 34-9-108 (b) (2). An award of attorney’s fees pursuant to that statute requires a finding of non-compliance with OCGA § 34-9-221 which was “without reasonable grounds.” See Union Carbide Corp. v. Coffman, 158 Ga. App. 360, 361 (2) (280 SE2d 140) (1981). A noncompliance with OCGA § 34-9-221 may ultimately prove to have been “unlawful,” but nevertheless have been based upon grounds which were otherwise “reasonable” at the time.

Appellant’s non-compliance with OCGA § 34-9-221 was based upon its unilateral suspension of appellee’s benefits, and that unilateral suspension was, in turn, based upon the Board’s previous directive regarding appellee’s cooperation. Appellee construed this directive as self-effectuating and, upon receipt of evidence of appellee’s purported non-cooperation, it concluded that a suspension of appellee’s benefits would be authorized without any further recourse to the Board. The Board’s directive to appellant is reasonably construable as self-effectuating. It does not provide that, in the event of appellee’s future failure to cooperate, appellant would then be entitled to seek the Board’s approval of a suspension of benefits. It provides that, in such an event, appellant “shall be permitted to suspend benefits. . . Accordingly, it is not entirely impossible that appellant may properly have construed the Board’s directive, and that it was the Board that misinterpreted its own authority by issuing a self-effectuating order of suspension of benefits. However, regardless of whether appellant misinterpreted the directive or the Board misinterpreted its authority, it is nevertheless clear that, as it was worded, the directive shows that appellant’s non-compliance with OCGA § 34-9-221 was not “without reasonable grounds.” “[T]here was affirmative evidence of a reasonable ground for the employer to believe that no payment was due, and thereby to commit a technical violation of the time-frame requirements of OCGA § 34-9-221. . . . We therefore hold that the superior court [erred in affirming] the Board’s award of attorney's] fees.” Carroll v. Dan River Mills, 169 Ga. App. 558, 562 (1) (313 SE2d 741) (1984).

Decided March 14, 1990.

Goldner, Sommers & Scrudder, Susan V. Sommers, for appellant.

Larsen & Flanders, H. Gibbs Flanders, Jr., for appellee.

3. Appellant’s remaining enumeration of error is moot.

4. The superior court’s affirmance of the award is reversed as to detoxification care and attorney’s fees and is affirmed in all remaining respects.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A2039.
    BOTTOMS v. THE STATE.
    (392 SE2d 59)
   Carley, Chief Judge.

Appellant pled guilty to several counts of theft by receiving and one count of financial transaction card theft. The trial court sentenced appellant to ten years’ probation conditioned upon her payment of restitution. Appellant appeals, enumerating error as to her sentence.

1. Over appellant’s objection, the trial court granted the State’s motion to continue the restitution hearing so as to secure the presence of several victims. We find no abuse of discretion in the trial court’s grant of this motion.

2. Apparently the stolen items found in appellant’s possession had been taken from the victims’ homes in a series of burglaries. In these burglaries, numerous items had been taken in addition to those which formed the basis of the charges against appellant. In sentencing appellant, the trial court ordered restitution as to all items that had been taken in the burglaries. Appellant enumerates this as error.

For purposes of restitution, “ ‘[djamages’ means all damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced. . . .” OCGA § 17-14-2 (2). The acts for which the trial court was authorized to impose sentence upon appellant were not the burglaries of the victims’ homes. Appellant was not charged with those burglaries. She was charged with theft by receiving only certain items which had been taken in those burglaries. While the burglars themselves could be ordered to make restitution as to any and all items that had been stolen from the victims’ homes, the trial court was not authorized to order appellant to make restitution as to items that she was not herself charged with having stolen. See Robinson v. State, 169 Ga. App. 763 (315 SE2d 277) (1984). The trial court was authorized to order appellant to make restitution only to the extent that the victims may have suffered “damages” as the result of her acts of theft by receiving and financial transaction card theft. “Therefore, the case is remanded with direction that appellant be resentenced in accordance with law.” Robinson v. State, supra at 763.

Decided March 14, 1990.

Boling, Rice & Bettis, Jeffrey S. Balgey, for appellant.

Garry T. Moss, District Attorney, Russell McClelland III, Assistant District Attorney, for appellee.

3. Appellant’s remaining enumeration of error is moot.

Judgment reversed and case remanded with direction.

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


text:
    A89A2259.
    PETREY v. BRINSFIELD.
    (392 SE2d 51)
   Cooper, Judge.

This action arises from appellant’s failure to pay a promissory note executed by appellant and her then husband, in favor of appellee.

Appellee gave a check for $10,000 to appellant’s husband in exchange for a promissory note signed by appellant and her husband. The note provided for interest to be paid at the rate of 12 percent per annum and was due on July 25, 1988. After making several interest payments on the loan, appellant’s husband filed for bankruptcy and the debt was discharged as to him. However, subsequent to his discharge but prior to his divorce from appellant, appellant’s husband did yard work for appellee, who credited the note accordingly. The loan being unpaid when the note became due, appellee sued appellant on the note. Both parties filed motions for summary judgment, and the trial court granted appellee’s motion and denied appellant’s.

1. Appellant first enumerates as error the trial court’s denial of her motion for summary judgment. Having withdrawn her claim of error based on lack of notice of dishonor, we address appellant’s contention that the note is unenforceable because it is incomplete. The note, signed by appellant and her husband, is an unconditional promise to pay Sara Brinsfield $10,000, with interest at 12 percent per annum, the same being due on July 25, 1988. The makers of the note, the payee, and the due date appearing on the face of the note, we find no uncertainty or vagueness in the note or the obligations created thereby. Further, the absence of any installment due dates or amounts due on installments merely created a demand note for the face amount of the note. Mock v. Canterbury Realty Co., 152 Ga. App. 872, 881 (264 SE2d 489) (1980). Thus, we find no merit to appellant’s argument that the note is incomplete.

Appellant’s contention that her motion for summary judgment should have been granted because appellee’s response to her motion was procedurally defective is likewise without merit. “There is no such thing as a ‘default summary judgment.’ ” McGivern v. First Capital Income Properties, 188 Ga. App. 716 (1) (373 SE2d 817) (1988). Furthermore, “ ‘[a] motion for summary judgment should not be granted unless it affirmatively appears from the pleadings that the party so moving is entitled to prevail.’ [Cits.]” McGivern, supra at 717. Appellant having failed to show that she was not obligated on the note she signed, we find no error in the trial court’s denial of her motion for summary judgment.

2. Appellant alleges error with the trial court’s grant of summary judgment to appellee. Having discussed appellant’s argument regarding the completeness of the note in Division 1, we turn to her argument that a factual issue exists as to the capacity in which she signed the note. Appellant submitted evidence that she signed the note at her husband’s request to insure that if he died the note would be paid out of his estate. Appellant maintains, however, that she was not promising to repay the debt in the event that her husband did not. Appellee, however, testified in her deposition that she would not loan appellant’s husband the $10,000 unless appellant also signed the note. It appears that there is no dispute as to the fact that appellant signed as an accommodation party. Therefore, “ ‘[her] liability is determined by the capacity in which [she] signed [the] note as shown on the instrument. [Cit.]’ ” Smith v. Singleton, 124 Ga. App. 394 (2) (184 SE2d 26) (1971). Appellant signed the note directly under her husband’s signature as a co-maker with no indication that she was signing in a capacity other than as a maker. Thus, there was no question of material fact for jury resolution and summary judgment was properly granted to appellee. See Brice v. Northwest Ga. Bank, 186 Ga. App. 871, 872 (368 SE2d 816) (1988).

Appellant’s contention that she was released because of a novation of the note is without merit. “A novation is a complete contract in itself and has four essential elements: (1) a previous valid obligation, (2) the agreement of all the parties to the new contract, (3) the extinguishment of the old contract, (4) the validity of the new one. [Cits.]” Franchise Enterprises v. Ridgeway, 157 Ga. App. 458 (1) (278 SE2d 33) (1981). Inasmuch as the record discloses that only the first element is present, appellant’s contention is without merit. Appellee’s subsequent credit to the note because of yard work done by appellant’s husband, who had been released from his obligation to repay the loan because of his bankruptcy discharge, did not amount to a novation of the note.

Decided March 14, 1990.

Long, Aldridge & Norman, Edward A. Kazmarek, for appellant.

Zachary & Seagraves, William E. Zachary, Sr., for appellee.

Appellant argues that the trial court erred in granting summary judgment to appellee before ruling on appellee’s motion for protective order. Appellant also finds error with the trial court’s ruling because appellee’s motion for summary judgment was procedurally defective. We disagree. Appellee having established a prima facie right to recover on the note, and appellant not having established a legally sufficient defense, the trial court did not err in granting summary judgment to appellee. “ ‘ “The essence of a motion for summary judgment is that there is no genuine issue of material fact to be resolved by the trier of facts, and that the movant is entitled to judgment on the law applicable to the established facts.” ’ [Cits.]” Anderson v. Hendrix, 175 Ga. App. 720 (2) (334 SE2d 697) (1985).

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A2279.
    FALLIN v. RULE et al.
    (392 SE2d 314)
   Pope, Judge.

This is an appeal from a grant of summary judgment to appellees Walter S. Rule and Virginia Boyt Rule giving them a writ of possession against appellant Ray Thomas Fallin and denying Fallin’s claim for a set-off for improvements he made on the property involved. In late 1976 or early 1977, Fallin moved a mobile home onto the property of his elderly aunt, Carrie Emma Fallin, at her invitation. In lieu of rent, Fallin ran errands for his aunt and maintained her property. When Fallin told his aunt that he needed a bigger place and planned to move, she asked him to stay. To induce him to stay, she offered to let him build a house on her property and promised to leave him in her will the land upon which the house stood. Fallin agreed and built the house and continued to help his aunt. Shortly before his aunt’s death, Fallin discovered a 1962 deed conveying the remainder interest in all her land, including the lot upon which Fallin lives, to Marion Fallin, reserving a life estate to herself. By his will, Marion Fallin left his interest in the land to his wife, Virginia Boyt Fallin. She remarried and conveyed a one-half undivided interest in the property to her present husband, Walter S. Rule, Jr. On appeal, Fallin argues that the trial court erred in finding that he was a tenant at sufference and that he is not entitled to a set-off for the improvements he made on the land. Held:

We affirm. “An estate at sufferance is where one comes into possession of land by lawful title but keeps it afterward without any title at all.” (Citations and punctuation omitted.) Williams v. Durham, 77 Ga. App. 840, 841 (50 SE2d 373) (1948). The situation in the present case fits the situation the court found in Williams, supra at 841: “The evidence authorized, indeed [Fallin] admits[,] that [he] entered the premises under [his aunt], a life tenant, and lived there until [she] died; that [he] entered under recognition of [her] title. [He] therefore entered with [her] permission and lawfully. The evidence does not show that [he] at any time surrendered the possession of the premises and re-entered adversely. It therefore follows and the evidence sustains the view that [Fallin] was the tenant of [his aunt], who held a life estate.” The trial court correctly ruled that Fallin was a tenant at sufferance and that a dispossessory action would lie.

The trial court also correctly held that Fallin has no claim of set-off for the improvements he made. The present case is controlled by Bowles v. White, 206 Ga. 343 (1) (57 SE2d 187) (1950). “[The] claim to recover the value of the improvements [Fallin] erected upon the property in question is not predicated upon the proposition that [he], while in bona fide possession under an adverse claim of title, improved the property in controversy; but is based upon the theory that the improvements were made by [him] in virtue of a contract with [his aunt], who agreed to make a will giving [him] fee-simple title to the . . . property if [he] would . . . render certain personal services to her.” Bowles, supra at 346. In this situation, the court held, the defendant to the action is not entitled to the benefit of the Code section (now OCGA § 44-11-9) that allows one in bona fide possession of land under an adverse claim of title to set off the value of all permanent improvements placed by him upon the land. Fallin’s reliance upon the case of Harper v. Durden, 177 Ga. 216 (170 SE 45) (1933), is thus misplaced because in that case, the defendant, Durden, purchased the property in question for full value. Harper, supra at 222.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.

Decided March 14, 1990.

Richard T. Bridges, for appellant.

Ronald Barfield, for appellees.


text:
    A89A2309, A89A2354.
    ALLSTATE INSURANCE COMPANY v. DURHAM; and vice versa.
    (392 SE2d 53)
   McMurray, Presiding Judge.

Bette H. Durham (plaintiff) brought an action against Allstate Insurance Company (“Allstate”) to recover for fire losses which were allegedly covered under her Allstate homeowner’s insurance policy. Allstate admitted that it issued a policy of insurance covering plaintiff’s house in Fort Oglethorpe, Georgia and that plaintiff’s house was severely damaged by fire on November 2, 1986, but denied liability for plaintiff’s losses, claiming that the fire was the result of arson and that plaintiff made material misrepresentations of facts and circumstances in submitting her claim. Alternatively, Allstate claimed that any amount it paid toward mortgages on plaintiff’s property “should be set-off from any amount demanded by the plaintiff in this Complaint.”

The case was tried before a jury and the evidence revealed that plaintiff’s homeowner’s insurance policy limits were $77,000 for the dwelling house and $53,900 for personal property; that plaintiff attempted to sell her house before the fire for $58,900; that plaintiff lost a substantial amount of personal property as a result of the fire and that plaintiff’s dwelling house had to be razed as a result of the fire. The evidence also revealed that there were two outstanding security instruments encumbering plaintiff’s real property and that Allstate received assignments of these instruments after paying the remaining balance of $25,632.44 on the underlying debts. The jury returned its verdict, finding as follows: “House $58,900.00 less loan $25,632.44 Total $33,267.56 Contents $17,732.44 Grand Total $51,000.00 No bad faith on Ins. Co. No Lawyer Fees No charge on Mr. Owen Mrs. Betty H. Durham will retain the lot on which the house was on.”

After the verdict was published and the jury dismissed, plaintiff’s attorney made the following objection: “Your Honor, prior to the jury going out, at the bench, we did raise the objection to the form of the verdict in that the value for the house was set at less than seventy seven thousand dollars which is the stipulated amount in the policy. Under the statute, we would submit that — that the stated amount in the policy is taken as the conclusive value of the house and would object to the form of the verdict on that basis.” The trial court overruled this objection and plaintiff subsequently filed a “MOTION TO CONFORM VERDICT AND JUDGMENT.” In support thereof, plaintiff argued that Allstate should not be allowed to set-off the amount it paid for the assignments of the security instruments and that she should be allowed to recover the face amount of the policy for the loss of her house. In response, the trial court entered a “ JUDGMENT” which provided, in pertinent part, as follows: “THE COURT HEREBY FINDS that the uncontradicted evidence presented in the trial of this case established that the plaintiff’s dwelling was totally destroyed by the fire which occurred therein on November 2, 1986. THE COURT FURTHER FINDS that this dwelling was insured under the policy of insurance issued to the plaintiff by [Allstate] in the amount of SEVENTY-SEVEN THOUSAND DOLLARS ($77,000.00).

“Pursuant to O.C.G.A. Sect. 33-32-5 (a) the jury, having decided to return a verdict for the plaintiff, was required to return a verdict in the amount of $77,000.00 as compensation for the loss of plaintiff’s dwelling. However, the verdict actually returned by the jury specified the amount of FIFTY-EIGHT THOUSAND NINE HUNDRED DOLLARS ($58,900.00) as plaintiff’s award for the loss of her dwelling. This amount being incorrect as a matter of law, it is the ORDER OF THE COURT that the verdict of the jury specifying $58,900.00 as an award to the plaintiff for the loss of her dwelling shall be and is HEREBY MODIFIED such that the plaintiff shall be awarded the amount specified in the policy of insurance, to wit: $77,000.00 for the loss of the plaintiff’s dwelling.” The trial court allowed this amount to be reduced by “$25,632.44 for mortgage payments expended on plaintiff’s behalf . . awarded plaintiff “sole and exclusive title . . .” to the remaining real property; declared that “any lien or encumbrance held on this property by or on behalf of [Allstate is] satisfied by the verdict of the jury ...” and directed that the security instruments encumbering said property be marked satisfied.

Allstate filed a direct appeal in Court of Appeals Case No. A89A2309, contending that “[t]he trial court erred in entering an Order which increased the jury’s verdict in a matter of substance after the jury had been [dispersed].” Plaintiff filed a cross-appeal in Court of Appeals Case No. A89A2354, contending that the trial court erred in failing to further modify the jury’s verdict and strike from the verdict rendered “the reference to the loan amount of $25,632.44, and the deduction of such amount from the total amount awarded” to plaintiff. Held:

“Under the provisions of OCGA § 9-12-9, the judgment and execution shall conform to the verdict. And, ‘(i)n a proper case, the superior court may mold the verdict so as to do full justice to the parties in the same manner as a decree in equity.’ OCGA § 9-12-5. However, this ‘molding’ authority is not without limits. Thus, while a verdict in certain circumstances may be ‘ “reformed or remodeled in the presence of the jury before they have retired from the box,’ ” Suber v. Fountain, 151 Ga. App. 283, 291 (259 SE2d 685), once the jury has dispersed ‘the (trial) judge has no power either to add to or to take from their findings, and has not the power, by amendment or reformation, to supply substantial omissions or make substantial changes in the verdict as rendered by the jury. . . . Nor can the trial judge accomplish the same result as amending the verdict in matter of substance by entering a decree different from the verdict of the jury, thereby eliminating certain substantial findings of the verdict, and substantially modifying or changing other findings of the jury.’ Parrish Bakeries v. Wiseman Baking Co., 104 Ga. App. 573, 575 (122 SE2d 260); accord Joe Yates Bldrs. v. Tyson, 173 Ga. App. 548, 550 (327 SE2d 234), citing Fried v. Fried, 208 Ga. 861 (3) (69 SE2d 862). Further, a verdict ‘may not be amended in matter of substance’ after it has been received and recorded and the jury has dispersed. OCGA § 9-12-7. And, this prohibition remains ‘even if it appears that the jurors intended to find liability against the proper party.’ Harrell v. Bank of the South, 174 Ga. App. 384, 386 (330 SE2d 147).” Force v. McGeachy, 186 Ga. App. 781, 783 (1), 784 (368 SE2d 777).

In the case sub judice, the trial court’s modification of the jury’s verdict after dispersal was a modification of substance. Consequently, the trial court erred in increasing the amount of damages for the loss of plaintiff’s home to $77,000. However, the trial court did not err in refusing to modify the jury’s set-off of $25,632.44 as this would have been an unauthorized “molding” of the jury’s verdict.

Judgment reversed in Case No. A89A2309. Judgment affirmed in Case No. A89A2354.

Carley, C. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

The special verdict form simply showed “house $58,900.00.” It did not show that the jury found that “plaintiff’s house was valued at $58,900.” This is significant because the core of the substantive dispute with respect to the verdict is whether there was any evidence to support a finding that the house was not “totally destroyed by fire.”

If the evidence were conclusive that the house was totally destroyed by fire, then the jury could not have awarded anything other than $77,000 pursuant to OCGA § 33-32-5, as a matter of law. It would not have been authorized to award only the value of the house, or more accurately, the actual value of the loss. Because of the evidence of market value, the trial court apparently concluded that the jury had erroneously ascribed value rather than the policy’s face amount in its verdict.

Decided March 14, 1990.

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, William E. Zschunke, for appellant.

Gleason & Davis, John W. Davis, Jr., David J. Dunn, Jr., for appellee.

If, on the other hand, the evidence were in conflict with regard to whether destruction by fire was total or only partial, then the jury’s award of $58,000 for the loss to the dwelling was supported and plaintiff was not entitled as a matter of law to the face amount of the policy. (The jury apparently did not consider the razing to constitute destruction by fire.)

Procedurally, the question was not properly raised or ruled on in the trial court. As correctly ruled by the majority, OCGA § 9-12-7 limits the applicability of OCGA § 9-12-5, and the latter does not fit the circumstances. Even if the evidence had demanded a finding of “total destruction,” the remedy with respect to a verdict which found otherwise would not be a nonconforming judgment.

The court could have directed a verdict or given judgment notwithstanding the verdict in this regard, had plaintiff made such motions. The court could have returned the jury to its deliberations with proper instructions as plaintiff apparently sought but the court rejected, which rejection is not enumerated as error. The court could have granted a new trial, sua sponte or on motion by plaintiff. The method chosen by plaintiff to complain of the verdict was inappropriate, and plaintiff must be satisfied with recovery of the value she placed on the encumbered dwelling including the land, reduced by the amount of the encumbrances but excluding the value of the land.