text:
    A91A0273.
    ALLEN v. THE STATE.
    (408 SE2d 127)
   McMurray, Presiding Judge.

Defendant was charged in a four-count indictment with violating Georgia’s Controlled Substances Act, i.e., unlawfully possessing methamphetamine with intent to distribute (Count 1), unlawfully possessing cocaine (Count 2), unlawfully possessing lysergic acid diethylamide (Count 3) and unlawfully possessing alprazolam (Count 4). The case was tried before a jury and the evidence revealed the following:

On November 15, 1988, Detective Sergeant Steve Newton of the Duluth Police Department received information from a confidential informant that the controlled substance methamphetamine (“crank” or “speed”) was being sold from the residence of Gary and Roxanne Cane. Newton verified this information by conducting a controlled purchase of drugs from the Cane residence. He later obtained a search warrant for the Cane house and “any outbuildings within the curtilage of [the Cane] property.”

About 8:00 p.m. on November 15, 1988, a team of law enforcement officers arrived at the Cane property and moved into position to execute the search warrant. Defendant was then observed walking from a smaller house at the rear of the Cane property which was not subject to the search. The officers watched defendant enter the Cane house and the search team then “forcibly opened [the Cane’s front door] and . . . yelled, ‘police, search warrant[.’ Defendant] came charging out the sliding glass doors in a dead run . . .,” but he was immediately apprehended and taken to a room in the Cane residence “and placed . . . with . . . others that had been detained. . . .”

In the meantime, Newton confirmed that the small house was “subleased” and discovered that defendant resided in the house. Duluth Police Sergeant John Steffel also discovered that defendant had been staying in the small house and he “asked the defendant, would you mind if we check the house to make sure there is nobody there that is going to come out and do us harm, we need to check the house for people. And [defendant] said, ‘sure, go ahead.’ ”

Steffel and Duluth Police Officer Don Newell, Jr., approached the small house, knocked on the door and identified themselves. The officers then entered the house, but Steffel stopped his advance because he “heard footsteps running across toward the other end of the house. ...” Newell continued to “sweep through the house ...” and he noticed “this real ugly smell . . .” and laboratory equipment and what appeared to be illegal drugs. (Two suspects fled from the house during the search, but they were apprehended by officers stationed outside the small house and opposite the door of Newell’s entry.)

The officers later returned to the small house with a search warrant and discovered laboratory equipment, cash used by Newton’s informant to purchase methamphetamine from the Cane residence and controlled substances described in Counts 1 through 4 of the indictment. The jury found defendant guilty on all counts of the indictment. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in denying his motion to suppress and in overruling his objections to evidence seized during the search of his residence, arguing that the initial warrantless search “exceeded the scope of [his] permission to check the house for other persons” and that his “limited consent” was not freely and voluntarily given because of the misleading and coercive circumstances of his detention.

“Where the state seeks to justify a warrantless search on grounds of consent, it ‘has the burden of proving that the consent was, in fact, freely and voluntarily given.’ Bumper v. North Carolina, 391 U. S. 543, 548 (88 SC 1788, 20 LE2d 797) (1968). A valid consent eliminates the need for either probable cause or a search warrant. Hall v. State, 239 Ga. 832 (238 SE2d 912) (1977). The voluntariness of a consent to search is determined by looking to the ‘totality of the circumstances,’ Schneckloth v. Bustamonte, 412 U. S. 218, 229 (93 SC 2041, 36 LE2d 854) (1973), including such factors as the age of the accused, his education, his intelligence, the length of detention, whether the accused was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of all these factors on the accused. In determining voluntariness, no single factor is controlling. Id. at 226.” Dean v. State, 250 Ga. 77, 79 (2a) (295 SE2d 306).

In the case sub judice, Steffel testified at a motion to suppress hearing that he approached defendant “less than five minutes” after defendant had been detained; that defendant was then “handcuffed” and “on the floor in the den [of the Cane house]” and that he informed defendant that the officers were “executing a search warrant. . . .” Steffel also testified that defendant was advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694); that defendant indicated an understanding of his constitutional rights; that defendant did not appear to be intimidated; that defendant was not threatened or coerced and that defendant “reflected the image . . . that he didn’t care, that he was in a bind and [that] it didn’t really matter what he said or not. . . .”

“Whether there is a valid consent to search is a matter exclusively within the province of the factfinder, the trial court. ‘Unless clearly erroneous, the trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted on appeal.’ Dean v. State, 250 Ga. App. 77, 80[, supra].” Bryan v. State, 197 Ga. App. 207 (398 SE2d 230). The evidence in the case sub judice authorized the trial court’s finding that defendant’s consent was free and voluntary and that the law enforcement officers did not exceed the scope of defendant’s consent. The trial court did not abuse its discretion in denying defendant’s motion to suppress and in allowing evidence of the illegal drugs seized during the search of defendant’s home.

2. Defendant challenges the denial of his motion for directed verdict of acquittal and contends the evidence was insufficient to support his convictions under Counts 1, 2 and 3 of the indictment, arguing that others had “equal access” to the areas where the illegal drugs were found.

“ ‘ [I]f there is additional evidence of possession of contraband by the accused — either circumstantial or direct, other than mere ownership, use or possession of the (premises where it is found), then an issue is made for the jury. . . .’ Fears v. State, 169 Ga. App. 172, 174 (312 SE2d 174) (1983).” Black v. State, 181 Ga. App. 540 (353 SE2d 4). In the case sub judice, the evidence not only shows that defendant was in possession and control of the premises where the illegal drugs were found, it shows that defendant fled from the law enforcement search team when they entered the Cane residence and that currency used by a law enforcement officer to purchase methamphetamine was discovered in the small house. This evidence and evidence that illegal drug activities were plainly detectible upon a “sweep through” of the small house was sufficient to authorize the jury’s finding that defendant was guilty, beyond a reasonable doubt, of the crimes charged in Counts 1, 2, and 3 of the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

Decided June 20, 1991

Reconsideration denied July 5, 1991

Drug violation. Gwinnett Superior Court. Before Judge Huff.

Ralph J. Hunstein, for appellant.

Thomas C. Lawler III, District Attorney, David K. Keeton, Debra K. Turner, Assistant District Attorneys, for appellee.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A91A0140.
    PERRY v. CITY OF HAMPTON.
    (409 SE2d 92)
    Decided July 5, 1991

      Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, Anne C. Allen, for appellant.

      Smith & Welch, Benjamin W. Studdard III, for appellee.
   Cooper, Judge.

We granted appellant’s discretionary appeal from a superior court order affirming his conviction in the City of Hampton Municipal Court for driving under the influence of alcohol. OCGA § 40-6-391. On appeal appellant challenges the sufficiency of the evidence and the trial court’s failure to obtain from him a written waiver of his right to a jury trial.

1. Appellant’s first enumeration of error is that the evidence was insufficient to support his conviction. It appears that the case in municipal court was transcribed; however, appellant failed to request in his notice of appeal to superior court that the transcript be included in the record. The record sent from superior court to this court contains a letter stating that there is no transcript. “In the absence of a transcript, or a record prepared from recollection or a stipulation of the case pursuant to OCGA § 5-6-41 (g, i), we cannot consider enumerations of error based on the evidence. [Cit.]” Sizemore v. State, 195 Ga. App. 548 (395 SE2d 669) (1990).

2. In his second enumeration of error, appellant contends that the municipal court lacked jurisdiction to try appellant because no written waiver of jury trial appears in the record. Appellant’s contention is controlled adversely to him by Nicholson v. State, 261 Ga. 197 (403 SE2d 42) (1991) and Kolker v. State, 200 Ga. App. 72 (406 SE2d 514) (1991). Accordingly, the judgment of the superior court is affirmed.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0191.
    UNITED STATES FIDELITY & GUARANTY COMPANY v. JOY TRUCK LINES, INC.
    (408 SE2d 142)
   Cooper, Judge.

Appellant appeals the trial court’s entry of a judgment on appellee’s motion for directed verdict as to appellant’s cross-claim for subrogation pursuant to OCGA § 33-34-3 (d) (1).

Kenneth Miller was injured in a collision with a truck owned by appellee and was paid $50,000 in no-fault PIP benefits by appellant, his insurer. Miller brought a negligence action against appellee wherein appellant was added as a co-defendant as Miller’s uninsured motorist carrier because of the alleged involvement of an unidentified third vehicle in the accident. Appellant asserted a cross-claim against appellee for subrogation of the no-fault benefits paid to Miller. During the trial, the court denied appellee’s motion for directed verdict on the subrogation claim, and ultimately, the jury returned a $200,000 verdict for Miller and against appellee; however, no verdict was rendered on the subrogation claim. Appellee then moved the court for the entry of a judgment in accordance with its motion for directed verdict pursuant to OCGA § 9-11-50 (b), which the trial court granted. Relying on OCGA § 33-34-3 (d) (1) and State Farm Mut. Auto. Ins. Co. v. Five Transp. Co., 246 Ga. 447 (271 SE2d 844) (1980), the court held that appellant’s right of recovery was limited to appellee’s liability carrier and that appellant’s claim for subrogation was improper because appellee’s liability carrier was not joined as a party.

OCGA § 33-34-3 (d) (1) provides in part: “Insurers and self-insurers providing benefits without regard to fault. . . shall not be subrogated to the rights of the person for whom benefits are provided except . . . [i]n those motor vehicle accidents involving two or more vehicles, at least one of which is a motor vehicle weighing more than 6,500 pounds unloaded. . . . The right of recovery and the amount of recovery shall be determined on the basis of tort law between the insurers or self-insurers involved.” Appellant contends that the clear meaning of the statute is that tort law controls subrogation proceedings, procedurally and substantively, and the statute does not require the joinder of carriers whose presence in the case might cause prejudice. Appellant argues that Jordan v. TG&Y Stores Co., 256 Ga. 16 (342 SE2d 665) (1986) authorizes subrogated insurers to maintain independent actions against tortfeasors to recover benefits paid to their insured to the same extent tortfeasors are liable to the insured, and therefore, the tortfeasor’s insurer is not a necessary party to the subrogation litigation. Appellant also relies on Travelers Ins. Co. v. Commercial Union Ins. Co., 176 Ga. App. 305, 307 (335 SE2d 681) (1985), a case in which the tortfeasor’s insurer was a party and the court denied reimbursement of no-fault benefits to the paying insurer, standing in the shoes of its insured, because the jury determined that the insured suffered no injury. The paying insurer argued that OCGA § 33-34-3 (d) (1) provided the only avenue for recoupment between insurers and that the statute “mandated” that the paying insurer bring his subrogation claim against the tortfeasor’s insurer, to which this court responded, “Try as we might, we cannot find language that ‘mandates’ that a claim must be brought (i.e., whether desired or not) by the paying insurer against the tort-feasor’s insurer. We readily accede that the statute authorizes that avenue of recovery and if subrogation is sought, it is mandated that the claim be processed in accordance with the statute.” Travelers, supra at 307-308. Later in the opinion, however, the court also states, “The statute [OCGA § 33-34-3 (d) (1)] involved mandates that the right of recovery on a subrogation claim is to be determined on the basis of tort law between the insurers involved.” Id. Moreover, in Jordan, supra, the question before the court was by what sum a jury verdict was to have been reduced, either by the amount previously paid by a subrogated insurer or by the amount set forth in a special verdict, as between the insured and a tortfeasor, and although the court stated that an insurer was entitled to recover from a tortfeasor to the extent of no-fault benefits paid, there was no subrogation claim alleged or pending in that case.

In the case relied upon by the trial court, State Farm, supra, the Georgia Supreme Court held unequivocally that § 56-3405b (d) (1), the predecessor of OCGA § 33-34-3 (d) (1), limited the paying insurer’s right of recovery to the insurance carrier of the tortfeasor. State Farm, supra at 454. In State Farm, the tortfeasor’s insurer was a party defendant, and the court held that the paying insurer should have been permitted to intervene the wrongful death action to protect its subrogation interest. By expressly limiting the insurer’s right of recovery to the tortfeasor’s insurer, there was no right of recovery against the tortfeasor.

Although the statute has been amended since State Farm was decided, with regard to the facts in the instant case, it is not materially different from its predecessor. Most importantly, both versions provide that the right of recovery and the amount of recovery shall be determined between the insurers. “ ‘It is a fundamental rule of statutory construction that where the language of a statute is plain and unambiguous, the terms used therein should be given their common and ordinary meaning. [Cit.]’ ” Sledge v. Employees’ Retirement &c. of Ga., 196 Ga. App. 597, 598 (396 SE2d 550) (1990). In our view, the trial court was correct in concluding that the right of recovery of subrogated no-fault benefits exists only between insurers and that appellant’s cross-claim was improper because appellant failed to join appellee’s liability insurer. There was no error in the entry of judgment in favor of appellee on the appellant’s subrogation cross-claim.

Decided July 5, 1991.

Kinney, Kemp, Pickett, Sponcler, & Joiner, Matthew D. Thames, for appellant.

Dennis, Corry, Porter & Thornton, Michael T. Thornton, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0371.
    LUNDY et al. v. LOW.
    (408 SE2d 144)
   Cooper, Judge.

This appeal arises from a suit on account brought by appellee and appellant’s counterclaim for breach of contract. Appellants, Nell Lundy d/b/a Lundy Produce (“Nell”) and Mary Lundy Vela d/b/a Lundy Produce (“Mary”), appeal the trial court’s grant of summary judgment to appellee, J. T. Low d/b/a Highland Farm of Oregon, and the denial of their motion for summary judgment.

On August 3, 1988, Lundy Produce entered into a contract with appellee for the purchase of Christmas trees to arrive no later than November 16, 1988. On the first line of the contract, “Lundy Produce” is listed as buyer, and in the body of the contract “Nell Lundy” is designated as buyer. However, on the last line of the agreement, both Nell and Mary signed as buyers. In October 1988, in a letter to appellee’s sales representative, Nell proposed a different shipping schedule which divided the shipment into three parts. The first load was to be shipped between November 12 and November 16 to arrive in Atlanta on November 20, and the second load was to be shipped on or about November 23 with no delivery date specified. Shipment and arrival dates for the final load were not designated. The letter was signed “Nell Lundy trees” and was accompanied by a $1,000 check signed by Nell, on which the notation, “Deposit on 2000 trees,” was written. Consistent with Nell’s letter, shipments were made on November 13, 15, 26, 27 and December 8 and were accepted by appellants. On December 27, Nell and Mary wrote appellees’ sales representative stating that they had “no complaint on the trees whatsoever” and that they wanted to purchase more trees at the same price the following year. Nell and Mary also enclosed a check for $9,744, which was drawn on an account titled “Mary Lundy Produce Company” and was signed by “Mary Lundy” to satisfy the remaining balance. On January 23, 1990, Nell notified appellee that she stopped payment on the check and that she would send a smaller check instead and forward the balance later. Thereafter, appellants made only partial payments toward the balance, and this suit was filed to recover the unpaid balance and interest. In her “Response” to the complaint, Nell denied doing business as Lundy Produce and stated that she was present when Mary ordered trees from appellee, that it was agreed that the trees would be delivered on or before December 5, 1988, and that Mary would not be obligated to pay for any trees arriving after December 5 because they would arrive too late in the season to be sold wholesale. Mary denied doing business with Nell as Lundy Produce, stated that Lundy Produce had been given to her by her father upon his retirement, claimed there was an agreement on the December 5 delivery date and maintained that the parties did not contemplate interest or finance charges as prayed for by appellee. Mary asserted a counterclaim alleging breach of contract based upon appellee’s failure to deliver all of the trees by December 5,1988. Mary contended that she was billed $27,892 for the trees; that she has paid $28,892; and that she is entitled to be reimbursed for the trees delivered after December 5 in the amount of $8,041.

1. In their first seven enumerations of error, appellants contend that the trial court erred in granting summary judgment in favor of appellee and against appellant because appellee failed to establish as a matter of law that appellants would not prevail under any theory fairly drawn from the pleadings and evidence and that genuine issues of material fact remain, including the following: whether there was a breach of contract for failure to deliver trees by November 16, 1988, the value of the trees delivered after December 5, whether Nell and Mary entered into a contract jointly to purchase the trees and whether the appellants were indebted to appellee. We disagree. Appellants’ contentions totally belie the evidence. It is undisputed that Nell proposed an alternative shipping schedule which appellee accepted (OCGA § 11-2-601 (b)) and executed with no objection from appellants until the counterclaim was filed. It is also clear that the new schedule was in conflict with the November 16 and December 5 delivery dates, given the timetable set forth in the new schedule, despite the fact that Nell failed to specify shipping or delivery dates for the third load of trees. OCGA § 11-2-309 (1) and (2) provides in part that “[t]he time for shipment or delivery . . . under a contract if not . . . agreed upon shall be a reasonable time,” and “[w]here the contract provides for successive performances but is indefinite in duration it is valid for a reasonable time. . . .” Furthermore, not only was there no objection by appellants to any of the deliveries, as contemplated in OCGA § 11-2-606, but Nell and Mary expressed their gratitude for the trees on December 27 and planned to re-order from appellee the following year. Appellants’ argument that time was of the essence of the contract relative to the November 16 and December 5 dates is entirely without merit inasmuch as appellants altered the delivery time themselves. See Cobb Lumber Co. v. Sunny S. Grain Co., 36 Ga. App. 140 (135 SE 759) (1926).

Appellants’ argument that there are genuine issues of fact as to whether or not Nell and Mary entered into the contract jointly is equally without merit. The evidence again is undisputed that both women were present on August 3, 1988, when the contract was made; that the names of both women are on the signature line; that Nell exercised authority in altering the date of delivery; and that the trees were paid for with checks signed by both Nell and Mary. In addition, in their brief to this court, appellants advance the incredible argument that there is no evidence to connect Mary with the transaction. This contention stands in direct conflict with the undisputed evidence, outlined above, and Mary’s own response to the complaint in which she admitted operating Lundy Produce and entering into a contract with appellee’s agent to purchase Christmas trees.

On the question of whether a genuine issue exists as to their counterclaim for reimbursement, appellants offered no evidence to demonstrate that a balance was owed them. “It is the duty of the party asserting error to show it by the record, and assertions of evidence in briefs cannot satisfy this duty. [Cit.]” Denny v. Nutt, 189 Ga. App. 387, 389 (2) (375 SE2d 878) (1988). Appellants claim to have paid $28,892, of which $6,129 is an overpayment. However, to the contrary, the evidence introduced by appellee which included shipping records, invoices, cancelled checks and an inventory sheet, as well as, Nell and Mary’s letter in which they acknowledge that $9,744 was due and owing on December 27, aptly demonstrated appellants’ indebtedness to appellee.

“ ‘(S)ummary judgment law does not require the [movant] to show that no issue of fact remains, but rather tha(t) no genuine issue of material fact remains; and while there may be some shadowy semblance of an issue, the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.’ [Cit.]” Pate v. Ga. Southern &c. R. Co., 196 Ga. App. 211, 215 (3) (395 SE2d 604) (1990). Based on the foregoing and our review of the entire record, we find no error in the trial court’s grant of summary judgment to appellee against both appellants and the denial of appellants’ motion for summary judgment.

2. Appellants enumerate as error the trial court’s award of interest at the rate of 18 percent per annum from December 15, 1988. We will not consider appellants’ claim that the interest award was usury as it is being raised for the first time on appeal. Noro-North &c. v. Rare Coins &c., 196 Ga. App. 443 (1) (395 SE2d 918) (1990). The contract provided for an award of two percent per month from the contract due date, and we find no error in the trial court’s reduction of that rate to one-and-one-half percent per month in accordance with OCGA § 7-4-16.

Decided July 5, 1991.

John L. Watson, Jr., for appellants.

J. Michael Kaplan, Crews, Salter & Gisler, Charles M. Gisler, for appellee.

3. Finally, we need not address appellants’ three remaining enumerations of error as they were sufficiently addressed in Division 1.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Pope, Judge.

text:
    A91A0157.
    LESTER et al. v. BIRD et al.
    (408 SE2d 147)
   Pope, Judge.

Plaintiffs/appellants Jess C. Lester and Debra E. Lester appeal the trial court’s directed verdict for defendants/appellees on their claims against defendants stemming from insect damage to the subject property.

In 1984, defendant Dorothy L. Bird n/k/a Dorothy L. Bird Moon in contemplation of selling her home in Buckhead, Georgia, ordered a termite inspection of the property. That inspection revealed prior termite infestation and the need for termite treatment, which was performed. In 1986, Bird listed her property for sale with defendant Madison Realty, through its agent, Elizabeth Prior. At the time of the listing, Bird gave to Prior a document she had received from the company that performed the termite treatment in 1984. The undisputed evidence showed that both Prior and Bird thought that document was a “termite bond.” .

After Madison Realty was unsuccessful in selling the property over a period of several months, Bird removed it from the market. Bird then relisted the property with Madison Realty through Prior in 1988. Later that year, Bird also employed defendant Crown Auctions, Inc., to market and auction the property in conjunction with Madison Realty.

A friend of plaintiffs told them about the auction of the property. Plaintiffs first looked at the property the Sunday before the property was auctioned the following Saturday. Before plaintiffs obtained the property at auction, they visited it three times. Plaintiffs did not employ a professional inspector to inspect the property either before plaintiffs purchased it at auction or during the more than 40-day period after plaintiffs had signed the sales contract but before the closing occurred. During plaintiffs’ visits to the property before the auction, plaintiffs performed walk-through inspections of the property, but did not attempt to examine the crawl space area underneath the house, because plaintiffs testified at trial that it was either boarded or bricked closed. Plaintiffs further testified that they did not examine the crawl space area of the house because Prior and/or Dan Jackson, agent of Crown Auctions, assured them that there was no termite damage and no reason to examine that area.

Plaintiffs testified that at the auction they received a brochure on the property. In that brochure in a section titled “Real Estate Bidder Information,” the brochure contained the following caveats: “All information contained in the brochure was derived from sources deemed to be correct, but is not guaranteed. . . . ALL PROPERTIES SELL AS IS. . . . CROWN AUCTION AND ITS AGENTS ARE REPRESENTING THE SELLERS IN ALL TRANSACTIONS.” Plaintiffs were the successful bidders at auction. The sales contract signed that day warranted only that the seller would transfer good and marketable title to the purchaser. The sales contract did not contain any provision or contingency relating to termite inspection and treatment that would allow plaintiffs to cancel the sales contract.

At the closing of the property, Bird made available to the plaintiffs an official Georgia wood infestation inspection report prepared by Cleary Pest Control, Inc., the same company that had inspected and treated the property in 1984. The report given to the plaintiffs at closing stated that there was no active infestation of subterranean termites, powder post beetles, wood boring beetles, dry wood termites or wood decaying fungus, but said that their inspection revealed previous infestations of subterranean termites and powder post beetles. The report also stated that the property had been treated for subterranean termites and powder post beetles on January 4, 1989, six days before the closing. Plaintiffs became concerned about the purchase and unsuccessfully attempted to contact their attorney before proceeding with the closing. When plaintiffs were informed by Prior and Jackson that the contract did not contain a provision that would allow them to refuse to close based upon the termite inspection report that they received, plaintiffs decided to close on the property.

Shortly after purchasing the property, plaintiffs hired a contractor to remodel the kitchen. When the contractor began his work, he discovered substantial termite damage in the property. In the course of the work, it was also discovered that portions of the house were propped up with wood, stacks of stones and bricks, and railroad ties. Plaintiffs also discovered that the property was not serviced by a septic tank or by the well located on the property as had been represented to them by Prior and/or Jackson.

Plaintiffs filed suit against defendants Bird, Madison Realty and Crown Auctions on May 8, 1989. In the complaint, plaintiffs asserted claims against the defendants for fraud, conspiracy to defraud, and negligent misrepresentation. On July 27, 1990, plaintiffs amended their complaints to add a claim for mutual mistake. A jury trial was conducted in this case on July 30 and 31, 1990.

After the plaintiffs presented their evidence, the trial court encouraged the parties to settle their claims and a satisfactory settlement was reached on the claims stemming from the well. Although it appeared at trial that a settlement had been reached concerning the septic tank as well, because the trial court’s ruling on that claim did not conform to the evidence, as it purported to do, that claim is still unsettled. The trial court directed a verdict for the defendants on all claims arising from insect damage on the property. Plaintiffs appeal the directed verdict on their claims stemming from insect damage to the property and seek to have this court either reform the settlement concerning the septic tank to the evidence or remand it to the trial court for resolution.

1. The court will first address whether the trial court properly granted a verdict for defendants on all plaintiffs’ claims against them stemming from insect damage to the property. A directed verdict is proper when “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict . . . .” OCGA § 9-11-50 (a). “On appeal from an order directing a verdict, the question before this court is whether the evidence was without conflict as it pertains to the material issues in the case and, thus, when viewed in a light most favorable to the losing party, demanded the verdict ordered.” Aldridge v. Dixie &c. Co., 223 Ga. 130, 131 (153 SE2d 723) (1967).

As to their claim based on mutual mistake, plaintiffs allege that when defendant Bird and plaintiffs entered into the contract they all thought that the property was free from termite damage, therefore, the sales contract was the product of mutual mistake of fact. The undisputed evidence showed that as early as 1984, Bird knew that her home had to be treated for certain wood destroying insects. The evidence also showed that because she had treated her home in 1984 for subterranean termites and powder post beetles, she did not think the prior infestations were a problem or would hinder the sale of her home. Furthermore, the undisputed evidence shows that plaintiffs knew some of the wood in the porch area was damaged and that they were put on notice on the day of the closing, but before the sale was closed, that there had been previous infestations of subterranean termites and powder post beetles. Construing the evidence in the light most favorable to plaintiffs, it reveals only a unilateral mistake by plaintiffs in that plaintiffs did not know there was any damage to the property from wood destroying insects at the time they signed the contract for sale. “ ‘Relief is not available on the basis of a unilateral mistake in the absence of fraud or inequitable conduct or other special circumstances. (Cit.)’ [Cit.]” Sepulvado v. Daniels Lincoln-Mercury, 170 Ga. App. 109, 111 (3) (316 SE2d 554) (1984). The trial court correctly directed a verdict on plaintiffs’ claim based on mutual mistake.

The question remains whether the trial court properly directed a verdict on plaintiffs’ fraud and negligent misrepresentation claims against defendants. The elements of a fraud claim are: (1) false representations made by the defendant; (2) that the defendant knew the representations were false; (3) an intention by the defendant to induce the aggrieved party to act or refrain from acting in reliance on the representations; (4) justifiable reliance by the aggrieved party on the representations; and (5) damage to the aggrieved party. Shaw v. Cook County &c. Assn., 139 Ga. App. 419, 420 (228 SE2d 326) (1976). A fraud claim can also be supported under Georgia law, even when the party does not know his statement is false if the false statement was recklessly made by the defendant. See Clements v. Warner Robins Supply Co., 235 Ga. 612, 614 (221 SE2d 35) (1975). The conduct that gives rise to plaintiffs’ fraud and negligent misrepresentation claims is that they were assured by Prior and Jackson that there was no termite damage to the property and that there was no reason for them to check the crawl space underneath the property.

The law in Georgia is well-settled that “ ‘[i]n the purchase and sale of real estate there is an underlying principle of law to the effect that one cannot be permitted to claim that he has been deceived by false representations about which he could have learned the truth of the matter and could have avoided damage. The above is the general rule. There are only two exceptions to this general rule. One is where the purchaser was prevented by the fraud of the seller or vendor from making an examination of the premises. The other is where an inspection of the premises would not have disclosed the falsity of the misrepresentation.’ Westbrook v. Beusse, 79 Ga. App. 654, 658.” Grant v. Aulicky, 161 Ga. App. 817, 819 (290 SE2d 107) (1982). Accord Ross v. Smith, 173 Ga. App. 384 (326 SE2d 527), rev’d on other grounds, 255 Ga. 193 (336 SE2d 39) (1985). Except in plain and indisputable cases, questions of fraud and whether a plaintiff could have protected himself through the exercise of ordinary diligence are questions for a jury. Thomson v. Walter, 160 Ga. App. 542, 543 (1) (287 SE2d 562) (1981).

Decided July 8, 1991.

Martin D. Chitwood & Associates, Martin D. Chitwood, Craig G. Harley, for appellants.

The trial court correctly directed a verdict on plaintiffs’ fraud claim. Plaintiffs’ claims that the fraud and negligent misrepresentations of defendants prevented them from making an examination of the premises must fail as a matter of law under the facts of this case. Although plaintiffs inquired about the crawl space area, there is no evidence that the plaintiffs attempted to enter the crawl space area or that they undertook any independent investigation to ascertain why certain wood was damaged in the porch area or if Prior’s and Jackson’s representations were correct. There was no fiduciary or other special relationship between plaintiffs and Prior and Jackson that would justify plaintiffs blind reliance on the statements made by Prior and Jackson. In fact, plaintiffs were experienced in real estate transactions and knew both Prior and Jackson represented the seller. In this case, “ ‘it can not be said that the purchase originated in fraud so much as in the carelessness of the purchaser to exercise ordinary care for his own interest.’ Browning v. Richardson, 181 Ga. 413, 415 (182 SE 516) [(1935)].” Third World, Ltd. v. Brewmasters of Augusta, 155 Ga. App. 352, 355 (270 SE2d 891) (1980). Plaintiff’s lack of diligence bars their recovery as a matter of law. For these reasons, the trial court’s directed verdict on plaintiffs’ insect damage claims was appropriate.

2. With regard to plaintiffs’ claim against defendants concerning the lack of a septic tank on the property, clearly the parties did not agree to settle those claims for $1,500, as set forth in the trial court’s order on motion for directed verdict. This court’s review of the record reveals that the trial court thought that the amount stated in its order on motion for directed verdict was sufficient to install the number and type of septic tanks recommended by the Morgan County Health Department. The only evidence concerning the recommendations of the Morgan County Health Department for the property is that the department recommended two one-thousand gallon tanks. The evidence further showed that the lowest estimate for the installation of two one-thousand gallon septic tanks is $3,000 ($1,500 each). Defendants do not dispute that they agree to settle this claim. We, therefore, remand this case to the trial court with direction that it correct its findings in its order regarding the septic tank claim to conform that ruling to the evidence. See Palm Restaurant &c. v. Prakas, 186 Ga. App. 223, 227 (8) (366 SE2d 826) (1988).

Judgment affirmed and case remanded.

Birdsong, P. J., and Cooper, J., concur.

Scott & Quarterman, Russell T. Quarterman, Bradley S. Wolff, Martin L. Fierman, for appellees.

       Plaintiffs testified that they were not provided with part of the termite inspection report at the closing. Plaintiffs do not dispute, however, that they received information at the closing that put them on notice that there had been prior infestation of wood damaging insects.


text:
    A91A0330.
    JOHNSON v. FIRST CAROLINA FINANCIAL CORPORATION.
    (408 SE2d 151)
   Cooper, Judge.

On October 14, 1977, appellant purchased a mobile home from Cumberland Homes, Inc. (“Cumberland Homes”) and executed a retail installment sales contract which provided for payment of the purchase price in monthly installments of principal and interest over a 12-year period. Cumberland Homes subsequently assigned the installment contract to appellee, First Carolina Financial Corporation. In April of 1985, appellee initiated personal property foreclosure proceedings in the Superior Court of Douglas County due to appellant’s alleged default in payment pursuant to the terms of the installment contract. The personal property foreclosure pleadings were served by a Douglas County deputy sheriff whose affidavit of record states that he tacked a copy of the pleadings on the mobile home and mailed a copy to the address provided by appellee. Appellant, who had been residing in California since 1980, did not answer or defend the action nor did she appear at the personal property foreclosure hearing on May 15, 1985. Appellee secured a writ of possession on May 24, 1985, and Cumberland Homes took possession of the mobile home in accordance with the recourse agreement between appellee and Cumberland Homes. On February 8, 1989, almost four years after the writ of possession was issued, appellant filed suit against appellee and Cumberland Homes in Fulton County Superior Court alleging in Count I that appellee and Cumberland Homes acted in bad faith in filing the personal property foreclosure action causing appellant unnecessary trouble and expense; in Count II that appellee and Cumberland Homes wrongfully reported to numerous credit bureaus that appellant’s mobile home was repossessed causing appellant to be denied credit with other businesses; and in Count III that appellee and Cumberland Homes converted to their own use certain personal property found in the mobile home. Appellant now appeals the trial court’s grant of summary judgment to appellee on all three counts of appellant’s complaint.

1. Appellant first contends that the trial court erred in granting summary judgment to appellee on Count II of her complaint alleging that appellee falsely reported information about the mobile home foreclosure to various credit bureaus resulting in appellant being denied credit with other business establishments. Our review of the record indicates that appellant failed to present any evidence indicating that appellee had, in fact, reported the foreclosure to any credit bureau. Moreover, appellant testified in her deposition that because she had been unemployed since 1969, she did not have any credit cards or bank accounts. She further testified that she had not applied for credit since the date of the foreclosure of the mobile home, and therefore, could not have been denied credit by any business establishment as alleged in her complaint. We can only agree with the trial court’s conclusion that based upon appellant’s own testimony, it would be impossible for her to prove that any actions of appellant ruined her credit. Accordingly, the trial court did not err in granting summary judgment to appellee on Count II of the complaint. See Stricklin & Co. v. Crow Land Dev., 197 Ga. App. 373 (398 SE2d 865) (1990).

2. Appellant next contends that the trial court erred in granting summary judgment to appellee on Count I of the complaint and by ruling that the claim was barred on grounds of res judicata based on appellant’s failure to plead a compulsory counterclaim in the Douglas County action. Appellant asserts that because she was improperly served with process in the personal property foreclosure action, the doctrine of res judicata cannot be a bar to the present action.

In support of its motion for summary judgment, appellee offered into evidence the affidavit of the Douglas County deputy sheriff to prove that the “tack and mail” service requirements of OCGA § 44-14-232 had been properly met. Although appellant argues that appellee had the deputy sheriff mail the foreclosure pleadings to appellant’s old address even though appellee had knowledge that appellant then resided in California, appellant presented no evidence in support of her contention that appellee knew her new address. Therefore, the trial court was correct in concluding that appellant’s claim of improper service in the Douglas County action was without merit.

“ ‘[A] party may not raise issues arising out of the same transaction which should have been pled as a compulsory counterclaim in another separate suit. If the first suit is completed, then res judicata serves to bar proceeding with the second action.’ [Cits.]” First Fed. &c. of Detroit v. I. T. S. R. E., 159 Ga. App. 861, 863 (285 SE2d 593) (1981). Appellant having raised no genuine issue of material fact as to improper service in the Douglas County action, the trial court did not err in granting summary judgment to appellee on Count I of the complaint.

3. Appellant also argues that the trial court erred in granting summary judgment to appellee on Count III of the complaint alleging that appellee converted appellant’s personal property which was located in the mobile home at the time of the foreclosure. However, in her deposition testimony, appellant admitted that she did not know what items of personal property were in her mobile home at the time of the foreclosure as she had not visited the mobile home since June or July of 1984 and that she did not know the value of the personal property allegedly converted. Moreover, appellant failed to present any evidence that appellee was the entity that actually took possession of the mobile home and the personalty allegedly contained within the mobile home. Accordingly, the trial court did not err in determining that appellant failed to raise any material issue of fact for determination by a jury on Count III of appellant’s complaint.

Decided July 8, 1991.

Kendall & Kendall, Alvin L. Kendall, for appellant.

Macey, Wilensky, Cohen, Wittner & Kessler, Mark L. Golder, Swift, Currie McGhee & Hiers, Jonathan M. Engram, for appellee.

For the foregoing reasons, we affirm the decision of the trial court.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0455.
    CRIDISO v. THE STATE.
    (408 SE2d 153)
   Cooper, Judge.

Appellant was convicted by a jury of burglary and appeals the denial of his motion for new trial raising five enumerations of error.

1. Appellant first argues that the trial court erred in admitting similar crime evidence without requiring the State to first specify with particularity which of the issues the similar crime evidence was being offered to prove, i.e., identity, motive, modus operandi, course of operation or bent of mind and that the trial court should have instructed the jury to limit its consideration of the similar crime evidence to only those articulated issues. Without such a requirement, appellant argues, an accused is placed in a position of having to defend or rebut any and all permissible purposes for the admission of the similar transaction evidence, which is an impermissible burden to place on an accused.

The law is well-settled in Georgia that testimony concerning similar crimes is admissible for the limited purpose of showing identity, motive, plan, scheme, bent of mind and course of conduct, if the independent crimes are similar or logically connected to the crime for which the accused is on trial. Such evidence is relevant because “[p]roof of crimes which are similar or are closely connected to the crime charged does tend to establish the crime charged.” State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980). Appellant has failed to cite any precedent which would restrict the admissibility of similar crime evidence in the manner requested by appellant, nor has he raised any arguments which would persuade this court to establish such a rule at this time. If similar crime evidence is relevant to the issues at hand and probative of identity, motive, plan, scheme, bent of mind or course of conduct, then the State may offer such evidence to prove any or all of said issues. See, e.g., Williams v. State, 251 Ga. 749, 785 (312 SE2d 40) (1983).

The trial court properly instructed the jury, without request, to consider the similar crime evidence for the limited purpose of showing identity, plan, motive, scheme, bent of mind or course of conduct. State v. Johnson, supra at 656. However, for the reasons stated above, the trial court was not required to further limit the jury’s consideration of the similar crime evidence in the manner asserted by appellant. Moreover, appellant never requested the trial court to instruct the jury to limit its consideration of the similar crime evidence in the manner now argued on appeal, and this court has repeatedly held that failure to instruct the jury as to the limited purpose for which evidence is offered, is not error in the absence of a request. See, e.g., Fussell v. State, 187 Ga. App. 134 (3) (369 SE2d 511) (1988).

2. In his second enumeration of error, appellant contends that the trial court erred in admitting evidence that appellant pled guilty to four counts of burglary in 1986. “ ‘(B)efore evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.’ [Cit.]” Masters v. State, 186 Ga. App. 795 (2) (368 SE2d 557) (1988). “Although there must exist ‘sufficient similarities’ . . . , the two occurrences need not be identical. [Cit.]” Brown v. State, 197 Ga. App. 155, 156 (398 SE2d 34) (1990). Lapse of time between the commission of prior similar crimes and the commission of the offense currently at trial is only one factor to be taken into consideration when balancing the probative value of the evidence against its potentially prejudicial impact. Oller v. State, 187 Ga. App. 818 (2) (371 SE2d 455) (1988). We have carefully reviewed the evidence and find the four previous burglary convictions in 1986 to be sufficiently similar to the circumstances of the present offense and probative of appellant’s identity in that all five burglaries involved similar schemes, methods and designs. See, e.g., Martin v. State, 198 Ga. App. 488 (402 SE2d 95) (1991); Masters v. State, supra. Accordingly, the trial court did not abuse its discretion in allowing evidence of appellant’s prior burglary convictions for the limited purposes for which the jury was properly instructed.

3. Appellant asserts in his third enumeration of error that the trial court erred in admiting into evidence certified copies of his previous burglary convictions which included the sentences received by appellant and an order that appellant be evaluated for drug addiction, submit to random drug testing and complete a drug treatment program. “We share appellant’s concern here that the sentence in a prior offense does not show motive, intent, scheme, and bent of mind; however, appellant must show not only error but harm. [Cits.] While the better method would be not to admit the sentence in a prior offense where a similar transaction is involved, in the case sub judice it is ‘highly probable’ that the admission of the sentence did not contribute to the verdict. [Cit.]” Groble v. State, 192 Ga. App. 260 (2) (384 SE2d 281) (1989). Hence, this enumeration of error is without merit.

4. In his fourth enumeration of error, appellant argues that the trial court erred in admitting into evidence testimony and exhibits pertaining to an eyewitness’ pretrial photographic identification of appellant and in permitting an in-court identification of appellant by the eyewitness. “ ‘[Convictions] based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Cits.)’ [Cit.]” Arnold v. State, 198 Ga. App. 449 (402 SE2d 69) (1991). Contrary to appellant’s contention, we find no evidence that the pretrial photographic display presented to the eyewitness was unduly suggestive or coercive. Furthermore, although it may not be good practice for a police officer to indicate to a witness that he has chosen the “right guy” after a pretrial photographic display, which apparently occurred in this instance, a subsequent in-court identification is not automatically tainted by such a comment if it does not depend upon the prior identification but has an independent source. Dodd v. State, 236 Ga. 572, 573 (224 SE2d 408) (1976). See also Butler v. State, 191 Ga. App. 620 (1) (382 SE2d 616) (1989). The evidence indicates that the eyewitness had an opportunity to observe appellant at least three times during the commission of the burglary at a range of four feet to ten yards during daylight hours and that the eyewitness quickly identified appellant’s photograph at the pretrial photographic display two days later. “Under the totality of the circumstances present here, the pretrial photographic identification in this case did not impermissibly taint the subsequent in-court identification of the appellant.” Dodd v. State, supra at 574.

5. In his fifth enumeration of error, appellant argues that the trial court’s charge to the jury was coercive and forced the jury to render a verdict in a short period of time, preventing them from exercising due care and deliberation in their verdict. We disagree. The trial court charged the jury: “Ladies and Gentlemen, as I told you before, your verdict must be unanimous. Must be agreed to by all twelve of you. I[t] must be a twelve to zero vote. It must be dated. Today is May the 31st, 1990. Hopefully will still be May 31st when y’all reach your verdict. . . .” From our review of the transcript, it appears that the trial court merely intended to interject humor into the proceedings and did not expect the jury to take his remark seriously. Moreover, even if the jury took the comment seriously, the trial court also instructed the jury that “no juror is required to surrender an honest opinion merely for the sake of reaching a unanimous verdict, if in their conscience and pursuant to their oath as a juror they honestly believe their opinion should not be changed.” “ ‘ “The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same. (Cits.)” [Cit.]’ [Cit.]” Johnson v. State, 187 Ga. App. 803 (3) (371 SE2d 419) (1988). We find that when viewed in its entirety, the jury was properly charged of its obligation to exercise care and deliberation in reaching a verdict. Accordingly, we find this enumeration to be without merit.

Decided July 8, 1991.

Steven L. Harris, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Sylvia A. Martin, Rebecca A. Keel, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0691.
    BOYD v. EMPLOYEES’ RETIREMENT SYSTEM OF GEORGIA.
    (408 SE2d 157)
   Pope, Judge.

Plaintiff William R. Boyd was terminated in 1984 from his employment as a driver’s license examiner for the Georgia Department of Public Safety for accepting bribes for improperly issuing driver’s licenses without requiring testing or identification and issuing licenses to names and addresses which he knew to be false. He entered a plea of guilty to criminal charges brought against him and was sentenced to probation under the first offender laws. He applied for involuntary separation retirement benefits but defendant Employees’ Retirement System of Georgia denied his request, finding that his separation was not involuntary because he “knew or should have known that he was engaging in activities which would lead to his dismissal.” Plaintiff filed a complaint against defendant asking the trial court to award him involuntary separation benefits. The trial court granted summary judgment to defendant and denied plaintiff’s motion for summary judgment. Plaintiff appeals.

Plaintiff was first employed before March 31, 1972 and thus would be entitled to benefits for involuntary separation without prejudice pursuant to OCGA § 47-2-123. “ ‘Involuntary separation from employment without prejudice’ means separation or release from service other than by the willing choice of a member, provided that such member has not been convicted in a court of competent jurisdiction of any crime involving moral turpitude or malfeasance in office or has not been forced to make restitution for any funds or property wrongfully taken by the member.” OCGA § 47-2-1 (20). Plaintiff argues he qualifies for involuntary separation benefits because, having served his sentence of probation as a first offender, he has no record of criminal conviction. The denial of his benefits, however, was not based on a finding that he was separated “with prejudice” due to a criminal conviction (see OCGA § 47-2-1 (21)) but on the finding that his termination was not involuntary since it was brought about by his own knowingly wrongful behavior. When, as in this case, an employee has been separated from employment without prejudice, the relevant issue for determining whether the employee is entitled to separation benefits is whether the termination was voluntary or involuntary. See Employees[’] &c. of Ga. v. Almgren, 235 Ga. 368 (1975).

“[A] state employee who knowingly and intentionally causes or brings about his own dismissal from state employment, or engages in conduct which he knew or should have known would lead to his dismissal from employment, is not involuntarily separated from service within the meaning of that term in the Act governing the Employees’ Retirement System of Georgia.” Haggins v. Employees’ &c. of Ga., 255 Ga. 352, 354 (2) (338 SE2d 1) (1986). In Haggins, in which the employee’s conduct consisted of repeated tardiness, unexplained absences, disruption of work, insubordination of his supervisor and harassment of co-workers, the issue of the voluntariness of the employee’s termination was submitted to a jury. Here, however, the employee’s objectionable conduct consisted of the illegal acceptance of gratuities and the purposeful failure to comply with state laws and regulations. Plaintiff admitted in response to defendant’s requests to admit that he knew he was violating these laws and regulations. We agree with the trial court that “[t]he egregious nature of Plaintiff’s conduct constitutes the kind of activity that any employee would know or should have known would result in his dismissal and thus, would not constitute involuntary separation with [in] the meaning of that term in the statute governing the [Employees’ Retirement System of Georgia].” Summary judgment in favor of defendant is appropriate in this case.

Decided July 8, 1991.

Gregg Loomis, for appellant.

Michael J. Bowers, Attorney General, Wayne P. Yancey, Senior Assistant Attorney General, Susan L. Rutherford, Assistant Attorney General, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

       We note that plaintiffs employment, and therefore membership in the retirement program, was terminated prior to the effective date of OCGA §§ 47-1-21; 47-1-22; and 47-1-23.


text:
    A91A0721.
    WOMACK v. BURGESS.
    (408 SE2d 159)
   Pope, Judge.

Plaintiff John Franklin Burgess filed a negligence action against defendant Wilma Annette Black Womack alleging he suffered injuries which exacerbated a pre-existing condition when defendant backed her vehicle out of a driveway onto the road and into the path of plaintiff’s vehicle, causing a collision. Judgment was entered on the jury verdict awarding plaintiff $30,000 and defendant appeals.

1. Plaintiff presented no evidence of medical bills incurred as a result of the accident but the trial judge allowed the jury to consider plaintiff’s claim for future medical expenses. In this regard, plaintiff’s doctor testified plaintiff would be required to spend a minimum of $500 per year on medication. In addition, he testified plaintiff might have to undergo a surgical procedure which would cost approximately $15,000. In the doctor’s opinion, the likelihood that such a procedure would be required was “50/50.” The necessity for the procedure would depend upon the diagnostic results of a myelogram and other tests. According to the doctor’s testimony, whether these tests would be performed depended upon whether plaintiff continued to suffer pain and limitation of activity “to the point that he is not gainfully employed . . . .” However, because the operation offered limited results and involved risks, it was the doctor’s opinion that, “as long as his symptoms are not worse than they are right now, I think he needs to wait and see how long he can tolerate this.” Defendant objected to the testimony concerning surgery on the ground it was insufficient to support a finding of such damages, but the objection was overruled. Defendant also objected to the giving of jury instructions on future medical expenses. On appeal defendant argues the trial court erred in admitting evidence of future medical expenses and in charging the jury that such damages could be awarded.

Decided July 8, 1991.

Reinhardt & Whitley, Glenn Whitley, for appellant.

Allen, Kelley & Sowell, Lynn Kelley, for appellee.

Sufficient evidence was presented to submit to the jury plaintiff’s claim for future expenses for medication. We agree, however, that the trial court erred in submitting to the jury the issue of future surgical expenses. In Daugherty v. Vick, 127 Ga. App. 767 (195 SE2d 208) (1972), in which plaintiff’s expert medical witness testified: “ T think that further studies and/or treatment and/or surgery is indicated,’ ” this court held the “testimony was too inconclusive and conjectural to form the basis of a claim for future medical expense.” Id. at 769 (3). “Where no evidence is presented from which the jury can ascertain except by mere speculation and conjecture that [plaintiff] would ever have future medical expenses, a charge on this subject is erroneous. Clayton County Bd. of Ed. v. Hooper, 128 Ga. App. 817, 818 (1) (198 SE2d 373) [(1973)] and cases cited.” Wayco Enterprises v. Crews, 155 Ga. App. 775, 776 (1) (272 SE2d 745) (1980). See also Bankers Health &c. Ins. Co. v. Fryhofer, 114 Ga. App. 107 (150 SE2d 365) (1966); Camp v. Emory Univ., 95 Ga. App. 442 (98 SE2d 66) (1957); cf. Georgia Cas. &c. Co. v. Jernigan, 166 Ga. App. 872 (305 SE2d 611) (1983) (in which this court ruled the testimony of a medical expert establishing only a possibility, and not a probability, of causal connection between an automobile collision and plaintiff’s injuries was not erroneously admitted as speculative where other non-expert evidence authorized a finding of causal connection).

2. Defendant’s remaining three enumerations of error relate to alleged errors in the charge to the jury. We have examined the charge and conclude, as a whole, it is an accurate statement of the law and is not incomplete or confusing and thus provides no ground for reversible error. For the reason set forth in Division 1, however, the judgment must be reversed and defendant is entitled to a new trial.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A0079.
    BENNETT et al. v. MATT GAY CHEVROLET OLDSMOBILE, INC. et al.
    (408 SE2d 111)
   Pope, Judge.

Plaintiff Dorothy M. Bennett was injured when she lost control of her 1983 Chevrolet Citation and it ran off the road and collided with a tree. Plaintiff and her husband brought suit against General Motors Corporation and Matt Gay Chevrolet Oldsmobile, Inc., the dealership from which she purchased the car and which made repairs on the car. Plaintiffs’ expert witness testified at deposition that the accident was caused by a binding in the reconditioned power steering unit installed in the car by the dealership in an effort to correct a continuing complaint by the plaintiffs that the car was subject to loss of steering control.

Plaintiffs voluntarily dismissed the original complaint without prejudice. They refiled the complaint on November 22, 1989, two days before the expiration of the six-month renewal period granted by OCGA § 9-2-61 but after the expiration of the period of limitation for personal injury actions. Service of process was perfected on General Motors on December 5,1989, more than five days after the complaint was filed. The trial court granted defendant General Motors’ motion to dismiss the complaint for untimely service of process and granted summary judgment to both defendants. Plaintiffs appeal.

1. The first issue raised on appeal is whether the trial court abused its discretion in dismissing the claim against General Motors for untimely service of process. In this case, the period of limitation for plaintiffs’ action had expired but because the renewed complaint was filed within the six-month renewal period provided by OCGA § 9-2-61, the filing of the complaint related back to date of the timely filed original complaint for purposes of the statute of limitation. Service of process would have been automatically timely if made within five days as set forth by OCGA § 9-11-4 (c). Service was not perfected, however, until 13 days after the complaint was filed, which was 11 days after the expiration of the six-month grace period of the renewal statute. “ ‘Where an action is filed within the applicable limitation period but is not served upon the defendant within five days thereafter or within the limitation period, the plaintiff must establish that he acted in a reasonable and diligent manner in attempting to insure that proper service was effected as quickly as possible; and if he is guilty of laches in this regard, service will not relate back to the time of filing of the complaint for the purpose of tolling the statute of limitation. (Cit.) The plaintiff has the burden of showing that due diligence was exercised. (Cits.) Ordinarily, “(t)he determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” (Cit.)’ Shears v. Harris, 196 Ga. App. 61 [, 62] (395 SE2d 300) (1990).” Green v. Young, 197 Ga. App. 101, 101-102 (397 SE2d 509) (1990).

“[T] he correct test must be whether the plaintiff showed that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible.” Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360) (1975). General Motors argues that the dismissal was not an abuse of discretion because plaintiffs presented no evidence that they acted in a reasonable and diligent manner. The record shows, however, that plaintiffs provided the sheriff’s office with the proper address of defendant’s agent for service of process on the date the renewal complaint was timely filed. Thus, the record affirmatively shows the plaintiffs did all that was initially required of them. Every case of which we are aware in which this court has affirmed the dismissal of the complaint for untimely service of process has involved lack of diligence by the plaintiff in determining the location where defendant could be properly served. See, e.g., McManus v. Sauerhoefer, 197 Ga. App. 114 (397 SE2d 715) (1990); Green v. Young, supra; Shears v. Harris, 196 Ga. App. 61 (395 SE2d 300) (1990); Watters v. Classon, 193 Ga. App. 493 (1) (388 SE2d 397) (1989); Varricchio v. Johnson, 188 Ga. App. 144 (372 SE2d 455) (1988); Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828 (360 SE2d 280) (1987); Brumbalow v. Fritz, 183 Ga. App. 231 (2) (358 SE2d 872) (1987); Forsyth v. Brazil, 169 Ga. App. 438 (313 SE2d 138) (1984); Bible v. Hughes, 146 Ga. App. 769 (2) (247 SE2d 584) (1978). Thus, these cases are materially distinguishable from the facts now before us. The trial judge made no finding of laches, lack of diligence or any other factor than mere lapse of time, nor would the facts of this case support such a finding. Thus, the dismissal is reversed. See Childs v. Catlin, supra.

2. The trial court did not err in granting summary judgment to defendant dealership. The implied warranty of merchantability may be excluded in writing if conspicuous. OCGA § 11-2-316 (2). Plaintiffs’ breach of warranty claim is precluded by the disclaimer language printed on the work order signed by plaintiff Dorothy Bennett. While the text of the disclaimer is not in bold print, the heading “DISCLAIMER OF WARRANTIES” is in large capital letters and the entire paragraph, including a space where Mrs. Bennett signed the form, is blocked off by an outline. Thus, the printed language effectively precludes a claim for breach of implied warranty. See Steele v. Gold Kist, 186 Ga. App. 569 (2) (368 SE2d 196) (1988); Harris v. Sulcus Computer Corp., 175 Ga. App. 140 (3) (332 SE2d 660) (1985).

The power steering unit which plaintiffs claim was defective and caused their injuries was purchased by defendant dealership from a parts supplier in a sealed housing. Pursuant to the “sealed package doctrine,” a vendor who is not the manufacturer of a product is under no obligation to test an article purchased and sold by him for the purpose of discovering latent defects if it is an article sold in the usual course of trade and the seller is without knowledge of the article’s dangerous quality. See King Hardware Co. v. Ennis, 39 Ga. App. 355 (1) (147 SE 119) (1928). This rule is applicable to automobile dealers. Glynn Plymouth v. Davis, 120 Ga. App. 475 (2) (170 SE2d 848) (1969). The record shows defendant dealership had done business with the supplier of the power steering unit on previous occasions and had no knowledge that the unit was defective. The dealership test-drove the vehicle, making sharp turns and figure-eight turns before delivering the car back to plaintiffs and discovered no problem. Defendant dealership presented evidence that it ordered a power steering unit for the proper model year of plaintiffs’ car. The fact that the package contained internal parts which were not the same model year as plaintiffs’ car was not discoverable without taking the housing apart, as was done during discovery. As set forth above, defendant in this case was under no duty to inspect this sealed unit before installation. Contrary to plaintiffs’ argument, no factual issues concerning defendant dealership’s negligence remain. Thus, it was entitled to summary judgment.

3. Because the dealership was entitled to summary judgment, then General Motors was also entitled to summary judgment on plaintiffs’ claim of imputed negligence since no issue of the dealer’s negligence remained which could be imputed to General Motors. The trial court did not err in granting summary judgment to General Motors on plaintiffs’ strict liability claim because the facts show General Motors was not the manufacturer of the power steering package installed on plaintiffs’ car. See Pierce v. Liberty Furniture Co., 141 Ga. App. 175 (1) (233 SE2d 33) (1977).

However, we cannot hold that no issue of fact remains for jury determination on plaintiffs’ claim for General Motors’ own negligence or breach of warranty. At the time the power steering unit was installed, the warranty period on General Motors’ manufacturer’s warranty had already expired. The record reflects, however, that plaintiffs had complained earlier of steering problems with the car and that certain repairs were made by General Motors, by and through the dealership, either under the warranty or, after the warranty had expired, as a courtesy to the owners. The record also suggests General Motors was aware that the automobile model in question had a defect in the steering mechanism and that a “secret warranty” was extended by the manufacturer to correct the defect. While these facts are not conclusively established by the record, plaintiffs at this point in the proceeding need not present a prima facie case of negligence or breach of warranty. Instead, in order to prevail on its motion for summary judgment, defendant must pierce the pleadings and show that no issue of fact remains for jury determination on these issues. This the defendant has failed to do. Even though plaintiffs’ expert witness testified that the accident was caused by a defect in a replacement part neither manufactured nor installed by defendant General Motors, an issue remains for the jury to determine if General Motors was negligent or breached its warranty to plaintiffs and, if so, whether the installation of the replacement part in question was foreseeable and thus whether such negligence or breach by General Motors was the proximate cause of plaintiffs’ injuries.

Decided May 23, 1991

Reconsideration denied July 9, 1991

Awtrey & Parker, Dana L. Jackel, Barbara H. Martin, Callaway, Neville & Brinson, William J. Neville, Jr., for appellants.

King & Spalding, Lanny B. Bridgers, R. Hutton Brown, for appellees.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Cooper, J., concur.

On Motion for Reconsideration.

On motion for reconsideration, defendant General Motors Corporation argues our holding is inconsistent with Talley v. City Tank Corp., 158 Ga. App. 130 (279 SE2d 264) (1981), in which this court held a manufacturer may not be held liable for injuries proximately resulting from a defect in the design of a product when its design has been independently altered after the sale. In Talley, the modifications to the original design were made for reasons unrelated to the worthiness of the original design. Here, however, the alleged defect in the original design may be shown to be the proximate cause of the injuries if the evidence shows, as plaintiffs allege, that the replacement part was installed because the original part was defective. Thus, unlike the factual posture in Talley, an issue remains for the jury to determine whether the injury was the proximate result of a defect in the product which existed at the time it was sold.

Motion for reconsideration denied.

       Although the sheriff did not serve the agent for 13 days, we note that because the Thanksgiving holiday and two weekend periods fell within those 13 days, only seven of those days were business days on which service could have been perfected within the regular course of business.

       We are not aware of any procedure by which a plaintiff may compel a sheriff to serve properly filed process papers. A plaintiff should not be penalized for reasonably relying upon the sheriff to fulfill his duty to serve properly addressed process papers. Only if a properly executed return of service form is not filed within a reasonable time after the expiration of the five days provided for service would the plaintiff be on notice that the sheriff has not fulfilled his duty but by that time the period would have expired, anyway.


text:
    A91A0322.
    FISHER v. BOARD OF COMMISSIONERS OF DOUGLAS COUNTY.
    (408 SE2d 120)
   Pope, Judge.

Plaintiff Michelle Fisher filed a complaint for personal injuries against defendant Board of Commissioners of Douglas County on October 25, 1988. Defendant filed a timely answer and on November 29, 1988, served plaintiff with interrogatories and a request for production of documents. On February 1, 1990, after plaintiff’s responses to discovery were more than one year overdue, defendant filed a motion to dismiss plaintiff’s complaint, or alternatively, to compel responses to discovery. Plaintiff filed no response to defendant’s motion but did serve responses to defendant’s discovery requests on March 27, 1990. The trial court subsequently granted defendant’s motion and dismissed plaintiff’s complaint against defendant. Plaintiff appeals.

1. “In order for a party to utilize the court’s compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay and within 6 months after the filing of the answer.” Rule 5 of the Uniform Superior Court Rules. Plaintiff argues this rule requires a motion to compel or for sanctions to be brought within the six-month discovery period. We reject this notion. The rule makes the commencement and pursuit of discovery within the six-month discovery period a condition of using the trial court’s compulsory process. It does not require the compulsory process itself to be requested within the discovery period. The record in this case shows defendant’s discovery was promptly commenced and diligently pursued within the discovery period by the writing of a letter to plaintiff’s attorney just over one month after plaintiff’s responses were due, asking plaintiff to respond in order to avoid the necessity of a motion for sanctions. So long as discovery is promptly and diligently pursued by the moving party within the discovery period, as was done in this case, a motion to compel or for sanctions may be brought after the expiration of the discovery period.

2. (a) The argument that the trial court lost the authority to impose sanctions once responses to discovery, though late, were filed prior to the hearing on the motion for sanctions has already been addressed by this court: it “has no merit.” Danger v. Strother, 171 Ga. App. 607, 609 (2) (320 SE2d 613) (1984).

(b) Plaintiff also argues the trial court erred in finding her failure to respond to defendant’s discovery requests was willful. Plaintiff filed no response to defendant’s motion for sanctions and the record is devoid of any explanation or excuse for plaintiff’s failure to make a timely response. Willfulness is implied by the total failure to respond to discovery when no reason or excuse is offered in response to a motion to compel. Schrembs v. Atlanta Classic Cars, 197 Ga. App. 450 (398 SE2d 712) (1990); see also Bells Ferry Landing v. Wirtz, 188 Ga. App. 344 (373 SE2d 50) (1988).

(c) Rule 6.4 of the Uniform Superior Court Rules requires counsel for the party moving to compel discovery to confer with the opposing counsel prior to filing a motion in an effort to resolve the matter in conflict. Additionally, “[a]t the time of filing the motion, counsel shall also file a statement certifying that such conference has occurred and that the effort to resolve by agreement the issues raised failed.” Plaintiff contends defendant did not comply with the requirements of Rule 6.4 because the affidavit filed by defendant’s counsel in support of the motion did not certify that counsel for the parties had conferred.

Rule 6.4 refers to a motion to compel discovery; the requirement for a conference to attempt to resolve the issues raised applies more directly to the situation in which the parties disagree over what is required by the discovery request or, for example, whether certain matters requested by discovery are privileged than to the total failure to respond to discovery. Here, by contrast, the motion granted was defendant’s motion to impose the sanction of dismissal, made alternatively to the motion to compel discovery. Plaintiff’s total failure to respond is apparent from the record and was further established by the affidavit of defendant’s counsel. A copy of the letter to plaintiff’s counsel requesting prompt response to the overdue discovery request was filed in support of the motion and, though not identified by sworn testimony in counsel’s affidavit, was identified by counsel in defendant’s brief in support of the motion. This identification would be the equivalent to counsel’s “stating in his place” as an officer of the court that the letter was sent. Though the better practice would be for counsel for the moving party to identify by sworn affidavit any written communications to the opposing counsel concerning the failure to respond to discovery, we cannot say that the motion in this case was defective. The standard for review of an order dismissing a complaint for plaintiff’s failure to respond to discovery is abuse of discretion. See Bryant v. Nationwide Ins. Co., 183 Ga. App. 577 (359 SE2d 441) (1987). We find no abuse of discretion in this case.

3. Contrary to plaintiff’s final enumeration of error, the trial court did not wrongly dismiss the action against the other defendants added after the initial complaint against the Board of Commissioners of Douglas County was filed. The trial court’s order states only that the complaint against defendant (Board of Commissioners of) Douglas County is dismissed.

Decided June 12, 1991

Reconsideration denied July 9, 1991.

Rubin Law Offices, Robert P. Hoyt, for appellant.

Drew, Eckl & Farnham, James F. Cook, Jr., Theodore Freeman, Lane & Price, Barry R. Price, for appellees.

4. Defendant moved for a penalty of $500, arguing plaintiff’s appeal is frivolous. Although wé find no merit in plaintiff’s enumerations of error, we cannot say plaintiff’s arguments concerning the interpretation of Rules 5 and 6.4 of the Uniform Superior Court Rules were frivolous. Defendant’s motion for penalty is denied.

Judgment affirmed. Motion for penalty denied.

Birdsong, P. J., and Cooper, J., concur.


author: Sognier, Chief Judge.

text:
    A91A0372, A91A0373.
    HARTKOPF v. HEINRICH AD. BERKEMANN; and vice versa.
    (408 SE2d 450)
   Sognier, Chief Judge.

Heinrich Ad. Berkemann (GMBH & Co.), a German corporation (hereinafter “HAB”), brought suit against Hermes Enterprises, Inc. (hereinafter “HEI”), Erika Hartkopf, and Heinz Hartkopf to recover amounts due under a series of ten promissory notes and an open account. Consent judgment was entered against HEI. HAB then moved for summary judgment against the individual defendants, and the trial court granted partial summary judgment against Erika Hartkopf on seven of the promissory notes on the ground that she had executed the notes in her individual capacity. In Case No. A91A0372, she appeals from this grant of partial summary judgment. HAB cross appeals in Case No. A91A0373 from the denial of its motion for summary judgment against Erika Hartkopf on the remaining claims.

1. In Case No. A91A0372, Erika Hartkopf (hereinafter “Hartkopf”) first contends the trial court erred by rejecting her argument that the presence of the HEI corporate seal on the notes at issue raised a fact question whether she executed them in her representative capacity as president of HEI. The record reveals that each of the seven notes, which are executed on standardized forms with blanks to be filled in with the parties’ names and the terms of the agreement, bears Hartkopf’s signature on the signature line with the HEI seal affixed to the right of her signature. Her corporate title does not appear, nor is there any attestation for the seal. The line for the maker’s name is left blank, and HEI’s name does not appear on the face of the documents other than in the seal.

OCGA § 11-3-403 (2) provides as follows: “[a]n authorized representative who signs his own name to an instrument: (a) [i]s personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity; (b) [e]xcept as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.” A signature made in a representative capacity is defined as “the name of an organization preceded or followed by the name and office of an authorized individual.” OCGA § 11-3-403 (3). If a note is executed by an individual “in his own name with nothing on the face of the note showing his agency [he] cannot introduce parol evidence to show that he executed it for a principal, or that the payee knew that he intended to execute it as agent. [Cits.] A court may take judicial notice that the signature of an individual on the face of a note, at the bottom on the right, without limiting or descriptive words before or after it, is the universal method of signing a contract to assume a personal obligation. [Cit.]” Bostwick Banking Co. v. Arnold, 227 Ga. 18, 22-23 (178 SE2d 890) (1970). In other words, if the note falls within paragraph (a) of OCGA § 11-3-403 (2), there is no ambiguity on the face of the instrument and parol evidence is not admissible to prove agency. Southern Oxygen v. de Golian, 230 Ga. 405 (197 SE2d 374) (1973). Conversely, if either of the circumstances described in OCGA § 11-3-403 (2) (b) is present, there is an ambiguity on the face of the instrument and parol evidence is admissible on the issue of representative capacity. Phoenix Air Conditioning v. Pound, 123 Ga. App. 523, 524 (1) (181 SE2d 719) (1971).

The question whether the presence of an unattested corporate seal and an individual signature places the instrument within OCGA § 11-3-403 (2) (b) so as to permit the introduction of parol evidence is one of first impression in Georgia. Certainly the presence of an attested corporate seal indicates authority to execute the document on behalf of the corporation, OCGA § 14-2-151 (a), although its absence does not impair the validity of a corporate document. Id. at § 14-2-151 (c). Indeed, “the seal itself is prima facie evidence that it was affixed by proper authority, and the contrary must be shown by the objecting party[.] [Cits.]” Solomon’s Lodge v. Montmollin, 58 Ga. 547, 552 (1877). Accord American Investment Co. v. Cable Co., 4 Ga. App. 106, 110-111 (3, 4) (60 SE 1037) (1908) (“[u]se [of the corporate seal] imports authority to sign” on behalf of the corporation).

Given that the purpose of affixing a corporate seal is to signify corporate authority, we agree with Hartkopf that the presence of the HEI seal on the notes at issue constitutes naming of the “person represented” — the alleged corporate maker — so as to place the action within OCGA § 11-3-403 (2) (b) (name of maker shown but no indication of representative capacity), thereby authorizing the admission of parol evidence to show agency. The lack of attestation by either the corporate secretary, who is authorized pursuant to OCGA §§ 14-2-140 (22); 14-2-840 (c) to authenticate corporate records, or another corporate officer responsible for authenticating corporate records, see OCGA § 14-2-151 (a), keeps the presence of the seal from constituting prima facie evidence of corporate capacity. However, because of the meaning ascribed to a corporate seal, its presence on the notes signed by Hartkopf does raise a fact question concerning agency. See American Investment Co., supra at 110-111 (3, 4). This circumstance is distinguishable from cases such as Southern Oxygen, supra, in which the Supreme Court held that the presence of an individual signature and a corporate name did not remove the instrument from the coverage of OCGA § 11-3-403 (2) (a) because the corporate name was not identical to that of the alleged maker and the name appeared only in the address of the individual signer. In contrast, here the name on the seal is identical to that of the alleged maker, and the corporate name appears in a corporate seal, not a typed address. Accordingly, given that the presence of the seal and the Hartkopfs’ testimony concerning the surrounding circumstances and the parties’ intentions raise questions of fact as to representative capacity, we hold the trial court erred by granting summary judgment to HAB.

2. Contrary to Hartkopfs assertion in her remaining enumeration, we find nothing in the record to suggest that the lower court found “by implication” that Hartkopfs single signature could bind both her and HEI, but to the extent that any such holding was made it is controlled by our decision in Division 1 and by Yeomans v. Coleman &c. Drug Co., 167 Ga. App. 646, 647 (307 SE2d 121) (1983) (one signature denotes either principal or agent).

3. In Case No. A91A0373, HAB contends in two enumerations of error that the trial court erred by failing to grant its motion for summary judgment on the claim that the corporate veil of HEI should be pierced because of undercapitalization and commingling of personal and corporate assets. This issue is controlled adversely to HAB by the Supreme Court’s recent decision in Hickman v. Hyzer, 261 Ga. 38 (401 SE2d 738) (1991) because there is no evidence of fraudulent intent at the time of capitalization, id. at 39-40 (1); financing the corporation with personal loans is not improper, id. at 40 (2); any mismanagement of corporate assets after insolvency does not pierce the corporate veil, id.; and there is insufficient evidence of fraud or misuse of corporate assets to authorize summary judgment for HAB. See id. at 40-41 (3).

Decided June 27, 1991

Reconsideration denied July 9, 1991

John W. Timmons, Jr., Michelle C. Feinberg, for appellant.

Savell & Williams, Charles M. Dalziel, Jr., Jennifer H. Chapin, for appellee.

4. HAB next contends the trial court erred by denying its motion for summary judgment against Hartkopf in her individual capacity on a note signed by her individually and in which HEI’s name appears in the blank for the maker of the note. This enumeration is without merit, as the facts place the issue squarely within OCGA § 11-3-403 (2) (b) (name of maker but no indication of representative capacity), and thus a question of fact remains for resolution. See Division 1, supra.

5. HAB’s enumeration concerning its claim that Hartkopf executed a personal guaranty for the indebtedness at issue is similarly without merit, as the record does not support HAB’s contention that there is no question of fact remaining on this issue. Even assuming, without deciding, that HAB’s English translation of the correspondence at issue (which is written in German) is accurate, it is not clear whether Hartkopf was acting individually or on behalf of HEI. Moreover, we cannot ascertain from the record before us whether the language at issue constituted words of personal guaranty. See Yeomans, supra. HAB having failed to meet its burden of proof on summary judgment, see generally Boss v. Food Giant, 193 Ga. App. 434, 436 (388 SE2d 37) (1989), the trial court properly denied its motion.

Judgment affirmed in Case No. A91A0373. Judgment reversed in Case No. A91A0372.

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