author: Blackburn, Judge. Cooper, Judge,

text:
    A92A1783.
    TURNER et al. v. COMMONWEALTH MORTGAGE ASSURANCE COMPANY.
    (428 SE2d 398)
   Blackburn, Judge.

Commonwealth Mortgage Assurance Company filed suit against Michael and Julia Turner and others, seeking to recover the amount owed under an indemnity agreement executed by the Turners in favor of Commonwealth. The trial court granted summary judgment to Commonwealth and denied the Turners’ motion for summary judgment, and the Turners appeal.

The agreement in issue was executed by the appellants at a real estate closing at which the appellants purchased a condominium and executed a note and security deed in favor of Central Mortgage Company. The purchase price of the property was $75,900. Commonwealth required the appellants to execute an investor loan indemnity agreement in its favor before issuing a private mortgage insurance policy covering the lender against loss by reason of the borrowers’ default. The agreement provided that the appellants were obligated to reimburse Commonwealth for all amounts Commonwealth might be required to expend under the policy. The appellants’ mortgage subsequently was assigned to Meritor Savings Bank, and when the appellants defaulted, Meritor foreclosed and bought the condominium property at the foreclosure sale for $73,681.41. The sale was not confirmed. Commonwealth later paid Meritor $18,080.97 for its claim of loss under the mortgage insurance policy, and then sought to recover that sum from the appellants pursuant to the investor loan indemnity agreement. The appellants refused to pay that obligation under the agreement, and this action ensued.

1. The appellants contend that Commonwealth’s action to recover under the loan indemnity agreement was tantamount to an action for a deficiency judgment, and thus should be barred because of the failure to confirm the foreclosure sale in accordance with OCGA § 44-14-161. That statute prohibits an action to obtain a deficiency judgment with respect to real estate sold at a nonjudicial foreclosure sale unless, within 30 days after the sale, the person who instigated the foreclosure proceeding seeks confirmation of the sale by the superior court in the county in which the property is located. The confirmation statute is in derogation of common law and must be strictly construed. Bentley v. North Ga. Prod. Credit Assn., 170 Ga. App. 361 (317 SE2d 339) (1984); Taylor v. Thompson, 158 Ga. App. 671 (282 SE2d 157) (1981).

OCGA § 44-14-161 would bar any action by the actual lender to obtain a deficiency judgment. However, Commonwealth was not the lender, and the recovery it sought was not a deficiency. Rather, it was a debt having a completely independent contractual basis, i.e., the loan indemnity agreement between the appellants and Commonwealth.

Although the failure to confirm a foreclosure sale precludes a lender from seeking a deficiency judgment, it does not extinguish the underlying debt. Turpin v. North American Acceptance Corp., 119 Ga. App. 212 (166 SE2d 588) (1969). Further, failure to confirm does not estop even the actual lender from pursuing other contractual security on the debt. Worth v. First Nat. Bank of Alma, 175 Ga. App. 297 (333 SE2d 173) (1985); Taylor v. Thompson, supra. In the instant case, where the appellants’ possible liability to Commonwealth, not the lender, arises from a completely independent source than the debt the appellants owed the lender, Commonwealth’s action to recover under the loan indemnity agreement is not barred by the lender’s failure to have the foreclosure sale confirmed.

2. The appellants also contend that the loan indemnity agreement violated the public policy codified in the confirmation statute and, for that reason, is unenforceable pursuant to OCGA §§ 1-3-7 and 13-8-2. The purpose of OCGA § 44-14-161 is to protect debtors from deficiency judgments when the forced sale of their property brings less than fair market value. Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327 (1) (270 SE2d 867) (1980). As stated above, despite the appellants’ attempt to categorize Commonwealth’s action to recover under the loan indemnity agreement as an action seeking a deficiency judgment, it is not. The appellants’ possible liability to Commonwealth in this case arises solely under that independent contract voluntarily entered and agreed upon by the appellants in exchange for Commonwealth’s issuance of the mortgage insurance policy to the lender. Allowing Commonwealth to hold the appellants to their bargain in the loan indemnity agreement in no way vitiates the protection the appellants enjoy from the lender seeking a deficiency judgment.

The appellants rely upon Redman Indus. v. Tower Properties, 517 FSupp. 144 (N. D. Ga. 1981), as persuasive authority to support their contention that the loan indemnity agreement violated public policy. In Redman, the lender and the guarantor executed a Deficiency Debt Agreement which (1) consolidated other outstanding liabilities of the guarantor to the lender, (2) canceled the guaranty of the debtor’s note to the lender, and (3) provided that in the event of the debtor’s default on the note, the guarantor agreed to pay the lender an additional $700,000. The lender and the guarantor entered this Deficiency Debt Agreement several months prior to the default and foreclosure, and the debtor was not a party to it. Following the foreclosure sale, which was not confirmed, the guarantor paid the lender the $700,000, and then sought to recover that sum from the debtor pursuant to an indemnity agreement. Considering these circumstances, the district court found that the guarantor’s action to recover under the indemnity agreement was, in substance, an action seeking a deficiency judgment. However, that conclusion resulted from the court’s concerns that the side dealings between the lender and the guarantor constituted a deliberate subterfuge of the confirmation statute. Those concerns are not present in the instant case, and Redman Indus. is thus factually distinguishable on that basis.

3. Commonwealth paid Meritor a sum of $18,080.97 in satisfaction of the latter’s claim under the mortgage insurance policy. The appellants assert that a material issue of fact exists as to the actual or appropriate amount of the claim, and we agree.

The record contains a certificate of insurance and a claim for loss form, but no copy of the actual insurance policy. The investor loan indemnity agreement executed by Commonwealth and the appellants, however, indicates that the policy would protect the lender “against loss or a portion thereof” by reason of the appellants’ default on the loan. In support of its position that its action against the appellants is not an action seeking a deficiency judgment, Commonwealth emphasized that its calculation of the amount of the claim paid to Meritor did not consider the amount brought by the property at the foreclosure sale. That, in fact, appears to have been the case.

The certificate of insurance indicates that the policy would carry a 20 percent coverage of claim, and in its claim for loss form Commonwealth determined that the lender’s claim totaled $75,005.97 (representing the balance of principal and interest due, attorney fees, and expenses associated with maintaining the property). The affidavit of the claims counsel for Commonwealth further indicates that the total claim under the policy was $75,005.97, and that Commonwealth paid Meritor approximately 20 percent of that amount, or $18,080.97.

Meritor purchased the property at the foreclosure sale for $73,681.41, and that figure apparently played no part in Commonwealth’s determination of the claim due under the mortgage insurance policy. Assuming that, as found by Commonwealth, the appellants’ total indebtedness to the lender after the default was $75,005.97, Commonwealth’s formula for determining the claim, which resulted in its payment of $18,080.97 to Meritor, goes beyond guaranteeing “against loss or a portion thereof,” as specified in the loan indemnity agreement. In this regard, it would appear that Commonwealth’s determination of its liability under the insurance policy would have resulted in payment of the same amount to the lender, even if the lender had sustained no loss at the foreclosure sale, e.g., if the property had been sold for an amount equal to or in excess of the indebtedness. Such a result obviously extends the liability agreed to by the appellants in the indemnity agreement.

We also note that Commonwealth’s own explanation of how it determined its liability under the insurance policy to be $18,080.97 is inconsistent. As discussed above, the claims counsel for Commonwealth stated that Commonwealth paid Meritor $18,080.97, which represented approximately 20 percent of the total claim of $75,005.97. However, that approximation is a very inaccurate one, inasmuch as 20 percent of $75,005.97 is a total of $15,001.19. (It appears that the $18,080.97 figure was determined by taking 75 percent of the original purchase price of the property ($75,900), or $56,925, and subtracting that amount from the total claim of $75,005.97, but that calculation is not specified in any document in the record and is contrary to the explanation by Commonwealth’s claims counsel of how the amount of payment was determined.)

4. For the foregoing reasons, the trial court properly granted summary judgment for Commonwealth and against the appellants on the issues regarding whether Commonwealth could assert its claim under the loan indemnity agreement. However, the inconsistencies in the evidence regarding the actual amount of the claim presented material issues of fact, and summary adjudication of that issue was inappropriate.

Judgment affirmed in part, reversed in part. Pope, C. J., McMurray, P. J., Birdsong, P. J., Carley, P. J., Beasley, Andrews and Johnson, JJ., concur. Cooper, J., concurs in part, dissents in part.

Cooper, Judge,

concurring in part, dissenting in part.

I agree with the majority’s conclusion in Division 3 that a question of fact exists as to the amount of the claim asserted by Commonwealth. However, I dissent because I believe that the loan indemnity agreement violates the public policy encompassed in OCGA § 44-14-161, which requires that an order of confirmation be obtained before the lender may seek a deficiency judgment against the debtors. “ ‘The strongest ground of public policy which occurs for the enforcement of statutes requiring confirmation in foreclosure proceedings is to protect the debtor from being subjected to double payment in cases where the property was purchased for a sum less than its market value.’ ” First Nat. Bank & Trust Co. v. Kunes, 128 Ga. App. 565, 566 (197 SE2d 446) (1973). Although the transaction between Commonwealth and appellants was not in the form of a deficiency action, in the interest of justice, it is necessary to look beyond the form of the agreement and examine its substance. See Redman Indus. v. Tower Properties, 517 FSupp. 144 (N. D. Ga. 1981). I cannot conclude, as does the majority, that the indemnity agreement is an “independent contract” which “in no way vitiates the protection the appellants enjoy from the lender seeking a deficiency judgment.” The execution of the indemnity agreement was a prerequisite to the issuance of mortgage insurance by Commonwealth to the lender from whom appellants sought a loan. I acknowledge the lender’s right to insure itself against possible loss resulting from a borrower’s default. However, when such insurance is intimately linked to an agreement requiring the debtor to indemnify the insurer for amounts the insurer paid to the insured, the substance and effect of the transaction is to circumvent the protection afforded by OCGA § 44-14-161. I cannot uphold an agreement which so blatantly attempts to deny appellants the protections which the General Assembly found necessary to afford them. Therefore, I must respectfully dissent.

Decided February 22, 1993.

Davidson, Hopkins & Booth, Joseph H. Booth, for appellants.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Wade G. Anderson, for appellee.


source: Caselaw Access Project

author: Carley, Presiding Judge.

license: Public Domain

text:
    A92A2281.
    ERO INDUSTRIES et al. v. PHILLIPS. SEW-RITE MANUFACTURING COMPANY et al. v. PHILLIPS.
    A92A2408.
    (428 SE2d 396)
   Carley, Presiding Judge.

The relevant facts in these workers’ compensation cases are as follows: In March 1990, appellee-claimant injured her left wrist while employed by appellant-employer Sew-Rite Manufacturing, but she lost no time from work. In November 1990, she again injured her left wrist while employed by appellant-employer Ero Industries, but again she lost no time from work. In March 1991, she was involved in a non-employment-related vehicular mishap and was treated for injuries to her back, left knee and right wrist. After this mishap, she did lose time from work. A hearing was held to determine appellee’s entitlement to workers’ compensation benefits. The ALJ awarded medical benefits for the injury to appellee’s left wrist, but awarded no income benefits based upon the finding that “it has [not] been shown that she is unable to perform the regular duties of her work due to problems with her left wrist at this time.” Upon de novo review, the Full Board adopted the ALJ’s award in all material respects. On appeal to the superior court, however, the case was remanded for a clarification of appellants’ respective liabilities for appellee’s medical benefits and a redetermination of appellee’s entitlement to income benefits. From the superior court’s order, appellants filed separate applications for a discretionary appeal. The applications were granted and the resulting two appeals are hereby consolidated for appellate disposition in this single opinion.

1. The award of the ALJ, as adopted by the Full Board, found that appellee had suffered a compensable injury to her left wrist, which injury authorized medical benefits but not income benefits. This finding must be affirmed if there is “any evidence” to support it. At one point during the hearing, appellee testified that, at a date commencing after her vehicular mishap, she became unable to work because of the pain in her wrist, but she did not specify whether that pain was in her left wrist, which she had injured during her employment, or her right wrist, which she had injured in the vehicular mishap. She did, however, subsequently testify that she had been on sick leave “solely because of the injuries [she] received” in the vehicular mishap. (Emphasis supplied.) Appellee’s medical records consistently note that she was not working because of “her back and right wrist problems.” (Emphasis supplied.) There is some evidence that appellee’s disability was attributable to the non-compensable injuries she received in the vehicular mishap, rather than the compensable injury to her left wrist. It follows that the superior court erred in remanding the case for a redetermination of appellee’s entitlement to income benefits.

“ ‘ “The [B]oard is the sole judge of the evidence, of the credibility of the witnesses, and as to what evidence it will credit as the basis for an award. (Cits.)” (Cit.)’ [Cit.] The evidence did not demand a finding that appellee was disabled as the result of her employment-related injur [ies]. Tn order to render any finding of fact demanded as a matter of law, not only must there be no controversy in the evidence material to the issue involved, but the implications and inferences which logically and properly arise from the evidence must necessarily lead to only the one conclusion.’ [Cit.] . . . ‘Neither the superior court nor this court is authorized to reverse an award because in its opinion the prevailing party did not carry the burden of proving a fact necessary to sustain its position if such fact is nevertheless supported by some competent evidence.’ [Cit.]” Cobb General Hosp. v. Burrell, 174 Ga. App. 631-632 (331 SE2d 23) (1985). “Given [the authorized] determination [that appellee was entitled to no income benefits], there was no reason for the ALJ or the Board[, on remand,] to reach the issue[s] [of the propriety or amount of income benefits due appellee]. Accordingly, the superior court erred [to the extent that it remanded] this case [for a determination of such issues].” Sunbelt Specialties v. Keith, 201 Ga. App. 167, 168 (2) (410 SE2d 364) (1991).

Decided February 22, 1993.

Walker & Sweat, Bruce M. Walker, for appellants (case no. A92A2281).

Sligh, Presmanes & Jackson, Gregory T. Presmanes, for appellants (case no. A92A2408).

M. Dean Hall, for appellee.

2. No issue is presented for resolution as to the superior court’s remand for clarification of appellants’ respective liabilities for appellee’s medical benefits. Accordingly, that portion of the superior court’s order is affirmed.

Judgment affirmed in part and reversed in part. Pope, C. J., and Johnson, J., concur.


author: Beasley, Judge.

text:
    A92A2419.
    CROLLEY v. HAYGOOD CONTRACTING, INC.
    (429 SE2d 93)
   Beasley, Judge.

Haygood Contracting, Inc. sued Cherokee Falls Investments, Inc. (CFI) and William Crolley for sums allegedly owed on a construction contract. Partial summary judgment was granted to Haygood against both Crolley and CFI. In Crolley v. Haygood Contracting, 201 Ga. App. 700 (411 SE2d 907) (1991) (Crolley I), Haygood’s right to partial summary judgment was affirmed, but not against both defendants. The judgment was vacated and the case was remanded with direction that partial summary judgment be entered against whichever defendant Haygood elected. He chose Crolley, and the trial court entered an order directing the entry of final judgment against Crolley, expressly determining that there was no just reason for delay. The order also awarded interest on the judgment from January 2, 1991. Crolley enumerates as error both the entry of final judgment against him and the award of interest.

1. Crolley contends it was error for the trial court to enter a final judgment subject to execution because a pending counterclaim remained for trial, citing Mock v. Canterbury Realty Co,, 152 Ga. App. 872 (264 SE2d 489) (1980). Mock held that it is not error to grant partial summary judgment for the purpose of narrowing the issues for trial despite the pendency of an unresolved counterclaim, but that final judgment may not be entered until disposition of the counterclaim. Id. at 878-879; see Crolley I at 701-702 (2). The rationale is that if the counterclaimant is awarded judgment on the counterclaim, that judgment may be set off against the judgment in the main case. Delaying enforcement of the judgment on the main claim has “ ‘the beneficial, economical and overall just effect of dispensing with the requirement that [the plaintiff] again demonstrate (its) right to summary judgment on the [main claim], while protecting [the counter-claimant] from enforcement of a money judgment until such time as the merits of its counterclaim may be established.’ [Cit.]” Mock, supra at 879.

Haygood’s election to seek judgment against Crolley rather than CFI renders this case distinguishable factually from Mock and Crolley I, because Crolley is not the counterclaimant here. Mock indicates that the defendants in that case filed a joint answer and counterclaim, whereas here the only counterclaim was filed by CFI. Future resolution of the counterclaim will have no effect on a judgment against Crolley. The rule in Mock does not apply here.

We find no merit in Crolley’s argument that he should be entitled to “use” CFI’s counterclaim because he is an officer and director of CFI. “ ‘An inherent purpose of incorporation is insulation from liability. A corporation possesses a legal existence separate and apart from that of its officers and shareholders so that the operation of a corporate business does not render officers and shareholders personally liable for corporate acts. (Cit.)’ [Cit.]” Commonwealth Fin. Corp. v. Sherrill, 197 Ga. App. 403 (1) (398 SE2d 438) (1990). Nothing in the record suggests that the corporate form was disregarded, and Crolley’s individual liability, as determined in Crolley I, was premised upon agency principles rather than on piercing the corporate veil. Crolley I, supra at 702-703 (3). Since it is undisputed that Crolley and CFI are separate and distinct entities, and Crolley filed no counterclaim, the trial court properly entered final judgment against him on remand.

2. Crolley challenges the award of postjudgment interest from January 2, 1991, because no judgment was entered until the entry of the final judgment against him on remand, which occurred in May 1992. His argument has two components: that the first partial summary judgment was not a “judgment” within the meaning of OCGA § 7-4-12; and that it was not “entered.”

Decided February 22, 1993.

Bovis, Kyle & Burch, C. Sam Thomas, Timothy J. Burson, for appellant.

Roach, Hasty & Geiger, Thomas A. Roach, for appellee.

(a) OCGA § 9-11-54 (a) defines the term “judgment” as including “a decree and any order from which an appeal lies.” Given the specific provision for appeal in OCGA § 9-11-56 (h), it is clear that this includes an order for partial summary judgment.

(b) OCGA § 7-4-12 provides for interest on all “judgments.” OCGA § 9-11-58 (b) states: “The filing with the clerk of a judgment, signed by the judge, constitutes the entry of the judgment, and, unless the court otherwise directs, no judgment shall be effective for any purpose until the entry of the same. . . .” Entry on the docket of the clerk of court is not necessary for entry of judgment. See Storch v. Hayes Microcomputer Products, 181 Ga. App. 627 (353 SE2d 350) (1987). Contrary to Crolley’s argument, the original summary judgment was “entered,” albeit on January 7, 1991, the date of filing, rather than on January 2, 1991, the date of signing. Nevertheless, we agree with Crolley that the award of postjudgment interest from the date of entry of the original partial summary judgment was erroneous, for a different reason.

Although the original grant of partial summary judgment would have supported postjudgment interest, in Crolley I this court vacated that judgment. “Vacate” means “[t]o annul; to set aside; to cancel or rescind; to render an act void; as, to vacate an entry of record, or a judgment.” Black’s Law Dictionary (4th ed., rev., 1968). Thus, rather than changing nothing other than “dismissing” the judgment against CFI, as argued by Haygood, our decision in Crolley I totally nullified the original grant of summary judgment, eliminating as well any “judgment” on which postjudgment interest could be awarded. The only judgment now existing is the judgment entered on May 11,1992, which automatically bears interest from that date. OCGA § 7-4-12.

Accordingly, that portion of the judgment entitling Haygood to postjudgment interest from January 2, 1991 must be reversed.

Judgment affirmed in part and reversed in part. Birdsong, P. J., and Andrews, J., concur.


text:
    A92A2427.
    THURMOND et al. v. RICHMOND COUNTY BOARD OF EDUCATION et al.
    (428 SE2d 392)
   Beasley, Judge.

On November 4, 1991, Thurmond, a six-year-old child, and her mother individually and as the child’s natural parent and next friend, sued the Richmond County Board of Education; Lamback, the principal of an elementary school attended by the child; Jordan, the child’s first-grade homeroom teacher; and Thomas, a physical education teacher employed by the school. Plaintiffs sought to hold the defendants liable for a sexual battery allegedly committed by Thomas upon the child in the girls’ rest room at school.

Plaintiffs voluntarily dismissed Lamback, the principal, after motions for summary judgment were filed by him, the board, and Jordan. Plaintiffs appeal the trial court’s grant of Jordan’s motion for summary judgment, sought under general tort principles, as well as its grant of the board’s motion for summary judgment, sought also on grounds of sovereign immunity which had not been waived through liability insurance. Although Thomas was acquitted of charges in a criminal trial (the transcript of which has been included in this record), that adjudication is not binding in this action.

Jordan allowed the child to go to the rest room unattended. According to affidavits executed by school teachers and officials, it is not now nor has it ever been school policy at this or other elementary schools to require students to be escorted by a teacher to the rest room, and, at this school, there were no prior molestations or similar incidents.

The complaint as amended makes no allegations specifically against the board. Plaintiffs allege that Jordan wilfully, wantonly, and negligently permitted the child to leave her class unescorted and go to the girls’ rest room. Prior to dismissing him as a party defendant, plaintiffs alleged that Lamback was negligent in hiring Thomas in that he knew or should have known that Thomas was an unfit teacher and, because of his previous conduct at Warren County High School, had a proclivity or propensity to commit a sexual battery upon the child.

There is no evidence that Thomas committed any prior criminal or sexual offenses or exhibited any behavior evincing a propensity to commit such offenses. To the contrary, a school official’s affidavit stated that pursuant to school policy the school board screened Thomas through the Georgia Criminal Investigation Center (GCIC) prior to hiring him, and the GCIC report on Thomas showed no criminal record. The affidavit of the principal of Warren County High School, where Thomas worked prior to obtaining employment with this elementary school, showed that he had given Thomas a poor recommendation for reasons having nothing to do with moral turpitude or sexual misconduct.

The board and Jordan moved for summary judgment on January 24, 1992. A hearing on these motions was scheduled for February 28, 1992, and on February 21 plaintiffs sought a continuance on grounds that they had not completed discovery; that six months had not elapsed since the filing of the answers by the board, Lamback, and Jordan on December 6, 1991, and by Thomas on December 13; and that they therefore had until June 13, 1992, to complete discovery under USCR 5:

“In order for a party to utilize the court’s compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay and within 6 months after the filing of the answer. At any time, the court, in its discretion, may extend, reopen or shorten the time to utilize the court’s compulsory process to compel discovery.”

In the motion, plaintiffs stated they had not had the opportunity to take the depositions of Augusta Police Department officers who investigated this incident, two elementary school students familiar with Thomas’ conduct, and two other assistant principals employed by the county board of education.

The trial court denied the continuance at the hearing, which was unreported, but gave plaintiffs until March 16 to file responsive briefs and any other materials.

On March 16, plaintiffs filed an affidavit executed by the child in which she stated that no female student was to go to the rest room without being escorted by a teacher, that prior to the incident in this case Lamback had come into her classroom and told Jordan that if she did not start escorting girls to the rest room he was going to fire her, and that Jordan thereafter only went to the rest room with one girl or with the whole class before and after lunch.

By letter dated March 20, the trial court notified the parties that defendants’ motions for summary judgment were granted, and counsel was asked to prepare the appropriate orders reflecting this decision.

Plaintiffs amended their complaint on March 25, to include a claim against all defendants under 42 USC § 1983, on grounds that they denied the child due process and equal protection rights.

On March 26, the order granting defendants’ motions was filed as to the complaint as amended, including the amendment of March 25.

1. Denial of the motion for continuance of the summary judgment hearing was not error. OCGA § 9-11-56 (b) permits the defendants to file such a motion “at any time.” If a hearing is desired, at least 30 days from service of the motion must elapse before a hearing can be held, to give respondent time to file opposing evidence. These time considerations were honored in this case.

Rule 5 of the USCR does not conflict so as to prevent ruling on a motion for summary judgment until six months have passed, if the case is otherwise ripe for summary judgment. The rule governs the conduct of court-monitored discovery. It establishes a maximum six-month discovery period, measured from the filing of the answer. Gray v. Whisenaut, 258 Ga. 242 (368 SE2d 115) (1988). This expedites the disposition of cases, serving the constitutional mandate for rules which “provide for the speedy, efficient, and inexpensive resolution of disputes.” 1983 Ga. Const., Art. VI, Sec. IX, Par. I. The court may, in the words of the Rule, change the time “in its discretion.” Since it may “shorten” the time, discovery-seeking parties have no unalterable right to a six-month period.

In this case, the court was authorized to consider the potential effect on the motion for summary judgment of waiting until mid-June. Considering the nature of the complaint, the basis for the motion for summary judgment, the evidence of record, and the intended discovery still sought by plaintiffs, the refusal to go beyond March 16 for completion of the record for summary judgment purposes was not error. Plaintiffs did not demonstrate a need which, if the entire six months had been allowed, might have yielded a genuine issue of material fact so as to defeat summary judgment.

2. The trial court did not err in granting the board’s motion for summary judgment on the ground of sovereign immunity.

“There is no question of governmental immunity of the board of education but there can be an issue as to whether such immunity extends to an agent of the board carrying out its duties in exercising custody and control over the school premises. [Cit.]” Sisson v. Douglas County School District, 181 Ga. App. 77, 78 (1) (351 SE2d 272) (1986).

Moreover, Cook v. Colquitt County Board of Education, 261 Ga. 841 (412 SE2d 828) (1992), held that a board of education is not a corporate body with the capacity to sue or be sued, that the only exception is where the legislature creates a school board by an act which gives the board such capacity, and that this rule was not changed by the provision in the 1983 Georgia Constitution that the defense of sovereign immunity is waived as to those actions for the recovery of damages for any claim against any department or agency of the state for which liability insurance protection for such claim has been provided.

The board sought summary judgment on grounds that it had immunity and that liability insurance for plaintiffs’ claim had not been provided by the board, as stated in response to plaintiffs’ request for production of documents and in affidavits. It was entitled to summary judgment on these grounds. It did not seek summary judgment on the ground that it lacked the capacity to be sued.

3. Even though the governing body of a public agency such as a school board has sovereign immunity under state law, a § 1983 claim may be asserted against it. Such claim must be based upon acts which are in implementation of an intentional policy, adopted or ratified by the governing body, which acts work deprivation of a constitutional right. What is required to be proved, directly or circumstantially, is that a governing body has worked constitutional deprivation of a citizen pursuant to an impermissible or corrupt policy which is intentional and deliberate. Holloway v. Rogers, 181 Ga. App. 11, 13 (2) (351 SE2d 240) (1986).

There are no allegations in plaintiffs’ complaint that the board engaged in such action. Compare Franklin v. Gwinnett County Public Schools, 200 Ga. App. 20, 24 (1) (407 SE2d 78) (1991); Stoneking v. Bradford Area School District, 667 FSupp. 1088 (W. D. Pa. 1987).

We note that had the order granting summary judgment been entered before the amendment was filed to add the § 1983 claim, it would have been too late. See Summer-Minter & Assoc. v. Giordano, 231 Ga. 601 (203 SE2d 173) (1974).

4. The trial court did not err in granting Jordan’s motion for summary judgment under general tort principles.

Under such, a defendant is not liable in tort to a plaintiff for a negligent act when a superseding criminal act by a third party is the cause of plaintiff’s injuries, unless the defendant had reasonable grounds for apprehending that such criminal act would be committed. Tolbert v. Tanner, 180 Ga. App. 441, 444 (2b) (349 SE2d 463) (1986); see generally Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716) (1985). Accordingly, Doe v. Village of St. Joseph, 202 Ga. App. 614, 616 (2) (415 SE2d 56) (1992), held that an employer may not be held liable for negligence in hiring an employee who has committed a crime upon another, unless the employer knew or should have known of the employee’s criminal propensities.

As previously stated, there is no evidence of any prior behavior by Thomas exhibiting such criminal propensities, and plaintiffs do not even allege that Jordan had knowledge of the propensities claimed to exist.

In order for plaintiffs to hold Jordan liable in tort for a sexual battery upon the child by Thomas, they would thus have to show that Thomas had manifested such propensities, that Jordan had knowledge of them, that Jordan’s allowing the child to go to the rest room unescorted was at least a negligent breach of a duty of care owed to the child, and that a proximate causal relationship existed between Jordan’s inaction and Thomas’ act. If any of the parties referred to in plaintiffs’ March 26 affidavit could have provided information that would enable plaintiffs to make a showing sufficient in these regards to withstand these defendants’ motions for summary judgment, it was incumbent on plaintiffs to have at least obtained an affidavit from such party so stating. The affidavit of the child was insufficient to do so.

Decided February 22, 1993.

Watkins & Watkins, John D. Watkins, for appellants.

Hawk, Hawk & Lyons, Jacque D. Hawk, Fletcher, Harley & Fletcher, Leonard 0. Fletcher, Jr., Dye, Tucker, Everitt, Wheale & Long, Duncan D. Wheale, for appellees.

Given the allegations of the amended complaint, the other pleadings, and the evidence of record, we cannot say that the trial court erred in granting the board’s and Jordan’s motions for summary judgment.

Judgment affirmed. Birdsong, P. J., and Andrews, J., concur.

       The mother had executed an affidavit on February 20 in support of the motion, stating that due to the employment schedules of proposed affiants (undescribed), she did not have sufficient time in which to obtain affidavits and depositions so as to present facts essential to justify her opposition to defendants’ motions for summary judgment.


author: McMurray, Presiding Judge.

text:
    A92A1776.
    RHODES v. AMWEST SURETY INSURANCE COMPANY.
    (428 SE2d 581)
   McMurray, Presiding Judge.

Amwest Surety Insurance Company (“Amwest”) filed an action against Lynn A. Rhodes and others (defendants), alleging defendants are indemnitors of surety bonds issued by Amwest to Quality General Contractors, Inc. (“Quality”). The case was tried before a jury and a $1,241,047.19 verdict was entered in favor of Amwest. Rhodes filed this appeal, pro se, after the denial of his motion for new trial. Held:

1. Rhodes asserts the general grounds in his first three enumerations, arguing that a computer-generated summary of claims and expenses paid by Amwest under the surety bonds was inadmissible because the summary was not supported by documents accessible to the court and the parties. The summary’s admission into evidence is also raised in Rhodes’ fourth enumeration.

“[S]ummaries of voluminous business records are admissible as long as the original records are accessible to the court and the parties. . . . Tyner v. Sheriff, 164 Ga. App. 360 (2) (297 SE2d 114) (1982).” Lawhorn v. State, 200 Ga. App. 451, 455 (4), 456 (408 SE2d 425). In the case sub judice, a computer-generated summary was admitted into evidence showing that Amwest paid $1,241,047.19 in claims and expenses under the surety bonds. Further, undisputed testimony reveals that most of the records supporting the summary were not readily accessible to the court and the parties. See Lawhorn v. State, supra. However, there was no error in admitting the summary as the auditor who prepared the document testified regarding its identity and contents. Miller v. State, 260 Ga. 191, 193 (3) (391 SE2d 642). Specifically, an auditor charged with investigating and paying claims and expenses under the surety bonds testified that she investigated all claims under the surety bonds; that the costs and expenses listed on the computer-generated summary accurately reflect Am-west’s liability under the surety bonds and that the total amount paid by Amwest under the surety bonds through September 30, 1991, is $1,241,047.19. This testimony is sufficient to authorize the jury’s verdict. Don Howard’s Music Mart v. Southern Bell Tel. &c. Co., 154 Ga. App. 648 (2), 649 (269 SE2d 506).

2. Unenumerated issues improperly raised in argument offered in support of Rhodes’ first three enumerations are not considered. City of College Park v. Ga. Power Co., 188 Ga. App. 223 (372 SE2d 493); Pier 1 Imports v. Chatham County Bd. of Tax Assessors, 199 Ga. App. 294, 296 (2) (404 SE2d 637).

3. In his fifth enumeration, Rhodes contends there was no evidence to sustain the jury’s verdict as to expenses paid for attorney fees by Amwest under the surety bonds. This contention is without merit. The auditor charged with investigating and paying claims and expenses under the surety bonds testified that expenses listed on the computer-generated summary accurately reflect Amwest’s liability under the surety bonds. The expenses listed by the auditor on the summary sheet include attorney fees. Don Howard’s Music Mart v. Southern Bell Tel. &c. Co., supra.

4. In his sixth enumeration, Rhodes contends the trial court prejudiced his case by stating to the jury “that this case was a simple one.” However, there is no reference in the enumeration or brief as to where in the record or transcript evidence supporting this contention can be found. Consequently, the issue is not preserved for appeal. Rule 15 (a) (1) of the Rules of the Court of Appeals; Dimmick v. Pullen, 120 Ga. App. 743, 744 (2) (172 SE2d 196).

5. Rhodes’ seventh and tenth enumerations are not supported by argument or citation of authority. Consequently, these enumerations are deemed abandoned pursuant to Rule 15 (c) (2) of the Rules of the Court of Appeals. Roth v. Wu, 199 Ga. App. 665, 666 (2) (405 SE2d 741).

6. In his eighth enumeration, Rhodes contends Amwest is not entitled to attorney fees because of a failure to comply with the written notice provision of OCGA § 13-1-11 (a) (3). This contention is without merit.

Decided February 10, 1993

Reconsideration denied February 23, 1993

Lynn Rhodes, pro se.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Donna C. Sloan, for appellee.

Amwest’s evidence of attorney fees relates to expenses incurred as a result of claims under the surety bonds, not attorney fees relating to enforcement of the indemnity agreement. Consequently, Amwest’s claim for attorney fees does not fall within the notice requirements of OCGA § 13-1-11. United Rentals Systems v. Safeco Ins. Co., 156 Ga. App. 63, 67 (5) (273 SE2d 868). It follows that the trial court did not err in allowing the jury’s consideration of evidence relating to expenses incurred for legal services in managing claims under the surety bonds.

7. In his ninth enumeration, Rhodes contends the trial court “erred by failing to allow into the events evidence that the Bonds were backed by Federal Bond monies and should come under the Federal ‘Miller Act; 40 U.S.C.A. §§ 270-270f[.]”

A review of the portion of the trial transcript supporting this enumeration reveals that the trial court refused to allow evidence that the surety bonds are “backed by the SBA.” The trial court excluded the evidence, finding it irrelevant to issues relating to defendants’ liability under the indemnity agreement.

“ ‘Evidence is relevant if it relates to the questions being tried by the jury, either directly or indirectly, tends to illustrate or explain the issue, or aids the jury in arriving at the truth.’ (Citations and punctuation omitted.) Ponder v. State, 194 Ga. App. 446, 449 (7) (390 SE2d 869) (1990).” Yelverton v. State, 199 Ga. App. 41, 42 (1) (403 SE2d 816). In the case sub judice, Rhodes fails to point out how evidence that the surety bonds are “backed by the SBA” would have aided the jury in resolving issues relating to defendant’s liability under the indemnity agreement. Further, we fail to see how such evidence, either directly or indirectly, relates to the questions being tried by the jury. Consequently, the trial court did not err in excluding the evidence.

8. Rhodes’ final enumeration presents nothing for review.

Judgment affirmed. Cooper and Blackburn, JJ., concur.


text:
    A92A1845.
    McKENNA v. GRAY.
    (428 SE2d 370)
   Beasley, Judge.

The issue in this appeal is whether the trial court erred by finding in contempt Terry McKenna, executor of the estate of James H. Gray, Sr., and by refusing to find the decedent’s widow, Cleair Gray, in contempt. Mrs. Gray filed the contempt action against McKenna, alleging that the estate had failed to comply with certain obligations under a final judgment and decree. McKenna answered and counterclaimed against Mrs. Gray, alleging that her refusal to comply with other terms rendered her in contempt.

James H. Gray, Sr., died testate in September 1986, leaving a widow and three adult children by a prior marriage. Under the terms of his will, in addition to other bequests and devises, a trust was to be established for the benefit of his widow, who was to receive the income for life. Mrs. Gray brought an action against the estate claiming that the will failed to reflect an oral contract made during the decedent’s lifetime, in which he had promised to leave her one-third of his shares in a business in which he was the majority shareholder in return for her promise not to divorce him. The parties to that litigation entered into a settlement agreement, which was incorporated into a final decree and judgment entered in March of 1988, and a mutual release was executed contemporaneously.

Under the terms of the settlement agreement, Mrs. Gray was to receive certain outright bequests and devises which were complied with and are not in issue in this appeal. Mrs. Gray was also awarded a judgment against the estate in the amount of $10,000 per month for life in lieu of a lump sum legacy. The agreement provided that “[t]he [e] state . . . may discharge this obligation by making the monthly payments provided for herein or by depositing with a bank or trust company qualified to do business within the state of Georgia security adequate to guarantee such monthly payments. Upon the deposit by the [estate] of such security, counsel of record for CLEAIR GRAY shall execute a satisfaction of judgment in a form acceptable by the Clerk of this Court to evidence the fact that the obligation of this sub-paragraph of this Judgment has been satisfied.” The mutual release recited that “[t]he parties hereby agree that the [e]state .. . may satisfy such obligation by purchasing an annuity with a life insurance company having a rating of not less that ‘A’ according to the A. M. Best rating system; such annuity to guarantee the monthly payments to CLEAIR GRAY hereinabove provided.”

After entry of the fined judgment, McKenna purchased a single premium immediate annuity from Executive Life Insurance Company calculated to pay an amount certain ($10,000) each month for the life of the annuitant, Mrs. Gray, or for 20 years, whichever is later. After the $10,000 monthly payments had begun, the executor requested that Mrs. Gray execute a satisfaction of judgment. Mrs. Gray’s attorneys refused on the ground that as currently structured, the annuity was not adequate to guarantee her monthly payments of $10,000, as required by the settlement agreement and mutual release, because federal income tax would be owed on the income component of the payments, and if the estate were to be fully distributed and closed, the Internal Revenue Service would have no choice but to collect those taxes from Mrs. Gray, thereby reducing the amount available to her. Although correspondence was exchanged between the parties’ attorneys, no explicit agreement was ever reached regarding the tax liability, and satisfaction of judgment was never executed. Mrs. Gray continued to receive the $10,000 monthly payments, and each year the estate paid the income tax due on the income component of the annuity payments. In April 1991, because of unforeseen financial difficulties, Executive Life reduced the monthly annuity payment to $7,000, whereupon Mrs. Gray called upon the estate to pay the $3,000 monthly difference. The estate refused, and this action ensued.

The trial court was not required to, and did not, make findings of fact. See PBJ Dev. Co. v. Holben, 259 Ga. 594 (1) (385 SE2d 658) (1989). However, it found that McKenna was in contempt of the final decree and judgment and required that the estate pay Mrs. Gray arrearages and the net amount of $10,000 per month in the future. Implicit in this order is a construction of the decree adopting the position urged by Mrs. Gray, i.e., that she was guaranteed receipt of the full $10,000 each month; that the annuity purchased was inadequate to fund this entitlement; that she never accepted the annuity as satisfaction of the judgment; and that consequently the estate had violated the terms of the final judgment.

McKenna contends that no provision regarding the tax liability was included in the agreement incorporated into the decree, and therefore, by purchasing from a company meeting the requirements set forth in the mutual release an annuity calculated to pay $10,000 a month for Mrs. Gray’s life, the estate discharged its obligations. He argues that by construing the decree as obligating the estate to provide a monthly net payment of $10,000 the trial court essentially ordered it to pay the income tax, thereby adding to the decree a term not appearing therein and not contemplated or intended by the parties. This, of course, is prohibited. See Bettis v. City of Atlanta Civil Svc. Bd., 249 Ga. 398, 399 (291 SE2d 507) (1982).

Resolution of this appeal thus depends entirely upon the construction placed on the applicable portions of the final judgment and mutual release. In a contempt case the trial court has wide discretion to determine whether its orders have been violated, and its findings will not be disturbed by a reviewing court absent a gross abuse of discretion. Davis v. Davis, 250 Ga. 206, 207 (296 SE2d 722) (1982); Cook v. Thomas, 175 Ga. App. 836 (334 SE2d 727) (1985). Thus, if there is any evidence to support the trial court’s ruling, it must be affirmed. Crowder v. Crowder, 236 Ga. 612 (225 SE2d 16) (1976).

The settlement agreement is a contract, the construction of which is a matter of law for the court. OCGA § 13-2-1. No construction is required, or allowed, if the language of the contract itself is unambiguous and capable of only one meaning. Crooks v. Crim, 159 Ga. App. 745, 748 (285 SE2d 84) (1981). A contract is not ambiguous, even if difficult to construe, unless it remains so after application of the pertinent rules of construction. Among those rules are that if instruments are executed at the same time in the course of the same transaction, they should be read and construed together. Interstate Fire Ins. Co. v. Nat. Indem. Co., 157 Ga. App. 516, 518 (277 SE2d 802) (1981).

The settlement agreement incorporated into the final judgment and decree and the mutual release were executed at the same time and in the course of the same transaction, and must be read together. Moreover, contracts are to be construed against the party undertaking the obligation, OCGA § 13-2-2 (5), and against the drafter, see Promenade Assoc., Ltd. v. Finish Line, 194 Ga. App. 741, 742-743 (391 SE2d 714) (1990). In this case, the estate drafted the agreement and mutual release and undertook the obligation to pay $10,000 per month to Mrs. Gray.

Most importantly, the cardinal rule of contract interpretation, which takes priority over other rules, see Paul v. Paul, 235 Ga. 382, 384 (219 SE2d 736) (1975), is to ascertain and carry out as nearly as possible the intent of the parties. OCGA § 13-2-3.

The settlement agreement clearly provided that the estate was to pay Mrs. Gray $10,000 per month, and it was obviously the intent of the parties that Mrs. Gray have the use of the entire $10,000. The method of accomplishing this was left up to the estate. It could either hold the estate open, and pay Mrs. Gray the $10,000 from estate assets each month or, if it wished, it could deposit security “adequate to guarantee” that she would receive $10,000 per month. The mutual release particularizes certain requirements for any annuity to be used as security.

Contrary to McKenna’s contention, the fact that the insurance company from which the estate purchased the annuity met these requirements was not a conclusive, but only a necessary, condition in meeting the estate’s obligation to Mrs. Gray. The annuity was required, in addition, to be “adequate to guarantee” payment of $10,000 per month. If Mrs. Gray were required to pay taxes on the income portion of the monthly payments, she would not be “guaranteed” her full $10,000 per month. It would be contrary to the parties’ expressed intention to construe the release as authorizing the estate to purchase an annuity in an inadequate amount, so long as the company from which the annuity was purchased met the stated requirements.

Decided February 4, 1993

Reconsideration denied February 23, 1993

Heyman & Sizemore, William H. Major, William B. Brown, Robert B. Langstaff, for appellant.

Thomas W. Malone, Lawrence J. Pond, for appellee.

Moreover, Mrs. Gray communicated to McKenna her understanding of the agreement when she refused to execute the satisfaction of judgment absent an assurance that the estate would undertake liability for any taxes due. The estate’s subsequent silence and continued payment of the taxes operated as its acquiescence in that understanding. Salvatori Corp. v. Rubin, 159 Ga. App. 369, 373 (3) (283 SE2d 326) (1981). OCGA § 13-2-4 provides that “[t]he intention of the parties may differ among themselves. In such case, the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.”

We find correct, therefore, the trial court’s implicit findings that the estate was required to pay Mrs. Gray a full $10,000 each month and that the annuity was inadequate to guarantee that result. It follows that the trial court did not abuse its discretion by holding McKenna, as executor, in contempt of the final judgment and decree and by failing to hold Mrs. Gray in contempt of the decree for her refusal to execute a satisfaction of judgment.

Judgment affirmed. Birdsong, P. J., and Andrews, J., concur.

       The basis for their concern was the fact that a single premium annuity is purchased with a premium that is, from an actuarial point of view, smaller than the expected return. A portion of the return is therefore income, creating a tax liability.


author: Blackburn, Judge.

text:
    A92A1904.
    METZLER v. LOVE.
    (428 SE2d 384)
   Blackburn, Judge.

Lavenia Metzler, a Georgia resident, filed an action in the Superior Court of White County against Ruth Love, an Alabama resident, seeking compensatory and punitive damages for Love’s alleged wrongful disinterment of the remains of Richmond Jackson (Jack) Love, Metzler’s late husband and Love’s son, from a cemetery in White County, Georgia and removal of same to Piedmont, Alabama. Love filed an answer to the complaint and a special plea to the jurisdiction of the court, asserting that the complaint set out no facts to support a claim of jurisdiction under the Georgia Long Arm Statute (OCGA § 9-10-91). The trial court granted the special plea to the jurisdiction and dismissed the action. Metzler appeals.

Jack Love died in an automobile crash in 1958, at which time he had been married to appellant less than a year. His family deferred to appellant’s wish to bury him in Georgia. Appellee and her family made numerous visits to the gravesite over the years, but those visits became less frequent after appellee’s husband died and she grew older. No further contacts were made between the family and appellant and they were later told that she had died.

In 1989, Robbie Love Smith, Jack Love’s sister, began discussing with appellee the possibility of moving Jack’s remains to Alabama. Elaine Brock, Jack’s daughter by a previous marriage, was also consulted and approved of the idea. Smith made all the necessary arrangements from Alabama for obtaining the proper application papers. Smith signed the application. Appellee also signed Brock’s name on the application, which she has testified she did with Brock’s permission. Smith mailed the documents to Georgia and a permit for disinterment was issued in White County. Smith hired and paid someone to do the actual labor and went to White County to supervise the disinterment and transfer to Alabama.

“A nonresident defendant may be held liable for a tortious injury which occurred in this state only under two circumstances; either because the injury was due to a tortious act committed by the defendant within the state (OCGA § 9-10-91 (2)) or because the injury was caused by an act or omission of the defendant outside the state and defendant ‘regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state . ...’ OCGA § 9-10-91 (3).” McDonnell v. Roy E. Beatty & Assoc., 203 Ga. App. 807, 808 (1) (418 SE2d 95) (1992).

Appellant contends that OCGA § 9-10-91 (2) applies because appellee committed a tortious act within Georgia. Alternatively, appellant maintains that even though the disinterment application was completed in Alabama, her injuries and damages occurred in Georgia and thus appellee is subject to the jurisdiction of Georgia courts under OCGA § 9-10-91 (3). We do not agree.

While a single event may be sufficient to impose jurisdiction under certain circumstances, that event must be an act of the nonresident defendant in the forum having its impact within the territory of the forum. McDonnell, supra at 810; Shellenberger v. Tanner, 138 Ga. App. 399, 404 (227 SE2d 266) (1976). It is undisputed that appellee committed no act in Georgia. Even assuming, without deciding, that appellee’s placement of Brock’s signature on the application was a tortious act, that act occurred in Alabama, and the form was mailed to Georgia by Smith, not by appellee.

Decided February 9, 1993

Reconsideration denied February 23, 1993

Robert E. Richardson, for appellant.

Reuben M. Word, for appellee.

Nor can jurisdiction be obtained on the basis of an allegation of a conspiracy with Smith, who did perform acts in Georgia. In Coopers & Lybrand v. Cocklereece, 157 Ga. App. 240, 246 (276 SE2d 845) (1981), we held that an allegation that a nonresident who personally has conducted no activity in or with Georgia is a co-conspirator with one who committed tortious acts in Georgia and through the conspiracy is chargeable with the acts of co-conspirator within the state does not establish a “contact” with this forum in the absence of evidence of purposeful activity within Georgia by the nonresident. Thus, OCGA § 9-10-91 (2) does not apply.

Appellant likewise cannot obtain jurisdiction over appellee under OCGA § 9-10-91 (3) because appellee submitted an unrebutted affidavit showing that she never conducted or solicited business in Georgia, never derived substantial revenue from activities in Georgia, and never engaged in any other persistent course of conduct in Georgia. See Behar v. Aero Med Intl., 185 Ga. App. 845, 847-849 (2) (366 SE2d 223) (1988); see also McDonnell, supra at 808-811 (1). Accordingly, we hold the trial court did not err in dismissing appellant’s complaint against appellee.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


text:
    A92A2112.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. BUTLER.
    (428 SE2d 386)
   Carley, Presiding Judge.

The facts, insofar as they are relevant to the resolution of the instant appeal, are as follows: On February 16, 1990, appellee-plaintiff lost control of his automobile and was injured. He sought no-fault benefits under a policy of automobile insurance which had been issued to him by appellant-defendant. When appellant denied coverage, appellee filed suit. Appellant answered, asserting that appellee had failed to pay premiums and that the policy had been canceled on January 17, 1990. After discovery, cross-motions for summary judgment were filed as to the existence of coverage. The trial court granted summary judgment in favor of appellee, holding that the attempt to cancel appellee’s policy was ineffective because appellant had failed to give any notice thereof to the Department of Public Safety. It is from that order that appellant appeals.

Former OCGA § 33-34-11 (a), the applicable statute here, provided, in relevant part, that the insurer “shall notify the Department of Public Safety in the form specified by the department of [the] cancellation and the reason for such cancellation.” Nothing in this former statute specified that the giving of notice to the Department of Public Safety was a condition precedent to the insurer’s effectuation of a successful cancellation of an insured’s automobile policy. However, the Supreme Court construed the almost identical language of the predecessor statute to former OCGA § 33-34-11 (a) (1) as “requiring] insurers to notify the Department of Public Safety before cancellation of no-fault automobile coverage can be effective. ...” (Emphasis supplied.) Ga. Farm &c. Ins. Co. v. Phillips, 251 Ga. 244 (304 SE2d 725) (1983). See also Sentry Indem. Co. v. Sharif, 248 Ga. 395, 397 (282 SE2d 907) (1981); Pearce v. Southern Guar. Ins. Co., 246 Ga. 33 (268 SE2d 623) (1980). Thus, under the predecessor statute to former OCGA § 33-34-11 (a) (1), “notice to the Department [of Public Safety] was a condition precedent to an effective policy cancellation. . . (Emphasis supplied.) Walter v. Allstate Ins. Co., 206 Ga. App. 186, 187 (3) (424 SE2d 866) (1992). It follows that, under controlling Supreme Court authority, the almost identical language of former OCGA § 33-34-11 (a) (1), standing alone, must likewise be construed as establishing a condition precedent to an effective policy cancellation. “It is presumed that the legislature knows and enacts statutes with reference to the existing law, including the decisions of the courts, and when there is nothing in the enactment to indicate that the words used were to have a new and different meaning they should be construed as having the same meaning that was attached to them before the enactment. [Cits.]” Buckhead Drs.’ Bldg. v. Oxford Fin. Cos., 115 Ga. App. 52, 55 (153 SE2d 650) (1967). Compare Walter v. Allstate Ins. Co., supra (discussing former OCGA § 33-34-11 (a) (3), which, not having taken effect until April 11, 1990, has no applicability here).

There are, of course, factual differences between the instant case and the Supreme Court decisions wherein the predecessor statute to former OCGA § 33-34-11 (a) (1) was construed. However, those factual differences are not material to the legal issue of the proper construction of former OCGA § 33-34-11 (a) (1) and would not authorize a finding that notification to the Department of Public Safety was not a condition precedent to the effectiveness of appellant’s attempted cancellation of appellee’s policy in the instant case. If, as the Supreme Court has held, the language of former OCGA § 33-34-11 (a) (1) establishes notification as a condition precedent to the effectiveness of cancellation, such notification is, as a matter of contract law, a condition precedent to the effectiveness of cancellation regardless of the varying factual circumstances which might otherwise surround the attempt to cancel.

Decided February 10, 1993

Reconsideration denied February 23, 1993

Greer, Klosik & Daugherty, John F. Daugherty, Robert J. Mc-Cune, for appellant.

Nickerson & Tuszynski, David E. Tuszynski, for appellee.

It is undisputed that appellant gave no notification to the Department of Public Safety of its cancellation of appellee’s policy. Compare Dupree v. Ga. Mut. Ins. Co., 188 Ga. App. 857 (374 SE2d 546) (1988). It follows, therefore, that the cancellation never became effective. Accordingly, the trial court correctly granted partial summary judgment in favor of appellee as to the existence of coverage under the uncancelled policy.

Judgment affirmed. Pope, C. J., and Johnson, J., concur.


text:
    A92A2167.
    BRADY v. THE STATE.
    (428 SE2d 373)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of aggravated assault, making a terroristic threat, and possession of a firearm by a convicted felon. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant enumerates the general grounds.

“ ‘ “On appeal, our review is restricted to the legal sufficiency of the evidence, not the weight of the evidence.” [Cit.]’ [Cit.] . . . The jury was authorized to reject [appellant’s] testimony and accept the victim’s and the victim’s daughter’s [and son’s] testimony. [Cit.] Further, we have reviewed the transcript and find sufficient evidence to authorize the jury’s findings that [appellant] was guilty, beyond a reasonable doubt, of the offense of aggravated assault . . . and of the offense of [making] a terroristic threat [and of the offense of possession of a firearm by a convicted felon]. [Cits.]” Cook v. State, 198 Ga. App. 886, 887 (1) (403 SE2d 872) (1991).

2. “Appellant contends he was denied effective assistance of counsel at trial. Although appellant’s current attorney made [his] appearance of record before the expiration of the 30 day period for the filing of a motion for new trial under OCGA § 5-5-40 (a), no motion for new trial was filed. Nonetheless, . . . the lack of any opportunity for a hearing before the trial court requires that we remand this case for an evidentiary hearing on the issue of the asserted ineffectiveness of appellant’s trial counsel. ‘If the trial court finds appellant was denied effective assistance of counsel, he will be entitled to a new trial. If the court finds adversely to appellant, appellant’s right to appeal that order within thirty days is preserved.’ [Cit.]” Adams v. State, 196 Ga. App. 804, 806 (2) (397 SE2d 153) (1990).

Decided February 4, 1993

Reconsideration denied February 23, 1993.

Jeffrey R. Sliz, for appellant.

Timothy G. Madison, District Attorney, Jeffery G. Morrow, Assistant District Attorney, for appellee.

Judgments affirmed and case remanded with direction. Pope, C. J., and Johnson, J., concur.


author: Johnson, Judge.

text:
    A92A2170.
    DOLLAR CONCRETE CONSTRUCTION COMPANY v. WATSON et al.
    (428 SE2d 379)
   Johnson, Judge.

Billy Jay Watson and Allison Watson initiated an action against Jacinto Morales and Dollar Construction Company seeking to recover damages for injuries sustained when a vehicle driven by Morales struck Billy Jay Watson. Originally filed in DeKalb County on July 17, 1991, the suit named Dollar Construction Company as the sole defendant and identified Jack Reuben, whose address was in Louisville, Jefferson County, Georgia, as registered agent. It is not known if Jack Reuben was ever served with the suit, and the issue is of no consequence, as Dollar Construction Company was voluntarily dismissed from the action on August 14,1991. On the same date, without leave of court, the Watsons filed an amended complaint naming Dollar Concrete Construction Company as the sole party defendant, identifying Muriel Dollar as the registered agent, and asserting that the corporation had already been served in Fayette County. It is uncontested that Muriel Dollar was personally served on August 8, 1991 with a copy of the original complaint naming Dollar Construction Company as defendant, although the original return of service from Fayette County was not filed with the Clerk of the Court of DeKalb County.

In January 1992, Dollar Concrete Construction Company filed an answer and motion to dismiss the action alleging that Dollar Concrete Construction Company had been added as a party defendant without leave of court, that the court lacked personal jurisdiction over the corporation, and asserting that the action was now barred by the statute of limitation. The trial court denied the motion to dismiss. We granted Dollar Concrete Construction Company’s petition for interlocutory review.

In its single enumeration of error, Dollar Concrete Construction Company asserts that the trial court erred in denying its motion to dismiss. We agree. OCGA § 9-11-21 states: “Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just... .” (Emphasis supplied.) In Aircraft Radio Systems v. Von Schlegell, 168 Ga. App. 109, 111 (2) (308 SE2d 211) (1983) this court held: “In order for an additional party to be added to an existing suit by amendment pursuant to OCGA § 9-11-15 (Code Ann. § 81A-115), leave of court must first be sought and obtained pursuant to OCGA § 9-11-21 (Code Ann. § 81A-121). [Cits.]” (Emphasis supplied.) The record in this case makes it clear that leave of court to add a party to the existing case by amendment was never sought nor obtained. “Section 81A-121 [OCGA § 9-11-21] parallels Rule 21 of the Federal Rules of Civil Procedure, and the Federal courts have long construed it to require the obtaining of leave of court when the plaintiff seeks to assert a claim against one who is not already a party to the proceedings. The adding or dropping of parties requires the exercise of a discretion by the court, and, without the requirement that leave of court be obtained in doing so, there could be no exercise of discretion. It is important that the status of parties not be altered or changed save under the supervision of the court. . . . Obtaining leave of court is a requisite.” (Citations and punctuation omitted.) Robinson v. Bomar, 122 Ga. App. 564, 567 (2) (177 SE2d 815) (1970).

As in Slater v. Brigadier Homes, 198 Ga. App. 67 (400 SE2d 338) (1990), Dollar Concrete Construction Company was not a party to the suit at the time the amended complaint was filed. Therefore, “[A] binding precedent of the Supreme Court of Georgia is controlling in the instant case: ‘[Watson] contends correctly that (OCGA § 9-11-15 (a)) allows amendment as a matter of right before entry of a pre-trial order. Where, however, a party seeks to add a new party by amendment, as does [Watson] here, (OCGA § 9-11-15 (a)) must be read in pari materia with (OCGA § 9-11-21), which allows the dropping and adding of parties only “by order of the court on motion of any party.” Since no such motion or leave of court was granted in this case, the trial court [improperly [denied] [Dollar Concrete Construction Company’s] motion to dismiss.’ (Emphasis in original.) [Cit.]” Id. at 67-68.

Decided February 8, 1993

Reconsideration denied February 23, 1993

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, for appellant.

William N. Robbins, Joseph A. Maniscalco, Jr., Brian R. Hutchison, for appellees.

The Watsons argue that the amendment served only to correct a misnomer in the style of the case, and therefore leave is not required. This is not a misnomer case, because both Dollar Construction and Dollar Concrete Construction Company were in existence on the date the action was filed. The Watsons’ reliance on London Iron & Metal Co. v. Logan, 133 Ga. App. 692 (212 SE2d 21) (1975) is misplaced. The London case, and a more recent case, Abbott v. Gill, 197 Ga. App. 245 (398 SE2d 225) (1990) hold that when the real party defendant has been properly served, a plaintiff has the right to amend in order to correct the misnomer in the description of the defendant contained in the complaint. However, this principle cannot be applied here because Dollar Concrete Construction Company had never been properly served.

The Watsons submitted a copy of the sheriff’s return of service as an exhibit to their brief in opposition to the motion to dismiss. Pretermitting whether we can consider the return of service since the original return of service was not filed with the clerk of the court of DeKalb County and is not part of the official record in the case, the return is defective on its face. It states that the deputy “Served defendant Dollar Concrete Construction, Co....” and is dated August 8, 1991. Dollar Concrete Construction Company was not a defendant in the case on that date, nor was Muriel Dollar identified as registered agent. The return, and hence service, is fatally defective. The Watsons are asking this court to allow service on a non-party to an action and later allow them to amend the complaint to include the non-party in the action without leave of court, claiming that they can do so because service was valid. Such an end-run approach to joining proper parties to a suit flies in the face of even the most liberal application of the Civil Practice Act. Dollar Concrete Construction Company, who would have been the proper party, has never been served in this action and the trial court erred in denying its motion to dismiss.

Judgment reversed. Pope, C. J., and Carley, P. J., concur.


text:
    A92A2226.
    HEALTH IMAGES, INC. v. GREEN et al.
    (428 SE2d 378)
   Johnson, Judge.

Health Images brought an action against Wayne Green and Ruth Siegel to recoup commissions it alleges were prematurely paid for the development of Magnetic Resonance Imaging (MRI) “diagnostic facilities.” Answers and counterclaims for additional commissions were filed on February 3, 1992. The parties immediately initiated discovery. In April 1992, the case appeared on a peremptory calendar. Plaintiff’s counsel contacted the court and was told that they did not need to appear for the calendar. A peremptory calendar for June 19, 1992 was sent out. These calendars stated that cases appearing on the calendar are not considered ready for trial unless a letter is sent to the court and opposing counsel two weeks prior to the trial week indicating that the case is ready. On June 5, 1992, defendants’ counsel sent the requisite letter to the court and copied counsel for the plaintiff. Plaintiff’s counsel did not respond to the letter or notify the court that there was still outstanding discovery and that the case was not ready for trial.

At the call of the calendar on Friday, June 19, 1992, defendants’ counsel announced ready, and requested that the court specially set the case as he had witnesses from out of town. The court complied, and set the case for the following Tuesday, June 23,1992. Neither the court nor defendants’ counsel called or otherwise notified opposing counsel to inform him that the court had specially set the case for trial. On June 23, 1992, the main claim was dismissed for want of prosecution with prejudice. Judgment was entered on the counterclaim in the principal amount of $22,875, together with attorney fees of $6,906. Health Images appeals.

1. On the same day the trial court dismissed the main claim with prejudice, the Supreme Court of Georgia decided Kraft v. Abad, 262 Ga. 336 (417 SE2d 317) (1992). In Kraft, it was noted that “The rule [Superior Court Rule 14] and the statute [OCGA § 9-11-41 (b)] simply allow the court to dismiss the action and restricts the dismissal to one without prejudice.” (Emphasis supplied.) Id. The trial court erred in dismissing the main claim with prejudice.

2. OCGA § 9-11-40 (c) (2) provides: “The courts shall provide for the placing of actions upon the trial calendar upon request of a party and notice to the other parties.” Counsel for the plaintiff admits he was not present at the call of the peremptory calendar held on June 19, 1992, and that had he been, he would have known of opposing counsel’s request that the case be specially set. However, the statute clearly provides that after an action has been placed on a trial calendar at the request of a party, notice shall be provided to other parties. Failure to provide such notice is reversible error. Siano v. Spindel, 136 Ga. App. 288 (220 SE2d 718) (1975). Trial of the counterclaim, as well as the dismissal of the main claim, without proper notice having been given to opposing counsel was error and must be reversed.

Decided February 8, 1993

Reconsideration denied February 23, 1993

Schnader, Harrison, Segal & Lewis, James H. Cox, for appellant.

Miller & Towson, Wallace Miller III, George H. Hartwig III, for appellees.

Judgment reversed. Pope, C. J., and Carley, P. J., concur.

       This case is factually similar to TMS Ins. Agency v. Galloway, 205 Ga. App. 896 (424 SE2d 71) (1992). In TMS, however, plaintiff failed to receive notice of a hearing on defendant’s motion to compel at which his complaint was dismissed. Later, the publication of the non-jury calendar, at which evidence was presented and judgment entered on the counterclaim, incorrectly listed TMS’ former counsel. As a result, TMS was unrepresented at trial. Unfortunately for our purposes, the holding in that case was confined to the defective notice (by publication only) of the earlier hearing on the motion to compel. We reversed the trial court’s denial of TMS’ motion to set aside, reiterating that “ ‘(P)ublication of notice of a motion hearing date is not, by itself, sufficient compliance with § 9-11-6 (d).’ Goodwin v. Richmond, 182 Ga. App. 745 (356 SE2d 888) (1987).” (Emphasis supplied.) Id.


text:
    A92A2267.
    KEVINEZZ v. THE STATE.
    (428 SE2d 366)
   Blackburn, Judge.

On July 2, 1991, the appellant was arrested for misdemeanor offenses of vehicular homicide in the second degree, following too close, and having no proof of insurance. On July 24, 1991, counsel for the appellant filed certain motions, including one entitled “Demand for Jury Trial.” Formal accusations were filed in the State Court of Clayton County on September 6, 1991, but on October 2, 1991, after receipt of a lab report which indicated the presence of marijuana in the appellant’s blood and cocaine in her urine at the time of the incident, the case was transferred to the superior court. On October 30, 1991, the appellant was indicted for the felony offense of vehicular homicide and misdemeanor offenses of driving under the influence, following too close, and having no proof of insurance.

On November 15, 1991, the appellant filed a motion for acquittal, claiming that her demand for jury trial constituted a demand for speedy trial under OCGA § 17-7-170. Following a hearing, the trial court denied the motion for acquittal, on the grounds that the appellant’s demand for jury trial did not ask for a speedy trial, did not cite OCGA § 17-7-170, and did not contain language sufficient to put the state on notice that failure to try the appellant within two terms of court should result in discharge and acquittal. This appeal followed.

1. Although a purported copy of the appellant’s “Demand for Jury Trial” is attached to the appellant’s brief, the record does not contain the demand. This omission alone warrants affirmance of the denial of the appellant’s motion for acquittal. “ ‘It is a well-established appellate rule that “ ‘(t)he burden is on the appellant to show error by the record, and when a portion of the evidence . . . bearing upon the issue raised by the enumeration of error, is not brought up so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result.’ ” (Cit.)’ [Cit.]” Wells v. State, 201 Ga. App. 398, 399 (411 SE2d 125) (1991). The appellant’s burden of showing error affirmatively by the record is not discharged by recitations in the brief. Rogers v. State, 155 Ga. App. 685 (1) (272 SE2d 549) (1980).

2. In any event, assuming that the copy attached to the appellant’s brief is accurate, that “Demand for Jury Trial” was insufficient to constitute a demand for speedy trial under OCGA § 17-7-170 and invoke the extreme sanction of discharge and acquittal. That demand stated only: “Comes now the defendant in the above-styled case, and prior to arraignment and without waiving formal arraignment or any other rights, hereby demands a trial by jury. The defendant asks that this demand be placed upon the minutes of this Court.”

“[A] demand which merely requests a trial by jury is insufficient; to invoke the extreme sanction of OCGA § 17-7-170 the demand must provide a reasonable reference to the provisions of that section, or otherwise clearly indicate that it is a demand for speedy trial.” State v. Prestia, 183 Ga. App. 24, 25 (357 SE2d 829) (1987); see also State v. Allen, 192 Ga. App. 730 (386 SE2d 394) (1989). The appellant’s demand for jury trial in the instant case does not make any reference to OCGA § 17-7-170 or indicate in any way the demand for a speedy trial.

The appellant contends that a proposed order that was submitted along with the Demand for Jury Trial may be read in conjunction with the demand for jury trial to satisfy those requirements. That proposed order also is not contained in the record, but, assuming its content as maintained in the appellant’s brief, it merely ordered that the demand for jury trial was to be placed upon the minutes of the court, and “that the defendant shall be tried by a jury at this term or at the next term of this court.” The proposed order provided a signature space for the superior court (although the demand for jury trial was filed with the state court), but it was not signed. We reject the appellant’s contention that such a proposed order, which may or may not be signed and entered by the court, may supplement a simple demand for jury trial and convert it into a demand for a speedy trial. To do so would allow the appellant to “sandbag” the prosecution.

Decided February 1, 1993

Reconsideration denied February 23, 1993

Michael B. King, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

The nomenclature of a motion is not controlling on the trial court, State v. Allen, supra, but the proposed order supposedly submitted by counsel for the appellant along with the demand for jury trial may not reasonably be taken as a motion. Even if it were, it fails to identify the charges pending against the appellant by name, date, term of court, or case number, and thus would be insufficient to put the state on notice of the intention to invoke the sanction of OCGA § 17-7-170. Ferris v. State, 172 Ga. App. 729 (1) (324 SE2d 762) (1984).

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


text:
    A92A2370.
    CANTRELL v. FIRST TENNESSEE NATIONAL BANK ASSOCIATION.
    (428 SE2d 368)
   Beasley, Judge.

Appellee sued Ramsey as obligor and appellant Cantrell as guarantor to collect the unpaid balance on a promissory note. Cantrell appeals the grant of summary judgment to the bank and the denial of his cross-motion for summary judgment. Both rulings are erroneous.

The following is undisputed. On March 19, 1981, the bank loaned Ramsey $99,500 for which he executed a “single payment-interest bearing” promissory note, payable 360 days thereafter, and secured by 3,333 shares of stock in Farmbank Company. On the same date, appellant executed and delivered a letter to the bank which stated as follows: “In order to induce First Tennessee Bank N.A., Chattanooga to loan Garrard S. Ramsey, Jr. $99,500 which loan is secured by 3,333 shares of Farmbank Company, a one bank holding company located in Winchester, Tennessee, the undersigned does hereby agree to purchase from First Tennessee Bank so much of the stock pledged as security for the loan as is necessary to retire the loan amount plus interest and charges accrued, but in no instance shall the price paid be less than the book value of the stock as determined by generally accepted accounting principles. This agreement is necessary because the pledged stock is of limited marketability. If at the end of the term of the loan to Mr. Ramsey, he is unable, or does not desire to retire the loan, I, Jake E. Cantrell, will upon demand, as stated above, purchase so much of the pledged stock as is necessary to retire the loan plus accrued interest and charges.” The purpose for this repurchase arrangement was explained in a letter of the same date from Ramsey to the bank in which he acknowledged that, “all the pledged shares are of a closely held banking corporation and that there is no ready market for the sale of these shares.” In the event of his default, Ramsey “consented] to the sale of the pledged shares to Jake E. Cantrell for a price equal to the outstanding amount of the loan plus interest and accrued charges, but in no instance less than the book value of the stock. . . .”

In March 1982, Ramsey made payments of interest and principal reduction totaling approximately $28,000, in consideration for which the bank agreed to extend the maturity date of the loan until March 1983. In March 1983, he made payments of principal and interest totaling about $21,000, in consideration for which the maturity date of the loan was again extended another year. Appellant averred that he received no notification from the bank of the extension of the maturity date or modification of the note.

The bank notified Ramsey by letter dated June 8, 1983, that it deemed its collateral (the Farmbank shares) in jeopardy and demanded that the loan be paid in full by July 11 (later extended to August 15) or the bank would “call upon Mr. Cantrell to honor his agreement.” After appellant received a copy of that correspondence, he notified the bank by letter dated August 26 that “I will expect to comply with my repurchase agreement of March 19, 1981, when you have foreclosed on the pledge agreement created by Mr. Ramsey’s note of the same date payable to your bank, and are in a position to assign to me title to the shares constituting such pledge, in accordance with said repurchase agreement.”

When Ramsey failed to repay the loan, the bank called upon appellant to honor the repurchase agreement. He did not do so, resulting in the present suit.

Appellant averred in opposition to summary judgment that had the bank foreclosed upon its collateral either in March 1982 or June 1983, “the fair market value would have been sufficient to repay the debt.” In January 1984, the bank was placed under the receivership of the Federal Deposit Insurance Corporation at which time the “collateral became worthless.”

1. Appellant asserts that the March 19, 1981 letter did not constitute a guaranty. “[A] contract of suretyship or guaranty is one whereby a person obligates himself to pay the debt of another in consideration of a benefit flowing to the surety or in consideration of credit or indulgence or other benefit given to his principal.” OCGA § 10-7-1. Appellant did not obligate himself to pay Ramsey’s debt. He agreed to provide a market for the pledged collateral stock, but only to the extent of the value of the stock and only if the principal did not retire the note when the original term of the loan ended. Moreover, the letter agreement did not provide for joint and several liability of appellant with the principal, as is normally contemplated under OCGA § 10-7-1. Indeed, the bank did not ask appellant to pay the principal’s debt but requested that he honor his agreement to purchase the collateral stock. These factors distinguish appellant’s obligation from that of a traditional suretyship agreement.

Decided February 4, 1993

Reconsideration denied February 23, 1993.

Jake E. Cantrell, pro se.

Stewart, Melvin & House, Frank Armstrong III, for appellee.

2. Appellant claims that even if his obligation is joint and several with that of Ramsey as principal, he is statutorily discharged on two bases: OCGA § 10-7-21, because the bank’s action in modifying the terms of the note constituted a novation without his consent; OCGA § 10-7-22, because the extensions of the loan by the creditor bank increased his risk or exposure to greater liability due to the marked diminution of the resale value of the collateral stock.

OCGA § 10-7-22 provides: “Any act of the creditor . . . which injures the surety or increases his risk or exposes him to greater liability shall discharge him. ...” The language of the purported guaranty did not extend appellant’s obligation to subsequent extensions or renewals of the note. On the contrary, he agreed only to repurchase the Farmbank stock “at the end of the term of the loan.” During this original term, Farmbank presumably was financially stable, and thus appellant assumed little risk in agreeing to repurchase its stock. Extending the period in which appellant would be required to repurchase the stock increased his risk and had the potential of exposing him to greater liability. By delaying pursuit of its remedies without appellant’s consent, the bank increased his risk. “[I]t is the unconsented change in potential risk or liability not the imposition of greater liability that causes the discharge.” Bank of Terrell v. Webb, 177 Ga. App. 715, 717 (3) (b) (341 SE2d 258) (1986). An unconsented increase in risk is an independent ground for discharge of the surety. Upshaw v. First State Bank, 244 Ga. 433 (260 SE2d 483) (1979). Appellant’s obligation was accordingly discharged under OCGA § 10-7-22.

We need not reach the other basis advanced.

Judgment reversed. Birdsong, P. J., and Andrews, J., concur.


text:
    A92A2443.
    SANDERS et al. v. ALLSTATE INSURANCE COMPANY.
    (428 SE2d 575)
   Beasley, Judge.

Defendant insurer was granted summary judgment, based on expiration of the statute of limitation, in a suit to collect the benefits under a policy of renter’s insurance. It had denied plaintiffs’ claim for fire damage.

The facts are not in dispute. On December 1, 1990, a fire occurred at plaintiffs’ residence, damaging the dwelling and contents. At the time, plaintiffs were insured under an Allstate renters policy which covered fire loss. They timely submitted a proof of loss form and list of damaged contents as required under the policy, and they were examined under oath by the insurer.

On April 1, 1991, plaintiffs were notified by certified mail that their claim was denied and their policy declared void.

The policy required that “any suit or action [against the insurer] must be brought within one year after the date of loss.” The parties agree that the date for filing suit expired on November 30, 1991, which fell on a Saturday. The complaint was filed on Monday, December 2, the first business day thereafter.

1. Allstate Ins. Co. v. Stephens, 239 Ga. 717 (238 SE2d 382) (1977), was the last pronouncement by the Supreme Court on this question. There the Court construed former Code Ann. § 102-102 (8) (the predecessor to OCGA § 1-3-1 (d) (3)), which provided: “When a number of days is prescribed for the exercise of any privilege, or the discharge of any duty, only the first or last day shall be counted; and if the last day shall fall on Saturday or Sunday, the party having such privilege or duty shall have through the following Monday to exercise such privilege or to discharge such duty.” Because Code Ann. § 102-102 (8) applied to obligations in which “a number of days is prescribed,” the Court distinguished between contractual limitations stated in terms of days and those stated in terms of months and years, holding that former Code Ann. § 102-102 (8), “applies only to limitations in terms of days. It does not apply where the limitation is in terms of months or years.”

The legislature eliminated that distinction in repealing Code Ann. § 102-102 (8) and codifying OCGA § 1-3-1 (d) (3) (Ga. L. 1985, p. 648, § 1). It specifies: “when a period of time measured in days, weeks, months, years, or other measurements of time except hours is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted; and, if the last day falls on Saturday or Sunday, the party having such privilege or duty shall have through the following Monday to exercise the privilege or to discharge the duty.” Uniformity was achieved by making this Code section applicable to the computation of time periods under the Civil Practice Act. OCGA § 9-11-6 (a) (Ga. L. 1985, p. 648, § 2).

There is no longer a basis for distinguishing between days and months or years in computing time limitations. As Chief Justice Nichols aptly observed in his dissent in Stephens, “I see no rational reason for a rule which denies an individual his day in court merely because a contractual limitation which sets the time within which a suit may be filed is expressed in terms other than days. If the last day of a limitation falls on a day which sees a business operation closed, or a courthouse vacant, then the next day of business should be the last day of the limitation. If there is no clerk with which to file a pleading, or no corporate office open to receive a contracted-for payment, then the only fair construction of the contractual or statutory limitation is one which sets the next business day, following the nonbusiness day on which the term expires, as the last day of the limitation.” Neither Universal Scientific v. Safeco Ins. Co. of America, 174 Ga. App. 768 (331 SE2d 611) (1985) (physical precedent only), nor Desai v. Safeco Ins. Co. of America, 173 Ga. App. 815 (328 SE2d 376) (1985), control. Although both cases held that suit was barred when filed on the Monday following the expiration of the one-year period which occurred on a Saturday or Sunday, those contracts were entered into and the losses experienced prior to enactment of the 1985 version of OCGA § 1-3-1 (d) (3).

2. The question remains whether OCGA § 1-3-1 (d) (3), applies to the contractual suit limitation of the Allstate policy. Stephens, supra, expressly reaffirmed the holding in Brooks v. Hicks, 230 Ga. 500 (197 SE2d 711) (1973), that by analogy former Code Ann. § 102-102 (8) “applies to contracts as well as statutes.” Stephens, supra at 718. “ ‘It is true Code Ann. § 102-102 (8) is a rule of statutory construction, and does not . . . apply to contractual limitations; yet, this Code Section states a rule of reason with respect to limitations, be they statutory or contractual, which should be applied to limitations in contracts.’ ” Stephens, supra at 719, quoting Brooks v. Hicks, supra at 501. Although Stephens was limited to contractual limitations stated in terms of days, its rationale survives the statutory expansion. We therefore hold that OCGA § 1-3-1 (d) (3) is applicable to the one-year suit limitation contained in the Allstate renters policy. The policy itself provided that “[w]hen [its] provisions are in conflict with the statutes of the state . . . the provisions are amended to conform to such statutes.” The one-year limitation period is construed to conform to the computation method set forth in OCGA § 1-3-1 (d) (3).

Judgment reversed. Birdsong, P. J., and Andrews, J., concur.

Decided February 4, 1993

Reconsideration denied February 23, 1993

Wayne R. Rasmussen, for appellants.

Webb, Carlock, Copeland, Semler & Stair, William E. Zschunke, Julianne L. Swilley, for appellee.


author: Andrews, Judge.

text:
    A92A2056.
    SMITH et al. v. THE STATE.
    (428 SE2d 403)
   Andrews, Judge.

Appellants, husband and wife George and Merylin Smith, were convicted of violating the Georgia Controlled Substances Act. George Smith was also convicted of one count of possession of a firearm during the commission of a felony.

1. In their first enumeration of error, the Smiths claim that the trial court erred in “admitting into evidence the search warrant” because the affiant police officer failed to establish the reliability of the confidential informant and because the affiant arresting officer did not attach a photocopy of the “buy money” to such warrant.

The search warrant for the persons and premises of appellants was issued on June 25, 1991 after a hearing before a magistrate. At the hearing on the Smiths’ motion to suppress, narcotics agent Winkler testified regarding the affidavit that he executed in support of the warrant. Winkler’s affidavit stated, in part, that during March 1991, agents of the North Georgia Narcotics Enforcement Team executed a search at an identified residence at which a variety of prescription drugs was seized. Winkler avowed that after the seizure, the residents of this dwelling were arrested and interviewed. During the interview, the arrestees revealed that they had acquired the prescription drugs from a George Smith, who resided at #40 Cohutta View Apartments near the Murray County High School.

Winkler’s affidavit then outlined the details of a controlled buy of diazepam (Valium) from George and Merylin Smith utilizing a confidential informer, referred to as informant “605,” who told Winkler that he could purchase the substance at the Smiths’ residence. The affidavit states that Winkler observed as “605” entered the Smiths’ residence with a micro recorder and “buy money,” which had been photocopied. The informer bought various drug tablets with the money and immediately returned to Winkler. Informer “605” gave Winkler the micro recorder and cassette tape, which corroborated his depiction of the sales transaction within the residence. The cassette tape was played for the magistrate.

Winkler’s affidavit next states that on June 24, 1991, he conducted interviews with two people who had been arrested for traffic violations and who subsequently were found to be in possession of Valium. Both people stated that they had purchased the drugs from George Smith and they identified the Smiths’ residence as the same apartment which Winkler had observed informer “605” entering.

Citing State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984), Smith claims that the warrant was defective in that there was no showing of the reliability or truthfulness of the confidential informer, nor was there a demonstration of prior arrests based on information from the informer.

We find this argument without merit for a number of reasons. The affidavit here was based on various information which showed that prescription drugs were being sold at the Smiths’ residence. “ ‘In making a determination as to probable cause pursuant to the totality of the circumstances test enunciated in Illinois v. Gates, (462 U. S. 213) (103 SC 2317, 76 LE2d 527) (1983), the 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.’ [Cits.]” Adams v. State, 201 Ga. App. 12, 13 (2) (410 SE2d 139) (1991); Stephens, supra; see generally OCGA § 17-5-21. In the instant case, we find that the magistrate had a substantial basis for concluding that probable cause existed to issue the warrant.

Secondly, citing Pruitt v. State, 123 Ga. App. 659 (182 SE2d 142) (1971), the Smiths claim that because no photocopy of the buy money was attached to the search warrant, the money was improperly submitted as evidence in that the Fourth Amendment requires that search warrants particularly describe the things to be seized. The instant warrant included among items to be seized “monies derived from the sale of controlled substances.” We are unpersuaded by the Smiths’ argument that a photocopy of the money was required to be attached to the affidavit. See generally OCGA § 17-5-23.

2. In their second enumeration, the Smiths contend that the trial court erred in allowing the confidential informant to testify to the meaning of garbled words on the audiotape. The Smiths argue that since the court had already refused to allow the transcript of the audiotape into evidence and had determined that the audiotape was the “best evidence,” the subsequent admission of this testimony was erroneous.

It is not clear from the trial transcript, or from the arguments here, whether the testimony at issue interpreted words which were garbled and incomprehensible on the audiotape or whether the testimony was a further explanation of the audible audiotape. In either case, the Smiths’ arguments that there was error are without merit. If the objection here is interpreted as a “best evidence” objection, we find no error in the admission of the testimony. See OCGA § 24-5-4; compare Boswell v. State, 135 Ga. App. 104 (217 SE2d 410) (1975). Similarly, if the Smiths’ grievance was that the statements explained the background of the audiotape — that it explained what was understood by the parties to the conversation, but obscure to the jury — we find no error in the admission of the testimony. Moreover, there was no perfected objection to the testimony on this latter basis.

Decided February 23, 1993.

Newton D. St. John, Jr., for appellants.

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

Judgment affirmed. Birdsong, P. J., and Beasley, J., concur.