text:
    A95A2031.
    STRATTON & COMPANY, INC. v. ARGONAUT INSURANCE COMPANY.
    (469 SE2d 545)
   Pope, Presiding Judge.

Plaintiff Stratton & Company, Inc. appeals the trial court’s grant of partial summary judgment to defendant Argonaut Insurance Company. Concluding that the trial court erred, we reverse.

Construed most favorably to Stratton, the record shows that in November 1984, it entered into a contract with GAF Office Building Ltd. to construct an office building and parking deck. Stratton subcontracted out most of the work, and construction on the project began. The construction continued until May 1986, when the work ceased due to disputes between Stratton and GAF, and due to GAF’s bankruptcy. Thereafter, Goldome Credit Realty Corporation acquired title to the property through a foreclosure proceeding. Stratton and Goldome entered into a completion contract, under which Stratton agreed to finish construction of the building and parking deck.

After the project was completed, but before the punch list items were taken care of, Goldome made a number of complaints concerning Stratton’s work. On April 26, 1989, Goldome and its assignee in interest filed suit against Stratton. Stratton forwarded a copy of the suit to its insurer, Argonaut, who denied coverage and refused to defend Stratton. On September 29,1989, Stratton settled the lawsuit by paying Goldome $468,464. Thereafter, on February 12, 1993, Stratton filed suit against Argonaut for reimbursement, damages and the costs incurred in defending the Goldome lawsuit.

After answering Stratton’s complaint denying liability, Argonaut moved for partial summary judgment as to that portion of the complaint which sought reimbursement for the monies Stratton spent in settling the Goldome suit. The trial court initially denied the motion, but upon reconsideration, granted partial summary judgment to Argonaut based on an exclusion in Stratton’s policy with Argonaut.

1. Stratton purchased the comprehensive general liability insurance policy at issue in this case from Argonaut for $900,000: $250,000 of that amount went toward a broad form property damage endorsement. The policy states in pertinent part that “[Argonaut] will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of . . . property damage to which this insurance applies, caused by an occurrence, and [Argonaut] shall have the right and duty to defend any suit against the insured seeking damages on account of such . . . property damage, even if any of the allegations of the suit are groundless, false, or fraudulent. . . .” Exclusion (n), however, states that the insurance does not apply “to property damage to the named insured’s products arising out of such products or any part of such products.” The policy defines “named insured’s products” as “goods or products manufactured, sold, handled or distributed by the named insured or by others trading under his name. . . .”

In granting Argonaut’s partial summary judgment motion, the trial court concluded that the GAF Building and its parking deck were Stratton’s “product,” and thus, that Exclusion (n) was applicable and precluded coverage under the policy. Stratton contends that the trial court erred in reaching this conclusion. We agree.

As the trial court noted, there is no Georgia case law specifically addressing the issue of whether a building should be considered the “product” of its builder, or in this case, of the general contractor responsible for the building’s construction. Therefore, we turn to case law from other jurisdictions for guidance. In doing so, we find that there is a split among those jurisdictions that have addressed the issue. Some jurisdictions have held that real property, such as the building in this case, is not a “product” within the meaning of the standard form comprehensive general liability policy. See Green Constr. Co. v. Nat. Union Fire Ins. Co., 771 FSupp. 1000, 1004-1005 (W. D. Mo. 1991); Maryland Cas. Co. v. Reeder, 270 Cal. Rptr. 719, 727-728 (Cal. App. 4 Dist. 1990); Mid-United Contractors v. Providence Lloyds Ins. Co., 754 SW2d 824, 826-827 (Tex. App. 1988); Fireguard Sprinkler Systems v. Scottsdale Ins. Co., 864 F2d 648, 654-655 (9th Cir. 1988) (applying Oregon law). This interpretation is consistent with that of the insurance industry. Reeder, 270 Cal. Rptr. at 728. Other jurisdictions have held that the definition of “product” does include a building contractor’s work product. See Westman Indus. Co. v. Hartford Ins. Group, 751 P2d 1242, 1245-1247 (Wash. App. 1988); Century I Joint Venture v. United States Fid. &c. Co., 493 A2d 370, 373-376 (Md. App. 1985). Upon review, we conclude that the better reasoned cases come from those jurisdictions that have adopted the insurance industry’s own interpretation, and found that real property, like the building and parking deck here, are not “products” and thus are not excluded from coverage by Exclusion (n) of the standard form comprehensive general liability policy.

As recognized by the Texas Court of Appeals, “in common parlance, a building is not said to have been ‘manufactured’ but rather it is ‘built,’ ‘constructed’ or ‘erected.’ ” (Citations and punctuation omitted.) Mid-United Contractors, 754 SW2d at 826. Furthermore, in the Goldome lawsuit, Goldome sought recovery for damages resulting to the building and parking deck from defective and incomplete site preparation and construction work performed by Stratton. Construction work and site preparation are not “products” under the policy’s definition. “Site preparation [and construction are] not. . . object[s] that can be conveyed from the insured to others, as the definition of [named insured’s products] implies. . . . Instead, [they constitute] the performance of a service.” (Citations omitted.) Fireguard, 864 F2d at 654.

Accordingly, we hold that recovery for property damage to the building and parking deck associated with defective and incomplete site preparation and construction is not barred from coverage by Exclusion (n). To hold otherwise, would be to disregard the distinction between “products” and “work performed,” both of which are the subject of separate policy exclusions. See Reeder, 270 Cal. Rptr. at 728. Moreover, in cases such as this, “where the language contained in an insurance policy is susceptible to two or more [reasonable] constructions, the one most favorable to the insured will be adopted.” Alley v. Great Am. Ins. Co., 160 Ga. App. 597, 600 (287 SE2d 613) (1981); see Richards v. Hanover Ins. Co., 250 Ga. 613, 615 (299 SE2d 561) (1983); OCGA § 13-2-2 (5).

2. We reject Argonaut’s contention that coverage is barred under the policy based on the “work performed” or “completed operations hazard” exclusion found in section VI (A) (3) of the broad form property damage endorsement. This endorsement does not contain a separate term granting coverage, but instead works by modifying the exclusions found in the basic policy. Specifically, the endorsement modifies and replaces Exclusion (o), which states that “[t]he insurance does not apply ... to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith. . . .” Section VI (A) (3) of the endorsement states that the insurance does not apply, “with respect to the completed operations hazard and with respect to any classification stated in the policy or in the company’s manual as ‘including completed operations’, to property damage to work performed by the named insured arising out of such work or any portion thereof, or out of such materials, parts or equipment furnished in connection therewith.”

Decided March 14, 1996.

Gambrell & Stolz, Leo J. Fogarty, Bryan M. Cavan, for appellant.

Fellows, Johnson, Davis & LaBriola, G. Terrell Davis, for appellee.

Based on the above section of the broad form endorsement, Stratton argues that the policy provides coverage for property damage to the building and parking deck resulting from the work performed and materials supplied by subcontractors on the project. We agree. The language adopted in the broad form endorsement specifically deleted the phrase “or on behalf of’ which was found in Exclusion (o). By doing so, we conclude, as have a number of other jurisdictions, that the endorsement narrows the exclusions found in the basic policy so as not to preclude coverage regarding faulty work or materials performed or supplied by subcontractors. See McKellar Dev. of Nevada v. Northern Ins. Co. &c., 837 P2d 858, 860 (Nev. 1992); Green Constr. Co., 771 FSupp. at 1006-1007; Reeder, 270 Cal. Rptr. at 726; W. E. O’Neil Constr. Co. v. Nat. Union Fire Ins. Co. &c., 721 FSupp. 984, 996 (N. D. Ill. 1989); Fireguard, 864 F2d at 649-654. While some jurisdictions have disagreed with this construction of the broad form endorsement, see Blaylock & Brown Constr. v. AIU Ins. Co., 796 SW2d 146, 154 (Tenn. App. 1990); Knutson Constr. Co. v. St. Paul Fire &c. Ins. Co., 396 NW2d 229, 236-237 (Minn. 1986), this construction is supported by the insurance industry’s own interpretation of the endorsement. See Reeder, 270 Cal. Rptr. at 725-726. It also is mandated by the principles of contract construction in this State. See Richards, 250 Ga. at 615; Alley, 160 Ga. App. at 600.

Judgment reversed.

Ruffin, J., concurs. Beasley, C. J., concurs in judgment only.

       Contrary to Argonaut’s assertion, in Gary L. Shaw Bldrs. v. State Auto. Mut. Ins. Co., 182 Ga. App. 220 (355 SE2d 130) (1987), we did not specifically address the issue of whether a building was a “product” within the meaning of the standard form comprehensive general liability policy because both parties in that case agreed that the house at issue was a “product.”


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A95A2187.
    FARMERS STATE BANK v. HUGUENIN.
    (469 SE2d 34)
   Beasley, Chief Judge.

1. This case of alleged legal malpractice comes to us after the grant of summary judgment to defendant attorney, but not on the issue of legal malpractice. Rather, the focus is on whether the action was brought too late. The precise question is whether there is any evidence to raise an issue of fact which, if such fact is found in plaintiff’s favor, would permit the application of OCGA § 9-3-96 to toll the expiration date for filing plaintiff’s legal malpractice claim.

Appellant/plaintiff Farmers State Bank must produce some evidence to counter the defendant attorney’s sworn statement that when he reviewed and signed the preliminary and final certificates of title, he “failed to notice” that the certificates did not reveal lifetime reservation of timber rights and hunting rights in the grantor of a deed he had drawn less than three months before he signed the preliminary certificate. He admitted that he “was aware of’ and “personally knew of’ the reservations at the time and contended that the omissions “were due to clerical errors by him and his staff.”

The bank contends that the fraud which tolled the four-year statute of limitation until discovery of the professional negligence (and of the fraud alleged in Count 2) was in defendant’s concealing, by signing the certificates, that he failed to perform the professional duties required before one signs a certificate of title, to wit, not reviewing the file, not supervising his employees (the associate and his secretary), not reaching an informed professional opinion about the title, and not proofreading the certificates against the file information. His very certifications, in other words, constitute fraud by deliberately misrepresenting to the bank, and leading it to believe, that he had performed within the required professional standard.

The undisputed facts establishing the setting for this dispute are as follows. On March 30, 1989, defendant prepared a fee simple deed for a conveyance of unimproved real property from father to son, with a reservation of timber and hunting rights in the father for his lifetime. A few months later the son desired to borrow money from the appellant bank, and the property was to secure the loan. The son had defendant provide the title certificates, both preliminary and final, which were accepted by the bank. Both certificates failed to reveal the reservation of rights, although they were signed by defendant attorney, who personally knew of the reservations because he had drafted the deed. A member of his staff had done the title search, and his real estate secretary had prepared the two documents.

More than four years later, in October 1993, the bank first learned of the errors from the bankruptcy attorney after the son filed for bankruptcy protection in September 1993. The trustee abandoned the property, which the bank then foreclosed on and sold with a resulting deficiency. The son’s debt was discharged in the bankruptcy proceeding, and the bank filed its complaint against the attorney on August 24, 1994.

This being beyond the four-year statute of limitation, OCGA § 9-3-25, which runs from the date of the breach of duty, see Frates v. Sutherland, Asbill & Brennan, 164 Ga. App. 243, 244 (296 SE2d 788) (1982), the bank’s action for negligence is barred unless a jury could find a fact which would support the application of OCGA § 9-3-96. That would provide the bank with four years from the date of discovery of the negligence; the complaint was filed well within this period.

The fraud which the statute provides will toll the running of the period of limitation “ ‘must be of that character which involves moral turpitude, and must have the effect of barring or deterring the plaintiff from his action.’ [Cit.]” Frates, supra at 245; Hyman v. Jordan, 201 Ga. App. 852, 854 (2) (412 SE2d 615) (1991). Furthermore, it must be actual fraud, not merely constructive fraud. Shipman v. Horizon Corp., 245 Ga. 808 (267 SE2d 244) (1980). “Because [OCGA § 9-3-96] provides for a departure from the general rule [of limitation], requires actual fraud involving moral turpitude, or a breach of a duty to disclose because of a relationship of trust and confidence, and does not toll the statute unless the fraud is distinguishable from that giving rise to the cause of action, it must be strictly construed.” Trust Co. Bank v. Union Circulation Co., 241 Ga. 343, 344 (245 SE2d 297) (1978).

The problem with the bank’s position is that it claims the fraud is the legal malpractice. Its brief states “[t]hat failure to perform even a cursory review of the file constitutes a breach of Appellee’s contract, which is legal malpractice.” This is the basic underlying task which appellant urges the attorney misrepresented he had done when he signed the certificate of title. A review of the file would not have told the attorney anything he did not already know, as he admits that he knew of the reservations. What he did not realize, whether from lack of cognitive connection or from not reviewing the file and thereby remembering, or from not reading the certificates before signing, was that the reservations were not stated in the certificates he signed and forwarded to the bank for its reliance in lending money to his client. The bank attempts to separate the legal malpractice, which it refers to as “failing to perform,” from the statute-tolling fraud, which it refers to as intentionally “signing false certificates.”

With respect to the alleged statute-tolling fraud, the bank does not contend here that the attorney deliberately misrepresented the status of the title but rather that the fraud is in what he did to determine it. Yet in its complaint the bank alleges that “the statute of limitations is tolled by the Defendant’s fraud in concealing from the plaintiff his failure to report the timber reservations and hunting license on the title certificate.”

Even if the certificates are regarded not only as certificates of the property title but also of the signing attorney’s performance of pertinent duties in accordance with professional standards, if such latter certification is not true it does not constitute fraud involving moral turpitude. Frates, supra; Edwards v. Monroe, 54 Ga. App. 791, 799 (189 SE 419) (1936). It does not reach this level of tort whether it is viewed as representation of a false fact (that he performed certain duties preliminary to certifying the title) or as silence, that is, concealment of a fact (that he did not perform those duties). Negligence, even gross negligence, does not generally constitute fraud involving moral turpitude. Compare Huff v. Anderson, 212 Ga. 32, 34 (2) (90 SE2d 329) (1955) (defining moral turpitude); Ferrell v. Haas, 136 Ga. App. 274, 277 (220 SE2d 771) (1975) (illustrating the elements of negligence); and Tidwell v. Tidwell, 92 Ga. App. 54, 57 (4) (87 SE2d 657) (1955) (defining gross negligence). It is analogous to the necessity for punitive damages to be bottomed on more than negligence or even gross negligence. See Thomas v. White, 211 Ga. App. 140, 141 (438 SE2d 366) (1993).

The plaintiff bank failed to produce any evidence that would support a finding of fraud which would toll the statute of limitation. Edmonds v. Bates, 178 Ga. App. 69 (342 SE2d 476) (1986). See generally Brown v. Kinser, 218 Ga. App. 385, 387 (2) (461 SE2d 564) (1995). Thus, the court did not err in granting the motion for summary judgment to defendant on the claim for legal malpractice.

2. Apart from the legal malpractice claim, the bank also asserted a separate tort claim for fraud, and in order for it to survive a motion for summary judgment, there must be some evidence from which a jury could find each of the five elements of the tort: “a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.” Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989). A tort claim for fraud, OCGA § 51-6-1, is distinctive from the OCGA § 9-3-96-type fraud, which “ ‘ “is not that which gives, but that which conceals, a cause of action.” [Cit.]”’ Clinton v. State Farm &c. Ins. Co., 110 Ga. App. 417, 421 (1) (138 SE2d 687) (1964); see also Union Circulation Co. v. Trust Co. Bank, 146 Ga. App. 612 (247 SE2d 197) (1978).

There is no dispute that the attorney made a misrepresentation in the title certificate, which certificate was intended to induce the bank to issue a loan to the son; that the bank was justified in relying on Huguenin’s title certificate, Kirby v. Chester, 174 Ga. App. 881, 884 (331 SE2d 915) (1985); and that the bank suffered damages as a result. A key element at issue is whether Huguenin had the requisite scienter. “ ‘Where there is no evidence (of) scienter, that is, that the false statement was knowingly made with false design, there can be no recovery. An innocent misstatement may amount to negligence but it is not fraud. (Cits.)’ [Cit.]” Ideal Pool Corp. v. Baker, 189 Ga. App. 739, 740 (377 SE2d 511) (1988).

Decided March 14, 1996.

Kerry S. Doolittle, for appellant.

Dye, Tucker, Everitt, Wheale & Long, A. Rowland Dye, for appellee.

Huguenin’s sworn statement is that when he reviewed and signed the preliminary and final certificates of title, he “failed to notice” that the certificates did not reveal a lifetime reservation of timber rights and hunting rights in the grantor of a deed he had drawn less than three months before he signed the preliminary certificate. He admitted that he “was aware of’ and “personally knew of’ the reservations at the time and contended that the omissions “were due to clerical errors by him and his staff.” The bank correctly asserts to the contrary that a jury could infer from the evidence that the attorney intentionally failed to disclose the cloud on the title, given that Huguenin initially drafted the deed reserving timber and hunting rights and just three months later “failed to notice” that the title certificates he prepared did not reveal these encumbrances.

Except in plain and indisputable cases, scienter in actions based on fraud is an issue of fact for jury determination, Hertz Corp. v. Cox, 430 F2d 1365 (5th Cir. 1970), cert. denied, 414 U. S. 825 (94 SC 129, 38 LE2d 59) (1973), as are questions relating to whether the bank could have protected itself by the exercise of proper diligence. Wiederhold v. Smith, 203 Ga. App. 877, 878 (1) (418 SE2d 141) (1992). Furthermore, “ ‘ “[f]raud may not be presumed, but, being in itself subtle, slight circumstances may be sufficient to (sustain a finding) of its existence. (Cit.) It is peculiarly the province of the jury to pass on these circumstances. (Cits.)” (Cits.)’ [Cit.]” Turner Outdoor Advertising v. Fidelity Eastern Fin., 185 Ga. App. 815, 816 (366 SE2d 201) (1988). See also OCGA § 23-2-57. Compare Paul v. Joseph, 212 Ga. App. 122 (441 SE2d 762) (1994). Accordingly, the court erred in granting summary judgment on this claim.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A2240.
    GINN v. GROTHERE.
    (469 SE2d 876)
   Beasley, Chief Judge.

Willie Ginn sued Robert Grothere d/b/a Piggly Wiggly Carolina after Ginn slipped and fell at one of defendant’s stores in Savannah, Georgia. Plaintiff appeals following the trial court’s grant of summary judgment to defendant. He contends that summary judgment was inappropriate because there are issues of material fact which must be resolved by a jury.

The trial court, which helpfully explained the basis for its judgment in detail for the parties, their counsel, and this court, is correct; the judgment is affirmed.

This case turns on the defendant/movant’s showing, as permitted by Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), that “there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” That is, there is “an absence of evidence to support the nonmoving [plaintiff’s] case,” id., in that plaintiff cannot show that defendant had constructive knowledge of the Trend liquid dish detergent being on the off-white floor of the grocery store. (This is even assuming that plaintiff, who did not see the substance either before or after he fell, did not know how much was present, did not know where it came from, and did not know what caused his fall, slipped and fell on that substance.) This involves evidence of breach of duty, the second element of tort.

The duty is “to exercise ordinary care in keeping the premises . . . safe.” OCGA § 51-3-1. The owner or occupier is not required to be an insurer of the safety of its invitees against all injury; “what the law requires is such diligence toward making the premises safe as the ordinarily prudent business [person] in such matters is accustomed to use.” Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 344 (226 SE2d 142) (1976); Newman v. Ruby Tuesday, 184 Ga. App. 827, 829 (363 SE2d 26) (1987). The statutory duty in this public store case includes the duty “ ‘ “to exercise reasonable care in inspecting and keeping the premises in safe condition.” ’ ” Brooks v. Kroger Co., 194 Ga. App. 215 (1) (390 SE2d 280) (1990). See also Food Giant v. Cooke, 186 Ga. App. 253, 254 (1) (366 SE2d 781) (1988).

This is the only avenue of liability on which plaintiff can possibly travel, as there is no evidence of the proprietor’s actual knowledge of the hazard before the fall and no evidence of its constructive knowledge by way of an employee in the vicinity who could have seen it. See Edwards v. Wal-Mart Stores, 215 Ga. App. 336, 337 (449 SE2d 613) (1994). On appeal, plaintiff acknowledges that there is no evidence that defendant had actual notice, focuses on the nearby employee theory, and mentions in only one sentence the theory of negligent inspection.

A journey down this last avenue requires a plaintiff to prove “a period of time the dangerous condition has been allowed to exist. Without such (proof) it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard.” (Punctuation omitted.) Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 429 (1) (408 SE2d 443) (1991). A defendant can establish a lack of actionable constructive knowledge “by evidence of compliance with reasonable inspection and/or cleaning procedures.” (Punctuation omitted.) Mallory, supra at 430. In considering such, we must keep in mind that “a proprietor is under no duty to patrol the premises continuously in the absence of facts showing that the premises are unusually dangerous.” Mazur v. Food Giant, 183 Ga. App. 453 (1) (359 SE2d 178) (1987). See also Brooks v. Kroger Co., supra; Winn-Dixie Stores v. Hardy, supra. There is no evidence or contention that this grocery store was unusually dangerous.

The evidence is uncontroverted that the floor was “shagged” with a big dry dust mop every two hours beginning at 9:00 a.m., with the last sweep being at 9:00 p.m. The store was open from 6:00 a.m. until midnight. The schedule, with a 5:00 p.m. sweep, was followed on that Thursday, and no slippery foreign substance was found at that time. These sweeps are logged in, as are the twice daily complete safety checks done by the manager, once in the a.m. and once in the p.m. The store maintains a program called “Don’t pass it up, pick it up,” which directs employees to pick up whatever they see and can be picked up and to get wiped up what cannot be picked up, keeping someone present until it is wiped up so no one is injured on it. An outside maintenance firm cleans the floor every night beginning about 11:00 p.m. The assistant manager who was on duty when Mr. Ginn fell testified that he goes “around the floor constantly looking at the floor, looking at the shelves, looking at the people, looking at whatever. . . . [T]hat’s not an official safety log thing, but that’s an ongoing thing.”

This incident occurred after the 5:00 p.m. sweep. The plaintiff testified that he had to be at his liquor store at 7:00 p.m. and that he was not in a hurry when he was at the grocery store. He “had plenty of time to get to work.” He had to drive to get there and in fact did drive there without difficulty after the fall, although his hand hurt. As to the time he arrived at the grocery store, plaintiff said it was “Maybe about 6:00-something. Maybe about that time . . . Maybe it was later than that. I don’t know exactly.” The assistant manager testified by affidavit that he was at the front of the store at approximately 5:50 p.m. when Mr. Ginn fell. Before he fell, he had gotten a handbasket, picked out some fruit and then some meat at the back of the store and was headed to the pastries through the detergent aisle. Thus, viewed in non-movant’s favor, the fall occurred sometime between 5:50 p.m. and a point distant enough from 7:00 p.m. to allow plaintiff time to select pastries, pay for his groceries, and drive to the liquor store without hurrying. Plaintiff had no idea how long the liquid had been on the floor when he fell; he did not even know it was there, he testified.

Decided March 14, 1996.

Charles W. Bell, for appellant.

Painter, Ratterree & Bart, Sarah B. Akins, for appellee.

With this record, plaintiff has failed to show, as he must, “that the foreign substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). See Food Giant v. Cooke, supra; Hughes v. Hosp. Auth. of Floyd County, 165 Ga. App. 530, 531 (301 SE2d 695) (1983). Unlike the situation in Smith v. Wal-Mart Stores, 199 Ga. App. 808, 809 (406 SE2d 234) (1991), where there was some evidence that the puddle seemed to have already dried around the edges and it could have been on the floor for as long as two and one-half hours, here there is no evidence how long the detergent was present and it was substantially less than two hours at the most. The jury would have to speculate as to the period of its presence.

On the other hand, as in Mallory, supra at 430, the evidence of defendant’s cleaning and inspection procedures, which were followed the day plaintiff fell, pierced plaintiff’s barely advanced theory that defendant had constructive knowledge of the detergent because it failed to exercise reasonable care in inspecting and cleaning the premises. See also Morris v. Ryan’s Family Steak Houses, 206 Ga. App. 369 (425 SE2d 362) (1992); J. H. Harvey Co. v. Johnson, 211 Ga. App. 809 (440 SE2d 548) (1994); Brooks v. Kroger Co., supra; compare Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257, 259 (2) (366 SE2d 785) (1988).

Defendant being entitled to summary judgment on these bases, as the trial court concluded, there is no necessity for us to address the question of plaintiff’s care for his own safety.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: Ruffin, Judge. Beasley, Chief Judge,

text:
    A95A2407.
    CARDIN et al. v. OUTDOOR EAST.
    (468 SE2d 31)
   Ruffin, Judge.

C. Dewayne Cardin and Cathy Cardin sued Outdoor East for breach of a lease agreement. Outdoor East moved for judgment on the pleadings on the grounds that the lease did not contain a definite description of the property and was not executed by Outdoor East. The trial court granted the motion, and the Cardins appeal from that order. For reasons which follow, we reverse.

The complaint alleges that Outdoor East agreed to lease property belonging to the Cardins for the purpose of erecting and maintaining an advertising billboard for a period of 18 years. The lease, which was incorporated in the complaint, described the subject property as “I-75.” While the lease was executed by the Cardins, it was not signed by Outdoor East.

“[W]hen a motion for judgment on the pleadings is based on the insufficiency of the complaint said motion should not be granted ‘unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts. . . .’ [Cit.]” Frady v. Irvin, 245 Ga. 307, 311 (5) (264 SE2d 866) (1980).

Applying this standard to the complaint in this case, we find that the trial court erred in granting Outdoor East’s motion. The trial court’s order states that “[t]he purported lease upon which [the Cardins’] Complaint is based does not contain a definite description of the property. Also, said purported lease is not executed on behalf of Defendant.” However, even if the description were insufficient for uncertainty or vagueness, the taking of actual possession by Outdoor East would have cured the deficiency. Barto v. Hicks, 124 Ga. App. 472 (1b) (184 SE2d 188) (1971). See also Turner Communications Corp. v. Hickcox, 161 Ga. App. 79 (3) (289 SE2d 260) (1982). Likewise, even if Outdoor East did not sign the lease, it would still be enforceable if Outdoor East partially performed under its terms. OCGA § 13-5-31. See also Valiant Steel &c. v. Roadway Express, 205 Ga. App. 237 (3) (421 SE2d 773) (1992). Thus, while the Cardins’ complaint “clearly does not state all of the essential elements of a proper cause of action to enforce [the lease], the complaint does not disclose with certainty that the [Cardins] would not be entitled to relief under any state of provable facts.” Frady, supra at 312. Accordingly, the trial court’s order granting judgment in favor of Outdoor East must be reversed.

Judgment reversed.

Pope, P. J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I agree that the court below must be reversed, but for a different reason. In addition to the matters referred to in the majority opinion, the court’s order states: “Partial payment in this case does not except the contract from the statute of frauds.” Although the lease itself had been incorporated in the unverified complaint as an alleged lease, partial payment concerns a factual contention not raised in the pleadings. When such extraneous matters are considered, a motion on the pleadings must be treated as one for summary judgment under OCGA § 9-11-56. OCGA § 9-11-12 (c); Baker v. Wulf, 173 Ga. App. 674, 675 (327 SE2d 796) (1985).

Decided March 14, 1996.

Kitchens, Wolfson, Smith, Hannan & Parker, B. Miles Hannan, for appellants.

Elliott & Blackburn, W. G. Elliott II, for appellee.

However, the court below gave no indication that it would treat the motion as one under OCGA § 9-11-56, either before, during, or after the hearing on the motion. Until it produced its order there was no indication that the court would consider matters outside the pleadings. While the court could treat the motion as one under OCGA § 9-11-56, when doing so “all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.” OCGA § 9-11-12 (c); American Car Rentals v. Walden Leasing, 215 Ga. App. 621, 622 (451 SE2d 537) (1994). This includes the requirement of 30 days’ notice of the hearing on the motion for summary judgment. OCGA § 9-11-56 (c); American Car Rentals, supra. Outdoor East moved for judgment on the pleadings on March 20, 1995, a hearing was conducted on April 26, 1995, and the court’s order was entered on May 22, 1995.

While the motion for judgment on the pleadings was filed more than 30 days before the hearing, it did not rest upon any matters outside the pleadings, relying only upon the lease and the law. Therefore, the motion itself did not serve as notice that the motion would be considered as one for summary judgment. Compare Jones v. Ward, 201 Ga. App. 757, 758-759 (1) (412 SE2d 576) (1991); see also Hart v. Sullivan, 197 Ga. App. 759, 760-761 (1) (399 SE2d 523) (1990) (physical precedent only). As the Cardins were given no notice of OCGA § 9-11-56 treatment, they were deprived of any reasonable opportunity to present material appropriate to a summary judgment motion. See Samuelson v. Lord, Aeck & Sergeant, Inc., 205 Ga. App. 568, 573 (3) (423 SE2d 268) (1992). The amount of time they had to respond to a motion on the pleadings is irrelevant; it is notice of treatment under OCGA § 9-11-56 that controls.

Had the court informed the parties it would consider matters outside the pleadings, evidence on issues such as the signature of Outdoor East’s “witness,” possession, surveys, payment history, and other factual matters that the parties now refer to in their briefs could have been gathered and presented. Although the court had the power to consider matters outside the pleadings, doing so without providing a reasonable opportunity to present evidentiary materials requires reversal. Jim Altman Ins. v. Zorn & Son Ins. Agency, 184 Ga. App. 575 (362 SE2d 142) (1987).


author: Andrews, Judge.

text:
    A95A2417.
    HALE v. THE STATE.
    (469 SE2d 871)
   Andrews, Judge.

Harry Eugene Hale appeals from the judgment entered on his conviction of three counts of forgery in the first degree based on unauthorized use of the credit card of Christoph Zahn, who disappeared in Atlanta in the spring of 1992. We affirm.

1. Viewed so as to support the jury’s verdict, the evidence showed that Zahn, a 21-year-old student who lived in Switzerland but held joint Swiss-American citizenship, embarked on a tour of the United States in September 1991, staying with numerous friends. Zahn did not like alcoholic beverages and did not drink, except for an occasional glass of wine with dinner at home. Zahn also did not drive or have a driver’s license. He had a MasterCard with him for expenses. He stayed over the Christmas holidays with the Van Nordens of St. Simon’s Island until January 1992, when he continued touring. Zahn kept in touch with the Van Nordens by phone and letter from then until April, when the contact ceased. The last known contact by Zahn with anyone was a telephone call from Atlanta on April 29 to his travel agent, verifying plans for a bus trip of national parks, leaving from Atlanta. In May, the Van Nordens notified Zahn’s mother in Switzerland that they had lost contact with Zahn. She also had not heard from him after receiving letters from him in April and a telephone call that month telling her he was returning two days early. His prepaid plane ticket was never used or cashed in. Zahn was reported missing in May and, in August 1992 after the police had not found him or any leads, Mrs. Zahn, through the Van Nordens, hired Select, Inc. of St. Simon’s, a private investigation firm composed of former federal agents, to search for her son.

Select’s Richard Jones, former Secret Service agent and instructor at the Federal Law Enforcement Training Center, obtained a number of credit card receipts for Zahn’s MasterCard and other documents bearing his purported signature from numerous Atlanta area businesses, including three in Cobb County — a charge slip for food and beverage at Bimbo’s Saloon & Eatery on April 30, 1992 (Count 1), a Red Roof Inn guest registration card for May 2, 1992 (Count 2), and a charge slip for Minks Package Store on May 7, 1992 (Count 3). Jones obtained from Minks the security videotape for May 7 and, by matching the cash register receipt with the charge slip, was able to find a picture of a white male, slightly balding, using the Zahn MasterCard. Zahn had a full head of long brown hair, over his shirt collar. This was the first lead obtained and Jones had photos of the man made from the videotape. The photos were taken from overhead and the side of the man using the card.

Jones also obtained a motel receipt from a Carrollton motel, showing a room rental in May in Zahn’s name. He determined that three phone calls were made from that room, including two local calls traced to Musick and Turner, two local teenagers. Talking to these young men, Jones discovered that they had met a man using the name “Christoph” while on a visit to Cumberland Mall in the spring of 1992. They said he had a “funny accent” and told them he was from Switzerland. They talked with him for about 15 minutes and gave him their phone numbers.

Law enforcement authorities from Cobb and Carroll Counties and the GBI were contacted and the two young men were brought to Atlanta on October 13 in order to prepare a composite drawing of the man they met. Further investigation identified Hale and, on January 6, 1993, the two men were shown a photo spread from which each separately identified Hale as the man they met at the mall.

On February 2, 1993, Cobb County Deputy Janes and another Cobb Deputy, along with GBI agent Cox and Select’s Jones, went to Floyd County, Kentucky in an effort to find Hale and to obtain a search warrant for his residence there. While they were unable to find Hale, Floyd County Sheriff Thompson, based on a five-page handwritten statement of Deputy Janes summarizing the investigation, portions of which he independently verified, signed the affidavit and a search warrant for Hale’s home was issued. Found in Hale’s bedroom during that search were Zahn’s camera bag, with his handwritten name tag partially obliterated by a black marker, his two cameras, and an Amish quilt which Zahn had purchased in Pennsylvania for his mother. Also taken by the officers were numerous canceled checks and a handwritten two-page letter bearing the signature “Harry E. Hale” or “Harry.”

Handwriting expert Anthony opined that the “C. Zahn” signatures on the charge slips and registration card exhibited significant similarities to the known writings of Hale. Further, he opined that the signatures did not match Zahn’s known writing, including his signature on the camera bag brought up by the lab.

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

2. Hale’s first enumeration is that the court erred in admitting testimony “derived directly from items seized pursuant to a search warrant which was lacking in probable cause and was illegally executed.”

(a) On the issue of probable cause for the issuance of the search warrant, this Court “can consider all relevant evidence of record, wherever located, including that adduced at a suppression hearing before trial and that adduced during trial. [Cit.]” Garcia v. State, 207 Ga. App. 653 (1) (a) (428 SE2d 666) (1993); Clark v. State, 217 Ga. App. 113, 114 (1) (456 SE2d 672) (1995); Maxwell v. State, 211 Ga. App. 73 (438 SE2d 389) (1993). Further, “the trial court’s decision, express and implied, as to credibility and disputed questions of fact at a suppression hearing must be accepted on appeal unless clearly erroneous. [Cits.]” Garcia, supra at 654.

(b) Although Hale argues here that the evidence is not clear as to whether or not the five pages of handwritten notes by Deputy Janes were attached to the affidavit signed by Sheriff Thompson, equivocation, if any, on this matter was resolved below in favor of the State and we do not find this decision clearly erroneous. Id.; see Williams v. State, 193 Ga. App. 677, 678 (388 SE2d 893) (1989).

(c) Hale also contends that the information supporting the warrant was stale.

Under the standard of Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), adopted by Georgia in State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984), probable cause means “reasonable grounds” and “ ‘is that apparent state of facts which seems to exist after reasonable and proper inquiry.’ [Cit.]” Id. “[T]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Stewart v. State, 217 Ga. App. 45, 46 (456 SE2d 693) (1995).

“ ‘Time is assuredly an element of the concept of probable cause. (Cit.) However, the precise date of an occurrence is not essential. Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant. (Cit.)’ State v. Luck, 252 Ga. 347 (312 SE2d 791) (1984).” Miller v. State, 195 Ga. App. 89, 90 (2) (392 SE2d 334) (1990).

Hale contends that, since the warrant was not issued until February 1993 and the fraudulent use of the credit card was in April and May 1992, the information presented in the affidavit and Janes’ summary was stale.

Here, because of the nature of his trip, Zahn was not known to be missing until late May, after the fraudulent use of his credit card, and it took several months more to find any clue to the identity of the man using it. Unsuccessful attempts to find Hale continued until the Kentucky address was discovered and the warrant obtained. It cannot be said that the lapse of time here made the information stale. Holden v. State, 202 Ga. App. 558, 560 (2) (414 SE2d 910) (1992); Miller, supra (lapse of 95 days between occurrence of crime and discovery of it did not make information stale). Also, here, the pattern of use of the MasterCard, 31 known uses in April and May, indicated an ongoing pattern, rather than an isolated incident. See Betha v. State, 192 Ga. App. 789, 790 (2) (386 SE2d 515) (1989); Midura v. State, 183 Ga. App. 523, 525 (4) (359 SE2d 416) (1987).

(d) Alternatively, Hale argues that, even if properly issued, the execution of the warrant was illegal because private papers were seized, including a two-page handwritten letter. OCGA § 17-5-21 (a) (5) & (b).

While Hale is correct that the warrant did not specifically list as items sought the “writings” of Hale, it did request a warrant to seize “property or things consisting of evidence which tends to show that a crime has been committed or that a particular person has committed a crime.” Seizure of such evidence, even if not specifically listed in the warrant, is not improper. Banks v. State, 262 Ga. 190, 192 (4) (415 SE2d 634) (1992). There can be no question that handwriting of the suspected perpetrator is potential evidence concerning forgery.

The private papers referred to by OCGA § 17-5-21 are restricted to those covered by an applicable privilege. Sears v. State, 262 Ga. 805, 807 (3) (426 SE2d 553) (1993). Here, the contents of the letter written by Hale to his wife were not used in any way against him and only the characteristics of the handwriting contained in the letter were used by the handwriting expert for comparison purposes. Such use did not violate Hale’s rights. Lowe v. State, 203 Ga. App. 277, 279-280 (1) (416 SE2d 750) (1992).

3. Hale’s third enumeration complains of reference during the trial to the disappearance of Zahn. The only objection made at trial concerning character evidence was to the introduction of State’s Exhibit 6, a copy of Hale’s Carroll County conviction of financial transaction card fraud.

“ ‘Where an entirely different objection is presented on appeal, we cannot consider it because this is a court for review and correction of error committed in the trial court. It is well established that appellate courts may not consider objections to evidence not raised at trial.’ [Cit.]” Nelson v. State, 210 Ga. App. 249 (2) (435 SE2d 750) (1993).

4. In his fourth enumeration, Hale contends that the in-court identification of Hale by Musick and Turner and the photo spread identification by both were improperly tainted by private investigator Jones’ previous display to them of the surveillance photo, State’s Exhibit 3. This is alleged to have occurred in Atlanta when the two men were taken in to work with a police artist on a composite drawing of the man they met at the mall.

Pretermitting the question of whether use by the private investigator of the less than clear surveillance photo, taken from above, constituted an “impermissibly suggestive” display and the fact that neither Musick nor Taylor had any recall of such a display, we find that this use of the photo did not constitute a “ ‘ “substantial likelihood of irreparable misidentification.” [Cit.]’” Baines v. State, 201 Ga. App. 354, 357 (4) (411 SE2d 95) (1991). The photo spread was not shown to the men until January 1993 and there has been no showing that the surveillance photo in any way tainted the identification made from it.

There was no error in admitting the photo spread and in-court identification of Hale.

5. The fifth enumeration complains of evidence admitted at trial that was derived from documents “obtained through illegal use of grand jury subpoenas in violation of OCGA § 24-10-26.”

The documents referred to in the brief consisted of banking records obtained from Hale’s Kentucky bank and then returned to the bank and one issued to Sheriff Thompson in Kentucky for those items seized during the search pursuant to a warrant (Division 2).

There has been no showing that any information was obtained from the bank by this subpoena which added any information to that obtained from Hale’s checks seized pursuant to the warrant. Additionally, neither the checks nor other bank documents were introduced into evidence at trial, nor was any testimony connected with them or derived from them introduced. Even assuming error, there has been no showing of harm to Hale. Vincent v. State, 210 Ga. App. 6, 7 (2) (435 SE2d 222) (1993).

The evidence seized pursuant to the warrant was transferred to Cobb County authorities by the Kentucky sheriff. Hale contends that use of a subpoena for this purpose was improper. Again, even assuming impropriety, the evidence had lawfully been seized from Hale under the warrant, Sheriff Thompson did not testify during the trial, and the physical evidence was all identified by Deputy Janes and private investigator Jones who were in Kentucky when the evidence was seized. That there may have been a procedural impropriety in the transfer from one jurisdiction to another does not make use of the evidence at trial harmful. Vincent, supra; see Sacchinelli v. State, 161 Ga. App. 763, 764 (1) (288 SE2d 894) (1982).

6. Finally, Hale contends that he was. improperly sentenced as a recidivist under OCGA § 17-10-7 when the Carroll County conviction was still under appeal.

While Hale was indicted as a recidivist, the transcript of the sentencing hearing shows that the court did not consider the Carroll County conviction for sentencing purposes because it was still on appeal. Dunn v. State, 208 Ga. App. 197, 198 (4) (430 SE2d 50) (1993). There was no error.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Decided March 14, 1996.

Roderick H. Martin, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.


author: Ruffin, Judge.

text:
    A95A2445.
    FREEMAN v. PITTMAN et al.
    (469 SE2d 543)
   Ruffin, Judge.

Geneva Freeman sued Thomas Pittman and his law firm (“Pittman”) for legal malpractice, alleging that Pittman failed to inform her of a lien on her property. Freeman appeals from the trial court’s grant of summary judgment to Pittman. We reverse.

Viewed in a light most favorable to Freeman as the non-movant, the evidence shows that in September 1989, Freeman hired Pittman to represent her in her divorce, ascertain the amount of debt that existed on two parcels of property she expected to obtain in the divorce, and determine what it would take to obtain clear title to the property. The parcels at issue were a 233-acre farm and 15 acres upon which her home was located (“home property”). When she hired Pittman, Freeman was aware that Farmers Home Administration (“FmHA”), the Small Business Association (“SBA”), and the Plain Product Credit Association (“PCA”) held various deeds to secure debt granting a security interest in the properties. FmHA held the first mortgage on the home property, and SBA’s security interest was secondary. Freeman testified she had been informed that the SBA debt had been extinguished and was no longer of record, but as a precaution she instructed Pittman to check with the entities which previously held security interests and determine if that was the case and what would be required for her to own the property free and clear.

In May 1991, FmHA began foreclosure proceedings on the home property and Freeman hired another attorney, Hugh Gordon, to stop the foreclosure. Gordon negotiated a settlement with FmHA and extinguished its lien on the home property. Freeman testified that Pittman subsequently informed her that her only debts with respect to the parcels were to FmHA and PCA and that she understood that to mean that the SBA lien on the home property had in fact been canceled. In fact, however, that lien was not canceled and after Freeman settled with FmHA and FmHA’s security interest in the home property was canceled, SBA’s lien took a first priority position. Thereafter, SBA began foreclosure proceedings to satisfy its $60,900 security deed, and Freeman was required to make payments to SBA totaling $92,860 in order to keep the property. Freeman alleged that had Pittman informed her of SBA’s security interest, which she instructed him to ascertain, she could have settled with SBA for a “nominal” amount while SBA was still the secondary lien holder. Alternatively, Freeman contends she had friends and family who could have purchased the home property when FmHA foreclosed, thereby extinguishing SBA’s security interest. In short, she contends she would have pursued other options to satisfy or eliminate the lien for far less money than she was ultimately forced to pay.

1. Freeman contends that the trial court erred in granting Pittman summary judgment because material issues of fact exist with respect to Pittman’s negligence. In Pittman’s motion for summary judgment, he did not attempt to negate this element of Freeman’s claim, but rather, argued only that Freeman’s complaint was defective because the expert affidavit attached to the complaint relied upon facts which were untrue. Freeman subsequently amended both her complaint and expert affidavit, and Pittman now argues the new affidavit was deficient because it did not contain sworn or certified copies of the documents upon which the expert relied. We note initially that there is no evidence that Pittman raised this argument below, and he has therefore waived the right to assert it on appeal. See Thompson v. Long, 201 Ga. App. 480 (2) (411 SE2d 322) (1991). Furthermore, assuming Pittman’s assertion is true, it is immaterial as the affidavit was filed for pleading purposes, not for summary judgment. Williams v. Hajosy, 210 Ga. App. 637 (1) (436 SE2d 716) (1993) (affidavit insufficient to satisfy OCGA § 9-11-56 may still satisfy requirements of OCGA § 9-11-9.1 and sufficiency of expert affidavit should be attacked via motion to dismiss, not summary judgment motion). Thus, Pittman failed to negate the negligence element of Freeman’s claim, and summary judgment would have been inappropriate on the basis of an alleged defect in the expert affidavit.

2. Freeman also argues that summary judgment was inappropriate because material issues of fact remain with respect to whether Pittman’s negligent failure to inform her of SBA’s security interest in the home property proximately caused her injury and damages in the form of losing the opportunity to cancel that interest and obtain clear title to her property. Citing Midland Valley Plaza v. Ga. R. Bank &c. Co., 542 F2d 945 (5th Cir. 1976), Pittman argued below, as he does on appeal, that Freeman suffered no legally cognizable injury. Specifically, he argues that because there is no proof that the SBA would have compromised its interest for a nominal amount or that a third party would have bought the property at a FmHA foreclosure sale, Freeman’s damages are too speculative to allow recovery. We disagree.

Viewed in a light most favorable to plaintiff Freeman, the evidence shows that the FmHA, SBA, and PCA had security interests in plaintiff’s land. Plaintiff was able to settle with the FmHA and PCA and clear their liens on the property. Because defendant Pittman had informed plaintiff that those were the only liens on the property, she did not attempt to settle with the SBA. As a result, the SBA’s position with respect to the encumbered property improved, so it had no incentive to settle; and plaintiff eventually had to pay the SBA considerably more than the underlying principal owed, just to keep the property. From these circumstances, a jury could certainly find that defendant’s alleged negligence (in informing plaintiff that the FmHA and PCA liens were the only liens on the property) proximately caused damage to plaintiff. Accordingly, the trial court’s grant of summary judgment to defendant must be reversed. See Nix v. Crews, 200 Ga. App. 58 (406 SE2d 566) (1991).

Decided March 14, 1996

Jones, Copeland, Lefkowitz & Greer, Taylor W. Jones, Linda R. Greer, for appellant.

Young, Thagard, Hoffman, Scott & Smith, Daniel C. Hoffman, for appellees.

Midland Valley, which was not a legal malpractice case, is distinguishable as it involved an isolated transaction. Thus, there was no similar transaction or experience which showed the likelihood of the plaintiff’s success in the absence of the defendant’s negligence. Here, on the other hand, we know that plaintiff was successful in negotiating favorable settlements with two other lien holders, one of whom was in a far stronger position than the SBA would have been. Given these favorable settlements, the inference that a favorable settlement could have been reached with the SBA is not too speculative.

Plaintiff Freeman’s experiences with the other lien holders also provide a logical basis for the jury to estimate the amount of her damages. Establishing the proximate causation of damages and determining the extent of those damages are analytically distinct elements of plaintiff’s cause of action, and the rule against the recovery of speculative damages relates primarily to speculation regarding proximate cause rather than extent. See Ga. Ports Auth. v. Servac Intl., 202 Ga. App. 777 (3) (415 SE2d 516) (1992). Once a plaintiff establishes that damages proximately flow from the defendant’s alleged conduct, “mere difficulty in fixing their exact amount” should not be a legal obstacle to recovery. See id. at 780.

Judgment reversed.

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


author: Judge Harold R. Banke.

text:
    A95A2497.
    HALL v. HOLBROOK et al.
    (469 SE2d 868)
   Judge Harold R. Banke.

Barbara Hall filed suit against John Holbrook, James Corr and Canton Textile Mills, Inc. (collectively “CTM”) for allegedly interfering with a sheriffs levy on inventory located in two storage units on Canton Textile Mills’ premises. The trial court granted summary judgment to CTM based on a finding that a party not subject to Hall’s levy owned the property at that location. For the reasons which follow, we reverse.

To prevail at summary judgment under OCGA § 9-11-56, CTM, the movant, must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to Hall, warrant judgment as a matter of law. OCGA § 9-11-56 (c). Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record and testimony reflect the following.

Phyllis Ellenburg hired Hall as the office manager for Source International, Ltd. (“Source”). According to Hall, Ellenburg, on behalf of Source, purchased the trade name “British American Antiques” from John Nolan for about $100,000. Hall testified that Source was the corporate entity which did business as British American Antiques (“BAA”). One of Ellenburg’s financial backers was R. Price Garner, who later entered into a leasing arrangement with CTM and claimed the inventory at issue.

As Source’s office manager, Hall supervised the transfer of Source’s antique furniture inventory from Atlanta to units 114 and 115 which Ellenburg leased in her own name and the name of British American Antique Importers, Inc. from Canton Mill/Business Industrial Park, not CTM. Hall claimed she had familiarity with all the antiques because she helped move them. After Ellenburg failed to repay a loan and Source failed to pay her salary, Hall ultimately obtained a default judgment against Source for $39,417.10 plus interest on June 10, 1987.

After Ellenburg filed for personal bankruptcy, the bankruptcy court trustee sent notice to all creditors including “Canton Mill Industrial Business Park” (sic) and Hall of the proposed abandonment by Ellenburg of both the lease and any of her personal property in storage in the leased space. Neither party filed a timely objection to this notice.

Holbrook, leasing agent and property manager for CTM, testified that in or around January 1988, “British American Importers” apparently transferred the inventory to the Garners, and on January 13, 1988, Garner paid $11,850 for the rent arrearage owed on units 114 and 115.

After the purported transfer in ownership of the inventory to Garner, Ellenburg and/or her son on three separate occasions removed property. Also, according to Hall, Lynn Meadows became the new owner of British American Antiques. Meanwhile, believing that the antique furniture in storage was business inventory belonging to Source, and that the inventory was not the personal property of Ellenburg, Hall obtained a court order dated April 28, 1988, for the sheriff to levy on the “goods in storage.”

Between June and November, Hall attempted unsuccessfully to have the sheriffs department levy on the inventory. On November 1, 1988, Hall met Deputy Atkinson at CTM to initiate a levy on the inventory. After Deputy Atkinson cut the lock and placed a new lock on units 114 and 115, Hall understood that a sheriffs sale of the inventory would subsequently occur. Ultimately, Hall and Cherokee County reached a $22,500 settlement on Hall’s claims for negligent and wrongful levy by the Cherokee County’s Sheriffs Department and others.

On November 2, 1988, Corr, a consultant for CTM who was an attorney licensed in Alabama, and familiar with the process of executing on a levy, instructed Holbrook to cut the lock off, despite his knowledge that the sheriffs deputy had been there with Hall and levied on the inventory. The next day Holbrook permitted Garner to remove all the inventory, a process necessitating two or three days and requiring the assistance of several men. When Hall returned to CTM later that month she discovered that all the furniture in storage was gone, apparently transported by Garner to North Carolina allegedly for sale at auction.

Corr testified that he did not know for certain who actually owned the inventory in storage, and also admitted that he met Ellen-burg and Garner when Ellenburg brought Garner to CTM to examine the inventory. Corr testified that the company who was renting space was “Source International.” Later, after two off-record discussions, Corr attempted to alter his testimony to state that it was BAI, not Source, who was renting the facility. Corr also completed the errata sheet to reflect the correction.

The trial court concluded that Source never maintained a relationship with CTM, that Source was dissolved on April 1, 1988, that Holbrook, Corr and CTM merely acted on behalf of their tenant, Garner. On that basis, the court granted summary judgment. Held:

1. Hall contends that Source, doing business as British American Antique Importers, Inc., leased units 114 and 115 from CTM and therefore, maintained a relationship with CTM. CTM claims that Garner, not Source, owned the property at the time of the attempted levy because Garner purchased it from Ellenburg in exchange for paying the rent arrearage.

Although the lease only mentions Ellenburg and British American Antique Importers, Inc., the identity of the parties named on the lease does not settle the identity of the owner(s) of the inventory. The relationship between Source and British American or British American Antique Importers, Inc. or British American Antiques is murky at best. Whether “British American” was a corporation or merely a trade name used by Source remains unclear. Hall testified that Source and British American were interrelated and that Source did business as British American.

Moreover, the record contains some evidence of a relationship between CTM and Source. Corr testified that CTM was leasing the facility to “Source International” although Corr later attempted to retract this statement during his deposition and afterwards on the errata sheet. The general rule of construing contradictory testimony against a summary judgment respondent is inapplicable here because Corr is the movant. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). Moreover, it is not clear that Corr, an attorney, offered a reasonable explanation for changing important testimony as to the identity of the lessee and possible owner of the inventory at CTM. Because we have previously rejected the proposition that substantive deposition testimony may be erased from the record through the mere substitution of an errata sheet, Corr’s corrected errata sheet is insufficient to resolve this material and disputed fact. Ga. Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 775 (7) (403 SE2d 235) (1991).

The fact that the Office of the Secretary of State declared that as of April 1, 1988, Source was administratively dissolved would not have prevented an execution and levy against any assets or property that Source owned. See Gas Pump v. Gen. Cinema Beverages &c., 263 Ga. 583 (436 SE2d 207) (1993). Whether Source was the owner of the inventory or had any ownership interest in the inventory is a material issue of fact which remains unresolved.

2. Hall contends that Source owned the inventory at the time of the execution and levy because Ellenburg could not have properly transferred title to it via a letter to Garner.

Due to the conflicting evidence, as we noted in Division 1, the identity of the owner(s) of the inventory is a material issue of disputed fact. After Ellenburg abandoned any interest in any personal property in the storage facility pursuant to her individual bankruptcy, she had no individual interest in the inventory. From that point, it would appear that the inventory was the property of either British American Antiques or Source or their creditors. If the inventory belonged to Source or British American Antiques or British American Antiques, Inc., it is not clear by what authority Ellenburg could effectuate a transfer of ownership to Garner or anyone else. Moreover, a material issue of fact remains as to whether the owner of the inventory was subject to the provisions of the Georgia Bulk Transfer Act, OCGA § 11-6-102 et seq. If the owner of the inventory was subject to the Bulk Transfer Act, and failed to comply with the notice to creditors requirement, OCGA § 11-6-105, then the purported transfer of ownership to Garner was ineffective and the inventory remains subject to creditors’ claims.

Decided March 14, 1996.

McLain & Merritt, Albert J. Decusati, for appellant.

Alston & Bird, Scott A. McLaren, Robb E. Hellwig, W. Scott Mayfield, for appellees.

Judgment reversed.

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

       Canton Mill/Business Industrial Park was owned and operated by Canton Mills Business Industrial Park, a predecessor of Canton Textile Mills, Inc. Canton Textile Mills succeeded Canton Mills Business Industrial Park under the terms of the lease.


author: Beasley, Chief Judge. Ruffin, Judge,

text:
    A95A2510.
    HUBBARD v. THE STATE.
    (469 SE2d 866)
   Beasley, Chief Judge.

Enoch Hubbard appeals his conviction of burglary (OCGA § 16-7-1).

1. Hubbard contends that the trial court erred in failing to charge the jury on identification, his sole defense at trial, despite the absence of a request.

“Generally, where no written request for a jury charge has been filed, the failure to give that charge is not error. [Cit.] . . . However, failure to charge the sole defense, even without a request, constitutes reversible error. [Cit.]” Animashaun v. State, 207 Ga. App. 156, 159-160 (2) (427 SE2d 532) (1993). In this case, the failure to give an unrequested and still unspecified charge on identification was not “a substantial error in the charge which was harmful as a matter of law.” OCGA § 5-5-24 (c).

Defendant did not think enough of such a charge to request it in advance or to complain of its absence after the trial was concluded or to file a motion for new trial because of it. On appeal he does not set out precisely what the court should have charged but makes a reference to certain factors he says the court should have advised the jury it “may consider” in assessing reliability of the victim’s identification. He cites no authority to support reversal of the conviction in the absence of such a recitation of suggestions. While such a charge may be helpful to the jury in guiding its deliberation on the question of identification, as recognized by inclusion of a charge on identification in the Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, 2d ed., p. 39, it is not required as a matter of law. Micheli v. State, 222 Ga. 361 (149 SE2d 803) (1966).

The court thoroughly charged the jury on the elements of the crime, on the presumption of innocence, on the State’s burden to prove that he committed the burglary “beyond a reasonable doubt,” that each element of the crime had to be so proved, and that the defendant had no burden to prove innocence. The court explained the meaning of “reasonable doubt” and charged the jury that it had to determine credibility and resolve conflicting evidence. Identity being an issue, these charges patently related to it. This was sufficient, according to Micheli.

In Young v. State, 226 Ga. 553, 557 (7) (176 SE2d 52) (1970), the Supreme Court held that it was not error to refuse to give certain charges on identity even though requested. Here, defendant did not even request a charge. Defendant Young’s evidence was that he was not the person who committed the crime. Aside from technical defenses relating to the wording of the indictment and the ownership of the money taken in the robbery, no defense other than misidentification is referenced in Young’s case. It not being reversible error in that case even when requested, it is less so here.

The victim positively identified defendant as the perpetrator in court and at a lineup at the jail, and he was “fairly sure” he was the fourth person in the photo spread shown to him earlier, but he was “not a hundred percent sure.” At that time he told the officer he needed to see the person live before he could positively identify him. Hubbard was that fourth person.

The victim had ample opportunity to observe the thief in the midst of the crime’s perpetration. It occurred in daylight, about 11:30-11:45 a.m., and they came face to face in a bedroom of the home. There were no curtains on the windows and a light was on in the closet. They stared at one another “straight in the face” about half a minute and the victim asked, “What in the h— are you doing here?” The intruder responded, “I’m leaving, Mister.” The victim was three and one-half to four feet from him and could have touched him if the victim’s arms were not full of clothes. He chased the perpetrator, who faced him three or four times until he disappeared into the woods.

Considering the entire charge, the absence of a request, and the evidence which defendant challenged and sifted by cross-examination over against his own statement that he was not the thief, the absence of a list of factors which the jury could consider on the issue of identification was not harmful as a matter of law such that Hubbard was “deprived of his right to a fair trial,” as was the case in Phelps v. State, 192 Ga. App. 193 (1) (384 SE2d 260) (1989). There the trial court did not instruct the jury on the definition of the elements of the crime charged. The failure to give Hubbard’s jury the unrequested charge did not deprive it of “the proper guidelines for determining guilt or innocence.” Hardin v. State, 141 Ga. App. 115, 116 (2) (232 SE2d 631) (1977).

2. Error was also assigned to the following portion of the court’s charge on similar transaction evidence: “If you believe [the similar transaction] has been proven, however, you are strictly limited to your consideration of the evidence as to the state of mind — to the state of mind of the element of the defense charged in the indictment.” (Emphasis supplied.) It appears that this misstatement was a slip of the tongue, which, viewed in the context of the entire charge, was harmless. See generally Rodriguez v. State, 211 Ga. App. 256 (3) (439 SE2d 510) (1993).

Judgment affirmed.

McMurray, P. J., Pope, P. J., Andrews and Johnson, JJ., concur. Birdsong, P. J., Blackburn, Smith and Ruffin, JJ., dissent.

Ruffin, Judge,

dissenting.

I must respectfully dissent because it is well settled in this state that a trial judge must charge a defendant’s sole defense, even if no request is made, and failure to do so constitutes reversible error. The majority’s holding stands in direct conflict with an unbroken line of case law pre-dating this court’s decision in Glaze v. State, 2 Ga. App. 704 (58 SE 1126) (1907). In Glaze, the court set forth the principles which have guided Georgia courts for nearly 90 years as follows: “It seems to have been uniformly held by the Supreme Court that the omission to submit the controlling issue in the case to the jury was such an error as demanded the grant of a new trial. And such issue must be submitted with such appropriate instructions as will not only call the attention of the jury to the existence of the issue, but the charge of the court must contain such clear, apt, and definite exposition of the specific principles of law applicable to the case as will enable the jury to deal with the real issue in the case and properly decide it. And this is true whether a specific request be made or not. Where there is only one defense on which a party relies, to fail to instruct the jury as to this defense so specifically that the jury will be not only required to pass upon it, but will be able to do so intelligently under pertinent rules of law and evidence, virtually withdraws that defense, and is, in effect, to direct a verdict.” Id. at 708-709. See also Pearson v. State, 216 Ga. App. 333 (454 SE2d 205) (1995); Animashaun v. State, 207 Ga. App. 156 (2) (427 SE2d 532) (1993); Wells v. State, 200 Ga. App. 104 (1) (407 SE2d 86) (1991); Anglin v. State, 182 Ga. App. 635 (2) (356 SE2d 564) (1987). The majority’s reliance on Young v. State, 226 Ga. 553 (176 SE2d 52) (1970), and Micheli v. State, 222 Ga. 361 (149 SE2d 803) (1966), is misplaced because there is no indication in either case that identity was the sole defense. And, we cannot assume that because no other defense was mentioned in those opinions that identity was the sole defense in either case.

Decided March 14, 1996.

Lane & Crowe, Robert L. Crowe, Clyde M. Urquhart, for appellant.

Identification was Hubbard’s sole defense. Although he did not submit a charge thereon, he reserved his right to object to the court’s charge prior to the jury’s deliberations. In any event, we must “consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.” OCGA § 5-5-24 (c).

While the evidence, viewed in a light to support the verdict, showed that the victim and the perpetrator stood face-to-face for several seconds, the record also revealed that the victim was unable to positively identify Hubbard in the initial photographic lineup. The court charged the jury on credibility and reasonable doubt, but neither of these individual charges nor the charge in its entirety adequately covered the law pertaining to identification as set forth in the Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, 2d ed., p. 39. Hubbard correctly points out in his brief that there are several factors which the jury may consider in assessing the reliability of an identification. These factors are set forth in the Suggested Pattern Jury Instructions as follows: the opportunity of the witness to view the alleged perpetrator at the time of the alleged incident; the witness’ degree of attention toward the alleged perpetrator at the time of the alleged incident; the level of certainty shown by the witness about his identification; the possibility of mistaken identity; whether the witness’ identification may have been influenced by factors other than the view the witness claimed to have; and whether the witness, on any prior occasion, did not identify the defendant as the alleged perpetrator.

The trial court’s omission was harmful as a matter of law, requiring the reversal of Hubbard’s conviction and a new trial. Conner v. State, 160 Ga. App. 202 (6) (286 SE2d 441) (1981); Anglin, supra. We may intellectualize away the error, but the harm remains. I dissent.

I am authorized to state that Presiding Judge Birdsong, Judge Blackburn and Judge Smith join in this dissent.

Glenn Thomas, Jr., District Attorney, George C. Turner, Jr., Assistant District Attorney, for appellee.


text:
    A95A2587.
    MITCHELL et al. v. MITCHELL.
    (469 SE2d 540)
   Ruffin, Judge.

In this contentious case involving five brothers and sisters, Richard Mitchell petitioned the probate court to enjoin his siblings from obstructing a private right of way to his home by maintaining a gate, shooting at him, and other means. See OCGA § 44-9-59. Mitchell lives in the northern most part of five parcels of land which his father deeded to the siblings, and the right of way (“the road”) crosses property belonging to two of his brothers. The probate court denied the petition for two reasons. First, the court found that Mitchell had not met the conditions set forth in OCGA § 44-9-59 for removal of the gate because he had not shown “ ‘uninterrupted use’ [of the road] for a seven year period.” Further, because OCGA § 44-9-59 addresses the removal of existing obstructions, the court reasoned that it was “preclude [d] from responding to the sporadic acts of harassment and intimidation [committed by the siblings upon Mitchell]. ... If [Mitchell] is to have relief from needless and improperly motivated harassment, it is the [court’s] conclusion[ ] that his only recourse lies with the equitable powers of the Superior Court.” Mitchell appealed the denial of his petition to the superior court. After issuing two interim orders and holding a hearing on the matter, the superior court ultimately issued an order which (1) declared that Mitchell owned the five-acre parcel upon which his house was built and that Mitchell’s siblings were estopped from denying Mitchell’s title to the land; (2) established the right of way Mitchell sought contingent upon Mitchell paying his siblings $200 per year for its upkeep; and (3) ordered the gate removed from the road. The siblings appeal, and for reasons which follow, we affirm in part and reverse in part.

1. In two enumerations of error, the siblings contend the superior court lacked jurisdiction in this matter. Citing Kidd v. Unger, 207 Ga. App. 109 (1) (427 SE2d 82) (1993), they contend that because the probate court determined it lacked jurisdiction to consider Mitchell’s petition, the superior court had no jurisdiction to hear the appeal from that court. We disagree.

Unlike the plaintiff in Unger, Mitchell correctly filed his petition to prevent obstruction of the road in probate court pursuant to OCGA § 44-9-59 (a). The evidence was abundantly clear that the removal of the fence was the crux of Mitchell’s petition as that was the primary means by which the road was obstructed, and the probate court held only that Mitchell had not proved an easement by prescription, a prerequisite for it to order the obstructing gate removed. That the probate court determined it lacked jurisdiction to fashion an equitable remedy to the threats and harassment Mitchell faced is not determinative of its jurisdiction to order the obstructing gate removed. Because the probate court had jurisdiction to consider Mitchell’s petition, Unger is inapplicable, and the superior court had jurisdiction to hear Mitchell’s appeal.

2. The siblings contend the superior court erred in determining that Mitchell owned the property upon which his house is built. Citing Unger, supra, they contend the court impermissibly expanded the scope of the underlying controversy to include this issue. Mitchell does not contend that the probate court had jurisdiction to determine boundaries such that jurisdiction was proper in superior court; rather, he argues that the siblings have waived this argument because a party cannot complain on appeal of a ruling which his own conduct aided in causing. See Schill v. A. G. Spanos Dev., 217 Ga. App. 260 (2) (457 SE2d 204) (1995). The transcript demonstrates that Mitchell’s attorney began the hearing in superior court by stating that it might become necessary for the court to determine the boundaries of Mitchell’s property. Counsel for the siblings did not object to this assertion or to questions by Mitchell’s attorney which demonstrated that Mitchell was requesting the court to make such a determination. Furthermore, counsel for the siblings cross-examined Mitchell extensively about the property’s boundaries, including questions about surveys of and deeds to the property. The siblings even had their own expert surveyor testify on the subject. Thus, under any other circumstances we would agree that the siblings waived this enumeration of error. Id.

However, we cannot do so because the issue is subject matter jurisdiction. “In Dix v. Dix, 132 Ga. 630 (64 SE 790) (1909), our Supreme Court stated with regard to OCGA § 15-1-2 that it is rudimentary law that parties can not, by consent express or implied, give jurisdiction to a court; that as to the subject-matter the court is limited by the powers conferred upon it by law, and can not be given additional power or jurisdiction by consent of the parties or by waiver. . . . [A]n inability to confer jurisdiction over subject-matter upon a court, by consent or waiver, has been generally recognized and applied. . . . Subject-matter jurisdiction is established by our laws, and there is nothing parties to a suit can do to give a court jurisdiction over a matter that has not been conferred by law.” (Citations, punctuation and emphasis omitted.) Apparel Resources Intl. v. Amersig Southeast, 215 Ga. App. 483, 484 (1) (451 SE2d 113) (1994). Because the probate court lacked jurisdiction to determine whether Mitchell owned the property, the superior court (where Mitchell should have filed a petition if he desired such a determination to be made) did not have jurisdiction to decide the matter on appeal, and its lack of jurisdiction could not be waived by the siblings. Thus, that portion of the court’s order which determined that Mitchell owned the property was in error.

Decided March 14, 1996.

Haygood, Lynch, Harris & Melton, C. Robert Melton, for appellants.

3. The siblings also contend the trial court erred in finding an easement in favor of Mitchell. They contend that under OCGA § 44-9-1, an easement arising by prescription requires proof of uninterrupted use for at least seven years, and when the hearing was held in 1995, Mitchell could only show adverse use for six years. Citing Eileen B. White & Assoc. v. Gunnells, 263 Ga. 360 (434 SE2d 477) (1993), the siblings also contend that the court erred because there was no evidence that Mitchell gave them notice of his adverse claim to the road.

We do not agree that Mitchell’s siblings were never apprised of Mitchell’s adverse claim to the road given his testimony about the repairs he made to the entire road. Id. However, that is not the determinative factor. The statute requires “uninterrupted use” of the easement for seven years, and Mitchell’s testimony that the siblings began obstructing his use in 1991 precludes such finding. As noted by the probate court, Mitchell could have sought the establishment of an easement because it was “necessary to the enjoyment of lands granted by the same owner. . . .” OCGA § 44-9-1. The evidence was clear that the father of this clan deeded the property upon which Mitchell’s house was built as well as the land upon which the road ran. Likewise, there was ample evidence that the road was Mitchell’s only means of ingress and egress to and from his home. Jones v. Mauldin, 208 Ga. 14, 15 (1) (a) (64 SE2d 452) (1951). However, unlike Mauldin, where the plaintiff claimed the obstruction constituted a nuisance rather than seeking its removal as an obstruction, relief under OCGA § 44-9-59 may be provided only when the private way arose by prescription. Clark v. Anderson, 52 Ga. App. 500 (2) (183 SE 852) (1936). Thus, the probate court could not have ordered the obstruction removed, and consequently, the superior court had no authority on appeal to establish an easement and order the removal of the gate. Accordingly, that portion of the court’s order was also in error.

Judgment affirmed in part and reversed in part.

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

Martin & Martin, Karen K. Martin, for appellee.


text:
    A95A2603.
    NELSON v. JONES. TRAVELERS INDEMNITY COMPANY OF AMERICA v. JONES.
    A95A2604.
    (469 SE2d 863)
   Andrews, Judge.

In Case Nos. A95A2603 and A95A2604, Nelson, defendant below, and Travelers Indemnity Company of America (Travelers), plaintiff Jones’ underinsured motorist (UM) carrier, respectively, appeal from the trial court’s award of partial summary judgment to Jones in his personal injury suit. Nelson additionally appeals from the trial court’s granting of Jones’ motion for attorney fees and expenses. We reverse the grant of summary judgment.

After suit was filed, discovery conducted, and a pretrial order entered on November 29, 1994, Nelson filed a motion for summary judgment on February 10, 1995, contending that Jones’ attorney, Dwyer, and Houlihan, the adjuster for Nelson’s insurer, State Farm, had agreed to settle for $50,000, Nelson’s liability policy limit, and that the settlement was binding on Jones. Travelers, Jones’ UM carrier, joined that motion.

1. On September 17, 1992, Jones was seriously injured when struck from behind by Nelson while attempting to exit Georgia 400. While Nelson had only $50,000 liability coverage, Jones had $500,000 in UM coverage. Attorney Dwyer represented Jones and, on August 25, 1994, filed suit against Nelson as well as sending State Farm and Nelson a letter making “demand for his personal injury claim for injuries arising out of the incident on September 17, 1992, for the sum of $50,000.00. This demand is submitted and is based upon the understanding that $50,000.00 is your insured’s policy limits as to personal injury.” It further stated that it was made pursuant to OCGA § 51-12-14, was open for 30 days, and that “given the magnitude of the injuries, a verdict would very well be obtained in excess of the policy coverage. In the event of a verdict in excess of the policy coverage, we will contend that State Farm Mutual Automobile Insurance Company is liable for any excess because of its failure to settle the claim within its policy limits of insurance (Southern General v. Holt, 200 Ga. App. 759[, 760 (2) (409 SE2d 852) (1991)]).”

2. Nelson’s second enumeration and part of Travelers’ first enumeration contend that the trial court erred in sua sponte granting partial summary judgment to Jones after Nelson and Travelers had filed motions for summary judgment. However, neither brief argues the issue of the court’s authority to sua sponte grant summary judgment to a party who has not filed a motion and this issue has been waived. Spivey v. Safeway Ins. Co., 210 Ga. App. 775, 776 (1) (437 SE2d 641) (1993); Court of Appeals Rule 27 (c) (2). See generally Covington v. Countryside Investment Co., 263 Ga. 125, 127 (3) (428 SE2d 562) (1993).

3. Nelson’s first enumeration is that the court erred in denying his motion for summary judgment because there was no material fact issue or legal issue to be decided “regarding the offer by [Jones] or the acceptance of the offer by State Farm ... , or the legal consequences thereof.” Travelers’ first enumeration is that the court erred in concluding as a matter of law that a binding settlement agreement did not exist between Nelson and Jones and in granting summary judgment to Jones on this issue. They are considered together.

Since summary judgment was granted to Jones, we consider the evidence with all inferences in favor of Nelson and Travelers, opponents of that judgment. Eiberger v. West, 247 Ga. 767 (a) (1) (281 SE2d 148) (1981).

On September 22, 1994, State Farm’s Houlihan responded to Dwyer’s August 25 letter as follows: “This letter follows our conversation of earlier today during which I offered as full and final settlement of Mr. Jones’ claim, our policy limits of $50,000. Please contact me at your earliest convenience so that we may discuss this offer.”

Houlihan was deposed and stated that, prior to sending this letter, he and Dwyer had talked by telephone on September 22. During the deposition, Houlihan stated the following regarding that conversation: “If I was going to pay the policy limits without getting a release, you wouldn’t be protecting your insured.” “I did not have any knowledge that [Jones] would not execute a full release.” “[W]hen I got to talk to [Dwyer], I said I’ve been provided authority to settle the claim with $50,000. And I said I’m prepared to offer that to you. And he said, okay. He said, I need to talk to Travelers to see what they are going to do regarding the UM portion of the claim.” “[M]y letter to him dated September 22nd following up that conversation has a line in it, please call me to discuss this offer, which I have interpreted as meaning that I needed the information necessary to know how to make out the checks in order to be able to forward them. And that’s why they were never forwarded, never issued, never put together.”

Regarding a release, the following testimony was given: “Q. And at no time did you discuss with me [Dwyer] a release, correct? A. Best of my knowledge, no. Q. And at no time did I tell you that Mr. Jones would be willing to sign a release, did I? A. I don’t believe, here again, using of the words, I don’t necessarily believe that you said he would or would not sign it. . . . Q. And you understand that [Travelers] was very much an issue with me as you and I terminated our conversation? A. I understand now that — I understand the magnificence of now what kind of issue it was. At the time of the conversation [September 22], I came away believing that it was a matter of talking to Travelers to see what they needed to do in order to resolve it and that it was something that could be resolved. Q. But that something had to be done with Travelers before it would be resolved? A. Something had to be done with Travelers, right.”

“A contract is an agreement between two or more parties for the doing or not doing of some specified thing.” OCGA § 13-1-1.

Here, Jones had demanded from Nelson and his insurer the payment of the limits of Nelson’s policy. In response, Houlihan had received authority to pay the limits of that policy in settlement of Jones’ claim. Houlihan then called Jones’ counsel and accepted his offer. At this point, there was a contract to settle Jones’ claim against Nelson for $50,000. OCGA § 13-3-1. There is no reference in the letter sent by Jones to any reservations of claims against other insurance companies pursuant to OCGA § 33-24-41.1. Had such a reservation been intended to be part of the written offer, it should have been included. See Darby v. Mathis, 212 Ga. App. 444 (1) (441 SE2d 905) (1994); Crim v. Jones, 204 Ga. App. 289 (419 SE2d 130) (1992).

However, during the continued telephone conversation between Houlihan and Dwyer, it is undisputed that Houlihan became aware of Jones’ UM coverage with Travelers and was advised by Dwyer that he needed, before finalizing the settlement with Nelson, to continue discussions with Travelers.

Houlihan acknowledged that, at this point, he understood that Travelers’ UM claim was not to be released by any deal Jones made with State Farm and, further, that he was aware that there could be a release of State Farm without releasing Travelers.

For purposes of this opinion, we assume, without deciding, that acceptance by a tortfeasor’s insurer of an injured party’s demand made pursuant to Holt contains, as an implied term, a full and final release of all claims. Here, there still remains a factual question as to whether the parties had mutually departed from this agreement in order to allow Jones to continue and complete his negotiations with Travelers before finalizing the settlement with Nelson. OCGA § 13-4-4; Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 11 (195 SE2d 417) (1973); Cho v. South Atlanta Assoc., 200 Ga. App. 737, 739 (2) (409 SE2d 674) (1991).

Therefore, the trial court’s grant of summary judgment to Jones on this issue was error. Because of the remaining factual issues, denial of Nelson’s and Travelers’ motions for summary judgment was not error.

4. Considering our decision in Division 3, it was also error for the trial court to impose attorney fees on Nelson.

Decided March 14, 1996.

Greer, Klosik & Daugherty, John F. Daugherty, Leah R. Simpson, Robert J. McCune, for appellant (case no. A95A2603).

Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., Lisa S. Siegel, John W. Campbell, for appellant (case no. A95A2604).

Dwyer & White, J. Matthew Dwyer, Jr., Carmen Smith, for appellee.

Judgments affirmed in part and reversed in part.

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


author: Smith, Judge.

text:
    A96A0038.
    DONELSON v. THE STATE.
    (469 SE2d 861)
   Smith, Judge.

Charlie Donelson III was indicted for trafficking in cocaine. He was convicted of possession of cocaine and sentenced to serve 13 years in prison and to pay a fine of $50,000 within 90 days of release from prison. He appeals both the conviction and the sentence.

1. Donelson contends the evidence was insufficient to enable the jury to convict him of possession of cocaine. Viewed to uphold the verdict, evidence was presented that on August 15, 1994, with the assistance of a confidential informant, DeKalb County police officers arranged with an individual to purchase a quantity of cocaine. Officers were dispatched to the place agreed upon and observed an individual arrive. Both the individual and the automobile fit the descriptions provided by the informant. The individual, later identified as Donelson, was observed carrying a white object as he walked around the parking lot, across the street to a hotel, and back to the parking lot. After he reentered the car, he was surrounded by police and was ordered to exit the car. One of the officers observed Donelson place a plastic bag in the side panel of the passenger door as he exited the vehicle. The bag was retrieved and contained a substance that tested positive for cocaine. Cocaine was also discovered in Donelson’s sock. After having been advised of his rights, Donelson made a statement that the cocaine found in the vehicle belonged to him and that the driver knew nothing about the deal. We find this evidence sufficient to enable a rational trier of fact to find Donelson guilty of possession of cocaine under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Denham v. State, 218 Ga. App. 191, 192 (1) (460 SE2d 869) (1995).

2. Without enumerating the contention as error, Donelson also contends his motion to suppress his statement was erroneously denied. As “[e]rror argued but not enumerated will not be considered,” we will not consider this contention. Frink v. State, 177 Ga. App. 604, 608 (5) (340 SE2d 631) (1986). “[E]numerations of error cannot be enlarged by means of statements in the brief of counsel to include issues not made in the enumeration.” Id. at 609.

3. Donelson contends the sentence imposed on him was illegal. He contends, and the State correctly concedes, that OCGA § 16-13-30 does not provide for a fine of $50,000 for a conviction of possession of controlled substances. The trial court exceeded its authority in imposing the fine. The portion of the sentence imposing the fine is vacated, and we remand for sentencing in conformity with the statute. We find no error, though, in the sentence of 13 years to serve, as subsection (c) of the Code section provides that the maximum sentence for possession of a controlled substance is 15 years.

4. Donelson claims that the court “committed grave error” when it spoke with the jury after the verdict and prior to sentencing. While the conversation between the court and the jury was not transcribed, the court stated on the record that the jury “was concerned about Mr. Donelson’s future. They thought him to be a good-looking young man. They picked up through the course of the case there had been no prior record. For whatever reason they concluded that and they felt he deserved kind of a break.” Donelson contends that the court violated the Georgia Code of Judicial Conduct, Canon 3, which prohibits ex parte communications “concerning a pending or impending proceeding.” He maintains that the court’s “conduct was completely unnecessary and prejudicial . . . because appellant can only conclude that something is not proper” and implies that the jury played a role in the court’s determination of the proper sentence.

We disagree that the court’s conversation with the jury is a ground for reversal. First, any contention Donelson may now have has been waived, as he did not object at trial to the court’s conversation with the jury. See generally Harrison v. State, 213 Ga. App. 366, 367 (1) (444 SE2d 613) (1994). Second, there is no indication that the trial court expressed its opinion as to the guilt of Donelson or that it expressed in open court its approval or disapproval of the jury’s verdict in violation of OCGA § 17-8-57 or OCGA § 17-9-22. Further, no evidence shows that the jury influenced the court’s decision to impose the maximum penalty. In fact, the trial court indicated that the jury wished to give Donelson “a break.” While the better practice may have been to talk with the jury after sentencing, since the record does not show that the conversation with the jury adversely affected Do-nelson’s sentence, and since Donelson waived raising the issue on appeal, error, if any, was harmless.

Judgment affirmed and sentence of fine vacated.

Pope, P. J., and Andrews, J., concur.

Decided March 14, 1996.

Murray M. Silver, for appellant.

J. Tom Morgan, District Attorney, Tamar P. Stern, Nancy B. Allstrom, Assistant District Attorneys, for appellee.